which he accepted. Held, that the mortgagee had not thereby, nor by a subsequent unaccepted offer to accept an installment, waived his right to call in the principal. (Langridge v. Payne, 2 J. & H. 423; 7 L. T. Rep. [N.S.] 73, disapproved of.) Eng. High Ct. of Justice, Ch. Div., Mar. 2, 1878. Keene v. Biscoe, 286. PROMISSORY NOTE: AGENCY: PAYMENT.-When a promissory note was given in payment for a sewing machine, and the note contained the following provision: "No credits allowed on this note unless indorsed on the note at the time the payment is made," and the maker of the note paid a part of it at the time to the agent of the principal, and afterward paid the residue to the agent, taking his receipt in full for the note, held, that by accepting the note with the credit upon it, the principal adopted the act of the agent, and the payment to him of the balance due on the note, without any notice that his agency had been terminated, was a good payment, although the agent at the time had not the note in his possession. If the stipulation in the note that no credit should be allowed unless indorsed on it, had any validity at all (which is doubtful), it could not prevent the payment of the note in any ordinary business way, which would be good against the creditor. Sup. Ct., Indiana, November, 1877. Howe Machine Co. v. Simler. RECEIVER: FOREIGN ATTACHMENT: COMITY BETWEEN THE COURTS OF DIFFERENT STATES: APPOINTMENT OF RECEIVER IN ANOTHER STATE RECOGNIZED AS AGAINST ATTACHING CREDITOR WHO IS A CITIZEN OF THE SAME STATE.-In pursuance of the comity established between the different States, the courts of this State will recognize the appointment of a receiver in another State, unless his claims come in conflict with the rights of our own citizens. B. and R., citizens of Virginia, by process of foreign attachment issued in Pennsylvania, attached certain property of a railroad company located and doing business in Virginia. Shortly prior to this attachment, the railroad, by decree of a Virginia court, had passed into the hands of receivers, who claimed the fund attached as against the attaching creditors. Held, that the receivers were entitled to the fund, and that the equitable transfer to them of their debt in Virginia was binding upon B. and R. in Pennsylvania, Per Agnew, C. J. The attaching creditors have no right, after the appointment of a receiver by a court within their own State, binding upon them there, to attempt to avoid its effect by escaping from its jurisdiction, and coming here to ask us to infringe the comity we owe to the acts of their own courts within their jurisdiction. Instead of comity this would be unfriendliness, for they ask us to aid them in a violation of their own law. Sup. Ct., Pennsylvania, Feb. 14, 1878. Bagley v. Atlantic & Miss., etc., R. R. Co. (W. Not. Cas.) USURY: WHEN INJUNCTION WILL ISSUE TO RESTRAIN COLLECTION OF.-Where a person borrowing money agrees to pay usurious interest, and thereafter he pays the principal of the loan with legal interest, and does and pays all that either law or equity would require that he should do or pay: Held, that equity will interfere, upon a proper application, to prevent the collection of the usurious interest. Sup. Ct., Kansas, January, 1878. Waite v. Ballou. NOTES OF DECISIONS ON CRIMINAL LAW. COMMON GAMBLER: EVIDENCE.-An indictment charged that M., on the 15th day of August, A. D. 1875, at P., in said county, did deal "faro," whereby, by force of the statute in such case made and provided, the said M. was then and there taken and held to be a common gambler." It was proven that in one case M. dealt a game of faro which was played for money. The court refused to charge that at least three instances of gaming must be shown to prove the offense of being a common gambler, and charged that proof in one instance was sufficient. Upon a verdict of guilty, the defendant excepted on the ground that the offense was not sufficiently set forth. Held, that inasmuch as the statute declares that "any person who shall be guilty of dealing 'faro' when money or property is dependent upon the result, shall be taken and held as a common gambler," it is not essential that three instances should be proven. It does not mean that such an offender is in fact a common gambler, but simply that he shall rank as a common gambler in point of criminality. (Cameron v. State, 25 Ala. 383; Swallow v. State, 20 id. 30; Torney v. State, 13 Mo. 455.) Even if the game can be innocently dealt, the explanatory phrase makes it certain that the act charged in the indictment is the act forbidden by the statute, and excludes any assumption that the indictment may be proved and the defendant still be innocent. (State v. Burton, 25 Tex. 420; Brown v. State, 10 Ark. 607; Warren v. State, 18 id. 195; Guest v. State, 19 id. 405; Tully v. Comm., 4 Metc. 357; Comm. v. Ashley, 2 Gray, 356; State v. Absence, 4 Port. 395; State v. Plastridge, 6 R. I. 76, 83.) State v. Melville, 11 R. I. 417. PRESENCE OF PRISONER AT TRIAL.