NEGOTIABLE INSTRUMENT PURCHASER IN GOOD FAITH-PARTING WITH SECURITY. - Plaintiff's intestate had given his note to K. for $2,180, which was payable to the order of E., for the accommodation of the latter who was the real borrower, and received the entire proceeds of the loan, and acknowledged his liability therefor by giving his own note of the same date and of the same amount to intestate. When the note of intestate to K. was about maturing E. found himself unable to meet it in full, in consequence of which this arrangement was made. He agreed to pay intestate $1,180 in cash and transfer to him a note of defendant, not yet due,for $1,000, on condition that intestate should take up and pay the note to K. which was in reality the debt of E. This arrangement was carried out, the note to K. taken up and cancelled, and intestate surrendered the note of E. given as collateral. Held, that intestate took the note of defendant not merely for an antecedent debt but upon the further consideration of a cancellation of one security and the surrender of another. He therefore became a purchaser for a valuable consideration, and would not be affected by equities between defendant and E. in respect to the note of which he had no knowledge. Weaver v. Borden, 49 N. Y. 293; Youngs v. Lee, 12 id. 551. Judgment affirmed. Ward v. Howard. Opinion by Finch, J. [Decided Feb. 8, 1882.]

UNITED STATES SUPREME COURT ABSTRACT.

-

CHATTEL MORTGAGE—VALIDITY AS TO CREDITORS IMPERFECT DESCRIPTION OF DEBT APPEAL FROM

JUDGMENT FOR COSTS.-(1) No writ of error lies from a judgment as to costs alone. Canter v. American & Ocean Ins. Co., 3 Pet. 307; Elastic Fabrics Co. v. Smith, 100 U. S. 112. (2) A chattel mortgage executed in good faith did not truthfully describe the indebtedness secured; the real transaction was not set forth in detail. The amount of the indebtedness the parties intended to have secured was correctly stated, though the several items which made it up were not specified. They were however identified at the trial of an action involving the validity of the mortgage as against creditors, and the honesty of the transaction established. Held, that the mortgage was not invalid. In Shirras v. Caig, 7 Cr. 50, where a mortgage purported to secure a debt of £30,000, due to all the mortgagees, but was in fact intended to secure different sums due at the time to particular mortgagees, and advances afterward to be made, and liabilities to be incurred to an uncertain amount, Marshall, C. J., said: "It is not to be denied, that a deed, which misrepresents a transaction it recites, and the consideration on which it is executed, is liable to suspicion. It must sustain a rigorous examination. It is certainly always advisable fairly and plainly to state the truth. But if upon investigation the real transaction shall appear fair, though somewhat variant from that which is described, it would seem to be unjust and unprecedented to deprive the person claiming under the deed of his real equitable rights, unless it be in favor of a person who has been in fact injured and deceived by the representation." Here it has been found that all was fair. It was material for creditors to know the amount of the indebtedness secured, and the property covered. These are truly stated. To enforce his mortgage, the mortgagee must prove his debt, and he can only recover to the extent of what he proves. If the items which make up the debt are particularly described in the mortgage, it may save trouble in establishing the facts; but if there has been no fraud, and subsequent creditors have not been injured by the omission of specifications, identity may be established by parol. In making the proof the debt

must come fairly within the general description which has been given; but if it does, and the identity is satisfactorily made out, the mortgage will be sustained where good faith exists. (3) Among the debts intended to be secured by a chattel mortgage executed in good faith, was a note due from the mortgagor to S., and payable to the order of S. S. had died intestate leaving no debts, and no administrator of her estate had been appointed. All who would have been distributees under an administration of the estate had assigned their interest in the note to one C., who had indorsed it to the mortgagee. Held, that the mortgage was valid to secure the amount due in the note as against the creditors of the mortgagor. While the mortgagee may not have had the legal title to the note, he certainly held the equitable title which the mortgagor was at liberty to recognize if he would. Having recognized it in good faith and acted accordingly, his creditors cannot interfere. He was at liberty to select such trustee as he chose to hold the security he desired to give. Judgment of the U. S. Circ. Ct., W. D., Michigan, reversed. Wood v. Weimar. Opinion by Waite, C. J.

