credit for necessaries; that the goods supplied by the plaintiffs were, as it is admitted they were, necessaries; and that, as a consequence, an implied authority is established. This contention is founded upon an erroneous view of what is meant by the term presumption," in cases where it has been used with reference to a wife's authority to pledge her husband's credit for necessaries. There is a presumption that she has such authority in the sense that a tradesman supplying her with necessaries upon her husband's credit, and suing him, makes out a prima facie case against him, upon proof of that fact and of the cohabitation. But this is a mere presumption of fact, founded upon the supposition that wives cohabiting with their husbands ordinarily have authority to manage in their own way certain departments of the household expenditure, and to pledge their husband's credit in respect of matters coming within those departments. Such a presumption or prima facie case is rebuttable, and is rebutted when it is proved in the particular case, as here, that the wife has not that authority. If this were not so, the principles of agency upon which, ex hypothesi, the liability of the husband is founded, would be of practically no effect. Feeling this difficulty, the appellants' counsel shift their ground, and contend, that although under the circumstances of this case, the wife may have had no authority in fact or in law to pledge her husband's credit, yet the defendant must be taken to have held out his wife as having authority to pledge his credit to all persons supplying her with necessaries, without notice that she had not authority in fact, and consequently is

band's liability is founded upon some law other than that which governs in general the relations of principal and agent. It is urged that it is hard to throw upon a tradesman the burden of inquiring into the fact of a wife's authority to buy necessaries upon her husband's credit. I assent to the answer that while the tradesman has at least the power to inquire or to forbear from giving credit, it is still harder and is contrary, if not to public policy, yet to general principles of justice, to cast upon the husband the burden of debts which he has no power to control at all except by a public advertisement that his wife is not to be trusted, and in respect to which, even after such advertisement, he may be made liable to a tradesman who is able to swear that he never saw it. It appears to me that the decision of the majority of the judges in the case of Jolly v. Rees has put the law as regards this matter upon a proper footing, and that there is no ground for disturbing the judgment in this case which the defendant has obtained.

Appeal dismissed with costs.

NEW YORK COURT OF APPEALS ABSTRACT.

ACTION-LIABILITY INCURRED THROUGH WRONGFUL ACT OF ANOTHER GIVES RIGHT OF ACTION.

-Defendant, an oil company, represented to S., the master of a vessel, that it had placed on his vessel 110 barrels of oil, and he, supposing the representation to be correct, signed a bill of lading therefor, and delivered it to H., who sold it for value to B. Not being able to deliver the oil, which had never been placed upon his

ing her authority. This contention appears to me to have no better ground of support than the one with which I have just dealt. If a tradesman has had dealings with the wife upon the credit of the husband, and the husband has paid him without demur in respect of such dealings, the tradesman has a right to assume, in the absence of notice to the contrary, that the authority of the wife which the husband has recognized continues. The husband's quiescenco is in such a case tantamount to acquiescence, and forbids his denying an authority which his own conduct has invited the tradesman to assume, just as it would forbid his denying the authority of a servant who had been in the habit of ordering goods for him from the tradesman, and whose authority he had secretly revoked. But what, in the case of a tradesman dealing with his wife for the first time, has the husband done or omitted to do which renders it inequitable for him to deny his wife's authority? For the tradesman, it is said that the mere relationship of husband and wife entitles him to assume, in the absence of notice to the contrary, that the wife has authority to pledge her husband's credit for necessaries. But this is a fallacy. The tradesman must be taken to know the law; he knows (for the present argument proceeds upon that supposition) that the wife has no authority, in fact or in law, to pledge the husband's credit, even for necessaries, unless he gives it her, and that what the husband expressly or impliedly gives he may take away. How then can the tradesman dealing with the wife for the first time, and without any communication with or knowledge on the part of the husband, say that he is induced or invited, either by law or the husband, or by both combined, to deal with the wife upon the faith and in the belief of her being in fact authorized to pledge her husband's credit? If he be so induced or invited, it can only be upon the footing of the law making a husband absolutely liable for necessaries purchased by his wife to any person dealing with her, although for the first time, without notice that her authority is limited; but if the law does so make him liable, there is no need for any estoppel, and we are driven back upon the exploded notion that the hus

