portant fact. It was, however, shown to the court that all such cattle which have not undergone the necessary period of quarantine-if the word may be so used-away from their native range, are liable to communicate disease during the prohibited months, to domestic cattle. But it was necessarily admitted on the argument that Texas cattle which had passed the entire previous winter in Iowa or Nebraska would not import disease. If this decision is open to no more valid objections than those urged by "G. G. V.," it is, in my opinion, more than ordinarily sound. M. A. Low.

MANSLAUGHTER AND MURDER.

To the Editor of the Central Law Journal:

I do not propose to review the article published in No. 10, current volume of your Journal, over the signature "H. S. K." but desire the attention of your readers to a single point, perhaps the least defensible of the many points ingeniously made by the author.

It is gratifying that "H. S. K." selected your Journal as the medium of his address to the bench and bar, for, if we are to enter upon this new departure of the trial judges entering the lists in defense of their rulings as against the more mature deliberations of our Supreme Court, it should be done through the medium of our law publications, and not of the political press.

"H. S. K." quotes at length from the opinion in the case of State v. Alexander, delivered by Henry, J.not yet published-that part of the opinion relative to the instructions in respect to manslaughter in the second degree, in which the Supreme Court employs the following language: "In his written opinion on application of the defendant to be admitted to bail, the judge who tried this cause, correctly stated the law as follows: A man is taken to intend that which he does, or which is the necessary or immediate consequence of his act. To illustrate, if a man, within shooting distance of another, raises his gun, takes aim and fires, and the ball inflicts a mortal wound, from which death ensues, the fair presumption is that he intended to kill his victim, and, if so, the act is certainly murder, unless done in self defense.' The case supposed by him to illustrate the principle is the very case here, and it is a little remarkable that the court, having so clear a view of the law, should have given the 16th instruction. That defendant intended to kill Norrick is beyond a doubt." After quoting from the opinion in State v. Phillips, 24 Mo. 475, the Supreme Court continues: "Those remarks are equally applicable to this case, and it was an error to give the 16th instruction."

"H. S. K.," in reply to the opinion of the court in the Alexander case, among other things, says: "In Landers v. State, 12 Texas, 462, the evidence proved a deliberate killing by lying in wait, and the defense was justification on account of previous threats, and fear that they would be executed at some future time. The defendant was found guilty of murder in the second degree, by reason of erroneous instructions, defining a case of murder in the first degree to be murder in the second degree; and the defendant sought a reversal on that ground. The Supreme Court of Texas said there was no doubt of the error, but it operated in favor of the defendant, and not against him; and upon no principle could it be maintained that for such an error the court would be warranted in reversing the judgment. But the Supreme Court of Missouri, to be consistent, would have to reverse such a case."

If the error in giving the 16th instruction in the Alexander case was the only error in the case, then "H. S. K's" reasoning would be conclusive. But such was not the fact, for the case contamed errors enough to reverse several first-class murder cases, all of which are clearly shown in the opinion. Does "H. S. K." contend that in a case where all the evidence tends to establish

a case of murder, that it is within the discretion of the trial court to instruct the jury in respect to the law of manslaughter? He certainly will not so contend. Then if such is not the law, to do so is error. But "H. S. K." says if it is an error, it is one in favor of the accused, and hence he can not complain. "H. S. K." is complaining because the Supreme Court, whose duty it is to exercise a superintending control over the circuit courts, in sending a case back for a new trial, points out a palpable error committed by the trial court on a former trial. Such apparent restiveness of the circuit bench is an ill-omen, and squints at an unhealthy insubordination from that quarter. The state has rights as well as the accused, and although her officers can not correct the errors of the trial court in giving instructions, by appeal or writ of error, still where they have been committed on a first trial on account of other errors, the Supreme Court would be remiss if it failed to point them out. J. H. S. TRENTON, Mo., March 11, 1878.

BOOK NOTICES.

A DIGEST of Volumes 69 to 83 inclusive, of the Decisions of the Supreme Court of Illinois, as reported by HON NORMAN L. FREEMAN, with Table of Cases and Table of Contents. Compiled and Arranged by EDWARD J. HILL. Chicago, Illinois: Chisholm Brothers. 1878.

