this. See the two opinions of Morton, J., and of Shaw, C. J., after the second trial in Dyer v. Homer, 22 Pick. 253; Butler v. Hildreth, 5 Met. 49, 50; Bailey v. Foster, 9 Pick. 139, recognizes the same doctrine. See also Harvey v. Varney, 98 Mass. 118, where the cases are reviewed and the doctrine adhered to. See also the elaborate opinion of the Chief Justice of Wisconsin, in Clemmens v. Clemmens, 28 Wis. 637, and the well reasoned opinion of the court in Carpenter v. McClure, 39 Vt. 9. See also Springer v. Drosch, 32 Ind. 486; Sherk v, Endress, 3 Watts & S. 255; Neely v. Wood, 10 Yerg. (Tenn.) 486; Douglas v. Dunlap, 10 Ohio, 162; Bobb v. Woodward, 50 Mo. 95; Sumner v. Murphy, 2 Hill (S. C.), 488; Capin v. Pease, 10 Conn. 69; Silverman v. Bullock, 98 Ill.; Hendricks v. Mount, 2 South (N. J.) 738 Maine Sup. Jud. Ct., January 11, 1882. Butler v. Moore. Opinion by Virgin, J. (73 Me. 151.)

RECENT ENGLISH DECISIONS.

PROPERTY ΤΟ BE AC

CHATTEL MORTGAGE - OF QUIRED, INVALID.-A. charged all his present and future personalty to secure to B. any sum or sums he might be indebted to him at the time B. might choose to make use of the charge. Held, that the instrument operated as a charge on such property only as A. was possessed of at the date of the instrument, and was invalid as to any other property. Held also, that the invalidity of one part of the charge did not invalidate the other part. Ch. Div. April 28, 1882. Re D'Epinuel. Opinion by Fry, J. (47 L. T. Rep., N. S. 157.)

HUSBAND-ADUL

DIVORCE WIFE DESERTED BY TERY. A husband, previous to his marriage, obtained from his wife without any reasonable cause an agreement that they should live apart, which they accordingly did, and she subsequently committed adultery. Held, that under the circumstances he had deserted her, and that a petition by him for dissolution of the marriage must be dismissed. Pr. Adm. and Divorce Div., January, 19, 1882. Dagg v. Dagg. Opinion by Hannen, Pres. (47 L. T. Rep., N. S. 132.)

TURE

INSURANCE - MARINE POLICY WARRANTY - CAPFOR SMUGGLING. A time policy of marine insurance enumerated, amongst the perils insured against "men-of-war, enemies, pirates, rovers, thieves, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes and people of what nation, condition or quality soever, barratry of the master and mariners,' but there was a warranty 'free from capture and seizure and the consequences of any attempts thereat." The officers of the plaintiffs' ship, which was insured by this policy, were arrested by Spanish revenue officers for smuggling, and proceedings were taken to procure sentence of condemnation and confiscation of the ship at a Spanish port, and the plaintiffs incurred expenses in resisting these proceedings, and were obliged to pay money to procure the restoration of the ship. In an action on the policy to recover these expenses and payments, held (affirming the judgment of Field and Cave, JJ.), that the underwriters were exempted from liability by the warranty, and the plaintiffs were not entitled to recover as for a loss by barratry. Ct of App., July 1, 1882. Cory v. Burr, Opinions by Brett and Cotton, L. JJ. (47 L. T. Rep., N. S. 181.)

WILL -VOID DIRECTION CAUSING INTESTACY.— A testatrix gave and devised her dwelling-house and premises to trustees, upon trust that they should immediately after her funeral cause the doors and windows of every room thereof (except the kitchen, middle attic and hall) to be well and effectually bricked up from the outside, with the furniture therein, for a

period of twenty years; and from and after that term, the testatrix devised the property to a devisee for life, with remainder to another person in fee. Although the will had been disputed in the Probate Court, the probate was eventually granted. Held, that the directions regarding the blockade must be treated as ineffectual, and that there was intestacy as to the term of twenty years in the property, which must be distributed as undisposed of real and personal estate. Ch. Div. August 2, 1882. Brown v. Burdett. by Bacon, V. C. (47 L. T. Rep., N. S. 94.)

