not make it. It belongs only to the legislative department to create crimes and enjoin punishments. Accordingly courts, in the construction of statutable offenses, have always regarded it as their plain duty cautiously to keep clearly within the expressed will of the legislature, as otherwise they shall hold an act or an omission to be a crime, and punish it, when, in fact, the legislature had never so intended. United States v. Clayton, 2 Dill. 219.

Statutes creating crimes will not be extended by judicial interpretation to cases not plainly and unmistakably within their terms. If there is a fair doubt whether the act charged in the indictment is embraced in the criminal prohibition, that doubt is to be resolved in favor of the accused. United States v. Whittier, 7 Cent. L. J. 51; U. S. v. Morris, 14 Pet. 694; U. S. v. Wiltberger, 5 Wheat. 76; U. S. v. Sheldon, 2 Wheat. 119; U. S. v. Clayton, supra.

Therefore, in the face of these principles of the law so well sustained by authorities, if it does not clearly appear to the judicial mind that these lands granted to the Cherokee Indians are "lands of the United States" in the sense intended by its makers to be attached to the statute, then the act of the defendant is not one covered by the terms of the law, and he is not subject to its penalty. It is to be regretted that it cannot be held to be an offense, as the complaints of depredations upon the timber of the Indian lands are constantly being made to officers of this court. There are a class of men on the borders of the Indian country who revel in the

idea that they have an inherent, natural right to steal from the Indians. This right is not to be questioned. They think it a tyrannical use of authority if they are interfered with.

There should be a law enacted, the penalty of which would teach persons that Indians have rights which should be respected as well as the rights of citizens. This is with the law-making power and not with this court. That it is the right of Congress to pass a law protecting the timber on the lands of these people is clear; the duty of Congress to do so in the face of the pledges of the government of the United States, made by her treaties and her laws, to protect these Indians from unlawful intrusions from without, and from violations of their rights by any and all persons, is clear.

If the law-making power will give us a law we will lay its mailed hand upon its violators; gently and tenderly, it is true. yet in such a way that the timber in that Indian Territory will be protected from the rapacity of those who are now stealing it. It remains with us to execute the law, not to make it. And it is with regret that we must hold in this case that the offense, for the reasons already given, is not within the terms of section 5388.

The demurrer is therefore sustained.

THE statement that the conviction of Charles Hartwell, a conductor of the Old Colony Railroad, of manslaughter, for neglect of duty resulting in a fatal accident, is the first instance in this country in which a railway conductor has been so convicted, appears to be incorrect. A similar conviction took place in New Jersey in 1866. See State v. O'Brien, 32 N. J. 169.

FORECLOSURE OF MORTGAGE-JURISDICTION OF COURT OF EQUITY TO APPOINT RECEIVER TO COLLECT RENTS.

HAAS v. CHICAGO BUILDING SOCIETY.

Supreme Court of Illinois.

[Filed at Ottawa, January 25, 1879.]

1. A COURT OF CHANCERY may, in a suit to foreclose a mortgage, appoint a receiver to collect the rents and profits arising from the property mortgaged, even when the mortgage does not, by express terms, give a lien upon the income derived from such prop erty, and although there may have been a decree and sale of the property under the mortgage.

2. BUT THIS CAN ONLY BE DONE where it is made to appear that the mortgaged premises are insufficient security for the debt, and the person liable personally therefor is insolvent, and where there are circumstances of fraud or bad faith on the part of the mortgagor, which would render a denial of the relief sought inequitable.

3. WHETHER THESE FIRST TWO conditions would be sufficient, without circumstances of fraud or bad faith,-quære?

BAKER, J., delivered the opinion of the court: The points presented by this record are as to the jurisdiction of a court of chancery to appoint a receiver to collect rents and profits in a suit to fore

close a mortgage and as to the authority to make such appointment after decree and the sale of the mortgaged property, and if such discretionary power does exist, whether it was properly exercised in the case at bar.

