ter written to plaintiff by defendant in answer to a demand for payment. The alleged promise was as follows: "DEAR SIR-I received a notice from you Saturday, stating that a demand against me had been left in your office. I presume it is Mr. Ward's claim. I would say now, as I did before, and also told Mr. Ward, that when I was able I should most certainly settle the demand. I am not now, nor have I been, in a condition to settle it. It will be a great satisfaction to myself when I find my business will permit me to liquidate the demand, for being in debt with me is not at all agreeable, and to be free from such embarrassments is equally pleasant." The trial court ruled that defendant was liable upon the note, to which defendant took exception. C. P. Mattocks, for plaintiff. Josiah H. Drummond, for defendant. WALTON, J. When a new promise is relied on to take a debt out of the operation of the statute of limitations, and the new promise is a conditional one, the plaintiff cannot recover unless he proves performance of the condition. Proof of the promise only is not sufficient. Thus a promise to pay as soon as I can (Tanner v. Smart, 6 B. & C. 602; 9 D. & R. 549); or "when able" (Davies v. Smith, 4 Esp. 36); or "I shall be most happy to pay you both interest and principal as soon as convenient" (Edmunds v. Downes, 2 C. & M. 459; 4 Tyr. 173); or "when of ability" (Scales v. Jacob, 3 Bing. 648; 11 Moore, 553); or "I will pay as soon as it is in my power to do so" (Haydon v. Williams, 4 M. & P. 811); or "I should be happy to pay it if I could " (Ayton v. Bolt, 12 Moore, 305; 4 Bing. 105); or “I am going to H. in the course of the week, and will help you to 5l. if I can" (Gould v. Shirley, 2 M. & P. 581); or "if E. will say I had the timber I will pay for it," or prove it by E. and I will pay for it" (Robbins v. Otis, 1 Pick. 368; 3 id. 63); or "I have not the means now, but will pay as soon as I can (Tompkins v. Brown, 1 Denio, 247); will not take a case out of the statute except upon proof of performance of the condition. Proof of the promise only is not sufflcient. Read v. Wilkinson, 2 Wash. C. C. 514; Lonsdale v. Brown, 3 id. 404; Kampshall v. Goodman, 6 McL. 189. 66 In the case now before us, the defendant's promise was conditional. He said: "I would say now as I said before, and also told Mr. Ward, that when I was able I should most certainly settle the demand; but I am not now, nor have I been, in a condition to settle it." Such a promise is not sufficient to take a case out of the operation of the statute of limitations, without proof of the defendant's ability to pay. There was no such proof, and the determination of the justice of the Superior Court, that the evidence was sufficient to entitle the plaintiff to recover, was erroneous. FROM RAILROAD TRAIN. -(1) An indictment charged defendant with receiving stolen goods and also charged that defendant, with an intent to commit a larceny, broke and entered; and further charged that he did commit the larceny. Upon the trial defendant's counsel asked the court to strike out the count for burglary, which motion the court granted. The counsel thereupon asked that the count for larceny be quashed, which was denied, and defendant was tried and a verdict of guilty of larceny rendered. Defendant brought a writ of error to review a judgment of conviction against him upon such verdict. The General Term reversed the judgment and gave a new trial. Held, that the count in the indictment was one for burglary and larceny and the offenses were not separate. The action of the court in striking out the count for bur glary had no effect upon the indictment. The verdict was equivalent to a verdict of acquittal on the count for receiving and of the charge of burglary. Guenther v. People, 24 N. Y. 100. The verdict of conviction for larceny would have been a bar to a further prosecution, but defendant having brought a writ of error and the General Term having reversed the conviction and given a new trial (which decision the Court of Appeals affirms) upon defendant's own motion, the former trial and conviction are no longer a bar to a new trial. United States v. Kean, 1 McLean, 435. But the reversal of the conviction does not disturb the verdict of acquital. It is like a case of several defendants some of whom are acquitted and some found guilty