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them. The case Whitcomb v. Whiting, Douglas, 652, disapproved. In United States v. Wilder, 13 Wall. 254, it was held that when a debtor admits a certain sum to be due by him, and denies that a larger sum claimed is due, a payment of the exact amount admitted cannot be converted by the creditor into a payment on account of the larger sum denied, so as to take the claim for such larger sum out of the statute. In Exeter Bank v. Sullivan, 6 N. H. 124, a like view of the law as that in Bell v. Morrison, 1 Peters, 362, was announced by the Supreme Court of New Hampshire. In that case it was said: "If one joint debtor admits that he owes the debt, and says nothing to the contrary, it may be inferred from his silence that he is willing to pay; but his silence can furnish no ground to presume that another who is absent is willing to pay." This was followed, in the same State, by Kelly v. Sanborn, 9 N. H. 46, and Whipple v. Stevens, 2 Foster (N. H.), 219. The Supreme Court of Pennsylvania, in Levy v. Cadet, 17 S. & R. 126, held that payment on account, or an acknowledgment, by one of two or more joint debtors, will not take the case out of the statute as to the others, and this has been followed, in the same State, by Coleman v. Forbes, 10 Harris (22 Penn. St.),156, Searight v. Craighead, 1 Penn. (Pen. & W.) 135, Houser v. Irvine, 3 W. & S. 345, Shoneman v. Fegley, 7 Barr (Penn. St.), 433, and Bush v. Slowell, 71 Penn. St. 208. The Supreme Court of Indiana, in Yandes v. Lefavour, 2 Black. 371, held that an acknowledgment of a debt made by one partner, after the dissolution of the partnership, is not sufficient to take a case out of the statute of limitations as to the others. The Supreme Court of Alabama, in Lowther v. Chappell, 8 Ala. 353, held, under this section, "a payment by one of several joint debtors, before the statute has completed a bar, will not prevent the completion of the bar as to the others, at the expiration of the time within which the statute required suit to be brought on the original evidence of debt, relied on to sustain the action." This was followed in the same court by Myatts & Moore v. Bell, 41 Ala. 222; Knight v. Clements, 45 id. 89. In Beloit's Exrs. v. Wayne, 7 Yerger, 534, decided at the March term, 1835, the Supreme Court of Tennessee followed the doctrine of Bell v. Morrison, and this has since been followed by Muse v. Donelson, 2 Humph. 166. In Palmer v. Dodge, 4 Ohio St. 21, the same result was reached by the Supreme Court of Ohio. More recently in Kansas, Nebraska and Florida, the doctrine of Whitcomb v. Whiting is repudiated, and that of Bell v. Morrison followed. Steele v. Soule, 20 Kan. 39; Mayberry v. Willoughby, 5 Neb. 368; Tate v. Clements, 16 Fla. 339. Like reasoning will also be found in Setette v. Jennings, 1 McMullen, (S. C.) 297; Foute v. Bacon, 24 Miss. 156; Briscoe v. Auketell, 28 id. 361. The earlier decisions in New York followed Whitcomb v. Whiting. See Johnson v. Beardslee, 15 Johns., 3; Patterson v. Choate, 7 Wend. 441. But in 1849 the Court of Appeals of that State, in Van Keuren v. Parmelee, 2 N. Y. 523, overruled these cases after an able review of the authorities, and held that the presumed agency of a partner ceases with the dissolution of the firm, and that after dissolution an acknowledgment or promise to pay by one of the partners will revive a debt against the firm which is barred by the Statute of Limitations. Shoemaker v. Benedict, 11 N. Y. 176; Winchell v. Smith, 18 N. Y. 558. Kallenbach v. Dickinson. Opinion by Scholfield, J.

not

PENNSYLVANIA SUPREME COURT ABSTRACT.

