to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. To quote the language used by us in the Slaughter-house cases, no one can fail to be impressed with the one pervading purpose found in all the amendments, lying at the foundation of each, and without which none of them would have been suggested we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them." So again: "The existence of laws in the States where the newly-emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was, the evil to be remedied, and by it (the fourteenth amendment) such laws were forbidden. If, however, the State did not conform their laws to its requirements, then by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation." And it was added, "we doubt very much whether any action of a State, not directed by way of discrimination against the negroes, as a class, will ever be held to come within the purview of this provision."

If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly-made citizens, who being citizens of the United States are declared to be also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property, without due process of law; or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race, the right to exemption from unfriendly legislation against them distinctively as colored — exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race.

That the West Virginia statute respecting juriesthe statute that controlled the selection of the grand and petit jury in the case of the plaintiff in error- - is such a discrimination ought not to be doubted. Nor would it be if the persons excluded by it were white men. If in those States where the colored people constitute a majority of the entire population a law should be enacted excluding all white men from jury service, thus denying to them the privilege of participating equally with the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the laws. Nor if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment. The very fact that the colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an

assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.

The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine, that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone in his commentaries says, "the right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the great charter." It is also guarded by statutory enactments intended to make impossible what Mr. Bentham called "packing juries." It is well known that prejudices often exist against particular classes in the community which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy. Prejudice in a local community is held to be a reason for a change of venue. The framers of the constitutional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was doubtless a motive that led to the amendment. By their manumission and citizenship the colored race became entitled to the equal protection of the laws of the States in which they resided, and the apprehension that through prejudice they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the National government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice that portion of the amendment would have been unnecessary, and it might have been left to the States to extend equality of protection.

In view of these considerations it is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offense against the State. It is not easy to comprehend how it can be said, that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?

We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selections to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the 14th amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. As we have said more than once, its desigu was to protect an emancipated race, and to strike down all possible legal discriminations against those who belong to it. To quote further from 16 Wall.,

supra.: "In giving construction to any of these articles (amendments), it is necessary to keep the main purpose steadily in view." "It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other." We are not now called upon to affirm or deny that it had other purposes.

The fourteenth amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory, but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.

Concluding, therefore, that the statute of West Virginia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offense against the State, it remains only to be considered whether the power of Congress to enforce the provisions of the fourteenth amendment by appropriate legislation is sufficient to justify the enactment of section 641 of the Revised Statutes.

A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress. Prigg v. The Commonwealth of Pennsylvania, 16 Pet. 339. So in U. S. v. Reese, 92 U. S. 217, it was said by the Chief Justice of this court: "Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected." But there is express authority to protect the rights and immunities referred to in the fourteenth amendment, and to enforce observance of them by appropriate congressional legislation. And one very efficient and appropriate mode of extending such protection, and securing to a party the enjoyment of the right or immunity, is a law providing for the removal of his case from a State court, in which the right is denied by the State law, into a Federal Court where it will be upheld. This is an ordinary mode of protecting rights and immunities conferred by the Federal Constitution and laws. Section 641 is such a provision. It enacts that "when any civil suit or criminal prosecution is commenced in any State court for any cause whatsoever against any person who is denied, or cannot enforce, in the judicial tribunals of the State, or in the part of the State where such prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of

ject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." This act puts in the form of a statute what had been substantially ordained by the constitutional amendment. It was a step toward enforcing the constitutional provisions. Section 641 was an advanced step, fully warranted, we think, by the fifth section of the fourteenth amendment.

We have heretofore considered and affirmed the constitutional power of Congress to authorize the removal from State courts into the Circuit Courts of the United States, before trial, of criminal prosecutions for alleged offenses against the laws of the State, when the defense presents a Federal question or when a right under the Federal Constitution or laws is involved. State of Tennessee v. Davis. It is unnecessary now to repeat what we there said.

That the petition of the plaintiff in error, filed by him in the State court before the trial of his case, made a case for removal into the Federal Circuit Court under section 641, is very plain, if by the constitutional amendment and section 1977 of the Revised Statutes he was entitled to immunity from discrimination against him in the selection of jurors, because of their color, as we have endeavored to show that he was. It set forth sufficient facts to exhibit a denial of that immunity and a denial by the statute law of the State.

