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a new trial of the suit in which his former wife obtained the decree of divorce, on the grounds, first, that no proof of publication was ever filed in the case; second, that the defendant never had notice of the pending suit; and third, that he will be able to show that Mrs. Calhoun committed perjury, as a witness in the case.

The English courts have recently dismissed the Mordaunt divorce case, on the ground that the defendant, being insane, could not plead; and now that McFarland has succeeded in establishing his insanity, we should be glad to see this rule of law applied to his case.

It is a rather singular fact that no provision is made by the law of this state, whereby one injured on a highway or bridge, through the neglect of town officers to keep the same in repair, can recover compensation for his injuries. The law makes it the duty of commissioners of highways to repair and keep in order roads and bridges, but it is a matter of grave doubt, under the decisions, whether the duty is of such a nature as to render them liable, in any event, to a civil action for a neglect of it. They are certainly not liable, where it is not shown that they have the requisite funds to repair. And even where they have such funds, it has been intimated, by the highest legal authorities in the state, that no liability attached. That towns are not liable, civilly, for injuries received by reason of the ruinous condition of their highways has been settled beyond question. The wayfarer is, therefore, left to run his own risks, and trust in Providence. It would be well if our legislators, who have such an 66 insane impulse" to "make laws," would make a law whereby towns should be held to a strict accountability, both civilly and criminally, for the condition of their highways.

The house of representatives have refused to concur in the senate's amendment to the appropriation bill, increasing the salary of the United States judiciary. The majority against the amendment was so large that a conference of the committees of the two houses will not be likely to effect a compromise, and the salaries will remain as at present. We regret this action of the house, as we were hopeful that the time had come when, at least, the judges of the supreme court would receive something like an adequate compensation. We should be glad to see the salary of the chief justice raised to $20,000, and that of the associates to $17,000. The ability and industry which those positions require would enable any lawyer possessing them to make at least that sum in the ordinary practice of the law in one of our larger cities. It seems to us a little anoma lous that while such men as

Charles A. Dana, Horace Greeley, George W. Curtis, Theodore Tilton, and other editors of newspapers, receive salaries of from ten to fifteen thousand dollars per year from private corporations, forty millions of people can only pay half that sum to the judges of the highest and most important tribunal in the country.

A case came before Judge ALLISON, of the Philadelphia court of quarter sessions, on the 11th inst., which raised an interesting question relative to the

effect to be given to the statutes of the state of New York. One Rodan was charged with having committed adultery and bigamy. It appeared, on the trial, that he had been married some years ago in New York; that about a year ago he left his wife, and, in company with one Mary Tully, went to Philadelphia, where they have since continued to reside. Meanwhile, Rodan's wife had procured a divorce in New York on the ground of adultery. Subsequent to the decree of divorce, Rodan married the woman with whom he had absconded. The court was in doubt whether or not it could give effect to the New York statute, which declares that where a divorce is obtained on the ground of adultery, the guilty party shall not marry during the life-time of the other party. The crime of adultery is not indictable or punishable in the state of Pennsylvania, unless the offense is committed within its jurisdiction, and there was no evidence in the case of the crime of adultery having been committed in that state. The court reserved its decision.

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The arguments put forth in the house of lords against the bill allowing a man to marry his deceased wife's sister, have very much of the "ridiculous " about them on this side of the Atlantic. Like the frog in the ode, the lords said "such very silly things in such a solemn way." Here is the gist of the arguments, pro and con, advanced on the motion for a second reading: The Duke of Marlborough supported the bill. Lord Lansdowne did so on social grounds. - The Bishop of Ely opposed it on scriptural grounds; it would only produce discomfort. - Lord Kimberley combated the arguments used against the bill. — The Bishop of Ripon supported the bill; the word of God not having forbidden the marriage, but tacitly permitting it. The Bishop of Lincoln contended that scripture forbade it. Lord Westbury urged that the present law, as grounded in a misapprehension or delusion, should be expunged from the statute-book. - The Bishop of Peterborough censured Lord Westbury's levity, and regarded the bill as fraught with social evils. Lord Lifford regarded the existing law as founded in an inconsistent and unfortunate legislation. The Duke of Argyll opposed the bill, and was not convinced that the public generally supported it. The Earl of Harrowby condemned it as opposed to the whole voice of Christendom. - The lord chancellor earnestly opposed the bill as wrong, and as in conflict with the spirit of the nation. - Earl Granville supported it as wise, expedient, and just. On a division, the bill was rejected by a majority of 76 to 74.