JUDGMENT-PURCHASER WITHOUT NOTICE TAKES FREE FROM EQUITIES OF THIRD PARTY.-The purchaser in good faith and without notice, of a judgment for value, takes it freed from the equity of a

third party to have its proceeds applied for his benefit. It is true that the assignee of a judgment or mortgage takes it subject to all the defenses of the obligor against the obligee, but it is equally true that he does not take it subject to the secret equities of third persons. This is very familiar doctrine, and has been repeatedly enforced by this court. In Davis v. Barr, 9 S. & R. 140, it was said: "It certainly is not a general principle of equity, that a purchaser for valuable consideration of the legal title to any kind of property should take it subject to an equity of which he had not notice." "But with any agreement between the original parties inconsistent with the purport or legal effect of the instrument, the assignee has nothing to do. No such agreement is within the purview of the act; and the assignee is not bound to call on the obligor for information about matters the existence of which he has no reason to suspect, the necessity of inquiry being limited, as I have said, to want of consideration and set-off." In Mott v. Clark, 9 Barr, 404, it was said of the assignee of a bond and mortgage: "He takes it subject to all the equity of the mortgagor, but not to the latent equity of a third person. To subject him to such an equity he must have express or constructive notice at the time of the assignment." The same doctrine has been held in Taylor v. Gitt, 10 Barr, 428: Wetherill's Appeal, 3 Grant, 281; McConnell v. Wenrich, 4 Harr. 365; and Twitchell v. McMurtrie, 27 P. F. Smith, 383. Appeal of Mifflin County National Bank. Opinion by Green, J. [Decided June 20, 1881.]

MASTER AND SERVANT-NEGLIGENCE-SERVANT

USING DANGEROUS ANIMAL AFTER KNOWLEDGE OF DAN

GER.- In an action against a street railway company to recover damages for injury from the kick of a mare owned by the company it appeared that plaintiff was a porter in the employ of the defendant, and had charge of the mare in question. He had full knowledge of her habit of kicking. Held, that he could not recover. A master does not warrant his servant's safety. He however is under an implied contract with those whom he employs to adopt and maintain suitable instruments and means with which to carry on the business in which they are employed. This includes an obligation to provide a suitable place in which the servant, being himself in the exercise of due care, can perform his duties safely, or without exposure to dangers that do not come within the reasonable scope of his employment. Cazger v. Taylor, 10 Gray, 274; Seavor v. Boston & Maine R. Co., 14 id. 466; Gilman v. Eastern R. Co., 10 Allen, 233; Coombs v. New Bedford Cord Co., 102 Mass. 572. A servant however assumes the risk naturally and reasonably incident to his employment. He is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself. Hayden v. Smithville Manuf. Co., 29 Conn. 548; Whart. on Neg.. § 217. Inasmuch as the relation of master and servant cannot imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to take of himself, he cannot complain if he is injured by exposure after having the opportunity of becoming acquainted with the risks of his employment and accepts them. Whart. on Neg., §§ 214 and 217; 1 Addison on Torts, § 255. No duty was imposed on the company to inform him what he so well knew, nor to forbid his grooming the mare. He voluntarily assumed the risk, and continued to expose himself to a well-known danger. He cannot now cast on his employer a liability for the injury which he thereby suffered. It matters not that the master did know the vicious habits of the mare. It is the knowledge of the servant which withholds from him a right of action. Harkins v. N. Y. Cent. R. Co., 65 Barb. 129; Frazier v. Pennsylvania

R. Co., 2 Wright, 104. Green and Coates Streets Passenger Railway Co. v. Bresmer. Opinion by Mercur, J. [Decided May 2, 1881.]

TITLE TO GROWING TIMBER SOLD.-By an agreement for the sale of growing timber the vendees were to remove the timber within nine years from the date of the agreement, and as to certain parts of the land, no timber was to be cut until satisfactory security was given by the vendees for the amount of timber they proposed to cut. Held, that as no immediate severance was in contemplation, according to McClintock's Appeal, 21 P. F. Smith, 365, the timber remained real estate, subject to the lien of judgments against the vendor. Wilson v. Douglas. Opinion by the

court.

