STRUCTIONS.-(1) Where in a trial for larceny there was no direct proof of actual possession, but evidence of circumstances which tended to show that the defendant took and had the possession, it was a question of fact for the jury. (2) In the trial of a criminal case, if the charge as a whole conveyed to the jury the correct rule of law, the judgment will not be reversed, although detached sentences may be erroneous; and if the language is capable of different constructions, that will be adopted which will lead to an affirmance, unless it fairly appears that the jury might have been misled. (3) Where a constable told the prisoner that "she might as well own up, as they had proof enough to convict her," this will not render the confessions of the accused inadmissible. (4) Where a witness is proved to have been an accomplice, evidence of his previous statements is admissible to contradict and impeach her. (5) An instruction to the jury "to the effect that if they were convinced that the value of the property taken was over $500, and that the defendant took it, they might convict her of grand larceny in the first degree; and if the property taken was of the value of more than $25 they might convict of grand larceny in the second degree; and if less than $25 the verdict might be for petit larceny," was not erroneous. Dec. 7, 1886. ler, J.

People v. McCullam. Opinion by Mil

EXECUTORS AND ADMINISTRATORS-POWER TO PAY TESTATOR'S BID AT FORECLOSURE SALE-ACTS IN GOOD FAITH, BEFORE QUALIFYING, SUBSEQUENTLY RATIFIED -INVESTING TRUST FUND IN SECURITIES OUT OF STATE -SURROGATE'S FINAL DECREE-CONCLUSIVENESS.—(1) Testator, foreclosing a mortgage on land out of the State, bid it in at the sale for the amount of all the prior liens and costs. Before completing the transaction he died, and his executors, without waiting to be sued, but acting in good faith, under the advice of counsel, and with reasonable prudence and care, paid the amount of the bid. Held, that being bound to fulfill the testator's contract, they had a right to discharge the obligation voluntarily, without suit. (2) Executors paid the purchase-money and took the deed before qualifying. After qualifying, they ratifled these acts, which were all done in good faith. Held, no devastavit. The executors sold the real estate, and being unable to obtain cash, took a mortgage, which was supposed to be ample security to represent certain trusts created by the will, and invested the trust funds in this mortgage coming to the estate in this way. Subsequently a flaw in the title of the real property, unknown to the executors, and probably to testator, was brought to light, and payment of the interest on the mortgage ceased. All the acts of the executors were in perfect good faith. The beneficiaries sued the executors for the deficiency in the trust fund. Held, that this case comes within the exception to the rule forbidding an executor or trustee residing in this State, and deriving his authority from a will executed and admitted to probate here, to invest trust funds in mortgages secured by real estate situated out of the State. The whole administration by the executors was reviewed by the surrogate upon their accounting, of which the petitioners herein had notice. (3) The surrogate's decree charged them with the amount of the inventory and the increase thereof, and credited them with the loss on the inventory, with the expenses and legacies and trust fund invested in this mortgage, and has never been impeached or reversed. Held, the decree furnishes absolute protection to them. Dec. 14, 1886. Denton v. Sanford. Opinion by Earl, J.

