hope to be able to give in the next number of the LAW JOURNAL a digest of the most important decisions contained in the volume.

New York Practice Reports: By Nathan Howard, Jr. Vol. 38; No. 3. Albaný: William Gould & Son.

The most important cases contained in this monthly number of Howard's Reports are those of Ramsey v. Erie Railway Co., and People v. Albany and Susquehanna Railroad Co. The opinion in the first was delivered by Mr. Justice BALCOм at Special Term, and contains a very careful review of the practice in granting injunction orders and appointing receivers. The Judge incidentally urges the passage of a law preventing the granting of injunctions against corporations and their directors without previous notice. The opinion in the second of these cases was delivered by Mr. Justice E. DARWIN SMITH, and is mainly a review of the facts elicited at the trial before him of the question of the validity of the election of directors of the Albany and Susquehanna Railroad company. There is one other case-that of Wilbeck v. Holland, etc.— of considerable importance, in which the question arose as to the duty of an express company to deliver a package carried by them to the consignee at his residence. The General Term of the fourth district held - Mr. Justice ROSEKRANS delivering the opinion that such company were bound to use due diligence in ascertaining the residence of the consignee, and to deliver the package to him personally at his residence or elsewhere.

Titles to Real Estate in the State of New York: A Digested Compendium of Law, etc., for the use of Conveyancers and Students at Law. By J. W. Gerard, Jr. New York: Baker, Voorhis & Co. 1869.

This work, as the preface declares, "is intended to operate as a practical manual to facilitate the labors of the profession in the examination of titles, by having all matters connected therewith concentrated in one volume, and by affording a ready means for the instruction of students, clerks and other assistants of conveyancers."

A manual, as we understand it, is a hand-book, containing only the facts necessary or convenient to be understood in the department for which it is used. These should be stated in a clear but brief style and unincumbered by the reasoning from which they are deduced. They should be so arranged as to be certainly and readily accessible to any one at all acquainted with their subject. In a law manual, of course, authorities should be given for every statement. Mr. Gerard has in this volume collected together, from statute and report, a vast amount of matter concerning real estate. So far as we have discovered, his statements of principles are correct, and display not only industry but erudition and ability. But for every-day use in a lawyer's or conveyancer's office, we cannot see that this treatise is either more convenient or better than other works previously in existence. It contains too much for a manual; too little for a treatise on the law of real property. Its references to the Revised Statutes are wholly to the 5th edition, which, besides being out of date, is no more the Revised Statutes than are the session laws of the last legislature. It often goes beyond the requirements of its subject, as on pages 153 and 151 concerning contracts for the sale and purchase of land. It has other defects such as the omission of reference to local laws; as the mechanics' lien law of Rensselaer county, passed in 1865, and to the United States laws concerning the lien of official bonds. The index to the work is imperfect, and not full enough to be of value.

As a work for the use of the student it is excelled both by Kent and Washburn. In fact a manual book that is for use in the daily duties of the office presupposes an acquaintance with the principles of its subject matter that can only be gained from other sources.

The publishers have spared no pains in the make up of this book. In paper, printing and binding its equal in excellence we seldom meet.

1st Monday, General Term, Albany.

1st Monday, Circuit and Oyer and Terminer, Jefferson. 1st Monday, General Term, Rochester.

1st Monday, Circuit and Oyer and Terminer, Erie, Daniels.

2d Monday, Circuit and Oyer and Terminer, Dutchess, Barnard.

2d Monday, Circuit and Oyer and Terminer, Schuyler, Balcom.

2d Monday, Circuit and Oyer and Terminer, Genesee, Barker.

2d Tuesday, Circuit and Oyer and Terminer, Caldwell, Potter.

2d Tuesday, Special Term, Tioga, Parker.

3d Monday, Circuit and Oyer and Terminer, Westchester, Tappen.

3d Monday, Circuit and Oyer and Terminer, Schenectady, Rosekrans.

3d Tuesday, Special Term, Jefferson, Mullin. 4th Monday, Special Term, White Plains, Tappen. 4th Monday, Circuit and Oyer and Terminer, Yates, J. C. Smith.

4th Monday, Circuit and Oyer and Terminer, Herkimer, Mullin.

4th Tuesday, Special Term, Erie, Talcott.

