rod put on his house, made his negotiable note in the ordinary form without any statement as to what it was given for, the payee of the note at the same time in writing warranting the house for ten years against damage from lightning. This note was discounted by plaintiff at twenty-five per cent discount. Held, that even if the contract of warranty should be considered in the light of an insurance on the house so as to require the note to state on its face that it was given for insurance, the fact that the note did not so state would not render it void in the hands of an innocent purchaser without notice. Held, also, that the amount of discount at which the note was purchased by plaintiff was not a circumstance to put him on inquiry. The

court remark that "it should not be inferred that we

deem the law to be, that the purchaser of a negotiable promissory note for value, before maturity, will not, if be purchased under circumstances which would have excited the suspicion of a prudent man, be regarded as an innocent purchaser. It was, it is true, so held in Gill v. Cubitt, 3 Barn. & Cress. 466; but the rule in England now appears to be that even gross negligence will not necessarily defeat a recovery, .and will do so only where it is such as to evince actual bad faith. In this country the decisions have not been entirely uniform, but the weight of authority is probably in accord with the latter English rule. Gage v. Sharpe, 24 Iowa, 15; Lake v. Reed, 29 id. 258. See, also, Daniel on Negotiable Instruments, §§ 774 and 775." Iowa

Sup. Ct., Sept. 17, 1879. Cook v. Weirman. Opinion

by Adams, J.

USURY-WHEN NOTE TAINTED BY, VALID IN HANDS OF INNOCENT HOLDER.-The principle is now well settled that if a note is not declared void by statute, mere illegality in its consideration will not affect the rights of a bona fide purchaser for value. Norris v. Langley, 19 N. H. 423; State Bank v. Thompson, 42 id. 369; Converse v. Foster, 32 Vt. 828; Paton v. Coit, 5 Mich. 505; Sistermans v. Field, 9 Gray, 331. But where the illegal consideration is proved, the burden of proof is on the plaintiff to show that he is a bona fide holder for value, and without notice. Accordingly, when a statute forbidding usury declared that "if a greater rate of interest than is hereinbefore allowed shall be contracted for, or received, or reserved, the contract shall not therefore be void; but if in any action on such contract proof be made that illegal interest has been directly or indirectly contracted for, or taken, or

reserved, the plaintiff shall only recover the principal

without interest, and the defendant shall recover costs." Held, that the defense of usury would not be available against a bona fide holder for value without notice before maturity. Nebraska Sup. Ct., Sept. 1879. Wortendyke v. Meehan. Opinion by Maxwell, C. J.

CRIMINAL LAW.

EVIDENCE -STATEMENTS BY OTHERS IN PRESENCE OF ACCUSED.-A police officer took prisoner, who was charged with murder, to where the body of deceased was lying, and a woman there present said, "This is the man who killed him." Held, following People v. McCrae, 32 Cal. 98, that the statement of the woman was admissible. Such statements are admissible not as of themselves evidence of the truth of the facts stated, but simply to show what it is that calls for a reply, and the action of the defendant himself under the circumstances, as indicating an acquiescence in, or repudiation of, the truth of the statement. People v. Estrado, 49 Cal. 172. Held, also, that statements made by other persons in the presence of the defendant, while in jail, were admissible upon the same ground and for the same purpose. California Supreme Court, Sept. 13, 1879. People v. Ah Yute. Opinion per

Curiam.

WITNESS DISQUALIFICATION OF CONVICT AS.— A person who has been convicted of obtaining money under false pretenses, and has been sentenced to the penitentiary, is not a competent witness; and the fact that his sentence has been suspended by an appeal aud order of supersedeas does not remove or suspend the disqualification. Missouri Supreme Court. Ritter v. Democratic Press Co. Opinion by Napton, J. (to appear in 68 Mo. Rep.)

