religious duty. The old idea that religious faith and practice can be, and should be, propagated by physical force and penal statutes has no place in the American doctrine of government. Force can only affect external observances; whereas religion consists in a temper of heart and conscious faith which force can neither implant nor efface. History records the mischievous consequences of all efforts to propagate religion, or alter man's relations to his Maker, by penal statutes. In religion no man is his neighbor's keeper, and no more is the State the keeper of the religious conscience of the people. The State protects all religions, but espouses none. Every man is individually answerable to his God for his faith and his works, and must therefore be left free to imbibe and practice any faith he chooses, so long as he does not interfere with the rights of his neighbor. The statute then is not a religious regulation, but is the result of a legitimate exercise of the police power, and is itself a police regulation. Slaughter-house cases, 16 Wall. 36, 62, and cases cited; Bloom v. Richards, supra; Specht v. Com. supra; City of Charleston v. Benjamin, supra.

Experience has shown the wisdom and necessity of having at stated intervals a day of rest from customary toil and labor for man and beast. It renews flagging energies, prevents premature decay, promotes the social virtues, tends to repress vice, aids and encourages religious teachings and practice, and affords an opportunity for innocent and healthful amusement and recreation. Neither man nor beast can stand the strain of constant and unremitting toil. Such a day, when designated by the State, is a civil and not a religious institution. No merely religious duty is enjoined. The statute does not require attendance on church any more than it requires attendance to hear a lecture in support of infidelity. In point of lawfulness there is no difference between an orthodox sermon and such a lecture on the Lord's day in this State. The Legislature might have required all persons to abstain from labor on the first or any other day of the week, without reference to their religious preferences or practices in that regard. But the statute of that State does not go to that length. While the law does not enforce religious duties and obligations as such, it has a tender regard for the conscience and convenience of every citizen in all matters relating to his religious faith and practice. The statute is catholic in its spirit, and accommodates itself to the varying religious faiths and practices of the people. In legal effect it declares every person must observe one day out of seven as a day of rest. But it does not attempt to bind all to the observance of the same day. Such a requirement would have the effect to compel many to observe two days of rest in each week-the statutory day and the day which their religious faith constrained them to observe. The statute designates the first day of the week as the day of rest for all who do not by reason of their religious faith and practice observe some other day. Christians, who regard the first day of the week as a sacred day; infidels, who regard no day as holy; and Friends, who hold there is no more holiness in one day than another, but that all are to be kept holy, are by the statute constrained to desist from labor on the first day of the week. On the other hand, Jews and Seventh-day Baptists may pursue their ordinary callings on that day, if they observe the seventh day of the week according to their faith; and Mohammedans may labor on the first if they observe the sixth day of the week according to their faith. The statute grants to all persons, who in the exercise of their religious faith and practice, observe one day in the week as a day of rest, the liberty of working on every other day of the week, without qualification or Imitation. In this respect there is a pronounced dif

ference between the law of this and some of the other States.

In many other States but slight regard is shown to those who observe any other than the first day of the week as a day of rest. The New York statute provides:

"Nor shall there be any servile working or laboring on that day, excepting works of necessity and charity, unless done by some person who uniformly keeps the last day of the week, called Saturday, as holy time, and does not labor or work on that day, and whose labor shall not disturb other persons in their observance of the first day of the week as holy time."

The New Jersey statute provides that it shall be a sufficient defense for working on the Sabbath day, that the defendant keeps the seventh day as the Sabbath; "provided always that the work or labor for which such person is informed against is done and performed in his or her dwelling-house or workshop, or on his or her premises or plantation, and that such work or labor has not disturbed other persons in the observance of the first day of the week as the Sabbath." And it has been held that whatever draws the attention of others from the appropriate duties of the Lord's day disturbs them. And where one purchased a horse and gave his note for the same, in his own house in the presence of his wife, the seller, and one other person, whose religious feelings were not at all shocked, and who made no complaint, it was held to be "to the disturbance of others." Varney v. French, 19 N. H. 233.

