tal felony, and the offense ceased soon after. The commercial greatness of England, and her ability to pay her vast debt, were involved in the question; and parliament, therefore, very properly sacrificed maudlin considerations of leniency for criminals to the national life and prosperity. Now, our national virtue and best interests are being undermined by the open profession of abortion as a fine art. It is time that the crime should be repressed with all the vigor that is known to remedial legislation.

COMMITMENTS FOR CONTEMPT OF CONGRESS.

The power of either house of congress to punish for a contempt of a joint committee of both houses has been the subject of grave doubt at Washington. There seems, however, to be no ground whatever for any wavering of opinion on this point. The whole, indeed, is greater than the parts; but it contains the parts, and no part possesses any quality that is not found in the whole. If a committee of either house wishes to act in conjunction with any other body, this does not affect its inherent privileges. A fortiori, is this so, if the committee is only acting along with a committee of the other chamber of the legislature?

But, though all things are lawful, all things are not expedient. It may not be desirable that a committee should assume the responsibility of committing a particular witness whom they consider to be contumacious. Committees of a legislative body, however, are always unwilling to admit that they can be wrong in point of fact. They prefer taking refuge on a point of law, forgetting that, though they may save their dignity for the nonce, they are laying a foundation for much future contention respecting the extent of their constitutional rights and privileges.

This question of committing for contempt to joint committees underwent an animated discussion in the congressional senate on the occasion of Senator Scott's recent proposed resolution to direct the vice-president

to issue his warrant for the arrest of certain contumacious ku-klux witnesses. Senator Scott introduced a concurrent resolution, putting the authority for arrest and punishment, in this case, into the hands of the senate. The party led by Senator Edwards on the other hand, considered that contempt of the joint committee was contempt of each house separately, and wished, accordingly, to act independently of the house of representatives. Senator Sherman's view of the case was, that punishment for contempt lay with the house that was actually contemned, but that a contempt against congress, in globo, is not recognized by any constitutional law. This position is not logical. If either house is insulted in a manner for which it can inflict a punishment, it can also punish even though the offense relate to other bodies, or the other branch of the legislature. A contempt or libel upon king, lords and commons, could always be punished

in England at the instance of any one of the three bodies. The proposition of Senator Sherman amounts to this: An offense against a joint committee of both chambers of the legislature is an offense against both chambers. It can, therefore, be punished, he adds, only by the action of both houses or not at all. But such an offense as contempt against congress cannot, he thinks, be punished by that body as a whole. We have already disproved this reasoning, or rather denied the allegation that an offense against both houses jointly is not equally an offense against both houses separately.

The extent of the powers of the chambers in matters of contempt is a different question from the existence of the powers. In England the house of commons, and even the staid house of lords, were so often brought into collision with the courts of law who released by writs of habeas corpus persons committed by the legislative chambers, that the matter had to be defined and permanently settled by statute. This was the more necessary, as the house of commons had not, at common law, the power to tender an oath at all, or to commit a recusant or contumacious witness, except during the sittings of the house. The revisers of our federal statutes would do well to take notes of the defects of our congressional laws in the course of their compilations. Any suggestions for a code of the privileges of congress, and of either house thereof, will be thankfully received both by congressmen and others.

CURRENT TOPICS.

The president has transmitted to congress a report of the civil service commissioners with a special message, indicating his views and intended action thereon. The regulations laid down by the commissioners bid fair, when put in force, to very materially raise the standard of our national public service. Of course they provoke many unfavorable comments from the newspapers, but that was to be expected. The truth is that professional politicians will lose considerable of their stock in trade if the inferior officers are no longer to remain a reward for dirty work about election time. If the civil service reform mania could only reach the administrative departments of our State and city governments, we should have a more abiding faith than now in the ultimate success of democratic institutions.

The New York State legislature begins its ninetyfifth session during the coming week. From present appearances there will be brought before it numerous measures of great importance not only to the people of this State but to those of the whole country, and which must be of some interest to civilized people everywhere. It is probable that an attempt will be made to so remodel the New York city charter as to make an honest municipal government there possible;

that radical changes will be made in the laws concerning voting, that the police systems of the State will be re-organized, and that sundry other matters of general or special importance will be attended to. If half is done that is proposed in the way of reformatory legislation, the statute law will be very extensively amended. While we need a good deal of law-making to set things right, we hope that our soon-to-be law-makers will bear in mind the motto festine lente.

