rowed. Defendant qualified as executrix, December 29, 1880, and then for the first time was there a legal representative of Rau's estate. Plaintiff kept the transactions alive from time to time, and finally notified the executrix to furnish additional margin, and in default of so doing they would buy in the stock on her account, which she neglecting to do, plaintiffs bought in stock at a loss of $9,437.98. Held, that plaintiffs were entitled to recover. While it is clear that after the death of Rau the plaintiff could enter into no fresh transactions in the purchase or sale of stocks on his account or that of his estate, yet in execution of unexecuted orders, or a general authority to deal in stocks for his account given before his death. The agency was coupled with an interest, and was not revoked by the death of the principal. Hunt v. Rousman, 8 Wheat. 164. Hess v. Rau. Opinion by Andrews, J. (See 29 Eng. R. 100; see ante, 192.) [Decided March 21, 1884.]

EVIDENCE-OPINIONS AS TO MENTAL CONDITION OF GRANTOR.-Plaintiff's testator brought suit to set aside an assignment of a bond and mortgage to defendant, basing their right to relief upon showing that at the time the transfer was made the assignor was imbecile or unsound of mind, and mentally incompetent and incapacitated to make the same. The jury so found. On the trial testator's children and other witnesses were allowed to give their impressions as to his mental condition from acts and declarations made by him in their presence, but not to them. Held, that the exception to the general rule that witnesses must be examined as to facts, and not as to any opinion or conclusion which may be drawn from them, is found in the cases where the conclusions to be drawn are inferences of skill and judgment. Yet it is not claimed that the witnesses here were especially versed in the matter, to which their attention was directed, nor were they presented to the jury as experts. The evidence was incompetent. Dewitt v. Barley, 17 N. Y. 340; 9 id. 371; Clapp v. Fullerton, 34 id. 190; O'Brien v. People, 36 id. 276; Real v. People, 42 id. 270; Hewlett v. Wood, 55 id. 634; Rider v. Miller, 86 id. 507. Injustice may have resulted from the evidence adverted to, and in such a case, whether the action is for equitable or legal relief, the appeal of the aggrieved party should prevail. Holcomb v. Holcomb. Opinion by Danforth, J. (S. C., 11 W. Dig. 226, reversed.)

[Decided March 21, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

APPEAL AMOUNT IN CONTROVERSY.-The judgment in this case was for $5,237.15, but the record shows in many ways that of this amount $727.42 was admitted to be due. Held, that the case was not appealable to this court. Wabash, St. Louis & Pacific Ry. Co. v. King. Opinion by Waite, C. J.

ON

PATENT-INFRINGEMENT DAMAGES-INTEREST PROFITS NOT RECOVERABLE.-As a general rule a patentee is not entitled to interest on profits made by an infringer. The reason is that profits are regarded in the light of unliquidated damages (Parks v. Booth, 102 U. S. 106), but in many of the cases it is said that circumstances may arise in which it would be proper to add interest. Mowry v. Whitney, 14 Wall. 653; Littlefield v. Perry, 21 id. 230. Illinois Cent. R. Co. v. Torrill. Opinion by Waite, C. J.

ATTACHMENT-DELIVERY BOND-PROPERTY IN CUSTODIA LEGIS-JUDGMENT DIRECTING SALE-BILL IN EQUITY AS TO WHO ENTITLED TO FUND.-Property claimed by appellant was attached in a suit against

other parties in the United States court. Appellant as required by the laws of Indiana, where the attachment was made, gave to the marshal a delivery bond for the appraised value of the property, and the property was returned to him. According to the law of Indiana, the giving of the delivery bond did not divest the lien of the attachment upon the goods, which remained, in contemplation of law, in possession of the officer. Appellant disposed of goods there after judgment was rendered in the action in which the goods were attached, directing the sale thereof. The appellant, as required by the conditious of this bond, not being able to return the specific property attached, paid to the marshal the full amount of its appraised value. He thereupon, the money being in the marshal's hands, undistributed, filed a bill in equity against the various parties in the suits, asking that the fund from the attached property be declared to belong to him. Held, that he was entitled to equitable relief. Authorities cited: Louthain v. Fitzer, 78 Ind. 449; Risher v. Gilpin, 29 id. 53; Watson v. Sutherland, 5 Wall. 74; Freeman v. Howe, 21 How. 450; Bank v. Turnbull, 16 Wall. 190; Martin v. Willis, 1 Fowl. 160; Buck v. Colbath, 3 Wall. 334; Haggan v. Lucas, 10 Pet. 400; Clarke v. Mathewson, 12 id. 164; Minnesota Co. v. St. Paul Co., 2 Wall. 609; Van Orden v. Morton, 99 U. S. 278. Krippendorf v. Hyde. Opinion by Matthews, J.

