prosecution of some demand in a court of justice." Here Turnbull and others, plaintiffs, came into the circuit court with a demand against the defendants. Have they failed to prosecute it? By no means? When told by the court that the form in which it was presented was insufficient to be entertained, they did not go out of court, or abandon their demand, but at once proposed to follow it up in an amended petition. The court told them they might do this at any time within thirty days. Surely they could lose no advantage by taking the court at its word. They rightly considered themselves still in court, prosecuting their demand and failing in nothing until the thirty days should expire without an amended petition filed. Their suit is in court, whatever may be said of the original petition, and whether this is abandoned or otherwise.

The history of every suit is comprehended in three stages: its institution, its pendency and its determination. When once instituted it is thenceforward pending, in every instant of time, until finally disposed of. As expressed by the Superior Court of New Hampshire, the term "pending" means nothing more than "remaining undecided." In Maine, where the statute is similar to ours, it was held that a case was "pending" so as to authorize the taking of depositions, even where a nonsuit had been entered, but with leave to have it taken off if the plaintiff would appear on the first day of the succeeding term. Said the court: "The suit must be regarded as pending from its first institution until its final termination. Brown v. Foss, 16 Me. 257.

I find no escape from the conclusion that the suit of Turnbull and Others v. Munford and Others was pending, literally and within the meaning of the statute, when the notary sought to take the petitioner's deposition. The latter complains that the only object is to elicit facts from which to make a case against him. If this be so, it is a peril against which neither the constitution nor the statute has undertaken to protect him. It is well understood that a witness can never refuse to testify, on the ground that his testimony may render him liable to a civil action. In this case the witness is certainly no worse off than he would be if a petition were on file, legally sufficient on its face, and yet, in his estimation, untrue and fictitious in all its allegations. Would he claim, in the latter case, that the truth of the petition must first be established in order to authorize the taking of his deposition for the very purpose of establishing the same thing? Every man's knowledge of facts which may be material to the administration of justice, is, subject to certain exceptions of personal privilege, the absolute property of the law, and may be demanded of him under the forms prescribed without any reference to his convenience or his profit or loss.

As to all other matters of enquiry in this proceeding, I consider them settled by the opinion of our supreme court in ex parte McKee, 18 Mo. Rep. 599. After quoting from the several statutes relating to habeas corpus, witnesses and depositions, Judge Gamble proceeds to say: A notary public, then, being authorized to take depositions, and having the same powers for that purpose as are conferred on justices of the peace, may summon a witness before him, and enforce his attendance, if he fails to attend; and if he attends and refuses to give evidence which may lawfully be required to be given, the notary may commit him to prison until he gives the evidence." As to what evidence "may lawfully be required" on such occasions, the court declares this to embrace every question "which it is not his personal privilege to refuse to answer." It is not claimed in this case, as it was not in that, that any question of personal privilege is involved. The court, in that case, refused to issue the writ.

Upon the authority of that decision, I might have refused to issue the writ in the present case, but for the allegation in the petition that "no such cause was pending as alleged." Taking that allegation as true for the purpose intended, I was disposed to construe every doubt in favor of the liberty of the citizen, and so, not

to apply Judge Gamble's opinion to a case in which the notary had never acquired any jurisdiction of the subject matter. He is an officer of strictly defined powers, and cannot take a deposition at all, unless there be a suit actually pending in some court. But I find the allegation on that point disproved by the testimony, and hence, have no recourse left me but to remand the petitioner whence he came. PRISONER REMANDED.

Accommodation Endorsement by Cashier. WEST ST. LOUIS SAVINGS BANK v. SHAWNEE COUNTY BANK AND G. F. PARMELEE.

U.S. Circuit Court, District of Kansas, November Term, 1874. Before DILLON and FOSTER, JJ.

A cashier without special authority cannot bind his bank by an official endorsement of his individual note, and the onus is on the payee to show the cashier's authority.

The defendant, Parmelee, made his individual note payable to the order of the plaintiff, and indorsed it, "G. F. Parmelee, Cashier," and gave the plaintiff as collateral security a certificate of stock in the Shawnee county bank, issued to and owned by him (Parmelee). The consideration of the note was a loan of money by the plaintiff to Parmelee; who at the time of obtaining the loan advised the plaintiff that he intended to use the money borrowed to pay for the stock he had subscribed for in the Shawnee county bank.

