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is an established precedent in the State of Virginia that no man tried for defending the sanctity of his home should be found guilty."

The prosecuting attorney who represented the State in the case is reported to have fallen in with the general sentiment and approved the verdict.

So far as we have observed, there has been no dissent from the press, the pulpit or any other source in that State.

Now, if that be the status in that State, why should any man be arrested and hauled into the courts who shoots under like provocation? Why make the courts the vehicle of formally indorsing what the law prohibits?

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By the written law of Virginia and of every other State it is a crime for any man to take the life of another through private revenge, or for any other cause save in the extremity of defending his own life. When a jury renders a verdict of not guilty" on a confessed violation of that law, they bring the law and the courts into contempt. They have violated their oaths, and the judge who commends them is a self-confessed anarchist.

any case it rests with the people to make them so. There is no occasion, much less any right or privilege accorded to any man or body of men in this | country, to resort to violence or otherwise gratify their passions or wreak their vengeance in any other manner than through the orderly procedure of the courts under the forms of law.

We agree with the sentiment that obtains in Virginia-and we do not believe it is limited to that State so far as to concede that when a man invades a home and robs it of its virtue and brings irreparable shame and disgrace upon a family circle, he ought to be killed; and we go further and say that if, under the maddening influence of such a violation the protector of the home suddenly does the killing he But when a man has had time to ought to go free. cool and regain his self-control he is not excusable if he deliberately goes gunning for the respoiler instead of going to the courts for the lawful redress which is there assured him.

These are commonplace conclusions and comments upon this and similar cases. They do not have the flavor of chivalry and high courage which attends the act of avenging one's wrongs by shooting his enemy in the open, but the difference between them is the difference between the peaceful government of law and the reign of anarchy, with the desperado in command.The Bar, Official Journal of the West Virginia Bar Association.

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"Shooting a Judge."

The work of Mr. James Bryce on the American Commonwealth, published in 1888, has been almost unanimously accepted by Americans as a moderate and intelligent commentary upon the government and institutions of the great nation beyond the Atlantic. Englishmen who have read the reports of the Thaw case may be interested in hearing what Mr. Bryce, a barrister and jurist, has to say with regard to criminal practice in the United States. Mr. Bryce is obliged to say that this practice "is accused of being slow, uncertain, and unduly lenient both to crimes of violence and to commercial frauds. Yet the accusers charge the fault less on the judges than on the softheartedness of juries, and on the facilities for escape which a cumbrous and highly technical procedure, allowing numerous opportunities for interposing delays and raising points of law, provides for prisoners. Indulgence to prisoners is now as marked as harshness to them was in England before the days of Bentham and Romilly. The Legislature must bear the blame of this procedure, though stronger men on the bench would more often overrule trivial points of alties of the law represent the general judgment of law and expedite convictions." The path of the the public as to what a man should suffer for any stronger men on the bench" to whom Mr. Bryce particular offense. If they are not severe enough in | refers would not always be a smooth one. In a note

This is a government of law. Courts are instituted and maintained to enforce the law. They are instituted for the prime purpose of preventing just such a thing as occurred in this case that of a man "taking the law into his own hands," of avenging his own wrongs. The courts have supreme and exclusive jurisdiction in this regard. They are open to every citizen-the high and the low alike-whose personal or property rights have been invaded. They are presumed to afford an adequate and complete redress for every wrong a citizen may suffer.

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b. That he has property which he fraudulently conceals;

c. That he has rights in action, or some interest in any public or corporate stock, money or evidence of debt, which he unjustly refuses to apply to the payment of any such judgment or judgments, which shall have been rendered against him, belonging to the complainant;

d. That he has assigned, removed or disposed of, or is about to dispose of, any of his property with the intent to defraud his creditors;