The imperial court of Paris has just made a decision which we commend as a precedent in this country. An Englishman, by the name of Thompson, having cast his horoscope over the financial heavens, discovered, as he supposed, infallible auguries of a rapid rise in certain stocks. Thereupon he ordered a broker to buy for him some £14,000,000 of the stocks, and expended the larger part of his fortune in paying the advances or margin. His horoscope, however, had betrayed him. The stocks fell instead of rising, his margin was exhausted, and a considerable balance would be required to make the broker good. For

this balance suit was brought. In answer, the defendant pleaded that his speculations had been purely and simply gambling, and the broker knew it. On the part of the broker it was represented that Mr. Thompson had given himself out as a banker-as the agent of foreign capitalists—and that his operations must be considered genuine. But the court, after investigating the facts, said it appeared that Mr. Thompson had taken out no license, either as a banker or trader, had lived in very modest style, had no office and no clerks, and only his own limited capital to dispose of-all of which the plaintiff knew, or, on making inquiry, might have learned. It followed that the speculations of such a man, carried on to an enormous figure, and settled, not by the delivery or receipt of securities, but by payment of differences, "were in reality only bets on a rise or a fall, which were condemned by the law and by morality, and could not be made the subject of a law-suit." The suit was dismissed, and the broker ordered to pay the costs.

At a recent meeting of the English Law Amendment Society, an interesting discussion took place on the evils of unlimited liability of masters and railway companies in case of accidents. It was insisted that as the English law now stands the penalty falls upon persons who are not morally to blame. It was said that a man who had saved 10,000l. might set up a brougham, and might be mulcted of his whole fortune by the carelessness of his servant in driving over a merchant, making 2,000l. a year. Under the criminal law the master was only liable either for his own acts or for those done by his orders. It was thought that the principle of the civil law in the matter was unjust, and therefore impolitic. Even on the ground of policy the liability should, at any rate, be limited. In the case of employers, it might be enacted that no action should be brought against a master without joing the servant as a co-defendant. On the question of railway accidents, it was thought that the companies ought to be entitled to charge on their tickets an insurance for a certain amount, and to promote insurances for larger amounts, and that the damages in case of injury should be limited to 2007., or, perhaps, five hundred times the amount of the fare paid. This would be fine sufficiently substantial to insure as much care as the present system called for. It was further recommended that the amount of the damages should be assessed by some properly constituted and responsible tribunal, which should have power, if need be, to adjourn a case, in order to ascertain if the injury were likely to be permanent. Several speakers commented on the fact that there was a class who preyed on railway companies through the facilities offered by the law as it stands.

lie!" Young Legality smoothed his ruffled feathers when the sheriff announced that it was only a parrot in an adjoining room.

A Michigan judge, who occupied the bench some years since, always used the same formula and pronounced the same sentence, no matter what the offense. The following sentence of a man convicted of willful perjury will illustrate: "You have been convicted of parjury, prisoner. This is a grave offense; but I consider that this is a new country, and we must have some parjury among the difficulties of settling a new country. So I shall only give you thirty days in the county jail."

The duties of a parish parson must formerly have been both arduous and responsible, as appears from the case of Yielding v. Fay (Cro. Eliz. 569), cited in 16 N. Y. R. 163. This was an action brought against the defendant as parson of the parish of Quarleys, in Southampton, to recover damages for his omission to keep a bull and a boar, alleging that he was bound by custom to keep those animals for the use of the parishioners. The court held that it was a good and reasonable custom, and that every inhabitant prejudiced by the omission might maintain an action. Judge Pratt, of Hillsdale county, Mich., on one occasion, sentenced a prisoner as follows:

Judge, Stand up, prisoner, at the bar. Prisoner, how old are you?

Prisoner. Fifty-three years, five months, and twenty days.

