positive act of unequivocal recognition, like part payment or a written admission, or at least a clear and well identified verbal promise or admission, intelligently made, within the period of twenty years. Lyon v. Adde.

2. There is also another presumption - a presumption of fact, or, more properly, in the nature of evidence-which can be drawn by a jury from the circumstances of the case in less than twenty years. Ib.

3. But when the obligation can be extinguished only by deed, the rule is different. In that case there is no presumption of law at all, but there is the same presumption in the nature of evidence as in the other cases. Ib.

4. It is a presumption drawn from all the circumstances of the case, but mere length of time, by itself, will never raise it. That one circumstance of itself is insufficient, but it is a circumstance from which, in connection with other circumstances, the satisfaction of the obligation may be found by a jury or decreed by a court of chancery. Ib.

5. Where a lease creates the relation of landlord and tenant, and the grantor's interest is an hereditament, descendible and hereditable, any release of the rent must be by deed, and there can be no presumption of payment arising from lapse of time. Ib.

6. Courts can draw no conclusion of law from the lapse of time during which rent has remained unpaid, but any presumption which they may raise must be drawn from all the facts and circumstances of the case as evidence, in the same manner in which a jury would draw inferences of fact. Ib.

STATUTES.

1. Rules of construction.- A leading and controlling rule in the construction of statutes is to interpret them according to the true meaning and intent. To ascertain this intent, it is the duty of the court to find, by established rules, what was the fair, natural and probable intent of the legislature. The People et al. v. Schoonmaker et al.

2. For this purpose, the language employed in the act is first to be resorted to. If the words employed are free from ambiguity and doubt, and express plainly and distinctly the intent according to the most natural import of the language, there is no occasion to look elsewhere. Ib.

3. But when the meaning of words is doubtful, and where it is seen that the same words have different meanings, when employed under different circumstances, or to effect different objects, resort may be had to extrinsic circumstances; and the courts may seek for that intent in every legitimate way. Ib.

4. Corporations: “inhabitants :" "residents.” — Independent of the cases making them "inhabitants" and "residents" by construction, for certain purposes, the natural, ordinary and literal construction of the words "residents of a town" would not include corporations; especially those whose places of business were elsewhere. Ib.

5. The word "resident," occurring in the constitution or in a statute, ordinarily means an individual — a citizen-and does not mean a corporation. Ib.

6. Inchoate rights.-Inchoate rights, generally, derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute. Richardson v. Pulver.

7. Retrospective, when valid. - Retrospective statutes are not forbidden by the constitution, in cases in which

they do not impair the obligation of contracts, or partakes of the character of ex post facto laws; and such statutes may be made, by express language, to have that effect. Yet, unless they are so expressed, by necessary implication they will be interpreted otherwise, and so that they shall not operate to change the existing state of things, or the common law. The People ex rel. Pitts v. The Board of Supervisors of Ulster county.

8. The only exception to this rule is, that the doctrine does not apply to remedial statutes, which may be of a remedial nature, provided they do not impair contracts or disturb absolute vested rights and only go to confirm rights already existing, and are in furtherance of the remedy, and add to the means of enforcing existing obligations. Ib.

9. What are retrospective. - By an act of the legislature, passed in April, 1871, the board of supervisors of any county in the State (except New York and Kings) were authorized by a two-thirds vote to legalize the irregular acts of any town officer, performed in good faith and within the scope of his authority, provided such legislation should be recommended by the county court, and to correct any manifest clerical or other error in any assessments, etc. A county judge, assuming to act under this statute, recommended that the taxes which had been assessed against the relator for the years 1866, 1867 and 1868 be refunded to her, and made an order to that effect. The board of supervisors refused to refund or allow such taxes. Held, that the statute was to be deemed prospective only; and that it did not have a retroactive effect, so as to include taxes assesed prior to its passage. Ib.

TROVER.

In an action for trover and conversion, the defendant cannot prove, in mitigation of damages, that the plaintiff has regained possession of the property. And it is erroneous to charge that it is a case for nominal damages only. If the plaintiff is not entitled to recover the full value of the property, he is at least entitled to recover the actual damages he has sustained by being deprived of the use of the property, and the expenses incurred in regaining possession. Sprague v. McKenzie. WARRANTY.

