March, 1875, the defendants entered into a contract with him by which they agreed to purchase all the milk which plaintiff should deliver from his farm during the season of 1875, at one cent per pound. That in pursuance of said agreement he had delivered to defendants prior to September, 1875, 56715 lbs. of milk, for which he had received on account $239.19, and that defendants then refused to receive any more milk and to be further bound by their contract. He asked to recover the balance due under the contract.

The defendant Bacon answered, denying that he ever made the alleged contract with plaintiff, or any other contract for the purchase of milk. Hazen was in default for answer.

At the trial evidence was introduced tending to show that in the latter part of March, 1875, Bacon and Hazen came to plaintiff and proposed to purchase his milk on the terms stated in his petition, and that shortly thereafter plaintiff called on Hazen and notified him of his acceptance of the proposition. It was further proved, and not disputed, that prior to the middle of May, Hazen told plaintiff that Bacon had sold out all his interest in this and other contracts to defendants, Braman, Horr & Warner, and that plaintiff, at the request of Hazen, then signed a written contract thereby agreeing to deliver all his milk during the season of 1875 to Hazen, Braman, Horr & Warner, and delivered the paper to Hazen. It was not pretended by any one that Bacon was a party named in this agreement.

The defendant Bacon asked the court to charge the jury that if they found that such a contract was made between plaintiff and Hazen, Braman, Horr & Warner, their verdict must be for the defendant. This the court refused to do for the reason, among other things, that the contract in evidence was signed by one party only; and did charge the jury that if Bacon did make the original agreement it could not be rescinded without a consideration. The jury thereupon found for the plaintiff; a motion for a new trial was overruled and judgment was rendered upon the verdict. This judgment was afterwards affirmed in the District Court.

H. & L. H. Goodwin for plaintiff in error.
Taylor & Phinney for defendants in error.
LONGWORTH, J.

It might perhaps be enough to say of this case that a recovery has been had for breach of a different, contract from that sued upon. It is a well established principle, however, that where parties choose to try their case upon a supposed issue not in reality raised by the pleadings, and the case is fairly tried, submitted and decided upon such supposed issue, it is too late to urge in a court of errors that the issue tried was not made by the pleadings. See Larimore v. Well's Adm'r, 29th Ohio St. 13, 17.

If we treat the issue to have been as announced by the court below, we can see no valid reason for refusing to charge as requested by the defendant. The substituted contract was not

one of that class which must by law be in writing, and the fact that the paper given to Hazen was signed by one party only, or not signed at all, would in no way affect the validity of the contract. That such an agreement was made is undisputed. That Hazen was authorized to contract for Braman, Horr & Warner does not appear from the evidence, but is alleged by plaintiff in his petition, which declares upon the contract to which Braman, Horr & Warner were parties. It cannot be presumed in his favor that his own allegations are untrue.

Like other contracts the one in question requires a consideration to support its validity, but that consideration appears in the release of one party and the substitution of another. The existence of the contract being established the consideration is self-evident. As a state

ment of an abstract proposition the charge of the court was correct, but as applied to the case its effect was to instruct the jury that the substitution of the latter for the former contract was of no validity unless accompanied by a consideration outside of the release and substitution itself.

It is contended that the exceptions to the refusal to give the charges asked, and to the charge as given being general, this court cannot examine the errors complained of. We regard this proposition as untenable. The whole case is before us, and it is apparent that the jury were misled by erroneous instructions. See Baker v. Pendigrast, 32 Ohio St. 495. Judgment re ersed and cause remanded. [This case will appear in 37 O. S.1

A justice of the peace has no jurisdiction of an action on the bond of a constable.

Error to the District Court of Lawrence County.

On September 17, 1875, a suit was brought before W. O. Woods, a justice of the peace of Perry Township, Lawrence County, upon the official bond of M. T. Hornbuckle. The bond, dated April 9, 1875, is in the penal sum of one thousand dollars, payable to the State of Ohio, recites the election of Hornbuckle as constable of Upper Township, Lawrence County, is conditioned as required by statute (1 S. &. C. 802, § 184; Rev. Stats. § 1516), and is signed by Hornbuckle as principal and James M. Kelley and Thomas Golden as sureties. The action was in the name of the State of Ohio for the use of Lewis Smith, and against Hornbuckle, Kelly and Golden, and the ground of recovery alleged in the bill of particulars was, that Hornbuckle, having in his hands, as such constable of Upper Township, an execution in favor of said Smith against Peter Schlosser, did, on September 9, 1875, make a false re

turn thereof. The return and its falsity, as well
as the bond, are 'set forth in the bill of particu.
lars. Judgment was rendered in favor of the
plaintiff and against the defendants, for $47.63,
and costs, and that judgment was affirmed in the
district court. This petition in error was filed
in this court, on leave, by Hornbuckle, Kelly
and Golden, and the question is whether the jus-
tice of the peace had jurisdiction of the action.
W. S. Forgey, for plaintiff in error.

