road itself is a signal of danger to all those about to cross it; and travellers crossing the rails are bound to exercise reasonable care, having regard to the nature of the crossing, for their own safety and protectiou. They should, in all cases, before proceeding to cross, carefully look and listen, to ascertain whether a train is approaching; and the failure on the part of those in charge of the train to give the usual or required signals, such as the blowing of the whistle or the ringing of the bell, will not excuse or justify the traveller on the country roads in attempting to cross a railroad track without the exercise of that reasonable precaution of looking and listening for the approach of a train. And if the experiment is made without such precaution, the party acts at his peril; and in default of this precaution, if an accident occurs by a collision with a passing train, the traveller must be held to have so far contributed to his own misfortune as to preclude him the right to recover against the railroad company. This is the established doctrine by the great weight of authority; and a large number of the decisions to the extent of holding that it is incumgo bent upon the traveller, at ordinary road crossings, to stop, look, and listen, before attempting to cross the rails; and if he fail to observe this precaution, he forfeits all right to recover for injuries received by collision. This precaution is not only reasonable and proper to be observed on the part of the traveller on the public roads, crossing railroad tracks, for his own safety, but it is equally necessary for the safety of the multitude of the people riding in the railroad trains, liable to be killed by collision of the train with obstacles on the track. Hence courts have been strict and rigid in maintaining the rule, requiring care on the part of those crossing railroad tracks. Of the many decisions made upon the subject we may refer to the following: Ernst v. Hudson R. R. Co., 39 N. Y. 61; Wilcox v. Rome, etc., R. Co., id. 358; Beisiegel v. N. Y. C. R. Co., 40 id. 9; Havens v. Erie R. Co., 41 id. 296; Baxter v. Troy & Boston R. Co., id. 502; Butterfleld v. West. R. Corp., 10 Allen, 532; Penn. R. Co. v. Beale, 73 Penn. St. 504; Penn. R. Co. v. Weber, 76 id. 157; Telfer v. North. R. Co., 30 N. J. 188; Bellefontaine R. Co. v. Hunter, 33 Ind. 335; Railroad Co. v. Houston, 95 U. S. 697, 702. But without going the extent of many of the authorities and laying it down as an unqualified rule, applicable to all cases, that the traveller must actually stop before attempting to cross the rails, to look and listen, we hold, with the concurrence of all the authorities, that he must, at least, exercise the reasonable precaution of looking and listening before venturing over the rails; and his failure to observe that precaution is negligence per se; and if he attempts to drive a vehicle across the tracks in view of an approaching train, his conduct is worse than negligent, it is simply reckless. Railroad Co. v. Houston, supra; Telfer v. Northern R. Co., supra; Dascomb v. Buffalo, etc., R. Co., 27 Barb. 227. (3) While it is natural, and as a general rule rational, to presume that a party acts from incentives of self-preservation, this presumption can only be indulged in the absence of proof to the contrary. To instruct the jury that they may, in considering the whold case, "infer the absence of fault on the part of the plaintiff, from the known disposition of persons to avoid injuries to themselves," in the presence of testimony that tends strongly to show the existence of fault, is tantamount to instructing them that they may conclude as they please; that they may find upon presumption and put the evidence aside. There are cases where this presumption may be invoked, and the reports show many instances where it has been done. North. Cent. R. Co. v. Geis, 31 Md. 357; Railroad Co. v. Gladmon, 15 Wall. 407; Oldfield v. N. Y. & H. R. Co., 14 N. Y. 310; Penn. R. Co. v. Weber, 76 Penn. St. 157; Cleveland &

Pittsburg R. Co. v. Rowan and Wife, 66 id. 393. But au indiscriminate use of the instruction given in this case cannot be otherwise than misleading in many cases; and we think the present not a case where it was proper to be given. Maryland Central R. Co. v. Neubeur. Opinion by Alvey, C. J. [Decided June 9, 1884.]

