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and yet looking to the performance of different things at different times, it may be divisible in its operation;" that an action under it could be maintained for the price of each portfolio when each was delivered, but that the contract is one entire agreement to take one copy of a publication made up of ten parts or portfolios, which together should constitute the Art Treasures of America, and that it is not a contract containing ten distinct and independent agreements to take ten different portfolios, one under each agreement. See Vinton v. King, 4 Allen, 562. The defendant's evidence went to the whole contract, and was offered for the purpose of avoiding the whole contract, and he could only avoid the contract for fraud in its inception, by rescinding it in toto, and by restoring to the plain tiff the portfolios which he already received. If the defendant had a right to avoid the contract, and exercised that right, he had a defense to this action, and could recover, in an action brought by him, the $30 he had paid, and the portfolios would all belong to the defendant; but the defendant could not retain part of the portfolios under the contract and avoid the contract as to the rest. Clark v. Baker, 5 Metc. 452; Morse v. Brackett, 98 Mass. 205; Mansfield v. Trigg, 113 id. 350; Young v. Wakefield, 121 id. 91. It does not follow from this that the defendant is required to receive any portfolios that are not such as the contract calls for, or that if plaintiff did not from time to time offer to the defendant ten portfolios, each of which satisfied the description contained in the contract, the defendant might not recover damages for a breach of the contract by the plaintiff. Mass. Sup. Jud. Ct., Oct. 23, 1886. Barrie v. Earle. Opinion by Field, J.

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ard non-union laborers would lead to such a wanton and fiendish attack as is shown by this record to have been made in a civilized city, and under a government by law, upon a train full of peaceable and orderly passengers. (2) The third instruction given for the appellee told the jury that the appellant could not justify the admission of the non-union laborers into the train "on the ground that the defendant had issued to the foreman of said laborers a ticket on which they were carried on said train." We think that this instruction was calculated, under the circumstances of this case, to make a wrong impression upon the minds of the jury. It seems to intimate that the obligations of the appellant to the laborers would be less binding in a case where their common employer paid for the passage of all of them, and purchased one ticket for them all, than such obligations would be in a case where each laborer paid his own fare and bought his own ticket. We know of no authority, and can see no reason, for any such distinction. Whatever rights and privileges would inure to the benefit of the laborers by reason of their fare being paid, would so inure whether such fare was paid by themselves or by the steel company which employed them. (3) It is contended that if appellant was bound to take the nonunion men on board, it should have provided a sufficient force to protect them against the dangers which were likely to arise under the circumstances. It is true that section 105 of the railroad law of this State provided that conductors of railroad trains "shall be vested with police powers while on duty on their respective trains" (Hurd Rev. Stat. 1883, p. 948); but the object of this provision was merely to clothe such conductors with the authority to keep order among their passengers. This abundantly appears from the language of sections 106 and 107, which authorizes conductors to remove disorderly passengers, and to call on the other employees of the train and the other passengers to aid them in such removal, and which also authorizes a conductor to arrest any person committing a crime on the train. It was never the intention of the statute to require railroad companies to carry a force large enough to repel the attack of an outside mob. In this case the testimony tends to show that the strikers who made the attack consisted of between one hundred and two hundred men. The officers in control of the train were unable to do any thing against such a force, and were overpowered. The duty of protecting the citizens of the state against so large a body of rioters as is here referred to rests upon the civil authorities and not upon the railroad corporations. To impose such a duty upon the latter would be to clothe them with a part of the functions of the government itself. Pittsburg, Ft. W. & C. R. Co. v. Hinds, 53 Penn. St. 512; Simmons v. New Bedford, V. & N. S. B. Co., 97 Mass. 361; Rorer Railr. 1005; Shear & R. Neg., § 2876. Ill. Sup. Ct., Nov. 29, 1886. Chicago & A. R. Co. v. Pillsbury. Opinion by Magruder, J. CONTRACT-ENTIRE CONTRACT-SUBSCRIPTION FOR "IN TEN PORTFOLIOS "-PART PERFORMANCE. A contract to "subscribe for one copy of the Art Treasures of America, in ten portfolios, at $15 each, as published," is an entire contract, and where the defendant has accepted two of the portfolios, but refused to take the remainder, in an action against him for the breach of his contract, evidence offered by him for the purpose of avoiding the whole contract is inadmissible, unless he restores the portfolios already received, and rescinds the contract in toto. A majority of the court think that this is such a contract as is described in Badger v. Titcomb, 15 Pick. 409, 413, where "although the agreement is entire, the performance is several;" or, as said in Denny v. Williams, 5 Allen, 1, 4, a contract "one and entire in its origin, A person was indicted under the act prohibiting the

