reconcile the contradictions, supply the omissions, and amend the imperfections of the original text." The commissioners have been changed from time to time, except the laborious hard working lawyer, Montgomery H. Throop, and have devoted nearly six years in making and perfecting the proposed revision. The thirteen chapters to take effect the first of May next, were perfected under the supervision of the commissioners, Moutgomery H. Throop, Alexander S. Johnson and Sullivan Caverno, and in their report to the legislature, it is stated that all the commissioners have carefully and critically reviewed section by section, each portion of the former draft, with two exceptions, one relating to juries in New York and Kings counties, which was confided to Mr. Throop for obvious reasons; and the other relating to the two last chapters, in which it is stated that Judge Johnson was interrupted by his elevation to a judicial office in the United States Circuit for the Second district, although he examined those last chapters, and united in the recommendation of their adoption. By chapter 467, sec. 2, of the Laws of 1873, the commissioners were authorized to submit to the legislature any distinct parts or portions of their work, which might in their opinion be conveniently enacted into laws before the completion of the entire work. The thirteen chapters were submitted in obedience to this authority, and after undergoing a thorough and critical examination by the judiciary committee of both houses of the legislature, were enacted to take effect May 1, 1877. The provisions thus enacted have been before the profession a long time, and various suggested amendments have been accepted by the commissioners so as to conform them more nearly to the existing provisions of the Code of 1848; and it is not to be doubted that other amendments will become necessary, but they can be supplied hereafter. I think it is obvious that old practitioners having become familiar with the various statutes, many of them running through a period of over forty years, and having libraries to refer to, can get on in the profession without the aid of the revision, and that they feel a reluctance to resort to other sources of knowledge. Many of them will never examine the new revision, until they are compelled to practice under it. They have had time enough, for the thirteen chapters can all be mastered in a very few days. I am satisfied that the proposition to delay until another legislature assembles, arises from the enemies of the revision, and is relied upon as, perhaps, the only safe way now to make their opposition effectual. By reference to the provisions of these thirteen chapters, it will be conceded that the language of the Code of Procedure has been very generally retained, that no new form of pleadings is required, and that the various provisions of the Revised Statutes and different enactments running through the session laws upon the same subject, have been incorporated into the new revision, omitting redundant and obsolete enactments, and making only such alterations as were necessary to reconcile contradictions, supply omissions, and amend imperfections. If the revision is postponed another year, or ten years, we shall meet the same criticisms and objections, as it is impossible to use language which will command the united approbation of the profession, composed as it is of members of different taste, and many of them having peculiar views of their own, which they will desire to introduce into the codification. Looking at the conceded qualifications of the commissioners for their work, and the acquiescence of so many highly distinguished jurists in this revision, I am of opinion that we ought to accept their work, being reasonably assured that it has been thoroughly and well done. I would recommend the adoption of the following resolution: Resolved, That we approve of the act of the legislature authorizing a revision of the statutes of this State; that we have confidence in the qualifications of the commissioners, Messrs. Throop, Johnson and Caverno, to prepare and perfect such revision in conformity to the requirements of the law authorizing the same, and they having reported in favor of the adoption of thirteen chapters, which could be conveniently enacted as a separate part of the revision; and which have been enacted, to take effect on May 1, 1877, after a full and thorough examination by the judiciary committee of both houses of the legislature, and their united approval of the same, we do not deem it wise or expedient to interfere to delay or defeat the action of the legislature, or postpone taking effect on the day already designated, with such amendment as the judiciary committee of the present legislature may deem it proper to adopt. All of which is respectfully