yet the holder could not compel payment till after the CONSTITUTIONAL LAW -JUDGMENT OF COURT OF - SURANCE. — (1) In an action upon a judgment rendered DEFINITION Gordon v. Jennings, L. R., 9 Q. B. D. 45; Dean v. De Wolf, 16 Hun, 186; affirmed, 82 N. Y. 626. Blackstone speaks of stewards, factors and bailiffs as perhaps constituting a class of servants. But this doubtingly, "because they serve in a superior ministerial capacity," and in view of the declarations already made by this court as to the object of the statute (Coffin v. Reynolds, 37 N. Y. 640; Gurney v. Atlantic & G. W. R. Co., 58 id. 367; Aiken v. Wassan, 24 id. 482; Stryker v. Cassidy, 76 id. 53) it may be added that as such individuals occupy positions and are usually of such capacity as enables them to look out for themselves, they are not within the privilege of the statute. According to the rule that when two or more words of analogous meaning are coupled together they are understood to be used in their cognate sense, express the same relations and give color and expression to each other, the word "servant" though general must be limited by the more specific ones, "laborer" and "apprentice," with which it is associated, and be held to comprehend only persons performing the same kind of service that is due from the others. A general manager is not ejusdem generis with an apprentice or laborer. See Sandiman v. Breach, 7 B. & C. 96; Rex v. Cleworth, 4 B. & S. 927; Kitchen v. Shaw, 6 A. & E. 729; Barnard v. Pennick, 7 B. & C. 536; Williams v. Golding, L. R., 1 C. P. 69; Smith v. People, 47 N. Y. 337. The case Hovey v. Ten Brock, 3 Rob. 316, limited. Judgment modified. Wakefield v. Fargo. Opinion by Danforth, J. [Decided Oct. 17, 1882.] IN FORECLOSURE ACTION. A decree in an action for the foreclosure of deeds of trust in the nature of mortgages did not order a sale of the property. It overruled a defense, declared the complainant the holder and owner of the debt secured, and ordered a reference to an auditor to ascertain the amount due and the liens and taxes. The court found that the amount due was in excess of the value of the property, but this was only as the foundation of an order appointing a receiver. Held, that the decree was not final so as to authorize an appeal to this court even though there was an order for the delivery of the property to the re17 SERVANT ceiver. The rule is well settled that a decree to be BOOKKEEPER AND GENERAL MANAGER NOT, UNDER CORPORATION ACT.final, within the meaning of that term as used in the Under the provision of § 18 of the act of 1848, author- acts of Congress giving this court jurisdiction on apizing the promotion of corporations for manufacturing, peal, must terminate the litigation of the parties on mining, mechanical, etc., purposes, which makes the the merits of the case, so that if there should be an stockholders "liable for all debts that may be due and affirmance here, the court below would have nothing owing to their laborers, servants and apprentices for to do but to execute the decree it had already rendered. services performed for such corporation," a person This subject was considered at the present term in described as the bookkeeper and general manager of Bostwick v. Brinkerhoff, where a large number of the company, and who kept an account of all the receipts cases are cited. It has also been many times decided and disbursments of the company, and in the absence that a decree of sale in a foreclosure suit, which settles of the superintendent had the charge and control of all the rights of the parties and leaves nothing to be its business, and was employed at a yearly salary of done but to make the sale and pay out the proceeds, is $1,200, is not a servant or a laborer. The clause in a final decree for the purposes of an appeal. Ray v. question creates a privileged class into which none but Law, 3 Cranch, 179; Whiting v. Bank, 13 Pet. 15; Bronthe humblest employees are admitted. The services son v. Railroad Co., 2 Bl. 531; Green v. Fisk, 103 U. referred to are menial or manual services. He who S. 520. But in Railroad Co. v. Swasey, 23 Wall. 409, performs them must