preme Court of Ohio, is of great practical importance, involving the question as to the liability of a mining company for damages caused in polluting a stream. It is there held that in an action brought by a riparian owner to recover of a mining company damages to his lands, and for polluting the water of a stream which runs through them, by depositing on its own lands, coal slack, dirt and refuse, in places from which the same had been washed down and onto the lands of the plaintiff, the evidence showing substantial injury to have been produced thereby; that the deposits were made intentionally; and that such results might, at the time the deposits were made, have been anticipated by a person of ordinary intelligence and prudence-a right to recover is established, and it is not a defense to show that the operation of the mines, and the deposit and disposal of the slack, etc., was conducted in the mode in general practice in the operation of similar coal mines in the surrounding mining districts, and that such deposits were made without malice, and upon the only feasible place or places the company could deposit the same, and carry on the business of mining coal. Spear, J., on the subject of the defense sought to be interposed, says: Equally immaterial, as we think, is the matter of custom among coal operaters in the Hocking valley and the surrounding mining districts near thereto of depositing slack and refuse on their own lands, when such custom is invoked to justify deposits so placed as to naturally allow them to wash down, to the injury of lands lying below them. The rights of the plaintiff to the uninterrupted use of his land, and the unimpaired use of the water of Monday creek, being secured to him by the common law, how is it possible that a custom can deprive him of them? Why should a usage, the effect of which, if recognized, is to permit one man to take from another his property rights without compensation, be sanctioned? If it be assumed that the custom is a general one, then it is a part of the common law itself; and there would be presented an instance of two rules of law, equally binding, and yet wholly inconsistent the one with the other. If it be claimed that the custom is a particular one, then we have the anomaly of a land-owner's common-law right in his land taken from him by a usage of a particular trade, established by strangers, which it is not pretended he has ever been cognizant of, much less assented to. To have affected the plaintiff the custom must have been shown to be reasonable and certain, known to him, or to have been so general and well established that knowledge would be presumed, peaceably acquiesced in, and not unjust, oppressive, or in confict with an established rule of public policy. The alleged custom possessed scarcely one of these attributes. Even though it had been common throughout the State, it would not avail. A usage which is not according to law, though universal, cannot be set up to control the law. Meyer v. Dresser, 111 E. C. L. 646; Stoever y. Whitman, 6 Bin. 416: Inglebright v. Hammond, 19 Ohio, 337. Nor could the testimony offered avail the defendant on the question of negligence. Evidence of a particular custom is sometimes admitted to explain a contract, to ascertain the intention of the parties when it had not been fully expressed in the contract, to interpret the otherwise indetermi nate intentions and acts of the parties, or to show that the mode in which a contract has been performed is the one customarily followed by others engaged in the same calling or trade; but, as a general proposition, one "charged with negligence will not be allowed to show that the act complained of was customary among those engaged in a similar occupation, or those placed under like circumstances, or owing similar duties. Such an offer is, in effect, to show, as an excuse for defendant's negligence, a custom of others to be equally negligent." Deer. Neg. § 9: Cleveland v. Steamboat Co., 5 Hun, 523; Judd v. Fargo, 107 Mass. 264; Hinckley v. Barnstable, 109 Mass. 126; Miller v. Pendelton, 8 Gray, 547; Bailey v. New Haven & N. Co., 107 Mass. 496; Littleton v. Richardson, 32 N. H. 59; Bridge Co. v. Fisk, 23 N. H. 171; Crocker v. Schureman, 7 Mo. App. 358. That others engaged in like business have been accustomed to disregard the rights of their neighbors can furnish no justification to the defendant to do so. The further claim of the company that it had the right to make the deposits in the places complained of because it was necessary to the successful conduct of its own business to so place them, seems no less wanting in substance. The effect is to measure the rights of the plaintiff in his lands and in the waters of Monday creek by the convenience or necessity of the company's business. An owner of land in Ohio is not subject to any such narrow and arbitrary rule. If the injury complained of were merely a fanciful wrong, or produced simply personal discomfort, such as any dweller in a town is necessarily subjected to by reason of the operations of trade which may be there