of the court in this case, I do not agree to the opinion so far as it is an argument in favor of a principle on which is founded the grossest judicial abuse of the present day, namely, the absorption of a property or a fund which comes into the control of a court by making allowances for attorneys' fees and other expenses pending the litigation, payable out of the common fund, when it may be finally decided that the party who employed the attorney, or incurred the costs, never had any interest in the property or fund in litigation.

This system of paying out of a man's property some one else engaged in the effort to wrest that property from him can never receive my approval; and as I have had no opportunity to examine the authorities cited in the opinion, I cau do no more than make my protest against the doctrine.

NEW YORK COURT OF APPEALS ABSTRACT.

NEXT OF KIN - WHEN WIDOW INCLUDED IN TERMSTATUTORY CONSTRUCTION — MARRIAGE.- (1) Under the provisions of the Revised Statutes (part 2, ch. 6, tit 5, §§ 9 and 10), giving a right of action against an executor, etc., by any legatee or "by any of the next of kin entitled to share in the distribution of the estate upon the refusal of the executor to pay the legacy bequeathed to such legatee," or the share of any such person entitled to distribution," the widow is included in the words "next of kin" and is entitled to maintain the action. The words "next of kin " in a strict or primary sense do not include the widow. They mean relations in blood. Murdock v. Ward, 67 N. Y. 387; Luce v. Dunham, 69 id. 36; Keteltas v. Keteltas, 72 id. 312. These were cases arising under wills where the words were construed according to their strict legal definition, it not being shown that another sense was intended. But in the construction of wills, statutes, or other instruments, the intention is the controlling consideration, and words of description will be held to include subjects to which they are not strictly applicable, if it appears from the context or other circumstances which may be legitimately referred to, that such inclusion was intended, and this was conceded in the cases cited. The purpose of the sections mentioned was to give a remedy by action for the recovery of legacies and distributive shares. The widow is a distributee under the statute of distributions. In all cases she is entitled to a part and in one contingency to the whole of the personal estate of the intestate, 2 R. S. 96, § 175. There is no reason why she should not have the same remedy as the other distributees of intestate's estate. And under the previous statute for which this is a substitute the widow was clearly entitled to sue. Prior to the Revised Statutes, the husband in popular though in accurate language was said to be next of kin to his wife, and conversely the next of kin to him. See Schuyler v. Hoyle, 5 Johns. Ch. 206; Whitaker v. Whitaker, 6 Johns. 112; Taylor v. Delaney, 2 Caine's Cas. 143; Goodell v. Jackson, 20 Johns. 693. (2) The rule has been frequently recognized in this State that proof of matrimonial cohabitation, declarations of the parties and reputation that they are man and wife is sufficient on which to found a presumption of marriage. Fenton v. Reed, 4 Johns, 52; Van Buskirk v. Claw, 18 id. 346; Clayton v. Wardell, 4 N. Y. 230; O'Gara v. Eisenlohr, 38 id. 296. See also Rose v. Clark, 8 Paige, 574; Starr v. Peck, 1 Hill, 270. Judgment affirmed. Betsinger v. Chapman. Opinion by Andrews, C. J [Decided April 11, 1882.]

tion to exceptious taken upon the trial of a common law action. It applies only to cases in equity when issues have been framed to enable the court to have the aid of a jury in determining the facts. The rule of law applicable to the granting of new trials by appellate courts, for errors committed in the admission or rejection of evidence upon the trial of actions at common law, has not been changed by this section of the Code. Judgment reversed. Machen v. Lamar Insurance Co. of New York. Opinion by Tracy, J.

