At the critical point in the life of William Kemmler, the man sentenced to death by an electrical current in New York, the courts of the United States have interposed. But a few moments before the time of that execution a writ of habeas corpus by the United States circuit court was served upon the officers charged with the details of his execution. This necessarily postpones the sentence indefinitely. It seems probable that the grounds upon which the writ issued are constitutional in their nature, and doubtless it will be urged before the court that judicial death by electricity is an unusual punishment. The eighth amendment to the constitution of the United States says: "Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted." This is substantially the same as the provision in the New York constitution which the courts of that State have held does not prevent the infliction of the death penalty by electricity. Now, that the Kemmler case is carried to the United States Supreme Court we shall soon learn what the federal judiciary think on the subject.

NOTES OF RECENT DECISIONS.

CONSTITUTIONAL LAW CITIZEN HAS NO POWER TO SUE HIS OWN STATE. The right of a citizen to sue his own State was the contention in Hans v. State of Louisiana, and State of North Carolina v. Temple, 10 S. C. Rep. 504, recently decided by the Supreme Court of the United States. These suits were brought by citizens of Louisiana and North Carolina respectively to enforce the collection of State bonds. It was urged that the act of the State in refusing to pay was in derogation of the constitution as to the impairment of the obligation of contracts. It was further contended that under the clause of the constitution which declares that "the judicial power of the United States shall extend to all cases in law and equity arising under this constitution and the laws of the United States," etc., and the corresponding clause of the act conferring jurisdiction upon the circuit court, the State can claim no exemption from suit by one of its citizens if the case is really one arising under the constitution and laws of the United States. It was

conceded that where the jurisdiction depends alone upon the character of the parties, a controversy between a State and one of its own citizens is not permissible. 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 the court holding that such suits were violative of the eleventh amendment, inasmuch as that amendment only prohibits suits against a State which are brought by the citizens of another State or by citizens or subjects of a foreign State.

The court, through Mr. Justice Bradley, goes into an exhaustive discussion of the questions involved, contending that the eleventh amendment, though in terms not excluding a suit by a citizen against his State, yet that by implication from the circumstances of its adoption and the views of the supreme court before and after the decision of Chisholm v. Georgia, which was the cause of its adoption, such an anomalous result could not have been intended. Besides, the act of congress conferring jurisdiction on the circuit courts "concurrent with the courts of the several States" shows that congress in legislating to carry the constitution into effect did not intend to invest its courts with any new jurisdiction. A remark of Chief Justice Marshall, in Cohens v. Virginia, was relied upon by plaintiff here, as being authority for his position. But the court, conceding that the remark in question does favor the argument of plaintiff, hold that it was unnecessary to the decision, and in that sense extrajudicial. Justice Bradley concludes:

To avoid misapprehension, it may be proper to add that although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the State consents to be sued or comes itself into court, yet, where property or rights are enjoyed under a grant or contract made by the State, they cannot wantonly be invaded. While the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts may be judicially resisted and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment. It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully diecussed by writers on public law. It is enough for us to declare its existence. The legislative department of a State represents its polity and its will, and is called upon by the highest

demands of natural and political law to preserve justice and judgment and to hold inviolate the public obligations. Any departure from this rule, except for reasons most cogent, (of which the legislature, and not the courts, is the judge,) never fails in the end to incur the odium of the world, and to bring lasting injury upon the State itself. But to deprive the legislature of the power of judging what the honor and safety of the State may require, even at the expense of a temporary failure to discharge the public debts, would be attended with greater evils than such failure

can cause.

Justice Harlan, while with the court in holding that a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends, unless the State itself consents to be sued, says that he cannot give his assent to many things said in the opinion. The comments made upon the decision in Chisholm v. Georgia do not meet his approval. They are not necessary to the determination of the present case. Besides, he is of the opinion that the decision in that case was based upon a sound interpretation of the constitution as that instrument then was.

MANDAMUS-RESTORATION OF STUDENT EXPELLED FROM UNIVERSITY OF LEARNING.—An. opinion delivered by Chancellor DeWitt, of the Chattanooga Chancery Court, on a subject of novel interest, regarding the right of a student expelled from an incorporated college to be restored to membership by mandamus proceedings, has come to us. It seems that the chancellor and faculty of the Grant University suspended one of its students for insubordination in refusing to comply with a regulation in regard to a newspaper published by the students of the university, and of which the suspended student was manager. Among the general powers conferred by the charter of the institution was that of making by-laws, rules and regulations, not inconsistent with the laws and constitution, deemed expedient for the management of corporate affairs.

