On the other hand, if the vessel is sued, and the fine collected from her proceeds before the master is tried, how can the latter, in a subsequent criminal proceeding against himself, set up the fact that the fine imposed on him has already been paid? Is the court to violate the positive requirements of the statute, and impose no fine on the master when found guilty, or is it, by sentencing him to pay the statutory fine, to exact a double payment of the single fine which the law imposes? I think it clear, to construe the fifteenth section as applying to fines which the master may be sentenced to pay, would involve such incongruities and absurdities as render the construction wholly inadmissible.

The exceptions are sustained.

CONNECTICUT.

UNITED STATES DISTRICT COURT. In the matter of David B. Williams, a bankrupt debtor. In this case, the following points were decided by Shipman, J.: Between the service and the return day of a writ of attachment, brought in one of the State courts, against Williams, he was adjudged a bankrupt; and a trustee was duly appointed, who received a conveyance of his estate. Shortly after the return of the writ, judgment was rendered against Williams in the suit, for the debt sued for and the costs, including those of the attachment. Held, that, by the conveyance to the trustee, he acquired a title to the property attached, which related back to the date of the adjudication of bankruptcy, and was free from any lien, under the attachment, or for the officer's fees on the attachment; that he was entitled to an injunction against the levy of the execution, on the judgment of the State court, on the goods attached; that the debt on which that judgment was rendered, being merged in the judgment, was not provable against the bankrupt's estate; that the judgment could not be proved against it, since that was not a debt which existed at the date of the adjudication in bankruptcy; and that the costs of the attachment, being included in the judgment, were also merged in it, and governed by the same rule.

AN action at law was brought in 1863, in the Superior Court for Hartford County, by the Charter Oak Insurance Company against the Star Insurance Company of New York, on a policy of re-insurance, pending which the plaintiffs also instituted in the same court a suit in equity, by original process, to enjoin the defendants from setting up a want of interest in the parties originally insured, in defence to the law action; and to have the policy in suit reformed, as if made to the real parties in interest, in the same manner in which the original policy had been reformed in a prior suit, in the Superior Court for Litchfield County, against the present plaintiffs. The defendants filed a petition for the removal of the equity suit into the United States Circuit Court, which was denied, on the ground that it was simply ancillary to and a part of the law action, whereupon they applied to the Circuit Court for a mandamus to compel the removal; and, this being refused (see 2 Am. Law Rev. p. 183), filed in the Circuit Court copies of the proceedings in the suit in the Superior Court; but not until June, six weeks after the commencement of the term succeeding that term of the Superior Court in which the suit was brought. A motion to remand, on the ground that the entry was too late, and also that the cause was not separable from the law action, without connection with which it

would be barred by the Statute of Limitations, was then made and argued before Shipman, J., the plaintiffs relying mainly on the case of The Woodbury Savings Bank v. The Charter Oak Insurance Co., 31 Conn. 517. The cause was continued for a re-argument, and at the last April Term was re-argued before the full bench (Nelson and Shipman, JJ.), when the court denied the motion, upon which the plaintiffs entered a discontinuance.

GEORGIA.

UNITED STATES CIRCUIT COURT. — John M. Cuyler v. John C. Ferrill et al. This was a very important decision on the effect of the action of State courts in the Confederate States, on the rights of citizens of Northern States, during the war. The opinion of Mr. Justice Erskine has been printed in pamphlet form; but the case bears so directly on many questions, which are now being litigated before the courts, that we have prepared the following abstract. We regret that our space does not permit us to reprint the opinion at length.

The complainant, a citizen of Pennsylvania, was seised in fee of an undivided moiety of an estate in Chatham County, in Georgia; and the defendants, except Ferrill, were seised in fee of the other undivided moiety, as heirs of Telamon Cuyler. In 1863, the heirs of Telamon Cuyler petitioned the Superior Court of Chatham County for partition and sale of the estate; the court granted the prayer of the petitioners, and appointed commissioners to conduct the sale, who, after advertisement, sold the estate at public auction to the defendant Ferrill, who purchased the same for $36,000 in Confederate notes, which he paid the commissioners, who paid half of the said sum to the petitioners, and invested the other half in Confederate bonds. The commissioners gave a deed of the estate to Ferrill, which, inter alia, contained the following recital: "And whereas, the said John M. Cuyler, being resident in the United States of America, the country of an alien enemy, hath failed to execute a title to the said John C. Ferrill, the purchaser, as aforesaid; and it hath become by law the duty of the aforesaid commissioners to make and execute to the purchaser at such sale a deed of conveyance," &c. These proceedings were held, under a law of Georgia, which provide, among other matters, that if a party called upon to answer the application for partition be absent from the State, or has not been notified, he must within twelve months move the court to set it aside, or he will be concluded; but that in no event should subsequent proceedings affect the title of a bona fide purchaser, under a sale ordered by the court. The complainant brought his bill, alleging that the proceedings had were invalid, and praying for partition, and for an account of rents and profits.

