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defendant, an actor, had brandished a pistol and threatened to give the deceased a “matinee." In Allen v. State, p. 293, the reporter says: “An eloquent and erudite argument was filed for the appellant, by some one whose modesty deterred him from appending his name thereto." That argument prevailed. For sober consideration we recommend Walker v. State, p. 245, a murder case, where the examining magistrate had compelled the prisoner to make his footprints in an ash heap, in order that they might be compared with tracks found at the scene of the crime. This was held regular, citing State v. Graham, 74 N. C. 646; S. C., 21 Am. Rep. 493, and distinguishing Stokes v. State, 5 Baxt. 619; S. C., 30 Am. Rep. 72. (But see State v. Sanders,

68 Mo. 202; S. C., 30 Am. Rep. 782, where the jury, at the suggestion of the prisoner's counsel, made an experiment out of court with worn-out boots like the prisoner's, and the conviction was set aside.) In Wright v. State, p. 574, the principal State's witness claimed to have acquired his knowledge of the offense in the character of a detective and feigned accomplice. The question of his real guilt was left to the jury.

XII RHODE ISLAND REPORTS.

This volume, published by Houghton, Osgood & Co. of Boston, contains decisions down to March, 1880. In the old fable, the rabbit took pride to herself as against the lioness, for producing so many young at a birth, whereas the lioness brought forth but one. Unum sed leonem, responded the lioness. So the Rhode Island court, although not prolific, never puts forth a volume that is not full of interest. Her court is one of the ablest, and her reporter, Mr. Arnold Green, is one of the very best. Of the contents of the present volume we have already called particular attention to a considerable portion, and now will simply note the following important decisions inclusive of those to which we have alluded:

Williams v. Winsor,

p. 9.A mortgage of property subsequently to be acquired is valid in equity. Saint Joseph's Church v. Assessors of Taxes, p. 19. -The residence of a priest or clergyman is not exempt from taxation as a "building for religious worship," because it contains one room set apart as a religious chapel. Wakefield v. Newell, p. 75. - A municipal corporation is not liable. for allowing ordinary surface water to escape from a highway on to adjacent land, nor for the results of such ordinary changes of grade as must be presumed to have been contemplated and paid for on laying out the highway. Elliott v. Gower, p. 79. - A married woman may charge her separate equitable estate expressly in writing, or orally when the contract is for the benefit of herself or the estate. King Philip Mills v. Slater, p. 82. - The plaintiff having failed in the first deliveries of goods which he contracted to manufacture and deliver, in successive lots, cannot compel the acceptance of goods subsequently manufactured and offered. Kelley v. Silver Spring Co., p. 112. - An adult employee, injured by imperfect and unfenced machinery, cannot maintain an action against his employer where he himself was familiar with the machinery and had long worked with it without complaint. Butcher v. Providence Gas Co., p. 149. Plants in plaintiff's greenhouse were injured by the escape of gas from the defendant's mains, laid in a city street, through a city sewer, owing to the negligence of the city in building the sewer; held, that defendant was liable. Bennett v. Lovell, p. 166. The plaintiff sustained injury through the fright of his horse, on a highway, by tubing and machinery left by defendant on the highway; held, that defendant was liable. Goodell v. Fairbrother, p. 233. One who hires a piano, with an agreement that when and not until the rent amounts to a specified sum the piano shall become his property, has no attachable interest before the payment of the full sum. Hunt v.

