nor prejudicial to the defendants. Lachman v. Barnett. Opinion by Leonard, J.

[Decided Feb. 26, 1884.]

INTOXICATING

Where

CRIMINAL LAW.

from

LIQUORS IRREGULAR SALE.druggist a who has permit a the probate judge of his county to sell intoxicating liquors for medical, scientific and mechanical purposes, is prosecuted upon information in the District Court for selling intoxicating liquors for other than medical, scientific or mechanical purposes, and no other offense is charged against him, he cannot be convicted for the offense of selling intoxicating liquors for medical, scientific and mechanical purposes in an irregular manner. Sup. Ct. Kans., Jan., 1884. State v. White. Opinion by Valentine, J. (31 Kans. 342.)

APPEAL A FUGITIVE NOT ENTITLED TO BE HEARD. (1) Where the offense charged is a felony, and the defendant remains a fugitive from justice, he has no right to be heard upon any appeal in his behalf in this court. (2) Moreover the orders of the lower court forfeiting the bail money on the non-appearance of the defendant (though his counsel was present and wished to demur to the indictment), and refusing to hear a motion to discharge the forfeiture, the defendant still being at large, are not appealable, and can only be reviewed on an appeal from a final judgment. Sup. Ct. Utah, Feb., 1884. People v. Tremayne. Opinion by Emerson, J. (3 Pac Rep. 85.) [See 17 Am. Rep. 315; 3 T. & C. 734, 739; 115 Mass. 133; 10 Bush, 526; 15 La. Ann. 495; 20 Gratt. 716, 722.-ED.]

BASTARDY-EVIDENCE-NON-ACCESS-PRESUMPTION. -The law is well settled that the wife, on the question of legitimacy of her children, is incompetent to give evidence of the non-access of her husband during the time in which they must have been begotten. This rule is founded on the very highest grounds of public policy, decency, and morality. The presumption of the law is in such a case that the husband had access to the wife, and this presumption must be overcome by the clearest evidence that it was impossible for him, by reason of impotency or imbecility, or entire absence from the place where the wife was during such time, to have had access to the wife, or to be the father of the child. Testimony of the wife even tending to show such fact, or of any fact from which such nonaccess could be inferred, or of any collateral fact connected with this main fact, is to be most scrupulously

kept out of the case; and such non-access and illegitimacy must be clearly proved by other testimony. The King v. Inhabitants, etc., 5 Ad. & Ell. 180; Dennison v. Page, 29 Penn. St. 420; People v. Overseers of the Poor, 15 Barb. 286; Com. v. Shepard, 6 Bin. 283; State v. Pattaway, 3 Hawks (N. C.), 625; Cope v. Cope, 1 Moody & R. 269. Sup. Ct. Wis., May 15, 1884. Mink v. State. Opinion by Orton, J. (19 N. W. Rep. 445.) [See 22 Eng. Rep. 286; 30 id. 562; 31 Minn. 319.ED.]

FINANCIAL LAW.

NOTARY-PROTEST OF-EVIDENCE TO CONTRADICTNO PRESENTATION INDORSES DISCHARGE.--(1) The protest of a notary is only prima facie evidence of the facts contained in it, and evidence to contradict and overcome its recitals is admissible. (2) To bind the indorsers on a note, it must be presented to the maker

at maturity, and no previous statement of intention not to pay at maturity, or other arrangement between the maker and holder, cau excuse the non-presentation, so far as the indorsers are concerned, whatever effect it may have as to the maker. This question has been settled by the Supreme Court of Massachusetts in Lee Bank v. Spencer, 6 Metc. 309. That was a suit against indorsers of a promissory note made payable at the bank. It was not presented to the bank for payment at maturity, because the promisor had forwould be useless to present the note at the bank, as he mally called on the holders and informed them that it could not pay it. But said Shaw, C. J., "however this might affect the rights of the promisor, we think it did not alter the conditional obligation of the indorsers, and make them responsible without any presentment whatever." So in Pierce v. Whitney, 29 Me. had addressed a letter to the holder informing him 188, it was held that the fact that the maker of a note that he would not be able to pay it at maturity, and requesting an extension, would be no excuse for nonpresentation of the note at its maturity to the maker. Sup. Ct., Cal., Jan., 1884. Appelgarth v. Aybott. Opinion by McKee, J. (2 Pac. R. 43.)