APPEAL-SEVERAL DEBTS COMBINED EXCEEDING 85,000 —JUDGMENT RECOVERED WHEN NOT AFFECTED — EXECUTION RELATES BACK-LEASEHOLD INTEREST-TRADE FIXTURES-LEVY NOT DEFEATED BECAUSE POSSESSION NOT RETAINED.-From a decree of the Circuit Court awarding a fund of $6,000 to one claiming, under a distinct title, the grantee in a deed of trust to secure debts to various other persons, exceeding that amount in all, but of less than $5,000 each, may appeal to this court. A judgment duly recovered is not affected, nor the right to take out execution upon it impaired, by an application made to the court to set it aside, and "continued until the next term, without prejudice to either party." All the proceedings under a levy of execution have relation back to the time of the seizure of the property. Boyle v. Zachrie, 6 Pet. 648, 659; United States v. Dashiel, 3 Wall. 688; Batdorff v. Focht, 44 Penn. St. 195; Bond v. Willett, 31 N. Y. 102; Capen v. Doty, 13 Allen, 262. A levy of execution, for a debt of the lessee, upon the leasehold estate, and upon a cotton press, with its engine, boilers and machinery, erected by him, under which the officer has seized the property, and given due notice of the sale thereof, is not defeated by an order from the clerk, under seal of the court, pursuant to a direction of the judge in vacation, without notice to the judgment creditor, requesting the officer to return the execution unexecuted; nor by the officers, upon receiving such order, ceasing to keep actual possession of the property and returning the execution, with his doings indorsed thereon, to the court, for further directions. By the common law a leasehold interest in land is personal property. Trade fixtures put up by the lessee, although real estate as between the lessor and himself, while annexed to the land, yet may, during the term of the lease, be severed by the lessee, or by one deriving title from him, and thus reconverted to their original condition of chattels. At any time before the expiration of the term therefore both the leasehold and the fixtures may be taken on execution against the lessee, like other personal property. Dalzell v. Lynch, 4 W. & S. 255; Kutter v. Smith, 2 Wall. 491; Van Ness v. Pacard, 2 Pet. 137; Minshall v. Lloyd, 2 M. & W. 450; Guthrie v. Jones, 108 Mass. 191. The leasehold interest, though personal property, is an interest in land The lessee's interest in the fixtures arises out of the agreement contained in the lease, and of the manuer

and purpose of the annexation to the land, from which they could not be separated and removed without much labor and expense. It was not necessary that the officer should retain actual possession in order to keep alive a levy upon such property. Ashman v. Williams, 8 Pick. 402. The executions have never been legally recalled or set aside. Freeman v. Dawson. Opinion by Gray, J.

JUDICIAL SALE-TITLE ACQUIRED BY PURCHASEREFFECT OF REVERSAL OF JUDGMENT.-Plaintiff purchased for the sum of $7,400 certain real property in New Orleans at a sale upon a decree rendered by the District Court of the United States in proceedings for its confiscation under the act of July 17, 1862, and subsequently obtained a deed of the property from the marshal. In the writ issued to the marshal and in his deed of sale, the lots are described as the property of Courad. Under the act of Congress no other interest than that of Conrad was forfeited, and no other interest was sold. "The plaintiff had notice of the character and legal effect of the decree of condemnation when he purchased, and is therefore presumed to have known that if the alleged offender possessed no estate in the premises at the time of their seizure, nothing passed to the United States by the decree or to him by his purchase." Burbank v. Conrad, 96 U.S. 291. This would be true with reference to any layman who might have been the purchaser, but with special force may it be applied to the plaintiff, who, as the district attorney, directed the seizure and conducted the proceedings to the decree. The title to the property sold under judicial process is not warranted by the party obtaining the judgment of the court. Whatever title the law gives the purchaser takes-no more and no less; and he must govern himself accordingly. Any differ. ent rule prevailing on this subject in Louisiana or any other State by statute cannot change the position of the United States with respect to judicial sales in proceedings instituted by them. Nor is this position at all affected by the doctrine that upon the reversal of a judgment, under which a sale has been had, the purchaser is entitled to a return of his money. There has been no reversal of the judgment in the confiscation proceedings against Conrad. Waples v. United States. Opinion by Field, J.

