and property of every kind owned, acquired or earned by her, before or during marriage, belongs to her, and not to her husband or his creditors." More particularity of expression is now required than formerly in Pennsylvania to create what is known as a "separate use trust," as distinguished from a "separate use," under the statute. But if it be true, as we have already shown, that these acts relate only to estates created by and existing under the law, and have no reference whatever to the separate equitable estate of a married woman, we cannot see how the language of these acts can in any way be applied in the construction of an instrument which, under the numerous decisions of this court, have been held to create a separate estate recognized only in equity. We cannot say that what was a trust before is no longer a trust, or make that a legal trust which, according to a wellestablished rule of property, has always heretofore been held to be an equitable separate estate only. Eveline Gross died after the passage of the act of June 3, 1887. Her last will and testament was probated September 4, 1888. By her will she provided, inter alia, as follows: "I hereby bequeath and devise to my said adopted daughter, Matilda Gross MacCounell, all the rest and residue of my estate, real, personal and mixed, absolutely and in fee-simple, and including therein any and all legacies which may lapse by reason of the decease of any beneficiary or otherwise; and it is my will that the said Matilda Gross MacConnell shall take and hold the property hereby given to her free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her own use and benefit, and subject to her own control." Embraced in this residue was the lot of ground situate at the north-east corner of Conrad and Harriet streets, in the Twentieth ward of the city of Pittsburgh, which Matilda Gross MacConnell subsequently sold to Reese Lindsay. The words of this will were, without doubt, according to all the cases, sufficient to establish a valid separate use trust in Matilda Gross MacConnell. We do not understand this to be seriously disputed. The instrument clearly speaks the donor's intention to bar the husband's marital rights -is a conveyance wholly to her own use and benefit, and subject to her own control. It is immaterial that no trustee was appointed, for equity will supply a trustee; nor is it of any consequence that no active duties were imposed, for the creation and existence of a separate use is, in equity, sufficient to support the trust against the effect of the statute of uses. No particular words have ever been held essential or indispensable for this purpose. It is enough that the expression of the conveyance should be such as to clearly indicate the intention of the donor. The judgment is reversed, and judgment is now entered in favor of the defendant on the case stated for the sum of $100, with interest from the 19th June, 1889, and costs. NEW YORK COURT OF APPEALS ABSTRACTS. ELECTION ACTION CONVERSION.-(1) The owner of goods wrongfully taken, which still remain in the wrong-doers' possession, may waive the tort, and sue on an implied contract of sale, in which event title to the goods passes to the wrong-doers. (2) The bringing of an ex contractu action by the owner against some of the wrong-doers is a final election to treat the transaction as a sale, and he cannot subsequently sue the others for conversion, the judgment-roll in the former action being admissible to show the fact of election. In some of the States it has been denied, and such denial placed upon the ground that the property re mained in the hands of the wrong-doer, and therefore no money having been received by him in fact, an implied promise to pay over money had and received by defendant to the plaintiff's use did not and could not arise. Such was the case of Jones v. Hoar, 5 Pick. 285. But the great weight of authority in this country is in favor of the right to waive the tort, even in such case. If the wrong-doer has not sold the property, but still retains it, the plaintiff has the right to waive the tort, and proceed upon an implied contract of sale to the wrong-doer himself, and in such event he is not charged as for money had and received by him to the use of the plaintiff. The contract implied is one to pay the value of the property as if it had been sold to the wrong-doer by the owner. If the transaction is thus held by the plaintiff as a sale, of course the title to the property passes to the wrong-doer, when the plaintiff elects to so treat it. See Pom. Rem. (2d ed.), §§ 567569; Putnam v. Wise, 1 Hill, 234, 240, and note by Mr. Hill; Berly v. Taylor, 5 id. 577, 584; Norden v. Jones, 33 Wis. 600, 605; Cummings v. Vorce, 3 Hill, 283; Spoor v. Newell, id. 307; Abbott v. Blossom, 66 Barb. 353. We think this rule should be regarded as settled in this State. The reasons for the contrary holding are as well stated as they can be in the case above cited from Massachusetts (5 Pick.), and some of the cases looking in that direction in this State are cited in the opinion of Talcott, J., in the case reported in 66 Barb. supra. We think the better rule is to permit the plaintiff to elect, and to recover for goods sold, even though the tort-feasor has not himself disposed of the goods. April 15, 1890. Terry v. Munger. Opinion by Peckham, J. Affirming 2 N. Y. Supp. 348. APPEAL-OBJECTIONS NOT RAISED BELOW.