minister oaths; they cannot perpetuate evidence; and, in such case only, the proof required by the statute is necessary. The legislature is responsible for this legislation. It is not necessary that the road should have been constructed in the town of Scipio. Under the statute the directors of the Midland road were authorized to construct branches, etc., as they deemed feasible; and the towns along or near the line of said road, or its branches, were authorized to issue bonds in aid of said company (Midland) on the construction of said branches. The road to be aided is the Midland, and the money raised is to be applied in aid of the Midland, which includes the branches. The money raised is not to be used in the construction of the branches only. The relator's second point is, that the acts under which the town of Scipio is bonded are unconstitutional and void, because they embrace more than one subject not expressed in the title, and are local bills. The title of the act is, "An act to facilitate the construction of the New York and Oswego Midland Railroad Company, and to authorize towns to subscribe to the capital stock thereof." Held, not unconstitutional.

The relator's fifth point is, that the assessors could not adjudge and determine, from their own knowledge, the identity of the persons whose names were signed to the consents, with the names on the assessment rolls. Held, that, as the statute provided no means for proving those facts, the personal knowledge of the assessors was sufficient. The statute not requiring any particular evidence, the action of the assessors was valid, however the evidence may be obtained.

Held, that from the very necessity of the case, the affidavit and determination of the assessors is conclusive in this proceeding as to the facts therein stated. The proceedings and determination of the county judge affirmed. The People ex rel. Aiken v. Morgan. Opinion by Mullin, P. J.

CERTIORARI.

The respondents were railroad commissioners under an act of the legislature authorizing certain towns to bond themselves in aid of a railroad. They proceeded in conformity with the statute and issued the bonds of the town. More than two years after the making of the affidavit required by the statute, and the issuing of the said bonds, the writ of certiorari was issued in this proceeding.

Held, that the allowance of the writ rests in the sound discretion of the court, and even if it will lie it does not follow that it will be awarded in every case where a relator may have some ground of complaint, and that where more than two years have elapsed since the filing the affidavit required by the statute, and the issuing of the bonds, before the writ was issued, and new rights have been acquired, the writ should be dismissed and quashed. People ex rel. Davis v. Hill. Opinion by E. D. Smith, J.

COMPLAINT.

Joinder of actions.- The complaint in this action in the first count alleges that, on the 11th day of December, 1861, defendant, for value, etc., assigned to plaintiff a certain judgment. That said defendant, on the 11th day of April, 1865, discharged said judgment of record, and that some of the defendants in said judgment, subsequent to the discharge of said judgment, were the owners of certain personal property which, but for the said discharge of said judgment, would have been liable to execution and sale, and that said defendants in said judgment are now insolvent, and

that plaintiff was injured by said discharge, etc. The second count in said complaint contains an ordinary count for money had and received. Defendant demurs to complaint, on the ground that two causes of action have been improperly joined, viz.: one for a tort, and one on contract. The judge at special term overruled the demurrer.

Held, that the first count contains a cause of action in tort; to make it a count on contract the pleader should have alleged that the defendant undertook and promised not to assign said judgment. That there was no implied promise by defendants not to assign said judgment. That if there was an implied promise by the bank not to assign, plaintiff should have alleged such promise. 20 Wend. 94. The second cause of action being on contract, causes of action were improperly joined. Demurrer sustained. Booth v. The Farmers' National Bank. Opinion by Mullin, P. J.

DAMAGES.

Plaintiff was an employee of a railroad company, and employed in coupling cars. Defendant wantonly, and with the malicious purpose of injuring the property of the company, secretly uncoupled some of the cars and threw away the pins used in coupling them. Plaintiff's hand was injured in consequence of such uncoupling. In an action at the circuit the plaintiff had a verdict. The circuit judge charged the jury, “that if the defendant took the pins out of the cars in the loaded trains, and in the ordinary use and management of the trains, without any want of care or inattention on the part of the plaintiff, or any other person in charge, or management or use of the train, the plaintiff sustained the injury by reason of such removal of the pins from the cars, as described by the witnesses in the effort to couple the cars, and in the ordinary discharge of his duties to the railway company, then the defendant is liable."

Held, that the charge is substantially correct and sound. Where a person commits, as defendant did in this case, a willful and malicious trespass upon the property of another, under circumstances involving unavoidable injury to persons and property, the law is well settled that he is responsible to any person injured by such trespass. It is not necessary that he should intend to do the particular injury which follows. Judgment affirmed. Munger v. Baker. Opinion by E. D. Smith, J.