on the trial. The court may grant a new trial as to those convicted without being forced to set aside the entire verdict. Field's Pr. 820; Rex v. Mawbry, 6 T. R. 627. In asking for a correction of errors made at the first trial the accused waives his constitutional protection against a second trial. But this waiver goes no further than he extends it. Here he asks a correction of so much of the judgment as convicted him of guilt; he is not to be supposed to ask correction or reversal of so much as acquitted him. He waives his privilege as to one and keeps it as to the other. See Campbell v. State, 9 Yerg. 333; State v. Kettle, 2 Tyler, 471. Upon the new trial that is ordered defendant cannot be tried save for the offense of larceny. (2) Defendant offered to prove what was said as to the mode of obtaining the property stolen by men of whom he alleged that he purchased the same at the time of the alleged purchase. Held, that the testimony was competent, not as evidence to prove how the alleged vendors came by the property but as relevant as to how defendant came by the property. Rex v. Whitehead, 1 C. & P. 67; Powell v. Harper, 5 id. 590; Hayslep v. Gymer, 1 Ad. & El. 162. The cases to the contrary (Willis v. People, 3 Park. Cr. 473, and People v. Rando, id. 335) were doubtingly decided. It is the rule, generally speaking, that declarations accompanying acts are admissible as showing the nature, character and objects of such acts. See Reg. v. Wood, 1 F. & F. 497. (3) The indictment, one count of which was for receiving stolen goods, was found in Schenectady county and the trial was had there. The goods were stolen from a freight car on a railroad and were found on the premises of the prisoner in Albany county. Held, that under the statute providing that when any offense shall have been committed in respect to any portion of the freight of any railroad train, etc., an indictment may be found in any county through which such train shall have passed (Laws 1877, ch. 167), the facts bringing the case within the provision, the indictment and trial could be had in. Schenectady county. It was in the power of the Legislature to pass such an act. Judgment affirmed. People of New York v. Dowling. Opinion by Folger, C. J. [Decided March 15, 1881.] EXECUTOR-CARE TO BE EXERCISED BY, IN REGARD TO TRUST SECURITIES-WHAT IS NOT NEGLIGENCE BY. - An executor or trustee is not a guarantor for the safety of the securities committed to his charge and does not warrant such safety under any and all circumstances, and against all contingencies, accidents or misfortunes. The rule which should govern his conduct is that he is bound to employ such prudence and such diligence in the care and management of the estate or property as in general prudent men of discretion and intelligence employ in their own like affairs. King v. Talbot, 40 N. Y. 76. While this rule requires him to avoid all extraordinary risks in the investment of the moneys of the estate and to keep the same safely, it does not demand that he shall be made liable for contingencies which under ordinary circumstances PRACTICE - BILL OF PARTICULARS-COURT MAY RE- POLICIES - AFFIDAVIT. —(1) Bills of particulars were ordered to be furnished by the defendant in an action upon a life insurance policy, in which the defense was misrepresentation and breach of warranty on the part of the insured in procuring the insurance. Held, that the Supreme Court had power to order such bill, and that there was not an abuse of its discretion. The power of the Supreme Court to order bills of particulars is not confined to actions upon demands for money made up of various items. It extends to all descriptions of actions, when justice demands that a party should be apprised of the matters for which he is to be put for trial, with more particularity than required by the rules of pleading. Tilton v. Beecher, 59 N. Y. 176. Defendant as well as plaintiff may be required to furnish a bill. Upon a plea of fraud and consequent repudiation by the defendant, he has been compelled to give instances of fraud and repudiation. McCreight v. Stevens, 1 H. & C. 454; Pitt v. Chambers, 1 F. & F. 684; on a plea of undue influence, particulars of those exerting the influence, West v. West, 4 S. & T. 22; Jackson v. Hillar, 4 Irish Rep. (Eq.) 60; on a plea of justification to an action