THE CRIMINAL CODE OF OHIO, with Forms and Precedents for Indictments, Informations and Affidavits, Forms for Writs, Docket and Journal Entries, and Digest of Decisions. By MOSES F. WILSON. Cincinnati: Robert Clarke & Co. 1878. SAYLER'S AMERICAN FORM BOOK, containing the most improved legal forms and instruments for the use of professional and business men; also a statement of the Law of Deeds, Mortgages, Chattel Mortgages, Exemption from Execution, Interest, Mechanics Liens, Wills; with Forms for every State and Territory. By J. R. SAYLER, Counselor-at-law. Cincinnati: Robert Clarke & Co. 1878.

The above three volumes are all handsomely printed and well bound, the two first in sheep, the last in cloth. The mechanical execution of the Illinois digest is really excellent, and is very creditable to the enterprise of the Chicago house whose imprint it bears, and whose work we, for the first time, have become acquainted with. It is as good as could be wished, and is not excelled even by the older and better known Cincinnati firm, by whom the Criminal Code and Book of Forms have been issued.

The cases digested by Mr. Hill were decided by the Supreme Court of Illinois during three years, from the September Term, 1873, to the same term in the year 1876. A digest every three years would seem to be rather uncalled for; but the present volume is explained by the fact, that during that period the state reporter has issued no less than fifteen volumes, and that the cases in these volumes cover forty-three pages of the digest. The table of contents includes forty-seven pages, and the book itself seven hundred and ninety-seven. The digest of Wood and Long, with the supplement of 1876, brings the Illinois decisions down to volume 68, where Mr. Hill's digest begins. Any one who finds it necessary to consult the last fifteen volumes of the Illinois reports will be unable to do without it. Mr. Hill is to be congratulated upon the faithfulness and ability with which he has performed the severe and exacting labors which one who undertakes to make a satisfactory digest takes upon himself.

An annotated edition of the Penal Code of Ohio, adopted by the general assembly May 5th, 1877, must be of great value to every criminal lawyer in that state. The author, following in the arrangement of his work the Code itself, has presented its different sections in

the order which the practitioner has become familiar with, and has supplemented them with the decisions of the Ohio courts and with the necessary forms. The work contains 586 pages, and a good index. Nearly three hundred cases are cited. The forms are numerous and complete. The contents of Mr. Sayler's book can be sufficiently seen from its title page. Its object is to provide a comprehensive, clear, and reliable form book for professional and business men in the several states of the Union. Forms for all the more important classes of transactions, and especially such as require to be performed with legal precision, are given, with such instructions and directions as the practice and aws of the respective states relating to the same seem to demand. We believe the work to be accurate and reliable.

Even if he do nothing more, the maker of a digest or the compiler of a book of forms, which the profession can safely depend on, is entitled to thanks. He becomes the designer of a time-saving machine, for the benefit of a profession which greatly needs something of that sort. In every business, or profession or trade save one, necessity has compelled and invention has provided the means for doing with one man, and in one hour, what formerly took a score of men and a whole day to accomplish. The improvement of machinery has, in this respect, affected in an almost equal degree the merchant, the manufacturer, the agriculturist and the artizan. The surgeon, too, has his improved instruments, with which he may set or amputate a limb with a speed which medical science two hundred years ago did not dream of. And all these circumstances have so influenced modern ideas, that even the minister is forced to shorten his sermons, and where our ancestors would sit patiently for a whole forenoon, we commence to yawn at the end of half an hour. But while nearly all the world has thus been moving, the legal profession has-we were going to say-stood still. But to say this would hardly be the truth; to show its exact position something more must be added. It has certainly not gone with the stream; nor has it attempted to stem it. The fact is, as we shall presently show, that silently, without having been noticed by many, it has under the shelter of the shore been sailing, and is now sailing, up the stream and against the current. Our foreign critics, in uniting upon the legal profession as the conservative element of this country, have really fallen into an error. Conservatism means to remain where you are, to guard the customs of the past, and to cleave to the maxims of your ancestors. It means a state of rest which abhors change, and that, regardless of whether it shall bring more labor or more ease, greater liberty or a more complete despotism. We speak here of the lawyer in his profession, not of his influence upon politics. In the latter relation, the expression which we are criticising may be, and probably is, correct.

