nothing of the circumstances under which the mortgage was placed in the hands of Gill, and relied on the certificate of no defense in purchasing the mortgage. The mortgage was, after the purchase, left with Gill, who retained possession as the agent of McCandless. After the assignment, Gill inserted a clause in the mortgage waiving the right of exemption provided by an act of the Legislature of Pennsylvania, which act at the time had been repealed. He also inserted a clause in the certificate of defense, which purported to be an extension of the mortgage for one year by the mortgagor. Such other facts as are essential appear in the opinion.

John Dalzell, John Hampton and A. N. Sutton, for plaintiff in error.

M.W. Acheson and Miller & McBride, for defendant in error.

MERCUR, J. This is a case of scire facías on a mortgage. It is conceded that the plaintiff in error executed the mortgage described in the writ of scire facias. He also executed the bond recited in the mortgage. They both bear date the 18th of June, 1873, aud the mortgage was acknowledged on the 24th of the same month. On the 18th July following, he executed "a certificate of no defense." It distinctly referred to the bond and mortgage, stating where the latter was recorded, and declared that it, together with the boud accompanying the same, "is justly, fully and entirely owing, and payable according to the terms and conditions thereof. And I hereby also certify to any person or persons who may desire to purchase the same, that I have no drawback, claim, set-off, or other defense of any kind whatever, to the payment of any part of said mortgage, either principal, interest or commissions, when due, and payable or collectible, by the terms and conditions therein recited, as aforesaid." On the day after its date he duly acknowledged this certificate. He placed these three written instruments in the hands of Mr. Gill, in anticipation of needing money, and with the view of a subsequent negotiation of the mortgage. Hay, to whom the mortgage was executed and the bond payable, was the law partner of Gill.

The jury has found, and on evidence amply sufficient to justify the finding, that in July following, McCandless, the equitable defendant in error, purchased the mortgage of Gill in good faith and for a valuable consideration, and took an assignment thereof from Hay.

It matters not that Gill may have sold the mortgage, and caused it to be transferred before he was authorized so to do under the private instructions given him by the mortgagor; nor that he failed to account to the latter for the money received therefor. These facts are insufficient to defeat a recovery by the assignee. The papers which the mortgagor executed and placed in the hands of Gill, not only impliedly authorized a sale of the bond and mortgage, but invited purchasers by expressly declaring that he had "no defense of any kind whatever." Ashton's Appeal, 23 P. F. Smith, 153; Gill v. Hutchison, decided at the present term (reported ante, 545). This written declaration fresh from the mortgagor having been shown to the assignee when he was about to purchase, it is idle to say he should have gone to the mortgagor personally and inquired if there was any defense. This certificate was addressed to all whom it may concern." It could not have been more effective and conclusive notice to one about to purchase, that the mortgagor had no defense, if it had been addressed to the purchaser by name. The main purpose of the execution and delivery of such a certificate is to dispense with personal inquiry. At the same time it gives certainty to the declaration and perpetuates the evidence thereof. It is a well-settled rule that where one of two innocent persons must suffer

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from the tortious act of a third, he who gave the wrongdoer the means of perpetrating the wrong must bear the consequences of the act. By placing the papers in the hands of his agents and attorney, the mortgagor gave him the means of making sale of the mortgage, and of obtaining the money of the assignee. The fraud which Gill may thereby have practiced on the mortgagor cannot operate to the prejudice of the innocent and good faith purchaser.

It was further contended that the alterations made in the mortgage and in the certificate, after their execution, were sufficient to avoid the instruments. In determining the legal effect of the alteration it is important to consider by whom the alteration was made, and the materiality of the alteration.

