as it is the act of the supposed decedent in remaining absent without communicating with his friends for more than seven years that causes the injury, and consequently he, rather than the debtor, ought to suffer. The decision, however, was to some extent placed upon the statutes of New York, which were assumed to be peculiar in this respect that is to say, before administration can be granted, the fact of the person dying intestate shall be proven to the satisfaction of the surrogate, who shall examine the person applying touching the time, place and manner of the death, and may examine any other person, and for that purpose compel their attendance as witnesses. While it is conceded that in general the finding by the court of the fact upon which the jurisdiction depends is not conclusive of the jurisdiction, yet it is maintained that as in this instance the court was required to hear evidence and determine the facts, the determination must be conclusive until revoked, so far as concerns third persons who had acted upon the faith thereof.

It does not seem clear that an administration granted under such a statute would in this respect be different from administration granted under a statute simply authorizing the granting of administration upon the estates of deceased persons, but it is unnecessary in the present case to pursue this branch of the inquiry. The force of the argument in favor of the validity of the administration seems to apply especially to a case of this character, where the assumption of death rests upon the fact of seven years' absence without being heard from, and the hardship of requiring a debtor, who has recognized an administrator appointed under such circumstances, liable to a second payment seems peculiarly pointed.

It must, however, be in principle immaterial what the proof of death may be as to the effect of the judgment. Whether the court find or assume the fact of death upon proof of seven years' absence, or upon testimony of witnesses directly to the point, the question must be the same, that is to say, it is the finding or assumption of the fact of death by the probate court, conclusive until revoked by the same court, or reversed on appeal; for we have no statutes authorizing administration to be granted upon proof of seven years absence without being heard from. It is simply a common-law rule of evidence, and it has no more force than any other evidence that may turn out to be untrue; administration granted upon such evidence is no more lawful than if granted upon false testimony of witnesses. It may be the misfortune of the parties in interest in either case, that for the time being they are unable to show the real truth. In such a case there is real hardship in requiring a debtor to pay the second time, but such is always the effect of holding, as courts are often compelled to do, that former judgments have been rendered without jurisdiction.

The defendants in this case were unable to defeat the demand of Whitly, because they were unfortunately unable to prove the real truth-such misfortunes occur. The hardship

to the debtor can not be regarded greater than to hold the creditor bound by an administration of his estate in his life-time. To deprive him of his property and rights by a proceeding of this character, to which by no sort of construction can he be regarded as a party, is violation of first principles. It is said, however, that it is the fault of the supposed decedent in remaining absent for seven years without communicating with frier ds that gives rise to the presumption of death, and causes the injury, and he ought, therefore, to be bound by his own acts. The seven years' absence may be wilful, or it may be the result of insanity, imprisonment or other misfortune. The failure of friends and acquaintances to be informed as to the residence of the absent one, or that he still lives, may be the result of accident or other cause. In what cases the conduct of a person in remaining absent, and conniving at the acts of a pretending administrator, should be held fraudulent and an estoppel, it is unnecessary to inquire, as such is not the present case.

Whitly, to whom administration was granted as next of kin, turns out tɔ be in no wise related to complainant, and she could not have anticipated such a proceeding, or be held to have connived at it by remaining absent.

A debtor in a case like the present could always obtain the indemnity which in this case was obtained by applying to a Court of Chancery, that is, a bond of indemnity against the contingency of the creditor returning alive-an indemnity that perhaps ought to be provided by statute, and there could be no more hardship in requiring the debtor to look to such a bond for indemnity than in requiring the creditor to do so. The money, when thus paid, should be recovered back either by the debtor who had paid it, or by the creditor who returns alive; and if the security of the bond fail, it would be as great a hardship, to say the least of it, to require the creditor to lose it as to throw the loss upon the debtor.

Therefore the question of hardship is out of the way, and the fact that the administration was granted upon proof of seven years' absence forms no exception to the general rule-and we return to the question whether administration upon the estate of a living person is valid. Has a probate court, under our statute, jurisdiction to grant administration otherwise than upon the estates of deceased persons? Our statutes have not the supposed peculiarity of the statutes of New York; they simply authorize administration upon the estates of deceased persons, and if the person be not dead, the court would be acting ultra vires to appoint an administrator. But it is said the probate court has jurisdiction to ascertain the fact of death, and its judgment finding that fact is conclusive until revoked or reversed. The general principle is, that the jurisdiction being conceded the judgment is conclusive of all matters involved; but if the jurisdiction be disproved, then the judgment is void for all purposes. If it be conceded that the jurisdiction rests upon the existence of a particular fact, then it will not do to say that the finding of that fact by the court is