for libel, particulars of the matters of justification, Jones v. Renwick, L. R., 5 C. P. 32; in ejectment, Doe v. Newcastle, 7 T. R. 328, note; in a criminal case, from the criminal in an indictment for libel, Com. v. Snelling, 15 Pick. 321. The 531st section of the Code, which provides that the court may in any case direct a bill of particulars, "if the claim of either party" does not limit the power to order such bill to cases where the plea demands affirmative relief. The courts have, by the Code, power to order such a bill and to affix as a penalty to a failure to produce it, that evidence shall not be given of matters not specified in the bill. (2) In this case plaintiff's affidavits upon a motion for an order for a bill of particulars, stated that they did not know to what instances the averment of defendant's pleadings referred, but did not state that they did not know of instances of the same kind with those averred. Held, that there was a sufficient case for the discretion of the court to order the bill. Snelling v. Chennels, 5 Dowl. 88. (3) The order directed that the bill state the particular times and places at which deceased had bronchitis and spitting of blood, it being alleged in the answer that he had these complaints. Held, that upon a proper construction of the requirement there was nothing unreasonable in the direction. See Millwood v. Walter, 2 Taunt. 224; Hurst v. Watkit, 1 Camp. 69, note; Lovelock v. Chevely, 1 Holt (N. P.), 552. Appeal dismissed. Dwight v. Germania Life Insurance Co. Opinion by Folger, C. J. [Decided March 15, 1881.] UNITED STATES SUPREME COURT AB- JUDGMENT '— BINDS PARTIES ACQUIRING TITLE PEN DENTE LITE CREDITOR OBTAINING JUDGMENT IN COLLATERAL ACTION. Previous to and on December 29, 1875, a National bank held a mortgage upon which a default had been made, upon premises in Ohio, belonging to L. On that day a firm to whom L. was indebted, sued L. in the United States Circuit Court. The process was served January 3, 1875, the first term of that court thereafter commenced January 4, 1876. On the 31st of January the firm recovered judgment for the full amount of their claim and costs, and on the same day caused an execution to be issued, which was on February 1st duly levied on the lands covered by the bank mortgage. The effect of the judgment, under the Ohio statute, without this levy, was to bind the lands of the defendant for the satisfaction thereof from the first day of the term of the court at which it was rendered, January 4. Pending this suit, on the 15th of January, 1876, the bank commenced suit against L. in an Ohio State court, to foreclose its mortgage. Process was served on L. in that action January 20. The firm were not made parties, the bank having then no actual notice of the pendency of their suit in the Circuit Court. On the 23d of February, 1876, the firm commenced the action at bar against the bank, in the United States Circuit Court, to set aside the mortgage. The subpoena was served February 25 and was returnable April 1. The term of the State court in which the action to foreclose the mortgage was pending, commenced February 7, and on the 7th of March, during that term, judgment of foreclosure and sale was rendered. Held, that the firm was bound by such judgment. There cannot be a doubt that the State court had jurisdiction of the suit instituted by the bank, and as was said in Peck v. Jenness, 7 How. 624, "it is a doctrine of law too long established to require the citation of authorities, that where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding on every other court; and that where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court." The mere fact, therefore, that the firm commenced this suit in the Circuit Court before judgment was rendered in the State court in favor of the bank is of no importance. The point is whether the judgment in the State court binds the firm, they not having been parties to the suit in which it was rendered. The rule is, that where suits between the same parties in relation to the same subject-matter are pending at the same time in different courts of concurrent jurisdiction, a judgment on the merits in one may be used as a bar to further proceedings in the others. It is also an elementary rule that "if, pending a suit by a mortgagee to foreclose the equity of redemption, the