while she could sue and be sued in reference to all of the property which she acquired from other sources than her husband, she could not sue or be sued in reference to property that she acquired from him. If therefore the husband should, through fraud or conversion, procure money or other property, and then give the same to his wife, the wife would be protected in the retaining of the possession of the property, for having received it from her husband, she could not be sued therefor. No matter whether she was authorized to take and hold property from her husband, the effect of the act was to prevent her from being sued. It was to remedy this defect that the act of 1862 was passed, in which the words 'except her husband' were properly left out of section 7, but still retained in section 8. No other legislation appears to have affected the question. It consequently appears to us that section 3 of the act of 1849 is still in full force, unrepealed, and that the words therein contained, 'other than her husband,' prevent her from taking title by grant of her husband. The case of Hunt v. Johnson, 44 N. Y. 27; S. C., 4 Am. Rep. 631, is the most favorable decision to the plaintiff's claim to which our attention has been called. The conclusions reached by Hunt, Commissioner, have been questioned and criticised upon the ground that the authorities upon which he relies do not sustain the position taken by him. (See 13 Alb. L. J. 110.) But conceding the rule to be as he states it, the wife is not here asking to have the deed to her, upon the nominal consideration of one dollar, established by a court of equity, but her illegitimate son, a stranger to Abel Easterbrooks and his daughter, and if a court of equity will not interfere as between persons standing upon the same meritorious consideration, as between wife and child of the grantor, it will not in favor of a stranger who has no claim upon the grantor for support and maintenance." In New York Infant Asylum v. Roosevelt, 35 Hun, 501, it was held that in an action of libel, brought by a charitable corporation, alleging loss of donations, a bill of items should be furnished giving the names of the donors. The court said: "The rules prescribing what such a pleading as this complaint should be require that this information shall be given the defendants. That was considered in Hartley v. Herring, 8 T. R. 130, where it was held that the declaration should state the names of the customers whose patronage had been withdrawn from the plaintiff by reason of a slanderous publication. This complaint has not complied with that rule, except as to the two persons, Fisher and Parke, whose names seem to have been given, so far as they were known, and to remedy the deficiency in this respect the orders requiring the names of the persons referred to, to be given, were regularly made If the plaintiff expects to be able to make proof of the fact, that persons have withheld charitable donations from it because of this publi cation, the defendants are entitled to know who those persons are in order to be prepared to meet that part of the case as far as they may be able to do so by proof upon the trial." In Beacannon v. Liebe, 11 Oreg. 443, it was held that although two partnerships, composed, in part, of the same individuals, could not sue each other at law, yet that a balance of account, due from one of such partnerships to the other, might be assigned, and the assignee might maintain an action to recover such balance unless it should appear that a general ascertain such balance. The court said: accounting was necessary between the two firms to 66 'The difficulty at law arises from the fact that all the partners must join and be joined in the action, and as no person can maintain an action against himself, or against himself and another, it could not be sustained. (Story's Eq. Juris., § 679.) Equity however treats the copartnership as a distinct existence, looks behind the form of the transactions to their substance, and treats the different firms, for the purpose of substantial justice, exactly as if they were composed of strangers, or were, in fact, corporate companies. Id. § 680. In this case, the assignment of the claim freed it entirely from the objection that a person cannot maintain an action against himself. That feature in it has been removed by the assignment, and upon that point it stands upon the same ground as the cases cited by appellant's counsel of Moore v. Holland, 39 Me. Barrows, 17 Pick. 361. And we see no reason why 304; Thayer v. Buffum, 11 Met. 398, and Pitcher v. such objection, where it is merely technical, cannot be obviated in that way, where the assignment is actual and real. The respondent's premise that the assignee acquired no higher rights than those held by his assignors, is undoubtedly correct, but his conclusion drawn therefrom is not supported by it. The question of right is not involved in the matter; it is a question of disability. One firm could assign the claim, when owing to the peculiar circumstances referred to, they could not maintain an action upon it in their own name; the assignment removed that disability. The case of Thayer v. Buffum, supra, is decisive of that point. See also 18 