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all Texas, Mexican, or Indian cattle during eight of persons into a State, but the principles asserted are months of each year, without any distinction between equally applicable to all subjects of commerce. such as may be diseased and such as are not. It is true We are thus brought to the question whether the a proviso to the first section enacts that “ when such Missouri statute is a lawful exercise of the police power cattle shall come across the line of the State, loaded of the State. We admit that the deposit in Congress upon a railroad car or steamboat, and shall pass of the power to regulate foreign commerce and comthrough the State without being unloaded, such shall

merce among the States was not a surrender of that not be construed as prohibited by the act; but the which may properly be denominated police power. railroad company or owners of a steamboat performing What that power is, it is difficult to define with sharp such transportation shall be responsible for all dam- precision. It is generally said to extend to making ages which may result from the disease called the

regulations promotive of domestic order, morals, Spanish or Texas fever, should the same occur along health, and safety. As was said in Thorp v. The Rutthe line of transportation; and the existence of such land and Burlington Ruilroad Company, 27 Vt. 149, disease along the line of such route shall be prima facie - it extends to the protection of the lives, limbs, evidence that such disease has been communicated by health, comfort, and quiet of all persons, and the prosuch transportation.” This proviso imposes burdens tection of all property within the State. According to and liabilities for transportation through the State, the maxim, Sic ulere tuo ut alienum non ladus, which though the cattle be not unloaded, while the body of being of universal application, it must, of course, be the section absolutely probibits the introduction of within the range of legislative action to define the any such cattle into the State, with the single excep- mode and manner in which every one may use his own tion mentioned.

as not to injure others." It was further said that by It seems hardly necessary to argue at length, that, the general police power of a State “persons and propunless the statute can be justified as a legitimate exer- erty are subjected to all kinds of restraints and burcise of the police power of the State, it is an usurpation | deus, in order to secure the general comfort, health, of the power rested exclusively in ('ongress. It is a and prosperity of the State; of the perfect right of the plain regulation of interstate commerce, a regulation legislature to do which no question ever was, or upon extending to prohibition. Whatever may be the acknowledged general principles, ever can be made, so power of a State over commerce that is completely far as natural persons are concerned.” It may also be internal, it can no more prohibit or regulate that admitted that the police power of a State justifies the which is interstate than it can that which is with

adoption of precautionary measures against social evils. foreign nations. Power over one is given by the Con- Under it a State may legislate to prevent the spread of stitution of the United States to Congress in the same crime, or pauperism, or disturbances of the peace. It wirds in which it is given over the other, and in may exclude from its limits convicts, paupers, idiots, both cases it is necessarily exclusive. That the trans- lunatics, and persons likely to become a public charge, portation of property from one State to another is a

as well as persons afflicted by contagious or infectious branch of interstate commerce is undeniable, and no diseases; a right founded, as intimated in the Passenattempt has been made in this case to deny it.

ger Cases (7 How. 283), by Grier, J., in the sacred law The Missouri statute is a plain interference with of self-defense. l'ide 3 Sawyer, 283. The same prinsuch transportation, an attempted exercise over it of ciple, it may also be conceded, would justify the exthe highest possible power-that of destruction. It clusion of property dangerous to the property of citimeets at the borders of the State a large and common zens of the State; for example, animals having contasubject of commerce, and prohibits its crossing the gious or infectious diseases. All these exertions of State line during two-thirds of each year, with a pro- powers are in immediate connection with the protection viso, however, that such cattle may come across the of persons and property against noxious acts of other line loaded upon a railroad car or steamboat, and pass persons, or such an use of property as is injurious to through the State without being unloaded. But even

the property of others. They are self-defensive. the right of steamboat owners and railroad companies But whatever may be the nature and reach of the to transport such property through the State is loaded

police power of a State, it cannot be exercised over a by the law with onerous liabilities because of their

subject confided exclusively to Congress by the Fedagency in the transportation. The object aud effect of eral Constitution. It cannot invade the domain of the statute are, therefore, to obstruct interstate com

