like ours, squarely sustaining the ruling of the learned trial court. Some things have been said in some of the cases cited, arising under somewhat similar constitutional provisions, that may seem to support it. Among these are Donahue v. Richards, 38 Me. 379; Ferriter v. Tyler, 48 Vt. 444; Moore v. Monroe, 64 Iowa, 367; Millard v. Board, 121 Ill. 297. The Maine case, largely involving other considerations, is based, in part, upon decisions under Constitutions widely differing from ours, and was decided under a Constitution containing none of the provisious upon which especial stress is here laid. The same is partially true of the Vermont case. The same is true in a limited sense of the Iowa and Illinois cases, and in neither of which is any adjudication cited. The following cases seem to be in harmony with the conclusions we have reached: State v. Hallock, 16 Nev. 373; Board v. Minor, 23 Ohio St. 211; State v. White, 82 Ind. 278; Spencer v. School Dist., supra; Dorton v. Hearn, supra; Scofield v. School Dist., supra, and Weir v. Day, supra. They are moreover in harmony with prior decisions of this court. Morrow v. Wood, 35 Wis. 59; School Dist. v. Arnold, supra. In the Nevada case the decision was adverse to the use of the Catholic Bible. We deem it unnecessary to enter upon an extended analysis of the numerous adjudications cited, since the constitutional provisions here involved rest upon us with ar imperative command. of worship, or to attend upon the same, and more especially to show that our common schools, as one of the institutions of the State created by the Constitu tion, stand in all these respects, like any other institution of the State, completely excluded from all possible connection or alliance with religion or religious worship, or with any thing of a religious character, and guarded by the constitutional prohibition that no sectarian instruction shall be allowed therein." They show also that the common schools are free to all alike, to all nationalities, to all sects of religion, to all ranks of society, and to all complexions. For these equal privileges and rights of instruction in them, all are taxed equally and proportionately. The constitu tional name, 66 common schools," expresses their equality and universal patronage and support. Common schools are not common as being low in character or grade, but common to all alike, to everybody, and to all sects or denominations of religion, but without bringing religion into them. The common schools, like all the other institutions of the State, are protected by the Constitution from all "control or interference with the rights of conscience," and from all prefer ences given by law to any religious establishments or modes of worship. As the State can have nothing to do with religion except to protect every one in the enjoyment of his own, so the common schools can have nothing to do with religion in any respect whatever. The unanimous result of our deliberations 18 as di- They are as completely secular as any of the other inrected by Mr. Justice Lyon. ** * ORTON, J. I must fully and cordially concur in the decision and in the opinions of Justices Lyon and Cassoday in this case. It is not needful that any other opinion should be written, but I thought it proper to state briefly some of the reasons which have induced such concurrence in the decision. "The right of every man to worship Almighty God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship; * nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship." Const., art. 1, § 18. No religious test shall ever be required as a qualification for any office of public trust under the State, and no person shall be rendered incompetent to give evidence in any court of law or equity, in consequence of his opinions on the subject of religion." Id., $ 19. The interest of the school fund, "and all other revenues derived from the school lands, shall be exclusively applied," etc., " to the support and maintenauce of common schools in each school district," etc. Id., art. 10, § 2, subd. 1. "The Legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free, and without charge for tuition, to all children between the ages of four and twenty years; and no sectarian instruction shall be allowed therein." Id., § 3. "Each town and city shall be required to raise by tax annually for the support of commou schools therein a sum not less," etc. Id., § 4. "Provision shall be made by law for the distribution of the income of the school fund among the several towns and cities of the State for the support of common schools therein," etc. Id., § 5. These provisions of the Constitution are cited together to show how completely this State, as a civil government, and all its civil institutions, are divorced from all possible connection or alliance with any and all religions, religious worship, religious establishments or modes of worship, and with everything of a religious character or appertaining to religion; and to show how completely all are protected in their religion and rights of conscience, and that no one shall ever be taxed or compelled to support any religion or place stitutions of the State, in which all the people alike have equal rights and privileges. The people cannot be taxed for religion in schools more than anywhere else. Religious instruction in the common schools is as clearly prohibited by these general clauses of the Constitution as religious instruction or worship in any other department of State supported by the revenues