136. MASTER AND SERVANT-Master's Liability- Test. -Test of employer's liability for defective machinery is whether it was reasonably safe for the purpose for which it was used.-KENNEDY V. ALDEN COAL CO., Pa., 49 Atl. Rep. 341.

137. MECHANICS' LIENS - Owner's Liability - Ultra Vires Contracts. It is no objecttion to the claim of a material-man to a mechanic's lien that the contractor had no power under its charter to make the contract. -GENERAL FIRE-EXTINGUISHER CO. V. MAGEE CARPET WORKS, Pa., 49 Atl. Rep. 366.

138. MECHANICS' LIENS Payment by Owner-Right of Material-Men.-That owner voluntarily paid a bill in excess of the contract price of the building, did not prejudice a material-man furnishing materials to the contractor.-SOUTHERN CALIFORNIA LUMBER CO. v. JONES, Cal., 65 Pac. Rep. 378.

129. MECHANICS' LIENS - Pleading General Issue.Defendant in mechanic's lien, having pleaded general issue, waives defect in claim.- GENERAL FIRE-EXTINGUISHER CO. V. MAGEE CARPET WORKS, Pa., 49 Atl. Rep. 366.

140. MINES AND MINERALS-Blood Veins-Surface Lo cation.-Blind veins underneath prior lode claims belong to the surface location under Rev. St. U. S. § 2322. -CALHOUN GOLD-MIN. CO. V. AJAX GOLD MIN. CO., U. 8. S. C., 21 Sup. Ct. Rep. 885.

141. MINES AND MINERALS-Exploration-Mechanic's Lien.-A mining expert who contracted to explore certain mines held not entitled to assert a mechanic's lien on the property for such services under Mechanic's Lien Act.-LINDEMANN V. BELDEN CONSOL. MIN. & MILL. Co., Colo., 65 Pac. Rep. 403.

142. MINES AND MINERALS - Patents Collateral Attack.-Patents of lode-mining claims cannot be col laterally attacked by evidence that on a subsequent location of a tunnel site no ore had been discovered in the lode claims.-CALHOUN GOLD-MIN. Co. v. AJAX GOLD-MIN. Co., U. S. S. C., 21 Sup. Ct. Rep. 835.

143. MORTGAGES - Bona Fide Indorsee Equities.Where a negotiable note secured by a trust deed is transferred before maturity to a bona fide indorsee, his rights under the trust deed are not subject to defenses existing between the maker and payee.-COWING V. CLOUD, Colo., 65 Pac. Rep. 417.

144. MORTGAGES -Parties Second Mortgagee.-In an action to foreclose a prior mortgage, it was not necessary to make a second mortgagee of church property, whose mortgage was made by the president and secretary of the trustees individually, a party.— SHACKLETON V. ALLEN CHAPEL AFRICAN M. E. CHURCH, Mont., 65 Pac. Rep. 428.

145. MORTGAGES - Priming Right of Record Mortgages.-Rights of mortgage creditors second in rank held recognized as priming the mortgage first in rank to the extent that it was without consideration when the mortgage creditors second in rank acquired their rights.-WAMSLEY V. RESWEBER, La., 30 South. Rep. 5. 146. MUNICIPAL CORPORATIONS-Bonds-Irregularity. -Bonds for payment of street improvements issued under Act May 23, 1889, held valid, though assessment was invalid because of the irregularity in passage of city ordinance.-GABLE v. CITY OF ALTOONA, Pa., 49 Atl. Rep. 367.

147. MUNICIPAL CORPORATIONS-Contract-Ordinance or Resolution.-Where statutes governing cities do not require a contract to be entered into by ordinance, a city cannot avoid a contract, which it recognized as valid on the ground that its execution was authorized only by a resolution.-OGDEN CITY V. WEAVER, U. S. C. C. of App., Eighth Circuit, 108 Fed. Rep. 564.

