These resolutions were drawn by Hon. Alfred Conkling, now of Geneseo, N. Y., father of Senator Conkling, then a young but distinguished lawyer, and an intimate friend of Governor Clinton.

He was subsequently appointed by President Adams United States district judge for the Northern district of New York. This appointment was made on the recommendation of Mr. Clinton, then Governor of the state, General Van Rensselaer, and other eminent citi

zens.

While in congress in 1822 and '23, Judge CONKLING made the acquaintance of Mr. Adams; a warm and intimate friendship commenced between them, which ended only with the death of "the old man eloquent." It was, therefore, a pleasure to him, by this appointment, to recognize the eminent legal abilities, profound learning, and purity of character, of his friend from New York.

After serving many years as district judge, winning the approbation and confidence of the bar and the public; after serving his country as minister to a foreign nation, Judge CONKLING has retired to that quiet and repose which his life and services so well merit.

So strong was the popular feeling in favor of Mr. Clinton, that in August, 1824, he was nominated for governor. To strengthen him in the western counties, Mr. Spencer was urged to accept the nomination for Senator from the eighth senatorial district. He consented, and both Spencer and Clinton were elected; the latter by a majority so large that, in the facetious language of Dudley Marvin, "he got a larger majority than he would had he ran alone." Once more John C. Spencer became a member of the state legislature. As a member of the court for the correction of errors, his legal learning was now exercised judicially, and for four years his opinions pronounced in that court enriched its reports.

CURRENT TOPICS.

Judge E. R. HOAR resigned the office of attorneygeneral of the United States on the 15th inst., and the resignation was accepted on the same day by the president. It has long been the desire of Judge HOAR to retire to private life, and he has chosen the present time as best fitted for leaving the business of the office in a convenient condition for his successor. With the partisans and political hacks of the capital Judge HOAR has never been a favorite. They could never comprehend him, for he acted upon principles that were beyond their range. But the honest and intelligent portion of the people have found him an able and upright lawyer, and a zealous and faithful officer. It is said that he will continue to discharge the duties of the office until the confirmation of his successor.

A writer in the Solicitors' Journal, after discussing the English decisions on the liability of married women having separate property, says: "The rule may be taken to be this: when a married woman enters into a contract, which at the time she has no means of fulfilling, except at the expense of her separate estate, the court will assume her to have intended

the honest consequences of her action, and will hold her separate estate liable. *** Whenever, as for instance was the case in Hulme v. Tenant (1 Wh. & Tu. L. C.), a wife, having separate estate, joins her husband in an obligation, there arises at once a presumption that it was with the view of binding her separate estate, since, unless that were the object, her joining would be a mere farce." This is a very common-sense view of the matter, and we should be glad to see our judges arrive at the same conclusion.

Charges of a serious nature have been preferred against the Hon. J. H. Duvall, United States judge for the western district of Texas. It is alleged that he was holding court at the time of the breaking out of the war, and escaped through the lines, and came to Washington, after remaining in the confederacy two years. On his arrival in Washington he presented his claim for salary during the period of his absence, filing the iron-clad oath with his application. On the recommendation of Judge Holt, Secretary Seward, and others, President Lincoln ordered the payment of his claim. It is now claimed, by gentlemen from Texas now at Washington, who have certain records of the late confederacy, that Judge Duvall took the oath of allegiance to the rebel government, and drew his salary as judge of their court from the rebel treasury. It is therefore proposed to ask for his impeachment by congress.

A "Legal Education Association" has been formed in England, which has for its primary objects the formation of a legal university, and an examination test conducted by a public board for both branches of the profession. A bill to further the plan is to be introduced at this session in order to pave the way for legislation next year. In the published scheme, the committee say: "England, it is believed, is the only first-class state in Europe where a systematic study of the law does not exist, and the profession of the law is the only profession in England which exists in a state of almost complete isolation from all that has been done in late years for the science to which it relates on the continent of Europe. The reason of this state of things is, that in England all the lawyers are practitioners, and there is no school of law, and therefore no science of law, and no established system of teaching." We should be glad if some movement of the kind could be inaugurated in this country. Legal education here is even more desultory and deficient than in England, notwithstanding the efforts of the several law schools.

