Mr. Sigmund Zeisler, of the Chicago bar, has, in The Forum for May, prepared an elaborate and interesting review of the system requiring unanimous vote of juries. He shows that the progress in the development of the jury system has been slower than in most other lines of development, and that unanimous verdicts are now required in few civilized countries, except our own. He collects a great mass of information, and cites cases to show the uselessness of requiring a unanimous vote, and argues that the majority vote should be substituted for it. Those who cling tenaciously to the argument in favor of the time-worn practice of unanimity in juries will find in this article much food for thought.

NOTES OF RECENT DECISIONS.

BANKS AND BANKING-PAYMENT OF FORGED CHECKS.-The Court of Appeals of Kentucky, in Deposit Bank v. Fayette National Bank, 13 S. W. Rep. 339, rendered an interesting decision on the subject of payment of forged checks. It was there held that where forged checks on a bank purporting to be drawn in the name of one of its principal depositors, and running through a period of five months before the forgery is discovered, are accepted and paid by the drawee bank to other banks which accepted and paid them in good faith after inquiry of the drawee as to the depositor's account, the drawee bank must stand the loss. Pryor, J., says:

Which of the banks should lose the money? The bank at Georgetown, where the depositor, Burgess, whose name had been forged, deposited his money; or the banks at Lexington, where the money was paid to Wolfe under the belief that the checks were genuine, and Burgess in fact the drawer? It is evident that the bank at Georgetown honored the checks drawn upon it by Burgess, for the reason that its officers believed the name of the drawer was genuine; and, if the liability of the Lexington banks to refund this money is to be determined by the well known rule of law applicable to the payment of money through a mistake of fact, the judgment in this case is erroneous. It is insisted, however, that it is a rule of commercial law long since recognized, and now firmly established, applicable at least between parties equally innocent of fraud, that the bank or its officers must know the signature of its depositor; and if such a doctrine is made to apply in this case, the appellant is the loser, and the judgment dismissing its petition was proper. The rule laid down by Lord Mansfield is that, if the banker or drawee makes a payment or gives credit upon the strength of a forged signature, the loss must be his, as between himself and the holder. "He has not

known what he is bound to know." Price v. Neal, 3 Burrows, 1355. This doctrine of commercial law has been followed and recognized by nearly all the courts in the country, and as said by Mr. Justice Story in the case of Bank of U. S. v. Bank of Georgia, 10 Wheat. 333, delivered in 1825, has never been departed from, and, in the earlier cases on the subject, able jurists, in alluding to this rule, regarded it as essential as a rule of justice, and right between business men. Mr. Morse, in his work on Banking, has collated the authorities, and presented what he terms the modern doctrine on this subject; but after a careful examination of the authorities referred to, it will be found that the decided weight of authority is with Lord Mansfield, and the rule laid down in Price v. Neal is criticised only as being too sweeping in its character. Nor is it

just to say that the rule adopted requiring the bank to know the signature of its depositor is without an exception; for it is undoubtedly true that the neglect or knowledge of intervening parties who come into the possession of the check, and receive the money on it from the bank where it is payable, will in some instances be of such a character as to enable the bank to recover back the money. This doctrine is recognized by Mr. Daniel in his work on Negotiable Instruments; and, while doubting the justice of the rule recognized by nearly all the authorities, under which the bank is required to know the signature of its depositor, he proceeds to say that when one knows that it is a forgery, or takes it "under circumstances of suspicion, without proper precaution, or whose conduct has been such as to mislead the bank," the money may be recovered back. Volume 2, p. 669. The case of National Bank v. Bangs, reported in 106 Mass. 441, and relied on by counsel for the appellant in this case, was where a stranger giving his name as "William D. Riskford" drew his check, payable to the order of E. D. & G. W. Bangs, on the National Bank of North America. Bangs. indorsed the check, and the bank paid the money, and, when discovering the forgery, notified Banks, the payee and indorser, and sued to recover the money back; and a judgment was obtained. This, we think, was proper, as it would be an exceedingly harsh rule to permit one who negotiates with the payor, and obtains his check payable to the use of the party obtaining the money, who then indorses it to a bank, to hold on to the money when the payee has himself contracted with the payor, and given credit to the payor by his indorsement, that led the bank to believe the paper was genuine. The case of Ellis v. Trust Co., reported in 4 Ohio St. 628, sustains this view of the question. The case relied on is unlike the case before us. The banks at Lexington took the checks in the ussual course of business, with the indorsement of the payee, and then indorsed the paper for collection, forwarding it to appellant's bank, where the money was credited to the Lexington banks, and charged to the account of the one supposed to be the bona fide drawer of the paper. In the case relied on, of National Bank v. Bangs, it is said: "If the suit were between the bank or drawee and a party who took the check in the usual course of business, finding it in circulation, or even by first indorsement from the payee, the loss would fall upon the bank; because, having greater means and opportunity to become familiar with the handwriting of their correspondents or depositors, the law presumes that drawees will know their signatures and be able to detect forgeries. * But this responsibility, based upon presump. tion alone, is decisive only when the party receiving the money has in no way contributed to the success of