DEMURRER.

Defendant sold to W. McL. and D. his interest in a certain lease of oil lands, and represented that the lease was good, and that he owned it, etc. The representations were false and the lease was valueless. The lease was purchased of defendants in the name of D., but for the benefit of D., McL. and W. McL. and W., before the commencement of this action, assigned all their rights, legal and equitable, in and to the money paid by defendant to plaintiff, and D. released defendant from all demands he had against him growing out of the matters in suit. The first count in the complaint contained a cause of action for damages, for fraud and deceit in the sale of the lease to W. McL. and D. The second count was on an implied averment that defendant had an interest in said lease that he pretended to sell to W. McL. and D.

The third and fourth counts were for money paid to defendant by W. and McL. respectively, and assigned to plaintiff, and stated that plaintiff was indebted to

W. and McL. "as above stated," referring to the first count.

The defendant demurred on the ground of the misjoinder of the parties plaintiff that several causes of action were improperly joined, and that facts sufficient to constitute a cause of action were not stated. The special term overruled the demurrer.

Held, (1) That the first count contains a cause of action for deceit, and that it was assignable; that defendant having released D. the action was thereby severed, and the other injured parties may maintain actions for their damages; (2) That the second count does not contain a cause of action; (3) That the allegations in the third and fourth counts, that defendant is indebted to plaintiff for money, etc., had and received by defendant of W. and McL. (plaintiff's assignees)" on, etc., as above stated" in first count, incorporated the allegations of the first count in the one containing such reference, and renders them counts for money had and received by means of false and fraudulent representations, and as the liabilty grows out of the same transaction as is alleged with that contained in the first count, they are properly recited. Order of the special term affirmed. Woodlary v. Deloss.

DOWER.

Emblements. One C. died, leaving certain real estate, and a widow and heirs at law. C. entered into a contract with certain parties to seed down a certain part of his lands on shares, and in pursuance of this agreement the land was seeded before C.'s death. Subsequent to C.'s death a portion of this land so seeded was assigned to the widow as her dower. The crop on the said land was harvested, and the proceeds taken by C.'s administrators, of whom the widow was one, as assets of the estate of C., and said administrators paid all the expenses of harvesting said crop. The widow did not object to the appropriation of the proceeds of said crop by the said administrators. The widow died, and when the administrators of C. came to settle their accounts the surrogate charged them with the proceeds of said crop. The administrators appeal from the decision of the surrogate, on the ground that the proceeds of said crop belonged to said widow, and that her representatives may claim it. Held, that a widow is entitled to the crops growing on the land assigned to her for her dower, and she takes whatever is on the freehold at the time of her husband's death. (2) That the crops in question belonged to the widow, and her neglect or failure to claim the proceeds does not affect the right of her representatives to demand the avails now. By allowing the proceeds of the crop to go into the assets of the estate of C., without objection, did not affect her rights to claim the proceeds. The widow neither said or did any thing which estopped her during her life, or her representatives, since her death, from demanding the avails of the crops. Decree of the surrogate reversed. Clark v. Battorf. Opinion by Mullin, P. J.

EJECTMENT.

Boundary line: adverse possession. — Plaintiff and defendant each claimed title to a strip of land which was covered by defendant's deed, but which had been occupied by plaintiff and his grantors for many years, under claim of title, supposing it covered by his deed. The supposed line between the parties was different from the line as expressed in the deeds of the respective parties. Defendant moved the fence forming the supposed line; hence this action.

Held, that the charge of the circuit judge to the jury: "that if the division line was established by the grantors of the plaintiff and defendant respectively, or those under whom they claimed, and they possessed and occupied respectively up to such time, recognizing it as the true boundary, and such occupation and acquiescence by them and their successors continued twenty years or more, prior to the removal of the fence by the defendant, the plaintiff claiming up to said line, then the plaintiff was entitled to recover, otherwise not," was correct. Robinson v. Phillips. Opinion by E. D. Smith, J.

EXECUTION.

