Wife's Separate Estate Charged by Executing Note.-John Meyers v. Adaline H. Van Wagoner et al. In this case Mrs. Van Wagoner, a married woman, executed to the plaintiff her promissory note in lieu of a note which the plaintiff held against her son by a former marriage, who was insolvent. She at the same time took up and destroyed her son's note. This note, thus given by Mrs. Van Wagoner, was renewed by her by giving a second note, she thus procuring an extension of time. In these transactions nothing was said about charging her separate estate. The second note having been dishonored, suit was brought upon the same. Mrs. Van Wagoner pleaded want of consideration, and on the trial testified that in these transactions she had no intention of charging her separate estate. But the court hold: 1. That the note is supported by a good consideration. 2. That by executing her promissory note, the law implies that she intended to charge her separate estate; otherwise the doing of it would be entirely nugatory. The court cite Metropolitan Bank v. Taylor, 53 Mo. Judgment for the plaintiff is affirmed. ADAMS, J., delivered the opinion. SHERWOOD, J., absent. The other judges concurring. Hons. DAVID WAGNER, WASH. ADAMS, H. M. VORIES, T. A. SHERWOOD, E. B. EWING, and W. B. NAPTON, Judges. In size and appearance this volume does not differ from its predecessors. The editorial and mechanical work are very fairly done-certainly as well donc as the meagre compensation allowed by the state will admit of. We note the following cases of interest: Bills and Notes- Conditional Acceptance.-The acceptance of an order for money stated therein to be against sums due on a pending contract, is a conditional acceptance, and a subsequent breach of the contract by the drawer may be a good defence to a suit on such acceptance. Crowell v. Plant, 145. Liability of Surety who Signs with Particular Agreement as to Co-surety.-Where one becomes surety on a non-negotiable promissory note on the express condition that another shall be procured as co-surety, and the latter fails to sign, the surety will not be liable, although the note is in the hands of a holder having no notice of the agreement. As to the surety, while the condition remains unperformed, the instrument is merely an escrow and there is no delivery. Ayres v. Milroy, 516. Agreement to Obtain Co-surety-Maker Agent of Surety.-Although a surety upon a note is induced to sign upon the promise of the maker that a co-surety shall be joined, yet if nothing on the face of the paper imparts notice to the holder, or puts him on enquiry as to such agreement, no fault attaches to the latter, and the surety must run the risk of the fraud of his own agent. Per NAPTON, J.; SHERWOOD, J., concurring. Id. Open and Notorious Adultery-The Missouri Statute Expounded.-State v. John D. Crowner and Nettie Gordon. The defendants were indicted under the Missouri statute for open and notorious adultery. The Missouri statute is as follows: "Every person who shall live in a state of open and notorious adultery, and every man or woman, one or both of whom are married and not to each other, who shall lewdly and lasciviously abide and cohabit with each other, and every person married or unmarried, who shall be guilty of open, Notice to Endorser - Due Diligence, what is. - A nogross lewdness or lascivious behavior, or of any open and notorious act of pub tary public not knowing the residence of an endorser, on the day of protest lic indecency, grossly scandalous, shall, on conviction, be adjudged guilty of made enquiry at the bank in St. Louis, where the note was payable, and at a misdemeanor," etc. The indictment pursued the statute. The proof was the place of business of another endorser, and examined the city directory to that the defendant, Crowner, a married man, and the defendant, Nettie Gor- j ascertain the residence, but without success. He thereupon placed the notice don, a single woman, took a private room in St. Louis, paid a month's rent in in the city post-office. The evidence showed that other endorsers could have advance, and lived there for three days, apparently as man and wife, the man given the desired information, and that one of them lived in East St Louis, being away part of the time. The trial was before the court, a jury being immediately across the river. Held, that it was the duty of the notary to enwaived. The defendants asked, among others, the following declaration of quire at least of all the parties to the note, if accessible, and that he might have prosecuted his enquiries for that purpose for several days; that there was no search made such as the law requires, and that putting the notice in the post-office, under the circumstances, amounted to nothing. Gilchrist v. Don law: "That if the court, sitting as a jury, shall find from the evidence that the defendants were not living together in a state of open and notorious adul tery, but were simply, at the time charged in the information, stopping together in the same room occasionally, and were only guilty of occasional acts of illicit intercourse, then the court should find the defendants not guilty." This declaration the court below refused, and this refusal is here assigned as error. J. G. Lodge, for the appellants, cited and argued from the cases quoted by the court, infra. 