those made in the case for which he was tried were not. The transaction formed no part of a single scheme or plan, any more than the various robberies of a thief. They were entered upon as from time to time he might succeed in entrapping credulous or unwary persons. Even if they were transactions of the same general character, they differed in all their details; and the defendant was compelled to defend himself against three distinct charges in addition to the one for which alone he was indicted. Evidence of the commission of other crimes by a defendant may deeply prejudice him with a jury, while it does not legally bear upon his case. It certainly would not be competent, in order to show the intent with which one entered a house, or took an article of personal property, to prove that he had committed a burglary or larceny at another time." He further said, in the same case: "The objections to the admission of evidence as to other transactions, whether amounting to indictable crimes or not, are very apparent. Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it, and by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him." I think the remarks are very pertinent in this case. The reasoning herein leads to the exclusion of evidence as to past offenses, such as Pottle's evidence tends to prove, whether it is directed toward proving the bribery of clerks to committees or members of the Legislature of 1883 or 1884.

Upon the same basis, it is difficult to see the materiality or admissibility of the evidence that the prisoner, after the passage of the act of 1884, paid to Phelps the $50,000 as testified to by Phelps. The evi. dence, it can be seen, had a tendency to greatly prejudice the prisoner upon the issue of his guilt of bribing Fullgraff, while wholly inadmissible for any such purpose; and it would seem to be quite questionable to admit it for the purpose of proving an interest in a Broadway railroad, about which there could be and was no dispute or contradiction. We call attention to the question without absolutely deciding it.

We are quite clear that errors have been committed by the admission of evidence, in this case, at war with the well-settled law on the subject. That law must protect all who come within its sphere, whether the person who invokes its protection seems to be sorely pressed by the weight of the inculpatory evidence in the case or not. It cannot alter for the purpose of securing the conviction of one who may be called or regarded as a great criminal, and yet be invoked for the purpose of sheltering an innocent man. In the eye of the law, all are innocent until convicted in accordance with the forms of law, and by a close adherence to its rules.

For the reasons above given, as well as upon all the grounds so well stated in the learned opinion of my brother Danforth, I am in favor of reversing this conviction, and granting a new trial.

York act of 1882, chap. 287, entitled "An act to amend chapter 229 of the Laws of 1879, entitled 'An act in reference to the collection of taxes,"" in certain counties, and making, under certain circumstances, the conveyances of the comptroller and treasurer of the lands in the said counties conclusive euidence of title, is not in violation of Const. N. Y., art. 3, § 16, which provides that "no local bill shall embrace more than one subject, and that shall be embraced in its title," nor in violation of Const. N. Y., art. 1, § 6, which provides that no person shall be deprived of life, liberty, property without due process of law. (2) Laws N. Y., 1835, chap. 154, § 1, providing that "the real property of non-resident owners, improved or occupied by a servant or agent, shall be subject to assessment of highway labor, and at the same rate as real property of resident owners," does not exempt from such tax nonresident lands not so occupied, nor does it repeal 19, pt. 1, tit. 1, chap. 16, art. 2, which made all nonresident lands pierced by or adjacent to a road, assessable for highway labor. (3) Act N. Y., April 10, 1850, repealed Rev. St., pt. 1, tit. 3, chap. 13, arts. 2, 3, relating to the assessment and collection of taxes, but with the proviso that such repeal should not affect any tax levied or assessed prior to the year 1849, nor any proceeding for the collection thereof by a sale of the lands taxed, or otherwise," and changed the proceedings for the collection of non-resident taxes by taking from the comptroller the authority to make the sale, and giving it to the treasurer. Held, that a sale made by the treasurer in 1852, pursuant to the act of 1850, for taxes levied in 1849, but returned to the comptroller before April 10, 1850, was valid. (4) In an action of ejectment, plaintiff contested defendant's title, which was acquired at a tax sale in 1852, for the reason (1) that the assessors did not sign the judgmentroll as required by statute, though they did sign the certificate attached thereto; (2) that in that part of the certificate which relates to the mode of valuation the words "solvent creditor" appeared, instead of "solvent debtor;" (3) that the assessment was not verified at the proper time; (4) that the treasurer's notice of the tax sale was not delivered to the printer until after the time provided by law, though otherwise sufficient. Held, that these defects were not jurisdictional, and were cured by Act N. Y., 1882, chap. 287, which provides that when fifteen years have elapsed since such sale of unoccupied and unimproved lands, belonging to non-resident, the sale and all proceedings shall be deemed to have been regular. (5) Rev. Stat. N. Y., pt. 1, tit. 2, chap. 13, art. 3, § 33, provides that the county board shall set down in the assessment-roll, opposite the valuations of real and personal estate, "the respective sums in dollars and cents, to be paid as tax thereon." Held, that a tax set down in the proper column, but without the dollar-sign, was not for that reason invalid. (6) Rev. Stat. N. Y., do not require that the date of the commissioner's warrant or the number of the road-district shall appear upon the assessment roll, to make a highway tax valid. Nov. 29, 1887. Ensign v. Barse. Opinion by Finch, J.

