were at the time the subject of the lecture; for all of which reading and consultation the law library of Judge Gould-at that time the largest and best in the State furnished ample facilities. The notes thus written out by each student, when completed, filled some five and twenty manuscript books, or volumes, which constituted books of reference whose great advantage must be obvious to every person acquainted with the comprehensive and abstruse science of the

law.

Examinations were held by Judge Gould every Saturday on the lectures of the week, when a thorough investigation was made of the principles of each rule that had been laid down.

Additionally to that, a "moot court was held weekly in the evening for the argument of law questions, at which Judge Gould presided. The questions then discussed were prepared by him in the forms in which law questions generally arise in actual practice. Two students acted as counsellors, one on each side; and the arguments advanced with the opinion of the judge were recorded in a book kept for that purpose. Besides that court, societies were established for improvement in forensic exercises, which were under the control of the students alone.

The entire course of instruction was completed in fourteen months, including two vacations of four weeks each.

It is easy to see that the student in the Litchfield Law School had nothing to do but to learn the law. The isolated location of the village-in those days when the cities of Hartford and New Haven were distant a day's journey- the absence of any facilities for wasting time in amusement; in short, the quiet and seclusion of a small country village furnished opportunities for study, and impediments to every thing but study, which never can be found in law schools established in large cities, as is universally the case now.

Judge Gould intended, after the discontinuance of the Law School, to publish his entire course of lectures; but his failing health prevented him from doing so. He published a single title-a Treatise on Pleadings-which at once took rank as a law book of the very first order, which is a text-book throughout the United States and which must hold its prominent place for all time. It is a model of pure English and concise reasoning, and it suggests to speakers and writers who are given to the diffuse style, the capital advantage of putting the most thought into the fewest words.

As a conclusion to this brief sketch of this celebrated school, it may be a matter of interest to mention some of the names of its graduates who in after life attained distinction:

Class of 1798-Henry W. Edwards, Conn., United States Senate; Horatio Seymour, Conn., U. S. Senate; Henry Baldwin, Conn., judge U. S. Supreme Court.

Class of 1801-Joseph Barnes, Mass., judge; Ogden Edwards, Conn., judge, New York.

Class of 1802-Wm. Woodbridge, Ohio, U. S. Senate.

Class of 1804-Alfred Cuthbert, Ga., U. S. Senate. Class of 1805-John C. Calhoun, S. C., vice-president, etc.; Samuel Howe, Mass., judge Sup. Court.

Class of 1806-Samuel Church, chief justice of Connecticut; Marcus Morton, Mass., governor, etc.; Theron Metcalf, Mass., judge Sup. Court; Joel Crawford, Ga., M. C.

Class of 1808-Jabez W. Huntington, Conn., U. S. Senate; John P. Cushman, N. Y., judge Sup. Court; Silas Robbins, Conn., judge Sup. Court, Kentucky. Class of 1809-John A. Cuthbert, Ga., M. C.; Levi Woodbury N. H., judge U. S. Sup. Court, etc.; Henry W. Dwight Mass., M. C.

Class of 1810-William D. Martin, South Carolina, M. C.; Garrick Mallery, Penn., judge Sup. Court; William C. Gibbs, R. I., governor; Charles S. Todd,

Ky., Minister to Russia; Edward F. Tatnall, Ga., M. C.; James Booth, Del., chief justice of Delaware; Henry Shaw, N. Y., M. C.; James G. King, N. Y., M. C.

Class of 1811-William W. Ellsworth, Conn., judge Sup. Court, governor, etc.; Milo L. Bennett, Conn., judge Sup. Court, Vt.; Henry L. Ellsworth, Conn., Com. of Patents, U. S.; Frederick A. Tallmadge, Conn., Recorder, N. Y.; Samuel S. Phelps, Conn., judge Sup. Court, Vt.

Class of 1812 - George B. Holt, Conn., judge, Ohio; George B. Porter, Penn., governor of Michigan; Kensey Johns, Del., chancellor of Delaware; Roger S. Baldwin, Conn., governor; Albert C. Greene, R. I., U. S. Senate.

Class of 1813-Peleg Sprague, Mass., U. S. Senate; Augustus B. Longstreet, Ga., judge Sup. Court.

