cases, with more or less distinctness, recognize principles which directly sup-cussion of the question, Judge Lowell decides that a debt barred by port the reasoning that leads to such a decision. Of numerous cases a few the statute of limitations of the state where the bankrupt resides, may be cited: McAllister v. New England Mutual Life Insurance Co., I can not be proved against his estate in bankruptcy. The decisBig. 293, 101 Mass. 558; New England Mutual Life Insurance Co. v. Hasion is made to rest upon the English authorities and upon the brook's Admin., 2 Big. 27, 32 Ind. 447; Boker v. Union Life Insurance Co., 1 Big. 595, 6 Abb. Pr. (N. S.), Supreme Court, 144; Hodsden, Admx., v. Guardian Life Insurance Co., 1 Big. 218, 97 Mass. 144; Kentucky Mutual Insurance Co. v. Jenks, 1 Big. 101, 5 Ind. 96. This ruling is in accord with the principle uniformly recognized that language must be interpreted most strongly against the one preparing the contract, because it is his language. This has been applied to policies of insurance in may cases. Young, Admr., v. Mutual Life Insurance Co., 4 Big. 1, U. S. S. C. C. California, 1873; May on Insurance, 181; Tiernay v. Ethrington, 1 Burr. 34; Dow v. Hope Insurance Co., 1 Hall, N. Y. Superior Court, 174; Hoffman v. Ætna Insurance Co., 32 N. Y. 405; Westfall v. Anderson River Fire Insurance Co., 2 Duer, N. Y. Superior Court, 490; Cropper v Western Insurance Co., 32 Penn. St. 351; Bartlett v. Union Mutual Fire Insurance Co., 49 Me. 500; 2 Bla. Com. 12th Ed. 380; Rodger v. The Comptoir d' Escompte de Paris, L. R. 2 P. C. 393; Broom Legal Max 7 Ed. 550. A contract should be construed by the courts, ut res magis valeat quam pereat. It will be noticed that by the statement of facts agreed upon as recited in the opinion the recovery was too large. Warnecke had executed two notes for the entire sums for which notes were to be given for two years, and had opinion says he had made but three semi-annual payments; this would not entitle him to two full tenths, though the judgment was given for that amount. The brief of the appellant, however, says that four semi-annual payments were made, and therefore the statement in the opinion is erroneous, and the judgment was for the proper amount according to the facts. The omission will doubtless be noticed before it it perpetuated in the Reports. paid the interest on the first note when the second was executed. But the J. A. F. Bankruptcy Debts Barred by Limitation. IN RE NÆSEN. principle that statutes of limitation are remedial, and that after the * * * * In Rẻ Harden, 1 N. B. R. 395, Judge Fox, following Judge Lowell, holds, that a debt barred by the statute of limitations of Maine, where the bankrupt resided, could not be proved against his estate in bankruptcy by a creditor resident in another state. He says, "I have no doubt that for the purposes of the discharge, these demands are to be considered as provable debts, and that if the bankrupt obtains his discharge, he will be protected against them. Such demands are of a provable character, but are no longer due and payable within the meaning of the act, because the law of the forum, designated by Congress for the adjudication of the matter, presumes they are paid, and a paid demand no longer exists as a provable legal cause of action against the debtor." In Re Sheppard, 1 N. B. R. 439, Judge Hall, adopting the views United States District Court, Eastern District of Wisconsin, of Judge Blatchford, in a case which will be next noticed, holds August, 1875. Before Hon. CHARLES E. DYER, District Judge. that a debt barred by the statute of limitations of the state in which the bankrupt resides, may still be proven against his estate in bankruptcy. The principles he invokes are, that a debt A debt barred by the statute of limitations of Wisconsin, is not provable against the against which the statute of limitations has run, is still a debt; that estate of a bankrupt. the operation of the statute does not extinguish the debt but only affects the remedy, and that statutes of limitation have no effect beyond the territorial limits of the state enacting them. In Re Ray, 1 N. B. R. 203, Judge Blatchford gives to the question an elaborate examination. Conceding the rule in England to be as stated, he makes a distinction between the English statute of limitations and the statutes of limitations in the American States. He says "the English bankruptcy law is co-extensive as to territorial operation with the English statute of limitations. The bankrupt act of the United States operates in all the states as well as in New York. Under these circumstances I think," he says, "that a debt to be barred by limitation so as not to be provable under the bankrupt act as not being due and payable, must be shown to be barred throughout the United States." Referring to the statute of limitations of New York as applicable to simple contracts, and which is identical in language with the Wisconsin statute, Judge Blatchford holds it to be a statute affecting the remedy only and not the contract, and says it could never be "invoked as a bar to an action in another state" on the contract. He says further in his opinion that "a complaint setting out a cause of action which appears to have accrued more than six DYER, J.