without some order or judgment of a court. We do not find any authority or reason for the officer's rendering any judgment in the matter. He holds the property, as he does the prisoner, to await, and subject to, the order of the court, The officer having taken into his possession such articles as will supply evidence, "holds them to be disposed of as the court shall direct." Bish. Crim. Pro. 211. "The taking of things from the arrested person does not change the property in them. The officer holds all such property subject to the order of court." Id. 212. Wharton, in his Criminal Practice (8th ed.), § 60, says: "They (the articles taken from the prisoner) should be carefully preserved for the purposes of the trial, and after its close returned to the person whose property they lawfully are." In Spaulding v. Preston, 21 Vt. 9, relied upon by the defendant, the prisoner was committed for trial, and the officer was preserving the property (counterfeit coin) to be used as evidence at the trial. The court held that the officer could lawfully retain them for that purpose. In the case before us, it is not claimed that the drums were detained for evidence. The trial was presumably long over. There is an evident difference, also between articles which can only have an unlawful use, like counterfeit coin, and articles in themselves innocent like drums. If an officer may indefinitely hold the former, it does not follow that he can so hold the latter. Yet in the former case it is provided by our statute (Rev. Stat., chap. 125, § 12), that all such contraband articles are to be kept "by the direction of the court or magistrate having cognizance of the case." Me. Sup. Jud. Ct., Dec. 17, 1887. Thatcher v. Weeks. Opinion by Emery, J.

CARRIERS-BAGGAGE - MERCHANDISE.- By the sale of a ticket to a passenger, a railroad company is rendered liable for the safe transportation of the passenger and his reasonable personal baggage, but not for merchandise delivered by the passenger as baggage, without clear proof of an agreement to that effect. A passenger presenting a valise to the baggage master in the ordinary way to be checked, represents by implication that it contains his personal baggage, and if it in fact contains merchandise, he is guilty of such legal fraud as to absolve the carrier from liability for failure to transport it. Nor is the company rendered liable because there is evidence tending to show that baggage masters at other stations on the same line had previously checked the same valise, with a knowledge of its contents. Me. Sup. Jud. Ct., Dec. 17, 1887. Blumenthal v. Maine Cent. R. Co. Opinion by Emery, J.

LIMITING LIABILITY BY STIPULATION ON TICKET. Where a limitation is inserted in a railroad ticket, limiting the liability of the company to $100 in case of loss of baggage checked by virtue of the purchase of said ticket, held, that said limitation is not binding on the purchaser of said ticket unless, with a knowledge of such limitation, he agrees to it. It is perhaps true that the defendant might, by a special contract, limit its liability so as not to be responsible in case of loss of baggage beyond a given sum, provided the contract was a reasonable restriction. In this case there was no contract on the part of the plaintiff, and no knowledge was conveyed to her of any intention on the part of the defendant to limit its liability, save and except what the ticket itself contained; and this was not read, or its contents made known to the plaintiff. Can this be called or implied a contract? We think that before the plaintiff can be bound by the declaration in the ticket for transportation on a passenger train, the restrictions or limitations sought to be made must be known to her, and she must have accepted the ticket with a full knowledge of the restrictions contained therein. This ticket contained a blank

for the signature of the purchaser; and that signature was to be witnessed by some one. This was not done in this case. The object of that blauk space being left there was doubtless that the attention of a purchaser might be called to the conditions of the ticket, and when called to sign it he would then know its contents. This would constitute a contract between them, but without it there would be no contract, and no restriction or limitation of the liability of the company. The ticket is not a contract of itself; it is simply evidence of a contract. Lawson Cont., §§ 106, 107. Before the giving of this ticket there was nothing said between the parties that one was to limit his liability under certain conditions or circumstances, and consequently the ticket could not be evidence of a contract that did not exist. Again where a person purchases a ticket, he does not expect that thereby he is making a contract limiting the liability of the railroad company, but simply that he is receiving a check showing that the fare has been paid over the line to the place of destination, wherever that may be. Railroad Co. v. Campbell, 36 Ohio St. 657; Railroad Co. v. Fraloff, 100 U. S. 24; Railroad Co. v. Roach, 35 Kan. 740; 12 Pac. Rep. 93, and cases there cited. Kan. Sup. Ct., Dec. 10, 1887. Kansas City, etc. R. Co. v. Rudebaugh. Opinion by Clogston, C.