the National government. It was said in Henderson merce, and to discriminate between the property of et al. v. The Mayor of New York et al., 92 S. C. citizens of one State and that of citizens of other States. 272, to “be clear, from the nature of our complex This court has heretofore said that interstate traus- form of government, that whenever tho statute of portation of passengers is beyond the reach of a State a State invades the domain of legislation which belegislature. And if, as we have held, State taxation of longs exclusively to the Congress of the United States, persons passing from one State to another, or a State it is void, no matter under what class of powers it tax upon interstate transportation of passengers, is may fall, or how closely allied it may be to powers prohibited by the Constitution because a burden upon conceded to belong to the States." Substantially it, a fortiori, if possible, is a State tax upon the car- the same thing was said by Chief Justice Marshall in riage of merchandise from State to State. Transpor- Gibbons v. Ogden, 9 Wheat. 210. Neither the unlimtation is essential to commerce, or rather it is coin- ited powers of a State to tax, nor any of its large pomerce itself, and every obstacle to it, or burden laid lice powers, can be exercised to such an extent as to upon it by legislative authority, is regulation. State work a practical assumption of the powers properly Freight Tuc Cases, 15 Wall. 281; Wellon v. The State of conferred upon Congress by the Coustitution. Many Missouri, 91 S. ('. 275; Ward v. Maryland, 12 Wall. 418; acts of a State may, indeed, affect commerce without llen lerson V. Mayor of New York, 9:2 S. C. 259; amounting to a regulation of it, in the constitutional and Chy Lung v. Freeman, id. 275. The two latter of seuse of the term. And it is sometimes difficult to these cases refer to obstructions against the admission define the distinction between that which merely affects or influences, and that which regulates or fur- 254. Regarding the statutes as mere police regulanishes a rule for conduct. There is no such difficulty tions, intended to protect domestic catole against in. in the present case. While we unhesitatingly admit fectious disease, those courts have refused to inquire that a State may pass sanitary laws, and laws for the whether the prohibition did not extend beyond the protection of life, liberty, health or property within danger to be apprehended, and whether, therefore, its borders; while it may prevent persons and animals the statutes were not something more than exertions suffering under contagious or infectious diseases, or of police power. That inquiry, they have said, was for convicts, etc., from entering the State; while for the the legislature and not for the courts. With this we purpose of self-protection it may establish quarantine cannot concur. The police power of a State cannot and reasonable inspection laws, it may not interfere obstruct foreign commerce or interstate commerce bewith transportation into or through the State, beyond yond the necessity for its exercise; and under color of what is absolutely necessary for its self-protection. It it, objects not within its scope cannot be secured at may not, under the cover of exerting its police powers, the expense of the protection afforded by the Federal substantially prohibit or burden either foreign or in- Constitution. And as its range sometimes comes very terstate commerce. Upon this subject the cases in near to the field committed by the Constitution to 91st U. S. Sup. Court Reps., to which we have re- Congress, it is the duty of the courts to guard vigiferred, are very instructive. Iu Henderson v. The lantly against any needless intrusion. Mayor, etc., the statute of New York was defended The judgment of the Supreme Court must, therefore, as a police regulation to protect the State against the be reversed, and the record remanded with instrucinflux of foreign paupers, but it was held to be uncon- tions to reverse the judgment of the Circuit Court of stitutional, because its practical result was to impose Grundy county and to direct that court to award a a burden upon all passeugers from foreign countries. new trial. And it was laid down that " in whatever language a statute may be framed, its purpose must be determined

COMPOSITIONS IN BANKRUPTCY. by its natural and reasonable effect." The reach of the statute was far beyond its professed object, and

UNITED STATES DISTRICT COURT, NORTHERN DISfar into the realm which is within the exclusive juris

TRICT NEW YORK. diction of Congress. So in the case of Chy Lung v. Freeman, where the pretense was the exclusion of