-It must affirmatively appear, from the record in a criminal case, that the prisoner was present during the trial, and at the rendition of a verdict, or the judgment against him will be reversed. State v. Able, 65 Mo. ACCOMPLICE: MURDER.-A bystander does not become an accomplice by mere approval of a murder committed in his presence; and the charging of the jury that if the defendant was "present, aiding or abetting, or counseling, or inciting, or encouraging, or approving" the act, he was an accomplice, is an error, and the court must reverse and award a new trial. State v. Cox, 65 Mo.. ADMISSION OF ACCOMPLICE AS WITNESs.-The admission of an accomplice as a witness for the government, upon an implied promise of pardon, rests upon the judicial discretion of the court, and is not at the pleasure of the public prosecutor; an accomplice under an indictment for another offense, as a general rule, will not be admitted as a witness when such fact is known to the court; although he testify in good faith against his accomplices in the trial upon one indictment, he may be tried upon the other, and upon conviction punished. It would be a fraud upon the court and an obstruction of public justice, if the public prosecutor should enter into an agreement, unsanctioned by the court (if such sanction could be given in such a case), offering immunity or clemency to several defendants, in several indictments, upon the condition that one of them become a witness for the prosecution upon still other indictments. An accomplice as a witness cannot have an attorney, but he may act under the advice of an attorney as to whether he shall be was come a witness for the prosecution, and when he becomes such a witness, the relations between him and his attorney ceases. Wight v. Rindskoff, 43 Wis. ABORTION: EVIDENCE OF ACCOMPLICE.-H. indicted for an attempt to produce an abortion, in having advised a pregnant woman to take, and in having administered to her a certain medicine with an intent to produce an abortion. The woman appeared as witness for the State. The defendant asked the court to charge, that, "if this witness took the medicine with NEW BOOKS AND NEW EDITIONS. AMERICAN DECISIONS, VOLUME II. The American Decisions, containing all the cases of general value and authority decided in the courts of the several States from the earliest issue of the State reports to the year 1869. Compiled and annotated by John Proffatt, LL.B. Author of "a treatise on Jury Trial. Volume II. San Francisco: A. L. Bancroft & Company. intent to procure an abortion, she was an accomplice, THE present volume of this series of reports con and as such, her evidence alone would not be sufficient on which to base a conviction." Held, that so far as she was concerned an abortion upon herself was not an indictable offense at common law; that a conviction on the uncorroborated evidence of an accomplice is not illegal. (Atwood v. Robbins, 1 Leach's C. C. 464; Rex v. Durham, id. 478; Rex v. Wilkes, 7 C. & P. 272; Rex v. Jones, 2 Camp. 131; Reg. v. Stubbs, 33 E. L. & Eq. 552; Reg. v. Farler, 8 C. & P. 106; 1 Phil. Ev. [10th Eng. ed.] ch. 6, § 2, note 1; 1 Whart. Crim. Law, § 783, 6th ed., note.) It is the practice in our courts to advise juries against conviction on such testimony alone, and it is unlikely that any judge in a proper case would refuse to charge the jury, as the circumstances of the case required; still should a judge refuse so to do, errors could not be assigned on such refusal, it being at his discretion. State v. Hyer, 39 N. J. Law. THE COURT OF APPEALS DECISIONS. HE following decisions were handed down Friday, April 26, 1878: In re petition of N. Y. Protestant Episcopal Public School to vacate assessment, etc., No. 401, order affirmed; no opinion. - Ridell v. N. Y. C. & H. R. R. R. Co., No. 191, affirmed; opinion by Earl, J. - Hoe v. Hussey, No. 209, affirmed; no opinion. Auburn City Nat. Bank v. Hunsiker, motion denied, with $10 costs; no opinion. -Maybury v. Homer and Cortland Gas-light Co., No. 183, affirmed; no opinion. In re application of Marsh, motion denied, with $10 costs; no opinion. Hastings v. Westchester Fire Ins. Co., motion denied, with $10 costs; no opinion. CORRESPONDENCE. CONVEYANCE OF LAND TO HUSBAND AND WIFE SINCE ACTS OF 1848 AND 1849. To the Editor of the Albany Law Journal: SIR-My attention has just been redirected to your note, Vol. XI, page 403, in which you say, that our Court of Appeals has since the passage of the act there quoted, "recognized the rule, that a conveyance to husband and wife, creates an estate by entireties." I have carefully examined the case of Wright v. Sadler, 20 N. Y. 320, cited by you. The conveyance which was the subject of controversy in that case, was executed before the passage of any of the "Acts for the more effectual protection of the property of married women," and the enlargement of their rights. I am not aware that the Court of Appeals has, in any case, passed upon this question. I think it has not been sharply presented in any of the reported cases