before the note became due T. became sick and mentally and physically incapable of attending to business until his death, and that the plaintiff was ignorant of the outstanding note. (2) That there was a usage, on the part of the insurance company, of giving notice of the day of payment, and the reliance of the assured upon having such notice, and that no notice in this case was given. (3) A parol agreement of defendant made on receiving the promissory note, that the policy should not become void on the non-payment of the note alone at maturity, but was to become void at the instance and election of the defendant, which election had never been made. (4) That it was the usage and custom of the defendant, practiced by them before and after the making of said note, not to demand punctual payment thereof at the day, but to give days of grace, to wit, for thirty days thereafter, and they had repeatedly so done with T. and others, which led T. to rely on such leniency in this case. It did not appear that plaintiff had offered to pay the notes. Held, (1) That sickness or incapacity is no ground for avoiding the forfeiture of a life policy, or for granting relief in equity against forfeiture. Kline v. New York Life Ins. Co., 24 Alb. L. J. 511. The rule may, in many cases, be a hard one; but it strictly follows from the position that the time of payment of premium is material in this contract, as was decided in New York Life Ins. Co. V. Statham, 93 U. S 24. Prompt payment and regular interest constitute the life and soul of the life insurance business; and the sentiment long prevailed that it could not be carried on without the ability to impose stringent conditions for delinquency. More liberal views have obtained on this subject in recent years, and a wiser policy now often provides express modes of avoiding the odious result of forfeiture. The law however, has not been changed, and if a forfeiture is provided for in case of non-payment at the day, the courts cannot grant relief against it. The insurer may waive it, or may by his conduct lose his right to enforce it; but that is all. (2) The usage is no excuse for non-payment. The assured knew, or was bound to know, when his premiums became due. In the case of Insurance Co. v. Eggleston, 96 U. S. 572, the customary notice relied on was a notice designating the agent to whom payment was to be made, without which the assured could not make it, though he had the money ready. As soon as he ascertained the proper agent he tendered payment in due form. It is obvious that the present case is very different from that. The reason why the insurance company gives notice to its members of the time of payment of premiums is to aid their memory and to stimulate them to prompt payment. The company is under no obligation to give such notice and assumes no responsibility by giving it. The duty of the assured to pay at the day is the same, whether notice be given or not. Banks often give notice to their customers of the approaching maturity of their promissory notes or bills of exchange; but they are not obliged to give such notice, and their neglect to do it would furnish no excuse for non-payment at the day. (3) As to the parol agreement, it being in direct contradiction to the express terms of the policy and the note itself, it cannot affect them, but is itself void. It was held in Insurance Co. v. Egglestou, supra, it is true, that any agreement, declaration, or course of action on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon the forfeiture. An insurance company may waive a forfeiture or may agree not to enforce a forfeiture; but a parol agreement, made at the time of issuing a policy, contradicting the terms of the policy itself, like any other parol agreement in

consistent with a written instrument made contemporary therewith, is void, and cannot be set up to contradict the writing. So, in this case, a parol agreement supposed to be made at the time of giving and accepting the premium note, cannot be set up to contradict the express terms of the note itself, and of the policy under which it was taken. (4) As to days of grace it was a mere matter of voluntary indulgence on the part of the company. It cannot be justly construed as a permanent waiver of the clause of forfeiture, or as implying any agreement to waive it, or to continue the same indulgence for the time to come. As long as the assured continued in good health, it is not surprising, and should not be drawn to the company's prejudice, that they were willing to accept the premium after maturity, and waive the forfeiture which they might have insisted upon. This was for the mutual benefit of themselves and the assured, at the time, and in each instance in which it happened it had respect only to that particular instance, without involving any waiver of the terms of the contract in reference to their future conduct. The assured had no right, without some agreement to that effect, to rest on such voluntary indulgence shown on one occasion, or on a number of occasions, as a ground for claiming it on all occasions. But a fatal objection to the entire case set up by the plaintiff is, that payment of the premium note in question has never been made or tendered at any time. The plaintiff has therefore failed to make a case for obviating and superseding the forfeiture of the policy, even if the circumstances relied on had been sufficiently favorable to lay the ground for it. A valid excuse for not paying promptly on the particular day is a different thing from an excuse for not paying at all. Courts do not favor forfeitures, but they cannot avoid enforcing them when the party by whose default they are incurred cannot show some good and stable ground in the conduct of the other party, on which to base a reasonable excuse for the default. Judgment of U. S. Circ. Ct., S. D., Alabama, affirmed. Thompson v. Knickerbocker Life Insurance Co. Opinion by Bradley, J. [Decided Dec. 19, 1881.]

