binations, or may use some of them in combination and omit in such relations shall be considered as having been legally marothers." ried; and the children heretofore, or hereafter, born of such cohabitations shall be deemed legitimate." * * * At the time this constitution was before the people for ratification, it was universally believed in Texas, that the sole object, intention and effect of this section, were to legalize marriages between former slaves, and to render their offspring legitimate; this was manifest in the expression," persons, * both of whom,by * In the case of Hill v. Thompson, Webb's Pat. Cases, 243, the court (Dallas, J.) on the subject of combinations, says: 'Neither can it be justly said that the use of the separate ingredients, or some of them partially combined, is a use made of the invention in part. Each of the ingredients had before been separately used, and had been used more or less in partial combination." Again, in Barnett v. Hill, 1 Mass. 447 (Curtis, Sec. 332), it was held : "When the patent is for the combination alone, it is no infringement to use any of the parts or things which go to make up the combination, provided the combination itself is not used "rying Africans or descendants of Africans. In Prouty v. Ruggles, 16 Peters, 336, the court holds: "The use of any two parts only, or of two combined with a third, which is substantially different in form or in the manner of its arrangements and connection with the others, is therefore not the thing patented. It is not the same combination if it substantially differs from it in any of its parts. Curtis, 332. the law of bondage, were precluded from the rites of matrimony." By the law of bondage, negroes alone were prohibited from marrying in general; white persons were only prohibited from mar The same question came before our new Supreme Court at Galveston, March 31, 1875, in the case of Clements v. Crawford. These are the facts of the case: Clements gave a trust deed upon some lots, on which he had a house, where he was living and cohabiting with a negro woman The lots were sold in execution of the trust, and Crawford became the purchaser. Clements and In a late case, Garrett v. Sibert, the U. S. Supreme Court at its the negro woman refused to surrender the possession of the propOctober term, 1873, held the same doctrine. erty, and Crawford brought an action of trespass to try title. The woman pleaded her marital rights, claiming the property as a homestead. The combination of the outside screen, and the enlarged drillhead not being new or patentable, if the combination of the plaintiff were patentable at all, it must have been so by reason of the combination of the air passage with the other devices, or a combination of the whole as set forth in the specifications. If the plaintiff could or should abandon the claim for the chamber and air passage, he has no patentable combination left. The plaintiff claims that the defendants have made use of an equivalent for his air chamber and passage, that the enlarged drill-head is of itself an equivalent, as by making a hole larger than the tube, it facilitates the drawing up of the same, which was the real purpose of the air passage. If this be true, it would merely prove that the air passage was no improvement on the old drillhead, instead of proving that the old drill-head was an equivalent for the air passage. On the second question, therefore, we are compelled to hold the negative, and that there is no infringement of plaintiff's patent by the defendants in this cause. MARITAL RELATIONS BETWEEN WHITES AND NEGROES IN TEXAS. OF 1869. BRENHAM, Texas, April 3, 1875. EDITORS CENTRAL LAW JOURNAL:- In the case of Hovey v. Clark (37 Texas, 696) it was held, that in Texas, from the year 1828, until the establishment of the Republic in 1836, there was no law prohibiting marriage between whites and negroes. The supreme court, Moore, J, delivering the opinion, held: I. That section 27 of Article XII of the constitution, refers only to persons who were precluded, not from marrying each other, merely, but from marrying any one else. Its object was to legiti mize the offspring of those whom bondage had disabled from matrimony. 2. A free white man, precluded by no law from marriage, who was living with a woman, either white or black, in violation of law, at the time of the adoption of the constitution, was not thereby made a married min. The case of Hovey v. Clark, supra, in so far as it is not in harmony with this interpretation, is overruled. S. NATURALIZATION OF ALIENS-RELIGIOUS TESTS. LEAVENWORTH, KANS., March 29th, 1875. EDITORS CENTRAL LAW JOURNAL:-In your No. 13 Vol. 2., page 198, is an article entitled "Naturalization-Religious Tests" about which I feel disposed to differ with you somewhat in regard to the first case you mentioned. Your statement is that " 'Judge McKean, of Utah, refused a decree of naturalization to a Norwegian, who knew no constitutional law against poligamy" Your statement precludes the idea that the Norwegian was an actual poligamist, and it is to the effect that he was refused his certificate, because of his erroneous theory in regard to the validity of the marriage laws of the states and territories of the Union. Ordinarily we would understand from his language