A postal telegraph bill has been introduced into the United States senate. It is, of course, liable to amendment, and will probably assume a very different form from what it bears now before a vote is reached. We do not believe, however, that its passage ought to be urged until the great cancer of the American postoffice- the franking privilege is destroyed

The committee of seventy have finished the draft of the proposed new charter for the metropolis. They are hopeful as to its practical workings, and are confident that very many of the evils which have cursed their unfortunate city are, for the future, guarded against. But the one great underlying evil, which is the source of all the rest, is not guarded against. So long as universal suffrage prevails, we have little confidence in any scheme for insuring honest city governments. The apparent interest and the prejudices of the many are in favor of a lavish use of public moneys, and they will, as a rule, support the party or clique which promises to regard their wishes. Under the influence of excitement they may turn upon those whom they have all along supported, and denounce the very acts which they before demanded should be done, but they soon return to their former habits and follow leaders no less corrupt than the old New York city can be well and economically governed, but not by its inhabitants.

ones.

OBITER DICTA.

A Yankee is good at guessing, but an Englishman is "Best on Presumption."

A lad in a country court, who was called as a witness, was asked if he knew the nature of an oath, and where he would go if he told a lie? He said he supposed he should go where all the lawyers went.

It was said of a Massachusetts lawyer (and what higher compliment could be paid an advocate?) that "he won all his cases because he gave his own face in evidence when he tried them."

D. Webster used to say that he learned pleading by translating the forms in Saunders' Reports from the original Norman French into English, and thereby making himself master of the precise phraseology of the several declarations and pleadings which are found in that work, so that he was never afterward at a loss to draw a special plea without resorting to a book of forms.

There are but three ways, "said a great judge," for getting on at the law; devious, special pleading or a miracle. And Lord Chancellor Talbot observed, "parts and poverty are the only things needed by the lawstudent."

There are other errors too beside misprints, even wearers of the ermine are not infallible. Cases are on record in which judges have confessed themselves mistaken. One judge, thinking that he had caused an injustice to be done which it was beyond his power to rectify, left the injured person a large sum of money in his will. It is said that the case of Lord Cochrane, afterward Earl of Dundonald, almost broke the heart and hastened the resignation and death of Lord Ellenborough. This great man and most upright magistrate, had conceived a political prejudice against Lord Cochrane, and summed up violently against him. He afterward saw good reason to believe that he had been mistaken in his facts, and had been too harsh in his sentence.

Inadvertently, we said that, in his haste, “Paul called all men liars." Perhaps he did, but David was guilty of And now that the error is corrected we will append an the same hasty utterance long before the apostle's day.

admirable anecdote, which, if well known, is so because Dean Ramsey's Scottish Life and Character is so excellent that everybody has read it or quoted from it.

Mr. Shirra, a seceding minister of Kirkcaldy, was remarkable for his quaint, and as it were, parenthetical comments which he introduced in his reading of scriptures. When he came to the 116th psalm, one Sunday morning, "I said in my haste all men are liars," he quietly observed, "Indeed, Dauvid, an ye had been i' this parish, ye might hae said it at your leesure."

Geo. Alfred Townsend ("Gath") has a slashing way of talking about people. His comments are always spicy, and when he gets personal (which is frequent) he is not afraid to "speak right out in meetin'." In sketching the characteristics of Hon. W. S. Groesbeck, the leader of the Cincinnati bar and a possible candidate for the presidency, he is felicitous as follows: He is one of the few wealthy men in America who has no active profession, and who is equally uninterested in other people's business. This gains him the name of being an aristocrat, and makes him offensive to the class of democrats who attend primary meetings. With like consistency these same chaps also allege that he is close, penurious, self-intent and no radiator. Our fellow citizen, as you are aware, must be a kind of morning glory stove, with window lights in him to let us see precisely how much fuel he burns, and how it is glowing; and he must, besides, throw off powerful beams of warmth while we all sit around with our feet on him, spitting underneath him now and then. We want our great man right in the family among the pictures of Washington, the horse Fair and the Village Blacksmith, otherwise he is an aristocrat, particularly in Cincinnati.