KANSAS SUPREME COURT ABSTRACT.

NOVEMBER, 1881.*

DAMAGES-IN ACTION FOR DEATH FROM NEGLIGENCE.-One Wm. Haas, a yard switchman in the employ of the defendant, was, while attempting to make a coupling of two freight cars, so injured that death ensued. His administrator, charging negligence upon the company, brought suit under the statute to recover damages, for the next of kin. It appeared that the deceased was a single man, leaving neither widow nor child surviving him; that his nearest relative was a mother possessed of some means, and from the history of the young man that his past life had not been, and his future life probably would not have been of any great pecuniary value to his mother. The jury awarded' the full statutory limit, $10,000. The District Court set aside the verdict as excessive. Held, that such ruling must be sustained; that while no arbitrary rule of computing the value of the life of a deceased can be laid down and much must be left to the discretion of the jury, yet it was not the intention of the statute to merely mulct a defendant in damages for negligence, nor to make death a pecuniary speculation to the next of kin, but the intention was to make good to the next of kin the actual loss sustained by such death; and in determining such loss many things should be considered by a jury; among them whether the next of kin was legally or in fact dependent upon deceased

*To appear in 26 Kansas Reports

defendant engaged in the business of selling reaper and mowing machines, alleged as a set-off in his answer, that by the misrepresentations of the Minneapolis Harvester Works Company, as to the character and quality of its machines, which he was then selling, he was damaged in the sum of $1,000. Upon the trial, the jury returned special findings that such defendant did not suffer special damages on account of such misrepresentations, but that the defendant suffered general damages to his business, but were unable to give any items or the elements of such damages. Held, the defendant was pot entitled to recover for that character of damages, because they were so uncertain and remote as to afford no legal basis of recovery. A new trial was granted. Minneapolis Harvester Works v. Cummings. Opinion by Horton, C. J.

ELECTION FORM OF BALLOTS.- Where an election is ordered in a certain school district for the purpose of permitting the electors to vote for or against the issue of certain school district bonds, and in the order it is provided that those electors who desire to vote in favor of the bonds shall have written or printed on their tickets the words "For the bonds," and those who desire to vote against the bonds shall have written or printed on their ballots the words "Against the bonds," and the election is afterward held, and those who in fact vote for the bonds simply have written or printed on their ballots the words "For bonds," omitting the word "the," and those who vote against the bonds, with one or two exceptions, simply have written or printed on their ballots the words, "Against bonds;" held, that the omission of the word "the" does not invalidate the election, and that generally whenever it can be ascertained what the real will and intention of the voters are, the election will be valid. State of Kansas ex rel. Johnson v. Metzger. Opinion by Valentine, J.

MARYLAND COURT OF APPEALS ABSTRACT.*

CONSTITUTIONAL LAW-STATE TAX ON INTEREST OF CITIZEN IN VESSELS IN FOREIGN TRADE.-The interest of a citizen of Maryland and resident of Baltimore as part owner of vessels employed in foreign commerce, registered as vessels of the United States in the office of the collector of customs at Baltimore, the home port of the vessels, and the domicile and usual place of residence of their acting and managing owners, is liable for annual taxes levied on it for municipal purposes by the authorities of that city; and such taxation does not contravene the Constitution of the United States. Howell v. State, 3 Gill, 14; Transportation Co. v. Wheeling, 9 Otto, 275. It does not matter that the vessels are engaged in foreign and not in interState or coasting trade. A ship is as much property in the one case as in the other. The power of State taxation is not limited by the fact that the resident owner may choose to employ his vessel in foreign commerce rather than in the coasting trade, nor can we discover any thing in the constitutional prohibitions that will allow a State to tax it as property in one case and forbid such taxation in the other. An owner living in *To appear in 55 Maryland Reports.