7. C. Normile, prosecuting attorney, contra. nell, 591. Residence-Presumption as to Service of Notice Must be Made, How.-There is no presumption that an endorser resides in the town or city where the bill or note is made payable. If such be the fact, notice cannot be served by depositing it in the post-office, but the service must be personal, or by leaving it at the usual place of business of the endorser, or with his family at his domicile. Id. Criminal Law-Association with Thieves.-An individual may as business of the legislature to keep guard over individual morality; but if such person so associate with a design to aid, abet or promote, or in any way ass.st the parties charged with, or suspected of, being thieves, prohibitory legislation may be applied, not to correct the evil consequences which such associat n may bring on the individual, but to protect society from actual or anticipat d breaches of law. City of St. Louis v. Fitz, 582. The court hold that the refusal of the declaration of law above set forth was error, and also that under the facts proved the conviction cannot be sustained. The court say: "The statute contemplates three different classes of offences. The first, and the one for which the defendants in this case are prosecuted, applies only to persons who live in a state of open and notorious adul-sociate with thieves, &c., without being guilty of any offence, for it is not the tery, and the offence under that clause of the statute can only be committed by a married person. The second class of offences can only be committed by a man or woman, one or both of whom are married and not to each other, and who shall lewdly and laciviously abide and cohabit with each other, etc. The third class of offences provided for may be committed by any person, either married or unmarried. The defendants in this case are charged with living in | a state of open and notorious adultery. The offence consists of an open and St. Louis Ordinance.-The ordinance of the city of notorious living or cohabitating together. Occasional illicit intercourse will St. Louis (City Ord. chap. 20, art. 4, 2 I), prohibiting the "knowingly asso not constitute the offence. The statute was intended to provide against per-ciating with persons having the reputation of being thieves and prostitutes," sons who, in defiance of morality and the good or well being of society, should is void, as invading the right of personal liberty. Per SHERWOOD, J., conopenly live together. They must reside together publicly in the face of soci- curring. Id. ety, as if the conjugal relation existed between them. Their illicit intercourse must be habitual. (Wright v. State, 5 Blackf. 358; Seares v. People, 13 Ill 597; State v. Gartrell, 14 Ind. 380; Dameron v. State, 8 Mo. 494.) I would not be understood to say that the cohabiting and abiding together must be for any great length of time. Perhaps a short time would do But the parties must live together in an open and notorious manner, to the evil example ofso ciety. Simply having occasional illicit intercourse, without a public or no orious living together, as the evidence in this case tends to prove, is certainly not sufficient." Judgment reversei; VORIES, J., delivering the opinion. SHERWOOD, J., absent. The other judges concurring. Recent Reports. MISSOURI REPORTS, VOL. 53. Reports of Cases Argued and Adjudged in the Supreme Court of Missouri. By TRUMAN A. POST, Reporter. Vol. 53. Embracing part of the June term, 1873, at Jefferson City, and part of the October term, 1873, at St. Louis. St. Louis : W. J. Gilbert. 1874 Price $4. Evidence-Surgical Examination at the Trial.-The proposal of counsel in a damage suit, to have surgeons called in during the progress the trial to examine plaintiff as to the extent of his injuries, is unknown to the law, and the court has no power to enforce such an order. Loyd v. H. & St. Jo. R. R. Co., 509. Female Suffrage-Fourteenth Amendment.-There is no cont between the constitution of the state and the registration laws restricting the right of voting to male citizens, and the fourteenth amendment to the consti tution of the United States. Minor v. Happersett, 58. Husband and Wife-Married Women as Witnesses-Missouri Statute.-Section 5 of the statute concerning witnesses › W. S. 1373), ho'ding married women incompetent to testify as to admissions and conversatios of their husbands, was intended to apply to all cases, whether the husband was a party or not. Moore v. Wingate, 398. Municipal Corporations-Special Taxes-Streets-Re-pavingAssessment of Benefits.-The power to grade and improve streets is ` legislative power, and is a continuing one unless there is some special restraint imposed in the charter of the corporation. It may be exercised from time to time as the wants of the municipal corporation may require, and of the necessity or expediency of its exercise the governing body of the corporation, and not the courts, is the jndge; and it follows that the power to compel the property-owners to pave generally, extends to compelling them to re-pave when required by the municipal authorities. If the first paving of a street is a special benefit to the front proprietor, justifying the imposition on him of a portion of the expense, so the removal of an insufficient pavement and the making of a new and sufficient one in its stead, is a matter of special benefit to the front proprietor, although it may be also of general utility. McCormack v. Patchin, 33. Improvement of Streets-Personal Judgments.