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construction of law when he receives the money to the case is put on the ground of want of privity, yet it pay it to me; but when a man receives money as due comes better within the principle laid down in Mason to himself, it will be hard to make this an agreement v. Waite, 17 Mass. 560, aud adopted in Bank v. Plimpby constructiou whether he will or not; that the decla ton, 17 Pick. 159, and Thacher v. Pray, 113 Mass. 291, ration ought to be according to the fact; that it was that it would be mischievous to require those who laid that the defendant received the fees ad usum et receive money in the way of business or the payment commodum querentis, whereas in truth he receives of debts to look into the authority of those from whom them to his own use. But the court adjudged that they received it. Iu Turnpike Co. v. Sunith, 12 Vt. 212, the action would lie, but said, had it been au original | defendant had never promised and had no money in case, it should have adjudged otherwise, but that there his hands belonging to the plaintiff, and the plaintiff were many such judgments, some passing sub silentio, was regarded as baving foregone a legal right under a and others on debate, especially in the Exchequer. The misapprehension of the law. So in Williams v. Everett, same objection was made in Arris v. Stukely, 2 Mod. 14 East, 582, defendant had neither promised plaintiff, 260, which was indebilutus assumpsit for the fees of the nor had any money in his hands belonging to him. In office of comptroller of the customs at the port of | Coles v. Wright, 4 Taunt. 198, the defendant was a Exeter, which the defendant had received to his own mere bearer of the money, and had paid it over to the use, against the will of the plaintiff, on pretense of | trader lying in prison before he became a bankrupt, title to the office; but the court gave judgment for the and it was sought to charge him by relation; but he plaintiff. Indeed, assumpsit for money had and re had judgment. In Stewart v. Fry, 7 Taunt. 339, there ceived is now the usual mode for trying the title to an was nothing to restrain the right of the acceptors who office to which fees are annexed. Mayor v. Gorey, | made the remittance to recall the money as they did, Freem. 433; Powell v. Milburn, 3 Wils. 355; Boyter v. nor of the defendants to make any new appropriation Dodsworth, 6 Term R. 681; Green v. Hewett, Peake, of it that they thought fit, nor any promise to hold it 182; Hall v. Mayor, 5 Q. B. 5:26. In Hitchin v. Camp- for plaintiff's use. In Howell v. Batt, 5 Barn. & Adol. bell, 2 W. Bl. 830, the court said that this action had | 504, the defendant was servant to another, and no sum been much extended as a very useful and general of money had been expressly given to him by his remedy; that while the action was in its infancy the master for the plaintiff; nor did it appear but that his courts endeavored to find technical arguments to sup- master might have countermanded payment to tbe port it, as by a notion of privity, etc., but that that was plaintiff, and the defendant had agreed to hold no too narrow ground to support the action to the extent money to the use of the plaintiff, but held it to the to which it had been admitted. In O'Conley v. use of his master. Yates v. Bell, 3 Barn. & Ald. 643, Natchez, 1 Smedes & M. 31; S. C., 40 Am. Dec. 87, it is is simply to the effect that when a party to whom a held that assumpsit for money had and received lies bill is remitted repudiates the trust with which it is where intruders or trespassers collect under an adverse | clothed, it gives no right of action to the party to claim that which belongs to the plaintiff. It is said by whose account the bill is directed to be applied. In Ileath, J., in Lightly v. Clouston, 1 Tauut. 11:2, that Adams v. Nickerson, 1 Allen, 427, the defendant did Holt, C. J., held it clear law that if one goes and re not know that the debtor abroad had instructed his ceives my rents from my tenants, under pretense of agent here to have him par plaintiff's claim out of title, I may bring my action against him for money had money in his hands, and he had repaid the balance of and received. The same notion is favored by many | it to the agent, as he agreed to do when he received it. authorities. Bac. Abr., “Assumpsit,” A.; Arris v. Vt. Sup. Ct., Sept. 9, 1887. State 5. Village of St. Stukely, 2 Mod. 260; Mayor v. Gorey, Freem. 