counts except that as to the clothes, and contended that there was no property in a dead human body, and that there could therefore be no contract in relation thereto, and that there was no legal remedy for an injury to a corpse.

The plaintiff claimed that a husband has a right to the custody, possession and control of the dead body of his wife for the purpose of securing it a decent burial; that for this purpose he could make a valid contract, for a breach of which he could maintain an action.

Plaintiff made the following points:

238.

1. That the common law punished criminally a libel on the reputation of the dead. 1 Hill. on Torts, The same reason requiring this, viz.: to prevent people taking the law into their own hands (Rex v. Popham, 4 T. R. 127), requires in this State, in the absence of a criminal statute, the existence of a civil remedy, and the law will prevent an injury to a dead body, and carefully protect its right to decent burial. Kavanagh's Case, 1 Greenl. 205; Regina v. Stewart, 40 E. C. L. R. 383, 385; 12 Adol. & Ell. 772.

2. That it is the husband's duty to bury his wife. Jenkins v. Tucker, 1 H. B. 90. Even where no such duty exists, as in the case of an infant widow burying her husband, the law so far recognizes the former relationship of husband and wife that it will enforce a contract made by the wife for the burial of her husband. Chappell v. Cooper, 3 M. & W. 259. For any injury to a right an action will lie even where no pecuniary damage can be shown. 1 Hill. on Torts, 74 n., 76, n.; Ashby v. White, 2 Lord Ray., 938; Webb v. Portland Manf. Co., 3 Simm. 189; 3 Pars. on Cont. 217. Finally, plaintiff cited, as covering the whole case, 4 Brad. Sur., R. N. S., appendix.

be called, perhaps, a quasi property. At any rate, it is a right which the law will enforce, and for an infringement of which an action will lie; otherwise if a body was delivered to an undertaker, to be prepared for burial, he might insult, mutilate, cast out naked into the highway, and even dispose of the corpse. The body might be outraged in the presence of the husband, and taken away. To say that the law gives no remedy, no means of prevention, is to say that all the requirements of decency, humanity, morality and christianity may be disregarded with impunity, is to bid the husband protect his right by force. The old English decisions, referred to by defendant, only establish that a body is not property. They do not show that there may not be rights attached to a dead body, rights to care for it, watch over it and bury it, which the law will protect; even if they did hold that no such rights existed, in this age and in this country, the court would feel it its duty to disregard them. The demurrer and motion were overruled, and the defendants had leave to answer.

CURRENT TOPICS

There is really no reason in the doctrine of contributory negligence as applied by the courts in many of the States. To hold that a plaintiff guilty of the least negligence cannot recover against a defendant guilty of gross negligence is a very easy way of disposing of a case, but it certainly is not founded on common sense nor justice. The supreme court of Illinois have a more sensible doctrine-comparative negligence-which is very fairly illustrated by the case of The Chicago and Alton Railroad Company v. Pondrom, 51 Ill. 333. There the defendants had been

The court held that a human corpse was not itself so far property that it could be made an article of merchandise. A court would not, in the absence of a statute permitting such a transaction, enforce a contract for the sale of a dead human body. To permit such a contract to be made would be to outrage decency, humanity and public policy. The same reasons which forbid the enforcing such a contract require that some person shall have a right to the custody and care of a body, for the purpose of securing it a decent burial. For this purpose the law gives a husband the right to the custody of the dead body of his wife, parent of a child, and a child of a parent. But it would be useless to give this right if the husband is not protected in its exercise. There is in this State no statute making it a criminal act to interfere with this right. The remedy, if there is any, must be by a civil action. It would be idle to say that the husband has a right to protect his wife's dead body from insult, to its care and custody for the purpose of burying it, if he has no means to protect and enforce the right. A body itself may not be property; but this right may

the main track that the plaintiff, guilty of the slight negligence of permitting his arm to rest on the windowsill of the car and project slightly outside, had his arm broken by contact with it, and the court sustained a verdict for the plaintiff. The negligence on the part of the plaintiff, if any, was certainly very slight, considering the manner in which cars are constructed and the almost involuntary habit of passengers of resting their arms on the window base; but his chances for recovery would have been but very slight in some of the courts outside of Illinois.

