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on the trial is likewise considered by this court, levelence towards the particular person killed befor the purpose of determining whether the de- cause he was one within the general scope of his sired testimony was probably true, as well as malignity. McCoy v. The State, 25 Tex. 33; whether it was material if true. Dowdy v. The Lopez v. The State, 2 Ct. App. 204. State, Ct. App. 292; Sheckles v. The State, 9 Ct. Mr. Wharton says: “Where an action, unApp. 326; Lyons v. The State, 9 Ct. App. 636. lawful in itself, is done with deliberation and

It is hardly probable, if the absent witnesses, intention of mischief or great bodily harm to Hurt and Joe Aken, had testified to the proposed particular persons, or mischief indiscriminately facts stated in the application, that such testi- fall where it may and death ensue, against or bemony would have been true when so much sides the original intention of the party, it will other testimony is exhibited directly con- be murder." 2 Whar. (rin). Law, (6th Ed.) sec. tradicting it, not the least

the least important of 967. . which testimony was more than one volun- It is expressly provided by our statute that tary statement made by defendant himself, that the intention to commit an offense is presumed he was the party that did the shooting.

whenever the means used is such as would ordiIf the other witness, Davidson, had been pres-narily be used in the commission of the forbidest his testimony, that Black Crunk, who bad den act. P. C. Art. 50. And as was said by Ch. since died, had admitted to witness that he, J. Roberts in McCoy's case, “a man is always Crunk, had fired the fatal shot, would not only presumed to intend that which is the necessary have been wanting in probability of truth, but or over probable consequence of his acts, unless would have been hearsay and inadmissible as the contrary appears.” 25 Tex. 42. Appellant, evidence. “On an indictment for murder, the according to the evidence, fired his pistol into admission of other persons that they killed the the window of a passenger car of a railroad train deceased or committed the crime in controversy in which it is also shown that he must have is not evidence.” Whar. Crim. Ev. sec. 225; known, and did know, there were passengers. Sharp v. The State, 6 Ct. App. 250; Boothe v. Deceased was struck in the neck by the ball and The State, 4 Ct. App. 202; Krebs v. The State, 8 died in a day or two thereafter from the effects. Ct. App. 1; Means v. The State, 4 Tex Law A more reckless disregard of human life was Jour. p. 344.

never shown and can scarcely be imagined, and There is no testimony going to show that the dastardly act, under the circumstances deCrunk was at or near the scene of the shooting veloped is, and could be, in law nothing short of at the time it occurred. Nor did the court err murder. in refusing to allow the witness, Smith, to tes- We have found no error in the proceeding tify to these same facts on the trial.

It is no

which resulted in his conviction of murder in longer a question in this State, that flight and the second degree, the judgment assessing his the attendant circumstances are legitimate mat- punishment at fifteen years imprisonment in ters for the consideration of the jury in connec- the State penitentiary is, in all things, affirmed. tion with the other inculpatory evidence. Gose v. The State, 6 Ct. App. 121; Blake v. The State,

COURT OF APPEALS OF MARYLAND. 3 Ct. App. 581; 58 Ala. 335.

The fact that the defendant was arrested in Arkansas and brought back for trial brings the

CHERBONNIER v. Evitts. point within Blake's case, supra. There was error in permitting the introduction of the tes

APRIL TERM, 1881. timony.

Deeds, Undue Influence Knowledge of Grantor. It is Quite a number of objections are urged to the not inconsistent with the exercise of undue influence or

artifice that the deed assailed was executed by the grantor charge of the court, but upon a careful consider

voluntarily, and with a knowledge of its contents. ation we fail to see that they are tenable. Only one is deemed necessary of notice. It is said

Appeal from Caroline Circuit Court. that the charge is insufficient in that it did not The appeal is from a decree refusing to set submit the plea of negligent homicide, as shown aside a deed of gift. The bill was filed after the by the evidence, the case was and could not be death of the grantor by his executor, the residuone of negligent homicide which can only be ary devisee in his will. The evidence tended to predicated upon facts showing “no apparent in- show that the grantor was of feeble mind and tention to kill.” P. C. Art. 584; Bobbins v. The advanced age, and that the execution of the deed State, 9 Ct. App. 666.

