tween questions which may not and those which may be submitted, and it is the latter only which fall within the category of disputable and referable questions according to my view of them. After the provisions respecting the preservation of peace which I have mentioned, the code proceeds to the subject of private international law, containing uniform provisions respecting private rights and the administration of justice. Here are grouped together regulations concerning personal capacity, social condition, the validity and interpretation of contracts, the effect of foreign marriages and divorces, the devolution of property at death, the administration of justice, procedure and evidence, as they apply to the persons and property of foreigners. The second general division relates to war, to its effect on the rights and duties of belligerents, allies, and neutrals. In respect to belligerents, there are regulations respecting the commencement, the conduct and the termination of war. The general design has been to confine war to persons in military service, and their operations against property to that which is public. Private war and public war upon private property are alike prohibited. The provisions of modern treaties forbidding the use of certain deadly weapons, and exempting hospital surgeons and nurses, are taken and extended. The bombardment of defenseless places is absolutely prohibited. The various chapters are entitled thus: Of those who may wage hostilities, against whom hostilities may be waged, the instruments and modes of hostilities, truce and armistice, medical and religious service, prisoners, hostilities against property, contraband of war, visitation, search and capture, blockade, prize, and the effect of war upon the obligations of nations and their members, upon intercourse, and the administration of justice. In respect of neutrals, the absolute right of a nation to remain neutral while others are at war is asserted in the strongest terms. England has often acted upon this principle, and never with greater effect than with respect to Belgium during the last great war. What is neutrality? What may a neutral nation do, what ought it to do, and what ought it not to do? These questions, and the three rules of the Treaty of Washington, are not considered. This is, in brief, a sketch of the present attempt to aid in the formation of an international code, suited to the civilizations of these nations, and to the Christianity of this nineteenth century of the Christian era. Since these outlines were prepared, two important steps have been taken toward the establishment of an international code. One was a conference held at Ghent on September 8 last, where an institute of national law was founded. This institution has undertaken to treat of several important subjects during the next year, and to meet again in August, 1874, at Geneva, for further action. The subjects to be treated are international arbitration, the three rules of the Treaty of Washington, and private international law. A committee of eight was also appointed to attend the forthcoming conference at Brussels. This conference, which will begin its session during the present week -on October 10- had its origin in a meeting held in New York on May 15, at which a resolution was passed that a meeting should be called for consultation upon the best method of preparing an international code and the most promising means of procuring its adoption. A committee of five was accordingly appointed, by whom the meeting, which is to be held on the 10th of the month, has been called. We hope to see representatives there not only

from America, but from every nation of Europe. The plan proposed is-first, to consider the expediency of an international code; and, if found expedient, how it should be prepared and proposed for adoption; and next, the question of arbitration for the settlement of international disputes. In short, the object of the Brussels conference is to take the preliminary steps for the establishment of a code of the law of nations, containing among its provisions a scheme of international arbitration. In this we shall have, I am sure, the sympathy of every lover of his race. Of all the calamities which afflict mankind war is one of the greatest. I do not say that it is the greatest of all, for I think that national degradation and slavery, or general corruption and the reign of fraud, are evils greater even than war. An oppressed people may justly rise against its oppressors. A nation attacked may and must defend itself. He who would not fight to the death in defense of his family or his country is not fit for this world. But in proportion as the defense is just the attack is unjust. There would be no occasion for the rising of an oppressed people if there were no oppression, and no need of defensive war if there were not first an aggressive war. And in proportion as you diminish the aggression you diminish the defense. In other words, if there were no aggressive and unjust war, there would be no war of defensethat is to say, no war at all. I would not detract in the least from the merits of those great captains who, fighting for the rights of their countrymen, have earned renown, nor would I dispute that there is in war frequent occasion for, as there has often been a display of, high heroic virtues. But the great men who display these virtues have themselves deplored the occasion and the evils of the war which they had been obliged to wage. Our own Washington was not only first in war, but first in peace, and first in the hearts of his countrymen; and it was the Duke of Wellington, if I remember right, who said that there was nothing worse than a battle gained, except a battle lost. I would not, indeed, discourage the cultivation of the heroic virtues or take away the opportunities for their exercise; but assuredly war is not the only school where they can be cultivated or exhibited. There will always be suffering enough in the world for the exercise of all the virtues. Does not the shipmaster who puts his ship about in a stormy sea at the signal of a shipwrecked brother, and stays by him through the dark and perilous night till the daylight comes, that he may save him at the risk of his own life-does not he exhibit as much heroism as any of those who fought at Waterloo? Did not the captain of the Northfleet who, the other day, calmly accepted death that he might save women and children, exhibit as much heroic virtue as any of the brave 600 who charged at Balaklava? Was Howard less a hero than Marlborough? Would you not as soon deserve the eulogy which Burke pronounced upon the former as the poem with which Addison celebrated the victory of the latter? Let him who would win renown through labor, endurance, and self-sacrifice go abroad into the world and make war upon the wrong with which it is filled. I am not sanguine enough to suppose that war is in our time to be put an end to altogether; but I do suppose that increased intercourse and the general progress of civilization have more and more inclined man to the ways of peace. The armor which now hangs useless in your baronial halls, the battlements that now serve for ornament in place of defense, the