1. The assignee was no party to the alterations. He was in no manner privy to their making. They were made by Gill. He was either the agent of the mortgagor, intrusted by him with the papers, and authorized to sell the mortgage, so that the act of the agent became the act of his principal; or he was not such agent, and not interested and not authorized to act for the mortgagor, in which case the alteration was the act of a stranger. Then, although material, the alteration will not affect the validity of the instrument. Greenl. Ev., §§ 566, 568; Lewis v. Payn, 8 Cowan, 71; Jackson v. Malin, 15 Johns. 297; Withers v. Atkinson, 1 Watts, 236; Neff v. Horner, 13 P. F. Smith, 327. 2. The alteration in the mortgage was by adding a clause waiving the benefit of a specific act of assembly which in fact had been repealed prior to the execution of the mortgage. As then the act mentioned had no validity whereby the mortgage could be affected, an attempt to waive its provisions had no effect. It was simply an immaterial act, which in no manner prejudiced the mortgagor. As therefore the legal effect of the mortgage remained the same, the alteration did not avoid it. Hunt v. Adams, 6 Mass. 519; Nevins v. De Grand, 15 id. 436; Gardinier v. Sisk, 3 Barr, 326; Miller v. Gilleland, 7 Harris, 119; Miller v. Reed, 3 Casey, 244; Burkholder v. Lapp's Exrs., 7 id. 322.

The substance of the alteration in the certificate is a recital that the mortgage was renewed and extended another year. It was the declaration of a fact intended for the benefit of the mortgagor. It was made by Gill long after the purchase by the assignee. It did not destroy the title which the latter had previously acquired.

It may be further observed that after this alteration appears to have been made, the mortgagor obtained policies of insurance on the building covered by the mortgage, in which was inserted the clause “loss, if any, first payable to Jas. McCandless, mortgagee." The plaintiff in error thereby clearly evinced knowledge, and implied ratification of the assignment. It is unnecessary to consider all the assignments separately. We discover no error in the answers and charge of the learned judge.

Judgment affirmed.

UNITED STATES SUPREME COURT

ABSTRACT.

EVIDENCE-PAROL, TO CONTRADICT CONTRACT UNDER SEAL NOT ADMISSIBLE.-A contract under seal between plaintiff in error and defendant, a bank in Pennsylvania, was to the effect that the bank should not before the maturity of certain notes named thereon take measures to collect a judgment assigned therein without the consent of plaintiff. Held, that a contemporaneous parol agreement that it should take such measures could not be shown. The court says: No principle of evidence is better settled at the common law than that when persons put their contracts in writing,

it is, in the absence of fraud, accident, or mistake, "conclusively presumed that the whole engagement, and the extent and manner of their undertaking, was reduced to writing." 1 Greenl. Ev., § 275. In Pennsylvania the stringency of this rule has been very considerably relaxed, but we have been referred to no case where, in the absence of fraud or mistake, parol evidence has been admitted to alter the plain and unequivocal terms of a written instrument. In Martin v. Berens, 67 Penn. St. 463, the court says: "Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one, and now that parties are allowed to testify in their own behalf, the necessity of adhering strictly to it is all the more imperative." In this case the Pennsylvania decisions are extensively reviewed, and the exceptions to the rule of the common law which they recognize carefully stated, but the conclusion is that "as a general rule, it (parol evidence) is inadmissible to contradict or vary the terms of a written instrument." Again, in Barnhart v. Riddle, 29 Penn. St. 96, this language is used: "Where parties have deliberately put their engagements in writing, and no ambiguity arises out of the terms employed, you shall not add to, contradict, or vary the language mutually chosen as most fit to express the intention of their minds. What if parol evidence prove, never so clearly, that they used such and such words in making their bargain; the writing signed, if it contain not those words, is final and conclusive evidence that they were set aside in favor of the other expressions that are found in the written instrument. And hence this rule of law is only a conclusion or reason, that that medium of proof is most trustworthy which is most precise, deliberate, and unchangeable." This is the rule, it was said, which prevails in reference "to the terms in which the writing is couched," and that "evidence to explain the subject-matter of an agreement is essentially different from that which varies the terms in which a contract is conceived." It is not always easy to determine when in Pennsylvania parol evidence is admissible to explain a written instrument, but in Anspach v. Bast, 52 Penn. St. 358, it is expressly declared that "no case goes the length of ruling that such evidence is admitted to change the promise itself, without proof or even allegation of fraud or mistake. The contrary has been repeatedly decided." To the same effect is the case of Hacker v. National Oil Refining Co., 73 Penn. St. 96, as well as many others that might be cited. Judgment U. S. Circ. Ct., E. D. Pennsylvania, affirmed. Bast, plaintiff in error, v. First National Bank of Ashland. Opinion by Waite, C. J. PRACTICE ADMISSION OF NEWLY-DISCOVERED EVIDENCE UNDER BILL OF REVIEW.-There is no universal or absolute rule which prohibits the courts from allowing the introduction of newly-discovered evidence under a bill of review to prove facts which were in issue on the former hearing. But the allowance of it is not a matter of right in the party, but of sound discretion in the court, to be exercised cautiously and sparingly, and only under circumstances which demonstrate it to be indispensable to the merits and justice of the cause. Wood v. Mann, 2 Sumn. 334. Decree of U. S. Circ. Ct., Kansas, affirmed. Craig, appellant, v. Smith and another. Opinion by Waite, C. J.