NEW JERSEY COURT OF CHANCERY ABSTRACT.*

RECEIVER-CONTRACT WITH-SUCCESSOR NOT LIA BLE-CLAIM AS AGAINST FUND. The complainant made a contract with the receiver of a railroad (the defeudant's predecessor) to remove the coal, ashes and cinders from a specified ash-pit on the railroad, and to have therefor the coal, ashes and cinders so removed. He alleges that the former receiver refused to allow him to perform the contract, and that he thereby sustained great damage. Held, on demurrer, that this court would entertain jurisdiction of the suit on the ground that the contract having been made with a former receiver, the present receiver, the defendant, cannot be sued thereon at law, and the claim is against the trust funds of the railroad company, which are still under the control of this court. When damages are sustained by reason of the negligence of a receiver's employees, without personal fault on his part, in matters necessarily or properly committed to them in the management of the trust property, as, for example, in operating railroads, the damages which may arise from the negligence or misconduct of such employees, without his participation therein, are, as between the receiver and the trust estate, to be paid, not by him out of his own money, but out of the trust property. If this is the rule as to torts, it must be equally so also in regard to contracts. Where the receiver's subordinates enter into a contract in the course of their management of the business intrusted by him to them, and damages arise from their breach thereof, those damages, as between the receiver and the trust estate are to be paid out of the latter. Suits for damages in either of the cases named are to be regarded as in the nature of proceedings in rem against the trust estate. In Davis v. Duncan, receiver (U. S. C. C.), 23 Law Reg. (N. S.) 582, it was held that the discharge of a receiver of a corporation by the court, and the restoration of the property to the corporation, without any reservation of jurisdiction as to existing rights of action, discharges the receiver and the property from liability to suit for injuries inflicted through the negligence of agents or employees of the receiver. Were the complainant in this suit to bring suit at law against the late receiver's executors to recover the damages which he claims, it is most manifest that they would, if the action could be maintained against them, have recourse to equity to protect his estate against being compelled to pay the damages, and that equity would protect it accordingly. Unless this be so, who would accept an appointment to the office of receiver of a great business corporation, especially a railroad company, and be liable in his own estate for the consequences of the neglect and misconduct of his numerous employees, in whom he must necessarily confide in the discharge of duties and the transaction of business of the trust, which it is impossible for him to do himself, or even to superintend? In Palys v. Jewett, 32 N. J. Eq. 302, the appellate court found a scintilla of jurisdiction for equity in the fact that it is necessary to ask its leave to bring an action at law against the receiver, and that such permission had been sought and denied, and the parties had thereupon submitted *To appear in 39 N. J. Eq. Reports.

themselves to the jurisdiction of this court. In this case, where there is no remedy at law, and the complainant prays relief from this court in view of the fact, and on the ground that it has control over the trust fund, and can pay him his damages therefrom, I cannot but conclude that this court has jurisdiction. Of course it will be its'duty in every such case to see whether the contract was such a one as this court, having regard to the interest of the trust, and the extent of the power of the receiver to bind it, would have enforced had the complainant applied for the purpose when it was broken, and if it finds it to have been such, and that the breach was without adequate excuse, it will do in the premises what equity and good conscience require. Lewin Trusts, 415. Kerr v. Little. Opinion by Chancellor.

WILL-REMAINDER-LIFE ESTATE.-A non-resident testatrix gave all her estate to her husband for life, "and in the event of his decease, and not till then, to be divided between my step-children," John, William, Julia and James, "or their heirs." William died in the testatrix's life-time, intestate, and having never been married. The property of the testatrix was all personal. By the statute of distributions of William's domicile, his father was entitled to his personal estate. Held, that at testatrix's death William's father became absolutely entitled to the estate in remainder given to William, notwithstanding the fact that he was by the will also entitled to a life estate therein. Bullock v. Downes, 1 Hawk. Wills, 92, 94, 99. Hard v. Turnure. Opinion by Chancellor.

