but he identified books and vouchers of his bank, and his testimony tended to show irregularities which might be imputed to the defendant Richards. If the case against Richards stood alone, it could not be said that, as to him, there was not sufficient evidence to authorize an indictment.

This summary of the proceedings before the grand jury is sufficient to indicate that they were such as to seriously endanger, if not to preclude, an intelligent and fair consideration of the charges preferred against the accused. It is the duty of the court, in the control of its proceedings, to see to it that no person shall be subjected to the expense, vexation, and contumely of a trial for a criminal offence unless the charge has been investigated and a reasonable foundation shown for an indictment or information. It is due also to the government to require, before the trial of an accused person, a fair preliminary investigation of the charges against him. The cases are frequent when, after all these precautions have been observed, it appears upon the trial that the government has been subjected to discredit and expense which might have been avoided if there had been a more careful preliminary investigation.

Notwithstanding the reasons which exist for insisting upon a rigid adherence to this practice, in the interests of decorum, economy, and justice, it has been zealously maintained that so confidential and sacred should the proceedings of a grand jury be considered that every avenue should be closed which. may lead to a scrutiny of their transactions. Accordingly, ancient precedents have been enforced, and even extended, in modern cases, for the purpose of preventing any inquiry into the proceedings of the grand jury, and many authorities are cited to the effect that not only is it not permissible to show any irregularity or misconduct in their proceedings, by the testimony of any juror, but also that the lips of .witnesses who appeared before them are to be sealed, and that no person whose duty it may have been to be present shall be heard tc impeach or impugn the propriety and regularity of their proceedings.

In one of these cases it was held by a court entitled to great

respect that when a grand jury has caused several persons accused of crime to be summoned before them and examined as witnesses, and had thereupon found indictments against them, and a motion was made to quash the indictments, the affidavits of the accused would not be received to show the facts, because public policy would not permit the transaction before a grand jury to be disclosed, (U. S. v. Brown, 1 Sawyer, 531;) and thus, although the grand jury had trampled upon the constitutional right of the accused not to be compelled to be a witness against himself, the court refused to entertain an inquiry to ascertain whether, without this flagrant violation of privilege, there was any evidence to warrant the finding an indictment.

Other authorities, however, are found which have adopted more liberal and as it seems to me more sensible views, and assert the right and duty of the court to exercise a salutary supervision over the proceedings of a grand jury. It is only practicable to do this by removing the veil of secrecy whenever evidence of what has transpired before them becomes necessary to protect public or private rights. Thus, in Low's Case, 4 Greenl. 439, the grand jurors were permitted to testify that they acted under the mistaken impression that it was sufficient if a majority of the jurors concurred in finding a bill and twelve had not concurred. In U. S. v. Cooledge, 2 Gall. 363, Judge Story received the affidavit of a witness to prove that he was not in fact sworn when examined before the grand jury, saying: "It is of the highest importance that the institution be preserved in its purity, and that no citizen be tried until he has been regularly accused by the proper tribunal." These cases arose upon motion to quash the indictment.

In Burdick v. Hunt, 43 Ind. 381, it is said there is no sufficient reason why the prosecuting attorney may not be called upon in a court of justice to disclose any evidence given or proceedings had before a grand jury. And the following authorities are to the effect that generally the evidence of grand jurors is competent whenever it is necessary to ascertain who was the prosecutor: Sikes v. Dunbar, 2 Wheat. Sel. N. P.

1091; Hindekoper v. Cotton, 3 Watts, 56; or what was the issue and what the testimony of witnesses before a grand jury in a given case: Thomas v. Commonwealth, 2 Robinson, (Va.) 795; State v. Offutt, 4 Blatchf. 355; State v. Fassett, 16 Conn. 457; Commonwealth v. Hill, 11 Cush. 137; State v. Broughton, 7 Iredell, 96; Way v. Butterworth, 106 Mass. 75; Burdick v. Hunt, 43 Ind. 381.

The rule which may be adduced from the authorities, and which seems most consistent with the policy of the law, is that whenever it becomes essential to ascertain what has transpired before a grand jury it may be shown, no matter by whom; and the only limitation is that it may not be shown. how the individual jurors voted or what they said during their investigations, (The People v. Shattuck, 6 Abb. N. C. 34; Commonwealth v. Mead, 12 Gray, 167,) because this cannot serve any of the purposes of justice.