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Jones, p. 265.- An action lies in Rhode Island for breach of contract of sale of goods, the contract being made there and valid there, but the goods to be delivered in New York, where the contract was invalid by the statute of frauds. Carpenter v. McLaughlin, p. 270. — One who as surety and before utterance indorses a note payable to another is liable to the payee as a joint maker, although the payee knew him to be a surety. Shurtleff v. Millard, p. 272. - A minor may recover money voluntarily paid by him on a contract which he has repudiated, and from which he derived no benefit. Ordway v. Remington, p. 319. — Under a lease for years from a specified day, rent conditioned to be payable quarterly on certain days is not due until after midnight of such days. Austin v. Coggeshall, p. 329. — A city is not liable for the expense of a public entertainment given to straugers upon the resolution of the common council. Providence Steam Engine Co. v. Providence, etc., Steamship Co., p. 348. — A riparian owner platted his land into streets, lots, and squares, one of such streets being below high-water mark; the street was subsequently filled out, but was subsequently closed by the owner of all the adjoining lots; held, that he could be compelled to reopen it by the owner of some of the other lots. Lee v. Union Railroad Co., p. 383.- A was injured by a horse driven by B, on a highway, and frightened by the overturn of a sleigh by a heap of snow and ice wrongfully made on the highway by C; held, that A could maintain an action against C therefor. Baldwin v. Barney, p. 392. -A, carefully driving on Sunday on a highway in Massachusetts, was injured by the reckless driving of B; held, that A could maintain an action therefor against B. Glavin v. Rhode Island Hospital, p. 411. — One who sustains injury at a public hospital from unskillful surgical treatment by an unpaid attending surgeon, may maintain an action against the hospital therefor, although the hospital is a public charity, and the plaintiff paid nothing but a small amount for board and attendance. Cassidy v. Angell, 'p. 447.- Where one was found fatally injured in an excavation in a highway, and there was no proof of the circumstances of his death, the jury may consider his habits as to temperance and caution, and his acquaintance with the locality, upon the question whether he had used reasonable care. McKim v. McKim, p. 462. In case of separation of husband and wife, equally fit, by character and circumstances, to have the custody of children, the custody of a delicate female child of four years of age will be awarded to the mother for the time being. Peck v. Peck, p. 485. — Betrothal, followed by cohabitation, but without a present agreement to become husband and wife, does not constitute a valid marriage. Hatch v. Tucker, p. 501.-The consignee and receiver of a cargo is liable for the freight, although the master, owing to a dispute with the person who loaded the vessel about the price of trimming the cargo, sailed without signing the bill of lading; and he cannot deduct that price from the freight. Fallon v. O'Brien, p 518.- One whose horse escaped from an inclosure, and strayed on a highway, without negligence on the part of the owner in suffering the escape or in recapturing the horse, and injured a person on the highway, is not liable for such injury. Carpenter v. Carpenter, p. 544. A testator having directed his executors to invest $5,000 in their names as executors, for the benefit of his grandson, the executors in their books charged themselves as trustees and credited the grandson with that sum, invested it in government and State bonds, and deposited them in a bank vault, in a tin box, in an envelope labelled, "investment of $5,000 for" the grandson, with the date of purchase; the vault was robbed and the bonds were lost; the executors, giving indemnity, procured new bonds in their place, through an agent, whom they had reason to suppose honest, but who appropriated the bonds, so

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that some of the amount was lost; held, (1) that the trust was duly constituted; (2) that the executors were not liable for the robbery or the misappropriation. Horton v. Champlin, p. 550.- An attorney's lien on a judgment does not authorize him to bring a suit | thereon in his client's name without his authority. The volume is an elegant specimen of law book publishing.

XXIII KANSAS REPORTS.

This volume contains cases decided at July term, 1879, and all the cases decided at January term, 1880. The volume is well executed in every respect, Mr. A. M. F. Randolph being the reporter, and George W. Martin, Topeka, the publisher. The cases are of considerable interest. We have marked the following: Thomas v. Wordman, p. 217.- An action of nuisance by the diversion and damming of water cannot be maintained, where the complainant has delayed proceeding for two years after acquiring knowledge of the injury, and the dam meanwhile has been twice rebuilt. State v. Thompson, p. 338.—On a criminal trial the existence of a corporation may be proved by general reputation. Central Branch, etc., Railroad Co. v. Henigh, p. 347. A boy, four or five years old, unaccompanied, climbed upon a railroad car, standing alone on a switch-track on a slightly descending grade, with brakes fastened, unfastened the brakes, and thus started the car, and then jumping or falling off, was run over by the car and killed; held that there was no liability on the part of the railway company. Horder v. Horder, p. 391.- A voluntary deed from husband to wife is valid as against the husband's adult heir, not dependent on him for support. Morris v. Kennedy, p. 408.-A debtor gave his creditor the check of a third party, payable to bearer and not indorsed, which the creditor kept twenty-six days before presenting it; on presentation it was not paid, owing to the suspension of the bank; the drawer had no funds in the bank at the time of drawing the check, but the president testified that it would have been paid if presented before suspension; the check was not received by the creditor in payment; and being dishonored was returned to the debtor and by him to the drawer, who promised to pay the amount to the debtor; held, that the debt was not discharged. Graffenstein v. Epstein, p. 443.— A