-Though under a complaint charging fraudulent representation that plaintiff had a uterine tumor, whereby she was induced to undergo a painful surgical operation, a verdict might have been directed on evidence of the operating physicians that they found a tumor and examined it after its removal, they being uncontradicted except by a physician who made an examination two months before, and not suspecting a tumor, found given, tending to show that the operation should not none, yet evidence having been, without objection, have been performed, as a skillful physician would have known, the case is properly submitted to the jury, though defendant objected to the submission of any question other than whether there was a tumor, the objection not having been placed on the ground of the pleadings. Wellington v. Morey, 90 N. Y. 656; Vaun v. Rouse, 94 id. 407; Tarbell v. Shipping Co., 110 id. 170. Second Division, April 15, 1890. Wells v. World's Dispensary Medical Ass'n. Opinion by Parker, J. Affirming 48 Hun, 588. GENERAL OBJECTIONS. Exceptions "to the findings of fact and to the conclusions of law of the referee herein" are too general to raise any question for review on appeal. Ward v. Craig, 87 N. Y. 550-557; Newell v. Doty, 33 id. 83; Wheeler v. Billings, 38 id. 263. Second Division, April 15, 1890. Thompson v. Hazard. Opinion by Haight, J. Affirming 45 Hun, 594, Mem. WEIGHT OF EVIDENCE.-Whether a contract of sale was entirely oral, or was embodied in a writing which recited that "we (defendants) have this day sold and transferred to " plaintiffs certain property is a question for the jury, on conflicting evidence. Second Division, April 15, 1890. Chamberlin v. Van Campen. Opinion by Parker, J. Reversing 43 Hun, 639. EXECUTION-REDEMPTION -COMPUTATION OF TIME -SUNDAY.-Under Code of Civil Procedure of New York, section 1454, providing that "a creditor who might have redeemed within fifteen months after the sale may redeem from any other redeeming creditor although the fifteen months have elapsed, provided that he thus redeems within twenty-four hours after the last previous redemption," Sunday is to be excluded from the computation when the last redemption occurred on Saturday. That day, like any other, occupies time; and except so far as prohibited by the common law or the statute, transactions on that day, not in themselves immoral, are not unlawful or invalid. Story v. Elliot, 8 Cow. 27; Sayles v. Smith, 12 Wend. 57. But for reasons founded in public policy, the maxim, dies non juridicus, is given a liberal construction and effect, so as to embrace in it that which may be deemed within its purpose aud meaning. Field v. Park, 20 Johns. 140; Van Vechten v. Paddock, 12 id. 178. It is now quite well established that the observance of the Sabbath day, as such, is a right which may be enjoyed without molestation by transactions of a secular character. Hence Sunday cannot, for the purpose of performing a contract, be regarded as a day in law; and when it is due on Sunday, performance on Monday following is in time. Avery v. Stewart, 2 Conn. 69; Salter v. Burt, 20 Wend. 205; Howard v. Ives, 1 Hill, 263; Campbell v. Assurance Soc., 4 Bosw. 299. When the statute requires that something be done within a given time, it must be so done; and although the last day be Sunday, it must be embraced in the computation of the time. Ex parte Dodge, 7 Cow. 147; People v. Luther, 1 Wend. 42. This is not uniformly the rule applied when the time is less than a week. Anon., 2 Hill, 375. But however that may be, the situation in the present case was peculiar; and although the transaction of the redemption made by the defendant may not come within the acts prohibited by law to be performed on Sunday, there was a difficulty in the way of the exercise of that right by him on that day arising out of the statute, which provides that a redemption made by a creditor on or after the last day of the fifteen months must be made at the sheriff's office. Code, § 1455. And it cannot then lawfully be made elsewhere. Morss v. Purvis, 68 N. Y. 225. The sheriff is required himself, or by his under-sheriff or deputy, to be in attendance at the sheriff's office and keep it open on that day, and each day thereafter on which redemption can be made. But the sheriff is not required to have his office open on Sunday. 