Baltimore may employ his vessel in trading to Liverpool or to New Orleans, but in either case it is his personal property, and like other such property its situs for the purpose of taxation as well as in other respects is the domicile of the owner. Hooper v. Mayor of Baltimore, 12 Md. 464; Hays v. Pacific Mail St. Co., 17 How. 596. Gunther v. Mayor, etc., of Baltimore. Opinion by Miller, J.

CORPORATION-EQUITABLE ACTION. TO ENFORCE

RIGHTS OF SHAREHOLDERS WHAT MUST BE SHOWN PARTIES ULTRA VIRES - PRESUMPTION.- (1) In equitable proceedings by shareholders of a corporation to obtain redress for loss on the value of the stock by reason of willful and fraudulent mismanagement of the affairs of the corporation by some of its directors (against whom and the corporation itself and another corporation, of which they were also directors and in whose interest it was alleged they had so acted, the bill was filed), to accomplish objects and purposes adverse to the interest of the stockholders of the corporation first mentioned, it was held, that to render the directors personally liable for alleged injuries occasioned by conduct willfully fraudulent in intent and purpose amounting to breaches of trust, the proof in support of the allegations must be other than mere constructive fraud or breaches of trust; that there must be affirmative proof of the misconduct charged, going to establish the fraud in fact. Charitable Corporation v. Sutton, 2 Atk. 400; Spering's Appeal, 71 Penn. St. 1; Overend v. Gurney, L. R., 4 Ch. 701; Overend v. Gibb, L. R., 5 H. L. 480; Turquand v. Marshall, L. R., 4 Ch. 376; Hodges v. New Eng. Spring Co., 1 R. I. 312. In equity, directors of a corporation are personally liable for the consequences of frauds or malfeasance they may be guilty of, or for such gross negligence as may amount to a breach of trust, to the damage of the corporation or its stockholders; but they are not liable for the consequences of unwise or indiscreet management, if their conduct is entirely due to mere default or mistakes of judgment. And the onus of proof of fraud, combination or gross negligence, to render directors personally liable, is upon the party making the charges; which must be distinctly made and fully supported by proof. (2) There is no legal presumption of illegality or unfairness in transactions between two corporations, from the mere fact that a portion of the board of directors in the one company constitute a part of the board of directors in the other at the same time, and participated in the dealings between the two corporations. It is only when their dealings are shown to be prejudicial to the one or other of the corporations represented by them, that their conduct will be subject to a strict and severe scrutiny by the courts. (3) The corporation is the proper and primary party to call the directors to an account in a court of equity for fraud or breaches of trust in the management of its affairs. To enable a shareholder, either for himself alone or for himself and others, to maintain a bill against directors for such fraud or breaches of trust, he must allege and show not only the violations of duty or breaches of trust on the part of the directors, but that he as stockholder has been damnified thereby and that the corporation has failed or refused to take the proper legal steps for the redress of the wrong. But if on a bill filed by the stockholders the proof should sustain its allegations that a majority of the shares of the corporation are owned by another alleged rival company, and that a majority of the directors of the alleged fraudulently managed corporation are adverse to the interest of the complainants and are combined against them, and would by means of the control that they exercise, frustrate and defeat any attempt to induce the corporation to take action for the redress of the wrongs alleged; such facts would be a sufficient excuse for not

