of the statements of an individual of whom he is totally ignorant, than the tribunal which sees his manner, hears and compares his testimony with the other evidence adduced, and after this comparison, still believes.

But to this as to every other rule of law exceptions exist— exceptions, which, if correct, show the impropriety of the general rule, and which, if incorrect, should be repealed. Accomplices are every day admitted, and yet the anticipated evils do not occur. In this case proof of present depravity, the fact alone worthy of regard, (for past is adduced only to prove present depravity) is more clear and decisive than in any other case. Persons formerly convicted may have changed their character, or the conviction may have been erroneous; but in this case the guilt is recent and the proof conclusive. So far, therefore, as present depravity is regarded, the accomplice is less admissible than the convict. Policy' and necessity are the reasons given for the admission of this testimony, as otherwise the greatest crimes might escape unpunished. But if guilt be a ground of exclusion, and if the testimony of persons of such character is too doubtful and suspicious to be introduced in civil cases, much more should policy and necessity reject such evidence in criminal cases, when reputation and even life itself are at hazard. Infamy or interest either excludes testimony, says the judge, and as proof of this truth, up steps on the stand the accomplice confessing his guilt — the traitorous accomplice, who swears 'under an implied promise of pardon;' who 'has an equitable title to recommendation for the king's mercy,' and who to the unlearned in the law would seem excluded on the double ground of infamy and interest. The taint on the character, the moral guilt of the individual, the doubt and suspicion attached to the statements of him, who is condemned out of his own mouth, are equally great as if the guilt were proved by the production of a record. If there be danger from the thief, whose recorded guilt is adduced against him, it is none the less because he voluntarily admits his guilt. The law, in a spirit of mercy, says, that it is better ten guilty men should escape than one innocent man suffer. How important, then, would seem the rejection of this testimony to the exclusionist? But in fact if any judgment.

1 Policy and necessity, says Phillips: Policy, and perhaps necessity, says Starkie. 2 Starkie, 19; 1 Phil. Ev. 31.

can be formed from the experience of centuries, no evil results from this rule, or if occasional evil, it is more than balanced by its benefits.

There is still another exception. The convict, if a party to a suit, may make an affidavit in his own defence, but not as complainant. Here under the very worst mode of testifying, when the evidence is given unquestioned, uninterrogated, his interests being involved, the convict is allowed to give his evidence under the additional disability of interest as if any conceivable danger attached to such testimony, were not more than double under these circumstances. Yet his affidavit is admitted; and why? Because otherwise he would be without remedy;" - a good reason undoubtedly, indeed the only reason, why testimony is ever given; but equally applicable to the case, when, without such testimony, others would be without remedy,' in which case the evidence would be given under infinitely less objectionable circumstances.

The witness, too, whose character for want of truth is notorious, is admitted, and this want of truth is urged as an argument against his credibility. In this case a witness with a proved want of truth, is admitted, while in the exclusion of the convicted, a supposed want of truth excludes.

But this exclusion is said to be a part of the punishment attached to the offence. As a punishment on the guilty this is nugatory as if an individual, when other motives would not restrain, would be influenced by the fear of not being permitted to give testimony when the rights of others were concerned. The real punishment falls not on the guilty, but on the innocent, on him whose misfortune it is to need such testimony, and whose rights are impaired by its rejection.

Objectionable as is the rule, the modes of restoring competency,' the sovereign remedies by which all danger is removed, and the mouth of the witness opened, can scarcely be mentioned without a smile. To pass by the sham process of confessing errors in the record,' or the mystic virtues of burning in the hand, as modes of expelling mendacity, a remark or too may be made with regard to the case of pardons, whether by statute or under the great seal, the most effectual modes of restoring competency,'' and which are the only modes in vogue with us.

The others, though possessing no ordinary virtue, have been little tried here. It would hardly be supposed that a witness would be more trustworthy the moment before, than the moment after pardon and indeed it seems (1 Phillips's Ev. 29) that some have thought that a pardon could only remove the incompetency and not the blemish.' But such absurd notions have given place to more reasonable ideas; it being now clear that a pardon, whether under the great scal, or by act of parliament, 'makes the witness a new creature, and gives him a new capacity.' If such be the virtues of the great seal, or of parchment, (and if such are not the effects, it will be difficult to tell what they are) it seems unfortunate that they are not oftener tried to the utter removal of all falsehood. However, as a sure, though a quack remedy to an imaginary disease, it is not without its use.'

In the preceding remarks, the case of the accomplice was considered an exception to the rule; although one in reality, yet technically considered it is not, as neither the crime, nor the punishment, nor the conviction, but the 'judgment alone, creates the disability;' but even then, only in the state where the judgment was passed. To most it would seem that guilt (when proved) should render infamous; that if there be danger arising from the evidence sufficient to warrant its rejection, the rule should be coextensive and commensurate with the danger; while the criminality or the infamy arising from this criminality, be proved by the admissions of the party or by record, whether the deed be committed within the jurisdiction of one state or another. One thing is clear, namely, that the rule or the exceptions should be abolished.