derived from taxation. The clause that " no sectarian instruction shall be allowed therein," was inserted ex industria to exclude everything (pertaining to religion. They are called by those who wish to have not only religion, but their own religion, taught therein, "Godless schools." They are Godless, and the educational department of the government is Godless, in the same sense the execu tive, legislative and administrative departments are Godless. So long as our Constitution remains as it is no one's religion can be taught in our common schools. By religion I mean religion as a system, not religiou in the sense of natural law. Religion in the latter sense is the source of all law and government, justice and truth. Religion, as a system of belief, cannot be taught without offense to those who have their own peculiar views of religion, no more than it can be without offense to the different sects of religion. How can religion, in this sense, be taught in the common schools without taxing the people for or on account of it? The only object, purpose or use for taxation by law in this State must be exclusively secular. There is no such source and cause of strife, quarrel, fights, malignant opposition, persecution and war, and all evil in the State, as religion. Let it once enter into our civil affairs, our government would soon be destroyed. Let it once enter into our common schools, they would be destroyed. Those who made our Constitution saw this, and used the most apt and comprehensive language in it to prevent such a catastrophe. It is said, if reading the Protestant version of the Bible in school is offensive to the parents of some of the scholars, and antagonistic to their own religious views, their children can retire. They ought not to be compelled to go out of the school for such a reason for one moment. The suggestion itself concedes the whole argument. That version of the Bible is hostile to the belief of many who are taxed to support the common schools, and who have equal rights and privileges in them. It is a source of religious and sectarian strife. That is enough. It violates the letter and the spirit of the Constitution. No State Constitution ever existed that so completely excludes and precludes the possibility of religious strife in the civil affairs of the State, and yet so fully protects all alike in the enjoyment of their own religion. All sects and denominations may teach the people their own doctrines in all proper places. Our Constitution protects all and favors none. But they must keep out of the common schools and civil affairs. It requires but little argument to prove that the Protestant version of the Bible, or any other version of the Bible, is the source of religious strife and opposition, and opposed to the religious belief of many of our people. It is a sectarian book. The Protestants were a very small sect in religion at one time, and they are a sect yet, to the great Catholic Church, against whose usages they protested, and so is their version of the Bible sectarian, as against the Catholic version of it. The common school is one of the most indispensable, useful and valuable civil institutions this State has. It is democratic, and free to all alike, in perfect equality, where all the children of our people stand on a common platform, and may enjoy the benefits of an equal and common education. An enemy to our common schools is an enemy to our State government. It is the same hostility that would cause any religious denomination that had acquired the ascendency over all others, to remodel our Constitution, and change our government, and all of its institutions, so as to make them favorable only to itself, and exclude all others from their benefits and protection. In such an event, religious and sectarian instruction will be given in all schools. Religion needs no support from the State. It is stronger and much purer without it. This case is important and timely. It brings before the courts a case of the plausible, insidious, and apparently innocent entrance of religion into our civil affairs, and of an assault upon the most valuable provisions of the Constitution. Those provisions should be pondered and heeded by all of our people, of all nationalities, aud of all denominations of religion, who desire the perpetuity, and value the blessings of our free government. That such is their meaning and interpretation no one can doubt, and it requires no citation of authorities to show. It is religion and sectarian instruction that are excluded by them. Morality and good conduct may be inculcated in the common schools, and should be. The connection of church and State corrupts religion, and makes the State despotic. NEW YORK COURT OF APPEALS ABSTRACTS. ARBITRATION AND AWARD-COSTS. (1) A submission to arbitrators was "of all questions and disputes arising and to arise under" a certain contract, "including all claims of either party for damages for nonperformance, delay or otherwise." The award recited that it was made after hearing the allegations and proofs of the parties; found the value of the work done; deducted the amounts paid, and the amount found as defendant's damage; and allowed the balance to plaintiffs. Held, that the award was as broad as the submission, and was conclusive as to all parties concerned. In the absence of some positive proof of neglect or refusal by the arbitrators to decide any of the particular matters presented under the submission the presumption holds good that their award covers all of