The defendant, Parmelee, has failed to pay the note, and the question in the case is whether the Shawnee county bank is liable on the indorsement of the cashier above mentioned. Ennis & Foster for the plaintiff; Guthrie & Brown for the Shawnee county bank.

DILLON, Circuit Judge :-The form of the note as well as the evidence aliunde shows that the plaintiff made the loan to the defendant, Parmelee, who gave his own note for the amount and pledged his own stock as security. The note was indorsed by him thus: "G. F. Parmelee, cashier." It is established by the proof that the directors of the defendant bank did not know of this indorsement and never ratified it.

The defendant bank did not receive the proceeds of the discount of the note of Parmelee except in payment of his stock. Under these circumstances we are clear in the opinion that Mr. Parmelee's indorsement of the note as cashier of the defendant bank, did not bind it. The plaintiff had notice of the presumptive want of authority of Parmelee, both by the form of the instrument (Lemoine v. Bank of North America, I CENTRAL LAW JOURNAL, 529, and cases there cited), and the facts of the transaction of the loan to him. The cashier of a bank has no implied authority to indorse officially his individual note, thus by his own act making the bank an accommodation indorser for his own benefit. As this was done in this instance, the plaintiff bank had notice of it, and to hold the defendant bank on such indorsement, the onus to show authority, express or implied, from the directors of the defendant bank, is upon the plaintiff. It has failed to establish such authority. On the other hand the defendant bank has affirmatively established that the cashier had no such authority. The suit must be dismissed as to the defendant bank. The plaintiff is entitled to a decree against the defendant, Parmelee, for the amount of the note and for

to procure a discount upon it. This director, at the director's meeting in in which he participated, falsely asserted that the discount was for himself, and he received the proceeds of it, and it was held that the bank was affected through the director with knowledge and could not recover the amount of the bill from the party defrauded.

Knowledge possessed by a director, who was also one of the trustees of bonds assigned to innocent third person, does not charge the latter with the knowledge of the director who only nominally represents them. Curtis v. Leavitt, 15 N. Y. 9.

Now, inasmuch as the learned Judge who delivered the opinion in the case of Gannon v. Stevens, cites the same cases (which one also cited in counsel's brief) as being in conflict with the doctrine of Campbell v. The State, and expressly declares in favor of overruling the last named case, I will employ his words to answer the startling proposition of "A. B."

I quote verbatim from a certified copy of Judge Valentine's opinion in Gannon v. Stevens, to-wit:

· Corporations having common officials are not," says Mr. Brice in his treatise ou Ultra Vires, 350 (Eng. Ed.), "necessarily affected through these with a knowledge of each other's transactions." He cites Re Marseilles Railway Co. etc., Law Rep. 7 Ch. 161; Re European Bank, Law Rep. 5 Ch. 850. Compare Re Contract Corp. etc. Law Rep. 8 Eq. 14: Gray v. Lewis, Ib. 526.

[Correspondence.]

though in the opinion of the writer of this opinion it is unfortunate that such decisions were ever made, and they should be overruled. Mead v. McGrow, 19 Ohio St., 55, and cases there cited; Poulette v. Brown, 40 Mo. 52, 57, et seq., and cases there cited; Blanchard v. Pratt, 37 Ill., 243, 246; Callahan v. Shaw, 24 Iowa, 441, 447. I shall certainly never be in favor of reversing a judgment of the district court for refusing to give such an instruction as the one given in this case. The instruction referred to is as follows: 'If in your examination of the testimony in this case, you should be satisfied that

tion.

EDITORS CENTRAL LAW JOURNAL-The interest this question is now exciting, and the attention you are giving the question, is my apology for referring your readers to a decision of the Supreme Court of Georgia, made in 1854, in the case of Shields v. Yonge, Supt., etc., 15 Ga. 349. That was a suit brought by a father against a railroad, alleging the death of his son, aged 18 years, caused by the negligence of the employees of the road, and claiming damages for the loss of services of the deceased. Defendant demurred to the action. The demurrer was sustained by court below, and case carried to the supreme court, where the ruling of the court below was reversed, on the ground that the homicide was of such a grade as not to amount to a felony, but only to a misdemeanor, and that in case of misdemeanor, the private injury was neither merged in the public, nor suspended until the public prosecution should be ended.