ARBITRATION AND AWARD-LIMITED TO, MATTERS SUBMITTED PARTNERSHIP ·SURVIVING PARTNER RESISTING LAWSUIT.-An award cannot be extended beyond the things submitted. Caldw. Arb. 321. And even if the language of the submission is broad enough to cover a claim subsequently sought to be enforced, yet if it is clearly made to appear that the claim was not before the arbitrators, and that they did not consider it, it has been held repeatedly that the award will not bar it. King v. Savory, 8 Cush. 309; Webster v. Lee, 5 Mass. 334; Hodges v. Hodges, 9 id. 320; Smith v. Whiting, 11 id. 445; Bixby v. Whitney, 5 Me. 192; Buck v. Buck, 2 Vt. 417. (2) A surviving partner who, in good faith and under an honest belief that he has a good defense, resists by litigation, but unsuccessfully, the collection of a claim against the partnership estate, will be entitled to contribution for the reasonable expenses of the litigation as part of the expenses of winding up the partnership affairs. Lee v. Dolan. Opinion by Van Fleet, V. C. [See 87 N. Y. 599.]

CRIMINAT, LAW.

JOINDER OF OFFENSES-WHEN ELECTION NOT COMPELLED-INTENT-PRESUMPTION.-An "assault with intent to murder," and an "assault with intent to do great bodily harm, less than the crime of murder," may be joined in the same information in different counts. It is difficult to give a satisfactory reason why these two offenses may not be joined in the same information in different counts. Under the first count the defendant is charged with an intent to do the greatest bodily harm possible, and in the second with the intent to do bodily harm, amounting to an offense greater than a misdemeanor, and less than murder. In both cases the offenses charged are of the same char. acter, were committed at the same time, by the same force, and only differ in the degree of injury inflicted. While only one exists at common law, both are defined by our statute, and the penalties regulated thereby. The one being statutory only, furnishes no ground in the case stated for misjoinder. 2 Hale, 173;

1 Leach, 1103; 1 Chit. Crim. Law, 253; Baker v. State, 4 Ark. 56; Com. v. Tuck, 20 Pick. 356; State v. Brady, 14 Vt. 353; State v. Cocker, 3 Har. (Del.) 554; State v. Grisham, 1 Hayw. 12; Josslyn v. Com., 6 Metc. 236; State v. Flye, 26 Me. 312; People v. Austin, 1 Park. Crim. R. 154; United States v. Peterson, 1 Wood. & M. 305; Com. v. Manson, 2 Ashm. 31; McGregg v. State, 4 Blackf. 101; State v. Coleman, 5 Port. 32; Wash v. State, 14 Smedes & M. 120; People v. Baker, 3 Hill, 159; State v. Hogan, R. M. Charlt. 474; Kane v. People, 8 Wend. 203; Carlton v.Com., 5 Metc. 532; United States v. O'Callahan, 6 McLean, 596; Stephen v. State, 11 Ga. 225; Burk v. State, 2 Har. & J. 426. Neither does the fact that the prescribed penalties are different. King v. Darley, 4 East, 179; 1 East, P. C. 408410; Kightly v. Birch, 2 Maule & S. 533; King v. Darley, supra, 174. Nor was the defendant prejudiced in any manner by the joinder upon the trial. By the joinder of the counts he became entitled to the greatest number of challenges allowed by law, and a greater number than he would have been had the information contained a single count for the crime of which he was convicted. Neither does the information present a case in which the people could be required to elect between the counts. (2) When distinct offenses are charged in different couuts, but are committed by the same acts, at the same time, and the same testimony must necessarily be relied upon for conviction, the prisoner cannot be confounded in making his defense, and the people ought not to be compelled to elect. People v. Costello, 1 Denio, 83; People v. Rynders, 12 Wend. 425; Kaue v. People, 8 id. 203; State v. Smith, Blackf. 489; Wash v. State, 14 Smedes & M. 120 (3) That the injury was committed by shooting was admitted upon the trial; the extent of the injury and the intent with which it was done being the main questions litigated before the jury. 'Every sane man must be presumed to contemplate and intend the necessary, natural, and probable consequences of his own acts" (3 Greenl. Ev., §§ 13, 14; Rex v. Farrington, Russ. & R. 207; Com. v. Webster, 5 Cush. 305); but when the intent is the gist of the crime, as in this case, the presumption, though a very important circumstance in making the proof necessary upon this point to convict, is not conclusive, nor alone sufficient, and should be supplemented by other testimony to avoid a reasonable doubt. Sup. Ct. Mich., Jan., 1885. People v. Sweeney. Opinion by Sherwood, J. (22 N.W. Rep. 50.)