The project of publishing the general laws or statutes at large of the State apart from and in advance of the session laws, ought to meet, as it no doubt will, the approbation and support of the profession. Aside from the extraordinary and needless delay in issuing the session laws, we see no good reason in compelling the purchase of two immense volumes in order to procure something less than a hundred chapters of what alone is worthy of the name of law. The legislature at the last session passed about one thousand acts, only some ninety of which have any relation to the affairs

of the State, the remaining nine hundred or thereabouts being for the relief of "John Doe" or for the repairing of some town bridge, or for some other equally momentous undertaking. Messrs. Weed, Parsons and Company have issued the general laws in a shape and style uniform with Edmonds' "Statutes at Large," with references to previous statutes and decisions, and with side notes quite as good as any to be found in the session laws. Of course this enterprise does not meet the approbation of a portion of the "trade," nor of the "ring," as it will reduce the enormous profits heretofore made on the session laws, but as it will save these profits to the profession we have no share in their grief. We understand that the publishers propose to continue the general laws annually, and to make arrangements for issuing them hereafter at a much earlier period.

The motion of Sir Roundell Palmer to found a general school of law into which should be merged the inns of court, has found a valiant opponent in the person of Mr. Jessel, M. P. The latter does not oppose legal education reform, but he opposes the particular plan proposed. His general idea is to provide for compulsory examinations to be carried out by the inns of court, and if they will not then find somebody that will. His notion is, that, give an end to be obtained and the individual will find out for himself the best means of obtaining it. In this there is a fallacy. Means for obtaining the end will undoubtedly be found, but not always the best means. There certainly must be certain methods of acquiring a knowledge of the law which are entitled to be denominated best, and it should be and probably is the object of Sir R. Palmer to provide these methods. It cannot be done by the individual, however clever or ambitious, and life is too short to compel a man to accomplish a given end without providing the best means for doing it.

Mr. Jessel, in his speech in reply to Sir R. Palmer's motion for the establishment of a general school of law, indulged in considerable "buncum;" notably so when he attributed the present chaotic state of the English law to the fact that "we are a free people." There is no doubt that the popular assemblies of a "free people" are given to unscientific legislation, but that is no reason for permitting the laws to remain always in an inaccurate and unscientific form. The people of the several States of this Union claim quite as much freedom as do the people of England, and yet our democratic assemblies have been the leaders in all movements to codify and simplify the laws. The fact is that an esoteric state of the law is more becoming to an autocracy than to a republic. Where the people rule, they desire to know the laws, and, therefore, desire to have them reduced to an intelligible form.

The Spanish Cortes is engaged in the consideration of the subject of the trial by jury for offenses committed by members of the press.

GENERAL TERM ABSTRACT.

JUNE TERM, 1871.

NEW YORK COMMON PLEAS.

ATTACHMENT. See Consignor and Consignee.

BILLS, NOTES, ETC.

1. Accommodation paper.-Appeal from a judgment against defendants for the amount of a promissory note made by them. Their defense was that it was an accommodation note. It appeared that this note was one of a series of notes given by defendants to one Greenough in the course of business with him. On appeal, held, that the judgment should be affirmed, as defendants' testimony did not satisfactorily maintain that the note in suit was an accommodation note, but was rather advanced by them to Greenough, in the course of business between them, on his agreement to furnish therefor certain articles, with which he was from time to time supplying them to a sufficient amount to pay it at or before maturity; while the testimony failed to sustain the precise state of account between them when this note was given. Greenough's neglect to fully comply with his contract between the giving of the note and its maturity did not divest it of its negotiable character, or disenable him from transferring it to a bona fide holder, though for less than the face of the note, with discount at a legal rate of interest. Had it been partly an accommodation note, the defense of usury in its inception would have been available to any party to the instrument. Randlett v. Hebbard. Opinions by Daly, C. J., and Robinson, J. 2. Discovery of usury.. -The act of 1837, chapter 430, gave the "borrower" relief in equity for the discovery of the usury; but, as the bill of discovery is abolished by the code and all parties may be examined as witnesses on the trial, it is of no importance whether or not a surety or an accommodation maker or indorser was within the purview of that act; that ground (discovery) of equity jurisdiction (in cases of usury) having become obsolete; but, as a party to the usurious agreement, void for that cause in its inception, either a surety or accommodation maker or indorser may avail himself of such defense to an action thereon. Ib. Also, see Consignor and Consignee.

BROKERS. See Contracts.

CONSIGNOR AND CONSIGNEE.