VERDICT-WHEN SET ASIDE ON THE FACTS-COURT NOT BOUND BY ERRONEOUS ONE. - Defendant was convicted of an assault with intent to commit rape upon a girl who had lived for six years in his family. The testimony of the prosecutrix was that the act was committed in September, 1878; that she continued to live in the defendant's family until January, 1879; that she informed no one of the assault until April, 1879. The offense was denied by the accused, and evidence was offered to show that the prosecutrix said shortly before the trial that defendant never did any thing to her but what a father would do. It was shown by a large number of witnesses resident in the neighborhood of defendant, that his character for morality and virtue was good. Held, that the verdict of guilty should be set aside and the judgment reversed. A mere difference of opinion between the court and jury is not sufficient to justify the reversal of a case. where it is clearly wrong it will be set aside, and such has been the uniform holding of this court from its

But

organization. Seymour v. Street, 5 Neb. 85; The A.

& N. R. Co. v. Washburn, id. 117; Milton v. State, 6 id. 145; Mathewson v. Burr, id. 312. In no other way can the rights of parties be protected. The jury may misconstrue the issue, misunderstand the instructions, fail to analyze all the facts, or in times of excitement be unconsciously influenced by popular clamor, aud unless the court will correct the wrongs, although they may involve loss of life, liberty or property, they must go unredressed. Nebraska Supreme Court, Sept. 1879. Fisk v. State of Nebraska. Opinion by Maxwell, C. J.

WHEN INSUFFICIENT FOR INFORMALITY. — The defendant was indicted for an assault with the intent to commit murder. The verdict entered in the minutes is as follows: "We, the jury, do find the defendant guilty of the indictment, as charged to him.” Held, that the verdict was insufficient to warrant a conviction. The words do not convey any meaning. The jury do not find the defendant guilty of any offense.

The court might surmise that they were of the opinion that the defendant was guilty of some offense, but it is not the province of the court to ascertain or specify the offense of which the defendant is guilty. The verdict must determine that question. In cases where only one offense is included in the charge, and the statute has not divided the offense into degrees, it may be sufficient for the jury to find the defendant guilty, or guilty as charged in the indictment; and if other words are added, they may perhaps be rejected as surplusage; but when the jury may find him guilty of one of the two or more offenses included within the offense charged in the indictment, they must, by their verdict, specify the offense of which they find him guilty. California Supreme Court, Sept. 13, 1879. People v. Ah Gow. Opinion per Curiam.

otherwise prescribed in the act specified in subdivision fourth of this section."

over one hundred and ten years ago, by Thomas Jefferson, a reference to which may be found at pages 31, 32,

We understand that the repeal, as qualified by the above subdivision 6, leaves the Revised Statutes upon the subject of exemptions from execution in full force in courts not of record.

TONAWANDA, Oct. 13, 1879.

Yours,

To the Editor of the Albany Law Journal:

E. R.

SIR-I think the following a correct answer to the

communication of "N. F.," on the subject of exemptious from execution in your issue of 11th inst.:

The section of the Revised Statutes, relating to exemption from executions issued out of justices' courts, 2 R. S. 254, § 169, is left severely alone by Laws 1877, ch. 417.

Those provisions, as to exemption from execution, not originally contained in the R. S., which are revised in the new Code, and generally repealed in 1877, seem to be preserved, in respect of their application to inferior courts, by Laws 1877, ch. 417, § 3, part of subd. 6, which reads: "Nor does it (the repeal) affect any future proceeding taken, according to the existing laws, in such an action or special proceeding (i. e., in an action or special proceeding other than in one of the principal courts of record.")

SIR-The recent decision of the Court of Appeals in the matter of the Security Life Insurance and Annuity Company, directs that the life annuities of the company shall be valued by the Northampton Table of Mortality, and six per cent interest, as provided by the 76th Rule of the Supreme Court.

In making some valuations upon that basis for the Continental Life Insurance Company, I discovered some serious errors in the annuity table as published in the Rules of Court, and the Lawyer's Diary.

The annuities given for ages from 73 to 80, both inclusive, are wrong. They are in fact seven per cent annuities.

The true six per cent annuities are as follows:

Age 73, $5,004 instead of $4,781

In confirmation of my figures I refer to the standard works:

I Jones on Annuities, etc., page 245.
Life Tables of Mutual Life Ins. Co., page 13.

