Such a inchoate right of the company to a conveyause of lands under contracts subsequently made as soon as the contracts are made and the company is in possession under them for the purposes of the charter. mortgage will take effect upon lands subsequently contracted for or purchased to secure adequate facilities and space for engine and car houses and other railroad accommodations, to which the company at the time of the purchase had a right and expected to build their road; and such incumbrance will continue though the road is not built to such land, and the right to use them in direct connection with the road, without further legislative authority, has expired. The case of a railroad holding more property for its own purposes than its present needs demand is entirely different from one in which the company buys other property distinct from the road or its appurtenances, not intended or necessary for the present or prospective exercise of its franchise and therefore not within the purview of the mortgage. The mortgage attached to the right to a deed of such lands under contract and continued to attach to it as the right grew in value, whether the increased value arose from payments and improvements made by the company or by a new consolidated company which took the entire property and assumed the debts of the first company. Hamlin v. European & North American Railway Co. Opinion by Symonds, J. WILL GIFT OF PERPETUAL INCOME OF ESTATE CREATES FEE-LIFE ESTATE-SECURITY FROM DONEE FOR LIFE. (1) The gift of the perpetual income of real estate is a gift of the fee; a gift of the income for life is a gift of a life estate. The same rule applies to personal estate, and the donee for life has the actual possession of the property, unless the will otherwise provides. Andrews v. Boyd, 5 Me. 199; Butterfield v. Haskins, 33 id. 392; Earl v. Rowe, 35 id. 414; Stone v. North, 41 id. 265; Warren v. Webb, 68 id. 133. (2) The court may require security from the donee for life that the property shall be forthcoming, intact, at the expiration of the life estate, in a case of real danger. Sampson v. Randall. Opinion by Walton, J. DEVISE FOR LIFE WITH POWER OF DISPOSAL.Where a testator devises an estate in general terms, without specifying the nature of the estate, and gives the devisee a power of disposition of the property, providing a limitation over; if the power of disposal is unconditional, the devisee takes a fee; if conditioned upon some certain event or purpose, he takes a life estate only. Where an estate is devised to a person expressly for life, with a power of disposal qualified or unqualified, the devisee takes an estate for life only, with a power to dispose of the reversion; the express limitation for life controls the operation of the power, and prevents it from enlarging the estate to a fee; to this rule however there is an exception sometimes, in the case of a bequest of perishable things, of which the use consists in the consumption. Shaw v. Hussey, 41 Me. 495; Fox v. Rumery, 68 id. 121; Warren v. Webb, 68 id. 133; Jones v. Leeman, 69 id. 489; Starr v. McEwan, 69 id. 334; Burleigh v. Clough, 52 N. H. 267; Jackson v. Robbins, 16 Johns. 537; Re Stringer's Estate, L. R., 6 Ch. D. 1; Re Hutchinson, L. R., 8 Ch. D. 540; White v. Hight, L. R., 12 Ch. D. 751; Ayer v. Ayer, 128 Mass. 575. Stewart v. Walker. Opinion by Peters, J. FINANCIAL LAW. GUARANTY -ON PROMISSORY NOTE-WHAT IS NOT ORIGINAL PROMISE. — A writing appended to a promissory note read thus: "I guarantee the payment of the within note, for value received. L. H. Mizner." Held, a guaranty and not an original undertaking. In Isett v. Hoge, this to a note was held to be a guaranty: "I do hereby guarantee the payment of the above note to said Henry Isett." In Armsbaugh v. Gearhart, 1 Jo. 482, the agreement was: "I will see the within paid." There is in this nothing more or less than an unconditional promise to pay the obligation when due, if for any reason the payer is in default. It is a contract of suretyship and not of guaranty. So in Campbell v. Baker, 10 Wright, 243, though the word "guarauty" was used, yet as the guaranty was to pay "when due," the undertaking obviously had reference to the liquidation of the note at the time specified, and not to the solvency of the maker. A like case is Roberts v. Riddle, 29 P. F. S. 468, where the guaranty was to pay the bond "according to its terms," and as one of its terms of course was its payment when due, the undertaking was in effect not different from that in Campbell v. Baker. That the guaranty was made at the time of the execution of the note, affects not the character of the contract, but only the consideration