CONSTITUTIONAL LAW- IMPAIRING CONTRACTS

EXEMPTION OF HOMESTEAD PURCHASED WITH PENSION

MONEY.-A homestead purchased with pension money, and levied upon in satisfaction of a debt contracted prior to such purchase, is not exempt from execution, under a statute providing for the exemption of pension money, or the property purchased therewith, and that such exemption "shall apply to debts of such pensioners contracted prior to the purchase of such homestead." Such latter provision is in conflict with Const. U. S. art. 1, § 10, which declares that "no State shall pass any law impairing the obligation of contracts." Iowa Sup. Ct., Dec. 15, 1887. Foster v. Byrne. Opinion by Reed, J.

CRIMINAL LAW-ADULTERY-PROOF OF RAPE.- On the trial of an indictment for fornication and adultery, the evidence proved the offense of unlawful cohabitation alleged; and also that the prisoner had at times also been guilty of rape. Held, that defendant might be convicted of the offense charged, although he may have been guilty of rape as well. Evidence of the moral character of the accused is competent to guide the court in determining the punishment to be imposed. If at times when the female defendant, from a seuse of shame or any other reason, was not in a yielding or complying mood, he used violence and forced her, against her will, to yield to his brutal lusts, he may have been guilty of the more heinous crime of rape, he is none the less guilty of fornication and adultery in bedding and cohabiting with her in the mauner testified to by the witnesses. The mistake that he commits is in supposing that he may not have been guilty of fornication and adultery in the habitual illicit intercourse to which she freely and voluntarily assented, and at other times of rape, if by violence be forced her to yield to his will. Of the former, the proof of his guilt seems conclusive; and he cannot evade the effect of this indictment by admitting, as he seems to do, that the evidence shows that he is guilty of the latter; he may be guilty of both offenses, but in this indictment he and his co-defendant can only be convicted and punished for the former. N. C. Sup. Ct., Nov. 28, 1887. State v. Summers. Opinion by Davis, J.

EASEMENT-RIGHT OF WAY-PRESCRIPTION.— In an action for obstructing a right of way the court instructed the jury that a private way might cross a

public road. Held, that this was error, and a private way cannot be obtained by prescription across a public highway, as against the owner of the soil. Washb. Easem., §§ 138, 164; Wait Act. & Def. 695; State v. Jefcoat, 11 Rich. 529; Hamilton v. White, 5 N. Y. 9. Besides the principles upon which a private right of way may be prescribed for would seem to exclude this. Prescription is founded upon adverse use for a period of at least twenty years, adverse to some one who has the right to object, and who did not object. Upon such use, the law presumes a grant from the former owner arising from his long acquiescence. To give this prescription a safe foundation however, of course the former owner must know of the adverse use, and must have been in condition to have opposed it, with the right to do so. Now in the case of a public highway, every citizen has the right to be upon it, and to use it as he may desire to go up and down or across it-and we do not see how using a public highway can be adverse to the rights of the owner of the soil upon which it runs. Every one has the right to be there, because it is a public highway, and the owner of the soil, even if he knows that one is there, has no right to object, and his acquiescence cannot be properly construed into an acknowledgment that the party is there by virtue of some private claim, to which he is presumed to have assented, and which may ripen into the presumption of a grant. S. C. Sup. C., Dec. 12, 1887. Whaley v. Stevens. Opinion by Simpson, C. J. EVIDENCE-SECTION OF HUMAN BODY-DISCRETION OF COURT.- In an action for damages for personal injuries, it appears that the wagon in which plaintiff was riding was run into by defendant's wagon, and plaintiff was thrown out, and one of her ribs broken. Defendant, to contradict certain evidence introduced by plaintiff, offered to show the exact location of the ribs in the human system by means of a section of a human body. Held, that such an exhibition being unnecessary and offensive, it was a proper exercise of discretion for the court to refuse it. Conn. Sup. Ct., Oct. 19, 1887. Knowles v. Crampton. Opinion by Carpenter, J.