to the foregoing passage he says: "Even judges suffer from this misplaced leniency. I heard of a case which happened in Kentucky a few years ago. A decree of foreclosure was pronounced by a respected judge against a defendant of good local family connections. The judge could not do otherwise than pronounce it, for there was practically no defence. As the judge was walking from the court to the railway station, the same afternoon, the defendant, who was waiting near the road, shot him dead. It was hard to avoid arresting and trying a man guilty of so flagrant an offense, so arrested he was, tried, and convicted; but e. That he fraudulently contracted the debt or inon an allegation of lunacy being put forward, he was curred the obligation respecting which suit is brought. ordered to be kept in an asylum, whence he was pres- The act further provides that when the defendant ently allowed to escape into Ohio, where, at the date is arrested and brought before the judge and is adof my information, he was living unmolested. There judged guilty of any of the offenses aforesaid, he shall was, I was told, a good deal of sympathy for him. be committed to the jail of the county, there to reChristy, of Dalry, the father of the famous Lady main until discharged according to law. The Grange, got into trouble in Scotland early in last cen- eleventh section of said act provides that such comtury for shooting a judge who had decided against mitment shall not be granted if the person aforesaid him, but he was not so indulgently dealt with." shall enter into a bond to the complainant in the penChristy, the murderer in 1689 of Lockhart, the Lord alty and in the securities prescribed in the precedPresident of the Court of Sessions, was executed, aftering section, conditioned that he will, within thirty having been tortured by the boot.-Solicitors' Jour-days, apply by petition to the Court of Common Pleas nal (London).

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The Effect of the National Bankruptcy Act on
State Insolvency Laws.

Some interesting points on the above question have recently been disposed of by the Supreme Court of the United States. A short synopsis of the proceeding is here given.

On the 31st day of March, 1906, a judgment was entered in the Circuit Court of the United States for the Middle District of Pennsylvania in favor of Maria P. Johnson against George H. Crawford and Walter S. Yothers, a partnership, trading as Crawford & Yothers, for $37,110.60. This was an action upon a contract for timber purchased by the defendants from the plaintiff. After the entry of said judgment a writ of fieri facias, an execution, was issued, which was returned nulla bona. Subsequently, and on the 20th day of December, 1906, on petition of plaintiff's attorney, Hon. R. W. Archbald, sitting in the Circuit Court of the United States for the Middle District of Pennsylvania, awarded a warrant of arrest for the defendants, in pursuance of the Act of Assembly of the State of Pennsylvania of July 12th, 1842, which act provides for the issuance of such a warrant upon the allegation that the defendant is guilty of:

a. That the party is about to remove any of his property out of the jurisdiction of the court in which suit is brought, with intent to defraud his creditors;

of the county, or to a judge thereof if the court shall not within that time be in session, for the benefit of the insolvent laws of the State of Pennsylvania, and that he will comply with all the requisitions of said law, etc., etc.

George H. Crawford, one of the defendants, was arrested on such a warrant, and when brought before the judge of the Circuit Court of the United States for the Middle District of Pennsylvania, he moved to quash the warrant of arrest, for the reason that the United States Courts had no authority to issue the writ upon which he was arrested, and that sections 915 and 916, respectively, of the Revised Statutes of the United States, which provide that:

915. "In common-law causes in the Circuit and District Courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the State in which said court is held for the courts thereof . . ."

916. "The party recovering a judgment in any common-law cause in any Circuit or District Court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court; and such courts may, from time to time, by general rules, adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise."

did not provide a remedy to reach the person of the defendant, but only the property of the defendant, Į and that, therefore, the court had no jurisdiction and no right to issue the warrant. This motion to quash was overruled and the defendant ordered to give a bond for his appearance before. the judge of said court for a hearing on the allegations in the petition and warrant. At such hearing, the defendant was adjudged guilty of having property, rights and credits which he concealed and refused to apply to the payment of said judgment, and he was accordingly committed to the common gaol of Lycoming county, in said Middle District of Pennsylvania, there to remain until discharged according to law.

