sales made by order of surrogates, is constitutional in its retrospective provision as to titles claimed under sales made before the statute: Per DAVIES, J.; DENIO, C. J., and SMITH, J., concurring: Id.

The evidence necessary to confer jurisdiction upon a surrogate to order the sale of real estate on the application of an administrator, considered and discussed, per DAVIES, J.: Id.

Records of Foreign Courts-Authentication of-Provincial Governments-Conclusiveness of Foreign Judgments. Our statute in respect to the authentication of the records of the courts of foreign countries relates as well to provincial government as to imperial. It embraces the province of Upper Canada, as well as the kingdom of Great Britain and Ireland: Lazier vs. Westcott.

The record of a judgment in Upper Canada is, therefore, properly authenticated by the clerk of the court, the secretary of state, and the governor of the province; and our courts will take judicial notice of their existence and authority, without any certification by the imperial authorities: Id.

The public seal of such a state, attested by the governor-general, proves itself in the same sense and to the same effect as the great seal of Great Britain and Ireland: Id.

An exemplification of a foreign record is received in evidence without any statement therein, or other proof, that it has been compared and found to be a transcript of the original. All that is implied by the statement by the proper authorities that they have caused the record to be exemplified: Id.

It is no objection to the reception and force of the exemplification that it contains interlineations and alterations, marked and verified as such by the initials of the clerk of the court. These are to be presumed properly noted by him at the time he authenticated the roll: Id.

The postea in the record stated that the judge presiding at nisi prius sent up the record had before him on the 19th November 1855, and it appeared that judgment was signed September 26th 1856. It was, therefore (plainly enough), properly averred in the complaint that the judgment was recovered on the latter day; and if this had been an error, it was amendable at the trial, and would be disregarded on appeal: Id.

The judgment of a foreign court is conclusive upon the merits. The defendant can impeach it only by proof that the court had not jurisdiction of the subject-matter or of his person, or that the judgment was fraudulently obtained: Id.

SUPREME COURT OF NEW YORK.1

Practice-Service of Summons by means of a Trick-Attachment against Executors-Suits against Foreign Executors.-Where a defendant residing in Canada was inveigled into the state of New York by a trick, for the purpose of effecting a service of the summons upon him, the service of the summons, and all proceedings dependent thereon, were set aside and a warrant of attachment vacated: Metcalf vs. Clark et al., Executors.

Proceedings by attachment against executors are inapplicable for the purpose of compelling the settlement of the estate of the testator, or of enforcing payment by the executors of an individual demand contracted by the testator, where the executors are not charged with any breach of duty, except a neglect to pay the debt: Id.

An ordinary action at law cannot be maintained in New York against foreign executors as such, since the office of executor de son tort was abolished by statute: Id.

Will; Rules of Construction.-Under the provisions of the Revised Statutes of New York, a will, whether it disposes of real or of personal property, speaks as of the time of the testator's death: McNaughton et al. vs. McNaughton, Executor, &c.

Where a testator devises all his real estate in express and unambiguous words, he will be deemed to have reference to the real estate as it shall exist at the the time of his death: Id.

G. being the owner of a farm and certain personal property, made his will, giving and bequeathing to his wife all his personal estate. He then gave, devised, and bequeathed to his wife "all his real estate," during her life, remainder over to others. He subsequently sold and conveyed the farm to L., taking back from the grantee a bond and mortgage for a part of the purchase-money, which he held at the time of his death. Held, that the bond and mortgage passed to the widow of the testator, as part of the personalty; it being the intent of the testator that the devise should operate only on the real estate of which he should die seised: Id.

Held, also, that if the devise were to be regarded as a devise of the farm, in effect a specific devise, then the sale and conveyance was, to that extent, a revocation of the will: Id.

1 From Hon. O. L. Barbour, to appear in Vol. XLI. of his Reports.

Amendments—Unconscionable Defences.-In exercising the power of allowing amendments "in furtherance of justice," no discrimination should be made by the courts between legal defences offered to be set up, on account of their character. All defences recognized by the statute as being such—including those styled unconscionable, such as the statute of limitations, usury, &c.-stand upon an equal footing in this respect: Sheldon, Receiver, &c., vs. Adams.

A party has a vested right to set up those defences as well as any other when they have become perfect: Id.

After promissory notes given to an insurance company have been sued upon as promissory notes assessed, the complaint will not be allowed to be amended, after the notes have become outlawed as stock notes, by inserting therein an additional claim, and count upon them for the whole amount thereof, as stock notes given before the organization of the company and as constituting a part of its capital; the effect of which amendment would be to cut off the defence of the statute of limitations: ld.

Nor will an amendment be granted by which a note liable to be assessed only for losses in one class of hazards, is permitted to be sued on as a stock note, and made liable for all losses: Id.

