moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same." Whatever the present applicants for naturalization may have supposed in regard to the law prior to 1862, they now know that the law condemns their conduct. If they have any desire ever again to become the law-abiding men which the court presumes they once were, let them at once begin to obey the laws,-laws in harmony with the principles and practices of all civilized nations; let them no longer listen to the precepts, no longer imitate the examples, of false teachers, who would have them believe that the man who turns away from the wife of his youth, and takes to his bed and board and bosom one or more young concubines, does a deed of piety-a deed, however, which reminds civilized men of the filial piety which prevails among certain African tribes, where children rid themselves of their aged parents by knocking them on the head with a club. OBITER DICTA. Why is a grant of real estate more valid if made on Sunday? Because the better the day, the better the deed. "The prisoner has a very smooth countenance." "Yes, he was ironed just before he was brought in. That accounts for it." At the last term of one of the circuit courts of Michigan, a young scamp was being tried on an indictment for making a brutal assault on his step-mother. It appeared from the evidence, that the assault was made while the woman was cutting cucumbers, and the defense was, that she had threatened to "cut him open" with the knife she was using -a dilapidated old case-knife. The prisoner was defended by a rather grandiloquent young attorney, who got off the following handsome burst: "Yes, gentlemen of the jury, what else could my client do-strong and vigorous though he be-when she rushed at him brandishing that knife in a flourishing condition?" The rest of the "flight" was lost in "the scene that ensued." Cooper, the novelist, while pretending to favor an observance of the law, did not like the lawyers, and regarded every statute as a device of their body designed for the perversion of justice. The second United States bankrupt act, which, by the way, was extremely favorable to debtors, was obnoxious to him. He expressed his indignation against it in a tale, entitled "The Redskins," and therein relates, as an example of its benefits, the following story: "It is the old story of Faust, in which a young spendthrift (a lawyer, of course) sells himself, soul and body, to the devil. On a certain evening, as he is making merry with a set of wild companions, his creditor arrives, and insisting on seeing the master, is admitted by the servant. He comes on, club-footed, and behorned, as usual, and betailed, too, I believe; but Tom is not to be scared by trifies. He insists on his guest's being seated, on his taking a glass of wine, and then on Dick's finishing his song. But, though the rest of the company had signed no bonds to Satan they had certain outstanding book-debts, which made them excessively uncomfortable; and, the odor of brimstone being rather strong, Tom arose, approached his guest, and desired to know the nature of the particular business he had mentioned to his servant. This bond, sir!' said Satan significantly. 'This bond! What of it, pray? It seems all right.' 'Is not that your signature?' 'I admit it!' 'Signed in your blood?' 'A conceit of your own; I told you at the time that ink was just as good in law.' 'It is past due seven minutes and fourteen seconds?' 'So it is, I declare; but what of that?' 'I demand payment!' 'Nonsense! no one thinks of paying now-a-days. Why, even Pennsyl vania and Maryland don't pay.' 'I insist on payment!' 'Oh, you do, do you? Tom draws a paper from his pocket and adds, magnificently, 'There, then, if you're so urgent there is a discharge under the new bankrupt law, signed Smith Thompson.' This knocked the devil into a cocked hat at once." GENERAL TERM ABSTRACT. FIRST DEPARTMENT. NEW YORK SUPREME COURT-OPINIONS DELIVERED MARCH 2, 1871. ACCOUNT STATED. 1. Appeal from judgment in favor of defendants. Full accounts were rendered by defendants to plaintiff from time to time during the course of their joint business.. All such accounts had been rendered before February, 1865, when, after a discussion as to one item, the account was stated and settled. This was accepted until the fall of 1867, two and a half years thereafter. Held, that it was then too late to open the account, except for fraud, error or mistake, and none such is proven as found by the referee. Judgment affirmed. Burke v. Isham et al. Opinion by G. G. Barnard, J. 2. The defendants had introduced a new member into their firm; the dealings of plaintiff with old firm had been carried into the books of the new firm. Held, that this fact gave the new firm no right as against plaintiff. Plaintiff has sought to open the account with the old firm and has failed. The old firm may in this action use their counterclaim, and plaintiff has his demand against the new firm for the entire claim. Ib. CONTRACTS. See Conversion. CONVERSION. 