-Personal judgments against the owner of property in a city, on account of assessments for improvements of streets, &c., are null and void, and statutes authorizing such judgments are unconstitutional and void. City of St. Louis v. Clemens, 36 Mo. 467, and Id. 49 Mo. 552, overruled. City of St. Louis to Use, etc., v. Allen, 44. Judgments-Interest-- Assessments for Street Improvements in City of St. Louis.-The 15 per cent, interest in suits on assessmonts for street improvements should be allowed to the time of the verdict, but the judgment rendered thereon should bear six per cent. interest. Id. Liability for Losses by Fires.-A grant by the legislature to a city of power to establish a fire department, confers a legislative or discretionary power, and does not render the city liable, if the power is exercised, for losses occurring through fires. Heller v. The Mayor, &c., of Sedalia, 159. Liability for Damages in Changing Grade of Streets.A city is not liable for the damages which may accrue to a property-owner merely from a change in the grade of the streets. Schattner v. The City of Kansas, 162. pleasure, and who are not either expressly invited to enter, or induced to come upon them by the use for which the premises are appropriated and occupied, or by some preparatory adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter. Straub v. Soderer, 38. Liability of Municipal Corporations for Damages caused by Defective Streets.-Municipal corporations are bound to keep their streets in a reasonably safe condition. Failing to do so, they will be liable for all injuries resulting from their negligence. Bassett v. City of St. Joseph, 290. Excavations Bordering on Streets.-The liability of municipalities for damages caused by excavations is not restricted to cases where they actually extend into the street; if travel is thereby rendered dangerous the authorities are equally bound to protect the public, whether they encroach on the highway or not. And the city is bound for damages resulting from neglect of proper precautions, even though the excavations were not made by its own agents, provided it had received due notice of the existing facts. Id. In a suit against a city to recover damages for injuries caused by plaintiff's falling into an excavation adjacent to a market place, where it appeared that the authorities were notified of the dangerous condition of the thoroughfare, and took no steps to guard the public from accident, and the evidence showed that plaintiff, at the time of the casualty, was exercising ordinary care and prudence, plaintiff would be entitled to recover, although it further appeared that the primary cause contributing to the injury was the attempt of a mule to kick plaintiff, and that in avoiding this peril, i e fell or jumped into the excavation. Id. Allegations-Aider by Verdict.-In a suit against a municipal corporation for damages caused by plaintiff's falling into a cellar adjacent to a public street, where the petition charged that the Charter of Kansas City.-The charter of the city excavation was unlawfully permitted to extend into the street, but the evi of Kansas required the city council, as soon as practicable, to establish the grades of all the streets in the city, to prepare and exhibit to public view a map there of, and thereafter only to change such grade after due public notice, etc. Held, that the city could not be held liable in damages at the suit of a private party for not obeying this provision of its charter. Id. Railway Law-Refusal of Passenger to Surrender Ticket.-A passenger on a railroad train, who exhibits his ticket and demands a seat, need not surrender the ticket till the seat is furnished. Davis v. K. C., St. Joe and Council Bluffs R. R. Co., 317. Damage, for Expelling Passenger-Failure to Furnish Seat, etc.-A. buys a ticket from Winthrop to Bigelow on the K. C. and St. J. R. R. The cars are crowded. He refused to surrender his ticket till provided with a seat, and is ordered to leave the train when it shall arrive at Forest City. At this point he procures a seat, and subsequently tenders his fare from thence to Bigelow; but refuses to pay fare from Winthrop or to give up his ticket. Thereupon the conductor declines the amount offered, a d not receiving his ticket, ejects him from the train. In an action for damages by A., based on the original contract for transportation entered into at Winthrop, held, that under the contract, A. would not be entitled to ride from Forest City to Bigelow without surrendering his ticket, or tendering his full fare from Winthrop, and could not maintain his action; although the case might be different where plaintiff set up a new contract entered into at Forest City, and based his action thereon. Id. Township Law of Missouri.-The act of March 24, 1873, was not designed to interrupt the continuity of the act of March 24, 1872, so as to avoid or annul proceedings under it. The act of 1873 must be construed as a continuation of the act of 1872, both relating to the organization of counties into municipal corporations, the former being designed to correct supposed defects in the latter. State v. County Court Vernon County, 128. Negligence-Liability of Owners of Real Property.