walls of cities once formidable but now converted into promenades, are so many instances of successive steps in the progress from continual war to frequent and long-enduring peace. I do suppose, further, that by judicial international arrangements, the chances of war occurring may be lessened, and that when unfortunately it does occur its evils may be mitigated. Such is the aim of my co-workers and myself in our efforts for the amelioration and codification of the law of nations; such has been the object of the important work which I now place, with all its defects, in the library of this association."

JUDICIARY REFORM.

ADDRESS BY THE BAR ASSOCIATION. ASSOCIATION OF THE BAR OF THE CITY OF N. Y.,

No. 30 West Twenty-seventh St., V. Y., Oct. 24, 1873. }

To the voters of the State of New York: It is often said in reproach of the members of the bar that, knowing better than others the abuses of the judicial administration, they are wanting in zeal and courage for reform. This Association of more than six hundred members of the bar of the city, with its constitutional pledge to promote honor among its members and the due administration of justice for the people at large, has furnished some evidence of its fidelity to that pledge, and has done something to redeem the profession from merited reproach. When our efforts were needed to relieve you of those infamous judges whom judicial elections had placed in our seats of justice, we endeavored to do our duty; and now, when the whole power rests with you in respect to a greater and more permanent reform, it is equally our duty to furnish the aid of such advice as our observation, our experience, and our convictions suggest.

Composed, as this Association is, of members of all political parties, we shall speak and act upon this subject as we do upon others, without regard to partisan politics. For more than a quarter of a century the experiment of judicial elections has been on trial in this State. There have been great changes, great scandals, and great anxieties in respect of our judicial affairs during this period. Few have been satisfied, and the best citizens have felt humiliated and alarmed. The people of the State have now, for the first time, an opportunity of rejecting what we regard as a false and vicious method of selecting judges, and of substituting one of demonstrated safety and purity.

The constitutional convention of 1867-8, composed of delegates of all parties, with great unanimity advised that the electors should decide by ballot whether or not the judges and justices of the higher courts should hereafter be appointed.

A law of last winter provides the means of depositing ballots on this question, and voters have only to make sure of ballots in proper form to be able freely to express their opinion. The occasion is one of great importance, devolving a solemn duty upon every citizen having the right to vote.

It will not be denied that every community, under whatever form its government is organized and administered, has the deepest interest that the judges should be selected by the best methods, supported by the best influences, and strengthened by the highest and widest repute and respect that the resources of the people can command. A very little attention will show every one that the two methods, the one of electing and the other

of appointing judges, are essentially different, not only in the process of selecting and in the influences that surround judges after they are selected, but in the attitude of observance and respect held toward them by the people over whom they administer justice.

The only question, then, for a sensible, educated and public-spirited community, thus intrusted with a decision between methods so different and so diverse in operation and results is, which is the better of the two, which most accords with common sense, which is best approved by experience, which will wear the best in the serious trials, and amid the great passions and interests nursed in the bosom of this powerful and populous State? Our experience has left no doubt in our minds as to the answer which the general welfare demands. In our opinion no substantial benefit of any kind has come of our experiment of an elective judiciary, but, on the contrary, it has produced serious evils. The situation neither admits of nor does it require any extended argument from us; but as we appeal only to your candid and intelligent judgment, we ought to state briefly some reasons for our earnest opinions and our deep sense of your responsibility at this time.