N. Y. 74." Hayden v. Whitmore, 74 Me. 230; Hale v. Wilson, 112 Mass. 444. In Learned v. Ayres, 41 Mich. 677, it was held that the assignee could not bring suit. In Claflin v. Smith, 15 Abb. N. C. 241, it was held that an assignment for the benefit of creditors under the laws of this State is not invalidated by reason of a clerical error in the certificate of acknowledgment. In that case the officers certified personal appearance, etc., of the party described in and who executed "the same," instead of the "within instrument." Davis, P. J., said: "The act (Laws of 1877, ch. 466) looks only to the substance of the thing, and is satisfied when the act appears in that respect to have been complied with, no form of certificate is therein prescribed, and consequently it need not be in any particular form. Ritter v. Worth, 58 N. Y. 627; Sheldon v. Stryker, 42 Barb. 284; West Point Iron Co. v. Reyment, 45 N. Y. 703. It is the policy of the law to uphold a certificate when substance is found (Kelly v. Calhoun, 95 U. S. 710), and it should be the aim of courts in cases of defective certificates to preserve and not to destroy, and the court should be astute to find means to make official acts effectual. Morse v. Clayton, 21 Miss. 373; Wells v. Atkinson, 24 Minn. 161, and for that purpose the courts may refer to the deed itself. In Scharfenburg v. Bishop, 35 Iowa, 60, the word "appeared" was omitted, and it was held obviously a mere clerical error. In Davar v. Cardwell, 27 Ind. 478, the form of the certificate was "" acknowledged it" and it was held that "it" meant the deed. In Pickett v. Doe, 5 Smedes & M. 470, the acknowledging officer inserted his own name instead of that of the grantor and this was held not to be fatal. In Samuels v. Shelton, 48 Mo. 444, the mistake was an omission to identify the deed and it was held to be of no consequence, because it was obvious what was intended. In Rigler v. Cloud, 14 Penn. St. 364, the court say: 'It is against the spirit and genius of our government to extend nice, technical objections to the acts of magistrates and other functionaries of the law who are called periodically from the mass of the people to discharge such duties, without previous legal learning or experience, and thereby disturb estates long settled and purchased for full value, and thus revest the estate in the hands of the original vendor by a legal quirk.' And see Warner v. Jeffray, 96 N. Y. 248." See also 14 Abb. N. C, 452, note, 25 Alb. Law Jour. 16; 14 Eng. R. 500; Smith v. Boyle, 67 How. Pr. 351; S. C., 18 Week. Dig. 461. DE COMMON WORDS AND PHRASES. ECREPIT.- In a statute concerning assault and battery upon "decrepit persons," those words mean those who are disabled, incapable or incompetent, from either physical or mental weakness or defects, whether produced by age or other causes, to such an extent as to render them comparatively helpless in personal conflicts with persons of ordinary health and strength. Hall v. State, 16 Tex. Ct. App. 6. The court said: "What meaning are we to give to the word decrepit? Words used in the Penal Code, except where specially defined by law, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context, and subjectmatter relative to which they are employed. Penal Code, art. 10. Mr. Webster makes the word 'decrepit' a dependent of old age; that is, according to his definition, before a person can be decrepit, old age must have supervened upon such person. He defines the word thus: 'Broken down with age; wasted or worn by the infirmities of old age; being in the last stage of decay; weakened by age.' This word is not defined in the Code, nor do we find any definition of it in the law lexicographies. In our opinion, as used in article 496 of the Penal Code, and as commonly understood in this country, it has a more comprehensive signification than that given it by Mr. Webster. We understand a decrepit person to mean one who is disabled, incapable or incompetent, from either physical or mental weakness or defects, whether produced by age or other causes, to such an extent as to render the individual comparatively helpless in a personal conflict with one possessed of ordinary health and strength, We think that within the meaning of the word as used in the Code, a person may be decrepit without being old; otherwise the use of the word in the Code would be tautology. It certainly was intended by the legislature that it should signify another state or condition of the person than that of old age. Thus where the party assaulted was a man about fifty years old, disabled by rheumatism to such an extent that he was compelled to carry his arm in an unnatural position, and in such a manner as to render it almost if not entirely useless to him in a personal difficulty, it was held, that whilst his condition might not come technically within the word meaning of the decrepit as defined by Mr. Webster, yet it might with propriety be said that it fell in the measure of that word as used in common acceptation. Bowden v. State, 2 Tex. Ct. App. 56." MOVABLE PROPERTY.- A growing and unripe crop is not "movable " or "personal property." Hardeman v. State, 16 Tex. Ct. App. 1. The court said: "We now recur to the question, is growing cotton movable property, as alleged in the indictment ? 