above quoted, that he knew of no constitutional prohibition against polygamy applicaco-ble to Utah Territory. If such was his meaning, I think Judge McK: an would have trouble to find one himself. The facts of the case were as follows: Clark (a white man) habited with a negro woman, from some time in 1833 to the time of his death, in 1862; the negress died in 1869. Clark left a large property which had been escheated to the state, and this suit was brought against the state treasurer for its recovery, by persons claiming to be the children of Clark and the woman. The other construction of his language must be that he doubted whether the act of Congress, and the various statutes of the states and territories (save and except Utah) were not unconstitutional. And it seems a great hardship in Judge McKean to compel the Judgment was rendered for the plaintiffs in the court below, es- aforesaid Norwegian forever to remain a foreigner, for merely extablishing their legitimacy and right to inherit. The supreme court affirmed this judgment, holding that the offspring of such cohabitations were rendered legitimate by section 27, of Article XII of the constitution of 1869, which reads as follows: pressing a legal doubt which some may consider a reasonable one, while the Honorable Judge no doubt expressed many such doubts during the same term of his court with impunity. In Utah, polygamy is not prohibited by territorial laws, and there it is practiced. Everywhere else in the United States, it is prohibited. Yet from my reading, I am inclined to the opinion that curative statutes are needed to legalize much that is done outside of Utah, and that a poor Norwegian, unskilled in the law might be pardoned for imagining that the marriage laws of the United States were dead letters, and generally considered uncon 'All persons who, at any time heretofore, lived together as husband and wife, and both of whom, by the law of bondage, were precluded from the rites of matrimony, and continued to live together until the death of one of the parties, shall be considered as legally married; and the issue of such cohabitation shall be deemed legitimate. And all such persons as may now be living together institutional. The maxim, that" ignorance of the law excuses no one," is unquestionably good when applied to men's actions, but I think it is going too far to apply this maxim to one endeavoring to procure naturalization papers, merely to test his theories or knowledge of our laws and constitution. Even some lawyers might be expatriated if such a ruling was insisted upon and generally adopted. In all seriousness I think both the judges you named erred. Of course no excuse can be offered for Judge Ludlow. But if the Norwegian was violating actually the law by having more than one wife, Judge McKean did right, but unless he was, he had no right to condemn him on account of his theories. J. W. ENGLISH. [There is an act of Congress against polygamy, passed in 1862. The Norwegian jurist was therefore refused citizenship by Chief Justice McKean, because, in advance of the courts whose function it is to decide such questions, he held this law unconstitutional and void. The status of polygamy in Utah, is thus set out in a charge to a grand jury delivered by Chief Justice McKean at Salt Lake last fall: Utah was once a part of the Mexican Republic, and the Roman civil law and the the statute law in Mexico both condemned polygamy; the common law of England, some of whose principles prevail here, denounces it; Congress in 1862 enacted a statute making it a penal offence; and European and American civilization utterly repudiate it Nothwithstanding all this polygamy largely prevails in this territory, and, contrary to the statements of some who would deceive the world, and of others who are themselves deceived, large numbers of men and women are steadily going into it. And still, so far as I can learn, the law against it has thus far been a dead letter. Its enforcement has been defeated by perjury. The polygamous marriage is a secret ceremony. None are permitted to be present but conspirators against the laws, and when they are called as witnesses they deny all knowledge of it. I fain would hope, gentlemen, that you may elicit the truth, and bring some of these influential, polygamous criminals to the bar of justice. It is your duty to labor earnestly to that end. And you will bear in mind gentlemen, that this Asiatic practice of polygamy goes hand in hand with the murderous doctrine of blood atonement. Here is a brief paragraph from the lengthened so-called revelation to Joseph Smith: And again, as pertaining to the law of priesthood: If any man espouse a virgin and desire to espouse another, and the first give her consent; and if he espouse the second. and they are virgins, and have vowed to no other man, then he is justified; he can not commit adultery, for they are given him ; ** ** and if he have ten virgins given unto him by this law, he can not commit adultery, for they belong to him; and they are given unto him—therefore is he justified. But if one or either of the ten virgins, after she is espoused, ' "shall be with another man, she has committed adultery, and shall be destroyed. There are territorial statutes against adultery and lascivious cohabitation. They are general in their terms and apply alike, without exception, to all citizens and residents in the territory. Polygamous sexual intercourse is adultery. I repeat, gentlemen, you will enquire into all crimes of every name and nature. The well-known animus of the Mormon leaders is in favor of the nullification of the laws of the Union, so far as they operate unfavorably upon the usages of the Church of Latter-Day Saints. We have no doubt it was this animus which prompted the declaration of the Norwegian in question. But even regarding his language in this light, we have felt doubts as to the propriety of refusing him naturalization. Ought any man to be denied the privileges of citizenship on account of opinions upon a legal or religious question ?