Judge (after some calculations). Prisoner, I sentence you to hard labor in the state prison for sixteen years, six months, and ten days. This brings you to seventy years, beyond which my jurisdiction don't extend. Sheriff, remove the prisoner!

A recent number of Lippincott's Magazine has an article entitled "Guesses and Queries," from which we extract the following anecdote: "In a case in which Jeffrey and Cockburn were engaged as barristers, a question arose as to the sanity of one of the parties concerned. Is the defendant, in your opinion, perfectly sane?' said Jeffrey, interrogating one of the witnesses, a plain, stupid-looking countryman. The witness gazed in bewilderment at the questioner, but gave no answer. It was clear that he did not understand the question. Jeffrey repeated it, uttering the words, 'Do you think the defendant capable of managing his own affairs?' Still in vain; the witness only stared the harder. 'I ask you again,' said Jeffrey, still with his clear English enunciation, do you consider the man perfectly rational ?' No answer yet, the witness only staring vacantly at the little figure of his interrogator, and exclaiming, Eh?' 'Let me take him,' said Cockburn. Then, assuming the broadest Scotch tone, and turning to the obtuse witness, 'Hae ye your mull wi' ye?' 'Ow, ay,' said the man, stretching out his snuff-box. 'Noo, hoo lang hae ye kent Jam Sampson?' said Cockburn, taking a pinch. Ever since he was a babby.' 'And d'ye think, noo, atween you and me, that there's any thing intil the cratur?' 'I would na lippen (trust) him wi' a bull-calf,' was the instant and brilliant rejoinder Cockburn could certainly use the tools needed in a Scotch jury trial better than Lord Jeffrey, though inferior to him as a judge or advocate."

OBITER DICTA.

Marriage articles- cradles, rattles, nursing bottles, etc. Cause for divorce- where a woman crows over her husband. Western states please take notice.

A young lawyer at Eatontown, N. Y., in the midst of a Drilliant outburst of eloquence, was interrupted by a shrill voice, which yelled: "Stop! you lie. Stop! you

TERMS OF THE SUPREME COURT FOR JUNE. 3d Monday, Circuit and Oyer and Terminer, Putnam, Barnard. 3d Tuesday, Circuit and Oyer and Terminer, Canton, Potter.

3d Tuesday, Special Term, Onondaga, Morgan. 3d Tuesday, Special Term, Chenango, Balcom. 3d Tuesday, Special Term, Erie, Barker.

4th Tuesday, Circuit and Oyer and Terminer, Sandy Hill, Potter.

Last Monday, Special Term, Monroe, J. C. Smith.
Last Tuesday, Special Term, Albany, Peckham.

COURT OF APPEALS ABSTRACT.*

ACTION.

For professional services, see Bar to Action.

1. By a statute authorizing the defendant (a corporation) to take land, and to erect dams abutting on land of others, it was provided that where there was any disagreement between the company and the owner, as to the amount to be paid therefor, "it should be lawful for the parties to appoint three persons impartially to estimate and determine the price to be paid for the same;" "but, if a majority of the persons appointed should not, within thirty days after receiving notice of their appointment, file a report of their estimate, either party may apply to the court for a venire to the sheriff to summon a jury. A dam having been erected by the defendants, abutting on the plaintiff's land, and a small strip of the land being taken by them, and the parties, not being able to agree upon the compensation, entered into an agreement, in writing, appointing three persons to determine the amount to be paid the plaintiff. After several hearings before these persons, attended by the counsel and witnesses of both parties, the defendant served upon them, and upon the plaintiff, a written notice, revoking the powers of the referees. The referees failing and refusing to proceed, in consequence of such revocation, their fees were paid by the plaintiff. In an action brought by him against the defendants, for the amount so paid, and, also, witness and counsel fees paid by him, on said hearings: Held (WOODRUFF, MASON and LOTT, JJ., dissenting), that he could recover them. Miller v. The President of Junction Canal Co.

2. Whether or not the defendants had any power to revoke such appointment or submission, it was too late for them to deny its existence in this action, after they had not only previously asserted it, but by such asssertion effected their object, and rendered the plaintiff's disbursements useless. Ib.

