was himself blown to pieces, and Mr. Laidlaw was laid low and severely injured. He insisted that this was a species of "put" that Sage had no right to indulge in, and sued for damages. The complaint was dismissed at the trial, on the ground that the burden was on the plaintiff to show that without Sage's act he would not have been injured. This is now reversed by the general term, Van Brunt, P. J., observing : — "If Sage had been acting innocently, if it could not be found from the evidence that he intentionally placed this man between himself and the expected danger, this rule might apply. Hut where his very act of placing the plain tiff in the position mentioned may have been a wrong toward the plaintiff, and was done by defendant with the intent of shielding himself from injury, we fail to conceive why the burden of proof is not upon the defendant, rather than upon the plaintiff, to show that without defendant's act the plaintiff would have been equally injured. And it seems to us that there is where the fallacy of the defendant's argument lies. In all the cases cited the party proceeded against was doing a lawful act, or was attempting to pro tect his property or person in a lawful manner, and injury resulted. We are of opinion (therefore), in view of the fact that from this evidence the jury might find that the defendant used this plaintiff as a shield against apprehended danger of which he knew the plaintiff to be ignorant, that a dis missal of the complaint cannot be sustained." We are of opinion that Sage's lawyers have neg lected to plead their strongest defence, namely, con tributory negligence. When any man finds Russell Sage taking his hand in both of his, it is his duty to run. It might have been different with the woman.
Individual Lynching. — Under the title, "A Possible Check to Individual Lynching," the " New York Law Journal " gives the text of a decision of the Georgia Supreme Court, the point of which is stated by the court as follows : — "If a husband, knowing of his wife's criminal infidelity, deliberately lays a trap for her paramour by pretending to him and her that he (the husband) is going on a journey, when it is his purpose not to go, but to conceal himself and lie in wait at or near his home, for the purpose of killing the paramour in case he should be caught in the gu1lty act, at the same time expecting and designing so to catch him, the paramour has a right to defend himself against a deadly assault made by the husband under such circumstances, though the assault be made while the guilty act is in progress; and if the husband be killed as matter of necessity, to prevent his assault from resulting in death, the homicide is justif1able." It had previously been held in Reed v. State, ii Tex. Ct. App. 509; 40 Am. Rep. 795, that where adultery is only a misdemeanor, the paramour,
resisting an attack made upon him by the husband, and killing him to save his own life, is guilty only of manslaughter. The Georgia decision is good law, sound sense, and pure morals. The Georgia decision concludes : — "An examination of those authorities will show that, at common law, it was manslaughter for a husband to kill an adulterer, even when caught in the very act of illicit intercourse with the slayer's wife; and it is only by virtue of section 4334 of our Code, which follows the sections defining justifiable homicide, and declares that ' all other instances which stand upon the same footing of reason and justice as those enumerated shall be justifiable homicide,' that the killing of an adulterer by the husband is ever rendered completely justifiable. But for this section, the common law rule would now be of force in this State." We quite agree with the " Journal " when it says : "It is to be regretted that the common law rule was not allowed to stand. It is much more excusable to inflict a violent death as punishment for rape than for adultery. Yet the more refined and better educated classes, both North and South, have recently been profoundly disturbed by the numerous lynchings of persons guilty of the former offense. The essential doctrine of Lynch law is that some offenses are punishable by death at the hands of the official hangman after trial by jury, and other offenses are punish able by death through private enterprise, and without any trial at all. The slaying of a would-be adulterer by a husband is, according to the principles underlying civilized society, justifiable only for the protection of the wife from sexual intercourse to which she is not a consenting party, and in case the continuation of an assault cannot be pre vented with safety to both husband and wife without force which may result in the death of the person committing it. The present decision is, however, to be weleomed because it refuses to further extend the authorized sphere of in dividual Lynch law."
Photographs. — Our readers may add to this heading in the articles on "Practical Tests in Evi dence," the case of Cooper v. St. Paul City Ry. Co., Minnesota Supreme Court, August, 1893, an action for personal injuries by negligence. The court said : — "For some months prior to the trial the plaintiff had resided in Chicago, Ill., and his testimony was taken by deposition. It was claimed that his physical condition was such that he could not be present at the trial. Against the objections of defendant's counsel, a photograph, which, according to the testimony, had been taken a few days before the trial, and was ' a true and correct picture and representation of those parts of Mr. Cooper's body that it purports to show,' was received in evidence. This ruling is specified as error. We are assured by counsel, in their brief, that the expression upon the face of a lost soul, as portrayed by the combined imaginations of Dore and Dante, would be extremely jovial in comparison with that depicted upon plaintiff's face in this work of art. We are not prepared to disagree with counsel in this contention
