ive boards of directors, is not voidable at the election of one of the parties thereto, from the mere circumstances, that a minority of its board of directors are also directors of the other company. 4. The plaintiff and defendant, by their respective boards of directors, entered into a contract whereby the plaintiff agreed to supply the defendant with all the rolling stock required in the operation of its railway for the period of seven years, at an agreed rental to be paid monthly. The five persons composing the plaintiff's board of directors were members of the defendant's board, which consisted of thirteen persons. At the meeting of the defendant's board, at which the terms of said contract were agreed upon and confirmed, there were present only eight directors, two of whom were directors of the plaintiff. The plaintiff supplied the rolling stock as agreed, and the defendant received and used the same in the operation of its railway for the period of nearly two years and a half, when the contract was terminated; Held, if it be assumed that the contract under the circumstances of the case was voidable, in equity, at the election of the defendant, within a reasonable time after the same was made, for want of a quorum of directors at the meeting at which the contract was agreed upon and confirmed who were not directors of the plaintiff, the delay in exercising the election to avoid it operated as a waiver of the right so to do; and, consequently, an instruction to the jury that such right existed at the time of the trial was erroneous. Judgment reversed and cause remanded. Opinion by BOYNTON, J.-U. S. Rolling Stock Co. v. Atlantic & Great Western R. Co.

SUPREME COURT OF WISCONSIN.

March 1, 1879.

JUDGMENT-RES ADJUDICATA.-1. A judgment is no bar to a subsequent action not between the same parties or their representatives or privies. 2. Plaintiff obtained a judgment for rent against C and B & Co. jointly, but there was no such firm as B & Co., that being a misnomer for A & Co.; and satisfaction of the judgment out of the property of A & Co. was thus defeated, and it remained unsatisfied. Afterwards this action was brought for the same rent against A & Co., the complaint alleging that they rented the property through C as their agent. Held, that plaintiff is not estopped by the former action and judgment from maintaining this action against A & Co. as sole principals. Opinion by ORTON, J.-Tiernay v. Abbott.

ILLEGAL CONTRACT--AGREEMENT NOT TO PROSECUTE-DURESS.-1. An agreement of a private person not to prosecute another for crime, is illegal and void; but money voluntarily paid in consideration of such an agreement can not be recovered. 2. The mere fact that a person who agreed to pay money in consideration of a promise not to prosecute his son for an alleged crime, did not believe that his son was guilty, will not entitle him to recover money paid upon sucn agreement, though it may be considered by the jury in determining whether the payment was made under duress. 3. A threat to procure the arrest and imprisonment of one's son under a false criminal charge, and reasonable ground to believe that such threat will be executed, probably constitute duress. 4. To recover, on the ground of duress, moneys paid upon a note executed in pursuance of an illegal agreement, duress at the time of such payment (and not merely at the time of giving the note) must be shown. Opinion by LYON, J.-Schultz v. Culbertson.

SLANDER-PROOF-EVIDENCE- PRACTICE.- 1. In actions for slander, it is sufficient if the gravamen of the charge, as laid, be proven. 2. Where, therefore, the slanderous words charged imputed to the female

plaintiff a crime, and defendant's answer, while deny. ing that he spoke the precise words charged, admitted that he spoke "other words of similar import," and justified by alleging that plaintiff did in fact commit the crime thus imputed to her, and the proof was that defendant used words of similar import to those charged, though not quite the exact words, the vari ance was immaterial. 3. Words falsely charging an act criminal by the law of the place of the act are slanderous per se, whether or not such act would have been criminal by the law of the place of the speaking. 4. Where the question of plaintiff's character and reputation for chastity was proper to be considered by the jury, a witness who testified that she had known plaintiff, at the place of their common residence, for eight years, might properly be asked, "What has been her character and reputation, so far as you know, as a lady of morality, virtue and chastity?" without being first asked, whether she knew plaintiff's general character and reputation. 5. Where it is sought to impeach the testimony of a witness by proof of his statements elsewhere, his attention having been called to the time, place, etc., if he does not admit making the statements, they may be proved by other witnesses; and, finally, the first witness may be allow ed to re-affirm or explain his evidence: but it is error to reject further evidence, by other witnesses, to sustain the testimony of such first witness as to the character of his statements on the occasion referred to. 6. The bill of exceptions, in due form, is a 1ecord importing absolute verity in this court, until duly amended; and a statement therein that the charge given to the jury was in writing, is conclusive of the fact. 7. A judgment will not be reversed for errors in the charge which could not have materially affected the result. Opinion by ORTON, J. -Dufresne v. Weise.

