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option" laws have recently been held valid in New Jersey, State v. Morris Common Pleas, 12 Am. L. R. (N. S.) 32, and in Pennsylvania in a decision of the supreme court not yet reported.

DAMAGES AGAINST CARRIERS.

We lately examined in these columns the difficult and controverted question involved in Hadley v. Baxen

A contemporary is informed by a correspondent, that among the causes which contributed to the defeat of Judge Lawrence, in Illinois, was his answer to an address from the bar asking him to run, which Mr. Craig signed, in which Judge Lawrence plainly intimated his belief, that lawyers were better fitted to select judges than farmers or other laymen. Another reason given was his opinion in favor of punishing the editor and the proprietor of the Chicago dale, 2 W. R. 302, 9 Ex. 341, and the recent case of Evening Journal, for contempt in publishing an abusive article about the court, concerning a decision in a pending case. And another cause assigned was his "aristocratic airs"— a phrase said to mean that he dresses neatly, and has dignified manners in court; whereas Craig dresses like a farmer, as he is, attended farmers' meetings with patched coat and wornout boots, and resorted to other devises common among the cheap demagogues. For these weighty reasons, the honest and intelligent farmers of Illinois have elevated Craig to the bench in place of an experienced, able and upright jurist.

NOTES OF CASES.

In Lyman v. Inhabitants of Amherst, 107 Mass. 339, it was held in an action against a town for an injury received by a traveler through a defect in a highway; that the fact that knowing of the defective place, the plaintiff voluntarily attempted to pass it is not conclusive evidence of want of due care, but is a circumstance for the jury to take into consideration. The same doctrine was held in Whittaker v. West Boylston, 97 Mass. 273; Frost v. Waltham, 12 Allen, 85; Rindge v. Colraine, 11 Gray, 157. But in Wilson v. Charlestown, 8 Allen, 137, the same court held that a person passing over a sidewalk which he knows to be dangerous, by reason of ice upon it, when he might easily avoid it, cannot maintain an action against the town for injuries received by falling upon the ice. To the same effect also, is Horton v. Ipswich, 12 Cush. 488.

In State v. Weir, 33 Iowa, 134, the supreme court held that the legislature have no power to make the operation or repeal of a law dependent upon a vote of the people, and that, therefore, an act to provide for the prohibition of the sale of ale, wine and beer in counties by a vote of the people was unconstitutional. This decision goes directly to the question of the validity of the so-called "local option " laws, and is in accordance with the following decisions of the same court: Santo v. State, 2 Iowa, 203; Geebrick v. State, 5 id. 492, and also with a recent Massachusetts decision not yet reported. These decisions are placed upon the ground that such an act is a delegation to the people of the law-making power, and, as such power cannot be delegated, void. See, also, Barto v. Himrod, 8 N. Y. 483. On the other hand, "local

Horne v. Midland Railway Company, 21 W. R. 481; L. R. 8, C. P. 131. We propose now to make a short review of the authorities as to the measure of the damages recoverable against carriers, where no special notice or contract intervenes. The question may arise under four different states of circumstances - either the carrier has received the goods and has not delivered them, or he has made delay in delivery, or he has delivered the goods in a damaged state, or he has made default in receiving them to be carried.