by which it is supported. As was said in Snevily v. Johnson, 1 W. & S. 309, where the guaranty is made at the same time with the principal contract, it becomes an essential ground of the credit given to the debtor, and supports both the promise of the debtor and of the guarantor. Pennsylvania Sup. Ct., Jan. 3, 1881. Mizner v. Speer. Opinion by Gordon, J. WHEN GUARANTOR OF NOTE DISCHARGED BY LACK OF DILIGENCE IN HOLDER. - Where W., who apparently has no connection with the promissory note in question, sells and assigns the same before due, and indorses his name thereon in blank, and he is the first and only indorser of the note, and afterward he is sued thereon by the person to whom he sold the same, and he sets up the following defense: that he sold and assigned the note before due, and indorsed the same as guarantor, and that at the time he sold the same, and at the time that the same became due, the maker thereof was perfectly solvent, and the note could have been collected from him by the exercise of reasonable diligence, but that afterward the maker became insolvent, and that no notice was given to the defendant of the non-payment of the note until nearly four years had elapsed after the same became due, and was then given at a time when the note could not be collected from the maker because of his insolvency, held, that the defense was sufficient; that want of due diligence on the part of the guarantee will discharge the guarantor to the amount of the loss sustained. Firman v. Blood, 2 Kan. 497; Fuller v. Scott, 8 id. 25; 2 Dan. Neg. Inst., § 1787, etc.; 2 Pars. Note & B. 136. Kansas Withers v. Berry. Opinion Sup. Ct., Jan. term, 1881. by Valentine, J. (25 Kan. 373.) NEW BOOKS AND NEW EDITIONS. AMES' CASES ON BILLS AND NOTES. A Selection of Cases on the Law of Bills and Notes, and other Negotiable Paper. With full references and citations, and also an index and summary of the cases. Prepared for use as a text-book in Harvard Law School. By James Barr Ames, Bussey Professor of Law in Harvard University. In two volumes. Boston: Soule & Bugbee, 1881. Pp. xxiii, 894; v, 892. The book is primarily intended for students, and is based on Prof. Langdell's Cases on Contracts, and follows it but too closely in its plan. The latter is a work of great and perhaps unique scientific merit, but it had no head-notes to the cases. We mildly intimated in reviewing that work that this was an important omission; but we could forgive much to Prof. Langdell, especially in a book not designed for professional and practical use. But we draw the line there. This book contains no head-notes. The editor says: "With the design of rendering these useful to the practicing lawyer also, the editor has attempted to collect in foot notes all the cumulative and adverse authorities," etc. It seems to us very clear that such a book can be of very little use to a practicing lawyer. A strange country without guide-posts is not more uninviting than a book of law-cases without head-notes. The book cannot take the place of Bigelow's Leading Cases on the same subject. The work would be even more useful to students if it had head-notes. It is hardly worth while to review with particularity a book which shows such a patent and insuperable defect. SPAULDING'S PRACTICE. The Practice in Civil Actions and Proceedings at Law in the Courts where the Common Law Practice is in vogue; with the amendments thereto necessary to incorporate the provisions of the statutes of Maine. By Joseph Whitman Spaulding, of the Sagadahoc bar; reporter of decisions of the Supreme Judicial Court of Maine. Portland: Dresser, McLellan & Co., 1881. Pp. xxxvii, 739. As the title page indicates, this book is mainly of local applicability to the State where it is published. The author is well known to the profession as one of the best reporters in the United States. From a cursory examination this work seems to be remarkably well constructed. It is well printed. HEARD'S ODDITIES OF THE LAW. Oddities of the Law, by Franklin Fiske Heard. Boston: Soule & Bugbee, 1881. Pp. 192. Mr. Heard is well known as the author of an amusing collection, entitled, we believe, "Curiosities of the Law Reports." This collection is in the same vein. There is much in it that is old and familiar, but much that though old, is unfamiliar, and it is all good. No man in the profession is better fitted to prepare such compendiums than Mr. Heard. This would be the better for an index, and it is rather a slender child to go alone - the two would make one fairly sturdy volIt is luxuriously printed. ume. CORRESPONDENCE. MERGER IN JUDGMENT. Editor of the Albany Law Journal: * The October number of the American