believed the witness, Collins-and they must have done so- - the conviction is undoubtedly right. Both the District Court and jury have passed upon the sufficiency of the evidence, and the story told by Collins is not so improbable as to justify us in disbelieving him. Certain objections were made on the trial to the admission of evidence. These are not in argument of counsel, but, as is our duty, we have examined them, and failed to find they, or any of them, are well taken. Affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

STATUTORY CONSTRUCTION-LAWS 1870, CHAPTER 175; 1873, CHAPTERS 335, 549; 1874, CHAPTER 642- -REPEAL WHEN GENERAL WORDS DO NOT APPLY SPE

CIALLY.-It is provided by Laws 1870, chapter 175, that commissioners of excise shall be appointed by the mayor, etc., but in the cities of New York and Brooklyn the mayor shall nominate three citizens, etc., and that commissioners of excise in cities shall hold their office three years. By Laws 1873, chapter 335, which is an act reorganizing the government of the city of New York, it is provided that the mayor shall nominate, etc., heads of departments and all commissioners, and also members of any other local board and all other officers whose appointment is not in the act excepted or otherwise provided for. The persons appointed are to hold their office six years. By Laws 1873, chapter 549, passed subsequently to chapter 335, the act of 1870 was amended by making provision for the salaries of the commissioners of excise in the city of New York, and n Laws 1874, chapter 642, chapter 549 of 1873 was amended by inserting further provisions relative to excise commissioners in New York. Held, that the provisions of the act of 1870 were not superseded in the city of New York by those of chapter 335 of 1873, and that commissioners of excise hold office for only three years. The acts of the Legislature, passed subsequent to chapter 335 of 1873, amending the act of 1870, clearly show that the Legislature regarded the original act as yet in force and are sufficient to control the general language in chapter 335. In Smith v. People, 47 N. Y. 330, it was held that where an entire act had been in express terms epealed by its title, and afterward, at the same session, an act was passed which indicated that the Legislature assumed that certain provisions in the repealed act were in force, even the express general words of repeal were controlled and qualified by this evidence of the intention of the Legislature not to repeal. Judgment affirmed. People ex rel. Stiner, appellant, v. Morrison. Opinion by Rapallo, J. [Decided Sept. 16, 1879.] EVIDENCE

WHEN WHOLE CONVERSATION MAY BE PROVED.-There is a limit to the extent to which a party may go in calling out what was said by and to him in a conversation, parts of which the other party has proven. Rouse v. Whited, 25 N. Y. 170. In that case the rule for that limit is adopted and followed which is laid down in Prince v. Sams, 7 Ad. & El. 627, which is that where part of a conversation has been given in evidence. any other or further part of that conversation may be given in evidence in reply which would in any way explain or qualify the part first given. In the case last cited the rule is applied only to the declarations of a party to the action, and so far it is approved in Garey v. Nicholson, 24 Wend. 350. But even if the conversation should be deemed the declarations of a third person not a party to the action, the principle of the rule will apply. It is so laid down 1 Phil. Ev. 415. Judgment affirmed. Platner v. Platner. Opinion by Folger, J.

[Decided Sept. 16, 1879.]

INSURANCE -LIFE POLICY INSOLVENT COMPANY, RECEIVER-NOTICE FOR CLAIMS-CREDITORS-STATU

TORY CONSTRUCTION, 2 R.S. 470, § 75 — POLICY-HOLDERS NOT PARTNERS BUT CREDITORS— RULE FOR ESTIMATING VALUE OF POLICIES-PRIORITY OF CLAIMS.

