an architect that the 'tower' is not a tower, but has been called a 'chicken-coop,' yet I think it is too much to expect of men that in naming a conspicuous building they shall not be allowed to use the language of compliment. And it seems to me that a fine house may be called a palace, and that the ornament on a high building like this may be called a 'tower;' and that 'tower-palace' is not in the language of compliment a too exaggerated name for this particular structure. The newspaper, in describing the plaintiff's opening, called particular attention to this tower, setting forth its command of all the territory adjacent to Louisville. It is to be observed that the sign on the tower was simply 'Tower Palace,' and not Tower Palace Clothing House, and it is further proved that the iron slab at the front door has the words 'Tower Palace' cast in it. I think this name was suggested and adopted as appropriate to this particular building, and was given to the building itself, and that it does not matter who first called it 'Tower Palace."" "What is true of the name of an article must be equally true of the name of a building. It would be unjust to its owner to limit him as to his tenants, or to prevent him from taking a proper advantage of its notoriety. No new tenant has any right to deceive the public into thinking the building is still occupied by a former tenant. But in so far as the public are deceived by the fact that the name of the building continues to be used, such misleading cannot be avoided, any more than a belief that the first firm that manufactured 'Paraffine Oil' or 'Essence of Anchovies' will continue to exclusively supply the market with these articles. To make this even plainer, suppose a house built of red granite called by its first tenant Red-Granite House, or of brown stone so named Brown-Stone Palace, could such a tenant move away his business and sign to a brick house or a frame house and prevent all other tenants from calling the houses by their appropriate names? I am not willing to put this case solely on the ground that the name 'Tower Palace' was appropriate or descriptive of this building. I am inclined to think that whatever name had been given must adhere to it." See "Antiquarian Book-Store " case, Choynski v. Cohen, 39 Cal. 501; 2 Am. Rep. 476; "No. 10 South Water street" case, Glen & Hall Manufacturing Co. v. Hall, 61 N. Y. 226; 19 Am. Rep. 278.

In Pratt v. State, 35 Ohio St. 514, it was held that necessary and suitable clothing furnished by a husband to his wife, or purchased by her with money or means given to her by her husband for that purpose, does not become her separate property within the meaning of the statute concerning the rights and liabilities of married women. The court said: "Notwithstanding the very comprehensive terms of this statute, a majority of the court are of the opinion that they do not embrace the wearing apparel of his wife, furnished by the husband, or purchased by her with money or means given to her by the husband for that purpose. As to such property, it was not intended by the statute to deprive the

husband of all ownership and control; for surely, while the duty of the husband to furnish his wife with necessary and suitable clothing is continued, it was not intended to deprive him of the right to control and preserve it. Nor does it make any difference, where a wife purchases her apparel with pin money, given to her by her husband to be expended according to her will and pleasure. Of such property, the possession of the wife is the possession of the husband. It has been held, however, by the Supreme Court of Indiana, that a statute similar to ours operates as to clothing of the wife acquired otherwise than from the husband, or through his means, so as to invest her with a separate estate therein. Stevens v. State, 44 Ind. 469. See, also, 17 Ala. 415; Hawkins v. Providence & Worcester Railroad Co., 119 Mass. 596; S. C., 20 Am. Rep. 353; 51 Ill. 162; 1 Am. L. Reg. 434. And we are inclined to think that there are good grounds for the distinction. Where the wife's clothing is furnished by the husband, in discharge of his marital duty toward her, the statute does not divest him of the property contrary to his intentions; while on the other hand, where the property is otherwise acquired by the wife, the statute simply prevents a title vesting in him by virtue of his marital relation. Under the statute, the 'gift,' which is declared to be the separate property of the wife, is a voluntary one, as all gifts must be, and does not embrace necessaries which a husband is under a legal duty to furnish his wife." Under our statute a married woman can sue in her own name for injury to her paraphernalia; Rawson v. Penn. Railroad Co., 48 N. Y. 212; S. C., 8 Am. Rep. 543; but in the absence of proof of a gift to her, the husband can sue. Curtis v. Delaware, etc., Railroad Co., 74 N. Y. 116; S. C., 30 Am. Rep. 271. In State v. Pitts, 12 S. C. 180, it was held, that while a married woman may acquire title to articles of apparel by gift from her husband, yet her mere use and enjoyment of such articles purchased by her husband does not give her title thereto as her separate property; and on an indictment for stealing such articles, laying them as the property of the husband, the question of title is for the jury.

