good conduct of two are essentially different engagements, both in ordinary understanding and legal effect." See 6 Ad. & E. 523. In that case the sureties on precisely such a bond in legal effect, and on the same plea as in this case, were released. See also Bellows v. Ebsworth, 3 Camp. 52; Parham Sew. Mach. Co. v. Brock, 113 Mass. 194. Insurance Co. v. Scott. Opinion by Harris, C. J. (See 17 Alb. L. J. 177, 295, 340; 15 id. 124; 4 id. 158.--ED.)

[Decided Jan. 12, 1884.]

DEED-CONSTRUCTION-JOINT TENANTS.-Where a father conveys lands to his daughter and her children forever she does not take an estate for life, with remainder to the children, but she, with the children, holds the land as joint tenants, and it is immaterial for this purpose that the names of the children were not inserted in the deed. In Davis v. Hardin, 80 Ky. 672, this court said: "A father making provision for his child, and that child's children, may well be supposed to have intended them to take jointly. They are all of his blood, and the natural objects of his bounty. If others were named in such a grant than the children there would then be no room for construction; and that the word children is used affords no reason for inferring an intention on the part of the grantor to make a different disposition of the estate than the plain language of the instrument indicates, and then to reverse the rule when applied to strangers, for the reason that such a conveyance is susceptible of but one construction." See Powell v. Powell, 5 Bush, 619. Caldwell. Opinion by Pryor, J. [Decided Jan. 22, 1884.]

Bullock v.

STATE-ACTION BY, DEFENDANT MAY SET-OFF-NO JUDGMENT AGAINSTSTATE IN ABSENCE OF LEGISLATION -EXEMPTION FROM TAXATION-WHEN GRANTEE ENTI

TLED TO.-(1) When the State undertakes to litigate with the citizen the latter may, by way of set-off or counter-claim, make such defense as will defeat the recovery, but is not entitled to a judgment over against the State in the absence of some legislative enactment authorizing the recovery. (2) Where the charter of a railroad company provides that it shall be exempt from taxation, and that lessees or purchasers shall be vested with all the rights, etc., of the corporation, held, that ordinarily the sale of the property and franchises of a railroad corporation under a decree passes the rights and privileges usually pertaining to such corporations or necessary to their existence, but where there is an immunity from taxation inserted in the grant, it has been held to be a mere personal privilege pertaining alone to the original company, and is not transferable. Such an immunity, as said by Mr. Justice Field in the case of Morgan v. Louisiana, 3 Otto, 217, "is personal, and incapable of transfer without express statutory directions." See also the case of Evansville, Henderson & Nashville R. Co. v. Commonwealth, 9 Bush, 438, in which the same doctrine is recognized. We find in this case not only legislative authority authorizing the transfer, but as an inducement to the purchasers to make the bid under which they claim, it is expressly provided that this immunity from taxation shall follow the road in the hands of those who buy it. Commonwealth v. Owensboro. Opinion by Pryor, J. (As to first point see 1 Perry on Trusts [2d ed.], § 41; 89 N. Y. 36; 26 Eng. R. 265; 27 Alb. L. J. 10.--ED.) [Decided Jan. 24, 1884.]

WATER-COURSE-RIGHT OF DIVERSION BY RAILROAD. -In an action brought for the alleged wrongful and unlawful obstruction and diversion, by reason of a stone dam, of water that hitherto flowed to and supplied the power for the operation of plaintiff's mill, whereby, as he states, he has been injured, and to a great

extent deprived of the use and enjoyment of said mill, held, that though a riparian owner may use the water while it runs over his land, as an incident to the laud, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant, or an uninterrupted enjoyment of twenty years (fifteen under our statute), which is evidence of it. This is the clear and settled general doctrine on the subject. All the difficulty that arises consists in its application. 2 Kent Com. 439. "The primary use of water is for natural and domestic purposes, and each proprietor of the land through which it flows may use as much of it as is necessary for those purposes, even if it be entirely consumed in the use; but he is limited as regards other purposes to a reasonable and proportionate use, which must not be such as to exclude others from a benefit to which they are equally entitled with himself." Wadsworth v. Tillotson, 15 Conn. 366; Evans v. Merriwether, 3 Scam. 492; Arnold v. Foot, 12 Wend. 330; Davis v. Field, 12 Ver. 118; Mayor of Philadelphia v. Commissioners of Spring Garden, 7 Barr. 348; Westou v. Alden, 8 Mass. 136; Colburn v. Richards, 13 id. 420; Cook v. Hull, 3 Pick. 269; Anthony v. Lapham, 5 id. 175; Evans v. Merriwether, supra. (2) The owner of a grist mill on a water-course has a vested right which cannot be taken away without just compensation, but this does not impair the right of any riparian owners along the stream to use the water. In this case the charter of the railroad company, authorizing them to construct and maintain their road, did not include the right to build dams or otherwise obstruct the flow of the water. Anderson v. Cincinnati So. R. Opinion by Lewis, J. [Decided Feb. 19, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