mortgagor makes a second mortgage, or assigns the equity of redemption, an absolute decree of foreclosure against the mortgagor will bind the second mortgagee, or assignee of the equity redemption." Mitford's Pl., p. 73; Story's Ex. Pl., § 351; Eyster v. Gaff, 91 U. S. 521. Before the judgment in their favor, the firm were only creditors at large, power less to affect the foreclosure proceedings. In the State court the mortgagor represented all who, pending the suit, acquired any interest through him in the property about which the controversy arose, and those parties were bound by the judgment therein. See Cromwell v. County of Sac, 94 U. S. 352. Decree of U. S. Circ. Ct. N. D. Ohio, affirmed. Stout v. Lye. Opinion by Waite, C. J. [Decided March 21, 1881.] MORTGAGE-TO NATIONAL BANK TO SECURE SUBSEQUENTLY ACCRUING INDEBTEDNESS. Defendant executed a mortgage, on the 12th of January, 1871, to a National bank as security for the payment of $5,000 one year from its date with interest, but which declared that it was made as collateral security for the payment of all notes which the bank held at the time against him, and for his other indebtedness then due or thereafter to become due. This mortgage was recorded on the 19th of September, 1872. It subsequently appeared that his indebtedness at the date of the mortgage was $3,200 and that this was paid before September 16, 1872. On the day last named defendant executed two other mortgages to B. and M., which were recorded the same day, as security for future liabilities that might be incurred by the mortgagees respectively in his account. The one to B., who had notice of the bank mortgage, was first recorded and after that the one to M., who had no notice of the bank mortgage. In a controversy as to the application of surplus moneys to the discharge of these three mortgages, held, that the validity of the mortgage to the bank could not be impeached under the statute forbidding National banks from loaning upon real estate security. National Bank v. Matthews, U. S. Sup. Ct., Oct., 1878. That mortgage, so far as the subsequent incumbrances are concerned, is to be regarded as a valid security for the future advances to the mortgagor. Whatever objection there may be to it as security for such advances from the prohibitory provisions of the statute, the objection can only be urged by the government. Fleckner v. United States Bank, 8 Wheat. 338-355. Held, also, that the surplus should be applied first to the payment of the mortgage to M., and that B. could not claim any of the balance until the mortgage to the bank was discharged. Decree of New York Supreme Court reversed. National Bank of Genesee v. Whitney. Opinion by Field, J. [Decided March 21, 1881.] -- PRACTICE WRIT OF ERROR-NOT IN FORM PRESCRIBED, NOT EFFECTIVE TO GIVE JURISDICTION TO THIS COURT. A writ of error by which it was sought to have reviewed a decision of the Supreme Court of Louisiana was in the name of the chief justice of the Supreme Court of the State of Louisiana. It bore the teste of that chief justice and was signed by the clerk and sealed with the seal of that court. Held, that this did not give this court jurisdiction to hear the case. Massena v. Cavazos, 6 Wall. 658. The writ did not bear a single requisite of a writ of this court. By the ninth section of the act of May 8, 1792 (1 Stat. 278, chap. 36), it was made the duty of the clerk of this court to transmit to the clerks of the several courts the form of a writ of error approved by two of the justices of this court. This was done, and the form adopted required the writ to be issued in the name of the President of the United States and have the teste of the chief justice of this court. Suit dismissed. Bondurant v. Watson. Opinion by Waite, C. J. [Decided March 21, 1881.] such eviction from his lessor, and the measure of damages, in the absence of fraud or bad faith on the part of the lessor, is the consideration paid and such mesne profits as the lessee has paid or may be liable for. The lessor is not liable for the improvements made by the lessee on the property. It is settled that the word concessi or demisi in a lease implies a covenant for quiet enjoyment during the term. Hemphill v. Eckfeldt, 5 Whart. 