insurance, said that he had $1,500 or $2,000 in the Peunsylvania Mutual, he did not know which, as his policy was not at the place where he made the application. He was under the impression that it was $1,500, and the agent wrote it down $1,500, and the insured signed the application. Held, that this constituted a warranty and the insured was, although there was no intent to misrepresent, liable for its breach. It was not a case of mutual mistake. In an action or a defense founded on a breach of warranty, it is immaterial whether the party making the warranty did or did

not believe the fact warranted. In this case it was not material whether the agent knew of the breach. "Mere mutual knowledge by the assured and the agents of the insured of the falsity of a fact warranted, is entirely inadequate to induce a reformation of the policy so as to make it conform with the truth. It is rather evidence of guilty collusion between the agent and the assured, from which the latter can derive no advantage." Knowledge by the underwriter, or by him and the assured, of the breach. of a warranty, at the time it is made, does not relieve the assured from the consequences of the breach, and is no basis for reforming the policy, though equity will reform it in the case of mutual mistake of facts. It is not true that the rule which prevails in sales of personal property, namely, that a warranty does not embrace defects known to the purchaser, is also extended to warranties contained in policies of insurance. The purpose in requiring a warranty is to dispense with inquiry and cast upon the assured the obligation that the facts shall be as represented. A representation and a warranty are essentially different things and call for the application of different rules of law. Knowledge that the answer was untrue might relieve against a false or imperfect representation. State Mutual Fire Ins. Co. v. Arthur, 6 Casey, 315. This doctrine, enunciated in that case, has not since been doubted in Pennsylvania. In Cooper v. Farmers' Mut. Ins. Co., 14 Wright, 299, it was held that that which is a warranty in a policy of insurance by its terms, cannot be shown by parol evidence to have been inserted by mistake. No principle of law will enable a party, who guarantees a fact upon which a contract for insurance is based, which fact is afterward found not to exist, to enforce the contract. He agrees to answer for the truth of the fact, and cannot escape on the ground of his mistake as to its existence. But if by a fraud or mistake of the other party, or of the agent of the other party while acting within his authority, he be induced to sign a statement which he did not make and did not intend to make, such statement is not only void as to himself, but he shall not lose the benefit of a contract for which he paid the stipulated consideration, and held without knowledge of the mistake or fraud. If an agent for an insurance company, intending to write an answer to his question as made by the applicant, write something else, and the paper is signed, both believing the answer correctly written, there is a mutual mistake and the policy may be reformed. Where the answer is written as made, there is no mutual mistake, and no relief for him who warranted it, unless the agent deceived him into the making of it. The case of Smith v. Farmers and Mechanics' Mutual Fire Insurance Co., 8 Nor. 287, and Eilenberger v. Protective Mutual Fire Insurance Co., id. 464, are not at all in conflict with prior decisions as to the effect of a warranty actually made. They relate to the admissibility of evidence to show fraud or mistake by an agent of the company of which the assured had no knowledge till after his loss, and his right to recover upon his policy, notwithstanding such fraud or mistake. Of like purport is the decision in Insurance Co. v. Wilkinson, 11 Am. L. Reg. 485, where it is said in the opinion, that the insured did not intend to make the representation when he signed the paper, did not know he was doing so, and

had refused to make any representation on the subject; it was held that the answer written by the agent was his, not the applicant's, and his principal, the company, was bound by it. Pennsylvania Sup. Ct., June 20, 1881. Commonwealth Mutual Fire Insurance Co. v. Huntzinger. Opinion by Trunkey, J.

