defendant's track which ran through a street in the city of Albany; it had so nearly stopped that, to a person in the rear, no motion was perceptible. Plaintiff's intestate attempted to cross the street in the rear of the train, when the motion of the train was accelerated, and she was run over and killed. The court declined to nonsuit plaintiff.

Held, no error; and that defendant was guilty of such negligence as rendered it liable for damages. Maginnis, admr., v. N. Y. C. & H. R. R. R. Co. Per curiam opinion.

2. The court, after having charged, in substance, that if the deceased saw the train approaching, or failed to look in order to see if it was coming, she was guilty of negligence, was asked to charge that if the deceased could have seen the approaching train, then her being on the track under the circumstances was conclusive evidence of contributory negligence. The court declined to charge that it was conclusive, but said it was high evidence.

Held, that the words "approaching train" simply referred to the train in question, and that the fact that deceased could have seen the train, without being able to discover that it was in motion, did not establish negligence, and that the charge was as favorable to defendant as could be justified. Ib.

3. The court charged that if they (defendant's employees) gave the train a sudden and undue impetus, it was evidence of negligence. Held, that this charge must be construed as having reference to the circumstances, i. e., the want of lights, etc., and as thus construed the charge was correct. Ib.

NEW YORK.

1. Claims against the city.-The relator commenced these proceedings for a writ of peremptory mandamus to compel the board of apportionment and audit of the city of New York to allow certain claims of relator, and for a mandamus to compel the comptroller of said city to pay said claims. The claims were for city advertising in the New York Argus, under resolution of the common council. The accounts had been audited and approved by the auditor of accounts, under section 37, chapter 137, Laws of 1870. These accounts were presented to the board of audit and apportionment established under chapter 375, Laws of 1872, with a request that said board should allow the same, which request was refused, and the city comptroller refused to pay the same.

Held, that such prior audit was not conclusive and did not dispense with the necessity of submitting the question of the liability of the city to the board, and therefore a mandamus to compel such allowance was properly refused. Also, held, that a mandamus would not lie against the city comptroller in such case, to compel him to pay or to provide for the payment of the claims. People ex rel. Brown v. Board of Apportionment and Audit; Same v. Green, comptroller, etc. Opinion by Andrews, J.

2. Chapter 9, Laws of 1872, amended by chapter 375, Laws of 1872, relating to the audit and payment of salaries and claims in the city of New York, superseded the provisions of the act of 1870 re-organizing the local government of said city (§ 37, ch. 137, Laws of 1870) as far as they relate to claims of the character provided for in the former act, and the latter act was thereby repealed pro tanto. The functions and powers of the board of apportionment and audit established by the act last mentioned are judicial in their nature. A claimant

proceeding under the statute is bound to submit his claim to the jurisdiction as defined by the statute, and cannot demand that the board should allow his claim without passing upon his right of payment. Ib.

SALE-CROSS-EXAMINATION.

1. This action was to recover the purchase price of a quantity of barley. The answer alleged that plaintiff represented it to be good, first quality, merchantable barley, and that defendants' agent relied upon this representation, and made the purchase; that the barley was not merchantable, of which fact plaintiff was cognizant.

Held, that an issue of fraud was not raised by this answer, as two necessary allegations to constitute fraud were omitted, i. e., that plaintiff made the representation with intent to defraud, and that defendants or their agent were deceived by it. Sefler v. Field et al. Opinion by Folger, J.

2. Questions upon cross-examination upon irrelevant subjects are matters in the sound discretion of the trial court, and the exercise of this discretion is not subject to review, save in cases of plain abuse and injustice. Ib.

WILL.

In an action for partition it appeared that the will of L., after giving to his wife a life estate in all his real estate, contained this devise, "From and after the decease and death of my beloved wife, I give and bequeath all my real estate * * *to all my children and to their heirs and assigns, to be equally divided, share and share alike; and should any of my children die and leave lawful heirs, such heirs to receive" the parent's portion. By a subsequent clause he declared that upon the death of his wife and a division of the estate, as provided, among his children, their shares should be an estate in fee, and they were empowered to convey, etc. L. had eleven children, who, with his wife, survived him. Three of the children afterward died intestate and without issue. A., a son, then died, without issue, leaving a will devising his interest in the real estate; thereafter the widow died.

