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Hicks, 1 Cow. 513. The decision in Hill v. Bannister, 8 Cow. 31, is not in harmony with these decisions, nor has it been followed in this State. There the defendants gave their note with the addition of "Trustees of Union Religious Society, Phelps," and proved that it was given for a debt due from the society. The court, nevertheless, held the defendants to be personally liable.

or

As a general proposition it is undoubtedly true, that one who signs a writing as "agent," "trustee " "president," is regarded as merely describing himself, and hence is held to be personally liable. Taft v. Brewster, 9 Johns. 334; Stone v. Wood, 7 Cow. 453. But when a writing is thus executed, with full authority from a principal, the party on whose account it is executed is alone liable. Bank of Genesee v. Patchin Bank, 19 N. Y. 315. In this case the several New York decisions are examined and the above principle announced. There, S. B. S., cashier of a bank, sent plaintiff, to be discounted, a bill of exchange, dated ten days previous, payable to the order of S. B. S., Cash., indorsed by him, with the same addition to his signature, and inclosed in a letter, dated at the banking-house, and signed S. B. S., Cash. It was held that these circumstances imported that the indorsement was that of the bank, and not that of S. B. S. individually. So it has been held that an indorsement of a note to the cashier of a moneyed corporation, by adding the word "cashier" to his name in the indorsement, is a transfer to the corporation when that was the design of the transaction. Watervliet Bank v. White, 1 Denio, 608. And so an officer of a corporation to whose order, as such, a note executed to it is payable, and who indorses the note, adding to his name his official character, and negotiates it on behalf of the corporation, is not personally responsible as indorser. Babcock v. Beman, 11 N. Y. 200; see, also, Bank of N. Y. v. Bank of Ohio, 29 id. 619.

The true rule of construction is said by Mr. Justice Story to be "that if it can, upon the whole instrument, be collected, that the true object and intent of the instrument are to bind the principal and not to bind the agent," courts of justice will adopt that construction of it, however informally it may be expressed.

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the money did so in good faith, and without knowledge thereof; (1) so by a stockholder, whose stock has been sold under a forged power of attorney, against the party who holds the proceeds of the sale; (2) by the owner of the draft issued by the government for his bounty or back pay, against one who received it through a forged or unauthorized indorsement; (3) by the owner of a draft against one who, as agent for a party who acquired his title thereto, under a forged indorsement, collected the same without disclosing his agency, and paid over the proceeds of such collection to his principal. (4)

An action will not lie by one claimant of money due under a contract with the government against another, when the same is paid by an officer thereof, to the claimant, with notice of the claims of both, notwithstanding the plaintiff proves himself to have been entitled, as between himself and the defendant, to have received such moneys from the government; (5) and so in all cases where two persons claiming adversely to each other apply for payment to the debtor, and one of them is recognized as the creditor, and paid to the exclusion of the other. (6) The distinction between the latter cases, and those where one receives the money of another through the means of a forged indorsement, is apparent. In the one case, the party receiving the money receives it as his own, claiming under an independent title, and without in any way claiming through the other party; in the case of a forged indorsement, the person receiving the money necessarily does so, admitting that it originally belonged to the payee, and that he is receiving it under or by virtue of his rights. Where one, by mistake, receives plaintiff's wheat, sells it as agent for another, and accounts therefor to his principal, he is, nevertheless, liable to the plaintiff; (7) so, generally, the action lies to recover back money paid by a mistake of fact; as by a subsequent judgment creditor against a prior one to recover moneys paid by the sheriff, with plaintiff's assent, he mistakenly supposing defendant's execution had not expired at the time of making the levy. (8)

The right to the salary or emoluments of an office depends upon the performance of the duties thereof; one who was deprived of the right to perform them by an

(1) 1 Chit. Pl. 352.

(2) Marsh v. Keating, 1 Bing. (N. C.) 198, 27 Eng. C. L. Rep. (3) Holtsinger v. National, etc., 37 How 203, affirmed by Court of Appeals, Feb. 14, 1871; 3 Alb. Law Jour. 305.

(4) Holt v. Ross, 4 All. Law Jour. 11; Canal Bank v. Bank of Albany, 1 Hill, 287; Schaffer v. McKee, 19 Ohio St. 526. (5) Butterworth v. Gould, 41 N. Y. 450.

(6) Patrick v. Metcalf, 37 N. Y. 331; Murphy v. Ball, 38 Barb. 202.

(7) Cobb v. Dows, 10 N. Y. 335.

