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grievously wounds the mental feelings of the other, erally overwhelming. It is our opinion, not only or such as in any other manner endangers the life upon the authorities, but also as an independent of the other, or so utterly destroys the peace of proposition, that the conduct of Mrs. Carpenter mind of the other as to seriously impair the bodily toward her husband amounted to extreme cruelty health or endanger the life of the other, or such as within the meaning of the divorce statutes, and utterly destroys the legitimate ends and objects of therefore that Col. Carpenter is entitled to the dimatrimony, constitutes extreme cruelty' under the vorce prayed for in this action and granted to him statutes, although no physical or personal violence by the court below." may be inflicted or even threatened. Gibbs v. Gibbs, 18 Kans. 419; Bennett v. Bennett, 24 Mich. 482; Goodman v. Goodman, 26 id. 417; Palmer v. Palmer, COMMON WORDS AND PHRASES. 45 id. 151; Whitmore v. Whitmore, 49 id. 417; Ca13 Iowa, 266; Wheeler v.
— . ; Powelson v. Powelson22 Cal. 858, 361; Smith v. Smith, 8 Or. 100; Kennedy v. Ken- part of whose property was money in bank, benedy, 73 N. Y. 369; Latham v. Latham, 30 Gratt. queathed “one-half of the money of which I am 307; Black v. Black, 30 N. J. Eq. 215, 221; Cook v. possessed” to her sister, and the remainder to Cook, 3 Stockt. 195; Beyer v. Beyer, 50 Wis. 254; others. Held, that her whole personalty passed unMay v. May, 62 Penn. St. 206; Beebe v. Beebe, 10 der the term “money.” The court said: "I am Iowa, 133. None of the foregoing cases are pre- not only at liberty, but I am bound to give a liberal cisely like the present case, but many of them sus- interpretation to the words to avoid an intestacy, tain the principle above enunciated; and taken to- and for these reasons I feel compelled to hold that gether, they clearly show the tendency of modern the lady used the word money in this will in the thought upon this subject. The tendency of mod-popular sense as a description of all her personal ern thought is to elevate the marriage relation and estate, and I do not think that any of the cases place it upon a higher plane, and to consider it as a have laid down a rule which prevents that construcmental and spiritual relation, as well as a physical | tion. I do not forget that part of the personal esrelation. In the present case the conduct on the tate consists of leasehold and furniture property, part of the defendant below was not only such as which is not aptly described by the word 'money.' would tend to wound the feelings of the plaintiff But I am of opinion that I cannot exclude these, below, and to destroy his peace and happiness and because the choice seems to me to be between conto impair his bodily health, but it was also such as struing money' to mean 'cash at the bank'or 'perwould tend to put his life in danger. The legiti-sonal estate,' and on the whole I think the latter mate result of the conduct on the part of the de- the true construction. One of the cases I have fendant below in sending the anonymous letters to mentioned, Prichard v. Prichard (ubi sup.), is, I Col. Carpenter's clerk, Mr. J. N. Mitchell, and in think, an authority for this, so far as a decision on endeavoring in other ways to give currency to the one will can help in construing another. Leasecharges that a criminal intimacy existed between holds and furniture, and all the personal estate, it Col. Carpenter and the clerk's wife, would natur- was there held, passed by similar words. That case ally be to cause the clerk, if he believed the insinu- is at least an expression of opinion, in which I reations of criminal intimacy between Col. Carpenter spectfully concur, that there should be no absolute and his wife, to take the utmost vengeance upon technical meaning given to such a word as 'money Col. Carpenter; and the repetitions of these charges in a will, but that its meaning in every case must by sending anonymous letters to newspaper editors, depend upon the context, if there is any which can with their intended publication in the Leavenworth explain it, and upon those surrounding circumnewspapers, was naturally calculated to induce the stances which the court is bound to take into conclerk to believe that the charges were true, and to sideration in determining the construction." cause him to assault the supposed invader of his HORSE. — In People v. Pico, 62 Cal. 50, under a home and marital rights. Experience and observa- statute of larceny of “ horse or mare," an indicttion fully demonstrate that this is the natural order ment for larceny of a horse was held sustained by of things. Mrs. Carpenter's conduct was well cal- proof of larceny of a mare. The court said: " Alculated to put Col. Carpenter's life in jeopardy. though the courts of some of the States have held, Such conduct would also naturally tend to destroy under a statute similar to that of this State (section his reputation and influence as a politician and offi-487, subdivision 3, Penal Code), wbere both words cer, and to deprive him of his office and means of horse' and 'mare' are used, the proof must agree subsistence, and to utterly destroy his happiness with the indictment as to the sex of the animal, yet and peace of mind. And mental suffering may be as at common law the word “horse' was used in its much greater than physical suffering. And the generic sense, and was held to include all animals treatment Col. Carpenter received from his wife of the horse species, whether male or female, we must have caused him intense suffering, great an- are of opinion that the Legislature of this State, in guish of mind and spirit, and inexpressible sorrow. using the word 'mare,' did not intend to modify According to his own testimony, his grief was lit- or change the common-law rule, but inserted the
word possibly for more definiteness." If this was ceal' contemplates some action here; that he passes what the Legislature intended, it seems to us they under an assumed name, has changed his occupadid not carry their “definiteness" far enough for tion, or acts in a manner which tends to prevent the safety.
