an erroneous impression of title, is the value of the coal before separation from its bed, without allowance for the expense of severing. This is the same doctrine held in Barton Coal Co. v. Cox, 39 Md. 1; S. C., 17 Am. Rep. 525; and Illinois, etc., R. and Coal Co. v. Ogle, 82 Ill. 627; S. C., 25 Am. Rep. 342; but cannot be considered the prevalent doctrine. The court in the principal case said: "We have examined all the cases which have been cited in the argument, and have discovered no sufficient reason for departing from the decision so recently made by this court; nor have we seen any good reason to doubt that the rule then announced is upon the whole a sound and salutary one, which, while it awards no more than a just compensation to the party injured, will, as said by Baron Parke, 'tend to prevent trespasses of this kind.' We think no real distinction can be drawn between this case and that of the Barton Coal Company. There this court held the rule applicable, though the defendant was not a willful trespasser, but 'dug the coal without knowing that it was trespassing upon the property of the plaintiffs, but believing it was its own coal.' It is said that in that case there was no dispute or question about boundaries, and that it was negligence in the defendant to go beyond its own lines. But the trespass was committed under ground, where the lines were not easily ascertained. Trespasses on the land of another, if not willful, always imply some degree of negligence. In this case the defendant's excuse is, that it claimed to be the owner of the land. But it has been shown by the proof and by the verdict that its claim was not well founded. As said in Maye v. Tappan, 23 Cal. 306: | 'Where a party has the means of ascertaining the dividing line, he is guilty of negligence in not ascertaining its location.' In this respect, therefore, this case is not to be distinguished from that of the Barton Coal Company. Considering that case as decisive of the present, we have not thought it necessary to make further reference to the authorities, or to discuss the proposition there decided over again." Robinson, J., dissented in a learned and able opinion.

In Dinsmore v. Nashville, etc., Railroad Co., U. S. Circuit Court, District of Kentucky, May, 1880, 10 Cent. L. J. 468, it was held that a common carrier is as much bound to carry for another common carrier as it is for others. Therefore, a railroad company cannot refuse to carry for an express company, nor to extend to its messengers and agents the facilities requisite to the prosecution of the express business. The court said: "If express carriers were ejected from the railroads, the latter could not be compelled to supply their places, and, consequently, the country would be without such facilities unless the railroad companies would exceed their corporate obligations and voluntarily undertake to do what they are not legally required to do, and to do many things which under their charters they have no right to do. As they are under no legal obligations to render such accommodations to the public, and could not be compelled to render them, they could, after

ejecting the express carriers, monopolize the business, dictate oppressive rates, while affording less safety, celerity and convenience to customers as a substitute for the expeditious, reliable and necessary services of expressmen. The country would be dependent upon an illegal assumption of authority by railroads, an assumption in some respects in contravention of public policy, because it would enlarge their power and influence for controlling the business of the country, which, to say the least, is already sufficiently formidable. But it is enough to say that railroads were not created to do an express business, are not suited to such service, possess no legal capacity to engage in it, cannot be required to undertake and perform it, and I may add, ought not to be permitted to engage in these branches of the express business, ultra vires their corporate powers, if they would; and as they are not legally bound to render express facilities to the country themselves, can they, by excluding the expressmen, deprive the public altogether of this necessary facility? Or else extort such concessions as the petty resentment or cupidity of their managers might prompt them to exact? We think not. On the contrary, if the express business, as we have hereinbefore asserted, has become a convenience to the general public, we think it the duty of all railroad companies, through their managers, and in the exercise of the trusts confided to them for the public good, to make proper provision for everybody wishing to carry express matter over their respective roads, as, in doing so, they would be accommodating the public, and fulfilling to that extent, the objects and purposes of their creation." No authorities are cited, and so far as we know, the question is new.

