not "declare the sense of mankind as understood," but as not understood. Common sense and newspaper sense are frequently very bad sense, and the public and the newspapers very frequently proclaim ex cathedra the silliest opinions on legal questions. But we do not deny their right to do so. The public right of criticising the judges, their conduct and opinions, is sacred and important, and we hope it may never be relinquished nor encroached upon.

logical teaching have other and appropriate places. We hope never to see the variant and absurd theological creeds promulgated in our common schools, and the only way to prevent it is to prohibit religious teaching in them.

NOTES OF CASES.

N Seroka v. Kattenburg, 17 Q. B. Div. 177, it was

larried Women's Property

We find our humorous case this week in McMur-Act of 1882, the husband is still civilly liable for a phy v. Harvey, Vermont Supreme Court, July 2, slander by his wife. The court, Mathew, J., said: 1886, holding that in a bastardy proceeding the "I am of opinion that the husband is liable to be court, after the evidence is closed, one argument joined as a defendant in this action. It is agreed made, and the defendant has moved for a verdict, that before the passing of the Married Women's has power in its discretion to allow the complainant Property Act of 1882, a husband must have been to introduce new evidence to prove that she was a joined as defendant in an action brought against single woman when the child was begotten. Taft, the wife for a tort committed by her; but it is said J., said: "The question no doubt had escaped the that that act altered the law in this respect. Now, attention of her counsel, or been regarded by him if this construction is right, the statute in question as immaterial; and to have rendered a verdict for is an act for the relief of husbands, and not an act the defendant because of the inability of the court affecting the property of married women. Why is to vary a rule of practice, and relieved him from this effect attributed to it? it is said that since the the support of a child, whom, at the instigation of passing of the act whatever the wife earns is her the devil, he had brought into being, and his ofown property, and is made a fund for the discharge fense to have remained unwhipped of justice,' we of her liabilities, whether in tort or contract; and think would have shown a serious defect in the ju- that therefore it is only fair that the husband should risprudence of any civilized country.” We think be discharged from his liability for the torts of his so too, although we have a little doubt about the wife. But if we look at the terms of the act it appropriety of laying the blame on the devil. pears impossible to put such a construction upon it; sub-section 2 of section 1 is an enabling clause, and The address of the Hon. Wayne MacVeagh to the appears to give the option of suing the wife where Yale Law School last June treated mainly of politi- she has separate property, and there is a chance of cal topics. Mr. MacVeagh is opposed to any re- the plaintiff being able to enforce a judgment striction of immigration. We would like to ask against her, while in cases where there would be no him if it would not be wise to shut out anarchists chance of enforcing judgment against the wife the and communists. He is also opposed to any denial husband is left subject to his old common-law liaor postponement of rights of citizenship. On this bilities. The words of the section are need not be we do not agree with him, but it is hardly within joined,' but they do not discharge the husband our province to discuss it. He also discusses the re- from his old liability; they are intended to give to lations of capital to labor, and of both to law. The a plaintiff the option of suing husband and wife tomost remarkable idea in the address, however, is the gether or suing the wife alone; judgment may be following: "It sounds, of course, at present like a entered against the wife, and execution issued wild suggestion, but after all, why may we not hope against her separate property, if she has any; but that Democracy, if it started upon such a course, where she has none the plaintiff is entitled to add and was properly encouraged, would complete the the husband as a co-defendant." This is in harcircle of its beneficent influences upon society by mony with Tait v. Culbertson, 57 Barb. 9; Fitzgeradding the last and greatest of blessings by tak-ald v. Quann, 33 Hun, 652, but contrary to Norris v. ing religion also under the protecting care of the State? It is indeed a far cry' to the time when dogmatic theology will not only be regarded as unnecessary to the teaching of religion, but as incompatible with it; and yet the future, which has in store so many surprises, may be reserving this also - religious instruction in America as a part of all public education." If religious or moral instruction could be separated from theological instruction we might assent to this, but it cannot, and so we are opposed to the orator's idea. Nothing should be tolerated tending to bring the Church into the State, not even the reading of the Bible in the common schools.