was procured by false and fraudulent suggestions It is true that malice is the essential ingredi- made to him. ent of murder, but the principle is elementary, that RITCHIE, J., this specific malevolence towards the person In delivering the opinion of the court said : killed may be embraced in such utter and reck- The law is jealous to defeat a fraudulent use of less disregard of life as shows a man to be an en- the means afforded by intimacy of association. emy to all mankind, as when a man resolves to And it is not inconsistent with the exercise of kill the next man he meets and does kill him, undue influence or artifice that the instrument or shoots into a crowd wantonly, not knowing assailed was executed voluntarily and with a whom he may kill, (4 Black. Com. 200). In knowledge of its contents. The following cases such a case it may well be said that he has ma- are illustrative in this connection: In the case of Huguenin v. Boseley, 14 Ves. Jr. 275, before SUPREME COURT OF MICHIGAN. Lord Chancellor Eldon, in which the deed was impeached on the ground of undue influence and MUTUAL BENEFIT ASSOCIATION v. Hoyt. the confidential relation existing between the grantor and grantee, Sir Samuel Romilly ar

JULY 1, 1881. gued that “the rule is not confined to attorneys A contract by a benefit society to pay upon the death

of one of its members to one who it is clearly apparent or persons entitled to reward.” Roof v. Hines,

has no interest in tlie life insured, is contrary to public was the case of a tradesman who officially inter- policy, and will not be enforced. fered; the relief stands upon a general principle MARTSON, J. applying to all the variety of relations in which The plaintiff in error is organized under chapter 94 of dominion may be exercised by one person over the Compiled Laws. The act authorizes any number of another. He cited Hatch v. Hatch, 9 Ves. Jr. persons not less than five to organize as a corporation, 292, and Bridgman v. Greene, 2 Ib. 627, in which for the purpose of securing “to the family or heirs of any there was much evidence that the person was member upon his death ” a certain sum of money, to be perfectly aware of what he was doing, and re- paid out of the corporate funds or by an assessment upon peatedly confirmed it. Upon that Lord Chiet the members in the class to which the deceased belonged. Justice Wilmot's observation is “that it only The principle facts in this case, are that Isaiah Phair, on tends to show more clearly the deep-rooted influ- the twenty-second day of November, 1879, made a written ence obtained over him. Lord Eldon after re- application, upon one of the blank forms of the associaferring to those cases with approbation, applying tion, for a $5,000 certificate, to be made payable to Enos the principle to the case before him, in which Hoyt. In this application Phair was asked to state “rethe grantor was a widow in the prime of life,

lation of the beneficiary (Hoyt) to the applicant" and the said: “The question is not whether she knew

answer given thereto was “no relation.” The proper what she was doing, had done, or proposed to do,

medical report was made, money premium paid, and a

certificate issued on the twenty-fifth day of November. but how the intention was produced; whether

Phair died March 4, 1880, and at the time of his death all that care and prudence was placed around

there were but 1,135 members of, the association in the her as against those who advised her, which from

class in which he was insured. The association declined their situation and relation with respect to her

to pay upon several grounds, the most important and the they were bound to exert in her behalt." In the

only one we shall consider, being that Hoyt was not a case of Dent v. Bennett, Lord Cottenham quoted

member of Phair's family or one of the heirs. Sir Samuel Romilly's language, uttered thirty