WILL-GIFT OF NET PROFITS OF BUSINESSDEDUCTING LOSSES-REPLACING WOKN-OUT ARTICLES -REPAIRS.-Where by his will a testator directs his executors to carry on his business, and after deducting necessary expenses of conducting the business, to pay the net profits thereof to the beneficiaries named in the will, losses occurring on credits authorized to be made, expenses for replacing appliances used in the business which had worn out, and for horses which had died, and for repairs, were properly charged against the income of the business, and deducted from the amount paid the beneficiaries. It would be very difficult to draw a dividing line by which it could be determined that a certain portion of the expenses incurred and disbursements made in the transaction of the business should be made a charge against the capital employed, and another portion against the profits or income. While a case might arise where a large expenditure, as for iustance, the erection of additional buildings, might be such an improvement of the real estate as to become an addition to the capital employed, yet any ordinary expenditures for repairs and improvements would not be embraced within any such rule. So also in reference to the wearing out, loss of, or depreciation of personal property, it cannot well be claimed that moneys expended to replace the same should not be deducted from the income received or profits realized. It was not necessary, we think, that the testator should have expressed in his will, in more specific terms, what items should be deducted, and he evidently meant by the language employed to include all losses and all expenses which were necessarily incurred in the management of the estate and the conduct of the business. It can hardly be supposed that the testator had intended that a division should be made of profits realized from the business, without deducting expenses and losses. Such a disposition of the income received would not constitute a division of the "residue," as the amount would be greater than what actually remained. There would in fact be no such profits on hand to be divided. The expenditure would have been made without any provision for its payment or reimbursement, and the value of the investment in the business very seriously impaired. The effect of charging any of the expenses which related to the business upon the principal of the estate would be a serious impairment of the capital employed in the business, which might, in the end, absorb the same, and thus destroy all income arising therefrom. It is no answer to this view of the subject to say, that under the will the business is only to be conducted so long as, in the opinion of the executors, it shall be to the advantage of the estate to carry it on, as clearly it could never have been intended that the conduct of the business should deplete the estate by dividing its capital to make good the expenses and losses referred to. Nor can it well be said that the losses were to be apportioned between principal and income, as it might be determined; and it is nowhere manifest that the testator's intention was that the devisees should not only receive the income, but a portion of the principal. It would require a close calculation to determine what apportionment should be made as to a portion of the losses incurred, and it is not fairly to be inferred that the testator intended that any such degree of exactitude should be required. The provision under the will authorizing the executors to discontinue the business when it was no longer advantageous to continue it, bears strong indication of the intention of the testator, that when the body of the estate fails to yield a sufficient income, after making proper deductions, then the occasion arrived, as mentioned in the will, when it became the duty of the executors to discontinue the business. Dec. 17, 1886. In re Jones. Opinion by Miller, J.

MORTGAGE -RECEIVER LIABILITY-NEW YORK CONSOLIDATION ACT 1882, § 473-ENDANGERED WALLS. -The New York Consolidation Act of 1882, ch. 410, $473, making the duty of owners of walls endangered, by excavation on an adjacent lot, to make same safe, on notice by the fire department, and authorizing the fire department to do the work at such owners' expense, and giving a right of action against such owners to the owner of the adjacent lot doing such work under the direction of the fire department, does not cast the owners' duty upon the receiver appointed under foreclosure proceedings to receive the rents of the endangered building; and where in such case the inspector of buildings of the fire department gives notice to the owner and receiver of the endangered building, and on their default the party excavating the adjacent lot, without any application to the court appoint ing the receiver, proceeds to make the wall safe, under the inspector's direction, it lies within the discretion of such court to allow its receiver to reimburse for such work, and no appeal will lie from its refusal; and the party doing such work has no case for the interposition of a court of equity, and no legal claim, under the statute, against the receiver. Dec. 17, 1886. Wyckoff v. Scofield; In re Petilion of Maddock. Opinion by Danforth, J.

UNITED STATES SUPREME COURT ABSTRACT.

BANKS-NATIONAL-LOSS OF SECURITIES BY BURGLARY NEGLIGENCE. Where a national bank is broken into by burglars, and property belonging to it and to others was taken, the bank may take measures for the recovery of its own; and may lawfully undertake to act for others thus jointly concerned with itself, and for want of proper diligence, skill, and care in the performance of such an undertaking it is liable to respond in damages, but this case shows no such negligence. Dec. 13, 1886. Wylie v. Northamption Nat. Bank. Opinion by Matthews, J.

