changed his mind and conduct, and honestly endeav ored to escape from it, but could not without striking the mortal blow. But in the absence of such circumstances, when the defendant seeks and brings upon himself a difficulty with the deceased, in which he wil lingly continues until he involves himself in the necessity to kill, the law will not hold him guiltless. The right of self-defense which justifies a homicide does not include the right of attack."-PEOPLE V. KENNETT, Cal., 45 Pac. Rep. 994. -- Larceny 15. CRIMINAL LAW Indictment.-Under section 2449, Rev. St., the penalty thereby prescribed follows the larceny of any of the domestic animals therein named, regardless of their value. In such cases, where the grade of the offense, or the penalty prescribed therefor, is not measured by or dependent upon the value of the property stolen, but is determined entirely by the class or species of such property, it is not necessary in an indictment charging its larceny, to allege any value; neither is it necessary to prove any value.-MIZELL V. STATE, Fla., 20 South. Rep. 769. 16. DESCENT AND DISTRIBUTION-Wife's Personalty. -Gen. St. 1866, p. 303, § 19, provides that the personalty of a married woman shall vest in the husband, in trust for the wife, and on the death of the husband shall vest in the wife if living, or, if she has deceased, in her devisees, legatees, or heirs at law, in the same manner as if she had always been a feme sole. Gen. St. § 2792, vests the property in the husband in trust, and provides that upon his decease the remainder of such trust property shall vest in the wife, if living; other wise as the wife, by will, may direct, or, in default of a will, in those entitled by law to her intestate estate: Held that, if the wife has deceased intestate, her personalty, on the subsequent death of her husband, vests in her administrator, who is entitled to the possession thereof.-CONNECTICUT TRUST AND SAFE DEPOSIT Co. V. SECURITY Co., Conn., 35 Atl. Rep. 342. 17. DOWER-Rights of Widow.-The widow, left in possession of land at the death of the husband, prior to the assignment of dower has no standing, by virtue of her dower right, to attack a decree rendered against the husband for possession of the land, on the ground that it was rendered after the death of the husband without revivor.-SMITH V. WHITSETT, Tenn., 36 S. W. Rep. 1049. 18. ESTATES-Liability of Life Tenant.-Where there is an estate for life, and a remainder in fee, and there exists an incumbrance, binding the whole estate on the land, and no special equity exists between the life tenant and the remainder-men, the former is bound to pay the interest accruing upon the incumbrance during the continuance of his estate.-IVORY V. KLEIN, N. J., 35 Atl. Rep. 346. 19. EVIDENCE-Admissions of Agent.-In an action to recover an organ, under a chattel mortgage to secure the price, defendant testified that plaintiffs' agent, who held the notes for collection, had testified on a former trial that an order previously given him by defendant's father had been accepted by him in full pay. ment of the notes: Held inadmissible, it being the admission of an agent after the act.-ESTEY V. BIRN. BAUM, S. Dak., 68 N. W. Rep. 290. 20. EVIDENCE - Municipal Corporations - Defective Sidewalks. In an action for personal injuries, where plaintiff had testified on cross-examination that after she was injured she went to her usual work at a factory, and did not find out for several days that her knee was fractured, it was error to permit her to state, as a reason for going to work so soon, that she had to meet the expenses of her mother's funeral, and was in debt, thereby bringing her poverty to the attention of the jury.-BURLESON V. VILLAGE OF READING, Mich., 68 N. W. Rep. 294. 21. FRAUDS, STATUTE OF-Specific Performance.-The statute of frauds is not satisfied in a case of specific performance by a letter that has been lost, where its contents are testified to by the receiver, and the letter does not contain a description of the land in dispute with reasonable certainty.-DARKE V. SMITH, Utah, 45 Pac. Rep. 1006. 22. GUARANTY-Construction — - Discharge.-Plaintiffs agreed to extend a line of credit to a watch company, of a certain amount, for a certain time, on condition that defendants go their security for that amount, with provision that the line of credit be reduced a certain amount each year by quarterly payments, to be distributed on notes as they fell due; agreed "to accept a note or notes of said company in payment of our statement rendered about the first of each month;" and agreed to renew and extend any or all notes that might fall due, provided the money owed by the company did not exceed the line of credit, or the amount to which it had then been reduced. Defendants' guaranty recited: "Having carefully read above contract, we guaranty to protect any bill the company may buy:" Held, that the guarantors' undertaking was that the bills should be actually paid, and their liability did not end with the mere giving of notes by the company, and was not necessarily discharged by a change of notes, either by renewal or extension of the company's notes, or by acceptance of notes of other makers.ROBBINS V. ROBINSON, Penn., 35 Atl. Rep. 337. 