damages, and that the plaintiff was entitled to interest on his verdict. Held, that the decision of the court in holding as matter of law that the fence, as represented by defendant to plaintiff, as covered by the patent, was not covered by it, was erroneous. It was a question for the jury that the value of the patent depended so much on different things, and varied so greatly in different localities, owing to the difference in price of materials; that the instruction by the court to the jury for arriving at damages could hardly operate otherwise than unjustly, and was erroneous. That, if the court had instructed the jury that they might allow interest on the verdict by way of punishment for the fraud, it would have been correct; but not having done so, and the plaintiff's verdict being for unliquidated damages, the instruction that plaintiff was entitled to interest was erroneous. Verdict set aside and new trial ordered. Douglass v. Pratt. SHERIFF. Liability for acts of deputy, after expiration of term of office. This action was brought to recover money collected by defendant as under-sheriff of Monroe county on two executions. Chapman was sheriff of Monroe county when the proceedings under which the executious were issued were commenced. Chapman's term of office expired December 31, 1867, and he died the following October. Defendant collected the amount due on the executions after the expiration of Chapman's term as part of his (Chapman's) unfinished business. Held, that section 72 of Statutes at Large, 352, was intended to apply to a vacancy in the office of sheriff occurring while the term for which he was elected or appointed was running, and does not apply to a vacancy occurring in the office of one whose term has expired and to whom a successor has been duly elected or appointed, and has duly qualified. That the power of an under-sheriff is not terminated by the death of the sheriff. That upon the death of a late sheriff, after the election and qualification of his successor, section 72 applies, and the under-sheriff has vested in him the powers of the late sheriff, as to all business in the hands of either unfinished. That the late sheriff must be deemed to be in office, and the relation of principal and agent still existing, and therefore the undersheriff cannot be sued for misfeasance or nonfeasance in office. The action must be brought against the principal and his bail. Judgment reversed. Newman v. Beckwith. STREETS. Duty of city to repair. — This action was brought to recover damages sustained by plaintiff by falling through a defective cross-walk in the city of Lockport. The referee before whom the action was tried dismissed plaintiff's complaint, on the ground that it being discretionary with the common council to direct the repairs of cross-walks in said city, it is not liable because of the neglect or refusal to exercise such discretion. Held, that the following work is the only work, under the charter, that is discretionary with the common council, viz.: When a new street is to be put in condition, when a new side or cross-walk is to be laid, a street paved or a sewer or drain made, and the manner of doing such work, and also whether any, and if any, what part of the expense of a local improvement shall be borne by the city, and how much by the property owners. Held, that a cross-walk is a part of the street itself; that common council had power to make and repair cross-walks, under the general power to make and repair streets, and that the common council, having had notice of the defect in the cross-walk in question, was bound to repair it. When a public body is clothed with the power to do an act which public interest requires to be done, and the means of performance are placed at its disposal, the execution of the power may be insisted upon as a duty, notwithstanding the statute empowering it is only permissive. Held, that the common council, having power to make local assessments for all street work, grading, removing, etc., it is no defense that there was no money in the highway fund of said city. Judgment of the referee reversed. Hines v. The City of Lockport. COURT OF APPEALS ABSTRACT. 1. Finding of referee: presumption.—An exception to the finding of fact by a referee, to be available in this court, must show that the finding is wholly unsupported by proof. Cox v. James. Opinion by Grover, J. 2. The giving of a joint warranty deed of land by a man and wife, is evidence that they claim it in common, and their possession will sustain a finding that they were so seized. There is no more presumption that the wife, by joining with her husband, merely intends to extinguish her right of dower, than that the husband intends to extinguish his interest as tenant by the curtesy. Ib. 1. In collision between public conveyances owned by different parties: discontinuance of suit against two wrong-doers: practice. The plaintiff was injured by a collision between the street car of the defendant in which she was riding as passenger, and a car of the Harlem R. R. Co., at a point where the defendant's road crossed the other. Suit to recover for the injury was originally commenced against both the plaintiff and the Harlem R. R. Co., but, upon the