a single count of the indictment, and proved under it, the act can not be split into several distinct crimes, and a separate indictment sustained in each; and whenever there has been a conviction on one part, it will operate as a bar to any subsequent proceedings as to the residue." And again, he says: "Whenever, in any criminal transaction, a felonious intent is essential to render it a crime, and without proof of which no conviction can be had, two informations, founded upon the same intent, can not be maintained."

We think this reasoning is sound. In burglary with intent to commit larceny, and in larceny itself, it is essential that the felonious intent should be proved; and it is this intent, which is the same in both cases, that constitutes a material element of crime in each; and when punished in one case, it would be to punish twice for one offense, if, on a subsequent trial and conviction, an essential part of the criminal act first punished also constituted an essential part of the criminal act last punished. For an assault a party may be indicted; so he may be for a battery; but a conviction for an assault bars a conviction for the battery, as the assault is an essential element in the battery, and part of it. In North Carolina and in Georgia it has been held that, where on indictment for burglary with intent to commit a larceny, a conviction has been had, a conviction for the actual larceny, being the same transaction, can not be maintained. And this we think the better and sounder rule. The circuit judge sustained defendant's demurrer to the replication of the attorneygeneral to his plea, and sustained the plea of former conviction, and discharged the defendant from this prosecution. And we affirm the judg


NOTE. The cases referred to, with which this opinion is in accord, are State v. Lewis, 2 Hawks, 98, and Roberts v. The State, 14 Geo. 8. The contrary cases are State v. Warner, 14 Ind. 572, and Wilson v. State, 24 Conn. 57; the latter being the case in which Waite, C. J., dissented. In this case, which was a case of statutory shop-breaking, Storrs, J., held the offense of breaking to have been complete, whether or not the theft was consummated; thus disregarding the element of the one criminal intent as the controlling consideration. Mr. Bishop questions whether, on principle, this doctrine "does not press more heavily against defendants than the humane policy of our criminal jurisprudence justifies." Sec. 893. The Tennessee court, it seems, takes the humane side in this controversy.

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the trustee named in the deed of trust is an indispensable party to the record.

2. IT IS THE SETTLED DOCTRINE OF COURTS of EQUITY in this country, that a party holding the legal title to property involved in a judicial proceeding must be made a party to the decree.

Error to Circuit Court of Cook County.

Charles J. Beattie, for plaintiffs in error, cited the following authorities, as to the necessity of joining the trustee in proceedings of this nature. Gardner v. Brown, 21 Wall. 36; McRea v. Branch Bank of Alabama, 19 How. 376; Russell v. Clarke, 7 Cranch, 69; Supervisors of Douglas Co. v. Wallbridge, 38 Wis. 179; Moor v. Munn, 69 Ill. 591; Trustees v. Braner, 71 Ill. 546; Alexanderv. Hoffman, 70 Ill. 114; Atkins v. Billings, 72 Ill. 597; Hopkins v. Roseclare Lead Co., 72 Ill. 373; Cornell v. Harris, 80 Ill. 65.

MURPHY, P. J., delivered the opinion of the court:

The bill of complaint, set out in this record, was exhibited on the chancery side of the Circuit Court of Cook County, at the July Term, 1875, by Anson M. Truesdell, against Ellen Walsh (widow of John Walsh, late of said county, deceased), John Walsh, Michael Walsh, Mary Walsh, Margaret Walsh and William Walsh, his heirs at law, defendants.

