Of course the refusal to pay an exorbitant fee would in most instances cause a reduction of the demand to a reasonable figure, but it would bring the person refusing into hostility with the officer whose claim was not allowed. This condition of affairs would not only be unpleasant to the attorney who must make constant use of such officer, but liable to cause him injury and loss. The consequence is, that these over charges are almost uniformly paid without demur, the party knowing that it will be cheaper to pay than to dispute. The long toleration of this evil has made it bold, and it is already assuming proportions which forbid the profession to submit to its continuance. A few years ago an official would hesitatingly and evasively request somewhat more than the law allowed him, to day he openly and boldly demands two or three times his legitimate fee. And this for services requiring not much labor or intelligence, and involving hardly any risk. The public officer demanding or taking illegal fees is, to be sure, liable to a civil action for their recovery and to a criminal prosecution, yet how often is either liability enforced? The remedy in the matter is in the hands of the bar. If every illegal demand is, regardless of consequences, met with a prompt and determined refusal to submit to it, and an intimation that a repetition of such demand will be followed by certain unpleasant proceedings at law, there will soon be little reason to complain of the existence of official extortion.

CURRENT TOPICS.

The doctors are disagreeing to such an extent in Massachusetts that the advice and aid of the legal profession has been sought to settle their dispute. The Massachusetts Medical Society, which contains, among its members, adherents to the homoeopathic system, recently made an attempt to compel such adherents to renounce their faith in the doctrines of Hahneman, by commencing proceedings to oust them from its ranks. The society formed itself into a tribunal of last resort, and summoned every homœopathic doctor who was enrolled as a member, to appear at a time designated, and show cause why the proposed penalty should not be inflicted upon him. This invitation was not treated, by those prosecuted, as a call to repentance, but was met with by an attempt to convince the society that the followers of the new school had equal rights with those of the old, and could not, on account of these peculiar medical theories, be excluded from the social and business advantages of an organization designed to include every properly educated physician in the commonwealth. The men in authority, however, refused to consider, or even to hear, the arguments of the defense, and were about to pronounce the sentence of excommunication when an argument of the ad hominum nature was advanced in the shape of an injunction, restraining them from further proceedings. As

the matter is now before the courts, we shall have, before long, a judicial settlement as to the legal status of doctors who dissent from the ancient faith.

Rapid, cheap and certain communication between different parts of the country, while benefiting the mass of people, inflicts loss upon individuals. The great centers of trade increase their business at the expense of traders in the smaller places. The buyer who purchases at a great market selects from a larger variety, and usually pays a less price. But the local merchant would, ordinarily, retain the custom of those who cannot afford the trouble or expense of a visit to the larger and cheaper market. This, however, is rapidly being taken from him by a class of men, called drummers, who travel about the country, carrying with them only specimens or samples of the articles they desire to sell, and taking orders from those wanting to buy. Of course, local dealers have taken various means to suppress this mode of traffic, and have not neglected to appeal to the local lawmaking powers to assist them. The constitution of the United States has, however, proved a formidable obstacle in the way of effective legislation on the subject, but several States have enacted license laws, whereby the seller by sample is required to pay a tax so high that he cannot do business with profit. A case involving the constitutionality of a statute of this character, passed by the legislature of Maryland, is now under consideration in the United States supreme court, and we suppose it will be soon determined whether a State can, under the guise of a license tax, impose a prohibitory tariff upon the mercantile enterprise of other States.

Boards of supervisors in a number of the counties of New York State have lately indulged in the habit of increasing the salaries of county officials, giving an officer an additional five hundred or thousand dollars whenever they happened to be in a generous mood. In very many instances the board had no right whatever to allow this increase, and the resolution passed for that purpose was wholly void, and the payments made under it unauthorized. We hope that the recent decision made by the supreme court at the general term of the fourth department, in the case of Healy v. Dudley, will be heeded by these quasi legislatures. While we are in favor of the payment of liberal salaries to public officers, we do not approve of irregular or illegal measures to obtain them. The power of these county organizations is very wisely limited, and, whenever they overstep the limits, they should be at once checked by the courts.