OVER VALUATION-CONDITION AS TO OWNER

SHIP. (1) A policy of insurance is not avoided by an overvaluation, in accordance with the terms of the instrument, where such valuation was made in good faith and only assumed to make a true representation of the facts so far as they were known to the applicant. (2) A policy of insurance provided that if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, or if the building stood on leased ground, it must be so represented and expressed in the written part of the policy, or the same would be void. Held, that so long as the assured, under claim of right, had the exclusive use and enjoyment of the insured property, without any assertion of an adverse right or interest in it by any other person, he had an insurable interest under the condition of the policy. Defects in the proofs of loss, by reason of the absence of the builder's certificate and that of the nearest notary or magistrate, is immaterial where the insurers have repudiated all liability under the policy upon other grounds. Authorities referred to: Franklin Fire Ins. Co. v. Vaughn, 2 U.S. 516; National Bk. v. Insurance Co., 95 id. 673; Sheets v. Selden's Lessee, 2 Wall. 177; Whitney v. Olney, 3 Mason, 280; Gibson v. Brockway, 8 N. H. 465; Ramsey v. Phoenix Ins. Co., 2 Fed. Rep. 429; Bonham v. Iowa Cent. Ins. Co., 25 Iowa, 328; Stevenson v. London & L. Ins. Co., 26 U. C. T. R. 148. U. S. Circ., S. D. N. Y., Sune 4, 1881. Miller v. Alliance Insurance Co. of Boston. Opinion by Wallace, D. J. (7 Fed. Rep. 649.)

REFORMATION OF, ON GROUND OF MISTAKE. — Å fire insurance company by its agent S. underwrote for B. a policy insuring against fire certain buildings and property in Cumberland, to the amount of $2,500. The property being destroyed by fire the company refused to pay the insurance, alleging non-compliance by the assured with the following conditious of the policy: "If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, or if the building insured stands on leased ground, it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void." The following condition was also in the policy: "If the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, be not truly stated in the policy, then and in every such case the policy shall be void." The property was insured as B.'s property; but before the time the policy was written, B. having borrowed $6,000 from H., had, instead of a mortgage, created a ground rent in his favor of $420 per annum, redeemable on payment of the sum advanced, being in effect a lease for ninety-nine years. This fact was not written on the policy. B. sued at law, and the court having decided that he could not maintain his action on the policy unless II.'s interest was described in it, he dismissed his suit at law and filed a bill in equity to reform the poliey, on the ground that the statement of the existence of an incumbrance on the property and the real interest of the parties intended to be insured was omitted by the inadvertence and mistake of S., agent of the appellant, and of J., B.'s agent, to whom the bill alleged the nature of H.'s interest was known. In their testimony S. and J. both denied all knowledge of H.'s interest. Held, that there not being a mutual

mistake the relief prayed could not be granted. Relief will be granted in cases of written instruments only where there is a plain mistake clearly made out by satisfactory proof." Story's Eq. Jur., § 157; Gillespie v. Moon, 2 Johns. Ch. 595; Lyman v. United Ins. Co., 2 id. 630; Henkle v. Royal Assurance Co., 1 Ves. Sen. 317. This principle of equity is recognized and adopted by this court in several recent decisions. Groff v. Rohrer, 35 Md. 327; Kearney v. Sascer, 37 id. 264. The theory upon which the jurisdiction is founded is that a mistake has been committed whereby the instrument to be reformed misrepresents the true intent of the parties. This mistake must be mutual and the facts necessary to prove the mistake must be established by the clearest and plainest evidence. Harrison v. Howard, 1 Ired. Eq. 407 Brady v. Parker, 4 id. 430; Bailey v. Bailey, 8 Humph. 230. Maryland Sup. Ct., Oct. term, 1880. Farmers' Insurance and Banking Co. v. Butler. Opinion by Bowie, J. (54 Md. 233.)

CRIMINAL LAW.

EVIDENCE -FOOT TRACKS EXAMINED IN ABSENCE OF ACCUSED. On a trial for murder, where the prosecution relies upon circumstantial evidence, it is competent to prove that certain tracks were measured and on comparison corresponded with the boot of the prisoner in size and shape; and this where the measurement and comparison are made without the presence of the prisoner or previous notice to him. It is not necessary that a witness should be an expert to entitle him to testify as to the identification of tracks. State v. Reitz, 83 N. C. 634. North Carolina Sup. Ct., Jan., 1881. State of North Carolina v. Morris. Opinion by Ruffin, J. (84 N. C. 756.)

