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ration of the petitioner's testimony in divorce [5. CRIMINAL Law -725-ARGUMENT OF ATcases is required by statute; and properly so, TORNEY GENERAL as there is no statutory requirement in that regard. It is part of the substantive law of divorce evolved by the court as a matter of sound public policy, and resides in numerous decisions.

I have examined the original opinion on file in the secretary of state's office and find that Judge Vroom, who wrote the deliverance for the Court of Errors and Appeals, did not preface it with any headnote whatever. The syllabus in the official report is copied from the report of the same case in 65 Atl. 205. The error, therefore, appears to have originated with the editor of the Atlantic Reporter, and to have been copied by the official equity reporter. The one with whom the mistake originated was doubtless misled by an assertion in the opinion (71 N. J. Eq. at page 280), where it is stated that it was insisted that the corroborative testimony offered did not extend to all the essential elements of the offense "defined by our statute." It is the elements of matrimonial offenses that are defined by our statute, and there is, as stated, no statutory requirement that there shall be corroborative testimony. That there must be corroboration, however, is established by a long line of cases.

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[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Arson.] 2. ARSON 25—INDICTMENT-PROOF OF OWN

ERSHIP-IMMATERIALITY.

If the allegation of the indictment that the dwelling house burned was the property of one other than defendant, which allegation was proved as laid, could be construed as alleging the occupancy of the house in the other, as claimed by defendant, the allegation would be immate rial.

8. INDICTMENT AND INFORMATION MATERIAL AVERMENT-PROOF.

167-IM

An immaterial averment need not be proved. 4. CRIMINAL LAW 722(3) - ARGUMENT OF ATTORNEY GENERAL. In a prosecution for arson, the language of the Attorney General in argument, "Will you permit that woman who has looked into your eye and told her story in a way that wasn't possible for an unlettered woman to tell unless it was actually so, will you permit distinguished counsel to crucify such a witness in order that a villain and a criminal may go free?" was legitimate, the characterization of defendant being justified by the evidence; the word "crucify" being used in the sense of discredit.

to the jury's attention their responsibility to the The Attorney General's argument, calling citizens of the county and to their God, not only in relation to the particular case, but also to future cases of like character, though forcible and rhetorical, was within the limits of legitimate 6. CRIMINAL LAW 725-Argument of Atadvocacy. TORNEY GENERAL.

The portion of the Attorney General's argument, asking the jury to consider their oath and to find a true verdict between the state and the prisoner at the bar, was proper.

Transferred from Superior Court, Cheshire County; Kivel, Judge.

John W. Dinagan was convicted of arson, and he excepts. Exceptions overruled. Indictment for arson. Trial by jury, and verdict of guilty. The indictment alleged that:

with force and

"John W. Dinagan, arms, a certain dwelling house, otherwise called a hotel situated in Chesterfield in said county of Cheshire, of the property of one Mary J. Dinagan, willfully, feloniously, and maliciously did set fire to, burn, and consume."

At the conclusion of the state's evidence

the respondent moved to dismiss the indictment on the ground of variance between the allegations in the indictment and the evidence as offered by the state. This motion was denied, and the respondent excepted. During his argument the Attorney General made the following statement:

"Will you permit that woman who has looked into your eye and told her story in a way that wasn't possible for an unlettered woman to tell unless it was actually so, will you permit distinguished counsel to crucify such a witness in order that a villain and a criminal may go free? If so, gentlemen, the responsibility towards citizens of Cheshire county and towards your God is with you, and if on some other occasion some that shall out-Dinagan Dinagan, and some humother villain, some other firebrand, shall rise up ble dwelling house be lost, and some life go to its Maker because of the fire, the responsibility, gentlemen, will rest upon you."

At this point the respondent excepted. Whereupon the Attorney General continued: "I call your attention to the situation, gentlemen, with all sincerity, and, gentlemen, when you measure up the facts in this case, consider the oath you have taken to find the true verdict between the state of New Hampshire and the prisoner at the bar."

