ACTION FOR PENALTY PRIOR JUDGMENT OBTAINED BY COVIN AND COLLUSION- A writ having been issued in an action for the recovery of a penalty under the 21 Geo. 3 c. 49 s, 1, the defendants procured another action to be brought against them for the same and further penalties by a friendly informer who was ignorant of the earlier writ. The friendly informer took no real part in the action brought in his name, but intrusted the conduct of it to the defendants' solicitor. The defendants suffered judgment by default in the friendly action, in order to protect themselves by using it in an answer to the hostile action and any other actions which might be brought for the same penalties.-Gladstone v. Brighton Aquarium Assn. English Court of Appeal, 27 W. R. 523.

ABSTRACTS OF RECENT DECISIONS.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

June, 1879.

WRIT OF MANDAMUS-RIGHT OF PURCHASER OF SHARES IN A CORPORATION. Where officers of a railroad corporation have sold stock thereof at public auction for non-payment of an assessment thereon, a writ of mandamus will not be granted to compel them to transfer on the books of the corporation and issue a certificate for said stock to a purchaser thereof at said auction. Murray v. Stevens, 110 Mass. 95; American Railway Frog Co. v. Haven, 101 Mass. 398, distinguished, and Queen v. Shropshire Union Railway, L. R. 8Q. B. 420, explained. Opinion by GRAY, C. J.— -Stackpole v. Seymour.

B

PROMISSORY NOTE LORD'S DAY ACT.-B, the agent of F, who was out of the State, received from F a note of the defendant, which was almost outlawed, with a request that he would call upon the defendant and collect said note or get him to sign a new one. called upon the defendant on a Thursday and stated the request, and the defendant said he could not pay that day, but promised to call upon B before the next Saturday night and pay the old note or sign the new one. The defendant called upon B the following Sunday morning, asked to take the new note and promised if it was all right to sign and return it Monday morning. He took it away, signed it, and returned it by a messenger to B in the evening of said Sunday. B at first declined to take the note on Sunday, but the messenger complained of the great inconvenience of coming again, and he took it and gave up the old note. A few days after B handed the new note to the wife and daughter of F, who received it upon his return, and some months afterwards indorsed it to the plaintiff, neither of them having the slightest reason to suppose that any of the business relating to said note was transacted on Sunday. The defendant, a few weeks after the new note was given, stated that he made and delivered said note on Sunday to avoid paying his debt. The new note was payable on demand. Held, that the transaction was in violation of the Lord's day act, and that neither F nor the plaintiff I could maintain an action thereon; and as the defense is allowed, not for the benefit of the defendant, but because the court can not lend its aid to the plaintiff, the defendant's motive in entering into the illegal contract is immaterial. Gen. Stats. ch. 84, § 1; Mosely v. Hatch, 108 Mass. 517; Cranson v. Goss, 107 Mass. 439. Opinion by GRAY, C. J.-Stevens v. Wood.

USE OF TRADE-MARKS WHEN NOT RESTRAINED.— The plaintiff manufactured and sold stoves and ranges, and separate parts thereof to replace those which became

worn out or destroyed, using certain names as trademarks, both by casting them on the stoves and ranges, and by designating them by said names in selling them, and using in the sale of the parts the trademark of each stove and range to designate the parts sold for its repair, and also casting on each of said parts the initial letters and number of the trade-mark of the stove or range for which said part was fitted; said numbers applied to stoves and ranges made by the plaintiff and other manufacturers, always corresponding with the number of inches measuring the diameter of the pot-holes. The defendant made sim. ilar parts cast in moulds made from the parts sold by the complainant as aforesaid, and had through that means cast on his parts the initial letters and numbers borne by said parts made by the complainant. These parts so made by the defendant were sold by him to replace like parts in the stoves and ranges of the complainant, and were advertised by means of a catalogue which stated that they were manufactured by the defendant, but contained names and numbers used as aforesaid by the complainant. Upon a bill in equity brought to restrain the defendant from using said names and numbers, it was held, that as the defendant published to the world the fact that he was the manu. facturer of what he sold, and did not attach to his goods any label or mark apt to deceive subsequent purchasers, he could not be regarded as infringing the rights of the plaintiff. Opinion by SOULE, J.-Magee Furnace Co. v. Le Barrow.

SUPREME COURT OF NORTH CAROLINA.

June-July, 1879.