COMPELLING PRISONER TO FURNISH PERSONAL EVIDENCE OF HIS IDENTITY.

ONE

NE of the most interesting questions in the law, and one of frequent recent occurrence is, how far can a person accused of crime be compelled to furnish personal evidence of his identity with the perpetrator, and thus to make evidence against himself? It will be useful to group and review the decisions pro and con.

To commence with the most recent. In State v. Ah Chuey, 14 Nev. 79, on a question of personal identity, in a trial for murder, a witness testified that the defendant had certain tattoo marks on his person. The court compelled the witness, against his objection, to expose his person to the jury. Held, no error. This was held by two judges, the

third dissenting in a very learned and able opinion, to which we shall advert. The prevailing opinion is elaborate, and likens the exposure in this case to compelling a prisoner to remove a veil or mask. The distinction however is, that there the prisoner tries to conceal evidence which is ordinarily visible, and from which the jury have a right to draw a conclusion, and the removal simply restores that evidence. The prisoner has no more right to hide his face than to secrete his whole person. The court also liken the ruling to the searching a prisoner and finding false keys or stolen property upon him. The sufficient answer to that is, that such things are not part of his person, but are circumstances by which he has surrounded himself. When these circumstances are disclosed, it is not the man who is compelled to give evidence against himself, but the circumstances by which he has environed himself. The conclusion of the court is "that no evidence of physical facts can, upon any established principle of law, or upon any substantial reason, be held to come within the letter or spirit of the Constitution." This decision cited with approval the North Carolina decisions and distinguished the Tennessee case which we shall allude to.

In Walker v. State, 7 Tex. Ct. App. 245, on the trial of an indictment for murder, the prosecution were allowed to prove that the examining magistrate had compelled the prisoner to make his footprints in an ash-heap, and that they corresponded with footprints found at the scene of the crime. Held, no error. Counsel acutely argued that "if this prisoner can be compelled to make an impression with his foot in order to see if it is similar to the impression made by the foot of the person who committed the crime, then if he were charged with forgery he could be compelled to take a pen, and write, in order to see if his handwriting was similar to that of the party who had committed the forgery." (This he may now by statute be compelled to do in England.) This decision is founded on State v. Graham, infra, and Stokes v. State, infra, is distinguished on the ground that there "the prisoner was asked in the presence of the jury to make evidence against himself" a perfectly futile distinction, as we shall see. The worst of this decision is that it permits secondary evidence of incompetent evidence-evidence of an experiment out of court, which, if tried in court, might not have been conclusive against the prisoner.

In State v. Graham, 74 N. C. 646; S. C., 21 Am. Rep. 493, an officer, who had arrested a person charged with larceny, compelled him to put his foot in a track found near where the larceny was committed, and testified as to the result of the comparison. Held, no error. The court say, "no hopes or fears of the prisoner could produce the resemblance of his track to that found in the cornfield." They instance the case of a fragment of a knife-blade found sticking in a window, and its correspondence with the blade of a knife found in a prisoner's pocket; the similar case of gun-wadding found in a wound, and evidently torn from paper in a prisoner's pocket; the correspondence of marks

on a prisoner's face with the wards of a key with which he was struck at the time of the commission of the offense; and ask: "If an officer arresting one charged with an offense had no right to make the prisoner show the contents of his pocket, how could the broken knife, or the fragment of paper corresponding with the wadding, have been found? If when a prisoner is arrested for passing counterfeit money, the contents of his pockets are sacred from search, how can it ever appear whether or not he has on his person a large number of similar bills, which, if proved, is certainly evidence of the scienter? If an officer sees a pistol projecting from the pocket of a prisoner arrested for a fresh murder, may he not take out the pistol against the prisoner's consent, to see whether it appears to have been recently discharged?" They then instance a veil and a mask. This is fairly the substance of the opinion, and we have already sufficiently commented on this line of argument.

