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the case is put on the ground of want of privity, yet it comes better within the principle laid down in Mason v. Waite, 17 Mass. 560, and adopted in Bank v. Plimpton, 17 Pick. 159, and Thacher v. Pray, 118 Mass. 291, that it would be mischievous to require those who receive money in the way of business or the payment of debts to look into the authority of those from whom they received it. In Turnpike Co. v. Smith, 12 Vt. 212, defendant had never promised and had no money in his hands belonging to the plaintiff, and the plaintiff was regarded as having foregone a legal right under a misapprehension of the law. So in Williams v. Everett, 14 East, 582, defendant had neither promised plaintiff, nor had any money in his hands belonging to him. In Coles v. Wright, 4 Taunt. 198, the defendant was a mere bearer of the money, and had paid it over to the trader lying in prison before he became a bankrupt, and it was sought to charge him by relation; but he had judgment. In Stewart v. Fry, 7 Taunt. 339, there was nothing to restrain the right of the acceptors who made the remittance to recall the money as they did, nor of the defendants to make any new appropriation of it that they thought fit, nor any promise to hold it for plaintiff's use. In Howell v. Batt, 5 Barn. & Adol. 504, the defendant was servant to another, and no sum of money had been expressly given to him by his master for the plaintiff; nor did it appear but that his master might have countermanded payment to the plaintiff, and the defendant had agreed to hold no money to the use of the plaintiff, but held it to the use of his master. Yates v. Bell, 3 Barn. & Ald. 643, is simply to the effect that when a party to whom a bill is remitted repudiates the trust with which it is clothed, it gives no right of action to the party to whose account the bill is directed to be applied. In Adams v. Nickerson, 1 Allen, 427, the defendant did not know that the debtor abroad had instructed his agent here to have him pay plaintiff's claim out of money in his hands, and he had repaid the balance of it to the agent, as he agreed to do when he received it. Vt. Sup. Ct., Sept. 9, 1887. State v. Village of St. Johnsbury. Opinion by Rowell, J.

construction of law when he receives the money to pay it to me; but when a man receives money as due to himself, it will be hard to make this an agreement by construction whether he will or not; that the declaration ought to be according to the fact; that it was laid that the defendant received the fees ad usum et commodum querentis, whereas in truth he receives them to his own use. But the court adjudged that the action would lie, but said, had it been an original case, it should have adjudged otherwise, but that there were many such judgments, some passing sub silentio, and others on debate, especially in the Exchequer. The same objection was made in Arris v. Stukely, 2 Mod. 260, which was indebitatus assumpsit for the fees of the office of comptroller of the customs at the port of Exeter, which the defendant had received to his own use, against the will of the plaintiff, on pretense of title to the office; but the court gave judgment for the plaintiff. Indeed, assumpsit for money had and received is now the usual mode for trying the title to an office to which fees are annexed. Mayor v. Gorey, Freem. 433; Powell v. Milburn, 3 Wils. 355; Boyter v. Dodsworth, 6 Term R. 681; Green v. Hewett, Peake, 182; Hall v. Mayor, 5 Q. B. 526. In Hitchin v. Camp-| bell, 2 W. Bl. 830, the court said that this action had been much extended as a very useful and general remedy; that while the action was in its infancy the courts endeavored to find technical arguments to support it, as by a notion of privity, etc., but that that was too narrow ground to support the action to the extent to which it had been admitted. In O'Conley v. Natchez, 1 Smedes & M. 31; S. C., 40 Am. Dec. 87, it is held that assumpsit for money had and received lies where intruders or trespassers collect under an adverse claim that which belongs to the plaintiff. It is said by Heath, J., in Lightly v. Clouston, 1 Taunt. 112, that Holt, C. J., held it clear law that if one goes and receives my rents from my tenants, under pretense of title, I may bring my action against him for money had and received. The same notion is favored by many authorities. Bac. Abr., "Assumpsit," A.; Arris v. Stukely, 2 Mod. 260; Mayor v. Gorey, Freem. 433; Hasser v. Wallis, 1 Salk. 28. But some of the authorities are the other way. Cunningham v. Lawrents, reported in Gwyllim's notes to Bac. Abr., “ Assumpit,” A.; Marshall v. Hopkins, 15 East, 309; Codman v. Jenkins, 14 Mass. 96; Redfield, J., in Turnpike Co. v. Smith, 12 Vt. 212. In Bank v. National Bank, 19 Fed. Rep. 301, assumpsit for money had and received was maintained upon the ground that the law implies a promise whenever the defendant has in his hands money of the plaintiff's that he is not entitled to retain as against the plaintiff; and Judge Wallace says that it has long been well settled that want of privity is no objection to maintaining the action. In Pierce v. Crafts, 12 Johns. 90, it is said not to be true that the action for money had and received can be grounded only on privity of contract, but that if a man receives my money without authority, I may recover it of him in this form of action, although there is no privity of contract between us. See 1 Cranch App. 440, where the cases are collated. In the case before us, the justices could impart to the village no right to retain the money, and the village took it, knowing all the facts, and chargeable with knowledge of the law that it belonged to the State, and its payment to the village in the circumstances constituted no recognition by the State of the claim of the village, not even pro hac vice. These and other features distinguish this case from many of those relied upon by the defendant. Thus in Rogers v. Kelly, 2 Camp. 123, the banker's clerk, by mistake, paid plaintiff's money to the defendant for a valuable consideration, the defendant not knowing that it was plaintiff's money: and although, in giving judgment for the defendant, | legislating on the subject. Cooley v. Board of War