S. or his assignee could maintain an action against defendant for the value so paid. The payment by S. to B. was a compulsory payment, caused by the act of the defendant, and the law will imply a promise on its part to repay the money. For the failure of S. to deliver the oil, B. had a remedy by action and could enforce the claim against S. or his ship (Merchants Bk. of Canada v. Union & T. Co., 69 N. Y. 373; McLaughlan's Merch. Ship, 371; Evans v. Marlett, 1 Ld. Raym. 271), and as B. was a purchaser of the oil for value, upon the faith of the bill of lading, S. could not, in defense, show that he had not in fact received the number of barrels in the bill of lading specified. was it necessary that he should withhold payment until suit brought. It was enough that the demand was legal and one which could be enforced. Maydew v. Forrester, 5 Taunt. 615. See, also, Leake on Cont. 77; Moule v. Garrett, L. R.. 7 Exch. 101. Judgment affirmed. Van Santen v. Standard Oil Co., appellant. Opinion by Danforth, J.

-

Nor

APPEAL-DISCRETIONARY ORDER EXONERATION OF BAIL. — Under section 191 of the old Code, bail might be exonerated, among other ways, by the legal discharge of the principal from the obligation to render himself amenable to process within twenty days after the commencement of the action against the bail, or within such further time as might be granted by the court. Held, that while exoneration within twenty days was matter of right, after that time it depended upon favor or the discretion of the court, and the action of the court could not be reviewed by this court. Brady v. Brundage, 59 N. Y. 310; Anonymous, id. 313; Alling v. Fahey, 70 id. 571. Appeal dismissed. Mills v. Hildreth, appellant. Opinion by Danforth, J.

ties on other property and transferred to plaintiff was taken as payment, or as plaintiff claimed, as security. Plaintiff testified in his own behalf that when the transaction occurred plaintiff objected to taking the mortgage; that defendant represented that the mortgage (which was a second one) was ample security; that the farm was worth it; that the farm was subsequently sold upon a foreclosure of the first mortgage and brought only enough to pay such mortgage. Held, that evidence upon the part of defendant, showing what the value of the farm was when the transaction took place, was admissible. This does not conflict with Green v. Disbrow, 50 N. Y. 334, the authority of which is not disturbed. (2) A witness testified that a contract had been abandoned and another verbal contract made. Held, not objectionable on the ground that it was a conclusion of law, or that the facts and circumstances constituting the contract or the abandonment were not stated. It has frequently been held that a witness cognizant of the fact can state whether an agreement was made, without detailing the circumstances showing that it was made. Sweet V. Tuttle, 14 N. Y. 465; Frost v. Benedict, 21 Barb. 247; Ayrault v. Chamberlain, 33 id. 229; Union Sem. v. McDonald, 34 N. Y. 379; Osborn v. Robbins, 36 id. 365. (3) A joint debtor has no authority to bind any other person jointly liable with him, by his statements or admissions, unless he is the agent or in some other way the representative of such person. The mere fact that he is a joint debtor never gives the authority. Van Keuren v. Parmelee, 2 N. Y. 528; Shoemaker v. Benedict, 11 id. 176. Judgment affirmed. Wallis, appellant, v. Randall. Opinion by Earl, J. [Decided June 1, 1880.]

