the completion of the sale of the mines and the organization of the proposed company. But it was dependent only so far, that if the sale of the mines had failed without the fault of either, neither could have enforced it against the other. It was not, however, so far dependent that either might, by his voluntary act, defeat the proposed sale, and thereby relieve himself of the obligations imposed by the dependent contract.

The parties having contracted with reference to the proposed sale of the mines and organization of the corporation, and their contract being dependent upon the completion of that scheme, it was implied in that contract that each of the contracting parties would, in good faith, carry out the scheme, so as to put himself in position to perform his dependent contract.

It is true Shotwell had a right, as between himself and the proposed purchasers of the mines, to withdraw his offer to sell at any time before it was accepted in writing by all those to whom it was made. But, as between himself and Burton, he had no such right. To do so was a violation of the contract between them.

But his counsel argue that, although it may be true he thus violated his contract with Burton, still he is not to be taken to have been the author of his own inability to perform his agreement. To support this proposition they introduced evidence conducing to prove that Peter and Smith, two of the proposed purchasers, had an understanding or agreement with Kelsey, one of the associates in the enterprise, at or before the time when they signed the acceptance of Shotwell's offer, that they were not to be compelled to guarantee the bonds to be issued by the proposed corporation to Shotwell, and that they would have refused to do so. Upon these facts counsel argue that Peter and Smith would have refused, and could not have been compelled, to perform their agreement, and that, therefore, it never was in Shotwell's power to perform his part of the contract with Burton, and never would have been if he had not withdrawn his offer.

He admits that he became dissatisfied with his contract with Burton, and withdrew his offer to sell the mines in order to defeat it, and it may well be doubted whether a court of equity ought, at his instance, to enter into an inquiry whether the contract for the sale of the mines could have been enforced against Peter and Smith. It is, however, entirely clear that no contemporaneous verbal understanding or agreement between them and their associate, Kelsey, could have defeated Shotwell in an effort to enforce the contract against them.

But it is doubtful whether, from the nature of the contract, it could have been enforced specifically in all its provisions. There can, however, be no doubt but Smith would have accepted the offer, and thus completed the contract for the sale of the mines, if the offer had not been withdrawn. His acceptance, notwithstanding the withdrawal, is conclusive of that fact. If, then, it had not been withdrawn, Shotwell could have tendered performance on his part, and if the purchasers had refused to perform their part of the contract, they might

have been compelled to accept the title and pay the value of the stock and bonds they had con-tracted to issue to Shotwell, and to discharge the lien of $16,000, as they had contracted to do.

This would not have enabled Shotwell to comply with his contract with Burton; but we certainly will not, in order to relieve Shotwell from a contract he has deliberately violated, presume that the purchasers of the mines would have subjected themselves to the consequences of a refusal to comply with their contract, rather than voluntarily to perform it by the organization of the proposed corporation, and the issue of the bonds and stock contracted to be delivered to Shotwell. He is not in an attitude in this record to escape from the obligations of his contract upon conjecture and speculation. He has not done more than manifest a bare probability that if he had done what he might and should have done, he would still have been unable to perform his agreement; and we can not do otherwise than hold that his inability is the result of his own conduct.

His counsel next insist that he can not be compelled to perform the contract because of a want of mutuality.

The general doctrine seems to be, that an executory contract can not be specifically enforced by one party, unless at the time of its execution it iscapable of being so enforced by either party. Fry on Specific Performance, sec. 286. And this rule applies as well to the remedy as to the obligation of the contract. Cooper v. Penar, 21 Cal. 404.

That there was the requisite mutuality in the obligation of the contract in question, is clear. Was there mutuality in the remedy? It is contended there was not-first, because, as claimed by counsel, a court of equity will not specifically enforce a contract for the transfer of stock in a corporation; and secondly, that Shotwell never having had the stock contracted to be transferred, it wasimpossible to enforce compliance with his contract to transfer it.

