the certificate prescribed by that statute, if a married woman carries on a farm for the support of her family, or her husband's family, she is following a separate business which requires the designated certificate for the protection of the personal property employed in it from liability to the husband's debts. Chapman v. Foster, 6 Allen, 138; Ferau v. Rudelphsen, 106 Mass. 491. Opinion by AMES, J.-Snow v. Sheldon.

SUPREME COURT OF INDIANA.

November Term, 1878.

EVIDENCE-DEPOSITIONS -WEIGHT OF.- On the trial of this case, the court gave the following instructions to the jury: "In weighing the evidence of witnesses you are to look on their means of knowledge, and at their honesty in the light of all the corroborating and surrounding facts and circumstances in the case; and in this connection you have a right to look at the appearance of the witnessses upon the stand, and because of this, other things being equal in regard to witnesses, the testimony of those examined in open court is entitled to greater weight than the testimony of witnesses embodied in depositions." This instruction can not be sustained. In many cases the testimony of a witness orally given is much more likely to make a decided impression upon the jury than if communicated in the form of a deposition. In other cases, the deposition of witnesses would be more likely to make a favorable impression on the jury then if such witnesses had testified orally before the jury, depending in every case upon the intelligence, the peculiarities, the general appearance and all other circumstances attending each particular witness. These are matters about which the laws lays down no general or inexorable rule. They constitute facts for the consideration of the jury in every case in which such questions may arise. The case of Coner v. Louthain, 38 Ind. 530, is overruled, so far as inconsistent with this opinion. Reversed. Opinion by NIBLACK, J.-Milner v. Eglin.

EVIDENCE-BURDEN OF PROOF-RIGHTS OF COURT AND JURY. This was an action by The Witness Printing Company against Moss and others upon a contract to furnish 500 subscribers to the paper published by said company or pay $750, in consideration of the paper being conducted in the interest of the Greenback party. There was a trial by jury and a verdict for the plaintiff. It is insisted that the verdict was not sustained by sufficient evidence, because no evidence was offered to show that the paper had been conducted in accordance with the interest of the Greenback party. Held, that if the plaintiff's newspaper was not in fact conducted in the manner contracted for, this would have been a failure of consideration, partial or complete, and was strictly matter of defense to be shown by the defendants. It was the province and duty of the court to construe the written contract and instruct the jury as to its legal effect. Under the evidence, the court could not well have done otherwise than instruct the jury to return a verdict for the plaintiff. This was not usurping the province of the jury, but was simply a discharge of duty by the court. Affirmed. Opinion by Howк, C. J.-Moss v. Witness Printing Co.

corporation in such county void. But if suit is brought on such note, such fact may be pleaded in abatement of the action. Congress has the power to provide for the incorporation of a private corporation within the District of Columbia only, and a corporation so created is a "foreign corporation," within the meaning of the above act. One act may be repealed by another by implication when the latter act is clearly in conflict with the provisions of the older statute. In such case, the latter act repeals the older one, so far as the conflict between the two statutes extends. The act of 1865, so far as it relates to insurance companies "incorporated by any other State than Indiana," and to insurance companies "incorporated by any government foreign to the United States," repeals the act of 1852, so far as the said act relates to such classes of companies, but no farther. It does not apply to corporations created by Congress, within and for the District of Columbia: such corporations are still governed by the act of 1852. BIDDLE, J., disssented from so much of the opinion as holds that a corporation created by act of Congress, within and for the District of Columbia, is a foreign corporation, within the meaning of the statute, and held that the act of 1865 repealed that of 1852, in relation to all insurance companies. Opinion by Howk, C. J.-Daly v. National Life Ins. Co.