-The single question here presented is, whether a claim barred by the statute of limitations of the state of Wisconsin, is provable in bankruptcy. The question arises upon a contest between the petitioning creditors and the debtor, the latter | seeking to defeat the petition on the ground that one-fourth in number and one-third in amount of creditors holding provable debts against him, have not joined in the petition. To support this claim, he interposes demands against himself, in favor of his father-in-law, on their face barred by the statute of limitations The bankrupt act provides, that a petition for adjudication must be made by one or more of the debtor's creditors, who shall constitute one-fourth thereof at least in number, and the aggregate of whose debts provable under the act amounts to at least one-third of the debts so provable. Is a demand, barred by the statute of limitations of this state, a debt, owing by the bankrupt and provable under the act? In England the question has been put at rest by adjudications that a debt, the recovery of which by action may be defeated by a plea of the statute of limitations, can not be proved in bankruptcy. Ex parte Dewdney, 15 Vesey, 479; Re Clendening, 9 Irish Eq. Rep. N. S. 287; 1 Christian Bankruptcy, 221. Four cases are reported in the 1st vol. of N. B. Register Re-years before the action was commenced, is not objectionable on its ports, which I proceed to notice. In Re Kingsley, 1 N. B. R. 329, one of the questions was, whether a debt barred by the statute of limitations of the state of Massachusetts, where the bankrupt then resided and where the proceedings were had, but not barred by the statute of limitations of Vermont, where the creditors resided, and where both parties resided when the contracts were made, could be proved against his estate in bankruptcy. Upon a full dis face or open to a demurrer. The defence of the limitation must be set up by answer. If it is not so set up, it is waived." Recognizing the distinction between a law which extinguishes the contract as the result of limitation, and a law which simply limits the time within which an action may be commenced upon the contract, and holding that a law of the latter character can not be invoked as a bar to an action on it in another country, he construes the statute of New York as not barring the debt, and as not affecting the contract, but as merely reaching to the remedy, and so concluding that a debt is provable in bankruptcy, unless barred throughout the United States. principle was "novel, erroneous, mischievous, and likely to become dangerous," and his lordship protested against the apparently assumed right of foreign interference in the home rule of a sovereign state. In the course of his reply the noble foreign secre Thus it will be seen from these decisions, that the question | tary made some observations which seem to us to call for comment, turns upon the point as to whether the effect of the statute is to destroy the coutract and extinguish the liability, or merely to affect the remedy on the contract. Without considering the distinction taken by Judge Blatchford on the English decisions, upon which he concludes that a debt must be barred througout the United States, so as to make it a debt not provable under the bankrupt act, it is sufficient to say, that the courts of this state place upon the statute of limitations a construction radically different from that given by Judge Blatchford. To illustrate,- although the statute of Wisconsin, like the statute in New York, requires that the defence of the statute of limitations must be set up by answer, the supreme court of this state have held, that where it appears upon the face of the complaint, that the plaintiff's claim is barred by the statute, the objection may be taken by demurrer, and that in such case the demurrer is an answer within the meaning of the statute. Howell v. Howell, 15 Wis. 55. See also New Jersey v. New York, 6 Peters, 323. because they are capable of a construction that is inconsistent Further, the supreme court of this state have held in Brown v. Parker, 28 Wis. 22, that the lapse of time fixed by the statute of limitations of this state as to parties residing therein, does not merely affect the remedy, but extinguishes the right, and that this applies to contract debts as well as to the title to property. This is a very strong case, and one in which Justice Dixon elaborately reviews the law on the question, holding that under the statute the debt by lapse of time becomes a nullity, and as if no debt or promise had ever existed. The result of this decision upon the facts of the case, was, that where a note made in this state and of which the