WITNESS-CREDIBILITY OF, FOR JURY-DEFENDANT

CONVICTION ON EVI

IN OWN BEHALF-ACCOMPLICE DENCE OF.-(1) It is the peculiar province of the jury to determine whether any particular witness or witnesses are not worthy of belief, even though they are accomplices; and in passing upon a motion for a new trial, the court will not substitute its own opinion as to the credibility of witnesses for that of the jury how to determino as to the weight or credibility to be given to testimony. In determining the weight or credibility to be given to any statement of fact made by a witness in the course of his testimony, it is the duty of the jury to take into consideration all the evidence, whether circumstantial or otherwise, tending to disprove such statement of fact, and which would also include contradictory statements made by other witnesses. Hirschman v. People, 101 Ill. 568. On the trial of three defendants for larceny, the court instructed the jury "that in this State the accused is permitted to testify in his own behalf; that when he does so testify he at at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded to his testimony,

the jury have the right to take into consideration the fact that he is interested in the result of his prosecution, as well as his demeanor and conduct upon the witness stand and during the trial; and the jury are also to take into consideration the fact, if such is the fact, that he has been contradicted by other witnesses. And the court further instructs the jury, that if, after considering all the evidence in this case, they find that the accused have willfully testified falsely to any fact material to the issue in this case, they have the right to eutirely disregard his testimony, excepting in so far as his testimony is corroborated by other credible evidence." Held, that there was no substantial objection to the instruction. (2) Whatever may be the rule in other States with respect to the right of a jury to convict upon the uncorroborated testimony of an accomplice, it is well settled that the right exists here, and convictions on such testimony will not be disturbed by this court on that ground alone. Collius v. People, 98 Ill. 584; Friedberg v. People, 102 id. 160. Sup. Ct. of Illinois. Rider v. People. Opinion by Mulkey, J. (110 Ill. .) [ (2) See 9 Hun, 113; 63 N. Y. 143; 85 Penn. St. 739; 1 Am. Crim. Law Rep. 34.ED.]

In W. Sewel's Dutch Dictionary, Amsterdam, 1749,

all cases where a freehold is involved, etc. In 100 Ill. 11, and id. 218, aud in 103 id. 180, it was held that a freehold is involved in all cases where real estate is claimed under a deed purporting to pass the title which is sought to be avoided by an adverse claimant. In 105 Ill. 218, these cases in most sweeping language are all overruled without referring to the cases at all. But what's more, the force of the argument, in this last case overruling these three cases, is directly repudiated and denied by a decision of the court written by another judge in 108 Ill. 650, and this without noticing the case. And yet again in this first case, 100 Ill. 11, can be found expressions in the opinion, on another point, that are wholly irreconcilable with the construction given to a statutory provision in 86 Ill. The fault is not in the judges; they are all learned and able men; not in the want of a code, but in the "assignment system." J. C. COURTNEY. METROPOLIS, Ill., June 10, 1885.

313.

HE

COURT OF APPEALS DECISIONS.

bestek van 120 voeden in t' vierkaut), about two acres of ground.'

day, June 16, 1885:

Judgment of General Term and Sessions reversedPeople, respondents, v. Morris Marx, appellant.

NYACK, June 8, 1885.