O. S. Collier, for defendant in error.
BY THE COURT.

Justices of the peace have exclusive original jurisdiction of any sum not exceeding one hundred dollars, and concurrent jurisdiction with the court of common pleas in any sum over one hundred dollars and not exceeding three hundred dollars, except as otherwise provided by statute. 1 S. & C. 770; Rev. Stats. 585. They are vested with jurisdiction, "to proceed against constables failing to make return, making false return, or failing to pay over money collected on execution issued by such justice." 70 Ohio L. 180, Rev. Stats. § 583. On the judgment so rendered, there is no stay. 68 Ohio L. 75; Rev. Stats. § 6652. But the statute further provides, that "justices of the peace shall not have cognizance * in actions against

justices of the peace or other officers for misconduct in office, except in the cases provided for in this act" (1 S. & C. 772, § 10, Rev. Stats. § 591), the exception, as a plied to this case, being that above stated. In view of these statutory provisions, a justice of the peace has no jurisdiction of an action upon the bonds of a constable. Judgment reversed.

[This case will appear in 37 O. S.]

Digest of Decisions.

MARYLAND.

(Court of Appeals.)

BROWN v. RENSHAW. April Term, 1881.

1. Uses-Use upon Estate of Bargaince-Equity, -A use cannot be limited to arise out of the estate of a bargainee to a third person. If A. bargains and sells in fee to B. to the use of A., or to the use of any other person, for life or in fee, the limitation by way of use is void under the statute of uses; it will, however, be supported as a trust in chancery.

2. Ibid.-Limitation to Bargainee " To his and their own Proper Use and Behoof."-The words "to his and their proper use and behoof," following the words of "limitation to the bargainee and his heirs," in a ed of bargain and sale, have no particular maning or effect in determining either the extent of the interest conveyed or the nature or quality of the estate to be vested.

3. Ibid.-Feoffment to A. and his heirs, to his own

Use-A. to stand seised to Use-Equity.-A feoffment to A. and his heirs, to the use of him and his heirs, gives him the legal estate, under the statute of uses. An expressed declaration that he should stand seised to the use of another would only have an equitable operation.

4. Ibid.-Rule in Shelly's Case-Equitable Estate Power of Appointment.-The rule in Shelly's case applies to equitable as well as to legal estates. Where an estate (a second use) is limited to A. for life, with power of appointment, and, in default of appointment, to his right heirs, the limitation being an equitable one, the remainder limited to the right heirs will become an executed fee in the taker for life, subject to be divested by the exercise of the power.

5. lbid.-Equitable, Executed Fee, with power of Appointment-Extinguishment of Power.-Where the owner of an equitable, executed fee, with power of appointment, conveys the property in fee simple, with covenants of general warranty, the power is thereby extinguished.

MAINE.

(Supreme Judicial Court.)

ABBOTT v. 'HOLWAY, ADM'R. June 8, 1881.

1. Deed-Feoffment in Futuro.-Where a deed contains a provision that it is not to take effect and operate as a conveyance until the grantor's decease, and not then if the grantee does not survive him, but if the grantee do survive, it is to convey the premises in fee simple,-it will be upheld as creating a feoffment to commence in futuro, and will give the estate in fee simple to the grantee on the happening of the contingency named; the execution and record of the deed operate in the same manner as a livery seisin at the grantor's decease.

2. Ibid-Devise.-Such a deed is something more than a devise in a will; it conveys to the grantee a contingent right, which, unlike the interest of a devise in the lifetime of a testator, cannot be taken from him.

3. Ibid.-Estate in Remainder-Waste.-Such a deed negatives the idea of an estate in remainder for the benefit of the grantee, and a reservation of a life estate to the grantor. And the grantee takes no such an interest in the premises during the lifetime of the grantor as will enable him to maintain an action on the case in the nature of waste against the administrator of the grantor for acts done by him in his lifetime after giving the deed.

