Re

and deportment may work injury as deplorable as violence to the person. 'I will speak daggers to her, but use none,' says Shakespeare. Temperament and character so widely differ that conduct cruel to one might scarcely annoy a more callous nature. Having in mind the sacred character of the marital relation, and its influence on the happiness and purity of society, as well as upon individuals, not overlooking considerations, that may not be freely discussed, each particular case must be judged of by its own particular facts and circumstances. Divorce should not be a panacea for the infelicities of married life; if disappointment, suffering and sorrow even be incident to that relation, they must be endured. The marriage yoke, by mutual forbearance, must be worn, even though it ride unevenly, and has become burdensome withal. Public policy requires that it should be so. move the allurements of divorce at pleasure, and husbands and wives will the more zealously strive to even the burdens and vexations of life, and soften by mutual accommodations so as to enjoy their marriage relation. Deplorable as it is, from the infirmities of human nature, cases occur where a willful disregard of marital duty by act or word either works or threatens injury so serious that a continuance of cohabitation in marriage cannot be permitted with safety to the personal welfare and health of the injured party. Both a sound body and a sound mind are required to constitute health. Whatever treatment is proved in each particular case to seriously impair, or to seriously threaten to impair, either, is like a withering blast, and endangers life, limb or health,' and constitutes the (sixth) cause for divorce in the act of 1883. Such is the weight of authority. Bailey v. Bailey, 97 Mass. 373; Lyster v. Lyster, 111 id. 327; W- V. W, 141 id. 495; Evans v. Evans, 1 Hagg. Com. 35; Kelly v. Kelly, 2 Prob. Div. 31; Kennedy v. Kennedy, 73 N. Y. 369; Morris v. Morris, 14 Cal. 76; S. C., 73 Am. Dec. 618, and cases cited in note. The case comes up on demurrer to the libel. That charges that the libelee has for a long time refused her bed to the libelant, and has invariably slept apart from him without cause; that she has continuously charged him with infidelity without cause, and this too in the presence of their minor children, and sometimes in the presence of their servant; that she has sought to alienate the affections of their children from him; that she has studiously avoided his society; that she has lost all interest in his welfare, and ceased to perform any wifely act; that his home has thereby become so unhappy that existence in it is unsupportable, whereby his peace of mind has become so affected as to endanger his health. No one allegation in the libel has been held to constitute legal cruelty, save that of infidelity. The charge, when falsely and maliciously made, has been often held to constitute cruelty when accompanied by acts of violence, or reasonable apprehension thereof. But few cases have been found that held the false charge of infidelity to be legal cruelty, and these were mostly adjudged in

western States. If the Legislature had intended in the act of 1883 to constitute the false charge of adultery a cause for divorce when taken by itself, it is reasonable to suppose that it would have so named it, inasmuch as the act of adultery is declared to be such cause. The libel charges the effect of the combined allegations to be physical injury. The demurrer is general, and does not reach a want of particularity in such allegation, so that such effect must be considered as flowing from the preceding allegations in the libel; nor is it a conclusion that cannot be said to necessarily or logically flow therefrom, because it is the averment of a fact that may or may not result from the conduct of the libelee charged in the libel. Here the fact is averred to exist, that of conduct which seriously injures, or threatens to injure and impair physical health. The libel is sufficient." To the same effect, Kelly v. Kelly, 18 Nev. 49; S. C., 51 Am. Rep. 732; and note, 736; Palmer v. Palmer, 45 Mich. 150; S. C., 40 Am. Rep. 461; Carpenter v. Carpenter, 30 Kans. 712; S. C., 46 Am. Rep. 108. Curiously enough, most of these are cases of accusations of infidelity made by the wife.

