carry the threats into immediate effect. People v. Scroggins, 37 Cal., 683. Argument to establish that proposition seems to be unnecessary in this case, as the legislature of the territory have enacted that a bare fear that a felony is about to be committed "shall not be sufficient to justify the killing" in such a case. "It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears and not in a spirit of revenge," showing that the court below could not have decided otherwise than they did without violating the statute law of the territory. Laws Utah, p. 60, sec. 112.

Weighed in the light of the adjudged cases it is clear that the evidence of previous uncommunicated threats is never admitted in the trial of an indictment for murder, unless it appears that other evidence has been introduced tending to show that the act of homicide was committed in self-defense, and that the evidence of such threats may tend to confirm or explain the other evidence introduced to establish that defense. Society, in my opinion, is deeply interested that criminal justice shall be accurately and firmly administered, and being unable to concur in the opinion and judgment of the court in this case, I have deemed it proper to state the reasons for my dissent.

NOTE. This is one of those cases in which a court is required to consider the effect of evidence, already introduced, as foundation for determining whether to admit or reject other proffered testimony. The majority, differing from the territorial court, on a mere question of fact, deemed that, consequently, the testimony which the trialjudge had rejected should have been received, while the dissenting judge took the same view of the fact with the territorial tribunal. The case, therefore, can hardly be said to decide anything in matter of law. On all sides it seems to have been admitted that, if it was doubtful whether or not the deceased fired the first shot, the defendant might be permitted to prove the previous threat, of which he had no knowledge at the time of the killing. This, it is said, the counsel for the government conceded.

Are the authorities to this proposition sound? It is to be regretted that this question was not discussed, and not distinctly passed upon. We do not propose to deny the proposition thus taken for granted; neither, as the judicial mind was not directed to this inquiry, does this decision require us to admit it. Let us see a little how it stands in principle.

The deceased was a mere third person-not a party to the cause-and, according to general rule, what he said, not of the res geste, was not admissible. Neither, in point of law, did his threat justify the killing. So much is plain. The killing was admitted. It was justified, if at all, or was reduced to manslaughter, by being done in self-defense; and the question of justification-the question whether or not there was malice-would depend on the facts, not as they might truly be, but as they appeared to the defendant. As he did not know of the threat of the deceased, how could its existence affect this question?

But, it is said, it renders more probable the contention, that the deceased fired first. Perhaps it does; but, for all that, one can not easily distinguish this from a great deal of other hearsay-evidence, which is rejected. If a man sues his wife for divorce, by reason of adultery committed with A, and there is some evidence, the court will not permit him to eke it out by proof, that A was heard to say he meant to seduce her. Even if he had confessed to actual seduction, this could not be introduced against her. If he was dead at the time of the trial, like the deceased in a murder case, that could make no difference. To permit such evidence would violate a necessary rule, though, in some instances, it might really be helpful to a jury.

But the proposition is, that an uncommunicated threat shows a seeking, by the deceased, at the time of the killing, of the defendant's life. If this seeking, unknown to the defendant, did exist, it did not justify the killing. So are all the authorities, and such is sound reason. If, on the other hand, the deceased fired the first shot, the defendant was justified in firing in self-defense, whether there had been a previous threat or not. The threat, or nonexistence of the threat, could neither create nor take away

a justification. Being unknown to the defendant, it could not even mislead him to think there was a justification, or a necessity, for the killing. Add to this, it was, as just said, mere hearsay. If it had been communicated to the defendant, it might properly have influenced his conduct, as giving color to appearances. Not being communicated, it did not, in fact, influence his conduct; it was not a factor entering in any way into the killing; there is no pretense that it justified it in law. All that was done would have taken place just the same, had there been no threat. If this evidence was properly admissible, why is not any other hearsay-testimony, indicating that the deceased was more likely to make an attack on the defendant than some other person would be?

We might extend this note much further, with showings that what was there assumed to be law is, on principle, contrary to analogies, derivable from other parts of the law of evidence. Still, we do not say that the doctrine thus assumed is not sound; we only regret that the question was not discussed, and not decided, by this highest court in the land. J. P. B.

BOOK NOTICES.