-ED. C. L. J.] Notes and Queries. I. ANSWER TO FOG. EUGENE CITY, OREGON, March 28, 1875. EDITORS CENTRAL LAW JOURNAL:-In answer to enquiry of "Fog," in JOURNAL vol. 2, p. 176, I would say in the first place, that neither of the estates of X. nor Y. were subject to levy and sale under the laws of Tennessee, the legal title being vested in the trustee under the trust deed, and an equity only remaining in A. A part of the mortgaged lands being sold by the mortgagor, the remainder becomes subject, in the first instance, to pay the whole of the mortgage debt. Rorer on Judicial Sales, sec. 195; 10 Iowa 325; 16 Iowa 390; 5 Johnson Ch. 235; 1 Paige 226; Gill v. Lyons, I Johnson Ch. 447; 9 Paige 649; 2 Barb. Ch. 151; 36 Ill. 321; 3 | Leigh, 532; 1 Barb. Ch. 353. A sale of property under execution is, in law, a sale by the execution defendant, the officer selling being his agent or attorney for that purpose. Rorer on Jud. Sales, page 27; 3 Dana 622; 13 Rich. Eq. 222; 16 Iowa, 519; 3 Wash. C. C. 546, 550. A court of equity will decree a satisfaction out of the homestead, provided the trust deed was signed, etc,, by the wife. Yours truly, R. N. II. ELECTION OF TOWN OFFICERS IN MISSOURI. SHELBINA, Mo., April 8th, 1875. EDITORS CENTRAL LAW JOURNAL:-Sections 22 and 23, chapter 134, Wagner's Statutes, provide for the election of town officers. Now the regular day for such election is the first Tuesday in April of each year. The incumbent trustees give the notice instead of having it given by the judges as the law requires. They find out their mistake and re-appoint the judges, and order an election under section 29 of the same chapter, which provides that an election shall be ordered in case of failure of any election of trustees, etc. Now, the judges issue notice as required by sec. 23 for election under section 29, but issue the notice before the day for election under the general law, first Tuesday in April. The question is: Can there be a failure to elect under the general law until the day for election is passed? Or in other words would the election under section 29, be legal where the notices were issued and posted before the day for general election had passed? Would there be a failure to elect until the day of election had passed, and the failure thereby accomplished? Please insert this query in your next issue with your answer. My mind is made up upon the question, but there is a question here raised, that there is a failure when the judges failed to give notice of the general election, and that judges could be appointed and give notice under the special law (sec. 29), before the day arrived for election under the general law. Very respectfully yours, Book Notices. CHAS. M. KING. AMERICAN REPORTS. Vol 13. By ISAAC GRANT THOMPSON, Albany. John D. Parsons, Jr. 1875. DIGEST OF American ReporTS. BY ISAAC GRANT THOMPSON. Volumes 1 to 12 inclusive. Albany: John D Parsons, Jr. 1875. On the appearance of the 12th volume, we had occasion to express our high estimate of the excellence and value of this series of reports, which from the beginning has been under the personal editorial charge of Mr. Isaac Grant Thompson, the well-known and able editor of the Albany Law Journal. In the judicious selection of cases, and in editorial work proper, the present volume is fully up to the standard of its predecessors. The utility of the series is much increased by the admirable Digest of all the cases reported in volumes 1 to 12 inclusive. The 13th volume includes most, if not all of the decisions of general interest and permanent value in 43 to 46 California, 4 and 5 Heiskell (Tenn.), 39 to 43 Indiana, 24, 25 La. An., 52 New Hamp., 36 New Jersey, 53, 54 New York, 23 Ohio State, 72, 73 Penna. State and 5 West Virginia. We repeat the expression of our conviction, that next to the reports of his own state, and the reports of the Supreme Court of the United States the practitioner will find it impossible to make a selection of report more useful than the "American," J. F. D. THEODORE TILTON V. HENRY WARD BEECHER. Action for crim. con. tried in the City Court of Brooklyn, Chief Justice, Joseph Neilson, presiding. Vol. 1. New York: McDivitt, Campbell & Co. 1875. This is re-published from the New York Tribune's report of the great trial, which is generally conceded to be the best, if not the only accurate reports which has been furnished by the daily press Judge Neilson acknowledges his obligations to it; our own New York correspondent," Beta," has made use of it in the preparation