the plaintiff got differed, as a blank, from the other blanks of the defendant company which the plaintiff was accustomed to use. We think that upon these facts, which are undisputed, the plaintiff must be held to have assented to the limitation of the defendant's liability contained in the receipt. It is settled in this state, at least, that a common carrier may limit its liability in case of loss by stipulations concerning the value of the property which it undertakes to convey. Graves v. Railway Co., 137 Mass. 33; Hill v. Railroad Co., 144 Mass. 284, 10 N. E. 836; Hart v. Railroad Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Ballou v. Earle, 17 R. I. 441, 22 Atl. 1113, 14 L. R. A. 433. The only qualification is that the stipulation shall be brought home to the knowledge of the shipper under such circumstances that his assent to it can fairly be assumed to have been given. And, if he accepts and acts upon it without dissent, he will be presumed to have agreed to it. Cox v. Railroad Co., 170 Mass. 129, 49 N. E. 97.

It appeared at the trial that the words, "Value asked, and not given," had been stamped on the receipt. There was testimony tending to show that this was done by the messenger without the knowledge or consent of the plaintiff. The plaintiff testified that, if the value had been asked, he would have given it. But assuming that the words were not on the receipt when it was handed to the plaintiff by his clerk, and that they were not stamped on it with his knowledge or consent, and that the value was not asked, it would follow that the plaintiff was content to accept a receipt which contained no valuation, and to let the paintings go without giving a valuation. The stamping of the words upon the receipt did him no harm, therefore, and was an entirely immaterial circumstance, even though, if he had been asked, he would have given the value. The messenger was not required to ask the value, and, in the absence of any dissent from the terms of the receipt, we think that the plaintiff was bound by them. Exceptions overruled.

(176 Mass. 285)

DOHERTY v. ANCIENT ORDER OF HI-
BERNIANS WIDOWS' & OR-
PHANS' FUND.

(Supreme Judicial Court of Massachusetts. Suffolk. June 5, 1900.)

INSURANCE-BENEFICIAL ASSOCIATIONS-SUB

STITUTED CERTIFICATE-INVALID DESIGNATION OF BENEFICIARY-RECOVERY BY ESTATE EFFECTUAL SUBSTITUTION.

Where a benefit certificate providing for payment to a beneficiary who had no insurable interest in the member's life, if living, and, if not, to the heirs at law of the member, was substituted for a certificate previously issued in the same terms, except that a different beneficiary was named, who had since died, a recovery may be had on the substituted certificate by the executrix of the member, though the designation of the beneficiary was invalid, since such desig

nation was as though no designation was made, and the substitution was effectual as between the member and the association.

Exceptions from superior court, Suffolk county; John Hopkins, Judge.

Action by Mary Doherty, executrix of the will of Felix Gallagher, against the Ancient Order of Hibernians Widows' & Orphans' Fund, to recover on a certificate of insurance. There was a judgment for defendant, and plaintiff brings exceptions. Sustained.

Geo. W. Anderson, for plaintiff. John W. Corcoran and W. B. Sullivan, for defendant.

MORTON, J. There were two certificates issued in this case,-the first bearing date November 12, 1895; and the second, June 15, 1897. Both were issued to Felix Gallagher, and were in all respects the same, except in regard to the dates and the names of the beneficiaries. In the first Rose Gallagher, a sister of Felix, was named as the beneficiary. She died, and at the request of Felix that certificate was taken back by the defendant, and another was issued, in which Michael J. Quinn was named as beneficiary, Gallagher paying the fee required by the change. The declaration is upon the second certificate, and the action was originally brought in the name of Quinn. It appeared at the trial, however, that Quinn was not a relative or dependent of Felix Gallagher, and the writ was amended by striking out the name of Quinn, and inserting that of Mary Doherty, executrix of the will of Felix Gallagher. Each certificate bound the defendant to pay, in 60 days after due proof of the death of Felix Gallagher, to the beneficiary, "if living, if not to the heirs at law of said member, a sum equal to the amount received from one death assessment, not to exceed one thousand dollars." There was evidence tending to show that due proof was made of Felix Gallagher's death, and that a death assessment exceeded $1,000. The court directed a verdict for the defendant, and the case is here on plaintiff's exceptions.

If Michael J. Quinn had been designated as the beneficiary in the first certificate, and no other certificate had been issued, it is clear that the invalid designation would not have affected the right of the executrix to recover. Elsey v. Association, 142 Mass. 224, 7 N. E. 844; Rindge v. Association, 146 Mass. 286, 15 N. E. 628; Burns v. Grand Lodge, 153 Mass. 173, 26 N. E. 443; Shea v. Association, 160 Mass. 289, 35 N. E. 855. And, if the second certificate was effectually substituted for the first, we do not see why an invalid designation in that should have any different effect from what it would have had in the other. The question, then, is whether there has been an effectual substitution. It was assumed in Golden Cross v. Merrick, 163 Mass. 374, 40 N. E. 183, that in case of an effectual substitution an action

would lie upon the later certificate. It is not necessary, we think, that, in order to entitle a party to recover upon a later certifi cate, it should appear that the substitution was effectual for all purposes. It is sufficient if it appears that it was effectual in respect to the right that is asserted. A substitution may be effectual as between the member and the corporation or association that would be ineffectual as between beneficiaries. In the present case the action is brought by the executrix of the member. There is no question between beneficiaries involved. The designation contained in the certificate being invalid, the certificate is to be taken as if it contained no designation whatever; in other words, as an agreement to pay the heirs at law of the member, in 60 days after due proof of his death, a sum equal to the amount received from one death assessment not exceeding $1,000. The certificate did not create a new obligation. It was issued in respect to the same obligation as that in respect to which the first was issued; and, as between Felix Gallagher and the defendant, we do not see why there was not an effectual substitution of the second certificate for the first. We think therefore, that the exceptions should be sustained. So ordered.