PUBLICATION

CONVERSION POST-OFFICE ORDER PAYMENT THROUGH BANKER-MISAPPROPRIATION BY PAYEE'S AGENT--BANKER'S LIABILITY.-Plaintiff's employed a secretary, whose duty it was to open letters and receive money and pay the money received in to plaintiff's account at defendants' bank. The secretary had a private account at defendants' bank, but it was not shown that plaintiffs knew that he had. He received post-office orders sent to plaintiffs, fraudulently paid them in to his private account, and appropriated the proceeds. By a regulation of the postoffice the signature of the payee was not required to the receipt on an order presented for payment through a banker. Plaintiffs sued defendants to recover the value of the orders misappropriated by the secretary. Held, that as the secretary had authority only to pay the orders in to plaintiffs' account, defendants were guilty of a conversion in receiving the orders for the secretary and paying the proceeds to his private account; that the post-office regulation had not the effect of making the orders negotiable instruments, so as to pass by delivery; that there was nothing in plaintiff's conduct which would estop them from asserting their legal claim to the proceeds of the orders, and therefore plaintiffs were entitled to recover. Eng. Ct. App., Aug. 9, 1886. Fine Art So. v. Union Bank of London. Opinion by Esher, M. R., Bowen and Fry, L. JJ.

CRIMINAL LAW-ABORTION-MURDER-DYING DECLARATION.-On a trial•for murder perpetrated by unlawfully causing.and producing.a miscarriage of a preg

nant woman, where the evidence shows that a woman was informed by a physician that she could not recover, and must soon die, and declared her belief of her approaching death, her statements, made under such circumstances, are rightly admitted as dying declarations. Iowa Sup. Ct., Dec. 2, 1886. State v. Leeper. Opinion by Beck, J.

"WILLFULLY AND MALICIOUSLY "-INTENT.

'willfully and maliciously" tearing down of a sheriff's advertisement. Held, that the defendant had the right to show that he tore down such paper without any evil design. The word "maliciously," when used in the definition of a statutory crime, the act forbidden being merely malum prohibitum, has almost always the effect of making a bad intent or evil mind a constituent of the offense. The whole doctrine of that large class of offenses falling under the general denomination of "malicious mischief" is founded on this theory. For example, it was declared by the Supreme Court of Massachusetts, in the case of Com. v. Walden, 3 Cush. 558, that the word "maliciously," as used in the statute relating to malicious mischief, was not sufficiently defined as "the willfully doing of any act prohibited by law, and for which the defendant has no lawful excuse," but that to the contrary, in order to justify a conviction under the act referred to, the jury must be satisfied that the injury was done either out of a spirit of wanton cruelty or of wicked revenge. And even the word "willfully," in the ordinary sense in which it is used in statutes, was said by Chief Justice Shaw to mean, not merely "voluntarily," but to imply the doing of the act with a bad purpose. Com. v. Kneeland, 20 Pick. 220. This same signification of the term "willful" was adopted in this court in the case of State v. Clark, 29 N. J. L. 36. The charge being that the defendant, in the language of the statute, willfully destroyed a fence on the land in the possession of another, the defendant was permitted to show that he did the act under claim of title to the premises. When a statute prohibits on act if done intentionally, to such inhibition, any words being added indicating that to render the forbidden act criminal it must be the product of an evil mind, it becomes a pure question of statutory construction whether or not the animus of the person inculpated was anelement of the crime. This was the rule adopted in the Court of Errors in the case of Halsted v. State, 41 N. J. L. 552, and exemplified in the case of Cutter v. State, 36 id. 125; in the latter case the court deciding that the mens rea was an ingredient of the statutory offense, although the legislative language was simply prohibitive of the act described. And indeed if in the present instance the word "maliciously" were not found in this act, it would seem to be the rational conclusion, from the nature of the thing prohibited, that it could not have been the intention of the law-maker to punish the taking down of one of these advertisements irrespectively of the good or evil design or purpose of the person doing the act; for it would appear to be signally absurd to suppose that the owner of property could not remove one of these notices from the door of his dwelling if the officer chose to put it there, or from a wall which he wished to repair, without committing an indictable offense. N. J. Sup. Ct., Nov. 17, 1886. Folwell v. State. Opinion by Beasley, C. J.