making or alleging a formal demand upon the corporation to take action, especially where the rival company and the alleged fraudulently managed corporation are both made defendants. Dodge v. Woolsey, 18 How. 331; Memphis v. Dean, 8 Wall. 73; Robinson v. Smith, 3 Paige, 222; Greaves v. Gouge, 69 N. Y. 154; Peabody v. Flint, 6 Allen, 52; Brewer v. Boston Theatre, 104 Mass. 378; Foss v. Harbottle, 2 Hare, 461; Menier v. Hooper Tel. Works, L. R., 9 Ch. 350; Mason v. Harris, 11 Ch. Div. 97; Heath v. Erie R. Co., 8 Blatchf. 347. (4) A corporation may invest in the stock of other corporations as well as in any other funds, provided it be done bona fide and with no sinister or unlawful purpose, and there be nothing in its charter or in the nature of its business that forbids it. Re Barueds Bank, L. R., 3 Ch. 105; Re Asiatic Banking Co., L. R., 4 Ch. 252; Elysville Manuf. Co. v. Okisko Co., 1 Md. Ch. Dec. 392; S. C., 5 Md. 152. Corporations, like individuals, may borrow money for the conduct of their affairs without express authority therefor, whenever the nature of their business may render it proper or expedient. And the power to borrow carries with it very generally, unless expressly restrained, the power to secure the loan by mortgage. If there is no such express power found in the charter of a corporation, but power is conferred on its directors to make all necessary contracts, and to sell or otherwise dispose of any portion of its property whenever in their judgment it should be found to be to the interest of the company, the exercise of the power to borrow and to secure the loan by mortgage from the company would be valid. Susquehanna Bridge Co. v. Ins. Co., 3 Md. 305; Australian Steamship Co. v. Mounsey, 4 K. & J. 733. (5) In equity where it appears that while a transaction was made to assume the form of an absolute bill of sale, it was in substance and according to the understanding and intent of the parties a mere loan of money, and that the instrument taken being an absolute bill of sale was but as security and therefore a mortgage, any evidence whether written or oral tending to show that the transaction was really one of security is admissible, not for the purpose of contradicting the terms of the instrument but of raising an equity paramount to the mere form of the instrument. Thornbrough v. Baker and Howard v. Harris, 3 L. Cas. Eq. (3rd ed.) 625; Russell v. Southard, 12. How. 139; Peugh v. Davis, 6 Otto, 332. Opinion by Alvey, J.

Booth v. Robinson.

MICHIGAN SUPREME COURT ABSTRACT.

OCTOBER 14, 1881.

PRIVILEGED COMMUNICATION

STATE

LIBEL MENTS IN PAPER USED IN SUIT. - In an action to reform a mortgage, the bill stated that a clause in the mortgage, which it asked to have expunged, had been inserted in the mortgage by the fraud of the mortgagee's agent and the inadvertence of the mortgagor in overlooking it. The defendant, the mortgagee, filed an answer upon information and belief, denying the allegations of the bill relied on for relief, and the agent attached to this answer his affidavit, which set forth that the allegations of the mortgagor, in the bill in this particular, “are willfully and maliciously false, without the least shadow of truth whatever." The object of attaching this affidavit to the answer was to oppose an application for a preliminary injunction and was made use of for that purpose. Held, that the statement in the affidavit was privileged, and an action for libel would not lie thereon. Marsh v. Ellsworth, 50 N. Y. 311; Dunham v. Powers, 42 Vt. 1; Hoar v. Wood, 3 Metc. 193. The limit to the privilege is accurately stated in the case last cited, that what is said must have relation to the cause or subject-matter of the inquiry." If it does, the publication is absolutely

privileged, even though the defendant may have indulged in improper motives. Lea v. White, 4 Sneed, 111, 114. For a clear statement of the general rule see McLaughlin v. Cowley, 127 Mass. 316. Hart v. Baxter. Opinion by Cooley, J.

