its limits, and that when such municipality had exercised such authority by passing restraining and regulating ordinances, a person could not be convicted under an indictment for violating the State law on that subject, but was amenable only to the ordinances. The case of Gardner v. People, 20 Ill. 430 was an indictment under the State law for selling liquor without a license, and it was argued that because the legislature had conferred upon the City of Monmouth power to license, regulate and prohibit the sale of liquors in the city limits, the State law on that subject was repealed by implication. But the court held that the power conferred upon the city was not exclusive, and that the legislature did not, by merely giving the city the right to act, repeal the general law of the State on the subject; and the court expressly declined to decide whether the law and the ordinance could both be enforced by a punishment under each. In the case of Berry v. People, 36 Ill. 423, this court went further and held that where the charter of the City of Belleville conferred authority, but not exclusive authority, on the city to suppress or restrain gambling, the city ordinance passed on that subject and the State laws were concurrent, and that a judgment recovered under the ordinance would bar a recovery by the State for the same cause. But later, in the case of Fant v. People, 45 Ill. 259, the court recedes from the position assumed in Berry v. People, and expressly declines to decide that the jurisdiction is concurrent, and whether both the ordinance and the State law can be enforced together. "Even if the jurisdiction should be held to be concurrent and that the exercise of the power by the city was cumulative, the State first acquired jurisdiction and there being no pretense that plaintiff in error had been proceeded against under the city ordinance it can therefore be no defense that he had been liable to prosecution under the ordinance. Had he been convicted under the ordinance for this offense then a very different question would have been presented. But that question is not now before us for determination, and we deem it unnecessary to discuss it." The court in that case left the question in about the attitude in which it was placed by Gardner v. People, 20 Ill. 430, and it can not be said that the law is settled by this court, for the fair construction of the opinion in Fant v. People is that a city ordinance on the same subject as a general law, both imposing penalties for the same act, neither repeals the law nor is it repugnant thereto; but that the ordinance and the law are either separate provisions both capable of being enforced, or concurrent remedies only one of which may may be enforced; and the court fails to determine whether they are separate or concurrent.

We think there is no doubt but that it is within the power of the legislature to create two or more offences which may be committed by a single act, each of which is punishable by itself. A conviction or acquittal in such case under either statute would be no bar to a conviction under the other, for the accused would not be twice in jeopardy for one offense, but only once in jeopardy for each

offense. Assuming the power of the legislature to be as above stated, in what light do the two sections under consideration stand to each other? Section 58, chapter 121, Rev. Stat. of 1874. was intended to furnish to every town of the State a remedy for obstructing the highways in the town. It is a matter of importance to the town to have its highways free from obstructions, and a damage to it and its inhabitants in case its highways are obstructed, entailing upon the town expense and inconvenience. But the town and its inhabitants are not alone interested in its highways. The people of the State are also interested in the highways, although that interest is not of a directly pecuniary character. Can it be said that the legislature may not protect the rights of the public in the highways of the State by punishing infringements of those rights by individuals without repealing the remedy for the injury sustained by the town in which the act is committed?

The laws as they stand give to the town a right of action to recover by suit a penalty or fine in the nature of compensation for an obstruction of a highway in the town, the penalty when collected to be expended upon the roads and bridges in the town where the offense was committed; and for an obstruction of a highway an indictment for a nuisance may be had to punish the injury to the State and the public at large by fine for the first offense and for subsequent offenses by fine and imprisonment. The two laws are passed in fact upon different subjects and distinct injuries; one is intended to deal with the consequences of the act upon the town, and the other with the cousequences of the same act upon the State. The injury is double, and the punishment may be double. There is no repugnance or inconsistency between the two provisions, and in our opinion both may stand and be enforced independently and without interference with each other.

For the reasons above stated we hold that the action was properly brought under section 58 of chapter 121, Rev. Stat. of 1874, and that the motion to dismiss for want of jurisdiction was properly denied.

[The remainder of the opinion being on a minor point is omitted.]

for a proportional part of the debt, except when the relation of principal and surety exists. If the decedent was a surety his estate is not liable at all, but if he was a principal his estate is liable for the whole debt.

2. This rule applies to actions brought against the administrator of a deceased, and the surviving joint debtor, as well as to claims filed against the decedent's estate. Myers v. State, 47 Ind. 293, criticised.

