legal relationship of the party to the case and the perpetrator. But though not strictly an accomplice, inasmuch as she is, in a moral point of view, implicated in the transaction, it would be proper for the jury to consider that circumstance in its bearing upon her credibility." Texas Court of Appeals, June 19, 1880. Watson v. State of Texas. Opinion by White, P. J. CONSTITUTIONAL LAW FORMER CONVICTION-ASSAULT AND MANSLAUGHTER.-The defendant committed a violent assault upon one Morton, March 3d, 1879, and on the fourth day of March was prosecuted before the municipal court of Lewiston, and convicted of assault and battery. On the twenty-third day of March said Morton died of the injuries inflicted by the defendant, and the defendant was thereupon indicted for manslaughter, and when arraigned pleaded the former conviction of assault and battery in bar. Held, that the plea was no bar to the indictment. The general rule is that if the first indictment were such as the prisoner might have been convicted upon by proof

of the facts contained in the second indictment, an acquittal or conviction on the first indictment will be a bar to the second. 4 Bla. Com. 336; Rex v. Vandercomb, 2 Leach's C. C. 708; Stark. Cr. Pl. 355 (1st Am. ed); Commonwealth v. Roby, 12 Pick. 496; 1 Chit. Cr. Law, 453. This general rule is, however, subject to this exception. When, after the first prosecution, a new fact supervenes, for which the defendant is responsible, which changes the character of the offense, and together with the facts existing at the time constitutes a new and distinct crime, an acquittal or conviction of the first offense is not a bar to an indictment for the other distinct crime. Case of Nicholas, Foster's Cr. L. 64; Burns v. People, 1 Park. C. C. 183; Commonwealth v. Evans, 101 Mass. 25; State v. Hattabough, Cent. L. J., Aug., 1879, 87 (S. C. Indiana). While the defendant under the Maine statute may be convicted on the indictment of assault and battery, on failure of proof that death resulted from the injuries inflicted, still he may protect himself from being twice in jeopardy for that offense by pleading in bar the former conviction of the crime of assault and battery embraced in the indictment and not guilty of manslaughter, and then if convicted of manslaughter he shall have judgment therefor. If acquitted of manslaughter he shall have the benefit of his plea in bar as to assault and battery. 2 Hale's P. C. 255, 392; Arch. Cr. Pl. 352; Commonwealth v. Curtis, 11 Pick. 133; Stark. Cr. Pl. 370.

Maine Supreme Judicial Court, January, 1880. State of Maine v. Littlefield. Opinion by Libbey, J.

GRAND JURY — IRREGULARITY IN DRAWING JUROR DOES NOT VITIATE ACTS OF JURY-STATUTORY CON

STRUCTION. The provisions of the second section of the act of Congress of June 30, 1879, prescribing the mode in which jurors in the Federal courts shall be drawn is mandatory; with this qualification, however, that an honest intention to conform to the statute and carry out its provisions in good faith is all that is required. Where a grand jury was drawn under the provisions of this act, and the name of one of the jurors who assisted in finding the indictment was not put into the box by any competent authority, nor drawn from it, and there was no imputation that such name appeared in the venire through bad faith, held, to be a mere irregularity, which would not vitiate the action of the grand jury. U. S. Cir. Ct., S. D. Ohio, May, 1880. United States v. Ambrose. Opinion by Swayne, C. J.

warrant is issued. It has been so held in the case of Queen v. Brooks, 1 Denis. 217. This was an indictment upon 9 Geo. IV, ch. 69. By the fourth section of the statute it was declared: "The prosecution for every offense punishable by indictment, by virtue of that act, shall be commenced within twelve calendar months after the commission of the offense." The offense was committed December 4, 1845. The information before justices and warrant were on December 19, 1815. Brooks was apprehended September 5, 1816, and Gibson, October 21, 1846. The indictment was preferred April 5, 1847. The question was reserved for the opinion of the judges whether the prosecution was commenced in time. They all concurred in holding that the prosecution was commenced within twelve calendar months after the commission of the offense. To the same effect see 1 East's P. C. 186; Rex v. Wallace, R & R. C. C. 369; and Rex v. Phillips, Russ. & Ry. 369. U.S. Cir. Court, N. D. Georgia, July, 1880. State of Georgia v. Post. Opinion by Woods, C. J.

OBITUARY.

