quences, notwithstanding their stipulation to the contrary. The right to make rules and regulations to govern the management of their business is expressly conferred by statute. But such rules must be reasonable, and if they fail to accord with the demands of a sound public policy they are void. Railroad Co. v. Lockwood, 17 Wall. 357; 21 id. 267.

We are also of the opinion that the failure to transmit and deliver the message in the form or language in which it was received, is prima facie negligence, for which the company is liable; and that to exonerate itself from the liability thus presumptively arising, it must show that the mistake was not attributable to its fault or negligence. This rule not only rests upon sound reason, but is well sustained by well-considered cases. Bartlett v. Western Union Tel. Co., 62 Me. 209; Rittenhouse v. Independent Line of Tel., 44 N. Y. 263; Tyler, etc., v. Western Union Tel. Co., 60 Ill. 421; Baldwin v. United States Tel. Co., 45 N. Y. 744; Western Union Tel. Co. v. Carew, 15 Mich. 525; De La Grange v. South-Western Tel. Co., 25 La. Ann. 383; Western Union Tel. Co. v. Meek, 49 Ind. 53; Turner v. Hawkeye Tel. Co., 41 Iowa, 458.

If the error or mistake is attributable to atmospheric causes or disturbances, or to any cause for which the company is not at fault, it is entirely within its power to show it. To require the sender of the message to establish the particular act of negligence, or ferret out the particular locality where the negligent act occurred, after showing the mistake itself, would be to require in many cases an impossibility, not infrequently resulting in enabling the company to evade a just liability. We are further of the opinion that the court did not err in holding, and so instructing the jury, that the message received by the company for transmission was not obscure within the meaning of the stipulation in the agreement under which the message was sent. It appeared upon its face that it related to a business transaction, a transaction involving the purchase and sale of property. The company was therefore apprised of the fact that a pecuniary loss might result from an incorrect transmission of the message. Where this appears, there is no such obscurity as relieves the company from liability for negligently failing to transmit and deliver the message in the language in which it was received. Western Union Tel. Co. v. Wenger, 55 Penn. St. 262; Rittenhouse v. Independent Line of Tel., 44 N. Y. 265; Manville v. Western Union Tel. Co., 37 Iowa, 220.

BOUNDARY -OF LAND ALONG HIGHWAY — WHEN HIGHWAY EXCLUDED. A deed of land contained this description: "Beginning at a point on the southerly side of the Wallabout Bridge road and adjoining the land now or lately belonging to John Skillman," and after running certain courses, the line ran along the land of Jacobus Lott, "north forty-eight degrees and nine minutes west 594 feet to the Wallabout Bridge road," and thence along said road 1,225 feet to the place of beginning. Held, that the road-bed was excluded by the terms of the description, within the cases, Jackson v. Hathaway, 15 Johns. 447; English v. Brennan, 60 N. Y. 609; White's Bank of Buffalo v. Nichols, 64 id. 65. The cases of Sibley v. Holden, 10 Pick. 249; Smith v. Slocomb, 9 Gray, 36, and Cottle v. Young, 59 Me. 105, confirm the conclusion reached in this case. The words "to" and "along" the road, in the description in question, if not controlled by the starting point, would by well-settled construction carry the boundary line to the center, but it is to be

observed that these words are not inconsistent with confining the boundary with the side of the road. It was held in Dunham v. Williams, 37 N. Y. 251, that a deed bounded on a highway is satisfied by title extending to the side of the rood, when the title to the roadbed was not in the grantor but in third persons, and according to the principle of that case the absence of such title, where the description runs to and along a highway, would not constitute a breach of the covenant of seizin. It is generally if not uniformly conceded that a grantor of land abutting on a highway may reserve the highway from his grant. But the presumption in every case is that the grantor did not intend to retain the fee of the soil, and such reservation will not be adjudged, except when it clearly appears from the language of the conveyance that such reservation was intended. See also, Child v. Starr, 4 Hill, 369; Halsey v. McCormick, 13 N. Y. 296; Seneca Nation v. Knight, 23 id. 498. Judgment affirmed. Kings County Fire Insurance Co. v. Stevens. Opinion by Andrews, C. J.

