for gaining a knowledge of a trustee's duties might induce many cautious men to accept the office who are now deterred by the sense of their own ignorance and of the risks which that ignorance involves. A further gain would be found in the removal of one cause of the impunity which offenders of the law too often enjoy. Those who are injured by breaches of the law do not know what means of redress have been provided for them, and they consequently sit down patiently under wrongs for which they would otherwise seek compensation. It would be rash to say that the diffusion of this knowledge would always benefit its possessor, inasmuch as even a succesful suit is usually a costly gratification. But it would benefit the community at large, since it would make many wrong-doers hesitate before incurring penalties which they now disregard because they feel assured that the law will not be put in force against them. What is really wanted for this purpose is cheap and convenient editions of separate acts or groups of acts, especially of those which affect the less educated classes. Some acquaintance with law is desirable for every one, but it is most of all desirable for those who from various circumstances are least likely to possess it if it is not designedly brought within their reach. Something more would be needed, however, than the bare text of the act of Parliament. Such editions as we have in view should be accompanied with a plain and untechnical statement of what the act purports to do. The best drawn statute needs to be supplemented in this way before it can be adopted for popular use. It would be further desirable that to each act or group of acts, there should be prefixed a concise explanation of a few elementary legal conceptions. It ought not to be impossible to give reasons why laws ought to be obeyed, or why contracts should be enforced, which would secure a more intelligent acquiescence than can be extorted by that vague dread of the police or of a “lawyer's letter" which at present constitutes to a large part of the population the sole sauction in civil and criminal matters. If these editions were thoroughly well prepared and were published at a sufficiently low price, contemporary statute law would not remain the sealed book which it is to the vast majority of Englishmen.

A more remote advantage following upon the adoption of this plan would be seen in the preparation of the acts thus popularized. In proportion as it became recognized that laws are meant to be understood, and understood by those to whom they are addressed, as well as by the experts who expound them, Parliament would be forced to give up passing laws which are unintelligible. The mystery and confusion of many acts are due, not so much to the inherent difficulty of the subject-matter as to the carelessness of those who make them. It is a constant complaint of the judges who have to interpret acts of Parliament that they have been passed in a shape which will not allow of any uniform and consistent sense being put upon all parts of them. The judge has to pick out what seems to be the meaning of the principal provisions, and to neglect or put a gloss upon other provisions which conflict with this. If a statute had to be explained as soon as passed, it would be necessary to create a competent legal staff for this express purpose, and after this staff had reported several times that such and such a new act was so obscurely worded that, until the opinion of the judges could be taken upon it, it would have to be issued without the customary explanation, it would probably be found convenient to consult the

legal department as to the effect of a bill before it had been read a third time. By this means amendments in committee would come to bear their true character - that of instructions to the draftsmen as to the purpose of the modifications to be introduced into the original bill. At present, however intelligible a bill may be when it is first introduced, there is no security that it will not become utter nonsense by the time that it has got through committee. A number of contradictory amendments are proposed, some of which are adopted in part, others altogether -some in the form in which they are at first conceived, others after they have been amended in their turn. It is nobody's business to see that these changes are properly dovetailed into the bill, still less that they harmonize with the unamended parts of it, or with one another. It is quite possible that every clause of a large measure may have been altered during its passage through committee, and that, in order to make it attain what has now become its object, the whole structure of the bill ought to be recast. The existence of a parliamentary legal department would make this process comparatively simple. Instead of members undertaking to alter the wording of each separate clause, they would propose their amendments upon each section, and the original words, together with the change ordered to be introduced instead of them, would go back to the legal department to be put into proper form.

