maker. His liability to pay interest and principal, as each respectively falls due, arises from his contract. It is his contract that he will make payment whenever the maker is in default, and he, the indorser, is duly notified thereof.

It is true that interest is an incident, an increment of the principal, and that the holder may wait for it until his note matures and then collect it with the principal. He may however, by the contract, collect it as it falls due of the maker, and upon the latter's default of the indorser. The courts of England have never recognized the American doctrine that interest is a mere incident, an outgrowth of the principal, and in many cases follows and is recoverable as such without an express contract. Until 37 Henry, chapter 9, it was unlawful to demand interest even upon a contract to pay it. Since the case of De Havilland v. Bowerbank, 1 Campb. 50, interest has been allowed in England upon express contracts therefor and not otherwise. Where there is such a contract interest stands like the principal in respect to the rights and liabilities of an indorser. Sedgw. Dam. 383; Selleck v. French, 1 Conn. 32; 6 Am. Dec. 185, note. In Jennings v. Brush Co., reported in 20 Can. L. J. 361, in a learned | opinion by McDowgall, J., it was held that, where there was an express contract to pay interest annually or semi-annually, it was not different from a contract to pay an installment of the principal itself, and that notice to the indorser of the maker's default was necessary to charge the indorser with it. In that case the indorser was released from payment of the first two half-yearly installments of interest for want of demand and notice. While we adhere to the doctrine laid down in Bank v. Doe, supra, that interest is in general an incident of the debt, it is inconsistent to hold that, where the indorser is himself a party to the original contract to pay interest annually, as in the case at bar, by his indorsement he guarantees the performance of that contract. Any other holding would make the indorser liable for only a part of the maker's contract. The case of Codman v. Railroad Co., 16 Blatchf. 165, has been brought to our attention. The trustees and managers of the Vermont Central Railroad Company and the Vermont and Canada Railroad Company issued notes to the amount of $1,000,000, in sums of $1,000 each, payable to the defendant company in twenty years from their date, with interest semi-annually on presentation of the interest coupons, made payable to bearer, and attached to the notes. On each note was this indorsement, signed by the treasurer of the defendant under its seal: “For value received, the Vermont and Canada Railroad Company hereby guarantee the payment of the within note, principal and interest, according to its tenor, and order the contents thereof to be paid to the bearer." The coupons were not indorsed. The notes were put on the market, and the plaintiff purchased fifty of them, and subsequently, after due demand, notice and protest, brought this suit to recover the amount of two coupons on each of his notes, the notes themselves not having matured. Without passing upon the question whether the guarauty was negotiable and available to the plaintiff as a remote holder, Wheeler, J., among other questions that arose in the case, decided that the indorsement was a contract of indorsement running to the bearer, | and that demand, notice and protest fixed the liability | of the indorser to pay the coupons, and gave judgment for plaintiff for the amount of the coupons. The Supreme Court of the United States has repeatedly held that the statute of limitations begins to run upon interest coupons payable annually or semi-annually from the time they respectively mature, although they remain attached to the bonds which represent the principal debt. Amy v. Dubuque, 98 U. S. 470. Where the indorser is the payee on the note there would seem to

be no difference in his liability in respect to interest, whether the maker's promise to pay it is contained in the body of the note or in interest coupons not indorsed, the notes to which they are attached being indorsed, and the coupons being mentioned in the notes, but it is unnecessary to decide that question here. Upon the facts found by the County Court this action cannot be maintained, for the reason that the plaintiff never fixed the defendant's liability to pay the three years' accrued interest. It does not even appear that the makers refused payment of it or that they were requested to pay it before this suit was brought; therefore nothing is due from the defendant to the plaintiff.

Judgment affirmed.

