be substituted for entire suits, and, through a strange process, the United States courts would obtain jurisdiction of fragments where they had none of the suit itself.

Hence the conclusion is: First, that this case does not fall within the terms even of the act of 1866; second, the act of 1866, in the respects named, is repealed by the act of 1875; third, if neither of the foregoing propositions is correct, those peculiar provisions of the act of 1866 must be held to be unconstitutional and void. DILLON, J.:

I concur in the result of the foregoing opinion, for reasons which I proceed briefly to state.

Two only of the many defendants united in the petition to remove the cause. The removal was sought under the act of 1866 (R. Sts., sec. 639, cl. 2), the petition for the removal being filed at the September term, 1876, of the state court. The petition only sought to remove the cause so far as it related to the two defendants, Winston and Alt, and the state court only ordered the cause as to them to be transferred to this court. As to all the other defendants, it still remains in the state court.

Winston, as surviving trustee in the deed of trust, represents all the bondholders, including Alt. A deed of trust was made, purporting to be executed by the plaintiff corporation and one of the defendant corporations, viz: the Illinois, Missouri and Texas Railway Company, both Missouri corporations, upon property which the plaintiff's bill claims to belong to it, to secure bonds executed by the said Illinois, Missouri and Texas Railway Company. The bill alleges that the said deed of trust, for want of authority in the plaintiff's officers to execute it, and for other reasons, did not bind the plaintiff corporation, and is ineffectual to convey its property or create a lien upon it; and the prayer of the bill is that the deed of trust be declared void, so far as it covers the property of the plaintiff (which would seem to be the main security), and that the bondholders under the deed of trust be declared to have no lien upon the said property, and for general relief.

It seems to be too plain to admit of any doubt that, to the bill to annul the deed of trust, the two.companies which executed it as grantors are necessary parties. The Illinois, Missouri and Texas Railway Company executed the bonds, and it appears from the bill that this company, by reason of the contracts and conveyances therein set forth, had, or claimed to have, an interest in the property conveyed by the deed of trust. No effectual decree could be made, such as the bill seeks, without the presence of the Illinois, Missouri and Texas Railway Company. Now, no attempt was made to transfer the cause, so far as it concerned the company last named. The plaintiff corporation has the right to an adjudication of the case made by its bill. The bill was properly constructed, and contained the parties necessary to secure the relief sought. To the determination of the case made by the bill, the Illinois, Missouri and Texas Railway Company was a necessary party, and there can be no final or effectual determination of the case made by the bill without the presence of that company.

If the attempted removal of part of the case here were sustained, this court might decree the deed of trust invalid; and the state court, on the part of the case remaining there, might make a decree precisely the other way; and to both decrees the plaintiff would be a party.

I am of opinion that the case made by the petition for the removal is not one which is embraced within the act of 1866, as it is embodied in section 639, clause 2, of the Revised Statutes. It is not, therefore, necessary for me to give any opinion whether the second clause

1. AN OPENING TO THE JURY should state the facts which it is expected to prove, but should not set forth evidence in detail.

2. REVIEW OF DISCRETIONARY RULINGS.-Where the exercise of a court's discretion amounts to an abuse of it that is likely to affect the legal rights of a party, the appellate court will review it, although the abuse resulted from accident, inadvertence or misconception. So held, where counsel were allowed to open a case improperly.

3. LIBEL-EXTRINSIC MATTERS.-Plaintiff's counsel was allowed, under objection, to read in his opening to the jury various articles which had appeared at different times in the paper that had published the alleged libel, the purpose being to introduce them as tending to show malice. Some of these being afterward so introduced, were excluded from evidence; others were not offered at all. The judge charged that counsel had "in his opening read several articles which at the trial were finally excluded. These should also be withdrawn from your consideration." Held, that the charge was insufficient, as, in saying nothing of the articles which had been read, but not afterwards offered in evidence, the jury were left to give them such weight as they chose; and, as extrinsic matters not properly before them, they vitiated the verdict. Judgment reversed accordingly.