(1) Where notice to exhibit claims against an insurance company in the hands of a receiver is published under the order of the court, as required by 2 R. S. 467, § 56, claims not exhibited within the required time are precluded from sharing in the assets of the company. Matter of Harmony Ins. Co., 45 N. Y. 310. (2) The provisions of 2 R. S, 470, § 75, as to the payment by receivers of open and subsisting engagements in the nature of insurances, etc., are not applicable to life insurance companies, but only to fire and marine ones having a definite time to run. (3) Policy-holders in a life insurance company formed under Laws 1853, chap. 463, are not partners in the company, nor are they members of it. Cohen v. N. Y. Mut. Life Ins. Co., 50 N. Y. 610. (4) Under a contract for life insurance the agreement is necessarily implied that the company will receive the premiums and keep the policy in life until the end of the term, and the agreement is also implied that it will do its business as required by statute, and will be at all times in a condition to discharge its liabilities. Therefore when it becomes insolvent, discontinues business and makes it impossible for the assured to pay premiums and fails to carry its policies, it becomes liable to its policy-holders for damages for its breach of contract, and they have a claim against it for damages. Fischer v. Hope Ins. Co., 69 N. Y. 161; Bell's Case, L. R., 9 Eq. 706; Cook's Case, id. 703; Holdrich's Case, L. R., 14 Eq. 72. Held, also, that the policy-holders are creditors of the company for the present value of their policies at the date of the dissolution of the company estimated by a table of expectancy of life similar to that annexed to the act. Laws 1868, chap. 623. (5) In offsetting against the value of the policies, the amounts due from policyholders upon notes given for premiumis, there was no error. 2 R. S. 47, § 36; 464, § 42; 469, § 68. Matter of Globe Ins. Co., 2 Edw. Ch. 625; Osgood v. Degroot, 36 N. Y. 348. (6) Death-claims which matured before the dissolution of the policy are not entitled to payment before the claims of the holders of unmatured policies. Order affirmed except as to one appellant. People v. Security Life Ins. & Annuity Co. Opinion by Earl, J. [Decided Sept. 16, 1879.]

LACHES-WHAT DO NOT CONSTITUTE-VACATING ASSESSMENT.-A special proceeding under Laws 1858, ch. 338, for the vacating of an assessment upon property for the paving of a city street was commenced over seven years after the confirmation of the assessment. During that time there had been no change in the position of the parties except that the city had paid the expense of the improvement, but this was done in proceedings which were irregular and baseless. Held, that petitioner had not been guilty of such laches as to take away his right to relief. Although a court of equity is never active against public convenience, and refuses its aid when a party has slept upon his rights (Smith v. Clay, Ambler, 645), what length of neglect to enforce a right will bring a case under the operation of this rule may not absolutely be determined. In one case fourteen months' delay was held fatal (McMurray v. Noyes, 72 N. Y. 523), because in that time the value of certain property had been so changed by accidental causes that the situation of the parties was materially changed. Four years' delay was held fatal in Davison v. Associates of Jersey Co., 71 N. Y. 333. Courts of law are wont to deny relief by certiorari where there has been a lapse of time which in the judgment of the court should debar therefrom. Three years was held a fatal delay in People v. Mayor, etc., 2 Hill, 9. See, also, Elmendorf v. Mayor, etc., 25 Wend. 693. Order reversed and rehearing ordered. Matter of Petition of Lord. Opinion per Curiam. [Decided Sept. 16, 1879.]

VERMONT SUPREME COURT ABSTRACT.*

INFANCY -INFANT NOT LIABLE ON CONTRACTS FALSE REPRESENTATION.- Plaintiff, falsely representing himself to be of full age, bought a wagon of defendant, paying part of the purchase-money, and giving his promissory note secured by a lien on the wagon for the remainder. After plaintiff had used the wagon until the use he had had of it was worth more than what he had paid, and untiî it had depreciated by more than a like sum, he made default in payment, whereupon defendant took the wagon under his lien, and sold it at auction. Plaintiff thereupon brought assumpsit for the money he had paid. Held, that as defendant retook the wagon, plaintiff was relieved of the duty of returning it or rescinding the contract, and might recover, notwithstanding the depreciation and the value of the use of the wagon; and that it made no difference that plaintiff falsely represented himselt of age, as such a representation could add nothing to the obligation of the contract. The court remark: Does the fact that the plaintiff, at the time he traded for the wagon, falsely represented to the defendant that he was of age, affect his right of recovery in this case? We think not. To hold that he is estopped by such representations from avoiding the contract by asserting his infancy, would be an exception to the law governing this class of cases. Such representations cannot be of any greater force to bind the plaintiff than the contract itself; but whether the plaintiff would be liable to the defendant for the deceit, in an action ex delicto, is a question we have no occasion to consider or decide. In our opinion, the false representations complained of do not make the contract any more binding than it otherwise would be. Burley v. Russell, 10 N. H. 184; Fitts v. Hall, 9 id. 441; Schoul. Dom. Rel. 567. Whitcomb v. Joslyn. Opinion by Dunton, J.

