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modern extradition was both recognized and acted upon.

This construction of the tenth article of the treaty is consistent with its language and provisions, and is not only in harmony with the opinions and modern practice of the most enlightened nations of Europe, and just and proper in its application, but necessary to render it absolutely certain that the treaty cannot be converted into an instrument by which to obtain the custody and secure the punishment of political offenders. Hawes placed himself under the guardianship of the British laws, by becoming an inhabitant of Canada. We took him from the protection of those laws under a special agreement, and for certain named and designated purposes. To continue him in custody after the accomplishment of those purposes, and with the object of extending the criminal jurisdiction of our courts beyond the terms of the special agreement, would be a plain violation of the faith of the transaction, and a manifest disregard of the conditions of the extradition.

He is not entitled to personal immunity in consequence of his flight. We may yet try him under each and all of the indictments for embezzlement, and for uttering forged paper, if he comes voluntarily within the jurisdiction of our laws, or if we can reach him through the extradition clause of the Federal Constitution, or through the comity of a foreign government.

But we had no right to add to, or enlarge the conditions and lawful consequences of his extradition, nor to extend our special and limited right to hold him in custody to answer the three charges of forgery, for the purpose of trying him for offenses other than those for which he was extradited.

We conclude that the court below correctly refused to try Hawes for any of the offenses for which he stood indicted, except for the three charges of forgery mentioned in the warrant of extradition, and that it properly discharged him from custody.

The order appealed from is approved and affirmed.

STATUS OF THE PRODUCT OF EXEMPT PROPERTY.

SUPREME COURT OF NORTH CAROLINA, JANUARY TERM, 1878.

CITIZENS' NATIONAL BANK V. GREEN.

A homestead in land to the maximum value allowed by law had been allotted to G., who was insolvent. From the proceeds of a crop grown on the land he loaned his wife $300, with which she purchased other land, taking the deed in her own name Held, that the money advanced to the wife was still the husband's money and the land purchased therewith his, and that such land was not exempt from his debts.

The circumstance that property is the product of or increase from exempt property does not render it exempt. IVIL action tried at Wake Supreme Court. The facts appear in the opinion.

CIVIL

BYNUM, J. A homestead in land, to the maximum value allowed by law, had been duly allotted to the defendant, L. M. Green. A crop of cotton was then growing upon it, which, when matured and gathered, he sold, and of the proceeds undertook to lend $300 to his wife, who, with that sum and $200 more, which she procured from her sister, purchased the land in question, with the privity of her husband, and had the deed executed to herself. Is this land, or any part of

it, exempt from the debts of the husband? The husband and wife, both, were insolvent. The husband could not by law make the contract of loan to his wife; so the money advanced to the wife was still his money, and the case stands as if he himself had directly put that much cash into the purchase of the land; and so, also, a court of equity will treat the transaction, to the extent of his advances, as if the deed had been made directly to the husband.

It is not material to inquire whether the crop growing upon the homstead, at the time it was assigned, was valued as a part of the homestead; that does not distinctly appear, and we assume that it was not, and could not be, so estimated. Nor is it material to inquire whether a crop grown upon the homestead, after it has assumed the character of personal property, is exempt from the debts of the owner as to the excess above the exemption allowed by law. It is certain that the debtor is always entitled to the maximum of his personal exemption, and that by so much of this exemption as may be contained in producing a crop, by that much, may he be reimbursed out of the crop produced, so as to maintain the exemption to the maximum standard fixed by law. In respect to the homestead it has been held in other States, having similar laws, that if it should depreciate in value below $1,000 by the burning of the building upon it, a fall of prices, or other casualty, the owner would be entitled to a re-allotment out of any subsequently acquired land so as to bring the homestead up to the maximum. So, on the other hand, if the homestead should appreciate in value, by a rise in prices, the erection of costly buildings, or other improvements, the creditors would be entitled to a re-assignment and re-allotment, so as to reach the excess over the value fixed by law. It was so held in Illinois in the case of Haworth v. Travis et al., 67 Ill. 301, and in Stubblefield v. Graves et al., 50 id. 103, where the court put this case: "Suppose nine years ago a tract of land containing ten acres, part of a large tract near the city limits of Chicago, had been valued and set off as a homestead, it being then of the value of $1,000, and on the land the resident head of the family had erected costly buildings and improvements, by means of which, and the rise of property in that locality, its value should now greatly exceed $1,000, by what principle of law or justice could the claimant insist upon holding the land as a homestead when one-tenth of the tract would fully satisfy the homestead right?" * * "A debtor, being unable to pay his debts, has no right to a homestead of greater value than $1,000. By securing one to him of that value, his rights are satisfied and the requirements of the law fulfilled." To the same effect is 37 Cal. 175.