IN THE MATTER OF ALLEN. lewd women, but as the statute was more far-reach

When upon looking at the assets of a bankrupt's estate it ing, and affected other immigrants, not of any class is evident that the interests of the creditors will be which the State could lawfully exclude, we held it

better promoted by a proposed composition than by

administering the estate in bankruptcy, the court has no unconstitutional. Neither of these cases denied the alternative but to confirm the resolution of compo. right of a State to protect herself against paupers,

sition, notwithstanding previous acts of the bankrupt

in disregard of the interests of his creditors. convicted criminals, or lewd women, by necessary and proper laws, in the absence of legislation by Congress

, APPLICATION for confirmation in bankruptcy. Tho but it was ruinored that the right could only arise

facts sufficiently appear in the opinion. from vital necessity, and that it could not be carried Fanning and Williams, for opposing Creditors. beyond the scope of that necessity. These cases, it is

John Van l'oorhis und E. S. Jenney, for Bankrupts. true, speak only of laws affecting the entrance of per- WALLACE, J. The requisite quorum of creditors sous into a State; but the constitutional doctrines having assented to the resolution for composition, they maintain are equally applicable to interstate confirmation is opposed by dissenting creditors on the transportation of property. They deny validity to ground that the interests of creditors will not be proany State legislation professing to be an exercise of moted by the composition. police power for protection against evils from abroad, The evidence presented discloses the common case of which is beyond the necessity for its exercise wherever a composition conceived in the interest of the bankit interferes with the rights and powers of the Federal rupts. When insolvency was apprehended the bankgovernment.

rupts began paying themselves and their favored credTried by this rule, the statute of Missouri is a plain itors out of the firm assets, theu attempted to comintrusion upon the exclusive domain of Congress. It promise with their creditors; failing in this, made an is not a quarantine law. It is not an inspection law, assignment to a favored creditor, and shortly after It says to all natural persons and to all transportation procured a petition in baukruptcy to be filed against companies, “you shall not bring into the State any themselves, and thereupon took proceedings to effect a Texas cattle or any Mexican cattle or Indian cattle be- composition. In the meantime the bankrupts have tween March 1st and December 1st, in any year, no had cbarge of their property, ostensibly as agents for matter whether they are free from disease or not; no the assignee and the purchaser from the assignee. The matter whether they may do an injury to the inhabit- attorneys who advised the assigument and prosecuted ants of the State or not; and if you do bring them in, the petition in bankruptcy now represent most of the even for the purpose of carrying them through the creditors. State without unloading them, you shall be subject to From the beginning to the end of the trapsactions extraordinary liabilities.” Such a statute, we do not pot one step has been taken to protect the interests of dwubt, it is beyond the power of a State to enact. To creditors. hold otherwise would be to ignore one of the leading It shocks the moral sense to assist this dishonest objects which the Constitution of the United States scheme by judicial action; but this court is only an was designed to secure.

instrument to administer the law as it finds it. The In coming to such a conclusion, we have not over- bankrupt law permits just such schemes as this, and if looked the decisions of very respectable courts in Illi- the requisite number of creditors consent the court is nois, where statutes similar to the one we have before powerless, unless it shall appear that the interests of us have been sustained. Yeazel v. Alexander, 53 m. the creditors will uot be promoted by the terms of

composition. If, looking at the assets of the estate crime of the person administering it, the law making in their present condition, it is apparent that the it no crime in her to take the potion. State v. Hyer. pecuniary interests of the creditors will be better pro.. 2. Conviction on unsupported evidence of accomplice. moted by the composition than by administering the -Although the practice of courts is to advise juries hot estate in bankruptcy, there is no alternative but to to convict a defendant on the unicorroborated testiconfirm the resolution of composition.

mony of an accomplice, yet a conviction founded on I am constrained, to agree with the Register that such evidence is strictly legal. Ib. the interests of the creditors here will be promoted by

EMINENT DOMAIN. confirming the resolution. I cannot say that there are any circumstances to show that the assenting creditors

1. Compensation for land taken must be in money.hare been actuated by any motive other than to pro

The act of 1875 (Pamph. Laws, p. 621), for the conmote their own interests as well as those of all the

demnation of lands for the construction of a sewer, creditors.

provided the following method of compensation to the All the assets of the estate rest in litigation, and, it

owner of condemned lands: The commissioners apseems to me, a prudent consideration of the contingen

pointed to make the award were empowered to issue cies dictates the acceptance of the offer of the bank

improvement certificates, in their own names, in payrupts. It is probable the bankrupts will profit by the

ment of the award, payable at such times as they composition, but this by no means proves that it will

might therein designate, not exceeding two years. not be advantageous to the creditors.