carried on, and which are actually necessary, not only for the emjoyment of property, but for the benefit of the inhabitants of the town and the public at large, there might be no real ground of complaint; but where the result of the acts of one on his own land is a direct and material injury to the property and property rights of another, a very different question arises, and, in such case, the maxim sic utere tuo ut alienum non ladas applies. Upon reason we think the proposition sound that, where no right by prescription exists to carry on a particular business in a particular manner at a particular place, and the natural and necessary result of the place selected and the manner adopted is to cause material injury to the property rights of another, it is not a sufficient defense to an action for damages to show that the locality where it is carried on is one generally in use by persons in such business and, the manner in which it is carried on is commonly adopted by others in such business, even though it appears that the use made of the land, while not the common and ordinary use of land as such, is not an unnatural nor improper one in and of itself, nor even an unusual one; and the proposition will be found sustained by abundant authority. From the scores of cases we are content to cite Tippling v. Smelting Co., 116 E. C. L. 608, 615, 11 H. L. Cas. 642; Bamford v. Turnely, 118 E. C. L. 62, 82. In the latter case defendant was the owner of land on which was clay well adapted to the making of brick. He dug the clay, moulded it, and proceeded to burn it on the land to the damage of the plaintiff, The court held that an action for a nuisance would lie. Attention is specially called to the opinion of Bramwell, B. Attention is also called to Shear & R. Neg. §§ 733, 734. "It is a general principle that any person who without authority, diverts the whole or any part of the water of a stream from its natural course, or interferes with its natural current, is responsible absolutely, and without any question of negligence, to any one who is entitled to have the water flow in its natural state." "Any use of the land near a stream, or of the water of a stream itself, which renders the water unwholesome, offensive, or unfit for the purposes for which it is used, is unlawful; and any riparian owner who is damaged by such unlawful acts has an action for his damages against the author of the wrong." The case of Ruffner v. Railroad Co., 34 Ohio St. 96, is cited as sustaining the company's claim. With due respect, we think it fails to do so. The question was whether, where a railroad company authorized to propel its trains and operate its road by steam locomotives, an inference of negligence arises from the mere fact that an injury to adjoining property was caused by sparks emitted by such locomotives, which question the court answered in the negative. The railroad company was authorized by the State to construct its railroad and operate it by locomotives, and the only way by which it was possible for the locomotives to be driven by the creation of steam by means of fire, and sparks would necessarily follow. It was not only the natural and common way, but the only prac tical way. Negligence must be shown; it will not be presumed. Hence, when the only fact present was that sparks had been emitted from the smoke-stack which caused damage, the court would not infer that the fire was carelessly conducted, nor that the appliances of the railroad company were defective. But whether or not, at common law, the action could be maintained, there seems to be no question but that the acts charged against the defendant company, if done intentionally, constituted a nuisance punishable by the criminal statute, and that a right of action on the part of a person injured would follow. HOMESTEAD RIGHTS OF STEP-MOTHER. The Supreme Court of Georgia, in Holloway v. Holloway, 12 S. E. Rep. 943, hold that where a widow takes minor children of her husband by a former marriage, and undertakes to keep them together and care for and support them, they all remain members of the deceased's family, and the widow is the head of such family, and as such is entitled to a homestead under the laws of Georgia. The court says: Under the facts of this case, we think the court erred in this charge to the jury. While there was no legal obligation on the part of this widow to support the minor children of her husband, yet, we think that, inasmuch as she undertook to keep them together and to care for and support them, as the evidence shows she did, they all remained members of the testator's family, and she thereby became the head of that family, and under the laws of this State was entitled to a homestead as the head of a family. See Capek v. Kropik, 129 Ill. 509, 21 N. E. Rep. 836, where it was held that, on the death of his wife, a widower, together with his minor step-children, was entitled to a homestead in an entire lot of land which he had held in common with his wife. Moreover, when Mrs. Holloway took the minor children under her care and custody, she