payment of $100 by the Harlem Co. to plaintiff's attorney, it was discontinued, he paying costs of that suit to defendant's attorney, after which this action was brought. Held, that if the injury was caused by the concurrent negligence of the defendant and the Harlem R. R. Co., plaintiff had a right to bring her action against both or either of the companies. Barnett v. Third Ave. R. R. Opinion by Allen, J. 2. Although the rule is that a party receiving an injury from the wrongful acts of others is entitled to but one satisfaction, and that an accord and satisfaction by, or a release or other discharge by, the voluntary act of the party injured, of one of two or more joint tort feasors, is a discharge of all, the discontinuance of an action against those jointly liable by the attorney of the injured party is not such a release, and is no bar to a new action against either, even though such attorney receives a certain suu for costs from one of the parties against which the action is brought. Ib. 3. Such discontinuance and new action is within the limits of the authority of an attorney, but he has no power to conclude his client in relation to the subjectmatter of the action without such client's consent. Ib. 4. Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial, upon the ground of newly discovered evidence, are not governed by any well-defined rules, but are addressed to the discretion of the court, and this discretion is not reviewable. Ib. See Contracts, 2. PRACTICE. 1. General denial or denial of part of issues entitles defendant to trial: specific denial, when not required: frivolous answer.-When the general issue under the former practice was, and a general denial under the present practice is, interposed as a defense, the party had and has a right to a trial by jury, which is secured to him by the constitution. Thompson v. Erie R. R. Co. Opinion by Folger, J. 2. Where only a portion of the allegations of a complaint are denied, the answer is as fully a general denial to those allegations as is an answer denying the whole complaint a general denial of all its allegations. Ib. 3. And the defendant has a constitutional right to require that this denial be overcome by the same kind of proof as is required to overcome a general denial that is common-law proof. Ib. 4. Whether the complaint sets up a claim formerly cognizable by a court of law, or entertained only in a court of equity, the answer follows the same form; a general denial is the same in either case; the same rules of practice must apply to it, and a general denial by the defendant will require of the plaintiff a trial and proof of his demand, by the production of witnesses before the proper tribunal. In neither case can affidavits taken, ex parte out of court, determine the issue. Ib. 5. The general denial of an answer has as wide a scope as the allegation of the complaint which it denies, and if the plaintiff frames the allegations of his complaint so broadly that a general denial of it may leave specifically undenied some part of the matter comprised in the whole of his allegation, he cannot take from the defendant his right of a general denial, and require him to specifically deny each part of the whole which the complaint has alleged. Ib. 6. Where a first answer has been erroneously stricken out as sham, a second answer cannot be stricken out as frivolous. The first answer, remaining as part of the record, forbids the striking out of the second, though it may be so frivolous standing alone as to entitle the plaintiff to judgment upon. Ib. 7. Failure to file return in time. -Relief will not be granted upon a motion to vacate an order dismissing an appeal for the non-filing return to the appeal within the prescribed time, if the appeal is without merits, and the party will not be benefited by its restoration. Supt. of Poor v. Bostwick. Opinion by Allen, J. 8. Effect of setting aside order of arrest prima facie valid: habeas corpus.-The plaintiff applied for a reargument in order to ask that an order vacating and setting aside an order of arrest be modified so as to require the defendant, as a condition for such order, to stipulate not to sue plaintiff for false imprisonment, or for any proceedings under the order of arrest or the execution against the person issued upon the judgment. Held, that such a stipulation was not necessary for the protection of the plaintiff, the original order having been set aside, not as void or one improperly granted, but because the defendant had explained and answered the prima facie case of the plaintiff. The order was vacated upon motion on its merits, and not for irregularity. Elwood v. Gardner. Opinion by Allen, J. 9. If the order had become void or inoperative for any reason, so as not to authorize the longer detention of the defendant under it, or an execution against the person, no motion would have been necessary. A writ of habeas corpus would have been the proper remedy. Ib. 10. Equitable power of supreme court as to fraudulently obtained instruments.