cuted his part of the agreement, may be specifically enforced. Sherman v. Scott, p. 331. A medical college is not a benevolent, charitable, scientific or missionary society. - People v. Cothran, p. 344. The signing of a note by the owner over the original makers is not a material alteration. - Derrick v. Hubbard, p. 347. Where one buys clover seed, represented to be pure, it is his duty to examine it before sowing it, and if by such examination the presence of other seed can be discovered, he may not use the seed and hold the vendor liable for damages by reason of failure of crop. - Fox v. Everson, p. 355. It is actionable per se to say of an innkeeper that he keeps no accommodations and one cannot get a decent meal or decent bed at his house. Trimmer v. Hiscock, p. 364. Exploding torpedoes in a completed oil well, to quicken the flow, gives a right of lien under the statute, as labor "in or about the sinking, drilling, or completing" of an oil well. Gallagher v. Karns, p. 375.

In Pace v. State, Supreme Court of Alabama, it was recently held that it is not unconstitutional to impose a different punishment for the offense of adultery when committed between a negro and a white person, from that imposed when the guilty persons are of the same race. The discrimination is not directed against the person of any particular color or race, but against the offense, and rests on sound public policy. Somerville, J., said: "The statute is not, in our opinion, obnoxious to any constitutional objection. The fact that a different punishment is affixed to the offense of adultery when committed between a negro and a white person, and when committed between two white persons or two negroes, does not constitute a discrimination against or in favor of either race. The discrimination is not directed against the person of any particular color or race, but against the offense, the nature of which is determined by the opposite color of the cohabiting parties. The punishment of each offending party, white or black, is precisely the same. There is obviously no difference or discrimination in the punishment. The evil tendency of the crime of living in adultery or fornication is greater when it is committed between persons of the two races, than between persons of the same race. Its result may be the amalgamation of the two races, producing a mongrel population and a degraded civilization, the prevention of which is dictated by a sound public policy, affecting the highest interests of society and government. To thus punish the crime denounced by the statute, by imposing the same term of imprisonment and the identical amount of fine upon each and every person guilty of it, can in no sense result in producing any inequality in the operation or protection of the law. This view of the case is fully settled by the past decisions of this court. Green v. State, 58 Ala. 190; S. C., 29 Am. Rep. 739; Ford v. State, 53 Ala. 150; Ellis v. State, 42 id. 525; Hoover v. State, 69 id. 57. It is also sustained by the decisions of the highest courts

of many sister States. State v. Gibson, 36 Ind. 389; S. C., 10 Am. Rep. 42; State v. Kennedy, 76 N. C. 251; S. C., 22 Am. Rep. 683; Fhrasher v. State, 3 Tex. App. 263; S. C., 30 Am. Rep. 131; Kinney's case, 30 Gratt. 859; S. C., 32 Am. Rep. 690." The cases cited do not touch the point at all, but are cases concerning mixed marriages.

* *

In Camden and Atlantic R. Co. v. Hoosey, Pennsylvania Supreme Court, January 27, 1882, 12 W. N. C. 1, a passenger upon a railroad train, unable in consequence of the crowded condition of the cars to obtain a seat, although there was standing room inside, placed himself on or near the edge of the outside platform, and rode there, with his back against the end car window, holding on by an iron rail affixed to the car. While in this position a jolt occurred, by which he was thrown upon the track and injured. Suit having been brought by him against the company to recover damages for the injury, held, that he should have been nonsuited. The court said: "He was not only in the position of known danger, but was there voluntarily and in dis* * * Havregard of the rules of the company. ing shown by his own testimony that at the critical juncture he was in a position where no one of ordinary prudence should have placed himself, it was incumbent on him to prove that he was there from necessity and not from choice. * The dangerous position on the platform in which the plaintiff voluntarily placed himself while the cars were in rapid motion, was undoubtedly the immediate cause of his being jolted off. If there had been any testimony from which it could have been reasonably inferred that he was there from necessity and not from choice, it would have been a question for the jury, but in the absence of such evidence, it was error to refuse the point, and leave it to the jury to determine whether he was or was not guilty of contributory negligence. Of all the passengers on a long train of twenty overcrowded cars, the plaintiff was the only one who appears to have been injured. If he had submitted, as many others did, to the inconvenience of standing inside the cars, or if he had been guilty of no greater imprudence than passing from car to car while the train was in rapid motion, it is not at all probable he would have been injured. His much to be regretted misfortune was the result of his own carelessness. This was clearly proved by uncontroverted testimony, from which no other conclusion could reasonably be drawn." Mercur, Gordon, and Trunkey, JJ., dissent. See 25 Alb. Law Jour. 84.