stood in the relation of a parent to them, and took upon herself that obligation. She then was under a moral obligation to support and maintain these children, and the authorities hold that such a moral obligation is sufficient to entitle her to have a homestead set apart for the benefit of herself and the minor children. Wade v. Jones, 20 Mo. 75; Connaughton v. Sands, 32 Wis. 387; Greenwood v. Maddox, 27 Ark. 648; Arnold v. Waltz, 53 Iowa, 706, 6 N. W. Rep. 40; Wilson v. Cochran, 31 Tex. 677; McMurray v. Shuck, 6 Bush, 111; Brooks v. Collins, 11 Bush, 622; Bell v. Keach, 80 Ky. 42; Riley v. Smith (Ky.), 5 S. W. Rep. 869; Moyer v. Drummond (S. C.), 10 S. E. Rep. 952; Chamberlain v. Brown (S. C.), 11 S. E. Rep. 439; 7 Amer. & Enc. Law, p. 804; Thomp. Homest. & Ex. § 45. And see Marsh v. Lazenby, 41 Ga. 153; Blackwell v. Broughton, 56 Ga. 390. To the effect that a step-father or step-mother may assume the relation of parent towards the step-children, see 2 Kent, Comm. 192; Sanderlin v. Sanderlin, 1 Swan, 445; Williams v. Hutchinson, 3 N. Y. 312; Murdock v. Murdock, 7 Cal. 511; Capek v. Kropik, 159 Ill. 509, 21 N. E. Rep. 836. Counsel for plaintiff in error relied upon the case of Lathrop v. Association, 45 Ga. 483, which he claims to hold that " a widow is not the head of a family of minor children of a former husband by a former marriage. "It is singular that both of the learned counsel for defendant in error, as well as the editor of the American & English Encyclopedia of Law (volume 7, p. 804), fell into the same mistake. There was really no widow involved in that case. DIVORCE - JURISDICTION—ALIMONY.-One question in the case of Wood v. Wood, 15 S. W. Rep. 459, decided by the Supreme Court of Arkansas, has been of late considerably discussed, viz., the right of a wife to maintain a distinct action for alimony. It was there held that under Ark. Code Pr. § 456, providing that "the action for alimony or divorce shall be equitable proceedings," and the following sections regulating practice therein, a distinct action may be maintained for alimony alone, independent of any action for divorce, and to which the statutory requirement as to residence does not apply. Hemingway, J., says, inter alia: Can the plaintiff prosecute an independent action for alimony, without divorce? "Alimony" is defined to be the allowance which a husband, by order of the court, pays to his wife, being separate from him, for her maintenance. 2 Bish. Mar. & Div. (6th Ed.) § 351. It has been extended by statute to include an allowance made by the court on dissolving the bonds of matrimony. It was provided in the Revised Statutes that the circuit court in chancery "should have jurisdiction in all cases of divorce and alimony, or maintenance," meaning divorce and alimony, or divorce and maintenance. Rev. St. c. 51, § 3. While the jurisdiction was thus regulated, this court held that a wife could not maintain an independent action for alimony, but that the right existed and could be enforced only as an incident to some other right which she was asserting, as, for instance, a right to divorce. Bowman v. Worthington, 24 Ark. 522. Such ruling was in harmony with the language of the statute which conferred jurisdiction of cases of divorce and alimony, only mentioning alimony as an incident to the action for divorce, and as definitive of its scope. Although that ruling was in harmony with the statute, and followed in the line of many English and American cases, it antagonizes others; for there were some English and very many American cases that recognized a broader jurisdiction in courts of equity, and sustained the right of the wife to sue in equity for alimony alone, where her husband separated himself from her without cause, and without furnishing for her a reasonable support. The good sense and reason of the latter cases so commended their doctrine to Judge Story that he recorded his regret that it had not been generally adopted. 2 Story, Eq. $1423a. Mr. Schouler, who seemed to have found the doctrine more generally received than Judge Story thought it, says as to it: "In general, if a wife is abandoned by her husband or refused cohabitation, without fault on her part, and is left without adequate means of support, a bill in equity will lie to compel the husband to support her, without asking for or procuring a decree for divorce." Shouler, Husb. & Wife, § 485. The right to maintain the independent action has been sometimes affirmed, but generally denied, in the chancery courts of England. It is said by some courts that the denial has been occasioned by an excess of caution on the part of the chancery courts, lest they trench upon the jurisdiction of the ecclesiastical courts. The courts of Maryland sustained the jurisdiction before the independence of the States, and other courts adopted the rule as cases were presented that called for expression. Such jurisdiction has been entertained on the ground that it is the duty of a husband to provide suitable maintenance for his wife, and the law affords no remedy to enforce a performance of the duty. Glover v. Glover, 16 Ala. 440; Butler v. Butler, 4 Litt. (Ky.) 202; Purcell v. Purcell, 4 Hen. & M. 507; Jelineau v. Jelineau, 2 Desaus. Eq. 45; Prather v. Prather, 4 Desaus. Eq. 33; Garland v. Garland, 50 Miss. 694; Verner v. Verner, 62 Miss. 262; Galland v. Galland, 38 Cal. 265; Graves v. Graves, 36 Iowa, 310; Jamison v. Jamison, 4 Md. Ch. 289; Hewitt v. Hewitt, 1 Bland. 