By slightly extending the functions of this department the time of the House of Commons might be very much economized. At present nothing is known of the contents of a bill upon its first introduction except what can be gathered from the statement of the member who asks leave to bring it in; and when, as not unfrequently happens, leave is given without any thing more than the title of the bill being read, there is no opportunity of explaining its provisions until the debate on the second reading. If every bill were printed before leave was asked to bring it in, and further, if every bill were prefaced by a statement of the objects which it proposed to effect, and the means by which this object was to be attained, members would know beforehand whether these objects were such as they desired to see achieved, and whether the means proposed seemed calculated to achieve them. If the majority of the House were satisfied that the objects set forth in the bill were inexpedient, the discussion would naturally be taken on the motion for leave, and, unless the mover could change the opinion of the house upon the merits of his bill as set out in the preliminary statement, it would be rejected at that stage instead of taking up valuable time some weeks later. In the case of bills the objects of which were prima facie good, such an explanation would make it easier to distinguish between means and ends, and thus tend to check that confusion between what ought to be said in the debate on the second reading and what ought to be reserved for the discussion in committee. In the case of bills which became law, the preliminary statement (modified by the changes introduced during the progress of the measure) would supply the foundation of the explanation to be prefixed to the act of parliament. Under the present system, bills, the drift of which is but imperfectly understood, are allowed to pass into laws the meaning of which is necessarily obscure. Under such system as has just been sketched, the meaning of the original bill, of tho amendments on it, and of the act growing out of them, would be alike intelligible.-Saturday Review.

OBTAINING MONEY BY FALSE PRETENSESEVIDENCE OF OBTAINING IT ON PRIOR AND DISTINCT OCCASIONS.

The recent case of The Queen v. Francis (22 W. R. 663) is one of much importance as regards the law of evidence in criminal cases. The question whether it is allowable in prosecutions for obtaining money under false pretenses to give in evidence other instances of the obtaining of money under similar circumstances, has hitherto been involved in uncertainty. In R. v. Roebuck (25 L. J. M. C. 101), where a prisoner was indicted for fraudulently obtaining money from a pawnbroker by pretending that a chain which was not silver was a silver chain, evidence was admitted to prove that the prisoner, a few days after the offense charged in the indictment, offered a chain similar in appearance to another pawnbroker as a silver chain, requesting him to advance money upon it. Objection was made to the admissibility of the evidence, and the point was reserved, but the judgment of the Court of Criminal Appeal turned upon another point. In R. v. Holt (9 W. R. 74), a commercial traveler, employed to take orders, but forbidden to receive moneys, obtained money by falsely pretending that he had authority to receive it. Evidence that he had subsequently obtained money from another customer by a like false pretense was admitted, and the prisoner was convicted. The question was reserved whether this evidence was rightly admitted, and the court quashed the conviction, saying that on the facts stated in the case they could not find any ground for saying that the evidence was admissible. In neither of these cases did counsel appear for the prisoner; in the former the point as to the admissibility of the evidence was not raised in argument (see 25 L. J. M. C. at p. 102, note) or adverted to in the judgment, and in the latter no reasons are given by the judges.

In the recent case, however, the point was expressly reserved and fully discussed, and the court lay down a rule upon the subject. The facts, so far as they concerned the abstract point of law, were very simple. The prisoner obtained money by pretending that a certain ring was made of diamonds, when in truth it was composed of crytals. In support of this charge, evidence was given that on a prior occasion the prisoner had obtained money by pretending that a silver chain coated with gold was made of pure gold. This latter piece of evidence was objected to as inadmissible, and the point was reserved, but the Court of Criminal Appeal held that it was admissible. seems clear upon principle," said Lord Coleridge, C. J., in delivering the judgment of the court, "that when the fact of the prisoner having done the thing charged is proved, and the only remaining question is whether, at the time he did it, he had guilty knowledge of the quality of his act, or acted under a mistake, evidence of the class received must be admissible. It tends to show that he was pursuing a course of similar acts, and thereby it raises a presumption that he was not acting under a mistake."