Whatever may be the rule in regard to the specific enforcement of a contract respecting the shares of a private corporation, when such shares constitute the sole and entire subject-matter of the contract, we think there can be no doubt that a contract to exchange such shares for real estate may be enforced at the instance of either party.

The chancellor can not decree the specific performance of a contract to pay money for a mere chattel, by compelling the purchaser to accept the title and pay for it; but he will enforce a contract to pay money for land by compelling the purchaser to receive the title and pay the price. It is the land that gives jurisdiction to the court to enforce the contract. So in this case, the chancellor, having jurisdiction to enforce the contract in respect to the real estate, would have had jurisdiction, at the suit of Shotwell, to compel Burton to accept the stock and convey the real estate; and at the suit of Burton, to compel Shotwell to accept the title and transfer the stock.

That Shotwell did not have the stock did not render the contract unenforceable. We have seen

that his failure to get it is to be taken to be the result of his own conduct in withdrawing his offer to sell the mines, in violation of his duty under his contract with Burton. He is, therefore, in the same position he would have occupied if the scheme for organizing the corporation had been carried into execution, and the stock had been issued to him, and disposed of so as to put it out of his power to transfer it to Burton. In that case, there can be no doubt but he would have been compelled to accept the conveyances of the real estate, and pay the value of the stock in, cash.

The contract describes the real estate in Kentucky as a brick house and lot " situated in Louisville," on Main street, between Floyd and Preston, the same bought by Burton of Mrs. Gray, about March, 1871; also two cottages on Floyd street, and two cottages on Washington street, built by Burton on the land above referred to as bought of Mrs. Gray."

In the deed tendered by Burton, there is reserved to Mrs. Louisa S. Gray, Burton's vendor, and her heirs forever, the free and uninterrupted use and enjoyment of an alley-way four feet wide, and extending back from Main street forty-three and onehalf feet, on the west side of the lot. The same reservation is contained in the deed from Mrs. Gray to Burton. Burton's contract bound him to convey to Shotwell all he had purchased of Mrs. Gray, and, in our opinion, his deed is a compliance with his contract. The evidence shows that Shotwell examined the property before he entered into the contract, and that the alley-way was then open and in use under the reservation, and he must be presumed to have bought with a knowledge of its existence.

This brings us to the consideration of the criterion of recovery.

Shotwell having, by his own act, put it out of his power to comply with his contract to transfer the stock, is liable for its value. The contract shows that the parties estimated the mines, which were to be the basis of the stock, at $216,000; to be paid $16,000 in cash, $100,000 in bonds bearing ten per cent., and so secured as to be equal to cash, and $100,000 in the shares of the corporation. The mines were to be stocked at $300,000. Practically, Shotwell was to sell two-thirds of the mines for the equivalent of $116,000 in cash. Estimated on this basis, the cash value of the mines was $174,000, and the cash value of $55,500 of stock was $32,190; and for that sum, with interest from the commencement of this suit, Burton is entitled to judgment.

In response to the suggestion of Shotwell's counsel, that the deeds not having been recorded within the time prescribed by law after their acknowledgment by Mrs. Burton, will not bar her potential right of dower, we remark that no judgment should be rendered in conformity to this opinion until the deeds are re-acknowledged by her. Judgment reversed, and cause remanded for further proceedings in conformity to this opinion.

WHEN a lawyer draws a conveyance, he may be said to "work like a horse."

JUDGE DILLON ON THE FEDERAL JUDICIAL SYSTEM.

At the annual dinner of the Chicago Bar Association held on the 27th ult., Judge Dillon, in reply to the toast of "Lawyers on the bench and at the bar," spoke as follows:]

"MR. PRESIDENT AND GENTLEMEN: In briefly responding to the sentiment just offered to a guest who is personally a stranger to the most of those present, and who is here almost by accident, my first duty is to express my cordial acknowledgments for the kindness and warmth with which I have been received. Your hospitality aud generous welcome has touched my heart and filled it with thankfulness. I beg also to express my satisfaction that this great city has in active and useful operation an association of the members of the bar, organized and sustained for the improvement of the laws, to secure their just and pure administration, and to advance legal and judicial science.

