ATTORNEY.

Lien-Default-Judgment.-Where a default is entered in an action of covenant and the case continued, and the parties then make a bonû fide settlement of the litigated claim and costs, the plaintiff's attorneys will not be entitled to have a judgment in favor of the plaintiff against the defendant for their benefit as counsel. The entry of the default does not constitute a perfected judgment, and no such lien then existed in favor of the plaintiff's counsel for fees and expenses as would prevent the defendant from making a bona fide settlement: Hooper v. Welch, 43 Vt.

AUDITA QUERELA. See Debtor and Creditor.

BILLS AND NOTES.

Irregular Endorsement.-Scott drew a note for his own accommodation to the order of Slack; to secure its discount at bank, he procured Kirk's endorsement who placed his name above Slack's. Slack paid one-half the note; Kirk under threat of suit by the bank paid the other half. Held, that Kirk could recover from Slack the amount paid by him: Slack v. Kirk, 67 Penna.

Slack by his endorsement was liable to the bank for the amount of the note: Id.

As to the bank, Slack could set up neither the Statute of Frauds nor Kirk's want of liability: Id.

Slack could not object to payment to any transferee of the bank or to any one rightfully paying the bank and entitled to substitution to its rights: Id.

Kirk as irregular endorser was the only one who could set up the Statute of Frauds, and if he, although an irregular endorser, chose to comply with his parol promise to pay, no one could object: Id.

Kirk had a right to pay if he would, and having paid, to be subrogated to the rights of the bank: Id.

There was a moral obligation on Kirk to perform his promise to pay the bank, and this followed by actual payment constituted his equity and entitled him to substitution: Id.

On paying the bank, Kirk was entitled to the note and could claim as holder under Slack's blank endorsement: Id.

Affidavit of defence. In a suit on a negotiable note by an endorsee against the maker, the affidavit of defence was that the note was the property of the payee, that the endorser's name was used to avoid a defence of usury against the note, that the note had been renewed four times and at each time the payee received usury and the defendant was entitled to a defence to the extent of the usury. The defendant did not aver that he expected to be able to prove the defence alleged. Held, to be a sufficient affidavit of defence: Evans v. Yohe, 67 Penna.

It is not necessary on such positive affidavit that defendant should aver his ability to prove the defence alleged, especially as the defendant is a competent witness on the trial: Id.

COMMON CARRIER.

Liability under a Special Contract; Construction and Effect of Agree

ment. The defendant was a common carrier, owning and operating a railroad extending from Baltimore, Md., to Parkersburgh, W. Va., on the Ohio river, but not owning any railroad terminating either in the city of New York or at Maysville, Ky. On the 1st of September 1866, one of the plaintiffs called at the defendant's freight office in New York, and stated to the freight agent that he was desirous of sending certain merchandise to his firm at Maysville, and inquired at what rate the defendant would carry the same. The agent mentioned the rate, and instructed the plaintiff how to mark and where to deliver the freight. The plaintiff did not accept the proposition at the time or agree to ship any goods, but directed B. & Co., of whom he had purchased certain goods, to mark the same in the manner specified by the freight agent, and to send the same to the freight depot he had named. On the 19th of September B. & Co. delivered such goods at the depot, marked as directed, and addressed to the plaintiffs at Maysville. Held, 1. That the conversation between the plaintiff and the freight agent did not amount to an agreement by the former to ship any goods, and that the sending of the goods to the place designated, marked as directed, eighteen days afterwards, could not be said to be an acceptance by the plaintiff of what was but an offer or proposition on the part of the defendant. 2. That the contract, whatever it was, was made when the plaintiffs, on the 19th of September, through B. & Co. shipped the goods in question and took a receipt therefor. 3. That the contract between the parties was contained in the receipt then given: Ricketts v. The Baltimore and Ohio Railroad Co., 61 Barb.

And, it being, by the express terms of such receipt, agreed that the company should alone be held answerable for the goods, in whose actual custody they should be at the happening of loss, Held, that for a loss occurring after the delivery thereof by the defendant at the end of its road, at Parkersburgh, to other carriers for transportation by steamboat from that place to Maysville, the defendant was not liable: Id.

CONTRACT. See Deed.