of his very interesting Bird's Eye View" of the trial; and the general voice seems to testify in favor of its accuracy and trust worthiness. This volume contains portraits of Judge Neilson, Mrs. Tilton, Mr. Fullerton, Mr Morris Mr. Prior and Mrs. Moulton. This volume brings us down nearly to the close of Mr. Tilton's testimony. It is printed in fine type, but as it is double leaded, it is not difficult to read. It is safe to predict that this, or some other edition of the great trial will find a place in every well-filled law library. We congratulate the enterprising publishers on the promptness they have shown in issuing this volume, which, by the way, has been on our table for some two or three weeks. Summary of Our Legal Exchanges. MONTHLY WESTERN JURIST, BLOOMINGTON, ILL., FOR MARGH. Execution-Waiver of Exemption by Contract.-This is a short but valuable paper on this question, reviewing the cases, and showing a preponder ance of opinion against the power to waive the statutory exemption by con tract. Rights of Father and Mother as Against Each Other to the Cus tody of Minor Child.-Commonwealth v. Potter, Mayor's Court of Scranton, Pa., opinion by Ward, Recorder. It would not be profitable to go through this case. We will seize the occasion, however, to express a conviction at which we have arrived after much thought; and it is, that it is time that the courts totally repudiated the common law barbarism that the father has any right to the custody of the child superior to that of the mother. Upon every principle of reason the reverse is true; but the child's interests and affections ought in every case to prevail. Suit on Collector's Bond-Defence by Sureties-Estoppel, Limitation and Laches Against State.-People v. Hastings, Supreme Court of Illinois, opinion by Breese, J. [1 Mo. West. Jur. 485] 1. A mistake of the auditor of public accounts in stating the account of a county collector, by which the collector's securities were prevented from obtaining indemnity from such collector, can not be pleaded as a defence to an action against the securities upon his official bond. 2. As between individuals, if one by words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act upon it so as to change his previous condition, he will be estopped to deny the truth of the representation, but the rule is otherwise as against the state. 3. The state is not embraced within the statute of Limitations, unless specially named and by analogy does not fall within the doctrine of estoppel. 4. That no laches can be imputed to the government, and by the same reasoning which excuses it from laches and on the same grounds, is not affected by the negligence or even wilfulness of any one of its officials. held competent as showing the market price of oats in Cairo at that time. 3. For the purpose of establishing the market price of corn, appellees introduced in evidence a correspondence between them and Bacon & Co. Held, that the testimony was incompetent. 4. The recovery of interest depends entirely upon the statute, and unless authorized by the statute it can not be recovered. 5. The measure of damages was the difference between the market price at Cairo when the grain should have arrived, and the market price when it did arrive; and, if there was no market for it in Cairo, appellees were bound to find a speedy market and dispose of it on the most advantageous terms, and the difference between the market price when it should have arrived, and the price thus received, would be the measure of damages. 6. In a case like this, it is not enough for the appellees to show they received a specified sum for the grain and then stop, but the burden of proof is on them to clearly prove the disposition made of the grain, the price received and the expen ses etc. ADVANCE SHEETS OF 24 OHIO STATE REPORTS. CINCINNATI: R. CLARK & Co. Conveyance-Covenant Broken-Constitutional Law-Obligation of Contracts.-The Great Western Stock Company v. Felix Saas. [24 Ohio St. 542.] 1. Where a person owning an estate in lands for the life of another, executes a deed, with a covenant of seizin, purporting to convey the lands in fee simple, and the purchaser is put in possession under the deed, such covenant, in view of its settled construction in this state, is not broken until eviction or its equivalent. 2. The provisions of the act of April 18, 1870, amending section 557 of the code, when applied to cases where the cause of action accrued before the passage of the act are inhibited by section 28, article 2, of the constitution, in so far as such provisions authorize the court, at its discretion, to order a rescission of the contract, or to render judgment for the plaintiff only upon his giving a bond of indemnity to the defend. ant against damage resulting from a subsequent eviction, at the suit of adverse claimants in remainder or reversion, etc Constitutional Law-Obligation of Contracts.