Sheriff's fees: liability of attorney on.— The defendant, as attorney for one T, commenced an action against the N. Y. C. R. R. Co. to recover penalties for illegal fare collected, etc., and recovered a judgment against said railroad company of $4,328.48, which judgment was affirmed by the general term. Defendant, as attorney, issued an execution against said railroad company for said amount and gave it to plaintiff herein, as sheriff of Monroe county to collect. Sheriff made his levy and before the execution was satisfied the said judgment was modified by the court of appeals and reduced to about $128. Notice of modification was served on plaintiff, as sheriff, and he was notified to collect the amount of the judgment as modified and return the execution as satisfied. The sheriff returned the said execution and the amount collected thereon as modified and retained his fees for poundage on such sum, and demanded his poundage on the entire amount of the execution, viz.: on $4,378.48. This action is brought by plaintiff, as sheriff, against defendant, as attorney, etc., to recover the amount of the entire poundage on the whole $4,328.48. There was a judgment for the plaintiff. Held, (1) That an attorney is liable to a sheriff for his poundage on an execution; (2) That when a judgment has been reduced by the court on appeal, even after levy on an execution under it, the sheriff is entitled to his fees or poundage only on the amount to which said judgment has been reduced. Judgment reversed. Campbell v. Catheron. Opinion by Mullin, P. J.

GUARDIAN.

Action on bond given by special guardian of infant.— Held, that his omission and neglect to account for the balance of the purchase-money of the infant's estate (after paying widow's dower interest), and to invest the same according to the terms of the sale and the order of the court, was a clear breach of his duty as such special guardian, and of the condition of his bond.

Held, also, that the court has still jurisdiction over the proceedings instituted by or on behalf of the infant for the sale of her real estate, and notwithstanding the verdict against the defendant in the action on the bond, if said verdict does him any injustice, it might still allow him to make a report of the sale and account for the proceeds thereof. Hunt v. Hunt. Opinion by E. D. Smith, J.

Plaintiff was a workman in employ of the Buffalo and Troy Towing Company, a joint-stock association under the laws of this State. Defendant, as president, was sued in justices' court for wages due plaintiff by the association. Defendant plead a general denial, but offered no evidence, on judgment by justice, in favor of plaintiff. Defendant appealed to the county court obviously to delay the plaintiff in getting his wages. The first specification in the notice of appeal is, that the judgment is against law and evidence.

Held, to raise no point, and to be no compliance with the statute. The second specification was, that there was not sufficient evidence to support the judgment. Held, not to specify any particular defect in the evidence. The third specification is, that the judgment should have been in favor of the defendant and against the plaintiff, with costs. Held clearly insufficient as a specification under the statute. The county court disregarded the points and affirmed the judgment of the justice. Held correct, and the judgment of the county court affirmed. Nolan v. Page. Opinion by E. D. Smith, J.

MALICIOUS PROSECUTION.

1. Action for malicious prosecution and false imprisonment: judgment for plaintiff on trial by jury.- Where the defendant's counsel moved to dismiss the complaint, on the ground that it did not show that defendant was a resident of the county:

Held, that an amendment on the trial was properly allowed. Van Voorhis v. Leonard. Opinion by E. D. Smith, J.

2. Defendant, after having preferred charges for larceny, under article 5, title 3, chapter 1, part 4 of Revised Statutes, which make it a larceny to sever, from the soil of another, produce growing thereon, of the value of $25, settled with the plaintiff, and gave receipt in full for all claims, and did not afterward prosecute the complaint.

Held, that the objection on the trial that defendant was not responsible for such prosecution was invalid. The justice could not recognize a settlement, nor the parties compound a felony. The question as to what took place upon the arrest, and before the magistrate, and as to defendant's acts, were properly submitted to the jury. The charge of the judge that if the plaintiff submitted to the control of the officer, upon being informed by him that he had a warrant for him, it was a sufficient arrest; and, also, that count for false imprisonment could not be sustained, was correct. Ib.

PARTITION-TRUSTEE.

Plaintiff, as trustee, was seized of an undivided onefourth part of premises as tenant in common with defendants. The trustee was to receive the rents and profits and apply the same to the support, education and maintenance of an infant until he attained his majority, with full power, in the discretion of the trustee to sell, grant, assign and convey said premises and invest and hold the proceeds on the same trust. In an action by the trustee for a partition of said lands, Held, that the action can be sustained. The trustee is of legal age, and seized of the premises and vested with the whole estate subject only to the execution of the trust. The person for whose benefit the express trust is created (under 1 R. S., part 2, ch. 1, § 60), takes no interest or estate in the lands, but may simply enforce the performance of the trust in equity. Plaintiff being seized of the lands sought to be partitioned may maintain the action under the statute providing for partition of lands. Galleo v. Eagle. Opinion by E. D. Smith, J.