[Decided June 22, 1881.j

RECENT ENGLISH DECISIONS.

CONTRACT

FOR SALE OF GOODS -BREACH AUTHORIZING RESCISSION BY OTHER PARTY. - Contract for the sale of 2,000 tons of iron at 428. per ton, free on board; delivery November, 1879, or equally over November, December and January, at 6d. per ton extra. During November the vendor wrote to the purchaser and his broker asking whether he would take the whole or one-third in November. The purchaser's broker replied, first, that the purchaser had not decided, and afterward, that the purchaser would be obliged if none were delivered till December. The vendor then wrote (on the 1st December) to the purchaser saying that the contract was cancelled. In an action by the purchaser against the vendor for nondelivery of 666 2-3 tons of iron in December, 1879, and of 666 2-3 tons of iron in January, 1880, held (Brett, L. J., dissentiente), that the refusal of the plaintiff to accept any portion of the iron in November entitled the defendant to rescind the entire contract. Hoare v. Rennie, 5 H. & N. 19, affirmed. Per Brett, L. J. The failure of the plaintiff to accept the first delivery did not disentitle him to insist upon the other two being made. Hoare v. Rennie, 5 H. & N. 19, was wrongly decided. Judgment of Manisty and Field, J. J., reversed. Ct. of Appeal, April 1, 1881. Houck v. Muller, Opinions by Bramwell, Baggallay & Brett, L. J. J. 45 L. T. Rep. (N. S.) 202.

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INSURANCE LOST. A voyage policy on the cargo of a vessel, lost or not lost, which vessel has unknown to both parties arrived at the port of destination, ond landed her cargo undamaged before the making of the policy, is a good contract of insurance, and the underwriter is entitled to the premium which the assured has agreed to pay. A. insured a cargo by the Alata, lost or not lost, from P. to R. Subsequently, and after the Alata was due at R., A. effected a re-insurance of the cargo with B. for the same voyage and risk at a high premium. At the time of the re-insurance the Alata had arrived at R. and discharged her cargo undamaged, but both A. and B. were in ignorance of this. In an action by B. for the premium which A. had agreed to pay, held, that B. was entitled to recover; (1) The voyage having commenced under the conditions necessary to make the underwriters liable, the risk attached, although the chance of loss during the performance of the voyage was at an end. (2) (Bramwell, L. J., dubitante.) As the risk attached, it followed that A. had an insurable interest, his interest as soon as the second policy attached being precisely the same as that of the cargoowner under the first policy. Ct. of Appeal, April 1, 1881. Bradford v. Symondson. Opinions by Brett and Bramwell, L. JJ. 45 L. T. Rep. (N. S.) 364.

MARINE POLICY-VESSEL LOST OR NOT

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case, 1 Mer. 572, applies to the case of a deposit with a banker, notwithstanding that his lien extends over the whole account. B. deposited the title deeds of real estate in the hands of the appellants, with a written memorandum, to secure the then present and future general balance of his account with them. He afterward sold a part of the real estate to the respondent. At the time of the sale his account with the appellants was overdrawn. The appellants had notice of the sale to the respondent, and the respondent had constructive notice of the appellant's charge. Before the payment of the final installment of the purchase-money B. paid to the appellants sums amounting in the aggregate to more than the amount of his debt to them at the date of the sale, but they had made further advances to him after that date, and the whole balance of the account was never turned in his favor. Held (affirming the judgment of the court below), that the respondent was not liable for such further advances as a charge on the estate. Hopkinson v. Rolt, 9 H. L. C. 514; 5 L. T. Rep. (N. S.) 90, followed. House of Lords, June 14, 1881. London & County Banking Co. v. Ratcliffe. Opinions by Lord Chancellor Selborne and Lord Blackburn. 45 L. T. Rep. (N. S.) 322.

CORRESPONDENCE.

THE FEDERAL COURTS.