There is a possibility that the standard of legal education is rising. At the last examination of candidates for admission to the bar, in the first department, thirty-one young men presented themselves, but only ten were admitted. Whether the class was

more than usually stupid or not, we are uninformed. The fact that so many were able to fail is, however, a cheering indication that a person may know so little that he cannot become a lawyer, even in New York. Under the unamended constitution of 1846, the courts had not only to contend with a strong popular feeling in favor of easy entrance to the bar, but were embarrassed by a provision of the fundamental law designed to open the practice of the law to every person having an ordinary general education. To-day there is a public sentiment in favor of well-educated lawyers, and the constitutional difficulty no longer exists. With these favoring circumstances, it is within the power of the courts to exclude, in the future, improper and incompetent applicants, and the result above mentioned gives us confidence that they will do so.

OBITER DICTA.

On dit, that thirty-five young Hindoos are studying law in London. But thirty-five cockneys could not be Hindoos'd to leave Bow Bells, you know, and return the compliment.

A country girl at a Maine tavern, during a term of court, thought it unsafe to put two lawyers together in the same room by night, they had quarreled so "in their vocation." Judge Dana used to compare two opposing lawyers to the blades of shears - they didn't cut each other, but only what came between them.

Within a month the supreme court of Indiana reversed the judgment of the court below in the case of Whitney, sent to the penitentiary for eleven years, on conviction for a scandalous crime. The appeal was taken on a motion for a new trial. The judgment grants Whitney a new trial, and remands him to Marion county jail.

The only interesting feature of all this is, that Mr. Whitney, at last accounts, had been dead and buried about six weeks!

A beginner in the abstruse art of making conundrums has succeeded in getting somebody to print the following for him:

Why is a lawyer like a sawyer? Because whichever way he turns, down must come the dust.

An eminent western lawyer once made the following rather remarkable speech to a jury, in a case against a railroad corporation, where he appeared for the defense. He was sure that, upon a point of law saved for the upper court, his clients would get a finding in their favor. He addressed the twelve somewhat as follows:

"Gentlemen of the jury: My clients have fought a good many cases before a jury, and always got whipped! They always expect it. We don't look for a verdict in our favor; and, in this case, we don't care whether you give us a verdict or not. We have got you now, gentlemen. Yes, gentlemen, we don't care a picayune whether you bring in your verdict for or against us; for we've got you! Do just as you please; it don't make any difference to us. I haven't any thing more to say."

And they gave him a verdict!

The story is revived of Rufus Choate, that he turned to his daughter, at the opera, one evening, and remarked: "Interpret to me the libretto, that I may not dilate with the wrong emotion!"

Orlando: Whom doth Time gallop withal? Rosamond: With a thief to the gallows: for though he go as softly as foot can fall, he thinks himself too soon there.

Orlando: Whom stays it still withal?

Rosamond: With lawyers in the vacation: for they sleep between term and term, and then they perceive not how Time moves.

As You Like It.

Ichabod Bartlett, of Portsmouth (a member of congress from New Hampshire), was one of the most adroit jury-lawyers we have ever had in this country. He was not only skillful and dexterous in the examination of witnesses, but a most convincing orator. Mr. Bartlett's practice, in the zenith of his fame, carried him into almost every county of the State. In his early career he antagonized the preeminent Jeremiah Mason, who was born twenty years before him, and whom Mr. Webster described as the ablest jurist in the United States. Mr. Mason could not cope with Mr. Bartlett in what captivated a jury, making often the worse appear the better side, which sort of thing the former would characterise as very fine talk. Putting one foot on a chair, and stretching his tremendous form across the bar, he would add: "But, gentlemen of the jury, what brother Bartlett has told you is not law."

Mr. Spencer's style of cross-examining Mrs. Wilson in the Pet Halstead murder case is as ingenious as it is brilliant. For instance, Botts and his victim are supposed to be grappling; the former with a pistol in his hand. As to this scene, "Charley" (as the newspaper reporter delights familiarly to call him) asks the wit

ness:

"You saw them grappling?"
Witness: "I did."

Charley: "You didn't see the pistol cocked?"
Witness: "I didn't say that I didn't."

Charley (with a keen glance at the jury): "If the pistol had been pointed at the ceiling and discharged, would the ball have penetrated Halstead's epiglottis, and lodged in the left lobe of the brain?"

Witness: "I can't say that it would."

Charley: "If it had been leveled at right angles to the front door plate, it would have entered the right auricular and come out behind the carotid artery, wouldn't it?"

Witness: "I don't know."

