fixed by the legislature, and they cannot, therefore. be reviewed by certiorari.—QUINCHARD V. BOARD of TRUSTEES OF ALAMEDA, Cal., 45 Pac. Rep. 856.

75. NATIONAL BANKS-Agent to Succeed Receiver.-27 Stat. 345, ch. 360, § 3, authorizes the election of an agent by the stockholders of a national bank in the hands of a receiver when all indebtedness to outside creditors has been paid, and provides that such agent, after giving bond, shall be vested with the control of the bank's affairs by the controller and receiver, being accountable to the circuit or district court of the United States: Held, that such agent takes the place of the receiver, and is at least a quasi public officer, the regularity and validity of whose appointment cannot be questioned in a collateral proceeding.-CHETWOOD V. CALIFORNIA NAT. BANK OF SAN FRANCISCO, Cal., 45 Pac. Rep. 854.

76. NEGLIGENCE-Municipal Corporations-Defective Street. It cannot be held as a matter of law that the driver of a horse injured in the darkness by reason of excavations in the street was guilty of contributory negligence because he drove over such street instead of another equally convenient.-CARSTESEN V. TOWN OF STRATFORD, Conn., 35 Atl. Rep. 276.

77. NEGLIGENCE-Fellow-servants.-A local telegraph operator at a station on the line of a railroad, who receives and delivers the orders of the train dispatcher in respect to the movement of trains, is the fellowservant of the employees of the railroad company in charge of the train; and such employees, if injured in consequence of the negligence of the telegraph operator, cannot recover damages from the railroad company. OREGON SHORT LINE & U. N. RY. Co. v. FROST, U. S. C. C. of App., 74 Fed. Rep. 965.

78. NEGLIGENCE-Comparative Negligence-Imputed Negligence. In an action against a railroad company for injuries sustained by plaintiff while riding across a railroad track in a carriage driven by the employee of a livery stable, an instruction that if the accident was caused by the gross negligence of the driver of the carriage, and the persons in charge of the engine were guilty of only slight negligence, plaintiff cannot recover, was properly refused, as invoking the doctrine of comparative negligence.-TEXAS & P. RY. Co. v. CURLIN, TEX., 36 S. W. Rep. 1003.

79. NEGOTIABLE INSTRUMENTS.-Where, in an action on a note secured by a pledge of stock in a corporation, both parties request a sale of the stock, the admission in evidence of the certificate of stock, though not referred to in the pleading, is not error.-RATHBUN V. JONES, S. Car., 25 8. E. Rep. 214.

80. NEGOTIABLE INSTRUMENTS - Action for Interest. -Where the principal of a promissory note is payable at the end of a given term of years, but the note stipulates for the payment annually of the interest accruing thereon, any installment of interest past due, to gether with interest thereon, may be sued for and collected before the note, as to principal, has matured.RAY V. PEASE, Ga., 25 S. E. Rep. 360.

The

81. NEGOTIABLE INSTRUMENT — Action on Note.-An action upon a negotiable promissory note payable to order, the title to which, by appropriate indorsement, has become vested in a named person as cashier, may be maintained by a bank of which this person was in fact cashier when the indorsement was made. declaration in such a case ought to contain allegations showing that this person was such cashier, and that the ownership of the note sued upon was in the plaintiff. Its failure to contain such allegations, unless cured by amendment, renders it fatally defective, and advantage of its defects may be taken even at the trial term by a motion to dismiss.-HOBBS V. CHEMICAL NAT. BANK, Ga., 25 8. E. Rep. 348.

83. PARTNERSHIP Notice of Dissolution.-Where, in the course of its regular business, a partnership had been accustomed to accept drafts drawn upon it by another, and to pay the same to a bank at which they had been regularly discounted, and the bank, within the knowledge of the partnership while yet existing, still held one or more of these drafts which had been accepted, but not paid, the bank was, under these circumstances, such a creditor of the partnership as to be entitled to actual notice of its dissolution.-CAMP V. SOUTHERN BANKING & TRUST CO., Ga., 25 S. E. Rep. 362. 84. PARTNERSHIP - Power of Partner to Bind Firm.Where the president and cashier of a bank, being also members of a partnership composed of themselves and another person, to the capital stock of which they had, under the partnership articles, agreed to contribute a given sum, without the knowledge or consent of that person executed and delivered to the bank a promis. sory note in the name of the partnership for the purpose of raising the money they had so agreed to put into the partnership business, although the money obtained from the bank upon such note was in fact used for the purpose stated, the transaction was one for the private benefit alone of the two members of the partnership who thus raised the money, and in no sense for the benefit of the partnership itself.-BROBSTON V. PENNIMAN, Ga., 25 S. E. Rep. 350.