Editor of the Albany Law Journal:

A county judge's scheme for remodelling the Federal courts, published in vol. 24, page 522, of your JOURNAL, would be a great improvement upon the antiquated system established for other times and ill-adapted to the multiplied business activities and the litigation necessities and requirements of a Republic rapidly advancing to a population of sixty millions.

The general government is divided into three separate and distinct departments-executive, legislative and judicial. In the differences which occurred at the time and after the formation of the present Constitution, it was a cardinal principle of the Jeffersonian school of statesmen that each of these departments in discharging its responsibilities should be independent in its views and construction of constitutional power, without yielding its convictions to another, and what they called a co-ordinate department. Hence President Jackson claimed the right, and exercised it, of deciding upon constitutional questions according to his own understanding, without reference to the previous adjudications of the Supreme Court. On the part of the Federalists it was contended that the executive and legislative branches of the government, upon matters relating to fundamental law, should be guided by and abide the decisions of this tribunal as a final and definitive settlement. Vide "Inquiry into Origin and Course of Political Parties in the United States," by the late Ex-President Martin Van Buren. After all the arguments to be advanced by the school of Jefferson to the contrary, the necessity existing for an authoritative tribunal of comparative if not absolute infallibility, to determine problems of this character, must be conceded. It is obvious that the executive department ought not to have the appointment of the judiciary, and that the department which is intended to give rest and repose to the country after great interState and other agitations, ought not to be the creature of, or to be made by, another and separate branch of the government. As well might the president also appoint the members of Congress, and thus control the legislative branch of the government. Each department should be independent of the other in its make-up, but should not be independent in the sense that it should act wholly on its own views as to the

constitutionality of issues presented, as maintained by He was one of the most finished and attractive speakJefferson, Van Buren and others.

The plan proposed would lessen if not remove the force of the objection of the anti-Federalists of former days, and of the Republican party more recently in the Dred Scott case, to the infallibility and omnipotence of the Federal Supreme Court in its decisions, and the jealousies entertained by them of its illiberal, unpopular, conservative and consolidating tendencies, and at the same time somewhat relieve the executive from the immense and ever-increasing number of officials to be appointed by him, one of the burdens of his exalted position. The marshals also may as well be appointed by the district judges as the clerks of

the court.

Let therefore the Federal judiciary as well as the president and the Congress, come in the first instance from the people. Federal judicial legislation and decision is equally as important as Federal legislative enactment. Let the United States district judges be elected in their several and respective districts, and the judges to preside in the appellate courts be ap pointed by the District Court judges. And let the appellate court judges appoint the Federal Supreme Court judges, according to the plan published by you, above referred to, and let the term of office of the judges be not to exceed ten years, and we shall have a final and authoritative tribunal created of the people, for the people and by the people, to settle all constitutional questions, in which all must acquiesce, and to which all must submit. PACIFICUS. January, 1882.

OBITUARY.

THREE distinguished lawyers have died recently.

The venerable CHIEF JUSTICE PIERPOINT, of the Vermont Supreme Court, was born in Litchfield county, Connecticut, in 1806, and died at Vergennes, Vermont, on the 7th inst. He removed to Vergennes in 1832. He has been a member of both houses of the Vermont legislature, and in 1857 was elected a justice of the Supreme Court. In 1865 he became chief justice, and continued in that position until his death. He❘ was a lawyer of learning and industry, and his name has long been highly respectable in the legal annals of his State. -RICHARD H. DANA, of Boston, has recently died at Florence, Italy. He was born in Cambridge, Mass., in 1815. His ancestry was distinguished. His great-grandfather was a leader in the Revolution, his grandfather was Chief Justice of Massachusetts, and his father was a learned lawyer and one of the pioneers of America's literature. He himself was distinguished as an author as well as in the law. His most popular works in literature are "To Cuba and Back" and "Two Years Before the Mast." In the law he edited Wheaton's International Law, and a manual of sea usages and sea laws, contributed to legal reviews, and lectured at Harvard. He also wrote papers on points of international law. He was a prominent politician, one of the founders of the Free Soil and Republican parties, and was nominated by President Grant as Minister to England, but was not confirmed. He was a man of a radical and aggressive nature and utterance, and passed most of his life in conflicts. His life illustrates an inheritance of talents not unprecedented in Massachusetts, and of which the Adams family is another striking example.-EDWIN W. STOUGHTON died at New York city on the 7th inst. He was born in Vermont in 1818, and removed to New York in 1837. He attained eminence as a lawyer, and was engaged in many prominent causes, especially in relation to patents and mines. He was one of the Republican counsel before the Electoral Commission.