'Movable' property is such as attends a man's person wherever he goes, in contradistinction to things immovable. 2 Bouv. Law Dict. word Movables.' Thus money, jewelry, clothing, household furniture, boats and carriages are said to follow the person of the owner wherever he goes; they need not be enjoyed in any particular place; and hence they are movable. 1 Schoul. Pers. Prop. 25. Certainly a crop of cotton growing upon land cannot by any stretch of the rules of construction be brought within this definition of movable property. It is most clearly a thing immovable. It may however become movable. Says the author last quoted: 'Fruits so long as they are hanging on the trees, the crops until they are gathered, and timber trees while they are standing, are things immovable, or real estate, because they are attached and appendent to the ground. But when the fruits or crops are gathered, or the trees cut down, as they then cease to be attached to the soil, they become movables. 1 Schoul. Pers. Prop. 123. We think it too plain to be controverted, or to require a further investigation of authorities, that a crop of growing cotton is immovable property, and is not within the meaning of 'movable property' as used in the article of the Penal Code under which this conviction was obtained. * * * There may be personal prop Г. erty which is not movable. Personal property not not properly describe an association which mined and sold ore and coal from its own lands, or sank oil wells and sold their peoduct, and we see no difference between the production and sale of such substances so far as this controversy is concerned, and the business now in question." come NECESSARIES FOR THE SUPPORT AND MAINTENANCE OF THE FAMILY.- Funeral expenses within this definition. Bair v. Robinson, Pennsylvania Supreme Court, February, 1885. The court said: "We are inclined to think with the dissenting judge below, that all legitimate expenses that are required for a decent maintenance of the family in the rank of life to which it is accustomed, not only ought to be regarded as necessaries, but are in fact such, and that it is impossible to characterize as decent the refusal of a daughter, who has the means so to do, to remove from her household and dispose of in a proper manner the dead body of her mother. A child, or as in this instance a mother, must not only be housed, fed, and clothed when in health, have proper medical attendance and nursing when sick, but must also, if only for the welfare of the remainder of the family, be buried out of sight when dead. Common decency, as well as health and comfort, requires this." TELEGRAPH, TELEPHONE.— A telephone is a telegraph. Com. v. Penn. Telephone Co., Pennsylvania Common Pleas, February, 1885. The court said: "A telegraph line is such whether it be furnished with the Morse instruments, or the Hughes' type writing instruments, or any one of the many devices which have been invented to accomplish the same purpose. One may be better or more practi MERCHANT.- A coal and oil mining association is not a mercantile one. Com. v. Natural Gas Co., Penn. Com. Pleas. The court said: "Who then is a merchant ? Tomlins' Law Dictionary (eds. of 1796 and 1835), defines him as 'one who buys and trades in any thing,' adding, 'but every one who buys and sells is not at this day under the denomination of a merchant; only those who traffic in the way of commerce by importation or exportation, or carry on business by way of emption, vendition, barter, permutation or exchange, and who make it their living to buy and sell by a continued assiduity or frequent negotiations in the mystery of merchandising, are esteemed merchants.' Abbot's Law Dictionary describes him as 'one whose busi-cal than another; some may require skilled operators, ness it is to buy and sell,' and Bouvier uses the same language, adding, 'this applies to all persons who habitually trade in merchandise.' Webster, among other definitions gives these 'one who buys goods to sell again; and one who is engaged in the purchase and sale of goods.' (See also Soule Eng. Syn., Merchant, Mercantile Trade; Smith Syn. Discrim., Commercial Trade; and the dictionaries of Richardson, Johnson, Walker and Worcester under the words italicised. The leading idea in all the definitions of a merchant, whatever restriction as to the kind and extent of his business has sometimes been thought necessary to justify the use of the word, is of one who but buys to sell again, and who does both, not occasionally or incidentally, but habitually and as a business. This view of the subject is taken also by the Pennsylvania authorities. Norris v. Commonwealth, 3 Casey, 494; Commonwealth v. Campbell, 9 Casey, 380, to which may be added Barton v. Morris, 1 W. N. C. 543, decided in 1875 by Judge Biddle and acquiesced in no doubt because of his clear and satisfactory reasons. It seems plain therefore that a 'mercantile' partnership is one which habitually buys and sells, which buys for the purpose of afterward selling, and that a business such as is conducted by the defendant is not mercantile. Surely that word would and others may not; but all, while each differs from the others in