The president has nominated Amos T. Akerman, of Georgia, for attorney-general, in place of E. R. Hoar, resigned. Mr. Akerman is a native of New Hampshire, a graduate of Dartmouth college, and about 46 years of age. He removed to Georgia before he obtained his majority, and studied law in the office of J. McPherson Berrian, an ex-United States senator, and also President Jackson's attorney-general. He has been one of the leading lawyers in the South, but has never held public office until appointed by

President Grant United States attorney for the district of Georgia, some eight months ago. He was a union man at the outset of the war, and strongly opposed to secession, remaining quiet, but firm in opposition to the rebellion for some time after hostilities commenced. But, after the confederate government had established itself, he entered its service, remaining therein about eighteen months. In December last he was relieved from the political disabilities imposed by the fourteenth amendment. Although admitted to be a thorough republican, it is intimated that his record during the rebellion may lead to his rejection by the senate.

The defects in our present system of selecting expert witnesses have been rendered prominent by the recent trial of McFarland, and considerable discussion has arisen as to the propriety of having them selected by the court. There can be little doubt that an expert selected and paid by a party is hardly so likely to be disinterested and impartial in his opinions as one selected and paid by officers of justice. Let the witness desire to be ever so fair in his conclusions, he is likely to be led to favor the views or hypotheses of the party in whose behalf he is called. He is told in the beginning that a certain condition of things exists, upon which is based certain hypotheses, and he is called upon to lend the aid of his skill to corroborate those hypotheses, rather than to detect or expose their errors. The wish becomes father to the thought, and if the general facts will bear out the desired conclusion he is content. Were experts selected by the court and paid by the state there would seldom be the slightest inducement for their giving an opinion not entirely justified, both by the general phenomena and by the minute details of the case. Experts thus selected would become ministers of equal and impartial justice, rather than, as is now too often the case, the parasites and advocates of the party at whose instance they are called.

The English court for divorce and matrimonial causes has just given judgment in the case of Mordaunt v. Mordaunt. It will be remembered that the suit is by a husband for a dissolution of marriage on the grounds of the respondent's adultery. After the commencement of the suit, it was alleged that the respondent was insane, and this question was tried before a jury, who found that she was insane at the time of the service upon her of the citation, and that she remained insane ever since. Lord Penzance then made an order staying all further proceedings in the suit until the respondent should recover her mental capacity. The petitioner appealed against this order to the full court; and the majority of the court, Lord PENZANCE and KEATING, J., have affirmed the order (KELLY, C. B., dissenting), holding that the insanity of the respondent is a bar to a suit for dissolution of marriage. The majority of the court rested their opinion mainly upon the analogy of the case to a criminal proceeding. KELLY, C. B., argued strongly in favor of rescinding the order, and of staying the proceedings from time to time as long as a reasonable hope remained that the respondent may recover; but that, when that shall have ceased, the petitioner should be permitted to proceed with his suit.

OBITER DICTA.

A terre tenant- one who lets the land run to weeds.

Dust in the summer time, like a venue, ought to be well laid.

Contributory negligence- that of writers for the press who fail to punctuate their articles.

The Pennsylvania legislature once voted that the "State-house land should be inclosed with a brick wall, and should remain forever an open enclosure."

Law dictionaries are very useful sometimes. One we have before us, open at "last sickness," defines it as "that of which a person died." This is a good thing to know.

A New York statute (session laws, 1863), provided that prisoners confined in the state prison should have two days for every six months, taken off their term for good behavior; but this "shall not apply where the sentence is for life."

A prisoner who was indicted for stealing goods was acquitted by the efforts of his counsel. It appeared he was found with a wheel-barrow, on which was some of the stolen property, Some one remarked that the eloquent counsel resembled his client, inasmuch as "he carried every thing before him." Some one else asked why didn't they haul him up for "wheel-barratry?"

In Nash v. Battersby (2 Lord Raym. 986,) the plaintiff declared with the addition of “gentleman." The defendant pleaded in abatement that the plaintiff was no gentleman. The plaintiff demurred, and it was held ill, for, said the court, it amounts to a confession that the plaintiff is no gentleman, and then not the person named in the count. He should have replied that he is a gentle

man.

