right belongs to her, or that she is denied the equal protection of the law.

The history of this amendment is familiar to all and for all of the purposes of this argument may be briefly summarized. At the time of its adoption the colored race had been recently emancipated from a condition of servitude, and made citizens of the States. It was apprehended that in some, if not all, the States of the Union, feelings of antipathy between the races would cause the dominant race, by unfriendly legislation, to abridge the rights of the other and deny to them equal privileges and the protection of the laws. To guard the previously subject race from the effect of such discrimination, these provisions are made a part of the fundamental law of the land, and their rights were placed under the protection of the Federal government. Their object has been defined by Mr. Justice Strong, Ex parte Virginia, 100 U. S. Rep. 344, where it is said, that "one great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States." The same learned judge, in Strauder v. West Virginia, 100 U. S. Rep. 306, also says: "It was designed to secure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give that race the protection of the general government in that enjoyment when it should be denied by the States."

It will be observed that the language of the amendment is peculiar in respect to the rights which the State is forbidden to abridge. Although the same section makes all persons born or naturalized in the United States, and subject to the jurisdiction thereof, citizens of the United States and of the State wherein they reside, yet in speaking of the class of privileges and immunities which the State is forbidden to deny the citizen, they are referred to as the privileges and immunities which belong to them as citizens of the United States. It has been argued from this language that such rights and privileges as are granted to its citizens and depend solely upon the laws of the State for their origin and support, are not within the constitutional inhibition, and may lawfully be denied to any class or race by the State at their will and discretion. This construction is distinctly and plainly held in the Slaughter-House case, 16 Wall. 36, by the Supreme Court of the United States. The doctrine of that case has not, to our knowledge, been retracted or questioned by any of its subsequent decisions.

It would seem to be a plain deduction from the rule in that case that the privilege of receiving an education at the expense of the State, being created and conferred solely by the laws of the State, and always subject to its discretionary regulations, might be granted or refused to any individual or class at the pleasure of the State. This view of the question is also taken in State v. McCann, 21 Ohio, 210, and Cary v. Carter, 48 Ind. 337. The judgment appealed from might therefore very well be affirmed upon the authority of these cases.

But we are of the opinion that our decision can also sustained upon another ground, which will be equally satisfactory as affording a practical solution of the questions involved. It is believed that this provision will be given its full scope and effect when it is so construed as to secure to all citizens wherever domiciled equal protection under the laws, and the enjoyment of those rivileges which belong as of right to each individual citizen. This right, as effected by the questions in this case in its fullest sense, is the privilege of obtaining an education under the same advantages, and with equal facilities for its acquisition, with those enjoyed by any other individual. It

is not believed that these provisions were intended to regulate or interfere with the social standing or privileges of the citizen, or to have any other effect than to give to all, without respect to color, age or sex, the same legal rights and the uniform protection of the same laws.

In the nature of things there must be many social distinctions and privileges remaining unregulated by law, and left within the control of the individual citizens as being beyond the reach of the legislative functions of government to organize or control. The attempt to enforce social intimacy and intercourse between the races by legal enactment would probably tend only to embitter the prejudices, if any such there are, which exist between them, and produce an evil instead of a good result. Roberts v. City of Boston, 5 Cush. 198.

Whether such intercourse shall ever occur must eventually depend upon the operations of natural laws and the merits of individuals, and can exist and be enjoyed only by the voluntary consent by the persons between whom such relations may arise, but this end can neither be accomplished or promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government therefore has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it is organized, and performed all the functions respecting social advantages with which it is endowed.

The design of the common-school system of this State is to instruct the citizen, and where for this purpose they have placed within his reach equal means of acquiring an education with other persons, they have discharged their duty to him, and he has received all that he is entitled to ask of the goverument with respect to such privileges. The question as to how far he will avail himself of those advantages, or having done so, the use which he will make of his acquirements, must necessarily be left to the action of the individual.

The claim that is now made, that any distinction made by law and founded upon difference of race or color is prohibited by the Constitution leads to startling results, and is not believed to be well founded. While the occasion of the enactment of the constitutional amendments was such as we have referred to, its language embraces and is addressed to all classes alike, and if susceptible of the construction attempted to be placed upon it, must inhibit any enactment by the State which classifies the citizens, and authorizes associations to be sustained, in whole or in part, by public bounty, for the benefit of any special class. The Slaughter-House case, supra.

