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general and periodical, individual and occasional, to 469. Mount Pleasant v. Beckwith, p. 514.– On the excounteract the principle of caducity; that there should tinction of a town and the division of its territory be revision to counteract the principle of obsolescense, among others, the latter are proportionally liable for its and that revision is neither dishonest, nor inexpedient debts. People v. Weaver, p. 539; Williams v. Weaver, nor unprecedented; that the revising power of a court is p. 517.-National bank taxation cases. See 21 Alb. L. J. unfit and inexpedient; that there is need of special | 210. Kidd v. Johnson, p. 617.-A trade-mark is assignboards of revision, and that obsolete charities may be able on a sale of the manufactory of the article to converted into more suitable form, and directed which it has been affixed. National Bank v. Graham, against evils more suitable for relief. It considers the p. 699.-- A National bank is liable for the grossly negquestion whether the State should especially favor ligent loss of special deposits received with the acquicharitable endowments, by pecuniary assistance escence of its officers. See 21 Alb. L. J. 311. Cox v. through grants directly to them, and grants for super- National Bank, p. 704.— A bill of exchange accepted vision, and by remission of taxation upon them; by without specifying any place of payment is payable at relaxation of legal rules affecting the constitution of the address of the drawee as named in the bill. them, tho acquisition of property by them, the protection of their property, and the administration of it.
NOTES. It concludes with a statement of the reforms still needed in England, in the laws relating to charities, in
IE American Law Review for August contains a the way of supervision, central and local, restriction
long article on Homicide in Self-defense, by Seyand revision.
mour D. Thompson. - Justice Dillard of the SuFrom this synopsis of the plan of the essay and
preme Court of North Carolina may serve as of its contents it is seen that it is both practical and example of Democratic habits and personal independ
ence. interesting. It is well written, and seems to come
It is related that the late Judge Kerr once saw
"Hi!" said Kerr, “how from a study of the subject and thorough acquaintance Dillard in a second-class car. with it. The subject is philosophically treated. The
comes it a man of your cloth is caught in a secondbook may be read with profit by all concerned in the
class car?” “Because there is no third-class," quietly care and administration of endowed charities, whether replied Judge Dillard, and asked for a match to light public or private, or in the framing or executing of
his pipe.- Exchange. Our judges are still more demolaws affecting those matters. We commend it to the
cratic - they go afoot. attention of the student of social science, and suggest
It seems not unlawful to assault a ghost. We learn that the leisure of the lawyer will find interest in it.
this from a Newburyport newspaper. The facts in the
case appear to be as follows: One morning a company 100 UNITED STATES REPORTS.
of young men thought it would be a good joke to This volume, containing decisions of the October
throw a stone into the chamber window of one of the term, 1879, is perhaps the most important ever issued
citizens of the town of West Newbury. A member of in this country. The following is a summary of the
the family, however, overheard the young fellows plotcases of general interest: Railroad Co. v. Fraloff, p.
ting mischief, and hurrying home informed the old 24.- Concerning passengers' baggage ; the Russian gentleman of the plan, and he, quickly donning a porlady's lace case, where a recovery of $10,000 was sus
tiou of his under-garments only, hastened to put himtained, three judges dissenting. See 20 Alb. L. J. 409.
self in ambush. When the young rioters came along Cowell v. Springs Co., p. 55.- A condition in a deed
ho sprang out, and all ran but one, who stood up and avoiding it if intoxicating liquors are retailed as a
knocked the old gentleman down twice. Whereu pou beverage on the premises valid. See 20 Alb. L. J.
a warrant for assault was issued, and when brought 487. Holden v. Trust Co., p. 72.- After maturity of a
into court the defendant pleaded that “he thought it contract for payment of money, interest follows the
was a ghost, and he wasn't going to run from it." statutory and not the conventional rate. Trade-Mark Accordingly his honor discharged him. Cases, p. 82.- Holding the Federal trade-mark regis
We have recently seen what the Kansas courts think tration law unconstitutional. See 20 Alb. L. J. 417.
of the restlessness of the small boy. Now, in State v. Dow v. Johnson, p. 158.-- Jurisdiction of State courts
Prizer, 49 Iowa, 531, we find what the Iowa courts as to oflicial acts of Federal military officers. See 21 think of a certain idiosyncracy of lovely woman. The Alb. L. J. 188. Savings Bunk v. Ward, p. 195.- Liability court there said: “The reputation of a man or woman of attorney to vendee upon certificate of title to vendor.