There was error, therefore, in proceeding to the trial of the indictment against him after his petition was filed, as also in overruling his challenge to the array of the jury and in refusing to quash the panel.

The judgment of the Supreme Court of West Virginia is reversed and the case is remitted with instructions to reverse the judgment of the Circuit Court of Ohio county.

LIABILITY OF NATIONAL BANK FOR LOSS OF SPECIAL DEPOSITS.

SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1879.

FIRST NATIONAL BANK OF CARLISLE, Plaintiff in Error, v. GRAHAM.

A National bank received for safe keeping government bonds belonging to G. From time to time the cashier of the bank cut off the coupons and collected the same, placing the amount to the credit of G., paying it to him when demanded. For this service the bank received no compensation. Through the gross negligence of the bank or its officers the bonds were lost. Held, that the bank was liable.

It is competent for a National bank to receive special deposits of securities, either on a contract of hiring, or without reward, and it will be liable for their loss through its negligence.

N error to the Supreme Court of the Commonwealth of Pennsylvania. Action by the First National Bank of Carlisle, Pennsylvania, by Wilbur F. Sadler, receiver, against Fannie L. Graham. The opinion states the case.

SWAYNE, J. The capital stock of the bank was $500,000, divided into 500 shares of $1,000 each. From November 9, 1869, Samuel Hepburn, the president, owned 460 shares. His son, C. H. Hepburn, was the cashier, and he and Hopewell Hepburn, another son, and a director, owned ten shares each. From October 19, 1871, H. M. Hepburn, also a son and director, owned ten shares. John G. Orr, the teller and a director, owned the remaining ten shares. With one exception, these persons were directors from the year 1670. In 1867 the defendant in error had $4,000 of 7.30 bonds of the United States deposited in the bank for safe-keeping. They were called in by the government, and at

her request the cashier had them converted into the same amount of 5.20 bonds. These also were left in the bank for safe-keeping. The cashier gave her a receipt, dated October 22, 1868, setting forth this fact and that the bonds were to be returned on the return of the receipt. The cashier cut off the coupons and collected them and placed the proceeds to her credit on the books of the bank and paid her the amount as it was demanded. She kept an account with the bank. Before and after the times mentioned the officers of the bank were accustomed to receive such deposits from others in the same way and for the same purpose. They were entered in a book kept by the bank. The fact of there being such deposits was frequently spoken of by the directors at meetings of the board. Some of the directors and quite a number of other persons had such deposits in the bank. No compensation was expected or received by the institution. It was a bailee without reward. The bank alleged that on the 5th of August, 1871, the bonds of the defendant in error were stolen from its vault. She did not learn the fact until some two or three weeks afterward. She heard that some other securities belonging to her and so deposited had been stolen, and upon inquiry at the bank, was told that those securities had been found upon a neighboring highway and had been returned, but that her government bonds had been stolen also and had not been recovered. She was requested to say nothing about their loss, and was assured that the interest should be regularly paid to her and that the value of the bonds should also be made good, so that she should not be a loser. The interest was accordingly paid up to the first of July, 1873, inclusive. This suit was brought to recover the value of the bonds.

The defendant in the court below asked the court to instruct the jury that the bank being a corporation chartered under the National Banking Laws, "was not authorized to receive bonds and valuables for safekeeping;" that "the act of the cashier in taking the bonds of the plaintiff was not within the scope of his powers and duties as cashier; and, therefore, did not bind the bank, and that the plaintiff could not recover." This instruction the court refused to give, and the defendant excepted.

The jury was instructed that "to justify a recovery against the defendant in this case, they must be satisfied from the evidence that the plaintiff's bonds were received for safe-keeping with the knowledge and acquiescence of the officers and directors of the bank, and that if the bonds were lost by the gross negligence of the bank or its officers, the bank was liable." The defendant again excepted. A verdict was rendered for the plaintiff. The jury thus found and affirmed the facts of knowledge and gross negligence by the bank. These points are, therefore, conclusively established and are not open to inquiry.