BANKRUPTCY-SUITS AGAINST ASSIGNEE-JURISDICTION-STATE COURTS.-Assignee in bankruptcy may appear in a suit brought against him in a State court, and litigate his rights there, and the judgment in such action is binding upon him, and those he represents. Dec. 13, 1886. Winchester v. Heiskell. Opinion by Waite, C. J

CUSTOMS DUTIES-COLLECTORS -FAILURE TO GIVE NOTICE OF DELIVERY TO COMMON CARRIER CLAIMING LIEN-ACTION FOR FREIGHT RECEIVED-PLEADINGRECEIVING FREIGHT NOT AN OFFICIAL ACT-REMOVAL OF CAUSE "ACT DONE UNDER COLOR OF OFFICE."—(1) Section 10, act of Congress of June 10, 1880, requires a collector of customs, when notified of a carrier's lien, to give to the carrier reasonable notice of delivery. In an action against a collector, the carrier alleging a failure to give the statutory notice, and that the collector had received the charges for freight from the consignees, and failed to pay them over, held, that inasmuch as the carrier failed to aver that his charges were unpaid, and ratified their payment by suing the collector for receiving them, the collector was not liable for not giving the notice. (2) The payment of freight having been made to the coilector's deputy under a custom of the office, of which custom the collector was ignorant, and which payment the collector gave his deputy no express authority to receive, the receiving of the charges was not a part of the official duties of the collector, and therefore he was not liable for this act of his deputy. (3) The collector having removed the cause from the State court to a United States Circuit Court under Rev. St. U. S., § 643, au

thorizing the removal of a civil suit against a revenue officer of the United States, on account of any act done under color of his office, held, that though the demand of the charges paid extinguished the liability of the officer for failure to give the statutory notice, and the receiving of the payment of the freight was not an official act, the suit was for an act done under color of office, and therefore removable. Dec. 13, 1886. Cleveland, C., C. & I. R. Co. v. McClung. Opinion by Waite, C. J.

DAMAGES-PENAL OR LIQUIDATED.-A bond "in the penal sum of $10,000, liquidated damages," conditioned on the discharge, within one year, of obligee from all claims against him held by the obligor and certain others, is a penal bond, and the obligee is not liable thereon, if a month after the time mentioned in the bond, but before the beginning of the action, the obligor obtained his discharge in bankruptcy. As observed by Lord Tenterden in a similar case: "Whosoever framed this agreement does not appear to have had any very clear idea of the distinction between a penalty and liquidated damages; for the sum in question "is described in the same sentence as a penal sum and as liquidated damages." Davies v. Penton, 6 Barn. & C. 216, 222; S. C., 9 Dowl. & R. 369, 376. The object of the bond is to secure the obligee's discharge from a large number of claims against him held by certain third persons severally, amounting in all to something like $39,000, and varying from more than $8,000 to less than $10 each. A failure of either of those persons to release any one of those claims would be a breach of the bond; and for any such breach a just compensation might be estimated in damages. The sum of $10,000 must therefore be regarded as simply a penalty to secure the payment of such damages as the obligee may suffer from any breach of the bond. Watts v. Camors, 115 U. S. 353; Boys v. Ancell, 5 Bing. N. C. 390; S. C., 7 Scott, 364; Thompson v. Hudson, L. R., 4 H. L. 1, 30; Fisk v. Gray, 11 Allen, 132. Dec. 20, 1886. Bignall v. Gould. Opinion by Gray, J.