(8) Kingston Bank v. Eltinge, 40 N. Y. 391. This case, and Butterworth v. Gould, supra, are apparently, but not really, we think, in conflict. In Butterworth v. Gould the creditor's remedy against the debtor remained unaffected by the payment. In Kingston Bank v. Eltinge, although defendant claimed the money as his own under an independent title, the plaintiff's assent to the sheriff paying the money to defendant precluded him from maintaining an action against the sheriff to recover what was really his own, and what should have been paid to him. In one case the debtor decided for himself, and at his peril, who was the creditor; in the other the creditors themselves decided it for him, but did so under a mistake of facts, which, as between themselves, rendered the consent legally invalid, and which left the money subject to the plaintiff's equitable rights thereto.

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officer de facto cannot maintain an action against the government for the salary, on the ground that the payment thereof to the de facto incumbent was wrongful (1) It has been repeatedly held, that an officer de jure may maintain an action against a de facto incumbent receiving the salary or emoluments of an office; (2) but this, under the recent cases, may be doubted, unless the courts, to accomplish an act of seeming justice, are able to make a distinction more subtle than now occurs to us between such a case and that of an ordinary creditor of the government, who receives payment of a demand under an independent claim of right thereto. If it be said that an officer de jure may practically be deprived of the emoluments of an office, the answer is, that he has no legal claim thereto, except where he acquires it by a discharge of the duties thereof. (3) An agent who receives the note of a debtor to his principal, and sells the same for less than its face, is liable to his principal, in an action for money had and received, for the face of the note. He will be treated as having made himself answerable to his principal for the full amount he ought to have received from the debtor. (4)

Money paid by an agent under a mistake as to the legal obligation of his principal may be recovered back by the principal, in an action for money had and received, as, for instance, where a government collector improvidently and mistakenly pays a fishing bounty to a vessel which has not been enrolled in a manner entitling her to the bounty; (5) so where the principal himself so pays the money, (6) or where a a person who is not entitled to a pension fraudulently obtains one, and the money is obtained by another with notice thereof. (7)

Money paid to defendant, and for his use. (8)—One who refuses to perform a contract, on the ground that it is void by the statute of frauds, cannot recover what he has paid thereon, if the other party be ready and willing to perform. (9) If the vendor have not refused to perform, the vendee cannot recover back what he paid upon the contract without averring and showing that the vendee's title is absolutely bad. It is not sufficient to show it doubtful. (10) The rule is different in an action at law, from a suit in equity by the vendor, to compel the specific performance of a contract to purchase. (11)

One who pays money is not bound to show he

(1) Smith v. Mayor, etc., 37 N. Y. 518. This case must be held to overrule People v. Brennan, 30 How. 417; 1 Abb. (N. S.) 184; although nothing is said therein of the latter. See, also, Montgomery v. United States, 5 Court of Claims Rep. 93, where an officer was dismissed and reinstated.

(2) Platt v. Stout, 14 Abb. 178;1 Chit. Pl. 100, and cases cited. (3) Smith v. Mayor, etc., 37 N. Y. 518.

(4) Allen v. Brown, 51 Barb. 86; Van Rennselaer v. Morris,

1 Paige, 13; Beardsley v. Root, 11 Johns. 464.

(5) U.S. v. Bartlett, Davies' 9, Ware District Judge.

(6) Pitcher v. The Turin, etc., 10 Barb. 337.

(7) U. S. v. Inhabitants, etc., Davies', 154, Ware, D. J.

(8) Upon the subject, generally, see 2 Conw. Rob. Prac. 434,

et seq.: 1 Estee's Pl. and Prac. 481, et seq.; 1 Cow. Tr.(Kingsley's

ed.) 88 317-330 b.; 1 Wait's Law and Prac. 698, et seq.

(9) Moak's note to Clarke's Ch. 350, marg. p., and cases cited; see also Simon v. Kaliske, 6 Abb. (N. S.) 225. (10) O'Reilly v. King, 2 Rob. 587.