Held, that the act did not provide a constitutional method of securing compensation to the land-owner.

There is no power in the legislature to provide for the RECENT AMERICAN DECISIONS.

payment of the award in any thing but money, nor to postpone the right of the land-owner to receive the

same after the award becomes a finality. State, But. SUPREME COURT AND COURT OF ERRORS AND APPEALS, NEW JERSEY.*

ler, prosecutor, v. Ravine Roail Sever Commissioners.

2. Election to pursue or abandon proceedings.- Where ACTION.

the power of eminent domain is conferred upon a 1. For seduction of daughter. – An action for the

merely public agent, and the compensation to be made seduction of the daughter, in the life-time of the father,

is“to be ascertained by another body, as commissioners may be maintained by his personal representative.

or a jury, the agent has an election, whether to pursue Noice, administratrix, v. Brown.

or abandon the condemnation, after the price is fixed, 2. For enticing away servant. — An action will lie for

unless a contrary legislative intent is clearly indicated. enticing away a servant at will, where a subsisting ser

Slate, Mabon, relator, v. Halsted.

3. Reconsideration of election not permilled.- If such vice is interrupted by the act of the defendant. Ib.

an election has been once made, no right of recousidAGENCY,

eration remains. Ib. 1. Votice to agent, notice to principul.— Notice to the 4. Statutory construction. A legislative power to agent is notice to the principal, if the agent comes to take by condemnation, at a price to be fixed by anthe knowledge of the fact while he is acting for the other body, does not include a power to contract for principal, in the course of the very transactiou which purchase. Ib.

EVIDENCE. becomes the subject of the suit. Such knowledge of the agent is imputed to the principal for the benefit of Quantum of proof to support defense of willful burnan innocent third party who has dealt with the agent ing in action on fire insurance policy.-In an action on in good faith. Slanley v. Chamberlin.

a policy of insurance against loss by fire, where the 2. When nolice of immoral acts of agent not imputed

defense is that the property insured was willfully to principal: renting house for gambling.– The law will

burned by the assured, the rule in civil, and not in not impute turpitude to a principal by charging him

criminal cases, as to the quantum of proof, applies, and with constructive notice, when he had no actual a charge to the jury that the defendant is bound to kuowledge, for the benefit of one who sets up his own

establish the defense beyond a reasonable doubt, and wrongful act in his defense. An agent rented prem

by the same measure of testimony that would be necises to the defendant, knowing that he intended to use

essary to convict the plaintiff if he was on trial upon an them for gaming purposes; held, that the principal,

irrdictment charging that offense, is erroneons. Kane who had no actual knowledge of such intended unlaw

v. Hibernia Ins. Co. (Court of Errors and Appeal.) ful use, could disown the agent's contract, and recover,

LEASE. on a quantum valebal, for the use of her premises. Ib.

Effect of assignment of.-A plea setting up that a lessee ALTERATION.

assigned his lease, and that the lessor accepted such

assignee as his tenant, does not show a bar to an Presumption as to: guarantee.- Under ordinary cir

action of covenant for rent on the lease, agaiust the cumstances, alterations appearing on the face of a

original tenant. Hlunt v. Gardner. sealed instrument need not be explained in order to render such instrument admissible in evidence. The words of a guarantee will be read most strongly against Statute requiring township to pay debt morally but not the guarantor. Hoey, plaintiff in error, v. Jarman. legally due.— A statute is valid that requires a town

ship to pay a debt that is morally, but not legally due CRIMINAL LAW.

from it to an individual, for work done upon the pub1. Accomplice in abortion. A woman who volunta

lic streets. Rader v. Township of Union. rily takes a potion administered to her for the purpose of causing an abortion is not an accomplice in the

Sureties on official bond: how far liable.- Sureties on Appearing in 39 N. J. Law Rep. (10 V room)

the bond of the State treasurer are liable for moneys

STATUTE.