payment designated therein," upon the same basis as to immunity from set-off, discount, or equities, as bills and notes payable at a bank or private banking-house. Such declared to be the intention and effect of the act of April 8, 1873, amending § 1833 of Revised Code of Alabama. (2) The intention of the Legislature, clearly expressed in a constitutional enactment, should not be defeated by too rigid adherence to the letter of the statute, or by technical rules of construction. Any construction should be disregarded which leads to absurd consequences. Wilkinson v. Leland, 2 Pet. 662. The courts ought, rather, adopting the language of Lord Hale, to be "curious and subtle to invent reasons and means" to carry ont the clear intent of the lawmaking power when thus expressed. The judiciary must respect the latest expression of the legislative will, and not permit it to be eluded by mere construction. "A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the meaning of the makers." 15 Johns. 338, 380. (3) The Federal courts are not bound by decisions of State courts upon questions of general commercial law. Such is the established doctrine of this court. Swift v. Tyson, 16 Pet. 1; Watson v. Tarpley, 18 How. 520; Carpenter v. Prov. Ins. Co., 16 Pet. 511. (4) A creditor who takes a negotiable note, before maturity, so indorsed that he becomes a party to the instrument, as collateral security for a pre-existing debt, in consideration of an extension of time to the debtor, actually granted, is, according to the law-merchant, a holder for value, and his rights as such are not affected by equities between antecedent parties of which he had no notice. Goodman v. Simonds, 20 How. 343; 1 Pars. on Notes, etc., 221-228; Story on Prom. Notes, § 195, notes (7th ed.), by Thorndike; 1 Daniel on Neg. Inst. (2d ed.), §§ 820, 832, and notes; Red. & Big. Lead. Cas. on Bills and Notes, 186-217, and notes. (5) A National bank, at the request of its debtor,gave further time in consideration of the transfer, before maturity, of a negotiable note, as collateral security, and in consideration also of the payment, in advance, of usurious interest, for the period of extension. The note was so indorsed as to make the bank a party to the instrument, responsible for its due presentation, and for due notice of non-payment. The consideration was in part legal, in part vicious. The former was itself sufficient to sustain the contract of extension and transfer, and to constitute the bank a holder for value. While the bank was subject to the penalties denounced by law for taking usurious interest, the statute under which it was organized had not declared the contract of indorsement void. No such penalty being prescribed, the courts could not superadd it. De Wolf v. Johnson, 10 Wheat. 367; Barnet v. National Bank, 98 U. S. 558; 91 id. 29. Judgment of U. S. Circ. Ct., M. D. Alabama, affirmed. Outes, plaintiff in error, v. First National Bank of Montgomery. Opinion by Harlan, J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

OCTOBER, 1879.

