VARIANCE. USURY. Where a contract or obligation is given for two or more separate and independent things or objects, having no connection with each other, and one of these objects is the security of a usurious debt, although the contract or obligation is altogether void for that reason, and no action could be maintained thereon, nevertheless, if the party comes into a court of equity to ask that it be surrendered, all that the statutes of usury have done affecting the complainant's right to relief, is to forbid that any payment on account of such debt shall be made a condition of relief. As to other conditions, the statute is silent, and the court is left to administer relief upon those principles which govern the subject generally. When, therefore, the plaintiff asks that a mortgage be canceled as a cloud upon the title to his lands, and that a court of equity shall so direct, in virtue of its power and its disposition to enforce his equitable rights, the court may not require that he pay a usurious debt, or any part thereof, or any interest thereon but it may require the performance of any other duty which is just to the adverse party, unembarrassed by the statutes in question. In equity the mortgagor in such case stands, in reference to debts not usurious secured by the mortgage, in the same attitude as a complainant seeking to redeem. He must pay what in law and in equity he oweз. Ct. of Appeals, 1867, Williams v. Fitzhugh, 37 N. Y., 444. VARIANCE. 1. In an action against carriers, the plaintiff alleged in his complaint that before the arrival of the goods the carriers were directed to change the destination and deliver them at a distant place, which they neglected to do, and the goods were lost. Upon the trial this was not proved, but it was proved that shortly before the arrival of a part of them at the place of original destination, the consignee demanded them from the agents of the defendants, who refused to deliver them.-Held, that the cause of action was unproved in its entire scope and meaning, and a judgment for the plaintiff could not be sustained.* N. Y. Superior Ct., 1866, Rosebrooks v. Dinsmore, 4 Rob., 672. 2. Under a complaint alleging that the defendants agreed to deliver property to plaintiffs in consideration of plaintiff's transferring and releasing a claim they held against a third person, and averring a part performance, and suing for a breach as to the residue,—Held, that a variance, by proving only the sale of the debt, and not its release, nor the delivery of the demand to the defendants, was not material. N. Y. Superior Ct., 1867, Meriden Britannia Co. v. Zingsen, 4 Rob., 312. *This decision has been reversed in the Court of Appeals. The report of the reversal will appear in our next volume. 3. Variance between the amount of profits to which the plaintiff was entitled, as alleged in the complaint in an action for his share of the profits of a joint adventure, and the amount shown by the proof,-Held, not material. N. Y. Superior Ct., 1867, Strong v. Place, 4 Rob., 385. 4. Under an answer which alleges as a defense a fraudulent sale of a note, with a representation that it is good, the defense is not established where no fraud is proved, and the representation is found to be a warranty that the note was the "genuine" note of O., it being also found that the note was made by O., and the defect therein arises from his infancy. Ct. of Appeals, 1868, Baldwin v. Van Deusen, 37 N. Y., 487. 5. In an indictment against a supervisor for corruptly voting a demand to be a county charge, although the time and place must be stated with certainty, they are not essential to be proved as stated, nor is the amount of the account allowed material. Supreme Ct., 1866, People v. Stocking, 50 Barb., 573. WAIVER. 1. In an action for the recovery of specific personal property, the act of the plaintiffs in taking proceedings for the claim and delivery, and obtaining thereby possession of a portion of the goods, does not amount to a waiver of the right to issue process to arrest the defendants. The delivery of the property under the proceedings of claim and delivery, is not decisive of the plaintiffs' right; and if the plaintiffs succeed, they cannot have a right to recover a larger amount than the defendants are really bound to pay. Supreme Ct., 1867, Tracy v. Veeder, 35 How. Pr., 209. 2. Where the defendant had the whole of the day in which to deliver a satisfaction-piece,-Held, that the plaintiff's refusal to wait during the day for him to send for such satisfaction-piece, amounted to a waiver of any tender of it. Supreme Ct., 1867, Karker v. Haverly, 50 Barb., 79. 3. That a general appearance upon an appeal, and noticing it for argument, is a waiver of the right to have the appeal dismissed, as being too late. Supreme Ct., 1866, Pearson v. Lovejoy, 35 How. Pr., 193. 4. Defendant having notice of a complaint against his business in the city as a nuisance dangerous to public health, declined to appear before the Board of Health to litigate the question, but insisted on their want of power over the subject.