The

MAGISTRATE-JUSTICE OF THE PEACE-LIABILITY OF — MINISTERIAL AND JUDICIAL FUNCTIONS. functions of a justice of the peace are either ministerial or judicial. They are ministerial in preserving the peace, hearing charges against offenders, issuing summons or warrants thereon, examining the informant and his witnesses and in taking those examinations; binding over the parties and witnesses to prosecute, bailing the offenders or committing them for trial, etc. They are judicial, as when he convicts for an offense; and his conviction drawn up in due form and unappealed against, is conclusive, and cannot be disputed in a civil action. 1 Bl. Com. 354. A magistrate is not punishable at the suit of a party, but only at the suit of the king, for what he doth as judge, in matters which he hath power by law to hear and determine without the concurrence of any other; for regularly no man is liable to an action for what he doth as judge; but in cases wherein he proceeds ministerially rather than judicially, if he act corruptly, he is liable to an action at the suit of the party, as wel as to an information at the suit of the king. But he must have acted corruptly to subject himself to punishment by information; for though he should even act illegally, yet if he acted honestly and candidly, without oppression, malice, revenge, or any bad view or intention, an information will not be granted against him, but the party complaining will be left to his ordinary remedy by action or indictment. Bacon's Abr. (Am. ed.) 426; and see Gregory v. Brown, 4 Bibb,

28; Rex v. Cozens, 2 Doug. 426. From these authorities the principle is clearly deducible that where a magistrate is acting ministerially, if he act corruptly or oppressively, or from any other bad motive, he is answerable to the criminal law. North Carolina Sup. Ct., Jan. term, 1881. Stute of North Carolina v. Sneed. Opinian by Ashe, J. (81 N. C. 816.)

STATUTORY CONSTRUCTION — STATUTE AS TO CONSPIRACY TO INTIMIDATE. A statute of Kentucky confederate or band themselves together for the purprovided thus: "If any two or more persons shall pose of intimidating, alarming and disturbing any person or persons, or to do any felonious act, they or either shall on conviction thereof be confined in the

penitentiary," etc. Held, not to apply to a case where persons by threatening to inform the United States authorities that complainant was violating the Federal therefor, forced him to pay a sum of money to them. revenue law and to testify against and prosecute him The mischief the Legislaturo intended by the statute to provide a remedy against was the confederating and banding together of disorderly and evil-disposed persons, for the purpose of unlawfully, and by the use of physical force, or threats of force and violence, overawing and injuring the persons and property of obnoxious or defenseless individuals, to the disturbance of public tranquillity and order. Intimidating, alarming and disturbing, in the sense the words aro obviously used by the Legislature, as well as according to their legal signification, imply the use of physical force or menace, and involve a breach of the peace. If complainant was guilty of violating the Federal revenue laws it was not unlawful for any one to have him prosecuted for the offense or to confederate for that purpose. Kentucky Court of Appeals, Sept. 10, 1881. Embry v. Commonwealth of Kentucky. Opinion by Lewis, C. J.

TRIAL CONVICTION ON ONE COUNT ONLY, ACQUITTAL AS TO OTHER COUNTS.- - Where the jury find a defendant guilty on one count, and say nothing in their verdict concerning other counts, it will be equivalent to a verdict of acquittal as to them. 1 Whart. Crim. L., § 421. In Werngopper v. State, 7 Black. 186, the defendant was found guilty on four counts, and the jury did not pass on the first. With leave of the rendered on the verdict. It was held that the entry court a nol. pros. was entered as to this and judgment find on one of the counts was "equivalent to an exof a nol. pros. was a nullity and that the failure to press verdict of not guilty." The same principle is declared with equal explicitness in Morris v. State, 8 S. & M. (Miss.) 762; Stoltz v. People, 4 Scam. 168; Guenther v. People, 24 N. Y. 100; Kish v. Commonwealth, 9 Leigh, 627; and in State v. Phinney, 42 Me. 384. North Carolina Sup. Ct., Jan., 1881. State of North Carolina v. Taylor. Opinion by Smith, C. J.