Class of 1814-Chester Ashley, N. Y., U. S. Senate; John C. Nicholl, Ga., judge Sup. Court; Daniel Low, jr., N. Y., counsellor, etc.

Class of 1816-Thomas F. Foster, Ga., M. C.; Thaddeus G. Holt, Ga., judge Sup. Court; William W. Boardman, Conn., judge Sup. Court.

Class of 1817-John M. Clayton, Del., chief justice, Delaware, Secretary of State, etc.; Truman Smith, Conn., U. S. Senate; Lucius Q. C. Lamar, Ga., judge Sup. Court; William C. Dawson, Ga., judge Supreme. Court, etc.; John Y. Mason, Va., Secretary of Navy, etc.

Class of 1818 - Francis L. Hawkes, N. C., D. D., New York; William T. Gould, Conn., judge, Ga.; Walter S. Franklin, Penn., major-general U. S. A.

Class of 1819- William Beach Lawrence, N. Y., governor Rhode Island; Hopkins Halsey, Ga., M. C.; Frederick Whittlesey, Conn., M. C.

Class of 1822- Horace Main, Mass., M. C.

Class of 1823 - Eugenius A. Nesbitt, Ga., judge Sup. Court; Washington Poe, Ga., M. C.; John L. Stephens, N. Y., Oriental traveler; Francis B. Cutting. N. Y.; Edward D. Mansfield, Ohio; John R. Livingston, N. Y.

Class of 1824-William V. Peck, Conn., judge, Ohio; Origen S. Seymour, Conn., chief justice, Conn.

Class of 1825-Anson V. Parsons, Mass.. judge Sup. Court, Penn.; Elias W. Leavenworth, Mass., Secretary of State N. Y.; Josiah Sutherland, N. Y., judge Sup. Court.

Class of 1826-Willis Hall, N. Y., attorney-general; George Gould, Conn., judge Sup. Court, N. Y.

Class of 1828- Henry P. Edwards, Conn., judge Sup. Court, N. Y.

Class of 1830-Lewis B. Woodruff, Conn., judge Superior Court and U. S. Circuit Court, N. Y.

The entire number of graduates from the Law School since it was established by Judge Reave to its discontinuance was exactly eight hundred.

NEW YORK COURT OF APPEALS ABSTRACT.

CORPORATION

FORFEITURE OF CHARTER-RIGHTS OF LESSEE OF PART OF FRANCHISES.-Action by attorney-general to enforce an alleged forfeiture of charter by the Albany and Vermont Railroad Co., and dissolving the corporation because of its non-user of the part of its road between Waterford Junction and Eagle Bridge. The order of leave to bring the suit provides that if that company shall promptly fix the terminus on the west side of the Hudson river, and the plaintiff shall recover judgment, then on the company's request the judgment shall dissolve its charter only as to the disused part o its road and confirm it as to the rest. Held, that the action was a friendly one only to annul the charter only as to such disused portion. The Troy and Boston R. R. Co. applied to be admitted as a party as lessee from the Albany and Vermont company of such

disused portion during the corporate lives of the parties. Held, that the application should be grauted. One railroad company may contract with another for the use of its road, and the lessor may delegate a portion of its frauchises to the lessee. Both companies are then interested in maintaining the lessor's charter and the lessee is entitled to be heard. Code, § 452. Its title depends on the preservation of the charter, and it would be unjust to cut it off unheard, especially when there is reason to suppose the lessor friendly to the forfeiture. The validity of the lease is not now properly in question on this motion. Order of General Term reversed and that of Special Term affirmed. The People v. The Albany and Vermont R. R. Co. and The Troy and Boston R. R. Co. Opinion by Rapallo, J. [Decided May 20, 1879.]

