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and if the shavings are so set on fire, and the property dard, appellaut; Frauk J. Whelau, respondent, v. Anof the ice company, in consequence thereof destroyed, sonia Clock Co., appellant; Central National Bank of Do recovery can be had against the said railroad com- New York, appellant, v. David Valentine et al., repany. Kennebec Ice and Coul Co. V. Wilmington & spondents; Mayor, etc., respondent, v. Broadway and Northern R. Co. Opinion per Curiam.

Seventh Avenue R. Co., appellant; People, respoud. (Decided Feb. 25, 1884.]

ent, v. Julius R. Thompson, appellant; Hiram Dilleu.

beck, respondent, v. Horace Dygart, appellant; James AGENCY-EVIDENCE-CONTRACT-QUANTUM MERUIT Van Tassel, respondent, v. N. Y., L. S. & W. R. Co., - WANT OF PRIVITY.-A. died intestate, seised of cer

appellant; Bank of Attica, respondeut, F. Metropoli. tain real estate, leaving four children and a widow.

tau National Bank of New York, appellant; Thomas Partition was made of the estate among the four chil

Colute, appellant, v. Thomas R. Sharp, receiver, etc., dren, and a portion set aside as dower for the widow.

respondent; Schuyler G. Chadsey, appellant, v. Wil. B., oue of the sons, assumed charge of the whole prop

liam H. Guion, respondent; Simon Vau Wickley and erty, and entered into a contract with C. for curbing

others, appellants, v. Mechanics and Traders' Ius. Co., aud grading streets, which were cut through it. B.

respondent; F. May Feeter, respondent, v. George D. subsequently left the city, leaving the estate in charge

Gilson, appellant; Albert C. Clark, respondent, v. Sid. of his counsel, who through an agent, D., entered into

ney Dillon et al., appellants; Lewis S. Chase, appel. a further contract with C. to finish sume grading and

lant, v. Second Avenue R. Co, respondent; Elizabeth curbing of the widow's share, which had not as yet | H. Putnam, respondent, v. Cornelia M. Stewart, apbeen done. On a suit brought by C. to recover for

pellant; People, ex rel. Pauline Friedland and others, grading and curbing, the widow having died after suit respondents, v. Albert F. Mitchell and others, trusbrought, evidence to prove agency was offered, as to

tees, appellants; Anna Seidlinger, respondent, F. which it was held that agency cannot be established

Brooklyn City R. Co. avd others, appellants; Louise by the declarations of an agent. Held further, that

Seidlinger v. Same. — Judgment reversed, new trial notices from the highway department to pave, and

granted, costs to abide event-Nancy C. Weston, apcontracts and settlements with the agent of the whole

pellant, v. Brayton Ives, president New York estate regarding the separate portions of the children,

Stock Exchange, respondent; John Hayes, rewere not evidence of authority in him to bind the de

spondent, Forty-second Street and Grand fendant to a contract for work on the dower farm.

street Ferry Company, appellant; Betsey Newman, apHeld further, the fact that work was done upon the

pellant, v. Abram Nellis, respondent; Samuel McRick dower farm in pursuance of notice from the city, lays ard, appellant, v. George C. Flint, respondent; Ezra no foundation for a quantum meruit against a remain

W. Acer, appellant, v. Levi Hotchkiss, impleaded, etc., derman. Creighton v. Boudinot. Opinion per Cur

respondent.-- Order of General Term affirmed, and iam.

judgment absolute rendered the stipula[Decided Jan. 28, 1884.)

tion, with costs-John H. Drake, appellant, v. Robert Seaman and another, respondents. Judgmeut reversed, with leave to plaintiff to amend

his complaint upon payment of costs — Didymus FINANCIAL LAW.

Thomas, respondent, v. Utica & Black River R. Co.,

appellant.-Judgment affirmed and judgment abNEGOTIABLE INSTRUMENT-CONTAINING PROVISO)-

solute ordered on the stipulation with costs-James H. ACCOMMODATION INDORSER-JOINT MAKER. - Where

Bennett and another, respoudeuts, v: Andrew R. Culan instrument is in the form of a promissory note, and

ver, appellant.- Order of General Term reversed and recites a certain sum payable at a certain time, the

judgment directed for the defendaut on the verdict fact that it contains a proviso that upon the happen

with costs-Metropolitan National Bank, respondent, ing of a certaiu event the note shall thereupon become

v. Win. B. Serret and others, appellants. -- Order of due and payable, does not destroy its character as a