Justices' Courts-Time for rendering Judgment-Waiver of Statutory Limitation.-The limitation of time in the statute directing that justices of the peace shall render judgment and enter the same in their dockets, within four days after the submission of the cause, was intended for the convenience of the parties, and the protection of their rights; and a compliance with the statute may be waived by them: Barnes vs. Badger.

When any act is deferred beyond the time limited in the Justices Act, by the consent of the parties, it is no error that the act is done after the time specified in the act, if done within the agreed time: Id.

Where parties submit their cause to the justice, and stipulate with each other that the justice may take five days instead of four to render judgment, it seems they will be estopped from ever alleging in a court of justice, as a ground of error, that the judgment was rendered on the fifth instead of the fourth day: Id.

Possession of Wild Lands-Trespass-Doctrine of Relation.-One whose right to wild and uncultivated land purchased at a comptroller's sale for taxes, has become absolute, who is entitled to a deed from the comptroller, and who has all the actual possession that it is usual to take of that species of lands, may, it seems, maintain an action against a

stranger for carrying away logs therefrom. He may, at least, by virtue of such possession, defend his title to the logs, or defeat an action brought against him by the trespasser for their value: Pierce vs. Hall.

The doctrine of relation being a fiction of law, is to be resorted to only for the advancement of justice; and has not been adopted as a rule when third persons, who are not parties, or privies, might be prejudiced thereby: Id.

Whether a comptroller's deed of land sold for taxes, vests the title in the purchaser, by relation back to the time when the sale became absolute, so as to entitle him as against a trespasser to repossess himself of any property tortiously severed from the freehold? Quære: Id.

Justices of the Peace-Jurisdiction.-If a justice of the peace enters upon the trial of a cause before the hour at which the summons is returnable, the judgment will be void for want of jurisdiction, and will constitute no bar to a second action for the same cause: Sagendorph vs. Shult.

The day and hour fixed in the summons for its return, is the period when the justice takes jurisdiction of the action, and not the time when he issues the summons. The authority exercised by him previous to that stage of the cause, in issuing the summons, is merely ministerial: Id.

Married Women-Power to charge Separate Estate.-A married woman, having a separate estate in lands, but not in the rents and profits thereof, not conducting any business on her own account, cannot change such separate estate by a parol promise to pay the debt of her husband, where her separate estate has received no benefit on account of the contracting of the debt, and will not be benefited by the payment of it: Ledlie vs. Vrooman.

Action for Divorce-Pleading-Connivance of Plaintiff-Facts to be found by Referee.-Proof of adultery alone is not sufficient to authorize a judgment of divorce. It must be averred in the complaint, that the adultery charged was committed without the consent, connivance, privity, or procurement of the plaintiff; and the complaint must be verified by the oath of the plaintiff: Myers vs. Myers.

Where the plaintiff in his complaint alleged that five years had not elapsed "since he discovered the fact that such adultery had been committed by the defendant, without his consent, connivance, or procure

ment:" Held, that this averment was not a compliance with the above rule: Id.

Upon a reference in an action for a divorce, it is the duty of the referee to find not only as to the fact of adultery, but also as to all other material facts, such as connivance of the plaintiff, &c.: Id.

SUPREME COURT OF MASSACHUSETTS.1

Railroad Company-Injury to Passenger-Negligence of PlaintiffIf, in an action brought by a passenger in a railroad car against the railroad company to recover damages for a personal injury from the swinging of an unfastened door of another car standing upon a track parallel to that over which he is riding, it appears from the plaintiff's own testimony that his elbow extended through the open window, beyond the place where the sash would have been if the window had been shut, it is the duty of the court to rule that this is such carelessness as will prevent a recovery of damages by him, and to withdraw the case from the jury: Todd vs. Old Colony and Fall River Railroad Co.

Arbitrators-Interest to disqualify-Presumption of Regularity of Proceedings.-Stockholders in a bank which holds shares of a railroad company pledged to it as collateral security by a person in good credit and fair standing are not disqualified by reason of interest from acting as arbitrators in a case in which the railroad company is a party: Leominster vs. Fitchburg and Worcester Railroad Co.

If an award of arbitrators states that they after due notice met the several parties and their counsel, and heard their several pleas and allegations, the legal presumption is that they also heard all the legal proofs offered by either party, unless the contrary appears, although it is not explicitly stated in the award: Id.

Collateral Security-Sale for less than its Value.-A creditor who holds a note secured by mortgage as collateral security for his debt has no right to sell such security for less than its value, knowing that the purchaser buys it with intent to cancel it: Fletcher vs. Dickinson.

Mechanic's Lien-Waiver by Acceptance of Promissory Note.-A mechanic's lien is waived, if, before any money becomes due to him under the contract, he accept on account thereof the negotiable promissory notes

1 From Charles Allen, Esq., to appear in Volume VI. of his Reports.