It is under the first of these heads that the rule seems to have reached the most settled condition both in the English and the American courts. Where there has been an entire failure to deliver goods which have been received to be carried, there has been, in the first place, an entire failure of the consideration in respect of which the freight was agreed to be paid; the freight, therefore, if already paid, can be recovered back. But, besides this, the goods themselves are lost; the sender is therefore entitled to their value. But what is their value? Prima facie, their value is what it was at the time of delivery to the carrier. But with respect to articles of commerce, which form the great bulk of consignments, a further consideration arises. The duty of the carrier was to transport them in safety to a particular place at a particular time. If he had performed his duty they would have been available to the sender at that place and time. By the carrier's default, therefore, the sender loses the advantage which he would have had if they had been so available. It is fair, therefore, that he should recover their value as it would have been at the place of destination. But, in order to get the goods to that place, freight must have been paid for their transport thither, and that freight will itself form part of their value at that place. In estimating their value, therefore, at that place, the freight must be deducted, or the seller will recover that which he has never lost. Unless, therefore, the freight has been paid in advance, the damage will be the value of the goods at the place of destination, after deducting the freight which must have been paid to get them there, but which by reason of this non-delivery has never become due, or has ceased to be due. This rule was explicity stated in Brandt v. Bowlby, 2 B. & Ad. 939, by Parke, J., and again in Rice v. Baxendale, 10 W. R. C. L. Dig. 16; 7 H. & N. 96, and it seems to have been conceded without argument in Sanquer v. London and South Western Railway Company, 2 id. 148; 16 C. B. 163. It had been adopted at a still earlier date in America in Watkins v. Laughton, 8 Johns. 213, 1811; Amory v. Macgregor, 15 id. 24, 1818; and was followed in Arthur v. The Schooner Cassius, 2 Story, 81, 1841; The Joshua Barker, 1 Abb. Adm. 215. It has been thought that a different rule was laid down by Lord Ellenborough in Parker v. James, 4 Camp. 112, where the sender of goods, which were captured as prize through the negligence of the shipowner, recovered merely the value

of the goods when put on board. But this is not so, for Lord Ellenborough expressly said: "I have no evidence before me that the goods were worth more," thus plainly intimating that evidence would have been admissible to show that the goods had increased in value. In Wheelwright v. Beers, 2 Hall, 391, 1829, indeed, the sender whose goods were improperly sold at an intermediate port for a sum less than their cost price (which sum he had received) was only allowed by the supreme court at New York to recover the difference between the cost price and the amount realized by the sale; but from this judgment Berkeley, J., the only judge who delivered any reasons- -dissented, and the decision cannot, therefore, claim much authority. In England, at least, the rule is clearly established by uncontradicted authority.

To that rule, however, which supposes an ascertainable market value for the goods at the place of destination, an addition was made in the case of O'Hanlan v. Great Western Railway Company, 13 W. R. 741; 6 B. & S. 484, which provides for circumstances where the goods are to be delivered at a place where there is no market for such goods- that is, no market in which the owner of the lost goods can provide himself with similar goods at a wholesale rate. "The natural and fair measure of damages is the value of the goods at the place and time at which they ought to have been delivered to the owner. Now, the value of the goods at the place of delivery must be the market price, if there is a market for such goods; if there is not, either from the smallness of the place or the scarceness of the particular goods, the value at the place and time of delivery would have to be ascertained as a fact by the jury, taking into consideration various matters, including, in addition to the cost price and expenses of transit, the reasonable profits of the importer, which are adjusted by what is called the higgling of the market. * * ** The jury must say what is the fair and reasonable profit which persons in the ordinary course of business would be likely to make." Per Blackburn, J., 6 B. & S. 491, 492; 13 W. R. 741.

But, in the absence of special contract, it is only damages capable of being measured by this general standard that can be recovered; not special damages arising from the peculiar arrangements or circumstances of the plaintiff. Thus, sub-sales effected by the sender of the goods in reliance upon their due delivery, expenses incurred in awaiting their arrival, and special loss caused by reason of the plaintiff, through poverty, being unable to replace the missing goods, were disallowed by the court in Rice v. Baxendale (ubi sup.)

The rule which governs the damages where the goods have not been delivered must also govern the case where the goods have been delivered, but in a damaged state. Here, however, as the goods actually come to the hands of the owner, it is only the difference in value that can be recovered, and the two items of comparison must be the value of the goods as it would have been at the place of destination if they had been delivered there sound, and their value as it was at the place and in the condition in which they were actually delivered. It is plain that the circumstances which determine the value of sound goods at the place of destination in cases under the first head will govern both terms of the comparison here; there may be a market for damaged goods as well as for sound ones; and again, it is quite possible that the only reasonable way of disposing of damaged goods may be to send

them back to the place from which they came. In Collard v. South Eastern Railway Company, 9 W. R. 697, 7 H. & N. 79, the damage to the goods was such that they could only be made salable by the performance of an operation which caused delay; the damages allowed were the difference between their value at the time when they should have been delivered sound, and their value after they had been so treated, which | included, not only depreciation in intrinsic value, but fall of price during the delay. It is evident that this was the best means of arriving at what they were really worth in their damaged condition, and was the most favourable way of taking it for the defendants.

