labor or skill, however great the change may be, provided it can be proved that the improved article was made from the original material. Silsbury v.

Me Coon, 3 Comst. 379. In this case it was held, where a quantity of corn was taken from the owner by a willful trespasser, and converted by him into whisky, that the property was not changed, and that the whisky belonged to the owner of the original materials. In Chandler v. Edson, 9 Johns. 362, it was held that where a party entered upon the land of another and cut down trees, of which he made shingles, he acquired no property in the timber or shingles. In Brock v. Smith, 14 Ark. 431, it

was held that where one entered upon land as a trespasser, felled timber, and split it up into cordwood, the bestowal of his labor in splitting the timber into cordwood neither wrought a change in its specific character nor gave him any title by accession. To the same effect are also the following cases: Betts v. Lee, 5 Johns. 348; Nesbit v. St. Paul Lumber Co., 21 Minn. 491; Brown v. Sax, 7 Cow. 95; Freeman v. Underwood, 66 Me. 229. In this last case the defendant purchased a quantity of blueberries from persons who picked them from plaintiff's land as trespassers, and it was held that although he acted in good faith he became liable in trover to the true owner." Turley v. Tucker, 6 Mo. 583, is directly in point. The plaintiff was owner of a saw-mill, and

had men employed to cut down trees in a pinery. Plaintiff's employees cut down some 1,400 trees, cut off the tops, and marked them in convenient lengths for stocks, and left them there. The land on which plaintiff's employees cut the trees was government land. Defendant hauled away some of the trees cut by plaintiff's employees, and plaintiff brought

an action in trover against the defendant for the logs taken. In holding that the plaintiff had no right of action, the court say: "To maintain this action plaintiff must have a property either absolute or special, and the possession, or the right to immediate possession, of the goods which are the subject of controversy. There is no pretense that plaintiff had the absolute, had he such a special property as will enable him to maintain an action of trover. The cases of special property referred to by the authorities, in illustration of the maxim that mere possession is sufficient prima facie evidence of property to maintain an action against a wrong-doer, are those of a bailee, a carrier, a lessee for life, a lord who seizes an estray, a sheriff who has levied on goods, and the finder of a jewel. In all these cases, and every other instance of special property, the possession has been a peaceable and lawful possession, or a possession acquired by some show of title from the absolute owner. Did plaintiff, by cutting the timber on government land, acquire such possession? There is no case of a mere trespasser acquiring by his trespass constructive possession. It seems to be contrary to the settled usage of law for courts to interfere in such cases, and aid one trespasser against another. For the peace of society the law will interfere so far as to protect actual possession, but will not raise a presumptive possession as the foundation of a special property." See note, 26 Am. Rep. 525.

OBJECTION TO GRAND JUROR.

fu grand juror can be taken advantage of THE question whether the personal incompetency

State

after indictment found is much mooted. In the affirmative are Alabama, Virginia, Maine, New Hampshire, Vermont, North Carolina, New Jersey, Tennessee, Georgia, Mississippi, Texas, Arkansas, Nebraska and Rhode Island. In the negative, Massachusetts, New York, Indiana, Pennsylvania, Minnesota. But it is almost universally held that the objection must be raised before general issue, either on motion to quash, or by plea in abatement. v. Easter, 30 Ohio St. 542; S. C., 27 Am. Rep. 478; Whart. Cr. Pl., § 350, etc. Thus, in State v. Easter, supra, it was held not a good plea to an indictment for murder, that one of the grand jury which found the indictment was a nephew of the murdered man. This case contains a learned review of the authorities, but does not decide the question whether the objection would be good after indictment and before general issue.

In Wallace v. State, 2 Lea, 29, among recent cases, it was held that objections to the manner of selection and appointment of a grand jury can only be taken by plea in abatement. And in Reich v. State, 53 Ga. 73; S. C., 21 Am. Rep. 265, it was held that it is a good plea in abatement that one of the grand

jurors was an alien; and so that the venire summoning the grand jury was not sealed. Flemming, 66 Me. 142; S. C., 22 Am. Rep. 552.

State v.