the fraud, or to the mistake of fact under which the payment was made." There is a manifest distinction between the case of one who is both the payee and indorser of the check, and who negotiates directly with the payor in the loan or advance of the money for which the check is given, and a bank taking a check by indorsement from the payee in the usual course of business, with no ground of suspicion, and that receives the money on the check from a bank where the funds of the drawer are deposited. One of the two innocent parties must suffer, and there must be some rule of commercial law to guide banks and business men in this character of business transactions. Therefore, when a bank has the means of knowing the signature of the drawer of a check upon it by reason of the drawer being its depositor or customer, the relation between the bank and its depositor is such that the bank must be presumed to know that the signature is genuine when making payment.

The case of Ellis v. Trust Co., reported in 4 Ohio St. 628, recognizes this rule, and says the foundation for it is: "The party is supposed to know his own handwriting in the one case, or that of his customer or correspondent in the other, much better than the holder can; and the law, therefore, allows the holder to cast upon him the entire responsibility of determining as to the genuineness of the instrument, and, if he fails to discover the forgery, imputes to him negligence, and, as between him and the innocent holder, compels him to suffer the loss." After conceding the general doctrine on the subject, the court proceeds to say that the holder may by his negligent conduct deprive himself of the benefit of this rule, and that case was decided upon the ground that the holder had contributed to induce the payee to believe the paper was genuine. All the cases cited in the text-books or relied on by appellant, while they criticise the rule as barsh, only make the particular case under consideration an exception to the rule, and permit the recovery by the drawee for the reason that the holder of the paper receiving the money was himself neglectful, and caused the loss, or by his conduct made the drawee believe the paper was gennine. These cases are exceptions to the rule, but all recognize the doctrine that where the parties are equally innocent the drawee paying the money must suffer the loss. The two cases --one found in 22 Neb. 769, 36 N. W. Rep. 289, of First Nat. Bank v. State Bank, and the other of People's Bank v. Franklin Bank, 12 S. W. Rep. 716-go further in discarding the rule than any cases to which our attention has been called; but in those cases the banks upon which the checks were drawn were permitted to recover upon the ground that the banks paying the checks had neglegted to make the proper inquiry as to the identity of the holder, who was a stranger, and that this was such a want of precaution as deprived the bank advancing the money of any superior equity as against the bank upon which the checks were drawn. The cobrt expressly says in the Nebraska case that the loss may therefore be traced directly to the negligence of the plaintiff in error. Whether the facts of those cases justified the conclusion reached is not necessary to inquire, as, after a careful review of all the authorities, it is found that the general doctrine fixing the liability on the drawee in such cases is fully sustained. In the case of Espy v. Bank, reported in 18 Wall, 604, the money was paid on a raised check, neither party being in fault.

While it rests upon one signing his own name, or that of a bank affixing its signature, to notes to pass as current money, to know that the signature is genuine,

it also rests on a bank, where checks are drawn upon it in the name of its customer, to know his signature; and, instead of the party to whom the money is paid being required to show negligence in the bank paying the money, it devolves on the drawee to show negligence in the indorser or holder who in good faith has received the money before the drawee can escape liability. When the parties are equally innocent the drawee is the loser. There is no precedent in this court on the question. Still, we are not inclined to follow the views of text-writers, in the face of so many adjudications on the subject, and with no case presented that goes further than to modify the rule in cases where bad faith or negligence is to be attributed to the holder or indorsee when taking the check.