433; Johnsbury. Opinion by Rowell, J. Hasser v. Wallis, 1 Salk. 28. But some of the authori CONSTITUTIONAL LAW – INTERSTATE COMMERCE ties are the other way. Cunningham v. Lawrents, re- LICENSING LOCOMOTIVE ENGINEERS.-- An act which ported in Gwyllim’s notes to Bac. Abr., “ Assumpit,'' | requires all railroad engineers engaged in running a A.; Marshall v. Hopkins, 15 East, 309; Codman v. train of cars or engine used for the transportation of Jenkins, 14 Mass. 96; Redfield, J., in Turnpike Co. v. persons, passengers, or freight on the main line of any Smith, 12 Vt. 212. In Bank y. National Bank, 19 Fed. | railroad in this State, to be examined and licensed by Rep. 301, assumpsit for money had and received was a board appointed by the governor, and makes it a maintained upon the ground that the law implies a misdemeanor, punishable by fine and hard labor, for promise whenever the defendant has in his hands any engineer to act in that capacity without such money of the plaintiff's that he is not entitled to retain examination and license, is not a regulation of interas against the plaintiff; and Judge Wallace says that it State commerce, but an internal police regulation, has long been well settled that want of privity is no which the State had undoubted power to enact as a objection to maintaining the action. In Pierce v. law. It incidentally affects inter-State commerce, but Crafts, 12 Johns. 90, it is said not to be true does not amount to a regulation, any more than laws that the action for money had and received can licensing, by State authority, pilots of vessels engaged be grounded only on privity of contract, but that if a in such commerce, which bave always been held free man receives my money without authority, I may re from constitutional objection. The laws of the several cover it of him in this form of action, although there States bare undertaken, not only to license pilots in is no privity of contract between us. See 1 Cranch euch cases, but have gone so far as to regulate the App. 440, where the cases are collated. In the case be- whole subject of pilotage, and pilots; fixing their fore us, the justices could impart to the village no qualifications, employmeut and pay, including the right to retain the money, and the village took it, tender of services, and on refusal to employ, authorizknowing all the facts, and chargeable with knowledge of ing the recovery of half pay. These laws have been the law that is belonged to the State, and its payment sustained, not on the ground that Congress had recogto the village in the circumstances constituted no re nized them as valid, for it is clear that no such recognicognition by the State of the claim of the village, not tion could confer any constitutional power on the eren pro hac vice. These and other features distin- States which they did not already possess, but upon guish this case from many of those relied upon by the the ground that they were necessary police regulations, defendant. Thus in Rogers v. Kelly, 2 Camp. 123, the having in view the public safety, or if regulations of banker's clerk, by mistake, paid plaintiff's money to commerce in a certain seuse, they were local regulathe defendant for a valuable consideration, the de tions, of such a nature as to be permissible until Confeudant not knowing that it was plaintiff's money: gress itself undertook to exercise the same power by anj although, in giving judgment for the defendant, legislating on the subject. Cooley v. Board of War
dens of Philadelphia, 12 How. 323; Ex parte Niel, 13 tutional grounds are, in our opinion, not maintainable. Wall. 236. There are many police regulations of this It does not confer judicial power on the board appoinnature, incidentally affecting commerce, which have ted by the governor, por does it deprive the citizen of been sustained by the courts. It is well settled that his liberty or property without due process of law. the State may pass laws requiring railroads running The vesting by legislative authority of the power to from one State to another to fence their tracks, to license various occupations and professions requiring ring a bell, or blow a whistle on approaching a crossing skill in their exercise, or the observance of the law of or highway, to erect gates or bridges, and keep