This case seems to be peculiar, and if not one of fraud, years before, and incorporated it in his opinion

then from the very inception, it would appear at least to as an established principle of equity. 4. My. & be delusive and deceptive. While the insurance, if such Cr. 277. The same doctrine has been frequently it may be called, was for $5,000, and the premium paid announced in American courts. Taylor v. Tay- was for this sum, yet the actual amount was fixed by the lor, 8 How. 183. In Sears v. Shafer, 2 Seld. 268, number of members in the class to which the assred it is said: “In some cases undue influence will belonged, which turned out to be a little over 1,100, 80 be inferred from the nature of the transaction that the amount to be recovered was thus cut down. alone; and in all cases a court of equity inter- Again, the application, signed by Phair, ånd delivered poses its benign jurisdiction to set aside instru- to the company, and upon which the certificate was is. ments executed between parties, in which one sued, showed clearly, and without any ambiguity or unparty is so situated as to exercise a controlling certainty, that the certificate to be issued was to be made influence over the will, conduct, and interests of payable to Hoyt who was no relation to the applicant. another.” Harvey v. Sullens, 46 Mo. 147, is the The certificate issued three days after the date of the apcase of a will. There the court say;

" Where a

plication, referred to the application and made it and each person is so sick, worn out, and enfeebled that he of the statements therein a part of the contract and the is a mere passive instrument in the hands of statement made in the certificate was to “pay to Enos

the sum those who produce the will, it is evident such Hoyt, friend of Isaiah Phair, of Jackson. * will ought not to be permitted to stand.” We

of $5,000." have a number of Maryland decisions of the same

It is thus clearly apparent that the association in acgeneral tenor, viz: Brogden v. Walker, 2, H. &

cepting the application, receiving the premium, and isJ. 285; Carbury v. Tarmhill

, 6 Ib. 224; Highber- suing the certificate, well knew that Hoyt was not a rel

ative, and was not claimed to be a meniber of Phair's ger v, Stiffler, 21 Md. 352; Todd v. Grove, 33 Ib.

family or an heir, witbin even the most liberal construc194; and Eakle v. Reynolds, decided April Term,

tion. So that the association issued the certificate under 1880); as also Stumpf v. Stumpf of October Term,

circumstances which most strongly call upon the courts 1879, un reported, We are convinced from the

to enforce performance of their agreement, if certain improof that the mind of the grantor was greatly

perative rules of public policy do not forbid. The defense impaired, and that its perverted action was fraud

set up in this case must be considered as that of the pubulently taken advantage of by means of the

lic and not that of the defendant, as it stands in no posideed in question.

tion to interpose such a defense. Lyon v. Waldo, 36 Decree reversed.

Mich., 333.

We need not discuss the other facts at length. The

testimony of Hoyt shows that this contract was in the An Eastern man will no doubt be selected by Presi- nature of a mere wager policy, and that his interest could dent Artbur, to fill the vacancy on the Supreme bench not be promoted by prolonging the life of Phair. Such occasioned by the death of Justice Clifford.

contracts are so clearly contrary to public policy that they

ТО

PROMISE TO PAY.

ASSIGNMENT OF CLAIM TO ATTORNEY.

cannot be upheld, and must be declared absolutely void. CONTRACT-PHYSICIANS FEES-SERVICE VISITOR.

The judgment in this case must be reversed with cost of both courts. (The other justices concurred.)

Where the testimony shows that A., a physician, is called by B. to render professional service, without any

specification to whom or on whoso account such services Negligence ; Evidence.-. In an action against house and renders such services in medicul attention to

are to be rendored, and in responso thereto goes to B's the defendant company for negligently killing a traveller by running over him at a railroad cross- all the while looking to B. alono for compensation, and ing, it was claimed that at the time the train to B., who makes no objection, but promises to pay it, it

after the services are rendered presents his bill therefor was being driven at an unlawful speed, and on the question as to what rate of speed the engin-against B. for the amount of the bill. Hentig v. Keruke, eer drove the train at that time and place, Held,

Kansas, July Term, 1881. That evidence of the speed at which he drove

CONTRACT–KONSTRUCTION-AUTHORITY AND LIABILITY OF the same train at the same place on other days must be admitted. Whether such evidence