Ross, C. J. I concur in the disposal made of this case, and in most of the grounds and reasoning of the opinion. But I do not see my way clear to concur in holding that an indorser upon a promissory note, pay. able on time, with the interest annually, can be made chargeable for the payment of the interest before he can be and is charged with the payment of the principal. By placing his name on the back of the note as an indorser, without making any limitation upon his indorsement, he guarantees its payment upon condition that the indorsee, when the time named in the note for its payment arrives, shall present it to the maker and demand its payment, and if the maker fails to make payment, shall seasonably notify him of such failure. When this is done, the indorser promises to pay whatever of principal and interest is then due upon the note. This condition attaches primarily to the principal of the note. I think it attaches to the interest only as it becomes a part of the principal. It seems to me to be illogical and pressing the indorser's conditional undertaking beyond its proper scope and office to hold that he can have his ability fixed to pay for the use or legal rental of the principal before his liability to pay the principal is fixed. Interest is legal damage, fixed usually by statute, for the detention and use of money. As soon as the money is due and payable the law implies damage for its detention and use. It may also arise from the contract for the detention and use of the principal before it is payable by the terms of the contract. When stipulated to be paid annually, it may be collected from the maker of the note at the end of each year, because such is his contract. It is an incident and outgrowth from the principal. The promise to pay it, whether implied or expressed, is a dependent promise. It is attached to and arises from the promise to pay the principal. When the interest is stipulated to be paid annually, and before the principal is payable, the maker, when sued for the annual interest, because his promise to pay it is dependent upon his promise to pay the interest, may set up any defense to the suit for recovering the annual interest, which he could if the suit were for the recovery of the principal, such as fraud in the inception of the note, or want or failure of consideration, or duress, or that his liability for the principal is conditional, the terms of which have not been complied with. If he defeats the action it will estop the holder from recovering the principal when due, and vice versa. In 1 Herman on Estoppel, 231, it is said: "So in an action for interest due on a bond, a judgment for the plaintiff for the amount of interest claimed will be conclusive evidence in an action on the bond, and estop the defendant from alleg ing fraud, for the reason that it was a defense which was available in the former suit, and the presumption is that it was so used," citing French v. Howard, 14 Ind. 455; Van Dolsen v. Abendroth, 43 N. Y. Super. Ct. 470; Preble v. Supervisors, 8 Biss. 358, and Edgell v. Sigerson, 26 Mo. 583; Cleveland v. Creviston, 93 Iud. 31.

The opinion recognizes this intimate, attached and dependent relation of the promise to pay the interest annually to the promise to pay the principal, from which the interest springs. It recognizes that the statute of limitations does not begin to run on such promise to pay interest annually until the principal falls due, in accordance with Bank v. Doe, 19 Vt. 463. This must be because, until severed by enforced collection or payment, interest is but an incident and dependent of the principal. It also recognizes this reation in holding that the indorsee may allow the interest to accumulate and may fix the indorser's liability to pay it by a proper demand, default and notice in regard to the principal when that falls due. This is because liability for the principal carries its dependencies. I concur in these holdings. They are supported by the decisions cited in the opinion. But they rest, and in my judgment can rest, only on the basis that the promise to pay the interest annually, both for its consideration and enforcement, is dependent upon the promise to pay the principal. The opinion also holds that the liability incurred by the indorsement is conditional; that that condition attaches to the entire note, and that the liability of the indorser must be fixed by demand, default and notice in regard to the interest payable from the maker yearly, as well as in regard to the principal. It then seems to conclude that, because the indorsee can lawfully demand and collect of the maker, whose promise to pay the principal is absolute, upon his dependent but yet absolute promise to pay the interest annually, he can, by proper demand, default and notice, collect such annual interest of the indorser whose promise and liability to pay the principal is conditional, and cannot as yet be made absolute, and whose promise to pay the annual interest it has already held is dependent upon his promise to pay the principal, and therefore in my judgment takes the condition attached to his liability to pay the principal. It is at this point that I fail to follow the reasoning of my associates. Here they assume, as I think, and proceed upon the basis that the indorser's implied promise to pay the annual interest is not dependent, but independent, like what it would be if it were an installment of the principal. The holdings in the opinion that the indorser's liability for the accrued annual interest may be made absolute by a proper demand, default and notice in regard to the principal when it falls due, and that it may also be made absolute by a proper demand, default and notice yearly, result in holding that the maker's promise to pay the interest annually which he indorses is both dependent upon and independent of his promise to pay the principal. I do not think that it has this double and inconsistent character, but only the former. If it be independent, must not demand and default be made and notice given yearly, or the indorser become discharged? And if the demand and default be made, and notice given annually, must not the statute of limitations begin to run from date of such demand? I think so. The result of giving this double character to the promise to pay interest annually will lead, I think, to some difficult legal problems. If the note is to mature at the end of twenty years, and the payee holds it, and allows the interest to accumulate for ten years, and then having indorsed it sells it, the indorsee must wait for the accumulated interest until the note falls due, because the maker's promise and the indorser's liability in regard to that interest is dependent upon the indorser's liability for the maker's promise to pay the principal, which is still conditional, and for that reason the indorser's liability to pay the accumulated interest is conditional, and will remain so until it is made absolute for the principal; but when the eleventh year's annual interest falls due, the indorsee may at once, by due demand, default and notice, fix the in