be of a class whose members it was held that "to justify such a sale, without conusually look to the reward of a day's labor or service sent, the amount due upon the debt must be deterfor immediate or present support from whom the mined. *** Until this is done the rights of the parcompany do not expect credit and to whom its future ties are not all settled. Final process for the collection ability to pay is of no consequence, one who is respon- of money cannot issue until the amount to be paid or sible for no independent action but who does a day's collected by the process, if not paid, has been adwork or a stated job under the direction of a superior. | judged." In this the court but followed the principle acted on in Barnard v. Gibson, 7 How. 656; Humiston v. Stainthorp, 2 Wall. 106; Crawford v. Points, 13 How. 11, and many other cases. The order for the delivery of the property is only in aid of the foreclosure proceedings, and to subject the income, pending the suit,to the payment of any sum that may in the end be found to be due. If any thing remains either of the income or of the proceeds of the sale after the mortgage or trust debts are satisfied, it will go to the appellant, notwithstanding what has been decreed. There is no order as in Forgay v. Conrad, 6 How. 201; Thompson v. Dean, 7 Wall. 346, and other cases of a like character, adjudging the property to belong absolutely to the appellee, and ordering immediate delivery of possession. In Forgay v. Conrad, supra, which is a leading case on this question, it was expressly said by Taney, C. J. (p. 204), that the rule did not extend to cases where property was directed to be delivered to a receiver. The reason is that the possession of the receiver is that of the court, and he holds, pending the suit, for the benefit of whomsoever it shall in the end be found to concern. Neither the title nor the rights of the parties are changed by his possession. He acts as the representative of the court in keeping the property so that it may be subjected to any decree that shall finally be rendered against it. Appeal from District of Columbia Sup. Ct., dismissed. Grant v. Phonix Mutual Life Insurance Co. Opinion by Waite, C. J. [Decided Dec. 18, 1882.] CONTRACT-ILLEGAL AGREEMENT NOT ENFORCEABLE. On the 12th day of April, 1865, Walker, a citizen and resident of Memphis, purchased, in Mobile, from O'Grady, a citizen and resident of that city - both cities being then in the occupancy of the national forces, a lot of cotton, which at the time was in the military lines of the insurgent forces in the States of Alabama and Mississippi, the inhabitants whereof had been declared to be in insurrection. Between June 30th and December 1st, 1865, a portion of the cotton,-while in the hands of the planters from whom it was originally purchased by the Confederate government, and from the agent of which O'Grady had purchased, in Mobile, on the 5th day of April, 1865,- was seized by treasury agents of the United States, sold, and the proceeds paid into the treasury. Held, that the purchase from O'Grady by Walker was in violation of law, and was not one out of which could arise, in favor of the latter, any right, as against the United States, which could be enforced in the courts of the Union. Judgment of Court of Claims affirmed. Walker's Executors v. United States. Opinion by Harlan, J. [Decided Dec. 4, 1882.] CONTRADICT WRITING EVIDENCE- PAROL ΤΟ UNILATERAL CONTRACT.—(1) In a contract in writing where there is no ambiguity in the way payment is to be made, it is not competent to show by parol that payment was to be made in some other way than that specified in the written instrument. Sprigg v. Bank of Mt. Pleasant, 14 Pet. 201; Specht v. Howard, 16 Wall. 564; Forsythe v. Kimball, 91 U. S. 291; Brown v. Spofford, 95 id. 482. (2) In this case R. had by contract an option to become equally interested with H. in lands purchased by the latter, by paying one-half of the purchase-money within two years from date of such contract. R. made no payment within the time limited. Held, that H. was no longer bound by the contract. In suits upon unilateral contracts, it is only where the defendant has had the benefit of the consideration for which he bargained that he can be held bound. Jones v. Robertson, 17 L. J. (Exch.) 36; Mills v. Blackhall, 11 Q.B. 358; Morton v. Burr, 7 Ad. & El. 23; Kennaway v. Treleavan, 5 M. & W. 501. Decree of U. S. Circ. Ct., E. D. Mich., affirmed. Opinion by Woods, J. [Decided Nov. 27, 1882.] LACHES Richardson v. Hardwick. WHAT AMOUNTS TO, ESTOPPING ACTION DEFENSE OF, MAY BE RAISED BY DEMURRER.