-Wallace W. Templeton v Solomon Kraner et al. [24 Ohio St. 554] 1. The act of April 18, 1870, amending section 557 of the co le, in so far as it authorizes a purchaser of real estate, in possession under a conveyance con'aining covenants of title and general warranty, in an action by the vendor against him to recover the purchase-money, to make the claimant of an estate in fee simple adverse to he title acquired by the purchaser, a party to such action, and if the adverse estate be adjudged in favor of the claimant, to counter-claim against the ven. dor the breach of the covenants of his title, is remedial merely, and does not impair the obligation of the contract between the vendor and vendee, nor in any manner affect the causes of action existing in favor of the parties thereto at the time of the passage of the amendatory act. 2. Under the grant of legislative power in the constitution, the general assembly has complete control over the remedies which are to be afforded to parties in the courts of the state; and if the remedies provided do not interfere with vested rights such effect must be given them as will carry out the intent of the law-making power. Ante Nuptial Agreement-Widow's Allowance-Policy of the Law. By the statute of wills, the widow in all cases is allowed certain specific articles of property for the benefit of herself and family, and the only question in this case is is the widow barred of such right by the terms of an antenuptial agreement containing this provision: "It is agreed that the property of each shall be kept separate and distinct, held and enjoyed by each separately and distinctly by each, in the same manner as if they were and had continued unmarried; and upon the death of either party, his or her real estate Letting Contracts to Lowest Bidders-Agreement among Bidand personal property shall pass to his or her heirs, executors and administra-ders to do the Work in Partnership.-Hugh Breslin v. E-vin Brown, tors, free from all claims of survivor." Held, that where there are children of the decedent, constituting the family, the award is as much for their benefit as for hers, and that she has no power to release it by ante-nuptial agreement or otherwise Limitations-Set-off.-Gilmore v Read, Supreme Court of Pa., opinion by Mercur. J. The running of the statute of limitations against a claim which defendant interposes as a set-off, is not stopped by the commencement of the suit. It is not stopped until the set-off is pleaded. Liability of Common Carriers-Evidence-Measure of Damages -Interest-Instructions-Degree of Proof Required.-Ill. C. R. R. Co. v. Blaisdell, Supreme Court, of Illinois, opinion by Craig, J.-1. This was an action of assumpsit brought by appellees against appellant for unreasonable delay in the transportation of corn and oats shipped at various stations on the line of appellant's road, in the spring of 1865, consigned to Cairo. Held, that if appellant failed to transport the grain to its point of destination within a reasonable time, and the price of the grain declined in the market at Cairo, the point to which it was consigned, then appellees would be entitled to recover the difference between the market price at Cairo, when it should have arrived and the time it actually arrived; or if, in consequence of the delay there ceased to be a market for the grain at Cairo, then it would have been the privilege and right of appellees, without unreasonable delay, to ship the grain to some point where it could have been sold for the most advantageous price, disposed of it to the best advantage and held the appellant for theloss. 2. The price for which appellees sold oats at that time in Cairo, [24 Ohio St. 565.] A contract for making a public improvement was about to be let to the lowest and best bidder. A., who had filed his bid, and B., who was about to file his bid, entered into an agreement to become partners in the doing of the work, in the event the contract should be awarded to either of them, and further agreed that the contract so awarded should inure to the benefit of the firm. This agreement was not intended to influence the bid of either party. B., to whom the work was afterwards awarded on his bid, refused to perform the work in partnership with A, and assigned the contract for the work to a stranger for a valuable consideration, which he received. Held: I The agreement between A and B was mutual, and the undertaking of each was a sufficient consideration to support the undertaking of the other. 2. The agreement was not void as against public policy—it not appearing that the intent, effect or necessary tendency of the contract was to stifle fair competition at the letting. 3. A. was entitled to demand from B. one-half the profits received on assignment. Administrator Purchasing at his own Sale-Action to Cancel Fraudulent Deeds-When Court will Decree a Reconveyance Effect of Statute of Limitations upon Heirs, one of whom is a Minor.-Elizabeth C. Riddle and Alvah Parker v. Phebe C. Roll and others. [24 Ohio St, 572.] 1. An administrator, ordered by the court to sell lands of the estate, procured a party to attend the sale and become the purchaser, and no other person being present or bidding at the sale, sold the land at twothirds its appraised value to such purchaser, who, immediately upon receiving his deed therefor, with the knowledge and consent of the administrator, conveyed the land to a trustee for the use of the administrator's wife during her life, with remainder to her children begotten by her husband, and with power in the wife to sell the land. Held, that the transaction, upon its face, and in the absence of clear and satisfactory explanation, is fraudulent and void; and that it is a question of fact for the court to decide whether the evidence furnishes such explanation. 