MANAGER OF BUSINESS, should be excluded for remoteness of time or place Under an agreement between the patrons and manager is a question of fact. . See State v. M. & L. R. R. of a clieese factory, providing that the latter shall make

all the sales of the choese inanufactured, the manager, in Co., 52 N. H., 526; State v. Colston, 53 N. H., 483;

the absence of an express provision to the contrary, is to Hall v. Brown, 58 N. H., 93; Shailer v. Bumstead, be allowed the necessary expenses incurred by him for 99 Mass., 112; State v. Hoyt, 46 Conn., 330. broker's commission on cheese sold at places other than

that in which the factory is situated. [State of New Hampshire v. Boston & Maine

Under a provision in iho agreement that the manager Railroad Company. Supreme Court, New Hamp- shall have charge of the whole business of manufacturshire, 1881.]

ing the cheese, and shall make a number one article, he is not liable for an inferior or unmarketable article il

produced without fault on his part. Bilsborrow v. James. Insurance; Accident.— The insured, while at a N. Y. Supreme Court. June, 1881. 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 pro- An attorney bas a right to take an assignment of an vided that there was no insurance in case of

interest in a claim to secure payment for services ren

dered in reference to it. death arising from fits or any disease, "arising

Where a plaintiff's title to the claim in suit is estabbefore or at the time or following such accidental lished by a transfer legal in itself, his recovery is an abinjury (whether consequent upon such acci- solute bar against all persons claiming through him and

the assignors upon whose acts his title is based, and it is dental injury or not, and whether causing such

incompetent for the defendant to inquire into the purdeath or disability directly or jointly with such pose for which the plaintiff obtained his title to the accidental injury.") Held, a death by accident claim, or into any supposed relation of trust between and not from fits or disease. See also Winston v.

hin and any of his assignors or others. Wetmore v.

Hegeman. N. Y. Supreme Court. March 11, 1881. Accident Insurance Company, 6 C. B. Div., 42. [Lawrence v: Accidental Insurance Company, 7 Q. B. Div., 216.]

SUPREME COURT RECORD. An outspoken judge had to sentence a prisoner in Danville, Va., to prison for eighteen years,

(New cases filed since our last report, up to Oct. 12, 1881.) for murder, the jury making a "compromise verdict.” The judge informed the defendant that the sentence was due to the "moral cowardice of 1189. Samuel B. Clark et al. v. Truman Osborn. Ertwelve men.” Telling him, that he considered

ror to the District Court of Coshocton County. Nicholas &

James and J. T. Simmons for plaintiffs ; Spangler & him guilty, as charged, and added : "You should Pomerine for defendant, rejoice and praise God that you fell into the hands of, and were tried by, a jury of your peers."

1190. vnio 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 defendMALICIOUS PROSECUTION,

ant. Justification under Civil Process— Want of Jurisdiction in Officer issuing Process.-In an action for false imprison

1191. Cincinnati House of Refuge v. Patrick H. Ryan. ment the defendants justified by filing an answer, stating

Error to the Superior Court of Cincinnati. D. Thew that the imprisonment for which the plaintiff brought

Wright for plaintiff'; Goss & Peck for defendant. his action was had under and by virtue of an order of ar

1192. President and Trustees of Montgomery County rest issued in a civil action by a justice of the peace. The defendants set forth in their answer a copy of the affida

Childrens' Home v. Superintendent and Trustees Ohio

Soldiers' and Sailors' Orphans Home. Mandamus. M. vit upon which the order of arrest was issued, and from

P. Nolan for plaintiff. this copy it appears that the affidavit did not state any one of ihe grounds required by the statute to be stated in 1193. Samuel A. Van Fossen v. The State of Ohio. an affidavit for an order of arrest; held, that the justifi

Error to the Court of Common Pleas of Muskingum Councation was not sufficient; that an affidavit for an order of

ty. Evans & Evans and Board for plaintiff; Geo. K. arrest is jurisdictional in its character, and whero it Nash for defendant. does not state any one of the grounds required by the Htatute to be stated in an affidavit for an order of arrest, 1194. A. B. Cofin v. James Secor et al. Error to the all proceedings afterward had under it, or by virtue District Court of Lucas County. _Ritchie, Howe & thereof, or which are founded thereon, are void : Hauss Ritchie for plaintiffs; Loe, Brown & Kinkade for defendv. Koblar, 25 Kans.

ants.