MARRIED WOMAN-ESTATE OF, LIABLE FOR DEBTS FOR BENEFIT OF.- Debts contracted by a feme covert in the management of her separate property and for its benefit, or for her benefit on its credit, will, in equity, be charged on such property, whether it be personalty or realty, unless the instrument creating her estate therein protects it from being so charged. Thus, where it appeared that the orator, in a suit brought against husband and wife to enforce a demand against the separate property of the wife, had performed labor for the wife at her request on and about lands and buildings that were conveyed to her during coverture by deed in common form and which she and her husband occupied, and had sold and delivered to her property that was used in business carried on on the premises by the husband in the wife's name, and had pastured the wife's cows, all on the wife's credit and the credit of her property, and under such circumstances that the wife knew, or in the exerercise of ordinary care might have known, that the labor was so performed the property so sold, etc., it was held, that although the wife could not exercise the jus disponendi of her property without procuring, in some cases, the formal concurrence of her husband, or, in others, the permission of the court, yet, in equity, the orator's debt should be a charge on the wife's separate property; and that it could make no difference that the husband had possible rights as tenant by the curtesy, nor that the wife allowed the profits arising from the property sold by the orator and the income from the cows to be used in the support of her and her husband's family, nor that the orator's charges were made to both husband and wife. Semble, that the general engagements of a feme covert, unconnected with her separate estate, being void at law, are not enforceable in equity against such estate unless they were le

* To appear in 51 Vermont Reports.

gally made a charge thereon -as by mortgage, in case the property was realty, or by a pledge and delivery, in case it was personalty. Dale v. Robinson. Opinion by Ross, J.

STATUTE OF FRAUDS - VENDOR AND VENDEE OF LAND.- A parol agreement by the vendor with the vendee of land, to remove a mortgage thereon, given to secure the debt of another, is not within the Statute of Frauds, and is founded on sufficient consideration. Green v. Randall. Opinion by Royce, J.

MARYLAND COURT OF APPEALS ABSTRACT.*

FORMER RECOVERY-WHEN DIFFERENT SUITS ON SAME BOND ALLOWABLE.-In an action to recover on a bond to indemnify against outstanding debts of a partnership, the defendant pleaded that there had been a former recovery on the same bond, between the same parties; but it appearing that the second suit was for breaches of the bond not embraced in the first suit it was held, (1) that several suits on the same bond for different breaches could be maintained; (2) that the judgment in the former suit was not for the penalty of the bond, but merely the recovery of damages for the breaches thereof, which constituted no defense to the second action which was for different breaches of the bond. The court say: The authorities are clear, that the judgment pleaded as a former recovery must be for the same cause of action; although it will be presumed that the plaintiff recovered all that he could then recover in that action. The principle of res adjudicata operates as a bar to a second suit, when it is shown that the former recovery was between the same parties, or their privies, and the point in controversy the same in both cases, and determined upon the merits. Hughes v. United States, 4 Wall. 232; Todd v. Stewart, 9 Q. B. 759 (58 Eng. Com. Law, 759); Lord Bagot v. Williams, 3 B. & Cr. 235; Phillips v. Berick, 16 Johns. 137. But the former judgment constitutes no defense, if it be shown to have related to a different breach of the same contract. Bristowe v. Fairclough, 1 M. & G. 143; Florence v. Drayson, 1 C. B. (N. S.) 584; Butler v. Wright, 2 Wend. 369. Nor will such former judgment be a bar, if the action failed because prematurely brought. Palmer v. Temple, 9 Ad. & Ell. 521. Orendorf v. Utz. Opinion by Stewart, J.

