NOTES OF CASES. N Badenach v. Slater, the Supreme Court of I add hold that an explicit power to sell on they lay down, to the effect that a debtor might: with equal justice prescribe any period of credit. which to him should seem fit, as that which the trustee should give upon sales of property assigned to him, as assume to vest in him a discretion to sell upon credit if such a mode of selling should seem reasonable and proper and in the best interests of the creditors. With the utmost respect for the high authority of the Court of Appeals for the State of New York, this seems to me to be equivalent to say credit in an assignment for creditors does not avoid it. 7 Can. Leg. News, 392. Strong, J., observed: "I cannot agree that a clause which invests such a trustee with a discretionary power, which so far from being necessarily prejudicial to the general body of creditors is actually essential to their protection, renders the assignment invalid merely being that to express an intent of vesting in the trus cause it 'hinders and delays' them. It is to be presumed that the trustee will do his duty; in other words, that he will execute the trust in the interest of the creditors exclusively, and that he will not sell on credit unless it is for their benefit that he should do so. If he fails in his duty or proposes to act in contravention, his conduct can be controlled by a Court of Equity, who can also supersede him in the office of trustee. Supposing there are but a small body of creditors, and that the assignment is made to them directly without the intervention of any trustee, the property being admittedly less in value than the debts, there should be no reservation of an ulterior trust for the assignor, could it be said that such a clause as this conferring on them a power to do what they like with their own was void? Then what difference does it make that a trustee is interposed, and resulting trust de clared for the debtor? To the amount of the debts the goods are still the property of the creditors, who through their trustees have the control and management of them for their own behoof. Then to say that the trustee may or may not in his discretion sell on credit, is but to say that he shall dispose of the property in the way most advantageous for the whole body of creditors." Gwynne, J., said: "To hold that this clause in the deed operates so as to compel the court to hold, as an incontrovertible conclusion of law, that the deed was not made and executed as in its terms it professed to be, for the purpose of paying and satisfying ratably and proportionately all the creditors of the debtors their just debts, but was made and executed with intent to defeat and delay such creditors, appears to me to involve a manifest perversion of the plain language of the deed, and such a construction of the clause in question is not warranted by any decision in the English courts or in those of the Province of Ontario, from which this appeal comes, and there is in my judgment nothing in it which so recommends it as to justify us in making a precedent by its adoption. * * I have however carefully perused the judgments in the case of Nicholson v. Leavitt, so much relied upon by the counsel for the appellant, as it was decided by the Court of Appeals for the State of New York, as reported in 6 N. Y. 10, and also the same case as decided in the Superior Court of the State, and reported in 4 Sandf. 254. The Court of Appeals, when reversing the judgment of the Superior Court, seem to me to rest their judgment in a great degree upon a proposition which * tee authority and permission to exercise his best judgment by selling on credit, if such mode of disposing of the property should seem to be in the in terest of the creditors whose trustee he is made, and to express an intent of divesting such trustee of all such authority, and to prescribe to him a rigid, | unalterable course, which in the discharge of his trust he must pursue against the dictates of his own judgment, and against the will of the creditors whose trustee he is made, are one and the same thing. There are other parts of the reasoning upon which this judgment is rested which seem to me to lead to the conclusion, that delaying a creditor in obtaining satisfaction of his debt by the particular process of execution in a suit at law is equally a defeating and delaying of him within the prohibition of the statute as the vesting the trustee with authority in his discretion to sell upon credit, if such would be a reasonable and proper course to pursue in the interest of the creditors, and that the former is not within the prohibition of the statute is established in our courts beyond all controversy." We cannot say that we are glad to see that Roderigas v. East River Savings Institution has at last found one friend. In Plume v. Howard Savings Institution, 17 Vroom, 217, it was held that a decree of the Orphans' Court, granting letters of administration, founded on a petition and proofs, presenting a colorable case of the decease of the alleged intestate, and as to his residence, cannot be called in question in a collateral proceeding. Beasley, C. J., said, obiter: "With respect to the authorities cited in the briefs of counsel, it is sufficient to say that they are conflicting, and that none of them ap pear to be strictly in point. In most, if not all of such cases, it was affirmatively shown that the alleged decedent was actually alive at the time of the issuance of letters of administration, while in the present case there is no reason for