does not always accord with the true character of the See 21 Alb. L. J. 206. Hough v. Railway Co., p. 213.- individual. The good and pure are often traduced by Servant not liable for contributory negligence in work
bad men and women, and suffer in reputation by reing with defective machinery which master has prom- ports invented and circulated through motives having ised to repair. See 21 Alb. L. J. 129. Oates v. National
their origin in enmity, malevolence and hate. The Bank, p. 239.— Note transferred as collateral security reputation of women for chastity is especially exposed for antecedent debt, in consideration of extension of
to such assaults. A scandal having its origin in falsetime of payment, held for value. Tennessee v. Davis, hood or imagination has no limit to its circulation, p. 257.- Jurisdiction of Federal courts over criminal
and the unfortunate subject of tho slander will usually acts by Federal revenue collectors. See 21 Alb. L. J.
hear no voice from her own sex lifted up in her defense. 271. Strauder v. West Virginia, p. 303; Virginia v. A direct and confidently asserted charge of impurity Rives, p. 313; E.x parte Virginiu, 339; the colored ju- is usually accepted by womankind as evidence of want rors' cases. See 21 Alb. L. J. 309, 332, 3:29. Ex parte Sei
of virtue, and often the poor suffering victim of slander bold, p. 372; Ex parte Clarke, p. 399.— The Federal
18 driven from society by the good and pure of her own marshals' election cases. See 21 Alb. L. J. 247, 256.
sex without evidence of her guilt. This sad truth is Pucket Co. v. St. Louis, p. 423; Vicksburg v. Tobin, p.
familiar to all. It is strange, indeed, that the heart of 430.- A municipal corporation may rent wharves on woman, so tender toward the afflicted, so full of charity, public waters. Guy v. Baltimore, p. 434.– Discrimina- so forgiving, and always prompting to deeds of kindtion in city wharfage against products of other States.
ness, should be closed to the victims of slander ameng See 21 Alb. L. J. 371. Removal Cases, p. 457.-Hauenstein
her own sex. It may be that the inexorable laws of v. Lynham, p. 483. — The case of Swiss alienage. Kirtland society, which banish the slandered woman, tend to
protect and preserve virtue by presenting the most v. Hotchkiss, p. 491.– A State may tax residents for powerful motives for its practice, while they ofteu indebts due by non-residents evidenced by bonds secured flict the most cruel injustice. The law, however, can upon real estate in another State. See 20 Alb. L. J. recognize no such rules.”
The Albany Law Journal.
States during the civil war, her eyes will be likely to be opened. Public opinion has been highly favor
able to the institute, and many governments have ALBANY, AUGUST 21, 1880.
paid it marked attention. At the meeting in Brus
sels last September it was unanimously agreed to CURRENT TOPICS.
prepare a manual of the international laws of war
for the use of the armies, and submit the same to N anticipation of the meeting of the Institute of
the several governments. The articles of war given
to the troops in many countries were mostly devised September, one of its leading members, Prof. Blunt- many years ago, and are partly antiquated. The schli, of the Heidelberg University, gives in the
work has been done, and the book is said to be Berlin Gegenwart an account of what has been ac
clear, brief and pointed, and easy of comprehension complished by the institute since its formation in
by a simple corporal or private. The work will be September, 1873. At the meeting for organization,
submitted to the institute, at its meeting in Oxford, held in Ghent in Flemish Belgium seven years ago,
and after it has been agreed upon, it will be recomit was asked: Will it be possible to unite in a com
mended to the governments for the use of their pact society and in mutual labors the most eminent
armies. In this way it is expected that the institute representatives of the science of international law will, before the end of the year, make its first apfrom all civilized countries ? If that succe
cceeds, will proach to the governments. the members continue to make the needful sacrifices of time, energy and money for the common cause ? The third annual meeting of the American Bar AsWill the academy be able to come to an understand-sociation was held at Saratoga Springs on Wednesday, ing on the vexed questions and problems of interna- Thursday, and Friday, August 18, 19 and 20, 1880. tional law, or will the contrast of nations and schools We go to press too early for a report in this number. increase and sharpen the uncertainty and contradic- The programme announced was as follows: On Wedtions of opinions ? What will be the attitude of nesday the address of the president, Benjamin H. public opinion and of the governments to the acad- Bristow, Esq., of New York, was to be delivered at emy? To what extent will it gain moral and intel- the opening session. This was to be followed by the lectual authority ? These questions, writes Prof. nominations and elections of members, election of the Bluntschli, can now, after seven years' existence and general council, reports of the secretary and treasactivity, for the most part, be answered with cer- urer, and report of the executive committee. Papers tainty. The experiment has been successful. The were to be read by Henry E. Young, Esq., of Charlesnumber of regular members was limited to