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to work on said grade for him, that in addition to the usual and regular wages, he would pay Morrissey the amount due him from the subcontractor. In consideration of this promise, Morrissey began to work for Fitzgerald. It was claimed by Fitzgerald, that the agreement to pay the amount due from the subcontractor was within the statute of frauds, and void; but it was not found to be so, which was clearly correct. It was a new and independent contract, founded upon a consideration. The amount promised Morrissey for his labor included the amount due him from the contractor. It was a direct promise, founded upon a consideration to pay the debt. The case of Clopper v. Poland is based upon the same principle. Morrissey v. Kinsey. Opinion by Reese, J.

[Decided May 27, 1884.]

DEED-BOUNDARY-MONUMENTS-PAROL EVIDENCE -EJECTMENT-EQUITABLE DEFENSE - ESTOPPEL- (1) In an action between others than the original parties to a deed, the intention of the parties to the conveyance cannot be inquired into for the purpose of ascertaining the land sought to be conveyed, if the calls in the deed refer to fixed monuments or points. (2) Where there is a call in a deed which was in fact not intended by the parties, and is unambiguous, the intention of the parties cannot be made to take the place of the call; neither is parol proof competent to locate the land. In McAfferty v. Conover, 7 Ohio St. 104, the Supreme Court of Ohio uses the following language: "But where there is a call in a deed which was in fact not intended by the parties, and is found and is unambiguous, the intention of the parties cannot be made to take the place of the call; for if this could be done, titles and lands would be transferred by the intention of the parties, and not by deed. Effect will be given to the intention of the parties in respect to calls, only when the words of description they employ will admit of it, and are not inconsistent with the intention proved. Further than this, a court of law cannot go; beyond this is the region of equitable jurisdiction under the head of mistake." See also Piercy v. Crandall, 34 Cal. 343; Jackson v. Wendell, 5 Wend. 146; 1 Greeul. Ev. 391. We therefore conclude that the description given in the deed, as between these parties, must stand without explanation or change by parol proof; and that the recording of said deed was not of itself sufficient to give notice of the alleged rights of the plaintiff. Calway v. Malchow, 7 Neb. 287. (3) In an action of ejectment, where an equitable defense is pleaded, and under the allegations of such answer it is shown that the defendant bought the land in question in good faith for a valuable consideration, taking immediate possession thereof, and with the knowledge of the plaintiff made valuable and lasting improvements thereon, the plaintiff taking no steps to notify defendants of his claim, held, that he was estopped to set up his rights as against them.

In Kirk

v. Hamilton, 102 U. S. 68, it is said: "There is no principle better established in this court, nor one founded on more solid considerations of equity and public utility, than that which declares that if one man knowingly, though he does it passively, by looking on, suffer another to purchase and expend money ou land, under an erroneous opinion of title, without making known his own claim, he shall not afterward be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel." See also Fremont Ferry & Bridge Co. v. Dodge Co., 6 Neb. 25; Roy v. McPherson, 11 Neb. 200; Gillespie v. Sawyer. Opinion by Reese, J.

[Decided May 21, 1884.]