In an action for a breach of warranty on the sale of a pair of horses, the warranty was shown to have been a qualified and conditional one, involving the necessity of the plaintiff's following the condition, viz. to treat the defect (a bunch on the leg) with salt and vinegar. Held, that the plaintiff was bound so to treat it, and that this was a good excuse for refusing to try another treatment, which might hazard the effect of the warranty. Smith v. Borst.

WRITTEN INSTRUMENTS.

1. Attesting witnesses.-Where one who has signed his name as an attesting witness to the execution of an instrument did so without the knowledge or consent of the parties, the instrument may be proved as if there were no subscribing witness. Sherwood v. Pratt.

2. The signature of a subscribing witness is not conclusive upon the parties to the instrument. It is only prima facie evidence that the witness was called in by them, and the presumption arising from it may be contradicted. Ib.

3. And for that purpose parol testimony may be received: the object of the proof not being to contradict or vary the written agreement, but merely to show that its execution was not attested in a particular way. Ib.

FROM VOL. 6, AMERICAN REPORTS.

BANKRUPTCY.

1. An action of review is a chose in action, within the meaning of the United States bankrupt law, and, in virtue of an adjudication in bankruptcy, vests in the assignee, who, alone, may prosecute or defend it in his own name. Zoller v. Janvrin, 469.

2. A vendor, who has contracted to sell his land is in equity a trustee for the purchaser, but if he has not received the whole of the purchase-money, he is not a mere naked trustee, and upon becoming a bankrupt, his interest in the land will, by proper assignments, pass to the assignee in bankruptcy under the fourteenth section of the bankrupt act. Swepson v. Rouse, 735. 3. To a bill for a specific performance of a contract to convey land, the assignee of the vendor, who has not received the whole of the purchase-money and who has become bankrupt, must be made a party. Ib.

4. Where a defendant to a bill for the specific performance of a contract to convey land, alleges and relies upon his certificate of discharge as a bankrupt, the fact of a proper assignment of his estate to his assignee will be presumed though it is not specifically alleged, where there is no allegation or proof to the contrary. Ib.

BANK CHECK.

1. The holder of a negotiable bank check, drawn the day previous, presented it for payment, which was refused. On the same day he transferred it for a valuable consideration to plaintiff, who took it in good faith and without notice of the previous dishonor, and immediately on the same day presented it to the drawee, whereupon payment was again refused. Held, that plaintiff could recover of the drawer, a sufficient time after the check was drawn not having elapsed, when plaintiff took it, to raise the presumption of dishonor, although the drawer and drawee were residents of the same city. Himmelmann v. Hotaling, 600.

2. When the drawer and drawee of a bank check reside in the same city or town, the reasonable time for presumptive dishonor should not be fixed within more restricted limits than the close of business hours of the day succeeding that on which payment might have been first legally demanded. Ib.

BREACH OF PROMISE TO MARRY.

In an action for breach of an oral contract of marriage, it appeared that plaintiff had been in possession of all the correspondence between the parties, and had destroyed or refused to produce a portion of it. Held, (1) that plaintiff might, notwithstanding, give in evidence any letters of defendant containing admissions of the existence of the contract, and of its breach by him; and (2) that plaintiff might give in evidence a letter replying to one which was destroyed or not produced. Stone v. Sanborn, 238.

BROKER.

1. A broker who purchases stock for another broker, whom he has reason to believe to be acting as agent, although for an unnamed principal, cannot hold the stock or its proceeds to secure the payment of a balance due him by such other broker. Fisher v. Brown et al., 235.

2. H told A to sell certain lots for $2,000. Held, that this was no more than a mere authority to A to find H a purchaser at the price named, and did not author

ize him to execute a contract of sale to D, the purchaser whom he found. Duffy v. Hobson, 617.

COMMON CARRIERS.

1. Carriers by vessels and railways are exempt from the duty of personal delivery; but the exemption does not extend to express companies, although availing themselves of carriage by rail, and such companies are bound to exercise due diligence in finding the consignee, or his place of residence or business. Witbeck v. Holland, 23.

2. In an action against an express company for failure to deliver a package, evidence as to whether the consignee was well known is admissible, on the question of due diligence. Ib.

