2. The right of the importer to complain or appeal begins with the date of the liquidation, whenever that is made

DEBT.

The action of, lies for a statutory penalty. Chaffee & Co. v. United States, 516.

DECREE PRO CONFESSO.

On such decree for want of an answer, the only question for the consideration of this court on appeal is, whether the allegations of the bill are sufficient to support the decree. Masterton v. Howard, 99.

DEMURRAGE.

Demurrage charged against a vessel which had been condemned for collision with a ferry-boat, for the time that the ferry-boat was repairing, though her owners, a ferry company, had a spare boat which took the place on the ferry of the injured boat. The Favorita, 598.

DISCHARGED DEBT.

Nothing short of a clear, distinct and unequivocal promise will revive a debt discharged by the bankrupt act. Allen & Co. v. Ferguson, 1.

DOWER.

The release of a woman's right of, is a good consideration for the payment of money, or promise of payment of it to her separate use; and even where the woman probably or certainly has, in reality, under the statutes of the place where she lives, as judicially expounded, no right of dower, still if a deed of relinquishment by her be thought so necessary by a purchaser of property from the husband, that the purchaser will not take the title without such relinquishment, her execution of the deed is a good consideration for such payment, or promise to pay. Sykes v. Chadwick, 141. EQUITY.

1. An assignment of a debt carries with it, in equity, an assignment of a judgment or mortgage by which it is secured. Batesville Institute v. Kauffman, 151.

2. Where a trustee is dead, the trust being still alive and unexecuted, a court of equity will carry it out through any other appropriate person in whom the control of the property may be; or, if necessary, through its own officers and agents, without the intervention of any trustee. Ib.

1. The testimony of a wife and daughter, undertaking to swear from mere memory after a lapse of five or six years, as to which of one or two particular years (as ex gr., whether 1865 or 1866) they saw a particular paper in, discredited; there being circumstances leading to the inference that they were mistaken as to the year; and the purpose of the suit which their testimony was brought to sustain being to disturb, in favor of the husband and father, after a lapse of nearly five years, and after the death of one of the opposite parties to it, a settlement apparently fair. Willett v. Fister, 91.

2. The act of Congress of July 2d, 1864, which says that there shall be no exclusion of any witness in civil

actions because he is a party to or interested in the issue tried does not give capacity to a wife to testify in favor of her husband. Lucas v. Brooks, 436.

3. Where, on a suit to recover a balance of a draft claimed, because consignments of cattle against which the draft was drawn have not proved adequate to protect it, the question is whether the draft was drawn under a letter of instructions and in behalf of the doings of another person, one T., an agent of the drawees, or whether it was drawn by the drawer in behalf of transactions on his own account, a letter from the drawer in which he says, "I ship you twelve cars of cattle. I may buy some more before Mr. T. gets back. Do the best you can," is admissible evidence against him to show that it was on his own account. Mulhall v. Keenan, 342.

4. When a letter of instructions told the person to whom it was written to draw "when there is a sufficient margin," evidence as to the fact whether there was sufficient margin or not is clearly admissible, on a suit against the drawee of the bill, as an acceptor in advance, unless there be something special to render it not so. Ib.

5. The fact that a bill of particulars filed with the declaration is made up of the debit of the draft sued on, sundry credits and the balance claimed does not tend so clearly to show that the only question which the plaintiff meant to raise was whether the transaction was one on account of T., or an individual one, as that he may not, admitting that the transaction was on account of T., give evidence to show that the recipient of the letter had not obeyed his instructions to draw only when there was a sufficient margin. Ib.

6. Entries in the defendant's own books, whose purport was to show the transaction on account of T., are not admissible. Ib.

7. The general rule which governs the admissibility of entries in books made by private parties in the ordinary course of their business, requires that the entries shall be contemporaneous with the facts to which they relate, and shall be made by parties having personal knowledge of the facts, and be corroborated by their testimony, if living and accessible, or by proof of their handwriting if dead, or insane, or beyond the reach of the process or commission of the court. Chaffee & Co. v. United States, 516.

8. Copies of records appertaining to the land office, certified by the register of the district where the lands are, are evidence in Mississippi. Best v. Polk, 112.

EX TURPI CAUSA NON ORITUR ACTIO.

1. When a collector of internal revenue in a rural district of Mississippi - where, owing to the lawless condition in which the rebellion, then but recently suppressed, had left the region, it was not safe to have gold and silver in one's house - in violation of the provisions of the Independent Treasury Act, but with an apparently good motive-openly and without indirection, and because he thought it more safe thus to act than to take gold and silver- took in payment of taxes on cotton, accepted drafts drawn by the shippers of it on consignees of it in New Orleans (which was the place of deposit for taxes collected in Mississippi), afterward (the drafts not being paid, and he having in his accounts with the government charged himself and been charged by it with the tax as if paid in gold and silver), sued the acceptors, the fact that in taking the drafts instead of gold and silver, he had acted in violation of the statutes of the United States, does not

meeting, and Charles Daniels was elected as secretary. A quorum not being present, it was moved and seconded that a committee of five be appointed by the chair to report such changes in the rules as may be deemed to be necessary or expedient, and report thereon at the time to which the present meeting may be adjourned.

