Professor Bliss, in his chapters on the Limitations of Sovereignty, conflicts with certain notions entertained by Austin, but agitation is the life of doctrine. In his arguments on the basis of jurisprudence, Professor Bliss is also guilty of some curious inversions, for instance to attribute the law of nature to the property right is a veritable non causa pro causa, but yet we never criticise a speculation which is as evidently well thought out as that of this little book. In Part II, Professor Bliss treats two of the most momentous topics of our time: "Sovereignty in the Federal States" and "Secession of a member of the federation." It is but recently that we have heard Professor Dicey on the former subject, and while the impression is firm we are glad to have Professor Bliss' dissertation, which should be as widely read. The striking observation of the latter writer as to the mischief in affirming that the right of secession was adjudicated by the late war, should have some influence on current thought. If the question was settled by one war, it may be unsettled by another; either the question exists independently of all war, or it does not exist at all. These are very important truths, and we commend them to those of our readers who think on this subject. We may add that this little volume is a fine specimen of the printer's art. Published by Little, Brown & Co., Boston. THE COURT OF APPEALS DECISIONS. -Motion for reargument. Former order of the court in this case amended so as to read as follows: Order of the General Term reversed, and all that portion of the judgment of the Special Term relating to a recovery by the plaintiff from Mary A. Nostrand of rents and profits of land, and to the accounting by her for such rents and profits stricken out, and that judgment as thus modified, affirmed without costs of appeal to General Term, or to this court, or to either party; and further ordered that the remittitur from this court may be made to conform to this order-Benj. Wright, receiver, appellant, v. Elbert Nostrand and others, respondents.- Motion to advance cause. Granted without costs-People ex rel. Cayuga Indians, etc., appellants, v. Commissioners of the Land Office, respondents.-Granted so far as to allow counsel in the cases of McCormick and Taylor to intervene and submit points on the argument of No. 188, without costs-In re Petition of Ruth M. McCormick and another to intervene.. -Motion to advance cause. nied with costs-John C. Spencer, appellant, v. John Merchant, respondent.-Motion to dismiss appeal denied, with $10 costs-Fred. Zoeller, appellant, v. Julia A. Riley, administratrix, respondent.—Motion to dismiss appeal denied, without costs-Wm. F. G. Shanks, respondent, v. Josh Hart, appellant.. -Denied, with costs-In re Application of Union Ferry Company, etc., for an order awarding costs.-Motion to stand over until notice has been given to the attorneys in this case and in the case of Spray v. HegemanIn re Application of Moore v. Hegeman to recall remittitur. NOTES. De The Albany Argus says of the Hon. Amasa J. Parker of this city: "While living at Delhi, Delaware county, he was elected to the Assembly and served in the Leg HE following decisions were handed down Tues- islature of 1834. So far as is known, he is the sole day, March 24, 1885: Judgment affirmed with costs-Thomas Gauley, administrator, respondent, v. Troy City National Bank, appellant; Fannie V. Russell, respondent, v. Village of Canastota, appellant; Philip Hayes, appellant, v. Bernard Reilly, sheriff, etc., respondent; Nellie Near, administratrix, v. Delaware and Hudson Railroad Company, appellant; Owen Gilmore, administrator, respondent, v. Long Island Railroad Company, appellant; Addie M. Smith, repondent, v. Lewis H. Cramer, receiver, etc., appellant.-Appeal dismissedPeople, appellants, v. Austin Persons, respondent. Judgment reversed, new trial granted, costs to abide the event-David P. Morehouse, receiver, respondent, v. Second National Bank of Oswego, appellant.Order affirmed without costs-People v. Third Avenue Savings Bank.-Order appointing commissioners affirmed with costs-In re Petition of N. Y. L. and W. R. Co., lands of Scheu and others.-Appeal from order affirming report of commissioners dismissed-In the Petition of N. Y. L. & W. R. Co. for appointment of Scheu et al.--Order affirmed with costs-Jos. Hillenbrand, ex'r, v. Herman B. Lanfer, et al.; Wm. Smyth, acting supt., v. Edward Rowe and others; George B. Abbott, public administrator, respondent, v. John S. Curren et al., appellants.