The most recent reported decision on this point is State v. Davis, 12 R. I. 492, holding that an objecfications may be raised by plea of abatement. The tion to a grand juror for want of the statutory quali

court in this well-considered case observe: "The

attorney-general contends that the objection comes too late after the jury has been impanelled and sworn. He cites cases which hold that such is the

Duncan, 6 Yerg.

rule; Com. v. Smith, 9 Mass. 107, 110; Com. v. Gee, least if the accused has previously been held to an6 Cush. 174; People v. Jewett, 3 Wend. 314, 321; at swer. People v. Beatty, 14 Cal. 566. Other cases hold that the objection may be taken by plea in abatement. State v. Rockafellow, 6 N. J. Law, 332; Com. v. Cherry, 2 Va. Cas. 20; Stanley v. State, 16 Tex. 557; State v. Middleton, 5 Port. 484; Barney v. State, 12 S. & Marsh. 68; State v. 271; Doyle v. State, 17 Ohio, 222; Huling v. State, id. 583; Kitrol v. State, 9 Fla. 9. We think these latter cases rest on the stronger reasons. It is certainly not reasonable to require a person, who has not been held to answer, to object to the juror before he is impanelled; for he may be on the other side of the globe, or he may have no reason to suppose he is going to be indicted, being guiltless. And even if a person has been held to answer, he may be in prison, or sick at home, or if in court, he may be ignorant, without fault, of the disqualification of the juror until after he has been sworn. Indeed, a person may be indicted for an offense committed pending the inquest. Moreover, the action of the grand jury is ex parte and preliminary, and

it is contrary to principle to hold that a person shall forfeit his rights by not intervening in a proceeding to which he is not a party. No English case has been cited, but English treatises of authority recognize the plea. 2 Hale P. C. 155; Bacon Abr., Juries, A; 1 Chitty Crim. Law, 309. The statute 11 Henry IV, ch. 9, which has been referred to as the source of the English rule, is deemed to be declaratory of the common law. State v. Foster, 9 Tex. 65; Com. v. Cherry, 2 Va. Cas. 20."

But this doctrine seems to be restricted to cases of want of statutory qualifications. Thus, it has been held that the expression of an adverse opinion will not disqualify. In a very recent case, State v. Hamlin, to appear in 47 Conn., it was held that any objection to the competency of a grand juror, on account of his previous expression of opinion that the accused is guilty, must be taken before the grand jury is sworn. The court in substance said: "The expression of an opinion that an accused person is guilty, by a grand juror before he was sworn, appears never to have been a ground of challenge in the English courts. Some respectable authorities in this country hold that it is, but these generally hold that the exception must be taken before the grand jury is sworn. The common law requires grand jurors to be good and lawful freeholders and inhabitants of the county, and where that law prevails a disqualified grand juror may be challenged before indictment found. 3 Bac. Abr., Juries, A; 1 Chitty on Crim. Law, 309; U. S. v. Williams, 1 Dill. 492. In People v. Jewett, 3 Wend. 314, it is said: 'There are causes of challenge to grand jurors, and these may be urged by those accused, whether in prison or out on recognizance, and it is even said that a person wholly disinterested may as amicus curia suggest that a grand juror is disqualified. But such objection to be availing must be made previous to the juror's being impanelled and sworn.' In the case of U. S. v. Burr, before the Circuit Court of the United States at Richmond, Va., the prisoner was allowed to challenge grand jurors, on the ground that they had formed and expressed opinions of the prisoner's guilt. But the challenges were made before the grand jury was impanelled and sworn. son, 38. In Tucker's case, 8 Mass., the court said that Burr's case was solitary in allowing challenges to grand jurors, and a juror objected to by the amicus curia was sworn. In Com. v. Smith, 9 Mass. 107, it was held that objections to the personal qualifications of a grand juror, or to the legality of the returns, cannot affect any indictments found by the jury after they have been received by the court and filed. In Musick v. People, 40 Ill. 268, it was held that if an expression of opinion by a grand juror were a ground of challenge, the objection must be taken before the juror is sworn. In Indiana a person under prosecution for crime, and in custody or on bail, may challenge for good cause any person returned or placed on the grand jury. Hudson v. State, 1 Blackf. 317; Jones v. State, 2 id. 475; State v. Herndon, 5 id. 75; Hardin v. State, 22 Ind. 347; Mershom v. State, 51 id. 14. In Har