"It

The question may be put thus: In a series of similar transactions by the same person, which is the more probable-repeated error or repeated fraud? If this question were put barely, the answer must be, repeated error is more probable than repeated fraud, for error is more common than fraud. But add the circumstances that the transactions are of a lucrative kind, that the statement is in each case of essential importance to the transaction (and is not therefore made per

incuriam), and that the untrue statement is always in favor of the person making it, and the question must be answered differently. The man who in a series of lucrative transactions makes statements which are in fact untrue, and which are always to his own advantage, may properly be held guilty of fraud, unless he is able to offer a satisfactory explanation. But by what accumulation of circumstances is the mere suspicion of fraud which a single such instance raises changed into such a certainty of fraud as will justify a finding of fraud as a fact? It is impossible to say. But each instance increases the weight of the evidence.

Take the analogous case (which has been recognized by the legislature) of uttering counterfeit coin coupled with the possession of other pieces of counterfeit coin (24 & 25 Vict., c. 99, § 10). Can it be denied that the possession of other counterfeit coin gives good reason to suppose that the utterer knew the coin to be counterfeit? But how many counterfeit coins possessed will lead to the inference of knowledge? Clearly a roll or packet of coin would be conclusive. But the possession of one coin is some evidence. Is there any difference between the nature or grounds of the inference in this case and in that in question?

There are many circumstances to be taken into account in estimating the weight of such evidence. The lapse of time, making exact proof of the circumstances imputing guilt, or tending to exonerate, difficult; the number of articles or instances, and many other circumstances not admitting of definite description, must be brought carefully before the jury, and are likely to be fairly and candidly considered by them. But if any such instance tends to prove the knowledge which is in question-and it must be admitted that it does so tend-there seems no ground on which it can be pronounced inadmissible.

The reason of practical necessity on which the admission of such evidence has been based is in itself not complete; but, as a supplementary argument, is of great weight. That reason is thus expressed by Heath, J., in Whiley's case (2 Leach C. C., at p. 986): "The charge in this case puts in proof the knowledge of the prisoner, and, as that knowledge cannot be collected from the circumstances of the transaction itself, it must necessarily be collected from other facts and circumstances." Unless indirect proof of the guilty knowledge is admitted it would be impossible in many cases to prove this essential element in the offense.

It has been urged, on the other hand, that upon principle it seems difficult to stop short of the admission of evidence of independent acts to show the prisoner to be a bad man, for that is to make it less likely that he was acting under a mistake; but evidence of particular acts to show bad character is not admissible. It may be difficult to draw the line in principle, but is it not perfectly defined in practice? The admission of evidence to prove that a prisoner has been pursuing a course of acts of a similar kind to that with which he is charged, where guilty knowledge of a particular set of facts is one of the issues to be proved, is a different thing from admitting evidence of any criminal act to prove a general bad character. The difference between the two cases is greatest in the point which is alleged as constituting the strongest objection to the admission of the former kind of evidence — the alleged hardship on the accused caused by taking him by surprise and so depriving him of the opportunity of rebutting the evidence. In the first case the prisoner or his adviser must be aware that guilty knowl

edge is one of the facts to be proved against him; that it cannot be proved from the circumstances of the transaction itself, and that if proved at all it must be proved from certain previous transactions of a similar nature. There is a specific class of acts pointed out, as to which the prisoner must be prepared with evidence. On the other hand, if evidence of acts showing general bad character were admissible to prove guilty knowledge, the prisoner would be without clue as to what kind of offense would be given in evidence. "The observation respecting prisoners being taken by surprise, and coming unprepared to answer, and to defend themselves against extrinsic facts," says Lord Ellenborough in R. v. Whiley (2 Leach C. C. at p. 985), is not correct. The indictment alleges that the prisoners altered this note knowing it to be forged, and they must know that without the reception of other evidence than that which the mere circumstances of the transaction itself would furnish it would be impossible to ascertain whether they altered it with a guilty knowledge of its having been forged or whether it was altered under circumstances which showed their minds to be free from that guilt."

