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material or not; that the provision in the Kentucky statute of February 4, 1874, that all statements or descriptions in the application shall be deemed representations and not warranties, only applies to those cases where the parties are silent as to the effect of such statements, and does not hinder the parties from agreeing that they shall be warranties; that where the property is held subject to a vendor's lien for a part of the purchase-money, this is not a sole and unconstitutional ownership. Ct. Appeals, Kentucky, September 19, 1877. Farmers & Drovers' Ins. Co. v. Curry et al. (Chic. Leg. News.)

Will revocation of: destruction of subsequent will revoking former one.-Where a will, which revokes a former will, is destroyed by the testator animo revocandi, the former will, though remaining in existence uncanceled, is thereby not revived; Code of 1873, ch. 118, $ 9. Sup. Ct. App., Virginia, Sept. 1877. Rudisill's Executor v. Rodes (Va. L. J.).

RECENT ENGLISH DECISIONS.

NEGLIGENCE.

Duties of contractor and sub-contractor: question of

ers and contractors, who, after the outside of a house was finished, had removed the outer hoarding and had employed a sub-contractor to do the internal plastering. One of the men employed by the sub-contractor, in walking, shook a plank which caused a tool to fall out of a window of the house, and the tool in falling injured the plaintiff who was passing along the highway. The jury found that the hoarding had been properly removed, but that the injury was caused by the negligence of the defendants in not providing some

Municipal corporations: liability for damages from fact: unforeseen accident.-The defendants were buildfrightful object allowed on streets.-Where a city licenses an exhibition of wild animals (in this case, two large bears), knowing that it is calculated to frighten horses and endanger the lives and property of persons traveling in the streets, and the officers and agents of the city knowingly and carelessly allow one of its streets to be obstructed by such exhibition, and a person traveling with a team along such street is injured in consequence of the team becoming thereby frightened and unmanageable, the city is liable in damages. Sup. Ct., Wisconsin, November 20, 1877. Little v. City of Madison (N. W. Rep.).

Municipal corporation: garnishment.-A municipal corporation cannot be garnisheed for wages due an employee. Ct. Appeals, Texas, October, 1877. Highland v. City of Galveston (Tex. L. J.)

Removal of cause: reference of canse before application for removal.-A cause was referred to a referee under the statute of Iowa for trial, in vacation. A petition, affidavit and bond were filed in the office of the clerk of the State court, under the Revised Statutes, section 639, subdivision 3, for the removal of the cause to the Federal court. Held, not to have the effect to divest the jurisdiction of the State court, or of the referee to proceed to a trial pursuant to the order of reference. Under section 639 of the Revised Statutes, a removal of a cause from the State court cannot be effected in vacation without any action of the State court. U. S. Circ. Ct., Iowa, October 23, 1877. Scott v. Otis (Chic. Leg. News).

Removal of cause to Federal court: notice to opposing party not required.—Where, in a proper case, an application is made, in terms of the act of Congress of March 3, 1875, for removal of a cause from the State court to the Circuit Court of the United States, a sufficient petition and bond tendered by the applicant should be accepted, whether notice has been given to the opposite party or not. The act does not provide for notice, and none is necessary. Sup. Ct. Georgia, Oct. 2, 1877. Ficklen v. Tarver.

Suretyship: liability of surety on promissory note: remedy of surety: statute of limitations.—Although the administrator of a principal in a note may defeat a recovery upon the note by the plea of the statute of limitations, yet the exoneration of such administrator does not relieve the sureties of his intestate from lia

bility. When the surety on such a note is compelled to pay the debt, he then has cause of action against the administrator of either the principal for the amount so paid, or the administrator of a co-surety for pro rata contribution. While the surety is entitled to his motion, upon rendition of the judgment, yet his cause of action is the payment of the judgment, and the statute begins to run from that time, and not from the rendition of the judgment. Sup. Ct., Tennessee. Reeves v. Pullam (Tenn. L. Rep.).

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other protection for the public. Held, that the defendants were entitled to judgment, for there was no evidence that the falling of the tool was a probable accident which might reasonably have been foreseen, so as to make it the duty of the defendants to provide against it. By Lord Coleridge, C. J., and Bramwell, L. J. (Brett, L. J., doubting), that if it was the duty of any one to supply protection against the consequences of the falling of the tool, it was the duty of the subcontractor and not of the defendants. (Bridges v. North London Railway Co., L. R., 7 H.L. 213, discussed.) Pearson v. Cox, L. R., 2 C. P. D. (C. A.) 369.