When Chief Justice Shaw, of Massachusetts, was on the bench, one of the associate judges happened to be in a barber's shop one day, having his hair cut. The proprietor, after various observations peculiar to that colloquially inclined profession, inquired where the chief Justice was.

"Why doesn't he come in; I don't believe he has been here since(naming the time) but then," he added, after a pause, "I dare say he has had something else on his mind."

EVIDENCE.

1. Declarations. — In an action against a husband, after his wife's death, to recover property claimed to have been owned by the wife, in her life-time, and to have been given to the plaintiff by her, in anticipation of death, proof of the declarations of the wife are not competent evidence against the defendant, to show that she was the owner of the property, where the answer denies that the wife ever was such owner, and claims that the property at all times belonged to the defendant in his own right, and he had the control and possession of it at the time. Dewey v. Goodenough.

2. Testimony of parties. - Under section 399 of the code of procedure the plaintiff in such an action cannot be allowed to testify as to all the circumstances of the transaction going to show property in the deceased, and a gift thereof to the plaintiff, 16.

GUARANTY.

1. The defendant, on transferring to the plaintiff the note of a third person, then past due, guarantied its collection, provided due diligence should be used. The maker absconded and went to Canada, where he remained, leaving property in this state, liable to the payment of the debt. Held, that the plaintiff, before he could recover upon the guaranty, was bound to exhaust his remedy against the maker, by suing him to judgment in this state, and collecting what he could upon the execution. Mosier v. Waful.

2. The plaintiff, after the maker of the note had absconded, issued a summons against him, and obtained an order of the court directing service thereof by publication, and that a copy of the summons and complaint be deposited in the post-office, directed to the maker, if his residence could be ascertained: or that personal service be made. Held, that a compliance with this order was necessary to complete the service of the process, and to give the court jurisdiction of the action; and that without such compliance the subsequent proceedings, and a

*From Hon. O. L. Barbour; to appear in the 56th volume of his Reports.

judgment entered thereon, were void as against the grantor. Ib.

LIMITATIONS, STATUTE OF.

1. Attorney's fees. - Although an attorney may, within two years after he has recovered a judgment, acknowledge satisfaction thereon, yet, upon a general retainer to collect, he is not bound to wait the two years before he can maintain an action against his client to recover for his services in obtaining the judgment. Bruyn et al. v. Comstock.

2. He has a perfect right of action against his client for his services in prosecuting suits for the collection of debts and recovering judgments and issuing executions from the time the services are rendered, without any previous presentment of his account, demand, or notice. And if an action is not brought within six years from that time, the demand will be barred by the statute of limitations. lb.

3. In such a case, the statute begins to run as soon as executions are issued, if not when the judgments are perfected. lb.

MUNICIPAL CORPORATIONS.

1. Charter elections. — In order to render an election for charter officers, in a city, valid, it is indispensable that a list or register of the voters shall be made, specially for that election. Without such a register all the votes cast at such election are illegal, and any election of any officer is a nullity. Pitkin v. McNair.

2. This principle applies to a special election, required by a city charter to be held annually, for the election of a particular class of officers (school commissioners). Ib.

NUISANCE.

Negligent keeping of gunpowder.—The careless or negligent keeping of gunpowder, in large quantities, near dwelling-houses, or where the lives of persons are thereby endangered, is a nuisance at common law. Bradley et al. v. The People.

PARTNERSHIP.

1. Rights and duties of partners. The true meaning of the general rules applicable to the rights and duties of partners, as between themselves, is to require the members of a partnership firm to devote their time, labor and skill to the benefit of the firm, and not to themselves individually; and to forbid their purchasing for their own use articles in which the firm necessarily deals, at the risk of having the same, and the profits arising therefrom, claimed by the firm as belonging to them. The American Bank Note Company v. Edson.

2. These rules are not to be understood as prohibiting such dealings, nor as making void any contracts which violate such rules, but only as exposing the member of the firm who makes them to a liability to the firm to render to them an account of the profits. Ib.

PROMISSORY NOTES.