Law Register gives quite a large space to a decision of the Supreme Court of Indiana in the case of Evansville Gas Light Co. v. State of Indiana, ex rel., etc. The court there wrestles with a question on which it conceives there is a conflict in the authorities, and it taxes its logical faculty to dispel all possibility of the conception of even an imaginary legal entity * *capable of absorbing into itself another thing greater in two very essential and prominent features." The question is whether the doctrine of merger or extinguishment is such that a judgment and decree of foreclosure of a mortgage can, by the aid of the statute of limitations, destroy a lien of the mortgage which would, ex propria vigore, have continued in force, in the absence of such judgment and decree of foreclosure. Here is one paragraph of the court's opinion: "The merger of a judgment takes up the mortgage as a cause of action but not as a lien. There is a broad distinction between a merger of a cause of action and the merger of a lien. It is owing to errors in confusing the merger of a cause of action with the merger of a lien that some of the courts have been led into the erroneous holding that a judgment extinguishes the mortgage lien." Would not the Supreme Court of Indiana have got at the question by a shorter cut, and in the proper way, if it had recognized what has, time out of mind, been a conceded qualification of the doctrine of merger or extinguishment, as applied to a judgment and decree of foreclosure, viz., that it shall not put rights on a less firm and enduring footing than they stood before resort was had to legal procedure? With all due deference to the Supreme Court of Indiana, and to the industry it has displayed in reaching by logic of its own a conclusion which an elementary principle establishes beyond all doubt, we venture to assert that no adjudged case which the court cites in that opinion can, when rightly interpreted, be claimed to deny, and that it will be difficult if not impossible to find any adjudged case that so interpreted can be claimed to deny, the proposition that when a mortgage has once achieved the footing of a specific lien it adheres to that footing in so far as any rights in the mortgaged premises conferred by it as such come in question, no matter whether the benefit of those rights is claimed by the plaintiff in a judgment and decree of foreclosure taken thereon, or by the holder of a title to the mortgaged premises which has come through a sale of the same under such judgment and decree of foreclosure. In other words, we assert it as elementary, that equity in the exercise of its protective office so limits and qualifies the merger of a mortgage and its accompanying debt in a judgment and decree of foreclosure taken thereon, as that such merger shall not be the means of rendering any claim to the mortgaged premises adverse to that of the plaintiff in such judgment and decree of foreclosure, or to that of any purchaser at a judiciasale had thereunder, any better or stronger than it was when, or would be if the mortgage and its accompanying debt were, on their original footing as an outstanding debt and mortgage; and to that end and within that limitation equity clothes the plaintiff and his privies, or the purchaser and his privies, as the case may be, with whatever armor the holder of the mortgage and its accompanying debt would, in virtue thereof, have had against such adverse claim, had a judgment and decree of foreclosure never been taken. X. Y. Z. RELATIVE OF THE HALF BLOOD. Editor of the Albany Law Journal: I think your correspondent, whose article you published on the 12th inst. (p. 400), is wrong in his conclusions. The proposition of "Uncertain," published on the 22d October, ult. (p. 340), I understand to be this: A. is possessed of personal estate only. A. marries B. and has by her (B.) one child C. (daughter); B. dies leaving A. and C. surviving. A. then marries D. and has by her (D.) one child E. (daughter). A. dies intestate, leaving D. his widow, and C. and E. his only children (the former a child by B. and the latter a child by D.) surviving. E. then dies leaving C., her sister of the half blood, and D., her mother, surviving. D. then dies intestate, possessed of personal estate, leaving C., the child of her deceased husband, by his former wife (B.), surviving. The question is, is the child C. entitled to take or succeed to any part of the personal estate of D.? Clearly not. C. is in no sense next of kin of D. She is not her relative of the whole blood or half blood; she cannot succeed to any portion of the personal estate of her intestate stepmother, irrespective