WARRANTY-MEASURE OF DAMAGES FOR BREACH OF. In an action for the breach of warranty in the sale of a mare it appeared that plaintiff kept the mare for some time and used her daily, and did not offer to return her until a month or more after discovering that she was lame, but employed a farrier to doctor her. Held, that in such case the plaintiff was not entitled to recover the whole amount of the purchase-money, but the measure of damages for a breach of the warranty, was the difference between the value of the mare, with the defect warranted against, and the value she would have had without that defect. Held, also, that the plaintiff having incurred expense for the keep and doctoring of the mare, ought to be allowed for the saine, and on the other hand should be charged for whatever benefit and advantages he derived from using her. It has been held in Maryland that for a breach of warranty of soundness a purchaser may at his election, in a reasonable time, rescind the contract, return the property or offer to return it and recover back the purchase-money. Rutter v. Blake, 2 H. & J. 353, Franklin et al. v. Long, 7 G. & J. 407. But it seems the modern doctrine, established both in England and elsewhere in the United States, is that where the contract of sale has been executed, and the title has vested in the purchaser by delivery and acceptance, where there is no

*To appear in 48 Maryland Reports.

fraud, and no agreement to return, he is not entitled to rescind and return the property, for breach of warranty, but his remedy in such case is by suit on the. warranty. Sedgwick on the Measure of Damages, 286, 287, m. (and note) where the cases are collected. Mr. Benjamin in his work on Sales, states the law in the same way (2d ed., pp. 741, 750). Horn v. Buck. Opinion by Bartol, J.

MICHIGAN SUPREME COURT ABSTRACT.

JULY TERM, 1879.

EMINENT DOMAIN - ALL DAMAGES TO LAND MUST BE CLAIMED IN PROCEEDING TO ACQUIRE IT. Plaintiff allowed a railroad company to enter upon her land and construct its road. After it had operated the road for some years proceedings were commenced under the statute by the company to acquire the land. Held, that plaintiff was bound to present all her claims for damage to the land in that proceeding, and could not, in addition thereto, maintain an action of trespass against the company for damages sustained for the use of the property per year, not as a damage to the land itself, but as a damage for the use of the land during each year. Harlow v. Marquette H. & O. Ry. Co. Opinion by Marston, J.

PROFESSION Under a statute providing for the issue of a capias for a liability incurred through misconduct or neglect in office or in some professional employment, held, that a real estate agency was not a professional employment. In Brownson v. Newberry, 2 Doug. (Mich.) 38, and People v. McAllister, 19 Mich. 215, it was held that a private agency is not either office or professional employment. Professional employment can only relate to some of those occupations universally classed as professions, the general duties and character of which courts must be expected to understand judicially. Real estate agencies are no more professions than any other business agencies. A commission merchant or an agent for the sale of any particular kind of persona. property, acts in an analogous capacity. Any one can assume and lay down such business at pleasure, and any one can conduct it in his own way, on such terms and conditions as he sees fit to adopt. There is nothing in our laws which would enable any court to draw a line between such business agencies. They are not classed as professions by popular usage or by law. Pennock v. Fuller. Opinion by Campbell, C. J.

-REAL ESTATE AGENCY NOT ONE.

SURETYSHIP-SURETY LIABLE ONLY ACCORDING TO TERMS OF BOND.-A sewing-machine company and M. made a written contract in which M. was allotted certain localities where he might sell the company's machines, the company agreeing to furnish the same to him. On the back of this writing, and constituting a part of the same transaction, the defendant entered into a bond or obligation to the company, conditioned that M. should pay the company all indebtedness or liability then existing or thereafter to exist from him to the company in any of certain specified shapes, and amongst them any indebtedness in the form of notes and indorsements. Held, that defendant was not liable for machines furnished by the company to M. to be sold outside the specified localities and which were so sold. White S. M. Co. v. Mullins. Opinion by Graves, J.

