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question was doubtless passed for the purpose of
protecting the public from imposition in the pur-
chase of a class of goods, the quality of which can-
not well be determined by artificial light, and for
that reason every intendment should be indulged
in support of its validity, but the statute, which it
is claimed confers the only authority upon the coun-
cil for its passage, is in derogation of the common
law, and must be strictly construed."

In Kennedy v. New York Cent., etc., R. Co., 35 Hun, 187, it was held that a widow is entitled to the services of her minor child. The court said: "Whatever notion may have previously been entertained upon this subject, that question has lately been answered in the affirmative by a series of cases which must be deemed to settle it in this State. In Gray v. Durland, 50 Barb. 100, 211, the plaintiff, a widow, sued for the seduction of her minor child. It appeared that the daughter was of the age of sixteen years; that at the time of the seduction she lived at the defendant's house as a domes

also to his right of custody and control, and to the services of the children. In this case, as in Gray v. Durland, there was strong dissent, so that it is clear that the decision was made upon full consideration of both sides of the question, not only at the argument, but in consultation. These cases are cited by Gilbert, J., in Certwell v. Hoyt, 6 Hun, 575, 577, as deciding that the widowed mother is entitled to the services of the minor child. We regard the rule as now firmly settled in this State upon the authority of the cases above cited." To the same effect, Hammond v. Corbett, 50 N. H. 501; S. C., 9 Am. Rep. 288; Matthewson v. Perry, 37 Conn. 435; S. C., 9 Am. Rep. 339.

RULES AS TO THE PRIVILEGES OF WIT

NESSES.
V.

RULE. Where a witness refuses to answer a question on any of the grounds mentioned in the preceding rules, the court is bound by his refusal, (a) unless the grounds of his privilege being before him, the judge can see that the witness is mistaken concerning his liability as a matter of law (1) (b).

ILLUSTRATIONS.
(A.)

1. A party is asked whether he has in his possession any deeds or writings relating to the lands in dispute. He replies that he has, but that they relate exclusively to his own title to the lands, and do not show any title in the opposite party. He cannot be compelled to disclose their contents or to describe them (2).

In case 1 it was said: "The course of administration of the law in this country has always been never to compel a witness to answer a question which has a tendency to criminate himself. This is

tic and servant, receiving her wages and using
them for her own support. The sole question pre-
sented in the case was whether the mother of the
minor was entitled to her services.
This appears
from the opinion of Miller, J., delivering the opin-
ion of the court, and by the opinion of Hogeboom,
J., dissenting. The decision was that the mother,
as such, had the right to maintain the action as the
natural guardian of the minor, as the person
bound to maintain and support her, and as the par-
ent who is entitled to her services upon the death
of her father. The case of Gray v. Durland was
followed in Simpson v. Buck, 5 Lans. 337, which
was an action by the mother to recover for the
services of her minor son while in the employ of
defendant. The only question presented was
whether the mother was entitled to the services.
The court below held that she was not, and judg
ment went against her. Upon appeal the General
Term reversed the judgment, saying that Gray v.
Durland was put upon the ground stated above,
and was decisive of the question. The same point
was again presented in Furman v. Van Sise, 56 N.
Y. 435; S. C., 15 Am. Rep. 441. In that, as in the
former case, the daughter at the time of the seduc-
tion was not in the actual service of the mother,
and the case turned upon the same question pre-
sented here, whether the mother being a widow
was entitled to the service of her minor child.
Judge Grover, delivering the opinion of the court,
says that the law imposes upon the father the duty
of providing for and maintaining the infant off-
spring; but after the death of the father the same
law casts this duty solely upon the mother who
must, if of sufficient ability, maintain, educate and
take care of her infant children. As the result of
this obligation, he says she is entitled to the cus-
tody and control of such children; succeeding in
this respect not only to the obligations and duties Scammon, 29 N. H. 290 (1854).
primarily resting upon the father during life, but