By the bill it appears that on the 6th day of June, 1871, the said John Walsh (then in his lifetime) and Ellen Walsh became and were indebted to one Thomas I. Holt, upon a certain promissory note of that date, in the sum of $1,400, to become due and payable by its terms on the 1st day of March, 1872, with interest at the rate of ten per cent. per annum; and that for the purpose of securing the payment of said promissory note, according to its tenor and effect, on that day, executed and delivered under their hands and seals their certain indenture of trust deed, by which they granted and conveyed to one Joseph N. Barker, of said county, the fee-simple title to the following described real estate, to wit.: "Lot No. 7 in Burrow's subdivision of lots Nos. 7 and 8 of the assessor's division of block No. 3, in Brand's addition to Chicago," which said conveyance was in trust for the purposes in said indenture of trust deed specified-that is to say, to secure the payment of said promissory note above mentioned, according to its tenor and effect. It also appears from the record, that on or about the 8th day of October, 1873, said John Walsh departed this life, leaving him surviving the defendants to said bill, as his widow and heirs at law.

The bill prays the aid of the court in foreclosing said indenture of trust deed as a mortgage, he, said complainant, claiming to be the owner of said promissory note, to secure which the same was given, and that by the decree of the court said premises be subjected to sale under the direction of the court, and that out of the proceeds of such sale said promissory note be paid, etc.

It appears that, on the 9th day of December, 1876, the court decreed for the complainant the foreclosure of said trust deed, as prayed, finding due to the complainant from the defendants the

sum of $1,878.20; and, for the purpose of paying the same, ordered a sale of said premises by the Master in Chancery, according to the rules and practices of that court. From this decree the defendants below prosecute this writ of error, and ask the reversal thereof, and assign several errors, only one of which will it be necessary for us to consider.

The fourth assignment is that the court erred in rendering said decree, in the absence of the trustee named in the bill, without his consent, he not being a party.

It is insisted by the plaintiff's in error that the trustee, J. N. Barker, is a necessary party to this proceeding, being, as he is, the grantee named in the trust deed; that it is apparent that by such instrument the title in fee-simple of said premises was conveyed to said Barker in trust, to be by him used for the purpose of paying said promissory note, as therein declared, and that said title has ever since and still resides in him.

It has long been the settled doctrine of courts of chancery in this country that a party holding the legal title to property involved in a judicial proceeding is an indispensable party to the record of such proceeding. Harris et al. v. Cornell et al., 80 Ill. 65.

This bill is filed to subject these premises to sale by a decree of foreclosure of the trust deed to Barker, and by the production of his own principal instrument of evidence, the complainant establishes the important fact that the parties whom he has made defendants have no other or higher interest in the premises in controversy than a mere equity of redemption.

These premises having been conveyed by John Walsh and Ellen Walsh to the trustee, J. N. Barker, as above stated, and he never having reconveyed or otherwise been divested of such title, it is clear that no procceding to subject the same to sale can be effective or binding on him unless he be made a party; for it is a familiar and uniform rule, that a decree cannot effect the rights and interests of the parties who are strangers to the record of such proceeding. Therefore a sale under any decree to which he was not a party could pass no title to the purchaser.

So it will be seen that for the complainant to reach the title he seeks he must bring the trustee, who holds the legal title, before the court, that the sale under the decree may effect a transfer of the title to the purchaser at such sale.

"It is the duty of the complainant to see and know that he has before the court all necessary parties, or his decree will not be binding. It is a policy of the law to prevent a multiplicity of suits, and where a complainant takes a decree without making the necessary parties defendants to his bill, when the necessity of their being made parties is disclosed to him, by the answers of those who are made parties and by the evidence in the case, the decree will be reversed." Hopkins et al. v. Roseclare Lead Company, 73 Ill. 373.

In this case the necessity of the trustee, Barker, being made a party appeared not only by the

answer of those who were made defendants or the evidence, but by the complainant's own proof.

It seems remarkable that he, being within the jurisdiction of the court, and holding at the time the legal title to the premises sought to be reached by the decree, should not have been made a party defendant.

But this not having been done, it was error for the court below to decree a sale of said premises, so long as the trustee, who really held the feesimple title, was not before the court, and for this error the decree of the court below is reversed and cause remanded.