LORD CHIEF Baron Kelly.

N the recent death of Sir Fitzroy Kelly, Lord Chief of Exchequer, English

oldest judge. He was born in 1796. He had neither a public school nor a university education. He had held the offices of Solicitor-General and Attorney-General and had sat in Parliament. He began his legal career as a special pleader, aud was all his life famous as a critic of pleadings, but was heartily in favor of consolidation and codification. He brought in a bill in Parliament to abolish capital punishment in all cases except treason and murder. When at the bar his earnings amounted to £25,000 annually, an income exceeded The Times says: "As a judge, the Lord Chief Baron by none of his contemporaries except Lord Selbourne,

showed the soundness for legal knowledge for which his career was a guaranty. His courtesy to those who But he appeared before him was unexceptionable. was a very slow judge, who asked numberless quesfacts; and while the matter of his decisions was seltions about comparatively unimportant dates and dom impeached, his Division got through less work than any other, and was less popular than any with suitors. He had some difficulty in hearing counsel, and more in making himself heard. His defects as a judge, indeed, were largely physical defects, due to the infirmities of age. His mind remained clear and his determination unshaken almost to the very end, and one of his acts a day or two before his death was to write a long letter of advice to a learned colleague." He was a bounteous dispenser of hospitality, very fond of society, a great converser, a warm friend and a bitter enemy. It is possible that with him the title of Lord Chief Baron may perish, for under the new judicature act the Queen has power, by recommendation of a council of judges, to abolish the title on the post becoming vacant. The Solicitors' Journal says: "In respect to longevity, Sir Fitzroy Kelly kept up the traditions of his office. Only nine appointments of Chief Baron have been made during the last ninety years. Sir William Alexander was appointed at the age of sixty-three, resigned at seventy, and died at eightyone. Lord Lyndhurst, who occupied the post in the interval between his first and second Chancellorships, attained the age of ninety-two. Lord Abinger was appointed at sixty-five and died at seventy-five. Sir Frederick Pollock was appointed at sixty-one, resigned at eighty-three and died at eighty-seven; and Sir Fitzroy Kelly was appointed at seventy and died at eighty-four. The title of Chief Baron appears to have been first used during the reign of Edward II. Walter de Norwich was appointed a Baron of the Ex

THIS

HIS work is designed on the same plan as the same author's recent work on Negligence, of which we have spoken very highly, and which more intimate acquaintance leads us to value more and more highly every day. The present volume contains 49 leading cases. The division of subjects is as follows: the obligation to receive and carry; when the relation of carrier and passenger subsists; the obligation to carry according to advertisement or contract; the obligation to furnish safe and convenient stations and approaches; liability for negligence; contributory negligence; imputed negligence; police duties; regulations of carriers; liability for assaults by his servants; contracts limiting his liability for personal injuries; use of another's means of transportation-liability for consequential injuries; liability for damage by fault of connecting lines; street railway companies; carriers by water; liability in respect to baggage; remedies, procedure, and damages. The details of the execution are similar to those in the work on Negligence, and the work is marked by the same excellencies of selection, annotation and general editing. We may well economize space and time by saying that we regard these works of Mr. Thompson as among the most conscientiously and intelligently executed, the most interesting, and the most useful practical law books ever issued from the American press. The volume, like its predecessors, is admirably printed.

LAWRENCE'S DROIT INTERNATIONAL. Commentaire sur les Eléments du Droit International et sur l'histoire des Progrès du Droit des Gens de Henry Wheaton, par William Beach Lawrence. Tome quatrième. Liepzig, F. A. Brockhaus, 1880.

This edition of Mr. Lawrence's commentary on Wheaton must be well received by a distinguished circle of the legal profession-those who devote themselves to the study of public law. Wheaton's contributions to the law of nations are destined to a permanent place amidst the best of the text on that subject. The Elements of International Law" and "The History of the Law of Nations" are deservedly famous; and Mr. Lawrence's commentaries - written in the "diplomatic language "—must add to this wide celebrity.