In White v. Smith, 15 Vroom, 105, a wife allowed her husband to use her wagon in his business; he employed a wheelright to make necessary repairs on it; the wheelwright charged the repairs to the husband, supposing the wagon to be his; held, in trover by the wife, that the wheelwright had a lien for the repairs, the wife's authority being implied. Depue, J., gives an interesting sketch of the doctrine of

THE

TEXAS CRIMINAL LAW.

THE current novel from the southwest- - 11th Texas Court of Appeals Reports is a trifle dull. It contains only a baker's dozen of murder cases! Several of the cases reported however will bear a little reviewing, as illustrative of morals and manners in the Lone Star State.

Atkins v. State, p. 8, was a case of aggravated assault by a clergyman on one of his female parishioners. The minister undertook to salute the sister with an unholy kiss, and she being a good wife and mother, resented it. She had been doing up "his shirt” for him — probably his one “bridal shirt”— and the assault took place when he came for it. She threw it at him. She testified that she never indulged him in any undue familiarity; that she might have said, before that, that she would make a quilt for him; that she never received two half-dollars from him, but "may have accepted a small piece of cinnamon bark from him;" that she received two letters from him, but never put them in her shoe. (That is not the place where woman usually carries love-letters.) After the prosecution the shepherd addressed the following letter to the prosecutrix: "Mary, nothing but an immediate revelation from God himself would have made me believe you would have persecuted me and sworn the hard things you have against me. Do you for one moment think you can under the circumstances escape the malediction of Heaven or the vindictive wrath and punishment of Almighty God? If you answer in the affirmative, let me warn you as one who has suffered all the persecutions, slanders and misrepresentations that his Satanic Majesty could heap upon me, through and by his active subordinates, that if you persist in your course toward me you will have to take up your abode with devils in hell, there doomed to hear the clanking of chains and serbean peals, and the hideous outcry of hellhounds' never-ceasing bark.† * * You know you told me, and whispered to me, and said that if Miss did not come to stay with you that I might come, and I said in a joke, 'I wish Miss

sense.

* * *

*

was dead.' You told me afterward Bettie heard me, and you told her it was some of my nonRemember you told me if John got jealous of us you would let me know. Remember the apples, cinnamon bark, candy, and letters you got from me. You told me you put my letters in your shoe until a convenient time to read and then burn them. These questions and hundreds of others, you will remember, will be put to you in open court. My lawyer said he would tell it all on you. Where is the dollar I gave you? I have no idea you ever told Jack I gave you two half-dollars. If you appear against me in court I will sue you for one dollar, and make affidavit how I come to give you the dollar and why I gave it to you; but if you do not appear against me I will say no more about it."

But the sister "did not scare worth a cent," and + Not cinnamon, we take it.

the minister was fined one hundred dollars. If he had stolen a mule he would have gone to prison for several years.

As they have at length settled in North Carolina that chasing a woman is not conclusive evidence of an intent to commit rape, so the same is held in Hamilton v. State, p. 116, of accidentally hitting a woman's foot and then running away from her.

These

In Hill v. State, p. 132, a case of theft, the prosecuting witness was the defendant's half-brother, who testified that he complained in order to separate the accused from evil associates. The accused had an idea that his object was to disqualify him from testifying about a forgery committed by the complainant. The court thus paid their compliments to the complainant: "From the sworn testimony of this witness, his object was not to get defendant out of the country to prevent him from proving the forgery, but prompted by the loving regard of a kind relative, he desired to snatch him from his depraved and villainous associates. must have been the basest sort indeed for he verily believed that the inmates of the penitentiary would be an improvement, with whom it was his loving desire to place his half-brother. To this he directly swears. This may be true, but we will not believe it, nevertheless. The eternal law of our nature revolts at such a proposition. His half-brother's associates were very bad; to reclaim him he sent him to the penitentiary. How a sensible jury could have given credence to this witness we cannot understand. This court will never consent to a verdict and judgment the result of which is the incarceration and infamy of a citizen upon the evidence of such a kind and considerate brother, unless corroborated by cogent facts." As there was no corroboration, the conviction was set aside.

