At the trial, the judge charged the jury, that the verbal contract for a lease was void and could not be enforced, but that the plaintiff was entitled to recover the value of his services; furthermore, that they could not resort to the contract to determine the value of the services, and that on this subject they must leave out of view the evidence which had been given respecting the contract and the value of the lease. Verdict for $2000. Justice Mitchell, at special term, granted an order for a new trial, from which the plaintiff appealed. Plaintiff's counsel insisted, 1st, that the parties having themselves agreed that the compensation for the services should be a lease, evidence of the pecuniary value of the lease is a proper, and the only legal mode of determining the compensation. for the services; 2d, that an agreement, void by the Statute of Frauds, is competent evidence, where a right of action has arisen from its full or partial execution, (Burlingame v. Burlingame, 7 Cowen, 92); 3d, that the performance of the contract by the plaintiff takes the case out of the statute; 4th, that the defendant by accepting the performance is estopped from pleading the statute. New trial denied.

Roosevelt, J., dissenting, insisted that the alleged value of such a lease as this, could not be given in evidence, as the measure of damages in an action for alleged services rendered. To allow such evidence would be in effect to make valid the contract, and to make void the law.

H. Smales, for plaintiff.

C. W. Sandford, for defendant.

CORPORATION OF THE METHODIST EPISCOPAL CHURCH v. BARKER. Pleading-Demand presumed after verdict.

Action against the defendant and his associates, as sureties in an undertaking executed by them, on behalf of one Hicks, upon an application by him for an injunction against the plaintiffs.

It was suggested, on the argument, that a demand should first have been made of Hicks. Although not averred in the complaint, the omission was not objected to in the defendant's answer; nor was it made a ground of exception at the trial. Upon the bill of exceptions, therefore : Held, that the court must presume the demand to have been made, and proof of it to have been given or waived.

Mott and Carey, for plaintiffs.

W. R. Stafford, for defendants.

Agreement

AMENN v. CROSBY.

Statute of frauds - Debt of another.

The defendant purchased a circus establishment of Johnson & May, and accepted a delivery of the horses, &c., promising as part

of the price, to pay off the debts then due. One of these debts was for the services of the plaintiff.

Held, that such a promise is not an undertaking to pay the debt of another, but to pay the party's own debt, and is not within the meaning of the Statute of Frauds, and need not be in writing, and the parties beneficially interested in its performance may sustain a suit upon it in equity, if not at law. Olmstead v. Greenly, 18

Johns. R. 12.

D. B. Taylor, for plaintiff.
E. C. Benedict, for defendant.

DYKERS v. Townsend.

Agency-Statute of frauds - Sales of stock.

An agency to purchase stock for another is not required by law to be in writing. And although the contract of purchase when made must be evidenced by some written note or memorandum, the name of the principal need not be mentioned in it; nor need it be signed by the agent as agent; it is sufficient to show that in signing he acted as agent, and that he had the requisite power to bind his principal. An omission to name the principal in such cases, renders the agent liable as principal, but does not exempt the actual principal, when discovered. Parol evidence is admissible to show that the person signing the memorandum, acted as the agent of the defendant.

This is adverse in part to the decision of the Superior Court, in Fenly v. Stewart, 5 Sandford, 101.

Greene C. Bronson, for plaintiff.
Charles O'Conor, for defendant.

WEEKS v. Lowerre.

Slander-Imputation of felony.

Where one of two partners having filled up a check on his private bank account, and being suddenly called off, throws it into the desk of their counting-room, from which the other partner secretly abstracts it and draws out the money from the bank, applying it to his own use, and denying all knowledge of the fact

the act is a felony. And if either partner, in conversation with a third person, falsely charges such an act upon his copartner, whether in direct words or by insinuation, the slander amounts to a charge of felony, and is actionable per se, without showing special damage; and that, too, notwithstanding the evidence shows that the lost check was a partnership liability to pay a partnership debt, though signed by the plaintiff in his own name.

There was no error, therefore, in the ruling of the judge at the circuit; and although the verdict (for $2000) may seem, under

all the circumstances, rather heavy, the court, especially after four trials have been already had, do not feel warranted in disturbing it.

James T. Brady, for plaintiff.

J. Graham, for defendant.

RUHL v. MULLER.

Partnership Confession of judgment.

Muller gave a written confession of judgment, and a written authority to enter it against him, "as one of the late firm of Thorn & Muller."

Held, that to bind him "as one of the firm," meant to bind not only him individually, but the partnership property. This was done by entering it against both partners.

United States District Court. November 19.

Before BETTS, J.

UNITED STATES v. NAYLOR.

History and construction of the statutes in relation to the slave tradeAct of March 22, 1794, is still in force.

