with feigned words make merchandise of you whose judgment now of a long time lingereth not and their damnation slumbereth not.' Mr. Purrington puts the following, among other pertinent questions:

1. Would a Scientist, and I include Mrs. Eddy in the term, if called to attend a child bleeding from the severed femoral artery, attend the case by Christian Science methods only, excluding surgical aid?

2. If a child at table was strangling with a crumb or fishbone in its throat, would a Scientist assume the strangulation to be an error of mortal mind and "argue with it like a congressman," using no

material aid?

3. Would a Scientist presume were a child in a populous neighborhood ill with small-pox, scarlet fever or yellow fever, this last being the "insidious

Mr. Mason so well and vigorously expresses our own ideas on the subject that we have given his remarks thus prominently in our editorial columns. These fanatics are so steeped in ignorance and impervious to argument that it is useless waste of time and gray matter to enter into discussion with them, but it remains to be seen whether, when they are made to suffer in their "mortal pocketbooks," as Mr. Mason says, they may not be made to see the error of their ways. A test case on the lines indicated by our correspondent seems to be very much needed just at this time. While on this subject, we cannot refrain from saying a word or two further about the very peculiar tenets of these people. Among those writers and thinkers who have disease that carried off Col. Glover," Mrs. Eddy's thrust the rapier of common sense into their first husband, to put aside medical aid and all sanibubbles, Mr. Wm. A. Purrington, of Newtary precautions and simply reason with disease? York, occupies a leading place. In a recent communication he points out that the fundamental distinction between the apostles of Christ and Christian Science is that the former never offered to sell divine power in the market, while the Christian Scientists constantly do so. "The apostles opened no offices and charged no fees. Mrs. Eddy boasts that her followers make handsome incomes, and that she, who was poor prior to her discovery,' now gives away $88,987 annually, which is interesting if true. It is evident, therefore, that Scientists are not to be compared with the apostles but with those false prophets of whom Simon Magus is the type. When that worthy wished St. Peter to teach him how to lay on hands, just as Mrs. Eddy teaches her alleged divine method, the apostle in scorn and wrath cried out:

Thy money perish with thee, because thou wouldst purchase the gift of God for money; and, in the second epistle, Peter aptly fortells the Scientists who demand fees and enrich themselves while suffering patients to die for lack of medical care: 'There shall be false teachers among you, who privily bring in damnable heresies, even denying the Lord that bought them, and bring upon themselves swift destruction. And many shall follow their pernicious ways; by reason of whom the way of truth shall be evil spoken of. And through covetousness shall they

In May last he wrote in the New York Sun these additional questions, which still remain unanswered:

1. If there is no pain, why did Mrs. Eddy ask Dr. Fletcher to use an anesthetic in extracting a tooth?

2. If the study of anatomy and physiology is the husbandman of disease, why does the Church Manual require the teachers of obstetrics to have the medical degree?

3. Why was that certificate of General Bates

published so long after his death?

4. Will any Christian Scientist submit to the test of actual experiment the immunity to poison that Mrs. Eddy says she and her disciples possess? The test can be made without danger with a hypodermic syringe.

5. If the divine principle cures all infirmities, why does it not cure Judge Ewing's defect of vision? Why does he wear glasses?

There is a very simple test of this alleged power to heal. Can Christian Scientists who boast their cures of cancer, give the relief that the chiropodist always affords?

But why ask questions of those who will not answer, or argue with adversaries who shift premises, evade issues, call assertion proof and, even vanquished, argue still? Mr. Jefferson aptly said of the quibbling congress of Annapolis, "To refute was easy but to silence impossible."