85. POWER OF ATTORNEY Death of Principal.-A transfer of stock under a power of attorney after the death of the principal, which was known by the transferee, is invalid. A pledge of stock under a power of attorney for debts other than the principal's unauthorized by the power of attorney, which was seen by the pledgee, who also knew who owned the stock and who owed the debts, gives no lien.-IN RE KERN'S ESTATE, Penn., 35 Atl. Rep. 231.

86. PRINCIPAL AND AGENT Ostensible Agents.Plaintiff sold cattle to one claiming to be acting as agent for defendant, and paying by draft drawn on defendant. He had made similar sales previously, and the defendant had paid, and before the one in question the buyer had telegraphed defendant as to the price to be paid for a portion of the cattle, the message and answer being shown plaintiff. The cattle were received, and used by defendant, who refused, however, to pay the draft: Held, that without regard to the actual relations between defendant and the buyer, under Civ. Code, § 2300, providing that "an agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be bis agent," defendant was liable for the price of the cattle.-BUCKLEY V. SILVERBERG, Cal., 45 Pac. Rep. 804.

87. PRINCIPAL AND SURETY - Conditional Delivery.Where a note was signed by defendant and others as sureties, with a written condition thereon that it should "not be delivered until 10 men of unqualified solvency shall have first signed it as sureties," with an agreement that the solvency of the signers should be passed on by one of the sureties, a delivery without compliance with such conditions was not binding on the sureties.-CAMPBELL PRINTING-PRESS & MANUF'G CO. V. POWELL, Tex., 36 S. W. Rep. 1005.

89. QUIETING TITLE Possession of Land.-One having a deed and good title to a tract of land, and actual possession of a part of it, has constructive possession of the remainder, enabling him to maintain a suit to quiet title thereto, against one who, though having a deed giving him color of title thereto, and being in possession of other land included in his deed, has done nothing but irregular, occasional, or equivocal acts to oust the true owner.-GENTILE V. KENNEDY, N. Mex., 45 Pac. Rep. 879.

crossing where it omitted to give the statutory signals does not depend on whether or not such omission was the proximate cause of the injury, as, under Rev. St. § 1692, it is equally liable if it contributed thereto.STROTHER V. SOUTH CAROLINA & G. R. Co., S. Car., 25 8. E. Rep. 272.

91. RAILROAD COMPANY

Injury to Personal Prop. erty. Rev. St. 1893, § 1543, providing that a railroad corporation may sue and be sued "in any court of law or equity in this State," does not refer to the place of trial; and within Code, § 146, which provides that ac tions for injuries to personal property shall be tried in the county in which defendant resides at the time of the commencement of the action, a railroad corporation is a resident of a county where its line is located, and where it maintains a public office, and an agent upon whom process may be served.-TOBIN V. CHESTER & L. NARROW-GUAGE R. Co., S. Car., 25 8. E. Rep. 283. 92. RAILROAD COMPANIES - Negligence-Assumption of Risk. The erection of a telegraph pole by a railroad company so near to a side track as to expose the employees to the risk of injury while performing their duties, is negligence. Injury from a telegraph pole erected dangerously close to a side track is not a risk assumed by a railroad employee, unless he has knowl edge of the defect, or competent means of knowing it, and continues in the employment.-CRANDALL V. NEW YORK, N. H. & H. R. Co., R. I., 35 Atl. Rep. 307.

93. RAILROAD TICKET-Construction.-In construing a special contract embodied in a railroad ticket, and limiting the purchaser's rights, language of uncertain or doubtful meaning should generally be taken in its strongest sense against the company by which the ticket was issued and sold, and in favor of the purchaser.-GEORGIA RAILROAD & BANKING CO. V. CLARKE, Ga., 25 S. E. Rep. 368.

- Estoppel.

94. SALE Where a corporation obtains and keeps the proceeds of an unauthorized contract made by one of its officers, it is estopped to repudiate the contract. - CLEMENT, BANE & Co. v. MICHIGAN CLOTHING Co., Mich., 68 N. W. Rep. 224.