PATENT.

Licensee under, may not question validity.-A licensee under a patent cannot, in any way, question its validity during the continuance of his license. But he may show that what he has done (in respect of which patent royalties are claimed from him) does not fall within the limits of the patent, but is something extraneous to it. Per Lord Blackburn. A licensee un

der a patent is in a situation analogous to a tenant, who, during the tenancy, cannot dispute the title of the lessor to any of the land held under the lease; but who is, nevertheless, at liberty to show that part of the land he actually occupies is really not comprised within the lease, but belongs to himself under some other right. Semble, that in an action on a patent, where such an issue has been raised, evidence of the existence of foreign specifications of an earlier date, preserved in and obtained from the patent office, might be admissible. Observations on this matter. The words used in a patent must be construed, like the words of any other instrument, in their natural sense, according to the general purpose of the instrument, in which they are found. In this case the word parallel" was construed in its popular and not its purely mathematical sense. Clark v. Adie (No. 2), L. R., 2 H. L. (E.) 423.

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OBSCENE PUBLICATION.

Absence of corrupt motivę: indictment: omission to set out words charged as obscene: practice.-In an indictment for the publication of an obscene book, the fact that the book is described by its title only, without setting out any of the words charged as obscene, is no ground for a motion to quash the indictment or arrest the judgment. Semble, that such omission of

the words charged as obscene is not open to objection by demurrer or otherwise. The Queen v. Bradlaugh, L. R., 2 Q. B. D. 569.

SHIPPING.

1. Bill of lading: liability of shipowner: "not accountable for rust, leakage, or breakage."-The defendauts caused to be shipped on board the plaintiff's vessel bales of palm baskets and barrels of oil, under a bill of lading containing the clause, "Not accountable for rust, leakage, or breakage." During the voyage some of the oil escaped from the barrels, and damaged the palm baskets. Held, that the clause in the bill of lading, exempting the plaintiff from responsibility for "leakage," did not extend to damage caused by the oil which had escaped from the barrels, and that the plaintiff was liable to compensate the defendants for the injury done to the palm-baskets. Thrift v. Youle & Co., L. R., 2 C. P. D. 432.

2. Construction of charter-party liability of shipowner to charterers for negligence of master and crew.The plaintiffs hired from the defendant a vessel under a charter party, by which the vessel was let to the plaintiffs for a specified time, and they were to have the whole reach of her holds except what was reserved to the owner for the crew; the crew were to assist in loading and discharging, and the captain was to sign bills of lading and to furnish to the charterers a copy of the log. The defendant engaged and paid the master and crew. Whilst the vessel was upon a voyage under the charter-party, with a cargo on board belonging to the plaintiffs, she and her cargo were lost by the negligence of the master and crew. Held, that the master and crew were the servants of the defendant for the purpose of navigating the vessel, and that he was liable to compensate the plaintiffs for the loss sustained by them. The Omoa and Cleland Coal and Iron Co. v. Huntley, L. R., 2 C. P. D. 464.

BOOK NOTICE.

FRANK ON THE BANKRUPT Act.

The Bankrupt Act of 1867, as embodied in the Revised Statutes, consolidated with its amendments, including all subsequent amendatory and supplemental acts. Third Edition, with Notes. Compiled with the rules and index, by Nathan Frank, of the St. Louis Bar. St. Louis: The Central Law Journal, 1877.

Fo

OR the practitioner who desires to have the Bankrupt law, with the adjudications of the courts explanatory of the various provisions in a concise and accurate form, we know of no work equal, in every respect, to the one before us. The present edition gives the entire bankruptcy law as it now exists. All the various statutes upon the subject, the original act of 1867 and its amendments, together with the title "Bankruptcy" in the Revised Statutes of the United States, are collected together and consolidated, so that the laws are presented as they should be read. Appended to those sections whose meaning has been passed upon by the courts are brief syllabi of the decisions, giving in a few words the points determined. The paragraphs containing these annotations are numbered successively through the volume, for convenience of reference. The work of the editor seems to have been carefully and thoroughly done, and will be appreciated by those who have occasion to use his volume. The general orders in bankruptcy, promulgated by the Federal Supreme Court, and a few necessary forms are appended. The index to the volume is unusually excellent, and adds greatly to its value.