dorser's liability to pay that year's interest, and may enforce its payment by suit, while the indorser's liability for the payment of the principal from which the year's interest springs, cannot be for years be made absolute, and may never be. After the indorser's liability for the payment of the year's interest has thus become fixed by suit, on what legal principles gov erning res judicata could the indorser defend, in a suit brought, without further demand, default and notice, at the maturity of the note, for the enforcement of the payment of the principal and the ten years' accumu lated interest? The only decision relied upon for the holding of my associates is from 16 Blatchford, supra. I do not regard that in point. The guaranty was writ ten instead of implied. The relatiou of the indorser to the obligation was exceptional, it having been given by its receivers and managers. The interest was expressed in separate coupons, which for some purposes are treated as independent obligations. The statute of limitations runs on them generally from their ma turity. Amy v. Dubuque, 98 U. S. 470. In this respect they are unlike the promise in the note to pay the interest annually, as held in Bank v. Doe, 19 Vt. 463. I do not think that the indorsee has the election to fix the indorser's liability for and recover of him annually such yearly interest, or to wait and fix it by proper de. mand, default and notice in regard to the principal. I think his liability can only become absolute for the payment of the incident or outgrowth of the debt, when it becomes absolute for the payment of the principal from which that incident outgrowth springs. The opinion of this branch of the case is made to rest upon the ground that the indorser's undertaking, ou due demand and notice, is to make good to the indorsee any failure of the maker to perform the coutract, and in that the maker has promised to pay the interest at the end of each year the indorser has likewise so undertaken upon proper demand and notice. But his implied contract, being conditional in regard to the payment of the principal, I think is conditional also as to any incident or outgrowth of the principal, so long as it is conditional in regard to the payment of the principal, and that he only becomes absolutely bound to pay the interest at the end of each year when be becomes bound absolutely to pay the principal. When so bound for the payment of the principal then his obligation to pay the interest at the end of each year attaches, in respect both to the interest then accrued and the interest which may thereafter accrue. I would modify the opinion in the particular indicated.

NEW YORK COURT OF APPEALS ABSTRACTS.

APPEAL-PRESUMPTION. LEASE-IMPLIED COVE

NANT MISREPRESENTATION-PLEADING.

- (1) Where neither party asks to have any question of fact submitted to the jury, but each asks that a verdict be directed in his favor, the court is authorized to deter mine the facts in issue, and on appeal the disputed facts are deemed to have been determined in favor of the party for whom the verdict is directed. Kirtz v. Peck, 113 N. Y. 222; Dillon v. Cockroft, 90 id. 649; Provost v. McEncroe, 102 id. 650. (2) There is no implied covenant in the lease of the whole of an unfurnished dwelling that the dwelling is fit for habitation. Franklin v. Brown, 118 N. Y. 110. In Smith v. Marrable, 11 Mees. & W. 5, a contrary rule was laid down by Baron Parke. That case arose out of a contract to let a furnished dwelling for six weeks at eight guineas per week. The tenant moved in, but found the house so infested with bugs that it was uninhabitable, and at the end of the first week left, paying the rent for that week. In an action brought, it was held, in the opin