But the statute of this State draws no such invidious distinctions between those Christians who observe the first and those-be they Christians, Jews, or Mohammedans-who observe "any other day of the * agreebly to the faith and practice of their church or society."

week,

* * *

It is not true therefore that all contracts made in this State on the Lord's day are void. A large number of the citizens of the State may lawfully labor and make contracts on that day. There can be no doubt of the validity of a note executed in this State on the Lord's day, when the parties to it refrain from labor on "any other day of the week, agreeably to the faith and practice of their church or society." The validity of contracts made in this State on that day depends therefore on whether the parties to them conscientiously observe some other day of the week as a day of rest. If they do, their contracts made on the Lord's day are valid. Such contracts the courts of the State would be bound to enforce. If then it would be the duty of the courts of the State to enforce contracts made in the State between its own citizens on the Lord's day, having no relation to "household duties of daily necessity, comfort, or charity," how can it be said that the public policy of the State forbids the enforcement of such contracts made in another State, and valid by the law of that State? A court cannot declare that the public policy of the State evinces such a high regard for the sacredness of the Lord's day as to forbid it to enforce a contract lawfully made on that day in another State, when it is bound by law to enforce contracts made on that day in its own State. It may be justifiable in private life to "assume a virtue, though you have it not ;" but courts, in the impartial administration of justice, are forbidden to assume a higher regard for the holiness of the Lord's day than is found in the Constitution and laws of the State. To do so would deprive suitors of their rights without law and would besides be in the highest degree Pharisaical. And if the courts of the State would enforce contracts made on that day in the State between certain classes of her own citizens, how can the moral sense of

the people of the State be said to be shocked by enforcing such contracts lawfully entered into elsewhere? No court is at liberty to impeach the Constitution and laws under which it derives its jurisdiction and authority as a court, by assuming that what is lawful under them is shocking to the moral sense of the people who enacted them. But if no contracts made on that day in the State could be enforced, there would still be nothing in the objection that their enforcement would be too shocking to the moral sense of the community to be tolerated, for reasons forcibly stated by Judge Redfield, in delivering the opinion of the court in Adams v. Gay, 19 Vt. 358, 367:

"And before we could determine that any given cause shocked the moral feelings of the community, we must be able to find but one pervading feeling upon that subject; so much so that a contrary feeling, in au individual, would denominate him either insane, or diseased in his moral perceptions. Now nothing is more absurd, to my mind, than to argue the existence of any such universal moral sentiment in regard to the observance of Sunday. It is in no just sense a moral sentiment at all which impels us to the observance

of Sunday, for religious purposes, more than any other day. It is but education and habit, in the main, certainly. Moral feeling might dictate the devotion of a portion of our time to religious rites and solemnities, but could never indicate any particular time above all others."

It is believed the moral sense of the community would esteem it a morally dishonest act for a debtor to refuse to pay a just debt because the evidence of it was executed on the Lord's day. Christians vary in their opinions of the manner in which the Lord's day ought to be kept. In continental Europe, sports, games, and practices are freely indulged in on that day, with the approval of the church, which the larger number of Protestant churches of England and this country do not approve.

The large emigration from Europe to this country is having a marked influence on public opinion, particularly in towns and cities, as to how the Lord's day ought to be kept. The Puritan view of the question has undergone some modifications through this influence. As a result of less restricted views on the subject, in this city, in the shadow of the capitol there are more than half a hundred places where spirituous liquors are sold on Sunday, the same as any other day in the week, without molestation from the State or city authorities. It would be downright hypocrisy for a court to affect to believe that the moral sense of the community, which supports this condition of things, would be shocked by compelling a man to pay a note given for an honest debt because it was executed on the Lord's day. There may be a good many individuals who would feel so, but they do not constitute the community in the legal sense of that term.

It is an error to suppose that the Supreme Court of the State, in Tucker v. West, supra, held Lord's day contracts void on religious or moral grounds. That is not the ground upon which they are held void by any of the courts. The court held that the execution by the maker and the receipt by the payee of a promis. sory note was "labor," within the meaning of that word as used in the statute,

It of course follows that the parties to a note executed on the Lord's day incur the penalty of the statute against those who labor on that day, viz., a fine of one dollar. By reference to the statute it will be observed that it does not in terms prohibit labor, or

declare contracts void. It simply denounces a penalty against those "found laboring." Here two familiar and established rules of decision come into play. One of these is, that a penalty implies a prohibition of the

thing itself, on the doing of which the penalty is to accrue, though there are no prohibitory words in the statute; and the other is, that a court of justice will give no assistance to the enforcement of contracts which the law of the land has interdicted.