Prior to said hearing, the defendant made another motion before the judge of said court to quash the proceedings, for the reason that the enactment of the general Bankruptcy Act of the United States, of July 1, 1898, under the authority given to Congress by the Constitution of the United States, acted as a suspension of all insolvency laws of the State of Pennsylvania, and that said insolvency laws being suspended, the Act of 1842, providing for the issuance of said warrant, was also suspended, and that the court had no jurisdiction over the defendant. This motion was also refused by the judge in an elaborate opinion, which opinion is appended to this article.

The defendant then presented his petition to the Circuit Court of Appeals of the United States, Third Circuit, sitting at Philadelphia, Pa., for a writ of habeas corpus, which writ was allowed, and upon the hearing he urged the same reasons before said court for his discharge, to wit: the want of jurisdiction; and upon due consideration by that court he was remanded and his writ dismissed, in an opinion by the Circuit Court of Appeals, which will also be found appended hereto.

The defendant then presented his petition, setting forth the facts in detail, and his various efforts to procure his discharge, to the Supreme Court of the United States for leave to file a petition for a writ of habeas corpus from that court and urged as grounds for said writ that he was confined by the order of a court without jurisdiction. This writ, upon due consideration, was refused and the defend ant is now in jail, according to law.

This case is res integra. It is valuable because it is the first case that has been passed upon by the highest court in the land on the question at issue. The result of it is that the insolvency laws of a State are not suspended by reason of the passage of the general Bankruptcy Act of the United States of July 1, 1898. The elaborate opinion of the Honorable R. W. ARCHBALD, sitting in the Circuit Court, very fully and clearly elaborates on the rights of the defendant and the force and effect of the Federal Bankruptcy Act.

It might be added that the plaintiff contended that section 916 of the R. S. of U. S. would sustain this writ, and that sections 990 and 991 of the R. S. of U. S. substantially provide for this remedy.

It was also contended, on behalf of the plaintiff, that this proceeding was not an insolvent law, and that it was strictly a proceeding against the property of the defendant, and for the sole benefit of the petitioning creditor, and in no way sought to distribute the defendant's property among all his creditors.

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Abolition of the Death Penalty.

The commutation by the English Home Secretary of the death sentence of Horace G. Raynor to imprisonment for life, in connection with the Thaw trial in this city, has renewed the discussion and given a material impetus to the movement to abolish capital punishment. The strong adverse criticism of the action in the Raynor case recalls similar utterances attending every successive step in mitigation of the severity of criminal penalties. On the other hand, it is believed, from the number and character of utterances in the press approving the leniency shown to Raynor, that public opinion in England is gradually adjusting itself to the adoption of life imprisonment as the regular punishment for murder in the first degree.

An editorial in the New York Evening Post on Wednesday last is significant of a similar process of adjustment in progress here. According to our recollection, that newspaper has previously advocated the retention of the death penalty, and the modification of its views, to be gathered from its latest utterance, would indicate that the arguments against capital punishment are gradually prevailing.

Our own position on the subject is not in the least founded upon sentimental scruples about "the right of the State any more than that of an individual to take life." It is ridiculously inconsistent to quibble on this point of abstract ethics, in view of the fact that most people believe that in cases of aggravated assault upon national honor, or for the protection of commercial interests, it is justifiable to sacrifice thousands of valuable lives in war. If we believed that the killing of a depraved or abnormally constituted person constituted a more potential deterrent against murder, we should favor leaving the law as it is. We do not disapprove of the statutes existing in a few States providing that if any person already under sentence of life imprisonment be guilty of homicide he shall be put to death. Such a statute has been declared constitutional (ex parte Finley, Cal., 81 Pac. 1041), and it would seem highly expedient that one should not be permitted to become a privileged murderer because he is already suffering the

extreme penalty of the law. It is quite possible that in such cases the existence of the death penalty would have considerable efficacy, and, as applied to such persons, conscientious scruples against the taking of life would seem puerile fanaticism.