Still we cannot but feel that (since it is not to be presumed that prisoners will have the benefit of legal advice) an indictment merely charging the prisoner with a particular act does not give him such warning as he is entitled to that other similar acts will be put in evidence, and we would repeat what we said before (17 S. J. 479) with reference to the question of evidence raised in R. v. Cotton, that it seems to us worthy of consideration whether the true remedy for the alleged hardship on the prisoner caused by the admission of the class of evidence to which we have referred, would not be to change the fixed practice which now prevails, and to indict the prisoner, in one indictment for all the cases of false pretenses in respect of which evidence is proposed to be given.-Solicitors' Journal.

COURT OF APPEALS ABSTRACT.

BILL OF EXCHANGE-OWNERSHIP OF-CONVERSION.

This action was brought to recover possession of certain bills of exchange. It appeared that plaintiff at the request of S. & Co., of New York, drew bills of exchange on London and sold them in Havana, and invested the proceeds in currency bills on New York, payable to the order of S., a clerk of S. & Co. These bills were put up in a package and directed to S. & Co., and were delivered to the purser of the steamer C. to be carried to New York and deposited in the post-office there. Plaintiff telegraphed to S. & Co., stating in substance the sale and purchase, and that the bills purchased had been forwarded by steamer C. S. & Co. applied to defendant P. for a loan, exhibiting to him the telegram, and upon the delivery of the telegram with a letter of S. & Co., agreeing to hand over the bills on their arrival, P., relying upon the same in good faith, made the loan desired. The next day S. & Co. failed, owing P. the loan he had made. Plaintiff learned of the failure before the arrival and delivery of the bills, and commenced this action to recover them. He obtained an order therein restraining the postmaster of New York from transferring or disposing of the same. Held, that P. only acquired the rights and equities of S. & Co. in the bills, and could not claim as a bona fide holder, that plaintiff was entitled to reclaim the bills and was not estopped from asserting such right by the telegram.

In dealing in negotiable paper in the ordinary course of business the evidence of ownership required is the possession thereof, properly indorsed, so as to pass the title to the holder, and a purchaser from one claiming to have the right of disposal, but who has not these evidences of title, cannot claim as a bona fide holder for value, he only acquires such rights and equities as existed in his vendor, and subject to all equities as against him. Mullar v. Ponder, impleaded, etc. Opinion by Allen, J.

DIVORCE-CUSTODY OF CHILDREN-REVIEW-DISCRETIONARY AWARD.

This was an action brought for a divorce a vinculo. Issues were tried by a jury. Defendant moved that the court direct a verdict in his favor on the ground that there was not sufficient evidence to submit to support the allegations of the complaint. The motion was denied. The jury found for the plaintiff, and the custody of a child, about twelve years of age, was awarded to her by the court. Held, that the court had power to award the custody of the child to plaintiff (2 R. S. 148, § 59) and its discretion cannot be reviewed by this court upon appeal. Price v. Price. Opinion by Andrews, J.

EASEMENT-WATER-COURSE-STATUTE OF LIMITA

TIONS.

This action was brought to recover damages for the obstruction of a water-course by defendant. It appeared that one A. was the owner of a nail factory, with the right to take a certain quantity of water from a creek and to convey it over or under the surface of the intervening lands to said factory to propel its machinery. A. for this purpose constructed a trunk, about six feet above the surface, through which the water was conveyed. In 1850 defendant acquired title to a portion of the intervening land and built tracks thereon, and without A.'s knowledge removed the portion of the trunk over said tracks and constructed another trunk under the tracks, through which the water was conveyed and then raised by a penstock into the part of the old trunk near the factory. A. refrained from prosecuting defendant upon being assured by its agent that it would make the water-course as good as new at its own expense, and would keep the new structure in repair. This defendant afterward refused to do. A. used the water that flowed through the new structure and kept it in repair. His water-power was diminished by it, and the expense of maintaining it and keeping it in repair was increased. In 1864 A. died, leaving a will, by which he devised all his right and interest above specified to plaintiff. Held, that A.'s easement was such an interest in land as could not be modified or discharged except by conveyance in writing or operation of law; that it was property within the meaning of article 1, section 6, of the constitution, and could not nor could any portion of it be taken for public use without compensation, that A.'s use of the power after the change by defendant was not an acquiescence therein or an acceptance of the new structure as compensation, and did not affect his right to insist upon compensation for the taking of the right to carry it above the surface, or for compensation for the loss sustained by the diminution of the power and the increased expense; that A. at the time of his death still had the right to carry the water above the surface, and this right became vested in plaintiff under the will. This right of enjoying such easement was a