[Decided Dec. 19, 1881.]

MORTGAGE REDEMPTION - PAYMENT OF PRIOR INCUMBRANCE.-The purchaser, at a sale under a trust deed, being threatened with a sale of the premises under a prior trust deed, paid the debt secured by such prior deed. Held, that the incumbrancer, subsequent to the deed under which the sale was made, must, to redeem, pay the debt secured by the prior trust deed paid by the purchaser. Robinson v. Ryan, 25 N. Y. 320; Redmond v. Burroughs, 63 N. C. 242. A mortgagee who has paid a prior mortgage or other incumbrance upon the land is entitled to be repaid the sum so advanced when the mortgagor or his vendee comes to redeem. Page v. Foster, 7 N. H. 392; Arnold v. Foote, 7 B. Mon. 66; Harper v. Ely, 70 11. 581. The same rule applies to the payment by the mortgagee of taxes on the mortgaged premises, or any valid assessment thereon for public improvement. Dale v. McEven, 2 Cow. 118. Judgment of District of Columbia Supreme Court affirmed. McCormick v. Knox. Opinion by Woods, J. [Decided March 6, 1882.]

PATENT-NEW COMBINATION OF OLD DEVICES.Neither a cinder notch nor a cupola furnace is new. The use of a cinder notch for drawing off cinders from a blast furnace is as old as blast furnaces themselves. Held, that the application of a cinder notch for the same purpose to a cupola furnace is not patentable. In making this application there was no invention. Pearce v. Mulford, 102 U. S. 112. Decree of U. S. Circ. Ct., N. D., Ohio, affirmed. Vinton v. Hamilton. Opinion by Woods, J.

[Decided Jan. 9, 1882.]

REMOVAL OF CAUSE-UNDER ACT OF 1875 - SEVERING OF CAUSES OF ACTION.- Plaintiffs below, citizens of Minnesota, brought action in a court of that State against R., a citizen of Minnesota, and others, citizens of Wisconsin and Iowa, defendants below, as partners. The complaint alleged that the plaintiffs stored their wheat with the defendants at an agreed rate for storage, the defendants undertaking to buy the wheat and pay for it at the market price whenever the plaintiffs wanted to sell. The action was brought to recover what was alleged to be due on the price according to the terms of the contract. R. filed a separate answer in which he denied the existence of the partnership, and set up full performance of the contract. other defendants joined in a separate answer for themselves, in which they denied any partnership with R., and any contract between themselves and the plaintiffs. They also denied, generally, all the allegations of the complaint. April 12, 1880, all defendants, including

The

R., filed a petition for removal to the Federal court. At the next term of the Circuit Court the cause was remanded to the State court. The order was entered in the Circuit Court July 31, 1880, and a copy filed in the State court August 11, 1880. On the 12th of January, 1881, at a term of the State court, commencing January 10th, another petition was filed by all the defendants who were not citizens of Minnesota, for a removal of the suit as to themselves, on the ground that there could be a final determination of the controversy, so far as it concerned them, without the presence of R. as a party. The second removal was remanded. Held, that the remand was proper. The suit as it stood in the complaint was in respect to a controversy between the parties as to the liability of the defendants on a single contract. One ground of defense was that there was no partnership between the defendants, and that R. alone was bound by the contract that was made; and another, that the contract, by whomsoever made, had been fully performed. Clearly then under the rulings in the Removal Cases, 100 U. S. 457, and Blake v. McKim, 103 id. 336, the case was not removable under the first clause of the second section of the act of 1875, because all the parties on one side of the controversy were not citizens of different States from those on the other. Neither was it removable under the second clause of the same section, on the ground that there was in the suit a separate controversy wholly between citizens of different States. To entitle a party to a removal under this clause there must exist in the suit a separate and distinct cause of action in respect to which all the necessary parties on one side are citizens of different States from those on the other. The case of Barney v. Latham, 103 U. S., distinguished. The second clause of section 639, United States Revised Statutes, was repealed by the act of 1875, and as the second petition for removal was not filed in time under the act of 1875, it was of avail. The whole case depended on the first petition. Order of U.S. Circ. Ct., Minnesota, affirmed. Hyde v. Ruble Opinion by Waite, C. J. [Decided Jan. 16, 1882.]