PRACTICE.

This action was on a bond payable to the heirs of one L." to them, their heirs or their agents or to whomsoever they or either of them may designate," etc., was brought by plaintiff, as heir, to recover her share of the money due on the bond. The defendant is administrator of the estate of the obligor of said bond. There are seven other heirs besides plaintiff. The complaint,

amongst other things, alleges, "that plaintiff is one of the heirs mentioned in said bond, and as such is entitled to an equal eighth part of the sum due thereon, there being eight and only eight heirs, and each is entitled to an eighth part," etc. It is also alleged that plaintiff offered to refer said claim, but defendant refused. The defendant, in his answer, denies the complaint, etc., and sets up a non-joinder of plaintiffs. There was judgment for the plaintiff and the judge on the trial granted costs to plaintiff, and plaintiff inserted costs in the judgment. Costs were not asked for in the complaint. The defendant made a motion to set aside the judgment as the costs were improperly allowed; the plaintiff should have made a motion.

Held (1) that plaintiff was entitled to sue alone. That even if this was not so defendant waived the defect of non-joinder by not demurring. Such defect in this case could not be taken advantage of by answer that there were other heirs, not parties, appeared on the face of the complaint. (2) That on the facts alleged and proved in the case plaintiff was entitled to costs, and although the allowance by the court, without motion, was not regular, the judgment will not be set aside where defendant does not show any facts that render plaintiff's right to costs even doubtful. Judgment affirmed. Huss v. Willis, administrator. Opinion by Mullin, P. J.

PRACTICE- EVIDENCE.

1. A referee must pass upon a question at the time an objection is interposed, and cannot reserve his decision and decide it on the final disposition of the cause. Wagener v. Finch. Opinion by E. D. Smith, J.

2. Where plaintiff was advised by defendants, who were her attorneys, in an action, not to interpose any objections to their realizing as large an amount out of a fund as they could for their costs and expenses, assuring her that a certain proportion should inure to her benefit, and an allowance was made on hearing before a referee of a certain amount as their costs and expenses, it is not such an adjudication as to preclude the plaintiff, in an action between herself and said attorneys, from showing, by parol, what the arrangement between herself and said attorneys actually was. Ib.

SALE PRIZE PACKAGES.

The plaintiffs were merchants and manufacturers of candy in the city of Syracuse. Defendants reside in Seneca Falls. Defendants purchased of plaintiffs a quantity of candy and silverware. Plaintiffs were to put up the candy in packages, with tickets in certain packages. It was the intention of the defendants to sell the packages, and the purchaser who got a package with a ticket in it was entitled to a prize of silverware named on the ticket. The packages were what were commonly called prize packages of candy, and plaintiffs knew of the use to be made of them by defendants. Plaintiffs bring this action for the value of said packages and the silverware.

Held, that under the statutes relating to raffling and lotteries, the sale of such packages was unlawful, and as plaintiffs knew the uses to which the property in suit was to be put, is not entitled to recover. Judgment reversed. Hull v. Ruggles. Opinion by Mullin, P. J.

STATUTE OF FRAUDS.

1. Plaintiff, by parol, purchased of defendant a number of sheep, agreeing to apply as part payment a note owing him by defendant, and to pay the balance in cash. No money was actually paid. Plaintiff and

defendant, at the time of sale, separated the sheep from the flock and marked them with plaintiff's mark and put them in a separate inclosure, defendant agreeing to pasture them for a few days, and they were to be kept in a separate field, but upon suggestion that the pasturage in that field was poor, it was agreed to let them run with the other sheep. Defendant was to send to plaintiff's house for the note and the cash, but did not send, and subsequently, and soon after, sold the sheep to another party. Plaintiff tendered the note and a check, which being refused, he brought action for damage in a justice's court and obtained judgment. Defendant appealed to the county court, where a new trial was had. The county judge charged the jury that the contract was void under the statute, unless there was a delivery and acceptance of the sheep at the time of the bargain. The jury found a verdict, under the charge for the plaintiff.

Held, that the evidence clearly warranted the jury in finding for plaintiff; that the question was fairly submitted to them; that the sheep being selected and separated, and plaintiff's mark put upon them, warranted them in finding the transaction was a valid one. Judgment affirmed. Rappledge v. Adee. Opinion by E. D. Smith, J.