WASTE-EXECUTION DEBTOR USING LANDS IN USUAL MANNER AFTER SALE. A debtor in execution using lands after the sale in like manner and for like purposes in and for which they were used and applied prior to the sale, doing no permanent injury to the freehold, does not presumptively commit waste. So held where such debtor continued to mine and remove ore from mines on the land. A dowress might do this. Stoughton v. Lee, 1 Taunt. 402; Coates v. Cheever, 1 Cow. 460; Crouch v. Puryeln, 1 Rand. 258; or any other tenant for life; Neel v. Neel, 19 Penn. St. 323; Irwin v. Corode, 24 id. 162; or even a tenant for years; Clegg v. Rowland, L. R., 2 Eq. Cas. 160. And the debtor's rights are certainly not less than those of a tenant for years in any particular. He may not open new mines, but the old mines he may continue to work in the customary and reasonable way. Had the mining of the ore been a wrongful act, the plaintiff might perhaps have followed it and maintained trover against the party purchasing it. Betts v. Lee, 5 Johns. 348; Heath v. Ross, 12 id. 140; Moers v. Wait, 3 Wend. 104; Final v. Backus, 18 Mich. 218; Winchester v. Craig, 33 id. 44. It certainly might be done if the defendant were a mere trespasser (Marquette, etc., R. Co. v. Atkinson, 44 Mich. 99), but here the defendant stands in the shoes of the judgment debtor, and what justifies the one in mining justifies the other also in purchasing. There is not in the declaration any ground of action that would not exist had a ripened crop of grain been removed instead of the ore. Ward v. Carp River Iron Co. Opinion by Cooley, J.

CHATTEL MORTGAGE ON GOODS TO BE SOLD IN COURSE OF TRADE.-A chattel mortgage is not per se void because it contains a power to the mortgagor to sell the goods in the regular course of trade. Such a power is at most only evidence of a fraudulent purpose, to be submitted to the jury. Briggs v. Parkman, 2 Metc. 258; Barnard v. Eaton, 2 Cush. 294; Codman v. Freeman, 3 id. 306. Fletcher v. Powers. Opinion by Morton, J.

EQUITABLE ACTION-IN FAVOR OF GENERAL CREDITOR TO REACH PATENT NOT MAINTAINABLE.- Plaintiff pleaded his bill in equity, setting forth that defendant owed him $232.40 for use and occupation of premises, that defendant has a patent of great value, that he has no visible property to be applied to pay the debt, and refuses to apply the patent for that purpose, and asking that the defendant be ordered to apply the patent for such purpose, for an injunction, and for general relief. Held, the bill was not sustainable. The incorporeal and intangible right of an inventor or an author in a patent or a copyright cannot be taken on execution at law; and a general assignment of his property under a bankrupt or insolvent act will, either by its own force pass this right to the assignee in bankruptcy or insolvency, or will at least entitle the latter by proper proceedings to compel the debtor to convey it to him for the benefit of creditors. Stephens v. Cady, 14 How. 528; Stevens v. Gladding, 17 id. 447; Hesse v. Stevenson, 3 B. & P. 565; Lyman v. Tripp, 2 N. R. 67; Mawman v. Teff, 2 Russ. 384; Ashcroft v. Walworth, 1 Holmes C. C. 152. But assuming all this, the bill now before us does not set forth a case which entitles the plaintiff to relief. The nature of the debt

alleged to be due to him from the defendant does not justify the interposition of a court of equity, because it is a purely legal debt, upon which the plaintiff may sue at law. Carver v. Peck. Opinion by Gray, C. J.