RECORDING ACT-INDEX PART OF RECORD-OMISSION MAY BE REMEDIED GOOD FROM WHEN EJECTMENT-GRANTEE OF TAX DEED-STATUTE LIMI

TATIONS. (1) The object of the registry laws, viz., to give notice to subsequent purchasers, can only be secured by making the correct entries in the index required to be kept by statute. The instrument is deemed recorded when thus indexed. In the absence of this material entry, due notice cannot be said to be given, even though the instrument be copied at length in the book kept for that purpose. That the entries in the general index are the material things in determining whether a deed has been so recorded as to be notice to subsequent purchasers, has been adjudicated by this court. In Shove v. Larsen, 22 Wis. 142, the present chief justice, in the opinion of the court, after commenting upon the decisions of the courts of New York and other States, under laws differing from the law of this State, says: "But we think the object of our statute in requiring the register to keep an index and to make certain entries therein was not only to furnish a ready and convenient means of tracing title, but was also for the purpose of effecting constructive notice of the existence of any conveyance properly entered in such index. This it appears to us, was the object and interest of those sections of the statute above cited." The sections cited by the chief justice in that case are the ones above cited in this. In that case this court held that a mortgage which had been properly entered in the index was properly recorded, although where it was spread upon the record there

was a mistake made in the description of the lands mortgaged, the description in the index being the correct description. In Hay v. Hill, 24 Wis., the question was between a mortgagee and a subsequent purchaser without notice in fact. That it is necessary to make the proper entries in the general index, as required by section 142, in order to make a record of a deed under the law, is again asserted in Oconto Co. v. Jerrard, 46 Wis. 319. See also Insurance Co. v. Scales, 27 id. 640. The cases of Ely v. Wilcox, 20 id. 528; Fallass v. Pierce, 30 id. 444; Pringle v. Dunn, 37 id. 449; Girardin v. Lampe, 16 N. W. Rep. 614; Wood v. Meyer,36 Wis. 308; Gilbert v. Jess, 31 id. 110, in no way conflict with the rule established in the cases above cited. The point of these cases is that when the record of the instrument recorded in extenso does not show that it was so executed and acknowledged as to entitle it to record, the entries in the general index do not cure such defect, for the reason that as to these matters the statute does not require any entry to be made in the general index. (2) An omission to make the proper entries in the general index, at the time the deed is spread upon the record, may be remedied after such recording by making the proper entries, and when so made the record will be good from that date, and the deed need not be again recorded at length. (3) The same notice is required to set the statute of limitations running as to be valid against subsequent purchasers. The original owner of lands cannot maintain an action of ejectment against the grantee in a tax deed until after he takes possession or records his tax deed. Section 6, ch. 334, Laws 1878, does not change the law and set the statute of limitations running in favor of unrecorded deeds issued before the passage of that act, or in favor of the holder of a tax deed of unoccupied lands, where such holder does not have actual possession during the statutory nine months, for the reason that the object of this special legislation was in aid of the tax claimant and not hostile to him. Lombard v. Culbertsen. Opinion by Taylor, J. [Decided Jan. 29, 1884.]