din v. State the court say that no doubt challenges to the polls may be made where any of the jurors have not the necessary qualifications. These challenges, however, must be made before the jury are sworn and charged.' In Pennsylvania the defendants in the case of Com. v. Clark, 2 Browne, 325, being in jail on a charge of homicide, were allowed to challenge grand jurors for favor before the grand jury were sworn. In New Jersey the court in the case of the State v. Rockafellow, 1 Halst. 332, held that it was a good plea in abatement to an indictment for rape that one of the grand jurors by whom the bill was found was not a freeholder as required by the statutes of that State. In State v. Richey, 5 Halst., a plea in abatement of the indictment, that two of the grand jurors who found it had expressed an opinion before they were sworn, was not sustained. See, also, U. S. v. White, 5 Cr. C. C. 457; Boyington v. State, 2 Port. 100; State v. Easton, 30 Ohio St. 542; S. C., 27 Am. Rep. 478. If a disqualification discovered after indictment found can be taken advantage of, it must be one that is pronounced such by the common law, or by the statute (if it be a matter of statute), and one that absolutely disqualifies, as alienage or the want of a freehold."

In a very recent New Jersey case, unreported, we understand it has been held that the array of the grand jury cannot be challenged for favor after indictment found.

In the case of Com. v. Moran, Massachusetts Supreme Court, January, 1881, the defendant filed a special plea, alleging that the grand jury which found the indictment was not drawn and summoned according to law. The plea was entertained, although it was held unmeritorious, the court remarking that there was no question of identity or qualifications. This would seem to indicate that the want of qualifications can now be raised in Massachusetts by special plea.

OUR JUDICIAL SYSTEM-ITS FAULTS AND THEIR REMEDIES.

much respect for his judgment or rulings as for those of the Circuit judge.

4. It requires security to perfect an appeal from the County Court to the General Term, while appeals may be perfected from the Circuit Court and Special Term without security.

In brief, the County Court does not afford the advantages to litigants that the Circuit and Supreme Courts do, while it costs them as much to litigate in it. Therefore litigants, like all others, invest their money where they can get the greatest returns, and patronize the higher courts.

To the Justices' Courts we shall have to make the objections above specified in reverse order.

1. Litigation is too cheap-for the defendant at least. Its procedure is designed to tempt him to annoy his creditor. He is not bound to verify his answer. He can delay his creditors at no greater hazard than the payment of the contemptible fees of these courts. He is sued at his door. The creditor cannot verify his complaint as in the Supreme Court, and thus force upon the debtor the alternative of committing perjury or suffering a default. Therefore if the delinquent debtor is not frank enough to admit the claim, the creditor must attend with his witnesses, and no matter how many miles they may travel he can recover but twenty-five cents for each. It does seem that courts thus instituted for the protection of defendants and annoyance of plaintiffs are misnamed. The title of these courts should be changed to courts of "injustice" to creditors.

2. The justices are incompetent to discharge the important power given to them. Very many of them are persons who have not energy or ability to seek and engage in some private business to occupy their mind or time, and can make no better use of their time than to take the office of justice of the peace and try cases for seventy-five cents trial fees. Without learning in the law; without ordinary intelligence; the moment they are elected to the office they get the idea that in and by the election they become mysteriously wise and qualified to do things they never would have thought of doing before. They will draw wills, deeds and contracts of all kinds, and sit in judgment upon their fellow citizens put upon trial for their liberty or property. Instead of resorting to the little natural sense of justice they may have as a guide for their decisions, they think they must resort to the law-to them a mysterious something of which they know nothing-and then, oh! horrors! with what results! They beat you; you appeal; they take pride in having their judgments affirmed; they go to the adverse counsel for assistance in making up their return. If he is honest the return will be honestly made. It is needless to dwell further on objections to these courts. They are the sphere of the " 'pettifogger" and the "shyster." It is with reluctance that an honorable able lawyer will engage in them, and yet the justices who preside in those courts have "exclusive" jurisdiction in many cases to try you, brand you a criminal, send you to the penitentiary for a year and fine you $250. And these courts have jurisdiction to give judgment against you for $200 or deprive your title to property of that value. So that litigation in the inferior courts is on the one hand cheap but dangerous and degrading to engage in, and on the other not as well or satisfactorily conducted but with equal expense as in the higher courts. Is it strange then, that the higher court is overcrowded, the lower courts comparatively idle, and citizens suffering wrong very frequently rather than resort to law in the manner in which it is administered?