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MURDER-MANSLAUGHTER SUFFICIENCY OF EVIDENCE. On the trial of an indictment for murder the accused, a laborer in a coal mine, unmarried, lived in a house near the mine, and the deceased, an orphan. boy about ten years old, lived with him. The boy had been in the habit of running away, and was disobedient. The defendant, who stood in relation of parent to the boy, used to punish him sometimes with a switch, but not excessively, and sometimes by putting him in a grain sack with one or two holes in it, and tying him in it. He put him in this sack in the month of July, 1885, and deposited him near the house tied up in the sack. Some of defendant's acquaintances came to defendant's house, and engaged with him in drinking. The boy was allowed to remain in the sack for several hours, and when attention was

given to the matter he was found to be dead. There were some wounds and bruises on his person, but not such as would be likely to produce death, and there was no evidence tending to show how or by whom the wounds were inflicted. The defendant was shown to be a man of peaceable and quiet disposition. Held, the evidence was insufficient to support a verdict of murder in the first degree, and such verdict should be modified to a verdict of manslaughter. Iowa Sup. Ct., Dec. 8, 1886. State v.Fields. Opinion by Rothrock, J.

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CHARACTER OF INTOXICATING LIQUOR-SALE TO MINORS-"BEER."- - Upon an indictment under the statute for a sale of intoxicating liquor to minors, the intoxicating character of the liquor must be shown. It was not enough for the people to prove merely that the defendand sold "beer" to a minor, because section 6 of the dram-shop act was only violated by a sale of intoxocating liquors, and what is included in and known as "beer" is not necessarily an intoxicating liquor. In Webster's Unabridged Dictionary we find the following definition of the word "beer:" (1) A fermented liquor made from any malted grain, with hops and other bitter flavoring matters. (2) A fermented extract of the roots and other parts of various plants; as spruce, ginger, sassafras, etc. Beer has different names, as 'small beer,' ale, porter, brown stout, lager-beer, etc., according to its strength or other qualities." From the definition of the word 'beer" given, can it be said that the article purchased was an intoxicating liquor? Suppose the "beer" purchased was made of spruce, ginger or sassafras, according to the definition of Webster, it would have been beer, and yet not an intoxicating liquor, and the statute would not have been violated by its sale. The fact is beyond dispute that there are different kinds of beer; some are intoxicating, others not. Whether beer which may be sold in a given case is malt or intoxicating beer, or ginger or root beer, or some other of the vinous kinds of beer which are known not to be intoxicating, is always a question of fact to be determined from the evidence introduced on the trial. Our statute does not prohibit the sale of beer. If it did, it would be sufficient for the prosecution to prove a sale of beer, and rest, as was done in this case. But unless the language is to be disregarded, the statute prohibits sale of intoxicating liquor; and when beer has been sold, it is necessary to show by the evidence that the article sold falls within the requirements of the statute: otherwise a conviction cannot be sustained. Had the proof been that the beer was intoxicating, as held in Godfreidson v. People, 88 Ill. 284, or that it was lager-beer, as ruled in Bandalow v. People, 90 id. 218, the instruction would have been proper, and the conviction right; but such was not the case. The following authorities are in point on the question involved: Lathrop v. State, 50 Ind. 555; Klare v. State, 43 id. 485; State v. Chappel, 116 Mass. 7; Com. v. Blos, id. 56; State v. Starr, 67 Me. 242; State v. Wall, 34 id. 165; State v. Biddle, 54 N. H. 379; Kurs v. State, 79 Ind. 488. In the case last cited, under an indictment which charged the defendant unlawfully gave to a person under the age of twenty-one years intoxicating liquor, where the gift was proven to be "beer," quoting from a former case, the court said: "Beer may be, but is not necessarily, a malt liquor, and may not be intoxicating. It devolves on the State therefore to prove that the beer sold was either a malt liquor, or that it was in fact intoxicating liquor. Neither of these facts could be presumed or judicially recognized." The other cases cited will also, upon examination, be found to be in harmony with the views we have expressed. The rule here indicated imposes no hardship upon the prosecution. If the beer sold in this case was malt or intoxicating liquor, that fact