SURETYSHIP.

received by him during the continuance of their powers of attorney to transfer the same, to an agent suretyship, and used by him in payment of arrears for safe-keeping, by whose fraudulent transfers the due from him to the State at the time the bond was loss was incurred, the plaintiff cannot recover from given. S. was treasurer of the State from January, the corporation. Sup. ('t., Pennsylvania, Jan. 11, 1878. 1873, to September, 1875. In April, 1875, he gave a new Pennsylvania R. R. Co.'s appeal (W. Not. Cas.). bond, with new sureties. He was then a defaulter to Counter-claim : against United States. - The act of the State. After April, 1875, he received a large sum March 3d, 1797, does not contemplate the adjudication of public moneys, part of which he applied to dis- of any sum against the United States. A defendant charge his prior defalcation, and part he failed to who is sued by the United States is not entitled to a account for. Held, in an action on the new bond, that finding in any form of a sum due bim by the United his sureties were liable for both amounts. Stute v. States in excess of the claim for which he was sued. Sooy.

U. S. ('irc. ('t., E. 1. Pennsylvania, Jan. 8, 1878. TAXATION.

Schaumburg v. United States. 1. Must extend over whole of district bene filed. - Nuisance : claim that it is necessary to enable performWhile the burtheu of a particular tax may be placed ance of duty imposed by law.— In an action to restrain exclusively upon any political district to whose benefit

a gas company from creating a nuisance at their gas such tax is to inure, the legislature has no power thus manufactory, held, that the Gasworks Clauses ct, to impose it upon any territory narrower in bounds 1847, is incorporated with the Metropolis Gas Act, 1860, than the political district of which it is a part, with- except so far as its provisions are incousistent with out having regard to the special benefits which may that act; and a company perforining the obligations of accrue to those upon whom it is made to fall. State, the act of 1860 camnot justify creating a muisauce by Baldwin, prosecutor, v. Fuller.

setting up incapacity to make or supply gas without 2. Recovery back of tax voluntarily paid.-- Where an so doing. Eng. High. Ct. of Justice, Chanc. Div., owner of lands assessed for a city improvement bas Nov. 16, 1877. Altorney-Gen. v. Gas L. & Colce Co. (37 paid the amount assessed, and the assessment is after- L. T. Rep. (N. S.] 746). ward set aside on certiorari, he may, after such rever- Receiver: aclion against foreign, not maintainable. sal, and demand made, recover back the amount paid, The defendant was appointed by a decree of the Cir in an action of assumpsit, though the assessmeut was cuit Court of Alexandria, Virginia, receiver of a railvoluntarily paid. City of Elizabeth v. Hill.

road in that State. The plaintiff was injured while a

passenger on such road and brings this action against USURY.

the receiver for damages; and it was held that the What does not constitute.- Where, on a loan of

action would not be maintained in this jurisdiction money, the borrower agreed to repay at a certain time

without leare of the court which appointed defendant the amount of the money loaned, with lawful interest,

such receiver. Sup. ('t., Dist. Columbia, General and further agreed, upon default made in such pay

Term, Jan., 1878. Burton v. Barbour, receirer (Wash. ment, to perfect and surrender to the lender certain

L. Rep.). shares of stock pledged as collateral security for the

Respondeat superior: when rule applies: blasting.loan, held, not to be usurious. Ramsey v. Morrison.