When the large number of such institutions organized, not only in this but in other States of the Union, for the exclusive use and benefit of the colored race, and which have effected much for his improvement and advantage, is considered, it is believed that no sincere friend of that people could desire to raise the questions involved in this appeal, or wish any other result than that which should sustain them in the enjoyment of those institutions specially organized for their benefit and advantage. It would seem to follow as the necessary result of the appellant's contention that the action of the legislatures of the various States, providing schools, asylums, hospitals, and benevolent institutions for the exclusive benefit of the colored, as well as other races, must be deemed to be infractions of constitutional provisions and unlawful exercise of legislative power. The literal application of its provisions as interpreted by him would prevent any classification of citizens for any purpose whatever under the laws of the State, and subvert all such as

sociations as are limited in their enjoyment to classes distinguished either by sex, race, nationality or creed. If the argument should be followed out to its legitimate conclusion it would also forbid all classification of the pupils in public schools founded upon the distinctions of sex, nationality, or race, and which it must be conceded are essential to the most advantageous administration of educational facilities in such schools. Seeing the force of these contentions the appellant concedes that discrimination may be exercised by the school authorities with respect to age, sex, intellectual acquirements and territorial location, but he claims that this cannot, under the Constitution, be extended to distinctions founded upon difference in color or race. We think the concession fatal to his argument. The language of the amendment is broad, and prohibits every discrimination between citizens as to those rights which are placed under its protection.

If the right therefore of school authorities to discriminate in the exercise of their discretion as to the methods of education to be pursued with different classes of pupils be conceded, how can it be argued that they have not the power, in the best interest of education, to cause races and nationalities, whose requirements are manifestly different, to be educated in separate places?

We cannot see why the establishment of separate institutions for the education and benefit of different races should be held any more to imply the inferiority of one race than that of the other, and no ground for such an implication exists in the act of discrimination itself. If it could be shown that the accommodations afforded to one race were inferior to those enjoyed by another, some advance might be made in the argument, but until that is established no basis is laid for a claim that the privileges of the respective races are not equal.

Institutions of this kind are founded every day in the different States under the law for the exclusive benefit of particular races and classes of citizens, and are generally regarded as favors to the races designated instead of marks of inferiority.

A natural distinction exists between these races which was not created, neither can it be abrogated, by law, and legislation which recognizes this distinction and provides for the peculiar wants or conditions of the particular race can in no just sense be called a discrimination against such race, or an abridgment of their civil rights. The implication that the Congress of 1864, and the State Legislature of the same year, sitting during the very throes of our civil war, who were respectively the authors of legislation providing for separate education of the two races, were thereby guilty of unfriendly discrimination against the colored race will be received with surprise by most people and with conviction by none. Recent movements on the part of the colored people of the South, through their most intelligent leaders, to secure Federal sanction to the separation of the two races, so far as the same is compatible with their joint occupation of the same geographical territory, afford strong evidence of the wishes and opinions of that people as to the methods which in their judgments will conduce most beneficially to their welfare and improvement.

This appeal has been argued by the appellant upon the assumption that the colored children have been excluded from something to which white children are admitted. The assumption is, we think, erroneous. The case shows that they have been afforded in all respects the same rights and the same advantages that have been awarded to the whites, and there is no more foundation for the claim that they have been ex-. cluded from the public schools of Brooklyn than there is for a claim that the pupils of one district, who are

confined in their attendance to the district in which they reside, are excluded from its schools, or that the female pupils are excluded from equal privileges because of their exclusion from male schools on account of the regulations which require the separate education of the two sexes.

The right of the individual as affected by the ques tion in hand is to secure equal advantages in obtain ing an education at the public expense, and where that privilege is afforded him by the school authorities, he cannot justly claim that his educational privileges have been abridged, although such privileges are not afforded him at the precise place where he most desires to receive them. It was quite pertinently said by the court in Cary v. Carter, 48 Ind. 363: "In our opinion there would be as much lawful reason for complaint by one scholar in the same school that he could not occupy the seat of another scholar therein at the same time the latter occupied it, or by scholars in the different classes in the same school, that they were not all put in the same class, or by scholars in different schools that they were not all placed in one class, as there is that white and black children are placed in distinct classes and taught separately or in separate schools."