[Decided Jan. 17, 1882.]

COVENANT-OF WARRANTY UPON SALE OF MILL SITE AND DAM EMBRACES RIGHT OF FLOWAGE RIGHT OF ACTION. — (1) A deed with covenant of warranty transferred within its metes and bounds a dam and water power essential to the full enjoyment and operation of a plaster-mill. It conveyed the dam as it then stood at its existing and apparent height, representing sufficient head and adequate power to drive the mill successfully and properly. The power thus created and stored was the essential and material element of value in the mill property, which was the subject of the conveyance. The dam stood with its flash-boards in plain sight of the purchaser, and formed largely the ground and reason of his purchase. The dam at its then height caused the overflow of the land of F., as to which there was no right to overflow. For this overflow F. brought action against the purchaser, and recovered. Held, that there was a breach of the covenant of warranty. The grantee was evicted by a paramount title. As to F., the overflow became a nuisance which he might lawfully abate (Brown v. Bowen, 30 N. Y. 519; Thompson v. Allen, 7 Lans. 459), but could assert his right as effectually by action. The grantee was not merely deprived of an easement in another's land, which was not conveyed, but he lost by force of the paramount title a thing actually conveyed, included within the metes and bounds of his deed, and just as much property granted by that conveyance as if it had been a particular acre of the land. The deed conveyed the dam at its existing height, and the covenant of warranty was broken when the grantee was compelled wholly or in part to take it down. Green v. Collins, not reported, and Burke v. Nichols, 2 Keyes, 670, distinguished. The rule of this decision rests upon the general principle that the covenants in a deed are designed to protect the grantee in the enjoy ment of his property in the manner and for the particular purpose intended by the parties at the time of executing the deed. Comstock v. Johnson, 46 N. Y. 615; Voorhees v. Burchard, 55 id. 102. In Green v. Collins, referred to above (decided Oct. 4, 1881), this court held that a conveyance of land, though transferring whatever is properly and lawfully appurtenant to the subject of the grant, does not convey an easement which has no lawful or valid existence as such, although it may seem or appear as matter of fact to be attached to the land. And this upon the obvious ground that mere general words or presumptions arising from the character and uses of the property conveyed cannot be justly construed to pass a right or easement in another's land, which the grantor cannot effectually grant and which his deed on its face does not necessarily purport an intention to convey. It was also

held that the ordinary covenant of warranty is coextensive only with the grant and does not reach or operate on any thing beyond it, and what the deed does not purport to convey the covenant cannot be said to warrant. (2) An objection that the covenant ran with the land and that the grantee would lose his right of action thereon if he parted with his title, held, not tenable if the damages suffered all occurred before the title was parted with. Hamilton v. Wilson, Johns. 72; Beddoe's Ex'r. v. Wadsworth, 21 Wend. 120. Judgment affirmed. Adams v. Conover. Opinion by Finch, J.

[Decided Jan. 17, 1882.]