Conceding for the moment that the contract was illegal and void for the reason alleged in behalf of the bank, the consequence insisted upon would by no means follow. There was no moral turpitude on either side certainly none on the part of the depositor. She was entitled at any time to reclaim the securities. The bank was bound in good faith and in law to return them or to keep them without gross negligence until they were called for. If, when applied for, they were refused, it cannot be doubted that they, or their value, according to the form of action adopted, might have been recovered. White v. The Franklin Bank, 22 Pick. 181. If the bank had destroyed them or had thrown them into the street, whereby they were lost to the plaintiff, the liability of the bank would have been the same. To have kept them with gross negligence, whereby the same consequence to the plaintiff was incurred, involved necessarily the same result to the depositary. The only way of escape from liability open to the latter would have been to return the property to

the owner or to get rid of its possession otherwise in some lawful way. Gross negligence on the part of a gratuitous bailee, though not a fraud, is in legal effect the same thing. Foster v. Essex Bank, 17 Mass. 479. It is a tort, and an action on the case is the appropriate remedy for such a wrong. In many cases where there is a valid contract, it may be regarded only as inducement and as raising a duty, for the breach of which an action may be brought ex contractu or ex delicto, at the option of the injured party. 1 Chy. Pl. 151.

Corporations are liable for every wrong they commit, and in such cases the doctrine of ultra vires has no application.

They are also liable for the acts of their servants while such servants are engaged in the business of their principal, in the same manner and to the same extent that individuals are liable under like circumstances. The Merchants' Bank v. The State Bank, 10 Wall. 645. An action may be maintained against a corporation for its malicious or negligent torts, however foreign they may be to the objects of its creation or beyond its granted powers. It may be sued for assault and battery, for fraud and deceit, for false imprisonment, for malicious prosecution, for nuisance, and for libel. In certain cases it may be indicted for misfeasance or non-feasance touching duties imposed upon it in which the public are interested. Its offenses may be such as will forfeit its existence. P. W. & B. R. R. Co. v. Quigley, 21 How. 209; 2 Wait's Actions and Defenses, 337, 338, 339; Angell and Ames on Corporations, §§ 186, 385; Cooley on Torts, 119, 120.

Recurring to the case in hand, it is now well settled that if a bank be accustomed to take such deposits as the one here in question, and this is known and acquiesced in by the directors, and the property deposited is lost by the gross carelessness of the bailee, a liability ensues in like manner as if the deposit had been authorized by the terms of the charter. Foster v. Essex Bank, 17 Mass. 479; Lancaster Co. National Bank v. Smith, 62 Penu. St. 47; Scott v. National Bank of Chester Valley, 72 id. 471; First Nat. Bank of Carlisle v. Graham, 79 Penn. 106; Turner v. First Nat. Bank of Keokuk, 26 Iowa, 562; Smith v. First Nat. Bank of Westfield, 99 Mass. 605; Chattahooche Nat. Bank v. Schley, 58 Ga. 369. The only authorities in direct conflict with these adjudications, to which our attention has been called, are Wiley v. Nat. Bank of Vermont, 47 Vt. 546, and Whitney v. Nat. Bank of Brattleboro, 50 id. 389.

The case first cited (Foster v. the Essex Bank) was argued exhaustively by the most eminent counsel of the time and decided by a court of great judicial learning and ability. Their opinion is marked by careful elaboration.

The special deposit there was a cask containing gold coin. While it was maintained that the bank would have been liable for its loss by gross negligence, it was held that such negligence in that case had not been shown.

Here gross negligence is conclusively established. The depositor kept an account in the bank. The cashier cut off and collected the coupons and placed the proceeds to her credit. The bonds, therefore, entered into the legitimate and proper business of the institution. But it is unnecessary to pursue this view of the subject further, because we think there is another ground free from doubt upon which our judgment may be rested.

The 46th section of the Banking Act of 1864, re-enacted in the Revised Statutes of the U. S., § 5228, declares that after the failure of a National bank to pay its circulating notes, etc., "it shall not be lawful for the association suffering the same to pay out any of its notes, discount any notes or bills, or otherwise prosecute the business of banking, except to receive and safely keep moneys belonging to it, and to deliver spec

ial deposits." This implies clearly that a National bank, as a part of its legitimate business, may receive such "special deposits," and this implication is as effectual as an express declaration of the same thing would have been. U. S. v. Babbit, 1 Black, 61.