The fact that by this system of classification one person is required to go further to reach his place of instruction than he otherwise would is a mere incident to any classification of the pupils in the public schools of a large city and affords no substantial ground of complaint.

It is quite impracticable for the authorities to take into account and provide for the gratification of the taste, or even the convenience of the individual citizen, in respect to the place or condition under which he shall receive an education. In the nature of things one pupil must always travel further to reach a fixed place of instruction than another, and so too the resident of one district is frequently required to go further to reach the school established in his own district than a school in an adjoining district, but these are incou veniences incident to any system, and cannot be avoided. It is only when he can show that he is deprived of some substantial right which is accorded to other citizens and denied to him that he can successfully claim that his legal rights have been invaded.

The highest authority for the interpretation of this amendment is afforded by the action of those sessions of Congress which not only immediately preceded but were also contemporaneous with the adoption of the amendment in question.

Exclusive schools for the education of the colored race were originally established in the District of Columbia by Congress in 1862, since which time that body has, by repeated amendments to the original act, sanotioned and approved, not only the constitutionality of such legislation, but also the policy of such system of education.

Chapter 151, Laws of Congress 1862; chapter 83, Laws 1863; chapter 156, Laws 1864; chapter 217, Laws 1866; chapter 308, Laws 1873.

The following provision which constitutes section 16 of chapter 156 of the Laws of 1864 is especially sig nificant. That "any white resident of said county shall be privileged to place his or her child, or ward, at any one of the schools, provided for the education of white children in said county, he or she may think proper to select, with the consent of the trustees of both dis tricts, and any colored resident shall have the same rights with respect to colored schools." As far as we have been able to discover this provision still remains in force and is the law of the District of CoJumbia.

The 39th Congress which originated and adopted the amendment in question, not only made appropria

tions, and assigned funds for the support of schools in the District of Columbia, established for the education of colored pupils exclusively. Chap. 217, Laws of U.S., passed July 23, 1866, but they also appropriated moneys for the support of an institution established therein for the exclusive benefit of destitute colored women and children.

If regard be had to that established rule for the construction of statutes and constitutional enactments, which requires courts in giving them effect to regard the intent of the law-making power, it is difficult to see why the considerations suggested are not controll ing upon the question under discussion.

The question here presented has also been the subject of much discussion and consideration in the courts of the various States of the Union, and it is believed, has been, when directly adjudicated upon, uniformly determined in favor of the proposition that the separate education of the white and colored races is no abridgment to the rights of either.

As early as 1849 the subject under circumstances precisely similar to those existing in this case was considered by the Supreme Court of Massachusetts, in the case of Roberts v. City of Boston, 5 Cush. 198, and the court, Chief Justice Shaw writing, says: "Conceding therefore in the fullest manner that colored persons, the descendants of Africans are entitled by law in this Commonwealth to equal rights, constitutional and political, civil and social, the question then arises whether the regulation in question which provides separate schools for colored children, is a violation of any of their rights." And they there held that it was not, and they further say: "The law has vested the power in the committee to regulate the system of distribution and classification, and where this power is reasonably exercised, without being abused or perverted by colorable pretenses, the decision of the committee must be deemed conclusive. The committee apparently upon great deliberation have come to the conclusion that the good of both classes of schools will be best promoted by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt that this is the honest result of their experience and judgment." The Supreme Court of Ohio in the case of The State v. McCann, supra, had before them the effect of the constitutional amendment in a case precisely similar to the one at bar, and held by the unanimous opinion of all of the members of that court, that the establishment of separate schools for the education of colored children, and their exclusion from the schools designed for whites alone, did not constitute a violation of the rights of colored persons under the Constitution. The following cases arising in different States may be referred to as supporting the same doctrine. Carey v. Carter, 48 Ind. 327; People v. Euston, 13 Abb. (N. S.) 150; Wood v. Flood,17 Am. Rep. 405; Dallas v. Fosdick, 40 How. 249; State v. Duffy, 8 Am. Rep. 713.