Corkhill, 32 Kans. 409; S. C., 49 Am. Rep. 489.

In Carte v. Evans, Circuit Court, District of Massachusetts, June 21, 1886, it was held that where a piano-forte arrangement of the orchestral score of an opera was made by a United States citizen, with the consent of the non-resident foreign composers of the opera, and then transferred by him to a fellow-citizen, who procured a copyright, which he assigned to a non-resident foreigner, acting as agent of the original composers of the opera, there was nothing of evasion or violation of law, and that the assignee was entitled to the proReligious teaching and theo-tection of the court against infringers. This was

the case of "The Micado." Nelson, J., said: "That an arrangement for the piano-forte of the orchestral score of an opera such as Tracy has produced is an original musical composition within the meaning of the copyright law, is well settled. In executing such a work the ideas of the composer of the opera cannot be wholly reproduced, and other ideas, more or less resembling them, or wholly new, have to be substituted and added. To do such a work acceptably requires musical taste and skill of a high order, and a thorough knowledge of the art of musical composition, and especially of instrumentation. No two arrangers, acting independently, and working from the same original, would do the work in the same way, or would be likely to produce the same results, except so far as they might both resemble the original. An arrangement of this character would undoubtedly be a piracy of the original opera, unless the arranger has in some way acquired the right to make such use of the original; but if he has acquired that right the arrangement is substantially a new and distinct composition, and as such is entitled to the protection of the court. Wood v. Boosey, L. R., 2 Q. B. 340; affirmed, L. R., 3 id. 223; Boosey v. Fairlie, 7 Ch. Div. 301; affirmed, 4 App. Cas. 711; Thomas v. Lennon, 14 Fed. Rep. 849; Drone, Copyr. 176. Tracy's work was done with the consent of the original composers of the opera, and in their interest. Their is nothing in our coppright law to prevent one of our own citizens from taking out a copyright of an original work composed by him, even though the work of composition was performed at the procurement and in the employment of an alien; or from assigning his copyright to an alien under an agreement made either before or after the composing of the work. A non-resident foreigner is not within our copyright law, but he may take and hold by assignment a copyright granted to one of our own citizens. The proprietor as well as the author is entitled to enter the work for copyright. The consent of Tracy was sufficient to constitute Browne the proprietor for the purpose without a formal assignment. Lawrence v. Dana, 4 Cliff. 1, 65. The effect of the transaction was the same as if Tracy had made the entry in his own name, and then assigned to Carte. The defendants insist that the method of proceeding by which the copyright was procured, and afterward vested in the plaintiff, a non-resident foreigner, was a mere evasion of our copyright act, and as such is not entitled to the protection of the court. But I am unable to perceive how it can properly be called an evasion, if by that is meant a proceeding by which the letter or spirit of the law is directly or indirectly violated. The thing copyrighted was an original work by an American composer, and therefore the lawful subject of copyright. All the steps taken to secure the copyright, and vest it in the plaintiff, were authorized by our statute. Undoubtedly the plan adopted displayed great ingenuity, and the effect is to vest in these foreign authors valuable American rights in their work, but their is nothing of evasion or

violation of law. The plaintiff is therefore entitled to the protection of the court against infringers, if his copyright is otherwise valid."

son.

