neither courts nor juries can lawfully dispense with what the act of Assembly requires." Nearly ten years afterwards the same judge, after the fullest consideration, repeated the same doctrine in the Com. v. Haggerty, who was tried and convicted of murder of the first degree in Lancaster, in January, 1847.-Lewis' Crim. Law, 405. These instructions, it is true, did not save the lives of the prisoners, but it is no doubt satisfactory to all parties that they enjoyed the advantage of having the law humanely, and, as is believed, correctly expounded.

In Virginia, where there is a statute dividing murder into degrees, like that of Pennsylvania, it is believed that a similar view of the law prevails. Com. v. Jones. 1 Leigh, 612.

In Tennessee, Mr. Justice Reese, in 1843, in delivering the opinion of the Supreme Court upon a similar statute, has explained the law on this interesting question in language so clear and forcible as neither to be misunderstood or refuted. In the case of Swan v. the State, 4 Humphreys, 136, the Judge makes the following remarks:

“The characteristic quality of murder of the first degree, and that which distinguishes it from murder in the second degree or any other homicide, is the existence at the time of the death of the assaulted, of a settled purpose and a fixed deliberate design on the part of the assailant that his assault should produce death. The length of time which the assailant deliberates on his intention is not material. Drunkenness is no excuse for or justification of crime. But although drunkenness in point of law constitutes no excuse or justification for crime, still when the nature and essence of a crime is made by law to depend upon the peculiar state and condition of the criminal's mind at the time, and with reference to the act done, drunkenness, as a matter of fact affecting such state and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question in such case is, what is the mental status? Is it one of self-possession favorable to the formation of a fixed purpose by deliberation and premeditation? Or did the act spring from existing passion, excited by inadequate provocation, acting it may be on a peculiar temperament, or upon one already excited by ardent spirits? In such case it matters not that the provocation was inadequate, or the spirits voluntarily drank. The question is, did the act proceed from sudden passion, or from deliberation and premeditation? To regard the fact of intoxication as meriting consideration in

such a case, is not to hold that drunkenness will excuse crime, but to inquire whether the very crime which the law defines and punishes has in fact been committed. If the mental state required by law to constitute the crime be one of deliberation and premeditation, and drunkenness or other cause excludes the existence of such mental state, then the crime is not excused by drunkenness, or such other cause, but has not in fact been committed."

We have thus drawn attention to the change in the law which the statutory division of murder into degrees necessarily produces, because many of the States have statutes of this character in operation. Our readers in Maine, New Hampshire, New Jersey, Michigan, Maryland, Virginia, Ohio, Tennessee, Alabama, and other States where similar statutes exist, will not, we trust, complain of the space occupied in this discussion. It should always be remembered, in cases of the kind under consideration, that the doctrine that a man "shall not be permitted to privilege one crime by another," applies not to cases expressly provided for by statute. The principle of the common law gives place to the omnipotence of legislative enactment. Were this not so, the statutory amelioration of the code would be abortive, and a man might still be hung in Pennsylvania, and in some other States for accidentally killing another when his intention. was only to kill a fowl for the purpose of stealing it. The same principle which reduces the unintentional killing, in the perpetration of a larceny, to murder of the second degree, places in the same ameliorated category the act of killing by one whose mind, from extreme intoxication, was incapable of forming a murderous design.

DISTRICT COURT OF VAN BUREN CO., IOWA: MARCH TERM, 1848.

[BEFORE OLNEY, J.]

WOOD v. BOWMAN.

PHYSICIANS' DUTIES, LIABILITIES, OPINIONS, BOOKS.

A general undertaking to conduct an accouchement, calls for the exercise of all the skill usually possessed by accouchers; and a special agreement, express or implied, is necessary to restrict the liability to the accoucher's actual knowledge or mode of practice.

Medical books are not, but the opinions of experts are, competent evidence of the truths of medical science.

This was an action on the case against a physician for negligence in conducting the delivery of the pltffs. wife. The placenta was allowed to remain partly detached from the uterus, accompanied with slight hemorrhage, for thirty-six hours, and was removed by a consulting physician then called in. Puerperal fever supervened, followed by permanent ill health. Physicians testified their opinions as to the propriety of the delay and its effect.

The defendant offered to prove that he was a Botanical physician, and that, according to the doctrines of that school, his treatment of the case was correct; and he proposed to read medical books in support of the practice. The plaintiff objected, and the evidence and books were ruled out. The Judge remarked, that the duties of the defendant were not to be measured by his own knowledge and skill, or his own particular mode of practice. Having undertaken, generally, to conduct the accouchement, he was bound to bring to his aid, and apply with care and diligence, all the knowledge and skill usually possessed by practitioners of that art, and which the exi

gency of the case might require. A stipulation to limit his duties to a particular mode of treatment, could not be inferred, unless he were employed with at least a knowledge that he would pursue that mode. As to the books, they are not competent evidence of the truths of medical science. Those truths are facts, provable by the opinions of experts. But such opinions must be given in Court, under the sanction of an oath. Their soundness may then be tested by a cross-examination into the facts and reasonings on which they are based, and the ability and opportunity of the witness to form correct conclusions.The written opinions contained in these books, have never passed this ordeal. It is sufficiently difficult to extract the truth from the various opinions of witnesses upon the particular facts of the case. To go to a medical library, and select the standard scientific truths, applicable to the particular case, from a wilderness of conflicting theories, concerning which these books are filled with ingenious and acrimonious controversies, is what a jury could never do.

The Court directed the jury to determine whether the placenta ought to have been sooner removed; whether ordinary skill and attention on the part of the defendant would have led him to that conclusion; and whether the delay caused or contributed to the sickness of the patient. If the evidence is insufficient to affirm these three propositions, the defendant is entitled to a verdict; if sufficient, the plaintiff is to recover such damages, as, in the discretion of the jury, guided by a sense of honest fairness, they shall think he ought to have for the cares, anxieties, and expenses of the sickness thus occasioned, for the loss of the society, counsel, and assistance of his wife, and for the temporary and permanent injury to his domestic comfort and happiness. Verdict for Plaintiff.

[5 West. L. J. 553.

Supreme Court of Pennsylvania.

MIDDLE DISTRICT.-HARRISBURG, MAY, 1848.

Farmer v. Sedgwick.-A conditional bid at a Sheriff's sale is not obligatory upon the Sheriff; nor an absolute one which is merged in one conditional, if not revived subseqently. Per Burnside, J. Error to Dauphin Co. Judgment reversed.

Seibert v. Swan.-Where the proprietor of two adjoining tracts of land through which ran a water course to his mill on the lower one, part of which was the natural bed of a small stream, and part of it a trench from a neighboring creek, conveyed the upper tract without expressly reserving the water right, to a party who has obstructed the trench, and cut off the supply of water from the creek, he may sustain an action, on the principle of an implied reservation. Per Gibson, C. J. Error to Berks Co.

Judgment reversed.

N. B. In this case Justices Rogers & Coulter dissented.

Fisher v. Longenecker.—The bringing of a suit before a Justice of the Peace and then directing the constable not to serve the writ, is but a non suit; and this cannot be regarded as a suit pending so as to be pleaded either in abatement or bar before another justice for the same cause of action. The plea of former recovery can be sustained only when the merits of the controversy have been passed on. Per Bell, J. Error to Dauphin Co. Judgment reversed.