POWER OF LEGISLATURE TO LEGALIZE VOID ACTS -SUIT PENDING IN COURT.-Action by appellant to enjoin the collection of certain taxes assessed against its property by appellee. The proceedings which led to the levy and assessment of the taxes did not conform strictly to the requirements of the statute as was necessary to make them legal, and the taxes assessed were illegal and void. This action was commenced in the circuit court on November 7, 1876, but the amended complaint was not filed until February 6, 1877. On the 3d day of February. 1877, the legislature passed an act to legalize the action of the board of commissioners, complained of by appellant. What effect should such curative act have upon the proper decision of this case? Howк, C. J., said: "The legislature, in the passage of the statute above cited, invaded and exercised the functions of the judicial department of our State government, and for this reason the act must be held unconstitutional and void. The general assembly made a special finding in and by the preamble to the act, of matters of fact, and upon such finding, adjudged and declared that the acts of the appellee were thereby legalized. It was not within the power of the general assembly to thus legalize the illegal and void proceedings of the commissioners of Grant county. The record shows that on the 29th day of November, 1876, the court below overruled the appellee's demurrer to the complaint. After the passage of the curative statute the court sustained the demurrer. Here was the 'arbitrary will of the legislature,' controlling the action of the court before which the suit was pending. It was not within the power of the legisla ture, by a special act directed to a particular case then pending before the courts, to change the decision of that case. Special legislation on such subject is prohibited by sections 22 and 23 of of the fourth article of the constitution. 19 Ill. 226; 2 Allen, 361; 16 Penn. St. 256, 258; Cooley's Const. Lim. 3d ed. 106. Reversed." Columbus, etc. R. Co. v. Commrs, Grant Co.

COURT OF APPEALS OF MARYLAND.

[From advance sheets of 43 M 1.]

ATTORNEYS POWER OF STATE TO REGULATE ADMISSION OF, NOT AFFECTED BY FOURTEENTH AMENDMENT.-1. Under sec. 3, of the act of 1876, ch. 264, the privilege of admission as an attorney in the

courts of this State is limited to white male citizens above the age of twenty-one years. 2. The limitation to the privilege of admission as an attorney in the courts of this State, as provided by sec. 3, of the act of 1867, ch. 264, is not repuguant to the fourteenth amendment of the Constitution of the United States. 3. The privilege of admission to the office of an attorney is not a right or immunity belonging to the citizen, within the meaning of the fourteenth amendment of the Constitution of the United States, but is governed and regulated by the legislature, who may prescribe the qualifications required and designate the class of persons who may be admitted. 4. The power of regulating the admissions of attorneys in the courts of a State, is one belonging to the State and not to the Federal government. Opinion by BARTOL, C. J.-In re Taylor.

WHEN OFFER BY PARTY TO PENDING CONTROVERSY NOT EVIDENCE AGAINST HIM-ADMISSIONS BY A PARTY TO PENDING CONTROVERSY BEFORE ARBITRATORS, ADMISSIBLE.-1. Where there has been an offer by a party, either verbal or in writing, expressly stated to be made without prejudice, or where from the nature of the offer and the circumstances under which it was made, it may be reasonably inferred that the offer was but the expression of a willingness to pay money, allow credit, deliver property, or do some other thing, by way of compromise, to buy peace and prevent litigation, such offer is not evidence against the party making it; but if the admission of the existence of a fact be made, unless expressly without prejudice, or as a mere concession in order to induce a compromise, there is no rule of law which would exclude such admission as against the party making it. 2. In the case of a pending controversy before arbitrators, where the parties are contesting their rights as adversely as before any other tribunal, the statements and admissions made by a party contesting are admissible, and may be proved by an arbitaator before whom they were made, as by any other person hearing them. 3. Where in a controversy pending before arbitrators, one of the arbitrators made a statement of the account of one of the parties to the controversy, the items of which she furnished from her book then present, such statement is admissible in an action between the same parties in reference to the same disputed matter, to show of what the account consisted and the amount as then claimed. Opinion by ALVEY, J.-Calvert v. Friebus.