2 R. S., p. 285, § 55. The defendant therefore had not the right to make the redemption on Sunday. The purpose of the statute was that a judgment-creditor should have such right, and for its accomplishment, twenty-four hours after the making of the next previous redemption. If the statute should be given the construction and effect to include Sunday within that time when the last day of the fifteen months falls on Sunday, the redemption made on the Saturday before might operate to defeat the right of redemption by another creditor, however diligent he might be in his attempt to exercise it. The effect would be the same if the last day of the fifteen mouths was Saturday, and a redemption made on that day. It might be made at the last moment of Saturday, and the twenty-four hours would expire with Sunday. In practical effect, the lawful denial of the exercise of the right of redemption on Sunday would be no different than the inhibition of it by law on that day. This statute is entitled to a construction which will permit its purpose to be effectuated. The legislative intent evidently was to permit, within the time prescribed, any creditor entitled to do it to effect redemption by way of protection of his right as such, and that he should have twenty-four hours for that purpose. It would therefore seem that to carry out such intention when Sunday intervened, it must be deemed dies non, within the contemplation of the statute; and the statutes before referred to may be treated as in pari materia, and taken to provide for redemption within twenty-four hours of the day or days in which the sheriff is required to be in attendance at his office, to enable the creditor to exercise his right in that respect. Any other view might deny to the statute the apparent purpose of its makers. Second Division, April 15, 1890. Porter v. Pierce. Opin ion by Bradley, J. Affirming 43 Hun, 11. INSURANCE-LIFE-INTEMPERANCE-INSANITY-SUICIDE. (1) In answer to questions in the application, which were made warranties by the certificate, the insured stated that he was temperate and correct in his habits, and promised to remain temperate. To defeat a recovery on the ground that the representation was untrue, and the promise was not fulfilled, the company introduced evidence to show that the insured drank frequently for a few days prior and subsequent to the date of the policy, and that during that time he had been in the company of lewd women, and had been drunk. With the exception of proof of intoxication on one occasion, the evidence introduced to establish that his habits were intemperate and incorrect was con fined to a period of about fifteen days preceding his death. On the other hand, witnesses who had known him a long time testified that he was temperate and of good habits, and evidence was given tending to show that he was not at the place where it was claimed he was intoxicated, and in company with a lewd woman. Held, that the evidence did not authorize the court to hold, as a matter of law, that he was not temperate, within the terms of the contract. (2) The certificate provided that the company was not liable for the payment of any claim when the member "has died in violation of the laws of the land." The insured shot himself eleven days after issuance of the certificate. To prove that the act was the result of an insane impulse, plaintiff showed that there was a strain of insanity in his family; that his great-grandfather hung himself while insane, and his grandmother's sister had been confined in an asylum. A letter from him to his wife was put in evidence, of which the following is an extract: "But this voice says, Die now.' Darling, don't give this revolver away until Clare is big enough to take care of it; then give it to him, and tell him its history. * *Oh, that voice is calling me. Now, wishing you all farewell, I am no more your unworthy husband, but almost a corpse." Two physicians testified that he was insane. The evidence on defeud. ant's part tended strongly to show that family difficulties, together with his misconduct, resulted in his determination to put an end to his troubles, and at the same time provide for his family at the expense of the company, and that the act was deliberate and voluntary. Held, that whether the act was the result of an insane impulse or voluntary was a question for the jury. Second Division, April 15, 1890. Meacham v. New York State Mutual Benefit Association. Opinion by Parker, J. Affirming 46 Hun, 363. * * * * INTEREST UNLIQUIDATED CLAIM DEMAND. Where a claim for services is unliquidated, and the right to recover any thing is contested, interest is not set running until a demand is made in the shape of an account, showing the balance claimed. April 22, 1890. De Carricarte v. Blanco. Opinion by Gray, J. Modify. ing 1 N. Y. Supp. 744. LANDLORD AND TENANT RENEWAL OF LEASE.Under a covenant in a lease that "the party of the second part shall have the privilege and option of a renewal of this lease upon giving" a certain notice, one who succeeds to the rights of the lessee, after his death, may compel a renewal. Second Division, April 15, 1890. Kolasky v. Michels. Opinion by Potter, J. Af firming 46 Hun, 677. MALICIOUS PROSECUTION-PROBABLE CAUSE-EVI. DENCE. In an action for malicious prosecution, it appeared that defendant intrusted rugs to plaintiff to be sold, leased or returned on demand. A dispute having arisen as to their account, it was agreed that defendant should receive in full settlement a certain sum of money and thirteen rugs. Before the last installment of the money was paid, defendant swore out a warrant for plaintiff's arrest for larceny of a rug; but it was not served until after he had tendered thirteen rugs, which were refused on the ground that they were not of the quality required by the settlement, as to which the parties differed. Held, that there was no probable cause. Second Division, April 15, 1890. Hazzard v. Flury. Opinion by Parker, J. IVE FIRE HYDRANT.