of the source whence it was derived. D.'s whole personal estate passes to her next of kin, and the child C. is not such. If D. had died intestate after the death of her husband, leaving both C. and E. surviving, I think her own child E. would take all her personal estate, and C. would not succeed to any part of it, even though the intestate (D.) had received a third of it from the estate of her intestate husband. Under the statute of distributions such third becomes her absolute property, and C. her stepdaughter has no right of succession to it. See vol. 24, p. 358, Alb. L. Jour. Yours, ROCHESTER, Nov. 16, 1881. D. B. B. OFFICIAL SEARCHES. Editor of the Albany Law Journal: Mr. Lincoln, in his article under the above title, in last week's issue, has overlooked or omitted to state some important considerations in reference to searches for statutory foreclosures (p. 406, paragraph 5), sheriff's certificates of sale (same page, paragraph 3), and general assignments (p. 407, paragraph 13). I. Strictly speaking, a search for foreclosures by advertisement under the statute should be made against every holder of the title from the time of the conveyance to him clear down to date, because such notices are required by statute to be indexed against the name of the original mortgagor only, and although William Jones may have parted with the title in 1850, and it may have been transferred twenty times since, yet the holder of a mortgage made by Jones in 1850 (prior to his conveyance of the property) might not foreclose such grantee having no notice of the existence of such assignment other than such record in said county clerk's office. Simon v. Kaliske, 6 Abb. (N. S.) 224; S. C., 37 How. 249. The same result would follow if the assignor resided and owned land in any county having no register's office, and if the clerk of such county should record assignments in a separate book, and should record such assigument in such book, and not in the book or liber where deeds are usually recorded. Therefore we need search for general assignments only in the same manner, for the same time and in the same place (office and set of books) as we would search for deeds. J. C. LEVI. NEW YORK, Nov. 21, 1881. NEW YORK COURT OF APPEALS DECISIONS. till 1880, and the notice would be indexed only against THE following decisions were handed down, Tues Jones, and no search against the grantees subsequent to Jones would reveal it. II. In searching for sheriffs' certificates of sale, the conveyancer must search against each holder of the title from the date of the conveyance to him until ten years and about two months after the conveyance by him; because a judgment lien is good for ten years, and no transfer of the title subsequent to such judgment can deprive the judgment creditor of his remedy. To illustrate: A. owning real estate has a judgment recorded against him on March 10, 1860. In June, 1860, he conveys to B., who in 1862 conveys to C., who in 1864 conveys to D., who in January, 1870, dies and leaves a will, devising the property to E. Now this judgment is all this while alien and incumbrance upon these premises, but the judgment creditor, from ignorance of the existence of a title to real estate in A., or otherwise, has never sought to enforce his remedy. In January, 1870, however, after the death of D., he issues his execution, and sells out A.'s title and interest in the real estate which he had on March 10, 1860, and the sale is bad and certificate filed, and unless redemption is made the title of E. is entirely divested. It is a common practice with many conveyancers to search for sheriffs' certificates against each party only during the time such party held the title. A search made on this principle however in the given instance would never have revealed the incumbrance. I have known serious errors to be made in this way, involving grave consequences. day, November 22, 1881: Judgment with costs- - Parker v. Baxter; Slauson v. Watkins; Chamberlain v. Spargur; Ferguson v. Crawford; De Aldama v. Lesala; Kendall v. Woodruff; Bennett v. Brooke; The Continental National Bank of New York v. Townsend; Russell v. Hartt; Hoffman v. N. Y. C. & H. R_ R. Co.; Curry v. Fowler; Bevier v. Covell; Nolan v. Brooklyn City & Newtown R. R. Co.; Graham v. The Fireman's Insurance Co.; Butler v. Kidder; Argall v. Jacobs; Powers v. Smith; Coles v. Appleby. Re-argument ordered-Story v. The New York Elevated R. Co.