General Term reversed and judgment of trial court promissory note. A party who iudorses a note as

affirmed with costs-Sherburne Shaw, respondent, v. surety, and for the accommodation of the maker to

N. Y., L. E. & W. R. Co.,appellant.-Order affirmed give him credit with the payee, is held to be a joint

and judgment absolute ordered for the defendant maker of the note, and to adopt the consideration of

with costs-Mary E. Works, appellant, v. City of Luckthe maker. Good v. Martin, 1 Col. 105; and S. C., 2

port, respondent. — Judgments of General and Specid. 218. Sup. Ct. Col., Feb., 1884. Kiskadden v. Allen.

ial Terms reversed and judgment of county judge of Opinion by Stone, J. (3 Pac. Rep. 221.)

Tompkins county affirmed with costs-People, ex. rel.
John H. Myers, respondent, v. Frederick Storm, ap-

pellant.-Judgment modified by inserting a clause COURT OF APPEALS DECISIONS.

adjudging priority of right to the surplus water in plaintiff as agaiust the individual defendants and is

case of deficiency, and as so modified, affirmed with THE following decisions were handed down Wednes- costs to the Erie railroad, but without costs to the day, Nov. 25, 1884:

other parties-Riley Read, appellant, v. Erie R. Co., Judgment affirmed without costs – Margaretta Hugh Jewett and others, respondents. Judgment Thomas, appellant, v. Francis C. Haggerman, respond. modified by striking therefrom all the interest on the ent. -Judgment reversed, new trial ordered, costs to various sums ordered to be paid and as thus modified, abide the event, Ellen Urquhart, appellant, v. City of affirmed with costs in this court to the city to be paid Ogdensburgh, respondent; E. C. Kellum, supervisor, by the plaintiff and without costs as to the other paretc., respondent, v. Jos. W. Clark and others, appel- ties-Mechanics and Traders' National Bank, appellants. Judgment affirmed with costs--Edward Hill, laut and respondent, v. Mayor, etc., of New York et appellant, v. John Blake et al., respondents; Charles

al., respondents and appellants. Order of General H. George and another, appellants, v. Richard R, Term reversed and judgment of Special Term affirmed, Grant and others, respondents; Van Buren Wheat and with costs-Rider Life Raft Co., appellant, v. Jobs another, respondents, v. Harvey Rice et al., impleaded, Roach, respondent, and George B. Stetson. Judge etc., appellants; Herkimer Co.National Bank, respondent, v. Alonzo Rust, impleaded, appellants; David

ment of General Term affirmed, with costs--Thomas

F. Baker et al., appellants, v. Levi Hotchkiss and Croniu, overseer, etc., respondents, v. Willard F. Stod. others, respondents.

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The Albany Law Journal.


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such Draconian legislation is necessary to protect the government servants and property in a commer

cial undertaking like the post-office.” The Times ALBANY, DECEMBER 6, 1884. very justly says that this act “is really a specimen

of savage legislation, and extraordinary punish

ments for trivial misconduct.” Such legislation CURRENT TOPICS.

generally defeats itself, and becomes a dead-letter. TR. DAVID DUDLEY FIELD has issued in a

In the case of the Mignonette cannibals, Baron pamphlet the fourth part of the Code of Civil Huddleston charged the grand jury strongly against Procedure of 1849, treating of the subject of evi

the defendants, and they found an indictment for dence. This has always seemed to us the most ad-murder, and on a trial a special verdict was taken, mirable of the work of the commissioners of that subject to the opinion of the court in banc. In his period. The subject is peculiarly adapted to codi- charge the Baron said: “It is impossible to say fication, and there are no such objections to such a

that the act of Dudley and Stephens was an act of codification as may be raised against general codifi- self-defense. Parker, at the bottom of the boat, cation. The vital principles of evidence are here was not endangering their lives by any act of his; expressed in two hundred and thirty short sec

the boat could hold them all, and the motive for tions. The adoption of this part of the code, and killing him was not for the purpose of lightening the publication of it, with references under each sec

the boat, but for the purpose of eating him, which tion, would furnish the most complete, concise and they could do when dead, but not while living. convenient treatise on evidence ever given to our What really imperiled their lives was not the presprofession in this country. Whatever else may fail,

ence of Parker, but the absence of food and drink. we hope this will be adopted this winter. Mr. It could not be doubted for a moment that if ParField says, in a prefatory note,