In State v. Garrett, 71 N. C. 85; S. C., 17 Am. Rep. 1, at a coroner's inquest, upon the body of a person found dead, it was proved that defendant had said that deceased was accidently burned to death, and that defendant had burned her own hand in trying to put the fire out. Defendant being then in custody on suspicion of having murdered the deceased, was ordered by the coroner to show her hand, which she did, and it appeared uninjured. Held, that evidence of such fact was admissible upon the trial of defendant for the murder. This must be classed with the mask and veil as an instance of an attempt to conceal evidence ordinarily visible. The jury of course have a right to scrutinize patent facts, such as stature, shape, complexion, hair, features, scars, loss or peculiarity of members, etc. These are public matters, which the public cannot be prevented from viewing, and which the prisoner knows are liable to comment and compariOf these, witnesses who observed them may speak, or the jury may look at them in court. So if witnesses have observed the patent characteristics of gait and voice, they may testify to them, or the jury may observe the prisoner's gait as he naturally and voluntarily walks, or his voice as he voluntarily speaks. But will it be contended, that on a question of resemblance of gait, the court can compel the prisoner to get up and walk, or that on a question of voice, they can compel him to speak ?

son.

The foregoing are the only cases holding this doctrine. On the other hand is Stokes v. State, 5 Baxt. 619; S. C., 30 Am. Rep. 72. On an accusation of murder, it being claimed that certain footprints were those of the prisoner, the prosecuting attorney brought a pan of mud into court, and placed it in front of the jury, and having proved that the mud in the pan was about as soft as that where the tracks were found, called on the prisoner to put his foot in the mud in the pan. On objection, the court instructed the prisoner that it was optional with him whether he would comply. The prisoner refused, and the court instructed the jury that his refusal was not to be taken against him. The prisoner being convicted, held, that he was entitled to a

new trial. It is impossible to distinguish this case. If the court had considered the evidence competent, it would have compelled the prisoner to "make tracks," or instructed the jury that his refusal might be considered against him. The court said: "In the presence of the jury the prisoner is asked to make evidence against himself." That is exactly what he was asked to do in the tattoo case, and what he was compelled to do in the Graham case. It is immaterial whether he is compelled to do it out of court or in court. The distinction drawn by the court in the Walker case against the Stokes case, would apply just as well to the Graham case.

In People v. Mc Coy, 45 How. Pr. 216, an indictment of a woman for murder of an illegitimate child at birth, the coroner had directed two physicians to go to the jail and examine her private parts to determine whether she had recently been delivcred of a child. She objected to the examination, but being threatened with force, yielded, and the examination was had. Their evidence was offered on the trial, and ruled out. The court said the proceeding was in violation of the spirit and meaning of the Constitution, which declares that " no person shall be compelled in any criminal case to be a witness against himself." "They might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been pregnant and had been delivered of a child, as to have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and been recently delivered of a child." "Has this court the right to compel the prisoner now to submit to an examination of her private parts and breasts, by physicians, and then have them testify that from such examination they are of the opinion she is not a virgin, and has had a child? It is not possible that this court has that right; and it is too clear to admit of argument that evidence thus obtained would be inadmissible against the prisoner."

truth, and the result would have verified the statement. Suppose, instead of the hand and bust of a woman, he had written upon his breast, in India ink, the words, 'I am Ah Chuey,' why could those words be shown with more propriety than the words in the diary, and could they not have been shown if was proper to compel him to exhibit the mark?" "Had the identifying mark been upon some portion of the body not concealed, and had the jury seen it by reason of the defendant's presence in court, I do not say that they could not have acted upon the fact so observed. What I say is, that whether the mark is concealed or not, the court cannot compel a defendant, for the purpose of identification, or any other, the tendency of which is to criminate, to exhibit himself or any part of himself before the jury as a link in the chain of evidence." "Had the district attorney asked the defendant whether he had on his right forearm the tattoo mark described, and had the court, against the defendant's consent, compelled him to answer that he had such a mark, there can be no doubt that such action would have been a grave error. Could the court, at the trial, in the presence of the jury, by other and forcible means, accomplish indirectly what it could not do by direct means?"

Neither Wharton nor Bishop expresses any opinion on this question, but it seems to us that on principle a prisoner cannot be compelled to say any thing, nor do any thing, nor submit to any act addressed to his actual person, which may tend to criminate him.

LIABILITY OF SHERIFFS BEFORE RETURN DAY OF EXECUTION.