were

assess

VALID.-The only verification of assessment-roll in the city of Brooklyn was by an affidavit containing the statements provided by law for assessment-rolls in the different towns of the State, but a further oath required by Laws 1854, chapter 384, section 31, as amended Laws 1862, chapter 63, section 21, to " the effect that they have together personally examined within the year past each and every lot or parcel of land, etc., was omitted. Held, that this defect in the ment-rolls rendered them wholly void, and tax sales made upon them absolutely void, and under a condition in such sales that if the proceedings previous to sale were irregular, the purchasers at the sales should be repaid their money by the city; a purchaser was entitled to recover from the city the amount paid by him. When there has not been a substantial compliance in imposing taxes with the statute in matters intended for the benefit and protection of tax-payers the taxes cannot be upheld upon the presumption that the assessors performed their official duty, it must appear that they performed their dnty. It was here their duty to take the prescribed oath that is made by law the only evidence that they made the examination the statute requires. The part omitted was a substantial part, and before the property of one can be compulsorily taken for the payment of taxes the substantial requirements of the statute intended for his protection must be strictly followed. See Van Rensselaer v. Witbeck. 7 N. Y. 517; Westfall v. Preston, 49 id. 349; Bellinger v. Gray, 51 id. 610; Bradley v. Ward, 58 id. 401; People v. Suffern, 68 id. 321; Merritt v. Village of Portchester, 71 id. 309; March v. Supervisors of Clark, 42 Wis. 502. In Parish v. Golden, 35 N. Y. 462, it was sufficient for the decision of the case to hold that the defect was not substantial and for more than that the case has not upon this point been regarded as authority. In Buffalo & St. Louis R. Co. v. Supervisors of Erie, all that was decided was that the affidavit to the assessment roll was a substantial compliance with the statute. Judgment of General Term reversed and that of Special Term affirmed. Brevoort v. City of Brooklyn. Opinion by Earl, J.

[Decided May 2, 1882.]

WITNESS - CODE OF CIVIL PROCEDURE, SECTION 829

DECEASED PARTY TO WHAT SURVIVOR MAY TESTIFY EXCLUSIVE OF PROPER TESTIMONY.—(1) The provision of section 829 of the Code of Civil Procedure prohibiting the examination of a party as a witness in his own behalf against the executor, etc., of a deceased person concerning a personal transaction, or communication between the witness and the deceased person is intended to prevent a surviving party from proving by his own testimony a personal transaction or communication between himself and a deceased person which but for the prohibition he might do without fear or possibility of contradiction. This prohibits the survivor from testifying that any particular communication or transaction did or did not take place between him and the deceased, but there the prohibi

tion ends. It does not preclude the survivor from testifying to extraneous facts or circumstances which tend to show that a witness who has testified affirmatively to such a transaction or communication has testified falsely, or that it is impossible that his statement can be true, as for instance, that the survivor was at the time absent from the country when the transaction is stated to have occurred. So long as the survivor refrains from testifying as to any thing that passed or did not pass personally between himself and the deceased, it is not a valid objection to his testimony that the facts which he states bear upon the issue whether or not the personal transaction in question took place, or upon the truth of the testimony by which such transaction is sought to be proved against him. Where a witness had testified on behalf of an administrator plaintiff, to a transaction which he alleged took place between the defendant and the intestate in his presence, held, that defendant was competent to testify that witness was not present at any transaction between him and intestate. Held, also that the fact that the interview between defendant and intestate did not take place in the room where the witness testified it did, but in another room, was an independent fact and defendant was competent to testify to it. (2) Where proper questions in relation to certain matters were excluded and the General Term held the exclusion erroneous, but affirmed the judgment on condition that the amount of recovery dependent on those matters should be deducted from the judgment, held, that this course would not be sustained as a precedent where it deprived the other party of any advantage he might have from a material contradiction of his opponent's witness. Judgment reversed. Pinney v. Orth. Opinion by Rapallo, J.; Earl and Danforth dissent as to the admissibility of certain parts of the testimony.

[Decided April 11, 1882.]

UNITED STATES SUPREME COURT ABSTRACT.