in the Supreme Court, at General Term, and may be still regarded as open. See Wright v. Wright, 54 N. Y. 437; More v. More, 47 id. 467; Miller v. Miller, 9 Abbott (N. S.), 444-448; Sergeant v. Steinberger, 2 Ohio, 306. ROCHESTER, April 16, 1878. B. tains selections from twenty-five volumes of State Reports, embracing decisions made between 1797 and 1808 in the courts of Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Kentucky. The work of the editor is as carefully done as it was in the first volume, and the book makes accessible about all that is of general value in the volumes from which it is made up. The annotations scattered through the volume are valuable and refer to subsequent cases where the cases reported are sustained, overruled, doubted, or criticised, and also to standard text books wherein they are mentioned. We could not, within the limits of this review, mention all the cases of value contained in the volume. The New York cases given are taken from Caine's Reports and Cases, and from 3 Johnson's Cases, and are the decisions of Chancellor (then Judge) Kent and his associates. They relate very largely to marine insurance which, at the time, was a subject coming frequently before the courts. In these cases very many of the fundamental principles governing this subject were established and the cases are authority, not only here but in all countries where the reputation of the leading jurist of our State has extended. In the decisions of the Pennsylvania court reported are several valuable cases upon the same subject, which are authority to day. The single Massachusetts (1 Mass.) and the two Connecticut (1 & 2 Day) volumes furnish no cases that we need refer to. In the New York volumes, in addition to the Marine insurance cases, we notice Hopkins v. Beedle (1 Cai. 347), p. 191, where it is held not to be slander to say that one is foresworn, though it is otherwise to say that he is perjured. Hendricks v. Judah (2 Cai. 25), p. 213. If a house has been leased for a year before an act of bankruptcy, and the bankrupt continue in possession thereof afterward, his certificate of discharge will be no bar to an action for the subsequent rent. Seixas v. Woods (2 Cai. 48), p. 215, where it is held that in order to maintain an action of warranty in a sale of goods there must be an express warranty or fraud on the part of the vendor. A sound price does not imply a warranty of soundness, nor does a description of goods in a bill of parcels amount to a warranty. The editor in a note refers to Hawkins v. Pemberton, 51 N. Y. 198; and Dounce v. Dow, 64 id. 411, as shaking the authority of this case. Purson v. Pursuit Post (3 Cai. 175), p. 264. alone gives no property in animals feræ naturæ. In Pennsylvania we notice these cases: McMillin v. Burch (1 Binney, 178), p. 426. To call a clergyman a drunkard is actionable. Desebats v. Berquur (1 Binney, 336), p. 448. A will of personal property not executed in conformity to the law of the testator's domicile at the time of his death, will not be operative in regard to personal property in a foreign country, though executed according to the laws of that country. The binding of the present volume is excellent, we think, better than it was in the preceding volume. NATIONAL BANK CASES. of cashiers, and one on the liability of sureties on the bonds of bank officers. The book will be especially serviceable to bank attorneys and to the executive officers of banks. National banks are in many respects sui generis ME and subject to rules of law not applicable to other banking institutions. This volume contains the cases in which the National Banking Act has been construed and the duties and obligations of National banks have been defined. Great care and industry seem to have been used in making the collection complete, and the result is that beside the cases reported in the regular reports, there are here reported many cases from the legal periodicals, beside others not otherwise reported, the whole making a volume of a thousand pages. The subject of taxation was the earliest, as it was the most important, that engaged the attention of the courts. The courts of most of the States considered it and made adjudications more or less friendly to the banks, but the Supreme Court of the United States, so early as 1866, settled the general principles which should govern their taxation. Under the legislation and the adjudications as they stand today, the only limitation there is on the taxing power of the State over National banks is that of good faith and comity, or in other words, that there shall be no unfriendly discrimination against such banks. The subject of interest or usury was also one on which there was a variety of adjudications until the Supreme Court, in Farmers & Mechanics' Nat. Bank v. Dearing, decided that National banks were not subject to the State usury laws, but that the only penalties to which they were subject for taking unlawful interest were those imposed by the act of Congress. Several minor questions