stance that it transfers a class of cases from courts of record, where juries are composed of 12 men, to_justices' courts, in which they consist of six, only. MULLIN, P. J., dissenting: Knight v. Campbell.62 Barb.

That provision in the constitution has no reference to the power of the legislature to alter and increase the jurisdiction of justices' courts, and was not intended to, and did not, operate as a limitation upon such power in that regard: Id.

The constitution, in guarantying the right of “trial by jury it has been heretofore used," intended to embrace juries in justices' courts, as they existed, and had been before the constitution was adopted: Id.

The word “jury," as used in the constitution, does not mean a jury of twelve men, exclusively. A jury of six men, in a justice's court, is as much a jury, in the eye of the law, as a jury of twelve men, in a court of record, and is the jury which had been "heretofore used" in that tribunal, at the adoption of the constitution: Id.

CONTRACT.

Validity.-Violation of Public Policy-A complaint alleged that the plaintiff and defendant entered into an agreement in writing, by which the former agreed that she would do all in her power to aid in a marriage between one R. and the defendant; in consideration whereof the defendant promised that in case she became the wife of R. and outlived him she would pay the plaintiff, for her services in the matter, $2,000 in cash, etc. The complaint further alleged that R. was a widower, possessing great wealth; that the plaintiff performed the agreement on her part, and that, on, etc., R. and the defendant were lawfully married, and lived together happily for many years, until, etc., when R. died, leaving the defendant $50,000. Demand of performance, and refusal by the defendant, were then alleged. Held, 1. That the plaintiff was properly non-suited, on the ground that the agreement was a marriage brokage contract, and therefore void as being against public policy. 2. That the agreement being void, the claim for advances of money and services performed under it must fall with the agreement itself: Crawford v Russell, 62 Barb.

COVENANT See Evidence.
CRIMINAL LAW.

Competency of wife as witness against her husband.-A wife is a competent witness against her husband, or against him and another person jointly, in the trial of an indictment for using an instrument with intent to procure her miscarriage while prequant with child: State of Maine v. Dyer 59 Me.

DAMAGES. See Trespass.

DEED. See Evidence.

EJECTMENT.

Election of remedies-Ejectment-Partition -The action of ejectment for the trial of the legal title and obtaining possession, when wrongfully withheld, whether of a whole or an undivided portion, and a bill in equity for the partition of lands held by tenants in common, and joint tenants, as provided by the statutes of this State, are not elective remedies, applicable generally to the same state of facts, and to be adopted by parties at their option. Purely legal titles are to be tried at law, where a jury is a matter of right, unless there be some impediment to such trial which requires the aid of a court of equity to remove. When the complainant is not in possession, and the case shows an ouster and an adverse possession, and the legal title is not clear and beyond suspicion, the appropriate remedy for the trial of the title, and the obtaining of possession is by the action of ejectment, and not by a bill in equity for a partition: Hoffman v. Beard, 22 Mich.

ESTOPPEL.

Mortgage on real estate-action-declarations of beneficiary admissible. If the only surviving beneficiary named in a mortgage of real estate actively aid and assist the mortgagor in selling and conveying by deed of warranty the mortgaged premises to a third person without mentioning her own claim, and such third person, relying upon the joint representations of the mortgagor and such beneficiary, and without suspecting that there was any incumbrance upon the premises, thereupon purchased the same for their full value, she is thereby estopped to set up any claim under the mortgage: Bigelow, administrator, v. Foss, 59 Me.

Nor can such estoppel be avoided by the fact that the plaintiff of record is prosecuting the suit as the administrator of the estate of the mortgagor, who stood in the relation of trustee of the other beneficiary: Id.

The declarations of the real party in interest, though his name does not appear as the party of record, are competent evidence against him: Id.

Thus, in the trial of a real action, brought for the sole purpose of enforcing a claim for the life-maintenance of the surviving widow of the mortgagee, in the name of the administrator of the mortgagor, on a mortgage conditioned for the maintenance of the mortgagee and his wife, her acts and declarations tending to show that, at the time of the mortgagor's conveyance of the mortgaged premises by deed of warranty to the defendant's grantor since the death of her husband, she knew the sale was contemplated, and actively aided and assisted in bringing about the sale of the premises at their full value, and urged the mortgagor's grantee to purchase without mentioning her claim, and relying upon the joint representations of the mortgagor and the widow, he did purchase without suspecting there was any

incumbrance upon the premises. Held, that the facts constitute a defense, and that they are admissible in evidence: Id.

EVIDENCE.

Deed-Breach of Covenant-Variance-Description.-In an action for a breach of covenant contained in a deed for the conveyance of land, alleged in the declaration to be made by the defendant, in which "the said defendant did covenant, grant. bargain and agree for themselves and their heirs” “that they were well seized," etc., a deed executed by the defendant and his wife -it appearing that the land was not the individual property of the wife is admissible; and this, notwithstanding the covenant of seizin is stated in the plural: Hovey v. Smith, 22 Mich.

Nor is it any objection to the admission of a deed as evidence in such an action, that the description of the premises is not in the same words as laid in the declaration. The identity of the premisesmay be shown by other evidence: Id.

Covenant-Deed-Additional consideration proven by parol.In the trial of an action of covenant broken by the grantee against the grantor of real estate, to recover the amount of an outstanding tax which the former was compelled to pay to prevent a sale of the premises, it is competent for the grantor to prove that prior to and at the time of the conveyance, the grantee verbally agreed to pay the tax: Dearborn v. Morse, 59 Me.