REPORTS OF CASES IN THE SUPERIOR COURT OF CINCINNATI-By R. D. & J. H. HANDY. Revised and Edited by LEWIS ESTE MILLS. Volume 1. Cincinnati: Robert Clarke & Co. 1877.

The Superior Court of Cincinnati was established in 1854, and consists of three judges. Some of the ablest jurists of Ohio have had seats on the bench of this court-Gholson, Storer, Stanley Matthews, Alphonso Taft. The character of any court depends upon its judges, and the character of the judges of the Superior Court of Cincinnati is what gives value to this series of reports. The volume before us is a reprint of Handy's reports. The two volumes of the original are here published in one, the former paging being preserved and added, showing what cases have been overruled or affirmed, and referring to subsequent decisions on the same subject.

D.

COMMENTARIES ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN ENGLAND AND AMERICA.-By JOSEPH STORY, LL.D. Twelfth Edition. Carefully Revised, with notes and new cases added by JAIRUS W. PERRY, author of the Treatise on Trusts. In two volumes. Boston: Little, Brown & Co. 1877.

For lucid arrangement, exhaustive research, solid learning in combination with practical usefulness, the Commentaries on Equity stand at the head of that remarkable series of legal works which came in such quick succession from the pen of Mr. Justice Story. In the variety and extent of his productions, Judge Story has no equal among English and American legal authors or judges. Book-writing was not the main business of his life. He discharged fully and faithfully his judicial duties. He remained every winter at Washington in attendance upon the Supreme Court. He was in itinere every spring and fall in his circuit. The memorials of his judical labors in the Supreme Court are found in his great and luminous judgments upon Amiralty, Commercial, Constitutional, and International law. Perhaps no federal justice ever did more work in the Circuit Courts than he-as the reports of Mason, Gallison, Story, and Sumner conclusively demonstrate. As Dane Professor of Law in Harvard University, he was always at his post, and into no other labor did he infuse more of his characteristic enthusiasm. His great Treatises were written to discharge the duties devolved upon him by the celebrated Nathan Dane, who, when he founded the Dane professorship by a gift-munificent for that time-of $10,000, requiring of the incumbent of the chair the production of certain legal works.

In the order of time, the present work on Equity

Jurisprudence was commenced immediately upon the publication of the Conflict of Laws, in 1834, or when the author was five and fifty years of age. His mental constitution, legal aptitudes and preferences, and long judicial administration of equity jurisdiction combined specially to fit him for a treatise on this subject. He entered upon its preparation with his usual ardor, although, as appears from his correspondence with Chancellor Kent, he did not at first adequately comprehend the magnitude and difficulty of the undertaking. The correspondence between these, the most eminent of American jurists, as given in the Life and Letters of Judge Story by his son, is full of deep interest to every person who reveres the memory of these great and noble men. Under date of May 17, 1834, Judge Story writes to Chancellor Kent: "My next work will be a Treatise on Equity Jurisprudence, in which I shall borrow freely from your labors. * * It will be purely elementary as to principles and practice, and will probably occupy a volume of 400 or 500 pages. I shall follow your example of ascending to the sources." Instead of a small volume of the size here indicated, the work grew into two large volumes substantially as it stands to-day. His facility of preparation and writing (for he did all the work with his own hands, down to making the index), was marvellous. The first volume of the Commentaries on Equity was finished in 1835-the next year after it was begun-and was published in the beginning of 1836. The second volume was entered upon before he was called to Washington in the fall of the year just named. "But immediately upon his return to Cambridge in the spring he devoted himself to its composition with great assiduity. By the middle of August it was printed, having occupied him only about six months, during which time he had attended to all his judicial and professional duties with his usual activity." 2 Life and Letters of Joseph Story, 221. Such facility of execution is, so far as we know, quite unexampled among legal authors. Mr. Justice Story astonished the world of law by the rapidity with which he produced his books, as much as did Sir Walter Scott, the world of literature.