In Sawyer v. Gerrich, 70 Me. 254, the plaintiff's mare was served by the defendant's stallion for the purpose of raising a colt, whereupon the plaintiff agreed in writing to pay the defendant twenty dollars twelve months after date if his mare proved with foal, "colt holden for payment." Held, that the written agreement created a contract-lien in the nature of a mortgage. The court said: "It would seem that if the defendant had sent his mare to the plaintiff for the purpose of raising a colt from the latter's stallion, the defendant would have had, at common law, a lien upon her for the use of his horse, so long as he retained possession of the mare. Scarfe v. Morgan, 4 M. & W. 270; and perhaps upon the foal since partus sequitur ventrem, 2 Bl. Com. 390; Allen v. Dinsmore, 55 Mc. 113." It is well settled that the owner of personal property having a potential existence may sell it. Grantham v. Hawley, Hob. 132; 2 Kent's Com. 468 and note g, 492 note 1, c.; Farrar v. Smith, 64 Me. 77. And within this principle, the owner of a mare may, during gestation, sell her future offspring, which will vest in the vendee when parturition takes place. McCarthy v. Blevins, 5 Yerg. 195." "Our opinion is that the contract was in the nature of a mortgage; and the case not distinguishable in principle from Oakes v. Moore, 24 Me. 214, 220." See Moore v. Byrum, 10

effect of the testimony, and directed the jury that all the declarations of the deceased made before she was informed she could not live, in which the defendant's name was connected, could only be considered as evidence tending to show that at that time the deceased had formed the purpose to go to the defendant to have an abortion produced upon her, but was not evidence that the defendant actually produced the abortion or had engaged to do it. The court on review said: "The first inquiry is, whether the declarations of deceased to Mary Erickson were admissible for the purpose of showing her intention, and as their scope and effect were restricted by the court, we are of opinion that they were. They constituted a part of the res gesta, were contemporaneous with the main fact under consideration, and were so connected with it as to illustrate its character. 1 Greenl. Ev. 108. It was certainly competent to prove that the deceased went to the house of the defendant at the time it was charged in the information the abortion was produced. Upon the authorities, her intent or purpose in going there might be shown by her declarations then made or previously made; because such declarations became a part of the res gesta. For it is evident the declarations were connected with the act of her going to the defendant; were expressive of the character, motive or object of her conduct; and they are to be regarded 'as verbal acts indicating a present purpose or intention, and therefore are admitted in proof like any other material facts.' 1 Greenl. Ev., supra; Insurance Co. v. Mosley, 8 Wall. 397; Enos v. Tuttle, 3 Conn. 27; Inhabitants of Corinth v. Inhabitants of Lincoln, 34 Me. 310; Lund v. Inhabitants of Tyngsborough, 9 Cush. 36; Nutting v. Page, 4 Gray, 581; State v. Howard, 32 Vt. 380; Moore v. Meacham, 10 N. Y. 207; People v. Davis, 56 id. 96. It is obvious that the mere act of the deceased going to defendant's house was equivocal; it might be innocent or not; it might warrant the inference that she went for proper treatment of some ailment; the declarations would render her motive clear and intelligible. They therefore seem to us as falling under the denomination of the res gesta, and were admissible as original evidence as distinguished from hearsay.

"In State v. Howard, supra, the declarations of the deceased, Olive Ashe, as to the purpose of the journey in going to the defendant's, were held by the court to be admissible as part of the res gesta. Upon this question, Redfield, C. J., observes that 'the mere act of going was equivocal; it might have been for professional advice and assistance. The declarations were of the same force as the act of going, and were admissible as part of the act.' In People v. Davis, when the deceased came home, in answer to inquiries from her step-mother she made statements telling what had been done to her by Dr. Crandall at his office, and how he did it, exhibiting certain medicine which she said the doctor gave her, and stated what he told her as to taking it when her pains came on. The court held these declarations incompetent because they were merely narratives of past occurrences, did not become a

part of the thing done at the doctor's office, and were therefore no part of the res gestœ. But the court say: 'Had it been shown that the medicine was to be taken to aid in producing the miscarriage, what was said in respect to it would have been admissible.' P. 103. The conclusion which we have reached in view of all the cases upon the subject is, that the declarations of the deceased made to the witness Mary Erickson were so connected with her act of going to the defendant's as to constitute a part of that act, and were admissible as explanatory of that act. See Regina v. Edwards, 12 Cox's Cr. Law Cas. 230."

This case seems to us, like most compromises, exceedingly weak. In saying "such declarations became a part of the res gesta," the court beg the whole question. In deciding that the declaration of the intent to go to the defendant's to have him commit the crime was admissible to show the purpose of the deceased, but not to show that the defendant carried it out, the court clearly admitted irrelevant evidence, for that intent of the deceased was quite outside the issue. The issue was whether the prisoner committed the crime. If he did, the intent of the deceased was immaterial; if he did not, it was equally immaterial. In any light the evidence could only tend to convict the prisoner by the declaration of a purpose on his part which may never have been carried out. The cases cited are very inconclusive. The citation from New York is a mere dictum, and not one of the powerful authorities which we have cited to the contrary was produced.

