any of the specifications. The payment of this insurance cannot, in any point of view, be deemed a fraudulent preference. 9. The 13th, 14th, and 15th specifications relate to expenditures incurred by the bankrupt from May 22d 1867, embracing a period of thirteen months. lows:-Paid to Miscellaneous Tradesmen Grocer Total 1866 to June 22d They were as fol $3759 41 1159 23 $5610 13 With regard to the amount paid to miscellaneous tradesmen, the specification does not charge, nor is there any evidence to show how much of this was paid prior to the 2d of March, the date of the Bankrupt Act, and how much was paid afterwards. It is true, that the bankrupt on his examination before the Register says, that his probable expenditures during this period of thirteen months was $655 per month; but this result was arrived at by adding together the whole amount of payments made during this period, and dividing it by the number of months embraced in it. Whether his monthly expenditures were the same after the passage of the Bankrupt Act as they were before, nowhere appears. They may have been very much reduced. The evidence is entirely silent upon this point. I presume it will not be contended that a man had not a right after the passage of the Bankrupt Act to spend money for his necessary family expenses, notwithstanding he contemplated availing himself of its provisions; and how is it possible for me to say, in the absence of all evidence upon the subject, how much of this sum of $3759.41 was paid after the 2d of March 1867, and whether it was or was not for necessary expenses? The same remarks apply to the grocer's and the butcher's bills. They both cover a period of about thirteen months, extending from May 1866 to June 1867, and it is not alleged in the specifications, nor is there evidence to show how much of them were paid before the passage of the Bankrupt Act, and how much afterwards. Mr. Harden, the grocer, in his testimony before the court, states that no wines were purchased, but only ordinary groceries, and that they were paid for each week by Mr. Rosenfeld. He also swears that the quantity of groceries purchased of him by Mr. Rosenfeld, after his failure was from $20 to $40 per week less than it had been before. 10. The 16th specification is, that on the 28th of May 1867, the bankrupt, knowing himself to be insolvent and in contemplation of bankruptcy, received from his uncle the balance of the purchase-money for the house in Orange, and appropriated it in part to the payment of preferred creditors, in part to the premium on his life insurance of $641, and in part to extravagant living. Now, it will at once be perceived, that this specification is nothing more than a recapitulation of the several charges contained in the other specifications. The only difference between them is, that there they are presented separately, while here they are grouped together. But inasmuch as these charges, when made separately, have all been considered and disposed of, it will hardly be thought necessary to spend time in the examination of them, when they are thus combined. I have thus gone over all the specifications relied upon as grounds upon which to oppose the bankrupt's discharge; I have carefully examined all the evidence in connection with them; I have read attentively and duly weighed the elaborate, and I may add, the very able arguments submitted to me by the counsel on both sides, and the conclusion to which I have come is, that the opposing creditors have not succeeded in making out a case, either of "fraudulent preference, or fraudulent payment, gift, transfer, conveyance, or assignment," by the bankrupt of any part of his property, within the meaning of the 29th section of the act. The only charge upon which, if distinctly presented, I might have felt some doubt and hesitation, is that which relates to the style of living in which the bankrupt indulged, and the kind of establishment which he kept up after the passage of the Bankrupt Act. and after he had determined to apply for the benefit of it. The counsel of the creditors have, in their argument, returned to this subject again and again, and made many just and striking observations in relation to it, and I confess that the impression made upon my mind is, that the family expenses of the bankrupt during the period in question were unnecessarily large-larger than ought to have been incurred by one in his circumstances. But it is only an impression, and a somewhat vague one too, for the evidence furnishes us no means of knowing what these ex penses really were. But were it more clear and distinct, I should be unwilling to refuse a discharge to the bankrupt upon any ground not expressly set forth in the specifications. In no one of the specifications filed is this charge distinctly presented. The burden of all the specifications is fraudulent preferences or payments. Nowhere is it alleged that the family expenses paid by the bankrupt after the 2d of March 1867 were not necessary expenses. The only specification in which the subject of extravagant living" is at all alluded to, is the 16th, which is, as I have said before, a mere recapitulation of former specifications, and evidently not intended to introduce any new charge. 66 Then, too, we must take into consideration the fact to which I have before adverted, that as late as May 1867 the bankrupt had reason to expect that an arrangement would be made with his creditors, and that it would not be necessary for him to apply for the benefit of the Bankrupt Act. Mr. Maclay expressly says, that up to that time he had been endeavoring to arrange the gold debts of Mr. Rosenfeld, and believed that he would be successful in his efforts to do so. This, perhaps, might, to some extent, have justified the bankrupt in keeping up his establishment, and continuing to live in a way which, under other circumstances, would not have been proper. On the whole, I am of the opinion that the bankrupt is entitled to his discharge. LEGAL NOTES. SERVICE OF CIVIL PROCESS. PRIVILEGE OF MEMBERS OF CONGRESS. The case of Charles W. Wooley v. Benjamin F. Butler, in the Superior Court of Baltimore, was an action for an alleged false imprisonment. The defendant, a Representative from Massachusetts, while passing through the city of Baltimore on his return home from a session of Congress, was served with a writ of summons. At the September Term 1868, defendant moved to quash the writ on the ground that the service was in violation of his privilege as a member of Congress. The case was argued at great length by Hon. Caleb Cushing and William Schley, Esq., for General Butler, and Hon. R. T. Merrick, R. J. Brent and W. M. Addison, Esqs., for plaintiff. For the motion it was argued that the word "arrest," in the Constitution (art. I., sect. 6), includes all civil process, and that by the analogies of the privilege