"Justice is the highest interest of man on earth, and the members of the legal profession are its natural guardians. The state rests upon law, and it can have no other solid foundation; and the laws of the land have no other end than to secure enlightened, equitable, and even-handed justice to all persons, natural and corporate, rich and poor, high and low, in equal measure, without fear or favor. If the laws are suffered to fall into decay, if their administration is permitted habitually or generally to fall into unworthy hands, there remains for the state but one alternative -reform or death.

"Such an association as this does not exist for its members alone. In this country our material inter

If

ests are so closely interlaced as not to be marked or defined by municipal or state lines. Whatever good fruit you secure for yourselves, you inevitably secure for all. The republic of law knows, indeed, no boundaries, and, whether we live on the ocean, on the lakes, on the Missouri, or in the shadow of the mountains, we are equally interested in all that pertains to the highest good of our profession and of the country. De Tocqueville is right. The lawyers are the great conservative and conserving power in the country. Peter the Great ever made the remark attributed to him in one of the regular toasts, it was doubtless when he saw the swarm of lawyers in Westminster hall. His astonishment is natural enough. But his threat to hang one of the only two lawyers in his country is the barbarous utterance of an autocratic ruler of barbarians. The Czar of all the Russias has not in the vast expanse of despotism which lies between Siberia and the Crimea, one such monument to the glory and freedom of his country as Westminster hall. That is the product of a free and enlightened people, with courts and juries and lawyers.

"On such occasions as this. Mr. President, it ought not to be forgotten that there are many causes in this country which operate with great force to produce an imperfect system of jurisprudence; and therefore the duty of the lawyer and the judge to guard, as far as possible, against such a result, is a duty of imperative obligation. I shall mention only one or two of these causes. One of them grows out of our duplex system of state and federal government, and is unavoidable. Forty state courts of last resort, and as many federal courts sitting in the same states with concurrent jurisdiction, can not, without great learning and infinite care, build up a harmonious and symmetrical system of jurisprudence. The difficulty in the way of the judges is seriously increased by the burdensome and exacting pressure of their duties. They lack, in general, neither learning nor industry; their chief want is the want of time.

"I shall not speak of myself, but in illustration of

what I am saying I may, perhaps, fitly refer to the nature and extent of my judicial labors. The other circuits are in the same situation. The lawyers who practice in Judge Drummond's court need no information concerning his great labors.

"The trans-Mississippi federal circuit embraces seven states, and extends in an unbroken reach of territory from the British possessions on the north, te Louisiana and Texas on the south-from the Mississippi on the east, to and including the Rocky Mountains on the west. It comprises the States of Minnesota, Iowa, Nebraska, Kansas, Missouri, Arkansas and Colorado. In each of these states there are two terms a year, and in one of them four terms, making sixteen terms annually. With the exception of Arkansas and Colorado, I have for the last eight years attended twice a year the terms of courts in each of these states and in Arkansas, and in Colorado since its admission, invariably once each year, and sometimes twice. The distances actually traveled are immense-not less than ten thousand miles a year. The distance from St. Paul, where one can almost cast a stone across the Mississippi, to Arkansas, where the stream has broadened into a mighty and majestic river, bearing the commerce of twelve states, and on whose lordly bosom hostile fleets have contended, is vast. And the distance from the great city of St. Louis to where Denver serenely sits, sentineled and begirt by the lofty and snow-clad peaks of the Rocky Mountains, is scarcely less.