23. GUARANTY-Construction-Liability of Guarantor. -Where there is evidence tending to prove the ma terial facts necessary to entitle the plaintiff to recover, it is error for the court to sustain a demurrer to the evidence, and discharge the jury, and render judg ment for costs against the plaintiff.-DAVIS SEWINGMACH. Co. v. GIBBONS, Kan., 45 Pac. Rep. 946. - 24. INSURANCE - Against Liability for Damages.-A policy promising to pay all damages with which the insured may be legally charged, or required to pay, or for which it may be legally liable, is not a contract of indemnity alone, but also a contract to pay liabilities; and a discharge of such liabilities by the insured is not a necessary condition precedent to its recovery thereon, the measure of recovery being the amount of the accrued Hability.-AMERICAN EMPLOYERS' LIABIL ITY INS. Co. v. FORDYCE, Ark., 36 S. W. Rep. 1051. 25. INTEREST-Contract-Compound Interest.-A contract for interest at 10 per cent. per annum, provided the note is paid at maturity, but, if not then paid, in terest to be paid at 12 per cent. from date of note, is a proper contract for interest, the increase not being a penalty.-FINGER V. MCCAUGHEY, Cal., 45 Pac. Rep. 1004. 26. JUDGMENT-Damages-Accord and Satisfaction.Where the court has rendered an interlocutory judg. ment for plaintiff, and referred the assessment of damages to the clerk, the parties are limited to such assessment, and defendant cannot show accord and satisfaction.-SEAVER V. WILDER, Vt., 35 Atl. Rep. 351. 27. LIFE INSURANCE — Condition-Waiver.-A provision of a policy of life insurance that it should be void in case the insured was not in sound health at the time of its issuance is waived by a collection of premiums thereon after knowledge by an agent of the insurance company, having authority to cancel the pol. icy, that the holder was not in sound health when it was issued, notwithstanding a provision that no waiver could be made except in writing signed by the president and secretary.-HILT V. METROPOLITAN LIFE INS. CO., Mich., 68 N. W. Rep. 300. 28. LIFE INSURANCE-Proof of Death.-A life policy provided that, if any premium was not paid when due, the policy should cease, except as provided in Act Mass. April 10, 1861, "subject to which this contract is made." It also provided that no claim should exist under it unless notice and proof of death were given within two years from death of insured. Act Mass. April 10, 1861, provides that in case of failure to pay premiums the policy shall not be forfeited because thereof, but the net value of the policy at the time of the default shall be treated as a premium to uphold the policy so long as its amount will serve the purpose, "provided, however, that notice of the claim and proof of death shall be submitted to the company within ninety days after the decease:" Held, that the policy waived the 90-days provision of the statute, and allowed notice and proof of death within 2 years, even where there had been default in payment of premiums. -ELLIS V. MASSACHUSETTS MUT. LIFE INS. Co., Cal., 45 Pac. Rep. 988. 29. MARRIED WOMEN-Contracts Subscriptions.-A subscription by a married woman to a bouns to induce the location of a building in the neighborhood of her separate land, entered into in consideration of the benefits to her land to be derived from such a location of the building, is not binding on her, under How. Ann. St. § 6295, giving a married woman a right to contract, sell, transfer, mortgage, and convey her separate estate.-DETROIT CHAMBER OF COMMERCE V. GOOD. MAN, Mich., 68 N. W. Rep. 295. 30. MASTER AND SERVANT Contract of Hiring-Acquiescence in Termination.-Where a servant quit the employment of his master before the expiration of the term for which he had contracted, and the employer, with knowledge of such fact, stated that he would not pay him any more wages until the expiration of the term, such statement is equivalent to a promise to pay at that time, and is a waiver of the breach of the contract by the employee, which entitles him to recover the contract wages for the time he worked.-MERRILL v. FISH, Vt., 35 Atl. Rep. 368. 31. MASTER AND SERVANT-Contributory Negligence. -Where a person seeks employment in any line of business where there is danger, he assumes the risk and hazard ordinarily incident to such employment. By accepting the employment, he represents himself as competent to perform that kind of work, and that he will not be guilty of negligence in and about the performance of the same. He owes to his employer diligence and care in the execution of the undertaking; and, where he had been guilty of negligence contributing to his injury personally, he cannot recover for such injury.-MISSOURI, K. & T. RY. Co. v. YOUNG, Kan., 45 Pac. Rep. 963. 32. MASTER AND SERVANT-Negligence-Electricity.An electrical railway company, operating its cars by the overhead trolley system, is required to use every reasonable precaution, known to those possessed of the knowledge requisite for the safe treatment of electricity as a motive power, to provide against the danger of injuries to its employees.