SURETYSHIP-OFFICIAL BOND-TAX COLLECTORHOW FAR SURETY LIABLE.- In an action upon a bond it appeared that the bond set forth that plaintiff having been appainted treasurer of the village of Edgewater, appointed one M. "collector, to collect the taxes to be levied and assessed upon said village," and contained a condition that if M. "shall well and truly collect the tax which may be delivered to him and faithfully discharge his duties as such collector and pay over all moneys which he shall receive for taxes as such collector and render a true and faithful account," etc., the obligation shall be void. By the charter of the village (Laws 1870, ch. 674), the property within the village was made liable to assessment for village, county and State purposes, and all was to be collected by the village treasurer. The village of Edgewater is in two towns, a part being in Middletown and a part in Southfield. Held, that the sureties on the bond would be liable for a breach of the collector's duty in respect to taxes for which the whole property of the village was subject to assessment, namely, village, county, and State taxes; but would not be liable for the taxes collected for the two towns, the tax of each town being leviable on only a part of the property in the village. The liability of a surety is limited to the express terms of the contract, and his obligation should be construed strictly and favorably to the surety so far as is warranted by the terms employed. Ludlow v. Simond, 2 Cai. Cas. 1. Judgment affirmed. Ward, appellant, v. Stahl et al. Opinion by Miller, J. [Decided June 15, 1880.]

WATER-COURSE

RIGHT OF SUPERIOR OWNER TO USE AS OUTLET — ARTIFICIAL CHANGE IN FLOW.

While the right to the use of a water-course upon the lands of another as an outlet for water exists only in respect to the waters of which the water-course is the natural outlet, and does not justify the diversion and turning of the waters of one stream into another (Merritt v. Parker, 1 N. J. 460; Tillotson v. Smith, 32 N. H. 90; Mayor of Baltimore v. Appold, 42 Md. 442), the right of the owner of lands through which a water

course runs to have the same kept open and to discharge therein the surface-water which naturally flows thereto, is not limited to the drainage and discharge of surface water into the stream in the same precise manner as when the land was in a state of nature and unchanged by cultivation or improvements. The owner of lands drained by a water-course may change and control the natural flow of the surface-water therein, and by ditches or otherwise accelerate the flow or increase the volume of water which reaches the stream, and if he does this in the reasonable use of his own premises he exercises only a legal right and incurs no liability to the lower proprietor. Waffle v. New York Cent. R. R. Co., 53 N. Y. 11. The natural capacity of the stream cannot be exceeded however. Accordingly where plaintiffs, who had excavated a quarry, formed thereby a reservoir into which the surface water from the contiguous lands drained in the spring, when they commenced their operations, pumped this water together with that arising from the melting snow and what came from small water-courses cut off by the excavation into a water-course which further down crossed defendant's lands, there being no more water sent down than would have naturally flowed if the excavation had not been made, held, that plaintiffs were exercising their lawful rights, and defendant had no right to obstruct the channel, even though the pumping caused a larger flow than there otherwise would have been, the water-course being sufficient to carry off all the water flowing or pumped into it, and it not appearing that defendant has suffered any injury. Judgment affirmed. McCormick et al. v. Horan, appellant. Opinion by Andrews, J. [Decided June 1, 1880.]

INDIANA SUPREME COURT ABSTRACT. MAY 21, 1880.

ESCHEAT WHAT STEPS NECESSARY FOR STATE TO SECURE TITLE ESTOPPEL. - (1) Where lands are escheated, by the death of an alien, to the State, there seems to be a difference between cases where the alien dies intestate, leaving no one in possession, and where he makes a devise, as to the steps to be taken to secure possession. In the former case there are no known heirs, and no claimant appearing, the State therefore has title at once, and may enter and take possession. In the latter case there are known devisees claiming the land; the State therefore must first establish her title to the land by information found, before she is entitled to possession. See Eldon v. Doe, 6 Blackf. 341; Doe v. Lazenby, 1 Ind. 234; Murray v. Kelly, 27 id. 42; Fuhrer v. State, 55 id. 160; Halstead v. Board of Commissioners, 56 id. 363; Dale v. Frisbie, 59 id. 530; State v. Meyer, 63 id. 33; Fairfax v. Hunter, 7 Cranch, 603; Wilbur v. Tobey, 16 Pick. 177; White v. White, 2 Hetl. 185; O'Hanlin v. Den, Spencer, 31; Dew v. Colgrave, 4 Zabr. 66; Rubeck v. Gardiner, ↑ Watts, 455; Farar v. Dean, 24 Mo. 16; Crane v. Reeder, 21 Mich. 24. (2) When such escheated land has been sold for taxes, after the State has become entitled thereto by reason of the escheat, the State is estopped from setting up its title against one purchasing at such tax sale. Dezell v. Odell, 3 Hill, 215. The courts in some of the States hold that a sovereignty, or Commonwealth, or State, is not bound by an estoppel; but this court does not approve of the doctrine. States exact justice, and they must do justice. Commonwealth v. Andre, 3 Pick. 224, is quite in point. In that case the Legislature, for a valuable consideration, had granted certain lands to an alien, his heirs and assigns; and it was held upon the death of the alien that the lands descended to his heirs, although they were also aliens; and that upon inquest of office the Commonwealth was estopped from setting up the alienage of

