MARRIAGE. (BREACH OF PROMISE.-DAMAGES.—

EXCESSIVE VERDICT.)

UNITED STATES CIRCUIT COURT FOR THE
DISTRICT OF Oregon.

In McCarty v. Heryford, 125 Federal Reporter 46, a verdict of $22,500 for breach of marriage promise, against a man shown to own property worth $70,000, incumbered by a mortgage for $20,000, was held so excessive as to indicate passion or prejudice on the part of the jury, the offer of marriage having been renewed in good faith after the commencement of the action, and the matters of aggravation relied on by the plaintiff not having been sustained by a preponderance of the evidence. The court reviews a number of verdicts in this class of cases and says the verdict in the case at bar is unusual. In Campbell v. Arbuckle, 4 New York Supplement 30, a verdict for $45,ooo was sustained, but that verdict amounted to only four and one-half per cent., for one year of the defendant's estate. In another case a verdict for $25,000 was allowed to stand, that sum being one-sixth of the defendant's fortune. In other cases verdicts for $16,000 and $12,500, where the defendants were worth $50,000 and $75,000 were approved, the recovery in each instance being increased by matters of aggravation. In the present instance the court says that if the verdict is allowed to stand, in view of the incumbrance already on defendant's property, it will wipe out his entire estate at forced sale; and that if a jury may thus divest a man of his property, its power ought to be exercised with great caution.

violate the Sherman anti-trust law, as in restraint of interstate commerce, while the discrimination against local dealers purchasing elsewhere affects interstate commerce only directly and incidentally.

MURDER.

PLEA OF

(REVERSAL OF CONVICTION.
GUILTY OF MANSLAUGHTER.-POWER TO ACCEPT.)
UNITED STATES CIRCUIT COURT FOR THE
DISTRICT OF NEBRASKA.

In United States v. Linnier, 125 Federal Reporter 83, an interesting question of practice in homicide cases is presented. The defendant was indicted for murder, was convicted, and then filed a motion for new trial which was sustained. He thereupon offered to file a plea of guilty of manslaughter and allow sentence to be pronounced thereon. The United States attorney objected to the receiving of such a plea, and the question was as to the power of the court in the premises. The evidence had shown the defendant guilty of manslaughter only. A number of cases are cited to show that a reviewing court, on determining that the evidence shows defendant guilty of a lesser crime than that for which he was convicted, may enter judgment for that crime on the verdict already rendered. State v. Schele, 52 Iowa 608, 3 Northwestern Reporter 632; State v. Keasling, 74 Iowa 528, 38 Northwestern Reporter 397; Commonwealth v. Squire, 1 Metc. (Mass.) 258, are cited as instances in which the lower court had pronounced sentence for a lighter offense than that found by the verdict to have been committed. The court then says that it can therefore be said that instead of setting aside the verdict over the objection of either or both of the parties, the court, on the verdict as it stood, because of the state of the evidence, could have pronounced a judgment for manslaughter; and having such power, it is more than certain that the court could and should receive the plea of the lesser offense and pronounce judgment thereon. In concluding, the power of the United States attorney is reviewed, and his objection held not to be insurmountable.

RAILROADS. (CROSSING ACCIDENT.-INJURY RESULTING IN SUICIDE.-COMPANY'S LIABILITY.)

MASSACHUSETTS SUPREME JUDICIAL COURT.

In Daniels v. New York, N. H. & H. R. Co., 67 Northeastern Reporter 424, it appeared that plaintiff's testator received a blow on the head in a collision at a railroad crossing. His mind was clear for several weeks, but then he showed symptoms of insomnia and restlessness, had headaches, was melancholy, and at times delirious. An autopsy showed circumscribed meningitis, producing mental aberration. The accident occurred on August 12th, and on the 3d of the next October the testator committed suicide by strangling himself with a napkin. The question was whether his life was lost by the collision, so as to render the railroad company liable. In holding that the death was due to a new and intervening cause, so as to acquit the company from liability, the court cites a number of authorities including Dean v. American Ins. Co., 4 Allen 96, and Cooper v. Massachusetts Mutual Life Ins. Co., 102 Mass. 227, 3 Am. Rep. 451, to the effect that if death is the result of volition by one who has a conscious purpose to end his life, and has intelligence to adapt means to ends, it is his own act, though he is so far insane as not to be morally responsible for his conduct. This doctrine is contrary to that declared in Breasted v. Farmers' Loan & Trust Company, 8 N. Y. 299, 59 Am. Dec. 482; Life Insurance Company v. Terry, 15 Wall. 580, 21 L. Ed. 236; Manhattan Life Insurance Company v. Broughton, 109 U. S. 121, 3 Sup. Ct. 99, 27 L. Ed. 878.