-The defendants, each claiming to own a certain instrument made by plaintiff, brought separate actions against him thereupon. The plaintiff then commenced this action against both defendants to compel a delivery and cancellation of the instrument, on the ground that his signature to the same had been procured by false and fraudulent representations. Held, that it was within the power of the court of equity, in its sound discretion, to compel the cancellation of a written instrument obtained by fraud. McHenry v. Hazzard et al. Opinion by Andrews, J. 11. That the court is not precluded from exercising such right, even though such fraud would be a good defense to an action at law. The person claiming equitable relief is not bound to await the commencement of an action on the contract. Ib. 12. While the code requires causes of action, legal and equitable, growing out of the same transaction, to be united in a single suit, yet where suits have been commenced by parties severally against an individual, claiming of him the performance of the same alleged debt or duty, based upon the same contract, but claiming title in hostility to each other, which debt or duty is denied by the defendant, it is no bar to the bringing of an equity action for the cancellation of the contract in question on the ground of fraud. Ib. See Arbitration and Award; Negligence, 3; Deeds. No recovery on, without actual damage. The plaintiff had delivered to the defendants goods, subject to a lien for freight charges in favor of C., from whom plaintiff had received them, without collecting such charges, upon receiving from the defendants a bond, conditioned to indemnify the plaintiff "against any legal liability which he may have incurred" by so doing. Judgment was recovered by C. against the plaintiff for the amount of such charges and cost, but it did not appear that it had been paid. In an action upon the bond, held, that the plaintiff could not recover, *From 2 American Reports. as there was no proof of actual damage. Weller v. Eames (Minn.), 150. CARRIERS. 1. Liability for baggage received for transportation. — The plaintiff was a passenger on defendants' road, but had lost her trunk while traveling over a connecting road. A few days after a conductor on the connecting road found the trunk, and left it in charge of the defendants' baggage master, stating the facts, and requesting him to forward it to plaintiff, which he agreed to do. Nothing was said about freight, nor whether the trunk should go by the freight or passenger train. The trunk being lost, held, that the defendants were liable for its value. Wilson v. Grand Trunk Railway (Me.), 26. 2. Duty to carry all freight without preference. -The defendants contracted with the Eastern Express Company to give the latter a certain share in the baggage and mail car attached to passenger trains for the carriage of their goods, and agreed not to let any similar space in any car attached to passenger trains to any other persons or express carriers during the continuance of the contract. Plaintiffs, another express company, offered packages to be transported on defendants' passenger trains, which the defendants refused to receive or transport. Held, that defendants were liable to plaintiffs for such refusal. New England Express Co. v. Maine Central R. R. Co. (Me.), 31. 2. Liability of, for willful misconduct of servants: measure of damage. The plaintiff, a passenger in defendants' railway car, gave up his ticket to a brakeman, who was authorized to demand and receive it. Shortly after the latter approached plaintiff, denied that he had received his ticket, and assaulted and grossly insulted him. In an action against the railway company to recover damages, held, that the defendants were liable, and that plaintiff could recover exemplary damages. (Tapley, J., dissented on the question of dainages.) Goddard v. Grand Trunk Railway Co. (Me.), 39. 3. The defendants having retained the brakeman in their employ after notice of his conduct, the court refused to set aside as excessive a verdict for $4,850. Ib. 4. Express companies: liability of.-The defendants were an express company, engaged in transmitting from place to place goods for hire, having at different points local agents whose duty it was to receive goods transmitted and deliver the same to the consignee, as well as to receive goods for transmission, having no vehicles or other means of transportation except at their local offices for local purposes, but transmitting goods, in charge of their messengers, by steamboats, railroads, coaches, etc., owned and controlled by other parties. Plaintiff's agent delivered to them goods for transportation, taking a receipt, in which it was stipulated that the defendants were not to be held liable for any loss or damage except as forwarders only, nor for perils of navigation and transportation. The steamboat on which the goods were being transported, in consequence of the negligence of those in charge, ran upon a snag and was sunk, thereby injuring the goods. In an action to recover the damage, held, that the defendants were common carriers, not forwarders, and, as such, liable for the loss, notwithstanding the terms of the receipt, which could not cover losses arising from negligence. Christenson v. The American Express Co. (Minn.), 122. is only liable to the extent of his route, and for safe storage and delivery to the next carrier, yet if he store the goods in his own warehouse at the end of his line, without delivery or notice, or attempt to deliver to the next carrier, his liability as a carrier will continue. Lawrence v. The Winona and St. Peter's R. R. Co. (Minn.), 130. 