LIEN-CONSTRUCTION OF "LABORER."-An overseer is not a laborer, within the meaning of the "Laborers and Mechanics' Lien "law, and has no lien for his wages on the crop or farm of his employer. Opin. ion by ASHE, J.-Whitaker v. Smith.

ASSAULT-WHAT CONSTITUTES.- The prosecutor being at a place where he had a right to be, observed the defendants in conversation and heard a threat to kill him. Soon thereafter the defendants advanced upon him, in an angry manner, with threatening words, each holding a knife in his hand. Held, that this was an assault, though the prosecutor left before the defendants got within striking distance. State v. Rawles, 65 N. C. 334, cited and approved. Opinion by ASHE, J.-State v. Shipman.

LUNATIC-CREDITORS-MAINTENANCE OF FAMILY. -Property of a lunatic, put into the hands of a committee, is in custodia legis, and can not be reached by a creditor for a debt or judgment, prior to the lunacy, except by an order of the superior court, and such order can not be made until first a sufficiency is ascertained and set apart for the maintenance of the lunatic and that of his family if minors. Opinion by DILLARD, J.-Adams v. Thomas.

CHARITABLE TRUST-DUTY OF TRUSTEES.- The defendant's testator bequeathed $5,000 in United States bonds to the university, specifying that the income was to be used to defray the tuition, in perpetuam of five young men, his descendants having the right to name them; that the fund should not be subject to the debts of the university, and should be kept in United States bonds regardless of rate of interest, and the testator further declared that his object was to found five scholarships. Owing to the reduced rate of interest on United States bonds the income may become insufficient to pay the tuition of five scholars, and the defendant deeming the university should agree to make up the deficiency, declined to pay over until the

court had decided whether the university took the bonds subject to such obligation. Held, that the point can not be made in this action, the duty of the executor being simply to pay over the bonds unconditionally. Should the income become insufficient to pay the tuition of five scholars, the court expresses the opinion that the testator's intention was to confer a bounty, and not to create a burden, and the university would not have to make up the deficiency either by reducing rates or otherwise, so as to educate five pupils, if the income from the $5,000 of United States bonds should become insufficient. Opinion by SMITH, C. J. -Trustees v. Gatling.

SUPREME COURT OF MICHIGAN.

June Term, 1879.

MORTGAGE BY TENANTS IN COMMON-CONFLICTING LIENS.-Tenants in common with equal interests of a lot gave jointly a mortgage thereon, and subsequently one of them mortgaged his undivided half to another person, who foreclosed and purchased his mortgagor's interest. Afterwards, the other tenant, having paid more than one-half of the joint mortgage debt, applied for a release of his interest in the mortgaged land, which was given by the assignee of the joint mortgage (complainant herein), knowing of the mortgage given on the other undivided half: Held, that this did not entitle the mortgagee of the undivided half to have complainant's lien on that half under the joint mortgage postponed to his own. This would make one tenant, by having the misfortune to be joint owner with another of a mortgaged lot, liable to have his property sold to pay the other's subsequent mortgage. Opinion by COOLEY, J.-Southworth v. Parker.

AGREEMENT, ORIGINAL OR AS SURETY-STATUTE OF FRAUDS.-B engaged C to provide materials and do certain work for him on a building, and C agreed with third persons to supply him the material for a certain sum, whereupon they furnished him with a portion of the material upon his credit, and afterwards supplied the residue directly to B, after informing him, as they claim, that they had concluded not to deliver any more under their former arrangement with C. Held, on action brought by said third persons against B: 1. That the fact that C had previously agreed with plaintiffs for the same things and for the same use, and was not aware that they were resolved not to act further under it, was not incompatible with a valid dealing between these parties on their own ground and apart from the contract relations between plaintiffs and C. 2. That if such was the case, defendant's promise was as principal and not as guarantor or surety, and he was bound by it; but if the parties contemplated that the articles should be furnished under the agreement which had been made with C, and that defendant should be bound to pay in case C did not, defendant was only a surety, and was not bound for want of writing. Opinion by GRAVES, J.-Ingersoll v. Baker.