2. Wl.ere the plaintiffs, in an action to set aside fraudulent deeds, whereby they have been divested of their title to land, pray to have the deeds canceled and set aside, and also pray for general relief, it is not an error in the court, on finding the deeds fraudulent, instead of ordering the same to be set aside and canceled, to decree a reconveyance of the land to the plaintiffs upon equitable terms. 3. When one of several heirs bringing such an action is a minor, within the saving clause of the statute of limitations, the rights of all are saved thereby from the bar of the statute. Bill of Exceptions as Evidence on Subsequent Trial.-John W. Kirk et al. v. Albert L. Mowry. [24 Ohio St. 581.] A bill of exceptions, purporting to show all the testimony taken on the trial of a case, is not competent evidence, on a subsequent trial, to prove what the testimony of the witnesses was on the trial in which the bill of exceptions was taken. Criminal Procedure-Argument of Counsel-Right of Counsel to be Present when Verdict is Rendered-Quantum of ProofSelf-Defence.-John Weaver v. The State. [24 Ohio St. 584.] 1. The court, in the trial of a criminal case, has the power to limit the time to be occupied in the argument of the case to the jury. The exercise of the power should be reasonable, leaving full time for the fair discussion and presentation of the case. 2 The counsel of the accused are entitled to a reasonable opportunity to be present at the receiving of the verdict. But where the court, after the jury agreed, had the court-house bell rung in pursuance of an announcement made at the time the jury retired, and also counsel called, and a reasonable time had elapsed for counsel to appear, all was done by the court that the defendant or his counsel had a right to expect. 3. On a trial for the malicious shooting of a person with intent to kill, the burden of proving that the act was done in self-defence, rests on the accused, and should be shown by a preponderance of the evidence. Silvus v. The State, 22 Ohio St. 90, approved and followed. Breaking Railroad Car with Intent to Steal-Evidence-Larceny on Railroad Car by Breakman.-Manson v. The State. [24 Ohio St. 590.] 1. Where a person is indicted for breaking and entering a railroad car, with intent to steal, and for the larceny of goods contained therein, and is acquitted of the breaking and entering, and convicted of the larceny only, the judgment of the court will not be reversed because of the admission, against the objection of the defendant, of evidence for the sole purpose of proving the breaking and entering, whether such evidence was properly admitted or not. 2 The fact that a person is in the employ of a railroad company, as brakeman on a freight train, does not imply such contro or possession of the goods being transported on such train, that he may not be convicted of the larceny thereof. Legal News and Notes. -ROBERT MCKENNA, of Shelby county, Tennessee, an estimable citizen formerly a senator in the legislature of that state, was recently convicted of incest, and sentenced to five years penal servitude in the penitentiary, for mar rying the granddaughter of his deceased wife. Our acquaintance with the man, and the reports we have received of the case, convince us that it was a political persecution, as unworthy of the honorable community in which it took place, as was the recent act of the parliamentum indoctum of North Carolina, in expelling a member who was politically obnoxious to the majority, on the ground that he was an atheist. For twenty years bills have been introduced in the House of Commons of every parliament of Great Britain, repealing that ecclesiastical humbug, which declares inter-marriages with the relatives of the deceased wife, within certain degrees, incestuous; but the Lords, those noble old gentlemen whose mission it is to brace their feet and keep the car of progress from bowling down the hill too fast, have successfully defeated them. We are glad to see that Governor Porter has had the justice and good sense to pardon Mr. McKenna, thereby saving his state the disgrace of imprisoning a respectable citizen in the penitentiary, for an offense which is no crime in the sight of right-thinking men. was to substitute a supreme court of trained judges, including the Ex-Chancllors and all the law lords, for the ridiculous appellate jurisdiction of the House of Lords, which still maintains the supremely outrageous theory that every man who succeeds to a title which gives a seat in the Peer's Chamber— whose lineal ancestor may have been created" because he was either a successful general, a wily politician, or a man with no brains but very large estate, or perchance some royal bastard or the lick-spittle companion in debauchery of some profligate monarch-is necessarily born with such a judicial capacity of mind that, without any legal training or education, he is qualified to decide the most subtle and intricate points of jurisprudence, and to affirm or reverse the decisions of the most experienced of the Queen's Judges at home or in the colonies-of a Denman, an Abinger, or a Cockburn. It