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and if the shavings are so set on fire, and the property of the ice company, in consequence thereof destroyed, no recovery can be had against the said railroad company. Kennebec Ice and Coal Co. v. Wilmington & Northern R. Co. Opinion per Curiam. [Decided Feb. 25, 1884.]

AGENCY-EVIDENCE-CONTRACT-QUANTUM MERUIT - WANT OF PRIVITY.-A. died intestate, seised of certain real estate, leaving four children and a widow. Partition was made of the estate among the four children, and a portion set aside as dower for the widow. B., one of the sons, assumed charge of the whole property, and entered into a contract with C. for curbing and grading streets, which were cut through it. B. subsequently left the city, leaving the estate in charge of his counsel, who through an agent, D., entered into a further contract with C. to finish some grading and curbing of the widow's share, which had not as yet been done. On a suit brought by C. to recover for grading and curbing, the widow having died after suit brought, evidence to prove agency was offered, as to which it was held that agency cannot be established by the declarations of an agent. Held further, that notices from the highway department to pave, and contracts and settlements with the agent of the whole estate regarding the separate portions of the children, were not evidence of authority in him to bind the defendant to a contract for work on the dower farm. Held further, the fact that work was done upon the dower farm in pursuance of notice from the city, lays no foundation for a quantum meruit against a remainderman. Creighton v. Boudinot. Opinion per Curiam.

[Decided Jan. 28, 1884.]


NEGOTIABLE INSTRUMENT-CONTAINING PROVISO-ACCOMMODATION INDORSER-JOINT MAKER.- Where an instrument is in the form of a promissory note, and recites a certain sum payable at a certain time, the fact that it contains a proviso that upon the happening of a certain event the note shall thereupon become due and payable, does not destroy its character as a promissory note. A party who indorses a note as surety, and for the accommodation of the maker to give him credit with the payee, is held to be a joint maker of the note, and to adopt the consideration of the maker. Good v. Martin, 1 Col. 165; and S. C., 2 id. 218. Sup. Ct. Col., Feb., 1884. Kiskadden v. Allen. Opinion by Stone, J. (3 Pac. Rep. 221.)


THE following decisions were handed down Wednes

Nov. 25, 1884:

Judgment affirmed without costs - Margaretta Thomas, appellant, v. Francis C. Haggerman, respondent. Judgment reversed, new trial ordered, costs to abide the event-Ellen Urquhart, appellant, v. City of Ogdensburgh, respondent; E. C. Kellum, supervisor, etc., respondent, v. Jos. W. Clark and others, appellants. Judgment affirmed with costs--Edward Hill, appellant, v. John Blake et al., respondents; Charles H. George and another, appellants, v. Richard R. Grant and others, respondents; Van Buren Wheat and another, respondents, v. Harvey Rice et al., impleaded, etc., appellants; Herkimer Co.National Bank, respondent, v. Alonzo Rust, impleaded, appellants; David Cronin, overseer, etc., respondents, v. Willard F. Stod