RECENT ENGLISH DECISIONS.

SURETYSHIP-CONTRIBUTION SURETY RECEIVING SECURITY MUST SHARE WITH CO-SURETIES.-A. having borrowed a sum of money which he failed to repay, his four sureties contributed equal amounts to make up the sum. Two of them, when becoming sureties for A., had, unknown to the other two, obtained from him an assignment of certain property as a security against any loss they might sustain in consequence. Held, that the other two sureties were also entitled to the benefit of the assignment. Where a surety obtains rom the principal debtor a security for the liability he has undertaken, he is bound to bring into hotchpotch, for the benefit of his co-sureties, any benefit which he receives under the security, though he orig

inally bargained with the principal debtor that he should have the security, and the fact of the bargain and of the security having been given was unknown to the co-sureties. Dering v. Earl of Winchelsea, 1 Cox, 318; Pendlebury v. Walker, 1 Y. & C. Ex. 424; Story Eq. Jur., § 499; Miller v. Sawyer, 30 Vt. 417; Hall v. Robinson, 8 Ired. 56. Ch. Div., March 20, 1881. Steel v. Dixon. Opinion by Fry, J. 45 L. T. Rep. (N. S.) 142.

TITLE

-WHEN POSSESSION OF CHATTELS DOES NOT

IMPLY OWNERSHIP. - The custom of hiring furniture for the purposes of hotels is so notorious that no person giving credit to a hotel keeper is entitled to assume that the furniture of which he is in possession is his own property. The foundation of the doctrine of "reputed ownership" is that a man has been permitted to obtain false credit; this custom is so common and so well known that a man cannot gain false credit by the possession of furniture. Ct. of App., May 9, 1881. Crawcour v. Salter. Opinion by James, L. J. 45 L. T. Rep. (N. S.) 62.

CORRESPONDENCE.

RELATIVE OF THE HALF BLOOD.

Editor of the Albany Law Journal:

As to the proposition and inquiries contained in the communication published in your JOURNAL the 22d inst., and signed "Uncertain," I would respectfully submit the following: C. and E. having been born of the same father, but not of the same mother, were relatives of the half blood, according to the definition given by Webster: of course there is no doubt that on the death of A. (dying intestate), C. and E. would be entitled to an equal share of two-thirds of his estate (personal) under the statute of distributions; but I think the case would be different if on the death of D. (dying intestate), C. and E. were both living, in which event would not E. take the whole of the estate (personal) of D., which she had in her own right, and C. a moiety of the remainder of the estate (personal) which D. received from A.? On the death of E., the relation of relative of the half blood no longer exists between C. and E.; and in order that C. may be entitled to take the whole of the estate (personal) of D. (dying intestate), there must be some relation by consanguinity between them, but there is none; the only relation being simply that of stepmother and stepdaughter. We will assume, for example, that D. has brothers and sisters living; and at the time of her death (dying intestate) she is worth $5,000 in personal property, given her by her father; now would it not be manifestly unjust that C. should take this property, and deprive the brothers and sisters of D. of its uses and benefits? I think that such a practice would be against reason and justice and in violation of the spirit and intent of the statute. Therefore we may safely conclude by stating that C. (after the death of E.) is not a relative of the half blood (referred to in the statute of distributions) and "on the death of D. is entitled to take simply the remainder of the personal estate which D. received from A,

Respectfully yours, FRANK H. BRANDOW. COXSACKIE, N. Y., Oct. 26, 1881.