details, are alike in this: they are telegraphs because they transmit intelligence to a distance, whether by conventional signs or signals, by written or printed letters, or by articulate speech. That the word 'telegraph,' which designates them all, is formed from Greek roots which signify 'far' and 'to write,' is of no consequence in this connection. The essence is the sending of intelligence to a distance. The words by which the Germans, the French, the Portuguese, and many other nations, respectively, designate what we call a 'railroad,' mean literally an 'iron road;' yet a road laid with steel rails, and without any iron being used in its construction, would now be designated by the same words, although they were at first used because at the time railroads were introduced into those countries, the rails were in nearly every instance made of iron." (Citing AttorneyGeneral v. Edison Telephone Co., 6 Q. B. Div. 244.) "The same edition of Webster defines a 'telegraph' to be be a machine for communicating intelligence from a distance by various signals or movements previously agreed upon, which signals represent letters, words, or ideas which can be transmitted from one station to another, as far as the signals can be seen.' This definition shows that the word 'telegraph' did not originally include the idea of Y. 422; Pope v. Savings Bank, 30 Alb. L. J. 331 (to aptransmission over a wire by means of electricity or pear in 56 Vt.); Taylor v. Henry, 48 Md. 550. otherwise, but merely signals addressed to the eye; this country on this point, aud deserves more than a The case of Young v. Young is the leading case in and compared with the later definition, illustrates passing notice. One Young placed in two envelopes. the changes of meaning which words necessarily coupon bonds, and upon each envelope he indorsed a undergo in consequence of the never ceasing pro- memorandum signed by him to the effect that certain gress of discovery and invention. * * * We of the bonds belonged to his son William, and the remainder to his son John; but that the interest to bethink, as there suggested, that the question whether come due upon them was owned and reserved" by it is correct to speak of the telephone as actually him (the father) during his life; and that upon his transmitting sound, is a question of words rather death the bonds were to belong "absolutely and enthan ideas. Sound is not an entity in the sense in tirely to them and their heirs." The Court of Apwhich a material substance is such. When a loaded peals of course held that no valid gift had been made cannon is discharged, the ball is actually transmitbecause there was no delivery. It was urged by the respondent that effect should be given to the intented and will make its presence known by actual tion of the decedent by construing the defective gift impact upon any substance, animate or inanimate, as a valid declaration of trust. In answer to this arguin its path. But the same cannot be said of the ment the court said: "The difficulty in establishing sound produced by the discharge. The undulations such a trust is that the donor did not undertake or atof the air thus caused will, indeed, strike any sub-tempt to create it, but to vest the remainder directly in the donees. Assuming for the purpose of the argustance they meet in their widening circle, but these ment that he might have created such a trust in himundulations are not sound. Sound is the effect self for the benefit of his sons, and further that he produced by the undulations when they come in might have done so by simply signing a paper to that contact with an organism susceptible of having this effect and retaining it in his own possession without effect produced upon it. Hence we are using words ever having delivered it to the donees or any one for them, yet he did not do so. He simply signed a paper very loosely when we speak of sound being transcertifying that the bonds belonged to his sons. He mitted through the air or through a speaking tube. did not declare that he held them in trust for the donees, And manifestly, even this transmission through the but that they owned them, subject to the reservation, air is not what is meant when it is said that the and were at his death to have them absolutely. * * * sound is transmitted by the telephone, for the transIt is established as unquestionable law that a court of mission is practically instantaneous, and not limited to the rate at which the undulations of the air are known to move. But this merely by the way; in any event it cannot be a controlling factor in the decision of the case." SHOP.