CORRESPONDENCE.

MR. THROOP TO MR. STERNE.

Editor of the Albany Law Journal:

In the article by Simon Sterne, Esq., published in the last number of the ALBANY LAW JOURNAL, entitled, "On the Prevention of Defective and Slipsbod Legislation," I find the following statement relating to the Code of Civil Procedure:

"At last the first seven chapters were passed. It was then discovered that the repealing clause threatened a general jail delivery, and that section had to be amended subsequently before the Code could be permitted to take effect."

Gentlemen who are criticising others for "defective and slipshod legislation" should be very careful not to make "defective and slipshod" statements of fact, as Mr. Sterne has done in this instance. The installment of the Code of Civil Procedure which passed in 1876 contained the first thirteen chapters. No attempt was ever made to pass the first seven chapters separately; nor were they ever separately reported to the Legislature; but when a draft of them was completed printed copies thereof were sent by the commissioners to members of the bar for their suggestions; and after receiving such suggestions the commissioners revised, amended and reprinted those chapters with the other six, and reported the thirteen chapters to the Legisla ture, nearly two years after the drafts of them had been thus sent out. Nor did the Code of Civil Proce dure contain any “repealing clause " whatever, either in the installment enacted in 1876 or in the installment enacted in 1880. Nor did the General Repealing Act of 1877 (L. 1877, ch. 417)—if Mr. Sterne means that act by his expression "repealing clause "-contain any thing which " threatened," or was thought by anybody (as far as I ever heard) to threaten, or could possibly be thought by any sensible person to threaten "a general jail delivery;" nor was it, nor were the thirteen chapters of the Code amended with the expectation or for the purpose of preventing any "jail delivery," general, special, particular or partial.

Respectfully yours,
MONTGOMERY H. THROOP.

ALPANY, September 22, 1884.

because these people did not like the Salvation Army and their meetings, they tried to strain that by-law to prevent their doing what they prima facie have a right to do, my view of the case would be altogether different; but as far as I can judge, it appears from the whole of the proceedings there was fair reason to think that the playing of this musical instrument in this place was an annoyance to some of the persons who heard them, and the man who was summoned and fined was fined for

that reason. On the one hand he has every right to be protected in conducting religious worship in whatever harmless way he thinks fit; but on the other hand he must obey the law, and if the law of a particular borough is that he is not to play a musical instrument in the streets if people object, then he must not play it there, or he must play it where people will not object, and I daresay there are many places where he could play it without getting into trouble.” What a luxury it must be to live in a place where a householder can induce an organ-grinder to " move on without paying

tribute!

But the magistrates of Rugby were not so certain whether mushrooms are "cultivated plants," when salt has been sown with them to encourage their growth. At common law larceny does not lie for taking things savoring of the realty, but the Criminal Law Consolidation Act makes it a summary offense to "destroy or damage with intent to steal any plant growing in any garden, orchard, pleasure-ground, nursery-ground, hothouse, greenhouse or conservatory," and also to "destroy or damage with intent to steal any cultivated root or plant used for the food of man or beast, and growin any land." The defendant was complained of for taking mushrooms from a field. The London Law Journal says: "The case clearly did not come within the first offense, because the mushrooms were growing in a field and not in a garden; but the question was whether mushrooms growing in the field, and cultivated to the extent of salt being thrown down for their benefit are cultivated plants' within the meaning of the section. The magistrates decided that they were not, and it would be hard to say that they are wrong. Mushrooms are clearly not cultivated plants' as a class, and merely throwing a little salt or a little manure on a field will not alter their character in the eye of the criminal law. If this were so, it might be criminal to pick blackberries, because the owner took care of the bramble bushes in clipping the hedge. The mode of cultivating mushrooms from spat is well known, and makes them apparent to the eye as cultivated plants, and in this form alone would mushrooms in the fields seem to come within the statute. The case, which is reserved for the opinion of the High Court, may however throw some light on the nature and properties of a somewhat mysterious growth." The case will eventually be worthy of embalmment in our "Common Words and Phrases."