The ground which we have uniformly urged in favor of the abolition of capital punishment as the ordinary penalty for murder in the first degree is, as stated in the article from the Post, above referred to, that "those American States which have for many years abolished the death penalty have the fewest murders in proportion to population." We believe that comparative statistics on the subject will show that capital punishment is not more influential than imprisonment for life as a preventive of murder. There seems something approaching absurdity in arguing for the efficacy of the death penalty in a place where homicides abound, as they do in the city of New York.

the desire of the means to tackle. Among them was the capture of enemy property in maritime warfare. It contented itself with a pious wish-one of its many roeux-that the next Congress should consider the inviolability of private property at sea. The movement in favor of this change starts with Benjamin Franklin, the American scientist-statesman, has be hind it the voices of the United States and Italian governments, of many old and nearly all living continental publicists, of innumerable Chambers of Com merce and public and international bodies of varying authority and importance, and, finally, of a growing body of English opinion, and of the present Lord Chancellor. On the other hand, it has been hitherto opposed by the governments of England and France, and by most of our leading jurists and naval experts. The Declaration of Paris of 1856 limited the right of capture, save in cases of contraband and blockade, to (1) enemy goods on enemy ships, and (2) enemy On the other hand, the existence of the death pen- ships themselves. But it is urged that this position alty is a constant embarrassment in convicting of is a vain compromise between the old spirit of warmurder in the first degree any woman or any man fare which encouraged the spoliation of the enemy, of temperament so abnormal that the plea of insanity and the modern conception which regards war priseems plausible, or who offers sentimental extenuat-marily as a relation between State and State, and dising circumstances, or whose prosecution is based courages interference with private persons or their Private property, it is said, has been made upon circumstantial evidence. There is apt to be goods. sufficient fear of a great and irremediable mistake to inviolable on land by the Hague Land Code of 1899; the Hague Sea Code of 1907 must make it inviolable cause the average jury to disagree. We believe that at sea. But this argument leaves out of sight that imprisonment for life would act as a greater deterthe Hague laws allow the imposition of requisitions rent than the death penalty, because of the greater and contributions in land warfare, which, whatever certainty of the infliction of the former that would their specious names, amount to seizure of the pri be apprehended, and the number of persons who, in vate property of non-belligerents. Apart from this, the face of the certainty of either penalty, would enemy ships and enemy cargoes stand on a perfectly choose the capital one is by no means small. different footing from the family possessions which a belligerent finds upon land. They are not merely, not primarily indeed, private property, because they are also national commerce. As Captain Mahan puts it, "They are private in ownership, but national in use." And it is as commerce-i. e., in their national character that the belligerent seizes and confiscates them, rightly and reasonably, as our leading jurists hold. He always has attacked, and always must attack, the commerce of the enemy, for commerce provides, directly or indirectly, the sinews of war, and victory goes not only to the country with the big battalions, but to the country with large resources. On land he besieges the towns and cuts the railways to prevent trade. On sea he tries to drive off or capture the merchant marine of his foe. At the outbreak of war he implicity forbids enemy subjects to trade in their own vessels, and if they disobey he confiscates their property as a warning. In the great maritime wars of the last two centuries the destruction of the peaceful marine has been as vital a part of the victor's operations as the destruction of menof-war. Nor is there any reason to think that the

The objection to the abolition of capital punishment

most frequently heard is that the liability to life imprisonment has comparatively little terror, because of the abuse of the pardoning power. It would be unfair, as well as futile, to deny all force to this consideration, but, in spite of it, the argument for abolition is of greater weight. If the present penalty be continued, there will also continue the succession of

disagreements and new trials, with ultimate acquittal or convictions of minor degrees of homicide, with which we are familiar. The pardoning power as to persons serving life sentences has not been exercised to as great and aggravated a degree as many persons assume, and the remedy for the defect, as far as it has existed, lies in holding governors to a strict sense of responsibility to public opinion.-N. Y. Law Journal.