flagmen hygiene, or the like, have never been construed to be at dangerous places on highways, to stop for reason obnoxious to these objections. It has been uniformly able times at certain stations, to fix and post printed held that laws providing by accustomed modes for the time-tables, rates of fare and freights, and other things | licensing of physicians, lawyers, pilots, butchers, of like character having reasonably in view the preven bakers, liquor dealers, and in fact all trades, profestion of fraud and extortion, or other injury, and the sions and callings, interfere with no natural rights of preservation of the safety of the public. Railroad Co. the citizen secured by our Constitution. Mayor, eto., v. Fuller, 17 Wall. 560; Mobile, etc., R. Co. v. State, 51 Mobile v. Yuille, 3 Ala. 137; Dorsey's case, 7 Port. Miss. 137; Com, v. Eastern R. Co., 103 Mass. 254; S. (Ala.) 295; Cooper v. Schultz, 32 How. Pr. 107, and C., 4 Am. Rep. 555; People v. Boston & A. R. Co., 70 authorities cited; Coe v. Schultz, 47 Barb. 64; Metro. N. Y. 569; Railroad Com’rs v. Portland, etc., R. Co., politan Board of Health v. Heister, 37 N. Y. 661; 63 Me. 269; S. C., 18 Am. Rep. 208; Davidson v. States, Reynolds v. Schultz, 34 How. Pr. 147; People v. Medi4 Tex. App. 545; S. C., 30 Am. Rep. 166; Tied. Lim. cal Society of N. Y., 3 Wend. 426; Metropolitan Board Police Powers, S 194; Cooley Const. Lim. (5th ed.) of Excise v. Barrie, 34 N. Y. 627; Barbier v. Connolly, *579 et seq. The exaction of a license in such a case 113 U. S. 27; Soon Hing v. Crowley, id. 703; Slaughterdoes not impose a direct burden upon inter-State com House cases, 10 Wall. 273. Ala. Sup. Ct., July 20, merce, or interfere directly with its freedom. It only 1887. McDonald v. State. Opinion by Somerville, J. "acts indirectly upon the business through the local instruments to be employed, after coming within the
GUARANTY-COLLECTIBILITY OF NOTE.- A guaranty State.” It does not belong to that class of subjects
upon the back of a note was in these words: “I which are national in their character, and admit of
guaranty the within note good till paid." Held, that but one system of regulation for the whole country,
this was a conditional guaranty, the word “good” having in view the prevention of unjust discrimina importing only that the note was capable of being tion, and the preservation of the freedom of transit collected. There has been no case before this court and transportation from one State to another. Wabash,
where the words of the guaranty were precisely like etc., Ry. Co. v. Illinois, 118 U. S. 557, and cases there
this. That of Allen v. Rundle, 50 Conu. 20, comes cited. The case of Robbins V. Shelby Co. Taxing
nearest to it. But there the words were “good and District, 120 U. S. 489, does not conflict with the fore
collectible," and they were construed as constituting going views. The license there exacted of foreign
a conditional guaranty. We do not think the addition drummers was held to be a tax on inter-State com
of the word "collectible" controlled that case, for the meroe. It was not a police regulation. Eveu in that
words “good” and “collectible" are of similar imcase the stronger reasoning, in our judgment is, with
port when used in such connection. The plaintiff in the able opinion of Chief Justice Waite, concurred in
support of his position cited Bank v. Hopson, 53 Conn. by Justices Field and Gray. In Port of Mobile v. 454, where the guaranty was in this form: “For value Leloup, 76 Ala. 401, we sustained as constitutional an
received, we guaranty the within note until paid," ordinance of the port of Mobile, imposing a license tax
which was held to be a guarauty of payment. In view upon a telegraph company doing business in that city,
of this case the plaintiff's counsel, with a suggestive between this and other States, which was inter-State
| play upon the words, asked: “How can the insertion commerce. In this we followed as authority the case
of the word 'good' in a guaranty make it bad?" It of Osborne v. Mobile, 16 Wall. 479, in which the United
cannot make it bad, but it may determine the class to States Supreme Court sustained a similar license on an which the guaranty belongs. Had the plaintiff used express company under like circumstances. The same ordinary diligence in collecting the note of the maker, question had been before decided in Southern Exp.