RECORDING ACT SATISFACTION BY MORTGAGEE AFTER ASSIGNMENT OF MORTGAGE TO ANOTHERPRIORITY OF LIEN — UNRECORDED ASSIGNMENT.-S., the owner of premises mortgaged the same to defendant to secure a loan of $3,800. Before consummating the loan, defendant examined the title and found on record a mortgage on the premises executed to O. He required a satisfaction of that mortgage before completing the loan. No assignment of that mortgage appeared on the record, and defendant had no notice or knowledge of any assignment thereof, or that any person other than O. had any interest therein. Shortly afterward S. delivered to defendant his mortgage for $3,800, and at the same time produced and delivered to him a satisfaction piece of the mortgage to O., executed by said O., and acknowledged so as to entitle it to be recorded, and defendant thereupon advanced the $3,800. Before any assignment of the O. mortgage had been put on record, defendant caused his own mortgage and said satisfaction piece to be recorded. Previous to the execution of the mortgage to defendant, O. had assigned the mortgage, and the same was at the time the satisfaction piece was made owned by plaintiff, but the assignment to her was not put on record until after defendant's mortgage and the satisfaction piece were recorded. S. procured the satisfaction from O. by the false representation that the mortgage given to D. had been paid. Held, that the mortgage to defendant was entitled to priority over that given to O. Defendant advanced his money upon the faith of the satisfaction piece and of his mortgage, and he stood in the position of a bona fide purchaser of the mortgaged premises, within the provisions of the recording act (1 R. S. 756, §§ 1, 37, 38). The satisfaction piece and mortgage to defendant, created a lien on the land in his favor free from the mortgage to O. Defendant's mortgage is a conveyance within the express term of the act, and the satisfaction piece also comes within the statutory definition. It is an instrument by which the title to the land may be affected in law or equity. Assignments of mortgages are conveyances within the act, and if not recorded are void not merely as against subsequent purchasers of the same mortgage, but as against subsequent purchasers of the mortgaged premises, whose interests may be affected by such assignments and whose conveyances are first recorded. Dicker v. Boice, 83 N. Y. 215; Westbrook v. Gleason, 79 id. 23. See also, Viele v. Judson, 82 N. Y. 32. Under Ely v. Schofield, 35 Barb. 330, and Van Keuren v. Corkins, 66 N. Y. 77, plaintiff's mortgage would have been deemed discharged as to defendant, if the satisfaction piece had been recorded before he advanced his money and took his mortgage, and there is no substantial distinction resting on this circumstance. The fact that the bond and mortgage to O. were not produced by S. when he delivered the satisfation piece to defendant, does not affect the matter. The cases Brown v. Blydenburgh, 7 N. Y. 141; Kellogg v. Smith, 26 id. 20, distinguished. Order affirmed. Bacon v. Van Schoonhoven. Opinion by Rapallo, J. [Decided Jan. 17, 1882.]

MICHIGAN SUPREME COURT ABSTRACT. JANUARY, 1882.

CARRIER -RIGHTS OF RAILWAY PASSENGER-TRAIN NOT STOPPING AT STATION TO WHICH TICKET BOUGHTREPRESENTATIONS OF TICKET SELLER. — Pierce bought a railway ticket between certain points, and relying on the representations of the ticket agent, took a particular train to reach his destination. The conductor, on taking up his ticket, told him that the train did not stop at the station he wished to reach, and that he must leave the train at the last station at which it would stop before reaching it, or pay additional fare and go on to the next station beyond it. Pierce did neither, was put off the train before arriving at the point for which his ticket was bought, and sued the company for damages. Held, that he was not entitled to recover. Railway passengers have a right to rely, until differently informed, on the information received by them from ticket agents in answer to their inquiries as to the stoppages of trains, but they must not disregard reasonable means of information. Where a railway passenger is not in fault in starting on a particular train, he has a right of action against the company for damages arising from its refusal or failure to take him to his destination as agreed through its ticket agent. But whatever his remedy, he has no right, without paying additional fare, to stay on the train after he is notified by the conductor that it will not stop there, and the additional exaction will be an element of the damages to which he may be entitled. A railway conductor cannot be required by a passenger to deviate from his train orders on the latter's statement of an alleged agreement with the company conflicting therewith. Every one is bound to know that a railway conductor has no general power to run his train except in conformity to the schedule. A passenger wrongfully on a railway train can recover no damages for his removal and exclusion therefrom except for needless violence. He cannot complain of an indignity which it was his duty to avoid and which he was bound to expect. A railway company has power, subject to liability for damages for any breach of contract involved, to determine for itself what trains shall stop at particular places. Lake Shore & Michigan Southern Railway Co. v. Pierce. Opinion by Campbell, J.

DIVORCE-CRUELTY TO WIFE - EVIDENCE.-The communication of a venereal disease by a husband to his wife may be such extreme cruelty as to justify a divorce on her application. The fact that a wife whose chastity is unsuspected is found to have venereal disease is not sufficient evidence that the disease was communicated to her by her husband. Holthoefer v. Holthoefer. Opinion by Cooley, J.