of jurors, witnesses, attorneys, &c., this was the exemption to which the privilege extended. The court, however, DOBBIN, J., was of opinion. that the word "arrest," in the Constitution was used in its ordinary sense, and as the summons in this case involved neither personal detention in the first instance nor liability to attachment for disregarding it subsequently, the motion to quash was refused. In Thomas C. Hoppin v. Thomas A. Jenckes, in the Supreme Court of Rhode Island (February 1868, not yet reported), another question arose on the same subject of privilege. That was an action against defendant as endorser of certain notes, and he filed a plea in abatement setting forth that he was a member of Congress, that Congress had adjourned on the 20th of July, that the writ was served on August 23d, and that he was then engaged as a member of a committee of Congress authorized to sit during the adjournment. There was no question as to the arrest, but it was claimed that the privilege lasted forty days after the session, in analogy to the privilege of members of Parliament. The court, however, BRADLEY, C. J., decided, on a very elaborate and careful review of the authorities, both English and American, that it lasted only a reasonable or convenient time. What is especially to be commended in the opinion is the very thorough historical method of examining and construing the clause in the Constitution; a method, we may venture to say, treated rather too cavalierly in the opinion of the Baltimore court. A paragraph in C. J. BRADLEY'S opinion expresses our idea so well that we give it in his own words :— "We have discussed, it may seem, at unnecessary length, the question presented by this plea; but it called for a consideration of the law of England as to the duration of the privilege from arrest of a member of Parliament, and also the consideration of a clause of the Constitution of our country adopted from the parliamentary law of England. It is not enough in such cases to be content with what may be termed a common sense interpretation or with a mere dissent from the opinions expressed or implied of such high authority as has been quoted to us. A court must satisfy itself by deeper and more thorough inquiries whether the obvious interpretation, or the one suggested by such learned minds, is the true one." The USURY BY NATIONAL BANKS.-In the case of Malone, Ex'r. of Fall, v. The Heirs and Creditors of Fall, Chancellor SHACKELFORD, of the Middle District of Tennessee, held that a national bank taking usurious interest on a loan, forfeits the entire debt, principal and interest. National Bank Act (Act of June 3d 1864, § 30, Brightly's Dig. vol. 2, p. 58) enacts that banks may take such interest as is allowed by the law of the state in which the bank is situated, or in default of any provision in the state law, 7 per cent. may be taken. The section then continues: "And the knowingly taking, receiving, reserving, or charging a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon." It appears by the opinion that the law of Tennessee merely forfeits in such case the excess of interest over 6 per cent. The decision, therefore, cannot rest either on the Act of Congress or any effect of the state law of Tennessee, but is based on the argument that the Act of Congress having prescribed a penalty has made the contract itself unlawful, and therefore utterly void, so that the courts can not give effect to any part of it. The Chancellor says: "Upon a review of the authorities, I am satisfied that the loan of the money by the Third National Bank was in direct violation of the act creating the bank, and that the contract is void, and that the bank is not entitled to recover the principal and legal interest. The object and purpose of the law was to prevent the taking of usurious interest, and it is the duty of the courts to enforce it." The fact that Congress has prescribed a penalty for the act complained of, viz., forfeiture of all interest, and that the effect of the decision is to judicially enlarge the prescribed penalty, does not seem to have been urged upon the court. NATIONAL BANKS.-TAXATION OF SHARES.-The Supreme Court of Missouri, in the case of Lionberger v. Rouse (October 1868), decides that the shares of stockholders in national banks are taxable under the state law of Missouri of February 4th 1854. The mode of taxing the shares being substantially that prescribed by the Act of Congress, the fact that the Missouri statute was passed before the Act of Congress is unimportant. A more doubtful question, however, was whether the law made any discrimination against the national banks in the rate of tax. By section 41 of the Act of Congress of June 3d 1864 the state may tax shares in national banks, provided the tax "shall not exceed the rate imposed upon the shares in any of the banks organized under authority of the state," &c. By statute of Missouri the state banks, prior to the establishment of the national banks, were subject to a certain rate of tax upon the capital stock paid in, which rate could not be increased. This rate was less than the tax now in question assessed upon the national bank shares. In 1863 the Missouri legislature passed an act allowing the state banks to surrender their charters and reorganize under the National Bank Act. All the banks availed themselves of this privilege but two, which still continue under the state law of 1857. The question was whether the taxation of these two banks at a lower rate on the capital paid in than the rate levied on shares of national banks was a discrimination against the latter, within the prohibition of the Act of Congress. The court held that it was not. "But it is further said, and it is unquestionably the strong argument on this branch of the case, that the tax cannot be sustained, because it is higher than the rate paid by the two state banks (the Exchange and the Mechanics'), existing under the Act of 1857. And to enforce this view, it is contended that they are the only banks in the state within the proper and legal meaning of the term. This is predicated on the hypothesis that an institution is not strictly a bank without it issues or circulates currency. This, I think, is a mistake. In commercial law a bank is regarded as simply a place for the deposit of money. It is an institution, though generally incorporated, yet it need not be, which is authorized to receive deposits of money, to lend money, and when empowered by charter, to issue notes. It may perform one or all of these functions. Banks may be, and are organized under the authority of the state without any power to issue notes of circulation. "The proviso in the 41st section of the National Banking Act, imposing a limitation on the power of the states, declares that the tax upon the shares of the associations shall not exceed the rate imposed upon |