- (1) 8. held land under a perpetual lease from V. which provided for rent and re-entry and possession in case of non-payment, until payment should be made. S. failed to pay rent and V. re-entered. Thereafter S. and V. died, after which the land was assigned to an heir of V. from whom defendants derived title. The administrator of S,. forty-five years after the re-entry and thirty years after the assignment in partition, by bill in equity offered to pay the rents reserved in the lease, asked for a decree permitting a redemption of the land and for an account of the rents and profits, etc. Held, that the complainant had been guilty of such laches as to deprive him of the right to relief. It has been a recognized doctrine of courts in equity, from the very beginning of their jurisdiction, to withhold relief from those who have delayed for an unreasonable length of time in asserting their claims. Elmendorf v. Taylor, 10 Wheat. 168; Piatt v. Vattier, 9 Pet. 416, Maxwell v. Kennedy, 8 How. 222; Badger v. Badger, 2 Wall. 94; Cholmondelay v. Clinton, 2 Jac. & Walk. 141; 2 Story's Eq. Jur., § 1520. In Wagner v. Bird, 7 How. 259, it was said that long acquiescence and faches by parties out of possession are productive of much hardship and injustice to others, and are not to be excused except by showing some actual hindrance or impediment, caused by the fraud or concealment of the party in possession. The case must be one which appeals to the conscience of the chancellor. (2) Held also that a defense grounded upon the staleness of the claim asserted, or upon the gross laches of the party asserting it, may be made by demurrer, not necessarily by plea or answer. A different rule has been announced by some authors, and in some adjudged cases; generally however upon the authority of the case of Earl of Deloraine v. Browne, 3 Brown Ch. 633. But in Hovenden v. Lord Annesley, 2 Sch. & Lef. 637, a different rule was laid down which has been followed by this court. See Rhode Island v. Massachusetts, 15 Pet. 272; McKnight v. Taylor, 1 How. 168; Bowman v. Wathen, id. 189. Decree of District of Columbia Sup. Ct., affirmed. Landsdale v. Smith. Opinion by Harlan, J. [Decided Dec. 18, 1882.] UNITED STATES CIRCUIT COURT ABSTRACT.* EQUITABLE DEFENSE ACTION FOR MONEY HAD AND RECEIVED - INSURANCE MONEY.- In an action for money had and received, the defendant may avail himself of any defense showing that equitably he is entitled to retain the money as against the plaintiff. Where the owner of property caused it to be insured, and made the policies payable to a creditor, who subsequently brought suit against the owner for the debt secured by the policies, obtained judgment, levied an execution upon the property insured, and bought it in upon the sheriff's sale, and shortly after the sale the property was burned, and the creditor received the proceeds of the insurance, it was held, that while the purchase of the property was technically an extinguishment of the debt secured by the policies, yet the creditor was equitably entitled to retain the proceeds of the insurance, but must credit the same upon the amount of his bid, in case the debtor saw fit to redeem. *Appearing in 13 Federal Reporter. See Eddy v. Smith, 13 Wend. 488; Moses v. Macferlin, 2 Burr. 1010; Columbia Ins. Co. v. Lawrence, 10 Pet. 507: Carpenter v. Provident Wash. Ins. Co., 16 id. 495; McDonald v. Administrator of Black, 20 Ohio, 185; Plympton v. Insurance Co., 43 Vt. 497; Adams v. Parmeter, 5 Cow. 280; Tudor v. Taylor, 26 Vt. 444; Warner v. Helme, 1 Gilm. 220. U. S. Circ. Ct., E. D. Mich., Oct. 16, 1882. Gleason v. First National Bank of Lapeer. Opinion by Brown, D. J. JURISDICTION -WHEN CORPORATION DOING BUSINESS IN STATE "FOUND THERE -DOMICIL.