101; Dailey v. Dailey, Wright (Ohio.), 514; Bascom v. Bascom, Id. 632; Richardson v. Wilson, 8 Yerg. 67; Stew. Mar. & Div. § 179; Browne, Div. & Alim. p. 268. In Canada and a number of the American States, statutes have been adopted that authorized the independent action where a wife, without fault on her part, is left without means of support. BANKS AND BANKING-LIABILITIES OF OFFICERS ACTIONS BY STOCKHOLDERS WHAT CONSTITUTES MISMANAGEMENT.-The case of Wallace v. Lincoln Sav. Bank, 15 S. W. Rep. 448, decided by the Supreme Court of Tennessee, contains much of value and interest to banks, bank officers and stockholders. The many questions considered there may be summed up in the following points: 1. A suit by a shareholder against the directors of a corporation, to recover for losses caused by their inattention and mismanagement, can only be brought when the corporation is disabled from suing, as where the managing officers are themselves to be the defen dants, or where the coporation wrongfully and willfully refuses to sue; and the decree obtained inures to the benefit of the corporation, and gives the complainant no preference or priority over other creditors. 2. The mere refusal of the corporation to bring suit, will not authorize a shareholder to himself conduct such suit. The refusal must appear to have been wrongful, and to have been made by a majority of the board of directors; the refusal of the president alone is not sufficient. 3. Where a corporation is in the hands of a trustee in insolvency, and he declines to sue, deeming himself unauthorized, a shareholder may conduct the suit. 4. The directors of a bank cannot be held liable at the suit of a shareholder for losses alleged to have been caused by their inattention and mismanagement, on proof merely of a large deficit, -the difference between the liabilities of the bank including capital stock and the nominal value of all assets, good and bad; especially where it appears that large dividends were paid by carrying large amounts of paper which subsequently turned out as worthless, and real estate taken for debts, which had depreciated in value. 5. The fact that large amounts of assets were invested in realty, causing great losses from depreciation, is not a wrongful diversion, where it appears that the realty was bought in on sales under foreclosure of mortgages given to secure debts, to prevent a sacrifice. 6. Before the directors of a bank can be held liable, in case of almost total inattention to its management, for losses from loans made by the cashier without their knowledge or consent, it must be shown that the cashier did not exercise reasonable skill, diligence, and prudence in making the loans. 7. An action by a shareholder of a bank against its directors, to recover for inattention and mismanagement, resulting in alleged losses from loans made by the cashier to a firm of which he is a member, though brought in equity, is to enforce a legal right, and is subject to the operation of the statute of limitations. 8. Such action is barred in six years from the time of the loan, under the provisions limiting to six years all actions "on contract not otherwise provided for," for the relation of director to corporation implies a contract to use ordinary diligence in discharging his duties. 9. In an action by a shareholder of a bank against its directors, to recover alleged losses caused by their inattention and mismanagement, the burden is on complainant not only to prove the losses, but that such losses were the consequence of defendants' negligence. 10. It is not responsible negligence in a cashier of a bank to pay the overdraft of a customer of character and business integrity, though not having property subject to execution. Reasonable conformity to the customs and methods in vogue among prudent bankers is the degree of diligence required in such cases. Directors cannot be made liable on mere proof that an account was overdrawn, and a loss thereby sustained. 11. The liability of bank officers for improvidently discounting a note arises at the time the note was taken, and the right of action therefor is barred in six years from such time, and not from the time of the taking of a renewal note in payment of the first note. 12. Bank officers are not liable for a mere neglect to sue notes, thus permitting them to become barred, without proof that they were solvent assets. 