DAMAGES

EVIDENCE-RES GESTAE-ADMISSION PROFITS-BURDEN OF PROOF-PART PAYMENT IN PROPERTY-VALUEOF, CAN NOT BE SHOWN.-The contract was that the plaintiffs, as partners, should saw at their mills at the city of New London, during the sawing season of 1881, for the defendants, as partners, 1,000,000 feet of basswod and elm logs, and 50,000 feet of oak logs, to be delivered at the plaintiffs' mill for that purpose by the defendants, for and in consideration of $2.75 per thousand feet for the basswood and elm logs and of $3.75 per thousand feet for the oak logs, to be paid, when the sawing was done, in cash, except the sum of $300, which was to be paid by the delivery of 100,000 feet of hemlock logs at the rate of $3 per thousand feet. Defendant failed to perform. (1) Defendant offered to show that at or about the time when said contract was pretended to have been made, the defendant, Hoxie, had instructed or advised his copartner, Meller, not to enter into any such contract unless in writing. Held to be no part of the res gestæ, and could have no bearing on the question as to whether a contract had been made or not; it did not tend to prove the issue, or constitute a link in the chain of proof. It was merely an offer to show that the one party was so situated that it was improbable that he should have so contracted. (2) The, instruction that "admissions are weak testimony" is awkwardly expressed, but was intended and understood to mean that the testimony by which admissions are proved is a weak kind of testimony, and should be received with the greatest caution. The rule of damages in such a case has been so recently laid down by this court, in Nilson v. Morse, 52 Wis. 255; S. C., 9 N. W.

Rep. 11, that it is unnecessary to look further into the authorities on that question. Mr. Justice Taylor says, in the opinion in that case, that "the rule in case of a breach of contract for doing specific work for a specified price is the profit the person would have realized had he been permitted to perform the work." This profit, of course, is ascer ained by the difference between the contract price and the cost of doing the work. There can be no other rule of ascertaining it. It was affirmative with the defendants to mitigate or lessen the damages which approximately and naturally followed the breach of their contract. 1 Greenlf. Ev., $74; Knapp v. Runals, 37 Wis. 135; Dickson v. Cole, 34 id. 621; Medbery v. Sweet, 3 Chand. 210. The defendants did not offer any evidence to this effect or ask for any instructions to the jury upon the subject. (3) Where a part payment is to be made in a certain amount of logs, at a fixed price, neither party may show that that was not the value of the logs. The rule in such a case is properly stated in Ganson v. Madigan, 13 Wis. 67, a case where the contract was to pay for property to be delivered at a fixed price, and is stated also in the following cases: Harrington v. Wells, 12 Vt. 505; White v. Tompkins, 52 Penn. St. 363; Perry v. Smith, 22 Vt. 30; Pinney v. Gleason, 5 Wond. 393; Trowbridge v. Holcomb, 4 Ohio St. 38; Grieve v. Anniu, 1 Halst. 463; Smith v. Dunlap, 12 Ill. 184; Fleming v. Potter, 7 Watts, 381. The contract was in evidence, and the contract price for doing the work, both in money and in the hemlock logs, is shown thereby. Nash v. Hoxie. Opinion by Orton, J. [Decided Jan. 29, 1884.]

WATER-COURSE-USE LIMITED BY LEASE-LEGAL REMEDY NO BAR TO EQUITABLE INTERFERENCE.—(1) The rule is settled in this State, that when a complaint attempts, but fails to state a cause of action in equity, a general demurrer thereto will be sustained. Deuner . Chicago, 57 Wis. 218; 15 N. W. Rep. 158, and cases cited. (2) The plaintiffs have subject to defendants leases a usufructuary interest in all the undisposed of water appurtenant to their water-power. The defendant's right to draw and use however is given by and necessarily defined and limited in the leases. Whatever has been or may be drawn in excess of the amount thus authorized, defined, and limited must be regarded as wrongfully drawn aud used. Being of great value, and wrongfully used, as alleged, such use must be deemed injurious to the owners. This is virtually conceded. It is also conceded that the plaintiffs have a remedy for such injury. It is claimed however that their remedy at law is adequate, and hence that they are in no position to successfully invoke the aid of equity. On the contrary, it is urged by the plaintiffs that they have no adequate remedy at law, and hence are entitled to the aid of equity. The mere existence of a legal remedy will not bar equitable interference where such interference would be more adequate, comprehensive, and effectual. Bunis v. Upham, 13 Pick. 170; Boston, etc., Co. v. B. W. R. Co., 16 id. 521; Ballon v. Hopkinton, 4 Gray, 328. Of course, such preventative remedy is not given merely by reason of past injury, but to prevent its continuance. Cobb v. Smith, 16 Wis. 692. Where the continued use or threatened danger is such as to cause reasonable fear of irreparable injury, it is not essential that there should be actual damage, or even a completed violation of the plaintiff's rights, in order to entitle him to the protection of equity. Webb v. Portland Manfg. Co., 33 Sumn. 189; Gould Waters, §§ 513 517, and cases there cited. An injury is irreparable, and will be enjoined if of such a nature that it cannot be adequately compensated in damages, or cannot be measured by any certain pecuniary standard. Wilson v. Mineral Point, 39 Wis. 160. Where the injury is continuous,