Announcement is made by the new State reporter, Mr. Edwin A. Bedell, of the appointment of Mr. Alvah S. Newcomb, of Kingston, N. Y., as his assistant. Mr. New

comb was born at Prattsville, Greene county, and graduated from Dartmouth college in 1878. He read law in the office of the Hon. J. Newton Fiero, of this city, then residing at and having an office at Kingston, and was admitted to the bar in 1879. Mr. Newcomb was clerk of the Surrogate's Court of Ulster county for some time, and for several years subsequent to his relinquishment of that office was the senior member of the law firm of Newcomb & Metzger, in that city. Recently he was appointed one of the lecturers at the Albany Law School. The Albany Argus says of the new assistant reporter: "Mr. Newcomb is a gentleman of scholarly attainments, and withal a thorough lawyer, well versed both in the theory and practice of the law, and possessed of a very high degree of literary skill. These are all important elements in the work of reporting decisions of the highest court of the State, and the bar is to be congratulated on the selection made by the State Reporter."

that the prisoner had become infatuated with a young woman of the village and that he wanted his wife out of the way in order that he might enjoy the society of that woman and appropriate to his own uses the fortune of some $40,000 which his wife possessed. The conviction was affirmed by the Court of Appeals, only one judge dissenting, and it looked as if no earthly power could save the convicted man from the death penalty. However, one chance remained, and the prisoner's counsel and friends determined to take advantage of it, although to the ordinary observer it looked like a forlorn hope. On the usually weak claim of newly discovered evidence, the prisoner's counsel made application to Justice Hooker, one of the newly appointed members of the judiciary of western New York, and in February last that jurist granted the application for a new trial and a change of venue. It was, we believe, the first decision of the kind in the judicial history of the State, for never before had a new trial been granted in a capital case after the judgment of death had been affirmed by the highest court. It is to be noted that the prosecution on the second trial was neither as energetic nor as able as on the first, while the defense was far stronger and abler, led by Mr. Wade, of Jamestown. According to the newspaper reports, there was an extraordinary scene in the court room when the verdict of acquittal was rendered. One re

Judge William H. Holt, of Frankfort, Ky., who has been appointed chief justice of Porto Rico by President McKinley, is one of the best known members of the judiciary of the Blue Grass State. He is a native of Kentucky and has lived the greater portion of his life at Frankfort, in which town he was born. Judge Holt is fifty-six years old. As a member of the legislature of Kentucky he took a prominent part in the legislation dur-porter said: "The solid court-house was ing the term of his service as a law-maker, and those who know him best declare unhesitatingly, that he possesses all the necessary qualifications for the important post to which the president has assigned him.

shaken to its foundation and for blocks around the earth trembled from the cheers which went up following the verdict." Another says: "Cheer after cheer reverberated through the old court-house, hats were waved and flung to the ceiling, and every man, woman and child in the room were on their feet, embracing one another and strug

The acquittal of Howard C. Benham, on his second trial for the murder of his wife, which was concluded recently at Canandai-gling to reach the side of Benham, to shake gua, N. Y., seems to have been generally expected, at least by those who had taken the trouble to follow the testimony in the case. The result of the first trial, it will be remembered, which took place at Batavia, was the prisoner's conviction and subsequent sentence to be electrocuted. The theory of the prosecution, which the jury accepted, was

him by the hand. The officers were compelled to form a barricade to protect him from the overwhelming congratulations of the impulsive throng." Commenting on this the Rochester Post-Express well says: "It was but natural that Benham, escaping the electric chair by a miracle, should give way to emotion, and that the father, mother, and

(2) The defendants are not liable to the plaintiff for the value of such grain, nor the damages resulting to plaintiff from its destruction." (3) I further conclude that the law is with the defendants, and that the plaintiff should take nothing by his suit."

Appellees have suggested some technical objections to the exceptions of appellant to the conclusions of law, but, as the questions for decision are

waive any such technicalities, and decide the questions upon their merits.

sisters that have been devoted to him, should manifest their joy; but why a court-house full of people should lose all control of themselves and scramble about to offer their congratulations to a man of Benham's character, is more than we can understand. If they were rejoicing over what they considered in a general way a triumph of justice, the joy fairly presented by the record, we are inclined to might have been more soberly expressed, considering all the circumstances of the case. This young man has led a fast life; if not immoral, he certainly misused the young wife that he had promised to love and cherish, and from first to last there has not been one single solitary thing in his career that appealed to the finer instincts of humanity or would be expected to evoke the sympathy of the public. He is acquitted of a horrible charge; he is a free man once more; he is at liberty to make a fight in the courts for the fortune left by the young wife, but he is not yet respected by the sensible men and women of Western New York. He says he is going price at the time of the demand. Up to that time

to lead a new life.' We hope so. The best thing that he can do is to keep out of the public view; to make himself as inconspicuous as possible.”