-Appeal dismissed with costs-Frances L. Carpenter, appellant, v. Wm. M. Adams et al., respondents.-Motion for reargument denied, with costs-Robert T. Smart, respondent, v. Andrew J. Smart, appellant; John A. Lambert, executor, respondent, v. Horace Craft and others, appellants; Frank J. Mills and others, respondents, v. Holmes Odell and others, appellants; Margaret Moore, appellant, v. City of Albany, respondent; In re Petition of Union Stock Yard, etc., Company to vacate. survivor of that house. Of the Senate of that year, Hon. Henry A. Foster, of Rome, is the only man now living. In 1836, he was elected to the house of representatives from the then Twentieth District, serving one term. Of the forty-three gentlemen who represented the thirty-three districts of the State, for the whole or portions of the three sessions of that Congress besides Judge Parker, the only survivors are Judges Henry A. Foster; Hiram Gray, of Elmira; Arphaxed Loomis, of Little Falls; and Richard P. Marvin, of Jamestown. March 6, 1844, he was appointed by Gov. Bouck one of the Circuit judges of the State, and served until the office was abolished in 1847. The same spring he removed to this city, and of the gentlemen whom he found in practice at the bar here, only Hon. Charles M. Jenkins and Hon. Andrew J. Colvin remain in the legal harness. With the exception of Judge Hiram Gray, who was appointed a Circuit judge, January 13, 1846, no other jurist who wore its ermine is now living. June 7, 1847, he was elected a justice of the Supreme Court for the Third judicial district. His colleagues on the bench of the District were Judges Wm. B. Wright, Ira Harris and Malbone Watson. They have all gone to their rewards, and of the thirty-two gentlemen who were chosen that year to the bench of the new Supreme Court, in the eight judicial districts, the survivors are, Judge Amasa J. Parker, of the Third; Judge Hiram Gray, of the Sixth; and Judge Richard P. Marvin, of the Eighth. Judge Parker, on the allotment, drew the full term of eight years, and served with distinction on the bench until December 31, 1855. After an absence of twenty-one years, he took his place at the bar, and commanding a place in the front rank there, he has held it till the present time." The Albany Law Journal. ALBANY, APRIL 4, 1885. CURRENT TOPICS. HE legal profession have suffered a great loss in died last month at San Francisco. He was well known as a legal author, and as the editor of the West Coast Reporter. His last and most important work, on Equity Jurisprudence, is that by which he will be chiefly remembered, and it is an exceedingly meritorious treatise, quite worthy to stand by the side of, and to supplement Story's great treatise. We infer that Mr. Pomeroy's death was unexpected, perhaps due in some measure to overwork. At all events, whether his life's work was complete or not, there can be but one opinion as to his talents and the usefulness of his career, and there will be unanimous regret at his death. The Columbia Jurist, the organ of the students of the Columbia Law School, says: “We acknowledge the courtesy of Assemblyman S. W. Johnson in sending us a copy of the proposed Civil Code, now the subject of such wide discussion. We have neither time, space, nor ability (at present) to attempt the expression of an opinion on it; but when we learned from the heading that it had been read twice, we did sympathize with the Assembly." We have heard all sorts of objections to the Code, but we never before heard it accused of being too long. Its opponents generally have charged it. with being too short. That is the opinion, we believe, of the learned head of the Law School, Professor Dwight. But it is not so long as the learned professor's lectures on any single law topic, we take it, and it certainly is not much if any longer than a very learned printed opinion on an interlocutory question in a reference tried before him, which he did us the honor recently to send us. If our young friends, the students aforesaid, should find the Code adopted, they would probably be able to learn the bare principles of the common law in less than two years, which is the time now consumed in stating them at that excellent law school. "The Jealous Mistress," is the title of an address delivered before the Bar Association of Tennessee last July, by Mr. James O. Pierce, of Memphis. At first glance, we supposed the pamphlet was an account of one of those trials in which emotional insanity is the stock defense, but on examination we find that "the jealous mistress " is the law. Mr. Pierce says: "The jealousy of this mistress is fourfold. 