Last Monday, Special Term, Monroe, Dwight.

Last Monday, Circuit and Oyer and Terminer, Tompkins, Parker.

Last Tuesday, Special Term, Albany, Miller.
Last Tuesday, Special Term, Cortland, Murray.

COURT OF APPEALS ABSTRACT. James P. Agand and another, Exrs., etc., v. John P. Ball, John Banker and Abram Myers.

This was an action on a joint and several promissory note signed by all the defendants. It was proved upon the trial that the defendants, Banker and Myers, were sureties for Ball upon the note in question, and they relied for their defense upon an usurious agreement made between Ball and the plaintiff's testator for an extension of the time of payment of the note. Held, that the rule is well settled that a subsequent agreement to pay usurious interest for the forbearance of an existing security will not invalidate such security, notwithstanding such agreement to extend is void. It appearing, upon the face of the note, that the defendants were all principals, it devolved upon Myers and Banker, in order to make their defense available, to show that the plaintiff's testator knew at the time he made the agreement for an extension that they were sureties. The rule with us is that an agreement to extend the time of payment, made between the creditor and the principal debtor, cannot operate as a discharge of the sureties, unless the creditor, at the time of the agreement, knew that the relation of principal and surety existed between the debtors.

Upon the trial the defendants offered to prove by the defendant Ball that plaintiff's testator had knowledge of the fact that defendants, Banker and Myers, signed the note as sureties, and put the following interrogatory to the witness: "Do you know whether the testator had knowledge of the fact that defendants, Banker and Myers, signed the note as your sureties?" Held, that the offer was properly rejected under section 399 of the Code; that to make an exception on account of the rejection of evidence available, the party should make his offer in such plain terms as leaves no doubt what was intended; that if the offer is open to two constructions he cannot, in a court of review, insist upon that construction most favorable to him unless it appear that it was so understood by the court which rejected the evidence.

John Kelly, Sheriff, etc., v. Corn Exchange Bank. Where an appeal was taken in August, 1868, from an order of the General Term affirming an order made at

Special Term, striking out portions of the complaint as irrelevant: Held, that at the time such order was not appealable, and that the amendment of section eleven, subdivision two of the Code, made in 1869, was only applicable to appeals from orders thereafter made.

Alexander Anderson, Admr., etc. v. William M. Parks. This was an action for the wrongful conversion of certain bonds. It appeared that the bonds had been stolen from plaintiff's intestate; that the defendant had received them in good faith, and in the usual course of business as a broker, and made advances on them to nearly their full value in the usual course of business, without any notice of defect in the title. Held, that such bonds were negotiable instruments, transferable by delivery, and that all the rules of law applicable to negotiable paper apply to them; that one who takes them before maturity in good faith, and for a valuable consideration, holds by title valid as against all the world; that the defendant had become a bona fide purchaser of the bonds to the extent of his advances upon them, and that plaintiff could not maintain his action without first tendering the amount of the advances and making a demand for them; and that the defendant, having a valid lien on the bonds to the extent of his title, had a right to sell them to reimburse himself; also, that a broker who receives and sells negotiable paper, in good faith, is entitled to the same protection as the party to whom he sells; that the rule applicable on the sale of ordinary chattels does not apply to negotiable instruments, and that therein this case is clearly distinguishable from that of Spraights v. Hawley, 39 N. Y. 441.

DIGEST OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF CONNECTICUT.*
INN-KEEPER.

Guest. - A person receiving transient accommodation at an inn, for which he is charged by the inn-keeper, is a guest, and entitled to all the rights of a guest, although he be not actually a traveler. Walling v. Potter.

INSURANCE.

1. Evidence: statements in policy. A plaintiff in a suit on a policy of insurance on the life of his wife, being charged by the defense with having obtained the insurance fraudulently, testified as a witness, and was asked on crossexamination, for the purpose of testing the accuracy of his memory, if he could tell the date of his subsequent marriage. The court allowed the inquiry for this purpose. Held, on motion for a new trial, that in respect to such an inquiry, depending for its propriety upon the circumstances of the case and not upon its relevancy, the judge might exercise his discretion. Kelsey v. Universal Life Ins. Co.

2. And held that, so far as the answer to the question might tend to prejudice his case with the jury, it was an objection for the witness to make, and not for his counsel. Ib.