The government of the college was vested in the chancellor and faculty, and the board of trustees were empowered to direct and act in all matters of government, discipline and instruction. It was claimed by the respondent's answer that the conditions imposed upon the complainant by the faculty were reasonable, and in the direction of proper discipline and effective management of the affairs of the college, the faculty simply demanding that a portion of the news

paper issued by the students be devoted to the interest of another institution, lately annexed to the Grant University, the desire being to amalgamate the two in sentiment, as well as in name. Chancellor DeWitt, in an exhaustive opinion, refuses the writ of mandamus prayed for by the student to command his restoration. After discussing the nature and object of the writ he says:.

A mandamus lies to compel an officer clothed with full judicial or quasi-judicial power to exercise these powers, but not to correct his judgment after he has acted. This would be to substitute the judgment of this court for that of the faculty of the university, and to compel it to reverse the judgment, already given by it. An inferior tribunal clothed with judicial or quasi-judicial power may be compelled by mandamus to proceed to judgment, but not to substitute the judgment of the superior courts for its own. The members of the faculty are not merely ministerial officers, acting under the power conferred by the board of trustees of the university, without any judgment or discretion of their own; they are in a great degree clothed with judicial power. Who can now compel them to undo what they have done? In the case of Ex parte Nash. 15 Q. B. 92, the court says: "That inasmuch as a mandamus lies merely to command that to be done, which by law ought to be done, and not to order the undoing of that which ought not to have been done, it will not lie to order a railroad company to take the seal off from the register of share. holders on the suggestion that it was affixed without authority and contrary to law." This principle has been approved in a leading case by the Supreme Court of Tennessee. Our supreme court has held that the rule is, that in all matters requiring the exercise of official judgment, or resting in the sound discretion of the person to whom a duty is confided by law, mandamus will not lie, either to control the exercise of that discretion or to determine upon the decision which shall be finally given. But that character of discretion only exists where the law has given the power to decide, with the intent that the decision shall be final, unless changed by appeal or review. That character of discretion does not exist when the act to be done is purely ministerial upon a given state of facts, although the officer or tribunal, or body must judge, according to their best discretion whether the facts exist, and whether they should perform the act. For, otherwise, it is obvious no mandamus would ever lie in any case. The charter of the respondent university is the source of its power, and flowing from it quasi-judicial power requiring the exercise of official judgment, or resting in the sound discretion of the board of trustees and the faculty of the university has been conferred upon them, in a case like the one under consideration, which is not inconsistent with the laws of the land, nor our constitution. The faculty has the legal power to decide the case with the intent that the decision should be final, unless changed by appeal. It appears that no appeal has been taken from the action of the faculty, and what effect this may have on complainant's application will be noticed hereafter. It has been held, however, in England, that the writ of mandamus lies to restore à member of a university to his degree from which he has been wrongfully removed, even though there was a university court having jurisdiction of the matter, if that court had exceeded its power and removed for in