*

These authorities are cited to show what has been the construction of the courts upon similar homestead provisions in other States, and not as an expression of the opinion of this court upon a grave question which is not fully presented by the facts of this case.

The single proposition before us is, what is the status of the additional tract of land purchased by the husband, who already has a homestead of the maximum value allotted and set apart, by metes and bounds. The question must be determined by our own legislation; for, if it is exempt from the debts of the owner, it must be either by some constitutional or some statutory provision. We look in vain for either.

By art. 10, sec. 2, of the Constitution, it is provided: "That every homestead and the dwelling and buildings used therewith, not exceeding in value one thousand

dollars, * * * shall be exempt from sale under execution or other final process." By ch. 44, Bat. Rev., it is made the duty of the sheriff, having an execution in his hands, to levy upon all the property of the debtor, real and personal, except the homestead and personal exemption, as provided in the Constitution and statutes. And by ch. 55, Bat. Rev., it is provided, that whenever the real estate of any resident of the State shall be levied on by virtue of an execution or other final process obtained on any debt, the sheriff shall cause the homestead to be appraised and set apart, by metes and bounds, not exceeding in value one thousand dollars, and then to levy upon the excess. The language of the law is so plain, that there is no room for construction, and that is, that all the real estate of the debtor, except that which is specifically set apart as the homestead, is the subject of seizure and sale under an execution or other final process. No provision of the Constitution, or of the statutes supplementary thereto, furnishes the ground of a doubt; on the contrary, their legal effect is simply to protect the occupant in the enjoyment of the land set apart as a homestead, unmolested by his creditors. They make no provision and contemplate none for the owner, from the homestead, or any other source of income, to acquire additional lands and estates, which shall be protected from his debts, just as his homestead is secured. The courts cannot, by judicial legislation even, do so bold a thing as to confer new rights and exemptions, in the face of plain legislation by the lawmaking power.

It is urged in argument that a homestead having been secured to the debtor by law, all income derived from its user is merely an incident which follows their principal and belongs absolutely to him, and may be used either in improving the property, or in other investments; and that, unless this be so, the law rather discourages than invites improvements and enterprise, by cutting off all inducement to industry, the legitimate reward of which, when in excess of the exemption, would be seized and sold by the creditor. Such an argument should not be addressed to a court which cannot make, but only construe and administer the law as it is written. If worthy of consideration, it should be directed to the Legislature, as a reason for changing the law.

There is some misconception as to the nature of the homestead law. The homestead is not the creature of any new estate, vesting in the owner new rights of property. His dominion and power of disposition over it are precisely the same as before the assignment of homestead. The law is aimed at the creditor only, and it is upon him that all the restrictions are imposed, and the extent of these restrictions is the measure of the privilege secured to the debtor. And these restrictions imposed on the creditor are, that in seeking satisfaction of his debt he shall leave to the debtor, untouched, $500 of his personal, and $1,000 of his real estate. With his limitation upon the rights of the creditor it is manifest that all the obligations of the debtor to pay his debts, and all his rights to acquire and dispose of property, are the same after as before the assignment of homestead. The homestead has been called a determinable fee, but as we have seen that no new estate has been conferred upon the owner, and no limitation upon his old estate imposed, it is obvious that it would be more correct to say that there is conferred upon him a determinable exemption from payment of his debts in respect to the particular prop

erty allotted to him. By the recent act of the Legislature (Laws of 1876-'7, ch. 253), this determinable exemption has been extended into a fee simple, and the homestead is now forever exempted from all liability for the debts of the owner, contracted after the ratification of the act, if the act be constitutional. In the face of this, it is still insisted, that all after-acquired property derived from the income of the homestead, is exempt from the debts of the owner. Suppose A has had assigned to him his homestead and personal exemption, and by good management, he has acquired other lands of the value of $5,000. It is asked, why should not these acquisitions belong to him, as the natural fruit and product of the exempted property? The answer is, they do, undoubtedly. No one disputes that proposition; on the contrary, it is the very proposition we affirm. All such property does belong to him, absolutely; and with it he may buy and furnish fine houses, have his carriage and horses and supply his table with the costliest luxuries. But when he refuses to pay his butcher, the latter might well exclaim,

"Upon what meat doth this, our Cæsar, feed,
That he has grown so great?"