"The dockets are crowded with causes, original and appellate, of great variety and importance-civil and criminal, at law and in equity, in admiralty and in bankruptcy. And this is only typical of the condition of the other circuits. With so much work, and with so little time for deliberate and, sedate consideration, mistakes must be numerous. But the fault lies not so much with the over-worked judges, as with the faulty system which imposes such vast labors upon them. The state judges generally are almost equally overburdened. Hence we inevitably have a constantly in-. creasing mass of decisions, state and federal, many of which must be erroneous, and which, while standing as precedents, bear pernicious fruits.

"Judges, state or federal, do not forget the weighty advice of old Bulstrode, so quaintly expressed in the dedication of his second volume, in the time of the commonwealth, over two hundred years ago—' that as laws are the anchors of the republic, so the judicial reports are as the anchors of the laws, and therefore ought to be well weighed before put out. Judges do not forget this advice, but the trouble is that they find it impracticable, for want of time, to follow it. The result is that the supreme court has nine hundred cases on its calendar, and, with all the industry of its judges, is three years in arrears.

"Feeling, as I have felt for years, the force of the evils, private and public, which inevitably spring out of this condition of things, I have learned with extreme satisfaction that, so far as the federal courts are concerned, an eminent citizen of this state, who for many years adorned its bench, until he was transferred to the Supreme Court of the United States, and who is now a senator in congress, is actively lending the weight of his great character and ripe experience to a needed

reform.

"And the only practical point to the remarks which I am having the honor to make in this distinguished presence is, that I trust the Bar Association of this imperial city will pronounce its judgment in favor of the proposed legislation of Senator Davis, and warmly aid him in securing its adoption."

A JURY of five lawyers tried a case in the Superior Court of New York city last week by consent, all the regular Jurors being engaged in other cases.

NOTES OF RECENT DECISIONS.

DIVORCE-CHILDREN CAN NOT SET ASIDE DIVORCE OF PARENTS.-Baugh v. Baugh. Supreme Court of Michigan, 1 Monthly Jurist, 573. Opinion by CAMPBELL, J. No matter how much the interests of children may be affected, they have no legal right that will enable a court of equity to set aside a decree of divorce at their instance, on the ground of collusion on the part of their parents..

"CIVIL DAMAGE" LAW-JOINT LIABILITY OF SELLER AND OWNER OF PROPERTY-PROXIMATE AND REMOTE CAUSE-VARIANCE.-Schroder v. Crawford. Appellate Court of Illinois, 1 Monthly Jurist, 574. 1. A saloon keeper and the owner of the building where the same is kept are jointly liable for injuries arising in consequence of sales of intoxicating liquors made by the former. 2. Where a person keeps a dram shop in the vicinity of several railroads, and causes the intoxication of a person by the sale or gift of intoxicating liquors, and, in consequence thereof, such person is run over and killed by the cars, held, that the result being one which might reasonably or probably follow as a result of such sale, the seller will be held responsible, and that the cause of action is not too remote. 3. The plaintiff averred that deceased met his death "without any fault on the part of said railroad company," but introduced no proof to sustain such allegation. Held, that in torts the plaintiff is not required to prove all the allegations of his declaration. If enough is proved to support the charge it is sufficient.

LIQUOR LAWS-ILLEGAL SALE BY WIFE-AUTHORITY OF HUSBAND. State v. McDaniel. General Sessions of Deleware, 5 Rep. 8. A person prosecuted for selling liquor without license can not defend by showing that it was sold by his wife in a part of the house used by her as a store. "The legislature has not yet, and if the pease of families and the welfare of society are to be considered, it will be a long time before it will take away the husband's control of his own family. It is absolutely necessary that some one should have control of the household; and in all ages, and among all nations, this authority has been reposed in the husband. And the legislature in authorizing married woman to do business on her our account, never meant to enfranchise her, or to interfere with the domestic relations in any manner whatever. And if the defendant in this instance had so willed, he might have shut up the house and forbidden his wife to sell liquor or anything else in it. Or he might have carried the liquor into the street and poured it out without let or hindrance by his wife, or any one else."