- The office of a corporation for loaning money, where it keeps its collaterals, and sells them when not redeemed, is a "shop." Boston Loan Co. v. City of Boston, 137 Mass. 332. equity cannot by its authority render that gift perfect which the donor has left imperfect, and cannot convert an imperfect gift into a declaration of trust merely on account of that imperfection. *** The words of the donor in the present; case are that the bonds are owned by the donees, but that the interest for so long as he shall live; and at his death they beto accrue thereon is owned and reserved by the donor long absolutely to the donees. No intention is here expressed to hold any legal title to the bonds in trust for the donees. Whatever interest was intended to be vested in them was transferred to them directly, subject to the reservation in favor of the donor during his life and free from that reservation at his death. DELIVERY NOT ALWAYS ESSENTIAL TO A Nothing was reserved to the donor to be held in trust GIFT. THE common-law rule requiring delivery as a pre requisite to the validity of a gift has been somewhat modified by more recent decisions. In numerous instances the courts have supported as declarations in trust transactions that were clearly insufficient to constitute a gift in the legal acceptance of the word; and have adjudged that such transactions divest the owner and donor of all beneficial interest in the subject-matter of the trust, and transfer the whole title in equity to the donee, who becomes as much the owner of the property as he would have been had there been a delivery. It is important at the outset to state a distinction that is made by all the authorities. There can be no valid declaration in trust unless the party intended to create a trust. It is not sufficient that the transaction constitutes in the abstract a good declaration of trust. The donor must have willed and determined to establish a trust. Where his intention is to make a gift, and the court cannot spell out from the transaction a design on his part to create a trust, no valid trust is in fact created, even though the transaction would have constituted a good trust, had such been the intention of the donor. Young v. Young, 80 N. or otherwise, except his right to the accruing interest which should become payable during his life. It could only be by reforming or supplementing the language used that a trust could be created, and this, as has been shown, will not be done in case of a voluntary settlement without consideration." The case of Pope v. Savings Bank, supra, is to the same effect. Plaintiff's testator, S. Barlow, deposited money in the defendant's Savings Bank. He directed the treasurer to enter the name Marion Cushing (the name of the claimant) on the bank register as the person in whose name the deposit was made, and also to enter thereon, "Payable to S. Barlow." Subsequently he directed the treasurer to add to the entry the following: During his life and after his death to Marion Cushing," making the entry, as so altered, read as follows: "Payable to S. Barlow during his life and after his death to Marion Cushing.' The Supreme Court of Vermont held that no valid declaration of trust was created because there was no intention to create a trust, the court saying: "If the intention is to make such a transfer as would constitute a gift, but the transaction is imperfect for this purpose, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust.'" B it The English cases of Richardson v. Richardson, L. R., 3 Eq. 686, and Morgan v. Malleson, L. R., 10 Eq. 475, which seem to announce a doctrine in conflict with that established by the authorities cited, have beeu virtually overruled both in England and in this country. In Richards v. Delbridge, L. R., 18 Eq. 11, Sir George Jessel, M. R.,says, regarding these cases: "If the decisions of Lord Romilly in Morgan v. Malleson, and of Wood, V. C., in Richardson v. Richardson were right, there never could be a case where the expression of a present gift would not amount to an effectual declaration of trust." In Young v. Young, supra, the Court of Appeals, after referring to them, say: "Both of the cases cited are now placed among overruled cases. "Fisher's Am. Dig. 1873 and 1874, 24, 25. And in Pope v. Savings Bank, the court say: "Two English cases not cited by the claimant, but tending to support her claim of a trust, viz., Richardson v. Richardson, L. R., 3 Eq. 686, and Morgan v. Malleson, L. R., 10 Eq. 475, have been repeatedly criticised in this country and England, and are regarded as contrary to the doctrine settled by the weight of authority and virtually overruled." One further quotation from the case of Young v. Young on this point is important. "If the settlement is intended to be effectuated by gift, the court will not give effect to it by struing it as a trust. If it is intended to take effect by transfer the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust." The distinction is clearly expressed by Lord Cranworth in Jones v. Lock, L. R., 1 Ch. App. 25. "The cases all turn upon the question whether what has been said was a declaration of trust or an imperfect gift." con The case of Barker v. Frye, 75 Me. 29, is an extreme decision, and cannot well be sustained in view of the authorities already referred to. The depositor, whose acts and statements were held by the court to be sufficient to constitute a valid trust, informed the treasurer of the bank in which the deposit was made that she wished to make a deposit for each of four grandchildren. She took pass-books in their names, but subject to her own order during her life-time. There was certainly nothing in the language used to indicate that the depositor intended to create a trust. It is difficult to see how it can be claimed that her acts indicated such a design on her