-Held, that he could not complain, in a subsequent action,, that their judgment upon the facts was held conclusive upon him. Ct. of Appeals, 1868, Metropolitan Board of Health v. Heister, 37 N. Y., 661. S. P., N. Y. Superior Ct., 1867, Reynolds v. Schultz, 4 Rob., 282. CERTIORARI, 1; DOWER, 2. WARRANT. A criminal warrant for arrest for obtaining property by false pretenses, under the statute, which states the offense thus:-that the prisoner designedly WITNESS. and by false pretenses, did obtain from him, C. D., one sulky of the value of thirty dollars, the property of A. B., with intent to cheat and defraud him, the said C. D.,-states the offense sufficiently; and is a protection to the magistrate and officer who issue and execute it. These proceedings being by a magistrate exercising a general jurisdiction over the subjectmatter, are to be regarded with favor, and when attacked collaterally, great latitude of construction is to be indulged in support of the jurisdiction. [Reviewing authorities.] Supreme Ct., 1867, Pratt v. Bogardus, 49 Barb., 89. WILLS. 1. An habitual drunkard, while in the charge of a committee, not necessarily incompetent to make a will. [Reviewing many authorities.] Supreme Ct., 1868, Lewis v. Jones, 50 Barb., 645. 2. The provisions of the Laws of 1860, 607,-that a testator leaving husband, wife, child, or parent, shall not devise to benevolent, &c., societies more than one-half his estate, &c.,-is peremptory, and may be insisted on by any person who would derive a benefit therefrom, although not one of the relatives designated in the statute. And the one-half is to be computed with reference to the estate at the time of the testator's death.-FULLERTON, J. Ct. of Appeals, 1867, Harris v. American Bible Society, Ante, 421. 3. What amounts to undue influence which will avoid a will. Seguine v. Seguine, 35 How. Pr., 336. 4. Probate of a will cannot be granted if there is no proof that the declaration publishing the will was made to both witnesses, nor any circumstance from which it can be inferred. Supreme Ct., 1867, Abbey v. Christy, 49 Barb., 276. 5. A legacy to a subscribing witness to a will is not void, under 2 Rev. Stat., 65, § 50, where the will can be proved without the testimony of the witness; as, where such witness is a non-resident of the State, and the testimony of the other subscribing witness can be obtained. So held, notwithstanding the legatee witness was examined (though unnecessarily), to prove the execution of the will. Ct. of Appeals, 1867, Cornwell v. Wooley, Ante, 40, WITNESS. 1. In an action for criminal conversation by the defendant with the plaintiff's wife, the wife cannot be a witness against her husband. At common law the husband and wife could not be witnesses for or against each other, and this rule of the common law is not changed by the provisions of the Code which abrogate the disqualification of witnesses by reason of their being parties. [5 Seld., 153; 15 How., 165; 30 Barb., 506; 26 Barb., 612; 38 Barb., 419; 46 Barb., 291; 47 Barb., 419.] Supreme Ct., 1868, Hicks v. Bradner, 35 How. Pr., 118. WITNESS. 2. In cases where husband and wife are admissible as witnesses against the other, they are not restricted to proving facts which could not be proved by any other witness. Supreme Ct., 1867, People v. Northrup, 50 Barb., 147. 3. The testimony of parties who appear as witnesses on the trial of a cause must be weighed by the same rules, substantially, which apply to the testimony of other witnesses. There are no exceptional rules which apply to such a case. If there can be any difference, it is only that the testimony of parties in their own favor should be more carefully scrutinized, and cautiously received by juries, than that of other witnesses. But this applies to both parties, and in all cases where they are witnesses, and contradict each other, the jury necessarily decide between them. Supreme Ct., 1868, Burnett v. Harris, 50 Barb., 379. 4. A provision of a statute prohibiting a party to an action from testifying as a witness to any transaction had personally by him with a person since deceased, does not exclude such party from testifying to the particulars of a transaction which took place between the deceased and a third person, in the presence of the witness. Ct. of Appeals, 1867, Lobdell v. Lobdell, Ante, 56. 5. Although a party is not permitted to assert or present evidence showing one state of facts to be true, and afterwards to assert or prove that his prior evidence is untrue, or not to be relied on, yet, where a witness has given evidence against the side for the support of which he has been called, and the court can perceive good grounds for apprehending that the witness has testified under a mistake of the facts, or intentionally falsely, and there is no bad faith on the part of the party producing the witness, he is allowed to give evidence explaining, or even contradicting, his own witness. Supreme Ct., 1867, People v. Skeehan, 49 Barb., 217. 6. The rule that the judge may, in his discretion, admit or exclude disparaging questions not relevant to the issue, on the cross-examination of a witness, put to impair his general credit, does not allow cross-examining a witness as to whether specific disparaging declarations have been made against him by third persons. Such declarations, though made directly to the witness, are merely hearsay evidence. Supreme Ct., 1867, Hannah v. McKellip, 49 Barb., 342. 7. In the case of a witness who has given an opinion as to value, it is peculiarly proper, upon cross-examination, to test his means of knowledge, to scrutinize the grounds of his judgment, and to elicit such specific facts as may aid in applying and weighing his testimony. Ct. of Appeals, 1867, Wells v. Kelsey, Ante, 234. 8. Where the veracity of a witness is attacked, and he is sought to be impeached only by proof of contradictory statements made by him on other occasions, in respect to the same matter, or by proof of particular facts stated by such witness against himself on his examination, evidence of |