-In an action against a city for the flowing of plaintiffs' works with water from a fire bydrant, plaintiff's proved that the hydrant was found detached from the main water-pipe, the extent of the damage by water, which by reason thereof flowed over and upon their property, and rested. In defendant's behalf, several witnesses who took part in the erection of the hydrant testified that it had only been constructed seven months; that the method of doing the work was the best known to them; that the materials used were new and good, and the work skillfully done. Plaintiff did not offer any evidence in rebuttal. Held, that a nousuit should have been granted. Second Division, April 15, 1890. Jenney v. City of Brooklyn. Opinion by Parker, J. Reversing 44 Hun, 371, Mem. OFFER OF EVIDENCE - POWER OF REFEREE. It is within the discretion of a referee to strike out an offer of evidence, and require the party to put his questions to the witnesses, and have them ruled upon. Second Division, April 15, 1890. Lehigh Stove & Manufacturing Co. v. Colby. Opinion by Haight, J. Affirming 46 Hun, 681. ---- STATUTE OF FRAUDS.~(1) In an action for the price of an unpat ented device, plaintiff testified that defendant agreed to pay for the device sold if he made any use of it, and that he had taken out a patent for a combination including the device. Defendant testified that he was to pay nothing if he did not use it. Held, that a nonsuit was improper, as there was a question for the jury. (2) An invention may be sold by parol, as Revised Statutes of United States, section 4898, making "every pateut, or any interest therein," assignable by instrument in writing, applies only to patents. Burr v. De La Vergne, 102 N. Y. 415; Walk. Pat., § 274. (3) An invention is not valueless, so as to avoid a contract for its sale, where it does not appear that it is not patentable, and the purchaser, though testifying, that in its present condition it is impracticable, says that "the idea is there," and might be used, with some alteration. (4) There is sufficient acceptance of an unpatented invention to take its sale out of the statute of frauds where the purchaser accepts and retains a model for over a year, and applies for and obtains a patent for a combination including the device in question. The act of acceptance is something over and beyond the agreement of which it is a part performance, and which it assumes as already existing. It is a fact to be proven as are other facts. Acts of ownership constitute a strong evidence of acceptance. Reed. St. Frauds, § 261. So too does a long and unreasonable delay in returning goods. Morton v. Gibbett, 15 Q. B. Div. 428; Bushel v. Wheeler, id. 442; Treadwell v. Reynolds, 39 Conn. 31. If a vendee does any act with reference to the thing sold, of wrong if not the owner, or of right if he is the owner, it is evidence that he has accepted it. Parker v. Wallis, 5 El. & Bl. 21. The rule may be broadly stated that any act from which it may be inferred that the buyer has taken possession as owner presents a question for the jury to determine whether the act was done with intent to accept. Baines v. Jevon, 7 Car. & P. 289; Pinkham v. Mattox, 53 N. H. 605; Gray v. Davis, 10 N. Y. 285; Browne St. Frauds, § 321. Second Division, April 15, 1890. Jones v. Reynolds. Opinion by Parker, J. Reversing 44 Hun, 626. SPECIFIC PERFORMANCE-MARKETABLE TITLE--PRESUMPTION OF DEATH.-Specific performance of a contract to purchase real estate, in which it is stipulated that the title shall be " first-class," will not be enforced where it appears that there is an outstanding right in one who left his home twenty-four years before, being at the time twenty-three years old, unmarried, in feeble health and very dissipated, and who was seen shortly after in destitute circumstances, and never heard from again, and where it further appears that no opposing title has ripened by adverse possession. It is an established principle of law that every purchaser of real estate is entitled to a marketable title, free from incumbrances and defects, unless he expressly stipulates to accept a defective title. Burwell v. Jackson, 9 N. Y. 535; Delavan v. Duncan, 49 id. 485. A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some fact appearing in the course of its deduction, and the doubt must be such as affects the value of the land, or will interfere with its