CHATTEL MORTGAGE · COVENANT TO KEEP UP STOCK-CONTINUANCE OF MORTGAGE AS SECURITY -ADMISSIONS AGAINST INTEREST EFFECT OF SALE BY CHATTEL MORTGAGOR.-1. A chattel mortgage upon a stock of goods in store may covenant that goods shall be put in to keep up the stock, and it will cover goods so put in. People v. Bristol, 35 Mich. 28; American Cigar Co. v. Foster, 36 Mich. 368. 2. Where a mortgage is made to secure a note, and a few months before it becomes due a new note for a reduced amount is given, payable twelve months after date, and the old one is given up, the question

whether the mortgage continues as security for this new note is one of fact for the jury; and evidence that the mortgagee before he transferred his title to complainant, reported as a commercial reporter in 1876 (while the old note was running), that the stock was mortgaged for $1,150, and in the next year (when the old note had been given up) that the stock was clear, was original evidence to prove admissions inconsistent with the existence of any mortgage. They were against his interest. 3. A general sale of a chattel mortgagor's interest does not give an immediate right to replevy without demand. The mortgagee's right to take possession is optional, and the mortgagee can not be in fault for not delivering up what is not demanded. Opinion by CAMPBELL, C. J.-Cadwell v. Pray.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawȧ June 21, 1879.]

NEGLIGENCE WALKING ON TRACK OF RAILROAD- FAILURE TO LOOK FOR APPROACHING TRAINS. This action was brought by a widow, as administrator of the estate of her deceased husband, against a railroad company, to recover damages for his death, which was caused by an engine of the company running over him. Verdict below for the defendant. Plaintiff appeals. It appears that the deceased was acquainted with the locality of the accident; that he was walking at the intersection of two railroad tracks, upon each of which a train was approaching; that he stepped off of one track on to th other, within ten feet of an approaching engine, and that the engineer was not ringing the bell of the engine; and that he was knocked down by the same, and that he died shortly afterwards. SHELDON, J., says: "Upon the facts of this case we do not see any right of recovery. It appears that the deceased was walking along the track of defendant's road, and placed himself in the position of danger. He did this without using any precaution whatever to ascertain wheth-er or not there was any engine or train approaching on the track. Negligence and inattention in voluntarily and needlessly going into a place of danger are not to be excused. The greater the danger the higher the care and caution which should be exercised to avoid it. This court has repeatedly held that to walk upon the track of a railroad without looking in both directions to discover approaching engines or trains, when the exercise of such precautions would discover either the one or the other, is such negligence as will preclude a recovery, unless the injury be willfully or wantonly inflicted by the defendant. 46 Ill. 82; 52 Ill. 325; 64 Ill. 510; 81 Ill. 45; 70 Ill. 106; 87 Ill. 529; 72 Ill. 222: 83 Ill. 510." Affirmed.-Austin v. Chicago, etc. R. Co.

DEBT ON BOND- GUARANTEE OF MARRIED WOMAN - RIGHT OF THIRD PARTY TO PLEAD COVERTURE. This was an action of debt brought by Mary A. Giles against the defendants on a bond in which one of the defendants, Ricketson, was principal, and the other defendant, Bradley, was surety, conditioned that "if the above bounden Ricketson, his heirs, etc., shall well and truly pay or caused to be paid any and every indebtedness or liability now existing or which may hereafter in any manner exist or be incurred on the part of said Ricketson to the said Mary A. Giles, then this obligation to be void." It appears that after the making of the above writing, and before the commencement of this suit, Ricketson gave two promissory notes to the Singer Man. Co., the payment of which was guaranteed by plaintiff at the special instance and request of Ricketson; that the notes were

not paid when due, but that plaintiff was obliged to pay the same. Plaintiff recovered, and defendants appealed. It is first contended that as the plaintiff was, at the time of the guarantee, a married woman, the contract of guarantee was not binding upon her, and if she voluntarily paid the notes she can not recover the amount so paid from the defendant. The court say: "We shall not stop to inquire whether the plaintiff could have defeated a recovery on her contract of guarantee by a plea of coverture if she had interposed that defense; because such a defense if it existed was personal to her, and if she failed to take advantage of it the defendants in this action are in no position to invoke her right to aid them here. If a feme covert should sign a note as surety and fail to plead coverture when sued, but permit judgment to pass and afterwards pay the debt, the principal on the note when sued by her to recover back the money paid for him, could not shield himself behind the fact that she might have relied upon coverture when originally sued." Affirmed.-Ricketson v. Giles.

spirits, and exhibited them in the local museum. The original owner was annoyed at having his name labelled on the jar, and hence the action."—Mr. Justice Bramwell, of the Eaglish Bench, in the course of a recent trial, laid down the complete duty of the solicitor in regard to embarking his client in litigation. He said that "the duty of a solicitor was something like that of a doctor-to keep one well if he could, not to make one ill and then cure one. Whichever party to this action won, the solicitor would perhaps say to his client, "You see I pulled you through," and if he were the client he would say, "You oughtn't to have let me get into it at first." It was manifest that a little good sense and good advice on the part of those who had advised the plaintiff in this cause would have prevented the bringing of such a futile, fruitless, worthless action as that. Here they had had their time consumed about a case which was really of no moment. Perhaps he had no right to complain, neither perhaps the jury, because they had the right to torture twelve of their fellow-citizens on some future occasion.