relating to that subject are yet the subject of doubt. Thus the Court of Appeals of New York, in Hintermister v. First Nat. Bank, held that in an action to recover the penalty imposed by Congress for taking unlawful interest, the recovery is limited to twice the amount taken in excess of the legal interest; while the United States Circuit Court, in Crocker v. First Nat. Bank, held that the recovery should be for twice the full amount of interest paid. Then, again, the courts seem not entirely clear as to whether excessive interest exacted in other transactions can be recouped in an action by a bank on a note or loan. The courts of Illinois and Kentucky were doubtful if actions for the penalties imposed by Congress for taking unlawful interest would lie in the State courts, on the ground that they were not bound to enforce the penalties imposed by Federal authority. (Missouri, etc., Co. v. First National Bank, p. 401; Newell v. National Bank, p. 501; but the Court of Appeals of Maryland in Ordway v. Central National Bank, p. 559, held, in an able and well-reasoned judgment, that the State courts had jurisdiction. The powers of National banks to take mortgages and other security for loans and discounts, their liability for special deposits for safe-keeping, their right to purchase bills and notes, their control over their officers and servants, the liability of such officers and servants for misappropriating the funds of the bank, and the liability of sureties on the bonds of such officers, are among the subjects covered by the cases. The Reporter has added several notes, among which we notice an elaborate one on the powers and duties NOTES. ESSRS. Robert Clarke & Co., of Cincinnati, have issued a General Catalogue of Choice Books for the Library, comprising a selection of the best books by ancient and modern authors in all departments of literature, science and art, classified and priced. The book has been prepared with judgment and taste, and will be found to be serviceable by all students and book buyers. The Notaries' Journal thus speaks of THE ALBANY LAW JOURNAL: "The attention of our subscribers is called to this valuable Journal, the 17th volume of which is now in course of publication. It is edited by Isaac Grant Thompson, Esq., and gives much valuable information, as well as many important cases, very desirable for bankers, banks and notaries. The weekly numbers form two volumes each year of about 500 pages each." Dr. Martin, president of the Chinese Imperial College at Peking, has, in the past few years, translated and published in the Chinese tongue, Wheaton's Elements of International Law, De Marten's Guide Diplomatique, a considerable portion of the French code, Bluntschli's Volkerrecht, and Woolsey's Introduction to International Law. These text-books have the sanction of the Chinese Foreign Office, and are widely studied. The Troy Times says: "Irving Browne has written a volume entitled 'Short Sketches of Great Lawyers,' comprising a collection of brief biographies originally appearing in the ALBANY LAW JOURNAL, of which he has long been a leading contributor. Mr. Browne has thoroughly revised and amplified the succinct sketches, and we have no hesitancy in saying that the work will be didactic, critical and readable-as the author's productions always are- and meet with a large sale and hearty reception, especially among members of the legal fraternity. The book will soon be issued from the press of Weed, Parsons & Co." In the United States Circuit Court for the District of California, on the 29th ult., Judge Sawyer decided, in the case of a Chinaman who applied for naturalization, that a Chinaman is not a white person within the meaning of the term as used in the naturalization laws, and not entitled to become a citizen. The case will undoubtedly be appealed to the United States Supreme Court. The constitutionality of a law of Virginia, taxing the coupons to its own bonds, was considered by the Supreme Court of Appeals of that State, in the case of Hartman v. Grenhow, on the 25th ult. The judges were equally divided. The case will be taken to the Federal Supreme Court. Coles Bashford, formerly delegate to Congress from Arizona, ex-Secretary of that Territory and ex-Governor of Wisconsin, died last week, at Prescott, Arizona, of heart disease. He was a native of this State and received his legal education here. Edwin A. Doolittle, a member of the New Jersey bar, dropped dead in a Jersey City railway station, on the 29th ult., heart disease being the cause. He was sixty-five years of age, and a brother of ex-Senator Doolittle. THE United States Circuit Court for the District of California, in case just decided, holds that a native of China of the Mongolian race is not entitled to become a citizen of the United States under the naturalization laws. The provisions of the statutes relating to naturalization are declared by the act of Congress of February 18, 1875, to "apply to aliens being free white persons and to aliens of African nativity