sale. A purchaser is not to be compelled to take property the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and if he wishes to sell it, be reasonably sure that no flaw or doubt will arise to disturb its market value. Commissioners v. Armstrong, 45 N. Y. 234; Shriver v. Shriver, 86 id. 575, and cases cited; Hellreigel v. Manning, 97 id. 56; Fleming v. Burnham, 100 id. 1; Ferry v. Sampson, 112 id. 415; Moore v. Williams, 115 id. 586; Swayne v. Lyon, 67 Penn. St. 436; Dobbs v. Norcross, 24 N. J. Eq. 327. "If a title depends upon a fact which is not capable of satisfactory proof, a purchaser cannot be compelled to take it." Shriver v. Shriver, supra. Second Division, April 15, 1890. Vought v. Williams. Opinion by Brown, J. Affirming 46 Hun, 638. TRIAL-EVIDENCE-INSTRUCTION TO DISREGARD.Where objectionable testimony is withdrawn from the consideration of the jury by the trial judge, who tells them that it is not before them as evidence at all, the error will be deemed cured, and the exception to its admission unavailing. Gall v. Gall, 114 N. Y. 109. It has been established by well-considered authority in this State, that when evidence is admitted upon a trial by jury, either without an exception, or properly under objection, which for any reason should not be considered by the jury, it is not error for the court to refuse to strike it out. The remedy of the party is to ask the court to instruct the jury to disregard it. Marks v. King, 64 N. Y. 628; Platner v. Platner, 78 id. 90. It is Insisted that another rule applies when objection is timely made to irrelevant evidence. If that were so, then in the case before us, the counsel could be relieved from the effect of his error in permitting the first answer to be read in evidence without objection, by a request to the court that the jury be directed to disregard it, and at the same time retain his exception to the subsequently admitted testimony of like character. Thus his own error would prove of advantage to him. The effect of the improper evidence would be destroyed by the required instruction, while a valid exception as to the admission of subsequent and similar testimony would remain, leaving the court powerless to relieve the parties from the effect of its mistake. Fortunately trial courts are not hampered by such inconsistent and impracticable rules. The Supreme Court of the United States, in Pennsylvania Co. v. Roy, 102 U. S. 459, has held that where the court instructs the jury to disregard testimony, and there is other evidence to support the verdict, it will be presumed that the instructions were obeyed, and the error in its admission cured. Our attention has not been called to any decision of this court which we regard as necessarily in conflict with such conclusion. In Erben v. Lorillard, 19 N. Y. 299, it appears from the opinion of Judge Denio that the improper evidence related to the measure of damages, and after its admission the trial proceeded on the assumption that it established a rule which controlled the conduct of the trial; so that when the court instructed the jury to disregard the improper testimony the case was without other evidence warranting the verdict given. A reversal was therefore required. Furst v. Railroad Co., 72 N. Y. 542, does not present the question. Against the objection of defendant improper evidence was admitted. Plaintiff's counsel, discovering the error, proposed to have it stricken out, and the proposition was declined. The trial court did not attempt to correct the error it had made, and Judge Rapallo, in delivering the opinion of the court, said: "The court made no ruling and gave no instruction to the jury on the subject." Second Division, April 15, 1890. Holmes v. Moffat. Opinion by Parker, J. Affirming 44 Hun, 630. THIRTEENTH ANNUAL REPORT OF THE NEW YORK STATE BAR ASSOCIATION. L. B. Proctor, Esq., Secretary of the New York State Bar Association: DEAR SIR: I have the honor to acknowledge the receipt of a copy of the proceedings of the thirteenth annual meeting of the New York State Bar Association, for which please accept my thanks. The volume contains much useful and entertaining matter, rendering it a valuable addition to my library. The usually dry detail of reports of that kind is relieved by productions interesting to laymen as well as lawyers. While Col. Ingersoll's admirable address is somewhat out of the range of subjects usually considered in those places where lawyers and judges do most congregate, it is a scholarly, thoughtful production, sufficiently germane to the occasion and to the legal profession, and it has largely tended to popularize the association. It was a saying of Edmund Burke that all professions, particularly the legal profession, too closely followed, narrow the mind, making legal martinets instead of broad and liberal-minded lawyers. It would do all lawyers good to occasionally listen to addresses that relieve the abstruse learning and sharp reasoning of the bar. In the present report of the association however the subtleties, learning