on the trial is likewise considered by this court, for the purpose of determining whether the desired testimony was probably true, as well as whether it was material if true. Dowdy v. The State, Ct. App. 292; Sheckles v. The State, 9 Ct. App. 326; Lyons v. The State, 9 Ct. App. 636. It is hardly probable, if the absent witnesses, Hurt and Joe Aken, had testified to the proposed facts stated in the application, that such testimony would have been true when so much other testimony is exhibited directly contradicting it, not the least important of which testimony was more than one voluntary statement made by defendant himself, that he was the party that did the shooting. If the other witness, Davidson, had been presest his testimony, that Black Crunk, who had since died, had admitted to witness that he, Crunk, had fired the fatal shot, would not only have been wanting in probability of truth, but would have been hearsay and inadmissible as evidence. "On an indictment for murder, the admission of other persons that they killed the deceased or committed the crime in controversy is not evidence." Whar. Crim. Ev. sec. 225; Sharp v. The State, 6 Ct. App. 250; Boothe v. The State, 4 Ct. App. 202; Krebs v. The State, 8 Ct. App. 1; Means v. The State, 4 Tex Law Jour. p. 344. There is no testimony going to show that Crunk was at or near the scene of the shooting at the time it occurred. Nor did the court err in refusing to allow the witness, Smith, to testify to these same facts on the trial. It is no longer a question in this State, that flight and the attendant circumstances are legitimate matters for the consideration of the jury in connection with the other inculpatory evidence. Gose v. The State, 6 Ct. App. 121; Blake v. The State, 3 Ct. App. 581; 58 Ala. 335. The fact that the defendant was arrested in Arkansas and brought back for trial brings the point within Blake's case, supra. There was error in permitting the introduction of the testimony. Quite a number of objections are urged to the charge of the court, but upon a careful consideration we fail to see that they are tenable. Only one is deemed necessary of notice. It is said that the charge is insufficient in that it did not submit the plea of negligent homicide, as shown by the evidence, the case was and could not be one of negligent homicide which can only be predicated upon facts showing "no apparent intention to kill." P. C. Art. 584; Bobbins v. The State, 9 Ct. App. 666. It is true that malice is the essential ingredient of murder, but the principle is elementary, that this specific malevolence towards the person killed may be embraced in such utter and reckless disregard of life as shows a man to be an enemy to all mankind, as when a man resolves to kill the next man he meets and does kill him, or shoots into a crowd wantonly, not knowing whom he may kill, (4 Black. Com. 200). In such a case it may well be said that he has ma levolence towards the particular person killed because he was one within the general scope of his malignity. McCoy v. The State, 25 Tex. 33; Lopez v. The State, 2 Ct. App. 204. Mr. Wharton says: "Where an action, unlawful in itself, is done with deliberation and intention of mischief or great bodily harm to particular persons, or mischief indiscriminately fall where it may and death ensue, against or besides the original intention of the party, it will be murder." 2 Whar. Crim. Law, (6th Ed.) sec. 967. It is expressly provided by our statute that the intention to commit an offense is presumed whenever the means used is such as would ordinarily be used in the commission of the forbidden act. P. C. Art. 50. And as was said by Ch. J. Roberts in McCoy's case, "a man is always presumed to intend that which is the necessary or over probable consequence of his acts, unless the contrary appears." 25 Tex. 42. Appellant, according to the evidence, fired his pistol into the window of a passenger car of a railroad train in which it is also shown that he must have known, and did know, there were passengers. Deceased was struck in the neck by the ball and died in a day or two thereafter from the effects. A more reckless disregard of human life was never shown and can scarcely be imagined, and the dastardly act, under the circumstances developed is, and could be, in law nothing short of murder. We have found no error in the proceeding which resulted in his conviction of murder in the second degree, the judgment assessing his punishment at fifteen years imprisonment in the State penitentiary is, in all things, affirmed. COURT OF APPEALS OF MARYLAND. CHERBONNIER v. EVITTS. APRIL TERM, 1881. Deeds-Undue Influence-Knowledge of Grantor. It is not inconsistent with the exercise of undue influence or artifice that the deed assailed was executed by the grantor voluntarily, and with a knowledge of its contents. Appeal from Caroline Circuit Court. The appeal is from a decree refusing to set aside a deed of gift. The bill was filed after the death of the grantor by his executor, the residuary devisee in his will. The evidence tended to show that the grantor was of feeble mind and advanced age, and that the execution of the deed was procured by false and fraudulent suggestions made to him. RITCHIE, J., In delivering the opinion of the court said: The law is jealous to defeat a