too upon legitimate evidence; as, for instance, the printed statute books which are generally made prima facie evidence that the laws appearing therein have been duly enacted. But it is not necessary to formally offer them in evidence, and the court will take judicial notice of any variance between the printed statute and the enrolled bill; and so where by law the record reaches back of the enrolled bill and embraces the legislative journals, the court will take judicial notice of them also. In the very nature of things, where the constitution requires certain steps to be taken before a bill can be enacted into a law, and requires that those steps shall be recorded in the legislative journals, the journals themselves are the best evidence that these steps have or have not been taken and recorded. All other evidence must be secondary. The printed statute is, prima facie, a transcript of the enrolled bill; but the court will look at the enrolled bill to ascertain the real fact. So, the certificate of the presiding officers of the two houses, together with the signature of the governor, approving a bill, are prima facie evidence that the bill was passed in a constitutional manner; but the court will inspect the record of the two houses and take judicial notice of the actual facts shown by that record. As to facts not required to be made to appear on the journals, the certificate of the proper officers is conclusive, with, perhaps, some unimportant exceptions. The rule in such cases was well stated by Mr. Justice Miller in delivering the opinion of the court in Gardner v. The Collector, 6 Wall. 499: "We are of the opinion therefore, on principle as well as authority, that, whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it, have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule." In delivering the opinion of the court in The People v. Mahoney, 13 Mich. 492, Mr. Justice Cooley said: "As the court is bound judicially to take notice of what the law is, we have no doubt it is our right, as well our duty, to take notice not only of the printed statute books, but also of the journals of the two houses, to enable us to determine whether all the constitutional requirements to the validity of a statute have been complied with. The printed statute is not prima facie valid when other records, of which the court must equally take notice, show that some constitutional formality is wanting. No plea is necessary to bring to the notice of the court facts which the judges must judicially know, and in respect to which no proof could be given." In Osburn v. Staley, 5 W. Va. 85, the court, after examining the authorities at length, said: "I conclude from these authorities, together with others examined and not named here, that, as the constitution requires each branch of the legislature to keep a journal, and provides that on the passage of every bill the vote shall be taken by yeas and nays, and be entered in the journal, and that no bill shall be passed by either branch without an affirmative vote of a majority of the members elected thereto, this court should look beyond the authentication of the act to the journal of the Senate, to see if the bill was passed by the required number of votes." The same rule was asserted in State v. Platt, 2 S. C. (N. S.) 150, and it was said: "When several independent acts are required to be performed in order to accomplish a given result, to say that proof of the performance of one of them should be admitted as conclusive proof of the performance of the others, is to say, in effect, that that one alone is really requisite." In Board of Supervisors v. Heenan, 2 Minn. 330, after referring to the provisions of the constitution of that state in regard to the passage of laws, the court said: "A similar provision is in the constitution of California, New Jersey, New York, Ohio, and, perhaps, other states; in some it has been held to be directory, in others essential. If it is only directory, it is senseless; but if it is held to mean what it imports, it is an advance in the science of government worthy of imitation by all states and countries whose legislatures are not absolute. When questions of this kind are presented, they must be tried by the court and never as a fact by a jury. The court may inspect the original bills on file with the secretary of state, and have recourse to the journals of the houses of the legislature to ascertain whether or not the law has received all the constitutional sanctions to its validity." And so it was held in Berry v. Balt., etc., R. Co., 41 Md. 446, where it was said: "This question has repeatedly arisen in several of

the state courts of the highest authority, and in all cases, with but few exceptions, it has been held, that neither the printed statute book, nor the ordinary authentication of the statute after its passage, would preclude the inquiry into the fact whether the statute, as published, had in truth passed the legislature, and as evidence upon the question, the legislative journals and the bills, as acted upon by the legislative assemblies, have been consulted." Earlier cases in that court, seeming to assert a different rule, were qualified. In Burr v. Ross, 19 Ark. 250, the supreme court inspected the Senate journals and determined that a law printed in the statute books did not pass that branch of the general assembly, and that it was consequently inopera. tive. The question was apparently first raised in that court. The supreme court of Alabama held, in Jones v. Hutchinson, 43 Ala. 721, and in Moody v. State, 48 Ala. 115, that it was proper to inspect the legislative journals to ascertain whether a law, appearing in the statute book, was legally passed, and that the courts would take judicial notice of such journals. In the first case it was said: "It is undeniably true that a bill becomes a law only where it has gone through all the forms made necessary by the constitution to give it validity." In the latter case, after inspecting the journals, it was held that a bill signed by the presiding officers of the two houses and approved by the governor, and published in the session acts, "never acquired the force of law;" that it was, "as a law, wholly void, a mere nullity, and imposed no legal obligation on anybody." And this rule obtains in Ohio. Miller v. Gibson, 3 Oh. St. 475; Ohio v. Loomis, 5 Oh. 363; Fordyce v. Godman, 20 Oh. St. 1. And in New Hampshire: Opinion of the judges, 52 N. H. 662, affirming 35 N. H. 579.