What we need is a new inferior court where justice will be administered with less expense and more promptly than in the County Court, and with more dignity and ability than in Justices' Courts. Such a

court can be organized under section 19 of article 6 of the Constitution. It should, in my judgment, be organized so as to be substantially the same as our Supreme Court - a miniature Supreme Court as it were— with jurisdiction concerned with the County Court. Each senatorial district to be the department, and subdivided into as many districts as there are judges. There to be one judge for each 10,000 inhabitants. New subdivisions to be made and additional judges to be elected for every increase of 10,000 inhabitants within the department. The rules, practice and procedure of the Supreme Court to apply to and regulate its procedure, including conventions of its judges, assignment of judges to hold General and Special Terms, etc., with the following exceptions:

1. No clerk to attend the sittings of the court except at General Term.

2. No crier to attend.

3. The trial jury to consist of six men.

4. Costs to be allowed the same as in the Supreme Court, but only at one-fourth of the amount, and to be allowed upon the recovery of $10 instead of $50. Every person against whom costs are recovered to pay $5 to the county treasurer toward defraying the expense of the court.

5. No person to be eligible to the office of judge excepting a counsellor of the Supreme Court. The judges to be paid a moderate salary.

6. Each judge of the court to have the same power to grant orders in actions and special proceedings in the Supreme Court that county judges now possess.

7. Appeals to be allowed from the General Term of the new courts to the General Term of the Supreme Court only when the judges who preside at the former certify that the case is a proper one for the consideration of the General Term of the Supreme Court.

I would also invest the new court with jurisdiction to try all criminal prosecutions of which justices of the peace now have cognizance. I would deprive the justices of the peace of jurisdiction in all criminal prosecutions except the power to issue warrants to be returnable before a judge of the new court, and deprive them of jurisdiction in all civil cases where more than $10 was involved. ALBION, N. Y. GRATIO DICTUM.

PROOF OF FIRST MARRIAGE IN TRIALS FOR BIGAMY.

UNITED STATES SUPREME COURT, MARCH 21, 1881.

MILES V. UNITED STATES.

In a prosecution for bigamy, the fact of the first marriage may be proved by the admissions of defendant or by circumstantial evidence. It is not necessary to prove it by eye-witnesses of the ceremony.

In such prosecution, as long as the fact of the first marriage is contested, the second wife cannot be admitted to prove it. Until the first marriage is established she is prima facie the wife of the accused, and cannot be used as a witness against him.

IN

N error to the Supreme Court of Utah Territory, to review the conviction for bigamy of the plaintiff in error, Miles.

Section 5352 of the Revised Statutes of the United States declares: "Every person having a husband or wife living, who marries another, whether married or single, in a Territory or other place over which the United States has exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term not more than five years."

The plaintiff in error was indicted under this section in the Third District Court of Utah, at Salt Lake City.

He was convicted. He appealed to the Supreme Court of the Territory, where the judgment of the District Court was affirmed. That judgment is now brought to this court for review upon writ of error.

The indictment charged that the plaintiff in error, John Miles, did, on October 24, 1878, at Salt Lake county, in the Territory of Utah, marry one Emily Spencer, and that afterward, and while he was so married to Emily Spencer, and while she was still living, did, on the same day and at the same county, marry one Caroline Owens, the said Emily Spencer, his former wife, being still living and at that time his legal wife.

Upon the trial evidence was given tending to show that a short time before the date laid in the indictment, October 24, 1874, the plaintiff in error was in treaty for marrying, at or about the same time, three young women, namely, Emily Spencer, Caroline Owens and Julia Spencer, and that there was a discussion between them on the question which should be the first wife, and that upon appeal to John Taylor, president of the Mormon Church, the plaintiff in error and the three women being present, it was decided by him that Emily Spencer, being the eldest, should be the first wife; Caroline Owens, being the next younger, the second, and Julia Spencer, being the youngest, the third wife; that being according to the rules of the church.

It appeared further that marriages of persons belonging to the Mormon Church usually take place at what is called the Endowment House; that the ceremony is performed in secret, and the person who officiates is under a sacred obligation not to disclose the names of the parties to it.

It further appeared, that on October 24, 1878, the plaintiff in error was married to the said Caroline Owens, and that on the night of that day he gave a wedding supper at the house of one Cannon, at which were present Emily Spencer, Caroline Owens and others. Evidence tending to establish these facts having been given to the jury, the court permitted to be given in evidence the declarations made by the plaintiff in error, on that night, in presence of the company assembled, and on subsequent occasions, to the effect that Emily Spencer was his first wife.