APPEAL WHEN IN TIME-TAKING SECURITY (FOR AND SIGNING CITATION ON ALLOWANCE.-Upon a motion to dismiss an appeal because not taken within two years after the entry of the decree, it appeared from the record that the decree was entered on the 2d of August, 1879, and on the same day the complainants prayed an appeal which was allowed upon their giving bond according to law. No bond was ever given under this allowance, and the case was not 'docketed here at the October term, 1879. On the 1st of August, 1881, the circuit judge approved a bond for an appeal from the decree and signed a citation. The bond was on the same day filed with the clerk and the citation served on the 18th of August. On the 8th of October the Circuit Court entered an order allowing the appeal nunc pro tunc as of August 1. The case was regularly docketed in this court on the 13th of October. Held, that the motion should be denied. The circuit judge, by taking the security and signing the citation, allowed an appeal. No formal order of allowance was necessary. Sage v. Railroad Company, 96 U. S. 714; Draper v. Davis, 102 id. 371. The appeal was therefore taken in time. The order of October 8 was not required to give it effect. Appeal from U. S. Circuit Ct., N. D. Illinois. Brandies v. Cochrane. Opinion by Waite, C. J.

[Decided March 13, 1882.]

APPEAL-SEPARATE DEMANDS AGAINST DIFFERENT PERSONS NOT TO BE UNITED TO GIVE THIS COURT

JURISDICTION.-Stansell, the appellee, obtained a decree in the Circuit Court of the United States for the Northern District of Mississippi in June, 1879, against

the levee board of Mississippi, District No. 1, for $71,623.67. This decree being unsatisfied, Stansell instituted summary proceedings in the same court under the provisions of the statute creating the levee board, to obtain an assessment and collection of the charge which was imposed on the lands in the district for its payment. An assessment was made upon several land-owners no one of whom was made liable for over $2,500. A petition to the Circuit Court for redress by the land-owners was dismissed and an appeal was taken to this court. Held, that the appeal would not lie, the amount for which each appellant was liable being less than $5,000. Under the rulings in Paving Co. v. Mulford, 100 U. S. 148; Seaver v. Bigelow, 5 Wall. 208; Rich v. Lambert, 12 How. 347; Stratton v. Jarvis, 8 Pet. 41, and Oliver v. Alexander, 6 id. 143, such distinct and separate interests cannot be united for the purpose of making up the amount necessary to give us jurisdiction on appeal. Although the amount due the appellee from the levee district exceeds five thousand dollars, his claim on the several owners of property is only for the sum assessed against them re spectively. Any owner can relieve himself and his property from all further liability for the district by paying his part of the assessment. Appeal from U. S. Circ. Ct., N. D. Mississippi, dismissed. Russell v. Stansell. Opinion by Waite, C. J. [Decided March 13, 1882.]

LAND PATENT OFFICERS OF LAND DEPARTMENT, IN ISSUING, ACT JUDICIALLY AND THEIR DECISION NOT COLLATERALLY IMPEACHABLE UNLESS VOID ON FACE.

In the exercise of their duty in issuing a patent for lands the officers of the Land Department in passing upon matters prescribed for their consideration exercise a judicial function. It has therefore been held in various instances by this court that their judgment as to matters of fact, properly determinable by them, is conclusive when brought to notice in a collateral proceeding. Their judgment in such cases is like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable except by a direct proceeding for its correction or annulment. The execution and record of the patent are the final acts of the officers of the government for the transfer of its title, and as they can be lawfully performed only after certain steps have been taken, that instrument duly signed, countersigned and sealed, not merely operates to pass the title, but is in the nature of an official declaration by that branch of the government to which the alienation of the public lands under the law is intrusted, that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action at law. See Polk's Lessee v. Wendell, 9 Cranch, 87; Patterson v. Winn, 11 Wheat. 99, where the rule and its exceptions are stated. The doctrine declared in these cases as to the presumptions attending a patent has been uniformly followed by this court. The exceptions mentioned have also been regarded as sound, although from the general language used some of them may require explanation to understand fully their import. If the patent according to the doctrine be absolutely void on its face, it may be collaterally impeached in a court of law. It is seldom however that the recitals of a patent will nullify its granting clause, as for instance, that the land which it purports to convey is reserved from sale. Of course should such inconsistency appear the grant would fail. Something more however than an apparent contradiction in its terms is meant when one speaks of a patent being void on its face. It is meant that the patent is seen to be invalid either when read in the light of existing law or by reason of what the court must take judicial notice of, as for instance, that the land is reserved by statute from sale or otherwise appropriated, or that the