In City of Ft. Wayne v. Coombs, Indiana Sup. Ct., June 16, 1886, it was held that it is not error to refuse to permit the defendant to cross-examine an expert witness called by the plaintiff before the examination in chief by the latter. Elliott, J., said: "It is for the court to determine whether the witness is or is not qualified to testify as an expert, and the question as to his competency is exclusively for the court. Some of the cases go very far upon this point, for some of them hold that the decision of the trial court is conclusive, but we think the cases which hold that where there is no evidence at all tending to prove that the witness is qualified to testify as an expert, or where there is a palpable abuse of discretion the ruling of the trial court is subject to review, are supported by the better reaSouthern Life Ins. Co. v. Wilkinson, 53 Ga. 535; Wiggins v. Wallace, 19 Barb. 338. But whatever may be the true rule upon this point, it is quite clear that the court must decide the question of the qualification of the witness, and when it is made to appear prima facie that the witness possesses the requisite qualification the court may admit the testimony, and is not bound to allow a preliminary cross-examination. This was so expressly decided in Sarle v. Arnold, 7 R. I. 582. It is indeed difficult to perceive how any other conclusion could be reached when once it is granted that the court need only be satisfied that prima facie the witness is competent. Rog. Exp. Test. 50. No exact standard by which to determine the competency of the witness exists, and much is necessarily left to the discretion of the trial court. Forgey v. First Nat. Bank, supra; Sage v. State, 91 Ind. 141; Goodwin v. State, 96 id. 550, see page 558; State v. Maynes, 61 Iowa, 119; McEwen v. Bigelow, 40 Mich. 217; Rog. Exp. Test. 27. If the evidence satisfies the court of the qualification of the witness it is not bound to permit a preliminary cross-examination, though it would no doubt have a right to do so, and in our judgment this right is one that should be very liberally exercised. But the question which we are compelled to decide is whether the court is bound to check the examination of the witness and allow a preliminary cross-examination, and on that question the law is with the appellees. A text writer says: 'When a witness has been adjudged competent upon the preliminary examination opposing proof going to his incompetency is to be addressed to the jury to effect the value of his testimony, and not to the court for the purpose of excluding his testimony.' Rog. Exp. Test. 50. In our own case of Davis v. State, 35 Ind. 496, it was said of a witness that 'whether he is competent to testify at all as an expert is a questiou for the court, but after he has been allowed to testify the weight of his testimony is for the jury.' It is generally held by the courts, and uniformly by ours,

that the regular cross-examination may fully go into the question of the competency of the witness, and if it appear that he is not a qualified expert witness his testimony will be weakened or entirely destroyed. Davis v. State, supra; Goodwin v. State, supra; Louisville, etc., Co. v. Falvey, 104 Ind. 409. The right to a full cross-examination is thus secured, and if it turns out that the witness is not qualified the jury may be told that his opinion is of no weight, but without such a direction it must be presumed as jurors are to be treated as men of fair intelligenee—that the opinion of one not qualified would not be given any weight by them. Louisville, etc., Co. v. Falvey, supra; Washington v. Cole, 6 Ala. 212. This plenary right of cross-examination affords full opportunity to discover the extent of the qualifications of the witness, and prevents material harm to the party against whom he testifies."

HOW MR. H. BECAME A JUDGE.

torney would ever have thought of briefing the "learned" gentleman in a case where much law was required. He was pre-eminently a nisi prius man, irresistible with a jury, weak before the court "in banc." How should this difficulty be got over? This was troubling his mind, and as he entered chambers his ancient clerk at once perceived that the "old man" was not in the best of humors.

On Mr. H.'s desk lay a new and bulky brief. He glanced first at the fee, and then at the title, and muttering "that confounded Fraser case again!" turned to his letters, one of which particularly interested him. It was from his firm friend, the attorney-general, and contained the news, received at first hand, that old Judge Jones had definitely made up his mind to take his pension and retire at the end of the year. How was Mr. H. to step into the old judge's shoes? Whilst still pondering over this problem, Mr. H.'s eyes fell upon the Fraser brief, and as with a flash of light he saw his way clear. This "Fraser v. Jackson" case, it must be explained, was a cause belonging to that difficult class

MR. He out Cnted man. Beginning as an attorney's

[R. H., Q. C., was a very successful but a very of which "Fletcher v. Rylands" may be taken as

office-boy, his first ambition was to become an attorney. When he had gained this point, he yearned to be a barrister. The wig assumed, he straight way was eager for the silk gown. This donned, he wanted a fortune. The fortune made, he wanted a position in "society," and married accordingly. And now, all else gained, his restless ambition desired a seat on the bench. For more years than he cared to remember he had led his circuit. For at least ten years he had been recognized as one of the half dozen leading advocates at the bar. Hard work had been his lifelong habit, and the regular, honest and impartial ease of judicial routine secured, by comparison, a haven of rest, which he could well afford to make the sacrifice of income involved in promotion to the bench. So it came to pass that on the clear October morning with which our story commences, the subject of Mr. H.'s reflections, as he walked down to chambers, was "how shall I become a judge?"