Held, that the words "should any of my children die and leave lawful heirs," in the will of L., referred to a death during the lifetime of the testator; that the last clause referred to an absolute fee, which the children could only convey after the death of the widow; that the words "after" and "upon the death of my wife," did not make a contingency, but simply indicated when the estate of the children took effect in possession; that the children took a vested remainder, not subject to be defeated by their death prior to that of the widow, and that the devisee of A. was entitled to oneeighth of the real estate.

Also held, that if the words "should any of my children die," etc., could be construed to refer to a death after that of the testator and before that of his widow, it only applied to the case of a child dying leaving children, and did not affect A.'s devise, as no such contingency happened. Livingston et al. v. Greene et al. Opinion by Peckham, J.

The international judicial congress opened in Brussels on the 10th inst. Mr. Miles, of the United States, made a speech on the origin of international arbitration. David Dudley Field, of New York, was present. Letters from the King of Belgium and Count Sclopis were read.

DIGEST OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF RHODE ISLAND.*

COMMON CARRIERS.

1. The defendants, an express company in New York, received from the plaintiffs, April 10, 1861, certain goods to be sent to one C., at Rome, Georgia, and gave a receipt specifying that they were to be sent to the defendants' agency nearest their destination. They arrived at Savannah, Georgia, about the last of April when they were taken possession of by an officer of the (so-called) confederate government and placed in a bonded warehouse, and subsequently sold for non-payment of duties levied on them, after C. had been notified that they would be sold unless he paid the duties. Held, that the defendants had been deprived of the goods by the acts of public enemies, and consequently were not liable to the plaintiffs for their value. Salisbury v. Harnden Express Company.

2. Civil war defined and the beginning of the late rebellion determined. Ib.

3. The burden of proof is on a common carrier, after a loss is shown, to show that it was by one of the excepted perils for which carriers are not liable. The plaintiff may then show that the loss might have been avoided by reasonable skill and attention, but the burden of proof is on him to establish the negligence. Ib.

CONSTITUTIONAL LAW.

1. It is competent for the public, by a resolution of the general assembly, to allow an appeal to be taken against itself out of due time. State v. Dexter.

2. A resolution of the general assembly allowing an appeal to be taken from the doings of a town council laying out a highway, after the time allowed by the statute for taking the same has expired, is not an infringement of private rights in a case where no damages for the layout were awarded to any person except the appellant, and, there being no private right to be impaired by the appeal, it is competent for the general assembly to consent to it on behalf of the public, and such a resolution is not unconstitutional. Ib.

CRIMINAL PROCEEDINGS.

1. In any indictment, or other criminal proceeding, where there is more than one defendant, all the defendants taken collectively, and not individually, are entitled to challenge peremptorily one juror out of every six that are called for the trial of the cause. State v. Sutton and another.

2. The master and mate of a steamer were jointly indicted for manslaughter caused by a collision. It was in evidence that they were both in the pilot house before and at the time of the collision.

Held, that a motion to direct the jury to return a verdict of not guilty as to the mate, because he was subject to the orders of the master and must be presumed to have acted under his orders, was properly refused, as the commands of the master would not justify the mate in the commission of a criminal offense, or in keeping the vessel on a course that endangered life. Ib.

CRIMES AND PUNISHMENTS.

1. An indictment against S. charged that willfully and unlawfully he did have in his possession, with intent to sell and exchange, and did offer for sale and

From Mr. John F. Tobey, Reporter, and to appear in Vol. X, Rhode Island Reports.

exchange certain adulterated milk, to which water and other foreign substances had been added.

Held, that evidence of the possession of such adulterated milk by a servant of S., with intent to sell or exchange the same, was not sufficient to convict S. without other proof that the servant in so having said milk was acting for and in accordance with the will of his master, the said S. State v. Smith.