As in respect to land so as to the personal exemption. Suppose B has had assigned to him, as a part thereof, stock, cattle, or brood mares, it is again asked do not the increase belong to the owner of the dam? Undoubtedly. Partus sequitur ventrem, and he may increase the stock, by continued production and reproduction, to an unlimited extent and value, and it would still be all his, absolutely. But the question is, what sanctity distinguishes and protects this new wealth, which is not equally vouchsafed to the same kind of property belonging to other men?

Again. Suppose “A," having accumulated out of the homestead, other land of the value of $10,000, dies, leaving a child. Under the law of 1876–77 this land would descend as homestead, and all the additions made to it by the heir would also be homestead, and so ad infinitum, exempt from the debts of all the propri

etors.

If the construction of the law should be, that all acquisitions of property are exempt from execution, it would be the interest of all men at once to take the benefit of the homestead, as well the rich as the poor, for thereby all income derived from it could be capitalized and recapitalized from that one nucleus to the building up of colossal fortunes, in defiance of debts, past or future. And what a door would be open to frauds and perjuries, as each owner of a homestead would be tempted to allege and establish that all his estate, no difference how acquired, was but the increasement of his own or the homestead of some remote ancestor. It would be a fruitless endeavor in the creditor to investigate and sift out, and separate the homestead from the non-homestead property thus confused and confounded. In the progress of time. of course, such intricate and perplexing investigations must pass from the hands of creditors and attorneys to those of the antiquarian, until all credit perished.

Such a construction would come in direct conflict with the law, for by it only past debts are discharged, while by the homestead law both past and future debts would be practically discharged. The bankrupt's future acquisitions are liable for future debts, while those of the owner of the homestead would not be; and one result of the anomaly would be to transfer the collection of all foreign claims from State to Federal

courts, where a law so plainly impairing the obliga-
tions of contracts would not be recognized. Such,
however, is not the proper construction of the home-
stead law in this State or any other of our sister
States. It is a mistake to suppose the exemption laws
are something new in North Carolina, or that their
construction has not long been settled. The present
law differs in no material respect from that enacted
as early as 1773, except that it is more enlarged and ex-
tends to lands as well as personal property. By that
law, amended and enlarged in its operations from time
to time, as finally embodied in Rev. Code, ch. 45, §§ 7,
8 and 9, certain property was exempted from sale
under execution, such as a limited quantity of pro-
visions, household articles, cow and calf, etc. It was
never held, that we are aware, that the increase de-
rived from these exemptions, as, for example, a stock
of cattle raised from the cow and calf, was exempt
from execution. And in order that the allotment
might be perpetuated for the protection of both
debtor and creditor, commissioners were appointed to
lay off and assign to the debtor such property as he
was entitled to under the act, and a list thereof was
required to be made out and filed among the records
of the County Court. Such proceedings are substan-
tially required under the present homestead laws, yet
no one supposed that under the old law the debtor was
entitled to any thing more than was thus set apart.
The rule of law then was, and we think now is, that
all of a man's property was and is held subject to the
payment of his debts except in so far and to the extent
only that it has been specifically exempted. The
practical working of this law is not always without its
difficulties; as, for instance, where the value of the
homestead and personal exemptions may have been
increased by buildings, the rise of value, or successful
crops, or have been diminished in value by opposite
causes. Our case is not one of that kind, and demands
of us no opinion of what would be the rule of adjust-
ment and liability in such cases, and we give none.
Cases of the kind will not be frequent where the excess
over the maximum allowance will be so clear and pal-
pable as to provoke litigation on the part of the cred-
itor; and where such cases do occur, they must be
adjusted by the good sense of the parties, or, like all
other irreconcilable differences, by the arbitrament of
the law. It is not from a construction of the law, at
once just to the creditor and debtor, that the latter
has cause of apprehension. His danger is in another
direction, the frail and evanescent tenure of the
homestead itself. Though bestowed it is not pre-
served to him. The benevolent purpose of its creation
was to save the improvident and their families from
the consequences of their improvidence. It is mani-
fest that this purpose fails, and that there is an incon-
gruity between the object and end, so long as the
debtor is allowed, first to incumber and next to part
with what was intended as a provision for himself and
family. It cannot be disputed that real and chattel
mortgages, liens and incumbrances of all kinds, to an
unparalleled extent, now cover a large portion of the
real and personal property of the State, and that they
are generally confined to that class of our population
which is theoretically supposed to be enjoying the ben-
efit of the homestead laws. It is not so much the
excess over the legal exemptions that needs protection,
for there is but little of it, but it is the homestead
itself that needs protection. Exemption laws, without
diminishing the need of credit, have naturally made it