"WANTON OR OBSCENE LANGUAGE"-VIOLATION OF CITY ORDINANCE-PRACTICE.-1. A city ordinance provides a penalty "if any person shall address any wanton or obscene language to another, or exhibit any wanton, lewd or obscene gestures or conduct." Held, that the expression 66 wanton or obscene language" is here equivalent to lewd or lascivious language; and that the words "long-legged son of a bitch," "longlegged pup," and "damned son of a bitch," do not come within the ordinance. 2. In an action for a malicious prosecution, as for violation of a specified city ordinance, where it appeared that plaintiff, at the time to which the prosecution related, probably violated other penal ordinances of the city, but that the facts stated by defendant to the magistrate as the ground of complaint, and upon which, by the magistrate's advice, the formal complaint was entered, clearly did not constitute a violation of such other ordinances, it was error to instruct the jury that, in determining whether there was probable cause for the prosecution, they might consider whether defendant acted under an innocent mistake as to which ordinance had been violated. 3. If a prosecutor fully and truly states the facts of which he complains, to some one admitted to practice in the courts as one learned in the law, and is advised by him that such facts constitute the offense for which he thereupon prosecutes, this stands for probable cause, and protects him in an action against him for such prosecution. But the advice of a justice of the peace, not being a person so admitted to practice, is not a protection. 4. An action for a violation of the city ordinance above described is a mere civil action for a penalty, and not a criminal prosecution; and a jury may be waived by stipulation therein. 5. On plaintiff's appeal from a judgment against him in an action against several defendants, this court may affirm the judgment as to one defendant, and reverse it as to the others. R. S. § 3071; Cairns v. O'Bleness, 40 Wis. 469. Opinion by LYON J.-Sutton v. McConnell. ̧

BOOK NOTICES.

REPORTS OF CASES IN LAW AND EQUITY, determined by the Supreme Judicial Court of Maine. By JOSIAH D. PULSIFER, Reporter to the State. Vol. 68. Portland, Maine: Dresser, McLellan & Co. 1879.

The cases reported in this volume extend from the beginning of August, 1875, to the end of the year 1878. It contains over 650 pages, a good index, a table of cases reported and cited. The reporter's work is well done, and the press work and paper are very good. Several of the decisions in this volume have already appeared in this JOURNAL. Among other cases of interest we note the following:

DEED-FALSE DESCRIPTION of Land. - A false description in one particular, where enough remains to make it reasonably certain what premises are intended, will not defeat a conveyance. Thus, where in a conveyance of a homestead farm, one of the parcels of which it was composed was described as "twelve and a half acres out of lot numbered eight in the first range:" Held, that the whole parcel passed, although it in fact contained twenty-five acres.-Andrews v. Pearson.

MASTER AND SERVANT-NEGLIGENCE.-1. A person who voluntarily assists the servant of another, in a particular emergency, can not recover from the master for an injury caused by the negligence or misconduct of such servant; he can impose no greater duty on the master than a hired servant. 2. A servant can not recover for an injury incurred in assisting a fellow servant either voluntarily or on the request of such servant.-Osborn v. Knox & Lincoln R. Co. DRAINS-LIABILITY OF MUNICIPAL CORPORATIONS. -To determine a plan of drainage, and what drains shall connect in a street of a city, is a judicial act of the officers for which the city are under no common law liability; though if the connection be unskillfully made, it is a ministerial act for which the city is liable in damages to a party injured thereby.-Darling v. Bangor.

CONTRACT-FRAUD-MONEY HAD AND RECEIVED. The defendant subscribed for shares in a patent-right, to be held by him without payment therefor, otherwise than by inducing others to subscribe for shares, and give their notes therefor for greatly more than the value of the shares; the notes afterwards came into his hands by purchase, and were by him negotiated for money and paid by the makers. Held, that these facts would not entitle the makers to maintain an action against him for money had and received.—Lane v. Smith.

ASSAULT EVIDENCE.-The plaintiff was assaulted and injured by the defendant, while interfering to protect her father in an affray between them. Held that, while the fact of an affray and injury to her father may have been admissible in evidence, the detailed account of its subsequent consequences would not be.-Flint v. Bruce.