2. Evidence of a guilty intent and a guilty knowledge on the part of S. held not necessary to warrant a conviction, the intent of the act being that the seller of milk shall take upon himself the risk of knowing that the article he offers for sale is not adulterated. Ib.

EVIDENCE.

The testimony of a married woman that her husband did not leave her at any time with the magistrate when she acknowledged a mortgage deed, and that of the magistrate that the door to the next room, where the husband was, not being shut, he cannot testify that he was not within sight of his wife when she gave her acknowledgment, held, inadmissible to impeach the certificate of acknowledgment, which stated that she was examined privily and apart from her husband, in the absence of the proof of fraud on the part of the mortgagor or of the magistrate. Kavanagh v. Day and others. See Common Carriers, 3; Crimes and Punishments; Execution.

EXECUTION.

Where the land of one person is transferred to another under an execution, it must appear from the officer's return that he has proceeded according to the statute, and if it does not so appear the defect cannot be supplied by evidence aliunde. Wilcox v. Emerson.

FRAUD AND UNDUE INFLUENCE.

A conveyance obtained by one person from another, where advantage is taken of the latter's weakness or clouded or enfeebled faculties, will not be sustained by a court of equity. But it is not sufficient to suggest mere weakness or indiscretion of the party conveying, but it must be shown that there was fraud in the party contracting, or some undue means made use of to control that weakness. Anthony v. Hutchins.

1. A husband of a woman who has had children by her, has an estate in her land which entitles him to compensation during her life if her land is taken or condemned by a town council for a highway, and also to an appeal after her death from the doings of the town council in taking or condemning her land, if aggrieved thereby. Ross v. Town Council of North Providence.

2. The children and heirs at law of a woman whose land has been so taken or condemned and who dies before the expiration of the time allowed for an appeal, may appeal from the doings of the town council in respect of the land so taken or condemned, by virtue of chap. 176, § 15, of the Revised Statutes. Whether the right would not survive to them independently of the said statute, quære. Ib.

LAW OF BURIAL.

1. The Roman, Canon and English Ecclesiastical Law, stated. Pierce and wife v. Proprietors of Swan Point Cemetery and others.

2. Held, that while a dead body is not property in

the strict sense of the common law, it is a quasi property, over which the relatives of the deceased have rights which the courts will protect. Ib.

3. Held, that the persons having charge of a dead body hold it as a trust which a court of equity will regulate. Ib.

LEASE.

1. W. leased by instrument in writing certain premises to D. to hold for as long a time as a certain building then standing on the lessor's land next adjoining should remain in the same location, D. paying rent therefor half yearly. W. did not acknowledge the lease, and he afterward conveyed the demised premises to the plaintiffs.

Held, that the lease, inasmuch as it purported to pass an estate for a term exceeding one year, was not valid for the time therein named as between the plaintiffs and said D. on account of its not having been acknowledged as required by chap. 146 of the Revised Statutes. Thurber and others v. Dwyer.

2. Held, further, that although void as to the duration of the time thereof, it nevertheless regulated the terms of the tenancy in other respects, and made it a holding from year to year, which might be terminated by giving notice in writing at least three months prior to the expiring of the occupation year, as provided by chapter 205 of the statutes. Ib.

LIEN.

1. A tradesman's lien is not a general lien for balance of account, but a specific lien upon the identical property upon which labor or expense is bestowed, and only gives him a right to retain the property in his possession until the charges for the work and expenses upon the identical property are paid. Moulton et al. v. Greene & Sons.

2. W. & S. mortgaged two carriages to the plaintiffs and after the execution of the mortgage retained them in their possession and used them in their business. They afterward sent them for repairs to the defendants, who had claims against W. & S. for repairs on other carriages.

Held, that the mortgagees might reclaim them of the defendants upon the payment of the latter's charges for repairs done to them, and that the defendants had no lien thereon for repairs done to other carriages of W. & S. Ib.

3. Whether in this State the vendor of land has a lien upon the land sold after conveyance thereof, for the unpaid purchase-money, is doubtful. At all events there may be a waiver of the lien by the vendor either express or implied, and it will be considered as waived whenever any security is taken beyond the personal obligation of the vendor, unless there is an express agreement or proviso that the lien shall be retained. Perry and others v. Grant & Clark.