3. In the application for the insurance, the wife had made certain written statements with regard to her good health. Held, that letters written and declarations made by her to third persons shortly before the application, in which she stated herself to be in bad health, were admissible in evidence against the plaintiff. Ib.

4. The policy contained the following provision, under the head of conditions and agreements: "That the statements in the application for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any fact relating to the health or circumstances of the insured affecting the interests of this company." Held, that the statements of the application were to be regarded as warranties. Ib.

5. Held, however, that whether regarded as warranties or only as representations, as they were material and untrue, they would equally avoid the policy. Ib.

* From J. Hooker, State Reporter, and to appear in vol. 35 Connecticut Reports.

6. Suit after time limited in policy. A policy of insurance contained a provision that no suit for the recovery of any claim on the policy should be sustainable in any court of law or chancery unless commenced within twelve months after the loss occurred. Where the amount due for a loss was attached by a creditor of the insured within twelve months, on a process of foreign attachment, and a suit of scire facias was brought against the company by the creditor after the expiration of twelve months, it was held that the original suit saved the claim from the limitation of the policy, and that the suit of scire facias was sustain

able. Harris v. Phænix Ins. Co.

7. The policy provided that the insured should, if required, submit to an examination under oath as to his loss, and that the loss should not be payable till such an examination had been submitted to. The insured filed the ordinary proofs of his loss, which were not satisfactory to the company, and they required a personal examination, and used due diligence to notify the insured of such requirement, but were unable to find him. Held, that the factorizing creditor stood in no better position than the insured, and that he could not recover the amount of the loss. Ib.

LEASE.

Re-entry.-A lease contained the following provision: "If said rent shall remain unpaid after the same shall become payable, the lease shall thereupon expire and terminate, and the lessor may, at any time thereafter, reenter the premises and the same possess as of his former estate; and without such re-entry may recover possession in the manner provided by the statute relating to summary process; it being understood that no demand for the rent and re-entry for condition broken as at common law shall be necessary to enable the lessor to recover possession under said statute, but that all right to any such demand or re-entry is expressly waived by the lessee." Held, 1. That on the non-payment of rent when due and properly demanded the lease was voidable at the election of the lessor. 2. That though, to avoid the lease, the lessor need not make a formal re-entry, he must do some unequivocal act that would signify to the lessee his election to terminate the lease. 3. That the waiver of a demand and re-entry was limited to such demand and re-entry as were necessary for a recovery of the premises under the statute relating to summary process, and had no application to an action of ejectment. The decision in Bowman v. Foot, 29 Conn., 331, approved. Read v. Tuttle.

LIS PENDENS.

1. Doctrine of. - Whether the doctrine will be applied to a purchaser who does not take his title, pending the suit, from a party to the suit: Quære. Norton v. Birge.

2. If the doctrine be subject in its application to such a limitation, yet a purchaser whose grantor took a conveyance from a party to the suit while it was pending, stands in the same position, in respect to the application of the doctrine, as his grantor would have done. Ib.

3. Where a conveyance was executed before the suit was brought, but was not put on record till some time after the suit was brought, it was held that the grantee stood, in relation to the pending suit, just as he would have done if the conveyance had been taken during the pendency of the suit. Ib.

4. A made a conveyance to B, B to C, and C to D, all fraudulent, and N, with no actual knowledge of any infirmity in the title, took a mortgage of C. At the time he took the mortgage, the land records showed attachments on the property by A's creditors, and the law was so that such attachments might be made the basis of insolvent proceedings in the probate court, by the institution of which the attachments would be dissolved. These proceedings had, in fact, been instituted, but N took his mortgage with the knowledge that such attachments had been made, and had subsequently been discontinued, but with no inquiry as to whether insolvent proceedings had been instituted. When he took the mortgage a bill in

equity was pending, brought by the trustee in insolvency against B to set aside the fraudulent conveyance to him, and the deed of B to C, though executed and delivered before the suit, was not put on record or known to the trustee till a long time after the suit was brought. Held, in applying the doctrine of lis pendens to the title acquired by N, that if he was not fully chargeable with notice of the rights of the trustee in insolvency, yet it was not a case of any hardship in the application of the doctrine. Ib.

MILL-SITE.