To test the truth of what we have said, it is only necessary to consider how far the march of improvement, to which we have referred, has benefited or has been participated in by the legal profession. One not acquainted with the subject would probably conclude that, as it takes fewer hands and less labor to build a bridge or weave a carpet or reap a crop than it did a hundred years ago, it would consequently require less labor on the part of lawyers and courts to arrive at the equity and to decide finally a dispute between citizens, to settle which the aid of the law had been invoked. Yet were he to examine the subject ever so cursorily he would not fail to see the falsity of his proposition. He would, without much trouble, discover the error into which he had fallen, and without, perhaps, understanding the reason for it. But of this he would be certain, viz., that there are more lawyers than formerly; more law, more long-windedness, not fewer technicalities, and hardly less delay. But though the

non-professional men might fail to give the proper explanation for the phenomenon, the cause is obvious enough. It lies in the enormous growth of precedents. The lawyers of old investigated principles, the reported cases were few, the principles themselves were few, and it might be affirmed with confidence that it did not occupy the advocate of two hundred years ago a longer time in thinking out the arguments in a case before him than it did the theologian to compose his sermon. But the lawyer of the present day never feels confident of his case unless he is sure that he has found all the reported authorities upon it, and to do this he must, by some means or other, search thousand of volumes of reports. To accomplish this he is, to some extent aided by just such books as are before us as we write, and which we have designated as labor saving. Thus, in the practice of the law, has thought given place to research. Ninety-nine lawyers out of a hundred will tell you that the reported decision of any judge, no matter where or when, no matter how much of a jurist he may have been, is more potent with nine out of ten courts than any amount of reasoning and logic.

Not only has the labor of preparing a case gradually become more and more arduous; but the time necessary to dispose of it has correspondingly lengthened. The limitations of the right to cross-examine have been almost all removed; the witnesses in a case of any importance are legion, and the clepsydra by which the time of the advocate was measured, is unknown to our courts. A hundred years ago the most important trials scarcely ever lasted more than one day; if they took two days it was regarded as extraordinary. Now a case of any notoriety-and these are the ones which are noticeable-seems to drag on endlessly and furnishes items for the newspapers and food for the non-fastidious for months. The Tichborne and Beecher cases have no parellels in former days, not even in such causes celebres as the trials of Warren Hastings and Aaron Burr.

It is for these reasons that we welcome the publication of such books as these, and we have grouped them together as belonging to the same genus, and deserving the same notice. We repeat, as our opinion, that the author who, content to be useful rather than to appear learned, discards the oft seductive wish to be known as the author of a treatise, and is satified to lessen the labor of the profession by rendering easier what we might term the mechanical part of the practice of the law-the search after precedents-has rendered no common se vice to the profession, and has, in truth, deserved well of his brethren.

QUERIES AND ANSWERS.

[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's department-i. e., we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecu tively during the year, and correspondents are requested to bear this in mind when sending answers.]

QUERIES.

9. LANDLORD AND TENANT JUSTICE COURTBOND.-A, a landlord, sues B, his tenant, for rent and possession and obtains judgment for two months' rent and possession. B appeals and gives bond to cover six months' rent. Can A begin suit for the next months' rent when due irrespective of the case appealed? And is it within the province of a justice to take any bond he please, and to cover more than the judgment obtained? A case of this kind was recently decided by a justice of this city, which decision prevents a landlord from commencing a new suit for next month's rent

I would refer the querist to the case of Patterson v. Crawford, 12 Ind., 241. In this case Armstrong, assignor of the appellee, was convicted of grand larceny and sentenced to hard labor in the state prison for a term of 5 years. Before his term of imprisonment expired, he was released upon a writ of habeas corpus, and finally discharged, upon the ground that the court trying him had no jurisdiction of the offense. Suit was brought by his assignee, for his (Armstrong's) work aud labor, done and performed by him during his confinement, for the lessee of the state prison. The court below rendered judgment for the full amount of the claim, and the supreme court affirmed the judgment. Lawrenceburg, Ind. W. H. BAINBRIDGE.

NOTES.