At his death he had in contemplation other works on some of the most important subjects. Speaking of his future plans his friend, the late Senator Sumner, says: "His last work was on Promissory Notes. Had he lived, he would next have treated the Law of Shipping, a subject for which he was well prepared, and, after this, the Law of Insurance. Comprehensive commentaries on these branches would have completed his course on commercial law. He would, then, have returned to Equity, and finished the consideration of that ample department, by a work on its practice, which would have been the companion to his Commentaries on Equity Jurisprudence and Equity Pleading. The whole subject of Admiralty stood next in order. To this work Chief Justice Marshall often pressed him, saying that of all persons in England or America, he was the most competent to do it. This labor was to have been followed by one grander still, on the Law of Nations. And when all these vast, self-imposed juridical tasks had been accomplished then he was to employ his still constant pen in the reminiscences of his times and contemporaries, somewhat after the manner of Charles Butler, the learned lawyer and gentle scholar, whose pleasant book he enjoyed greatly." Mr. Sumner justly adds: "He died with plans of labor stretching before him, which might daunt the youngest and most courageous heart. But to all these, he looked forward as a pastime and delight."

It would be an agreeable task to enter upon a critical examination of the general merits of Judge Story's

works. An impression prevails to some extent among the profession that his productions lack, not in learning, indeed, but in conciseness and practical value. But this view is in part erroneous, and in part overlooks the expressed design and purpose of his works. His style is clear and elegant, and not diffuse; and he intended to write commentaries, and not compilations or digests. It is only the case-lawyer with his narrow range of vision that objects to the copious learning with which he enriches his pages drawn from ancient and contemporary sources throughout the commercial and civilized world. His writings have done more to make our jurisprudence known and respected abroad than those of any other American author or jurist. Mr. Webster was well justified in speaking of his death as a "calamity which will be felt by every Bar throughout the land, by every court, and, indeed, by every intelligent and well-informed man, in or out of the profession. It will be felt still more widely, for his reputation had a still wider range. In the High Court of Parliament; in every tribunal in Westminster Hall; in the judicatories of Paris and Berlin, Stockholm and St. Petersburgh; in the learned universities of Germany, Italy, and Spain; by every eminent jurist in the civilized world-it will be acknowledged that a great luminary has fallen from the firmament of public jurisprudence."

The present edition of the Commentaries on Equity Jurisprudence contains all of the original text as Judge Story left it in the fifth edition, together with the additions to the text made by the late Judge Redfield in the eleventh edition, including also the notes of the author and of preceding editors with which the notes of the present editor, who is so favorably known by his work on Trusts, have been incorporated. In addition to the merit of being brought down to date, this edition is the most complete and perfect that has yet appeared. J. F. D.

RECENT LEGISLATION.

MISSOURI LEGISLATURE-SESSION OF 1877.

AN ACT to amend Section 47 of Chapter 169 of the General Statutes of Missouri, concerning practice in civil cases.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. Section 47 of Chapter 169 of the General Statutes of Missouri, is hereby amended so as to read as follows: Sec. 47. When the evidence is concluded, and before the case is argued or submitted to the jury or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing, and shall be given or refused. The court may of its own motion give like instructions, and such instructions as shall be given by the court, shall be carried by the jury to their room for their guidance to a correct verdict according to the law and evidence.

Approved March 20th, 1877.

AN ACT authorizing the withdrawal of certain Military Claims from the office of the Third Auditor of the United States Treasury at Washington, D. C., filed in said office in pursuance of an act entitled "An Act to audit and adjust the War debt of the State," approved March 19, 1874.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. That the Adjutant General of Missouri be, and is hereby required without unnecessary delay to withdraw from the office of the Third Auditor of the United States Treasury at Washington, D. C., all mili

tary claims regular and irregular filed in said office in pursuance of an act entitled "An Act to audit and adjust the war debt of the state," approved March 19, 1874, and all vouchers and papers relating thereto; and that said claims when withdrawn by the Auditor General shall be placed in the office of the Acting Paymaster General of Missouri, and there to remain subject to the order of the claimants.

SEC. 2. All acts and parts of act inconsistent with this act are hereby repealed.

Approved March 16th, 1877.

AN ACT making illegal voting a felony, and prescribing its punishment, and making an attempt at illegal voting a misdemeanor, and prescribing its punish

ment.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. Any person who shall knowingly vote at any election held in pursuance of the laws of this state, or any municipality thereof, when not entitled thereto, shall be held and deemed to be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for a period of not less than two years nor more than five years.