submitted. LEROY MORGAN. The meeting was very largely attended, and the debate, which became very animated, was participated in by Messrs. Ruger, Kennedy, Hiscock, Pratt, Morgan, Judge Reigle, W. P. Goodelle, T. K. Fuller, J. G. Vann, O. J. Brown, W. A. Beach, J. C. Fowler, Allis, Anderson, Munro, Stone, Keeler, Wilkin, Northrup and others, and was adjourned until next evening for further discussion. After several proposed amendments were voted upon, Mr. Stone offered the following resolution as a substitute for both reports: Resolved, That the Onondaga County Bar Association recommend to the legislature of the State of New York the enactment of chapters 14 to 22 inclusive, of the "New Revision of the Statutes," as reported by the commissioners to revise the statutes; also the act to amend the Code of Remedial Justice as reported by said commissioners, and that said acts, including the whole twenty-two chapters and the amendments thereto, be so amended to take effect May 1, 1878; that the secretary of this association be directed to forward a copy of the foregoing resolutions to each of the representatives from Onondaga county in the legislature. The vote on the above resolution stood 56 in favor to 26 against, and, on motion, was made unanimous. O. J. BROWN, Secretary. SYRACUSE, February 24, 1877. NOTES OF RECENT DECISIONS. Brokerage: when broker earns commission on sale of real estate. To complete a sale of personal property, either an actual or potential delivery of the article sold is necessary; but in sales of real estate, a contract to convey may be held to be a sale. The rule that "no brokerage is due until the consideration has passed to the vendor," is not supported by authority. When the broker has effected a bargain and sale by a contract which is mutually binding on both vendor and vendee, he is entitled to his commission, whether the sale is finally executed or not. Sup. Ct., Indiana, Jan. 15, 1877. Love v. Miller (Cent. Law Journal). Common carrier: negligence in care of goods: evidence: opinion.-(1) When goods intrusted to a railroad company (as fruit trees) are frozen and injured by unnecessary delay on the part of the carrier in transporting and delivering them, the owner is entitled to recover the value thereof. (2) Testimony of a witness in regard to the trees, that "if they had been shipped that evening as promised by the agent, they would have gone through all right," is not a mere opinion of the witness, but is the statement of a fact. Sup. Ct., Missouri, Oct. Term, 1876. Vail v. Pacific R. R. Co. Constitutional law: eminent domain: manufacturing purposes not public use.- —(1) It is not competent for the legislature to provide generally for the condemnation of the lands of non-consenting parties in order to obtain water-power for manufacturing purposes; the statute not undertaking to define the purposes except in this general way, and not making any provision under which the public will have rights as regards the manner in which the power shall be employed. (2) Property cannot be appropriated to public use under the eminent domain act without a particular specification of the uses; and this specification must be made by the legislature itself; it cannot be left to a jury to declare any thing a public use which, in their view, will be of public benefit. (3) Statute specifying "manufacturing purposes as the public use is not sufficiently specific. Sup. Ct., Michigan, Jan. Term, 1877. Ryerson v. Brown (Cent. Law Journal). Criminal law: larceny: accessory after fact cannot be tried jointly with principal: principal and accessory guilty of different offenses.-The plaintiff in error was indicted jointly with several others for the larceny of a steer, and found guilty as accessory after the fact." Held, that the conviction could not be maintained. The offense of which an accessory "after the fact" may be guilty is not included, nor has it any connection with the principal crime; that this is apparent from the definitions, given both in our statute and the common law. The one cannot be committed until the principal offense is an accomplished fact. A party indicted as a principal and acquitted may yet be indicted as an "accessory after the fact," or if indicted as an "accessory after the fact," and acquitted, he may be indicted as a principal. Sup. Ct., Illinois, Jan. 31, 1877. Reynolds v. People (Chic. Leg. News). Municipal corporation: duty as to providing hitchingposts: negligence: proximate and remote cause.