1. When, in 1846, this State first gave its great sanction to judicial elections, they had never been tried by any civilized State of modern times, except for a few months by the State of Mississippi -a State hardly to be cited as our teacher. In the federal constitution, and in the constitutions of all the original States, the fathers of our republican system had incorporated an appointed judiciary as one of the highest safeguards of the new plan of government which they created. This State, therefore, is responsible for the first blow at the republican system, and for the judicial abuses which the new method of judicial elections may have brought upon those States of the Union which have followed our bad example.

2. The change to an elective system was not made because the people demanded it, or because the method of appointment in this State or elsewhere had developed any judicial abuses; for there was no such demand; and in the whole period prior to 1846, not a scandal had touched the character of a single New York judge in connection with his judicial functions; and, as stated without challenge by Chief Justice Daly in the convention of 1867, the change was made almost without debate and "not for any assigned cause, but purely upon a political theory." And while the scandals and feebleness of our elective system have become notorious, there has at all times been secured in Massachusetts, in New Jersey, and other States, and upon the federal bench, with very rare exceptions, as well as in England, by appointment, an irreproachable judiciary.

3. When the elective system was submitted to the people in 1846, there was almost no discussion before them, so that we are not concluded by any real judgment of those who have gone before us, but are free to act upon our own larger experience.

4. Judicial elections have, in our opinion, as a rule, been unfavorable to the selection of men of the greatest ability and attainments for the bench, and not less unfavorable to the prevalence of courage and fidelity in the discharge of judicial functions. The judicial canvass is in its very nature demoralizing, and the temptation is dangerously strong to make commitments unfavorable to justice. The judge who reaches the bench through a party contest at the polls, where one portion of the people support and the other oppose him, by no means finds it as easy to be impartial, nor do lawyers and suit

ors find it as easy to believe him impartial as if he had been appointed by the governor and confirmed by the senate.

5. Such selections have also been prejudicial to learning and character among lawyers. Lawyers of inferior capacity, aspiring to the bench, have been induced to intrigue for caucus and party influence, and thus the more honorable conditions of professional influence have been disparaged and neglected. Much in the same ratio in which inferior lawyers have been able to reach the bench, under the elective system, persons of small education and uncertain character have made their way at the bar. All honest men of every calling have a common interest with all that is honorable and worthy in the legal profession, in having only able and upright lawyers and judges intrusted with the administration of justice in the State.

6. The election of judges by giving more offices to be made the subject of bargainings and intrigues by the managers of popular elections has increased the number and power of those party mercenaries who live by the spoils of elections, and the same course has aggravated the excessive power of the mere party majority. 7. Judges are not selected like senators, assembly men, and city officers, to represent the property, the opinions, or the interests of the people of a locality, but they are the mere selection of the fittest members of a single learned profession for the purpose of interpreting and applying the laws of the State in the same sense and the same spirit throughout its borders, irrespective of all parties and all local interests, and all popular feelings. The fact that we vote for representatives is no reason why we should vote for judges, but quite the contrary. It is essential that a judge should be selected by a method which does not arouse personal prejudice or popular passion, which places him under no commitment to any locality, interest, or political party, which shall give all the people who may be suitors or prisoners before him the same power and participation in placing him upon the bench, and the same grounds of confidence in his impartiality. The method by appointment conforms to these conditions, but the method of local elections is fatal to all of them. It is unreasonable to claim that every citizen is as capable as the governor and the senators of judging, or can give the same time and attention to judging what particular lawyers have the learning and the qualities of mind and character which fit them to be judges.

8. But it is said that the people should retain the substantial control of the judicial as well as of the legislative and executive departments of their government. This means, if the suggestion is made in the interest of the people in whose name it is put forth, that the judiciary of a free State should derive its authority from the sovereign people, and be accountable to such sovereignty for the exercise of the authority thus derived.

Let this claim be conceded to the fullest extent, and observe how the system of appointment secures to the sovereignty of the people the desired control of selection and of accountability, much more faithfully and much more clearly than the system of election.

The first process is to select from the community the lawyers to be intrusted as judges with the interests of life, of liberty, of property, of public security, credit, and honor, which hang upon the administration of justice.

By the method of appointment the governor of the State, accredited by popular suffrage with the power of

the people, in this behalf, performs this first process, in a conspicuous place, before the eyes of the whole community, under the keen scrutiny of the profession of the law, who are to accept a superior, and in the presence of the calm observation of the judges on the bench, who are to welcome an equal, and then commits the approval or rejection of his choice to the senators, accredited also by the popular suffrages with the whole power of the people to accept or reject this selection. And until concurrence of these two representations of the power and will of the people in the fitness of the nominee for the great station for which he is proposed, this open, public, responsible, deliberate process of selection must be continued.