(1) In R. v. Garbett, 3 C. & K. 474; 1 Den. C. C. 236 (1847), which was considered by all the judges, it was laid down that If a witness claims the protection of the court on the ground that his answer would tend to criminate him, and there appears reasonable ground to believe that it would do so, he is not compellable to answer. In New York it has been held that the judge should explain to the witness what acts amount to a crime or subject him to a penalty, and what not. Close v. Olney, 1 Denio, 320 (1845). The question of privilege is for the court, not the jury. Phelin v. Kenderdine, 20 Penn. St. 363 (1853); Floyd v. State, 7 Tex. 215 (1851). In some of the English cases it seems to be laid down that the witness must satisfy the court that the effect of his answer will be to criminate himself, before he will be excused from answering. Short v. Mercer, 3 Mac. & G. 212 (1851); Parkhurst v. Lowten, 2 Swanst. 203; Chambers v. Thompson, 4 Brown Ch. 433. When he places himself upon his privilege he will be protected, unless the court can see from the circumstances of the case that he is in error; that it is a mere pretext on the part of the witness to avoid answering, and that his answer cannot, from the nature of things, criminate him. It must be manifest however that in many cases it will be impossible for the court to anticipate what effect the answer may have, and whenever they cannot see that he will not be criminated, the privilege will be recognized and protected." Jauvrin v.

(2) Adams v. Lloyd, 3 H. & N. 351 (1858).

every man's house his castle, and attaches such importance to the protection of property in land. The distinction which the law has at all times made between real property and personal property may in part have arisen from this: that if a man has land he is considered as holding it under a grant from the crown; if he has some personal property he holds it directly or indirectly, by reason of some contract. The rule that a man shall not refuse to answer, because the answer would subject him to a civil suit, has long prevailed; for

ence of opinion on that point, the matter was finally settled by 46 Geo. 3, chap. 37, which makes the broad distinction in this respect between civil suits and criminal proceedings. To apply these remarks to the case now before us: The question is, whether the plaintiff is bound to produce his title deeds. To compel him to do so would introduce a new rule, which certainly was never intended by this act of Parliament, and would render a title deed of no more importance than a bill of exchange or any other written document. I think that a man's title deed is still protected, unless it tends to prove the case of the opposite party; if it does not, it is irrelevant. The recent changes in the law have made no alteration in that respect. There is a

considered so sound a principle that the right of a plaintiff or defendant in a civil suit is taken away by it, however important the testimony may be, even though it might establish his title to an estate or interest ever so large. Doubts have arisen as to the extent to which the privilege may be carried, and whether there are any limits to the protection of a witness. The only exception I know of is this: where the judge is perfectly certain that the witness is trifling with the authority of the court, and availing himself of the rule of law to keep back the truth, having in reality no ground what-though at one time there was considerable differever for claiming the privilege, then the judge is right in insisting on his answering the question. But it would be very inconvenient to lay down as a rule, that the party questioned is bound to go so far as to satisfy the judge that the answer to the question might criminate him. In disclosing the source of danger he might place himself in peril, and cause the very mischief which the law meant | to prevent. It appears to me therefore that the law is as pronounced by Maule, J., in Fisher v. Ronalds, and although some doubts may have been expressed as to the correctness of his view, I do not find any conflict of decision on the subject. In the case of Fisher v. Ronalds the other judges did not state the rule so broadly; none of them however dissented from it. Williams, J., gave a judg-power to call for documents; first, one party may ment quite sufficient for the purposes of the case before him, saying that he thought it abundantly clear that the answer of the witness must have a direct tendency to place him in danger, but he declined saying: Who is to judge whether that is so? It is impossible to satisfy the judge without exposing the whole matter; and a man may be placed under such circumstances with respect to the com mission of a crime, that if he discloses them he might be fixed upon by his hearers as a guilty person; so that the rule is not always the shield of the guilty, it is sometimes the protection of the innocent, although very likely it was originally introduced from humane motives, being probably derived from the maxim nemo tenetur se ipsum accusare.' Such being the rule, we are enabled to come to a just conclusion with respect to the proposition which the plaintiff's counsel so ably advo-produced with those parts sealed up. But how is cated. That proposition is, that if a plaintiff or defendant has deeds in his possession, and says that they do not relate to the title of the opposite party but solely to his own, then the opposite party has no right to say, 'I should like to be satisfied of the fact myself; I doubt whether you entertain a correct view of the meaning of the documents, or are quite honest in your representation of their nature.' If the information respecting them can be obtained, the mischief is done the opposite party would acquire some knowledge which he is not entitled to. Moreover, the answer might enable some one else to take proceedings, and thus a person might lose his estate. The distinction between title deeds and other things is in a great measure dependent on the dogma which makes

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inquire whether the other has in his possession or power any documents relating to the matter in dispute; that means, 'have you any documents which I am entitled to see? If so, state them, and then I will call for them.' If the party interrogated says on oath, 'I have no such documents; you have no right to know how many deeds I have in my chest, but I swear that I have no documents which relate directly or indirectly to the matter in dispute,' then the other party has no right to inquire any further. That is in accordance with the right of search in other cases. After a dissolution of partnership one of the partners may have in his possession a book which the other wishes to inspect. The latter has a right to see such portions of the book as relate to matters in which he is concerned, but he has no right to see the rest. Then the book is

that determined? By the oath of the party. Such has always appeared to me to be the law, and I think that after this discussion it will no longer be looked upon as uncertain."