To the above statements the respondent excepted.

James P. Tuttle, Atty. Gen., and Roy M. Pickard, Sol., of Keene, for the State. Richard J. Wolfe, of Keene, and Doyle & Lucier and A. J. Lucier, all of Nashua, for respondent.

PLUMMER, J. [1] Arson at common law "is the malicious and willful burning the house or outhouse of another man." 4 Blackstone, Comm. 219. Hence at common law the respondent could not have been convicted of arson in this case, because the evi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

dence disclosed that he was the habitant of the house burned, and not Mary J. Dinagan. In other words it would not have been the burning of a dwelling house of another. But the common law relative to arson is not in force in this state. In 1791 acts were passed making the burning of a dwelling house of another in the nighttime a more serious offense than the burning of it in the daytime, also including other kinds of property. Laws Ed. 1792, p. 245. In 1828 the laws relating to burning property were changed, and the distinction between burning in the night and day time disappeared. Session Laws, Nov. Sess. 1828, p. 362. When the Legislature of 1842 enacted the Revised Statutes, it adopted substantially the recommendations of the commissioners on revision, relating to the burning of property, in which the words "of another" were omitted. Com'rs Rep. 1842, c. 218, §§ 1-3; R. S. c. 215, §§ 1, 2, 4. These statutes, except as to punishment, are the same that are in force to-day. P. S. c. 277, §§ 1-3.

Section 1 of chapter 277 of the Public Statutes, under which the indictment in the present case was found, is as follows:

"If any person shall willfully and maliciously burn a dwelling house, or an outbuilding adjoining thereto, or any building whereby a dwelling house shall be burned, he shall be imprisoned not exceeding thirty years."

The title of this chapter is "Arson and Burning Property." And the marginal annotation opposite section 1 is "Arson, How Punished." It is said this indicates that common-law arson is intended. Doe, J., in State v. Hurd, 51 N. H. 176, discussed this question, and pointed out, that "the index at the head of [a] chapter cannot be wholly relied upon as an accurate designation of the subject-matter of legislation," and then said: "A man may maliciously beat his own horse (State v. Avery, 44 N. H. 392), and he may maliciously burn his own dwelling. If he burns it for the purpose of destroying the home and lives of his wife and children, when they happen without his knowledge to be absent, the burning may be malicious; and there may be malice in other cases. The Legislature might well have intended to provide for such cases, and to remedy a defect of the common law, which has been cured by statute in England. | The omission of the terms 'arson' and 'of the property of another,' in the body of the statute may well be taken as an intentional remedy of that defect, making section 1 to include not merely common-law arson, but something more. in a condensed enumeration of the contents of the chapter, the word 'arson' might well enough be used as an abbreviated expression to answer the practical purpose of conveying a general, though not a complete and precise, idea of the subject-matter of section 1."

be a willful and malicious burning of the house. It could be found from the evidence in this case that the dwelling house at the time of the fire was overinsured, and that it was burned by the respondent to defraud the insurers. The indictment alleging that the respondent willfully and maliciously burned a dwelling house is sufficient. And the proof warranted the verdict of the jury.

[2, 3] The indictment alleges the dwelling house was the property of Mary T. Dinagan, and the allegation was proved as laid. If the allegation could be construed as alleging the occupancy of the house in Mrs. Dinagan as claimed by the respondent the allegation would be an immaterial one. "The statement of ownership was necessary at common law because it was not arson for a man to set fire to his own house. But under the statute it is otherwise; and therefore the averment of ownership is an immaterial averment." The Queen v. Newboult, L. R. 1 Cr. Cas. Res. 344, 347. Here as in England the defect of the common law is cured by the statute. State v. Hurd, supra. An immaterial averment need not be proved. State v. Langley, 34 N. H. 529.