Payment of Money.—In ordinary cases the payment of money is not necessary to make a contract complete. It is only where the question is whether a future contract was not in contemplation that it becomes of significance: Orr's Appeal, 67 Penna.

Fraud-Evidence-Vendor-A deed tendered containing an imperfect description, but like that in the articles, held to be admissible in an action of debt to recover the purchase-money: Negley et al. v. Lindsay, 67 Penna.

In an action of debt to recover the purchase-money under an agreement, the defence being fraud in misrepresenting the value of the land, evidence was inadmissible for the plaintiff that he previously had a higher offer for the land from responsible persons: Id.

Where a contract is void on the ground of public policy or against a statute, its confirmation is affected with the original taint: Id.

Where a contract is void on account of fraud practised on the party, it may be confirmed or ratified without a new contract founded on a now consideration: Id.

If a contract be merely against conscience, and the party being in

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formed of all its circumstances and the objections to it, confirms it, he bars himself from the relief he otherwise might have had Id.

In an action of debt for the purchase-money of land for which he bound himself by articles to give "a warranty deed," the plaintiff declared that he had kept and observed the agreement and had been at all times ready and willing to do and perform all things required by it; the plea was, that the plaintiff was not at the date of the agreement and is not seised of the land. This was a traverse of the plaintiff's performance and readiness to perform, and was notice to the plaintiff to prove his title: Id.

Under the pleadings the onus was on the plaintiff to prove that he had a good title before he could recover the purchase-money: Id.

CORPORATION.

Forfeiture for Non-User-Receiver.-An action cannot be maintained against a corporation by a stockholder to effect a forfeiture of the charter, for non-user within a year. And in any case, even when the action is brought by the Attorney-General, a receiver cannot be appointed until judgment in the action: Gilman v. The Green Point Sugar Company, 61 Barb.

Lease executed by.-A lease, executed by one gas company to another, of its works and property for five years, with the privilege of renewal for five years longer, the necessary effect of which is to suspend the ordinary business of the lessor for more than one year, is invalid, as against the stockholders not consenting to its execution: Copeland v. The Citizens' Gas Light Company, 61 Barb.

Action to set aside Lease.-An action to set aside such lease may be brought by a stockholder in the lessor's company who has not consented to or ratified the execution of such lease, in behalf of himself and other stockholders similarly situated: Id.

In such an action, the court is not bound to adjust the equities between the lessor and the lessee, where such equities are not embraced in the pleadings containing the issues tried: Id.

Liability of Corporation and its Agents for Torts.-In an action brought against a corporation and its managing agents, to recover damages for an injury to real estate caused by the explosion of a steamboiler upon the premises of the corporation, it is erroneous to charge the jury that such agents are not liable for any negligence or unskilfulness on the part of the corporation, or the manufacturers of the boilers: Losee v. Buchanan, 61 Barb.

Where an injury done by a corporation, is occasioned by the negligence or unskilfulness of the agent who put the corporation in motion, it is erroneous to hold that the corporation alone is liable, and not the controlling agent Id.

It is also erroneous to hold that a corporation may escape liability, if au injury occurs at the time its sub-agent, whom it employs to conduct its affairs, happens to be in charge; or, that in such a case, the corporation, only, is liable: Id.

In an action against a corporation and its managing agents, to recover damages for an injury to real estate caused by the explosion of a steam

boiler, owned by it, it is erroneous to charge that if the engineer who had charge of the boiler came to the conclusion that to reduce the pressure from 120 to 110 pounds to the square inch would render the use of the boiler prudent and safe, and communicated that idea to a director and managing agent, and the latter believed and acted upon the inform ation, then he was not liable: Id.

It is also error to refuse to charge, in such an action, that the defendants cannot excuse or justify themselves, in the use of the boiler in question, on the ground that the same was purchased of reputable manufacturers; where it is proved that the size, form, character, and materials of the boiler had been directed and ordered by the defendants, and the boiler was made in conformity with the directions: Id.

CRIMINAL LAW. See Libel.

DEBTOR AND CREDITOR.

Execution-Half-Pay of Army Officer.-The half-pay of an officer of the government is not liable to be taken by his creditors: Elwyn's Appeal, 67 Penna.

