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any cask or package containing five gallons or more, without having thereon each mark and stamp required therefor by this act, shall be forfeited to the United States."

Section 25 does not specifically impose the duty upon the rectifier or wholesale dealer of causing or procuring the filled casks to be gauged, inspected or stamped. It is made the duty of the gauger to do the gauging, inspecting and stamping, but not in terms of the dealer to cause it to be done. If there was nothing more, it would be clear that any omission of the rectifier or dealer to act in the matter would not be a cause of forfeiture. Section 96 was, however, undoubtedly intended to impose upon rectifiers aud wholesale liquor dealers the duty of doing or causing to be done every thing pertaining to their respective occupations which was necessary in order to enable others acting under the law to do what was required of them. If they failed in this, and there was no other penalty provided for the neglect, they were subjected to the provisions of that section. If, however, by any other section a specific duty was imposed on them which, if performed, would enable the other parties to act in the proper manner, and a penalty was prescribed for the omission to perform such duty, they were not to be proceeded against under section 96. It was not intended by Congress in that section to add to the already-existing penalties for an offense, but to provide for omitted cases only. The object evidently was to so contrive the machinery of the law that when one part was set in motion the rest must follow.

If, then, it is found that by some other section of the act a penalty is imposed upon the rectifier or wholesale dealer as a consequence of the failure of the gauger to stamp the casks filled on his premises for shipment, sale or delivery, it may fairly be presumed that this was the penalty he was to suffer for neglecting to procure the stamping to be done, for the gauging and inspecting under the law are only preliminary to the stamping. The only neglect he could be charged with under section 96 would be a failure to make known at the proper office that there were on his premises packages requiring the action of the gauger under section 25. Now, section 57 provides that if packages of distilled spirits are found on his premises containing five gallons or more each, which do not have upon them each mark or stamp required by the law, they shall be forfeited. This, then, is a specific penalty provided for the failure to procure or cause the stamping to be done on packages of five gallons and upward, and it follows the packages wherever found. The unstamped packages in this case contained each twenty gallons or more.

It has been contended, however, that this special provision of section 57 applies only to distilled spirits on hand when the act of 1868 was passed. Such seems to have been the opinion of Judge Ballard, of the Kentucky district, as reported in the case of the United States v. Thirty-seven Barrels of Apple Brandy, 11 Int. Rev. Rec. 136, but since that time, in 1871, Judge Lowell, of the Massachusetts district, has decided the other way. United States v. Ninety-five Barrels of Distilled Spirits, 14 Int. Rev. Rec. 6. Judge Knowles, of the Rhode Island district, afterward followed this ruling of Judge Lowell. United States v. Thirty-four Barrels Distilled Spirits, 13 Int. Rev. Rec. 188. Other able district judges have decided that section 96 did apply to this class of omissions, but it nowhere ap

pears from their opinions that their attention was called to the provision of section 57. United States v. One Rectifying Establishment, decided in 1869, in the Northern District of Mississippi, 11 Int. Rev. Rec. 45, and United States v. One hundred and thirty-three Casks Distilled Spirits, decided not long after in the California district, 11 Int. Rev. Rec. 191. The circuit judge in this case has decided in accordance with the opinions of Judges Lowell and Knowles, and held that section 57 did apply. The rulings of two commissioners of internal revenue are to the same effect, one dated September 10, 1869 (10 Int. Rev. Rec. 97), and the other, May 13, 1871 (13 Int. Rev. Rec. 170), and it seems to us that this is the proper construction of the law. It is true that the clause referred to is found in a section of the statute which relates especially to spirits on hand when the law was passed, but it is general in its terms and broad enough to cover the case. As was well said by Judge Lowell in the case against ninety-five barrels of whisky, "to limit the meaning will not only require us to read act' as if it were 'section,' but to disregard each,' because there is but one particular stamp required by this section, and this would naturally be mentioned as the stamp required by the section,' or some such expression." And, again, as is also said by the same judge, "it is proper and usual that the goods which are not stamped should be forfeited, and it is so provided in respect to cigars and tobacco by sections 70 and 90, but there is no provision for forfeiting unstamped spirits, unless it be the one in question."