Under the head of delay, by analogy to the rule adopted in the case already mentioned, it follows that the damages must be the difference between the value at the place of destination of the goods at the time when they ought to have been delivered, and their value when they are delivered in fact. At first sight it may seem absurd to say that where goods are not delivered for, suppose, a year after the time when they ought to have been, the sender can recover only nominal damages, if the value of the goods and their price at the place of destination has not varied, although all the purposes for which the sender required them may have long since ceased. But in applying this rule, it must be remembered, on the one hand, that non-delivery within a reasonable time is good evidence of loss, and that, practically, therefore, the owner need never wait very long before bringing his action. On the other hand, it must be considered, that since, in this case as in the others, only general circumstances of damage can be taken into account, that loss which arises out of the special arrangements and circumstances of the plaintiff, and which is usually of far greater importance, must, in the absence of special contract, be discarded. Upon this last point we need only refer to the observations in these columns already referred to (ante, p. 381), and to the cases of Wilson v. Lancashire and Yorkshire Railway Company, 9 W. R. 635; 9 C. B. N. S. 632; Great Western Railway Company v. Redmayne, L. R. 1 C. P. 329, and Woodger v. Great Western Railway Company, 15 W. R. 383; L. R. 2 C. P. 318. In the first of these cases (Wilson's case) the profits expected to arise from the manufacture of the goods into articles of dress, the season for which expired during the delay, and traveling expenses uselessly incurred; in the second (Redmayne's case), the profits expected to arise in retailing the goods through the presence at the place of destination of the plaintiff's travelers, who were compelled to leave before the goods arrived; and in the third (Woodger's case), the expenses of the plaintiff's travelers detained in idleness through the non-arrival of the goods, were held not recoverable. It is doubtful whether Black v. Baxendale, 1 Ex. 410, is consistent with those cases and the principles laid down in them, but from the peculiar circumstances of that case it cannot be relied on. The general rule above mentioned seems to be also adopted in America. Kent v. Hudson River Railway Company, 22 Barb. 278.

In Redmayne's case the rule was laid down with sufficient clearness; only the difference between the respective values of the goods at the respective times above mentioned was allowed to be recovered, and it was said that "the market value of the goods was their value in the market, independently of any circumstances peculiar to the plaintiff." In Wilson's case a

somewhat liberal construction was put upon this rule, which does not really vary it, but the limitation of which needs to be carefully observed. The plaintiff was allowed, in estimating the value of the goods at the respective periods, to take into account "the fluctuations of the season," by reason of which the goods were less available for profitable use at the time when they, in fact, arrived, than they would have been if they had arrived in due time. The circumstance relied on was that the caps, into which the cloth was to be made, were out of season when the goods arrived. The effect of this would be that possibly the cloth would be unsalable then, or only salable at a great loss; and that, perhaps, it could only meet a market by being sent back to the place whence it came. Looked at in this way, the evidence as to the season for the caps being over would be admissible, not as being itself evidence of loss, but as explaining why the cloth had fallen in value; and the case would be analogous to that of O'Hanlan v. Great Western Railway Company, mentioned above. The notion that the profits to be obtained by the manufacture of the caps could be recovered was distinctly repudiated.

RECKLESS REPORTING.

The Committee of the Bar Association of New York give the following instances of reckless reporting which have come under their observation in examining the reports issued during the last five years:

The Trustees of the Auburn Theological Seminary v. Calhoun was reported by Barbour in 1872. 62 Barb. 381. It was decided in 1862. The length of time that elapsed between the decision and the report, ten years, is bad enough, but Barbour had reported the same case in almost the same words in 1863. 38 Barb. 148. And, to make the matter worse, the decision had been reversed by the court of appeals a year before Barbour first reported it. 25 N. Y. 422.

