ceiving and causing an injury, and the person injured. But there might be other cases equally meritorious with these (see English v. Beard, 51 Ind. 489; Bodge v. Hughes, 53 N. H. 614); and therefore after enumerating wife, child, parent, guardian and husband, the statute extends the right of action to other persons injured. Does it intend among the other persons who may sue, to include the person himself whose intoxication causes or is the occasion or reason of the injury? Doubtless the statute might have extended its benefits to the intoxicated person, but if such were the intent it is surprising that it was not distinctly and unequivocally expressed. It was as easy to designate the party himself as it was his wife, child, guardian, etc. Moreover the man himself may generally be supposed to be injured in some degree by intoxication, so that his case would furnish the most frequent occasion for a suit if he should see fit to resort to legal proceedings. It would be very remarkable that a statute in enumerating the persons

who should share in its benefits should omit to name the very one who would most often be entitled to its aid. But it is a sensible and well-understood rule of construction, that when after an enumeration the statute employs some general. term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named. Hawkins v. Great Western Ry. Co., 17 Mich. 57; McDade v. People, 29 id. 50, and cases cited. Apply this rule here, and the party intoxicated is excluded. The persons enumerated are persons who stand to him in special relations, and it is therefore to be assumed that 'any other person' who may sue must also stand to him in some special relation so as to be injured by his intoxication or by the sale, etc., to him. A creditor might perhaps stand in that relation under some circumstances, or a contractor, or servant, or the master of a vessel, or a traveller passing him in the street, and so on. But he could not stand in any such relation to himself, and therefore cannot be understood as embraced in the terms, 'wife, child, parent, guardian, husband or other person,' injured in person, property or means of support by himself, or by reason of his intoxication, or by the sale, etc., of intoxicating drinks to himself. The statute evidently contemplates three parties - seller, receiver and injured party in all cases." This seems a

novel case.

In Werner v. Edmiston, 24 Kans. 147, the verdict was ascertained and determined solely by adding the sums named by the respective jurors, and dividing the sum total by twelve. This was not done for purposes of consultation, but by distinct agreement that the result of these arithmetical processes should be the amount of the verdict, and it was immediately at the close of the calculation so written out and returned. This was held error, sufficient to compel a new trial. Such a verdict was also set aside as a chance verdict, in Goodman v. Cody, 1 Wash. 329. The same doctrine was held in Smith v. Cheetham,

3 Cai. 61, Kent, C. J., dissenting; Allard v. Smith, 2 Metc. (Ky.) 297; People v. Barker, 3 Wheel. Cr. Cas. 19; Harvey v. Rickett, 15 Johns. 88; Roberts v. Failis, 1 Cowp. 338; Grinnell v. Phillips, 1 Mass. 541; Warner v. Robinson, 1 Root, 194; Wilson v. Berryman, 5 Cal. 44. The contrary was held in Cowperthwaite v. Jones, 2 Dall. 55. But such figuring for a verdict does not vitiate the verdict unless there was a positive agreement to abide the result. Thompson's case, 8 Gratt. 637; Dana v. Tucker, 4 Johns. 488. In Turner v. Tuolumne Water Co., 25 Cal. 397, such a verdict was held not to be a chance verdict within the statute, but was said, obiter, to be vicious, within the above authorities. The verdict, however, was not set aside. Notwithstanding the agreement to abide the result of such figuring, if a different verdict is adopted, it will not be void. Thompson's case, supra; Bailey v. Beck, 21 Kans. 462.

The ruling of Judge Osborn, of the New York Supreme Court, in the case of People v. Briggs, that a wife is not a competent witness against her husband in a criminal proceedi̇ng (ante, 361), is sustained by a recent decision of the Mississippi Supreme Court, in Byrd v. State, 57 Miss. 243. The Mississippi statute is very similar to ours; its language is: "Husband and wife may be witnesses for each other in all criminal cases, but they shall not be required to testify against each other, as witnesses for the prosecution." In civil cases, the statute makes them witnesses for each other. The court said: "The learned judge who presided in the court below held that under this section the wife may be a voluntary witness for the prosecution, against the husband's consent. We are constrained to differ from him in the construction he has placed on this statute. The statute is in derogation of a very ancient and well-established rule of the common law, based, as we have above seen, in great part, upon grave reasons of public policy, having reference to the preservation of the happiness of parties joined together in the marital relation." "The rule of the common law excluded them as

