free from all constitutional difficulty. Commonwealth v. Williams, 6 Gray 16; Phelps v. Racey, 60 N. Y. 10; Railroad v. Husen, 95 Ill. 465. In the case at bar it being agreed that the woodcock, which defendants had in their possession, offered for sale and sold had been lawfully taken, or killed, in another State, the defendants were wrongfully convicted." In Magner v. People, 97 Ill. 320, decided by the Supreme Court of Illinois, in 1881, the Illinois statute was held to include game unlawfully killed in another State. "It is argued," said the court, "this cannot be the correct construction because such a prohibition does not tend to protect the game of this State. To this there seems to be two answers. First, the language is clear and free of ambiguity and in such case there is no room for construction. The language must be held to mean just what it says. Second, it cannot be said to be within judicial cognizance; that such a prohibition does not tend to protect the game of this State. It being conceded, as it tacitly is, by the argument that permitting the entrapping, netting, ensnaring, &c., of wild fowl, birds, &c., during certain seasons of the year tends to the protection of wild fowls, birds, &c., we think it obvious that the prohibition of all possession and sales of such wild fowls, or birds, during the prohibited season would tend to their protection in excluding the opportunity for the evasion of such laws by clandestinely taking them beyond the State, and afterwards bringing them into the State for sale, or by other subterfuges and evasions. It is quite true that the mere act of allowing a quail, netted in Kansas, to be sold here does not injure or in any wise affect the game here -but a law which renders all sales and all possession unlawful will more certainly prevent any possession or any sale of the game within the State, than will a law allowing possession and sales here of the game taken it other States."

In State v. Randolph, 3 Cent. L. J. 187, the defendant was convicted under a Missouri statute as follows: "It shall be unlawful in any place in this State to catch, kill, injure, or pursue, with such intent, any prairie chicken between the 1st day of February and the 15th day of August. It shall be unlawful for any person to purchase, have in possession, or expose for sale any of the birds or game mentioned in the preceding section, during the season when the catching or injuring the same is prohibited." The evidence was that three prairie chickens were sold by the defendant during July and that in said month several of such birds imported from Kansas had been sold to defen. dant. On appeal the conviction was affirmed. "We think," said Bakewell, J., "that there was evidence enough to support a conviction. It was urged by defendant that inasmuch as it appears that these prairie chickens were imported from Kansas, there can be no conviction. But the act in question makes it a penal offense to have prairie chickens in one's possession from 1st February to 15th August in Missouri, no matter where they were caught.

The game

laws would be migatory if, during the prohibited season, game could be imported from the neighboring States. It would be impossible to show, in most instances, where the game was caught."

In Whitehead v. Smithers, 2 C. P. Div. 553, an English statute prohibiting the killing, or having in possession, of certain wild fowl during certain seasons of the year was held to include game imported from Holland. Lord Coleridge, C. J., saying: "It is said that it would be a strong thing (for the legislature of the United Kingdom to interfere with the rights of foreigners to kill birds. But it may well be that the true and only mode of protecting British wild fow] from indiscriminate slaughter as well as of protecting other British interests is by interfering indirectly with

the proceedings of foreign persons. The object is to prevent British wild fowl from being improperly killed and sold under pretense of their being imported from abroad."

Thus it will be seen that on this question the authorities are much in conflict. In Com. v. Hall, supra, Gray, C, J., undertook to distinguish the cases of Whitehead v. Smithers and Phelps v. Racey, from that before him. "The statute of 39 & 40 Vic., ch. 29 & 2," said he, "under which it was held in Whitehead v. Smithers, 2 C. P. Div. 553, that a person having in his possession a plover killed abroad might be convicted, differed from the statute before us in explicity enacting that any one who should at certain seasons kill, wound, or take any wild fowl, or have in his control or possession, any wild fowl recently killed, wounded, or taken," should be subject to a penalty, and in omitting to re-enact the clause of a previous statute which allowed a defendant to show that the bird had been bought or received before the prohibited time, or from some person residing out of the realm. And the statute of New York of 1871, chap. 721, under which the defendant was convicted in Phelps v. Racey, for having in his possession quail killed in another State, enacted that no person should kill, or expose for sale, or have in his possession 'after the same has been killed' any quail between the times mentioned, and defined the cases (of which that before the court was not one) in which the defendant might protect himself by prov ing that the bird had been killed before the prohibited time or in a State in which the killing was not prohibited."