BETTS, J.-The defendant was arrested upon capias for a fine and penalty imposed by the Act of Congress of March 22, 1794, (1 Statutes at Large, 349 – 352,) and is held to bail under an order of a judge of the court.

upon

the arrest

He now applies to the court to discharge the arrest and action on the ground that the act of 1794 is no longer in force. The statute has not been expressly repealed by Congress, but the argument insists that the subsequent legislation on the matter amounts to a repeal by implication.

A collation of the statutory provisions on the subject will bring the point distinctly to view, and tend to solve the question more satisfactorily than a diffuse dissertation upon the general theme touching the operation of posterior enactments in working a repeal of antecedent ones.

The provisions of the act of 1794 relate (1) to the consequences to the ship, directing if the master, factor or owner shall build, equip, load, or otherwise prepare any ship or vessel within the United States, or shall cause her to sail from any port of the United States for the purpose of procuring from any foreign country inhabitants thereof, to be transported to any foreign country, to be sold as slaves, &c., the penalty of forfeiture of the vessel. (2) The punishment of every person "so building, fitting out,

equipping, loading, or otherwise preparing or sending away any ship or vessel, knowing or intending that the same shall be employed in such trade or business," penalty $200 fine.

Vessels suspected of being intended for the slave trade, required to give bonds on clearing out for the coast of Africa not to receive natives of the coast on board within nine months.

A forfeiture imposed of $200 each for all persons taken on board for the purpose of selling them as slaves.

The title of the act is "An act to prohibit carrying on of the slave trade from the United States to any foreign place or country."

The succeeding act of March 2, 1807, is entitled: "An act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States," &c.

The act in ten consecutive sections enacts provisions for enforcing that purpose.

The second and third sections adopt the language of the first and second sections of the act of 1794, with the difference that the prohibition in one applies to transporting persons from one foreign place to another, to be held and sold as slaves, and in the other the particular classes of persons are designated, and the prohibition is for causing them to be transported to any place within the United States, to be sold and held as slaves. The penalty upon the ship is the same in each statute, but, on the persons, the fine in the act of 1807 is $20,000.

This statement of the provisions of the two statutes demonstrates that they no way conflict with each other. They look to wholly different objects, and are leveled against distinct offences, the first acting against the slave trade abroad and applying to the transportation of inhabitants of one foreign country to be sold to slavery in another foreign country, without discrimination of color; and the other being limited to negroes, mulattoes, or persons of color, and the dispatch of vessels from the United States to any foreign port or place for the purpose of procuring such persons to be transported from such foreign country to the United States, to be held to service or labor.

The interpretation of the latter act, as operating a repeal of the former, contended for by the defendant, cannot, accordingly, be maintained.

The act of April 20, 1818, is entitled: "An act to prohibit the introduction (importation) of slaves into any port or place within the jurisdiction of the United States, &c., and to repeal certain parts of the same," and by the tenth section the first six sections of the act of 1807 are repealed.

Within those repealed sections are included the provisions above adverted to, and it is manifest that, inasmuch as they did not when in force affect the enactments in the act of 1794 upon a correlative subject, their absolute repeal can have no legal bearing upon those

enactments. Congress framed the two statutes diverso intuitu, the one in relation to the foreign slave trade, and the other to the domestic.

The act of 1818, as its title denotes, has exclusive reference to the importation of slaves into the United States. It goes beyond the repealed act of 1807, in embracing foreign vessels in the interdiction, but it introduces no description of offences which are prohibited by the act of 1794. Its enactments may be so directly in pari materia with those included in the repealed sections of the act of 1807, as to amount to an implied repeal of those provisions, if no express repeal had been declared, but as before shown, the existence or removal of the act of 1807 no way touches the act of 1794, in the particulars in question.

It is to be observed that there is a further radical distinction between the enactments on this subject in both the preceding acts. The offence therein created and described, upon which the pecuniary punishment was to be inflicted, was the fitting out or sending away a vessel, "knowing or intending that she should be employed" in such trade or business. But in the act of 1818 the offence consists in fitting out or sending away the vessel, or procuring it to be done, "with intent to employ such ship or vessel in such trade or business."

The distinction between these transactions is palpable. The guilt of the one is equipping or sending away a vessel for the purpose of enabling third persons to employ her in the forbidden traffic; and of the other, the immediate and personal participation in the crime by the party accused, fitting out or sending away the vessel with intent to employ her in the illicit trade.

The Supreme Court regards this distinction as cardinal, and holds that the two phrases are not convertible in a true interpretation of the Act of Congress. United States v. Gooding, 12 Wheat. 460. I am, therefore, of opinion that the Act of Congress of March 22, 1794, § 2, upon which this action is founded, remains in full force.

The motions on the part of the defendant are accordingly denied.

Superior Court. General Term. Nov. 7.

Before OAKLEY, C. J. and SLOSson, J.

PAYNE v. RIDGWAY.

The law of pensions-No right to pledge a certificate.

SLOSSON, J.-The question is, whether a widow, entitled to pensi on under the act of Feb. 3, 1853, (10 Stat. at Large, 154,) can pledge her certificate to the person who acted as her