CRIMINAL LAW-STATUTORY CONSTRUCTION-SELLING LIQUOR TO INTOXICATED PERSON.- The offense of selling liquor to an intoxicated person, created by section 18 of the excise act of 1857, is not punishable criminally. It was not criminal at common law and no statute pronounces it a criminal offense or misdemeanor. This statute imposes a specific penalty, the forfeiture of not less than $10 nor more than $25 for each offense, to be recovered in the name of the commissioners of excise and paid into the county treas ury. When a statute creates a new offense, making that unlawful which before was lawful, and prescribes a specific penalty and mode of procedure, that penalty alone can be enforced. People v. Stevens, 13 Wend. 341; Lane v. Brown, 16 id. 561; Rex v. Wright, 1 Burr, 543. The Behan case, 17 N. Y. 516, distinguished, and limited on the ground that there the offense was selling liquors in quantities less than five gallons without a license, and stress was there laid on the fact that it had been made criminal in previous statutes, and the intention to preserve its character was inferable from sections 16 and 29. Intoxication is not a crime under section 17, and a person arrested therefor is entitled to a jury trial. Hill v. People, 20 N. Y. 363. Section 29, declaring certain offenses to be misdemeanors, applies only to the offenses therein specified. Foote v. People, 56 N. Y. 321. The intent to constitute a new crime must be reasonably certain and cannot be imputed from loose inferences and doubtful implications. Judgment affirmed. The People v. Hislop. Opinion by Church, C. J.

[Decided May 20, 1879.]

EVIDENCE.

EXTRADITION-WARRANT—RECITALSThe warrant of the governor for the arrest of a fugitive from the justice of another State, reciting the essential facts, is prima facie sufficient to justify holding the prisoner when brought up on habeas corpus, without producing the papers and evidence on which the governor acted. If the affidavit or indictment charging the offense appears by the return, the court may examine it and pronounce whether a felony has been legally charged, and if not may discharge the prisoner. People v. Brady, 56 N. Y. 182. Whether the warrant is conclusive it is unnecessary to determine. The question of identity is not reviewable here. Order affirmed. The People ex rel. Draper v. Pinkerton. Opinion per Curiam. [Decided May 20, 1879.]

MANDAMUS-DISCHARGE FROM FIRE DEPARTMENT - REVIEW OF FINDINGS OF COMMISSIONERS. -The relator was a member of the uniformed fire department of the city of New York, subject to the rules, regulations, and orders of the defendants, and removable only after written charges and reasonable notice of an examination thereof. Laws of 1873, chap. 335, art. 10, § 77. He was dismissed from the service, and now objects that the charges were vague, indefinite, and uncertain, and that the evidence did not

support the findings. The charge was of conduct prejudicial to good order," with a specification of "a disturbance on the engine-room floor with foreman, J. W., of this command, between the hours of 4.05 and 4.10 P. M., of October 28, 1877, at the engine house, 193 Fulton street." A copy of the charge and notice to appear was personally served more than twenty-four hours before the time of trial. Held, that the charge and notice were sufficient. The evidence showed that the relator was grossly assaulted by the foreman without provocation and in consequence of the discharge of an official duty, and the finding might well have been the other way. The foreman knocked the relator down, and the relator then attacked him and wounded him with a small knife, whereof he died. Held, that the evidence might also justify a finding of an unnecessary attack by the relator or of the use of unnecessary force in self-protection. On the weight of evidence the decision cannot here be reviewed. People v. Board of Police, 39 N. Y. 518. Order affirmed. The

People ex rel. Donovan v. The Board of Fire Commissioners of the City of New York. Opinion by Danforth, J.

[Decided April 25, 1879.]

JUDICIAL SALE DEFECT OF TITLE RIGHTS OF PERSONS NOT PARTIES.-The appellants refuse to complete purchases on partition sale on ground of defect in title, the land being alleged to be subject to the lien of certain legacies. As the legatees are not parties to this action, and cannot be heard on this motion, no decision herein would be obligatory upon them, and therefore a construction of the will should not now be made. The purchaser has a right to a good title and should not be put to the hazard of a contest with other parties which may diminish the value of his purchase. The objection should be clearly futile to warrant the court in compelling the purchaser on motion to complete when there is such an objection as the present raised. The difficulty is not obviated by the fact that the partition was voluntary and the lien is made a charge on the portion set apart to the person representing the testator. The legatees have received no notice and would not be bound by such division. Their rights cannot be settled by parties who make partition without regard to their rights. Orders of Special and General Terms reversed, motion denied, referee to pay back purchase-money and auctioneer's fees. Jordan v. Poillon. Opinion by Miller, J. Church, C. J., and Danforth and Andrews, JJ., concurring; Earl, J. concurring in result; Folger, J., not voting; Rapallo, J., absent.