1. She is jealous of our time, our talents, our energies, our accomplishments. There can be no divided allegiance; all must be hers pre-eminently. Literature may attract to tasks less burdensome, and offer prizes within easier reach; politics VOL. 31-No. 14. may present opportunities for more extensive wrangling, or for more frequent posing in studied attitudes before the public; mercantile pursuits or speculations may allure with glowing prospects of accumulations of the world's wealth, an easy life, and an indolent old age; but the true lawyer will put behind him all these temptations, remembering that he has chosen a jealous mistress, whose rewards have their own peculiar value, and are reserved for those only who serve her in singleness of heart and purpose. 2. She is jealous of the quality of our service. She insists upon the best of which we may, by unceasing effort, make ourselves capable. The charms and graces of literature, the power of pure and vigorous rhetoric, the demonstrative and resistless forces of logic, the full rich fruitage of the cultured intellect, and the potent influences of warm and sympathetic affections, all these she would have employed in and devoted to her works. * * * 3. Our mistress is jealous, too, of the most minute details of our conduct while in her service; jealous for her own sake and on her own account, no less than our own. From a Bar like this of Tennessee, noted for its high standard of fraternal courtesy, it is easy to win words of approval for every sentiment which inculcates consideration for the rights and feelings of the brother lawyer. It should be easy, too, to enlist the kind and attentive regard of such a Bar in behalf of the interests and the welfare of jurisprudence herself. It should be accepted as an axiom, and adopted as a rule of conduct, by every servant of the jealous mistress, that in every act and deed in the practice of his profession, he will carefully conserve and protect the doctrines of jurisprudence for their own sake. Because of the possible injury to the law herself, no infraction of those rules should ever be consciously committed, or even indulgently tolerated. One instance may here be noticed, which will illustrate at once the demands of the jealous mistress, and the too common disregard of them." (The habit of leading witnesses is here dwelt upon and condemned.) "4. Finally, she is jealous of the advantages and the responsibilities which are the birthright of the Bar Association. The exactions of her jealousy are, as in the case of individuals, ever commensurate with our opportunities. If by such a union lawyers can secure greater ability for her service, it is the full measure of this enlarged ability which she demands. The broader wisdom which waits upon a multitude of counsellors, the deeper insight into the principles of jurisprudence which conference affords, the multiplied power which the many, when combined, can exert, of all these is the mistress jealous. We shall satisfy her only by the most strenuous efforts to do all that wit and wisdom can jointly devise. For us as an association does our birth-right prescribe the motto, Noblesse oblige? Is the reproach a just one, brothers, that the Bar Association as an institution is a failure? Is it true that it meets annually, listens to well-written papers and wise reports, passes good resolutions, partakes of a banquet, where it applauds witty responses to sapient toasts, secures a faithful press report of all that is worth reporting with much that is not, and without more adjourns? Is this to faithfully serve a jealous mistress, to improve the advantages of a position on the heights, or to impress the power and influence of our associated personality upon the age?" A pregnant question, which other Bar Associations would do well to consider. The appointment by the president of Mr. Phelps as minister to England will give pleasure to the large number of lawyers who have known Mr. Phelps as a member, and as the president of the American Bar Association. Mr. Phelps stands in the very front rank of American lawyers, and is distinguished likewise for his general