maker and holder were residents, had been barred and the debt thus extinguished (by the law of this state as interpreted by its courts), and the note was then sued upon in a court of Illinois, the defence upon the lex loci contractus, if set up there would have been good, and a judgment upon such note entered in Illinois by confession upon warrant of attorney, was relieved against. The principle that, as to parties residing in this state, the statute of limitations does not affect the remedy only, but directly extinguishes the right after the statutory period has elapsed, was also settled in this state in Sprecker v. Wakely, 11 Wis. 432, and Knox v. Cleveland, 13 Wis 245. Now it is a settled principle, that the lex fori must prevail as to statutes of limitation. "The federal courts sitting within the respective states, regard their statutes of limitation and give them the interpretation and effect which they receive in the courts of the state." In re Cornwall, 6 N. B. R. 318; Shelby v. Grey, 11 Wheat. 361; McCluny v. Silliman, 3 Peters, 270; Green v. Neal's Lessee, 6 id. 291; Ross v. Duval, 13 id. 45. Giving to the statute of limitations of this state the interpretation placed upon it by the courts of the state, I must hold that, as the parties are residents of this state, the demands in question being barred by the statute, are extinguished, and are therefore not provable claims against the estate of the bankrupt. They are as if they had never existed. The views I have expressed are, I think, sustained by Judge what its international duties are." The sovereigni right is distinct Woodruff, in Re Cornwall, 6 N. B. R. 305. Selections. MUNICIPAL AND INTERNATIONAL LAW.-On Monday Lord Penzance called the attention of the House of Lords to a passage in the much-discussed German despatch to the Belgian government. The German minister writes: "These are incontestable principles of international law, that a state ought not to permit its sub jects to disturb the internal peace of another state, and is bound to take care that it is in a position to fulfil this international obligation." The noble and learned lord said that he believed the A state is either sovereign or dependent, and if it is sovereign, it is absolute within its domain-that is to say, it can maintain or make any laws it pleases without consulting any other government, in other words, no government has any lawful cognizance of the municipal laws of an independent foreign state. If we have correctly stated the nature and privilege of sovereignty, then the dictum attributed by Lord Derby to Lord Penzance, is correct, id est, "that each state is necessarily supreme in the making of its own municipal law; and that no other state has a right to call upon it to make alterations in that law." But we altogether deny the conclusion that Lord Derby derives from the proposition. The supreme right of a state to make its own municipal law, does not confer upon that state the right to "be the sole judge for itself from the international obligation. No doubt that practically there is some relation between municipal and international law. A state can not readily fulfil its international obligations if its municipal law is not framed to prevent the violation of these international obligations. But that, we submit, does not involve the right of oreign interference with the municipal law of a sovereign state. We agree with Lord Derby, that it would be no answer to the charge of non-fulfilment of international duties, to say that the municipal law did not admit of their fulfilment. Why should not that be a valid answer? Because those international duties are not subject to the provisions of the municipal law, but are absolute obligations, whether they do or do not accord with be municipal law. The aggrieved state has a right to demand the fulfilment of international duty, without regard to the municipal law of the of fending state, but it has no right to ask for an alteration of the municipal law. It must leave to the sovereign state to adopt what means it pleases for the fulfilment of its international duties. We repeat that it is desirable and even necessary for the municipal law to provide for the due enforcement of international obligations, but it is not the right of the foreign government to dictate what municipal legislation or means shall be adopted to ensure the fulfilment and to prevent the violation of international obligations. It is, we conceive, of the utmost importance to assert the principle, that a sovereign state is necessarily and without exception supreme in the making of its own laws, and that no other state has a right to call upon it to make alterations in that law. Otherwise there would be a loophole for intervention in domestic affairs by a foreign state. For instance, a state might insist upon an alteration of the municipal law of another state, to prevent an assumed danger of a breach of international duty. As the law now stands, there is no excuse for such an interference. The government is responsible to the foreign governments for the fulfilment of its international obligations; but what means are adopted to fulfil them is no lawful concern of any other government.