RAILROAD- -DUTY TO FENCE NOT APPLICABLE TO STATION GROUNDS. - The statute which requires railroad companies to fence their tracks has no application to station grounds and their approaches. Flint & Pere Marquette Railway Co. v. Lull, 38 Mich. 515. Therefore a railroad company is not liable for the value of a cow killed on one of the approaches to a station, by an engine run without negligence. Chicago & Grand Trunk Railway Co. v. Campbell. Opinion by Cooley, J.

TRUST GIFT BY BENEFICIARY-WHEN TRUSTEE MAY NOT ABANDON.—(1) A beneficiary under a deed of trust can pass his interest by gift if he desires. (2) The trustee in a deed of trust cannot divest himself of the trust by simply withdrawing from it with the assent of the grantor, even though the latter is a beneficiary, if there are other beneficiaries who do not consent, or, being infants, cannot. Matter of Jones, 4 Sandf. Ch. 615; Cruger v. Halliday, 11 Paige, 314; Gilchrist v.

Stevenson, 9 Barb. 9; Brennan v. Willson, 71 N. Y. 502. (3) An abandonment of a trust by the trustee and a surrender of the fund to the grantor constitute a breach of the trust and involve both in liability. Henderson v. Sherman. Opinion by Graves, J.

MISSOURI SUPREME COURT ABSTRACT.*

PARTNERSHIP - - PARTNER'S LIABILITY FOR TORTS OF CO-PARTNER IN THE BUSINESS. A partner has authority by reason of the partnership relation, and without the express assent of his co-partners, to sue in the name of all the co-partners for the recovery of a partnership debt; and if the suit be by attachment, and goods of a stranger are wrongfully seized by order of one, all the co-partners will be liable. Story on Partnership, §§ 101, 166. Kuhn v. Weil. Opinion by Henry, J.

LEASE

- WITH PRIVILEGE OF REMOVING BUILDING EXTENSION OF TERM RY PAROL REFUSAL TO PERMIT REMOVAL MEASURE OF DAMAGES. — (I) A tenant entitled by the covenants of his lease to remove a building on the demised premises at the expiration of his term, under a verbal agreement with his landlord held over for a further term, and then surrendered the premises including the building, to the landlord, with a verbal agreement that the landlord should insure the building and keep it in repair, and might let it and receive the rents until the tenant should wish to remove it. Held, that he had not forfeited or abandoned his right to remove. (2) The measure of damages for breach by a landlord of a covenant to permit his tenant to remove a building from the demised premises, is the value of the building on the premises on the day when the breach occurred, with interest. See Seibel v. Siemon, 72 Mo. 526; Spencer v. Vance, 57 Mo. 427; Chicago, &c., Co. v. Dunlap, 32 111. 207. Neiswanger v. Squier. Opinion by Sherwood, C. J.

MUNICIPAL CORPORATION ORDINANCES OF, MUST

BE REASONABLE

PENALTY FOR DELINQUENT TAXES. (1) The charter of the city of Cape Girardeau authorized the city to levy taxes for railroad purposes upon "all property in the city made taxable by the general law of the State for State purposes." The 3rd section of the general statute in relation to merchants' licenses (Wag. Stat. p. 938), required that all merchants should pay an ad valorem tax,equal to that levied upon real estate, on the highest amount of goods in their possession, whether owned by them or consigned to them for sale, at any time during a certain named period of the year. Held, that this statute imposed an indirect tax on property, and not a mere arbitrary charge for the exercise of a privilege; and that the foregoing provision of the charter authorized the city to impose a similar tax, the amount of which should be ascertained in the same way. (2) The ordinances of municipal corporations are subject to revision by the courts, and though large discretion is allowed, yet when an ordinance is found not to be in conformity to charter, or not reasonably incident to powers conceded in the charter, it will be held void. (3) A city ordinance provided that delinquent city taxes should bear interest at the rate of two per cent. per month until paid, and if not paid by a day named, that fifty per cent should be added as a penalty, and if suit should be brought and judgment should be recovered by the city, that there should be taxed as costs against the defendant a fee of $25 for the city's attorney, and in case of appeal to the Supreme Court,a further fee of $50; and these fees were to be so taxed whether the defendant's defense was bona fide or frivolous. It appearing in the present case that the defense was bona fide, held, that the provision of * Appearing in 72 Missouri Reports.

the ordinance in relation to attorney's fees was unreasonable and unnecessary to carrying out the charter, and the fees should not be allowed. Citing Corrigan v. Gage, 68 Mo. 541. City of Cape Girardeau v. Riley. Opinion by Napton, J.