RECENT ENGLISH DECISIONS. EMINENT DOMAIN POWER OF RAILWAY COMPANY TO DIVERT NON-NAVIGABLE RIVER.—The defendants constructed, under an Act of Parliament, a railway which crossed a non-navigable river at two places. In one of these places they blocked up the course of the

* * *

river and inserted, in the obstructing embankment, a twelve-inch pipe, which carried off some of the water of the river, and in the other place they made a cutting covered with an under-bridge. Between the two places where the railway intersected the river they made a goit on the eastern side of the railway. The effect of these changes was to cut off a bend of the river on the western side of the railway, to the west of which bend the plaintiff's land lay to divert the flow of the river from the bend into the goit, and to change the stream running through the bend into a less freely flowing stream than theretofore, and otherwise to interfere with the rights of the plaintiff as riparian proprietor. The defendants had no express authority under their act to make such diversion, and it was not in accordance with their deposited plans (which showed that the river was intended to be crossed by bridges), but it was within the line of deviation as shown on such plans. (2) By 8 Vict., chap. 20, sec. 16, "It shall be lawful for the company for the purpose of * * to constructing the railway * divert or alter, as well temporarily as permanently, the course of any such (non-navigable) rivers, or streams of water ** * * in order the more conveniently to carry the same over or under or by the side of the rail* * * and * * * way as they may think proper they may do all other acts necessary for making, maintaining, altering, or repairing and using the railway." Held, on the authority, but dissenting from the principle, of Reg. v. The Wycombe Railway Company, 15 L. T. Rep. (N. S.) 610;; L. Rep., 2 Q. B. 310, that the section did not authorize the diversion, and that inasmuch as the diversion was not necessary to the construction of the railway, although the consequence of the defendants being prevented from making such diversion, and similar diversion at other parts of their line, would be to entail on them such additional expense as practically to prevent them from constructing their line, an injunction must be granted to restrain them from continuing the works causing such obstruction and diversion. Ch. Div., July 1, 1879. Pugh v. Golden Valley Ry. Co. Opinion by Fry, J., 41 L. T. Rep. (N. S.) 30.

MORTGAGE-OF

LEASEHOLDS POWER OF SALE WITH TRUST OF SURPLUS PROCEEDS ENTRY BY MORTGAGEE-POSSESSION FOR TWENTY YEARS TRUSTS EXTINGUISHED - STATUTE OF LIMITATIONS.

A mortgage of certain leasehold property contained the usual power of sale, and declared that the surplus proceeds should be held on certain trusts in favor of the mortgagor, his executors, administrators, and assigns. The representatives of the mortgagee entered into possession of the property, and after a lapse of twenty years, during which time there was no acknowledgment of the mortgagor's title or right of redemption, sold it. Held, that the mortgagor's right of redemption being extinguished at the end of the twenty years under the Statute of Limitations (3 & 4 Will. 4, ch. 27), §§ 28 and 34, the trusts of the surplus proceeds resulting from the sale were also extinguished, and could not be enforced. Ch. Div., June 19, 1879. Chapman v. Corpe. Opinion by Fry, J., 41 L. T. Rep. (N. S.) 22.

STATUTE OF FRAUDS CONTRACT CONTAINED IN LETTERS EFFECT OF WHOLE TRANSACTION-COMPLETE CONTRACT" TITLE TO BE APPROVED BY OUR SOLICITORS. - When a contract is contained in the several letters of a correspondence it is not sufficient that the earlier letters should amount to a memorandum of a completed contract within the Statute of Frauds, if terms contained therein are varied by subsequent letters and conversations between the parties. Judgment of the Court of Appeal affirmed for different reasons. Per Lord Selborne: The Statute of Frauds is a weapon of defense and not of offense, and

does not make any signed instrument a valid contract by reason of the signature, if it is not such according to the good faith and real intention of the parties. Semble, per Lord Cairns, L.C., that the addition of the provision "the title to be approved by our solicitors" to a contract for the sale of land only means that the title will not be accepted without investigation, and does not affect a contract otherwise complete. House of Lords, May 1, 1879. Hussey v. Horne-Payne, 41 L.

