upon a proceeding to collect a tax levied by persons assuming to be and acting as school directors of the district, the tax was sustained; it being held that the school directors were officers de facto by color of an election, and that their acts, when they concerned the public and third persons, were as valid as though they were officers de jure: that in such a collateral proceeding the legality of the formation of the schooldistrict could not be inquired into; and that it could only be done by information in the nature of a quo warranto.

If the local law providing for the election of five members of the board of supervisors of Wayne county be unconstitutional, then the general law remained in force. Under the general law, the town supervisors were members of the board of supervisors by virtue of their office as town supervisors, and under the general law they held their offices until others were elected or appointed in their places and qualified. The case then would be that there were two elected sets of members of the board of supervisors of Wayne county, one of fifteen members, elected under the general law; the other of five members, elected under the local law. There was all the while the legally established office or official body of the board of supervisors of Wayne county. And so far as respects the present question, there would not seem to be any substantial distinction between this case and that of People v. Bangs, where there were two elected judges,- the one, who was rightfully elected, and the one elected under the unconstitutional law; and it was held that the acts of the latter were valid as those of a de facto officer. And the same as to the other cases cited, and referred to as above mentioned, where there were two officers in respect of the same office, one lawfully elected, the other appointed or elected under an unconstitutional law; and it was held that the latter was a de facto officer, and his acts were valid.

It is said that the general law requires a majority of the members to constitute a quorum for the transaction of business, which in Wayne county, under that law, would be eight, and that five members under the local law would not be a sufficient number to form a quorum for the transaction of business. But the question in hand is whether the members elected under the local law are to be regarded as de facto officers. If so, then the board which they constituted would be a de facto board, and a majority of its members would constitute a de facto quorum. After the passage of this local law the town supervisors of Wayne county, who by virtue of their office were members of the board of supervisors, declined all action as such members, and yielded to the persons elected as members under the local law as the rightful board of supervisors of Wayne county. The latter, under their election in pursuance of the act of the general assembly, entered upon the duties of their office, and went on and exercised the powers and duties of the board of supervisors of Wayne county for years, without question of their right to do so. They had the sole management and transaction of the affairs of tho county, and did all the official legislative business of the county which there was done. There was no other official body ready and willing to do it. They were recognized and acquiesced in by all the public as the board of supervisors of Wayne county; end to hold their acts to be invalid would be most disastrous to the public interest, and that of individuals who were justified in relying upon such acts as those of the board of supervisors of the county.

There are present here all the elements which, from considerations of public policy, and for the avoiding of public inconvenience, have been recognized as going to make up the character of de facto officers whose acts

should be held valid as officers by virtue of an election as such under an act of the Legislature, ― reputation of being public officers, and public belief of their being such; public recognition thereof, and public acquiescence therein; and action as such unquestioned during a series of years, with no other body ready and willing to act as the board of supervisors. We are therefore of opinion that this act of February 28, 1867, in relation to the board of supervisors of Wayne county, even if it be unconstitutional, was sufficient to give color of title; that the official board elected and acting under the law were officers de facto, and that their acts should be held valid so far as the public and third persons are concerned.

The judgment will be affirmed.

Magruder and Scholfield, JJ., dissenting.

IMPEACHMENT. -(1) Where the insanity of one on trial for a criminal offense is a question of the preponderance of evidence, the appellate court cannot interfere with the finding of the jury on this point. (2) In a case of murder in the first degree, the finding of the jury on the question of the absence of deliberation and premeditation, where there is sufficient evidence of the presence of these elements for the consideration of the jury, is conclusive on the appellate court. (3) Code Civil Proc. N. Y., § 834, prescribes: "A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he ac quired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." S. was on trial for murder, and his only defense was insanity. Dr. B. had, for several months preceding the trial, been jail physician, and while he had looked after all the jail prisoners in a general way, and examined and kept the accused under his observation, he had never prescribed for nor professionally attended him. He was called as a witness for the State. Held no error; nor in contravention of Code Civil Proc., 834, to permit him to answer an hypothetical question as to defendant's sanity, from which question was excluded all knowledge which witness had of the defendant personally, and which was based entirely upon facts occurring before defendant came to the jail. (4) Such witness was not rendered incompetent because he stated that it was questionable whether, in answering the hypothetical question, he could exclude from his mind the knowledge he had obtained from the defendant in seeing him in the jail; it nowhere appearing that he had any knowledge obtained while attending defendant professionally, or that he had received any information necessary to enable him to attend as a physician, or ever prescribed for defendant, or that witness in answering took into consideration any improper elements. (5) On a murder trial, defendant's wife, testifying in her husband's behalf, stated, in substance, that on the night before the murder, defendant came home early and went to bed sick. On cross-examination she denied having made statements, in certain conversation with the district-attorney before the trial, to the effect that defendant was well on said night. Held, that it was not error to permit witnesses for the State present at the interviews to testify, for the purpose of contradicting and discrediting her testimony in this particular, that she did make the statement claimed by the district attorney. July 1, 1887. People v. Schuyler. Opinion Per Curiam ; Rapallo and Andrews, JJ., dissenting.