and breadth of the law is found in Mr. Moak's paper, Liability Between Relatives for Services, Support and on Alleged Implied Contracts," and in the prize essay of Mr. Hawkins, while the address of Mr. Dillon, “A Century of American Law," is an elegant and useful contribution to legal literature. It is an unequalled review of the progress of Americau jurisprudence. The question, "What Shall be Done to Relieve our Courts?" is ingeniously and practically answered in Mr. Fiero's paper. I might refer to many other interesting subjects contained in the report, but I do not intend this as a review or a critique. The proceedings of the second day's meeting contain discussions on codification of great interest. The Hon. David Dudley Field, the eloquent and learned champion of codification, sustained himself with admirable ability and dignity; while Mr. Moak, the learned and critical opponent of codification, presented his arguments against it with that force and effect that characterize all his efforts. Permit me to express my admiration of the typographical perfection which characterizes the volume. I am quite certain that the members of the association duly appreciate what Messrs. Weed, Parsons & Co. Judgment of Special and General Terms reversed, new trial granted, costs to abide event-Philander W. Forbes, respondent, v. Rome, Watertown and Ogdens burgh Railroad Company, appellant.-Judgment reversed, new trial granted, costs to abide event-Wil liam H. Plyer, appellant, v. German Insurance Com pany, of New York, respondent.-Motion for cita. tion granted-George W. Lawton and others, appellants, v. William N. Steele, respondent.-Motion for substitution granted-Samuel N. Bacon, respondent, v. United States Mutual Accident Association of New York, appellant.-Motion for reargument denied with $10 costs-Harriet C. Beal, appellant, v. New York Central and Hudson River Railroad Company, respondent.Motion to dismiss granted with costsWilliam Cromwell and others, respondents, v. George L. Burr, appellant.-Motion for reargument and amendment of remittitur on behalf of plaintiff denied with $10 costs; motion to amend remittitur on part of defendant granted, and remittitur amended so as to allow Mrs. Withington costs in General Term and this court-Spencer C. Platt and another, respondents, v. Maria P. Withington and others, appellants.-Motion to dismiss appeal denied with $10 costs-George W. Driscoll, receiver, appellant, v. William Downe and others, respondents. SECOND DIVISION. Motion for reargument denied with $10 costs-William A. Parke and another, appellants, v. FrancoAmerican Trading Company, limited, respondent.— Judgment reversed, new trial granted, costs to abide event-William H. Dannot and another, respondents, v. Norman F. Fuller, appellant.-Judgment reversed, new trial granted, costs to abide event-First National Bank of Sing Sing, appellant, v. Thomas H. Chalmers and others. IN NOTES. N his brief in Matter of N. Y., etc., R. Co., 88 N. Y. 279, Mr. J. McGuire says: "It is of no moment what this paper filed in the secretary of State's office is called. Whether Amended Articles, Tale of a Tub, or the New Version of the Testament, the question is, what is its legal effect?" William A. Beach was a capital lawyer-he used to sow his Mss. thick with capital letters. An amusing example is found in his brief in Van Schoonhoven v. Curley, 86 N. Y. 187, where he wrote of a note transferred after maturity: "They take subject to all defences of the Maker against it." He religiously wrote whisky with a capital W in the same brief. Mr. Charles E. Miller, in his brief in Matter of Blod gett, 91 N. Y. 117, playfully remarked: "It is impossi ble to state what ideas may not be brought to a man's mind by any object. The sign, Fishing Tackle for Sale' will recall to one man pleasant days by the seaside; to another camping by some Adirondack lake; but it could not be said that the title of an act ‘relating to the sale of fishing tackle' would justify a provision changing the local government of Hamilton county." Mr. Miller is evidently an angler. The Albany Law Journal. ALBANY, JUNE 21, 1890. CURRENT TOPICS. IN discussing the writ of habeas corpus which he We have received an interesting "Report of the Committee of the Council of Judges on hearing Cases in Camerâ," signed by Lord Chief Justice Coleridge, and Cotton, Hannen, Kay and Charles, JJ., in which the judges came to the following conclusions: (1) As to the administration of the criminal law, there is no direct authority for hearing a case in private, however disgusting the details of the case, and however desirable, on the ground of public morals, it might be so to hear it. The public hearing of all criminal trials is an established rule of law. But at the same time it is the old and inveterate practice of the courts to exclude women and children from the hearing of cases concerned with indecent or unnatural crimes. (2) It is well established that without consent of parties cases can be heard in private in the