demand of the plaintiff; subsequently but before maturity the maker paid it to the payee, not knowing of the transfer, and took a receipt; heid, that the note was not thereby discharged. Smith v. Gore, p. 488.The proceeds of the sale of a homestead are not exempt from execution, unless the vendor has at the time of sale the intention of investing them in another homestead. Comstock v. Adams, p. 513.- The annulling of a decree of divorce replaces the parties in the state in which they were before the divorce, without regard to a subsequent marriage and the birth of children; an agreement between the parties to the contrary is of no effect; and where the divorce was granted by the court of another State, it will be presumed that the annulling of the decree by the same court is regular and valid. Lapere v. Luckey, p. 534.- The doctrine of ancient lights does not prevail in Kansas. Hogan v. Manners, p. 551.- A homestead may be acquired in a building erected on leased land, and although one or two rooms are used for business purposes. Central Branch, etc., Railroad Co. v. Twine, p. 585.-Although a railroad company is licensed to occupy a street or alley with its track, yet if in so doing it changes the grade, or otherwise obstructs access to lots by its track, or by leaving cars unnecessarily standing on the track, the lot-owner may maintain an action for damages, and the measure of damages where the obstruction is fluctuating, as by leaving cars on the track, is the injury prior to the commencement of the suit, but where the injury is permanent, as by the change of grade or the manner of laying the track, the lot owner may recover the consequent depreciation in the value of his lot; and in such cases a recovery implies a conclusive consent to such occupation. Piazzek v. White, p. 621.— Where several own cereal grain, of the same kind and value, mingled together by their consent or by reason of circumstances reasonably to be foreseen, each may maintain replevin for his just proportion. State v. Lautz, p. 728.- Where an officer in charge of a jury, in a case of burglary, by their request but without authority of the court, furnishes them with an atlas, which they examine in their deliberations, their verdict of conviction is void.

NOTES.

HE following bills, introduced at the late session of

false and fraudulent representation of the market our Legislature, failed to become laws by reason

price of wool, made by the vendor to induce a sale and relied on by the vendee, will not avoid the contract, where the vendor had no special facilities for ascertaining the market price and there were no special circumstances making it his duty to communicate his knowledge. State ex rel. Mitchell v. Stevens, p. 456.-A mandamus will not issue to compel a canvassing board to canvass election returns and declare the result, where the returns to the board showed that there were 2,947 votes cast, and there were in fact only 800 legal voters in the county. Kelly v. Caplice, p. 474.-Plaintiff and her husband, in consideration of the satisfaction of a demand of $600 against the husband, and the payment to them of $275, absolutely assigned to A and B a policy in favor of the defendant on her husband's life; A paid the subsequent premiums until maturity, when the amount due was $1,477.73; the insurers refused to pay it without the defendant's receipt on the back of the policy; the defendant refused to sign her name without receiving $477.73 when the policy was collected; accordingly A executed a written agreement to pay her that sum on the payment of the policy; she signed her name, and A and B received the full amount; in an action against them on the agreement, held, that it was unconscionable, and not enforceable beyond an amount fairly due for her service and inconvenience in writing her name. Best v. Crall, p. 442. The payee of a note indorsed and delivered it, before maturity, to a bank, as collateral security for a