ADULTERATION-SALE OF MILK-INTENT-NEW

TRIAL -INSTRUCTION - MATERIALITY. — (1) Upon a trial for the offense of selling adulterated milk, contrary to chap. 183, Laws N. Y. 1885, as amended by chap. 458, Laws N. Y. 1885, the fact of the sale of milk below the statutory standard being established, an absence of criminal intent on the part of the accused is immaterial. People v. Cipperly, 101 N. Y. 634. (2) An incorrect construction of a statute by the court in its charge relating to a state of facts not in the case is immaterial. July 1, 1887. People v. Kibler. Opinion by Finch, J.

GUARDIAN'S SALE CONTINGENT

"SEISED

REMAINDER

CREDITORS

ESTATE OF DECEDENT RIGHTS IN REAL ESTATE - LIMITATIONS.—(1) Under the laws of New York, an infant who has a remainder in fee, contingent upon the termination of a qualified fee, is "seised" of the land, within the meaning of 2 Rev. St., p. 194, § 170, providing that any real estate of which an infant is "seised" may be sold, by order of court, upon petition of guardian or next friend; and a sale of the infant's interest in the land, so made, before the qualified fee is determined, is valid. (2) Under Laws N. Y. 1873, § 211, providing that real estate of any decedent the title to which has passed out of any heir or devisee, by conveyance or otherwise, to a purchaser in good faith and for value, shall not be sold, under certain acts therein referred to, to satisfy a debt of the estate, unless application for such sale is made within three years of the grant of letters testamentary or of administration, the lapse of such three years will free from liability the property of an infant devisee which has been sold at guardian's sale under the provisions of 2 Rev. St. N. Y., p. 194, § 170, and it is of no consequence that subsequently the title again vests in such infant. June 7, 1887. In re Stevens. Opinion by Danforth, J.; Andrews, J., dissenting.

JUDGMENT-RES ADJUDICATA — CREDITOR'S BILLRECEIVERS. An action was brought by a creditor to subject certain property which had belonged to the Erie Railway Company, and which had come into the hands of the defendants under a mortgage sale, to the payment of the claims of plaintiff and other creditors. An action had previously been begun by the attorneygeneral in the name of the people, under 2 Rev. St. N. Y. p. 463, § 38, for the dissolution of the company on the ground that it was insolvent. J., the president of the company, was appointed temporary receiver. Thereafter, by leave of the court, the mortgagee of the company brought suit to foreclose the mortgage, and J. was appointed receiver in that action also. An order of sale was made therein, under which the track and also the property in controversy in the present suit were sold. On the application of the receiver in the foreclosure suit for authority to deliver the property to the purchaser, authority was granted to make the delivery subject to the claims arising out of the action by the people. Thereafter, in an accounting in the latter action, it was found that the whole property was subject to the mortgage. Held, that neither the receiver in the action by the people nor the general creditors of the company were necessary parties to the foreclosure proceedings; that the receiver in that action represented the creditors, and had power to contest any claims against the estate of the corporation, including the claim of the mortgagee; and that the proceedings and judgments in the two suits were final and binding on the plaintiff. April 19, 1887. Herring v. New York, L. E. & W. R. Co. Opinion by Earl, J.; Finch and Peckham, JJ., dissenting.

