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Election of Members; Election of General Council;
Reports of the Secretary and Treasurer, Report of the
Executive Committee.

Wednesday evening.-A paper by Andrew Allison, of Nashville, Tenn., on "The Rise and Probable Decline of Private Corporations in America." A paper by Alexander Porter Morse, of Washington, D. C., on "The Citizen in Relation to the State." Discussion upon the subjects of the papers read.

Thursday morning.-The Annual address, by John F. Dillon, of New York; Reports of Standing Committees; Reports of Special Committees.

Thursday evening.-A paper by M. Dwight Collier, of St. Louis, on "Stock Dividends and their Restraint." A paper by Simon Sterne, of New York, on "" The Prevention of Defective and Slipshod Legislation." Discussion upon the subjects of the papers read.

Friday morning.-Nomination of Officers; Miscellaneous Business; Election of Officers.

The Annual Dinner will be given at the Grand Union Hotel at 8:30 o'clock on Friday evening.



LIGHTING from the street car at one of the busiest corners of this city, we are confronted by a statue of white marble, representing a man sejant, whom it requires but little intimacy with the national monumentology to recognize as the ubiquitous Pater Patriæ. He is apparently keeping watch over the main entrance of a dingy-looking red brick building, solid but unpretentious. But the marble janitor makes no sign, and no man pries into our business or bars the door to curiosity. We climb the worm-eaten staircase unchallenged, and wander idly on till checked by a plain white-painted door, above whose lintels are the words "Common Pleas No. 3." It swings open at a push, and entering we find ourselves in a square room of fair size, lighted from two sides by several windows, all of which are double-sashed to exclude the jingling of the horse-car bells and the multifarious noises of the outer world. Facing the door is a long raised desk-table, occupying about half the side of the room and shaped in an arc of a circle, the concavity being toward the body of the room. Books and papers are piled or scattered on this table, behind which, at the apex of the arc, sits an elderly man of strikingly handsome and intelligent appearance-the judge of the court. He is in ordinary morning dress, and is busily engaged in revising the notes he has made during the progress of the case in hand-an occupation which does not apparently interfere with keen attention to what is passing around him.

Round the other three sides of the room, at a distance of about eight feet from the walls, runs a wooden railing some four feet in height, forming a barrier between those concerned in the present business of the court and the mere spectators like ourselves, who are accommodated with seats on a double row of benches ranged round the wall outside the charmed square. Within the inclosure, to the right-hand side of the bench, two rows of chairs, twelve in number, are arranged at right angles to the chord of the arc; and on these chairs, in various attitudes indicative of attention, indifference and repose, are seated the "twelve good men and true," upon whose verdict the issue of the trial depends. They are all apparently of the tradesmen class, and here and there among their number one sees the dark skin which proclaims its wearer to be not many degrees removed from African parentage. A closer inspection of the jury reveals the curious fact that the jaws even of the most somnolent are moving slowly and ruminatively, as if engaged upon some toothsome cud; near them are some spittoons. In

front of the jurymen is a plain deal table with a few
books and rolls of paper littered on it. The rest of the
inclosure is studded with a score or so of comfortless-
looking bent-wood chairs, and occupied in groups by
the parties to the suit and their witnesses and legal
advisers. Another deal table in front of the bench ac-
commodates the clerk of the court; and a few bat-
tered metal spittoons and a register stove make up the
remaining equipments of the hall of justice.

The plaintiff in the present case appears to be a puny,
sickly-looking boy of about twelve years of age, one of
whose hands is enveloped in bandages, and who ap-
pears, through his "next friend," to claim damages for
injury caused by the negligence of his employer, the
defendant-a hard, shrewd-faced, middle-aged man,
who is lolling at his ease on a chair close in front of
the jury, with his legs resting across the seat of an-
other chair at a convenient distance.