That the defendant had invented a'process for keeping dead game fresh from one lawful period to another is no defence. Phelps v. Racey, 60 N. Y. 10.

Under the English statute of Geo. III. a person is not liable to the penalties prescribed, who, in the prohibited period, has game in his possession which was killed before. Simpson v. Irwin, 3 B. & Ad. So under the statute 1 & 2 Wm. IV., a person is not liable to the penalty for making a contract in the close season for the delivery of game at any time. Porriett v. Baker, 10 Ex. 759; and see the English cases construing the game laws of that country, of Brown v. Turner, 13 C. B. N. S. 150; Hall v. Knox, 4 B. & S. 515; Evans v. Botterill, B. & S. 787; Loome v. Bailey, 3 E. & E. 444.

In Phelps v. Racey, 60 N. Y. 10, the New York statute was declared constitutional, as to game acquired after its passage; as to game killed in an open season, and as to game brought from a State in which there existed no such prohibition. Such a statute is not in conflict with the constitutional provision that no person shall be deprived of property without due process of law. Phelps v. Racey, 60 N. Y. 10.

Nor are such statutes in conflict with the power given to Congress to regulate commerce between the States. Phelps v. Racey, 60 N. Y. 10; State v. Randolph, 3 Cent. L. J. 187. In the last case it was said: "The State of Missouri has as much right to preserve its game as it has to preserve the health of its citizens, and may prohibit the exhibiting for sale within the State of provisions out of season without any violation of the constitution of the United States. So far as we know this right has never been disputed, and its exercise by the absolute prohibition of the having in possession or sale of game within the State lands, during certain periods of the year, is no more an illegal at tempt to regulate commerce between the States than would be a city ordinance against selling oysters in July."

But a statute prohibiting the transportation from one State to another of game lawfully killed has been held in conflict with the Federal Constitution as to commerce between the States. States v. Saunders, 19 Kas.

127. Here, also, this and statutes of the kind mentioned above are distinguished. "A law which prohibits the catching and killing of prairie chickens may be valid although it may indirectly prevent the transportation of such chickens from the State to any other State; but a law which allows prairie chickens to be caught and killed, and thereby to become the subject of traffic and commerce, and, at the same time, directly prohibits their transportation from the State to any other State is unconstitutional and void."

INDICTMENT FOR PUBLISHING OBSCENE

MATTER.

COMMONWEALTH v. WRIGHT.*

Supreme Judicial Court of Massachusetts, May, 1885.

CRIMINAL PROCEDURE. [Indictment.] Sufficiency of, for Publishing Obscene Literature.-An indictment for publishing obscene literature must refer to the matter with sufficient particularity to identify the publication, though it need not set it out at length.

Edgar J. Sherman, Atty.-Gen., for the Commonwealth; J. L. Eldridge and W. B. Orcutt, for the defendant.

DEVENS, J., delivered the opinion of the court: This is an indictment under Pub. St. c. 207, § 15, for publishing and distributing a printed paper containing obscene, indecent, and impure language. In both counts it is alleged to be a paper so obsence in its character that it cannot with decency be spread upon the records of the court. No general description of it by title or contents is given in the indictment, nor are any other means afforded thereby which would distinguish it from any other paper of its class. Before the trial the defendant moved to quash the indictment, among other reasons, because it afforded no proper description of the alleged obscene paper. It has heretofore been held that an obscene publication need not be spread at length upon the records of the court by a recital thereof in extenso in the indictment. This would require that permanency and notoriety would be given to indecent publications in order that they might be punished, which would be highly objectionable Com. v. Holmes, 17 Mass. 336; Com. v. Tarbox, 1 Cush. 66. But, while the indecent publication need not be set forth at length, and it is sufficient in the indictment to allege, as an excuse for not doing so, its scandalous and obscene character, it must be identified by some general description which shall show what the paper is which the defendant is charged with publishing. Unless this is done, it is obvious that the defendant is not informed with such precision as the law requires of the offence charged against him, and may be entirely deceived in regard to