MONEY PAID INTO COURT AND DEPOSITED IN BANK TO CREdit of Cause, NOT LIABLE TO ATTACHMENT-WHEN EQUITY NOT AUTHORIRED TO RETAIN FUND PAID INTO COURT, TO ALLOW VALIDITY OF ASSIGNMENT THEREOF TO BE LITIGATED.-1. B, being entitled to a distributive share of the proceeds of his father's real estate sold under a decree, made several successive assignments of portions thereof. In January, 1872, the auditor stated an account distributing this share to the several assignees in the order of priority, and auditing to W, the last of them, the balance of $800.56 in part satisfaction of his assignment for $1,000, dated the 11th of April, 1871. This account was ratified on the 14th of October, 1872, and on the 24th of that month W assigned the amount thus audited to him to S. Afterward, there was a re-sale of the lands and the proceeds were all collected by the trustee and paid into court on or before the 9th of April, 1876. On the 22d of March, 1876, S assigned to G his interest in the amount that had been thus audited to W and under these assignments, which were duly filed in the case, G by petition asked for an order directing the clerk to draw his check for the payment of this sum to him. M, a creditor of S, recovered a judgment against him on the 19th of April, 1876, and on this judgment issued an attachment on the 20th of July, 1877, which, on the same day, was laid in the hands of

the trustee; and at the same time he filed his petition in the cause averring the pendency of this attachment, charging that the assignment to G was made by S with intent to hinder, delay and defraud his creditors, that he was insolvent, and praying the court to declare the assignment void, and to direct the money to be paid to him, and to retain the fund for that purpose. The court passed an order dismissing this petition and directing the money to be paid to G. On appeal by M from this order, it was held, (1.) That the fund was not liable to the process of attachment. (2.) That the circumstances of the case did not authorize the court to retain the fund until the validity of the assignment by S to G could be litigated by the creditors of the former. (3.) That the court was right in dismissing the petition of M and directing the money to be paid to G., 2. Where real estate has been sold by a trustee under a decree of the court, and the auditor's account distributing the proceeds of sale stated and ratified, and such proceeds paid into court under an order to that effect, and deposited in bank to the credit of the cause, an attachment laid in the hands of the trustee to affect a part of such proceeds, can not be sustained. Opinion by MILLER, J.-Mattingly v. Grimes.

BOOK NOTICES.

A TREATISE ON THE LIABILITY OF STOCKHOLDERS IN CORPORATIONS. BY SEYMOUR D. THOMPSON. St. Louis: F. H. Thomas & Co St. Louis.

The author of this treatise needs no introduction to our readers. The name of Mr. Thompson is associated so intimately with the foundation and conduct of this JOURNAL in the past-to his skill and labors so much of its prosperity has been due- that we had written a notice of his present work with the conviction that it could not fail to be read without more or less suspicion as to its unbiassed character. Because we have aimed to make the department of Book Notices independent and impartial, and to express our opinion of legal publications without fear, favor or affection, we thought it best to wait for the verdict of other reviewers before printing our own estimate of the work --one which our friendship for the author and our admiration for his learning, industry and ability had formed even before its publication.

The book has now been before the profession for nearly six weeks, and the notices which it has received from our cotemporaries are now at hand. Their opinion is our own. In the judgment of the ablest of our weekly exchanges, it will enhance the favorable impression made by the same author's excellent work on Homestead and Exemptions; in the words of the most excellent of the legal reviews: "Mr. Thompson has given the profession a treatise and not a mere digest. He has not hesitated to express his own opinion and conclusion upon many of the controverted questions considered in his work, at the same time he has presented clearly and fully all that could be desired by way of citation of authorities. The entire work reflects the utmost credit upon its critical and wellknown author, and can not fail to obtain at the hands of the profession the favorable reception which its substantial merits so richly deserve."