We find the decided weight of American authority to be in favor of the proposition that the court may, even when the mortgage does not by express words give a lien upon the income derived from such property, appoint a receiver to take charge of it and collect the rents, issues and profits arising therefrom. Such action will not be taken, however, unless it be made to appear that the mortgaged premises are an insufficient security for the debt, and the person liable personally for the debt is insolvent, or at least of very questionable responsibility. A combination of these two things seems to be required in all the cases we have examined, and in one or more of the States it is held necessary that still other elements should be conjoined to these before such procedure is justified.

In Myers v. Estell, 48 Miss. 372, it was held in the absence of any stipulation in the contract, that the mortgagee shall have the rents and profits that he has no claim thereto, merely on the ground that the debt is due and the title becomes absolute, but is only entitled to a receiver for the collection and appropriation of the rents where the property is insufficient to pay the debt, and the mortgagor is insolvent or unable to pay any deficiency that might remain after sale of the property mortgaged. In Hyman v. Kelly, 1 Nev. 179, the court, after stating that courts of equity have usually appointed a receiver when the property was insufficient to

pay the mortgage debt and the mortgagor was insolvent, review the facts of the case before them and find therein other equitable circumstances to exist to justify the granting of the relief sought, and they reverse the action of the lower court and say, "We think there are many cases where such an appointment is necessary to prevent fraud and injustice and loss of security.”

In Sea Insurance Co. v. Stebbins, 8 Paige, Chy. 565 it was held that to justify such appointment in a foreclosure suit there must be shown, first a deficiency in the value of the mortgaged [property and secondly that the mortgagor or other person personally liable for the debt is irresponsible or is unable to pay the expected deficiency. The same rule is announced in Astor v. Turner, 11 Paige Chy. 436; in Warner v. Governeur's Executor's, 1 Barb. 38 and in other New York cases. In Cheever v. R. & B. R. R. Co. 39 Vt. 654, the doctrine is recognized that the court will appoint a receiver in foreclosure proceedings for the purpose of preserving the property and its rents and profits from waste and diversion.

In Michigan, in the case of Brown v. Chase, Walker's Ch. 43, it is said: "A receiver of the rents and profits of mortgaged premises is sometimes appointed on the petition of the mortgagee after he has filed his bill to foreclose the mortgage. The court must be satisfied before making the appointment, that the morgaged premises are insufficient to pay the mortgage debt, and that the mortgagor or other party to the suit who is personally liable for its payment is insolvent or out of the jurisdiction of the court, so that an execution against him for the balance that should remain due after a sale of the mortgaged premises, would be unavailing."

In Finch v. Houghton 19 Wis. 150 where it appeared the whole mortgage debt was past due and a considerable amount of interest remained unpaid and the owner of the equity of redemption in possession neglected to pay the taxes, and where the evidence tended to show he had endeavored to obtain tax deeds upon the mortgaged property to defeat the mortgage, and also the mortgaged premises were not an adequate security and the parties personally liable were not able to pay the deficiency which might arise upon a sale, it was held that the court below did not err (in appointing a receiver of the rents and profits. The doctrine that a receiver may be appointed under circumstances sufficiently strong and clear in a suit to foreclose a mortgage is also recognized by the Supreme Court of Iowa in Callahan v. Shaw, 19 Iowa 183. In Henshaw v. Wells, 9 Hump. 568, the Supreme Court of Tennesee affirmed a decree appointing a receiver in foreclosure proceedings. In New Jersey the courts will not appoint a receiver simply because the mortgagor is insolvent and the security insufficient, but they will when coupled with these facts are circumstances of fraud or bad faith in appropriating the rents for other purposes than keeping down the interest or when the security has materially depreciated in value. Cortleyeu v. Hathaway, 3 Stock. 41.

It is held in California that in a foreclosure suit

the plaintiff has no right to have a receiver of rents and profits of the mortgaged property appointed, but that decision is based on a peculiar statutory provision of that State which expressly confines the remedy of the mortgagee to a foreclosure and sale. Guy v. Ide, 6 Cal. 99.