CRIMINAL LAW.

Opinion

(1) The

ABORTION PLEADING - - AMENDMENTS. statute of Vermont against procuring an abortion contains this excepting clause: "Unless the same is necessary to preserve her life." In this case the indictment did not negative the exception, but asserted that the act was done "maliciously and without lawful justification." Held, bad on demurrer; that the exception is so incorporated with the enactment as to constitute a part of the definition of the crime, and should therefore be negatived. Indictments for abortion were held bad for the same defect under like statutes in Missouri and Indiana. State v. Meek, 70 Mo. 355; Bassett v. State, 41 Ind. 303. As illustrative of the same view of indictments for other offenses see Russell v. State, 50 Ind. 174; Kline v. State, 44 Miss. 317; State v. Barker, 18 Vt. 195. These were all indictments under the Sunday law; and they contained no averment that the work was not work of necessity or charity. To the same effect in indictments for different offenses are State v. Tomlinson, 77 N. C. 528; Elkinson v. State, 13 Ga. 435; Commonwealth v. Maxwell, 2 Pick. 138; Rex v. Jarvis, 1 Burr. 148; State v. Butler, 17 Vt. 145. The case State v. Hogdon, 41 Vt. 139, seems to be an exception to the general line of authority, except that the form there adopted was prescribed by the statute. (2) The indictment was not amendable after demurrer, as the defect was not one of form. (3) The statute as to this crime superseded the common law. Vermont Sup. Ct., October Term, 1881. State of Vermont v. Stokes. Opinion by Veazey, J. (54 Vt. 179.)

CONSTITUTIONAL LAW - FEDERAL CONSTITUTION CIVIL RIGHTS AMENDMENTS.- Where a State has been guilty of no violation of the provisions of the thirteenth, fourteenth and fifteenth amendments to the Constitution of the United States, no power is conferred on Congress to punish private individuals, who, acting without any authority from the State, and it may be in defiance of law, invade the rights of the citizen which are protected by such amendments. So where an act of Congress is directed exclusively against the action of individuals, and not of the States, the law is broader than the amendments by which it is attempted to be justified, and is without constitutional warrant. U. S. Circ. Ct., E. D. Texas, July 6, 1882. Le Grand v. United States. Opinion by Woods, J. (12 Fed. Rep. 577.)

EVIDENCE

IRRESPONSIBLE DRUNKENNESS- BURDEN OF PROOF.-On a trial for an assault with a dangerous weapon a defense was irresponsible drunkenness. The court charged that the burden of proving such drunkenness was on the defendant, and he must establish it by a fair preponderance of evidence. Held, no error. As to the matter involved in this instruction there is no little conflict of opinion. By some courts and writers it is maintained that the burden of proof always remains with the prosecution, and hence that where insanity or drunkenness is set up in defense, and evidence offered to sustain the same, sanity or the non

existence of the drunkenness must appear beyond a reasonable doubt. But the rule which has been laid down and acted upon in Minnesota is otherwise, and in accordance with the instruction considered. Bonfanti v. State, 2 Minn. 123 (Gil. 99); State v. Gut, 13 Minn. 341. This rule is sound, and it is supported by adjudications of the highest authority. Commonwealth v. Eddy, 7 Gray, 583; People v. Bell, 49 Cal. 485; Parnell v. Commonwealth, 86 Penn. St. 260; State v. Smith, 53 Mo. 267; State v. Bruce, 48 Iowa, 530; Bond v. State, 23 Ohio St. 349; State v. Lawrence, 57 Me. 574; McNaughton's case, 10 Cl. & F. 200; Regina v. Layton, 4 Cox, C. C. 149. The expression "fair preponderance of evidence" is unobjectionable. It means no more than that the evidence spoken of must fairly preponderate; that is it must preponderate so that the preponderance can be perceived upon fair consideration of the evidence. Minnesota Sup. Ct., June 10, 1882. State of Minnesota v. Grear. Opinion by Berry, J.