HOWARD VAN BUREN.

A REASON FOR INCONSISTENT DECISIONS. Editor of the Albany Law Journal:

In the last number of the JOURNAL, in commenting on the "breezy book" of Gilbert, of Ottawa, Ill., you seem to attribute the inconsistencies of the Supreme Court of Illinois to what you call "the crying need of a code." May not this be due to the vicious system adopted by the court of assigning cases to single judges to write the opinions, without any previous determination by the court as to what those opinions should be when written? Under this system the judges themselves must feel that the decisions of the court are in fact the individual opinions only of the particular judges writing them, and not the solemn determinations of the court. Most of the inconsistencies seemingly occur by one judge expressing his opinion as the opinion of the court, without even noticing a contrary opinion expressed by some one of the other judges in a previous decision. The last opinion is perhaps hastily read in consultation. The tired judges sit listening, with thoughts perhaps far away. No notice is taken of the former decision. The doctrine of stare decisis is not discussed. Nothing striking the ear of the sometimes impatient and often-tired judges as being exceptional, the opinion is courteously acquiesced in and adopted; hence the inconsistencies. A code would hardly remedy this evil, for this contrariety sometimes occurs concerning the construction given to a plain statutory provision. For instance: The Statute of Illinois provides that appeals may be taken direct from the Circuit to the Supreme Court in

York, Lake Erie & Western R. Co. for appointment of commissioners.-Judgment reversed, new trial granted, costs to abide event-William Kirkland, appellant, v. Samuel Kille, respondent.- -Judgment affirmed-People, respondents, v. Joseph Bork, appellant. Judgment affirmed, with costs-Casper WagR. Co.-Judgment affirmed with costs-Eliza Bainer, respondent, v. New York, Lake Erie & Western ley, administratrix, etc., respondent, v. Boston, Hoosac Tunnel & Western R. Co., appellant.—Appeal dismissed with costs-People ex rel. Albany Bridge Co., respondents, v. William J. Weaver and others, assessors, etc., appellants.-Appeals dismissed with Rasback, respondent; and Same, appellant, v. Benj. costs-James H. Woodford, appellant, v. David H. F. Chapman and others, respondents.- -Appeal dismissed with costs-Frederick Robinson, appellant, v. Peter Helferick, respondent.- Judgment affirmed with costs-James Carrigan, appellant, v. Thomas H. O'Conner and others, respondents.

NOTES.

"Proceedings on the foot of a judgment.' These of course are the last proceedings.-Mr. Fred. Geller, of this city, carried off the prize at Columbia Law School, for the best essay on the Force of Judgments of other States. His essay is said to be an excellent production, and is printed in full in the Columbia Jurist.

-Here is another unrestrained Beecher. Mr. J. A. Beecher, of Newark, N. J., writes The Nation, thanks it for denouncing Judge Van Brunt, and demanding that he be impeached for the protection of lawyers— so he says, although we cannot see what the judge has done against the lawyers.

It

is without distinction of sect or party, and its efforts are to be restricted to the attempt to shut up the grog-shops on Sunday. Nothing can well be said against any attempt to enforce the laws, especially in a matter so essential to the prosperity of society as this. Of course the grog-shops will complain, not content with their license to debauch their weak fellow creatures and deal death and damnation around the land on the other six days of the week. Of course it will be difficult to carry out this law. The grog-sellers will laugh at the attempt. Certain politicians of the baser sort, whose advancement depends on the suffrages of those who sell and drink the stuff in question, will be indifferent or even hostile. But these people will find out, we hope, that the aroused conscience of a community is irresistible. Politicians found that out at the last election of governor in this State. They will find it out again on a smaller scale in this city. Our local laws shall not be disregarded and defied. Our Sunday shall not be made the worst day of the week, sacred to wife-beating, debauchery, disorder, and all crime. The newspapers treat the movement very gingerly, but we believe that they will find out that it is going to be popular, and then of course they will come in. Let our laws be enforced, say we, and if our present public officers will not enforce them, we will see about getting some who will. Let the law-breakers stand from under !