But how different the first process of picking out a judge as executed by the elective system. A secret, voluntary, unaccredited junta of one party - in the balancing and bargaining of competing interests and prejudices to be satisfied in the rough by the arrangement, whose fleeting record the strong sense of our people has stigmatized as a "slate "-writes down the name of the proposed judge. The caucus of the other party does the same thing. The labors of the several parties being thus completed, what share or function is left to the people by election? Have they power to say whom they will have for judge? Can they reject till a fit man is nominated? By no means! They can only say which of the party candidates they prefer, and they practically do not pass on this question even, but only on which party, in its general drift, is preferred for the lead and guidance of the State.

The change now proposed, therefore, is not an attempt to deprive the people of their just prerogative; but the question is simply whether the people shall exercise their prerogative directly and through an unwise method, or indirectly, but more wisely, through their own executive and senate.

A little reflection, also, will show that the power of impeachment, or removal by address, is much more effective when exercised against appointed judges than when directed against those elected. Let our recent experience teach a people that loves liberty and desires justice not to shorten the arm of impeachment or enfeeble its salutary power.

9. It has been one of the results of our judicial system, responding to party majorities and local influences, that our decisions have wanted consistency and our whole judicial system has been fluctuating and feeble. In the period during which Massachusetts has had only eighteen supreme court judges, or judicial terms, and all England has had only forty-one in her three higher law courts, New York has had one hundred and sixty judges, or judicial terms, in her supreme court, and one hundred and twenty in her court of appeals. And our excessive appeals and overrulings and reversals of decisions have been much in the same ratio as compared with those of England and Massachusetts. It is the people who bear the expense and the afflictions of such useless litigations, and not the lawyers to whom it gives employment, who have the greater need of a reform.

10. We think it demonstrable that the country districts have the same ultimate interest with the city in arresting those corrupting influences of judicial elections which, being first and most developed in the great city, are, therefore, most within the public observation of city residents. But it is hardly possible that intelligent residents of the country districts should suppose that causes which undermine the integrity and vigor of

the tribunals of justice in the cities can long continue without demoralizing the honor of the entire community. If not arrested here, such causes are as sure as the cholera or the small-pox, which cities are the first to breed, to sweep the entire State. Every honest man and virtuous woman in the State ought to be admonished of the feebleness and perils of our administration of criminal justice, by the fearful fact that year by year this city of one million of people has more crime committed within its borders than London with three millions of people. Against less than seventy-three thousand criminal arrests in London each year there are more than seventy-five thousand in New York city; and in London criminal trials are far more prompt, and the proportion tried and convicted is far greater than here. The administration of criminal justice all over the State is much less efficient than it was prior to 1846. In the country, as well as in the city, crimes have increased in greater ratio than population since 1846, and the criminal classes cast their votes for judicial officers upon pledges of gentle dealing with offenders. We believe these damning facts are not due to the greater vice or lawlessness of our people, or to any feebleness of republican institutions, but that they are, in a great measure, the legitimate result of our false and feeble judicial system. This system, to the knowledge of all of us, calls to the polls every vicious and criminal voter by all the direct interest he feels in his own safety for the past, and by his hopes of impunity for the future. It appeals to the honest and virtuous voter only by a remote interest, or a mere disinterested sense of duty. It combines together the selfish voters, by all the strength of a direct common interest and peril, to sustain the most unscrupulous candidate; while the honest and patriotic voters, affiliated with opposing parties, are separated by party ties and prejudices, and all cooperation based on the merits of the judicial candidates is greatly embarrassed, if not defeated. Those who are the natural supporters of the best judicial candidate are marshaled in hostile array, about issues which are utterly foreign to all the qualifications of a judge. Such are the natural results of applying the method of election to officers to whom it is not adapted, and to which the authors of our republican system never intended it should be applied.

In the presence of such facts and tendencies-convinced as we are by our experience that the elective system applied to judges has neither inspired nor strengthened any thing good among the people, but that it has lowered the dignity of the bench, weakened the force of law, impaired public confidence in the administration of justice, made criminals more numerous and bold, and life and character and property less safe - we cannot refrain from this appeal; and we earnestly call upon all the voters of this State to cast their ballots, irrespective of all party considerations, for a return to that method of judicial appointments which the experience of the States, the nation, and the mother country has alike approved. By order of the Association.