EVIDENCE OF SALE OF LIQUORS- UNITED STATES LICENSE- CONSTITUTIONAL LAW.- (1) At the trial of an indictment for the illegal sale of liquors the presiding justice, in connection with evidence tending to show a keeping and selling of liquors, admitted testimony that the defendant had taken out a license from the United States government to sell intoxicating liquors. Held, no error. (2) A statute provided that "evidence of the sale or keeping of intoxicating liquors for sale in any building, place or tenement shall be evidence that the sale or keeping is illegal, and that such premises are nuisances." Held, that this statutory provision was constitutional and valid. Rhode Island Sup. Ct., June 9, 1882. State of Rhode Island v. Mellor. Opinion by Durfee, C. J. (To appear in 13

R. I. Rep.)

ARSON-LEAN-TO UNCONNECTED WITHIN WITH DWELLING-HOUSE NOT DWELLING-HOUSE.- An indictment for arson charged that defendant did "the dwelling-house of one M. there situate, feloniously, willfully and maliciously did set fire to and burn, contrary to the statutes in such case made and provided," etc. It was shown that the fire was set in a lean-to occupied by H. and adjoining the building occupied by M., but having no interior communication with his apartments. Held, that the variance was fatal. It was held in Snyder v. People, 26 Mich. 106, that arson is an offense against the habitation and regards the possession rather than the property, and that the dwelling-house is his dwelling-house who occupies it, whoever may hold the general title, and should be described accordingly. The implication is very clear that any structure which is absolutely beyond the bounds of such occupancy, and is held and occupied by another, and is not connected by any interior communication is not parcel of the other in any sense to warrant saying that a firing of the latter constitutes a firing of the former. The authorities support this implication if they do not go much further. State v. Toole, 29 Const. 342; Commonwealth v. Wade; State v. Tennery, 9 Iowa, 436; Rex v. Egginton, 2 B. & P. 508; Rex v. Gibson, 1 Leach (4th ed.), 357; Glandfield's case, 2 East P. C. 1034; People v. Gates, 15 Wend. 159; 2 Bishop C. P., § 38; Bishop St. C., §§ 280, 282, 283, 285, 287, and authorities cited; 2 East P. C. 508, 494; Hale, P. C., 557, 558; 4 Bl. Comm. 225, 226. The conclusion is obvious and unavoidable. The act of firing in the case at bar was committed on the lean-to; and applying the law to the facts it is seen that the lean-to was "another building," and therefore that the concurrrence of the two facts made necessary by the charge, namely a firing and burning of the same dwellinghouse, was not only left unproved, it was plainly disproved. Michigan Sup. Ct., April 5, 1882. Fairchild v. People of Michigan. Opinion by Graves, C. J.

CRIMINAL

ΤΟ RECOVER

ACTION-PROCEEDING PENALTY NOT.- The Nebraska Criminal Code, section 574, provided in relation to persons licensed to sell liquors thus: "Any person licensed as before provided who shall give or sell any malt, spirituous or vinous liquors, or other intoxicating drink, to any minor, apprentice or servant under 21 years of age, without the consent of the parents, guardian or master thereof, shall forfeit and pay for each offense the sum of $25, for the use of the school fund, to be recovered by the proper action before any justice of the peace of the proper county, upon the complaint of any person who will file with such justice a statement in substance as follows: A. B. complains for the violation of section 574 of the Criminal Code.' And on the proof of the violation of said section, or any part thereof, the justice shall render judgment for the whole amount of fine and costs, and the person so convicted shall be committed to the common jail until the same is paid." Held, that the proceeding provided for was a civil and not a criminal one, and the constitutional guaranties in respect to criminal proceedings did not apply. Blackstone defines a crime or misdemeanor to be “ an act committed or omitted in violation of public law, either forbidding or commanding it." 4 Bl. Comm. 5. This definition however fails in precision, as it fails to distinguish between cases where the punishment of an offense, such as selling liquor in violation of law,is punishable by indictment, or where the proceeding is by an action of debt. An action on a penal statute to recover money as a penalty is a civil action. 1 Bishop Crim. Law, § 43; People v. Hoffman, 3 Mich. 248; Keith v. Tuttle, 28 Me. 326, 335; Indianapolis v. Fair child, Cart. (Ind.) 315; Belcher v. Johnson, I Metc. 148; Buckwater v. United States, 11 S. & R. 193; Rogers v. Alexander, 2 Green, 443; People v. Ontario, 4 Denio, 250. And the action may be in the name of the State; but this does not make the cause a criminal one. Webster v. People, 14 Ill. 365. The true test is to inquire whether the proceeding is by indictment or action; if by indictment the cause is criminal, if by action the cause is civil. Tested by these rules it will be seen at once that this is a civil action. The object is to recover a money judgment, and the fact the law designates a specific amount does not change the character of the action. Nebraska Sup. Ct., April 4, 1882. Mitchell v. State of New York. Opinion by Maxwell, J.