WORDS USED IN BUSI

INSURANCE -FIRE POLICY NESS, NOT POPULAR MEANING. - In an action on an insurance policy upon electrotype, stereotype and steel plates and cuts," belonging to plaintiffs, who were a firm of book publishers, there were certain brass plates which, it was claimed by plaintiffs, were included in the policy under the name "cuts," because they were embraced in the natural and ordinary meaning of that word, as defined in the dictionaries, and used in the common speech of people. The defendant contended that the word "cuts was understood

among book publishers, engravers and all other persons who used dies and cuts, to include only wood-cuts and steel-engravings and plates, and did not include the articles in question; and gave evidence to that effect. The defendant at the trial asked for this instruction, that if the jury should find that the word "cuts" had among book publishers a technical meaning universally so understood among book publishers and the makers and users of cuts and dies, they might presume that the word was used in that sense in the policy. The court refused to give this instruction, but instructed thus: "Words are to be understood in their plain, ordinary and popular sense, unless they have, in respect to the subject matter, as by the known usage of trade or the like, acquired a particular sense, distinct from the popular sense of the same words. Where a word has both a popular and a technical sense, or where it has several different meanings, it is a question of fact for the jury to determine, from the subject matter, the contract, the character of the contracting parties, or the nature of the contract and all the surrounding circumstances, in which sense the word was used by the contracting parties." Held, that the defendant was entitled to the instruction asked. The rule of law in relation to the construction of contracts is correctly stated in Daniels v. Hudson River Iron Co., 12 Cush. 430. See also Whitmarsh v. Conway Ins. Co., 16 Gray, 359. Upon this subject, the decisions of courts in various jurisdictions seem to be uniform, and to result in this. That the jury should be instructed that when words have acquired an exact and technical meaning in any trade or business, and are used in a contract relating to such trade or business, prima facie they are to be construed in the meaning or sense which they have acquired in that business. Houghton v. Watertown Fire Insurance Co. Opinion by Lord, J.

NEGLIGENCE-INJURY BY FALLING ON ICE-CONTRIBUTORY NEGLIGENCE-KNOWLEDGE OF PLAINTIFF OF CONDITION OF WALK. - In an action for injury from falling on ice on a sidewalk in front of defendants premises, it appeared that on a winter evening, the plaintiff attended an entertainment, for which he paid an entrance fee, held in the defendant's hall in Malden. The hall was let by the defendant to the persons who gave the entertainment, for the evening. Plaintiff, as he was stepping from the entry of the building where the hall was, on to the sidewalk, which afforded the usual and regular means of access to and exit from the defendant's building, slipped, by reason of a defect in the sidewalk, on that part thereof which belonged to the defendant, the defect being caused by an accumulation of ice and snow, and received the injures complained of. The plaintiff testified, that as he went into the building he noticed that there was ice and snow on the sidewalk, but he did not slip going in; that he noticed that the sidewalk in front of the door, where he fell, was in the same condition when he came out as when he went in. Plaintiff asked the judge to rule that

even if the plaintiff knew of the ice and snow, yet if in leaving the hall he used due care under the circumstances in passing out, it would not be contributory negligence. This was refused, the judge instructing the jury among other things, that if the plaintiff knew of the unsafe and dangerous condition of the ice and snow upon the plank sidewalk at the entrance of the building, and took the risk of entering upon it and going into the building, knowing that he must pass over the dangerous place in coming out, and was injured in coming out, the plaintiff could not recover; but if the plaintiff was not aware of the unsafe and dangerous condition at the time he entered upon it, he might recover, if in the exercise of due care. Held, error. The instructions rest upon the proposition that knowledge on the part of the plaintiff, at the time he entered upon the sidewalk, of the accumulation of snow and ice and of the unsafe condition of the sidewalk resulting therefrom, is in law conclusive evidence that he was not in the exercise of due care in attempting to pass over the sidewalk. See Looney v. HcLean, 129 Mass. 33, in which are cited Whittaker v. West