and under a claim of right, restraint in equity seems to be essential in order to prevent vexatious litigation, and a multiplicity of suits. Garwood v. Ry., 83 N. Y. 404; Tipping v. Eckersley, 2 Kay & J. 264; Clark v. Stewart, 56 Wis 154; S. C., 14 N. W. Rep. 54. So it has been held that where parties have regulated their rights in water by contract or grant, the meaning and breach of which is clear, it is not a question of damage, but the mere breach affords sufficient ground for equitable intervention. Tipping v. Eckersley, supra; Dickenson v. Grand Junction Can. Co, 15 Beav. 260; Olmstead v. Loomis, 9 N. Y. 423. So it has been held that where there is an admitted common right among several owners of the same water-power, equity will interpose to regulate the common use, to determine the extent of their respective rights, and the proper mode of exercising and enjoying them, as tending to prevent litigation, and as affording a more complete and perfect remedy than could be obtained at law, and as furnishing, in fact, the only adequate means of ascertaining and determining the respective rights of the parties. Burnham v. Kemptom, 44 N. H. 100; Caulet v. Cook, id. 512; Hanna v. Clarke, 31 Grat. 36; Adams v. Manning, 48 Conn. 477; Sanborn v. Braley, 47 Vt. 170; Markham v. Stowe, 66 N. Y. 574; Comstock v. Johnson, 46 id. 615; Corning v. Troy I. & N. Fact., 40 id. 191; Erie Canal Co. v. Walker, 29 Penn. St. 170; Lehigh Valley R. Co. v. Society, 30 N. J. Eq. 145; City of Emporia v. Soden, 25 Kan. 588. In Lyon v. McLaughlin, 32 Vt. 425, both parties had rights to the privilege of water under their respective deeds, and the court aptly stated the rule thus: "It would seem to be well settled, as shown by the text-books and the cases, that when the evasion of a right in this kind of property is threatened and intended, which is necessarily to be continuing and operating prospectively and indefinitely, and the extent of the injurious consequences is contingent and doubtful of estimation, the writ of injunction is not only permissible, but is the most appropriate means of remedy. It affords, in fact, the only adequate and true remedy. For the very doubtfulness as to the extent of the prospective injury, and the impossibility of ascertaining the measure of just reparation, render such injury irreparable, in the sense of the law relating to this subject." Lawson v. Menasha. Opinion by Cassoday, J. [Decided Jan. 29, 1884.]

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

MORTGAGE-WHEN PAYMENT OPERATES AS ASSIGNMENT.-Payment of a mortgage debt by one having an interest to protect will operate as an assignment of the mortgage whenever justice requires it. Stantons v. Thompson, 49 N. H. 272; Moore v. Beasom, 44 id. 215; Rigney v. Lovejoy, 13 id. 247; Robinson v. Leavitt, 7 id. 73, 100. Bacon v. Goodnow. Opinion by Smith, J.

REMOVAL OF CAUSE-PETITION WHEN TO BE FILED. -A petition for the removal of a cause to the Federal court filed at the fifth term, the pleadings being complete at the second term, is not filed at the term when the cause can first be tried. The term at which a cause can first be tried is the term at which the cause is first triable on its merits. Huddy v. Havens, 3 W. N. C. 432; Am. Law Reg., May, 1879, p. 312. It is the first term at which the case is at issue for trial and might be ordered to be tried. New York Warehouse & Security Co. v. Loomis, 122 Mass. 431. It is the term when the cause is ready for trial, although the court and parties may not be ready to try it. Gurnee v.

To appear in 59 New Hampshire Reports.