Non-user. The flowage act (Gen. Statutes, tit. 1, § 390,) provides that no dam shall be erected under its provisions to the injury of any mill-site on the same stream, on which a mill-dam shall have been lawfully erected and used, "unless the right to maintain a mill on such millsite shall have been lost or defeated by abandonment or otherwise." Held, that the statute by these terms did not intend a literal loss of the right to use such mill-site, but only such a neglect to use it on the part of the owner as showed that he had no intention of improving it again for milling purposes. Curtiss v. Smith.

PRACTICE.

1. Costs. The statute (Gen. Statutes, p. 15, 71.) provides that, where a plaintiff in the Superior Court shall withdraw his action within the last three days of the term, without notice to the defendant, the latter may enter for costs within the first three days of the next term. Where a suit was withdrawn on the fourth day before the end of the term without notice to the defendant, and the fact did not come to his knowledge until after the close of the term, it was held that he had no remedy for the recovery of his costs. Bishop v. Pardee.

2. Costs in actions of trespass.-The act of 1866, providing that in actions of trespass tried in the Superior Court, if the plaintiff shall fail to recover more than thirty-five dollars damages, he shall recover no more costs than damages, contains the following proviso:-"Provided, that when the defendant shall remove such action by ap peal from a justice of the peace to the Superior Court, the plaintiff, on recovering judgment against the defendant, shall recover full costs." Held, that the proviso was not retrospective, and did not apply to an appeal pending at the time the act was passed. Skinner v. Watson.

3. Notice: appointment of conservator. - The statute (Gen. Statutes, p. 514, § 2) provides that service of an application for the appointment of a conservator shall be made by leaving a copy at the usual place of abode of the respondent. A respondent, at the time of such an application, was in the county jail as a prisoner, and the house where he had last resided, had, while he was imprisoned, been sold by the trustee of his insolvent estate and possession taken by the purchaser. Held, that service was sufficiently made by leaving a copy with him at the jail. Dunn's Appeal from Probate.

4. The application was returned to the court of probate and the hearing adjourned to a future day. A few days before the time of the hearing the respondent appeared before the judge of probate and consented that a certain person named should be appointed conservator, and the judge thereupon appointed him. At the time fixed for the hearing the respondent appeared and objected to the appointment of any conservator over him, and claimed the right to be heard with his witnesses and counsel, but the judge refused to hear him. Held, that the appointment of the conservator before the time fixed for the hearing was irregular and erroneous, and that the respondent, by consenting to the appointment of the conservator at the time he did, had not precluded himself from the right to be heard against the appointment at the time fixed for the hearing. Ib.

5. Order on erasing a case. An order of the Superior Court, erasing a case from its docket, was reversed by the Supreme Court at its term in February, 1867, but no order was made by the latter court remanding the case, and it was not re-entered in the docket of the Superior Court until its September term, 1867, two terms having intervened. By statute, the Supreme Court, on reversing a judgment, may, if the reversal admits of the further prosecution of the suit, remand the case to the court below, and the plaintiff may enter it in that court for trial. Held that, upon the reversal of an order erasing a case from the docket, no order of the Supreme Court remanding the case was necessary, but that it was properly the duty of the clerk at once to re-enter it, and that on his neglecting to do so, the Superior Court might, at a later term, in its discretion order it. Woodruff v. Bacon.

6. An order erasing a case from the docket is to be regarded as a final judgment for the purpose of a review of it on error, but is not a judgment in the ordinary sense of the term. Ib.

7. Where a garnishee has mingled the money attached in his hands with his own, and has used it as his own, he may properly be required to pay interest on it. Ib.

8. And this interest attaches as an incident to the debt, and the factorizing creditor can recover it with the debt. Ib.

PROMISSORY NOTE.

1. By trustee: business name. - A Shaker community in this State, by the terms of a covenant signed by its mem

bers and by law, transacted business in the name of a trustee appointed by the elders. A negotiable note was given in the State of Massachusetts, for lands bought for the community, signed "Zelotes Terry." Terry was in fact a trustee at the time, and as a member of the community was disqualified from doing any private business. Held, 1. That, regarding the signature as simply that of an agent to a negotiable note, the principals would not be liable under the laws of Massachusetts, by which the case was to be governed. 2. But that the community might have adopted the name of "Zelotes Terry" as their business name, and that evidence was admissible to show that they had done so. Pease v. Pease.