FALSE PRETENSES - FAILURE TO FULFILL PROMISE NOT.- An indictment charged that defendant procured prosecutor's indorsement to a note upon a promise that it would be used to take up and cancel another note of the same amount then about maturing, and upon which the prosecutor was liable as indorser, and that the defendant, instead of using it for this purpose, as he promised to do, procured it to be discounted and used a portion of the proceeds for other purposes. Held not to charge a false pretense. A false pretense to be within the statute must be the assertion of an existing fact, not a promise to perform some act in the future. The man who asserts that he is the owner of a house states a fact, and one that is calculated to give him a credit. But a mere failure to keep a promise is another and very different affair. That occurs whenever a mau fails to pay his note. It is true Gibson, C.J., doubted in Commonwealth v. Burdick, 2 Barr, p. 164, whether every naked lie by which a credit has been gained is not a false pretense within the statute. This doubt has run its course and has long since ceased to disturb the criminal law of this State. Pennsylvania Sup. Ct., February 27, 1882. Commonwealth of Pennsylvania v. Moore. Opinion by Paxson, J.

INDICTMENT COPY MAY BE SUBSTITUTED FOR LOST ONE. Upon a trial for false pretenses, held, that the

In

court had power to substitute a copy of a lost or stolen indictment and put the defendant upon trial. Gananay v. State, 22 Ala. 772, the defendant was indicted, and the cause was continued at several successive terms of the court. At the term at which the cause was called for trial the indictment could not be found, it having been lost or abstracted. The court permitted a copy to be substituted, and the defendant was tried and convicted. It was held by a majority of the court that this was erroneous. It was conceded that the court might order an amendment or substitution of anything which it has the power to make or order to be made; but that, as no power but the grand jury can make an indictment or direct one to be made, the court cannot supply one which has been lost or destroyed. In the case of Bradshaw v. Com., 16 Gratt. (Va.) 507, it was also held that it was error to substitute a copy of an indictment which had been lost or destroyed. The court, in its reasoning, follows the case of Gananay v. State, supra. In State v. Harrison, 10 Yerg. 542, the defendant was indicted, and the indictment was lost or mislaid during the trial. The prosecution moved to make a copy of the indictment apart of the cause. It was held that this might be done if the court acted from its recollection of the contents of the indictment alone, but that a substitution of a copy could not be made upon proof by affidavits, independent of the recollection of the judge, of the contents of the lost instrument. In Mount v. State, 14 Ohio, 295, the indictment was lost or stolen after verdict of guilty. The court say: "It was not indispensable to the sentence that the original indictment should be before the court. If lost or destroyed by accident, or by the fraud or design of the plaintiff in error, or stolen by him or another, and the prosecution were not in fault, its place might have been supplied by a copy like any other record or pleading." In Buckner v. State, 56 Ind. 208, the record showed the following entry: "State of Indiana v. Thomas J. Buckner. Selling without license. Indictment burned." The record did not contain any indictment, and the court said: "If the defendant was tried upon a certified copy of the indictment, that copy constituted a part of the record and should have been contained in the transcript. We must presume that the transcript is complete and perfect." It was held that if the indictment had been destroyed the defendant might hate been tried upon a copy of the record, if it had been recorded. In Bradford v. State, 54 Ala. 230, the defendant was put upon trial upon an indictment. After all the evidence was introduced, and the attorney for the Commonwealth was about to commence his argument to the jury, it was discovered that the indictment had been lost during the trial. Counsel for the defendant consented that the indictment might be substituted, and the trial proceed under the substitute." The trial then proceeded precisely as though the original indictment had not been lost, and the defendant was found guilty. It was held that this was no error; that the court had the inherent power to preserve its records by substitution if necessary; and that, as the defendant had demurred to the indictment, and pleaded not guilty to it, he thereby admitted that it was an indictment. This case does not overrule Gananay v. State, supra, but distinguishes it upon the ground that in that case the defendant had not been arraigned, and had not pleaded to the indictment. In State v. Simpson, 67 Mo. 647, the defendant was tried upon a copy of an indictment which was substituted for the original, which was lost. The court approve of the practice, but reverse the case upon the ground that there was no evidence that the indictment had ever been made of record. The power to substitute a copy of a lost indictment is recognised in 1