None of the foregoing cases were alluded to by Lord Cockburn in his discussion with Mr. Taylor. It would seem that if the decision in the Edwards case is sound, that in the Bedingfield case cannot be, for the declarations in the former were much more remote than in the latter. It need not be conceded that if the former case is law it goes far to sustain the ruling in the Hayden case, for it simply admitted past threats, while in the latter case evidence was admitted of what had not happened and might not happen. The Hayden case, too, is inconsistent with the Wainwright and Pook cases in England. The Dula, Williams, Kirby and Cheek cases seem to us to lay down the proper doctrine. It will be noticed that all the contrary cases which we have cited are distinguishable frrom the Hayden case, in that the declarations received did not in any instance convey an intimation of criminal intent or motive on the part of the prisoner. We regard the Hayden ruling as unsound and dangerous, and cannot see that it is supported by any authority in this country, further than to the extent of the intended meeting with the prisoner, and even as to that extent it is strongly opposed to the Dula, Williams, Kirby and Cheek cases. On principle, the admission of antecedent declarations is much more dangerous than the admission of subsequent or contemporaneous declarations. The latter are generally attended by corroborative circumstances, and are of a character appealing more directly to the conscience; while the former may be entirely false or gratuitous, or if made in

good faith, may not be supported by subsequent facts. It is quite possible, for example, that Hayden did not meet Mary Stannard in the woods, although she may have expected him. It is quite possible that whether he did or not, he had never agreed on the meeting for the purpose indicated by her. On the other hand, if she had been found there alive, there would have been some show of reason for admitting her contemporaneous declaration that Hayden had tried to kill her to conceal her pregnancy. At all events, both on authority and principle, if her previous declaration that she was going to the woods, or was going to the woods to meet Hayden, was competent, her accompanying declaration of the motive and purpose of the meeting was clearly incompetent. People cannot be put to death upon hearsay evidence before the fact.

TREATMENT OF INSANE CRIMINALS.

MONG the many legal problems which the future

is to solve there is one which should be, and I think will be, solved in the near future. It is the problem of the treatment of insanity, in cases where the criminal law has been violated. Properly speaking there can be no such thing as a crime committed by an insane person. But there are persons whom, for convenience sake, we call insane criminals; because they have violated laws which would render those who are responsible for their acts amenable to punishment. What shall be done with this class the class of insane criminals?

A few years ago Dr. Henry Maudsley, of England, published his now well-known treatise, entitled "Responsibility in Mental Disease." With the author's statements concerning the causes of insanity, the ways in which it is indicated, and its effect upon the will, I have no quarrel. Any criticism in this direction should come from a physician, and furthermore, a physician who has made a most thorough study of the subject of insanity. But it is one thing to state facts and quite another thing to draw conclusions from them. Froude, in his History of England, has shown his ability to do the former and his inability to do the latter. In this respect Dr. Maudsley resembles Froude. We may admit his facts, but deny his conclusions.

For his conclusion is, in substance, that in every case of alleged insanity it belongs to the physician to pass judgment, or in other words, to pronounce for or against the existence of insanity; that if the physician finds that the disease of insanity exists, there should be no infliction of capital punishment, or indeed, of any kind of punishment, but a simple confinement of the patient in order that the disease may receivo proper treatment; that it belongs to the physician to terminate this confinement at any moment, by declaring that a cure has been effected, and that on the announcement of a cure by the physician, the patient should be discharged. Now I take exception to the last part of this conclusion, that on the announcement of a cure by the physician the patient should be discharged.

The Revised Statutes of New York provide that "no act done by a person in a state of insanity can be punished as an offense; and no insane person can be tried, sentenced to any punishment, or punished for any crime or offense while he continues in that state." The latter part of this section has no application to the subject under consideration. A person who becomes insane after the commission of a crime may be, and undoubtedly should be, though in reality he selde is, punished, upon his recovery. I wish to speak

merely of that growing class of persons, who, having committed some act which would subject a sane person to punishment, seek to avoid responsibility by alleging that at the time of the commission of the act they were not sane.