BOOK NOTICES.

CASES ARGUED AND DETERMINED in the St. Louis Court of Appeals of the State of Missouri, From December 18, 1877, to April, 23, 1878. Reported by A. MOORE BERRY. Vol. 5. St. Louis: F. H. Thomas & Co. 1879.

REPORTS OF CASES DETERMINED in the Supreme Court of Nevada during the year 1878. CHARLES F. BICKNELL and THOMAS P. HAWLEY, Reporters. Vol. 13. San Francisco: A. L. Bancroft & Co. 1879. The fifth volume of this series is fully up to the standard of the last two, and the typographical part equal to all the previous volumes. It contains 639 pages, and among them are many decisions of general importance and interest, most of which, however, have been already referred to in these columns. The bar of other States have, no doubt, by this time discovered that these reports are of the greatest value in practice, containing, as they do, so many cases on commercial law, and on questions of every day importance. The ability of the bench, whose judgments are here reported, is known throughout the country, and the Missouri Appeal Reports have come to be quoted very extensively.

The thirteenth volume of the Nevada reports contains not very many cases of interest in this section. The following cases are an exception to this: An undertaking on appeal signed on Sunday is valid; it is not "transacting judicial business," within the meaning of the statute. State v. California Mining Co. An order in the form of an inland bill of exchange not upon any particular fund, is not, before acceptance, an assignment, and does not create any lien in favor of the holder upon funds of the drawer in the hands of the drawee. Jones v. Pacific Wood Co. The warden of the State prison has authority to employ a physician under a power to appoint "all necessary help." State v. Hobart.. The work of the Nevada reporter seems to be well executed, with the exception of the syllabi, which are, in almost every case, both lengthy and argumentative-qualities not at all essential, and which had better be dispensed with.

NOTES.

"An action," says an exchange, "is now being tried at Washington, in which the plaintiff claims the recovery of his own legs. The surgeon who amputated them considered them his prequisites, placed them in

The second annual meeting of the American Bar Association was held at Saratoga, New York, on the 20th ult. The proceedings were opened by the address of the retiring president, Hon. James O. Broadhead, of this city, on the changes of the statute law made in the several States and by Congress during the last year. Over two hundred new members were elected. The reports of the secretary and treasurer were read and accepted. The report of the treasurer showed the receipts of the last year to have been $1,065.10, and the disbursements $390 23, showing a balance on hand of $734.87. The report of the executive committee was read and accepted. Hon. Calvin G. Childs, of Connecticut, read an essay on "Shifting Uses from the Standpoint of the Nineteenth Century." The evening session was opened by the election of members of the general council for the ensuing year. The following named gentlemen were announced as constituting such council: A. M. Rhodes, A. P. Hyde, J. Hubley Ashton, Geo. A. Mercer, Thos. Hoyne, Azro Dyer, Jas. S. Pertle, Carleton Hunt, Skipwith Wilner, Edmond H. Bennett, O'Brien J. Atkinson, Jos. Shippen, Chas. S. Manderson, John M. Shirley, John W. Taylor, E. F. Bullard, William T. McClintock, Thos. E. Franklin, Luke P. Poland, Robt. Ould, John J. Hutchinson, Almond A. Stroud. Mr. Henry Hitchcock, of St. Louis, read a paper on "The Inviolability of Telegrams." Mr. Geo. Mercer, of Savannah, read a paper on "The Relationship of Law and National Spirit." A resolution amending article 4 of the constitution, transferring the election of members to the General Council, was adopted. The association re-convened on Tuesday morning. The session was opened by E. J. Phelps, Esq., of Vermont, who delivered the annual address, taking for his subject "Chief Justice Marshall, and the Constitutional Law of his time." The election of officer for the ensuing year resulted as follows: President-Hon. Benjamin H. Bristow, of Kentucky. Vice-Presidents-Thomas H. Watts, Ala.; John J. Horner, Ark.; John N. Pomeroy, Cal.; Origen S. Seymour, Conn.; H. H. Wells, D. C.; Anthony Higgins, Del.; A. R. Lawton, Ga.; Thomas Hoyne, Ill.; Thos. A. Hendricks, Ind.; W. G. Hammond, Iowa; Wm. Preston, Ky.; F. P. Poche, La.: R. J. Gittings, Md.; Nathan Webb, Me.; Wm. Gaston, Mass.; Thos. M. Crowley, Mich.; Jas. T. Harrison, Miss.; Henry Hitchcock, Mo.; Jas. Woolworth. Neb.; Gilman Marston, N.; A. Q. Keasbey, N. J.; Clarkson N. Potter, N. Y.; Rufus King, Ohio; Geo. W. Biddle, Penn.; Charles L. Bradley, R. I.; Robert Ould, Va.; E. J. Phelps, Vt. Secretary-E. O. Hinkley, of Maryland. Treasurer-Francis Rawle, of Pennsylvania.