NORTH CAROLINA SUPREME COURT AB

STRACT.*

OCTOBER TERM, 1881.

mortgage to secure the purchase-money will take precedence of all other liens or incumbrances. The true rule in the construction of deeds and all other written instruments is to give effect, if possible, to the intent of the parties thereto, by which is meant, that where it is clearly the intent of the parties that the land shall pass, the form of conveyance is not material, but the Acintent shall be effectuated by every legal means. cordingly this court declared in Howell v. Howell, 7 Ired. 491, that if necessary to give effect to the intention of the parties they would not hesitate to treat several instruments, executed at the same time, and relating to the same subject, as forming but one, that is, to construe the several instruments as component So too in parts of one and the same instrument. Bunting v. Jones, 78 N. C. 242, speaking of a deed to a purchaser of land, and a mortgage to secure the purchase-money, executed by him at the same time, it is said that the two were intended by the parties to be concurrent acts, and should therefore be construed as one act. In Holbrook v. Finney, 4 Mass. 566, where a father conveyed land by deed to his son, who at the same time gave a mortgage to the father to secure the purchase-money, the Supreme Court of that State held that the two instruments were to be considered as parts of one and the same contract between the parties; in the same manner as a deed of defeasance forms with the deed to be defeated but one contract though engrossed on several sheets. To the same effect is the decision of the same court in Clark v. Munroe, 14 Mass. 351, and that of the Supreme Court of New York in Stow v. Tift, 15 Johns. 458, and Jackson v. See also Jackson v. Austin, McKenny, 3 Wend. 233.

15 Johns. 477; Haywood v. Nooney, 3 Barb. 643; Curtis v. Root, 20 Ill. 53. It makes no difference that the mortgage was given to one who is not the vendor of the land. Kaiser v. Lembeck, 3 Iowa, 520. Moring v. Dickerson. Opinion by Ruffin, J.

SURETYSHIP

DUTY OF

CREDITOR-INTEREST.

(1) A creditor is not bound to a surety for active diligence against the principal, for it is the contract of the surety that the principal shall pay the debt; and the surety will not be discharged upon mere forebearance to sue, even if accompanied by a failure on the part of the creditor to inform him of the principal's want of punctuality. Due diligence is a question for the court and it is not error to refuse to submit an issue involving it to the juty. Deal v. Cochran, 66 N. C. 269. (2) A principal is entitled to interest on money collected by his agent only from demand and default of agent. Pipkin v. Bond, 5 Ired. Eq. 91; Thornton v. Thornton, 63 N. C. 211; Hyman v. Gray, 4 Jones, 155. Neal v. Freeman. Opinion by Ruffin, J.

FINANCIAL LAW.

- If

NEGOTIABLE INSTRUMENT-CONTRACT TO PAY MONEY WITH STIPULATION FOR ATTORNEY'S FEES IS NOT.an obligation for the payment of money, otherwise in the form of a promissory note, contain a stipulation that in the event of failure to pay the same at maturity, the maker shall pay in addition to the debt and interest, an attorney's fee for collecting the same, it will lose its character as a promissory note; and in determining the time within which the defendant must answer in a suit on such an instrument, it will be treated as a mere contract. See Revised Statutes, 1879, § 3514; First National Bank of Trenton v. Gay, 63 Mo. 33: Samstag v. Conley, 64 id. 476; First National Bank of Carthage v. Marlow, 71 id. 618; Smith v. Best, 42 id. 185; Pomeroy v. Betts, 31 id. 419; Cov. Mut. Life Ins. Co. v. Clover, 36 id. 392. First National Bank of Carthage v. Jacobs. Opinion by Ray, J. (73 Mo. 99.)

