county attorney in fact swore to the affidavit subscribed by him before the filing of the information is the oral statement of the clerk not under oath that such was the fact. 2. A change of venue in a criminal case, on account of the bias or prejudice of the inhabitants of the county against the defendant, can only be had when the existence of such bias or prejudice is shown to the satisfaction of the court. And where a large number of affidavits and counter affidavits are offered, in which opinions are expressed in general language pro and con upon the question, the means of knowing the general sentiment of the community, as disclosed by the several affiants, is an important factor in determining the value of their testimony. And, held, that the affidavits in this case do not disclose such bias or prejudice as entitled the defendant to a change of venue. 3. The cases of State v. Thompson, 5 Kas. 159, and State v. Dickson, 6 Kas. 209, are still authority on questions of continuance in criminal cases,for though the rule of the supreme court upon which they were based has been repealed, in lieu thereof there is an enactment of the legislature of the same import. 4. While evidence of the commission of one crime is incompetent on the trial of a party for another and distinct offense, merely for the purpose of inducing the jury to believe that defendant is guilty of the latter, because he committed the former, yet evidence which tends directly to show the defendant guilty of the crime charged is not rendered incompetent because it also tends to prove him guilty of another and entirely different offense. And generally where there is evidence of a conspiracy to commit a crime and of its subsequent commission, the state may, in support and corroboration thereof, show any act or conduct of the alleged conspirators intermediate the conspiracy and the crime, which apparently recognizes the existence of the conspiracy, reasonably indicates preparation to commit the crime or preserve its fruits, and that notwithstanding such -8ecial act of preparation was not the one discussed or agreed upon by the conspirators and is rendered actually fruitless and unavailing by the unexpected interferference of third parties, and also involves the commission of another and distinct crime. 5. During the trial the jury were sent, under charge of an officer, to view the place where the crime was committed. Neither the judge, the clerk, the attorneys, nor the defendant accompanied them. The record does not show that defendant applied for leave to accompany them, or made any objection to their going, or presented this action of the court as ground for a new trial: Held, no ground for reversing the judgment of -conviction, notwithstanding section 10 of the bill of rights provides that "in all prosecutions the accused shall be allowed to appear and defend in person or by counsel, to meet the witnesses face to face," and section 207 of the code of criminal procedure that "no person indicted or informed against for a felony can be tried unless he be personally present during the trial." 6. While the jury were in their room considering their verdict, one of their number being wanted as a witness was brought by the sheriff, under direction of the court, into the court room, sworn and examined as a witness, and then returned to his fellows in their room. Held, no error. 7. Where the court expressly charged the jury that they must be "satisfied of his (defendant's) guilt beyond a reasona ble doubt," the jury could not have been misled or the defendant prejudiced by a statement elsewhere in the charge that the presumption of innocence" will protect the defendant, unless the state has overcome it by such proof as satisfies the jury of his guilt." 8. Where the court, in reference to the testimony of an accomplice, advised the jury that it was unsafe to give it entire effect, "unless he is so far corroborated as that the corroborating testimony shall render his statements

credible," and that the corroboration "need not be as to everything to which he has testified, but if he be so far corroborated that the jury are convinced that he has told the truth," and also gives fully and clearly the reasons which render it unsafe to rely on such testimony: Held, no error, although it was not said in express terms that the corroboration should be as to some material fact. 9. Though there be three degrees of burglary named in the statute, yet where the facts stated in the information constitute only the crime of burglary in the second degree, and the defendant could not be convicted of any other degree of burglary under it: Held, that a verdict finding the defendant guilty as charged, and not specifying in terms the degree of burglary, is sufficient, and judgment can legally be pronounced upon it. Opinion by Brewer, J. Affirmed. All the justices concurring. State v. Adams.