1 But even this remedy is not wholly free from evil. A pardon is frequently granted to a criminal; his punishment remitted, to procure his evidence against some other. His punishment was right or wrong. If wrong, he should on other grounds have been pardoned. If right, he escapes deserved punishment, that thus a chance may be had to punish some worse criminal. A certain evil done; the remission of deserved punishment, that good may come, and that good uncertain. It would obviously be better that neither should escape. The witness would be just as likely to tell the truth without, as with a pardon. The pardon, except as far as by rendering the witness a new creature, it alters his character in some miraculous manner, is, in respect to his credibility, mere mummery.

2 In the case Com. v. Green, 17 Mass. 517, it is decided, that a conviction in another state does not render the witness incompetent. In Maryland the decisions are the other way.

DIGEST OF RECENT DECISIONS.

WENDELL'S REPORTS of Cases in the Supreme Court and Court for the Trial of Impeachments and Correction of Errors in the State of New York. The principal cases in Vols. II. III. and IV.

ABANDONMENT. See INSURANCE, 24-29, 34.
ABATEMENT.

1. Where an issue of fact on a plea in abatement is found against the defendant, the judgment is final, and not a respondeas ouster. Height v. Holley, 3 Wend. 258.

2. The pendency of two suits for the same cause of action cannot be pleaded in abatement of each other, unless commenced at the same time.

lb.

ACCESSARY. See Murder.

ACCORD AND SATISFACTION.

The acceptance in full satisfaction by a creditor of the note of a third person for the whole amount due on a previous note given by his debtor, is an extinguishment of the original consideration; and such acceptance may be plead in bar to a recovery on the original note. Booth v. Smith, 3 Wend. 66. ACTION.

1. An action will not lie against an officer of the army, on his promise to pay a reward offered for the apprehending a deserter, he acting in his official capacity, and as an agent of the government. Belknap v. Reinhart, 2 Wend. 375.

2. Where a feme covert has a separate estate vested in a trustee, and services are rendered on the estate, and credit for such services is given to her, the husband is not liable to an action for such services. Stammers v. Macomb, 2 Wend. 454.

3. On a promise to take the assignment of a judgment when obtained, and pay the amount thereof, an action will not lie until after a tender of such assignment. Payne v. Lansing, 2 Wend. 525.

4. The rendition of the judgment alone in such case gives no cause of action; and where the defect appears in the declaration, it may be taken advantage of by general demurrer. lb.

5. An action for a false return will not lie against a sheriff for returning an execution nulla bona, where the property of a firm is levied on by virtue of an execution against one of its members, and previous to a sale, an execution against the firm comes to the hands of the sheriff, under which the property levied on by virtue of the first execution is sold and exhausted. Dunham v. Mur

dock, 2 Wend. 553. 6. A parol enlargement of the time set in a sealed instrument for the performance of covenants is good; but where there is such enlargement of a condition precedent, the party loses his remedy upon the covenant itself, and must seek it upon the agreement enlarging the time of performance. Langworthy v. Smith, 2 Wend. 587.

7. Debt and not assumpsit is the proper form of action for the recovery of money from a stake holder of a bet on a trotting match. McKeon v. Caherty, 3 Wend. 494.

8. The action may be maintained, although the plaintiff in fact acted as the agent of others in making the bet. Ib.

9. The proceeds of real estate placed by a father under the control of a son for the benefit and support of a daughter who is a feme covert, cannot be recovered in an action at law in the name of the husband and wife; the remedy is in equity. Duval v. Covenhoven, 4 Wend. 561.

See PARTIES; COMMON CARRIER, 9; ASSUMPSIT, 22, 23; ACTION ON THE CASE, 16; INSURANCE, 33; TROVER, 2, 3; SURETY, 2. ACTION ON THE CASE.

1. An action on the case will lie for the assertion of a falsehood with a fraudulent intent as to a present or existing fact, where a direct, positive, and material injury results from such assertion. Benton v. Pratt, 2 Wend. 385.

2. Where a contract would have been fulfilled but for the false and fraudulent representation of a third person, an action will lie against such person, although the contract could not have been enforced by action. Ib.

3. The owner of a vessel navigating a river, having it in his power to avoid collision with another vessel, and thus avoid an injury, refusing or neglecting to exercise the power he possesses, is guilty of negligence, and liable to respond in an action on the case, although the vessel damaged has the wind, if the owner of such latter vessel does all in his power to avoid collision. Hawkins v. Dutchess and Orange Steam Boat Co. 2 Wend. 452. 4. A father, liable to a third person for the expenses of the lyingin of a daughter, who has been seduced within the age of 21,