"Each house keeps a journal of its proceedings which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence and adjudge the statute void." Cooley's Const. Lim. 135. "It is settled that judges may, and, if they deem it necessary, should look beyond the printed statute book, and examine the original engrossed bills on file in the office of the secretary of state; and it seems that the journals of the two houses may be also consulted.” Sedgw. Stat. & Const. Law, 2d Ed. § 55.

Eld v. Gorham, 20 Conn. 9, is generally cited as authority against going behind the enrolled bill; but it was held in that case, that even the original enrolled bills could not be consulted, and, by a very forced construction of a statute, the certificate of the secretary of state was held to be conclusive. But it was said "that it is competent for the legislature to prescribe what shall constitute a record of their proceedings, the manner in which it shall be made, and the effect thereof admits of no question. And, it being a record of the statutes of the state, courts are bound judicially to take notice of their statutes; not because it is the prerogative of courts arbitrarily to deter mine what are the public statutes of the state, nor because they are required or supposed to have a knowledge of those laws, without any evidence of them, but because they have the means, and it is their duty to make themselves acquainted with the records of the legislature, which are in their nature not only conclusive evidence, but the only original evidence of those laws." This is the doctrine that we contend for. Here the revising committee had col· lected the statutes of Connecticut, and the legislature had confirmed their work and declared the compilation to be the public statute laws, and, with certain exceptions, the only public statute laws of the state. And the secretary of state was made the custodian of the revision, and was required to affix his certificate thereto, that it contained the statute laws of the state. The question was, whether the courts would go back of the action of the revisers, as certified by the secretary of state, to see whether a given law was, or was not, repealed. It was held, on the ground indicated above, that it could not be done. But all that we claim is, the courts will take judicial notice of the record proper, whether made such by constitutional or legislative enactment. Two of the judges doubted whether the proper construction was given to the act adopting the revision and providing for its promulgation. Two Iowa cases, Clare v. State, 5 Iowa, 509, and Duncombe v. Prindle, 12 Id. 1, are also generally cited as holding that the legislative journals can not be resorted to, to contradict the enrolled bill; but they do not touch that question. They are simply

authority for impeaching the published statute by the enrolled bill, which is very properly held to be better evidence than that which only purports to be a printed copy of it. The propriety of resorting to the legislative journals was not presented or passed on in either case. The right to impeach the enrolled bill by showing from the legislative journals, that the yeas and nays were not called, seems to be conceded in City of Watertown v. Cady, 20 Wis. 501. In Douglass v. Bank of Mo., 1 Mo. 24, it was contended that the bank was not legally incorporated, because the law, under which it was organized, had not been signed by the president of the legislative council, as the joint rules of the two houses required. It was contended that the signature of the presiding officers was necessary to show that the bill had been duly acted upon and passed by the general assembly. The court answered that, conceding that it would tend to show that fact, "yet the journal must be better and higher testimony;" and, the journals showing that the bill had been regularly passed, it was held to be a valid law without the signature of the president of the council. In this case a part of the journal was preserved in the bill of exceptions, and the court inspected the journal as to other facts. In the subsequent case of State v. McBride, 4 Mo. 303, the supposed defects in the record were raised on demurrer, and it was contended by the attorney-general that the court could not go back of the enrollment, and that, if it could do so in any case, an issue raising the question must be regularly framed; but the court held otherwise, and took judicial notice of the journals. In Pacific R. R. v. The Governor, 23 Mo. 353, a different rule was asserted as to certain alleged irregularities in the passage of a bill over the governor's veto. A majority of the court held that the constitution did not expressly require a journal to be kept, and that the provisions of the constitution as to the formalities, which it was claimed had not been observed, was directory merely. But the court said: "We do not maintain that the legislature can prevent a scrutiny into its aets, which the constitution designed should be made, by any mode of authentication it may adopt." In Bradley v. West, 60 Mo. 33, it was sought to impeach the validity of the limitation law by showing by the printed journals, for the first time in that court, that the bill was not passed by the requisite constitutional majority; but the court held that, insomuch as the question had not been raised in the trial court, the journals could not be inspected for the first time in the appellate court, on the ground that the printed journals were only prima facie evidence of what they contain. It was said that, to permit their introduction for the first time in the Supreme Court, would prevent the opposite party from showing that they were not in accordance with the original legislative rolls; but that objection does not seem to be tenable. The same objection might be raised to the citation of the printed statutes. The journals are declared to be prima facie evidence to the same extent that duly authenticated copies of the original would be. They are duly authenticated copies of the original rolls, just as the printed statute is a duly authenticated copy of the original enrolled bills. If the court may go behind the printed statute and inspect the enrolled bills, it may, with equal propriety, go behind the printed journals and inspect the original legislative rolls. And, where it inspects a copy of the record, it would certainly not be precluded from going further and inspecting the record itself, if necessary. It takes judicial notice, not of authenticated copies of the record, but of the record itself, and will take any steps necessary to ascertain what that record contains.