DAMAGES-NEITHER EMPLOYEE NOR LEGAL REPRESENTATIVE CAN RECOVER FOR INJURIES UNDER SECOND SECTION OF DAMAGE ACT-EMPLOYER MUST KNOW, OR IN THE EXERCISE OF ORDINARY CARE, COULD DISCOVER DEFECT IN MACHINERY, TO ENTITLE INJURED EMPLOYEE TO RECOVER UNDER 3D SECTION OF ACT.-Plaintiff had judgment for $5,000, under instruction of court, against defendant railway company for damages for death of her father, Elliott, who was an employee of defendant, and was killed in consequence of the use of defective machinery by company, on a train of cars of which Elliott was a brakeman. Suit was brought under section 2 of Damage Act, c. 43 (1 Wag. Stat., p. 519). Held: (1) That the action could not be maintained under said section. The majority of the court (Henry, J., dissenting), adhere to the decision of this court, in Proctor v. R. R. Co., 64 Mo. 112, 4 Cent. L. J. 299. Plaintiff's right to recover is derived from the 3d section of said act, and in an action by one authorized to sue by that section, the jury may allow less than $5,000. (2) The suit can only be maintained by legal representative, when the deceased, if he had lived, could have recovered damages for his injury; and the same evidence as to the cause of injury is required in a suit by such representative that would have been required if he had survived and sued for the injury. Hence, an instruction predicating right of plaintiff to recover upon proof that defendant failed to provide sound and suitable machinery, if Elliott was not negligent, and was ignorant of the defect in the machinery, without the additional element that defendant was aware of the defect, or by the exercise of reasonable care could have discovered it, is erroneous. In the analogous case of an injury received by one through the incompetency of a fellow-servant, it is well settled by the English decisions that the employment of incompetent agents must be traced to the want of ordi. nary care on the part of principal. McDermott v. Pac. R. R. Co., 30 Mo. 116; Beaulien v. Portland Co., 48 Me. 291. And in cases of suits by employees for injuries received by the former, in consequence of defective machinery, the right of plaintiff to recover has been held to depend upon proof that the employer

knew of the defect, or by the exercise of reasonable care could have ascertained it. McMillan v. Saratoga & W. R. R. Co., 20 Barb. 449; Kergen v. West. R. R. Corpn. 4 Seld. 175; M. R. & L. E. R. R. Co. v. Barber, 5 Ohio St. 541; Shearman & Redf. Neg., § 99. Reversed and remanded. Opinion by HENRY, J.-Elliott v. St. L. &I. M. R. R. Co.

EVIDENCE-REGISTER'S CERTIFICATE OF ENTRY IN U. S. LAND OFFICE TO SHOW TITLE.-Plaintiff sued in ejectment for land in Polk County, and had judgment. Error alleged was admission in evidence of county plat of Polk County, to establish who entered the land from United States. The evidence was objected to for two reasons only: 1st. "That it was not properly certified." 2d. "That it had been changed since certified." The certificate was in these words; "United States Land Office, Springfield Mo., August 10, 1868. I certify that the within plat is a correct abstract of the records of this office. John S. Waddill, Register." Sec. 11, p. 561, 1st Wag. Ssat., provides: "Copies of any entry, or entries, or memoranda made on the books of the office of any register or receiver of any United States land office, certified to by said register or receiver to be correct, shall be received in evidence on the trial of any cause in any of the courts of this state." Held, 1. That it is evident the register used the word "abstract" in his certificate above, in the sense of "copy," as required by the statute, and that while the certificate might have been more formal, yet it is not to be regarded as insufficient. McClure v. McClurg, 53 Mo. 173. The manner in which the certificate s signed sufficiently shows that Waddill was register and signed the certificate in that capacity. No objection being made on trial, that no evidence was offered to show that Waddill was register at the time he made the certificate, none will be heard here. 3. The addition to the plat of other entries after the entry of the premises in controversy having been properly made, and certified, could, by no possibility, affect the validity of such entry. Affirmed. Opinion by SHERWOOD, C. J -Wilhite v. Barr.

BOOK NOTICES.

LAW OF MARRIED WOMEN IN PENNSYLVANIA. With a view of the Law of Trusts in that State. By CLEMENT M. HUSBANDS, of the Philadelphia Bar. Philadelphia: T. & J. W. Johnson. 1878.