[4] The Attorney General, in his closing argument to which the respondent excepted, indulged in vigorous figures of speech. But we do not think that they were of a character to render the trial unfair and destroy

the verdict. He said:

crucify such a witness (referring to the princi"Will you permit distinguished counsel to pal witness for the state) in order that a villain and a criminal may go free?"

[5] The Attorney General, here used "crucify" in the sense of discredit, and by this term urged the jury that they should not permit counsel to discredit, and destroy the power of the state's evidence, and let a villain and criminal go free. This was legitimate, and the characterization' of the respondent was justified by the evidence.

He then called to the jury's attention their responsibility to the citizens of Cheshire county, and to their God, not only in relation to this case, but also to future cases of like character. As to the present case the jury were legally and morally bound to find the respondent guilty if the evidence was sufficient to require it. It was this responsibility that the state's counsel was endeavoring to impress upon the jury in. figurative speech. The statement that the responsibility for future crimes of this character would rest upon the jury had reference, of course, to their moral responsibility, and must have been so understood by them. The object of the punIf it can be found that the respondent will-ishment of crime not only includes the punfully and maliciously burned a dwelling ishment of the criminal, and protection of sohouse, that is sufficient to warrant a convicciety against his acts, but also the protection under our statute, and it is of no consequence whether the dwelling house was his own or that of another. The burning by the owner of his own dwelling house for the pur

tion of society against all persons criminally disposed. There is no doubt that vigorous enforcement of the law lessens the commission of crimes. In this sense the jury were

commission of crimes in the county. The that it was legally liable for a much smalllanguage used to impress this responsibility er sum than the amount assessed against upon the jury was very forcible and rhetori- it, which it paid under protest. Ical, but within the limits of legitimate advocacy.

[6] The exception of the respondent to that portion of the argument in which the jury were asked to consider the oath they had taken, and find a true verdict between the state of New Hampshire and the prisoner at the bar, is without merit. Following his previous remarks he was asking the jury to do nothing except what they had sworn to do, and there was no objection to calling their attention to the oath they had taken. The argument to which exceptions were taken in this case is similar to that in State v. Small, 102 Atl. 883. The exceptions in that case were overruled, and the same disposition is required of the exceptions here.

Exceptions overruled. All concurred.

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SENT.

The state cannot be sued in the absence of a statute authorizing such suit or without its consent either expressly given or clearly implied. 2. STATES 191(2)-ACTION AGAINST STATE OFFICIAL-UNENFORCEABLE JUDGMENT.

Under Const. art. 55, and Pub. St. 1901, c. 16, § 4, requiring warrants signed by the Governor for all payments out of state treasury, a judgment rendered in action against state treasurer in his official capacity directing him to pay a certain sum of money out of state treasury would be nonenforceable, and suit must be regarded as against state..

3. STATES 191(1) - ACTION AGAINST OFFICIAL-APPEARANCE OF ATTORNEY GENERAL.

In an action against a state treasurer in his official capacity, the appearance of the Attorney General in behalf of such treasurer does not constitute consent on the part of the state to become a party to such action.

4. STATES 191(2)-ACTION AGAINST STATE TREASURER-MONEY PAID UNDER PROTEST. Where taxes are paid under protest and money deposited in state treasury, an action against state treasurer to recover part thereof on theory that money became trust fund with treasurer as trustee will not lie, because, if money became trust fund, the state, and not the treasurer, be

came trustee.

Transferred from Superior Court, Merrimack County; Chamberlin, Judge.

Upon the motion of the plaintiff the court dismissed the action as against the defendant individually. The defendant then moved that it be dismissed as against him as treasurer. This motion was denied, and the defendant excepted. Transferred from the superior court.

Robert W. Upton, of Concord, for plaintiff. James P. Tuttle, Atty. Gen., and Joseph S. Matthews, Asst. Atty. Gen., for defendant.