The defendant Ferrill contended that he was a bona fide purchaser for value; and also, that if the proceedings in the Superior Court were irregular, yet that that court had jurisdiction of the matter, and that therefore the proceedings could not be attacked collaterally in this proceeding. But the court held that Ferrill was not a bona fide purchaser, because he had not paid the price in money, but in "Confederate notes," which had never been accepted in payment by the complainant; and further, that the Superior Court had no jurisdiction of the person of the complainant; that there was no evidence that the complainant had notice of the suit; and that, “ suppose notice-actual or constructive

came to him, still he could not be charged with laches, for, had he responded, it would have been, ipso facto, a breach of his allegiance to the United States. Hanger v. Abbott, 6 Wall. 532;" and, therefore, it was held, that the proceedings in the Superior Court were utterly void, and it was decreed that partition of the estate should be made, so that one moiety should be vested in the complainant, and that Ferrill should account to the complainant for half the rents and profits, being allowed credit for half of his actual and necessary expenses.

MARYLAND.

SUPERIOR COURT. - PRIVILEGE OF MEMBER OF CONGRESS. Charles W. Woolley v. Benjamin F. Butler, and Edward Kimberley et al. v. Benjamin F. Butler. The first of these actions was for an alleged false imprisonment of the plaintiff, by the defendant, in Washington; and the second, for an alleged indebtedness of the defendant to the plaintiffs, arising out of a transaction at Fortress Monroe. The defendant was a member of the House of Representatives of the present Congress, from the State of Massachusetts, and was seated in the cars passing through Baltimore, on his way to his home, immediately after the adjournment of Congress, on the 27th of July last, when the writs of summons, with a copy of the declaration in each case, were served upon him by the sheriff, and return made by that officer accordingly. The defendant now moved the court to declare the service of the writs and declarations illegal, inofficious, and nullities in law, and that the return of the sheriff might be set aside, vacated, and quashed.

After full argument by Mr. Merrick, for the plaintiffs, and Mr. Cushing, for the defendant, Mr. Justice Dobbin delivered the opinion of the court, to the effect that neither the clause of the Constitution privileging members of Congress from arrest, nor the general policy of the law, exempted them from service of civil process. In support of this conclusion, the learned judge cited the following cases: Nones v. Edsall, 1 Wall. Jr. 189; Catlett v. Morton, 4 Littell, 122; Legrand v. Bedginer, 4 Monr. 539; Hart v. Flynn, 8 Dana, 190; Huntington v. Shultz, Harper, 452; and also the case of McKenna v. Sprague, in the Supreme Court of the District of Columbia, during the present year, where the precise point seems to have been decided.

See "MASSACHUSETTS," infra.

MASSACHUSETTS.

SUPREME JUDICIAL COURT.- Alvan Flanders v. Charles Kimball. Petition for a discharge on habeas corpus. The petitioner is a delegate to Congress from Washington Territory. During the recess of Congress, from Sept. 16 to Nov. 10, he went to visit a relative in Canada. On his way back to Washington, he arrived at Charlestown on Nov. 2, in order to take his wife with him, she having been stopping there; but, by reason of her ill health, he was detained until Nov. 20, when he was arrested on a writ of mesne process at the suit of Roberts, McNish, & Co. The petitioner claimed he was privileged from arrest as such delegate:

1. Under the Constitution, which exempts senators and representatives from

arrest in attending, going to, and returning from a session of Congress; that he is a quasi representative, and within the spirit if not the letter of the Constitu

tion.

2. That if he was not entitled to the exemption under the Constitution, he was entitled to the same by common parliamentary law.

3. That Congress was constructively in session until Nov. 10, and that he was protected by his privilege, whether present or absent from the session.

4. That he was actually on his way to Congress when he was necessarily detained, and his privilege extended over such detention.

5. That his home was at so great a distance from Washington, that he could not go home and return between Nov. 10 and the assembling of Congress in December, and therefore he was entitled to his privilege during the whole period of the adjournment, as he was awaiting the next session of Congress.

There was no controversy as to the facts.

The case was argued at considerable length by Charles Robinson, Jr., for the petitioner; B. W. Harris, Tucker, and Knapp, for respondent.