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The rules and regulations which the commissioner of internal revenue is authorized by section 2 to prescribe cannot have the effect of bringing the case under the operation of the penalty provided in section 96, if it was already covered up by section 57. The regulation of the department cannot have the effect of amending the law. They may aid in carrying the law as it exists into execution, but they cannot change its positive provisions.

The judgment of the Circuit Court is affirmed.

BANKRUPTCY OF CORPORATIONS - WHEN POLICY-HOLDERS CORPORATORS.

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF NEW YORK, DECEMBER 14, 1877.

IN RE ATLANTIC MUTUAL LIFE INSURANCE COMPANY. A mutual life insurance company in which the policyholders were entitled to vote for trustees, and to share in the profits, was placed in the hands of a receiver under the State Laws. Subsequently, a trustee of the company filed a petition in bankruptcy in the name of the corporation, and it was adjudged bankrupt. The receiver applied to have the adjudication set aside. Held, (1) that the receiver had a standing in court to make the motion; (2) that the question of the solvency of the company could not be examined on the motion, and (3) that policy-holders of the company were corporators within the meaning of section 122, chap. 6, title 61 of the United States Revised Statutes, and an adjudication in bankruptcy could not be made against the corporation, without giving them an opportunity to be heard.

MOTION to set aside an adjudication in bankruptcy.

The facts appear in the opinion.

WALLACE, J.-Upon the application of the AttorneyGeneral of this State, after the opposition on behalf of the Atlantic Mutual Life Insurance Company, that corporation was restrained from the further prosecution of its business by a decree of the court having jurisdiction in the premises, and a receiver was appointed by such decree, who has filed his bond, taken

possession of the assets of the company and continues in the discharge of his trust. The proceeding was conducted conformably to chapter 902 of the Laws of 1869. Subsequently a petition in bankruptcy was filed in this court in the name of the corporation by a trustee thereof, upon which the corporation was adjudicated a bankrupt. The receiver now moves to set aside such adjudication, alleging that the proceedings in bankruptcy were not in conformity with the bankrupt law and that the corporation was not insolvent.

First-Among the several questions presented is one relating to the right of the receiver to be heard. I do not doubt that he has a sufficient standing in court for the purpose of the motion. He is in possession of the assets of the bankrupt, and if he chooses to relinquish his lien upon the funds, can doubtless prove a claim against the bankrupt for his expenses in executing his trust, and for his commissions or services.

Second-Whether or not the corporation was insolvent is a question not open on this motion. The decisions are, that in the case of an individual who has been adjudicated a bankrupt on his own petition, the adjudication cannot be assailed by proof that he was not, in fact, insolvent; that if he owes debts and resides within the jurisdiction, as specified in section 5014, chapter 2, title LXI of the Revised Statutes of the United States, the court has jurisdiction to entertain his petition and adjudicate him a bankrupt; that the filing of the petition is per se an act of bankruptcy, and so declared by the section in question, and the solvency or insolvency of the debtor is not material. There is no distinction in this regard between proceedings by individuals and by corporations.

Third-The serious and doubtful question in my view is whether the policy-holders in the corporation are corporators within the meaning of section 122, chap. 6, title LXI of the Revised Statutes of the United States. If they are, not having been notified of the meeting called for the purpose of authorizing proceedings in bankruptcy, and the proceedings not having been authorized by the vote of the majority of the corporators, the filing of the petition was not the act of the corporation within the section, and a condition essential to the jurisdiction of this court does not exist; in which case, although the proceeding might not be assailable collaterally, the adjudication may be attacked in the proceeding itself, by a motion to set it aside.

A corporator is one who is a member of the corporation, one of the stockholders or constituents of the body corporate.

The charter of this corporation provides that every stockholder shall be entitled to one vote for trustee, for each and every share of the capital stock standing in his or her name on the books of the company, and every holder of a policy of the company for the whole term of life, or an endowment policy for five hundred dollars and upward, and which has been in existence for one full year, shall be entitled to one vote for each five hundred dollars so insured.

The charter also provides that in each year, after placing to the credit of the stockholders seven per cent on the amount of the capital, and a further sum of one-fifth the residue of the profits as a reserve fund for retiring the capital stock, the remaining four-fifths shall be placed to the credit of the policy-holders, who to that extent shall participate in all the profits of the company until the retirement of the capital stock,

after which the whole profits shall be divided among the policy-holders.