We take it then to be undoubted law that the court of chancery may when the security is inadequate and the mortgagor unable to pay the deficiency and a foreclosure proceeding is pending, appoint a receiver if there are circumstances of fraud or bad faith on the part of the mortgagor or other facts involved which would render a denial of the relief sought inequitable and unjust.

It is not necessary for the decision of the case before us we should express an opinion as to whether such appointment should be made where circumstances and facts such as we have referred to do not exist in conjunction with the two elements first spoken of and it will be time enough to dispose of that question when it arises.

It is objected in this case that the appointment was made after decree of foreclosure and after sale and before the time allowed by law for the redemption of the premises had expired. It is urged by appellants that appellee had exhausted his security by a sale of the mortgaged premises, and the statute gave them twelve months for redemption, and it is claimed that implies the receipt of the rents, issues and profits during that time to enable them to pay off the incumbrances.

In Bowman v. Bell, 14 Simons, 392, the English High Court of Chancery appointed a receiver on motion after a decree and though not prayed for by the bill. It is stated by High, in his treatise on the law of Receivers, section 110: "While it rarely happens that courts are called upon to appoint a receiver after a final decree in the cause, the power of appointment after decree is well settled and is exercised in cases of great emergency or where the relief is indispensable for the protection of the parties in interest." And Wright v. Vernon, 3 Drew, 112, and other English authorities are cited as supporting the text. In Thomas v. Davies, 11 Beavan, 29, a case calling very strongly for such relief, a receeiver of the rents of the mortgaged premises was allowed after a decree of foreclosure.

In Hyman v. Kelley, supra, there had been a judgment of foreclosure and the premises had been sold under it and bid in at the sheriff's sale by the plaintiffs for less than the amount of their debt, and the six months allowed by statute.had not expired and the plaintiffs were not invested with title under the statute and yet it was held, under the circumstances of that case, that the motion for a receiver should have prevailed, and the judgment of the court below was reversed.

would become due and payable. The mortgagor being insolvent, the vice-chancellor directed a receiver of those rents to be appointed, and that they should be applied to the payment of the deficiency remaining due upon the decree. On appeal, Chancellor Walworth said: "He was clearly right." If the purchaser had been entitled to the immediate possession of the premises, the rents, which fell due the next day, would have belonged to him. The legal presumption in that case would have been that he had purchased in reference to such right, and had given more for the premises than he otherwise would have done on account of such rents and profits. Here, however, the purchaser was not entitled to the rents which would become due before his right to the possession of the premises was to commence, even if the order to confirm the master's report should be entered immediately, and if there had been no deficiency, those rents would have belonged to the owner of the equity of redemption. But the mortgagee had an equitable right to such rents to pay the deficiency, which right could only be enforced by an application to the court to appoint a receiver. The final decree stands in full force. And the order to apply these rents towards the deficiency due from an insolvent mortgagor is merely a collateral remedy against this fund, which, in equity, was secondarily liable for the payment of such deficiency. Substan

tially to the same effect is Howell v. Ripley, 10 Paige, 43.

When a court of chancery obtains jurisdiction of the subject matter of a suit, it will retain jurisdiction until complete justice has been done between the parties; and such jurisdiction is frequently exercised in case of a foreclosure of mortgage after final decree of sale by putting the purchaser in possession, by rendering a decree for any residue unpaid after sale of the property, and awarding execution therefor and in other ways. Of course, in the matter of an application such as we are now considering, no order of the kind here made should be entered after final decree, without due notice, if notice is practicable to the opposite party in interest. But no question of notice properly here arises, as the appellants were fully heard upon the matter and introduced numerous affidavits, which were considered by the court before finally determining as to the appointment of a receiver.