Mr. Justice Foster, after consulting with Mr. Justice Wells, his associate on the bench, stated that he was well satisfied that the defendant could not claim to be sheltered by the provisions of the Constitution respecting privileges of members of Congress, since, at its adoption, there were no territories organized as such, and consequently no occasion for representation by delegates in Congress. The Constitution provided only for representatives from States. But there was a large class of incidental powers and privileges belonging to all legislative bodies recognized by the common law, and by the usages of Parliament and of Congress, which must therefore be held valid by judicial authority, though not specified in precise terms in the Constitution. The power to punish for contempt, and the power to expel members, were of this description. The privilege of exemption from arrest on civil process was, to a certain extent, indispensably necessary to the existence of Congress as a legislative body. There could be no doubt that the presence and co-operation of the territorial delegates were necessary to the proper performance of the work of legislation by Congress. Such delegate could not be liable to arrest on civil process at Washington, during the session; and, if he were not, the same privilege must protect the delegate in going to and returning from the territory which he was elected to represent. There could be no doubt that a necessary detention, caused by the sickness of the delegate himself, or of a member of his family, as in the present case, was also within the terms of the privilege. It was impossible for the petitioner to return to his home within the interval between the adjournment and the reassembling of Congress, and therefore he was to be regarded as waiting at a convenient place for the renewal of the session. The petitioner was, therefore, entitled to his discharge. See "MARYLAND," supra.

UNITED STATES CIRCUIT COURT. - Hetty Robinson v. Thomas Mandell et al. This case has attracted much attention, both from the very large amount of money involved, and from the interesting questions of fact and law which it presents. The complainant alleges that her aunt, Miss Sylvia Ann Howland, contracted to make a will, giving the complainant all her property, in consideration that the complainant would make a will, excluding her father, with whom

Miss Howland had quarrelled, from any share in her property; that she and Miss Howland executed wills accordingly; but that subsequently Miss Howland executed another will, in which she gave part of her property to persons other than the complainant. The bill prayed that the defendants, who were the executor and the devisees under this second will, might be decreed to hold the property devised and bequeathed by Miss Howland in trust for the complainant. The defendants denied the contract; contended that such contract, if made, was illegal; and alleged that part of Miss Howland's first will was a forgery. Much evidence was taken in the case, especially on the genuineness of Miss Howland's alleged handwriting. Much of this evidence was of a very novel and curious character; but a consideration of it, as well as of the legality of contracts for mutual wills, was cut short by the decision of the court, that the testimony of the complainant, as to the transactions between her and her aunt, which had been taken de bene esse, was not admissible; and that, apart from such testimony, there was no sufficient evidence of the contract. We insert that part of the opinion of Mr. Justice Clifford in which he decided against the admission of the complainant's testimony. The case is to be carried to Washington.

"Before proceeding to consider the merits of the case, it becomes necessary to determine, as a preliminary question, whether the complainant is a competent witness in the case in her own favor, and, if so, to what extent, and whether her testimony or any part thereof, as exhibited in her deposition taken at her request, is admissible in evidence to prove the alleged contract. On the 27th of March, 1866, the complainant by petition represented to the court that the interests of justice required, in her belief, that she should be allowed by the court to testify generally as a witness in this case, and prayed that an order to that effect might be passed by the court. Both parties were heard on the subject of the petition, and on the twenty-eighth day of June, in the same year, the court passed the order, against the objections of the respondents, that the complainant might be examined generally as a witness in the cause, reserving the questions as to the competency of the witness and the admissibility of the evidence for further consideration at the final hearing. Pursuant to that reservation, the several questions involved in the petition were again discussed by the parties at the final hearing, and the court will now proceed to state their final determination of these several questions, and the reasons upon which that determination is founded. "By the Act of Congress of the 16th of July, 1862, it was provided that the laws of the State in which the court shall be held shall be the rules of decision as to the competency of witnesses in the courts of the United States, in trials at common law, in equity, and admiralty.— 12 Stat. at Large, 588. Prior to that time, the only provision in the acts of Congress upon the subject was that contained in the thirtyfourth section of the Judiciary Act, which provides that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply; but it is well settled law that that provision does not apply in suits in equity, or in causes of admiralty and maritime jurisdiction.-1 Stat. at Large, 92. Although the Supreme Court decided, in repeated instances, that by virtue of that provision the laws of the States, and the decisions of the State courts, were rules of decision in the Federal courts, in common law controversies affecting the title of property, yet there was some contrariety of opinion whether an act of the State legislature, providing that the parties to the suit should be competent witnesses, had the effect to qualify them as such in the Federal courts. Undoubtedly the intention of Congress in enacting that provision was to