The chair appointed as such committee, Justices Noah Davis, Joseph F. Barnard, Joseph Mullin, Augustus Bockes, and Chief Justice C. L. Monell, of the Superior Court of New York city, as such committee.

It was then moved, seconded and carried that the meeting adjourn to meet again at the Capitol, in the city of Albany, on the fourth Tuesday of November next, at 10 o'clock in the forenoon. Dated Albany, August 5, 1874.

THEODORE MILLER, President.

CHARLES DANIELS, Secretary.

BOOK NOTICE.

The Lives of the Chief Justices of England, from the Norman conquest till the death of Lord Tenterden, by John Lord Campbell, LL. D., F. R. S. E., author of "The Lives of the Lord Chancellors of England." Third edition. In four volumes. London: John Murray. Boston: Little, Brown & Company, 1874.

We have delayed noticing these volumes for some time in the hope that we might find leisure to speak fully of their contents and to notice some of the more interesting features of the principal personages of which they treat, but the press of other duties has thus far prevented that, and we must content ourselves for the present with a brief notice.

This edition is in four volumes, crown 8 vo., and is, in all respects, one of the very best that we have seenthe type is clear and of good size, and the paper of excellent quality.

Every lawyer and law student should read Camp

bell's "Lives of the Chief Justices." The records of men who have trod the upper heights of the law are always helpful, if for no other reason, by way of example, to those who are following below. To read of the studies, the labors, the difficulties and the triumphs of such men is to the ambitious lawyer or student like the touch of mother earth to Autæus in his struggle with Hercules. And while there were among the wearers of the "Collar of S. S.," men, whose lives are neither helpful nor inspiring, there were many others of whom it is good to read. And not only should these books be read in this regard, but also as forming an important part of the history of the English law the source from which ours was drawn. As a biographer Lord Campbell holds a high rank, and, while his subjects had about them very little of the dramatic, the easy and animated flow of the narrative and the happy management of details make his books as interesting as a novel.

Lord Jerviswoode has resigned his judgeship in the Scotch Court of Session, and Mr. Millar, the solicitorgeneral, has been appointed to the vacancy.

Governor Talbut, of Massachusetts, has made the following appointments: Dr. Nathan Allen, of Lowell, and Wendell Phillips, of Boston, commissioners of lunacy; Henry G. Crowell, of Boston, commissioner of prisons; and Professor Julius H. Seelye, of Amherst, James M. Barker, of Pittsfield, and Thomas Hills, of Boston, as a commission to revise the laws relating to taxation.

CORRESPONDENCE.

NEW YORK, August 3, 1874.

Editor of the Albany Law Journal:

DEAR SIR-The article in the issue of August 1, entitled "Legal Custodian of Deceased Bodies; Who is?" (first published in the Am. Civil Law Journal, vol. i, p. 88) deals with an interesting question, seldom presented to the consideration of courts. The cases cited, however (unless we may except Wynkoop v. Wynkoop), go no further than to show in the language of Judge Pratt in Secor v. Secor, who is entitled to the remains so as to direct and control their place of interment, leaving untouched the further question whether the executor, widow or widower, after having interred the remains has such a control over them as to be entitled to change the place of burial, or, in other words, whether this right to control the disposition of the remains ceases on interment. E. S. C.

Yours,

LEGAL NEWS.

Chief Justice Waite is in Toronto, Canada.

Mr. David Dudley Field has returned to New York from his "tour around the world."

Mr. Justice Gilbert, of the Supreme Court of this State, is spending the summer at the White Mountains, and Mr. Justice Ingalls at Block Island.

Major Asa Bird Gardner, judge advocate, has been assigned to duty as professor of law at the West Point Military Academy.

The attorney-general has received and accepted the resignations of J. Newton Temple, district attorney

for the Western District of Arkansas, and John A. Minnis, district attorney for the Northern District of Alabama.

Mr. William H. Clifford, of the Portland bar, and son of Judge Nathan Clifford, of the Supreme Court of the United States, has declined the nomination of the democrats for congress in the first Maine district, on account of professional duties.

J. F. Evans has been directed by the secretary of the treasury to prepare for publication a digest of the decisions of the treasury department as to the rates of duties chargeable under existing tariff laws of the United States. Mr. Evans is attached to the secretary's office, and has been selected owing to his peculiar fit'ness for the performance of the work.