might have been proven by a single question propounded to the witness on the stand. Ill. Sup. Ct., Nov. 13, 1886. Hausberg v. People. Opinion by Craig, J. Scott, C. J., and Sheldon, J., dissenting.

THE RETIREMENT OF JUDGE MILLER.

THE

THE retirement of Judge Miller from the Court of Appeals of this State, on account of the limitation of age, was the occasion of the following correspondence:

COURT OF APPEALS, Dec. 31, 1886.

The Hon. Theodore Miller-DEAR JUDGE: Your associates upon the bench of the Court of Appeals cannot part with you at the close of your long and useful service without assuring you of their regret at the inevitable separation, and of their appreciation of the legal ability and unflagging industry with which your duties have been performed. We have found you always ready and prompt in bearing your share of the common burden, courageous and conscientious in forming your own opinions and listening patiently and determining wisely where conclusions differed. We have seen you persisting in your work when health was threatened by the unending pressure and strain, and when we thought that you, equally with ourselves, would be better for a needed rest, and we have learned to admire the patient determination which enabled you to do your work thoroughly and accurately in spite of the obstacles interposed. You retire at the close of this year, having completed a longer term of judicial service than that of any judge now upon the bench in this State, with perhaps a single exception. The records of the court show the multitude and difficulty of the questions upon which you have been required to express its ultimate opinion or contend manfully for your own, and testify to the completeness and range of your learning, the patience of your investigations, the unswerving honesty of your judgment and the ability and accuracy with which your conclusions have been reached and then expressed. You will carry with you into your retirement our respect and strong regard, and our earnest wishes that the closing years of your life may be contented and prosperous and happy.

Faithfully, your associates and friends, WILLIAM C. RUGER, CHARLES ANDREWS, CHAS. A. RAPALLO, FRANCIS M. FINCH.

GEO. F. DANFORTH,

ROBERT EARL,

HUDSON, Jan. 5, 1887.

My Late Associates of the Court of Appeals: Your very kind communication arouses the deepest feelings in my heart, and I value, beyond expression, its words of commendation and regard. I cordially reciprocate the sentiment it contains, and I greatly prize the high estimate you have placed upon my services as a member of your court. I have been sustained by the unwearied and patient toil of my associates, and their wise counsels and cheering words have imparted renewed strength and vigor and contributed greatly to aid my efforts. Too much vigilance cannot be exercised in a court of last resort in the disposition of the important and varied interests involved. The questions are generally intricate and difficult, imperatively demaud the closest attention and examination and the most deliberate consideration. They have received all this at your hands. No judges could have been more faithful and just in the performance of their official functions. My brethren and associates, in the past, I need not assure you that it is with emotions not unmingled with regret, that I break up the agreeable associations of many years and relinquish a field of labor which is suited to my taste and habits, and to

which the best portion of my life has been devoted, to seek elsewhere new sources of comfort and enjoyment. In retiring from the Court of Appeals I shall cherish with grateful recollections the harmonious relations that at all times existed among its members, their mutual confidence and respect, the affectionate and friendly feelings manifested, and the courtesy which has so strongly marked our intercourse with each other, and which has lifted us far above the strife of partisanship or a mere desire to enforce individual views. It will always be a pleasure to recall my years of toil in your court. I shall take deep interest in its future decisions and shall remember with satisfaction my association with its members. With the highest regard, I remain

Very sincerely your friend,

THEODORE MILLER.