Charley (looking very bilious and working his jaws sardonically): "You don't know? Very well, then, I'll put the question differently. The prisoner might have taken aim for the diaphragm, and fired, might he

not?"

Witness (with a ghosty smile): "I suppose he might, if he knew where the diaphragm was."

And amid the audible misunderstanding on the part of the spectators of what was due to the dignity of the court, which this answer created, Charley wiped the perspiration from his brow and scowled darkly at the firmament of New Jersey through the windows of the

court room.

GENERAL TERM ABSTRACT.

NEW YORK COMMON PLEAS.

OPINIONS FILED NOVEMBER, 1871.

APPEAL.

1. Notice of appeal.-The notice of appeal in the case at bar states, in general terms, that the judgment appealed from is against both the law and the evidence, and should have been in favor of the defendants and against the plaintiffs. Held, that these statements are too vague, and fail to point out the error complained of. It does not appear in what particular the judgment in question is contrary to the law or the evidence. The notice of appeal required by section 353 of the code should point out clearly the error complained of, whether in the process pleadings, proceedings on the trial, or in the rendering of judgment. Judgment affirmed. Begleyu et al. v. Chase et al. Opinion by Larremore, J.

2. An application for the dismissal of the complaint will not be entertained in a court of review, when it appears by the record that no such relief was asked below. Ib.

ASSIGNMENTS.

The

On appeal from judyment in favor of plaintiff.— Before this action was commenced, the plaintiff had assigned to the Mechanics' and Traders' Bank all the moneys due or to become due under the contract in question, and there was no proof that the plaintiff was entitled to a re-assignment before the suit was brought, or before the defendant's answer was put in. objection was taken by the answer and the assignment was admitted by plaintiff on the trial. The plaintiff put in evidence a re-assignment made by the bank to him nearly four years after the answer was interposed, and this re-assignment recited that the assignment to the bank had been by way of collateral security merely, and that the debt or loan for which it was so assigned as security had been paid and discharged. Held, that the recital in the re-assignment did not bind the defendants and did not throw upon them the burden of proving that the debt or loan had not been paid when the answer was served or the action had been commenced. It did not establish that the assignment was intended as collateral merely, for it had been expressly admitted to be absolute on its face. In the case of an absolute assignment, the assignee must bring the action. And, even if the assignment were intended as collateral security, it passed the whole right to the money under the contract to the assignee until his debt was discharged, and the assignor had no claim upon the moneys when his action was brought. The defendant interposed the defense in good faith, because it had notice of the assignment, had recognized and paid over part of the moneys to the assignee, and was liable to the assignee. No other answer could have been safely interposed in order to protect the city from paying the money twice. The plaintiff, when he finally obtained the re-assignment, might have applied for leave to file supplemental complaint, and this might have been granted on terms relieving defendant from costs to that date, which would have been just and proper. Judgment reversed. Broderick v. The Mayor, etc., of New York. Opinion by J. F. Daly, J

ATTACHMENT. See Practice.

ATTORNEYS AT LAW. See Reference.

BAILMENT.

1. Lien of bailee; his duties.-The plaintiffs purchased from one Hubbell 301 bags of rice, of which 91 bags, the title to which is in question in this action, constituted a part, and were in possession of defendant. They were portion of a cargo of rice delivered to defendant by Hubbell for the purpose of being cleaned, and the 91 bags were subject to defendant's lien thereon for $1,553.50, a balance due for cleaning the whole quantity. The jury found upon a conflict of evidence the absence of any notice to plaintiffs that defendant claimed a lien upon the rice in question, until about two months after the purchase, except such as the law might infer from the fact that it was or had been in his possession, with knowledge of the broker and his clerk (who acted for plaintiffs), for the purposes of his business the cleaning of the rice. The judge below charged that the defendant was bound to make his lien known when the plaintiffs notified him that they had purchased; that when he had given notice of sale to any person he must give notice of his lien at the same time. The judge refused to charge that defendant's silence, when he was notified of plaintiffs' purchase, did not estop him from asserting his lien. Judgment in favor of plaintiffs. On appeal, held, that the charges recited above and the refusal to charge were erroneous. The defendant being in possession of the rice in question as bailee in the course of his business of cleaning it, as was known to plaintiffs or their agents, they were bound to regard any rights of property, lien or special interest he had in it, when attempting to deal with reference to it. Possession of property constitutes notice to every one of the title of the possessor, and some very special circumstances must exist, in no way disclosed in this case, under or by virtue of which he can, without his consent, be deprived of his interest in it. His presence at the sale of the property to another, where he neither does nor says any thing to mislead the purchaser as to the character of his title or possession, in no way prejudices his rights. Judgment reversed. Graham et al. v. Fitzgerald. Opinion by Robinson, J.