MARRIAGE-DEED FROM HUSBAND TO WIFE-VOID AT LAW-GRANTEE OF WIFE GETS NO TITLE.-At com

mon law a deed from a husband directly to his wife was void in law. 1 Co. Litt. 3a; Moyse v. Gyles, 2 Vern. 385; Beard v. Beard, 3 Atk. 72. The case of Shepherd v. Shepherd, 7 Johns. Ch. 57, is a leading American case, and while it holds that the conveyance in that case would be enforced as an evidence of an equity in favor of the wife, yet the chancellor, in the opinion, states the law the same as the English cases above cited. He says: "The deed from H. S. to the plaintiff was undoubtedly void in law, for the husband cannot make a grant or conveyance directly to his wife during coverture. In equity the courts have frequently refused to lend assistance to such a deed, or to any agreement between them. Thus in Stoit v. Ayloff, 1 Ch. Rep. 33, the husband promised to pay his wife 100 pounds; they separated, and she filed her bill for the sum. But the court would not relieve the plaintiff, because the debt was sixteen years old, and the promise made by a husband to a wife, which the court conceived to be utterly void at law. Again in Moyes v. Gyles, 2 Vern. 385, the husband made a grant or assignment of his interest in a church-lease to his wife. She brought a bill, after his death, to have the defective grant supplied; and the court held the grant to be void in law, and dismissed the bill, as the grant was voluntary and without consideration. So in Beard v. Beard, 3 Atk. 72, the husband, by deed-poll, gave to his wife all of his substance which he then had or might thereafter have. Lork Hardwicke considered the deed-poll to be so far effectual as to be a revocation of a will by which the testator had given all his estate to his brother, yet that it could not take effect as a grant or deed of gift to the wife, because the law will not permit a man to make a grant or conveyance to his wife in his life-time; neither will this court suffer the wife to have the whole of the husband's estate while he is living, for it is not in the nature of a provision, which is all the wife is entitled to." "It is to be observed," continues the chancellor, "that none of these cases were determined strictly and entirely upon the incapacity of the husband to convey to the wife according to the rule of law; and they do not preclude the assertion of a right in a court of equity, under certain circumstances, to assist such a conveyance. The court relied upon the staleness of the demand, in the first case, and upon the want of consideration, in the second, and upon the extravagance of the gift, in the third, as also constituting grounds for the decree; and it is pretty apparent that if the grant in each case had been no more than a suitable provision for the wife, the court would have been inclined to assist it. In Slanning v. Style, 3 P. Wms. 334, Lord Talbot said, that courts of equity have taken notice of, and allowed feme coverts to have, separate interest by their husband's agreement, especially where the rights of creditors did not interfere. And in More v. Ellis, Bunb. 205, articles of agreement executed between husband and wife were held binding without the intervention of trustees. So in Lucas v. Lucas, 1 Atk. 270, Lord Hardwicke admitted, that in chancery, gifts between husband and wife have often been supported, though at law the property is not allowed to pass; and he referred to the case of Mrs. H., and that of Lady Cowper. And in the very modern case of Lady Arundell v. Phipps, 10 Ves. 146, Lord Eldon held that a husband and wife, after marriage, could contract for a bona fide and valuable consideration, for a transfer of property from the husband to the wife, or to trustees for her.' And where, in contemplation of a separation and divorce, a husband executed and delivered a conveyance directly to his wife of an undivided half of certain wild land, and without entry upon the laud or applying to any court for relief or aid in the premises, seventeen years afterward, she having in the mean time obtained a divorce and remarried, execu

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ted a warranty deed of the land to the plaintiff, held, that the same carried no title to the plaintiff, and his petition for partition of said land dismissed. Johnson v. Vandervort. Opinion by Cobb, C. J. [Decided May 28, 1884.]

VERMONT SUPREME COURT ABSTRACT.*

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FRAUD-ORDER ON EMPLOYERS-RECEIVING MONEY AFTER GIVING. The defendant, a quarryman, gave an order on O. & Co., his employers, to pay his monthly wages to the plaintiff, for his, defendant's, monthly store bill, and to pay an old debt due the plaintiff. Notice was given to O. & Co. of the order. They refused to accept it, but did however pay the wages to the plaintiff for several months, then notified him that they would do so no longer, and paid directly to the defendant. O. & Co. alone were responsible for the discontinuance of the payments to the plaintiff. Held, that the receiving of his wages by the defendant, although he was then indebted to the plaintiff, did not amount to a tort; and that an action brought upon the theory that the defendant was liable as for a tort could not be maintained. The case is not like Troy v. Aikens, 46 Vt. 55, relied upon by the plaintiff. In that case the defendant misappropriated to his Own use a promissory note issued by the town, and the town was thereby compelled to pay the same. Here the defendant has not misapplied any money or other valuable thing of the plaintiff; and so the element of fraud is Jacking. The conclusion we reach does not debar the plaintiff from maintaining an action ex contractu to recover the balance his due. McGuire v. Kiveland. Opinion by Powers, J.