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more precarious and insecure, and as a result have proportionately increased the premium which must be paid for it, so that at few periods of our history, has interest been higher, or borrowed money less remunerative than now, and at no former period has the debtor class been more under the dominion of the merchant, grocer, and capitalist. From the conditions of things, as society is organized, the poor, the needy, and the improvident, will borrow if they can, and will not hesitate to sell or incumber their homestead upon ruinous terms, and the beneficent intentions of the law, for their benefit, are thus defeated. Whether this result has proceeded from insufficient or misguided legislation, from the habits of the people, or from a combination of all these causes, will admit of different opinions, as men view the situation from a moral or political standpoint.

In respect to the case before us, it remains for the court to declare its opinion to be that by the unambiguous words of the Constitution and laws pursuant thereto, the defendant, L. M. Green, is entitled to no other land exempt from his debts, than the homestead which has been appraised and set apart to him. And in the language of a great judge upon the construction of the statutes: "It is the duty of all courts to confine themselves to the words of the Legislature, nothing adding thereto, nothing diminishing." The consequences if evil can only be avoided by a change of the law itself, and not by judicial action. Sedgwick on Stat. and Const. Law, 205 to 220.

The exceptions to the evidence excluded, taken by the defendant, are untenable, and the rulings of the court below are sustained. There is no error.

Judgment affirmed.

Rodman, J., dissented.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF WISCONSIN,* APRIL, 1878.

CONTRACT.

Security given upon compounding crime void: compounding offenses against revenue law. -The Federal statute which authorizes the commissioner of internal revenue, with consent of the secretary of the treasury,to compromise any civil or criminal case under the interual revenue laws, instead of commencing suit thereon, and, with like consent, under the recommendation of the attorney-general, to compromise any such case after suit commenced thereon (R. S. of U. S., § 3229) being, in the judgment of this court, essentially immoral, so far as it authorizes a compounding of crimes, any collateral contract, looking toward, in aid of, or subordinate to, such an agreement to compound a crime, under that statute, will not be enforced in the courts of this State. Wright v. Rindskopf.

CORPORATION.

1. Act of, in excess of powers: ratification.-Where a loan by a corporation can only be regularly authorized by a vote of the directors at an official meeting, a loan made without such vote may be ratified by the corporation; an action by the corporation upon the securities given for the loan is a ratification; and an averment in such action that the loan was made by

*From O. M. Conover, Esq., State Reporter. To appear in 43 Wisconsin Reports.

66

plaintiff 'through its proper officers" is sufficient. Germantown Farmers' Mut. Ins. Co. v. Dhein.

2. Securities for loan by corporation given in name of directors. Where securities given for a loan made by a corporation run to persons named, as its directors, and their successors in office, the corporation may sue thereon, as owner and holder, without reformation of the instruments, and without formal assignment to it. (Supervisors v. Hall, 42 Wis.59.) Ib.

3. When contract in excess of powers valid.-While contracts of corporations which they have no authority to make may be void, contracts which are within the general scope of their powers, but which are in excess of those powers in some particulars, are valid, unless, by reason of such excess, they are against public policy. Rock River Bank v. Sherwood, 10 Wis. 230, approved and followed. Thus, the plaintiff corporation having exceeded its power in loaning money for two years, instead of one, and taking a note and mortgage therefor instead of a bond and mortgage (P. & L. Laws of 1857, chap. 331, $3); and the contract not being immoral, and not against public policy, no penalty being attached to it, plaintiff may maintain an action upon the securities. Ib.

CRIMINAL LAW.

1. Jury trial of indictment cannot be waived.-Upon a plea of "not guilty" to an information or indictment for crime, whether felony or misdemeanor, the right of the accused to a trial by jury cannot be waived; and a trial by the court alone will not support either a judgment or a report to this court (under the statute) of questions of law arising in the case. State v. Lockwood.

2. Patent notes: statute relating to, invalid.-Chapter 140, of 1872, requires every person taking a promissory note or other written obligation, any part of the consideration of which is a patent right, etc., etc., to cause to be inserted in the body thereof the words "given for a patent right," and punishes a violation of the act as a misdemeanor. It seems that this court would be disposed to hold, if the question were properly before it, that the act is void as an invasion of Federal authority. Ib.

FIRE INSURANCE.

