The case of Vail's executors v. Runyon, 12 Vroom, 98, shows that the legislature have power to change the situs of a particular species of personal property for purposes of taxation, without interfering with equality of taxation. The court also held in that case that a law providing that mortgages should be taxed in the township where recorded, provided the mortgagor deducted the mortgage debt from his indebtedness, thereby leaving it at the option of the mortgagor whether he or the mortgagee should pay the tax substantially on the mortgage debt. In the course of the opinion, the court said: "If property be such in its nature as, upon ordinary principles of taxation, to be capable of having a two-fold situs for taxation, the legislature may select either as the place where the tax shall be laid. Chattels considered under the leading classification of personality follow the person of the owner, and yet chattels may be so localized in use as to be taxable at the place where they are situated, as against the owner who resides elsewhere within the state."

State v. Falkenburge, 3 Green, 320. "A mortgage possesses the same dual characteristics." "The legislature may, I think, select as the situs of taxation of mortgages, either the political division where the owner resides or that in which the mortgaged premises are situate." "A law which subjects property to taxation, at the rates of taxation which are uniformly applied in the state in taxation for state purposes, and in the county and municipality in which the property is taxable, in taxation for county and local purposes, observes the constitutional requirement of uniformity in the rules of taxation."

It follows that the objection of the want of equality because of the change in the situs of property for taxation may be dismissed as not within the purview of the constitutional limitation in question, and as wholly unsound.

The next and last objection to the act is that it is a special law. It was argued by Hill in Allen v. Hirsch, 8 Org., 412, that the word 'special" in section 23, article 4, of the constitution, must receive its legal definition, and consequently that a special law under that section is a private law at common law. This view was sustained by the court, and it is difficult to see how any other conclusion could have been reached; for the rule is, and it applies to constitutions as well as legislative acts, that "Whenever the legislature uses a term without defining, which has a definite legal meaning affixed to it, they must be supposed to use it in the sense in which it is construed in the law" Hillhouse v. Chiston, 3 Day, 2. The section in question was taken from the constitution of the state of Indiana, and the same construction has been put upon it in that state. See Toledo, etc., Co. v. Nordyke, 27 Ind., 95.

It was suggested in Dundee & Co. v. School district No. 1, 3 West Coast Rep., 241, U. S. circuit court for the district of Oregon, August, 1884, that Allen v. Hirsch was impliedly overruled in Manning v. Klippel, 9 Oregon, 376. This was an error. The question in one case was whether the law was special, and in the other whether

it was local. It was never for a moment supposed in Manning v. Klippel that the act was a special law. It was a general law, partial in its operation and therefore local. An instance of a public local law similar to the one in that case is seen in Marr v. Eulo, 1 Ye, 452, where an act authorized "the county courts of ten of the counties in the western district, Obion being one, to lay a tax of twelve and one-half cents on each one hundred acres, for five years, to be applied in clearing out the streams in the counties, respectively." It was not claimed in Allen v. Hirsch that the act was local, but that it was special, which is quite a different thing. The court indeed made a slip of the pen in that case, in suggesting that the question was effected by the provision declaring that every statute shall be considered a public law unless otherwise declared in the statute itself, for that is but a rule of evidence: Beaty v. Knowles, 4 Set., 156. The decision, however, was not put upon that

ground.

If the law be such that all persons placing themselves in the situation contemplated by the law must take notice of it at their peril, such law would seem to be a public law.

Such is the case of laws levying taxes. The incongruity between an object necessarily public, as taxation, for general purposes of state and the accomplishment of that object by a private law is manifest. All such laws are public in their nature. "Public acts of parliament are binding upon every subject, because every subject is, in judgment of law, privy to the making of them, and therefore supposed to know them, and formerly the usage was for the sheriff to proclaim them at his county court:" The King v. Sutton, 4 M. & S., 542.