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AFTER a verdict of guilty had been returned by a jury against an accused for the offense of obtaining by false pretenses the signature of a firm to a check of $850, and in support of a motion for a new trial affidavits were filed proving that the bailiff who had the jury in charge, and who had testified on the trial on the part of the prosecution to material facts against the prisoner, was with the jury in their room the greater part of the time while they were deliberating on their verdict, and no explanation was made of the presence of the officer with the jury in their consultations together, and the state made no showing that the rights of the prisoner were not prejudiced by the acts and conduct of such officer and witness: Held, that the verdict should have been set aside and a new trial granted.

APPEAL from Linn County.

W. R. Biddle, for the state; Snoddy & Eley, for defendant.

HORTON, C. J., delivered the opinion of the


After the appellant, A. J. Snyder, was discharged by this court in the case of ex parte Snyder, reported in 17 Kas. 542, and 5 Cent. L. J. 307, he was arrested for having obtained by false pretenses, on November 28th, 1876, the signature of the firm of Messrs. Hood & Kincaids to a check of $850, and having also obtained by like pretenses the possession of the check after it had been certified. Under the information subsequently filed against him, he was convicted on one of the counts, and his punishment assessed at three years' confinement at hard labor in the penitentiary. He has assigned a number of errors committed by the district court on his trial, only one cf which it is necessary for us to notice in this opinion. This relates to the presence of the bailiff of the jury in their room during their deliberations. The facts are, that one H. H. McGlothlin

was a material witness for the state and testified on the trial that he had a conversation with Snyder, at the depot at Kansas City, Mo., about December, 1876, concerning the $3,850 obtained by Snyder, and that Snyder, in talking about the matter, stated that D. A. Painter & Son owed him $3,900 and this was one way, or the only way he had to get even with them. After the jury had been charged by the court, this witness was appointed the bailiff to have the charge of the jury.

It appeared from the affidavits filed on the part of the appellant on his motion for a new trial before the inferior court, that the jury retired for deliberations a little after twelve o'clock on the morning of the 1st day of August, 1877, and were out many hours before they agreed upon a verdict; that said McGlothlin remained in the room with the jury during their deliberations and their discussion of the case the greater portion of the time they were absent from the court-room, and was actually present with them while they were considering what their verdict should be.

No counter-affidavits were filed, and all the statements contained in these affidavits we may assume to be true. We suppose it must be conceded that the continued presence of the officer in the jury-room during their deliberations was an irregularity, and the question is presented whether such conduct will render the verdict void and require a setting of it aside, in the absence of all explanation of the reasons of the presence of the officer with the jury, and in the absence of all showing whether the accused was prejudiced.

It was held in State v. Mulkins, 18 Kas. 16, that where the court allows the jury to separate and fails to admonish them as required by law, it will be presumed, in the absence of anything to the contrary, that the rights of the defendant were prejudiced during said separation, because of such failure, and the burden of proving that the rights of the defendant were not so prejudiced rests upon the prosecution.

In Madder v. State, 1 Kas. 340, it was stated: "It is of the utmost importance that triers, who pass upon the lives and liberties of men, should so act that no possible suspicion can attach to them of having been in a position where improper influences, prejudicial to the accused, or in his favor, may have operated on their minds. Where the opportunity for such influences is afforded, if the verdict is against the accused, he is entitled to the presumption that the irregularity has been prejudicial to him, and it is incumbent on the state to show that no such injury could have occurred by reason of the irregularity."