CONSTITUTIONAL LAW -INTERSTATE COMMERCELICENSING LOCOMOTIVE ENGINEERS. An act which requires all railroad engineers engaged in running a train of cars or engine used for the transportation of persons, passengers, or freight on the main line of any railroad in this State, to be examined and licensed by a board appointed by the governor, and makes it a misdemeanor, punishable by fine and hard labor, for any engineer to act in that capacity without such examination and license, is not a regulation of interState commerce, but an internal police regulation, which the State had undoubted power to enact as a law. It incidentally affects inter-State commerce, but does not amount to a regulation, any more than laws licensing, by State authority, pilots of vessels engaged in such commerce, which have always been held free from constitutional objection. The laws of the several States have undertaken, not only to license pilots in such cases, but have gone so far as to regulate the whole subject of pilotage, and pilots; fixing their qualifications, employment and pay, including the tender of services, and on refusal to employ, authorizing the recovery of half pay. These laws have been sustained, not on the ground that Congress had recognized them as valid, for it is clear that no such recognition could confer any constitutional power on the States which they did not already possess, but upon the ground that they were necessary police regulations, having in view the public safety, or if regulations of commerce in a certain sense, they were local regulations, of such a nature as to be permissible until Congress itself undertook to exercise the same power by

dens of Philadelphia, 12 How. 323; Ex parte Niel, 13 Wall. 236. There are many police regulations of this nature, incidentally affecting commerce, which have been sustained by the courts. It is well settled that the State may pass laws requiring railroads running from one State to another to fence their tracks, to ring a bell, or blow a whistle on approaching a crossing or highway, to erect gates or bridges, and keep flagmen at dangerous places on highways, to stop for reasonable times at certain stations, to fix and post printed time-tables, rates of fare and freights, and other things of like character having reasonably in view the prevention of fraud and extortion, or other injury, and the preservation of the safety of the public. Railroad Co. v. Fuller, 17 Wall. 560; Mobile, etc., R. Co. v. State, 51 Miss. 137; Com. v. Eastern R. Co., 103 Mass. 254; S. C., 4 Am. Rep. 555; People v. Boston & A. R. Co., 70 N. Y. 569; Railroad Com'rs v. Portland, etc., R. Co., 63 Me. 269; S. C., 18 Am. Rep. 208; Davidson v. States, 4 Tex. App. 545; S. C., 30 Am. Rep. 166; Tied. Lim. Police Powers, § 194; Cooley Coust. Lim. (5th ed.) *579 et seq. The exaction of a license in such a case does not impose a direct burden upon inter-State commerce, or interfere directly with its freedom. It only "acts indirectly upon the business through the local instruments to be employed, after coming within the State." It does not belong to that class of subjects which are national in their character, and admit of but one system of regulation for the whole country, having in view the prevention of unjust discrimination, and the preservation of the freedom of transit and transportation from one State to another. Wabash, etc., Ry. Co. v. Illinois, 118 U. S. 557, and cases there cited. The case of Robbins v. Shelby