The pay having reached the beneficiary (a lunatic) and lost its distinctive character and being in the hands of his committee, as a distributable fund it is to be governed by the direction of the law: Id.

A surplus of the pay not needed for the lunatic's subsistence may be applied with the sanction of the court for the payment of his debts: Id. His pay in the future could not be assigned by him if sane, nor intercepted by creditors: Id.

In the distribution of such fund in the hands of the committee, it is not liable to the claim of the $300 exemption against creditors: Id.

Audita Querela-Fraudulent Judgment-Attaching Creditors-Costs. -Subsequent attaching creditors cannot maintain audita querela, using the name of the judgment-debtor against his consent, to vacate a judgment, execution, and levy in favor of a prior attaching creditor, without showing a legal right to the property levied upon paramount to the right of such creditor, and also that in order to avail themselves of that right it is necessary that the proceedings under which the prior creditor acquired his title be vacated and set aside by audita querela. And the suit failing, the defendant would be entitled to his costs: Essex Mining Company v. Bullard, 43 Vt.

Showing that the debtor was a non-resident and the prior attaching creditor obtained judgment without notice, by publication or otherwise, is not sufficient: Id.

the

Neither can they maintain their right to prosecute such suit upon ground that the equitable owner of a demand has the right, when necessary, to use the name of him who has the legal interest. Nor upon the ground that they may enter and defend the suit of a prior attaching creditor. Nor because the judgment sought to be vacated was fraudulent as to creditors; for if fraudulent in that respect it is void as to them, and they may pursue the property in disregard of the prior attachment and levy, without resorting to audita querela or other proceeding to vacate the judgment and levy: Id.

The fact of an agreement of the first attaching creditor, before he

made his attachment, that the attachment on his writ and on those of the subsequent attaching creditors, should all stand on an equal footing, and the property attached should respond to their several debts pro ratâ, and that upon this understanding he was employed to procure the attachments to be made, and that he has taken the whole property upon his own debt and refused to divide pro ratâ, would not entitle the subsequent attaching creditors to use the name of the judgment-debtor to prosecute audita querela to vacate the judgment and levy, for the above causes, viz., defect in service and fraudulent judgment: Id.

There are many errors and mere technical irregularities in the proceedings under a prior attachment, which the defendant in such proceedings may waive, or may successfully interpose, at his election, but of which a subsequent attaching creditor cannot avail himself: Id.

DEED. See Contract.

Alteration in-Plan.-It is incumbent on a grantee to show that an alteration, beneficial to him, in a deed, was properly made: Robinson et al. v. Myers, 67 Penna.

If it appear that the alteration is written with the same pen and ink as the body, the inference would be that it was made before the sealing and delivery; if otherwise such inference would not arise and other evidence would be required to explain it : Id.

The law does not presume that an interlineation in a deed is a forgery or made after execution; it is a question of fact for the jury, upon proof adduced by him who offers the deed: Id.

R. made, laid out, and numbered town lots, and recorded the plot; amongst others were 269, 270, and 271. By deed referring to the plot, he conveyed 271 to M., as bounded on the east by an alley, and 269 to W., as bounded on the west by an alley; no alley appearing on the plot. On the application of J., who had become the owner of 269 and 271 and representing 270 as an alley, the Quarter Sessions vacated "said lot 270." Held, that J. was not entitled to 270: Id.

The plot being referred to, was as much a part of the deed as if incorporated in them: Id.

M. and J. fenced 270 and used it as a yard; if it had been an alley, this was an extinguishment: Id.

If an alley, it was extinguished also by the proceedings in the Quarter Sessions: Id.

Ancient-Estoppel by a Married Woman.-To authorize the admission of a deed as ancient, where the only circumstance relied on is possession, nothing less than proof of possession for thirty years in conformity with the deed is sufficient to raise the presumption of its authenticity: Walker et al. v. Walker, 67 Penna.

Where proof of possession cannot be had, the deed may be read, if its genuineness be satisfactorily established by other circumstances: Id. Children agreed without the knowledge of their father to release to one of them all their right to the father's land at his death, if that one would maintain the father for life. Such contract was not against public policy: Id.

Two of the children were married women who did not acknowledge the deed as such: He'd, that it was binding on the others: Id.