[Decided March 3, 1884.]

BAIL BOND-SURETY PAYING RECOGNIZANCE-SUBROGATION — PARTIES PLAINTIFF.- (1) The doctrine that a surety paying the debt for which he is bound is not only entitled to all the rights and remedies of the creditor against the principal for the whole amount, but against the other sureties for their proportional part, does not include recognizances in criminal cases. The rule in favor of sureties to the prerogative rights seems to be confined to cases of crown debtors, such as collectors, receivers, accountants, and other fiscal officers, and persons bound for customs, duties, excise, taxes and other civil duties. We have not been able to find any English case in which it has been applied, or allowed, in favor of bail in a criminal proceeding. The object of bail in civil cases is, either directly or indirectly, to secure the payment of a debt or other civil duty; whilst the object of bail in criminal cases is to secure the appearance of the principal before the court for the purposes of public justice. Payment by the bail in a civil case discharges the obligation of the principal to his creditor, and is only required to the extent of that obligation, whatever may be the penalty of the bond or recognizance; whilst payment by the bail of their recognizance in criminal cases, though it discharges the bail, does not discharge the obligation of the principal to appear in court; that obligation still remains, and the principal may at any

time be retaken and brought into court. To enable the bail however to escape the payment of their recognizance by performing that which the recognizance bound them to do, the government will lend them its aid in every proper way, by process and without process, to seize the person of the principal and compel his appearance. This is the kind of subrogation which exists in criminal cases, namely, subrogation to the means of enforcing the performance of the thing which the recognizance of bail is intended to secure the performance of, and not subrogation to the peculiar remedies which the government may have for collecting the penalty; for this would be to aid the bail to get rid of their obligation, and to relieve them from the motives to exert themselves in securing the appearance of the principal. Subrogation to the latter remedies would clearly be against public policy by subverting, as far as it might prove effectual, the very object and purpose of the recognizance. It would be as though the government should say to the bail, we will aid you to get the amount of your recognizance from the principal, so that you may be relieved from your obligation to surrender him to justice." If payment of the recognizance operated as a satisfaction or composition of the crime, then the subrogation contended for might be free from this objection; for then the government would be satisfied in regard to the principal matter intended to be secured. Jones v. Orchard, 16 C. B. 614; Chipps v. Hartnall, 4 B. & S. 414; Green v. Cresswell, 10 A. & E. 453. (2) But if the sureties were entitled under the act to the same priority which the United States have, they are not entitled to use the name of the United States in prosecuting their claim. The statute expressly declares that they must sue in their own names. The reason is obvious. The government has many advantages in proceeding which are not possessed by individuals, and is not liable to costs; and individuals prosecuting claims against other individuals ought not to have the advantage of the name and prestige of the United States. 4 Wash. Cir. Rep. 446. United States v. Ryder. Opinion by Bradley, J.

[Decided March 10, 1884.]

TAXATION-UNITED STATES REVISED STATUTES, SECTION 3412-WHAT NOT "NOTE" WITHIN MEANING OF.The act of February 8, 1875, ch. 36, § 19, 18 Stat. 311, which amends Rev. Stat., § 3412, is in these words: "That every person, firm, association, other than National banking associations, and every corporation, State bank, or State banking association, shall pay a tax of ten per cent on the amount of their own notes used for circulation and paid out by them." This act was passed as an amendment to the internal revenue laws, and is therefore to be construed in connection with those laws. It is also part of the system adopted by Congress to provide a currency for the country, and to restrain the circulation of any notes not issued under its own authority. Veazie Bank v. Fenno, 8 Wall. 533. Defendant used for circulation and paid out their own obligations agreeing to "pay David O. Calder, or bearer, five dollars in merchandise at retail." Held, that such instrument was not a "note" within the meaning of said act. Only such notes as are in law negotiable, so as to carry title in their circulation from hand to hand, are the subjects of taxation under the statute. It was, no doubt, the purpose of Congress, in imposing this tax, to provide against competition with the established National currency for circulation as money, but as it was not likely that obligations payable in any thing else than money would pass beyond a limited neighborhood, no attention was given to such issues as affecting the volume of the currency, or its circulating value. This was the principle on which the case of United States v. Van Auken, 96