WM. M. EVARTS, President.

A. R. MACDONOUGH, Secretary.

Hon. James C. Smith, who was appointed last spring to fill a vacancy on the bench of the supreme court of this State, has been nominated for that office by the republicans of the eighth district.

COURT OF APPEALS ABSTRACT.

AGENCY.

Action to recover the purchase price of a quantity of hops alleged to have been sold to defendant. The contract for the purchase was made by V., who represented himself to be the agent of defendant. He was in fact the agent of a firm composed of defendant and G. W., and had no authority to act for defendant individually. Defendant moved for a nonsuit on the ground of the non-joinder of the partner. The motion was denied.

Held, that defendant was not individually liable for the purchase price of the hops. An agency cannot be created by the representations of an assumed agent. Marvin, Adm'x, etc., v. Wilber. Opinion by Peckham, J.

AGREEMENT.

Between attorneys as to suit pending.-This was an action brought by the attorney-general under the provisions of the act authorizing him to institute suits for the purpose of annulling certain contracts for canal repairs (ch. 869, Laws of 1868). After the trial upon demurrer to the complaint, and a decision in favor of the defendants, it was verbally agreed between the attorney-general and defendants' attorney, in consideration of defendants' waiving all claim for costs, that no further proceedings in the action should be taken, but the same should be considered as finally disposed of. In consequence of the agreement, and relying upon it, defendants' counsel omitted to take any further steps in the action, and notified his client that it was finally disposed of. About two years after, the successor to the attorney-general entered an order upon the decision sustaining the demurrer and appealed therefrom to the general term, which appeal was on motion dismissed.

Held, no error (Grover and Peckham, JJ., dissenting). That the verbal agreement having been acted upon by the parties' attorneys, and defendant having been prevented thereby from taking the usual steps to cut off the right of appeal, the agreement should be deemed as effectual as if in writing, and the general term had the right in its discretion to dismiss the appeal. People of the State of New York v. Stephens et al. Opinion by Rapallo, J.

CONTRACT.

Action to recover for certain "granite heads" alleged to have been sold and delivered to defendant by plaintiff. It appeared that K. contracted to build certain sewers for defendant. In the contract it was provided that, in case of delay in the performance of the work, that defendant could take possession and complete the same, using such materials as were found upon the line of the work. Plaintiff delivered stones for "culvert heads" upon the line of the work, under a contract with K., by which the former was to receive his pay after the stones were set, inspected and approved. After such delivery and before a portion of the stones were set, K. abandoned the work and the city assumed and completed it, and with plaintiff's knowledge used said stones, which were accepted and approved. Evidence was given tending to show that plaintiff knew of the conditions of K.'s contract, and it did not appear that he asserted any claim to the stones, or that he objected to their being taken and used.

Held, that the mere taking by defendant was not a recognition of the ownership of plaintiff, so as to raise an implied promise to pay. That if plaintiff, knowing the conditions of the contract, stood by and saw de

fendant acting under it, and asserted no claim or made no objection to such taking and use, he was estopped from claiming the property as against defendant, and could not recover, and that a refusal of the court so to charge was error. Hogan v. City of Brooklyn. Opinion by Allen, J.

Also held, that in the exclusion of evidence of the acts of the city officials on the part of defendant, in the absence of plaintiff, in accepting the stones, was error. Such acceptance was on the contract with K., and plaintiff's absence or presence was immaterial.

CONVERSION.

Sale of stocks pledged.- Action upon a promissory note. The complaint alleged a sale of certain stocks pledged as security and the application of the proceeds upon the note. The answer admitted the sale, but that it was tortious, because made without a previous demand and notice, and claimed that plaintiff was liable for conversion. Plaintiff, upon the trial, proved without objection that the stocks were sold at auction, and bid off by himself; the sale was made without notice. The court held that there was no conversion, and gave judgment for the amount of the note.

Held, no error. That defendant not having objected upon the trial that plaintiff was precluded from showing there was no sale had waived his right, and the court was justified in determining the case irrespective of the pleadings. That the sale was voidable at defendant's election, and he having elected to treat it as illegal, there was no sale and therefore no conversion. Bryan, Ex'x, etc., v. Baldwin. Opinion by Grover, J.