- Judgment affirmed Flanigan v. The People. Decree affirmed with costsDavis v. Clark. Judgment reversed and new trial granted, costs to abide the event- Albany City Savings Institution v. Burdick; Dilliber v. Home Life Insurance Co.; Moore v. Gadsden; Cosgrove v. The N. Y. C. & H. R. R. Co.; Terrell v. The Brooklyn Improvement Co.; Wenzlick v. McCotter. · Order of General Term reversed and judgment of Special Term affirmed with costs - Davis v. Leopold. Order reversed with costs, and ordered that appellant be entitled to the whole of the surplus moneys and that they be paid over to him Harmon v. Hope.· Order reversed and motion denied with costs - Gardner v. Gardner. - Order affirmed and judgment absolute ordered for respondent on stipulation with costs - Day v. Bach; Selleck v. Tallman. Judgment affirmed and judgment absolute ordered for respondent on stipulation with costs - Parrott v.Sawyer. IN NOTES. N reference to "Livermore's Trustees' Handbook," noticed ante, the author desires us to say that he does state, on the first page, that "courts always allow a reasonable compensation to be paid by the trustee to his counsel, no matter how small the estate is." This information at best is meagre, and there seems to be nothing in the index to enable one to find it. American Law Record contains an interesting article by C. L. Raison, Jr., on Punishment for Escape, arguing, as we long ago argued, that State v. Lewis, 19 Kans. 260; S. C., 27 Am. Rep. 113, is erroneous. See 23 Alb. L. J. 1, 5; 22 id. 164. III. General assignments are searched for, it is true, but unless they are recorded in the offices of the clerks of the counties where land owned by the assignors is situated they constitute no incumbrance as against subsequent bona fide purchasers and mortgagees whose conveyances and mortgages are duly recorded. The assignment act requires that general assignments shall be recorded in the office of the clerk of the county where the assignor resides. The sole object of this requirement is that creditors and other persons interested in the assigned estate may know where to find a record of the assignment and of the various proceedings connected with the trust thus created. This record of the assignment in no wise conflicts with the recording act, which requires conveyances, etc., affecting land to be recorded in the office of the clerk of the county where the land is situated (in New York, Kings and Westchester, in the register's office). Consequently where A., an assignor, resides and owns land, say in New York, and his assignment is recorded in the county clerk's office, but not in the register's office of that county, such record in the county clerk's is not constructive notice to subsequent bona fide purchasers from A. direct, whose conveyances are duly recorded, and such assignment and the record thereof constitute no valid incumbrance upon the title of A.'s grantee, as associate justice of the General Term. The Judge Elliott of the Indiana Supreme Court is apparently a very discerning and judicious man, as well as a very learned judge, for in State v. Berdetta, 73 Ind. 195, he speaks of "the learned and accurate editor of the ALBANY LAW JOURNAL.” - The governor today has made the following designations of Supreme Court justices for the Fourth Department, to take effect January 1, 1882: Hon. John L. Talcott as presiding justice of the General Term, in place of Hon. Joseph Mullin, whose official term will expire January 1, next; Hon. George A. Harden as associate justice of the General Term, in place of Hon. John L. Talcott, designated presiding justice; Hon. James C. Smith The Albany Law Journal. ALBANY, DECEMBER 3, 1881. CURRENT TOPICS. HE General Term of the Supreme Court of the The ion reversing that of Justice Osborn, in People ex rel. Bush v. Thornton. The relator and the defendant were opposing candidates for the office of county judge of Sullivan county. The regular salary was $2,500, but Mr. Thornton issued and circulated a card, during the canvass, offering if elected to perform the duties for $1,200 and coal himself, i. e., to furnish coal (and stationery) for his office; and also executed a bond to the same effect, with sureties, undertaking to turn the balance of the salary over to the poor fund, if the supervisors should persist in forcing it upon him. He was declared elected, but Justice Osborn held his election void by reason of these promises and inducements. The General Term now hold that these promises and pledges were extremely reprehensible, against public policy, and criminal offers to bribe, at common law; but that they did not, per se, in the absence of all constitutional and legislative declaration, impose the penalty of disability to take and hold the office. court conclude, that in the absence of constitutional or statutory provision so declaring, ineligibility or disability cannot be pronounced by the court because of bribery