None of the ordinary obstacles to promotion stood in his way. His reputation as a great advocate was, as we have said, established. After a long "outing" his political friends were again in power, and though he had never sat in parliament, yet he had thrice carried the Conservative colors through hot battle to honorable defeat in a perversely Radical constituency. He had spent much money for the party, and he had friends in high places who would not let his merits be forgotten. But (there is always a fatal "but " in these cases) the chancellor was a great lawyer, and a most conscientious man. He never had appointed, he had repeatedly said, he never would appoint any man to the bench who was not a thorough lawyer. Now. Mr. H., Q. C., was not even an average lawyer. His practical mind had always abhorred studies which bore no immediate, evident fruit. No at

an example. Mr. H. had led for the plaintiffs at Assizes. The case had then gone to a referee, and now came up again upon the referee's findings for argument before the full court. The brief "in banc" would assuredly never have been intrusted to Mr. H., but for the fact that the plaintiffs were already so exhausted by the prolonged litigation that their solvency was becoming doubtful, and the attorney, one of H.'s oldest clients, felt that he could rely upon H. (who, with all his defects, had a somewhat higher standard of professional honor than most leaders at the bar) to overlook the smallness of the fee, and do the best he could. "H. knows," said the attorney to his factotum, when the question was discussed between them, "that I always give him liberal fees when I can, and I think he is man enough to take small allowance for once." It is possible that the attorney might have reckoned without his host but for the happy coincidence that the case furnished H. with the very chance he wanted. Here was a purely legal argument of the highest kind, in which several public and private acts of Parliament had to be reconciled with each other, and had all to be brought into subordination to one of the most subtle of legal principles. It was a case, too, of great commercial importance; one that would be sure to enlist the most careful attention of the judges, and if H. could only play his part well, and appear in the new character of a genuine lawyer, the chancellor's ban might be lifted, and the coveted ermine attained. Filled with this hope, H. settled down to read his brief. He found it diffuse, but full and careful. Cases were cited by the dozen, and no point or difficulty seemed to be overlooked. Next day H. deliberately, and to the extreme surprise of his clerk, abandoned a sensational divorce suit, and spent his time in the Temple library. For a week he studied as he had never studied before, and at last he

felt the glow of conscious mastery, and knew that he had the whole case at his finger's ends.

When the day of hearing arrived both the junior counsel (a man as old as H. himself, and a better lawyer) and the attorney were surprised alike at H.'s fluency and confidence in consultation, and at his extreme urbanity. The attorney, unaccustomed to compliments from queen's counsel, almost blushed when H. told him the brief was the best he had ever read, and the junior speedily perceived that for once he would not have to coach his leader. At length the argument commenced. The chief justice and Blackburn started off as usual with interruptions, but the chief, who could listen quietly when he once felt sure that the speaker was worth listening to, soon became silent, and treated Blackburn to a neat snub that had the desired effect. H. was at his best that day. All the eloquence and skill of the mere advocate was subdued and unobtrusively employed to render lucid an unbroken and logical argument, which seemed to demonstrate itself. For nearly three hours he held the close attention of the court. His opponent was a far superior lawyer, but he was altogether unprepared for such an attack. When the argument was finished it was evident that the court was strongly with the plaintiffs, though the complexity and importance of the case demanded a "C. A. V." and written opinions. Time to consider being duly taken, at the end of two months (an extraordiany delay in an English court) judgment was given for the plaintiffs. The opinions alone occupy more than one hundred pages of the Law Reports, but no case was cited, and no point advanced by any of the judges which had not been taken by Mr. H. in argument.