* * *

In Fisher v. Ronalds (3), Maule, J., said: "The witness might be conscious that there was evidence against him which his answer might render complete. It is the witness who is to exercise his discretion, not the judge. The witness might be asked, 'were you in London on such a day? and though apparently a very simple question, he might have good reason to object to answer it, knowing that if he admitted that he was in London on that day his admission might complete a chain of evidence against him which would lead

(3) 12 C. B. 763 (1852).

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* *

tificate is a full protection to him, the witness will be compelled to answer (7).

3. A witness is asked whether he knew of any one, other than himself, being engaged in gambling at a certain place at a certain time. The witness refuses to answer because it will criminate him. The judge may compel an answer (8).

to his conviction. It is impossible that the judge
can know any thing about that. The privilege
would be worthless if the witness were required to
point out how his answer would tend to criminate
him. * * * The rule is of considerable an-
tiquity, and I am not aware that any great practi-
cal inconvenience has been found to result from it.
I think you must contend here that the witness' an- 4. A witness says: "I decline to answer that
swer could not possibly place him in jeopardy, be- | question, because it may show that five years ago I
fore you can say that the judge was wrong in exercised an office without first taking the oaths."
refusing to compel him to give it.
*I The judge decides, as a matter of law, that a sub-
think the judge is bound by the witness' oath, sequent act has repealed penalties of this kind.
otherwise you might exhaust all possibilities con- He will therefore compel an answer (9).
sistent with a man's innocence, and so convict him
of murder." And Jervis, C. J., added: "We
must allow the witness to judge for himself, or he
would be made to criminate himself entirely. There
is no doubt at times great difficulty in applying
the rule, but it is impossible to help that." In 08-
born v. London Dock Co. (4), where it was argued
that the judge ought to decide whether the wit-
ness' reasons were sufficient for refusing to answer,
Alderson, B., answered: “On the other hand there
is great difficulty in saying where the limit is to be
drawn; for if the court were to decide improperly
that a question may be put, irreparable injustice
might be done to the witness. Suppose, for in-
stance, a witness were asked whether he was in the
company of two other persons at a particular place
at a .certain hour. That seems a very innocent
question, and yet the answer might lead to the con-
viction of the witness for some very serious crime.
The witness may know the effect of the question,
and upon that ground he may refuse to answer it,
although the court may be totally ignorant of its
effect."

(B.)

1. In a proceeding to wind up a company a witness is asked whether he has bought or sold, or had in his possession, any of the shares of the company. He declines to answer on the ground that the company is illegal, and the issue of the scrip illegal, thereby subjecting him to a penalty. It is for the judge to decide this, and if he decides that such transactions are not illegal, the witness must auswer (5).

2. In England it is provided by the Corrupt Practices Prevention Act (elections), that a person giving full answers to all questions as to corrupt practices committed by him shall be freed from subsequent punishment or penalty (6). A witness who has been examined in such an inquiry, and has obtained from the tribunal a certificate of indemnity under the statute, is examined in a prosecution for bribery growing out of the same election. He is asked, "did you at such a time receive a sum of money from the respondent?" He declines to answer on the ground that his answer would criminate him. If in the opinion of the judge the cer(4) 10 Ex. 700 (1855).

(5) Re Mexican & South American Co., 27 Beav. 474; 4 DeG & J. 320 (1859); Sidebottom v. Adkins, 3 Jur. (N. S.) 630 (1857). (6) R. v. Hulme, L. R., 5 Q. B. 377 (1870).