ion delivered by Baron Parke, concurred in by Barons Alderson and Gurney, "that if the demised premises are incumbered with a nuisance of so serious a nature that no person can reasonably be expected to live in them, the tenant is at liberty to throw them up. This is not the case of a contract on the part of the landlord that the premises were free from this nuisance. It rather rests in an implied condition of law, that he undertakes to let them in a habitable state." Chief Baron Abinger concurred upon the ground that “a man who lets a ready-furnished house surely does so under the implied condition or obligation call it which you will that the house is in a fit state to be inhabited." The opinion of Baron Parke was rested on the authority of Edwards v. Etherington, Ryan & M. 208; 7 Dowl. & R. 117, and Collins v. Barrow, 1 Moody & R. 112, both of which cases, together with Salisbury v. Marshal, 4 Car. & P. 65, are expressly overruled by Hart v. Windsor, 12 Mees. & W. 68, in which Parke, B., said: "We are under no necessity of deciding in the present case whether that of Smith v. Marrable be law or not. It is distinguishable from the present case on the ground on which it was put by Lord Abinger, both on the argument of the case itself, but more fully in that of Sutton v. Temple, 12 Mees. & W. 52, for it was the case of a demise of a ready-furnished house for the temporary residence at a watering place. It was not a lease of real estate merely. But that case certainly cannot be supported on the ground on which I rested my judgment.' Smith v. Marrable was decided at Hilary term, 1843, and Hart v. Windsor and Sutton v. Temple at Michaelmas term of the same year. The rule laid down in Smith v. Marrable by Abinger, C. B., as applicable to furnished houses, has been followed in Campbell v. Lord Wenlock, 4 Fost. & F. 716, and Wilson v. Hatton, 2 Exch. Div. 336; but the rule as stated by Parke, B., has not been followed in England or in this State. Franklin v. Brown, 118 N. Y. 110. The defendants cannot escape liability for rent on the ground that the law implied a covenant that the dwelling was fit for habitation. (3) Where the only representation made on the part of the lessor in renting a dwelling was that the plumbing was "all in good condition; that they had fixed it as they thought it ought to be," and it was not shown that the lessor or her agent knew that the representation was false, the lessor cannot be held guilty of fraudulent representation or concealment, although in fact the plumbing was defective. In case the owner of a dwelling knows that it has secret defects and conditions rendering it unfit for a residence, and fraudulently represents to one who becomes a tenant that the defects and conditions do not exist, or if he fraudulently conceals their existence from him, the lessee, if he abandons the house for such cause, will not be liable for subsequently-accruing rent. Wallace v. Lent, 1 Daly, 481; Jackson v. Odell, 12 id. 345; Rhinelander v. Seaman, 13 Abb. N. C. 455; Cesar v. Karutz, 60 N. Y. 229. (4) Where it does not appear that the plumbing of a dwelling had not been fixed as stated, nor that the statement that it was "all in good condition" was made without actual or supposed knowledge of its condition or in bad faith, the lessor cannot be held liable on the ground that she was bound to know whether or not the statement was true. In case a party, for the purpose of inducing another to contract with him, states on his personal knowledge that a material fact does or does not exist, without having knowledge whether the statement is true or false, and without having reasonable grounds to believe it to be true, he is liable in fraud, if the statement is relied on, and is subsequently found to be false, although he had no actual knowledge of the untruth of the statement. Bennett v. Judson, 21 N. Y. 238; Marsh v. Falker, 40 id. 562; Oberlander v. Speiss, 45 id. 175; Wakeamn v.

