a similar provision in the judiciary Act of September 24, 1879, c. 20, section 22, 1 statute 84, 85, it is expressly provided that there shall be no reversal in this court or the circuit court for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court. Under this statute, it was held in Piquignot v. The Pennsylvania Railroad Co., 16 How., 104, which came from the same district as this case, that the judgment of the circuit court, on precisely such a plea as that contemplated by this affidavit of defense, was "not subject to our revision on a writ of error." The defense is one which merely defeats the present proceeding, and does not conclude the plaintiff forever, either as to his right to sue in the Circuit Court of the United States, or as to the merits of the matter in dispute.

All the other defenses are covered by the decision of this court in Barnet v. National Bank, 98 U. S., 555. The only difference between that case and this is that there the defendant was the maker of the note who actually paid the usurious interest, and here the defendant is the surety of the maker. It is difficult to see how the surety stands, as to the question now presented, in any better position than his principal. The ground of that decision was, that as without the statute, there could be no recovery from the bank for usurious interest actually paid, and as the statute which created the right to such a recovery also prescribed the remedy, that remedy was exclusive of all others for the enforcement of that right: Farmers' and Mechanics' National Bank v. Dearing, 91 U. S., 29. The surety has not, any more than his principal, the right to recover back the interest without the aid of a statute. Consequently, if his principal could not make this defense, he cannot. The forfeiture and the remedy are creatures of the same statute, and must stand or fall together.

The defense, as stated in the affidavit, is not that interest stipulated for has been included in the note, but that interest actually paid at the time of the discount and the several renewals should be applied to the discharge of the principal. In this particular, the case presents the same facts substantially as Driesbach v. National Bank, 104 U. S., 52. To entitle the defendant to such relief as was given in Farmers' and Mechanics' National Bank v. Dearing, cited above, it should be

made to appear by distinct averment that the note sued on includes interest stipulated for and not paid, as well as principal. That has not been done in this case.

Judgment affirmed.

DIGEST OF CASES.

Attorney and Client-Liability of Corporation for Attorney's Fees.Where the trustees of a corporation have a contest as to the regularity of their election, or as to the propriety of their conduct, and employ an attorney to represent them, they become personally liable to the attorney for his fees, but the latter has no claim therefore against the corporation. Ordinarily the officers of a corporation, in employing an attorney, make the corporation liable only in the cases in which it is a party, or is pecuniarily interested. Nothing short of an official act of the corporation, evidenced by an entry on its minutes or the like, will make it liable for fees in contests or litigations in which it is not a party, or in which it is not pecuniarily interested. Hull v. Enoch Morgan Sons & Co. N. Y. City Court. N. Y. Daily Register, July 18, '84.

Assignment for Creditors— Unliquidated Claim for Damages not “Debt" Provable Against Assignee.-Prospective profits depending entirely for their existence upon the fluctuations of the markets and. the chances of business are not recoverable as damages. Where the claims arising from a breach of contract are of this character, unliquidated and uncertain, they are not debts within the meaning of the provisions of an assignment for the benefit of creditors' as to the payment of just debts." To entitle the creditor to a dividend of the insolvent's estate the liability must be ascertained and fixed at a sum certain. Talcott v. Hazard. N. Y. Com. Pl. Gen. Term. 30 Alb. L. J. 88.

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Common Carrier-Bill of Lading-Exceptions of "Negligence."-Loss "by Thieves or Robbers”—Ordinary Negligence.-A general ship is a common carrier; an exception in her bills of lading against loss "by any act, neglect, or default of the master or the mariners" is invalid. An exception against loss "by thieves or robbers" is valid, unless the theft be invited or made easy through some negligence of the ship. Such an exception serves only to relieve the ship from the liability as guarantor against theft, and from that extreme care which naturally accompanies such a guaranty. She is still bound to use all customary and reasonable vigilance against theft, according to the nature of the articles and the temptations and facilities for stealing them. The Saratoga. N. S. D. C. S. D. N. Y. 20 Fed. Rep. 870.

Criminal Law-Larceny.-The law presumes that when the grand jury find an indictment, they find it upon the sauction of the necessary facts and under the restrictions and within the purview of the

oath they have taken; it is not necessary, therefore, that it should appear of record that the indictment was found upon testimony duly sworn. Where a so-called game of chance was so operated by the defendants as to control the result in their own favor, and to allow the prosecuting witness no possibility of winning-the victim parting with his money through fraud and fear-such an offense is larceny. U. S. v. Murphy. Sup. Ct. Dist. of Col., 7 Wash. Law Rep. 490.

Devise-Legacy Charged on Land-Election.-A devisee, by accepting a devise charged with the payment of a legacy, becomes personally liable therefor; and although the will gives the devisee the option of discharging the legacy by conveying to the legatee land equal in value to the amount of the legacy, he will be persumed to have elected to pay the same in money, notwithstanding the estate has not been fully distributed, if, for a long number of years, he receives the rents and profits of the devise, without directly manifesting his election, and it appears that such devise is amply sufficient to discharge such legacy. Dunne et al. v. Dunne, Sup. Ct. Cal., 3 West. Coast Rep. 426.