the submission. Ott v. Schroeppel, 5 N. Y. 482. The parties certainly were bound, under their general submission, to claim before the arbitrators all the demands coming within the scope of the submission; and in this case, the absence of negative proof forbids our disregarding the legal presumption that every such demand was laid before them. I think a party is bound, by the very spirit and letter of a general submission, to submit every demand he has arising out of the transaction or contract; and if he fails to do so, he will not be heard to complain, in the face of a general award, that there were matters omitted to be passed upon. I think the rule should be a settled one that the submission by parties of all matters in dispute, growing out of a particular transaction or contract, will estop them from thereafter claiming that the award is not conclusive, if its language and terms, when fairly regarded, are comprehensive. The presumption should be strongly upheld by courts that the arbitrator's decision was a final adjustment of all matters in controversy. These propositions find their support in well-considered cases in the reports; such as the early English and American cases of Smith v. Johnson, 15 East. 215; Dunn v. Murray, 9 Barn & C. 780; Wheeler v. Van Houten, 12 Johns. 313; Ott v. Schroeppel, 5 N. Y. 482, and Brazill v. Isham, 12 id. 9. In Smith v. Johnson, Lord Ellenborough decided that when all matters were referred, the parties ought to bring forward every demand which was within the scope of the reference. In Dunn v. Murray, where all matters in difference in a suit brought to recover wages for work actually done, and damages for a tortious dismissal from service, were referred to arbitrators, the report was held by Chief Justice Tenterden, on the strength of that decision of Lord Ellenborough, to be a bar to a subsequent action for the dismissal only, although no claim was made for it before the arbitrators, and their award was confined to the value of the work. These and the New York cases cited carry out the principle that the estoppel upon the parties is co-extensive with the submission; and the parties, where the submission is of all matters, will not be allowed to defeat the award by showing that a general award does not embrace a decision upon some particular matter or demand. (2) The right to determine which party shall pay the costs is an incident of the general authority of the arbitrators, and no time for the delivery of the award being fixed by the subinission, the award takes effect from the time it is ready for delivery and the parties are notified, and is not affected by its retention as security for the payment of the costs. (3) Code of Civil Procedure of New York, section 2383, providing that a submission to arbitration, made either as prescribed in that Code or otherwise, cannot be revoked by either party after the matter has been finally submitted to the arbitrators for their decision, applies to a common-law submission to arbitration. People v. Nash, 111 N. Y. 310. Feb. 25, 1890. New York Lumber & Wood-Working Co. v. Schneider. Opinion by Gray, J. Affirming 1 N. Y. Supp. 441. CONSTITUTIONAL LAW CRUEL AND UNUSUAL PUNISHMENT. (1) By virtue of the inhibition of cruel and unusual punishments for crime (Const. N. Y., art. 1, $5), the judiciary has power to annul an act prescribing punishments which are in fact cruel and unusual; although the statute from which the inhibition was derived (1 W. & M., chap. 2) was only in the nature of a bill of rights, and did not operate to abolish cruel punishments, or to prevent the subsequent infliction of capital punishment for crimes not capital when it was enacted. (2) Criminal Code of New York, section 505, which directs the infliction of the death penalty by electricity, prescribes no new and unusual punishment, in the sense of the constitutional inhibition; but only directs a new method of inflicting the usual punishment for a capital crime. (3) A law must stand unless, by arguments deducible from the face of its provisions, it appears to be in conflict with the Constitution; and on a question as to the consti apply with equal force to any untried method of execution, and when carried to its logical results, would prohibit the enforcement of the death penalty at all Every act of the Legislature must be presumed to be in harmony with the fundamental law, until the contrary is clearly made to appear. Board v. Barrie, 34 N. Y. 366, 668; People v. Briggs, 50 id. 553, 558; Pedple v. Insurance Co., 92 id. 328, 344; People v. Albertson, 55 id. 50, 54; People v. Gillson, 109 id. 389, 397; People v. King, 110 id. 418. If it cannot be made to appear that a law is in conflict with the Constitution, by argument deduced from the language of the law itself, or from matters of which a court can take judicial notice, then the act must stand. The testimony of expert or other witnesses is not admissible to show that in carrying out a law enacted by the Legislature some provision of the Constitution may possibly be violated. People v. Albertson, supra; People v. Draper, 15 N. Y. 532; In re Elevated R. Co., 70 id. 3. If the act upon its face is not in conflict with the Costitution, then extraneous proof cannot be used to condemn it. The history and origin of the enactment we are now considering may very properly be referred to, to test its validity, and ascertain its true intent and proper interpretation. It has been said that courts will place themselves in the situation of the Legisla