and to persons of African descent." The court in this case holds that a person of the Mongolian race is not a white person within the meaning of the statute. As this is the first time the question at issue was ever raised the court was without judicial precedent to guide it in forming its opinion, but the debates in Congress furnish considerable evidence as to what was the intention of that body in framing the statutes at present in force. The old statute passed in 1802 limited the privilege of becoming citizens to free white aliens. In 1870 a statute was enacted extend ing it to aliens of African nativity and to persons of African descent. When the statutes were revised the word "white" was omitted, and the section in the revision conferring the privilege mentioned read: § 2165. “An alien may be admitted to become a citizen," etc., but a separate section declared (§ 2169) that "the provisions of this title shall apply to aliens of African nativity and to persons of African descent." The act of February 18, 1875, changed this by again limiting the privilege to the classes entitled to it before the revision. When the subject was discussed in the Senate at the time of the passage of the act extending the privilege to Africans it was sought to accomplish the proposed end by striking the word "white" out of the then existing law, but this was opposed on the ground that if this was done Mongolians would be entitled to citizenship, and the proposed amendment was not made. The same reasons were given in debate in 1875 for the enactment of the law of that year. As the court concludes, the law as it was framed was intended to exclude some classes, and as all white aliens and those of the African race are entitled to naturalization under the wording of VOL. 17.- No. 19. the statute it is difficult to perceive whom it could exclude unless it be the Chinese. The rule of law giving to the holder of a mortgage the right to hold for deficiency a grantee who has taken title to the mortgaged premises by a deed wherein he assumes the payment of the mortgage is a harsh one and liable to work injustice. The ground of the rule that the grantee has been allowed in making his purchase, as part of the purchaseprice, the amount of the mortgage, would be a proper one as between the parties to the conveyance, but it furnishes no reason for giving to the holder of the mortgage additional security upon his investment. The true and just rule would be where one taking title to land assumes the payment of a mortgage thereon he shall be liable to his immediate grantor, and to him only, for such sum as the grantor may be compelled to pay upon a judgment for a deficiency on a foreclosure of the mortgage. In that case the holder of the mortgage could look only the deficiency, and could not take the benefit of a to the party he had originally trusted to make good contract made with the sole intention of securing that party from loss. A memorial presented to the Legislature last week calls attention to the fact that numerous cases of hardship have recently in New York city arisen from the operation of the rule mentioned, and ask the passage of an act providing that no person shall be liable for the payment of any bond or mortgage unless he shall have signed the same, or subscribed an agreement to pay the same, and that no person shall be liable for any deficiency in the sale of mortgaged premises unless he shall have signed the mortgage under which said premises are sold, or shall have executed an agreement in writing to pay such deficiency. The law suggested would be a good one, though we think it is too late to hope for its passage this year. The bill providing that whenever a marriage shall be dissolved for adultery, the defendant against whom a decree is rendered may, in case the complainant has remarried, be permitted by order of the court to remarry, partially removes what has always seemed to us a very foolish provision of our statutes relating to divorce. At the present time the party against whom a decree is rendered is not permitted to remarry unless he takes the trouble to leave the State, which indeed is full as easy as it is to apply to the Supreme Court for permission to marry. The bill for the repeal of the Bankrupt Act is not yet a law, the friends of the act having mustered strength enough to delay action upon it. We have hopes, however, that a few days at most will accomplish the result that the business men of the country are anxiously awaiting for. Mrs. Myra Clark Gaines does not seem to be content with the results of the life-long litigation which she has successfully carried on in reference to the title to real estate in New Orleans, but like the ancient Macedonian general she sighs for new worlds to conquer. She has now commenced a suit to recover possession of a considerable share of the business portion of St. Louis. She claims that the title to this property was in her father, Daniel Clark, and pretends that she has record and other evidence to sustain her