fifty at ton, South Carolina, on “Sunday Laws;" by George the beginning, and the membership now comprises Tucker Bispham, Esq., of Philadelphia, on “Rights the majority of the most eminent authors of works of Material Men and Employees of Railroad Comon international law. The labors of the members panies as against Mortgagees;” and by Henry D. of the institute are shown in the contents of the Hyde, Esq., of Boston, on “Extradition between the . Revue de Droit International and in the annual of States.” On Thursday the session was to be openeda the institute, the third volume of which has recently by the annual address by Cortlandt Parker. Afteļy been published. The yearly meetings in Ghent, this was to follow the consideration of the resolution: Geneva, the Hague, Zurich, Paris and Brussels have recommended by the committee on Legal Educatio; been largely attended by the members, although and Admission to the Bar, viz. : Resolved, That the many have been compelled to make long and expens- several State and local bar associations in the United ive journeys for the purpose. The fear that the States be respectfully requested to recommend and great diversity of nationality and opinions would further the enactment of laws for assimilating lead to endless confusion was soon shown to be en- throughout the Union on principles of comity, the tirely groundless. An agreement was soon reached standing of members of the bar already admitted upon nearly all questions of international law which to practice in their own States, by admitting to were considered.
The conflict of opinions has equal rights and privileges as practitioners of law in mostly been over subordinate matter. It is remark- the courts of all the other States those who have able that the only great question upon which an practiced for three years in the highest court of the agreement has not been reached is that of the State of which they are citizens. Resolved, That exemption of private property at sea from seizure in the several State and other local bar associations be time of war. The representatives of England cling respectfully requested to recommend and further in tenaciously to the right of seizure, and, in answer their respective states the maintenance by public to the arguments of the American and Continental authority of schools of law, provided with faculties European representatives that private property of at least four well paid and efficient teachers, should be respected at sea as well as on land, they whose diploma shall, upon being, unanimously maintain that the contributions and requisitions granted, after a full and fair written examination, which armies demand in hostile countries, are in
be essential as a qualification for practicing law. reality confiscations. But some time, when Eng- Resolved, That the said State and other local bar asland's commerce is subject to depredations like sociations be respectfully requested to recommend those suffered by the merchant marine of the United and further in such law schools a general course of
Vol. 22.– No. 8.
instruction, to be duly divided, for ordinary pur- because it is larger than the English, will work mis-
We have received “The Special and Local Laws herein: 1st, of the Feudal Law; 2d, The Institutes Affecting Public Interests in the City of New York, of the Municipal Law generally; 3d, The origin and in force on January 1, 1880, compiled by George progress of the Common Law. III. The Law of Bliss, Peter B. Olney, and William C. Whitney, Real Rights and Real Remedies. IV. The Law of corporation counsel, commissioners under chapter Personal Rights and Personal Remedies. V. The
536 of the laws of 1879,” forming two volumes of Law of Equity. VI. The Lex Mercatoria. VII. 2,200 pages, in the aggregate. The Legislature at The Law of Crimes and their Punishments. VIII. the last session passed an act repealing the laws and The Law of Nations. IX. The Admiralty and portions of laws contained in the second table preMaritime Law. X. The Civil or Roman Law. XI. ceding this compilation, entitled “Repealed and The Constitution and Laws of the United States of Superseded Laws;” but the bill was not signed by America, and herein of the jurisdiction and prac- the Governor. The Legislature also passed an act, tice of the Courts of the United States. XII. Com
which the Governor approved, as follows: “SECparative Jurisprudence, and the Constitution and
Tion 1. The volumes entitled “The Special and LoLaws of the several States of the Union. XIII.
cal Laws Affecting Public Interests in the City of Political Economy. Resoloed, That the said State
New York,' and printed by order of the Legislature and other local bar associations be respectfully re
of 1880, may be read in evidence and cited in any quested to recommend and further in such law
court or proceeding. Said volumes shall be considschools the requirement of attendance on at least ered as containing presumptively all special or local the studies and exercises appointed for said course
laws affecting public interests in force in the city of of three years, as a qualification for examination to
New York, on the 1st day of January, 1880, but be admitted to the bar. On Thursday evening, re- this presumption shall not be considered as extendports of the standing committees, reports of special ing to special laws relating to any corporation committees, and nominations and election of officers.