fraudulent use of the means afforded by intimacy of association. And it is not inconsistent with the exercise of undue influence or artifice that the instrument assailed was executed voluntarily and with a knowledge of its contents. The following cases are illustrative in this connection: In the case SUPREME COURT OF MICHIGAN. MUTUAL BENEFIT ASSOCIATION v. HOYT. A contract by a benefit society to pay upon the death of one of its members to one who it is clearly apparent has no interest in the life insured, is contrary to public policy, and will not be enforced. MARTSON, J. of Huguenin v. Boseley, 14 Ves. Jr. 275, before Lord Chancellor Eldon, in which the deed was impeached on the ground of undue influence and the confidential relation existing between the grantor and grantee, Sir Samuel Romilly argued that "the rule is not confined to attorneys or persons entitled to reward." Roof v. Hines, was the case of a tradesman who officially interfered; the relief stands upon a general principle applying to all the variety of relations in which dominion may be exercised by one person over another. He cited Hatch v. Hatch, 9 Ves. Jr. 292, and Bridgman v. Greene, 2 Ib. 627, in which there was much evidence that the person was perfectly aware of what he was doing, and repeatedly confirmed it. Upon that Lord Chief Justice Wilmot's observation is "that it only tends to show more clearly the deep-rooted influence obtained over him." Lord Eldon after referring to those cases with approbation, applying tion, for a 85,000 certificate, to be made payable to Enos The plaintiff in error is organized under chapter 94 of the Compiled Laws. The act authorizes any number of persons not less than five to organize as a corporation, for the purpose of securing "to the family or heirs of any member upon his death" a certain sum of money, to be paid out of the corporate funds or by an assessment upon the members in the class to which the deceased belonged. The principle facts in this case, are that Isaiah Phair, on the twenty-second day of November, 1879, made a written application, upon one of the blank forms of the associa Hoyt. In this application Phair was asked to state "relation of the beneficiary (Hoyt) to the applicant " and the answer given thereto was "no relation." The proper medical report was made, money premium paid, and a certificate issued on the twenty-fifth day of November. Phair died March 4, 1880, and at the time of his death there were but 1,135 members of, the association in the class in which he was insured. The association declined to pay upon several grounds, the most important and the only one we shall consider, being that Hoyt was not a member of Phair's family or one of the heirs. This case seems to be peculiar, and if not one of fraud, then from the very inception, it would appear at least to be delusive and deceptive. While the insurance, if such it may be called, was for $5,000, and the premium paid was for this sum, yet the actual amount was fixed by the number of members in the class to which the assred belonged, which turned out to be a little over 1,100, so that the amount to be recovered was thus cut down. the principle to the case before him, in which the grantor was a widow in the prime of life, said: "The question is not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced; whether all that care and prudence was placed around her as against those who advised her, which from their situation and relation with respect to her they were bound to exert in her behalf." In the case of Dent v. Bennett, Lord Cottenham quoted Sir Samuel Romilly's language, uttered thirty years before, and incorporated it in his opinion as an established principle of equity. 4. My. & Cr. 277. The same doctrine has been frequently announced in American courts. Taylor v. Taylor, 8 How. 183. In Sears v. Shafer, 2 Seld. 268, it is said: "In some cases undue influence will be inferred from the nature of the transaction alone; and in all cases a court of equity interposes its benign jurisdiction to set aside instruments executed between parties, in which one party is so situated as to exercise a controlling influence over the will, conduct, and interests of another." Harvey v. Sullens, 46 Mo. 147, is the case of a will. There the court say; "Where person is so sick, worn out, and enfeebled that he is a mere passive instrument in the hands of those who produce the will, it is evident such will ought not to be permitted to stand." We have a number of Maryland decisions of the same general tenor, viz: Brogden v. Walker, 2, H. & J. 285; Carbury v. Tarmhill, 6 Ib. 224; Highber- suing the certificate, well knew that Hoyt was not a rel ger v, Stiffler, 21 Md. 352; Todd v. Grove, 33 Ib. 194; and Eakle v. Reynolds, decided April Term, 1880; as also Stumpf v. Stumpf of October Term, 1879, unreported, We are convinced from the proof that the mind of the grantor was greatly impaired, and that its perverted action was fraudulently taken advantage of by means of the deed in question. Decree reversed. An Eastern man will no doubt be selected by President Arthur, to fill the vacancy on the Supreme bench occasioned by the death of Justice Clifford. Again, the application, signed by Phair, and delivered to the company, and upon which the certificate was is. sued, showed clearly, and without any ambiguity or uncertainty, that the certificate to be issued was to be made payable to Hoyt who was no relation to the applicant. The certificate issued three days after the date of the application, referred to the application and made it and each of the statements therein a part of the contract and the statement made in the certificate was to "pay to Enos Hoyt, friend of Isaiah Phair, of Jackson. the sum of $5,000." 