witnesses both for and against each other, in criminal as well as civil cases." "If the Legislature had intended to make them witnesses against as well as for each other, it would have been an easy matter to express that intent in unmistakable language. No reason is perceived why the Legislature should not have done so, if indeed they had that intent; nor is it easy to give a satisfactory reason why the Legislature should make them witnesses against each other in criminal cases, when it is undoubted that they are restricted in civil cases to being witnesses for each other. The whole force of the implication, that the Legislature intended to allow one to be a voluntary witness against the other in criminal cases, arises from the use of the words, but they shall not be required to testify against each other, as witnesses for the prosecution,' following immediately after the provision allowing them to be witnesses for each other, and as a part of the same sentence. We regard this as rather an over-cau

tious insertion, to prevent an apprehended construction of the preceding words, than as engrafting a new and independent provision upon the statute, which would be the case if it allowed the examination of one against the other, in case the party offered as a witness did not object. But if we are to construe this language to mean that the Legislature thought that by the common law husband and wife might be required to testify against each other when they were allowed to testify in behalf of each other; and to infer that this provision was inserted to prevent the operation of such a rule without the consent of the party offered as a witness, it does not follow that we are to construe this provision as making this erroneously-supposed rule of the common law a part of the statutes of the State. An enactment of the Legislature based on an evident

misconception of what the law is will not have the effect, per se, of changing the law so as to make it accord with the misconception."

In Grangers' Ins. Co. v. Brown, 57 Miss. 308, a life insurance company defended an action on a policy, on the ground that the insured had falsely warranted that he had never received any serious personal injury, whereas his skull had been fractured in boyhood, and had been healed by trephining. To prove this, they proposed to disinter his body, after the suit had been pending eighteen months, on the sole testimony of his physician that the deceased had told him that he had been told of such an accident and operation. The counsel for the plaintiff argued: "It is complained that the court refused, on the showing made, to violate the sanctity of a private cemetery. The proposition is revolting. To break the signet of the grave, and take from its resting-place the sacred property of relatives to gratify the corporation's mercenary curiosity, would be worse than Shylock's demand. Is it reserved for this age and this court to decide that the dead may be taken from their sepulchres, inspected, and presented in their awful silent helplessness to the public gaze? A more horrible thought can scarcely be conceived." The court said: "We are not prepared to say that in a proper case the court, in the interests of justice, should not compel the exhuming and examination of a dead body which is under the control of the plaintiff, if there is strong reason to believe that without such examination a fraud is likely to be accomplished, and the defendant has exhausted every other method known to the law of exposing it. We are prepared to say, however, that such an order should be made only upon a strong showing to that effect. It would be a proceeding repugnant to the best feelings of our nature, and likely to be in many cases so abhorrent to the sensibilities of the surviving relatives, that they would prefer an abandonment of the suit to a compliance with the order. Without undertaking to define with accuracy what circumstances would justify the making of such an order, we think that a case calling for it was not shown in this instance."

LEGAL DEFINITIONS OF COMMON WORDS. V.

A

of a notice under the Burnt Records Act, so called, Hitt, 75 Ill. 51, was a case where the legality published in the Chicago Legal News, was called in question, on the ground that it was not a newspaper, it being devoted principally to the law and not claiming to be a newspaper. The court held that such a paper was a newspaper within the meaning of the statute, and laid down the following definition of a newspaper within the statute for the publication of legal notices. A paper that, while it may be devoted principally to the dissemination of legal intelligence, makes reference to passing events, contains advertisements, brief notices of legislative bodies, personal and political items of interest to the general reader, as well as the legal profession, will be within the statute in question, although its circulation is confined to lawyers and business men, as a class. The court said: "Thus it will be seen it comes substantially at least within the definition given by lexicographers of a 'newspaper.' It is none the less a 'newspaper' because its chief object is the publication of legal news. Many newspapers published in this and other countries are devoted chiefly to special interests, such as religious and political newspapers, others devoted exclusively to literature, that contain advertisements, news items, personal and political, brief notices of matters of special public concern, and reference to proceedings of legislative and other public bodies. So it is with this journal. Besides legal it contains other items of news, not only connected with the bench and bar, but others of a general interest. It is that class of journal that will circulate among lawyers, real estate and other business men, for it contains information in regard to sales of real estate, whether under judicial process or under powers."