sufficient cause, and without giving the accused notice of the proceedings or an opportunity to defend. There are some American cases which seem to hold a similar doctrine. But, however reasonable this doctrine may appear upon its face, it seems hardly consistent with the weight of authority. The better doctrine seems to be, that the jurisdiction is exercised with reference to the powers of the corporation itself, and where, as in the case of a university, the corporation has its own body or faculty, visitors or board of trustees empowered with functions of a quasi-judicial nature, and whose power extends to the right of a motion from the body corporate, the ousting of a member, subject to the jurisdiction of the visitor or board of trustees, affords no sufficient ground for interfering by mandamus. It appears in this case that there was a tribunal to which the complainant could have appealed which had the right and power to reverse the faculty if it was wrong, and not having appealed, the general rule seems to be, that when suspension or removal has been regularly made under due authority vested in the corporate body, having given the accused notice of the proceedings, or an opportunity to defend, the right of this court to interfere by mandamus does not apply. Lord Kenyon, in a leading English case said: "It seems to me, that offenses against the statutes alluded to were intended to be cognizable in the vice chancellor's court; and if there be any errors in the proceedings of that court, they should be rectifled in the court of appeal in the university." C. T. R. 105. It is clear that the visitor has jurisdiction to restore after a motion; and where that is so, the application to restore must be made to him. See Per Curiam, R. V. Chester, 15 Q. B. 515; and Appleford's Case, Mod. 82. There, the rule was laid down where there appeared to be a visitor; here, there appears to be a board of trustees, and a faculty as well, clothed with all the necessary power and authority. And Lord Kenyon said, the court will not interfere with the decision of a visitor on any matter within his jurisdiction; provided he acts judicially, and the party accused is given a hearing. This doctrine applies to the case now before us. The faculty had jurisdiction of the subject-matter, and acted in a judicial, or a quasi-judicial sense, and the only question to make the analogy complete is, was Mr. Barrow given a hearing Before answering this question, I will add, that the courts will not interfere by mandamus for mere informality in such proceedings-especially if such informality is caused by the conduct or the action of the accused. Nor will the peremptory writ be awarded to restore the accused, however irregularly he may have been removed, when it is shown by the return or answer to the alternative writ that there was good ground for removal, and when it is apparent that the relator, if restored by the court, might be again immediately removed in a more formal manner. King v. Griffiths, 5 Barn. & Ald. 731; High's Ex. Legal Rs. 301; Shortt & Heard Ins. M. & P. 247. Nor will the court interfere as to the mode or manner of procedure, nor as to the kind or character of evidence relied on, or the method of obtaining it or the weight of it. The respondent has the chartered right to make all rules and regulations, not inconsistent with the general laws and the constitution deemed expedient for the management of corporate affairs. Under the common law, it can make all needful and reasonable rules and regulations for the discipline and management of its institutions. If it had no statute or charter to guide it, the common law, the accumulated wisdom, counsel, experience and observation of many ages of wise and observing men,

would furnish the rule for the distinction between the absolute and relative rights and duties of the respective parties. There are eight members of the faculty, and chancellor Spence is one of them. It is assumed that it was under his fiat that the work of suspension occurred, and much criticism is indulged in as to him. There is now a case before me, where the master of a grammar school annexed to a cathedral, had been removed by the dean and chapter, for publishing a pamphlet reflecting on the Bishop as visitor, as well as on the dean and chapter; the court refused to consider the bishop as having any interest unfitting him to act as visitor; and on the ground of the existence of such visitor refused a mandamus to restore the master of the grammar school. R. v. Rochester, 17 Q. B. 1; Shortt & Heard Inform. Mand. & Proh. 259. It is insisted that the faculty in suspending complainant, did it without due course of law, without judge or jury, without witnesses, in secret, without any of the forms common to a court of justice, and without the privilege of appearing by himself or his counsel. "Due course of law" undoubtedly means, in due course of legal proceedings, according to those rules and forms which have been established for the benefit of private rights. Mr. Justice Johnson, of the Supreme Court of the United States, in Bank v. Oakley, 4 Wheat, has stated the meaning of these terms so accurately and truly as to defy criticism. "That they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive

justice." * * Therefore, the faculty had juris

diction of the subject-matter and of his person, and acted in a quasi-judicial sense. To be sure, the ordinary forms common to the civil courts of justice were not used, nor was it necessary that it should have been done, in the court of the university in a case like this; especially, as his own action and conduct waived all the irregularities in that procedure. Therefore, he was deprived of his rights by the arbitrary exercise of the power of the university court, unrestrained by the established principles of private rights and distributive justice. The proceeding was not absolutely null and void for any reason given. When we consider that society is held together by the force of law, and is indebted to it for its very existence; that every relation in life, public and private, all our rights, political, social and individual, are under its control, surely the students and several departments will not fail to deal with each other in a frank and manly spirit. And in this way the university will be upheld. All this is absolutely required to secure the confidence and respect of the public, and to give efficiency and prosperity to the university, and its students as well. It is sometimes difficult to determine precisely how to draw the line where the civil courts will, and can interfere with the internal rules or statutes and administration of the affairs of a university of learning, without trenching upon its own jurisdiction and powers. The two, though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision, in marking the distinction between them. But, as the distinction exists, it must be marked by the judge as the case arises. To warrant the relief a clear case must be made.