Co. TaxingDistrict, 120 U. S. 489, does not conflict with the foregoing views. The license there exacted of foreign drummers was held to be a tax on inter-State commerce. It was not a police regulation. Even in that case the stronger reasoning, in our judgment is, with the able opinion of Chief Justice Waite, concurred in by Justices Field and Gray. In Port of Mobile v. Leloup, 76 Ala. 401, we sustained as constitutional an ordinance of the port of Mobile, imposing a license tax upon a telegraph company doing business in that city, between this and other States, which was inter-State commerce. In this we followed as authority the case of Osborne v. Mobile, 16 Wall. 479, in which the United States Supreme Court sustained a similar license on an express company under like circumstances. The same question had been before decided in Southern Exp. Co. v. Mayor, etc., Mobile, 49 Ala. 404. In City of New Orleans v. Eclipse Tow-Boat Co., 33 La. Ann. 647; S. C., 39 Am. Rep. 279, in like manner, a city ordinance exacting a license fee from the owner of tow-boats running on the Mississippi river, to and from the Gulf of Mexico, was held not unconstitutional as a regulation of commerce, upon authority of the same decision. In American Union Tel. Co. v. W. U. Tel. Co., 67 Ala. 26, we held that the provisions of our Constitution prohibiting foreign corporations from doing business in this State without having at least one known place of busniess, and an authorized agent therein, was a legitimate exercise of the police power, and was not a regulation of commerce. The case of Yick Wo v. Hopkins, 118 U. S. 356, does not, in our opinion, lend any favor to the contention of appellant. The municipal ordinance, there pronounced invalid, vested in the board of supervisors the arbitrary power to license public laundries at their own mere will and pleasure, without regard to discretion in the legal sense of the term, and without regard to the fitness or competency of the persons licensed, or the propriety of the locality selected for carrying on such business. Properly construed, this case favors the views above expressed by

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tutional grounds are, in our opinion, not maintainable. It does not confer judicial power on the board appointed by the governor, nor does it deprive the citizen of his liberty or property without due process of law. The vesting by legislative authority of the power to license various occupations and professions requiring skill in their exercise, or the observance of the law of hygiene, or the like, have never been construed to be obnoxious to these objections. It has been uniformly held that laws providing by accustomed modes for the licensing of physicians, lawyers, pilots, butchers, bakers, liquor dealers, and in fact all trades, professions and callings, interfere with no natural rights of the citizen secured by our Constitution. Mayor, etc., Mobile v. Yuille, 3 Ala. 137; Dorsey's case, 7 Port. (Ala.) 295; Cooper v. Schultz, 32 How. Pr. 107, and authorities cited; Coe v. Schultz, 47 Barb. 64; Metropolitan Board of Health v. Heister, 37 N. Y. 661; Reynolds v. Schultz, 34 How. Pr. 147; People v. Medical Society of N. Y., 3 Wend. 426; Metropolitan Board of Excise v. Barrie, 34 N. Y. 627; Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, id. 703; SlaughterHouse cases, 10 Wall. 273. Ala. Sup. Ct., July 20, 1887. McDonald v. State. Opinion by Somerville, J.