The work is well printed, on good paper, and we believe it will be very favorably received by those of the profession interested in bankruptcy law.

BENCH AND BAR.

It is said that the late Senator Morton hated his trade of hatter, but, to please his father, he learned it thoroughly. He made but one hat, however, and that was exceedingly well done. His son, Oliver, intends to study law as soon as he graduates at Yale, and will practice at Indianapolis.

Judge E. G. Loring has tendered to the President his resignation as Judge of the Court of Claims, to take effect on the first of January. Judge Loring is seventy-six years old and has been on the Court of Claims bench about twenty years. He resigns under the retiring act, and will receive full pay during the rest of his life. The President has nominated J. C. Bancroft Davis to fill the vacancy.

The Prince of Wales is a lawyer, or rather, a barrister. He was called to the bar a few years ago at his own desire and with the usual formalities, and took the oath prescribed on admission. He was at the same time made a Master of the Bench, the Benchers being the governing body of the Society of the Middle Temple. His portrait has recently been painted in the Bencher's silken robe, and is to be placed in the noble old hall of the Middle Temple as a record of so noteworthy a circumstance as a Royal Prince's entrance upon the legal profession.

Jonathan Cogswell Perkins died at Salem,

Mass., on the 12th inst., of heart disease. He was born at Ipswich, Mass., Nov. 21, 1809, was graduated from Amherst College, pursued his law studies at Harvard University, and was admitted to the bar in 1835. He held for some years the position of Judge of the Court of Common Pleas of Massachusetts, and served in the State senate. He was best known, however, as a law writer and commentator, the following works among others having been edited and annotated by him: "Chitty's Criminal Law," "Chitty on Contracts," nine volumes of Massachusetts Reports," Jarman on Wills,' Abbot on Shipping," 'Daniell's Chancery Practice," "Collyer on Partnership," "Chitty on Bills and Notes,' Arnould on Insurance, Angell on Water Courses," "Chitty on Pleadings," "Williams on Executors," "Sugden on Vendors, Benjamin on Sales," and several volumes of Chancery reports. His annotations were valuable and were highly spoken of by Charles Sumner and others.

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CORRESPONDENCE.

THE CONVICTION OF JOHN BOWMAN.

To the Editor of the Albany Law Journal:

SIR-I notice that a correspondent in the JOURNAL of the first instant makes inquiry for the facts in regard to the murder for which the boy, John Bowman, was convicted in this county, in 1812. I will say that this boy, less than ten years of age, was indicted for the murder of a small girl, his playmate. He killed her in a cruel manner with a club, and dragged the body to the bank of the river and covered it with brush to conceal it. It is said that the boy was somewhat deficient in intellect, and that the provocation for killing the little girl was that she refused to play with him. There are persons still living here who can remember the trial, and probably the precise facts of the murder. The account of his trial and conviction, so far as the records in our county clerk's office show, will be found in Burton's History of Herkimer county, on pages 285 and 286. The boy was ably defended by the late Judge Daniel Cady, who was then one of the best lawyers in the State. Justice Van Ness was the judge who presided at the trial.

I understand that while there seemed to be no doubt

in the minds of intelligent people at that time, who were
informed of the facts, that the boy was guilty of the
orime of murder, yet no one wanted him hanged, and
the sentiment was universal in favor of a commu-
tation of the sentence. For this purpose, as the Gov-
crnor then had no power under the constitution or
laws to commute the sentence, the Legislature was ap-
plied to and the act was passed to (which your corre-
spondent refers.
Yours,
S. EARL.

HERKIMER, N. Y., December 5, 1877.

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Judgment affirmed, with costs- Kinsey v. Leggett; First National Bank of Buffalo v. Alberger; First National Bank of Buffalo v. Wood; Griffin v. Saloman; Story v. Saloman; Lawrence v. Palmer. Judgment reversed and new trial granted, costs to abide event - Miller v. Long Island Railroad Co.Appeal dismissed, with costs- Sixth Avenue Railroad v. Gilbert Elevated Railroad.- Remittitur amended and motion denied - Allen v. Judson.- Order of General Term reversed and judgment ordered on verdict, with costs-Keeney v. Home Insurance Co.Order reversed and motion to vacate order of arrest granted, with costs- Madge v. Puig.- · Order granting new trial affirmed and judgment absolute for defendant on stipulation, with costs-King v. Greenway.