NEGLIGENCE

EVIDENCE OF AFTER RE

PAIRS. Two recent cases have considered the subject of the admissibility in negligence cases of evidence of repairs made after the accident. One is Terre Haute & I. R. Co. v. Clem, 23 N. E. Rep. 965, decided by the Supreme Court of Indiana. The other is Lang v. Sanger, 44 N. W. Rep. 1095, decided by the Supreme Court of Wisconsin. In the first case it was held that in an action against a railroad company for injury caused by alleged negligence in the construction of its road, evidence that after the accident the company changed and repaired its road is inadmissible to show negligence. Elliott, J., says:

Evidence of repairs made after an injury has been sustained is incompetent to show antecedent negligence. This question was carefully considered by the Supreme Court of Minnesota in the case of Morse v. Railway Co., 30 Minn. 465, 16 N. W. Rep. 358, and three of the earlier decisions of that court were overruled.

* The authorities are collected and discussed in the case of Nalley v. Carpet Co., 51 Conn. 524, and it was there said: "The fact that an accident has happened, and a person has been injured, immediately puts a party on a higher plane of diligence and duty, from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend rather than condemn the person so acting. If the subsequent act is made to reflect back upon the prior one, although it is done upon the theory that it is a mere admission, yet it virtually introduces into the transaction a new element and test of negligence, which had no business there, not being in existence at the time." The question received consideration in the very recent case of Hodges v. Percival (Ill.), ante, 423, and in the course of the discussion the court said: "The happening of an accident may inspire a party with greater diligence to prevent a repetition of a similar occurrence, but the exercise of such increased diligence ought not, necessarily, to be regarded as tantamount to a confession of past neglect." The rule asserted in the cases from which we have quoted is declared in many other cases. Dougan v. Transportatlon Co., 56 N. Y. 1; Baird v. Daly, 68 N. Y. 547; Dale v. Railroad Co., 73 N. Y. 471; Salters v. Canal Co., 3 Hun, 338; Payne v. Railroad Co., 9 Hun, 526; Cramer v. Burlington, 45 Iowa, 627; Hudson v. Railroad Co.,

59 Iowa, 581, 13 N. W. Rep. 735; Ely v. Railroad Co. 77 Mo. 34.

The rule stated and enforced in the cases referred to is the only one that can be defended on principle. To declare the evidence competent is to offer an inducement to omit the use of such care as the new information may suggest, and to deter persons from doing what the new experience informs them may be done to prevent the possibility of future accidents. The effect of declaring such evidence competent is to inform a defendant that if he makes changes or repairs he does it under penalty, for, if the evidence is competent, it operates as a confession that he was guilty of a prior wrong.

In the Wisconsin case it was held that evidence in an action for injuries received through the alleged dangerous condition of a gangway in defendant's saw-mill, that defendant, after the accident, made repairs, is inadmissible, even in rebuttal of defendant's testimony that the repairs were made before the accident. Orton, J. says:

In Castello v. Landwehr, 28 Wis. 524, the bridge was repaired after the accident, and the circuit court refused to instruct the jury that they might consider that fact as evidence "that it was a needed and proper proceeding to make the bridge safe and secure." Mr. Justice Lyon, in the opinion, makes such an inference still more unreasonable and preposterous by saying: "If the fact admitted of such an inference, then the fact that a person, at a certain time, commerces using and exercising extraordinary care in a given case, may be used against him to prove that, before such time, he had failed to use reasonable and ordinary care." It was held that the court did not err in refusing to give such an instruction. In Morse v. Railway Co., 30 Minn. 465, 16 N. W. Rep. 358, the supreme court of that State, after a very careful and considerate review of this rule of evidence, overruled several previous decisions of that court, the other way, and held such evidence inadmissible, for the same reason by saying in substance, that a person may have exercised all the care the law requires, and yet may afterwards have made the repairs as a measure of extreme caution. See, also, Dougan v. Transportation Co., 56 N. Y. 1: Sewell v. City of Cohoes, 11 Hun, 626; Baird v. Daly, 68 N. Y. 547; Payne v. Railroad Co., 9 Hun, 526; Salters v. Canal Co., 3 Hun, 338; Dale v. Railroad Co., 73 N. Y. 468.