GUARANTY-COLLECTIBILITY OF NOTE.- A guaranty upon the back of a note was in these words: "I guaranty the within note good till paid." Held, that this was a conditional guaranty, the word " 'good importing only that the note was capable of being collected. There has been no case before this court where the words of the guaranty were precisely like this. That of Allen v. Rundle, 50 Conn. 20, comes nearest to it. But there the words were "good and collectible," and they were construed as constituting a conditional guaranty. We do not think the addition of the word "collectible" controlled that case, for the words "good" and "collectible" are of similar import when used in such connection. The plaintiff in support of his position cited Bank v. Hopsou, 53 Conn. 454, where the guaranty was in this form: " For value received, we guaranty the within note until paid," which was held to be a guarauty of payment. In view of this case the plaintiff's counsel, with a suggestive play upon the words, asked: "How can the insertion of the word 'good' in a guaranty make it bad?" It cannot make it bad, but it may determine the class to which the guaranty belongs. Had the plaintiff used ordinary diligence in collecting the note of the maker, or shown that it was not collectible, he could have recovered, provided, of course, there was a good consideration. The simple question is, what does the word "good" in such a connection import? It seems to us unnatural to give it all the force that attaches to the word "payment," for the latter refers to the act of the debtor alone, irrespective of any steps taken by the creditor, while the former word refers to and

qualifies the note. The maker of a note may pay it when no one would have considered the note good, and on the other hand, a note may be considered perfectly good which the maker would not pay till compelled to do so. The accepted test of the goodness of a note is its capability of being collected independent of any voluntary act of payment on the part of the maker, and the use of ordinary diligence on the part of the holder is implied where diligence would avail. In Bank v. Hopson, supra, there was no word to limit the extent of the guaranty, except the words "till paid." The court therefore considered the guaranty as belonging to the stronger class of absolute guaranties requiring actual payment, and the case was likened to that of Breed v. Hillhouse, 7 Conn. 523, where the word "payment" was used. Our position receives strong confirmation from distinguished text-writers, and from decisions in other jurisdictions. In Edw.

Bills, side page 235, it is said: "I warrant this note good,' means that it is collectible, that the maker is responsible; it is not an engagement that the note will be promptly paid at maturity; and it is therefore incumbent on the holder of such note and guaranty, in order to charge the guarantor, to prove by legal eyidence that the maker was not responsible." In 2 Danl. Neg. Inst., § 1769, it is said: "The words I guaranty the collection of the within note, and I promise that this note is good and collectible after due course of law,' and 'I warrant this note good,' are phrases of similar import, binding the guarantor only upon condition that the guarantee acts with due diligence in prosecuting the collection of the note." In Hammond v. Chamberlin, 26 Vt. 406, "I hereby guaranty this note good until January 1, 1850," was held collateral, and not an absolute undertaking, and that the contract meant that the makers of the note should be in that condition that payment could be enforced against them if legal diligence was used for that purpose. In Curtis v. Smallman, 14 Wend. 231, a guaranty

I warrant this note good," indorsed by the payee on the note, was held to be a guaranty that the note is collectible, and not that it will be paid on demand. In Cooke v. Nathan, 16 Barb. 342, it was held that a contract, "this note is good," meant that it could be collected by due course of law. The case of Koch v. Melhorn, 25 Penn. St. 89, has been cited by the textwriters as opposed to the construction given above, and so far as we have noticed it is the only opposing

case.

It seems to us however that it is distinguishable from the cases cited. It was an action on a parol warranty of a note, where the words used were that the note was "just as good as if he would give him (the plaintiff) the money; that he would insure it as good as gold and silver." It will be seen that the meaning did not depend on the word "good" alone; there is specially made an extra standard of the goodness intended, that is, it was just as good as if he would give him the money, which is actual payment, and when it was added " as good as gold and silver," it referred to money in hand. Such language might well be held equivalent to a warranty of payment, as it was by that court. Conn. Sup. Ct. Err., Sept. 9, 1887. Cowles v. Peck. Opinion by Loomis, J.

