would fine him ten dollars if he did not cease coughing, when he was met with the reply: "I will give your honor twenty dollars if you will stop it for me."

A case was tried recently in one of the Connecticut courts, in which the plaintiff claimed damages for being violently ejected from a train on the New York and New Haven railway. The counsel for the defense, in his plea that no unnecessary violence was used, made out the conductor to be a second Chesterfield, and the brakemen, who had broken the unfortunate passenger's head, and cast him neck and heels out of the car, the most tenderhearted and amiable of living creatures.

"Observe, gentlemen of the jury," said the railroad lawyer, "the manner in which the gentlemanly conductor ordered the removal of this desperate man, by saying, in his good natured way, "now, boys, take hold and put this fellow off."

This expression did not escape the sharp ears of the plaintiff's lawyer, who, in his turn, illustrated it as follows:

"Gentlemen of the jury, my brother has told you that the conductor, in the most pleasant manner, said, 'Now, boys, take hold and put this fellow off.' Now, gentlemen, when is it that men are addressed as boys! Why, when they are expected to do something violent or dangerous. As the mate calls upon his crew-'Now, boys, lay aloft and furl topsails,' or the captain shouts to his men in the field, 'Now, boys, aim low and let 'em have it;' but, gentlemen, what would you think if a bank president should summon his directors together with 'Now, boys! let's go in and discount Brown's note,' or of the clergyman who should rise in his pulpit and shout-'Now, boys, let's sing the 42d Psalm.'"

Verdict was rendered for the plaintiff.

COURT OF APPEALS ABSTRACT.
MARCH TERM, 1870.

John W. Shumway and another, executors, etc., respondents, v.
Isaac Shumway, appellant.

The plaintiffs and defendant were executors of an estate, and the will contained an express power to the executors to sell the testator's real estate. The action was brought to set aside a deed from the testator to defendant of part of such real estate, on the ground of want of capacity to convey, fraud and undue influence. The relief demanded in the complaint was, that the deed to defendant be declared void; that the same be canceled of record, and that the title to the premises be adjudged to be in the heirs, subject to the executors' power of sale. There was no demand of possession. The jury found for the plaintiff. The defendant moved at special term for an order vacating the judgment and for a new trial, on terms, on the ground that the action determined the title to real estate under 2 R. S. 309, 22 36 and 37, and that "by the course pursued by the plaintiff in bringing an action in equity instead of one at law, the defendant is deprived of a new trial, to which, as matter of course, he would have been entitled under the provisions of the revised statutes. Held, that the action was neither in substance or effect an action of ejectment, and that therefore the right to a new trial given by the revised statutes does not apply.

The provisions of the revised statutes granting new trial in cases of ejectment remain in force since the code, and are applicable to those cases which would have been termed actions of ejectment before the code.

Charles C. Sherman, respondent, v. Ruth Willett, appellant. The administrators have the right to sell the personal property of their intestate, and that right is not limited by section 25, 2 R. S. 87. They have the right to sell for the payment of debts and legacies for the purpose of distribution.

Where an administrator at vendue sold to plaintiff a crop of rye which was then growing on the land of the intestate, and which had been sowed prior to such intestate's death, and the land on which the rye was growing was afterward, but before the harvest, sold to defendant on the foreclosure of a mortgage given by intestate (the rye being reserved, and not included in the sale, as was announced by the auctioneer at the time of the sale, and in the presence of the defendant),-Held, that the plaintiff acquired a valid title to the rye under the administrator's vendue sale, and that the defendant-the purchaser of the farm on the foreclosure sale - did not acquire title to the rye as against the plaintiff. That plaintiff's title would have been equally valid, so far as related to the claim of defendant, had the rye not been excepted at the foreclosure sale. It was not necessary for the plaintiff to show that the sale of the rye by the administrator was necessary for the payment of debts of the intestate. The sale being apparently in due course of administration, the plaintiff had a right to presume that it was authorized and legal. The presumption is in favor of the legality of the sale.

Charles A. Russell and another, respondents, v. Frederick T. Carrington and another, appellants.

