disputed, it is competent for the court to direct an issue in which the truth of those facts may be ascertained by a jury, and such issue may be put into any form by which the object may be more readily attained. Stewart v. Stocker, 1 Watts, 135.

FORMER RECOVERY.

1. (Against sheriff does not discharge sureties.) A former recovery against the sheriff alone, without satisfaction, is no bar to a subsequent joint action on his bond against himself and his sureties, for the same default. Treasurers v. Bates, 2 Bailey, 363.

2. (Between different parties.) A plea of former recovery by plaintiff, in a joint action against defendant and another, for the same injury, is insufficient without an averment of satisfaction. Park v. Hopkins, 2 Bailey, 411.

FRAUD.

1. (Goods obtained by fraudulent pretences.) In trover for goods sold by the plaintiff to a vendee under whom the defendant derived his title, it was held, that the testimony of persons who had sold goods to the same vendee about the same time, showing that he was then insolvent, and that he knew it, and that he had no reasonable expectation of paying for the goods purchased by him, is competent evidence to prove that his purchase from the plaintiff was fraudulent. Rowley v. Bigelow, 12 Pick. 307.

2. (The same-sale voidable.) A fraudulent purchase of goods, accompanied with delivery, is not void, but voidable only, at the election of the vendor, and until it is avoided the vendee has power to make a valid sale of the goods to a bona fide purchaser having no notice of the fraud. Ib.

3. (Vendor retains possession.) Where, after an absolute sale, the vendor retains possession, it is not a sufficient explanation to rebut the presumption of fraud, that the vendee was the sister in law of the vendor, and lived with him. Smith v. Henry, 2 Bailey, 118. 4. (Whether law or fact.) What constitutes evidence of fraud is a legal question; and where badges of fraud are discovered, it is the duty of the presiding judge to say to the jury, that the evidence establishes a case of fraud, unless they are satisfied from the explanations given, that no fraud actually existed. If he merely charges that no fraud was proved, a new trial will be awarded. Ib. 5. (Gift as against creditors.) Where the donor, at the time of making a voluntary gift, is indebted beyond small sums for the current expenses of his family, or debts inconsiderable in comparison with the value of his property, the gift is fraudulent and void as to existing creditors. Nor will the subsequent payment of the antecedent

debts, in all cases, render the gift valid, even as against subsequent creditors: If the old debts are discharged by contracting new ones, or they remain until, out of the wreck of the donor's estate, they are paid off on account of their priority, and the donor was, in fact, never free of debt, from the date of the gift, it is void as to subse-* quent, as well as antecedent creditors. M'Elwee v. Sutton, 2 Bailey, 128.

6. (Same.) A voluntary conveyance of the whole of the donor's visible property is void as to existing creditors, although the only existing debt proved is not of large amount, and the donor is intitled to an interest of much greater extent in an undivided estate, which remains in the hands of the executors, and is in litigation in the Court of Equity. Cordery v. Zealy, 2 Bailey, 205.

7. (Conveyance.) A sale of lands, made for the purpose of defeating the recovery of damages for a breach of promise of marriage, is fraudulent and void, if the purchaser have notice of the fraudulent intent; although the agreement for the sale was made before suit brought for the breach of promise, and although the purchaser paid an adequate consideration, and went into immediate possession, and the whole of the purchase money was in fact applied to the payment of bona fide creditors of the vendor. Lowry v. Pinson, 2 Bailey, 324.

8. (Gifts by woman before marriage.) A provision for the children of a former marriage seems to be an exception to the rule, that secret and voluntary conveyances, made by a woman in contemplation of marriage, are fraudulent upon the marital rights, and therefore void. Jones v. Cole, 2 Bailey, 330.

FRAUDS, STATUTE OF.

1. (Consideration.) The words 'value received,' are a sufficient expression of the consideration for an undertaking to pay the debt of another, if indeed it be at all necessary that the consideration should be expressed in writing. M'Morris v. Herndon, 2 Bailey, 56. 2. (Contracts to be performed within a year.) The provision in the 4th section of the statute of frauds, that agreements, which are not to be performed within one year from the making, must be in writing, applies only to cases where the whole contract is executory, and not to cases where it has been performed by one of the parties. Bates v. Moore, 2 Bailey, 614.

GUARANTY.

1. (Collateral.) The defendant agrees, in writing, 'to be responsible and pay to the plaintiffs for whatever goods have been or may be delivered to C. within one year.' The plaintiffs delivered goods to

C. within the year and took his negotiable note for the price. It was held, that the undertaking of the defendant was collateral only, and that his liability as guarantor was not discharged by the plaintiff's taking C.'s note. Babcock v. Bryant, 12 Pick. 133.

2. (Notice.) Held also, that the defendant was not liable until after reasonable notice of the amount of goods delivered by the plaintiffs to C., and a special request to pay for them. lb.

HIGHWAY.

(Mail coach.) A stage coach passing upon a public highway, is protected by an act of congress from wilful and wanton obstruction or delay; but in every other respect it is on a footing with all other carriages. Bolton v. Colder, 1 Watts, 360.

A traveller may use the middle or either side of a public road at his pleasure, and without being bound to turn aside for another travelling in the same direction, provided there be convenient room to pass on the one hand or on the other. Ib.

HUSBAND AND WIFE.