發 It is thus clearly apparent that the association in accepting the application, receiving the premium, and is ative, and was not claimed to be a member of Phair's family or an heir, within even the most liberal construction. So that the association issued the certificate under circumstances which most strongly call upon the courts to enforce performance of their agreement, if certain imperative rules of public policy do not forbid. The defense set up in this case must be considered as that of the public and not that of the defendant, as it stands in no position to interpose such a defense. Lyon v. Waldo, 36 Mich., 333. We need not discuss the other facts at length. The testimony of Hoyt shows that this contract was in the nature of a mere wager policy, and that his interest could not be promoted by prolonging the life of Phair. Such contracts are so clearly contrary to public policy that they cannot be upheld, and must be declared absolutely void. The judgment in this case must be reversed with cost of both courts. (The other justices concurred.) Negligence; Evidence. In an action against the defendant company for negligently killing a traveller by running over him at a railroad crossing, it was claimed that at the time the train was being driven at an unlawful speed, and on the question as to what rate of speed the engineer drove the train at that time and place, Held, That evidence of the speed at which he drove the same train at the same place on other days must be admitted. Whether such evidence should be excluded for remoteness of time or place is a question of fact. See State v. M. & L. R. R. Co., 52 N. H., 526; State v. Colston, 53 N. H., 483; Hall v. Brown, 58 N. H., 93; Shailer v. Bumstead, 99 Mass., 112; State v. Hoyt, 46 Conn., 330. [State of New Hampshire v. Boston & Maine Railroad Company. Supreme Court, New Hampshire, 1881.] Insurance; Accident. The insured, while at a railway station, was seized with a fit and fell off the platform across the track and was run over and killed by a passing train. The policy provided that there was no insurance in case of death arising from fits or any disease, "arising before or at the time or following such accidental injury (whether consequent upon such accidental injury or not, and whether causing such death or disability directly or jointly with such accidental injury.") Held, a death by accident and not from fits or disease. See also Winston v. Accident Insurance Company, 6 C. B. Div., 42. [Lawrence v. Accidental Insurance Company, 7 Q. B. Div., 216.] An outspoken judge had to sentence a prisoner in Danville, Va., to prison for eighteen years, for murder, the jury making a "compromise verdict." The judge informed the defendant that the sentence was due to the "moral cowardice of twelve men." Telling him, that he considered him guilty, as charged, and added: "You should. rejoice and praise God that you fell into the hands of, and were tried by, a jury of your peers." MALICIOUS PROSECUTION. Justification under Civil Process-Want of Jurisdiction in Officer issuing Process.-In an action for false imprisonment the defendants justified by filing an answer, stating that the imprisonment for which the plaintiff brought his action was had under and by virtue of an order of arrest issued in a civil action by a justice of the peace. The defendants set forth in their answer a copy of the affidavit upon which the order of arrest was issued, and from this copy it appears that the affidavit did not state any one of the grounds required by the statute to be stated in an affidavit for an order of arrest; held, that the justification was not sufficient; that an affidavit for an order of arrest is jurisdictional in its character, and where it does not state any one of the grounds required by the statute to be stated in an affidavit for an order of arrest, all proceedings afterward had under it, or by virtue thereof, or which are founded thereon, are void: Hauss v. Kohlar, 25 Kans. Where the testimony shows that A., a physician, is called by B. to render professional service, without any specification to whom or on whose account such services are to be rendered, and in response thereto goes to B's house and renders such services in medical attention to one who is the father of B. and a member of his family, all the while looking to B. alone for compensation, and after the services are rendered presents his bill therefor to B., who makes no objection, but promises to pay it, it was held, that the testimony makes out a prima facie case against B. for the amount of the bill. Hentig v. Keruke, Kansas, July Term, 1881. CONTRACT-CONSTRUCTION-AUTHORITY AND LIABILITY OF MANAGER OF BUSINESS. Under an agreement between the patrons and manager of a cheese factory, providing that the latter shall make all the sales of the cheese manufactured, the manager, in the absence of an express