- one framed upon ker was possessed of a weapon of defense the model of the New York report was adopted in revolver — he would have been perfectly justified California, Oregon and Dakota more than ten years in taking the life of the captain, who was on the ago, and as I am informed, has there proved suc

point of killing him, which shows clearly that the cessful."

act of the captain was unjustifiable. It may be

said that the selection of the boy as indeed DudA privately printed memorial of the late Judge ley seems to have said was better, because his Addison Gardiner has reached us. It contains the

stake in society, having no children at all, was tributes of the Court of Appeals, and of the Mon

less than theirs; but if such reasoning is to be alroe county bar, with the address of Mr. William F.

lowed for a moment, Cicero's test is that under Cogswell, on behalf of that bar, and the address of

such circumstances of emergency the man who is the Rev. Charles E. Robinson, of Rochester. It is

to be sacrificed is to be the man who would be the prefaced by a fine steel engraving of the deceased.

least likely to do benefit to the republic, in which He was a strong, wise and upright judge, and all

case Parker, as a young man, might be likely to that is here said of him is true, and in good taste.

live longer, and be of more service to the republic

than the others. Such reasoning must be always Among the curiosities of legislation may be cited more ingenious than true. Nor can it be urged for the English Post-office Protection Act of 1884, a a moment that the state of Parker's health, which most remarkable example of the prescription of ex- is alleged to have been failing in consequence of his cessive punishment. It denounces a fine or imprison- drinking the salt water, would justify it. No perment of possibly twelve months for sending certain son is permitted, according to the law of this counarticles through the mail. The London Law Times try, to accelerate the death of another, Besides gives us an idea of the act, as follows: “It is of if once this doctrine of necessity is to be admitted, course an unwise thing to send a postul packet con- why was Parker selected rather than any of the taining a pair of scissors ‘not properly protected,' other three? One would have imagined that his and a judicious person will stick them into a cork, state of health and the misery in which he was at and wrap them round with cotton wool; but it is the time would have obtained for him more considsurprising to find that carelessness of the above de- eration at their hands. However it is idle to lose scription is punishable with a fine or imprisonment, one's self in speculations of this description. I am with or without hard labor for a period not exceed- bound to tell you that if you are satisfied that the ing twelve months, although the offending packet boy's death was caused or accelerated by the act of may have been detained at the post-office so that Dudley, or Dudley and Stephens, this is a case of no evil could possibly have happened. A post-office deliberate homicide, neither justifiable nor excusaletter box is likewise protected from every kind of ble, and the crime is murder, and you therefore contamination under similar penalties. It will be ought to find a true bill for murder against one or observed that there are no words such as wilfully, both of the prisoners." The cannibalism might or 'maliciously,' so that no mens rea or guilty in.be regarded with more toleration if the adults tent will be required. There is not even the word had given the boy a chance for his life by cast* negligently.' We are quite unable to see why | ing lots, or if the boy and one of the adults had

Vol. 30 - No. 22

sacrificed the other adult without resort to lot. human nature, for tact, for wit and good-nature, But the two elders seemed to have realized the self- for self-possession and ready resources, he was ishness of guzzling Jack and gorging Jemmy,” in remarkable. In one point he was pre-eminent

almost unrivalled - par Thackeray's Ballad of “Little Billee,” without the

namely, his power of statement, providential rescue in that case.

which of itself was better than most men's argument. He was remarkably handsome, reminding

one of the portraits of Fox; he had a noble voice; The English law journals are now exercised about

his elecution was forcible, dignified and fluent; and the special verdict. They say the proper course

he was a consummate actor and master of facial exwould have been to direct a conviction, and reserve

pression. In short, he was an easy master of the the point of law. They say the court cannot pro

art of advocacy, and it was a delight to lawyers as nounce a verdict of guilty; that there is no such

well as to juries and the people to listen to him. verdict, and they do not exactly see how the prisoner can again be jeopardized. This is a point of borne up bravely and cheerfully against a painful

His nature was genial and generous, and he had practice which ought to be well settled, and with which the Baron ought to be perfectly familiar, ful to the last, affectionately to be remembered, and

disease for several years, dying in harness, useand we dare say he is right, although the proceed- long to be regretted. ing does seem peculiar.