95. SALE OF LAND.-Under a contract of sale of land, declaring time the essence thereof, and providing that failure to make payment at a stipulated time shall release the seller from obligation to convey, and shall forfeit all right of the buyer to the property, the seller, by failure to tender deed on the day when the last payment falls due, does not lose his right to recover the land because of the non-payment.-HAILE V. SMITH, Cal., 45 Pac. Rep. 972.

96. SALE-Rescission of Contract.-One who had ample opportunity to examine the goods in exchange for which he conveyed land cannot have the deed rescinded because he overvalued the goods.-ADAMS V. PARDUE, Tex., 36 S. W. Rep. 1015.

97. TAXATION - Charitable and Benevolent Institutions.-Institutions where a general education is imparted to all who may apply, whose property has been acquired by gift, and from which no personal gain accrues, are "institutions of purely public charity, institutions of education, not used or employed for gain by any person or corporation, and the income of which is devoted solely to the cause of education," within Const. § 170, and are exempt from taxation, though they are conducted by a particular sect or denomination.-CITY OF LOUISVILLE V. BOARD OF TRUSTEES, Ky., 36 S. W. Rep. 994.

98. TAXATION - Exemptions.-Laws 1893, No. 206, § 9, exempting from taxation so much of "the debts due or to become due as shall equal the amount of bona fide and unconditional debts" by the person owing, does not entitle a tax payer to a reduction on account of an unconditional liability under a lease for future pay. ments of rent for a term continuing into the future.BEECHER V. COMMON COUNCIL OF CITY OF DETROIT, Mich., 68 N. W. Rep. 237.

99. TRIAL-Jurors-Disqualification.-A juror whose deceased wife had been a second cousin of the accused

in a criminal case was not disqualified from serving on the trial thereof unless the deceased wife left issue; and where, on such trial, the State alleged the incompetency of the juror, on the ground that he was related by affinity to the accused, it carried the burden of showing that the former relationship was still subsisting, by proving affirmatively that the deceased wife did in fact leave issue.-MILLER V. STATE, Ga., 25 S. E. Rep. 366.

100. TRUST Resulting Trusts. Where a wife turns over to her husband money received from her father's estate, without any agreement for its investment, the fact that the husband subsequently informs the wife that he has invested it in certain land for her, whereas he had not, but had taken title thereto in himself, is Insufficient to create therein a resulting trust in favor of the wife.-NASHVILLE TRUST CO. V. LANNOM'S HEIRS, Tenn., 36 S. W. Rep. 977.

101. VENDOR AND PURCHASER-Specific Performance. -Where one entitled to a conveyance from another of realty, or an interest therein, upon the payment of a given sum, tendered at the proper time that sum to the latter, which he then refused to accept, and subsequently denied the existence of any contract binding him to convey at all to the person making the tender, such persons could maintain his equitable petition for specific performance; and, if the petition contained an offer to pay the amount which the plaintiff was due to the defendant, or for which he should be held liable, when the amount so due was fixed and ascertained by the decree to be rendered, this was suffi cient without actually producing the money and pay. ing it into court.-KERR v. HAMMOND, Ga., 25 S. E. Rep. 337.

102. WATER COMPANY- Contract Cancellation.-A contract by which a company agrees to construct waterworks and furnish a borough and its inhabitants with an adequate supply of water, all to be taken from springs and certain land, will not be canceled merely because the springs prove inadequate, mistake as to the capacity of the springs having been no more the fault of the company than of the borough.-BOROUGH OF DU BOIS v. DU BOIS CITY WATERWORKS Co., Penn., 35 Atl. Rep. 248.

103. WATER COURSES - Diversion of Water.-Where the volume of water furnished by a stream is barely sufficient to sustain the stock of complainant, a lower proprietor of lands, of defendant, an upper proprietor, and other riparian proprietors along the stream, and to supply proprietors with water for their natural wants and for domestic use, defendant will be enjoined from diverting water from the stream for the purposes of irrigation. MASTENBROOK V. ALGER, Mich., 68 N. W. Rep. 213.

104. WILLS-Construction-Life Estate.-Under the provisions of a will, in terms, "all the rest and residue of my estate, both real and personal, and wherever situated, I give, devise, and bequeath to my said wife, to be used and appropriated by her, as much as she may wish for her happiness, without any restrictions or limitations whatsoever," followed by provisions that after the death of the wife, and the payment of her debts and settlement of her estate, whatever prop erty might remain should pass to a trustee for final distribution as directed, only a life estate vested in the widow of the testator, and hence the subsequent provisions of the residuary clause were valid and operative.-MANSFIELD V. SHELTON, Conn., 35 Atl. Rep. 271. 105. WILLS-Rule in Shelley's Case.-A devise in trust of a beneficial interest for life, subject to the discretion of the trustee, with power in the beneficiary to direct its disposition by will after his death, and in default thereof to his heirs at law, is within the rule in Shelley's Case, and carries an equitable fee in the estate held by the trustee, and entitles the beneficiary to a conveyance of the legal estate, in the absence of any reason why the trust should be retained.-COWING V. DODGE, R. I., 35 Atl. Rep. 309.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 9, 1896.