1. Lien of consignees on goods shipped. The plaintiffs are commission merchants in New York city. One Severson, in Norfolk, Va., had shipped produce to them, and had made drafts on them several times. On July 12th, 1870, with the consent of the brother of one of the plaintiffs, he drew a draft upon plaintiffs for $250. On July 14th the draft was accepted by plaintiffs in the expectation of Severson's shipping goods to cover it, and it was paid on July 24th. On July 13th Severson advised plaintiffs, by letter, that he had the day before shipped to them certain packages, and that he had made the draft named, adding that he would the 14th he wrote acknowledging the receipt of their try and buy "stuff" for them by every steamer. On account, and their check for the amount of sales

inclosed, which he inclosed back to them, and requested them to protect the draft, and that he would ship to them on the 16th. On the last-named day the goods were shipped, a part of which were taken by the dofendants upon attachment. It does not appear that

they were accompanied by any bill of lading. They were sent by steamer from Norfolk, and were marked S. (in a diamond), 14. S. indicating Severson, and the figure 14 the number of plaintiffs' bin on the steamer's dock, where goods consigned to him were placed on arrival. The shipment was accompanied by a letter from Severson, containing an invoice of items, and advising them of the shipment, and telling them that this, with other shipments, would more than cover the draft of $250. Defendants, Brewer and Kline, obtained an attachment against the property of Severson, as a non-resident, in an action against him. Under it the other defendant, Smith, a marshal, seized a portion of the shipment of July 16th, most of which was taken from defendants' bin, and the residue as the goods were being delivered from the steamer; the whole of which was subsequently sold under the attachment. The plaintiffs brought this action, and recovered judgment, for the value of the property taken, $82.87. On appeal, held, it is clear that Severson made this shipment with the intention that the property should pass to plaintiffs for their security and indemnity in accepting the draft. This is not like the case of a principal who consigns goods to a factor for sale, and draws against the proceeds, in which case the factor's lien is on the proceeds or upon the goods in his possession for his security if he has accepted or paid the draft. But it is the case of a draft upon a factor, to be covered by goods to be sent, and which goods, the moment they are shipped, vest absolutely in the factor as his security or indemnity for the prior acceptance and subsequent payment of the draft. Vertue v. Jewell, 4 Camp. 31, cited. The plaintiffs accepted the draft with the expectation of the drawer's shipping goods to cover it. The goods in controversy were shipped by the drawer for that purpose. They were shipped upon the assumption that the draft would be accepted, and before they were sent the draft had been accepted. The moment, therefore, they were shipped, the property passed to the plaintiffs, and it was constructively in their possession, and subject exclusively to their control, when it was attached as the property of Severson. The difference between the value of the goods and the plaintiffs' special property in them certainly belonged, however, to plaintiffs' principal in Norfolk, and was subject to attachment for his debts. By this attachment it was applied to them. Judgment should be modified to amount of plaintiffs' special property. Heard et al. v. Brewer et al. Opinions by Daly, C. J., and J. F. Daly, J.

2. General rules as to the lien of a consignee. - The general rule is, that the right of lien, which is in the nature of a pledge, attaches only to property which has come into the actual possession of the bailee, factor or other person, who claims the benefit of it; this is subject, however, to qualification, for a right of lien may attach to a thing which is incapable of possession, or where the possession is simply constructive, the actual possession being in another, of which latter class is that lien which a consignee or factor has upon goods for advances made or agreed to be made upon them, and which attaches the moment they are shipped or consigned to him, subject only to the right of stoppage in transitu in the event of his insolvency before they come into his possession. The mere circumstance that a consignor ships goods to a factor for sale, and is in the habit of drawing upon the factor against the proceeds, does not of itself give to the factor any right to anticipate the possession, or to keep it

against the unpaid consignor; but it is otherwise if bills are accepted upon the credit of a particular consignment, for then there is a specific pledge of the property, and a transfer of it to the factor takes place by the delivery or indorsement to him of the bill of lading, so that it is constructively in his possession, and he has a lien upon it for his indemnity the moment it is shipped or consigned to him. In the absence of a bill of lading, the intention to vest the property in the goods in the consignee upon the shipment, so as to give him the constructive possession, subject only to the equitable right of stoppage in transitu, may be inferred from other documents, such as receipts or orders, or by the correspondence which has taken place between the parties. The question generally is, whether there was an appropriation or pledge of the specific property to the factor at the time of shipment, in consideration of the advances made or agreed to be made. It is the intention of the consignor at the time of shipment which is to govern. Bruce v. Wait, 3 Mee. & W. 15; Haille v. Smith, 1 Bos. & Pul. 563, cited. Ib.