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-Judgment of General Term and decree of Surrogate reversed and cause remitted for further hearing before the Surrogate, with costs of all parties to be paid out of the estate Chamberlain v. McKibben.

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NOTES.

St. Charles Hotel and the tract of land which has been the subject of controversy between the city of New Orleans and the defendant; 10,000 acres of land adjoining Port Hudson and 23,000 acres upon which Baton Rouge is located, which were the subject of a Spanish grant in 1802, and were conveyed to Zimmerman and his heirs. They charge that said defendant has, by a multiplicity of suits, without making plaintiffs parties thereto, obtained judgments of ouster against the tenants, and allege that within the last year she has offered to compromise with said plaintiffs, thus recognizing their claim, and they have an equitable claim against her to remove the cloud upon their title, and they pray that defendant may be compelled to make to them quit-claim deeds, etc.

A queer case is now on trial in St. Louis. A little girl, it is alleged, died from the effects of poison, the result of wearing striped stockings. The parents of the child sue the merchant who sold the stockings for $5,000. The defense admits the sale, but denies the efficacy of the remedies used for the eradication of the poison, even had it been in the coloring of the stockings. Chemists and medical experts are giving testimony pro and con, and the case is exciting a great deal of attention, not only from its novelty but from the general use by ladies and children of bright striped stockings similar to those worn by the child.

Trial, by jury, says the London Standard, has obtained barely ten years in Russia, and leads to curious results. A prisoner, after confessing his guilt in court, often finds the jury differ with him, a verdict of "not guilty" being returned. This arises, in part, from the rough-and-ready way in which a jury, especially if composed of peasants, will look at the prisoner and the whole circumstances, irrespective of evidence in particular. A notorious offender should be punished, a decent citizen should be acquitted, they think. They listen but little to the advocate's eloquence, and fail to comprehend the need of him. "What difference is there between paying an advocate and bribing a judge?" they argue. Then, again, the Russian criminal law fixes minutely the punishment for each category of crimes, and leaves scarcely any latitude to the judge for extenuating circumstances and the like. Now, Russian juries have their own methods of look- · ing at the various kinds of wrong-doing, and that which the code defines as very sinful indeed and deserving of transportation to Siberia, or penal servitude with hard labor may appear to the enlightened twelve a very minor offense, or no offense at all-a thing they would, under certain circumstances, do themselves. In many of these trials the jury will

HE current number of the Journal du Droit International Privé has several very valuable contributions upon subjects of private international law. The first (De la situation légale des sociétés étrangères en Belgique), by Professor Namur, of the University of Liege, gives a resumé of the law of Belgium in relation to foreign associations for the purposes of trade, both corporate and otherwise. Professor Guillard, of the University of Berne, concludes a series of articles on financial law, entitled La Bourse les agents de change et les opérations de Bourse dans les legislatures des étrangers, and M. Mermilliod, a well-known Parisian avoué, furnishes an essay upon Agreed Valuation on Marine Insurance. An article upon American Naturalization Law, translated from the American Law Review, also appears. The summary of recent intelligence in relation to international jurisprudence as usual is extremely interesting. The Illinois State Bar Association holds its annual meeting at Spring-weigh its own plain common sense and kindly feeling field, on the 3d of January next. The exercises terminate with a bar supper to be held at the Leland House. The entire bar of the State are invited to be present.

There are new claimants for the property the Supreme

Court of the United States has awarded to Mrs. Gaines. Suit has been commenced in a United States court by certain individuals of German ancestry, who allege that in 1835, one John Michael Zimmerman died intestate in Louisiana, leaving a considerable amount of personal and real estate in that State, but left no legal representative there; that the plaintiffs are entitled to the property, a parcel of land on which is erected the

for a fellow-creature against the clearest evidence, and will find the prisoner "Not Guilty." In all cases of assaults, cruelty, or dishonest dealing in matters commercial the mind of a jury of Russian peasants inclines toward mercy. The position of women is so low in Russia that "husband's rights" are alone recognized, and these include the privilege of enforcing his will by chastisement if necessary; and no jury will convict unless the assault has been one of a serious kind indeed. Juries of all classes are, however, very severe in cases of "crimes against the Deity," as they are called. In conclusion, it must be borne in mind that the minister at St. Petersburgh has all but unlimited powers, and the so-called independence of the judges" exists only in name.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, DECEMBER 22, 1877.