The course of decisions on this question in New York does not run entirely smooth. In Thomas v. Dakin, 22 Wend. 9 it was conceded by both sides at the bar that the objection must be raised by plea, and two of the judges who deliv. ered opinions favored that view; but the question was not passed upon by the court. In Warner v. Beers, 23 Wend. 103, various opinions were expressed on this subject; but it was not passed upon by the court. The president of the senate and Senator Verplanck were of the opinion that, in respect to bills required to be passed by a two-thirds majority, inquiry might be made into the number of votes given for them; but they denied that such inquiry could be made by a jury, holding that the court must inspect the legislative record. The chancellor thought the objection must be raised by plea. Senator Root held that the objection was properly raised by demurrer, on the ground that nul tiel record could not be pleaded against a public statute. He contended that it was the duty of the court to inspect the legislative journals, to determine whether constitu

tional requirements, in the passage of the law, had been complied with. In Hunt v. Van Alstyne, 25 Wend. 605, there was a special plea that the act there in question was not passed by a constitutional majority; but, the suit being in the name of the president of the bank, and the declaration containing common counts, it was held that the plea was bad.

In People v. Purdy, 2 Hill, Mr. Justice Bronson inspected the legislative journals, as well as the certificate of the presiding officers of the two houses, and held that the bill had not been passed by a two-thirds majority. The other judges held that a majority vote was sufficient to pass the bill. On appeal to the court of errors (4 Hill. 390), the judgment was reversed, and the position of Judge Bronson sustained, by a vote of 13 to 11. Afterwards, in delivering the opinion of the court in De Bow v. The People, 1 Denio, 11, Bronson, Ch. J., said. "It is now well settled that it is the business of the court to determine what is statute, as well as common law; and, for that purpose, the judges may and should, if necessary, look beyond the printed statute-book, and examine the original engrossed bills on file in the office of the secretary of state; and it seems that the journals kept by the two houses may also be consulted." This last case was approved in Commercial Bank v. Sparrow, 2 Denio, 97. In The People v. Supervisors, 8 N. Y. 317, it was urged against the act then in question that, on the final passage, the ayes and noes were not taken; that the ayes and noes were not entered on the journal, and that three-fifths of the members elected were not present at its passage. The court held that, as the pleadings did not distinctly allege these defects in the mode of the passage of the bill, they could not be raised. But the case seems to be full authority for the judicial inspection of legislative journals, nevertheless; for the court in this case, notwithstanding the supposed defects in the pleadings, did inspect the journals, and found that the action of the legislature was formal in every particular, and that the requisite number of members were present when it was put on its final passage. It was further held that the court could go behind the certificate of the presiding officer, and show that the requisite number of members were or were not present on the passage of a bill, and that this might "be shown from the journals or other evidence of an equally satisfactory character." The provision that the ayes and noes should be entered on the journal on the final passage of a bill, was held to be directory merely. In The People v. Devlin, 33 N. Y. 269, it was declared that the legislative journals were not legitimate evidence to impeach a public statute, and this remarkable assertion was made: "To impeach the force and effect of a solemn statute duly certified, no authority can be found within the limits of my research to admit them to be legitimate evidence; but much authority may be found to the contrary." Which only proves, the research must have been very limited. In The People v. Commissioners, 54 N. Y. 276, it was held that no issue could be framed upon an allegation as to the existence of a law, and that, "when it is necessary to inquire by what vote a law was, the judges are to determine from the printed statutes, or from the laws on file in the secretary of state's office, whether the requisite vote was received," and that, upon such inquiry the printed volume is presumptively correct, and the original act is conclusive." And, to the same effect see State v. Young, 32 N. J. L. 29; Green v. Weller, 32 Miss. 685; Broadnax v. Groom, 64 N. C.; Lottery Co. v. Richoux, 23 La. Ann. 743; Whited v. Lewis, 25 La. Ann, 568; Evans v. Brown, 30 Ind. 514 (overruling Skinner v. Deming, 2 Carter, 558; Coleman v. Dobbins, 8 Ind. 156); Blessing v. Galveston, 42 Tex. 641; Sherman v. Story, 30 Cal. 233; Swan v. Buck, 40 Miss. 268; Speer v. Plank Road Co., 22 Penn. St. 376.