INSURANCE-USE OF PREMISES -DESCRIPTION OF PROPERTY.- A contract of insurance made for a period of years, upon a mill building and machinery, while the process of construction was known to be still incomplete and going on, is applicable to the property when complete as contemplated by the parties. A description of the property as a "saw-mill building" had not the effect to restrict the use to the purpose of a saw-mill. The contract is to be construed in the light of the circumstances under which it was made. The insurance to run five years was effected while the building was known to be in the process of construction and equipment with machinery. The plaintiff had another building near this which was called the "Factory Building." The policy insured the plaintiff as follows: $2,083.33 on their brick compositioned roofed saw-mill building; ** * $1,666.60 on their

*

machinery of all kinds, both fixed, movable, their settings, parts, and appliances, circular, edging, and butting saws, shafters, gearing, belting, pulleys, hangers, tools, fixtures, mill-wright work, boilers and engines, steam, gas, and water pipes, while contained in said mill building; $1,041.27 on lumber contained in said mill-yard, aud on dock attached to said mill premises; $280.80 on lumber in process contained in said mill building. In the light of the circumstances to which we have referred, which were known to the plaintiff, and to the agent at least of the defendant, it is difficult to read the policy as specifying the purposes for which

the property was to be used. The plainer purpose and effect of the term "saw-mill building was to describe and distinguish the property insured, not to declare the purposes for which only the mill should be used. Everett v. Insurance Co.. 21 Minn. 76. This term of description occurs only in that part of the policy employed to designate the property insured, and the amount of insurance upon it. It is used in the application only in the same connection. It would seem too from the policy itself, that it was contemplated that the mill would be used for other purposes than the sawing of logs into lumber, and that lumber was to be then subjected to some other process of manufacture; for a part of the insurance was specifically on "lumber in process." The printed clause in the by-laws was therefore inapplicable to limit the use of the property to the purposes of a saw-mill, for the reason that the uses to which it was or was to be appropriated were not "mentioned." There was therefore no error in this particular of which the defendant can complain. Minn. Sup. Ct., July 27, 1887. Frost's Detroit Lumber & Wooden-ware Works v. Millers & Manuf'rs' Mut. Ins. Co. Opinion by Dickinson, J.

TRADE-MARK-LABEL-WHAT WILL BE PROTECTED. - A device, bearing the names of the proprietors of a patent medicine, the name of the medicine, the proprietors' place of business, the names of various diseases, etc., and consisting chiefly of a letter of the alphabet, nine times repeated, arranged in three vertical columns, separated by lines or bars, so as to form three groups of three B.'s each, this letter being the initial of the three words forming the name of the medicine, generic words belonging to the science, the whole so printed on the wrapper, that when it is placed around the package of the goods, each of the three sides will present to view one of these combinations of B's, is a label which the court will protect against infringment by other parties. The name of complainants' medicine is Burdock Blood Bitters, and this gives rise to the suggestion that the three B's on the label are used descriptively of the medicine, being the initials of the three words constituting this name. Moreover as all the words are generic terms belonging to the language, the usual distinction between the appropriation of these in their literal sense, and words arbitrary or specific, is also suggested. A further suggestion is that B is merely a letter of the common alphabet, and being such, it is the property of the world, and incapable of appropriation to the exclusive use of anybody. These considerations would perhaps all be pertinent were it not for the distinction between a trade-mark in its technical character, and a quasi trade-mark, such as a label or wrapper. It is not quite certain that even as a technical trade-mark, nine B's, distributed into groups of three each, arranged in a given order, and placed in colored frames or settings, would not be sufficiently fanciful and arbitrary to be legitimate. There is no possible device or design which does not consist in its elements of something which is common to the whole world, when it comes to be represented to the eye. Combination and arrangement of some such elements underlie all individuality and all difference. If nine letters, collocated so as to form a new word, will become a symbol, it may be difficult to say why the same letter, or one of them nine times repeated, may not be so arranged and combined as to form, with certain accessory lines inclosing them, a symbolic tableau. Such a device, it might be, would serve not only as a commercial emblem, but as the distinctive standard of a nation. Indeed it may be doubtful if the flag of our own country would be more easy of recognition among other national ensigns, than would be this label among most other labels of proprietary medicines. But whether the design would