A

fieri facias issues from the fall term of a Superior Court, returnable to the ensuing spring term of the same. In a week after its issuance, the sheriff collects the money thereunder. Is the execution plaintiff entitled to that money upon demand, and does the sheriff expose himself to an action by refusing to pay it over? This is a question upon which there seems to be a dearth of adjudication. Does the money as soon as it goes into the hands of the sheriff become the money of the plaintiff? Greenleaf, in the second volume of his Law of Evidence (Redfield's edition), p. 515,

to close his mouth, but that he might fold his arms as well, and refuse to be witness against himself in any sense or to any extent, by furnishing or giving evidence against himself, whether testimony under oath or affirmation, or confessions or admissions without either, or proofs of a physical nature." "If witness Rhoades had testified that he knew the defendant was Ah Chuey, because he was a good English writer, and had for years kept a diary; that he wrote in it every day, and signed his name 'Ah Chuey,' to each entry; that he saw the book a few minutes before coming into court; that defendant then had had the book on his person, would any one say that the court, without error, could have compelled him to show the book to the jury? And yet why not, on principle, if he could be compelled to exhibit a private, harmless mark, for the same purpose? The object would have been to ascertain the

comes into the officer's hands, is money had and received to the creditor's use.' On the other hand, the North Carolina court, in State v. Lea, 8 Ired. 94, hold that “a sheriff cannot apply to the satisfaction of an execution against a person, money which he received on an execution in favor of that person," for the reason, that “until it be paid over to the party, it is not his goods." For the purposes of the present discussion, it is not necessary to attempt a reconciliation of these apparent contradictions, as the question here is, not whether the money is the plaintiff's before it is paid over, but whether he has a right to have it paid over as soon as it is collected. Upon principle it would seem that the creditor has the right to demand the money. The general rule is undeniable, that the principal who constitutes one his collecting agent has a right to demand of his agent at any time such moneys as he may have in hand, less the agent's expenses, charges and commissions. That the sheriff is in contemplation of law the agent of the execution creditor is obvious from the fact that an injunction to restrain proceedings under the execution is directed to the creditor, and it is irregular to direct

such injunction to the sheriff. In Jarman v. Saunders. 64 N. C. 367, Rodman, J., says: "It has been so frequently held that an injunction should not be prayed against the sheriff, who is only the agent of the plaintiff, that if the sheriff had not appeared, we should have been bound to allow him his costs." Mr. Freeman, in his learned note to McDonald v. Neilson, 14 Am. Dec. 431, says: "The plaintiff is the person most interested in the writ of execution; and generally the sheriff should heed his instructions, and permit him to have substantial control of the writ. * * ** All the directions of the plaintiff not characterized by fraud, oppression, or undue vigor must be obeyed." He cites among other authorities, Tucker v. Bradley, 15 Conn. 46; Rogers v. McDearmid, 7 N. H. 506; Richardson v. Bartley, 2 B. Mour. 328. Indeed, the opinion of the learned writer of the most thorough and exhaustive treatise on Executions now extant is, in itself, highly respectable authority.

It is difficult to imagine any reason why this agent (the sheriff) appointed by law, should be less amenable to his principal (the execution creditor), than an agent voluntarily selected by him. It has been suggested that as the fi. fa. directs the officer to "have the money" at the ensuing term of the court, he must retain it until then, so as to be able to respond to the exigency of the writ. To harmonize the adjudications, however, it is not unfair or unreasonable to resort to construction, and to give the terms of the precept the effect of a command to have the money by the next term of court. The vacation between the terms is, probably, deemed a sufficient time for raising the money, and that time, but no more, is allowed the officer. For the officer's convenience, the interval between the terms of court is allowed him for raising the money, but if he raises it sooner, no good reason appears why he should be compelled to withhold it from the party entitled to it until the return term.