-[The Law Journal. THE EXERCISE OF THE PARDONING POWER.-In Massachusetts there is annually published, along with the laws of the year, commonly called the "Blue Book," a statement made by the Governor to the legislature of the pardons granted during the year past, and the reasons for granting them. The "Blue Book for 1875" has lately appeared, and an examination of the reasons assigned for the eighty-seven pardons granted during 1874 suggests some criticism which may be interesting to our readers. When a man is ac-cused of crime, it is for a jury to say upon their oaths whether the witnesses against him deserve belief, whether their evidence, if believed, proves that he did the act charged, and whether he did it while of sound mind and responsible for his actions. It is then the duty of the presiding judge to impose sentence, in which the law often gives him a discretion, according to the aggravation of the offence as proved before him. If there have been any irregularities in the proceedings, the sentence can be reversed by a court of appeal. In each of these stages every precaution is taken to secure a just and correct result, and that result, when reached, ought, in the absence of fraud, to be final. How is it in fact? The governor and council of Massachusetts, it seems, feel authorized to review the evidence and find a new verdict of their own, which releases the prisoner. Thus, in case 14 of the list just cited, a pardon was granted because "the prisoner was evidently insane when the assualt was committed" (a point of which the jury were clearly the best judges); and in case 50, because the "council felt there was reason to believe" that the witnesses for the prosecution were perjured. In other words, they presumed guilt to exist in several persons who had never been convicted, in order to be able to presume innocence in one who had been convicted. Again the pardoning body is in the habit of thinking that judges abuse their discretion in the matter of sentences. In more than a dozen cases the sentence was remitted because it "seemed too severe" (as in case 29), or because the prisoner, having served part of it, was "regarded as sufficiently punished" (as in case 40). If the judges do really err on the side of long sentences, it may be accounted for by the fact that the term is very likely to be curtailed, while it cannot be extended, by a superior power. Further, the pardoning body takes upon itself to reverse a judgment, as a court of appeal might do, if they think there is a legal error in the proceedings. In case 5 pardon was granted because of "illegality of sentence. The property stolen was less than $100 in value, and the prisoner could not be legally sentenced for more than one year." In these cases pardons were granted for reasons which might legally have availed the prisoner if they had been alleged before the proper tribunal at the proper time, and then made to appear true. But the prisoner failing to satisfy the jury that he was insane, or the judge that the punishment was unduly severe, had still a chance left with the governor's council. In other cases the reasons alleged are no reasons at all, and could have had no possible influence with any tribunal bound to respect the law and the facts, but seem to have had their effect on a tender-hearted governor and council. Thus, in at least twelve cases, pardon was thought proper because when the offence was committed the prisoner was intoxicated (cases 13, 52, 53, and others). This novel and startling doctrine, that drunkenness excuses crime, is applied more especially to extenuate the crime of rape (cases 81, 62, 70) Let any one imagine the result of this new principle of the criminal law, should it become generally known to the vagrants who now infest the country. Another rule of the law of pardon seems to be that when two are jointly convicted, and one is pardoned, it is but fair that the other should be let loose also. This reasoning appears to have had force in cases 38 and 83. Neither can the governor bear the piteous sight of the parting of twin criminals convicted of the same offence. "Case 47.-Prisoner's sentence was longer than that of his brother, who was to be released Sept. 1. Prisoner was pardoned on the same day, in order that the twin brothers, who had never been separated, might leave prison together." With this conclusive reason for clemency to a thief we leave the Massachusetts Blue Book, though its treasures are far from exhausted.—[ The Nation. THE FUNCTIONS OF JURORS.