Co. v. Levi, 13 S. W. Rep. 191, decided by the Supreme Court of Texas, is interesting, not only because it overrules a prior decision of the same court, but for the reason that it contains a marked exception to the general rule of the liability of carriers of goods. The court hold that under Rev. Stat. Tex. art. 277, which declares that the duties and liabilities of carriers in that State shall be the same as at common law, except where otherwise provided, a common carrier is not liable for depreciation in the value of goods resulting solely from inevitable delay in their transportation caused by a mob of rioters. Strayton, C. J., says:

From the statement it will be seen that plaintiff based his claim for damages mainly on the ground that there was an unreasonable delay in the transportation of the lemons. If a defense to a claim for damages resulting from such a cause, other than inevitable accident or the act of God, can prevail, there can be no doubt that the answer sets up such a defense and if any good defense to any part of plaintiff's claim was set in the answer, it was error to sustain a demurrer to it. Under the statutes of this State the liability of the common carrier is that imposed by the rules of the common law. "He is liable not only for losses occasioned by secret theft or embezzlement, but for those inflicted by highway robbery, by the spoliations and outrages of mobs, rioters, and insurgents. The most resistless and destructive conflagration, if occasioned by human agency, without any negligence whatever on the part of the carrier, will furnish no valid ground of exemption." Chevalier v. Straham, 2 Tex. 122. For failure to carry and deliver the carrier cannot excuse himself by reason of the fact that, through human agency, not under his control, this was prevented without fault on his part; but if the property be wholly lost or partially decayed through some inherent quality, without fault on the part of the carrier this will excuse the failure safely to carry and deliver, for the operation of the laws of nature, working destruction or loss, furnish the same excuse as to tempest, lightning, or other cause termed the "act of God." The reason on which the commonlaw rule is based are thus stated by the English judges, whose knowledge of the ground-work of that system has never been questioned: In Forward v. Pittard, Term 27, the reasons are thus stated by Lord Mansfield: "But to prevent litigation collusion, and the necessity of going into circumstances impossible to be unraveled, the law presumes against the carrier, unless he shows that it was done by the king's enemies or by such act as could not happen by the intervention of man, as storms, lightning, and tempests. If an armed force came to rob the carrier of the goods, he is liable; and a reason is given in the books, which is a bad one, viz., that he ought to have a sufficient force to repel it; but that would be impossible in some cases, as, for instance, in the riots in the year 1780. The true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil." The reasons are thus stated by Best, C. J., in Riley v. Horne, 5 Bing. 220: "When goods are delivered to a carrier, they are usually no jonger under the eye of the owner; he seldom follows or sends any servant with them to their place of des

tination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier's servants, and they, knowing that they could not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsibility of a carrier, which immediately rises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer. From his liability as an insurer the carrier is only to be relieved by two things, both so well known to all the country when they happen that no person would be so rash as to attempt to prove that they had happened when they had not, namely, the act of God and the king's enemies."

The same reasons do not apply when the thing is actually transported and delivered, although when delivered it may be greatly diminished in value by a fall in the market price or its value partially or entirely destroyed by reason of its inherent perishable nature, which has worked its partial or entire destruction while in transit. The rule is thus stated by a recent text-writer, in accordance with the view expressed by many others: "But the reasons upon which the extraordinary responsibility of the common carrier for the safety of the goods is found do not require that the same responsibility should be extended to the time occupied in their transportation. The danger of loss by robbery or embezzlement, or theft by collusion and fraud on his part, has no application when the mere time of the carriage is concerned. 'His first duty,' it is said 'is to carry the goods safely, and the second to deliver them; and it would be very hard to oblige a carrier, in case of any obstruction, to risk the safety of the goods in order to prevent delay. His duty is to deliver the goods within a reasonable time, which is a term implied by the law in the contract to deliver; as Tindal, C. J., puts it, when he says: "The duty to deliver within a reasonable time being merely a term ingrafted by legal implication upon the promise or duty to deliver generally.' In this respect, therefore, the common carrier stands upon the same ground with other bailees, and may excuse delay in delivery of the goods by accident or misfortune, although not inevitable or produced by the act of God. All that can be required of him in such an emergency is that he shall exercise due care and diligence to guard against the delay, and that, if it occur without his fault or negligence, he shall omit no reasonable efforts to secure the safety of the goods." Hutch. Carr. § 330. See, also, sections 292, 331, 335, and see Haas v. Railroad Co., 7 S. E. Rep. 629; Geismer v. Railway Co., 102 N. Y. 563; Weed v. Railway Co., 17 N. Y. 362; Blackstone v. Railroad Co., 20 N. Y. 48; Railroad Co. v. Hollowell, 65 Ind. 189; Railroad Co. v. Hazen, 84 Ill. 36; Railroad Co. v. Bennett, 6 Amer. & Eng. Ry. Cas. 402.

