leaves it exposed to the lunatic, when he has knowledge, or just reason to know, of his condition, he cannot recover for any injury committed upon the property. He may possibly recover in such case even, for any actual benefit the lunatic may have received from the use of the property.

So, too, after one is informed of the lunatic's condition, and blindly and rashly continues to deal with him, and to help him into transactions from which no benefit results to the lunatic, he must be content to bear the loss of his own services, and of any advances thus made to the lunatic, as the law will not suffer any recovery against the lunatic for such cause.

BRITNALL v. SARATOGA & WHITEHALL RAILWAY Co.

Variance Common carrier - Deposition.

Courts of error will not ordinarily regard questions of variance between the pleadings and proof on trial, which were not brought to the notice of the court below, and especially when they are merely formal, and might have been readily cured by amendment, and will not affect the conclusiveness of the judgment as a bar to future litigation.

Common carriers receiving packages or parcels of goods are bound to regard the marks upon them, which must be considered as indicative of their ultimate destination, and they should therefore deliver them to the next carrier on the line, in order to discharge their duty.

The owner of goods delivered to a carrier for transportation cannot recover of the carrier, without proving negligence, or breach of contract on his part. But this proof being of a negative character, he is only required to give such proof as may be in his power. He should prove that he did not receive the goods, and that they did not reach their ultimate destination. And although this may leave it uncertain in what portion of the line the loss occurred, it is regarded as sufficient to put the defendant, who is shown to have received the goods, upon his defence, and to require of him to show that he performed his duty in regard to the undertaking. This is much more in the power of the carrier than of the owner of the goods.

The statutes of this State do not provide any mode by which the adverse party can take a duplicate of the deposition, to be used on his part, in the event of the party tak

ing, not offering it. He must take the deposition anew, if he desires to have it in his power to use it.

PROBATE COURT v. THE EXECUTOR OF JAMES PORTER. Practice-Continuance-Affirmance of judgment as of former term. This was a suit against the testator, as surety upon the administration bond of one Reed. It was heard at the last term of the court upon pleadings, presenting the merits of the defence, as the declaration then stood; and it was then decided that the plaintiff could not prevail, for the reason, among others, that no proceedings had been taken in the probate court, with a view to charge the bail, which the court regarded as an indispensable prerequisite to any successful suit upon the bond. The court were then ready to affirm the judgment of the county court for the defendant. But upon motion of the prosecutor's counsel, time was given to amend the declaration, which was expected to be done before the March term of the county court, 1859. That time expired and nothing was done. At the general. term in May, at Burlington, a further time of sixty days. was given for that purpose, which expired without any action being taken; since which time the prosecutor has deceased. We are now asked to continue the cause, to give time for administration to be taken on the estate of the prosecutor, which will draw the administration of three. estates into this suit. This course is objected to by the executor, the defendant, and we are asked to affirm the judgment, as of last term. This is not uncommon when it is deemed proper to preserve the rights of parties, as they existed at a former term, some of the parties having since deceased. We think there is no occasion for further delay in this case.

The clerk will therefore enter "judgment affirmed " upon the docket of last regular term, and erase the entry allow ing the plaintiff to amend, and treat the entries upon the dockets of the subsequent terms as mis-entries.

SARATOGA & WHITEHALL RAILWAY v. BRITNALL.

New trial- Newly discovered evidence.

This is a petition for a new trial on the ground of newly discovered evidence. There seems no question but the evi

dence is newly discovered, and is of such a character as the party was not bound to expect he might have found, so that he would not be fairly chargeable with neglect for not having sooner discovered it. The objection to the testimony seems to be of the opposite character, that it is so unusual and singular in its minuteness, as well as the source from which it comes, that it could not be expected to gain credit with a jury. In addition to this, the general character of the witness for truth is impeached.

Under all these sources of doubt we could not regard the testimony as so far decisive of the case as to justify a new trial upon that ground. New trials are not to be granted for newly-discovered evidence, unless it be of such a character as to relieve the case of all probable doubt. Petition dismissed, with costs.

PHELPS, DODGE, & Co. v. CONANT.

Error — Admission or rejection of evidence under specification Statute of frauds.