part. The only meaning that can be fairly deduced from the transaction is that the depositor intended to give her grandchildren certain sums of money at her death, provided she did not change her mind before that time. But the decision would have been none the less unsound, even though it had been manifest that the depositor intended to create a trust. None was in fact created. This brings us to another important rule; that the mere design to establish a trust is not sufficient but that the trust must be actually consummated. Martin v. Funk, 75 N. Y. 134; Pope v. Savings Bank, supra. In the first case the court said: "The act constituting the transfer must be consummated and not remain incomplete or rest in mere intention; and this is the rule whether the gift is by delivery only or by the creation of a trust in a third person or in creating the donor himself a trustee." And in Pope v. Savings Bank the court declared "that a voluntary trust which is still executory, incomplete, imperfect or promissory, will neither be enforced nor aided." The reason for this rule is obvious. Until the trust is actually executed, no title can vest in the beneficiary; and equity will give him no remedy because it will never enforce a voluntary promise not founded on consideration. It will sometimes be difficult to determine whether under the cir cumstances of particular cases the donor has done or said enough actually to create a trust, or whether his words or conduct merely evince a desire or intention to establish a trust in future. No definite, precise rule can be laid down by which to settle this question in all cases. But several doctrines, which relate to this branch of the subject, have been authoritatively established, and they will be now considered. In the first place it is settled that not only is it not necessary that there should be a delivery of the property to the beneficiary, but it is not necessary even for the donor to part with the possession of the property. He may create a valid trust and yet retain control of the property. This control however must not be the control of an absolute owner. He must divest himself of all ownership of the property, so far as the trust is to affect it, and constitute himself the possessor and holder of it as trustee for the beneficiary. Martin v. Funk, 75 N. Y. 134; Pope v. Savings Bank, supra; Minor v. Rogers, 40 Coun. 512; Ray v. Simmons, 11 R. I. 266; Milroy v. Lord, 4 De Gex F. & J. 264. In Martin v. Funk the court said: "The contention of the defendant is that the transaction did not transfer the property, and that by retaining the pass-book the intestate never parted with the control of the property. If what she did was sufficient to constitute herself a trustee it must follow that whatever control she retained would be exercised as trustee, and the right to exercise it would not be necessarily inconsistent with the completeness of the trust." The donor may constitute himself trustee, and the trust will be valid and binding upon him. This was held in the cases just cited and also in Young v. Young, 80 N. Y. 438. Barker v. Frye, 75 Me. 29; Millspaugh v. Putnam, 16 Abb. Pr. 380. It is not necessary that the trust should be created by a written instrument. A parol declaration will suffice. Milroy v. Lord, supra; Pope v. Savings Bank, supra. In Milroy v. Lord, Chief Justice Turner expressed it as the opinion of the court "that if the property be personal, the trust may be declared either in writing or by parol." And in Pope v. Savings Bank, the court declared that "a perfect or completed trust is created where the donor makes an unequivocal declaration either in writing or by parol that he himself holds the property in trust for purposes named." No particular language need be employed in creating a trust. Any statement or expression that clearly evinces an intention on the part of the owner of the property to create at that time a trust for any person will impress the property in the hands of such owner with a trust in favor of the designated beneficiary. Martin v. Funk, supra; Pope v. Savings Bank, supra; Young v. Young, supra. In Martin v. Funk the court said: "No particular form of words is necessary to constitute a trust, while the act or words relied upon must be unequivocal, implying that the person holds the property as trustee for another." Substantially the same doctrine is stated in Pope v. Savings Bank." He need not in express terms declare himself trustee, but he must do something equivalent to it and use expressions which have that meaning." These cases and all the authorities on the subject enunciate the rule that the intention to create a trust must be clearly and unequivocally expressed. If the court, after construing the language and acts of the party in the light of surrounding circumstances, is in doubt as to the meaning of the transaction, it will refuse to sustain the validity of the attempted gift as a trust. A deposit of money by the owner in his own name in trust for another has repeatedly been held to create a valid trust in the absence of any explanation of the transaction. Martin v. Funk, supra; Boone v. Savings Bank, 84 N. Y. 83; Willis v. Smyth, 91 id. 297; Mabie v. Bailey, 95 id. 206; |