NEGLIGENCE

EVIDENCE IN REBUTTAL-NEW RULES. -(1) The plaintiff, while attending the annual fair of the Washington County Agricultural Society, received the injuries complained of by collision with a runaway team, which just prior to the accident was driven by one S. The defeudant was one of the marshals of the society; and while clearing the track preparatory to a trial of speed of horses, which was about to begin, he turned S., with his team, off the track. In the act of turning, S. was thrown out of his carriage, the horses broke loose, ran against the plaintiff's carriage, and so caused the injuries. The question being whether the defendant exercised the requisite prudence, or was negligent, the court below charged: "Was the defendant guilty of a wrong in the manner of requiring this S. to leave the track? If so, did he do an act which a person thus acting must have adjudged, would in the natural course of events be the natural consequence of that act, to set those horses loose, adrift, into that crowd, and cause them to run away? If not, then there is no recovery." Held error; that the question was not what the defendant, or a person thus acting, might reasonably expect, or adjudge, would result from the act; but that if the defendant negligently turned the team up the bank, off the track, and S. thereby lost control of his team, which broke loose and so caused the damage, without any superior, uncontrollable force, or without the negligence of a responsible agent having intervened, the defendant would be liable; and that this is so, although the negligent act was committed in the performance of a legal duty. (2) Testimony was admissible to prove all the considerations and circumstances which might legitimately influence the defendant's acts in the removal of S., and what occurred prior to the accident, between S. and the defendant, and S. and the policemen, as that he had been ordered off the *To appear in 56 Vermont Reports.

track once before. Stevens v. Dudley. Opinion by Ross, J.

PARTNERSHIP-ONE PARTNER GIVING FIRM PAPERBURDEN OF PROOF.-The law is well settled that one member of a non-trading partnership has no authority to bind his copartner by a note made by him in the firm name without express authority therefor from his copartner, or when the giving of such instrument is necessary to the carrying on of the partnership business, or is usual in similar partnerships; and the burden is upon the party suing on a note given by one member of such firm to prove such authority or usage. Smith v. Sloan, 37 Wis. 285; Kimbro v. Bullitt, 22 How. 256; Zuel v. Bowen, 78 Ill. 234; Greenslade v. Dower, 7 B. & C. 635; Ulery v. Giurich, 57 Ill. 531; Hunt v. Chapin, 6 Lans. 139. The testimony introduced on the trial of the cause in the District Court does not disclose any such authority, necessity, or usage; and there is nothing in the record which will sustain a conclusion that either existed. Levi v. Latham. Opinion by Reese, J. [Decided May 27, 1884.]

NEVADA SUPREME COURT ABSTRACT.

GARNISHMENT-CLAIM AGAINST ESTATE-NOT SUBJECT TO LEVY.-No order for distribution to creditors having been made, a claim against the estate, although allowed and approved, cannot be garnished in the hands of the executor, or be subject to levy or sale at the instance of a creditor of the party to whom such claim is due. These funds must travel only in the path pointed out by the laws relating to decedents' estates in their various branches, and cannot be directed out of that path without interfering with salutary regulations, and violating some of the most important provisions of the acts of assembly. See also Barnes v. Treat, 7 Mass. 271; Brooks v. Cook, 8 id. 247; Thorn v. Woodruff, 5 Ark. 55; Stout v. La Follette, 64 Ind. 365; J. I. Case T. M. Co. v. Miracle, 54 Wis. 295; S. C., 11 N. W. Rep. 580; Colby v. Coates, 6 Cush. 558; Thayer v. Tyler, 5 Allen, 94; Walch v. Gurley, 2 Hayw. (N. C.) 334; Young v. Young, 2 Hill (S. C.) 425; Curling v. Hyde, 10 Mo. 374; Winchell v. Allen, 1 Conn. 385; Lyons v. Houston, 2 Harr. (Del.) 349; Waite v. OsBailey, 3 Mass. 289; Marborne, 11 Me. 185; Wilder v. vin v. Hawley, 9 Mo. 382; Hill v. Lacrosse, etc., R. Co., 14 Wis. 291; Dawson v. Holcomb, 1 Ohio, 275. Norton v. Clark. Opinion by Belknap, J. [Decided Feb. 12, 1884.]