3. Where a note on its face does not disclose the relationship of principal and surety between the makers, it is competent to prove by parol that such relationship existed, and that the payees of the note had notice of the fact; but an answer of suretyship which does not allege such notice is bad.

WORDEN, J., delivered the opinion of the court: The appellants sued the appellees and Willis Armstrong on the following note: "$3,399.08.

MARSH CREEK, Nov. 11, 1873. Three years after date we promise to pay to the order of W. H. & J. F. Hudelson, administrators of the estate of Samuel Hudelson, deceased, the sum of $3,399.08, with five per cent. attorneys fees if suit be instituted on this note, value received, without any relief from valuation or appraisement laws, with interest at the rate of ten per cent. per annum from date. The drawers and indorsers severally waive presentment for payment, protest and notice of protest and nonpayment of this note. Interest to be paid yearly. (Signed.) WILLIS ARMSTRONG, W. S. ARMSTRONG." Willis Armstrong made default and judgment was taken against him accordingly.

The appellees, the administrators of the estate of William S. Armstrong, pleaded as follows: "The said defendants, for their further and separate answer herein, say that the said William S. Armstrong executed the note sued on herein jointly with the said Willis Armstrong as his surety, and for no other consideration whatever; that the said Willis received the entire consideration of said note; that said William S. Armstrong died leaving his co-maker surviving him. Wherefore," etc. The plaintiffs filed a demurrer to this paragraph of answer for want of sufficient facts, but it was overruled and exception taken. Such further proceedings were had as that judgment was rendered for the appellees herein.

The only question involved in the case is whether the court erred in overruling the demurrer to the paragraph of answers above set out.

There can be no doubt that at common-law, upon the death of one of a number of joint, and not joint and several obligors or promissors, his estate is entirely discharged from the obligation. United States v. Price, 9 How. 83; Pickersgill v. Lahens, 15 Wall. 140; Getty v. Binsse, 49 N. Y. 385; Wood v. Fisk, 63 N. Y. 245; Risley v. Brown, 67 N. Y. 160. The survivors alone can be sued.

There may be cases in which a court of equity will hold the personal representatives of the deceased joint contractor liable. 1 Story Eq. §§ 162-3-4. What was said by this court with reference to such liability in the cases of Weyer v. Thornburgh, 15 Ind. 124, and Kimball v. Whitney, Id. 280, must be understood as having reference to partnership debtors (as is shown by the first

mentioned of these cases), whose obligations are said to be considered in equity both joint and several. But the authorities above cited clearly establish the proposition that where the deceased joint contractor was the surety of the survivor his personal representatives can not be held liable for the debt, either at law or in equity. See, also, Brandt on Suretyship, § 117. Our statute has, however, to some extent changed the common law rule on this subject. It is provided that "where two or more persons are bound in any joint contract, or in a judgment founded thereon, and either of them shall die, the proportionable part of such contract may be allowed against his estate, except where the relation of principal and surety exists, and in that case, if the decedent be the principal, the whole of such contract shall be allowed against such estate." 2 R. S. 1876, p. 518, § 70.

It is thus seen that, save in some exceptional cases, in which a court of equity will, perhaps, hold the estate of a deceased joint contractor liable for the debt, such estate is not liable at all beyond what is provided for by the statute. The statute makes the estate of the deceased joint debtor liable for a proportional part of the debt, except where the relation of principal and surety existed; and if the decedent was a surety his estate is not made liable at all; but if the decedent was the principal his estate is made liable for the whole debt. The statute measures the liability of the estate of the deceased joint contractor; for without it such estate would not be, as a rule, liable at all. And it seems to us that the statute measures the liability of such estate, whether the claim be filed against the estate alone, or an action he brought against the administrator of the deceased, and the surviving joint contractor.

We are of opinion, therefore, that this court fell into an error in the case of Meyers v. State, 47 Ind. 293, in holding that section seventy of the statute above quoted did not apply to actions brought against the administrator of deceased, and the surviving joint contractor, and that in such case judgment might be rendered against the administrator for the full amount of the claim. In whichever way the claim is sought to be enforced the statute determines the amount for which the estate may be held liable. Without the statute, as has already been said, the estate would not, as a rule, be liable at all. From what has already been said it is apparent, viewing the makers of the note as principals, that the representatives of the decedent would be liable by virtue of the statute for one half the amount due, that being the proportional amount in this case, there being two contractors.