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The Capture of Private Property at Sea. The first Hague conference left to its successor, when it should meet, the decision of many burning questions of international law which it had not itself

Declaration of Paris has changed the conditions; for it has left the right of capturing enemy ships intact. And that it is the ships which are important is evidenced among other things by the large bounties with which foreign governments subsidise their shipping. The proposed change, so far from assimilating land and maritime warfare, would introduce a profound difference between them which would be unfair alike to naval powers and to land merchants. It would give an immunity to commerce at sea which it does not possess on land. More than this, it would involve, as Lord Selborne pointed out in 1862, the abandonment of one of the fundamental principles in the law of nations that in war governments are identified with their people. It admits the contrary principle of a political war and a commercial peace. On grounds of humanity the present practice cannot be impugned, and, putting aside all questions of expediency, the interests of peace itself are best served by maintaining it.-N. De M. B., in The Law Journal (London).

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Respondeat Superior as Affecting Drivers of Vehicles.

The following editorial note from the Law Journal (London) for April 20, 1907, is given in full, because it summarizes three English cases, all of which, in our judgment, were correctly decided, and discusses questions that have frequently been considered in this place:

"If A sustains injuries through the negligence of B's servant in driving a vehicle belonging to C, the question whether B or C is responsible has more than once perplexed the courts. No general rule can be laid down for its solution; it must depend to a large extent on the facts of the particular case. In Quarman v. Burnett, a case with which the law student usually makes acquaintance at an early stage of his career, the Court of Common Pleas held that a couple of ladies who had their own carriage, but always hired horses and a driver from a livery stable keeper, the driver being always the same person, were not liable for his negligence, though he wore their livery and received a small weekly payment from them. On the other hand, in Jones v. Scullard, the latest case of this kind, in which Lord Russell of Killowen reviewed the authorities, the Chief Justice held that where the defendant, the owner of a brougham and horses was supplied by a livery stable keeper with a coachman who had driven him continuously for six weeks, there was evidence that the driver was acting as his servant. The ownership of the horses, according to Lord Russell, was a very material circumstance; for where they belong to the owner of the carriage he is entitled to regulate their pace, and the driver is under his control as to the manner of his

driving. Not so where they belong to the livery stable keeper-then the driver may lawfully refuse to obey his orders as to the rate of speed. In Perkins v. Stead, which came last week before a Divisional Court, the facts were that the defendant had bought a motor car, and the vendors had supplied a chauffeur to drive him for a short distance on his journey home, during which the car collided with the plaintiff's motor bicycle. The County Court judge held that the case was governed by Jones v. Scullard, for the chauffeur was at the time of the accident under the control of the defendant, who was entitled to direct him how to drive; and the decision was upheld by Mr. Justice RIDLEY and Mr. Justice BRAY. If the agreement had been that the vendors of the car should deliver it at the end of the stage on which their chauffeur drove it the latter would no doubt have been acting as their servant, but the contract was construed as being that the defendant should take delivery before the journey began, the chauffeur being merely lent to him for this stage."

The distinction drawn by Lord Russell in Perkins v. Stead is in harmony with views we have expressed. Where the occupant of a carriage owns it as well as the horses it may be said that the driver is temporarily his servant and that the general master is not responsible either to the person in the carriage or to outsiders for the servants' acts. Where, however, the horses are let with the driver, and especially where a livery stable keeper furnishes horses, vehicle and driver, the latter is the servant of the livery stable keeper, who should be held responsible under the rule respondeat superior, both to the passenger and the public.

This subject is recurred to because there are several American dicta, both in judicial opinions and by text writers, to the effect that the responsibility of a livery stable keeper ends with the selection of competent servants. We believe there is no justification for so limiting the ordinary relation of master and servant.

It may be said that the recent decision of the Supreme Court of Minnesota in Cotton v. Willmore, 109 N. W. 835, tends to uphold a livery stable keeper's general responsibility for his servants' acts, and that in Routledge v. Rambler Automobile Co. the Texas Court of Civil Appeals (95 S. W. 749), made a similar ruling as to the responsibility of the owner of an automobile for negligence of its chauffeur hired out with the vehicle.-New York Law Journal.

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Effect of Agreement on the Character of

Fixtures.

When the courts, yielding to business necessity, relaxed the common law ruling that whatever is annexed to the soil belongs to the soil and permitted

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