It would be difficult to find a case which more forcibly illustrates the good sense and justice of the rule which permits a free disclosure than the present. It is patent that the grand jury permitted themselves to be influenced by the appeals and arguments of a zealous advocate, by hearsay testimony, and by testimony which the law prohibits, although they were advised to the contrary by the district attorney; and it seems much more probable that they were led to their conclusions by prejudice and undue zeal than by calm and fair deliberation. If there was evidence which authorized an indictment, it was so blended with and obscured by the mass of hearsay and otherwise incompetent testimony that it was impossible for the jury to distinguish it; and it would be expecting too much of a body, untrained in judicial investigation, to believe that they could discriminate intelligently between the competent and the incompetent evidence, so as to accord due weight to the former and be uninfluenced by the latter.

It is not intended to suggest that whenever incompetent testimony is received by a grand jury its reception is such error or irregularity as to vitiate their finding, nor to hold that the evidence upon which an indictment is found shall

be such as the court would regard as making out a prima facie case against the accused. It is not the province of the court to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged; but in extreme cases, when the court can see that the finding of a grand jury is based upon such utterly insufficient evidence, or such palpably incompetent evidence, as to indicate that the indictment resulted from prejudice, or was found in wilful disregard of the rights of the accused, the court should interfere and quash the indictment. Very respectable authorities intimate than an indictment should be quashed when it appears that it was found by the grand jury without adequate evidence to support it, or when the grand jury permitted the rules of evidence to be violated, (Dodd's Case, 1 Leach, C. L. 184; People v. Ristenblatt, 1 Abb. Pr. 268;) but if this were permitted it would result that the court would become the tribunal to indict as well as the tribunal to try the accused.

In State v. Froiseth, 16 Minn. 298, it was conceded by the attorney general, and the court concurred, that where the grand jury required an accused person to be brought before them and testify touching the accusation the indictment should be set aside, although in that case the indictment was not found solely upon the testimony of the accused. In The People v. Briggs, Albany County Oyer and Terminer, Osborne, J., (MS.,) held that an indictment should be quashed where the defendant's wife was called as a witness against him by the grand jury, for the reason that this was a substantial error, and it was doubtful whether the grand jury would have found an indictment without the wife's testimony. These authorities are in point here.

The motions to quash the indictments are granted.

IN THE MATTER OF LAWRENCE and others, Bankrupts.

(District Court, S. D. New York. Janury 15, 1881.)

1. BANKRUPTCY-SURVIVORS OF FIRM-CHOSE IN ACTION-JUDGMENT— LIEN ON REAL ESTATE-MARSHALLING FIRM ASSETS-GENERAL ASSIGNMENT IN TRUST FOR CREDITORS-SIGNATURE OF FIRM-TITLE OF ASSIGNEE IN BANKRUPCY-ESTOPPEL-SUBROGATION OF SURETIES. Where the five bankrupts and their father constituted a firm, and as such used real estate belonging to him as firm property, and he died, leaving it to them by will as tenants in common, and they alone continued the same business under the name of the old firm, assuming its liabilities, taking all the assets and using the real estate as part thereof, and they brought suit in the state court on a promissory note received by the old firm on account of goods sold by it, which resulted on appeal in a judgment against them for costs-the judgment, the docket, and their own complaint describing them as “surviving partners of themselves" and their deceased father-and four days before it was docketed they made an assignment of all their property, including the land, signed by the three of them only individually and in the firm name by one of them as attorney in fact, there being no other evidence of his authority to sign for the other two,—

On application of the judgment creditor for payment out of the proceeds of the sale of the land by the assignee:

Held, that the description of the bankrupts as “survivors” related not to the capacity in which they sued, but the mode of deriving their title, and as such was mere surplusage, and the lien of the judgment was the same as it would have been if this description had been omitted.

Also held, that the judgment, being a firm obligation, and the real estate firm property, though the legal title was in the bankrupts individually, neither the copartners nor other copartnership creditors had any superior equities, as against the judgment creditors, which would, as in case of a judgment against one partner on his individual debt, prevent the attaching of the lien.

Also held, that under the New York law (St. 1877, c. 466; requiring that a general assignment in trust for creditors should "be in writing, and duly acknowledged before an officer authorized to take the acknowledgment of deeds," the general assignment in this case should have been executed and acknowledged by all the members of the firm, the same as is required in a deed of real estate, and that the assignment was void and inoperative to transfer any title or interest.

Held, further, that, as the assignee in bankruptcy sold the land and received its proceeds under his title as assignee in bankruptcy, the assignment having been treated by all parties in interest as inoperative in respect to the land, it will be presumed that he received it as property vested in the bankrupts when the petition in bankruptcy