CONTRACTS.

1. Contracts of sale of real estate. -The plaintiff, who was acting as defendant's broker, introduced one Gilmore to defendant, and, after some negotiation, an instrument in writing was drawn up and signed by both parties, which was in these words: "This is to certify, that I, Samuel Kissick (the defendant), sell to Peter Gilmore, for the sum of $17,000, the house (describing it), and that I have received the sum of $75, the balance, amounting to $16,925, to be paid in thirty days." Gilmore refused to take the property. Plaintiff brings this action to recover his commissions upon the sale. Defendant claims that the legal effect of the instrument was merely to give to Gilmore an option to take the property at the price named within thirty days; and that the $75 was paid for this right of option or election, and not as earnest on a contract of sale. Judgment for plaintiff. On appeal, held, that the agreement in question is an absolute agreement to sell, which a court of equity would compel the defendant to perform, even though the instrument had been signed by him only. Gilmore subscribing his name to the instrument could have been for no other purpose except to indicate his consent to purchase the house upon the terms agreed upon. What is necessary is a clear accession on both sides to the same set of terms, and this took place as effectually when Gilmore put his name to the instrument, as if the words "And I, Peter Gilmore, buy" had been contained in the instrument after the words "I, Samuel Kissick, sell." Judgment affirmed. Simonson v. Kissick. Opinion by Daly, C. J. 2. Part payment of purchase-money.-A party who pays part of the purchase-money and afterward refuses or neglects, without legal excuse, to pay the rest and take the deed, cannot recover back what he has paid, but that is because of his wrongful act in not fulfilling the contract, and not upon any assumption that the amount so paid is a consideration for the exercise of an option to take the property or not. Ib.

3. Brokers' right to commissions on sales.-A purchaser's ability is to be assumed, unless the contrary appear, and when a contract in writing for the sale of the property at the price asked is signed by the owner and the purchaser, the broker has earned his commission, and his right to it is in no way affected by the subsequent refusal of the purchaser to fulfill the contract. Ib.

4. The rule, as to contracts for sale of land, in equity. -The rule in contracts for the sale of land is, that the remedy in equity is mutual, and that the vendor can enforce the contract in all cases where the purchaser can sue for specific performance. Ib.

5. Questions as to whom credit was given: statute of frauds. It was necessary that a delicate surgical operation should be performed on the defendant's brother, who resided at Groton, Connecticut. The physician of his brother telegraphed to defendant to bring on a surgeon from New York at once, and named plaintiff in the telegram as a suitable person to bring. Defendant immediately went to plaintiff's office and showed him the telegram, and it was arranged that they should meet at the depot. Nothing was said about who was to pay the plaintiff. The parties went together to Groton, defendant paying the railroad fare for both; and the operation was successfully performed. Plaintiff made out his bill to defendant's brother, and wrote to the brother on several occasions calling on him to settle the bill. Upon this state of facts, the judge left it to the jury to determine who employed the plaintiff, or upon whose account and credit the services were rendered. Judgment for plaintiff. On appeal, held, in the question which arises so frequently, under the statute of frauds, to whom was the credit given, in cases where the point is whether the promise was collateral to answer in default of another or an original undertaking, great weight is attached to the fact, that the plaintiff has charged the debt upon his books or made out the bill to the person who received the goods, to show that the promise of the defendant was simply collateral, and therefor void, for not being in writing. This is not absolutely conclusive, as it may be shown that it was done by mistake; but it is a most material and without explanation a controlling circumstance, for as was said by Woodruff, J., in Direom v. Frazee, E. D. Smith, the plaintiff, thereby puts his own construction upon the agreement. Plaintiff made out his bill against defendant's brother, and nothing appearing to show that this was done by mistake, or any explanation given, the construction stated must be given to so material a circumstance; so that even if defendant had promised to pay the plaintiff, the undertaking would be collateral and void under the statute, not being in writing. There is nothing in the evidence, in any point of view, to support the verdict. Judgment reversed. Buck v. Amidon. Opinion by Daly, C. J.