The Central Law Journal.

SAINT LOUIS, SEPTEMBER 12, 1879.

CURRENT TOPICS.

IN Richardson v. Hughitt, recently decided by the Court of Appeals of New York, a contract providing for the loan of a sum of money, and giving a portion of the profits to the lender, was held not to constitute a partnership. The facts are seen in the opinion of the court by MILLER, J. :

"The facts in this case are uncontradicted; and the question to be determined is, whether Hughitt had such an interest in the profits of the business of Bench Bros. & Co., as to render him liable jointly as a partner with the other defendants to third parties. Hughitt was to advance money upon the wagons manufactured upon the terms provided for in the contract, and with the single exception of the provision made therein, that Bench Bros. & Co. were to pay one-fourth of the net profits upon the sales of wagons, with interest on the advances made at five and one quarter per cent., so far as the cash received would go, and the balance in notes on interest at seven per cent. There is no question, I think, that the contract between the parties related to a loan of money alone upon the terms stated therein. Nor am I prepared to assent to the proposition, that this portion of the agreement, considering the facts connected with it, and the terms employed in the same, created a partnership between the contracting parties. The true construction of the instrument evidently is, that it was a contract between the lender and the borrower; and the provision made as to the profits were merely a mode of providing a compensation to Hughitt for the use of the money which he had advanced; and the share of the profits which Hughitt was entitled to receive was not as partner, but on account of the debt owing to him by the firm of Bench Bros. & Co."

The general rule is that, to constitute a partnership, there must be a community of interests inter se, and that the parties should share the profits and losses. Pattison v. Blanchard, 1 Seld. 186. This, however, is not without exception, and where there is an agreement for sharing in the profits of a business, in some cases it is sufficient to establish a partnership as to third persons. See Manhat

tan Brass M'f'g Co. v. Sears, 45 N. Y. 797. And here comes in another exception to the rule last stated, which is, that where the person had no interest in the capital or business, and is to be remunerated for his services by a compensation from the profits, or measured by the profits, or what is to depend, as in the case of seamen or other voyagers, upon the result, it has no application. Where, then, Vol. 9—No. 11.

one is only interested in the profits of a business as a means of compensation for services rendered, he is not a partner. Leggett v. Hyde, 58 N. Y. 272, 280; Smith v. Bodine, MSS. of May, 1878; Vanderburgh v. Hull, 20 Wend. 70; Burckle v. Eckhart, 1 Denio, 337; on appeal, 3 Comst. 132; Fitch v. Hall, 25 Barb. 13; Lamb v. Grover, 47 Id. 317; Smith's L. C, 5th Am. ed., 272. These cases fully sustain the doctrine laid down in the principal case, that where the profits are the ineasure of compensation no partnership is created.