274; Maule v. Ashmead, 8 Harr. 482; Schuylk. & Dauph. Impr. & R. Co. v. Schmoele, 7 P. F. S. 271; Noke's case, 4 Rep. 80, b; Line v. Stephenson, 35 Eng. Com. Law, 77; Smith's Land. & Ten. 263; Rawle's Cov. Tit. (4th ed.) 464. It is settled law in England that the measure of damages for the breach of an express covenant for quiet enjoyment is the value of the property at the time of the eviction. Williams v. Burrell, 50 Eng. Com. Law, 401; Lock v. Furze, 115 id. 94; Rolph v. Crouch, L. R., 3 Exch. 44. These cases hold that the rule in Flureau v. Thornhill, 2 W. Black. 1078, that where a contract of sale of real estate goes off in consequence of a defect in the vendor's title, the vendee is not entitled to damages for the loss of the bargain, does not apply to the case of a lease granted by one who has no title to grant it. In Pennsylvania it is settled that, as between vendor and vendee, the measure of damages is the consideration paid. Bender v. Fromberger, 4 Dal. 441. This rule has been followed in other States. See Rawle's Cov. Tit. 235. A similar rule should apply between lessor and lessee. See Mack v. Patchin, 42 N. Y. 167; McClowry v. Croghan's Admrs., 1 Grant, 307. Lanigan v. Kille. Opinion by Paxson, J. [Decided Feb. 21, 1881.] ESTOPPEL-ONE DEALING WITH CORPORATION AS SUCH MAY NOT DENY CORPORATE EXISTENCE. A bank organized in an irregular manner did business as such with S. who dealt with it in its corporate character. In an action by the bank against S. upon indorsements of notes held by the bank, held, that S. could not set up as a defense that the corporation had no legal existence and therefore no right to sue. A corporation is the mere creature of the law. It can exercise no powers which are not expressly conferred or necessarily implied in furtherance of the object of its creation. Diligent Fire Co. v. Com'th, 25 P. F. Smith, 295. When, however, a charter has actually been granted to certain persons to act as a corporation, and they are actually in the possession and enjoyment of the corporate rights granted, such possession and enjoyment will be valid against one who has dealt with them in their corporate character. Ang. & Ames on Corp., § 80. He cannot be permitted to prove in a collateral proceeding that a condition precedent to its full corporate existence has not been complied with. against him, the charter and a user of rights claimed to have been conferred by it are sufficient. When there is a de facto corporation and the State does not interfere, its corporate existence and its ability to contract cannot be questioned in a suit brought upon an evidence of a debt given to it. Commissioners v. Bolles, 4 Otto, 104. It is well settled that although a charter may be declared null and void by the proper authority, yet the violation thereof cannot be determined in a collateral suit. Irvine v. Lumberman's Bank, 2 W. & S. 190. Spake v. Farmers' Bank, Carlisle. Opinion by Mercur, J. [Decided May 24, 1880.] As STATUTE OF LIMITATION — IN ACTION AGAINST RECORDER OF DEEDS FOR FALSE SEARCH. In an action against a recorder of deeds for damages resulting from a false certificate of search issued by him, no fraud being charged, held, that the statute of limitations began to run at the time the search was paid for by plaintiff, notwithstanding the special damages claimed resulted thereafter. Special damage is a result, not a cause (Howell v. Young, 5 B. & C. 259), the gist of the action being the misconduct of the defendant. In the case cited it was held that special damages resulting from a breach of duty do not constitute a fresh ground of action, but are merely the measure of the injury resulting from the original cause. This doctrine was held in Wilcox v. Plummer's Exrs., 4 Pet. 172, which was an action for a loss resulting from the neglect or unskillful conduct of an attorney; in Bank of Utica v. Childs, 6 Cow. 245, where the action was founded on the default of a notary in not giving notice of the nonpayment of a promissory note; in Miller v. Adams, 16 Mass. 456, where the suit was against a deputy sheriff for a breach of official duty in making a defective return to an original writ; in Moore v. Juvenal, 8 W. N. C. 411, which was a suit brought to recover damages arising from the negligence of an attorney in prosecuting a claim. To the same purpose are Campbell's Executors v. Boggs, 12 Wr. 524; Downey v. Garard, and Miller v. Wilson, 12 Harr. 52. All these authorities only serve to illustrate that the commencement of the limitation is contemporaneous with the origin of the cause of action. Owen v. Western Saving Fund. Opinion by Gordon, J. [Decided Jan. 31, 1881.] NEW JERSEY SUPREME COURT ABSTRACT. NOVEMBER TERM, 1880.