—(1) If there be any duty resting upon a city in regard to the sufficiency of hitching-posts it may provide, it is not bound to see that absolutely safe posts are set, and no more than ordinary care in the selection and setting of them is required. If they are such as would be reasonably sufficient, under all ordinary circumstances, for the purpose intended, the city will not be liable for injury caused by the breaking of one by a team fastened to it, and its running over a person. (2) When a horse with a cutter became frightened and ran away, and in passing where a team was hitched to a post, set by a city [for a hitching-post, frightened the team and caused them to break the post and run, and they, after running some distance, ran over a person in the street and injured him, it was held, in an action by him against the city, that the injury was too remote and was not the proximate consequence of the defect in the post, and that the city was not liable. Sup. Ct., Illinois, Jan. 31, 1877. City of Rockport v. Tripp (Cent. Law Journal). Negligence: injury to looker on from horse shown for sale. The defendant was the proprietor of a yard and premises used for the sale of horses. The plaintiff attended a sale and was walking up the yard behind a row of spectators who were watching a horse then on sale. In order to show the horse's pace a servant of the defendant led it with a halter down a lane formed by the spectators on one side and a blank wall on the other. There was no barrier between the horse and the spectators, and when the horse was about ten yards from the plaintiff another servant of the defendant struck it with a whip in order to make it trot. On being struck the horse swerved into and through the crowd, and kicked and injured the plaintiff. It was a usual thing for a man to be stationed with a whip at the particular point when horses were brought out for sale. There was no evidence as to the kind of blow that was given, nor the character of the horse, nor how it was being led, nor that it was customary to put a barrier for the protection of the public in yards where horses were being sold. Held, that there was no evidence upon which the jury could reasonably find negligence on the part of the defendant. English Ct. Appeal. Abbott v. Freeman (35 L. T. Rep. [N. S.] 783). Negligence: railway company liable for injury to passenger from defective station platform.-A railroad company having a telegraph in one of its stations open to the public, is responsible to one of its passengers who is injured through their negligence alone, while going to it over their structures or platform, by which it is made accessible. N. Y. Sup. Ct., First Dep., Gen. Term, Jan. 12, 1877. Classman v. L. I. R. R. Co. (4 W. Dig. 34). Set-off: what are not mutual debts.-Where the action is by the trustee of a minor, against the makers of a promissory note, payable to a third person or bearer, one of the makers executing the note as principal, the other as surety, an account in favor of a partnership composed of the two defendants, and against the plaintiff, not as trustee, but as an individual, is not proper matter of set-off. The cause of action and the alleged set-off are not mutual debts. Sup. Ct., Georgia, Feb. 5, 1877. Vason v. Beal. Will: construction of: general words followed by enumeration of specific articles.-Testatrix made a holograph will, by which she gave "all that I have power over, namely, plate, linen, * * * lace." She was, at her death, possessed of considerable personal property besides the specified articles. Held, that the words, "namely, plate, linen, * * lace," did not cut down the effect of the general words, "all that I have power over," it being the intention of the testatrix to dispose of all her property; and the whole of her personal estate passed by her will. English High Ct. of Justice, Chanc. Div., Dec. 20, 1876. King v. George (35 L. T. Rep. [N. S.] 786). COURT OF APPEALS ABSTRACT. EVIDENCE. 1. Insufficiency no ground of objection: boundaries: parties. The circumstance that evidence is insufficient to establish the fact sought to be proved by it is no objection to its competency. Stewart v. Patrick. Opinion by Allen, J. 2. Boundary by tree: rebuttal of presumption that line goes to center. A deed described the boundary line of the premises conveyed as beginning "at a tree." There was evidence that a former line fence ran a short distance north of the tree when it was small, and that the tree grew to such a size that the fence was fastened to it, and that some prior deeds of the premises described the line as beginning “at or near the tree." Held, sufficient to overcome the legal effect of the description to fix the point of beginuing at the center of the tree. Ib. 3. When wife a proper party. In an action for an alleged trespass by a husband upon lands claimed by him and his wife under a deed to them jointly, held, that the wife was a proper party to such action. Ib. [Decided Feb. 13, 1877.] FORMER JUDGMENT. What is: adjudication in action by assignee in bankruptcy: action against sheriff.