GIFT OF LAND-EVIDENCE TO SUPPORT.- In a suit for an accounting by a ward against his guardian, who was also his grandfather, in which it was sought to charge the guardian with the income of certain property alleged to have been given by him to his children and grandchildren, including complainants, there was evidence that defendant placed the property in the hands of two sons for the purpose of managing it, and paying over the income to the beneficiaries; that the income was disbursed to defendant's children and grandchildren, except complainants, the amount coming to whom was paid to defendant as guardian. Held, sufficient evidence to support a finding of a gift of the property, and that complainants were entitled to an account for their share of the income. The great point insisted upon in the argument of respondent's counsel was as to the incompleteness of the gift, for the want of delivery of the thing donated. But upon that point we have no difficulty at all. To constitute a valid gift there must be the intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by the law in lieu thereof. Code, § 2657. A parent, guardian, or friend may accept for an infant. Id., § 2658. Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor, and the transfer of dominion to the donee, is a constructive delivery. Code, § 2660. But going outside of the Code, the principles announced here had,

donatio inter vivos, as distinguished from donatio mortis causa, does not require actual delivery. It is sufficient to complete a gift inter vivos that the conduct of the parties should show that the ownership in the chattels had been changed. Florey v. Denny, 7 Exch. 583; Ward v. Audland, 16 Mees. & W. 862. Again where a check was given by A. to B., and presented without delay, the bankers had sufficient assets of A., but refused payment because they doubted the signature. The next day A. died, the check not having been paid. It was held by Sir John Stuart, V. C., to be a complete gift inter vivos of the amount of the check, and he ordered its payment, with interest, by the executors of the donor. Bromley v. Brunton, L. R., 6 Eq.. 275. In Grant v. Grant, 34 Beav. 623, it is held, that "in order to establish the fact of a gift of chattels from a husband to his wife, there must be clear and distinct evidence corroborative of the wife's testimony. It is not necessary that he should deliver them to a trustee for his wife. It is sufficient if he constitutes himself a trustee for her by making the gift in the presence of a witness, or by subsequent statements to a witness that he has made the gift." So in Ex parte Pye, Ex parte Dubost, 18 Ves. 140, 145, Lord Eldon held, that although there had been no actual transfer of the legal interest in the property to trustees, yet if the settler had constituted himself a trustee for volunteers a court of equity would enforce the trust. In Wheatley v. Purr, 1 Keen. 551, H. O. directed her bankers to place $2,000 in the joint names of her children, J. R. W., M. W., and H. W., and her own, as trustee for her children. That sum was accordingly entered in the books of the bankers to the account of H. O., as trustee for her said children. The bankers gave her, as such trustee for the children named, a promissory note for the amount, with interest, and she gave the bankers a receipt for the same. Lord Langdale, M. R., was of opinion that she had constituted herself a trustee for the plaintiffs, her children and that a trust was completely declared, so as to give them a title to relief. These cases, and a number of others illustrating this principle, will be found in the notes to Ellison v. Ellison, 1 White & T. Lead. Cas. Eq., marg. pp. 260-262. Ga. Sup. Ct., April 21, 1887. Poullain v. Poullain. Opinion by Hall, J.

LANDLORD AND TENANT-DUTY OF LANDLORD TO REPAIR-LATENT DEFECTS.-When the owner of a building divides it into several tenements, which he lets to various tenants, but retaining to himself control of the halls and stairways for the common use of the occupants, and those having lawful occasion to be there, he is bound to see that reasonable care and skill are exercised to render the halls and stairways reasonably fit for the uses which he thus invites others to make of them; and he is responsible for any injury which others, lawfully using them with due care, sustain through his failure to discharge this duty; but he is not answerable for defects which do not render the halls or stairways reasonably unfit for use, or which reasonable care and skill would not prevent. The defendant's testator was the owner of a fourstory building in Jersey City, divided into eight tenements, which he let to as many families, all of whom had right of passage to and from their respective tenements by means of the common halls and stairways. The plaintiffs were tenants of four rooms on the second floor. The evidence shows that the plaintiff Alice, while going down the flight of stairs leading from her apartments to the street, caught the heel of her boot in the oilcloth on the stairs, and fell, sustaining the injury for which this suit is brought. The trial justice charged the jury that "the point was whether there was a tear or wear or defect in the oilcloth, and whether that threw her down. If they were satisfied of defect there, then they should render their verdict