The case of the yacht Mignonette raises the question whether one of two survivors of a shipwreck may lawfully kill and eat the other in order to save himself from starvation. The Law Journal remarks: "The story of the yacht Mignonette raises no legal question about which there can be any real doubt. English law does not recognize necessity as an excuse for crime. Hunger is no defense to a charge of larceny, still less is it a defense to a charge of murder. There is authority in the books for saying that if two drowning men grasp a plank which will only support one, it is not homicide for one to push the other off. This is looked upon as a sort of act of self-defense, and is as far as the law goes in admitting the plea of necessity. Ordinarily, necessity in English law means compulsion by threats of life or limb." And the Solicitors' Journal observes:

Blackstone says: "There is one species of homicide se defendendo where the party is equally innocent as he who occasions the death, and yet this homicide is equally excusable from the great universal principle of self-preservation which prompts every man to save his own life preferable to that of another, where one of them must inevitably perish. As among others, in the case mentioned by Lord Bacon, where two persons being shipwrecked and getting on the same plank, but finding it not able to save them both, one of them thrust the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man's is excusable through unavoidable necessity and the principle of self-defense, since both remaining on the same plank is a mutual, though an innocent attempt upon, and endangering each other's life.' The analogy between the case of two drowning men struggling for the support of a small plank, and that of two or more men in a boat in no immediate peril otherwise than from starvation, is somewhat imperfect, since the survival of either of them could scarcely be described as even an innocent attempt upon and endangering each other's life.'" We think the difference between the two cases is very narrow, almost imperceptible. It is plain that in a struggle to get possession of the plank either would be justified in beating the other off, even at the expense of life; but when two are once on a plank that can support only one, one has as much right to it as the other, and if one thrusts the other off to save his own life, how does that differ from his killing and eating him to save his own life? Strictly speaking, are not both murder? Should they not wait for the "survival of the fittest?" We concede that "hunger is no defense to a charge of murder," but we do not see that danger to one's own life is any defense to a charge of taking the life of another. But where is the jury that would convict on such a charge? Men are not morally responsible in such circumstances - they are unreasoning brutes, maniacs, reduced to a state of nature, and absolved from the obligations of society. At least, so it will seem to the average twelve men.

NOTES OF CASES.

N Rae v. Mayor, etc., 51 Mich. 526, it was held

Is that w one charter of a city requires the

* *

common council to take measures for the preservation of the public health, a nurse employed by the council to take care of small-pox patients is entitled to compensation from the city, although the patient himself is of sufficient ability to pay for the service, and a statute makes the cost of services so rendered an individual liability. The court said: "The duty to guard the public health and prevent the spread of contagion was imperative, and the power of the common council was commensurate with the duty. Neither the power nor the obligation could be lessened by the failure to designate a sub-agency." * "In providing that what is done shall be at the charge of individuals, it is not intended to exempt the public from immediate liability. It would be impossible under such a regulation to effectuate the general object. Individuals would not be willing to provide necessaries, and serve as nurses and assistants at the instance of the public if compelled to collect their pay of the patients or their relatives. The public is first and immediately responsible, and the intent of the statute is to enable the public to obtain reimbursement from those who ought to sustain the expense. The plaintiff hired herself to the city. She trusted the

city and no one else. The occasion was a public

one. It was an emergency to which the duty and authority of the common council attached under the power of police, and the right and duty to act

depended in no manner on the pecuniary ability of the persons who were sick or infected. The great object was to stay the contagion, and the proper and humane care of the individuals was a righteous incident. The question is not affected by any of the other provisions. We are satisfied that the council was fully authorized to employ the plaintiff, and that the city is liable." To the same effect, Labrie v. Manchester, 59 N. H. 120; S. C., 47 Am. Rep. 179; 29 Alb. Law Jour. 43.