even surmising such to have been the fact. In almost all the instances cited in which the fact of the death of the alleged intestate was allowed to be shown in order to overthrow the administration, the tribunal granting it was held to be a court of limited and special jurisdiction. On the other hand, an authority to administer, granted even by such a court, was declared to be invulnerable to all collateral attacks, in the carefully considered case of Roderigas v. East River Savings Institution, 63 N. Y. 464; S. C., 20 Am. Rep. 555. The point decided was that a pay f hent by a debtor to an administrator duly appointed vas valid, and a bar to a second action, although he supposed intestate was alive at the time, and the etters of administration were subsequently revoked or that reason. As we are dealing in the present ase with the decree of a court of general jurisdicion, it is not necessary to affirm the doctrine of this eported case, though in passing it may not be out f place to remark that its reasoning, notwithstandng the adverse criticism to which it has been subected, appears to be of great weight. That a conlusive efficacy should be given to letters of adminstration by whatever tribunal issued, so far as nerely collateral impeachment is concerned, is a lain dictate of sound public policy, for few things an be more oppressive than to require the debtors of a person, who chooses so to absent himself as to give rise to a judicial conclusion that he is dead, to bear the burden of paying the debts they owe to uch absentee, to his representative duly appointed ccording to legal forms, and at the same time to Issume the risk of such payment being afterward declared to be invalid, on the ground that such abentee was still alive. The doctrine of the nullity of such grants of administration would also be atended by the further disastrous result of rendering he surrogate or other court of limited jurisdiction iable to be treated as wrong-doers for everything hat should be done by virtue of such letters, and vhich might prove detrimental to the interests of the Derson supposed to be dead. But this question is hot now before the court; for all that we are now called upon to declare is the doctrine already stated, that this decree of the Orphans' Court is not conestable in this collateral way." All the chief jusices in the United States could not make us believe hat a court can confiscate a live man's estate by lecreeing that he is dead. The contrary has very recently been held in Thomas v. People, 107 Ill. 517; 3. C., 47 Am. Rep. 958; and Devlin v. Commonwealth, 101 Penn. St. 273; S. C., 47 Am. Rep. 710. The Roderigas case stands solitary in its absurdity. Two cases interesting to college students are decided in Maine. In Strout v. Packard, 76 Me. 148, it was held that in an action against several individuals for a joint assault, evidence of misconduct on the part of some of the defendants before and after the assault, tending to show a combination among them, should be limited in its application to those defendants against whom such acts of prior or subsequent misconduct are proved; it is not evidence against the other defendants. This was an action for hazing a freshman. The court said: "The declaration alleged a joint assault. The averment of a conspiracy was of no account except that under it it might be proved in any legal way that the hand which threw the coal carried into execution the purpose of the seven. Evidence of prior or subsequent combination or conspiracy alleged. The fact that a conspiracy exists, or the extent to which it goes, is not to be proved as against A., by the declarations or the acts of B., with which no connection on the part of A. is shown, and which do not appear to have been made or done in furtherance of a common design entertained by both. That a joint purpose of the seven was carried into effect by throwing the coal in this instance, was not to be proved by showing previous acts of combination and torts committed in pursuance thereof by three or four only. Precisely the limitation which the request contained was required in the legal statement of the case; that the testimony to misconduct on the part of some of the defendants before and after this assault, tending to show a combination among them, and offered and received only as evidence of the intention and purpose for which the seven defendants were out together that night, and what kind of acts and invasions of the Freshmen in their rooms were to be expected when parties were out on such an expedition, and so to indicate what kind of a concert of action subsisted between the defendants on the night when the plaintiff was hurt,' should have been limited in its application to those defendants against whom such acts of prior or subsequent misconduct were proved. The evidence was offered only for the purpose of proving the presence and the scope of a joint intent in the single act, whether there was on this occasion a common purpose among the several defendants and whether it extended to the throwing of such a missile under such circumstances. The previous act of one was not evidence to prove this against another, who did not participate in that act. The mind of one is not to be revealed by the act of another, till some relation between the two is shown in the doing of that act. * * ** The existence of a conspiracy, as we understand it, is not in the first instance to be proved against one by the mere act or declaration of another, but beyond that, if the existence of the conspiracy were fully proved