-MCADAM V. CENTRAL RAILWAY & ELECTRIC CO., Conn., 35 Atl. Rep. 341. 33. MUNICIPAL CORPORATION - Dedication Acceptance of Street.-While a formal acceptance of a prof fered dedication of a street is necessary before the duty is imposed on the public to repair and maintain it, such acceptance is not essential to consummate the dedication, so as to cut off the rights of the owner of the land.-MAYOR, ETC. OF BOROUGH OF BRIGANTINE V. HOLLAND TRUST CO., N. J., 35 Atl. Rep. 344. 34. MUNICIPAL CORPORATION - Ordinance - Removal of Dead Animals.-A city may by ordinance lawfully prescribe that unless the owner of a dead animal, even though the carcass may be of some value, shall remove it, or cause it to be removed, beyond the city limits, within a specified reasonable time, and to a specified reasonable distance, the municipal authorities may deal with such carcass as a nuisance per se, and as such take charge of it, and make such disposition thereof as will best conserve the public health.-SCHOEN V. CITY OF ATLANTA, Ga., 25 S. E. Rep. 380. 35. MUNICIPAL CORPORATIONS Powers-Street Railways. A municipality has not the authority to grant a street railway company exclusive rights in a street unless such authority is expressly granted by the leg. islature, or arises by implication so directly as to be equally clear.-DETROIT CITIZENS' ST. RY. Co. v. CITY OF DETROIT, Mich., 68 N. W. Rep. 304. 36. NEGLIGENCE- Defect in Steps to Private House.Where a board in the platform to the steps leading from a private house broke as one hired to take a trunk from the house was passing over it with the trunk, the owner of the house is not liable for negli. gence, if he exercised suoh care in and about keeping the platform in good condition as housekeepers of common prudence are accustomed to exercise; and the platform having been properly constructed, and one which would ordinarily wear many years without repair, and the defect being latent (dry rot on the un derside) and unknown to the owner, and no indication being given by the platform that it was unsafe, and the owner not having any knowledge or notice of any deficiency of ventilation under it, he cannot be held negligent for not having examined the platform for any such defect.-BADDELEY V. SHEA, Cal., 45 Pac. Rep. 990. 37. NEGLIGENCE-Electric Railway Companies-Duty to Guard Feed Wire.-Where, in the prosecution of its business, a corporation employs a wire which, because of its being charged with a powerful and dangerous current of electricity, is liable, upon coming in contact with the wires of other corporations, to cause injury or death to employees of the latter while engaged in the performance of their duties, the corporation first referred to is, relatively to such employees, under the duty of observing at least ordinary diligence, not only in preventing such a contact, but also in discovering and preventing its continuance, even when occasioned by the negligence of others, including that of a corporation whose employees are thus exposed to danger.ATLANTA CONSOL. ST. RY. Co. v. OWINGS, Ga., 25 S. E. Rep. 377. 38. NEGOTIABLE INSTRUMENT Bill of ExchangePayment by Check.-A bill of exchange drawn on defendant by C, payable to plaintiff, was presented by plaintiff's agent to defendant. Defendant's manager thereupon called on the agent, and gave its check for the amount, with direction that the draft, which was in the possession of the agent's clerk, then out of the office, should be marked "Paid," and be sent to it. It was so marked and sent that evening: Held, that the giving of the check constituted payment, and not a mere acceptance; so that defendant on learning of the insolvency of C before payment of the check, could not demand the return of the check in exchange for the draft.-EQUITABLE NAT. BANK V. GRIFFIN & SKEL LEY CO., Cal., 45 Pac. Rep. 985. 39. PARTNERSHIP-Evidence of Dissolution.-A chattel mortgage given on the personalty of a firm, to one who had been a member thereof, by the other members, is admissible in support of the contention of the mortgagee that the firm was dissolved by his selling out to the other members; such mortgage being given to secure payment of the purchase money.-ROWE V. SIMMONS, Cal., 45 Pac. Rep. 983. 40. PLEADING-Limitations-Demurrer.-A complaint resting on the fact that plaintiff was compelled to and did take up and pay notes which he had made for defendant's accommodation is not demurrable on the ground that the action is barred, the complaint not showing when plaintiff made the payments.-PLEAS ANT V. SAMUELS, Cal., 45 Pac. Rep. 998. 41. RAILROAD COMPANY-Boarding Moving Street Car -Negligence.-For one to attempt to board a street car, the speed of which has merely been slackened in response to his signal that he wished to get on, cannot, in the absence of exceptional circumstances, be declared negligence, as matter of law: and that though the attempt is to get on the front platform, especially where there is a rule of the road that persons smoking should ride thereon, and the person attempting to get on is smoking at the time.