2. A party can adopt a name, and will be holden by contracts executed in such name, and it makes no difference that the name so assumed is not an artificial one, but the proper name of a living person. Ib.

3. A non-negotiable instrument, given for land bought for the community, was signed "Zelotes Terry, Trustee." Held that, as the community was authorized to do business in the name of its trustee for the time being, and could sue and be sued in that name, and had no specific corporate name, the name of such trustee, with a term indicating his official character, was properly the corporate name of the community; and that parol evidence was admissible to show that "Zelotes Terry, Trustee," meant Zelotes Terry, trustee of the community. Ib.

4. Defense of intoxication. -- Where the maker of a negotiable note defends against a bona fide holder, on the ground that he was intoxicated when he made the note, he must make out a case of complete intoxication. Caulkins v. Fry.

5. Where he was able to sign the note, and the next morning to remember that he had done so and for what the note was given, it was held that he had not shown a case of complete intoxication. Ib.

REVENUE STAMPS.

1. On writs and process. — The revenue stamp upon a writ, under the late act of Congress requiring writs to be stamped, was no essential part of the process. Tucker v. Potter.

2. It was not necessary, therefore, that a copy of such a writ left in service should contain a copy or memorandum of the stamp. Ib.

3. Congress had no power to make the stamp an essential part of the process, even if it had so intended. Ib. 4. But such was not its intention. Ib.

5. Whether Congress has the constitutional power to tax the judicial process of a State: Quære. Ib.

SET-OFF.

A debtor whose property had been attached, was carried into insolvency, the attachment being thereby dissolved. The attached property had been receipted, and under the statute the trustee in insolvency recovered judgment on the receipt, in the name of the sheriff, for the value of the property for the benefit of the estate. The receiptor was a creditor of the insolvent to a greater amount than the judgment recovered, and he brought a petition to have the debt due him set off against the judgment. Held, that the set-off could not be allowed. Bishop v. Fowler.

SPECIFIC PERFORMANCE.

1. When enforced. - The British government held, in the name of the respondent, the legal title to certain real estate in this State, originally taken of R. & L., as security for advances to them under a contract for the manufacture of rifles and for the performance of the contract The petitioners had previously held the legal title, under a contract with R. & L., by which they were to hold it as security for certain purposes, with a right to purchase at an appraisal, and had released it to R. & L. to enable them to make the mortgage held by the British government. This release was made upon a condition that when R. & L. had performed their contract secured by the mortgage then to be given, the legal title should be reconveyed to the petitioners. This court having previously held that the property thus released by the petitioners stood in the position of a surety for the performance of the contract of R. & L., and that the property was discharged from its liability in this relation by reason of changes made by the British government in the contract secured by it, the petitioners now brought a bill in equity to compel the respondent to reconvey the legal title to them. It ap peared that all the claim for which the petitioners origin ally held the property as security had been satisfied, and that they had no claim to such a reconveyance except upon the ground of their right to purchase the property at an appraisal. Held, that, as they had not averred any intention at present to exercise the right of purchase, but claimed only that they were entitled to a reconveyance that they might under the contract exercise the right at their option at some future time, the relief sought ought not to be granted. Sharp's Rifle Manufacturing Co. v. Rowan, 2. Held, also, that it was no reason for giving the legal title to the petitioners, that they had an independent claim against the British government on which the latter could not be sued in our courts, and in respect to which they would have an advantage if they held the legal title

and the British government was compelled to come into a court of equity as a petitioner to get it from them. Ib.

3. The British government having the legal title had an advantage in a conflict of equities, and a court of equity would not take away this advantage merely to give it to the other party. Ib.

STATUTE OF LIMITATION.

1. Acknowledgment of indebtedness. - Payments were made by one partner, after the dissolution of the partnership, but before the statute of limitations had taken effect, upon two notes given by the partners during the partnership, one joint and the other joint and several. There was nothing in the circumstances to indicate that the payments were made on the sole account of the partner who made them, although the latter had agreed, on the dissolution, to pay all the partnership debts, which was not known to the creditor. Held, that the acknowledgment of the indebtedness by the payments was sufficient to prevent the operation of the statute of limitations upon the notes against both the makers. Bissell v. Adams.