This work is divided into twenty-two chapters, which are arranged under four parts. Part one, which treats of the nature and extent of the stockholder's liability, is devoted to a statement of the nature of corporations and an examination of the liability of their members in equity, and under particular statutes, and the constitutional questions which have arisen under them. In the second part, the manner in which

his liability is incurred is considered, and in part three the different ways in which the liability is divestedby breach of the contract of subscription, forfeiture transfer, bankruptcy and death-are each made the subject of separate chapters. The seven chapters in the fourth part relate to remedies, procedure and defenses, and are entitled, of the forum-when in equity and when at law; of the statutes of limitation; of conditions precedent to the right to proceed against stockholders; of parties; of certain questions of procedure and evidence; of certain defenses to actions against stockholders, and priorities among creditors. It contains 500 pages, exclusive of the index and table of cases. It is dedicated to Judge Bliss.

QUERIES AND ANSWERS.

ANSWERS.

No. 16.

[8 Cent. L. J. 307.]

A justice of the peace is not "liable to an action at the suit of a party" for an act done by him in a judicial capacity in a cause within his jurisdiction, unless in exercising his judgment he acts maliciously or from corrupt motives. 19 Ill. 242; 3 Con. 206; 17 Johns. 146; 19 Johns. 39: Cai. 170; 2 John. Cas. 27; 7 Wend. 200; 10 Mass. 356; 5 Mass. 559; 1 N. H. 374; 33 N. H. 247; 49 N. H. 192; 38 Me. 530; Tappan (Ohio) 238; 7 Wall. 351. "If the act of the magistrate is done without jurisdiction it is a trespass; if within the jurisdiction the action rests upon the corruptness of the motives; and to establish this the act must be shown to be malicious." The power to "hear and determine" constitutes jurisdiction. 3 Ohio St. 494; 6 Pet. 709; 12 Pet. 718. C. R. GRANT. Akron, Ohio.

[The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

The following queries received during the past week are respectfully submitted to our subscribers for solution, by request of the senders. It is particularly desired that any of our readers who have had similar cases, or have investigated the principles on which they depend, will take the trouble to forward an answer to as many of them as they are able.

QUERIES.

22. MARSHAL AS RECEIVER.- Is there any precedent for the appointment of a marshal as receiver? The marshal of the Northern District of Florida having, in several instances, been appointed receiver by the court, and last of all receiver of a long line of railroad, the matter has called forth a good deal of comment on the part of the profession. I desire to know whether there is any precedent for such an appointment. Lord Eldon when, on one occasion, it was proposed to make a master of the court committee of the estate of a lunatic, refused very decidedly, saying: "Though private persons may put them in the character of executors, the property of suitors is not by the judgment of this court to be put in the hands of its officers." 6 Vesey, 427. Tallahassee, Florida.

X.

23. REPEAL OF ACT.- In 1870, a statute was enacted which prescribed a certain line of procedure for the enforcement of rights thereby created. In 1874, the legislature passed an act providing a new and different remedy to enforce rights created and existing under the former law, and repealing inconsistent acts. In 1875, a new section was added to the seventy-eight sections of the aforesaid act of 1870, by due enactment of the following: "There is hereby added a new section to said act, to be known as section 79, and to read as follows: Sec. 79. All acts and parts of acts inconsistent with this act are hereby repealed." Query 1. Does this act of 1875 repeal the aforesaid act of 1874, if the latter is inconsistent with the aforesaid law of 1870 as enacted? 2. What effect ought to be given to this repealing section in construing the act of 1870 and statutes, in pari materia, enacted between the act of 1870 and the act of 1875 aforesaid?

St. Joseph, Mo.

R.

NOTES.

THE SUPREME COURT OF THE UNITED STATES adjourned for the term on Monday last.-The Massachusetts legislature has passed a "civil damage" law.