But the paragraph of answer in question sets up that the decedent was a surety upon the note. If this answer is well pleaded in all respects it bars the action against the appellant, and the demurrer to it was correctly overruled; for the statute does not make the estates of deceased sureties liable at all upon joint contracts. The note set out does not show that the deceased maker was a surety. On the face of the note both makers ap

pear to be principals. The payees have a right to regard both makers as principals unless they had notice of the relation of principal and surety between them. While the note on its face does not disclose the alleged relationship between the makers it is competent to allege and prove by parol that such relationship existed, and that the payees had notice of that fact at the time they took the note; but without such notice to the payees they have a right to treat the makers both as principals. Brandt on Suretyship, §17; Davenport v. Kink, 63 Ind. 64; McCloskey v. Indianapolis Manfg. Co. (Nov. 12, 1879,) The paragraph in question was bad for not averring notice to the plaintiffs of the relation of principal and surety between the makers as alleged.

The judgment below is reversed as against appellants, with costs, and the cause remanded for further proceedings in accordance with this opinion.

This action was commenced in the usual way; the complaint was filed in the clerk's office and a summons issued and served upon the defendants. The suit is upon the joint note of the defendant, James L. Wasson, and the decedent, Newton A. Wasson. The complaint avers the death of Newton A. Wasson and asks for an allowance against his estate. The answer of the defendant, Thomas Marvel, as administrator of the estate, avers in substance that the decedent executed the note jointly with the defendant, James L. Wasson; that the said James L. Wasson was the principal therein, and received all the consideration therefor, and that the said decedent was only surety there

on.

Demurrer by plaintiff to the answer, for the reason that the same does not state facts sufficient to constitute a defense to the plaintiff's cause of action.

The case presented by the pleadings is this: Is the estate of a deceased surety liable in a joint action along with the surviving principal, to the payee of such note? If the estate of the decedent was not discharged from liability upon the note by reason of his death, both at law and in equity, then it is clear that under the code of this State, as construed by the Supreme Court, the administrator of the decedent may be joined with the survivor, and an allowance made against the estate in one and the same action.

The authorities are not uniform upon this subject. Many of them are to the effect that where one of the makers of a joint contract, who has received a benefit from the transaction, dies, his administrator can not be joined in a suit against the survivor. Bliss, Code Pleading, sec. 107 and note. But in Indiana the rule is settled otherwise. Braxton v. State, 25 Ind. 82; Meyers v. State, 47 Ind. 293, and Weyer v. Thornburg, 15 Ind. 124. It was claimed by the plaintiff in oral argument, that the last mentioned authorities are decisive of the real question involved in this case. I do not so understand them. In each of the cases of Braxton v. State and Weyer v. Thornburgh, supra, the decedent was a principal debtor in the contract, and in the case of Meyers v. State, supra, the bond was joint and several, both in fact and in law. 2 Davis' Statutes, p. 500, sec. 19. So that in none of these

cases was the principle involved here either discussed by the court or decided. According to the facts stated in Braxton v. State and Weyer v. Thornburgh, while the decedents were not liable at common law, yet, they having received a benefit from the contract and though the contract was joint in form, equity will hold it to have been so drawn by mistake, will treat it as joint and several and give relief accordingly. Bliss, Code Pleading, sec. 105. There was then nothing before the court in either of the cases cited, except a question of practice. Equity fixed the liability in two of the cases, and the statute and the form of the bond in the other. It was not a question as to whether the estates of the deceased makers were discharged or not, but simply one of practice, whether the personal representatives could be joined with the survivors.