patent is for an unauthorized amount or is executed by officers who are not intrusted by law with the power to issue grants of portions of the public domain. So also according to the doctrine in the cases cited if the patent be issued without authority, it may be collaterally impeached in a court of law. This exception is subject to the qualification that when the authority depends upon the existence of particular facts, or upon the performance of certain antecedent acts, and it is the duty of the land department to ascertain whether the facts exist, or the acts have been performed, its determination is as conclusive of the existence of the authority against any collateral attack, as is its determination upon any other matter properly submitted to its decision. With these explanations of the exceptions, the doctrine of the cases cited may be taken as expressing the law accepted by this court since they were decided. Hoofnagle v. Anderson, 7 Wheaton, 212; Boardmam v. Reed, 6 Pet. 342; Bagnell v. Broderick, 13 id. 448; Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 535. The general doctrine declared may be stated in a different form, thus: A patent, in a court of law, is conclusive as to all matters properly determinable by the land department, when its action is within the scope of its authority, that is, when it has jurisdiction under the law to convey the land. In that court the patent is unassailable for mere errors of judgment. Indeed, the doctrine as to the regularity and validity of its acts, where it has jurisdiction, goes so far, that if in any circumstances under existing law a patent would be held valid it will be presumed that such circumstances existed. Thus in Minter v. Crommelin, 18 How. 299, where it appeared that an act of Congress of 1815 had provided that no land reserved to a Creek warrior should be offered for sale by an officer of the land department unless specifically directed by the Secretary of the Treasury, and declared that if the Indian abandoned the reserved land it should become forfeited to the United States, a patent was issued for the land which did not show that the Secretary had ordered it to be sold, and the court said: "The rule being that the patent is evidence that all previous steps had been regularly taken to justify making a patent, and one of the necessary steps here being an order from the Secretary to the register to offer the land for sale because the warrior had abandoned it, we are bound to presume that the order was given. That such is the effect as evidence of the patent produced by the plaintiffs, was adjudged in the case of Bagnell v. Broderick, 13 Pet. 45, and is not open to controversy anywhere, and the State court was mistaken in holding otherwise." On the other hand, a patent may be collaterally impeached in any action, and its operation as a conveyance defeated by showing that the department had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved from sale or dedicated to special purposes, or had been previously transferred to others. tablishing any of these particulars the judgment of the department upon matters properly before it is not assailed, nor is the regularity of its proceedings called into question; but its authority to act at all is denied and should never have existed. Judgment of U. S. Cir. Ct., Colorado reversed. St. Louis Smelting and Refining Co. v. Kemp. Opinion by Field, J. [Decided March 6, 1882.]

In es

STATUTORY CONSTRUCTION NATURAL SENSE OF WORDS ADOPTED.-It is the duty of the court to read a statute according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending its operation. Waller v. Harris, 20 Wend. 561; Pott v. Arthur, decided at the present term. When the language is plain it has no right to insert words and phrases, so as to incorporate in the statute

a new and distinct provision. Judgment of Court of Claims affirmed. United States v. Temple. Opinion by Woods, J.

[Decided March 13, 1882.]