suffice or not for a technical trade-mark, there can be no reasonable doubt that it is sufficient for a label; for taken in connection with the proprietors' names, the name of their place of business, and the name of their medicine, all of which appear upon it, it is an appropriate indication of the origin and ownership of their goods; and if others, for goods of the same class, have imitated the main features of it so closely as that the imitation is likely to mislead the average public, and betray purchasers into ordering goods covered by the simulated label, thinking them to be those put on the market by the complainants, this would amount to unfair competition in trade, and upon being ascertained with due certainty, the use of the imitation ought to be enjoined. We are however satisfied that in this case, the injunction, if to be granted at all, ought to await the result of a trial upon the merits. Ga. Sup. Ct., March 5, 1887. Foster v. Blood Balm Co. Opinion by Bleckley, C. J.

WATER AND WATER-COURSES-RIPARIAN RIGHTS SUBMERSION OF LAND-RECESSION OF STEAM-ACCRETION AND RELICTION.- Plaintiff and defendants were

originally adjoining upland owners, but by a change in the bed of a river, the adjoining portions of their lands became submerged, after which the river gradually receded from plaintiff's land, and encroached on the land of defendant until it passed the original boundary. Held, that by the submersion, the original lines ceased to exist, and plaintiff became a riparian owner, with all the accompanying rights of accretion and reliction. They say in the first place, that the law of accretion applies only to the case of riparian land. and that as the plaintiff's lot did not originally bound upon the river, but was conveyed to him by distinct lines and boundaries (at least upon the sides affected by the present question), it cannot become by any changes of the river riparian land. We cannot accede to this claim. If a particular tract was entirely cut off from a river by an intervening tract, and that intervening tract should be gradually washed away, until the remoter tract was reached by the river, the latter tract would become riparian as much as if it had been originally such. This follows necessarily from the ordinary application of the principle. All original lines submerged by the river have ceased to exist; the river is itself a natural boundary, and every changing condition of the river in relation to adjoining lands is treated as a natural relation, and is not affected in any manner by the relations of the river and the land at any former period. If after washing away the intervening lot, it should encroach upon the remoter lot, and should then begin to change its movement in the other direction, gradually restoring what it had taken from the intervening lot, the whole, by the law of accretion, would belong to the remoter but now approximate lot. Having become riparian, it has all riparian rights. This general principle is recognized by all the text-writers and by numerous decisions of the English and American courts. The river boundary is treated in all cases as a natural boundary, and the rights of the parties as changing with the change of the bed. The defendants claim, in the next place, that though a riparian owner may take by accretion to the middle of a stream, or in the case of a navigable river to high-water mark, yet that being the limit of his original title, and in the case of a non-navigable river the line of the adjoining owner, he cannot take such accretion beyond that line. This claim is utterly without support. The dividing line between the owners of the opposite sides of a non-navigable river is the middle of the river, but that middle line is merely an imaginary one, and changes with every change in the bed of the stream. Thus in Gould Waters, § 159, it is said that: " If an unnavigable stream, in which the title of a riparian owner extends ad filum aquæ, slowly