community in which he lives from knowing who he WHEREFORE. — This means, “for which reason." is or whence he came. It cannot be doubted that Ins. Co. v. Wright, 55 Vt. 52
the Legislature has the power to make the statute PREMISES. – In an insurance policy on goods of limitations absolute, and without any exceptions alone, the expression premises insured' does not on account of concealment; and when we rememmean the goods, but the building. The court said: ber that this statute has no extra-territorial force, “We are not referred to, nor have we been able to and therefore contemplates acts and conduct of the find, any adjudged case, or other recognized legal party within our limits, it would seem difficult to authority, which gives to the word 'premises' (ex- say that a man who, going under his own name, cept as used in conveyancing and the drafting of lives in a community in as open and public a manpleadings, etc.), any other legal definition than the ner as any other citizen in the same line of business, one, time honored and generally understood, of is concealing himself from the service of process
lands and tenements.' Nothing is insured by the within this State.” policies in this case that comes within that defini- SOUND HEALTH. — This, in an insurance wartion. In order to give the clause the construction ranty, does not mean absolute freedom from bodily contended for by the defendant as applicable to infirmity or tendency to disease. Morrison v. Wisthis case, we must add a new meaning to the word consin Odd Fellows' Mututal Life Ins. Co., Wisconsin
premises,' and say that it means not only "lands Supreme Court, January 8, 1884. The court said: “It and tenements,' but 'dry goods and groceries. We would be most unreasonable to interpret the term must go even further than this, and alter the very in sound health,' as used in contracts for life inwords of the contract, because the context is incon- surance, to mean that the insured is absolutely free sistent with such a definition of the word 'prem- from all bodily infirmities or from all tendencies to ises,' the prepositions both being inappropriate. disease. If that were its meaning we apprehend The skilled draftsman who formulated these by- but few persons of middle age could truthfully say laws would scarcely have prohibited the keeping of they were in sound health. Yet to obtain a life ingunpowder 'upon or in the dry goods and groceries surance a person must say that, or its equivalent. insured;' and we would therefore have to say that It is absurd to suppose that Mr. Morrison intended "upon or in' is equivalent to “among' or 'in the to say in his application that he had no bodily insame building with,' which would be directly in firmity, and was aware of no tendency to disease, the teeth of the great lexicographers, who tell us or that the company so understood him. Many that the distinctive meaning of 'upon' is 'not un- cases have been adjudicated which give construcder,' and of 'in' not outside of.' That the taking tion to the term 'good health,' or 'sound health' of such liberties with the language of a contract (which means the same thing), as those terms are which is plain, unambiguous and apposite, each used in contracts for life insurance. Some of these word having a perfectly well-established and under- cases are referred to in May Ins., $ 295. They all seem stood meaning, would be allowable under any cir- to sustain the conclusion we have reached, that '& cumstances is matter of grave doubt. In the pres-touch of dyspepsia coming on,' which manifests itent case it would be not only giving an exceedingly self only after long intervals, which yields readily liberal construction to the language of the contract, to medical treatment, and which is not shown to but straining that language to, if not beyond, its have been (as some of the cases put it) organic and utmost tension in favor of the insurer instead of excessive, is not inconsistent with a representation the insured, which, in view of the well-established that the person so affected is in sound health, as rules and principles of the law, and the authorities that term is employed in contracts for life insurabove cited, as well as many others to the same
ance." effect, which might be referred to were cumulative authority necessary, we think would be wholly un- PRESUMPTIONS ARISING EROM THE USUAL justifiable.".