CARLTON V. CARLTON. March 5, 1881. Contract-Divorce Action against Husband on Contract made before Marriage.-Can a woman who is divorced maintain an action against her former husband for personal services performed for him before their marriage? We think she can. "A woman, having property, is not deprived of any part of it by her marriage." Such is the

statute law of this State. R. S. c. 61, § 2. The word "property" includes choses in action as well as choses in possession. It includes money due as well as money possessed. It includes money due for personal services as well as money due for anything else. In its broadest sense it includes everything which goes to make one's wealth or estate. We cannot doubt that this is the sense in which it is used in this statute. It follows, therefore, that a woman, by her marriage, can no more be deprived of money due to her than she can be of money actually possessed by her; of money due from the man she marries, no more than of money due from any one else. It may be that while the marriage relation subsists no action of any kind can be maintained by her against her husband. But when this relation ceases, this impediment is removed, and no reason is perceived why she cannot then sue him as well as any one else. We think she can.

JEWELL V. HARDING. March 7, 1881. Trust-Deed not under Seal-Ejectment, by Equitable Grantor-Mesne Profits-Demand.-1. An inAn instrument purporting to be a deed, not under seal, will not operate as a declaration of a dry, naked, or passive trust, such as will prevent a recovery for possession in an action at law by the trustee against the cestui que trust. Such an instrument is an equitable, but not a legal deed. In equity the seller can be made to reform the deed unless sufficient cause is shown to excuse it.

2. In a real action by the equitable grantor against his grantee, mesne profits are not recoverable, the grantee being in possession by permission of the grantor, without any agreement or expectation to pay rent.

3. The action for possession is maintainable without a demand for possession. Commencing the suit is demand enough.

Life Insurance-Married Women.-A valid policy of life insurance is assignable like an ordinary chose in action. It is not necessary that the assighee shall have an insurable interest in the life of the insured in order to recover the amount of the insurance.

Where one honestly and bona fide takes out a policy on his life, payable to a person who has no interest in the life or the policy is assigned to such person, the beneficiary or assignee may hold and enforce it if it was valid in its inception and not procured or the assignment made as a contrivance to avoid the statute against wagering policies.

One K. in 1846 procured a policy on his life to be issued to plaintiff as trustee for H., the wife of K. H. afterwards died leaving children. K.

re-married, and at his request plaintiff assigned the policy to the second wife. Held. That upon the death of H., Chap. 80, Laws of 1840 ceased to operate on the policy and her interest therein went to her husband who reduced it to possession by causing its assignment, and that the insurance not being made payable to the children in any event they could claim no interest in it.

PIER V. HANMORE. October 4, 1881. Corporations-Trustees. A false statement in the annual report of a manufacturing &c. corporation, renders liable only the trustees who signed the report knowing it to be false.

To charge the officer with the penalty imposed for such offense, some facts or circumstances must be shown indicating that he signed the report in bad faith, wilfully or for some fraudulent purpose, and not ignorantly or inadvertently.

A statement in a report that a certain amount of capital has been paid in, must be regarded as a representation that such capital has been paid in, in cash, unless it is specified that such payment consists of the issue of stock for property purchased.

LAWRENCE V. MILLER. October 4, 1881. Contract-Tender.-Where there is a willingness and ability to perform there need be no actual tender to do so if performance has been waived or prevented; it may be dispensed with by some positive act or declaration.

A contract for the sale of land provided for the payment of $2,000 on the day it was made, but specified no time for performance of any other part of the agreement. The payment was made. The parties met and the vendor produced and laid on the table a deed, and told the vendee he was ready, but at the vendee's request gave him further time. They again met and the vendor again produced the deed, but the vendee was not ready. Held, That the vendor did all that could be required of him to put the vendee in default; that the oral agreement to meet as they did, and sential part of the contract, and that the vendor, the extension of time, could be regarded as an eshaving come rightfully by the money paid on the contract, committed no breach and failed in no duty to the vendee, was entitled to retain it.

HAVEMEYER v. HAVEMEYER ET AL. October 4, 1881.

Contract-Agency.-Plaintiff, through her agent, H., made an agreement with defendants in relation to selling certain shares of stock which. they all held, and which constituted a majority of such stock; the agreement providing that the stock should all be sold together, and no separate sale should be made by any of the parties. H. had previously negotiated with one P., to whom on the same day, but before the agreement was made, he wrote, offering to sell his stock and assist P. in getting more, and stating that he de

sired to act in the interest of P. and not in the interest of defendants. This was unknown to defendants when the agreement was made. In an action for a breach of the agreement, Held, that plaintiff was responsible for the acts of H., and chargeable with his bad faith, and that such acts furnished a defense to the action.

BYRNES V. BAER ET AL. October 4, 1881. Wills. A will passes all the real estate the testator was entitled to devise at the time of his death.

A testator directed the residue of his estate to be invested and the income paid to his wife and daughter during their lives. The daughter, claiming, that he died intestate as to real estate acquired by him after making the will, sold the same, which was purchased from her grantees by plaintiff. In an action for breach of contract of sale of such lands, Held, That plaintiff could not convey a valid title.