is true that in practice the peers do not exercise this ludicrous privilege, as those conversant with the sittings of the House of Lords Court of Appeals at Westminister well known. Some five or six law lords actually do the work, sitting within the bar of the gilded chamber, while the lay lords-present in theory -are nearly always "conspicuous by their absence if present, do not vote. This, however, only tends still further to show the utter absurdity of that tenacity of privilege which has induced the Tory peers to compel the abandonment of a wise measure of legal reform submitted to them, in a Queen's speech, by a Tory Premier. or, In the course -A CORRESPONDENT of the New York Tribune has recently "interviewed" Hon. Sanford E Church Chief Judge of the New York Court of Appeals, with reference to an attempt which has been made to identify the latter, with what is known in that state as the "canal ring.' of this interview the following remarkable dialogue took place: Correspondent.-Have you noticed some newspaper attacks on the Court of Appeals and its judges? Judge Church.-Yes, I have Correspondent, Have you any idea who instigated it? Judge Church.-Yes, it was Francis C. Barlow. Correspondent.-Are you willing to state how you ascertained this? Judge Church.-Yes from the writer; not directly, but through another person. Correspondent.-Have you any idea what induced this attack? Judge Church.-I can not of course know the motive. I can only infer that he has taken advantage of the excitement on canal matters to vent his spleen against the court because he has happened to be unfortunate in his private and public litigations. Correspondent.-What do you think of it? Judge Church. It remind me of my brother Grover's remark, which he often jocosely makes. He says that up in Allegany, when a lawyer gets beaten in court, he has two remedies. One is to go down to the tavern and swear at the court, and the other is to take an appeal. As there is no ap>eal from this court, Mr. Barlow seems to have taken his only remedy. The Albany Law Journal, referring to this subject, says: necessary to state that there never was a more unfair and discourteous, if not inconsiderate, attack by the newspapers than that of some of the New York and New England journals, upon the character of Chief Judge Church and other members of our Court of Appeals. The present members of this court stand as high among the profession as any of those who have constituted it from its foundation nearly thirty years ago. We never had a more able, industrious and impartial appellate court, as a whole and in respect to its individual members than now; and it is a disgrace to journalism, that imputations which have been thrown out by certain journals on such flimsy excuses, have been allowed to go without anything more than a passing rebuke from the great majority of better informed and better tempered journals. And it is a humiliating sight, when the Chief Judge of the highest court of this state is compelled, by the force of public sentiment, to make an express denial of such baseless charges. For the sake of the dignity and sanctity of the judi cial office, and for the sake of the intelligence and courtesy of journalism, we hope this matter will not occur again." "It is hardly ---THE Nation in speaking of the canal swindles which are being unearthed -CONSIDERABLE surprise has been occasioned by the withdrawal by, the It is SEYMOUR D. THOMPSON, Editor. ST. LOUIS, FRIDAY, APRIL 23, 1875. } THE RECENT FEDERAL Court AcT.-Elsewhere we print a communication from a very competent practitioner, pointing out the important changes in the jurisdiction of the federal circuit court, created by the late act of Congress, published in a recent issue of this journal (ante, p. 209). We append thereto a recent opinion of Mr. Circuit Judge Drummond, of the seventh federal circuit, pronounced at Chicago, in the case of Osgood v. The Chicago, Danville and Vincennes Railroad Company, which expounds that part of the act which relates to the removal of suits to the federal courts. CHIEF JUSTICE BENJAMIN F. GRAVES has been re-elected to the Supreme Court of Michigan without opposition, being nominated by both parties. Senator Christiancy's successor on the bench is Isaac Marston, lately attorney-general of the state. Mr. Marston is of Irish birth and is about thirty-five years old. He graduated in the class of 1861, at the law department of the university of Michigan. He owes the compliment of his election mainly to his extraordinary ability as attorney-general. He was appointed to the office last spring to fill a vacancy, and left it at the end of nine or ten months, with the unquestioned reputation of having been the most efficient attorney-general the state has ever had. THE ADMINISTRATION OF JUSTICE IN UTAH.