ture, and by ascertaining the necessity and probable objects of the passage of a law, give effect to it, if pos sible, according to the intention of the law-makers, when that can be done without violating any constitu tional provision. People v. Supervisors, 43 N. Y. 130. Chapter 352 of the Laws of 1886, entitled "An act to authorize the appointment of a commission to investigate and report to the Legislature the most humane and approved method of carrying into effect the sen tence of death in capital cases," provided for the ap tutionality of an act which directs the infliction of the death penalty by electricity no evidence can be admitted to show that the method would produce extreme and prolonged suffering. The only question involved in this appeal is, whether this enactment is in conflict with the provision of the State Constitution, which forbids the infliction of cruel and unusual punishment. Const., art. 1, § 5. This provision was borrowed from the English statute passed in the first year of the reign of William and Mary, being chapter 2 of the statutes of that year, entitled "An act declaring the rights and liberties of the subject, and settling the succession of the crown," usually known as the Bill of Rights. It enacts, among other things, that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." When this statute was made part of the Constitution of the United States the word "shall " was substituted for the word "ought," and in this form it first appears in the Constitution of this State adopted in 1846. It is not very clear whether the provision as it stands in our Constitution was intended as an admonition to the Legislature and the judiciary, or as a restraint upon legislation inflicting punishment for criminal offenses. When the statute referred to was enacted in England it was not intended as a check upon the power of Parliament to prescribe such punishment for crime as it considered proper. Its enactment did not change any law then existing, nor did it mitigate the harshness of criminal punishments in that country. For more than half a century after it appeared on the statute book a long catalogue of offenses were punishable by death, many of which were not visited with that extreme penalty before the Bill of Rights was passed. 2 Shars. Bl. Com., § 33. p. 440. The history of the times in which this provision assumed the form of a law shows that it was, after all, intended to be a lit-pointment of a commission consisting of three emitle more than a declaration of the rights of the sub- nent citizens, who were named therein, and required ject. The English people were about to place upon them to investigate and report to the Legislature, the throne, made vacant by revolution, a foreign on or before the fourth Tuesday of January, 1887, prince, whose life had been spent in military pursuits, the most humane and practical method known to rather than in the study of constitutional principles modern science of carrying into effect the sentence of and the limitations of power as then understood in the death in capital cases. To enable this commission to country he was to govern. This was considered a make its investigation most thorough, the Legislature favorable opportunity to enact, in the solemn form of extended the time for it to report for a year longer by a statute, a declaration of the principles upon which chapter 7 of the Laws of 1887. This commission, early the people desired the government to be conducted. in the legislative session of 1888, made its report, acBut whatever the purpose of this statute was in the companied with a proposed bill, which the Legislature country where it originated, we think that its pres- afterward, and during the same session, enacted, and ence in the Constitution of this State confers power this is the statute which is now attacked in behalf of upon the courts to declare void legislative acts pre- the relator as an unauthorized expression of the legisscribing punishments for crime in fact cruel and un- lative will. The Legislature proceeded to change the usual. This is the power that is invoked against the mode of executing the sentence of death with care and amendments to the Code of Criminal Procedure above caution and unusual deliberation. It would be a referred to, by the learned counsel for the relator, in strange result indeed if it could now be held that its au argument addressed to us, interesting on account efforts to devise a more humane method of carrying of its great political and scientific research. We enter- out the sentence of death in capital cases have cultain no doubt in regard to the power of the Legislaminated in the enactment of a law in conflict with the ture to change the manner of inflicting the penalty of death. The general power of the Legislature over crimes, and its power to define and punish the crime of murder, is not and cannot be disputed. The amendments prescribed no new punishment for this offense. The punishment now, as before, is death. The only change made is in the mode of carrying out the sentence. The infliction of the death penalty in any manner must necessarily be accompanied with, what might be considered in this age, some degree of cruelty, and it is resorted to only because it is consid-tory and reliable as any that are consistent with the ered necessary for the protection of society. The act on its face does not provide for any other or additional punishment. In behalf of the relator, this legislation is assailed in no other way than