provision to the contrary, is to be allowed the necessary expenses incurred by him for broker's commission on cheese sold at places other than that in which the factory is situated. Under a provision in the agreement that the manager shall have charge of the whole business of manufacturing the cheese, and shall make a number one article, he is not liable for an inferior or unmarketable article if produced without fault on his part. Bilsborrow v. James. N. Y. Supreme Court. June, 1881. ASSIGNMENT OF CLAIM TO ATTORNEY. An attorney has a right to take an assignment of an interest in a claim to secure payment for services rendered in reference to it. Where a plaintiff's title to the claim in suit is established by a transfer legal in itself, his recovery is an absolute bar against all persons claiming through him and the assignors upon whose acts his title is based, and it is incompetent for the defendant to inquire into the purpose for which the plaintiff obtained his title to the claim, or into any supposed relation of trust between hin and any of his assignors or others. Wetmore v. Hegeman. N. Y. Supreme Court. March 11, 1881. SUPREME COURT RECORD. [New cases filed since our last report, up to Oct. 12, 1881.] 1189. Samuel B. Clark et al. v. Truman Osborn. Error to the District Court of Coshocton County. Nicholas & James and J. T. Simmons for plaintiffs; Spangler & Pomerine for defendant. 1190. Unio ex rel. W. M. Shimmick, Jr. v. John Green. Quo Warranto-Reserved in the District Court of Muskingum County. M. M. Granger and J. R. Stonesipher for plaintiff; A. W. Train and G. L. Philips for defend ant. 1191. Cincinnati House of Refuge v. Patrick H. Ryan. Error to the Superior Court of Cincinnati. D. Thew Wright for plaintiff; Goss & Peck for defendant. 1192. President and Trustees of Montgomery County Childrens' Home v. Superintendent and Trustees Ohio Soldiers' and Sailors' Orphans Home. Mandamus. M. P. Nolan for plaintiff. 1193. Samuel A. Van Fossen v. The State of Ohio. Error to the Court of Common Pleas of Muskingum County. Evans & Evans and Beard for plaintiff; Geo. K. Nash for defendant. 1194. A. B. Coffin v. James Secor et al. Error to the District Court of Lucas County. Ritchie, Howe & Ritchie for plaintiffs; Lee, Brown & Kinkade for defend ants. Though the Emperor Claudius, according to Pliny, was an insurer of corn imported into Rome, and though Cicero speaks distinctly of a remittance of money from Laodicea, though the old Saxon guilds were of the nature of mutual insurance societies,. though marine insurance was already common in Europe in the fourteenth century, and the trade in annuities-the exact converse of life insurance-was well known and largely extended even so early as the sixteenth century; yet the earliest life insurance company in England was the Mercers', established in 1698, and this shortly failed. Before this, however, individuals of wealth had been in the habit of making contracts in the nature of life insurances. The earliest instances of these occur among the Crusaders of the Middle Ages. To the Knight of the Cross, the danger most feared was captivity; and though the romantic ballads of those days make frequent mention of gallant soldiers released by fair Saracens, like Lord Bateman by the Sultan's daughter, it was sufficiently plain that such good luck could scarce be counted on with any satisfactory degree of certainty. A personal insurance was therefore not unfrequently entered on, by which, in consideration of a certain payment, the insurer, generally a Jew, agreed to ransom his client, who thus went on his way with a lighter heart. Another method was often practiced by ship-masters and others departing on a long and dangerous voyage, by which a specific amount was deposited with a money-broker, on condition that if the insured. returned he should receive double or treble the amount, while in the event of his non-return the Jew kept the deposit. NEW BOOKS. AMERICAN DECISIONS, VOL. XXVII. This Volume Contains the important cases decided in 1834 and 1835 in N. Y., N. J., N. C., S. C., Penna., Ohio., Tenn., Vermont, Virginia, Ala., Conn., Delaware and Illinois. Among the leading subjects of these decisions, and those of sufficient importance to justify a digest of authorities are: Voting by Proxy, 33 to 63. Payment by bills of Insolvent Bank, 177-193. Competency of Husband and Wife as witnesses where the other is charged with crime, 376-382. Whether a Verdict of Acquittal can be set aside, 469-481. · Dedication of Land to Public use, 554-571. AMERICAN DECISIONS, VOL. XXVIII. Selections from the reports of the same States during the same years make up this volume. The authorities generally are collected upon the following topics: Liabilities of Successive Insurers, 118–126. Alienation Defeating claim for Insurance. What will extinguish a Vendor's Lien, 196203. Whether assignment for benefit of Creditors precludes discharge under insolvent laws, 207–220. Restitution of Property upon Reversal of Judgment, 363–373. Members of Trades Unions may be indicted and Convicted for conspiracy, 501-513. The Celebrated Austin Case, 5 Rawle. .