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But it does not seem nearly so peculiar to the

NOTES OF CASES. English press as the conduct of Justice Manisty in setting aside the verdict of the jury in the Adams

N Piolett v. Simmons, Pennsylvania Supreme Court, Coleridge libel suit. We have no business with nor disposition to intrude upon the domestic phases of Sunday, driving along the public road, his horse this affair. But we may say that if Mr. Adams did not

became frightened at a barrel and truck lying along want to marry Miss Coleridge he can hardly allege

the side of the road, which had been used by dethe efforts of the defendant to break off the match fendants for whitewashing their fence; the horse as injurious to him. We do not understand that reared, plunged a few steps forward, fell to the he avers any other damage. Indeed, if he suffered ground, and instantly died. In falling he upset the any, it must have been through his own unnecessary

carriage, which fell upon the plaintiff and caused promulgation of a private letter from the defendant the injuries for which he brought this suit. Held, to Miss Coleridge, put into his hands by the re- that unless there was something unusual or extraceiver. Technically however the writing of the let- ordinary in the structure and appearance of the ter was a libel, unless justified by its truth or its whitewashing apparatus, which would naturally confidential character, and the latter could not save

tend to frighten horses of ordinary gentleness and it if the motive was malicious; and the question of training, it was not negligence to use it, and its the motive was for the jury, and was properly left to

reasonable use for no longer time than was fairly rethem. Why then was their verdict, finding malicequired along the highway in whitewashing defendand assessing damages, set aside? We cannot as

ants' fences would not subject the defendant to yet understand how the justice's action can be jus- liability, even though some horses might take fright tified, unless on the ground of excess of damages.

at seeing it. The court cited Mallory v. Griffey, The damages certainly were grossly excessive. To 4 Norris, 275; Morse v. Richmond, 41 Vt. 435; compel a brother to pay $15,000 for writing a pri- Foshay v. Glen Haven, 25 Wis. 288; s. C., 3 Am. vate letter to his sister, about her supposed suitor, Rep. 73; Ayer v. Norwich, 39 Conn. 376; Card v. when he was not her suitor, and it did not hurt City of Ellsworth, 65 Me. 547; S. C., 20 Am. Rep. him, seems to us to show something like malice in 722; Bartlett v. Hooksett, 48 N. H. 18; Young v. New the jury. We think it would be hard to maintain Haven, 39 Conn. 435; Dimock v. Suffield, 30 id. such a verdict on this side of the Atlantic, although 129; Com. v. Passmore, 1 5. & R. 219; City of Allethe rule is very liberal. Indeed, a verdict of such gheny v. Zimmerman, 14 Norris, 287; and observed: an amount in any case must have been a very rare “It seems to us it would be difficult to state a raoccurrence among us. But as lawyers we are curi

tional rule on this subject, unless it is accompanied ous to know why the justice set the verdict aside. with this limitation. For if persons are bound to Perhaps our new London correspondent can tell us guard against frightening skittish, vicious, timid in his next letter, Our Londou exchanges are

and easily frightened horses, it will not be possible silent on the case.

to state any limit of precaution which will be a pro

tection against liability. The reason is that there The death of Henry Smith has deprived the is nothing as to which it can be definitely said that Albany bar of one of its recognized leaders, and the such horses will not frighten. On this subject the State of one of the greatest jury lawyers of the day. language of our brother Paxson, in the recent case Mr. Smith was not a learned lawyer, although he of the Pittsburgh Southern Railway Co. v. Taylor, 41 was always master of the law essential to his case.

Leg. Int. 84, is particularly apposite. He said: But for native strength and ingenuity, for breadth “The frightening of a horse is a thing that cannot and grasp of comprehension, for knowledge of be anticipated, and is governed by no known rules

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In many instances a spirited road horse will pass in probably it must be, that the city had no legal right safety an obstruction that a quiet farm horse will to grant the license to store or keep the wagon in scare at; a leaf, a piece of paper, a lady's shawl flut- the street, still its liability for the particular injury tering in the wind, a stone or a stump by the way which caused the death of Cohen cannot, we think, side, will sometimes alarm even a quiet horse. I be sustained upon proof of the mere fact of grantmay mention, by way of illustration, that the sever- ing the license. That fact was not the immediate est fright I ever knew a horse to feel was caused by cause of the injury which resulted from the neglithe sunlight shining in through the windows of a gent driving of the defendant Muller and the inbridge upon the floor.' If a farmer may not have a sufficient manner in which the defendant Marks had barrel of cider, a bag of potatoes, a horse power, a tied up the thills of his wagon. If the thills had wheelbarrow or a wagon standing on his own prem- been securely and properly fastened up, as they ought ises by the side of a highway, except at the risk of to have been, the fastenings would not have been having his whole estate swept away in an action for broken by the blow which turned the wagon partidamages occasioned by the fright of an unruly horse, ally around and threw down the thills with such the vocation of agriculture will become perilous in- violence as to occasion the fatal injuries. To make deed.