In this case the decedent signed a joint contract and incurred a joint liability, and no other. The pleadings. admit that he was a surety and received no benefit from the contract. There are many well considered cases to the effect that by the death of a surety, when he is bound only by a joint contract, his estate is absolutely discharged from liability, both at law and in equity. In a case involving this principle, Mr. Justice Grier, in 9 How. 90, says: "The obligation of a surety arises only from positive contract. This contract is construed strictly, both at law and in equity, and the liability of the surety can not be extended by implication beyond the terms of his contract. If he contract jointly with his principal it is legal consequence, known to all the parties, that his estate will be discharged in case he should die before his principal. * * And equity will not interfere to charge his estate, on the ground that such discharge arises from the mere technicalities of the law." See also, to the same effect, Getty v. Binsse, 49 N. Y. 385; 63 N. Y. 245; 67 N. Y. 160; 15 Wall. 140; 2 Wall. 234; 8 Wheat. 212-213; Story's Eq. secs. 162-164. Brandt on Suretyship, sec. 117, says: "When the surety in a joint obligation dies, there is no remedy at law on the obligation against his estate, and in the absence of fraud or mistake equity will not charge his estate with the payment of such obligation. Where an obligation is joint, and all the obligors participated in the consideration, or there is any previous equity which imposes a moral obligation to pay on all the obligors, there a court of equity will enforce the obligation against the estate of the deceased obligor, because the reasonable presumption is that the parties intended the obligation to be joint and several, but through fraud or mistake it was made joint only. But this presumption is never indulged in the case of a mere surety, whose duty is measured alone by the legal force of the bond, and who is under no moral obligation whatever to pay the obligee, independent of his covenant, and consequently there is nothing on which to found an equity for the interposition of a court of chancery." See the remainder of the section and the authorities there cited. There are many other cases deciding the same principle. I shall not refer to them here, for I believe it is substantially conceded by the plaintiff's counsel, that this was the rule at common law and in equity, and that the law is with the defendant, unless the rule has been changed by statute in. this State.

It is claimed on behalf of the plaintiff that, according to section 783 of the code (2 Davis' Statutes, 309), the cause of action which the plaintiff had against Newton A. Wasson in his life time, upon his death survived and may be brought against his administrator. The section is as follows: All other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions or promises to marry." It is urged on behalf of the

- defendant, that this section, when construed in connection with sections 782 and 784, was only intended to embrace that class of actions that died with the person, according to the common law rules.

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Upon an examination of the legislation of the State in regard to the subject of joint estates, and joint contracts, it will be seen that as early as the year 1817, joint estates were made common, and that the representatives of a joint obligor was charged by virtue of the joint contract. Statutes of 1838, p. 357. The case of Ransom v. Pomeroy Admr., 5 Blk. 383, was determined according to this statute. This act was perhaps never repealed until the general repealing act of 1852 (1 Davis' Statutes, 768), though to proceed severally against joint contractors and the representatives of a deceased obligor was reenacted in the statutes of 1843. See Rev. Statutes, 1843, sec. 31, p. 675, and sec. 467, p. 573. The intent of the legislature of the State to break down and abolish the technical rules of the common law in regard to joint contracts and joint estates, was clear until the general revision of 1852. There are no provisions found in any of the legislation since 1852, similar to those above referred to that existed prior to that time. On the contrary, the right to create joint estates is expressly recognized by sec. 7, 1 Davis' Statutes, p. 363, and the common law of England is declared to be the law of this State, when not in conflict with the legislation of the State. 1 Davis' Statutes, 605.

*

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In the well considered case of Erwin v. Scotten, 40 Ind. 389, Buskirk, J., says: "In our opinion the · code has not changed the principles of the common law, as applicable to joint obligations, but has provided a new and more efficient remedy against those who were not originally summoned. * The release of one joint obligor is a release of all the other joint obligors." Again he says: "There can be but one judgment rendered on a joint obligation. The joint obligation can not be changed into a several obligation. * The makers of a joint note are jointly liable, but their joint liability can not be converted into a several liability, as would be the case if separate judgments could be rendered on a joint note." Now if the joint liability can not be converted into a several liability, and if a joint action only can be maintained against the joint makers of a note, then it seems to me that the plaintiff in this saction never had any cause of action against Newton A. Wasson alone which could survive, even conceding that section 783 before cited applies to contracts. had a joint cause of action against Newton A. Wasson and the defendant, James L. Wasson, which cause of action upon the death of Newton can be prosecuted against the survivor, James L. Wasson only. If the estate of the decedent was liable in equity, then under the provisions of section one of the code, that equitable liability might be determined in this action. But I think the authorities already cited upon that point conclusive, and establish the proposition that the estate of the decedent, if in fact he was only surety, is absolutely discharged, both at law and in equity. "The abolition of the distinction between actions at law and suits in equity, does not entitle a party to recover in a case where before such abolition he could not have recovered either at law or in equity." Woodford v. Leavenworth, Admr., 14 Ind. 311. Judge Bliss, at section 106, in his work on Code Pleading, says: "Whether, then, in a joint obligation, or in one made joint in effect by statute, the personal representatives of a deceased joint obligor could be united as a defendants with the survivors should, upon principle, depends upon the law of liability. *

As to the obligations of trustees as such, they are

joint in fact and the demand is only against the living.›› So, in case of a surety, one who has received no benefit whatever from the contract, the obligation exists only by virtue of the covenant; its extent can be measured only by the words in which it is conceived; there being no several liability, either at law or in equity, it would seem that the demand as in case of trustees, was only against the living.