ers of this State, and wrote many articles of merit on public topics. He was appointed by President Hayes Minister to Russia in 1877, but resigned in a year.

NOTES.

THE American Law Review for January contains the

following leading articles: A National Codification of the Law of Evidence; its advantages and practicability, by William Reynolds; Is a sub-lease for the by Charles R. Darling. residue of the lessee's term in effect an assignment? - The Federal Supreme Court have made a shocking decision, namely, that the wearing of a pair of corset steels by a lady is a public use," and "a use open to public view." Egbert v. Lippman, ante. The governor of Massachusetts has ap

66

pointed Hon. Marcus Morton chief justice in place of Mr. Justice Gray. This is an eminently fit appointment. - There were hard causes in the time of Moses. See Exodus, xviii, 23, 26, "and they judged the people Moses, but every small matter they judged themat all seasons; the hard causes they brought unto selves." These "hard causes" were probably what we now call "difficult and extraordinary,"

A correspondent calls our attention to the following: "We have a court here in England called the Lawless Court, curia sine lege, which like the Marshals of France is governed by no settled law. The proceedings are carried on by whispering: they have no pen and ink, but only a piece of charcoal, and every suitor that appears not, forfeits double his rent every hour." 1 W. Bl. 243-4, Jacob Law Dict., Camd. Britt. 441. This is an extract from the argument of Blackstone in Robinson v. Bland. He cites Jacobs as above. The passage in Jacobs is as follows: "Lawless Court. A court held on King's Hill, at Rochford in Essex, on Wednesday morning next after Michaelmas Day, yearly, at cock-crowing, at which court they whisper and have no candle, nor any pen and ink, but a coal; and he that owes suit or service there, and appears not. forfeits double his rent. This court is mentioned by Camden, who says that the servile attendance was imposed on the tenants for conspiring at the like unseasonable hour to raise a commotion. Camd. Britan. It belongs to the honour of Raleigh, and is called lawless because held at an unlawful hour, or quia dicta sine lege. The title of it is in rhyme, and in the court rolls runs thus:

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The Albany
Albany Law
Law Journal.

ALBANY, JANUARY 21, 1882.

CURRENT TOPICS.

HE New York Times charges us with "slurring

brook and Attorney-General Ward; with "repelling attacks on the judiciary without regard to their merits;" and with denying "certain facts which are as well substantiated as any thing that is of public record." The only tangible charge the Times has ever made against Justice Westbrook is that he held court in Jay Gould's private office. This of course was intended to convey the idea of a covert holding of court and the making of illegal orders. We "broadly denied," upon the best authority in the world, that Justice Westbrook ever held court in Jay Gould's private office. The Times now does not reiterate this precise charge, but it alleges that he rendered the decisions the "combination wanted in their own private offices in this city." Well, we now deny this charge, and if the Times can prove its assertion, let it do so. But nowhere does the Times deny that all the orders were made publicly and above board, upon legal notice, in open court, upon strenuous argument by the most distinguished counsel, pro and con. Unable to face down the evidence of the propriety of Justice Westbrook's orders afforded by the fact that Judge Blatchford and the New York city General Term have made just such orders, in the same matters, the Times now admits that it "cannot say he transcended his power in so doing," or that "these decisions were in violation of any law.” The late attorney-general has publicly denied the Times' charges with an explicitness and frankness that must carry conviction, as against a sensational newspaper reporter's mere suspicions. The Times' accusations, founded on nothing but gross misstatements and gratuitous suspicions, have gone all over the country, and every day the Times continues to copy the remarks of the press writers who take it for granted that the Times had some ground for its bold assertions, and calling for all sorts of vengeance on the judge and the attorney-general. The Times still parades these compliments to its services as a public reformer, and within a few days has had the unfairness to assert that the receivers appointed by Justice. Westbrook were "men plainly in the interest of the corrupt combination." This is said of Judge Dillon and Mr. Hopkins, and without any allegation that they have done any thing wrong! We predicted that the Times would not apologize for its unjust attack on a judge and an attorney-general. The result verifies our prediction. It not only does not apologize, but reiterates in a modified form, compelled to admit at the same time that the judge did not transcend his power and that his decisions were not in violation of any law Now we reiterate, they were made publicly, in a proper place, after due debate VOL. 25.-No. 3