-The owne or occupant of real property is bound, so far as he may be able to do so by the exercise of ordinary care, to keep it in such condition that it will not, by any insufficiency for the purpose to which it is put, injure any passer-by; and he is bound also to use care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, expressed or implied, for the transaction of business. But he is not bound to make the land or buildings thereon sale for any purpose which is unlawful or improper, or for which he could not reasonably anticipate that they would be used, or for which they obviously were never designed. A mere passive acquiescence on the part of the owner or occupant in the use of real property by others, does not involve him in any liability to them for its unfitness for such use. No duty is imposed upon the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or dence showed that it was not unlawful per se, but became unlawful only in event that it was unlawfully permitted to remain without protection; held, that the petition was good after verdict,. notwithstanding such variance. Id. Liability of Railway Companies for Damages from Fire Kindled by Locomotive.-Where grass is set burning by fire escaping from a locomotive, and the owner súes the company, negligence on the part of defendant will be presumed from the escape of the fire, and it devolves upon it, in order to rebut this presumption, to show that proper and safe locomotives and engines were used, and were conducted by the servants of the company in a proper and safe way. In such case the damages claimed would not be held too remote or speculative, although the property consumed was separ. ted from the track by a strip of ground forty or fifty yards wide where the plat was covered with dry grass and other combustible matter. Clemens v. H. and St. J. R. R. Co., 366. Liability of Railway Company for Damages Sustained by Passenger from Jumping from Train while in Motion.- In a suit against a railroad company to recover damages for injuries sustained by plaintiff in getting from the platform of the car upon that of the depot, the evidence showed that the train stopped at the station only a minute; that during that time plaintiff's little child alighted; that plaintiff followed without delay, but after the train was in motion, and received her injuries in consequence of jumping from the train. Held, that the plaintiff would not be barred of recovery by the fact that she jumped from the train while in motion. Id. Book Notices. AMERICAN CORPORATION CASES. Edited by THOMAS F. WITHROW, late Reporter of the Supreme Court of Iowa. Vol. 2. Municipal Corporations. Chicago: E. B. Myers. 1874. The design of this series is to embrace the decisions of the Supreme and Circuit Courts of the United States, and the courts of last resort in the several states since January 1, 1868, of questions peculiar to the law of corporations. The ability with which this volume, as well as the previous one relating to Private Corporations, is edited, admits of no question. Mr. Withrow commenced his professional life as the Reporter of the Supreme Court of Iowa, and as such justly acquired distinction. We do not know of any reporter who surpassed him in the excellence of his work. His power to make a condensed and clear statement of a case, and to put in fewest words the exact point in judgment, is a marked characteristic and results from the logical cast of his mind. The volume before us exemplifies the truth of these observations. Though only of the usual size, it contains about twice as many cases as are ordinarily embraced in a single volume. Mr. Withrow has given much study to corporation law, and is actively engaged in an extensive practice having almost exclusive reference to it, and this adds to his other qualifications to edit acceptably a series of Reports of this character. While we give merited praise to the manner in which his plan is carried out, we nevertheless take the liberty to suggest the wisdom, if not the necessity, of a modification of the plan itself. If the learned editor would hereafter give only the leading cases, or those of general interest, in full, and the rest, if given at all, in a brief and condensed shape, the profession would get in the same space several times as much really valuable matter as at present. We are aware of the objections to which the plan suggested is open, but we think they would soon vanish if Mr. Withrow should demonstrate how possible it is to give the substance of a decision turning on the construction of a statute in the average compass of one or two pages. He would set out the statute, give the point decided, and in a few lines the arguments advanced by the judge in support of the conclusion. The volume before us contains cases for the year 1868, and is published in excellent style. Bal THE BENCH And Bar ReviEW. January, 1874. Vol. I. No. I. timore: ATKINSON SCHAUMBURG. Terms, $5 per annum. We have before us the first number of this new legal quarterly, containing 200 pages. It is under the editorial management of Atkinson Schaumburg, Esq., of Baltimore. In its general character it is like the American Law Review and the Southern Law