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AMERICAN DECISIONS, VOL. XXVII. Chief JUSTICE Boynton returned from This Volume Contains the important cases deEurope last week, arriving at his home on cided in 1834 and 1835 in N. Y., N. J., N. C., S. election day, just in time to cast his vote. C., Penna., Ohio., Tenn., Vermont Virginia, Being present on Tuesday morning at the Ala., Conn., Delaware and Illinois. Among the open session of the Supreme Court, the bench leading subjects of these decisions, and those of was full, with Judges Okey, Johnson, White sufficient importance to justify a digest of auand McIlvaine, in their chairs. Tuesday thorities are: afternoon the Court heard oral argument in

Voting by Proxy, 33 to 63. the case of Samuel Billingsley v. The State

Payment by bills of Insolvent Bank, 177–193. Appeal from the Court of Common Pleas of

Competency of Husband and Wife as witnesses Franklin County.

where the other is charged with crime, 376-382.

Whether a Verdict of Acquittal can be set

aside, 469-481. OLD TIME INSURANCE.

Dedication of Land to Public use, 554–571.

Stare Decisis, 628-635. Though the Emperor Claudius, according to

AMERICAN DECISIONS, VOL. XXVIII. Pliny, was an insurer of corn imported into Rome, Selections from the reports of the same States and though Cicero speaks distinctly of a remit- during the same years make up this volume. tance of money from Laodicea, though the old The authorities generally are collected upon the Saxon guilds were of the nature of mutual insur- following topics: ance societies,, though marine insurance was Liabilities of Successive Insurers, 118-126. already common in Europe in the fourteenth

Alienation Defeating claim for Insurance. century, and the trade in annuities—the exact What will extinguish a Vendor's Lien, 196– converse of life insurance—was well known and 203. largely extended even so early as the sixteenth Whether assignment for benefit of Creditors century; yet the earliest life insurance company precludes discharge under insolvent laws, 207-220. in England was the Mercers', established in 1698,

Restitution of Property upon Reversal of and this shortly failed. Before this, however, Judgment, 363-373. individuals of wealth had been in the habit of Members of Trades Unions may be indicted making contracts in the nature of life insurances. and Convicted for conspiracy, 501-513. The earliest instances of these occur among the The Celebrated Austin Case, 5 Rawle..(Pa.) 191, Crusaders of the Middle Ages. To the Knight so often cited in proceedings for Contempt and of the Cross, the danger most feared was captiv- where the power of the court over an Attorney ity; and though the romantic ballads of those

at Law is in question, is reported in full with days make frequent mention of gallant soldiers

notes, 657–668. released by fair Saracens, like Lord Bateman by Nothing is more entertaining to the student the Sultan's daughter, it was sufficiently plain or more satisfactory to the practitioner than a that such good luck could scarce be counted on perusal of the volumes of this valuable series. with any satisfactory degree of certainty. A Every case is important, and, either from its novpersonal insurance was therefore not unfre- elty or the fact that it relates strange cases and quently entered on, by which, in consideration coinplications, and gives sound arguments upon of a certain payment, the insurer, generally a living principles of law, the reader when he Jew, agreed to ransom his client, who thus went

once opens the book fiuds it difficult to put it on his way with a lighter heart. Another aside until all the cases and notes are carefully method was often practiced by ship-masters and read. others departing on a long and dangerous voyage, We need not mention Messrs. A. L. Bancroft by which a specific amount was deposited with & Co., San Francisco, as the publishers. a money-broker, on condition that if the insured

CRIMINAL LAW AND PRACTICE OF CALIFORNIA. returned he should receive double or treble the

A treaiiso tipon the Practice and Plending under the Criminal Law of The State of California, containing The courtesy of the husband, how can the wife join Penal Code of California and all amendinents thereto up to March, 1881. Compiled and annotated by Clinton L.