Action to recover the price paid to defendants for a quantity of corn, which, after the agreement of purchase and sale, and before actual delivery, was destroyed by fire. It appeared that the defendants sold to plaintiffs four hundred bushels of corn, parcel of a cargo from the schooner St. Helena, which was then stored in a warehouse in Oswego, known as the Empire elevator. The plaintiffs paid the price agreed upon and received a bill of sale, receipted, therefor. The corn in the elevator was stored there to the account of one Wright, and the man having charge of such elevator was authorized to deliver only upon the order of Wright. Immediately after the sale the defendants drew an order on Wright for the delivery to plaintiffs of the "400 bushels of corn from cargo schooner St. Helena." Thereupon Wright made an order to deliver such corn, which order was delivered to plaintiffs, and by them to their agents, with instructions to deliver it to the master of the schooner "Northerner," on her arrival at Oswego. At the time of the sale the plaintiffs informed defendants that they wanted the corn to make out a cargo, and that they wished to ship it by said schooner, which would arrive in about two days; but the schooner did in fact arrive next day, between ten and twelve o'clock, P. M. On the following morning, and before Wright's order to deliver had been presented, the elevator was burned down, and its contents, including the corn, destroyed or damaged, with fault or negligence of defendants. The four hundred bushels of corn were in no wise separate from the rest of the cargo of the St. Helena. The master of plaintiffs' schooner subsequently presented Wright's order, and demanded the amount of corn, which demand was refused. Held, that the title to the corn had passed to the plaintiffs, and that they could not maintain the action.

Upon the sale of a specified quantity of grain, its separation from a mass indistinguishable in quality or value in which it is included, is not necessary to pass the title, where the intention to do so is otherwise clearly manifested. The defendants having procured and delivered to the plaintiffs Wright's order of delivery, they (the defendants) had lost all control over the corn, and the keeper of the elevator became the bailee of the plaintiffs. The defendants having delivered Wright's order, nothing remained to be done by them, and the delivery was complete. The fact that there had not been an actual delivery of the grain was not material.

The lawyers in the breach of promise case of Early v. Craig, at Wytheville, Va., are very much disgusted, because their two clients have made up, married and ran away.

DIGEST OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF IOWA.*

ASSIGNMENT.

1. Without recourse: failure of tille. While the words "without recourse," as used in the indorsement of commercial paper, will operate to limit the liability of the indorser, as such, only, and will not relieve him from liability in case he was not the lawful holder of or had no title to the note, yet they will have a different effect when used in connection with the sale and assignment of certain securities and choses in action, and if it turn out that the vendor or assignor had in fact no title to one of the choses assigned, though he supposed he had, he cannot in view of these words used in the assignment, be held liable. The words "without recourse," in such case will be so construed as to operate to relieve the liability of the assignor as a vendor. Wolcott v. Timberman.

2. Application of the rule.-W. and T. being sureties for L. in a certain judgment received from him an assignment, as collateral security, of certain claims and choses in action, among which was mentioned a promissory note upon a third party, which was described as being lost or mislaid. Subsequently L. assigned absolutely all his interest in the claims specified to the sureties, W. and T. Subsequently to this W. assumed to pay, and afterward did pay the judgment in consideration of T. assigning to him all his interest in said claims " without recourse," and paying to him $300 additional. It was afterward ascertained that the note described as being mislaid and which was the most valuable of the lot, had in fact been before assigned by the debtor to, and was held by a third party, and that the rest of the claims were nearly worthless. Held, no fraud being shown, that the words "without recourse" in the assignment protected the assignor from liability for failure of title in the note. Ib.

FRAUDULENT CONVEYANCE.

1. Knowledge of grantee when a creditor. Where two or more bona fide creditors are engaged in a race for priority, the one securing it by a mortgage to him from the debtor, cannot have his right defeated by, or postponed to, a more tardy or less fortunate creditor, by showing a fraudulent intent on the part of the debtor in making the mortgage, and knowledge of such intent on the part of the creditor. Fraud in its legal sense cannot, without more, be predicated upon such a transaction. Merritt and Blanchard v. Walters et al.

Chase,

2. A mortgage executed by a debtor to a creditor, with the intent on the part of the debtor to delay or defraud another creditor, will not be held fraudulent and void even though such intent is known to the creditor receiving the mortgage, if he accepts it for the purpose of securing a bona fide debt due him from the mortgagor. Ib.

HIGHWAY.