City of Brunswick, 1 Hughes, 270; Forrest Home v. Keeler, 9 Rep. 432. The fact that there is other business entitled to precedence on the docket does not obviate the necessity of filing the petition for removal at the first term when the case could otherwise be tried. Preston v. Ins. Co., 58 N. H. 76; Murray v. Holden, 10 Rep. 162. Nor does the time when a cause may first be tried depend upon the diligence of counsel in completing the pleadings. Fulton v. Golden, 8 Rep. 517. The object of the statute of 1875 was to abridge the right of removal by fixing a definite time within which it might be exercised. Stebbins v. Lancashire Ins. Co. Opinion by Smith, J.

FORMER ADJUDICATION-DECREE IN EQUITY CONCLUSIVE AS TO ALL MATTERS PARTIES BOUND TO LITIGATE-NEGLECT TO PRESENT CLAIM-SUPPLEMENTAL BILL.-A final decree in a bill in equity is conclusive upon all the parties in respect to all matters of claim and defense determined by it, and as to all incidental matters which the parties were bound to litigate and bring to decision. Neglect to present a claim, which might have been litigated in a bill in equity, until after a final decree, ou a motion for a rehearing, is a waiver of the claim, and after such decree leave will not ordinarily be given to file a supplemental bill to enforce it. Freem. Judg., § 249; Story Eq. Pl., §§ 790, 791; Story Eq. Juris., § 547; Clemens v. Clemens, 37 N. Y. 59, 74; Malloney v. Horan, 49 id. 111, 116; Cromwell v. County of Sac, 94 U. S. 351; Case v. Beauregard, 101 id. 688; King v. Chase, 15 N. H. 9, 15. Ashuelot Railroad Co. v. Cheshire Railroad Co. Opinion by Clark, J.

PRIVATE WAY-OBSTRUCTION DEVIATION FROM NECESSITY-NEED NOT REMOVE NOR SUE FOR DAM

AGES.-An obstruction of a private way of prescription, by the land-owner, making the way impassable, may create a reasonable necessity that the owner of the way should deviate from it, and go over another part of the land. The doctrines of reasonable necessity, reasonable care, and reasonable use prevail in this State in a liberal form, on a broad basis of general principle. Brown v. Cram, 1 N. H. 169, 172; State v. Elliot, 11 id. 540; Graves v. Shattuck, 35 id. 257; A. M. Company v. Goodale, 46 id. 53; Closson v. Morrison, 47 id. 482; Sterling v. Warden, 51 id. 217; 52 id. 197; Aldrich v. Wright, 53 id. 398; Brown v. Collins, id. 442; Hoit v. Stratton Mills, 54 id. 109, 116; Jones v. Towne, 58 id. 462, 465; Garland v. Towne, 55 id. 55; Gilman v. Laconia, id. 130; Rowe v. Portsmouth, 56 id. 291; Bassett v. S. M. Company, 43 id. 569; Swett v. Cutts, 50 id. 439; Hayes v. Waldron, 43 id. 580; Varney v. Manchester, 58 id. 430. The rights of necessity are a part of the common law. The necessity is generally a reasonable one, and determined by the application of reason to the circumstances of the case, and not prescribed as an arbitrary, verbal formula. Daniels v. Brown, 34 N. H. 454. A ground on which, in many cases, the law allows a remedy without legal process or judicial procedure, is the inadequacy of such process and procedure. The law adopts the natural right of self-defense, because it considers the future process of law an inadequate remedy for present injuries accompanied with force. It adopts the natural right of recapturing property, real and personal, by the mere act of the party injured, because legal process may be an inadequate remedy. It adopts the natural right of abating nuisances by the mere act of the party injured, because he cannot reasonably be required to wait for the slow progress of the ordinary forms of justice. 3 Bl. Com. 3-6; Cooley Torts, 45-58. The owner of the right of way could lawfully go round the nuisance and out of the way, doing no unreasonable damage, because such deviation, like an abatement of the nuisance, was a remedy of necessity. If he removes the

obstruction and makes the way passable, the necessity of going out of the way will cease (State v. Northumberland, 44 N. H. 628, 631, 632); but there is no reasonable necessity for leaving the owner of the right of way to the inadequate remedies of his own removal of the obstruction, and a suit for damages. Haley v. Colcord. Opinion by Doe, C. J.

TRESPASS ACTION BY MORTGAGEE - ACTS DONE WHEN OUT OF POSSESSION-LICENSE BY MORTGAGOR.