culture and scholarship, his tact, his address, his knowledge of the world, his elegance as an orator, and his preeminent social power. He has all the qualifications for the post to which he is assigned. Mr. Phelps was not a sure prophet during our civil war, but there is a sort of poetic retribution in sending him to England to testify silently how much he was mistaken. Greater men than he were as much mistaken in the opposite direction — Mr. Seward, for example, who thought the "rebellion" would be put down during the life of an ordinary promissory note. We should dislike to believe that Mr. Phelps was not a patriot during the time of our national disasters, but if he was not, we can afford to forgive him now, and show our magnanimity by utilizing his unquestioned talents in the service of the country of whose life he despaired. What contemptible questions the law is compelled to stoop to is illustrated in the case of Le May v. Welch, 51 L. T. Rep. (N. S.) 867, where the Court of Appeals gravely sit in judgment on the shape of a “dude " collar, on a charge of infringement of patent. Baggallay, L. J., says: "Here is a collar of particular shape, which the plaintiffs call the Tandem Collar.' It is a collar which encircles the neck, as all collars do, but it has no band like the old-fashioned collars. It has a stud-hole at the bottom, leaving a considerable amount of space above, not only up to the line where the collar encircles the neck, but a broad rim before there comes a cut in the collar, which cut has been referred to very much. It has been called a segmental cut. A more correct way of describing the collar would be an all-round collar,' having a wedge-like form cut into it," etc. And two other judges also express opinions on the momentous question of novelty of invention. NOTES OF CASES. use of it was an infringement, he cannot have the in- does, all I can say is that every case would be a case of mistake in which a man, after consenting to a perpetual injunction, discovers some fact on which he conceives he could found a defense to the action. That is not my idea of the meaning of mistake, and I am very loth indeed to give the word 'mistake,' in this connection, so large a meaning as that would give to it. The consequence would be that in every case, or in nine out of ten cases, we should have applications of this kind by a defendant, after consent deliberately given to a perpetual injunction, to be allowed to withdraw his consent, and have the case tried on the merits. I do not think that this amounts to such mistake as to relieve a man from his deliberate consent to a perpetual injunction." In Kensit v. Great Eastern Ry. Co., 51 L. T. Rep. (N. S.) 862, Court of Appeal, a riparian owner granted a license to a person whose land did not abut on the river, to take water from the river for use in his factory. The water was returned to the stream at a point six feet lower down than the point of withdrawal, unpolluted and undiminished. Held, that a lower riparian owner was not entitled to an injunction against the land-owner so taking the water, or against the riparian owner through whose land it was taken. Opinions were delivered by Baggallay, Cotton and Lindley, JJ. The latter said: "Upon that a very ingenius argument has been addressed to us with a view to persuade us, on the part of the plaintiffs, that because somebody N Elsas v. Williams, 52 L. T. Rep. (N. S.) 39, it who is above them is taking water from the stream consents to a perpetual injunction restraining him from the use of a trade-mark, believing that his ought to be injunction, although there is no injury to the plaintiffs either actual or possible. Well, that is startling. It is not ad mitted that there is no possible injury. On the contrary, it was contended that some possible injury might accrue. But when that contention is looked at closely, I think it vanishes. So long as Free does that which he is doing there cannot be possibly more injury than he is now inflicting, which is nil. Of course, if he does something different, that is another matter. If by means of that pipe he were to impede this stream, and not return the water, there would be cause to complain. As long as he is doing nothing more or less than he does now there is no possibility of injury at all. | Then, failing that, a very ingenious attempt has been made to support this case by trying to force us to carry a step further the decisions as