or shown that it was not collectible, he could have reCo. y. Mayor, etc., Mobile, 49 Ala. 404. In City of New
covered, provided, of course, there was a good conOrleans v. Eclipse Tow-Boat Co., 33 La. Ann. 647; S.
sideration. The simple question is, what does the C., 39 Am. Rep. 279, in like manner, a city ordinance
word “good” in such a connection import? It seems exacting a license fee from the owner of tow-boats
to us unnatural to give it all the force that attaches to running on the Mississippi river, to and from the Gulf the word “payment,” for the latter refers to the act of Mexico, was held not unconstitutional as a regula
of the debtor alone, irrespective of any steps taken by tion of commerce, upon authority of the same decision.
the creditor, while the former word refers to and In American Union Tel. Co. v. W. U. Tel. Co., 67 Ala. qualifies the note. The maker of a note may pay it 26, we held that the provisions of our Constitution when no one would have considered the note good, prohibiting foreign corporations from doing business and on the other hand, a note may be considered perin this State without having at least one known place fectly good which the maker would not pay till comof buspiess, and an authorized agent therein, was a pelled to do so. The accepted test of the goodness of legitimate exercise of the police power, and was not a a note is its capability of being collected independent regulation of commerce. The case of Yick Wo v. of any voluntary act of payment on the part of the Hopkins, 118 U. S. 356, does not, in our opinion, lend maker, and the use of ordinary diligence on the part any favor to the contention of appellant. The munici of the holder is implied where diligence would avail. pal ordinance, there pronounced invalid, vested in the Iu Bank v. Hopson, supra, there was no word to limit board of supervisors the arbitrary power to license the extent of the guaranty, except the words“ till publio laundries at their own mere will and pleasure, paid.” The court therefore considered the guaranty without regard to discretion in the legal sense of the as belonging to the stronger class of absolute guaranterm, and without regard to the fitness or competency ties requiring actual payment, and the case was likeof the persons licensed, or the propriety of the locality ned to that of Breed v. Hillhouse, 7 Conn). 523, where selected for carrying on such business. Properly con-| the word "payment" was used. Our position receives strued, this case favors the views above expressed by strong confirmation from distinguished text-writers, us. The other objections to the law, based on consti- and from decisions in other jurisdictious. Iu Edw.
Bills, side paga 235, it is said: "'I warrant this note | the property was to be used. The plainer purpose and good,' means that it is collectible, that the maker is effect of the term "saw-mill building" was to describe responsible; it is not an eugagement that the note will and distinguish the property insured, not to declare be promptly paid at maturity; and it is therefore in- | the purposes for which only the mill should be used. cumbent on the holder of such note and guaranty, in | Everett v. Insurance Co.. 2 Minn. 7
Everett v. Insurance Co.. 21 Minn. 76. This term of order to charge the guarantor, to prove by legal eyi description occurs only in that part of the policy emdence that the maker was not responsible.” In 2 ployed to designate the property insured, and the Danl. Neg. Iust., § 1769, it is said: “The words 'I amount of insurance upon it. It is used in the applicaguaranty the collection of the within note, and I tion only in the same connection. It would seem too promise that this note is good and collectible after due from the polioy itself, that it was contemplated that course of law,' and 'I warrant this note good,' are the mill would be used for other purposes than the phrases of similar import, binding the guarantor only sawing of logs into lumber, and that lumber was to be upon condition that the guarantee acts with due dili then subjected to some other process of manufacture; gence in prosecuting the collection of the note." In for a part of the insurance was specifically on "lumber Hammond v. Chamberlin, 26 Vt. 406, “I hereby guar in process." The printed clause in the by-laws was anty this note good until January 1, 1850," was held therefore inapplicable to limit the use of the property collateral, and not an absolute undertaking, and that to the purposes of a saw-mill, for the reason that the the contract meant that the makers of the note should uses to which it was or was to be appropriated were be in that condition that payment could be en forced not “mentioned." There was therefore no error in against them if legal diligence was used for that pur this particular of which the defendant can complain. pose. Iu Curtis v. Smallman, 14 Wend. 231, a guaranty
Minn. Sup. Ct., July 27, 1887. Frost's Detroit Lumber “I warrant this note good,"indorsed by the payee on & Wooden-ware Works V. Millers & Manuførs' Mut. the uote, was held to be a guaranty that the note is Ins. Co. Opinion by Dickinson, J. collectible, and not that it will be paid on demand. In Cooke v. Nathan, 16 Barb. 342, it was held that a con
TRADE-MARK-LABEL-WHAT WILL BE PROTECTED.