6. Principal and agent.-It is a general principle pervading the law of agency, that one who procures services to be done for another is not himself chargeable, unless he omits to make known his principal, or erroneously supposes that he has authority, or exceeds his authority, or expressly or impliedly engages to be answerable, either by directly promising to pay for them if rendered, or by doing or saying something which justifies the person who is to perform them in supposing that the one who applies to him engages to pay for them. Owen v. Garsch, 2 Esp. 567, cited. Ib.

7. Cases where finding of jury is conclusive.-It was suggested in answer to the appeal in the case at law, that the question to whom the credit was given was one of the intention of the parties as deduced from the facts and circumstances, and that the jury having drawn the deduction that the services were rendered upon the credit of defendant, their verdict should not be disturbed. The learned judge, giving the opinion of the general term, says: Where, upon an uncontro

verted state of facts, the point involved remains doubtful, or upon undisputed facts inferences may be drawn either way, the question is probably one for the jury, and their finding should be conclusive. But in all such cases there must be something in the evidence to found the conclusion upon; and, in this case, I fail to discover any thing showing or tending to show the intention claimed to exist. Ib.

Also, see Evidence

DISCOVERY.

EQUITY. See Contracts.

1. Evidence as to value of services.-It appeared on the trial that plaintiff was employed by defendant's firm, and in August, 1868, was discharged by defendant. Defendant, however, allowed him to remain around his store, and plaintiff performed certain services at the request of two of defendant's dormant partners. On February 2, 1870, he, however, formally discharged the plaintiff and refused to allow him on his premises. Plaintiff brought suit previously to recover for his services up to January, 1870, which suit defendant settled. This action is brought to recover for services after that date. Plaintiff introduced on trial a copartnership agreement, which provided for his employment for five years, and also attempted to prove a verbal agreement for his employment. Defendant's book-keeper was asked, "Were his (plaintiff's) services worth any thing since the first of January, and if so, what?" This question was objected to, and was excluded, because there was evidence of an agreed rate of compensation. On appeal from judgment in favor of plaintiff, held, the agreement to employ the plaintiff for five years, whether founded upon the copartnership agreement or the verbal agreement, was equally void. The plaintiff was no party to the instrument, and there was, therefore, a want of mutuality, and the verbal agreement was void by statute, not being in writing. But for services actually rendered he was entitled to recover their value, and as the plaintiff had been paid for his services up to January, 1870, and had not been formally discharged until February 2, 1870, he was entitled to recover what his services were worth during this period. The question to defendant's book-keeper was, however, improperly excluded for the reason named, and for this error judgment must be reversed. Briggs v. Smith, Jr. Opinion by Daly, C. J.

2. Active and dormant partners.-The active member of a firm who manages the whole business is entitled to dismiss any employee who is not engaged under a valid agreement for a definite period, and, if he persists in remaining under the countenance and support of the dormant partners, I doubt if he can maintain any action against the members of the firm jointly; and if he is not limited to such remedy as he may have against those by whose request and authority he continued to render any services. Willis v. Dyson, 1 Starkie, cited. Ib.

Proofs of loss.-The plaintiffs had their stock in trade insured against fire in several companies to the amount in the aggregate of $10,600, and, in their sworn proofs of loss, claimed that the actual cash value of the property insured by said companies and destroyed by fire was $16,336.23, and, therefore, demanded the total amount of each policy from the

company issuing it. The defendants claim that the whole loss did not exceed $4,600. The referees found that the total loss was $9,172.18, and awarded against each company damages on its policy proportioned to the total loss and total insurance. From the judgments entered on the report of the referees, the insurance companies appeal. They set up as a bar to recovery, that the plaintiffs, in their said sworn proof of loss, in claiming it to be $16,336.23, were guilty of fraud, attempt at fraud, and of false swearing, which avoided the policies, according to a stipulation therein; they also claim that the finding was a compromise finding, and was not sustained by evidence. On appeal, held, the fact that the plaintiffs swore that their loss was $3,489.03 more than the referees found it to be, is not even presumptive evidence of false-swearing or of fraud. No matter how much the amount sworn to by them may exceed the recovery, no fraud can be predicated, unless two points be established against them, i. e., that there were no such goods of such value destroyed; and, that the insured knew or must have known the fact when they swore to their preliminary proofs of loss. The report of referees or verdict of a jury is to be deemed conclusive for the purposes of the particular action as to the actual loss, but it is not conclusive of false swearing or fraud. The evidence offered by defendant was circumstantial, and did not conclusively establish the impossibility of there having been goods destroyed as claimed by the plaintiffs. It is no objection to the recovery that it was for a less sum than sworn to and claimed by plaintiffs, so long as the plaintiffs do not appeal from it. The referees took into consideration the evidence of defendants' witnesses as to the extent of the fire, the position of the goods found after it, etc., and made due allowance by finding a smaller sum. The award, therefore, cannot be said to be an arbitrary compromise or guess-work. It has been held, in cases where the jury has found even a smaller sum proportionately than in this case, that this was no objection to the verdict, and to be an error, if an error, of which the insured alone can complain. Wolf v. Goodhue Ins. Co., cited. Unger et al. v. People's Fire Ins. Co.; Same v. New Amsterdam Fire Ins. Co. Opinion by J. F. Daly, J.