-There has never been any doubt, says the English correspondent of the New York Tribune, in a recent letter, that the law lords would hold trustees in the City of Glagow Bank liable to the full extent, not only of their trust estates, but of their private estates. A decision to that effect has now been given. The only chance the trustees were thought to have lay in the affix of the words "trust-disponees" to their names on the share register. But the Lord Chancellor and his legal brethren hold that this description has no force in face of the partnership deed, which expressly declares that trustees shall be entitled to all the privileges and subject to all the liabilities of ordinary holders. Lord Selborne says it is not unjust to enforce this liability on account of this notice. Trustees must be supposed to have taken shares with full knowledge of the risk they ran. It is remarked also that in England itself all shareholders, whether trustees or otherwise, in an unlimited bank, stand on an absolutely equal footing. Admitting all this, and admitting that the law leaves the learned lords no option, it remains true that the case is one of hardship, and with all def erence to Lord Selborne, of gross injustice. For there is no doubt that the law as it stands was framed with a very different object. Its object was to prevent a trustee from playing ducks and drakes with trust money, and then shielding himself as against a cestui que trust. It was meant that a trustee should be liable to the full amount of his private estate, not to the public, nor to the creditors or the bank, but to the person whose money he had speculatively invested. It turns out now that he became equally liable to the creditors, and trustees are swept away in the general ruin equally with those who traded for their own advantage. It is good law, if you like, but it is not good morals, and in the long run it would not prove good policy. Here are men who, without a thought of making a penny for themselves, bought City of Glasgaw Bank stock with the funds which they were bound to invest for those whose interests they were representing. They were legally compelled to take over the shares in their own names, and they are now legally compelled to pay out of their own money the debts of a bank in which not a farthing of their own money was invested. Who will consent to be a trustee hereafter in such circumstances?

SAINT LOUIS, MAY 16, 1879.

CURRENT TOPICS.

In the case of Commonwealth v. McDuffy, argued at the January term, 1879, of the Supreme Judicial Court of Massachusetts, the question was raised whether the offense of obtaining property by false pretenses can be committed when the party charged obtains no more than is rightfully due him, by whatever fraudulent means or devices he thus obtains it. The defendant, McDuffy, was indicted for obtaining money by false pretenses from one Sweetser. There was evidence tending to show that Sweetser was indebted to the defendant, and the latter offered evidence of the exact amount of such indebtedness, but the court refused to admit it. The defendant asked the court to instruct the jury: "1. If McDuffy only received, at the time of the settlement with Sweetser, money enough to pay what was actually due him, then this indictment cannot be maintained. 2. If McDuffy made representations only for the purpose of getting the money due him, aud not for the purpose of obtaining money not due him, then this indictment cannot be maintained." declined to give these instructions. The full court, LORD, J., delivering the opinion, say: "This leads to an inquiry into the essential elements of the offense. In Com. v. Drew, 19 Pick. 179, Morton, J., says that to constitute the statute offense, four things must occur: 1. There must be an intent to defraud. 2. There must be actual fraud committed. 3. False pretenses must be used for the purpose of perpetrating the fraud, and 4. The fraud must be accomplished by means of the false pretenses made use of for the purpose; and in Com. v. Jeffries, 7 Allen 568, Bigelow, C. J., says: "The intent to defraud is part of the substance of the issue, and must be proved.'

The court

In Rex v. Williams, 7 C. & P. 354, C, a servant of B, obtained property belonging to A by means of falsehood, to enable B to obtain payment of a debt owed by A; and it was held that if C did not intend to defraud A, but only to enable B to obtain what was due him, he could not be convicted." Vol 8-No. 20.

Com. v. Henry, 22 Penn. 253; People v. Getchell, 6 Mich. 496; People v. Genung, 11 Wend. 18, and II. Russ. Cr. p. 312; Bishop's Cr. L. I., § 525, II., § 442, were also cited, after which the learned judge proceeds: "We are of course not to be understood as deciding that a mere pretense of indebtedness by the person from whom the property is obtained is sufficient, nor is anything which we decide to be construed as in conflict with the well established rule of law that a party is to be presumed to intend all the natural and ordinary consequences of his acts, and fraud and falsehood are always evidence to show that the party had a dishonest purpose; and the question for the jury to decide is, whether upon all the facts and circumstances the defendant had an intent to defraud, and effected that purpose, and whether in order to accomplish it he made use of fraudulent representations, and succeeded by means of such the defendant should have been allowed to representations. We think, therefore, that offer evidence in support of the facts upon which his prayers are predicated, and the jury should have been instructed that if proved, the defendant was entitled to an acquittal."