COURSE OF BUSINESS. CONCEAL. — This word, as used in a statute of
RULE I. In commercial transactions the presumption limitations, was thus commented on in Frey v. Ault is that the usual course of business was followed by the man, 30 Kans. 181: “Suppose a merchant in the parties thereto. east absconds from his residence and comes to the "Where" it was once said by an English judge, "the city of Topeka, there engages in the same line of maxim of omnia rite acta præsumuntur applies there business under his own name, lives as open and indeed, if the event ought probably to bave taken
place on Tuesday, evidence that it did take place on public a life as other citizens of Topeka; can it be Tuesday or Wednesday is strong evidence that it took said that the manner of his departure from the east, place on Tuesday."(1) and the failure of his creditors after reasonable
ILLUSTRATIONS. efforts to discover his residence in Topeka, prove 1. In an action against the acceptor of several bills that he conceals himself, within the meaning of that of exchange which were made in November, 1850, and section? We think not. We think the word con
(1) Avery v. Bowden, 6 E. & B. 973 (1856).
became due on February 5th, and March 12th, 1851, the In case 1 it w.4s said : “ As regards the debt of tbe defense was that they were accepted by the defendant executor against the estate, which is for medical serwhile an infant. It was proved that the defendant vice and attendance, it is satisfactorily proved that he came of age March 11th, 1851. Held, that the presump- was the family physician of the testator; that be, as tiou was that all the bills were accepted before he at- such, attended him for several years, for which he had tained his majority.(2)
not received any pay. These services being valuable, 2. It was alleged in a bill for relief that a certain the law presumes a promise to pay. It is competent agreement was in writing. The presumption is that it however for the opposing party to show that the serwas signed.(3)
vices were rendered gratuitously," 3. A. and B. are proved to be carrying on business in partnership. The presumption is that they are inter
(B.) ested in equal shares.(4)
1. On the marriage of A. to B., the former went to In case 1 Jervis, C. J., said: “There is nothing on live with B.'s father by invitation, without any agreethe face of the bill to show when it was accepted.
ment as to payment of board for bimself and wife. Why then is it that this evidence is sufficient? It is
There is no presumption that he agreed to pay board. because it must be presumed that the bill has been ac
(8) cepted during its currency, and consequently before 2. A step-father assumes the parental relation the commencement of the action; because it is the
toward B., an infant, the child of his wife by a former usual course of business to present bills for acceptance husband. On the other hand B. renders services to before the time for the payment of them has run out, the step-father to a value in excess of his board and and witbin a usual time after the drawing of them. * education. There is no presumption of a promise to * * I decide this case upon this broad ground-that
pay for such services.19) we are to presume, unless the contrary is shown that a 3. The brother of A. after A.'s death presented a bill of exchange has been accepted, not on the day of claim for services for a period of five years. During its date, but within a reasonable time afterward. It this time he was boarded and clothed by A. There is not to be presumed that the acceptauce took place was no presumption of an agreement to pay him for after the maturity of the bill. That view disposes of these services.(10) the case as to all these bills-as to five of them because 4. A. and his wife boarded and lodged in the house they became due before the defendant attained the of B., the brother of A., and assisted him in carrying age of twenty-one, and as to the sixth, because a
on his business. There is no presumption that either reasouable time for its acceptance had elapsed before the services on the one hand or the board and lodging the defendant's majority." And Maule, J., added : on the other were to be paid for.(11) “Although it is not usual to accept a bill on the day on 5. L. was the mother of K.'s wife and lived with which it is drawn, it is usual to do so at some early op- them for ten years. There is no presumption of an portunity after that day. Therefore where the drawer agreement by her to pay for board, etc., during this and acceptor are both living in the same town, the time.(12) presumption is that the bill is accepted shortly-within 6. B. being out of employment went to live with C., a few days—after it is drawn; it being manifestly the and while there performed certain services for C. B.'s interest of the drawer to have a negotiable instrument mother and C.'s wife were cousins. The law implied made perfect as early as conveniently may be. The an agreement to pay the value of such services.(13) date of the bill therefore, though not evidence of the Iu case 2 it was said: “Under certain circumstances very date of the acceptance, is reasonable evidence of where one man labors for another a presumption of the acceptance having taken place within a short time fact will arise that the person for whom he labors is to after that day, regard being had to the distance the pay him the value of his services. It is a conclusion bill would bave to travel from the one party to the to which the mind readily comes from a knowledge of other. Upon the same principle upon which that pre- the circumstances of the particular case, and the ordi. sumption rests, it may be presumed in this case that nary dealings between man and man. But where the the bills were accepted before they arrived at ma- services are rendered between members of the same turity."