as to some of the defendants, that fact had no tendency to decide adversely to the other defendants the vital question whether they took part in that conspiracy, and in such a way, to such an extent, as to make them joint trespassers in this transaction." In Sanders v. Getchell, 76 Me. 158, it was held that although the Constitution of the State provides that the residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town where such seminary is situated, this does not prevent a student gaining a voting resi dence in such place if other necessary conditions exist; he does not acquire a residence because a student, but may acquire one notwithstanding that fact. The court said: "It is clear enough that residing in a place merely as a student does not confer the franchise. Still a student may obtain a votmisconduct on the part of some of the defendantsing residence, if other conditions exist sufficient to was only admissible for the purpose of proving, as among them, the existence and character of the create it. Bodily presence in a place coupled with an intention to make such place a home will estab 36 Am. Rep. 216; Fry's Election case, 71 Penn. St.' 302; S. C., 10 Am. Rep. 698." OLD CASES REVIVED. MISS STOUT. ASSING over for the present the period of the Passt Ave sten fts, so rich in important and pictu Had i resque political trials, we find our attention arrested 1 i lish a domicil or residence. But the intention to remain only so long as a student, or only because a student, is not sufficient. The intention must be, not to make the place a home temporarily, not a mere student's home, a home while a student, but to make an actual, real, permanent home there; such a real and permanent home there as he might have THE TRUE STORY OF OPHELIA, OR THE DEATH OF elsewhere. The intention must not be conditioned upon or limited to the duration of the academical course. To constitute a permanent residence, the intention must be to remain for an indefinite period, regardless of the length of time the student expects to remain at the college. He gets no residence because a student, but being a student does not prevent his getting a residence otherwise. The presumption is against a student's right to vote, if he comes to college from out of town. Calling it his residence, does not make it so. He may have no At the close of the seventeenth century there right to so regard it. Believing the place to be his dwelt in the little town of Hertford a young! home is not enough. There may be no foundation Quaker gentlewoman named Mistress Sarah Stout. for the belief. Swearing that it is his home must Her means were good, her father, who had amassed not be regarded as sufficient, if the facts are averse considerable wealth, having made her his sole execto it. Deception or misconstruction should not be utrix, and given her the greater part of his perencouraged. The constitutional provision should sonal estate. She lived with her mother, and be respected. Each case must depend largely upon passed, to all outward appearance, a quiet, happy, its particular facts. The question is not always of retired life. But beneath this veil of humdrum easy solution. One difficulty is this, that all the monotony a constant struggle was going on bevisible facts may be apparently consistent with either tween the strict principles of the sect in which she theory, that of a temporary or a permanent home. had been brought up, and which she lacked suffiThe Massachusetts court, in a discussion of the ques- cient strength of mind to break away from, and tion (5 Met. 589), presents such descriptions of fact those impulses toward innocent pleasure and freeas might be of a controlling weight upon the two dom, natural to a young, well educated girl. The sides of the question, very clearly, in the following few letters written by her which have come down remarks: If the student has a father living; if he to us are couched in the easy, graceful style of a still remains a member of his father's family; if he refined woman, and we can judge of the repugreturns to pass his vacations; if he is maintained nance with which she received the tirades of a cerand supported by his father; these are strong cir- tain "Theophilus, a watchman," who on one occacumstances repelling the presumption of a change sion at least preached in her mother's house, and of domicil. So if he have no father living; if he before an audience of some twenty or thirty people have a dwelling house of his own; or real estate of pointedly addressed himself to her backslidings, which he retains the occupation; if he have a mother telling her that "her mother's falling outwardly in or other connections, with whom he has been before the flesh should be a warning to her that she should accustomed to reside, and to whose family he re- not fall outwardly." From such "canting stuff," turns in vacations; if he describes himself of such as she termed it, she turned with pleasure to the place, and otherwise manifests his intent to continue only congenial society that seems to have been his domicil there; these are all circumstances to opened to her, that of the Cowpers, a neighboring prove that his domicil is not changed. But if hav-county family. Sir William Cowper and his eldest ing a father or mother, they should remove to the town where the college is situated, and he should still remain a member of the family of the parent; or if having no parent, or being separated from his father's family, not being maintained or supported by him; or if he has a family of his own, and