(other than the mayor, aldermen and commonalty), On Friday morning, miscellaneous business.
or to any association or society, nor shall the inser
tion or omission of any law relating to any such corIn another column we give the result of the con
poration be construed as in any manner affecting the vention called to devise measures to relieve our over
corporate existence of any such corporation or its
What effect the reburdened courts. This problem is the most im- possession of its franchises." portant matter of general interest now agitating our
fusal of the Governor to approve the repealing act profession except the scheme of general codification.
will have on the matter we cannot conjecture. The One thing must be borne in mind, namely, that we
work is vastly important, and has been executed have a vast amount of necessary law business; and
with commendable promptness. From the excelkeeping this in mind, the question is, how to do it,
lent abilities of the commissioners it is presumable ind not, how not to do it. Recently we saw some
that it has been thoroughly and accurately done. Somments on the comparative number of superior judges in this State and in England - about 160 in We have recently seen in one of our exchanges a this State, and some 34 in England. This is illu- communication advocating the fuller reporting of sive reasoning, for there is a large number of county the arguments of counsel and the fuller statement of commissioners and other magistrates in England, | facts and pleadings. This would indeed be a step who do a great amount of civil as well as criminal backward. That which renders some of our law rebusiness. It must be remembered that our county ports abominable and costs lawyers a great deal of judges do very little civil business. But the vital unnecessary outlay is this very padding. Law reports secret after all is that the amount of litigation in are designed to tell the profession what the courts this State of five millions of inhabitants is much have decided and their reasons for their decisions. greater than in England with its thirty millions. They are not designed to instruct lawyers how to This may seem a startling statement, but we have plead or argue. Any thing more than a synopsis of no doubt we can verify it. The calendars in Eng- the arguments, and a bare statement of what the land are amusingly small in comparison with ours, pleadings were, is an imposition on the profession. and yet the English judges are as badly in the lurch Why should we be compelled to pay for page on as our own, and the English law journals are full of page of tedious common-law pleadings and page on complaints about it. It is our firm conviction that page of evidence? As to the statement of facts, if we must have a double Court of Appeals bench; the court has made it, that is usually enough. If it must make our county judges do circuit business; is not complete, supplement it sufficiently, but do must somewhat increase our present circuit judicial | not make it all over again. To read the facts in force; and must remodel our General Term system, the head note, then in the reporter's statement, and adopting something like the old. But the impres- finally in the opinion of the court, is "damnable sion that we have a sufficiently large judicial force, I iteration,” and as senseless as the reading of a hymn
and then singing it, in church. By proper compres- party claiming under it. The court said: sion the number of our annual reports could be re- this provision of the contract is against public polduced nearly one quarter.
icy and therefore void, is, to my mind, entirely
clear. It amounts to an agreement to give to each NOTES OF CASES.
of the officers of the company who made the con
tract, and to each of their successors who should N Johnson v. Donaldson, U. S. Circuit Court, South- maintain it, a valuable consideration for his official
action in that behalf; a consideration of a private Rep. 22, Wallace, J., held that the publication and and personal character, inuring to the officers' prisale of chromos designed from a picture found in a vate benefit and gain, and not to the benefit of the foreign publication do not constitute breach of company or other stockholders. It is said, however, copyright of similar chromos where such copyright that this feature of the contract may be eliminated, was obtained after the circulation of such foreign and that the remainder may stand and be enforced. publication. The court said: “The sketch in the It is true that the policy of the law is to effectuate foreign publication was public property, which any rather than defea a contract, and to this end parts person could rightfully reproduce. If the plaintiff or provisions which are comparatively unimportant, had obtained his copyright by appropriating this and which may be severed from the contract withsketch, and recording the description, and comply-out impairing its effect or changing its character, ing with the other formal requisites of the act of will sometimes be suppressed. 2 Pars. on Cont. 505. Congress for obtaining a copyright, he would have | But the clause above quoted cannot be set aside as acquired no exclusive right to it, because he would unimportant. It constituted, to say the least, one not have been the author, designer, or proprietor of of the considerations on which the contract was the sketch. Assuming the plaintiff to have been made, and it is well settled that if the contract be the artist and designer of the picture copyrighted made on several considerations, one of which is illeby him, the defendant was not liable if he did not gal, the whole contract is void, and that whether avail himself, directly or indirectly, of the plaintiff's the illegality be at common law or by statute.'' production. A copyright secures the proprietor " The officers of a railway company are quasi public against the copying, by others, of the original work, officers. Their duties are of a fiduciary character. but does not confer upon him a monopoly in the in- They are, in an important sense, trustees. To pay tellectual conception which it expresses.