for damages; there was liability on the part of the landlord if there was defect in that particular." The jury found for the plaintiffs, and we are now asked to grant a new trial. The testimony does not disclose any contract by the landlord for the repair of the demised premises, and consequently he is not to be deemed responsible for their condition. Mullen v. Rainear, 45 N. J. L. 520. But we think that under the evidence, the halls and stairways should not be regarded as part of the demised premises, within the scope of the rule. It appears to have been the understanding that the landlord should retain control of these portions of the building, lighting the halls and covering the floors at his pleasure, and affording to the tenants and those having lawful occasion to visit their apartments the right of passage to and fro. With respect therefore to the halls and stairways, the landlord was under the responsibility of a general owner of real estate who holds out invitations or inducements to other persons to use his property. Looney v. McLean, 129 Mass. 33. The obligation resting upon such an owner is that reasonable care and skill have been exercised to render the premises reasonably fit for the uses which he has invited others to make of them. Vanderbeck v. Hendry, 34 N. J. Law, 467, 471; Francis v. Cockrell, L. R., 5 Q. B. 184, 501; Readman v. Conway, 126 Mass. 374; Looney v. McLean, supra; Watkins v. Goodall, 138 Mass. 533; Camp v. Wood, 76 N. Y. 92; Edwards v. Railroad Co., 98 id. 245. It is plain that the directions given to the jury at the trial carried the responsibility of the landlord beyond what the law will warrant. The sole conditions of his liability were declared to be a defect in the oilcloth, and the plaintiff's being thrown down by reason of it. Although the testimony was conflicting as to the existence of any noticeable defect, the attention of the jury was not called to, but was diverted from the important inquiries whether the defect was of such a nature as to render the stairs not reasonably fit for the purpose of passage, and whether the landlord had failed to exercise reasonable care in the matter. The case also presents the question whether the plaintiff was in the exercise of due case, for she testifies that she knew of the defect before the accident; yet this subject also was ignored in the charge. A new trial should be granted. N. J. Sup. Ct., Nov. 26, 1887. Gilloon v. Reilly. Opinion by Dixon, J.

MASTER AND SERVANT-TRAIN DISPATCHER AND ENGINEER.-A train dispatcher, vested with the power and authority of moving trains, of changing the schedule time, or making new schedules, as regards the employees engaged in moving trains is a vice-principal," and not a fellow-employee; and in case of an injury resulting to an employee in consequence of his negligence, the company is liable. Upon this point the authorities are numerous, and far from uniform. A volume might be written upon it and not exhaust the subject. I prefer to state our conclusions without elaborating them to any considerable extent. The precise question is whether Sellers, the train dispatcher, was a fellow-workman with the plaintiff within the meaning of that rule of law which holds that the master is not responsible for an injury received by an employee caused by the negligence of a co-employee or fellow-workman. That rule rests upon the sound principle that each one who enters upon the service of another takes on himself all the ordinary risks of the employment in which he engages, and that the negligent acts of his fellow-workmen in the general course of his employment are within the ordinary risks. Coal Co. v. Jones, 86 Penn. St. 432. To constitute fellow-servants, the employees need not be at the same time engaged in the same particular work. It is sufficient if they are in the em