The law of married women is in a very unsatisfactory state. Before the passage of the enabling statutes of late years, it was constantly presenting new and difficult questions, and the legislation of to-day has increased rather than lessened these difficulties. For this reason, the book before us will be very useful. The author's style is clear and pointed; and after a perusal of this book the reader will have a better idea of the rights, power and liabilities of married women as altered by statute, than he can readily obtain from other sources. What we have said here applies principally to the Pennsylvania lawyer, though the decisions cited and discussed by the author are not confined to that state. The view of the law of trusts, which covers about 100 pages, may be read with profit anywhere. The work deserves the favorable notice of the profession. The title, "Husbands on Married Women," may appear novel to others besides that correspondent of ours, who wrote to inquire whether the announcement of the book was a joke or not. It contains nearly 400 pages, and is excellently printed and well bound.

QUERIES AND ANSWERS.

QUERIES.

49. WILL-DEVISE-CONSTRUCTION.-In Pennsylvania, land was devised by A in this manner: "I give and devise to B and C, and to their heirs and assigns forever" (describing the real estate), "to have and to hold the same in trust to permit my wife to occupy and enjoy the same, and receive the rents and profits thereof so long so she may remain my widow. But should my wife marry again, her interest and claim in the said real estate shall cease and determine, and it shall remain in trust for the use of my child and grandchildren, during their joint lives and the life of the survivor of them; and at the decease of such survivor the same shall be sold, and the proceeds of the sale divided amongst the legal representatives of my said child and grandchildren." The will was executed in 1840. The widow never married. Two grandchildren were alive at the time of the execution of the will and death of the testator-children of the testator's son, who was dead. The testator's child, a daughter, after her father's death married and had one child. No further provision was made concerning the real estate. Would the child inherit directly from the widow? By the widow not marrying, did the child and grandchildren inherit the estate discharged of the trust? Does the child of the daughter at its birth become a joint owner with its mother and the other grandchildren, the widow having died after it was born? If the child of the daughter has a joint interest in the estate, and it should be the survivor of the two grandchildren and its mother, who will be the legal representatives referred to in the will? W.

ANSWERS.

No. 41.

(7 Cent. L. J. 39.)

The answer to this query in the JOURNAL of July 19th, is unsatisfactory. We question the soundness of the decision in West v. Rice, 4 Kas. 569. In that case the court say: "In making this application, the defendants offered proof fully complying with the provisions of § 62, p. 627, Comp. L. 62." This section is identical with section 81, quoted in question 41, but the syllabus shows that the defendants did not fully comply with that section. The mere statement under oath by defendant "that he can not, for the want of material testimony, which he has been unable and expects to procure," is not proof. If the defendant should merely state under oath, "I have a meritorious defense to the action," would any court deem that proof that he has a meritorious defense? Wills, in his work on Circumstantial Evidence (Marg. p. 2), says, "proof is that quantity of appropriate evidence which produces assurance and certainty." There is no proof at all in such an affidavit as that quoted in the syllabus of West v. Rice. If the justice has no discretion in such a case, he is simply bound to act on the judgment of the defendant, and not on his own judgment. S. M. B.

NOTES.

CHIEF JUSTICE ROBERTS, of Texas, has been nominated for Governor of that state-The Judges of the Supreme Court of Michigan have decided that, in cases where the court may be equally divided, they will deliver no opinions, but simply affirm the judgment under the statute. The step has been taken in order to prevent, as far as possible, the evil effects which arise