If any lawyer, "with whom time lags withal," will first read, as an "L eye-opener," the article of Mr. Hopkins, ante, 284, and then take the latest edition of the statute (seventh), which of course is the best, and note the changes effected by the Legislature of 1885, he will find that chapter 489 of the Laws of 1879, which ought to have been insured a place therein, has been entirely omitted. That any thing could have escaped the codifier who so greatly simplified the Code of Procedure, and whose capacity is so well known in legal circles, fills one with wonder and amazement, and we are led to exclaim, "who is sufficient for these things," when they escape Mr. Throop.

spectators did not want to be hit. "" into the the judge "leaped

66

แ

"" arena we can't conceive, unless for the sand in the " 'spittoons.") But the judge "waltzed in," and a third attorney, in sympathy with the county attorney, hit him under the ear. This was no way to gain the ear of the court. For a moment the judge was dazed," but instantly recovered, and it proved cold days" for the lawyer, for the judge immediately laid down the law and the lawyer, and wallopped the latter heartily-"threw him out of court," so to speak. Then the judge grabbed one of the two principals, and two jurymen at his comfifty dollars each, and then adjourned court, as all mand captured the other. He fined the principals hands were bleeding profusely. It is feared a 'tragedy" " will ensue.

We shouldn't wonder.

But we are wagering all our worldly possessions on Judge Beekman, especially as he did not deem it necessary to fine his own particular combatant. He is a man after our own heart, and his method is sure to reduce "the law's delays." We are glad it was only a murder trial that was thus interrupted. If it had an indictment for carrying concealed weapons, the principals would have felt foolish at the consciousness that each had a weepon" humping out his hip-pocket. We hope our brethren will guns " when we come down to lay aside these " visit Judge Beekman, as we propose to do at our earliest convenience. We will warrant that he doesn't carry any knives or pistols, nor any "knuckles," save those which nature has gifted him withal. Oh, that Ben Butler or Bob Ingersoll would tackle him!

It is gratifying to see a dead-letter law enforced. The conviction of Buddens iek, for putting up paper-houses, and thereby crushing sundry fellowbeings to death, is a wholesome example. The matter of making buildings safe against falling and fire has been too long notoriously neglected. Buddensiek seems to have carried things with a high It may hand, and it is well to begin with him.

But

seem hard to him and to some others that a man who did not intend any wrong should suffer. this man is just as culpable as one who points a pistol, supposed to be unloaded, at another, and it goes off and kills or hurts. All this fooling with human life, whether by practical joking, or by the selfish greed of careless builders or grog-sellers, must stop. At all events, the laws must be enforced. The district-attorney's office in New York deserves credit for this prompt conviction. It will prove an effectual lesson.

But while we are in favor of enforcing the laws, we are not in favor of a brutal enforcement. It is bad enough for a man to beat his wife. It is still worse for the State to beat him for doing it, or for any thing else. The sheriff whipped a man brutally and publicly the other day in Maryland. This sort of punishment degrades the sufferer beyond

remedy; it makes him revengeful; he will always ache to kill that sheriff, and we do not wonder. It tends to make a brute of the officer inflicting it. A self-respecting man ought to decline to dirty his hands with it. In old times they used to keep butchers off juries in England, from the popular notion that they were blood-thirsty; a mistaken notion probably. But we do believe that the custom of requiring a public officer to whip his fellowbeings till they bleed and faint, and sometimes come near dying, is very reprehensible. If we must beat criminals, let us have a machine for doing it, like a carpet-beater.