-The Maryland Legislature having required every foreign insurance company doing business in that State to execute a power of attorney appointing an agent upon whom process might be served, to have the same effect as if served on the company, and by the act defining "process "to be any writ issued upon any action by any court, held, that a foreign insurance company, having executed such a power of attorney, has agreed to be "found" in the State as fully as if it were a domestic corporation; and that service of process of the United States Circuit Court on such an agent is valid, notwithstanding the suit may be upon a cause of action of which the State courts could not take jurisdiction, because of an act of the Legislature restricting their jurisdiction, in suits against foreign corporations, to cases where the plaintiff is a citizen or the cause of action has arisen within the State. See Lafayette Ins. Co. v. French, 18 How. 407; Ex parte Schollenberger, 96 U. S. 360; Myer v. Insurance Co., 40 Md. 601; Cromwell v. Insurance Co., 49 id. 382; Merchants' Manu. Co. v. Grand Trunk R. Co., 13 Fed. Rep. 358; Mohr v. Insurance Co., 12 id. 474; Brownell v. Troy & Boston R. Co.,3 id. 761; Moch v. Virginia Fire Ins. Co., 10 id. 700; Grover v. American Ex. Co., 11 id. 386. U. S. Circ. Ct., Maryland, Oct. 13, 1882. Carstairs v. Mechanics & Traders' Insurance Co. Opinion by Morris, D. J. JURISDICTION CORPORATION— DOMICIL. A foreign corporation, that by the laws of a State within which it comes on business can sue and be sued, is not a non-resident in the sense that would prevent it from setting up the statute of limitations as a defense in an action against it; and section 2533 of the Code of Iowa, that provides that "the time during which a defendant is a non-resident of the State shall not be included in computing the period of limitation," has no reference to such a case. See Bank of Augusta v. Earle, 13 Pet. 588; Ohio & Miss. R. Co. v. Wheeler, 1 Black. 295; Runyan v. Coster's Lessee, 14 Pet. 129; Louisville, C. & C. R. Co. v. Letson, 2 How. 497; Covington Drawbridge Co. v. Shepherd, 20 id. 227, 233; Paul v. Virginia, 8 Wall. 168; Pennsylvania Co. v. Sloan, 1 Bradw. 364; Bristol v. Chicago & Alt. R. Co., 15 Ill. 436; Penley v. Waterhouse, 1 Iowa, 498; Savage v. Scott, 45 id. 132. U. S. Circ. Ct., N. D. Iowa, April, 1882. McCabe v. Illinois Central Railroad Co. Opinion by Love, D. J. MICHIGAN SUPREME COURT ABSTRACT. OCTOBER 31, 1882. DAMAGES IN ACTION FOR FRAUD IN PROCURING COMPROMISE OF DEBT.- A debtor falsely understated the amount of his assets to his creditor, and the latter on the faith of such statement compromised the debt at a large discount. In an action by the creditor against the debtor for damages for such fraudulent statement, held, that plaintiff was entitled to recover only the difference between the amount he did receive and what he would have received pro rata for his debt from a division of the actual amount of the debtor's estate at the time the fraud was practiced. In Jewett v. Petit, 4 Mich. 514, it was held that in a case like the present, the creditor on discovery of the fraud could not retain the sum paid and sue in assumpsit for the balance, but that he might retain the payment and maintain an action on the case for damages sustained by the fraud. Where the creditor brings an action to recover damages for the fraud, retaining what he has received, he thereby affirms the compromise, and the damages which he is entitled to recover is the amount he would have received had no fraudulent concealment been made. This is the extent of the fraud practiced upon him. Field. Dam., § 706; Page v. Wells, 37 Mich. 421; Warren v. Cole, 15 id. 274; Bowman v. Parker, 40 Vt. 413; Foster v. Kennedy's Adm'r, 38 Ala. 259; Moberly v. Alexander, 19 Iowa, 164; Reynolds v. Cox, 11 Ind. 266. The plaintiff in this case therefore if entitled to recover, could not claim the unpaid balance of the indebtedness, but his pro rata share with interest from the time of the compromise. Walsh v. Sisson. Opinion by Marston, J. ESTOPPEL-IN PAIS.