judged in the case of Floyd and Barker, reported by Coke, in 1608 (12 Coke, 25) where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption impeaching the verity of their rec ords, except before the King himself, and it was observed that if they were required to answer otherwise, it would "tend to the scandal and subversion of all justice, and those who are the most sincere, would not be free from continual calumniations." was adjudged in the recent case of Fray v. Blackburn, 3 Best & S., 576, by the Queen's Bench of England. One of the judges of that Bench was sued for a judicial act, and on demurrer one of the objections taken to the declaration was, that it was bad in not alleging malice. Judgment on the demurrer having passed for the defendant, the plaintiff applied for leave to amend his declaration by introducing an allegation of malice and corruption; but Mr. Justice Compton replied: "It is a principle The truth of this latter observation is mani- of our law that no action will lie against a judge fest to all persons having much experience with of one of the superior courts for a judicial act, judicial proceedings in the superior courts. though it be alleged to have been done maliControversies involving not merely great pe ciously and corruptly; therefore the proposed alcuniary interests, but the liberty and character legation would not make the declaration good. of the parties and, consequently, exciting the The public are deeply interested in this rule, deepest feelings, are being constantly deter which, indeed, exists for their benefit, and was mined in those courts, in which there is a great established in order to secure the independence conflict in the evidence and great doubt as to of the judges, and prevent them being harassed the law which should govern their decision. It by vexatious actions; " and the leave was reis this class of cases which imposes upon the fused. Scott v. Stansfield, L. R., 3 Exch., 220. judge the severest labor, and often create in his In this country the judges of the superior mind a painful sense of responsibility. Yet it courts of record are only responsible to the peois precisely in this class of cases that the losing ple, or the authorities constituted by the peoparty feels most keenly the decision against ple, from whom they receive their commissions, him, and most readily accepts anything but the for the manner in which they discharge the soundness of the decision in explanation of the great trusts of their office. If in the exercise action of the judge. Just in proportion to the of the powers with which they are clothed as strength of his convictions of the correctness of ministers of justice, they act with partiality, or his own view of the case is he apt to complain maliciously, or corruptly, or arbitrarily, or opof the judgment against him, and from compressively, they may be called to an account by plaints of the judgment to pass to the ascription of improper motives to the judge. When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision, often finds vent in imputations of this character, and from the imperfection or human nature this is hardly a subject of wonder. If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an ac tion against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action. impeachment and suspended or removed from office. In some States they may be thus suspended or removed without impeachment, by a vote of the two Houses of the Legislature. In the case of Randall v. Brigham, 7 Wall., 523 [74 U. S., XIX., 285] decided by this court at the December Term of 1868, we had occasion to consider at some length the liability of judicial officers to answer in a civil action for their judicial acts. In that case the plaintiff had been removed by the defendant, who was one of the justices of the Superior Court of Massachusetts, from the Bar of that State, and the action was brought for such removal, which was alleged in the declaration to have been made without lawful authority, and wantonly, arbitrarily and oppressively. In considering the questions presented the court observed that it was a general principle, applicable to all judicial officers, that they were not liable to a civil action for any judicial act done by them If upon such allegations a judge could be within their jurisdiction; that with reference to compelled to answer in a civil action for his ju- judges of limited and inferior authority it had dicial acts, not only would his office be de been held that they were protected only when graded and his usefulness destroyed, but he they acted within their jurisdiction; that if this would be subjected for his protection to the ne- were the case with respect to them, no such limitcessity of preserving a complete record of all ation existed with respect to judges of superior the evidence produced before him in every liti or general authority; that they were not liable gated case, and of the authorities cited and ar- in civil actions for their judicial acts, even when guments presented, in order that he might be such acts were in excess of their jurisdiction able to show to the judge before whom he might "unless, perhaps, when the acts in excess of be summoned by the losing party-and that jurisdiction are done maliciously or corruptjudge perhaps one of an inferior jurisdiction—ly." The qualifying words were inserted upon that he had decided as he did with judicial in tegrity; and the second judge would be sub jected to a similar burden, as he in his turn might also be held amenable by the losing party. Some just observations on this head by the late Chief Justice Shaw, will be found in