regards non-riparian grants. I mean the Stockport Waterworks Company v. Potter, 3 H. &. C. 300, and Ormerod v. Todmorden Joint Stock Mill Company, 11 Q. B. Div. 155. It is put in this way: It is said that a man who is not a ripariau proprietor has no right to take water from a stream at all, and that if I, a riparian proprietor, find anybody who is not a riparian proprietor taking water from the stream, I can maintain an action for an injunction, although I am not damnified. Well, that is a very startling proposition, and one would like to see some authority for it. It goes to an extent which is bordering on the absurd. According to that, if I am a riparian proprietor at the mouth of the Mississippi, and somebody a thousand miles up diverts the water, although not to my detriment, I can obtain an injunction. That is ridiculous. Let us see what the cases come to, and whether they afford any countenance for a proposition of that kind. When they are looked at they do not do any thing of the sort, The case of Stockport Waterworks Company v. Potter simply decides that the grantee of a riparian proprietor must take the water as he finds it. If it is dirty when it comes to the mouth of his pipe, he cannot complain of those who have dirtied it. He has not the rights of a riparian proprietor. The case does not decide that the licensee or grantee of a riparian proprietor cannot take some water from the stream if he hurts nobody. Such a proposition strikes me as monstrous. In Ormerod v. Todmorden Joint Stock Mill Compaay, the decision was that the grantee of a riparian proprietor could not take water and return it in a state so as to do injury to those below him. The argument there was that he could, provided he was doing that which was reasonable. The stress of the contention was that he had all the rights of a riparian proprietor. But neither of those cases decides that a licensee, or a grantee of a riparian proprietor, cannot take any water from the stream. They decided nothing of the sort, nor did they warrant any such inference. Yet unless we go that length, this argument in support of the plaintiff's case cannot be sustained. The argument cannot be maintained unless we say that a riparian proprietor cannot allow anybody to take any water out of a stream, whether anybody is injured or not. It seems to me it would be monstrous to say any thing of the sort. Then it is put in another way in an extremely ingenious way in Mr. Barber's argument, to the effect that riparian proprietors in a stream are a class of persons in the nature of a close borough, and that any one of them has a right to object to the introduction into that class of persons who have not got property bordering on the stream. Well, where is the authoritory for that? It is an ingenious suggestion, but no authority has been cited in support of it, and I am very wary of extending to the discussion of the rights of water any analogy drawn from close boroughs, or any thing of the sort. I distrust the argument. It strikes me as a false analogy altogether. It comes back however to this, that the right of these plaintiffs has not been infringed, and that is the answer to the whole case." In McNamara v. Village of Clintonville, Wisconsin Supreme Court, February 3, 1885, 22 N. W. Rep. 472, an action for personal injuries caused by a fall on a defective sidewalk,it was held that no deduction should be made from the damages on account of the prolongation of the plaintiff's disability by reason of his predisposition to inflammatory rheumatism. Cassoday, J., said, citing Oliver v. La Valle, 36 Wis. 592; Stewart v. Ripon, 38 id. 584; Brown v. Ry. Co, 54 id. 342; S. C., 41 Am. Rep. 41: "In one of these cases the plaintiff was allowed to recover increased damages by reason of an organic tendency to scrofula in his system and in each of the others by reason of a miscarriage in consequence of the injury. In the Brown case the distinction was 'made between actions for tort, where the wrong-doer is held liable for all injuries naturally resulting directly from the wrongful act, though unforeseen, and actions for the breach of contract, where the damages are limited to such as arise naturally from such breach of contract itself, or from such breach committed under circumstances in the contemplation of both parties at the time of the contract, as in Flick v. Wetherbee, 20 Wis. 392; Richardson v. Chynoweth, 26 id. 656; Candee v. Western