SEC. 2. Any person who shall knowingly attempt to vote at any election held in pursuance of the laws of this state, or any municipality thereof, when not entitled thereto, shall be held and deemed to be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than $25, nor more than $100, or by imprisonment in the county jail of the county in which such attempt is made, for a period of not less than thirty days, nor more than six months, or by both such fine and imprisonment.

SEC. 3. All acts and parts of acts inconsistent with this act are hereby repealed.

Approved March 20, 1877.

AN ACT to Amend Section 16 of Chapter 131 of the General Statutes of Missouri, the same being Section 16 of Chapter 145 of Wagner's Statutes.

Be it enacted by the General Assembly of the State of Missouri, as follows:

SEC. 1. That Section 16 of Chapter 131 of the general statutes of Missouri, be, and the same is hereby amended so as to read as follows:

SEC. 16. If any witness to any will shall reside without the United States, or out of this state, and within the United States, or within this state, and more than forty miles from the place where the will is to be proved, or if such witness shall be prevented by sickness from attending at the time when any will may be produced for probate, such clerk or court may issue a commission annexed to such will and directed, if the witness resides out of the United States, to any court having a seal of any state, kingdom, republic, empire, or mayor, or any chief officer of any city or town having a seal, or to any minister or consul of the United States to any country in which such witness may reside; if without this state, and within the United States, to any court having a seal, or to any notary public in the state, territory, or district in which such witness may reside, and if within this state, to any court having a seal, or judge thereof, justice of the peace, notary public, mayor, or other chief officer of any city or town in the county where such witness may reside, empowering him to take and certify the attestation of such witness.

Approved March 20, 1877.

TENNESSEE LEGISLATURE-SESSION OF 1877. AN ACT to provide a Special Commission of Arbitration

for hearing and trial of causes now pending in the Supreme Court.

SEC. 1. Be it enacted by the General Assembly of the State of Tennessee, That the governor of the state appoint three persons, of established character of learning in the law and personal integrity, who shall compose a special "Commission of Arbitration" having jurisdiction and power to hear and determine such civil causes now or hereafter pending in the Supreme Court of Tennessee at Jackson, as may be submitted to the said commission of the said Supreme Court, with the consent of the parties on both sides, which commission shall report its decisions or awards to the Supreme Court when in session, which decisions or awards shall become and have the force and effect of judgments or decrees of the Supreme Court, subject, however, to the approval or disapproval of said court. Provided, however, the said commission shall not hear and determine any case without the consent of the parties thereto or their solicitors or attorneys of records which consent may be presumed unless objection thereto be filed in writing in said Supreme Court, and within ten days after the cause be ordered by the Supreme Court to be transferred to the commission for hearing or trial and decision; Provided, no additional expense shall be incurred by the state by reason of the commission sitting in the city of Memphis.

SEC. 2. That said commissioners shall before entering on the discharge of their duties take an oath of office similar to that prescribed by law to be taken by judges of the Supreme Court, and may select and appoint one of their number to preside and act as chief commissioner, and may sit for trial and hearing of causes at Jackson and Memphis, as the convenience of suitors and parties may make proper.

SEC. 3. That the clerk of the Supreme Court at Jackson, in person or by deputy, shall attend upon said commission wherever it may sit, and in all things perform the duties of clerk of the commission; and the sheriff of the county wherein the commission may sit, shall attend upon the commission in session, and shall perform the duties prescribed by law to be performed by sheriffs in attendance upon courts of the state, and shall receive the same compensation therefor.

SEC. 4. That the Supreme Court in session at Jackson shall have power to arrange the order of business and hearing or trial of causes, in such manner as will promote the objects and purposes of the said commission.

SEC. 5. That the said commission shall have the powers of the courts of Tennessee to enforce the preservation of order and punish contempt.

SEC. 6. That in case of the disqualification of one or more of the commissioners to act in any case submitted under this act, the place or places of such disqualified, may be supplied by the election of members of the bar in attendance, in the manner as prescribed by law in respect of such elections in the circuit or chancery courts, and the person so elected shall take the oath as prescribed in case of the commissioners appointed by the governor.