6. The defendants common carriers-received for transportation from a connecting carrier, goods marked for M., a point beyond their line. On the arrival of the goods at W., the terminus of defendants' line, they were stored in their warehouse, where they were destroyed by fire. Some time previously the defendants, for the purpose of increasing the business of their road by drawing off the freight for M., from another road to M., connecting with their road at an intermediate point, had agreed with P., another carrier, that they would deliver to him all freight consigned to M., provided he would convey it regularly and at certain rates from W. to M., and, in pursuance of this agreement, it was their custom to store all such freight in their warehouse until a load accumulated, when P. would send a team and take it. The plaintiffs' goods were so stored at the time of their destruction; but no notice thereof was given to P. nor to the consignee. In an action to recover the value of the goods, held, that the defendants were liable as common carriers. Ib. CONSTITUTIONAL LAW. 1. Taxation: exemption from by statute, not in nature of contract. The legislature passed an act exempting from taxation all property used for the purpose of manufacturing salt, and offering a bounty of ten cents a bushel for salt manufactured in the State. Two years later the said act was amended by limiting the exemption from taxation to five years. The five years having elapsed, the complainant, a corporation for the manufacture of salt, organized after the passage of the original act, filed a bill to restrain the collection of a tax upon their property, on the ground that the exemption from taxation was in the nature of a contract between the State and the parties acting under it, and therefore protected by the United States constitution. Held, that the act was not in the nature of a contract, and could be amended or repealed at any time. East Saginaw Manufacturing Co. v. City of East Saginaw (Mich.), 82. 2. Act compensating owners of sheep killed by dogs. — A statute provided that any person suffering loss by reason of the maiming, killing or worrying of his sheep by dogs may present proof of the nature and extent of his damages to the selectmen of the town, who shall draw an order for the amount in his favor upon the treasurer of the town, and thereupon the town may recover of the owner of the dog the full amount of such order. Held, to be unconstitutional, in so far as it undertook to bind the owner of the dog by the decision of the selectmen fixing the amount of the damage without giving him an opportunity to be heard on the question. Held, further, that the town could nevertheless recover, under the statute, from the owner of the dog the actual damage which the jury who try the cause find the owner of the sheep to have suffered, not exceeding the amount of the order drawn by the selectmen. East Kingston v. Towle (N. H.), 174. 3. Evidence tending to prove that the dog had killed or worried sheep before is inadmissible in such action. Ib. CONTRACT. 1. When void for mental unsoundness of party to.A. having a life estate in certain lands, and owning stock thereon, conveyed the same to defendant on condition that he should support her for life, which he did. After her death her executor brought action to recover for use and occupation of the lands and for value of the property, alleging that the conveyance was void, A. being mentally imbecile at the time it was made. Held, that the plaintiff could not recover in the absence of bad faith or fraud on the part of the defendant. Young v. Stevens (N. H.), 202. 2. Entirety: not to be performed within a year: statute of frauds. On the 1st of January plaintiff made a parol contract with defendant to sell him all the wood upon a certain lot, at five dollars a cord, and to deliver as much thereof as he could that winter, and the balance the winter and year following, the defendant to pay on demand for amount delivered at the close of each winter's delivery. Plaintiff delivered a portion of the wood that winter, which was accepted and paid for; the remainder he delivered the winter and spring following, but defendant refused to accept or pay for it. Held, that the contract was entire; that the delivery and acceptance of the first part took the case out of the statute of frauds; and that it was not a contract which was not to be performed within one year from the making of it, within the meaning of the statute. Gault v. Broum (N. H.), 210. CRIMINAL LAW. Sentence: power of court to revise. - Where a prisoner has been convicted and sentenced, and duly committed in pursuance of the sentence, the power of the court to revise or change the sentence is at an end. Brown v. Rice (Me.), 11. ELECTION. 