The phrase "special deposits," thus used, embraces deposits such as that here in question. Patterson v. Syracuse Nat. Bank, Court of Appeals of New York (recently decided and not yet reported). In that case it was said, "a reference to the history of banking discloses that the chief, and in some cases the only deposits received by the early banks were special deposits of money, bullion, plate, etc., for safe-keeping and to be specifically returned to the depositor; and such was the character of the business done by the Bank of Venice (the earliest bank) and the old Bank of Amsterdam, and the same business was done by the Goldsmiths of London and the Bank of England, and we know of none of the earlier banks where it was not done."

It would undoubtedly be competent for a National bank to receive a special deposit of such securities as those here in question either on a contract of hiring or without reward, and it would be liable for a greater or less degree of negligence accordingly.

We do not mean that it could convert itself into a pawnbroker's shop. That subject involves topics alien to the case before us and which in this opinion it is unnecessary to consider.

The judgment of the Supreme Court of the Commonwealth of Pennsylvania is affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

ALIENAGE-DESCENT OF REAL ESTATE-BROTHER LEAVING ALIEN FATHER AND CITIZEN SISTER-CITIZENSHIP BY MARRIAGE-INHERITANCE FROM BROTHER

TO SISTER-STATUTORY CONSTRUCTION. -In 1866, S., a naturalized citizen, owning real estate in this State, died intestate, leaving him surviving as the only persons answering the description of heirs, his father L., an alien residing in Germany, B., a sister, who was born an alien and had not been naturalized, and two children of a deceased sister, who was an alien, they being also aliens residing in this State. B. had, in 1857, married a citizen of the United States. In 1877 plaintiff agreed to buy from B. such estate, but thereafter asked to be relieved from his agreement on the ground that B. did not take title to the estate from her father. Held, that B., by her marriage with a citizen in 1857, became herself a citizen and capable of taking and holding lands in this State, by purchase or descent. 10 U. S. Stat. at L., ch. 71, p. 604; 1 R. S. 719, § 8; Kelley v. Owen, 7 Wall. 496. The estate, on the death of S.. would have descended by law to his father but he was incapable of taking, and Laws of 1845, ch. 115, § 4, did not remove the incapacity. The children of the deceased sister could not inherit the estate through their mother nor directly from their uncle. They were not within the provisions of the statute of 1830. 1 R. S. 754, § 22. B. inherited the estate directly from her brother and not through her father, and was capable of taking the same. It is a well settled principle of common law that the descent between brothers or a brother and a sister is immediate and the alienage of the father does not impede the descent between the children. The father is medium differens sanguinis, but not medium differens haereditatus. Collingwood v. Pace, 1 Vent. 413; Hobby's case, Cro. Jac. 539; McGregor v. Comstock, 3 N. Y. 408. This rule was not changed by the statute, which enabled the father of a decedent to inherit from him in default of lineal heirs. The statute changed the order of descent, but if no father is living, or if living he is incapable of taking by reason of alienage, then the brothers and sisters

take, not through the father but immediately from the decedent, as at common law. The brothers and sisters are respectively stocks of descent. Alienism is an impediment only where it comes between the stock of descent and the person claiming to take. And if any are incapable of taking by reason of alienage they are disregarded and the title vests in those competent to take, not tracing descent through an alien. Jackson v. Green, 7 Wend. 334; Orser v. Hoag, 3 Hill, 79; McLean v. Swanston, 13 N. Y. 535. Held, also, that the title of B. was not divested by Laws of 1874, ch. 261, which authorized aliens answering the description of heirs of naturalized persons, dying previous to 1874, to inherit from such persons. People v. Conklin, 2 Hill, 67; Heney v. Trustees of Brooklyn Ben. Soc., 39 N. Y. 333; Westervelt v. Gregg, 12 id. 202; Dash v. Van Kleek, 7 Johns. 477; Wood v. Oakley, 11 Paige, 400. Judgment affirmed. Luhrs, appellant, v. Eimer. Opinion by Andrews, J.

[Decided Feb. 24, 1880.