GENERAL TERM ABSTRACT. SUPREME COURT-FIRST DEPARTMENT.

NOVEMBER TERM, 1871.

ACCOUNT. See Money Received.
ALIMONY. See Appeal.

APPEAL.

1. Appeal from order fixing alimony.-This is an appeal from an order at special term fixing and ordering the payment of alimony. Held, that the questions raised are decided by the court of appeals in Forest v. Forest, 25 N. Y., 501. It was there decided that the general term could not only entertain such appeals, but might order a reference to ascertain the suitable amount to be allowed. The object of the reference and the report of the referee is to inform the conscience of the court, but it is the court not the referee who adjudges the question as to what is a suitable allowance. Hence, there can be no available exception to the report of the referee, or to his admission or rejection of evidence. The order appealed from was erroneous in directing the payment of arrears of alimony. The plaintiff should have been left to enforce the payment of the alimony in the ordinary way. Hoffman v. Hoffman, 55 Barb. 269, case cited; Galinger v. Galinger. Opinion by Ingraham, P. J.

2. Amount of alimony.-The value of the defendant's property, deducting his indebtedness, is found by the referee to be $12,550. This would not warrant alimony to the extent of the order. If the plaintiff will stipulate to accept $600 annually, the order may be so modified. If not, the order is vacated, and the case sent back to the referee for such further evidence as to the value of defendant's estate as may be offered by the parties. Ib.

The facts stipulated in this action were substantially as follows: That on or about the 1st day of September, 1866, Lewis M. Ricketts, one of the plaintiffs, at the office of defendants in New York city, stated to defendants' freight-agent that he was desirous of sending certain merchandise to the plaintiff at Marysville, Kentucky, and inquired at what rate defendants would carry the same. The freight-agent replied, at the rate of $1.51 per hundred pounds," and instructed the plaintiffs to have the same marked "B. & A. Express, River," and to deliver the same at the freight depot of the Camden and Amboy Railroad Company in New York city. Ricketts thereupon instructed the firm of Bliss & Co., of whom he had purchased on account of plaintiffs the merchandise in question, to mark and send the same as stated above. On the 19th of September Bliss & Co. directed the merchandise to

the plaintiffs at Marysville, Kentucky, and marked and sent the same according to instructions. A bill of lading was taken from the agent receiving the merchandise, which contained a stipulation "That in case of any loss, detriment or damage done to and sustained by any of the property receipted for, whereby any legal liability or responsibility shall or may be incurred, that company shall alone be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss, detriment or damage." Defendants carried the merchandise safely to the terminus of their road at Parkersburg, and there delivered it on board a steamboat engaged in the transportation of freight as a common carrier, bound down the Ohio river, to Marysville, Kentucky. A portion of the merchandise was never received by the plaintiffs, and this action is brought to recover the value thereof. Judgment was entered below, on report of the referee, in favor of defendants. On appeal, held, that what occurred between the plaintiffs and the defendants' freight agent did not amount to an agreement. The plaintiffs did not agree to ship any goods, and their sending property to the place designated some eighteen days afterward cannot be said to be an acceptance by them of what, putting what the freight agent said in the strongest light, was but an offer or proposition on the part of the defendants. The Chicago, etc., Railway Co. v. Dane, etc., 43 N.Y. 240. When, therefore, on the 19th of September, the plaintiffs, through Bliss & Co., shipped the goods in question, and took the receipt, which they put in evidence, the contract, whatever it was, was made. That contract was contained in the receipt, and by the express terms of it it was agreed that only that company should be held answerable in whose actual custody the property should be at the time of the happening of the loss, detriment or damage; and as the fact was shown that the loss happened after the property had been delivered by the defendants to the steamboat running between Parkersburg and Maysville, the judgment is affirmed. Ricketts v. The Baltimore and Ohio Railroad Co. Opinion by Cardozo, J.