-FINKELDEY V. OMNIBUS CABLE CO., Cal., 45 Pac. Rep. 996. 42. REPLEVIN-Dismissal by Plaintiff.-A plaintiff in replevin, having appealed from justice court, cannot, by a dismissal of his appeal, deprive the defendant of his right to a finding of the value of the property and damages, for which he is entitled to judgment on the appeal bond.-STRAUSS V. SMITH, N. Mex., 45 Pac. Rep. 30. Central Law Journal. ST. LOUIS, MO., OCTOBER 16, 1896. The case of Bell v. Bell, recently decided by the Supreme Court of New York, though purely local in its application, will have considerable weight with courts of other States in the determination of the question as to the validity of foreign divorces. The action in that case was for divorce and it was held that no bar existed thereto, by reason of a prior adjudication in a court of Pennsylvania purporting to be one for divorce between the same parties, in which the present plaintiff was named as defendant. It was held that, the present plaintiff not having been served with process in Pennsylvania and not having appeared in the Pennsylvania action, and neither party having been a resident of Pennsylvania, but defendant having gone there for the sole purpose of bringing the former suit, the former judgment might be ignored, and, upon proper grounds, the marriage relation might be dissolved in New York. The opinion of the court collates many New York authorities on the subject. The decision of a judge of the Circuit Court of Illinois has excited considerable comment because of the holding, which is claimed to be novel, that a husband has a right to alimony and solicitors' fees. There is nothing unwarranted under the facts of that case in such a decision, though, naturally, there is little authority to be found for it. The great change in the law pertaining to modern domestic relations renders such a conclusion logical and tenable. As the court says, if the law which gives the wife alimony, support and attorneys' fees pending the determination of her suit for divorce in a case where she is without fault, "is good law in behalf of the wife, why not in behalf of the husband?" To use a trite old phrase "what is sauce for the goose is sauce for the gander." The London Solicitors Journal depreciates the increasing practice of citing American reports in the English courts, and has this to say on the subject, which applies with equal force to the now decreasing practice of citing English cases in the courts of this country. "The American reports have this month attained the dignity of a place in a head note of the law reports. The head note to Kennedy v. Trafford, 1896, 1 Ch. 763, says: 'Van Horne v. Fondu, 5 Johns. Ch. (N. Y.) 388, not followed.' A decision of Chancellor Kent is cited as authority to the English Court of Appeal, and is not followed. Why not? Because in spite of the great attainments, judgment and skill in the application of principles of Chancellor Kent, the English Court of Appeal did know how far the law of the State of New York and the law of EnAnd gland were alike in these matters. surely it is not their business to know. It is quite bad enough to cite foreign decisions arguendo and by way of analogy, unless the foreign law is proved as a fact; the citation is even then fairly useless. But the citation of such foreign decisions as authorities in an English court should be repressed with severity as both dangerous and misleading. On this point we cannot do better than recall the strong remark of Lord Halsbury and Cotton and Fry, L. JJ., In re Missouri Steamship Co., 42 Ch. Div. 321, 330. On counsel proceeding to read the judgment of the Supreme Court of the United States in the Montana case, Lord Halsbury, C., said: "We should treat with great respect the opinion of eminent American lawyers on points which arise before us, but the practice, which seems to be increasing, of quoting American decisions as authorities, in the same way as if they were decisions in our own courts, is wrong. Among other things, it involves an inquiry, which often is not an easy one, whether the law of America on the subject on which the point arises in the same as our own." Fry, L. J., said: "I also have been struck by the waste of time occasioned by the growing practice of citing American authorities." And Cotton, L. J., added: "I have often protested against the citation of American authorities." If the practice gets thoroughly established we shall soon have counsel contending that a wellconsidered decision of an English judge was wrong because some out-of-the-way American case was not cited to him or that another case has been overruled by an American court. We have such an abundance of case law on every subject in our own reports, that principle has very seldom an opportunity of coming to the front. When, however, that case does arise, for the law's sake, do not let us allow English principle to be stifled by foreign competition." NOTES OF RECENT DECISIONS. CRIMINAL LAW VERDICT-ABSENCE OF DEFENDANT.