NEW HAMPSHRE SUPREME COURT ABSTRACT.*

CARRIER — UNAUTHORIZED DELIVERY — RATIFICATION. A common carrier's unauthorized delivery of goods may be ratified by the consignee. The plaintiffs contracted to furnish C. a certain quantity of slate to be delivered at F., which they subsequently delivered to the defendants to be transported to F. directed to themselves. On their arrival they were delivered to C. by the defendants' agent. The plaintiffs thereupon brought a suit against C. to collect pay for the slate. C. gave them an order on D.; and they gave C. a receipted bill of the slate, and allowed him to use them. The order was not accepted or paid, and the suit was entered and continued to the third term. Four months after the suit was brought against C. the plaintiffs brought this suit. Held, that the delivery to C. was ratified, and that the plaintiffs could not recover of the defendants. Converse v. Boston & Maine Railroad Co. Opinion by Stanley, J.

BY

EVIDENCE-EXPERT IN ACTION FOR INJURY ANIMAL. In an action for injury by the bite of a dog held, that a witness not an expert who saw the wounded person may describe the wound as inflamed and tender to the touch, and may testify that he complained of stiffness in the fingers and in the neck and jaws, and that since the injury he had observed that the person injured could not use his arm as he could before. Perkius v. Railroad Co., 44 N. H. 223; Howe v. Plainfield, 41 id. 135; Spear v. Richardson, 34 id. 428. Craig v. Gerrish. Opinion by Stanley, J.

INTEREST -IN ACTION FOR TORT WHERE DELAY BY FAULT OF CREDITOR.-In actions of tort the plaintiff is generally not entitled to interest on his damages when he refused before suit to accept for damages a sum larger than he recovered. In the case of liquidated damages the rule in this State is that if the defendant did all that was required to make amends without delay and the fault was that of the plaintiff, he will not be entitled to interest as damages. If the detention occurs through the fault of the creditor, and not that of the debtor, no interest is allowed. Heywood v. Hartshorn, 55 N. II. 476; Otis v. Barton, 10 id. 433; Goff v. Rehoboth, 2 Cush. 475; Bank v. Bank, 5 Pick. 106. In actions of tort the same rule may generally be applied, and ordinarily the right to interest may be made to depend upon the cause of the delay. Walrath v. Redfield, 18 N. Y. 457; Sedgwick on Dam. 385; Parrott v. Ice Co., 46 N. Y. 361; Schwerin v. McKie, 51 id. 180. Thompson v. Boston & Maine Railroad Co. Opinion by Bingham, J.

PRACTICE NEW TRIAL-IMMATERIAL- ERRONEOUS EVIDENCE.-If in the trial of a cause incompetent evidence is received upon point that is subsequently admitted or proved by the opposite party, it furnishes no ground for a new trial. Foye v. Leighton, 24 N. H. 29; Wiggin v. Damrell, 4 id. 74; Knowles v. Dow, 22 id. 387; Morrill v. Richey, 18 id. 295. Rowell v. Boston & Maine Railroad Co. Opinion by Bingham, J.

GEORGIA SUPREME COURT ABSTRACT. CONFLICT OF LAW -ACTION FOR NEGLIGENCE APPLICATION OF LAW OF ANOTHER STATE, IF NO STATUTE COMMON LAW PREVAILS. - In an action

* To appear in 58 New Hampshire Reports.

brought in Georgia for personal injury occurring in South Carolina, held, that assuming that the law of the place of the hurt is the law of the case, the law of South Carolina and not of Georgia will be applied by the courts of Georgia to the cause when tried in this State, except in so far as mere modes of procedure and practice are concerned. There being no statute regulating the rights of parties in such cases in South Carolina and the common law prevailing there, the courts here in a liberal spirit ef comity will apply the construction of the common law in that State by its highest judicial tribunal to the facts of the pending case. Atlanta and Charlotte Air Line Railway Co. v. Turner. Opinion by Jackson, C. J.

[Decided April 20, 1882.]