Union T. Co., 34 id. 471; S, C., 17 Am. Rep. 452; Walsh v. Railway Co., 42 Wis. 23; Hill v. Chipman, 59 id. 218; Hadley v. Baxendale, 9 Exch. 341; Hobbs v. London, etc., R. Co., L. R., 10 Q. B. 111; Horne v. Midland Ry. Co., L. R., 8 C. P. 131; Jones v. George, 48 Am. Rep. 280; Bagley v. Cleveland, etc., R. Co., 30 Alb. Law. J. 490. The rule applicable to contracts thus quoted is taken from the opinion of the court in the recent case of Hamilton v. Magill, L. R. 12 Ir. 202, and is there said to be a more accurate statement than is found in Hadley v. Baxendale. To the same effect are the notes to that case in Sherley's Lead. Cas. 227-230, and Harvey v. Connecticut, etc., R. Co., 124 Mass. 425; S. C., 26 Am. Rep. 673. See also the late case of McMahon v. Field, L. R., 7 Q. B. Div. 595, where the plaintiff recovered on contract for the injury to his horses, who caught cold from unnecessary exposure to the weather. In that case Hobbs v. Railway, is severely criticised and narrowly limited, if not entirely overruled. The distinction taken in the Brown case has been recognized in several of the more recent cases, and in some of them that decision is expressly sanctioned. Baltimore, etc., R. Co. v. Kemp, 30 Alb. Law J. 92; S. C., 61 Md. 74, 619; Cincinnati, etc., R. Co. v. Eaton, 94 Ind. 474; S. C., 48 Am. Rep. 179; Ehrgott v. Mayor, 96 N. Y. 281; S. C., 48 Am. Rep. 622; Tice v. Munn, 94 N. Y. 621; Murdock v. Boston, etc., R. Co., 133 Mass. 15; S. C., 43 Am. Rep. 480; Beauchamp v. Saginaw M. Co., 50 (Mich. 163; S. C., 45 Am. Rep. 30; McMahon v. Field, L. R., 7 Q. B. Div. 591; and see Mr. Irving Browne's notes, 47 Am. Rep. 381, 387; 41 Am Rep. 53, 58. See also as bearing upon the question, Pittsburg, etc., R. Co. v. Staley, 1 Am. Law J.(Ohio) 136; S. C., 30 Alb. Law J. 110; Lewis v. Flint & P. M. Ry. Co., 19 N. W. Rep. 744. In actions on contracts of carriage it has often been held that a corporation or party could not by con. tract wholly exempt itself from all liability for injury inflicted by its own negligence. Richardson v. Chicago & N. W. Ry. Co., 56 Wis. 347; Canfield v. Baltimore, etc., R. Co., 45 Am. Rep. 268; Sager v. Portsmouth, etc., R. Co, 50 Am. Dec. 659. In such cases the damages recoverable cannot be within the contemplation of the contract; for they are recovered in spite of it. In McMahon v. Field, one of the judges went so far as to say that 'the parties never contemplated a breach, and the rule should rather be that the damage recoverable is such as is the natural and probable result of the breach of contract.' To the same effect is Ehrgott v. Mayor, 96 N.Y. 280. In this New York case the court 'When a party commits a tort resulting in a say: personal injury, he cannot foresee or contemplate the consequences of his tortious act. * ** A city may leave a street out of repair, and no one can anticipate the possible accidents which may happen or the injuries which may be caused. * * * The true rule, broadly stated, is that a wrong-doer is liable for the damages which he causes by his misconduct.' 96 N. Y. 281; S. C., 43 Am. Rep. 480." RULES AS TO THE PRIVILEGES OF WIT NESSES. IV. (C.) 1. M., a stockbroker, being interrogated as to certain transactions between himself and S., refuses to answer on the ground that it might subject him to the penalties of the stock-jobbing act. M. cannot be compelled to answer. (1) RULE. But a witness may be compelled to give evidence although it may degrade or disgrace him (2), subject to the former rule as to crimes and penalties; (1) Short v. Mercier, 3 Mac. & G. 205 (1851); and see Cloyes v. Thayer, 3 Hill, 564 (1842); Poindexter v. Davis, 6 Gratt. 481 (1850). (2, Kirschner v. State, 9 Wend. 140 (1859). The earlier English cases are somewhat contradictory. In R. v. Pitcher, 1 C. & P. 85 (1823); 11 Eng. C. L., a question whether any thing and provided it be relevant to the case (3) (b), or although it may render him liable to a civil action (4) (C). 