The bar of this State will heartily concur in the sentiments of the letter to Judge Miller from his late associates. This venerable and learned judge has given to our State twenty-five years of most useful service aud has literally worn himself out physically in the performance of his duties, which for several years have been performed only at the expense of suffering and deprivation. Very few judges in the history of the State have rendered so much and such intelligent service; none have been more modest, more candid, more patient, or more generally right. He will carry with him the good wishes and gratitude of the bar. We wish that he might relieve the irksomeness of his retirement by the payment of the only debt which he owes his profession-a book, either of the law, or of professional reminiscences with which his memory is amply stored.

STATE BAR ASSOCIATION.

ROOMS OF STATE BAR ASSOCIATION,
CAPITOL, ALBANY, N. Y.,
January 27, 1887.

At a meeting of the Executive Committee of the New York State Bar Association, held at the office of Moak & Buchanan, in the city of Albany, January 17, 1887, the recording secretary was, by resolution, requested to publish the following notice in the ALBANY LAW JOURNAL:

"Members of the New York State Bar Association having papers to serve in the city of Albany, or business in the Executive Chamber, or any of the different departments in the Capitol, with the clerk of the Court of Appeals or Supreme Court, or any ex parte business in any of the courts of Albany, will have it promptly attended to by addressing the said secretary."

THEA

L. B. PROCTOR,

Recording Secretary,

Capitol, Albany, N. Y.

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, Jan, 25, 1887:

Appeal dismissed with costs-In re Application of Allen Campbell, commissioner of public works, etc.

-Order affirmed with costs-Alonzo Bradner and another, executors, etc., v. Lauren E. Woodruff, and others, trustee, ett-order Airmed with costs Charles DeGraff and others, respondents, v. Patrick H. Cummings, appellant.-Order affirmed-People v. Bank of Danville; In re Petition of George Enger and others.Order affirmed with costs-George C.

Carter, respondent, v. Emily P. Beckwith, administratrix, etc., and others, appellants.-Order affirmed with costs of appeal in this court to be paid by appellant to respondent's attorney-Sarah J. Creshall, appellant, v. Catharine Mullin and others, respondents. Appeal dismissed with costs-Estelle D. Bowers, respondent, v. Fred C. Durant and others, appellants. -Motion for reargument; appeal denied without costs-Conner v. Duber.-Motion for reargument denied with $10 costs-Derlet v. DeGraff.- -Motion to dismiss; denied with $10 costs-Elgin v. City of Troy.-Motion to dismiss; denied with costs-Hong Kong Baking Company v. Cooper.-Motion to dismiss appeal granted with costs, unless the appellant shall procure from the next General Term a modification of the order of reversal, for which purpose the return may be remitted to that court, and without prejudice, in case of such modification, to the right of the respondent to renew or repeat his motion for dismissal-People, appellant, v. Michael Kurtz, respondent. Motion to dismiss; denied with $10 costsKelsey v. Sargent.-Motion to correct return; denied with $10 costs-Slates v. Cromwell.-Motion to advance and prefer; granted without costs-People, ex rel. Houghton, v. Andrews.-Motion of public administrator granted; that of respondent to put cause on the calendar as of date of the original return also granted. Motion otherwise denied-Vilas v. Page. Motion to put on calender and prefer; denied with $10 costs-Collyer v. Collyer.

NOTES.

It has been judicially decided that it is not cruelty, authorizing a divorce, that a woman will not "flop.' In a recent Iowa case a husband sued for divorce on the ground that his wife would not kneel when he prayed. The court said this would hardly an

swer.

with petitions for pardon or commutation of sentence.
By this time some two years will have elapsed since
the arrest of the criminals, affording opportunity for
public indignation to subside. The governor may be
led to believe he can score a point for himself by yield-
ing. If he happen to be obdurate, the criminals will
go to prison, and there await the inauguration of a new
State administration. Then another batch of peti-
tions will go to the executive chamber, borne by paid
lawyers who will have as auxiliaries a lot of goody-
goody old women of both sexes, pleading that the con-
victs are penitent, and have suffered enough to expiate
their villainy. Finally the scoundrels will come out
of durance to be feasted and made much of generally
until they take a notion to perpetrate some fresh
atrocity and bring about them a second set of admir-
ing ruffians and philanthropic grannies, backed by hair-
splitting lawyers, complaisant judges, and a lenient
chief magistrate. *
Not one offender out of
ten comes to final grief. If an arrest is made the
chances are as six to one that he will never be tried,
eight to one that he will escape conviction, sixteen to
one that he will not be punished. And the more atro-
cious the offense committed the greater the chances of
immunity.
* Murderers, instead of being
hanged, are sent to State prison ostensibly for life, but
the average duration of life terms is only about ten
years.-Troy Times.

