3. (For collision.) In an action on the case for a collision of vessels, the plaintiff is not entitled to recover, if the injury is in any degree attributable to his own want of care; and where such is the fact, and he obtains a verdict, a new trial will be granted. Barnes y. Cole, 21 Wendell, 188.

4. (Malicious prosecution.) An action on the case for a malicious prosecution lies against a party who falsely and maliciously prosecutes another, although the court in which such prosecution was had was utterly destitute of jurisdiction in the matter; consequently it is not necessary in the action for the malicious prosecution to aver or prove that the court in which were the proceedings complained of had jurisdiction, provided that the malice and falsehood of the charge be put forward as the gravamen, and the arrest or other act of trespass be alleged merely as a consequence. Morris v. Scott, 21 Wendell, 281. 5. (Culpable negligence.) Where a child of such tender age as not to possess sufficient discretion to avoid danger, is permitted by his parents to be in a public highway without any one to guard him, and is there run over by a traveller and injured, neither trespass or case lies against the traveller, if there be no pretence that the injury was voluntary or arose from culpable negligence on his part. Hartfield v. Roper, 21 Wendell, 615. 6. (Same.) In an action for such injury, if there be negligence

on the part of the plaintiff, there cannot be a recovery; and although the child, by reason of his tender age, be incapable of using that ordinary care which is required of a discreet and prudent person, the want of such care on the part of the parents or guardians of the child furnishes the same answer to an action by the child, as would its omission on the part of the plaintiff in an action by an adult. Ib.

7. (Same.) The same rule, it seems, would apply in an action by a blind or deaf man, or a person non compos, who, under similar circumstances, received an injury on a public highway. Ib. CONSIDERATION. (Covenant.) Where lands were sold and conveyed by deed, containing a covenant for quiet enjoyment, and the purchaser executed his bond for the consideration money,

it was held, that it is no defence to an action on the bond, that the grantor was not seized in fee and had no right to convey the premises, if there be no allegation of any fraudulent representation on the part of the plaintiff in respect to the title; the above facts showing neither a failure or an original want of consideration. Whitney v. Lewis, 21 Wendell, 131,

2. (Inadequacy.) A promise or obligation cannot be defeated in whole or in part, on the ground of the inadequacy of the compensation received for the obligation incurred-the slightest consideration is sufficient to support the most onerous obligation; the meaning of the rule that you may impeach the consideration is only that you may show fraud, mistake or illegality in its concoction, or non-performance of the stipulations of the agreement on the part of the promissee. Oakley v. Boorman, 21 Wendell, 588,

3. (Recoupement.) Where an action is brought for breach of a contract, whether the same be sealed or not, and the defendant can show that the plaintiff has not performed the contract on his part, according to its terms or spirit, so as to entitle him to a cross-action, he may at his election, instead of bringing an action in his turn, recoupe his damages arising from the breach committed by the plaintiffs, whether they be liquidated or not. Ives v, Van Epps, 22 Wendell, 155.

4. (Same.) It seems, however, that in such case, the defendant should give notice with his plea of his intention to insist upon the right of recoupement. Ib.

CONTRACT. (Consideration.) A promise, by the holder of a joint and several note, to one of the makers who had made part payment thereof, that he would look to the other maker for payment of what remained due thereon, is without consideration, and furnishes no defence to an action against the maker, to whom such promise was made, to recover the remainder of the note. Smith v. Bartholomew, 1 Metcalf, 276. 2. (Same.) A promise to pay a demand which the promisee had voluntarily released for the purpose of rendering the promisor a competent witness in a suit against the promisee, is without

consideration, and an action thereon cannot be sustained. Af

ter such release, there is no such moral obligation to pay the demand, as will support a promise to pay. Valentine v. Foster,

1 Metcalf, 520.

3. (Construction.) It was agreed between A. and B. that if A. would, at his own expense, complete a certain machine which he had projected, and satisfy B., by trial thereof, that it would save one fourth, or more, of the expense then incurred by B. in a certain manufacturing process, B. would pay A. twelve per cent. on the actual savings made by said machine. A. built the machine in B.'s warehouse; but B. in fact paid all the expenses of building it, including the labor of A. thereon. B. used the machine, and the savings made by the use thereof more than repaid him the expense of constructing it. Held, that the machine was the property of B. Boston India Rubber Co. V. Hoyt, 1 Metcalf, 139.