*S. C., 1 N. E. Repr. 411.

the paper to which the obscene character is attributed. Nor would the indictment afford the protection to the defendant to which he is entitled should he be subsequently indicted for the same offense.

In Com. v. Holmes, ubi supra, the book which the defendant was charge with publishing was identified by its title. In Com. v. Tarbox, ubi supra, it is said that, where a publication is so obscene that it should not appear in the record, "the statement of the contents may be omitted altogether, and a description thereof substituted," the reason for the omission being made to appear by proper averments; but the remark implies that there must be an appropriate description of the publication. It is not easy to conceive a case in which the means would not exist, having full regard to decency and propriety, of describing generally, and thus identifying, the paper which the defendant is charged with publishing. The indictment in the case at bar did not seek to do so in any manner; and yet the means of so doing were ample, so far as the publication offered in evidence was concerned. It was printed upon the back of the business card of the defendant, which contained itself no indecency. It was headed, "Wanted by a Wet Nurse," and purported to recite a conversation between a young lady and the editor of a local paper., Other modes of describing the paper might also be readily suggested, some of which were availed of. As the indictment does not set forth the offense in the manner required by law, the exceptions are sustained, and the indictment quashed.

NOTE. It is a general rule of pleading in criminal cases, that where a charge is brought against a person, arising out of the execution or publication of a written instrument, the instrument itself must be set out in the indictment. And where it is necessary that the entire instrument should be set out, the omission of a word is fatal. There are, however, certain exceptions to the rule requiring the whole instrument to be set out. The more important ones are two, viz:

First.-Where the instrument upon which the of fence has been committed has been lost or destroyed, or is not accessible to the prosecution.

Second.-Where the instrument itself is so obscene, indecent or immoral that it cannot be properly copied in the indictment.

It will not be necessary to enter into a discussion of any but the last. While there are several early Enlish cases upon the question of whether the publication of an obscene book could be punished at common law, in none of them was the question raised as to how

1 State v. Stephens, Wright (Ohio),73; Com v. Gillespie, 7 Serg. & R., 469; Com. v. Stow, 1 Mass. 54; Com. v. Bailey, Id. 62; Com. v. Sweeney, 10 Serg. & R. 173; Com. v. Wright, 1 Cush. 46; Com. v. Tarbox, Id. 66; Com. v. Houghton, 8 Mass. 107; King v. Beere, 12 Mod. 219; State v. Parker, D. Chip. Vt. 298. See also Com. v. Stevens, 1 Mass. 203, and as to translation from another language Zenobio v. Axtell, 6 T. R. 62.

2 State v. Street, Tay. (N. C.), 158; U. S. v. Hinman, 1 Bald. 292; U. S. v. Britton, 2 Mason, 464. See also Com. v. Gillespie, supra.

far the obscene matter should be set forth in the information. In the case of Rex. v. Curl 3 defendant was indicted for selling an obscene book portions of which were set out in the information, but nothing was said about whether they could have properly been left out or not. This seems to have been the first case where an obscene libel was punished by the temporal courts. The case of Rex. v. Bradlaugh, et al.,4 decided so late as 1878, appears to have been the first English case where the question met with a thorough consideration by the court. There the defendants were charged with printing a certain obscene book called, etc., and the court, after citing several of the leading American cases with approval, held the indictment insufficient. Bramwell, L. J., thought that while the reason that the records ought to be kept pure was a good one, there was still another one, that to put a libel of several hundred pages upon the record would be manifestly inconvenient.

