May till October with a thousand causes unheard, and the Chicago Legal News echoes the complaint, calls it "a disgrace," and adds: "No new court would be tolerated with such a practice, and this practice is only allowed because the court is rusty with age, and it has existed for so many years. The judges of the Supreme Court are no better than the president of the United States. What would be said of President Cleveland if he should issue an executive order that the doors of the executive office would be closed till October? We should hear talk of his impeachment at the next session of Congress. Remove the dust of ages from the practice of the court, and let it continue its work as the president and heads of departments do. The interests of the people demand it, and if they cannot comply, the judges who are unable to properly attend to their duties should resign. It grieves us that we should not be able to defend our court from a foreign censure, but truth will not permit it." This is a very foolish censure, born of excusable ignorance on the part of the "foreign" censurer, and of inexcusable forgetfulness on the part of our esteemed contemporary. The judges are not loafing from May till October, but much of the time they are holding circuits, as required by the law of the land. They ought not to be so required to do, and they should be at liberty to continue their proper court for two or three months longer, but it is not their fault. We take it for granted that much of their vacation is occupied in examining cases held over and in writing opinions. Their session is continuous from October to May, except that they do not sit in February. Our Court of Appeals on the other hand adjourns every few weeks for two or three weeks, and sits not at all in July and August. There is a limit to human capacity and endurance, and the judges of both these courts work up to it.

We publish in another column some comments by the Central Law Journal on the "pool bill," which show that we have a very respectable indorser of our notions on the subject. The Central speaks of the Legislature's leaning to virtue's side for seven months of the twelve, but it reminds readers that these are not good horse-racing months. If the Legislature had legalized the felony during the seven months and denounced it during the five, we should have thought better of it. But then the State would have made no profits out of the gambling business. By the way, why not make the State a partner in the Wall street stock-gambling?

Another book from the mill of Mr. Austin Abbott, which grinds not slowly but exceedingly fine. This time it is a "New Practice and Forms," adapted to the codes of procedure. Mr. Abbott originally produced the best work on the subject of pleadings and forms, and he has constantly improved it in the various editions. We now have the first volume, to be followed shortly by another now in press, of practice and forms exclusive of pleadings. The author describes the various steps in an action from

first to last, and accompanies each step by its appropriate forms, and comments on the pertinent decisions. It is a pleasure to have the opportunity of commending so useful and so conscientious a book, the result of years of patient study, reflection and experience. Our profession owe a great deal to Mr. Abbott, who has been willing to devote himself to such helpful service. When some one asked Turner, the great painter, what he mixed his colors with, he replied, "with brains!" So Mr. Abbott puts brains, and not only brains, but work of the severest sort into all his books. The result is that they have become indispensable. This work is published in very acceptable form by Baker, Voorhis & Co., of New York.

NOTES OF CASES.

N Bigelow v. Shaw, Michigan Supreme Court, April 14, 1887, it was held that the owner of the soil under a mill-dam constructed across a running stream may cut and remove ice formed on the surface of the dam, if he does not thereby diminish the flow of water, or otherwise injure the proprietor of the water-power by so doing. The court said: "We think the circuit judge was right in his conclusion of law that the ice belonged to the plaintiff. Shankwiler and Garling, in acquiring title under the mortgage to the Albion College Endowment Fund Company, did not obtain any title in the land flowed, or in the water itself, but a mere right to raise the water to a certain head at the flume, and thereby overflow the land. While the proprietor of the soil thus overflowed could not draw this water off by drains or canals, so as to injure the use of the same by the mill-owners, he would have beyond question the right to use it for watering his cattle, or irrigating his lands for domestic purposes, and for any reasonable profit or advantage which did not, in a perceptible and substantial degree, impair the operation of the flouring mill. And the almost uniform authority is that he may take and carry away the water, when formed into ice, provided he does not thereby appreciably diminish the head of water at the dam of the mill-owner. Cummings v. Barrett, 10 Cush. 186; Ham v. Salem, 100 Mass. 350; State v. Potmeyer, 33 Ind. 402; S. C., 5 Am. Rep. 224; Edgerton v. Huff, 26 Ind. 36; Julien v. Woodsmall, 82 Ind. 568; Brookville and Metamora Hydraulic Co. v. Butler, 91 Ind. 134; S. C., 46 Am. Rep. 580; Paine v. Woods, 108 Mass. 160; Stevens v. Kelley (Me.), 6 Atl. Rep. 868. The owner of the soil under the water is ordinarily the sole and exclusive owner of the ice forming upon such water. And this is not confined to ponds, forming or being entirely upon a person's premises, but his riparian ownership of the bed of the stream will carry with it the right to the ice forming upon the surface of such stream, as far as his riparian right to the soil extends. Lorman v. Benson, 8 Mich. 18; People's Ice Co. v. The Excelsior, 44 Mich. 229; S. C., 38 Am ̧ Rep. 246; Washington Ice Co. v. Shortall, 101 Ill. 46;