148. MUNICIPAL CORPORATIONS - Negligence-Steam Roller. No other notice to travelers of a steam roller on the street is necessary than a view of the roller it self.-DISTRICT OF COLUMBIA V. MOULTON, U. S. 8. C., 21 Sup. Ct. Rep. 840.

149. NEGLIGENCE-Children-Excavation.-One making excavation held not bound to so guard it as to prevent injury to children who come upon it without his invitation.-SAVANNAH, ETC. RY. Co. v. BEAVERS, Ga., 39 S. E. Rep. 82.

150. NEGLIGENCE -Children-Open Cellar. - Premises located 30 feet from a city street, containing an unguarded open cellar, held not particularly attractive to children, so as to render the owner liable for infuries.- LOFTUS V. DEHAIL, Cal., 65 Pac. Rep. 379.

151. NEGLIGENCE-Proximate Cause.-Violence of a playmate held the proximate cause of plaintiff's injuries, so that the owner of property on which the inju ry occurred was not liable.-LOFTUS v. DEHAIL, Cal., 65 Pac Rep. 379.

152. NEW TRIAL-Amount too Trivial.-Amount involved in an action against a garnishee held too trivial to justify the granting of a petition for a new trial, though error appeared.-WIGHTMAN V. KRUGER, 49 Atl. Rep. 395.

153. NEW TRIAL-Modification of Judgment.-Where plaintiff failed to comply with order requiring him to consent to a modification of the judgment held to entitle defendant to a new trial.-BONELLI V. JONES, R. I., Nev., 65 Pac. Rep. 374.

154. PARTIES-Waiver.-An objection that plaintiff's co-tenant should have been joined in an action held waived, where it was not made in writing before the commencement of trial.-DARILL V. DODDS, Miss., 30 South. Rep. 4.

153. PARTNERSHIP-Dissolution-Service of Process.-Service of process on a commerical partnership during its continuance may be made by service on one of the members, which will be service on all; but, after dis. solution, service must be made on each member in. tended to be sued.-LEVY V. RICH, La., 30 South. Rep. 877.

156. PLEADING - Amended and Substituted Pleadings. An amended petition may be filed, instead of attempting to file a substitute for the original petition, which, with all the records, have been lost.-DISTRICT OF COLUMBIA V. TALTY, U. S. S. C., 21 Sup. Ct. Rep. 896. 157. PLEADING-Amendment.-The statutes of Missouri do not authorized a plaintiff to amend his peti. tion in vacation before the term to which the summons is returnable.-PETERSON V CHICAGO, M. & St. P. RY. Co., U. S. C. C., W. D. Mo., 108 Fed. Rep. 561.

158. PLEADING - Amendment After Trial Commenced. The court, after trial has been entered upon, can allow amendment to complaint to correspond with the evidence.-TAPSCOTT V. GIBSON, Ala., 30 South. Rep. 23.

159. PLEADING-Puis Darrein Continuance.- Matter arising after suit brought, but before issue joined, is not proper matter for a puis darrein continuance.LINDSAY V. BARNETT, Ala., 30 South. Rep. 395.

160. PLEDGES-Banks-Assignment of Mortgage.-An assignment of a mortgage to a bank by a stockholder of a corporation to secure a corporate debt was a pledge, and he occupied the position of surety.VALENTINE V. DONOHOE KELLY BANKING CO., Cal., 65 Pac. Rep. 381.

161. PRINCIPAL AND SURETY-Fraudulent Conveyance of Co-Surety.-Surety on administrator's bond held entitled, at any time within 10 years after final settle ment of the adminstration, to maintain bill to set aside conveyance of co-surety as fraudulent against him.-WASHINGTON V. NORWOOD, Ala., 30 South. Rep.

405.

162. PRINCIPAL AND SURETY-Right of Contribution.Right of contribution accrues only when surety pays more than his share of the common liability.-WASH. INGTON V. NORWOOD, Ala., 30 South. Rep. 405.