LIENS. See Consignor and Consignee.
PARTNERSHIP. See Evidence.
PRINCIPAL AND AGENT. See Contracts.
REAL ESTATE. See Contracts.

SALES. See Contracts.
STATUTE OF FRAUDS. See Contracts.
USURY. See Bills, etc.

DIGEST OF RECENT AMERICAN DECISIONS. SUPREME JUDICIAL COURT OF MASSACHUSETTS.* BANKRUPT.

1. If a mortgagor, who knows himself to be insolvent, sells and delivers the mortgaged property with the consent, express or implied, of the mortgagee, and afterward gives another mortgage to secure the same debt which the old mortgage was given to secure, the new mortgage is a preference within the United States bankrupt act of 1867, c. 176. Forbes v. Howe.

2. The fact that a mortgage was given in the usual and ordinary course of business does not necessarily *From 102 Massachusetts Reports.

exclude the inference that it was given with the intent to prefer. Ib.

3. A mortgage given by an insolvent debtor to secure advances previously made is not purged of its character as an unlawful preference because it was given in pursuance of an agreement on which the advances had been made; nor because the debtor was induced to give it by the hope of obtaining for the creditor means for the continuance of his business; nor because it was intended to make up security which had been reduced by the sale, with the consent of the mortgagee, of property included in a previous mortgage to him, under an understanding that a new security should be given. Ib.

4. In an action on a judgment recovered in another State, whose law and practice are not shown to be different from our own, upon a debt provable in bankruptcy, after the debtor had been adjudged a bankrupt, under the U. S. statute of 1867, ch. 176, his certificate of discharge in bankruptcy is no defense. Bradford v. Rice.

BILL OF EXCHANGE.

The presentment of a draft for payment by a notary himself cannot be proved by his certificate that the draft was duly presented, and evidence of a presentment by his deputy. Ocean National Bank v. Williams.

CARRIER.

1. If a railroad train of nine cars, loaded with various lots of freight, becomes obstructed by a snow storm, so that four of the cars must be left behind on a cold night without shelter, and the conductor is able to select which cars shall be left, and knows that one car contains goods which will be injured by freezing, he is not bound, as matter of law, to take that car forward rather than other cars containing goods of which, in respect to their liability to injury by freezing, he knows nothing. Sweetland v. Boston and Albany R. R. Co.

2. In an action against a railroad corporation to recover for the injury of apples by freezing, as having occurred within two days, during which they were in course of transportation by the defendants over their railroad in the winter, and part of the way through a cold snow storm, if there is only evidence that the apples were frozen when they arrived at their final destination, but no evidence of their condition when they were received by the defendants from a connecting railroad, over which they had been transported in the same car during the previous day, except the fact that the weather was very cold when they reached the defendants, the defendants are entitled, on their request, to a ruling that there is "no evidence in the case that the apples were delivered to them before they were frozen;" although, except the facts named, no evidence was offered to show that they were frozen before or at the time of such delivery. Ib.

3. A special contract between the shipper of goods and a common carrier, for their carriage at the shipper's risk of injury during transportation, does not exempt the carrier from liability for an injury caused to the goods during transportation by his own negligence. School District in Medfield v. Boston, Hartford & Erie Railroad Co., 552.

ESTOPPEL.

A defendant who, in an action against him on a promissory note, has availed himself by plea and proof of a subsequent note for the same amount as given in renewal thereof, and has prevailed on that defense. is estopped to set up, in defense against an