Review, a leading feature being essays upon legal topics, and an abstract of recent decisions of the higher courts in Great Britain, and of the federal and state courts of this country. This number contains a portrait of Caleb Cushing and an outline of his life and public and professional career, which we would have been glad to have seen filled up and rounded into more complete proportions. This number is, on the whole, a very excellent one, and the magazine will, in our opinion, prove a valuable addition to our periodical legal literature. We cannot but regard the name selected for it as unfortunate and liable to lead to confusion, since there has been in existence for some years a quarterly publication in Chicago by Callaghan & Co., entitled the "Bench and Bar." One or the other of our contemporaries should be re-christened. As the Chicago magazine has the older and therefore better right to its name, it would seem that the other journal would secure a distinctive name by here. after calling itself the Baltimore Law Review. Legal News and Notes. -MR. MCCRARY'S bill to regulate inter-state commerce has passed the house of representatives, after a hard contest, by a majority of five. The main feature of this bill is that it provides for the appointment of a board of nine commissioners, who have power to regulate the maximum charges on inter-state railways for the carriage of freight and passengers. It is very doubtful whether it will pass the senate. -THE Missouri legislature has passed what is known as the female virtue bill." It makes seduction, under promise of marriage, a felony. We have not seen a text of this act. It is to be hoped it interposes some checks upon the conviction of persons accused of this crime on the testimony of the prosecutrix alone. The value of such evidence and the danger to which men, not more guilty than the injured female, may be subjected to in prosecutions for offences of this kind, are strongly illustrated by the case of State v. Burgdorf, 53 Mo. 65. -THE house committee on the codification of the laws, treaties, etc., of the United States, of which Mr. Poland, of Vermont, is chairman, has about completed the arduous duty assigned to it of revising these laws. This committee has held regular evening sessions, and its chairman especially has always attended these and worked most assiduously. He has been greatly aided, too, by such members of the committee as Judge HOAR. The comprehensive code of United States laws will all be contained in a single volume of general laws, the treaties and other old matters having a separate volume devoted to them. —IN Chicago a case has recently been tried involving the following point: A man who had over one thousand dollars stolen from him while travelling in one of the Pullman Company's sleeping cars, sued that company, and pressed his demand on the ground that they were liable both as carriers and hotel-keepers. The company contended that inasmuch as they did not receive pay for carrying passengers, but only for furnishing them with beds, they were not common carriers, and were not to be regarded in any sense as a "railway company." Furthermore, they insisted that they were not hotel-keepers, inasmuch as they supplied passengers with lodg ing only, and not with board. The plaintiff gained a verdict, though for only part of what he claimed, and the case has been taken to the supreme court. rant. -THE Social evil law, just passed the Missouri legislature, prohibits the enforced examination and surveillance of prostitutes, but requires physicians to report to the board of health any venereally-diseased women they may prescribe for, whom they have reason to suspect to be prostitutes. As there is no penalty affixed to this requirement, no physician will make such reports, as it will injure his practice in such cases. It prohibits the police, under heavy penalties, from entering houses of prostitution without a warIt provides for the maintenance of the Social Evil Hospital and House of Industry, at the public expense, instead of at the expense of the class of women who are benefited by it, as heretofore, and provides that diseased prostitutes may voluntarily go there, and that those who are cer tified to be diseased, by physicans, may be confined there at the discretion of the board of health. In short, this law most effectually removes this class of persons from public surveillance. Every house of prostitution may be turned into a gambling den, and the police are powerless to break it up. In fact, the police being prohibited from entering such houses, unless armed with a warrant, cannot in many cases know where they are. Relieved from police surveillance and board of health regulation," the whole business of restraining and suppressing prostitution is left to the voluntary action of citizens in swearing out warrants against this class of persons. Take it as a whole, this is a most remarkable law. Its penalties are all against the police officials; its immunities and benefits are almost entirely in favor of the prostitutes, while the expense involved by the iniquity which it shields, is borne by the general public. -Look to your statute books. We mean this word of advice to our Missouri subscribers. The legislature just adjourned passed a large number of acts amending various chapters of the general statutes. Among the acts passed we note amendments to the general statutes by chapter and section as follows: Ch. 5, & 15; ch. 32, 8% 25, 26; ch. 36, § 7; ch. 63; ch. 63, & 39; ch. 70, § 1; ch. 80; ch. 143, & 51; ch. 169, ? 