163. PROHIBITION--Final Hearing-Interlocutory Or der Where, on application for a writ of prohibition, a rule nisi is granted, it is no objection that the judg

ment prohibited respondents from doing the acts complained of until final hearing.-EX PARTE CAMPBELL, Ala., 30 South. Rep. 385.

164. QUIETING TITLE Contract of Share. The grantees of a mining claim, in consideration of a contract to work the mine and give part of the minerals to the grantor, cannot have their titles quieted as against the grantor and his assigns.-DOWING V. RADEMACHER, Cal., 65 Pac. Rep. 385.

165. QUIETING TITLE-Description-Judgment.-In an action to quiet title, a judgment in favor of plaintiff, relating to land other than that described in the complaint, was erroneous, as not within the issues. -BALFOUR-GUTHRIE INV. Co. v. SAWDAY, Cal., 65 Pac. Rep.

375.

166. REFORMATION OF INSTRUMENTS - Possession of Plaintiff Under Deed.-In order to maintain bill to correct description of lands in a deed, it is not necessary that complainant should be in possession.-BEILER V. DREHER, Ala., 30 South. Rep. 22.

167. REMOVAL OF CAUSES-A nending Petition.-The unauthorized filing of an amended petition in vaca. tion, reducing the amount of the damage prayed for below, $2,000, held not to affect defendant's right of removal.-PETERSON V. CHICAGO, ETC. RY. Co., U. S. C. C., W. D. (Mo.), 108 Fed. Rep. 561.

16S. SHERIFFS AND CONSTABLES Negligence - Indemnity.-Constables selling goods under distress for rent, held not entitled to recover on indemnity bond; his liability for damages being caused by his own neg. lect.-RLAIR V. BORING, Pa., 49 Atl. Rep. 865.

169. SHIPPING State Pilot Owner's Liability.-A ship owner is not liable for injuries caused by negli gence of pilot accepted by vessel under Laws N. Y. 1892.-HOMER RAMSDELL TRANSP. Co. v. LA COMPAGNIE GENERALE TRANSATIANTIQUE, U. S. S. C., 21 Sup. Ct. Rep. 831.

170. STATUTES - Construction.-Where an act must be construed either as unconstitutional or as rep aling a former act by implication, the latter construc tion will be adopted. - PARK V. CANDLER, Ga., 39 S. E. Rep. 89.

171. STATUTES - Construction by Federal Court of State Statutes.-Construction by a state court of a state statute held binding on the Supreme Court of the United States.-COMMERCIAL NAT. BANK V. CHAMBERS, U. S. S. C., 21 Sup. Ct. Rep. 866.

172. STATUTES Repeal Effect. Where an act at tempts to repeal prior legislation not germane to the general subject, it will not vitiate the entire act.-COMMONWEALTH V. MOIR, Pa., 49 Atl. Rep. 351.

173. STATUTES-Title.-Act March 7, 1901, relating to cities of the second class, held not unconstitutional as not expressing the subject in the title.-COMMON. WEALTH V. MOIR, Pa., 49 Atl Rep. 351.

174 STATUTES Title-Undisclosed Subjects.-Act of 1898 to equalize taxation for state and county pur poses, held unconstitutional, as embracing subjects not disclosed in its title.-EQUITABLE GUAR. & TRUST Co. V. DONAHOE. Del., 49 Atl. Rep. 372.

175. STIPULATIONS Evidence Unauthenticated Copies.-Agreements between counsel, permitting un. authenticated copies of documents to be offered in evidence liberally construed.-LEVY V. RICH, La., 30 South. Rep. 377.

176. TAXATION-Assessment-Capital Stock. - Refusal to deduct the value of real estate owned in other states by national bank from the value of its shares of stock, held not to unlawfully discriminate against such bank under United States constitution.-COMMERCIAL NAT. BANK V. CHAMBERS, U. S. S. C., 21 Sup. Ct. Rep 868.