1. Rights of surety. - Where the holder of a promissory note has in his hands and under his control a fund be

longing to one of the makers who is the principal debtor, a surety in such note is entitled to have such holder exhaust that fund in the discharge of the note, before resorting to him, as surety. Wright, adm'r, etc., v. Austin. 2. The administrator of the payee of a note has a right to apply so much of a distributive share of the estate coming to the maker as will pay and discharge such note. Ib.

3. And a surety of the maker, when sued upon the note, by the administrator of the payee, has a right- the maker being insolvent- to insist that the administrator shall so apply the distributive share of the principal. Ib.

PLEDGE.

To entitle a pledgor to a return of the pledge, he must see to it that his tender covers both principal and inter

est, before he can claim a return of the pledge. Woodworth v. Morris.

RAILROADS.

1. What is a passenger train. —Where, although the main business of a train of cars, upon a railroad, is to carry cattle, yet it is a part of its regular business, daily, to carry such passengers as apply, it is really a freight and passenger train, whatever the company may choose to denominate it. Dillaye v. The New York Central Railroad Company.

2. It is not a material circumstance that the company does not check baggage on such a train, or that the passengers are left to take charge of it themselves. Ib.

3. Liability of companies for negligence. — A railroad company is bound to see that there is a safe and commodious passenger way from the station, or ticket office, to the place where the passenger car, upon a freight and passenger train, usually stops; and it is liable in damages for any injury sustained by a passenger upon such a train in falling into an improperly constructed cattle-guard, in consequence of the company. Ib.

SLANDER,

1. Proof of provocation. — In an action for slander, the defendants, either before or since the code of procedure, could not prove, for the purpose of diminishing the plaintiff's damages, any act or declaration of the plaintiff against him, unless such act or declaration formed a part of the res gesta. Richardson v. Northrop.

2. He could prove the general bad character of the plaintiff, and any circumstances which, at the time the words charged were spoken, were calculated to irritate and excite the defendant, and provoke him to the utterance of the words complained of; but it is no answer to the plaintiff's claim for damages for slander, that he has said or done something against the defendant, whether actionable or not, for the purpose of reducing such damages, unless such act or declaration actually excited the defendant to use the words charged against him. Ib.

3. Yet the defendant may prove a series of provocations on the part of the plaintiff, commencing long anterior to the speaking of the words charged; provided they are continued from time to time down to and at the time the actionable words are uttered. Ib.

STATUTES.

A thing may well be within the spirit of a statute, although not within the letter; or it may be within the letter and yet not within the spirit of it. And, as a general rule, where a statute is intended to abrogate a common law right, or to confer a right not vested by the common law,it will be so construed as not to go beyond the letter; and not even to that extent, unless it appears to be according to the spirit and intent of the act. Dewey v. Goodenough.

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STOCK.

1. Conversion of. — The plaintiff employed a broker to procure a loan for him upon stock. The broker applied to the defendant, who refused to make a loan. After informing the plaintiff of such refusal, the broker went a second time to the defendant, who then said he would buy the stock. The plaintiff agreed to sell it to him, and a bill of sale was executed, and the money paid. It was then agreed that if the plaintiff brought the money back in ten days, the defendant would return the stock. The money not being paid or tendered within the ten days, it was held that an action would not lie against the defendant to recover damages for a conversion of the stock. Woodworth v. Morris.

2. Held, also, that, if the transaction was a pledge, the defendant was entitled to interest on the loan; unless the agreement was that he would accept the principal without interest, if tendered within the time; and that a tender of the principal after the day, without offering to pay

the interest which had accrued after the day, was insumcient. Ib.

VENDOR AND PURCHASER.

1. Recovering back over-payments. · Where the defendant sold to the plaintiff for $177 an account of $192 against the government for his services as an enrolling officer, upon which only $30 was finally allowed by the provost marshal; held, that, even if the defendant supposed at the time that he was entitled to the whole sum, it having turned out that he was not, he was bound to refund to the plaintiff the amount which the latter overpaid him for the claim. And that the plaintiff could recover that amount without applying to the defendants to have the contract rescinded. Sherman v. Johnson.

2. Held, also, that although the plaintiff, in his complaint, alleged that the statements of the defendant to him were false and fraudulent, still he could recover, if he proved enough to sustain an implied warranty, though no such fraud was shown. Ib.