continuous one, and the unlawful preventing its exercise a continuous injury, and therefore the statute of limitations did not bar plaintiff's claim, which was for the injuries sustained since he acquired title. Arnold et al. v. H. R. R. R. Co. Opinion by Grover, J. FACTORS AND BROKERS -COMMISSIONS OF REAL ESTATE

AGENT.

This action was brought to recover commissions for services, alleged to have been rendered by plaintiff as a real estate broker, in effecting a sale of certain real estate for defendants. It appeared from plaintiff's evidence that the defendants purchased the real estate in question through his instrumentality, he acting as broker for the seller. Plaintiff claimed a part of his commissions from defendants, they declined to pay them, but promised him a part of the profits when they sold; he advised them as to the best mode of sale, and procured maps of the property and put them up in different places, and he also put up signs near the property, and put an advertisement of the property in a newspaper, referring to himself as broker. Defendants recognized this and paid for the same. One who was attracted to the property by the maps, signs and advertisements, opened negotiations for its purchase with defendants, and they notified plaintiff of this fact and directed him not to advertise or to make any further efforts to effect a sale, and promised him his commissions provided the sale was made. The sale was afterward effected. Held, that plaintiff was entitled to his commissions.

Also held, that a real estate broker who claims a commission on the sale of real estate is entitled to the same, if he shows an employment and that the sale was made by means of his efforts or agency. If the purchaser is found through the broker's instrumentality, he is entitled to his commissions although the owner negotiates the sale himself, and although the purchaser is not introduced to the owner by the broker, and the latter is not personally acquainted with the purchaser. Sussdorff v. Schmidt et al. Opinion by Church, Ch. J. FIRE INSURANCE-REFORMATION OF POLICY-REVIEW -CONFLICTING EVIDENCE.

1. This was an action brought to reform a policy of fire insurance, upon the stock and materials of a manufacturing establishment and to recover the amount. The policy contained a printed condition, which declared it null and void, in case of the establishment running in whole or in part, over or extra time, or running at night without special agreement. Plaintiffs sought to have this clause struck out or to have a clause giving permission inserted, and they gave evidence to show that they previously insured with defendant, but had the policy canceled because it contained the above mentioned condition, that defendant was informed by plaintiffs that the U. S. Ins. Co., of Baltimore, was writing on the property and that its policy did not contain that clause, and defendant then agreed to write as the other companies did, and to follow the form of the policy of the U. S. Ins. Co., which plaintiffs agreed to furnish and did afterward furnish defendant to copy. A blank policy of the U. S. Ins. Co. was then offered in evidence, which was objected to on the ground that the copy shown defendant should be produced, and that as the blank was not filled up it was not proper evidence. The objection was overruled and defendant excepted. Plaintiffs also gave evidence tending to show that they did not discover the permission was not in the policy until after the fire. Defendant's agent by

whom the insurance was effected denied the evidence as to the agreement. Held, that as the policies were to be alike, it was proper to show by the printed blank form of policy of the U.S. Ins. Co., that it contained no such printed condition as was in defendant's policy.

Also held, that the fact that this action was not brought until after a loss is not ipso facto a bar. It is a circumstance to be taken into consideration in weighing the testimony and determining whether a mistake was made.

Also held, that this court could not review the decision of the trial court rendered upon conflicting testimony, on the question of mistake in the written contract. Van Tuyl et al. v. Westchester Fire Ins. Co. Opinion by Folger, J.

RE-INSURANCE - MORTGAGE INTEREST-RIGHTS

OF MARRIED WOMEN.