- A device, bearing the names of the proprietors of a tract, “this note is good," meant that it could be col
patent medicine, the name of the medicine, the prolected by due course of law. The case of Koch v. Melborn, 25 Penn. St. 89, has been cited by the text
prietors' place of business, the names of various diswriters as opposed to the construction given above,
eases, etc., and consisting chiefly of a letter of the and so far as we have noticed it is the only opposing
alphabet, nine times repeated, arranged in three verticase. It seems to us however that it is distinguishable
cal columns, separated by lines or bars, so as to form from the cases cited. It was an action on a parol war
three groups of three B.'s each, this letter being the
initial of the three words forming the name of the ranty of a note, where the words used were that the note was “just as good as if he would give him (the
medicine, generic words belonging to the science, the
whole so printed on the wrapper, that when it is placed plaintiff) the money; that he would insure it as good
around the package of the goods, each of the three sides as gold and silver.” It will be seen that the meaning
will present to view one of these combinations of B's, did not depend on the word “good” alone; there is
is a label which the court will protect against infringspecially made an extra standard of the goodness intended, that is, it was just as good as if he would give
ment by other parties. The name of complainants'
medicine is Burdock Blood Bitters, and this gives rise him the money, which is actual payment, and when it
to the suggestion that the three B's on the label are was added “as good as gold and silver,” it referred to
used descriptively of the medicine, being the initials of money in hand. Such language might well be held
the three words constituting this name. Moreover as equivalent to a warranty of payment, as it was by that
all the words are generic terms belonging to the lancourt. Conn. Sup. Ct. Err., Sept. 9, 1887. Cowles v.
guage, the usual distinction between the appropriation Peck. Opinion by Loomis, J.
of these in their literal sense, and words arbitrary or INSURANCE- USE OF PREMISES - DESCRIPTION OF specific, is also suggested. A further suggestion is PROPERTY.- A contract of insurance made for a period that B is merely a letter of the common alphabet, and of years, upon a mill building and machinery, while being such, it is the property of the world, and inthe process of construction was known to be still in capable of appropriation to the exclusive use of anycomplete and going on, is applicable to the property body. These considerations would perhaps all be when complete as contemplated by the parties. A. pertinent were it not for the distinction between a description of the property as a “saw-mill building” trade-mark in its technical character, and a quasi had not the effect to restrict the use to the purpose of trade-mark, such as a label or wrapper. It is not quite a saw-mill. The coutract is to be construed in the certain that even as a technical trade-mark, nine B's, light of the circumstances under which it was made. distributed into groups of three each, arranged in a The insurance to run five years was effected while the given order, and placed in colored frames or settings, building was known to be in the process of construc would not be sufficiently fanciful and arbitrary to be tion and equipment with machinery. The plaintiff legitimate. There is no possible device or design had another building near this which was called the which does not consist in its elements of something “Factory Building." The policy insured the plaintiff which is common to the whole world, when it comes as follows: $2,083.33 on their brick compositioned to be represented to the eye. Combination and arroofed saw-mill building; * * * $1,666.60 on their rangement of some such elements underlie all individmachinery of all kinds, both fixed, movable, their set uality and all difference. If nine letters, collocated so tings, parts, and appliances, circular, edging, and but as to form a new word, will become a symbol, it may ting saws, shafters, gearing, belting, pulleys, hangers, be difficult to say why the same letter, or one of them tools, fixtures, mill-wright work, boilers and engines, nine times repeated, may not be so arranged and comsteam, gas, and water pipes, while contained in said bined as to form, with certain accessory lines inclos. mill building; $1,041.27 ou lumber contained in said ing them, a symbolio tableau. Such a device, it might mill-yard, aud