DEED-GRANT OF PRESCRIPTIVE RIGHTS BY-FLOWAGE-REFERENCE TO ANCIENT DEEDS.-A deed conveyed a mill with the water-power and all the rights, privileges and appurtenances thereunto belonging. The owners of the mill, including the grantor, had acquired a prescriptive right to flow plaintiff's land to a certain height. Reference was made in the deed, for a description of the rights and privileges intended to be conveyed, to ancient deeds, which restricted the flowage of plaintiff's land to a much less height than that

which had been acquired by prescription. Held, that the grantee took under his deed the prescriptive right to flow, and was not limited to the height of flow mentioned in the ancient deeds. The granting clause of the deed conveyed to the grantee all the water-rights and privileges which the grantor had, whether acquired by deed or by prescription. And such grant is not impaired or cut down by the subsequent reference to the ancient deeds under which the grantor acquired his record title to the premises. A prior grant will not be restricted by a subsequent reference to other deeds, unless the language used, construed in connection with the surrounding circumstances, clearly shows that the intention of the parties was that the reference should operate as a restriction of the grant. Melvin v. Proprietors of Locks and Canals, 5 Metc. 15; Hastings v. Hastings, 110 Mass. 280; Ray v. Fletcher, 12 Cush. 202. Daniels v. Citizens' Savings Institution. Opinion by Morton, J.

FIXTURES-BOILER IN SECTIONS NOT ATTACHED TO BUILDING- MORTGAGOR AND MORTGAGEE-NOTICE.

A boiler in a factory was inclosed in a brick casing built for the purpose. It consisted of eighteen sections, which rested of their own weight on an iron plate, without screws or attachments, and nowhere touched the sides or ends of the brick casing or iron plates which were above. Water pipes or nipples, connecting said sections with a drum on the outside of the casing, passed through holes cut in the sides of the casing, and by unscrewing these pipes they might be removed singly or all together with the drum. Steam pipes connected said sections and a drum on the outside of the casing above the water pipes and were removed in the same manner. The sections of the boiler could be removed without disturbing the brick work by which it was supported and encased. The boiler, in connection with the steam engine, shafting, pulleys, belts and machiney, was used and operated by the owner of the factory in his business as a machinist. The boiler was connected with the engine by pipes such as are commonly used for that purpose, and was relied upon to furnish the only motive power to operate the machinery in said factory. This boiler had been placed in the factory by the defendant under an agreement between the defendant and the owner of the factory, that it was to remain the personal property of defendant until paid for. Such owner afterward mortgaged the factory, the mortgage in terms including the boiler to plaintiff, which had no knowledge of the agreement mentioned. Held, that as to plaintiff the boiler became a part of the realty and passed to the plaintiff by its mortgage. McLaughlin v. Nash, 14 Allen, 136; Pierce v. George, 108 Mass. 78; McConnell v. Blood, 123 id. 47. The fact that the sections of the boiler could be removed without disturbing the brickwork by which it was supported and encased was immaterial. The boiler as a whole had become a part of the realty. The agreement would not bind or affect a vendee or mortgagee without notice. Notwithstanding such agreement, the property would pass to such vendee or mortgagee as a part of the realty. Hunt v. Bay State Iron Co., 97 Mass. 279; Thompson v. Vinton, 121 id. 139. Southbridge Savings Bank v. Exeter Machine Works. Opinion by Morton, J.

PROMISSORY NOTE -WHAT IS NOTE PAYABLE IN THE ALTERNATIVE.-An unnegotiable instrument for the payment of money was made payable to "the trustees of the Methodist Episcopal Church or their collector." This instrument was given by defendant to the trustees of the Methodist Episcopal Church of Great Barrington, of which church he was a member. Held, that the instrument was a promissory note. Though it purported to be payable to the trustees of the Methodist Episcopal Church or their collector, the payee was not, therefore, uncertain, and the instru

ment did not come within the class of cases in which instruments otherwise in the form of promissory notes are held not to be promissory notes because made payable in the alternative to either of two persons named. Osgood v. Pearsons, 4 Gray, 455. In the case at bar, it is evident that "their collector" was merely a person authorized by the payee to receive the money in its behalf. Noxon v. Smith. Opinion by Soule, J.

IOWA SUPREME COURT ABSTRACT.

DECEMBER, 1879.