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1. An order of the general term, reversing an order at special term, striking out an answer, is not appealable to this court. It was not previous to 1869, and the amendment of that year, authorizing an appeal from an order striking out an answer, is not applicable. Taber v. Gardner.

2. It has been settled by repeated adjudication that the last clause of subdivision four of section eleven of the code merely regulates the hearing of appeals, and in no way enlarges the right of appeal, or extends the jurisdiction of this court. Ib.

ATTACHMENT.

Where a debtor is the owner of securities, pledged at a bank as collateral to loans, and the sheriff, with an attachment against such debtor, served it upon the bank, with a notice that "all property, effects, rights, debts, and credits of the said debtor in their possession or under their control would be liable to said attachment, and particularly that he attached the bank account, and debt due from the bank to the debtor;" and subsequently, on a sale of such securities by the bank, a surplus resulted after paying their loan,-Held, that, under this levy of the attachment, the sheriff could not hold such surplus against a receiver appointed in supplementary proceedings on another judgment against the debtor, the sheriff's specification, in his notice to the bank, not sufficiently show

* To appear in 2 Hand's Court of Appeals (N. Y.) Reports.

ing the property levied upon. (DANIELS and JAMES, JJ., contra.) Clarke v. Goodridge.

ATTORNEYS AND COUNSELORS — Cannot be allowed fees for acting professionally for estate of which they are executors. See Executors.

BAR TO ACTION.

1. A judgment in justices' court in favor of a surgeon for professional services is a bar to any action by the defendant against him for malpractice in performing such services. Gates v. Preston.

2. And this is equally so, although the recovery in the justices' court was upon confession without trial, and although the surgeon's suit and judgment thereon were subsequent to the commencement of the action for malpractice, and were interposed as a defense to it by supplemental answer. 16.

3. Accordingly, where an action having been commenced, and being at issue against a surgeon to recover $5,000 damages for malpractice in setting an arm, he sues the plaintiff in justices' court for the same professional services, the alleged unskillfulness and negligence in which constitute the malpractice complained of, and judgment was obtained before the justice by the surgeon for six dollars and fifty-eight cents, without answer, upon a written consent to its entry,-Held, that such judgment was a complete bar to the action for malpractice; and having been pleaded as such by supplemental answer, a demurrer thereto was properly overruled. Ib.

BOND OF INDEMNITY.

1. The defendant, in consideration of the conveyance to him by one P. of a farm, executed and delivered to the latter a bond in the penalty of $15,000, conditioned that the same should be void, if the defendant should (among other things) pay a certain promissory note given by P. to the plaintiff, and should indemnify and save harmless the said P. against the note, otherwise to remain in full force and virtue. The plaintiff, after judgment against P. on the note and execution thereon returned unsatisfied, having brought this action against the defendant, claiming a liability, under condition of the bond,-Held (GROVER, J., contra), he could not recover. The covenant made by the defendant is to pay P. the penalty of the bond; not a promise, even to P., to pay the plaintiff's note. It is, upon condition of his payment of this note, and the performance of the other acts mentioned in the condition of the bond, that he may avoid it; but he may allow it to remain in full force. Qurk v. Ridge.

2. The bond was, besides, merely one of indemnity to P. to save him harmless from the note, and not a promise to him for the benefit of the plaintiff. Ib.

3. Semble, that no action, on contract, will lie upon a mere naked condition. MASON, J. Ib.

BURGLARY. See Criminal Law.

CAUSE OF ACTION.

1. An equitable cause of action to remove as a cloud upon the plaintiff's title a deed given by mistake by a third party to the defendant, under which, having fraudulently obtained possession by connivance with the plaintiff's tenant, he claims to hold as owner, and a claim to recover the possession of the premises, may be united in the same action and asserted in the same complaint. Lattin v. McCarty.

2. Accordingly, where the complaint alleged that the defendant, having at one time held a contract from C. for the conveyance of certain premises, which contract he afterward assigned to S., and that S., erroneously supposing he had obtained from the defendant a deed instead of a mere assignment of a contract, mortgaged the property to F., who foreclosed, and bidding it in, conveyed to the plaintiff; and that S., in the mean time, having, for the purpose of completing his supposed title, paid up the contract to C., took a deed from the latter to the de

fendant and put it on record; and that the defendant, learning of the existence of this deed, having bribed the plaintiff's tenant to give him possession, claims title under that deed against the plaintiff, and withholds possession,-Held, that upon such allegations a prayer for the recovery of the possession, and that the defendant be required to quit-claim to the plaintiff, or be forever enjoined and barred from setting up or asserting his pretended title under the deed from C., were properly united, and that both kinds of relief might be obtained in the same action. Ib.