(11) O'Reilly v. King, 2 Rob. 587.

paid it in the discharge of a liability, binding either on the plaintiff or on the defendant; it is enough to show that it was paid in accordance with an uncountermanded authority, or in compliance with an express or implied request, (1) as an usurious note; (2) or an agreement void by the statute of frauds; (3) or on bets which were illegal; (4) the principal can only prevent the surety who pays an usurious debt from recovering, on the ground that he expressly forbade his doing so before the payment was made. (5)

It has been held that money paid to another for an illegal purpose, as for betting, cannot be recovered back, though it be never used for such purpose; (6) but after a retrial of the case, it was held, on appeal, that if the money was not, in fact, used according to directions, or if the plaintiff had countermanded his instructions before it was so used, it might be recovered back; (7) so it has been held in Massachusetts, that an indorser who pays a note before it is protested, and he charged as indorser, cannot recover the money so paid, on the ground that the payment is gratuitous, (8) but the court did not notice a prior decision in that State to the contrary, (9) and the English courts have held the reverse. (10) The rule, however, only enables the surety to recover of a principal debtor, on the ground of an implied request, until countermand, to pay the obligation. It does not apply against a surety. Where sureties in a bail bond had the right to surrender their principal, before suit brought against them, and one of them being sued before the other paid the bond, held, he was not entitled to contribution; that he had paid the bond before his co-surety became fixed, and had no right to thus deprive him of his right to surrender the principal. (11) In this case the co-surety was not, as will be readily seen, the principal debtor, and the law would not imply a request to his co-surety to pay the inchoate obligation. Where a surety on a bill, after acceptance, paid it before it was demanded of the acceptor, and protested as against the drawer, it was held, he could not recover of the drawer, for as soon as it was accepted he was not the principal debtor, but a surety for the acceptor, and could only be made liable upon the bill after demand and protest. (12)

Hon. John M. Reed, associate justice of the supreme court of Pennsylvania, denies that he has any idea of resigning his seat on the bench.

(1) Alexander v. Vane, 1 Mees. and Wels. 511; Brittain v. Lloyd, 14 id. 762; Ford v. Keith, 1 Mass. 139; Shaw v. Loud, 12 id. 447; Harpinger v. Solms, 5 Serg. and Rawle, 4; 1 Cromp. and Mees. 480, note (Johnson's ed.); Armstrong v. Toller, 11 Wheat. 258; Bullard v. Raynor, 30 N. Y. 197; see Rust v. Morse, 2 Hill, 656; and Theob. Pr. and Surety, 173, and cases cited.

(2) Curtis v. Leavitt, 17 Barb. 311.

(3) Rust v. Morse, 2 Hill, 656, 657; Pitman Pr. and Surety, 130. (4) Knight v. Chambers, 15 C. B. 561, 80 Eng. C. L.

(5) Ford v. Keith, 1 Mass. 139, 142.

(6) Morgan v. Groff, 5 Den. 364.

(7) Morgan v. Groff, 4 Barb. 524.

(8) Bachelor v. Priest, 12 Pick. 399.

(9) Ellsworth v. Brewer, 11 Pick. 316.

(10) Hantly v. Sanderson, 1 Cromp. and Mees. 467.

(11) Skillin v. Merrill, 16 Mass. 41.

(12) Monroe v. Easton, 2 Johns. Cas. 75.

CURRENT TOPICS.

There is an ominous silence on the part of the secretary of state, in regard to his proposed action under the smuggled provision for extending the contract for publishing the court of appeals reports. It has been rumored for some time that he has extended the contract, but we do not believe it; because we do not believe that any man, even ordinarily honest, “as the world goes," would voluntarily make himself a party to a fraud so gross and an outrage so palpable. Should the secretary conclude to sanction the extension, we trust that he will have the courage to let the fact be known, as it is a matter in which several thousand people of the State have something more than a passive interest.

Next to the czar of Russia commend us to Washington officials, as specimens of autocracy. To say nothing of the pension bureau and the patent office, the revenue department will answer as an illustration. Directly after a new commissioner is inducted into office, he sets himself to work to reverse the decisions of his predecessor, which is perhaps of little consequence; but not satisfied with this coup d'état, he goes about reversing the decisions of the courts. Some time ago, Judge Strong, of the United States supreme court, sitting at circuit, decided that the United States was not entitled to recover from railroad corporations the tax on dividends declared within the first seven months of 1870 (see 2 Albany L. J. 296); but the new commissioner, Douglass, has reversed that decision, and directed his subordinates to collect the tax, "without reference to the decision of Judge Strong."