GRAVES, J., delivered the opinion of the court: Defendant in error recovered judgment in the Superior Court of Detroit, in an action for libel, and plaintiff in error complains of various proceedings at the trial.

Defendant in error was a lawyer, in practice in Detroit. He was a single man. In the spring of 1875 he was elected Circuit Judge of Wayne county, and in the fall thereafter was appointed to fill a vacancy caused by the resignation of Judge Patchin. In 1873 plaintiff in error began publishing the newspaper called the Evening News, and has continued the publication since that time. In 1875 the paper had a large circulation, and the news items of each issue averaged some 200. The parties were not personally acquainted; but the paper opposed the election of defendant in error and supported another gentleman, and during the canvass some intemperate articles were published. Some time in the fall after the election, one Robbins filed a bill in the superior court to obtain a divorce from his wife, and, among other charges in the bill against her, he alleged that she had been guilty of adultery with defendant in error. Almost immediately after this bill was placed on file, a reporter or gatherer of local news for the paper got access to the bill, and, with the help of the city editor, prepared an article covering this

charge in Robbins' bill, and caused it to be published in the paper. This occurred on the 7th of December. This article is the libel complained of. The action was commenced the next day. Plaintiff in error seems not to have been personally privy to the concoction or publication of the article, and was not aware of it, in fact, until his arrest in the action the next day.

It was claimed by plaintiff in error that he had no personal agency in the publication; that he bore no malice against defendant in error; that the subject of the publication, being a proceeding in a court of justice, was within the circle of privilege; and that, in fact, the article complained of was entitled to immunity on the ground of privilege. Defendant in error claimed that he could prove the existence of actuai malice. He did not deny that the subject of the article was within the scope of privilege, but insisted that the privilege was abused, and, therefore, that the article was entitled to no immunity on the score of privilege. He also insisted that the paper was, and had been, conducted with gross negligence, and was notoriously addicted to libeling. There was no pretense that the charge in Robbins' bill, which implicated defendant in error, was true.

A great many questions were raised in the progress of the trial; but some of them have not been urged, and others still can not, as the case is shaped, and, as it appears to the court, be definitely examined. There are some important matters, however, which demand full consideration.

The

The first in the order of proceeding at the trial seems naturally to call for attention first. It relates to the course the counsel for defendant in error was permitted to pursue, against repeated objections, in opening the case to the court and jury. He declared it to be his purpose, as part of his opening, to read at length before the jury a series of articles published in the newspaper during the course of several months, and commencing in the spring of 1875, and running until some time after the appearance of the publication in suit. And the first group suggested consisted of articles from the 19th of March to the 6th of December, none of which referred to defendant in error. reading of them was objected to on the ground that none of them would be relevant or competent if regularly offered as evidence under the issue. Counsel for defendant in error then stated that he proposed to read such articles as in good faith he should offer in evidence, and he would read them because he could not remember their contents. The court thereupon ruled that he might read, in his opinion, such articles as he CLAIMED to be libelous, and which had afterward been retracted. About twenty articles, not relating to defendant in error, and running through the period before indicated, were then read to the jury as part of the opening. An exception was taken to each. They were calculated, from their character, to influence the minds of the jurors against plaintiff in error. counsel for defendant in error then offered to read at length, as part of his opening, a series of articles published the spring before the publication charged as libelous, concerning the defendant in error when running for the office of circuit judge. This was objected to on the ground that the articles did not tend to show actual malice, and would not be competent if offered as evidence. Counsel for defendant in error then explained that he did not propose to then read them as evidence to show malice, but to read such as he expected to offer and prove afterward, and such as, when put in evidence, would tend to show malice toward defendant in error. The court overruled the objection and allowed counsel to read as he proposed. He then read, as part of his opening to the jury, five articles he claimed tended to show actual malice by plaintiff in

The

error against defendant in error. They bore date March 12, March 22, March 29, March 31, and April 3, 1875.