and imperceptibly changes its course, the boundary line is the center of the new channel." And numerous cases are cited in support of the position. The final claim of the defendants, which is substantially involved in the claim last considered, is that as the part of the plaintiff's land which was last left by the receding stream was an upland corner made by the converging lines, the plaintiff was entitled to no more than the restoration of this corner, after it had been washed away, leaving all beyond it to accrue to the Benton lot, from which it was originally taken. So far as this claim is founded upon the fact that this corner was originally upland, and not riparian, we have already considered and disposed of it. It is only as the corner has become submerged, and afterward restored, on the other side of the river, that the claim presents any matter for further consideration. The defendants' idea, as we understand it, seems to be that the right of a riparian owner is like the right of an owner of land upon a highway. The latter owns to the middle of the highway, upon the theory that the highway was originally taken out of the adjoining land, and on this ground it reverts to the original owners if the highway is discontinued. The claim of the defendants seems to be that the right of a riparian owner extends under the water on his upland lines in the same manner, and that those lines are decisive of his rights in case of a recession of the river. But the two cases have nothing in common. They rest upon entirely different theories. The riparian owner takes the land under the stream because the stream is a natural boundary, and not because the land was once his. Whenever a portion of a riparian lot is washed away by the river, the riparian owner becomes entitled to the land under the water so far as the center of the stream, without any reference to the original limit of his land or to his upland lines. He takes whatever front upon the river its changes of bed give him, and by lines that run from the termini of his upland lines at right angles to the center line of the stream. All the authorities agree in this. Thus in Gould Waters, § 162, it is said that "every proprietor is entitled to frontage of the same width on the new shore as on the old shore, and at low-water mark as at high-water mark, without regard to the side lines of the upland. In general, the lines of division are to be made to the channel in the most direct course, from the lateral boundaries of the several tracts of upland to which the flats are appended. * ** So also in the case of unnavigable streams, which are the property of the riparian proprietor usque ad filum aquæ, the side lines are extended to the center of the stream, from the termini on the bank, at right angles with the general course of the river." Numerous authorities are cited in support of these positions. It necessarily follows from this reasoning that the land of the plaintiff took by accretion all that lay between its riverfront on the west side of the river and the receding bed of the river, and within lines drawn from the termini of its side lines at right angles to the channel of the river; and within these lines falls the land in dispute. Conn. Welles v. Bailey. Opinion Sup. Ct. Err., Jan., 1887. by Loomis, J.

THE CASE OF THE ANARCHISTS.

W nearly a year later, after reading carefully the case of the anarchists, we regret that the men have been refused a new trial. Protesting against the irrational cruelty preached by the anarchists when they advocated private vengeance for alleged public wrongs and their sanguinary threats of revolution, and looking at the case by the light of the trial alone, we do not believe that all the accused were fairly proven

guilty of murder or of conspiracy to murder. Guilty they may be, one and all, but doubts in our mind are so strong as to the guilt of two of the condemned men that we regret another trial was not granted them. True, the verdict has been affirmed by the Supreme Court of the State, but the decisions of Supreme Courts are not infallible, and have in many instances been contrary to justice and right.

Shall the prosecution take advantage of its own mistake, if not its own wrong? Whether designed or not the effect of such a number of defendants was to throw confusion into the jury box, and errors into the rulings and instructions of the court below.

By trying all the men together the peril of each one of them was multiplied, for each had to defend himself against his own words and actions and those of the other seven. This was not fair, and we doubt whether it is good law in capital cases. What is Mr. Justice Mulvey's opinion on this point? He approved the judgment, but condemns errors in the record, and omits to specify the errors to which he refers. These evidently are not the minor errors confessed in the decision itself, because Mr. Justice Mulvey intimates that his original intention was to write a separate opinion. We agree with him that this is what he

A careful perusal of the decision in question will, we believe, show that it is open to serious criticism, not only for the manner in which certain points are presented, but also for the omission of others which ought to have been presented. We can mention here but a few instances. The court, after passing judgment upon a number of objections raised by the defense, which they consider "most important." speaks of "some other points of minor importance which are not noticed." "As to these," it remarks, "it is safe" should have done." to say that we have considered them, and do not regard them as well taken." When a man condemned to die alleges certain errors in his trial, and asks the court of last resort to pass upon them, a refusal to do so is a wrong as plainly visible to layman as to lawyer. It is a solemn thing to sentence a fellow man to death and at the same time to tell him that points of his appeal have been considered, and that they are not well taken. The proof that they have been considered should appear in reasons for rejecting them, and it is therefore the duty of the court to show wherein they are not well taken.