ON the 22d ult., as Sir George Jessel, Master of the English Rolls Court was alighting from his cab at the court door, he was shot at with a pistol in the hands of a lunatic, who had a few days before been removed from the court by his order. The bullet grazed the ear of the judge. The man was immediately arrested. On taking his seat on the bench, the judge remarked that assaults on civil judges in England have been extremely rare. The Solicitors Journal can not recall within the last few years any instance of an assault on a judge in a civil court more serious than that perpetrated by the man from Texas, who discharged at Vice-Chancellor Malins an egg of dubious freshness. But in 1616 Sir John Tyndal, one of the Masters in Chancery, was killed by a shot fired at him while entering his chambers at Lincon's-inn by a man called Bertram, against whom Sir John had given a decision. The assassin was examined before the Attorney-General and Solicitor-General "according to special directions given by his Majesty in that behalf," but committed suicide before he could be punished (see 2 Morant's History of Essex, 281). A few years later a very severe and summary punishment was inflicted on a ruffian who attempted to injure a judge of assize. Chief Justice Richardson, at the assizes at Salisbury, in the summer of 1631, was assaulted by a prisoner, condemned there for felony, who, after his condemnation, threw a brickbat at the judge, which narrowly missed him. For this an indictment was immediately drawn by Noy against the prisoner, whose right hand was forthwith cut off and fixed to the gibbet upon which he was himself immediately hanged in the presence of the court (see 2 Dyer, 188b).

MR. THOMAS CHITTY, the well-known pleader-we wonder how many lawyers there are in this country who are not familiar with the name of Chitty-bas just died in his 77th year. He was a member of a family of distinguished lawyers. His father, says the Law Times, was an eminent member of the Bar in the early part of the century, and was the author of a large number of law books, some of which are still cited as authorities. Mr. Chitty was never called to the Bar. He practiced as a special pleader, and his very large business attracted to his pupil-room a crowd of students. Among those who read with him were Lord Chancellor Cairns, Lord O'Hagan, Chief Justice Whiteside, Mr. Justice

Willes, Mr. Justice Quain, and Sir James Hannen. He was the editor of "Chitty's Practice," which passed through some dozen editions, and was long the handbook of practitioners of the old school. The book survived, and for a time defied the sweeping changes in procedure which commenced in 1852, and though the judicature acts have to some extent diminished its value, it is still highly useful, as so much of the old practice is preserved, and it will long remain a memorial of the industry and research of its editor. Mr. Chitty was also editor of Burns' "Justice of the Peace," of which Mr. Justice Willes used to say that it contained better law on nearly every subject than could be found in any other text book. Mr. Chitty began his practice below the Bar in the year 1819, at an unusually early age. He rose rapidly into a large business, and continued hard at work until the close of last year, when his strength suddenly failed him. He was an eminently bright, cheerful, kindly man, much beloved by his old pupils and numerous friends, and his long and honorable career had secured for him universal respect and good will in his profession. He retained almost to the last his active habits aud quickness of intellect.

THE most considerable event which has transpired in legal circles in this city during the present year, is the disbarment of Mr. Frank J. Bowman, which took place in the circuit court last Monday. It attains this prominence not so much from the position of the defendant, whose notoriety is happily but local, as from the remarkable manner in which the prosecution was instituted, and has from beginning to end been conducted. It was strictly neither a public nor a private proceeding; in the peculiar features of each it was wanting. In the conduct of the case nothing was more marked than the absence of that personal feeling which distinguishes a private quarrel, unless it were the lack of that popular support without which a public prosecution,must certainly fail. Despite the frequent assertions of the defendant that he was the victim of a persecution, it is certain that to an outsider the dignified and judicial style in which the prosecution was carried on was most striking. It was the case of a body of professional men, the leading and most honored members of the profession-it would be a difficult matter, leaving out the defendant's counsel, to find a lawyer of any standing who does not indorse the course of the Bar Association-uniting together in a common effort to prove to the public that the ancient honor of the profession is still more than a mere name. Another feature of the prosecution was the exceptional charaeter of the jury which passed upon the facts of Mr. Bowman's case. It is seldom that snch a jury is seen in a St. Louis court room, composed, as it was, of leading citizens, merchants, manufacturers, millionaires. The verdict was not unexpected; but the sentence, outside of the profession, has excited surprise. The public had long since come to the conclusion that the defendant would in some way or other "get ahead of them yet.". The defendant, if the newspapers reported him correctly, regarded the verdict as a vindication, and probably looked for a tribute from the court instead of the severest reprimand which it had power to give. But he ought not to complain. In the judge before whom his case was heard, in the eminent jurist and his associates who conducted the prosecution, and in the skilled advocates who defended him, he had all he could ask for. In the jury which returned the verdict he had even more; for all he was entitled to was a jury of his peers. But perhaps it is too much to expect from him that "good opinion of the law" which the poet has celebrated in a couplet and which may be presumed to be wanting in the attorney who betrays his trust.