fense, by Edward B. Hill; Reissued Patents - the position of the Supreme Court, by Rowland Cox. The Southern Law Review for October-November contains the following leading articles: Misconduct of Juries, by Seymour D. Thompson; Universal Marriage, by James Schouler: the State and its creditors, by Charles Martindale; Title from fraudulent vendees of chattels, by J. M. Grant. The Review says, editorially: "It is curiously significant of the dullness of the heated term, to find our exchanges, weekly and monthly, so sadly padded' with effete jests, copied articles, and cases long since reported and digested. Even the scissors have found a scanty harvest - straw rather than grain." This is in the same article in which the editor tells about his two months' vacation at Middle Park, Colorado, gives a neat puff to the Atchison, Topeka & Santa Fe Railroad, and speaks thus of his boarding-house: "He who like ourselves is fortunate enough to find lodgings at the ranch, and a seat at Mrs. Cozier's table, will, of course, seek no further. There we found all the substantial comforts of home and all the best gifts of the mountains, whether of health or pleasure. The vital spark that does not rekindle there must be dim indeed." This now is ideal journalism! — But where is the "spark?" -The Virginia Law Journal for October has a leading article by R. M. Brown, entitled, "Has a creditor at large the right to impeach an unrecorded deed?"

We have received Martindale's "Commercial and Legal Guide," published at Chicago, with the request to notice it "as its merits deserve." Turning to the summary of New York collection laws, we read: "Limitations. - Open accounts and contracts not in writing, two years; upon contracts in writing, four years." This is indeed a fine recommendation for the manual, and especially for the lawyer to whom the precious information is credited!

The

The "half-breeds" have got into court. The Rev. Mr. Hinman, for many years a missionary among the Dakota Indians, has sued Bishop Hare for libel. alleged libel consisted in a pamphlet charging Mr. Hinman as being regarded in the Indian country as a man of abandoned character, and that the housemother of one of the bishop's boarding schools reported to him that Mr. Hinman, while visiting her school, had scandalized her elder girls by beckoning to them in a suspicious way from his window in the twilight, and that he had abashed a pretty half-breed young woman, her assistant, by saying to her “—, I love you; won't you walk with me to-night; I want to talk with you." Mothers, it was charged, had refused to send their girls to the Santee boarding school on the ground that girls sent there were tampered with by the missionary. Another lady had informed the bishop that "to her great alarm he seized her firmly around the waist, and though she struggled to get from him, kissed her several times, and refused to let her go." Probably the missionary to adapt the expression of Rufus Choate about the amorous hay-makers -was only "seeking to mitigate the austerities" of proselyting. On a recent motion for a commission to examine witnesses, Judge Potter said: "The plaintiff had the legal right to bring his action in this State, but his reasons for doing so are not very manifest. Whatever they may be, I am quite sure from what was disclosed upon the motion, the trial will not be likely to increase the amount of contributions to convert the Indians to Christianity, or to increase the respect of the Indians for some of its professors. Perhaps it was thought the further away from the Indians the trial should be had, the better it would be for their faith."

The Albany
Albany Law Journal.

ALBANY, NOVEMBER 19, 1881.

CURRENT TOPICS.

O the star-routers are likely to get off! Judge Cox has quashed the information in the test case, and no indictment will lie, because the offense is outlawed! Why were these men ever proceeded against by information? No plausible reason is given. It is an unusual remedy, and the offense certainly was intrinsically indictable. It is said information was resorted to because the offense was outlawed by indictment. We do not so understand it. We understand the statute was running hard, but that somehow owing to misunderstanding between the attorney-general and the district attorney the case was not presented in time. It was too small business for the attorney-general to prosecute a company of fellows charged with defrauding the government out of $3,000,000! The district attorney was probably too busy in interviewing Guiteau and arranging with the New York Herald for the publication of the assassin's biography! Nothing remains now to complete the triumphant career of these precious officials but to let Guiteau be acquitted. It is said that some of the other offenses of the star-routers are still indictable. We shall be disappointed if this turns out true; or if they are ever tried if they are indicted; or if they are ever convicted if tried. The whole thing reminds us of Samuel Weller's looking up into the court-room skylight from the witness-stand, when asked by the little judge if he saw the man who had just called out to him, and replying that he did not see him. As to Judge Cox's holding that information is the wrong procedure, because the crime is "infamous," it strikes us at this moment that he is right. decision is based on the meaning of the word considered in the light of the Federal statutes. Conceding that the offense is not "infamous" at common law, he still holds that the constitutional provision as to infamous crime embraces those subsequently declared infamous by statute, as well as those infamous at common law. But he seems to be the only official in the National capital who thinks such things infamous. The atmosphere of Washington seems malarial in more than one sense.