of the withholding of executive approval: Amending act to revise the charter of the city of Buffalo; relative to water supply of Deer river, Lewis county; for the construction of a canal bridge at Tonawanda; amending act relative to the Society for the Protection of Destitute Roman Catholic Children; revision and consolidation of poor laws; relative to the admission of persons, not paupers, into asylums; providing for verification of pleadings in justices' court; relative to incorporation of Red House Driving Park Agricultural Society; for incorporation of National Guard Mutual Relief Association; for incorporation of the Governor's Guard; to incorporate the Rochester Electro-Medical Institute; to change the name of the Elmira Female College; amendatory of act conferring further powers upon boards of supervisors; amending act relating to the care and custody of the insane; fixing the amount to be paid on a policy of insurance; relative to taking fish from Wallkill river; for the improvement of certain rivers and to facilitate the running of logs down the same; incorporating the Knights of the Maccabees of the World; amending section 2, title 1 of chapter 13 of Revised Statutes defining land; for the relief of Theodore P. Ballou; relative to sale of property for unpaid taxes in Steuben county; amending Revised Statutes relative to officers chosen at certain elections; exempting certain counties from chapter 733 of the Laws of 1872; authorizing the county clerk of Rich

mond county to record certain papers; for the building of a canal bridge upon Genesee street in Utica; in relation to One Hundred and Eleventh street in the city of New York; for the relief of Bridget Gray; relative to the Public Exchange in the city of New York; amending act creating separate road district in the town of Middletown, Richmond county; in relation to companies insuring steam boilers; to incorporate Excelsior Hose Company in Warwick; for the protection of fish in Monroe county; amending the general law relative to fire insurance; repealing act relating to the pay of certain town officers in Sullivan county; for the relief of Mary A. Van de Water; to incorporate the Bachelor Club of the city of New York; for the relief of James E. McVeany; relative to certain claims in abating nuisances in Buffalo; establishing the compensation of the county judge of Rockland county; legalizing the official acts of Daniel P. Cornell as notary public; rebuilding Fulton Market in the city of New York; to incorporate the Grand Council of the Royal Arcanum: relative to the organization and regulation of certain business corporations; to legalize the acts of Franklin C. Whitney as a notary public; relating to Independence river; legalizing the acts of Samuel Williams, a justice of the peace; amending the game law; preventing the sale of adulterated vinegar; relative to telegraph companies; in relation to the harbor and port of New York; amending general law relating to public instruction; relative to apple barrels; for the enlargement of a canal bridge at Fultonville; relative to the estate of George Bright, deceased; to incorporate the order Germania; to make effectual judicial decrees against unknown owners; relative to criminals and commutation of their sentences; authorizing trustees of religious corporations to appoint constables; relative to the superintendent of the poor of Westchester county; for the better security of the bonds of public officers; for the relief of the sureties of trustees, committees and guardians; amending the game law; relative to the superintendent of the poor of Columbia county; relative to making good deficits in capital of banking institutions; repeal ing act relating to draining certain lowlands in Orange county; relating to the printing of the Code of Criminal Procedure; to encourage the improvement of steam propulsion on the Champlain canal; for the relief of Babette Stemmler; for the relief of George W. Morton; requiring banks and banking associations to redeem and retire their circulating notes; relating to the title to personal property; to exempt Sullivan county in reference to the appointment of poor-house keepers; relating to the election of certain school officers in certain school districts; relative to the incorporation of villages; of distraining cattle and other chattels; to transfer the duties of the bonding commissioners of Poughkeepsie; relating to rural cemetery associations; to incorporate the "Empire Yacht Club;" for the relief of Isaac Piser; to incorporate the Grand Lodge Knights of Honor; relating to the M. E. Church Home in the city of New York; for the election of a messenger for the common council of Brooklyn; relating to macadamizing the highways in the village of Piermont; relating to the protection of female employees in the cities of New York and Brooklyn; relating to arrears of rents and charges for Croton water in the city of New York; relating to marshals in the city of New York; to abolish the office of railroad commissioner in any town; relating to the laying out of public roads; in relation to the State Board of Audit, and to define its powers; amending an act to provide for the incorporation of bridge companies; to legalize certain proceedings of the common council of New York city; amending the charter of the city of Yonkers; the Code of Criminal Procedure; repealing certain acts and parts of acts relating to the city of New York.