family no such presumption will arise. We find other “Where a partnership,” said Parke, B., “is found motives than the desire of gain which may prompt to exist between two persous, but no evidence is given the exchange of mutual benefits between them, and to show in what proportions the parties are interested, hence no right of action will accrue to either party, it is to be presumed that they are interested in equal although the services or benefits received may be very moieties."
valuable." In case 5 it was said: “ The law takes So there is a presumption against the validity of a notice very properly of the customs of hospitality and claim which has long lain dormant.(5) So non-user of friendly intercourse usual among mankind. This is it a patent "amounts to a very strong presumption as to seems to us the basis of the distinction between cases the invention not being useful."(6)
where the parties are not related by such ties, and RULE II. An agreement to pay for services rendered
those where they are so related. The counsel concedes and accepted is presumed (a) unless the parties are mem
that if the deceased had been K.'s mother instead of bers of the same family or near relatives (b).
the mother of his wife, the law of the case would hare
been so. We perceive nothing to warrant a distincILLUSTRATIONS.
tion between the case put and the one before us." In (A.)
case 6 it was said: "Ordinarily where services are 1. It is proved that medical services were rendered rendered by one person for another without any by A., a physician to B., deceased. The law presumes a promise by B. to pay for them.(7)
(8) Wilcox v. Wilcox, 48 Barb. 327 (1867).
(9) Williams v. Hutchinson, 3 N. Y. 312 (1850); Andrus , (2) Roberts v. Bethell, 12 C. B. 779 (1852).
Foster, 17 Vt. 556 (1845). (3) Rest v. Hobson, 1 Sim. & Stu. 543 (1824).
(10) Bowen v. Bowen, 2 Bradf. 336 (1853); Robinson v. Cush(4) Farrar v. Beswick, 1 Moo. & R. 527 (1836).
man, 2 Denio, 149; Fitch v. Peckham, 16 Vt. 150 (1844); Weir (5) D. T. v. D. L. R., 1 P. & D. 127 (1867); Sibbering v. Earl of v. Weir, 3 B. Mon. 645 (1843). Balcarras, 3 DeG. & Sm. 735 (1850).
(11) Davies v. Davies, 9 C. & P. 87 (1839). (6) In re Bakewell's Patent, 15 Moore P. C. 385 (1862).
(12) King v. Kelly, 28 Ind. 89 (1867); Cauble v. Ryan, 26 id. (7) In re Scott, 1 Redf. (N. Y.) 234 (1847), and see Burr v. Williams, 23 Ark. 244 (1861), as to goods furnished.
(13) Gallagher v. Vaught, 8 Hun, 87 (1876).
agreement in respect to compensation, the law will against the indorser, it was not alleged that the plaintimply an agreement to pay what the services are fairly iff was a holder for value. This is presumed.(16) worth. There is however a well recognized exception 3. An action is brought on a negotiable promissory to this general rule in respect to services rendered by note indorsed to the payee in blank. The defense is Dear relatives and members of the same family, on the failure of consideration. The presumption is that it ground that the law regards such services as acts of was transferred to the plaintiff on tbe day of its date. gratuitous kindness and affection. * The de- | (17 fendant's wife aud the plaintiff's mother are cousins. 4. A note is indorsed without date. The presump
* They were not therefore related at all, except tion is that the indorsement was made before the pote by affinity, and we think such relationship not suffi-beoame due. (18) ciently near to place the parties witbin the exception. “ The law was thus framed and has been so adminisWe have been unable to find any reported case that tered,” it was said in case 1, "in order to encourage carries the doctrine to that extent. In fact although the free circulation of negotiable paper by giviug conthe elementary writers seem to lay down the excep- fidence and security to those who receive it for value; tion as broadly as it is stated above, yet all the re- and this principle is so comprehensive in respect to ported cases confine it to cases of claims between mem- bills of exchange and promissory notes which pass by bers of the same family, and the courts refuse to im- delivery, that the title and possession are considered ply a promise be reason of the existence of the family as one and inseparable, and in absence of any explanarelation. * * We do not thiuk that the relation tion, the law presumes that a party in possession holds between the parties to this action was such as would pre- the instrument for value until the contrary is made to vent the law from implyivg an agreement to pay for appear, and the burden of proof is on the party attemptservices rendered."