I found these errors as far back as the Rules of 1858,

and it may be there was some ancient reason for using seven per cent annuities at those ages. If not, the error should be corrected, and I presume the proper tribunal will be the Convention of Judges, directed to be held in section 17 of the new Code.

DETROIT, Oct. 13, 1879.

NOTES.

LEVI BISHOP.

THE ALBANY LAW JOURNAL is, in our judgment, at the head of legal journalism. Nowhere else do we find so much to instruct and delight the legal reader.- London Law Journal. In Atkins v. At

kins, Nebraska Supreme Court, Sept. 1879, the court laid down the important and novel doctrine that “An action for divorce is a proceeding in rem." This must have reference to those numerous cases where the wife calls the husband "a mean old thing."

The following, from the Solicitors' Journal, will cheer Mr. Hopkins on the jury question: "At an inquest at Hereford on Saturday on the body of a martime asked to be allowed to retire. They were then ried woman, the jury deliberated, and after a short taken in charge by the sergeant-at-mace and locked up. After half-an-hour's deliberation, a jury man came out with a verdict, which the coroner would not accept. The juryman: 'Do I understand that we are to stop here all night without meat, drink, or fire?' The coroner: Yes.' The juryman: Then, I think we are agreed.' Another half hour passed, and then a juryman said there were eleven for a verdict and one against. The coroner said they must carry the other man with them. At 9.40 P. M. the foreman said the

dissenting jury man would not give in-not if he stopped there a month. The coroner then called the jury in and pointed out the features in the evidence again. The eleven were now getting angry with the dissentient (Mr. Hart). A jury man: What do you think of it now, Mr. Hart?' Mr. Hart: 'I am of the same opinion as before.' The coroner: 'If there is no chance of your agreeing I must bind you over to appear at the assizes.' A juryman: 'We have decided by a majority before in this room.' Another: 'It has been done by tossing.' Mutual recriminations then took place, and the dissentient told the others, 'There are eleven dogs and one bone.' At 10.15 P. M. a compromise was effected, the eleven giving in to the one, and passing a verdict that deceased came to her death by spinal apoplexy, brought on by excitement; but the eleven added a rider to the verdict that the cause of death was the husband."

We have often heard of getting "the wrong pig by the ear," but just now in Georgia the danger is shown of getting the pig by the wrong ear. In Crenshaw v. State, Georgia Supreme Court, September 23, 1879, the indictment charged the stealing of "one blue hog; to wit: a sow weighing about 140 pounds, and having right ear and a smooth crop in the left ear." The dethe marks following, to wit: a swallow fork in the scription proved at the trial differed from the foregoing in two respects: first, the sow, though blue, had a narrow white list around her; and, secondly, the left ear bore the swallow fork, and the right the smooth crop. Held, that the narrow white list did not conflict with the general description as to color given in the indictment; but that the ear marks proved varied materially from those alleged, and for this reason the prisoner was improperly convicted. Though it was unnecessary to have described the animal by the ear marks, yet the descriptive terms of the indictment having gone to this extent, the burden was assumed of too much particularity is dangerous, as we have sev proving the specific marks alleged. So it seems that eral times recently noted in respect to the sexual variations of the horse.

The Albany Law Journal.

NE

ALBANY, NOVEMBER 1, 1879.

CURRENT TOPICS.

E sutor ultra crepidam is an excellent motto for all sorts of people, and especially for public persons. Two eminent public persons are just now in danger of suffering from a disregard of this injunction. One is Mr. Francis Parkman, historian. Mr. Parkman recently wrote in the North American Review on the Woman Question, taking the ground that women ought not to vote, make laws, hold office, or sit on juries. The consequence of this stepping aside from his customary historical path, and essaying the domain of state craft or politics, is that in the current number of the Review there are no less than five answers from that number of elderly ladies, namely: Julia Ward Howe, Thomas Wentworth Higginson, Lucy Stone, Elizabeth Cady Stanton, and Wendell Phillips. At the risk of being regarded as infringing our own text, we will venture the remark that we think Mr. Parkman will find it rather difficult to answer the elderly ladies on the suffrage question. Perhaps the best answer he could make-not a good answer in reason but | good in practice -- would be that the women do not want to vote, as is demonstrated by statistics in Massachusetts, where they have the privilege of voting for school officers. But while we are willing