EVIDENCE-BOOKS OF ACCOUNT OF FACTORS ARE OF LARGE ADVANCES TO CUSTOMERS DAMAGES FOR CON

VERSION.- (1) Though the rule that books of a merchant whose usual and customary business is the sale of goods and merchandise, are not evidence of considerable cash items charged (64 Ga. 243), is recognized as correct, yet this court is not inclined to extend the rule so as to include books of factors and commission merchants whose ordinary business is to make cash advances to customers. (2) When A. sold to B. eightynine bales of cotton which B. sold to C. at an advanced price and when B. sought to deliver said cotton to C. it was found that A. had previously sold nineteen bales of the lot to another purchaser and B. was compelled to account to C. for the value of the nineteen bales at said advanced price, it was error to charge that A. should only account for the missing bales at the price at which he had sold them to B. with interest. B. should be indemnified for the amount he was forced to pay C. with interest from the time he paid it to C. Beal v. Rust. Opinion by Speer, J. [Decided Feb. 28, 1882.]

MASTER AND SERVANT -MASTER NOT LIABLE FOR NEGLIGENCE OF CO-SERVANT-WHAT DETERMINES MASTER'S LIABILITY.- (1) A master is not liable for damages to a servant resulting from the negligence of a fellow servant, unless he has been negligent in the selection of that servant or retained him after knowledge of his incompetency. Nor will the fact that the person proved incompetent of itself and without more show negligence of the master. (2) Where it is sought to make a proprietor or owner responsible, between whom and the employee injured there are intermediate contractors or sublessees, the main question is whether any duty remained which sprang from the proprietor's own position and from the violation of which by the proprietor the damage arose. Cresswell v. Pugh. Opinion by Speer, J.

[Decided Jan. 24, 1882.]

SLANDER The charge that another "used and embezzled money for his own wrongfulness, and I will prove it, and he is unfit to be the minister in our pulpit" are actionable per se. It contains the imputation of a debasing act which may exclude him from society, and also a charge calculated to injure him in his trade, office or profession. Franklin v. Browne. Opinion by Jackson, C. J. [Decided Jan. 31, 1882.]

-CHARGE OF EMBEZZLEMENT IS PER SE.

REAL ESTATE - FIXTURES - SHANTIES BUILT ON LAND BY TENANT.-Fixtures annexed to the freehold by the tenant may be severed therefrom by him and removed while he remains in possession of the demised premises; he may remove them notwithstanding the expiration of his term if he remains in possession of the premises under the lessor, but the possession must be held under a right still to be considered the tenant of the lessor. But where a tenant affixes shanties, etc., to the leased premises,

and after the expiration of his lease leaves them there, and the landlord re-enters and continues in possession for four months before the attempt is made to remove the fixtures, the tenant's right is lost. Youngblood v. Eubanks. Opinion by Speer, J. [Decided March 7, 1882.]

FINANCIAL LAW.

AGENCY -FORM OF INDORSEMENT BY AGENT OF CORPORATION.- An indorsement by the agent of a corporation simply in the name of the corporation is sufficient in form. It is competent and proper for au agent to sign simply the principal's name. The fact that the name was placed there by an agent need not appear upon the note. 1 Daniell, Neg. Inst., § 299; 1 Parsons, Not. & B. 91, 92; Brigham v. Peters, 1 Gray, 139; Bank v. Gay, 63 Mo. 33; Morse v. Green, 13 N. H. 32: Mechanics Bank v. Bank of Columbia, 5 Wheat. 326; Davidson v. Stauley, 2 Man. & G. 721. The fact that the indorsement purports to have been made by a corporation which could act only through agents is immaterial. In the absence of anything in the charter to the contrary, the general principles applicable in case of agents of a corporation are the same as in case of agents of a natural person. Minnesota Sup. Ct., Nov. 11, 1881. First National Bank of Rock Island v. Loyhed. Opinion by Mitchell, J.