and deliberation, and have been confirmed by precisely similar decisions by other judges with whom the Times has no fault to find. We leave it to the profession to determine who is "slurring over " matters, especially when the Times declares that its "accusations have not been controverted, and the conduct and motives of Ward and Westbrook still await the vindication of which they sorely stand in need." The Times is uncandid. It knows that its accusations have been controverted and explicitly denied. It is in the attitude of a scandal-monger who should assert that Mrs. So-and-so had been seen in a suspicious place and in her opinion was no better than she should be, and when confronted by an indignant denial, should admit that she could not say that the lady had done any thing wrong, but that she awaited a vindication on her behalf. The Times ought to be above such injustice. It has such reputation and authority that it can well afford to apologize when it finds itself wrong. It should reflect that a word from it against the character or motives of a judge may impress an indelible stain. A judge's character is like a woman's-idle gossip may ruin it, and the judge can demand "investigation" no more than the woman. In this particular instance however we have very high authority — the Times' own- for believing that Justice Westbrook has not "transcended his power" and that his decisions were not in violation of any law." Of course a judge is not responsible for the character of business brought before him. He frequently has to decree foreclosure in an oppressive case, to turn out a tenant at the demand of a hard-hearted landlord, to enable one attorney to take advantage of another's negligence, stupidity, or error of judgment. But here we are relieved from any compulsion to believe that the judge has done any voluntary wrong, by the Times' enforced concession that the orders were all regular and lawful! Now we would like to hear an explanation from the Times of its charge that the Supreme Court lugged in Mr. Justice Hunt to help to decide a case that he never had heard.. And while we are upon this general subject, we will venture to advise Justice Westbrook to let the New York judges hereafter attend to their own affairs. There is plenty of business for him in his own district, and he has done more than his share of business for the New York judges, and has frequently got more abuse than honor out of it. It is natural that suitors should want him to do such business, but it is quite unreasonable to expect that he will do it. Give the Times' "sensation" man a chance at Judges Davis, Brady, Daniels, and Blatchford.

We have elsewhere referred to Mr. Bishop's new edition of his great work on Criminal Law. This seems a more appropriate place to speak of an idea suggested by him in the preface to that work as follows: "The establishment, by the National Bar Association, or some other association or individual able and willing to bear the expense, of a bureau to investigate, by the help of trained experts, every

A correspondent writes us criticising Justice Davis' charge on insanity in the Coleman case. That charge, it will be remembered, did nothing more than emphasize the test of capacity to tell right from wrong in respect to the act. One can imagine a case where the right and wrong test would appa