WALKER, J. [1] As the suit has been dismissed as against the state treasurer in his individual capacity, the question is whether the state, so far as it is represented in this action by the treasurer in his official capacity, may be held liable to respond to the plaintiff's claim. That the state cannot be sued in our courts in the absence of a statute authorizing it, or without its consent, either expressly given or clearly implied, is a proposition requiring little discussion. In fact, it is axiomatic. Cooley, Const. Iims. 23, note; Cunningham v. Railroad, 109 U. S. 446, 451, 3 Sup. Ct. 292, 609, 27 L. Ed. 992; Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842; State v. Kinne, 41 N. H. 238; Opinion of the Justices, 72 N. H. 601, 54 Atl. 950.

[2] No statute has been suggested in argument and none has been found authorizing an action at common law against the state for the recovery of money owed by it to an individual; nor has the Legislature authorized its treasurer to represent the state in litigation of that character, or to disburse its moneys in accordance with a judicial judgment upon the merits. The Constitution (article 55) provides that:

"No moneys shall be issued out of the treasury of this state and disposed of * *but by warrant under the hand of the Governor for the time being, by and with the advice and consent of the council, for the necessary support and defense of this state agreeably to the acts and resolves of the general court." Accordingly the Legislature has provided (P. S. c. 16, § 4) that:

*

The state treasurer "shall pay, out of any moneys not otherwise appropriated, all sums due by virtue of general or special appropriathe executive, and the principal or interest of tions of the Legislature, on warrants drawn by all loans which may at any time become due."

Action by one Bow against J. Wesley Plummer, individually and as State Treasurer. Action dismissed as against defendIt thus appears that, if the defendant deant individually. Motion to dismiss as sired to pay out of the treasury the amount against defendant as treasurer denied, and of the plaintiff's claim, he would be unable defendant excepts. Exceptions sustained. to do so of his own motion. He could only Assumpsit to recover money paid by the draw out the money under an executive warplaintiff to the defendant as state treasurer rant, which presumably would not be given for its share of the state tax for the year except in accordance with a statute author1914 as claimed by the defendant. The izing it. It would therefore be absurd for plaintiff insisted that an error had been the court to give judgment against the decommitted in making the assessment, and fendant in his official capacity which it

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would have no power to enforce and which | state, he did not consent in its behalf that the defendant could not perform. Weston it should be bound by the result of the suit. v. Dane, 53 Me. 372. This result shows clearly that, while the cause of action is against the state, not the treasurer, the action must fail because the state is not a party.

"Although the state, as such, is not made a party defendant, the suit is against one of its officers as treasurer; the relief sought is a judgment against that officer in his official capacity; and that judgment would compel him to pay out of the public funds in the treasury of the state a certain sum of money. Such a judgment would have the same effect as if it were rendered directly against the state for the amount specified in the complaint." Smith v. Reeves, 178 U. S. 436, 438, 439, 20 Sup. Ct. 919, 920 (44 L. Ed. 1140.)

[3] But it is argued that the appearance of the Attorney General amounts to a consent on the part of the state to submit the cause to judicial investigation and judgment. One difficulty with this argument is that it is based on the erroneous assumption that the sovereign or the Legislature has authorized the Attorney General to bind the state by appearing for the defendant in a suit brought against the head of a governmental department. In other words, the attempt is thus made to bind the state as though it were in fact a party defendant in a suit against the treasurer, upon the ground that the cause of action is against the state and because the Attorney General has appeared. But his appearance cannot have that effect when the state has given him no authority to appear for it. The silence of the Legislature upon this subject is equivalent to a prohibition. As the agent of the state the Attorney General could not exceed the limits of his authorization, and bind the state by proceedings in a suit to which it is not a party and could not be made one.