- Estoppels in pais are called equitable estoppels, not because their recognition is peculiar to equitable tribunals, but because they arise upon facts which render their application in the protection of rights equitable and just. Courts of equity recognize them in cases of equitable cognizance; but the courts of common law just as readily and freely, (Sebright v. Moore, 33 Mich. 92; Maxwell v. Bay City Bridge Co. 41 id. 456; S. C., 2 N. W. Rep. 63; Kid v. Mitchell, 1 Nev. & Macn. 334; Dazell v. Odell, 3 Hill, 215; Horn v.Cole, 51 N. H. 287); and it is never necessary to go into equity for the mere purpose of obtaining the benefit of an equitable estoppel when the case is not otherwise of equitable jurisdiction. Barnard v. German American Seminary. Opinion by Cooley, J. PROBATE LAW -PROBATE COURT MAY COMPEL ADMINISTRATOR OF EXECUTOR TO DISCLOSE.- A probate court may compel an administrator of a deceased executor to make disclosures of books and other information relating to the estate, which was in charge of such executor in favor of the successor as adminisstrator de bonis non of such executor. See Brotherton v. Hillin, 2 Cas. Temp. Lee. 131. The representative of a deceased executor, even under the English rule of succession, was bound to give information to the parties in interest, and the probate courts could compel it in any proper case. Colt v. Lesnier, 9 Cow. 320; Comyn, Dig, "Administrator, B.; " Farwell v. Jacobs, 4 Mass. 634; Holland v. Prior, 1 Mylne & K. 237; Gale v. Lutrell, 2 Addams, 234; Ritchie v. Rees, 1 id. 144; Wms. Ex'rs, 836; Redfield, Surr. 359. Perrin v. Probate Judge of Calhoun. Opinion by Campbell, J. CRIMINAL LAW. HOMICIDE-SELF-DEFENSE- ADULTERER RESISTING ATTACK BY INJURED HUSBAND.- Defendant was caught in the act of adultery with the wife of deceased by deceased who made a murderous attack on defendant. In resisting this attack the latter killed deceased. Held, that defendant was guilty of manslaughter. The right of self-defense, though inalienable, is and should to some extent, be subordinated to rules of law regulating its proper exercise, and so the law has wisely provided. It may be divided into two general classes, to-wit, perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If however he was in the wrong if he was himself violating, or in the act of violating the law, and on account of his own wrong he was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated an imperfect right of selfdefense. Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his own safety that he should take life or do serious bodily harm, then indeed the law wisely imputes to him the consequences of his own wrong and its consequences to the extent that it may and should be considered in determining the grade of offense which but for such acts would never have been occasioned. "The rule is commonly stated in American cases thus: If the individual assaulted, being himself without fault, reasonably apprehends death or serious bodily harm to himself unless he kills the assailant, the killing is justifiable." 1 Bish. Cr. L., § 865. But a person cannot avail himself of a necessity which he has knowingly and willfully brought upon himself. State v. Neely, 20 Iowa, 108; Adams v. People, 47 IIL 376; State v. Starr, 30 Mo. 270. That is, it will not afford him a justification in law. See 2 Cooley Blackst. 180. How far and to what extent he will be excused or excusable in law, must depend upon the nature and [character of the act he was committing, and which produced the necessity that he should defend himself. Texas Ct. of Appeals, March 11, 1882. Reed v. State of Texas. Opinion by White, P. J. LARCENY CROPPER ON SHARES CONVERTING CROP, NOT GUILTY OF.