13. A director, in a suit between himself and the corporation, or those suing upon the corporate right of action, is not presumed to have knowledge of all that is shown by the books of the company. Such presumption applies only to suits between the bank and a stranger. FORMER JEOPARDY, FORMER CONVICTION, AND FORMER ACQUITTAL. II. To continue the subject with which the article in last issue of the JOURNAL Concluded, on a conviction of grand larceny, an order granting a new trial was, upon appeal, reversed. The trial court was, however, de-ceived into believing that an order denying a new trial had been reversed, and thereupon accepted a plea of guilty of petit larceny, inflicted a fine and discharged the defendant. Afterwards, discovering the deceit, the court set aside the judgment, ordered the money returned, caused defendant to be rearrested and entered judgment upon the verdict; and it was held by the supreme court that the latter judgment was valid, that the plea of guilty of petit larceny was void, and that defendant had never been in jeopardy thereon.27 It was held, in Michigan, that a conviction of burglary upon an information charging that defendant broke and entered "with intent to steal," is no bar to a prosecution for larceny committed on the same occasion;28 and one convicted of larceny has not been in jeopardy for the crime of burglary. But, where an People v. Woods, 23 Pac. Rep. 1119. 28 People v. Parrow, 45 N. W. Rep. 514. 29 Territory v. Willard, 21 Pac. Rep. 301. In this case the defendants had burglarized a saloon and had stolen therefrom a lot of cigars and wines. Two indictments were found against them, one for larceny and the other for burglary. They were first tried for the larceny and convicted, and, upon being arraigned upon the burglary charge, they pleaded the former conviction in bar. Upon the trial of this plea it was admitted by the prosecuting attorney "that the defendants were the same; the saloon from which the goods described in the larceny indictment were taken is the same set forth in the burglary indictment: that the goods described in the larceny indictment are the identical goods which, in the burglary indictment, it is charged the defendants intended to steal." Burglary is defined in the Montana statute to be "the entering of any house, etc., with intent to commit grand or petit larceny, or any felony;" and the court held that, if the defendants entered with the intent to steal, but failed to carry out their intentions, it was burglary only; but, if they carried out the "intent to steal," they were guilty not of burglary only, but might be prosecuted and convicted of both burglary and larceny, citing Territory v. Fox, 3 Mont. 440. See also People v. Curtis, 17 Pac. Rep. 941; Phillips v. State, 3 S. W. Rep. 434, where it is held that, where two indictments are brought against a defendant, one for burglariously entering a house and committing larceny by taking and carrying away clothing belonging to one person, and the other charging the simple larceny of clothing belonging to another person; and indictment charged both burglary and theft in the same count, a conviction for the burglary is held to be an acquittal of the theft charged, and a bar to any further prosecution therefor.30 And, where a plea of guilty is entered in a prosecution for an offense over which the court has jurisdiction, and a hearing is demanded by the accused on such plea, nothing remaining but to pass judgment upon him, jeopardy attaches, and a dismissal thereof by the prosecutor will not enable him to bring the accused to trial again for the same offense." An acquittal of selling liquor on Sundays bars a prosecution for selling to an intoxicated person on any of the Sundays covered by the former indictment;32 and a person who commits the offense of carrying a file into a jail with the intent to aid in the escape of two prisoners, one convicted of a misdemeanor and the other of a felony, may plead his conviction under an indictment for aiding the release of the former, in bar of an indictment for aiding in the release of the latter.33 A conviction for an aggravated assault and battery under an indictment for an assault with intent to murder will not bar a prosecution for murder, after the death of the assaulted party, although the death result from the same transaction;34 and a conviction upon a void proceeding or indictment, when the penalty has not been inflicted, will not bar a subsequent indictment for the same offense.35 After the jury had disagreed, in a trial for larceny, the attorney entered a nolle prosequi, but this was held to be no bar to further prosecution on a new indictment for the same offense; and a discharge on formal objections it appeared that all the articles were taken from the same room, an acquittal upon the first indictment was no bar to the trial upon the second indictment. See also Triplett v. Com., 1 S. W. Rep. 84, s. C., 84 Ky. 193. 30 Turner v. State, 2 S. W. Rep. 619. 32 Attenburg v. Com., 17 Atl. Rep. 799, s. c., 126 Pa. St. 602. But a conviction of selling a pint of liquor without a license is no bar to an indictment for selling it to a minor without the written consent of his parent or guardian. Ruble v. State, 10 S. W. Rep. 262, s. C., 51 Ark. 170. See also Com. v. Sullivan, 23 N. E. Rep. 47. 33 Hursh v. State, 6 South. Rep. 120, s. c., 86 Ala. 604. 