BILLS, NOTES, ETC.

Subscription notes to insurance companies.-This action is to recover the amount of a promissory note, made by the defendants to the order of the Washington Marine Insurance Company, and by the payee indorsed to the plaintiff. The answer sets up that the note was given without consideration for the accommodation of the payee, upon an agreement that it was not to be used, nor the defendant liable upon it, except for the amount of premiums for such insurance as defendants should procure from the payee, and that it was transferred to plaintiff as collateral security. The note was given by defendants under the following circumstances. The defendants had an adjusted claim against the Washington Insurance Company for losses amounting to $2,500. This the company did not pay, and an arrangement was made whereby the defendants gave two notes, each for $1,250, in advance, for insurances to be effected, and the company gave their agreement to pay the defendants their claim against the company in April and June following. Many other creditors made similar arrangements. The company was, in fact, insolvent when the note was given, although this fact was unknown to the defendants. The company continued its existence until May 1, 1867, when it ceased to do business. In September, 1866, the said company was indebted to the plaintiffs

in about $30,000, which they were unable to pay. Sometime thereafter they gave the plaintiff's notes therefor, and, as collateral security for the payment of said notes, there was deposited with one Brown, a director of the Washington company, notes held by that company. These collaterals were exchanged from time to time. After the last note fell due, the note in suit was executed, and was thereafter deposited with Brown as one of the collaterals to the overdue note. It was delivered to the plaintiff in the spring of 1867. On the trial of the cause, the court directed a verdict for the plaintiff, subject to the opinion of the general term, upon the facts as proved. Held, the only question to consider is, whether the defendants can avail themselves of any equities to which the note might have been subject, if it remained in the hands of the Washington company. This question is answered in the negative by the charter under which the note was made. The proof shows that the note was a subscription note, and, by the charter, they are to be deemed the absolute property of the company, "and may be used for the payment of loss and liabilities, and for any other purpose connected with the business of the company, and, when negotiated and in the hands of third persons, shall not be subject to any equitable claim or off-set." This authorizes a transfer, either in absolute payment, or as a security for the payment of a valid debt of the company. Howland v. Treger, 3 N. Y. 290, case cited. There should be judgment for plaintiff. The Great Western Insurance Company v. Thayer et al. Opinion by Cardozo, J.

CAUSE OF ACTION. See Money Received.

CONTRACTS.

Construction of contracts. This action is brought to recover a balance of money alleged to be due, on a sale of hides by the plaintiffs to the defendants. The plaintiffs' broker negotiated a sale of the hides to defendants, and a bought and sold note was signed by him and delivered to the parties, in these words:

"NEW YORK, February 19, 1859. "Sold for account of Messrs. D. G. & W. B. Bacon, to Mr. W. W. Gilman, 4,045 Singapore and Penang cowhides, Samuel Appleton. No allowance, except for sea damaged. Price 12 cents per tb, cash.

"Jos. SOUTHWICK."

Judgment for plaintiffs. On appeal, held, that the only question involved is as to the construction of the agreement evidenced by the bought and sold note, read in the light of the testimony, from which the referee has found that the whole of the property was sold and delivered to the defendants. It is clear that the contract was for the purchase of all the hides at the price of twelve cents per pound, subject to a deduction from the price, at usual or fair rates, for any of the hides that were sea damaged. So construed, it is plain that the title to the whole passed to the defendants, and that the right to sue for the price followed immediately upon the delivery of the goods. Judgment affirmed. Bacon v. Gilman. Opinion by Cardozo, J.

Also, see Bills of Lading.

CORPORATIONS.

Suits by stockholders for dissolution of corporations. -The plaintiff, as a stockholder, sues the defendants, claiming a dissolution of the company on the ground that the business of the company had been suspended more than a year. At special term a receiver was appointed, and from this order the defendants appeal.