-Some jurymen, certainly, judging by recent incidents, appear to entertain rather hazy conceptions as to their proper functions. During the trial of Rev. R. O'Keeffe v. Very Rev. Dr. M'Donald, at the Wicklow Assizes, the plaintiff was cross-examining a witness on matters of canonical law, when one of the jurors intervened, and asked Baron Dowse whether his lordship would permit the plaintiff to be putting questions which had no bearing on the case. The learned judge, with pathetic meekness, replied that he was doing his best to keep Father O'Keeffe within legitimate bounds, but that the plaintiff, being his own counsel, should be allowed considerable latitude. The juror was by no means prepared to approve of this dogma, and retorted that jurors had rights and privileges as well as the parties in the case. "True," said Baron Dowse, "but one of the privileges of a judge is not to be criticised by a juror." The duel had now assumed a triangular aspect. Indeed, there was no knowing how the conflict of privileges would be terminated, unless by some oracular judgment like Sir John Finett's, on the solemn question "which was the upper end of the table;" that "in spite of the chimneys in England, where the best man sits is that end of the table." But, fortunately, another juror interposed with a compliment to his lordship on the patience with which he was hearing the case; and the episode concluded by the learned judge stating, obiter, that it was the first time he had ever been accused of being over-patient, and he was really surprise at it himself. Some English jurymen seem to hold notions no less nebulous as to the boundaries of the jury-box, and occasionally overstep the limits allowed to them by law. In the case of Smith v. Sorby, which has just been heard on the Midland Circuit, the plaintiff having deposed that it is an universal practice with all waggon companies to allow a commission to agents of £1 per waggon, a zealous juror cried out, "My Lord, if you will swear me, I will swear that is not true." "You cannot give evidence; you must only listen to it," answered Mr. Justice Lindley. Might, then, this particular juror allow his own knowledge to sway him in finding a verdict? By no means. His oath is that he shall find a true verdict "according to the evidence," not according to right or according to justice; and a verdict contrary to the evidence produced in court, though consonant with right or abstract justice, could not stand. Where it otherwise, indeed, we should have a resuscitation of the inconveniences attendant on the ancient provision that is the gist of the matter, and my question, why should not such rules be adopted with respect to the testimony of such persons, as exist concerning infants, imbeciles and notorious liars? remains as yet unanswered. "The rule which excludes evidence of the moral character and habits of witnesses," if there be such a rule, is not involved at all. Indeed, the defect which it was attempted to point out consists of the fact that the existing rules of evidence do not in any respect reach the question. The "habits" of a witness, it may be said, however, are directly the subject of investigation, virtually, in all cases where his reputation for truth and veracity" is enquired into. It is not contended that the "moral character and habits of every witness" should be "made the subject of public investigation," any more than the " reputation for truth and veracity" of every witness is now put in question; but only that habits of open profanity, or, if you please, the general reputation" of the witness in this respect, should be made as much a subject of enquiry for the purpose of impeaching testimony, in the same manner and to the same extent, as are habits of lying, or the "general reputation for truth and veracity." Such an enlargement of the rules of evidence could scarcely meet with more objection from "men of delicate sensibilities" than the rule as to "reputation for truth and veracity," unless the number of men possessing" delicate sensibilities" is much larger among those addicted to profane swearing, than among those whose "reputation for truth and veracity" is called in question, which it is to be hoped is not the case. jurors should be "next neighbors," who were supposed always to have evidence in their own breasts. Another English juror-the foreman of the jury which recently convicted a German sailor of murder for stabbing the mate of his ship-writes to the newspaper to express his regret and surprise at the announcement, that the capital sentence is to be carried into effect. He has written, he says, to the home secretary, praying for a mitigation of the sentence, on the ground that the jury thought the case "nearly allied to one of manslaughter," but ultimately decided that it was murder. By having accompanied their verdict with “ a strong and unanimous recommendation to mercy," they thought, the foreman says, they "should be strictly carrying out the law, and, at the same time, almost insuring the remission of the capital sentence." Whatever be the true sense of the words of the juror's oath, in criminal cases, that he will "well and truly try the prisoner at the bar, and a true deliverance make "-whether "deliverance" is to be construed