dard, appellant; Frank J. Whelan, respondent, v. Ansonia Clock Co., appellant; Central National Bank of New York, appellant, v. David Valentine et al., respondents; Mayor, etc., respondent, v. Broadway and Seventh Avenue R. Co., appellant; People, respondent, v. Julius R. Thompson, appellant; Hiram Dillenbeck, respondent, v. Horace Dygart, appellant; James Van Tassel, respondent, v. N. Y., L. S. & W. R. Co., appellant; Bank of Attica, respondent, v. Metropoli tan National Bank of New York, appellant; Thomas Colute, appellant, v. Thomas R. Sharp, receiver, etc., respondent; Schuyler G. Chadsey, appellant, v. William H. Guion, respondent; Simon Vau Wickley and others, appellants, v. Mechanics and Traders' Ius. Co., respondent; F. May Feeter, respondent, v. George D. Gilson, appellant; Albert C. Clark, respondent, v. Sid. ney Dillon et al., appellants; Lewis S. Chase, appellant, v. Second Avenue R. Co, respondent: Elizabeth H. Putnam, respondent, v. Cornelia M. Stewart, appellant; People, ex rel. Pauline Friedland and others, respondents, v. Albert F. Mitchell and others, trustees, appellants; Anna Seidlinger, respondent, v. Brooklyn City R. Co. and others, appellants; Louise Seidlinger v. Same. Judgment reversed, new trial granted, costs to abide event-Nancy C. Weston, ap pellant, v. Brayton Ives, president New York Stock Exchange, respondent; John Hayes, respondent, V. Forty-second Street and Grand street Ferry Company, appellant; Betsey Newman, appellant, v. Abram Nellis, respondent; Samuel McRick ard, appellant, v. George C. Flint, respondent; Ezra W. Acer, appellant, v. Levi Hotchkiss, impleaded, etc., respondent.Order of General Term affirmed, and judgment absolute rendered on the stipula tion, with costs-John H. Drake, appellant, v. Robert Seaman and another, respondents. -Judg. ment reversed, with leave to plaintiff to amend his complaint upon payment of costs - Didymus Thomas, respondent, v. Utica & Black River R. Co., appellant.-Judgment affirmed and judgment absolute ordered on the stipulation with costs-James H. Bennett and another, respondents, v. Andrew R. Culver, appellant.-Order of General Term reversed and judgment directed for the defendant on the verdict with costs-Metropolitan National Bank, respondent, v. Wm. B. Serret and others, appellants.-Order of General Term reversed and judgment of trial court affirmed with costs-Sherburne Shaw, respondent, v. N. Y., L. E. & W. R. Co.,appellant.-Order affirmed and judgment absolute ordered for the defendant with costs-Mary E. Works, appellant, v. City of Lockport, respondent.-Judgments of General and Special Terms reversed and judgment of county judge of Tompkins county affirmed with costs-People, ex. rel. John H. Myers, respondent, v. Frederick Storm, appellant. Judgment modified by inserting a clause adjudging priority of right to the surplus water in plaintiff as against the individual defendants and in case of deficiency, and as so modified, affirmed with costs to the Erie railroad, but without costs to the other parties-Riley Read, appellant, v. Erie R. Co., Hugh Jewett and others, respondents. Judgment modified by striking therefrom all the interest on the various sums ordered to be paid and as thus modified, affirmed with costs in this court to the city to be paid by the plaintiff and without costs as to the other par ties-Mechanics and Traders' National Bank, appellaut and respondent, v. Mayor, etc., of New York et al., respondents and appellants.Order of General Term reversed and judgment of Special Term affirmed, with costs-Rider Life Raft Co., appellant, v. John Roach, respondent, and George B. Stetson.-—Judgment of General Term affirmed, with costs-Thomas F. Baker et al., appellants, v. Levi Hotchkiss and others, respondents.

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The Albany
Albany Law
Law Journal.



MR. DAVID DUDLEY FIELD has issued in a

pamphlet the fourth part of the Code of Civil Procedure of 1849, treating of the subject of evidence. This has always seemed to us the most admirable of the work of the commissioners of that period. The subject is peculiarly adapted to codification, and there are no such objections to such a codification as may be raised against general codification. The vital principles of evidence are here expressed in two hundred and thirty short sections. The adoption of this part of the code, and the publication of it, with references under each section, would furnish the most complete, concise and convenient treatise on evidence ever given to our profession in this country. Whatever else may fail, we hope this will be adopted this winter. Mr. Field says, in a prefatory note, one framed upon the model of the New York report was adopted in California, Oregon and Dakota more than ten years ago, and as I am informed, has there proved successful."


A privately printed memorial of the late Judge

Addison Gardiner has reached us. It contains the tributes of the Court of Appeals, and of the Monroe county bar, with the address of Mr. William F. Cogswell, on behalf of that bar, and the address of the Rev. Charles E. Robinson, of Rochester. It is prefaced by a fine steel engraving of the deceased. He was a strong, wise and upright judge, and all that is here said of him is true, and in good taste.

Among the curiosities of legislation may be cited the English Post-office Protection Act of 1884, a most remarkable example of the prescription of exċessive punishment. It denounces a fine or imprisonment of possibly twelve months for sending certain articles through tne mail. The London Law Times gives us an idea of the act, as follows: "It is of course an unwise thing to send a postal packet containing a pair of scissors 'not properly protected,' and a judicious person will stick them into a cork, and wrap them round with cotton wool; but it is surprising to find that carelessness of the above description is punishable with a fine or imprisonment, with or without hard labor for a period not exceeding twelve months, although the offending packet may have been detained at the post-office so that no evil could possibly have happened. A post-office letter box is likewise protected from every kind of contamination under similar penalties. It will be observed that there are no words such as 'wilfully or 'maliciously,' so that no mens rea or guilty intent will be required. There is not even the word 'negligently.' We are quite unable to see why VOL. 80-No. 22

such Draconian legislation is necessary to protect the government servants and property in a commercial undertaking like the post-office." The Times very justly says that this act "is really a specimen of savage legislation, and extraordinary punishments for trivial misconduct." Such legislation generally defeats itself, and becomes a dead-letter.