2. Where a woman, during the life time of her husband, since deceased, promised to pay a debt of his, such promise not being in writing, nor in such form as to bind her separate estate:

Held, that she was not liable. Bostwick v. Eldred. Opinion by E. D. Smith, J.

3. Nor is such promise good if made after his decease. It was a simple promise to pay the debt of another, and being without consideration was void by the statute of frauds. Ib.

3. Under the law as changed by Laws of 1853 (ch. 576, p. 1057), a husband may be made a co-defendant with his wife for debts of hers contracted before marriage; but the judgment shall bind the separate estate of the wife only, and execution shall issue only against said estate. Ib.

TOWN BONDING.

Void bond: cancellation: decision of United States supreme court, how far binding on State courts.-In the years 1852 and 1853 proceedings were had, and under the statute as it then existed the town of Venice was bonded in aid of a railroad company for $25,000. $2,000 worth of said bonds were sold by the commissioners of said town to one W. for cash, and $3,000 worth to one H. for cash, and the money paid directly to the railroad company, and the scrip of said company for stock was taken in return. The balance of said bonds, twenty in number, were transferred by said commissioners directly to the railroad company, and by said company sold to different parties. The statute under which these bonds were issued required as a condition, precedent to issuing said bonds, that the consent of two-thirds of all the tax payers of said town should be obtained. This action was brought to compel the surrender and cancellation of said bonds on the ground that the requiste number of consents were not obtained, and that defendant were not bona fide holders. All the persons holding said bonds are made parties defendants. The defendants put in answers, and all but W. and H. set up the statute of limitations. W. and H. set up counter-claims for money paid to said plaintiff. All the defendants claim that they are bona fide holders without notice. The requisite number of consents were not obtained before said bonds were

issued. The case was referred and the referee dismissed plaintiff's complaint as to all the defendants. Held, (1) That the affidavit of the assessors that the requisite number of the tax payers had signed the consents was not conclusive and did not estop the town from insisting that the required number of consents had not been obtained; that under the cases not only the bonds transferred to the railroad company and sold to defendants, but also those sold by the commissioners to defendants W. and H. were void (17 N. Y. 492). (2) That the fact that the defendants are bona fide holders for value being alleged in the answer in response to the allegations in the complaint, and no proof having been given by plaintiff on the trial on the point, does not have the effect to make the allegations in the answer stand as proved; it was an affirmative defense and must be proved. (3) That defendants were properly joined in a single action. (4) That a court of equity has powers to decree the cancellation and surrender of the bonds held by defendants. (5) That plaintiffs were not obliged to return or offer to return to the railroad company the stock received for said bonds before this action could be maintained; the defendants have no interest in the stock or right to demand a return of it, nor to ask any relief founded on its non-return; the defendants are clothed with none of the rights of the railroad company. (6) That the action of the commissioners in issuing the stock before the requisite consents had been obtained was fraudulent; that the town was charged with knowledge of the acts of its officers and the legality of their proceedings, and that the statute of limitations began to run from the time the bonds were sold or transferred by the commissioners, and that all right of action as against those defendants setting up the statute was barred.

H. and W. set up a counter-claim in their demurrer for money borrowed to and for the use of plaintiff. The allegation is not denied by plaintiff. The counter-claim was rejected by the referee, and defendants W. and H. have not appealed from his decision.

Held, this was not a counter-claim in this action. It had no connection with the unauthorized issue of bonds, nor is it connected in any way with the subject of the action. This action is not on contract; the counter-claim is. W. and H. should have appealed from the judgment of the referee, rejecting the counter-claim.

This court must follow the decisions of the court of appeals, where the decisions of the court of appeals and the supreme court of the United States are conflicting. Until the decision of the court of appeals is directly reversed by the United States supreme court, on a direct appeal from a judgment of the court of appeals, the judgments in favor of W. and H. reversed, and in favor of the other defendants affirmed. Town of Venice v. Breed et al. Opinion by Mullin, P. J.

Talcott, J., concurs in the conclusion that the bonds are void, but is of the opinion that the present holders of the bonds are entitled to require that the stock received by the plaintiff must be returned to defendants, as a condition precedent of relief; that defendants are subrogated to all the rights of the railroad company, etc. Schemerhain v. Tallman, 14 N. Y. 93.

TOWN BONDING.