Mr. Bishop in his work on Criminal Procedure 5 lays down the following rule as a guide as to how far an obscene libel may be set forth in the indictment: "Whenever it would create extreme inconvenience, or prejudice good morals, or operate otherwise counter to the general policy of the law, as well as when it would be physically impossible to introduce into the indictment the usual allegation, the omission of the allegation is excused on the ground of necessity; but the necessity should appear on the face of the indictment."

In all the cases which bear upon the subject the reasons assigned for not requiring the obscene matter to be set forth in the indictment, have been either that it would be against public morals to republish the obscene instrument by placing the same on the public records, or because of the inconvenience attending the copying of the print or picture. It is said if the grand jury declare of an indecent libel that the same would be offensive to the court here, and improper to be placed upon the records thereof, the fact that the libel is not set forth will be sufficiently excused, and the same rule also applies to an obscene picture.7

Where the libel is not set out, it is necessary to assign some reason why this is not done.8 In that case the description would have been sufficient had a reason been assigned for not setting out the whole libel. In McNair v.People, the indictment contained two counts, the first alleging that defendant printed a certain obscene pamphlet; the second that defendant had in his possession a pamphlet purporting to give the evidence taken in certain charges: the court held the indictment insufficient, inasmuch as defendant was not apprised sufficiently of the crime with which he was charged. In Bates v. United States,10 the indictment was for sending by mail unmailable matter, under § 3893 U. S. Rev. St. The objection was made that the indictment, instead of merely setting forth the title to the publication, should have also set forth what was contained in the book. Drummond, J., held the objection not well taken, and based his conclusion upon substantially the foregoing grounds. The case of United States v.

32 Str. 788.

43 Q. B. D., 607.

5 § 497.

61 Whar. Cr. L., § 311; Com. v. Holmes, 11 Mass. 336; Com. v. Sharpless, 2 Serg. & R. 91; People v. Girardin, 1 Man. (Mich.) 90; State v. Brown, 1 Williams (Vt.) 619; Com. v. Tarbox, 1 Cush. 66; see State v. Hanson, 23 Tex 234.

7 Com. v. Sharpless, supra. See also Knowles v. State, 3 Day (Conn.) 103.

8 Com. v. Tarbox, supra.

9 89 Ill. 441.

Kaltmyer, arose upon a letter, and the indictment was quashed. McCrary, J., says: "It is a very brief letter, all written upon one side of a small sheet of note paper. It contains no language any

more indecent than the indictment itself." Where the indictment was in the following language: 'Did utter, write and publish a certain obscene, lewd and indecent paper and writing, which said paper was enclosed in a sealed envelope and addressed, etc., it was held the description was insufficient, and the court further said that while it is unnecessary to set forth the criminal matter word for word, it is necessary to give a general description of the writing-which was not done.12 In State v. Brown,13 the indictment was for selling an obscene book or paper. The court held if the publication be such as to offend public decency, and if alleged to be a publication within the general terms in which the offense is defined by the statute, it is sufficient.

In Fuller v. People,14 and State v. Pennington,15 the indictment charged the defendants with publicly exhibiting obscene pictures, and in both cases the indictments were sustained. But in Texas the charge was that defendant "published an indecent and obscene newspaper, called 'John Donkey,' manifestly designed to corrupt the morals of the youth of said county." Held, the indictment did not identify the offense.16

The indictment should so specify the offense that a defendant who has been once indicted may plead the former indictment in bar, so that the court may decide whether the plea is well taken. The question of the obscenity of the libel is for the court, and not for the jury.17 ADDISON G. MCKEAN.

Detroit, Mich.