Sweetman v. Prince, 62 Barb. 256, was decided in 1862, and reported by Barbour in 1872. It had been unanimously reversed by the court of appeals in 1863. 26 N. Y. 224.

Matteson v. N. Y. Central R. R., 62 Barb. 364, was decided in 1862. Barbour reported it in 1872. It had been affirmed by the court of appeals in 1866. 35 N. Y. 487.

Wait v. Green, 62 Barb. 241; Vickery v. Dickson, 62 id. 269; Crain v. Cavana, 62 id. 109, were decided in 1862. They were reported by Barbour in 1872. He had reported the same cases in 1872, only giving the opinions of other justices as those of the court. 35 Barb. 585; 35 id. 272; 36 id. 410. The former was affirmed by the court of appeals in 1867. 36 N. Y. 556.

Spaulding v. Strang, was reported by Tiffany in 37 N. Y. 135. He reports the same again, giving another opinion in 38 N. Y. 1, without any reference to the first report.

Beach v. Bay State, at special term, is reported in 6 Abb. Pr. 415; 16 How. Pr. 1; 27 Barb. 248. This decision was reversed at general term and the opinion is reported. 30 Barb. 433; 18 How. Pr. 335; 10 Abb. Pr. 71.

Matter of Douglass at special term is reported in 58 Barb. 174; 9 Abb. Pr., N. S., 84, and 40 How. Pr. 201. It was reversed by the court of appeals, and is reported in 46 N. Y. 42, and 12 Abb. Pr., N. S., 161.

The decision of the general term of the superior

court, in Mayor, etc., v. Erben, 10 Bosw. 189, and 24 How. Pr. 358, was affirmed by the court of appeals. The opinion published in 38 N. Y. (11 Tiff.) 305, was a dissenting opinion. It is printed as the decision of the court.

The digest in 37 How. Pr. 547, and Abbott's Dig. Supp. 8, are misled by the above report, and give as the law established by the court of appeals the reverse of what was in reality decided.

Eight decisions of the court of appeals reported in Keyes' reports are republished in Howard's reports, the year after they appeared in Keyes.

In Schuchardt v. Mayor, etc., 59 Barb. 295; Joslyn v. Fiske, 59 id. 308, there were no judgments, the two judges who heard the cases having disagreed, and yet the cases are reported at length.

Mullford v. Muller, 1 Keyes, 31, has a head-note, containing a single proposition which the court distinctly said they did not determine.

Alexander v. Hard, 42 How. Pr. 131, was carelessly reported. The error is corrected at page 384, at the request of a justice of the supreme court.

Little v. Dean, 1 Keyes 235, and 34 How. Pr. 68, reports the opinion of Johnson, J., as that of the court. After this opinion was prepared the cause was re-argued and a different decision reached, which is reported in 34 N. Y. 452. This is the final decision of the court on the question involved.

Gilbert v. Gilbert, 1 Keyes, 159, and 34 How. Pr. 142. This case is misreported, the opinion being a dissenting opinion. The order of the general term was reversed, and the judgment on the report of the referee affirmed.

Hartly v. Tatham, 24 How. Pr. 505, and 10 Bosw. 273. On the second trial, the defendant prevailed and judgment was affirmed in 1 Robb. 246, and 26 How. Pr. 158, and this decision was modified by the court of appeals. This decision is misreported in 1 Keyes, 222.

Wilcox v. Green, 23 Barb. 639, was decided in 1854; it was reported in 1859; it had been affirmed by the court of appeals in 1856.

Mills v. Stewart, 62 Barb. 444, was decided in 1862; it was reported in 1872; it had been affirmed in effect by the court of appeals in 1869. 41 N. Y. 384.

Grant v. Johnson, 5 Barb. 161, and 6 id. 337, was reported in 1858. This decision had been reversed by the court of appeals in 1851. 5 N. Y. 247.

Davis v. Peabody, 10 Barb. 91, is misreported. Instead of a new trial being granted, the judgment was affirmed. See 1 Commissioner's draft R. S., p. 581.