-By the statute of North Carolina a lessee of land to work on shares, or cropper, has actual possession of the crop until the division is made. Held, that an indictment for larceny will not lie against a lessee or cropper for secretly appropriating the crop to his own use, even if done with a felonious intent. Where in such case the defendant cropper was hauling seed cotton to the lessor's gin, there was proof that he threw a sack thereof off the wagon by the road-side, and returned to the spot at night and carried the cotton away, which was afterward found near defendant's house. Held, that the act of throwing it off the wagon was not an abandonment of his own possession, and the subsequent taking no trespass upon the possession of the lessor. Held further, that if the cotton had been delivered to the lessor at the gin, giving him actual possession thereof, and the defendant had then secretly taken and carried it away, he would have been guilty of larceny. Larceny is the felonious taking and carrying away the personal goods of another, with the intention of appropriating the same to one's own use, or causa lucri, without the consent of the owner. Το constitute the offense, there must be a taking which is as essential an ingredient of the crime as the asportation. "Taking is a material part of larceny, but it may be presumed from the possession of the property." "When there is no trespass in taking the goods, there can be no felony in carrying them away." 2 Whart. Crim. Law, § 1802. In England it was long doubted whether, as a lodger had a special property in the goods let with the lodgings, the stealing of them was larceny, and it was at length held by a majority of the judges that it was not. This decision was made in the case of Rex v. Moore, Show. 50, and the ground of the decision was that the lodger and not the landlord had the possession, during the time for which the lodgings were let, and therefore the landlord could not maintain trespass for taking the goods. "Regularly," says Lord Hale, "a man cannot commit felony of goods whenever he hath property. If A. and B. be joint tenants or tenants in common of an horse, and A. takes the horse, possibly animo furandi, yet this is not felony, because one tenant in common, taking the whole, doth but what by the law he may do." The reason for this is, that there is in fact no taking, for he is already in possession; it is merely the subject of an action of account. Arch. C. L., p. 181. The same doctrine applies to bailees at common law. North Carolina Supreme Ct., Feb. Term, 1882. State of North Carolina v. Copeland. Opinion by Ashe, J. (86 N. C. 691.) PLEADING -INDICTMENT NOT INDORSED "TRUE BILL."- An indictment will not be quashed on the ground of its not being indorsed as a "true bill," or signed by the foreman of the grand jury. In Rookwood's case, 13 How. St. Tr. 139, Holt, C. J., placed the subject in a very reasonable light. He says: Au indictment is not an indictment till it be found: it is only a writing prepared for the case of the jury and for expedition; it is nothing till it is found, for the jury make it an indictment by finding it; they may alter what they please, or refuse it absolutely. And if the jury, upon examining the witnesses, would only present a matter of fact with time and place, the court might cause it to be drawn up into form, without carrying it to the jury. Again, there needs no billa vera, for that is only the jury's owning that which the court has prepared for them." The American authorities are in conflict on the subject. See 1 Bish. Cr. Pro., § 141. New Jersey Sup. Ct., June Term, 1882. State of New Jersey v. McGrath. Opinion by Beasley, C. J. (1 Vroom, 227.) - CONFLICT OF LAW FORGERY CONSUMMATION OF CRIME IN ONE STATE AND COMPLETION IN ANOTHER. - Where a person forges and utters at Kansas City, Missouri, a time-check upon a railroad company having its treasurer and treasury within this State, and such check is paid off by the agent of the company at Kansas City, who has authority to pay the valid obligations of the company, upon the supposition that such check was a true and valid instrument, the forgery is wholly consummated in Missouri, although afterward the agent sends the check to the treasurer of the company at Topeka, Kansas, and is given credit therefor on his accounts as so much cash. Where a person fraudulently and by false representations obtains money from a bank in the State of Missouri, upon a false and spurious time-certificate, purporting to have issued by a roadmaster of a railroad company having its treasurer and