conclusive of its own jurisdiction-for this would be, to use a common expression, "reasoning in a circle." The judgment is conclusive if the court had jurisdiction, and its judgment that it had jurisdiction is conclusive of the jurisdiction. There may be in some cases confusion as to what constitutes the jurisdictional facts, but this would seem to be about as clear an illustration of it as could be found: That a probate court has assumed that a certain person is dead, and has granted administration upon his estate, when, in fact, he was not dead. A similar illustration is given by Chief Justice Marshall; he says: "If by any means whatever a prize court should be induced to condemn as prize of war a vessel which was never captured, it could not be contended that the condemnation operated as a change of property." The proper distinction is illustrated in the case of Allen v. Dundas, 3 T. R. 125, where it was held that payment to one named as executor in a forged will which had been presented and allowed in the prerogative court was a protection against the demand of one who had procured the proceedings on the forged will to be set aside and himself appointed administrator, this upon the ground that the person being dead the court had jurisdiction; but the judge said that if the person was not in fact dead, the whole proceedings would be voidso that the jurisdiction rests upon the fact of death, and this being clearly shown untrue, it must result that the entire proceeding was without jurisdiction and void. For at least it sounds almost absurd to say that any man is to be bound by the judgment of a probate court that he is dead. The argument that the court has jurisdiction to ascertain the fact of death is fallacious. For this must assume that the court may decide the question either way, and if it conclude that the person is not dead, then it has no jurisdiction for any purpose. While the court may hear evidence of the death, the fact is generally assumed, and if the court undertake to put its finding of the fact in the form of a judgment, it gives it no greater validity. This conclusion is sustained by the great weight of authority; the direct question was fully considered in a case precisely similar by the Supreme Court of Massachusetts, and this view held by the unanimous opinion of the court. Jochumsen v. Savings Bank, 3 Allen, 87. The principle is directly involved in the case of Thompson v. Whitman, 18 Wall. 457. By the laws of New Jersey it was made unlawful for any one not at the time a resident or inhabitant of the State to gather clams, oysters or shell-fish in the waters of that State, and the law authorizes the seizure of the vessel and its forfeiture, which may be declared by any two justices of the peace of the county in which the seizure occurred.

The suit was in the United States court against the sheriff who had carried away the vessel; the defense was the judgment of condemnation of two justices of the peace of New Jersey, which judgment recited the fact that the vessel had been seized in their county. This was held not conclusive, and it being shown that the seizure was not in the county, the judgment of con

demnation was granted in two different counties about the same time. Judge Reese said the letters granted in the county other than the county of the intestate's residence were void; other similar cases are referred to in the case of Jochumsen v. Savings Bank, 3 Allen, 87. If the judgment of the probate court as to the residence of the intestate is not free from a collateral attack, it can hardly be said that the judgment of the court as to the death of the party can stand upon a higher ground. In fact, so far as our researches have gone, the case of Rodrigas v. East River Savings Institution stands alone, and even that decision seems to have been rendered doubtful upon a second hearing of the case. See Melia v. Simmons, 19 Alb. L. J. 298. As a further argument against the validity of the administration we need only see to what it would lead. If the administration was valid until revocation, as argued in the present case, then it must result that the decree of the Chancery Court in the bill filed by Whitly to collect these notes was likewise conclusive; for in that view it was a bill filed by one who was for the time being properly authorized to act as administrator to collect assets due the estate, the proper defendants were made, and the court had jurisdiction of the subject-matter, and the decree rendered in the cause must in that view be held conclusive upon all parties. But suppose the decree had been in favor of the defendants in the cause, and no such notes had ever been executed, or that they had been paid, would the complainant in the cause be bound by the adjudication? Is it possible that she could thus lose her property and rights by a proceeding to which she was in no sense a party? The decree was in fact for only part of the debt. Without attempting to further follow the discussion into refinements, it is sufficient to say that it will at last bring us back to the plain common-sense view of the question, to which we think there is no sufficient answer, and that is, that there is no law for administrating upon one's estate until after he is dead, and that no living man is bound by the adjudication of a court that he is dead. It might be different if we had a statute such as exists in Rhode Island, or such as the New York court seems to have construed theirs to be, providing that after an absence for a given time one's estate may be administered as if he were dead, subject only to his right to reclaim the proceeds, in the event he return; even then it would be a question whether this would not be depriving a man of his property without due process of law. See Albany Law Journal of 15th May, 1880, p. 383. But at any rate, we have no such statute. We hold the entire proceedings void. We also hold Whitly, and his sureties on his bond of indemnity, liable to the extent of the penalty for the money received by him. The amount thus realized will be paid to complainant in exoneration to that extent of the trust property. 1 Lea, 586. It appears that some of the persons to whom Whitly distributed the fund have voluntarily paid to complainant part of the amount; an account of this, as ordered by the