"The ground upon which courts have refused to maintain actions on contracts made in contravention of statutes for the observance of the Lord's day, is the elementary principle that one who has himself participated in a violation of law cannot be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction." Cranson v. Goss, 107 Mass. 439; Holman v. Johnson, Cowp 341; Gibbs & Sterrett Manfg. Co. v. Brucker, 111 U. S. 597. There have been vigorous protests from time to time against the application of these principles to Lord s day contracts, upon the ground that they inflicted penalties, by judicial construction, out of all proportion to the offense, and not contemplated by the act (Bloom v. Richards, supra; and see remarks of Grier, J., in Philadelphia, W. & B. R. Co. v. Philadelphia & Havre de Grace S. B. Co., 23 How. 218); but the great weight of authority is that a contract made in violation of the Lord's day acts is void, like any other illegal and prohibited contract, and upon no other or different ground. And the reason that a contract made in this State on the Lord's day between persons "who observe as Sabbath any other day of the week" is not void, is that the statute expressly declares they "shall not be subject to the penalties of this act," and as there is no prohibition in terms in the statute, it results that there is neither penalty nor prohibition against such persons making contracts or performing any other kind of labor on the Lord's day. But if by the statute all contracts made in this State on the Lord's day were void, it is believed that the result in the case at bar would not be different.

There is often great difficulty in practice in drawing the line between the foreign contracts which may and may not be enforced. The rules defining the comity of States in this regard are necessarily general in their terms, and the adjudged cases are not quite uniform. No case has been cited, and it is believed none can be found, holding that a contract made on the Lord's day in a State where such contracts are valid will not be enforced by the courts of another State, by the laws of which such contracts are void. But there is one case at least (there may be others which our limited examination failed to discover) that holds that in such case the contract will be enforced. The case is entitled to consideration, no less on account of the uniform high character of the decisions of the court than the acknowledged learning and ability of the judge who delivered the opinion.

In Adams v. Gay, supra, the precise question arose. A contract which, if it had been made in Vermont, would have been void under the Lord's day act of that State, was made in New Hampshire on the Lord's day. In a suit arising upon that contract in Vermont, the question arose whether the courts of that State would give it effect. The court refused to take judicial notice of the law of New Hampshire, and did not indulge the presumption that it was the same as that of Vermont. The court, Judge Redfield delivering the opinion, said:

"The law of New Hampshire then being out of the case, on account of its not having been proved at the trial, the contract between the parties is valid, unless it is void upon general principles of public policy, as being of evil example to our own citizens to see such a contract enforced in a court of justice."

And after a full discussion of the subject, the court,

It has been decided that contracts for the purchase of lottery tickets, if valid where made, will be treated as valid and enforced in the courts of a State by the laws of which such contracts are illegal. McIntyre v. Parks, 3 Metc. 207 (in Webster v. Munger, 8 Gray, 587, Thomas, J., expresses the opinion that McIntyre v. Parks was not rightly decided); Kentucky v. Bassford, 6 Hill, 526. And the same doctrine has been maintained with reference to gambling contracts. Whart. Confl. Laws, §§ 487, 492. [See, contra, Flagg v. Baldwin, 38 N. J. Eq. 219; S. C., 48 Am. Rep. 308, as to contracts for speculating in stocks on margins.-ED.] This court is not to be understood as expressing any opinion as to the soundness of the doctrine of the cases last cited. They carry the doctrine of comity further than it is necessary to go to uphold the action in the case at bar. Lottery and gambling contracts are very generally regarded as inherently vicious and immoral, and wanting in a meritorious consideration, whenever and wherever made. Whereas the contract in suit was not only obligatory where made, but was made for a valuable and meritorious consideration; and the only objection to its validity is that it was executed on an inappropriate day of the week, a circumstance in which it would seem a State, other than that in which the contract was made, could have very little

concern.