In connection with the boodle aldermen cases it will be interesting to read State v. Maney, Connecticut Supreme Court of Errors, Sept. 11, 1886, on the question of corroboration of accomplice testimony. The court said: "The prisoner was charged with arson. The principal witness against him was Matthew Frawley, who testified that he burned the farm, having been hired to do so by the prisoner; that he spent the greater part of the day at his house; that in the evening he took him into his cellar, proposed to him that he burn the barn, and furnished him with some whisky and with a bottle partly filled with kerosene oil; that he took the oil from a barrel nearly empty, so that he had to tip the barrel, and then could not fill the bottle; that he fired the building without using the oil, and subsequently threw it away, describing the place. He also described the cellar minutely, and as it appears by the testimony of other witnesses, correctly. The bottle was found by an officer in the place pointed out by the witness, and was as described by him. It was produced in court and identified by him. The production of the bottle in court, and its identification by the witness, with the testimony as to the finding of it, and as to its condition, were objected to, but admitted. The first question in the case is whether they were properly admitted. The rule is that an accomplice ought to be corroborated as to some fact tending to connect the prisoner with the offense. The question now raised, in one aspect of it at least, is whether it is error to allow the attorney for the State to corroborate his evidence as to a fact which is in issue, but which does not inculpate the prisBut the credibility of such a witness is for the jury as to all that he says. Hence any fact or circumstance which tends to corrobor

oner.

** * **

ate in a slight degree any part of his testimony is admissible. It was so held in State v. Wolcott, 21 Conn. 272. In that case the accomplice detailed two conversations which he had with the prisoners, or one of them, in which they related to him conversations which they had with third parties. The third parties were admitted to testify that they in fact had such conversations, although there was nothing in either conversation in itself which tended to criminate the prisoners. The court, by Church, C. J., say they 'showed a privity and connection, and a conspiracy between Dickerman and the prisoners,' and that Dickerman was their confidant to whom they imparted their plans and their movements as he had testified.' Still, all the inculpating testimony came from the accomplice, so that the case is an authority for holding that he may be corroborated as to any material fact in issue, although that fact does not connect the prisoner with the offense. In that case, as in this, there was other corroborating evidence which did not inculpate the prisoners. In that case it was not held, and we do not hold in this, that corroboration as to facts which do not inculpate the prisoner will be sufficient, but simply that evidence which corroborates as to any fact in issue is admissible for what it is worth. Bish. Crim. Proc., § 1170, says: "Not inconsistently with these views it is permissible also to submit to the consideration of the jury evidence tending to show the accomplice's probable credibility in his narration, though coming short of the required corroboration.' But we cannot say that the evidence objected to in this case has no tendency to connect the prisoner with the crime. The witness was corroborated as to the cellar, its condition and things in it, particularly as to the bottles and the barrel of kerosene oil. The fact that the bottle of oil was found in the place he pointed out shows that he had it as he said he had, and that fact in connection with the fact that there was on that day an empty barrel from which a small quantity of oil could be taken by tipping it, and that there were also in the cellar empty bottles of similar size and shape, render it probable that he got the oil at the time and place named. The fact being established that he had the bottle of oil, and that he got it in the prisoner's cellar, the inquiry is a pertinent one of whom did he receive it, and for what purpose? In answer to these questions the accomplice says he received it of the prisoner, and for the purpose of firing this barn. And here he is corroborated by the prisoner's declarations made to the detectives. The testimony of the detectives however goes further than that, and if believed by the jury, fastens the crime upon the prisoner. The question is not therefore whether this evidence is admissible as supplying the corroboration which the evidence of an accomplice needs at a point which connects the prisoner with the crime, for the corroborating evidence of that character had already been furnished; but whether the testimony of an accomplice may be corroborated in other and minor points, which do not, taken by

themselves, touch the prisoner. And this is a question not arising under the law peculiar to accomplices, but under the general rules of evidence with reference to witnesses who from any cause stand before the jury with their credibility seriously impaired. Thus, suppose doubt were thrown upon the whole story of the accomplice, and it was claimed by the defense that he did not set the barn on fire, would it not on general principles be admissible to prove, by a person who saw him do it, that his story was true? And yet this would not connect the prisoner with the crime." See Current Topic, ante.

BANKS-NATIONAL-TRANSFER OF STOCK-IN. DIVIDUAL LIABILITY.

SUPREME COURT OF THE UNITED STATES, NOVEMBER 1, 1886.

WHITNEY V. BUTLER.