Notes of Cases.

Warehousemen - Bailment

Storage of Grain Loss of Grain - Liability of Warehousemen. In McGrew v. Thayer, decided by the Appellate Court of Indiana in May, 1900, it appeared that the owner of grain delivered it to a warehouseman under a written agreement reciting the receipt of the grain and the warehouseman's agreement to pay the market price per bushel at any time up to a designated date, and that it was held subject to the owner's risk of loss by fire. The grain was placed in bins, and mixed with grain of like quality belonging to other persons. The warehouseman sold grain from such bins, but at all times had on hand a sufficient quantity of grain of like quality to redeliver to the depositors the quantity deposited by them. It was held that the transaction constituted a bailment, and not a sale, and that the warehouseman was not liable for the market price when not demanded until after loss by fire. The court said in part:

As conclusions of law, the court stated: (1) The title to the grain left by the plaintiff in store with the defendants remained in the plaintiff up to and including the time of the fire, and that the defendants held it as bailees for the plaintiff."

The main question for decision is, do the facts specially found show a contract of bailment or a contract of sale? If the former, then the conclusions of law are correct. It is earnestly argued by appellant that the facts show a sale and not a bailment. This argument is based on that clause in the receipts which reads: "For which we agree to pay the market price per bushel at any time up to July 1, 1895." In connection with other provisions of the receipt, it is not difficult to put a construction upon this one. By this provision a time limit was given appellant by which he could, at any time within the limit (July 1, 1895), demand of appellees payment for the grain at the market

appellees could not have compelled appellant to accept from them the market price without his consent. In other words, the appellees had no right to purchase the grain at the market price without the assent of the appellant, and the special findings fail to show any such sale was ever made, or any market price ever agreed upon. The special findings failing to show this, and this fact being essential to appellant's right to recover, the fact must be regarded as having been found against him. The rule is firmly established in this State that, when a special finding is silent upon a material fact to be found, it is taken as a finding against the party having the burden of proving such fact (Insurance Co. v. Bowser, 20 Ind. App. 557, 50 N. E. 86; Relander v. State, 149 Ind. 243, 49 N. E. 30; Levi v. Allen, 15 Ind. App. 38, 43 N. E. 571; Wysong v. Nealis, 13 Ind. App. 165. 41 N. E. 388; Insurance Co. v. Rundell, 7 Ind. App. 426, 34 N. E. 538; Heiney v. Lontz, 147 Ind. 417. 46 N. E. 665; Archibald v. Long, 144 Ind. 451. 43 N. E. 439; City of New Albany v. Endres, 143 Ind. 192, 42 N. E. 683; Belshaw v. Chitwood, 141 Ind. 377, 40 N. E. 908; Bell v. Corbin, 136 Ind. 269, 36 N. E. 23).

From this we have no doubt but what the receipts show a contract of bailment, subject only to appellant's right at any time up to July 1, 1895, to demand of and receive from appellees the market price of the grain at the time of the demand. The title to the grain remained in appellant, and it is shown that it was stored in regular storage bins, mixed with other grain of like quality, and that appellant knew this. It is also shown that from

nant to our Constitution, different entirely from that under which we live, or we could have a despotism in such territory, giving the people no voice whatever in their form of government or in the election of their rulers. Certainly this is in the nature of an alarming proposition, and it can hardly be possible that it is true. If it be true, then our flag would certainly mean one thing when unfurled in Porto Rico and the Philippine Islands, and quite a different thing when floating in any of the States of our nation. It could be made to protect slavery, polygamy, or any form of oppression that the officers in power in those territories might wish to resort to. In support of his position, he cites numerous instances of what Mr. Webster has said with reference to the power of the government in ruling territories. If he has stated what Judge Day quotes him as saying, it is very evident that Mr. Webster has been on both sides of the question.