It will be seen that the authorities are nearly uniform in holding that the court must take judicial notice of public laws, and that no issue of fact can be made up and tried as to their existence. Indeed, the supreme court of Illinois seems to be the only one that now adheres to the doctrine that the existence of a law, when drawn in question, is a fact to be put in issue and tried like any other fact; and this doctrine is comparatively new, even in Illinois, having been first announced in Ill. Cent. R. R. v. Wren, 43 Ill. 77, where it was said: "If counsel say the journal shows a law to have been passed without calling the yeas and nays, let them make the requisite proof of that fact by means of legislative journals, and introduce that proof into the record." While it is true that in all, or nearly all, of the preceding cases in that court, in which this question was presented, the objection was made in the

court below, and, in many of them, parts of the journal were preserved in the record, yet it was nowhere intimated that such a course was necessary, and the court almost uniformly went outside of the record and inspected the legislative proceedings. See People v. Campbell, 3 Gilm. 466; Spangler v. Jacoby, 14 Ill. 297 (where the cases of State v. McBride, 4 Mo. 303; Green v. Graves, 1 Doug. (Mich.), were cited with approval); Turley v. County of Logan, 17 Ill. 151; Prescott v. Board of Trustees, 19 Ill. 324, where, referring to the act in controversy, the court said: "Such an act is to be found in the statute-book; but in reality there is no such law in existence, and never has been. Its history is correctly stated in the agreed case, as we have ascertained by a careful examination, not only of the printed journal, but of the original manuscript-journal of the session of 1851." In People v. Starne, 35 Ill. 121, the right to inspect the record was asserted, and numerous cases where the same doctrine was laid down, were cited with approval. And, referring to the remark in Eld v. Gorham, 20 Conn. 9, that the inspection of the journal would be exceedingly inconvenient, from a want of access to those sources of information, the court clearly indicates that, though inconvenient, the inspection would be made in a proper case. The rule announced in R. R. Co. v. Wren, supra, has been adhered to in subsequent cases. Grob v. Cushman, 45 Ill. 124; People v. De Wolf, 62 Ill. 253. M. A. L.

CORRESPONDENCE.

USURY LAW IN NEW YORK.

To the Editor of the Central Law Journal:

A few days since a petition, signed by names representing several hundred millions of capital, was presented in the Assembly at Albany by a merchant of New York City, a venerable member of the legislature, asking for the repeal of the usury laws, so far at least as they work a forfeiture of the debt or loan, and to substitute therefor a provision that the excess over the legal rate of interest "may be recovered from the person or corporation so taking or receiving the same; provided that such action is commenced within two years from the time the excess in said transaction occurred." Several attempts during the past ten years have been made to repeal or modify the New York usury laws, but in vain. We have always taken strenuous grounds against this law; and when the question was under discussion in New York, and in some other states, in 1870, we expressed our views at great length in a lecture delivered in May of that year before the Brooklyn Law Club. At that time we reviewed the law of usury from the first act under Henry VII. (1488), down to the statute of New York, and the working of the system. We have ever held to the opinion that, in this age of large dealings, of changing commodities, money is as much a merchantable article as silks, or dry goods, and that being the case, it is worth what it will bring. It does, and always will find its level, financially speaking, like butter or cheese. Usury, as such, is simply a relic of the past ages, and retards and damages, in a large measure, the business-thrift at the present day, particularly where a law like that of New York prevails.