INNKEEPER-WHAT NECESSARY TO CREATE RELATION. To create the common law liability of an innkeeper, the relation of guest and host must exist. Where one leaves his horse with an innkeeper, with no intention of stopping at the inn himself, but stops with a relative, whose guest he is, he is not a guest of the inn. In such a case, the liability of the landlord is simply that of an ordinary bailee for hire.-Healey v. Gray.

DEFECTIVE WAY-LIABILITY OF TOWNS- CAUSE OF INJURY.-1. A town is not required to render its roads passable for traveling for the entire width of their located limits, but only to keep a width thereof in a smooth condition, sufficient to render the passing over them safe and convenient. 2. A town has the right in making and repairing a road, to remove stone

and stumps out, and leave natural obstructions upon, the sides of the way; provided the same are situated so far from the traveled track that persons with teams may pass without danger of coming into collision with them. 3. A town is not liable for damage sustained by a traveler from the fright of his horse at meeting cows in the road with boards on their horns, and also from a defect in the way, the combined action of both causes operating to produce the accident.-Perkins v. Fayette.

EVIDENCE-ADMISSION-JUDICIAL DISCRETION.— An admission made at the first trial, if reduced to writing, or incorporated into a record of the case, will be binding at another trial of the case, unless the presiding judge, in the exercise of his discretion, thinks proper to release the party from it.-Holley v. Young. ASSAULT-ACTION NOT SUSPENDED TILL OFFENDER IS PROSECUTED CRIMINALLY.-By the law of this State, the civil remedy of a person injured by a felonious assault and battery is not suspended till the offender has been prosecuted criminally. WALTON, J.: "In Boody v. Keating, 4 Me. 164, and again in Crowell v. Merrich, 19 Me. 392, the court say that the rule that a civil action in behalf of the party injured is suspended until a criminal prosecution has been commenced and disposed of, is limited to larcenies and burglaries. The same opinion had before been expressed in Boardman v. Gore, 15 Mass. 331. In Boston, etc., R. Co. v. Dana, 1 Gray, 83, where the defendant had made himself comparatively rich by stealing from the railroad company, the question was fully examined, and the court held that while it is undoubtedly the law in England that the civil remedy of the party injured by a felony is suspended till after the termination of a criminal prosecution against the offender, such had never been the law here. And such is the prevailing opinion in this country. Pettingill v. Redout, 6 N. H. 454; Piscat Bk. v. Tumley, 1 Miles, 312; Cross v. Guthevy, 2 Root, 90; Patton v. Freeman, Coxe, 113; Hepburn's Case, 3 Bland, 114; Allison v. Farmers Bk., 6 Rand, 223; White v. Fort, 3 Hawks, 251; Robinson v. Gulph, 1 Comst. 231; Story v. Hammond, 4 Ohio, 376; Ballew v. Alexander, 6 B. Mon. 38; Lofton v. Vogles, 17 Ind. 105; Boardman v. Gore, 15 Mass. 331; Hawk v. Minnich, 19 Ohio St. 462, 2 Am. Rep. 413."-Nowlan v. Griffen..

QUERIES AND ANSWERS.

[The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

**The following queries received during the past month are respectfully submitted to our subscribers for solution, by request of the senders. It is particularly desired that any of our readers who have had similar cases, or have investigated the principles on which they depend, will take the trouble to forward an answer to as many of them as they are able.

QUERIES.

15. COMMERCIAL LAW.-The following named parties are all bankers. A holds draft on B, which he sends to his correspondent C for collection and credit. C, at the time, being insolvent, sends it to D, his correspondent, for collection and credit, but before draft is paid C makes an assignment. D collects draft and holds proceeds. The assignee treats and recognizes A creditor and D as a debtor of C to the amount of draft. Who is liable to A for the amount of proceeds of draft, and are C, his assignee, and D, proper parties defendant in an action to recover same? C.

St. Louis.

ANSWERS.

No. 10.

[8 Cent. L. J. 240.]

Bank checks payable to order or bearer are such an assignment of the funds in bank as to be the subject of of gifts causa mortis. See Kent's Com., 8th ed., Vol. II, 567; Story,s Eq., Vol. I, § 607a; Parsons' Notes & Bills, Vol. II, 56; Boutts v. Ellis, 21 Eng. Law and Eq. R. 237; Lawson v. Lawson, 1 P. Wms. 441· Harris v. Clark, 3 N. Y. 120; Sessions v. Mosely, 4 Cush. 87, 92. A. W. J.