Bishop, Crim. Proc., § 1215. Iowa Sup. Ct. April 19, 1882. State of Iowa v. Rivers. Opinion by Rothrock, J.

NEW YORK STATE BAR ASSOCIATION.

APPOINTMENT OF CLERK.

The following is a statement of a resolution of the Executive Committee, adopted by correspondence: Resolved, That Henry C. Stryker, Esq., of the city of Albany, be and is appointed clerk of the New York State Bar Association. That his duties shall be as follows, viz. To take charge of the Association's rooms in the New Capitol building at Albany, and keep the same open (Sundays excepted) from nine o'clock in the morning until nine o'clock in the evening during the annual session of the Legislature, and, during the rest of the year for the usual business hours, aud for such other hours as he may be notified of by the president, the chairman of the Executive Committee, the chairman of any other committee, or any of the other officers of the Association. In said rooms to carefully classify and safely preserve all the Association's books, records, documents, papers, correspondence, reports, accounts, essays, furniture and other personal property (except the current books and accounts of the treasurer); to assist by correspondence, conference and otherwise, all the officers, committees and members of the Association in all matters within its scope and objects; to foster the growth and usefulness of the Association, and generally to render such other services as may be directed by the president, or the Executive Committee, oe the chairman thereof.

Resolved, That the salary of the clerk of the Association be at the rate of five hundred dollars a year, to be paid quarterly by the treasurer upon the certificate of the secretary of the executive Committee.

NEW BOOKS AND NEW EDITIONS.

NOBLE'S MARRIAGE AND DIVORCE LAWS.

A compendium and comparative view of the thirty-eight State Laws of Marriage and Divorce in the United States (in 1882). The Conflict and the Remedy. By Charles Noble. New York: Baker, Voorhis & Co., 1882. Pp. 89, vi This is an essay at the Law School of the University of the city of New York, for which a prize was recently awarded. It displays a great amount of research, the power of very intelligent statement, and very excellent seuse and reason. It does its young author credit. Indeed, it would be difficult to imagine a more excellent presentation of the topic. The remedy suggested is uniformity, to be reached by a National Law to be authorized by a Constitutional amendment. It will be a long day before that will come to pass.

NOTES.

THE American Law Review for November contains

the following leading articles: Charter-Parties, by Orlando F. Bump; Impeachable offenses under the Constitution of the United States, by G. Willett Van Nest; Discriminate Traffic Rates, by Adelbert Hamilton. The 17th volume of West Virginia Reports contains 33 cases and covers 927 pages, or an average of 28 pages to a case! Vice-Chancellor Wickens amused himself with binding books, at which trade he was an adept, and had all the elaborate tools and machines to expedite his work, and he turned out his volumes in masterly style. Curiosities of Law and Lawyers.

The Albany Law Journal.

AT

ALBANY, NOVEMBER 25, 1882.

CURRENT TOPICS.

T last we are able to offer to our subscribers a "General Index and Digest of the Albany Law Journal, volumes I to XX inclusive." This work has been prepared with great care, fidelity and intelligence, by Mr. Robert R. Newell, of Boston, the editor of the "Index-Reporter." It is divided into two parts, a General-Index, and a Case-Index. It covers 278 pages of double columns, and its page is of uniform size with the JOURNAL. It will probably be esteemed an almost indispensable companion to this journal, and will render easily accessible and available the vast amount of legal reporting and comment which is contained in our first twenty volumes. The price is $3.00, and it can of course be obtained from our publishers.