**

* *

INTUITION V. LAW.-Thin walls have their advantages. A law student, who married during this, his last year in the law school, has a room next to mine, and he has occasional fits of trying to train his wife's mind. The other night he seemed to be vigorously at work on what I conjectured to be some problems in pleading. His wife was in the room. He: "Well,

what does this mean? Contract. Plead in abatement that plaintiff was a feme covert. Issue joined, and verdict for plaintiff. Judgment for whom and what?' The man is crazy!" She: "Why, dear, what's the matter; let me look at it. Oh! Contract. Plea in abatement! What does that mean, dear?" "It means that." "Yes; but what does femy covert mean, first?" "Feme, that means a married woman." "Oh, what a horrid name-how disgusting! What do they call them that for? Now, they pleaded thatthat it was all to stop, did they? Why don't you go on and explain, dear?" "Well, for example, say there was a woman who had agreed to have Jones build a house for her, and had paid him something, and Jones didn't build it. So she sued Jones. Jones

pleaded in abatement-" "Yes, dear, I see. Go

MOCKERY OF JUSTICE.—It adds to the excitement of living in San Francisco that the cable car on which you go home to supper may at any time run over a dynamite cartridge. Two of the cartridges went off on Thursday evening, and one did serious damage. The same incident has occurred several times before within a month. Such outrages are vexatious, and must irritate the San Franciscans, but the dynamite Scoundrels will get caught in the end, and then -Rochester Union. Well, what then? Sympathizing friends will probably appear and give bail for the ap-right on." "That she was a married woman, and pearance of the culprits when wanted. Possibly a grand jury will indict them some months latter. Then if the incriminating evidence is known to be strong, the ringleaders will find means of indemnifying their bondsmen and abscond. Or perhaps the chief witness will be spirited away. When the cases are called for trial counsel will say they are not prepared, and persuade an obliging judge to grant a postponement. This is likely to happen two or three times. At the end of a year or so the trial will come on. If a jury be secured the few witnesses remaining will testify. The judge will deliver a milk-and-water charge. A disagreement of the jury may then be expected. If a verdict be found, look out for one of acquittal. In the event of a conviction, errors on the trial or in the judge's charge will be alleged as affording ground for an appeal and a reopening of the case. The appellate court is likely to order a new trial, and all the previous proceedings will be rehearsed. If another conviction be secured a second appeal is likely to follow. Should that fail, the governor will be overwhelmed

66 couldn't sue him." 'Why not; I'd like to know?" "Oh, that was the common law. He said she couldn't sue him, and that the case ought to stop." "I see; and then, issue joined,' does that mean the children, dear, did-" "My Scotts!" "What is the matter? Did they come into the contest and defend their mother?" "That means that-well, that issue was joined; that they fought it out on that line-that they brought in their witnesses and argued it before the jury and decided it; it says verdict for the plaintiff!" "Well, dear, excuse me, I thought the children came in. So they decided the woman could have the house? I'm glad of that? Judgment for whom and what?' why don't you just tell him the woman got her house?" "There wasn't any house; I made that up." "So you did, dear; you are so smart! Well, you can just write him a little story about it- I know he'll like it. Don't you think I had better sit on your lap, dear, while you explain some more?" And the conversation at that point became unintelligible. J. E. W.

The Albany Law Journal.

A

and especially in revenge for an act which is not

Journal. condemned by the criminal law, is an extremely

ALBANY, FEBRUARY 5, 1887.

CURRENT TOPICS.