Few departments of modern scientific thought have advanced more rapidly than the law of nations; and this progress needs to be constantly noted and to have attention directed to it. Mr. Lawrence's work is, in this respect, a most valuable addition to Wheaton, but it is also, in many other respects, a valuable addition. The present volume of the commentaries is concerned with the second part of Wheaton's "Absolute International Rights of States," known as "The Rights of Civil and Criminal Legislation," and particularly with the subdivision, Consular Jurisdiction" (Juridiction Consulaire), “Independence of the State as to its Judicial Power" (Indépendance de l'Etat quant au pouvoir judiciaire), "Extent of the Judicial Power over Crim

This volume possesses the merit of a most excellent "table des matières," referring to the theme of each paragraph, which is also noted in the margins of the pages a practice not only conducive to clearness of style, but of great assistance to the reader. The typographical work is excellent.

As America, both before and since its independence of European domination, has done so much toward a practical building up of the modern law of nations, it seems particularly fit that American authors should enter the domain of public law. It is a pardonable source of gratification that another American now follows so ably in the footsteps of Wheaton.

CORRESPONDENCE.

RELEASE Of Dower.

Editor of the Albany Law Journal:

If your correspondent, "F. L. M.," will turn to the case of Gillilan v. Swift, 14 Hun, 574, he will find that his question concerning the omission of the usual words, "dower and right of dower," has been directly answered by the courts of this State. While your answer, without reference to this case, is right in its result, it seems to me, in one respect, to fall short of your usual accuracy of statement. The deed does not, it seems to me, "carry the interest of the wife in the premises," as you suggest, but it rather estops her from asserting an interest. The difference may be purely theoretical, but it nevertheless exists. I am, sir, faithfully yours,

FRANCIS LYNDE STETSON.

NEW YORK, Oct. 11, 1880.

Editor of the Albany Law Journal: As a confirmation of your answer to the query of "F. L. M.," page 298, vol. 22, see Elmendorff v. Lockwood, 57 N. Y. 322. H. E. MORSE. CLAYTON, Jefferson Co., N. Y., Oct. 11, 1880.

[We think our theory is the right one. It is difficult to conceive of a deed that shall estop a married woman, in the absence of fraud on her part, unless it effectually conveys her interest, and if it conveys her interest there is no need of resorting to the theory of estoppel. Our first correspondent will find that the reference of our second correspondent strongly confirms our view. -ED. ALB. L. J.]

AN INDIAN SUMMER PROBLEM.

Editor of the Albany Law Journal: Reading the answers of your correspondents to "Midsummer's" problem, suggests to me to present to them and you the following:

A being the owner of three lots, X, Y and Z, executes a mortgage upon them all, which is duly recorded. He then alienates them as follows: 1st lot X to B; 2d lot Y to C; 3d lot Z to B. B then alienates his two lots as follows: 1st lot Z to D; 2d lot X to E. Upon foreclosure of the mortgage, in what order should the lots be sold? D. M. W.

CAMBRIDGE, N. Y., Oct. 4, 1880.

NEW YORK COURT OF APPEALS DECISIONS.

appears to be incomplete. There is no such alternative in England. In English criminal procedure the jury consists of 12 men, who must be unanimous in their verdict of guilty or not guilty; when not being able to agree, after hours of wrangling together, they are dismissed, thereby occasioning a new trial. In Scotland the thing is conducted more in accordance with human nature. The jury is composed of 15 men, who, if not unanimous, may decide by a majority, such as 8 to 7, or possibly 14 to 1; by which means a juror with twisted notions, resolved on being singular, as often happens, is unable to thwart the ends of justice. The decision by a majority is accepted without demur. In the trial of civil cases, a latitude is also allowed. The jury consists, as in England, of 12 men; but if they have been in consultation for three hours a majority of nine is sufficient for a verdict. If after nine hours

Oct. 12, 1880:

Judgment affirmed with costs-Atlantic State Bank, in Brooklyn v. Savery and ors., impleaded; Argotsinger v. Vines; The People ex rel. Larrabee v. Mulholland, police justice, etc. Judgment reversed and new trial granted, costs to abide event - The Trustees of Forrestville Baptist Society v. Farnham and ors.; Winegar v. Fowler. Judgment affirmed, and case remanded for the proper sentence to the court of sessions of the county of Albany The People v. Cronin. Order affirmed with costs-In re Churchill, to vacate, etc.; Tompkins v. Greene; Phinney v. Orth; Schell (Rodman) v. Devlin and ors., executors; Ammerman v. Peck; Ammerman v. Moore; In re Attorney-General v. The Guardian Mutual Life Insurance Company.- Orders of General and Special Terms reversed with costs, and motion granted, costs to be paid out of the fund-The People v. The National Trust Company of New York. Order of General Term reversed and judgment on report of referee affirmed with costs- Hamlin v. Sears.