5. Same Subject Continued-Illustration - Concealment de die in diem,

6. Designed Fraud to Thwart Investigation. 7. The Health, State of Mind, and Environment of the Party Complaining, to be Considered.

8. Want of Knowledge as to the Fraud, or the Law, without more, will not avoid the Bar of the Statute.

9. False Statements, etc.-When they will not Prevent the Running of the Statute.

10. The Degree of Diligence to be used in Discovering the Fraud-What Sufficient to put a Party upon Inquiry.

11. Pleading and Evidence-Illustrations.

12. Replication to the Plea of the Statute.

13. Demurrer.

14. Offer of Proof.

1. The Planning of the Fraud may Precede the Consummation thereof.-The fraud and deceit, which enable the offender to do the wrong, may precede its perpetration. The length of time is not material, provided there is the relation of design and its consummation.1 This state of facts is evidently referred to by Fitzgibbon, L. J., in the second of three supposititious cases of fraud put by him in Barber v. Houston: "The discovery of the fraud might be postponed by some action of the defendant in committing it; what I may call a "clock fraud" might perhaps be so planned, that it would not "explode" and damage the plaintiff, for more than six years, being in the meantime, by design, rendered undiscoverable. In such a case I would hold the injury to be the act of the defendant, operating as a cause of action at the time it occurred; having planned his fraud so as to delay the mischief, I would hold him liable for the injury whenever his design took effect; and in that case I think the statute would not apply." The learned lord justice may be taken to mean, here, that the statute must not be made to run from the time of the planning of the fraud, but

1 Wood v. Carpenter, 101 U. S. 135. 143, 144.

2 18 L. R. (Ir.) App. Q. B. C. P. & ex. Div. 475, 480, 481. For the first case, see § 3, post, and for the third, § 5, post.

from the time of the discovery thereof by the plaintiff, which, in the case put, would be from the time when the fraud "exploded" and injured the plaintiff, the time of the consummation of the fraud. That, at least, would be the construction put upon such a case in this country.3

2. Mere Silence after the Perpetration or Consummation of the Fraud will not Prevent the Running of the Statute.-Concealment of the fraud after its perpetration or consummation by mere silence is not enough to call for the application of the exception to the statute. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry.*

3. Illustration.-The point that fraudulent concealment should not be predicated upon mere silence is aptly illustrated by the first supposititious case put by Fitzgibbon, L. J. in Barber v. Houston." "It is hard to conceive a case in which an actionable fraud would be undiscoverable for six years; but assuming this to be possible, it could happen, as it seems to me, only under one of three conditions as to the defendant: First, the fraudulent act having been completed by the defendant, might, from causes wholly independent of his volition, remain concealed for six years. If such a case occurred, I do not see why the action should not be barred, when an action for negligence under similar circumstances would be so, especially having regard to the statutory limitation of an action for deceit. It is hard to conceive any action against which it would be more difficult for a man to defend himself than one grounded upon an allegation of fraud committed more than six years before; the defendant should be presumed innocent until proved guilty; such an action would pre-eminently be within the mischief contemplated by the statutes of limitation; and in the absence of any express exception, I think it would be barred.”

3 Phelps County v. Bishop, 68 Mo. 250.

4 Wood v. Carpenter, 101 U. S. 135, 143, 144; Miller v. Powers (Ind.), 21 N. E. Rep. 445 (1889), citing Pennsylvania cases to the same effect, and Stone v. Brown, 116 Ind. 78, both following Boyd v. Boyd, 27 Ind. 429; Stanley v. Stanton, 36 Id. 445; Wynne v. Cornelison, 52 Id. 313. See also Sankey v. McElevey, 104 Pa. St. 265; Hoffman v. Parry, 23 Mo. App. 20, 27, and cases cited; Connor v. Goodman, 104 Ill. 365; Means v. Jenkins, 18 Ill. App. 41, 44; Vigus v. O'Ban non, 118 Ill. 334; 19 Ill. App. 241. See § 18, post.

5 18 L. R. (Ir.) App. Q. B., C. P. & Ex. Div. 478, 480. 6 The second case put by the lord justice is cited, { 1, ante; the third, § 5, post.