CARRIER OF PASSENGERS— EJECTION OF PASSENGER FROM RAILWAY TRAIN-OFFER TO PAY FARE. In an action against a railroad company for the alleged wrongful ejection of plaintiff, a passenger on one of defendant's trains, from the train, for the refusal to pay as much fare as was demanded by the conductor, it appeared that the train had stopped at a regular station and not for the sole purpose of putting plaintiff off. Before he was ejected plaintiff, and other persons in his behalf, after the train was stopped, offered to pay the full amount of fare demanded. Held, that evidence of this fact was admissible on behalf of plaintiff. If the stoppage had been made for the sole purpose of putting plaintiff off and he had rendered it necessary by a fractious refusal to pay the extra fare, he would not have been entitled to insist on continuing his trip after having occasioned such an interruption. But the station being a regular stopping place of the train, if, before being ejected, he or others in his behalf offered to pay the full fare, the conductor should have accepted it. Judgment affirmed. O'Brien v. New York Central & Hudson River Railroad Co., appellant. Opinion by Rapallo, J. [Decided Feb. 24, 1880.]

CRIMINAL LAW-ARSON IN FIRST DEGREE-EVIDENCE ACCESSORY VARIANCE-CONSTRUCTION OF

STATUTE.—(1) In the trial of one accused of being accessory in committing the crime of arson in the first degree, held, that it was not error to allow facts to be shown that tended to prove the guilt of the principal. Although the record showing the conviction of the principal is prima facie sufficient evidence of the fact and proof that he was properly convicted, the question of his guilt is not put entirely at rest. It has been said that it must be established by other means. Rex v. Turner Ry. & Moo. C. C. Res. 347; Ratcliffe's case, 1 Lewin, 121. See, also, People v. Buckland, 13 Wend. 592. The admission of such testimony is not within the reprehension in Coleman v. People, 55 N. Y. 81. It did not go to prove a crime upon the prisoner different from that for which he was on trial. Here the prisoner was to be convicted, if at all, on proof that he advised or induced the crime, and in the lack of direct evidence the people had the right to show what the principals did, the manner in which they did it, etc. (2) The indictment charged that the fire was set to and burned the house of K. The house contained a number of rooms all under the same roof with the same outside or party walls, with the same way out of doors and the same halls and staircases. K. was a tenant of but three of the rooms, and the fire was set and burned the realty only in other rooms of which the prisoner was tenant. The fire was set in the night time, and the building was usually occupied by one or more persons lodging therein at night, and K.

was one of the persons. Held, that the proof sustained the indictment, and a conviction of arson in the first degree was proper. People v. Orcutt, 1 Park Cr. 252; Shepherd v. People, 19 N. Y. 537; Mason v. People, 26 id. 200; People v. Butler, 16 Johns. 203. The case of Quinn v. People, 71 N. Y. 561, is not in conflict with this. That was a case of burglary, and there was no internal communication between the rooms where the act was committed and those of other tenants. The courts have held that an indictment for arson is good which lays the building set fire to as the dwelling-house of any one who occupies rooms in it, though he may not own it nor occupy all the rooms, and others may occupy other rooms and have also held that proofs of such facts and that fire was willfully set to and did burn a part of the edifice not occupied by that one will be sufficient to convict of arson in the first degree. (3) Under the provision of Laws 1853, ch. 337, as amended, Laws 1858, ch. 330, that this court, in cases coming from the General Sessions in New York, "may order a new trial if it shall be satisfied that the verdict of the prisoner was against the weight of evidence," etc. Unless a verdict is clearly and manifestly against the evidence the court will not set it aside. State v. Fisher, 2 Nott & McC. 150. The verdict must be presumed to be right until the contrary appears. United States v. Martin, 2 McL. 206. Though the case be considered as res nova here (Ferris v. People, 35 N. Y. 125), the testimony must be looked at to see if it brings the minds of the court to the conviction that the prisoner was guilty. But see O'Brien v. People, 36 N. Y. 276. affirmed. Levy, plaintiff in error, v. People. Opinion by Folger, J.

[Decided March 9, 1880.]