Dalley, 51 id. 27; 2 Pom. Eq. Jur., §§ 887, 888; Story Eq. Jur., § 193. (5) The lessee of a dwelling cannot escape liability for rent on the ground that the statement of the renting agent as to its condition amounted to a warranty, when it is not so pleaded in the auswer. Second Division, April 19, 1892. Daly v. Wise. Opinion by Follett, C.J. 11 N. Y. Supp. 953, mem., affirmed. INSURANCE-ACCIDENT-LIMITATIONS. Where an

accident insurance company undertakes to pay the insured certain amounts in case of bodily injury, and in case of death resulting from such an injury to pay to the wife of the insured a certain sum, and the certificate provides that no suit shall be brought to recover any sum unless commenced within one year from the time of the alleged accidental injury, an action may be brought on the policy by the widow of the insured more than one year after the accident, if it is brought within one year after the insured's death, since the widow's right of action does not accrue, and the prescribed period of limitation begin to run against her, until the death of the insured. Steen v. Insurance Co., 89 N. Y. 315; Mayor, etc., of New York v. Hamilton Fire Ins. Co., 39 id. 45; Hay v. Insurance Co., 77 id. 235; King v. Insurance Co., 47 Hun, 1. Second Division, April 19, 1892. Cooper v. United States Mut. Ben. Ass'n. Opinion by Haight, J. 10 N. Y. Supp. 748, affirmed.

LIFE-ACTION ON POLICY-EVIDENCE.-Where in an action on an insurance policy, which requires the beneficiary simply to furnish proof of the death of the insured, the beneficiary introduces in evidence, without qualification, the sworn certificate of the physician who attended the insured in his last illness, the statements in such certificate are evidence to show that the answers made by the insured to defendant's medical examiner on his application, and warranted by him to be true, were false, and that there was, in consequence, a breach of warranty, the application being part of the contract. Second Division, April 19, 1892. Helwig v. Mutual Life Ins. Co. Opinion by Bradley, J. 12 N. Y. Supp. 172, reversed.

LIFE-FALSE REPRESENTATIONS.-In an action on a policy of life insurance, the defense was a breach of warranty by the insured in falsely answering in his application that he had never had consumption. The policy was issued on March 20, and insured died of acute tuberculosis October 7, next following. A physician testified for defendant that in February he treated insured for consumption, and at that time discovered what are known as Koch bacilli." The presence of bacilli was confirmed by another physiciau. A sister of insured testified that in February insured suffered from a cold, but after treatment his cough disappeared and he was apparently healthy, continuing his usual employment as a laborer until within a few weeks of his death. Defendant's examining physician testified that on March 19 he made a thorough examination of insured by the usual tests, and found his lungs in a perfectly healthy condition; that he talked with insured several weeks later and saw nothing to indicate any lung trouble or disease of any kind. Held, that it was for the jury to determine whether insured was afflicted with consumption when the insurance issued. April 12, 1892. Tucker v. United Life & Acc. Ins. Ass'n. Opinion by Earl, C. J. 16 N. Y. Supp. 953, affirmed.

closed, and the barrels on deck well protected by canvas; and the defendant introduces no evidence in | contradiction of such testimony, it is error to nonsuit the plaintiffs on the ground that the boat was improperly laden. (2) A vessel, with a cargo of lime, was towed about six miles, in fair weather and without accident, when the lime slacked and fire set in. The uudisputed testimony of the owner showed that the boat was built in 1880 or 1881, had been kept in good order, and was thoroughly overhauled late in the summer before the loss. There was no evidence that the slacking of the lime was caused by a leak in the boat, and but one inch of water was found in the hold when the fire was discovered. Held, that the evidence was insufficient to justify the court in holding that the slacking was caused by a leak of sufficient size to make the boat unseaworthy. (3) The captain of a vessel discovered smoke issuing from the hold, and found that the cargo of lime was slacking; the deck was hot, the pitch boiling out of its seams, and crackling sounds were heard in the hold. The lime was hurriedly unloaded, and the boat was sunk in order to prevent a total loss by fire. It was found that the sides of the boat were charred, and the barrels all swelled up. Held, that the evidence was sufficient to justify the submission of the question of fire to the jury. (4) Where the agent who issued a marine insurance policy has examined the wreck at the company's expense, and obtained and forwarded the owners' statement concerning the loss, which is retained by the company, and the owners afterward verified formal proofs of loss, and upon receiving notice from the company's adjuster that he would raise the wreck, executed an assignment to the company of their interest in the boat, which was delivered to and retained by the company, it is error to hold that the boat was not abandoned by the owners, and that the company had not accepted the abandonment. Second Division, April 19, 1892. Singleton v. Phenix Ins. Co. Opinion by Follett, C. J. 11 N. Y. Supp. 141, affirmed.