4. (Rescinding.) Where goods are sold and delivered, and the seller afterwards agrees to receive in payment therefor the note of a third person, indorsed by the payee and another, and the buyer delivers such third person's note, on which the promised indorsements are forged, the seller cannot, upon discovering the forgery, maintain an action against the buyer, for goods sold and delivered, until he has rescinded the agreement and returned, or offered to return, the note. Coolidge v. Brigham, 1 Metcalf, 547.

5. (Same.) A contract cannot be rescinded by one of the parties for the default of the other, unless both of them can be put in the same state as before the contract. It must be rescinded in toto; and if the party rescinding has received property of any value, however inconsiderable, under the contract, he must restore it to the other party. Ib.

6. (Accident.) Where a person contracted to build a house on the land of another, and the house was, before its completion, destroyed by fire, without his fault, it was held, that he was not thereby discharged from his obligation to fulfil his contract. Adams v. Nichols, 19 Pickering, 275.

7. (Same.) If a person contract to build a house for another, and on his land, and the house, before its completion, be destroyed by fire, he is not entitled to any compensation for the labor and materials bestowed and furnished in pursuance of the contract. Adams v. Nichols, 19 Pickering, 279.

8. (Terminating of.) The plaintiff having agreed to spin at the defendants' factory at a certain rate per yard, and for a certain time, upon being furnished by them with the material, and the defendants having failed, occasionally, to supply sufficient material, it was held, that the plaintiff waived his right to terminate the contract on the ground of such failures, if he continued in the defendants' service for such a length of time afterwards, as would lead the jury to infer a waiver; and that if the plaintiff left the defendants' service without saying at the time, that he left on that ground, he thereby waived such right, so far as regarded deficiencies in the supply of material happening a short time before he left. Thayer v. Wadsworth, 19 Pickering, 349. 9. (Time of payment.) If a contract for service to be performed for a certain time be silent as to the time when payment is to be made therefor, the presumption that payment is to be made. at the expiration of the term of service, and not in part before that time, may be rebutted by any evidence from which a jury may lawfully infer a different arrangement between the parties. Ib.

10. (Leaving of service.) If the plaintiff, having agreed to work for the defendant for a definite period, voluntarily leaves the defendant's service without any fault on the part of the defendant and without his consent, before the expiration of the term, he cannot recover, either on the express contract or on a quantum meruit, for the labor actually performed by him. Olmstead v. Beale, 19 Pickering, 528.

CONVEYANCE. (Monuments.) In a deed of conveyance of woodland, the boundary line was described as running, "northerly to land of M., thence southeasterly by M.'s land, thirtyeight rods and one half, to a stump and stones ;" and immediately after the conveyance the parties went upon the land

and a monument was pointed out as being at the northwesterly corner, and a stump and stones as at the northeasterly corner, and the length of the line between them was exactly thirty-eight rods and a half; but a gore of land intervened between this line and the land of M. It was held, that the monuments were to govern, and therefore that the gore did not pass by the deed. Frost v. Spaulding, 19 Pickering, 445. CORPORATIONS. (Remedy against delinquent stockholders.) Where an incorporated company, the capital stock of which is divided into shares, are authorized by their act of incorporation to make calls upon the stockholders for the payment of the sums by them respectively subscribed, in such proportions and at such times as the directors see fit, under penalty of forfeiture of the shares subscribed and of the previous payments made thereon, the company may, in case of non-payment, proceed by suit to recover the amount of the calls, or may declare a forfeiture of the stock. Herkimer Manuf. and Hydraulic Co. v. Small, 21 Wendell, 273.

2. (Same.) So even after suit brought, they may declare a forfeiture of the stock, and such latter proceeding cannot be pleaded in bar of the further maintenance of the suit, where the value of the stock forfeited is not equal to the money due to the company. The stockholder, however, is entitled in such case, on the assessment of the damages, to insist that the value of the stock forfeited shall be allowed in mitigation or diminution of the sum which the plaintiffs would otherwise be entitled to recover. Ib.

3. (Same.) Where the stock forfeited is equal in value to the money which may be demanded by the company, the forfeiture may be pleaded in bar; but a plea of forfeiture without such averment of value is bad. Ib.

4. (Same.) The clause in an act of incorporation of a turnpike or railroad company authorizing a forfeiture of stock and previous payments in cases of non-payment of calls, confers a cumulative remedy; and does not deprive the company of the right to proceed by action for the recovery of subscrip