EXHIBITION OF WILD ANIMALS ON STREETSFRIGHTENING HORSES-LIABILITY OF CITY.-Little v. City of Madison. Supreme Court of Wisconsin, 1 Monthly Jurist, 537. Opinion by COLE, J. If a municipal corporation license a person to exhibit on its streets bears or other things tending to frighten horses, it will be held responsible to persons for damages caused by the frightened horses. It is the duty of municipal corporations tokeep their streets free from all obstructions and nuisances. If the corporation, by its license, sanctions the exhibition, or its officers know that its streets were thus obstructed, it will be held sufficient knowledge to make it liable.

CONTRACT BETWEEN SCHOOL DIRECTORS AND TEACHER-DISMISSAL OF LATTER FOR ALLEGED INMEASURE OF DAMAGES. Ewing v. School Dircetors, Appellate Court of Illinois, 3d District. 1 Ch, L. J. 140. Opinion by HIGBEE, C. J.-1. A was employed by B to teach a school for eight months for $313.75. The written contract provided that in case A was dismissed from the school by B for any violation of the contract, then the certificate of A should

be annulled, and A should not be entitled to receive any compensation from and after such annulment or dismissal. A taught the school under this contract three and one half months, and was then dismissed by B for alleged incompetency, and paid for the time taught. A. brought suit against B to recover for the balance of the time mentioned in the contract, and recovered a judgmedt for one dollar. The principal question in the case was whether A was incompetent within the meaning of the contract and the school law, and therefore improperly dismissed. No evidence was offered tending to show that A engaged in any other business after A's discharge and before the expiration of the time A. had agreed to teach, nor that A could by any effort have obtained similar employment in that neighborhood. On the contrary, the testimony showed that A. was ready at all times before the contract expired, to teach, but that A had made no effort to get another school, because it was in the middle of the term when the dismissal occurred, and there were no other -schools then wanting teachers. Held, that under this evidence, if the jury found for A at all, it was their duty, by law, to have assessed A's damages at the amount fixed by the contract for the full term of eight months. 2. An instruction to the jury, "that if they believe from the evidence that A was dismissed from the school in question by B for incompetency, then A is not entitled to recover any compensation from and after such dismissal," was calculated to mislead the jury, and should not have been given. Neither the school law nor the contract authorized B to dismiss A unless A was in fact incompetent. A was not barred of a right of recovery simply because B thought A incompetent, if in fact A was competent at the time. Incompetency, under such circumstances, is a fact to be found by the jury from all the evidence before them. EASEMENT-LIMITATION OF BY ACTS OF GRANTEE. -Onthank v. L. S. & M. S. R. R. New York Court of Appeals, 16 Alb. L. J. 429. Opinion by EARL, J. Plaintiff, by written instrument, gave defendant a right to lay and maintain across his land a pipe to convey water from a spring. The instrument did not specify the -size of the pipe or where it should be laid. Held, that by laying pipe of a particular size across plaintiff's land, defendant fixed the size, and was not entitled thereafter to replace it by pipe of a larger size. "After the grantee had once laid his pipe and thus selected the place where it would exercise its easement thus granted in general terms, what was before indefinite and general became fixed and certain, and the easement could not be exercised in any other place. This is confessedly so in reference to rights of ways granted in similar terms. Washb. on Easem. 225, 240; Wynkoop v. Burger, 12 Johns. 222. And the same rule of construction was applied to the right to lay an aqueduct from a spring granted in general terms, in Jennison v. Walker, 11 Gray, 423. In that case Bigelow, J., said: 'Where an easement in land is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right is to be exercised can not be definitely ascertained, the grantee does not thereby acquire a right to use the servient -estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and definite course, with the full acquiescence and consent of both parties, it can not be changed at the pleasure of the grantee.' 'This rule rests on the principle that, when the terms of a grant are general or indefinite, so that its construction is uncertain and ambiguous, the acts of the parties contemporaneous with the grant giving a practical construction to it, shall be deemed to be a just exposition of the intent of the parties'. It is clear, then, that the