Held, that there is no difficulty as to the points raised, except that which relates to the right of the plaintiff, being a mere stockholder, to maintain such an action. The provisions of the revised statutes, which allow of proceedings against corporations for not continuing business for a year, evidently contemplate proceedings by the attorney-general for a forfeiture of the charter; and a reference to the original act, in session laws, 1825, will show that no provision was made for any proceedings in such cases to be taken by stockholders. It has been repeatedly held that this court has no jurisdiction over these corporations, except such as is conferred by statute, and unless authority therefor can be found therein, it cannot be exercised. There are various cases in which this question has been examined, and in which it has been expressly held that no such action can be maintained by a stockholder before judgment. Howe v. Deud, 43 Barb. 504; Belmont v. Erie Railway Co., 52 id. 637; Galway v. The U. S. Steam Sugar Refining Co., 36 id. 256; Bradt v. Benedict, 17 N. Y. 99; People v. The Northern Railroad Co., 53 Barb. 98; and 42 N. Y. 217, cases cited. The Code, section 430, provides for actions to annul the charter of a corporation by the attorney-general, among other causes, for forfeiture for failure to exercise its powers; but that can only be done upon leave of the court. Our opinion is, that the action cannot be maintained to effect forfeiture of the charter for non-user within a year, and that in any case, even when brought by the attorney-general, the receiver cannot be appointed until judgment in the action. Order appealed from reversed. Gilman v. The Greenpoint Sugar Co. Opinion by Ingraham, P. J. Also, see Bills, Notes, etc.; Creditor's Bill; and Bills of Lading.

COURTS, DESIGNATION OF. See Perjury.

CREDITOR'S BILL.

Suits against stockholders for debts of company.- On appeal from judgment in favor of plaintiff. The New Jersey Steam Navigation Company, a foreign corporation, a common carrier of goods and passengers, in July, 1863, lost plaintiff's trunk. In April, 1866, a judgment was recovered against said company for the value of said trunk, and the execution issued on this judgment was returned nulla bona. In December, 1863, the corporation suspended business, converted all of its capital stock and assets into money, and, leaving plaintiffs claim, of which it had notice, unpaid, divided up those moneys among its stockholders. The defendant was a director and president of the company, as well as a stockholder, and received his pro rata of the proceeds of the capital stock and assets. This division among the stockholders exhausted the entire capital and assets of the company, leaving nothing to pay plaintiffs' judgment. This suit is instituted to compel defendant to pay from the proceeds so received by him a sum sufficient to discharge defendant's judgment. Held, this action is not brought upon the theory that any statute has been violated by defendant receiving a portion of the property of the New Jersey company. The statute of our State in that regard is inapplicable to a New Jersey corporation.

The object of this action is not the dissolution of the corporation, but it is to reach, in the hands of a person who has possession of it, some of the property of the corporation-the judgment debtor-and subject it to the payment of the plaintiffs' judgment. This is a very common proceeding under a judgment creditor's

bill, which this in effect is, and is still allowable under the code. Voorhees (10th ed.), p. 175, § 142, note a. Osgood v. Laytin, 3 Keyes, 521, has no application, being on the statute of this State. Judgment affirmed. Bartlett v. Drew. Opinion by Cardozo, J.

HUSBAND AND WIFE.

In an action not relating to her separate property, the wife cannot answer alone, except upon application to and leave granted by the court. That was the rule before the code, and that statute has not changed it. Barb. Ch. P. vol. 1, p. 150; 18 How. P. 147; 11 id. 42, cited. Hutchins V. Glass. Opinion by Cardozo, J.

INDICTMENT. See Perjury.
INJUNCTION. See Bankruptcy.
INSURANCE. See Bills, Notes, etc.
MANDAMUS. See Unknown Owners.

MONEY RECEIVED.