- A firm sold and delivered goods which were sold by the buyer to plaintiff. Upon an attachment against the firm a sheriff seized and sold the goods. Bankruptcy proceedings were commenced against the firm, and the sheriff, by order of the United States District Court, deposited the proceeds from the sale in a bank. The assignee in bankruptcy of the firm commenced an action in the United States District Court against plaintiff and others, claiming title to the goods, and that the sale to plaintiff was fraudulent and void under the bankrupt law. All the defendants appeared and answered, and the decree of the court was in favor of the assignee, and awarded the money deposited by the sheriff to the assignee. In an action by the plaintiff in the State courts against the sheriff to recover for the goods attached, held, that the decree in favor of the assignee was res adjudicata, and estopped plaintiff from maintaining the action. Tucker v. O'Brien. Opinion by Church, C. J. [Decided Feb. 13, 1877.] INSURANCE. 1. Marine policy: abandonment.-If no freight pro rata itineris has been earned, or if the expense of sending in the cargo by another vessel is equal to or exceeds the whole amount of freight agreed upon by the charter-party, there is an absolute total loss of freight, and no abandonment is necessary because there is nothing left to abandon. Robertson v. Atlantic Mut. Ins. Co. Opinion by Folger, J. 2. Following directions of insurers: such directions not advice. The plaintiffs, who were running a vessel to Galveston, hearing by telegraph of its shipwreck, called upon the president of an insurance company, which had insured the freight, and informed him of the news they had received, and were directed by him to attempt to have the cargo conveyed to its destination. By reason of a great storm of which neither party had knowledge, the cost of transportation of the cargo from the place of shipwreck to Galveston would exceed the amount plaintiffs would receive for the entire freight. Held, that the direction to plaintiffs was not advice to be followed at their hazard, but a direction whereby defendant assumed the burden of attempting to deliver the cargo. Ib. [Decided Jan. 16, 1877.] OFFICE. 1. What is necessary for valid appointment: excise commissioners.-Where a person has authority to appoint to an office, in the absence of statutory provision to the contrary, any writing executed by him, with the intention by that act to make the appointment, will be effectual to accomplish that act. Delivery of the writing to the appointee is not necessary. People ex rel. Kressler v. Fitzsimons. Opinion by Earl, J. (Rapallo, J., dissents). 2. Unnecessary act under mistake of law does not invalidate appointment.-The mayor of Albany made this communication in writing to the common council of that city: "I respectfully submit the following nominations for confirmation: For excise commissioners, F. A., P. F. and G: P." The common council confirmed these nominations. The mayor had, by law, the appointment of excise commissioners, and the common council had no authority in the matter, but he supposed the confirmation of the common council was necessary. Held, a valid appointment of the persons named in the communication. Ib. [Decided Feb. 20, 1877.] STATUTORY CONSTRUCTION. 1. Charter of Albany: appointment “biennially.”— By the charter of Albany (Laws of 1870, chap. 77, § 345), it is provided that on the second Tuesday of April, 1870, and on the same day every two years thereafter, the aldermen and mayor shall be elected, and shall enter upon their offices the first Tuesday in May thereafter, and hold office until new officers are elected. It is further provided that the "mayor, with the consent of the common council, shall biennially appoint," among other officers, "one street commissioner," and that such appointed “officers shall continue in office until their successors have been appointed and duly qualified." Held, that the word "biennially " refers to the time when the appointment is to be made, and in connection with the circumstances in which it is used, signifies that the mayor, immediately after his election, shall make the appointment, and this without reference to how long the incumbent has held the office. People ex rel. McCann v. Kilbourn. Opinion per Curiam. 2. Appointment of street commissioner.—Accordingly where K. was appointed to the office on the 24th of April, 1876, by a mayor whose term had nearly expired, and M. was appointed to the office by an incoming mayor on the 23d of October, 1876. Held, that M. and not K. was entitled to the office. Ib. 3. Effect of amendment.-By an amendment to the charter (Laws of 1871, chap. 536), it is provided that the mayor shall fill, by appointment, any vacancy which may occur by death or resignation of any city officer, whether elected or appointed, held, that this would not affect the construction to be given to provision above mentioned. Ib. 4. When amendment not effective.