Our excellent contemporary, The Independent, late spoke of a new penal law in Tennessee, forbidding the teaching of polygamy, or emigrating for the purpose of practicing it. Certain Mormon elders arrested under the law propose to test its constitutionality, and The Independent observes: "We have no sympathy with Mormonism, as a doctrine, believing it to be a gross, religious imposture, cunningly palmed off upon ignorant persons by an artful priesthood; and we hold in utter abomination the practice of polygamy, and have urged the government of the United States to prosecute and punish it as a crime in all places in which it has jurisdiction for this purpose. And yet at the same time, we find it impossible to accept the Tennessee plan as just and right for dealing with those who are merely teachers of polygamous doctrines. It seems to us a plain and palpable violation of the fundamental principles of this country in respect to the right of free discussion. We would just as soon pass a law making it a penal offense for any person to preach the doctrines of atheism, or induce other persons to accept these doctrines, or to preach any system of generally acknowledged error. The right of free discussion may have its incidental evils; but when this right is not so exercised as to invade private rights, as in the case of slander, the better way indeed the only safe way - is to leave free discussion to supply the necessary cure for these evils. This is better than the Tennessee law." This we think fails to discriminate between the proper inculcation of religious opinions and of the practice of a recognized crime. Atheism is not a crime; bigamy is, in every civilized community, and as such, the inculcation of it is a proper matter of police regulation. In the next column The Independent says: "On the first of June an excellent law, passed at the last session of the Connecticut Legislature, took effect throughout that State. It provides for the imposition of a fine of fifty dollars or less, or imprisonment for three months or less, or both, on persons selling or keeping for sale publications devoted to criminal news or stories of crime. It is said that the law has already had the effect of purifying the news stands. Connecticut has set an example that the other States should hasten to follow." This we think is right. But how can The Independent thus discriminate? Is it

not worse explicitly to inculcate or practice a positive crime than to sell news or tales of crime? Their religious pretense or belief does not help the Mormons any more than it would the Thugs.

IN

NOTES OF CASES.

N Davies v. Gallagher, Pennsylvania Common Pleas, December, 1885, 16 Week. Notes Cas. 147, it was held that the warden of a penitentiary cannot be made a garnishee in respect to money be longing to a prisoner. The court, Thayer, P. J., said: "The warden is the chief executive officer of the penitentiary, and the duties and responsibilities imposed upon him by the act are very onerous. He is required to reside in the penitentiary, to visit every cell and apartment, and to see every prisoner at least once a day. There are now more than one thousand such prisoners. He must keep a journal, in which are to be entered all receptions, discharges, deaths, pardons and escapes of prisoners, and all complaints made and punishments inflicted, the visits of the inspectors and physician, and all other occurrences that concern the state of the prison. He is to appoint and dismiss all the underkeepers and servants, to report to the inspectors all infractions of the rules and inflict all punishments. His duties are in short so exacting, and require such constant attention, that he is prohibited by law from absenting himself from the penitentiary for a single night without permission in writing from two of the inspectors. His necessary and imperative duties demand and fill up his whole time. That such a public officer should be harassed with attachments against his prisoners, in which he is made garnishee, is clearly against public policy and contrary to law. Considerations of public policy and convenience require that money in the hands of such officers shall not be stopped whilst in custodia legis. If the warden should be obliged to answer such attachments his attention would necessarily be diverted from his legitimate duties, to the great detriment of the prison management, for he would be compelled to appear in court, employ counsel, answer interrogatories, collect evidence, and to devote the time which is required to be given to his duties to watching the progress and conducting the proceedings of law suits. He belongs to that class of public officers which is exempt from the process of attachment against funds in their official custody, like the treasurer of a board of school directors (Bulkley v. Eckert, 3 Barr. 368); the prothonotary of a court (Ross v. Clarke, 1 Dal. 354); a justice of the peace Corbyn v. Bollman, 4 W. & S. 342); a sheriff (Bentley v. Clegg, 1 Clarke, 62); a constable (Crossen v. McAllister, 1 id. 257); State and county treasurers and officers of municipal bodies (City of Erie v. Knapp, 5 Casey, 174). The performance of public duties by officers of this class is sufficiently difficult and onerous without complicating them with