3. Common carriers deliver property at their peril, and must take care that it is delivered to the right person, for, if the delivery be to the wrong person, either by an innocent mistake or through fraud of third persons, as upon a forged order, they will be responsible, and the wrongful delivery will be treated as a conversion. A qualified refusal, by a common carrier, to deliver goods on demand of one entitled to them, does not constitute a conversion if the qualification is reasonable and in good faith; and where the person making demand omits to produce any evidence of title or to identify himself as the consignee, it is a question for the jury whether the qualification is reasonable, and the true reason for not delivering the goods. McEntee v. The New Jersey Steamboat Co., 28, and note, 30.

4. Plaintiff purchased a ticket at a point on the New York Central railroad for New York, and received a check for his trunk accordingly. On the second day after his arrival in New York, plaintiff presented his check at the Hudson River railroad depot, and demanded his trunk, which could not be found. Held, that the New York Central railroad was liable on its contract of carriage for the proper storage of the trunk, although its liability as insurer had been changed by the delay in calling for the trunk to that of bailee. Burnell v. The New York Central R. R. Co., 61, and note, 66.

5. Plaintiff consigned an express package marked "C. O. D.," from New York to San Francisco. Defendants, an express company, received it, conveyed it to San Francisco, and on the 17th of March tendered it to the consignee and demanded payment. The consignee said he would receive the package and pay at some other time. The tender of the package and demand of payment were repeated by the company several times until the 16th of April, when the package was destroyed while in defendants' warehouse without their fault. Held, that defendants' liability was that of warehousemen only, and that plaintiff could not recover the value of the package. Weed v. Barney, 96. 6. Defendants received goods as the last of a series of connecting railroads, the first of which had contracted with plaintiff to transport the goods “all rail,” and to deliver them, "unavoidable accidents of the railroad and fire in depot excepted." Held, (1) that the terms of the contract permitted all necessary transportation by water, as by ferries, and that the connecting companies were entitled to the benefit of the exception in case of loss; but (2) that as defendants' line was out of the usual "all rail" route to destination, and required extended transportation by water, some twenty miles, they were not entitled to the benefit of the exceptions, but were liable as insurers in case of loss by one of the perils excepted. Maghee v.

The Camden and Amboy R. R. Co., 124, and note, 132.

7. Defendant, a carrier of goods destined to a point beyond its line, had transported them to the end of its route, and given the usual notice to the succeeding carrier, a line of vessels. The goods were destroyed on the evening following their arrival, and while in defendant's possession. Held, that, although the defendant was ready to deliver the goods to the succeeding carrier, yet it was liable as common carrier for a reasonable time, until, according to the usual course of business, a vessel of the succeeding carrier could arrive to take the goods. Mills v. The Michigan Central R. R. Co., 152.

8. A railway company may by contract assume to carry goods beyond its own line, and where such contract exists, the company will be liable as common carriers for the entire route. Hill Manufacturing Co. v. Boston and Lowell R. R. Co., 202.

9. The liability of a common carrier, as such, does not terminate until notice has been given to the consignee of the arrival of the goods, and a reasonable time has elapsed for their removal. Ib.

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LEGAL INCIDENTS OF A RAILWAY JOURNEY. In spite of the rule ad quæstionem facti non respondent judices it might reasonably be concluded from the cases of negligence which have within the last few years been argued in banco that the law of negligence is like the law of libel before Fox's act, when, according to the distich in vogue at the time, the bench were judges alike of the law and the fact." The impression is deepened by the fact that in the cases which come before the courts the jury have always already affirmed the fact of negligence, so that when they set aside the verdict they appear simply to disagree with the jury; and we do not find in the reports those cases in which alone the distinction between the respective functions of the law tribunal and the fact tribunal can be fairly exhibited—that is, where both judge and jury, in their several capacities, would agree that no negligence has been shown. Even where the court so far agree with the jury as not to disturb the verdict in favor of negligence, the ruling only affirms half as much as the verdict, being to the effect not that there was negligence, but that there was evidence of negligence. The distinction is, it must be confessed, in many cases rather fine. It is not, as might seem at first sight, a mere question of degree, such as the court decides upon a motion to set aside a verdict as against the weight of evidence. The truth of the facts is not at all in question, it being assumed that the evidence for the plaintiff was in accordance with the fact, the inference which may legally be drawn from the facts being the sole field of contention. Perhaps the distinction is best shown by stating the rule in the terms that it is for the jury to decide, whether the defendant did or did not act as he might reasonably have been expected to act under the circumstances, and for the court to rule whether there were facts imposing on the defendant any particular line of action at all.

