SAINT LOUIS, APRIL 6, 1877.

CURRENT TOPICS.

THE subject of costs in criminal cases in this State is one that has caused much dispute in the Circuit Courts, and between the auditor and the clerks. The case of State v. Bingham, decided lately by the Supreme Court of this State, will settle one phase, at least, of the controversy. The defendant was indicted for embezzlement, and, at a term of the court, upon his application, the case was continued at his costs, and judgment was rendered against him therefor. At a subsequent term he was tried and acquitted, and he then filed his motion to set aside and vacate the judgment rendered against him for costs, and have the same taxed up against the State. This motion was overruled, and exceptions were taken to the ruling. Before the Supreme Court it was insisted, that, as the defendant was acquitted, the State was liable for all the costs that accrued throughout the whole trial, and, in support of this view, the court was referred to the statute relating to costs in criminal cases. By section 4, 1 Wag. St. 349, it is provided, that "in all capital cases, and those in which imprisonment in the penitentiary is the sole punishment for the offense, if the defendant is acquitted, the costs shall be paid by the State." But the court held that this section only had reference to the costs that accrued at the trial, and which had not previously been adjudged against either party. If, at a previous term, there had been a judgment against the defendant for costs, they would not be comprised within the intendment of this section. "If there was any doubt," say the court, "about the legislative will in this regard, we think it is made perfectly plain by referring to the statute regulating criminal practice, which declares that verdicts may be set aside, and new trials awarded, on the application of defendant, and continuance may be granted to either party, in criminal cases, for like causes, and under like circumstances, as in civil cases.' 2 Wag. St. 1104, section 18. This, we think, is decisive of the case, and renders the question too plain to admit of or require argument."

NEWS has been received of the death of Miss Alta M. Hulett, at San Diego, Cal., on the 29th of last month. This lady was well-known throughout the West as one of Chicago's female lawyers, and was perhaps one of the most gifted and successful of the few women, who have, during several years, obtained admission to the bar of that city. Six years ago she commenced the study of the law in Chicago, and was admitted to the Bar of Illinois in the summer of 1873. When forced from physical. decline to quit her post, she had, as seeking a place in a man's field, won an Vol. 14.-No. 14.

a woman

is powerful, and of mistrust, which is general. She had acquired a good practice, and had inspired both the respect of the bar and the confidence of her clients. But the strain was too much, and, during last winter, she was obliged to quit the bleak shores of Lake Michigan for the valleys of Southern California, in the hope of restoring her shattered health. Of the many arguments which can be urged against what Mr. Mill called the emancipation of women, probably none is so unanswerable, and so free from prejudice, as this single fact of the difference in the constitution of the sexes. This lady had, we believe, in a very high degree, the ambition to rise, and the talents and industry to achieve success; but she lacked that without which all other gifts or acquisitions are in vain, the vitality and the physical endurance to sustain the strife. It is, no doubt, but male vanity to claim for one sex the monopoly of intellectual power; but it is only an enunciation of the laws of nature to say that a woman was never constituted to do a man's work. The study and practice of the law are peculiarly his; for, perhaps, in no other profession is the labor so incessant, the mind so constantly occupied, and the toil so continual and great. It requires an almost superhuman physique to stand it, and it is not strange that a woman, who should essay to keep up with her stronger brothers, should have speedily to fall from the ranks. This is a cost which those females who are constantly urging admission to the professions might profitably study.

A NOVEL QUESTION in the law of accident insurance was recently passed upon in the United States Circuit Court for the Eastern District of New York, in the case of Bayliss v. Travelers' Ins. Co., 6 Ins. L. J. 109. The policy agreed to pay the holder $10,000 in case he should sustain "bodily injuries effected through external, violent and accidental means," and contained the proviso that the insurance should not extend to 66 any death or disability which may have been caused, wholly or in part, by any surgical operation. or medical or mechanical treatment for disease." The insured, who had been sick for some time, obtained from his physician, who was treating him for his illness, a preparation of opium, with a direction as to the quantity he was to take. The evidence was conflicting as to the symptoms which followed, and the actions of the patient; but the court rendered its opinion on the assumption that the insured took more opium than had been prescribed, or he had intended to take, and that his death was caused thereby. It was contended, on the part of the plaintiff, that the opium was not administered by the hand of the physician, and was not the dose directed by him, but was a dose taken by the insured upon his own judgment, and therefore his act could not bring the case within the proviso above mentioned. The court, however, decided in favor of the defendant, on the ground that, the opium being taken with no other object