Declarations of a Grantor.-Although the declarations of a grantor, accompanying the conveyance of real estate to his sons, or accompanying the giving of personal property to them, are competent evidence as res gestae, on the question whether such real estate or personal property were advancements, yet such declarations are not admissible to contradict the plain terms and legal intendment of a writing governing the transaction: Sanford v. Sanford et al. 61 Barb.

The declarations of a father, made subsequent to the execution of deeds of land to two of his sons, and the delivery of money to another son, and when it was not within the power of the father to revoke or alter either of the deeds, or recover back the money, or any part thereof, are mere hearsay, and therefore not admissible as evidence to prove that the land was conveyed, and the money given, as advancements: Id.

Of what took place at the time a will was drawn.—In an action wherein the plaintiff, one of the children, and the widow of a decedent are interested on one side, and the devisees and executors are interested on the other side, the attorney by whom the will was drawn may be allowed to testify as to the making of an agreement between the testator and his wife, at the time the will was drawn, in regard to a bequest of $10,000 to the widow being in lieu of a proposed gift of a $5,000 note; and as to what was said by and between the testator and his wife, and to the witness on that subject; and that the will was drawn in conformity with such such agreement: Id.

EXECUTORS AND ADMINISTRATORS.

Torts-Executors as such not liable for.-Case will not lie against executors as such for damages caused by their raising the dam on a stream, whereby the plaintiff's mill was flowed, when the dam and the lands on which it is situated had, under the will of their testator, become vested in the executors and others: Plimpton v. Richards, 59 Me.

EXECUTION.

Personal Property-Officer's Sale of.-A sale on mesne process of the personal property of a stranger to the process, conveys no title to the vendee; and the real owner may replevy it from the purchaser after it has come into his possession: Coombs v. Gorden, 59 Me.

FENCES.

Removal of by Surveyor-Trespass for.-An action of trespass cannot be maintained against a surveyor of highways for removing fences standing within the limits of the location of a highway in his district, when their continuance has been less than forty years next after the location of the highway: Whittier v. McIntyre, 59 Me.

HUSBAND And Wife. See Criminal Law.

INSURANCE.

Marine Policy-Construction of-Latent Ambiguity.-Where the property insured in a policy of marine insurance was described as "Sixty-five hundred and fifty dollars on charter, twenty-six hundred and fifty dollars on primage, and also fifteen hundred dollars on property on board ship "Charles S. Pennell," at and from New York to San Francisco," Held, That the phrase "at and from New York to San Francisco," is not descriptive of any portion of the property insured, but simply of the voyage during which the risk was to continue: Melcher v. Ocean Insurance Co., 59 Me.

And where it appeared that the vessel was sailing under two charters, either of which answered the call in the policy, parol evidence is admissible to prove which of the charters was insured: Id.

JUDGMENT.

Motion to set aside.-Where it appeared on a motion to set aside a judgment, that it was for an amount exceeding $2,500; that to that extent it was upon a demand for which the defendant upon a settlement with the plaintiffs, had given them his promissory notes, which were not due when the action was commenced. Held, that this presented a question of law for trial. That prima facie, this was against the right of the plaintiffs to the judgment to that extent: Rowles et al. v. Hoare, 61 Barb.

LANDLORD AND TENANT.

Lease-Emblements-"Away-going" Crops-Presumption.-A lease of a farm to a tenant, granting to him "the privilege to keep

and harvest all the crops (in case the land is sold), which he may have put in, and have either pay for what he may do in preparing to put in other crops, or the privilege of putting them in and bar vesting the same," "for the term of one year, with the privilege of three years, if not sooner sold, from and after the first day of April, A. D. 1866," the lease containing an agreement on the part of the tenant to "hire the said premises for the term of one or more years, as above mentioned;" and further, that he would "nct put in more than twenty acres of wheat in any one year," will confer upon the tenant the right to harvest a field of wheat, not more than twenty acres, after the expiration of the lease: Brown v. Par sons, 22 Mich.

It is always a presumption that a lease for one year, with the privilege of several, is to be continued on the same terms, and with the same rights and privileges to the tenant as during the first year, unless some other intention is expressed: Id.

NEGLIGENCE.

Not guarding a roll-way with railing.-On the premises of the defendant, within one foot of the sidewalk of a public street, was a descending roll-way leading to the basement of the defendant's block of stores. The entrance to the south store, occupied by the defendant's tenant as a drug store, was up four narrow steps immediately south of the roll-way. In front of the stores north of the rollway was a continuous platform extending from the north end of the block to the roll-way. The roll-way was unprovided with railing or other safeguard except a buttress on either side thereof rising nine inches above the level of the platform. The plaintiff went upon the north end of the platform in the evening, and while passing along in the exercise of ordinary care for the purpose of entering the drug store on legitimate business, fell into the rollway and was injured. Held, that the place was unsafe, and the defendant liable: Stratton v. Staples, 59 Me.

RAILROAD.

Action for Personal injuries-Negligence-Reasonable careNegligence, or the want of Ordinary care, a question of Fact to be determined by the Jury-Erroneous Instruction-Negligence sometimes a Question of law-To entitle the plaintiff, in an action against a railroad company, to recover damages for injuries sus tained by him in being caught between two cars of the defend ant, while he was attempting to cross a street, it must be shown that such injuries were directly caused by the want of ordinary care and prudence on the part of the defendant, and that they could not have been avoided by the exercise of reasonable care and caution on the part of the plaintiff: B. and O. R. R. Co. v. Fitzpatrick, 35 Md.

If the plaintiff exercised reasonable care, though he may have been guilty of some negligence or want of caution, he is still eati tled to recover for any injury sustained in consequence of the de fendant's negligence: Id.