Seated negligently on a corner of the table facing the jury and carelessly dangling his feet in mid-air, is a young man, plainly dressed, whose eloquent appeal to the jury proves him to be acting as counsel for the defendant. Despite the nonchalance of his attitude and bearing it is at once evident that he is fully alive to the interests of his client and the difficulties of his case; and his speech for the defense is logical and plausible. The sympathies of his audience are sure to be enlisted on behalf of the injured child, and he therefore appeals strongly to their business instincts as employers of labor on behalf of a brother tradesman. In some small matter of detail, a date or name, the judge has occasion to interrupt and suggest a question. The young advocate merely recognizes the interruption with a quick glance round toward the bench, and the words "Is that so?" and then adopts the emendation and continues his address with no further sign, respect or regard for authority. Presently he brings his speech to a close with an impassioned appeal to the honesty and impartiality of his hearers; and then slipping from his perch he saunters carelessly across the court, exchanges a few laughing remarks with his client, bites a corner off a plug of tobacco which he produces from his pocket, expectorates meditatively, and finally drops into a chair to hear what reply his opponent is prepared to give.

Meanwhile an elderly man, tall, gaunt and awkward-
looking, has stepped nervously up to the vacated place
and stands facing the jury, leaning heavily forward
with his hands planted on the table. He begins speak-
ing in a low toue, and with monotonous delivery
merely restating the facts of his client's case; but pres-
ently a change comes, and warming to his work, he
waxes eloquent and indulges in a savage personal at-
tack upon the character and motives of the de-
fendant. Involuntarily we turn to look at
the man who is being described to the assem-
bled crowd as "this greedy employer of cheap labor,"
"this man without heart or conscience, who pays chil-
dren twenty-five cents a week to do work which would
be full of peril for grown men," this, etc., etc.; but
are surprised to find, that instead of writhing under
the sarcasms leveled at him, he still reclines in his for-
mer ungraceful attitude, and accepts the compliments
with an indifferent smile. The appeal for helpless
childhood follows as a matter of course; but passion-
ate as is the language and cleverly as the points are
made they elicit no sign from the inanimate twelve.
Then after a few minutes' silence the judge proceeds
to sum up the case, his cool, impartial statement and
shrewd analysis contrasting strangely with the ad-
dresses that preceded it. In ten minutes be places the
jury in possession of the legal aspect of the case, and
then he dismisses them to consider their verdict.
Each in turn rises, stretches himself, addresses him-
self to a spittoon, and saunters after the foreman; and
as they leave the court we too rise and retire, to pon-
der upon the majesty of law stripped of its externals
and its traditious of respect.-St. James' Gazette.

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The Albany Law Journal.

ALBANY, AUGUST 23, 1884.

magnifying glass to be seen. The truth is that our country was very young, very sensitive, very conceited, and very "fresh," and when the great author made his second visit a generation later we were wiser, and with his remarks upon his last visit no one had any fault to find.




HIS is the season of law-school commencement
addresses, and among the best is that of Chief
Justice Elliott, of Indiana, delivered at the com-
mencement of the law department of the Northern
Indiana Normal School, an extremely vigorous and
learned production. We must be allowed to file two
exceptions to it. First, to the orator's seeming ap-
proval of Lord Justice Stephen's eccentric proposal
to wipe out the criminal classes "to gratify the in-
dignation which such crimes produce," etc., a mat-
ter on which we commented some time ago.
do we comprehend the equity of the idea that
"hardened criminals" ought to be made away with
because they "become the progenitors of criminals."
Second, the orator says: "The broad culture and
manly liberality of the distinguished Lord Chief
Justice, lately the guest of the American bar, rises
into a magnitude that shames into meanness the
narrowness of Dickens, Russell and others of their
profession, who have been the slanderers of America.
These mere literary men looked at the good in
American character with the single eye-glass in
which Englishmen of a certain kind delight, and
even that one glass was so covered with the grime
and dust of prejudice and egotism that they saw
through it darkly, and sometimes saw not at all;
but upon our national faults they brought to bear a
glass of power great enough to make green with
envy the most accomplished microscopist who ever
puzzled his brain to determine whether a stain was
made by the blood of a man or that of a dog."
Now we do not much care for Russell, although it
must be confessed that our troops did run away
from Bull Run. Thereby they lived to fight another
day. But we never could understand the indigna- (which is nonsense), is correctly given thus:

"The man convinced against his will
Is of the same opinion still,"—

"He who complies against his will
Is of his own opinion still."

tion of our people against Dickens on account of his
"American Notes" and "Martin Chuzzlewit."
Making due allowance for the exaggeration of a
professed humorist, there never was a book written
on America so full of deserved criticism and generous
praise as the "American Notes." Dickens ridiculed
and denounced only what was ridiculous and
abominable, as for example, our national habit of
chewing tobacco and spitting, and our national sin
of slavery. (We have gotten rid of the latter, but
the former is as common and as nasty as ever.) On
the other hand, Dickens gave the most appreciative
and generous praise of what was noticeably good in
our system, as for example, our State prisons, our
deaf and dumb asylums, and our common schools.
It may not have been gracious in him to tell the
unpleasant truth about us, but his criticisms on this
country were milk and water compared with his
writings upon his own. Therefore we think him
not fairly chargeable with "prejudice and egotism,"
and we believe that our national faults needed no
VOL. 30- No. 8.