or an attempt to bribe electors; that votes cast under the influence of a bribe, proved to have been so given, should not, on grounds of public policy and because of the criminality of the act, be counted, but that this goes only to the count and allowance of the vote, and does not touch the question of disability to hold the office because of bribery. The court said: "Whether a law declaring such disability would or would not be just and politic in this State is a subject for consideration by the legislative branch of the government. It is the business and duty of courts to enforce laws. They cannot make them, however desirable they may be, or however great the necessity for their existence." The decision was unanimous. It seems contrary to Carrothers v. Russell, 53 Iowa, 346; S. C., 36 Am. Rep. 222; but there a statute provided that an offer by a candidate to bribe disqualified him for the office. The same may be said of State v. Church, 5 Or. 375; S. C., 20 Am. Rep. 746. It seems contrary also to State ex rel. Newell v. Purdy, 36 Wis. 224; S. C., 17 Am. Rep. 485, where there does not appear to have been any such statute, and where the court, quoting from Lord Glenbervie (St. Ives, 2 Elec. Cas. Doug.), say: "Independent of positive statutes against bribery, whenever a person is returned in consequence of an undue influence acquired by that means, his election is void." It seems contrary also to State ex rel. Attorney-General v. Collier, 72 Mo. 13, where we do not find any such statute. We shall vote with Jus24.- No. 23 VOL. tice Osborn on this subject. On general principles of public policy, independent of constitutions and statutes, elections should be free, and when influenced by such offers as are criminal, should be declared void. Suppose Judge Thornton had "bulldozed" his election; would it require a constitutional or statutory provision to invalidate it? The distinction between the influence on the "count" and on the eligibility of the candidate seems to us too technical and shadowy. If the votes ought not to be counted, surely they cannot elect, and it is proper to inquire quo warranto they are counted. This is certainly a very important and grave question, and should go to the Court of Appeals. Under the signature of "Hortensius," a leading lawyer and legal author of the west publishes a cogent article of three columns, in the St. Louis GlobeDemocrat, entitled, "Murders in St. Louis-why they are increasing and unpunished the Supreme Court the cause." The writer aims to prove: "1. That the increase of murders in our midst is due to the lack of speedy and certain punishment; and 2. That the lack of speedy and certain punishment is partly due to the multiplicity of tribunals, and is the fault of the appellate courts in reversing convictions on technical grounds and straining the law in favor of murderers." We have been accustomed to believe that the chief causes for the unquestionable increase of homicide are, first, the demoralization occasioned by the civil war; second, the habit of alcoholic intoxication; third, the habit of carrying concealed weapons. We have been accustomed to believe, also, that there never were at any period of the world's history, so many executions for murder as at present. In spite of the local showing of "Hortensius," we still think the latter statement is generally correct. In regard to drunkenness "Hortensius" says: "From personal observation I have no hesitation in affirming that there is more drunkenness in the city of Toronto, Canada, than there is in St. Louis, with four times its population. But there is not to-day, nor has there been for a year, a single person confined in Toronto for the crime of murder or a single homicide committed. How many there are in St. Louis we know to our shame. In Canada a murderer is tried, convicted and executed within three months of the perpetration of his crime, often sooner. An appeal from the decision of the jury and the trial court in a capital case is practically unknown. With more drunkenness there are fewer murderers, because in Toronto punishment is swift and certain, while in St. Louis it is slow and uncertain." It may safely be asserted, too, we think, that there is vastly more drunkenness in England than in the United States, but the homicides are very much less numerous, and crime in general is much less prevalent. It is said that there are thirty murderers in the St. Louis jail, some of whom have been there five years and have been convicted three times, and that not one of these cases rests on circumstantial evidence, but the killing in every one is admitted! This is a bad showing for comes to have great faith in the