177. TAXATION - Assessment-Computation.- Where the roadbed and rolling stock of a railroad was worth $11,000 per mile, and assessable value of the rolling stock was $1,000 per mile, it was error to reduce the $11,000 by 50 per cent. and then subtract $1,000, to find

the assessable value of the roadbed per mile.-OREGON & C. R. Co. v. JACKSON CO., Oreg., 65 Pac. Rep. 369. 178. TAXATION-Assessment-Judgment on Appeal.— Where circuit court, on appeal, affirmed judgment of commissioners' court raising an assessment for taxation, it was error to render further judgment for the taxes due on the assessment as raised.-EX PARTE HOWARD HARRISON IRON Co., Ala., 30 South. Rep. 400. 179. TAXATION-Capital Stock - Computation.-Gen. St. § 3886, authorizing deduction of real estate forming part of the capital stock in computing the taxable value of corporate stock, does not authorize the deduction of real estate held to respond to particular liabilities.-APPEAL OF CUTLER, Conn, 49 Atl. Rep. 338. 180. TAXATION-National Banks-Assessment.-Rev. St. U. S. § 5219, forbidding taxation of shareholders in national banks at a greater degree than other moneyed capital, does not include capital which does not come in competition with the business of national banks.-COMMERCIAL NAT. BANK V. CHAMBERS, U. S. C. C., 21 Sup. Ct. Rep. 863.

181. TAXATION - Redemption Enhanced Value.Where a purchaser of swamp lands made improve ments after suit to redeem, he must account from that date for the full rental value of the property as enhanced by the subsequent improvements. -BAIRD V. MCNAMARA, Miss., 30 South. Rep. 69.

182. TRESPASS-Proof- Reasonable Doubt.-In a civil action for trespass by defendant's hogs, plaintiff held not required to prove his case beyond a reasonable doubt.-SMITH V. SMITH, Colo., 65 Pac. Rep. 401.

183. TRESPASS Proof of Title. Evidence of title from the state to plaintiff, without showing title in the state and that plaintiff had paid the taxes held not sufficient to support an action to recover the statutory penalty for cutting trees from the prop erty. DARILL V. DODDS, Miss., 30 South. Rep. 4. 184. TRUSTS AND TRUSTEES Resulting Trusts.Where agent for the sale of a patent purchased lands with his own funds, and verbally agreed to sell land to his principal whenever the latter could realize the money, held, no resulting trust in favor of the prin cipal. NAGENGAST V. ALZ, Md., 49 Atl., Rep. 333. 185. USURY Conflict of Laws.- Where contract is made in one state, to be performed in another, the parties may stipulate for highest legal interest allowed in either state.-PIONEER SAVING & LOAN Co. v. NONNE MACHER, Ala., 30 South. Rep. 79.

186. WILLS-"Heirs of Money"-Definition.-The term "heirs of money," in a will, construed to mean those to whom bequests of money were made, as distinguished from those to whom specific articles of prop. erty were bequeathed or bequests of sums for specific purposes, and not "next of kin."- COOK V. FIRST UNIVERSALIST CHURCH, R. I., 49 Atl. Rep. 389.

187. WILLS-Legatees-Who Are. The giving in a will to testator's wife of money in conformity with a marriage settlement held not to make her a legatee within other provisions of the will.-IN RE PENTZ'S ESTATE, Pa., 49 Atl. Rep. 361.

188. WITNESSES- Cross-Examination - Defendant.Defendant, in an action to contest his right to an office, held not subject to cross examination as to cam. paign expenses not referred to in his testimony in chief.-BRADLEY V. CLARK, Cal., 65 Pac. Rep. 395,

189. WITNESSES - Privilege Incrimination.- A witness against a person charged with violations of the purity of elections act held not privileged from tes. tifying on the ground that his testimony would tend to criminate himself and degrade his character.-BRAD LEY V. CLARK, Cal., 65 Pac. Rep. 395.

190. WORK AND LABOR- Separating Items.- On a count for services rendered, where plaintiff grouped three items and alleged a single charge for the value of the services in all, it was not improper for the court to segregate the items and allow judgment for one of them.-CONROY V. WALTERS, Cal., 65 Pac. Rep. 387.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 25, 1901.