Ottumwa, Iowa.

of action first accrued, would not defeat the statute. The same rule is recognized in the case of Demarest v. Uynkoop, 3 Johns. Ch. 138. See also Manion v. Titsworth, 18 B. Mon. (Ky.) 901; Martin v. Letty, Id. 582; Findley v. Patterson, 2 Id. 78; in all of which cases it is unequivocally held that the statute runs from the removal of the disability that existed when the right of action first accrued, notwithstanding any successive disability incurred after the right accrued. If the statute was suspended by the war any length of time after the infancy ceased, that length of time should be excluded in computing the time making up W. A. S. the statutory bar.

Flemingsburg, Ky.

No. 10.

[8 Cent. L. J. 240.]

A donatio mortis causa is a gift in prospect of death when a person in his last sickness, apprehending his dissolution near, delivers, or causes to be delivered to another the possession of any personal goods, to keep in case of his decease. 2 Bl. Com. 514. With respect to the nature of a donatio mortis causa, this kind of amphibious gift so far resembles a legacy that it is ambulatory and incomplete during the donor's life; it is therefore revocable by him (7 Taunt. 221; 3 Binn. 366), and subject to his debts upon a deficiency of assets. 1 P. Wms. 405. But in the following particulars it differs from a legacy; it does not fall within an administration, nor require any act in the executors to constitute a title in the donee. Rop. Leg. 29. The rollowing circumstances are required to constitute a good donatio mortis causa; 1. That the thing given be personal property, 3 Binn. 370;a bond, 3 Binn. 270; 3 Madd. R. 184; 3 Atk. 214; 2 Ves. Sen. 442; 1 Bro. C. C. 72: bank notes; 2 Bro. C. C. 612. A check offered for payment during the life of the donor will be so considered. 4 Bro. C. C. 286; 2 Wills. on Ex. from 449 to 502; 2 Gills & Johnson (Md.). 208. 2 .That the gift be made by the donor in peril of death, or during his last illness, and to take effect only in case the giver die. 3 Binn. 270; 4 Burn's Ecc. Law, 110. 3. That there can be an actual delivery of the subject to and for the donee in cases where such delivery can be made. 3 Binn. 370; 2 Ves. Jr. 120. See 9 Ves. 1; 7 Taunt.2 24. But such delivery can be made to a third person for the use of the donee. 3 Binn. 370. It is an unsesttled question whether such kind of gift appearing in writing without delivery of the subject can be supported. 2 Ves. Jr. 120. By the Roman and civil law, a gift mortis causa might be made in writing. Dig. Lib. 39, t. 6, 1. 28; 2 Ves. Sr. 440; 1 Ves. Sen. 314; See, in general, 1 Foub. Tr. Eq. 288 n.; Coop. Quat 474; Vin. Abr. Legacies, A; Supp. to Ves. gr. Vol. I' 143, 170; Vol. II, 97, 215; Rop. Leg. ch. 11 Twimb. pt. 1, sec. 7. M. THOMPSON.

No. 11.

[8 Cent. L. J. 240.]

It is against the policy of law or equity to permit the statute of limitations to be avoided by excessive or cumulative disabilities. Hence, in the case under consideration, the feme covert can not avail herself of the disability of coverture, in order to defeat the statutory bar. In Doe v. Jesson, 6 East. 84, it is held that successive disabilities can not be taken advantage of so as to avoid the statute. In Eager v. Com., 4 Tyng, 182, the plaintiff was an infant when the right of action first accrued, and before the disability of infancy was removed, the disability of coverture occurred, and the Supreme Court of Massachusetts held that the latter disability, not existing when the right

NOTES.