The Journal of the American Medical Association reports a discussion on expert medical testimony in criminal trials which was had at the annual meeting of the society at Atlanta.

The tone of the debate is a cheering sign that the popular contempt, more or less felt also by attorneys, for hired expert testimony, has penetrated the profession which is the most common offender. All the physicians agreed that discredit had been brought upon their calling and that the time had come when the leaders of the profession must take action in self-defense. It was agreed that the root of the evil lay in the fact that expert witnesses are practically employees of one side or another, and that they come into court so biased, as Lord Campbell said, that hardly any weight can be given to their evidence. Human nature is too strong to resist the temptation of a fat fee, especially when the testimony required is in a case where an error is sure to fall upon the side of mercy. In the discussion a few cases were cited in which the State by a preponderance of money had practically monopolized all the expert testimony of the first class. We are bound to say that these cases are not numerous, but that in a majority of trials the defendant is the beneficiary.

But whether expert testimony errs on one side or the other, whether it tightens the halter upon the neck of an irresponsible lunatic or sets free a cold-blooded murderer, it equally outrages justice. What must be the remedy? A suggestion was made by an eminent alienist that the bill offered by certain medical societies of Chicago which passed the Illinois House of Representatives but which was not acted upon by the senate, furnished an escape from the scandals which attach to almost every criminal trial in which insanity is pleaded. This bill provided that the judges of the circuit and superior courts appoint every year "persons who shall act as expert witnesses in the medical and other sciences in giving opinion upon the evidence as presented, in a hypothetical form, in criminal causes that may be on hearing in the courts presided over by said judges." These witnesses shall

be "entered as expert witnesses," and when expert opinion is required the trial judge may select three of them to give testimony. They shall be subject to cross-examination, "but such cross-examination shall be limited entirely to the subjects embraced in their opinion." This last clause was inserted for the purpose of protecting such witnesses from the lawyer whose sole purpose is to confuse them and turn the minds of the jury against their accuracy. As we understand it, this does not debar the defense from summoning expert witnesses on their own account. But it is a fair assumption that the jury will place its confidence in the official experts rather than the hired medical attorneys.

NOTES OF RECENT DECISIONS.

BANKS SAVINGS BANK DEPOSITS-LOST OR STOLEN PASS-BOOKS.-Nearly all savings banks whether savings banks in the technical sense of the term, or whether they are merely departments of a general banking business, have enacted by-laws which provide that the presentation of the pass-book issued to the depositor shall be a sufficient warrant for any payment entered therein, even though the pass-book may have been stolen or lost.

In a late Michigan case, Ackenhausen v. People's Sav. Bank, 68 N. W. Rep. 118, the court was called upon to construe the effect of the following by-law: "While the officers of this institution will do their utmost to prevent fraud, yet, as they will be unable to identify every depositor, this institution will not be responsible for loss sustained, when a book has been mislaid, stolen or lost, if, before the cashier is notified thereof, such book be paid in whole or in part on being presented." The depositor in this case made a deposit with the bank, and was presented with the customary pass-book, but his attention was in no way called to the by-laws which were printed in the book. The book was subsequently presented to the bank by a stranger, who forged the depositor's name and drew the entire deposit from the bank. The bank was one organized under the general banking laws, and was not a savings bank in the sense of being a "mutual" institution.

The court arrived at the conclusion that a by-law to affect a depositor must be brought to his attention; that the status established between the bank and the depositor by the act of making a deposit was that of debtor and creditor, and that relation could not be changed except by notice brought home to the depositor and assented to by him. The court cited with approval the language in Smith v. Bank, 101 N. Y. 60, 4 N. E. Rep. 123: "Where a savings bank seeks to justify the payment by it of a depositor's money to a stranger upon the ground that such payments were made to a person having possession of the depositor's pass-book, such passbook is not negotiable paper, and its possession constitutes in itself no evidence of a right to draw money thereon. It merely imports a liability of the bank to the depositor for the moneys deposited, and an agreement to pay them at such a time and in such a manner as he shall direct. This contract is implied from the nature and objects of the transaction between the parties. The depositor may by special contract authorize payments to be made in some other manner than by his direction; but, in order to make such payments a protection to the bank, it is necessary for it to show some special agreement with the customer, authorizing such a mode of payment."