LANDLORD AND TENANT-DANGEROUS PREMISES INJURIES TO SERVANT OF TENANT.-The liability for injuries caused by a nuisance on premises let, was considered by the Supreme Court of Texas, in Perey v. Reyband, 13 S. W. Rep. 177, where it was held that a landlord, who does not covenant to repair, is not liable to a servant of the lessee injured by the falling of a cistern caused by decayed and insufficient supports, though he knew of the defect, and had promised to repair, as such promise was without consideration. Collard, J., says:

It is well settled that the owner of leased premises is liable to the public or to third persons for injuries

resulting from a defective structure on the premises when the defect existed at the time the lease was made, or when he had covenanted to repair, and keep in repair. Thomp. Neg. 317; Marshall v. Heard, 59 Tex. 267; Owings v. Jones, 9 Md. 108; Grady v. Wolsner, 46 Ala. 381; Helwig v. Jordan, 53 Ind. 21. The case at bar is not an action by a stranger, but by the servant of a tenant against the owner; and in such case the rule seems to be that the landlord is liable only when he had contracted or is under obligation to keep the tenement in repair, or has been guilty of fraud or deceit which would release the tenant from his implied obligation to repair. The action in that case was against the landlord for an injury of the wife of the sublessee, and, referring to the case of Godley v. Hagerty, 20 Pa. St. 387, which held a contrary doctrine, say that, in that case, "some importance was attached to the fact that the building was erected by the defendant. This may have been regarded as proper in that case, as tending to show him guilty of fraud;" and the court proceeds to show that cases where one erects a nuisance on his premises, and afterwards parts with the possession, have no application to the case under consideration; and then concludes, that "there is no reason for holding the lessor, in the absence of any agreement or fraud, liable to the tenant for the present or future condition of the premises, that would not be equally applicable to a similar liability sought to be imposed by a grantee in fee upon his grantor." The following cases, besides those cited in the foregoing case, assert the same doctrine, that there must be an express covenant or agreement by the lessor to keep in repair, in order to make him liable to the tenant. Scott v. Simons, 54 N. H. 431; Brewster v. DeFremery, 33 Cal. 341; O'Brien v. Capwell, 59 Barb. 497. The last case cited is, in principle, like the one before us. The action was by a washerwoman in the employ of the tenant, against the landlord, and the court held that where there is no fraud, false representations, or deceit; and, in the absence of an express warranty or covenant to repair, there is no implied covenant in favor of the tenant; and, as the plaintiff stood in his place, there was no liability on the part of the landlord to her.

The authorities are abundant sustaining the doctrine that the owner cannot create a nuisance on his premises, and relieve himself of liability to a third person injured thereby, by leasing. It is also the law that he would be liable to a stranger where the defective structure causing the injury is on the premises when they are leased; but such liability would not exist in favor of the tenant, where there is no contract by the landlord to repair and no frand, because he does not owe the tenant the duty of repairing, as he does the public and strangers. The cases cited by plaintiff, holding the landlord liable, are cases where the injury was to third persons lawfully upon the rented prem. ises, or where the landlord owed a duty to the public to repair. The cases cited are Albert v. State, 7 Atl. Rep. 697; Ranken v. Ingwersen, 10 Atl. Rep. 545; Joyce v. Martin, Id. 620; Dalay v. Rice, 12 N. E. Rep. 841. The first case was a suit by a minor for damages for death of parents who were drowned in consequence of the negligence of the owner of a wharf leased. The next case was a suit by a tenant of one part of a building for damages resulting from the bursting of water-pipes in another part of the building, occupied by another tenant, who had covenanted to repair, where it was held that the landlord of the tenant on whose premises the pipes were defective was liable. The next case was where the owner of a defective wharf leased it in a defective condition. It was held that he was liable

to one lawfully using it for the purposes for which it was intended. The court held both lessor and lessee liable. Dalay v. Rice, the next case cited, was an action for damages by a person who, while lawfully using a way abutting leased premises, fell into a coalhole upon the way. In none of these cases was the suit by the tenant, or the servant of the tenant, of the premises having the defective structure upon them, and none of them is authority for the proposition that the landlord would be liable to such tenant or servant, where he was under no obligation or contract to repair. The mere fact that there was a nuisance on the premises at the time the property was rented would ordinarily render the lessor accountable for damages to a stranger lawfully passing thereon, whether he contracted to repair or not; and, in case he had not so contracted, both the lessor and lessee would be liable.

