ment does not invalidate the risk. Audubon v. Excelsior Insurance Co., 27 N. Y. 216; Trustees v. Brooklyn Fire Insurance Co., 19 N. Y. 305; Flint v. Ohio Insurance Co., 8 Ohio, 501; Kelly v. The Com. Ins. Co., 10 Bosw. 82; Baxter v. Massasoit Ins. Co., 13 Allen, 320.

And in case of an oral agreement preliminary to a written policy, the obligation of the agreement continues until a valid and binding policy is either tendered or delivered. Kelly v. The Com. Ins. Co., supra; Com. Ins. Co. v. Hallock, 3 Dutch. (N. J.) 645.

CURRENT TOPICS.

The legislation of modern times has a strong bias in favor of individual freedom, and this, no matter what the form of government may be. In the middle of the last century every principal nation recognized the legitimacy of human bondage, while to-day it is forbidden in almost every christian country, and, where allowed, is placed under regulations looking toward its ultimate extinction. During the last decade it was wholly abolished in Russia and the United States. The latest important movement in the matter has occurred in the empire of Brazil, where, by a bill which received the imperial sanction on the 28th of September, all children thereafter born of slave women are declared to be free persons. Some years, indeed, are required under this law to totally eradicate slavery, but its growth is checked, and it will hardly be known in that country at the beginning of the next century. Whatever may be the moral character of this institution, we believe every one who has the material welfare of the human race at heart will rejoice that the rulers of Brazil have seen fit to yield to the sentiment of the age, and declare in favor of emancipation.

While Brazil is acquiescing in one phase of modern civilization, Japan goes back upon her ancient customs and adopts another, which is nothing else but the institution of hanging. Instead of the barbarous old method of cutting off the malefactor's head with a sharp sword, strangulation with a rope is mercifully employed as a means of killing. The new plan is said to be immensely popular, as it affords an attractive moral spectacle, besides being much more cleanly

than the old.

Mr. Justice Barnard has discharged certain of the prisoners confined in Ludlow street jail, twenty-one in number, and has intimated that action will be

taken with reference to witnesses confined there awaiting the trial of persons who are at large on bail. While we do not think that imprisonment for debt, where the liability did not arise from contract, should be abolished, we are not in favor of detaining persons who are unfortunate enough to be aware of facts which are necessary to convict some one suspected of rime. It has for many years been a custom in New

York city to imprison a witness and let the individual against whom he might appear go free on bail. The consequence has been that very many persons who would have readily assisted in ferreting out and convicting offenders have been deterred from so doing by fear of detention in the Ludlow street jail. No doubt this has had something to do with the increase of crime, and the difficulty of its detection in the metropolis. There is an old proverb that "it is better that ninety-nine guilty go free than one innocent suffer." But, where the guilty go free, and the innocent suffer for their acts, the worst injustice is done. The practice, in this respect, which has for a long time prevailed in New York, ought to be looked into, not only by the courts but by the legislature. The courts have made a beginning; will the other branch of our government follow their lead?

Among the causes for arrest in a civil action is a breach of promise to marry. Why this alone, among all contracts, should be selected, we cannot conceive, unless it be for the purpose of showing that woman is inferior to man, and should not be granted the inestimable privilege of lying in jail, because she cannot pay her debts. It is very generally supposed that imprisonment for simple debt is a thing of the past in this State, but it is certain that the worst form remains, if it is allowed against one party to a mutual contract and not against the other. In the celebrated action against Mr. Pickwick, where that gentleman was found guilty of trifling with the affections of his landlady, and was incarcerated in a debtor's prison because he declined to pay the sum awarded her by a compassionate jury, the reader is gratified by knowing that a sort of retributive justice was visited upon the plaintiff, who was soon after cast into prison in consequence of not liquidating her attorney's bill. But the speculative female is in no danger of a like result in this country. Our humane laws provide her at the same time with a sword and shield. They give her power, in case of success, to enforce collection, by seizure of defendant's property, and, if that fails to satisfy, of his person. But, if her cause of action is so weak as to be repudiated by a jury prejudiced in her favor, the defendant has no redress for the annoyance and expense she has brought upon him. He gets a judgment for costs, to be sure, but as the plaintiff is uniformly without property, it is worthless. We trust that future legislation will make the sexes equal in this respect, not by increasing, but by diminishing, the causes of arrest

"I regret to find myself, your honor, unable to please the court this morning."

"Brother Otis," replied the judge, with a pleasant smile, "you always please the court when you are right."

There is a nice little story which illustrates the truth of the saying that "where there is a will there is a way."

It occurred in China-the transaction to which we refer. It seems that a Chinaman died, as Chinamen are sometimes in the habit of doing. (Any one who ever has been in the Coolie importation business need not be enlightened upon this point.) Having three sons, he left them his property by a will duly executed and published according to the regular form of pigtail law.