3. Fraudulent representations and concealment.—The defendant, on selling to the plaintiff an account against the government, represented that he had performed sixtyfour days services as an enrolling officer and in notifying men, at $3 per day, when, in fact, he had already been paid for the time spent in enrolling, and he had been engaged only ten days in notifying the men, for which latter services only $30 was finally allowed upon the account. Held, that the judge, at the trial, was warranted in directing a verdict in favor of the plaintiff for fraudulent representations, as well as for fraud in the concealment of material facts by the defendant. Ib.

4. The general rule is, that if a party selling any thing of value willfully misrepresents the true character of it, and thereby defrauds the purchaser, he is reponsible for the damage which the latter sustains. Every exception to this rule should be founded upon some strong or clear reason for making it. Ib.

5. Tender of purchase-money. — As a general rule, a purchaser of chattels, in order to recover damages for the non-delivery of the property by the vendor, pursuant to the contract, must show either a tender of the purchase price, or that he was ready to pay it, when he made the demand; especially where there is a mere failure to perform on the part of the vendor. But where the vendor refuses to deliver the property, when it is demanded of him, the purchaser is not bound to tender or offer the money to him. Anderson v. Sherwood.

6. Contract of sale. The plaintiffs, at various times, sold and delivered to the defendant dry goods out of their store, to an aggregate amount of $331.68, in consideration of which, and in payment thereof, the latter agreed to deliver to the plaintiffs, on or before a day specified, nails, at the rate of $5.37% per 100 lbs. Held, that the transaction was a purchase of dry goods from the plaintiffs by the defendant, from time to time, on credit, the goods being delivered at the time of each purchase, and to be paid for in nails, on or before the day mentioned, and not a purchase of nails, to be paid for in dry goods, or even an exchange of nails for dry goods; and that the plaintiffs were entitled to recover the balance of the purchasemoney of the goods sold, remaining unpaid, with interest. Herrick et al. v. Carter.

COURT OF APPEALS OF MARYLAND.*

ADVERSE POSSESSION.

1. Where possession of land is shown to have existed for a great length of time without interruption, all those circumstances or formal ceremonies which the law deems necessary to make such possession rightful, will be supplied by presumption, and the possession thus supported will not be disturbed. Crook v. Glenn et al.

2. An exclusive adverse possession for more than twenty

*From Hon. J. Schaaff Stockett, reporter, to appear in volume 30, Maryland Reports.

years by a mortgagee and those claiming under him, without any account or acknowledgment of a subsisting mortgage, is a complete bar to an application for a surrender and cancellation of the mortgage, and a delivery of the possession of the mortgaged premises. Ib.

3. The statute of limitations applies to trust estates. Ib. 4. Where there is a trustee in existence to represent the cestui que trust and her rights and interest in the trust estate, the statute of limitations bars as effectually as if there existed no disability in the cestui que trust. Ib.

ASSIGNMENT.

A party being largely in debt, made a deed of assignment in trust for his creditors. In its recital, the deed stated the fact of his indebtedness, his inability to pay his debts in full, and his desire to provide for the payment thereof "as far as he could, in a just and equitable manner, by assignment of all his property and effects for that purpose." And in the granting clause, the property was described as "all and singular his goods, chattels, promissory notes, debts, wares, merchandise, securities, and vouchers for, and affecting the payment of money, claims, demands, choses in action, and property of every name and nature whatever, of and belonging to him, and which are more particularly and fully enumerated in the schedule thereto annexed, marked schedule A." After making this deed, the assignor left the state, was pursued and overtaken by an agent of the appellees (creditors of the assignor), and compelled to surrender to him a sum of money sufficient to discharge their claim. This sum was handed over by the agent to his principals. The money thus recovered was not embraced in the schedule A annexed to the deed of assignment. On an action brought by the trustees under the deed of assignment against the appellees to recover, as belonging to the trust estate, the money so received by them,-Held: 1. That the right to this money did not pass to the trustee under the deed. 2. That the general words contained in the deed were restrained and limited by the reference to the schedule A, which did not embrace said money. Mims v. Armstrong, Cator, et al.

BANKRUPTCY.

1. Under the act of congress, entitled "An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867, the federal courts have exclusive jurisdiction in all matters and proceedings in bankruptcy. Van Ostrand v. Carr et al.