Rule 7th of our Court of Appeals has been changed so as to read as follows: "Any person who has been admitted, and has practiced three years as an attorney and counsellor in the highest court of law in another State, may be admitted and licensed without examination. And the General Term of the Supreme Court may, in its discretion, so admit and license any person who has thus practiced in another country. But he must possess the other qualifications required by these rules, and must produce a letter of recommendation from one of the judges of the highest court of law of such other State, or furnish other satisfactory evidence of character and qualifications."

The July number of the Criminal Law Magazine contains the following leading articles: The plea of insanity as an answer to an indictment, by John Ordronaux, and Interposing the statute of limitations by demurrer, by Franklin Fisk Heard. Also a note upon State v. Redemier, as to burden of proof of insanity; five other important cases in full, digests, and other interesting matter. The Magazine is an editorial success. In Kansas Central Railway Co. v. Allen, 22 Kans. 285, an action brought for injuries sustained by a boy while disporting on a railway turntable, the court thus describe the restless small boy: "Everybody knows that by nature and by instinct boys love to ride, and love to move by other means than their own locomotion. They will cling to the hind ends of moving wagons, ride upon swings and swinging gates, slide upon cellar doors and the rails of stair-cases, pull sleds up hill in order to ride down upon them on the snow, and even pay to ride upon imitation horses and imitation chariots swung around in a circle by means of steam or horse power. This last is very much like riding around in a circle upon a turn-table. Now, everybody, knowing the nature and the instincts common to all boys, must act accordingly. No person has a right to leave, even on his own land, dangerous machinery calculated to attract and entice boys to it, there to be injured, unless he first takes proper steps to guard against all danger; and any person who thus does leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence."

The New Jersey Law Journal gives the following midsummer Law in Verse, reporting the case of Kuhn v. Jewett:

The shades of night were falling fast,
As o'er the Erie railroad passed
A locomotive, laden down
With crude petroleum near the town
Of Paterson.

A piercing shriek, a blinding flash,
And then an instantaneous crash-
Two trains collided-down the banks
The oil was emptied from the tanks
Immediately.

The oil igniting, sparkling, flowed
Down the embankment, across the road,
Into a bubbling brook that pours
Its waters on the fertile shores

of the Passaic.
The barn of the complainant stood
Beside this unheroic flood,
And thus the floating flames of fire
Consumed it and produced a dire
Calamity.

His honor, the Vice-Chancellor says
That if a devastating blaze
Is negligently started, still
The defendant is responsible
In damages,

If no obstructions intervene,
As a new agency, between
The cause and its effect as here;
This rule is singularly clear

And logical.

The Albany Law Journal.

ALBANY, JULY 31, 1880.

CURRENT TOPICS.

Wood in criminal relations with the prisoner's wife. The examining magistrate received Mrs. Briggs' testimony, against objection, in which, we believe, she denies any criminality. By chapter 182 of Laws of 1876, it was provided that "in all criminal trials, and examinations before trial, a husband or wife may be examined as a witness on behalf of the

N connection with our article on "what consti- other, but upon no such trial or examination shall

IN connection jority our artiors," our netention is

called to People ex rel. Furman v. Clute, 50 N. Y. 461, and it is said this "seems to show that the law in New York is at variance with the conclusions of the article." We cannot see that that case is in the slightest degree in point. This case turned on the point of votes cast for a disqualified candidate, and it was held that if a majority of the electors vote for a disqualified candidate, through ignorance of law or fact, the next highest candidate is not elected, but the election is a failure. It is true that the court say, that those voters who "are absent from the polls, in theory and practical result are assumed to assent to the action of those who go to the polls; and those who go to the polls and do not vote for any candidate for an office are bound by the result of the action of those who do; and those who go to the polls and vote for an office, if for any valid reason their votes are as if no votes, they also are bound by the result of the action of those whose votes are valid and of effect." But this does not reach the subject of our discussion, which is this: If at the same election A is running for one office and B for another, and A has a majority of the votes cast for his office, but not of the votes cast for both offices, is A elected?