- ILLICIT

the grantee, or his heirs, as the ground of an escheat. This is the better doctrine. See, also, Bigelow on Escheat, 246, and the authorities there cited; Nieto v. Carpenter, 7 Cal. 527. In support of the general doctrine of estoppel see the following authorities: Welland, etc., Co. v. Hathaway, 8 Wend. 480; Carver v. Jackson, 4 Peters, 1; Laney v. Laney, 4 Ind. 149; Gatling v. Rodman, 6 id. 289; Conklin v. Smith, 7 id. 107; Barnes v. McKay, id. 301; Morris v. Stewart, 14 id. 334; State v. Stanley, id. 409; Junction R. Co. v. Harpold, 19 id. 347; Burton v. Reeds, 20 id. 87; Berry v. Anderson, 22 id. 36; Fletcher v. Holmes, 25 id. 458; Love v. Wells, id. 503; Joyce v. First Nat. Bank of Madison, 62 id. 188; Hadley v. State, 66 id. 271. Reid et al. v. State of Indiana. Opinion by Biddle, J. EVIDENCE-ON ACTION FOR SEDUCTION INTERCOURSE OF FEMALE. —It is abundantly established that in an action for seduction the woman seduced cannot be asked on cross-examination, for the purpose of showing her bad character, whether she has not had criminal intercourse with other men, nor for the purpose of impeaching her if she deny it. Shattuck v. Myers, 13 Ind. 46; 5 Wait's Act. and Def. 667; 1 Greenl. Ev., § 458; 2 id., § 577; Hoffman v. Kemerer, 44 Penn. 452; Doyle v. Jessup, 29 Ill. 460. In the language of this court in the case of Bell v. Rinker, 29 Ind. 267, supra, "character could not be attacked or sustained by proof of specific acts." But in such an action by a woman seduced, under a statute allowing her to bring it, such questions may be asked for the purpose of showing the paternity of a child brought forth by her and of affecting the damages. Walker v. State, 6 Blackf. 1; Hill v. State, 4 Ind. 112; Townsend v. State, 13 id. 357; Whitman v. State, 34 id. 360. Smith v. Garagan. Opinion by Worden, J.

MICHIGAN SUPREME COURT ABSTRACT. APRIL, 1880.

CONSTITUTIONAL LAW-STATE UNDER POWER TO AMEND CHARTER CANNOT TAKE AWAY PROPERTY RIGHTS FROM CORPORATION.-A State statute providing that no plank road company organized under a general act mentioned, to which the statute was an amendment, should maintain a toll-gate within the corporate limits of a city or village without the consent of the local authorities,for collect toll for any portion of its road within such limits in which a pavement was maintained by the municipality, held, invalid where the effect of its enforcement would be to deprive a company of the right to take toll on two and a half miles of its road, and the fact that the general act contained a provision authorizing the Legislature to amend, repeal, or alter such act, would not affect the result. There is no well-considered case in which it has been held that a Legislature under the 'power to amend a charter might take from the corporation any of its substantial property or property rights. See Albany, etc., R. R. Co. v. Brownell, 24 N. Y. 345. It was there decided that although the Legislature might require railroad companies to suffer highways to cross their tracks, they could not subject the lands which the companies had acquired for other purposes to the same burden, except in connection with provision for compensation. The decision was in accord with that in Commonwealth v. Essex Co., 13 Gray, 239, 253, in which, while the power to alter, amend or repeal the corporate franchises was sustained, it was at the same time declared that "no amendment or alteration of the charter can take away the property or rights which have become vested under a legitimate exercise of the powers granted." The same doctrine is clearly asserted and affirmed in Railroad Co. v. Maine, 96 U. S. 499, and is assumed to be