It is alleged, however, in plaintiff's petition, that he did not know of the defects in the supports of the cistern, but that defendant did know the fact at and before the injury, and that at the request of her tenant, Watts, she had promised to make the necessary repairs, but had failed and refused to do so. This allegation may have been set up to show that defendant was liable, because she had so promised and contracted. The promise was merely gratuitious, not made at the time of the lease, and was no part of the original contract. It was without consideration, and could not be enforced. There is a case similar to this. where the suit was brought by the tenant. He had requested the landlord to repair a privy attached to the tenement, and the landlord agreed to do so. He, with some common laborers, attempted to make the repairs. Reported to the tenant's wife that the privy was safe. She went into it the same evening, when the floor fell through, and she was precipitated into the vault, and injured. The court, discussing the case, say: "In the ordinary contract between landlord and tenant, there is no implied warranty on the part of the former that the demised premises are in tenantable condition. He is under no obligation to make repairs, unless such a stipulation makes a part of the original contract; and any promise to do so, founded merely on the relation of the parties, and not one of the conditions of the lease, would be without consideration, and for that reason would create no liability. But, although a gratuitous executory contract of that kind would not be binding upon him, he would place himself in a very different position if he should see fit to treat it as binding, and actually enter upon its fulAllment. He is at liberty to repudiate it, or to perform it at his option; but, if his choice should be to perform it, he comes under some degree of liability as to the manner of its performance." Gill v. Middleton, 105 Mass. 478, 479, and authorities cited. We have quoted freely from this case, because it is the law of the point under consideration in the case before us, and is decisive of it. The reasoning is sound and well presented, and saves us further discussion.

him, such treatment on his part amounts to desertion by him. Pitney, V. C., says:

The contention of the petitioner is that she was compelled to leave her husband, and to live separate from him, by his utter and complete neglect to provide for her, and his persistent and long-continued cruel treatment of her, by which her existence was rendered extremely miserable, and her life actually endangered. That such treatment of a wife by a husband will amount to desertion on his part is well settled in New Jersey. Chancellor Zabriskey in Starkey v. Starkey, 21 J. Eq. 136, says: "In all cases where a husband either actually drives his wife from himself and his house, or by his cruel and abusive treatment compels her to leave it for safety or comfort, it is an abandonment and separation by him." And again, in Laing v. Laing, 21 N. J. Eq. 249, he says: "It is a recognized principle that when a husband treats his with such cruelty or violence that she is obliged to leave him for safety, or to avoid personal injury, this compulsory flight amounts to a desertion by him; and if he does not seek his wife, and try to persuade her to return with promises of amendment, that such absence, if continued for the requisite time, is a willful and obstinate desertion on his part." And, further on: "To convert a leaving by the wife into a desertion by the husband, she must go away for her own safety, and protect herself from his violence." This language of Chancellor Zabriskie is repeated and adopted by Chancellor Runyon in Sandford v. Sandford, 32 N. J. Eq. 421. And Vice-Chancellor Van Fleet, in Skean v. Skean, 33 N. J. Eq. 151. says: "The husband may drive his wife away, or he may treat her so brutally as to compel her to flee for safety, or his conduct may be so cruel and malignant as to show that he means to force her away. If a wife, for either of these causes, separates herself from her husband, and he allows her to remain away for the statutory period without professing sorrow for his violations of conjugal duty, and promising to amend his conduct, and asking her to return, he, in the eye of the law, is the deserter, and she has a right to ask for a dissolution of the marriage tie." And again, in Weigand v. Weigand, 41 N. J. Eq. 208, 3 Atl. Rep. 699, he says: "A husband is guilty of abandonment when he compels his wife, by cruel and abusive treatment, to leave him. *** If, in consequence of his conduct, she is compelled to leave his house, either to preserve her honor and self-respect, or to secure safety, he is the cause of the separation, and must be adjudged to be the wrong-doer." And see Marker v. Marker, 11 N. J. Eq. 256. It is not, in my judgment, a neccessary ingredient in this canon that the husband should entertain, in conection with his acts of cruelty,and settled purpose to drive his wife from him. It is enough if such is the natural consequence of his acts.