ing to impeach the title. These principles are cer
tainly in accordance with the general current of au. SUB-RULE II. Negotiable paper is presumed to have thorities and are believed to correspond with the genbeen regularly negotiated, and to be or to have been regu. eral understanding of those engaged in mercantile larly held (14) (a.), ercept where it was procured or put pursuits.” In case 2 it was said: “It does not exin circulation through fraud or duress or is illegal (b). pressly appear in the declaration that the indorsees
are bolders for value. Value is implied in every acILLUSTRATIONS.
ceptance and indorsement of a bill or note. The bur
den of proof rests upon he other party to rebut the (A.)
presumption of validity and value which the law 1. A. is the holder of a promissory note. The pre- raises for the protection and support of negotiable sumption is that he is a bona fide holder for value re- paper.” In case 3 it was said: “In Parkin v. Moore, ceived.(15)
7 C. & P. 408, it was held by Baron Alderson that the 2. In an action on a promissory note by the holder burden of proving that the note was indorsed after it
was overdue was upon the defendant, where he sought (14) The legal presumption is that every promissory note
to defend by showing such facts as would constitute a was given in the course of business and for value and that it is to be paid by the maker as the primary debtor. Bank of
good defense to a dishonored note, and this ruling, Orleans v. Barry, 1 Denio, 116 (1845), Miller v. McIntyre, 9 Ala. being submitted to the other judges, was confirmed by 638 (1846); Dickerson v. Burke, 25 Ga. 225 (1858). "The pre- them. It may be that under the more precisely acsumption is that a note is of the value of the sum promised curate use of the term “burden of proof" as now held thereby to be pald.” Loomis v. Mowry, 8 Hun, 311 (1876); by the court, it would have been more correct to say Woodworth v. Huntoon, 40 Ill. 131 (1865); Curtiss v. Martin, that upon the production by the holder of a negotiable 20 id. 557 (1858); Kelley v Ford. 4 la. 140; Trustees v. Hill, 12 promissory note, indorsed in blank, the legal presumpid. 462; Wilkinson v. Sargent, 9 id. 521; Lathrop v. Donaldson, tion is that it was indorsed at its date, and it is in> id. 235 (1867); Canal Bk. v. Templeton, 20 La. Ann. 141
cumbent on the defendants to overcome that presump(1868); Scott v. Williamson, 24 Me. 343 (1844); Burnham v. Webster, 19 id 232 (1841); Earbee v Wolfe, 9 Port. 366 (1839);
tion by evidence. This must have been so understood Cook v. Helms, 5 Wis. 107 (1856). But where fraud or illegality in the present case, as the plaintiff had already proor duress is shown in its inception, the burden is on the duced a note thus indorsed, and the question was upon holder to show regularity. Bailey v. Bidwell, 13 M. & W. the effect of the testimony offered to show that it was 76; Harvey v. Towers, 6 Ga. 660; Fitch v. Jones, 5 El. & B. 238; indorsed after overdue. Upon such a state of Catlin v. Hansen, 1 Duer, 323; Gwin v. Lee, 1 Md. Ch. 445:
the case, it was the duty of the defendants to offer Munro v. Cooper, 5 Pick. 412; Sistermans v Field, 9 Gray, 332
sufficieut evidence to control the legal presumption (1857); Tucker v. Morrill, 1 Allen, 528 (1861); Beltzhover v.