T. Rep. (N. S.) 1.

WILL

64 CONSTRUCTION WITHOUT HAVING ANY ISSUE READ " HAVING HAD NO ISSUE."- A testator devised real estate to his daughter A, "and after her decease without having any issue" to B. A married and had two children. On a petition by A and her husband praying for a declaration that by the birth of these children she had become absolutely entitled to the estate, held, that the words "without having any issue" should be read "having had no issue," and that therefore A's interest on the birth of a child be

came indefeasible. Ch. Div., July 26, 1879. White v. Hight. Opinion by Bacon, V. C., 41 L. T. Rep. (N. S.)

17.

CRIMINAL LAW.

BASTARDY-VARIANCE-PROOF MUST FOLLOW COMPLAINT.—In a complaint for bastardy by the woman, the time and place where the child was begotten was set forth with particularity. She stated the time as the twenty-fifth or twenty-sixth of September, 1877, and the place as his father's residence, and, as helping to identify the occasion, she stated further that his parents were away from home, that she had been sick and was not feeling well, and that the intercourse occurred in her bedroom. At the trial the judge allowed the accusation to be disregarded, and permitted the prosecution to show that the act causing pregnancy was done several weeks earlier, in another part of the house, and under quite different circumstances. Held, error. Michigan Sup. Ct., July, 1879. Hull v. People. Opinion by Graves, J.

FALSE PRETENSES-WHAT INDICTMENT MUST STATE. —(1) In an indictment for obtaining goods by false pretenses, the pretenses consisted of representations by the accused of the value of several stocks of goods he owned, of the amount of his indebtedness, and of the amount that he was worth. Held, that negative averments in the indictment, which, in effect, merely deny the representations to be literally true, but which do not negative their substantial truth as a means whereby the accused obtained credit in the purchase of goods, are bad. (2) Where, in such an indictment, the only description of the property is "a certain lot of dry goods," the description is insufficient. Ohio Sup. Ct., Sept. 30, 1879. Redmond v. State. Opinion by White, J.

RAPE-INDICTMENT IN SUBSTANCE FOLLOWING THE STATUTE SUFFICIENT.-The statute of California provides that "every person who assaults another, with intent to commit rape," is punishable as therein provided. But the offense is not particularly described. Held, that an indictment stating that the defendant "did willfully, feloniously, and of his malice aforethought commit an assault upon the person of Caroline Waldfogal, with intent her, the said Caroline Waldfogal, then and there to rape," was sufficient. The court remark: It has repeatedly been held that an indictment is sufficient if it describe the offense charged, in the language of the statute. See People v. Shaber, 32 Cal. 36; People v. White, 34 id. 183; People v. Potter, id. 114. It would have been sufficient, according to the authority of those cases, to have described the intent in the language of the statute-that is to say, to have

alleged the felonious assault, "with the intent then and there upon the person of the said Caroline Waldfogal to commit a rape." In People v. Potter, supra, it is said that it is not necessary to follow strictly the language of the statute by which the offense is described, but that words conveying the same may be used. The words employed in the indictment convey the same meaning as the words of the statute, and therefore the indictment is, in that respect, sufficient. California Sup. Ct., Sept. 13, 1879. People v. Girr.