In case 1 it was said: "The first point raises the question whether the witness is to determine the law as to his liability to any penalty. I do not doubt the accuracy of the observation in the case cited, that in a great number of instances the witness himself must be the only person to determine that point, but certainly where all the facts relating to it are brought before the attention of the court, then I am of opinion that it is for the court to determine it, because it is a mere question of law, and such is the case upon the present occasion. I therefore proceed to examine the law of the case, and to inquire whether the witness incurs any liability sufficient to justify him in his refusal to answer the question." And after examining the law the court held that there was no illegality about the transaction. The witness therefore was required to answer, and the ruling was affirmed on appeal.

In case 3 it was said: "In relation to the privilege of witnesses, it is necessary to avoid these two extremes: 1. That of permitting the witness to protect himself by his privilege by refusing to answer questions which cannot, from the nature of the answers sought, criminate him. 2. That of compelling him to answer, when from the nature of the question, the answer would inevitably criminate him. In the first the court must be judge, and compel the answer. In the second the witness is sole judge, and may answer or refuse, as he sees proper. When it is evident to the mind of the court that the answer cannot accuse the witness, the court should require him to respond to the interrogatory. In this case it was evident from the scope of the question that an answer could not possibly infringe upon this right, and yet the witness makes himself the judge, and refuses to answer."

* ** *

JOHN D. LAWSON.

VOID GRANTS OF LAND HELD ADVERSELY.

THE

HE system of practice inaugurated by the Code is, in its spirit, opposed to every thing in the nature of legal fiction. Common sense and ordinary language, as opposed to technicality and circumlocution, lie at the basis of the system and give it vitality and (7) Ex parte Fernandez, 10 C. B. (N. S.) 4 (1861). (8) Richman v. State, 2 G. Greene, 533 (1850).

(9) King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 330 (1851).

consistency. The administration of justice is no longer to be hedged about with mysterious and vapory legal terms. It is to find the fulfillment of its mission less in the theoretical than in the real status of the parties. The veil of the temple of justice has been rent in twain, and the language of the layman instead of the mysterious circumlocution of the priest is to be heard at the altar. The practice of law, as respects the litigation of cases in our courts, has been made a practical matter. It is not so much a problem in algebra, with many and complex signs and symbols, which confuse the uninitiated, as an example in simple arithmetio, the statement of which the merest tyro may comprehend.

Among other provisions of the Code, framed in this spirit, is that contained in section 449, which provides that every action must be prosecuted in the name of the real party in interest. Speaking generally, there would seem to be but little occasion for any judicial interpretation or construction of this provision, and whatever questions respecting its scope and meaning may have been raised, have long since been placed at rest. But connected with this provision and section 1501 we find a clause which has more than once involved courts and litigants in doubt and obscurity. By this clause it is provided that an action may be maintained by a grantee of land in the name of the grantor * * * when the conveyance under which he holds is void because the property conveyed was held adversely to the grantor.

By the provisions of the Revised Statutes (2 Rev. Stat. 1120) " every grant of land shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor."

Here then is discovered a class of cases wherein the real party in interest, namely, the grantee of such "void" grant may not sue in his own name. That he is the real party in interest is unquestioned, for although the grant is declared to be void, it is 80 only sub modo and as between the grantee and third parties. As between him and the grantor the transfer is perfectly legitimate. So that the sense of the Code provision to which I have referred would be something like this: A. has executed and delivered to D. a conveyance of certain real property. But at the time of the conveyance this property was in the actual possession of C., who claimed to hold it adversely. B. is the real party in interest in any litigation to recover the possession from C. But as the statute makes the grant void as respects C., the only party who can prosecute the action is A. But as between A. and B. the latter has a valid conveyance, the Code permits him to use A.'s name iu the action brought to recover possession. This looks a little like circumlocution to the lay understanding. But is, is clear that if B. were to be permitted to sue in his own name, the statute making void such'grants would be rendered ineffective.

The question which I wish to present at this juncture is this: Must the grantee of real property in all cases use the name of his grantor in actions to recover the same as against one holding adversely at the time of the grant? Having in view the phraseology of the Code, and giving it a literal construction, the answer would appear to be in the affirmative. But the courts, drawing inspiration from the spirit which animates our modern system, and at the same time bearing in mind the reason of the rule which avoids such grants, have held that these statutes, clear and unambiguous, as they appear to be, are nevertheless subject to certain exceptions.