"ex

Wood v. State, p. 318, was a case of disturbing religious worship. The defendant was an horter." The court tell us that "one Rev. Joe Jolley was the pastor in charge of said church. From some cause not developed in the record, these two holy men unfortunately got at loggerheads," and “indulged in remarks" about one another. The disturbance occurred at a business meeting of the church, called to inquire into this disagreement. The meeting was opened with prayer, singing, and reading of the Scriptures. The defendant by permission arose to state his version of the affair. The court continue: "Just about this time, parson Jolley says he had given brother Giles Walker a chew of tobacco, and was putting the tobacco back into his pocket. 'Defendant, after he got up, laid his left hand upon the Bible, which was open, and said the Bible said, if my brother told a lie it was his duty to tell him of it; and that Brother Jolley had as good as swore lies on him.' At this Jolley jumped up, his right hand still in his pocket, where he had put his tobacco, and as he got up said he would take the lie off no man;' and here and then, as one of the witnesses graphically expresses it, ‘ 'the rumpus begun; there was considerable disturbance.' George Mann says 'myself and others got between them,

and finally squelched the difficulty; don't know that any licks were passed, but the meeting was disturbed. The conference silenced both parties.' The court held that the meeting was not "religious," despite the preliminary exercises by "parson Jolley, ex mero motu." The court thus exhort the parson: "The lessons of Christian charity, forgiveness and self-control, which in his daily calling he was doubtless promulgating as shepherd to that little flock, should have admonished him, even under such trying circumstances, of the duty of forbearance and forgiveness, or at all events they should have enabled him to control his temper and refrain from resentment and personal violence within the precincts of the sanctuary." Conviction reversed.

In Hoy v. State, p. 32, "penitenilery was held good for "penitentiary" in a verdict; and in Brumley v. State, p. 115, "dring of spiritous liquors" was held good for "drink of spirituous liquors," in an indictment.

In Smalley v. State, p. 147, it was held that evidence of a single witness that he had had sexual intercourse with the defendant's daughters several times, but never at her house, would not sustain a conviction of keeping a disorderly house for public prostitution. The daughters were disorderly, if the house was not.

Messrs. Jackson & Jackson, the reporters, are now and then waggish. Thus, in Durley v. State, p. 172, they say: "The conviction was for aggravated assault upon a woman who weighed 250 pounds, and the penalty was only twenty-five dollars-just ten And even that was reversed. per cent."

In Reed v. State, p. 509, it was held that adultery being only a misdemeanor, if a husband catches a man in adultery with his wife, and makes a dangerous attack upon him, and the latter resists, and to save his life necessarily kills the husband, it is only manslaughter. This is exact justice.

RULES RELATING TO OPINION EVIDENCE.

IV. INSURERS AND INSURANCE (concluded). Rule III. The opinion of a witness, qualified under Rule 1, if given (a) on a question of law or (b) on an inference which it is the province of the jury to draw from the facts, is inadmissible.

ILLUSTRATION.

(a) 1. An insurance company sued L. for the premium on a policy. L. had applied for the insurance; the policy had been made out in due form, but L. did not call for it, and it was never delivered to him. The opinion of M. that insurance is complete by the acceptance of an order for insurance, the company being thereby bound for loss, and the party ordering it bound for the premium, is inadmissible. (1)

In case 1 the question was purely one of lawwhether on a certain state of facts a certain contract was complete. As the case turned entirely on the question whether, upon the facts stated, the company had incurred any risk, so as to have earned the premium, M. might as well have been permitted to testify that the plaintiff was entitled to recover. But this (1) Lindauer v, Delaware Mut. Ins. Co., 13 Ark. 462 (1853).

was a matter to be decided by the court and jury, and not by one of the plaintiff's witnesses.

(b) 1. The question was whether the insured who had committed suicide was insane at the time of the act. It was proved that he was afflicted with melancholia. The opinion of a medical man, that this being so he would attribute the suicide to that disease, was inadmissible. (2)

2. Under a policy of insurance on a ship the insurers were not to be liable if the damages did not amount to five per cent. In an action on the policy the question was as to the amount of the damages. A witness had, after the ship had been repaired, examined the documents and evidence to ascertain whether the loss was of such a character and to such an extent as to form a legal claim. His opinion formed thereby was held inadmissible. (3)

3. In au action on a fire policy, the defense was that the property insured was in litigation, and that this increased the risk and avoided the policy because not communicated. The opinions of insurance men that

a pending litigation was material to the risk, because the insured might be tempted to fire the building or neglect it, were incompetent.(4)