The bills of lading did not designate any particular vessel. The goods were burned on the wharf by a fire not occurring through any neglect of the defendant. Held, that where goods in the custody of a carrier are destroyed by storms, floods or fire, in a place in which they would not have been but for the negligent delay of the carrier, the direct or proximate cause of the injury is the flood or the fire, and that the delay in transportation is only the remote cause. The Supreme Court of the United States so decided in Railroad Co. v. Reeves, 10 Wall. 190, and it was so held in the Supreme Court of Massachusetts in Hoadley v. Northern Transp. Co., 115 Mass. 304. This latter case was a suit to recover for the loss of goods by fire, which the carrier had delayed forwarding, and which were burned at the place where they were delivered into his custody. The bill of lading in that case exempted the carrier from liability for loss from fire while the goods were in transit, or while in depots or warehouses or places of transhipment. It was held that the destruction of the goods by fire could not reasonably have been anticipated as a consequence of the detention; that the delay did not destroy the goods; and that there was no connection between the fire and the detention. The language of the bill of lading is: "And it is expressly contracted and agreed that loss or damage by weather, fire, leakage, breakage and dangers of the seas are excepted;" and it seems to me it would be a very strained and forced construction of these contracts now before me to hold that the exemptions in them from "fire, leakage and breakage" do not apply to losses from those risks while on the wharf, because they are mentioned in the same sentences with other risks, which are only encountered on the voyage itself. See 3 Wall. 107; Rev. Stat., § 4282. Scott v. Baltimore. Cir. Ct., Md. Opinion by Morris, J. [Decided January 15, 1884.]

JUDICIAL SALE-SECURITY VOID FOR USURY-ESTOPPEL-NEW SECURITY SUBSTITUTED-AGENT TAKING BONUS-WHAT NOT RATIFICATION-PRESUMPTION.—

(1) The effect of the statute is not avoided by the substitution of a new security for one infected with usury. Austin v. Burgess, 36 Wis. 192; Lee v. Peckham, 14 id. 383; Williams v. Fitzhugh, 37 N. Y. 446, and cases cited; Tyler, Usury, 395. (2) The general rule is that where the debtor suffers the property pledged or mortgaged to be regularly sold to an innocent purchaser, he will not be permitted to question the validity of the sale on the ground that the original security is infected with usury. This doctrine may be supported upon the principle of equitable estoppel, as well as upon grounds of public policy. Cuthbert v. Haley, 8 Term R. 390; Jackson v. Henry, 10 Johns. 195; 1 Jones, Mort., § 646; Mumford v. Ins. Co., 4 N. Y 485, But as to the creditor or an assignee not bona fide, a 1oreclosure sale made under a power contained in a void mortgage, or one that has been fully paid, works no estoppel against the mortgagor, and in such case the purchaser is in no better position than if no sale were made. Jackson v. Dominick, 14 Johns. 442. "A foreclosure of a mortgage under the statute is not founded upon any judgment or decree of any court.