In Kellogg v. Carrico, 47 Mo. 157, it was held that a journal devoted to the dissemination of legal intelligence is a newspaper, and that publication in it imparted notice of sale under a trust deed. The court said: "The Legal Record and Advertiser was printed in St. Louis in the form of a newspaper, and was issued to its subscribers daily except Sundays, when the publication was omitted. It was devoted to the dissemination of general legal intelligence, and engaged extensively in legal advertising, including the publication of notices of sales under deeds of trust, and sales on execution and all judicial sales. It was a law and advertising journal, and so, in a limited sense at least, a newspaper; for whether a newspaper or not is a question that cannot be determined by a consideration alone of the kind of intelligence it disseminated. It is not the particular kind of intelligence published that constitutes one publication a newspaper rather than another. Newspapers are devoted to the dissemination of intelligence on a great variety of subjects, such as politics, commerce, temperance, religion, and

A stable is a "building," within the statute of burglary. Orrell v. People, 94 Ill. 456.

66

A mail agent, travelling on a railway, is a passenger," although no specific fare is paid by or for him. Price v. Penn. R. Co., Phila. Com. Pleas, ante, 391. The court remarked: "Webster defines a passenger: 'One who travels in some conveyance as a stage coach or steamboat.' The fact that a man is employed on his travels does not exclude him from being a passenger in the popular acceptation of the term, nor does it in view of the statute, else why the proviso excepting passengers? While in our view of the case the deceased was carried for hire, in view of the many authorities, some of which will hereafter be referred to, we deem it immaterial as to whether or not he was carried for hire or carried free, nor is it material that he was carried on the contract of another with defendant."

A wife is not an "other person" from her husband, within the meaning of a statute forbidding malicious damage of the property of "any other person." So a husband may smash his wife's sewing-machine with impunity. So held in State v. Nugent, New Jersey, ante, 410. But we believe that it has never been held that if a husband murders his wife he simply commits suicide. At all events the courts generally hang him for such suicide. See also, Brooks v. Cook, ante, 442.

A racing-park association does not carry on a "public exhibition of feats of horsemanship," nor a "show." U. S. v. Buffalo Park, 16 Blatchf. 189.

W

"RYE AND ROCK."

E have been favored with a copy of the brief of appellant's counsel, in the case of Van Beil v. Prescott, lately decided in our Court of Appeals. Counsel sometimes doubt whether the judges read their briefs, but there can be no doubt in this case that the judges read every word, and ought to have laughed at every page of the fifty brilliant pages. It seems dif.. ficult to select passages from such a production, but there are some things here which the profession would not willingly let die if once they knew them. So we will select a few of the most striking passages. We premise by explaining to the unsophisticated that "Rye and Rock" means (so we are told) rock caudy dissolved in rye whisky. We believe it is a medicine. The peroration is as follows:

"Plaintiff adopted 'Rye and Rock' as a trade-mark in December, 1877, and immediately commenced advertising it for sale on a plan large and liberal enough to spread its fame in ninety days as far and wide as the light of the press could travel. Its fame as a curative, and that too of a disease that had heretofore baffled medical skill, seems to have come forth, Minerva-like, full-grown and fledged at a single bound, and in the suddenness of its development as well as in the universality of its popularity, it stands to day without a rival outside of elevated railroads. By the first of September, 1878. plaintiff had made by the dint of per sistent publications those three words' Rye and Rock,' words of magic, and the demand for it among pulmonary and malarial invalids universal. The loud, long and lusty cry that went up and kept going up, not merely from waste places, but from populous citiesnot only from restaurants and sample rooms, but also from drug stores. was bound, as a natural matter of course, to attract the attention and stimulate the ag

gressive cupidity of liquor dealers into action, especially of that class whose brains were only equal to the recognition of results. In other words, with just foresight enough to appreciate a demand another man's money wisely invested in a bold advertising venture had created-just liberal enough to commence advertising after another man, by the dint of dollars, had spread

'From earth's remotest bound to ocean's loneliest shore,' enough of that genial and germinating light to warm into life every seed scattered upon the earth's broad face by timid hands, and with just integrity enough not only to stealthily lay their felonious fingers upon the legitimate offspring of another man's genius and enterprise, but even to stoop to purloin the pet appellation with which, when he stood purse in hand, solitary and alone, sponsor for the child's legitimacy at the baptismal altar, its christening was consummated. Had the young stranger succumbed to any one of the mortal maladies such juvenility is heir to, no one of them would have worn crape at the funeral or followed after that hearse. They would all have been found ready to swear that the brat was reputed to be Van Beil's foundling, about whose nativity they knew and about whose fate they cared nothing. But since, unlike frail flesh, it does not seem to have been born to die, but is destined to flourish in immortal youth, it would seem every old superanuated tipple vender in the land is ready to swear to its legitimacy, and when and where it was born and christened, and who is its father and its god-father."