S. C., 40 Am. Rep. 196; Village of Brooklyn v. Smith, 104 Ill. 429; S. C., 44 Am. Rep. 90. And in all the reported cases I can find, except two, it is expressly held, in a case like the one at bar, that the land-owner has the exclusive right to the ice, and to gather and sell it for his own benefit, provided he does not thereby impair to a perceptible and substantial extent the flow of water for mill purposes, and that the mill-owner has no right whatever to such ice. This right results from and grows out of the title to the bed of the stream, and such use of the water as results therefrom. Stevens v. Kelley, 6 Atl. Rep. 868; Gould Waters, § 191; Paine v. Woods, 106 Mass. 160-172; Brookville and Metamora Hydraulic Co. v. Butler, 91 Ind. 134; S. C., 46 Am. Rep. 580; Dodge v. Berry, 26 Hun, 246; Marshall v. Peters, 12 How. Pr. 218; Washington Ice Co. v. Shortall, 101 Ill. 46; S. C., 40 Am. Rep. 190. In Mill River, etc., Manuf'g Co. v. Smith, 34 Conn. 462, the court held that the mill-owner had an interest in the ice, and a right to have it remain where it was, upon the ground that removing it would injure the mill-owner by lessenidg his supply of water, but the court did not hold that the mill-owner had any right to remove and sell the ice himself. In this case we have a positive finding of the circuit judge that the removal of this ice did not 'decrease the capacity of the mill-pond to furnish power to run said mill, and was no injury to said water-power.' There is one other case that holds that the ice is the property of the owner of the easement to flow. Myer v. Whitaker, 5 Abb. (N. C.) 172. It is however the decision of a single judge, and the reasoning is not satisfactory. It was considered and disapproved in the same State in Dodge v. Berry, 26 Hun, 246. In the case of Wood v. Fowler, 26 Kans. 682; S. C., 40 Am. Rep. 330, the court held, in opposition to the rule prevailing in this State, that upon navigable streams the title of the riparian owner of the soil was limited to the bank of the stream, and that therefore the ice forming upon such streams belonged to the general public, or the State as the representative of that public; but the court recognizes the doctrine that upon a stream not navigable, the ice would be the property of the riparian owner of the bed of the stream. It is contended by the counsel for the defendant that this court held in Higgins v. Kusterer, 41 Mich. 318; S. C., 32 Am. Rep. 160, that ice was personal property, and belonged to the possessor of the water, and that in the case before us the possession of the water where this ice was cut was in Shankwiler and Garling; that they could control this overflow at will, and without such overflow no ice could be produced. In other words, they had the right to flow these premises and form thereby a pond thereon, but they were not obliged to do so. They could, if they saw fit, draw off the water to the natural bed and limit of Ryan Creek, as it was before said dam was built, and prevent the plaintiff from gathering ice by removing the water upon which it must form; and having the right to move and control the water at their pleasure, they have the exclusive

possession of it to all intents and purposes, which carries the ownership of the ice, as the counsel claims, from the language of the opinion in Higgins v. Kustører." To the same effect, Stevens v. Kelley, 78 Me. 445; S. C., 57 Am. Rep. 813.

ture.