MORTGAGE.

A mortgage by deed under seal which recognizes notes which have been taken up by the mortgagee as notes which are over-due and unpaid and which the mortgagor is bound to pay, must be upheld both in law and equity. Lonsdale v. Fairbrother.

NATIONAL BANKRUPT ACT.

1. Under the provisions of the National Bankrupt Act a claimant may present to the assignee of the bankrupt a claim arising from a debt created by fraud and receive his dividend, but cannot prosecute it until the question of discharge is determined, but thereafter,

whether the bankrupt is discharged or not, it remains a valid claim against him, recoverable by any proper form of suit. Stokes & Leonard v. Mason.

2. The word debt as used in the act held to be synonymous with claim, and to embrace claims arising from debts created by fraud. Ib.

3. Plaintiffs brought trover against defendant for converting to his own use certain goods and chattels belonging to the plaintiffs. Defendant pleaded that he had obtained a discharge in bankruptcy and that plaintiffs' said claim was provable and proved under the proceedings in bankruptcy, and that they had received a dividend thereon. Plaintiffs replied pre

cludi non because the claim for recovery of which said action was brought was created by the fraud and embezzlement of the defendant.

Held, a good replication, and that defendant's demurrer to it must be overruled. Ib.

1. R. filed a bill in equity to have a third part of an estate set off to her. An order of partition was made directing that the estate be first divided into third parts and one of these set off to the complainant and those holding with her, and then a third part of this third part be set off to the complainant.

Held, that it was her right and the proper construction of the decree to have her third set off by itself in one tract, there being nothing to show that it was necessary to assign her a portion of different tracts of land. Richardson v. Armington and others.

2. Held, further, that it was not necessary to assign to each share an equal number of square feet, each party being entitled simply to his proportional share according to the value. Ib.

3. Held, further, that a partition in which many of the lots adjoined no public ways, and to which the commissioners had assigned no private ways, was objectionable and would not be sanctioned by the court. Ib.

POWERS.

B. conveyed certain real estate to C. S. B., "his heirs and assigns," to hold to him, "his heirs and assigns," upon certain trusts; among others "upon further trust, from time to time, as and when the said trustees shall deem it expedient, to sell or mortgage the whole or any part of said trust premises, to lay out and invest the moneys to arise from any sale or mortgage, under the preceding powers, in the name of the said trustees, in good stocks, or mortgages of real estate, or in the erection of suitable buildings on the premises belonging to said trust or on some part thereof, and, from time to time, to change, alter and vary such investments for others of a like nature, at his discretion."

Held, re-affirming a former opinion in the same case. that the power of sale and re-investment given C. S. B. by the above clause, was a special discretionary power,

and that it did not devolve upon a new trustee appointed by the court. Bailey, Trustee, et al. v. Burgess et al.

RAILROAD.

Where the charter of a railroad corporation requires it, if their road shall cross any highway, so to construct the same as not to impede and obstruct the safe and convenient use of said highway, and empowers them to raise or lower said highway, so that the railroad, if necessary, may conveniently pass under or over it, the crossing by it of a highway at the same level is not, in itself, a nuisance to the highway nor evidence of a nuisance. A court of equity will restrain said railroad corporation by injunction from such a crossing, only when it unreasonably impedes or obstructs the safe and convenient use of the highway. Town Council of Johnston v. Providence & Springfield Railroad Co.

TENDER.

1. A decree had been entered that a sale of land from L. to S. should be rescinded, in case S. should fail, neglect or refuse to pay a certain amount to L. within a certain time. Held, that when S. went to the residence of L. on the last day of the time so limited, for the purpose of paying said sum, and found that L. had left the State, and no one was there authorized to receive the money, there was no failure, neglect or refusal on the part of S. to pay it, within the meaning of the decree. Lawrence v. Staigg.

2. Held, further, that a readiness on the part of S. to pay the required sum in national bank notes, was not a readiness to make the payment required by the terms of the decree. Ib.