CIVIL DAMAGE LAW-DEFENDANT NOT LIABLE FOR INTOXICATION NOT CAUSED BY HIM.-In an action under the civil damage law the injury to plaintiff was claimed to be caused by a series of sales of intoxicating liquor by defendant to her husband, extending through a considerable period of time. The court charged the jury thus: "If you find from the evidence that the plaintiff has been damaged by the intoxication of her husband within the time stated in the petition; that such intoxication was on some occasions caused or contributed to by defendant, and on other occasions his intoxication was not caused or contributed to by the defendant, then, if you can do so from the evidence, you should apportion her entire damages so as to find only against the defendant for damages sustained by her, which were caused or contributed to by him; but if you cannot, from the evidence, separate the damages sustained by the plaintiff, caused or contributed to by defendant, then she will be entitled to recover for all damages that the evidence shows that she has sustained." Held, error. The defendant was not liable for damages to plaintiff not contributed to by him. Huggins v. Kavanagh. Opinion by Seevers, J.

DAMAGES - BREACH OF CONTRACT FOR CONSTRUCTION OF ARTICLE.- Defendant ordered from plaintiff a certain scale which was to be built at a specified price. Before any act had been done under the order, he countermanded it. Held, that plaintiff could not by partly building the scale thereafter and shipping it to defendant recover the contract price, even though defendant prevented the completion of the scales. The rule in such cases is that where every thing has been done by the vendor which he is required by his contract to do, and the manufactured property in its completed condition is tendered to the purchaser and he refuses to receive it, and it is held by the vendor for the purchaser, the vendor may recover the contract price. The result of the judgment in such cases would be to vest in the purchaser the title to the property. But where, as in the case of manufactured articles, something remains to be done by the vendor which requires the co-operation of the purchaser, and the purchaser refuses to perform, the contract price cannot be recovered. Moline Scale Co. v. Beed. Opinion by Rothrock, J.

SURETYSHIP—SURETY SIGNING ON CONDITION NOT COMPLIED WITH, NOT LIABLE.-Three sureties signed a non-negotiable note on condition that a fourth person who was named to them should also sign. The person named did not sign, but another person did, he knowing nothing of the condition. Held, that the condition not being fulfilled as to the three sureties, they were released from liability, and the last surety having signed under the belief that the others were liable, was also released from liability. Where a negotiable note is delivered by the principal, it is, to say the least, doubtful whether the payees are bound to take notice of his authority. Passumpsic Bank v. Goss, 31 Vt. 315; Farmers, etc., v. Humphrey, 36 id. 554; Smith v. Moberly, 10 B. Monr. 269; Bank of Missouri v. Phillips,

17 Mo. 30. But if they are, this doctrine is not applicable to a case where the note is not negotiable. There has been a long line of decisions to the effect that where the obligee in an official bond receives it from one of the obligors he has no right to assume that the co-obligors signed it without conditions. See Pepper v. State, 22 Ind. 411, and cases cited. While cases arising upon official bonds may not be regarded as strictly in point, the principle involved is very nearly the same. Besides, cases are not wanting which have arisen upon non-negotiable instruments for the repayment of money. People v. Bostwick, 32 N. Y. 415; Ayres v. Milroy, 53 Mo. 516. In the latter case the court, while recognizing the rule that sureties who sign a negotiable instrument and leave it in the hands of the principal, who delivers it, cannot be heard to say that they signed it upon conditions which were not fulfilled, held that it had no application to instruments that were not negotiable. They say that "in making this line of defense there is a clear distinction recognized between bonds or other instruments that are not negotiable and those which are negotiable." Daniels v. Gower. Opinion by Adams, J.

MINNESOTA SUPREME COURT ABSTRACT. NOVEMBER 26, 1879.