with him in conveying or encumbering it after White and Wilbur F. George, of the Sacramento Bar. she is dead? If her joining is necessary, then Law Sheep, pp. LXVI;723. San Francisco, Cal., A. L. Bancroft & Co., 1881, $7,50, net.

his courtesy after her decease not only cannot be While this work is essentially an absolute sold on execution, but it cannot be conveyed or necessity to the practitioner in California it is encumbered by the husband himself. also valuable to any one whose practice is in If it cannot be taken by any process of law, criminal courts, and particularly valuable in all then this consequence follows: That he is in states where the penal code is similar to that of much better position than a widow. The dower California.

of a widow which is only one-third of her husThis is true of New York, lowa, Kansas, band's land for life, may be sold by process of Texas, and a few others..

law immediately on the death of her husband; We would be glad to see the Penal Code of but the courtesy of the husband, which is a life California adopted in Ohio, as it has been in estate in the whole of the wife's land, cannot be New York. There are very many offences possi-touched during the life of any heir of her body. . ble without punishment under our laws, which, What is the reason for this destinction? Why in California or New York, would result in seri- protect the husband against the payment of his ous discomfort to somebody. Although we ought, honest debts and not the widow ? in justice to our law-makers, to add that very If the words “such estate," refer to the separmany good and salutary laws are dead letters

ate estate of the married woman, then the senpractically, by reason of the slovenliness, and

tence is very awkwardly constructed and reincompetency of some of our prosecuting attor

quires amendment. neys.

The last estate mentioned preceding the The arrangement of the text of the Code and the

words“ such estate” is the estate by the courtesy decisions bearing upon the various parts--the of the husband, and if the Legislature did not definition of offences, sufficiency of indictments

refer to that, they ought to have said, “such and proof, is most admirable. Taken altogether separate estate of the wife,” or used some simiit is a very valuable work.

lar expression. (Correspondence.]

What is the effect or meaning in this conSEPARATE PROPERTY OF MARRIED WO

nection of the words, “or any heir of her MEN-AN AMENDMENT WANTED.

body ?
Circleville, Ohio.

SUBSCRIBER. Section 3108 of the Revised Statutes in regard to the separate real property of the wife

SOLICITORS CHARGING LIEN ON MONreads as follows: “An estate or interest, legal or

EYS OF CLIENT. equitable, in real property, belonging to a woman at her marriage, or which may have come to her during coverture, by conveyance, gift,

As we have not infrequently noted with redevise, or inheritance, or by purchase with her spect to various subjects selected for discussion in separate means or money, shall, together with

these columns, that to which we devote the presall rents and issues thereof, be and remain her

ent paper has recently formed the matter of separate property, and under her control; and

contemporaneous treatment both in England and she may, in her own name, during coverture,

the United States; and the cases of Emden v. make contracts for labor and materials for im

Carte (44 L. T. N. S. 840) and In re Knapp (24 proving, repairing and cultivating the same,

Albany L. J. 106), in which the nature and and also lease the same for any period not ex

effect of the solicitor's right to a lien on moneys ceeding three years. This section shall not

recovered or preserved for a client were well conaffect the estate by the courtesy of the husband

sidered, while the doctrine on which that right in the real property of his wife after her de depends was further developed, or of more than cease, but during the life of such wife, or any

sufficient practical importance to render any heir of her body, such estate shall not be taken by apology for collating them unnecessary. The any process of law for the payment of his debts,

English case, in particular, is deserving of reor be conveyed or encumbered by him, unless merk, as the point involved does not appear to she join therein with him in the manner

, pre- authority; and, on the other hand, the Ameri

have been altogether covered by any previous scribed by law, in regard to her own estate.”

can decision presents an instructive examination What does “such estate” refer to ?. Does it

of the general principles fundamentally governrefer to the separate estate of the wife, or to the ing the law upon this subject, and accordingly courtesy of the husband ? If it refers to the we shall, in the first instance, quote some obser

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