It is the mere act of the mortgagee, who cannot make that good and effectual by a sale which was unlawful and void in its inception." Id. 443. Hyland v. Stafford, 10 Barb. 558; Bissell v. Kellogg, 60 id. 628; Warner v. Blakeman, 4 Abb. Ct. App. Dec. 530; Lee v. Peckham, 17 Wis. 391. In Taylor v. Burgess, 26 Minn. 548; S. C., 6 N. W. Rep. 350, under the statute then in force, the mortgage security was not invalid, and the foreclosure was not therefore void. And in Merchant v. Woods, 27 Minn. 396; S. C., 7 N. W. Rep., 826, a mortgage which had been paid up was suffered to remain undischarged of record by the mortgagor or his assigns, and an innocent purchaser bid in the premises upon foreclosure. (3) A bonus taken by agents for their own benefit, and without any collusion with the lender, who neither authorizes nor ratifies the act or derives any benefit from it, is not presumptively a cover for usury on his part, and does not make the loan usurious. And receiving the mortgage and attempting to enforce it for the amount actually loaned, with lawful interest, does not amount to a ratification. And this appears now to be the prevailing doctrine. Acheson v. Chase, 28 Minn. 214; S. C., 9 N. W. Rep. 734, and cases cited; 1 Jones, Mortg., § 642; Van Wyck v. Walters, 16 Hun, 209; S. C., 81 N. Y. 352; Ins. Co. v. Kashaw, 66 id. 544; Gray v. Van Blarsom, 29 N. J. Eq. 454; Gokey v. Knapp, 44 Iowa, 32; Eslava v. Crampton, 61 Ala. 507; Phillipe v. Roberts, 90 Ill. 492; Rogers v. Buckingham, 33 Conn. 81. Where the authority of the agent is special and limited, and nothing further can be inferred in this case, the relation of the parties cannot be presumed to authorize illegal exactions of a bonus by an agent, and such act is not therefore to be deemed within the scope of his agency. Whart. Neg., § 161; Acheson v. Chase, supra; Sniffen v. Koechling, 45 N. Y. Sup. Ct. 64. Jordan v. Humphrey. Opinion by Vanderburgh, J. [Decided Feb. 12, 1884.]

VERDICT-JUDGE ENTERING JURY-ROOM--WHEN NOT CAUSE FOR SETTING ASIDE.-After the jury had retired, the justice who tried the cause temporarily entered the jury-room without the consent of the parties. Held, that such conduct on the part of the court or its officers is not to be encouraged or approved. Oswald v. Railroad Co., 29 Minn. 6; S. C., 11 N. W. Rep. 112, modified the stringent rule as laid down in Hoberg v. State, 3 Minn. 269 (Gil. 181). In this case the intrusion was but temporary, and apparently casual, and there is no reason to believe that any prejudice was caused to the defendant's rights. The prevailing party ought not therefore to be punished by setting aside a verdict for the inadvertent act or irregular conduct of an officer or other person with whom he is in nowise connected unless there is good cause for believing that the opposite party is injured. People v. Draper, 28 Han, 6; People v. Hartung, 4 Parker, 256; 3 Wait's Law & Pr. 738. Helmbrech v. Helmbrech. Opinion by Vanderburgh, J.

[Decided Feb. 13, 1884.]

CORRESPONDENCE.

GOWNS.

Editor of the Albany Law Journal:

When we reflect that the example of the wearing of gowns by our judges may be followed in all the other States, the matter is seen to be one of sufficient importance to demand the fullest consideration. As yet it cannot, we think, be said that the practice is approved of in this State, even by its bar, much less by the people. It is true the Bar Association of the city of New York (and subsequently, we believe, the State

Association also) passed resolutions requesting the Court of Appeals to adopt the fashion, and very likely this was quite sufficient justification to the judges in doing so; but only as we think on the assumption that the persons voting truly represented their brethren and the people. The wish of the people on the sub ject would likely be better indicated by the tone of the press (of which we have not sufficient knowledge to speak), than by so small a representation of the lawyers of the State-perhaps not one-tenth-as voted for those resolutions, and in any event we believe that upon fuller consideration an indorsement of the practice would be withdrawn. Some of the reasons for this belief are as follows:

First. Gowns are emblems of either secular or spiritual authority, and in either case are out of place, in a purely secular system of government by the people governed, which is essentially a government of reason arising out of discussion, and from which the intolerance, bigotry, and tyranny of ancient beliefs, customs, sects, and parties is removed. Undoubtedly gowns were originally, and not improperly in matters relating to existence in a future world, emblems of religion or spiritual authority. They are suited to the office of a priest, and were worn by them as well when sitting as judges in the ecclesiastical courts as at other times, and they may be useful as either spiritual or secular emblems, or both under a monarchial or Divine right theory of government, in which church and State are united. Where such is the case, and especially where the people are ignorant, superstitious, turbulent, or cowed, the emblem might in the courts of the king, the supposed fountain of justice, well serve a double and useful purpose in aid at once of secular and religious authority, where the maintenance of some such authority is of more consequence than the particular nature of it. In this age and country the conditions are entirely different. There is here no occasion for emblems in secular matters, at least, where the people are intelligent and free, and can duly respect the laws which they themselves adopt and make, and the judicial and other agents whom they themselves appoint to interpret and enforce those laws equally upon themselves, and all for the good of all, and generally can judge of and respect men for their qualities and works rather than by reason of any accidental circumstance or material surrounding; and where, as here, religion is separated from the State, and neither the right of government or rule of government comes from outside and above by usurpation or supposed appointment to or through one or the few, to be impressed, willing or unwilling, upon the many, but instead is found in and arises out of the united action and most numerous agreement of the duly matured and normally acting consciences and intellects of the many; and where as here judges not being the agents of a kingly or spiritual potentate as such, or otherwise than as found in the minds of men in general, they are in no measure properly separated from the people for whom and by whose authority they act except while in the actual exercise of their office, and, only to an extent necessarily incident to such exercise, or as the people by express grant and for a limited time have entrusted them with. The use of a gown therefore or other distinguishing insignia, could with us only be proper for the purpose of separating to the sight judicial agents from their fellow citizens in general or particular, as they are now already while in the exercise, and otherwise to some extent by the nature of their office, but the gown is the distinguishing insignia of the priest and spiritual authority. Such separation tends to the undue magnifying of judicial office, both in the minds of those so separated and of those from whom they are so separated. Under a,

system of self government, through discussion undue exaltation of the judicial office, and the consequent incidental but imperceptible and undefined extension of its power and authority, is a real and ever present danger, and the purchase of "dignity" at too great a cost. There is no branch of government in which it is so essential that discussion should be full, free, and unawed, and decision impartial, unbiased and just, as here. When government fails in this branch, through the imperiousness, conceit, artificial or natural exaltation and extension of their office, or ignorance for want of sufficient discussion, or patience to listen to it, of the judges, the government has failed in some degree to be aid, and become instead an obstacle to the freedom, progress and happiness of the people Judges are but men," says Jefferson, "they are as honest as other men and not more so. They are liable to be misled by favoritism, relationship, devotion to legislative or executive power, esprit de corps." And in another place he points out that they are ever inclined to unduly enlarge their jurisdiction and extend their power. Works, vol. 1, p. 81. Any exaltation of the judges above the people beyond that incidental to the power and mysteries of their office is to be deprecated. Agents of the people with us to have due respect, but no sacredness. Beyond the elevation incident to their high and honorable office they must be content, like other people with less opportunities, with such consideration or otherwise as may come from qualities and works. If similarly to Chief Justice Marshall they shall in disposition of private controversies be able to discover true principles, and make a true application of them in so able, clear, and convincing a manner as to settle the particular litigation to the satisfaction of the parties, and prevent much litigation in the future, and conserve and advance public and private morality, liberty and progress, they will have their reward. And if on the other hand active or unconscious, personal, or party bias and interest, forgetfulness of their relation and obligation to the whole people, and the possible effect upon their liberty and highest welfare of the disposition of a pri. vate controversy, devotion or surrender to each other, pride of power and opinion, the frailty of human nature, etc., shall cause them to deal erroneously, unjustly or unlawfully, and to settle controversies, which can never be settled, on any basis not plainly seen to be lawful, just, and right, and so be the cause of public and private immorality, unrest, and suffering, to the prejudice of order and liberty, they will also have their reward, and gowns cannot serve the judges or the people to hasten or prevent such results in the least degree.

As to the wearing of gowns by the judges of the United States Supreme Court, that practice, with our General Terms, and a few similar anomalies, is what is remaining in our courts of a judicial system established under and suited to an entirely antagonistic system of government, but which our forefathers did not think it necessary or wise to do away with or change wholly and at once. Under the principles of our system, it is however only a question of time, as we believe, when gowns, like the system of courts within a court, and the regarding of appeal as matter of favor rather than right, appointment of judges, etc., will have disappeared wholly, and then we may have the satisfaction of seeing the judges of the highest court in the world sitting not in priests' gowns, or in a uniform of any kind, but in the dark, well made, well fitting, dress of the prosperous, studious, and influential American citizen, and doing a work of which the world will be proud. The movement for gowns in this State, originated in the city of New York, and is one of the numerous circumstances that tend to con