chancellor, will be taken, and the amount credited on the decree on the indemnity bond. Under the circumstances we disallow interest during the war, and until 1st June, 1865, in accordance with our holding in similar cases, upon the ground that the parties were for the time separated by the lines of the hostile armies, and occupying toward each other the relation of public enemies between whom commercial intercourse was forbidden. With this modification the decree of the chancellor will be affirmed, and the cause remanded, and the costs of this court divided.

Freeman, J., dissented.

MCFARLAND, J., (upon a petition for a rehearing). We have been asked to rehear this case on account of its novelty. The only additional argument offered is a review of the question in the American Law Review of May, 1880. This article concedes that the weight of authority is in favor of our conclusion, and refers to additional authorities in its support that we have not had access to. Moore v. Smith, 11 Rich. Law (S. C.) 569; Melia v. Simmons. 45 Wis. 334. The author only undertakes to say that something may be said on the other side of the question, and puts forth somewhat doubtingly the suggestion that the jurisdiction does not depend upon the fact of death, but upon the allegation of the fact in the application for letters of administration. If disposed to enter further into the discussion, we think it could be shown that this position is unsound; but we are content to rest our conclusions upon the reasons and authorities already given. The other points in the petition have been fully considered in the foregoing opinion. As to the interest after June, 1865, while it is true that complainant was absent with the notes in her possession, so that they could not have been paid, yet it is not shown that the defendants were ready, or desired to make payment, or that they lost the interest. Petition for rehearing dismissed.

ABSTRACTS OF RECENT DECISIONS.

NOTES OF RECENT DECISIONS.

OFFICES AND OFFICERS WHEN APPOINTMENT COMPLETE-WHEN TERM COMMENCES.-1. Where an office is filled by "appointment by the Governor," the appointment is complete when the commission is signed, and term of office commences from the appointment. 2. Where commissioners appointed by the governor were required by law "within thirty days after their appointment, to meet, take an oath in writing, etc." they were not authorized to proceed with the investigations committed to their charge until they had qualified. Their failure to qualify would have operated as a vacation of their appointment. When they do qualify, they are entitled to their salary. Supreme Court of California. Opinion by McKINSTRY, J.-Ball v. Renfield, 6 Pac. C. L. J. 22.

LIABILITY TO SUPPORT NEEDY PARENTS- COMMON LAW-STATUTE.-There is no common law liability to support needy parents. From the natural duty of

supporting them, a request to supply them with necessaries can not be implied. Lebanon v. Griffin, 45 N. H. 558. Persons of sufficient ability are, by statute, liable to maintain their parents when standing in need of relief. But the statute empowering a town, that performs its duty of relieving such parents, to enforce the liability of the children, does not authorize a volunteer to enforce it. Gen. Stat. chap. 74, secs. 1, 8, 9, 10. Supreme Court of New Hampshire. Opinion by DOE, C. J.-Gray v. Spaulding.

CRIMINAL PROCEDURE-JURY TAKING WEAPONS CAUSING HOMICIDE WITH THEM-EVIDENCE-FOOT PRINTS.-1.It is error for the court to permit the jury on a trial for murder to take with them, into their room when they retired to consider of their findings, the rifle gun and balls which had been exhibited and testified about by the witnesses. 2. It was error not to permit defendant to prove, if he could, his willingness to try his shoe in the foot prints formed upon the ground, and supposed to have been made by the assas sin, and also that he requested the parties having him under arrest to measure his horse's foot and apply the measure to the horse tracks supposed to have been made by the animal ridden by the assassin to and from the place of killing. Court of Appeals of Texas. Opinion by WHITE, P. J.-Bouldin v. State.