In speaking of witchcraft, Judge Elliott cites an authority for the estimate that "nine millions of human beings went to death upon this charge.' This seems to us an enormous exaggeration. As for the judge's conjecture in his next sentences we shall leave him to the tender mercies of the lawyers' wives who read these columns in vacation: "So widespread was the delusion, and so fierce the persecution, that the old and decrepit women were daily and hourly in danger of their lives. Possibly it is from fear of being prosecuted as witches rather than from vanity that the ladies have so long been reluctant to tell their true ages."

These are also the days when the judges at the watering-places, and Messrs. Blaine, Cleveland, Butler and St. John are importuned for their autographs. To these gentlemen and to others whose sign-manuals are demanded, we would cordially recommend a little pamphlet which has just been sent to us, entitled, "Seven Hundred Album Verses, suitable for writing in autograph albums," etc. The selections are generally very non-committal and senseless. We have glanced over its pages to find something appropriate for the presidential candidates, and this is the best we can point to: "Be content with the lot God has marked out for you." Here is one fit for lawyers: "Always have a willing hand full of kind deeds." Here is one fit for poor widows: What you do, do with your might.” There is only one remarkable thing in the collection, and that is that the familiar couplet,


In Governor Hoadley's late address before the Yale Law School, on Codification, he told the following story of common-law pleading, which is too good to be withheld from our readers: "One advantage indeed this arbitrary, technical and most unscientific system had - its precedents of pleading were in print and could be copied. Of this a pleader in North-western Ohio once took conspicuous benefit. With the volumes of Chitty on Pleading before him, he prepared and filed this plea: 'Now comes the defendant aforesaid and defends the wrong and injury when, etc., and says that the plaintiff aforesaid his action aforesaid ought not to have and maintain because he says (down to the asterisk on page 533), and this he is ready to verify, wherefore he prays judgment.' Tradition has it that this was his last plea, at least in Ohio. He fled the court-house, went west, and grew up with

the country in some employment not open to copyists." Now seriously, it seems to us that this plea gave the plaintiff as much information of the real defense as it would have done if it had been formal.

Mr. Howard Payson Wilds, writes us: "A letter dated July 30, 1884, just received from James G. Alexander, Honorary Grand Secretary of the Associa-sealed tion for the Reform of Codification of the Law of Nations, states as follows: 'You will doubtless have received the telegram which was dispatched to you by Sir Travers Twiss, to announce the postponement of our conference at Hamburg. This step has been taken in view of the obstruction to travelling caused by the quarantine regulations in force on the frontiers of most of the European States. We feared that the attendance from both England and America would be so greatly diminished by this circumstance that it was thought desirable to communicate with the Senate of Hamburg, and we received a reply that under the circumstances they thought it better for the conference to be postponed. A resolution to that effect was accordingly passed by a unanimous vote of our council yesterday.' Observing that you have published a notice in reference to the postponement of this conference, it may be proper to note the occasion therefor."



'N Moore v. Settle, June 14, 1884, 6 Ky. Law Rep. 58, it is held that the statute against gaming which gives a right of action to the loser or his creditors, or any other person, to recover money lost wife of the loser. This reverses the decision below, at gaming, does not embrace a married woman, the noted in the ALB. LAW JOURN. The court said, by Hargis, C. J.: "The section means by th. words any other person,' any other person competent to