1. CORPORATION. [Forfeiture of Franchise]. Statutory Remedy Supercedes that of Common Law. -The mode of process, by which the corporate franchises of an incorporated trust company may be adjudged forfeited, is by writ of scire facias, under the statute-Rev. Laws, Vt. chap. 72-prosecuted in the name of the State, and not by complaint for a writ of quo warranto, prosecuted in the name of a private person, under chapter 74, Rev. Laws. Vt. The statutory remedy by implication supersedes the common law. [In the opinion of the court by Rowell, J., it is said: "The words of the statute are, 'the mode of process shall be by writ of scire facias.' This language is imperative in form and ordinary signification, and ought to be

construed as obligatory if such be the intention of the framers of the act as collected from every part of it. It is true, the language is affirmative, and does not necessarily take away the common-law remedy of quo warranto; but it will have that effect if the apparent intention of the act is that the two rights shall not exist together, as we think it is. It is held that when an act that was before an offense at common law only is made an offense by statute, the common law on the subject is superseded by implication, the same as a statute is impliedly repealed by a subsequent statute that revises its whole subjectmatter. Commonwealth v. Cooley, 10 Pick. 37; State v. Boogher, 71 Mo. 631. In Commonwealth v. Garrigues, 28 Penn. St. 9, it was held that a statute, providing that the returns of all municipal elections should be subject to the inquiry and determination of the court of common pleas of the county of Philadelphia upon the complaint of fifteen or more of the qualified voters of the proper ward or division, the court, in judging in the premises, to proceed upon the merits, and determine finally concerning the matter, was binding on the State, although not named therein, and by necessary implication, excluded the remedy of quo warranto. § 9 of the Banking Copartnership Act-7 Geo. IV, chap. 46-provides that all actions, suits, etc., to be commenced or instituted by any persons against such copartnership, 'shall and lawfully may,' be commenced and prosecuted against one or more of the public officers for the time being of the copartnership as the nominal defendant for and on behalf of the company. The remedy thus given is not in terms expressed to be a substitute for the common-law right of action; but from the nature of the case it was held in Steward v. Greaves,10 M. & W. 711, that this must have been what the legislature intended. The evil to be guarded against was, the inconvenience to which creditors would be put if they were driven to bring actions against parties as numerous as those of whom joint-stock banks might and probably would consist. The remedy provided was, the naming of a person who, for the purposes of litigation, should represent the company; and the anomalies that would be produced if this right were to co-exist with the previous common-law right of action were so great as to warrant the court in holding that that right must have been intended to be taken away altogether. Equally strong are the grounds for holding the remedy provided by the Forfeiture of Grants Act to be exclusive. Franchises are special privileges conferred by government upon individuals, and which do not belong to the citizens of the State or country generally of common right. The abuse of a franchise is a public rather than a private injury. Hence it follows, that proceedings having for their object the recovery of a forfeited franchise to the State ought to be instituted and carried on by a public prosecutor or other authorized representative of the State, and not be left to the control of private parties who have no interest but their own to subserve. Such cases are clearly distinguishable from cases involving only the administration of corporate functions, and do not go to the life of the corporation itself."] Green v. St. Albans Trust Co., S. C. Vt.. Jan. 1885; 1 Eastern Repr. 660.

3.

corporation shall be impaired by losses or otherwise, the directors shall forthwith repair the same by assessment; and no dividends shall be made or declared upon the capital stock of said corporation until the same are actually earned and realized over and above all losses and expenses." It is held that this liability does not continue to rest on the stockholders after the corporation has passed into the hands of a receiver by reason of insolvency. The purpose of the statute was to prevent the continuance of business with an impaired capital. Dewey v. St. Albans Trust Co., S. C. Vt. Jan. 1885; 1 Eastern Repr. 658.

[Tolls.] When Right of a Corporation to Exact Tolls for Performing a Public Service Accrues under Its Charter.-Where a charter authorizes a corporation to make such improvements upon a stream as will facilitate the transportation of lumber down that stream, and, upon the completion and maintenance of which, to demand tolls, it must prove that the improvements made by it do thus facilitate the transportation of lumber before it can demand and recover the tolls. Swift River etc. Co. v. Staples, S. C. Maine, Jan. 8, 1885; 77 Me. 40 (adv. sheets).