[Decided June 17, 1879.]

MANDAMUS ORDER ON FUND -COMPTROLLER AND BOARD OF EDUCATION- EXHAUSTION OF FUND BY MISAPPROPRIATION.-The relator had a valid claim against Dutch, the contractor for building a schoolhouse, for lumber furnished therefor, and procured an order from Dutch upon the board of education therefor, payable out of the seventh payment provided by the contract. The board received and retained the order, and the payment becoming due, gave a certificate of all the facts necessary for a voucher to the comptroller, with the order attached. The comptroller paid the whole amount of the payment to Dutch. Held, a wrongful payment. The order was an equitable assignment and did not need a formal acceptance. Edwards on Bills, § 143; Parker v. City of Syracuse, 31 N. Y. 376; Hall v. City of Buffalo, 1 Keyes, 193; Hover v. Sherman, 3 id. 620; Field v. Mayor, 2 Seld. 179; Attorney-General v. Life Ins. Co., 71 N. Y. 325. Notice of the assignment was sufficient, and made the city trustee of so much of the fund for the relator's benefit. Mandamus will lie to compel the payment. The relator first commenced an action therefor against the city, but was defeated on the ground that the record

did not show that he had procured the draft from the board of education, as required by the act of 1851. Afterward he sued the board and was defeated on the ground that the board had discharged its whole duty by giving the certificate with the order. Meantime one Schreyer got an assignment of the eighth and last payment, and the city refusing to pay without deducting relator's claim, he sued the city, and the city was defeated, not on the ground that the notice and order created no liability against the city, but on the ground that this relator had no claim on the eighth, but only on the seventh payment. Mandamus will lie in spite of the fact that the fund is exhausted. If an action were brought the former judgment would be a bar. Although mandamus will usually not issue where the fund is exhausted (High on Remedies, § 352), yet where money has been specifically appropriated, a wrongful application of it to other purposes will not always defeat an application for mandamus. People v. Stout, 23 Barb. 328; Hope v. Westford, 33 Wis. 324; Campbell v. Polk, 3 Iowa, 467; Lansing v. Van Gorder, 24 Mich. 456; Risley v. Smith, 64 N. Y. 570. The fact that the misapplication was made by the predecessor of the present comptroller does not change the case. The office is continuing, and the city is bound to protect the present incumbent. The city is estopped from resisting this application when it has deprived the relator of his remedy by action. Risley v. Smith, 64 N. Y. 570. Orders of Special and General Terms reversed, and writ awarded. The People ex rel. William

H. Dannat v. The Comptroller of the City of New York. Opinion by Church, C. J. [Decided April 8, 1879.]

NEGLIGENCE- MASTER AND SERVANT -CHARGE.Action by servant in defendant's employ, for injury by the falling of an iron car travelling on a suspended railroad in defendant's shop over the heads of the workmen, and used for moving iron beams from one part of the shop to another. There was evidence that the car was thrown off by the contact of the axle with braces extending from the rails to the roof. It also appeared that the wheels did not fit the rails, being loose, and that after the accident they were turned off so as to make them true, and the sides of the car lengthened, and that after that there was no trouble. The defendant insisted that the car was thrown off by a co-servant's jerking a chain attached to it, and that the turning off the wheels and lengthening the sides were before the accident. The court refused to charge that unless the jury believed that the axle and wheel struck the hanger and so threw the car off, there could be no recovery. Held, no error. Although the jury might not have found this specific defect, they had a right to consider whether other defects did not exist and cause the accident. There being no evidence that the traveller, independent of its connection with the track, was not properly made, a request to charge, founded on the contrary assumption, was correctly refused. Judgment affirmed. Priebe v. The Kellogg Bridge Co. Opinion by Andrews, J.

[Decided April 15, 1879.]