These cases show quite a uniform current of authority in favor of that interpretation of the constitutional amendment which we have given to it. We have given careful examination to the various cases cited by the appellant's counsel in support of his argument and are of the opinion that none of them conflict with the conclusions at which we have arrived. The following cases cited by him arose under statutes which either expressly forbade or did not authorize the school authorities to separate the races, and assign them to different places for instruction. Board of Education v. Tinnon, 20 Kan. 1; Clark v. Board of Directors, 40 Iowa, 266; Smith v. Directors, 40 id. 518; Dove v. School Dist., 41 id. 689; People v. Board of Education, 101 Ill. 308; People v. Board of Education, 18 Mich. 400. The following cases, also cited by the appellant, are distinguishable from this, as arising under

the laws of the several States or districts where rendered which absolutely prohibited the particular act complained of. They did not involve the construction of the Constitutional Amendments on the rights of colored persons arising thereunder. Central Railroad Co v. Green, 80 Penn. St. 421; Decuir v. Benson, 2 La. Ann. 1; Donnell v. State, 48 Miss. 680; Colyer v. Union Packet Co., 37 Iowa, 145.

In the case of Railroad Co. v. Brown, 17 Wall. 446, the question arose under a statute which forbade a railroad company from excluding any person "from the cars on account of color." The court construed the act according to their understanding of the intent of Congress in passing the statute, and held that colored people could not be excluded from any car on account of their color. The case of Strauder v. West Virginia, 100 U. S. 303, is strongly pressed upon our attention as an authority by the appellant. We do not consider it to be so.

In that case a colored man was placed upon trial for murder, under the laws of a State which excluded colored persons, however competent, from serving as jurors in its courts. It was held that this law discriminated against the colored race, and deprived them of the right of being tried before a jury composed in part, at least, of persons of their own race, and which right was enjoyed by their white fellow citizens. It was rightly held that this statute denied them the equal protection of the law, and was a violation of the Constitutional Amendment. We can see no analogy between these cases.

Having thus attempted to show that principle and authority both concur in the conclusions which we have reached in regard to the questions presented on this appeal, it only remains to refer to one or two other suggestions bearing less directly upon the questions presented which have been made for our consideration.

The argument of the appellant's counsel, which is founded upon that clause of the Constitutional Amendment, granting to every citizen the equal protection of the law, must fall with his main argument, as being founded upon the unwarranted assumption that this protection has been denied to the relator in this case. Equality and not identity of privileges and rights is what is guaranteed to the citizen, and this we have seen the relator enjoys. So also the claim made that the laws of this State authorizing the establishment of colored schools was repealed by the Civil Rights Act (chap. 186, Laws of 1873), is not well founded. It is not pretended that there has ever been any express repeal of these laws by the act in question, but it is claimed that such school laws containing discriminations against the colored race are impliedly repealed by its enactment. We are thus invited to hold the school laws repealed by implication, a method frequently condemned and never favored by the courts.

It is difficult to see how there is any inconsistency even between these several laws. The act of 1873 provides that colored persons shall have "full and equal enjoyment of any accommodation, advantage, facility or privilege furnished by the school authorities" to other citizens. By another section the use of any term in a statute which discriminates against persons of color is repealed and annulled. This statute provides only for equal facilities and advantages for the colored. race, and these we have seen the relator under the general school laws of the State enjoys. It also condemns the use of any term in a statute which discriminates against colored people. We have attempted to show that the establishment of separate institutions for their education and support were not a discrimination against them.

It will be observed that the statutes nowhere require the school authorities to establish separate schools for

the exclusive use of the two races, but they leave that subject to the discretion of such authorities.

Suppose actual experience had demonstrated that on account of the discomforts and annoyances to which a minority are ever subjected on account of race prejudice, the joint education of the two races was detrimental to the interests of one of them, or the wishes of the colored race in favor of separate places of education had been conclusively expressed, would it not be a just and reasonable exercise of the discretion of the school authorities to establish separate schools in such places, and could it in any sense be said when that was done, that either race was discriminated against by such exercise of discretion? We think not. It is undoubtedly true that in many localities in this State the school authorities have not availed themselves of their authority to cause separate places of education to be established for the respective races, and in those places the joint education of the race has been carried on. This fact seems to show that this question may safely and fairly be left to their discretion, and in time, where that course may be deemed best, it will be voluntarily adopted by such authorities. Certainly this court cannot determine as a question of law that there are not localities in the State in which, under the peculiar animosities affecting that society, the establishment of separate schools for the education of the colored race may not be the wisest and most beneficent exercise of discretion in their favor. The statutes of the State have left that question entirely to the school authorities, and we think have wisely done so. We cannot review the exercise by them of that discretion in any particular instance and determine that they have mistakenly or imprudently discharged the duty which the law has cast upon them.