The admission of evidence merely irrelevant, but which is not calculated to mislead the jury, or in any way to prejudice the objecting party, is no ground of reversing judgment upon writ of error.

It is discretionary with courts to require the plaintiff to give a specification of his claim before trial, and in what form, or to what extent. They may also require, or allow, amendments in such specifications, at discretion, so that the admission of evidence not within the specification could scarcely be regarded as error, although it might be ground of granting a new trial, for surprise. But the rejection of evidence, as not coming within the specification, which in fact did, would be error.

The promise of the defendant to accept the draughts of a third party, to be drawn in consideration of goods furnished by plaintiffs to such party, is a collateral undertaking within the statute of frauds, and cannot be enforced unless in writing.

STRONG v. ADAMS.

Trespass to personal property- Owner and pledgee.

The owner of personal property in possession, who pledges the same to secure a debt, due at the time, cannot

maintain trespass against a stranger for taking the same from the possession of the pledgee, before the debt is paid.

DOUGLASS v. WHITTEMORE.

Contract-Right to use of mill-pond.

One owning a grist-mill and saw-mill, sold and conveyed the former, reserving the right to the use of the water for his saw-mill, when the water was above low-water mark, designated by the top of a certain stump in the mill-pond, "so as not to impair the right of the grist-mill in any way or manner."

Held, that this did not preclude the owner of the sawmill from taking water from the mill-pond at a point below the line of low-water mark, provided the water was, at the time, above such line, and it was done in such a manner as not essentially to impair the utility of the use of the water by the grist-mill.

KAULBACK v. PACKER.

Partnership-New England Protective Union.

The New England Protective Unions are partnerships, and all the partners liable for such debts as are contracted in conformity with the articles of association.

The provision, in such articles, that the business shall be done upon a cash basis, seems to refer to the buying and selling of goods, and not to the borrowing of money.

There being no provision for raising a capital among the partners, and it being impossible, in the nature of things, to conduct trade in buying and selling goods upon a cash basis, without capital, it seems to result, of necessity, that it should be raised upon the credit of the partnership, unless some other mode is provided.

Under these circumstances, when such union passed successive votes to borrow money, and the plaintiff from time to time furnished money to buy goods, by request of the agent and directors, it was

Held, that the members of the association were bound to refund it, on the ground of acquiescence, and of an implied notice that such course must, and would, of necessity, be pursued, if the business were begun, or continued, which seems to have been the purpose and design of the associ ation.

STEARNS v. STEARNS.

Statute of limitations · Evidence of agreement not to set up, given under replication of actio accrevit.

An agreement, by the debtor, not to take advantage of the statute of limitations, in reliance upon which the creditor suffers the time to elapse by which the debt would become barred under the statute, is good evidence under the ordinary replication to the statute, that the cause of action did accrue, etc., and need not be replied, by way of estoppel.

FOOT & HODGES . RUTLAND & WASHINGTON RAILWAY.

Principal and agent.

Where one railway company is leased to another railway company, with the right to use the name of the former company, in any way which should become necessary, at their own risk and costs, if the lessees bring a suit in the name of the lessors, or in the name of a party apparently representing the lessors, and employ counsel, who give credit to the lessors, they are liable to such counsel for their services.

RUTLAND & WASHINGTON RAILWAY v. THE BANK OF

MIDDLEBURY.

Trover Railway bonds- Special damage.

In an action of trover for railway bonds, it is competent for the court to allow the defendant to return the bonds into court for the plaintiff, and pay the costs then accrued; and to grant a rule upon the plaintiff to accept the same, and discontinue his suit, or proceed for special damages, at the peril of costs. This is the general rule, in all actions of trover, where the property is offered to be returned, in specie and without deterioration, or such delay as to render it essentially less useful to plaintiff, and when the taking or detention was in good faith.

If special damages are claimed, in an action of trover, they must be specifically and particularly alleged.

The loss or detention of money, or securities, which are its equivalent, is not the ground of claim for special damage, unless the securities, in the mean time, have depreciated. And in such case it could not be claimed as special damage, if the securities were the bonds of the party, unless, at the time of the conversion, they were above par.