AGENCY WHEN NOTICE OF ACTS OF AGENT TO LOAN IMPUTABLE TO PRINCIPAL AGENT TAKING USURY

COMMISSION ABOVE LEGAL INTEREST.-A loan agent who is required to learn the situation of the property given in security for money loaned, and examine and ascertain the title, and who is liable to the lender for any loss he may sustain for any mistakes made in examining the title, or from over-valuation of the property, is the agent of the lender in making the loan of money, notwithstanding he is to be paid for his services by the borrower alone. Where it is understood between a money-lender and a loan agent that the latter, in effecting a loan from the former, is to get his commissions from the borrower as compensation for his services in examining the title to the property given in security, etc., the lender will be chargeable with notice of the commissions paid to his agent, the same as if paid directly to him, and by him paid to the agent. And a commission taken by the agent above the highest legal rate of interest will render the transaction usurious. In Philo v. Butterfield, 3 Neb. 256, the court said: "In such business transactions by agency there cannot be an agreement between the lender, through the agent and borrower, and a separate, distinct contract between the agent and borrower, because it is in consideration loan of the that interest the unlawful bonus is paid, and hence the whole transaction must be a single indivisible proposition it is one contract only. And to the same effect are Cheney v. White, 5 Neb. 261, and Cheney v. Woodruff, 6 id. 151. In this last case, where the agent received from the borrower a note and mortgage for the bonus or commission for making the load, it was held that it tainted the loan with the vice of usury. The Court of Appeals in New York, by a divided court, lay down as a rule in such cases, that a bonus received by the agent above the legal rate of interest, without the knowledge, consent or sanction of the principal, and under circumstances where no such knowledge, sanction or consent can be reasonably inferred, will not render the contract usurious. Condit v. Baldwin, 21 N. Y. 219. The question was again before the court in Bell v. Day, 32 N. Y. 165, and the rule was sanctioned by a divided court, and partly on the rule of stare decisis. In Rogers v. Buckingham, 33 Coun. 81, where an

or

agent took an excess over the lawful rate, it is said that authority to take the excess will not be presumed when the agency is special and limited to a single transaction, but will be presumed where the agency is genera!. Illinois Sup. Ct., Nov. 10, 1881. Payne v. Newcomb. Opinion by Walker, J. (100 Ill. 611.)

BANK-PRESIDENT OF CONSTRUCTIVELY CHARGEABLE WITH NOTICE OF MANAGEMENT OF EVIDENCE

braska Sup. Ct., July 7, 1881. Nicholson v. Barnes. Opinion by Maxwell, C. J.

NEW YORK COURT OF APPEALS DECISIONS.

HE

a bank is chargeable with constructive notice of the management of its affairs by the cashier and other subordinate officers; and where such bank is doing business without legal organization he cannot escape the responsibility resulting from such notice by showing that he supposed himself the president of a legally constituted bank, if he has contributed the influence of his reputation to give undeserved credit to a spurious corporation. The liability of the ostensible president of a spurious bank for debts contracted by his assistance is not collateral, but direct and original, and he must respond in damages to the same extent as the bank, if legally constituted, would have been liable. United Society v. Underwood, 9 Bush, 609; Bank v. St. John, 25 Ala. 566; Bank v. Wulfekuhler, 19 Kan. 60. (2) Where the charge is a combination to defraud, the declarations of any one of the alleged confederates is evidence against the others, though made in the absence of the latter, if made in furtherance of the common design; and slight evidence of concert is sufficient to let in such declarations. North Carolina Sup. Ct., October term, 1881. Hanser v. McTate. Opinion by Smith, C. J. (85 N. C. 81).