His

A correspondenta distinguished lawyer-in another column argues that the judges of our Court of Appeals ought always to have had previous experience as Supreme Court judges at Circuit and General Term. This is certainly a serious consideration. For ourselves, while we regard previous judicial experience as very desirable, we do not consider it indispensable. Many lawyers who have never been on the bench have had such experience at the bar as may well supply the defect. Many of the greatest judges of ultimate courts had had no previous judicial experience. Marshall, Taney, Chase, Wait, VOL. 24.- No. 21.

and Church are eminent examples that at the moment occur to us. When our correspondent refers to our Court of Appeals as with one exception now composed of men without previous judicial experience, he puts a strong weapon into the hands of those who differ from him. Perhaps he would say this court is an exception to the rule which he would lay down. We do heartily agree with him, however, so far as to concede that it is extremely desirable, if not absolutely indispensable, that on such a bench there should be some graduates of the judicial school of training. There is still one argument in favor of a bench mainly composed of judges without such previous training; they are much more apt to be teachable and patient than the others. A comparison between the late Chief Judge Church and the late Judge Grover will illustrate our meaning to those who knew them. After all, most depends on the man, and there cannot well be any inflexible rule about the matter. In respect to the impending vacancy in our court, we should like to see a Supreme Court justice promoted. We speak of course of the ultimate vacancy, because it is taken for granted that Judge Andrews will be appointed chief judge.

In connection with our recent item in reference to Dr. Pincoffs' lectures on the civil law, our attention is called to the fact that ther will be a regular series of lectures on Roman law and the codes derived from it, in the second year of the course of Columbia College School of Political Science, by Dr. E. M. Smith. This school was established last year, and is to have a course of three years. In the second year are also to be lectures on comparative constitutional law, by Prof. Burgess. The curriculum embraces the following subjects: the History of Philosophy; the History of the Literature of the Political Sciences; the General Constitutional History of Europe; the Special Constitutional History of England and the United States; the Roman Law, and the Jurisprudence of existing Codes derived therefrom; the Comparative Constitutional Law of European States and of the United States; the Comparative Constitutional Law of the different States of the American Union; the History of Diplomacy; International Law; Systems of Administration, State and National, of the United States; Comparison of American and European Systems of Administration; Political Economy and Statistics.

He may

In Bast v. Byrne, 51 Wis. 531; S. C., 23 Alb. L. Jour. 410, it was held that a master, retaining a servant in his employ through a stipulated term of service, cannot deduct from his wages for lost time, nor compel him to make up the lost time. discharge him for an unauthorized absence, but by receiving him back after absence he waives the right. The converse of this was held in the city of New York recently. A servant of the city worked ten hours a day, at an agreed price per day, and subsequently learning that eight hours constituted a legal day's work, sued the city for compensation

for the extra hours. Judge Barrett held that the servant was not bound to work more than eight hours a day, but if he did he was without remedy.

The General Term in the Fourth Department recently adjourned in Rochester, after four weeks of session and consultation, handing down 136 decisions. The court has decided 475 cases during the last year. The calendar of the last term contained 633 cases, including 83 appeals from orders. These statistics show the necessity of more judges. Such burdens are cruelty to the judges we go no further.