The essence of the contract of bottomry and respondentia is, that the lender takes the risk, and is thus entitled to the marine interest. This commercial usage is sanctioned by the custom or law of most every country. There is, it will be observed, a distinction made between such cases and those of personal risk, of the debtors being able to pay; if anything be paid for such risk, it is usurious; and yet, where pecuniary risk is taken in loans, it might excite wonder in the minds of the curious to know wherein the metaphysical scissors of the upholder of this law could be inserted to demonstrate the difference, in fact, between the risk taken by the one and the other. Under the common law,

and in the age when nothing was considered honorable but the plow and the sword, it may be readily imagined how thoroughly the popular mind became imbued with the sentiment, that usury was a mortal sin. The supposed policy of the usury laws, in modern times, is to protect necessity against avarice; and Dr. Adam Smith somewhere observes that, if the legal rate of interest be fixed at a high rate, the greater portion of the money of the country would be lent to prodigals.

With respect to the efficacy of protecting men against themselves in such matters, however desirable the system may be, it is impracticable, unless by placing the parties under the guardianship of friends; and we submit that those who need this kind of protection are very few; and as to Dr. Smith's theory, we would answer that the moneyed man would never lend his wealth to prodigals without ample security for the payment; nor would the prodigal be likely to pay exorbitant rates when the desired funds could be procured at a lower price. Money will always find its level, like other commodities. Those who will consider things beyond their names, will find that money, as well as all other commodities, is liable to the same change and inequality, and the rate of money is no more capable of being regulated than the price of land; because, says our able commentator, in addition to the quick changes that happen in trade, this too must be added, that money may be carried in or out of the country, while land can not. And Jeremy Bentham declares, that the idea of fixing one rate of interest for every kind of security is as absurd, as if the law were to fix the same price for all horses.

In 1816 Lord Brougham enunciated the principle that the repeal of all usury laws was a measure perfectly safe, and calculated to afford the greatest measure of relief, and innoxious to the borrower, the lender, and to the state. As early as 1834, in Massachuetts, a statutory modification of the usury law of that state was effected. In New York, it seems eminently desirable that some reform be inaugurated, if not by a total abolition of the whole law of usury, at least as far as to eradicate the clause whereby a forfeiture of the principal sum may result from taking more than seven per centum interest. But four or five states have the same laws as that of New York; New Jersey, North Carolina, Virginia and Florida, we believe, are among the number.

In New York, instead of growing more liberal and advanced on this question, as long ago as 1837, the legislature of that state passed the present law, which is far more rigorous and severe than the law which existed prior to that date. The defence of usury is, and has for twenty-five years been, considered unconscionable by the courts, and fortunes are yearly made by violating the law. In Curtis v. Leavitt, 15, N. Y. 151, Brown, J., declares usury law to be a "barbarous act," unworthy the age and country where it is found. In the following cases may be found many questions of importance. Stores v. Coe, 11 Barb. 80; Condit v. Baldwin, 21 N. Y. 219; Marvine v. Hymers, 12 N. Y. 223; Heath v. Cook, 7 Allen, 59; Nichols v. Fearson, 7 Peters, 103; The National Bank of the Metropolis v. Orenth, 48 Barb.

The statutes of some of the states have wisely provided that a greater rate than simple interest may be recovered if specified in writing, as in Michigan and Illinois, which rule seems far more advantageous to trade than that of New York. Such a reform in the latter state would, without doubt, work beneficent results, as the community, commercial men and the courts would then respect and uphold the law; and, as we believe with Bacon, it is wiser to mitigate usury by declaration than to suffer it to rage by connivance. We would like, and hope to see, echoed from the West,

BAKER'S SUPPLEMENT.-Supplement to Riddle's Treatise on the Law and Practice of Supplementary Proceedings; Adapted for Use in all the States and Territories. By JOHN F. BAKER, author of a "Treatise on the Law of Manufacturing Corporations," etc. New York: Diossy & Company. 1877.

This is a small, but useful, treatise of over one hundred pages, and has been compiled for the purpose of setting forth the changes in the laws and decisions of the courts in the different states, since the appearance of Mr. Riddle's work in 1866. The lapse of a decade has wrought considerable change in this branch of the law, and the present compilation will be of value to the profession, second only to what a revision of the larger work would have been. The practice in supplementary proceedings in New York is treated of, for the most part, by the author; still, the references to the decisions under the statutes of the other states make the work of more than local value. So far as the body of the book is concerned, it has been prepared with care and judgment; but the author appears to have left the making of the index and table of contents to some subordinate, whose incapacity is too glaring to be overlooked. For example, under section 2, which is entitled "When a watch can not be taken in supplementary proceedings," the rather extraneous subjects of taxes, earnings, moneys received after injunction, funds reached through equity, and damages for levying on exempted property, appear to be considered.