UNITED STATES COURTS.

ROBINSON, MCLEOD & Co. v. MEMPHIS & CHARLESTON R. Co. (Circuit Court, W. D. Tennessee, E. D. October 24, 1881.)

1. Fraudulent Bill of Lading-Common Carrier -Negotiable Instruments-Collateral Security-Factor's Advances-Innocent Holder-Estoppal-Principal and Agent.-The freight agent of a railroad company, by the procurement of a cotton buyer, signed a bill of lading for 32 bales of cotton which were not on hand, and were never delivered to the railroad company or any agent for it. The plaintiffs paid a draft for the price of the cotton on the faith of the bill of lading attached to it and indorsed to them, and never having received the cotton sued the railroad company for its non-delivery. Held, that the carrier was not estopped to show that no cotton was in fact delivered for transportation; that the agent had no authority, real or apparent, to sign a receipt or bill of lading until actual delivery of the cotton, and the company was not liable.

2. Same Subject-Custom-Commercial Usage.Neither a general nor local custom to use bills of lading as collateral security for drafts drawn against the merchandise, can alter the rules of law governing the contract of the parties. This use of bills of lading is one in which the carrier has no interest, and he cannot be charged with an extraordinary liability dehors the contract for which he receives no compensation or indemnity, merely to assure other parties against loss by the fraudulent dealings of those who so use them. It is not in the interest of commerce to impose this liability upon the common carriers of the country;

3. Same Subject-Pleading-Actions-Who may Sue-Indorsee-Tennessee Code § 1967.-The indorsee of a bill of lading for value may not only sue for the goods, but he may, in his own name,

Conversion of personal property-Evidence.-1. In an action for the conversion of personal property, the defendant, under a general denial, may put in evidence any facts which disprove either plaintiff's title or a conversion by himself.

2. Thus, in this action or the conversion of moneys collected by defendant as plaintiff's agent, defendant was entitled, under a general denial, to show the contract of agency existing at the time of such collection and alleged conversion, for the purpose of showing his right to retain the money.

3. Where competent evidence offered in defence was rejected on the ground, not that it failed to make out a complete defence, but that it was incompetent, this court, on appeal, construes the offer liberally.

4. The circuit court may, in its discretion, permit an amendment of the answer on the trial, setting up a defence not already set up; and where such an amendment has been refused, not in the exercise of discretion, but on the ground of a want of power in the court to allow it, that may be ground of reversal.

5.

Under subdivision 3, 2656, Rev. St., where the plaintiff is a non-resident, the defendant may set up as a counter-claim any cause of action he may have against such non-resident; and where the action was in tort, for a conversion of moneys collected by defendant as plaintiff's agent, held, that it would not be an abuse of discretion, under the circumstances of the case, for the trial court to permit an amendment of the answer, setting up a counter-claim for plaintiff's breach of the contract of agency.

WHEELER & WILSON MANUF'G Co. v. TEETZLAFF.Filed October 18, 1881.

Contract of sale-Default in payment-Replevin.-1. A. delivers to B. a sewing machine under a contract for the sale thereof, by which title is not to pass to B. until full payment is made in specified instalments, and on default of any payment A. is to be at liberty to take the machine away at his option. Held:

(1) That A., on default in a payment, could not replevy the machine from B.'s possession without demand or notice of his option, and refusal by B. to surrender_it, especially when it had been suffered to remain in B.'s

possession for several months after the default, plaintiff claiming meanwhile that the payment was due.

(2) That the possession of the machine by B.'s wife, living with him as such, was B.'s possession.

(3) That, in the absence of any proof that B. was keeping out of the way to avoid notice and demand, a demand upon his wife, and her refusal to surrender the machine, and claim that it belonged to B., were not a demand upon and refusal and claim by B., unless she was especially authorized to act for him in that behalf, and the mere

fact that she had made all the previous payments is not

sufficient to establish such agency.

2. To maintain replevin plaintiff must have had the right of ossession at the commencement of the action; and where such action is in justice's court, the filing of the affidavit (which stands for the complaint) and the delivery of a warrant thereon by the justice to an officer

or other person, with intent to have it served, is the commencement of the action. Rev. St. 28 3731, 3733, 3739, 3742.

3. replevin for a sewing machine it appeared that, at the time of filing his affidavit for a warrant, plaintiff was in possession of the "head" of the machine, i. e., of the hole machine except the stand upon which the appar tus for sewing was placed; though he returned the "head" to defendant's possession before the warrant was served. Held, that the action would not lie.

4. A general denial in replevin is not such an asser