CONTRACT

REFUSAL TO PERFORM -DEMAND.Plaintiff and defendant entered into a contract by which defendant was to furnish plaintiff certain machines, and in default pay a sum of money. The contract provided that if defendant failed to deliver the machines within thirty days after demand by plaintiff, then the money should be due. A short time after making the contract, defendant refused to manufacfacture and deliver the machines. Held, that the refusal by the defendant being absolute, the plaintiff was relieved of the obligation to make demand for the machines, and the money became due at once. Shaw

v. Insurance Co., 69 N. Y. 286. Nov. 29, 1887. Robinson v. Frank. Opinion per Curiam.

-

CORPORATIONS DISSOLUTION - APPOINTMENT OF RECEIVER - ACTION BY CORPORATION.- In an action on a promissory note brought in the name of a foreign corporation, the plaintiff proved the appointment of the receiver, and then introduced in evidence the statute of the foreign State authorizing the appointment of a receiver on the dissolution of a corporation. Held, that the effect of the evidence was to show that the corporation was dissolved, and therefore was not the real party in interest, and the action was properly dismissed. Nov. 29, 1887. Merchants' Loan & Trust Co. v. Clair. Opinion per Curiam.

MASTER AND SERVANT — NEGLIGENCE — DEFECTIVE APPLIANCES -LUMBER CARS. (1) The stakes of a lumber car are constitutent parts of a car, within the meaning of Acts N. Y., 1850, chap. 140, which requires railroad companies to carry lumber, and provide special cars for that purpose; and if the company allows the shipper to supply the car with defective stakes, it is liable for injuries caused to a brakeman by their breaking. (2) In an action for damages sustained by plaintiff by reason of the unsound condition of a stake on a lumber car, defendant claimed that as the system under which states were furnished by the shipper was known to plaintiff, he took the risks and consequences of such system. Held, that the evidence showed no system, but that if the company delegated duties which it should have performed to the shipper, it is equally responsible for his negligence (3) The defendant contended, that even if the stake by the breaking of which plaintiff was thrown off a lumber car and injured, was within the rule requiring the master to exercise reasonable care in providing safe appliances, it was still not liable, as the negligence was that of the shipper or plaintiff's co-employees in loading the car. Held, that as the load might have been removed without remedying the defect, the defect was in the car, and defendant was liable. (4) The evidence showed that a stake used was of very poor white brash wood, partly decayed, and that defendant had been negligent in providing no rules requiring inspection of such stakes and loads, and that there was but casual inspection by the station agent. Plaintiff was nonsuited. Held, error. Nov. 29, 1887.

Bushby v. New York, L. E. & W. R. Co. Opinion by Danforth, J.

STATUTE OF LIMITATIONS— ACKNOWLEDGMENT IN WRITING-ORDER-LIABILITY PAYMENT OUT OF FUND. (1) Code N. Y., § 395, provides that an acknowledgment in writing, sigued by the party to be charged, shall be necessary to take a case out of the operation of the statute of limitations. Defendant, being indebted to plaintiffs, gave them orders on a third party for the amount of the debt. Held, that the orders were such an acknowledgment of the debt as would continue it six years from their date. When one delivers to another an order on a third person to pay a specified sum of money to the person to whom the order is given, the natural import of the transaction is that the drawee is indebted to the drawer in the sum mentioned in the order, and that it was given to the payee as a means of paying, or securing the payment of his debt. In others words, it implies the relation of debtor and creditor between the parties to the extent of the sum specified in the order, and a willingness on the part of the debtor to pay the debt. The transaction may be consistent with a different relation and another purpose, but in the absence of explanation, that is its natural and ordinary meaning. See Bogert v. Morse, 1 N. Y. 377. The decisions as to what is a sufficient acknowledgment of a debt to take