In view of the law thus stated, and the provision of the criminal code, that the court shall grant a new trial "when the verdict has been decided by means other than a fair expression of opinion on the part of all the jurors." if the irregularity of the officer could have affected the rights of the prisoner injuriously, we are required to undo what was improperly done. Can we say it is no harm for a bailiff, who has been produced on the part of the state in a criminal action to testify to material facts against an accused, to be with the jury in

their deliberations? This certainly would be a very unsafe rule, if answered in the affirmative. If the bailiff in this very case had been the prosecuting witness, John Hood, and he had acted as Mc Glothlin did, no argument would be needed to show the gross impropriety of sanctioning such proceedings, and the fact that the bailiff only testified to a few material matters instead of many, as Hood did, lessens, perhaps, the probabilities of improper influences being used towards the jury, but does not convince us that his presence might not have been prejudicial. The actual presence of the bailiff was not only unfair to free and private deliberation by the jury, but was a constant menace to the jurors who might have wished to question the facts testified to by the witness. Would not his presence have been likely to have deterred discussion upon his own evidence and thereby prevented a fair expression of opinion on the part of the jurors. The very fact that this witness gave evidence against the prisoner at the instance of the prosecution might have induced the belief, in the minds of some of the jurors, that he believed the defendant guilty and was favorable to his conviction, and with this idea some of them might have hesitated to express themselves as freely in his presence as if allowed to consult and converse in his absence. An officer's presence, to use the mildest language, under the circumstances. is a restraint upon the deliberations of a jury, entirely at variance with the seclusion and privacy which the wise provisions of the law attempts and intends to secure to its members, when they have retired to agree upon a verdict. Such restraint should not be imposed upon jurors. In this case there seems to be no excuse therefor, and no reason given why it took place. We cannot be too strict in guarding trials by jury from improper influences, and in compelling a rigid and vigilant observance of all the provisions of the statutes tending to preserve the purity of such trials. The verdict, when returned into court, must command entire confidence. It must be secure from all improper bias and even from the suspicion of improper bias.

We are clearly of opinion that the law does not sanction a verdict surrounded with the opportunities for improper influences as this was, and that the district court erred in refusing to grant a new trial.

It is therefore ordered that the verdict of the jury and the sentence and judgment of the court be annulled and avoided; that the case be remanded for a new trial; and it is further directed that the appellant be returned from the state penitentiary and delivered over to the jailor of Linn county, there to abide the order of the district court of said county.

All the justices concurring.

"THERE'S no such word as fail," said Cardinal Richelieu; but then our bankruptcy laws had not been invented.-Figaro.





English High Court of Justice, Queen's Bench Division, April 15, 1878.

THE defendant put a dangerous spiked hurdle in a private road over which he and others had rights of way. Some person, without the knowledge of the defendant, moved the hurdle a few yards. On a dark night, the plaintiff, who was not a trespasser, without negligence, and thinking to avoid the original position of the hurdle, came into collision with it, and was injured: Held, that the plaintiff could recover from the defendant. Mangan v. Atterton, 4 H. & C. 388, L. R. 1 Ex. 239, commented on.

This was a motion for judgment.

The action was tried before Cockburn, C. J., when a verdict was entered for the plaintiff for £200, subject to the opinion of the court on certain special findings.

The facts and findings sufficiently appear in the judgment.

Willis, Q. C. (Glyn with him), for the plaintiff, showed cause; Hannen (A. L. Smith with him), for the defendant, supported the rule.

The following authorities, besides those noticed in the judgment, were cited: Cordy v. Hill, 6 W. R. 575, 4 C. B. N. S. 556; Lynch v. Nurdin, 1 Q. B. 29; Ionides v. Universal Marine Insurance Company, 11 W. R. 858, 14 C. B. N. S. 259; Mayne on Damages, p. 27; Hoey v. Felton, 10 W. R. 78, 11 C. B. N. S. 142; Blagrave v. Bristol Waterworks Company, 1 H. & N. 369, 5 W. R. C. L. Dig. 137. April 15.-The judgment of the court (CockBURN, C. J., and MANISTY, J.) was read by


This is a case of considerable nicety, and which, so far as the precise facts are concerned, presents itself for the first time.