a husband or wife be compelled to testify against the other." There is no doubt that previous to this statute the wife would have been wholly incompetent as a witness. In fact, this was so held in Wilke v. People, 53 N. Y. 525. Under the present statute she cannot be competent against the husband unless inferentially, by the omission to enact that she shall not testify against him if she desires so to do. On this point Mr. Moak argued as follows: "Before this section the wife was not a competent witness against, or for, her husband. It required an affirmative provision, making her competent on either side, to make her so. This section affirmatively declares she shall be for her husband, and then proceeds negatively to say she shall not be There is no compelled to testify against him. affirmative declaration that she may. A mere negative provision that she shall not be compelled to be, certainly is not an affirmative provision that she may be. When the act of 1876 was passed, no one would have claimed, that under any circumstances, she was competent against her husband. If not competent she could not be allowed to be sworn against him. Suppose the Legislature had simply passed an act in the words of the last part of the section, "upon no such trial or examination (criminal trials and examinations before trial) shall a husWe have received and read the arguments of band or wife be compelled to testify against the Messrs. Harris, Hill and Miller, in favor of the validother," would it have been any thing more than a ity of the Indiana constitutional amendments. They declaration of part of the law, as it then existed, are able arguments; but we do not agree to the that a husband or wife should not be compelled to statement that "the Supreme Court of the United testify against the other? It would have removed States has settled the question already," as that no existing incompetency. It would have given or decision was in the case of a special election. We conferred no competency." "It would be a novel have also read the dissenting opinions of Niblack proposition that the competency of a witness, as a witness against another party, should depend upon and Scott, JJ. They are able productions. We have also read many columns of abuse in the Indithe willingness of the witness to testify without the ana newspapers (of one political party) of the slightest power on the part of either party, of the majority of the court. These are not able produccourt or of the law, to interfere or to have a word tions. We can consent, on satisfactory evidence, to say on the subject. I have never heard, and I to believe that judges have gone wrong in a given venture the assertion your honor never has, of a case, but we cannot consent to believe, on no eviwife or husband being called against the other." We are inclined to agree with Mr. Moak, and to dence at all, that they have made knaves as well as fools of themselves for political ends. In this case, believe that it requires an affirmative statutory declaration to qualify a wife to testify against her if the majority of the court have erred, as we are husband, even if she is willing, just as much as to inclined to believe they have, they have the courts of Illinois, Minnesota and Missouri on their side, qualify her to testify in his favor. and Mr. Justice Bradley. We await the appearance of the majority opinion with curiosity.

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The question, "can an assignee for creditors set aside his assignor's fraudulent assignment?" (see ante, 60), was recently answered in the negative, in Pillsbury v. Kingon, 31 N. J. Eq. 619. An appeal has been taken to the ultimate court. This decision does not involve any statute like ours of 1858, but the court, citing Burrill on Assignments, remark

that our statute "expressly invested assignees with this power." The opinion shows that there has been a good deal of diversity on the general question.