The eldest son was Fum Hum, and if his father had not given him the loveliest name in the world, he certainly treated him handsomely in the will, for Fum was to have half the entire property. Nu Pin, his second, received one-third thereof, and Ding Bat, his youngest son, one-ninth thereof. When the property was inventoried, it was found to consist of nothing more or less than seventeen elephants, and it puzzled the heirs how to divide the property according to the terms of the will without chopping up the seventeen elephants, and thereby seriously impairing their value. Finally they applied to a wise neighbor, Sum Punk, for advice. Sum Punk had an elephant of his own. He drove it into the yard with the seventeen, and said: "Now we will suppose that your father left these eighteen elephants. Fum Hum, take your half and depart." So Fum Hum took his nine elephants and went his way. "Now, Nu Pin," said the wise man, "take your third and git." So Nu Pin took six elephants and traveled. "Now, Ding Bat," said the wise man, "take your ninth and begone." So Ding Bat took two elephants and trotted off, then Sum Punk took his own elephant and drove home again. Query: Was the property divided according to the terms of the will?

This is undoubtedly a case of novel impression. Neither Jarman nor Redfield say any thing about the "distribution of elephants." Barnum, it will be remembered, once proposed to shoot "his half" of a joint-stock elephant. On the whole, we rather like Sum Punk on this subject. He is equal to Wigram.

GENERAL TERM ABSTRACT.
FOURTH DEPARTMENT.-SEPTEMBER TERM.

WILL; FUTURE ESTATE BY DEVISE. The testator, Cyrus Tracy, died, leaving a will as follows: "I hereby give and bequeath to my wife, Esther Tracy, all my real estate and all my personal property of whatsoever kind and description belonging to me, of every name, she to have the full use of the same to her own benefit until my youngest child, David Cyrus Tracy, shall have attained the age of twenty-one years; or, in case he shall not live to that age, until the age of the next youngest child shall reach twenty-one years, at which time I desire my property shall be equally divided among all my children, my wife, Esther Tracy, retaining one-third of the same, to have and to hold to her, the said Esther Tracy, and to my children, their heirs, executors and administrators, forever."

The widow went into possession of the real estate under the will, and afterward mortgaged all her right and interest in the same to secure a loan of money to her. This mortgage was foreclosed, and the real estate was purchased at the foreclosure sale by the defendants, Ames and Chandler, who leased the same to the defendant, Dalrymple, and afterward contracted to sell to Dalrymple one-third of the entire real estate and their right and title to the whole.

Dalrymple cut and carried away the standing timber from fifteen acres of the land. The testator left three children, who are the plaintiffs in the action. The youngest child had attained the age of twenty-one years before the commencement of the action.

The plaintiffs claim that the absolute power of alienation of the real estate is suspended by the will for a longer period than during the continuance of two lives in being at the creation of the estate, and that the will is void.

The action was trespass, for a wrongful entry upon the premises, cutting and carrying away timber and wrongfully keeping the plaintiffs out of possession.

The action was tried by a referee, who decided that the defendant's possession was lawful, and that trespass could not be maintained. On appeal by the plaintiffs from the judgment to the general term, held, that by the will the absolute power of alienation of the real estate was not suspended for any period; that by the true construction of the will the widow of the testator took an estate in fee in one-third of the realty, and an estate for years in the residue until the youngest child of the testator attained the age of twenty-one years, or, in case of his death, before arriving at that age, until the next youngest should arrive at the age of twenty-one years, and that an estate in fee in remainder vested in each of the three children in two-thirds of the real estate immediately upon the death of the testator, under the will, and that if any action could be maintained by the plaintiffs, it could be for waste only. Judgment affirmed. Tracy et al. v. Ames et al. Opinion by Johnson, J.

DEDICATION-COSTS.

The plaintiffs took title to the locus in quo from the original proprietors of the plot of the village of Niagara Falls, subject to the rights of the public in certain streets, as laid down in a certain map.

The action was for the removal of standing timber and gravel from their lands, and the conversion of the same. The timber and gravel had been removed from that portion of the premises laid down on the map as Niagara street, between Canal street and Water street. Niagara street had been opened and worked as far west as Canal street, and the corporation authorities had ordered it to be opened through to Water street. The timber in question had been cut down and removed in opening the street, and within its boundaries, but the defendants had cut it into cord wood and converted it. The gravel had been taken within the boundaries of the street so opened, and used in repairing other streets on the same plot.

The defendant was the superintendent of streets in said village, whose duty it was to open and repair streets, and justified under the order of the trustees of the village, who had the powers of commissioners of highways.

The action was commenced in a justice's court, where the defendant pleaded title to the lands in the public, as a highway.