1. Action to recover the value of certain stock deposited with and alleged to have been converted by the defendant, a broker of the plaintiff. The court below directed a verdict for the plaintiff. Appeal from judgment entered thereon. The version of the contract was differently stated by the parties in their evidence on the trial. According to plaintiff's evidence, the pledge of stock was merely made to secure a margin. According to defendant's evidence, defendant required a margin of ten per cent, which was to be paid in money, but, that, after the first purchase had been made, plaintiff applied to him and inquired if he could not use the stock instead of the money, and defendant consented to take it. Held, that if plaintiff's statement is correct, the case would come within the rule laid down in Markham v. Jordan, 41 N. Y. 236, and the stock could not be used by broker. If defendant's version of the contract is the true one, it was clearly the intent of the parties that defendant should use the stock as he might lawfully have used the money, and that for such a cause defendant would not be liable in an action for tort. That as the evidence was contradictory, it came within the province of the jury to decide which was the contract between the parties, and the judge could not take that question from the jury. Verdict set aside. and new trial ordered. Lawrence v. Maxwell. Opinion by Ingraham, P J. Cardozo, J., dissentiente. 2. Although, by the contract as stated by defendant ne had a right to use this stock in the same manner as the cash if that had been deposited, he was bound by his contract to return the stock whenever plaintiff tendered the amount due defendant for which it had been pledged. When the tender was made, it was the duty of defendant at once, or within a reasonable time, to have restored the stock. This, he failed to do, and the plaintiff was entitled to recover on the contract its value; but if defendant, by the contract, had the right to use the stock by hypothecation, there was no tort committed by the omission to return it, and the plaintiff's remedy was on the contract, and not for the conversion. Ib. 3. The defendant offered to show that before this transaction, shares had been deposited with the defendant, and he had hypothecated the same, and that such use of the stock was communicated to plaintiff, who made no objection thereto, should have been admitted as showing the construction of the contract by both parties, and was properly for the consideration of the jury in determining what the terms of the contract were. Ib. 4. Cardozo, J. (dissentiente) holds: That the transaction made defendant a pledgee of the stock, and evidence of custom is not admissible to change his liabilities and duties as such. Markham v. Jordan, supra, is to be followed. The amount which the plaintiff was indebted to the defendant upon the transactions upon which the stock was pledged, should be deducted from the recovery which plaintiff would otherwise have been entitled to. (Leslie v. Hoffman, Ed. Select Cases, 475.) Ib. EVIDENCE. See Conversion. MURDER. The motion for a new trial in the case of John Thomas, colored, convicted in the court of oyer and terminer, before Judge Cardozo, of the murder of Walter Johnson, also colored, which was argued before Judges Ingraham and Barnard, has been denied. Presiding Justice Ingraham gave the opinion of the court, as follows: The indictment in this case was for murder in the first degree. The offense was set out in the usual form, but in the commencement of the indictment, in averring that the prisoner made an assault upon deceased, the word which should have been aforethought was printed aforetnought, so as to read, "of his malice aforetnought did make an assault, etc." In the rest of the indictment the allegations of firing the pistol, of wounding, and of committing the murder, are properly charged to have been done with malice aforethought. This error is now urged by the counsel for the prisoner as a ground for the reversal of the judgment. He From whatever cause it may have originated, the error is immaterial. If the word had been omitted, so as to read that the prisoner willfully, feloniously, and of his malice, did make an assault, etc., it would have been sufficient, as the malice aforethought is sufficiently charged in the subsequent parts of the indictment to make out the offense of murder in the first degree, without that word as applied to the first assault. In selecting the jury, one juror was challenged on behalf of the people. was asked: "Have you any conscientious scruples against finding a verdict of guilty in a case where the punishment is death and the evidence would justify such To which he replied, "I have." verdict?" On crossexamination, in answer to a question, "If the evidence justifled you in finding a verdict of murder, would you feel it your duty under the law to so find?" he said, "I would do my duty, but it would go against my feelings;" and, on further examination, he said he did not wish to act as a juror, and was opposed to capital punishment. The juror was rejected. It is evident from the whole examination that the juror was opposed to capital punishment, and that such views exercised a sufficient influence to cause a bias in the mind of the juror against the law inflicting death. Had the objection been that the juror was prejudiced against the prisoner, but that, notwithstanding, he would do his duty and acquit the prisoner if the evidence warrants it, such a statement would not be enough to destroy the bias in the juror's mind against the prisoner, and he could not be qualified to serve. What the juror meant by doing his duty does not