act of 1880, chap. 269, and not under the general provisions of the Code of Civil Procedure. July 1, 1887. People ex rel. Church of the Holy Communion v. Assessors of the Town of Greensburgh. Opinion Per Curiam.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CARRIERS- -TICKETS - REQUIRING PASSENGER'S SIGNATURE-WAIVER OF CONDITION.-A railroad company sold and delivered a thousand-mile ticket to a purchaser, who paid in money the usual rate to the class of travellers to which he belonged, and who secured it in ignorance of the following directions printed thereon: "Conductors will not honor this ticket unless properly stamped and signed by the purchaser, and will strictly enforce the above conditions." Instructions of the company to its ticket agents, and the uniform custom regulating the sale of such tickets, required that the purchaser sign certain conditions printed thereon before delivery to them. The ticket in question was delivered to the purchaser, and several times honored by the company's conductors, without requiring him to sign the conditions. Held, the company thereby waived such requirement, and its conductor was not justified in ejecting the purchaser from his car by reason of his refusal to sign the ticket, and to pay the usual fare in money for his proposed passage. Sup. Ct. Ohio, June 28, 1887. Kent v. Baltimore & O. R. Co. Opinion by Owen, C. J.

GRATUITOUS BAILMENT.- A passenger on a railway train entered a car, having in a pocket of his overcoat a sum of money, and gave the overcoat to the porter without mentioning the money, and the porter hung the coat in the passenger's berth. Held, that the money was in his own custody and at his risk; and the fact that soon afterward an accident overturned the car, and on the passenger making his way out, he told the porter and brakeman of the railway company that the money was in the car, put no liability for the money on the company as gratuitous bailee or otherwise, and it was not in such case responsible for the loss of the money. The plaintiff's position is, that after the accident the defendant became a gratuitous bailee of this money; and while in case of gratuitous bailment it is admitted that the bailee is ordinarily liable for only gross negligence, yet it is claimed that the defendant became such bailee by reason of this accident, and hence by reason of his own wrong, and that therefore the defendant should be held to a higher degree of diligence. The error in all this is that defendant was entitled to be notified of this money in the outset, and to be paid accordingly if responsibility was to arise in case of an accident. It should have a right to protect itself against accidents in its own way, and not be subjected to a hazard of which it had no knowledge and no reason to anticipate. At least, we are justified in saying that the simple occurrence of the accident is not enough to change the rule as to the degree of care required if defendant is to be considered a gratuitous bailee of this oney. In Lloyd v. West Branch Bank, 15 Penn. St. 173, a package of notes had been left with defendant's cashier as a special deposit, without permission of the directors of defendant and without compensation. It was held that the law would not imply a contract between the depositor and the defendant for the safe-keeping of such deposits in the absence of gross negligence or bad faith on the part of defendant. Such deposit was outside the regular business of the defendant. The case of Leach v. Hale, 31 Iowa, 69, is cited and relied upon by the plaintiff, but it does not seem to us to be in point. The transaction

in that case was within the business of the bank. The case at bar seems to fall more nearly within the ruling in First Nat. Bank v. Ocean Bank, 60 N. Y. 284. Iowa Sup. Ct., June 27, 1887. Hillis v. Chicago, R. I. & P. R. Co. Opinion by Adams, J.

CONTRACT-IN RESTRAINT OF TRADE-NO LIMIT OF TIME. Where the defendant had agreed to act as clerk and traveller for the plaintiff in the business of a wine and spirit merchant, carried on by him at Burton-on-Trent, and had further agreed not at any time thereafter, either alone or in partnership with, or as clerk, agent, or traveller, to any person or persons whomsoever, to carry on or conduct, or assist in carrying on or conducting, the trade or business of a wine and spirit merchant, or any branch thereof, within the distance of fifty miles from that town without the license and consent of the plaintiff, held that the restriction imposed upon the defendant was not in excess of what was required for the reasonable protection of the plaintiff in his business; that the agreement was not invalid on the ground that it was contrary to public policy, as being in unreasonable restraint of trade; and that the plaintiff was entitled to a perpetual injunction to restrain the defendant from a breach thereof. Ch. Div., May 10, 1887. Parsons v. Cotterill. Opinion by Kay, J.