NORTH CAROLINA SUPREME COURT AB

STRACT.*

CONTRACT-PERFORMANCE OF SERVICE UPON AGREEMENT TO COMPENSATE IN WILL-IMPLIED CONTRACT—

LIABILITY OF ESTATE. - Where services are performed by one person for another under an express or implied contract that the party receiving the service will provide compensation in his last will, and the latter dies without making such provision, an action will lie on a quantum meruit, for the reasonable value of such services, freed from the operation of the statute of limitations, such action not being maintainable until after the death of the party liable. Where services are given in the mere expectation of a legacy, not founded on contract, no action can be sustained for their value when such expectations are disappointed Where services are rendered for a series of years under no definite contract as to duration, rate or mode of compensation, other than that implied by law, the promise which the law implies is to pay for such services as they are rendered, and the statute of limitations begins to run then, or at least from the end of the year in which they were performed. In an action against an administrator for personal services rendered his intestate by the plaintiff, it appeared in evidence that the services were of considerable value and highly estimated by the intestate, who declared his intention of compensating plaintiff in his will; and further, that plaintiff had frequently declared that she was not working as a hireling. Held, that the evidence authorized an inference involved in the verdict of the jury, that the services were not gratuitous, but did not justify the finding, in effect, of a mutual understanding as to the terms and conditions of plaintiff's service, so as to remove the bar of the statute of limitations. Authorities referred to, Little v. Dawson, 4 Dall. 111; Sevires v. Parsons, 5 W. & S. 357; Nimmo v. Walker, 10 La. Ann. 531; Riddle v. Backus, 38 Iowa, 81; Osborne v. Governors Guy's Hospital, 2 Str. 728; Patterson v. Patterson, 13 Johns. 379; Hauser v. Sain, 74 N. C. 552; Baxter v. Nurse, 3 Term R. 10; Lettler v. Smiley, 9 Ind. 116; Davis v. Gorton, 16 N. Y. 255. Miller v. Lash. Opinion by Smith, C. J.

LEASE -NOTICE TO TENANT FROM YEAR TO YEAR.A tenant from year to year is entitled to a written or verbal notice to quit, to be given three months before the expiration of the current year; a mere demand for possession is insufficient. But where the tenant disclaims to hold as such, a notice to quit is not necessary and need not be proved in a summary proceeding in ejectment. Jackson v. Wheeler, 6 Johns. 272; Jackson v. Deyo, 3 id. 422. Vincent v. Corbin. Opinion by Ashe, J.

PLEADING-DEFENSE OF PAYMENT UNDER CODE. The defense of payment being one which confesses the cause of action and seeks to avoid it by new matter, the party setting it up must plead and prove it. Upon this question as to practice under a Code, there is a conflict. In California it has been held that it may be given in evidence under a general denial, and that the plea of payment was but a traverse of the plaintiff's allegation of non-payment. In Indiana the plea of payment is held to be a statement of new matter, to be met by a reply like other new matter, and that the facts put in issue by a denial are only those which it is incumbent on the plaintiff to prove as a part of his * Appearing in 85 North Carolina Reports.

case.