It is not discrimination between the two races which is prohibited by law, but discrimination against the interest of the colored race. We cannot conceive

it to be possible that it can be successfully maintained that in the establishment of schools, asylums, hospitals and charitable institutions for the exclusive enjoyment of particular races or classes, that the founders thereof are justly subject to the implication of unfriendly conduct toward the class for whom such institutions are designed.

The same Legislature which enacted the so-called Civil Rights bill also re-invested the school authorities of Brooklyn with the power conferred by the previously existing statutes relating to the establishment of colored schools in that city, and it can hardly be implied that they intended by this act to repeal statutes which were immediately thereafter referred to by them as still existing laws.

We have thus, without considering the question as to whether the rights to the writ of mandamus might not have been within the discretion of the court of original jurisdiction, and therefore unappealable, and the further question as to whether the respondent was the proper person to whom it should be addressed, arrived at the conclusion upon the merits, that the order should be affirmed.

Rapallo, Miller and Earl, JJ. concur; Danforth, J., reads dissenting opinion; Finch, J., concurs: Andrews, J., absent

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-TAXATION OF CORPORATION NOT VIOLATION OF CHARTER-IMPAIRING CONTRACT.A license tax upon a gas light company which was granted by charter by State, a specified privilege, held not a violation of the charter even though the license tax tended to destroy the privilege. The Constitution

of the United States does not profess in all cases to protect property from unjust or oppressive taxation by the States. That is left to the State Constitutions and State laws. In Erie Railroad Co. v. Pennsylvania, 21 Wall. 492, it was said: "This court has in the most emphatic terms and on every occasion declared that the language in which the surrender (of the right of taxation) is made, must be clear and unmistaka ble. The covenant or enactment must distinctly express that there shall be no other or further taxation. A State caunot strip herself of this most essential power by doubtful words. It cannot by ambiguous language be deprived of this highest attribute of sovereignty. The principle has been distinctly laid down in cach of the cases referred to. It has never been departed from." See also Providence Bank v. Billings, 4 Pet. 514; Herrick v. Randolph, 13 Wall. 531; North Missouri R. Co. v. Maguire, 20 id. 40; Delaware R. Tax, 18 id. 206. Memphis Gaslight Co. v. Taxing District of Shelby County. Opinion by Miller, J. [Decided Nov. 26, 1883.]

INJUNCTION-WILL NOT ISSUE TO RESTRAIN COL LECTION OF ILLEGAL REVENUE TAX.-A bill in equity will not lie to enjoin a collector of internal revenue from collecting a tax assessed by the commissioner of internal revenue against a manufacturer of tobacco, although the tax is alleged in the bill to have been illegally assessed. The remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The

remedy so given is exclusive, and no other remedy can

be substituted for it Such has been the current of decisions in the Circuit Courts of the United States, and it is a current view of the law. Howland v. Soule, Deady, 413; Pullan v. Kinsinger, 2 Abb. U. S. 94; Robbins v. Freeland, 14 Int. Rev. Rec. 28; Delaware R. Co. v. Pretty man, 17 id. 99; United States v. Black, 11 Blatchf. C. C. 543; Kissenger v. Bean, 7 Bissell, 600; United States v. Pacific R. Co., 4 Dill. 69; Alkan V. Bean, 23 Int. Rev. Rec. 351; Kensett v. Stivers, 18 Blatchf. 397; Cheatham v. United States, 92 U. S. 85, 88; State Railroad Tax Cases, id. 575, 613. Snyder v. Marks. Opinion by Blatchford, J. [Decided Nov. 12, 1883.]