CHECK-DEPOSIT IN BANK-ACTION-EVIDENCE. -1. The deposit of funds in a bank forms a sufficient consideration to authorize the holder of a check drawn against such funds by the depositor, to maintain a suit against such bank on its refusal to pay. 2. Where the minutes of the proceedings of a city council are ambiguous, they may be explained by parol testimony. Texas Commissioners of Appeals. Opinion by WALKER, J. First Nat. Bk. v. Randall. 4 Tex. L. J. 43.

DUTY OF PLEDGEE OF SECURITIES TO COLLECT INTEREST DEPRECIATION NEGLIGENCE. - 1. A transferred to B, as collateral, certain promissory notes secured by mortgages. The notes bore interest payable half yearly, and the mortgages contained powers of sale if default was made in paying the interest when due, and also contained a provision that, in case of sale for non-payment of interest, the principal should be due and payable on the day of such sale. A notified B by letter that the power to collect the interest was wholly in B's hands; that B's duty was to collect the interest, if necessary, by sale. and credit A with the collections, and that A would hold B responsible for any neglect. After B's death, A wrote to B's executrix, who was also sole legatee and devisee, to the same effect. Both B and B's representative neglected to collect much of the interest and to enforce payment by sale. By the depreciation of property the mortgages became nearly valueless, and the mortgagors were irresponsible. It appearing that prompt sales would have realized enough to pay the collateral notes in full-on a bill in equity to redeem, and for an account: Held, that B's executrix was responsible for neglecting to collect the interest as it fell due. Held, further, that A was entitled to have his principal debt reduced by the amounts of interest falling due on the collateral notes, whether B and B's representative had or had not collected such interest. Held, further, that although B's executrix was responsible for the interest falling due on the collateral notes, she was not, in the circumstances, responsible for the principal of these notes. Held, further, that the pledgee of a chose in action given as collateral is bound to use reasonable and ordinary diligence in realizing its value, but is not bound to exercise extraordinary care. Hence the pledgee is neither bound to forecast the markets for

the pledgor, nor to watch the markets for the most favorable opportunity to sell the pledge. Supreme Court of Rhode Island. Opinion by DURFEE, C. J. -Whiton v. Paul.

SUPREME COURT OF PENNSYLVANIA.

March-July, 1880.

THEATRE TICKET ENTITLES HOLDER TO WHATACTION FOR EXPULSION OF NEGRO FROM THEATRE -DAMAGES-FORM OF ACTION.-1. A and his wife, persons of color, while in lawful possession of two tickets of admission and reserved seats in defendant's theatre, were refused admission and forcibly ejected from the building by defendant's employees. More than two years afterwards A brought an action of trespass on the case to recover damages. Held, that this action was in the proper form to recover the price of the tickets and the loss occasioned the plaintiff by his wife's illness, including all expenses which he was put to in consequence, these being consequential and not direct injuries. Held, also, where, in the absence of any regulation with reference to color, a colored person lawfully possessed of a ticket for a seat in a theatre for a particular performance is refused admission, the proprietor is liable in damages therefor. 2. A ticket to a reserved seat in a theatre confers more than a revocable license and partakes more of the nature of a lease, entitling the holder to peaceable ingress aud egress, and exclusive possession of the seat during the designated performance. 3. When an act of violence is committed by a servant in the ordinary course of his employment, but not by the direct command nor assent of the master, case, and not trespass, is the proper form of action in which to recover damages against the master. 4. Where a husband seeks to recover damages for an act of violence committed upon his wife, whereby he has lost her company and services and suffered expense for medical attendance, case is the proper form of action. Affirmed. Opinion by STERRETT, J.-Drew v. Peer.

PRINCIPAL AND AGENT-AUTHORITY OF AGENTDUTY OF CREDITOR AS AGAINST SURETY TO REVIVE JUDGMENT-NATIONAL BANK-POWER OF, TO TAKE REAL ESTATE SECURITY-DEPOSITIONS-FORM OF CERTIFICATE OF.-1. Mere forbearance, however prejudicial to a surety, will not discharge him; the failure of a creditor to revive a judgment does not discharge a surety unless there was an express agreement at the time of giving the judgment that it should be kept revived for the benefit of the surety. U. S. v. Simpson, 3 P. & W. 437, followed. 2. Real estate security taken by a National Bank for present or future advances is valid. Union Nat. Bank v. Matthews, 8 Otto, 264, 8 Cent. L. J. 131. followed: All prior decisions of this court in conflict therewith overruled. 3. In 1872 money was loaned by a bank, and a note and confession of judgment, signed also by sureties, were taken by its president; the note was made to "W., Pres't, or bearer." In 1874 W gave a release of liens, signed "W. President," to enable the principal debtor to sell part of his land. In 1876, the note not having been paid, execution was issued against the sureties, was enjoined, and an issue was framed and tried in 1879 between "W, President of the Bank,'' etc., and the sureties, but as if the bank were the real party in interest. W had negotiated the loan, done all the business respecting it, and, by sufferance of the bank, the judgment stood in his name. Held, that the long acquiescence in the acts of W constituted a ratification of them, and that the bank was bound by the re