CURRENT TOPICS.

THE nomination of Mr. John Baxter to be United

States Circuit Judge of the Fifth Circuit, composed of the States of Michigan, Ohio, Kentucky and Tennessee, was confirmed by the Senate previous to adjournment. The opposition to his confirmation, which at one time seemed quite strong, disappeared when the final vote was taken. This result is gratifying, as the vacancy was one that needed to be filled, and the nominee was in every respect well

fitted to fill it. The nomination of Mr. J. C. Bancroft Davis to the place on the Court of Claims bench, made vacant by the retirement of Judge Loring, was also confirmed.

The Supreme Court of the United States is disposing of the business before it with considerable diligence. Previous to the coming of Judge Harlan, about a dozen cases a week were finally passed upon in addition to the motions determined, which numbered about as many as the cases. The addition of another judge will enable the court to do somewhat more than heretofore, but it is said that legislation is required to relieve it from an overpressure of business, and Congress is urged to pass, at its present session, the bill of Judge Davis, or some measure of similar character.

The law relating to the competency of witnesses has in this State undergone great changes during the past thirty years. But a little while ago almost every one who would naturally know the facts in relation to any matter was liable to be disqualified from testifying about it on account of the supposed temptation there was for him to speak untruly, or for some other equally weighty reason. But in 1848 the Code of Procedure removed in civil cases the ban of incompetency from one class of persons interested in the event of the action, and partially from another— parties to the action. But the privilege in respect to parties only went to the extent of permitting either party to call his antagonist, and if the person called should testify to any matter not in response to his direct examination, the other party might then himself testify as to the same matter. This was as far as the framers of the Code dared to go. A few years afterward an amendVOL. 16.- No. 25.

ment was made permitting a party to testify in his own behalf. This experiment worked so well in respect to civil actions, none of the evils feared having accompanied it, that it was thought well to adopt a like rule in criminal procedure, and allow a prisoner on trial to testify in his own behalf. Then husband and wife were made competent witnesses for and against each other in most cases. These latter changes have proved beneficial, and we think no one would be willing to have the old rules restored. Another rule as to competency has, under section 832 of the new Code, followed the others mentioned into

oblivion, namely, that disqualifying a convicted felon. This disability, like a deprival of the right of franchise, was imposed as a penalty upon the convict, but it could in no way harm him, while it was almost certain to harm some innocent person who was in need of his testimony. In such cases the governor could restore competency, but to have this done was troublesome, and involved expense and time. Besides, occasions occurred when the necessary witness was yet in prison, and the public interests forbade the executive action essential to make him competent. It may seem a dangerous innovation to permit a felon in State's prison to appear as a witness, but we are sure the good resulting from a law rendering such an event possible, will by ten-fold exceed the harm, and, indeed, we imagine that no harm at all will be done.

Mr. Lynde has introduced into the House of Representatives a bill providing "that whenever an action or suit shall be commenced for the foreclosure of a mortgage upon any real estate, to which action or suit the United States are or may be a party, by reason of any lien or other claim upon such real estate, which shall have attached or accrued subsequent to the making of such mortgage, it shall be the duty of the United States attorney for the district in which such real estate is situated, upon being served with process in such action or suit, to appear therein for the United States." The necessity for such a provision arises from the fact that the United States are not subject to an action, and because there is no way to cut off a lien by judgment or mortgage in favor of the United States, unless the United States shall appear. The propriety of such a statute as that proposed by Mr. Lynde would seem to be obvious, and we hope that it will, in due time, be enacted.