A mortgagee of land, who has entered and taken actual possession under his mortgage, may maintain trespass for an injury done to the freehold while the mortgagor was in possession; and it is no defense that the acts causing such injury to the freehold were done by license from the mortgagor, given subsequent to the execution of the mortgage. Jones Mort., § 687; Pettengill v. Evans, 5 N. H. 54; Smith v. Moore, 11 id. 55; Sanders v. Reed, 12 id. 558. Bellows v. Railroad. Opinion by Clark, J. [Decided Dec. 1879.]

DAMAGES-MITIGATION- -TENDER OF PROPERTY.In an action for damages for withholding property from, or not conveying property to the plaintiff, a tender of the property or part of it, or a conveyance of it or part of it, to the plaintiff, may be allowed at the trial in mitigation of damages, when such a course is reasonable. Towle v. Lawrence. Opinion by Doe, C. J. (See Moak's Underhill on Torts, 95-8.-ED.) [Decided June, 1880.]

BOUNDARIES-QUESTION OF FACT.-The location on the ground of boundaries described in deeds is a question of fact. Madden v. Tucker, 46 Me. 367; Abbott v. Abbott, 51 id. 575; Tebbetts v. Estes, 52 id., 566; Williston v. Morse, 10 Metc. 17, 27. Tasker v. Cilley. Opinion by Bingham, J.

[Decided June, 1880.]

MONEY PAID-REFUSAL TO PERFORM CANNOT RECOVER-ESTOPPEL.-Money paid on a contract for the purchase of land cannot be recovered by one who refuses to complete the contract and take a deed, the other party being in no fault. Lane v. Shackford, 5 N. H. 133; Ayer v. Hawkes, 11 id. 148, 152, 153; Ketchum v. Evertson, 13 Johus. 365; Green v. Green, 9 Cow. 46; Rounds v. Baxter, 4 Greenl. 454. Having abandoned the contract and refused to perform, and not being entitled to recover the money which he has paid, he has no interest to protect, and equity will not uphold the mortgage for that purpose. Refusing to perform the contract on his part, and standing by and seeing the property sold without claiming title or interest, he is estopped from setting up or making claim under a mortgage, which, to the extent of his claim at least, was understood by the defendants and himself to have been paid. Thompson v. Sanborn, 11 N. H. 201; Parker v. Brown, 15 id. 184. Bill dismissed. Hill v. Grosser. Opinion by Allen, J. [Decided June, 1880.]

WHEN

ADMINISTRATOR FAILURE ΤΟ INVEST CHARGEABLE WITH INTEREST.-In Lund v. Lund, 41 N. H. 355, 359, it is said: "The true rule to be applied, in charging administrators with interest, is well settled. In all cases where the administrator, without any just reason or excuse, retains the money in his own hands unemployed, when it ought to be paid over, in all cases where he receives interest for money which belongs to the estate, and in all cases where he applies money belonging to the estate to his own use, he ought to be charged with interest," citing Stearns v. Brown, 1 Pick. 530; Wyman v. Hubbard, 13 Mass. 232; Griswold v. Chandler, 5 N. H. 492, 497; Mathes v. Bennett, 21 id. 188, 199; Wendell v. French, 19 id. 205, 213. In the last case it is said: "An administrator is not chargeable with interest except he receive it, or make

profitable use of the money, or unreasonably detain it." In this case, it is claimed that the administratrix should be charged with interest on the $198.61 found in her hands upon the settlement of her first account. But she was not required to pay this sum to the creditors till after a decree of distribution, and she could not settle the estate till after the sale of the real property. Not having unreasonably detained the money, or invested it, or in a conveyance of his title to the plaintiff in mitigation of damages. Bartlett v. Fitz. Opinion by Foster, J.

[Decided June, 1880.]

PAYMENT-TAKING NOTE NOT, UNLESS AGREEDWHEN ACTION NOT PREMATURE-OFFER TO RETURN.