The necessity for the appropriation of the rents to the payment of the mortgage debt, may frequently not appear until after both decree and sale. The amount due is often matter of dispute, and can only be determined by the decree; and what the property will sell for can only be ascertained with certainty from the result of the judicial sale. If an appropriation of the rents on the indebtedness is justified by the surrounding facts before sale, we see no good reason why the same, and more weighty facts existing after sale, may not warrant a similar procedure. The security plainly is not exhausted by the sale, for there is a fund included in it which is secondarily liable. It is true, the mortgagee has elected to foreclose and sell, but then he has proved that remedy to the end, and without

getting satisfaction of his debt, and he may avail himself of any just and equitable means of collecting the residue. Not that he may have such extraordinary remedy in all cases of a deficit in the proceeds, but only where it ie indispensably necessary for his protection and just and equitable.

We hold, then, both upon the principles of equity that lie at the foundation of the chancery court and upon authority, that a receiver may sometimes be allowed after decree and sale, and that a mortgagee does not in all cases exhaust his security by a foreclosure and sale. It is, however, a power that the chancellor would be slow to exercise, except in an extreme case, and to prevent palpable wrong and injustice.

The points made that the court will not appoint a receiver on the application of a party who has the power of protecting the property without it, and that appellee has his remedy by asserting his title in a court of law, do not strike us with much force as applied to the matter now in hand. It is true it appears from affidavits that appellee claims ownership of the premises under deeds based upon a mechanic's lien proceeding, and upon a sale made under a prior incumbrance. But these claims are contested, and both appellants swear in their affidavits that the title to said real estate is in the appellant, Elizabeth Haas. The titles of appellee are not displayed in this record, and we are unable to determine therefrom that it has such title as it could effectually assert in the law court. Besides, such alleged titles grew out of subject-matters wholly disconnected with this suit, and are independent of the right here involved, and equity having once obtained jurisdiction will retain the same, notwithstanding appellee may have since acquired some legal right by which he could get possession in the law court.

Counsel for appellants make no points in their brief upon the questions of fact involved. We have examined the affidavits submitted on the motion and contained in the record. The decided weight of the testimony shows the mortgaged premises are a grossly inadequate security for the mortgage debt. The decree of the court was for $27,763 95, and appellee purchased the property at the sale for $19,000, leaving a balance of $9,079 95 unpaid. The amount bid seems to have been about the value of the property. Then there were three prior incumbrances amounting to $5,000, and a mechanics' lien for $335 65-all this without calculating any interest on the decree, which was entered in January, 1875, and without taking into consideration several years of accumulated interest on the other incumbrances. Appellants allowed the premises to be sold on some of these claims, and appellee was forced to buy them in to protect its interests. Appellants have failed to pay the taxes for years, and appellee has been compelled to pay $580 80 taxes thereon, and there was at the time the motion was submitted $613 56 unpaid taxes due. Appellee also paid $487 85 for insurance on the buildings, but the conduct of Elizabeth Haas was such that the companies refused to reinsure, and one of them cancelled its policy. Appellants prosecuted an unsuccessful appeal from

the decree of foreclosure to this court, and have from the date of the decree been in possession of the premises by their tenants, and have collected the rents and have used them as a means of support for the family, allowing interest on the several liens to accumulate, and leaving the taxes wholly unpaid, and allowing some of the incumbrances to culminate into what may be a valid legal title. It is evident that they have no ability to, or intention of, redeeming the property, and are seeking to make all out of it they can, and render it as little available to appellee as possible. The statements in their affidavit seeking to question the amount due appellee, and for which decree was rendered, avail nothing, as that matter is res adjudicata.

Under the peculiar circumstances of the case, we cannot say the order of the circuit court appointing a receiver was erroneously made, and the judgment of that court must be affirmed.

KANSAS STOCK LAW -RAILROADS NOT REQUIRED TO FENCE AGAINST HOGS.

-

ATCHISON, ETC., R. CO. v. YATES.

Supreme Court of Kansas.

Filed April 24, 1879]

IN all the townships of this State where the statutes are in force, preventing swine from running at large: Held, that railroad companies are not required to fence against hogs. This is upon the ground that, as lawful fences will not prevent such animals from being on the road-bed, and will not protect the railroad track from them, no obligation exists to erect them.

In error from Douglas County.