as meaning a deliverance of opinion, or be taken as a corruption of deliberation, and so mean a true deliberation make -the jurors must, at all events, in such cases remember that their office is merely to decide whether certain facts alleged by the prosecution were proven. If they considered that the provocation in the case referred to was excessive, it was open for them to have brought in a verdict of manslaughter, but the foreman, who says that by finding the prisoner guilty of murder they were "strictly carrying out the law," evidently does not consider that manslaughter" would have been a proper description of the crime. The verdict of "murder" being once brought in, the jury had no Finally, it is because so little attention is paid to the question further concern with the matter. Of course any representations whether habitual profanity is more or less dangerous to the truth of addressed to the minister who disposes of the mercy of the crown testimony than habitual lying, that the suggestion of the necessity would receive due attention; but it is impossible to admit the pre-of changes in the rules of evidence was offered. If a test of the tension that any recommendation of a jury should be binding up-truth and value of evidence is permitted as to habitual lying, why on the discretion of the home secretary. The pretensions of this should it not be permitted as to habitual swearing? Which is the jury amount virtually to a demand to be allowed to qualify their most calculated to endanger the truth of evidence? These, as has verdict with the "extenuating circumstances" admitted by the been said, are questions which remain unanswered. French law, but which the experience of France does not encourage us to adopt. The legislature of California has proceeded even further, by passing a law giving juries power, where a prisoner is convicted of murder in the first degree, of commuting the punishment to imprisonment for life. Unless the necessity be urgent or the utility evident, we should be slow to admit of any innovation in trial by jury, which the author of "Eunomus" well pronounced "the noblest form of policy that was ever invented on earth, and (may I add?) comes nearest the impartiality of Heaven."[The Irish Law Times. Correspondence. IMPEACHMENT OF WITNESSES. ་་ C. COMMENTS. If there is any necessary connection between swearing and lying, there would seem to be sense in what our correspondent says. But it is believed that, except in the opinion of religious zealots, there is no such connection. Experience proves that a great many thoroughly profane men are thoroughly truthful; and this of itself shows that the rule for which "C" contends would be without safety as a test of credibility. Lying, stealing, receiving stolen goods, obtaining goods under false pretences, counterfeiting and cheating, all belong to the same family of crimes. The essential element of each one is falsehood; and there would seem to be some sense (if it were not for the inconvenience of trying each witness without an indictment against him), in proving that a witness is a thief or a counterfeiter, in order to diminish the value of his testimony; because a thief or a counterfeiter is necessarily a liar. But there would seem to be no more sense in proving that a man is a blasphemer, in order to impeach his testimony, than there would be in proving that a woman is a prostitute for the same purpose; and that the latter can not be done, was held by the Supreme Court of Kansas in Craft v. the State, 3 Kansas, 480, in which case the learned court, by Crozier, Ch. J., said: ST. LOUIS, Aug. 25, 1875. EDITORS CENTRAL LAW JOURNAL:-Your "comments," (ante, p. 527), seem to entitle me to a reply, which may, however, be made quite briefly. Acknowledging that a carelessness of expression may have given you some excuse for your strictures as to the language commonly used by courts in instructing juries; as to evidence of the reputation rather than the habits of witnesses, usually admitted for purposes of impeachment; and as to the several forms of oath in use; permit me to say, with all due deference, that you seem to have entirely overlooked the real question. The "premises" upon which my suggestions were based, do not con- "Again, it is said that if the jury were convinced from the evisist of these minor details, but of the broad, palpable and well-dence that she was a common prostitute, they were bound, as known fact, that oaths in various forms are daily administered in a matter of law, to reject her testimony; i. e., the law precourts of justice to persons who demonstrate, beyond the possi- sumes that when a woman loses her virtue she will not tell the bility of a doubt, that they have, as was said in my former com- truth. This would be a very harsh rule, unsupported by authority munication, so little comprehension of, and regard for the solemn except in one state of the union, and entirely indefensible by any nature, sanctity and binding force of an oath, that