Action to recover back money paid by mistake.-This action is brought to recover back from the defendants, money alleged to have been paid them by mistake under the following state of facts: In November, 1865, one Post opened an account with plaintiffs as his brokers, and deposited with them a "margin." In December, plaintiffs returned or loaned to Post on this account, for temporary use, $5,000, which sum, by mistake, was not charged in account against him. In January, 1866, Post assigned to defendant his interest in said account. In May, plaintiffs made up a statement of account, showing a balance due Post of $10,643.20, and thereupon paid that sum to defendants as assignee of Post. Plaintiffs soon after discovered the error and called upon defendant to return the sum of $5,000, not charged against Post in the account showing the above balance. In January, Wilson, Gibson & Co. had guaranteed Post's indebtedness to defendant and subsequently paid that indebtedness to them and obtained a release from defendant. The defendants credited Wilson, Gibson & Co., in their settlement with them, with the value of Post's interest in the hands of plaintiffs as appearing by the account rendered. On appeal from judgment in favor of plaintiffs, held, that the defendants, being the assignees of Post for their own benefit, became the principals in the settlement with the plaintiffs, and were responsible for any mistake made in such settlement in the same manner and to the same extent as Post would have been if the same had been made with him. The settlement between the bank and Wilson, Gibson & Co. did not affect the plaintiffs' claim. The same mistake of fact if carried into that settlement would open those accounts and enable the defendants to recover from them any sum so allowed to Wilson, Gibson & Co., if erroneous. Judgment affirmed. Lawrence v. The American National Bank. Opinion by Ingraham, P. J.

NEGLIGENCE.

This action was brought to recover damages for the negligence in running over the plaintiff, and striking her in the head with the pole of a sleigh driven by defendant. The answer denied the allegations of negligence in the complaint, and set up that the plaintiff was chargeable with concurrent negligence. On a former trial the plaintiff had a verdict, but the judgment was reversed, and a new trial ordered. On appeal from judgment, in favor of plaintiff, on the second trial, held, that the evidence on the question of negligence,

both on the part of the plaintiff and of the defendant, were properly left to the jury, and the jury have found against the defendant. As to the alleged negligence on the part of the plaintiff, which, it is contended, contributed to the accident, the evidence is of a contradictory character. The plaintiff had reached the end of her route in the Eighth avenue car, and must either leave it or be carried back. She says she looked for vehicles on the road and saw none as near as 124th street. Whether under the circumstances she could have done otherwise than she did do, was a question which could not have been properly decided by the court.

The jury had been charged that the accident must have been occasioned solely by the wrongful act of the defendant, and without any act of negligence on the part of the plaintiff. This covered all that was proper to be submitted to the jury on that point. The question whether defendant could have avoided hitting the plaintiff, and whether, if the plaintiff had gone on instead of returning to the car, she would have been injured, were mere matters of opinion, and were properly excluded.

It is hardly to be supposed that an elderly woman, leaving a car under such circumstances, can exercise that coolness and judgment which a man used to the driving of horses can do, and even if she could have escaped by the other course, it would not have altered the result. Judgment affirmed. Moody v. Osgood. Opinion by Ingraham, P. J.

2. Fast driving negligent. There can be no doubt that proof of driving, in a public street, at the rate of a mile in three minutes and ten seconds, when the law limits driving to eleven minutes a mile, is amply sufficient to charge the defendant with the consequences that follow from such driving. Ib.

NEW YORK CITY. See Unknown Owners.

PERJURY.

1. Form of indictments for perjury.-The plaintiff in error, Geston, was convicted in the court of general sessions on an indictment for perjury, charged to have been committed before the referee in a divorce suit, between John Gowan and wife. On appeal, held, the indictment upon which the plaintiff in error was convicted is faulty in matters of substance. 1st. It is alleged that the action, upon the trial of which the perjury is charged to have been committed, was pending in the supreme court of the city of New York, and that the referee who administered the oath was appointed by the supreme court of the city and county of New York. There are no such courts known to the law, certainly none so designated of which judicial notice can be taken as having jurisdiction of an action for divorce. 2d. It nowhere appears in the indictment that the offense, if any there be, was committed within the city and county of New York. All of the testimony referred to in the indictment may have been taken out of the county or out of the State of New York. 3d. It is alleged in the indictment "that it then became and was a material issue to be tried before Wm. C. Traphagen, whether the said John Gowan had committed adultery, as alleged by the plaintiff in the said action; " but it is nowhere alleged that the evidence adduced on the questions calling out that evidence were material to the determination of that issue. No information is given as to what was "alleged by the plaintiff in said action," and therefore it cannot appear upon the face of such indictment that