I do not think that section 783, supra, of the code, can be construed into creating a cause of action that did not exist, either at law or in equity, prior to the adoption of the code. As before stated it seems to be well settled that the plaintiff had no several cause of action against the deceased in his life time, and he has no equitable cause of action against his estate since his death. To give the section the construction claimed for it by the plaintiff, would thereby create a cause of action that had no existence either in law or equity before its adoption. This does not seem to have been the intent of the code. The intent, so far as appears from the title, appears to have been for the purpose of regulating the practice and pleading in courts, and to provide for the administration of justice as to causes of action that existed or might thereafter exist either at law or in equity. The title is as follows: "An act to revise, simplify and abridge the rules, practice, pleadings and forms in civil cases in the courts of this State, to abolish distinct forms of action at law, and to provide for the administration of justice in a uniform mode of pleading and practice, without distinction between law and equity." It will be seen that there is nothing said in the title of the act about creating any new cause of action. If the legislature had provided that causes of action that were heretofore joint, should be several or joint and several, then the cause of action would survive and might be brought against the representatives of the deceased party. But as Judge Buskirk correctly states, there has been no change of the common law rule upon this subject. The common law is in force in this State where there is no legislation to the contrary. The estate of the decedent under the rules of the common law would have been discharged from liability upon his death. If he were a surety only upon the joint contract his estate would never have been liable in equity, unless there was proof of a mistake as to the manner of drawing the instrument so that it could be reformed and made several. And there being no legislation in this State providing that joint contracts shall be several, or that a joint cause of action shall survive against the deceased surety, I think it reasonably clear that upon the death of the decedent, Newton A. Wasson, his estate was discharged from liability, and that the demurrer to the answer is not well taken.

is

Upon examination of the legislation of other States it will be found that in Ohio, Missouri, Iowa, and perhaps some other States, joint contracts have been made seyeral by express legislative enactment, and the obligee permitted to prosecute his cause of action severally against the obligors or the representatives of the deceased obliger, yet in each State there an independent provision as to the causes of action that survive. In Iowa the provision is as follows: "All causes of action shall survive and may be brought, notwithstanding the death of the person entitled or liable to the same." Code, 1873; § 2525. The provisions of § 2525 of the Iowa code are certainly as broad and comprehensive as those of § 783, supra, and yet the legislation of that State proceeds upon the theory that in order to create a cause of action against the estate of a deceased joint contractor, it was necessary to sever the joint nature of the contract and then provide that the cause of action should survive.

That a cause of action in this State may be brought against the survivor and the personal representatives of the deceased joint obligor, where both the survivor , and the decedent were principals in the joint contract, I have no doubt; but the right exists, I think, only by virtue of sections one and eighteen of the code, and not by virtue of § 783. And such seems to have been the opinion in the case of Braxton v. State, 25 Ind. 82. The argument of the court in that case is cited with approval by Mr. Pomeroy in his work on Remedie and Remedial Rights, (see § 303, and note) and the opinion pronounced an able and instructive decision, as to the true intent and meaning of the code.

The estate of a joint contractor was not liable under the rules of the common law, but in equity his estate was liable if he received any benefit from the contract, and the code (§ 1), having abolished the distinction between law and equity, we proceed now against the survivor and the representative of the decedent in one and the same action, because there was a right in equity to hold the estate of the decedent responsible. If it were true that § 783, supra, created a right or cause of action that did not exist either at law or in equity, then in case of joint obligees in a joint obligation, the personal representatives of the deceased joint obligee would be proper and necessary party plaintiffs, for the language of the section is: all other causes of action survive and may be brought by or against the representatives, etc." I think the general understanding has always been among lawyers, that upon the death of one of the joint obligees the action must then be brought by the survivor, that there was no several cause of action after the death to be prosecuted by the survivor and the representatives of the deceased. § 226 of Pomeroy on Remedies and Remedial Rights, the writer in discusssing this question says: "The ancient rule requiring all the joint obligees to unite in action brought upon their contract, has not been abrogated, and only modified perhaps in the single particular of permitting parties to be made defendants who refuse to join as plaintiffs. * In actions ex contractu, all persons having a joint inter-est must be made plaintiffs, and, when one of the m dies, the action must be brought or must proceed in the name of the survivors; the personal representatives of the deceased obligee or promisee can not be joined as co-plaintiffs.”