* ATTORNEY LIEN OF RELEASE OF JUDGMENT FOR LESS THAN AMOUNT DUE. — (1) The right of lien for an attorney's costs exists only where he has received money upon the judgment in the cause, or he has arrested it in transitu, or where the defendant has paid the judgment after receiving notice of the attorney's claim. 1 Tidd. Pr. 338; Welsh v. Hole, Doug. 238; Chapman v. Haw, 1 Taunt. 341; Lake v. Ingham, 3 Vt. 158; Heart v. Chipman, 2 Aik. 162; Martin v. Hawks, 15 Johns. 405; Berry v. Berry, 2 Har. 440. (2) A release under seal of a judgment, although it appears that the consideration paid for such release is less than the judgment, is a satisfaction of the judgment. Coke Litt. 212 b. Braden v. Ward. Opinion by Reed, J. CARRIER-EXPULSION OF RAILWAY PASSENGER FROM TRAIN. The plaintiff was riding in the cars, by virtue of a ticket that did not give him the right to a discontinuous passage. Having stopped at an intermediate point, and having entered another train, he claimed the right to continue his journey on such ticket under permission given by a conductor of the first train. Refusing to pay his fare, he was put off, it appearing that only train agents had the power to modify the force of such tickets. Held, such expulsion was justifiable, although at the trial the plaintiff testified that it was, in point of fact, a train agent and not a conductor that had given him the privilege claimed. Petrie v. Pennsylvania Railroad Co. Opinion by Beasly, C. J. EVIDENCE-SECONDARY EVIDENCE-IF PUBLIC RECORDS NOT FOUND WHERE THEY SHOULD BE KEPT, COPIES MAY BE INTRODUCED WITHOUT FURTHER SEARCH. In an action for a malicious prosecution, in causing the arrest of the plaintiff on a criminal charge, it appearing that the justice before whom the complaint was made had transmitted the original complaint and his warrant issued thereon to the prosecutor of the pleas, unsuccessful search in the clerk's office and among the papers of the prosecutor is sufficient to justify secondary evidence of the contents of the original complaint and warrant, though it be shown that these papers were last seen when they were before the grand jury on its investigation of the charge, and no search was made for the papers in the grand jury room. To justify the admission of secondary evidence of the contents of Appearing in 13 Vroom's (42 N. J. Law) Reports. --- a paper, on an allegation of the loss or destruction of the original, as a general rule, the party is expected to show that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest and which were accessible to him. If any suspicion hangs over the instrument or there are circumstances tending to excite a suspicion that it is designedly withheld, the most rigid inquiry should be made into the reasons for its non-production; but where there is no such suspicion, all that ought to be required is reasonable diligence in the effort to obtain the original. The degree of diligence which shall be considered necessary in any case will depend on the circumstances of the particular case the character and importance of the paper, the purposes for which it is proposed to use it, and the place where a paper of that kind may naturally be supposed to be likely to be found. If the document be one of public concern and there be by law a place where such instruments, in due course of law, should be deposited and be found, search in that place is all that will be required, and in the absence of grounds of suspicion that the original is fraudulently withheld, will justify the admission of secondary evidence without calling persons who have had access to the paper, and might have the original in their possession. 1 Whart. on Ev., § 141; 1 Tayl. on Ev., § 399; 1 Greenl. on Ev., § 558; Sampson v. Dall, 3 Wall. 460; Minor v. Tillotson, 7 Pet. 99; Hart v. Hart, 1 Hare, 1; McGahey v. Alston, 2 M. & W. 206; King v. Inhabitants of Morton, 1 M. & S. 48; Clark v. Hornbeck, 2 C. E. Green, 430; Reg. v. Overseers of Hinckley, 3 B. & S. 885; Smith v. Axtel, Saxt. 494; Kingwood v. Bethlehem, 1 Green, 221; Reg. v. Inhabitants of Stourbridge, 8 B. & C. 96; Reg. v. Saffron Hill, 1 El. & Bl. 93; Fernley v. Worthington, 1 M. & G. 491; Jackson v. Russell, 4 Wend. 543; Teall v. Van Wyck, 10 Barb. 376; Francis v. Ocean Ins. Co., 6 Cow. 404; Proprietors v. Battles, 6 Vt. 395; Winshall v. Lloyd, 2 M. & W. 450; Freeman v. Arkell, 2 B. & C. 494. Johnson v. Arnwine. Opinion by Depue, J. MAINE SUPREME JUDICIAL COURT AB STRACT.