In an action against the executors of a deceased shareholder of a national bank to hold the estate liable for debts of the bank, which had become insolvent, it appeared that the defendants had before the failure of the bank sold the stock and received the pay for it, and surrendered the certificates and power of attorney for transfer to the president, who knew all the facts and the name of the purchaser, but who neglected to make the transfer on the books of the bank. Held, not maintainable.

N error to the Circuit Court of the United States for the District of Massachusetts. The opinion states the case. The plaintiff had judgment be

low.

HARLAN, J. The plaintiffs in error are the personal representatives of Leonard Whitney, who at the time of his death held two certificates for fifty shares each of the capital stock of the Pacific National Bank of Boston. That bank suspended on November 18, 1881, and from that date until March 18, 1882, was in charge of an examiner of national banks. On the day last named, with the permission of the comptroller of the currency, it resumed business and so continued until May 20, 1882, when it failed, and was placed by that officer in the hands of a receiver to be wound up. At the time the receiver took possession, as well as when this action was brought, March 14, 1883, the above shares of stock stood in the name of Whitney on the books of the bank.

This suit was brought against the executors of Whitney, pursuant to the orders of the comptroller of the currency. It is based upon those provisions of the statute, which declare that the shareholders of national banking associations shall be individually responsible, equally and ratably, and not one for another for all contracts, debts, and engagements, to the extent or amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares; and that estates and funds in the hands of executors of persons holding stock shall be liable, in like manner and to the same extent, as the testator would have been if living. Rev. Stat., §§ 5157, 5152. The assessment by the comptroller upon shareholders to meet the bank's debts was for the full amount authorized by the statute.

The defendants insist that they were not shareholders of the bank, and did not hold, nor were entitled to hold any certificates of shares of its capital stock, either at the date of its suspension, or when the receiver was appointed, or when the assessment was made by the

comptroller. This defense was overruled, and the executors of Whitney were adjudged to be liable, the Circuit judge observing: "This being a suit brought by the receiver, who represents the creditors, and it appearing that the stock was not transferred on the books of the company, as provided by the by-laws, we think the defendants liable."

The question before the court is whether, under the statute and the facts specially found, the defendants were liable to be assessed for the contracts, debts and engagements of the bank. The statute declares that the capital stock of a national bank shall be transferable on its books in such manner as may be prescribed in the by-laws or articles of the association-every person becoming a shareholder by such transfer succeeding, in proportion to his shares, to all the rights and liabilities of the prior holder. Rev. Stat., § 5189. The by-laws of this bank provide that its stock should be assignable only on its books, subject to the restrictions and provisions of the statute; that a transfer-book be kept, in which all assignments and transfers of stock should be made; that each certificate should state upon its face that the stock is transferable only on the books of the bank; and that when a transfer is made the certificate shall be returned and cancelled, and a new one issued. Whether these by-laws were so far complied with as to release the defendants as executors from the liability imposed by statute, depends upon the effect to be given to certain acts of the executors and of the president of the bank in connection with the sale of the stock standing in Whitney's name.

It appears from the special fluding of facts that Abner Coburn, of Maine, desiring to buy two hundred and fifty shares of the stock of this bank, made a special deposit in it of $25,000 to be applied for that purpose. This fact appears from a letter addressed to him by Benyon, the president of the bank, under date of September 21, 1881, in which the latter said: "Yours of 20th received with check $25,000, which we will use pending the purchase of our stock, and will hold on your account, as a special deposit, securities to the same amount, till we succeed in making the purchase. This leaves the amount in your control until invested, and I trust, will be satisfactory to you." That the stock might be obtained, Benyon secured the services of one Eager who had a deposit account with the bank, and that the latter might have money with which to buy the stock, Benyon placed to his credit, as a temporary loan, out of the funds of the bank, the exact amount required for the purchase.