A curious story comes from Colorado, which, if true, indicates a degree of lawlessness that we have thought impossible, even in the border States and territories. One of the judges of that State, who attempted to hold a court in a locality where such an institution does not seem to be welcome, was commanded to desist by an individual said to be a deputy sheriff, and who pretended to be acting un

der the authority of what he said was a warrant commanding the judge to deliver up the books and seal of the court and discontinue all proceedings. The judge ordered this individual to sit down, and threatened him with arrest if he did not do so. The answer was an attack upon the judge by the pretended officer, who struck him, and also fired a pistol at him. A general riot followed, but the judge was able to secure the records and seal of the court. Application has been made to the governor for assistance in restoring order in the troubled district, and it is to be hoped that the court may be soon able to resume its sitting in safety.

Our English brethren have a vast deal of trouble with their new system of procedure, which appears to be full enough of technicalities to satisfy the sharpest kind of a lawyer. One of the legal journals says that, at present, the rules are so perplexing and uncertain that it is impossible for a solicitor to take almost any step without danger of making a fatal mistake. We imagine the difficulties which annoy the profession and litigants come not so much from the new practice itself as from a disposition on the part of some of the judges to construe it in such a way as to make it unpopular. This was our experience in this State when the Code of Procedure first went into effect. A few of the judges who did not approve of it gave considerable trouble to those who practiced before them, by adopting principles of construction which embarrassed the operation of the statute. The Code, however, survived these covert attacks upon it, and later decisions by judges who favored it removed all the difficulties which had been raised by the earlier ones. When the new Code now in force came into effect there was no judicial antagonism to it, but a willingness to give it a fair trial. We have little trouble, therefore, in

the practical carrying out of its provisions, for counsel and courts alike do all that is possible to make them work harmoniously. Another thing which undoubtedly leads the English profession to believe that their new practice does not work well, is the circumstance that the courts do not dispose of the business brought before them as rapidly as it accumulates. This results, not from errors in the system of procedure, but from the increase of business which that system has induced, and which the courts, as at present constituted, are unable to

manage.

The law which was enacted in this State last winter for the purpose of preventing the perpetration of frauds upon farmers by the negotiation of notes given for worthless patent-rights, having been shown, by the decision of the Supreme Court of Michigan upon a similar statute, to be of doubtful constitutionality, it will be well enough for the coming legislature to attempt to check the evil

which is aimed at, by some statute which will not be open to the objection of unconstitutionality. The matter is one of difficulty. A statute which would permit the defense of fraud to be set up against an innocent holder of a promissory note would put an end to the circulation of promissory notes fraudulently obtained, but such statute would be likely to encourage as much fraud as it would prevent, and is therefore not to be thought of. We think, however, that most if not all the "patent note" and other business of like nature might be stopped by a simple amendment to the law relating to costs. In suits brought upon promissory notes, it should be provided that if the defendant shall set up and establish fraud in the inception or negotiation of the note, the plaintiff shall recover no costs against him. This will leave the plaintiff a right to recover his debt if he is a bona fide holder for value, and will enable the defendant to litigate that question without the danger, if unsuccessful, of having to pay a heavy sum for endeavoring to protect himself from the consequences of a harsh rule of law. The law proposed has this advantage over the one now on the statute book, that it covers every device which scoundrels may resort to, to procure negotiable paper instead of being limited to notes given for patent rights.

THE

NOTES OF CASES.

HE case of The Victor Sewing Machine Co. v. Hardus, decided in the First District Appellate Court of Illinois, on the 14th of last month, and reported 1 Chic. L. J. 63, arose upon one of the well-known contracts for the sale of a sewing machine, which are familiar to the inferior courts of the country, but which seldom come into courts of record. The transaction in this case was the usual one. A sewing machine agent offered a machine for sale to a Norwegian woman, who understood the English language imperfectly, and was unable to read it. By dint of promises to furnish work by which she could earn sufficient to pay for it, he induced her to agree to purchase the machine. He then produced the contract which was in terms one of lease, by the woman from the company, without any agreement to give title, and induced her to sign it. writing contained a statement printed across it, that "any contract made with any agent differing in any respect from the terms of this lease, will not be binding upon" the company. There were blanks necessary to be filled out, to make the instrument complete when the statement was placed across it. The woman made some payments, and not being able to procure work from the company, was unable to complete the amount she was to pay. A collector of the company, by threatening her with imprisonment, compelled her to give up the machine. She then brought action in trover to recover its value. The court held that the possession of the machine by

The

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