2. Easements: husband and wife. - -The provisions of the statute of limitations with regard to the time of entry by the owner on lands of which he is disseized, apply equally to easements adversely used. And the limitation of the right of entry, in the case of a married woman, to five years after discoverture, applies to easements. Where a married woman owns real estate in fee, the husband and wife are seized jointly in her right, and an ouster of them would be a disseizin of both, and a right of entry would at once accrue to both and to each. Coe v. Wolcottville Manuf'g Co.

3. On a bond to reconvey.-H., in the year 1844, being sick, conveyed certain real estate to her sister N., as a provision for her minor daughter in case she should not recover. N. executed a bond to reconvey to H. in the event of her recovery. The bond was deposited by N. in a trunk used by them in common for keeping valuable papers. Both regarded it as binding without any other act. After the recovery of H., no demand was made on N., who died in 1865, having shortly before conveyed the land to W. Held, 1. That there was a sufficient delivery of the bond. 2. That the statute of limitations did not begin to run against the bond until N. had been requested to reconvey, or had put it out of her power to do so by conveying to another. Ward's Appeal from Probate.

SUNDAY.

Contracts made on. - Under the statute forbidding secular business on the Lord's day, a loan of money made on that day cannot be recovered. Nor can it be recovered in an action of general assumpsit upon a demand afterward made, as money of the plaintiff in the hands of the defendant. A party cannot be permitted to trace his title through an illegal act. Finn v. Donahue.

TAXATION.

1. Of corporations. It is the general policy of the law to avoid double taxation, and this consideration is of weight in determining the construction of statutes imposing it; but where their meaning is clear the courts cannot hold such taxation illegal. Toll Bridge Co. v. Osborn.

2. A corporation was chartered in 1796 to build and maintain a toll-bridge, with power, "for the purpose of carrying the resolve into effect," to purchase and hold lands not exceeding one hundred acres. The company built the bridge, and soon after purchased a large quantity of mud flats, adjoining the bridge, and erected wharves upon a portion of it, which became of great value and were profitably rented. An act passed in 1847 provided that the real estate of any private corporation, "above what was required and used for the transaction of its appropriate business," should be liable to be assessed and taxed to the same extent as if owned by an individual. Held, that the real estate thus used by the company for wharves was liable to taxation under the statute. Ib.

3. Such a use of the real estate which the company was authorized to purchase and hold was not contemplated or authorized by its charter. Ib.

4. And the question as to what rights the company might have acquired by prescription did not properly arise, inasmuch as the charter, on which the company itself relied, showed clearly what was its appropriate business, and this was the sole question in determining the liability of the property to taxation. Ib.

5. The charter provided that the bridge and all property owned by the company appurtenant thereto should be considered personal estate and divided into shares. Held, that this provision related to the property of the stockholders as represented by the shares, and not to the property of the corporation itself in its relation to other parties, and that the property in question was therefore taxable as real estate. Ib.

general issue, with notice that he should prove that the plaintiff was making a violent assault on the defendant's son, and that he set the dog on the plaintiff as the only means of defending his son, and that if the plaintiff was hurt, it was in consequence of his assault on the son, and in the necessary defense of his son by the defendant. Held, that this notice was applicable to the count for an assault by the defendant personally, and not merely to the count relating to the setting on of the dog, and that the defendant under it might prove a justification for his personal assault on the plaintiff. Hanchett v. Bassett.

TRUST.

Evidence: statute of limitation. Several brothers and sisters purchased together a piece of land in 1842 under a parol agreement among themselves that A, one of their number, should take the title and hold it in trust for the benefit of their mother, during her life, and after her death for themselves. A in 1843 conveyed the land to B, who had no knowledge of the trust, and B soon after conveyed it to C, one of the sisters, she agreeing by parol to carry out the original trust. In 1845 C sold the property to a stranger, receiving the price for the same, which she held till her death, her mother receiving no benefit from it. In 1856 the mother died. In 1847 C married, and died in 1865. After her marriage and within six years before her death, she repeatedly acknowledged her indebtedness to her brothers and sisters for their shares of the money received by her. After her death, they presented a claim against her estate for the money. Held, 1. That the trust, so far as the interest of the claimants are concerned, was merely a resulting trust, that would be implied by law from their having paid for the land, and could be proved by parol evidence. 2. That the conveyance to B did not purge the trust in the hands of C, who had notice of it and agreed to perform it. 3. That the acknowledgment of the indebtedness by C, while married, was sufficient to prevent the operation of the statute of limitations on the claim. 4. That, in the circumstances, interest ought to be allowed on the money in the hands of C from the time she received it. Booth's Appeal from Probate.