Boylston, 97 Mass. 273, and Reed v. Northfield, 13

Pick. 94. Other recent cases to the same effect are George v. Haverhill, 110 Mass. 507; Whitford v. Southbridge, 119 id. 564; Lyman v. Amherst, 107 id. 339; Mahony v. Metropolitan Railroad, 104 id. 73; Thomas v. Western Union Telegraph Co., 100 id. 156. It is evident that an obstruction may be of such a character that a court can say, as a matter of law, that no person in the exercise of reasonable prudence would attempt to pass over it, but the accumulation of snow and ice, such as is described in this case, does not constitute such an obstruction. The law in a case of this kind is that only when the nature of the obstruction is such that the court can say that it is not consistent with reasonable prudence and care that any person having knowledge of the obstruction should proceed to pass over it in the manner attempted, can the court rule that such knowledge prevents the plaintiff from maintaining his action; and that the nature of the obstruction in this case was such that it ought to have been submitted to the jury to determine whether the plaintiff, even if he knew the condition of the sidewalk at the time he attempted to pass over it, was under the circumstances in the exercise of reasonable prudence and due care in attempting to pass over it in the manner he did. Dewire v. Bailey. Opinion by Field, J.

O'GORMAN v. ARNOUX.

THE question of fact in the O'Gorman-Arnoux con

test for the New York city Superior Court judgeship, namely, whether Judge Spier, the late incumbent, was born in 1810 or in 1812, was opened by the examination, de bene esse, at Ballston and Saratoga, during three days last week, of Mr. William Wilson, of Saratoga, on behalf of the plaintiff. Mr. Wilson is a very aged gentleman, a cousin of Judge Spier. The family had two brothers-James, and Archibald - the Judge's father and a sister Mrs. Wilson, the witness' mother. There were about a round dozen of children in each family. Mr. Wilson testifies, on the direct, that he remembers that his cousin, the Judge, was born in 1810, and is eight years younger than himself; that he and the Judge attended the same school for years, and the ages of his cousins and his own age were the subject of conversation between them in the family; and that he had heard his own mother speak of the ages of the Judge and his brothers and sisters "hundreds of times, giving years, months, days and dates of birth." He also stated the births of the Judge's brothers and sisters, commencing with the year of his own birth, as follows: Archibald, 1802; Jane, 1804; John, 1806; Moses, 1808; Bradford, 1812; Mary, two or

And

three years afterward. Now this was a quite plausible start, a little embarrassed, to be sure, by his summing up the time of his own residence in different places once at eighty-five years, and once at one hundred, and by his twice over putting the Judge in college in 1820, at the precocious age of ten; all on the direct examination. Before his counsel got through with him, however, he recognized the impropriety of sending the Judge to college at so tender an age and so illy prepared, and withdrew him, but he did not put him in again. Now on the cross-examination it was developed that the date of the Judge's birth is about the only thing he can remember with readiness or certainty, and that he is shaky about dates in his own life and family. For example: he could not remember the year of his first marriage, nor "without figuring," how old he was when married the second time; nor how long he lived with number two; and "figuring" only made things worse, for "figuring" developed that he was married the first time at twenty-four, lived with number one thirty-four years, with number two fifteen or sixteen years, and with number three since 1870; which would make the witness eighty-five or eighty-six years old now. In another connection he marries himself the first time at twenty-six, and lives with number one thirty-four years, "till fifty-four." Accounting for his life on a business instead of a matrimonial basis, he makes himself eighty-four or eighty-five. again he says, his sister Mary was about three years younger than his sister Margaret, and that he was about two years younger than Margaret; and that Mary was born in 1805; which would make the witness eighty-two now. So, although he could give the names of his uncle James' children, in the order of birth, he could not tell in what year any of them were born, nor how old he was when any of them were born, although he passed his uncle James' house every day on his way to school, and did not pass his uncle Archibald's house; nor could he tell what year his mother gave for the birth of any of his uncle James' children, nor whether she ever stated the age of any of them. So it took him two hours to calculate that he was about thirteen when his cousin Mary was born. He could not tell which of his uncle James' children he was most intimate with as a child. The sad facts of mortality produced little impression on his mind; he could not recall the first dead person he ever saw, nor the first funeral he ever attended; but he recollected that his sister Nancy's wedding was the first he ever attended, and that was when he was very young. (Nancy must have, been married about as young as Judge Spier went to college, for he makes her only eight years older than himself.) Although he could recollect the Judge's birth from the fact that he was one of twins, yet he could not tell when his uncle James' deaf and dumb child, Stewart, was born. His religious experience does not seem to have sunk in very deep-he thought he was about nineteen when first elected trustee of the Presbyterian church, but could not tell how old he was when he joined the church, nor when he was first elected elder. He seems to have taken very little interest in politics-cannot tell who was the first president he voted for, nor whether he voted for "Old Hickory," but remembered he voted for Clay, but cannot tell when.