3. Phillips v. Gorham (17 N. Y., 270), commented upon and followed. Ib.

CLOUD ON TITLE. See Cause of Action.

CONSIDERATION.

Several persons organized the defendant, as a cemetery association, under the act (chap. 133 of the laws of 1847) authorizing the incorporation of rural cemeteries, and made themselves its trustees for the first year; one of their number being at the time the owner of 120 acres of land. This land was purchased from him by the association, at the actual price of about $20,000; but, by agreement between the trustees, a consideration was inserted in the deed of $500,000, and for the balance over the $20,000, to wit, $480,000, bonds were issued by the association, which were distributed among the trustees. These were subsequently surrendered, and new bonds, not negotiable in form, of smaller amounts each but the same in the aggregate, were substituted in their place. Several years after, the plaintiff found one of these bonds among the papers of his testator, who was not one of the original trustees, and it did not appear how he became the holder. The plaintiff applied to the association, and received from them another bond in place of the one so found, which he surrendered up. Interest upon the substituted bond had been paid by the defendant some years. In an action brought to recover the amount payable in the bond,- Held, that it was void, both from an entire want of consideration for the original bond, for which it was substituted, and on account of the fraud in the original issue of the bonds by the original trustees to themselves. Held, further, that there being no proof as to how the plaintiff's testator became the holder of the bond found among his papers, and it not being negotiable in form, the plaintiff stood in no better position than the trustee to whom the original bond was issued; nor did he gain any additional rights by procuring from the present managers of the defendant a new bond of a different form, in the place of the one delivered up. Campbell v. Cypress Hill Cemetery.

CONSTITUTIONAL LAW. See Taxation.

CONTRACT.

1. The defendant contracted to sell certain lands, owned by him in Pennsylvania, to the plaintiff and one J., for the sum of $75,000, payable in sixty days, $15,000 in cash and the balance in five equal annual payments; and, by a separate instrument, itwas agreed that, if the plaintiff and J. should make a sale, they were to have $5,000 each, and each one-third of all over $75,000; and they were to have the same if the defendant should make the sale. Within the sixty days the defendant sold to one R. for $90,000, $20,000 down and the balance in five years; and thereupon the defendant made a new agreement with the plaintiff and J., that he should have $67,000 of the purchase-money, they $4,000 each, and the balance be equally divided between the three.

R. paid $20,000, took a deed, and gave a bond and mortgage for the remaining $70,000, and warrant of attorney to enter judgment on the bond, and issue execution in case of default. The defendant paid to the plaintiff and J. $4,000 each, and paid interest on $5,000 to each as long as R. paid interest on the bond and mortgage to him. R.

having at length made default, the defendant issued execution, under which the lands were publicly sold, and were bid off by defendant for $10,300; and having perfected title, he subsequently sold them to one B. for $70,000. Twenty thousand dollars of this having been paid the defendant, the plaintiff brought this action, and subsequently, B., having paid the defendant the balance of the $70,000, by a supplemental complaint, claimed to recover of the defendant the sum of $5,000 and interest from the date of the sale to B. Held (GROVER, MURRAY and DANIELS, JJ., contra), that the defendant must be regarded as having acted as a quasi trustee for the plaintiff to the extent of one-third of the surplus over $75,000, in bidding off the lands on the sale of R.'s interest, and in the subsequent sale to B.; and having received in all the sum of $15,000 more than the $67,000 he was to receive under his last contract with the plaintiff and J., and the $8,000 paid them, he was bound in equity, under that contract, to account and pay over to the plaintiff one-third of that surplus. Renman v. Slocum.