1. Certificate of, prima facie evidence: mandamus. The relator received from the proper officer a certificate of his election to the office of district clerk of M. county; he subsequently took the oath, gave and filed the bond required by law, and then demanded of the respondent-the former clerk, whose term of office had expired, and who was in possession-the seal, records, books, papers, etc., belonging to said office. The respondent answered that the relator, being a nonresident of the State, was ineligible to the office, and therefore not legally elected. Held, that the relator was entitled to a mandamus. State v. Sherwood (Minn.), 116. 2. A certificate of election is prima facie evidence of title, and the court will not go behind it in proceedings for a mandamus. Ib. EVIDENCE. Evidence of parol contemporaneous agreement to revoke written instrument inadmissible.-In an action for goods sold and delivered, the plaintiff gave in evidence a written order for the goods, signed by the defendant, and proved that they were delivered according to the terms of such order. The defendant thereupon offered to prove that at the time said order was made, as an inducement thereto, plaintiff verbally agreed with defendant that the latter might revoke the order during the summer and not take the goods, and that during the summer, and before the delivery of the goods, he did revoke said order. Held, that such offer was properly rejected. Wemple v. Knopf (Minn.), 147. FIRE INSURANCE. Condition in policy: non-payment of premium note.A policy, the premium for which had been paid by note, contained a provision that, in case the note should not be paid at maturity, the full amount of the premium should be considered as earned, and the policy become void while said past due notes remained overdue and unpaid; a loss occurred after the maturity of the note and before it was paid. Held, that the company was not liable for any loss which occurred during the continuance of the default, but that, on the subsequent payment of the note, the policy revived and was in force from the date of such payment. Williams v. The Albany City Ins. Co. (Mich.), 95. FOREIGN LAWS. 1. Contracts tending to violate laws of foreign country: proof of foreign laws. - Plaintiff and defendant, in pursuance of an agreement to that effect, went to Canada in 1864 for the purpose of procuring men to be enlisted in the United States army, and, before going, and also while there, plaintiff loaned to defendant money to pay his expenses. In an action to recover such money, held, that the contract, having for its object the violation of a law of Canada, was void, and that the plaintiff could not recover. Hall v. Costello (N. H.), 207. 2. In proof of the laws of a foreign country, the testimony of any person, whether a professed lawyer or not, who appears to the court to be well informed on this point, is competent. Ib. 3. Presumption as to.- In the absence of evidence the presumption is that the laws of another State conform in substance to the general principles of the common law. Ellis v. Maxson (Mich.), 81. HIGHWAY. Notice of defect in.- In an action against a town to recover for injuries caused by a defect in a highway, the question whether notice to the town of the existence of the defect can be inferred from the length of time it has continued is a question for the jury. Colley v. Inhabitants of Westbrook (Me.), 30. (To be continued.) DECISIONS OF THE COURT OF APPEALS. The following decisions of the court of appeals were handed down on the 5th inst: Judgments affirmed with costs-Florence v. Hopkins and another; Higgins v. The Watervliet Turnpike Co.; Lowry and ano. v. Inman; The Ocean National Bank v. Olcott and ano.; Holden v. The Putnam Fire Insurance Co.; Duffy v. O'Donevan et al.; Hough et al. v. The American Baptist Mission Union; Richardson v. The N. Y. Central Railroad Co.; Ross v. Ackerman, impleaded, etc.; Hoffman v. Hoffman; Crocker v. Colwell, impleaded, etc.; People ex rel. Dunkirk and Fredonia Railroad Co. v. Cassity, etc., as assessors, etc. Judgments affirmed without costs-Lanel v. Van Wagener; Lanel v. Van Wagener. Judgments reversed, new trial granted, costs to abide event-Drew v. Swift; Hall v. Lauderdale; Grant, survivor, etc., v. Smith; Hart v. Messenger and o'rs; Hamilton and ano. v. Douglass; Madison Avenue Baptist Church v. The Baptist Church in Oliver street; Etna National Bank of New York v. The Fourth National Bank. Judgment of general term reversed, and that of special term affirmed with costs-The National Park Bank of New York v. The Ninth National Bank of New York. Orders of the general term and special term of the supreme court reversed, and assessments vacated with costs-In re petition of George W. Douglass to vacate assessments in 64th street. In the matter of the application of the Episcopal Public School to vacate assessments-Orders of superior court at general and special terms and of the county judge, reversed and application denied with costs. People ex rel. White v. Hulbert, County Judge, etc. Order affirmed with costs-In the matter of Eagar to vacate assessments, etc. Order of general term of superior court affirmed with costs-People ex rel. Perkins v. Hawkins, supervisor, etc. Order granting new trial affirmed, and judgment absolute for the defendant, with costs pursuant to stipulation-Bank of Albion v. Burns and another. Judgment affirmed with costs as to Leonard-Dixon v. Palmer, and judgment