PERJURY

--

INDICTMENT MUST STATE THAT OATH WAS MADE BEFORE PROPER AUTHORITY.-An indictment for perjury set forth that the oath assigned as perjury was taken before "T. O. Hynes, then and there being and acting as one of the coroners of the said county of Washington," etc. Nowhere in the indictment was the officer, before whom the oath is taken, characterized otherwise than as coroner. Under the Texas law, as it now exists, no such office, separate, distinct and specific, as that of coroner, eo nomine, has been, or is, known. But it is provided by statute that justices of the peace shall discharge all the duties of coroner except such as devolve upon constables. Held, that the indictment was fatally defective in not alleging or showing that the oath assigned as perjury was administered by competent authority, or by any officer authorized by the laws of the State. The allegation, to have been sufficient, should have alleged, substantially, that T. O. Hynes was a justice of the peace of Washington county, and that, at the time he administered the oath to defendant, which was assigned as perjury, he, as said justice of the peace, was acting in the discharge of the duties of a coroner in said county. The court remark that in Maine it is held that an indictment for perjury is fatally defective from which it does not appear, with certainty, that at the time the offense is charged the tribunal which administered the oath, and before which the testimony was given, had jurisdiction of the matter then on trial." State v. Plummer, 50 Me. 217. In North Carolina "it was held that, in an indictment for perjury, the court, before which the perjury is alleged to have been committed, must be legally set forth." State v. Street, 1 Murph. (N. C.) 156. And so in Illinois, Indiana, and New Jersey, it is held that to authorize a conviction for perjury, it is requisite to allege and prove that the person, before whom the oath was taken, was authorized by law to administer it. Morrell v. People, 32 Ill. 499; McGragor v. State, 1 Ind. 232; State v. Dayton, 23 N. J. L. (3 Zabr.) 49. It would have been sufficient as to the authority of the justice to administer the oath, to allege that he was a justice of the peace, and in his discharge of the duties of a coroner had jurisdiction of the matter under investigation. State v. Peters, 42 Tex. 7; State v. Stillman, 7 Cold. (Tenn.) 341. Texas Court of Appeals, April 26, 1879. Stewart v. State. Opinion by White, J.

FINANCIAL LAW.

EVIDENCE- -PAROL ADMISSIBLE TO SHOW CIRCUMSTANCES OF INDORSEMENT.- In this case defendant set forth that he indorsed a note for a special purpose, and that such indorsement was made by him without consideration, to the knowledge of the plaintiff. And for the purpose of showing under what circumstances the indorsement was made, and the note placed in the hands of the plaintiff to be discounted, and in what manner the note was used by the plaintiff to raise the money thereon, and the way in which it again came to the possession of the plaintiff, witnesses were examined. Held, that in an action by the holder of negotiable paper against the immediate indorser, the title of no innocent third person intervening, it is

always competent to the defendant to show, by parol evidence, either the want or failure of consideration as between himself and the plaintiff, or that the indorsement was procured by fraud, or that it was made upou some special trust, or for a special purpose, as to an agent, to enable him to use the paper or the money in some particular way, or to make collection or have the paper discounted, for the benefit of the principal; or that the note was indorsed and delivered to the plaintiff to be used only upon some express condition that has not been complied with. In these and similar instances, the parol evidence is admitted to show the

the contracting party. The purchaser of property subject to a mortgage given to secure notes drawing usurious interest, who assumes to pay such notes, cannot, therefore, recover money paid for such interest thereon. Nelson v. Cooley, 20 Vt. 201; Low v. Prichard, 36 id. 183; Lamoille Co. Nat. Bank v. Bingham, 50 id. 105; Reed v. Eastman, id. 67. Vermont Sup. Ct. Spaulding v. Davis. Opinion by Redfield, J. (To appear in 51 Vt.)

TRIAL BY JURY.

STATUTE OF FRAUDS - DOES NOT APPLY TO ACCEPTANCES. The statute of frauds has no application in suits on an acceptance, which, as against the payee, conclusively admits funds of the drawer to be in hand. The drawer and acceptor are the immediate parties to the consideration, and if the acceptance be without consideration, the drawer cannot recover of the acceptor. But the payee holds a different relation; he is a stranger to the transaction between the drawer and the acceptor, and is, therefore, in a legal sense, a remote party. In a suit by him against the acceptor, the question as to the consideration between the drawer and

acceptor cannot be inquired into. The payee or holder gives value to the drawer, and if he is ignorant of the equities between the drawer and acceptor, he is in the position of a bona fide indorsee. Robinson v. Reynolds, 2 Queen's Bench, 196; Raborg v. Peyton, 2 Wheat. 385; Storer v. Logan, 9 Mass. 60. Maryland Ct. App. Laflin, etc., Powd. Co. v. Sinsheimer. Opinion by Robinson, J. (To appear in 48 Md.)