1. Wisconsin statutes relating to valuation: valuation stated in policy conclusive.--Chapter 347, of 1874, provides that where real property, in this State, insured against fire, shall be totally destroyed by fire without criminal fault of the assured, the amount of insurance written in the policy "shall be taken and deemed to be the true value of the property at the time of such loss, and the amount of the loss sustained," and as the measure of damages. Held, that, in an action upon a policy issued since the statute took effect, in a case coming within its terms, the amount of insurance written in the policy is conclusive as to the amount of the damages (if any) for which the insurer is liable by reason of the loss. Reilly v. Franklin Ins. Co. of St. Louis.

2. Effect of statute not avoided by stipulation.-As the statute rests upon grounds of public policy, the conclusive effect of the amount of insurance written in the policy upon the measure of damages is not altered by a stipulation in the same instrument that the damage should be established "according to the true and actual cash marketable value" of the property when the loss happened. Ib.

RECENT BANKRUPTCY DECISIONS.
ADJUDICATION.

1. Who may oppose: attachment creditor.- A creditor who, prior to the filing of the petition, has obtained a lien upon the property of the alleged bankrupt by process of mesne attachment, is entitled to intervene and oppose an adjudication. U. S. Dist. Ct., New York. In re Burton & Watson, 17 Nat. Bankr. Reg. 212.

2. Non-resident of United States.-The court has no power, in involuntary proceedings, to adjudicate any person a bankrupt who was not a resident of the United States at the time of the filing of the petition, although such person may have carried on business within the district for the requisite period. Ib.

3. Involuntary proceedings were commenced against B. and W., who were doing business in New York. B. was a resident of Canada. Held, that an adjudication could be granted against W. alone. Ib.

COMPOSITION.

What creditors may not vote as to.-Creditors are not entitled to vote upon proposals for composition without having first proved their debts. U. S. Dist. Ct., N. D. Indiana. In re Mathers & Moffit, 17 Nat. Bankr. Reg. 225.

CREDITOR.

Secured creditor, when not counted under § 39.-So long as a creditor holds ample security on property of the debtor, and does not waive or release the same, he is not to be counted as a creditor having a provable debt within the meaning of section 39 as amended. R. S., § 5021. A secured creditor may, at any time, release his security as to the whole or a part of the debt, and if he does so seasonably, before the hearing and decision as to the quorum of creditors and debts, he is entitled to be ranked as a creditor having a provable debt and admitted as such in determining whether the requisite number and amount have joined in the petition.. U. S. Dist. Ct., W. D. Michigan. In re Crossette & Graves, 17 Nat. Bankr. Reg. 208.

STATE INSOLVENT LAWS.

Bankrupt law has not superseded: compulsory proeeedings under.- The Bankrupt Act has not entirely superseded the State insolvent laws. Where an insolvent debtor refuses to file a voluntary petition, and has committed no act of bankruptcy, and it does not appear that the requisite number of creditors are ready to join in a petition against him, compulsory proceedings by a creditor under a State insolvent law are not prohibited by the Bankrupt Act. Court of Errors, Connecticut. Geery's Appeal, 17 Nat. Bankr. Reg. 196.

MISTAKE.

Clerical error: omission of creditors.-A mere clerical mistake occurring in the proceedings in bankruptcy, though resulting in a failure to specially notify a creditor, will not destroy the effect of the proceedings as regards such creditor. In the absence of fraud, the general advertisement, as provided by section 11, is sufficient to include all creditors. Sup. Ct., Missouri. Thornton v. Hogan, 17 Nat. Bankr. Reg. 277.

MORTGAGE.

Creditors holding and selling at auction: when not entitled to vote for assignee.-After the adjudication, a creditor, who held a mortgage for fifteen thousand

dollars on the bankrupt's real estate, had it sold at public auction and purchased it himself for one hundred and forty-two dollars and fifty cents. He then proved for the residue of the mortgage as an unsecured claim at the first meeting of the creditors. The register allowed the proof against objections and permitted him to vote for assignee, whereby a majority in value of the creditors was obtained. Held, that no such mode of ascertaining the value of mortgage security is recognized by the Bankrupt Act; that the register had no authority to admit the proof and allow the vote against objection, and that the choice of the assignee under such circumstances was irregular. U. S. Dist. Ct., New Jersey. In re Hunt, 17 Nat. Bankr. Reg. 205.

COURT OF APPEALS ABSTRACT.

ATTORNEY AND CLIENT.