EASEMENT-OBSTRUCTING RIGHT OF WAY-FORCIBLY REMOVING. (1) An easement does not divest the owner of the soil of the possession thereof, nor does the right of way coufer any possession on parties using the easement as against such owner. Read v. Leeds, 19 Conn. 187; and see Wood v. Truckee Turnpike Co., 24 Cal. 487; San Francisco v. Calderwood, 31 id. 589. (2) Where the plaintiffs are in possession of a piece of land, over which the defendants have a right of way, and the plaintiffs inclose the same, the defendants, while they have a remedy in law for the obstruction, have no right to enter forcibly to remove it and to detain the possession with strong hand. People v. Leonard, 11 Johns. 509; Mitchell v. Davis, 23 Cal. 384; Porter v. Cass, 7 How. Pr. 445; People v. Van Nostrand, 9 Wend. 53; Voll v. Hollis, 60 Cal. 573; Allen v. Tobias, 77 Ill. 171; Krevet v. Meyer, 24 Mo. 110; Harris v. Turner, 46 id. 439; Bartlett v. Draper, 23 id. 408; 2 Bish. Crim. Law (7th ed.), § 490. (3) The exclusion of evidence which merely tended to prove the use of the easement by the defendants and their tenants, the allegation of which is not denied, is neither erroneous

nor prejudicial to the defendants. Lachman v. Barnett. Opinion by Leonard, J.

[Decided Feb. 26, 1884.]

CRIMINAL LAW.

INTOXICATING LIQUORS- IRREGULAR SALE.Where a druggist who has a permit from the probate judge of his county to sell intoxicating liquors for medical, scientific and mechanical purposes, is prosecuted upon information in the District Court for selling intoxicating liquors for other than medical, scientific or mechanical purposes, and no other offense is charged against him, he cannot be convicted for the offense of selling intoxicating liquors for medical, scientific and mechanical purposes in an irregular manner. Sup. Ct. Kans., Jan., 1884. State v. White. Opinion by Valentine, J. (31 Kans. 342.)

APPEAL-A FUGITIVE NOT ENTITLED TO BE HEARD. (1) Where the offense charged is a felony, and the defendant remains a fugitive from justice, he has no right to be heard upon any appeal in his behalf in this court. (2) Moreover the orders of the lower court forfeiting the bail money on the non-appearance of the defendant (though his counsel was present and wished to demur to the indictment), and refusing to hear a motion to discharge the forfeiture, the defendant still being at large, are not appealable, and can only be reviewed on an appeal from a final judgment. Sup. Ct. Utah, Feb., 1884. People v. Tremayne. Opinion by Emerson, J. (3 Pac Rep. 85.) [See 17 Am. Rep. 315; 3 T. & C. 734, 739; 115 Mass. 133; 10 Bush, 526; 15 La. Ann. 495; 20 Gratt. 716, 722.-ED.]

BASTARDY-EVIDENCE-NON-ACCESS-PRESUMPTION. -The law is well settled that the wife, on the question of legitimacy of her children, is incompetent to give evidence of the non-access of her husband during the time in which they must have been begotten. This rule is founded on the very highest grounds of public policy, decency, and morality. The presumption of the law is in such a case that the husband had access to the wife, and this presumption must be overcome by the clearest evidence that it was impossible for him, by reason of impotency or imbecility, or eutire absence from the place where the wife was during such time, to have had access to the wife, or to be the father of the child. Testimony of the wife even tending to show such fact, or of any fact from which such nonaccess could be inferred, or of any collateral fact connected with this main fact, is to be most scrupulously kept out of the case; and such non-access and illegitimacy must be clearly proved by other testimony. The King v. Inhabitants, etc., 5 Ad. & Ell. 180; Dennison v. Page, 29 Penn. St. 420; People v. Overseers of the Poor, 15 Barb. 286; Com. v. Shepard, 6 Bin. 283; State v. Pattaway, 3 Hawks (N. C.), 625; Cope v. Cope, 1 Moody & R. 269. Sup. Ct. Wis., May 15, 1884. State. Opinion by Orton, J. (19 N. W. Rep. 445.) [See 22 Eng. Rep. 286; 30 id. 562; 31 Minn. 319.ED.]