by attempting to show that the new mode of carrying out a death sentence subjects the person convicted to the possible risk of torture and unnecessary pain. This argument would provisions of the Constitution prohibiting cruel and unusual punishments. Whether the use of electricity, as an agency for producing death, constituted a more humane method of executing the judgment of the court in capital cases, was a question for the determi nation of the Legislature. It was a question peculiarly within its province, and the means at its command for ascertaining whether such a mode of producing death involved cruelty, within the meaning of the constitutional prohibition, were certainly as satisfac limited functions of an appellate court. The determination of the Legislature of this question is conclusive upon this court. The amendment of the Code of Criminal Procedure, changing the mode of inflicting the death penalty,, does not, upon its face nor in its general purpose and intent, violate any provision of the Constitution. The testimony taken by the referee, while not available to impeach the validity of the legislation, may, we think, be regarded as a valuable collection of facts and opinions touching the use of electricity as a means of producing death, and for that reason as part of the argument for the relator, but nothing more. We have examined this testimony, and can find but little in it to warrant the belief that this new mode of execution is cruel, within the meaning of the Constitution, though it is certainly unusual. On the contrary, we agree with the court below that it removes every reasonable doubt that the application of electricity to the vital parts of the human body, under such conditions and in the manner contemplated by the statute, must result in instantaneous, and consequently in painless, death. March 21, 1890. People, ex rel. Kemmler, v. Durston. Opinion by O'Brien, J. Affirming 7 N. Y. Supp. 813, which affirms id. 145. CORPORATION-ULTRA VIRES - ASSOCIATION.-(1) A complaint which alleges that the defendant, an incorporated company, being a member of an unincorporated association, together with other members of said association authorized a certain person, as trustee, to make a contract with plaintiff to pay him, as patentee, one-eighth of one per cent royalty on each pound of certain fibres used by them in the manufacture of certain goods, in consideration of his agreement to allow them the exclusive use and sale of certain inventions, does not show that such association was a partnership, and that such contract, as to defendant company, was therefore void. (2) An agreement by a patentee to allow an association and its members the exclusive use and sale of inventions patented by him is not illegal as being in restraint of trade. (3) Said contract further required each member of the association to make monthly sworn statements, to plaintiff of goods so made, and in case of default, required the trustee to bring suit for plaintiff's benefit against the defaulting member. The defendant company defaulted, but the trustee, though requested, neglected to bring suit. In an action to enforce the contract against it, plaintiff also prayed damages against the trustee for his neglect. Held, that as the complaint stated no sufficient case for damages against him, there was no misjoinder of causes of action. (4) In such action it was proper to join the trustee, in order to charge him with costs, because he neglected to bring suit at his own cost, as required. April 15, 1890. Good v. Tucker & Carter Cordage Co. Opinion by Peckham, J. Affirming 6 N. Y. Supp. 204. CORPORATIONS-LIABILITY OF STOCKHOLDERS-SETOFF. In an action to charge a stockholder with a corporate debt, under laws of New York of 1848, chapter 40, section 10, which provides for the individual liability of a stockholder, judgments against the corporation, purchased by defendant while he was a director, and after he knew the corporation was insolvent, cannot avail him as a defense beyond the amount which he shows he actually paid for them. April 15, 1890. Bulkley v. Whitcomb. Opinion by Finch, J. Affirming 1 N. Y. Supp. 748. * COVENANTS-REASONABLE REGULATIONS-DAMAGES TO LEASEHOLD.—(1) A grantor conveyed to defendant, a railroad company, a strip of land between grantor's hotel and defendant's depot property, which was south of the hotel. The deed contained a clause that the Conveyance was on condition that the said railroad company * * shall at all times maintain an opening into the premises hereby conveyed, opposite the Exchange Hotel, so called, adjacent to the premises hereby conveyed, for the convenient access of passengers and their baggage to and from said premises." At the time of the conveyance, defendant's trains stopped opposite to the hotel, so that passengers would cross the strip conveyed in reaching the hotel. Afterward defendant erected a depot on the west side of the hotel, closed up the opening in the strip, and opened a gateway on the east side of the depot, leading directly into the hotel property, but not across the strip. Held, that as the purpose of the clause was to secure to the hotel a direct communication with the depot, this was a substantial and sufficient compliance with it. (2) The deed provided however that the use of the opening should be subject "to all proper regulations of police and railroad discipline of persons on the said premises." Held, that it was a reasonable regulation that no persons should enter the depot through the gate unless they had tickets, and train was about to leave, and that only hand baggage should be taken in at that point. (3) In an action for injury to the leasehold interest in the hotel for not maintaining a sufficient opening, it was error to allow the lessee to testify that he knew a certain amount would have been the rental value if a sufficient opening had been maintained, as it was for the jury to determine the damages from the evidence as to what defendant had done, the condition of the business before and after, etc. April 15, 1890. Avery v. New York Cent. & H. R. R. Co. Opinion by Gray, J. Reversing 2 N. Y. Supp. 101. same. COVENANTS-RUNNING WITH THE LAND. WILL-DEVISE-DESCRIPTION.