arising from the indorsement of the note. In this Blackstock, 3 Watts, 26; Vallet v. Parker, 6 Wend. 615; Bissell V. Morgan, 11 Cush. 198 (1853); Perrir v. Noyes, 39 Me. 384 sense the burden was upon the defendants." (1855); Ellicott v. Martin, 6 Md. 509 (1854); Paton v. Coit, 5
(B.) Mich. 505 (1858); Clark v. Pease, 41 N. H. 414; Garland v. Lane, 46 id. 245; Perkins v. Prout, 47 'id. 389 (1867). In Ala- 1. In an action on a bill of exchange by an indorsee bama want of consideration like fraud casts the burden on the against the acceptor, there was evidence that the bill holder. Wallace v. Bank, 1 Ala. 567; Marston v. Forward, 5 had been procured by a fraud on the defendant. This id. 347; Thompson v. Armstrong, 7 id. 256; Boyd v. McIver, 11 id. 822 (1847); Ross v. Dunham, 35 id. 434 (1860). But the (16) Clark v. Schneider, 17 Mo. 295 (1852). English rule is that where there is "no fraud nor any suspi
(17) Noxon v. De Wolf, 10 Gray, 343 (1858). In Ranger v. cion of fraud, but the simple fact is that the defendant re- Cary, 1 Metc. 369, it was said. “A negotiable note being ofceived no consideration for his acceptance, the plairtiff is not
fered in evidence duly indorsed, the legal presumption is that called upon to prove that he gave value for the bill." Whit- such indorsement was made at the date of the note or at least aker v. Edmunds, 1 M. & R., 1 Ad. & Ell, 638, overruling. antecedently to its becoming due; and if the defendant would Thomas v. Newton, 2 C. & P. 606, and Heath v. Sanson, 2 B. & avail himself of any defense that would be open to him only Ad 291. And see Robinson v. Reynolds, 2 Q. B. 634; Bailey in case the note was negotiated after it was dishonored, it is v. Bid well, 13 M. &W. 72; Berry v. Alderman, 14 C. B. 95; incumbent on him to show that the indorsement was in fact Smith v. Brame, 16 Q. B. 244. And the same rule is followed made after the note was overdue." Stevens v. Bruce, 21 in most of the States. Holme v. Karsper, 5 Binney, 465; Knight Pick. 193; Webster v. Lee, 5 Mass. 534; Hendricks v. Judah, 1 v. Pugh, 4 W. & S. 445; Morton v. Rogers, 14 Wend. 576; Johns. 319. Rogers v. Morton, 12 id. 484; Vather v. Zane, 6 Gratt. 246; (18) Mobley v. Ryan, 14 Ill. 51 (1852); Pettis v. Westlake, 3 Wilson v. Lazier, 11 Gratt. 477; Tucker v. Morrill, 1 Allen, 528 Scam. 535; Walker v. Davis, 33 Me. 516 (1851); McDowell v. (1861).
Goldsmith, 6 Md. (319 (1854); Hopkins v. Kent, 17 id. 117 (15) Goodman v. Simonds, 20 How. 343 (1857).
cast the burden of proving that he paid value for it on our laws and courts enjoyed the confidence of the peothe plaintiff.(19)
ple, the citizens who took the law into their own hands 2. In answer to an action on a promissory note the would have refrained from doing so, though incensed defendant pleads that it was illegal in its inception and at the crimes and criminals, knowing that the offenders that the plaintiff took it without value. The illegality would soon get their deserts in the due course of the is proved. The burden is cast on the plaintiff to show administration of justice. The fact that they did not value.(20)
await the ordinary course of law, indicates that the 3. A check on a bank was given by 8. to C., for a confidence in proper results was absent. gaming debt. It was transferred to F., who brought Let us inquire whether the condition of our laws is suit on it against S. The burden was upon F. to prove really such as to justify such popular distrust, and it that he took it bona fide and for value.(21)
80, then what the possible remedies are. “When," it was said in case 1, "the drawer or ac- As the heart of every good and honest man revolts ceptor of a bill of exchange has proved that it was pro- | against the commission of crime, so there seems to be cured by fraud * * the presumption that the in- a general disinclination to believe another has comdorsee paid value is overcome, and it is incumbent mitted a crime. From this arises not only the preupon him to prove that fact before he can claim the sumption of innocence, with which the law surrounds protection which is vouchsafed by the law to a pur- every person charged with an offense during the inchaser for value without notice.” In case 2 Baron vestigation into the same, but also an inclination in Parke said: “It certainly has been the universal un- the mind of the average juryman to rather believe in derstanding that if the note were proved to have been the innocence of a man than in his guilt, frequently obtained by fraud or affected by illegality, that even in disregard of the evidence offered, or even if afforded a presumption that the person who bad been convinced of guilt, then at least to make the punishguilty of the illegality would dispose of it, and would ment light. It is a kind of sentimentalism, which of place it in the hands of another person to sue upon it; course the counsel for the defense try their utmost to and that such proof casts upon the plaintiff the burden kindle and turn to the advantage of their client. of showing that he was a bona fide indorsee for value." A most importaut point in favor of the defendant, “With clerks," it was said in case 3, “as with promis- and which has “ let out” many a criminal, is the nesory notes, the presumptiou is that they are given cessity of proof beyond a reasonable doubt" upon upon a valid consideration, but this presumption being all the material issues in the case to convict, which is rebutted, the necessity is thrown upon the holder of urged upon the jury by the court, and harped upon by proving that he received it in good faith, without no- the prisoner's counsel. tice of the illegality of the consideration."