Section 1604 of the Compiled Laws of Utah declares: "A husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband."

Upon the trial, and after the evidence above recited had been given, tending, as the prosecution claimed, to prove the marriage of the plaintiff in error to Emily Spencer just before his marriage to Caroline Owens, the latter was offered as a witness against him to prove the same fact.

Thereupon the defendant admitted in open court the charge of the indictment that he had been married to Caroline Owens, and even offered testimony to prove it, but this was ruled out by the court. The defendant therefore objected to the introduction of Caroline Owens as a witness against him, the objection being based on the statute just quoted. The court overruled the objection and admitted her as a witness, and she gave testimony tending to prove the marriage of the plaintiff in error to Emily Spencer previous to his marriage with the witness.

It appeared from the evidence that the name of Caroline Owens' father was Maile, but that she had been adopted by an uncle and aunt named Owens, and had taken their name, by which she was called and known, but that when she was baptized in the Mormon Church she was required to be baptized in her father's name, and was married to Miles under that name.

The court, among other things, charged the jury as follows: "If you find, from all the facts and circumstances proven in this case, and from the admissions of the defendant, or from either, that the defendant

Miles married Emily Spencer, and while she was yet living and his wife he married Caroline Owens, as charged in the indictment, your verdict should be guilty."

"A legal wife cannot, but when it appears in a case that a witness is not a legal wife but a bigamous or plural wife, then she may testify against the bigamous husband, and her testimony should have just as much weight with the jury as any other witness, if the jury believe her statements to be true. And her evidence may be taken like the evidence of any other witness to prove either the first or second marriage. And so in this case you are at liberty to consider the testimony of Miss Caroline Owens, if you find from all the evidence in the case that she is a second and plural wife. and give it all the weight you think it entitled to, and may use it to prove the first marriage alleged, to wit, the marriage of defendant and Emily Spencer, or any other fact which in your opinion is proven by the testimony, if you believe it, as you do the testimony of any witness to prove any fact about which she has testified."

"The prisoner's guilt must be established beyond reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt; unless he be so convinced by the evidence, no matter what the class of the evidence, of the defendant's guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests."

Mr. Justice WOODS (after stating the facts and passing upon a question relating to the exclusion of certain jurors whom the triers found to be possessed of bias). It is next assigned for error, that the court admitted the declarations and admissions of the plaintiff in error to prove the fact of his first marriage, and the charge of the court that the declarations of the accused were evidence proper to be considered by the jury as tending to prove an actual marriage, and that such marriage might be proven like any other fact, by the admissions of the defendant, or by circumstantial evidence, and that it was not necessary to prove it by witnesses who were present at the ceremony.

To hold that on an indictment for bigamy, the first marriage can only be proven by eye-witnesses of the ceremony, is to apply to this offense a rule of evidence not applicable to any other. The great weight of authority is adverse to the position of the plaintiff in

error.

In Regina v. Simmonsto, 1 Car. & Kir. 164, it was held that "on an indictment for bigamy, the first marriage may be proved by the admissions of the prisoner; and it is for the jury to determine whether what he said was an admission that he had been legally married according to the laws of the country where the marriage was solemnized.

The same view is sustained by the following cases: Regina v. Upton, 1 Car. & Kir. 165, note (1 Greav. ed. of Russ. on C. & M. 218); Duchess of Kingston's case, 20 How. State Trials, 355; Truman's case, 1 East P. C. 470; Cayford's case, 7 Grant, 57; Ham's case, 2 Fair, 391; State v. Ililton, 3 Rich. 434; State v. Britton, 4 McCord, 256; Warner v. Commonwealth, 2 Va. Cas. 595; Norwood's case, 1 East P. C. 470; Commonwealth v. Murtagh, 1 Ashm. 272; Regina v. Newton, 2 Moody & R. 503; State v. Libby, 44 Me. 469; State v. McDonald, 25 Mo. 176; Cameron v. State, 14 Ala. 546; Wolverton v. State, 16 Ohio, 173; State v. Seals, 16 Ind. 352; Quin v. State, 46 id. 725; Arnold v. State, 53 Ga. 574; Brown v. State, 52 Ala. 338, Com