Reason and good conscience would seem to dictate a course analogous to that pursued in the settlement of estates by executors and administrators. The North Carolina statute allows them two years to settle, upon the supposition that many estates which are complicated cannot be settled in less time, but this was intended as an indulgence to them, and where there are no debts due from the estate and no complications, equity will compel an immediate settlement with the legatees or distributees. Turnage v. Turnage, 7 Ired. 127. It is clear that in North Carolina the sheriff is not obliged to keep the money until the return day. In Whitehead v. Hellen, 74 N. C. 679, the court uses this language: "If an execution be satisfied soon after the adjournment of the court from which it issued, why should the sheriff be compelled to retain the money in his own hands until the term to which the execution is returnable? Would it not be better for all concerned that he should pay the money, either into office or to the party entitled thereto?" The returu term "is the limit beyond which he may not delay, but there is no good reason why he should delay so long, if no useful purpose is to be served thereby." If the sheriff delays to pay the money to the party entitled when there is "no good reason" for doing so, is he not in default? This is the strongest expression on the subject to be found in the North Carolina Reports. In Patten v. Mann, 13 Ind. 444, Pearson, J., says: "It may be that if he " [the sheriff acting under a fi. fa.] "had received the money, he was bound to pay it over to the plaintiff on demand," but this was merely obiter. While there may be some difference of opinion as to whether the money collected by execution belongs to the creditor as soon as it comes into the officer's hands, it appears to be held with great confidence, by several text writers, and courts of high authority, that the plaintiff in the execution can entitle himself to it by demanding the money of the sheriff.

In 2 Greenl. Ev., § 587, p. 515, it is said that "where the precept does not otherwise direct him, he [the sheriff] is bound to pay it over to the creditor on the return day of the process 'under which it was levied, without any demand, and earlier if demanded; upon failure of which an action lies." Freeman says in his work on Executions, § 448, p. 740, that "the liability of officers before the return day has not been discussed with much frequency. The rule in force in Massachusetts is, that where money has been collected before the return day, the officer is at once liable to the plaintiff if the latter demands payment; but that in the absence of such demand, no liability arises until after the return day." A careful scrutiny of the Massachusetts cases referred to in the note to this paragraph discloses no reason why the doctrine there announced should be treated as of local application. It is true that one of the cases, Rogers v. Sumner, 16 Pick. 387, was a suit to recover a statutory penalty for failure to pay over money before the return day of the execution, but the penalty only was the creature of statute, the right which was involved was left as if the enactment had never been. In this case (Rogers v. Sumner) the court say: "It is objected that the actions were prematurely brought, having been commenced before the return day of the execution. But where the party is injured by the officer's misfeasance, he is not obliged to wait until that day. Here the officer had the money in his hands, the goods having been sold under mesne process, and it must be considered as having been applied to these executions. In many cases the officer is able very early to obtain the money due upon an execution, and the question is whether he shall pay it over immediately to the creditor, or retain it in his own hands until the return day. It may be questionable whether he is bound to pay it sooner without demand, but upon a demand being made, we think it is his duty to pay it over." This question has received some consideration in New York. Armstrong v. Garrow, 6 Cow. 465, was assumpsit against a sheriff for the amount of a note taken by him in satisfaction of an execution (ca. sa.) in favor of the plaintiff against a third party. Suit was brought against the sheriff before the return day of the execution and sustained by the court, Savage, C. J., delivering himself as follows: "The general principle is not denied that this action lies in all cases where any one has received the money of another and refuses to pay it over. I can see no reason why au officer who has collected money on an execution, and refuses to pay it to the owner, should not be liable as for money had and received. The sheriff has received the money for the plaintiff's use; and having refused to pay it, is rightfully prosecuted." One other consideration is suggested. When the sheriff collects the money on an execution, the judgment and execution are satisfied and the creditor can no longer have recourse on the execution defendant. Henry v. Rich, 64 N. C. 379; Hunt v. Breading, 12 Serg. & Rawle, 37. Interest on the judgment debt then stops, and if the sheriff can rightfully retain the money until the return term, the plaintiff is in a worse condition by getting judgment than he was before; for if the sheriff had not collected, interest would have continued to run against the judgment debtor. Such an anomaly and such a hardship is not in keeping with the spirit of the law.

HUGH F. MURRAY.

RATIFICATION BY PEOPLE OF CONSTITUTIONAL AMENDMENTS.

INDIANA SUPREME COURT, JUNE 17, 1880.

MATTER OF INDIANA CONSTITUTIONAL AMENDMENTS. The Constitution of Indiana provides, in reference to the adoption of amendments thereto, among other things, that "it shall be the duty of the General Assembly to