INSURANCE-MARINE - NOTICE OF DISCONTINUANCE -PAYMENT OF MONTHLY PREMIUM.-A policy of marine insurance dated April 5, 1880, for six months, provided: "This policy to continue in force from the date of expiration, until notice is given this company of its discontinuance, the assured to pay for such privilege pro rata for the time used." On October 9th the insured wrote to insurer, inclosing check for one monthly premium from October 5th to November 5th. November 6th there was a loss by a peril of the sea. Held, that the sending of the check for one month's insurance was a monthly payment, and not the notice of discontinuance provided for in the policy. The agreement did not specify when, or how often, such pro rata payments should be made. The plaintiff might have waited a year before making a payment, unless the insurance company had demanded an earlier payment. The plaintiffs elected to make a monthly payment, and made it. It seems to us very clear that the mere making of such a payment was not and did not amount to, a notice to discontinue the policy, or an election to have it continued in force for the month for which the payment was made, and no longer. The plan adopted by the plaintiffs, to pay from month to month, was a reasonable one, and favorable to the insurance company. It would have been a less favorable one to have deferred any payment longer, and a more favorable one to have paid for a longer time when they did make a payment. But in whatever manner they chose to arrange their payments, it did not affect the terms of the policy. That continued in force, by the terms of it, until the plaintiffs gave notice of its discontinuance. To say that a mere payment for a specified time would amount in law to such a notice,

would make it dangerous for them to make any payment at all until they met with a loss. Even if in making a payment they should make an express stipulation or proviso that it was not intended as a notice of discontinuance, such a stipulation would be of no avail if the defendants are right in the position they take. This, we think, would be an unreasonable construction of the contract, and of the acts of the assured done in pursuance of it. Dec. 20, 1886. Greenwich Ins. Co. v. Providence & Stonington Steamship Co. Opinion by Bradley, J.

JURISDICTION-SUPREME COURT UNITED STATESDIVISION OF OPINION-HOW AND WHAT TO BE CERTI

FIED-AMOUNT.-(1) Under the acts of Congress authorizing questions arising on a trial or hearing before two judges, in the Circuit Court, and upon which they are divided in opinion, to be certified to the Supreme Court of the United States for decision, each question certified must be one of law, and not of fact, nor of mixed law and fact, and it must be a distinct point or proposition clearly stated, and not the whole case, nor the question, whether upon the evidence, the judgment should be for one party or for the other. (2) Where, in an action of debt under section 5198 of the Revised Statutes, brought in the Circuit Court of the United States against a national bank, to recover twice the amount of interest, at the rate of nine per cent, received by the defendant, upon the discount of notes, a judgment was rendered for the plaintiffs in the sum of $2,150.38, held, that the Supreme Court had no jurisdiction. Dec. 13, 1886. Williamsport Nat. Bk. v. Knapp. Opinion by Gray J.

NON-RESIDENTS -NO SEPARABLE CONTROVERSY COSTS.—(1) In an action against the trustee of a deed of trust and his cestui que trust, by the grantor, and his assignee in insolvency, to permit a sale of the property under the deed, and for an accounting between the grantor and cestui que trust, the trustee is an indispensable party, and being a resident of the same State as the plaintiffs, the United States Circuit Court has no jurisdiction of the action as a controversy between citizens of different States, although the cestui que trust is a citizen of a different State, as there is no separable controversy between the plaintiffs and the cestui que trust. (2) In such a case the question of costs being in the discretion of the Supreme Court, and the action being a consolidation of one commenced in the Circuit Court by the plaintiffs with one commenced in a State court by them, and removed to the Circuit Court on motion of the defendants, and neither party having called the attention of the Circuit Court to the question of jurisdiction, both parties are in fault, and the costs of appeal to the Supreme Court, and of the removal from the State to the Circuit Court, will be divided equall between them. Dec. 13, 1886. Peper v. Fordyce. Opinion by Waite, C. J.

REMOVAL OF CAUSES-LOCAL PREJUDICE-PETITION WHEN TO BE FILED.-Under subsection 3, Rev. Stat. U. S., § 639, which was not repealed by the act of Congress of March 3, 1875, a petition for the removal of a cause between citizens of different States, from the State to the Federal courts, on the ground of local prejudice, may be filed after a new trial has been actually granted, and while the cause is pending in the trial court for that purpose, and the security may be such as is prescribed by that section. Dec. 13, 1886. Baltimore & Ohio R. Co. v. Bates. Opinion by Waite, C. J.