Ross Burns and J. G. Waters, for plaintiff in error; William A. H. Harris, for defendant in error.

This was an action under the railroad stock law of 1874, to recover for the killing of two hogs. The court made the following findings of fact:

"1. The defendant (now plaintiff in error), was during the whole of the months of October and November, 1877, operating a line of railroad through Wakarusa township, in Douglas county, Kansas. 2. That the line of defendant's railroad, and its right of way, runs through the field of plaintiff in said town ship, which field is surrounded by a legal fence, and which is hog proof. 3. That the defendant is a railroad corporation, duly incorporated and organized under the laws of the State of Kansas. 4. That while plaintiff's (defendant in error) hogs were kept in the enclosed field during the months aforesaid, two hogs belonging to the plaintiff, of the value of thirty dollars, were killed by the engines and trains of defendant, and in the operation of its line of railroad. 5. That said hogs were killed within the limits of said field. 6. That the line of defendant's railroad was not fenced at any place within said Wakarusa township. 7. That no demand was ever made upon any station or ticket agent of the defendant for the value of said hogs.

8. That a demand was in proper time made upon the agent of the defendant, whose duty it was to settle stock claims, and to whom all claims of thiskind were referred for adjustment and settlement, and who had full power and authority to compromise, settle and pay such claims. 9. That on such demand being made the defendant, by its said stock agent, refused to pay for the same, and still refuses so to do. 10. That fifteen dollars is a reasonable attorney's fee for the prosecution of this suit. 11. That said hogs were not killed by any negligence of defendant, unless the failure to fence its track is negligence."

Judgment was rendered by the court in favor of the defendant in error, and the railroad company brings the case here on error.

HORTON, C. J., delivered the opinion of the court: The learned judge in the court below mistook the law in reference to this case, in rendering judgment on his findings of fact against the railroad company. The stock law of 1874, exempting railroad companies from its conditions, when their roads are enclosed with a good and lawful fence, is to be construed in connection with the fence law in force. The rule in pari materia applies. In other words, railroad companies are not required to build different fences from other parties. The fence spoken of in the stock law is no different or more expensive a structure than that mentioned in the general law defining a legal and sufficient fence. Gen. Stat., ch. 40, 486-487. In townships where hogs are permitted to run at large, the bottom rail, board or plank of which the fence is composed shall not be more than six inches from the ground; in other townships it shall not be more than two feet. In the law there is no prohibition against building fences of rails or lumber, and, when constructed of this material, as required by the law, they are lawful fences. There is no finding to show that in Wakarusa township swine were allowed to run at large. The general law of the State is that they shall not run at large. Assuming the general law of the State was in force, then the railroad company, in any event, was only bound to build a fence through the enclosure of Yates with the bottom rail, board or plank not more than two feet from the ground. Sec. 1, ch. 88, Laws 1873. Such a fence would not have prevented the hogs killed from being on the road; indeed, the fence thus constructed, and being within all the requirements of the law, a good and lawful fence would have in no respect been of any benefit to the proprietor of the land, so far as keeping his hogs from the track. Then, if such a fence was useless and unnecessary, so far as this case is concerned, can it be logically said that the company ought to have built its fence? Or that from its failure to construct a fence which would not keep the animals killed from going upon the road, it was liable under the law of 1874? We answer, no. The building of a dozen, or any other number of fences of the character required by law in Wakarusa township, would have afforded no protection to the defendant in error, and he has no serious complaint of their absence. As a lawful fence could not have prevented the injury, and would not have protected the railroad track from

the swine, no obligation existed to erect it. The failure to erect the fence may be laid aside as having no bearing in the case.

We conclude that the company was rightfully in the field with its road and cars; that it was not bound to do a useless or unnecessary act; that, therefore, as to hogs, it was not bound to maintain a fence. As the findings show they were not killed by any negligence, unless the failure to fence the track was negligence, the company was not liable. The judgment will be reversed and the case remanded, with the direction that judgment be entered upon the findings of fact for the plaintiff in All the justices concurring.

error.

ABORTION.