Supreme Court." There is much force in this reasoning. We have long thought the technicalities of criminal pleading a blot upon our jurisprudence, not to be favored, but to be disregarded whenever possible. The presiding judge in the Guiteau trial is much blamed for not keeping better order and for not restraining the prisoner from his constant, irrelevant, and ridiculous interruptions. The laughter and disorder are probably much exaggerated in the reports of the daily press, which loves to give every thing a sensational air. Our London contemporaries have strongly animadverted on this proclivity, in the Leroy case. One of them remarks: "Leroy, the murderer of Mr. Gold, seems to have been just the man in whose mind the fear of death would be the administration of the law so far as the judges, inferior or superior, are concerned. That this state of things is not strictly confined to St. Louis is evident from the fact that there are twenty-six murderers in the Chicago jail. (St. Louis is ahead of Chicago in one particular, at least.) "Hortensius" certainly makes a strong showing against the appellate courts on the ground of unwise technicality. Thus, in one case, the conviction was reversed because the indictment, charging a premeditated killing of E. with a pistol, did not allege that the pistol was shot at E. "We cannot see," said this hairsplitting tribunal, "that the pistol was shot at E. It may have been fired into the air or at a flock of birds. Nor can we see that E. was hit; he may have been a feeble man who died of fright at the discharge of the pistol for any thing the indictment contains." In another case, an indict- mitigated by the feeling, that even if he were ment alleging time and place of the assault, and caught and hanged, he would be the hero of the charging murder by stabbing, from which the hour for at least a week; his life for years would be deceased "did instantly die," the conviction was minutely followed; eminent lawyers would dissect reversed because "then and there" was omitted. him morally, physically and intellectually; and a (State v. Lakey, 65 Mo. 217.) In another case the still more eminent judge would devote eloquent indictment charged that the defendant feloniously, periods to his case, which would be devoured next premeditatedly and maliciously murdered and did morning by almost every English reader in the to death the deceased "with a revolver and dirk-world. Our lay contemporaries are, we are afraid, knife;" but the conviction was set aside because largely responsible for the growth of the evil. It "the indictment contained no description of the would be increased rather than lessened by represoffense, or statement that the deceased came to hission, just as the Ephesians, by forbidding mention death by the wounds inflicted." "Hortensius " of the name of Erostratus, who burned the Temple says: "It is doubtful if language so ridiculous is to of Diana, only succeeded in securing his immortalbe found in print outside of the reports in which ity. But if we must have full reports, why should the judgments of the Supreme Judicial Court are they not be plain, unvarnished tales? The deembalmed." Perhaps the court thought that more scriptive' report, relating how the prisoner tremparticularity was necessary to show that the shoot-bled, the judge looked through his glasses, and the ing was not with the knife, and the stabbing with fine ladies whispered, is an excrescence which ought to be condemned by good taste and public feeling." This description of Leroy himself a newspaper reporter, by the way - is quite applicable to Guiteau. It But it is asked, should not the prisoner be removed from court, or gagged? By no means. is quite doubtful whether the court have any power to try a man for his life in his absence, no matter how badly he behaves. A man admitted to be sane may be reduced to order by stringent measures, no doubt. But Guiteau's counsel insists that he is insane, and his conduct is quite in keeping with the theory of the defense. It would be outrageous to The right to gag even a sane gag an insane man. man is not clear; at any rate it should be exercised only in the most extreme case, for he has a right to speak to his counsel. New trials have been granted for unnecessarily keeping a prisoner in shackles while in court. Judge Cox is displaying a commendable temperance and discretion in letting Guiteau go his length. Give him rope enough and he will hang himself, probably. A word of praise is due his counsel, Mr. Scoville. Making no pretensions to skill as a criminal lawyer, alone, and unassisted either by counsel or money, with everybody's sympathies against his client, he |