on dock attached to said mill premises; be, would serve ncü only as a commercial emblem, but $280.80 on lumber in process contained in said mill as the distinctive standard of a nation. Indeed it may building. In the light of the circumstances to which be doubtful if the flag of our own country would be we have referred, which were known to the plaintiff, more easy of recognition among other national epsigns, and to the agent at least of the defendant, it is difficuit than would be this label among most other labels of to read the policy as specifying the purposes for which proprietary medicines. But whether the design would suffice or not for a technical trade-mark, there can be and imperceptibly changes its course, the boundary no reasonable doubt that it is sufficient for a label; line is the center of the new channel.” And numerfor taken in connection with the proprietors' names, ous cases are cited in support of the position. The the name of their place of business, and the name of final claim of the defendants, which is substantially their medicine, all of which appear upon it, it is an involved in the claim last considered, is that as the appropriate indication of the origin aud ownership of part of the plaintiff's land which was last left by the their goods; and if others, for goods of the same class, receding stream was an upland corner made by the have imitated the main features of it so closely as that converging lines, the plaintiff was entitled to no more the imitation is likely to mislead the average public, than the restoration of this corner, after it bad been and betray purchasers into ordering goods covered by ! washed away, leaving all beyond it to accrue to the the simulated label, thinking them to be those put on | Benton lot, from which it was originally taken. So the market by the complainants, this would amount to far as this claim is founded upon the fact that this unfair competition in trade, and upon being ascer corner was originally upland, and not riparian, we tained with due certainty, the use of the imitation have already considered and disposed of it. It is only ought to be enjoined. We are however satisfied that as the corner has becoine submerged, and afterward in this case, the injunction, if to be granted at all, restored, on the other side of the river, that the claim ought to await the result of a trial upon the merits. presents any matter for further consideration. The Ga. Sup. Ct., March 5, 1887. Foster v. Blood Balm defendants' idea, as we understand it, seems to be that Co. Opinion by Bleckley, C. J.
the right of a riparian owner is like the right of an WATER AND WATER-COURSES–RIPARIAN RIGHTS —
owner of land upon a highway. The latter owns to the SUBMERSION OF LAND-RECESSION OF STEAM-ACCRE
iddle of the high wav, upon the theory that the highTION AND RELICTION.- Plaintiff and defendants were
way was originally taken out of the adjoining land, originally adjoining upland owners, but by a change
and on this ground it reverts to the original owners if in the bed of a river, the adjoining portions of their
the highway is discontinued. The claim of the delands became submerged, after which the river gradu
fendants seems to be that the right of a riparian owner ally receded from plaintiff's land, and encroached on
extends under the water on his upland lines in the the land of defendant until it passed the original
same manner, and that those lines are decisive of his boundary. Held, that by the submersion, the original
rights in case of a recession of the river. But the two lines ceased to exist, and plaintiff became a riparian
cases have nothing in common. They rest upon owner, with all the accompanying rights of accretion
entirely different theories. The riparian owner takes and reliction. They say in the first place, that the law |
the land under the stream because the stream is a of accretion applies ovly to the case of riparian land. natural boundary, and not because the land was once and that as the plaintiff's lot did not originally bound
his. Whenever a portion of a riparian lot is washed upon the river, but was conveyed to him by distinct | away by the river, the riparian owner becomes entitled lines and boundaries (at least upon the sides affected to the land under the water so far as the center of the by the present question), it cannot become by any
stream, without any reference to the original limit of changes of the river riparian land. We cannot accede
his land or to his upland lines. He takes whatever to this claim. If a particular tract was entirely cut off