FINANCIAL LAW.

Mink v.

NOTARY-PROTEST OF EVIDENCE TO CONTRADICTNO PRESENTATION INDORSES DISCHARGE.--(1) The protest of a notary is only prima facie evidence of the facts contained in it, and evidence to contradict and overcome its recitals is admissible. (2) To bind the indorsers on a note, it must be presented to the maker

at maturity, and no previous statement of intention not to pay at maturity, or other arrangement between the maker and holder, can excuse the non-presentation, so far as the indorsers are concerned, whatever effect it may have as to the maker. This question has been settled by the Supreme Court of Massachusetts in Lee Bank v. Spencer, 6 Metc. 309. That was a suit against indorsers of a promissory note made payable at the bank. It was not presented to the bank for payment at maturity, because the promisor had formally called on the holders and informed them that it would be useless to present the note at the bank, as he could not pay it. But said Shaw, C. J., "however this might affect the rights of the promisor, we think it did not alter the conditional obligation of the indorsers, and make them responsible without any presentment whatever." So in Pierce v. Whitney, 29 Me. 188, it was held that the fact that the maker of a note had addressed a letter to the holder informing him that he would not be able to pay it at maturity, and requesting an extension, would be no excuse for nonpresentation of the note at its maturity to the maker. Sup. Ct., Cal., Jan., 1884. Appelgarth v. Aybott. Opiniou by McKee, J. (2 Pac. R. 43.)

CORRESPONDENCE.

MR. THROOP TO MR. STERNE.

Editor of the Albany Law Journal:

In the article by Simon Sterne, Esq., published in the last number of the ALBANY LAW JOURNAL, entitled, "On the Prevention of Defective and Slipshod Legislation," I find the following statement relating to the Code of Civil Procedure:

"At last the first seven chapters were passed. It was then discovered that the repealing clause threatened a general jail delivery, and that section had to be amended subsequently before the Code could be permitted to take effect."

Gentlemen who are criticising others for "defective and slipshod legislation" should be very careful not to make "defective and slipshod" statements of fact, as Mr. Sterne has done in this instance. The installment of the Code of Civil Procedure which passed in 1876 contained the first thirteen chapters. No attempt was ever made to pass the first seven chapters separately; nor were they ever separately reported to the Legislature; but when a draft of them was completed printed copies thereof were sent by the commissioners receiving such suggestions the commissioners revised, to members of the bar for their suggestions; and after amended and reprinted those chapters with the other six, and reported the thirteen chapters to the Legislature, nearly two years after the drafts of them had been thus sent out. Nor did the Code of Civil Procedure contain any "repealing clause" whatever, either in the installment enacted in 1876 or in the installment enacted in 1880. Nor did the General Repealing Act of 1877 (L. 1877, ch. 417)—if Mr. Sterne means that act by his expression "repealing clause "-contain any thing which "threatened," or was thought by any body (as far as I ever heard) to threaten, or could possibly be thought by any sensible person to threaten " a general jail delivery;" nor was it, nor were the thirteen chapters of the Code amended with the expectation or for the purpose of preventing any "jail delivery," general, special, particular or partial.

Respectfully yours,
MONTGOMERY H. THROOP.

ALPANY, September 22, 1884.

The Albany Law Journal.

ALBANY, OCTOBER 11, 1884.

CURRENT TOPICS.

HE anomalous condition of the law which does

I not recognize international copyright, but does

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can and English law. In the particular case of the 'Chatterbox' series the result is certainly something similar in effect to what would follow if a system of international copyright prevailed. Though any American may reprint the books, probably he would find no market for them except as the Chatterbox' series, and thus the series may incidentally be protected from reproduction in America, except by the assignee of the English publisher." And the Athenæum says: "If this judgment is good law it is only one more anomaly in a very anomalous state of affairs-that the American law should thus defend the reputations of our books while it will not reserve to us the profits on their sale."