While policy-holders are not holders of scrip, which evidences their right to an interest in the assets of the corporation, and while their interests are not transferable, like those of the stockholders, in all other respects their position toward the corporation is the same as that of the stockholders.

Neither are personally liable for assessments, or otherwise, beyond the sum fixed by contract with the company; the stockholders' liability being that assumed in their subscriptions for stock, and the policyholders' that assumed in the policies issued to them. Both have a voice in the management and a share in the profits, the extent of which is not material in ascertaining their legal status. There is a community, though not an equality of interest in the assets and of control in the management which constitutes both classes members of the corporation.

I think it is the intent of the section of the Bankrupt Law, under which proceedings in bankruptcy by corporations are authorized, that the voice of all who have a right to participate in the management of the corporation and to share in its assets, shall be heard and obeyed before an adjudication, which is essentially a dissolution of the corporation, shall be obtained.

It is ordered that all proceedings in bankruptcy be set aside.

Henry Smith, N. C. Moak and Wm. C. Ruger for the motion; Amasa J. Parker, Geo. L. Stedman D. J. Norton opposed.

UNITED STATES SUPREME COURT ABSTRACT.

CONTRACT.

What necessary to constitute implied contract with United States.-To constitute an implied contract with the United States for the payment of money upon which an action will lie in the Court of Claims, there must have been some consideration moving to the United States, or they must have received the money charged with a duty to pay it over, or the claimant must have had a lawful right to it when it was received, as in the case of money paid by mistake. No such implied contract with the United States arises with respect to moneys received into the treasury as the proceeds of property forfeited and sold under the confiscation act of July 17, 1862. Judgment of Court of Claims affirmed. Knote, appellant, v. United States. Opinion by Field, J.

DEFENSE.

Of orders of military authorities in action for trespass. In this case action was brought against defendant below for trespass in cutting wood upon the land of plaintiff below. As a defense it was shown that the wood was cut by defendant as an authorized agent of the United States for military purposes under the direction of the military authorities, etc., and defendant also pleaded an order reading thus: "Knoxville, Teun., May 9, 1865. James S. Beard is hereby authorized to cut wood for the U. S. M. R. on the lands of Joseph Burts, John Lyle, Dillard Love, by order of the superintendent. D. V. Brown, Wood Agent." Held, that the order was admissible, and furnished a complete defense under the provisions of the acts of Congress of May 11, 1866, and March 3, 1863, and the fact that it was informal did not render it ineffective as a defense. Decree of Supreme Court of Tennessee

reversed. Beard, plaintiff in error, v. Burts. Opinion by Strong, J.

LACHES.

What will amount to, in instituting equitable action to set aside judgment for fraud.-The authorities of a county filed a bill in equity to enjoin a judgment which it was claimed had been procured by the fraud and conspiracy of the judgment creditors and the county clerk and treasurer upon forged county warrants. Upon the 5th of September, 1870, when it was known that there were a large number of spurious warrants out, the supervisors of the county were expressly notified of the existence of the judgment, and without making any investigation passed a resolution imposing a tax to apply upon the judgment. The tax was imposed and a payment was made on the judgment in June following. In that month counsel was employed to investigate in relation to the fraudulent warrants, who reported that nothing could be done until the warrants were found, they not being in their proper place. In September, 1871, a second tax, applicable upon the judgment, was ordered by the supervisors. The warrants were found in the fall of 1872, and the bill was filed half a year later. There was no evidence implicating defendants below in the fraud, by which it was claimed the judgment was obtained. Held, that the county was guilty of such laches as to render it not entitled to the relief sought. Duncan v. Lyon, 3 Johns. Ch. 356; Marine Ins. Co. v. Hodgson, 7 Cr. 336; 2 Sto. Eq.Jur., §§ 894-896; Sullivan v. Railroad Co., 4 Otto, 811; Smith v. Clay, Ambler, 645; Sample v. Barnes, 14 How. 75; Warner v. Packet, id. 584; Crease v. Simms, 5 id. 204; Bateman v. Willoe, 1 Sch. & Lef. 201; Murray v. Graham, 6 Paige, 622; Colloway v. Alexander, 8 Leigh, 114; Powell v. Stewart, 17 Ala. 719; Riddle v. Barker, 13 Cal. 295. Decree of United States Circuit Court, Iowa, reversed. Brown, appellant, v. County of Buena Vista, Iowa. Opinion by Swayne, J.