The laws of New York, relating to this subject, are in a condition which must be unsatisfactory to all except the "insane criminals" themselves. I quote the pertinent provisions:

"When a person shall have escaped indictment or shall have been acquitted of a criminal charge upon trial on the ground of insanity, the court being certified by the jury or otherwise of the fact, shall carefully inquire and ascertain whether his insanity in any degree continues, and if it does, shall order him in safe custody, and to be sent to the asylum. If such person be sent to the asylum, the county from which he is sent shall defray all his expenses while there, and of sending him back, if returned; but the county may recover the amount so paid from his own estate if he have any, or from any relative, town, city or county that would have been bound to provide for and maintain him elsewhere." Laws of 1842, ch. 135, § 31. See, also, Laws of 1874, ch. 446, § 22.

"Persons charged with misdemeanors and acquitted on the ground of insanity may be kept in custody and sent to the asylum in the same way as persons charged with crime." Id., § 34.

"A patient of the criminal class may be discharged by order of one of the justices of the Supreme Court, or a Circuit judge, if upon due investigation it shall appear safe, legal and right to make such order." Id., $ 42.

"Whenever any person in confinement under indictment for the crime of arson, murder, or attempt at murder, or highway robbery, desires to offer the plea of insanity as a general traverse and his whole defense to such indictment, he shall present such plea at the time of his arraignment, and at no other stage of the trial but this, shall such plea or defense be received or entertained by the court; and the court before whom such trial is pending shall have power, with the concurrence of the presiding judge thereof, to appoint a commission to examine such person and to inquire and report to the court aforesaid, upon the fact of his mental sanity at the date of the offense with which he stands charged. The commission aforesaid shall institute a careful investigation, call such witnesses as may be necessary and for that purpose is fully empowered to compel the attendance of witnesses.

"Upon the report of said commission, if the court before whom such indictment is pending shall find that such person was insane and irresponsible at the date of the offense with which he stands charged, the court aforesaid shall order his removal to some State lunatic asylum, there to remain for observation and treatment until such time as in the opinion of a justice of the Supreme Court it is safe, legal and right to discharge him." Laws of 1874, ch. 446, § 30.

"Whenever any person accused of the crime of arson, murder, or attempted murder, or highway robbery, shall have been acquitted upon trial upon the ground of insanity, the jury shall bring in a special verdict to that effect and so state it in their finding: and the court before whom such trial is had shall order such person to be committed to some State lunatic asylum, there to remain for observation and care until such time as in the judgment of a justice of the Supreme Court, founded upon satisfactory evidence, it is safe, legal and right to discharge him." Laws of 1874, ch. 446, § 31, as amended by Laws of 1875, ch. 574, § 4.

"Whenever any insane person in confinement under indictment for arson, murder, or attempt at murder, or highway robbery, or who has been acquitted thereof on the ground of insanity, and has been committed to

some State lunatic asylum, pursuant to the provisions of the preceding sections, shall be restored to his right mind, it shall be the duty of the superintendent of such asylum to give notice thereof to the State commissioner in lunacy, who shall thereupon inquire into the truth of such fact, and if the same shall be proved to his satisfaction he shall so certify it under his official hand and seal to a justice of the Supreme Court of the district in which such asylum is situated, who shall thereupon, and upon such other facts as may be proven before him, determine whether it is safe, legal and right that such party in confinement as aforesaid should be discharged." Laws of 1874, ch. 446, § 33, as amended by Laws of 1875, ch. 574, § 5.

I have made these quotations at length - possibly too great length — in order to show clearly the present condition of the laws of New York on this subject. It will be seen that the idea of Dr. Maudsley is almost completely realized. Punishment or immunity hangs upon the lips of the physician. Where the charge is arson, murder, attempted murder or highway robbery, the accused may escape trial altogether. He has simply to offer the plea of insanity at the time of his arraignment, thus securing an extra-judicial examination by a commission, and if on the report of the commission the court finds that he was insane at the date of the offense, it must "order his removal to some State lunatic asylum." There he remains until he can satisfy some justice of the Supreme Court that "it is safe, legal and right to discharge him." Where the accused is acquitted upon trial on the ground of insanity, the proceeding is substantially the same. The doors of an insane asylum open to receive him and close upon him for a time; then, at the bidding of a justice of the Supreme Court, they open, and he walks out. In every case the keys which unlock the doors of State lunatic asylums are held by the justices of the Supreme Court. Undoubtedly, if there are to be such keys, they could not be placed in better custody, for though it is reasonably certain that the justice will accept the opinion of the physician, yet it is well to give the judiciary some part in the proceeding, and to add its voice to that of the physician in a question which affects the public safety. My objection is not to the person in whom the right to discharge insane criminals is vested, but to the existence of any such right, in case of grave offenses, and particularly where the offense is homicide.