"Eternal vigilance" has taken a fresh start this time in Demosthenes. Mr. R. D. McGibbon, of Montreal, writes us : "I was much interested in the discussion which took place in your columns, anent the saying 'Eternal Vigilance, etc.' I applied to a friend, Mr. George Murray, B. A. (Oxon), a scholar of great erudition who edits an ably conducted column of 'Notes and Queries' in the Montreal Star, and whose library contains nearly every work of reference, likely to afford the informa-institute the suit. It creates no new cause of action in favor of persons who could not sue. Nor does it relieve any person of disabilities existent at the date of its passage. It simply created a new cause of action in favor of such other persons, besides the loser and creditor, as had legal capacity, either in person or by another, to sue. Else aliens, the wife of the winner and others wholly incompetent to sue, could institute such actions, and thus, instead of the mere creature of a new cause, the statute would be misapplied to the removing of disabilities which are no part of its subject and not mentioned or alluded to in it. As therefore the statute has nothing to do with prescribing the capacity of any other person' to bring such suits, leaving that branch of the law untouched, the appellee's right to sue the winner must depend upon the law found outside of this statute. We can find none to support her claim to sue. By the first sub-section of section 34 of the Civil Code it is provided that 'in actions between husband and wife; in actions concerning her separate property; and in actions concerning her general property in which he refuses to unite, she may sue The prize of $250 offered by the New York State or be sued alone.' * * * It cannot be soundly Par Association, will be awarded at the association's said, this suit is concerning either her separate or


annual meeting, in Albany on the third Tuesday of January, 1885, to the writer of the best original paper on: "The Doctrine of Stare Decisis, its reason and its extent." Essays should be sent to the chairman of this committee, No. 115 Broadway, New York, by the first day of December, 1884, signed with a fictitious name, and accompanied with the real name and address of the writer in a envelope. Only the envelope, accompanying the successful essay will be opened, the others will be either destroyed, unopened, or returned with the manuscripts to the authors upon request. successful essay will be the property of the associa tion, and the others not required to be returned, will be preserved among its archives. Competitors for this prize must be members of the bar of the State of New York, of at least five years' standing, and the prize will be awarded only in case there should be five or more competitors. David Dudley Field, chairman, New York; Asa W. Tenney, Brooklyn; Geo. L. Stedman, Albany; John S. Gilbert, Malone; Charles D. Adams, Utica; Elliot Danforth, Bainbridge; James L. Angle, Rochester; Ansley Wilcox, Buffalo, committee on prizes, New York State Bar Association.

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tion required. Verbably Mr. Murray tells me that he has diligently searched the English Notes and Queries ab initio, including the indices, without dis covering a single note or query as to the saying in question. Mr. Murray has also sent me the enclosed letter, which I am sure will interest you." Mr. Murray writes: "After much research employed in trying to ferret out the origin of the saying, 'Eternal Vigilance is the price of liberty,' I can do no better than send you the following quotation from Demosthenes, Philip. I, 23. It seems to contain the germ of the famous common place. Dr. Ramage rather freely translates the passage as follows: 'But there is one bulwark which men of prudence possess within themselves, the protection and guard of all people, especially of free States, against tyrants. What is this? Distrust.' I am sorry that I can do no better for you, but I believe that this Greek sentence contains the sentiment which some Greek orator has condensed into the English dictum.”