We have read with interest the address of Judge Christian, of Virginia, on the recent death of Judge Moncure, late president of the Virginia Court of Appeals. This is a venerable and respected name in American jurisprudence. He was for more than thirty years a judge of the Court of Appeals, and for fifteen years its president, a man of profound learning, incorruptible integrity, and the most admirable personal traits. His opinions extend from the 7th to the 33d of Grattan's Reports. Judge Christian says of him, among other things: "Such was his learning and accuracy as a lawyer, and so did he impress himself upon that body of great men and great lawyers (the Legislature of 1849-50), that he was placed on the committee for the revision of the statute law of the State, and every lawyer before me knows how diligently and faithfully he performed that great work of revision, and brought out of chaos and confusion, and aided by his great associates produced the most compact and comprehensive system of statute law to be found in any State of the Union." Again he speaks of him as "of all men I ever met on this earth the most devoted and earnest lover of truth for truth's sake," affectionate, magnanimous, "without prejudice as well as without fear," of what Tennyson calls a "simplicity sublime," of "christian faith as simple as that of a little child." Suffering greatly in his last days he feared that he was "sinning against his Heavenly Father by his impatience to die and go at once to his eternal rest." He seems to have been that sublimest of earthly figures, a good judge. Virginia, always renowned for great men, and always eager to honor their memory, may well cherish the memory and example of her venerable Judge Moncure.

We regret that we have passed the word "assault" in our forthcoming "Common Words and Phrases." VOL. 26-No. 22.

We should have liked to include the case of People v. Emmons, California Supreme Court, October 5, 1882, 10 Pac. C. L. J. 235, which holds that to throw a Chinaman (named Ah Wee) out of a thirdstory window is an "assault by means of force likely to produce great bodily injury." We should say it would be apt to produce broken China. The court observe: "If such an act of violence had resulted in the death of the party assaulted, the perpetrators of it would have been guilty, at least, of manslaughter, and perhaps of murder under the law. If one person maliciously and with premeditation seizes another and throws him out of a thirdstory window twenty-five feet from the ground, and thereby causes his death, or if with the same purpose and intent, one casts another into the sea, whereby the latter is drowned, there is no reason why the perpetrator of such an act should not be guilty of murder in the same degree that he would if a pistol or knife were used, as the means of producing death.”

British jurisprudence has come to a sad pass when the leading English law journals speak irreverently of the procession of the judges and the wigs of the lawyers. The Law Times says: "Assuredly no one will regret that the procession of the lord chancellor and judges through Westminster hall has been seen for the last time. If there were nothing else to be said against it, the one fact that it affords the populace an opportunity to applaud particular judges is enough to condemn it." A correspondent sends the Law Journal an account of his dream about legal wigs, which is very funny but awfully irreverent. The editor of the Journal remarks: "When there is less hair on the top of his head his views as to wigs may change, unless the new law courts are impervious to draughts." If this is the purpose of the wigs, attorneys and solicitors as well as bar risters ought to wear them, for their business is much exposed to rough drafts.

In connection with our recent comments on the comparative amount of litigation in this State and in England, we call attention to the following from the last number of the London Law Times: "The cause-lists for the current sittings promise plenty of work for the judges between now and Christmas. In the Court of Appeal 254 appeals are down for hearing; there are 777 causes in the Chancery Division, of which about 100 are summonses which have been adjourned from chambers into court; and in the Queen's Bench Division there are about 600 causes entered. In the last-mentioned list over 100 causes are marked for special juries, while no fewer than 120 are down for trial before a judge without a jury. The majority of the latter about ninety - are 'transferred causes' that have come from the Chancery Division." Our lawyers would think they were starving if they could make only such a meager showing, for example in the city of New York.