-The Supreme Court of Florida, in the case of Summersell v. State, 20 South. Rep. 242, following the invariable rule that no legal sentence can be pronounced in a felony case upon a verdict rendered and received by the court during the absence of defendant, held that when defendant in such a case voluntarily absconds while the jury are out considering their verdict, the proper practice is for the judge to declare a mistrial and discharge the jury, without receiving any verdict, after he becomes satisfied that the defendant cannot be produced within a reasonable time; and that if, after defendant in a felony case absconds, a verdict of guilty is received and the jury discharged during his absence, and sentence pronounced thereon by the court at a subsequent term, the verdict and sentence are mere nullities. LIEN-LABORER'S LIEN-CLERK.-Whether a clerk is a laborer, within the meaning of statutes giving a lien to the latter or exempting their wages from garnishment, is a question of considerable importance, in reference to which some confusion has arisen in the decisions of the courts. The Supreme Court of Georgia lately considered it in Oliver v. Macon Hardware Co., 25 S. E. Rep. 403, holding that primarily a clerk in a mercantile establishment is not a laborer in the sense which that word is used in the Code, even though the proper discharge of his duties may include the performance of some amount of manual labor. If the contract of employment contemplated that the clerk's services were to consist mainly of work requiring mental skill or business capacity, and involving the exercise of his intellectual faculties, rather than work, the doing of which properly would depend upon mere physical power to perform ordinary manual labor, he would not be a laborer. If, on the other hand, the work which the contract required the clerk to do was, in the main, to be the performance of such labor as that last above indicated, he would be a laborer. In any given case, the question whether or not a clerk is ertitled, as a laborer, to enfore a summary lien against the property of his employer, must be determined with reference to its own particular facts and circumstances. FEDERAL OFFENSE UNLAWFUL USE OF MAILS -LOTTERY.-In United States v. Fulkerson, 74 Fed. Rep. 619, decided by the United States District Court for the Southern District of California, the defendants conducted a business, the essential features of which were as follows: In consideration of a membership fee of $5.00 and monthly dues of $2, it entered into contracts with persons who desired to become members, purporting to be contracts of indemnity in case of sickness, accident, or death, and issued to them certificates, containing the usual provisions of similar insurance policies. To each such certificate were attached 50 coupons of $10 each, which were numbered consecutively, those on the first certificate issued ruuning from 1 to 50, those on the second certificate issued from 51 to 100, and so on, indefinitely. The certificates were issued in the order in which applications were received, by mail or otherwise, and there was no means of knowing, prior to the issue of a certificate, how many had been issued previously, nor what would be the numbers of the coupons to be attached to it. It was provided that one-half of the amounts received from monthly dues should be placed in a so-called "Maturity Fund," and that, whenever there should be sufficient money in said fund to pay one or more coupons, such number of coupons should be paid, and that the coupons to be paid should be determined by taking, first, the coupon numbered 1, then that numbered 5, and so on, in a geometrical progression, with the ratio 5, until the series reached the highest numbered coupon sold; then taking that numbered 2, then 10, etc., in a second series, with the ratio 5, and so on, until the numbers of all the coupons sold should be included in some series. It was also provided that, at the end of 3 years, each certificate holder should receive the full amount paid in monthly dues; at the end of 5 years, $150; at the end of 7 years $300; and at the end of 10 years $500— but the only resources to provide for such payments were the membership fees, and certain inconsiderable portions of the monthly dues; the remainder of such dues, after providing for the maturity fund, being devoted to an expense fund, and a sick, accident and death fund. It was held that this scheme was a lottery within the meaning of Rev. St. § 3894. The court said that the scheme was, in many respects, similar to that in the case of U. S. v. McDonald, 12 C. C. A. 339, which was unqualifiedly condemned by the court. CONTRACT-CONSIDERATION.