VARIANCE.

Between declaration and proof. A declaration alleged the consideration of a warranty of a quantity of potatoes to be an agreement "that the plaintiff would buy of the defendant a certain quantity, to wit, five hundred bushels of potatoes, at one dollar a bushel, to be paid, to wit, when the defendant should deliver them." The consideration proved was, an agreement that the plaintiff would buy all the good potatoes then growing in a certain field of the defendant, except such as the defendant should reserve for the use of his family, at one dollar per bushel, to be paid on delivery or within a reasonable time thereafter. Held to be a fatal variance, both in respect to the quantity, and in respect to the time of payment. Held, also, that the case was not helped by the videlicet. Pulford v. Johnson.

WILL.

1. Bequests: when payable in gold. A testator, by a will executed in 1865, made the following bequest:-"I give to each of the children of my two sisters in France, two hundred dollars in gold." The testator had at the time two sisters living in France, one of whom had five children and the other one. A third sister had lived in France, but had died before the making of the will, leaving seven children who were then living. The testator knew of her death, and of the children that she left. Held, that the bequest was not void for uncertainty, and that the child and children of the two surviving sisters must be regarded as intended. Held, also, that the legacies were payable in gold coin. Graw v. Brindley.

2. Construction of: evidence of assent. - A testator gave all his estate, subject to certain bequests, to his nephew, C, provided he should relinquish all claim to his father's estate. Held, that this meant that C should relinquish his interest in his father's estate to his brothers and sisters, who were heirs with him. Treat v. Treat.

3. The will provided that, if C should not relinquish his interest in his father's estate, the property given him should go, one-quarter to the heirs of C's father and the rest to other parties named. An arrangement was entered into by Cand all his brothers and sisters except H, who was not present, and by an aunt, by which C was to relinquish his interest in his father's estate to one of his sisters, and the aunt was to convey certain real estate to his two brothers H and M. The conveyances were made accordingly, and H entered into possession of the land conveyed to him, but in ignorance of the arrangement under which it was conveyed. The land was worth more than the share he would have received of C's interest in his father's estate, and he retained possession of it for four years after he had learned of the arrangement. Held, that his assent to the arrangement would be inferred, and that there was no forfeiture of C's interest under the will of his uncle. Ib. 4. Where an arrangement is manifestly for the benefit of a person, slight evidence of his assent to it will be sufficient. Ib.

5. A court of probate has no power to decree a forfeiture under the conditions of a will. Ib.

The Albany Law Journal.

ALBANY, MARCH 12, 1870.

LAW AND LAWYERS IN LITERATURE.*

IX.

Another interview between St. Peter and a lawyer is described in Carr's "Remarks of the Government of the several Parts of Germanie, Denmark," etc. Amsterdam, 1688: "And now, because I am speaking of Pettyfogers, give me leave to tell you a story I mett with when I lived in Rome. Goeing with a Romane to see some Antiquityes, he showed a chapell dedicated to one St. Evona, a lawyer of Brittaine, who he said came to Rome to entreat the Pope to give the lawyers of Brittaine a Patron, to which the Pope replied, that he knew of no Saint but what was disposed of to other Professions. At which Evona was very sad, and earnestly begd of the Pope to think of one for him. At last the Pope proposed to St. Evona that he should goe round the church of St. John de Latera blindfould, and after he had said so many Ave Marias, that the first Saint he layd hold of should be his Patron, which the good old lawyer willingly undertook; and at the end of his Ave Maryes he stopt at St. Michel's altar, where he layd hold of the Divill, under St. Michel's feet, and cryd out, this is our Saint; let him be our Patron. So, being unblindfolded, and seeing what a Patron he had chosen, he went to his lodgings so dejected, that in a few months after he dyed, and, coming to heaven's gates, knockt hard. Whereupon St. Peter asked who it was that knockt so bouldly. He replied that he was St. Evona the advocate. Away, away, said St. Peter; here is but one Advocate in heaven; here is no room for you lawyers. O but, said St. Evona, I am that honest lawyer who never tooke fees on both sides, or pleaded in a bad cause, nor did I ever set my naibours together by the eares, or lived by the sins of the people. Well, then, said St. Peter, come in. This newes coming down to Rome, a witty poet writ on St. Evona's tomb these words:

'St. Evona, un Briton, Advocat non Larron, Haleluiah.""