4. The question was whether a steamboat insured had been negligently managed. The opinion of a river pilot that on the evidence he had heard she had, was

inadmissible.(5)

In case 1 no fact or information peculiarly within the knowledge of an expert was called for, for the purpose of guiding the jury in coming to a conclusion. It was the inference of the witness from a supposed state of facts, which inference the jury were capable of drawing and which it was their province to draw, if justified by the facts proved, without being influenced by the opinion of a witness. In case 2 it was said by the court: It seems to us to be altogether immaterial whether he did or did not form any opinion on the subject. If he did form an opinion it was not legal evidence on this trial. It was not offered to contradict any statement which the witness had made upon the trial. It was for the jury and not for the witness to form an opinion upon the documents and evidence." The reason given for the opinion in case 3 showed that the question was not one of skill or science, or which required peculiar knowledge or experience to enable a person to form an opinion on the subject. It is mere deduction of reason from a fact. founded upon the common experience of mankind, that a man may be tempted to do wrong when placed in circumstances where his cupidity is excited. A jury does not need evidence to convince them that this may be the effect. As well might a court receive the evidence of judges and public prosecutors, against a man indicted for a crime, that men generally act as the prisoner is charged to have done, when placed under the like temptation and circumstances. Such questions are for the jury and can be sufficiently comprehended by them without the opinion of witnesses to guide them. In case 4 the question of negligence was one for the jury, and in giving an opinion on the facts which were also before the jurors he was encroaching upon their functious.

Rule IV. The opinions of persons qualified under Rule 1 are admissible on the question (a) whether certain facts would, if known to the insurer, have increased the premium, but (b) not whether they would have increased the risk.

ILLUSTRATIONS.

(a) In an action on a marine policy it appeared that at the time the insurance was affected, the ship was (2) Van Zandt v. Mutual Benefit Ins. Co., 55 N. Y. 169 (1873). (3) Rider v. Ocean Ins. Co., 20 Pick. 262 (1838).

(4) Hill v. Lafayette Ins. Co., 2 Mich. 481 (1853).
(5) Cincinnati, etc., Ins. Co., v. May, 20 Ohio, 211 (1851).

aground on a bar. This fact was unknown to the insurers. The opinion of an underwriter, that the knowledge of the situation of the vessel if known to underwriters would have increased the premium, was admitted.(6)

In an action on a marine policy, the question was whether the risk had been increased from the vessel carrying cotton on deck. The opinions of nautical men, that it was no more dangerous to the vessel to carry goods on deck than under deck, were admissible. (7)

Probably no question in the law of insurance has been more discussed than that of the admissibility of the opinions of underwriters on the materiality of facts not communicated to the insurer. In the great case of Carter v. Boehm(8), the insurance was on Fort Marlborough on the island of Sumatra, the defeuse being that the weakness of the fort and the likelihood of its being taken by the French had not been disclosed to the underwriter. The opinion of an insurance broker that these were facts material to the risk was held by Lord Mansfield to be inadmissible. "We all think," said he, "the jury ought not to pay the least regard to it. It is mere opinion which is not evidence. It is opinion after an event. It is opinion without the least foundation from any previous precedent or usage. It is an opinion which if rightly formed could only be drawn from the same premises from which the court and jury were to determine the cause; and therefore it is improper and irrelevant in the mouth of a witness." This was in 1766 in the King's Bench, and before the full court. In 1816 at nisi prius before Chief Justice Gibbs of the Common Pleas, in an action on a policy of insurance on a ship, the defense set up was that certain rumors that French frigates were cruising in the vicinity at the time the policy was effected had not been communicated to the defendants. Several underwriters were called to testify that if such rumors had been communicated to them they would not have taken the risk. Gibbs, C. J., thought the evidence not admissible. " Lord Mansfield and Lord Kenyon,”(9) said he, discountenanced this evidence of opinion, and I think it ought not to be received. It is the province of a jury, and not of individual underwriters to decide what facts ought to be communicated. It is not a question of science in which scientific men will mostly think alike, but a question of opinion, liable to be governed by fancy, and in which the diversity might be endless. (10) enteen years later in Campbell v. Richards(11), the same question presented itself to the court of King Bench and was disposed of in the same way. The opinion of underwriters that certain matters, which had not been communicated by the agent of the plaintiff, were material facts, had been admitted on the trial, but on appeal the ruling was disapproved. "Witnesses conversant in a particular trade," said Lord Denman, "may be allowed to speak to a prevailing practice in that trade; scientific persons may give their opinions on matters of science, but witnesses are not receivable to state their views on matters of legal or moral obligation. nor on the manner in which others would probably be influenced." The court criticised the opposite ruling of Lord Tenderden in a case out of which this one arose (12), but singularly enough made (6) Hawes v. New England Mut. Ins. Co., 2 Curt. C. C. 229 (1855).