it out of the statute are very numerous, and not altogether harmonious. It seems to be the general doctrine that the writing, in order to constitute an acknowledgment, must recognize an existing debt, and that it should contain nothing inconsistent with an intention on the part of the debtor to pay it. But oral evidence may be resorted to, as in other cases of written instruments, in aid of the interpretation. Consistently with this rule, it has been held that oral evidence is admissible to identify the debt and its amount, or to fix the date of the writing relied upon as an acknowledgment, when these circumstances are omitted (Kincaid v. Archibald, 73 N. Y. 189; Lech, mere v. Fletcher, 3 Tyrw. 450; Bird v. Gammon, 3 Bing. N. C. 883), or to explain ambiguities (1 Smith Lead. Cas. 960, aud cases cited). (2) Defendant, being indebted to plaintiffs, gave them written orders on a third party for the amount of the debt, but abandoning the contract with the third party, the orders were not paid. Held, that the orders were not conditional, in the sense that the debt was to be paid only out of the funds in the hands of the drawee, and upon his failure to pay, the defendant was liable under his general obligation. Winchell v. Hicks, 18 N. Y. 558; Smith v. Ryan, 66 id. 352. Nov. 29, 1887. Manchester v. Braender. Opinion by Andrews, J. ΤΑΧΑΤΙΟΝ CORPORATIONS CAPITAL STOCK VALUATION OF - REVIEW OF ASSESSMENT.- (1) The manner of ascertaining the value of the capital stock of a corporation, for the purposes of assessment, is left to the judgment of the assessors, who may resort to all usual tests; and when the commissioner took the book value as the actual value of the stock, their assessment will be upheld, although they appeared to have erred in their judgment. (2) By virtue of Laws N. Y., 1880, chap. 269, entitled "An act to provide for the review and correction of illegal, erroneous and unequal assessment,' an assessment is subject to review in the Supreme Court of that State, if it is found to be "illegal, erroneous, or unequal," and when an assessment violates no absolute rule of law, it is subject to no review except as prescribed by law, and the Court of Appeals has no power to interfere. Dec. 13, 1887. People, ex rel. Knickerbocker Fire Ins. Co., v. Coleman. Opinion by Earl J.

ANTICIPA

TRUSTS TO SECURE TIME PAYMENTS TION. A trustee, under a mortgage for the benefit of infants securing payments at times stated, has no authority to receive payment in anticipation of the time expressed in the mortgage; and where he executes a discharge before the trusts expressed could have been performed, it is of no effect as against the infants, and such mortgage being duly recorded, purchasers of the land for valuable consideration, after the mortgage had been discharged, are charged with notice of the terms of the trust set out in it. Field v. Schieffelin, 7 Johns. Ch. 150, and other similar cases cited by the appellant, apply only where a trustee or guardian has a power of disposition of the estate, and may exercise it in his discretion. This power Deming did not possess. The discharge was in contravention of the trust, and therefore in fraud of the beneficiaries for whom the trust was created. By its very terms, the mortgage was to be a security, not only for the payment of the money, but to remain such security for the payment of money at specific times during the plaintiff's minority. The defendants knew this, and knew also, that the time when the trustee was authorized to receive payment had not arrived. His power was limited by the terms of the mortgage, and his apparent authority was his real authority. He had no power to vary its terms, nor receive payment in anticipation of the times fixed by the mortgage. His declaration or certificate that he had been paid was

therefore of no avail, against the express provisions of the instrument by which his power was defined. In case of default on the part of the mortgagor in paying, the mortgagee might, as the appellant says, foreclose, for power to do so is expressly given by the mortgage; but whether the security for future payments would then be found in the decree, or otherwise, would depend on circumstances not pertinent to the present inquiry. Nov. 29, 1887. McPherson v. Rollins. Opinion by Danforth, J.

UNITED STATES SUPREME COURT ABSTRACT.

BANKS-NATIONAL-TRANSFER OF STOCK-LIABILITY OF ASSIGNOR.-On the sale of shares in a national bank the name of the assignee had not been inserted in the blank left for that purpose in the transfer book of the bank, and in consequence the assignors were compelled, in a suit brought by a receiver, to contribute, as owners of such shares, toward the liabilities of the bank. The assignors then brought suit in a Federal court against their assignee to recover the money so paid. Held, that the action was not within the jurisdiction of the Federal court, as it was not brought to enforce any liability existing under the National Banking Act, nor growing out of the banking law, which imposes no duty on an assignee of shares to register his ownership for the protection of his assignor. Dec. 5, 1887. Lessassier v. Kennedy. Opinion by Waite, C. J.