6. We also notice amendments to chapters of the general statutes which relate to the following subjects: Administrators; Corporations, religious and benevolent; Constables; County Treasurers; Deaf and Dumb; Dower; Dramshop Keepers; Drawing of Warrants; Education of Blind; Elections; Foreign Insurance Companies; Guardians and Curators; Inspection of Liquors; Members of General Assembly; Penitentiary; Rev enue; Treasury Department; Trustees. We also notice acts relating to the following subjects: The Practice of Pharmacy; authorizing Cities, Towns, etc., to organize for School Purposes; Fees of Witnesses and Jurors in St. Louis county; for the better protection of Rights of Minority Stockholders in Railroad Companies; to quiet Land Titles in Certain Cases; to provide for the Transcribing of Records from one county to another; Concerning Graduates of Law Department of Saint Louis University; to abolish Board of Guardians; to provide for the taking of Recognizances in certain cases; relating to Roads and Highways; relating to Juries in St. Louis county; concerning Bribery at Elections; prohibiting Railroads from charging over four cents per mile fare; Pay of Members of General Assembly; Appointment of Probate Clerks; relating to Conveyance of Personal Property; to Coroners' Inquests; Dramshop-keepers; Insurance Companies other than Life; Fees of Auction Sales under securities for Debt; to compel Clerks, Sheriffs, etc., to keep account of and pay over witnesses' fees; to prevent nonresidents from grazing or herding cattle upon certain lands; for relief of Collectors of Revenue; to reorganize and provide for support of Public Schools; to prevent destruction of fish; to punish the carrying of concealed weapons; restricting the liabilities of counties, cities, towns, etc., in matters of contract; regulating the Practice of Medicine and Surgery; to destroy Gophers; to punish abuses of public trust; cost of assessing in counties having township organization prior to election in 1872; method of assessing tax on consolidated bridge companies; management of local Insurance Companies; False Receipts and Bills of Lading and Fraudulent transfers by Warehousemen; Ditches and Drains of Railroads; to regulate Traffic in Dead Animals; to regulate costs in Criminal Cases; Summoning jurors in Courts of Record; to promote the Science of Medicine and Surgery; amending Township Organization Law. Hon. JOHN F. DILLON, Editor. S. D. THOMPSON, Ass't Editor. } ST. LOUIS, THURSDAY, APRIL 9, 1874. SUBSCRIPTION: $3 PER ANNUM, in Advance ance Effect of War upon the Contract of Life Insur-wisely prohibited future legislative exemptions from taxation, Decision by the Supreme Court of the prevented the Iron Mountain company from being perpetually United States. exempt from taxation. Other companies in the state claiming a similar exemption have taken a deep interest in the Iron Mountain case, for which reason, as well as for the public interest in the controversy, we publish at this early day the full text of the opinion of the Supreme Court. We had occasion some time since, in a note to Smith v. Charter Oak Life Ins. Co. (ante, pp. 79 et seq.), to go over the cases on this subject pretty thoroughly. Among the cases mentioned in that note were two in which the question had been determined in federal courts of first instance, namely, Hamilton v. New York Mutual Life Ins. Co., 9 Blatchford, 234, in which it was held by BLATCHFORD, J., in the United States District Court at New York City, that the war merely suspends but does not invalidate such contracts, and Tait v. New York Life Ins. Co., determined by Judge EMMONS in the United States Circuit Court at Memphis, Tennessee, in which the contrary principle is asserted. These two cases were taken to the Supreme Court of the United States, where the questions involved in them have recently been argued at great length; and the result is, that both decisions are affirmed by a divided court. Thus, the anomalous result is produced of affirming two decisions substantially the same in their facts, and precisely opposite in their conclusions upon those facts. What is right before Judge BI ATCHFORD is wrong! before Judge EMMONS, and vice versa; while the life insurance companies and their Southern policy-holders are left in the same state of perplexity as before. It is thought, however, that a way out of this wilderness may be found in the fact that the Chief Justice did not sit in these cases, and that a re-hearing will be granted in which he will take part, when his views will be decisive of the question. Railway Negligence-Killing Child of Tender Years In Philadelphia and Reading Railroad Company v. Long (Legal Chronicle; s. C., 4 Pittsburgh Law Jour. N. S. 122), determined in the Supreme Court of Pennsylvania, Feb. 24th, a child two years and two months old ran upon the defendant's track, where it passes through the populous town of Manayunk, and was killed by a train which was running at the rate of eight miles an hour. The court below, among other things, instructed the jury that "the fact