PARDON.

Effect of pardon and amnesty by President's proclamation, December 25, 1868: do not restore property previously confiscated. - The general pardon and amnesty granted by President Johnson, by proclamation, on the 25th of December, 1868, do not entitle one receiving their benefits to the proceeds of his property, previously condemned and sold under the confiscation act of 1862, after such proceeds have been paid into the treasury of the United States. Whilst a full pardon releases the offender from all disabilities imposed by the offense pardoned, and restores to him all his civil rights, it does not affect any rights which have vested in others directly by the execution of the judgment for the offense, or which have been acquired by others while that judgment was in force. And if the proceeds of the property of the offender sold under the judgment have been paid into the treasury, the right to them has so far become vested in the United States that they can only be recovered by him through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law. Kleins v. United States, 13 Wall. 147; Ex parte Garland, 4 id. 380; Armstrong's Foundry, 6 id. 769; United States v. Padelford, 9 id. 542; Armstrong v. United States, id. 155; Pargoud v. United States, 13 id. 156; Carlisle v. United States, 16 id. 151. Opin. Attorney-General, vol. 8, p. 281, Osborn v. United States, 1 Otto, 475; Matter of Deming, 10 Johns. 232. Judgment of Court of

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Grant by Congress to States for school purposes: construction of act authorizing formation of State government in Wisconsin: grant of lands occupied by Indians under treaty.- By the act of Congress of August 6, 1846, authorizing the people of the territory of Wisconsin to organize a State government, it was provided, among other things, upon the performance of certain conditions, which were complied with, "that section numbered sixteen (16) in every township of the public lands in said State, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said State for the use of schools." In an action between parties respectively claiming title to lands in a section numbered 16, under patents issued by the United States and the State of Wisconsin after such act went into effect, held, that by such act, the lands which might be embraced within those sections were appropriated to the State. They were withdrawn from any other disposition, and set apart from the mass of the public domain, so that no subsequent law authorizing a sale of lands in Wisconsin conld be construed to embrace them, although not specially excepted. All that afterward remained for the United States to do with respect to them, was to identify the sectious by appropriate surveys, etc. They could not be diverted from their appropriation to the State. Cooper v. Roberts, 18 How. Held, also, that the fact that at the time the act was passed the lands were included within a reservation which had been set apart for a tribe of Indians, by a treaty with the United States. The title of the Indians in such case is only that of occupancy. The United States retains and may dispose of the fee. Johnson v. McIntosh, 8 Wheat. 574, 579, 587; United States v. Cook, 19 Wall. 563; Clark v. Smith, 13 Pet. 201; Jackson v. Hudson, 3 Johns. 375; Veeder v. Guppy, 3 Wis. 462. Judgment of United States Circ. Ct., E. D., Wisconsin, affirmed. Beecher, executrix, plaintiff in error, v. Wetherby. Opinion by Field, J.

SET-OFF.

1. Set-off common to all systems of jurisprudence. Notwithstanding the general rule that all debts not solvable by their terms in something else are prima facie payable in legal tender money as ascertained by the acts of Congress, it is a principle of long standing in all systems of jurisprudence, that one debt or obligation may be set off or counterbalanced against another, so that while the obligation of both is recognized, both are satisfied in law, and discharged without the payment of any money in either, and this is done by the courts without the consent of the party, and against his will. Barker v. Braham, 2 Blackst. Rep. 869; Mitchell v. Oldfield, 4 Term Rep. 123; Simpson v. Hart, 1 Johns. Ch. 91; Simpson v. Huston, 14 Tex. 481; Merrill v. Souther, 6 Dana (Ky.), 305; Palmateer v. Meredith, 1 J. J. Marshall, 74; Davis v. Milburn, 3 Clarke (Iowa), 163. Judgment of Supreme Court of North Carolina affirmed. Blount, plaintiff in error, v. Windley. Opinion by Miller, J.