(Pa.) 191, so often cited in proceedings for Contempt and where the power of the court over an Attorney at Law is in question, is reported in full with notes, 657-668. Nothing is more entertaining to the student or more satisfactory to the practitioner than a perusal of the volumes of this valuable series. Every case is important, and, either from its novelty or the fact that it relates strange cases and complications, and gives sound arguments upon living principles of law, the reader when he once opens the book finds it difficult to put it aside until all the cases and notes are carefully read. We need not mention Messrs. A. L. Bancroft & Co., San Francisco, as the publishers. CRIMINAL LAW AND PRACTICE OF CALIFORNIA. Criminal Law of The State of California, containing The Penal Code of California and all amendments thereto up to March, 1881. Compiled and annotated by Clinton L. White and Wilbur F. George, of the Sacramento Bar. Law Sheep, pp. LXVI; 723. San Francisco, Cal., A. L. Bancroft & Co., 1881, $7,50, net. While this work is essentially an absolute necessity to the practitioner in California it is also valuable to any one whose practice is in criminal courts, and particularly valuable in all states where the penal code is similar to that of California. courtesy of the husband, how can the wife join with him in conveying or encumbering it after she is dead? If her joining is necessary, then his courtesy after her decease not only cannot be sold on execution, but it cannot be conveyed or encumbered by the husband himself. If it cannot be taken by any process of law, then this consequence follows: That he is in much better position than a widow. The dower of a widow which is only one-third of her hus This is true of New York, Iowa, Kansas, band's land for life, may be sold by process of Texas, and a few others.. We would be glad to see the Penal Code of California adopted in Ohio, as it has been in New York. There are very many offences possible without punishment under our laws, which, in California or New York, would result in serious discomfort to somebody. Although we ought, in justice to our law-makers, to add that very many good and salutary laws are dead letters. practically, by reason of the slovenliness, and incompetency of some of our prosecuting attor neys. The arrangement of the text of the Code and the decisions bearing upon the various parts-the definition of offences, sufficiency of indictments and proof, is most admirable. Taken altogether it is a very valuable work. [Correspondence.] SEPARATE PROPERTY OF MARRIED WOMEN-AN AMENDMENT WANTED. Section 3108 of the Revised Statutes in regard to the separate real property of the wife reads as follows: "An estate or interest, legal or equitable, in real property belonging to a woman at her marriage, or which may have come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, shall, together with all rents and issues thereof, be and remain her separate property, and under her control; and she may, in her own name, during coverture, make contracts for labor and materials for improving, repairing and cultivating the same, and also lease the same for any period not exceeding three years. This section shall not affect the estate by the courtesy of the husband in the real property of his wife after her decease, but during the life of such wife, or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or encumbered by him, unless she join therein with him in the manner prescribed by law, in regard to her own estate." What does "such estate" refer to?. Does it refer to the separate estate of the wife, or to the courtesy of the husband? If it refers to the law immediately on the death of her husband; but the courtesy of the husband, which is a life. estate in the whole of the wife's land, cannot be touched during the life of any heir of her body. What is the reason for this destinction? Why protect the husband against the payment of his honest debts and not the widow ? If the words "such estate," refer to the separate estate of the married woman, then the sentence is very awkwardly constructed and requires amendment. The last estate mentioned preceding the words" such estate " is the estate by the courtesy of the husband, and if the Legislature did not refer to that, they ought to have said, "such separate estate of the wife," or used some similar expression. What is the effect or meaning in this connection of the words, "or any heir of her body?" As we have not infrequently noted with respect to various subjects selected for discussion in these columns, that to which we devote the present paper has recently formed the matter of contemporaneous treatment both in England and the United States; and the cases of Emden v. Carte (44 L. T. N. S. 840) and In re Knapp (24 Albany L. J. 106), in which the nature and effect of the solicitor's right to a lien on moneys recovered or preserved for a client were well considered, while the doctrine on which that right depends was further developed, or of more than apology for collating them unnecessary. The sufficient practical importance to render any English case, in particular, is deserving of remark, as the point involved does not appear to have been altogether covered by any previous authority; and, on the other hand, the American decision presents an instructive examination of the general principles fundamentally governing the law upon this subject, and accordingly we shall, in the first instance, quote some obser |