An artist them individually any thing of value for executing cannot acquire such an exclusive right to the con- a corporate contract is grossly unlawful, and taints ception embodied and expressed in his picture as such contract with moral turpitude. Vast interests, to preclude others from the exercise of their own in which the public, as well as the immediate parcreative genius or artistic skill, or from availing ties, are deeply concerned, are intrusted to the conthemselves of any part of the general contribution of trol and management of such officials; and in my artistic production. The law of copyright origi- judgment, there are important considerations of nated in the recognition of the right of another to public policy which demand that courts of justice be protected in the manuscript which is the title of shall hold them to a strict account, and shall never his literary property. This protection could not be for a moment recognize as valid a contract obtained adequate unless he was invested with the exclusive by paying directly or indirectly to such officials any privilege of copying the manuscript, whether for consideration, whether large or small.” sale or for publication. It does not rest upon any theory that the author has an exclusive property in
In Armstrong v. Kleinhans, Louisville Chancery his ideas, or in the words in which he has clothed
Court, 1 Ky. L. Rep. 112, the plaintiff carried on them, If each of two persons should compose a poem identically alike, he who first composed it Louisville, in a leased building with an observatory,
the clothing business at No. 150 West Market street, would have no priority of title over the other, nor
which was called the “Tower Palace," and adverwould he acquire priority by first publishing it.
tised his business under that name by signs and The law of copyright would protect each in his own manuscript, but would not prevent either from using Jefferson street, to a building with no tower or ob
publications. Subsequently he removed to West his own.” To the same effect, Lucas v. Cooke, 21
servatory, and continued the designation " Tower Alb. L. J. 364.
Palace." After his removal the owner of the first In Western Union Telegraph Company v. Union premises himself carried on the carpet business Pacific Railroad Company, U. S. Circuit Court, Dis- there, under the name of “Tower Palace Carpet trict of Kansas, June 30, 1880, it was held by Mc- Store.” Later he rented the premises to defendCrary, C. J., and Foster, D. J., that a provision in ants, who carried on the clothing business, under a contract between a telegraph company and a rail- the designation, “ Tower Palace.” The plaintiff road company, to the effect that the telegraph com- filed a bill to restrain defendants from the use of pany will transmit the family, private and social that designation, but the bill was dismissed. The 'messages of the executive officers of the railroad court said: “Plaintiffs insist that the house is not company free, is against public policy, and immoral, a palace nor the observatory a tower. But while and taints the entire contract, so that a court of this is true, we are compelled to speak with entire equity will not enforce it, or grant any relief to a accuracy, and although the plaintiff has proved by an architect that the 'tower' is not a tower, but husband of all ownership and control; for surely, has been called a "chicken-coop,' yet I think it is while the duty of the husband to furnish his wife too much to expect of men that in naming a con- with necessary and suitable clothing is continued, spicuous building they shall not be allowed to use it was not intended to deprive him of the right to the language of compliment. And it seems to me control and preserve it. Nor does it make any difthat a fine house may be called a palace, and that ference, where a wife purchases her apparel with pin the ornament on a high building like this may be money, given to her by her husband to be expended called a “tower;' and that 'tower-palace' is not in according to her will and pleasure. Of such propthe language of compliment a too exaggerated erty, the possession of the wife is the possession of name for this particular structure. The newspaper,