Burgher v. Columbia Fire Ins. Co., 17 Barb. 274, is misreported. The opinion of Edmonds, J., printed, was a dissenting opinion. The opinion of the court was by Roosevelt, J., and instead of a new trial being ordered, the judgment was affirmed.

Griggs v. Howe, 2 Keyes, 574, and Johnson v. Hathorn, 2 id. 476, were reported a second time by Keyes in the same words. 3 Keyes, 168; 3 id. 126.

The opinion reported in Day v. Saunders, 3 Keyes, 347, was not only never adopted by the court, but was never delivered.

The opinion of Wright, J., in Smart v. Bement, 3 Keyes, 241, was not adopted by the court. They modified the judgment to some extent in accordance with the opinion of Leonard, J.

The opinion in Clark v. Mayor, etc., 1 Keyes, 9, was not adopted by the court. The only point determined in the case was that discussed in the unreported opinion of Selden, J.

COMMISSION OF APPEALS ABSTRACT.

AFFIDAVIT- - PROTEST— EVIDENCE.

1. An answer verified in the usual form cannot be treated as an affidavit, within the meaning of that provision of the act of 1833, relative to proceedings in suits and for other purposes. Section 8, chapter 27, Laws of 1833, which provides that the certificate of a notary, of presentment and protest of a promissory note, shall be presumptive evidence of the facts therein stated, unless defendant shall annex to his plea an affidavit denying the fact of having received notice of non-payment; and if so treated it is not sufficient, as the denial must be positive and unequivocal, not upon information and belief, nor is an affidavit not annexed to the answer, a sufficient compliance with the statute to destroy the effect of the certificate as presumptive evidence. A notarial certificate, founded upon a presentment and demand made, not by the notary, but by his clerk, is void. Gawtry et al. v. Doane. Opinion by Earl, C.

2. Entries by a deceased clerk of a notary of presentment and demand, made in the ordinary and usual way, in a register kept by the notary for that purpose, are competent evidence to prove such presentment and demand. Ib.

3. The next day after presentment and demand of payment of a note, payable at a place in the city of New York, the clerk of the notary examined the city directory to find the address of an indorser, whose address was not upon the note; not finding it he inquired of the maker who gave him a wrong address, to which he mailed notice. Held, that this was due diligence and sufficient to charge the indorser. Ib. 4. Where evidence has been properly received, the party against whom it has been introduced has no absolute right to have it stricken out when its effect has been destroyed by other evidence. The proper practice upon a jury trial is for such party to request the court to charge that such evidence is not to be considered by them, and in case of refusal, he will have a good exception. Ib.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

Actions to set aside an assignment by defendant, Samuel M. Welch, made by him for the benefit of his creditors. The fraud alleged was in preferring a balance upon a note executed by Welch under the following circumstances: In 1845, Welch's father-in-law conveyed to him certain real estate upon a verbal agreement that Welch should sell it and use the proceeds in his business, and at some future day pay or secure the entire proceeds to his wife. Welch sold the lands and received for them $2,789.57, which he used in his business. In June, 1860, the wife appointed an agent to settle with Welch, and on an accounting he settled the amount due at $4,970.67. Welch allowed interest on the whole amount received by him. At the time he was insolvent. He gave notes for the amount, payable to the agent or bearer. When the assignment was made, these notes were all paid but a balance of $486.29, which was preferred in the assignment. Held, that Welch's promise was for a good consideration, and imposed an equitable and moral obligation upon him which he might voluntarily perform; that lapse of time was not a defense he was bound to regard, and that, therefore, the note was for a good consideration, and its preference not fraudulent per se. Earl C. dissented on the ground that Welch had not agreed to pay interest, and the presumption was, that the use

was to be a gift to him. He was therefore, under no obligation, legal or equitable, to pay the interest, and having overpaid the principal, the preference of the interest unpaid was fraudulent and void. McCartney, Rec'r, etc., v. Welch et al. Claflin et al. v. Same. Opinion by Leonard and Earl CC.

ATTORNEY'S LIEN.