-(1) Where a riparian owner coutributes so much of his lands, dam, ditch, etc., as may be necessary for the creation and enjoyment of a new water privilege, to be owned jointly by himself and two others, his covenant to keep the dam.for the new privilege in repair, and to rebuild it, if necessary, at the sole expense of himself, his heirs and assigus, runs with the land, as it is connected with the subject of the grant, and enters into its value. Although the interest transferred was less than the entire title, and the residue was reserved by the grantor, the covenants were in support of the grant, and related to the beneficial enjoyment of the thing granted. The benefit of the covenants therefore passed with the interest transferred to the covenantee, while the burden rested upon the part reserved by the covenantor, and became binding upon whomsoever should at any time own the Norman v. Wells, 17 Wend. 136, 146, and cases therein cited; Hart v. Lyon, 90 N. Y. 663; Phoenix Ins. Co. v. Continental Ins. Co., 87 id. 400, 408; Trustees v. Lynch, 70 id. 440, 450; Wilbur v. Brown, 3 Den. 356; Fitch v. Johnson, 104 Ill. 111; Mauderbach v. Bethany Orphans' Home, 109 Penn. St. 231; Cooke v. Chilcott, 18 Moak Eng. R. 760; Spencer's Case, 1 Smith Lead. Cas. 175, 212; Morse v. Aldrich, 19 Pick. 449; Bronson v. Coffin, 108 Mass. 175; Devl. Deeds, 940; Gould Waters, § 301. These views do not conflict with Cole v. Hughes, 54 N. Y. 444, or Scott v. McMillan, 76 id. 144, which hold that a covenant to contribute toward the construction of a party-wall built by one owner, whenever the other owner should use it, did not run with the land, because neither received or granted any interest in land. (2) A devise by the covenantor of "all my water privileges," together with the various mills and factories connected therewith, includes his interest in the dam and pond for the new privilege, though not described by metes and bounds. Where it is apparent that the grautor or testator intended to dispose of the entire "mill property." the use of the phrase, "all my water privileges," including the various mills and manufactories connected therewith, without a description by metes and bounds, includes the dam and pond, which are an essential part of the privileges and property. Wetmore v. White, 2 Caines Cas. 87; Babcock v. Utter, *40 N. Y. 409; Le Roy v. Platt, 4 Paige, 76; Hills v. Dey, 14 Wend. 206; Jackson v. Buel, 9 Johns. 298; Moore v. Fletcher, 16 Me. 63; Morgan v. Mason, 20 Ohio, 401; Woolen Factory v. Batchelder, 3 N. H. 190; Gould Waters, §§ 305-308, and cases cited. Second Division, April 15, 1890. Nye v. Hoyle. Opinion by Vann, J. Affirming 44 Hun, 630. CRIMINAL LAW-MURDER-INSANITY-EVIDENCE(1) On a trial for murder, when the defense was mental irresponsibility, it was shown that the accused was a hard and habitual drinker, but was quite sober when he committed the act. A medical expert, after examination, thought him not entirely capable of appreciating what transpired about him, and in answer to an hypothetical question, which failed however to state with exactness the prisoner's habits and circumstances, said he would be incapable of discriminating the quality of his acts. But two physicians saw no indications of mental unsoundness, and thought his conduct at the time of the killing and afterward showed a consciousness of the nature of the deed. The accused had conducted his business of huckstering with a measurable degree of sagacity and success. Held, there was no evidence of mental unsoundness to warrant interference with the verdict of murder in the first de gree. (2) Where the defense is mental irresponsibility produced by habitual intoxication, it is not error to refuse a charge "that in fixing the grade of crime * * * the evidence of his intoxication becomes very important, and must be carefully weighed," and to charge instead thereof that "all the evidence in the case is to be carefully weighed, but it is not the province of the court to tell you what is important or otherwise." (3) Physicians, who were sent to the jail to examine a prisoner accused of murder, whose defense was mental irresponsibility, were properly allowed to testify for the prosecution as to his mental capacity. Their visit neither gave rise to the relation of patient and physician, nor resulted in compelling the accused to give evidence against himself. (4) On a trial for the murder of defendant's paramour, who had eloped with him from her husband, it was proper to admit evidence of his conversations and quarrels with her, and of her desire to return to the city of her former home, as tending to show the influences that acted upon his mind. (5) The Constitution of New York (art. 1, § 5) forbids the infliction of cruel or unusual punishments for crime; but where an act directs the infliction of the