The Venie Congres International de l' Anthropologie Criminelle "passed the following resolution at its meeting, September 9-14, 1901, at Amsterdam: "The members

of the fifth International Congress of Criminal Anthropology are in favor of the establishment of psycho-physical laboratories for the practical application of physiological psychology to sociological and abnormal or pathological data, especially as found in institutions for the criminal, pauper, and defective classes, and in hospitals, and also as may be observed in schools and other institutions." This congress consisted of most distinguished jurists, medico-legalists and scientists, representing the highest authority of Europe. It meets once in five years.

In our country, up to the present time, four national and fourteen state medical associations, and three city academies of medicine have passed the same resolution, with definite reference to the immediate establishment of a national laboratory for that purpose, to be under the supervision and control of the department of the interior at Washington. We earnestly commend to bar associations and to members of the bar in every state of the Union the same interested consideration of this important question. Now that it has been clearly made evident that imprisonment nor even the death penalty is sufficient to deter the criminal man, it is clearly the duty of public-spirited citizens, and especially members of the bar, to whom the people properly look for guidance in such matters, to seek diligently to promote every legitimate attempt toward the solution of this most difficult and most important problem.

The suggestion has been made, and is being quite generally advocated, that congress be asked to make an attempt to take the life of the President of the United States treason. This suggestion is made in ignorance of the law. We made no comment on it, however, at the time it was first made, because we believed

it to be merely a product of the excitement of the hour. Since then, however, reputable law journals and a political convention in the State of Rhode Island have formally adopted the suggestion.

Treason against the United States is unique in one particular, it is the only crime defined by the constitution. Article 3, section 3, says: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Treason is the highest and most infamous of crimes. Its punishment is most ignominious and severe; its stigma being worse than death. For this reason, undoubtedly, the wise framers of the constitution thought best to define it and place it within limits beyond which it could not be extended. Otherwise in times of great political or other national excitement, one faction, in power, might make certain acts or insults of an opposing faction treason, however innocent might be those acts of any of the essentials of treason. Congress, therefore, has absolutely no right or power to restrict, extend or otherwise impair the constitutional definition. That question was firmly settled by the supreme court in the early cases of United States v. Greathouse, 2 Abb. (U. S.) 364, and United States v. Hanway, 2 Wall. Jr. (U. S.) 139.

In the United States the leading case upon the essentials of the crime came up in connection with an alleged scheme of VicePresident Burr to concentrate an armed force at New Orleans and establish a southwestern confederacy. Burr was indicted and tried, but the jury found him not guilty. In re Burr, 4 Cranch (U. S.), 469. Bollman, a confederate, was also arrested but was discharged on habeas corpus by the supreme court. Ex parte Bollman, 4 Cranch (U. S.), 135. In this case Marshall, J., said: combination or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such conspiracy into execution; some actual force or violence must be used in pursuance of such design." In the case of United States v. Hoxie, 1 Paine (U. S.), 265, it was held that a resistance of the execution of a law of the United States accompanied with any degree of force, if for a private purpose, is not treason. To constitute that offense,

"A

the reason or object of the resistance must be of a public or general character. So also in United States v. Prior, 3 Wash. (U. S.) 234, it was held that going from the British squadron to the shore, for the purpose of peaceably procuring provisions for the enemy did not amount to an act of treason, as this conduct rested in intention, which is not punishable by our laws. These cases are cited to show how jealously the supreme court has resisted any enlargement or restriction of the crime of treason, even by construction of the courts.

steps of monarchical governments. The president must be one of the people, he must mix with them; he must be accessible. If he must, by constitutional fiat, be clothed with a false sanctity and placed on a pedestal out of the reach of the common people, because he cannot trust his life in their hands, there is an end of Republican government and a return to monarchical principles. We have absolute confidence, however, in the ability of the American people to correct the evils of anarchism and its teaching without uprooting their own constitution or the safeguards of Republican government. Better let the tares and the wheat grow together than to destroy the wheat with the tares.