the

LANDLORD AND TENANT-FIXTURES.-Whe lessor of a factory, under a lease containing a covenant that the lessee shall not make any alteration in the premises without the lessor's consent, refuses to replace an unsafe engine, but offers to allow the lessee to put in a new engine on condition that it shall belong to the lessor, and the lessee, without assenting to such offer, places a new engine on the old foundation, with out injury to the premises, and with the intention of removing it upon the expiration of his term, such engine does not become part of the freehold, but remains the property of the lessee. It is argued that the consent of the plaintiff was essential to the right to do what was done in that respect, and therefore a promise on the part of the lessee to comply with the condition upon which the permission of the plaintiff, as expressed in his letter, was given, was necessarily implied. This would be so if the lessee must be deemed to have accepted the terms upon which the plaintiff's consent appeared by his letter to have been given. Then there would have arisen a contract rendered effectual by performance. L'Amoreux v. Gould, 7 N. Y. 349; Willetts v. lusurance Co., 45 id. 45; White v. Baxter, 41 N. Y. Super. 358; 71 N. Y. 254. The doctrine of those cases is that a promise without mutuality may be supported by subsequent performance of that in consideration of which the promise was made. In the present case there was no promise in fact of the lessee to give the plaintiff the benefit of the title to the new engine, but the express declaration of the representative of the lessee may have been construed as repugnant to the implication of a promise to do so; and in such case the law will imply a promise only when there is a legal duty or obligation to support it. Whiting v.

Sullivan, 7 Mass. 107; Bridge Co. v. Abbott, 4 Cush. 473; Earle v. Coburn, 130 Mass. 596. And it may be added, that as a rule, when the owner of property, having the rightful power to withhold it and its use, prescribes the terms upon which it may be taken, appropriated or used by another, who takes it advised of the terms, the latter will be deemed to have acquiesced, and may be charged with the promise to comply with them. The plaintiff's proposition is that the lessee had no right, without his consent, to remove the one and substitute the other engine, and having applied to the plaintiff for permission, which was granted upon terms, the lessee must be deemed to have proceeded pursuant to the right so given, and as the consequence he took title. This view is plausible, and apparently forcible. The evidence however on the part of the defendant tends to prove that the lessee did not apply to the plaintiff for his consent to make the change, but simply to induce him to enter into an arrangement to share the expense of putting in the new engine, and that not obtaining the plaintiff's assent to do so, the lessee assumed the right to take out the old engine, put in a new one in its place and retain title to the latter. And the trial court accordingly found that the lessee had no design or intention at any time of attaching the eagine to the freehold, but on the contrary the intention of the lessee at the time of placing it in the engine-house was to remove it on the determination of the lease. This finding was warranted by evidence, and whether it is effectual to support the defendant's claim of title to the engine becomes a question of law. As between landlord and tenant the latter, except so far as his rights are limited by the lease, is at liberty to erect structures for the purpose of carrying on his legitimate business upon the demised premises, and remove them within the term, unless the effect will be to commit waste or to do serious injury to the realty. 2 Kent Com. 345; Ombony v. Jones, 19 N. Y. 234; Marble Mills Co. v. Quinn, 76 id. 23; Kelsey v. Durkee, 33 Barb. 410; Trapper v. Harter, 2 Cromp. & M. 153. The covenant of the lessee that he would not make any alteration in the premises without the consent of the landlord was only an undertaking imposed by law, which is to the effect that any material and substantial change or alteration of the nature of the property is waste. Agate v. Lowenbein, 57 N. Y. 604. And it is such, although it may not in its consequences be prejudicial to the landlord. The expression of the chancellor on the subject in Winship v. Pitts, 3 Paige, 259, was that the tenant has no right "to make im provements or alterations which will materially or permanently change the nature of the property, so as to render it impossible for him to restore the same prem. ises substantially at the expiration of the term." The substitution of the new engine for use by the tenant in place of the old one, and the suspension during that time of the use of the latter, were not necessarily an alteration or change of the nature of the premises in any substantial respect. The tenant clearly had the right to place a new engine upon another foundation, if room permitted it, and to allow the old one to remain idle, and in such case the right of the tenant to take away the one so placed there would have been clear. In this view there was no legal obligation to necessarily charge the lessee by implication with the terms or conditions upon which the plaintiff assumed to consent to the removal of the old engine and the substitu tion of the new one by the lessee, and as the latter did not in fact accede to the terms which the plaintiff sought to impose, but proceeded upon the declared purpose to the contrary, the plaintiff took no title to the engine in question. Second Division, April 19, 1892. Andrews v. Day Button Co. Opinion by Bradley, J. Parker and Landon, JJ., dissenting. 9 N. Y. Supp. 916, affirmed.

