import, that no suggestion can be found in any of the reports, so far as I can discover, of the limitation now con tended for. If a practice prevailed in opposition to the natural import of the words, a trace of it would have been found. There would have been some judge or lawyer who "would have queried how this could l>e. The distinction is between actions of a referable quality, and such as are not referable by their very nature. In the one class the court may compel a reference, if on ' either side ' there is a long account; in the other no reference can be compelled however many items of damage there maty be. I think the order should be affirmed." Behold, how certain our laws be! Extradition — Shooting Across State Bound ary. — A case of first impression is State?/. Hall, North Carolina Supreme Court, 40 Cent. Law Journ. 148. Defendant, being in North Carolina, fired a shot across the boundary and killed a man in Ten nessee. He was tried for the murder in the North Carolina court, but it was held that the Tennessee court alone had jurisdiction (114 N. C. 909). Then the Tennessee authorities tried to extradite him for trial in the Tennessee court, and the North Carolina Court, two judges dissenting, hold that this cannot be done, because as he is deemed to have been in Tennessee at the time of the killing, he is not a fugi tive from justice. The reasoning of the Court is substantially complete in the following sentences : — "To hold that a person who is liable to indictment only by reason of his constructive presence is a fugitive from the justice of a State within whose limits he has never gone since the commission of the offense, involves as great an error as to maintain that one who has stood still, and never ventured within the reach of another, has fled from him to avoid injury. One who has never fled cannot be a fugitive. Jones v. I^onard, 50 Iowa, 106; 7 Am. & Eng. Enc. Law, 646, and note I; Id. 647. The Supreme Court of Alabama, in a case exactly in point {In re Mohr, 73 Ala. 503), state the prin ciple applicable here with great clearness and force. The defendant was charged with cheating by false pretences a prosecutor in the State of Pennsylvania, though it was admitted that he had never actually gone within the limits of that State. The Court said : — "It is clear to our minds that crimes which are not ac tually, but are only constructively, committed within the jurisdiction of the demanding State, du not fall within the class of cases intended to be embraced by the Constitution or act of Congress. Such at least is the rule unless the criminal afterwards goes into such State and departs from it, thus subjecting himself to the sovereignty of its jurisdiction. The reason is, not that the jurisdiction to try the crime is lacking, but that no one can in any sense be al leged to have fled from a State, in the domain of w hose territorial jurisdiction he has never been corporally present since the commission of the crime." That Court cited to
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sustain this view, among other authorities, Whart. Cr. PI. (8th Ed.) 231; Kingsbury's Case, 106 Mass. 223: Ex parte Smith, 3 McLean, 121; Fed. Cas. No. 12,968; and Wilcox v. Nolze, 34 Ohio St. 520. It seems to us that we should join the dissenters. If the legal imagination is to be employed to trans port the killer to Tennessee, at the time of the kill ing, in order to enable him to escape responsibility, it may healthfully be exercised in transporting him back in order to prevent his evasion of the penalty. The force of constructive presence in the one case is just as violent and absurd as in the other. If there is any such thing as criminal estoppel it exists here. Shall a man be tolerated in saying, " I was in Ten nessee," when tried for murder in North Carolina; and in saying, " I was in North Carolina," when re quired to answer in Tennessee? If this reasoning is valid, here is a fearful casus omissus.
Highways — Use of. — It was recently held, in Jackson v. City of Greenville, Mississippi Supreme Court, 16 South. Rep. 282, that an adult person, playing with a dog on the sidewalk of a city street, is not making such a reasonable use of the street as to entitle him to recover damages against the city if he is injured by a defect in such sidewalk. The Court laid stress on the fact that the plaintiff was an adult, and should have "put away childish things." The Court distinguished Varney v. Manchester, 58 N. H. 430; 42 Am. Rep. 592, when the plaintiff was held entitled to stand on the sidewalk and view a proces sion; and Murray v. McShane, 52 Maryland, 217; 36 Am. Rep. 367, where the plaintiff was justified in stopping for an instant with his foot on a door-sill to tie his shoe; and Duff v. City of Dubuque, 63 Iowa, 171; 50 Am. Rep. 743, where he stopped at a hydrant to get a drink. In City of Chicago v. Keefe, 114 Ill. 222; 55 Am. Rep. 860, a child was held warranted in roll ing a hoop on a sidewalk:— he was still lawfully "traveling." In New York the courts do not resort to such a quibble, but hold outright that children may lawfully play on the sidewalk; McGuire v. Spence, 91 N. Y. 303; "a proposition too plain for comment," McGary v. Loomis, 63 N.Y. 104; 20 Am. Rep. 510. The Massachusetts court is pecu liarly severe on children — will not allow them to ride on turntables, nor play " old man on the castle" on a plank sidewalk, Blodgett v. City of Boston, 8 Allen, 237; nor "tag" on the street, Tighe v. City of Lowell, 119 Mass. 472; but it would let a jury have their say about the carelessness of a boy stop ping to look at toys in a window, while on his way with his father's dinner, and of an adult driver stop ping to pick berries. Hunt v. Salem, 121 Mass. 294; Britton v. Cunningham, 107 Mass. 347. The