The commercial colleges of the country have adopted a system of education that might be usefully adopted by the law schools-a combination of the theoretical and practical. Most law schools pretend to turn out "ready-made lawyers" at every commencement, which every body knows they never do. Their graduates are usually full of theoretical law, so to speak, but know nothing of its practical application. Their moot-courts, of which so much is said, are nothing more than debating societies, where questions of law are discussed. These discussions, undoubtedly, help to fix the law in the mind, and, perhaps, give the student a certain amount of training that may be useful to him in arguing an appeal before the court in banc- a duty which lawyers seldom have to perform in the early stages of their professional life. Undoubtedly, a knowledge of the law is the first thing to be acquired, but there is no reason why a knowledge of the practice should not be acquired at the same time. Indeed, there are strong reasons why it should, and one of them is, that the mind is scarcely able to retain the abstract and theoretical; or if it does retain it, to apply it at the proper time and to the proper state of facts. Give a student a

particular subject to master, say restraining the transfer of negotiable instruments; and a few days after propose a case to him containing a state of facts calling for the application of the principles of that subject, and ask him what advice he would give a client having such a case. The chances are that he will fail to discover the application of the principles and will answer incorrectly. Now, it seems to us that there is no difficulty in the way of our law schools thing to be done is to require every student to so combining the practical with the abstract. The first familiarize himself with the ordinary forms of instruments, from a summons to a will, that he will be able to draft them at any time without the aid of a form book or printed blank. Let the instructor put himself in the place of a client, desiring, for example, an action commenced or a will drawn, and let him state the facts and require his pupils to draft a complaint or a will, and then let him examine these drafts and point out the errors therein. In the second place, nisi prius courts should be formed, with the instructor as judge, and a portion of the students as jurors. A supposed case should be prepared for the plaintiff, and defense for the defendant. Counsel should be assigned, summons issued, pleadings prepared, witnesses instructed, jury impanneled, the case tried, summed up, verdict rendered, judgment entered, and appeal This taken precisely as is done in actual practice. scheme may seem chimerical, but, having seen it successfully and beneficially operated, we know that it is not. In this manner, and this only, can the student familiarize himself with the details of practice and the examination of witnesses, a lack of familiarity with which is so apt to mar the reputation and impede the progress of a young lawyer. We have thrown out these hasty suggestions with the hope that they may lead to a more practical, and, therefore, more thorough, teaching of the law.

GENERAL TERM ABSTRACT. SUPREME COURT-SECOND DEPARTMENT.

ABSTRACTS OF TITLE.

Abstracts of title: when to be retained by mortgagee.The plaintiff had applied for a loan upon certain of his property, to Mrs. Cutler. Defendant was her attorney. Searches were to be made by defendant at plaintiff's expense, the searches so made to belong to Mrs. Cutler. To save the expense of a portion of this search, the abstract of title in question was delivered by plaintiff to defendant. No search was made as to the premises covered by the abstract. The loan was made. On appeal from judgment in favor of plaintiff, for return of the abstract, held, that the disputed abstract was a part of the security for the loan. In case of a sale of the mortgage, or of a foreclosure, it would be necessary that Mrs. Cutler should have it, or that another should be made. Plaintiff substituted his abstract in place of one to be made by defendant, and he must pay his mortgage before he is entitled to its return. Judgment reversed. Holm v. Wost. Opinion by Barnard, P. J.

1

APPEAL.

1. An appeal brings up only the papers on which the judgment in the court below is founded. The court on appeal has no jurisdiction to grant a new trial upon the ground of newly discovered evidence, by motion, in the first instance. The affidavits accompanying the appeal papers, in this case, not having been presented to the court below, cannot now be received. Wood v. Ross. Opinion by Barnard, P. J.

2. Case on appeal: failure to serve may be remedied by order.-Defendant had appealed in good faith, but, by misapprehension, had neglected to serve his case as required by the rules and practice of the court. The court below allowed defendant to do this after the time for so doing had expired. Held, that the court below properly granted defendant the right to serve his case; that it was in furtherance of justice, and without such order the appeal would have been of no practical importance. Order appealed from affirmed. Ib.

ASSAULT AND BATTERY. See Damages.

ASSIGNMENTS. See Evidence.

BILLS, NOTES, ETC.

1. Bona fide holding for value.-On the trial of this case, the court held, as a matter of law, that the plaintiffs were not bona fide holders for value of the note in suit. It appeared that Vail, from whom the plaintiffs obtained the note, was indebted to the plaintiffs for rents collected, in the sum of $289, immediately payable. The note amounted to $15 more than this debt. The note was taken in settlement of the debt so due, and by allowing Vail to retain $15 out of the next months' collections of rents, to be made by him for plaintiffs, which was so collected and retained before the maturity of the note. Held, that the ruling of the court below was erroneous. The transaction, if done in good faith, and without notice of the fraudulent diversion of the note by Vail, constituted plaintiffs bona fide holders for value within the cases. Plaintiffs settled their claim against Vail, extended the time of payment and advanced a new consideration. There was nothing in the fact that Vail was in arrear $30 for the rents due the preceding mouth, which, as a matter of law, made it the duty of plaintiffs to inquire as to the note. Mason et al. v. Hickox et al. Opinion by Barnard, P. J.