ABORTION INDICTMENT

SUF

CRIMINAL LAW FICIENCY.— A statute among other things prescribed a punishment for selling, or causing to be sold, any medicines for the purpose of producing an abortion, or causing the miscarriage of any pregnant woman, or for any person knowingly using, or causing to be used, any means whatever for the same. Held, that a count in an indictment charging the accused with advising, soliciting and inciting a certaid named pregnant woman to take and swallow a large quantity of noxious and poisonous drugs and preparations, for the purpose of causing an abortion, without any averment that the woman took the drugs, did not charge any offeuse under the statute. The charge is that the traverser solicited a pregnant woman to take certain drugs for the purpose of causing an abortion. It is not stated that she took the drugs. The act is germane to those prohibited by the statute. It is an effort, by solicitation, to cause means to be used for a guilty purpose. It may be urged that a solicitation is an attempt, and that an attempt to commit a misdemeanor is a misdemeanor. Pursuing the same train of infereuce and reasoning, we may go a step further and maintain that as the solicitation is a misdemeanor, an attempt at solicitation would by the same rule be also a misdemeanor. This process might be indefinitely extended so as to reach persons very remotely separated from the act which the statute intended to punish. Certainly it would be a great public calamity to invent crimes by subtle, ingenious, and astute deduction. In all free countries the criminal law ought to be plain, perspicuous, and easily apprehended by the common intelligence of the community. It is the essence of cruelty and injustice to punish men for acts which can be construed to be crimes only by the application of artificial principles, according to a mode of disquisition unknown in the ordinary business and pursuits of life. The Legislature, with ample power over the whole subject, determined what offenses should be punished. If it had desired that other actions of cognate character should become penal, it would have so enacted. It is the duty of the courts to interpret and administer the legislative will; but in cases of criminal cognizance they must resolutely determine never to exceed it. It has frequently been stated that an attempt to commit a misdemeanor is by the common law a misdemeanor. There are undoubtedly many instances in which this is true; but it can

not be maintained as a universal principle. The law has declared that an attempt to commit a felony, or a persuasion of another person to commit a felony, is a misdemeanor; and it has declared many actions to be misdemeanors where the purpose of the offender was not consummated, although, if consummated, it would have been only an offense of this grade. Acts of this description are well defined, and their character well understood. There must be an unlawful purpose, and an act committed which would carry it into immediate execution unless it were prevented by some counteracting force or circumstance which intervenes at the time. We may see an illustration of this doctrine in cases of assault and battery. A battery is defined to be the unlawful beating of another; and an assault is an attempt to beat another without touching him. But it is held that a purpose to commit violence on the person of another, if not accompanied by an effort to carry it into immediate execution, falls short of an assault; and that where an unequivocal purpose of violence is accompanied by any act which, if not stopped or diverted, will be followed by personal injury, the attempt is complete. State v. Davis, 1 Ired. 125. The law would not be a practical system if it did not define with precision the nature and circumstances of the attempts which are criminal, and determine what acts are necessary to make the attempt a substantive offense. In our judgment it has done so, and not left us to grope after results under the guidance of vague general expressions. The act described in the second count is extremely immoral, and very offensive to the sensibilities of all virtuous people, but we have no power to make a law for its punishment. Md. Ct. App., June 23, 1887. Lamb v. State. Opinion by Bryan, J., Alvey, C. J., dissents

EVIDENCE-DECLARATION-HOMICIDE.

- The declarations of a by-stander at the time of the criminal act, inculpating the accused as the offender, are admissible in evidence against the accused only upon proof that he heard the declarations, and that he heard them under circumstances calling upon him to make a response. "The question is," says Mr. Wharton, "is the evidence offered that of the event speaking through participants, or that of observers speaking about the event? In the first case, what was thus said can be introduced, without calling those who said it. In the second case they must be called." Whart. Crim. Ev., § 262. To the same effect is the following from Mr. Bishop's treatise on Criminal Procedure: "But while the declarations and outcries of persons neither on trial nor injured by the defendant's acts may be admissible, to be so such persons must be otherwise connected with the transaction than mere lookers-on, or the defendant must have been listening, and perhaps under circumstances requiring from him some response." 1 Bish. Crim. Proc., § 1087. Hearsay testimony, as a rule, is admissible to prove no fact which is in its nature susceptible of proof by witnesses testifying of their own knowledge. Bradshaw v. Com., 10 Bush. 576; Holt v. State, 9 Tex. App. 572; Means v. State, 10 id. 16; Shelton v. State, 11 id. 36; Roscoe Crim. Ev., 22, 23. The circumstances of the Kentucky case of Bradshaw v. Com., supra, perhaps presents strong reasons for admitting the declarations of bystanders not connected with the transaction as can easily be conceived. In that case the theory of the prosecution was that defendant had shot deceased with a pistol while on the platform of a railway coach, and thrown the body therefrom, the train at that time being in motion. In support of this theory, per. sons inside the coach and immediately in rear of the platform were permitted to testify to the following exclamations made by persons standing on the platform and in the immediate presence of the actors: "Bradshaw has shot him!" Bradshaw has pushed