than to effect the result that the physician had advised should be attained by using it, the fact that the patient deviated from the direction given by the physician in the matter of amount, and upon his own judgment took a larger dose than had been directed, did not change the character of the act, and that death caused by such an act, done with such an intent, was a death caused wholly or in part by medical treatment for disease, and therefore not covered by the policy. There have been but few decisions upon this particular branch of life insurance, and none, we believe, arising upon the construction of such a provision as that here construed. The decision in this case certainly carries the doctrine of proximate cause as far as it can conveniently be stretched, if not a little farther than it can logically be carried.

CHIEF JUSTICE COOLEY of the Supreme Court of Michigan, whose fame as a jurist is world-wide, and who has just been re-elected to his place on the bench of that state, to do honor for another term to the position which he has for thirteen years so ably filled, in delivering the closing address to the law graduates of this year, of the University of Michigan, spoke at length upon the state of the law as the best evidence of national progress. The laws give us, he said, the best insight into the real character of the people. "The laws are not merely their professions, but they are professions which they consent shall be put into practice. They present us such rules of order, morals, good neighborhood and equality as the people consent to live up to. If these rules tolerate a vice, we know the general sentiment at the time is unwilling to outlaw it. If they condemn a vice, we know that indulgence must be so far exceptional, that the common voice calls for its punishment. If they allow slavery, we know that the evils which attend the institution necessarily prevail; if they prohibit it, and make every person equal before the law, we see that there prevails a benevolent spirit, which insists that every one shall be entitled equally with others to his opportunity to make of his powers the best possible use. In short, the laws give us, in place of the outward professions of the people, such pledges of conduct as they are willing to be tested at the bar of justice and under civil and criminal penalties; and when the laws have changed for the better, this is evidence that the character of the people has changed in like degree." And further on: "The laws," he continues, “give evidence that the people are or are not in the enjoyment of general happiness, according as they show whether the conditions that admit of general happiness are or are not suffered to exist. There are certain evidences here that are infallible; others are of more ambiguous character. The great charter of King John, for example, bears evidence in almost every clause to the misery and degradation of the period immediately preceding it. Rapine and murder, the plunder of industry, the lawlessness of nobles, the degradation of the com

mon people, and the unrestrained tyranny of the king; these are what it certifies to, and neither general industry, general progress, nor general content was consistent with them. The age was unmistakably one of barbarism. On the other hand, if the laws guard the rights of property; if they secure to industry its just reward; if they assure to the people general good order; if they treat the family rights as sacred, and allow to no one an arbitrary dominion of the person of another,—we may feel certain that general content prevails."

That a people's laws are able also to give us a better idea of their religion, than any number of confessions of faith, we admit; and if, as he well states it, by law, England in the fifteenth century burnt heretics, and by law, Spain in the eighteenth tortured them, it is vain that we shall be pointed to churches, cathedrals and abbeys, to holy books and sacraments, as proof that the people were enlightened; for this is denied too positively in the record of their laws. But are even these a sufficient proof? Can the written laws of a country be alone taken as a guide to the habits, the morality, and the condition of a nation? Suppose a descendant of Macaulay's New Zealander should, centuries hence, undertake to write a history of the American people during the first century of their independence, and all other materials being lost, should found his work on a volume of the statutes, say, of this state. He would then recount how the ancient Americans observed the Sabbath, doing no work, except of necessity or charity; he would relate that among them gambling was unknown, that they were a peaceful and non-aggressive people who carried no weapons for their protection; that the suffrage was free and incorrupt, bribery and fraud being high crimes; that betting was not heard of; that bawdy-houses and prize-fighting, and dueling and cock-fighting were unknown; and that murderers were hanged by the neck until they were dead. Such would the historian be forced to write, if he relied on the written laws, and was unable to discover in what manner they were enforced; and that his history was authentic, only the people who had lived under those laws, and the legislators who had established them, and the officers who had not sustained them, would be able to deny. It is not true, as is sometimes said, that we have too many laws; we have too many laws which are not laws, but which are simply words. When a law is needed, it should be enacted, and while it is needed, it should be executed; but just as soon as it has outlived its usefulness, it should be repealed. Any other custom among a community must necessarily bring not only some, but all laws, into contempt.