As we understand the law, there the city responsible for the injury, some evidence is an absolute right in a property owner to use a tending to show knowledge on its part or notice in portion of the public highway for certain purposes some form of the insecure or careless mode in which for a temporary period, and in a reasonable manner, the wagon was stored in the street must be shown. and this right may be exercised in derogation of the

The license did not authorize the negligence right of the traveling public. The substance of the which caused the death,

It was at most a doctrine is, that the mere exercise of the right of remote but not immediate cause of the obstruction for a lawful purpose imposes no liability injury; and it cannot be held as matter of law to pay for damages resulting therefrom. It must that the license authorized any such negligence be an unreasonable or negligent exercise of the right as it is clearly apparent the defendant Marks was in order to impose liability. To say that a man way guilty of in his mode of using the privilege lawfully deposit brick and lumber on the highway, sought to be conferred by the license. If notice or in front of a lot on wbich he is erecting a building knowledge of the improper mode of tying up the with these materials, and yet if their presence has a thills had been brought home to the public authortendency to frighten horses, and some over-sensitive ities the case would fall within the principle of horse does take fright at them, and run away and

Hume v. Mayor, 74 N. Y. 273; and Hume v. cause damage, the person depositing the materials Mayor, 47 id. 639. The court at the trial held in is guilty of negligence, and shall pay the damage, substance that the city had no power to license the is merely giving a right with one breath and taking use of the street for the storage, and that by illeit all away with another. In practical effect such a gally authorizing it, the city contributed to the creright would be no right at all. Any pile of bricks, ation of & public nuisance, and was therefore stones, sand, lumber, or other building material in jointly liable with the other defendants for the in& street, has a tendency to frighten horses, and in jury without regard to the question whether the almost any community there could always be found direct cause of injury was or was not some special somc horses that would actually take fright at see- negligence of the licensee to which the city made ing them. But that circumstance alone will not no direct contribution, and of which it had no take away the right to deposit them in such a place. notice or knowledge. This we think was going beThere must be some abuse of the right, some un

yond the established principles governing such usual and extraordinary mode of arranging the

cases, for it would follow from such a rule that material such as will probably produce fright with every mistaken excess of power authorizing the use ordinarily gentle and well trained horses before it or occupany of a public street would charge the city can be fairly said liability arises.” See Macomber with liability for any and every act of negligence v. Nichols, 34 Mich. 212; S. C., 22 Am. Rep. 522, every person using the street might be guilty of. and note, 528.

We think the true rule in such cases is that where

the injury clearly results from the negligent mode In Cohen v. Mayor, etc., 33 Hun, 404, the city of in which the licensee exercises the privilege granted New York granted to M. a license to store his busi- to him, which mode is not part of the license or ness wagon, when not in use, in the street in front grant, there must be some proof of negligence showof his grocery store. M. kept the wagon near the ing permission to use or acquiescence in the use of curb with the thills turned up and fastened with a

the mode after notice or knowledge on the part of string. A passing wagon struck the hind wheel of the licensor. Brady, J., dissented. Marks'

wagon, threw it around toward the sidewalk and broke the string which held up the thills, A singular point of evidence arose in Morris v. thereby allowing them to fall down upon and kill State, 95 Ind. 73. To an indictment for sending a the plaintiff's intestate who was passing upon the threatening letter to extort money the defense was sidewalk. Held, that the city was not liable. The

that it was a joke. The parties were intimate court, by Davis, P. J., said: “If it be conceded, as friends, and their was evidence tending to prove


the defense and establish the defendant's good char- out. The question of intent, in a criminal prosecu. acter. Held, that evidence that the receiver shortly tion, is one of fact and often difficult to ascertain. before had played severe jokes upon the defendant The writing and sending of the letter set out in the was erroneously excluded. The court, by Ham- indictment might, prima facie, import an intent to mond, J., said: “At the trial the appellant pro- blackmail. Yet the circumstances under which it posed to testify in his own behalf that a short time was written, and the previous relations of the parbefore sending the letter to Hart several 'rough ties, might be considered by the jury, either for the jokes,' as they are termed, the character of which purpose of strengthening or rebutting the presumpare set out in the bill of exceptions, were perpe- tion of crime. The evidence offered by the appeltrated on him by Hart and Deter. The evidence lant, and excluded by the court, would have tended on the objection of the State was excluded. In this to show that the letter was not sent with the intent there was error.