Compensation to land owner: constitutional law. -While a person through whose land a public road is located, is entitled to compensation under the constitutional clause guaranteeing that private property shall not be taken for public use without compensation, yet he is entitled to it only in the manner pointed out and provided by law; and if he fails to apply therefor, or within the time prescribed within the statute, or applying, his claim is rejected, and he takes no step, by appeal or otherwise, to reverse such order of disallowance, he cannot afterward resist the right of the public to open the road, upon the ground that the compensation guaranteed by the constitution has not been made to him. Dunlap v. Polley et al.

LIMITATION, STATUTE of.

1. Effect of payment and indorsements.-Under our statute of limitations (Rev. Sec. 2740, subdivision 14) the acknowl

* April Term, 1870. Prepared by E. H. Stiles, Esq., State Reporter.

edgment arising from part payment and indorsement thereof on a promissory note, is not sufficient to prevent the bar of the statute. The admission of new promise required by the statute must, in all cases, be in writing, signed by the party to be charged. Parsons v. Cary. 2. The difference between our own and the English statute (9 Geo. IV, ch. 14) pointed out. Ib.

3. Constitutional law. The fact that such part payment constituted an admission from which a new promise might have been implied under the law as it stood at the time of the execution of the original contract and new promise were made, does not prevent the application of the present statute, nor render such application violative of the constitutional provision against laws imposing the obligations of contracts. Ib.

MORTGAGE.

1. Subsequent sale of parcels: liability of. It is the settled doctrine of this state that where incumbered real estate is subsequently sold by the mortgagor in parcels to different purchasers, each must contribute proportionately to the discharge of the incumbrance, and not in the inverse order of their alienation. Barney v. Myers et al.

2. Foreclosure. - Where a mortgagee, in a mortgage covering several distinct lots or parcels of real estate, releases some of them, sold by the mortgagor, upon the payment of amounts proportionate to the value which they bear to the mortgage debt, and all the remaining lots, except one in the possession of a purchaser from the mortgagor, are subsequently sold under foreclosure of the mortgage for amounts not proportionate to the actual value which they bear to the mortgage debt, though without any fault on the part of the mortgagee, the remaining lot which has not been released, and the purchase money of which was not applied to the mortgage debt, is liable in the hands of the purchaser for, and may be subjected, to the payment of any balance of the mortgage debt remaining unpaid. Ib. PRACTICE.

2. Mere forbearance is not sufficient, even though the debtor shall pay therefor more than by law he was obliged to pay. It was accordingly held, that forbearance given to the principal in a promissory note after the same became due, upon his paying the usurious interest originally agreed upon and accrued, was insufficient to release the surety. Ib.

SUPREME COURT OF NEW YORK.*

1. Action for breach of covenant of quiet enjoyment. - An action for damages for the breach of a covenant of quiet enjyment, contained in a lease executed by a person having a life estate in the premises, which breach was

* From Austin Abbott, Esq.; to appear in 8 Abbott, P. and R.

occasioned by the death of the life-tenant, will not lie against the executor of such life-tenant and the remainder men jointly, nor against the remainder men in any form. Coakley v. Chamberlain.

2. The mere fact that the remainder men, by an action instituted for that purpose, collected the rent reserved by the lease, from the death of the life-tenant up to the time of the final partition of the premises, cannot be construed into an adoption and ratification of such covenant on their part. Ib.

3. Unexpired lease from life tenant. — An unexpired lease, executed by a person having only a life estate in the demised premises, becomes void and inoperative upon the death of the life-tenant as against the remaindermen, and from that time constitutes no further lien or incumbrance upon the premises. Ib.

4. No tenure and no relation necessarily exists between remainder men and the tenant of the life-tenant. Ib.

5. Contracts of married women. The acts of 1848 and 1849 did not confer any greater authority upon married women to make contracts generally, than previously existed, and did not remove the legal incapacity of a married woman to enter into a personal obligation; nor did those acts authorize a married woman to charge her separate estate for a debt which did not arise in connection with it, or which was not contracted for her own benefit, or the benefit of her separate estate. Ib.

6. The reported cases arising under these acts, reviewed, and the case of Kolls v. De Leyer (41 Barb., 208) explained. Ib.