* ASSAULT ABUSE OF SPECIAL AUTHORITY NOT OF LEGAL RIGHT MAKES ONE TRESPASSER AB INITIO SELF-DEFENSE. It is the abuse of some special and particular authority given by law, and not of a legal right which is common to all, which will make a man a trespasser ab initio and so responsible for all his acts in the transaction, and liable to make compensation to the injured party for all the damage he has suffered, whether it arose from acts which would have been justifiable if the legal right had not been exceeded, or otherwise. Where the legal right of self-defense has been exceeded, the party so offending is liable only for the excess of force, and not for any damage which his opponent may have suffered from acts that were within the proper line of self-defense. Rogers v. Waite, 44 Me. 276; Jewell v. Mahood, 44 N. H. 474; Dingley v. Buffum, 57 Me. 379; Brown v. Gordon, 1 Gray, 185; Esty v. Wilmot, 15 id. 168; Coleman v. New York, & N. H. R. Co., 106 Mass. 164; Bagshaw v. Gaward, Yelv. 97. Turner v. Footman. Opinion by Barrows, J. NEGLIGENCE-DRIVING ON HIGHWAY-EVIDENCE - REPUTATION OF DRIVER. — (1) It is the right of every one to travel on any part of a highway that may suit his taste or convenience not occupied by another, provided no one is meeting him with teams and carriages having occasion or a desire to pass. Palmer v. Baker, 11 Me. 339; Brooks v. Hart, 14 N. H. 310; Angell on * To appear in 71 Maine Reports Highw., § 332; Foster v. Goddard, 40 Me. 66. (2) The reputation of the driver of a horse and carriage is inadmissible in an action by the owner of another horse killed by a collision therewith, to recover its value. Hays v. Millar, 77 Penn. St. 238. Dunham v. Rackliff. Opinion by Appleton, C. J. SALE OF PERSONAL PROPERTY CONDITIONAL SALE -TITLE TO GOODS SOLD IN COURSE OF TRADE. - Goods bought by a retail trader upon a condition that the property shall not vest in him until they are paid for, but with an understanding between him and his vendor that they are to go into his store and be sold by him in the regular course of trade, will not pass to his assignee in insolvency, or for the benefit of creditors, although the original vendor would be estopped to deny the title to those who might purchase portions of them of the retailer in the regular course of his business. It is not essential to the existence and validity of such a condition that the conditional vendor should have no right to sell to others. His assignee takes only such right as he himself could assert in the goods against his vendor, and if he has agreed that the property in the goods shall remain in the vendor until they are paid for, the vendor may replevy them from his assignee although such vendor could not dispute the title of those who had purchased portions of them in good faith and in the regular course of trade from his vendor. Pickering v. Burk, 15 East, 38; Goss v. Coffin, 66 Me. 432; Hersey v. Elliot, 67 id. 527; Whitney v. Eaton, 15 Gray, 226; Burbank v. Crocker, 7 id. 158; Stone v. Perry, 60 Me. 48; Hussey v. Thornton, 4 Mass. 407; Hill v. Freeman, 3 Cush. 259; Tibbetts v. Towle, 12 Me. 341. Rogers v. Whitehouse. Opinion by Barrows, J. valid and binding as if he had been a judge de jure. See Griffin's ex'or v. Cunningham, 20 Gratt. 31; Quinn v. Commonwealth, id. 138; Bolling v. Lersner, 26 id. 36; Blackw. on Tax Tit. 92; State v. Bloom, 17 Wis. 521; People v. White, 24 Wend. 520. (2) During the year 1880 B. was entitled to the office in question. Held, that the fact that he did not immediately proceed to oust A., but practiced as an attorney in his court, would not operate either as a surrender or forfeiture of his office. McCraw v. Williams. Opinion by Christian, J. [Decided Sept. 24, 1880.] STATUTE OF LIMITATIONS MORTGAGE. In the case of a claim secured by a mortgage, although the remedy by an action at law for the claim may be barred by the statute of limitations, the remedy under the mortgage will not be affected by any lapse of time short of the period sufficient to raise the presumption of payment. Hanna v. Wilson, 3 Gratt. 