2. Estoppels, how created.-Estoppels are created between parties to a transaction from their failure to speak when good faith requires they should do so, or, by giving misinformation as to matters which, from the nature of the transaction, tended to influence the conduct of the party with whom they are dealing, but third parties, in some way connected with the subject of such dealings, cannot be affected in their rights therein, unless apprised of the character of the intended action, of the materiality of the information sought, and unless the party in question designedly gives such misinformation as is acted upon to the prejudice of the inquirer. Misinformation which a person gives as to his rights, to a mere casual inquiry, will not protect, though subsequently acted upon in reliance upon its correctness; nor if given to a party to a bargain after it has been concluded. Turner v. Coffin, 12 Allen, 401; Andrews v. Lyon, 11 id. 349; Merchants and Traders' Bank v. Hazzard, 30 N. Y. 226; Plumb v. Cattaraugus Bank, id. 392; Yoaug v. Bushnell, 8 Rob. 1; Walrath v. Redfield, 18 N. Y. 457, cases cited. Ib. CASES REVIEWED. See Contracts. CONSIDERATION. See Contracts.

CONTRACTS.

1. Waiver of tort: affirmance of contracts. -On December 8, 1869, the plaintiff loaned the firm of Gray &

Co. the sum of $10,000, by a check for that amount, which was deposited and placed to the credit of said Gray & Co. in the Bank of the Commonwealth. As collateral security plaintiff received a $1,000 United States bond, and what purported to be a $10,000 bond of the State of New York. On December 10th plaintiff made a further loan to said firm of $25,000, by a check for that amount, which was deposited and placed to their credit, as aforesaid. The plaintiff also received, as collateral security for this last-mentioned loan, a United States bond for $15,000, and what purported to be a $10,000 bond of the State of New York. Both of the bonds of the State of New York proved to be forgeries. The checks of plaintiff were mingled with the general funds belonging to the firm of Gray & Co. in said bank, from which payments were made from time to time upon numerous drafts drawn thereon. On December 11, 1869, Gray & Co. absconded, and at that time there was a balance to their credit in said bank of $18,253.23. The plaintiff, then cognizant of the fact that said State bonds were forgeries, commenced a suit upon contract against said firm of Gray & Co., asking judgment for $35,000, the amount of said loans, and interest. On the same day he procured an attachment against the property of said firm, and the attachment was served on said bank. On December 16th, with full knowledge of the fraud, plaintiff sold the valid securities, and credited the proceeds of such sale upon the original indebtedness of Gray and Co. to him. On January 5, 1870, a petition for the involuntary bankruptcy of Gray & Co. was filed, and an injunction was issued in pursuance of the bankrupt act. Thereafter the defendant Ingraham was appointed assignee in bankruptcy of Gray & Co. In April, 1870, on consent of the plaintiff's attorneys, the attachment on the bank was dissolved, and, thereafter, this action was brought to recover the balance due plaintiff from said firm out of the moneys held by said bank to their credit. The bank resisted such payment on the ground that the amount thus held was claimed by parties other than the plaintiff. The court below decided that the fund deposited with said bank belonged to the defendant, as assignee in bankruptcy, and from the judgment entered thereon this appeal. Held, that it is a well-settled rule of law, that an innocent party to a fraudulent contract may rescind it and sue in tort for the recovery of the identical property with which he has parted possession, or may affirm the contract and waive the tort. He cannot have both remedies, because they are inconsistent with each other. He must make his election, and, having made it, must be held to it. He cannot be allowed, even though mistaken in his remedy, to change it, especially when the rights of third parties have intervened. The plaintiff exercised his election in bringing his action on the contract, and the subsequent discontinuance of the proceedings, when taken, could not change the legal effect of his action. Having in the first instance treated the fund as the property of the debtor, he cannot now escape the consequences of his own deliberate act, nor prejudice the rights of other creditors to the fund. It is not disputed that the assignee in bankruptcy is entitled to the moneys now held by the bank, if they belonged to Gray & Co., and we think the finding of the court below upon this point was correct. Judgment affirmed. Benedict v. The National Bank of the Commonwealth. et al. Opinion by Larremore, J.