MORTGAGE-FUTURE ADVANCES.-In an action to foreclose a $15,000 mortgage given as security for the payment of any and all notes, checks and drafts indorsed by the [mortgagee] for the benefit or accommodation of" the mortgagor, where it appears that when the mortgage was given the mortgagee was indorser for the mortgagor upon only one note, for $3,000, the mortgage will be held to secure future indorsements made by the mortgagee, in ignorance of a second mortgage on the same premises, to secure other indorsements. Ackerman v. Hunsicker, 85 N. Y. 43. As between the plaintiff and the mortgagor, it was proper to show the amount of the plaintiff's indorsements then existing, in order to aid in ascertaining whether they used the word “indorsed" in the mortgage solely with reference to such existing indorsements, or with reference to existing and future indorsements. Bank v. Strever, 18 N. Y. 502; Simons v. Bank, 93 id. 269; Bank v. Hall, 83 id. 338. Since the plaintiff was not affected by the appellant's mortgage it follows that the appellant was in no position to resist the application of this rule of evidence. The evidence showing the existence of the note when the mortgage was given, in connection with the evidence touching the two subsequent notes, was necessary to enable the court clearly to understand the subjectmatter in controversy. When the facts were understood the terms of the mortgage were also understood. They were not altered or varied. The mortgage was for the protection of the plaintiff. The words "any

SUMMONS-AFFIDAVIT FOR PUBLICATION-PERSONAL SERVICE OUT OF STATE-GUARDIAN AD LITEM-PREMATURE APPOINTMENT- VOIDABLE JUDGMENT RIGHTS OF PURCHASERS.—(1) In an action for partition, an affidavit by plaintiff that he is personally acquainted with defendants; that they are non-resideuts of the State, and that he "verily believes" that a summons cannot with due diligence be served on them within the State, shows sufficient facts on which to base an order for publication. Kennedy v. Trust Co., 101 N. Y. 487. (2) The Code of Civil Procedure, section 440, provides for service of summons in certain cases by publication not less than six weeks. Section 441 provides that "for the purpose of reckoning the time within which the defendant must appear and answer, service by publication is complete on the day of the last publication pursuant to the order, and service made without the State is complete on the expiration thereafter of a time equal to that prescribed for publication." Section 471 provides that where an infant defendant is over fourteen years of age, he may apply for the appointment of a guardian ad litem within twenty days after the service of the summons is complete. Held, that where non-resident infant defendants were personally served out of the State, no jurisdiction to appoint a guardian ad litem was acquired until the expiration of six weeks from such service, though they appeared and made application for such appointment. Ingersoll v. Mangam, 84 N. Y. 622. (3) In a partition suit, though the order appointing a guardian ad litem for infant defendants is void because of irregularities, the judgment is not void, but only voidable, at the option of such infants, service of process having been duly made on 'them. McMurray v. McMurray, 66 N. Y. 175; Feitner v. Hoeger, 14 Daly, 470. (4) The purchaser of laud at a partition sale cannot be compelled

