RECENT CASES. 215 Constitutional Law — Mandamus. — Held, that a State court cannot issue a mandamus against the governor of the State to compel him to perform an official duty, whether or not that duty is a ministerial one. People v. Morton, 50 N. E. Rep. 791 (N. Y.). See Notes. Constitutional Law — Presumption of Innocence. — A statute provided that upon a second conviction for certain crimes, a heavier penalty should be imposed. Defendant, being charged with robbery as a second offence, offered to admit the previous conviction, and asked to have evidence of it excluded from the jury. Held, that by imposing a different penalty for the second offence, it is made a new crime, and the first conviction must be proven to the jury to establish the new offence ; and that it is not contrary to the Constitution of New York to submit proofs of the former convic- tion to the jury, because it may deprive the defendant of the benefit of the presumption of his innocence. People v. Sickles, 26 App. Div., Sup. Ct., 470 (N. Y.). Two judges dissenting. Although the presumption of innocence has in recent times been held by most re- spectable authority to be affirmative evidence for the accused, Cuffiii v. United States, 156 U. S. 432, 460, this appears to be the first time it has been judicially claimed that it could not be constitutionally weakened by evidence introduced in the first instance by the prosecution tending to show the accused's bad character. No authority is cited for this position, and it seems untenable. No one has any vested right to rules of evidence, and the legislature can change them at will, nor need it make them uniform for all kinds of crime. It is not held unconstitutional for the legislature to make the possession of certain property, or the doing of certain acts, presumptive evidence of the commission of an offence, legislation which must certainly weaken the presumption of the innocence of the accused. People v. Cannon, 139 N. Y. 32. The dissenting opinion is, perhaps, but another vindication of the present tendency to extend constitu- tional guarantees into fields they were never intended to include. Constitutional Law — Right to Jury Trial in Territories — Ex post facto Law. — The defendant committed a felony in Utah while it was a Territory. After Utah became a State he was tried for this felony, and was convicted upon a ver- dict by eight jurors, as provided by the Constitution of Utah. Held, that the con- viction was void, since the provision in the Utah Constitution, as applied to the defendant, was ex post facto diud invalid. Thompson v. State 0/ Utah, 18 Sup. Ct. Rep. 620. See Notes. Contracts — Guarantee — Death of Guarantor. — In consideration that the plaintiffs would discount bills for B, A guaranteed the account. Held, that this guarantee terminated, not on A's death, but when notice of his death reached plaintiffs. Doddw. Whelan, [1897] I I. R. 575. This case follows the decision in Bradbury v. Morgan, i H. & C. 249, and certain dicta in Coulthart v. Clementson, 5 Q. B. D. 42, and in Harris v. Fawcett, L. R. 8 Ch. 866. But Offord V. Davies, 12 C. B. N. s. 748, held that such a guarantee is determinable by notice from the guarantor, considering such a guarantee as only an offer for a series of unilateral contracts, and therefore revocable at any time as to discounts not yet made. This view, certainly the most natural one, leads inevitably to the conclusion that, since an offer cannot be accepted after the death of the offeror, the death of the guarantor revokes the guarantee at once. See Jordan v. Dobbins, 122 Mass. 168. Apparently there is only one way to reconcile the principal case with the result reached in Off'ord v. Davies. We may say that such a guarantee ripens into a complete con- tract upon the first discount ; but, since the party guaranteed is not obliged to continue discounts, equity requires that the guarantor should have the right to withdraw by giving reasonable notice, unless prevented by some provision of the contract. This, however, seems a forced construction. See Gay v. Ward, 67 Conn. 147. Contracts — Restraint of Trade — Trust Act of 1890. Plaintiff contracted to convey to the defendant for a limited period the good-will of his freighting busuiess, covenanting not to solicit freight or compete in the business during the term. In a suit for the purchase-money, held, that the covenant was not void under the Trust Act of 1890, and thus did not vitiate the contract. Brett v. Ekel, 51 N. Y. Supp. 573 (Sup. Ct., App. Div., First Dept.). See Notes, 12 Harv. Law Rev. 129. Contracts — Sheriff's Bond — Lynching. — In a suit on a sheriff's bond, the plaintiffs alleged that their father, having been arrested on an accusation of murder, was mtrusted to the sheriff's charge, and that, through the latter's negligent guarding of the prisoner, a mob was enabled to break into the jail and lynch the accused. On demurrer, held, that the declaration discloses no cause of action. State,use of Cocking^ V. Wade^ 40 Atl. Rep. 104 (Md.). 28