CITIZENS OF DIFFERENT STATES.- Plaintiff sued defendant and B. in a State court of which B. and plaintiff were both citizens. Judgment was taken against B. by default. Afterward defendant acknowl

edged service, and set up a defense, and procured an order removing the cause to a United States Circuit Court, on the ground that he and plaintiff were citizens of different States. Held, that defendant having voluntarily appeared in the action in which B., who was a citizen of the same State as plaintiff, was a party defendant, and the cause of action as to defendant being neither separated nor separable, the cause was not removable. Dec. 13, 1886. Brooks v. Clark. Opinion by Waite, C. J.

FEDERAL QUESTION-ACTION FOR PENALTIES AGAINST FOREIGN INSURANCE COMPANIES-QUESTION WHETHER PERSON SERVED WAS AGENT OF COMPANY SUED.—(1) An action by a State in its own court to recover penalties imposed on foreign insurance companies for doing business without complying with the State laws, is not before answer removable to a Circuit Court of the United States, under act of March 3, 1875, providing for such removal, where the suit arises under the Constitution and laws of the United States. (2) The question whether the summons was served on an agent of the company within the State on whom process might legally be served, is not dependent on a construction of the Constitution or any law of the United States, and therefore there is no cause for removal. Dec. 13, 1886. Germania Ins. Co. of New Orleans v. State of Wisconsin. Opinion by Waite, C. J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CRIMINAL LAW-EVIDENCE-DYING DECLARATIONS— RES GESTÆ. In a trial for murder, evidence of the wife of deceased, that after her husband was shot he said to her, "Oh hun, he has killed me!" or, "Oh hun, he has shot me!" after he had gone 200 yards from the place where he was shot, and called her, and she went to him, travelling 100 yards, is not admissible, being no part of the res gestæ, nor is it admissible as a dying declaration, she not being positive whether the word was "shot or "killed," and there being no proof that the words were said under a sense of impending danger. Mo. Sup. Ct., Nov. 12, 1886. State v. Rider. Opinion by Henry, C. J.

INSURANCE-STANDING CROPS.

- B., an insurance company, included in a policy issued by it to C. an insurance upon "stock, crops and farming implements;" during the running of the policy a field of growing wheat belonging to C. was in part destroyed by a hail storm; he presented a claim to B. for payment on account of his loss, which B. declined to pay, as the crop destroyed was a standing one. He then brought suit against B. Held, that he could recover. Penn. Sup. Ct., May 3, 1886. Mutual Fire Ins. Co. v. De Haven. Opinion per Curiam.

MALPRACTICE-BURDEN OF PROOF EVIDENCE OF PROFESSIONAL REPUTATION.-In a suit against a physician for malpractice in treating a fractured leg, the burden of proof to show want of proper skill is on the plaintiff; and in such a case, while the skill of the defendant, or the want of it, is put in issue, his reputation in that respect is not put in issue, and evidence to establish it is properly excluded. There are many reasons outside of those mentioned why evidence of this character is not admissible. First, its bearing upon the issue is too remote, and in many, if not in most cases it would tend to mislead the jury rather than enlighten them. The veriest quack in the country, by his peculiar methods, not unfrequently becomes very famous for the time being in his own locality, so much so that every person in the neighbor

hood might safely testify to his good reputation. It is true that one's reputation thus acquired is generally of short duration. His patrons sooner or later must pay the penalty of their credulity by becoming the victims of his ignorance, and with that his good name vanishes. Yet according to the principle contended for, the quack, in such case, when called to account for his professional ignorance, might successfully entrench himself behind his previous good reputation. Again one may in many respects be a good practitioner, and deservedly stand well in the neighborhood in which he lives, and yet at the same time be grossly ignorant about some matters in the line of his profession which would render him liable, if by reason thereof his patient should be improperly treated, and thereby subjected to loss or injury. In such case it is manifest evidence of the defendant's good reputation would be no answer to an action brought for the injury sustained, and its admission would be clearly calculated to mislead the jury. Ill. Sup. Ct., Nov. 13, 1886. Holzman v. Hoy. Opinion by Mulkey, J.