He testifies that none of the dates of the family births were ever disputed in the family, to his knowledge. "from childhood up to within two or three years." In another connection he testifies he never heard the Judge's age discussed or disputed till 1881. In another connection he testifies that two years ago it had not occurred to him that the Judge was over seventy. And in still another connection he testifies that the first he heard of this discussion was from Counsellor Dake, "three or four weeks ago," or as it put it afterward, on the 17th of November. But in

another place he testifies that he was in Judge Scott's office three or four years ago, and then remarked, "how will they know when the Judge is seventy? and he laughingly said, 'oh, he can cheat them out of a year or two.' That is all that was said."

On the subject of records he swears: that the only list of births he ever saw was in the Herald; that he never saw a record in Mrs. Bradford Spier's Bible, adding, "I never knew there was any record in the Bible;" that the Judge's father had no family Bible with record of births; that his own father had one containing a record down to but not including him; that he did not know whether his uncle James had any family bible record. But he swears that in June or July, 1880, he visited Mrs. Bradford Spier, and she produced her Bible to determine the time of birth of one of his uncle Archibald's children- he cannot tell which, nor why and that then he suggested to her to look and see when the Judge was born, whereupon she shut the book up and carried it out of the room, and did not accede nor say any thing to his suggestion. In another place he swears there was no allusion to Judge Spier at this time. And on re-direct he swears that the conversation with Judge Scott occurred to him at this time!

Mr. Wilson explicitly admits that neither Judge Spier nor his mother was ever present at any time when the witness' mother spoke of the year of the Judge's birth.

Mr. Wilson does not seem to have been very intimate with the Judge of late. He last visited him about forty years ago. They never corresponded. He never heard of the Judge's living out west-which, by the bye, was just "about forty years ago.'

Mr. Wilson's idea of the best evidence on such points is novel, to say the least. When asked how he knew his own ago, he says he got it from his mother, but when asked if he did not regard her as the best authority on this circumstance, he replied that "he regarded common say as just as correct!"

Equally peculiar is Mr. Wilson's way of getting at the date in question. He testifies: "I swear that I recollect distinctly the date of his birth. I fix the date of the year by my rule of counting the ages from Archibald Spier" (his cousin born in 1802)-"which I said at first, arriving at the date of his birth." In another connection he says, "according to my calculation, my way of counting." When asked if this presumed interval of two years between births was perfectly regular, and if the interval was not sometimes as long as thirty months, he admitted that there was a "good deal of variation." It seems that his ability to tell any ages in the Judge's family depends on his getting his "starting-point." Thus when asked when John, the second elder brother to the Judge, was born, he said at first, in 1808, and then counting on his fingers, said, in 1806. So when asked when his mother said John was born, he said at first, in 1808, and then counting on his fingers, said, in 1806. In like manner, he said he only remembered the year in which Bradford, the Judge's younger brother, was born, "by my way of counting, about two years after, in 1812." And so, when asked whether the deaf and dumb cousin, Stewart, was older or younger than the Judge, he could not tell, "unless I can get a-remember a starting-point in that family."

The foregoing is a fair summary of Mr. Wilson's deposition. The examination was conducted with marked ability by Mr. Lamoreux for Mr. O'Gorman, and the Hon. Stewart L. Woodford, for Judge Arnoux.

CORRESPONDENCE.

UNIFORM DIGESTING AND INDEXING.

Editor of the Albany Law Journal:

Three years ago the attention of the bar was called