CONSIDERATION-LICENSE TO SELL UNPROFITABLE PATENTED ARTICLE.-A license to sell a patented article, if the patent is valid, is a sufficient consideration for a promise to pay for such license even though the patented article may not be of such superior utility as to make the sale profitable. Where it is sought to impeach a contract as without consideration on the ground that the consideration was the grant of a right to sell a patented article, and that the article is useless, it must be shown that it is useless in the sense that will avoid the patent. Rowe v. Blanchard, 18 Wis. 441; Lester v. Palmer, 4 Allen, 145; Dickinson v. Hall, 14 Pick. 217. The patent act allows a patent to issue only for a "new and useful art, ** * machine," etc. Judge Story, in Bedford v. Hunt, 1 Mason, 302, says: "By useful invention in the statutes is meant such a one as may be applied to some beneficial use in society, in contradistinction to one which is injurious to the morals, the health, or the good order of society. It is not necessary to establish that the invention is of such general utility as to supersede all other inventions now in practice to accomplish the same purpose. It is sufficient that it has no mischievous or noxious tendency; that it may be applied to practical uses, and that so far as it is applied it is salutary. If its practical utility be very limited it will follow that it will be of little or no profit to the inventor, and if it be trifling it will sink into utter neglect. The law, however, does not look to the degree of utility; it simply requires that it should be capable of use, and that the use be such as sound morals do not discountenance or prohibit." See also Lowell v. Lewis, 1 Mason, 182; Rowe v. Blanchard, ante. Wilson, Van Sann & Co. v. Hentges. Opinion by Gilfillan, C. J. RAILROADS

STATUTORY REQUIREMENTS AS TO FENCING LIABILITY FOR KILLING CATTLE TRESPASS

ING. Statutes, requiring railroad companies to fence their roads, are police regulations designed for the protection of all, and not merely rules for constructing division fences between adjoining owners, for neglect of which only an adjoining owner may complain. Accordingly, where a cow strayed on to the lands of one not her owner, adjoining a railroad which was not fenced, and from there on to the railroad track where she was killed, held, that the fact that the cow was a trespasser when she passed to the track was no defense in an action by her owner against the railroad company

for her loss. See Corwin v. N. Y. & E. R. Co., 13 N. Y. 42; Shepard v. B., N. Y. & E. R. Co., 35 id. 641; Browne v. P. H. & F. R. Co., 12 Gray, 55; Ind. & Cin. R. Co. v. Townsend, 10 Ind. 38; Spence v. C. & N. W. R. Co., 25 Iowa, 139; Stewart v. B. & M. R. Co., 32 id. 561. Any person sustaining damage in consequence of a violation by the company of the statute may recover. Gillam v. Sioux City & St. Paul R. Co. Opinion by Gilfillan, J

CRIMINAL LAW.

BASTARDY - EVIDENCE IN, NEED NOT BE BEYOND A REASONABLE DOUBT.— In a bastardy case the court below denied a request to charge the jury that they should not find against respondent below unless the testimony satisfied them beyond a reasonable doubt of his guilt, and did charge them that they might be satisfied by a clear preponderance of evidence. Held, no error. The nature of these proceedings was explained in Cross v. People, 8 Mich. 113, as not criminal in the proper sense of the term, but special and peculiar. The judgment, if it can be properly called a judgment, involves none but civil consequences. The rule holding it necessary to establish misconduct beyond a reasonable doubt is not one which needs any extension. It is very proper when a person is subjected to criminal punishment, and is well rooted in criminal jurisprudence. But it is the nature of the prosecution, and not the character of the act, which authorizes its application. It was held in Elliott v. Van Buren, 33 Mich. 49, that where a criminal act came in controversy in a civil cause the rule did not apply. Michigan Supreme Court, October 30, 1879. Seman v. People. Opinion by Campbell, C. J.

BURGLARY -PROOF OF LARCENY WHEN WARRANTING GENERAL VERDICT.- On trial on indictment charging the respondents with breaking and entering "the store-house and depot" of a railroad company in the night-time, with intent to steal, and with then and there stealing, etc., the jury found a general verdict of guilty, and respondents moved in arrest, for that to break and enter a railroad depot as charged was not burglary; but the motion was overruled and respondents sentenced. Held, that as the indictment was sufficient for the crime of larceny, and the sentence such as is prescribed by statute for that offense, the motion was properly overruled. The court remarked: In State v. Wheeler, 35 Vt. 261, the Supreme Court, Peck, J., decided that when there was a general conviction on four counts, and the fourth count for another and distinct offense, and no proper evidence to warrant a conviction on that count, the court would not set aside the conviction when it was obvious "that the respondent was not in danger of a more severe sentence than he would have been exposed to if he had been acquitted" on the counts not sustained by the evidence; and of like import are the cases of State v. Bugbee, 22 Vt. 32; State v. Butler, 17 id. 145; and State v. Roe, 12 id. 93. Vermont Supreme Court, October, 1878. State v. Bishop and St. Clair. Opinion by Redfield, J. (To appear in 51 Vt. Rep.)