Pratt v. Gardner, 2 Cush., 68, and the point here the suggestion that the previous language laid down the doctrine of judicial exemption from liability to civil actions in terms broader than was necessary for the case under consideration, and that if the language remained unqualified it would require an explanation of some appar ently conflicting adjudications found in the reports. They were not intended as an expres sion of opinion that in the cases supposed such | the plaintiff with the greater excommunication liability would exist, but to avoid the expression for contumacy in not taking upon himself the of a contrary doctrine. administration of an intestate's effects, to whom the plaintiff was next of kin, the citation issued to him being void, and having been so adjudged. The question presented was whether, under these circumstances, the action would lie. The citation being void, the plaintiff had not been legally brought before the court, and the subsequent proceedings were set aside, on appeal, on that ground. Lord Ellenborough observed that it was his opinion that the action was not maintainable if the ecclesiastical court had a general jurisdiction over the subjectmatter, although the citation was a nullity, and said that no authority had been cited to show that the judge would be liable to an action where he has jurisdiction, but has proceeded erroneously, or, as it is termed, inverso ordine." Mr. Justice Blanc said there was "a material distinction between a case where a party comes to an erroneous conclusion in a matter over which he has jurisdiction and a case where he acts wholly without jurisdiction;" and held that where the subject-matter was within the jurisdiction of the judge, and the conclusion was erroneous, although the party should, by reason of the error, be entitled to have the conclusion set aside and to be restored to his former rights, yet he was not entitled to claim compensation in damages for the injury done by such erroneous conclusion, as if the court had proceeded without any jurisdiction. Calder v. Halket, 3 Moore P. C., 28. In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of Jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subjectmatter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settle ment of estates of deceased persons, should proceed to try parties for public offenses, jurisdic tion over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would af ford no protection to him in the exercise of the usurped authority. But, if on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a great er punishment than that authorized by the law upon its proper construction no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his gen eral jurisdiction over the subject-matter is in voked. Indeed, some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for er rors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons. The distinction here made between acts done in excess of jurisdiction and acts where no jurisdiction whatever over the subject-matter exists, was taken by the Court of King's Bench, in Ackerly v. Parkinson, 3 M. & S., 411. In that case an action was brought against the vicar-general of the Bishop of Chester and his surrogate, who held the consistorial and epis. copal court of the Bishop, for excommunicating The exemption of judges of the superior courts of record from liability to civil suit for their judicial acts, existing when there is jurisdiction of the subject matter, though irregularity and error attend the exercise of the jurisdiction, the exemption cannot be affected by any consideration of the motives with which the acts are done. The allegation of malicious or corrupt motives could always be made, and if the motives could be inquired into, judges would be subjected to the same vexatious litigation upon such allegations, whether the motives had or had not any real existence. Against the consequences of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must in such cases resort. But for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction, the judges of these courts can only be reached by public prosecu tion in the form of impeachment, or in such other form as may be specially prescribed. If, now, we apply the principle thus stated, the question presented in this case is one of easy solution. The Criminal Court of the District, as a court of general criminal jurisdiction, possessed the power to strike the name of the plaintiff from its rolls as a practicing attorney. This power of removal from the Bar is possessed by all courts which have authority to admit attorneys to practice. It is a power which should only be exercised for the most weighty reasons, such as would render the continuance of the attorney in practice incompatible with a proper respect of the court for itself or a proper regard for the integrity of the profession. And, except where matters occurring in open court in presence of the judges constitute the grounds of its action, the power of the court should never be exercised without notice to the offending party of the grounds of complaint against him, and affording him ample opportunity of explanation and defense. This is a rule of natural justice, and is as applicable to cases where a proceeding is taken to reach the right of an attorney to practice his profession as it is when the proceeding is taken to reach his real or personal property. And even where the matters constituting the grounds of complaint have occurred in open court, un der the personal observation of the judges, the attorney should ordinarily be heard before the order of removal is made, for those matters may not be inconsistent with the absence of improper motives on his part, or may be sus ceptible of such explanation as would mitigate their offensive character, or he may be ready to make all proper reparation and apology. Admission as an attorney is not obtained with out years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession, it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the Bar should, therefore, never be decreed where any punishment less severe-such as reprimand, temporary suspension or fine-would accomplish the end desired. 