appear; but, conceding that he intended to say he would find a verdict of guilty if the evidence warranted it, still it is apparent that, in coming to a conclusion on such evidence, he would be influenced by the bias existing in his mind against capital punish ment, and would require stronger evidence to warrant such conviction than would be required by ordinary jurors. The third ground on which the prisoner's counsel appeals is, that the judge refused to charge the jury "that if they should find from the evidence that the homicide was done, not from a premeditated design to effect the death of the deceased, nor in a heat of passion, nor under such circumstances as would make it justifiable homicide, then the jury will find the defendant guilty of murder in the second degree." In Fitzgerald v. The People, 37 N. Y. 413, the construction of this statute was settled by the court of appeals. It was then held that murder in the second degree was the killing when perpetrated without any design to effect death by a person engaged in the commission of any felony other than that of arson in the first degree. In this definition of murder in the second degree all the judges concurred. It has been repeatedly held, that by the term "felony" used in this section is meant some other criminal act than the homicide to constitute the crime of murder in the second degree. I think there was no error in refusing to instruct the jury as requested. The remaining point made on behalf of the prisoner is, that the verdict is not warranted by the evidence. It would be a sufficient answer to say that in a case tried in the oyer and terminer no such objection can be presented on appeal. Our power to interfere with the judgment appealed from is limited to errors of law occurring in the court below. In this respect a difference exists on an appeal from the judgment if rendered in the court of general sessions. In such appeals the statute requires the appellate court to review the evidence and to grant a new trial if the verdict is against evidence, or if justice requires that a new trial should be granted. We will add, however, that even if we had the power to revise the finding of the jury upon the facts, the evidence is sufficient to sustain such finding. The evidence shows that before the parties met, the prisoner was around and inquiring for the deceased; that he uttered threats against him; that when they met, the prisoner used threatening language to the deceased; that the deceased told him that he had been following him the previous night with a knife, and asked what he meant to do; that the prisoner fired the pistol and then disappeared. If this evidence is true, there was sufficient to warrant the jury in finding the intent to kill, and that the homicide was neither excusable nor justifiable. The case of Purcell, referred to by the counsel, decided at this term, was distinguished from the present case by the fact, that the parties met unexpectedly, without any previous knowledge of the meeting, and that the whole affray was sudden and unpremeditated, and rendered it dimcult to find any sufficient evidence from which a premeditated homicide could be found to have been perpetrated. We find nothing in the present case to justify a reversal of the judgment. - Judgment affirmed. PARTNERSHIP. See Conversion. NEW YORK SUPERIOR COURT-OPINION DELIVERED MARCH 4, 1871. Right of appeal: when waived. -On July 9, 1870, an order was made and entered at special term, allowing an amendment of defendant's answer upon payment by the defendant to the plaintiff of ten dollars, costs of opposing the motion, and on the 12th of July, a copy of the order and amended answer was duly served on and received by the plaintiff's attorney, and the ten dollars costs were also paid to and received by him. On the same day, the plaintiff's attorney served the defendant's attorney with a reply to the new matter contained in the amended answer. Thereupon the trial of the action was proceeded with before a referee, who had been previously appointed, and the case was finally submitted for his decision, on July 27th. Within the time allowed by law, the plaintiff's attorney served a notice of appeal from the order upon defendant's attorney, but neglected to serve a like notice upon the clerk of the court. A motion was made to dismiss the appeal on two grounds: 1. That the plaintiff had waived the right to appeal by accepting the costs of the motion. 2. The failure to serve the notice of appeal upon the clerk of the court. It was held, that the appeal must be dismissed on the first ground. Taussig et al. v. Hart. Opinions by Monell and McCunn, JJ. THIRD DEPARTMENT. DECEMBER TERM. COMMISSION TO TAKE EVIDENCE. 1. Validity of: practice.