1. In the course of a trial a witness is asked if he ever committed adultery with a certain woman. improper had passed between a witness and the prisoner was not allowed to be put to the former. In a note to this case it is said: "The law as to what questions may be asked in cross-examination, the answers to which have a direct tendency to degrade the witness, is very obscurely laid down in the books; and if they are permitted to be asked, there is equal obscurity whether the witness shall be excused from answering. As to whether a witness is compellable to answer degrading questions, in the case of Cooke, and in the case of Sir John Freind for high treason, Treby, C. J., laid down that a witness is not bound to answer questions "that will subject him to penalties or infamy." In Layer's case the judges appear to be of the same opinion. All these cases are reported at large in the State trials. As to what questions will be allowed to be put, in the case of Maelride v. Maelride, 4 Esp. Rep., which was an action of assumpsit, a female, who had proved the plaintiff's demand, was cross-examined as to whether she was not in keeping of the plaintiff, and Lord Alvanley overruled the question, on the ground that a witness cannot be asked questions to degrade his character; and in Rex v. Lewis, 4 Esp. Rep., which was an indictment for an assault, Lord Ellenborough would not permit the prosecutor to be asked whether he had been in the house of correction. However, on the other hand, there are the cases of the King v. E. Edwards, 4 Term Rep. 440, and that of Doctor Watson, tried at the bar for high treason. The first was an examination of persons who were tendered as bail for the prisoner, who was charged with a larceny. The court allowed one of them to be asked if he had ever stood in the pillory for perjury; and in the latter case Mr. Wetherell, for the prisoner, asked a witness named Cartles, all sorts of degrading questions. In practice, the asking of questions to degrade the witness is regulated by the discretion of the learned judge in each particular case; for in the case of Rex v. John Barnard (infra), an accomplice was asked (unchecked by the learned baron) whether he had ever been charged with felony? How many times? Whether he had been charged with uttering counterfeit coin? With stealing clothes? With stealing fowls? And whether he had not been in gaol at Gloucester? And flogged at Wingate? To each of which questions the witness very reluctantly gave a distinct answer, admitting nearly the whole of them. This man, it may be said, was an accomplice, and therefore was open to attack. But in Rex v. James Gilroy and Dennis English, Stafford Lent. Ass., 1823, before Bosanquet, Serjt., the counsel for the prisoners, who were indicted for highway robbery, was allowed to ask a witness, who stated that he had been a constable, whether he had not been turned out of office for misconduct toward a prisoner? Which he, very much against his inclination, admitted. A question which, if answered either way, will benefit your client, is always a question worth putting. The question in the principal case appears to be of this kind. It was "whether at the house any thing improper passed between him and the prisoner? If he said "yes," it degraded him with the jury; if he said "no," nobody who heard the case would believe it; and it would shake his general credibility. If overruled, it induced the jury to believe that such was the fact, and that the prosecutor, if allowed, would have admitted it. In some cases it is held that it is in the discretion of the court to allow a degrading question to be put to a witness. State v. Belausky, 3 Minn. 247 (1859). In others that such questions need not be answered by the witness. Vaughan v. Perrine, 3 N. J. (L.) 534 (1811); Respublica v. Gibbs, 3 Yeates, 429 (1802); Galbreath v. Eichelberger, id. 515 (1803). By statute in Iowa a witness is not compelled to answer a question which will expose him to "public ignominy." This term is construed to mean public disgrace and dishonor, and under this statute it has been held that a woman in an action for seduction is not compellable to answer whether she has had intercourse with men other than the defendant. Brown v. Kingsley,38 Iowa,221(1874). (3) Howel v. Com., 5 Gratt. 664 (1848); State v. Patterson, 2 Ired (L.), 346 (1842); Sodusky v. McGee, 5 J. J. Marsh. 621 (1831); Wroe v. State, 20 Ohio St. 470 (1870); Marx v. Bell, 48 Ala. 497 (1872); Smith v. Castles, 1 Gray, 108) (1854); Hill v. State, 4 Ind. 112 (1853); State v. Staples, 47 N. H. 113 (1866); Harper v. Indianapolis, etc., R. Co., 47 Mo. 580 (1871); Taylor v. Jennings, 7 Robt. (N. Y.) 58 (1867). (4) Judge of Probate v. Green, 1 How. (Miss.) 148 (1834); Hays v. Richardson, 1 G. & J. 366 (1829); Taney v. Kemp, 4 H. & J. 348 (1818); Harper v. Burrow, 6 Ired. (L.) 30 (1845); Jones v. Lanier, 2 Dev. 481; Conover v. Bell, 6 T.B. Monr.157 (1827). |