There

ing of a constant and adequate guard and watch over and upon the burglar-proof safe. 2. To the prevention of access by any renter to the safe of any other renter. 3. To the protection of safes and contents from any dishonesty on the part of any of the company's employees." The plaintiff had exclusive possession of the key to the safe, and had placed the bonds in it. Subsequently he discovered them to be missing. was no evidence that the vault or the safe had been broken nor that the lock had been tampered with, so that it followed that it had been opened with a key suited to the lock. The court held that there was evidence of negligence on the part of the company sufficient to go to the jury, and sustained a verdict for the plaintiff. The case was not, said the court, like that of Finucane v. Small, 1 Esp., 315, where the trunk of the bailor was delivered to the bailee for safe custody, there being no express agreement as to the care to be exercised; nor like that of Farnham v. C. & A. R. R., 5 P. F. Smith, 53, where it was held that proof merely of loss was not sufficient to put the bailee on his defense. The evidence did not stop with merely showing the loss. It showed the bonds had been abstracted by some one entering the vault, and opening the safe by means of a key. The presumption of want of ordinary care was thereby created. All the evidence calculated to rebut that presumption was properly left to the jury.

An important decision as to the liability of railway companies for passenger's luggage was made in the English Court of Appeal in the recent case of Bergheim v. The Great Eastern R'y Co. The plaintiff was traveling on the defendant's railway. He arrived at the station some time before the train was to start, and he directed one of the defendant's porters to place his traveling bag in the carriage in which he intended to travel. The porter did so under the plaintiff's superintendence, and the plaintiff, after inquiring of the porter if the bag would be safe, and receiving a reply in the affirmative, went to another part of the station to get some refreshment. On his return to the carriage the bag was not to be found. To recover the value of the bag the plaintiff brought action. At the trial, the jury found that neither the plaintiff nor the defendant had been guilty of negligence, and on these

findings the judge gave judgment for defendants which was affirmed on appeal. In commenting upon this case, the Law Times says: "That railway companies carry passengers' luggage as insurers may be considered as settled by Macrow v. Great Western Railway Company, L. R. 6 Q. B. 612, although the question has never been expressly decided by the Court of Appeal. But in Talley v. Great Western Railway Company, L. R., 6 C. P. 44, it was held by the Court of Common Pleas that if luggage be placed in a railway carriage with the passenger, with his assent, and he retains control over it, the company's liability as insurer ceases, and they become liable for negligence only; and this view of the law has been affirmed by the Court of Appeal in Bergheim v. Great Eastern Railway Company. Lord Justice Cotton, in delivering judgment for the company, appears to have rightly distinguished the case of a passenger retaining control of his luggage and the ordinary case of luggage being consigned to a van. But the strong point for the plaintiff appears to have been that the porter promised him that his bag would be safe. With regard to this, however, it seems that the porter would have no authority to give such a promise, so that the judgment appears to be quite correct. The case is rather an important one, not so much from the difficulty of the question of law involved, as from the frequency with which railway passengers absolve the companies from their liability as insurers. And there are few lines upon which a railway porter will not, on the slightest hint from a passenger, place luggage in a railway carriage."

THE DEGREES OF MURDER. I.

Homicide, of which in our state murder in the first degree is the highest and most criminal species, is of various degrees. In its largest sense the term is generic, embracing every mode by which the life of a "reasonable creature in being" is taken by the act of another. The term is from the Latin homo, a man, and cedere, to kill (1 Bouvier's Law Dictionary) and is defined to be "the killing of any human creature," 4 Black. 177; "The killing of a man by a man," 1 Hawk. Pl. Cr. C. 8, Sec.

2.

Our statute does not define the crime of murder in either degree, but only classifies