The counsel for defendant in error then proposed to read at length, as part of his opening, and not as evidence, another series of articles published after the libel. This was objected to on the ground that the articles would not be competent or admissible if offered as evidence. They all referred to the alleged libelous article and the legal proceedings growing out of it. The objection was overruled, and the counsel then read before the jury, as part of his opening statement, an article dated December 8, entitled "Another Libel Suit," etc.; two articles of December 9, one speaking of Mr. Penniman's sympathy for Judge Reilly, and the other having a heading beginning, "Where the Malice Lies;" one article dated December 10, concerning attendance of defendant in error at Justice Harbaugh's Court to make complaints; and one of Desember 11, headed, "More Contemptible Malice." It does not appear, by the record, that a letter in it from Mr. Penniman to the News was read. The opening statement having been allowed to embrace the reading in full of all these publications, and having been brought to a close, the counsel for defendant in error proceeded to offer evidence. None had yet been received, and, although the plaintiff in error had not been able to prevent the reading of the publications to the jury, he was still not able to meet them as evidence for any purpose or in any way. They were lodged in the jurors' minds as matters in the cause they were entitled to receive, but not through the channel the law has made for the conveyance of evidence, and at the stage of proceedings proper for submitting evidence. They were matters which could not fail, when so presented, to prepossess the jury unfavorably against the plaintiff in error. Confining attention now to this branch of the case, it appears from the record that, of the series of publications not relating to defendant in error, and permitted to be read at length in the opening statement on the pledge that they would be afterward offered in good faith as evidence, five were not even offered as evidence at all at any stage of the trial, and as to one other, the record is contradictory. Some ten or a dozen, or more, the record being ambiguous as to a few, were not offered, except upon the rebutting case, and were then rejected by the court, and the residue of this list, being five or six, were reserved until the plaintiff in error had rested his defense, and were then offered and admitted as rebutting evidence. Of the series published in the spring of 1875, concerning the candidacy of defendant in error as circuit judge, and which were read at length in the opening, on the avowal of counsel's belief that they tended to show actual malice by plaintiff in error against defendant in error, and would be offered in evidence for that purpose, not one was offered during the making out of the case in chief. They were held back until plaintiff in error had rested, and were then tendered as rebutting evidence. All were excluded. There were five in this group.

Of the set published after the appearance of the alleged libel, five were given in evidence by the defendant in error to show actual malice, and they were so given, but against objection, as part of his case in chief. The letter in the record, from Penniman to the News, was offered and excluded. Besides these and the article counted on, no other publications were tendered in evidence before the plaintiff in error rested his defense, except four, and these had not been read at all, or, so far as appears, even referred to in the opening statement. One of them spoke of the existence of a ring to break down the paper, and, among other things, alleged that defendant in error was aware the paper had not libeled him. Another, under date of July 27, spoke of

Wah Hap, a Chinese laundryman, as having left with clothing belonging to his customers, and this was followed by one on the next day contradicting it. The remaining article of this set was published under date of January 10, 1876. It embraced an original heading, and purported to embody an article copied from the editorial columns of the Chicago Evening Journal concerning the present action for libel, with comments upon its origin, etc.

When the judge came to charge the jury, he referred to the course which he had permitted in respect to the opening statement, and observed: "Mr. Griffin, in his opening, read several articles which, at the trial, were finally excluded. These should also be withdrawn from your consideration and laid out of view in your deliberations upon the case." No further reference was made to the subject of the opening statement, and no caution whatever was given concerning the articles which had been read at length by permission of the court against objection, but which had not even been OFFERED in evidence at all.

The question is, whether the practice, which was here allowed in the opening address, was correct? And, if not, whether the advice quoted from the charge cured the error; and, in case it did not, then whether it is competent for this court to revise the proceeding?