LIMITATION -DEFENSE OF, MUST BE RAISED BY PLEADING.-In the absence of a statutory rule to the contrary, the defense of a statute of limitations, which is not raised either in pleading, or on the trial, or before judgment, cannot be availed of. In a suit to recover back internal revenue taxes, tried by the Circuit Court without a jury, the court having found the facts, and held that the taxes were illegally exacted, but that the suit was barred by a statute of limitation, rendered a judgment for the defendant. On a writ of error by the plaintiff, the record not showing that the question as to the statute of limitations was raised by the pleadings, or on the trial, or before judg ment, and the conclusion of law as to the illegality of the taxes being upheld, this court reversed the judg ment and directed a judgment for the plaintiff to be entered below. Storm v. United States, 94 U. S. 76, 81; Upton v. McLaughlin, 105 id. 640. Relzer v. Wood. Opinion by Blatchford, J.

[Decided Nov. 12, 1883.]

PUBLIC OFFICER REDUCTION OF SALARY-CONSTRUCTION OF STATUTE-POWER OF CONGRESS TO REDUCE-IMPAIRING CONTRACT.-By an act of Congress passed in 1870, it was provided as follows: "The salaries of the chief justices and associate justices of the territories of New Mexico, Washington, Wyoming, etc., shall be three thousand dollars each per annum." This statute remaining in force, Congress, on March 3,

1877, passed an act entitled "An act making appropriations for the legislative, executive and judicial expenses of the government for the year ending June 30, 1878, and for other purposes." (19 Stat. 294.) This act declared as follows: "That the following sums be and the same are hereby appropriated out of any money in the treasury not otherwise appropriated, in full compensation for the service of the fiscal year ending June 30, 1878, for the objects hereinafter expressed. "Government in the territories." 44 Territory of Wyoming. For salaries of governor, chief justice and two associate judges, at two thousand six hundred dollars each. Held, that the latter act altered the salary of the chief justice of Wyoming to $2,600 per annum. The act of 1870 fixing the salary of the justice at $3,000 was not a contract that the salary should not be reduced during his term of office. Butler v. Pennsylvania, 10 How. 402. Nor was there any provision of the Constitution which forbade a reduction. Clinton v. Engelbrecht, 13 Wall. 434. Congress therefore could without the violation of any contract reduce the salary of appellee, and had the constitutional power to do so. Certain well-settled rules of interpretation are applicable to this case. One is that a legislative act is to be interpreted according to the intention of the legislation apparent upon its face; Wilkinson v. Leland, 2 Pet. 627; another that if possible, effect must be given to every clause, section and word of the statute: Bacon's Abr. Statute, 1, 2; Powlter's case, 11 Coke, 29a, 34a; Potter's Dwarris, 194; Opinion of Justices, 22 Pick. 571; and a third, that where two acts are in irreconcilable conflict the latter repeals the earlier act, even though there be no express repeal. McCool v. Smith, 1 Black, 459; United States v. Tynen, 11 Wall. 88; Red Rock v. Henry, 106 U. S. 596; United States v. Inim, 5 McLean, 178; West v. Pine, 4 Wash. 691; Britton v. Commonwealth, 1 Cush. 302. United States v. Fisher. Opinion by Woods, J. [Decided Nov. 5, 1883.]

KANSAS SUPREME COURT ABSTRACT. JANUARY TERM, 1883.*

NEGLIGENCE FIRE SET BY ENGINE.- While in an action against a railroad company to recover damages on account of fire caused by a passing engine, evidence of the single fire may not be sufficient to warrant a finding of negligence against the company, yet when it appears that at or about the same time several fires are by the same engine thus caused, and that only at or about that time were any fires caused by such engine although used continuously for mouths and also that an engine in good order and properly managed does not ordinarily cause fires, held, that a jury is justified in finding negligence, and this notwithstanding it is unable to point out specifically wherein the negligence consists. As defects in an engine and negligence in its management are matters peculiarly within the kuowledge of the railroad company, it is not reasonable to expect of a stranger direct evidence of the specific defects or negligence, and it is not error to charge the jury to that effect. Missouri Pacific Railway Co. v. Kincaid. Opinion by Brewer, J.