SEC. 7. That vacancies occurring in the said commission during its continuance may be filled by the governor for the unexpired time; and the opinions and decisions of the commission shall not be reported in the reports of the state, and shall have no force or effect as precedents, and the compensation of the commissioners shall be at the rate of $3,000 per annum, and shall be paid as the judges of the Supreme Court are paid, but only for the time actually in session, and the incidental expenses of the commission shall be paid as the incidental expenses of the Supreme Court are paid, upon the warrant of the Comptroller of the State; and the term of office of the commissioners shall not con

tinue longer than two years from this appointment, and shall terminate sooner if the business submitted to them can be sooner discharged.

SEC. 8. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it. Approved March 23,

Passed February 21st, 1877. 1877.

THIRTIETH GENERAL ASSEMBLY OF ILLINOIS.

AN ACT to provide the manner of proposing amendments to the Constitution, and submitting the same to the electors of this State.

SEC. 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That amendments to the Constitution of this State may be proposed by joint resolution in either house of the General Assembly, and if the same shall be voted for by two-thirds of all the members elected to each of the two houses in the manner provided by section 2 of article 14 of the Constitution, the amendment or amendments proposed shall be submitted to the electors of this State for adoption or rejection in the manner hereinafter provided.

SEC. 2. Such amendment or amendments shall be published in full by the Secretary of State, in at least two newspapers at the seat of government. Such publications shall be made at least three months before the next election of members of the General Assembly ensuing the passage of said proposed amendment, with notice prefixed thereto that at said election said proposed amendment or amendments will be submitted to the electors of this state for adoption or rejection.

SEC. 3. The county clerks of the respective counties of this State, shall with the election notices of the next succeeding election of members of the General Assembly, ensuing the adoption of said proposed amendment or amendments, and in the manner required by law for notices of general elections, give notice that at such election said proposed amendment or amendments will be submitted to the electors of this state for adoption or rejection, which notices shall set forth in full such proposed amendment or amendments.

SEC. 4. At such election, on the ballot of each elector voting upon the proposed amendment or amendments, shall be written or printed the words: "For proposed amendment to section of article of the Constitution," or "against the proposed amendment to section of article of the Constitution."

SEC. 5. The ballots cast for or against the proposed amendment or amendments to the Constitution shall be by the judges and clerks of such election received, canvassed and returned to the county clerks of their respective counties, at the same time and in the same manner as the ballots cast at said election for members of the General Assembly are by law required to be received, canvassed and returned to said clerk.

SEC. 6. The county clerks of the counties respectively, with the assistance of two justices of the peace of the county,shall at the time he opens [they open] the returns and makes [make] abstracts of the votes cast at such election for officers, also make abstracts in duplicate of the votes cast for and against such proposed amendment or amendments to the Constitution. And immediately after the completion of said abstracts the county clerk shall enclose one of the same in a sealed envelope and indorse thereon the words: "Abstract of votes for and against the amendment of the Constitution," and address and mail the same to the Secretary of State, and shall file the other of said abstracts in his office.

SEC. 7. The Secretary of State, auditor, treasurer, and attorney-general, or any two of them, in the presence of the governor shall proceed, within twenty days

after the election, and sooner if all the returns are received, to canvass the votes given for and against said amendment or amendments, as shown by said abstracts; and if it appears that a majority of the electors voting at said election have voted for the proposed amendment or amendments, the same shall, by said board of canvassers, be declared adopted, and from thence become a part of the Constitution of this state, and the governor shall cause proclamation to be made of the result of the vote, and that said amendment has become a part of the Constitution, by publication in at least two newspapers published at the seat of government; but if it shall appear that a majority of the votes polled are against said amendment or amendments, the same shall be null and void.

SEC. 8. Whenever any amendments to the Constitution shall have been proposed to, and adopted by the electors of this state in manner provided by this act, the same shall be enrolled and numbered in the order of time in which they may be adopted and preserved by the Secretary of State among the records of his office.