It has been held that when the law of the State where the contract was made, and the law of the State where the suit is brought, are the same, and a contract made on the Lord's day is void by the laws of both States, it will not be enforced and that in the absence of proof to the contrary, the law will be presumed to be the same in both States. Hill v. Wilker, 41 Ga. 449; Sayre v. Wheeler, 32 Iowa, 559.

NEW YORK COURT OF APPEALS ABSTRACT.

CRIMINAL LAW-INSANITY NON-EXPERT CODE CRIM. PROC., §§ 275, 284-PREMEDITATION-INTENTQUESTION FOR JURY-GUILT-EVASION AND FALSEHOOD.-(1) Upon trial of an indictment for murder, wherein insanity was set up as a defense, a witness for defendant, who had testified as to, and gave the details of an interview with him on the same evening, and a short time prior to the homicide, was asked: "Were his acts at eight o'clock that night rational or irrational?" This was objected to, and objection sustained. Held error; that the witness was competent to give his opinion as to the character of the conduct and conversation which he had observed. The rule regulating the admissibility of the opinions of nonexpert witnesses upon questions affecting the mental condition of individuals is well stated in the opinion of Judge Porter in Clapp v. Fullerton, 34 N. Y. 190. He says: "When a layman is examined as to facts within his own knowledge and observation, tending to show the soundness or unsoundness of the testator's mind, he may characterize as rational or irrational the acts and declarations to which he testifies." "But to render his opinion admissible, even to this extent, it must be limited to his conclusions from the specific facts he discloses. The rule thus expressed was followed and approved in the cases of Brien v. People, 46 N. Y. 282, and Hewlett v. Wood, 55 id. 634. This question was recently examined and discussed in this court in the case of Holcomb v. Holcomb, 95 N. Y. 316, and the rule as above stated was approved, and our conclusion upon this question leads to an affirmance of the General Term order. (2) In an indictment under the Code Crim. Proc. for murder in the first degree it is not necessary that the particular intent with which

sufficient to allege that it was done feloniously, with malice aforethought, and contrary to the form of the statute. Code Crim. Pro., §§ 275, 284; People v. Enoch, 13 Wend. 159; People v. Kennedy, 32 N. Y. 141; People v. Fitzgerrold, 37 id. 413, (3) On the trial of an indictment for murder in the first degree where the homicide is charged to have been committed "from a deliberate and premeditated design to effect the death of the person killed" (Penal Code, § 183, subd. 1), while the prosecution is required to prove deliberation and premeditation, and while there is no legal presumption arising from proof of the mere commission of the homicide by the defendant which concludes the jury from finding upon that evidence alone that such facts were not established, yet they may be inferred from the perpetration of the act, the jury are authorized to find them unless the circumstances surrounding the homicide clearly repel the idea of deliberation and premeditation. It is a general rule that all homicide is presumed to be malicious, and of course amounting to murder until the contrary appears from circumstances of alleviation, excuse or justification. Russell Crimes, 483; 2 Blackst. Com. 201; Rex v. Greenacre, 34 Eng. C. L. Rep. 280; Hill's case, 2 Gratt. 594; People v. McLeod, 1 Hill, 436. But see People v. Stokes, 53 N. Y. 164; People v. Clark, 7 id. 393; People v. Leighton, 88 id. 117. In People v. Majone, 91 N. Y. 211, Judge Earl says: "Under the statute there must not be only an intention to kill, but there must also be a deliberate and premeditated design to kill. Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection or consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. The human mind acts with celerity, which it is sometimes imposible to measure, and whether a deliberate or premeditated design to kill was formed must be determined from all of the circumstances of the case." (4) On the trial the testimony tended to show that the defendant, knowing the location of the deceased, drew a pistol from his pocket, with some difficulty, as it caught in the lining, and spite of the appeals of another person not to fire, turned toward the deceased, pointed the pistol in his direction and fired, causing his death. Held, that the evidence was sufficient to authorize the jury to find premeditated and deliberate design to cause the death, and this although no motive for the killing was shown. In Starkie on Evidence it is said, "that a rational agent must be taken to contemplate and intend the natural and immediate consequences of his own act, is a presumption so cogent as to constitute rather a rule of law than of mere evidence" (p. 848). "There is a general presumption in criminal matters that a person intends whatever is the natural and probable consequences of his own actions." 1 Phillips' Ev. 632. It was said by Judge Andrews, that "it is a fundamental rule of evidence of very general application, founded upon observation and experience, that a man is presumed to intend the natural consequences of his acts." Foster v. People, 50 N. Y. 609. (5) When the inferences to be drawn from the testimony are not clear and incontrovertible, and men of ordinary judgment and discretion might differ as to its significance, it is the exclusive province of the jury to pass upon the questions involved. Thurber v. Harlem R. Co., 60 N. Y. 331; Morrison v. Erie R. Co., 56 id. 308. (6) The resort to falsehood and evasion by one accused of a crime affords of itself a presumption of evil intentions, and has always been considered proper evidence to present to a jury upon the question of the guilt or in nocence of the person accused. United States v. Randall, Deady, 524; State v. Reed, 62 Me. 129; Common