7. Where a married woman, having a life estate in a certain premises, executed, prior to the year 1860, a ten years' lease of such premises, with a covenant contained therein that no payment of the rent thereby reserved, the lessee might quietly have and enjoy the said premises for the full term, and thereupon died before the expiration of the term, and the lessee was dispossessed by the remainder men, Held, that no action for damages occasioned by the breach of such covenant could be maintained by the lessee against the executor of such married women, in the absence of proof that the covenant was for benefit of her separate estate. Ib.

8. Bail in capital cases. Even in capital cases, the accused is entitled to be bailed, unless the proof is evident, or the presumption great. People v. Perry.

9. Where the prisoner had been twice tried, and on both occasions the jury were unable to agree on a verdict: Held, that it was a proper cause for exercising the power of bail. B.

10. Dying declaration.. -To lay a foundation for the admission in evidence of dying declarations, it must be shown that the declarant was under the impression of approaching death, and without hope of recovery. It is not enough that he was actually in a dying condition, and nodded assent when told that he was. Ib.

DIGEST OF RECENT ENGLISH DECISIONS.

(Q. B. refers to Queen's Bench: C. P. to Common Pleas : Ex. to the Exchequer; P. C. to the Privy Council; Ch. to Chancery; M. C. to Magistrates' Cases; P. & M. to Probate and Matrimonial, and L. J. R. to Law Journal Reports.)

ABATEMENT.

1. Value of annuities: dead and living annuitants : reversionary annuity. —The corpus of an estate charged by will with annuities, being insufficient to pay them in full, and some of the annuitants being dead and others living: Held, that the values must be ascertained with reference to the events which had occurred, and that the rule in Todd v. Bielby applied, notwithstanding the fact that the interest of one of the annuitants was reversionary at the death of testator. Potts v. Smith, Ch., 39 L. J. R. 131.

2. Mode of taking the accounts where the sums already pald to the several annuitants did not bear the same pro

Administrator pendente lite acting under order of court of chancery. An administrator pendente lite, acting under an order of the court of chancery, which directed the personal estate of the intestate to be applied in payment of her debts and funeral expenses in a due course of administration, advertised for sale the unrealized portions of the estate, consisting chiefly of personal ornaments and family relics. The estate, exclusive of such articles and things, was insufficient to meet the debts proved and claimed, but plaintiff, in order to prevent the sale, was willing to deposit in the registry a sum sufficient to cover the deficiency. The court, though deeming the offer of the plaintiff a reasonable one, declined to restrain the administrator from proceeding with the sale, and intimated that as a rule it would not interfere with an administrator acting under an order of the court of chancery. Tichborne v. Tichborne; and in the goods of Tichborne, P. and M., 39 L. J. R. 22.

ALIMONY.

Wife's petition for, pendente lite: practice when no answer. The wife filed her petition for alimony, pendente lile. The husband filed no answer thereto: Held, that he was not entitled to cross-examine witnesses called in support of the petition. Constable v. Constable, P. & M., 39 L. J. R. 17.

ARBITRATION.

Award: costs: certificate of arbitrator : order of judge. — An action of trespass was referred by consent to an arbitrator who was to have all the powers of a judge at nisi prius as to certifying, etc., and the costs of the cause were to abide the event. The arbitrator awarded to the plaintiff the sum of 21. 14s., and made no certificate for costs. After a considerable lapse of time, the plaintiff obtained ex parte from the arbitrator a document in which he stated that it appeared to him at the reference that there was sufficient reason for bringing the action in the court of queen's bench. Held, that the court or a judge had power under the 30 & 31 Vict. c. 142, s. 5, to order that the plaintiff be allowed his costs, but that the court would not act upon the above document merely, and that under those circumstances the award ought to be remitted to the arbitrator. Harland v. Mayor and Corporation of Newcastleupon-Tyne, Q. B., 39 L. J. R. 67.

BANKRUPTCY.

1. Registered deed: concurrent jurisdiction: bill to set aside a sale by trustees: administration. -The court will not, under ordinary circumstances, entertain a suit for the administration of the trusts of a deed registered under the bankruptcy act, 1861. Stone v. Thomas, Ch., 39 L. J. R. 168.