All of these cases were insurance cases. But in Scheffer v. Railroad Company, 105 U. S. 249, 26 Law Ed. 1070, the same question was involved as in the present suit, and the Supreme Court of the United States held that the representative of a person who was injured in a railroad accident and took his own life while insane, about eight months afterwards, could not recover against the railroad company. The court says that the subject brings it "near to the vexed theological problem as

to free will and pre-destination;" but with commendable caution it declines to "pursue these inquiries too far."

SOLDIERS. (HOMICIDE IN LINE OF DUTY —MARTIAL LAW.-WHAT CONSTITUTES.)

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SUPREME COURT OF PENNSYLVANIA.

In Commonwealth cr rel Wadsworth Shortall, 55 Atlantic Reporter 952, the relator petitioned for habeas corpus secure discharge for an arrest for homicide committed by him during the coal miners' strike of 1902, and while he was on duty as a member of the Pennsylvania militia. He was posted as a sentry in front of a private residence, with orders to halt all persons prowling around or approaching the house, and if the persons failed to respond to his challenge "to shoot, and shoot to kill." The country was much disturbed, and dynamite outrages were threatened. About 11.30 o'clock relator discovered a man approaching the house and called "Halt" several times. His challenge being disregarded, relator, in accordance with his orders, fired and killed the man. The court's first holding is that where the Governor issues a general order calling out the militia to suppress violence and maintain the public peace in a strike district, it is itself a declaration of qualified martial law. The court says it is not unmindful of eminent authorities who declare that martial law cannot exist in England or the United States in time of peace; but relies on the dissenting opinion of Chief Justice Chase in Ex Parte Milligan, 71 U. S. 2, 127, 18 Law Ed. 281. The court also remarks that many other authorities hold that martial law exists wherever the military arm of government is called into service. Many authorities, English and American, are then reviewed to show that a soldier is bound to obey the orders of his superior officer where they do not clearly show their own illegality, and that he would be protected in doing so; and that, where a militiaman without malice, under an order of an officer and in performance of his supposed duty, commits a homicide, he is ex

cusable, unless it was manifestly beyond the scope of his authority. The circumstances of the case are then held to have justified the militiaman's action.

TRADING STAMPS. (CONSTITUTIONAL LIBERTY.— EXERCISE OF POLICE POWER.)

VIRGINIA SUPREME COURT OF APPEAL.

In Young . Commonwealth, 45 Southeastern Reporter 327, the highest tribunal in Virginia considered the constitutionality of Acts General Assembly, 1898-98, p. 442, prohibiting the use of trading stamps. The ground of attack.

was that the act violated the constitutional guaranties of liberty contained in the Fourteenth Amendment, and in Article I, Section I of the State constitution. The court held the act void. The opinion defines liberty as including the right to follow such pursuits as may be best adapted to the citizen's faculties, and which will afford him the highest enjoyment; to live and work where he will, and earn a livelihood by any lawful calling; and for that purpose to make necessary contracts. (Citing Powell v. Penn., 127 U. S. 678, 18 Sup. Ct. 992, 1257, 32 L. Ed. 253; Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832; People v. Gillson, 109 N. Y. 389, 17 N. E. 343, 4 Am. St. Rep. 465; State v. Dalton [R. I.] 46 Atl. 234, 48 L. R. A. 775, 84 Am. St. Rep. 818.)

ALABAMA SUPREME COURt.

State . Shugart, 35 Southern Reporter 28, was an appeal from an order discharging on habeas corpus a defendant who was in custody on the charge of violating Criminal Code, Section 4808, prohibiting lotteries or other gift enterprises. The court sustained the defendant's release, holding that a trading stamp business which he had been conducting, was not a "gift enterprise." The case turns on the definition of that term which, on a somewhat elaborate review of authorities, the court decides to mean a scheme for the distribution of articles depending on some element of chance. The case of Lansburg v. District of Columbia, 11 App. D. C., 512 attaching a different meaning to the term, is distinguished in view of the statutory definition there construed, and is tacitly disapproved.