M. had a claim against defendants. He agreed with D., an attorney, that if he would sue and collect the claim without costs to him, he would give him half. In May, 1859, D. recovered a judgment for $1,033.34 damages and $68.03 costs for M., against the defendants, and instituted various measures to collect the same during that year. He did not succeed, and took no further proceedings until in February, 1866, when he issued an alias execution, and learned that M. had satisfied the judgment in May, 1863; that defendant was insolvent when the judgment was recovered and until after it was satisfied; that they paid M. on the satisfaction of the judgment $250. D. made a motion for an order of the court setting aside or vacating the judgment.

Held, that the motion was properly denied; that an attorney has a lien upon a judgment recovered by him for any sum agreed upon between him and his client as a compensation for his services, as well as his costs in the judgment, and, to the amount of such lien, is to be deemed an equitable assignee. When the recovery is solely for costs the judgment itself is legal notice of the lien, and this lien cannot be discharged by payment to any one but the attorney. But where the judgment is for damages and costs it is not notice of the lien even for the taxed costs, and such lien can be protected only by notice to the judgment debtor. Earl, C., dissenting. Marshall v. Meech et al. Opinion by Earl, C.

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Action to recover damages for being put off of defendant's cars. Plaintiff purchased of defendant a passenger ticket from Buffalo, upon the presentation of which, with the checks or coupons attached, plaintiff was entitled to one first-class passage only. One check was from Buffalo to Albany, and the other from Albany to New York, via the Hudson River Railroad. Upon the checks were the words "this check forfeited if detached." At Utica plaintiff left the train. He testified that the first check was detached by the conductor as he alighted. This was denied by the conductor, who testified he found the check, after plaintiff left, at the head of the berth he occupied. On the day following plaintiff took another train east, and upon his refusal to pay the fare was put off the cars. He then paid his fare under protest, and went on to Albany. On the trial, evidence was given of a conversation between plaintiff and conductor, after the arrival at Albany, in which the latter applied to the former various slanderous and abusive epithets. Defendant requested the court to charge that the conduct of the conductor, at Albany, was not to be considered, as defendant was not responsible therefor. This request was refused.

Held, error; that it was not a part of the res gesta, that defendant could not be held responsible for the quo animo of the conductor beyond the purpose of ejecting plaintiff, and the fact that the evidence was received without objection did not render the refusal proper. Hamilton v. N. Y. C. R. R. Co. Opinion by Lott, Ch. C.

2. Also held (Lott, Ch. C.), that plaintiff's ticket only entitled him to a single continuous passage to Albany, without the right of stopping at an intermediate station and renewing the journey by another train. But if he had such a right he lost it if he voluntarily or negligently detached the check. Ib. COMMON CARRIERS- TRANSPORTATION OF ANIMALS. Action to recover damages for the loss of forty-three hogs, out of a lot transported for the plaintiff by defendant, from Buffalo to Albany. Defendant agreed to transport the hogs at a reduced rate of freight, in consideration of plaintiff's assuming the risk of injuries from heat, etc. The forty-three hogs died from the effects of heat, the result of the negligence of defendant's employees in not watering and cooling the hogs by wetting them.

Held, that as the common-law liability of carriers did not apply to live stock, but in the transportation thereof they were only liable for negligence, the assumption, in the contract, of the risks of injuries by heat by plaintiffs must be construed as exempting defendant from liability for injuries by heat, the result of negligence. Defendant was not liable. Cragin et al. v. N. Y. C. R. R. Co. Opinion by Earl, C.

INSURANCE-CONDITION.

Defendant issued to plaintiffs a floating policy of insurance upon merchandise in any of the warehouses and while in transitu, in any of the streets of New York, Brooklyn and Jersey City, subject to a condition, in substance that the policy should not extend to cover goods upon which there was any specific insurance, except as far as relates to any excess of value beyond the amount of such specific insurance, which excess was declared under the protection of the policy. A fire occurred in a warehouse wherein plaintiffs had merchandise to the amount of $386,026, covered by specific insurance to the amount of $324,000. The amount of the loss was $274,192.46.