The trial-judge must always have a very large discretion in controlling and managing the routine proceedings at the trial, and it is not necessary to specify the matters to which such discretion extends. It applies beyond doubt to the addresses of counsel, as well as to other incidents. But it must be a reasonable, a legal discretion, and, whether it be so or not, must depend upon the nature of the proceeding on which it is exercised, the way it is exercised, and the special circumstances under which it is exercised. It can never be intended that a trial-judge has purposely gone astray in dealing with matters within the category of discretionary proceedings, and unless it turns out that he has not merely mis-stepped, but has departed widely and injuriously, an appellate court will not reexamine. It will not do it when there is no better reason than its own opinion, that the course actually taken was not as wise, or sensible, or orderly as another would have been. For example, if all the articles allowed to be read in the opening statement had been afterwards given in evidence, their reading in the opening, however contrary to settled practice, might not have offered anything proper for consideration here. Questions concerning their admissibility would fall under another head. But where it is manifest, the trial-judge has fallen into a serious mistake, one likely to have hurt a party, an error mentioned in the books as an abuse of discretion, this court is bound to take cognizance, or disregard its constitutional duty of supervision. It is a chief duty of the trial-judge to secure fair play to litigants, and, so far as practicable, to shape the order and course of proceedings in such a way that neither party will be put to a disadvantage not due to his case, or its mode of management by his counsel. The rules of the court, and what is called the course of the court, have their origin in the purpose to secure fairness in legal controversies, and the order of business and the regulated succession of steps at trials have the same object.

The rule (62) ordained by this court for the circuit courts, in regard to an opening statement, is especially meant to guard against surprise and deception, and to promote fairness; and when it is declared that "it shall be the duty of the plaintiff's counsel, before offering evidence, to support the issue on his part, to make a full and fair statement of his case and of the facts which he expects to prove," it indicates very distinctly the extent of both right and duty. It draws a

line between "evidence" and "facts," and contemplates a "fair" statement of the "facts" expected to be "proved" before putting in the testimony or "evidence" by which those "facts" are expected to be "proved." Neither the nature of the proceeding, nor that of the fairness which it is intended to promote, nor the plain meaning of the rule, gives any sanction to the claim that, in this opening statement, the plaintiff's counsel may read at length to the jury any documentary matter he may assert his intention of subsequently offering as evidence. But the position taken in this cause involves the assertion of the right to fill up the opening statement with any depositions on file, and the whole of oral statements of expected witnesses, without regard to objections to admissibility, as evidence. Surely, it can not require much thought to decide against the reasonableness and fairness of such a practice.

The text-books in this country, which deal with the subject, are distinctly agreed concerning the end and scope of the opening address. They all represent it as a proceeding prefatory to putting in evidence, and as one practically necessary to make an advance exhibit of the legal nature of the controversy and its salient peculiarities, and enable the judge, jury, and opposing counsel to apprehend the necessities of the plaintiff's case, and correctly understand the drift and bearing of each step and each offer of proof as it shall occur subsequently; and, considering that its office is to afford preliminary explanation, that it is to precede proofs, and precede controversy before the jury, and is not to embody or convey proof or prepossess the jury, they unite in substantially denying the right to make use of it to get before the jury a detail of the testimony expected to be offered, and especially any not positively entitled to be introduced, and deny the right to use it as a cover for any topics not fairly pertinent. A brief summary or outline of the substance of the evidence intended to be offered, with requisite, clear and concise explanations, is considered proper. But a relation of expected oral testimony at length, or a reading of expected documentary proof at large, or any other course fitted to mislead the triers, should not be tolerated. Of course, there may be cases and instances where a statement of the evidence itself, or a reading of a paper, may be convenient and harmless. Such, however, must be exceptional and not within the spirit of the general requirement. Green's Prac., § 443; Burrall's Pr., vol. 1, p. 234; Waite's Pr., vol. 3, p. 86; Tiff and Smith's N. Y. Pr., vol. 1, p. 553; Puterbaugh's Ill. Pl. and Pr. 2nd ed. 589; Bouvier's Inst. 333, 334. See also 1 Archbold Pr. 191; 3 Chitty's Gen. Pr. 878 et seq; 2 Broom and Hadley's Com., Am. Ed. 264, 265; Ayrault v. Chamberlain, 33 Barb. 229.

The course in England is not the same as here, as is well-known. But even there the claim made by counsel for defendant in error would not be sanctioned. In Darby v. Ouseley, 36 Eng. L. & E. 518, 525, a civil action for libel, and one which received much attention in court, Chief Baron Pollock observed, with the appar ent approbation of all the judges, that "it is the business of a judge to see that counsel shall not state what he can not prove, and for this purpose he has always a right to ask counsel if he means to prove what he is stating."