"An act of parliament," says Lord Holt, "concerning the revenue of the king, is a public law:" 12 Mod., 249. This is the case, though it be otherwise particular: Knightly v. Spencer, 1 Leon, 333, and see Ingram v. Foot, 12 Mod., 613.

One reason why an act was held public in Jones v. Axen, 18 Raym., 120, was, Because all the people of England may be concerned as creditors to these poor persons.' And per Traby, C. J., "If the act concerning the bishops were to be adjudged now, it would be adjudged a general act." See, also, Unity v. Burroge, 103 U. S., 447; Smith v, Strong, 2 Hill, 247; Heridia v. Ayers, 12 Pick., 334; Young v. Bank of Alexandria, 4 Cr., 384; 1 Cr., C. C., 458.

It was argued in Burnham v. Webster, 5 Mass., 268, that an act of the legislature of Massachusetts entitled, "An act for the preservation of the fish called bass, in Dunston river, in Scarborough, in the county of Cumberland," was a private statute. But Parsons, C. J., said: "We are of the opinion that the statute referred to is a public statute. It is obligatory upon all the citizens, and they must notice it at their peril."

So, in this case, every citizen taking a one county mortgage must take notice of the act which taxes the mortgage in the county where the mortgage is recorded. He is bound by it, which cannot be,

unless he is supposed to know that the act has been passed. The law seems decisive that the act is not a special or private law.

The judgment of the court below will be accordingly affirmed,
THAYER, J., concurring.

Upon the last point discussed in the opinion LORD, J., expressed no opinion.

DWEEK v. GALBREATH.

Filed January 27, 1885.

TRESPASS JURISDICTION OF JUSTICE TO TRY TITLE-DEFENSE OF TITLE HOW MADE AVAILABLE.-A justice's court has jurisdiction to try an action in the nature of a trespass to real property, where the plaintiff, at the time the injury was committed, was in the actual possession thereof, or in any case where the plaintiff can establish his right without being obliged to prove his title. If the defendant controverts the plaintiff's title, the justice must disregard such defense, as he has no jurisdiction to try the question of title. The remedy of the defendant, when his defense involves a question of title, is to enjoin the justice from proceeding in the action.

APPEAL from the circuit court of Washington county. The opinion states the facts.

Thos. H. Tougue, for the appellant.

W. D. Fenton, for the respondent.

THAYER, J. This case originated in justice's court. The appellant brought an action in that court to recover damages for an alleged trespass upon certain lands, described in the complaint, of which he alleged that he was the owner and in the possession. Neither the ownership nor the possession was denied by the respondent, but he alleged, as a defense, that a portion of the said lands was a public highway, that he was the supervisor of the road district in which it was situated, and that his entry was to open and work said highway, as such supervisor. The defense was complete, if the justice's court had any jurisdiction to inquire into it; but it raised the question of title to real property, which the justice could not try, though he had jurisdiction to try the issue tendered by the appellant. A justice's court has jurisdiction to try an action in the nature of a trespass to real property, where the plaintiff, at the time the injury was committed, was in the actual possession thereof, or in any case where the plaintiff can establish his right, without being obliged to prove his title to the property. Under this condition of affairs the justice should have excluded the respondent's defense, and directed his inquiry simply to the question of damages. The respondent, as the law of this state is at present, had no remedy, except to commence a suit in equity to restrain the appellant's proceedings in the action, which he could have done by alleging the facts of the case. The circuit court had no more jurisdiction in the action than the justice had, and should have disposed of the case in the same way. The law, as it stands upon this subject, presents an embarrassing feature to litigants; but it has been occasioned by the

neglect on the part of the legislature to re-enact a provision of the old code of 1855. On page 500 of that code, section 54, will be found a provision for disposing of such cases, where title to land was in question, which was by certifying them into the district court. Some such provision should be re-enacted, which would relieve such cases of the difficulty suggested. But until that is done, cases of this kind will have to take the course here indicated, as it will not do to override the statute which withholds jurisdiction from justices' courts in actions in which the title to real property comes in question; nor to hold that the defendant, by interposing an answer drawing such title in question, can strip those courts of jurisdiction where they otherwise would have had it.