2. Held, further, that the action having been commenced after the sale to B., but before the defendant had actually received the sum in the aggregate, which he was entitled to receive before any division of surplus, was nevertheless not prematurely brought, but could have been originally maintained for the purpose of establishing the trust and declaring the plaintiff's rights, and the supplemental complaint, setting up the receipt of the whole $70,000 from B. by the plaintiff, subsequent to the commencement of the action, and thereupon claiming the immediate recovery of the $5,000 and interest, was properly allowed. Ib.

3. Held, further, that J., the co-contractor of the plaintiff, was not a necessary party to the action. Ib. CORPORATION, CITIZEN OF STATE CREATING IT. See Jurisdiction.

CRIMINAL LAW. See Evidence.

1. Upon a writ of error, in criminal cases, the review, both in this and the supreme court, is confined to questions of law arising upon exceptions taken upon the trial, and errors appearing upon the record. The evidence constitutes no part of the record, and must be disregarded, except for the purpose of determining the materiality of exceptions. The People v. Thompson.

2. Mistakes of the court upon the trial, or of the jury in giving their verdict, are no grounds for a motion in arrest of judgment, which can only be based upon some defect in the record. Ib.

3. Accordingly, where upon the trial of an indictment for murder in the first degree, the prisoner, upon being found guilty of murder in the second degree, moved in arrest of judgment, on the grounds that there was no evidence justifying a conviction for the offense; and, also, that a conviction for murder in the second degree could not be sustained under the indictment,-Held, 1. That, under an indictment for murder in the first degree, a conviction of murder in the second degree may be upheld; 2. That although it appear upon the evidence, the whole of which was inserted in the bill of exceptions, that the commission of that crime was not proved, in the absence of any proper exception this was no ground of reversal on writ of error; and 3. That the motion in arrest, not being based upon any defect in the record, was properly denied. Ib.

4. Keef v. People (40 N. Y., 348), followed. Ib.

5. One convicted of and sentenced for the crime of burglary in the third degree is thereby rendered incompetent as a witness in any cause, civil or criminal, although at the time of such conviction and sentence he was under sixteen years of age, and under the statutes (chap. 100, laws of 1840, chap. 24, laws of 1850) sent to the house of refuge and not to state prison. The People v. Park.

6. The definition of felony as contained in the revised statutes (2 R. S. 701, § 30) must be construed as relating to

the punishment prescribed for the crime, without reference to any personal exemption of the criminal. (LOTT, GROVER and DANIELS, JJ., contra.)

DEED, CONDITION IN.

Where one receives a conveyance of land to himself from a mortgagor, in which conveyance is a stipulation that he, as party of the second part, will pay off and discharge the mortgage, as a part of the consideration of the premises, he is personally liable to the holder of the mortgage for the amount due thereon, although the deed is not signed or subscribed at all by him; and although it was in fact taken, and, by a written agreement made at the time, appears to have been taken, merely as security for an indebtedness owing to him by the firm of which the mortgagor is a member. Richard v. Sanderson.

EJECTMENT.

1. One who claims as one of six children, the heirs of the owner of a rent charge, with a condition of re-entry, upon premises leased in fee, subject to such rent charge and condition of re-entry, may, upon non-payment of the rent, maintain an action of ejectment to recover one undivided sixth part of the demised premises. Cruger v. McLaury.

2. Such action may be commenced without a common law demand of the rent having been first made, or a fifteen days' notice of intention to re-enter under the act of 1846 having been served. Ib.

3. Hosford v. Ballard (39 N. Y. 147); and Van Rensselaer v. Dennison (35 N. Y. 393), referred to and approved. Ib.

4. Accordingly where J. K., in 1789, leased in fee to the defendant's grantor the premises in question, reserving rent, with a condition of re-entry in case of non-payment, and died in 1810 intestate, leaving the plaintiff (his daughter), and five other children, his heirs at law, Held, unanimously, that she could recover of the defendant in ejectment, on non-payment of the rent, one undivided sixth part of the premises leased, and that the commencement of the action was a sufficient substitute for actual entry or the common law demand of rent. Ib.

EVIDENCE.

1. In an action for causing death in the streets of a city, charged to have been by the negligence of the defendant's servants, evidence that the fatal injury was occasioned by a runaway span of horses and wagon, owned by the defendant,- Held, sufficient to authorize a jury to find persons in charge of such horses and wagon to be his servants, although engaged at the time in a business which appeared to be that of another person, whose name, as carrying on such business, was painted upon the wagon. (GROVER and LOTT, JJ., contra.) Morris v. Kohler.