At

As before stated, this is a joint action against the survivor, James L. Wasson and the administrator of the estate of Newton A. Wasson, commenced in the usual way by complaint and summons. If the plaintiff has judgment in this action against the estate of the decedent, it must be upon the joint contract and for the full amount shown to be due; hence, whether the plaintiff can under section seventy of the act in relation to decedent's estates (2 Davis Stat. 518), file his claim in the clerk's office, and have a proportional part of the amount unpaid allowed as a claim against the estate of the decedent, is a question not now presented, and I make no suggestions as to the proper construction of that section. It has been repeatedly held that the section has no application, when the representatives of the deceased joint obligor is sued along with the survivor. Meyers v. State, 47 Ind. 293.

The matter set up in the answer, if true, constitutes a good defence to the complaint. It shows a state of facts under which the estate of the decedent would be absolutely discharged from all liability, both at law and in equity, and in my opinion, the legislature of the State, not having altered the common law or equity rules in regard to contracts of this character, it would be judicial legislation for the court to interpose on behalf of the obligees. The fact that for nearly forty years during the existence of the State, the joint character of all contracts, notes, bills, etc., was

effectually abolished in plain and unmistakable terms, and that during that time commercial men, bankers, and in fact all classes, had come to regard a joint note, bill or contract as of the same effect under all circumstances as a joint and several one, may be a strong argument why the legislature should reenact in substance the prior legislation upon the subject, but it can afford no just grounds for the courts to interpose and charge the estate of a deceased joint maker, if in fact he received no benefit and none of the consideration for the note.

The demurrer will be overruled.

ABSTRACTS OF RECENT DECISIONS.

UNITED STATES SUPREME COURT.

October Term, 1879.

ACTION AGAINST CARRIER BY HUSBAND AND WIFE A BAR TO ACTION BY HUSBAND ALONE.-A judgment in an action of assumpsit, brought by a husband and wife, on a contract by a carrier of passengers to carry the wife safely, for injuries to the wife while being carried, is a bar to another action of assumpsit on the same contract, by the husband alone, to recover for the same injuries. A different rule prevails when the action is in tort against the carrier for a breach of his public duty, except perhaps in States like New Jersey, where by statute the husband may, in such an action, add claims in his own right to those of his wife. Rev. Laws N. J. 851, sec. 22.-Pollard v. New Jersey etc. R. Co. In error to the Circuit Court of the United States for the District of New Jersey. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.

APPEAL-FEDERAL QUESTION-COURT MAY EXAMINE OPINION OF STATE COURTS TO DETERMINE AS TO.-This court may look into the opinions of the State court from which an appeal is taken, for the purpose of determining whether a Federal question was raised and decided in a case coming up from that court. Armstrong v. Treas. Athens Co. 16 Pet. 285; Cousin v. Blanc, 19 How. 207. To give this court jurisdiction in a writ of error to a State court, a Federal question must not only exist in the record, but it must have been decided against the party who sues out the writ. Murdock v. Memphis, 20 Wall. 626. "Only such questions as either have been or ought to have been passed upon by that court in the regular course of its proceedings can be considered by this court upon error." Fashnacht v. Frank, 23 Wall. 416. In this case the only Federal question there was in the record was not presented to the State court, "either in brief or oral argument." The State court say they presume the question was abandoned, and as one of their reasons for that presumption they say "it is manifest that the circuit court could not have taken jurisdiction." We think this is not such a decision of the question as will give us jurisdiction.- Weatherby v. Bowie. Appeal from the Supreme Court of Louisiana. Opinion by Mr. Chief Justice WAITE. Appeal dismissed. 21 Alb. L. J. 74.

EVIDENCE-EXPLANATION OF WRITTEN CONTRACT BY PAROL EVIDENCE-OFFERS OF COMPROMISE.1. While the rule is that the obligation of a written contract can not be abridged or modified by parol evidence, it is equally well settled that for the purpose of applying the terms to the subject-matter and removing or explaining any uncertainty or ambiguity which arises from such application, parol testimony is legiti