The judges, in justice to the condemned men, should have criticised, so it seems to us, not only such points as they themselves considered "most important," but also every point which the men whose lives were at stake regarded as of any importance whatever. The decision was not the reversal of a verdict; it was the affirming of the sentence of death against seven men. The defendants had an equal right with the judge to say what errors were "important." Considering that the court was weaving a long rope for the hanging of seven men-weaving it out of a confused tangle composed of threads of evidence, some of which, according to the decision itself, were proper, and some of them not, the statement of the court that any further comment "would swell the opinion, already of inordinate length, into still more tiresome proportions," is in our opinion no sufficient excuse. There are many cases involving only dollars in which longer opinions have been written without exhausting either the court or the readers interested in the cases. A legal friend calls our attention to the Mordaunt case, a mere suit for divorce, in which the opinion is five times as long as that is in regard to the anarchists. In the claimant case, a trial for perjury, the opinion is ten times as long. Dividing the opinion by seven, the number of men doomed, the allowance for each is not large, and there seems to be no good reason for refusing to discuss specifically any of the alleged errors.

The Supreme Court confesses that erroneous instructions were given to the jury by the court below, but contends that correct instructions on the same points were also given, and that it was the duty of the jury to consider all the instructions together. In the language of the court, "It is the duty of the jury to consider all the instructions together, and when the court can see that an instruction in the series, although not stating the law correctly, is qualified by others, so that the jury were not likely to be misled, the error will be obviated."

This claim cannot fairly be allowed to one side and denied to the other. The defendants have as good a right to claim that the bad instructions qualified the good ones as the prosecution has that the good ones qualified the bad. Who shall decide which of them influenced the jury? How many jurors are competent to analyze a legal mixture composed of good and bad instructions given by the court?

It cannot be denied that the district attorney, in his zeal to convict, broke through the lines of professional etiquette which the humane spirit of the law has thrown around his office. It is laid down in the books that the prosecuting attorney, like the judge, shall stand absolutely impartial between the prisoner and the State. He must not revile the prisoner nor insult him. He must not make fact-statements in his argument, nor offer to the jury his own opinion on the question of guilt or innocence, because, says Mr. Bishop in his treatise on Criminal Law, if he is a popular man in whom the jury have great confidence, his mere opinion may have greater weight than the sworn testimony of other men. All these rules were violated in this case, against the protest of the prisoner's counsel, and yet the Supreme Court decides that the "improprieties" were not such as to warrant a reversal of the judgment. General Butler said a few days ago: "I thoroughly believe, as the Supreme Court of Massachusetts once expressed it, that a man has a right to quibble for his life;'" but a man certainly has no right to quibble for the death of other men.

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One of the members of the court, after the decision had been announced, said that he did "not wish to be Macaulay tells us of a great state trial that took understood as holding that the record is free from er- place in England nearly two hundred years ago. ror," but "that none of the errors complained of Preston, Ashton and Elliott had been indicted for are of such a character as to require a reversal of the high treason in connection with the Jacobite plot. judgment." "In view of the number of defendants They had actually invited a French army to land in on trial" (with other facts mentioned), "the wonder- England to help the scheme to overturn the government" to him was that the errors were not more nu- ment. The popular clamor against them was loud and merous and of a more serious character. Now one of threatening. Chief Justice Holt presided at the trial. the errors alleged is that the defendants were refused Somers, the solicitor-general, prosecuted, with Pollexthe right to be separately tried. Mr. Justice Mulvey, fen to help him. All these were bitter enemies of the confessing errors, permits them to prevail in the doom prisoners and their politics, and we quote the manner of seven men, on grounds, one of which and the first of their trial as we find it in Macaulay: "Early in mentioned is that errors were inevitable where so many January, Preston, Ashton and Elliott had been armen were tried together. Was it the fault of the de-raigned at the Old Bailey. They claimed the right of fendants that eight men were tried "all in a row?" severing in their challenges. It was therefore neces

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