unquestionable in the several opinions delivered in the Sinking Fund Cases, 99 U. S. 700. But for the provision in the Constitution of the United States which forbids impairing the obligation of contracts, the power to amend and repeal corporate charters would be ample without being expressly reserved. The reservation of the right leaves the State where any sovereignty would be if unrestrained by express constitutional limitations, and with the powers which it would then possess. It might therefore do what it would be admissible for any constitutional government to do when not thus restrained, but it could not do what would be inconsistent with constitutional principles. And it cannot be necessary at this day to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may rightfully have acquired. In the most arbitrary times such an act was recognized as pure tyranny, and it has been forbidden in England ever since Magna Charta, and in this country always. It is immaterial in what way the property was lawfully acquired; whether by labor in the ordinary avocations of life, by gift or descent, or by making profitable use of a franchise granted by the State; it is enough that it has become private property, and it is then protected by the law of the land." Even municipal corporations, though their charters are in no sense contracts, are protected by the Constitution in the property they rightfully acquire for local purposes, and the State cannot despoil them of it. Terrett v. Taylor, 9 Cranch, 43; Pawlet v. Clark, 9 id. 292; State v. Haben, 22 Wis. 660; People v. Common Council, 28 Mich. 228. City of Detroit v. Detroit & Howell Plank Road Co. Opinion by Cooley, J.

HIGHWAY

ALLEY IN CITY NOT.- An alley in a city can in no proper or legal sense be considered as a public highway, or governed by rules relating thereto. While the city may have, and undoubtedly has, certain limited rights therein for municipal purposes, yet the public have no general right of way over or through the same. It is designed more especially for the use and accommodation of the owners of property abutting thereon, and to give the public the same unqualified rights therein that they have in and to the use of the public streets would defeat the very end and object intended. Paul v. Detroit, 32 Mich. 110.

Any obstruction to the right of passage through or to the proper use of any alley, by those entitled thereto, cannot, therefore, be considered as a public wrong. The grievance, if any, is an individual one, and for which there may, for a willful or unnecessary obstruction, be a private remedy. Bagley v. People. Opinion by Marston, C. J.

MARRIED WOMAN-MAY BE ENTITLED TO SERVICES PERFORMED IN HUSBAND'S FAMILY.- Under a statute which had been held to authorize a married woman to carry on business on her own account with the consent of her husband, held, that she might with his consent be entitled to perform for compensation services in his family, such as attending upon his aged, blind and imbecile father, who lived with her husband. No distinction can be drawn between the services of the wife performed in and about the house and those performed elsewhere, as a foundation for a claim to recovery for her own benefit. If the husband can consent to her giving her time and attention to the management of a millinery or dress-making establishment, or to any other regular business, away from her own, and if this makes the business her own, there seems to be no conclusive reason why she may not consent to her making her services in the household available in the accumulation of independent means on her own behalf. He relinquishes her right to her services in the one case no more than in the other, and perhaps in the last case the ordinary course of marital

relations is least disturbed. In Tillman v. Shackleton, 15 Mich. 447, the business for which the wife was preparing was that of keeping boarders; and in Merriweather v. Smith, 44 Ga. 541, she was to give her personal labor in the cultivation of a cotton crop. In the well considered case of Peterson v. Mulford, 36 N. J. 481, the labor in the proceeds of which the wife was protected was picking berries, boarding children, selling milk, butter, eggs, etc. Mason & Dunbar. Opinion by Cooley, J.