MR.

NOTES.

R. JOHN D. PARSONS, JR., of this city, has in press, to be issued in the course of three weeks, a volume of National Bank Cases, edited by Irving Browne, editor of this JOURNAL, on the same plan as Mr. Thompson's volume of like cases. The forthcoming volume will contain all the cases to date since the former volume, and also a copy of the National Banking Act, with sectional references to the cases in the two volumes. - In our note last week of the com

plaints of the Chicago Legal News, on Judge Harker's decision prohibiting a woman from serving as master in Chancery, we distinctly wrote the name of the editor as "Mrs." Bradwell, but the compositor or proof-reader, wiser in his generation than the editor, carefully corrected it to "Mr." We hasten to apologize before the News annihilates us.

Trial by jury, that much-honored palladium of civil rights, differs materially in the two countries. A Scottish criminal trial is a model of fairness and deliberation. The accused is in good time served with a very precise indictment, along with a list of the witnesses to be used in evidence against him. At the trial the jurors are chosen by ballot, and each is furnished with a printed copy of the indictment, with paper, pen and ink to write notes of evidence as it proceeds. The trial begins by the clerk of the court reading the indictment, by which means the exact nature of the accusation is openly and clearly defined, and there is no need for a lengthened prefatory harangue by counsel for the prosecution. The indictment being read the evidence is at once proceeded with. Any one can compare this precision with what occurs, and is occasionally complained of, in England. A Scottish jury may give a verdict of guilty, not guilty, or not proven, this last alternative being adopted when the evidence

missed. These Scotch arrangements seem to be in all respects more rational than the practice prevalent in England and Ireland. No one ever heard of a miscarriage of justice, civil or criminal, in Scotland, owing to decisions by a majority. The accurate and impartial method of summoning Scotch jurors, special and common, in itself merits commendation.

Apropos of Judge Hammond's learned decision and note, in United States v. Coppersmith, ante, 250, we call attention to the following extract from the Westminster Review, Vol. XX, p. 72, A. D. 1838; 1 Am. Jur. 253: "The favorite classification of offenses is into felonies aud misdemeanors; though these epithets give uo more idea of the nature of the offenses, to which they are applied, than if two Chinese words were used in their stead. A very vague idea of the quantum of punishment, which may be awarded to the offender, is the full extent of the information conveyed by them; for some misdemeanors are punished as severely as many felonies, always excepting that iniquitous adjunct to the punishment of all felonies, the forfeiture of goods and lands. Should an ignorant man wish to know something more of the meaning of these terms, he may learn that a starving child who steals a pennyloaf is guilty of a felony, while a man who forges the mark of the Goldsmith's Hall on plate to any amount is only guilty of a misdemeanor. The man who administers an unlawful oath is guilty of felony, but the man who falsely swears away the life of another is only guilty of a misdemeanor. An apprentice, who appropriates a shilling to his own use received on his master's account, commits a felony, while the man who maliciously destroys the dam of a mill-pond is only guilty of a misdemeanor. So much for classification and consistency."

From the same volume of the Jurist, p. 254, we extract the following form of the advocate's oath prescribed by law, adopted by the representative council of Geneva, June 20, 1834: “I swear before God, to be faithful to the Republic and Canton of Geneva; never to swerve from the respect due to the tribunals and to the authorities; not to advise or maintain any cause which does not appear to me to be just or equitable, unless in the defense of an accused; not to employ knowingly, in order to maintain the causes which shall be confided to me, any means contrary to the truth, and not to attempt to deceive the judges by any artifice, or by any false exposition of facts or of law; to abstain from all offensive personality, and not to advance any fact against the honor and the reputation of the parties, unless it be indispensable to the cause, with which 1 shall be charged; not to encourage the commencement or the carrying on of any process, from any motive of passion or of interest; and not to refuse from any personal considerations, the cause of the feeble, the stranger, or the oppressed."

The Albany Law Journal.

WE

ALBANY, OCTOBER 23, 1880.

CURRENT TOPICS.