MORTGAGE-REDEMPTION-ORAL EVIDENCE OF SECURITY.-This is a bill in equity, brought by the administrator of a second mortgagee to redeem land from a first mortgage. The first mortgage was originally given to D., and was afterward assigned to defendant. It was in form a mortgage to secure the payment of a note for $10,000. It was proved by oral testimony at the hearing that it was in fact given for the benefit of the defendant to secure him for advances, which he had made and which he might thereafter make for the benefit of the mortgagor in the settlement of his affairs, and for the services rendered by the defendant in such settlement. D. held the mortgage until he assigned it in trust for the defendant. Breen v. Seward, 11 Gray, 118. We cannot see that the rights and equities of the parties in this suit are different from what they would have been if the mortgage had been originally made directly to the defendant. It has been repeatedly held by this court, that in a bill to redeem by a mortgagor, it is competent for the mortgagee to show by oral testimony what was the real debt or obligation which the mortgage was given to secure, and competent to show, that after it was given, the parties agreed that it should be held as security for a new and different debt. In such cases a court of equity will not aid a mortgagor or permit him to redeem, until he does equity and pays the debt intended to be secured by the mortgage according to the agreement and real equities between the parties. Joslyn v. Wyman, 5 Allen, 62; Stone v. Lane, 10 id. 74; Upton v. Nat. Bank of South Reading, 120 Mass. 153. The same principle is applied when a bill to redeem is brought by one who has taken a conveyance from the mortgagor with a knowledge of the facts. Joslyn v. Wyman, ubi supra; Stone v. Lane, ubi supra. In the case at bar, the plaintiff has no higher equity than that of the mortgagor. The second mortgage is expressly made subject to the first, and when the plaintiff's intestate took his mortgage, he was informed of the origin, character and purposes of the first mortgage. He took it with a knowledge of all the facts. His administrator stands in no better position than the mortgagor, and in this suit the defendant is entitled to hold his mortgage as security for the payment of his services and advances, as found by the presiding justice of the Superior Court. Mass. Sup. Jud. Ct., Oct. 22, 1886. Taft v. Stoddard. Opinion by Morton, C. J.

NEGLIGENCE-DEATH ACTION FOR-CHILD TRESPASSING ON DEFENDANT'S GROUNDS.-Where the defendant, a corporation engaged in distilling, discharged the waste steam and water from the distillery boilers on unfenced ground belonging to it, and lying

on the further side of a road which ran past the distillery, and the plaintiff's child, three years of age, fell into a hole made by the escaping steam and water, and was scalded so that she died, the defendant is not liable, in the absence of evidence that the place where the child lost her life was attractive to children by reason of the discharge of the steam and boiling water, or that children were in the habit of resorting there to play, or to witness the escape of the water and steam from the pipe. It is a well-established general proposition of law that the owner of property is under no obligation to keep it in a condition which will insure the safety of persons who go upon it without his license or invitation. Hughes v. Hannibal & St. J. R. Co., 66 Mo. 325; Turner v. Thomas, 71 id. 596. The case of Nagle v. Missouri Pac. Ry. Co., 75 Mo. 653, belongs to a class of cases which qualify the general doctrine, and hold that where the owner permits upon his premises dangerous machinery, or other dangerous things, likely to attract children, and does not guard them to prevent injury to them, he is liable for any injury they may sustain in consequence of his neglect to place guards about them. The evidence in this case does not show that the escape-pipe, at its outlet on the defendant's premises or the place into which it discharged the boiling water, was attractive to children. It was a dirty, filthy place, forty feet or more north of the public road. The house of Behrens is 223 feet west of the pipe, and Schmidt's next beyond; and these were the nearest residences to the escape-pipe. There is no evidence that children were in the habit of resorting to this place for amusement or otherwise. There is nothing to show that the Behrens children, with whom Louisa Schmidt went there, were ever there but once before, or that any other children were ever at that place. There was a notice on a board nailed to a cotton-wood tree on defendant's premises forbidding people from going upon the ground. It is not even shown that defendant knew that the water discharged from the escape-pipe had made the hole in the ground into which Louisa fell, and there is not a particle of evidence of negligence on the part of defendant, unless it be negligence to have used its property, for its convenience, in a manner which might occasion injury to a trespasser upon its premises. An owner of property cannot place temptations upon it to allure any one to a dangerous place upon his premises, and escape liability for injury that even a trespasser may sustain in yielding to the temptation to go there. Nor can he place dangerous, unguarded machinery or other dangerous thing so near a public street or highway as to endanger persons thereon, without liability for damages to one occasioned thereby. But, to assert a proposition stronger than these against the owner of property were to deny his dominion over it, and compel him to use it, not for his own, but for the public convenience. The petition should have averred either that the place where Louisa lost her life was attractive to children, by reason of the escape-pipe discharging the boiling water there, or that children in the neighborhood were in the habit of resorting there to play, or to witness the escape of the water and steam from the pipe. Some fact should have been stated to show that defendant was not properly exercising its dominion over its own property. Mo. Sup. Ct., Nov. 15, 1886. Schmidt v. Kansas City Distilling Co. Opinion by Henry, J.