lease given by W. 4. Depositions were taken, in obedience to a rule of court, in the presence of the parties, and the witnesses were cross-examined. The certificate of the justice read: "I certify that the above witnesses were duly qualified and examined at the time and place stated in the caption before me."' Their admissibility was objected to on the ground that the certificate was improper in not reciting that they were reduced to writing by the justice, nor that they were subscribed in his presence by the parties: Held, (sustaining the ruling of the court below), that it is to be presumed that the depositions were properly reduced to writing and subscribed by the witnesses until the contrary is shown, and that they were therefore properly received; but held, further, that the plaintiff in error is to be confined to the objections made in the court below, and not having then objected to the absence of the signature to one of the depositions, could not claim for that defect consideration here. Reversed. Opinion by TRUNKEY, J.Winton v. Little.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

July, 1880.

LAND TAKEN FOR PUBLIC USES LIABILITY OF OWNER FOR SUBSEQUENT BETTERMENTS. - By the provisions of the act of Congress of March 3, 1873, and of the statute of this Commonwealth of 1873, ch. 189, the title to land taken for the post-office in Boston does not vest in the United States until the assessment and payment of the damages thereby occasioned to the owners of the land. But the title which is purchased by and vests in the United States is the title as it existed when the petition for the valuation of the land was filed by the agent of the government, and the measure of damages to be awarded to the owners is the value of the land at that date. The owners of the land, therefore, can not be charged with betterments or other taxes imposed after it has been designated and set apart for the public use, and while they can not enjoy or improve, nor obtain compensation for any increase in its value. Opinion by GRAY, C. J.-Sherwin v. Wigglesworth.

TRUSTEE MORTGAGE LIABILITY OF CESTUI QUE TRUST.-The defendants made an arrangement with one D to buy a parcel of land, to take the deed in his own name, and to execute a declaration that he held it in trust for the defendants; to pay a part of the consideration with money furnished by the defendants, and to give his own note and mortgage back for the balance thereof, all of which was done. After a foreclosure of the mortgage, under the power of sale therein contained, and the application of the proceeds of the sale, there remained a balance due on the mortgage note, to recover which an action was brought against the defendants. Held, that the relations between D and the defendants were not those of principal and agent, but of trustee and cestuis que trust; and that such relation, in the absence of fraud, would not render the cestuis que trust liable to suits at law upon contracts made by the trustee in his own name. Opinion by MORTON, J.-Everett v.. Drew.

BREACH OF PROMISE OF MARRIAGE-RULINGS.In an action for breach of promise of marriage, rulings requested by the defendants, which assumed that he would have the right, without the consent of the other party to the contract, to break off the engagement, without the liability to make

any compensation or indemnity, if he should come to the conclusion that the proposed marriage would not tend to the happiness of both parties, were held to have been properly refused in the form presented, as it would be equivalent to saying that the defendant had the right to recede from the contract, if he should be disinclined to fulfil it. Opinion by AMES, J.-Coolidge v. Neat.

FORGERY BY ADDING TO GENUINE INSTRUMENT -VARIANCE.-Where an indictment charged that the defendant "did falsely make, forge and counterfeit a certain false, forged and counterfeit accountable receipt for money," and the evidence at the trial was that the defendant inserted additional words and figures in a genuine receipt for money paid to another person, by which the amount named in the original receipt was increased, it was held, that there was no material variance between the allegation and the proof. Opinion by COLT, J.-Com. v. Boutwell.

INTEREST-STATUTORY RATE MATURITY OF CONTRACT.-Under the statutes of 1885, ch. 56, sec. 1, providing that the legal rate of interest in this Commonwealth shall be six per cent. a year, and by sec. 2 that it shall be lawful to contract for any rate of interest, "provided, however, that no greater rate of interest than six per centum per annum shall be recovered in any action, except when the agreement to pay such greater rate of interest is in writing, where the parties have made a written agreement for the payment of a greater rate of interest yearly than six per cent., the creditor is entitled to receive the stipulated rate of interest so long as the debtor has the use of the principal; and in action upon the contract the creditor is entitled to recover interest at that rate, not merely until the time when the principal is agreed to be paid to him, but until it is actually paid, or his claim for principal and interest jndicially established. Opinion by GRAY, C. J.-Union Inst. for Savings v. Boston.