ployment of the same master, engaged in the same common work, and performing duties and services for the same general purpose. The rule is the same, although the one injured may be inferior in grade, and is subject to the direction and control of the superior whose act caused the injury, provided they are both co-operating to effect the same common object. Bridge Co. v. Newberry, 96 Penn. St. 246. Thus we have repeatedly held that a "mining boss," under the act of March 3, 1870, is a fellow-workman with the miners, and that the mine-owners are not responsible for his negligence. Canal Co. v. Carroll, 89 Penn. St. 374. This however is in part owing to the fact that the duty of appointing a mining boss is imposed upon the mine-owners by the act of Assembly, hence the responsibility of the latter would seem to cease when they had exercised due care in the selection of that person. Be that as it may, it is well stated that mere difference in rank or grade does not change the rule. But there are some duties which the master owes to the servant, and from which he cannot relieve himself, except by performance. Thus the master owes to every employee the duty of providing a reasonably safe place in which to work, and reasonably safe instruments, tools and machinery with which to work. This is a direct, personal and absolute obligation, and the master may delegate these duties to an agent, and such agent stands in the place of his principal, and the latter is responsible for the acts of such agent. And where the master or superior places the entire charge of his business, or a distinct branch of it, in the hands of an agent or subordinate, exercising no discretion or oversight of his own, the master is held liable for the negligence of such agent or subordinate. Mullan v. Steamship Co., 78 Peun. St. 25; Railroad Co. v. Bell, 112 id. 400. It is very plain that it was the duty of the defendant company, as between said company and its employees, to provide a reasonably good and safe road, and reasonably safe and good cars, locomotives and machinery, for operating its road. It is equally clear that it was its duty to frame and promulgate such rules and schedules for the moving of its trains as would afford reasonable safety to the operatives who were engaged in moving them. This is a direct, positive duty, which the company owed its employees and for the failure to perform which it would be responsible to any person injured as a consequence thereof, whether such person be a passenger or an employee. It would be a monstrous doctrine to hold that a railroad company could frame such schedules as would inevitably, or even probably, result in collisions and loss of life. This is a personal, positive duty, and while a corporation is compelled to act through agents, yet the agents, in performing duties of this character, stand in the place of and represent the principal. In other words, they are vice-principals. If it be the duty to provide schedules for the moving of its trains which shall be reasonably safe, it follows logically, that when the schedules are departed from, when trains are sent out without a schedule, such orders should be issued by the company as will afford reasonable protection to the employees engaged in the running of such trains. I am not speaking now of collisions caused by a disobedience of orders on the part of conductors and engineers, but of collisions or other accidents, the result of obeying such orders. At the time of the collision referred to, Wellington Bertolotte was the general dispatcher of the defendant company, and from his office in Philadelphia had the general power and authority of moving the trains. In this he was not interfered with by the company or any one else. For the purpose of sending out the trains he wielded all the power of the company. He could send a train out on schedule

my mind a very plain dereliction of duty. But when the district attorney, as in the case which you comment upon, is satisfied that the accused person is guilty of a great offense, but is only unable to construe the law as inflicting a punishment for that offense, the case is still more clear, and he ought to state his view of the law fully to the court, to aid the court in every way by collating the statutes and decisions, and then to leave the responsibility of decision upon the judges to whom it belongs. It is far too common an opinion, even among lawyers, that prosecutors and the people at large have no rights in criminal prosecutions, that all the rights to be protected are on the side of the defense, and that such defense should be given, not only the benefit of every reasonable doubt, but of every unreasonable doubt. There could not be a better illustration of the danger and unwisdom of the theory that a district attorney is to be the absolute judge whether the prosecution shall be continued or not than has beeu afforded in Mr. Semple's case, where four judges upon two successive arguments have unanimously held that the law was the very reverse of what Mr. Semple believed it to be. Need I point out the danger which would be involved in the precedent if Mr. Semple's action should be fully justified. Criminals already are far too apt to make themselves secure without regard to the courts, by simply fixing the district attorney. In more than one case however grand juries and courts have overruled district attorneys, and have forced to conviction against the wishes of a corrupt official. But if honest and sincere district attorneys, like Mr. Semple, are to give countenance to the theory of the absolute control of district attorneys over criminal prosecutions, quite irrespective of the opinions of the judges as to the law, and of juries as to the facts, it will in future be impossible to distinguish between honest and dishonest officials of this class.