- In the case of a commission taken in Wisconsin offered in evidence and objected to, as a nullity without signature of the clerk, and that the direction omits to state the manner in which it shall be returned, and that there was no sufficient return by the commissioner. It having been stipulated that plaintiff's attorney direct upon the back of said commission the manner in which it shall be returned, and that the commission and deposition be returned by mail to the clerk, plaintiff's attorney directed the commission to be returned to the county clerk, and the court rejected it because he failed to comply with the stipulation, by directing it should be returned by mail. It appeared that the commission had in fact been returned by mail, in pursuance of the stipulation. Held, that the objections raised are purely technical, and unless they can be sustained by the application of strict rules, cannot be upheld. Goodyear v. Vosburgh. Opinion by Miller, P. J. 2. Also held, that the commission was issued by the authority of the court, and the judge's signature was sufficient. It would have been more in accordance with the forms in the books had the clerk signed it; but this is purely formal, and not essential to the validity of the commission. Ib. 3. Also held, that the statute has been substantially complied with, and in such cases the party objecting should not be permitted upon a trial in court to exclude this species of evidence, except upon the clearest grounds and something beyond a mere irregularity. Ib. 4. Also held, that objections of this character, which do not affect the merits, and, at most, are mere irregularities, would more properly be presented on motion at special term. New trial, with costs to abide the event. CONTRACT. 1. Rescission of: release.—This is an appeal from judgment entered in favor of the plaintiff. The note upon which this action was brought was deposited as an escrow to be delivered only upon the performance of certain condi tions, and was obtained upon a statement of the plaintiff which was untrue. Held, that ordinarily it would be considered that there was no valid delivery of the note, and that it was not collectible until the conditions upon which its delivery depended had been performed. This general principle, that the note is not yet due, and that the party who obtained possession of it fraudulently can make no use of it, is a sound one, but is sub. ject to qualifications which are controlling, when a party claims the benefit of a contract, to carry out which, in part, the note was given. The entire benefit of the contract cannot be claimed and the obligation to pay repudiated, even if the condition has not been fulfilled. He cannot affirm so much as is in his favor and repudiate the residue. He must either affirm in toto or rescind in toto. Lindsey v. Ferguson et al. Opinion by Miller, P. J. 2. The defendant, by retaining possession and exercising control over the property, has waived the performance of the conditions precedent, and is now estopped from insisting that they should be enforced before the delivery of the note. Ib. 3. The receipt introduced in evidence was not a technical release which discharged the joint debtors. Judgment affirmed with costs. Ib. EXECUTION. 1. Liability of execution creditor for wrong levy. - This is an appeal from judgment at circuit, to which exceptions were made and ordered to be first heard at general term. In April, 1866, defendants sent to Tomlinson, an attorney, for collection, a claim against one Dunn, upon which judgment was entered, and an execution issued to plaintiff, who was sheriff, and who levied on a quantity of cigars as the property of Dunn. Dunn's brother sued plaintiff for the cigars, and plaintiff was defended by Tomlinson; a judgment was recovered against him, and an execution issued, which he paid, and then brought this action against the defendants. Plaintiff claimed that the cigars were levied on by direction of Tomlinson, and on his promise that defendants would indemnify him, that Tomlinson was authorized by defendants to indemnify him, and that defendants ratified Tomlinson's act after he was beaten in the action by Dunn's brother. The authority and ratification are denied by the defendants. Held, that the judge did not err in refusing to restrict plaintiff's recovery to the costs of the action, in the case of Dunn's brother, against him, on the ground that he did not show what the cigars sold for, and had failed to show any deficiency. Plaintiff was entitled to recover, upon showing the payment and agreement to indemnify, without showing a sale of the property levied upon. Howell et al. v. Christy et al Opinion by Miller, P. J. 2. There is no legal principle which sanctions the Interposition of a defense on the ground of negligence of the attorney, in connection with the plaintiff, in conducting this suit. If the attorney was guilty of negligence, he is individually and alone responsible. What the plaintiff did, was for the defendants, whose business it was to conduct the defense personally, or by attorney, after notice had been given them. They were the parties actually interested. What plaintiff did was of a gratuitous character, and defendants are bound by the result, in the absence of fraud or collusion between the prosecuting party and him whom defendants were bound to defend. Ib. 3. The judge, in his charge, speaks of a ratification without defining it, and without, in any way, saying the ratification must be made with fuil knowledge of the facts affecting the transaction. He left out an important and material part, and, in not charging as requested, and omitting to state the principle upon which a ratification of prior acts is founded, he erred. New trial, with costs to abide the event. Ib. PARTIES. 