PUBLIC OPINION.

A LEGAL DILEMMA.-The St. Louis Globe-Democrat of the 14th inst. says: At last reports the engineers of the Hudson River tunnel were about three weeks further off from the bodies of the victims of the accident than they were when the accident occurred, and it may be taken for granted that the company does not want to find the bodies, and is not going to find them if it can help it. As long as there are no bodies to "sit on" no coroner's inquest can be held, no verdict can be rendered, no censure can attach to any one, and no punishment can be inflicted on any one. If any fact can be established by evidence, one would suppose that it was the fact that some twenty odd victims were lying under the mud and water of the bungling company's excavation. Yet in law that fact can not be proved; no one can lodge a complaint or make a charge, because no beginning can be made. The case is in the coroner's hands, and it must stay in the coroner's hands until he holds the inquest-that is, until the bodies are recovered, the chances being that the bodies will never be recovered. This is "Crowner's quest law, "but the law of Christian burial with regard to one who has wilfully sought her own salvation, even when expounded by the grave-digger in Hamlet, is hardly more absurd than the law of murder which requires the corpus deiicti or body of the victim as a condition of proving guilt. If the Hudson River tunnel deaths had resulted from wilful malice instead of incurable stupidity, the crime

would be equally beyond the purview of the law, as it is held that no murder can be proved unless the body of the victim can be produced before a legal tribunal. Such absurdities and inconsistencies are gradually disappearing from the codes of the States, but they survive with all the tenacity of all abuses. Under the old doctrine requiring the corpus delicti, a man might throw his victim over Niagara Falls in the sight of a thousand persons and go unpunished if the waters refused to give up their dead. Such a case would be an extreme one, but it would differ in degree only and not in kind from the New York case, where the coroner's inquests are postponed to await the arrival of remains that are never going to come.

THE DE JARNETTE CASE.-The New York Daily Register of the 15th inst. observes: The young man who shot his sister in a house of ill-fame in Danville, Va., has been found guilty of murder in the first degree, but recommended to mercy. The circumstances appear to be these: Mollie De Jarnette, a young girl, living out as a domestic, was seduced and betrayed under promise of marriage. It was the old story. She could no longer hold up her sad head in the respectable circle of which she was a member. They turned their backs upon her, and she became what is called an abandoned woman. When people speak of an abandoned woman, the first question should be, Who abandoned her? But she concealed the name of her betrayer, unwilling to affix to his name the stigma of such a complaint. After eighteen months of distress, she, in desperation, betook herself to a house of ill-fame, where she fancied she should find a less intolerable life. A week there brought such distress that she resolved to make a last appeal to her brother, who was an intelligent young man, a station agent and telegraph operator of a neighboring town. Her letter, expressing penitence and a prayer for forgiveness, seems to have been the first intimation he had of the lamentable refuge she had sought. Immediately after reading it, he took his revolver, went to the house, gained admittance and entered her room, and with six shots brought her mortally wounded to the floor. He made no attempt to disguise the facts or evade the responsibility, but declared that he had done it to make a just example of her sin and her shame. main question was whether such an impulse to the killing should affect the degree of the crime. Some exceptions on the trial may lead to a review of the conviction. Meanwhile the main question is exciting general interest and attention. At first thought there appears to be a great palliation, if not provocation, in such circumstances. But when we analyze the motive, there seem to be two principal elements in it, the separation of which may throw some light on the question. We may justly imagine that the prisoner's impulse consisted partly of his sense of the girl's ill-desert, and partly of his sense of the shame brought upon himself and the family by her fall and her abandoned life. The first of these motives is simply the ill-desert of a prostitute, and can not justify the shooting unless it would justify his killing any prostitute on sight as a person not fit to live. The second of these motives is the one on which the claim of palliation must rest, and it is a very slender foundation for it. If the disgrace that is brought on one by the open shame of a relative is a motive for killing the latter which the law can recognize as mitigating guilt, this would concede to it a respect far out of proportion to that conceded to other alleged provocations, aud it would be a dangerous invitation to take the law into one's own hands. The two motives seem none the more available, because united in this case in one impulse.

The