EXTENSION OF TIME FOR USURIOUS

The

SURETYSHIP CONSIDERATION DISCHARGES SURETY.-An agreement with the principal to extend the time of payment in consideration of the payment of usurious interest releases the surety who has not consented thereto. court remark that interest paid in advance is a sufficient consideration to support a contract for the extension of the time of payment of a note or other money demand, is fully sustained by the following cases: Smarr v. Schnitter, 38 Mo. 479; Lime Rock Bk. v. Mallet, 34 id. 547; Bank v. Woodward, 5 N. H. 99; Wright v. Bartlett, 43 id. 548; Montague v. Mitchell, 28 Ill. 485; Kennedy v. Evans, 31 id. 258; Myers v. First Nat. Bank, 78 id. 258; Cross v. Wood, 30 Ind. 378; White v. Whitney, 51 id. 124; Vilas v. Jones, 10 Paige, 76; Miller v. McCann, 7 id. 451; Kenningham v. Bedford, 1 B. Monr. 325; Austin v. Dorwin, 21 Vt. 38. In most of the above cases it was held that payment of usurious interest is a sufficient consideration for the promise to extend the time of payment. We are aware that the contrary was held in Wiley v. Hight, 33 Mo. 132; and in Farmers and Traders' Bank v. Harrison, 57 id. 506; but the case principally relied on to support the ruling was Marks v. Bank of Missouri, 8 Mo. 318, in which Judge Scott expressly stated as the ground of that decision that "the usurious interest might have been recovered back the next moment after it was paid." Such is not the law at present in this State. Ransom v. Hayes, 39 Mo. 445; Rutherford v. Williams, 42 id. 18. Missouri Supreme Court, April Term, 1879. Stillwell v. Aaron. Opinion by Henry, J.

USURY-ACTION FOR, PERSONAL.-The right of action to recover for money paid as usury is personal to

ion of a not inconsiderate class of laymen on the value of verdicts, and the policy of retaining trial by jury. But, like all sweeping condemnations, it has the supreme defect of a general conclusion drawn from partial knowledge and partial observation. The mere conjunction of the expression "palladium of English liberty" with "idiocy of verdicts" at once betrays ignorance or want of recognition of the diverse character and object of trial by jury. When this mode of reaching a judicial decision is belauded as the palladium of English liberty, trial by jury in a limited class actions, is really regarded. Thus, in trials for treason, of criminal prosecutions, and possibly one class of civil sedition, seditious or blasphemous libels, ordinary libels, scandalum magnatum, and in cases under the Foreign Enlistment Act-in short, where the Crown is not only in name but in substance the prosecutor, and perhaps, also, in civil libels-trial by jury may fairly be spoken of as a palladium of liberty. So that, in order to justify the debater's opinion, it must be shown that juries display idiocy in the very limited class of cases above named. But this is manifestly not so; for the instances in which juries are called upon to act in this class are very rare indeed; and, possibly, the only fault to be found with their verdict in modern times bas been their bias against the Crown. If in any other cases juries have shown idiocy, then those have been cases in which trial by jury has been in no sense the palladium of liberty.

But, apart from the criticism of Mr. Greg's debater, there is to be found in the present day a scepticism, and perhaps a growing scepticism, as to the expediency of retaining trial by jury. In order to appraise this disbelief at its proper value, we must endeavor to distinguish between the various kinds of trial by jury; for otherwise we shall be doing exactly what we have already said ought not to be done — that is to say, we should be indulging in sweeping condemnation through partial observation. Roughly speaking, there are four classes of juries, or rather jurors, in this country. We have the special jurors and the common jurors of agricultural districts, and the special jurors and the common jurors of the metropolis and of large cities. Now for dealing with the class of cases coming before them, such as rights to and in land, and disputes involving character, the special jurors of the agricultural districts are most competent, and we should think that no one would call their verdicts idiotic; and no suitor, having a genuine belief in his cause, would desire any other tribunal. So, also, before the amendment of the Jury Acts, special jurors in the metropolis formed admirable tribunals. They were men of great intelligence, great experience, and great integrity. At Guildhall the experience was "commercial," and at Westminster it was 66 civil and social." In both places the special juries commanded the unfeigned respect of judges, counsel, and suitors; and there is no reason to suppose