him off!" "Bradshaw has killed him!" It will be noted that these exclamations were made upon the instant, and presumably in the hearing of the accused. There was in them certainly enough of spontaneity to make them of the res gesta; but they were held inadmissible upon the single ground that the persons making them were in no way connected with the main fact. Cases may and do arise in which the exclamations of by-standers unconnected with the transaction are admissible, of which the following furnishes an illustration. A. and B. are engaged in a combat. C., a by-stander, cries out: "B. is trying to cut A. with a knife!" In the further progress of the difficulty, B. is injured at the hands of A. This exclamation is admissible, for the obvious reason that it illustrates A.'s intent; it being presumed that the apprehension of danger thereby created influenced his action; and this, whether the information was in point of fact true or false.

Let us however reverse the conditions: Suppose, after exclamation, B., the party whom the exclamation represents as attempting to use the knife, inflicts an injury upon A., and is put upon trial. Here the exclamation is not admissible to illustrate the subsequent act, since this is better illustrated by a physical fact, the act itself, to the commission of which the witness must be called. If this conclusion be not correct, and it be held that the exclamation was admissible, either to identify the accused, to show flight, or for any other purpose, it will scarcely be deemed that the accused must have heard it, and have heard it under circumstances calling for a response, before he could be charged by silence. The burden of showing that the exclamation was heard will in such case rest upon the State; and in a majority of cases this can only be done by circumstances, such as contiguity and other opportunities for hearing. But whether shown by proof or by circumstances, the proof that the exclamation was heard by the accused must be the predicate for the introduction of the exclamation itself. Admitting however that the exclamation was heard by appellant, it becomes a question whether the circumstances required of him a response. According to the testimony, another person accompanied appellant at the time the declaration was made. Was the declaration or exclamation a sufficient indentification of the appellant to call upon him for a response? Did the declaration individualize him as even the one of the two persons against whom the charge was made? As above stated, to entitle the State to introduce the declaration of a by-stander, it must be clearly shown that the defendant understood himself to be accused, and the circumstances must be such as to require from him a response. Tex. Ct. App., June 11, 1887. Felder v. State. Opinion by Hurt, J. DEED-PROFIT A PRENDRE-SHOOTING PRIVILEGELICENSE. A graut of "the sole and exclusive right, privilege, and easement to shoot, take, and kill” wild fowl, on the "lakes and sloughs and waters" of the grantor, executed to the grantees, "their heirs and assigns, forever," with a privilege of "ingress and egress to and from said lakes, waters, and sloughs, for the purpose of shooting and taking wild fowl as aforesaid," is the grant of a profit a prendre, and not a mere license revocable at the pleasure of the grantor. The distinction between a grant and a license is to be taken as understood, as the contention here is that the right and privilege granted by the terms of the deed do not constitute a grant of a license of a profit a prendre. Rights exercised by one man in the soil of another, accompanied with participation in the profits of the soil thereof -as rights of pasture or digging sand are termed profits a prendre. They are said to differ from easements, in that the former are rights of profit, and the latter are mere rights of convenience without profit. "A right to take something out of the soil of