3. Joinder of: partners. - This is an action to recover the The contract was price of some hops sold defendant. made by the agent of D. Wilber & Son, who represented that he was purchasing the hops for defendant, D. Wilber. The court refused to nonsuit the plaintiff for the omission to join Geo. I. Wilber as a defendant. Held, that the court was right in charging the jury, that, if plaintiff understood from the agent that he was acting for the defendant, and that no notice was given to the contrary before the hops were received and accepted, plaintiff could recover. If the copartnership were liable, defendant was also liable, for, when the creditor, at the time the contract is made, is ignorant that the debtor had a partner, whose name is not disclosed, he has the option, on discovering the partnership, of suing the debtor separately, or of joining the dormant partner. Marvin v. Wilber. Opinion by Miller, P. J. 2. To the plaintiff, George I. Wilber was entirely unknown, the same as a secret or dormant partner; he had a right to treat him as such, and was not bound to make him a defendant, Judgment in favor of plaintiff affirmed, with costs. Ib. SPECIFIC PERFORMANCE. 1. In an action brought to compel the specific performance of a contract for the sale of land,-Held, that payment made within a reasonable time, in connection with a parol agreement and accompanied by other acts which cannot be recalled, so as to place the party in the same situation he was in before, will take a parol agreement out of the statute of frauds, provided the agreement is made out by clear and satisfactory proof, and the acts of performance are of the identical contract. Also, held, that the acts performed by those under whom plaintiffs claim were unequivocal and significant, and resulting from the agreement, that plaintiff could not recover for the money paid out or for improvements, and would lose all unless a specific performance was decreed. Richmond et al. v. Foote. Opinion by Miller, P. J. 2. There was a recognition of the contract and an acquiescence in it. It was allowed to rest undisturbed, without any action by either party, or notice of an extended forfeiture, and as no time of payment was specified, the objection that too long a time has elapsed is no obstacle to the plaintiff's claim in this action. Ib. 3. Order of special term for a specific performance of the contract affirmed. Ib. STREETS. 1. Liability of railroad company occupying street under a license. One Purdy, having been thrown from a sleigh and injured, by the accumulation of snow in a street in the city of Troy, sued the city for damages, and recovered. This action is brought by the city to recover the amount of the judgment from the defendants, by whose negligeace it is claimed the injury was occasioned. In 1860 an ordinance was passed by the common council of Troy, granting leave to the defendant to construct a road through certain streets in that city, upon their observing certain conditions and assuming the responsibilities imposed thereby. Defendant was to keep the pavements between the tracks and eighteen inches outside of each track in repair, and to remove the snow so as to afford a safe and unobstructed passage to sleighs and wagons, all of which was to be done to the satisfaction of the city commissioner, and, on the failure of defendant to perform these conditions, the common council might terminate the licence. Held, that the right of plaintiff to recover depends upon construction to be placed upon the license granted. The limitation made for the repairs was designed to embrace such portion of the street as would naturally and necessarily be obstructed by the snow in the vicinity of the railroad tracks, and furnish a safe and unobstructed passage as was intended. The defendant, by the terms of the license, agreed to indemnify the plaintiff against any loss or damage they might sustain by reason of the construction or working of the road. The defendant, being bound to indemnify, upon being notified that the suit was brought against the plaintiff, was also obligated to defend the suit, or to abide the consequences of a judgment against them, which binds the indemnitor when notified to defend and fails to do so. Mayor, etc., of Troy v. Troy and Lansingburgh Railroad Co. Opinion by Miller, P. J. 2. The defendant failed to keep the street in repair, and by reason thereof the plaintiff was damnified. They have clearly a right to compensation. It does not rest with the defendant to say, that, because plaintiff failed to do what defendant was solemnly bound to perform, that defendant is not liable for a failure to perform its contract. It cannot shelter itself from responsibility by reason of the negligence of the plaintiff. The court properly held, that if plaintiff was entitled to recover, defendant was liable for the amount of judgment and interest. Judgment for plaintiff, with costs. Ib. FOURTH DEPARTMENT. JANUARY TERM, 1871. ACCEPTANCE. See Contract, 1. AGREEMENT. Executory: performance of by delivery and acceptance.Plaintiffs undertook to construct a boiler for defendants, for their boat, of the best Pennsylvania charcoal iron, according to a certain drawing or tracing attached to the agreement, and deliver the same upon defendants boat, ready for setting, within thirty days, at plaintiffs' wharf in Philadelphia, their place of business. The boiler was delivered in time, and part of the purchase price paid according to agreement. The defendants received it, placed it upon their boat, and decked it over and took