-The difficulties in the way of bringing to punishment any member of the "Church of Jesus Christ of Latter Day Saints," is thus sketched by a correspondent of the New York Herald: The act of Congress, approved June 23, 1874, entitled "An act in relation to courts and judicial officers in the territory of Utah," removed one serious difficulty by providing means for empanelling juries, and under this law federal courts in Utah have been making an ineffectual effort to administer the law and punish crime. But the section which provides for the making of jury lists is found to be defective, because the persons designated for this duty, being a Mormon (the probate judge of the county) and a Gentile (the clerk of the district court), select names alternately from the opposing elements of the population in Utah. This produces mixed juries, and as devout saints are influenced by counsel from their superiors, and are taught to regard an oath in a pagan court as of no binding force, it has been found impossible to convict offenders who hold positions in the Mormon hierarchy, no matter how heinous the crime they may have committed or how convincing the evidence produced. This was shown in the trial of Bishop Ricks, who was accused of murdering a prisoner committed to his custody as sheriff of Cache county some fifteen years ago, and who gave as an excuse that his victim was attempting to escape. The evidence adduced showed that the murdered man (David S. Keen by name) was lying asleep, wrapped in his blanket, on the floor of the log schoolhouse used as a jail, when the jailor Ricks and a confederate entered the building stealthily and discharged their revolvers at the prostrate man. The cause of this murder is supposed to have been the apostacy of the victim and the danger of his disclosing secrets which might be damaging to the church. "Dead men," says Brigham, "tell no tales." This is classed as a church murder, and the annals of the Mormon church are full of them. But notwithstanding the direct character of the evidence bringing the crime home to the zealous bishop, the jury (composed of nine Mormons, two apostates and one weak-kneed Gentile) brought in a verdict of not guilty, and the man was discharged. Jury Trials. The exasperating uncertainty of jury trials has become so proverbial as to create a serious doubt of their efficacy in civil suits. Many are in favor of dispensing with juries entirely, except in criminal trials, claiming that questions of private right can be more speedily and justly determined without the aid of this cumbersome and expensive machinery. There is no denying the defects of the system, but it could scarcely be wise to abandon so important a feature of our civil jurisprudence, without first making a serious and earnest effort to lop off its excrescences and supply its deficiencies. At the last commencement of the law department of the Michigan University, Mr. May delivered an address on "Trial by Jury," in which he insists upon certain reforms in the jury system as indispensible to its usefulness. To avoid tion of the rule of unanimity, and urges further modification the frequent disagreement of juries, he advocates the abrogain the rule of challenges, so that jurors might not be rejected on account of an opinion based upon previous knowledge of the case. previous knowledge, when the opinion formed is not of a character likely to influence their verdict, is so repugnant to common sense, that it is rapidly falling into disuse. It has no defenders upon principle. The effect of the practice. tends to lower the standard of intelligence, by excluding in cases of great notoriety, the well-informed, and elevating to the first rank as a qualification for the important duties of the juryman, the densest stupidity and the most profound ignorance. This fact has become pretty generally recognized, and knowledge of the case is no longer, in many of the states, considered as a ground of peremptory challenge. The practice of rejecting jurors, merely on account of such The merits of the other proposed reform, are not quite so well established nor so generally conceded. It is not a question as to the respective merits of two plans, one of which requires unanimity of opinion in the triers of a fact, and the others simply the agreement of a majority of two-thirds or three-fourths. The question is simply: how many minds should concur in finding the facts submitted to a jury? Should it be conceded that eight or nine, instead of twelve would suffice, then the other four of them ought to be dispensed with. It is unnecessary to retain as jurors, at the expense of litigants, three or four superfluous individuals, against whose judgment the verdict may go one way or another. It is difficult to understand what charm there is in the mystic number twelve, that those who contend against the policy of requiring unanimity in the verdict, should not suggest a reduction in the number of jurors. There is probably an empirical limit to the efficacy of multitudinous counsels in certain cases, and when that limit has been ascertained with reference to juries, if less than twelve, the reduction should be made, but the agreement should still be unanimous. There can be no possible advantage in having twelve jurymen to deliberate upon a verdict, to which it is only necessary that eight should agree. The disagreeing four are merely an incumbrance and a useless expense. Their presence in the jury-room usually tends to distract the minds of the others. It would be different if juries were deliberative bodies, whose province it was to discuss the questions submitted to them; but the presumption is that the facts have all been fairly presented, and the argument made by counsel. All that remains |