STATE v. FITZGERALD.

Supreme Court of Iowa, October Term, 1878.

1. THE EMPLOYMENT OF ASSOCIATE COUNSEL in criminal prosecutions rests in the discretion of the court and district attorney.

2. ABORTION-WHAT CONSTITUTES. -Under the Iowa code, as to administering medicine with intent to produce a miscarriage, the crime is complete if the attempt be made at any time during pregnancy. It is not necessary that the woman should be quick with child.

3. SAME-INTENT.-A person administering a substance with intent to produce a miscarriage may be convicted, although the substance used is proved to be harmless. It is the intent and not the substance that constitutes the crime.

4. HUSBAND AND WIFE-COERCION.-Proof that the prisoner was a married woman, and that the crimina act was done in the presence of her husband, raises a presumption of coercion, which may be rebutted by proof that the act was done while she was not so immediately near him as to be under his control.

APPEAL from Maheska District Court. The defendant, Ruth Fitzgerald, was indicted for willfully administering to a pregnant woman a drug and substance, and using an instrument, and other means, with intent to produce the miscarriage of such pregnant woman. Upon a trial there was a verdict of guilty, and the defendant was sentenced to the penitentiary for nine months. Defendant appeals.

John F. Lacy for appellant; J. F. McJunkin Attorney-General for the State.

ROTHROCK, C. J., delivered the opinion of the court:

J. A. L. Crookham appeared at the instance of private parties to assist the district attorney in thetrial of the cause. There was no order of the court appointing said Crookham as associate counsel. The defendant objected to his appearance, and objected to his making any argument in the cause, and to his taking any part therein. The objection was overruled, and the defendant insists that this ruling was erroneous.

We think the practice of allowing district attorneys to have the assistance of associate counsel in the trial of criminal cases has been too long acquiesced in in this State to be now called in question. Crookham did not appear as an assistant without the consent of the district attorney and the court. If he did, the objection to his taking part in the trial would have been sustained. We can see no objection to leaving the matter of allowing associate counsel in the discretion of the court and district attorney.

Section 3,864 of the code provides: "If any person with intent to produce a miscarriage of any pregnant woman, willfully administer any drug or substance whatever, or with such intent use any instrument or other means whatever, unless such miscarriage shall be necessary to save life, he shall be imprisoned, etc." The defendant asked the court to instruct the jury that the crime could not be committed upon a woman who was not quick with child. The instruction was, we think, correctly refused. The statute makes no such qualification. The crime consists in attempting to produce the miscarriage of any pregnant woman. The crime is complete, if the attempt be made at any time during pregnancy.

The evidence tended to show that the substance used in the attempt to produce miscarriage was tobacco, and that the instrument used was a syringe. The medical witnesses testified that tobacco was not such a substance as would produce the result intended. The court refused to instruct the jury that the defendant could not be convicted unless the substance administered was such as would produce a miscarriage.

In this we think there was no error. The statute provides that the administering of "any substance" with the criminal intent, shall constitute the crime. A party who, with the necessary criminal intent, uses any substance to produce a miscarriage, surely cannot be held innocent because he mistakenly administered a drug or substance which did not produce the result intended. It is the intent, and not the substance used, that determines the criminality. The name of the drug or substance used need not be given in the indictment. State v. Vawter, 7 Blackf. 592; Shotwell v. State, 37 Mo. 359; Com v. Morrison, 16 Gray 224.

The defendant is a married woman. There was evidence upon the trial tending to show that she went to the house where the complaining witness resided and induced her to go part of the way to defendant's house, stating that the defendant's husband wanted to see her, and that "if there was anything wrong he could bring her round." The parties met defendant's husband, who told the witness to come to him, which she did. and the defendant then went away. It was upon this occasion that the husband of defendant made the alleged attempt to produce the miscarriage. This occurred about May 1st, 1876. The State interrogated the witness as to conversation with defendant in October previous. She testified that defendant told the witness that she knew her husband had had criminal intercourse with the witness, and that she did not care. She also testified that defendant at an