In Kansas it is held that proof of payment is new matter and cannot be given in evidence under a general denial. In New York the current of authorities is that evidence of payment could not be given without an averment in the answer. McKyring v. Bull, 16 N. Y. 297; Texier v. Gouin, 5 Duer, 389; Edson v. Dilange, 8 How. Pr. 273. In Van Giesen v. Van Giesen, 12 Barb. 520, the court held that neither payment nor any other defense which confesses and avoids the cause of action can in any case be given in evidence as a defense, in an answer containing simply a general denial of the allegations of the complaint; and it has been there held that the defendant may give as evidence under the general denial whatever controverts the allegations of the complaint, which the plaintiff is bound to prove in order to make out his case. Andrews v. Bond, 16 Barb. 633. And again it has been held in that State when new matter is relied upon in defense, it must be set out in the answer. Weaver v. Barden, 49 N. Y. 286; Evans v. Williams, 6 Barb. 34. From which authorities it may be gathered that under a general denial any evidence that tends to controvert the allegations of the complaint, which the plaintiff must prove to sustain his action, may be given to the jury. But where the defense relied upon is new matter, or is in confession and avoidance of the plaintiff's cause of action, it cannot be given in evidence in a denial of the allegations of the complaint, but must be set out in the answer. Ellison v. Rix. Opinion by Ashe, J.

- The statute of limipleaded in the Green v. RailOpinion by

tations, relied on as a defense, must be answer, and not set up in demurrer. road Co., 73 N. C. 524. Bacon v. Berry. Ashe, J.

WILL66 -CONSTRUCTION OF WORD HEIRS" ONE OF LIMITATION. - -A testator, dying in 1837, devised as follows: "I leave to my daughter C., the tract of land that I bought of II., to her natural life, and after her death, I give the same to her heirs forever." In another clause of the will there was a similar bequest of personal property. Held, that the word "heirs" was one of limitation, and not of purchase, and the daughter took an estate in fee. Folk v. Whitley, 8 Ired. 133; Sanderlin v. Deford, 2 Jones, 74; Coon v. Rice, 7 Ired. 217; McBee, ex parte, 63 N. C. 332; Warrell v. Vinson, 5 Jones, 91; Zollicoffer v. Zollicoffer, 4 Dev. & Bat. 438; Floyd v. Thompson, id. 478, cited and approved. King v. Utley. Opinion by Smith, C. J.

NEW HAMPSHIRE SUPREME COURT AB

STRACT.*

INFANT EMANCIPATION OF.-The relinquishment by a parent of a minor child's earnings, under the missapprehension that the law emancipates the child at the age of eighteen, is not of itself an emancipation of the child. Merrimack County v. Town of Jeffrey. Opinion by Allen, J.

JURISDICTION OF SUIT UNDER BANKRUPT ACT BY STATE COURT.-A State court has jurisdiction of an action brought by an assignee in bankruptcy to recover money paid by the bankrupt to the defendant in fraud of the bankrupt law. Gage v. Dow. Opinion by Doe, C. J.

511; Campbell v. Mackay, 1 Myl. and Cr. 603; Free v. Buckingham, 57 N. II. 97; Gaines v. Chew, 2 How. 619. (2) When jurisdiction in equity has once rightfully attached, it will be made effectual for the purposes of complete relief. Eastman v. Savings Bank. Opinion by Stanley, J.

WILL-VALIDITY OF. - If a person of sound mind executes a will without undue influence, knowing its contents, it is not invalid because he has not sufficient knowledge of his property; but if he does not know its contents and intend it for his will, it is. Pettes v. Bingham, 10 N. H. 514; Barker v. Comins, 110 Mass. 477; Shailer v. Bumstead, 99 id. 112; Swett v. Boardman, 1 id. 258; Osborn v. Cook, 11 Cush. 532. Jenness v. Hazelton. Opinion by Bingham, J.