CARRIER-MISDELIVERY OF FREIGHT PRESENTATION OF BILL OF LADING.-Action against a railroad company by the assignee of freight receipts to recover for the misdelivery of live-stock to parties whom defendants had been directed to notify of the arrival of the property, but who presented no bill of lading or order of the consignee. It was not shown that plaintiff or the shipper had any knowledge that it had been the common practice of defendants to so deliver former shipments between the same parties. Held, that defendant was liable for the value of the stock. The duty of a common carrier is not merely to carry safely the goods intrusted to him, but also to deliver them to the party designated by the terms of the shipment, or to his order, at the place of destination. There are no conditions which would release him from his duty, except such as would also release him from the safe carriage of the goods. The undertaking of the carrier to transport goods necessarily includes the duty of delivering them. A railroad company, it is true, is not a carrier of live-stock with the same responsibilities which attend it as a carrier of goods. The nature of the property, the inherent difficulties of its safe transportation, and the necessity of furnishing to the animals food and water, light and air, and protecting them from injuring each other, impose duties in many respects widely different from those devolving upon a mere carrier or goods. The most scrupulous care in the performance of his duties will not always secure the carrier from loss. But notwithstanding this difference in duties and responsibilities, the railroad company, when it undertakes generally to carry such freight, becomes subject, under similar conditious, to the same obligations, so far as the delivery of the animals which are safely transported is concerned, as in the case of goods. They are to be delivered at the place of designation to the party designated to receive them, if he presents himself, or can with reasonable efforts be found, or to his order. No obligation of the carrier, whether the freight consists of goods or of live-stock, is more strictly enforced. Forbes v. Boston & L. Co., 133 Mass. 154; McEntee v. Steam

boat Co., 45 N. Y. 34. If the consignee is absent from the place of destination, or cannot after reasonable inquiries be found, and no one appears to represent him, the carrier may place the goods in a warehouse or store with a responsible person to be kept on account of and at the expense of the owner. He cannot release himself from responsibility by abandoning the goods or turning them over to one not entitled to receive them. Fish v. Newton, 1 Denio, 45. If the freight consist, as in this case, of live-stock, the carrier will not, under the circumstances mentionedthat is, when the consignee is absent, or cannot after reasonable inquiries be found, and no one appears to represent him-relieve himself from responsibility by turning the animals loose. He must place them in some suitable quarters where they can be properly fed and sheltered, under the charge of a competent person as his agent, or for account and at the expense of the owner. Turning them loose without a keeper, or delivering them to one not entitled to received them, would equally constitute a breach of duty for which he could be held accountable. These principles are firmly established by the adjudged cases, and rest upon obvious grounds of justice. Ang. Carr., § 291The railroad company, defendant below, should therefore have given necessary instruction to the droveyard company, which was its agent for the custody and care of the cattle, respecting their delivery-that it should be made only upon the order of the consignee, who was also the owner and shipper. The joint way-bills given by the two companies at Waverly, equally with the original receipts given at Chicago, disclosed the name. Those joint way-bills were for the guidance of, and were used by, the conductors of both companies. The Thames, 14 Wall. 98. The direction on the receipts given at Chicago, and on the way-bills of the first shipment from Waverly, to "notify J. & W. Blaker," in no respect qualified the duty of the carrier to deliver the animals to the order of the consignee. If they were consignees, the direction to notify them would be entirely unnecessary, because the duty of the carrier is to notify the consignee on the arrival of goods at their place of destination. Furman v. Railway Co., 106 N. Y. 579; Bank v. Bissell, 72 id. 615. It is true that the original receipts only bound the Michigan Central Railroad Company to carry safely the animals on its own road, and deliver them safely to the next connecting line. Myrick v. Railroad Co., 107 U. S. 102. But the last carrier in the connecting lines was bound to deliver the animals at the place of destination, and to the consignee there, or to his order, if they were made known to it on receiving the freight from the preceding connecting company. In this case there is no question that the company had such knowledge when the cattle were received. The destination and the name of the consignee appear upon the way-bills given at Waverly. There were only two places at which the cattle were, on their way from Chicago, reshipped-that is, taken from the cars, and after a short interval of rest replaced. Waverly was one of these places, and when they were reshipped there these way-bills. with a designation of the destination and consignee of the cattle, were made out. The indorsement by Myrick to the plaintiff, the Commercial National Bank of Chicago, of the receipts, taken on the shipment of the cattle, transferred their title, and gave to the bank the right to their possession, and if necessary to sell them for the payment of the drafts. The fact that the railroad company at Philadelphia had been in the habit of delivering cattle transported by it to the Blakers through the drove-yard company, without requiring the production of any bill of lading or receipt of the carrier given to the shipper, or any authority of the shipper, in no respect relieves the company