Whether it would

judg.

be wise to amend the constitution for this purpose, is, at least, doubtful. That this was not a case carelessly overlooked by the framers of the constitution is made very evident by an examination of sec. 3, of article 3, of the constitution. Notice first the careful choice of words in defining the crime; second, the wise provision for proof on sufficient testimony; and third, its limitation on congress in relation to the kind of punishment to be prescribed. These facts show the care with which this subject was considered and the importance which was attached to it. But, further than this, the use of the word "only," limiting the statement of what acts should constitute the crime of treason shows 8 deliberate ment to exclude every other act that might possibly be construed to be treason, or which in other countries might by custom come within that term, and to settle absolutely, as far as this country was concerned, the exact boundary of this most infamous crime. Treason in a free country is necessarily limited to the very acts which define it in our own constitution. If it goes beyond that it clothes the offices and officers of government with a false sanctity like that of kings and emperors which is destructive of all principles of democracy. Neither would it be any deterrent to the crime it is proposed to check; on the contrary it would serve only to fan the flame of discontent by showing a tendency to follow in the foot

EVIDENCE-PHOTOGRAPH OF SIGNATURES AS EVIDENCE. Whether photographs are admissible in evidence is now well settled in the affirmative. Considering the general accuracy of photographic reproductions it would seem that there could be no more objection to their introduction than to those of letter-press copies which are so generally used as evidence. In the recent case of First National Bank v. Wisdom's Executors, 63 S. W. Rep. 461, the Supreme Court of Kentucky held that where the signature of an instrument was in question, the signature in contest and certain genuine signatures of W having been enlarged and reproduced by photography, the photographs were admissible in evidence, after proof by the photographers of their accuracy. The court said:

"Appellees had the signature in contest and two other signatures of the testator, one at the foot of a check and one on the back of a note, both clearly genuine, enlarged and reproduced by photography. These photographs were exhibited to the jury after proof by the photographers of their accuracy. Appellant complains of the admission of the photographs. But they were only a more enduring form of exhibiting the signatures to the jury as under a magnifying glass. Such evidence has often been held competent. Luco v. U. S., 23 How. 541, 16 L. Ed. 545; Marcy v. Barnes, 16 Gray, 161, 77 Am. Dec. 405; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; U.S. v. Ortiz, 176 U. S. 430, 20 Sup. Ct. 466, 44 L. Ed. 529."

PARTITION-TITLE AND INTEREST CONVEYED BY VOLUNTARY DEEDS IN PARTITION.-Some perplexing questions often arise on voluntary partition of lands, especially after marriage of one of the tenants in common before partition. At the time of partition and the passing of the deeds separating the interests of all in common to interests in severalty, does the marriage of

one of the tenants in any manner affect her interest? This question arose in the recent case of Palmer v. Alexander, 62 S. W. Rep. 691, where the Supreme Court of Missouri held that where, after deed is executed in partition to a single woman, she marries, and another deed is subsequently executed to correct a defective description, naming the wife and her husband as grantees, the husband acquires no right by the entirety, but only the right to which he is entitled as husband. The court said: "The precise question here involved has so recently been exhaustively examined and decided in an opinion by Brace, P. J., in Whitsett V. Wamack (Mo.) 59 S. W. Rep. 961, that nothing more remains to be said upon the subject. It was there held that a voluntary partition conveys no new title-makes no degree. It only adjusts the rights of the parties to the possession. Each does not take the allottment by purchase, but is as much seised of it by descent from the common ancestor as of the undivided share before partition. Alln. Partit. 124. The deed of partition destroys the unity of possession, and henceforward each holds his share in severalty; but such deed confers no new title or additional estate in the land. 2 Bl. Comm. 186. The title being already in him, the deed merely designated his share by metes and bounds, and allotted it to be held in severalty."