The plaintiffs, by taking two notes, equal in amount to the bill, neither of which was due and payable when this suit was commenced, did not extend the time of payment, and this action was not for that reason, premature. A note is not payment of a pre-existing debt, unless specially agreed to be received as such. Wright v. First Crockery Ware Co., 1 N. H. 281; Jaffrey v. Cornish, 10 id. 505; Johnson v. Cleaves, 15 id. 332; Clark v. Draper, 19 id. 423; Randlet v. Herren, 20 id. 103; Whitney v. Goin, id. 354; Smith v. Smith, 27 id. 244; Ladd v. Wiggin, 35 id. 421, 426. Whether a note was agreed to be received in payment is a question of fact. Wilson v. Hanson, 20 N. H. 375; Foster v. Hill, 36 id. 526. So is the question, whether it was agreed to extend the time of payment for the goods. The mere reception of the notes, assuming them to have been given for the goods, as it was not a payment for them, did not have that effect. The offer to return the notes to be cancelled was seasonably made, and the plaintiff, on filing them with the clerk, is entitled to judgment. Moore v. Fitz. Opinion by Stanley, J. [Decided June, 1880.]

MICHIGAN SUPREME COURT ABSTRACT.

NEGLIGENCE-GETTING OFF REAR OF CAR NOT PER SE DUTY OF RAILROAD COMPANY TO PROVIDE ASSISTANCE -QUESTION FOR JURY.-Plaintiff, a woman sixty years of age, was travelling on defendants' road. The night was dark and cloudy. On arriving at her destination she and her husband who was with her got out at the rear end of the car. There was a crossing there, and she was familiar with the locality. Instead of being over the level road as she expected, the end of the car was a depression at the side of the road, and when her foot left the step she went down so far that her hold of the iron was broken and she fell to the ground. During all this time, no one connected with the train or employed by the defendant was giving her assistance or looking after passengers at the rear end of the car. Held, that under such circumstances it cannot be said that it is negligence per se for a passenger to leave the car at the rear. If there was negligence in this case it must arise from the fact of the darkness, the known fact that the rear of the car was not at the landing, and the uncertainty in respect to the ground where it stood. If the front end of the car had been at the platform, there would have been more reason for insisting that the plaintiff should have gone in that direction, But we think a woman is excusable for not desiring to pass through the smoking car, and she has a right to assume it is not expected of her. We also think that passengers, where not notified to the contrary, may rightfully assume that it is safe to alight from the car wherever it is stopped for passengers to leave it. And if no light is given them to leave the car by, they are not to be charged with fault for leaving in the darkness. If a car in which there were passengers was not standing where it would be safe for

cases.

them to alight without assistance, it was the duty of the company to provide assistance, or give warning, or to move the car to a more suitable place. This was decided in Cockle v. London & S. E. R. Co., L. R., 7 C. P. 321, a case on its facts very similar to this; and the same principle has often been laid down in other Nicholson v. Lancashire, etc., R. Co., 3 Hurl. & C. 534; Foy v. London, etc., R. Co., 18 C. B. (N. S.) 225; Brassell v. N. Y. Cent., etc., R. Co., 84 N. Y. 241; S. C.,3 Am. & Eng. R. Cas. 380; Penn. R.Co. v. White,88 Penn. St. 327; and Balt. & O. R. Co. v. State (Md. Ct. App.), 12 Am. & Eng. R. Cas. 149, are among those so holding. There was therefore evidence to go to the jury on the question of negligence in the defendant. And the peculiarity of the case is such that the same facts which tend to show negligence in the railroad company tend in the same degree to show that the plaintiff was without fault. If she had a right to assume that the landing place was safe, she was not negligent in stepping down as she did. It must be conceded that she did not exhibit a very high degree of caution, but we cannot say that it was not as much as the average passenger would have shown under like circumstances. Cartwright v. Chicago. Opinion by Cooley, C. J.

[Decided Feb. 8, 1884.]

RECENT ENGLISH DECISIONS. WILL-GIFT-INDIVIDUALS OR CLASS-LAPSE.- A testator, by his will, gave his residuary estate to trustees in trust for my son George, my daughters, Lydia, Mary Ann, Alice, and Frances, and such of my child or children, if any, hereafter to be born, as shall attain the age of twenty-one years or marry, in equal shares as tenants in common, but subject as to the share of any daughter whether now living or a child hereafter to be born, to the trusts following." Then followed the trusts of the share of "such daughter." The testator had six children only, those named in the will and one other, all of whom had attained twentyone at the date of the will. Two of the children named in the will died in the testator's life-time without issue. Held, that the gift was a gift to a class and not as individuals, and that the residue was divisible amongst the three children who survived the testator. Re Stanhope's Trusts, 27 Beav. 201, followed. Shires v. Ashworth, Ch. Div. Opinion by Chitty, J. (50 L. T. Rep. [N. S.] 18.)