66 man. But, on the other hand, the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in oper: court, but it includes abstaining out of court from all insult ing language and offensive conduct toward the judges personally for their judicial acts. “In matters collateral to official duty," said Chief Jusitce Gibson in the case of Austin and others, the judge is on a level with the members of the bar as he is with his fellow citizens, his title to distinction and respect resting on no other foundation than his virtues and qualities as a But it is, nevertheless, evident that pro fessional fidelity may be violated by acts which fall without the lines of professional functions, and which may have been performed out of the pale of the court. Such would be the consequences of beating or insulting a judge in the street for a judgment in court. No one would pretend that an attempt to control the deliberation of the Bench, by the apprehension of violence, and subject the judges to the power of those who are, or ought to be, subordinate to them, is compatible with professional duty, or the judicial independence so indispensable to the administration of justice. And an enormity of the sort, practiced but on a single judge, would be an offense as much against the court, which is bound to protect all its members, as if it had been repeated on the person of each of them, because the consequences to suitors and the public would be the same; and whatever may be thought in such a case of the power to punish for contempt, there can be no doubt of the existence of a power to strike the offending attor ney from the roll," The order of removal complained of in this case, recites that the plaintiff threatened the presiding justice of the Criminal Court, as he was descending from the bench, with personal chastisement for alleged conduct of the judge during the progress of a criminal trial then pending. The matters thus recited are stated as the grounds for the exercise of the power possessed by the court to strike the name of the plaintiff from the roll of attorneys practicing therein. It is not necessary for us to determine in this case whether under any circumstances the verity of this record can be impeached. It is sufficient to observe that it cannot be impeached in this action or in any civil action against the defendant. And if the matters recited are taken as true there was ample ground for the action of the court. A greater indignity could hardly be offered to a judge than to threaten him with personal chastisement for his conduct on the trial of a cause. A judge who should pass over in silence an offense of such gravity would soon find himself a subject of pity rather than of respect. The Criminal Court of the District erred in not citing the plaintiff, before making the order striking his name from the roll of its attorneys, to show cause why such order should not be made for the offensive language and condudt stated, and affording him opportunity for expla nation or defense or apology. But this erroneous manner in which its jurisdiction was exercised, however it may have affected the va lidity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever over its attorneys. We find no error in the rulings of the court below, and its judgment must, therefore, be affirmed; and it is so ordered. Mr. Justice Davis, dissenting: I agree that judicial officers are exempt from responsibility in a civil action for all their judicial acts in respect to matters of controversy within their jurisdiction. I agree, further, that judges of superior or general authority are equally exempt from liability, even when they have exceeded their jurisdiction, unless the acts complained of were done maliciously or corruptly. But I dissent from the rule laid down by the majority of the court, that a judge is exempt from liability in a case like the present, where it is alleged not only that his proceeding was in excess of jurisdiction, but that he acted maliciously and corruptly. If he did so, he is, in my opinion, subject to suit the same as a private person would be under like circumstances. I also dissent from the opinion of the majority of the court for the reason that it discusses the merits of the controversy, which, in the state of the record, I do not consider open for examination. I am authorized to say that Mr. Justice Clifford concurs in this dissent. Cited 19 Wall., 513; 82 N. Y., 166; 20 Am. Rep., 482 (6 W. Va., 486); 39 Am. Rep., 388, 731 (93 Pa. St., 116); 23 Am. Rep., 691 (23 Minn., 350); 42 Am. Rep., 614, 649 (16 S. C., 445); 25 Am. Rep., 692, 694 (54 Ala., 393); 29 Am. Rep., 86, 87, 93, 95 (73 N. Y., 25, 27, 37); 32 Am. Rep., 649 (30 Gratt., 24); 37 Am. Rep., 187 (54 Iowa., 74); 38 Am. Rep., 51 (56 Cal., 65). (See S. C., 13 Wall., 363-366.) Custom or usage, when receivable to explain contract-may be proved by one witness. 