(Promissory note given to a feme covert.) A promissory note given to a feme covert for her separate use, for the consideration of her distributive share in an intestate estate, becomes immediately the property of the husband. Commonwealth v. Manley, 12 Pick. 173. IMPLIED WARRANTY. (Of an endorsement.) If the holder of a promissory note sell or barter it, with the name of a third person indorsed, there is an implied warranty on his part, that the indorsement is genuine, unless it appear, that the transferee took it without reference to that security, or had agreed to run the risk of the indorsement being genuine. Strange v. Ellison, 2 Bailey, 385.

INDICTMENT.

1. (Autrefois acquit.) Unless the first of two indictments was such as the prisoner might have been convicted upon, by proof of the facts contained in the second, an acquital or conviction on the first can be no bar to the second. Commonwealth v. Roby, 12 Pick. 496. 2. (Plea in bar.) A conviction upon an indictment for an assault with intent to murder, cannot be pleaded in bar to an indictment for murder; for the offences are distinct in their legal character, and in no case could a party on trial for the one be convicted of the other. Ib. 3. (Felony and misdemeanor.) Upon an indictment for a felony, the prisoner cannot be convicted of a misdemeanor. Ib.

4. (Accessary.) It is not necessary, in an indictment against an accessary before the fact in a felony, to set out the conviction or execution of the principal. State v. Sims, 2 Bailey, 29.

5. (Certainty.) In an indictment for murder, held, that the wound was sufficiently described as 'one mortal bruise,' without stating its length, breadth, or depth; and as having been given on the head, without stating what part of it. State v. Crank, 2 Bailey, 66.

6. (Same.) General charges in an indictment of violating public decency are insufficient to authorise any judgment against the defendant. The specific acts and circumstances of indecency must be set out. State v. Brunson & Miller, 2 Bailey, 149.

INFANT.

1. (Promise after coming of age.) An infant made a note, and after age, on payment being demanded, said, 'I will pay it as soon as I can make it, but I cannot do it this year; I understand that the ho!-' der is about to sue it, but she had better not:' Held, an affirmation of the contract, and that an action lies presently. Bobo v. Hansell, 2 Bailey, 114.

2. (Acquiescence on coming of age.) An infant released a contract with an adult, on receiving a consideration agreed on between them and on his becoming afterwards dissatisfied with the settlement, the matters in dispute were submitted to arbitrators, who made an award confirming the release. After coming of age, the infant frequently declared that he was satisfied with the settlement; and he retained the property, which he had received in consideration of the release: but subsequently brought an action on the contract. Held, that his declarations, and retaining the property, amounted to a confirmation of the release, and barred his action on the contract: Eubanks v. Peak, 2 Bailey, 497.

INSOLVENT LAW.

1. (Constitutionality.) There being no general bankrupt law of the United States in force, the law of a State, providing for the discharge of an insolvent debtor, upon the surrender of his property, is a constitutional law, so far as it operates upon future contracts made within such State, by citizens thereof, and which contracts, by their means are to be performed within the limits of such State. Betts v. Bagley, 12 Pick. 572.

2. (Discharge, where judgment had been obtained in another State.) Where a judgment on a contract was obtained in this State, and afterwards the defendant obtained a discharge under such insolvent law, embracing the contract, it was determined, in a suit here upon the judgment, that the court would look behind the judgment to the original contract, and that the discharge was a bar to the action. Ib. INSURANCE.

1. (Agreed value of a vessel in a policy.) In determining the question 15

VOL. XIV.-NO. XXVII.

whether the cost of repairing a vessel which is insured in a valued policy, would amount to more than half the value of the vessel, so as to constitute a constructive total loss, the sum agreed on in the policy as the value of the vessel, is prima facie, and in the absence of all other evidence, the true value. Winn v. Columbian Ins. Co. 12 Pick. 279.

2. (Abandonment-half amount insured.)

Upon the question whether the sale of a vessel by the master was a matter of necessity, the jury were instructed to consider how an owner of a vessel would have acted under like circumstances; and it was held, that this was not an unfit illustration, for the jury must have understood the instruction as referring to a prudent and discreet owner and not to a rash and careless one. lb.

3. (Hostile capture.) A ship belonging to a citizen of the United States, being insured, sailed on a voyage from Buenos Ayres to China and back, with a cargo belonging to citizens of Buenos Ayres, and, after entering the river La Plata on her return voyage, the master being ignorant that war had commenced between the Brazils and Buenos Ayres, she was taken by a Brazilian squadron blockading the port of Buenos Ayres, and sent under a prize master to Rio Janeiro, where prize proceedings were instituted by the captors, and during the pendency of the same she was seasonably abandoned to the underwriters. It was held, that the capture was hostile; that the case did not come within the perils excepted in the policy, of illicit trade, or trade in articles contraband of war, there being no evidence that the ship was violating any of the laws of trade of Buenos Ayres, or that she had on board articles contraband of war; that she was not violating the belligerent rights of Brazil, as she had no notice of the blockade; and, consequently, that the underwriters were liable for the loss. Lovering v. Mercantile Ins. Co., 12 Pick. 348.

4. (Valued policy.) Where a vessel insured in a valued policy, is captured as prize and abandoned to the underwriters, and is redelivered on bail upon a valuation made by order of the prize court, the amount of damages in a recovery for a total loss, is according to the valuation in the policy, and not according to that made in the prize court. lb.

5. (Abandonment.) Where the insured is informed of the loss of his vessel by capture, he need not abandon to the underwriter: but may wait to ascertain whether his property is condemned, and then claim to be paid. Maryland and Phanix Insurance Com. v. Bathurst, 5 Gill & Johnson, 159.