The argument that the words in question are merely descriptive is answered as follows:

"On the trial of this case General Foster insisted that 'Rye and Rock,' like 'mess beef' and 'salt pork' was descriptive, and I answered him then and there thus: 'On this point plaintiff's counsel feels too little concern to tax his time with an answer. When a court can be found capable of holding that the word''rock' don't mean and describe rock, but does mean and describe not only rock candy,' but crystallized rock candy and nothing else, and that the word 'rye' does not mean 'rye,' but is bound to mean 'rye whisky' and nothing else, and that those two words united can under no probable or possible contingency, be made to refer to any thing else but crystallized rock candy dissolved in whisky distilled from a cereal heretofore supposed by lexicographers to have been symbolized by those three letters, r-y-e, then the General's theory of the similitude between mess beef,' 'salt pork' and 'Rye and Rock' will not sound quite so quizzical as it now does." "But let us go at once down to the very bed rock of this assumption that our trade-mark is descriptive. What do we sell? Candy dissolved in whisky. Is either of those words in our trade-mark? No. Is there a synonomist living able to demonstrate, either through the origin, separate use or symbolism of these words a similar significance? Down to this date no effort of the kind in the wide world of letters has ever been made. Our first word is 'rye.' What is rye? It's a cereal. What are its constituent elements? An analysis will show albuminoids, ash, carbo-hydrates, crude fibre and fat. Now, how is whisky made? By distillation of grain in water. What is water? Hydrogen and oxygen. nothing more. Then in 'rye' it would seem there is not a single liquid element and distillation does not dissolve rye, but simply extracts its essence. By what authority, then, can it be pretended that the name of a cereal that contains neither hydrogen or oxygen describes a liquid 90 per cent of which is hydrogen and oxygen? What is the other word that has been held to be descriptive? Rock.' What does the learned geologist tell us rock is? Calcite, dolomite, gypsum, anhydrite, salt, quartz, orthoclase, albite and the related triclinic, feldspars, nephe

It

line and certain zeolites, the micas, chlorites, talc, serpentine, olivine, pyroxene, hornblende, garnet, epidote, staurolite, kyanite, andalusite, tourmaline, graphite, magnetite, hematite, corundum and pyrite. What are the constituent properties of candy? would take four pages to give a proper definition of sugar alone. I'll spare you the infliction by simply stating that there is not in candy a single constituent found in rock, nor in rock one found in candy. How, then, can rock be judicially held to symbolize candy, and the words 'Rye and Rock,' while simply tied together with a conjunctive conjunction, and owing no allegiance to the tyranny of context, nevertheless held

to mean and describe rye whisky and rock candy and nothing else? What does plaintiff sell under his trade-mark? Rye? No. Rock? No. If he did, no wise, learned and just court could be expected to give us a reversal. This decision amounts to the conclusion that 'rock' don't mean or describe 'rock,' but something more, to wit: not only candy, but a rare quality of crystallized candy; and that the word 'rye' does not mean or describe 'rye,' but something more, to wit: rye whisky.' It has invaded the broad fields of science, the hoary history of mythology, the blooming gardens of horticulture, the ornithological kingdom, the earth's bowels, mountain tops and river beds, and by the dint of a single assumption driven the word 'rock' from all its old haunts. There are over 250 cities, towns, post-offices and railroad stations, the names of which are Rock' or 'Rye,' or either commence or end with one or the other of those two words, saying nothing of mountains, rivers and ravines which have been similarly christened. Ornithologists tell us of the 'rock-dove,' 'rock-pigeon,' and that enormous bird the 'Roc,' which has lived in Arabian tradition thousands of years. Horticulturists speak of the rockplant,' 'rock-cress,' 'rock-wood,' 'rock-moss,' 'rockrose' and 'rock-cork,' which is a variety of the asbestos, the fibers of which are loosely interlaced. The sea swarms with 'rock-cod' and 'rock-fish.' gists speak of 'rock-ruby,' 'rock-crystals,' rock-salt,' 'rock-shell,' 'rock-soap,' 'rock-milk,' 'rock-water,' rock-butter' and 'rock-alum.' Naturalists speak of the 'rock-doe,' 'rock-goat' and 'rock-rabbit.' Petroleum is described by lexicographers as 'rock-oil' and 'rock-tar.' Then the word 'rock' is known to every ten-year-old country boy on the continent whose mother does her own spinning, as the name of the distaff of her spinning-wheel.

Geolo

"What 'rock' may happen to mean, depends entirely upon the context in which it is found.