On November 8, 1881, the defendants--having no reason whatever to believe that the bank was insolyent, or was about to become so, on the contrary, believing it to be solvent, and having no information as to Coburn's order-placed the certificates held by them in the hands of Day & Co., brokers, with directions to sell the stock. They also placed in their hands a power of attorney in the form usually adopted for transfers of stock. It was blank as to the names of the attorney and the purchaser, but was signed by the executors and duly witnessed. It was in these words: "Know all men by these presents, that for value received, we, the executors of the estate of Leonard Whitney, of Watertown, do hereby make, constitute, and appoint, irrevocably, -true and lawful attorney (with power of substitution), for and in our name and our behalf to sell, assign, and transfer unto one hundred shares, now standing in the name of L. Whitney, of Watertown, Mass., in the capital stock of the Pacific National Bank; and said attorney is hereby fully empowered to make and pass all necessary acts for the said assignment and transfer. ness our hands and seals." To that power of attorney was appended the following:

Wit

[Seal.]" The other papers were the two certificates of stock and the certificate from the proper Probate Court, showing the appointment and qualification of the defendants as executors. Each stock certificate contained the following words: "Transferable only on the books of the said bank, in person or by attorney, on surrender of this certificate."

On November 12, 1881, Day & Co. offered the stock for sale at public auction, and the same was, at Benyou's request, bought by Eager at the sum of $10,400. Three days thereafter, November 15, 1881, Eager offered to the brokers in payment for the stock his check on the Pacific National Bank. The bank at which the brokers did business declined to take that check in its deposit account. Benyou being informed of that fact, substituted for the check of Eager a cashier's check on another bank, which last check being paid, Day & Co., with the knowledge of Eager, delivered to Benyon, the president of the bank, the foregoing certificates of stock, with the power of attorney, the certificate from the Probate Court, and other papers-he thereafter holding the same as purporting to be security for, and as representing said loan, awaiting the filling of Coburn's order, with the design then to have the stock transferred to him as soon as his order had been filled." On the 16th of November the defendants received from the brokers the proceeds of the sale of the Whitney stock. Benyon obtained only fifty additional shares, for the purpose of filling the, order of Coburn. All this happened before the bank suspended on November 18, 1881.

The executors of Whitney did not know by whom the stock was bought at the auction sale, unless the knowledge of the brokers is to be imputed to them. Believing in good faith, and having no reason to doubt that the purchaser had caused the transfer to be made, neither they nor the brokers took steps to ascertain whether it had in fact been done.

They had no knowledge or information until after the appointment of the receiver as to the purpose for which either Benyon or Eager held the before-mentioned papers or the stock.

While the bank did not purchase nor intend to purchase the stock for itself, its president, in execution of Coburn's order, procured Eager to buy this stock with funds furnished him for that purpose. Coburn did not take it; and the receiver, after he took possession, found the before-mentioned papers in an envelope purporting to represent a security for a demand loan to Benyou.

We do not think that the question arising upon these facts is concluded by any of the cases cited in the opinion of the Circuit judge (Davis v. Society of Essex, 44 Conn. 582; Adderly v. Storm, 6 Hill, 624; Anderson v. Philadelphia Warehouse Co.. 111 U. S. 479, 483; Johnston v. Laflin, 103 id. 800, 804; Turnbull v. Payson, 95 id. 418; Brown v. Adams, 5 Biss. 181), or in those cited in the brief for the receiver. Davis v. Stevens, 17 Blatch. 259; Irons v. Manf. Nat. Bunk, 27 Fed. Rep. 591; Bowdell v. Nat. Bank, Browne's Nat. Bank cases, 146. In nearly all of them, where the is sue was between the receiver, representing the creditors, and the person standing on the register of the bank as a shareholder, it is said, generally, that the creditors of a national bank are entitled to know who, as shareholders, have pledged their individual liability as security for its debts, engagements, and contracts; that if a person permits his name to appear and remain in its outstanding certificates of stock, and on its register, as a shareholder, he is estopped, as be

tween himself and the creditors of the bank, to deny that he is a shareholder; and that his individual liability continues until there is a transfer of the stock on the books of the bank, even where he has in good faith previously sold it and delivered to the buyer the certificate of stock, with a power of attorney in such form as to enable the transfer to be made. Some of the cases hold that the seller is liable as a shareholder even where the buyer agreed to have the transfer made on the books of the bank, but fraudulently or negligently failed to do so. But it will be found, upon careful examination, that in no one of the cases in which these general principles have been announced, as between creditors and shareholders, does it appear that the precaution was taken, after the sale of the stock, to surrender the certificates therefor to the bank itself, accompanied (where such surrender was not by the shareholder in person) by a power of attorney, which would enable its officers to make the transfer on the register. The position of the seller, in such case, is analogous to that of a grantor of a deed deposited in the proper office to be recorded. The general rule is, that the deed is considered as recorded from the time of such deposit. 2 Washb. Real Prop. B. 3, ch. 4, T 52. Where the seller delivers the stock certificate and power of attorney to the buyer, relying upon the promise of the latter to have the necessary transfer made, or where the certificate and power of attorney are delivered to the bank without communicating to its officers the name of the buyer, the seller may well be held liable as a shareholder until, at least, he shall have done all that he reasonably can do to effect a transfer on the stock register.