that the child is found in the streets affords a strong presumption of negligence on the part of the plaintiffs. You will therefore consider whether the mother took reasonable care of the child; if she did not, it was negligence." Commenting upon this instruction, AGNEW, Ch. J., said: "To suffer a child to wander on the street has the sense of permit. If such permission or sufferance exists, it is negligence. This is the assertion of a principle. But whether the mother did suffer the child to wander is a matter of fact, and is the subject of evidence, and this must depend upon the care she took of her child. Such care must be reasonable care, Iron Mountain Railroad Tax Case-Exemption from dependent on the circumstances. This is a fact for the jury. Taxation by Legislative Contract. We publish in this number the opinion of the Supreme Court of the United States, delivered by Mr. Justice FIELD, in the Iron Mountain Railroad tax case. It is a case of great interest and importance to the state of Missouri. The Iron Mountain company asserted a perpetual exemption from taxation by virtue of an irrepealable legislative contract granting this immunity to the prior company by that name, to whose rights the present company claimed to have succeeded. It will be observed that the court decide that the first company did possess the exemption. It will also be observed that the court say that the legislature, in 1867, undertook to transfer this exemption or immunity to the present company as an unextinguished or unmerged franchise. But the court hold that the exemption from taxation in favor of the original company ceased when the state foreclosed its lien, under the act of 1866, and purchased the property. Mr. Justice FIELD puts the point clearly. He says: "When the state became the purchaser the immunity ceased; the property stood in its hands precisely the same as any other unencumbered property of the state, exempt from taxation, not by virtue of any previous stipulation with the company, but as all property of the state is thus exempt." Under the view of the Supreme Court, nothing but the provision of the new constitution of 1865 (art. 11, sec. 16), which If she did not exercise this care she was negligent. What more than this can be demanded of her? When a railroad runs through a populous city has the company a right to exact a harder measure, and are we to say, as a matter of law, that the citizens are to be imprisoned in their houses, or their children caged like birds, otherwise it is negligence? Is it negligence for the poor who congregate these crowded streets, unless, even in the summer's heat, they live shut up in the noisome vapors of their closed tenements, without a breath of healthy air? Is this the life they must lead, or be adjudged to be negligent? This mother gave her child a piece of bread to satisfy it, closed the kitchen door to keep it in, and went to the next room to scrub the oil-cloth on the floor, and before her labor was finished, and in less than five minutes, the mangled body of her little one was brought in and laid before her. We have no reason to believe that her love for her child was less than that of the more favored of her sex, having servants at their beck. Because the child managed to lift the latch and momentarily disappeared, are we to say that this was negligence per se, and that she suffered her child to wander into the street? What sort of justice is that which tells the mother agonizing over her dying child, Your negligence caused this. You suffered your child to run into the jaws of death; we can not perceive any fault in the railroad company; a speed of eight miles an hour along this populous thoroughfare was all ruling, that we felt obliged to couch our dissent in clear language, and not to overwhelm the subject with doubts and conjectures such as serve only to perplex and task the patience of the reader. right.' We can endorse no such cruel doctrine; but we must upon this question and gives extraordinary reasons for such say, as was said in Kay v. Railroad Co., that the doctrine which imputes negligence to a parent in such a case is repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil. 15 P. F. Smith, 276." 372. This case is but one of several which have been before the Supreme Court of Pennsylvania, involving the same question: Kay v. Penn. R. R. Co., 65 Penn. State, 269; Smith v. O'Connor, 48 Penn. State, 218; Philadelphia and Reading R. R. Co. v. Spearen, 47 Penn. State, 300; Rauch v. Lloyd, 31 Penn. State, 358; Pennsylvania R. R. Co. v. Kelly, ibid, The subject is fruitful of nice distinctions, and the decisions, whether in this country or in England, are by no means uniform. In Ihl v. The Railway Co., 47 N. Y. 317, it was held that sending a child a little more than three years old across the track of a street railroad, attended only by another child nine and one-half years old, was not necessarily such negligence on the part of the parents as would defeat a recovery in an action brought by the child's administrator against the railroad company for damages for causing its death by negligently running over it while crossing the track. The court say (RAPALLO, J.) that all the cases in which the negligence of parents or custodians of infants not sui juris, is held to preclude a recovery by