from the unnecessary parade of differences of opinion in the court of last resort. Another advantage will be to keep down, to this extent, the number of reports.The Attorney-General of Illinois has given an opinion that, under the constitution of that state, a notary public has no power to commit a witness for contempt in not obeying a subpoena.-The Association for the Reform and Codification of the Law of Nations, will open the sixth annual conference at Frankfort-on-theMaine, on the 20th inst. The Lord Chief Baron of England, president of the association, is expected to preside--An English Barrister, Mr. C. J. Tarring, has been appointed Professor of English Law, including International Law and Jurisprudence, in the University of Tokio, Japan. He will lecture in English, that having been adopted as the learned language at the University of Tokio-The acquisition of Cyprus will, it is said, open up a new and lucrative field for English lawyers. The crown advocate of Malta, Sir Adrian Dingle, L. L. D., has been appointed to assist General Wolseley in organizing the government of the island-At the Winchester assizes, in England, a few weeks ago, a widow of seventy years obtained £10 damages and costs against a widower of seventy-one, for breach of promise of marriage. The plaintiff appeared in the witness box in widow's weeds and a false front. The former were for her late husband, who died a year before the engagement to the defendant, and the latter, she said, was rendered necessary by her hair having all fallen off in consequence of the defendant's heartless conduct-A Frenchman named Courtade has found a new way to pay back rent. He had been sued for arrears, and threatened with expulsion. He insisted that the judge, the clerk, the bailiff and the landlord should examine the premises. These four men, with the landlord's wife, entered the yard together, and the tenant told them he was willing to pay up, only he wanted an extra grange and the well. He said: "I'll go and fetch the agreement," and went into the house. He brought back two guns and a pistol. "Now," he said, "we are on the battle-field; we must all die here; these are for you-this for me." And he pointed to the arms in his hands. "Come, come," said the judge, kindly, "this is childishness. Put down those arms." Courtade fired, and the judge and the landlord fell dead where they had stood. The clerk and the bailiff followed next. The landlord's wife ran into the house and locked the door. Courtade followed her and fired through the window. She had a child in her arms. Both fell. He then walked quietly to his own place and shut himself up. The house was soon surrounded. He tried to kill himself, but did not succeed. The four men in the yard were dead. The woman, thanks to her presence of mind, escaped. Courtrade tried to appear mad, but did not deceive the doctors. He is terribly afraid of dying now. He hopes to have the sentence of death commuted to hard labor for life.

WE have received from "W & B" a lengthy defense of the position assumed by them in the Query department of this Journal, Vol. 7, p. 39, and which was attacked by another correspondent on page 100 of the same volume. "Our statement was," they say, "that the constitution of a state from the moment it is superseded by a new one, ceases to have any vital force, the new one from that time alone possessing such esOf course we intended the operation with reference to the future. We adhere to that opinion. The State v. Barbee, 3 Ind. 258, does not militate against our proposition, but is an authority in its favor. The only points resolved by that case were, 1st, that the section of the new constitution relied upon to nullify the act under which Barbee was indicted, did not re

sence.

fer to such acts, having reference only to future and no past enactments of the legislature, and 2d, that the act under which Barbee was indicted, was expressly continued in force by the new constitution. The only cases in 4 Ind. that can have any bearing upon the question are Jones v. Cavins and Maize v. State, and neither of them directly or indirectly throw any light upon it and are not germane to it. Blackstone claims omnipotence for the British Parliament. But with us the doctrine never had a recognized existence. The American principle is that all sovereign power resides with and emanates from the people. In strictness there is no organized government with us that is sovereign. This is equally true of both state and National governments. The Federal Constitution expressly provides: "The powers not delegated to the United States by the constitution nor prohibited by it to the states are reserved to the states respectively or to the people.' So it is with the constitutions of the different states. Limitation is imposed upon the exercise of power by the several governments created by them, leaving the residuary mass with the people in their unorganized sovereign capacity. No constitution ever transferred to the government created by it, all the power of the people. If it did, such government would be sov ereign, and its will and discretion would be the measure of its powers. The people, however, possessing absolute sovereignty in the majesty of their might, can legally obliterate every existing municipal regulation, and in their stead enact new and different ones, restrained only by common right and reason. But all our governments are strictly only agents of the sovereign power, and their constitutions "merely the letter of agency." The judiciary has been specially commissioned to restrict their operations within the limit of the delegated powers, and it is the duty of the courts to do so in all proper cases. And this duty has been fearlessly performed both by, the Supreme Court of the United States and the supreme courts of the several states. The courts in adjudicating upon constitutional questions are governed by the same rules as in adjudicating upon the statutes. It is settled by a line of authorities that a statute of a prior legislature is repealed by implication by the statute of a subsequent legislature when they conflict, Spencer v. State, 5 Ind, 46, and cases cited. The same rules applies to a statute passed at the same session the latter controlling in case of conflict. Ham v. State, 7 Blkf., 314; Spencer v. State, 5 Ind. 48, and cases cited. The same rule has been adopted in adjudicating upon constitutional questions. Quick v. Whitewater Township, 7 Ind. 578. It will not be doubted that a statute repealed by a subsequent statute is completely eliminated, and has no longer force at law. By a parity of reasoning, a constitution that has been repealed ceases at once to have any further vital power. It may be necessary to refer to the defunct constitution to determine questions that arise. But in all such cases reliance can not be had upon any vital power to exercise after it was abrogated. For instance: If the Legislature of Indiana, while the Constitution of 1816 was in force, had enacted a law not competent for it to do under that instrument, such law will be held unconstitutional and void, whenever any question may arise upon it, not however because the living power of the constitution continued to operate after it was superseded. We think we may safely claim that the courts have uniformly held, and the same may be regarded as legal maxims, the following: 1. The constitution of a state is the fundamental and permanent law of such state. 2. Nothing contravening the constitution of a state can have the force of law within such state. 3. The constitution of a state from its very nature in the exercise and operation of the sovereign powers possessed by it is both exclusive and singular."