TEXAS REPORTS, VOL. 44. Cases argued and determined in the Supreme Court of the State of Texas during the latter part of the Tyler Term, 1875, and the first part of the Galveston Term, 1876. Reported by TERRELL & WALKER. Vol. 44. Houston, Texas: E. H. Cushing, Publisher. 1876.

The decisions here presented were rendered in the supreme court of the state of Texas, prior to the adoption of the constitution of April 18, 1876, when that court was the court of last resort for the state, having both civil and criminal jurisdiction. The court, as constituted then, consisted of five judges-Hon. O. M. Roberts, Chief Justice, and Hon. R. A. Reeves, Hon. George F. Moore, Hon. Robert S. Gould, and Hon. John Ireland, Associate Justices. Out of this court, by the new constitution, were created two courts, called the Supreme Court and the Court of Appeals, and having exclusive appellative jurisdiction of civil and criminal cases respectively. The former chief justice, and Judges Moore and Gould, form the new Supreme Court, the Court of Appeals being composed of Hon. M. D. Ector, chief justice, and John P. White and C. M. Winckler, associate justices. The present volume contains over seven hundred pages, and nearly three hundred cases are reported in full. Five former decisions are expressly overruled, viz.: Gault v. Goldthwaite, 34 Tex. 104: Herrington v. Williams, 31 Tex. 417; Murray v. The State, 34 Tex. 341; Warren v. Wallis, 38 Tex. 22; and Taylor v. Bonner, 38 Tex. 537. Six prior adjudications are modified, and two cases re-affirmed. The book is well bound, and the cases well edited, but the paper is bad and the printing still worse. Among the leading cases are the following:

CUMULATIVE PUNISHMENT-Prince v. The State, p. 480.Opinion by REEVES, J. In Texas, the courts have no

authority to fix the commencement of a term in the penitentiary at the expiration of another term. Courts of the highest authority have differed on the question as to whether one term of imprisonment was to commence on the termination of the punishment on another charge; or whether the terms should commence from the judgment and sentence of conviction and run concurrently. The former is maintained in Connecticut, Pennsylvania, Massachusetts and California, and, perhaps, other States. State v. Smith, 5 Day, 175; Mills v. The Commonwealth, 13 Penn St. 631; Kite v. The Commonwealth, 11 Met. 581; The People v. Forbes, 22 Cal. 135. On the contrary, it was held by the supreme court of Indiana, in Miller v. Allen, 11 Ind., 389, that, in the absence of a statutory provision authorizing it to be done, the court had no power to order a term of imprisonment in the penitentiary to commence at a future period of time. The revised statutes of New York, as cited by the supreme court of California, in People v. Forbes, 22 Cal. 135, provide that, in case of two or more convictions before sentence on either, the term of impris onment upon the second or subsequent conviction shall commence at the termination of the previous term of imprisonment. The criminal code of Kentucky contains substantially the same provisions. Before the Kentucky code was adopted, the court of appeals of that state held that the court had no power, independently of a statute, to make one term of imprisonment commence at the expiration of another. James v. Ward, 2 Met. (Ky.) 271. In that case the court, referring to the cases at common law, where the prisoner was sentenced to several terms of imprisonment, one to commence at the conclusion of another, said: "But it may be remembered that, in all these cases, the punishment by imprisonment was by law, at the discretion of the court. The time that the prisoner was to be confined was not determined by the jury; but upon his being found guilty of the offenses contained in the indictment, his punishment was discretionary with the court, and the term of his imprisonment was fixed by it. The court having the power to prescribe the length of time the imprisonment was to continue, might sentence the pris oner to several terms of imprisonment in succession, (where he was charged with several offenses), because it could inflict the same amount of punishment upon him in each case separately." See Rex v. Wilkes, 3 Burr. 325. The correct rule in the opinion of this court is that enunciated by the courts of Indiana and Kentucky in the cases referred to.