A recent issue of the Utica Herald contains a letter written by the late Chief Justice Chase in March, 1870, to a gentleman in Rome, this State, who had expressed his approval of the legal tender decision. After thanking the writer for his letter, the Chief Justice continued: "You are quite right in thinking that the approbation of my fellow-citizens is not ungrateful to me, but I know how many condemn what others approve, and I find my chief source of satisfaction in the consciousness that in my whole public action, both before and since I have occupied a seat upon the bench, my highest wish has been to obtain the approval of my own conscience and that of Him who searches all hearts. You have doubtless noticed the rumor that the court, as now constituted, will reverse the decision which you approve. I shall deeply regret it."

All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

the capacity of the defendant to distinguish between right and wrong at the time of and with respect to the act which is the subject of inquiry," and that "the

The Albany Law Journal.

ALBANY, AUGUST 15, 1874.

INSANITY.

We remarked a few weeks since upon the growing tendency, among lawyers and physicians, to soften the rigors of the ancient rules respecting insanity when pleaded in excuse of crime. We traced the modifica tions of the law, from the period when a man was held responsible for his actions, unless he was totally devoid of sense and knew no more what he was doing than a wild beast, to the time when the ability to distinguish between right and wrong was adjudged the criterion; and finally noted the recent disposition in some quarters to add to this the power of controlling the actions of the mind, as a necessary ingredient of moral responsibility.

We wish now to call attention to the present condition of the law on this point in our own State. It must be admitted, not only that there seems no inclination in our highest tribunals to sanction the innovation which many eminent physicians and some highly respectable courts of sister States have approved, but that the ruling is unquestionably in the other direction. The rule which was laid down by the English judges, in their answers to the House of Lords, was expressly adopted by our Court of Appeals, in the case of Willis v. People, 32 N. Y. 719, where that eminent lawyer, Judge Denio, stated the rule to be, that "if the prisoner, when he killed the deceased, was in such a state of mind as to know that the deed was unlawful and morally wrong, he was responsible, and otherwise he was not." We should be better pleased with that authority, if that distinguished jurist had bent to the discussion of this serious question, those mental powers which have illuminated so many intricate problems in our jurisprudence. But Judge Denio did not deem it worth while to advance any better reason for so holding, than that it had been so held too long to be questioned. This, to our mind, is one of the most inconclusive of reasons. We are so irrational that we could never see why an error is any more respectable for being old.

But the question came up again, and was only a little less summarily disposed of in the same court, in Flanagan v. People, 52 N. Y. 468. Judge Denio, in the case of Willis, argued the point to a stand-still in twenty lines, but in the case of Flanagan, Judge Andrews gives it an exhaustive examination of two pages, and comes to the same conclusion. He says: The test of responsibility for criminal acts, where unsoundness of mind is interposed as a defense, is

66

notion of an irresistible impulse to commit it, where the offender has the ability to discover his legal and moral duty in respect to it, has no place in the law." The judge should have added, "of this State;" and then he would have been strictly correct. Judge Andrews, however, adduces some reasons for his belief. He says one objection to the doctrine argued for, is the "vagueness and uncertainty of the inquiry which would be opened." Really, does it not seem difficult to point out how the inquiry would be rendered any more vague and uncertain by the reception of this new element into its consideration. Every thing is vague and uncertain to a great extent in these inquiries, and from the nature of the human faculties must always so remain. Now it seems to us, if such light may be shed upon a given case, as to render the impression that the prisoner is guilty more vague and more uncertain, that it is our business not to shut our eyes to such light, but to accustom ourselves to the new atmosphere. The "wild-beast" theory of responsibility was much less vague and uncertain than the "right and wrong" theory which has supplanted it, but we do not remember that this was ever advanced against the adoption of the latter. It would doubtless be the simplest way of all, to hang every one who commits a homicide without regard to his mental condition, but we believe it is agreed that it would hardly be right or indeed politic to do God has put these problems into our hands for such solution as our narrow faculties will allow, and we ought to use those faculties to the utmost in the work, and not shirk it because it is difficult or because we see that it is growing more difficult. But again, says Judge Andrews: "Indulgence in evil passions weakens the restraining power of the will and the conscience; and the rule suggested would be the cover for crime and its justification." We have no objection to the first branch of this sentence as a proposition, but we object to the application which the writer makes of it. The difficulty seems to us to be that the court while enunciating correct general principles apply them to the wrong case; that they assume that a man, without any symptoms of mental disorder, indulges his evil passions, and then claims that the habit has grown omnipotent in his nature, and that he ought not to be amenable for its consequences. But this is not what we are contending for. We are thinking of a man who has exhibited unequivocal indications of a diseased mind, and a feeble will, and in that state commits a crime. This man, we say, if he had not will enough to control his actions, is not to be punished although he knew that he was doing wrong. The Court of Appeals hardly mean to say, we suppose, that "indulgence in insanity weakens the restraining power of the will and the

So.