The Central Law Journal.

SAINT LOUIS, AUGUST 16, 1878.

CURRENT TOPICS.

IN Pennsylvania, among the duties of the prothonotary is that of making searches for judgments, and giving his certificate of the result of such search to any person applying and tendering the legal fee. According to the authorities in that state, for the accuracy and truthfulness of his search and certificate the prothonotary is responsible to the person for whom it is made, and to no others: Com. v. Harmer,5 Am.L. Reg. 214; Houseman v. G. L. B. Ass., 31 P. F. Smith, 256. The reasons for this distinction are given in Com. v. Harmer. The officer owes a single duty, which is to him who employs him to search and certify. If a new duty to another arises, it must be because of a new demand and a new privity. If without this new privity successive liabilities can arise to others, the cause of action necessarily changes, both as to the time of its origin and the measure of the loss, and thus the statutory limitation as to official bonds will be postponed from time to time, and a variable standard of recovery arise with each succeeding claimant who holds the certificate. This is both harsh and unjust to the officer, whose liability is thus made to continue onward without new compensation or a fresh search.

A fresh search may reveal the omitted incumbrance, and thus give the officer a locus pœnitentiæ, as well as an equivalent compensation for the new risk to be assumed. In a very recent case, Siewers v. Com., 35 Leg. Int. 314, another exception was made by the supreme court of that state, which held that where a certificate was given to A, (the borrower of money), and B (the lender's agent) not relying on it, went with A to the officer, who re-affirmed its correctness, and at B's request made a new search and returned the certificate to him, B, saying it was correct, there was both privity and liability to the lender on the part of the officer, and he was, therefore, liable for damages caused by its incor

rectness.

In Faire v. State, 1 South. L. J. 348, lately decided by the Supreme Court of Alabama, Vol. 7-No. 7.

the prisoner who had been convicted of murder appealed to the supreme court, on account of the order of the court below directing shackles to be placed on his feet during the second day of his trial. It appeared that while the trial was in progress the prisoner's counsel discovered that the prisoner was chained, and called the attention of the court to it. The prisoner's arms were free, but there were clasps on his ankles connected by chains eighteen inches long and about one and a quarter inches in diameter. To this request of his counsel the court replied, that it had been done upon representations made by the sheriff, and proposed to have the sheriff sworn as to the cause of the shackling. To this counsel objected, and asked that the chains should be removed, which request the court refused. In the supreme court it appeared that the request was made by the sheriff privately, though in open court, for the reason that the prisoner the day before had threatened that if he were found guilty he would never come out of the court house alive, but that he would escape, or that the officers would have to shoot him, and that the sheriff knowing his character was persuaded that he would attempt to carry out his threat. On hearing this the judge ordered the sheriff to take any necessary precautions to prevent any attempted escape, but not to place the irons on his hands, nor to allow the jury to see what was done. The supreme court refused to reverse the conviction, holding that while it ought to require an extreme case to justify the placing of shackles or manacles upon a prisoner while undergoing trial, yet whether it is necessary or not should be left to the discretion of the trial court, and can not be reviewed on appeal. An exhaustive examination of the law on this question will be found in the opinion of Bakewell, J., in State v. Kring, 1 Mo. (App.) 439. In this case, the prisoner having on a former trial made an assault upon a bystander, he was brought into court the second time ironed upon the wrists. The trial judge refused to order their removal. After a review of the English authorities the learned judge said: "It was no sufficient reason for compelling the prisoner to stand his trial for his life with gyves upon his wrists and his hands bound together. Officers of the court could have been placed around him if he was considered dangerous to by-standers, or he