Extradition-Forgery--Embezzlement--False Accounts--Lex Loci Contractus.--Checks or drafts drawn by an agent, and signed with the name of the principal, and by the agent," per procuration," are not forgeries, whether the agent has or has not authority to draw them, since in either case they are nothing different from what they purport to be. False entries made in the usual books of account, or memoranda on slips directing such entries by others, made by an officer or employe of a bank for the purpose of concealing his embezzlements, do not constitute forgery, as defined and recognized by the courts of England; and where a person is held for extradition to England for forgery on such proofs only of acts committed in England, he should be discharged on habeas corpus. Falsification of written evidence against another is forgery at common law; and where, by the law of the place, a clerk's or paying teller's daily entries in the course of his duty, supplemented by his own oath, in the absence of his recollection on the subject, are admissible in evidence in his own discharge, in respect to moneys received by him, semble, that the falsification of such entries for the fraudulent purpose of concealing embezzlements should be deemed forgery. In re Extradition of Tully. U. S. C. C., S. D. N. Y., 20 Fed. Rep. 812.

Fraud-False Slatements as to Standing.-in an action based on actual deceit, and not counting on any precise words, if the plaintiffs were substantially misled by fraud, to their injury, they have a right to complain, even though they did not suppose every statement made to them is literally true. Heineman v. Steiger. Sup. Ct. Mich., June 18, '84. 19 N. W. Rep. 965.

Insurance --Mortgagee--Independent Contract-Policy.--Action—A policy of insurance on property mortgaged to a savings bank was, by a memorandum on the policy, made payable to the savings bank to the amount of its mortgage. A collateral agreement was also made by the insurance company with the savings bank, that all policies which had

been or might be issued by the insurance company and assigned or made payable to the savings bank should not, as to the interest of the latter, be invalidated by any act or neglect of the mortgagor or owner; that the savings bank should pay for any increase of hazard; and that on payment being made to the savings bank the insurance company should be entitled to all the securities held by the savings bank. Both the policy and agreement were under seal. The premium, constituting the consideration of the policy, was paid by the insured. Hd, That the savings bank, not being a party to the policy, could not su upon it alone, even though the promise was made for its benefit. That the two instruments together constituted a contract between the insurance company and the savings bank, by which the latter became privy to the promise of the insurance company contained in the policy to pay the loss to it; and that a suit at law could be maintained by the savings bank in its own name on that promise. Meriden's Savings Bank v. Home Mut. F. I, Co. Con't Sup. Ct. 18 Reports 205.

Jurisdiction of the Supreme Court of the United States-Amount in Controversy.—In a suit upon a policy which values the goods insured at a sum less than $5,000, and limits the liability of the insurers to the amount of the valuation, the "matter in dispute" cannot exceed the stated value of the goods, no matter what may be their actual value; nor can the parties give jurisdiction to the Supreme Court of the United States by stipulating that judgment, if rendered for any sum shall be for the real value of the goods, amounting to more than $5,000. Webster et al. v. Buffalo Insurance Company. Supreme Court of the United States, Feb., 1884.

Negligence-Contagious Disease.-Defendant took his children when they had the whooping-cough to the plaintiff's boarding house. Plaintiff's child took the disease, and boarders were kept away from plaintiff's house by the presence of the disease. Held, that the defendant was liable to plaintiff for the damages caused. Smith v. Baker. United States Circuit Court, S. D. New York. 18 Reports 200.

Receipt-May be Explained—Receipt for St: eet Assessment given wrong Number of Lot.-A receipt given for money paid may be explained by parol proof of the real circumstances of the case. When a property

owner pays the city's assignee for his share of a municipal improvement, his lot is discharged from liability; and, if he can show that this was the intention of the parties to the transaction, he will not be prejudiced by the fact that the receipt describes the land of one of his neighbors. Wolf & Shoening v. The City of Philadelphia. Sup. Ct. Pa., Phila., Leg. Intel., Aug. 8, 1884.

Title-Purchaser in Good Faith-Notice.-To entitle a defendant to protection in equity as a purchaser of land for value without notice, he must aver and prove the possession of his grantor, purchase of the premises, and payment of the purchase money in good faith without notice, actual or constructive, prior to and down to the time of payment. Eversdon v. Mayhew. Sup. Ct. Cal. 18 Rep. 41.

During the absence of the editor the matter in last week's JOURNAL was furnished by his substitute.

The verbose technicalities of legal phraseology are well hit off in the following:

If a man would, according to law, give to another an orange, instead of saying, "I give you that orange," which one would think would be what is called in legal phraseology, "an absolute conveyance of all right and title therein," the phrase would run thus:

"I give you all and singular my estate and interest, right, title, and claim, and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck, and otherwise eat the same, or give the same away, as fully and effectually as I, said A. B. am now entitled to bite, cut, suck, or otherwise eat the same orange, or give the same away with or without its rind, juice, pulp and pips, anything heretofore, or hereafter, or in any other deed or deeds, instrument or instruments, of what nature or kind so ever, to the contrary in any wise notwithstanding."

The following specimen of an examination for admission to the bar is told as illustrative of how things were done under the old system:

Examiner. Do you smoke, sir? Candidate. I do, sir. E. Have you a spare cigar? C. Yes, sir-(extending a Havana). E. Now, sir, what is the first duty of the lawyer? C. To collect fees. E. Right! What is the second? C. To increase