the time the grain was stored up to the time of the fire appellees kept on hand and in store grain of like character and quality to have delivered to appellant the full amounts so stored by him, and to have done the same with all other persons who had grain stored with them. This brings the case within the rule declared in the case of Drudge v. Leiter (18 Ind. App. 694, 39 N. E. 34). If there was any doubt about the construction which we have thus given the receipts in question, such doubt is made to disappear in the last clause of the receipts, which is as follows: "Subject to owner's risk of loss by fire or heating." This clause specially fixes the ownership of the grain as in appellant, and, in case of loss by fire, the loss should be that of the owner. The rule is that when property in the custody of a bailee is destroyed accidentally, without any fault on his part, the bailee is not liable (Drudge v. Leiter, supra, and authorities there cited). It is the law of this jurisdiction, as well as of many others, that where a warehouseman receives grain on deposit for the owner, to be mingled with other grain in a common receptacle, from which sales are made, the warehouseman keeping constantly on hand grain of like kind and quality for the depositor and ready for delivery to him on call, the contract is once of bailment and not of sale (Woodward v. Seamans, 125 Ind. 330, 25 N. E. 444; Rice v. Nixon, 97 Ind. 97; Bottenberg v. Nixon, 97 Ind. 106; Schindler v. Westover, 99 Ind. 395; Lyon v. Lenor, 106 Ind. 567, 7 N. E. 311; Preston v. Witherspoon, 109 Ind. 457. 9 N. E. 585; Morning-Webster's view when not influenced, as Judge star v. Cunningham, 110 Ind. 328, 11 N. E. 593: Baker v. Born, 17 Ind. App. 422, 46 N. E. 930). The facts specially found bring this case squarely within the above rule. Upon the facts found, the conclusions of law are correct.

J

BY LEMUEL CLUTE.

Referring to Mr. Webster's argument in a case relating to the territory of Florida, he says that Mr. Webster used this language: "What is Florida? It is no part of the United States. How can it be? How is it represented? Do the laws of the United States reach Florida? Not unless by particular provisions. The territory and all within it are to be governed by the acquiring power, except where there are reservations by treaty. What has congress done? She might have done anything. She might have refused the trial by jury and refused a legislature." That this was Mr.

Day says, by the impulse of a retainer, he quotes Mr. Webster's language in an argument relating to the acquisition of territory from Mexico. The speech which Mr. Webster made upon that occasion was made in the senate, evidently without careful preparation and in opposition to a motion made, which was claimed by Mr. Benton to be an unparliamentary and disorderly proposition. It was a motion to amend the appropriation bill for the current expenses of the government by tacking to it a provision or section providing a temporary government for the ceded territories and extending an enumerated list of acts of congress to them. The idea of the amendment was to have slavery recognized in the territories. It was an amendment unexpected, and Mr. Webster's reply in opposition to it, as I have stated, was evidently on the spur of the moment, without careful thought. I say this more readily because it appears from other statements of Mr. Webster to be in opposition to what he contended at other times.

UDGE DAY, in his address before the State Bar Association at Ann Arbor, takes the position, in substance, that the power of congress over the public territory is clearly exclusive and universal, is subject to no control, unless so far as it is affected by stipulations in the cession or by the ordinance of 1787, under which any of it has been settled. If he is right in this conclusion, then the inhabitants of the Philippine Islands and Porto "What is the Constitution of the United States? Rico have no constitutional rights which they can Is not its very first principle that all within its claim under the Constitution of the United States, influence and comprehension shall be represented although they may, according to his theory, be ter- in the legislature which it establishes, with not ritory belonging to this government. We could only a right to debate and a right to vote in both hold the Philippine Islands for an indefinite time houses of congress, but a right to partake in the and rule them under a form of government repug-choice of the president and vice-president, and can

Mr. Calhoun, at the same time, in reply, took exactly the opposite view from Mr. Webster's, in-personal liberty is extended, by force of the Consisting that the Constitution interpreted itself institution itself, over every new territory. Conthis, that it pronounced itself to be the supreme law of the land, and that any territory belonging to the United States became a part of the land. In the sense which Mr. Calhoun argued, our Supreme Court has since that time fully sustained him.