Secondly. With regard to section 829 of the Code of Civil Procedure, excluding the evidence of an interested party on account of the death of the opposite party, I am also unable to agree with your views. I have always heartily agreed with the doctrine, that where both parties could be put upon the witness stand, the court and jury might safely be trusted to decide between their conflicting statements. But where one party is dead, it is almost impossible to provide any tests upon the examination of the adverse party, which will make it safe to trust his evidence to a jury. The temptation to perjury in such a case is obviously great, since it would be impossible to secure a conviction for the offense. But which is of more importance than even to protect the representatives of deceased parties from the effects of perjury, it is notorious that interested parties indulge their imaginations to such an extent when there is no one to contradict or correct them, that the most honest and sincere witnesses will, under the influence of strong self-interest, relate conversations whith they fully believe to have taken place, but which in fact either did not take place at all, or are incorrectly stated upon vital points, so as to produce an entirely false impression. Indeed not one person in ten, however honest and conscientious, is able to give an account of a conversation to which he was a party and in which he had a strong pecuniary interest, which does not produce a strong impression. The supposed remedy by cross-examination is no remedy at all more than once in twenty times, and generally results in giving an opportunity to the witness to improve his original statement and make it much stronger than it was before. I could mention well-known instances in which interested parties have narrated a succession of statements absolutely false, known by them

to be false, and confidentially admitted by their own counsel to be utterly false, and even to have been in vented after they had in private consultation with their counsel stated something entirely inconsistent therewith. And yet these witnesses, after being subjected to severe examination by the most famous members of the bar in this State, remained entirely unshaken, and indeed made their testimony more clear and consistent on their cross-examination than they did upon their original examination: so that if the adverse party had not been alive to testify in opposition to them, no human being, except those in the secret, could have seriously questioned the truth of their statements, and no jury which ever was impanelled would have hesitated to gave a verdict accordingly. Yet the adverse party being alive and able te testify, not only in contradiction of these statements, but also in setting forth other and uncontradictable facts known only to him, which made these statements inconsistent, has been able to convince the jury that all this ingeniously-manufactured evidence was false. The abolition of section 829 would simply open the door to the unlimited plunder of widows and orphans. There may be other countries which are virtuous enough to endure such a strain upon justice, although I do not believe it; but of one thing I am quite certain, and that is that the State of New York has not yet reached that height of moral superiority which fits it for the submission to juries of the uncontradicted or uncontradictable evidence of interested witnesses against the estates of deceased perYours obediently,

sons.

NEW YORK, Feb. 14, 1888.

THOMAS G. SHEARMAN.

Editor of the Albany Law Journal:

If it is not too late to take a hand in the discussion, I would like to make a suggestion regarding the "Case of Mr. Semple," as it has been called in the discussion in your columns.

The suggestion is this: It is not infrequently the case that good lawyers think they have a good case when the courts decide otherwise, and at times they think they have no case, when the courts decide that they have.

Inasmuch therefore as the courts declare the law, and the opinions of the attorneys are of little consequence as against actual decisions of the courts, it would seem to be the duty of the prosecuting officers to endeavor to sustain the decisions of the courts, because if the law upon the facts found says a person is guilty, that person is guilty notwithstanding the opinion of the prosecuting officer that the law ought not to say so.

The province of the district attorney is to say before the trial or at the trial if the facts do not seem to warrant a verdict, that he will, by leave of the court, enter a nolle. But when the court holds the facts proved sufficient to warrant a verdict, and a verdict is found, the duty of the prosecutor is to endeavor to sustain the court.

As I understand Mr. Semple's position, he differed with the court below (and as it appears, with the appellate court) as to the law of the case, and therefore wished to submit to a reversal. The result proved his ignorance of the law, and that he would have been wiser to have done as one of our former judges advised me when I was, as it is said Mr. Semple now is. "rather young." His advice was this: "When the court stands by you, you stand by the court." Yours truly,

PORT RICHMOND, N. Y., Feb. 17, 1888.

SUBSCRIBER.