WILL-ABSOLUTE GIFT-QUALIFICATION OF LAPSEWhere in a will there is an absolute gift, followed by a qualification of the mode of its enjoyment to secure certain objects for the benefit of the legatee, then if the objects fail, the absolute gift remains. But if there is an absolute gift followed by a clause diminishing the estate so given to the first taker, the absolute gift has, in effect, been cut down, and the court can only give effect to it as so diminished. A testator gave property to trustees upon trust out of the rents and income to pay annuities to his wife and daughter H., for their lives, and subject thereto to invest and accumulate the rents and income, and stand possessed of the property and accumulations on trust for the children of the daughter absolutely as tenants in common; "provided always that as to such of the children of H. as may be born in my life-time the share of each such child, instead of being in fee simple, shall go and belong to such child for his or her life only," with remainder absolutely to the children of such child in equal shares and proportions as tenants in common. H. had several children, who were all born in the testator's life-time, and one of whom survived him and attained twenty-one, but died unmarried. Held, that there was a lapse of so much of the property as would have been taken by the children of such child if there

had been any. Gompertz v. Gompertz, 2 Phil. 107, and Lassence v. Tierney, 1 M. & G. 551, followed. Williams v. Gorvin. Ch. Div. Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 22.

WILL-CONSTRUCTION-FORFEITURE OF ESTATE IN CASE OF NON-RESIDENCE-WHAT IS RESIDENCE.-Testator gave his real estate, including specifically his house, to the use of his son for life, provided as a sine qua non that he should, within six calender months after the testator's decease, take actual possession of the house as his residence and place of abode, and should thereafter, during his life, continue to reside there for at least six calendar months (but not necessarily consecutively in every year). After the son's death, or his failing to take possession of, and reside in, the house, the estate was given to his first and other sons in tail male. There were also certain articles given to go as heirlooms with the estate. The testator's son took possession of the house within the time required, but during the year following his doing so he only spent a few days there. He had however kept the house and garden in good order, paid the rates and taxes, and kept a sufficient staff of servants to wait upon himself and his family if they should come there, and rooms were always kept ready for his son, who frequently spent two or three days there, and generally the place was kept up and regarded as one of his actual places of residence. The question was raised whether he had forfeited his interest in the real estate and heirlooms by not residing in the house for six months of the year. Held, that it was not necessary for him to reside personally upon the estate for the whole period, but it was sufficient to satisfy the condition if he kept it up as one of his actual places of residence during the time; this he had done, and his interest under the will was not forfeited. Warner v. Moir, Ch. Div. Opinion by Bacon, V. C. (50 L. T. Rep. [N. S.] 10).

ANNUITY-PROPERTY GIVEN SUBJECT TO-RIGHT TO HAVE SECURED.-The testator gave all his real and personal estate to his son upon trust to pay thereout weekly and every week to the testator's wife during her life the sum of 1l. 10s., and subject thereto, upon trust for his said son absolutely. The testator had been dead four years, and the weekly payment had been regularly made during all that period. The widow now asked that its future payment should be secured by the sale of the property and the investment of the proceeds. The estate consisted substantially of a leasehold public-house, and the business carried ou there, and the total amount of it, if realized, would not have been equal to the amount of the capitalized value of the annuity. Held, that the property was given to the son absolutely, subject only to the payment of the annuity, and so long as he paid that he was entitled to the quiet possession of his property, and the widow was not entitled to have it sold.. Potter v. Potter, High Ct. Justice, Ch. Div. Opinion by Bacon, V. C. (50 L. T. Rep. [N. S.] 8.)

CRIMINAL LAW.

LARCENY-WANT OF CONSENT-CIRCUMSTANTIAL EVI DENCE OF-PLEADING PURCHASE-ERROR IN CHARGE.

-The prisoner was convicted of horse stealing. "On the trial it was proved by the State that the alleged owner, who was an aged lady, in very feeble health, was not able to appear in court and testify in the case. It was further shown that W. C. Turnbo, her son, at the time of the alleged theft, was managing and controlling her business affairs, and that said son had not consented to the taking of the alleged stolen horse by the defendant or any one else. The court instructed the jury that it devolved upon the State to prove satisfactorily and beyond a reasonable doubt that the