PRACTICE IN CRIMINAL COURT-APPEALS-WHEN JUDGMENT AFFIRMED ON MOTION.-Where an appeal is allowed from the Court of Criminal Correction, without an order of the court, directing that the appeal should operate as a stay of proceedings, and the appellant fails to file with the clerk of the Court of Appeals, at any time, a transcript of the record, as required by law, for the due prosecution of his appeal, the judgment will be affirmed on motion of respondent, who produces a duly certified transcript of the record. The case stands upon a similar footing with civil cases in which the appellants fail to file their transcripts in proper time. [Citing Wagner's Stats. 1114, 1115, §§ 16, 17; State v. Armstrong, 46 Mo. 588.] Judgment affirmed. Opinion by LEWIS, C. J.-State v. Jilz.

PRACTICE AND PLEADING VARIANCE BETWEEN PETITION AND REPLY-DIFFERENT CAUSES OF ACTION.-Where it can not be told from the pleadings, or the evidence offered under them, on what legal cause of action the plaintiff seeks to recover, an objection to the introduction of evidence should be sustained. When, from petition and reply, it is uncertain whether plaintiff intends to rely upon an allegation of money received by defendant to plaintiff's use, an action for breach of guaranty, or for violation of the implied obligation of a factor to use ordinary diligence in selling to solvent persons, the plaintiff should be compelled to amend his pleadings before proceeding to trial. The reply should be consistent with the petition. In this case plaintiff set up one cause of action in the petition, and two different causes of action in the reply, and the court erred in permitting him to introduce evidence in support of either. Judgment reversed. Opinion by HAYDEN, J.— Simon v. Inman.

SPECIAL TAX-BILLS-ESTIMATES TO BE INDORSED — CONSTRUCTION OF § 18, ART. VIII, CHARTER 1870.-In a suit brought on a special tax-bill for curbing, guttering, etc., done in front of defendant's lot in the City of St. Louis, under an ordinance providing for the grading, etc., of about twenty streets, it was held, in construing sec. 18, art. 8 of the charter of 1870, directing that every ordinance requiring such work to be done "shall contain a specific appropriation from the proper revenue or fund, based upon an estimate of cost, to be indorsed by the engineer on said ordinance for the whole cost of each street, part of street, or other object, respectively; and every contract shall contain a clause to the effect that it is subject to the provisions of the charter, that the aggregate payments

thereon shall be limited by the amount of such specific appropriation," etc., that it did not require a separate estimate for each street, and that such estimate should only be for the proportion of the work to be paid for by the city. This construction is in harmony with secs. 12 and 13, art. VI. [Citing opinion of Judge Wagner in State ex rel. Cavender v. The City of St. Louis, 56 Mo. 277; reviewing Wilter v. Cavender, decided by this court in December last.] Judge Hayden, concurring. Judgment affirmed. Opinion by LEWIS, C. J., BAKEWELL, J., dissenting.Seibert v. Cavender.

DEED OF INSANE PERSON-PLEADING.-The deed of a person of unsound mind is not void but only voidable, and evidence of the sanity or insanity of the maker of the deed is admissible under a complaint in the ordinary or statutory form for the recovery of the real estate conveyed. Judgment reversed. Opinion by HowK, J.-Freed et al. v. Brown et al.

SPECIAL VERDICT-WHAT IT MUST CONTAIN-VENIRE DE Novo. A special verdict must contain a finding by the jury, pro or con, as to every material fact in issue necessary to constitute the plaintiff's cause of action or the defendant's defense. The court can neither supply an omitted fact that is material nor render judgment on an imperfect verdict. Where the special verdict does not contain a finding by the jury on every material fact in issue the proper remedy is a motion to set aside the verdict and for a venire de novo. Judgment affirmed. Opinion by HOWK, J.-Houseworth et al. v. Bloomhuff et al.

DEBTS DUE A DECEDENT-RIGHT OF HEIRS TO SUE.Prima facie the right of action to recover a debt due a deceased person rests in his executor or administrator, but there are cases where a person dies intestate, without debts to be paid, and no administration is had upon his estate, where the heirs may sue for the debt. But in such a case the complaint must aver every fact necessary to give the heirs a right of action to recover the money. It must aver that there was no administration, no debts to be paid, and no widow, or if there was, that she had received her $500 or that the deceased left other property out of which that sum could be made. A complaint which does not contain these allegations is insufficient. Judgment reversed. Opinion by WORDEN, C. J.-Schneider et al v. Piesner et al.