PLEADING-FORMER ACTION— DETERMINATION OF FORMER ACTION.- In an action on an undertaking, a former action for the same cause had proceeded to final judgment against the plaintiff, on demurrer, alleging that the complaint did not state facts constituting a cause of action, because it did not show service of notice of the judgment as required by section 348 of the Code of 1848. The notice was subsequently served. Held, that the facts do not support a plea of a former action pending. Such pleas were allowed to prevent vexatious and oppressive suits. It was formerly held that it was no answer to such a plea that the first suit was ended when the plea was put in. Bac. Abr., tit. Abatement (M). It was also held that the

first writ must have been pending when the second was purchased. 5 Mass. 174. Now a discontinuance of the first suit may be shown in answer to the plea. The former must have been pending when the second was commenced. The original judgment is no bar to a new action. Quackenbush v. Ehle, 5 Barb. 469; Bank v. Lewis, 8 Pick. 113; 1 Greenl. Ev., § 530. The action was no longer pending, but the costs in the judgment were collectible on execution. Weyman v. Childs, 41 N. Y. 159, distinguished, on the ground that the question there was whether the Supreme Court under the Constitution of 1846 could award execution on a judgment of the Common Pleas in a suit commenced before its adoption. If the former judgment was a bar it must be pleaded as such. See Rice v. Floyd, 1 Comst. 608. The subsequent appeal by the plaintiff from the judgment in the former action had no retroactive effect. Even if the appeal had been brought before the bringing of the second action, the appeal would not relate to the entry of the judgment so as to defeat a new action properly brought intermediate the judgment and the appeal. The court had power to stay proceedings in this action until the determination of the appeal. Judgment affirmed, absolute for plaintiff. Porter v. Kingsbury. Opinion by Andrews, J.

[Decided April 25, 1879.]

NEW YORK SUPERIOR COURT ABSTRACT.

GENERAL TERM, JUNE, 1879. ANSWER-STRIKING OUT AS SHAM. The action was for rent. The answer which was verified among other defenses set forth on "information and belief payment by the co-defendant, Spoony." A motion was made to strike out the answer as sham. The affidavits on which the motion was made did not show that, at the time the answer was made, it could not have been true that the defendant, Foster, had not been informed and did not and could not believe that his co-defendant had paid the rent. The motion was denied. On appeal, held, that it is not clearly shown that there could be no information or belief. The Code declares that an averment may be made upon information and belief to put the fact in issue. That the principles stated in Wayland v. Tyson, 45 N. Y. 281, and Thompson v. Erie R. R., id. 468, prevent any affirmative defense being stricken out as sham upon affidavits. Webb v. Foster. Opinion by Sedgwick, J. Spier, J., concurred.

ARREST -CONVERSION OF PERSONAL PROPERTY.The defendant employed the plaintiffs to prosecute a certain claim and agreed to give them twenty-five per cent of the amount recovered, and gave the plaintiffs a specific lien upon the claim for the amount. The claim was collected, and in the course of the litigation against the defendant to establish the amount of plaintiff's lien a receiver was appointed, and ordered to invest the money in bonds. The defendant afterward surreptitiously obtained an order for the receiver to deliver to him the bonds, and then he sold them and kept the proceeds. The plaintiffs finally obtained a judgment in the said action declaring the amount of plaintiff's lien. This all transpired in the District of Columbia. The plaintiffs, after demanding their share of said bonds or the proceeds, commenced this action for conversion, and obtained an order of arrest. The motion to discharge it on these facts was denied. Reported below in New York Monthly Law Bulletin for April, 1879. Held, that the judgment in the said action was a bar to the defendant's questioning the existence of the lien. That the plaintiffs having a lien upon the bonds when defendant sold them, the proper portion of the proceeds belonged to the plaintiffs. That this money was "property," and was converted by the de

fendant to his own use. Order affirmed. Hovey et al. v. McDonald. Opinion by Spier, J. Sedgwick, J., concurred.

CATION-REVIEW.