242; Coles v. Withers, 33 id. 186; Elkins v. Edwards, 8 Ga. 325; Thayer v. Mann, 19 Pick. 535; Pratt v. Huggins, 29 Barb. 277; Borst v. Corey, 15 N. Y. 505; Belknap v. Gleason, 11 Conn. 160; Miller v. Trustees of Jeff. Coll., 5 Sm. & M. 651; Trotter v. Erwin, 27 Miss. 772; Nevitt v. Bacon, 32 id. 212; Joy v. Adams, 26 Me. 330; Wiswell v. Baxter, 20 Wis. 713; Cookes v. Culbertson, 9 Nev. 199; Angell on Limit. 73, 74; 3 Pars. on Cont. 99, 100. Smith's Executrix v. Washington City, Virginia Midland & Great Southern Railroad Co. Opinion by Burks, J. [Decided Dec. 17, 1880.] VIRGINIA SUPREME COURT OF APPEALS sureties, in the absence of any agreement to the con ABSTRACT.* EQUITABLE ACTION - RECEIVERSHIP IN FORECLOSTM URE UPON RAILROAD - PREFERENCE-CLAIMS - FOR SERVICES AND MATERIALS. Where a railroad has been taken possession of by a court of equity, and a receiver to manage the road has been appointed, if at the time the receiver was appointed the railroad company was indebted for services rendered or materials furnished them, these creditors are entitled to be paid out of the net revenues of the road in preference to the mortgage bondholders; and if said net revenues have been applied to pay interest to these bondholders, or to the repair, improvement, or the extending of the road, upon a sale of the road the proceeds of the sale of the road to the extent of the said net revenues are to be applied to the payment of these creditors. Fosdick v. Schall, 9 Otto, 235; Hale v. Frost, id. 389; Atkins v. Petersburg R. Co., 3 Hughes, 313; Owen v. Homan, L. R., 4 H. L. 997; Syracuse City Bk. v. Tallman, 31 Barb. 201; Douglas v. Cline, 12 Bush, 608; Duncan v. Chesepeake & Ohio R. Co., 3 Cent. L. J. 579; Ellis v. Bost., Hart. & E. R. Co., 107 Mass. 1. See also Tyler v. Salmon, 4 Myl. & C. 137; Mare v. Mullany, 1 id. 559; Redf. on Railw. 447. Williamson's Administrators v. Washington City, Virginia Midland & Great Southern Railroad Co. Opinion by Staples, J. [Decided Jan. 13, 1881.] OFFICE OFFICER DE FACTO ACTS OF, VALIDTHAT OFFICER DE JURE DOES NOT OUST, NO SURRENDER. — (1) A. was elected in January, 1880, judge of the county court of Halifax and commissioned by the governor; and believing that his term commenced immediately he proceeded to hold the court and transact business. His term did not, however, commence until the first of January, 1881. Held, that during the year 1880 he was a judge de facto; and his judgments were Appearing in 33 Grattan's Reports. trary, become co-securities of the same principal, and this relation may be established by implication from circumstances as well as by express agreement. But where there is a judgment against a principal and his surety, and a third party at the instance of the principal, and for his sole benefit and without the assent of the surety, enters as surety for the principal in an obligation the effect of which is to suspend the execution of the judgment, and thus prejudice the rights of the first surety, the equity of the first surety is superior, and the second would not be entitled to contribution from the first; and according to some authorities the first would be entitled to indemnity from the second. Deering v. Earl of Winchelsea, 2 Bos. & Pul. 270; Langford v. Perrin, 5 Leigh, 552; Douglass v. Fagg, 8 id. 588; Givens v. Nelson's ex'or, 10 id. 382; Stout v. Vause, 1 Rob. 169; Robinson v. Sherman, 2 Gratt. 178; Bently v. Harris' admr., id. 357; Leake v. Ferguson, id. 419; Preston v. Preston, 4 id. 88; Hartwell v. Smith, 15 Ohio St. 200. Harnsberger v. Yancey. Opinion by Burks, J. [Decided Sept. 25, 1880.] CRIMINAL LAW. CONSTITUTIONAL LAW STATUTE ALLOWING INDICTMENT IN COUNTY WHERE OFFENSE NOT COMMITTED, INVALID IN MISSOURI.—The Constitution of Missouri declares that "no person shall, for a felony, be proceeded against criminally, otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia," etc. A statute of that State provides that "whenever a felony has been committed in any county, and the grand jury of the county has considered the matter, and failed to find an indictment, etc., and the same is certified to the judge of the same Circuit, from the foreman of the grand jury or the clerk of the Circuit Court, etc.,and the judge, |