2. Review of cases.- Graves v. Dudley, 20 N. Y. 76; Gordon v. Hostetter, 37 id. 99; Grand Trunk Railway

v. Edwards, 56 Barb. 408; Salisbury v. McCoon, 3 Coms. 379, and Seymour v. Wyckoff, 10 N. Y. 213, reviewed. The decisions in the cases named rest mainly upon the fact that the property sought to be recovered could be identified. They were cases also in which the party injured sued the wrong-doer, and when it was clear that no absolute surrender of ownership was intended. But money paid into bank to the credit of a party passes to the bank, and the relation of debtor and creditor is simply created. Commercial Bank of Albany v. Hughes, 17 Wend. 94, cited. Ib.

3. Consideration: contracts in restraint of trade.Action brought upon a promissory note of $500, made by defendant Homan. The answer alleged that the note in question and another of like amount were given by defendant Homan, upon the purchase by him of the interest of the plaintiff in the copartnership formerly existing between them; that the plaintiff, as part consideration of the notes, agreed that he would not engage in the same business again in the city of New York, and the breach of such agreement that the notes were obtained by fraud. The first note was paid before this suit was brought. The defendant testified that "plaintiff told me if I would buy his share in the cabinet business he (plaintiff) would cease being in that trade." An appeal from judgment in favor of defendants; also from order denying plaintiff's motion for a new trial. Held, that the evidence produced shows that Homan, independent of the alleged exclusive right to carry on the business of the firm, received an equivalent for the amount of the notes given in payment. There is no such evidence of fraud as would justify the finding of the jury. And the agreement sworn to, even if regarded as a part consideration of the sale, is void as a defense, being unlimited as to time and place. Judgment reversed and new trial ordered. Maier v. Homan et al. Opinion by Larremore, J.

4. New trial: when exceptions are not taken on trial.The verdict in this case is against the evidence, and although the jury have passed upon the question of fraud, it is the duty of the court to grant a new trial. Though no sufficient exception was taken at the trial, still, where (as in this case) there is a well-founded reason for believing that justice has not been done, and that the verdict was rendered on incompetent testimony, it is just and proper for the court to interpose its authority and grant relief. Ib.

5. The learned judge, in dissent, says: New trials will be granted where the court errs in submitting the case to the jury, upon a theory of law which is not sustained by any facts in evidence, even if the defeated party has taken no exception; but where there are several theories to which the facts are applicable, and the trial is conducted upon one of them, and no objection is made to it, a new trial should not be granted. Ib. Dissenting opinion by J. F. Daly, J. DISTRICT COURTS OF NEW YORK CITY. See Practice. ESTOPPEL. See Bailment.

EXECUTORS AND ADMINISTRATORS.

Service of notice of rejection of claims: short statute of limitations.-The defendant was appointed administratrix of the estate of James Farley, and, pursuant to an order of the surrogate, caused to be published, according to statute, a notice requiring all persons having claims against said estate to present the same at the office of Callagham & McGurk, on or before March 20, 1867. The plaintiff employed one Robinson, an attorney at law, to prepare and present her

claim, and it was duly presented on March 16, 1867. On the 22d of March, Callagham & McGurk served at the office of Robinson a notice, signed by themselves as attorneys for the administratrix, which notice was in these words: "To Susannah Van Sann: The claims presented by you against the estate of James Farley, deceased, on the 16th day of March, 1867, amounting in all to the sum of $25,184.26, are disputed and rejected by the administratrix of the said estate." Prior to the commencement of this action this notice never came to the knowledge of the plaintiff. In February, 1869, plaintiff offered to refer her claim. In June, 1869, this action was commenced to recover a portion of the items embraced in the claim presented to the defendant. The answer of the defendant was, that the causes of action mentioned in the complaint were barred by the short statute of limitation, the action not having been brought within six months after the rejection of the claims. On appeal from judgment in favor of plaintiff, held, that the statute does not mean by rejection merely a mental motion, but the action of the mind must be followed by some outward act by which the owner of the claim may be apprised of the result arrived at. It has been repeatedly held that this statute, unlike the other statute of limitations, is not a statute of repose, but is highly penal in its character, and should be strictly construed. The party invoking the aid of the statute must show a strict compliance with all its provisions. There is no evidence that Mr. Robinson was the attorney of the plaintiff for any other purpose than the legal presentation of the claim. If the defendant chose to serve the notice of rejection on him, it was her duty to show that plaintiff had authorized him to act for her in the receipt of such a notice. This was not shown, and nothing can be implied to enable defendant to avail herself of the statute. It appearing that, prior to the commencement of this action, the plaintiff never was apprised of the existence of such a notice of rejection, the service upon Mr. Robinson was not sufficient to set the statute in motion and debar the plaintiff from commencing this action after the lapse of six months from the time of the service of such notice. Judgment affirmed. Van Sann v. Farley, administratrix, etc. Opinion by Van Brunt, J.