The city employed one to construct a sewer; in doing

which it was necessary to blast rocks, by which a NOTES OF RECENT DECISIONS.

building was damaged in consequence of insufficient Action: interference with lery by railroad agent.

protection to the blasting. It was claimed that the That the agent of a railroad company obstructed an

contractor, and not the city, was responsible. Held, officer in levying an attachment upon goods loaded

that the rule of respondeat superior applies, in all upon one of the trains of the company, and that he

cases, where the contract directly requires the perremoved the goods out of the State, by running out

formance of work intrinsically dangerous, however the train, will not furnish a cause of action against the

skillfully performed. In such case, the party authorcompany, at the instance of the plaintiff in attach

izing the work is regarded as the author of the mis. ment. Sup. Ct., Georgia, Jan. 31, 1878. Western R. R.

chief resulting from it, whether he lets the work out Co. v. Thomas.

by contract, or does it himself. Sup. Ct., Illinois. Bill of exchange : custom as lo, not invalid.- A custom

Jan. 21, 1878. Cily of Joliet v. Harwood. to allow a fixed sum by way of liquidated damages in

Stock exchange : notice of right of member to seat.lieu of re-exchange upon bills returned dishonored is

The right of a member of the Philadelphia Stock Exnot invalid in law. English Priv. Council, Dec. 10,

change to seat in that body is not such property as 1877. Willuns v. Ayer's (37 L. T. Rep. [N. S.] 732).

càu be attached at the suit of a creditor of the memCorporate stock : transfer of rights and liabilities of

ber. Philadelphia Ct. Com. Pleas, Dec. 29, 1877. Panparties and corporations: when stock wrongfully trans

coust r. Houston. ferred.- Where a plaintiff by his own negligence fur

Surelyship: construction of contract : agreement to nishes a third person with the means of perpetrating supply goods : pust debts.- A merchant was in the a wrongful act, whereby the plaintiff incurs a loss, he

habit of supplying C., a retail trader, with goods on cannot recover, even though the exercise of due dili- credit. An acceptance given by C. having been disgence and proper care on the part of the defendant

honored, M. (the merchant) refused to supply more might have prevented the occurrence of the loss. A goods. C.’s wife, who was entitled to separate estate, corporation is not justified in transferring stock on

thereupon gave the following guaranty: “In conits books upon a blank power of attorney, signed by

sideration of you, the said M., having, at my request, the owner many years previously (in this case thirteen), agreed to supply and furnish goods to the said C., I do without making due inquiry as to whether the power

hereby guarantee to you, the said M., the sum of £500. bas been revoked. But where, in such case, the owner

This guaranty is to continue in force for the period of of stock had intrusted the certificates, with blauk

six years and no longer:" Held (reversing the de.

cision of Fry, J.) that the guaranty extended only to the price of goods supplied subsequently to its date by M. on the faith of the guaranty, and not to moneys due for goods supplied before the date of the guaranty. Eng. Ct. of Appeals, Dec. 3, 1877. Morrell v. Couran 37 L. T. Rep. N. S. 586).

RECENT BANKRUPTCY DECISIONS.

COMPOSITION. 1. Enjoining creditors from harassing bankrupt pending proceedings for.-The Bankrupt Court has a right to, and will on application enjoin creditors from harassing the debtor as long as his composition proceeding is pending. An injunction in such case can extend only to unsecured debts or debts in respect to which any security has been surrendered. The proceeding is pending until the time allowed by the reso. lution for making the last payment has expired. U. S. Dist. Ct., S. D. New York. In re Hinsdale, 16 Nat. Bankr. Reg. 550.

2. Terms of : contempt of creditor: payment: tender.A general provision in a resolution of composition that a payment of so much money, at such time or tines, to be evidenced by such and such notes, shall be accepted by the creditors in satisfaction of the debts due them, is not, as respects the creditors, an executiug provision which the court is authorized to enforce. A tender of the money according to the terms of such composition is equivalent to payment, but the court cannot imprison the creditor for contempt unless he will physically take the offered money. Ib.

CONTRACT. With third party to forbear proceedings against debtor not forbidden by bankrupt law: validity of .-The Bauk. rupt Act does not forbid a creditor to take any contract, covenant or security from a third party as an inducement to forbear instituting proceedings against his debtor. But to constitute the forbearance a valid consideration for such contract, covenant or security, the creditor must, at the time of receiving it, have a right to proceed in bankruptcy against his debtor. Ct. of Appeals, Maryland. Ecker v. Bohn, 16 Nat. Bankr. Reg. 544.