4. EXEMPTIONS. [Partnership Property.]-Exemptions out of Partnership Assets not Allowed in Indiana.-The assignors, in a voluntary assignment for the benefit of creditors, under the Indiana statute, are not entitled to claim as exempt, a specific part or share of the partnership property, nor any interest therein. [In the opinion of the court by Howk, J., it is said: "It is settled by the decisions of this court, however, that partnership property or an interest therein cannot be claimed by a member of the firm, as exempt from sale on execution for a partnership debt. Love v. Blair, 72 Ind. 281; Smith v. Harris, 76 Ind. 104; State v. Emmons, 99 Ind. 452. The interest of a partner in partnership property is not an interest in the specific property, but an interest in what may remai of the partnership assets after the payment and discharge of all debts and liabilities of the firm to third persons and to each other, upon the close of the copartnership business. Donellan y. Hardy, 57 Ind. 393."] Ex parte Hopkins, S. C. Ind., Oct. 9, 1885; 1 Western Repr. 208.

5. JUDGMENTS-When do not Relate Back to First Day of Term.-Rule that judgments relate back to first day of term of court at which rendered, does not apply when case was in such condition that judgment could not have been rendered on the first day of the term. [In giving the opinion of the court on this point, Lacy, J., said: "The first assignment of error here is that the circuit court refused to instruct the jury that under the law of Virginia a judgment rendered during the term of a court relates back to the first day of the term, and has precedence of any trust deed made by the judgment debtor, after the commencement of the term and before the date of the judgment.' It is true that for some purposes our law regards the whole term of a court as one day, so that a judgment given at any time during a term relates back to the first day of the term, as if rendered then. This is not always so, however. The principle does not apply to a judgment rendered during a term in a case which was in such a condition that the judgment could not have been rendered on the first day of the term. While this will oftener, perhaps, occur in a court of equity than in a court of law, it may nevertheless and does happen in a

common law case, under circumstances that will readily suggest themselves. The judgment may be by confession during the term, in which case no suit had been instituted on the first day of the term. Or, as it did happen in this case, the judgment may be upon notices served or acknowledged after the commencement of the term, and after the execution of the trust-deed in question; and, moreover, by express agreement between the parties in the proceedings in question, the judgments were to be postponed to the trust deed, both judgments and trust-deed having in contemplation a common object, to subject the property of the principal debtor to the satisfaction of the debt to the relief, as far as it would go, of the securities on his official bond as sergeant. The instruction therefore had no application to this case, as disclosed by the evidence, and was properly refused, and we think the circuit court did not err in refusing the same. Mut. Assur. Soc. v. Standard, 4 Munf. 539; Coutts v. Walker, 2 Leigh, 258, 276; Withers v. Carter, 4 Gratt. 418; Jones v. Myrick, 8 Gratt. 179; 1 Lom. Dig., 2nd ed. top page 372, 373, 374 and note; V. C. 1873, ch. 182, § 6; Min. Inst., vol. 2, p. 271." Yates v. Robertson, Va. Ct. of App., May 7, 1885; 9 Va. L. J. 522.