In Roche v. Brooklyn City & N. R. Co., New York Court of Appeals, April 19, 1887, an action against a railroad company for damages for personal injuries, testimony of a third party that the plaintiff, some days after the accident, stated that she was then suffering pain in her arm, is inadmissible to corroborate evidence as to the injury and its extent. Peckham, J., said: "Prior to the time when parties were allowed to be witnesses, the rule in this class of cases permitted evidence of this naCaldwell v. Murphy, 11 N. Y. 416; Werely v. Persons, 28 id. 344. These cases show that the evidence was not confined to the time of the injury, or to mere exclamations of pain. The admissibility of the evidence was put, in the opinion of Judge Denio, in 11 N. Y. supra, upon the necessity of the case, as being the only means by which the condition of the sufferer as to enduring pain could, in many instances be proved. Substantially the same class of evidence was admitted in England, and for the same reason. See cases cited in 11 N. Y. In Massachusetts too the same rule was applied. Bacon v. Charlton, 7 Cush. 581, cited and approved in Roosa v. Boston Loan Co., 132 Mass. 439. After the adoption of the amendment to the Code, permitting parties to be witnesses, the question under discussion was somewhat mooted in Reed v. Railroad, 45 N. Y. 574, by Allen, J., in the course of his opinion, although the precise point was not before the court. The question there under discussion was as to the correctness of permitting the plaintiff to prove his declarations made at the time he was doing some work, to a third person, as to the state of his health. That is not exactly like the case of complaints, made, not as to a state of health, but as to a then present existing pain at the very spot alleged to have sustained injury, and proved so by other evidence; still the remarks of Judge Allen, on this kind of evidence in general, bear strictly upon the matter herein discussed. He reviewed in his opinion some of the above cases and others, and claimed that the courts had admitted the evidence from the necessity of the case, as being the only method by which the condition of the party could be shown fully and completely, not only as to appearances, but also as to suffering. But there was no agreement by the court upon that branch of the case, the judgment going upon another ground. The case of Hagenlocher v. Brooklyn Railroad, 99 N. Y. 136, decides that even since the Code, evidence of exclamations indicative of pain made by the party injured is admissible. The case does not confine proof of these exclamations to the time of the injury. The question was asked of the plaintiff's mother: How long after injury was your daughter confined in the bed? Answer. She was for about four weeks. Question. What ex

MARRIAGE-WHAT CONSTITUTES-POWER OF LEGISLATURE TO REGULATE.

SUPREME COURT OF KANSAS, MARCH 4, 1887.

STATE V. WALKER.*

The mutual present assent to immediate marriage, by persons capable of assuming that relation, is sufficient to constitute marriage at common law; and in Kansas the Legislature has full power, not to prohibit, but to prescribe reasonable regulations relating to marriage, and prescribes penalties against those who solemnize or contract marriage contrary to statutory command. Punishment may be inflicted upon those who enter the marriage relation in disregard of the prescribed statutory requirements, without rendering the marriage itself void. Under section 12 of the marriage act, all persons who enter the marriage relation, and live together as man and wife. without complying with the conditions and regulations of the act, are guilty of a misdemeanor, and subject to the punishment imposed by that section.

APPEAL from Jefferson county.

E. C. Walker and Lillian Harman were prosecuted in the District Court of Jefferson county for a violation of section 12 of the marriage act, which reads as follows: "That any persons, living together as man and wife, within this State, without being married, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum of not less than $500, nor more than one $1,000, or be imprisoned in the county jail not less than thirty days, nor more than three months." Comp. Laws, 1879, p. 539. At the trial, which was had with a jury, Moses Harman, the father of Lillian Harman, testified that on September 19, 1886, his daughter, Lillian, and E. C. Walker entered into what he called an "autonomistic marriage," at his home, in the presence of himself and two other persons. On that occasion, a statement concerning the compact or union about to be entered into was read by the witness, then followed a statement made by E. C. Walker, which was responded to by Lillian Harman, and the ceremony was terminated by another short statement from the witness. The statements were published in the Lucifer, a newspaper edited by the witness, and the account there given was read in evidence, and is as follows:

"AUTONOMISTIC MARRIAGE PRACTICALIZED. "While distinctly denying the right of any citizen or citizens, whether minority or majority, to inquire into our private affairs, or to dictate to us as to the manner in which we shall discharge our private duties and obligations to each other, we wish it understood that we are not afraid nor ashamed to let the world know the nature of the civil compact entered into between Lillian Harman and Edwin C. Walker, at the home of the senior editor of Lucifer,' on Sunday, the nineteenth of September, 1886, of the common calendar. As our answer then to the many questions in regard thereto, we have reproduced as near as possible the aforesaid proceedings.