E have noted two recent utterances from the west, one in reference to the bench, the other to the jury. Mr. Gantt, in the current number of the Southern Law Review, in an article entitled "Judicial Nominations," says some things to which we heartily assent. His belief that judicial nominations, if left to the bar, would without exception be good, coincides with our own. “The bar naturally and necessarily desires to see the best of its number advanced to the place of honor." "Not only is the bar the most competent to judge of qualifications for the judgeship, but it is more directly and vitally interested than any class of the community in the selection for the bench of him who possesses them in the fullest measure." We would like to see judicial nominations always made by the bar. But we do not agree with Mr. Gantt that "the practice of electing judges by popular vote is essentially vicious." We think it is theoretically right that the citizen should elect his judge as well as his lawmaker or his governor. We do not know why the principal should directly appoint his own legislative and executive officers, and in the selection of judges be compelled to express his choice only through an agent of his own selection. And in practice we believe that elected judges have generally been fitter than appointed judges. Such certainly is the history of our State. Undoubtedly we shall have Cardoza and Barnard cited against us, but we reply that the same influences which produced their election would probably have produced their appointment, and when they were elected they were unexceptionable men. Certainly abler men have rarely sat on the bench in New York city. Mr. Gantt's idea springs from a distrust of the people which we believe to be unfounded.

The same distrust of the people is disclosed in Mr. Thompson's dedication to his excellent little book, "Charging the Jury." Although the author is a contingent judge - we hope to be elected and although his book is dedicated to an excellent judge, we hardly think there is any necessity or excuse for his somewhat studied attack upon the jury system, and his expressed preference for a one-man jury, especially as he admits that there is no probability of any radical change of system. Mr. Thompson complains of the uniform verdicts against corporations. In our opinion they are quite right. If it were not for the jury, great corporations, like railroads and insurance companies, would oppress the community by their recklessness and unconscientiousness. The jury are an indispensable counteracting influence like the different metal in a chronometer. When Mr. Thompson says the pro- | vince of the jury "is in many cases a judicial White VOL. 22.- No. 17.

Friars, whose privilege of sanctuary is pernicious to the best interests of society," it seems to us he sacrifices fact to a clever expression. Mr. Thompson complains of the unfitness of a jury, through inexperience and ignorance, to pass on particular states of facts. Well, where will he get his Admirable Crichton of a judge who is any better fitted? The one as well as the other must be instructed by expert testimony for the occasion. We dissent from Mr. Thompson's view that a judge is much better qualified to weigh evidence than a jury. His very "expertness" disqualifies him. Let us ask Mr. Thompson why, if judges are so much fitter to pass on questions of fact than juries, it is deemed necessary in so many communities to prohibit the judges by legislative enactment from expressing their opinion on the facts to the jury? The truth is that judges and referees are very poor arbiters of fact, and that juries are right nineteen times out of twenty, and we believe, even ninety-nine times out of a hundred. Such is judicial experience and testimony. Do not the best judges shrink from passing on disputed facts? Is there a judge on the bench who would prefer to submit his right of person and property in a case of conflicting testimony to a judge rather than a jury? We never heard of one, and we believe if we could poll the bench we should hear an almost unanimous voice in favor of the theory of the jury system. In truth, Mr. Gantt's and Mr. Thompson's present utterances are simply those forms of speech in which intelligent men are prone to indulge about the time when they are temporarily tired of a republic, fear that men are not fit to rule themselves, and yearn for a strong government.

A correspondent, in commenting on our remarks on the comparative number of reversals in the New York and in the Illinois Supreme Court, calls our attention to the fact that the law under which Bradwell's Reports are issued requires that no opinions should be published except in cases of reversal. We were aware of this fact, and our point was that the reversals in our Supreme Court in three years would not fill six volumes. We agree with our correspondent that the limitation of the reports to reversals is inexpedient. Our correspondent has ascertained that judging from one district "fully two-thirds of the cases are affirmed." Our recollection of statistics is that in our court at least threequarters are affirmed.

Two rather novel points as to the rights of authors in their literary productions have been recently ruled, one in England, the other in this country. Miss Genevieve Ward, it seems, has bought from Messrs. Merrivale and Grove the privilege of acting for a term of years a play called "Forget me not." Miss Ward has seen fit, in putting the play upon the stage, to omit a single character. Messrs. Merrivale and Grove sued to restrain her from making this omission, and Lord Coleridge has denied the application. The London News asks: "If the manager of a theatre has a right to alter a play which