Held, that the intent of the condition was to throw a loss upon the specific insurances, unless it exceeded them in amount, and as the specific insurance exceeded the value of the goods destroyed, the interest insured by the policy was not affected, and defendant was not liable to contribute any portion of the loss. Fairchild et al. v. Liverpool and London F. & L. Ins. Co. Opinion by Earl, C.

MARRIED WOMEN- PLEADING- JOINDER OF PARTIES. 1. Action on two promissory notes made by Orrin G. Staples to Helen N. Staples, who indorsed the notes and delivered the same to plaintiff, at the same time guarantying the payment of them. Defendant Helen N. Staples set up as a defense, that at the time the notes were indorsed and guarantied by her, she was a married woman, and that the indorsement and guaranty were made without any valuable consideration, and were not for her benefit or for the benefit of her separate estate. She moved to dismiss the complaint on the grounds that to enable plaintiff to recover he should have demanded to charge her estate for the debt, and not a general judgment for money. That there was no allegation upon which it could be proved that the debt was her debt, or was contracted for the benefit of her estate. That the complaint showed the wife was surety for the husband, and as such she could not be charged. That the maker and guarantor of a note cannot be jointly charged.

Held, that it was not necessary to allege in the complaint in this action, that the notes were given in the

wife's business, or for the benefit of her separate estate, nor to ask judgment charging her separate estate, and it was proper to frame the complaint as if defendant was a femme sole. On coverture being interposed as a defense, testimony proving the contract enforceable against a femme covert is proper in reply. Hier v. Staples, impleaded, etc. Opinion by Lott, Ch. C.

2. An objection to the joinder of a maker and guarantor of a promissory note as parties defendant is waived by an omission to raise it by demurrer or answer, and a several judgment may be rendered against either. Ib. PRACTICE ON APPEAL-SUPERIOR COURT OF NEW

YORK.

1. A question as to the constitutionality of a law, or as to the sufficiency of a pleading, cannot be raised for the first time in the court of appeals. It cannot consider a matter or subject not presented for adjudication to and determined by the lower court. Delaney v. Brett et al. Opinion by Lott, Ch. C.

2. The provision of section 23, chapter 137, Laws of 1828, establishing the superior court of the city of New York, and which authorizes the chief justice to perform all the duties which a justice of the supreme court is authorized to do out of term, is general and unrestricted, and authorizes them to perform all the duties of a justice of the superior court of chambers. A justice of said court has authority to issue an attachment on a lien claimed under the act providing for the collection of demands against ships and vessels. (Chap. 482, Laws of 1861.) Ib.

SALE-WARRANTY PLEADING. Plaintiff brought an action against defendant for damages on the sale of a horse. The complaint alleged, in substance, that defendant offered to sell plaintiff his horse, which was lame in one hind leg; that, on the sale, defendant warranted and falsely and fraudulently represented that the lameness resulted from an injury to his foot; that it was in his foot and nowhere else; that the lameness was only of a temporary character, and the horse would soon be all right. Relying on these representations, plaintiff bought the horse. That, at the time of the warranty and sale, the horse was in fact not lame in his foot, but in his gambrel joint, which was badly diseased, and that defendant, at the time of the sale, knew this to be the case. On the trial, plaintiff proved a warranty and a breach thereof, but gave no evidence tending to show fraud.

Held, that the gravamen of the action was fraud and not a breach of the warranty, and that plaintiff could not recover upon proof of the latter only. Lott, Ch. C., dissenting. (Williamson v. Allison, 2 East. 446, disapproved.) Ross v. Mather. Opinions by Hunter, C., and Lott, Ch. C.

SPECIFIC PERFORMANCE

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MARRIED WOMAN. Action brought for the specific performance of a contract between plaintiff and defendant, for the sale of certain real estate. Defendant, by her answer, alleged her coverture, and that the premises were incumbered. Plaintiff contracted to sell the premises to defendant,. free of incumbrances, for $2,500, defendant agreed to purchase by paying $500 when the deed was given, and for the balance to give her bond and mortgage payable in installments. The premises were incumbered with mortgages to the amount of $3,000, and remained so at the time of the trial. Plaintiff tendered a deed to defendant at the time agreed upon in the contract. Before the tender of the deed defendant had written plaintiff

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