It may be that I have done Dr. Maudsley injustice. I confess that in stating his conclusion to be that insane criminals should be discharged when a physician has declared them cured, I gave an impression derived from the general tone of his work rather than from any express declaration to that effect. Indeed, in one place he uses language which seems to warrant a very different conclusion, as the following quotation will show:

"The argument in favor of hanging madmen in order to deter others from crime must then be pronounced utterly baseless; the execution of them would be of use only if it deterred persons from going mad, which no one had asserted that it does; but the argument that it is necessary to execute them in order to protect society would be incontrovertible if society had no other effectual means of protecting itself. But this is not so; it has the power of protecting itself effectually, and at the same time of inflicting upon the insane wrong-doer what he assuredly regards as a heavy punishment, by shutting him up in a lunatic asylum. There need be no fear that the prospect of such a fate would be less deterrent to him than the prospect of death on the scaffold.

"It will be observed that I have spoken of the punishment of death as one which should never be inflicted upon an insane person; it is another question whether

such a person should not be otherwise punished under any circumstances. Abolish capital punishment and the dispute between lawyers and doctors ceases to be of practical importance."

If this language is to be construed as an assertion that imprisonment for life should be substituted for capital punishment in cases of insanity, and that that imprisonment should be unaffected by any announcement of a cure, then I, for one, have no further criticism to make. The question of insanity should doubtless be submitted to the physician, who is the only person competent to give it a proper consideration. The ordinary jury is not competent to pass upon that question. There is danger that it may ignorantly convict an irresponsible person. But if it be right to constitute the physician sole judge in a question of insanity, it is no less right to restrict him to a simple determination of that question, and to refuse to listen to him when he declares the disease eradicated and recommends the liberation of the patient. This last point I do not understand Dr. Maudsley to concede.

It will be remembered that I am now speaking of the treatment of those unfortunates, whose insanity has culminated in the killing of a fellow being. Of course I would not advocate the life-long imprisonment of an insane person for an offense which would only subject a sane person to imprisonment for a term of years. Why then should he, whom an insane impulse has driven to the commission of homicide, be deprived of liberty till death? For an all-sufficient reason: the safety of society demands it. Let it be admitted that a certain act is essential to the protection of society and all argument as to its propriety is at an end; it becomes imperative. It therefore only remains to show why the safety of society requires that the subjects of homicidal mania should be kept in confinement during life.

If the time ever comes when the physician can say of the person whose insanity has led him to take human life: "This man is completely cured. There will never be a recurrence of the deed. I answer for it;" there will then be reason for insisting that recovery from insanity shall bring release from imprisonment. But the physician of the present day is not able to make this declaration. Dr. Maudsley himself, in commenting on a celebrated case, says: "Another lesson which may be drawn from this case is one which sad experience of homicidal mania has often taught, namely, the exceeding danger of a recurrence of the attack. One can hardly ever say of a person who has once labored under it that he has recovered entirely, so sudden, unexpected, convulsive may be the outbreak of a paroxysm." This statement is corroborated by other distinguished physicians and experts on the subject of insanity. It is therefore safe to affirm, on such testimony, that for him who has once insanely killed or threatened to kill, such a thing as complete recovery is in the last degree problematical if not utterly impossible; and that the safety of society can be adequately secured only by confining for life the sufferer from homicidal mania.

This then is the conclusion. The plea of insanity, in cases of homicide, should be an application for a life lease in a lunatic asylum; and the granting of the application should follow the success of the plea. There could be no such thing as pardon, for no crime would have been committed. Moreover, since the liberation of the insane sufferer would be dangerous to the public, the right to discharge should not be vested in any one. He who offers the plea of insanity should expect to take a final, irrevocable farewell of all society except that of an insane asylum.

I do not see how this conclusion can be avoided. Those whom the plea of insanity saves from the gallows may be divided into two classes-those whose