In the case of the Mignonette cannibals, Baron Huddleston charged the grand jury strongly against the defendants, and they found an indictment for murder, and on a trial a special verdict was taken, subject to the opinion of the court in banc. In his charge the Baron said: "It is impossible to say that the act of Dudley and Stephens was an act of self-defense. Parker, at the bottom of the boat, was not endangering their lives by any act of his; the boat could hold them all, and the motive for killing him was not for the purpose of lightening the boat, but for the purpose of eating him, which they could do when dead, but not while living. What really imperiled their lives was not the presence of Parker, but the absence of food and drink. It could not be doubted for a moment that if Parker was possessed of a weapon of defense-say a revolver- he would have been perfectly justified in taking the life of the captain, who was on the point of killing him, which shows clearly that the act of the captain was unjustifiable. It may be said that the selection of the boy - as indeed Dud

ley seems to have said- was better, because his stake in society, having no children at all, was less than theirs; but if such reasoning is to be allowed for a moment, Cicero's test is that under such circumstances of emergency the man who is to be sacrificed is to be the man who would be the least likely to do benefit to the republic, in which case Parker, as a young man, might be likely to live longer, and be of more service to the republic than the others. Such reasoning must be always more ingenious than true. Nor can it be urged for a moment that the state of Parker's health, which is alleged to have been failing in consequence of his drinking the salt water, would justify it. No person is permitted, according to the law of this country, to accelerate the death of another. Besides if once this doctrine of necessity is to be admitted, why was Parker selected rather than any of the other three? One would have imagined that his state of health and the misery in which he was at the time would have obtained for him more consideration at their hands. However it is idle to lose one's self in speculations of this description. I am bound to tell you that if you are satisfied that the boy's death was caused or accelerated by the act of Dudley, or Dudley and Stephens, this is a case of deliberate homicide, neither justifiable nor excusable, and the crime is murder, and you therefore ought to find a true bill for murder against one or both of the prisoners." The cannibalism might be regarded with more toleration if the adults had given the boy a chance for his life by casting lots, or if the boy and one of the adults had

sacrificed the other adult without resort to lot. But the two elders seemed to have realized the selfishness of "guzzling Jack and gorging Jemmy," in Thackeray's Ballad of "Little Billee," without the providential rescue in that case.

The English law journals are now exercised about the special verdict. They say the proper course would have been to direct a conviction, and reserve the point of law. They say the court cannot pronounce a verdict of guilty; that there is no such verdict, and they do not exactly see how the prisoner can again be jeopardized. This is a point of practice which ought to be well settled, and with which the Baron ought to be perfectly familiar, and we dare say he is right, although the proceeding does seem peculiar.

But it does not seem nearly so peculiar to the English press as the conduct of Justice Manisty in setting aside the verdict of the jury in the AdamsColeridge libel suit. We have no business with nor disposition to intrude upon the domestic phases of this affair. But we may say that if Mr. Adams did not want to marry Miss Coleridge he can hardly allege the efforts of the defendant to break off the match as injurious to him. We do not understand that he avers any other damage. Indeed, if he suffered any, it must have been through his own unnecessary promulgation of a private letter from the defendant to Miss Coleridge, put into his hands by the receiver. Technically however the writing of the letter was a libel, unless justified by its truth or its confidential character, and the latter could not save it if the motive was malicious; and the question of the motive was for the jury, and was properly left to them. Why then was their verdict, finding malice and assessing damages, set aside? We cannot as yet understand how the justice's action can be justified, unless on the ground of excess of damages. The damages certainly were grossly excessive. To compel a brother to pay $15,000 for writing a private letter to his sister, about her supposed suitor, when he was not her suitor, and it did not hurt him, seems to us to show something like malice in the jury. We think it would be hard to maintain such a verdict on this side of the Atlantic, although the rule is very liberal. Indeed, a verdict of such an amount in any case must have been a very rare occurrence among us. But as lawyers we are curious to know why the justice set the verdict aside. Perhaps our new London correspondent can tell us in his next letter. Our London exchanges are

silent on the case.