EJECTMENT-AUTHORITY TO SUE-FORMER ADJUDIAppeal from an order denying defendant's motion to dismiss complaint because no authority was shown on the part of plaintiff's attorneys to commence the action which was for ejectment. Before such motion was made the defendant had obtained an order that the attorneys for plaintiff show cause why they should not be compelled to produce their authority for commencing this action. On the return day of this order an affidavit of the plaintiff was produced made after the action was begun which stated, "I have instructed Man & Parsons of 56 Wall. street, New York'city, my attorneys, to bring an action to eject from said premises Harvey A. Allen. I have directed that such suit should be brought in my name as plaintiff." An order was thereupon made reciting the order to show cause and continuing, "now on producing and filing the said authority asked for by the defendant, given by said plaintiff to his said attorneys, the order is hereby confirmed." This order was not appealed from, but subsequently this motion was made on the ground that the authority produced was not sufficient under the statute. 2 Edm. R. S. 314, § 20. Held, that the adjudication upon the order to show cause was final until reversed, and could not be reviewed upon the motion for the order now appealed from. That if the court had been called upon to look at the character of the authority it must have been held sufficient. Order affirmed. Carpenter v. Allen. Opinion by Sedgwick, J. Freedman, J., concurred.

EVIDENCE- -TESTIMONY OF PARTY AS AGAINST EXECUTION AS AGAINST EXECUTORS. The action was for damages for the wrongful detention of personal property. The defendant claimed to hold it for rent due for a house in New Jersey, where the property was seized under a law there which allows a lien in such cases. The plaintiffs were the executors of the person from whom the rent was due. The defendant was allowed to testify under objection and exception to show a hiring by the deceased of a part of her said house at a certain rent mutually agreed upon, that pursuant to such hiring the deceased went into possession and that he continued in possession without paying rent until a demand for arrears of rent accrued to her equal to the value of the property. A verdict was given for the plaintiff. Held, that this was permitting the defendant to testify as against executors concerning a personal transaction between her and the deceased in violation of section 829 of the Code of Civil Procedure. One of the executors was examined simply as to the language used by the defendant in the assertion of the claim for unpaid rent, and did not give the defendant the right to testify on other points. New trial ordered. Hammond and Breen, Executors, etc. v. Schultz. Opinion by Freedman, J. Sedgwick, J., concurred.

LIMITATION.

EXECUTION AGAINST THE PERSON Appeal from an order setting aside an execution against the body. It appeared that in May, 1875, an order of arrest was issued against defendant who was immediately arrested and gave bail and so remained ever since. In October, 1877, judgment was recovered in the action and entered against defendant. Execution against property was returned in January, 1878, unsatisfied. In the following October, 1878, the execution against the person was issued which the court on subsequent motion set aside on the ground that it was not issued within the time required by section 572 of the Code of Civil Procedure. Plaintiff appealed. Held, that section 572 of the Code of Civil Procedure applies only to defendants in actual custody and not those out on bail.

That Coman v. Storm, 26 How. 84, is not in point, as in that case the defendant, though on the "limits," was really imprisoned upon an execution against the person. Order reversed with costs, and the motion denied with ten dollars costs. Schmidt v. Heitner. Opinion by Freedman. J. Sedgwick, J., concurred.

LIFE INSURANCE-ENDOWMENT POLICY.-This action was brought upon that species of life insurance policy known as a ten years' endowment policy issued October 1, 1868, to the plaintiffs in $10,000, and for their benefit, and in case of the death of either or both, for that of their mother; but if Mr. Tweed, the father of plaintiff, should be alive on the 3d of April, 1878, the sum insured was then to be paid to him. The plaintiffs sued as the assignees of Tweed and as beneficiaries named in the policy. Eight annual premiums, of $1,180 each year, were paid by the plaintiffs, but the premium due the 1st of October, 1876, was not paid. On the 4th of December, 1875, Tweed escaped from the sheriff, and some months afterward was found in Vigo, Spain. On the 26th of September, he was placed on board the United States steamer Franklin and brought back to New York as a prisoner. This suit was brought to compel the insurance company to issue to the plaintiffs a paid up policy for $8,000, under a stipulation upon the back of the policy that if, after the receipt by the company of not less than three or more annual premiums, the policy should not cease in consequence of non-payment of premiums, then, upon a surrender of the policy, the company would issue a new one for the full value acquired under the old policy. The company's defense was that the policy had become void before default in payment of premium by Tweed crossing the sea without the consent of the company. It was contended for the plaintiffs that after the payment of three annual premiums the contract could not be terminated by the company for a violation by the person whose life was insured of any of the conditions, except on notice to the beneficiaries. The case was tried before Judge Freedman, who ruled that the stipulation providing for a paid up policy was not a separate contract. "It may be a great hardship for them," he said, "to find that the whole of the payments were made in vain and that the policy which is labelled an endowment policy wholly failed to secure them any endowment whatever. Indeed, to call a policy like the one in question an endowment policy is a misnomer. But the court can only carry into effect the contract as they made it; and as thus made they stand in no better position than Tweed would have stood if he had brought the action. In any aspect of the case, the policy ceased to exist by Tweed's travels upon the ocean to reach Spain, and hence on the 1st of October, 1876, there was no policy in force on which the premium could be paid." Plaintiffs appealed. Held, that judgment must be affirmed. The General Term adopted the opinion of the court below as the opinion of the court. Douglass and Tweed v. The Knickerbocker Life Ins. Co. Sedgwick and Spier, JJ., concurred.