In the case before us the personal presence of the defendants at the bank was not required in order to secure their release from liability as shareholders. Besides the certificates of stock authorized them to act by attorney. Through their agents, the brokers, who sold the stock, and through whom they received the money paid for it, they surrendered the certificates and power of attorney to the president of the bankhe receiving them, with knowledge not only that defendants had parted with all title to the stock and had been paid for it, but also that it had been purchased at public auction by Eager. He knew equally well that the surrender of the certificates and the delivery of the power of attorney and the certificate from the Probate Court could only have been for the purpose of having it appear, by means of a transfer on the books of the bank, that Whitney's executors were no longer shareholders.

The right to have the transfer made, and thereby secure exemption from further responsibility, was secured to the defendants both by the statute and by the by-laws of the bank. They did all that was required by either as preliminary to such transfer. Nothing remained to be done except for some officer of the bank to make the necessary formal entries on its books. If, when the agents of defendants deliv

It was suggested in argument that the defendants should have seen that the transfer was made. But we were not told precisely what ought to have been done to this end that was not done by them and their agents. Had any thing occurred that would have justified the defendants in believing, or even in suspecting, that the transfer had not been promptly made on the books of the bank, they would perhaps have been wanting in due diligence had they not, by inspection of the bank's stock register, ascertained whether the proper transfer had in fact been made. But there was nothing to justify such a belief or to excite such a suspicion. Their conduct was, under all the circumstances, that of careful, prudent business men, and it would be a harsh interpretation of their acts to hold (in the language in some of the cases, when considering the general question under a different state of facts) that they allowed or permitted the name of Whitney to remain on the stock register as a shareholder. We are of opinion that within a reason. able construction of the statute, and for all the objects intended to be accomplished by the provision imposing liability upon shareholders for the debts of national banks, the responsibility of the defendants must be held to have ceased upon the surrender of the certificates to the bank and the delivery to its president of a power of attorney sufficient to effect, and intended to effect, as that officer knew, a transfer of the stock on the books of the association to the pur chaser.

For the reasons stated, the judgment is reversed, and the cause remanded, with directions to enter a judgment for the defendants.

Reversed.

CONTRACT-FORFEITURE-WORDS OF LIMITATION AND CONDITION.

NEW YORK COURT OF APPEALS, OCTOBER 5, 1886.

LYON V. HERSEY.

In the construction of all contracts under which forfeitures are claimed, is is the duty of the court to interpret them strictly in order to avoid such a result, for a forfeiture is not favored in the law.

While no particular form of words is necessary to create a limitation or condition, it is yet essential that the intention to create them shall be clearly expressed in some words importing ex vi termini that the vesting or continuance of the estate or interest is to depend upon a contin gency provided for.

When the contract contains no express words importing a limitation or condition, if it be held to contain either, it must be inferred from some supposed intention of the parties drawn from other provisions in the contract or from the nature of the act provided for, or the circumstances surrounding the subject of the agreement.

tion to annul an executory contract. The facts fully appear in the opinion.

C. D. Adums, for appellant.
Francis Kernan, for respondent.

RUGER, C. J. The complaint in this action was framed to procure a decree annulling an executory contract between certain of the plaintiffs as executors of the estate of Lyman R. Lyon, vendors, and the firm of C. J. Lyon, as vendees, for the sale of the hemlock bark on the Brantingham tract in Lewis county, and to determine the ownership of that portion of such bark as was then cut, but not removed from the premises. The action is based upon the claim that the destruction of the Moose river tannery rendered