A

unprincipled proposition, abhorrent both to law and to morals. It would perhaps be better to punish such homicides in the way proposed rather than not at all, as is the present practical result, but the right thing to do would be to constitute adultery and seduction crimes, and then hang people who BILL has been introduced in the Assembly take the law into their own hands. These avengers of this State to substitute imprisonment for are almost always the men who are quite apt to life for capital punishment in the case of women. poach on their neighbors' domains, just as lynchers No reason can be given for such a change, except are usually composed of the baser sort. The right the gratification of a puling sentimentality. way to deal with the Sickles, Coles and MacFarwoman who is wicked enough to commit murder de- lands is to let them have the satisfaction of inflictserves no favor on account of her sex. God's lawing their private revenges, and then inflict public made no exception, and to be more merciful than justice on them. We would have no distinctions God would be an error of judgment. It is said by of the law here, either. the sentimentalists and the women's right folk that women ought not to be put to death because they have no voice in the making of the laws. The same reasoning would relieve them from any punishment whatever in any case, and it would apply to males under twenty-one years of age. If hanging is a repulsive and indecent death for women, provide a more humane and decent mode for them, or better still, for all capital criminals. But so long as murder is a capital offense let us have it inexorably enforced without distinctions. Those who believe that the abolition of capital punishment would result in the increase of murders must certainly concede that such would be the effect if the capital penalty were abolished as to women alone. We are by no means certain that such would be the effect if the penalty of imprisonment could be administered without hope of commutation or pardon, but human ingenuity cannot devise any sound reason for arguing that a woman should not be subject to the same degree of punishment as a man for the like offense. Those who argue for the equality of the sexes should concede an equality of punishment if they claim an equality of privilege.

The proposed bill however is one degree less absurd than one proposed in the Illinois Legislature. The Argus says: "A bill is to be brought before the Illinois Legislature, which, although apparently correct in principle, is exceedingly dangerous to society in general. It is that when a seducer is killed by a near relative of the woman he has betrayed, the offense shall be only considered a misdemeanor. A similar bill is before the Indiana Legislature. While a seducer should be punished for his crime, it is safer to leave the question of punishment in the hands of the law. If individuals are authorized to take up the role of avenger and have power over life and death, the very fundamental principle of law and order is violated. Besides, many innocent persons might be made victims of mistakes by the clever misrepresentations of the real culprits." We agree to all of this except the assertion that the proposition is "apparently correct in principle." To mitigate or excuse murder on the ground that it is committed in revenge, VOL. 35 No. 6.

|

Another bill introduced in the Assembly of this State proposes, we believe, to abolish the limit of $5,000 as the recovery in actions for death of persons caused by negligence. It does seem rather absurd to say that a man may recover any amount of probable damage for a temporary injury, but that for a fatal injury, resulting perhaps in distress and poverty, sometimes ruin to his family, they shall not have more than $5,000. Perhaps in consideration of the known partiality of jurors in such cases, and their known hostility to railroads, and their known prejudice against wealthy manufacturers, it might be wise to fix some limit, say $10,000; but we are by no means confident that it would be just to do that. Why should any leniency be shown, it that rather a good reason for severity? But ceris asked, simply because the injury is fatal? Is not tainly the limit of $5,000 is preposterously small, and there should be some modification. The only possible argument against the change is that it will who thrive on contingent fees in this sort of busiincrease the gains of a set of speculative lawyers ness. Why would it not be a good plan to make such recoveries, beyond a fixed reasonable amount, exempt from claims for counsel fees, as is the case in pensions? At the same time, give counsel a reasonable lien for fees.

Our profession are notoriously fond of biography, especially of legal biography, and have always bought with avidity even the poorest clap-trap traditional stories of the bench and bar. The "Life of Emory A. Storrs, his wit and eloquence, as shown in a notable literary, political and forensic career, by Isaac E. Adams," is the latest and not the least meritorious of legal biographies. The subject was one of the most brilliant and famous lawyers and orators of the middle west, a native of this State. It is a mistake of his biographer and his admirers to try to elevate him to the plane of Erskine and Choate, and shall we be believed?- to that of Burke. He was an extraordinarily clever rather than a great man and lawyer. He had remarkable wit, sense, tact, power; the art of persuasion; a most admirable diction, affluent but not diffuse;

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