following matters: in lunacy by the lord chancellor and other judges having jurisdiction in lunacy; by the Court of Chancery in all cases relating to wards; and in the High Court in cases when to hear them in public would destroy the subject-matter or object of the action, such as proceedings to restrain the disclosure of a trade secret, or the revelation by a solicitor of matters known to him or communicated to him in his character of solicitor. (3) By the act of Parliament, which creates the Divorce Court, the practice of the old Ecclesiastical Courts was to be continued in relation to the cases which were by the act transferred from those courts to the court which the act created. But as the Ecclesiastical Courts had no power to divorce a vincula matrimonii, a power which was given under certain conditions to the new Divorce Court, the practice under the new jurisdiction remained as at common law; and such cases were for some time always heard in public, though suits for judicial separation and suits for nullity of marriage were for some time, when the court thought fit, heard in private. Sir Cresswell Cresswell after a while heard all suits of every kind in public, and this practice was at first followed by Lord Penzance. Some modifications of Sir Cresswell Cresswell's practice were made by Lord Penzance; but since 1875 the Divorce Court has uniformly heard in private such cases, or such parts of cases, as in the view of the court it would be contrà bonos mores to hear in public. (4) There is no case reported nor heard of in which, where a civil issue is being tried with a jury, the court has been cleared; but it has been not unusual to desire women and children to withdraw during the trial of indecent civil cases. (5) There is very little authority to be found as to the hearing of cases in private by judges with consent of parties. (6) The trial of a case in public, whether criminal or civil, must often lead to the making of statements by witnesses and counsel at once painful and injurious to persons not parties to the inquiry, and who have no means of defending themselves against the conse had granted in Kemmler's case, Judge Wallace said: "It was allowed because there seemed to be a question whether the sentence under which Kemmler was about to be put to death did not offend the fourteenth amendment of the Federal Constitution. This was a question which could only be finally decided authoritatively by the Supreme Court of the United States. If it had seemed to be a question so frivolous as not to be worthy of serious discussion the writ should not have been allowed; but unless it was thus frivolous it was not for a judge of this court to refuse it, under the particular circumstances, even to the most depraved criminal, and thereby deny him the chance which the statutes of Congress had given him to challenge the validity of his sentence. The writ of habeas corpus is of the highest right; the application for it is addressed, not to the discretion of the judge, but peremptorily; it cannot be denied because the application has been unreasonably delayed, or because the most serious inconvenience may result from its allowance; and it is wholly immaterial whether the applicant is held in restraint by the wanton act of an individual or by the highest judicial authority." "If the writ had been refused, an appeal from the decision refusing to allow it would have been unavailing to Kemmler, because he would have been dead. It was not improbable however that some other convicted murderer under sentence in this State might apply for a similar writ; and in that case, although the writ should be refused, he could appeal as a matter of absolute right, to the Supreme Court, and as soon as this was done all proceedings against him in any State court or by any State authority' would be deemed null and void' as to any matter in progress of determination under the appeal. U. S. R. S., §§ 763, 764, 766; 23 Stat. at Large, p. 437. If that had happened the authorities of the State would have been placed in a very awkward dilemma, because the appeal could not be brought to hearing before the October term of the United States Supreme Court." As we have said before, the judge's action was perfectly proper in view of the fact that unless the writ were made returnable in term no appeal would lie. We should have no quarrel with Kemmler's counsel for urging his rights to the last extremity. But he really has no counsel, and all these dilatory devices are notoriously resorted to in the business interest of a great electrical manufacturing company, and this conduct is disgraceful.quences of such statements, or of questioning the So the Washington Law Reporter would better dry its maudlin tears for "poor Kemmler" unless it also is hired to shed them by the sensitive electricians. statements themselves. The hardship is no doubt in some cases very cruel; but we can find no authority to show that the possible, or even probable, injury to the characters of persons not parties to the |