Under these views, we have to reverse the judgment appealed from. An order will, therefore, be entered accordingly, and the case remanded for a new trial.

VICTOR ET AL. v. DAVIS.

Filed January 30, 1885.

JUDGMENT AFFIRMED on the authority of Odell v. Baker, 9 Or., 298.
APPEAL from the circuit court of Columbia county.

E. D. Shattuck, for the appellant.

Geo. H. Williams, for the respondent.

BY THE COURT. The principle announced in Odell v. Baker, 9 Or., 298, and other cases of this court, is conclusive of the question here involved, and the judgment must be affirmed.

SUPREME COURT OF UTAH.

GELBERSON V. MILLER MINING AND SMELTING COMPANY.

Filed February 5, 1885.

NEW TRIAL-ASSIGNMENT OF ERRORS-VERDICT AGAINST LAW.-On a motion for a new trial, an assignment of error, that the verdict was against law, should be disregarded as too general, where there is no specification or indication why or in what way, or for what reason, the verdict was against law.

ARGUMENT OF COUNSEL-READING TEXT BOOK TO JURY NOT ERROR.-It is not error for counsel to read to the jury an extract from a legal text book, in illustration of his argument, if the jury at the time are admonished by the court not to receive the same as law. Such practice, however, is objectionable.

INSTRUCTIONS WHEN NOT REVIEWED-RECORD MUST CONTAIN TESTIMONY.-Alleged error in giving or refusing instructions will not be reviewed on appeal, where the record does not contain the testimony given at the trial, so that the court can determine the applicability of the instructions.

APPEAL from an order of the third district court granting the plaintiff a new trial. The opinion states the facts.

R. N. Baskin, for the appellant.

Pressly Denny, for the respondent.

EMERSON, J. The suit was brought to recover for two thousand eight hundred and eighty-six railroad ties at fifty cents each, and for one thousand five hundred cords of wood at two dollars per cord. In its answer, the defendant claimed it bought of the plaintiff rail- . road ties amounting, at an agreed price, to two hundred and ninety dollars and sixty-seven cents, which, by agreement, it had credited upon a balance found due from the plaintiff to the defendant upon a final settlement of previous dealings between them. The answer then proceeds: "That, except the railroad ties above-mentioned, plaintiff did not, at the time alleged in the complaint, or at any other time, sell or deliver to defendants any railroad ties whatever, nor has said plaintiff at any time sold or delivered to defendant any wood whatever."

There was a jury trial and verdict for the defendant. The plaintiff moved for a new trial, which was granted, and this appeal is by the defendant, from that order.

The order does not state the grounds upon which it was granted; we must, therefore, review it upon the assignments of error on the plaintiff's motion in the court below.

The first error assigned is, that the verdict was against law.

For the reason that there is no specification, or indication why, in what way, or for what reason this is so, the objection is too general, and should have been disregarded by the court below.

Another exception is, that the counsel for defendant was permitted by the court to read a short extract from Greenleaf on Evidence, in his argument to the jury. Upon objection being made, the counsel for the defendant, before reading the extract referred to, stated, "That he did not claim that the jury could receive the portion which he proposed to read from said book, as the law of this case, as the law must be given by the judge in instructing the jury; but that he claimed the right to read from said book, simply to illustrate his argument to the jury, and would adopt what the author said on the point under consideration, as expressing counsel's views of the weight which should be given to verbal admissions or conversations when testified to by third parties, and that he did not claim to the court or jury that anything so read should have any other or greater force than to illustrate the point;" whereupon, the court permitted the counsel to read from said book, but at the same time stated to the jury that they were to understand that the portion so read, was not to be received by them as law, as that would be announced to them by the court.

There was no error in this. The extract was read, as stated by counsel, merely in illustration of his argument. However objectionable a practice this may be, it is allowable within the sound discretion of the court, and no inflexible rule, as to allowing or limiting