they make it process of reasoning that this court can conceive of. A woman's their daily habit to deride and take in vain the name of that God chastity should be the 'immediate jewel of her soul,' and with to whom they thus so solemnly appeal; and spend their lives in reference to consequences to herself, the very last virtue she would utter disregard, and open defiance of the very principles by which be willing to surrender; but when it is considered that she is rethey are supposed to be governed in taking the oath. This, then, garded as the weaker vessel, that she is of a softer nature, of a more yielding disposition, and more vulnerable through the affections than we are, it ought not to be said, when, in the warmth of sexual excitement and in the glow of natural passion, produced by the soft whisperings, the fervid protestations, the gentle pressures and other kindred blandishments, which may be imagined, she submits to the embraces of her lascivious lover, that she pours out from her heart at Venus' shrine, with her virtue, every other good quality with which, in our thoughts, we endow her sex. Yet the position assumed must come to that. If, as a matter of law, her testimony must be rejected when her virtue is lost, the principle will be the same whether she habitually flaunts her frailty in the face of the world, or attempts to hide it in retiracy, or garnish it with garlands of good works." Other authorities might be cited to the same general view; but the reasoning of this case is deemed conclusive.— [Ed. C. L. J. Recent Reports. REPORTS OF CASES IN LAW EQUITY, DETERMINED IN THE SUPREME JUDICIAL COURT OF MAINE. By EDWIN B. SMITH, Reporter to the State. Volume 63. Portland: Dresser, McLellan & Co. 1875. PP 599 and index Number of cases reported, 156. The excellent paper and binding, wide and full pages, and careful arrangement, make this a very handsome and attractive volume. The substance of the syllabus of nearly every case is stated in an Italic head-line-a feature to which we are exceedingly partial, and which we hope to see all the reporters adopt. Deceit-Misrepresentations in Sale of Patent Rights.-Bishop v. Small, p. 12. Opinion by Peters, J. An action of deceit will not lie upon false representations either as to what a patent right cost the vendor; or was sold for by him; or as to offers made for it; or profits which could be derived from it; or for any mere expressions of opinion of any kind about the property sold. Bank Check-Withdrawal of Deposit before Payment.-Emery v. Hobson, p. 32. On exceptions. A check is an appropriation pro tanto of the maker's funds in the bank. If the maker has withdrawn his deposit before payment, no presentment was essential, and he suffered nothing by delay in presentment. He was bound to keep funds in the bank for its payment. Testimony as to the purpose of the parties was immaterial. Railroad-Lessor of a Railroad not Liable for its Management while Leased.-Mahoney v. Atlantic and St. Lawrence R. R., p. 68 Opinion by Dickerson, J.; Walton, Barrows and Virgin, JJ., not concurring. Trespass for an assault upon the plaintiff, and expelling him from a train run ning over defendant's road. The road was operated by the Grand Trunk Railway Co., under lease from the defendant. Held, that the defendant was not liable, in the absence of any provision making them so in their charter or any statute. But Bean v. A. & St. L R. R., where fire was communicated from an engine of the Grand Trunk Company, lessees, to property along side of the track, the defendant company was held liable, the statute authorizing the lease expressly providing that no liability imposed by any general law shall be removed from the lessor company and imposed upon the lessee. Promissory Note-Statute of Limitations.-Merrill v. Merrill, p. 78. Rescript by Danforth, J. An action for money had and received, sustained by a valid promissory note, signed in the presence of an attending witness, is an action upon such note, within the meaning of the statute, and may be maintained within the same period of limitation as if the note had been specifically declared upon. Appleton, C. J., Cutting, Barrows and Peters, JJ., concurred. Dickerson, J., in an able opinion, contra. Held, that the statute of limitations, which provides that all actions of assumpsit shall be commenced within six years from the time the cause of action accrued, and not afterwards; and also that such provision shall not apply "to actions brought upon promissory notes when signed in the presence of an attending witness," was not satisfied by the bringing of the present suit. Virgin, J.. concurred. proved, they should hold such a contract to have been made with reference to it. The court sustained exceptions thereto. Bailment--Relinquishment of Possession by Bailee-Waiver of Lien.