In the case before us, the ground taken is, that counsel for plaintiff may first put before the jury whatever he claims to be admissible as testimony, and leave the question of its admissibility to be decided afterward, and, from time to time during the progress of the trial, if decided at all. And it so happens that a part of the matter which was introduced on this theory was left without having its admissibility as evidence passed upon in any way or at any time. The courts have usu

ally been very firm in confining counsel within proper bounds, and in guarding jurors against unfair and irregular acts and endeavors; and parties have been deprived of their verdicts upon evidence merely indicating the operation of influences about the outskirts of the trial. It has been many times ruled that counsel, in arguing, may not seek to influence the jurors by reference to matters in the nature of evidence not in proof before them, and that the trial-judge should promptly repress the attempt as something reprehensible. Bulloch v. Smith, 15 Ga. 395; Berry v. State, 10 Ga. 511; Mitchum v. State, 11 Ga. 615; Dickerson v. Burke, 25 Ga. 225; Read v. State, 2 Ind. 438; Tucker v. Henniker, 41 N. H. 317. Again, it has been decided to be error to allow counsel, as part of his argument, to read and comment on minutes of the evidence taken on a former trial of the same action, and that the error was not cured by an instruction to the jury not to consider anything so read. Martin v. Orndorff, 22 Iowa, 504; State v. Whit, 5 Jones (N. C.) 224. See also the remarks of the court upon the statement of foreign matter in argument in the case of Fry v. Bennett, 3 Bos. 200. In Willis v. Forrest, 2 Duer, 310, it was ruled that, where the pleadings contained irrelevant matter, it was improper to allow counsel to read them to the jury. In Mitchell v. Borden, 8 Wend. 570, an objection being sustained to a notice of justification in slander, and thereby causing the exclusion of evidence, it was ruled that the objection to the evidence was not a proper subject of comment to the jury. In Hix v. Drury, 5 Pick. 296, the court said, if a paper, capable of influencing the jury on the side of the prevailing party, gets to them by accident, and is read by them, the verdict will be set aside, even though the jury think they were not influenced by it, as it is impossible for them to say what effect it might have had; and in Whitney v. Whitman, 5 Mass. 405, where a material paper, not read to the jury, was delivered to them by mistake, and not discovered until after delivery of the verdict, the court finding that the paper furnished material evidence for the prevailing party, refused to examine the jurors, and held that the matter must be governed by the tendency of the paper, and that the verdict must be set aside. In the case of the State v. Hascall, 6 N. H. 352, the defendant was convicted of perjury, whereupon it was shown that papers calculated to make an unfavorable impression on the jury were exhibited by the prosecution at several public places where jurors boarded, and were read in the hearing of jurors during term and before the trial, and the court decided that for this cause the verdict should be set aside. Spenceley v. De Willott, 7 East, 108, which was an action for usury, a new trial was granted because the plaintiff had published a statement of the case, which was distributed about the court and hall before and at the time of trial; and, in Coster v. Merest, 3 Brod. and Bing. 272, a new trial was allowed on an affidavit stating that hand-bills, reflecting on plaintiff's character, had been distributed in court at the time of the trial, and had been seen by the jury; and the court refused to hear affidavits, made by all the jurors, stating that no such placard had been shown to them.

In

There is no occasion for dwelling on this part of the case, after what has been said. The practice pursued was wrong, and the error was not cured or materially alleviated by the charge. The jury were not even told to disregard such of the articles as were read in the statement of the case, and not afterwards offered in evidence, and the special direction to refuse attention to those which had been offered and rejected, was calculated to imply in the jurors' minds that they were entitled to regard all others.

The omission to tell the jury to disregard the articles not offered was no doubt an inadvertence of the court.