Naturally enough, the pleader, not having these exceptions before him, would be governed by the plain terms of the Code provision, and when a case was pre

sented to him, would content himself with ascertaining as a fact whether at the time of the grant to his client, the property sought to be recovered was held adversely. He would thereupon institute proceedings in the name of the grantor of his client, and not until he was met at the trial by a more learned and philosophic opponent, would he discover that in addition to the single preliminary query which he propounded at the outset, there were two other elements in the case which he had quite overlooked. They may be started as queries, thus: First. Did the grantee derive title direct from the grantor, or indirectly through judicial proceedings? Second. Was the adverse holding under a claim of title, or was it a mere adverse possession? In short, if either of these elements were involved in the case, then the grantee, and not the grantor, would be the proper party plaintiff, since the courts have beld that the statute which declares void all grants of land held adversely does not contemplate cases where the transfer is made by operation of law, and not by the direct act of the grantor, nor cases where the dispute is not concerning the title, but the right of possession growing out of disputed boundaries.

In the first class of cases the statute originated in the ancient doctrine of champerty. Its purpose was to prevent a sale of disputed rights, which was contrary to public policy. Says Hawkins: "It seemeth to be a high offense at common law to buy or sell a doubt ful title to lands known to be disputed, to the intent that the buyer may carry on the suit which the seller doth not think it worth his while to do. And it seemeth not to be material whether the title so sold be a good or bad one, or whether the seller were in possession or not, unless his possession were uncontested." 1 Hawk. P. C. (Curw. ed.) 470. And Bishop, under the head of "Champerty" (2 Cr. Law, § 137), says: "This is one of the sources of the rule that a conveyance of land held by another adversely to the grantor is void."

The foundation of the rule and of the statute having thus been made clear, it did not take the courts a great while to see that when a man's property was taken from him by judicial decree or by operation of law, and transferred to another-even though at the time held adversely-the transfer did not come within the mischief contemplated by the enactment, and in accordance with a familiar legal maxim, the reason of the rule having ceased, the rule no longer applied. The first case in which this doctrine was clearly stated was Tuttle v. Jackson, 6 Wend. 224, in which Chancellor Walworth uses this language:

"I am satisfied that the statute against buying and selling pretended titles cannot apply to judicial sales. It is merely an affirmance of the common law, and that has never contemplated preventing change of title by operation of law or by sale by a proper officer under a bona fide decree. It does not come within the mischiefs intended to be guarded against by the statute." In Hoyt v. Thompson, 1 Seld. 345, Ruggles, C. J., said: "A change of property by operation of law or sale by a proper officer under a bona fide judgment does not come within the mischief of the statute." And in the same case Paige, J., added: "The principles of the common law and statutes do not apply to judicial sales or sales made under a decree, etc."

The same principle was enunciated in 14 N. Y. 289; and Stevens v. Hauser, 39 id. 302.

In the second class of cases the authorities simply adopt a sensible construction of the literal words of the statute. It is not every grant of land held adversely which is void, but only such grants as are held by adverse title. There must be not only a claim of possession, but it must be founded on a title adverse. Consequently when two parties claim under the same description or under the same grant, but there is a

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question of boundary, the case is not within the statute. A fortiori, must this be so where the claimant has mere naked possession without any title what

ever.

As was said by the court in Allen v. Welch, 18 Hun, 226: "It would be unreasonable to say that if one of two adjoining neighbors entered on and took possession of a strip between two disputed boundaries, the other could not make a valid sale of his land until the end of a litigation and the removal of the intruder."

In that case each party admitted that the other was owner up to the line, wherever the line might be, and the judgment of the court was that for this reason the doctrine and statute of champerty did not apply. ED. J. MAXWELL.

YONKERS, N. Y.

CRIMINAL LAW-MURDER--CO-DEFENDANT MAY TESTIFY.

MAINE SUPREME JUDICIAL COURT.

STATE V. BARROWS.*

On the separate trial of one of two persons jointly indicted for murder, the other defendant, even while the indictment is still pending against himself on a plea of not guilty, may with his own consent be called as a witness and allowed to testify against his co-defendant.

ON exceptions.

Indictment against Oscar E. Blaney and Mary E. Barrows for the murder of Thomas Barrows at Kit

tery, on the 14th of November, 1883. The respondents severally pleaded not guilty. On motion of Mary E. Barrows a separate trial was granted her and she was first put on trial.

The opinion states the question presented by the exceptions.

Henry B. Cleaves, attorney general, and Frank M. Higgins, for State.

Ira T. Drew, William Emery, and John B. Donovan, for defendant.