Whatever doubts the judges of Canada have about the propriety of beating drums in the streets, the magistrates of Truro, England, have none about concertinas when complained of. The offending musicians were members of the Salvation Army, and it was in evidence that they had on previous occasions marched through the streets playing musical instruments, tambourines and triangles, and had been complained of. The proceeding was under a local ordinance, which appears in the following remarks of Stephen, J., in delivering the opinion of the Queen's Bench Division on affirming the conviction: "Now, if we look at this by-law, the part I am now considering, and which is all we have to deal with, is: Every person who shall sound or play upon any musical instrument, or sing or make any noise whatsoever, in any street or near any house within the said borough, after having been required by any householder resident in such street or house, or by any police constable, to desist from making such sounds or noises, either on account of the illness of any inmate of such house, or for any reasonable cause.' Now what is there unreasonable in that? I have not the words of the London Act before me, but it is exactly like a well

recognize the doctrine of trade-mark as to aliens, has recently been illustrated in a suit, of which we find the following account in the Solicitors' Journal : "The English publisher of a set of juvenile books called the Chatterbox' series has succeeded in a suit against a Boston firm who reproduced the series. The suit was in fact brought by the person in America to whom the English publisher had assigned the exclusive right to use the name of the Chatterbox series in America, but the question upon which the case turned was whether the English publisher could prevent the use of the name in America. It was quite clear, of course, that any body in America could reprint the matter of the series; the point was whether the Boston house did not represent their goods to be those of the English publisher. The judge held, on the evidence, that by calling their reprint the Chatterbox series,' they were holding out to the world that their work was his. The English publisher 'had the exclusive right to put his own work as his own upon the market of the world. Not the right to prevent the copying and putting the work upon the markets, but the right to be free from untrue representations that this other work was his when put upon the markets.' This principle is very familiar to English lawyers in cases with regard to tradenames; and in this country, as in America, there is nothing to prevent an alien friend from asserting his right. It has been urged in America that the decision in question gives the English inventor of the 'Chatterbox' series what amounts to a copy-known provision in some of the metropolitan acts, right in the form of the books, and that the case is an illustration of the injustice to which the absence of international copyright leads. 'The laws of the United States,' it is said, 'which patriotically foster the pillage of Tennyson, or Macaulay, or Dickens, can yet protect the inventor of a 'Chatterbox' series.' With the spirit of this remark English authors and publishers will doubtless agree. But the case does not really touch the question of copyright. The evidence showed that the Boston publishers, by using the name Chatterbox,' were representing their wares as those of the English maker, and an American trader has no right to do that in the case of books any more than in that of other kinds of goods. An American may make and sell reprints of Murray's handbooks, or imitations of Holloway's pills, but he must not represent that they are the articles made by Murray or Holloway. The ground upon which the principle is put is that there is no right to deceive the public into a belief that the goods sold by one man are those of another. The principle is common to both AmeriVOL. 30 No. 15.

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which in substance enables any householder who does not like barrel organs to order them to go away out of his hearing. We have heard about the common law of England, and the liberty of the subject, which are always suspected words. It is like talking Latin. When one talks of the liberty of the subject and the common law of England, one always suspects it cannot be true. The liberty of the subject always consists in doing something a man is not forbidden to do, and why it is unreasonable and void that he should be forbidden to play a musical instrument in the public streets of Truro, I cannot see. It is a thing which nobody would visit with severity; but on the other hand it is an extreme annoyance to have a man playing under your window with a concertina for a couple of hours, and having a number of people to listen to it and to sing. That may be a great nuisance. It is for the magistrates to say whether it is or not. If I saw, or if there was the least reason to think, that that by-law was strained unjustly, and distorted from its natural meaning; if I thought that merely