JURISDICTION. Of Bankrupt Court to relieve from judgment: laches.The Bankrupt Court has no jurisdiction to relieve against a judgment obtained against a bankrupt in a suit brought against him after his adjudication, in which for any cause he has failed to plead his discharge. Even if the court had such jurisdiction, it would not interfere to relieve the bankrupt against the laches of his counsel and himself. U. S. Circ. Ct., E. D. Virginia. In re Ferguson, 16 Nat. Bankr. Reg. 530.

PREFERENCE. One taking cannot prove debt: what constitutes.-A creditor who has received a preference contrary to the provisions of section 5084 of the Revised Statutes cannot prove his debt after the preference has been recovered from him by the assignee. Where M., in pursuance of a scheme to obtain a preference for H., a creditor of the bankrupt, purchased logs of the bankrupt and subsequently took a transfer of a note held by H., held, that he held such note as trustee for 11., and that the acceptance of the logs was a preference. U. S. Dist. Ct., S. D. New York. In re Stein, 16 Nat. Baukr. Reg. 569.

SURETYSHIP. Mortgage to secure surety afterward becoming insolvent: rights of credilors of principal as to.-If a mortgage, pledge or lien is given by a principal debtor to secure his surety, and both become insolvent, the holders of the debts for which the surety is bound have an equity to require the property to be applied to the discharge of their debts specifically. But if the surety has been discharged by the negligence of the creditors, or if the state of the accounts between the parties is such that the surety has lost his lien, the creditors have no equity. The creditors must apply their security so as to prove against either estate for the deficiency only. If the creditors prove in full, they waive their security. U.S. Dist. Ct., Massachusetts. E.c parte Morris, In re Foye, 16 Nat. Bankr. Reg. 572.

COURT OF APPEALS ABSTRACT.

APPEAL.

EXEMPTION.

1. Homestead: when claim must be made : title to properly sold by assignee : power of State court.-A claim to a homestead exemption, under the laws of Alabama, must be asserted before a sale. The validity of a sale of property by an assignee in bankruptcy cannot be questioned in a collateral proceeding in the State courts. If a bankrupt fails to claim such exemption in his schedules, he must be deemed to have waived it. If the bankrupt has, from inadvertence, misdescribed in his schedules the land claimed by him as exempt tbe Bankrupt Court alone has power to correct such error. A State court cannot receive mere parol evidence to cure such mistake. Sup. Ct., Alabama. Steele v. Moody, 16 Nat. Bankr. Reg. 558.

2. When the sale by the assignee took place more than two years after the assignment to him, the limitation of suits by and against assignees prescribed by the Bankrupt Act cannot be set up as a defense to a collateral action brought against the bankrupt by one claiming title under such sale. The bankrupt should avail himself of it on application to vacate the sale. Ib.

1. When amount in controversy is less than $500 no appeal to this court, even if judgment is for more.- A judgment appealed from was for $343.84 damages. An item of $140.50, about which there was no controversy at the General Term, although it was put at issue in the pleadings and was in controversy at the Circuit up to the time the case was submitted to the jury, entered into the judgment. Held, that the case was not appealable to the Court of Appeals. Appeal dismissed. Brown v. Sigourney, appellant. Opinion by Folger, J.

2. Amount of judgment docketed does not govern, but amount in controversy.- Under the act of 1874 (chap. 322), the judgment is not appealable, and the Court of Appeals has no jurisdiction to review it if the amount in coutroversy is less than $500, whatever may be the amount at which the judgment is docketed. Ib. [Decided January 15, 1878.]

COLLISION. 1. Facts constituting negligence in management of boat. - In an action for the loss of a canal boat, caused by defendant's tugs being forced against it by floating ice, it appeared that the boats were moored to a dock near by each other; that a movement of the ice was to be expected and was feared; that one of the tugs waj

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