to take the title when it appears that the proceedings are thus voidable. Jordan v. Poillon, 77 N. Y. 518; Fleming v. Burnham, 100 id. 1; Miller v. Wright, 109 id. 194. April 12, 1892. Crouter v. Crouter. Opinion by Maynard, J. 17 N. Y. Supp. 758, affirmed.

SURROGATES- JURISDICTION INJUNCTIONS.-The Laws of 1849, chapter 306, as amended by Laws of 1851, chapter 108, gave the surrogates of certain counties all the powers possessed by a county judge out of court. Before the adoption of the Code of Civil Procedure, these special surrogates had power to grant injunctions in actions in the Supreme Court, and section 606 of that Code expressly conferred jurisdiction on county judges to grant such injunctions. Held, that after the adoption of said Code said surrogates had power to graut such injunctions. Second Division, April 19, 1892. Aldinger v. Pugh. Opiniou by Follett, C. J. 10 N. Y. Supp, 684, affirmed.

TAXATION-ASSESSMENT-INTEREST.-(1) The Legislature, in ratifying and relevying, by chapter 656, Laws of 1886, the void tax assessed in 1880, in Long Island City, had the power to levy interest on the same from the date of the void assessment. People v. Bleckwenu (Sup.), 7 N. Y. Supp. 914, followed. (2) Under the charter of Long Island City (Laws 1871, chap. 461, tit. 6, § 6), which provides that the assessors, in preparing the assessment-rolls, shall have all the powers of assessors of town18, except that lands of non-residents shall not be separated from the other assessments," an assessment on unoccupied lands of a non-resident, otherwise valid, is not rendered void by the insertion of the owner's name in the assessment-roll, since the insertion of such name is mere surplusage. Second Division, April 19, 1892. Collins v. Long Island City. Opinion by Brown, J. 9 N. Y. Supp. 866, affirmed.

VENDOR AND PURCHASER- MISTAKE- EQUITY STATUTE OF LIMITATIONS.-(1) Where a vendor, in selling land by the acre, by mistake overstates the amount thereof, the right of the vendee, after the contract is executed, to demand an abatement of the purchase-price is equitable, and the ten-years' statute of limitation applies. Butler v. Johnson, 111 N. Y. 204. (2) Such relief may be demanded as well on an equitable defense to an action by the vendor for the purchase-price as in a suit brought for the purpose. Hook v. Craighead, 32 Mo. 405. Second Division, April 19, 1892. Gallup v. Bernd. Opinion by Parker, J. 9 N. Y. Supp. 952, mem., affirmed.

WILL-LAPSE OF LEGACY-NEXT OF KIN.-Testator, after making certain bequests, left the residue of his estate equally to all his relatives on his father's side that might be in the Uuited States at the date of the will, and to the children of one G., but he expressly "cut off" from inheritance of any of his property the wife of his brother J., or any person related to her either by blood or marriage. J. died after the death of testator. In an action by the widow and children of J. to recover a share of testator's estate, the widow testified that G. had died unmarried and without children; that she was familiar with the history of the family of her husband and of his father, and that she had heard the father say that he was the only child of his parents, who had died in Ireland, and that he had no relatives living. Her testimony was corroborated by her son and was not contradicted. Held, that such evidence tended to show that the residuary bequest of testator had failed so as to entitle plaintiffs to take as if testator had died intestate, and that it was error to grant a non-suit. The clause in the will above quoted by which the testator attempted to disinherit his brother, his wife and their descendants, does not defeat the right of these plaintiffs to the estate unless the persons to whom the testator attempted to devise the