NEGOTIABLE INSTRUMENT DELIVERY ON CONDITION-PAROL EVIDENCE. On the trial of a suit on a note, the defendant offered evidence to prove, and claimed to have proved, that previously to the execution and delivery of the note, plaintiff who was a grand juror of the town, where the defendant resided, and was acting as the attorney of one M., accused the de

un

fendant of having made an assault upon the person of the said M., and threatened him with a criminal prosecution unless he settled with her for the injury; that defendant thereupon admitted that he had done wrong in the matter and offered $100 to settle it; that plaintiff demanded $300, which defendant was willing to pay; that defendant was without counsel and asked to be allowed till the following Tuesday to consider the matter, and offered to give his note for $300 to be held by the plaintiff till then, and if he did not then appear, to be held by the plaintiff as a settlement for the injury to the said M., but if he should appear, to be returned to him to be cancelled; that thereupon the plaintiff wrote the note in suit, which the defendant executed and delivered to the plaintiff to be held by him upon the conditions stated; and that the defendant at the same time declared that he should appear and demand a return of the note. The defendant also offered evidence that on the following Tuesday he appeared before the parties and demanded the return of the note, but that the plaintiff refused to surrender it. A written contract must be in force as a binding obligation, to make it subject to this rule. Such a contract cannot become a binding obligation until it has been delivered. Its delivery may be absolute or conditional. If the latter, then] it does not become a binding obligation until the condition upon wich its delivery depends has been fulfilled. If the payee of a note has it in his possession, that fact would be prima facie evidence that it had been delivered; but it would be only prima facie evidence. The fact could be shown to be otherwise and by parol evidence. Such parol evidence does not contradict the note or seek to vary its terms. It merely goes to the point of its non-delivery. The note in its terms is precisely what both the maker aud the payee intended it to be. No one desires to vary its terms or to contradict them. Benton v. Martin, 52 N. Y. 570; Schindler v. Muhlheiser, 45 Conn. 153; Adams v. Gray, 8 id. 11; Collins v. Tillou, 26 id. 368; Clarke v. Tappin, 32 id. 56; Post v. Gilbert, 44 id. 9; Hubbard v. Ensign, 46 id. 585. Conn. Sup. Ct., April 2, 1886. McFarland v. Sikes. Opinion by Park, C. J.