2. Statements made by the prisoner, under oath, at a coroner's inquest upon the body, are admissible against him upon his trial for the murder, although he knew, at the time he was sworn, that it was suspected the deceased was poisoned, and that he himself would probably be arrested for the crime, and was informed by the coroner that rumors implicated him, and that he had a right to refuse to testify. Teachout v. The People.

3. McMahon v. People (15 N. Y. 384), distinguished. Ib. 4. Hendrickson v. People (10 N. Y. 13), followed. Ib.

EXECUTORS.

1. A decree in an action by one executor against his co-executor, requiring the latter to place the securities and papers in his possession, belonging to the estate, in the custody of a bank; and that both he and the plaintiff deposit all moneys thereafter collected therein, to be drawn out only on their joint check, is not authorized by the fact, that the defendant maintains exclusive manual possession of the securities belonging to the estate, and refuses to deliver over any portion thereof to the custody of his co-executor, in the absence of any moof that the interests of the beneficiaries under the

will are jeopardized by such exclusive possession. Burt v. Burt.

2. The defendant being, as one of the executors, properly in possession, all that the plaintiff, as co-executor, can justly require is, that when any step in the settlement or administration of the estate is to be taken, which required the presence of the securities, or any part of them, either to indorse upon a bond or mortgage payments thereon, or surrender up the same if paid in full, or for any proper purpose, then they should be produced. Ib.

3. If the defendant refused, at the proper time, to apply the assets to the payment of the debts, the plaintiff could apply to the surrogate; and, if there was mismanagement or misappropriation, or conduct endangering the interests of creditors or legatees, application could be made to the surrogate at any time. Ib.

4. Wood v. Brown (34 N. Y. 337), distinguished and limited. Ib.

5. An executor cannot receive from the estate any greater compensation than the statute commissions, for his own services, however meritorious or extraordinary they may be. Collier v. Munn.

6. One of the executors of a will, therefore, who is an attorney and counselor at law, cannot be allowed any fees whatever from the estate, for professionally defending and conducting an action brought against the estate, although requested by his co-executors to appear in such action and undertake such defense, with a promise of compensation, and although the legatees and next of kin united in such request. Accordingly, where C., a counselor at law, who was one of the executors of M., was requested by his co-excutors, who promised compensation from the estate, to defend an action of ejectment brought against a grantee of the testator, with warranty, who had given notice to the executors to defend, and the legatees and devisees had also united in a request to C. to undertake such defense, and C. thereupon undertook the case, tried it at circuit, argued it at general term and at the court of appeals, and, after a second trial, negotiated an advantageous settlement of the litigation. Held, that the surrogate, on the settlement of the executor's accounts, properly refused to allow any thing to C. for such legal services. (JAMES, MURRAY and LOTT, JJ.) contra.) Ib. FELONY. See Criminal Law,

FRAUD. See Consideration; see, also, Statute of Limitation. INDICTMENT. See Criminal Law.

JURISDICTION.

1. Where the defendant, citizen of another state, regularly, and strictly in accordance with the act of congress of 1789, known as the "judiciary act," files his petition in the state court for the removal of the cause to the United States circuit court, and a sufficient bond, which is offered for the approval of the state court, the state court is ipso facto ousted of jurisdiction; and whether an order for removal is granted or denied by the state court, all further proceedings therein are coram non judice and void. Stevens v. The Phonix Insurance Co.

2. And where, in a case within the act, after such petition has been filed and bond offered, the state court refuses to order the removal, the defendant answers, the cause is tried, and judgment is entered up against the defendant, such judgment will be reversed by this court, as without jurisdiction. Ib.

3. It has long been settled, that a corporation is a citizen of the state creating it, within the meaning of the judiciary act of congress. Such corporation does not lose that citizenship by appointing an attorney in another state, in compliance with its statutes, upon whom process may be served, and doing business in such state, under a certificate of officers thereof, authorizing it to transact business therein subject to visitatorial powers. lb.

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