Action against attorney for negligence: what will not sustain.-In an action against his attorneys for alleged misconduct and negligence in the management of a suit brought by them for plaintiff against one W. in failing, before judgment, to secure a lien upon the property of W., there was no allegation or proof that they could have either filed a lis pendens, or procured an attachment, or that there was ground for an order of arrest, attachment or a lis pendens. Held, that plaintiff was not entitled to sustain his action, that a nonsuit would have been proper, and that a verdict for defendants could not be set aside. Judgment below affirmed. Jaquins v. Hagner. Opinion by Earl, J.

[Decided February 5, 1878.]

CONSTITUTIONAL LAW.

General Drainage Act of 1869, constitutional.-The General Drainage Act of 1869 (chap. 888) is not open to the constitutional objection that it does not provide for a public purpose, for the purpose mentioned namely, the public health is one, nor to the objection that it takes private property without due process of law, for it provides for proper and sufficient proceedings for the taking of property. Orders below affirmed. In re Ryers. Opinion by Folger, J. Church, C. J., dissented.

[Decided January 15, 1878. Reported below, 10 Hun, 93.]

CORPORATION.

Liability of stockholders: enforcement of: form of action.-Under a statute of New Jersey it is provided that, "when the whole capital of a corporation shall not be paid in, and the capital paid shall not be sufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay, on each share held by him, the sum necessary to complete the amount of such share as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the company." This is similar to the statute of this State. 1 R. S. 600, § 5. Held, that under this statute there could not be a recovery by a single creditor against a single stockholder, but the action must, to charge the stockholder who had not fully paid up, be in equity, bringing in the other stockholders in like predicament with him. Judgment below affirmed. Griffith v. Mangam. Opinion by Folger, J.

[Decided April 16, 1878. Reported below, 42 N. Y. Superior, 369.]

CRIMINAL LAW.

de

1. Burglary: ownership of premises entered : scription of, in indictment.—In an indictment for burglary, in the first degree, in breaking into and entering in the night time the dwelling-house of another, etc., the ownership of the dwelling-house may be laid to be in the members of a copartnership, when the facts of the case warrant it. When the members of a firm held and occupied the building into which the burglarious entry was made, using the lower story for the purposes of their business, and in the upper rooms one, only, of the partners, and some other persons lived, and were present the night of the burglary. Held, that it was proper, in the indictment, to lay the ownership of the building in the members of the firm. Judgment below affirmed. Quinn, plaintiff in error, v. People. Opinion by Folger, J. Rapallo and Andrews, JJ., dissented.

2. What constitutes a dwelling-house: store with unconnected rooms used for living purposes in upper story of same building.-The burglary was into one of the lower rooms of the building which were used for a store. The upper part of the building used for living purposes, and where people slept had no internal communication with the store below, but to go from one part to the other, one must go out doors. Held, that the room broken into was part of a dwelling-house, within the definition of burglary, in the first degree, in 2 R. S. 668, § 10, subd. 1, and § 16. Ib. [Decided January 15, 1878. Reported below, 11 Hun. 336.1

EVIDENCE.

Evidence to contradict: what competent.-A witness for the plaintiff had testified that defendant had said, in reference to a piano which was in controversy, that he had given it to plaintiff, for a present. The witness testified that she thought that one A was present at the conversation. A, being sworn for defendant, said he was never present at any such conversation, He was then asked, on cross-examination, if, and denied that he had told one D that defendant had told him that he had given the piano to plaintiff. D was then called, for plaintiff, and testified that A had told him that defendant had told him that he had given the piano to plaintiff. Held, that the testimony of the latter witness was admissible to contradict A. Judgment below affirmed. Sparrowhawk v. Sparrowhawk. Opinion by Miller, J. Allen, Folger and Earl, JJ., sented. [Decided March 19, 1878. Reported below, 11 Hun, 528.]

JURISDICTION.

dis

Judicial officer interested in result of proceeding: when competent to act. -Where a judicial officer has not so direct an interest in the cause or matter that the result must necessarily affect him to his personal or pecuniary loss or gain, or where his personal or pecuniary interest is minute and he has so exclusive jurisdiction of the matter by constitution or by statute, that his refusal to act will prevent [any proceeding in it, there he may act so far as that there may not be a failure of remedy or a failure of justice. Accordingly where the county judge who is exclusively designated under the General Drainage Act to appoint commissioners, whose duty it is to determine what lands are to be taken for a proposed drain, and what property benefited, and the amount of the assessment upon the lands of each owner, was the owner of some of the lands to be affect

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