front upon the river its changes of bed give him, and from a river by an intervening tract, and that inter
by lines that run from the termini of his upland lines vening tract should be gradually washed away, inntil
at right angles to the center line of the stream. All the remoter tract was reached by the river, the latter
the authorities agree in this. Thus in Gould Waters, tract would become riparian as much as if it had been
$ 162, it is said that “every proprietor is entitled to originally such. This follows necessarily from the
frontage of the same width on the new shore as on ordinary application of the principle. All original
the old shore, and at low-water mark as at high-water lines submerged by the river have ceased to exist; the
mark, without regard to the side lines of the upland. river is itself a natural boundary, and every changing
In general, the lines of division are to be made to the condition of the river in relation to adjoining lands is
channel in the most direct course, from the lateral treated as a natural relation, and is not affected in
boundaries of the several tracts of upland to which any manner by the relations of the river and the land
the flats are appended. * * * So also in the case of at any former period. If after washing away the in- unnavigable streams, which are the property of the tervening lot, it should encroach upon the remoter
riparian proprietor usque ad filum aquæ, the side lines lot, and should then begin to change its movement in
are extended to the center of the stream, from the the other direction, gradually restoring what it had
termini on the bank, at right angles with the general taken from the intervening lot, the whole, by the law
course of the river." Numerous authorities are cited of accretion, would belong to the remoter but now ap
in support of these positions. It necessarily follows proximate lot. Having become riparian, it has all
from this reasoning that the land of the plaintiff took riparian rights. This veneral principle is recognized | by accretion all that lay between its river front on the by all the text-writers and by numerous decisions of
west side of the river and the receding bed of the river, the English and American courts. The river boundary
and within lines drawn from the termini of its side is treated in all cases as a natural boundary, and the
lines at right angles to the channel of the river; and rights of the parties as changing with the chance of within these lines falls the land in dispute. Conn. the bed. The defendants claim, in the next place, that Sup. Ct. Err., Jan., 1887. Welles V. Bailey. Opinion though a riparian owner may take by accretion to the l by Loomis, J. middle of a stream, or in the case of a navigable river to high-water mark, yet that being the limit of his
THE CASE OF THE ANARCHISTS. original title, and in the case of a non-navigable river the line of the adjoining owner, he cannot take such NOW nearly a year later, after reading carefully the accretion beyond that line. This claim is utterly with N decision of the Supreme Court of the State in the out support. The dividing line between the owners case of the anarchists, we regret that the men hare of the opposite sides of a non-navigable river is the been refused a new trial. Protesting against the irmiddle of the river, but that middle line is merely an | rational cruelty preached by the anarchists when they imaginary one, and changes with every change in the advocated private vengeance for alleged public wrongs bed of the stream. Thus in Gould Waters, $ 159, it is and their sanguinary threats of revolution, and looksaid that: “Ifan unnavigable stream, in which the ing at the case by the light of the trial alone, we do title of a riparian owner oxtends ad filum aquæ, slowly | not believe that all the accused were fairly proven
guilty of murder or of conspiracy to murder. Guilty Shall the prosecution take advantage of its own misthey may be, one and all, but doubts in our mind are | take, if not its own wrong? Whether designed or not so strong as to the guilt of two of the condemned men the effect of such a number of defendants was to tbrow that we regret another trial was not granted them. confusion into the jury box, and errors into the rulTrue, the verdict has been affirmed by the Supreme ings and instructions of the court below. Court of the State, but the decisions of Supreme By trying all the men together the peril of each one Courts are not infallible, and have in many instances of them was multiplied, for each had to defend himbeen contrary to justice and right.