The cases cited in argument by the plaintiff do not sustain the contention that the state has consented to be bound by the judgment or has waived its immunity from suit. When it is held that there has been such a waiver by the Attorney General or by a state official, the decision is based upon a statute having special reference to the subject-matter of the suit and conferring power upon the official to appear for and represent the state (People v. Railway, 157 Mich. 144, 121 N. W. 814; McKeown v. Brown, 167 Iowa, 489, 149 N. W. 593; Gunter v. Railroad, 200 U. S. 273, 26 Sup. Ct. 252, 50 L. Ed. 477) or the state has voluntarily intervened and become a party (Clark v. Barnard, 108 U. S. 436, 446, 2 Sup. Ct. 878, 27 L. Ed. 780).

Whatever doubt may be entertained as to the right of the Attorney General of this state to enter his appearance for the state in suits to which the state is not a party (P. S. c. 17, §4; Laws 1911, c. 190, § 1) and whatever legal effect such an appearance might have, if, as in this case, he only appeared for a state official, and not for the

There is no evidence that he understood he was waiving the rights of the state, and his mere appearance for the treasurer does not have that legal effect. The plaintiff's position practically is that it is entitled to recover from the state treasury the amount of its claim in a suit against a state official, because the law officer of the state has appeared for that official. As well might it be claimed that an attorney by appearing for one against whom no judgment could be rendered consented that it might be rendered against another one of his clients who appeared to be the rightful debtor. As already pointed out, the cause of action is against the state; while the suit is against the treasurer.

[4] But the argument is presented that, as the tax in question was paid to the treasurer under protest, a trust arose upon the money in his hands in favor of the plaintiff for the excessive or illegal payment, and as a consequence that the title to the money did not pass to the state, and that the action is not against the state, but against the treasurer as the custodian of the fund. The result of this theory would seem to be to make the treasurer individually liable as a trustee of the fund, notwithstanding the fact that upon the plaintiff's motion the court dismissed the suit against him as an individual. But his only relation to the action now is that of a state official. Moreover, it is clear that the money was not placed in his hands to be held for the plaintiff, but in the custody of the state through the treasurer as its agent. plaintiff was dealing with the state, not with Mr. Plummer, and it understood that the money would be deposited in the treasury with other public money. If, under the circumstances, it or a part of it became a trust fund the state became the trustee, and since the state is not a party to the action, the court cannot declare the trust, even in an equitable proceeding. Nor can it authorize or direct the treasurer to pay the plaintiff's demand from the state's money. That is exclusively a legislative function.

The

Cases holding that, when a state officer does an act in his official capacity that may be prejudicial to the rights of a private person, and is in violation of the Constitution, he may be individually enjoined (Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, 35 L. Ed. 363) upon the ground that the state is not a necessary party (Cunningham v. Railroad, 109 U. S. 446, 3 Sup. Ct. 292, 609, 27 L. Ed. 992), are not in point. The injury the plaintiff complains of is not some threatened invasion of his rights, but it results from the inability of the treasurer to withdraw the money from the control of the state where the plaintiff was willing The money, even if wrongfully to put it.

received by the defendant, was delivered to him as the agent of the state; it was in fact intrusted to the state (Louisiana v. Jumel, 107 U. S. 711, 722, 723, 2 Sup. Ct. 128, 27 L. Ed. 448); and what the plaintiff now seeks is a return of it, or a part of it, from the state, not from the defendant individually. If under such circumstances it has been held that a defendant, although a party only in his official capacity, was liable individually to repay the money (Scottish Ins. Co. . Herriott, 109 Iowa, 606, 80 N. W. 665, 77 Am. St. Rep. 548), the decision cannot be followed. The language of the court in Smith v. Reeves, supra (178 U. S. 439, 20 Sup. Ct. 920, 44 L. Ed. 1140), in holding under a somewhat similar state of facts that the cause of action was against the state, and that an order for judgment against the treasurer was error, is applicable to the case at bar:

"In the present case the action is not to recover specific moneys in the hands of the state treasurer nor to compel him to perform a plain ministerial duty. It is to enforce the liability of the state to pay a certain amount of money on account of the payment of taxes alleged to have been wrongfully exacted by the state from the plaintiffs. Nor is it a suit to enjoin the defendant from doing some positive or affirmative act to the injury of the plaintiffs in their persons or property, but one in effect to compel the state, through its officer, to perform its promise to return to taxpayers such amount as may be adjudged to have been taken from them under an illegal assessment."