6. LANDLORD AND TENANT. [Agreement to Repair.] -Non-Liability of Landlord not Having Means of Knowledge of Defect.-In an action by a tenant against a landlord for breach of an agreement to keep drains in repair the jury found that neither party knew of the defective condition of the drains before the damage occurred, and that the plaintiff had not, and the defendant had, the means of knowing. Held, affirming the judgment of Wills, J., that the defendant was not liable. [Brett, M. R., said: The terms of the agreement in the present case are substantially the same as those of the covenant in Makin v. Watkinson, 23 L. T. Rep. N. S. 592; L. Rep., 6 Ex. 25, and as those of the Act of Parliament in the London and Southwestern Railway Company v. Flower, 33 L. T. Rep. N. S. 687; 1 C. P. Div. 77, and therefore I am of opinion that we must give the agreement the same interpretation as was given in those cases. It is the case of an agreement drawn in the form of a common covenant in a lease, and the meaning of such a covenant was settled by a decision given nearly fifteen years ago; Makin v. Watkinson, ubi sup.; that decision has been followed in other cases, and no doubt many covenants in leases have been drawn on the faith of the interpretation placed on the covenant in that case. This being so, I think that, even if we disagreed with the view adopted in Makin v. Watkinson, we should still be bound to give the same interpretation to the agreement in this case; but in my opinion it is impossible to doubt that the reasons for the interpretation placed on the covenant in Makin v. Watkinson are unanswerable. We must look at the implication which the judges made in that case, and which will be found at the end of the judgment of Channell, B., where he says: 'We ought to import into the covenant the condition that he shall have notice of the want of repair before he can be called on under the covenant to make it good.' L. Rep., 6 Ex. at page 28. This shows that we must imply this condition as if it were written into the agreement, and if this is so the tenant must take care that the landlord has notice of the defective state of repair. I doubt whether, if the landlord had notice aliunde, he would be liable, but it is not necessary to decide this. If he were told by a neighbor

that the premises were out of repair it might happen that he would be unable to enter. Here the landlord, according to the finding of the jury, had the means of notice of the want of repair; but this does not help the plaintiff so as to enable her to treat the landlord as if he had had actual notice. It is clear that on such an agreement the landlord is not liable until he has had notice. Baggallay and Bowen, L.JJ. concurred. Hugall v. McLean, Eng. Ct. of App., May 1, 1885; 53 L. T. Rep. (N. S.) 94.

7. MINING LAW. [Trespass-Damages, Measure of.] Measure of Damages where one Miner Encroaches upon Another's Land and Gets His Minerals.-It is the duty of a person working a coal mine on his own land near to the boundary line to make surveys to prevent encroachments on the adjoining land, and to keep accurate account of the coal mine near the line, and, if he fails to do so, the evidence as to the quantity of coal taken will be construed most strongly against him, and the last evidence of bad faith on his part would make every intendment in favor of the inquired party. 2. But, if such person is shown to have acted fairly, and the trespasses proven to have been unintentional and inadvertent, the measure of damages in the value of the coal in situ before the trespass, and the incidental injury, if any, to the land by the taking or mode of taking. The weight of recent authority even in actions at law, when the trespass is inadvertent by one miner on the lands of another, is to limit the recovery to just compensation, and this rule is certainly not changed by bringing the suit in chancery. Coal Creek Mining etc. Co. v. Moses, S. C. Tenn., Knoxville, Oct. 31, 1885; Opinion by Cooper, J.

QUERIES AND ANSWERS.

[Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.]

QUERIES ANSWERED.

Query No. 19.-[21 Cent. L. J. 300.] A. is tried upon an information in Justice's Court in Missouri, found guilty and appeals. Neither the transcript nor record in Justice Court shows any arraignment, or that any plea has been entered. Is such a defect fatal? Should a motion to dismiss be sustained? Is a trial in Circuit Court in a criminal case an appeal from Justice Court, a trial de novo?

Answer: The defect was not fatal, and the motion to dismiss was properly denied. If the justice had jurisdiction of the offense, acquired jurisdiction of the person and had power to render the judgment he did, all of which is conceded by your questions, then all errors which he might have committed, were vacated with the judgment by the appeal. The circuit court hears the cause de novo; it does not sit as a court of appeal to review the errors of the justice. People v. Maguire, 26 Cal. 635; Turner v. Northcut, 9 Mo. 252.

Query 30.-[21 Cent. L. J. 394.] P. and wife conveyed by warranty deed to their daughters a tract of land. In the face of the deed is reserved to the wife and mother a life estate in all the land conveyed. Can either of the daughters compel partition of the land amongst the daughters during the life of their mother, under the Missouri statute. If not why?