self against his own words and actions and those of A careful perusal of the decision in question will, I the other seven. This was not fair, and we doubt we believe, show that it is open to serious criticism, whether it is good law in capital cases. What is Mr. not only for the manner in which certain points are Justice Mulvey's opinion on this point? He approved presented, but also for the omission of others which the judgment, but condemns errors in the record, and ought to have been presented. We can mention here omits to specify the errors to which he refers. These but a few instances. The court, after passing judg- evidently are not the minor errors confessed in the ment upon a number of objections raised by the de- decision itself, because Mr. Justice Mulvey intimates fense, which they consider “most important," speaks that his original intention was to write a separate of “some other points of minor importance which are opinion. We agree with him that this is what he not noticed.” “As to these,” it remarks, “it is safe | "should have done." to say that we have considered them, and do not re- The Supreme Court confesses that erroneous ingard them as well taken." When a man condemned structions were given to the jury by the court below, to die alleges certain errors iu his trial, and asks the but contends that correct instructions on the same court of last resort to pass upon them, a refusal to do | points were also given, and that it was the duty of the so is a wrong as plainly visible to layman as to lawyer. | jury to consider all the iustructions together. In the It is a solemn thing to sentence a fellow man to death language of the court, “It is the duty of the jury to and at the same time to tell him that points of his ap- consider all the instructions together, and when the peal have been considered, and that they are not well court can see that au instruction in the series, although taken. The proof that they have been considered not stating the law correctly, is qualified by others, so should appear in reasons for rejecting them, and it is that the jury were not likely to be misled, the error therefore the duty of the court to show wherein they will be obviated." are not well taken.
This claim cannot fairly be allowed to one side and The judges, in justice to the condemned men, should denied to the other. The defendants have as good a have criticised, so it seems to us, not only such points right to claim that the bad instructions qualified the as they themselves considered “most important," but good ones as the prosecution has that the good ones also every point which the men whose lives were at | qualified the bad. Who shall decide which of them
ded as of any importance whatever. The | influenced the jury? How many jurors are compedecision was not the reversal of a verdict; it was the tent to analyze a legal mixture composed of good and affirming of the sentence of death against seven men. bad instructions given by the court ? The defendants had an equal right with the judge to It cannot be denied that the district attorney, in say what errors were “important." Considering that his zeal to conviot, broke through the lines of profesthe court was weaving a long rope for the hanging of | sivnal etiquette whicb the humane spirit of the law geven men-weaving it out of a confused tangle com has thrown around his office. It is laid down in the posed of threads of evidence, some of which, accord- | books that the prosecuting attorney, like the judge, ing to the decision itself, were proper, and some of shall staud absolutely impartial betweeu the prisoner them not, the statement of the court that any further and the State. He must not revile the prisoner nor comment “would swell the opinion, already of inordi insult him. He must not make fact-statements in his nate length, into still more tiresome proportions," is argument, nor offer to the jury his own opinion on the in our opinion po sufficient excuse. There are many i question of guilt or inuocence, because, says Mr. cases involving only dollars in which longer opinions Bishop in his treatise on Criminal Law, if he is a pophave been written without exhausting either the court ular man in whom the jury have great confidence, his or the readers interested in the cases. A legal friend | mere opinion may have greater weight than the sworn calls our attention to the Mordaunt case, a mere suit testimony of other men. All these rules were violated for divorce, in which the opinion is five times as long in this case, against the protest of the prisoner's counas that is iu regard to the anarchists. In the claimant sel, and yet the Supreme Court decides that the “imcase, a trial for perjury, the opinion is ten times as proprieties” were not such as to warrant a reversal long. Dividing the opinion by seven, the number of of the judgment. General Butler said a few days ago: men doomed, the allowance for each is not large, and “I thoroughly believe, as the Supreme Court of Masthere seems to be no good reason for refusing to dis sachusetts once expressed it, that a man has a right cuss specifically any of the alleged errors.
to quibble for his life;'" but a man certainly has no One of the members of the court, after the decision | right to quibble for the death of other men. 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 “tbat 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 na 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 mey were tried "all in a row?” severing in their challenges. It was therefore neces