FORMER ACQUITTAL-WHAT DOES NOT CONSTITUTE. -Defendant had been tried and acquitted on a charge of "killing swine with intent to injure the owner." He was thereafter indicted for "wantonly killing" the same swine. Held, that he could not plead his former acquittal in bar of the second proceeding. The court say: In autrefois acquit it is necessary that the prisoner could have been convicted on the first indictment of the offense charged in the second. The Supreme Court of Mississippi say: "When the verdict of a jury amounts to an acquittal from the offense specially charged in the indictment it will bar another prosecution for the

same offense." Mormon v. State, 24 Miss. 54. In the case of State v. Revels, Busbee (N. C.) 200, "a person was indicted for stealing a sheep, the property of A, and acquitted on the ground that the owner was unknown. He was then again indicted for the same offense, the sheep being charged to be the property of some one to the jurors unknown. Held, the former acquittal was not a bar to a conviction upon the second indictment." The rule seems to be settled that a former trial is not a bar unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment. Burns v. People, 1 Park. 182; Price v. State, 19 Ohio, 423; Cone v. Wade, 17 Pick. 395; Cone v. Roby, 12 id. 496; State v. Birmingham, Busbee's L. (N. C.) 120; Roberts v. State, 18 Ga. 8; Whart., §§ 563, 565, 566. The same doctrine is declared in Thomas v. State, 40 Tex. 36, and Vestal v. State, 3 Tex. Ct. App. 648. Texas Court of Appeals, November 5, 1879. Irwin v. State of Texas. Opinion by Ector, P. J.

He ac

TRIAL OPPRESSIVE ACTION OF COURT GROUND FOR REVERSING VERDICT.—In a trial for adultery the jury rendered a verdict of guilty and recommended the defendant to the mercy of the court. The trial judge then gave the defendant to understand that he must submit to a severe sentence or withdraw his plea of not guilty; enter a plea of guilty and immediately pay $400, and estop himself from bringing error. cepted the last alternative, and went through the form of withdrawing the plea on which he had been tried and convicted, and of pleading guilty, and paid in the $400. Held, that this proceeding was error, for which the judgment should be reversed. The court thus comment upon it: When a convicted person is brought up for sentence he has rights still, and it is specially incumbent on the judge to take care that they are fully observed and protected. No sort of pressure can be permitted to bring the party to forego any right or advantage, however slight. The law will not suffer the least weight to be put in the scale against him, and any attempt cannot fail to be reprobated. Standing at the bar to receive judgment, the law surrounds him with its protecting principles, and intends that his sentence shall be the reflection of its justice, and as far as possible, free from all taint of human frailty. Michigan Supreme Court, October 14, 1879. O'Hara v. People. Opinion by Graves, J.

FINANCIAL LAW.

BILL OF EXCHANGE—WHEN IT DOES NOT OPERATE AS ASSIGNMENT OF FUND DRAWN ON. Defendant, a railroad company, was indebted to the firm R. G. B. & Co. for coal. On the 21st of February, 1877, the firm made their order on defendant and directed to it, reading thus: "March 5th, after date, pay to the order of D. Williams & Son twelve hundred dollars, value received, and charge the same to account of, with exchange. R. G. Brock & Co." The indebtedness of defendant at the time for coal delivered was $653.76. Subsequently coal to the amount of $546.24 was delivered. This order came into the hands of plaintiff for value and on the 5th of March defendant was notified that plaintiff owned the same. Held, that the order did not operate as an assignment of the account of the firm after it was made, but was at most proof tending but insufficient in itself to show such assignment. The court lay down these principles: (1) That a bill of exchange drawn upon a general or particular fund operates as an assignment to the payee of a debt due from the drawee to the drawer when the bill has been accepted by the drawee; (2) that a bill of exchange drawn upon a general fund, but not accepted by the drawee, does not operate as an assignment of the fund,