-The intention of the legislature, and the general purpose of an act, cannot be set aside by a single amendment of the law, even although its meaning is not entirely clear. Ib. [Decided Feb. 20, 1877.] SURETY. Promise to one for benefit of another: when surety not liable.-B., who was liable upon a bond and mortgage which had been assigned to S., paid it to another in ignorance of the assignment. M., who was liable to S. for the amount so paid, and conditionally liable to B. if B. should have to pay again, executed a bond to B. to pay him a certain sum. The bond was conditioned to be void if M. should pay to S. a certain other sum, being the amount paid on the mortgage and interest. F. signed this bond as surety. The only intention of the parties to the bond in making it was to secure B., and S. took no part in respect to its execution. Held, that F. was not liable to S. on such bond. Simson v. Brown. Opinion by Folger, J. [Decided Feb. 16, 1877. Reported below, 6 Hun, 251.] TAXATION. 1. Pier erected under a franchise is real estate.-The right to erect a pier upon land under water, belonging to the city of New York, and collect wharfage dues thereon, is a franchise, but the pier itself, when erected, is not a franchise, but is under the statute relating to taxation (1 R. S. 387) land, and liable to assessment as such. Smith v. Mayor of New York. Opinion by Earl, J. 2. Action to remove assessment as cloud on title.-An action to have assessments upon a franchise declared illegal, upon the ground that they are a cloud upon the title, held not maintainable. Ib. 3. The case of Boreel v. Mayor of New York, 2 Sandf. 532, doubted. Ib. [Decided February 23, 1877.] WILL. Construction of: when devise for life draws interest. -Testator by his will devised certain specified land to trustees to be sold at such time as they should see fit, the proceeds to be invested and the income thereof to go to certain grandchildren during life. By a codicil, he provided that in case the proceeds of the land should not equal $30,000, there should be taken from his residuary estate a sufficient sum to complete that sum, which the trustees should apply to the use of the grandchildren. The testator's residuary estate amounted to a large sum, mostly in interest-bearing securities, and the land was not sold until eight years from his death. Held, that the grandchildren were not entitled to any interest upon the amount of the proceeds of the land from the residuary estate, but that they were entitled to interest from such estate from the time of the testator's death upon the amount required therefrom to make up the difference between such proceeds and $30,000. Rodman v. Fincke. Opinion by Rapallo, J. [Decided January 30, 1877.] LAND GRANTS TO RAILROADS-CONDITION AS TO FREE USE OF RAILROAD BY GOVERNMENT. TELE HE cases of Lake Superior and Mississippi R. R. Co. v. United States, and Atchison and Topeka and Santa Fe R. R. Co. v. United States, recently decided by the United States Supreme Court, involve the construction of the clause usual in acts granting government aid to railroads, providing for the free use by government of the railroads so aided. By act of May 5, 1864, granting land for the benefit of the railroad of one of the plaintiffs, it was provided that "the said railroad shall be and remain a public highway for the use of the government of the United States, free from all toll or other charge for [upon] the transportation of any property or troops of the United States." A similar clause was contained in the act giving aid to the railroad of the other plaintiff. The question was this: was either plaintiff, by reason of its railroad being a land grant one and of the provision mentioned, bound to transport the troops and property of the United States free of charge, or had it a right to a reasonable compensation for such services? The court held that the clause in question secured to the government only a free use of the railroad, and that it did not entitle the government to have troops or property transported by plaintiff over such railroad free of charge for transporting the same. Mr. Justice Bradley delivered the opinion of the court; Mr. Justice Miller delivered a dissenting opinion, which was concurred in by Justices Clifford, Swayne and Davis. RECENT BANKRUPTCY DECISIONS. Failure to keep, correct.