In Keane v. Sprague, New York City Court, the court, by McAdam, J., held as follows: "The defendant, the manager of the St. James Hotel, was informed by a guest that the plaintiff, a domestic employed in the hotel, had stolen a diamond pin from his room, whereupon the defendant sent for the plaintiff and told her what the guest had said, and in the presence of the chambermaid charged the plaintiff with the offense. For this the plaintiff sues the defendant, and the question arises whether, under the circumstances stated, the communication, apparently slanderous per se, was privileged. I hold that it was. The relation of master and servant existed, in legal effect, between the parties, and the occasion, in law, repels all idea of malice, and justified the defendant in repeating the charge which his guest made. See Townshend on Libel and Slander, §§ 209, 244; Manly v. Witt, 18

C. B. 544; Somerville v. Hawkins, 10 id. 583; Odgers on Libel and Slander, by Bigelow, 202, 218, 225; Klinck v. Colby, 46 N. Y. 433. The communication had its origin in the confidential relation existing between the parties, and emanated from one whom the defendant, under the circumstances, had the right to believe. Privileged communications comprehend all statements made bona fide in the performance of a duty, or with a fair and reasonable purpose of protecting the interest of the person making them. The communication made by the defendant comes within the protection of this rule. What the defendant said was in performance of a duty he owed, not only to the guest, but to the good reputation and management of the hotel under his charge. Numerous illustrations of the rule will be found in the authorities above cited, and the recent case of Billings v. Fairbanks (Sup. Ct. of Mass., Dec., 1883) shows that it controls the disposition of this case. The communication being privileged, the legal inference of malice is repelled, and the onus of proving its existence, beyond the mere falsity of the charge, was in consequence thrown upon the plaintiff. Lewis v. Chapman, 16 N. Y. 373. There being no affirmative proof of actual malice it follows that the complaint must be dismissed."

In Pomeroy v. State, 94 Ind. 96, the accused, a physician, while examining the person of a female patient believed to be suffering from a disease of

the womb, had carnal connection with her. There was no evidence of consent upon her part, obtained

by fraud or otherwise. Held that the accused was tends to show that the appellant, as a physician, inguilty of rape.

The court said: "The evidence

formed Rebecca and her mother that the former was suffering from a terrible womb disease, and was losing her mind. If the jury believed, as they might well have done under the evidence, that the appellant, as a physician, obtained possession and

control of Rebecca's person, under her mother's command, for the purpose of making a further examination of her alleged disease of the womb, and not for the purpose of sexual intercourse, and that she never in fact gave her consent, through fraud or otherwise, to the sexual connection, then, it seems to us, that the case in hand falls fairly within the doctrine declared in Queen v. Flatery, 2 Q. B. D. 410, decided in 1877, and that the appellant was lawfully convicted of the crime of rape. In the case cited, as in this, the defendant professed to give medical and surgical advice for money. The prosecutrix, a girl of nineteen, like the prosecutrix in this case, was subject to fits,' and she and her mother consulted the defendant in regard to her case, and informed him of her condition. The defendant, as in this case, made an examination of the person of the prosecutrix, and advised that a surgical operation be performed, and under the pretense of performing it, had carnal connection with her. It was held by the court that the prisoner was guilty of rape. Kelly, C. B., said:

'It is plain that the girl only submitted to the defendant's touching her person in consequence of the fraud and false pretenses of the prisoner, and that the only thing that she consented to was the performance of the surgical operation. Up to the time when she and the prisoner went into the room alone, it is clearly found on the case that the only thing contemplated, either by the girl or her mother, was the operation which had been advised; sexual connection was never thought of by either of them. And after she was in the room alone with the prisoner, what the case expressly states is that the girl made but feeble resistance, believing that she was being treated medically, and that what was taking place was a surgical operation. In other words, she submitted to a surgical operation, and nothing else. It is said however, that having regard to the age of the prosecutrix, she must have known the nature of sexual connection. I know of no ground in law for such a proposition. And even if she had such knowledge she might suppose that penetration was being effected with the hand or with an instrument. The case is therefore not within the authority of those cases which have been decided, decisions which I regret, that where a man by fraud induces a woman to submit to sexual connection, it is not rape.' In the same case, Mellor, J., also said: 'It is said that submission is equivalent to consent, and that here there was submission. But submission to what? Not to carnal connection. The case is exactly within the words of Wilde, C. J., in Reg. v. Case, 1 Den. C. C., at page 582: She consented to one thing, he did another materially different, on which she had been prevented by his fraud, from exercising her judgment.' In People v. Crosswell, 13 Mich. 427, after citing some decisions both in England and in this country, to the effect that if the woman's consent is obtained by fraud the crime of rape is not committed, Cooley, J., said: 'But there are some cases in this country to the contrary, and they seem to us to stand upon much the better reason, and to be more in accordance with the general rules of criminal law. People v. Medcalf, 1 Whart. C. C. 378, and note 381; State v. Shepherd, 7 Conn. 54. And in England where a medical practitioner had knowledge of the person or a weak-minded patient, on pretense of medical treatment, the offense was held to be rape. Reg. v. Stanton, 1 C. & K. 415. The outrage upon the woman, and the injury to society, is just as great in these cases as if actual force had been employed, and we have been unable to satisfy ourselves that the act can be said to be any less against the will of the woman, when her consent is obtained by fraud, than when it is extorted by threats or force." " But in Don Moran v. People, 25 Mich. 356; S. C., 12 Am. Rep. 283, the jury having been instructed that they might convict if they found that the defendant procured the woman to have connection with him by fraudulent representations, which she believed, that it was a necessary part of his medical treatment of her, and to save the necessity of a dangerous operation, held,

error, because it did not recognize force as an essential element. See note, 12 Am. Rep. 290. See also Oleson v. State, 11 Neb. 276; S. C., 38 Am. Rep. 366; Whittaker v. State, 50 Wis. 518; S. C., 36 Am. Rep. 856, and note, 860.

SOME CHARACTERISTICS OF CHARLES JAMES FOLGER.

[N looking over my letters from Judge Folger it

be of great interest to the legal profession and to the public, as illustrative of his mental characteristics and habits, and his opinions, and would display him in a familiar and pleasant light to those who did not intimately know him. For example, I know it is generally supposed that he died of political disappointment. This is a natural inference, perhaps, but it is a mistaken one, I believe. He was too strong for that, and he was a very sick man long before he went to Washington. How he really felt about his defeat in 1882 is shown in the following, of November 15, 1882, in answer to mine remarking that election day had proved a "cold day for the Republican party:" "You seem to think that Mr. Cleveland's election is one of the 'frozen facts' that we have heard of lately. Several of the anonymous letters I received during the canvass promised to make it hot' for me. Whence this inconsistency? For I fancy the writers hug themselves with the notion that they kept their promise. Considering the tone and action of the Republicans, 'lukewarm' might be the better word. But cold, or hot, or tepid, it has passed, and I am content if the people are." The next day he wrote: "Your having forsworn politics may have saved you from some evil things; it ought not to debar you from some good things; so I send you this. I have a note by mail, anonymous, as follows: 'Accept the best wishes and appreciation, in this day of your defeat, from a political opponent.

'Multis ille bonis flebilis occidit,
Nulli flebilior quam mihi.'
'Consulque non unius anni

Sed quoties bonus atque fidus.'

The first couplet is from the ode of Horace, addressed to Virgil on the death of Quinctilius Varus (Lib. 1, ode xxiv). My friend has substituted mihi for tibi, and omitted Virgili. He (perhaps you will think) would have been as apt in quotation if he had written to me the last two lines of the ode:

'Durum, sed levius fit patientia Quicquid corrigere est nefas !' (It is hard; but borne with patience, even that which cannot be remedied, becomes more tolerable.) Where my Democratic mourner gets his other couplet, I have not yet found." I am inclined to believe that he was more annoyed at his inability to ascertain the authorship of that couplet than by his defeat.

He did not love politics, and he heartily despised the insincerity and faithlessness of politicians. I