""

The court say, Judge Benning delivering the opinion: I must say, therefore, that Lord Ellenborough's unsupported nisi prius declaration, that "in a civil court the death of a human being could not be complained of as an injury," opposed as it is to the expressed opinion of Comyn, (Comyn's Digest Trespass, b. 5); to the plainly to be implied opinion of Blackstone (4 Bl. Com. 6); from every inference from analogy, to the maxim, that when the reason is the same, the law is the same, seems to me to be too broad.

The case is well discussed, and will repay looking over.
E. N. BROYLES.
Atlanta, Ga., December 14, 1874.

Notes and Queries.

I. FALSUS IN UNO, FALSUS IN OMNIBUS.

ERIE, KAN., December 14th, 1874. EDITORS CENTRAL LAW JOURNAL:-Your correspondent, "A. B.," in the JOURNAL of December 11th, having read a syllabus of the case of Gannon v. Stevens, recently decided by the Supreme Court of Kansas, says that the maxim, "falsus in uno, falsus in omnibus," was not considered or applied in that case, as I stated in my note published in No. 48 of the JOUrnal.

It is but just to myself to say that since writing the note referred to I have obtained a certified copy of the opinion, and find that the question was not only passed upon by the court, but was the main point urged in the brief of counsel.

"

"A. B." says we deem it but just to the Supreme Court to briefly state its decisions on the principle of law in question in former cases," and after referring approvingly to the cases of Campbell v. The State (3 Kansas, 488), and The State v. Horne (9 Kansas, 131), he proceeds: "This proposition" (substantially the proposition embraced in the instruction quoted in my note, ante, p. 599) "is in harmony with the majority of decided cases, and with the fundamental principles of the law of evidence. In fact the cases cited by him (referring to the cases cited in my note) support the above rule in toto, and do not conflict with the decisions of the Supreme Court of Kansas so far as reported."

you should disregard the whole of the testimony of such witness.'''

The fact that the case of Wood v. M. K. &. T. R'y., referred to by "A. B.," does not even contain a mention of the principle under discussion, together with his statement that Mead v. McGrow, 19 Ohio St. 55, is in harmony with Campbell v. The State, 3 Kansas, 488, would suggest that your correspondent is a writer " of infinite jest."

SCIENCE OF THE LAW.

"1 A.

II. FALSUS IN UNO, FALSUS IN OMNIBUS. EDITORS CENTRAL LAW JOURNAL :-In No. 50, of your journal, B.," a correspondent, defends the opinion of the Supreme Court of Kansas, in State v. Horn, 9 Kas. 131, wherein the court hold that it is proper to instruct a jury "That, if they believe a witness has knowingly and willfully testified falsely in respect to a mterial fact in the case, they must disregard the whole of such witness, testimony," which A. B." approves as " sound law" and 'which will be found in harmony with the majority of decided cases, and with the fundamental principles of the law of evidence." We take issue with 'A. B." Such an instruction is not sustained by a majority of decided cases, nor consistents with the principles of the law of evidence. If a competent witness is introduced and testifies, the jury are the sole judges of his credibility, and of the right to be given to the whole, or any part of his testimony, under the general rules and instructions of the court. The foregoing proposition no one doubts. If it is the province of the jury to judge of the credibility of the testimony, and of the court to furnish only general rules for their guidance, it would be erroneous for the court to direct them to disregard the whole or any part of the testimony in the case.

A witness may, knowingly and willfully, swear falsely to one material fac and truthfully to many other material facts; in that case, if the Kansas rule be the correct one, the court would instruct the jury to disbelieve the witness in regard to matters about which he has testified truthfully.

Falsus in uno, falsus in omnibus, is a maxim that is, in common law trials, to be applied by the jury, according to their own judgment, for the ascertainment of the truth, and is not a rule of law in virtue of which the judge may withdraw the evidence from their consideration, or direct them to disregard it altogether. State v. Williams, 2 Jones N. C. 257; 19th Ohio St. 55; also the rule in Missouri. "The maxim does not operate to preclude the jury from believing the witness, if they choose to do so." See Mercer v. Wright, 3 Wisc. 645; Knowles v. People, 15 Mich. 411; Lewis v. Hodgdon, 17 Maine, 267; 1 Taylor's Evidence, 2 171.