removes with them to such town; or by purchase or lease takes up his permanent abode there, without intending to return to his former domicil; if he depend on his own property, income or industry for support; these are circumstances, more or less conclusive, to show a change of domicil, and the acquisition of a domicil in the town where the college is situated.' The cases generally are of the same tenor. Vanderpal v. O'Hanlon, 53 Iowa, 246; S. C., son were members for the borough, which was far quently pressed by Miss Stout to stay at her moth1 er's house when the assizes brought him to Hertford, but he preferred sharing the lodgings of his t brother. On one occasion however, that of the spring AsC sizes, 1699, the elder Cowper was detained in town, and Spencer, with the natural desire of a young i barrister to save himself needless expense, accepted 'her invitation. Arrived at Hertford he found that his usual lodgings had been kept for him, so that I there was nothing to be done but to take them. 'He dined with the Stouts, explained to them the unavoidable disappointment, and returned to their house in the evening for the purpose of paying the young lady some interest upon an investment he ' had made for her. As the evening passed on the mother left the room. About eleven Miss Stout or'dered her maid to warm Mr. Cowper's bed, to which he made no objection, and the servant ac'cordingly went upstairs. In a quarter of an hour's time she heard the front door slam, and after an ⚫ uncertain interval spent in dawdling after the manner of maidservants, she came down to find the parlor empty. Neither Miss Stout nor Mr. Cowper I returned, but the mother seems to have felt no great uneasiness, and like a thundershock came the news in the morning that her daughter's body had been found floating in the mill-pond. On the same day a hurried inquest was held, and an open verdict returned. Cowper, without again visiting the mother's house, left the town with the rest of the bar, and at first the whole matter seemed likely to blow over. But as we all know, tongues in a country town will wag, and it was not long before scandalous stories got afloat affecting the poor girl's reputation. Mrs. Stout too had her dormant suspicions roused, when on examination of her husband's affairs, she found the estate deficient by £1,000 of the figure at which she had estimated it. The Quakers loudly protested that it was an impossibility that one possessed of "the inner light," although a backslider, should commit suicide, and the conjoint influence of all these causes led to an exhumation of the body on April 28th, at which six medical men were present. Five of these unhesitatingly agreed that the deceased was not drowned, but was dead before being thrown into the water, and as the dissentient happened to be Sir William Cowper's family surgeon, his refusal to join in his colleagues' opinion only increased the burden of suspicion. At this point another circumstance came to light. It appeared that on the very night of Miss Stout's death three strangers took lodgings in the town, and were overheard talking of the young lady, one of them saying that she had thrown him over, but a friend of his would be even with her by this time. These men were seen in Cowper's company next day, and it further came out that they had spent the whole of the previous afternoon in the town, although they only went to their lodgings little before midnight, and one of them was then heated with exertion and covered with dirt. These mysterious visitors were traced, and turned out to be Marson and Stephens, two London attorneys, and one Rogers, a scrivener. And now the whole town was aflame with an excitement which rapidly spread throughout the kingdom, and to which the political passions, so violent at that epoch, added fuel. The Cowper family stood in the front rank of Whiggism, and were consequently, in the opinions of their Tory and Jacobite opponents, capable of any crime. An unfortunate liaison in which William Cowper was involved extended its prejudicial effect to his brother,. and we may remark in passing, subsequently gave Voltaire occasion to assert in his "Philosophical Dictionary" that the chancellor of England both practiced and defended polygamy! From every side arose an outcry for inquiry, and Spencer Cowper, Marson, Stephens and Rogers were arrested, examined before Holt, C. J., and committed for trial. Finally on July 16th they were duly arraigned for murder at the Hertford assizes before Baron Hatsell. Jones for the prosecution opened his case more strongly than his subsequent proofs warranted. The unexplained movements of Cowper, the position of the body when found, the unhesitating statements of the medical witnesses, and the strange actions of the three lesser prisoners however made a heavy case of suspicion, and it is evident that at the commencement of the case the judge was prejudiced against the defense. An initial point of some interest was raised. The prosecution having challenged certain jurors, Cowper called upon them to show legal cause for their challenges. Jones contended that he had the same right of peremptory challenge as the prisoners, but Cowper quoted Hale's Pleas of the Crown, page 259, and a statute of 33 Edward I, where it is expressly enacted that the king shall not challenge without cause, and the judge held with him that the prosecution had no right of peremptory challenge. Cowper however waived the point, and the jury being sworn, the first witness called was the deceased's maidservant, Sarah