wealth v. Goodwin, 14 Gray, 55. People v. Conroy. Opinion by Ruger, C. J.

[Decided Oct. 14, 1884.]

CARRIER-RESTRICTING LIABILITY-NEGLIGENCE.Plaintiff shipped two horses by defendant's road under a contract by which he released the company from liability for damages resulting from the negligence of its servants or which should be occasioned by the insecurity of its cars. The horses were transported in a grain car, which was out of repair and while sufficient for the use for which it was intended, was unsafe for the transportation of live stock. In consequence of this defect one of the horses was injured. In an action to recover damages, it did not appear but that other safe and secure cars were provided by defendant and were on hand ready for use, so that the injury might have been caused by carelessness on the part of its servants in selecting an insecure car. Held, that the only negligence shown was that of defendant's servants, from the consequences of which it was released by the contract, and that plaintiff was not entitled to recover. The language of the release, the same being included in the same clause and connected with releases from the consequences of other causes of injury which could only occur during the process of shipment and transportation, is satisfied by limiting it to the negligence of defendant's servants in and about the transportation and does not extend to a negligent omission to furnish proper cars. Nicholas v. New York R. Co., 89 N. Y. 370. Wilson v. New York Cent. R. Co., Opinion by Earl, J.

[Decided Oct. 7, 1884.]

SURETY-TWO DEBTORS-CREDITOR -ACCOMMODATION NOTE-MORTGAGE.-Where, as between themselves,two debtors stand toward each other in the relation of principal and surety, and this is known to the creditor, he is bound to respect such relationship, no matter how or when it arose, or whether he consented to it or not, and although by the terms of the obligation held by him, the real surety occupies the position of principal. Colegrove v. Tallman, 67 N. Y. 95; Calvo v. Davies, 73 id. 211; Palmer v. Purdy, 83 id. 145. In order to obtain money to pay a note executed by J. and indorsed for his accommodation by H., the latter executed to plaintiff his bond secured by mortgage upon his farm. J. afterward guaranteed the payment of the bond. Plaintiff at the time he advanced the money upon the securities knew that it was required to pay the note, and that this was given for J.'s debt. In an action to foreclose the mortgage, it appeared that J. gave to plaintiff a lien upon property of his own to secure the debt; this lien plaintiff, without the consent of H., surrendered or abandoned. Held, that to the extent of the loss thus sustained by H. he was entitled to a reduction of his liability. Grow v. Garlock. Opinion by Earl, J.

[Decided Oct. 7, 1884.]

SHERIFF-TRESPASS-FRAUD.-A sheriff and his indemuitors, sued for trespass in levying upon personal property, the legal title to which is in plaintiff, under an execution against the person from whom plaintiff acquired title, may not attack the transfer for fraud without proving a judgment against the transferor. Opinion per Curiam.

[Decided Oct. 21, 1884.]

VERMONT SUPREME COURT ABSTRACT.* JANUARY TERM, 1884.