another is a profit a prendre, as the right of common; and also some minor rights, as a right to take drifted sand, or a liberty to fish, fowl, hunt, and hawk." Crabb, Real Prop. 125, chap. 1; Phear. Water, 57. In Ewart v. Graham, 7 H. L. Cas. 334, Lord Chancellor Campbell, said: "The property in animals fero naturæ, while they are on the soil, belong to the owner of the soil, and he may grant a right to others to come and take them, by a grant of hunting, shooting, fowling, and so forth. That right may be granted by the owner of the fee-simple, and snch a grant is a license of a profit a prendre." It is seen then that rights which are said to be prendre are distinguished again into rights coupled with profits, which are called profits a prendre, or rights without any profits, which are called easements. But "the distinction between an interest in the soil, or a right to profit in it, and an easement is not always palpable. The line of separation is sometimes obscure, in some points unsettled, with no established principles to determine it." Davis, J., in Hill v. Lord, 48 Me. 99. "For a profit a prendre in the land of another, when not granted in favor of some dominant tenement, cannot be said to be an easement but an interest or estate in the land itself." Walworth, Ch., in Post v. Pearsall, 22 Wend. 425. And Mr. Washburn, says: "This right of a profit a prendre, if enjoyed by reason of holding a certain other estate, is regarded in the light of an easement appurtenant to such estate; whereas if it belongs to an individual, distinct from any ownership of other lands, it takes the character of an interest or estate in the land itself, rather than that of a proper easement in or out of the same." Washb. Easem. 7. But it has been expressly held that the right to enter upon lands of another to cut grass, for pasturage, for the purpose of hunting, or for fishing in an unnavigable stream, is an interest in the land, or a right to take a profit in the soil. Foxall v. Williams, 1 Croke, 180; Fowler v. Dale, id. 363; Pickering v. Noyes, 4 Barn. & C. 639; Wickham v. Hawker, 7 Mees. & W. 63; Waters v. Lilley, 4 Pick. 145. A grant of a right to kill and take game on the lands of the grantor is a grant of an interest in the land itself, and within the statute of frauds. Webber v. Lee, 9 Q. B. Div. 315. In Wickham v. Hawker, supra, it was held that a grant to a person, his heirs and assigns, of "free liberty, with servants or otherwise, to come in and upon lands, and there to hawk, hunt, fish, and fowl," is a grant of a license of profit, and not of a mere personal license of pleasure, and therefore it authorized the grantee, his heirs and assigns, to hunt, fish, and fowl by his servants, in his absence, and that such a liberty is a profit a prendre. See also Washb. Easem. 8-11; Washb. Real Prop. 313; Gould Waters, §§ 24, 25, 184, 185. As the owners of the lands which included such lakes, sloughs, and waters thereon, the property of animals feræ naturæ, while on the lands of such waters, belonged to the defendants by virtue of such ownership. The defendants had the exclusive right to take and kill such wild fowl upon the lakes or other waters upon their lands, and they had the right to grant to the plaintiffs the sole and exclusive right to take and kill such wild fowl at the places designated in their deed. But the sole and exclusive right granted to the plaintiffs to take and kill any and all wild fowl on such lakes, sloughs, and waters is inconsistent with the right of any other persons to take or kill them or to use and exercise such privilege at such places. It is a right exclusive of all others at such particular or specified places. Holford v. Bailey, 66 E. C. L. 425447; 55 id. 1000-1007. If this the plaintiffs granted -this sole and exclusive privilege to take and kill such game at such places on their land - it divested them of all right and authority to permit or grant other persons to take and kill such wild fowl upon any lake,

slough, or waters lying upon their lands. Here there is a grant of a sole and exclusive right and privilege to the plaintiffs, their heirs and assigns, forever, to shoot, take and kill such game on the lakes and waters upon the lands of the grantors, and which right in Webber v. Lee, supra, was held to be a grant of an interest in land, and within the statute of frauds. This right, then, to take something out of the soil, or from the land of another, which includes shooting, hunting, and fishing, is a profit a prendre; and Mr. Washburne says, "is so far of the character of an estate or interest in the land itself that, if granted to one in gross, it is treated as an estate, and may therefore be for life or for inheritance." Washb. Easem. 9. It is manifest therefore that the contention that the deed only created a license, revocable at the pleasure of the defendants cannot be sustained. Oreg. Sup. Ct., June 13, 1887. Bingham v. Salene. Opinion by Lord, C. J. WITNESS-EXPERT-REFUSAL TO ANSWER-FEES.A physician and surgeon upon the stand as a witness cannot properly refuse to answer a question upon the ground that his answer will be expert evidence, and that he has not been summoned or paid as an expert witness. Though there have been contrary rulings in other jurisdictions (see Lawson Exp. Ev. 257 et seq.), in this State no witness can refuse to answer a question on the ground that his answer will be what is kuown as expert evidence; and this, whether he has been summoned or paid as an expert witness or not. This subject is well treated in Ex parte Dement, 53 Ala. 389, and we refer to that case as fully and clearly presenting the reasons for what we hold to be the rule in this State. Minn. Sup. Ct., May 6, 1887. State v. Teipner. Opinion by Berry, J.