The defendant also, in that court, made an offer to the plaintiffs in writing that he would allow a judgment to be taken against him for $20, which offer the plaintiffs refused to accept. The action was thereupon discontinued in the justice's court and commenced in the supreme court, where the same pleadings were put in by the respective parties. No offer of judgment was made by the defendant in the supreme court.

The cause was tried by a referee, who decided that the plaintiffs were entitled to recover for the value of the cord wood which the defendant had converted only, and which he found to be of the value of $17, and that the defendant was entitled to the costs of the action, the recovery being for an amount less than the offer. On appeal by the plaintiffs to the general term, Held,-1. That the defendant had the right to take gravel from that portion of the street dedicated, on opening it, to repair the streets generally on the village plot, and had also the right to cut down the timber necessary for the proper opening of the street and remove the same from the street so opened, but had no right to use it, except for the purpose of putting the street so opened in proper condition for public use as a street; that the timber belonged to the owners of the soil, no part of it being necessary for use in constructing the road.

the note in suit, and was admissible either under the | general denial or under the answer of payment; that under the general denial it may be shown that there is no consideration for the promise, and no cause of action ever accrued upon it, except in the case of actions upon negotiable notes transferred to a bona fide holder for value before due; that under the liberal rule of interpretation of pleadings in justices' courts, the answer of payment might and should have been held to apply to the payment of the debt on which the note was founded. Held, further, that as the case does not show that the note in suit was negotiable, nor when it became due, the law will not presume that it was negotiable, nor that it was transferred to the plaintiff before due. Judgment of county court and of justice reversed. Evans v. Williams. Opinion by Johnson, J.

INCUMBRANCE.

When not fraudulent and void as against judgment creditor. The plaintiff was a judgment creditor of one of the defendants, and brought his action to remove a mortgage which his debtor had given to the other defendant before the judgment, upon his farm, as an obstruction to the lien and enforcement of the plaintiff's judgment against said farm, on the ground alleged in the complaint, that the mortgage was fraudulent and void as against the creditors of the mortgagor, and was without consideration, and given as a fraudulent device on the part of both defendants to hinder, delay and defraud the plaintiff and other creditors of the mortgagor. The defendants denied the complaint. The action was tried by a referee, who found that the mortgage was given in good faith between the parties thereto, but was given by the mortgagor in execution and fulfillment on his part of a

EVIDENCE.

What may be given under general denial, and under plea of payment.-The action was brought in a justice's court by plaintiff, as owner and holder of a promissory note given by the defendant to one W. S. Evans. Defense, general denial and a general allegation of payment. On the trial it appeared, on the part of the plaintiff, that the note in suit was given by the defendant for a balance then claimed to be due by W. S. Evans, on a note then held by him against the defendant's father. The plaintiff was present when the note in suit was given, and knew what the consideration therefor was. He had purchased the note of W. S. Evans nearly six years after it was given, and commenced the action to recover the amount. The defendant, on the trial, by way of defense, offered to prove that, at the time he gave the note in question for his father's note, the latter note had been fully paid by the maker, and nothing remained due thereon.

This evidence was objected to by the plaintiff, on the ground that it was inadmissible under the pleadings, and excluded by the justice. It does not appear from the case whether the note in question was negotiable, nor when it was due and payable. The plaintiff had judgment for the amount of the note and interest before the justice, which was affirmed by the county court.

On appeal to the general term from the judgment of the county court, by the defendant, held, that the evidence offered went to the entire consideration of

which the referee held to be void. The mortgagee was part owner and interested in certain leases o f oil lands in the oil region in Pennsylvania, which he agreed by parol to sell and assign to the mortgagor for the sum named in the mortgage, and in order to carry out the agreement on his part, executed and delivered to the mortgagor an assignment in due form to transfer such interest, except that the name of the mortgagor was not inserted in the assignment as assignee.

The mortgagor accepted the assignment as a fulfillment by the mortgagee of his part of the agreement, and both parties to the transaction treated the interest in oil leases as belonging to the mortgagor, and supposed it had been legally transferred by the assignment. This was before the plaintiff's debt had been created.

The mortgage was executed afterward, but before the plaintiff's judgment to secure the payment of the purchase price of the oil leases. The referee held, as matter of law, that the assignment in that form was inoperative and did not convey any interest in the oil leases, and that the mortgage was without consideration and given upon a parol agreement, which was void by the statute of frauds, and that it was consequently void against the plaintiff. Judgment was ordered, setting aside the mortgage, and requiring the mortgagee to satisfy and discharge the same of record. On appeal to the general term from the judgment by both defendants,

Held, that, upon the facts found by the referee, the action could not be maintained; that, even if the assignment was ineffectual to transfer the interest of the mortgagee in the oil leases to the mortgagor, by