Lapham v. Atlas Ins. Co., 24 Pick. 1 (1833).

(8) 3 Burr. 1905; 1 Sm. L. C. 618 (1766).

Sev

(9) The chief justice was mistaken. Lord Kenyon received and acted on such evidence in Chauraud v. Angerstein, Peake N. P. 44 (1791).

(10) Durrell v. Bederley, Holt N. P. 286 (1816).

(11) 5 B. & Ad. 840 (1833).

(12) Richards v. Murdock, 10 B. & C. 527 (1830).

no mention of a still later one in which similar evidence had been received by the court of Common Pleas.(13)

But the cases on the other side of this discussion are more numerous and equally authoritative. In Chauraud v. Angerstein,(14). (1791), the insurance was effected by the owners on a ship to sail "in the month of October." At the time of taking out the policy the owners were in possession of letters from the captain stating that the ship would sail between the 5th and 10th of October, and she did sail on the 11th. The opinions of underwriters that as "the month of October" meant among insurance men sometime between the 25th of that month and the 1st of November, the suppression of these letters kept back a material fact, were admitted by Lord Kenyon, and the defendants had a verdict. In Berthon v. Loughman,(15) which arose in 1817, Holroyd, J., admitted evidence of this kind, saying: "Whether particular facts, if disclosed to an underwriter would in the opinion of the witness as a matter of judgment make a difference as to the amount of the premium is, I think, admissible evidence." Sixteen years later, the court of Common Pleas, Chief Justice Tindal delivering the judgment, approved the admission of the opinions of qualified persons as to the materiality of concealed facts. (16) The chief justice had, a year before, made a similar ruling in a case before him at nisi prius.(17) To the cases in the English courts decided about this time, and in which these questions were presented, must be added Richards v. Murdock,(18) which arose in the King's Bench in 1830, and which, as we have seen, was afterward criticised by Lord Denman in Campbell v. Richards; Littledale v. Dixon, (19) which was decided in the Common Pleas in 1805, and Haywood v. Rogers, (20) in the King's Bench in 1804. In these three cases, Chief Justices Tenterden, Mansfield and Ellenborough, respectively, received the evidence of underwriters that a certain state of facts that had not been communicated to the insurers was material to the risk. (21) The American rulings on this question are scarcely as numerous. In Moses v. Delaware Insurance Company, (22) it was alleged by the defendants that the plaintiff had concealed a material fact, viz., the particulars of a hurricane which had occurred at the port of Charleston, to which his vessel was proceeding. Mr. Justice Washington admitted the evidence of a president of an insurance company, that had this fact been known, it would have greatly enhanced the premium. Three years later in Marshall v. Union Insurance Co. (23), the vessel insured was captured on her voyage to Carthagena, and condemned on the ground of illicit trade, in a British port. It appeared that a part of the cargo had been brought from Spain to New York by a Spaniard, entered for exportation and then sold to the plaintiff, the Spaniard going out as a passenger on board the vessel. The insurer had been informed at the time the policy was effected, that several Spaniards with passports were to go as passengers in the vessel to Carthagena, but that any part of the cargo had been bought from one of those passengers from Spain, and had been recently gold by him to the plaintiff was not disclosed. For the defendants three presidents of in(13) Chapman v. Walton, 10 Bing. 57 (1833). (14) Peake P. N. 26.

(15) 2 Stark. 258 (1817).

(16) Chapman v. Walton, 10 Bing. 578 (1833). (17) Elton v. Larkins, 5 C. & P. 392 (1832.)

(18) 10 B. & C. 527 (1830).

(19) 1 Bos. & Pul. (N. R.) 152 (1805).

(20) 4 East, 590 (1804).

(21) Quin v. National Ass. Co., and see Jones v. Carey, (Ir. 316 (1839).

(22) 1 Wash. C. C. 386 (1806).

(23) 2 Wash. C. C. 357 (1809),