- About the time of their failure there were several transfers of property made by the bankrupts which did not appear on the books, and these could not be taken advantage of as preferences, because the bankruptcy was some three or four months after the failure. The court said that one of the most important parts of the duty to keep books was to show what is done at or about the time that the affairs became embarrassed, and that it would be dangerous to admit excuses for the want of proper entries at that time. He was not willing to decide that books, which omit entries of considerable importance, could be considered proper books, unless some peculiar circumstances were shown to account for the absence of those entries. As there was an insufficient excuse in this case, the discharge was refused. (U. S. Dist. Ct. of Mass., February 8, 1877.) Re Grieves Brothers. DEFENSE. Adjudication of bankruptcy sufficient.—An affidavit of defense, which sets up an adjudication of bankruptcy, is sufficient to prevent the entry of a judgment and entitle the defendant to a stay of the action. (Ct. Com. Pleas, Penn.) Frostman v. Hicks, 15 Nat. Bankr. Reg. 41. DISCHARGE. From what it releases.- If the bankrupt gave a deed with warranty of title, when he had merely a bond for a title, his discharge will release him from his liability on the warranty. The mere levy of a fi. fa. is not sufficient evidence of a breach of a warranty of title. (Sup. Ct., Ga.) Williams v. Harkins, 15 Nat. Bankr. Reg. 34. EXEMPTION. Under void State law cannot be allowed under bankruptcy law. A judgment creditor, who has not proved his debt in bankruptcy, may enforce the lien thereof against land set apart to the bankrupt as exempt. Congress cannot allow an exemption under a State law when the State law is void. (Sup. Ct., Ga.) Bush v. Lester et al., Administrators, 15 Nat. Bankr. Reg. 36. LIMITATION. When statute does not apply.- The limitation of two years in section 2057 does not apply to a proceeding to review a decree in equity. (U. S. Dist. Ct., N. D., Ohio.) Wilt v. Stickney, Assignee, 15 Nat. Bankr. Reg. 23. PETITION. How number of creditors, etc., computed.-Under the ordinary allegation in a creditor's petition, that petitioners constitute one-fourth in number, etc., and that the aggregate of their debts amounts to at least one-third of the provable debts, etc., if it appears that the claims of several of the petitioners are each less than $250 in amount, the petition is not thereby rendered invalid. In making up the requisite number, petitioners may compute those simply whose debts exceed $250, or they may proceed upon the hypothesis that they represent one quarter of the entire number of creditors, in which case those of less amount than $250 may be reckoned. (U. S. Dist. Ct., E. D., Mich.) In re Hall, 15 Nat. Bankr. Reg. 31. PRACTICE. Register may designate newspapers, etc.-The Register may designate the newspapers in which notice of a sale by the assignee shall be published. (U. S. Dist. Ct., S. D., N. Y.) Burke v. McKee, 15 Nat. Bankr. Reg. 40. PRIORITY. Levy under execution before proceedings.-When at assignment is set aside at the 'suit of the assignee, a creditor who levied on the goods before the commencement of the proceedings in bankruptcy, and after the execution of the assignment, is entitled to priority. A trustee is entitled to an allowance for the disbursements made by him in the execution of his trust. (U. S. Dist. Ct., S. D., N. Y.) Macdonald, assignee, v. Moore et al., 15 Nat. Bankr. Reg. 26. SECURED CLAIM. Indorsement does not make claim secured.-An indorsement does not render a claim secured, within the meaning of the bankrupt law. The claim of a creditor who has issued an attachment within four months prior to the filing of the petition, is to be estimated in computing the proportion who must join in an involuntary petition. In computing the amount that must join in an involuntary petition, claims that are under $250, as well as those which are over $250, must be counted. An indorsee who accepts payment from the indorser while the proceedings are pending, cannot join in the petition, although the claim was proved but not filed before the payment. If a secured creditor joins in an involuntary petition, without referring to his security, he thereby waives it, and his claim should be counted. On all claims bearing interest, interest may be allowed to the time of the filing of the petition. If a creditor holds security, the excess of the debt over the security should be counted in computing the number who must join in an involuntary petition. (Dist. Ct., E. D., Wis.) In re Brioch et al., 15 Nat. Bankr. Reg. 11. VERIFICATION. Of schedules before notary public.