CRIMINAL LAW - EVIDENCE IN MITIGATION-GOOD CHARACTER.-The constitution of Indiana provides that cruel and unusual punishments shall not be inflicted and that penalties shall be proportioned to the nature of the offense. Art. 1, sec. 16. Where the defendant in a criminal prosecution offered to prove, in mitigation of punishment, that he had already been imprisoned in the county jail and state's prison for eighteen months for the same offense he was then being tried for, the evidence ought to have been admitted. Under the old law which devolved upon the court the duty of determining the punishment of the criminal, it was proper for the court to hear evidence in aggravation or mitigation. Under the present law the jury not only finds the guilt of the criminal but fixes his punishment and is fairly entitled to all the latitude which the court formerly exercised. It is error for the court to instruct the jury "that evidence of good character is admissible in criminal cases, and, where proved, is to be taken into consideration in determining the guilt or innocence of the accused," but, that "where the guilt is positively proved then good character will not benefit the defendant." Proof of good character constitutes an ingredient to be considered by the jury without reference to the apparently conclusive or inconclusive character of the other evidence. Judgment reversed. Opinion by NIBLACK, J.-Kistler v. State of Indiana.

JOHN SCHOLFIELD,

66

JOHN M. SCOTT,

Associate Justices.

PRACTICE JUDGMENT FOR RESIDUE AFTER ALLOWING SET-OFF SWORN TO.-Where the plaintiff proceeds under section 37 of the practice act of 1874, by filing his affidavit with his declaration, and the defendant files the general issue with notice of set-off, with an affidavit of a defense to a given amount, if the plaintiff admits a deduction of such sum, it is proper to render judgment in his favor for the residue without a trial. Opinion by SHELDON, C. J.Mayberry v. Van Horn.

ROAD TAX-LIMITED TO FORTY CENTS ON THE $100.1. Under sec. 120 of the Road and Bridge Act of R. S. of 1874, the commissioners of highways can not levy a tax exceeding forty cents on each $100 valuation of property for making and repairing bridges, etc., except authorized by a vote of the people of the town, and if they attempt to do so, the excess may be enjoined. 2. The tax which the commissioners of highways are authorized to levy not exceeding forty cents on the hundred dollars under sec. 16, of the road law R. S. 1874, is payable in labor on the highways, while that authorized under sec. 120, is a money tax, to be collected as other taxes. Opinion by SHELDON, C. J.Mee v. Paddock et al. EXECUTION DISTRIBUTION OF PROCEEDS OF SALE UNDER-ORDER OF LIEN ON PERSONALTY.-1. Sec. 13 of chap. 77, R. S. 1874, entitled, "judgments and executions," which requires a distribution of the proceeds of sales under execution pro rata on the several executions according to their amounts, has no application to sales of personal property, but relates solely to sales of real estate where the lien of the judgments are concurrent. 2. A judgment is no lien upon personal property, and executions issued thereon become liens upon such property in the order in which they come to the officers hands, the first in point of time having a priority. Opinion by SHELDON, C. J.-Lawrence et al v. McIntire.

NEGLIGENCE-LIABILITY OF CITY IN RESPECT TO DEFECTIVE SIDEWALK-EXCESSIVE DAMAGES-PRACTICEHEARING TESTIMONY AFTER CASE CLOSED.-1. When a party, after night, in passing along a side-walk exercising ordinary care receives a fall by stepping into a hole in the walk, of which he had no previous knowledge, and it appears that the defect had existed for some time previous to the injury, the city will be liable in damages to him. 2. After a case is closed and during the progress of the argument, it is a matter of discretion with the court to receive further testimony, and its refusal to admit it can not be assigned for error. 3. It is not erroneous to refuse a new trial on the ground of newly discovered evidence which is only cumulative. 4. In an action against a city for personal injury growing out of a fall caused by a hole in the sidewalk, producing a partial paralysis and hernia, this court refused to set aside a verdict of $3,000, in favor of the plaintiff as excessive. Opinion by SHELDON, C. J.-City of Elgin v. Renwick.