NEGOTIABLE INSTRUMENT-INDORSEMENT-DEMAND TO CHARGE INDORSER.-A note dated at Grand Island, Nebraska, and payable at no particular place, was signed by the maker who added to his name "Dunebrog Howard Co." In an action against the indorser the only allegation as to presentment for payment was that on the day and date when said note became due said plaintiff made diligent search and inquiry throughout the entire town of Grand Island for the maker of said note, but was wholly unable to find him or learn of his whereabouts. It is also alleged that the note was presented to the several banking houses in Grand Island for payment and payment thereof was refused, and that no part of the same has been paid, etc. Held not sufficient to charge the indorser. In Townsend v. Star Wagon Co., 10 Neb. 619, it is said: "The contract which the plaintiff in error entered into by indorsing said note was that if the same should be duly presented for payment to the makers at maturity either to them personally or at their residence or place of business and the same was not paid, and he should be duly notified of such presentation and non-payment, that then he would pay the money called for by the note together with legal costs of such demand and notification." The presumption is that the maker resides at the place where a note is dated, and that he contemplated payment at that place. 3 Kent Com., 97; Stewart v. Eden, 2 Cai. 127; Duncan v. McCullogh, 3 Serg. & R. 480; Lowery v. Scott, 24 Wend. 358. But it is a presumption merely; and if the maker resides elsewhere within the State when the note falls due and that place be known to the holder, demand must be made at the maker's place of residence. Anderson v. Drake, 14 Johns. 114; Galpin v. Hard, 3 McCord, 394. The reason is, the holder of a note is bound to use reasonable and proper diligence to find the maker and demand payment, where no particular place is designated for payment. The indorser undertakes conditionally to pay if the maker does not, and thus imposes on the holder the necessity of taking the proper steps to obtain payment from the maker. Ne

June 20, 1882.

Judgment reversed, new trial granted, costs to abide the event Clews v. The Bank of New York; The National Banking Association of Cleveland v. The New Jersey Steamboat Company; Mulcahy v. The Emigrant Industrial Savings Bank.-Judgment affirmed with costs Harrold v. The New York Elevated Kailroad Company; Leonard v. The City of Watertown; Pearlstrom v. Bennet; Anthony v. Day; The National Shoe and Leather Bank v. Herz.- -Order affirmed with costs Hoppam v. The Twenty-third Street Railway Company; Van Gelder v. Hallenback; In re The German Savings Bank v. Harrington; Pollard v. Brady.— Appeal dismissed with costs- In re the petition of Kuhne v. Daily; The National Shoe and Leather Bank v. The Mechanics' National Bank of Newark, N. J.; The Corn Exchange v. The Same; The West Side Bank v. The Mechanics' National Bank of Newark; McKenna v. Edmunstone; Lachemeyer v. Lachemeyer; Smith v. Mahon.- -Order affirmed on opinion below with costs Contes v. Fairchild.- Motion for reargument granted- The People ex rel. Ryan v. French.-Motion for reargument denied with $10 costs-Hoyt v. Godfrey; Douglas v. Haberstro.-Motion to amend remittitur to allow defendant to answer denied, with $10 costs-Brevoort v. The City of Brooklyn.—Motion to vacate order taken by default granted, without costs-Hauselt v. Godfrey, and several other cases.Motion denied - In re the Receivership of the Syracuse, etc., Railroad Company.- -Motion to open judgment taken by default. The appellant has leave to file his return within ten days from this date upon payment of $10 costs of opposing the motion, and all disbursements incurred by respondent from the time of and including the entry of the order of dismissal -Hussey v. Mayer.

N

NOTES.

N the current Biennial Report of the Chief Justice of the Supreme Court of the Sandwich Islands, we find several novel criminal offenses noted; for example selling cologne as a beverage, fishing with giant powder, playing truant from school, disobedience to parents, suppression of offenses, Hoomanamana, deserting parents, refusal to leave house.- When the Supreme Court of Pennsylvania remarked in a recent case that "we cannot understand how any one can have the face to say that there was no negligence, " etc., they show that they little understand the capacities of the legal profession. The American Law Register for June contains an article on Malicious Prosecution, and gives the following cases: Mitchell v. Homfray (Eng.), on gifts between persons in confidential relations, with note by Henry Wade Rogers; Miller v. Guerrard, (Ga.), on ownership of stock dividends as between lifetenant and remainderman, with note by Lawrence Lewis, Jr.; Norrington v. Wright (U. S. Circuit), ou rescission of severable contract, with note by Lucius S. Landreth; Smith v. Barclay (Ill. Superior), on property in membership in Board of Trade, with note by Marshall D. Ewell.