34 Curtis v. State, 3 S. W. Rep. 86; Johnson v. State, 19 Tex. App. 453, 53 Am. Rep. 385, 70 Me. 452, 35 Am. Rep. 368, 66 Ind. 223, 58 Am. Rep. 635. 35 U. S. v. Jones, 31 Fed. Rep. 725. 36 People v. Pline, 28 N. W. Rep. 83, s. C., 61 Mich 41 to the jurisdiction, but not on a trial on the merits, will not support a plea of former jeopardy.87 Neither is a defendant entitled to be discharged, who has taken advantage of the errors of law in a former criminal trial, and procured a reversal of the judgment and an order granting a new trial;38 nor where he has been put in jeopardy, but, by his own motion, or with his consent, the jury, before whom he stood, has been discharged. 39 Although a plea of former jeopardy is allowable after the jury is charged with the prisoner, and it is so charged when twelve jurors are impaneled and sworn;40 yet, if the jury had been discharged at the appellant's request, or with his consent, or had been discharged after a reasonable time for deliberation, because they were unable to agree upon a verdict, such discharge would not entitle the defendant to an acquittal. But, where the defendant was tried for murder, the jury disagreed, and in the absence of the defendant were discharged by the court, it was held that a further prosecution of defendant was barred because of the discharge in his absence;42 and where, under an indictment for murder, the defendant pleaded not guilty, issue was joined, a jury impaneled, the witnesses sworn, and the case stated to the jury by counsel for both the defendant and the State, and the prosecuting attorney then suggested to the court a variance between the date on which the murder was alleged in the indictment to have been committed and the date alleged in the original affidavit, and the court thereupon dismissed the indictment, it was held that the defendant could not be again placed in jeopardy for the same offense. 43 Where, on the trial of a capital case, the jury, after being impaneled and sworn, was, with the consent of the prisoner, allowed to 247. See also State v. Parker, 24 N. W. Rep. 225, s. c., 66 Iowa, 586; Jones v. Com., 10 S. E. Rep. 1004, citing and approving Wright's Case, 75 Va. 914; State v. Emery, 7 Atl. Rep. 129, s. C., 59 Vt. 84; Mixon v. State, 28 Am. Rep. 695, s. C., 55 Ala. 129. 37 State v. Britton, 7 Atl. Rep. 679. 38 Haskins v. Com., 1 S. W. Rep. 730. 39 People v. Gardner, 62 Mich. 307. 40 Hilands v. Com., 2 Atl. Rep. 70, s. c., 111 Pa. St. 1,56 Am. Rep. 235. 41 Welsh v. State, 25 N. E. Rep. 883, 885. See also Ex parte McLaughlin, 41 Cal. 211. 42 State v. Wilson, 50 Ind. 487, s. c, 19 Am. Rep. 719. 43 Lee v. State, 26 Ark. 260. separate, and afterwards discharged by the court on the ground that such separation was illegal, it was held that the jury was not discharged under such extreme necessity as to subject the prisoner to be again put in jeopardy of his life for the same offense.# Even where the jury had been out for four days, and, in answer to a question from the court, stated that they "had not, and could not agree upon a verdict," and the court thereupon adjourned for the term, it was held that the proceedings were irregular, and operated as an acquittal of the defendant;45 and where, on a murder trial, after the jury had been sworn, and while the evidence was being heard, a juror announced that he was one of the grand jurors that found the indictment, and the court of its own motion, and against the objection of the defendant, discharged the jury and had another summoned in its place, this was held to be without sufficient cause and to amount to an acquittal;46 yet a nolle prosequi, entered after the commencement of the trial, but before verdict, is no bar to a second indictment for the same offense.47 An acquittal or conviction of an assault and battery is no bar to a subsequent pro ecution for kidnapping, although the two of fenses were committed by the same act;48 but a conviction of simple abduction is a bar to a subsequent prosecution for kidnapping or felonious abduction.49 Where two are murdered by the same act, conviction or acquittal as to one does not bar a prosecution as to the other;50 and where goods of two different owners are stolen at the some time, an acquittal on an indictment for stealing the goods of one will not bar an indictment for stealing the goods of the other;51 but a con 44 Hilands v. Com., supra. 45 People v. Cage, 48 Cal. 323, s. c., 17 Am. Rep. 436. 46 O'Brien v. Com., 9 Bush, 333, s. c., 15 Am. Rep. 715. See also Pizano v. State, 20 Tex. App. 139, s C., 54 Am. Rep. 511. 47 Champeau v. State, 52 Vt. 913, s. c., 36 Am. Rep. 754. 48 State v. Stewart, 11 Oreg. 238. 40 Mason v. State, 14 S. W. Rep. 71. 50 People v. Majors, 65 Cal. 138, s. C., 52 Am. Rep. 295; and see State v. Nash, 86 N. C. 650, s. c., 41 Am. Rep. 472; Teat v. State, 53 Miss. 439, s. C., 24 Am. Rep. 708. Contra: Hudson v. State, 9 Tex. App. 151 s. C., 35 Am. Rep. 632; Quitzlow v. State, 1 Tex. App. 47, s. c., 28 Am. Rep. 396; Clem v. State, 42 Ind. 420, S. C., 13 Am. Rep. 369. 51 Alexander v. State, 21 Tex. App. 406, s. C., 57 Am. |