MESSRS. LITTLE, BROWN, & Co. have in press the fourth edition of Davis's Criminal Justice, revised, enlarged, and, in part, re-written, by F. F. Heard, Esq. The statutes passed and cases decided down to the present time, will be found in this edition, If Mr. Heard brings all his previous experience and knowledge to bear on this edition, we may safely predict that it will be of great value to justices of the peace, prosecuting officers, and the entire profession.

COUPONS.*

On the 31st day of March, 1871, the National Bank of Newport, New York, received for collection, from certain owners of the Danville, Urbana, Bloomington, and Pekin first-mortgage bonds, their coupons due the next day. The cashier of the bank inclosed them in a package addressed to the First National Bank of New York, and gave the package to a stage-driver, to deliver to the agent of the American Express Company at Herkimer. The stage-driver carelessly left the package on the counter of the Express Company's office in the latter village, and it was stolen by some one as yet unknown. The next day the Newport Bank, having been informed of the loss, telegraphed to the agents of the Railroad Company, and requested stoppage of payment.

On the 3d of April, Mr. Evert Evertsen, a banker at Albany, purchased the stolen coupons. He bought them in the regular course of his business, paying for them in currency, and allowing a premium of ten per cent. for gold. He bought them as he had bought many hundred thousand before that day. He bought them from a stranger; but he bought them without fear of loss to himself from his not being acquainted with the person offering them for sale, because he well knew that the courts had uniformly held that the coupons off negotiable bonds were also negotiable, and that the bona fide holder, or purchaser for value, was secure in his ownership, even though he bought from a thief. On the evening of the day on which he purchased the coupons, he forwarded them to his correspondents in New York, requesting them to collect and place the proceeds to his credit. On the 4th of April the coupons were presented, and payment refused, because of the telegram received from the Newport Bank. Two days after his purchase, Mr. Evertsen read a "news item" in the Albany Argus, as follows: "A package containing $2,100 in gold coupons, due April 1st, of the Indianapolis, Bloomington and Western, and Danville, Urbana, Bloomington, and Pekin R. R. Bonds, was stolen Friday while in transit from Herkimer County. They were payable at Farmers' Loan and Trust Company, and at Turner Brothers, New York City."

Mr. Evertsen thereupon sued the Indianapolis, Bloomington and Western Railroad Company, and, that company having paid the amount of the coupons into court, the Newport Bank was substituted in its place in the suit, and Mr. Evertsen and the bank proceeded to litigate their claims to the amount deposited. The referee, to whom the matter was referred, found in favor of Mr. Evertsen, and the finding was sustained by the court. The bank appealed, and the Supreme Court, general term, sustained the former decision in favor of Mr. Evertsen. Again the bank appealed, and the Court of Appeals decided in favor of Mr. *The substance of this article is taken from a pamphlet on the above interesting subject, written by Charles W. Hassler, Esq., of New York City, who has kindly consented to abridge it for this journal.-[ED. C. L. J.

Evertsen as regards ten of the coupons, and in favor of the Newport Bank as regards the remaining forty-seven.

As this case presents a question of vital importance, not only to banks and bankers throughout the country who may purchase, collect, or pay coupons, but also to the owners of all kinds of bonds, we propose to examine the reasons which have led the court of last resort of the State of New York to arrive at the conclusion to which we have referred.

It is a familiar rule of law that, in general, a thief can transfer to another no greater title than he himself possesses-that is, none whatever. The great exception to this rule is in the case of negotiable paper; and, to constitute any written instrument negotiable, it is necessary that it should contain an absolute promise, signed by a definite person, to pay to a definite person, or to his order, or to bearer, a certain sum of money, absolutely, and at all events. Such promises to pay, whether under seal or not, if payable to bearer or indorsed in blank, are different from all other classes of property, and the honest purchaser for value, before maturity, acquires title to them even if purchased from a thief, who himself has no title, and can give none.

Every business man can not but agree with the celebrated Lord Mansfield, who, in one of the earliest cases in the Reports, said, that "Trade and commerce would be much inconvenienced by a contrary determination." 1 Smith's Ld'g Cases, 600.