On his way home after the hearing H. was overtaken by the chief, who paid him a warm compliment, adding, with a little sub-acid smile, that the argument had surprised him as much as thunder out of a clear sky. The chancellor of course heard from friendly sources all about H.'s thorough mastery of mining law, and when old Jones, true to his word, retired, Mr. H., Q. C., became Sir W. H., one of her majesty's judges. He still ornaments the judicial bench, of which he is one of the most useful members, and the only peculiarity remarked about him by the critics of the bar is the frequency with which he fetches in "Fraser v. Jackson," head and shoulders, to illustrate any and every disputed point of law.

A. B. M.

RAPE-HUSBAND AS ACCESSORY. MICHIGAN SUPREME COURT, JULY, 1, 1886.

PEOPLE V. CHAPMAN.*

A husband, desiring to obtain a divorce from his wife, employed a man to seduce her while he could witness the act. The man, not being able to accomplish his purpose by persuasion, resorted to force, and committed a rape on the woman, who screamed and endeavored to protect herself, while the husband stood in a concealed place, and *S. C., 28 N. W. Rep. 896.

Attorney-General, for People.

Allen H. Frazer, for defendant and appellant.

MORSE, J. Under our statutes, which render all persons aiding, assisting or abetting in the commission of a crime, whether present or not present, liable to indictment, trial and punishment as principals, the respondent was proceeded against, tried and convicted of rape upon the person of his wife, Maggie Chapman. How. St., § 9545. At the time of the trial the alleged actual perpetrator of the crime, James Reagan had been convicted of the offense, and the testimony of defendant's guilt was mainly derived from his evidence and that of the wife.

The principal objection goes to the merits of the case. It is claimed by defendant's counsel in an elaborate argument, that the evidence does not warrant the conviction of the defendant. The theory of the prosecution was that an agreement was made between respondent and Reagan, that if the husband could catch Reagan in bed with Mrs. Chapman, or in the act of sexual intercourse, by which the husband would be furnished with evidence to obtain a divorce from his wife on the ground of adultery, Reagan should be paid $25 by respondent; that in pursuance of this plan, Jeremiah Chapman and Oscar Chapman, a brother of the accused, went into a room of the house where respondent lived, and bored a hole through the partition, where they could see into the part of the house where the wife was, or peeped through a partly-opened

door; that Reagan went in and committed a rape upon Mrs. Chapman, who resisted the outrage, but not successfully; that the husband and his brother heard her screams and witnessed her struggles, without offering to interpose in her aid; that Reagan knew they were there, watching him; and that after the crime was committed, or put at its completion, the respondent aud Oscar burst into the room, the husband exclaiming, "Now I have caught you."

The defendant and his brother testified and maintained that no such bargain was entered into with Reagan; but on the contrary, the husband being jealous and suspicious of his wife, they hid in the house for the purpose of verifying such mistrust; that Mrs. Chapman was a willing participant in adultery with Reagan; and that while they were in the act they rushed into the room, respondent grabbing a chair, saying, "I have caught you now right in the act; I have a notion to paralyze both of you."

The argument of the defendant's counsel is that the crime advised and bargained for with Reagan by respondent was not the crime committed, but adultery, and that the mere presence of the husband in the adjoining room, without any participation whatever in the offense, could not make him guilty of Reagan's independant crime; that his mental approbation was not sufficient, but his assent, to come within the statute, must have been manifest by some act of assistance in the perpetration of the rape. We are cited to a number of authorities as sustaining these propositions. Not one of them is applicable to the present case. If they were they would not be authority for this court.

If the story of Maggie Chapman be true, and it appears she has convinced twenty-four men of its truthfulness beyond a reasonable doubt, this husband is guilty of sufficient aid in the commission of the foulest of crimes to warrant his conviction as a principal under our laws. She testifies that Reagan caught her