1. Custom or usage may properly be received to ascertain and explain the meaning and intention of the parties to a contract, whether written or parol, the meaning of which could not be ascertained without the aid of such extrinsic evidence, where the parties knew of the existence of the custom or usage, and contracted in reference to it. 2. Parties who contract on a subject-matter concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary. 3. Usage may be proved by a single witness, who has full knowledge and a long experience on the subject. [No. 143.] Submitted Mar. 22, 1872. Decided Apr. 15, 1872. N ERROR to the Circuit Court of the Unit IN to of the U The case is stated by the court. error: The testimony did not establish the existence of a custom of a certain, uniform, public, fixed character, reasonable and notorious, so far as to justify a presumption of the knowledge of its existence by the parties sought to be charged. A distinction is to be made between custom and usage. There may be a usage without a custom, but there can be no custom without a usage, for custom is the result of usage. To establish a custom, there must have existed a uniform, long established, widely, universally and notoriously known and recognized commercial habit to transact business in a certain way, in order that this habit may be considered an incident to a mercantile contract without being men tioned, and so become one of its elements. Edie v. E. I. Co., 2 Burr., 1216; Smetz v. Kennedy, Riley, 38, n. q; 2 Pars. Cont., 544; Cope v. Dodd, 13 Pa., 37; Garrison v. Ins. Co., 19 How., 317 (60 U. S., XV., 658); Adams v. Otterback, 15 How., 545; U. S. v. Buchanan, 8 How., 102; Coxe v. Heisley, 19 Pa., 246; Walker v. Barren, 6 Minn., 513; 1 Duer, Ins., 182. The testimony as to usage was inadmissible for want of an averment in the pleadings. The fact of the existence of a usage was in dispensable to a recovery. An omission of its averment was fatal. Mann v. Morewood,5 Sandf.,564; Bk. v. Smith, 11 Wheat., 161; N. C. Co. v. Kidd, 37 Cal., 304; Green v. Palmer, 15 Cal., 413; Wallace v. Morgan, 23 Ind., 403; Renner v. Bk., 9 Wheat., 594, Templeman v. Biddle, 1 Harr. (Del.) 522. NOTE.-Usage and custom; admissibility in construction of contracts. See note to Adams v. Otterback, 56 U. S. (15 How.), 539. The testimony of one witness is insufficient to establish a custom, or prove that any fact is notoriously known. Lee v. Merrick, 8 Wis., 234; Halwerson v. Cole, 1 Speers, 321; Wood v. Hickok, 2 Wend., 501; Bissell v. Ryan, 23 Ill., 569; Watts v. Lindsey, 7 Wheat., 162. Usages, adding new incidents to contracts, should be sparingly adopted. They are not regarded with favor by courts of justice. Rogers v. Mech. Ins. Co., 1 Story, 608; Donnell v. Ins. Co., 2 Sumn., 377; Crawford v. Clark, 15 Ill., 567; Bolton v. Colder, 1 Watts., 363; Power v. Kane, 5 Wis., 265; Caldwell v. Dawson, 4 Met. (Ky.) 121; Thompson v. Riggs, 5 Wall., 679 (72 U. S., XVIII., 707). The contract being plain, clear and free from ambiguity, requires no explanation; and therefore parol testimony is not admissible to interpret its language. The alleged custom is void for uncertainty. Wallace v. Morgan, 23 Ind., 403. Messrs. Geo. H Williams, Atty Gen., and B. H. Bristow, Solicitor-Gen., for defendant in error: The known and established usage of trade, prevailing in the place where a contract is made respecting matters to which such usages relates, must be considered to be tacitly annexed to the terms of the contract, unless it is expressly excluded. Add. Cont., 851; Chit. Cont., 10th ed., by Perkins, 18, 19; Croucher v. Wilder, 98 Mass., 325; 2 Pars. Cont., 5th ed., 337; Hutton v. Warring, 1 Mees. & W., 466; Humfrey v. Dale, 7 El. & Bl., 275; Conner v. Robinson, 2 Hill (S. C.) 254; Dalton v. Daniels, 2 Hilt., 474. The only qualification of the principle is, that the usage must not be repugnant to or inconsistent with the written contract; for as the office of the usage is simply one of exposition, to ascertain the understanding of the parties with reference to the terms of the contract, where a repugnancy or inconsistency exists, the express stipulation of the parties will necessarily prevail. Accordingly, parol evidence of the usage of a particular trade, where such usage is not in consistent with the written contract, is always admissible. Humfrey v. Dale [supra]. The cause of action was founded not upon the usage but upon the bond and the alleged breach of the condition thereof, and it was sufficiently set forth in the complaint. No authority is cited by the counsel where it has been ruled that, in a suit on a written contract, a usage of trade must be pleaded before it can be received in evidence to explain the instrument sued on, while the contrary has been directly and distinctly held. See, Lowe v. Lehman, 15 Ohio St., 179; 2 Archb. (N. P.) 208; 2 Steph. (N. P.) 1549, n. 2. Another objection urged is, that the testimony of one witness is insufficient to establish a custom. But as a rule of law, governing the proof of usages of trade, this proposition cannot be sustained upon principle or authority. If a single witness testifies fully and explicitly to the existence of a usage, and is not contradicted, it cannot be assumed, as a legal conclusion, that the proof is insufficient. Marston v. Bk., 10 Ala., 284; Vail v. Rice, | tion contradicts it, cannot be received in evi5 N. Y., 158; Partridge v. Forsyth, 29 Ala.,dence to affect it; and that usage is not allowed 203. Mr. Justice Davis delivered the opinion of the court: In June, 1867, Robinson & Co., merchants of San Francisco, entered into a written agreement with Major T. T. Hoyt, Assistant Quartermaster of the United States, to deliver on his order" 1,000,000 bushels of first quality clear bar ley. The barley, according to the terms expressed in the contract, was to be delivered between the 1st of July, 