CORRESPONDENCE.

PROF. DWIGHT TO THE RESCUE.

Editor of the Albany Law Journal:

My attention has been called to some strictures made by you upon my criticisms upon "Mr. Field's Civil Code," published recently in the Evening Post of this city, which seem to demand a few words of comment.

You dwelt upon one or two incidental remarks in my article without dealing with its main scope or purpose. What I said as to Mr. Field's definition of a "ship" as being broad enough to include the "nautilus" (as it certainly is), and as illustrative of the slovenly character of the work, was rather a matter of pleasantry, hardly worth the notice of so grave a paper as the LAW JOURNAL.

You take occasion to criticize my opinion as a judge in the Commission of Appeals in the case of Churchill v. Onderdonk, as well as the number and length of my dissenting opinions in other cases. No one can be more sensible of my imperfections in these directions than myself. You seem, however, to think that when we have a Code, dissenting opinions will be a matter of the past. The great mass of dissenting opinions will be found to be on the construction of written language, and the Code instead of ending them will only multiply them.

In criticizing me you wander from the main points in issue. The inquiry before the people of the State is not whether I made a good judge eight years ago, but whether Mr. Field has made a good Code which ought to be adopted now. It is impossible for the friends of the Code to escape from this issue by attempting either to belittle or to slaughter its opponents. I do not know how far you are willing to publish any thing on the side of the question which I represent. I will, however, make a proposition which I deem eminently fair. What I will maintain in a proposed article for your paper is that the "Civil Code" is a highly inaccurate version of existing law. I will select a particular chapter, say of nine or ten sections, and comment upon them. The sections shall be published in full, and followed by the comment, which is to be made as brief as is consistent with a full and fair treatment of the subject. If I succeed in showing glaring and numer ous errors I shall argue that these are specimens of the whole production. No personal matters are to be introduced into my criticisms, nor into your replies; we are both to take the attitude of seekers after truth, and are not to resort to any rhetorical or other tricks of misrepresentation of an opponent.

I must respectfully urge that the LAW JOURNAL cannot afford to take a partisan view of this subject. Great interests are in jeopardy; burdensome litigation is in prospect. If we are to have a Code, why not eliminate obnoxious features before its enactment? The JOURNAL ought to be a leader in urging right measures, instead of bolstering up an antiquated project, poorly conceived, badly executed, imperfect in its groupings, inaccurate in its details, and fit only for the limbo of rejected inventions. If this were a personal matter I would be among the first to gratify Mr. Field. But I cannot regard it in that light. I deem it a matter of professional and civic duty to speak and write with all plainness, with the hope of doing something to avert a public calamity.

Will you inform me as speedily as possible whether my proposition is acceptable?

THEODORE W. DWIGHT.

NEW YORK, April 6, 1882. [For answer see currrent topics.]