It is the peculiarity of all cases on a well-litigated subject to run to a point. The peculiarity is well instanced in the familiar example of negligence in a railway company. First of all the general rule was laid down that, for passengers, railway companies are not, as for goods, liable as insurers, but are bound to take reasonable care only (Redhead v. Midland Company, 17

W. R. 737), a rule which, to those unacquainted with the origin of the law of common carriers, sounds as if the law had more regard for a man's chattels than his person. The explanation is, that the rule as to the absolute liability of carriers, now, as is well known, much modified, originated in the days when, to deliver one's goods to the mercy of a carrier, without some such security, was to expose them to spoliation at the hands either of the carrier's servants themselves or their thieving accomplices. The distinction between the carriers of goods and passengers once clearly established, we may imagine judges laying down generally, to juries, that railway companies are bound to use reasonable care. But the definition was in no way destined to end there, and, by means of motions to set aside verdicts for want of evidence, distinct duties are gradually being imposed on every thing which has a part to play in the course of a railway journey. No motion day passes, in the courts of common law, without a fresh instance of the law applying itself to some detail of railway necessity. First of all the general rule was narrowed to the effect that companies are not liable for latent defects, such as a flaw in the tire of a wheel (Redhead v. Midland Company); and it was held that juries may assume negligence when certain accidents are unexplained, such as a collision (Skinner v. London and Brighton Company, 5 Ex. 787), or a train running off the line. Carpue v. London and Brighton Company, 5 Q. B. 751. Then come a crowd of rules as to minutio. Companies must keep the flagstones over their coal cellars in a secure state (Holmes v. North Eastern Company, 17 W. R. 800), guards must not slam the door when a passenger is getting in (Fordham v. London and Brighton Company, 17 W. R. 896), but may shut it when the passengers are seated (Richardson v. Metropolitan Company, 16 W. R. 909), and hampers must not be left as stumbling-blocks in dark places along the "way out." Nicholson v. Lancashire and Yorkshire Company, 3 H. & C. 534. On the other hand, there are authorities that a railway company is not bound to keep the stand of a weighing machine flush with the platform (Cornman v. Eastern Counties Company, 4 H. & N. 781), nor to edge its staircases with lead, instead of brass nosing. Longmore v. Great Western Company, 19 C. B. N. S. 183. It may, indeed, be said that scarcely a door handle is turned, or a wheel hammered, in the course of a railway journey, but on the authority of a case in the exchequer chamber. Nevertheless, it would be impossible to frame out of all these instances a general proposition which could hope exactly to meet even one state of facts which may hereafter arise. One distinction, indeed, may be pointed out, which binds railway companies to a degree of diligence correlative to the character of the object upon which it is exercised. With regard to every thing concerned in actual traveling, they are bound to the strictest diligence in insuring safety. This rule is so well ascertained, and admits of application with such comparative ease, that few questions on the point now arise. To recur, for illustration, to a case already mentioned, if the brassnosing, used on the stairs instead of lead, had been employed in any detail of locomotion, and an accident ensued, the company would clearly have been liable. With respect to other details of railway management, the company, not having a constant possibility of accident before them, are bound merely to the ordinary care of all owners of property inviting the visits of the public.