2. The bill alleged, and it appeared from the evidence in the suit, that the trustees had sold the good-will, business and stock in trade of the debtor to one of themselves at a slight under-value: Held, that this circumstance did not take the case out of the general rule, the court of bankruptcy having sufficient power to deal with such

questions. The question whether the court ought to exercise its jurisdiction, or leave the question to another tribunal, need not be raised by demurrer or plea. Ib.

8. Plea of defendant's bankruptcy: order of discharge after action brought. — A plea in the general form, according to the bankrupt act, 1861, s. 161, that defendant became bankrupt according to the statute in force concerning bankrupts, and that the cause of action accrued before defendant so became bankrupt, is not proved by showing that defendant was adjudicated bankrupt before, and received his order of discharge after, action brought. Jones v. Hill, Q. B., 39 L. J. R. 74.

BARON AND FEME.

Lunacy of husband: wife's authority to pledge husband's credit for necessaries. — In an action for the price of necessary repairs done to defendant's house, it appeared that he was a lunatic, and that the work was done by order of his wife, with knowledge on the part of plaintiff of the husband's lunacy. The wife had always received a sufficient allowance from her husband's estate. Held, that defendant was not liable, as, under the circumstances, the wife had no more authority to pledge his credit than she would have had if he had been sane, and had provided her with means for all necessaries. Richardson v. Du Bois, Q. B., 39 L. J. R. 69.

CARRIERS BY RAILWAY.

1. Carriers' act: pictures in frames: picture frames. - If a package containing pictures in frames exceeding 101. in value, be delivered to a carrier to be carried for hire, without any declaration within the first section of the carriers' act as to the value and nature of the articles, picture and frame are to be considered as one article; and the carrier is protected by the act from liabilily in respect of damage done to the frame, as well as in respect of damage done to the picture itself. Anderson v. London and North Western Railway Co., Ex., 39 L. J. R. 55.

2. Mileage rate: usual and accustomed route. — A railway company, in carrying goods, took them past C. Junction to N. E. station and back, and then on by other lines, and charged a mileage rate which included the mileage to and fro between these places; such route was reasonable, usual, and accustomed. Held, that they could so charge. The London and South Western Railway Co. v. Myers, C. P., 39 L. J. R. 57.

3. Refusal of consignee to accept goods: subsequent misdelivery: negligence by involuntary bailee. - Goods intrusted to a railway company having been tendered by them for delivery at the address of the consignees, were refused acceptance, and the company thereupon took them back to their own premises. They then (in accordance with their practice under such circumstances) sent an advice note to the consignees' address by post, stating that the goods remained at the risk of the "consignees," and would be delivered to the person producing the note. They subsequently delivered the goods to a person who had formerly been in the service of the consignees, and who, having obtained the advice note fraudulently, produced it at the company's premises. Held, that upon the goods being returned on the company's hands their duty as carriers was at an end, and they became involuntary bailees; and that in an action brought against them by the consignors for misdelivery and conversion, it was a question of fact whether they had acted under the circumstances with due and reasonable care and diligence. Heugh v. The London and North Western Railway Co., Ex., 39 L. J. R. 84.

CHILDREN.

Abandonment and exposure of, endangering life. - The prisoners were convicted on an indictment which charged that they did abandon and expose a child, under the age of two years, whereby the life of the child was endangered. The indictment was framed on the 24 and 25

Vict. c. 100, s. 27. One of the prisoners was the mother of the child, which was illegitimate, and both the prisoners put the child in a hamper at S., wrapped up in a shawl, and packed with shavings and cotton wool, and the mother took the hamper to the booking office of the railway station at M., and left it, having paid the carriage of it to G. The hamper was addressed to the lodgings of the father of the child at G. She told the clerk at the office to be very careful of it, and to send it by the next train, which was due in ten minutes from that time. Upon the address were the words written, "With care; to be delivered immediately." The hamper was carried by the passenger train, and was delivered at its address in a little less than an hour from leaving M. On its being opened the child was found alive. The child was taken by the relieving officer the same evening to the union workhouse, where it lived for three weeks afterward, when it died from causes not attributable to the conduct of the prisoners, or either of them. It was proved to have been a delicate child: Held, by a majority of the judges, that the conviction was right. Regina v. Falkingham, M. C., 39 L. J. R. 47.

COLONIAL LAW.