2. Set-off wholly within legislative control: judgment. -The extent to which mutual obligations may be set off against each other, when no rights of third parties interfere, is wholly within the power of legislative action, and to what extent this right of set-off may be

asserted against judgments, and what class of obligations may be so set off, and the mode of doing it, may be regulated by the legislature. Ib.

3. Statute passed after judgment obtained for bank, allowing notes of bank to be set off against it.-A statute, therefore, as that of North Carolina, passed after the bank or its commissioner had obtained a judgment, which authorizes the defendant to set off against it the circulating notes of the bank procured after the judgment, is, as between the bank or its commissioner and the defendant, valid, and does not impair the obligation of the contract sued on, or of the judgment. But if the rights of creditors of the bank, or any one else interested in the judgment, were such that they would have a right to have the judgment paid in lawful money, the case would be different. Ib.

TRUSTS.

Trustee mingling trust moneys with his own funds cannot claim to be allowed for losses sustained by payments in Confederate money. - Defendant below, who held moneys in trust for plaintiff, mixed them with his own, and invested them in his own name, with nothing whatever to indicate an appropriation for the purposes of trust. Held, that he could not charge the trust with losses sustained from payments to him in Confederate money upon investments made with the trust fund. Dashwood v. Elwell, 2 Ch. Cas. 57; Massey v. Banner, 4 Mad. Ch. 418; Wren v. Kiston, 11 Ves. 382; McAllister v. Commonwealth, 30 Penn. St. 538; Stanley's Appeal, 8 id. 435. Decree of U. S. Circ. Ct., S. D., Alabama, affirmed. Mitchell, appellant, v. Moore. Opinion by Waite, C. J.

COURT OF APPEALS ABSTRACT.

CONSTITUTIONAL LAW.

Appointment of commissioner to act as surrogate under 2 R. S. 80, § 54, not an appointment to a public office. -By an amendment of the Revised Statutes (2 R. S. 80, $54) made by Laws of 1830, chap. 320, § 20, power was conferred upon the chancellor, when neither the surrogate, first judge, nor district attorney of a county could act by reason of the disqualifications imposed by statute in respect to any will or the estate of any intestate, to issue a commission to some suitable person empowering him to act as surrogate. Provision had been made in the statutes for cases of vacancy in the office of surrogate. 2 R. S. 79, §§ 50, 54. Held, (1) that the provision did not authorize the appointment of a person to fill a vacancy in the office of surrogate; (2) that the power of the chancellor in such case was transferred to the Supreme Court and its judges by the Constitution of 1846, and Laws of 1847, chap. 280, § 16; and (3) that the appointment was not to a public office within the provision of the Constitution of 1846, art. 6, § 8, prohibiting judges of the Court of Appeals, justices of the Supreme Court, etc., from exercising any power of appointment to office." Order below affirmed. In re proving will of Hathaway. Opinion by Allen, J. (Folger, Rapallo and Earl, JJ., concur; Andrews, J., Church, C. J., and Miller, J., dissent.)

[Decided Nov. 20, 1877.]

CONVERSION.

Obtaining possession of note for purpose of destruction: when demand not necessary before action.-Plaintiff held a valid promissory note made by defendant, and payable in ten years, without interest. At the same time defendant owned a stock of merchandise

worth $4,000, which he offered to sell to plaintiff's husband for $3,000, if plaintiff would surrender the note. For the purpose of carrying out this agreement, the note was handed to defendant, who immediately tore his name therefrom, and then refused to complete the agreement for the sale of the goods. Held, that plaintiff was entitled to maintain an action for the conversion of the note, and a demand that the note be re-delivered to her was not necessary. Murray v. Burling, 10 Johns. 172; Decker v. Matthews, 12 N. Y. 313; Develin v. Coleman, 50 id. 531. Judgment of General Term reversed. Powell v. Powell. Opinion by Earl, J. [Decided Oct. 9, 1877.]

PRACTICE.

1. In Court of Appeals: when motion denied on ground of laches in making it.-Plaintiff, in June, 1864, took an appeal from an order of the Supreme Court reversing a judgment in favor of plaintiff and granting a new trial. In February, 1866, his attorney of record died, and no attempt was made to substitute another attorney. In May, 1874, the appeal was dismissed by the Commission of Appeals for want of prosecution, under the provisions of Laws 1873, chapter 9. Plaintiff had no attorney in the action from February, 1866, to May, 1877, and during these years took no steps to prosecute the appeal, nor did he inquire after it from 1874 to 1877. Held, that he had been guilty of such laches as to forbid the granting of a motion to vacate the order dismissing the appeal. Motion denied. McElwain v. Erie Railway Co. Opinion per curiam.