WHAT AMOUNTS TO AN ASSAULT-McKay v. The State, p. 43.-Opinion by ROBERTS, C. J. Under the Texas code the pointing by one person of an unloaded pistol at another within shooting distance, accompanied with an order to kneel down, which, through fear, is obeyed, does not amount to an assault. It was contended that the mere pointing of a pistol did not constitute an offense; but, if it is pointed and accompanied by acts and threats that caused feelings of constraint, shame, etc., then an injury is inflicted, and the offense becomes complete. This construction, it was argued, is in harmony with the authorities of other states, which seem to hold that there must be some adaptation of the means to the end, and it is enough if this adaptation be apparent, so as to impress or alarm a person of ordinary reason. 2 Whar. C. L., secs. 1,244, 2,694; Kemble v. State, 32 Ind. 220; Mullin v. State, 45 Ala. 43; Taver v. State, 43 Ala. 354; Johnson v. State, 26 Ga. 611; Allen v. State, 28 Ga. 395; Com. v. McDonald, 5 Cush. 365; State v. Rawles, 65 N. C. 334. In Tennessee and Iowa it is expressly held that pointing an unloaded gun at a party is an assault. State v. Smith, 2 Humph. 457; State v. Sheperd, 10 Ia. 126. The English authorities are not uniform. In 1840, Parke, B., intimated that pointing an unloaded gun was an assault. Rex v. George, 9 C. & C. 483, 38 Eng. C. L. R. 288. During the same year, a contrary ruling was made in a civil action. Blake v. Bernard, 38 Eng. C. L. 315. In 1843, a doubt was expressed upon the point, R. v. Baker, 47 Eng. C. 253, and în 1844, Tindall, C. J., held directly that it is an assault only when the pistol pointed is loaded. R. v. June, 47 Eng. C. L. 529. Mr. Wharton, in the first edition of his work on Criminal Law, lays down the rule one way, 10 Iowa, 130, and, in his seventh edition, the other way. Whart. C. L., sec. 1,244, 7th ed. There is a marked difference between the legal injury resulting from the act and intent of the assailant in the attempt to commit a battery, and in the actual injury of shame and fear in the mind of the acsailed, that may have been intended and produced by the act of the assailant. To effect the legal injury indictable

as an assault, the assailant must have the ability to com. mit a battery by physical violence on the person by the means used.

MARRIAGE-DURESS.-Johns v. Johns, p. 40.- Opinion by REEVES, J. A marriage consummated while the man is under arrest for seducing the woman, and on the advice of the officers of the law and bystanders that, by marrying, the party under arrest would be released from further prosecution, is valid, and can not be avoided under such circumstances ou the ground of duress.

ARREST-SELF-DEFENSE-KILLING POLICEMAN.-Tiner v. The State, p. 128.-Opinion by GOULD, J. A party guilty of a misdemeanor and fired on by a policeman while avoiding arrest, may repel such attack in self-defense by returning the fire, and if in so doing he kill the policeman, such killing would not necessarily be unlawful. Although it is true that it is the duty of every citizen to submit to lawful arrest, there is a broad distinction between resistance and avoidance-between forcible opposition to arrest and merely fleeing from it. State v. Anderson, I Hill (S. C.), 346. There is no rule of law that he who flees from attempted arrest in cases of misdemeanor, thereby forfeits his right to defend his life. It is certainly possible for the officer to commit a felony by shooting at a man, or by other excessive violence, even when attempting his ar rest. Caldwell v. State, 41 Tex. 86. And it would follow that the party thus feloniously assaulted might defend his life. State v. Oliver, 2 Houst. (Del.) 605, referred to in Horrigan and Thompson's Cases on Self-Defense, p. 716. While it is the duty of the officer attempting to arrest to make known his purpose and the capacity in which he acts, if that purpose and capacity are known to the party when arrest is attempted, and the arrest is otherwise lawful, submission to the arrest becomes a duty, and resistance is unjustifiable. State v. Anderson, supra. Rosc. on Ev. 755.

CIVIL PRACTICE - INSTRUCTIONS BASED UPON EVIDENCE.-Where there was an indebtedness from individual members of a firm to a third person, which was to be balanced by indebtedness from such third person to said firm, which settlement left a balance due said firm, and there was a subsequent failure and assignment of said firm, and suit by the assignee on the account, an instruction to the jury that, if they found from the evidence that defendant was a creditor of the members of said firm, or either of them, at the date of said assignment, the plaintiff could not recover, was not warranted by the evidence, and giving it was error. Judgment reversed. Opinion by BAKEWELL, J.-Finney v. Franklin.