VIRGINIA SUPREME COURT OF APPEALS

ABSTRACT. JANUARY TERM, 1880.*

MORTGAGE -OF GOODS TO BE MANUFACTURED WHEN VALID IN EQUITY.-A., being the owner of a cotton factory, enters into a covenant under seal with T., which is duly admitted to record, which, reciting a previous deed of trust by A. to secure advancements made or to be made by T. to A., witnesses that in consideration of the premises and of the advances already made and to be thereafter made by T. for the purchase of cotton or for other expenditures connected with the manufacture of cotton goods at A.'s factory, the said A. covenants to deliver to the said T. each yard of cotton goods manufactured by him at the said factory. And T. covenants that he will, from time to time, advance such sums of money as may be required for the purchase of cotton manufactured in said factory, and that he will advance further sums of money as may be required to pay hands and necessary expenses incurred in running the machinery in said factory, etc. And it was further agreed between the parties that the said A. shall sell no goods manufactured in the said factory, unless upon receipt of a written authority from T. to that effect, specifying the amounts of goods to be sold, the price and terms of sale, and approving the credit of the purchaser; and T. shall receive five per cent for commissions and guaranty on the entire product of said factory, whether sold by T. or A., by the authority of T. as aforesaid. And T. is to have the same security under the said deed of trust as if this covenant had been executed at the same time as the deed. Held, that the covenant by A. is valid in equity to secure to T. the cotton and goods thereafter purchased and made at the said factory, for the repayment to him of all money advanced or paid by him for cotton to be manufactured at said factory and the expenses incurred in running the said machinery, whether said advances were made before the date of said covenant or afterward. That the covenant having been duly recorded, it is notice to all parties claiming under A. That the right of T. to the raw cotton, cotton yarn and cotton cloth on hand is preferable to the right of an execution creditor of A. on an execution issued since the covenant was executed. Holroyd v. Marshal, L. R., 10 H. L. 19; Beall v. White, 94 U. S. 382, 387; Story's Eq. Jur. (9th ed.), § 1040; Dunham v. Railway Co., 1 Wall. 254; United States v. New Orleans Railroad, 12 id. 362; Borst v. Nalle, 28 Gratt. 423. First National Bank of Alexandria v. Turnbull & Co. Opinion by Anderson, J.

NEGLIGENCE - BAILMENT- - QUESTION FOR JURY.A gratuitous bailee is only liable for gross negligence. The question of negligence on the part of an agent, as a general rule, is a question of fact, and not of law. It is only in that class of cases where a party has failed in the performance of a clear legal duty, that when the facts are undisputed, the question of negligence is necessarily one of law. When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negliTo appear in 32 Grattan's Reports.

gence cannot be determined until one or the other of these conclusions has been drawn by the jury. The inference to be drawn from the evidence must be certain and incontrovertible, or they cannot be decided by the court. Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ. Detroit & M. R. Co. v. Van Steinberg, 17 Mich. 99; Railroad Co. v. Stout, 17 Wall. 657; West Chester & P. R. Co. v. McElwee, 67 Peun. St. 311; Barron v. Eldredge, 100 Mass. 455; Doorman v. Jenkins, 2 Ad. & El. 256. The degree of negligence is a question for the jury. How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending upon a great variety of circumstances, which the law cannot exactly define. Storer v. Gowen, 18 Me. 174. 177. The question of gross negligence was left to the jury by Mr. Justice Story in Tracy v. Wood, 3 Mason, 132. Carrington v. Ficklin's Exr. Opinion by Burks,

J.