1. Cape of Good Hope: ordinances of court of policy: effect of Roman-Dutch law. - By the Roman-Dutch law, ordinances of the governor and the court of policy at the Cape of Good Hope form part of the lex scripta of the colony. Van Breda v. Silberbauer, P. C., 39 L. J. R. 8.

2. A land owner in the colony petitioned the governor and court of policy to be relieved from certain ordinances made in respect to the right to the flow of certain water from his land into and upon the land of certain adjoining land owners, but "offered" to permit the flow of the water, subject to certain restrictions. By an ordinance of the governor and court of policy, it was resolved to release the land owner from the former ordinances, and to accept the "offer" contained in his petition. Held, that, inasmuch as the legislature could only modify an existing law by passing a new law, such ordinance, though informal, had the force of law. Ib.

CONTRACT. See Damages. Evidence.

CONTRIBUTORY.

1. Conditional contract to take shares.-S. offered to take shares in a company in consideration of his being secured a contract for adding to and altering the company's premises. The directors passed a resolution to give him the contract, and on the faith of such resolution he sent a formal application for shares without condition, and paid the deposit. The shares were allotted, and notice of the allotment was sent to S., and his name was entered on the register; but the certificates were never delivered nor was S. required to pay any calls. The contract was never given to S., on account of the winding up of the company. Held (affirming the decision of the Master of the Rolls), that there was a contract to take shares by S. only on condition of his obtaining the building contract; that that condition had not been fulfilled by the company nor waived by S., and that, therefore, S.'s name must be removed from the list of contributories. In re The Aldborough Hotel Company; Simpson's Case, Ch., 39 L. J. R. 121. 2. Liability of past members: owner of shares forfeited. – The person, who was the owner of shares which have been forfeited, may be put upon the list of contributories as a past member, whether he was owner of the shares at the time they were forfeited, or previously, if within one year of the date of the winding up. In re The Blakeley Ordnance Company; Creyke's Case, Ch., 39 L. J. R. 124.

3. For the purpose of considering the liability of past members forfeiture and transfer are equivalent. Ib. 4. Compromise ultra vires. In 1846 D. became a shareholder in an unlimited company, upon the faith of a promise by W., the local manager, that he should not become responsible as a shareholder until an act of parlia

ment should be passed incorporating the company with limited liability. D. never paid any calls upon his shares, all calls being paid by W.; but he acted as a shareholder in some particulars. No act, such as that alluded to, was ever passed. Upon D.'s application that his shares should be canceled, the directors in 1848 passed a resolution to cancel the shares. Such a resolution by directors was ultra vires, but no steps were taken by the company to enforce D.'s liability as a shareholder, and for twenty years D. held no communication with the company. In 1869 the official liquidator (the company being then in course of winding up) sought to place D. upon the list of contributories. Held, on the authority of Spackman v. Evans, Houldsworth v. Evans, and Stanhope's case, that D. must be placed upon the list of contributories. In re The Agriculturist Cattle Ins. Co.; Dixon's case, Ch., 39 L. J. R. 134.

COPYRIGHT.

1. Registration: newspaper: injunction. —A newspaper is not a "book" within section two of the Copyright act (5 and 6 Vict. c. 45), nor a periodical under section 19, and, therefore, need not be registered under section 24,in order to enable the proprietor to sue for an infringement of copyright; the modified property conferred upon him by section 18 in any contribution to his paper for which he has paid, will, without registration, be sufficient to enable him to maintain a suit. Cox v. The Land and Water Journal Co., Ch., 39 L. J. R. 152.

2. An injunction to restrain the piracy of a list published in a newspaper will be refused on interlocutory application, where the information supplied by the list is to be easily obtained and where the court would be unable to decide whether it had been properly obtained or not. Ib. 3. Semble: That in this case an injunction would also be refused at the hearing, and an inquiry ordered as to damages. Ib.

COSTS.

Bankruptcy of defaulting trustee. A trustee in default to the trust estate, and having executed a creditor's deed duly registered before bill filled against him for the execution of the trusts, is entitled to his costs from the date of the bankruptcy as between solicitor and client, from the party liable to the costs of the suit. Held, that there is no difference in this respect between an executor and a trustee. Bowyer v. Griffin, Ch., 39 L. J. R. 159. of adjourned summons. See Security tor Costs.

COVENANT.

To give by will. See Marriage Articles.