LETTERS-MISTAKES IN DELIVERY-DAMAGES FOR RETENTION. Revised Statutes of the United States, sec. 3892, provide that any person who shall obstruct the correspondence of another shall be punishable by fine. Whether this statute also gives a right of action for damages was never definitely decided until the recent decision of Cohen v. Cohen, 63 S. W. Rep. (Texas, 1901,) 544. In this case plaintiffs brought suit on account of their failure to consummate the sale of certain real estate alleged to be owned by them in Houston. They averred, in substance, that appellant got a letter from the post office at San Antonio addressed to appellee, A. Cohen, containing information with reference to the proposed sale of the property, and that appellant negligently retained possession of the letter for several days, and in consequence of which appellees were unable to comply with requests made upon them in the letter, and as a result thereof the proposed purchaser refused to buy the property.

The case

was tried before a jnry, and judgment was rendered in favor of appellees for actual damages in the sum of $700. The court held that defendant was liable for damages sustained by reason of plaint. iff's failure to sell certain property which would have been sold but for the negligent retention of the letter. The reasoning of the court is that the statate, though penal, imposed upon defendant a duty not to interfere or obstruct the correspondence of the plaintiff, and on breach of this duty he was liable for damages proximately resulting therefrom. This rule, however, is not applicable to the

postmaster-general.

He is not responsible to

third persons either for his own default or that of his deputies. The deputies, however, are answerable for their own negligence or that of their subordinates for wrongfully detaining a letter. Dunlap v. Munroe, 7 Cranch (U. S. ), 242; Stack v. Harris, 5 Burr. 2709; Teall v. Felton, 12 How. (U.S.) 284; Bishop v. Williamson, 11 Me. 495: Christy v. Smith, 23 Vt. 663; Fitzgerald v. Burrell, 106 Mass. 446.

HUSBAND AND WIFE-LIABILITY OF HUSBAND FOR CRIME OF THE WIFE.-The liability of a husband for the crimes of his wife is governed by rules as old as the common law. The general rule is that a husband is liable for the crimes of his wife committed during coverture in his presence and with his knowledge and consent. Hensly v. State, 52 Ala. 10; Commonwealth v. Wood, 97 Mass. 225; Miller v. State, 25 Wis. 384; Goldstein v. People, 82 N. Y. 231; Edwards v. State, 27 Ark. 493; State v. Potter, 42 Vt. 495; State v. Banks, 48 Ind. 197. If act is done under coercion in the husband's presence, he alone is liable; if done in his presence by the wife of her own free will, both are jointly liable; if committed out of his presence but with his concurrence, the husband is liable, but if committed out of his presence and without his knowledge or consent, wife alone is liable. The greatest difficulty, however, in this question is as to the liability of the wife for acts committed partly within and partly out of the husband's presence. This phase of the question arose in an interesting form in the case of State v. Miller, 62 S. W. Rep. 692, where the Supreme Court of Missouri held that where a wife, whose husband was incarcerated after conviction for murder, at his instigation procured a revolver, which she carried and delivered to him in the jail, such offense was committed in the husband's presence, though he was not present when she procured and conveyed the revolver to the jail, and hence there was nothing to rebut the presumption that the crime was committed at the husband's instigation, so as to relieve the wife from liability. The court said: "Marriage does not take from the wife her general capacity to commit crime, but, as it casts upon her the duty of obedience to and affection for her husband, the law indulges a presumption that, if she commits an offense in his presence, it is the result of his constraint or coercion, and, in the absence of proof to the contrary, excuses her. 1 Bish. New Cr. Law, § 357. This presumption is not a conclusive one, but is rebuttable. State v. Ma Foo, 110 Mo. 7, 19 S. W. Rep. 222. In this case the evidence showed that the wife, at the instigation of her husband, procured a revolver, and took it to him in the county jail. Here she was present while delivering the thing to him, but was absent while procuring and conveying it. We thought it must be held that the husband was present when the ofense was committed, and, being so, the fact that