-The Supreme Court of North Dakota, in Gaar, Scott & Co. v. Green, 68 N. W. Rep. 318, applies the doctrine that where a party is legally bound by contract to execute certain papers, but refuse to do so unless the other party to the contract will enter further agreements and promises, such further agreements and promises are without consideration, and impose no liabilities. It appears that A purchased machinery of B by written contract, in which he agreed to execute certain notes therefor. After receiving the machinery, he refused to execute the notes unless the vendor would agree to do certain things about the machinery not embraced in the original contract. This the vendor promised to do. It was held that such promise was without consideration, and that collection of the notes could be enforced without showing compliance therewith. The court says in part: On this testimony, each party moved for a directed verdict. Appellant's motion was denied, and respondents' granted. We think this was error. It is perhaps true, as urged by respondents, that the maker of a note may place the same in the hands of the payee, and such delivery be so far conditional that no liability upon the notes in the hands of the payee will arise until the specified conditions are performed. Benton v. Martin, 52 N. Y. 570; Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. Rep. 127; Bank v. Luckow, 37 Minn. 542, 35 N. W. Rep. 434; McFarland v. Sikes, 54 Conn. 250, 7 Atl. Rep. 408; Bank v. Bornman, 124 Ill. 205, 16 N. E. Rep. 210. And this conditional delivery may be shown by parol. Such evidence has no tendency to vary or contradict the terms of the written instrument. It only shows that the terms of the instrument never became obligatory. Ware v. Allen, 128 U. S. 591, 9 Sup. Ct. Rep. 174; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. Rep. 816. It may also be true (but we do not decide the point) that if the subsequent contract to which J. K. Green testifies was based upon a sufficient consideration, and if the notes in suit were given by reason of such subsequent promise, and would not have been given otherwise, plaintiff, in seeking to enforce such notes, ratifies such subsequent promise, and cannot be heard to say that it was unauthorized. On this point, see Churchill v. Palmer, 115 Mass. 310; Melby v. Osborne, 33 Minn. 492, 24 N. W. Rep. 253; Culver v. Ashley, 19 Pick. 300; Ellwell v. Chamberlin, 31 N. Y. 611-619; Meehan v. Forrester, 52 N. Y. 277; Mundorff v. Wickersham, 63 Pa. St. 87; Saving Fund Assn. v. Fire Ins. Co., 16 Iowa, 74; Eadie v. Ashbaugh, 44 Iowa, 519. But respondents are not in a position on this record to avail themselves of these principles. J. K. Green bought the machine under a written contract, which included a warranty on the part of the vendor. By the terms of that warranty, he agreed that, in case said machine, or any of its parts, failed to operate as warranted within six days after its first use, he would give written notice of the defect to the home office of the vendor, and also written notice to the agent from whom the machine was purchased, to the end that efforts might be made to remedy the defects, and, if not remedied, the defective machine, or part must be returned to the place where received. He further agreed that use of said machine after the expiration of the six days should be evidence of the fulfillment of the warranty, and that he would thereafter make no other claim upon the vendors. The improvidence of such a contract as applied to threshing machinery is most glaring. It cannot be tested until the crop is ready for threshing, and, once that time arrives, delays are so dangerous and expensive, time is of such importance, that the farmer will take great risks on the machinery, rather than cease work. The prac tical result is that in case of defective machinery the vendors can generally avoid liability on the warranty by reason of some default on the part of the vendee. But, while parties continue to make such contracts, courts must continue to enforce them. It does not appear in this case that any written notice of defects was ever given to the home office or the local office. We have held that this was absolutely necessary. See Fahey v. Machine Co., 3 N. D. 220, 55 N. W. Rep. 580. It does not appear that the machine, or any part thereof, was ever returned, or any offer made to return the same. It does conclusively appear that the machine had been used for 12 days at the time the notes were given. Under these circumstances, the respondents were in no condition to claim defects in the machine. It stood as to them as completely fulfilling the warranty. J. K. Green had agreed to give the identical notes and mortgage that he did give. The consideration for that promise was the sale of the machine which he had in his possession when he gave the notes. That consideration was exhausted, and he had no legal right to insist upon any other terms or contract upon the part of the vendors; and any such further contract, if given, was without consideration, and imposed no obligation. True, he might have refused to execute the notes, but he could only have done so on condition of incurring liability for all damages resulting from such refusal, and this the law regards as the equivalent of performance. As fully sustaining these views we cite, without quoting therefrom, the following well-considered cases: Conover v. Stillwell, 34 N. J. Law, 54; Geer v. Archer, 2 Barb. 420; Ayres v. Railroad Co., 52 Iowa, 478, 3 N. W. Rep. 522; Reynolds v. Nugent, 25 Ind. 328; Furnace Co. v. French, 34 How. Prac. 94; Vanderbilt v. Schreyer, 91 N. Y. 392; Festerman v. Parker, 10 Ired. 474. RAILROAD COMPANY-CARRIERS OF PASSENGERS-INJURY TO EMPLOYEE RIDING AS PASSENGER-EXEMPTION FROM LIABILITY.-The |