treasury within this State, and thereafter the bank sends the certificate through its correspondent bank at Topeka for presentation to and payment by the company, and the treasurer of the company pays the same within this State, held, that the offense is completed in the State where the party knowingly passes and receives the money on the false and spurious certificate. In such case the bank is not the agent in sending the certificate to this State for payment, since the party passing the same has gained his full object in Missouri, and prior to the transmission of the certificate. The subsequent payment thereof in Kansas to the holder would not be for the use and benefit of the guilty party originally passing the same. See Rex v. Lara, 6 Term R. 565; Regina v. Garrett, 22 Eng. L. & Eq. 607; People v. Adams, 3 Den. 190; Commonwealth v. Harvey, 8 Am. Jur. 69; United States v. Davies, 4 Sumn. 485. Kansas Sup. Ct., Jan. Term, 1882. Matter of Carr. Opinion by Horton, C. J. (28 Kans. 1.) FEDERAL CRIME REFUSAL TO OBEY SUBPOENAARREST IN ANOTHER DISTRICT.- (1) A refusal to obey a subpoena issued by a Federal court is an offense against the Federal government, within the meaning of U. S. R. S., section 1014. (2) Where a Federal court orders the arrest of a witness charged with having failed to obey a subpoena issued by it, and duly served, and the witness departs into another district before he can be arrested, any judge of the United States, having jurisdiction in the district to which the witness has removed, may order his arrest and removal back to the district in which he is charged with the offense. (3) In such cases the judge ordering the arrest of the witness cannot inquire into his guilt or innocence before ordering his removal. Authorities referred to: Riggs v. Supervisors, 1 Wool. 377; Ex parte Kearney, 7 Wheat. 38; Dixon's Case, Op. Atty-Gen. 317; Rowan's case, 4 id. 317; Conger's case. 4 id. 317; New Orleans v. Steamship Co., 20 Wall. 387. U. S. Circ. Ct., E. D. Missouri, Oct. 4, 1882. In re Ellerbe. Opinion by McCrary, C. J. (13 Fed. Rep. 530.) JUDGMENT FORMER CONVICTION WHERE -NONE ARRESTED ON FIRST INDICTMENT.- Evidence that on the defendant's motion judgment was arrested on the indictment because it was insufficient will not maintain a plea of former conviction. The case is within the rule, that when the first indictment is so far erroneous that no good judgment can be ordered against the defendant, and none is ordered, the proceeding is no bar, because in apprehension of law the defendant was never in danger. 4 Hawk. P. C., 317, 330; Marston v. Jenness, 11 N. H. 156; Com. Digest, "Indictment" L.; 1 Chitty Cr. Law, 453, 462; People v. Barrett, 1 Johns 66. New Hampshire Sup. Ct. State of New Hampshire v. Sherburne. (To appear in 58 N. H. 525.) TRIAL -EVIDENCE-PARTY A WITNESS-COMMENTS BY PROSECUTING ATTORNEY.- At the trial of a party for forging and uttering a forged promissory note with intent to defraud, after the State had offered testimony tending to prove that the note had been forged by the prisoner, and also that on a day specified he had uttered, or attempted to dispose of it to one T. C. as genuine, the traverser, in his own behalf, voluntarily went upon the witness stand, and confined himself, in testifying, to the simple statement that he could not write. Held, that the conduct of the traverser on the witness stand, and his silence when testifying as to matters involved in the pending inquiry, which were certainly within his knowledge, were circumstances which the jury had a right to consider in deciding upon the credit due to the witness, in connection with the other facts proved in the case, and were therefore necessarily circumstances upon which the State's attorney had a right to comment in addressing the jury, and to argue that they raised a presumption of the guilt of the traverser. See Stover v. People, 56 N. Y. 315. Maryland Ct. of Appeals, July 12, 1882. Brashears v. State of Maryland. Opinion by Miller, J. (58 Md. 563.) VARIANCE TERED. In an information for burglary the name of the owner of the building entered must, if known, be explicitly stated, and must