might have been placed in an enclosed space within the bar of the court, as was the English custom. Any proper precaution against escape, or to guard against danger of violence from a prisoner, may be taken during the trial. These may be such as will not deprive his counsel of free communication with him, and will not tend to inflict physical torture upon the prisoner, or to deprive him of the freest use of his limbs, and of all his faculties in that moment of extreme jeopardy. But it is certainly not permitted to fetter his hands, and if he is brought into court in irons he is entitled to have them removed whilst actually on trial; and it is error in the court to refuse to order the prisoner to be unbound," This decision was affirmed by the supreme court, in State v. Kring, 64 Mo. 591.

In Wright v. First National Bank of Greensburg, 18 Alb. L. J. 115, decided in the United States Circuit Court for the District of Indiana, it was held that an assignee in bankruptcy might sue a national bank for double the amount of usurious interest received by it from the bankrupt, an assignee in bankruptcy being within the term "legal representatives as used in the 30th section of the banking act, and the right of action given by said section being a "claim" or "debt" which passed to the assignee under the bankrupt law. Tiffany v. National Bank, 18 Wall. 409, was an action by a trustee to recover the penalty given by the statute. The plaintiff recovered, but his capacity to maintain the action seems not to have been directly raised. In Crocker v. First National Bank, 3 Cent. L. J. 527, the precise question raised in this case was considered, and it was held by Dillon, J., that the assignee was the "legal representative" of the borrower within the meaning of the banking act, and as such could maintain the suit whether the right of action vested in the assignee under the bankrupt law or not. In Tiffany v. Boatman's Association, 18 Wall. 375, the assignee in bankruptcy was allowed to recover usurious interest which had been paid by the bankrupt in violation of the statutes of Missouri. In Meech v. Stoner, 19 N. Y. 26, it was held that an assignee could maintain an action to recover money lost at faro, under a statute which gave the right of action

to the loser. See, also, Carter v. Abbott, 1 B. & C. 444, and Gray v. Bennett, 3 Metc. 522. In this last case the assignee of the insolvent debtor was allowed to recover threefold the amount of usurious interest paid to the defendant, that being the amount allowed by the Massachussetts statutes. In Bromley v. Smith, 2 Biss. 511, it was held by Miller, District Judge, that the assignee could not maintain an action to recover the penalty given by the statute. In Barnett v. Muncie National Bank, in the Circuit Court of the United States for the Southern District of

Ohio, a similar ruling was made by Justice Swayne, and the late Circuit Judge Emmons, in an oral but unreported opinion. To the same effect is Nichols v. Bellows, 22 Vt. 581. In the case at bar, GRESHAM, J., said: "It is true that rights of action for torts to the debtor's person, such as assault and battery, false imprisonment, malicious prosecution, libel and slander, do not pass to the assignee. While it must be conceded that under the decision of the supreme court this is an action, in part at least, to recover a penalty, yet there are reasons why claims of this kind should vest in the assignee which do not apply to rights of action for damages growing out of mere torts to the debtor's person. In the right of action given by the banking act the bank exacts and receives from the borrower more than the law allows as a fair compensation for the use of its money. In this illegal way the bank gets into its possession part of the borrower's estate, money which should go to the creditors of the bankrupt borrower. This demand and receipt of illegal interest by the bank may have materially contributed to the bankrupt's downfall. If the assignees are not the legal representatives' of the bankrupt, within the meaning of the 30th section of the banking act, and the right of action never passed to them under the bankrupt act, then, unless the suit has been barred, the bankrupts may sue for and recover for their own benefit, when, perhaps, they have already received their full exemption and have been discharged from all their obligations."

MR. JUSTICE CLIFFORD and his wife are at Portland, Me., where they have just celebrated their golden wedding, surrounded by three sons, two daughters and twenty grandchildren.