The defendant is in the occupation of premises which abut on a private road leading to certain other premises as well as to his. The road consisted of a carriage road and a footway. The soil of both is the property of a different owner; the defendant has no interest in it beyond the right of way to and from his premises. The defendant uses his premises as a place where athletic sports are carried on by persons resorting thereto for that purpose for their own amusement. His customers, finding themselves annoyed by persons coming along the road in question in carts and vehicles and stationing themselves opposite to his grounds and overlooking the sports, the height of the carts and vehicles enabling them to see over the fence, the defendant erected a barrier across the road for the purpose of preventing vehicles from getting so far as his grounds. This barrier consisted of a hurdle set up lengthways next to the footpath, then two wooden barriers armed with spikes, commonly called chevaux de frise; then there was left an open space through which a vehicle could pass; then came another large hurdle set up lengthways, which blocked up the rest of the road. At ordinary

times the space between the two divisions of the barrier was left open for vehicles to pass which might be going to any of the other premises to which the road in question led. But at the times when the sports were going on, a pole, attached by a suitable apparatus, was carried across from the one part of the barrier to the other, and so the road was effectually blocked.

Amongst the houses and grounds to which this private road led was that of a Mr. Bruen. On the evening on which the accident which gave rise to the present action occurred, the plaintiff, who occupied premises in the immediate neighborhood, accompanied Mr. Bruen, by the invitation of the latter, to Mr. Bruen's house. It was extremely dark, but being aware of the barrier and the opening in it they found the opening, the pole not being then set across it, and passed through it in safety. But on his return, later in the evening, the plaintiff was not equally fortunate. It appears that in the course of that day, or the day previous, some one had removed one of the chevaux de frise hurdles from the place where it had stood, and had placed it in an upright position across the footpath. Coming back along the middle of the road, the plaintiff, feeling his way, passed safely through the opening in the centre of the barrier; having done which, being wholly unaware-it being too dark to see-that there was any obstruction on the footpath, he turned on to the latter, intending to walk along it the rest of the way. He had advanced only two or three steps when his eye came into collision with one of the spikes, the effect of which was that the eye was forced out of its socket. It did not appear by whom the chevaux de frise hurdle had been thus removed, but it was expressly found by the jury that this was not done by the defendant or by his authority. The question is whether the defendant can be held liable for the injury thus occasioned.

It is admitted that what the defendant did in erecting this barrier across the road was unauthorized and wrongful, and it is not disputed that the plaintiff was lawfully using the road. There is no ground for imputing to him any negligence contributing to the accident.

The jury have expressly found, in answer to a question put to them by me, that the use of the chevaux de frise in the road was dangerous to the safety of persons using it.

The ground of defense in point of law taken at the trial and on the argument of the rule was that, although if the injury had resulted from the use of the chevaux de frise hurdle as placed by the defendant on the road, the defendant, on the facts as admitted, or as found by the jury, might have been liable, yet as the immediate cause of the accident was not the act of the defendant, but that of the person, whoever he may have been, who removed the spiked hurdle from where the defendant had fixed it and placed it across the footway, the defendant could not be held liable for any injury resulting from the act of another.

On the part of the plaintiff it was contended that as the act of the defendant in placing a dangerous instrument on the road had been the primary cause

of the evil, by affording the occasion for its being removed and placed on the footpath, and so causing the injury to the plaintiff, he was responsible in law for the consequences. Numerous authorities were cited in support of this position.

The first is the case of Scott v. Shepherd, 3 Wils. 403, and 2 Wm. Bl. 892. In that case the defendant threw a lighted squib into a market-house where several persons were assembled. It fell upon a standing, the owner of which, in self-defense, took it up and threw it across the markethouse. It fell upon another standing, the owner of which in self-defense took it up and threw it to another part of the market-house, and in its course it struck the plaintiff and exploded and put out his eye. The defendant was held liable, although, without the intervention of a third person, the squib would not have injured the plaintiff.