Judgment affirmed, with costs - McKeever v. N. Y. C. & H. R. R. R. Co.; Schmitz v. Laughter; Fitch v. The Mayor, etc., of New York; Donovan v. Vandemark; Listare v. Best; The People ex rel. Jefferson v. Smith; Floyd v. Carow; Raymond v. Richmond; The People v. The Hydrostatic Paper Co.; McGraw v. Bagley; The Lowell Manufacturing Co. v. The Safeguard Fire Insurance Co. Judgment affirmed – Walsh v. The People; The People v. Bragle.- -Judgment reversed, new trial granted, costs to abide the eventPinney v. Orth; Mowry v. Peet; Jackson v. The Twentythird Street R. R. Co.; Harvey v. N. Y. C. & H. R. R. R. Co.; Badger v. Badger; Macken v. The Lamar Insurance Co.; Robertson v. The Metropolitan Life Insurance Co.; Powers v. Benedict; Douglas v. Haberstro.- Judgment for defendant at Circuit and order setting aside verdict for plaintiff reversed, and judgment on verdict for plaintiff, with costsGoodale v. Lawrence.- -The judgment of the General Term modified by declaring the legacy of $35 to be general and subject to abatement, and the annuity of $100 to be payable to Amelia during her life out of the principal and interest of the one-half of the fund described as resulting in part from the sale of the homestead, and any balance remaining upon her death to go to Emily; and as so modified affrmed; neither party to have costs - Bliven v. Seymour.· Judgment of trial court and General Term reversed and judgment ordered for the defendant, with costs— Goodwin v. Griffis.-Order affirmed with costs - Betsinger v. Chapman.- -Order appealed from reversed; judgment of Special Term affirmed, without prejudice to the application to the Special Term, to amend the same, with costs- Whitney v. Martine.- Order affirmed and judgment absolute ordered against the plaintiff on the stipulation, with costs - Ford v. The Union National Bank of Albany; Nehboss v. Bliss.Order reversed as to costs and appeal dismissed as to balance of order - The People ex rel. the N. Y. Society for the Prevention of Cruelty to Children v. Gilmore.Motion for reargument denied with $10 costsSchriver v. Schriver. Orders of Special and General Terms reversed, and writ of mandamus allowed - The People ex rel. Ryan v. French.- Orders of General and Special Terms reversed and motion to vacate order of arrest granted, with costs-Hoyt v. Godfrey.— Order reversed and petition denied, without costsThe Attorney-General v. The Continental Life Insurance Company.

THE

NOTES.

HE American Law Register for April continues the article on Mechanics' Lien on personal property, and gives the following cases: Lewis v. McCabe (Connecticut Supreme Court), on conditional sales, with note by Lucius S. Landreth; Soustiby v. Keely (U. S. Circ. Ct. Minnesota), on conflict between Federal and State decisions, with a note by Aldebert Hamilton; Seaman v. Commonwealth (Pennsylvannia Supreme Court), on criminal responsibility of principal for act of agent, with note by Henry Budd.The American Law Review for April contains the following leading articles: Rights and liabilities arising through the promotion and formation of a corporation, by Henry O. Taylor; Reissued patents the dictum of Justice Bradley examined, by Lewis M. Hosea; Unification of the law, by Nathaniel A. Prentiss. Also a reply to our answer on contingent fees, which deserves to be read, but will not warrant a rejoinder.

The Albany Law Journal.

THE

ALBANY, APRIL 22, 1882.

CURRENT TOPICS.

THE assembly have resolved by an overwhelming majority to investigate Judge Westbrook and ex-Attorney-General Ward. The friends of these gentlemen made a mistake in resisting the resolution. At the same time, the Legislature may find the precedent inconvenient. It amounts to this: whenever a single partisan newspaper, of politics opposed to those of a judge, chooses of its own motion or inspired by the malice of some disappointed stock-gambler, to make a charge against that judge, supported by allegations some of which are notoriously false, others absurdly inconsistent with its own almost contemporaneous expressions, and still others of a manifestly trifling character, the people of the State are to be subjected to the expense and that judge to the indignity of an "investigation." If this is to be the rule, any defeated suitor can easily take his revenge on a judge. This case is very different from that of the judges of the Tweed regime. There the bar association called for the investigation. Here nobody calls for it except the New York Times, supported by what one of the Tammany assemblymen with unconscious felicity described as "general curbstone opinion." But by all means let us have the inquiry. So far as we can judge it can result only in showing, what everybody knows perfectly well already, that Judge Westbrook has erred, certainly in point of delicacy, possibly in point of prudence and dignity. In appointing his relatives to lucrative positions he has not observed the finest delicacy, although nobody can pretend that there is any thing illegal about it. No judge ought to do it. In holding court anywhere except at the court-house or at his own office or chambers, he has acted in an imprudent and perhaps undignified manner, but if his orders have been right, there is no crime in it. It would be far better for a judge never to do it. Nobody but the Times pretends that he has ever made an unfit appointment as receiver, and the Times confines its accusations to a single case in which it had a few weeks before praised the appointees to the skies. The Times has also had to confess that none of the judge's orders were illegal. It is also true that Judge Blatchford made just such, and the Supreme Court judges at General Term approved those made by Judge Westbrook. We have known Judge Westbrook a good many years, and not only do we see no evidence of his wrong-doing, but we do not believe him capable of intentional misconduct. His personal character is remarkable for its purity, as the Times has reason to know. Nemo fuit repente turpissimus. We shall not easily believe that the judge has in advanced life given the lie to his whole