The effect, however, was the same as if it had been designed. But if the charge had been to disregard all unadmitted articles, it would not have cured the error, because it is quite impossible to conclude that the jurors had not been influenced too far by the erroneous rulings and proceedings, to be brought into the same impartial attitude by the court's admonition, which they would have held, if the counsel for defendant in error had been properly confined in his opening statement. The course of fair and settled practice was violated to the prejudice of plaintiff in error, and it is not a satisfactory answer to say that the court went as far as practicable afterward to cure the mischief, so long as an inference remains that the remedy applied by the court was not adequate; and there is no doubt of the right of this court to revise in such a case as this. If the trial-court may pursue any course it pleases in relation to the opening statement, if it may act independently of all control, then the idea of a rule to be prescribed by this court, under the constitution and legislative enactments, for its guidance and government, is preposterous and absurd. But the point is too plain for argument. As already suggested, this court will not revise such matters, unless there is plain evidence of action, amounting to what is called an abuse of discretion, and calculated to injuriously affect the legal rights of a party; and when such is the case, whether the result of accident or inadvertence or misconception, it will take cognizance. The error in this case was not cured, and is one subject to review, and is sufficient to require a reversal.

After the opening, the litigation proceeded upon the idea, that the fact that Robbins' bill had been placed by him on the files of the superior court, gave the right to the newspaper to publish his allegation in the bill, implicating defendant in error, as matter of privilege. Whether in point of law the particular occasion was privileged or not, is not distinctly raised, though, if it was not privileged, a number of serious matters cease to be important, and ought not to encumber the case. Upon the hearing, it was the opinion of counsel that the question was not raised, and although counsel for defendant in error touched upon it, it was not discussed. The court at present entertain a strong impression that the actual occasion was not such as to entitle plaintiff in errror to claim it as one which could afford immunity, but, in view of the circumstances, do not feel at liberty to come to a settled determination. Before doing so, a fair presentment and discussion of the question ought to be had. Still, in contemplation of this impression, and the actual posture of the case, and the nature and shape of the questions concerning this claim of privilege, the court is not inclined to examine these questions now.

It is objected, that the court erred in admitting certain publications relating to Grelling, Warner and Wah Hap. It was made a question whether the paper was conducted with sufficient care to save plaintiff in error from punitory damages in case the jury should find the article libelous, and no actual malice. If such mode of proof was proper, these articles tended to show the want of such care. The plaintiff in error claims that the charge that the paper was conducted recklessly was only provable by evidence of a general character, or by the circumstances which attended the publication in suit. This position is not assented to. The language of the court, in Detroit Daily Post Company v. McArthur, 16 Mich. 447, plainly imports the right to show the "recurrence of similar" libels, and points to the admissibility of specific acts, to establish "the want of solicitude for the proper conduct of the paper." It implies distinctly that particular instances may be adduced to make out the principal fact. See further, Milwaukee and St. Paul Railway Company v.

Arms, 1 Otto, 489, 3 Cent. L. I. 220; Com. v. Jeffries, 7 Allen, 548; Com. v. Morgan, 107 Mass. 199; Sheldon v. Hudson River R. R. Co., 4 Ker. 218; Field v. N. Y. Central R. R. Co., 32 N. Y. 339; Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356; Penn. R. R. Co. v. Stranahan, 79 Penn. St. (not yet out); Clarke v. Periam, 2 Atk. 333; Barrett v. Long, 3 H. L. 395.

There is no dispute but that the circumstances connected with the preparation and publication of the particular article and evidence of the actual management may be shown, and we have no occasion now to see whether other modes of proof might not be allowed.

The court admitted several articles against objection, and on the claim that they tended to show actual malice on the part of plaintiff in error; but it would seem that, on deliberate consideration, the judge finally concluded the admission of this evidence was improper, and we now see no reason to question the correctness of his final opinion. When he came to charge, he explained his change of opinion to the jury, and undertook to expunge the evidence. If it was practicable to cure the error in this way, which may be doubted, the charge was objectionable for want of distinctness. It did not convey to the jury what items of proof were to be rejected. As we understand the record, the case was submitted upon the theory that no actual malice had been shown, and that the right to give punitory damages must depend on whether the paper was managed with due care to avoid the publication of libelous matter.