death penalty by a new agency, electricity, it must be assumed that the Legislature acted after some investigation of the facts, and it cannot be held, upon a groundwork of possibilities, that the method will cause extreme and prolonged suffering. March 21, 1890. People v. Kemmler. Opinion by Gray, J. CORPORATION BY-LAWS. INJUNCTION (1) The plaintiff was a member of a “musical mutual protective union," one of whose by-laws provided that every member must refuse to perform in any orchestra in which any person is engaged who is not a member in good standing, except organists and directors of musical societies and members of travelling companies. Plaintiff was a director of a musical society, and manager of a travelling company. He and certain members of his company, members of said union, were notified by the directors of the union to appear and show cause why they should not be fined for a violation of said by-law. Held, that the injury threatened was conjectural only, and not a ground for an injunction against said directors. (2) There is no ground for issuing a restraining order where the act threatened is only the infliction of a pecuniary fine, which, against plaintiff's will, could only be collected, if at all, by an action at law wherein he might set up as a defense the facts stated in his complaint. (3) A member of an incorporated society cannot sue to have declared null and void, as illegal, certain by-laws thereof, although, through their influence upon persons sustaining business relatious to him, such by-laws may cause him trouble and loss; especially so where it appears that the action of such persons is determined only by a vol untary obedience thereto. April 15, 1890. Thomas v. Musical Mutual Protective Union. Opinion by Ruger, C. J. Reversing 2 N. Y. Supp. 195. JUDGMENT-RES ADJUDICATA-FINDING OF FACT.A finding, in a former action between the same parties, that a contract was executed as alleged, though the court declined to enforce it, for want of jurisdiction, is not sufficient to establish its execution in a subsequent action thereon, even though recovery on another contract in the former action was limited to the time prior to the date of the contract in question; such limitation not having been made at the instance of defendant. April 15, 1890. Cauhape v. Parke, Davis & Co. Opinion by Andrews, J. Affirming 46 Hun, 306. MASTER AND SERVANT-NEGLIGENCE-FELLOW-SERVANT-UNLOADING VESSEL.-Though the consignees of a cargo of coal have agreed to unload it at their own expense, and have put their laborers at the work, the captain of the boat, who, in accordance with custom, manages the guy-rope used in hoisting and transferring the coal, remains the servant of the boat-owners, and is not a fellow-servant with a laborer of the consignees, and the boat-owners are liable for an injury to him resulting from the captain's negligence. While the consignee pays for the unloading, and sets his own servants at the work, yet the process is carried on under the general superintendence and direction of the captain. The usage which reserves to him the control of the guy-rope seems of itself to show that. The man at the horse cannot see those in the hold, and they cannot see him. The captain can see both. He gives the sigal upon which they act, and must necessarily direct the work in its progress. The position which custom assigns him leaves him in practical control of the boat. He can protect it from injury. A servant of the stevedore would be less likely to do so, and very probably the custom is founded on that fact. But the consequent action of the captain is not only in the interest and for the protection of the boat, but it seems to me must be an element in the delivery of the cargo. It is a remnant of the general rule, cut down and limited by the bill of lading and the custom relating to cargoes of coal. Let us try to see whether that must not be the truth. Suppose that when this boat arrived the captain had given notice to the consignee, whose stevedore appeared, ready to do the work, but the captain refused to touch the guy-rope or provide anybody to do so, and the stevedore on his part refused to hire a man to do the duty which usage put upon the captain, could we say that the coal had been delivered, and the risk of the carrier had ended? I do not see that we could. I think we should be obliged to hold that the captain's conduct was a refusal to deliver in accordance with the custom of the port, and that there was a failure to deliver the coal through his fault. Suppose, again, that the stevedore should order the captain to give up the guy-rope to another, would the captain be bound to obey, and stand aside for a stranger to superintend the process? To answer that in the affirmative would involve a violation of the custom. And so I have been led to the conclusion that the duty laid upon the captain by usage is an element in the delivery of the cargo by the boat-owner, and a remaining shred of the general rule, cut down by the bill of lading, and the cus tom as to coal-boats at the port of New York, to the duty of giving notice and supervising the actual delivery by managing the guy. It will follow that the cap tain's action is as the servant of the boat-owner, and in performance of the latter's duty in making delivery, and not as the servant of the stevedore. The learned counsel insist that the custom means only that, where the delivery is "along-side," the boat lends its captain to the use and service of the consignee's stevedore in |