SMOLLETT.

One of the most entertaining legal characters in fiction is Tom Clarke, the attorney, in Sir Launcelot Greaves. The character of a lawyer simply good would, of course, be utterly uninteresting, and so the author has contrived to invest this character with interest by rendering him ineffably tedious. He says of him at the outset, that his "goodness of heart even the exercise of his profession had not been able to corrupt. Before strangers he never owned himself an attorney without blushing, though he had no reason to blush for his own practice. He piqued himself on understanding the practice of the courts, and in private company he took pleasure in laying down the law; but he was an indifferent orator, and tediously circumstantial in his explanations."

*Entered, according to Act of Congress, in the office of the Clerk of the District Court of the United States for the Northern District of New York, in the year 1870, by IRVING BROWNE

Captain Crowe narrates how his grandmother and his maiden aunt, by the assistance of an attorney, "hove him out of his inheritance." "Yes, indeed, sir,' added Mr. Clarke, 'those two malicious old women docked the intail, and left the estate to an alien.' Here Mr. Ferrett thought proper to intermingle in the conversation with a 'Pish! what, dost talk of docking the intail? Dost not know that by the statute Westm., 2, 13 Ed., the will and intention of the donor must be fulfilled, and the tenant in tail shall not alien after issue had, or before.' 'Give me leave, sir,' replied Tom, 'I presume you are a practitioner in the law. Now you know, that in the case of a contingent remainder, the intail may be destroyed by levying a fine, and suffering a recovery; or otherwise destroying the particular estate, before the contingency happens. If feoffees, who possess an estate only during the life of a son, where divers remainders are limited over, make a feoffment in fee to him, by the feoffment all the future remainders are destroyed. Indeed, a person in remainder may have a writ of intrusion, if any do intrude after the death of a tenant for life; and the writ ex gravi querela lies to execute a devise in remainder after the death of a tenant in tail without issue.' 'Spoke like a true disciple of Geber,' cried Ferrett. 'No, sir,' replied Mr. Clarke, Counsellor Caper is in the conveyancing way-I was clerk to Serjeant Croaker.' 'Ay, now you may set up for yourself,' resumed the other, 'for you can prate as unintelligibly as the best of them.' 'Perhaps,' said Tom, 'I do not make myself understood. If so be as how that is the case, let us change the position, and suppose that this here case is tail after possibility of issue extinct. If a tenant in tail after a possibility make a feoffment of his land, he in reversion may enter for the forfeiture. make a distinction between general tail and special tail. It is the word body that makes the intail: there must be a body in the tail, devised to heirs, male or female, otherwise it is a fee-simple, because it is not limited of what body. Thus a corporation cannot be siezed in tail. For example, here is a young woman— what is your name, my dear?' 'Dolly,' answered the daughter, with a courtesy. 'Here's Dolly-I seize Dolly in tail--Dolly, I seize you in tail.' 'Shan't, then,' cried Dolly, pouting. 'I am seized of land in fee-I settle on Dolly in tail.'" For the continuation of this discussion see the original report.

Then we must

At a later period, Ferrett observed that Greaves was a common nuisance, and ought to be prosecuted on the statute of barratry. "No, sir,' resumed Mr. Clarke, 'he can not be convicted of barratry unless he is always at variance with some person or other, a mover of suits and quarrels, who disturbs the peace under color of law. Therefore he is in the indictment styled, communis, malefactor, calumniator, et seminator lilium.' 'Prythee truce with thy definitions,' cried Ferrett, and make an end of thy long-winded story. Thou hast no title to be so tedious, until thou comest to have a coif in the court of common pleas.'"'

Tom also laid down the law of robbery. "Taking away another man's movables,' said he, and personal goods, against the will of the owner, is furtum and felony according to the statute; different, indeed, from robbery, which implies putting in fear on the