2. C. entered into a contract by which she agreed to purchase two mortgages, upon certain mill property, and to pay therefor a specified sum. The husband of C., acting as her agent, applied to plaintiff's agent for policies of insurance to secure C.'s mortgage interest in the premises. The policies were issued, and upon being notified thereof plaintiffs directed the policies to be canceled; said agent thereupon applied to defendant to re-insure the risks, which the latter agreed to do. Subsequently it was agreed that a policy should issue direct to C., and one was executed accordingly. C.'s husband being notified of the issuing of said policy by defendant, paid the premium thereon, which was received by defendant's agent after destruction of the buildings by fire. At the time of the fire C. had only paid a portion of the sum specified upon the purchase of the mortgages. The policy was assigned by C. to plaintiffs. This action was brought upon the policy. The complaint alleged a re-insurance, also containing a count alleging. Held, that the contract was for original insurance, and that plaintiffs could not maintain an action thereon upon the ground of a re-insurance; that defendant was bound from the date when the proposition for insurance was accepted, and as the acceptance and recognition of the contract was within the scope of the authority of her husband, C. was bound thereby, and no ratification upon her part was required to give her an ownership in the policy; that she was entitled to seek indemnity, not only to the extent to which she had paid, but to the extent of the interest for which she had contracted and agreed to pay, to wit, the full amount secured by and unpaid upon the mortgages; that having insured her interest at her own expense, without any agreement or understanding with the mortgagor, she was not required to exhaust her remedy upon the mortgage before enforcing her policy, and could maintain an action thereon although the property undestroyed was equal in value to the mortgage debt.

Also held, that an insurance company, or a receiver of its effects, where a claim for insurance upon a policy issued by it is made, and where it is not entirely clear that a liability does not exist, may purchase and take by assignment from the claimant, and prosecute a policy issued by another company upon the property. Smith v. C. Ins. Co., 11 Penn. 253, distinguished. A. Ins. Co. v. Tyler, 16 Wend. 385; Carpenter v. R. Ins. Co. 16 Peters, 495; and Kernochan v. B. Ins. Co., 17 N. Y. 428, limited.

Under the laws of this State an insurance company has no authority to guaranty the payment or

collection of a debt; its power is limited to insuring against such loss or damage as happens to property by fire. In insuring a mortgage interest it does not insure the debt, but the interest of the mortgagee in the property, upon the safety of which his security depends; such interest is in the whole property as it is at the date of the policy. If the property is consumed in part or damaged by fire, the mortgage interest is by so much affected, and the underwriter is bound to the extent of its liability to make good the loss, without regard to the value of the property remaining. Excelsior F. Ins. Co. et al. v. Royal Ins. Co. of Liverpool. Opinion by Folger, J.

FORECLOSURE OF MORTGAGE-OWNERS OF EQUITY OF REDEMPTION — EFFECT OF BANKRUPTCY.

This was an action brought for the foreclosure of a mortgage. After the action was commenced and before final judgment, petitions in bankruptcy were filed against the owners of the equity of redemption, but when the final judgment was perfected no assignee had been appointed. M. became the purchaser of the mortgaged premises upon the sale, and made a motion to be discharged from his purchase on the ground that by reason of the commencement of the bankruptcy proceedings his title was defective. Held, that the action to foreclose the mortgage was not suspended by the proceedings in bankruptcy, that it could only have been suspended by an injunction from the United States court in bankruptcy restraining the parties; that the suit did not become defective for want of parties by the institution of the bankruptcy proceedings, and that no assignee having been appointed before the final judgment it was regular and M. acquired under it a good title as against the mortgagors and owners of the equity of redemption, parties to the action and all persons claiming or to claim under them, including any assignee in bankruptcy that might be appointed after judgment. Lenihan v. Hamann. Opinion by Allen, J.

MECHANIC'S LIEN.