CONNECTICUT SUPREME COURT OF ERRORS ABSTRACT.*

CONTEMPT-INHERENT POWER IN COURTS TO PUNISH FOR-PURGING CONTEMPT - TRIAL BY JURY. — (1) The statute (Gen. Stat., tit. 4, ch. 6, § 15), which provides for the punishment of contempts committed in the presence of the court, leaves all other cases of contempt to be ascertained and punished according to the course of the common law. The same principle which governs courts in enforcing their decrees by a judgment for contempt will justify them in the use of the same means to protect their jurisdiction in order that they may pass decrees. The power to enforce by attachment its own orders and decrees necessarily inheres in every court of record, and that power has been repeatedly exercised by the Superior Court in this State with the sanction of this court. Lyon v. Lyon, 21 Conn. 185; Rogers Manufacturing Co. v. Rogers, 38 id. 121; Tyler v. Hamersley, 44 id. 393; Anonymous, 1 Anst. 212; Riggs v. Whiting, 15 Abb. Pr. 388; Richards v. People, 81 Ill. 551; Cochrane v. Mead, L. R., 20 Eq. Cas. 282. (2) Where the parties charged with the contempt have testified under oath that they acted in good faith and intended no disrespect to the court, it does not so far purge the contempt that no further proceedings can be had against them except a prosecution for perjury. The practice in this State is to receive other testimony and settle the whole question of contempt in one proceeding. (3) The respondents in such a proceeding for contempt are not entitled to a trial by jury. State v. Matthews, 37 N. H. 450; Oswald's case, 1 Dall. 819; State v. Bicht, 23 Miun. 411; State v. Doty, 32 N. J. Law, 403; Crow v. State, 24 Tex. 12 Huntington v. McMahon. Opinion by Carpenter, J.

SURETYSHIP-LIABILITY FOR ACTS BY PRINCIPAL BEFORE EXECUTION OF BOND-TESTAMENTARY TRUS

TEE-DUTY AS TO DISCLOSURE,—(1) A testamentary trustee gave a bond with the defendant as surety for the faithful discharge of his trust. He had held the trusteeship for some time before, the bond being given in place of another, and it appeared that at some time previous to giving the new bond he had had the trust fund uninvested in his hands. Two years later he was removed and the fund was found to have been converted by him. Held, that as he had a right to hold the fund during his trusteeship, it was no answer to the claim upon the defendant on the bond that the conversion might have been made before the bond was given, his completed default being his neglect to pay over the fund in money or proper securities to his successor. (2) The accounts of testamentary trustees appear upon the probate files and records, and are open to the inspection of the public, so that a surety has the means of informing himself with regard to the faithfulness of his principal. It is the duty therefore of *To appear in 48 Connecticut Reports.

the surety to inform himself, and he is not discharged by the same failure on the part of a cestui que trust to give information or take measures for his protection that would discharge the surety on a bond for the faithfulness of a private servant. State of Connecticut v. Howarth. Opinion by Pardee, J.

WILL- - FRAUD AS TO SINGLE LEGACY DOES NOT INVALIDATE OTHERS. — Fraud or undue influence in procuring one legacy in a will does not invalidate other legacies not so procured. Where the issue is as to the fact of undue influence in procuring a will, and it appears that the undue influence was confined to a single legacy in the will, the jury may find under that issue the will void as to the legacy and valid as to the others. Trimlestown v. D'Alton, 1 Dow. & Cl. 85; Florey's Ex'r. v. Florey, 24 Ala. 241. Harrison's Appeal. Opinion by Loomis, J.

WEST VIRGINIA SUPREME COURT OF APPEALS ABSTRACT.

FRAUDULENT CONVEYANCE TO INNOCENT PURCHASER FOR VALUE NOT IMPEACHABLE. - The statute for the prevention of frauds has been universally considered as an exposition of the common law, and was intended to avoid deeds contrived and devised fraudulently for the delaying and defrauding of creditors in those cases only where both parties participate in the fraud. The grantor may intend a fraud, but if the grantee is a fair bona fide and innocent purchaser, his title is not to be affected by the fraud of his grantor. Under our statute of frauds, as well as the English statute of 13th Flizabeth, a bona fide purchaser for value, having no notice of covin, fraud, collusion, &c., will be protected. To vitiate a conveyance there must be a fraudulent design in the grantor, and notice of that design in the grantee. Goshorn's Executor v. Snodgrass. Opinion by Haymond, J. [Decided April 30, 1881.]