NEGLIGENCE.

Liability of the owner of a building. — An owner of a building is responsible for his own negligence either in constructing or upholding the freehold, but for the negligent use of it by others he cannot be made liable.

He has met the requirements of the law, when each and every part of the building is properly and securely adapted to its particular use. In the case at bar, it not having been shown that the chimney in question was unfit for the purpose for which it was intended, the improper and unauthorized use of it for any other purpose, whereby a third party was injured, cannot create a liability on the part of the owner. Scullin v. Dolan. Opinion by Larremore, J.

NEW TRIAL. See Contracts.

PLEADINGS. See Assignment and Reference. PRACTICE, DISTRICT COURTS, UNDERTAKING ON ATTACHMENT.

Action by attachment in the district court of the seventh judicial district of the city of New York against the appellant.

To procure such attachment the respondent gave an undertaking in the form usually employed in the district courts of the city of New York. Judgment having been rendered against the defendant in such action she appealed, claiming that the district court had not acquired jurisdiction to issue the attachment by which the suit is commenced, because the plaintiff had not given a bond in the form required by the revised statutes to be given, in order to procure attachment to be issued by a justice of the peace in attachment suits for less than $100. R. S., part 3, ch. 2, tit. 4, art. 2, § 29.

This provision was in full force when the district court act of 1857 was passed. By the latter act (section 20), it is provided that "all laws in relation to the issuing of attachments by justice of peace when the debt or damages claimed do not exceed $250, and of the service thereof, shall apply to these courts, except when the same may be inconsistent with this act." Laws of 1857, ch. 344, § 20.

The next section (21), however, declares, that "before a warrant or attachment shall issue, the party applying must prove to the satisfaction of the justice, by the affidavit of himself or some other person, the facts on which the application is founded, and the amount of his debt or claim over all payments and set-offs. The plaintiff must also execute and deliver to the clerk of the court a written undertaking approved by the justice, with such approval indorsed thereon, with or without sureties, to the effect that, if the defendant recover judgment, the plaintiff will pay to him all costs and extra costs that may be awarded to the defendaut, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be double the amount claimed."

It will be observed that the undertaking provided for in section 21 is not applicable to cases of attachment, but only to arrests.

The court says: My view would be that held by Judge Robinson on the first argument and decision of this appeal, viz.: That the provisions of section 29, article 2, title 4, chapter 2, article 3, R. S., are reenacted by the 20th section of chapter 344, Laws of 1857, and that the giving of the bond, heretofore described, is necessary to give the justices of the district courts of this city jurisdiction to issue attachments for commencing actions.

The re-enactments of section 20 are not affected by the provisions of section 81 of the same act. This section shows a general intent to repeal all statutes, etc., heretofore in force, whether consistent with such act or not, but section 20 shows a particular intent to re-enact the laws relating to attachments, and according to a familiar rule of the construction of statutes, the particular intent must be deemed to be an exception to the general intent and must stand.

But we are met at once with the serious objection to a decision reversing the judgment appealed from, that is, that ever since the passage of the act (chap. 344 of 1857) the invariable rule and practice of the justices of the district courts in this city and the practitioners in those courts has been to construe that act as repealing by inconsistency the former provisions of law requiring a bond on attachment, and as substituting therefor the undertaking in the form adopted by the plaintiff in this action. A decision to the contrary would now be productive of endless litigation, suits for trespass and actions for damages against the justices of the district courts for proceeding without jurisdiction.