SPECIFIC PERFORMANCE WILL NOT BE DECREED OF COURSEEQUITY AND DILIGENCE ESSENTIAL. Upon breach of a contract for the sale of real estate, it is not a matter of course for the court to enter a decree of specific performance. That will be done only when upon all the facts it is equitable it should be done. He who asks specific performance should show the facts which make such a decree equitable; and a failure to do this justifies a refusal of the decree. *Appearing in 24 Kansas Reports.

Lapse of time in which a party fails to perform his part of the contract or to insist upon his rights will sometimes prove fatal; and especially after a claim of forfeiture by the adverse party, acquiescence in the claim for even a comparatively short period will often be taken as a consent to the forfeiture and a bar to any decree. A brief reference to some of the decided cases may not be uninstructive. In England, in Marquis of Hertford v. Boore, 5 Ves. 719, a delay of four. teen months was considered no bar. In Eads vWilliams, 4 De G. M. & G. 674, a delay of three and a half years was adjudged fatal. In Southcomb v. The Bishop of Exeter, 6 Had. 213, a delay from January 17, 1842, to August 30, 1843, was held to have the same effect. In Lord James Stuart v. Railway Co., 1 De G. M. & G. 721, a delay from October, 1848, to July, 1850, was thought fatal. See also Spurrier v. Hancock, 4 Ves. 667; Harrington v. Wheeler, id. 686; Guest v. Homfray, 5 id. 818; Watson v. Reid, 1 R. & My. 236. In this country, in Hedenburg v. Jones, 73 Ill. 149, four years were thought too long for the party to wait. In Roby v. Cossit, 78 Ill. 638, six years' delay was considered fatal. In Rld. Co. v. Bartlett, 10 Gray 384, three years were held to have the same effect. In Gariss v. Gariss, 16 N. J. Eq. 79, two years were considered too long for a party to wait; in Houghwout v. Murphy, 21 id. 118, two years and a half. See also Merritt v. Brown, 21 id. 401; Miller v. Henlam, 51 Penn. St. 265; Eastman v. Plumer, 46 N. H. 464; Ritson v. Dodge, 33 Mich. 463; Iglehart v. Vail, 73 Ill. 63; Brown v. Hayes, 33 Ga. 136; McDermid v. McGregor, 21 Mich. 111; Gentry v. Rodgers, 40 Ala. 449; Mix v. Balduc, 78 Ill. 215. Fowler v. Marshall. Opinion by Brewer, J.

SUNDAY SERVICE OF PROCESS ON- VOID AND ACTIONABLE EXEMPLARY DAMAGES.-(1) Service of an order of attachment upon Sunday is illegal and wrongful, and the defendant in the attachment proceedings may recover damages for such wrongful seizure. At common law, service of civil process on Sunday was void. Broom Leg. Max. 21; Swan v. Broome, 3 Burr. 1595; Taylor v. Phillips, 3 East, 155; Sayles v. Smith, 27 Am. Dec. 117; Coleman v. Henderson, Litt. (Ky.) Sel. Cas. 171; Butter v. Kelsey, 15 Johns. 177; Strong v. Elliott, 8 Cow. 27; Shaw v. Dodge, 5 N. H. 462; Stern's Appeal, 64 Penn. St. 447. The statutes may not, in terms, prohibit service on Sunday, yet they prohibit labor generally, and at least impliedly recognize the invalidity of such service. (2) If the seizure was malicious, and in pursuance of a conspiracy to detain the property within the jurisdiction of the court until Monday, and then seize it under an alias order of attachment, the jury will be justified in awarding exemplary damages. Morris v. Shew. Opinion by Brewer, J.

NEW JERSEY COURT OF CHANCERY ABSTRACT.

MAY TERM, 1883.*

AGENCY -DECLARATIONS OF AGENT WILL NOT PROVE AGENCY.-Declarations made by an agent in the course of a transaction, in which he is authorized to represent his principal, are the declarations of his principal, but to entitle them to this effect the relation of principal and agent must first be established by competent evidence. Declarations of the person alleged to be the agent are not competent to establish the fact of agency. Gifford v. Landrine. Opinion by Van Fleet, V. C.

CONTRACT-SERVICES UNDER ONE VOID BY STATUTE OF FRAUDS MAY BE RECOVERED FOR FORMER JUDGMENT-LIMITATION-PARTNERSHIP. (1) Where one

*Appearing in 10 Stewart's (37 N. J. Eq.) Reports.