it to their place of residence and business at Oswego. More than a month and a half after the delivery and acceptance of the boiler the defendants took a cargo upon the boat, bound for New York. After the boat was so loaded the boiler was inspected and tested by an officer of the United States, according to law. At a cold water pressure of one hundred and twenty-three pounds one of the stay bolts in the dome gave out, owing to an imperfect weld, and it was found that there were not bolts enough, and the iron was not of sufficient thickness to resist a greater pressure, which the defendants claimed was not according to the agreement. The defendants caused the bolt to be repaired, sent a bill to plaintiff of cost of such repairs, and kept the boiler, without offering to return it. The plaintiff refused to pay the bill for repairs, claiming that the boiler had been made in all respects according to the contract, and was not calculated to resist a pressure of over one hundred and twenty pounds. In an action to recover the balance of the purchase price, held, sustaining the ruling at the circuit, that defendants were not entitled to set up defects in the boiler by way of defense; that by accepting and retaining the boiler they had admitted that contract had been performed by plaintiff. Neafle v. Hart. Opinion by Johnson, J. Bill of exchange: duplicate of same; liability of drawer.— On the 1st of July, 1857, the plaintiff purchased a bill of exchange of the defendant, drawn by the latter on his bankers in Wall street, New York, for $2,026.83. The draft was post-dated to July 10, 1857. On the same day it was drawn, the plaintiff indorsed it and forwarded it to the Exchange Bank at Hartford, Conn., to pay his, plaintiff's, note at that bank. The draft was received by this bank and immediately forwarded for payment by drawees. It was presented to them for payment before the day on which it bore date had arrived, and the drawees refused paying it on that account, and it was protested for nonpayment, and returned to Bank of Hartford. In some way the bill was lost, and never came to the hands of the bank, and was never found. On the 10th of August, 1857, an agent of plaintiff procured of defendant the draft in suit, for the same amount, as a substitute for the lost draft. It was an exact copy of the first draft, except that defendant, at the time he gave it, wrote the word "duplicate" across its face. The evidence tended to show, that the defendant, when he delivered it, declared that he did not intend thereby to create any new liability. The duplicate was delivered in the forenoon, and the mail by which it would regularly have gone forward left at six o'clock P. M. The evidence tended to show, that defendant, when he delivered the duplicate, requested plaintiff's agent not to forward it by that day's mail, but to hold it until the next day's mail, and that it was, in pursuance of such request, retained, and forwarded by same mail next day. In due course of mail it arrived in New York, and was presented for payment on the 14th of August, 1857. The drawees had failed at the close of business on the day previous, and payment was refused and the duplicate duly protested. Had the duplicate been sent forward by mail on the day it was delivered, it would have been presented during business hours on the 13th of August and been paid. The drawees had at all times, from the time the first draft was drawn, sufficient funds of the defendant in their hands, otherwise unappropriated, to pay the amount up to the close of business hours on the 13th of August aforesaid. Held, upon these facts, that the duplicate was given for the purpose of being presented for payment, and stood, when delivered, in the same situation in which the original draft would have stood, had it then been found. That the defendant having requested the delay in sending it forward, but for which it would have been paid, must be held to have taken upon himself the risk of the insolvency of the drawees during the period of such delay, and was therefore liable. Benton v. Martin. Opinion by Johnson, J. CONTRACT. 1. Order: what is binding: acceptance of. - The plaintiffs ordered by letter, from defendants, who were paper manufacturers, 500 reams of 15x20 straw paper, by car on railroad, and then to fill the cars with 18x26 paper, and added, you may then go on and manufacture and send three car loads of 18x26 paper. The defendants did not reply by letter, but soon after receipt of order sent by car to plaintiffs, 838 reams of 15x20 paper, a small quantity of 18x26, and filled the car, in addition, with 104 reams of 20x30 paper, a kind not ordered. This car load the plaintiff received, and paid for. The plaintiffs wrote repeatedly to defendants to send the three car loads of 18x26 paper, but it was never sent, and no other paper was sent. The plaintiff brought the action to recover damages for the alleged breach of the contract in not sending the three car loads of 18x26 paper, claiming that defendants, by sending the first car load, had accepted the order and entered upon performance by which they became bound. Held, that sending a car load differing in quantity, of kinds of paper ordered, and containing kinds not ordered, did not constitute an acceptance of the entire order, nor of the order in any respect as given, and that the action could