The great London libel suit of Belt, the sculptor, against Lawes, the publisher of Vanity Fair, on which we commented last summer, and the trial of which was adjourned, was taken up again on the 3d instant, before Baron Huddleston and a special jury The alleged libel consisted in the assertion that the sculptor was an impostor, taking the credit of works entirely executed by his subordinate, Verhyden. The defense is justification. Counsel for plaintiff offer to prove that Verhyden "never touched the bust of any lady;" which is ambiguous, to say the least. The trial is the fashionable diversion of the hour, and the court-room is crowded with people quite too ready to applaud. Upon a manifestation of this sort his lordship threatened to clear the court, observing: "That will be very convenient for some of us, for it will cool the court." Hereupon there was "(Laughter)," but we do not observe that his lordship threatened to clear the court on that account. There seems to be a distinction between applause and laughter. Notwithstanding the proverbial gravity of the English, it is noticeable that they are very easily provoked to laughter. They have always applauded our poorest humorists, such as Artemus Ward, and we have never seen any thing from their judges, except some of the wit of Lord Coleridge and some of the sarcasms of Master of the Rolls Jessel, that would excite the ripple of a smile in an American court. We have sometimes wondered if the wigs and gowns had not something to do with the hysteria of their courtrooms; the sense of incongruity, such as we feel at a jest at a funeral, may explain the ease with which their risibility is excited.

A correspondent writes us: "I observe in your "I observe in your last number you mention Vermont as one of the States in which the chief justiceship rotates. This is not correct. The chief justice is elected bi-ennially, with all the other judges, by the Legislature. But I am aware of no instance in the history of the State, certainly there is none in the last fifty years, in which the chief justice has failed to be re-elected, until he died or declined re-election, nor any in which the vacancy, when it occurred, was not filled by the election of the senior judge in commission."

dealings in options, although so contrary to public policy as to render invalid negotiable paper based upon them, are not "gaming" or "betting," within the statute. Cooley, J., said: "There is no doubt that a purchase of options is opposed to public policy by reason of its demoralizing character, and that any contract which has no other consideration is void in law. This was in effect decided in Gregory v. Wendell, 39 Mich. 337; S. C., 40 id. 432. But that decision was grounded on general principles of the common law; and the statute now brought to

our attention was not relied upon or referred to by counsel or by the court. It was shown in that case that such a purchase was in the nature of a gambling contract, and that the evils of ordinary gaming inhered in it. But it was not said or intimated that it was gaming in the ordinary sense of that term, or that the parties to it could be considered as parties to a bet or wager. And as the statute now invoked was not then before the court, nothing said in the opinions can be considered as expressly designed to throw light upon its construction. In common speech gaming is applied to play with stakes at cards, dice, or other contrivance, to see which shall be the winner and which the loser. A contract for the purchase of options is not gaming within this meaning of the term. In form it is the purchase and sale of a commodity to be delivered at a future day, and it only resembles gaming in that the parties take a chance of gain or loss without intending that the sale which they nominally make shall ever become a legitimate business transaction. Betting in common speech means the putting of a certain sum of money or other valuable thing at stake on the happening or not happening of some uncertain event. A purchase of options is not betting in this sense, though it resembles it in the fact that risks are taken on uncertain events, and that the tendency to those engaged in it is demoralizing. The statute in terms forbids betting and gaming, and it contains penal provisions for the punishment of those who engage in them; but penal statutes are not enlarged by intendment, and acts not expressly forbidden by them cannot be reached merely because of their resemblance, or because they may be equally and in the same way demoralizing and injurious. The principles of the common law adapt themselves to new conditions of things, and may defeat a demoralizing transaction or contract though it be the first of its kind; but penal statutes are not flexible, and they can be made to embrace nothing which was not within the intent of the Legislature in passing them. If other things equally injurious seem to deserve the same punishment, the Legislature alone can provide for it. We have no idea that the purchase of options was in the mind of the Legislature when passing the statute against betting or gaming. We have not overlooked what is said in Barnard v. Backhaus, 52 Wis. 593, regarding a similar statute, but we do not understand the remarks of the court as expressive of an opinion that such a transactions is betting or gaming within the meaning of the statute. The statute is referred to as indicating a general policy opposed to all such dealings; and we agree in what is said on that subject. It is in the light of that policy, evidenced by the common law as well as by the statute, that we hold the note in suit to have been given without consideration; but when the defense of invalidity is interposed after the note has been in the hands of a bona fide holder, the defendants must place their reliance upon the statute exclusively, it being admitted that the mere fact that the note was void in its inception is not suff