This was an action brought to foreclose a mechanic's lien. Defendant R. contracted with one F. to do the mason work on three buildings he was having erected, the work to be completed April 1, 1872. The work was not finished by F. until July 1, 1872. After the expiration of the time agreed upon plaintiff permitted F. and his sub-contractors, of whom plaintiff was one, to proceed with the work, and made payments on the contract. Held, that F. was not released or discharged from his stipulation as to time, but that he was liable for the damages resulting therefrom, which damages were the value of the use of the buildings, while defendant was deprived thereof in consequence of the delay. (Mahar v. Williams, 2 Daly, 367, distinguished.) Phillips v. Higgins. Opinion by Grover, J.

SALE-CONDITIONAL SALE-CONVERSION - MEASURE

OF DAMAGES.

S. & Co., of New York, wrote to B. H. & Co., requesting them to purchase and ship to them one hundred bales of cotton. The cotton was purchased and sent to New York, B. H. & Co. taking a bill of lading therefor, deliverable to their order. They sent a draft drawn by them upon S. & Co., at fifteen days, for the cost of the cotton to B. of New York, accompanied by the bill of lading indorsed to B. with instructions not to deliver the bill to S. & Co., until satisfied that the draft would be paid at maturity.

B. not being satisfied that the draft would be paid, stored the cotton, taking a receipt in his own name. He agreed with S. & Co., that they should accept the draft, and if paid at maturity they should have the cotton, and if they did not pay the draft, they were to abandon all claims and allow B. to sell the cotton to meet the draft. The draft was not paid and was protested at maturity. Defendant, having purchased ninety-three bales of the cotton of S. & Co., tendered to B. the purchase price paid for that amount, and B. refused to receive it and subsequently sold the cotton. Plaintiff made advances thereon to the purchaser and took the same into its custody. Defendant F. commenced an action against B. to recover possession of the ninety-three bales under the requisition in which that amount was taken from plaintiff's possession. This action was then commenced to recover possession of the ninety-three bales. Held, that the sale to S. & Co. was at best conditional and no title passed under it until performance, and they not having performed, no title passed to them and consequently none to defendant F. That a tender of the whole amount of the draft, if not accepted, by B. H. & Co., would not give a title, and certainly a 'tender of a portion of it would not.

In an action to recover possession of personal property in case a recovery or return thereof cannot be had, the successful party is entitled to the value of the property at the time of the trial, and not at any intermediate time between the taking and the trial. If during the time of the detention the value of the property shall have been impaired, the los8 must be included in the assessment of the damages caused by the detention. In the absence of proof that the damages are more or less than the interest on the value, it will be presumed that the damages are the interest during the time the successful party was deprived of its use. New York Guaranty and Indemnity Co. v. Flynn et al. Opinion by Grover, J.

STATUTE OF FRAUDS-VERBAL CONTRACT OF SALE. This was an action brought to recover the alleged purchase price of a cargo of hay and straw. Plaintiffs' evidence tended to establish a verbal contract between the parties, by which it was agreed that the cargo should be delivered to defendants upon the barge Erie at Tivoli. The barge was owned by the defendants and one Nichols, who was the captain, and it was employed in freighting for their joint benefit. Nichols was requested to go to Tivoli for a cargo of hay; he was not aware that defendants had any interest in the hay, or that they had entered into a contract with the plaintiffs in reference to it. Plaintiffs delivered the hay and straw under and in pursuance of the verbal contract, it was receipted for by Nichols, and the barge was loaded. The barge was subsequently sunk and the cargo lost. Defendants moved for a nonsuit at the close of plaintiff's evidence, on the ground that no delivery had been shown, so as to make the contract valid under the statute of frauds, and their motion was denied. The court charged the jury that unless Nichols was authorized to accept, the plaintiffs could not recover. Held, that the delivery was sufficient: that the question as to whether there was evidence warranting the submission of the question of an acceptance to the jury was not raised by any exception in the case and could not be considered here, and plaintiffs were entitled to recover. Silver et al. v. Bowne et al. Opinion by Andrews, J.