MOTION TO SET ASIDE NONSUIT DISCRETION OF TRIAL-COURT.-When the court below overrules a motion to set aside a nonsuit, which motion is based upon the ground that plaintiff, who suffered the nonsuit, was misled and deceived by the misrepresentations of a witness, by whom he expected to establish facts material to his case, and it appears from the record that the trial-court exercised a fair discretion in overruling such motion, its action will not be reversed by the appellate court-especially when plaintiff offered no evidence tending to show that he was entitled to maintain an action as the owner of the notes sued on. Judgment affirmed. Opinion by HAYDEN, J.-Merrill et al. v. Sullivan et al.

HOMESTEADS.-Our homestead act gives to the widow a fee-simple absolute in the homestead of which the husband died seized in fee, not to exceed eighteen square rods, or the value of $3,000, in cities having a population of 40,000 or more. [Citing, Wag. St. pp. 697-8, §§ 1-5; Skouten v. Wood, 57 Mo. 380]. The fact that by § 5, Wag. St. 539, the widow is entitled to one-half the real and personal estate belonging to the husband at the time of his death, and that the half of the personalty exceeds the amount allowed for homestead, does not deprive her of her homestead right. Renting out rooms in the homestead does not

affect the question. [Citing Deere v. Chapman, 25 Ill. 610; Lazell v. Lazell, 8 Allen, 575; Mercier v. Chace, 11 Allen, 194]. Judgment aflirmed. Opinion by BAKEWELL, J.-Albrecht v. Imbs.

JUDGMENT AN ENTIRETY-AGAINST MARRIED WOMAN VOID-MAY BE QUESTIONED COLLATERALLY-EXPIRATION OF EXECUTIONS-REVIVAL OF JUDGMENTS-POSSESSION OF PERSONAL PROPERTY.-A judgment is an entirety, and, when against several defendants, must be good as to all, or void as to all. A judgment is in the nature of a contract-is a specialty-and creates a debt-must be taken against one capable of contracting a debt. Judgment against a married woman is void. [Citing Griffith v. Clark, 18 Md. 460; Moore v. Tappan, 3 Gray, 411; Higgins v. Peltzer, 49 Mo 155.] A void judgment can be questioned collatively, and an execution on such judgment can not authorize a seizure by the officers. [Citing Howard v. Clark, 43 Mo. 344.] An execution expires on the return-day, and in order to be renewed, the indorsement of renewal by the justice must be dated. [Citing Wag. St. 841, § 7.] A constable seizing property by authority of a dead execution, under a void judgment, is not entitled to possession even as against a bona fide purchaser at a sale under a void execution, when such purchaser is in possession. Judgment affirmed. Opinion by BAKEWELL, J.-Dicker v. Lidwell.

CONSTITUTIONAL LAW-PERPETUATION OF EVIDENCE OF TITLE-CONSTRUCTION OF STATUTE-ACT OF MARCH 28, 1873.-"An act to establish evidence of title to real property, to restore the records of the same, and to pro vide for the recording of deeds," approved March 28, 1873, providing that any person claiming an estate or interest in real estate, whose deeds have been lost or destroyed, may apply by petition to the circuit court of the proper county, describing his lands, the nature of his interest therein, and the lost deeds, setting forth the manner in which his deeds were lost or destroyed, praying the court to hear and make record of such evidence as the said petitioner shall produce concerning his alleged interest in said land, and providing for an adjudication of the title accord. ing to the evidence so adduced, instead of making a record of such testimony, is in conflict with section 32, article IV of the Constitution of 1865, which declares that "no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; but, if any subject embraced in the act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed." The act is in violation of the constitutional provision in every aspect. It omits from the title the chief object of the statute, and excludes from the body the purpose most conspicuously displayed in the title. The act is void in so far as it provides for proceedings which are to end in final judgment. The petition is under this act, and prays for a decree of title to the lands described. The parties summoned, on appearing, demurred, for the reason that petition did not state facts sufficient to constitute a cause of action. Demurrer sustained. Judgment affirmed. Opinion by LEWIS, C. J.-In re Goode.

APPEAL-FINAL JUDGMENT.-When the transcript fails to show a final judgmeut in the court below, the writ must be dismissed.-McCoy v. Davidson.

ACTION ON A SPECIAL TAX-BILL.-Although a special tax-bill may include items for which the party or property charged may not be liable, such an error does not invali date the whole tax-bill so as to preclude a recovery for what is properly chargeable against the person or property. [Newman v. Smith, 60 Mo. 292].-The First Nat. Bank v. Amaldia.

PARTNERSHIP-SECURITIES.-A and B were partners in a sewing machine agency, and B sold out to C, taking C's obligation to liquidate the debts of the firm of A and B.