Lord Mansfield, it is true, referred especially to bank notes; but it has now been fully established that the same rule applies to all the other various kinds of negotiable instruments. "Every holder of such paper is presumed to be the owner. The title and possession are considered one and inseparable, and, in the absence of any explanation, the law presumes that a party in possession holds the instrument for value until the contrary is made to appear." "The possession of a bill or note, payable to bearer, or indorsed in blank by one not a party to the instrument, is presumptive evidence of ownership." "One who, for value, obtains from the apparent owner a transfer of negotiable paper before it matures, and who has no notice of any equities between the original parties, or any defect in the title of the presumptive owner, is to be deemed a bona fide holder." "The power of a thief to sell the stolen paper is derived from a rule of public policy, and his capacity to do any act respecting it must be affected, and, in fact, measured by that rule. This is established solely for the protection of purchasers, and can not be so strained or perverted as to work them an injury.” Colson v. Arnot, 57 N. Y. 268. "The party who takes it before due, for a valuable consideration, without knowledge of any defect of title, and in good faith, holds it by a title valid against all the world. Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross

negligence on the part of the taker, at the time of the transfer, will not defeat his title. That result can be produced only by bad faith on his part." Murray v. Lardner, 2 Wall. 121.

Such are some of the conclusions at which the higher courts of the State of New York and of the United States have arrived in regard to these matters; and from them we gather that, in order to acquire title to a stolen negotiable instrument, it is necessary that it should be purchased before maturity, for a valuable consideration and in good faith.

Now, Mr. Evertsen paid, in good faith, for all the fifty-seven coupons, a sum within a small fraction of the amount which would have been realized for them, had they been presented by the owner of the bonds to the agents in New York City.

It must be noted here, however, that it is a wellestablished principle that, upon the sale of a nonnegotiable written instrument, the purchaser takes it subject to all the equities existing between prior holders.

That bonds, issued under seal, are not thereby deprived of their negotiability has been fully decided. "There are, no doubt, decisions," says Judge Dwight, of the late Commission of Appeals, "that an instrument under seal is not negotiable. These cases refer to private obligations between individuals. They are not to be extended to the case of public securities like those issued by the Government, and intended to seek for a market throughout the civilized world. The seal was not placed there to restrain their negotiability, but rather to stamp them as genuine wherever they might be in circulation." Dinsmore v. Duncan, 57 N. Y. 577. As we have frequently heard the learned author of this opinion state, that the same rule was applicable to railroad, state, and municipal bonds having a seal affixed, we know that it was not his intention to limit his statement to "Government" or United States bonds, as some might suppose from the words used in the opinion. One of the judges of the Supreme Court of Pennsylvania has, indeed, put himself on record as holding in opposition to these views; but even he has had the candor to say: "On this ground we stand alone. All the courts, American and English, are against us." (!) Diamond v. Lawrence Co., 37 Penn. St. 358.

A coupon bond may be said to consist of two parts: First, the bond proper, containing the promise to pay the principal and interest at certain definite periods; and, second, the coupons, being detachable portions of the complete instrument, by means of which the specified payments of interest may be collected as they become due. Decisions, almost without number, sustain the statement that coupon bonds, "when expressed in negotiable words," follow the same rules as are applicable to other instruments similarly worded. 2 Daniel's Neg. Instr. 435. And, had Mr. Evertsen bought the fifty-seven bonds with the coupons of April 1, 1871, attached, it is scarcely possible that

the Court of Appeals should have decided that he had title to only ten of them.

And, as to detached coupons, the Supreme Court of the United States (City v. Lamson, 9 Wall. 483) has given a decision, in which Justice Nelson says: "The coupon is not an independent instrument, like a promissory note for a sum of money, but is given for interest thereafter to become due upon the bond, which interest is parcel of the bond, and partakes of its nature. These coupons

* *

are, substantially, but copies from the body of the bond in respect to the interest, and, as is well known, are given to the holder of the bond for the purpose, first, of enabling him to collect the interest at the time and place mentioned, without the trouble of presenting the bond every time it becomes due; and, second, to enable the holder to realize the interest due, or to become due, by negotiating the coupons to the bearer in business transactions on whom the duty of collecting them devolves. This device affords great convenience to all persons dealing in these securities, especially to the holder in foreign countries, who otherwise would be obliged to forward the bond to the place of payment of the interest every time it became due, or trust them to the hands of their correspondents in the country where the payment is made." After further comments on the "great convenience of these coupons, the court decided that they were negotiable, subject to the usual rules, independent of the bonds, and such suit was not barred by the statute of limitations, unless the lapse of time was sufficient to bar also a suit upon the bonds. In another case, the same court has held that "the coupon, if in the usual form, is but a repetition of the contract in respect to the interest." Lexington v. Butler, 14 Wall. 296; and see Aurora City v. West, 7 Wall. 105; White v. V. & M. R. R., 21 How. 575.