THE doctrine that a bill of lading, though a contract as to most of its terms, is but a receipt as to others, is illustrated by the recent case of Archery. The Adriatic, decided by Mr. Chief Justice WAITE in the United States Circuit Court for the Southern District of New York, in June last. The action was for the damage to a cargo of fifty bales of yarn, caused by sea water. The bill of lading signed by the agent of the ship at Liverpool, receipted for the bales in the usual form, as shipped "in good order and well conditioned." The goods were described as 250 bales of coir yarn "in transit" from steamer Macedonia, and were to be delivered in like good order and well conditioned. The bill of lading also contained this clause: "Weight, contents, quality, condition, quantity and value unknown, and ship owner not accountable for the same." At the time of the shipment the bales were apparently in good external order and condition. The ship arrived in New York, October 30th. When the bales were landed in New York, 100 were found to have been wet at some time with sea water; on cutting the wrappers and examining the yarn it was found to be damp, and unfit for the manufacture of fine goods, to which it was on account of its quality originally adapted. No other goods came out of the vessel wet; there was nothing in the appearance of the yarn to indicate that the wetting might not have occurred before the delivery to the Adriatic. WAITE, C. J., said: "The receipt of the bill of lading is an admission that the goods were, when received, in apparent good order; but it is not conclusive as to their actual condition. It makes a prima facie case against the ship, and gives the libellants a right to recover unless this case is overcome by the evi. dence. The burden of the admission rests

upon the ship until it is shown that the appearance and condition of the goods at the time of their discharge are consistent with the actual existence in the packages of the cause of the damage when the shipment was made, without discovery by the ship's agents, acting in good faith and with ordinary care, while taking the cargo on board. There is here no question of estoppel. The bill of lading had not been assigned, and it does not appear that any advances have been made on the faith of it. The evidence is, as I think, sufficient to shift the burden of proof from the ship to the libellants. The goods were received while in transit, and from another ship. They might have been exposed to sea water while on their way to Liverpool, and still the damage be such as not necessarily to attract attention as the transfer was made from ship to ship. It was only about ten days from the time of the shipment in Liverpool to the discharge in New York. When the bales were discharged, there was no appearance of recent exposure; the wrappers were discolored, and the yarn was damp; no other goods were wet, and there was no appearance of any leak in the ship. There was no water to be seen in the hold where the goods were stowed, and none of the other cargo appears ts have been damp even. Under these circumstances it seems to me clear that the libellants, before they can recover, must prove that their yarn was actually free from wet or dampness when it went on board. The damaged appearance of the yarn when it came out is a circumstance to be taken into consideration in their favor, but it is not of itself sufficient, as it seems to me, to overcome the effect of the other facts which are clearly established by the evidence."

This ruling is sustained by the authorities, through none are cited by the chief justice. The admission in the bill of lading that the goods were received "in good order and condition, ," refers only to their external condition: The Olbers, 3 Ben. 148 (1869); Vaughan v. 630 Casks, 7 Ben. 506 (1874). Thus the receipt for bales of cotton "in good order and well conditioned," does not warrant the internal quality or condition of the cotton in the bales. Bradstreet v. Heran, 2 Blatchf. 117 (1849). And the clause "shipped in apparent good order and condition, five cases of merchandise," was held an admission only that the cases contained merchandise, and were out

wardly sound. Abb. on Ship. 339; The California, 2 Sawy. 12 (1871). But where a bill of lading was given for a box of marble tops, in good order and well conditioned," it was held that the burden of proof was upon the carrier to show that the marble was broken when it came into his hands; for here there was the carrier's admission that the specified articles were in the box and in good order. Price v. Powell, 3 N. Y. 322 (1850). The word "apparent," inserted before the word "good," does not change its legal effect. The Oriflamme, 1 Sawy. 176 (1870); and see Carson v. Harris, 4 G. Greene, 516 (1854); Mitchell v. United States Express Co., 46 Ia. 214 (1877); West v. The Berlin, 3 Ia. 532 (1856); The Freedom, L. R. 3 P. C. 594 (1871).

PRINCIPAL AND ACCESSARY.

II.

Incomplete execution. Geyer (Holtzendorff, Strafr. II, 345) gives the following enumeration of cases in which the offence is to be regarded as incomplete:

1. The instigator may fail in inducing the intended perpetrator to act. This includes cases in which the agent agrees to commit the crime, but does so merely as a blind, or from fear, without any intention of executing his purpose.

2. The agent really intends to execute the crime, but is prevented, even before the intention ripens into an attempt.

3. The instigator hits upon an agent who had already determined to commit the crime, and who cannot be said to be "instigated" to an act which he had already fully determined to commit. In this case the instigator is not responsible, unless it appear that his influence went to strengthen the agent in his criminal purpose.

Backing out of Instigator and of Perpetrator. Suppose that the instigator backs out before the crime is perpetrated, does he thereby relieve himself from criminality?--If, when withdrawing, he not merely expresses his disapproval of the crime, but takes all the measures in his power to prevent its consummation, and such measures fail because of casus, or some