right to lay the pipe under plaintiff's grant was fixed by the act of the grantee and the acquiescence of the grantor to the place taken, and it can not be exercised in any other place across plaintiff's land. But why is not the right also fixed for the same reasons as to the size of the pipe and the quantity of water to be diverted? I can perceive no reason for confining the operation of this rule to the mere place where the right is to be exercised. There is the same reason for applying it to the entire right granted. In Bannon v. Angier. 2 Allen, 128, the same learned judge again said: 'Where a right of way or other easement is granted by deed without fixed and definite limits, the practical location and use of such way or easement by the grantee under his deed, acquiesced in by the grantor at the time of the grant, and for a long time subsequent thereto, operate as an assignment of the right, and are deemed to be that which was intended to be conveyed by the deed, and are the same in legal effect as if it had been fully described by the terms of the grant.'"

BOOK NOTICE.

HUBBELL'S LEGAL DIRECTORY, for lawyers and business men, containing names of Attorneys throughthe United States and Canada; a Synopsis of the Collection Laws of each State; Synopsis of the Bankrupt Law, etc. J. H. HUBBELL, Editor and Compiler. New York, 24 Park Place. 1877.

The eighth annual volume of this directory is an improvement on the former volumes, and is a valuable book of reference for both the lawyer and the business man. It contains a list of attorneys, a concise synopsis of the laws of each state and territory and of Canada, relative to the Collection of Debts, Execution and Acknowledgment of Deeds and Wills, Taking of Depositions, Insolvent Law, Descent of Property, Interest, Tax Law, Mortgages, Claims against Estates, etc. It likewise contains a Digest of the Bankrupt Law, and a list of the state and federal courts, the times when and places where held, and the names of the judges and officials. The digest of the state laws appears to be prepared with accuracy, and to be as complete as possible. The book contains 778 pages, and is well printed and bound.

CORRESPONDENCE.

THE DEGREES OF MURDER.

To the Editor of the Central Law Journal:

I was impressed with the clearness with which the law of murder is stated in "A Review of the Law of Murder and the Gassert Case, by Judge W. C. Jones of the Criminal Court," published in the Missouri Republican of the 17th inst. To my mind the decisions of our Supreme Court in defining the distinction between murder in the first and second degrees, are in much confusion, and it is refreshing to meet with a statement of this distinction in so clear and forcible a manner as Judge Jones has presented it. But it is somewhat chilling, even to one who has not made "the criminal law a study of a life-time," to see how the judge applied these principles in practice in the Gassert case.

It is sufficient for the present purpose, without giving the definition of murder at common law, to state that "Murder is distinguished from other kinds of killing, by the condition of malice." Whar. on Hom., sec. 3.

By the Missouri statute, murder is divided into

two degrees. Every murder not of the first, is of the second, and the judicial mind should have no trouble in drawing the correct distinction between them in practice, as well as in theory. I do not know that I can add to the force of the judge's theory, but before I confront his theory with his practice I may be permitted to express some thoughts on this distinction.