3. 8., with his counsel G., went to a bank on the last day so limited and presented a check, and G. requested the teller to give him the money in legal tender, meaning, as he afterward deposed, greenbacks, so called, or United States national bank notes, and, as he afterward stated, believed the request was complied with. S. and G. went with the money so received to the house of L., then out of the State, and tendered the money to his son I., who refused to receive it, saying he was not authorized to act for his father. I. deposed that he remarked it seemed to him that if they wished to make a valid tender it should be gold, and that G. replied that bank notes were good enough for him. The affidavit of the teller who cashed the check was not produced. Held, that the burden of proof being on the defendant, he had not satisfied the court that he had offered legal tender notes. Ib.

TOWN.

A town is not ordinarily bound to fence its roads, and where a highway connected with a private way, and there was a defect in the private way some 50 to 100 feet from the junction of the two ways, it was held, that the town was not liable for an accident happening to one who drove off by mistake upon the private way and was injured by reason of such defect, although there was no fence or other mark to show the deviation of the private way. Chapman v. Town Treasurer of Cumberland.

TRUSTS AND TRUSTEES.

1. S. held certain real estate upon trust under the will of H. to pay the rents and profits to W. during his life-time, and to convey it in fee simple to his children after his decease. W., during his life, assigned to S., for the benefit of his creditors, a building on said premises, not subject to the trusts of the will. It was afterward destroyed by fire, and S. built another in its

place, Held, that S. could not charge the estate with the money expended in building the same, but might remove it from the trust estate before conveying the latter to the children of W. Williams and another v. Smith.

2. Held, further, that S., who had, during the lifetime of W., made advances out of his own moneys for the support of W.'s infant child, should be allowed the benefit of a charge for the same upon the trust estate, it appearing that, under the circumstances of the case, the court would have permitted the charge if its sanction had been previously requested. Ib.

3. Held, further, that S. was entitled to be allowed out of the trust estate a claim for moneys paid to counsel employed to procure authority to sell a portion of the trust estate to raise the means for making improvements thereon and paying debts. Ib.

4. Complainants and defendant formed a partnership to set up a flour mill in W. and bought machinery for it. The project was afterward abandoned, and it was agreed that defendant should take the property at cost, provided he should use it in business in W. He gave up entering into business and sold the property, and rendered an account accounting for a sale of an engine and boiler at $4,000, whereas it appeared that he sold them to one P., with the understanding that P. should resell them and divide the profits with him, and P. afterward sold them for $5,250 and divided the profits. Held, that defendant held said property as trustee and agent of the complainants, and must account for the profits made on such sale. Matthewson et al. v. Allen.

5. L. and his wife P. agreed to a separation, and L. conveyed by deed certain real estate to one B. in trust for said P., her heirs, executors, administrators and assigns, and for her and their use and behoof forever. P. made a will in 1864, giving this property to her daughter H., and directing said trustee to convey to her. P. died in 1868, and B., in 1869, conveyed the real estate back to L. Held, that the trust must be considered as executed in the next taker after the death of P. to wit, H., and that the deed from B., the trustee, to L., conveyed nothing to the said L. Luther v. Haile.

BANKRUPTCY LAW.

NOTES OF RECENT DECISIONS.

DISMISSING PROCEEDINGS BY CONSENT.

1. Where the stockholders of a bankrupt railroad company purchase in good faith all the outstanding floating indebtedness of the company, except a few minor claims, and all the creditors, except those representing these few claims, desire such a result, they should be allowed to have the bankruptcy proceedings dismissed, on giving proper security for the payment of the objecting creditors. In re Indianapolis, Cincinnati & Lafayette R. R. Co., U. S. C. C., 8 N. B. R. 302. 2. It being evidently for the best interests of all parties, and the desire of a large majority, that the corporation be managed in the customary manner, the bankrupt court will not retain the custody and control of its property, to assist minor creditors in coercing their claims. Ib.

3. A bankrupt court has full equitable discretion, and can allow a case to be withdrawn, provided it is done without prejudice to the interests of any party. Ib.