to admit that there seems some natural reason in the argument that women should have a voice in making the laws which are to govern them, and in selecting their governors who are to enforce those laws, we do not concede that the same reasoning would operate to enable them to hold office, or to sit on juries, which are privileges not essential to their own protection, but which simply give them the power of governing or deciding on the legal rights of others. Women perhaps would vote and make laws about as intelligently as the mass of men, but they certainly have not and never can have the worldly experience of business affairs which would qualify them for jurors. To Mr. Parkman's very absurd argument that none should vote but those who can fight, Mr. Higginson answers that during the civil war "it was found that of 1,000 clergymen, 954 were physically disqualified from military duty; of the same number of journalists, 740; of physicians, 670; of lawyers, 544." This is a good showing for the physique of our profession. (We call ourselves a lawyer, not a journalist.) Possibly the further statement that a majority of tailors were found fit for duty- the tailor's bench thus being physically superior to the judicial should abate some of this pride. But we recuperate ourselves by the discovery that the bar of England are about to entertain General Wood, a lawyer of five years' standing, who with that small legal experience has been found instrumental in whipping Cetewayo. We are proud of our learned brother, the General. We scorn the observation of VOL. 20. No. 18.

The other public person who apparently disregards our text is Mr. Justice Field, of the Federal Supreme Court. That court have recently affirmed the constitutionality of the Thurman act, so called, in Union Pacific Railroad Co. v. United States. The precise question, as stated by the chief justice, was: "Whether a statute which requires the company in the management of its affairs to set aside a portion of its income as a sinking fund to meet the subsidy bonds and other mortgage debts when they mature, deprives the company of its property without due process of law, or in any other way improperly interferes with vested rights?" This is answered negatively. The court hold that the railroad company is subject to legislative control, so far as its business affects the public interests; that by the reservation contained in the chartering acts of 1862 and 1864, Congress retains full power to make such alterations and amendments of the charter as come within the just scope of legislative power. In so doing, it cannot undo what has already been done, nor unmake contracts which have already been made; but it may provide for what shall be done in the future, and may direct what preparation shall be made for the due performance of contracts already entered into. Justices Bradley, Strong and Field dissent. The latter thus delivers himself:

"The Central Pacific Railroad Company is a State corporation, and in creating it the State reserved the same control over it which it possesses over other railroad and telegraph companies created by it. It undertakes to control and manage it in all particulars required for the public service, and can there be any doubt in the mind of any one who has the least respect for the reserved rights of the State, that over its own creations the State has supreme authority? I confess that I am utterly at a loss to find where authority on the part of the United States to interfere with the State in this respect and to take such control from it is to be found, except in the theories of those who regard the general government as the all-controlling power of the nation, to which States, even in local matters, must bend. I cannot assent to any such theories. The government created by the Constitution left to the States the control of local matters, and it never entered into the conception of its framers that under it the creations of the States could be taken by it from in the matter. their control, and they left powerless and helpless The doctrines announced in the opinion of the majority of the court go further than any heretofore advanced, and any even thought possible in the history of the country, to destroy the independence of the States and establish their helplessness, even in matters of local concern, as against the will of Congress. He must be dull, indeed, who does not see that, under the legislation and the course of decision of late years, our government is fast drifting from its ancient moorings from the system established by our fathers into a vast centralized and consolidated government."

It seems to us that the legal question hardly called for this diatribe on State rights. Heaven forbid that the Supreme Court should again become a political arena! We say "again," for once it was. In the Dred Scott case a majority of the judges conceived that they could settle the troubles of the country by an obiter judicial repeal of the Missouri Compromise; an act which did more than any thing else to precipitate the rebellion, by inflaming Northern sentiment against the South. We would recommend to Mr. Justice Field a careful study of the private history of the Dred Scott case as narrated in Mr. Curtis' recent memoirs of Mr. Justice Curtis. If he thus lugs politics into a case where they do not belong, what may we not expect when the court come to the so-called political cases now pending before them? We do not learn that any of the other judges deemed this railroad case to involve the doctrine of State rights in its political sense, and it seems to us that the above peroration is not only unwise and unnecessary, but offensive to the other members of the bench. Ne sutor ultra crepidam.