of superior court reversed and judgment on report of referee affirmed against Stephens with costs, deducting $130.08 from the original. Judgment to correct error of referee in computation.Dabeny et al. v. Stephens and ano., impleaded, etc. Judgment affirmed with costs to respondent, to be paid by the plaintiff from the estate of the testator. White and ano., ex'rs, etc., v. American Colonization Society, impleaded; White and ano., ex'rs, etc., v. Trustees of the Board of Domestic Missions; White and ano., ex'rs, v. American Tract Society, impleaded, etc. Judgment reversed, new trial granted, cost to abide event, unless the defendant within thirty days after notice of this judgment consents to the entry of a judgment against him for $6,453.67, with costs in the court below and in this court, and in that event the judgment thus modified, affirmed-Currie and ano. v White. Judgment of general term reversed, and that on report of referee affirmed with costs-Childs v. Smith. Judgment reversed and judgment for the people, adjudging that the relator was not duly elected to the office, and that the act of the legislature extending the term of office of the defendant was unconstitutional and void, and that neither the relator nor defendant were entitled to the office, without costs to either party against the other- People ex. rel. Fowler and o'rs. v. Bull. CORRESPONDENCE. DISTRIBUTION OF A WIFE'S PERSONAL ESTATE. Editor of Law Journal: The only authority for this expression I was able to find was in Chitty's Blackstone, vol. I, page 435, in which this language is used: "And the right of the husband not only to administer, but also to enjoy exclusively, the effects of his deceased wife depends still on this doctrine of the common law, the statute of frauds declaring only that the statute of distributions does not extend to this case. But now these contro versies are quite at an end, for, by the statute 22 and 23 Car. II, c. 10, explained by 29 Car. II, c. 30, it is enacted that the surplusage of intestates estates (except of femes covert, which are left as at common law) shall,” etc. I am unable to see what the statute of frauds had to do with the question. Bacon, in his abridgement edition, 1793, vol. I, page 289, uses the following language: "But choses in action, as debt due to the wife by obligation, etc., which are to be demanded by action, though they are likewise so far vested in the husband that he may reduce them into possession; yet, if he dies before any alteration made by him, they shall go to his wife, nor shall they, without such alteration, survive to the husband upon the death of the wife, or he have any right to them, but as he is entitled as administrator to his wife." He then refers in a note to 1 Rob. Abr. 910, and the statute of Charles, etc. The twenty-ninth section of the act referred to in my former letter, and which is unrepealed by the act of 1867, is: "A husband, as such, if otherwise competent according to law, shall be solely entitled to administration on the estate of his wife, and shall give bond as other persons, but shall be liable, as administrator, for the debts of his wife only to the extent of the assets received by him. If he shall not take out letters of administration on her estate, he shall be presumed to have assets in his hands sufficient to satisfy her debts, and shall be liable therefor; and if he shall die leaving any assets of his wife unadministered, they shall pass to his executors or administrators as part of his personal estate, but shall be liable for her debts to her creditors, in preference to the creditors of the husband." In 1853 an act was passed exempting the husband from liability for his wife's debts, except so far as he had assets from her, but that does not affect the question. The decision of the general term reversing the decree of the surrogate in the case referred to involves the absurdity of giving the wife's property to the administrator of the husband, in case of his death; while it excludes him, if living, from any enjoyment thereof. Yours respectfully, J. G. COLLINS. THE ALABAMA CLAIMS. The following circular has been issued from the State department: } "DEPARTMENT OF STATE, "WASHINGTON, August, 1871. "Claimants who have not already filed in the department of State their claims against Great Britain, growing out of the acts committed by the several vessels which have given rise to the claims generally known as the Alabama claims, are requested to do so without delay, in order that they may be taken into account in presenting the aggregate claims of the United States to be brought before the tribunal of arbitration which is to meet in Geneva in the month of December next. It will not be necessary for claimants who have already filed their claims, sustained by proofs, to take any steps under this notice, unless they may have additional proof to file. No papers already filed can be withdrawn. Claimants must prepare for themselves the proof of their claims. This department will, on application, forward to claimants a copy of the treaty and a circular showing the form of proof that is advised by the department in the absence of all rules by the tribunal which will pass on the same. The early atten |