The case of the yacht Mignonette raises the question whether one of two survivors of a shipwreck may lawfully kill and eat the other in order to save himself from starvation. The Law Journal remarks: "The story of the yacht Mignonette raises no legal question about which there can be any real doubt. English law does not recognize necessity as an excuse for crime. Hunger is no defense to a charge of larceny, still less is it a defense to a charge of murder. There is authority in the books for saying that if two drowning men grasp a plank which will only support one, it is not homicide for one to push the other off. This is looked upon as a sort of act of self-defense, and is as far as the law goes in admit

because these people did not like the Salvation Army and their meetings, they tried to strain that by-law to prevent their doing what they prima facie have a right to do, my view of the case would be altogether different; but as far as I can judge, it appears from the whole of the proceedings there was fair reason to think that the playing of this musical instrument in this place was an annoyance to some of the persons who heard them, and the man who was summoned and fined was fined for that reason. On the one hand he has every right to be protected in conducting religious worship in whatever harmless way he thinks fit; but on the other hand he must obey the law, and if the law of a particular borough is that he is not to play a musi-ting the plea of necessity. Ordinarily, necessity in cal instrument in the streets if people object, then he must not play it there, or he must play it where people will not object, and I daresay there are many places where he could play it without getting into trouble." What a luxury it must be to live in a place where a householder can induce an organ-grinder to "move on " without paying

tribute!

English law means compulsion by threats of life or limb." And the Solicitors' Journal observes: Blackstone says: "There is one species of homicide se defendendo where the party is equally innocent as he who occasions the death, and yet this homicide is equally excusable from the great universal principle of self-preservation which prompts every man to save his own life preferable to that of another, where one of them must inevitably perish. As among others, in the case mentioned by Lord Bacon, where two persons being shipwrecked and getting on the same plank, but finding it not able to save them both, one of them thrust the other from it, whereby he is drowned. He who thus preserves his own life at the expense of another man's is excusable through unavoidable necessity and the principle of self-defense, since both remaining on the same plank is a mutual, though an innocent attempt upon, and endangering each other's life.' The analogy between the case of two drowning men struggling for the support of a small plank, and that of two or more men in a boat in no immediate peril otherwise than from starvation, is somewhat imperfect, since the survival of either of them could scarcely be described as even an innocent attempt upon and endangering each other's life.'" We think the difference between the two cases is very narrow, almost imperceptible. It is plain that in a struggle to get possession of the plank either would be justified in beating the other

But the magistrates of Rugby were not so certain whether mushrooms are "cultivated plants," when salt has been sown with them to encourage their growth. At common law larceny does not lie for taking things savoring of the realty, but the Criminal Law Consolidation Act makes it a summary offense to "destroy or damage with intent to steal any plant growing in any garden, orchard, pleasure-ground, nursery-ground, hothouse, greenhouse or conservatory," and also to "destroy or damage with intent to steal any cultivated root or plant used for the food of man or beast, and growin any land." The defendant was complained of for taking mushrooms from a field. The Loudon Law Journal says: "The case clearly did not come within the first offense, because the mushrooms were growing in a field and not in a garden; but the question was whether mushrooms growing in the field, and cultivated to the extent of salt being thrown down for their benefit are cultivated plants' within the meaning of the section. The magistrates decided that they were not, and it would be hard to say that they are wrong. Mush-off, even at the expense of life; but when two are

rooms are clearly not 'cultivated plants' as a class,
and merely throwing a little salt or a little manure
on a field will not alter their character in the eye
of the criminal law. If this were so, it might be
criminal to pick blackberries, because the owner
took care of the bramble bushes in clipping the
hedge. The mode of cultivating mushrooms from
spat is well known, and makes them apparent to
the eye as cultivated plants, and in this form alone
would mushrooms in the fields seem to come within
the statute. The case, which is reserved for the
opinion of the High Court, may however throw
some light on the nature and properties of a
somewhat mysterious growth." The
eventually be worthy of embalmment in our "Com-
mon Words and Phrases."

case will

once on a plank that can support only one, one has as
much right to it as the other, and if one thrusts the
other off to save his own life, how does that differ
from his killing and eating him to save his own
life?
Strictly speaking, are not both murder?
Should they not wait for the "survival of the fit-
test?" We concede that "hunger is no defense to
a charge of murder," but we do not see that danger
to one's own life is any defense to a charge of tak-
ing the life of another. But where is the jury that
would convict on such a charge? Men are not
morally responsible in such circumstances - they
are unreasoning brutes, maniacs, reduced to a state
of nature, and absolved from the obligations of
society. At least, so it will seem to the average
twelve men.

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