SIR CHARLES RUSSELL, Q.C.

you get a group of young lawyers together you topics than any other body of men belonging to any other profession on the face of the earth. On one topic however you are more than likely to find them in complete accordance namely, in placing Sir Charles Russell at the head of his profession. The harmony of opinion concerning Sir Charles Russell will probably halt there. Some of those present are pretty sure to cherish strong opinions concerning Sir Charles Russell couched in a not too impassioned note of praise. Men who cannot possibly deny - and indeed have no desire to deny -- his extraordinary ability, are not over-eloquent in measuring out eulogisms of the man himself. The reason is not far to seek. Sir Charles Russell is a somewhat roughly-moulded man, hot of temper, and slightly domineering of nature. He has never taken any pains to make himself popular; he has never swerved a hair's breadth from the course he has marked out for himself in order to woo the sweet voices of public opinion. As a natural consequence Sir Charles Russell has, if not many enemies, at least a good many critics, and critics commonly prefer censure to applause. But on the other hand, those who know Charles Russell well- and there are many such -speak of him behind his back in terms which, if he overheard them, would bring a smile of good-humored protest to his unimpassioned features and tinge his wouted pallor with an unfamiliar blush.

In point of fact Sir Charles Russell is a highly successful man, and enjoys the privileges and pays the inevitable penalties of success. Look at him as he stands up to speak in the chamber or moves through the lobby, and you will understand why he is so successful. When nature built up the composition of Charles Russell she blended in his "predestine plot of

earth and soul" all the qualities which best make for success. The handsome face, with the clear-cut regular features and the curious gray pallor of complexion, shows determination, courage, endurance in every line. The squarely set-up, massive body, of somewhat rugged outline, is saturated, if we may use the expression, with physical strength. The keen, bright eyes, which seem to scrutinize mankind with the impartial pertinacity of a gimlet, would alone have marked him out as a heaven-sent cross-examiner. He has had need of all his qualities, and he has used them all to their utmost. He has reached his present position by no easy paths; he has known poverty; he has had to fight a hard and stubborn fight which would have smashed a weaker, less persistent man; he has known what it is to have what Americans call "a bad time," but he has pulled through it all, and stands close to the summit. He does not take his ease now - it is not the man's nature to take his ease - but he is able to enjoy himself in his own way, and he does. The court-house and the Senate are still his battle-fields, wherein he fights as hard as ever; but his relaxation has little to do with either of them. Sir Charles Russell's weakness - if so adamant an individual can be said to have a weakness is that noble animal the horse.

The lady in Mr. Pinero's comedy who was declared by certain scornful critics of the stables not to know a horse from a ham sandwich is not alone in her ignorance. There are a very large number of individuals, men and women, very worthy persons in their way, to whom the horse is as strange and terrible an entity as the mastodon, to whom the saddle is as the bridle, and the difference between a stifle and spavin wholly unknown. For all such people Sir Charles Russell has an unfathomable contempt. The horse to him is a kind of idol, and any horse, were he the sorriest old screw that ever staggered in a pound or shambled on a common, has points of interest and attraction in him denied to the noblest of mankind. But where Sir Charles best likes to see the horse is racing with his fellows on some level sweep of turf, while all eyes strain to follow the flashing colors, and fortunes wait to change hands at the winning post. It is indeed hinted that Sir Charles's good fortune at the bar has been found more fickle on the turf.

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But Sir Charles Russell does not confine his affection for horses to patronizing their prowess on the turf. He is himself a mighty cavalier, and never happier than when he is bestriding some splendid animal with a touch of fiery vehemence akin to his own. In Ireland, in England - and not in Ireland or England alone is his fame as a horseman printed abroad. It is so not very long ago that an English globe-trotter wandering out in the west of America, and waiting for a train at some small way-station, saw a horseman galloping at break-neck speed across the prairie, apparently from the very edge of the horizon. As he neared the station the impetuous rider drew up his steed in true western fashion, bringing the horse almost on his haunches at the very point when he wished to dismount, flung back the broad sombrero which shaded his face, and disclosed to the amazed and delighted traveller the features of Sir Charles Russell, as much as home on the prairie as on the green benches of Westminster.

It is probable that Sir Charles Russell owes something of the great success which has led him to the green benches of Westminster to the fact he has practiced in both branches of the legal profession. He was a solicitor for a considerable time before he became a barrister and entered on the high road which leads to Queen's counselships, probable offices of State, and possible peerages. Across the Atlantic a man of legal turn of mind can be both things at once: can be at the same time solicitor and barrister; can