Withdrawal of consents.- A petition purporting to be signed by a majority of the tax payers representing

a majority of the taxable property in the town of Belfast, in the county of Allegany, was presented to the county judge of said county. Said county judge caused to be published a notice that on a day named he would take proof of the facts set forth in said petition, etc. On the day stated in said notice, twenty-nine of the persons who had signed said petition appeared before said county judge, and requested that their names be taken off the said petition. The county judge refused to grant such request and accepted the petition. Had the twenty-nine names been struck off the said petition, there would not have remained the names of a majority in number and amount of the taxable inhabitants of said town upon it.

Held, that the refusal of the county judge to strike off said names from said petition was erroneous. Cites The People ex rel. Irwin v. Sawyer, in the court of appeals. Determination of the county judge reversed. The People ex rel. Angel v. Hatch. Opinion by Mullin, P. J.

NEW YORK COMMON PLEAS, 1873. AMENDMENTS. See Summons.

APPEALS.

1. What papers can be used on appeal to general term. - Upon the printed case furnished on this appeal, the judgment was reversed. This is a motion for a reargument upon the case, and upon books of account ouside of the case. It appears from a comparison of these books with the case, that certain extracts printed in the case are not correct. It was claimed that these books could be admitted under a stipulation before the referee.

Held, that a re-argument should be ordered. McDonough v. McDonough. Opinions by Larremore, J., and Daly, C. J.

2. Dissenting opinion. sent, says: "The general term is not the place to amend the case by proof aliunde. The stipulation in the case is not sufficient to bring the exhibits before the general term, having been given during the trial before the referee, and signed by him only, for the purposes of the argument before him. A transcript of the accounts being given in the case, although incorrectly, the books are not to be read on this argument, as in the case of voluminous exhibits and accounts too bulky to be printed and which are usually referred to by consent, as part of the case. Motion should be denied. Ib. Opinion by T. F. Daly, J., dissentient.

The learned judge in dis

right to re-purchase the property within a time named therein.

Held, that the agreement to re-purchase did not change the deed into a mortgage, but made the transaction a conditional sale, and the finding of the referee to that effect is correct. No subsisting indebtedness is shown, nor any intention to create a security for any purpose, as was the essential point in Horn v. Keteltas, 46 N. Y. 605, and other cases cited. Cooke's right to re-purchase was optional and created no obligation on his part, and the condition of the agreement not having been performed, Thompson acquired an absolute estate in the premises conveyed. Morrison v. Brand. Opinion by Larremore, J.

2. Error in recording does not affect the character of the instrument. The mere fact that the instruments were recorded as a mortgage could not impress that character upon them. 6 Cow. 617, cited. The object of the recording act was to protect subsequent purchasers and incumbrances, and an erroneous recording of a conveyance would not impair any existing rights between the parties. Ib.

3. Assignments for the benefit of creditors. — An assignment for the payment of all creditors is not void by reason of a provision, that the surplus money be returned to the assignors. 7 Cow. 735, cited. Although authority given to assignees to sell upon a reasonable credit according to their discretion, is a sufficient ground to invalidate an assignment as against creditors who choose to assail it for that cause. In the case at bar, no creditor having sought to impeach the assignment, and thirty-three years having elapsed since its execution, the presumption of law is in favor of its acceptance by all the creditors, and the proper payments to them under the trust. Ib.

CONTRACTS. See Tender; Master and Servant; Railroads; Re-insurance.

CREDITORS' BILL. See Trusts.
DAMAGES. See Tender; Master and Servant.
DELIVERY. See Landlord and Tenant.

DEMURRER. See Trusts.

DISMISSAL OF COMPLAINT.

Party walls: where some injury is shown complaint will not be entirely dismissed. - Appeal from judgment in favor of plaintiff. The judge below refused to grant a motion for the dismissal of the complaint. The motion was founded on the assumption that the partition wall, for the tearing down of which the action was brought, had not been shown to be on plaintiff's lot. Held, that as it was at least shown to have been a party wall, and the acts of the defendant in tearing it down had the effect to do some injury to plaintiff's building, although the extent of the damages was perhaps uncertain, the motion for an entire dismissal of the complaint was properly denied. The learned judge also reviews the evidence on the trial, and holds that defendant's assumption above stated was unwarranted, and plaintiff's right to enjoy this wall, as resting on her own land, was clearly established. Judgment affirmed. Kling v. Disch. Opinion by Robinson, J.

EVIDENCE.

Parol testimony: the rules governing its admission.Appeal from judgment in favor of plaintiff. The main question here is as to the exclusion below of parol evidence of the contents of a written agreement. Plaintiff admitted that she signed an agreement. Defendant