The fact of Hart and Deter play- to extort money." ing 'rough jokes' on the appellant would not of course justify or excuse the writing of a letter with intent to extort money. But as bearing upon the COMPENSATION OF HUSBAND WHO ACTS question of such intent, it was proper for the jury

AS WIFE'S AGENT. to know the previous relations of the parties whether their intimacy and conduct toward each N the case of Kingman v. Frank, the Supreme other had been such as to make it reasonable that Court of New York decided on Oct. 6, 1884, the transaction, upon which the indictment was that where a married woman having a separate esbased, was intended as nothing more than a jest. tate or business, employs her husband to manage The gist of the offense charged in the indictment the same, and agrees to pay him a stated compenwas the sending of the letter to Hart with intent to sation for his services, a chose in action in his favor extort money from him. Unless such intent existed against her is created, which on her failure to pay in the mind of the appellant at the time of sending can be reached by a judgment creditor of the husthe letter there could be no crime. If the letter was band; and this case suggests the subject of the hussent merely in sport to give annoyance, but with no band's compensation generally when he acts as his intent to extort money, however reprehensible the wife's agent. act may have been, it would not constitute the of- 1. General Rule.- A husband may, as his wife's fense of blackmailing. The jury should have had agent, manage her separate property or separate busithe benefit of all evidence bearing upon the ques- ness (1) with or without compensation; (2) but tion of intent. Some of the 'rough jokes' which the neither he nor any creditor of his has in the absence appellant proposed to prove had been played upon of special agreement any right in the property manhim by Hart and Deter were quite as culpable as aged, earned or accumulated through his agency.(3) the sending of the letter complained of, if the send - Partnerships between husband and wife are not ining of it was by way of joke and without intent to cluded within this discussion.(4) extort money. The evidence offered, but excluded

2. Express Contruct.-Contracts between husband by the court, would have given strength and prob- and wife are in most States void, (5) and therefore ability to the defense relied upon by the appellant. there is usually no express contract by a wife to pay It is true that in criminal cases evidence of collat- her husband for his services.(6) In cases when such eral matters is usually inadmissible. An exception contract can (7) and does exist, she may even be made to the rule exists however where such collateral his garnishee ;(8) but in the absence of such contract matters bear upon the question of intent. Whart. neither he nor any creditor of his has any right Crim. Ev., $ 46; Best Ev. 264; 1 Greenl. Ev., § 54. against her or her property.(9) To constitute a crime an evil intent must combine

3. Implied Contract. There is no implied conwith an act. 1 Bish. Crim. L., $204, 285 et seq. In tract that a wife will pay her husband for his sersection 287, the learned author says: "The doctrine vices.(10) His first duty is to support her and his which requires an evil intent lies at the foundation of public justice. There is only one criterion by

(1) Schouler Husband and Wife, $S 277–282. which the guilt of men is to be tested. It is whether

(2) See Lewis v. Johns, 24 Cal. 98, 103; Gage v. Dauchy,

34 N. Y. 293, 299; Rush v. Vought, 55 Penn. St. 437, 445; the mind is criminal. Criminal law relates only to

Webster v. Hildreth, 33 Vt. 457, 458. crime. And neither in philosophical speculation, (3) See fullest discusion, Miller v. Peck, 18 W.V8, 75, 79nor in religious or moral sentiment, would any peo- 97. ple in any age allow that a man should be deemed (4) Except as below. guilty unless his mind was so. It is therefore a prin- (5) Scarborough v. Watkins, 9 B. Mon, 540, 545. ciple of our legal system, as probably it is of every (6) Gage v. Dauchy, 34 N. Y. 293, 297, 299; Abbey v. Dero, other, that the essence of an offense is the wrongful 44 Barb. 874, 880. intent, without which it cannot exist.' In the ab

(7) See 29 Albany Law Journal, 285. sence of a felonious intent to extort money from

(8) Lewis v. Johns, 24 Cal. 98, 103; Keller v. Mayer, 65 Hart at the time of sending the letter, the appellant, 1884, 26 D. 'Reg. 937; Miller v. Peck, 18 W.Va. 75, 100.

Ga. 406, 410; Kingman v. Franks, N. Y. Sup. Ct. Oct. could not be guilty. If, without such intent, the

(9) McIntyre v. Knowlton, 6 Allen, 565, 567; Webster v. letter was sent only for the mischievous purpose of Hildreth, 33 Vt. 457, 458 ; infra n, 19. annoyance, the crime charged would not be made

(10) Lewis v. Johns, 24 Cal. 98, 103.

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