SURETYSHIP-UNDERTAKING FOR EMPLOYEE OF CORPORATION-CONSTRUCTION OF INSTRUMENT CHANGE

OF EMPLOYMENT.-E. was employed by the S. Express Company as freight clerk at P., and whilst so employed executed a bond, with sureties, by which, after reciting that whereas E. is to be hereafter employed by the S. Express Company in its business of forwarding by different railroads, etc., packages of any and all kinds, and movable property, including money and securities for money, E., in consideration of said employment and the compensation he is to receive from said company for his services, covenants, etc., that he will well and truly perform all the duties required of him in said employment, and truly account for all money, etc., which may come to his possession or control by said employment, etc. And E. and his sureties bound themselves for the faithful performance of the above covenants by E. in the penalty of $2,000. After the execution of this bond, E. was raised to the office of principal agent of the company at P., and whilst acting as such principal agent embezzled money which came into his hands. Held, there being no dispute about the facts, it is for the court to construe the instrument, and the jury are bound to take the construction of the court as correct. The rule, as laid down by Baron Parke in Neilson v. Harford, 8 M. & W. 806, 823, is generally accepted. "The instruction of all written instruments," he says, "belongs to the court alone, whose duty it is to construe all such instruments as soon as the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words of art or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so there would be no certainty in the law," etc. See, also, Brown's Leg. Max. 104, (side p.); 1Chitty on Cont. (11th Am. ed.), 103; Talbot v. R. & D. R. R. Co., 31 Gratt. 685. And surrounding circumstances relied on may be accepted as facts established, in like manner as if found by the jury. It is the province of the court to construe in the light of the facts, but the construction is limited by the rules of law to the language employed in the instrument. "The writing," says Greenleaf, "may be read by the light of surrounding circumstances in order more perfectly to understand the intent and meaning of the parties; but as they have constituted the writing to be the only outward and reliable expression of their meaning, no other words are to be added to it, nor substituted in its stead. The duty of the court in such cases is to ascertain, not what the parties may have

secretly intended, as contradistinguished from what their words expressed; but what is the meaning of the words they have used." 1 Greenl. on Ev., §277; Beaumout v. Field, 18 Eng. Com. L. Rep. 334; Doe v. Templeman, 24 id. 336, 343. In the case at bar, the obligation, by its terms, extends to any employment of E. by the express company, and the sureties are liable to the company for the money embezzled by E. whilst acting as principal agent of the company at P. Collier V. Southern Express Co. Opinion by Burks, J.

SUPERIOR COURT OF BUFFALO.

GENERAL TERM ABSTRACT.

HUSBAND AND WIFE-LIABILITY OF HUSBAND FOR REPAIRS ON WIFE'S HOUSE. - For many purposes a house belonging to the wife, but occupied by the husband as the home and residence of himself and family, may be regarded as in his possession rather than that of the wife. Alexander v. Hard, 64 N. Y. 228. When repairs become necessary upon the premises, and no arrangement on the subject exists between them, it would appear to be as much his duty as that of the wife to bear the expense, since he has the beneficial use of the premises. In ordering the repairs, she may be regarded as acting consistently with either character, that of owner, or as agent of her husband. Where, therefore, the wife directed the person who performed the work to her husband, and the latter promised to pay the bill, and he paid similar bills to other persons, it was left to the jury to find whether the wife acted as his agent in ordering the repairs - whether he intended to adopt and ratify her act as his agent, and make the debt his own; and a verdict for the plaintiff was sustained. In such case, therefore, he promises to pay his own debt, and not merely that of a third person. Ross v. Janes. Opinion by Beckwith, J.

FORECLOSURE-DEFENDANT CANNOT SET UP PARAMOUNT TITLE.—The only proper parties in a foreclosure suit are the mortgagor and mortgagee and those who have acquired rights or interests under them subsequent to the mortgage. The rights of those claiming by title paramount, or in hostility to the title of the mortgagor, cannot be litigated in such an action. Where, therefore, the complaint] avers that a defendant claims an interest in the premises accruing subsequent to the mortgage and inferior thereto, it is not necessary or proper for such defendant to set up a title existing in him which is paramount to the mortgage, since no decree can be made in the action which will affect such title. Banks v. Walker, 3 Barb. Ch. 438; Holcomb v. Holcomb, 2 Barb. 20; Lee v. Parker, 43 id. 611; Brundage v. Dom. & For. Miss. Soc., 60 id. 204; Lewis v. Smith, 9 N. Y. 502; Merchants' Bank v. Thomson, 55 id. 7. Yerkes v. Roots. Opinion by James M. Smith, J.