"(1) M. Harman, father of Lillian Harman, one of the parties to this agreement or compact, read the following, as a general statement of principles in regard to marriage: Marriage, by which term we mean the various attractions, sentiments, arrangements, and interest, psychical, social, material, involved in the sex-relations of men and women, is, or should be, distinctively a personal matter, a strictly private affair. There are, or should be, but two parties to this arrangement or compact, a man and a woman; or perhaps we should say, a woman and a man, since the interests, *13 Pacific Reporter, 279.

the fate of woman is involved, for weal or woe in marriage, to a far greater extent than is the fate or interests of man. Some one has said, 'marriage is for man only an episode, while for woman it is the epoch of her life.' Heuce it would seem right and proper, that in all arrangements pertaining to marriage, woman should have the first voice or control. Marriage looks to maternity, motherhood, as its most important result or outcome, and as dame nature has placed the burden of maternity upon woman, it would seem that marriage should be emphatically and distinctively woman's work, woman's institution. It need not be said that this is not the common, the popular, and especially the legal view of marriage. The very etymology itself of the word tells a very different story. Marriage is derived from the French word 'mari,' meaning the husband.' And never did the etymology of a word more truly indicate its popular and legal meaning than does the etymology of this one. Marriage, as enforced in so-called Christian lands, as well as in most heathen countries, is pre-eminently man's affair, man's institution. Its origin (mythologic origin) declares that woman was made for mau, not man for woman, not each for the other. History shows that man has ruled over woman as mythology declares he should do; and the marriage laws themselves show that they were made by man for man's benefit, not for woman's. Marriage means, or results in the family as an institution, and the laws and customs pertaining thereto make man the head and autocrat of the family. When a woman marries, she merges her individuality as a legal person into that of her husband, even to the surrender of her name, just as chattel slaves were required to take the name of their master. Against all such invasive laws and unjust discriminations, we as autonomists hereby most solemnly protest. We most distinctly and positively reject, repudiate, and abjure all such laws and regulations; and if we ever have acknowledged allegiance to these statute laws regulating marriage, we hereby renounce and disclaim all such allegiance. To particularize and recapitulate: Marriage being a strictly personal matter, we deny the right of society, in the form of church and State, to regulate it or interfere with the individual man and woman in this relation. All such interference, from our standpoint, is regarded as an impertinence, and worse than an impertinence. To acknowledge the right of the State to dictate to us in these matters is to acknowledge ourselves the children or minor wards of the State, not capable of transacting our own business. We therefore most solemnly and earnestly repudiate, abjure and reject the authority, the rites and ceremonies of church and State in marriage, as we reject the mummeries of the church in the ceremony called baptism, and at the bed-side of the dying. The priest, or other State official, can no more prepare the contracting parties for the duties of marriage than he can prepare the dying for life in another world. In either case, the preparation must be the work of the parties immediately concerned. We regard all such attempts at regulation on the part of church and State as not only an impertinence, not only wrong in principle, but disastrous to the last degree in practice. Here, as everywhere else in the realm of personal rights and reciprocal duties, we regard intelligent choice (untrammeled voluntaryism) coupled with responsibility to natural law for our acts, as the true and only basis of morality. As a matter of principle we are opposed to the making of promises on occasions like this. The promise to love and honor may become quite impossible of fulfillment, and that from no fault of the party making such promise. The promise to 'love, honor and obey, so long as both shall live,' commonly exacted of woman, we regard as a highly immoral prom

ise. It makes woman the inferior (the vassal) of her husband, and when, from any cause, love ceases to exist between the parties, this promise binds her to do an immoral act, viz. It binds her to prostitute her sex-hood at the command of an unloving and unloveable husband. For these and other reasons that will readily suggest themselves, we as autonomists prefer not to make any promises of the kind usually made as part of marriage ceremonies.'