2. The plaintiffs, in the usual course of their business and for value, discounted for Balch & Co., a draft made by defendants, and payable to their own order, and directed to Balch & Co., before maturity. On appeal from judgment in favor of plaintiffs for amount of draft, held, that it is immaterial whether Balch & Co. used a portion of the proceeds to take up a note of their own, either just due or about to mature at plaintiffs bank. In either case the plaintiffs would be bona fide holders for value. Assuming that Balch & Co. fraudulently used the draft to which they had no real title as against defendants, it makes no difference. The draft was, as to plaintiffs, lawfully in Balch & Co.'s possession. In such cases commercial necessity requires that the bona fide holder be protected. The rule claimed by defendants, that Balch & Co. could, themselves, sue no one on the draft, and were, therefore, not the apparent owners, cannot be accepted as correct. Judgment affirmed. Central Bank of Brooklyn v. Hammett & Neill. Opinion by Barnard, P. J.

See also Consideration.

CITY OF BROOKLYN. See Real Estate; Also, see Statutes.

COMMON CARRIERS.

What is a delivery to a common carrier.—It appeared in this case that an expressman took the trunk in question to the depot of defendant about noon. It was marked "Israel Rogers, Riverhead, Long Island." He found inside of the depot gate two or three men unloading freight, of whom he inquired who took care of baggage. They told him the man in the office. He went to see the man in the office, and told him there was a trunk outside. He replied "all right," and immediately sent two men to take care of it. The trunk was left by the expressman in the place where the baggage was kept and near the baggage crate, which at the time was locked. The man in the office had been defendant's ticket agent for some years. At about three o'clock in the afternoon the plaintiff went to the office and bought his ticket for Riverhead and asked the agent for his trunk. He said he had seen a trunk answering the description, a short time before, but he did not know where it then was. The employees of the company subsequently informed plaintiff that the trunk had been given to an expressman who had a check corresponding to the one on the trunk. Held. that the case should have gone to the jury. It is enough to establish a delivery, in the first instance, to prove that an agent of the company received and accepted the property for transportation, even if there be, in fact, another person who is proved to be the actual agent having charge of the receipt of freight. The case of Grosvenor v. N. Y. Central R. R. Co. does not control this case. Rogers v. Long Island R. R. Co. Opin. ion by Barnard, P. J.

CONSIDERATION.

The defendants made an agreement with one Miller, by which Miller was to do work for defendant. Miller partially performed, and failed to complete the contract. Defendant desired to employ others to complete the work. It seems that there was an agreement or understanding among the persons doing the same kind of work which Miller had agreed to do, that they would not take an unfinished contract and complete it without the payment by the employer of the contractor who had failed to perform the work, or without the consent of such contractor. In order to induce the contractor to give such consent, plaintiff gave him his promissory note. Held, the only consideration for the note in suit was the consent of the contractor that some other one might finish the work. It was not sufficient to uphold the note. It had no legal value. Miller parted with nothing. Defendant got nothing. Judgment reversed and new trial ordered. Willis v. Rollin. Opinion by Barnard, P. J. 、 Also, see Notes.

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Liability of stockholders under the general manufacturing aci.-The Empire Planing and Moulding Company was incorporated under the general manufacturing act. Its capital stock was never paid in, and no certificate that it had been so paid in was ever filed as required by said act. The certificate of incorporation states the capital at $100,000. Action against defendant, a stockholder, on his alleged personal liability to pay the debts of said corporation. On appeal from judg. ment in favor of defendant, held, that the capital

stock must be paid in money. The amendment of 1855, authorizing the trustees to purchase necessary property and issue stock therefor, does not repeal the law of 1848. If the trustees were authorized by this amendment to take property in lieu of capital in money, they could not legally issue stock beyond the value of the property so taken. In this case they issued stock for $100,000 for property of not half that in value. Defendant is liable to pay the plaintiff's debt. Judgment reversed. Boynton v. Hatch. Opinion by Barnard, P. J.

Also, see Common Carriers.

COSTS.