SALE-FRAUD-CHANGE OF POSSESSION AGENT.H. while running a grocery store failed; the defeud* Appearing in 56 Vermont Reports.

ants bid off his goods, set him up in the same place, in the same business, as their agent, and usually ap proved and assumed payment of his orders for new goods; but in the hurry attending this transaction did not assume payment. By the terms of the contract, by which H. was made agent, he could order such goods as he needed; but his orders were to be first submitted to, and approved by some one of the defendants; and this was known to the plaintiffs' agent making the sale. The plaintiffs made their charge to the defendants, intended to sell to them, and H. intended to buy for them, and not for himself. The goods were shipped to H., not as agent, and were attached before coming to his possession by one of his creditors; and thereupon the defendants claimed to be the owners. Held in an action for the price of the goods, that defendants were liable; and that the rule as to a change of possession did not apply. Brooks v. Fletcher. Opinion by Taft, J.

NUISANCE-INJUNCTION.-To entitle a person to relief in his own right by injunction to abate a public nuisance, he must show that he has suffered damage distinct from that of the general public. The injury must be actual, substantial, not technical, nor inconsequential; thus the parties owning adjoining lots in a village, the court refused to enjoin the defendant from building a wall in front of her own lot, although partly constructed within the surveyed limits of the highway, and obstructed the orator's carriage road from his house to the main street, when a few rods distant he had another way equally available, and in daily use; and although the obstructed way added somewhat to the beauty of the premises, the court holding the injury to be a mere fancy. Stanford v. Lyon, 37 N. J. Eq. 94; High Inj., § 762, note 5; 8 Sim. 194; Bigelow v. Hartford Bridge Co., 14 Conn. 565. Sargent v. George. Opinion by Taft, J.

MASTER AND SERVANT QUALIFICATION OF SERVANT-"ON TRIAL · DISCHARGE QUESTION FOR JURY. (1) It is error for the court to direct a verdict, when evidence is given tending to prove a material fact; thus the defendant discharged the plaintiff, who was working in his store " on trial," before the expiration of the time for which he was employed. The defeudant's evidence tended to prove that the plaintiff was impertinent to him, discourteous to customers, and disliked by the other help, by reason of his overbearing manners; that he was inefficient, incompetent, unable to count, money with reasonable accuracy, or to transact any business properly, and that he was late in getting at his work in the morning. Held, that it should have been submitted to the jury, to find whether the defendant had cause to discharge the plaintiff. Jones v. Booth, 10 Vt. 268; Wemet v. Lime Co., 46 id. 458. (2) The defendant had the right to expect, that he would be prompt, courteous, and would have a reasonable amount of tact to get along with help; and that he had ordinary business qualifications. Fairbanks v. Nelson. Opinion by Veazey, J.

NEGLIGENCE-WHEN NOT LIABLE FOR CONTRACTOR'S -DITCH IN STREET.-D. owned a house in the city of Burlington. The tenant who occupied the house sent to G., a plumber, to repair the drain; and he, after examining it, decided to connect it with the public sewer. D. lived in California; and the defendant, who was her agent only for the purpose of collecting and transmitting the rent, when called upon by G., told him that he would pay the expense for connecting the drain with the sewer, but at the same time expressly informed G. that he took no responsibility in directing the work, and that authority to proceed with it must come from some other source than himself. G. dug a ditch in the street and left it without any guard, and

NATIONAL BANK-USURY-PENALTY-STATE COURT -JURISDICTION.-The Federal statute provides the only remedy, and that by way of penalty, against a National bank, for the taking of usury; thus the plaintiff had brought a suit in the United States court to recover the penalty prescribed by the said statute, and had obtained a judgment. Held, that he could not thereafter maintain an action of assumpsit in a State court to recover the excess above the legal interst paid to the bank. In Farmers and Mechanics' National Bank v. Dearing, 91 U. S. 29, the plaintiff, a National banking association, organized under the National Bank Act, and located and doing business in the State of New York, knowingly discounted the note in suit at a greater rate of interest than was allowed by the laws of the State, and the question was, whether that made the note void, as provided by the State statute. The Court of Appeals of New York, following its decision in First National Bank of Whitehall v. Lamb, 50 N. Y. 95, held that it did; but the Supreme Court of the United States reversed that judgment, and held that it did not. After this decision the Court of Appeals in National Bank of Auburn v. Lewis, 75 N. Y. 516, held that usurious interest could be recovered by way of set-off or abatement in an action on the note usuriously discounted. Then came Barnet v. National Bank, 98 U. S. 555, holding the contrary, and that the remedy, given by the National statute for the wrong of taking usurious interest, is a penal suit, to which the party aggrieved or his legal representative must resort; that redress can be had in no other mode or form of procedure; that as the statute giving the right prescribes the redress, both provisions are alike obligatory on the parties; that the mode of redress is by suit brought specially and exclusively for that purpose, in which the sole issue is the guilt or innocence of the accused, without the presence of any extraneous facts that might confuse the case and mislead the jury to the prejudice of either party. On the announcement of this decision the Court of Appeals ordered a reargument in National Bank of Auburn v Lewis, and modified its former decision therein in conformity therewith, holding it to be controlling. Peterborough National Bank v. Childs, 133 Mass. 248, is to the same effect. Prior to the decision in Barnet's case, the Supreme Court of Pennsylvania had held the