MUNICIPAL CORPORATION-NEGLIGENCE.- A portion of the plank of a cross-walk was gone, leaving a space about four feet long, fifteen inches wide, and

eight inches deep, and the plaintiff, before reaching this space, accidentally tripped and fell therein, breaking his collar bone. Held, (1) that the defect in the walk was not the cause of plaintiff's fall. (2) That the evidence is insufficient to warrant the conclusion that the hole or space was the cause of the injury received, and that the injury would not have been the same if the plank had remained there and he had fallen upon that.

The burden was upon the plaintiff to show that the defect in the walk caused the injury. Luedecke v. Buffalo. Opinion by James M. Smith, J.

corporation, pursuant to the statute of 1854, chap. 87, buildings erected thereon do not become the property of the person owning the fee of the highway upon which they stand, even though they are allowed to remain thereon a considerable length of time; and an injunction cannot be maintained at the suit of such person against a purchaser of the buildings from one of the directors of the late company to restrain him from removing them. Johnson v. Heiser. Opinion by Beckwith, J.

FORECLOSURE-RIGHTS OF MORTGAGEES AS TO SALE OF PARCELS.-A mortgagee of two lots of land released one of them from the lien of his mortgage, and at the same time the mortgagor gave a mortgage to B. on the lot released. Held, that the former mortgagee had a right to insist that the lot released, the title to which still remained in the mortgagor, should be first sold to hardt v. Lymburner. Opinion by James M. Smith, J. satisfy a prior mortgage held by another party. Bern

PLEADING -INFANCY EVIDENCE NOT OBJECTED TO.- The defense of infancy must be pleaded in order to be available. Where defendant's counsel asked him his age, and the question was not objected to, and no further evidence was given upon the subject, held, that plaintiff was not precluded from raising the objection, upon exception to the judge's charge to the jury, that the defense of infancy not being pleaded, the testimony admitted was, under the issues, wholly immaterial. See Hamilton v. N. Y. Cent. R. R. Co., 51 N. Y. 100. Cutter v. Getz. Opinion by James M.

Smith, J.

JUSTICES' COURTS- -MISJOINDER OF DEFENDANTS.-The common-law rule that in an action upon contract against several persons alleged to be jointly liable, the plaintiff must establish the joint liability of all the defendants in order to recover against any of them, no longer prevails even in justices' courts. That rule was adopted when the rules of pleading and practice were highly artificial and technical, and the rule itself is purely technical. It rested upon the doctrine that the allegations of the pleading must be proved exactly and without the slightest variance. Now, no variance between the pleadings and proofs is regarded, unless it affects the merits and the essential rights of the parties, and amendments are allowed upon very liberal terms. The rule should cease with the reason for it. It was adopted in justices' courts from courts of record and was enforced in the former merely because it was established and enforced in the latter. As to the latter, the Code has changed it (§ 1204), and there ought not to be any difference between the practice in such cases in the courts of record and in the inferior courts. Otherwise, upon a new trial in the higher court (old Code, § 352), there would be this anomaly in the law: plaintiff could recover against one defendant and dismiss as to the other, while he could not do so in the court below. Therefore, where in an action against several, upon an alleged joint contract, plaintiff proves one of them liable upon the contract, but fails to establish the liability of the others, he may have judgment

against one, and be dismissed as to the others. Lowe

v. Rommel, 5 Daly, 17; Ackley v. Tarbox, 31 N. Y. 564; McGuire v. Johnson, 2 Laus. 305. Hammer v. Knell. Opinion by James M. Smith, J.

CRIMINAL LAW.