BLODT

right to take back volumes and recover the difference from the publisher. ETT, J., said: "The question is, had the defendant the right to obtain a cancellation of the orders he had secured for plaintiff's book, and substitute orders for the British book, and charge the expense of so doing to the plaintiff? Upon this question I am very clear that he had no such right. The orders in question had been obtained by the defendant as the plaintiff's agent. Both parties, we may say, had an interest in them. The defendant could not, without the consent of the plaintiff, secure the cancellation of those orders, and charge the plaintiff with the expenses he incurred in so doing. This would be a wrong toward the plaintiff, who had the right to the benefit of these orders to the extent to which they had been taken. The defendant contends that he was obliged to do this in order to protect himself from the contracts he had made with his subseribers, and which he was unable to fill by reason of the plaintiff's refusal to sell him books on credit to fill them with. It seems to me, however, that two courses lay open to the defendant in this emergency: first, to have paid the plaintiff cash for the books required to fill the orders which he had taken, for I do not think the plaintiff was bound to give the defendant credit for stock after the defendant had broken the contract; or, secondly, to have turned these orders over to the plaintiff and allowed him to fill them on proper terms of equity between them. I do not agree with the defendant that he was in such peril from the contracts which he had made with these subscribers as to justify the course he took in cancelling this large number of them. The contracts with the subscribers are, in my opinion, binding contracts upon the plaintiff himself, made by the plaintiff's duly authorized agent, the defendant, and it is at least doubtful to my mind whether the defendant is personally liable on them at all. In any event, he is only liable in the nature of a guarantor, or where bad faith is shown, It seems to me it would be a sufficient answer by Mr. Warren to any subscriber who demanded books according to the terms of the subscription to refer the subscriber to the plaintiff, and demand of the plaintiff, in behalf of such subscriber, that he should fulfil the contract which Mr. Warren had made with the subscriber as Stoddart's agent." See on the subject of the contracts of

canvassers, Hathaway v. Bennett, 10 N. Y. 108; Depew v. Keyser, 3 Duer, 335; Kline v. Low, 11 Johns. 74; Ewing v. Johnson, 34 How. Pr. 202.

ABANDONMENT AND ITS EFFECT. The act of abandoning a vessel by the insured, or his agents or assigns, when accepted, has, in law, all the effect of a valid assignment. The underwriter then stands in the place of the assured, and all that can be saved from destruction he is legally entitled to. The masters of vessels, in the absence of the owners, have unlimited control of the vessels. This is the case, whether the vessel is a sea-faring one or used in inland navigation, or the coasting trade. It is now well settled by numerous authorities, both English and American, that in cases of necessity happening during the voyage, the master is, by law, the agent of all parties concerned, and under such circumstances acts done by him, and done in good faith, exercising sound judgment, are binding on all parties in interest. The Sarah Ann, 2 Sum. 256; New England Ins. Co. v. The Sarah Ann, 13 Pet. 387. When there is imminent danger, or when the vessel is so damaged as to justify a sále, he, from the necessity of the case, becomes the agent of the underwriters equally with the owner, and is bound to effect the sale for the common benefit of both his principals. If he has authority to sell the vessel in case of injury, he by necessary implication has authority to do all acts which his own good judgment may dictate to save her from total destruction. Such is his duty. He can not abandon his vessel in case of impending danger, without first using all the skill, exertion and prudence at his command to save her from destruction. And where a vessel is stranded, it is obligatory on the master to take all possible care of the cargo. The Niagara v. Cordes, 24 How. 7. In case of capture by a vessel of a belligerent power of a neutral vessel, the master of the neutral vessel is bound to remain on board of her until she is condemned, or until there is no hope of recovery. Willard v. Dorr, 3 Mason, 161.

In case of the stranding of a vessel, and where considerable damage is thereby caused, or great expense would be incurred in remov