-A bankrupt may swear to his schedules before a notary public. (U. S. Dist. Ct., Dist. of Mass.) In re John W. Bailey et al., 15 Nat. Bankr. Reg. 48. FINANCIAL LAW. NOTES TO ORDER OF PERSON NOT LIVING WHEN MADE. THE HE case of Van Etten et al., plaintiffs in error, v. Heman, decided at the January term, 1877, of the Supreme Court of Michigan, was an action upon certain promissory notes, made by plaintiffs in error, payable to the order of "J. H. Luhn," and indorsed "J. H. Luhn, by John D. Day, attorney." At the time these notes were made Luhn was dead. Plaintiffs in error had in his life-time executed notes for his accommodation, and which he had used, and these were about maturing at the time of Luhn's death. Upon his decease, his widow, with knowledge of the plaintiffs in error, continued his business in his name, retaining Day, who had before been his manager and general agent. The notes in suit were executed by plaintiffs in error and sent to Day to be used in retiring the notes previously given by them for Luhn's accommodation. Day sold the notes to defendant in error, who was a bona fide purchaser for value, before their maturity. Day used the proceeds of these notes to take up the previous notes. The court held that under the circumstances the plaintiffs in error were in no situation to make any defense to the notes in suit, in the hands of defendant in error as a bona fide purchaser, based upon the want of consideration going to them, or the irregularity of the transfer and indorsement, as affected by the decease of the person named in the notes as payee; that defendant in error was entitled to suppose the notes were regularly transferable by Day by his indorsement of the name of the concern he was known to represent, that being the same name to whose order the notes, after the death of the person bearing that name, were made payable, and the plaintiffs in error must have contemplated and intended that the notes would thus be used and transferred. The Supreme Court of Tennessee, in the case of State and Watson, trustee, v. President, etc., of Bank of Tennessee, decided January 20, 1877, holds that as to bank notes issued and put in circulation as money, there is in Tennessee no statute of limitations where there has been no demand of payment; and the making of an assignment by the bank does not change the rule. F. & M. Bank v. White, 2 Sneed, 482. The court also hold that the assets of a bank are a trust fund, first for the payment of its creditors, even after dissolution; and as, in proceedings in equity to reach the trust fund, the corporate existence of the bank is not essential, the proceeding is not affected by sections 1493, 1496 of the Code. It says that in this case the petitioners not having been cut off from any participation in the fund, by a rule or order of court requiring all creditors to come in and file their claims by a given time, and the fund being yet undisturbed, the statutes of three and seven years do not protect the assets in the hands of the receiver against the claims of the petitioners. The Supreme Court of Pennsylvania, in the recent case of Hopkins v. West (3 W. Notes Cases, 343), hold that where usurious interest is included in the amount of a judgment confessed by a debtor and afterward paid in full by him, the excess over legal interest cannot be recovered back under the act of 28th May, 1858. But the excess of interest paid upon the amount of such judgment, after its confession, may be recovered back. In this case a judgment was confessed for an amount including usurious interest. Afterward the defendant paid the judgment in full, with usurious interest to the day of payment. The court held, that the excess of interest included in the judgment could not be recovered back, but that paid upon the judgment could be. Sharswood, J., saying that there is no difference in legal effect between a judgment confessed or for want of an appearance or plea, and a judgment on the verdict of a jury. The same court in the case of Rand v. Drouy, decided January 22, 1877 (3 W. Notes Cases, 349), held that a promissory note does not cease to be negotiable because indorsed by a corporation through its seal. The holder of a promissory note may strike off an irregular indorsement through which he has not derived title, placed before that of the payee. The case of Goodnow v. Warren et al., administrators, decided February 19, 1877, by the Supreme Judicial Court of Massachusetts, was an action to recover upon three promissory notes made by W. R. Stockbridge & Co., payable to the order of Samuel Gregg, by whom they were indorsed. Gregg died before the maturity of the notes, and notice of non-payment was given to W. R. Stockbridge, one of the executors named in Gregg's will. Stockbridge never, in fact, took out letters, and resigned before the maturity of the third note, at which time Fisher Ames was appointed special administrator. The question in the case was, whether there was sufficient notice of the non-payment. The Superior Court ruled that the notice was sufficient, and directed a verdict for the plaintiff. Upon appeal the Supreme Judicial Court hold that the administrator, not having been appointed when the two first notes became due, the notice to Stockbridge, |