but is mere evidence of an assignment, and, with other circumstances showing that such was the intention, will vest in the holder an exclusive claim to the fund, and bind it in the hands of the drawee after notice; (3) that an order upon the whole of a particular fund, though not accepted, will operate as an equitable assigument of the fund, and bind it in the hands of the drawee after notice, but that such order does not possess the property of negotiability. Citing Sands v. Matthews, 27 Ala. 399; Harrison v. Williamson, 2 Edw. 430; Wheeler v. Stone, 4 Gill, 38; Peyton v. Hallett, 1 Cai. 363; McMenomy v. Ferrers, 3 Johns. 72; Cowperthwaite v. Sheffield, 1 Sandf. 416; Walker v. Mauro, 18 Mo. 564; Robbins v. Bacon, 3 Me. 346; Mandeville v. Welch, 5 Wheat. 286; Bank of Commerce v. Bogy, 44 Mo. 1. Iowa Sup. Ct., December 2, 1879. First Nat. Bank of Canton v. Dubuque S. W. Railway Co. Opinion by Day, J.

CONSIDERATION -NOTES ON RENEWAL OF NOTES GIVEN TO COMPOUND A FELONY.- A note and mortgage given in lieu of notes and mortgage that were given in part to suppress a prosecution for forgery, are not enforceable by an assignee of the payee who took for value, but with notice of the illegality of the consideration. The court say: The consideration for the original notes being in part illegal, it cannot be questioned but that the notes themselves were invalid while in the hands of the original payees. See Streit & Co. v. Sanborn, 47 Vt. 702; Hinesburgh v. Sumner, 9 id. 23; Bowen v. Buck, 28 id. 308; Smith v. Pinney, 32 id. 282; Converse v. Foster, id. 828. Contracts made in the composition of felony are void, and courts. will neither aid in enforcing them, nor in the recovery of money paid in the performance of them. Says Ames, J., in Atwood v. Fisk, 101 Mass. 363: "The meaning of the familiar maxim, 'In pari delicto potior est conditio defendentis,' is simply that the law leaves the parties exactly where they stood; not that it prefers the defendant to the plaintiff, but that it will not recognize a right of action founded on the illegal contract in favor of either party against the other. They must settle their own questions, in such cases, without the aid of the courts." Also, Laing v. McCall, 50 Vt. 657. It has been held by repeated decisions that a note given as a substitute for, or in renewal of, a note that was illegal, is also invalid between the original parties. Preston v. Jackson, 2 Stark. 212; Hay v. Ayling, 16 Q. B. 423; Holden v. Cosgrove, 12 Gray, 216; Chenery v. Barker, 12 id. 345; 1 Daniel Negot. Insts. 163. It was claimed that the holders of the notes did not have actual knowledge of the illegality of the notes, but the facts disclosed in the evidence were sufficient to have put them on inquiry. The court remark that this was equivalent to actual notice of such facts as they might be presumed to have learned on reasonable inquiry, and therefore sufficient to charge them with actual notice of the illegality of the notes. Roth v. Colvin, 32 Vt. 125; Gould v. Stevens, 43 id. 125; McDaniels v. Flower Brook Mfg. Co., 22 id. 274; Sanford v. Norton, 14 id. 234. Vermont Supreme Court, February Term, 1879. Pierce v. Kibbe. Opinion by Dunton, J. (To appear in 51 Vermont Reports.)

INDORSEMENT-NOTICE OF DISHONOR NEGLIGENTLY SENT SUFFICIENT IF RECEIVED SEASONABLY.-Notice of dishonor of a promissory note, however directed and posted, is seasonable to charge an indorser, if sent so as to be received by the same mail by which it would have been received if properly directed and posted. Thus, where the notice was posted on the day of maturity, addressed to E., where the indorser had formerly resided, and thence forwarded on the following day by the mail of the same hour to C., where the indorser then resided, and where he received it, it was held that the note was seasonable. The court say: Where the law requires notice to be delivered to the