Every killing of a human being with malice, is murder, and every murder is in the second degree, except where committed by means of poison; by lying in wait; in the perpetration, or attempt to perpetrate a rape, arson, robbery, burglary or other felony, or which shall have been a wilful, delibrate and premeditated killing. In practice, in ninety-nine cases out of a hundred, the indictment is for a wilful, deliberate and premeditated killing, and the confusion, if any exists, has arisen in cases thus charged. An unlawful, malicious killing is murder in the second degree. An unlawful, malicious, wilful and deliberate killing is murder in the second degree; but an unlawful, malicious, wilful, deliberate and premeditated killing is murder in the first degree. And the court which instructs a jury, in a case where a wilful, deliberate and premeditated killing is charged, that they may find guilt in the first degree, upon any facts short of a wilful, deliberate and premeditated killing, does violence to any reasonable construction of the statute; and that, too, in a case where a human life may be the forfeit of the blunder. The language of the statute is, "or by any other kind of wilful, deliberate and premeditated killing." In State V. Joeckel, 44 Mo. 234, the court instructed the jury on this distinction as follows: "Where a homicide has been committed, and there was an intent to do the act, then, in the absence of any circumstances of excuse, justification or extenuation recognized by law, it is murder in the first degree. But if the party killing did not intend to kill, but assaulted and killed with malice, * then the offense is murder in the second degree." Here, if I can understand the language employed, the distinction is sharply drawn by the court, and stated to be the intention with which the act was done. The wilful" of the statute is preserved, but the terms "deliberate" and "premeditated " are as wholly ignored as if they had no place in the section; and Judge Wagner, speaking for the court in the case, says: "The instructions state the law with clearness and precision, and point out the distinction between murder in the first and second degrees." This case has been the rule of murder trials, to a large extent, since 1869, while, to my mind, it presents a palpable disregard of a plain provision of the statute.

It does not detract from the force of the argument that our Supreme Court has approved an instruction that "the deliberation and premeditation necessary to constitute murder in the first degree, may be inferred from the circumstances connected with the killing; and if they existed for a moment, as well as an hour or a day before the killing, it is sufficient." State v. Hays, 23 Mo. 287. Certain it is, that these facts must exist, and the jury must find, and that from the evidence, that they did

exist in a particular case, before they can find guilt in the first degree.

Judge Jones, in his review, says: "A homicide, which at common law would be murder, will, under our statute, be murder in the first degree, when it is done wilfully, deliberately and premeditatedly. To constitute the crime, these three elements are as necessary as the element of malicea necessary ingredient of all murder." After elaborating these principles, and illustrating them with great force, the judge applies them to the Gassert case, and after stating the facts of the case and stating that the jury were instructed as to the law of murder in the first and second degrees, says: "The instruction as to murder in the second degree being as follows, to-wit:

"The distinction between murder in the first degree and murder in the second degree, lies in the intention with which the act is done. Where a homicide is committed, and there was an intent to do the act, then, in the absence of any circumstances of excuse, justification or extenuation recognized by the law, it is murder in the first degree. But if the party killing did not intend to kill, but assaulted and killed with malice, as that term is known to the law, then the offense is murder in the second degree." It will be observed that this instruction is, mutatis mutandis, the same which was approved in State v. Joeckel, supra; but how Judge Jones can conclude that the rules of law which he recites justify the instruction as given, is past my comprehension. In the recital of the rules of law, it is stated, in substance, that in murder in the first degree there are three elements, viz: wilfulness, deliberation and premeditation, as essential as malice, which, he says-and in which I concur-is a necessary ingredient of all murder; and yet he tells the jury that the distinction lies in the intention with which the act is done. Can it be that the judge will insist that an intent to kill includes the elements wilful, deliberate and premeditated? Such a position, it is conceived, would be wholly untenable. Wilful-governed by the will, without yielding to reason. Deliberate-to balance in the mind, to weigh, to consider. Premeditate-to think on and resolve in the mind beforehand, to contrive and design previously; as to premeditate, theft or robbery-Webster. The instruction says the distinction lies in the intention with which the act was done. Intention means intended, designed, and not accidental, and it may be admitted that the term exhausts the element" wilful "as used in the statute, but it wholly ignores the other two elements, "deliberate" and "premeditated," each of which is as essential to murder in the first degree as malice itself. I have not had the advantage of an examination of the record nor of the decision of the Supreme Court in the Gassert case; nor do I known what instruction was given in respect to murder in the first degree; but I submit that the instruction above set out, while it is claimed to be in relation to murder in the second degree, undertakes to set out the distinction between the two degrees, and to state the elements of each, and, as such, it is fatally erroneous and cruelly dangerous to him whose life depends