JOHN M. ELLIOTT, one of the Justices of the Court of Appeals of Kentucky, was last week fatally shot in front of the capitol, at Frankfort, by Henry Buford, a resident of that State. The court of appeals had a few days previously rendered a decision adverse to a case in which Buford had an interest. He loaded a doublebarreled shot-gun, waited for the judge to go to dinner, and walked up and shot him through the heart without warning, killing him instantly. The assassin was arrested, and is now in jail. Buford acknowledged that the other barrel of the gun had been loaded for Chief Justice Pryor, and he would have killed him also had not some children been in the way. The greatest indignation is felt by all citizens at the horrible crime. The deceased judge was born in Virginia in 1820, and began the practice of the law in Kentucky in 1843. In 1847 he was elected to the State Legislature, and in 1853 was chosen as a Democrat to the 33d Congress. He was also re-elected to the 34th and 35th Congresses. He was a representative from Kentucky in the Confed. erate Congress. After the war he became Circuit Judge of Henry County, and was subsequently raised to a place on the court of appeals' bench, which position he held at the time of his death.-Isaac Edwards, Dean of the Albany Law School, and author of several excellent law books on Bills, Bailments, and Factors and Brokers, died last week by his own hand. The act was committed in a fit of mental aberration.

-Daniel M. Bates, late Chancellor of Delaware, died at Richmond on the 28th ult.In the recent case of Nunn v. Hemming, says an English paper, brought by an ex-lunatic, against the keeper of a lunatic asylum in which he had been confined, for assault, it seems to have been assumed both by judge and jury that a man subject to hallucination on one point, is necessarily untrustworthy as a witness, and that his evidence on all other subjects must therefore be discredited. There is a well-known story, illustrative of the contrary proposition, told of Burke, who, in collecting information for a speech that he was about to deliver in the House on an Indian question, was referred to an exofficial, then the inmate of a lunatic asylum. Burke had an interview with the lunatic, who proved to be a man of excellent information, and fully competent to advise on the subject on which he consulted him. On leaving the asylum Burke expressed his indignation to the keeper of the asylum, and intimated his intention of bringing the matter before Parliament. "Before you do that, sir," replied the keeper, “go back and ask him what he had for breakfast this morning." Burke did as he was requested, when the lunatic at once burst into indignant invective against the authorities, and replied: "Hobnails, sir; is it not disgraceful? hobnails, nothing else." Burke was satisfied; but he did not reject the poor man's testimony on the Indian question.

The Central Law Journal.

SAINT LOUIS, APRIL 11, 1879.

CURRENT TOPICS.

IN Mayor, etc., of Cumberland v. Wilson, which was an action to recover damages for injuries to plaintiff's mill privileges, by obstructing the natural flow of water through the race, it appeared that in 1868, under the authority of a legislative enactment, the city limits were extended, by which a street was extended along a certain road, and the extension was graded and paved. By this grading, the surface-water from an adjoining hill was interrupted, and a larger flow of water than formerly was conducted into the race, along the street so graded and paved, and a large quantity of mud and debris was conducted into the race near the mill. It was held by the Court of Appeals of Maryland that there was no cause of action. The court said that the doctrine is well settled that a municipal corporation can not be held liable in an action for consequential damages to private property, where the act complained of was done under and by the authority of a constitutional legislative enactment, and reasonable care and skill has been used in the execution of the power, although the same act, if done without legislative sanction, would be actionable. "Property thus injured is not, in the constitutional sense, taken for public use. This doctrine was long since announced, after the most careful consideration by courts of the highest authority, and judges of great eminence and learning." 2 Dillon Mun. Corp., § 781; Collendr v. Marsh, 1 Pick. 418; Radcliffe v. Brooklyn, 4 Comst. 195; O'Connor v. Pittsburg, 18 Penn. St. 187; Gosler v. Georgetown, 6 Wheat. 595; Smith v. Washington, 20 How, 135.

In Box v. Jubb, recently before the Exchequer Division of the English High Court of Justice, the defendants were the owners of a reservoir which was supplied with water from a main drain, not their property, which flowed by it. There were sluice gates properly constructed between the reservoir and main drain Vol. 8-No. 15.

at both the inlet and outlet. Owing to an obstruction in the main drain at a point below the defendants' reservoir, caused by a third party over whom the defendants had no control and without their knowledge, the water in the drain forced open the sluice gates and caused the reservoir to overthrow on the plaintiff's land. It was attempted to bring the case within the rule in Rylands v. Fletcher, L. R. 3 H. L., 330; but the court held that the defendants were not liable for the damages caused by the overflow. KELLY, C. B.-The defendants in this case, it appears, had been in possession of this reservoir and the communications between it and the main drain, for a number of years; there was no defect in their construction; moreover the case finds that the inlet and outlet were furnished with proper doors. The question is, "What was the cause of the overflow? was it anything for which the defendants are responsible? was there any act or default of theirs?" Now it is found by the case that the obstruction was caused by circumstances over which the defendants had no control, namely, by the act of a third party. I care not whether it is called vis major or a wrongful act of a third party. Then it is contended that the defendants ought to have anticipated the possibility of such a vast quantity of water pressing on their gates; but the case does not find that any amount of strengthening in the gates could have resisted the great pressure suddenly brought to bear on them. I am of opinion, for these reasons, that the defendants are entitled to our judgment. POLLOCK, B.