be proven as laid. Evidence that a dwelling-house in which a burglary was committed is the "Drake House," is a "house kept by Mr. Drake," and that "Mr. Drake lives there," is sufficient to sustain a conviction under an information charging a burglarious entry of the dwelling-house of William Drake. In such case there is not a mere variance which can be remedied by amendment. If the Christian name of the owner of the dwelling-house were stricken out, in order to make the pleading and proof correspond, the information would be bad because it did not state the name of such owner with certainty to a common intent. See Commonwealth v. Perris, 108 Mass. 3; State v. Morrison, 22 Iowa, 158; Davis v. State, 54 Ala. 88. Wisconsin Sup. Ct., Oct. 10, 1882. Jackson v. State of Wisconsin. Opinion by Cole, C.J. NAME OF OWNER OF BUILDING EN འ་ FINANCIAL LAW. CHATTEL MORTGAGE RIGHTS OF INDORSEE OF NOTE SECURED BY,- The indorsee of a negotiable promissory note, secured by a chattel mortgage which was transferred at the same time the note was indorsed, but not assigned in writing, cannot maintain replevin in his Own name for the mortgaged property against the mortgagor. Authorities referred to: Pierce v. Stevens, 30 Me. 184; Pickard v. Low, 15 id. 48; Lincoln v. White, 30 id. 291; Prout v. Root, 116 Mass. 410; Homes v. Crane, 2 Pick. 610; Vose v. Handy, 2 Me. 322; Robbins v. Bacon, 3 id. 346; Crain v. Paine, 4 Cush. 483 Maine. Sup. Jud. Ct., Feb. 20, 1882. Ramsdell v. Tewksbury. Opinion by Virgin, J. (73 Me. 197.) CONSTITUTIONAL LAW — LICENSE TAX ON NATIONAL BANK — INJUNCTION.—(1) A license tax imposed by city ordinance upon a national bank being a tax upon the operations of the bank, and a direct obstruction to the exercise of its corporate powers, is unconstitutional. City of Pittsburgh v. First National Bk., 55 Pa. St. 45; McCulloch v. State of Maryland, 4 Wheat. 316; Osborn v. United States Bank, 9 Wheat. 738. (2) But when the ordinance did not undertake to make the tax a lien, giving an action of debt only for its collection, held, that the bank was not entitled to equitable relief by injunction. See Dows v. Chicago, 11 Wall. 108; Hannewinkle v. Georgetown, 15 id. 547; State Railroad Tax. Case, 92 U. S. 575; see also note to case at bar. 13 Fed. Rep. 433. U. S. Dist. Ct., W. D. Pennsylvania, October, 1882. Second National Bank of Titusville v. Caldwell. Opinion by Acheson, D. J. (13 Fed. Rep. 429.) NEGOTIABLE INSTRUMENT -SURETY - CONTRIBUTION. In the absence of a special agreement, the legal liability of the parties to a promissory note is to be determined by the relation they bear to the note, and the fact that one of them was the principal debtor and the others signed for his accommodation, will not change this rule or make the latter co-sureties as to each other. Hence, where one of two accommodation signers executed a note as joint maker with the prin cipal debtor and the other as payee and indorser, and there was no special agreement between them, held, that the former could not, after paying the note, call upon the latter for contribution. McCune v. Belt, 45 Mo. 174. Missouri Sup. Court. Hillegas v. Stephenson. Opinion by Norton, J. (To appear in 75 Mo. Rep. NEW BOOKS AND NEW EDITIONS. MCCLELLAN'S EXECUTOR'S GUIDE. The Executor's Guide. A complete manual for executors, administrators and guardians, with a full exposition of their rights, privileges, duties and liabilities, and of the rights of widows in the personal estate. By Robert H. McClellan, counsellor, etc., and former surrogate of Rensselaer county. Albany, N. Y.: William Gould & Son. Pp. viii, and 253. any persons need a law book to guide them, they are executors and administrators. Every step in the settlement of the estate of a decedent is hedged about by precise rules, the failure to observe any one of which is fraught with risk. Between creditors and those entitled to share in the distribution of the estate, the representative of the deceased is liable to have a task that is far from easy, and that has too little of profit to compensate for the trouble it gives. In former years in most counties the surrogate has been ready |