claim. The chain of title is said to be very similar to that which established her ownership to property in New Orleans, and consequently she enters upon her venture with at least a possibility of ultimate success. The claim has, however, lain dormant so long a time that it is probable the Missouri statutes of limitation will prevent a recovery, though it is said that the constitutionality of these statutes will be tested. The law in relation to the liability of a master to his servant for injuries received by him through the negligence of a fellow servant in the same line of employment is unsatisfactory to a very large part of the community both here and in England, and a strong feeling exists in that country in favor of a statutory provision rendering the master liable to those in his employ to the same degree that he is now to others. Of course the servant class favor this movement, but there are many others beside who have no personal interest to be advanced who believe that a change should be made. The decisions made in many cases have been attributed to a hostility on the part of the bench to the laboring classes, and many sympathetic persons have been influenced by their feelings to advocate measures about which they know practically very little. Every employment has its risks. The law requires the employer to protect his servant against such of those as arise from defective machinery, and it also requires him to exercise a reasonable degree of care in the selection of his servants. When he has provided safe machinery, and so far as he knows, careful servants, he has done all that can be properly asked of him so far as the personal safety of his servants are concerned. The outside public may ask him to do more, but a change in the law such as is desired by the promoters of the movement mentioned would render many kinds of business too hazardous to undertake. NOTES OF CASES. for unpaid balances thereon to the company, or to the creditors of the company after it has become bankrupt. The same doctrine was held by the Court of Appeals of this State in Matter of Empire City Bank, 18 N. Y. 200, the court going even further than does the principal case, and holding persons to whom stock in a bank had been transferred by way of hypothecation for debts due them, and in whose names the stock stood registered at the time of the bank making default, to be stockholders, within the meaning of the banking laws of this State, and liable for the debts of the bank to an amount equal to the stock held by them. And in Holyoke Bank v. Burnham, 11 Cush. 183, it was decided that a transfer of stock on the books of the bank, intended merely to be held as collateral security, makes the holder liable for the bank debts. It was said that the creditor is to be considered as the absolute owner, and that his arrangement with the debtor cannot change the character of the ownership. See, also, Roosevelt v. Brown, 11 N. Y. 148, where a similar rule is applied to a manufacturing corporation; Newry, etc., Railway Co. v. Moss, 14 Beav. 64, where it was said that only those persons who appear to be shareholders in the register of the company are liable to pay calls; Re Phoenix Life Ins. Co., 2 Johns. H. 229, where trustees who held stock under a marriage settlement in which they had no beneficial interest, who were registered as holding the shares as trustees, and who receipted for dividends as trustees were held liable to contribute to the extent of the liability of the stock, and not merely to the extent of the trust estate. The Supreme Judicial Court of Maine, in the case of Heins v. Cargill, 67 Me. 554, holds that an alteration of a note for $500 to one for $400 is a material alteration, and if made without the consent of the signer or indorser, will constitute a good defense to his liability upon the note. The change to be sure is not disadvantageous to the one holden to pay the note, but the court says that it makes another and a different contract of it, and any signer or indorser has a right to say, and can say truly, that the note, in its altered form, is not his contract. See Chadwick v. Eastman, 53 Me. 12; Lee v. Starbird, 55 id. 491. See, also, upon the subject of alterations of written instruments and their effect, 16 Alb. L. J. 64 and 80. In Bartlett v. City of Bangor, 67 Me. 460, it is held that a cul de sac may become a public way by location or dedication as well as a street that is open at both N the case of Pullman v. Upton, just decided by ends. This principle was laid down by Lord Ken I the Supreme Court of the it is you in Rugby V. Merryweather, 11 East, 376, that an assignee of corporate stock, who has caused it to be transferred to himself on the books of the corporation, but who merely holds it as collateral security for a debt due from his assignor, is liable note, he saying that otherwise such places would be traps to catch trespassers. And in Bateman v. Black, 14 Eng. L. & Eq. 69, the question was fully considered, and the court held that it was no objec |