This is a case deserving of great consideration, and I should, perhaps, have liked further consideration of it if the authorities bearing on the subject had not been cited for the plaintiff. What wrong has the defendant in this case done? If a man builds his mill-dam of good materials, and constructs it properly, as was here the case, for what is he to be liable? Rylands v. Fletcher, if read carefully, has no analogy to the present case; in that case the House of Lords, in the judgment of Lord Chancellor Cairns, adopted the accurate language of Mr. Justice Blackburn in the court below. This case bears no analogy to the case of a common carrier, who is only excused by the acts of God or the Queen's enemies. The case of Ross v. Fedden, L. R. 7 Q. B. 661, is, to a certain extent, applicable, but I do not rest my judgment on that case.

The criminal law of the Territory of Utah formerly provided that one convicted of a capital crime should suffer death "by being shot, hung or beheaded as the court may direct or as the person may choose." This provision was repealed by the present code which simply provides that every person guilty of murder in the first degree, "shall uffer death." In Wilkerson v. People, decided by the Supreme Court of the United States during the present term, the prisoner had been convicted by a court of that territory of murder in the first degree and sentenced to be shot. The Supreme Court, on appeal, affirm the sentence, holding that the Federal statute providing that the punishment of death shall be by hanging did not preclude the territories from legislating on the subject, or from providing other methods of inflicting death if they were not cruel and unusual, and that death by shooting was not "cruel or unusual" within the meaning of the Constitution. Mr. Justice CLIFFORD said: "Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment. Soldiers convicted of desertion or other capi tal military offenses are in the great majority of cases sentenced to be shot, and the ceremony for such occasions is given in great fullness by the writers upon the subject of courtsmartial. Simmons, secs. 759, 760. De Hart, pp. 247, 248. Where the conviction is in the civil tribunals, the rule of the common law was that the sentence or judgment must be pronounced or rendered by the court in which the prisoner was tried or finally condemned, and the rule was universal that it must be such as is annexed to the crime by law. Of these, says Blackstone, some are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead. 4 Black. Com. 377. Such is the general statement of that commentator, but he admits that in very atrocious crimes other circumstances of terror, pain, or disgrace were sometimes superadded. Cases mentioned by the author are where the prisoner was drawn or dragged to the place of

execution in treason, or where he was emboweled alive, beheaded, and quartered in high treason. Mention is also made of public dissection in murder, and burning alive in treason committed by a female. History confirms the truth of these atrocities, but the commentator states that the humanity of the nation by tacit consent allowed the mitigation of such parts of those judgments as savored of torture or cruelty, and he states that they were seldom strictly carried into effect. Examples of such legislation in the early history of the parent country are given by the annotator of the last edition of Archibold's Treatise. Crim. Pr. & Pl., 8th ed., 584. Many instances, says Chitty, have arisen in which the ignominious or more painful parts of the punishment of high treason have been remitted, until the result appears to be that the king, though he cannot vary the sentence so as to aggravate the punishment, may mitigate or remit a part of its severity. 1 Chitt. Cr. L., 787; 1 Hale P. C., 370. Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution. Cooley on Const. 4th ed., 408. Wharton Cr. L., 7th ed., sec. 3,405. Persons guilty of murder in the first degree 'shall suffer death,' are the words of the territorial statute; and when that provision is construed in connection with section ten of the code previously referred to, it is clear that it is made obligatory upon the court to prescribe the mode of executing the sentence of death which the code imposes where the conviction is for murder in the first degree, subject, of course, to the constitutional prohibition that cruel and unusual punishment shall not be inflicted. Other modes besides hanging were sometimes resorted to at common law, nor did the common law in terms require the court, in passing the sentence, to prescribe the mode of execution, or to fix the time or place for carrying it into effect, as is frequently, if not always done in the Federal circuit courts. At common law, neither the mode of executing the prisoner nor the time or place of execu