Walker. The material part of her evidence has already been given. In cross-examination Cowper elicited the fact that she had on two previous occasions bought poison for her mistress, but she cleared this up by showing that it had been used to poison an unruly dog. Next came the witnesses as to the finding of the body. Of these there were no less than ten who all agreed that the corpse was floating in water some five feet deep, portions of the dress being above the surface, and the whole body being only just submerged. The head and right arm were entangled in the stakes of the mill-dam, and there were various bruises around the neck, but only such as might easily have been produced by friction against the wood. No water was in the body, and only a little froth oozed from the nostrils. After some minor and irrelevant testimony, five of the doctors who had assisted at the exhumation - pointing out that the whole case amounted merely to suspicion, then dealing with the medical evidence, giving a full account of his own actions on the night in question, and attributing the prosecution to the combined malice of the Quakers and of his family's political opponents. He referred to certain letters of the deceased, which he should produce and which would afford a key to the whole mystery, protesting however that if he stood there singly in the case of his own life he would not do so, but the consideration of the three innocent men arraigned with him compelled him to adopt this course. Closing in a somewhat rhetorical strain, he was told by the judge "not to flourish too much." The first batch of his witnesses were the constable and other parish officials present at the taking of the body out of the water, but their testimony substantially agreed with that already given for the crown. Next came the doctors for the defense, nine London physicians and the distinguished anatomist William Cowper, who though bearing the same name was no relation to the prisoner. This gentleman gave a full expression of the whole process of drowning, pointing out the important distinction between those voluntarily and involuntarily drowned. The latter class, in their struggle for life, will invariably swallow a considerable amount of water, but the suicide, keeping his breath for a speedy suffocation, may, with sufficient resolution, attain his end without swallowing any water whatever. As to the sinking of bodies, he detailed various experiments he had made with dogs, with a view to the trial, resulting in the conclusion that dead bodies necessarily sink if there be no distention to bring them up, but that distention may happen either before or after death so that no inference can be drawn from the fact of a body floating or sinking. The reason of fastening weights to those deceased at sea he ex Pat upon the quotation of Vulgar Errors, Edward Clement, an old sailor, stepped into the box and varied the proceedings by a narration of his experiences in the battle off Beachy Head when he saw several thrown overboard during the engagement, particularly one that was his friend and killed by his side, the sum of the whole being that all that were so killed and thrown overboard floated. He also instanced the well known practice of tying shot to the feet of those who are buried at sea. For the reverse fact, he quoted the shipwreck of the Coro-plained to be not so much to sink them, as to prenation, and at the risk of a little irrelevancy we will let the old salt tell his own tale. "Have you seen a shipwreck? A. Yes, the Coronation in 1691. I was then belonging to the Duchess, under the command of Captain Clement. We looked out and see them taking down their masts; we saw the men walking up and down on the right side and the ship sink down and they swam up and down like a shoal of fish one after another; and I see them hover one upon another and see them drop away by scores at a time; and there was an account of about nineteen that saved themselves, some by boats and others by swimming; but there was no more saved out of the ship's complement which was between five hundred and six hundred, and the rest I saw sinking downright, some twenty at a time.' Clement was succeeded by another tar, one Richard Gin (most appropriate name for a grog-loving mariner), and ultimately the prosecution proceeded to the case against the other three prisoners, the substance of which has already been stated. Here the prosecution rested. Cowper opened his defense at some length, first vent their rising afterward, Another witness, Dr. Crell, being interrupted by the judge whilst referring to some ancient authors, retorted that he saw no reason why he should not quote the fathers of his profession in the case "as well as you gentlemen of the long robe quote Coke or Littleton in others;" a remark which shows that even so late as the close of the seventeenth century the medical profession looked rather to books than experiment for their knowledge, and had the same odd custom of valuing authorities by age, which still prevails amongst "the gentlemen of the long robe." The defense then called witnesses to prove deceased's melancholy state of mind, and in this they had great success, more than one person proving that she had expressed an intention of drowning herself and had confessed that she was in love with one she could not marry. This point Cowper! clenched home, producing the promised letters, in which her unfortunate passion for himself was only too clearly expressed, her last letter, written four days before her death, containing the words “I |