book relating to the law, and especially every new one, and report in writing to the profession, simply and only as to its bona fides. If it is a reprint of a foreign work, is it correctly done, with name of author, dates, and the like, true to the fact? If it professes to be original, how far is it so? Are due credits given? Are the rules of our written lan-rently be unjust; as for example, where a person guage concerning quotation marks followed? Are there concealed piracies? Did the author alter from other books any part of what he put forth as his own? Was the work done personally by the ostensible author? If a book of reported cases, did the judges, in their opinions, deal fairly with counsel, text-writers, and one another? And let all other questions, pertinent to the main inquiry, be answered." This is certainly a very ingenious and searching series of questions, but after all, cui bono? It is perfectly understood that some textbook writers make up their books mainly with the scissors, and without giving "due credit" or employing quotation marks; that others boil down the mass of authorities and concisely express the sense; that learned judges sometimes make up very learned opinions chiefly from the briefs of counsel, without acknowledging the source of their learning. Very few writers on law are or profess to be original. Mr. Bishop is one of the very few unmistakably original, and yet we think it would not be very difficult to find a great many passages in his works, not in quotation marks, which are substantially a reproduction of brief syllabuses or concise expressions of judges. It cannot well be otherwise, and to expect an acknowledgment of sources of information other than the citation of the authorities for the statements is a refinement of honor and an im- | practicable excess of literary honesty, which Mr. Bishop will vainly look for in Kent, Story, Greenleaf, Parsons, Cooley, or Dillon. There is really very little "original" writing in text-books except Mr. Bishop's prefaces.

But Mr. Bishop's suggestion reminds us of another made a good while ago - we forget by whom, but we think, by Mr. Field—for the establishment by consent of a uniform system of digesting and indexing. As a practical reporter we feel that such a consensus would be of immense advantage to the profession and a great relief to reporters. No reporter is uniformly faithful to his own system and theory of classification, and occasionally a case sui generis arises which seems to defy classification. To decide under which of several possibly appropriate heads to put a decision, or to determine when a subordinate branch has acquired importance enough to entitle it to an independent heading, is frequently a puzzling question. A convention of reporters might agree on a uniform plan, to be announced and pursued in all forthcoming reports and digests, which would save considerable vexation and solve many uncertainties. Under the best possible system, there will be a considerable class of debatable cases which the reporter will be driven to the humiliating expedient of putting under the head of "Actions."

suffering from hydrophobia, or some similar disease, feels the homicidal impulse coming over him, begs his friends to restrain him, and in his rage kills his best friend. But after all such cases are extremely rare, and the difficulty even in these is to determine whether the action is genuinely uncontrollable by the will. Hysterical women are quite apt to think that they cannot refrain from strange and unpleasing antics; and yet generally a little judicious severity brings them to their senses. We once knew a hysterical young lady who was given to raising a commotion in public places, and who was uniformly restored to normal action by the threat of standing her on her head. It is so much easier sometimes to yield to an insane impulse than to resist it that the afflicted person takes the easier course. We have had many doubts in past times whether the right and wrong test is not too severe, but we have settled down into an acceptance of it, on the ground that under any other test there is no safety for society. Necessity is the law of society. If imprisonment for life were substituted for death in such cases we should have no grain of doubt about it. But it is said that this test would render half the inmates of our lunatic asylums responsible for murder. Well, so they are; - that is the short answer. Our correspondent urges: "But a graver objection to such a test is that it shuts out that large class of cases where a person not only knows an act to be wrongful, but does it because he knows it to be so. Says a recent writer: 'In every asylum we may see patients who are given to tearing their clothes, and who know as well as any one that what they do is wrong, and they delight in doing it because it is wrong.'" We should suppose that such persons are the fittest of all subjects for punish

ment.

Such lunatics are punished for tearing their clothes, and they generally stop the practice. But the argument that one who murders, not only knowing it to be wrong, but because he takes delight in doing such wrong, should not be punished, is decidedly original!

It has been thought by most writers that this State has stood doubtful on the question of burden of proof of insanity in criminal cases. The doubt, if there has been any, was resolved by the decision of the Court of Appeals, handed down last Tuesday, in People v. O'Connell. The trial court charged that the prisoner is presumed innocent until proved gnilty, and that if there is a reasonable doubt of his guilt he must be acquitted; but that there is a presumption of sanity, and the prisoner is deemed responsible until he convinces the jury by evidence that he was insane; and refused to charge that if there is a reasonable doubt of his sanity or insanity, he is entitled to the benefit of it, or that he is not

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