The death of Henry Smith has deprived the Albany bar of one of its recognized leaders, and the State of one of the greatest jury lawyers of the day. Mr. Smith was not a learned lawyer, although he was always master of the law essential to his case. But for native strength and ingenuity, for breadth and grasp of comprehension, for knowledge of

human nature, for tact, for wit and good-nature, for self-possession and ready resources, he was remarkable. In one point he was pre-eminentalmost unrivalled - namely, his power of statement, which of itself was better than most men's argument. He was remarkably handsome, reminding one of the portraits of Fox; he had a noble voice; his elecution was forcible, dignified and fluent; and he was a consummate actor and master of facial expression. In short, he was an easy master of the art of advocacy, and it was a delight to lawyers as His nature was genial and generous, and he had well as to juries and the people to listen to him. borne up bravely and cheerfully against a painful disease for several years, dying in harness, uselong to be regretted. ful to the last, affectionately to be remembered, and


'N Piolett v. Simmons, Pennsylvania Supreme Court,

430, ou

Sunday, driving along the public road, his horse became frightened at a barrel and truck lying along the side of the road, which had been used by defendants for whitewashing their fence; the horse reared, plunged a few steps forward, fell to the ground, and instantly died. In falling he upset the carriage, which fell upon the plaintiff and caused the injuries for which he brought this suit. Held, that unless there was something unusual or extraordinary in the structure and appearance of the whitewashing apparatus, which would naturally tend to frighten horses of ordinary gentleness and training, it was not negligence to use it, and its reasonable use for no longer time than was fairly required along the highway in whitewashing defendants' fences would not subject the defendant to liability, even though some horses might take fright at seeing it. The court cited Mallory v. Griffey, 4 Norris, 275; Morse v. Richmond, 41 Vt. 435; Foshay v. Glen Haven, 25 Wis. 288; S. C., 3 Am. Rep. 73; Ayer v. Norwich, 39 Conn. 376; Card v. City of Ellswortb, 65 Me. 547; S. C., 20 Am. Rep. 722; Bartlett v. Hooksett, 48 N. H. 18; Young v. New Haven, 39 Conn. 435; Dimock v. Suffield, 30 id. 129; Com. v. Passmore, 1 S. & R. 219; City of Allegheny v. Zimmerman, 14 Norris, 287; and observed: "It seems to us it would be difficult to state a rational rule on this subject, unless it is accompanied with this limitation. For if persons are bound to guard against frightening skittish, vicious, timid and easily frightened horses, it will not be possible to state any limit of precaution which will be a protection against liability. The reason is that there is nothing as to which it can be definitely said that such horses will not frighten. On this subject the language of our brother Paxson, in the recent case of the Pittsburgh Southern Railway Co. v. Taylor, 41 Leg. Int. 84, is particularly apposite. He said: 'The frightening of a horse is a thing that cannot be anticipated, and is governed by no known rules

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In many instances a spirited road horse will pass in
safety an obstruction that a quiet farm horse will
scare at; a leaf, a piece of paper, a lady's shawl flut-
tering in the wind, a stone or a stump by the way
side, will sometimes alarm even a quiet horse. I
may mention, by way of illustration, that the sever-
est fright I ever knew a horse to feel was caused by
the sunlight shining in through the windows of a
bridge upon the floor.' If a farmer may not have a
barrel of cider, a bag of potatoes, a horse power, a
wheelbarrow or a wagon standing on his own prem-
ises by the side of a highway, except at the risk of
having his whole estate swept away in an action for
damages occasioned by the fright of an unruly horse,
the vocation of agriculture will become perilous in-
deed. * * * As we understand the law, there
is an absolute right in a property owner to use a
portion of the public highway for certain purposes
for a temporary period, and in a reasonable manner,
and this right may be exercised in derogation of the
right of the traveling public. The substance of the
doctrine is, that the mere exercise of the right of
obstruction for a lawful purpose imposes no liability
to pay for damages resulting therefrom.
be an unreasonable or negligent exercise of the right
in order to impose liability. To say that a man way
lawfully deposit brick and lumber on the highway,
in front of a lot on which he is erecting a building
with these materials, and yet if their presence has a
tendency to frighten horses, and some over-sensitive
horse does take fright at them, and run away and
cause damage, the person depositing the materials
is guilty of negligence, and shall pay the damage,
is merely giving a right with one breath and taking
it all away with another. In practical effect such a
right would be no right at all. Any pile of bricks,
stones, sand, lumber, or other building material in