In this case defendant pleaded title before the justice, and gave the requisite undertaking, with his answer. The justice had no jurisdiction to try the issue made by the defendant. Plaintiff brought his action in the supreme court and recovered a verdict of $5.00 for a trespass upon the lands to which defendant had set up a claim of title. By section 304 of the code, costs are allowed, of course, to the plaintiff upon a recovery "in the actions of which a court of justice of the peace has no jurisdiction." Plaintiff was entitled to costs. Randals and ano. v. Thornton. Opinion by Barnard, P. J.

COVENANTS. See Life Insurance.

DAMAGES.

Evidence in cases of assault and battery: vindictive damages. Action for damages caused by an assault and battery. The assault grew out of a dispute as to certain property. Held, that the court erred in rejecting the evidence offered as to the possession of the property which was the subject of the dispute between the parties. The evidence offered in no way justified the assault and battery, but the damages for the injury had to be assessed by the jury. Such damages might be made up of the actual damages sustained, and if the case were a fitting one, of punitive or vindictive damages. It was of the utmost importance in assessing vindictive damages that the jury should know whether the assault was committed wantonly and without cause, or under a belief that the defendant was asserting a legal right. Such a belief would not affect the actual damage, but might destroy every thing but such actual damage. We cannot say that the jury gave no vindictive damage. If they did, they should have had before them the rejected evidence. Judgment reversed and new trial granted. Linde v. Elias. Opinion by Barnard, P. J.

(Concluded next week.)

DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF INDIANA.*

CORPORATION.

Promissory note. —A corporation known as "The Aurora Brewing and Malting Company" executed a note signed "C. C. Kelsey, Assistant Secretary Aurora Brewing and Malting Company." Held, that this was the note of the corporation, and not that of C. C. Kelsey, personally. Gaff et al. v. Theis.

EVIDENCE.

1. Declaration of agent or servant.-In an action against a railroad company by an administrator, to

*From Hon. James B. Black, State Reporter, and to appear in 33 Indiana.

recover damages for the death of his decedent occasioned by the collision of a locomotive and train of cars, and a wagon in which said decedent was crossing the track of the defendant upon a public highway, held, that the declarations of a fireman employed on the locomotive at the time of the collision, made upon the arrival of said train, bearing the body of the deceased, at a station one mile from the place of the accident, the train having been stopped at the scene of the accident, and the body having been placed upon it and carried thereon to said station, that the train was running between forty and sixty miles an hour; that he could not tell any difference between the signal and the collision; that the deceased was sitting with his back toward the train; that he did not think the deceased saw or heard the train or knew there was any train in reach of him; that the deceased never moved out of his position till he was struck; that there was no signal, -were not admissible in evidence as part of the res gesta. The Bellefontaine Railway Company .Hunter, administrator.

V.

2. Presumption as to improper evidence.- Where error has occurred in the admission of improper evidence material to the issue, it will be presumed that it worked injury, unless the contrary affirmatively appear; and the action of the court in overruling a motion for a new trial assigning such error for cause is not presumptive evidence that the error worked no injury. Ib.

3. Cross-examination: alteration of written instrument. On the trial of an action on a promissory note given for a quantity of barley sold by the payee to the maker, where the question at issue was, whether the note was executed for the sum specified therein or was made for a sum one hundred dollars less and altered by the payee to the greater sum, the maker, called as a witness by the plaintiff, testified, that the signature was his, but, over the plaintiff's objection, further testified that the note had been so altered by the payee after its execution; that the maker could not read English writing; that the note was written by the payee and by him read to the maker as for the smaller sum; whereupon, the payee on his own behalf testified, that the sum of one hundred dollars was to be paid in cash on the barley; that when he was writing the note, the maker said he could not then pay the one hundred dollars, whereupon he wrote the note for the larger sum. On cross-examination the payee was asked, whether, when he wrote the note, and before it was signed, he stated to the maker that it was for the smaller sum, and whether he did not so read the note to the maker, which question being objected to as not proper cross-examination the court refused to permit it to be answered. Held, that such refusal was error. Schneider v. Rapp.

NEGLIGENCE.

Railroad. No neglect of duty on the part of a railroad company will excuse any person approaching on a highway a crossing of the track of said company from using both the senses of sight and hearing, where either of these may be available; and injury to such person where the use of such faculties would have given sufficient warning to enable him to avoid the danger, conclusively proves negligence, and there can be no recovery for such injury, unless the railroad company has been guilty of such conduct as to imply an intent or willingness to cause the injury; and this can be attributed only where the company has notice of the particular emergency in time to avoid the collision by the use of

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