will fix the rights of the parties. Where judicial proceedings are resorted to, the party instituting the action files his petition in the proper court, setting out by specific description the property sought to be divided, giving the names of all the parties in interest with a statement of the nature and extent of their respective interests. A notice or summons is issued and served upon all the defendants, and if any are not residents of the state a notice by publication is given in the manner prescribed by statute. Infants appear and defend either by their legal guardian or by guardian ad litem, as the statutes of the several states require. When the issues are made up and the evidence is heard, the court makes an interlocutory decree of partition fixing the shares of the parties, and adjudicating all rights and equities which may arise in the case. Where one of the parties has expended money for the preservation of the property, or where it is shown that one of the parties has received money or property from the ancestor by way of advancement of part of his portion which is to be charged against his interest, in all such cases the court will determine the rights and equities of the parties and incorporate its decision in the interlocutory decree. This decree adjudges that the division be made by commissioners, naming them, and requires the commissioners to report their doings to the court. When this report comes in and it shows that a division has been made, any party in interest has the right to except to the report. If after hearing the report the court determines that the division is unfair, a second order or decree is made requiring the commissioners to make a new division. When the report is

confirmed the court makes a final decree which establishes the rights of the parties to their shares in severalty. If it appears that the property can not be divided without injury to the parties, the court orders it to be sold, appointing a commissioner for that purpose. Where it is sold and the sale is reported and the report confirmed, the final decree is made. dividing the proceeds of the sale amongst the parties according to their respective interests and directing the commissioners to make a proper deed to the purchaser.

§ 602. Certiorari.-The writ of certiorari is a writ which issues from a superior or appellate court to an inferior court or officer exercising judicial functions, or other person, requiring such court or officer to certify to such superior court a full and complete transcript of the records and proceedings of any such inferior tribunal or officer, or to produce any paper whenever it shall be necessary for the proper determination of any cause or proceedings before such superior or appellate court. It differs from a writ of error in the fact that it issues from the higher court to the lower court, whether of record or not, and at any stage of the proceedings, as well before as after judgment. It also issues from an appellate court to an inferior court, requiring it to correct or amend the transcript of its proceedings, whenever it is made to appear to the appellate court that there has been a mistake or omission as to any material particular in the transcript as first certified.

CHAPTER XLV.

CRIMINAL LAW.

§ 603. Crimes in the United States.-A crime is an act committed or omitted in violation of a public law. The right to punish criminals rests upon grounds of policy; in a large sense it is the right of self-defense, and is absolutely necessary for the preservation of society. Crimes are defined and their punishment regulated by the common law or statute law. There are no common law crimes which are recognized by the federal courts, their criminal jurisdiction being limited to offenses defined by the laws enacted by congress. In most of the states of the Union there are no offenses punishable as crimes except those which are made so by statutory law.

§ 604. Capacity to commit crime.- An act can not be criminal unless the actor is a responsible being, capable of knowing that the act is wrong, having power to control his actions. An idiot or a lunatic, or a young child, is incapable of committing crime. Under seven years of age a child is conclusively presumed to be incapable; between the ages of seven and fourteen it is incumbent on the prosecution to prove capacity; persons over the age of fourteen are presumed to be capable. Aside from these natural infirmities of idiotey, lunacy and infancy, persons whose powers have become enfeebled by disease, drunken

ness, or any cause, to such an extent that they have lost the control of their wills and are unable to know right from wrong, are not criminally responsible, although they may be liable in a civil action for the wrongs they may inflict upon others.

§ 605. Criminal statutes, how construed.-Criminal statutes are construed liberally in favor of the accused. It matters not how immoral an act may be, or how injurious to society, it can not be punished as a crime unless it is prohibited by law.

§ 606. Infamous crimes.-Infamous crimes are held by the federal courts to be such as are punished by imprisonment at hard labor. The state statutes declaring what are and what are not infamous crimes are not harmonious.

§ 607. Crimes classified. - Crimes are again divided into felonies and misdemeanors, felonies being such offenses as are punishable with death or imprisonment in the state prison, and misdemeanors offenses of a lower grade, for which lighter punishments are prescribed.

§ 608. Compounding.-Compounding an offense is where one for a consideration agrees not to prosecute the offender, or to stop a prosecution already begun.

§ 609. Attempts.-Attempts to commit crime are sometimes declared to be crimes themselves. A mere naked purpose to commit a crime, however, unaccompanied by an act in furtherance of the purpose, is not punishable as an attempt. The criminal law deals only with overt acts. It sometimes happens that a man with deliberate purpose attempts to commit a crime which for some cause unknown to him he can not commit, as to pick a pocket which is empty,

or to shoot at another with an unloaded gun; in such cases he is generally held criminally responsible.

§ 610. Aiding, counseling, etc.-Advising, counseling, encouraging or soliciting another to commit a crime is a punishable offense, but of this more will be said when we come to speak of accessories.

§ 611. Unlawful intent and overt act must unite.— In every crime there must be a union of the unlawful intent and the overt act, and both act and intent must be proved. In most cases the intent is inferred from the act itself, or it may be proved by circumstantial evidence. There is much confusion in the decisions of the courts of the various states as to the character of the overt act necessary to constitute the offense. Thrusting the hand into an empty pocket with intent to steal has been declared by some courts to be an attempt to commit larceny, and the contrary is held by other courts. So of shooting at another with a blank cartridge. Bishop says, as we think correctly, after carefully examining the conflicting decisions, "on the whole we may deem the true doctrine to be that where the object is not accomplished, simply because of obstructions in the way, or because of the want of the thing to be operated upon, where the impediment is of a nature to be wholly unknown to the offender, who used appropriate means, the criminal attempt is committed."

§ 612. Criminal carelessness.-Where through the wanton and reckless or grossly negligent conduct of one an accident happens which causes death, the act is criminal. As where an engineer in charge of a locomotive neglects his duty, or one on a building