PAYMENT-PROMISSORY NOTE-CHECK-DISHONORLIABILITY UPON NOTE.—The maker of a promissory note, on the day on which the note matured obtained from his banker a cashier's check payable to the cashier of the bank which held the note. The latter bank accepted the check, and delivered up the note. Before payment of the check could be obtained, the bank by which it had been given suspended payment, and it was dishonored. Held, that the check being taken for a pre-existing debt, the receipt of it, and the contemporaneous delivery of the note, operated only as a conditional payment of the note, and the maker was, upon the dishonor of the check, still liable to the holder upon it. The burden of proof was on the maker of the note to overthrow the presumption that the check was taken as a conditional payment. It was of no higher character than the note, and it certainly was not money. Brown v. Scott, 51 Penn. St. 357; League v. Waring, 85 id. 244; Miller v. Lotz, 15 Pittsb. Leg. J. 139. Penn. Sup. Ct., Oct. 4, 1886. Canonsburg Iron Co. v. Union Nat. Bank of Pittsburgh. Opinion by Mercur, J.

SALE-PURCHASER'S RIGHTS AND REMEDIES-DAMAGES-RECOUPMENT.-When an article is sold accompanied with a warranty, direct or implied, and it proves defective or unfit for the use intended, the purchaser may, without returning or offering to return it, and without notifying the vendor of the defects, bring his action for the recovery of damages; or if sued for the price, may set up and have such damages al

lowed him by way of recoupment from the sum stipulated to be paid. Bonnell v. Jacobs, 36 Wis. 59. Wis. Sup. Ct., Nov. 3, 1886. Buffalo Barb-Wire Co. v. Phillips. Opinion by Taylor, J.

TRADE-MARK-OF GUNS-" GEM."-I have no doubt whatever that this mark ought to be registered. What it is sought to have registered is the word "Gem" as applied to air-guns. Now, the word "Gem" describes no quality of the gun. It cannot in any way be treated as a descriptive word. Applied to a gun, it is as purely a fancy name as any other name one can conceive, and therefore it comes within the provision in the Patents, Designs and Trade-Marks Act, 1883, and is a word which it is proper to register as a trademark applied to that particular kind of article. Eng. Ch. Div., Aug. 2, 1886. Re Arbenz. Opinion by Kay, J.

TRIAL-DEAF AND DUMB WITNESS ANSWERING IMMODEST QUESTIONS TO INTERPRETER IN PRIVATE.Where a question is put to a deaf and dumb witness in a criminal case which so shocks her modesty as to cause her to flee from the court-room, the action of the court in allowing the interpreter, who followed her and brought her back, to state her answer obtained in private, without repeating the question in open court, cannot be successfully complained of by the accused, especially where it is not shown that he was injured thereby. It is vigorously insisted on behalf of appellant that this proceeding was erroneous, intolerable in a court of justice, and a palpable violation of his constitutional right to be brought face to fact with the witness testifying against him. In our opinion however the proceeding in question was not fairly open to any of the criticisms or objurgations of appellant's counsel. In some particulars,the case is an anomalous one; for to the credit of human nature, it is not often that a man is charged with an attempt,even, to gratify his passions upon the person of an unfortunate woman, forcibly and against her will, who is deprived of the sense of hearing and the power of speech. When the case occurs however, as it must be sustained in the nature of things by the woman's evidence in relation to the offense charged, the proceedings to obtain her evidence will also be anomalous to some extent. If it be conceded that the proceedings of which appellant complains were irregular, or even erroneous, there is nothing in the record to show that the appellant was in any manner injured thereby. The record fails to show what the question was which shocked the modesty of the prosecuting witness, or what was her answer thereto which she communicated to Miss Coons out of the presence of the court and jury. In this state of the record, we cannot say that the error under consideration was material, or in any wise inju rious to the appellant. Under our Criminal Code we must disregard any error in the decision or action of the court below, which does not, in our opinion, prejudice the substantial rights of the defendant. In other words, the record must show that the error complained of was material and injurious to the defendant; otherwise the error must be disregarded here, and will not authorize the reversal of the judgment. Ind. Sup. Ct., Oct. 14, 1886. Skaggs v. State. Opinion by Howk, C. J.