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Lord Justice Bramwell has written a strong letter to the jury by the counsel for the accused, on the "The condemning the bill pending in Parliament propos- question of his insanity. The court said: ing to make masters liable to servants for injuries plea of insanity interposed in behalf of persons inby fellow-servants in the course of the same employ-dicted is supported by the testimony of persons who ment. We have several times expressed ourselves against this. See 17 Alb. L. J. 358; 19 id. 505. Lord Bramwell says: "I have shown that it is not a natural right that the master should be liable, nor any thing that exists in the nature of things. That it is reasonable a railway company should be liable to a passenger for the negligence of its servants, because it has so contracted; and that it should not be to one of its own servants, because it has not so contracted. We are to start afresh, then, and make a new rule. Why? Why if I have two servants, A. and B., and A. injures B. and B. injures A. by negligence, should I be liable to both when, if each had injured himself, I should not be to either? There can be but one reason for itviz.: that, on the whole, looking at the interest of the public, the master, and the servants, it would be a better state of things than exists at present. Is that so?" This he answers in the negative. As the servant may now contract that the master shall be liable, so under the new law he might contract that he should not be liable, and for say sixpence a day difference of wages, he would so contract. "The great employers of labor will understand the change in the law and guard against it. The mischief and wrong will be in the case of men, who, not knowing of the change, will go on paying the wages which include the compensation for risk, the premium of insurance, and yet find they have to pay compensation when the risk happens, and that they are insurers though they have not received the premium." His lordship concludes that change would do the workman no good except in this last class of cases. Admitting that it might make the master more careful in selecting servants, he denies that this is a sufficient consideration for the enormous increase of risk. He might add that the master is already liable for carelessness in selection, and there is therefore all the less need of making him an insurer of his servants' care toward one another. Finally, he says: "And even if the law were made obligatory in spite of bargains to the contrary, it would not profit the servant. Because it is certain there is a natural rate of wages, one fixed by what neither master nor man can control, and that if they are practically added to one way, they will be taken from in another. If a manufacturer's wages now are £10,000 in the year, and he is made to pay compensation to the amount of £1,000 a year, his wages will fall to £9,000. He cannot charge more for his produce because he has to pay more; and if he could, his sales would diminish, and injury be done to the workman in loss of work." For our own part we regard the proposed change as so impolitic, unjust, and unequal, as to verge on folly.

by study of books and men have entitled them-
selves to speak as experts in that science. By way
of vindication of their right to be heard as instruct-
ors of the jury, they usually preface their testimony
by a statement of the extent of their experience in
the treatment of persons afflicted with disease of
the mind and the time given to the reading of trea-
tises upon insanity written by men of wide experi-
ence and acknowledged ability in the treatment of
such diseases; their opinion is the result of observa-
tion of men and reading of books. And in this
jurisdiction for a long series of years counsel have
been permitted to read to the jury, as a part of their
argument upon this part of their case, extracts from
such treatises as by the testimony of experts have
been accepted by the profession as authority upon
that subject; such treatises as have helped to form
the opinion expressed by the expert. The practice
by repetition has hardened into a rule; a rule, upon
the continued existence of which counsel for the
accused in the case before us had a right to rely;
the abrogation of which by the ruling complained
of may have been a surprise. The question is not,
shall such reading be now for the first time per-
mitted; it is, shall it now for the first time be for-
We think that privileges
bidden without notice.
hitherto granted to persons in like circumstances
with the accused should not be denied to him, to
his possible prejudice." Three judges concurred
in this opinion, but two others dissented in a care-
ful opinion. The dissent is authorized by Common-
wealth v. Wilson, 1 Gray, 338; Asworth v. Kittridge,
12 Cush. 193; Commonwealth v. Sturtevant, 117 Mass.
122; S. C., 19 Am. Rep. 401; Collier v. Simpson,
5 C. & P. 73; Ordway v. Haynes, 50 N. H. 159;
People v. Anderson, 44 Cal. 65; Carter v. State, 2
Cart. 617; Gale v. Rector, 5 Bradw. 484; Harris v.
Panama R. Co., 3 Bosw. 7. In Luning v. State, 1
Chand. (Wis.) 178, and Wade v. De Witt, 20 Tex.
398, the admission of such evidence was held dis-
cretionary.

In Odd Fellows' Mutual Life Insurance Co. v. Rohkopp, Pennsylvania Supreme Court, March 17, 1880, 8 W. N. C. 489, a policy of life insurance contained a clause that the company should not be liable if the insured became so far intemperate as seriously or permanently to impair his health. In an action brought upon the policy, held, that evidence to show that deceased was an habitual drunkard prior to the date of the policy, and that he had created an appetite which had become fixed upon him, but which had not seriously injured his health at that date, to be followed by the testimony of experts to show that the amount he drank before that date together

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