The absurdity of the accepted doctrine, that a servant is not necessarily negligent in continuing to work with a palpably dangerous or imperfect implement or machine, if he has called the attention of the master to the defect and the master has promised to amend or repair it, was never more strongly illustrated than in the case in the city of New York, of Marsh v. Chickering, recently decided at General Term. The plaintiff was in the defendant's employ, and part of his duty being to light certain out-door lamps, he had requested that his ladder should be hooked and spiked so that it should not slip. The defendant promised to have the ladder thus guarded, but neglected to do it. Relying on the promise, the servant continued to use the unsafe ladder, and it slipped and he was injured. The General Term set aside a nonsuit, holding that the servant's contributory negligence was a question for the jury. This ruling is perhaps within the settled rule, but the rule seems to us none the less absurd under such circumstances. The ladder was none the less liable to slip because of the master's promise. Cases may possibly be imagined where the danger is so remote and improbable as to justify submitting the question to a jury. But as a rule we say that if a defect is so dangerous as to call upon a prudent master to repair it, it is too dangerous to justify a prudent servant in continuing to subject himself to it; and the master's promise to repair renders it none the less dangerous.

The English are rather slower than ourselves in adopting legal reforms, but when they get started they are apt to be more radical. Now a parliamentary committee recommends the abolition of written pleadings and the denial of the right of trial by jury in many actions! No jury is to be allowed in actions for debt or damages under £200. All actions, except libel, slander, seduction, false imprisonment, malicious prosecution and breach of promise of marriage, are to be tried by a judge, unless otherwise directed. And when a jury is directed to try a cause the judge may say he is dissatisfied with the verdict, and a new trial shall thereupon take place. In respect to the first matter, it seems to us impracticable to dispense with written pleadings. They may be ever so simple - they cannot be too simple, so long as they are plain- but they must be had to give notice of, define, and preserve the issue. As to the other matter, suitors will probably

find a short road around the limitation of £200 in actions of damages by always demanding more than that amount. We have uttered our creed so often on this subject that it has become wearisome even to ourselves, but we are only confirmed by contradiction. So we will now utter only one sentence on the subject, namely: If any suitor now entitled to a jury trial wants it, let him have it; if the parties are willing to dispense with it, let them; but Heaven forbid that any judge should have the right to set aside a verdict at his caprice, and that the questions of fact of a community should always be tried by one or another of the same small class of pre-appointed individuals!

NOTES OF CASES.

OME correspondent, whose name we cannot re

SOM

6

The

call, lately asked us our opinion whether in an action against a National bank for the penalty of double the amount of interest exacted on a usurious loan, the bank could offset the note. We replied that we thought it could not. We then knew of no adjudication on the point, but the point is now decided, in harmony with our opinion, in Lebanon Nat. Bk. v. Karmany, Pennsylvania Supreme Court, June, 1881, 12 Rep. 540. The court said: plaintiff's claim is not within the Defalcation Act, which applies where the parties are indebted to each other upon bonds, bills, bargains, promises, accounts, or the like.' It arises from the defendant's violation of a statute remedial and penal, which gives the borrower the right to recover, for the two-fold purpose of compensation and example. Overholt v. Bank, 82 Penn. St. 490; S. C., Thomp. Nat. Bk. Cas. 883. It was decided in Barnet v. Bank, 8 Otto, 555; S. C., Browne's Nat. Bk. Cas. 18, that in an action on a bill of exchange the defendant could not set off a claim for twice the amount of illegal interest he had paid the bank; that his remedy for the wrong was a penal suit, and he could have redress in no other mode or form of proceeding. That set-off is not allowed in such action is well settled. When the prescribed action for recovery is debt, or action in the nature of debt, it gives no right of set-off. After the plaintiff shall have obtained judgment; if the defendant have a judgment against the plaintiff in another case, there is power in the court to order one judgment to be set off against the other, governed by equitable principles. But such principles do not apply in a suit when the claim is in the nature of a penalty for violation of a statute so as to allow de

falcation."

In Thompson v. State, Supreme Court of Alabama, 12 Rep. 526, it is held that one has a right to drive off a hog trespassing on his premises, but has no right unnecessarily to kill it with dogs and sticks. The court said: "Every person has a lawful right to defend his person or property, not for the purpose of redressing an injury already perpetrated, but purely upon the principle of prevention in the present and for the future. Yet this right,