LIMITATION-NEW PROMISE.-In this action one of the defenses relied upon was the statute of limitations. The plaintiffs proved that the defendant sent a letter to plaintiff which contained the following statements: "I am well aware that I owe you for money borrowed. as you have the figures I wish you would, at your leisure, make out a statement of what you consider my indebtedness to you and send it to me, resting assured that in all money matters I want to act honestly toward everybody." A verdict was directed for the plaintiff, the exceptions to be heard at General Term. Held, that no express promise is necessary so long as a promise may be implied from the acknowledgment of a present indebtedness. Kincaid v. Archibald, 11 Hun, 9, approved by the Court of Appeals, April, 1878. That the letter was a sufficient acknowledgment of the in

debtedness to take the case out of the operation of the statute. Judgment for the plaintiff ordered with costs. Fiske v. Hibbard. Opinion by Freedman, J. Spier, J., concurred.

PARTNERSHIP -DAMAGES FOR DISSOLUTION.-The action was for an accounting and for damages for the dissolution of a copartnership before the time agreed upon, and for the taking the partnership property. The defendant furnished all the capital and the plaintiff was to furnish his skill and services, and they were to divide the profits. The plaintiff had judgment for an account of profits due him and also for damages. The judgment was based upon the propositions that the plaintiff had an interest in the stock and also that the defendant was responsible for the sale of the stock, and putting a third person in possession which stopped the business. Held, that the judgment was erroneous, that the plaintiff was not entitled to any part excepting so far as in the progress of the business, it might be converted into profits. That there was no evidence that the defendant had any part or lot in the transaction by which the third person was put in possession of the stock and place of business. The case made it quite as much of a wrong and harm to the defendant as to the plaintiff. It appeared that the plaintiff had overdrawn his share of the profits; the defendant should have judgment for the difference. That a new trial is not necessary. Judgment for plaintiff set aside, and judgment ordered for the defendant for the difference. Conroy v. Campbell. Opinion by Sedgwick, J. Freedman, J., concurred.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

JUNE TERM, 1879.

ACTION BY PAYEE OF NON-NEGOTIABLE ORDER AGAINST ACCEPTOR.-Action of contract upon the following order: "Worcester, Jan. 8, 1876. Messrs. Union Stone Co., Boston, Mass. Please deliver Wood & Light Machine Co. or order, two thousand dollars in emery wheels and emery goods, hones, slips, etc., as per order of October 20, 1875. Buchanan, Ware & Co. Two thousand dollars emery goods at our list prices. Accepted Jan. 8, 1876. J. F. Wood, Treas." Held, that neither the Wood and Light Machine Company nor their representatives could maintain an action thereon. The court said: "The order declared on was for the delivery of two thousand dollars to be paid in merchandise, and is not negotiable. Gushee v. Eddy, 11 Gray, 502. It was said by Mr. Justice Metcalf in Sears v. Lawrence, 15 Gray, 267, The law and incidents of a bill of exchange do not attach to such an instrument.' By the acceptance merely of this order the defendant entered into no contract with the Wood and Light Machine Company. The company was no party to the contract, and if the defendant made any binding contract by accepting the order, it was with Buchanan, Ware & Co. This case falls within the rule laid down in numerous decisions, and which is well stated in Exchange Bank v. Rice, 107 Mass. 37, that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract; and consequently that a promise made by one person to another for the benefit of a third person, who is a stranger to the consideration, will not support an action by the latter.' See, also, Millard v. Baldwin, 3 Gray, 434; Field v. Crawford, 6 id. 116; Dow v. Clark, 7 id. 198; Pettee v. Peppard, 120 Mass. 522; Gamwell v. Pomeroy, 121 id. 207; Cottage Street Church v. Kendall, id. 528; Prentiss v. Brimhall, 123 id. 291." Rogers ▼. Union Stone Co. Opinion by Endicott, J.