In an action for malicious prosecution, when defendant set up that his acts charged were done under advice of counsel, held that such advice ought not to be taken into consideration in determining whether probable cause existed or not. It should however be considered by the jury in determining the question of fact whether the defendant was or was not actuated by malice, and it is entitled to more or less weight or no weight at all, according to all the circumstances attending it, all of which could be considered by the jury. The circumstances referred to are such as these: Whether the advice of counsel was sought bona fide or was sought only as a mode of protecting the defendants in a contemplated wrong; whether it was followed in good faith or not; whether it was really believed to be good counsel by the defendant; whether the attorney giving the advice was an attorney of character and standing or otherwise; whether he was or was not candid and disinterested in the opinion of the defendant in giving the advice; whether all the facts and circumstances known to the defendant were frankly communicated to the attorney, or a portion of them suppressed or misstated; whether the defendant had or had not made a careful investigation of the facts before consulting counsel. Under some circumstances this advice of counsel ought to be entitled to great weight with the jury as tending to show that the defendent was not actuated by legal malice; under other circumstances it would be entitled to very little or no weight, or might even tend to show that the defendant was actuated by malice. The jury alone should determine the character and effect of such advice. Vinal v. Core. Opinion by Green, J.

[Decided April 30, 1881.]

STATUTE OF LIMITATIONS NEW PROMISE - EXTRINSIC EVIDENCE TO IDENTIFY DEBT. To remove

the bar of the statute of limitations by a new promise in writing, such promise must be determinate and unequivocal; and if the new promise is to be raised by implication of law from an acknowledgment, there must be an unqualified acknowledgment of a subsisting debt which the party is liable and willing to pay. If such acknowledgment or promise is contained in a letter of the defendant to the plaintiff, it is not necessary that the amount of the debt or that its date should be specified in the letter, but the particular debt to which the letter refers may be identified by extrinsic evidence-written or parol-and if so identified clearly, and the promise is unequivocal, or the acknowledgment is of a subsisting debt for which the defendant is liable and willing to pay, the bar of the statute of limitations is thereby removed. Abraham v. Swan. Opinion by Green, J. [Decided August 20, 1881.]

BURDEN OF PROOF

NAME OF TESTATOR

WILL WRITTEN BY ANOTHER-ATTESTATION. - (1) At common law a man could not make a will, and the statutes of wills changing the common law and permitting persons to dispose of their property by will, but requiring that the testator should be of sound mind as to testamentary capacity, changed the common-law presumption of sanity, and cast the burden of proof upon the propounder of the will to show that the testator was sane when the will was executed. (2) If one having testamentary capacity is unable from any physical cause, to write his name to his will, another person may steady his hand and aid him in so doing; and it is not necessary to prove an express request from the testator for such assistance; and it may be inferred from the circumstances of the case. (3) The attestation of a will is necessary to its execution, and if before this important part of the execution, and while it is being done, the testator, by reason of either unconsciousness or physical inability, was unable to dissent from the attestation and to arrest and prevent the same by indicating his dissent or disapproval, if he had desired to do so, the will is not valid. It is not necessary that the testator shall actually assent to the attestation, but when the attestation is made, he must be in a mental and physical condition which will enable him to dissent from the attestation if he desires; and if his condition is such that he could give dissent or disapproval if he chose to do so, but did not, his assent will be implied. McMechin v. McMechin. Opinion by Johnson, J.

Decided April 30, 1881.]

CORPORATION

FINANCIAL LAW.

NEGOTIABLE NOTE OF-INDORSE

MENT. An action may be maintained by the indorsee of a promissory note payable to the order of a corporation and indorsed thus: "Charles B. Folsom, Treas.," by one who held that office in the corporation and was authorized to perform the financial business thereof. Such an indorsement is sufficient to transfer the note. In Farrar v. Gilman, 19 Me. 441, the indorsement was by the cashier; in Chase v. Hathorn, 61 id. 505, by A. Hobart, treasurer of Newport Savings Bank; in Dunn v. Weston, 71 id. 275, by the treasurer. In Castle v. Belfast Foundry Co., 72 id. 167, the signature was Wm. H. Castle, President. In Nicolas v. Oliver, 36 N. H. 219, the indorsement was by W. Earl, Sec'y, and held a good indorsement of a note payable to an insurance company. In Folger v. Chase, 18 Pick. 63, the note of the bank was indorsed P. H. Folger, Cashier, and it was held to pass the title to the note, Wilde, J., remarking that "the indorsement by the cashier in his