AND

SUBTERRANEAN

WATERS SURFACE STREAMS-RIPARIAN OWNERS-INTERFERENCE WITH PERCOLATION.-The case of Tampa Water-works Co. v. Cline, 20 South. Rep. 780, decided by the Supreme Court of Florida, is valuable as an exposition of the law governing surface and subterranean streams and the relative rights of owners of land contiguous thereto. The following is a summary of the points decided in the case, the exhaustive opinion of Mabry, C. J., being too long for publication:

1. The proprietor or owner of land bordering on a surface stream of water flowing in a well-defined channel has, in the absence of any modification of relative rights by contract, legislative grant, or prescription, the right to receive the water of the stream from the proprietor above substantially undiminished in quantity and uncorrupted in quality; and this right exists, not from any supposed grant or prescription, but ex jure naturæ, and as an incident to the soil, and for the reason that surface streams of flowing water are the gift of Providence, for the benefit of all lands through which they flow, and, as such, their usufruct is appurtenant to such lands.

2. The right to the benefit and advantage of the water in surface streams flowing in well-defined channels past one owner's land is subject to the similar rights of all the proprietors on the banks of the stream to a reasonable use and enjoyment of a natural bounty; and it is only for an unauthorized and unreasonable use that one proprietor can have a just cause of complaint against another.

3. The benefit and advantage of surface water flowing in well-defined channels to an adjoining land proprietor extends certainly to the supplying natural wants, including the use of the water for domestic purposes of home and farm, such as drinking, washing, cooking, or for stock; and a reasonable use of the water for such purposes may be made.

4. The owner of land through which subsurface water, without any distinct, definite, and known channel, percolates or filters through the soil to that of an adjoining owner, is not prohibited from digging into his own soil, and appropriating water found there to any legitimate purposes of his own, though, by so doing, the water may be entirely diverted from the land to which it would otherwise naturally have passed; but, if subterranean water has assumed the proportions of a stream flowing in a well-defined channel, the owner of the land through which it flows will not be authorized to divert it, pollute it, or improperly use it, any more than if the stream ran upon the surface in a well-defined course.

5. The only difference in the application of the law to surface and subsurface streams is in ascertaining the character of the stream. If it does not appear that the waters which come to the surface are supplied by a definite flowing stream, they will be presumed to be formed by the ordinary percolations of water in the soil; such presumption being necessary on account of the difficulty in determining whether the water flows in a channel beneath the soil.

6. A stream or water course consists of bed, banks, and water; and, to maintain the right to a water course, it must be made to appear that the water usually flows in a certain direction, and by regular channel, with banks or sides, and having a substantial existence; but it need not be shown that the water flows continually, as it may be dry at times.

7. The fact that a corporation was chartered for the purpose of supplying a certain city and its inhabitants with water, and is under a contract with the city to supply it and the people therein with water, does not give the corporation any additional right to use or appropriate the water in a well-defined stream flowing over or through lands of different landowners.

CONSTITUTIONAL LAW RIGHT TO BEAR ARMS-PARADE WITH FIREARMS.-The case of Commonwealth v. Murphy, decided by the Supreme Judicial Court of Massachusetts, presents an interesting question of constitutional law. It was there held that a statute prohibiting parading by unauthorized bodies of men is not repugnant to the constitutional law of Massachusetts. It appeared that defendant with others, forming a company in a parade, carried ordinary breech-loading Springfield rifles, which had been rendered useless by boring holes in the barrels and by filing down the firing pin, so that the rifles

could not be used to discharge any missile by means of gunpowder or other explosive. It was held that the rifles, being to an ordinary observer efficient, were "firearms,' ,"within the meaning of Massachusetts Laws, 1893, chapter 367, section 124, forbidding parading by unauthorized bodies of men with firearms. The court said:

The defendant is complained of for belonging to and parading with a certain unauthorized body of men with arms, which said body of men had associ ated themselves together as a company and organization for drill and parade with firearms, in violation of St. 1893, ch. 367, Sec. 124. He contends that this statute is in contravention of the seventeenth article of the declaration of rights, which declares that "the people have a right to keep and bear arms for the common defense." This view cannot be supported. The right to keep and bear arms for the common defense does not include the right to associate together as a military organization, or to drill and parade with arms in cities and towns, unless authorized so to do by law. This is a matter affecting the public security, quiet and good order, and it is within the police powers of the legislature to regulate the bearing of arms, 80 as to forbid such unau

thorized drills and parades. Presser v. State of Illinois, 116 U. S. 252, 264, 265, 6 Sup. Ct. Rep. 580; Dunne v. People, 94 Ill. 120. The protection of a similar constitutional provision has often been sought by persons charged with carrying concealed weapons, and it has been almost universally held that the legis lature may regulate and limit the mode of carrying arms. Andrews v. State, 3 Heisk. 165; Aymette v. State, 2 Humph. 134. Wilson v. State, 33 Ark. 557; Haile v. State, 38 Ark. 564; English v. State, 35 Tex. 473; State v. Reid, 1 Ala. 612; State v. Wilforth, 74 Mo. 528; State v. Mitchell, 3 Blackf. 229; Bish. St. Crimes, Sec. 793. The early decision to the contrary, of Bliss v. Com., 2 Litt. Ky. 90, has not been generally approved..

The defendant further contends that this statute, which mentions certain military bodies as exempt from its operation, is class legislation, which grants exclusive privileges to certain classes of citizens which are denied to the body of the people. It is not contended that the troops of the United States or the regularly organized militia of the commonwealth should be forbidden to drill and parade; but the argument is that the legislature has no power to single out other independent organizations, and give to them peculiar rights which it denies to others. But, in regulating drills and public parades, it is for the legislature to determine how far to go. No independent military company has a constitutional right to parade with arms in our cities and towns, and the granting of this privilege to certain enumerated or ganizations does not carry with it the same privilege to all others. It is within the power of the legislature to determine, in reference to such independent organizations which of them may, and which of them may not, associate together and organize for drill and parade with firearms. No decision has been cited to us which intimates the contrary. The granting to certain persons of special privileges of this kind, which do not interfere with the rights of others, is not open to objection on constitutional grounds.

It appeared in evidence that the defendant, with ten or twelve other men, formed one company in the

parade, and that all the men in this company carried ordinary breech-loading Springfield rifles, which had been altered and bored in the barrel near the breech, and the firing pins had also been filed down, so as to make them immovable; and in this condition they could not discharge a missile by means of gunpowder or any other explosive. The defendant contends that these weapons were not "firearms," within the meaning of the statute. The purpose for which these alterations were made is not disclosed. They would not be obvious to the ordinary observer, while the rifles were carried in the parade. So far as appearance went, it was a parade with firearms which were efficient for use. To the public eye, it was a parade in direct violation of the statute. The men who carried these weapons could not actually fire them, but it would be generally supposed that they could. With the exception of the danger of being actually shot down, all the evils which the statute was intended to remedy still existed in the parade in which the defendant took part. To hold that such a weapon is not a "firearm" within the meaning of the statute, would be to give too narrow and strict a construction to its words. It was originally a firearm which was effective for use. The fact that it was disabled for use did not change its name. It was for the court to determine whether the statute included the weapon which was produced and exhibited at the trial, and his instruction to the jury that it was a "firearm" within the meaning of the statute was right. Williams v. State, 61 Ga. 417; Atwood v. State, 53 Ala. 508; Bish. St. Crimes, § 791.

CRIMINAL LAW FORMER JEOPARDYWAIVER OF PLEA.-The Supreme Court of California decides, in People v. Bennett, 45 Pac. Rep. 1013, that under Const. Art. 1, § 13, declaring that "no one shall be twice put in jeopardy for the same offense," and Pen. Code, § 687, providing that "no person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted" one tried without a plea of former jeopardy cannot for the first time raise the question of former acquittal on motion for new trial, though both trials were in the same court and before the same judge. The court says:

Our constitution provides that "no person shall be twice put in jeopardy for the same offense" (article 1, § 13); and the Penal Code contains the following provision (section 687): "No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted." May the defendant for the first time raise the question of once in jeopardy upon his motion for a new trial? The practice here followed is certainly a novel one, and, if justified by the law, such declaration, in effect, will be a nullification of all those sections of the Penal Code providing for special pleas; for if a defendant charged with crime may be allowed to take the chances of an adverse verdict after trial upon a plea of not guilty, and, having lost, may then for the first time upon his motion for a new trial set up a previous acquittal or conviction, or once in jeopardy, every defendant will follow that course, and