other way in Lucas's case, 28 P. F. S. 228, and other cases; but after Barnet's case it held in conformity therewith in National Bank v Dushane. 96 Penn. St. 340, treating all its former decisions to the contrary as overruled, and said that the defendant's only remedy was by a penal action for twice the illegal interest paid. The case of National Bank of Clarion v. Gruber, 91 Penn. St. 377, is much in point. It was debt, brought on March 4, 1876, to recover twice the amount of all payments of illegal interest made to the bank within two years next before the commencement of the action, and also all excess above legal interest paid during the additional period of four years before the 4th of March, 1874. The plaintiff declared specially for double the interest, and added the common counts in debt on which to recover the excess. The defendant contended below that there could be no recovery for any moneys claimed in the action except for the penalty; but the court ruled otherwise, and held that recovery could be had for the excess over the legal rate paid during the four years prior to March 4, 1874, as well as for twice the amount paid in excess within two years from the time of the commencement of the suit. The Supreme Court held this error, and said that from Barnet's case "it appears certain that neither by set-off nor original action can interest over legal rate, paid to a National bank, be recovered except by way of penalty, as prescribed by the act of Congress of June 3, 1864." Gruber v. National Bank of Clarion, 87 Penn. St. 465; Dow v. Irasburgh Nat. Bank, 50 Vt. 112, distinguished.

INSURANCE LAW.

ACCIDENT-PAYMENT OF PREMIUM-PRESUMPTIVE NOTICE FORFEITURE — WAIVER.- Payment of the premium due on an insurance policy will be presumed to have been made out of a fund provided and assigned for that purpose, until notice of non-payment is given to the insured. A forfeiture for non-payment of premium is inserted in the policy for the benefit of the insurer, and may be waived by him and courts will find a waiver upon slight evidence, when the equity of the claim made is under the contract in favor of the insured. It is claimed by plaintiff's counsel, and I think with much force, that under the facts and findings in the case the defendant waived the legal effect of non-payment of the premium by the terms of the contract, by the course it pursued with the order and claim transferred to it by the insured for payment. Baker v. Union Life Ins. Co.. 6 Abb. Pr. (N. S.) 144; 1 Big. L. & A. Ins Cas 595. A forfeiture for non-payment of premium is inserted in the contract for the benefit of the insurer. It may be waived by the company. A forfeiture is not favored either at law or in equity, and a provision for it in a contract will be strictly construed and courts will find a waiver upon slight evidence, when the equity of the claim made, as in this case is under the contract in favor of the insured. Young v. Life Ins. Co., 4 Big. L. & A. Ins. Cas. 1; Miller v. Brooklyn Ins. Co., 2 id. 35; Bouton v. Am. M. L. Ins. Co., 25 Conn. 542; Phoenix Ins. Co. v. Lansing, 50 N. W. Rep. 22; Crane v. Dwyer, 9 Mich. 350; White v. Port Huron & M. R. Co.. 13 id. 356; Westchester F. Ins. Co. v. Earle, 33 id. 143: People v. Fire Dept. of Detroit, 31 id. 458. Sup. Ct. Mich., Oct. 15, 1884. Lyon v. Travelers' Ins. Co. Opinion by Sherwood, J. (20 N. W. Rep. 829.)

FIRE-PAYMENT OF PREMIUM-WAIVER.-An insurance company may waive the payment of the premium at the time it is due, and if it is afterward paid after a