and while it is pending let the Times borrow temporary decency enough to refrain from attempting any further to falsify and prejudice the case. It has grossly ridiculed the defenders of the judge in the Legislature, and already assures the judiciary committee that it has its "porochial eye" on them.

We have a dilemma to propose to our friends who do not believe in the practicability of written laws. It is this: If the law can be certainly ascertained by resort to the reports, where it is written down, what is the objection to writing it all down in one book of statutes? If the law cannot be ascertained by resort to the reports, is it not high time to write it down somewhere? Our friends, like the man in the fable who was entertained by the satyr, blow hot and blow cold. In one breath they tell us that the law is so vague and "elastic" that it cannot be written; in the next breath they tell us that it is already written in the reports, and all we have to do is to go there and read it. At such reasoning as this they must not be surprised if the people grow impatient, and like the satyr, turn them out in the cold.

The objection that new Codes give rise to litigations seems a very shallow one. There is no doubt about the fact. So long as there is a learned body of men hired to quibble and pick flaws, so long will any statute give rise for a time to litigation. But it is singular that nobody has ever thought of advancIt is only ing this objection to statutes as statutes. raised to Codes. The great statutes of usury, limitations and frauds have filled many volumes of litigated cases, but we very seldom hear any thing disrespectful said of the practical side of these statutes,

however much men have sometimes doubted of their theory and policy. In New England there are modern statutes requiring one who has been injured by a defect in a highway to give written notice of his claim to the town, as a condition precedent to recovery of damages. This statute is a fruitful source of construction, but nobody rails against it on that account. So of the modern statutes concerning married women and the right of prisoners to testify. Every new law has to go through a course of construction, bounded only by the ingenuity or stupidity of counsel, and the obstinacy and prejudice of judges, on the one side, and the inevitable ambiguities and limitations of human language on the other.

A few days ago, in England, a Parsee, being called as a witness, and refusing to be sworn either upon the Old or New Testament or the Koran, was permitted to bind his conscience by holding openly in his hand a sacred relic, which he was accustomed to carry about his person, and thus taking the oath. The judge at the same time remarked that strictly speaking a Parsee should be sworn holding the tail of a cow. Tyler in his History of Oaths says that Sir James Macintosh told him that at Bombay he once had a cow brought into court for this purpose. This would seem a good way to swear a milkman,

but a Parsee ought to be sworn upon a grammar. The twelve judges, in Morgan's case, 1 Leach. 24, held that a Mahometan might swear upon the Ko

ran.

Y..

Assemblyman Brodsky proposes an amendment to section 412 of the Penal Code, which prohibits the carrying of concealed fire-arms or sharp or dangerous weapons, by excepting peace-officers and "agents and officers of the American Society for the Prevention of Cruelty to Animals." We confess we cannot understand why our friends Messrs. Bergh and Gerry should have this dangerous privilege. Are their lives more in danger than those of other men? How are these weapons properly to be made available in preventing cruelty to animals? Do they propose to go about putting moribund and suffering animals out of their misery? Or do they propose summarily to execute capital punishment. on the objects of their corporate indignation? We cannot believe they mean to use such weapons against the various judges who have so unfeelingly set them down of late. We need light on this subject, and we hope our learned brother Gerry will shed it at once.