DEBENTURE.

Charge on undertaking: going concern: priority. — A debenture-holder, in whose favor the undertaking of a company is charged, although he cannot come upon the assets and property of the company so long as it is a going concern, yet upon its stoppage. and the sale of its property, has a lien upon the proceeds in priority to general creditors. Furness v. Caterham Railway Company, 27 Beav. 348, followed. In re Panama, New Zealand & Australian Royal Mail Co., Ch., 39 L. J. R. 162.

DEBTORS' ACT, 1869.

Imprisonment under. See Attorney and Solicitor.

DAMAGES.

1. Proximate cause: acts of independent parties conjointly causing damage: contributory negligence. - Defendants, a gas company, having contracted to supply plaintiff with a service pipe from their main to the meter on his premises, laid down a defective pipe from which the gas escaped. A workman, in the employ of a gas-fitter engaged by plaintiff to lay down the pipes leading from the meter over the premises, negligently took a lighted candle for the purpose of finding out whence the escape proeeeded. An explosion then took place, whereby damage was occasioned to the plaintiff's premises, to recover

compensation for which plaintiff brought his action against defendants. Held, that the damage was not too remote, and that plaintiff, not being the master of the workman, could not be considered as contributing to the damage by reason of this act, and was therefore entitled to recover. Burrows v. The March Gas and Coke Co., Ex., 39 L. J. R. 33.

2. Measure of: agreement to accept and pay bills. -Defendants, for a commission, agreed with plaintiff's to accept bills of exchange drawn upon them by a house at Alexandria, against grain consigned to England, and to pay the bills at maturity, being in the mean time placed in funds by plaintiffs, from the proceeds of the sale of the grain. Defendants accordingly accepted bills to a large amount, and were placed in funds to meet them by plaintiffs, but afterward, and before the bills came to maturity, defendants stopped payment and gave notice to plaintiffs that they should not pay the bills. Plaintiffs thereupon obtained an advance from a third person, for the purpose of taking up the bills, paying a commission for the advance. They incurred expenses in telegraphing to Alexandria for information respecting the holders of the bills, and for telegraphic replies from Alexandria. They also paid for the noting and protesting of the bills. In an action brought by plaintiffs against defendants to recover damages for defendants' breach of contract, defendants paid into court the amount claimed for the noting and protesting, and the jury gave a verdict for plaintiffs for the amount of the commission paid for the advance and the telegraphic expenses. Upon a rule to enter a nonsuit or verdict for the defendants upon the ground that such damages were not recoverable; held, that they were recoverable; and, per KELLY, C. B. By the analogy of actions brought against banks for not paying customers' checks, the amount given by the jury might be given as general damage; and per MARTIN, B. and PIGOTT, B.-The damage for which the verdict was given was special and not general damage; but it was special damage, arising naturally from the defendants' breach of contract, and therefore was recoverable. Prehn v. The Royal Bank of Liverpool, Ex., 39 L. J. R. 41.

EVIDENCE.

1. Contract for work done and materials provided: collateral issue. At the trial of an action, brought to recover from defendant a sum of money for work done and materials supplied in respect of certain dwelling houses and premises, it was alleged by plaintiff and denied by defendant, that he (plaintiff) had received orders from defendant to do the work and supply the materials. The dwelling houses were being erected by L. & B., who had originally given orders to plaintiff, and at the trial it was contended for defendant that credit had been given to L. & B., and that he was simply mortgagee. It was contended for plaintiff that defendant was really owner and personally interested in the premises, and that L. & B. were his agents; held, that plaintiff was at liberty to call other persons to prove that they had received orders from defendant personally to do work or to supply materials upon or for the same dwelling houses, as such proof was evidence to show that defendant was really the owner and person interested in the dwelling houses. Woodward v. Buchanan, Q. B., 39 L. J. R. 71.

2. Proceeding in consequence of adultery: testimony of reputed parents to bastardize issue: independent evidence required: presumption of non-access. — A petition which sought to establish a claim on the ground that a certain person was illegitimate by reason of the adultery of his mother, who had since been divorced: held, not to be "a proceeding instituted in consequence of adultery," within the meaning of the "Evidence Further Amendment act, 1869," 3, so as to make the husband competent to give evidence tending to prove the fact of non-access. But