An instruction that gives the jury the liberty, if they see proper, to disregard or reject the entire testimony of a witness who has knowingly and willfully sworn falsely to a material fact in issue, would be proper, and leave the consideration of all the matters in relation thereto with the jury, where it properly belongs; but, if the court directs the jury that, if they believe the witness has knowingly testified falsely to a material fact in the issue, they must disregard his entire testimony, the maxim is then treated as a rule of law by which the judge withdraws the evidence from their further consideration, and prevents their believing the witness in matters they may think he testified truthfully about, and for that reason such an instruction is erroneous.

or city liable under the statute (Cook v. Milwaukee, 24 Wis. 270, and 27 Id. 191); but if the walk is in other respects unskilfully or improperly built, so as unnecessarily to increase the danger of persons walking thereon while it is covered with snow and ice, this will render it defective or insufficient within the meaning of the statute.

3. Evidence for the defendant city, "that there were a great number of bridges in the city that were built higher than the street, and that nearly all the approaches to these bridges were raised," was properly rejected as irrelevent to the issue.

WASHINGTON LAW REPORTER, JANUARY 5. Landlord's Lien for Rent in the District of Columbia, and his Remedy Therefor.-Joyce v. Wilkenning, Supreme Court, District of Columbia, General Term. [1 Wash. Law Rep. 357.] 1. A landlord can claim the lien conferred by the act of Congress of February 22, 1867, for rent due and in arrear, and also for any installment of rent, although the tenant has occupied the premises only for a part of the time during which said installment is accruing.

2. Where the lease is for a period of several years, and the rent is payable monthly, and the tenant is about to remove his goods and chattels from the leased premises, the landlord may issue his attachment under said act, and serve it on said chattels for rent in arrear, and for rent which will be due and payable for the month, during a part of which the tenant occupied the premises.

3. The lease was for a term of five years, at the annual rent of $1,200, payable in monthly installments of $100. The tenant threatened to quit the premises after being in possession a few months, having paid all the rent due for the portion of time he occupied the premises, and it was held that a bill in equity to enforce the landlord's lien, by attaching all the goods and chattels of the tenant, in order to secure or pay the whole of the rent for the entire term of the lease, could not be maintained.

CHICAGO LEGAL NEWS, DECEMBER 26.

What Constitutes a Navigable River.-The United States v. The Steamboat Monticello; Supreme Court of the United States, October term, 1874. Opinion by Mr. Justice Davis. 7 Chi. Leg. News, 105. This is an exceedingly interesting opinion on a question which has frequently been before the courts, and as to which legislatures have been appealed to in many cases. There are probably twenty acts in the session laws of Tennessee alternately declaring the Hatchie river navigable and notn avigable. The Fox river, in Wisconsin, although a small stream, and broken by rapids in several places, has, from the earliest history, constituted a highway of great value between the Mississipp iriver and the great lakes. Mr. Justice Davis states the previous rulings of court on the question, what constitutes a navigable river, as follows: "This court held in the case of the Daniel Ball (10 Wallace) that those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And a river is navigable water of the United States when it forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other states or foreign countries in the customary modes in which such commerce is conducted by water. 11 Wallace, The Montello. Apply these tests to the case in hand, and we think the question must be answered in the

affirmative."

He then gives an interesting geographical and historical account of the stream and the mode in which commerce has been carried on upon it. He then says:

The true test of the navigability of a stream does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation. If this were so, the public would be deprived of the use of many of the large rivers of the country, over which rafts of lumber of great value are constantly taken to market. It would be a narrow rule to hold that in this country, unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. The capability of use by the public for purposes of transportation and commerce, affords the true criterion of the navigability of a river, rather than extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway. Vessels of any kind that can float upon the water, whether propelled by animal power, by the wind, or by the agency of steam, are, or may become, the mode by which a vast commerce can be conducted, and it would be a mischevious rule that would exclude either in determining the navigability of a river. It is not, however, as Chief Justice Shaw said (a1 Pick. 344): Every small

creek in which a fishing skiff or gunning canoe can be made to float at high water, which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade or agriculture."