“(2) E. C. Walker, as one of the contracting parties, made the following statement: "This is a time for clear, frank statement. While regarding all public marital ceremonies as essentially and ineradicably indelicate (a pandering to the morbid, vicious, and meddlesome element in human nature), I consider this form the least objectionable. I abdicate in advance all the so-called marital rights' with which this public acknowledgment of our relationship may invest me. Lillian is and will continue to be as free to repulse any and all advances of mine as she has been heretofore. In joining with me in this love and labor union, she has not alienated a single natural right. She remains sovereign of herself, as I of myself, and we severally and together repudiate all powers legally conferred upon husbands and wives. In legal marriages, woman surrenders herself to the law and to her husband, and becomes a vassal. Here it is different; Lillian is now made free. In brief, and in addition: I cheerfully and distinctly recognize this woman's right to the control of her own person; her right and duty to retain her own name; her right to the possession of all property inherited, earned, or otherwise justly gained by her; her equality with me in this copartnership; my responsibility to her as regards the care of offspring, if any, and her paramount right and custody thereof, should any unfortunate fate dissolve this union. And now, friends, a few words especially to you. This whole private compact is here announced, not because I recognize that you, or society at large, or the State, have any right to inquire into or determine our relations to each other, but simply as a guarantee to Lillian of my good faith toward her. And to this I pledge my honor.

"(3) Lillian Harman then responded as follows: 'I do not care to say much; actions speak more clearly than words often. I enter into this union with Mr. Walker of my own free will and choice, and I agree with the views of my father and of Mr. Walker as just expressed. I make no promises that it may become impossible or immoral for me to fulfill, but retain the right to act, always, as my conscience and best judgment shall dictate. I retain also my full maiden name, as I am sure it is my duty to do. With this understanding, I give to him my hand in token of my trust in him, and of the fidelity to truth and honor of my intentions toward him.'

"Then M. Harman, said: "As the father, a natural guardian of Lillian Harman, I hereby give my consent to this union. I do not give away the bride,' as I wish her to be always the owner of her person, and to be free always to act according to her truest and purest impulses, and as her highest judgment may dictate.'

period of seventy-five days, and the defendant Lillian Harman for a period of forty-five days, and that the defendants pay the costs of the action, and stand committed to the jail of the county until payment is made. The defendants appealed.

Overmeyer & Safford and G. C. Clemens, for appel

lants.

S. B. Bradford, attorney-general, and F. W. Gilluly, for State.

JOHNSTON, J. The questions to be determined upon this appeal arise upon an instruction given to the jury upon the trial, in which it was said, that "if the defendants, at the time alleged in the information, aud in this State, agreed to live together as husband and wife, without having a license to be married, and without having a marriage solemnized by a judge, justice of the peace, or licensed minister of the gospel, and in pursuance of such agreement lived together in this county, they would be guilty of the offense charged in the information." The instruction is founded upon the marriage act, and the manifest theory of the court is that the law of Kansas has provided rules regulating the marriage contract, and has prescribed a penalty or punishment for those who live together as man and wife without observing its requirements. In behalf of the appellants, it is urged that what was said and done by them was sufficient to constitute marriage at common law. It is claimed that the formalities prescribed by statute are not essential to the validity of the maraiage, and that, as the contract of marriage between the defendants was not void, they are not punishable for failing to observe the statutory requirements in entering into the marriage contract, and that therefore the instruction given was erroneous.

The correctness of the instruction depends upon the proper interpretation of the marriage act. The first section of the act provides that a marriage contract shall be considered in law as a civil contract, to which the consent of the parties is essential, and that the ceremony may be regarded either as a civil ceremony or as a religious sacrament; but it provides that "the marriage relation shall only be entered into, maintained, or abrograted, as provided by law." The second section provides that consanguinity shall be an impediment to marriage; and all marriages within the forbidden degrees of consanguinity are declared to be incestuous and void. The third section declares that all persons who contract, license, or solemnize an incestuous marriage, shall be guilty of a misdemeanor, and subject to fine and imprisonment. The fourth section declares a penalty against any person who shall join others in marriage before a license has been issued by the probate judge. The fifth section provides that the probate judge shall issue a license to all persons legally entitled to the same upon application, and prescribes the form of the license. In the sixth section the probate judge is required to make a record of the licenses issued by him, as well as of the return indorsed upon the license by the person performing the marriage ceremony, and state the fee to which he is entitled. The seventh section visits a penalty upon the probate judge who refuses or neglects to issue a license to a person legally entitled thereto, when application is made, or who neglects to make a record of the license issued, or the return indorsed thereon. The eighth section empowers the probate judge to administer oaths and examine witnesses with reference to the right of persons who apply to him for license to assume the marriage relation, and also prescribes a pen

ment, and for a new trial, were filed and overruled, and the judgment of the court was that the defendant E. C. Walker be confined in the county jail for a

thereto. The ninth section provides that marriages contracted outside of this State, and which are valid where contracted, shall be deemed valid in this State.