[Decided Nov. 20, 1877.]

2. In Court of Appeals: motion to reinstate appeal after dismissal and remittitur sent down.-Where after an appeal had been regularly dismissed and a remittitur sent down, and judgment thereon entered in the Supreme Court and execution issued upon the judgment, held, that a motion in this court to reinstate the appeal would not be entertained. The appellant should move in the Supreme Court to have the proceedings there vacated and the remittitur returned to this court to the end that he might make the motion to reinstate. Motion denied. Jones v. Adams, Opinion by Earl, J.

[Decided Nov. 20, 1877.]

SURROGATE.

Decree directing payment of creditor in full before final distribution gives no preference.-While a decree of a surrogate under 2 Revised Statutes, 116, section 18, directing payment by an executor or administrator of a debt owing by deceased person previous to the final distribution, if acted upon by the executor in good faith, will protect him in case the estate shall prove insufficient to pay the debts in full; if it remains unexecuted when the general order for distribution of the estate among creditors comes to be made it does not give the creditor in whose behalf it was issued a right to payment in preference to other creditors so as to entitle him to payment in full if the estate is insufficient to fully pay all the claims established against it. In such a case the decree is to give way to the paramount authority of the statute providing for equality between creditors of the same class, and it is not necessary to procure such decree to be formally vacated to enable the statute to have effect. Order below affirmed. In re Claim of Thompson. Opinion by Audrews, J.

[Decided Nov. 13, 1877.]

BENCH AND BAR.

Professor Samuel Tyler, of the law department of the Columbian University, Washington, D. C., died at Georgetown on the 15th inst. He was known to the profession through several works written or edited by him. These works are a biography of Chief Justice Taney, a treatise on Partnership, Stephen on Pleading, and Mitford & Tyler's Pleading and Practice in Equity.

George W. Rawson, justice of the Supreme Court for the Seventh Judicial District, died at Lyons, N. Y., on the 13th inst. He began his legal studies in the office of Hon. Mark H. Sibley, at_Canandaigua, and was admitted to the bar in 1851. In 1859 he was elected surrogate of Monroe county. In 1864 he was chosen special county judge, and was twice re-elected. He was elected to the position of Supreme Court judge in 1876, and entered upon the discharge of its duties at the commencement of the present year. The sickness with which he died attacked him while he was holding the Wayne Circuit on the 12th inst.

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In Harvey's Reminiscences of Webster just published, a meeting between Webster and Pinckney is given in the words of Mr. Webster himself. It took place after an argument before the Supreme Court, the first in which Webster had been opposed to Pinckney and in which the latter had been over-bearing and insulting. Says Mr. Webster: "Mr. Pinckney took his whip and gloves, threw his cloak over his arm and began to saunter away. I went up to him and said very calmly, 'Can I see you alone in one of the lobbies? He replied, Certainly.' I suppose that he thought I was going to beg his pardon and ask his assistance. We passed into one of the ante-rooms of the Capitol. looked into one of the grand jury rooms, rather remote from the main court-room. There was no one in it, and we entered. As we did so I looked in the door and found there was a key in the lock; and, unobserved by him, I turned the key and pnt it in my pocket. Mr. Pinckney seemed to be waiting with some astonishment. I advanced toward him and said: "Mr. Pinckney, you grossly insulted me this morning in the court-room, and not for the first time either. In deference to your position, and to the respect in which I hold the court, I did not answer you as I was tempted to do on the spot.' He began to parley. I continued: You know you did; don't add another sin to that; don't deny it; you know you did it, and you know it was premeditated. It was deliberate; it was purposely done; and if you deny it, you state an untruth. Now,' I went on, I am here to say to you once for all, that you must ask my pardou, and go into court to-morrow morning and repeat the apology, or else either you or I will go out of this room in a different condition from that in which we entered it.' I was never more in earnest. He looked at me and saw that my eyes were pretty dark and firm. He began to say something. I interrupted him. No explanations,' said I, 'admit the fact, and take it back. I do not want another word from you, except that. I will hear no explanations; nothing but that you admit it and recall it.' He trembled like an aspen leaf. He again attempted to explain. Said I: 'There is no other course. I have the key in my pocket, and you must apologize, or take what I give you.' At that he humbled down, and said to me: You are right; I am sorry; I did intend to bluff you; I regret it, and ask your pardon?' 'Enough,' I promptly replied, 'now, one promise before the door, and that is that you will to-morrow morning state to the court that you have said things which wounded my feelings, and that you regret it.' ney replied: 'I will do so.' Then I unlocked the door and passed out. The next morning, when the court met, Mr. Pinckney at once rose and stated to the court that a very unpleasant affair had occurred the morning before, as might have been observed by their houors; that his friend, Mr. Webster, had felt grieved at some things which had dropped from his lips; that his zeal for his client might have led him to say some things which he should not have said, and that he was sorry for having thus spoken. From that day, while at the bar, there was no man,' said Mr. Webster, who treated me with so much respect and deference as Mr. William Pinckney.'"