A dreadful calamity has befallen England. Mr. Stockdale, the porter of the great seal, is dead. We are not informed that he took the seal with him, and so there will probably be no recurrence of the embarrassment which was felt in 1784, when the seal was stolen, and in 1688, when the fleeing James 2nd dumped it in the Thames. Mr. Stockdale also had charge of the wax for impressions of the seal. In his evidence before a recent commission he testified that it required about four hundred weight a month to do justice to the seal. The porter of the great seal attends upon the lord chancellor, transmits to him his official correspondence, and receives and posts his replies. As the seal is safe, and there is probably no "corner" in the wax market, and there are probably other gentlemen in the kingdom capable of carrying the seal, we shall confidently hope that England will weather the shock of losing the drum major of the governmental band.

Our readers will be gratified, we are sure, by the prospect of a new series of papers on a recondite branch of our State legal history, by Mr. Robert Ludlow Fowler, the introduction to which we published last week. Mr. Fowler has appropriated a most interesting and valuable territory, if not by conquest, by discovery and occupation, and will make it attractive and profitable. His former series of papers in this Journal elicited the highest praise from our most eminent lawyers and historical scholars. Our profession owe a sort of debt to men like Mr. Fowler who have the industry, self-denial, and intelligence to unearth and array our true legal history.

The judicial decisions of this country are constantly growing in respect abroad. Nearly every London legal exchange which we take up has references to our State decisions. For example, in the current Law Times, two of the current topics (for the excellence of which that journal is distinguished) are

on American cases; namely, the Connecticut case of Phoenix Mutual Life Insurance Co. v. Dunham, relating to rights of a divorced husband and wife in a policy on the husband's life for the benefit of the wife; and the Missouri case of the man who in his own house in self-defense killed another with a notarial seal. Opinions in full are frequently copied, as for example, the Massachusetts case of Milliken v. Pratt, 125 Mass. 374. The same may be said of our legal journalism. Our British exchanges frequently do us the honor of copying our leading and other articles, and a similar compliment is frequently paid to other American journals.

NOTES OF CASES.

HE recent case of Scaramanga v. Stamp, 4 C. P.

ing intrinsically, and as showing the respect for American admiralty law in England. The principle decided is that a deviation from a voyage for the purpose of saving life is justifiable, but not a deviation for the mere purpose of saving property. The defendant's ship was chartered by the plaintiffs to carry a cargo of wheat from Cronstadt to the Mediterranean, the usual perils of the sea excepted. While on her voyage she sighted and went to the assistance of a vessel in distress, called the Arion, and the master in consideration of £1,000 agreed to tow her into the Texel, which was out of his direct course. While so doing, defendant's vessel was stranded, and ultimately was totally lost with her cargo. Held, that the deviation not being necessary to save the lives of those on board the Arion, was unjustifiable, and the plaintiffs were entitled to recover the value of the cargo from the owners of the ship. Lindley, J., in pronouncing judgment, ob

served: "The above considerations show that the owner of the deviating ship is only exposed to risk without remuneration when no salvage is earned, but to protect him in these cases at the expense of owners of cargo and underwiters, namely, by increasing their risks without even the hope of remuneration, would be in the highest degree unjust to them. Moreover, it would be most dangerous to hold that masters of ships may for reward, or the hope of reward, deviate with impunity in order to save property. Such a doctrine would open wide the door for the entrance of fraud — would tempt masters to enter into secret agreements for their own benefit, and to conceal them if all went well, and if not, then to set up as an excuse for their conduct a deviation to save the property of others. The reasons against an extension of the doctrine of permitted deviation to save property appear to me far to outweigh the reasons in its favor. To permit deviation to save life is an anomaly justified by reasons which have no application whatever to deviation to save property, and on principle therefore I decline to extend the doctrine as desired by the defendant. I do this the more readily, as the propriety of so extending it has been considered before now, and been uniformly negatived by those who have had to consider it. I have, in order to decide this case,