Judgment

HOMICIDE

MURDER -CHALLENGE TO JURY· WAIVER OPINION OF JURYMAN PLEADING COMMON LAW COURTS AND STATUTORY DEFINITIONS WHILE COMMITTING A FELONY — INTENT-CONFESSION -DEATH CAUSED BY FRIGHT DEATH BY MEANS UNKNOWN TO JURY.—(1) A prisoner on trial for murder challenged the array on the ground that various things required by the jury law to be done by various officials were not done at the precise time and in the exact mode pointed out by the statute to which the prosecution demurred. The court overruled the objection and sustained the demurrer at first, to which prisoner excepted. The court thereafter offered to set aside the array and re-commence the trial, but the prisoner refused to avail himself of that offer and insisted that the trial should proceed. Held, that prisoner precluded himself from insisting upon his exception to the ruling of the court sustaining the demurrer and must be regarded as having abandoned the challenge. The maxim volenti non fit injuria has in such a case a just and appropriate application. (2) A juror, in his voir dire, testified that he had formed an opinion from reading the newspapers; that he believed what he read in the newspapers until he saw it contradicted; that in that sense he had an opinion of the guilt of the prisoner; that he had no knowledge whether the statements he had read were true or not, and that his opinion was a contingent one based upon the supposed truth of the statements read. He also testified that he had no pride of opinion and had no doubt of his ability to set aside the opinion he had on entering the jury-box and decide the case according to the evidence submitted without being influenced by what he had read. Held, that under the statutes of 1872 and 1873, a challenge to him on the ground that he had formed an opinion, was properly overruled. (3) It has been settled that a specification in the statute of the cases which shall be deemed murder in the first degree, and the introduction of new definitions or divisions does not necessarlly require a change in the form of indictment, and

that a conviction under a common-law indictment of murder in the first degree may be had in any case where the offense proved is brought within either of the statutory definitions. People v. Enoch, 13 Wend. 159; People v. White, 22 id. 167; S. C., 24 id. 520; Fitzgerald v. People, 37 N. Y. 413; Kennedy v. People, 39 id. 245; Keefe v. People, 40 id. 348; People v. Thompson, 41 id. 1. (4) Certain counts of the indictment charged prisoner with grand larceny, and averred that while in the commission of this felony he feloniously assaulted the deceased, but did not set forth that the killing was intentional. Held, not necessary. The intent to kill is not a necessary ingredient in the crime of murder in the first degree under the third subdivision of the statute of 1876. The offense of killing is murder in the first degree, although the killing was casual and unintentional. Dolan v. People, 64 N. Y. 485; Buel v. People, 18 Hun., 487. (5) It is not sufficient to exclude a confession by a prisoner that he was under arrest at the time, or that it was made to the officer in whose custody he was, or in answer to questions put by him, or that it was made under hope or promise of a benefit of a collateral nature. 1 Greenl. Ev., § 229; Joy on Confessions, § 13; Rex v. Lloyd, 6 Cas. & P. 393; State v. Tatro, 50 Vt. 483. (6) The de- . ceased was found bound and dead in bed on the morning after a burglary had been committed in the room where she slept. The court charged that "if the deceased died from fright and the fright was caused by the violence of the prisoner, he is as responsible and can as properly be convicted under this indictment of murder in the first degree as if the immediate result of his act was suffocation. Held, not error. It was not necessary to convict that it should appear that the prisoner's actual personal violence was the sole and immediate cause of the death of deceased. If his violence so excited the terror of the deceased that she died from the fright and she would not have died except for the assault, then the prisoner's act was in law the cause of her death. (7) Held, that prisoner was properly convicted under counts charging an assault, and that the prisoner "in some way and manner, and by the use of some means and instruments to the jury unknown," deprived the deceased of life if the jury found that the deceased died from fright superinduced by the prisoner's violence. Commonwealth v. Webster, 5 Cush. 295; Commonwealth v. Fox, 7 Gray, 585; 1 Hale's P. C. 428; 2 Bush's Cr. L., § 634. Judgment affirmed. Cox, plaintiff in error, v. People. Opinion by Andrews, J.

CONSTITUTIONAL LAW-IMPAIRING STATE LAW, OBLIGATION OF CONTRACT REPEAL OF REMEDIAL STATUTE.- - By the charter of a bank in South Carolina, granted in 1812, the bills of such bank (which was established in the name and for the benefit of the State by the Legislature thereof), were made receivable for taxes. In 1868 the charter was repealed and provision made for winding up the affairs of the bank, and for the surrender and funding of the bills. In 1877 an act was passed by the Legislature providing a mode of determining whether bills offered for taxes were genuine and valid against the State, and for a trial of the matter by a jury. While this act was in force T. offered certain bills in payment of taxes due from him and complied with the provisions required by the act to obtain a trial of the question of genuineness, etc., of the bills. Before a trial was had an act was passed repealing the act of 1877, and providing that any person who was charged with taxes before the passage of the