2. The application of a party for the benefit of the insolvent laws of Maryland, is an act of bankruptcy within the provisions of the 39th section of the bankrupt law of the United States. Ib.

3. The insufficiency of the assets of an insolvent debtor to pay fifty per cent of his debts, and the uncertainty of his being able to procure the written consent of a majority in number and value of his creditors, who have proved their claims, to his discharge, in no way affect the jurisdiction of the bankrupt court; its jurisdiction is independent of the right of the party ultimately to obtain his discharge. Ib.

DISTRIBUTION.

1. In determining questions of priority in the distribution of funds in court, there is an universal concurrence in the principle, that the intention of the parties contracting must govern, where that can be discovered, unless in contravention of some rule of law. Chew, adm'x, v. Buchanan et al.

2. Where the meaning of the parties has been expressed, or can be inferred from their acts, there has been no difficulty in disposing of the question. Ib.

3. No particular form of assignment, indicative of preference, is essential. It.

4. A being indebted to B, gave to her three several notes, for sums amounting together to the whole debt, and payable respectively, three, four and five years after date; and at the same time executed a mortgage to secure

the payment of said debt, at the respective periods limited by the notes. On the same day B assigned to C the note first maturing, and also her interest in said mortgage, to be held by C, in as full and ample a manner, to the extent of the sum expressed in said note, with all interest which might accrue thereon, and costs, charges and expenses incident thereto, and so that the said C should have priority of lien therefor, as the said B might or could have held the same, if said assignment had not been executed. This assignment was duly acknowledged and recorded, and by subsequent assignments, at different times, duly acknowledged and recorded, the other notes, with a pro tanto interest in the mortgage, were assigned by B to other parties. The mortgaged property having been sold, under proceedings for a foreclosure instituted by C, the net proceeds of sale proved insufficient to pay the first note, with interest thereon. Held, that in distributing the net proceeds of sale C was entitled to a preference to the whole extent of his claim. Ib.

EXECUTORS.

1. A creditor who has recovered a judgment against the executor of a surety of his debtor, may enforce his claim by execution against the property of the executor, nothwithstanding the pendency of an injunction enjoining the creditors generally of the principal debtor from proceeding against him at law. Beale, ex'r, v. Osbourn et al.

2. An absolute judgment against an executor is conclusive of the existence of the debt and the sufficiency of assets to pay it; and a fieri facias may be issued thereon and levied upon the lands of the executor, as well as upon his goods and chattels, Ib.

EVIDENCE.

1. In an action for goods sold and delivered, and money lent, it is not competent for the plaintiff to place in the hands of a witness the account upon which the action was brought, for the purpose of refreshing his recollection as to the particular items and dates therein, the account being merely a copy which the witness saw made from the original entries in the store-book of the plaintif Ward v. Leitch.

2. Entries in the ledger and day-book of the plaintiff, in the handwriting of the party sought to be charged, may be offered in evidence, as declarations or admissions made by him, against his own interest. Ib.

3. The plaintiff offered in evidence entries made in his ledger of charges against the defendant's testator, and claimed that the same were admissible, because he had regularly, year by year, within twelve months from the date of such charges respectively, in pursuance of the 43d section of Article 37, of the code of public general laws, made oath to the sale and delivery of the goods, etc., charged in said ledger, the affidavit being written in the ledger, at the end of each year's charges. He did not, however, make the additional oath required by the same section, whenever a suit is brought. Held, That this defect was not cured by the act of 1864, ch. 109, and the evidence offered was properly excluded. An objection to the competency of a witness, made after he has been sworn, but before his examination in chief, is in time. I.

FIXTURES.

1. Trade fixtures and buildings for trade, no matter how strongly attached to the soil or firmly imbedded in it, are treated as personal property, and, as such, subject to removal by the person erecting them. Northern Central R. R. Co. v. Canton Co. of Baltimore.

2. The road-bed of a railway, the rails fastened to it, and the buildings at the depots, are real property; but, under certain circumstances, they may be trade fixtures, and be treated as personal property. 1b.

3. The ground upon which a tenant's right to remove his fixtures has been limited to the continuance of nis