FRAUD.

Proof of to invalidate a sale.-A creditor of a vendor who seeks to invalidate a sale upon the ground of fraud must prove facts from which a legitimate inference of fraudulent intent can be drawn. Evidence simply juştifying a suspicion is not sufficient, nor is the vendor's fraudulent intent sufficient. There must be proof that the vendee was also implicated in the fraud, and proof of inadequacy of price alone does not accomplish this. Jaeger v. Kelley, Sheriff, etc. Opinion by Church, C. J.

INDICTMENT.

Variance.- Plaintiff in error was indicted for forging and altering a check, which was set forth in the indictment. Upon the check as given in evidence upon the trial was the indorsement of the payees named therein, and a revenue stamp, neither of which were set forth in the description of the check contained in the indictment. The counsel for the prisoner requested the court to direct the jury to acquit the prisoner on the ground of a variance between the indictment and the proof. The court refused the request, and counsel excepted.

Held, that the omission did not constitute a variance. Neither the indorsement nor revenue stamp formed a part of the check, which is a complete instrument of itself. Miller v. The People. Opinion by Rapallo, J.

INSURANCE.

Agent.-Action to compel defendant to account for moneys alleged to have been received by him as agent, upon a policy of insurance upon the life of D., plaintiff's intestate. Said D. had agreed with the company in which he was insured for the surrender of his policy and a return to him of his premium notes, which notes had been sent to the company's agent to be delivered up. D. gave his policy to defendant as his agent, and instructed him to surrender the same for cancellation.

Defendant surrendered the policy, but before the notes had been canceled or surrendered applied to have the policy renewed for the benefit of himself and G. D. D. The agent thereupon returned the notes to the company with a statement that D. wished to renew, and that defendant and G. D. D. were to help him. A renewal policy was then issued for the benefit of defendant and G. D. D. The premiums were thereafter paid by defendant and G. D. D., as were also D.'s premium notes, less the amount of dividends credited thereon. G. D. D. assigned his interest, and upon the death of D. defendant collected the amount of the policy.

Held (Grover, J., dissenting), that by accepting the renewal policy defendant must be deemed to have adopted the instrumentalities by which it was obtained, and was bound by the representations of the agent to the company, that aside from this defendant, while acting as agent, having acquired, by departing from his instructions, a benefit, a part of the consideration for which proceeded from his principal, plaintiff had a right to adopt his acts, and to call him to account for the profits derived from the transaction.

It seems that if defendant had asked and obtained the consent of his principal, in the absence of collusion or fraud, defendant might have been discharged from his obligations as agent, and might have acquired a beneficial interest in the policy. Dutton, Adm'x, etc., v. Willner. Opinion by Rapallo, J.

PRACTICE.

Pleadings counter-claim in answer.- Action upon two promissory notes. The defendant's answer alleged substantially that the notes were given in part payment of a farm sold to defendant by plaintiff's testator; that defendant was induced to purchase by means of false and fraudulent representations, as to the territorial extent of the farm; that the land falsely represented to form a part of the farm, would have enhanced its value $5,000, and defendant had sustained damage to that amount. No reply was interposed, and upon the trial defendant moved for judgment upon the pleadings. No objection was made of want of proof of damages. Judgment was directed for plaintiff. Held, error; that the answer set up matter constituting a counterclaim, which plaintiff admitted by the failure to reply. That there having been no objection, and the decision of the court not being placed on the ground of want of proof of damages, it must be deemed to have decided that the answer did not set forth a counter-claim (Church, Ch. J., and Grover, J., dissenting). The rule applicable to motions for a nonsuit, which requires the defendant to specify objections, which, if specified, could be obviated by proof, if equally applicable where the defendant becomes the actor in seeking to enforce a counter-claim. Isham, Ex'rix, etc. v. Davidson. Opinion by Rapallo, J.

STATUTE OF LIMITATIONS.

Married women.- Action upon an award in favor of plaintiff's testatrix, made and published August 31, 1857, by which defendant was decreed to pay her $2,000, and interest from May 1, 1854. The testatrix was a married woman, and so continued until her death, February 4, 1862. This action was commenced February 11, 1867. The defense was the statute of limitations. Held, that the action was barred. That under the provisions of the Code, limiting the time for the commencment of actions, as amended in 1851, the disability of marriage declared thereby, which pre