"Shakespeare employs the word 'rock '53 times, and every time it is dependent for its meaning upon the context. Frequently he introduces it with an adjec- | tive, which, when you think of the havoc Prescott's Rye and Rock' has made among his patrons, could you believe Avon's immortal bard capable of meddling with the business projects of men unborn, you would have to accept as a prophetic warning, especially in their disjecta membra, against Prescott's patronage. For instance, in 'Two Gentlemen of Verona,' Julia speaks of a 'ragged, fearful, hanging rock.' If defendants could not find a living witness forgiving enough to testify for them, what must we naturally infer from such a strange and suspicious circumstance? Certainly if their rock was not 'ragged,' that it must have made his patrons so, and if so, that it must have been indeed a 'fearful' rock, and from the number of executions with which it was probably mixed up, is well described as a 'hanging' rock. Then Bottom seems to have his eye on Prescott's property when he alludes to a 'raging rock. Saltar (in the Merchant of Venice') seems determined to be understood as wanting to be offensive to defendants as he bluntly blurts out the descriptive phrase 'dangerous rock.' Shakespeare seems to have had Prescott's rock on the brain,

for in his Henry V,' and also 'VI,' such allusions as 'galled rock,' 'dreadful rock' and 'fatal rock,' point almost malignantly at poor Prescott, whose coming rock was then sending its shadows centuries in advance of its own arrival. Pistol, who had lost the courage to live without finding enough to die, asks death for a farewell treat at Prescott's bar in these memorable words, 'rock me to sleep.' Poor Pistol sleeps no sounder now than he soon would sleep were he living today and permitted Prescott to rock' him often. Were Burns living he'd apologize to Dr. Hornbook in an apostrophe to Prescott. Prescott's rock must be that mortal mineral' with which Cymbeline's queen intended to take his life. The effect of the one is precisely that of the other. But Shakespeare in looking into the future saw 'our rock' as plainly as he did Prescott's. In 'Cymbeline' Belarius says, 'I pr'ythee to our rock.' Then in 'Julius Cæsar' occurs this allusion, I will rest on this rock.' Had he said under instead of on we would have readily understood the allusion to have been intended for Prescott's rock. He again alludes in 'Two Gentlemen of Verona' to 'rocks of pure gold,' and in his 'Comedy of Errors' to a 'mighty rock,' and in 'Henry VI' to how the 'rocks cheer,' which sounds so like a prophetic puff for plaintiff's rock, that he holds himself ready to forward a case of his Rye and Rock' to any lineal or collateral descendant of the Shakespeare family able to identify himself as such. Then the Bible contains over 30 sentences which the word 'rock' points, subject in each instance to the laws of context, and brimful of reproaches for Prescott, as I read and interpret them, but I will close this phase of this rock discussion with the 31st verse from the 32d chapter of Deuteronomy, which is in these words: For their rock is not our rock, even our enemies themselves being judges.'

History and romance abound in incidents and events which have christened thousands of rocks and made their names immortal, from the Tarpeian rock in Rome down to the Logan rock between Penzance and Lands End, and the Menamber at Sithney, which Oliver Cromwell had destroyed because of the superstitious adoration with which the people regarded it. The Scilly Isles are full of christened rocks. Webster gives over fifty compound words, one-half of each of which is rock. How can mortal wisdom undertake to say to which one our rock belongs, if to either, and the truth is it does belong to neither. Why? Because there is no such word in our language as rock-candy.

"The court below did not only hold that the word 'rock' had such a peculiar association and identification with rock-candy, that it must be understood wherever employed alone to refer to candy and nothing else, enough so to amount to a description of candy, so full, so unmistakably that it could not be reasonably conjectured that it could have the slightest reference to any single one of all the tediously numerous objects, animals, minerals, flowers, oils, fish, birds, cities, towns, post-offices, railroad stations, mountains, and rivers with which it is associated, but must mean rockcandy only when such a word as 'rock-candy' is not known to our nomenclature. Before it gets legitimately into our vocabulary at all, it is judicially introduced to the world clothed with a mysterious power, and pregnant of a peculiar significance, with which its derivation has nothing to do. They introduce into an already densely populated world of words an utter stranger, and then slashing it in twain declare half means legally all the whole can literally. Nor do they stop there, but go on to say that to this new comer belongs a breadth of significance never claimed for fifty of its predecessors to which half of its title belongs. That having given rock away to candy, it's now got to mean rock no more, but candy forever more. Having given this hard word a sweet throne, they intend it shall enjoy a long reign in its new dominions. That