One branch of the subject, which may be said to partake of both parts of the distinction, may now be considered thoroughly worked out. We shall probably hear very little more in banco of platform accidents and the invitation to alight, subjects which have of late much exercised the courts, both of first instance and appeal. The theory of the invitation to alight supplies a good illustration of the ingenious shifts, to which plaintiffs injured in a railway journey have been put, to justify the verdict of sympathetic juries. It was suggested that when a porter calls out the name of a station he thereby invites the passengers booked to that station to get out of the train, and tells them that they may get out safely. The suggestion attributes a power of concise expression to the porter worthy of Lord Burleigh himself, and was negatived, one would have thought, by the common experience that the name of a station is usually called out sometime before the train stops. In Bridges v. North London Company, 19 W. R. 824, the doctrine met its reductio ad absurdum. There the plaintiff's husband was killed in getting out of a train which had stopped at Highbury station from a carriage twenty feet within the tunnel. The evidence of negligence was that some one in the next carriage heard a porter call out "Highbury." Blackburn, J., nonsuited the plaintiff, but in deference to a remonstrance from the jury reserved leave to move the court of queen's bench, which, as well as the exchequer chamber on appeal, affirmed the nonsuit. Similarly there was held to be no evidence of negligence in Siner v. Great Western Co., 17 W. R. 417, where an excursion train overlapped the platform, and a passenger jumped out in broad daylight, straining her ankle. On the other hand, where there was a request to the passengers in terms to get out, the company were held liable for an accident occurring through there being no platform. Foy v. London and Brighton Company, 13 W. R. 293, 18 C. B. N. S. 225. Intermediately between these two cases come Petty v. Great Western Company, L. R., 5 C. P. 461 (note), and Whittaker v. Manchester and Sheffield Company, L. R., 5 C. P. 464 (note). In the first case the plaintiff was hurt by mistaking in the dusk a white footway, opposite which his carriage had stopped and which led to a signal box, for the platform, and a new trial was ordered to enable the question whether he really mistook the path for the platform to be put to the jury. In the other case the likelihood of the plaintiff's mistake seems less, as it was the parapet of a bridge that he mistook for the platform. In that case the verdict of negligence was upheld by the common pleas, which seems less inclined than the other courts to disturb a jury's decision. In two very recent cases, also in the exchequer chamber, the verdict was allowed to stand, that is Præger v. Bristol and Exeter Company which was referred to at length in the other case (Cockle v. London and South Eastern Company, 20 W. R. 754). In both cases the platform, instead of continuing parallel to the lines, gradually receded from them, and the injured man stepped out in the dark. The only difference between them was that in the first case a porter opened the door of the carriage to the passenger. So lately as Monday last another platform case was argued in the court of exchequer (Leek v. Great Eastern Company-the facts of which were in general similar to those of Siner v. Great Western Company), but as the accident was caused by a switchhandle standing close to the carriage, and there was some evidence that the train was in the habit of stop

ping where it did instead of at the platform, the majority of the court were of the opinion that there was evidence of negligence.

To attempt to extract a principle of law from reported cases of such a kind would be ill advised. The cases on this point are best summed up as we summed them once before, by saying: The passenger must look before he leaps, and if he cannot see, must not leap till he is told to leap. What is to be considered as an invitation to leap is but a question of fact, though it may (on question of nonsuit, for instance) be a question of law, whether there is evidence to go to a jury on that question of fact. To this may be added that, if any circumstance is to have particular prominence given to it, the stopping of the train is to be looked on as the invitation to alight rather than the calling out of the name of the station. A very simple state of facts illustrating this rule occurred a short time since in a case tried before the judge of the Brentford county court. The train stopped, and after a minute's pause went on with a jerk, injuring the plaintiff as he was getting out. Under the direction of the judge the jury found a verdict for the plaintiff.

It is clear that the courts have gone far in correcting the stringent view of the duty of railway companies which juries are naturally inclined to take. In Whittaker v. Manchester and Sheffield Company, Willes, J., seemed to think they had gone too far. He says, 'I must not be supposed to agree with the majority of the court in Bridges v. North London Company, remembering the necessity for keeping distinct the questions of fact and law, and I cannot now understand how it could be said as a matter of law that the calling out of the name of the station was not an invitation, since the inference to be drawn from it must depend upon all the circumstances of the case." Still the courts are probably right in refusing to recognize, as proper for the consideration of the jury, the two " circumstances of the case upon which the determination of the question of negligence so often depends, the circumstance that the plaintiff is deserving of pity, and the circumstance that the defendant is a railway company. The true principle seems to be that it is the right of the jury to infer negligence from all the circumstances as a matter of fact, but where there are no circumstances pointing to legal negligence, it is the right of the court to assume that they misunderstood the definition laid down for them, and to say that the verdict is bad as a matter of law. Solicitors' Journal.

THE VALUE OF A NAME.-An affair of great importance, as far as the interests at stake are concerned, is about to be tried in one of the large commercial towns of the north of France. It appears that in the country which is to be the scene of this litigation there are so many persons of the same name that the custom prevails for the husband to add his wife's patronymic to his own. Some time ago a M. Cornu married his cousin, Mdlle. Cornu, and after the fashion of the country styled himself Cornu-Cornu. A Parisian clerk, having to address a quantity of goods to the merchant in question, directed them to M. Bis-Cornu (which may be either interpreted "twice Cornu," or "outlandish "), and the insulted gentleman refused the goods, which, being perishable, were lost. In the action which is about to be tried the jury will have to decide whether M. Cornu-Cornu was justified in refusing the merchandise forwarded to him, for a joke.