In Ormichund v. Barker, 1 Atk. 21, it was held that a Gentoo might be sworn by touching the foot of one of his priests. In Eutrehman's case, Cur. & M. 248, it was settled that a broken china saucer is essential to a Chinaman's oath. The Israelite swears upon the Pentateuch or Old Testament, with covered head. The Bedouin grasps the middle tent pole and swears by the life of the tent and its owner. One form of swearing among the Scythians was by the royal hearth. In an interesting paper by Mr. James L. Angle, of Rochester, N. on the Supernatural in the Administration of Justice," he says: "In his treaty with the king of Sodom, Abraham swore by the uplifted hand (Gen. xiv, 22); in his treaty with Abimelech he swore by Elohim (Gen. xxi, 23); and the Hebrews were commanded to swear by the name of Elohim (Deut. vi, 13; x, 20). The angel in the Apocalypse is represented as combining the two-the uplifted hand and the name of God (Rev. x, 5-6); when standing on sea and land he swears that time shall be no longer. Jehovah is represented as swearing by Himself (Gen. xxii, 16; xxvi, 3; Ex. vi, 8; Heb. vi, 13-17); as swearing by His own life (Num. xix, 28), and by the uplifted hand (Deut. xxxii, 40). * * * Jacob swore by the fear of his father, Isaac (Gen. xxix, 53), and Joseph by the life of Pharaoh (Gen. xi, 11-15).” Erskine once fell in with a witness who insisted on being sworn with the uplifted hand, because the angel in the Apocalypse was thus sworn. "But," said Erskine, "you are no angel; and then you don't know he would have been sworn if he had stood on dry land, as you do." We heartily sympathize with Mr. Angle in his observations about "kissing the book." He says: "The custom of kissing the leather covering of a Bible prevails with us; usually the book has been in use for that purpose for many years; it has passed through thousands of dirty, perhaps filthy hands, and been pressed to 10,000 lips, many of them redolent with tobacco juice or reeking with other unsavory liquids, some of them bloated, sore and corrupted, by disease and debauchery. I have seen Bibles in use for this purpose whose stained and begrimmed covers looked like fit mediums for contagion, and emblematic of any thing but purity and truth; and the osculatory part of our form, while it might make the gorge rise, would certainly have nothing sacred or solemn in its influence. We read that when 'Jacob kissed Rachel he lifted up his voice and wept' (Gen. xxix, 1); why he wept I recollect hearing discussed in my younger years, and the young people of my time could never satisfactorily account for such an effect from such a cause, but I can understand why the kissing of some of our court-room Bibles should produce a feeling distorting the features as much as weeping." In People v. Cook, 4 Seld. 84, an oath on Watts' Psalms and Hymns, the affiants supposing it to be the Bible or New Testament, was held binding.

The First Department General Term have recently held that a wife may sue her husband for assault and battery. This is contrary to the former decisions. It is true, as the court say in the prevailing opinion, that the language of the statute is quite comprehensive enough to include the husband; but the question after all is, did the Legislature intend to include the husband? The language of the law was once quite comprehensive enough to allow husband and wife to testify for or against one another, but it was unanimously held that they could not so testify, because such was manifestly not the intention. We doubt the policy of allowing husband or wife to recover damages the one against the other for such wrongs. Such matters are punishable criminally, and that is the appropriate way to treat them. At all events, "she hath retaliation to beat him again if she dare." We shall publish the opinions in full next week. This decision of course will give great satisfaction to the strong-minded women. Taken in connection with the generally prevailing doctrine that the husband is still liable for his wife's wrongs to others, disconnected from the management of her property, it is calculated to give them enjoyment. But just now the Supreme Court of New Hampshire, in Harris v. Webster, have held that the husband is not liable for his wife's slander of another; upon the theory that under modern legislation the wife having ceased to be the slave and creature of the husband, he ought not to be held responsible for keeping her tongue or fingernails within bounds. It is no longer now as it was when old Selden wrote: "He that will keep a monkey, 'tis fit he should pay for the glasses he breaks." So it is held in some other States under the provisions of the statutes, but as yet in our State the husband has no such compensatory immunity. Tait v. Culbertson, 57 Barb. 9. If the new doctrine of the Supreme Court of our State is upheld, it would be but fair to cancel the husband's liability for the wife's assault and battery, slander, and the like. Agreeing with the New Hampshire case is