the husband. It has been held, however, by the in describing the plaintiff's opening, called particu- Supreme Court of Indiana, that a statute similar to lar attention to this tower, setting forth its com- ours operates as to clothing of the wife acquired mand of all the territory adjacent to Louisville. It otherwise than from the husband, or through his is to be observed that the sign on the tower was means, so as to invest her with a separate estate simply " Tower Palace,' and not Tower Palace Cloth- therein. Stevens v. State, 44 Ind. 469. See, also, 17 ing House, and it is further proved that the iron Ala. 415; Hawkins v. Providence & Worcester Railslab at the front door has the words .Tower Palace' road Co., 119 Mass. 596 ; S. C., 20 Am. Rep. 353; 51 cast in it. I think this name was suggested and Ill. 162; 1 Am. L. Reg. 434. And we are inclined adopted as appropriate to this particular building, to think that there are good grounds for the distincand was given to the building itself, and that it tion. Where the wife's clothing is furnished by the does not matter who first called it Tower Palace.' husband, in discharge of his marital duty toward “What is true of the name of an article must be her, the statute does not divest him of the property equally true of the name of a building. It would contrary to his intentions; while on the other hand, be unjust to its owner to limit him as to his tenants, where the property is otherwise acquired by the or to prevent him from taking a proper advantage wife, the statute simply prevents a title vesting in of its notoriety. No new tenant has any right to him by virtue of his marital relation. Under the deceive the public into thinking the building is still statute, the 'gift,' which is declared to be the sepaoccupied by a former tenant. But in so far as the rate property of the wife, is a voluntary one, as all public are deceived by the fact that the name of the gists must be, and does not embrace necessaries building continues to be used, such misleading can- which a husband is under a legal duty to furnish not be avoided, any more than a belief that the first his wife.” Under our statute a married woman can firm that manufactured · Paraffine Oil' or 'Essence sue in her own name for injury to her paraphernalia; of Anchovies' will continue to exclusively supply Rawson v. Penn. Railroad Co., 48 N. Y. 212; S. C., the market with these articles. To make this even 8 Am. Rep. 543; but in the absence of proof of a plainer, suppose a house built of red granite calied gift to her, the husband can sue. Curtis v. Delaware, by its first tenant Red-Granite House, or of brown etc., Railroad Co., 74 N. Y. 116; S. C., 30 Am. Rep. stone so named Brown-Stone Palace, could such a 271. In State v. Pitts, 12 S. C. 180, it was held, tenant move away his business and sign to a brick that while a married woman may acquire title to house or a frame house and prevent all other ten- articles of apparel by gift from her husband, yet ants from calling the houses by their appropriate her mere use and enjoyment of such articles purnames ? I am not willing to put this case solely on chased by her husband does not give her title the ground that the name “Tower Palace' was ap- thereto as her separate property; and on an indictpropriate or descriptive of this building. I am in- ment for stealing such articles, laying them as the clined to think that whatever name had been given property of the husband, the question of title is for must adhere to it.” See “ Antiquarian Book-Store" case, Choynski v. Cohen, 39 Cal. 501; 2 Am. Rep. 476; “No. 10 South Water street” case, Glen & Hall COMPELLING PRISONER TO FURNISH Manufacturing Co. v. Hall, 61 N. Y. 226; 19 Am.
PERSONAL EVIDENCE OF HIS Rep. 278.
In Pratt v. State, 35 Ohio St. 514, it was held that NE of the most interesting questions in the law, necessary and suitable clothing furnished by a hus- and one of frequent recent occurrence is, how band to his wife, or purchased by her with money far can a person accused of crime be compelled to or means given to her by her husband for that pur-furnish personal evidence of his identity with the pose, does not become her separate property within perpetrator, and thus to make evidence against himthe meaning of the statute concerning the rights self ? It will be useful to group and review the deand liabilities of married women. The court said: cisions pro and con. “Notwithstanding the very comprehensive terms To commence with the most recent. In State v. of this statute, a majority of the court are of the Ah Chuey, 14 Nev. 79, on a question of personal opinion that they do not embrace the wearing ap- identity, in a trial for murder, a witness testified parel of his wife, furnished by the husband, or pur- that the defendant had certain tattoo marks on his chased by her with money or means given to her by person. The court compelled the witness, against the husband for that purpose. As to such property, his objection, to expose his person to the jury. It was not intended by the statute to deprive the | Held, no error. This was held by two judges, the