LARCENY - EMBEZZLEMENT-INDICTMENT.- Indictment charging defendant with larceny in embezzling and converting to his own use a savings bank book de

livered to him "in the trust and confidence and with the direction that the said Doherty (the defendant) would and should thereby receive only the custody of said book and would and should hold the same until said book was demanded by said McLaughlin (the owner) when the said Doherty would and should deliver up and return said book to him, said McLaughlin." The defendant moved to quash the indictment on the ground of insufficiency because of the matter above quoted. The court overruled the motion and defendant was convicted. Held, no error. The court said: "In order to convict the defendant of the crime charged, it was necessary to prove that the possession of the property, as distinguished from its mere custody, was in him. If the actual or constructive possession was in the owner, then the wrongful conversion would be larceny and not embezzlement. The two offenses are distinct and must be alleged in such terms as will indicate the precise offense intended to be charged. Commonwealth v. King, 9 Cush. 284; Commonwealth v. O'Malley, 97 Mass. 584; Commonwealth v. Barry, 99 id. 428. This indictment sufficiently alleges the crime of embezzlement. The allegation, taken together, implies that the actual and legal possession was parted with by the owner and vested in the defendant, who became a bailee of the property for safe-keeping to be delivered back to the owner when demanded. The limitation that the defendant should thereby receive only the custody of it was intended to exclude the inference that the defendant took any interest in the property except as a naked bailee. The chief allegation is that the defendant embezzled property delivered to him by the owner in trust and confidence, which was to be delivered back when demanded; and this allegation of possession in the defendant is not controlled by the limitation above stated." Commonwealth v. Doherty. Opinion by Colt, J.

PARTNERSHIP - FRAUDULENT REPRESENTATIONS EQUITY JURISDICTION TO RELIEVE PARTNER.-Bill in equity alleging that by the false and fraudulent representations of the defendant as to the extent and profitableness of a certain business in which defendant was then engaged, plaintiff was induced to enter into articles of copartnership with defendant and to pay him $2,000 for a half interest in said business; that the said representations were of facts known only to the defendant, and that plaintiff was induced to the transaction only by said representations and praying that the articles of copartnership might be cancelled; that an account be taken of plaintiff's payments and outlays in said business; that defendant might be decreed to repay the same to plaintiff and restrained from using plaintiff's name in said business and for general relief. Demurrer on the ground (1) that plaintiff had an adequate remedy at law; (2) multifariousness; (3) want of equity. The demurrer was overruled. Held, no error. The court said: "Upon the allegations in the bill, which are admitted by the demurrer, the defendant by false and fraudulent representations as to the extent of his busines induced the plaintiff to enter into a partnership with him for a definite period, which would make the plaintiff liable to creditors as a partner. Against such liability by reason of the defendant's fraud a court of law could afford the plaintiff no adequate remedy. Equity has, therefore, jurisdiction to order the partnership articles to be cancelled, and to restrain the defendant from using the plaintiff's name as a partner; and, having obtained jurisdiction for that purpose, may administer complete relief in the same suit by ordering the defendant to repay the sums advanced or expended by the plaintiff on account of the partnership. Pillans v. Harkness, Colles, 442; Ex parte Browne, 1 Rose, 69; Rawlins v. Wickham, 3 D. C. & J. 354; Story on Part., §§ 232, 285." Smith v. Everett. Opinion by Gray, C. J.