Complaint is made of the admission of the News' republication of the article from the Chicago Journal, or, rather, of the admission of the part of it which was offered. It appeared, as before stated, in the issue of the News of January 10, 1876, being more than a month after the publication of the article in suit, and more than a month, also, after the suit was instituted. The portion offered and received was, according to the record, so much of it as related to the defendant in error, and it was tendered and admitted as bearing upon the question of care and prudence in editing said paper. Without considering any other ground of objection, it is enough to say, that being a publication made after the alleged libel, it was too remote in point of time to afford any fair legal inference of the management of the paper before and at the time of the appearance of the libel. And the mode of management afterward was not one of the substantial facts in the case.

The instruction based on the evidence, relating to the management of the paper, was not as guarded as it should have been. It went beyond the request of the counsel for defendants in error, and was calculated to mislead. The correct view is well indicated in the case of Detroit Post Company v. McArthur, and, no doubt, the matter will be properly explained on another trial. A point is made that plaintiff in error was entitled to have the jury say upon what count or counts they found in case of finding for defendant in error, and in view of the structure of the declaration of the facts, it appears to us there was ground for this claim.

The judgment must be reversed, with costs, and a new trial ordered.

DURING the past year there were published in England 101 new works on law and jurisprudence, and 63 new edi tions of legal works.

THE supreme court of South Carolina has rendered a decision in the quo warranto proceedings against the Hayes electors, dismissing the case, on the ground that the proceedings were illegally presented on the part of the state, instead of the United States. This technical flaw disposes of the electoral case of this state.

In an action by the bona fide holder of a negotiable municipal bond purchased before maturity without notice of its invalidity other than that imparted by the legislative journals, it can not be shown by such journals that a law, printed and promulgated as such by the state authorities, and under which the bond on its face purports to have been issued, is null and void, because not enacted in conformity with the requirements of the state constitution, although such evidence would have been admissible against one not a bona fide holder. Bradley, Miller, Davis and Field, JJ., dissenting.

IN ERROR to the Circuit Court of the United States for the Northern District of Illinois.

Mr. Chief Justice WAITE delivered the opinion of the Court:

This was an action brought by Perkins, the plaintiff below, to recover the amount due upon two negotiable bonds of the town of South Ottawa, in the usual form, for one thousand dollars each, made payable to the Ottawa, Oswego and Fox River Railroad Company, or bearer, in three years from July 1, 1869, with coupons for the semi-annual payment of interest attached. They each contained recitals as follows:

"This bond is one of a series of 20 bonds, bearing even date herewith, each for the sum of $1,000, and is issued in pursuance of an election held in said town on the 8th day of October, 1866, under and by virtue of a certain act of the legislature of the State of Illinois, approved February 18, 1857, entitled 'an act authorizing certain cities, counties, incorporated towns and townships to subscribe to the stock of certain railroads;' at which election a majority of the legal voters participating in the same voted for subscriptions' to the capital stock of said railroad in the sum of twenty thousand dollars, and to issue the bonds of said town therefor; and the said election was by the proper authorities duly declared carried 'for subscription,' previous application having been made to the town clerk of the town, and said clerk having called said election in accordance therewith, and having given due notice of the time and place of holding the same, as required by law and the act aforesaid."

The constitution of Illinois, adopted in 1848, contains the following provisions:

"Art. III., sec. 1. The legislative authority of the state shall be vested in a general assembly, which shall consist of a senate and house of representatives, both to be elected by the people."

"Sec. 3. Each house shall keep a journal of its proceedings, and publish them.

"Sec. 21. *

On the final passage of all bills, the vote shall be by ayes and noes, and shall be entered on the journal; and no bill shall become a law without the concurrence of a majority of all the memberselect in each house."

"Sec. 23. * * Every bill having passed both houses shall be signed by the speakers of the respective houses.*

"Sec. 26. An accurate statement of the receipts and expenditures of public money shall be attached to and published with the laws at the rising of each session."

"Sec. 39. The general assembly shall provide by law that * * the copying, printing, binding, and dis