Then there is the case with which changes of venue A note payable one day after date, it is held in Geor- can be obtained from the county where the otgia, is not entitled to this presumption." The pre-fense was committed to another one, necessarily insumption “it was said " assumes that the onus lies on cident to which is delay of the trial, and vexation the defendant to show that the plaintiff took the note and discouragement of the parties interested in the after its maturity. Ordinarily, that is when the note prosecution and their witnesses. In Indiana for inhas some time to run from execution to maturity, this instance, such change of venue can be had, where it is true; but we do not think that principle applies to is shown that the citizens of even a part of the county notes like this due one day after date; for the time are excited or prejudiced against the defendant ($ run is so short that it is not probable that it should be 1769 Rev. Stat.), although it might be possible to obput in circulation before maturity, at least not suff- tain a hundred jurymen from other portions of the ciently so to raise such a presumption of the holder. county who knew nothing of parties or subject-matNotes given due and payable at the time of their exe- ter of the prosecution. cution or at one day after date, do not belong to that Again there are continuances which the defendant class of paper intended for registration and circulation can obtain on many grounds, principal of which is the for commercial purposes, in which all the presump- absence of witnesses, who may exist only in the tions are in favor of the holder in order to protect in- prisoner's imagination. nocent purchasers and to encourage and foster their Then there is the further circumstance that the in. circulation; but they are given more as an evidence of quiry must be confined to the one case at issue, that indebtedness by the maker to the pavee." Beall v. the prisoner's antecedents cannot be shown in eviLeaverett, 32 Ga. 105 (1861).
dence, that even if he has led a life of crime, when he
JOHN D. LAWSON. enters the court to be tried for the last one of the St. Louis, Mo.
series, the law throws around him a cloak of angelio purity and innocence, covering even "a multitude of
sins." CRIMINAL LAW REFORM.
Then there is the case with which the prisoner can procure the testimony of his associates in crime in his behalf, which will manufacture circumstances of self
ple are generally quiet and law-abiding, resort is to raise a reasonable doubt in behalf of the accused, is had to lynch law to secure the punishment of crimi- sufficient to acquit him. nals, as has been the case in several instances in the
Then we have that “very present help in time of States of Iowa, Illinois, Indiana and Ohio in the last trouble,” the handy last resort for the prisoner, the year or so, such may be taken as an indication that “insanity dodge,” which might be called the "safe “something is rotten in the State of Denmark.” The
cure" of the doctors of the criminal law, applied in crimes committed by the persons who were thus suin- all close cases, and which actually effects what it is ad. marily disposed of by “the country were of such a
vertised for, it being sufficient to acquit, under the deflagrant and atrocious character, the certainty of their visions of many of our highest courts, if the evidence commissiou by the men who fell victims to the popu- raises a reasonable doubt of the sanity of the defendlar wrath so absolute, the proof so abundant, that if ant. (19) Ross v. Drinkard, 35 Ala. 434 (1860); Boyd v. McIver, 11
Last but not least, we have reversals by the Appelid. 822 (1847).
late Courts of conviotions for some technical defect in (20) Balley v. Bidwell, 13 M. & W.74 (1844).
pleading a practice. (21) Fuller v. Hutchins, 10 Cal. 523 (1858).
All these are matters permitted under the present