This leads us to inquire, what did the Supreme Court consider the "usual form?" The expression is used: "Coupons attached as interest warrants to bonds." And again: "The interest warrants, payable on the 1st of September, 1858," etc. But, when we examine the wording of the coupon thus described, we find that, in each case, there was a promise to pay to the bearer or holder a certain sum, absolutely, and on a certain specified date. For instance (Moran v. Commissioners, 2 Black, 728):

AUDITOR'S OFFICE, Miami County, Peru, Indiana. The Treasurer of said county will pay the legal holder hereof One Hundred Dollars on the 1st day of September, 1857, on presentation hereof, being for interest due on the obligation of said county, No. 16, given to the Peru and Indianapolis Railroad Company. By order of the Commissioners,

IRA MENDENHALL, County Auditor. Again (City of Kenosha v. Lamson, 9 Wall. 474):

$25. THE CITY OF KENOSHA, WIS., Will pay to the bearer Twenty-five Dollars on the 1st day of September, 1860, at the People's Bank, in the City of New York, on presentation of this coupon,

--but a careful reading of the case shows that the question of the negotiability of the coupons so worded was not raised, and that no decision was given on that point.

Ten of the coupons bought by Mr. Evertsen read as follows:

$35. THE INDIANAPOLIS, BLOOMINGTON, AND $35. WESTERN RAILWAY Co.

Will pay the bearer, at its Agency, in the City of New York, Thirty-five Dollars in gold coin, on the 1st day of April, 1871, for semi-annual interest on Bond No.

66

W. J. ERMENTROUT, Secretary.

The Supreme Court of New York decided that both these coupons were negotiable instruments, and that Mr. Evertsen, having purchased them in good faith for value, held them as against all claimants. Evertsen v. First Nat. Bank, 4 Hun, 692. But, as we have previously said, the Court of Appeals has just decided that he acquired title only to the ten Indianapolis, Bloomington and Western coupons. The coupons of the Indianapolis, Bloomington and Western Railway Company," says Judge Allen, in the opinion concurred in by all, being promissory notes, they necessarily had all the characteristics of such instruments, and were entitled to the benefit of the days of grace allowable on bills and notes payable at a given day, or on time." 3 Alb. L. J. 350 (May 13, 1876.) In regard to the other forty-seven coupons, the opinion says: "The coupons of the Danville, Urbana, Bloomington and Pekin Railroad Company, termed upon their face "Interest Warrants," are in somewhat different form. Whether they are within that description of property to which a title may be acquired by a bona fide transferee for value, notwithstanding a defect of title in the transferrer, depends upon their negotiability." And then the court holds that these "warrants" are not negotiable, not having the necessary requisites of negotiable paper, and that, therefore, Mr. Evertsen acquired no better title than that of the thiefnone whatever.

Considering the distinction thus so distinctly

Treasurer.

Under the ruling of the Court of Appeals, a purchaser of either of the above three coupons would only acquire such title as was had by the person from whom he bought.

$8.

RICHMOND, RAY COUNTY, MISSOURI,
D. 1868.

THE COUNTY OF RAY Acknowledges to owe the sum of Eight Dollars, payable to bearer, on the 1st day of January, A. D. 18—, at the American Exchange National Bank in New York, for one year's interest on Bond No.

Clerk

Of the County Court of Ray County, Missouri. The following coupons are in the usual form: NORTHERN PACIFIC RAILROAD COMPANY Will pay to bearer, at the office of Jay Cooke & Co., in the City of New York,

THIRTY-SIX 50-100 DOLLARS GOLD, being interest due the 1st July, 1876, on Bond No. "" Treasurer.

THE CHICAGO, DANVILLE AND VINCENNES $35. RAILROAD COMPANY Will pay the bearer, at its agency in the City of New York, Thirty-five Dollars, in coin, on the 1st day of A. D. 18-, for semi-annual interest on its FirstMortgage Bond No.