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general property in the sense of that section of the
the importance of the interests involved in the deci-
Code. For that character of property does not em- sion. It is a matter of so much public concern that
brace mere rights of action for injury sustained by judicial notice may be taken of the fact that cars
the wife during coverture for assault and battery, belonging to different companies are interchangeably
slander and the like, or for rights of which she is used on all the principal railroads in the United
the meritorious cause, either at common law or by States, and that no company could do any consider-
statute, unless the statute in creating a new cause of able freighting business that did not conform to
action authorizes her to sue or invest her with this general usage. Without such usage it would
general or separate estate in the subject-matter of be difficult, if indeed it would be possible, to
the action. In actions for personal injury inflicted transact the commercial business of the country.
upon the wife during coverture, the husband and Freights for shipment across the continent could not
wife must join. But the husband may generally sue well be stopped at the terminus of each carrier's
alone, or unite his wife with him for any ordinary line and reshipped in cars of the connecting carrier.
right not concerning her general or separate estate That would occasion more delay than the necessities
accruing during the marriage relation, and in such of eommerce would tolerate. The extent of the
cases the common law, which is virtually continued usage in regard to the exchange and transportation
by sub-section 2, of section 34, supra, has wisely left of cars among so many different railroads would seem
the propriety of instituting such actions to the to require such exacting rules and regulations as
discretion of the husband; and sound reason,
would insure the strictest accountability on the part
domestic peace and good public policy unite in of companies that may transfer or haul cars over
sustaining the rule that gives to the husband such their respective roads. *** And why may
control. Our statutes have made but little change there not be such a thing as a common carrier of
if any in these rules, except to allow the wife to sue
cars either with or without its load of freight. As
if the husband deserts her, and to enable her to pro- to the freights the car contains, it will be conceded
tect her separate or general property. When statutes, such carrying roads are common carriers, and are
like that in regard to inebriate husbands, give the subject to the strict liability of such carriers, and as
wife the right to sue and recover, she may do so by has been seen by a constitutional provision, all the
force of the express words of the statute; and the rolling stock and other movable property belonging
fact that the cases in which she may sue are generally to a railroad in this State shall be considered per-
provided for in the Code of Practice and statutes sonal property. What reason exists for discrimina-
creating new causes of action which expressly in- ting against this class of personal property, and for
vest her with that right, furnishes a strong pre-holding that railway companies carrying it shall not
sumption that her capacity to sue, which has been be regarded as common carriers? The mode of
increased by statute from time to time, must be moving it whether on wheels or in carriages, ought
ascertained from the language of such statutes and not to be the foundation of any distinction. In
unrepealed consistent common law rules. The wife, either case, the property is in the exclusive care and
where she is the meritorious cause, under a statute
control of the carrier, and there is as much reason,
like this or under the one authorizing rewards, may arising from public considerations, why such a
be a proper or necessary party, yet she could not carrier should be held to the strict liability of an
maintain such actions without joining her husband insurer for the safety of the property in the one case
unless he deserts her, then she might bring or defend as in the other. * * * The undertaking of
them in his name."
defendant in regard to moving the car was within
the scope of the general business it had engaged to
do for the public, and it would seem no reason
exists why the liability for the safe delivery of the
car should not be the same as with respect to the
freight it contains, which it is conceded is that of
a common carrier. On what principle may defend-
ant be considered a common carrier as to freights on
its road, and not as to the car containing it, which it
is moving over its road with its own propelling
power. The law, as has been seen, makes all railways
in this State public highways, open to the use of all
persons for the transportation of their persons or
property, under such regulations as may be pre-
scribed by law, and it is apprehended, it is un-
lawful to make any discrimination as to the property
offered to be carried, or as to whether it belongs to
a private person or to a corporation. If it is such
property as is capable of being carried with the
means ordinarily employed by such carrier, the
obligation is imperative, and the carrier must receive

A novel case is Peoria, etc., R. Co. v. Chicago, etc.,
R. Co., Illinois Supreme Court, 19 Cent. Law J.,
111, holding that a railway company engaged in the
transportation of freights, for hire as a common
carrier, is bound to transport or haul upon its road
the cars of any other railroad company when request-
ed so to do, and will hold the same relation as a
common carrier to such cars, that it does to ordinary
freight, and in case of loss will be held to the same
measure of liability to the owner of the cars as would
attach in respect to any other property. The court
"The question presented is one of first im-
pression in this court, nor have counsel cited any
case where the exact question involved was con-
sidered by any court of last resort. It leaves this
court free to determine the law on principle as it
shall be thought best to subserve public interests, as
well as the private interests of corporations con-
cerned. No proof is needed to show the extent and

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the property and carry it with safety in the way such property is usually carried, and any failure to do so will subject the carrier to damages. The only case to which the attention of the court has been directed having any features like the one considered is Malloy v. Tioga R. Co., 39 Barb. 488. In that case the defendant company, which it is conceded was a common carrier as to freights and passengers, engaged to furnish plaintiff the motive power to draw his cars loaded with his property over its road, the plaintiff being obligated to load and unload his cars, and furnish brakemen to accompany them, but who were subject to the control of defendant's conductor, and it was held defendant assumed the liability of a common carrier, and consequently was liable for injuries to plaintiff's cars and property not caused by inevitable accident or public enemies. But aside from authority, the conclusion reached on principle is, defendant occupied the relation of a common carrier as to the car of plaintiff in his possession, as well as the freight it contained, and as such was liable for its safe return to plaintiff unless its loss occurred from causes which exempt common carriers, which is not claimed in this case." To the same effect is New Jersey R. & T. Co. v. Penn. R. Co., 27 N. J. L. 100.