tied up the thills of his wagon. If the thills had
been securely and properly fastened up, as they ought
to have been, the fastenings would not have been
broken by the blow which turned the wagon parti-
ally around and threw down the thills with such
violence as to occasion the fatal injuries. To make
the city responsible for the injury, some evidence
tending to show knowledge on its part or notice in
some form of the insecure or careless mode in which
the wagon was stored in the street must be shown.
The license did not authorize the negligence
which caused the death.
It was at most a
remote but not an immediate cause of the
injury; and it cannot be held as matter of law
that the license authorized any such negligence
as it is clearly apparent the defendant Marks was
guilty of in his mode of using the privilege
sought to be conferred by the license. If notice or
knowledge of the improper mode of tying up the
thills had been brought home to the public author-
ities the case would fall within the principle of
Hume v. Mayor, 74 N. Y. 273; and Hume v.
Mayor, 47 id. 639. The court at the trial held in
substance that the city had no power to license the
use of the street for the storage, and that by ille-
gally authorizing it, the city contributed to the cre-
ation of a public nuisance, and was therefore
jointly liable with the other defendants for the in-

It must

a street, has a tendency to frighten horses, and injury without regard to the question whether the

direct cause of injury was or was not some special negligence of the licensee to which the city made no direct contribution, and of which it had no notice or knowledge. This we think was going beyond the established principles governing such cases, for it would follow from such a rule that every mistaken excess of power authorizing the use or occupany of a public street would charge the city with liability for any and every act of negligence every person using the street might be guilty of. We think the true rule in such cases is that where the injury clearly results from the negligent mode in which the licensee exercises the privilege granted to him, which mode is not part of the license or grant, there must be some proof of negligence showing permission to use or acquiescence in the use of the mode after notice or knowledge on the part of the licensor. Brady, J., dissented.

almost any community there could always be found
some horses that would actually take fright at see-
ing them. But that circumstance alone will not
take away the right to deposit them in such a place.
There must be some abuse of the right, some un-
usual and extraordinary mode of arranging the
material such as will probably produce fright with
ordinarily gentle and well trained horses before it
can be fairly said liability arises." See Macomber
v. Nichols, 34 Mich. 212; S. C., 22 Am. Rep. 522,
and note, 528.

In Cohen v. Mayor, etc., 33 Hun, 404, the city of New York granted to M. a license to store his business wagon, when not in use, in the street in front of his grocery store. M. kept the wagon near the curb with the thills turned up and fastened with a string. A passing wagon struck the hind wheel of Marks' wagon, threw it around toward the sidewalk and broke the string which held up the thills, thereby allowing them to fali down upon and kill the plaintiff's intestate who was passing upon the sidewalk. Held, that the city was not liable. The court, by Davis, P. J., said: "If it be conceded, as

probably it must be, that the city had no legal right to grant the license to store or keep the wagon in the street, still its liability for the particular injury which caused the death of Cohen cannot, we think, be sustained upon proof of the mere fact of granting the license. That fact was not the immediate cause of the injury which resulted from the negligent driving of the defendant Muller and the insufficient manner in which the defendant Marks had

A singular point of evidence arose in Morris v. State, 95 Ind. 73. To an indictment for sending a threatening letter to extort money the defense was that it was a joke. The parties were intimate friends, and their was evidence tending to prove


The question of intent, in a criminal prosecution, is one of fact and often difficult to ascertain. The writing and sending of the letter set out in the indictment might, prima facie, import an intent to blackmail. Yet the circumstances under which it was written, and the previous relations of the parties, might be considered by the jury, either for the purpose of strengthening or rebutting the presumption of crime. The evidence offered by the appellant, and excluded by the court, would have tended to show that the letter was not sent with the intent to extort money."