PETERS, C. J. Mary E. Barrows and Oscar E. Blaney were jointly indicted for murder. She was separately tried. Blaney, without any further disposition of the indictment as to him than his plea of not guilty, was called as a witness against her. The bill of exceptions presents the question, whether if two are indicted jointly, and one pleads not guilty, his testimony, if he consents to be a witness, is admissible for the State on the separate trial of the other defendant.

In this State it is a question to be decided upon the principles of the common law as amendedfor modified by statutory provisions.

As a question simply at common-law, although there is a contradiction in the cases, the preponderance of authority seems to favor the admission of a co-defendant, not on trial as a witness, if called by the prosecution. There is very much less authority allowing him to be sworn as a witness for the defense. Whether the distinction be a sensible one or not, it has prevailed extensively. There are really but a few adjudged cases upon the point whether such testimony is admissible for the State, for the reason, probably, that a prosecuting attorney can avoid the question by omitting to indict one party, or by obtaining separate indictments. The defendant having no such election, the cases affecting the testimony in his behalf are more

numerous.

*S. C., 76 Me. 401.

Most of the authors on evidence evidently adopt the view that the testimony is admissible when offered by the State. Although but little authority is adduced to support their statements, and the doctrine is not very clearly or positively stated in some instances, still such a general concurrence of favorable expression has much weight upon the question. It goes far to show the common opinion and practice. Hawkins P. C., book 2, ch. 46, § 90; 1 Hale P. C. 305; 2 Starkie Ev. 11; Roscoe Crim. Ev. (9th ed.) 130, 140; 2 Russell Crimes, 957. Mr. Wharton says: "An accomplice is a competent witness for the prosecution, although his expectation of pardon depends upon the defendant's conviction, and although he is a co-defendant, provided in the latter case his trial is served from that of the defendant against whom he is offered." Whart. Cr. Ev. (8th ed.), § 439. Mr. Greenleaf states the same rule. He says: "The usual course is, to leave out of the indictment those who are to be called as witnesses; but it makes no difference as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put on his trial at the same time with his companions in guilt." 1 Greenl. Ev., § 379.

The counsel for the defendant places especial reliance on Mr. Bishop as an opposing authority. That learned commentator evidently attaches more weight to that side of the question than other writers do. 1 Bish. Cr. Proc. (3d ed.), §§ 1020, 1166. But Mr. Bishop states that all the cases are not in accord with his text, and also says, in a note to the section cited supra, that the late English doctrine seems to differ from the rule recognized by him. We find it to be so. Late English cases are quite emphatic to that effect. Queen v. Thompson, L. R., 1 C. C. 378; Queen v. Winsor, L. R., 1 Q. B. 390; Queen v. Payne, L. R., 1 C. C. 349; Queen v. Deeley, 11 Cox. C. C. 607. The defendant's counsel however in their able and exhaustive brief contend that the late English cases are based upon acts of Parliament in amendment of the common law. It cannot be so, for Chief Justice Cockburn in Queen v. Payne, supra, declares the rule to be according to the law " it has existed from the earliest times," and other judges gave their opinion that the new enactments were not intended to apply to criminal cases. See cases, supra.

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The question before us does not appear in any reported case in this State. State v. Jones, 51 Me. 125, approaching the question nearer than any other case, merely decides that when two are indicted, and one pleads guilty, his testimony is admissible for the other defendant. Kent, J., says in the opinion: "It seems to be settled that he cannot be thus called whilst the charge in the indictment is pending and undisposed of against him. And this whether he is to be tried separately or jointly." That is, the defendant cannot be called by the co-defendant. The latter remarks are a correct statement of the law of New York, and New York cases are cited in support of it. See 17 Alb. L. J. 421. In 1876 however the privilege of calling a codefendant to testify, before that time possessed by the prosecution only, was extended by a legislative enactment to all parties. 18 Alb. L. J. 160. The case of Lindsay v. People, 63 N. Y. 143, relied upon by the defendant's counsel, upon a correct understanding of it, does not contradict previous decisions in that State.

The argument against the admission of such evidence does not strike us with much force. It is almost universally admitted that an accomplice separately indicted may be a witness for the State, and any distinction arising between trials on a joint indictment and trials on separate indictments is not readily appreciated. The crime is supposed to be jointly committed in either case. If there are separate indictments, the fact of joint criminality is not withheld from the

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