such infants or their representatives, necessarily assume that the conduct of the infant was such as would, in the case of a person sui juris, have amounted to contributory negligence, and hold that the negligence of the parent or the custodiant, but not the personal conduct of the infant, constitutes the bar. The law in such cases makes the infant responsible through others. (Hartfield v. Roper, 21 Wend. 615, 619.) The conduct of the infant may have an important bearing on the question of the defendant's negligence; but when the latter is clearly negligent, contributory personal negligence on the part of an infant obviously not sui juris can not be alleged, unless negligence on the part of his guardian or custodian has brought about the situation, or in some manner contributed to the injury. (Mangam v. Brooklyn Railroad Co., 38 N. Y. 460, 461.) Law of Homicide-Character of the Slain for Violence. We cheerfully give place in another column to a communication from Thomas G. Jones, Esq., Reporter of the Supreme Court of Alabama, in which he criticises an article which appeared in this journal for January 15th, wherein we took occasion to examine the case of Fields v. The State, 47 Ala. 603. We do this the more readily when we consider that our article was a criticism upon the performance of a judge, who from the nature of his position is himself precluded from making a reply. For this reason we recognize the rule that when a writer in a legal or other publication feels called upon to criticise an adjudicated case, he should proceed with great caution and candor. We may therefore be permitted to say, in vindication of our own good faith in making that criticism, that it was not written until we had thoroughly studied every case which it is believed the American books contain upon the subject of the admission of evidence of the character of the deceased in trials for homicide. This examination of cases convinced us so clearly that Fields' case embodies an extraordinary ruling cases. The juncture of circumstances which warrants the admission of such evidence in trials for homicide has nowhere been more clearly defined than by the Supreme Court of Alabama in earlier Thus, it was said in Quesenberry v. State, 3 Stew. & Port. 308, that "if the killing took place under circumstances that could afford the slayer no reasonable grounds to believe himself in peril, he could derive no advantage from the general character of the deceased for turbulence and revenge. But if the killing were such as to leave any doubt whether he had been more actuated by the principle of self-preservation than that of malice, it would be proper to admit any testimony calculated to illustrate to the jury the motive by which he had been actuated." So it is said in Pritchett v. The State, 22 Ala. 39, that "an act performed by a quick, impulsive, bloodthirsty, abandoned man may afford much stronger evidence that the life of the party assailed was in imminent peril than if performed by one known to possess an entirely different character and disposition, and might very reasonably justify a resort to more prompt measures of self-preservation." Again, in Franklin v. The State, 29 Ala. 14, the court say: "To avoid detriment in the practical application of the rule, it must be understood neither, on the one hand, to excuse the taking of one's life because he is a bad man, nor, on the other, to be limited to those cases where the facts are such as to make it doubtful whether the homicide was committed se defendendo. The law can not apportion the criminality of the homicide to the character of the deceased, and it can not confine the rule to cases of doubt, because, in such cases, the defendant is entitled to an acquittal; and therefore, so to limit it would be to deny to it all practical effect. When the conduct of the deceased, although in itself innocent, is such that, illustrated by his character, its tendency is to excite a reasonable belief of imminent peril, the evidence ought to be admitted, and the question of its effect left to the determination of the jury. It will be for the court to determine, in every case, whether the facts are such as will justify the admission of the evidence." In all of these cases it was held proper, under the facts in proof, to exclude such evidence. How different the juncture of facts indicated by the above language is from that in Fields' case, the reader has only to glance at that case to perceive. In that case there was, according to the report, no pretence that the killing was done " from a principle of self-preservation;" but, instead of this, the defendant prepared a weapon for the occasion, and for the purpose of avenging an insult which had occured six hours before, deliberately shot and killed the deceased, who was going his own lawful way, peaceably and unarmed, and afterwards declared that he had killed him to avenge the insult. He had "shot the d-d devil, and would kill any man who would charge him with burning his gin-house and call him a thief.” We are willing to concede what we understand our correspondent to argue, that the ground on which the court in Fields' case held this evidence ought to be admitted was not for the purpose of guiding the jury in fixing the technical degree of the crime, but for the purpose of guiding them in |