The following cases are cited as supporting the views here presented : Moore v. Sanborn, 2 Michigan, 519; Brown v. Chadbourne, 31 Maine, 1; People v. Canal Appraisers, 33 New York, 461; Morgan v. King, 35 New York, 459; Flannagan v. Philadelphia, 42 Pennsylvania, 219; Monongahela Bridge Co. v. Kirk, 46 Pennsylvania, 112; Cox v. The State, 3 Blackford, 193; Hogg v. Zanesville Canal Co., 5th Ohio, 410; Hickok v. Hine, 23 Ohio State, 527; Jolly v. Terre Haute Bridge Co., 6th McLean, 237; Rowe v. The Granite Bridge Co., 21 Pickering, 346; Ills. River Packet Co. v. Peoria Bridge Co., 38 Illinois, 467; Harrington v. Edwards, 17 Wisconsin, 586.

Liability of a Carrier for Wrecking a Barge upon a Bridge Pier During Tempestuous Weather.—The Steamboat Mollie Mohler v. The Home Insurance Company, same court, opinion by Mr. Justice Davis. [7 Chi. Leg. News, 105.] The appellee was the insurer of a cargo of wheat shipped on a barge appurtenant to the steamer Mollie Mohler, on the 12th of May, 1866, at Mankato, in the Minnesota river, in the state of Minnesota, and destined to St. Paul, on the Mississippi. The barge was wrecked by collision with a bridge pier just above the city of St. Paul, and the cargo became a total loss. This loss the insurance company paid, and filed this libel to recover the amount under its right of subrogation. The defence was that the loss was occasioned through a peril of navigation, which was one of the exceptions contained in the bill of lading. But the court, upon an examination of the testimony, hold` that it was negligence in the master of the steamboat to attempt the passage of the bridge in the state of weather then prevailing, and that the defence must hence fail. The learned justice said that "the general doctrine, that a carrier is not answerable for goods lost by tempest, has no application to such a case." And in concluding the opinion, he uses the following language:

"The officers of steamers plying the western waters must be held to the full measure of responsibility in navigating streams where bridges are built across them. These bridges, supported by piers, of necessity increase the dangers of navigation, and river men, instead of recognizing them as lawful structures built in the interest of commerce, seem to regard them as obstructions to it, and apparently act on the belief that frequent accidents will cause their removal. There is no foundation for this belief. Instead of the present bridges being abandoned, more will be constructed. The changed condition of the country, produced by the building of railroads, has caused the great inland waters to be spanned by bridges. These bridges are, to a certain extent, impediments in the way of navigation, but railways are highways of commerce as well as rivers, and would fail of accomplishing one of the main objects for which they were created-the rapid transit of persons and property-if rivers could not be bridged. It is the interest as well as the duty of all persons engaged in business on the water routes of transportation, to conform to this necessity of commerce. If they do this and recognize railroad bridges as an accomplished fact in the history of the country, there will be less loss of life and property, and fewer complaints of the difficulties of navigation at the places where these bridges are built. If they pursue a different and contrary course, it rests with the courts of the country, in every proper case, to remind them of their legal responsibility."

A Woman Cannot be a Justice of the Peace in Maine.

Opinion of the Supreme Judicial Court of Maine certified to the governor. On the 6th of February last, the governor and council of Maine requested the opinion of the Supreme Judicial Court of that state on the following question:

First-Under the constitution and laws of this state, can a woman, if duly appointed and qualified as a justice of the peace, legally perform all acts pertaining to such office?

Second-Would it be competent for the legislature to authorize the appointment of a married or unmarried woman to the office of justice of the peace; or to administer oaths, take acknowledgment of deeds or solemnize marriage, so that the same shall be legal and valid?

These questions the court, after stating their reasons at some length, answer as follows:

"To the first question proposed, we answer in the negative.

"To the second, we answer that it is competent for the legislature to authorize the appointment of a married or unmarried woman to administer oaths, take acknowledgement of deeds or solemnize marriages, so that the same shall be legal and valid."

In this opinion five of the judges, Appleton, Ch. J., and Cutting, Danforth, Peters and Virgin, JJ., concurred. Walton and Burroughs, JJ., unite in a dissenting opinion; and Judge Dickerson presents his views in a separate dissenting opinion.