CRIMINAL LAW-LOTTERY-FREE CHANCE. -The question as to what is a lottery and in what lies its legal objection, is discussed by the Supreme Court of Alabama, in Yellow Stone Kit v. State, 7 South. Rep. 338. The fact appears in that case that defendant gave exhibitions in a tent as an adjunct to the sale of patent medicines. Tickets were distributed among the audience entitling the holders to a chance for certain prizes offered. The

court held that this was not a lottery, such as to render defendant liable to indictment, as there was no consideration paid directly or indirectly for the chance of participating in the distribution. Somerville, J., says:

The case turns largely on what is to be taken as a property definition of the word "lottery," within the meaning of the statute, and the constitution of Alabama. Code 1886, §§ 4068, 4069; Const. 1875, art. 4, § 26. The word cannot be regarded as having any technical or legal signification different from the popular one. It is defined by Webster as "distribution of prizes by lot or chance." This definition is substantially adopted by Bouvier and Rapalje in their law dictionaries. Worcester defines it as "a distribution of prizes and blanks by chance; a game of hazard in which small sums are ventured for the chance of obtaining a larger value." So the American Cyclopedia thus defines a lottery: "A sort of gaming contract, by which, for a valuable consideration, one may, by favor of the lot, obtain a prize of a value superior to the amount or value of that which he risks." In / Buckalew v. State, 62 Ala. 334, it was said, after citing Webster's definition, that" wherever chances are sold and the distribution of prizes determined by lot, this, it would seem, is a lottery. This, we think is the popular acceptation of the term." In Bishop on Statutory Crimes, § 952, it is said: "A lottery may be defined to be any scheme whereby one, in paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine." In Hull v. Ruggles, 56 N. Y. 424, the New York court of appeals adopts the following as the result of the accepted definitions: "Where a pecuniary consideration is paid, and it is to be determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to receive for it, that is a lottery." This definition is approved in Wilkinson v. Gill. 74 N. Y. 63, as the popular meaning of the word, and one proper to be adopted with a view of remedying the mischief intended to be prevented by the statutes prohibiting lotteries; and it is said: "Every lottery has the characteristics of a wager or bet, although every bet is not a lottery."

It may be safely asserted, as the result of the adjudged cases, that the species of lottery the carrying on of which is intended to be prohibited as criminal by the various laws of this country, embraces only schemes in which a valuable consideration of some kind is paid, directly or indirectly, for the chance to draw a prize. U. S. v. Olney, 1 Deady, 461, 1 Abb. (U. S.) 275; Governors, etc., v. Art Union, 7 N. Y. 228; Ehrgott v. Mayor, 96 N. Y. 264, 48 Amer. Rep. 622; Bell v. State, 5 Sneed, 507; Com. v. Thacher, 97 Mass. 583. There is no law which prohibits the gratuitous distribution of one's property by lot or chance. If the distribution is a pure gift or bounty, and not in name or pretense merely, which is designed to evade the law-if it be entirely unsupported by any valuable consideration moving from the taker,-there is nothing in this mode of conferring it which is violative of the policy of our statutes condemning lotteries, or gaming. We may go further, and say that there would seem to be nothing contrary to public policy, or per se morally wrong, in the determination of rights by lot. A member of the College of Christian Apostles, as sacred history informs us, was once chosen by lot. And under the law of this State a tie vote on a contested election of any State officer is required to be settled in the same mode.

So our statutes authorize a distribution of property owned by joint tenants to be made by lot under the direction of the judge of probate. These are not the evils against which the law is directed. • The cases on this subject are very numerous, and while the courts have shown a general disposition to bring within the term "lottery" every species of gaming in volving a distributon of prizes by lot or chance, and which comes within the mischief to be remedied-regarding always the substance and not the semblance of the things so as to prevent evasions of the law, we find no decision in which the element of a valuable consideration parted with, directly or indirectly, by the purchaser of a chance, does not enter into the transaction. Buckalew v. State, 62 Ala. 334; State Bryant, 74 N. C. 207; Com. v. Wright, 50 Amer. Rep. 306; Com. v. Wright, 50 Amer. Rep. 306; State v. Clarke, 66 Amer. Dec. 723; State v. Shorts, 90 Amer. Dec. 668; Wilkinson v. Gill 30 Amer. Rep. 264.