--Robinson v. Larraba, p. 116. On exceptions. Opinion by Dickerson, J. The voluntary relinquishment by a bailee of the possession of the subject of bailment, discharges his lien for services, etc., concerning it, unless it is consistent with the contract of bailment, the course of business, or the inten tion of the parties, that it should continue. The presumption is that when he parts with the possession, he abandons his lien, unless his conduct in so doing is explained. Such forfeiture once incurred is not in turn waived by a subse quent possession of the subject by the bailee, unless such is the intention of the parties. Promissory Note-Estoppel.-South Boston Iron Co. v. Brown, p. 137. Opinion by Barrows, J. Brown made his promissory note, for partial payment, of a piece of work to be done for him by the Irving Bark Extract Co., payable, at the request of the last named company, to the plaintiff company, to which it was indebted, but with which Brown had no dealings. The Irving, etc., Co., failed to perform the work, and Brown pleaded failure of consideration, when sued by the plaintiff company, on the note. Held, that he was estopped from so doing. Admiralty Law-Bill of Lading-Evidence-Secondary, when Admissible.-Dyer v. Fredericks, p. 173. Opinion by Barrows, J., printed at page 594. Rescript: Where the plaintiff offers parol evidence of the contents of a bill of lading upon which he relies, originally executed in duplicity, the burden is upon him to show that neither of the parts can be produced. If the parol testimony which he offers is received, the presumption is that he has satisfied the court of this; and when there is no ground for suspicion that either part is in the possession or under the control of the defendant, that presumption in not overcome by the naked fact that the defendant, a master of a vessel, testifies that one of the parts was once in his possession, and was delivered by him to one of the owners of the vessel at the end of the voyage ten years previous to the trial. If the plaintiff believes that there is a reasonable probability that the ship's bill thus referred to can be produced, it is his duty to move the court for leave to summon the owner to produce it. If he does not do this, the burden being upon him to account for the non production of other of the bills, he can not object to the defendant's use of parol testimony to rebut the same kind of evidence adduced by himself. Master and Servant-Liability for Misconduct.-Grand Trunk Railway Co. v, Nathan, Admr., p. 177. On exceptions. Opinion by Appleton, Ch. J. A servant is liable to an action at the suit of his master, when a third person has brought an action and recovered damages against the master, for injuries sustained in consequence of the servant's negligence or misconduct. The servant is liable for costs and counsel fees in such suit, incur red in the defence, he having been notified of its pendency, and having requested his master to defend. Carrier's Lien-Car Missent over Wrong Road.-Jones v. Boston & Albany R. R., p. 188. The plaintiff contracted with the Red Line Transit Co., composed of several railway companies, including the defendant company, to transport a quantity of corn from Delavan, O., to East Boston, Mass. The corn was intended for Springvale, Me., but by mistake of the shipper, or the clerk at Toledo, O., was billed to Springvale, N. H. Evidence-Samp es of Liquor in the Jury Room.-State v. McCafferty, p. 223. Whether hop beer is, or is not intoxicating, is a question of fact for the jury. The jury having been allowed to take with them to their room a bottle containing a liquid called ale, which, though no part of the liquors seized, was manufactured and sold by the same person, under the same name, it was held, that there was no legal obligation to this course, the jury having been instructed not to consider the qualities of the contents of the bottle, unless satisfied from the evidence that its character was the same as that of the liquor seized. [It to be hoped that this may not be looked upon as a crooked او whiskey cases, now so numerous ] Usage-Inoperative if Contrary to Law, or Repugnant to the precedent, by the courts which may be called upon to try the Contract sought to be Varied by it.-Randall v. Smith, p. 105. Dick erson, J., delivered the opinion On exceptions by plaintiffs to instructions of the justice of the supreme court. A usage, to affect a contract proved, must not be contrary to law, or repugnant to the contract which is sought to be varied by it. The court below instructed the jury that a usage between coal-dealers and ship-masters, that contracts to load vessels with coal were generally treated as binding only as the convenience of either party, being Railroad-Power of the Railroad Commissioners to Require the Erection of Depot at a Designated Place.-R. R. Commissioners v. Portland & Oxford Central R. R. Co., p. 269. Dickerson, J., delivered the opinion of the court. Railroads are public highways, and are to be conducted in furtherance of the public objects of their creation. The courts, and not the board of directors of a railroad company, are to determine finally the man |