In Dixon v. Bell, 5 M. & S. 198, the defendant, having left a loaded gun with another man, sent a young girl to fetch it, with a message to the man, in whose custody it was, to remove the priming, which the latter, as he thought, did, but as it turned out, did not do effectually. The girl brought it home, and thinking that the priming having been removed the gun could not go off, pointed it at the plaintiff's son, a child, and pulled the trigger. The gun went off and injured the child. The defendant was held liable. "As by his want of care," says Lord Ellenborough, "that is, by leaving the gun without drawing the charge, or seeing that the priming had been properly removed, the instrument was left in a state capable of doing mischief, the law will hold the defendant responsible. It is a hard case, undoubtedly; but I think the action is maintainable."

In Ilott v. Wilkes, 3 B. & Ald. 304, the wellknown case as to spring guns, it became necessary to determine how far a person setting a spring gun would be liable to a person injured by such a gun going off, even though such a person were a trespasser, inasmuch as the plaintiff, having had notice that spring guns were set in a particular wood, had voluntarily exposed himself to the danger. But both Mr. Justice Bayley and Mr. Justice Holroyd appear to have thought that, without such notice, the action would have lain, the use of such instruments being unreasonable and disproportioned to the end to be attained, and dangerous to the lives of persons who might be innocently trespassing. Looking to their language, it can scarcely be doubted that, if instead of injuring the plaintiff the gun which he caused to go off had struck a person passing lawfully along a path leading through the wood, they would have held the defendant liable.

In Jordin v. Crump, 8 M. & W. 782, the use of dog-spear was held not to be illegal; but there the Injury done to the plaintiff's dog was alone in question. If the use of such instrument had been productive of injury to a human being, the result might have been different.

In Illidge v. Goodwin, 5 C. & P. 192, the defendant's cart and horse were left standing in the street without any one to attend them. A person

passing by whipped the horse, which caused it to back the cart against the plaintiff's window. It was urged that the man who whipped the horse, and not the defendant, was liable. It was also contended that the bad management of the plaintiff's shopman had contributed to the accident. But Chief Justice Tindal ruled that even if this were believed it would not avail as a defense. "If," he says, "a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done."

Lynch v. Nurdin, 1 Q. B. 29, is a still more striking case. There, as in the former case, the defendant's cart and horse had been left standing unattended in the street. The plaintiff, a child of seven years of age, playing in the street with other boys, was getting into the cart, when another boy made the horse move on, the plaintiff was thrown down, and the wheel of the cart went over his leg and fractured it. A considered judgment was delivered by Lord Denman. He says: "It is urged that the mischief was not produced by the mere negligence of the servant, as asserted in the declaration, but at most by that negligence in combination with two active causes-the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart, and so committing a trespass on the defendant's chattels. On the former of these two causes no great stress was laid, and I do not apprehend that it can be necessary to dwell on it at length; for, if I am guilty of negligence in leaving anything dangerous where I know it to be extremely probable that some other person wi.. unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first." And then, by way of illustration, the chief justice puts the case of a game-keeper leaving a loaded gun against the wall of a play-ground where school boys were at play, and one of the boys in play letting it off and wounding another. "I think it will not be doubted," says Lord Denman, that the game-keeper must answer in damages, etc., the wounded party, This," he adds, "might possibly be assumed as clear in principle, but there is also the authority of the present Chief Justice of the Common Pleas in its support in Illedge v. Goodwin." It is unnecessary to follow the judgment in the consideration of the second part of the case, namely, whether the plaintiff, having contributed to the accident by getting into the cart, was prevented from recovering in the action, as no such question arises here. In Daniels v. Potter, 4 C. & P. 262, the defendants had a cellar opening to the street. The flap of the cellar had been set back while the defendant's men were lowering casks into it, as the plaintiff contended, without proper care having been taken to secure it. The flap fell and injured the plaintiff. The defendant maintained that the flap had been properly fastened, but also set up as a defense that its fall had been caused by some children playing with it. But the only question left to the jury by Chief Justice Tindal was

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