has been so much misapprehension as to the grounds upon which the extradition of John E. Eno was demanded from Canada, that a brief reference to one or two of the real points raised may be interesting and profitable, at least to lawyers. While the case became in certain respects a celebrated one, it is not likely to appear in the books, as the decision is of a single judge sitting as a magistrate, and this decision, even if reported, does not fairly indicate the serious reasons advanced in favor of the extradition. These reasons are of interest to the profession because they are in some respects new, and present points never yet decided; they were well considered and deemed sound before any application was made for extradition; but the New York newspapers failed to learn, either before or after the proceedings, the real points of the controversy, and not only the general public, but even most lawyers have been led to believe that the effort to extradite Eno was a mere farce, if not worse. The New York Evening Post, after very proper and intelligent discussion from time to time of the question of common law forgery, and having presumed that though that was a question in the case it was the only question, misleads a whole community, at the expense of some reputable people, by speaking of the solemn request of our government for the extradition of Eno, and of the dignified proceedings of the Superior Court of Quebec, as "the bare-faced attempt to get hold of him in violation of the extradition treaty," and again of "the desperate attempt to kidnap him under the forms of law" and of "the evident bad faith of the attempt" * * * "to evade the provisions of the treaty."

It may be explained, in the first place, that the public prosecution of Eno was not begun in this county by the bank of which he had been president, nor by any of its officers, but was the direct result of the charge made to the grand jury at the opening of the June Term by the presiding judge, calling their attention to this particular case and exhorting them to do their duty in respect to it. No prosecutor appeared, but the

grand jury, with the assistance of the district attorney, made an examination of all the transactions of Eno, and finally brought in indictments, one for forgery in the first degree, and others containing counts for forgery in the second and third degrees. It was upon these indictments and the copies filed in the executive departments at Albany and Washington, that the request for extradition was made by our government, and upon nothing else.

The indictment for forgery in the first degree was that Eno" 'forged "a certain check for $95,000; this check was what was known as a "Cashier's check," having those words printed on the margin and waterlined in the body, and was drawn upon the bank to the order of Dyett & Co., and signed "Jno. C. Eno, President." This check was upon its face to all intents and purposes the check of the bank, made and purporting to be made as the act of the bank, and in a third person's hands binding upon the bank without more; it may be said that it was equivalent to, and purported to be, a writing executed by the bank as a corporation, as though the signature had been "The Second National Bank of New York," or the same by "Juo. C. Eno, President," or as though the writing were sealed with the seal of the corporation without any signature; it was one of the usual modes of executing a writing by a corporation.

The grand jury were advised that if the accused so executed this writing without authority and with intent to defraud, the act was forgery. The distinction between this case and that of People v. Mann, 75 N. Y. 484, is a narrow one, but it is believed that the distinction can be maintained, even if the provisions of the Penal Code were identical with those of the Revised Statutes under which that case arose. However that may be, it was not contested before the Canadian court, whether the act was forgery here, but whether it was forgery in Canada at the time of the Ashburton treaty or since.

Now on this brauch of the case considerable evidence was produced, but it will be sufficient to bring out the point to say that the prosecution proved that the accused resigned his office in writing on May 13th last; the exact time of the day could not be directly proven, and no proof was produced as to this fact by the defendant, although of course he could establish it to a certainty; but at no time during the day of May 13th did he come to the bank; at a comparatively early hour on that day the cashier and the brother of the accused, on the suggestion of the brother, went through the books of the bank to ascertain, not if there was a defalcation, but the exact amount of a defalcation already known to the brother to exist, but until that time not known to the cashier; the circumstances led to the inference that this knowledge was due entirely to a confession made by the accused the night before, as the newspapers stated at the time, or in the early part of the day of the 13th. This check for $95,000 bore date May 13th; it was executed on that day, or on the following day, the 14th, when it was presented to the bank for payment. The bank directors had a meeting on the night of the 13th to consider the defalcation, and it was at this meeting that the whole deficit was provided for; but no one at this time knew any thing about this $95,000 check, uor was it even heard of until the morning of the 14th when it was presented, and caused such a commotion among the directors and the bank examiner as came near closing the bank.

Not to detail all the circumstances, it was urged that it was a question for the jury and not for a committing magistrate whether the accused executed the check before or after his resignation. This matter the judge took upon himself to decide in favor of the accused, and weighed the evidence which was such as

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