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NOTES OF RECENT DECISIONS. Burglary: entering bank at solicitation of detectives in charge. - A defendant, who has entered a bank at the solicitation of detectives rightfully in possession with the consent of the owner, cannot be convicted of burglary, no matter what his guilty intent. Ct. App., Texas, Oct., 1877. Speiden v. State (Texas L. J.). Conflict of law: place of contract as applied to note and mortgage. A promissory note made in Oregon and payable in Scotland is considered made in Scotland. Per Field, J. A mortgage upon real property in Oregon, to secure the payment of such a note, is considered made in Oregon, and its validity is to be tested by the laws of such State. Per Field and Deady, JJ. U.S. Circ. Ct., Oregon, Oct. 25, 1877. Oregon and Wash. Trust Ins. Co. v. Rathburn (Ch. L. News). Contributory negligence: party acting under the direction of the company's servant not guilty of.-F. called with his team at defendant's depot for freight. The company's agent directed him to a position at the sta

tion within a few feet of the track, informing him that no train would pass for half an hour. A train came within five minutes, and one of his horses was injured. Held, that he was not guilty of contributory negligence. Sup. Ct., Pennsylvania, Oct. 29, 1877. ghany V. R. R. Co. v. Findley (Pittsb. L. J.).

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Contributory negligence: leaving passenger car. passenger, leaving his seat in a passenger car (there being an abundance of room), while the train is in motion and going into the baggage car, where he is injured by falling baggage, upon the car being overturned, is guilty of contributory negligence, and no action lies for the injury. Sup. Ct., Illinois, Oct. 17, 1877. Peoria and R. I. R. R. Co. v. Lane (5 Cent. L. J. 462).

Eminent domain: private property cannot be taken for use of private persons: gold mining company: mining a public object.-Private property cannot be taken for the exclusive use of private persons, even though just compensation be provided therefor. It is competent for the legislature, in the exercise of the right of eminent domain, to grant to a gold mining company the right of way to construct its ditch or canal over the lands of others, for the purpose of bringing water to the mines, due provision being made for compensation therefor. The object, to wit: the mining of gold, is a matter in which the public is interested. Sup. Ct., Georgia, Nov. 21, 1877. Hand Gold Min. Co. v. Parker.

Former conviction: when not bar to subsequent prosecution.--A plea of former conviction before a justice of the peace for simple assault and battery is no defense to a prosecution for a higher grade of the offense; and where it appears that the former conviction was fraudulently brought about by the defendant himself, it is no bar to a real prosecution for the same offense. Ct. App., Texas, Nov., 1877. Warriner v. State (Texas L. J.).

Government lands: settler under homestead act no right to cut timber.-A person entering land under the homestead act of the United States has no right, prior to the issuance of a patent therefor, to cut the timber from such homestead for the purpose of selling or trafficking in the same. U. S. Dist. Ct., Minnesota, Oct. 31, 1877. United States v. McEntee (N. W. Rep.).

Infancy: right of mother to custody of female child up to sixteen years of age: jurisdiction.-Up to the age of sixteen a female child has no right to withdraw herself from the custody of her father, and in the

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