not be maintained. Staples v. Clifford. Opinion by Johnson, J. 2. Right of recovery for partial performance. On the 2d of May, 1868, the defendants sent an order to plaintiff to make for them three or four models of a certain mowing machine, "at once." On the 4th of May, 1868, plaintiff auswered by letter, that he would commence the models the next Thursday, and closed by saying, "the matter will admit of no delay, and to be useful must be prosecuted rapidly." The plaintiff completed one of the models and forwarded it to the defendants on the 31st of July thereafter, who accepted it without objection. On the 12th of November following the plaintiff finished and forwarded to defendants two other models, which they refused to accept, on the ground that they had never been ordered by them. . The action was brought to recover price of the three models. The referee found that the first model had been completed without unreasonable delay, but that the other two had not, and that defendants, by reason thereof, were not bound to accept or pay for the two last, and he gave plaintiff judgment for the price of the first model only. On appeal,- Held, that the contract was entire for three or four models, and that the plaintiff was either entitled to recover for the whole three, or not at all. That the defendants, by accepting the first model, did not lose the right to refuse to receive the other two, if not completed in time, according to the agreement, unless they had waived strict fulfillment in respect to time, in regard to which there had been no finding. Held, also, that it was optional with plaintiff, on such an order, to make either three or four models, to fill such order. Sharpe v. Johnson and others. Opinion by Johnson, J. JUSTICE'S COURT. Proving tille, in an action commenced in justice's court. The plaintiff drew water for the supply of his mill by means of a ditch through lands owned and occupied by defendant. The defendant, claiming that the plaintiff had no right to draw water through the ditch, removed certain gates and racks in said ditch, for which the plaintiff brought his action in justice's court. The defense there was that the gates and racks were put in on lands in defendant's possession, and caused water to overflow on his lands, and that he removed them to abate the nuisance, as he lawfully might. The plaintiff recovered before the justice, and the defendant appealed to the county court. On the trial upon the appeal it appeared from the plaintiff's testimony that the defendant disputed his right to have the gates and racks there, and to maintain the ditch and draw water through his land. The plaintiff's complaint and his action was thereupon dismissed, upon the ground that as by his own showing his right was disputed he could not maintain his action without proving title, and as his right to draw water through the lands of another was an interest in real property, it could not be proved in an action originating in a justice's court. On appeal to this court, held, that the action was properly dismissed. That the defendant being in possession of the lands both sides of the ditch, and there being nothing to mark any separate possession or occupation by the plaintiff but the mere flowing water, prima facie, it was all the defendant's possession, and the plaintiff would necessarily be driven to make out his title. And that he could not in such a case prove title either in the justice's court or on the trial in the county court. O'Donnell v. Brown. Opinion by Johnson, J. MORTGAGE FORECLOSURE. Right of redemption by wife of mortgagor.- The plaintiff united with her husband, in his life-time, in a mortgage upon premises in question. An action was brought, in the life-time of her husband, to foreclose such mortgage. No process was served upon the plaintiff, she being at the time insane, and in an asylum, but was served upon the husband, who appeared by attorney, and who employed an attorney to appear and put in an appearance for the plaintiff, which was done, but without her knowledge or consent. There was a decree of foreclosure in the action, by which plaintiff's rights were adjudged barred and foreclosed, and the premises were sold under the decree and purchased by the defendant's grantor, who was the highest bidder, and purchased in good faith, supposing the plaintiff's rights were foreclosed and cut off by the sale. The defendant purchased in good faith and for a valuable consideration, after having search made of title, by which it appeared that plaintiff's rights had been regularly foreclosed. The plaintiff's husband having died, she brought this action to redeem, claiming that, as the appearance in the action for her was wholly unauthorized by her, her right had not been cut off or prejudiced by the decree and sale. Held, that the action could not be maintained. That it was not only the right, but the duty, of the hus band, upon being served with process in such an action, to employ an attorney to appear for his wife. That the service of process need be upon the husband only, and that the plaintiff was concluded by the appearance in her behalf by the attorney so employed. Lathrop v. Heacock. Opinion by Johnson, J. NEGLIGENCE. The plaintiff, who resided at Niagara Falls, started with her sister from their residence for the defendant's depot, to take the early train. |