N the case of Kingman v. Frank, the Supreme

that where a married woman having a separate estate or business, employs her husband to manage the same, and agrees to pay him a stated compensation for his services, a chose in action in his favor against her is created, which on her failure to pay can be reached by a judgment creditor of the husband; and this case suggests the subject of the husband's compensation generally when he acts as his wife's agent.

the defense and establish the defendant's good character. Held, that evidence that the receiver shortly before had played severe jokes upon the defendant was erroneously excluded. The court, by Hammond, J., said: "At the trial the appellant proposed to testify in his own behalf that a short time before sending the letter to Hart several 'rough jokes,' as they are termed, the character of which are set out in the bill of exceptions, were perpetrated on him by Hart and Deter. The evidence on the objection of the State was excluded. In this there was error. The fact of Hart and Deter playing 'rough jokes' on the appellant would not of course justify or excuse the writing of a letter with intent to extort money. But as bearing upon the COMPENSATION OF HUSBAND WHO ACTS question of such intent, it was proper for the jury AS WIFE'S AGENT. to know the previous relations of the parties whether their intimacy and conduct toward each other had been such as to make it reasonable that the transaction, upon which the indictment was based, was intended as nothing more than a jest. The gist of the offense charged in the indictment was the sending of the letter to Hart with intent to extort money from him. Unless such intent existed in the mid of the appellant at the time of sending the letter there could be no crime. If the letter was sent merely in sport to give annoyance, but with no intent to extort money, however reprehensible the act may have been, it would not constitute the of- 1. General Rule.- A husband may, as his wife's fense of blackmailing. The jury should have had agent, manage her separate property or separate busithe benefit of all evidence bearing upon the ques-ness (1) with or without compensation; (2) but tion of intent. Some of the 'rough jokes' which the neither he nor any creditor of his has in the absence appellant proposed to prove had been played upon of special agreement any right in the property manhim by Hart and Deter were quite as culpable as aged, earned or accumulated through his agency.(3) the sending of the letter complained of, if the send- Partnerships between husband and wife are not ining of it was by way of joke and without intent to cluded within this discussion. (4) extort money. The evidence offered, but excluded by the court, would have given strength and probability to the defense relied upon by the appellant. It is true that in criminal cases evidence of collateral matters is usually inadmissible. An exception to the rule exists however where such collateral matters bear upon the question of intent. Whart. Crim. Ev., § 46; Best Ev. 264; 1 Greenl. Ev., § 54. To constitute a crime an evil intent must combine with an act. 1 Bish. Crim. L., §§ 204, 285 et seq. In section 287, the learned author says: 'The doctrine which requires an evil intent lies at the foundation of public justice. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal. Criminal law relates only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist.' In the absence of a felonious intent to extort money from Hart at the time of sending the letter, the appellant could not be guilty. If, without such intent, the letter was sent only for the mischievous purpose of annoyance, the crime charged would not be made

2. Express Contract.-Contracts between husband and wife are in most States void,(5) and therefore there is usually no express contract by a wife to pay her husband for his services. (6) In cases when such contract can (7) and does exist, she may even be made his garnishee; (8) but in the absence of such contract neither he nor any creditor of his has any right against her or her property.(9)

3. Implied Contract. There is no implied contract that a wife will pay her husband for his services. (10) His first duty is to support her and his

(1) Schouler Husband and Wife, §§ 277-282.

(2) See Lewis v. Johns, 24 Cal. 98, 103; Gage v. Dauchy, 34 N. Y. 293, 299; Rush v. Vought, 55 Penn. St. 437, 445; Webster v. Hildreth, 83 Vt. 457, 458.

(3) See fullest discusion, Miller v. Peck, 18 W. Va, 75, 79– 97.

(4) Except as below.

(5) Scarborough v. Watkins, 9 B. Mon. 540, 545. (6) Gage v. Dauchy, 34 N. Y. 293, 297, 299; Abbey v. Deyo, 44 Barb. 874, 880.

(7) See 29 Albany Law Journal, 285.

(8) Lewis v. Johns, 24 Cal. 98, 108; Keller v. Mayer, 55 Ga. 406, 410; Kingman v. Franks, N. Y. Sup. Ct. Oct. 6, 1884, 26 D. Reg. 937; Miller v. Peck, 18 W. Va. 75, 100. (9) McIntyre v. Knowlton, 6 Allen, 565, 567; Webster v. Hildreth, 88 Vt. 457, 458; infra n, 19. (10) Lewis v. Johns, 24 Cal. 98, 103.

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