See generally State v. Burke, 33 La. Ann. 498; Seitz v. Messerschmitt, 117 App. Div. 401, 102 N. Y. Supp. 732, approved in 188 N. Y. 587, 81 N. E. 1175; Ex parte Dunn, 8 S. C. 207; State v. Bank, 8 Neb. 218; Troy, etc., Railroad v. Commonwealth, 127 Mass. 43.

Action by Joseph E. Cook against the United Railways & Electric Company of Baltimore, a body corporate. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, STOCKBRIDGE, and CONSTABLE, JJ.

C. R. Wattenscheidt and Laurie H. Riggs, both of Baltimore, for appellant. J. Pembroke Thom, of Baltimore (Walter V. Harrison and Joseph C. France, both of Baltimore, on the brief), for appellee.

STOCKBRIDGE, J. The plaintiff, appellant in this court, brought suit to recover damages from the United Railways & Electric Company of Baltimore for injury to an auto ambulance, occasioned by a collision between the machine while being operated by one of his employés and a street car owned by the defendant and operated by its employés. The ambulance in question was of Cadillac make, Weighing something over two tons.

On the morning of January 21, 1916, the plaintiff had been notified from the University Hospital that there was some one at Union Station to be brought to that hospital, and at the time of the collision the ambulance was on its way to answer that call. It was proceeding north on Cathedral street at a rate variously estimated from 15 to 25 miles per hour, and at the intersection of Cathedral and Biddle streets came in contact with a car of the defendant of the Roland Park line. The morning was wet and the streets slippery, but the ambulance was not at the time equipped with chains to prevent sliding or skidding. The driver in charge of the ambulance saw the car proceeding slowly westward when he was at a distance of from 100

The motion to dismiss the action should to 125 feet south of Biddle street, but conhave been granted.

Exceptions sustained. All concurred.

(132 Md. 553)

tented himself with ringing a large gong upon the ambulance, without seeking to check his speed until he was within 25 feet of the car. He then applied both the foot and the emergency brakes, and attempted to cut across

COOK v. UNITED RYS. & ELECTRIC CO. the path of the car into Brevard street. The

OF BALTIMORE. (No. 53.)

(Court of Appeals of Maryland. April 4, 1918.) 1. STREET RAILROADS 91-COLLISION-ORDINANCE REGULATING TRAFFIC.

In an action by the owner of an auto ambulance for damages to it in a collision with defendant's street car, defendant's failure to observe an ordinance giving a right of way at street intersections to north and south bound travel could not be relied on as creating liability notwithstanding contributory negligence. 2. STREET RAILROADS 103(3)-COLLISIONS -"LAST CLEAR CHANCE" DOCTRINE.

Where an auto ambulance was injured in a collision with a street car because of the contributory negligence of the owner of the auto ambulance or his employés, the last clear chance doctrine is not applicable; such doctrine being applicable only when defendant's negligence is the last negligent act.

effect of this action was to bring him in a line parallel with the car, and he would probably have avoided the collision had not the machine skidded on the wet and slippery street. The condition of the street, the change in direction of the machine, and the sudden application of the brakes acted in combination to produce the result that the rear wheel of the ambulance struck the car about in the center. The ambulance was severely damaged, the repairs to it costing $692.68.

At the conclusion of the plaintiff's case the defendant offered three prayers; the first to the effect that there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and that the verdict of the jury

Appeal from Baltimore City Court; Chas. must be for the defendant. The third asked W. Heuisler, Judge.

the court to instruct the jury that from the

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