1867 and the 30th June, 1868, in such quantities and at such times as might be required for the use of the government troops, and at certain posts named; the precise points at those posts to be designated by the acting quartermasters at the posts themselves. But there was no specification in the instrument, of any particular manner in which the barley was to be delivered, as whether loose, or in what is known as "bulk," or in sacks. Under this contract, Robinson & Co., delivered in sacks all the barley required, between July 1, 1867 and the 1st of January, 1868; how much, exactly, did not appear, but it was more than 30,000 pounds. On the 10th of January, 1868, being required to deliver 30,000 pounds more, they tendered the quantity in bulk, that is to say, loose in wagons. The officer at the post where it was tendered, refused to receive it, because it was not in sacks. Thereupon the contractor refused to deliver any more, and abandoned his contract altogether. On suit brought by the United States, the government counsel asked a witness engaged in the grain business in California in 1867 and 1868, this question: "Do you know the usage of the trade with respect to the delivery of bar ley?" The question was objected to on the ground, among others, that it was incompetent for the plaintiff to vary the terms of the con tract by usage, but the objection was overruled The witness then testified that it was the custom in California as of course to deliver grain in sacks, and had always been the custom; that he never knew it to be delivered in any other way, unless by special agreement; the custom of the trade being to deliver by sacks altogether; that there has been a few experiments at shipping wheat in bulk, but that these were excep tional, and that the vessels plying around the bay were not constructed for thus carrying grain; that sacks cost about seventeen cents apiece, and held from 100 to 112 pounds. There was no other witness produced to show the usage set up. The court (which by consent of the parties had been substituted in the place of a jury) found that, at the time of this contract, it was the usage in California, and always had been prior to that time, to deliver barley in sacks, unless it was expressly stipulated other wise in the contract, and that therefore a tender in bulk did not satisfy the contract. Judgment being accordingly given for the United States, the defendant brought the case here on exceptions to the evidence and finding. In Bernard v. Kellogg, 10 Wall., 383 [77 Ü. S., XIX., 987] this court decided that proof of a custom or usage inconsistent with a contract and which either expressly or by necessary implica to subvert the settled rules of law. But we stated at the same time that custom or usage was properly received to ascertain and explain the meaning and intention of the parties to a contract, whether written or parol the meaning of which could not be ascertained without the aid of such extrinsic evidence, and that such evidence was thus used on the theory that the parties knew of the existence of the custom or usage and contracted in reference to it. This latter rule is as well settled as the former (Coggs v. Bernard, 1 Sm. L. Cas., 782) and under it the evidence was rightly received It is obvious by the steps which the plaintiffs took to perform their contract, that there are two modes in which barley may be delivered, for they delivered part in sacks and tendered part in bulk. And it is equally obvious, on account of the additional cost, that they would not have delivered the barley in sacks for a period of six months, if the contract on its face was satisfied by a delivery in bulk. The contract, by its terms, is silent as to the mode of delivery, and although there are two modes in which this can be done, yet they are essentially different, and one or the other and not both must have been in the mind of the parties at the time the agreement was entered into. In the absence of an express direction on the subject, extrinsic evidence must of necessity be resorted to in order to find out which mode was adopted by the parties; and what extrinsic evidence is better to ascertain this than that of usage? If a person of a particular occupation in a certain place makes an agreement by virtue of which something is to be done in that place, and this is uniformly done in a certain way by persons of the same occupation in the same place, it is but reasonable to assume that the parties contracting about it, and specifying no manner of doing it different from the ordinary one, meant that the ordinary one and no other should be followed. Parties who contract on a subjectmatter concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary. The evidence in the present case did not tend to contradict the contract, but to define its meaning, in an important point, where, by its written terms, it was left undefined. This, it is settled, may be done. It is objected that the usage was proved by a single witness. But we cannot assert, as a rule of law governing proof of usages of trade. that if a witness have a full knowledge and a long experience on the subject about which he speaks, and testifies explicitly to the antiquity, duration, and universality of the usage, and is uncontradicted, the usage cannot be regarded by the jury as established. On the contrary, the authorities are that in such a case it may be. Cooper v. Chitty, 1 Sm. L. Cas., 382, 7th ed; Vail v. Rice, 5 N. Y., 156; Marston v. Bk. Mobile, 10 Ala., 284; Partridge v. Forsyth, 29 Ala., 200. Judgment affirmed. Cited-103 U. S., 162; 109 U. S., 283; 5 Sawy., 434: 14 Am. Rep., 223 (55 N. Y., 208). |