(176 Mass. 287)

HURLBURT v. FITZPATRICK et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 5, 1900.)

VENDOR AND PURCHASER -WRITTEN CONTRACT-CONDITIONS-WAIVER PURCHASE MONEY FORFEIT — STATUTE OF FRAUDSEXTENSION OF TIME CONSIDERATION AGREEMENT.

1. Where a vendor agrees in writing to sell lands, and, on the vendees' being unable to comply with the contract, a written modification is made, whereby the vendees are to pay less, and the vendor is to convey subject to a mortgage, and it then develops that there are two outstanding mortgages, and on being presented. with the deed and discharges of the two mortgages the vendees request that the mortgages be extended, and afterwards request further time for themselves, the request for the extension of the mortgages is a waiver of the vendees' excuse for nonperformance that there were two mortgages instead of one, and such excuse cannot be urged as a defense to the vendor's action for a forfeit payable on the vendees' default.

2. Where a vendor agrees in writing to sell land, and the vendees deposit part of the purchase price with a third person, and, on being unable to comply with their agreement. secure an extension of time, agreeing orally that, if they make further default, the money so deposited shall be paid to the vendor as a forfeit, and they do make default, the oral agreement is not void, as within the statute of frauds, and the depositary is liable for the money at the suit of the vendor.

3. Where, in consideration of a further extension of time to enable vendees to comply with their contract of purchase, they agree that if they finally default a deposit of purchase money then in the hands of a third person shall be paid to the vendor as a forfeit, the extension of time is a sufficient consideration for such agreement, so as to sustain a suit by the vendor against the depositary to recover the deposit

on the vendees' default, the depositary holding it thereafter as money had and received to the vendor's use.

Exceptions from superior court, Suffolk county.

Action for money had and received by Bezy Hurlburt against John B. Fitzpatrick, Mark Lewis, and Morris Bravman. From a judgment in favor of plaintiff, defendants Lewis & Bravman bring exceptions. Affirmed.

F. R. Rogers, for plaintiff. E. A. McLaughlin and J. A. Brett, for defendants.

MORTON, J. The plaintiff entered into a written agreement dated December 7, 1898, with one Mark Lewis, acting for himself and one Morris Bravman, to sell and convey to said Lewis certain land therein named, on certain terms therein set forth. The deed was to be delivered January 7, 1899. The $500 which is the subject of this suit was deposited by said Lewis & Bravman in the hands of the defendant Fitzpatrick as part of the purchase price, and was to be paid over by him to the plaintiff at the expiration of 30 days. Lewis & Bravman were unable to carry out this agreement, and on January 11, 1899, another written agreement was entered into between the plaintiff, acting by her attorney, and Lewis & Bravman, modifying the terms of the first agreement, and extending the time of performance to February 1, 1899. By this agreement, if Lewis & Bravman were unable to carry out the agree ment of December 7th, they were to pay $2,000, and give a second mortgage of $12,072, and the plaintiff was to convey subject to a mortgage held by one Miss Pope. As a matter of fact, it turned out that Miss Pope held two mortgages, both overdue. If Lewis & Bravman were unable to perform the contract as thus modified, then Mr. Fitzpatrick was to pay over to the plaintiff, after February 1st, the deposit held by him. February 1st the plaintiff appeared by her attorney, at the time and place agreed on, with a deed running to Lewis, as he had requested, and conveying the property, subject to the two mortgages, to Miss Pope, and Lewis & Bravman were informed at or about the same time that he (the attorney) had discharges of these mortgages ready for them. There was no objection to the form of the deed. Lewis & Bravman were unable to perform their agreement at this time, and asked plaintiff's attorney to wait, and he agreed to do so, and on the following day they requested him to procure an extension of the two Pope mortgages, which he did, and submitted the extension to the attorney of Lewis & Bravman, who approved it, and it was then executed, acknowledged, and delivered to plaintiff's attorney by Miss Pope. Afterwards, Lewis & Bravman asked the attorney of the plaintiff to wait till March, and he agreed to wait till March 1st; Lewis & Bravman saying that if they were not ready they authorized Mr. Fitzpatrick to pay over the money. On

March 1st the plaintiff was ready at the place appointed to deliver the deed, but Lewis & Bravman did not appear.

We deem it enough to say, without taking up the requests seriatim, that upon these facts, and the other evidence before him, the judge who heard the case was well warranted in finding in favor of the plaintiff. If the proper construction of the agreement of January 11th was that the property was to be conveyed subject to one mortgage to Miss Pope, that objection was waived by the request of Lewis & Bravman to the plaintiff's attorney that he would procure an extension of the two mortgages held by Miss Pope, and his compliance with that request removed the objection, if any, which they might otherwise have had. The subsequent oral modifications of the agreement of January 11th were not within the statute of frauds. Cummings v. Arnold, 3 Metc. 486. There was ample consideration for the agreement of Lewis Bravman that, if they did not perform their agreement, the money in Mr. Fitzpatrick's hands should be paid over to the plaintiff by him, and, after the default by Lewis & Bravman of March 1st, he held it as money had and received to the plaintiff's use. Exceptions overruled.

(163 N. Y. 250)

PEOPLE v. ZIGOURAS. (Court of Appeals of New York. June 5, 1900.)

HOMICIDE-EVIDENCE

CROSS-EXAMINATION

-THREATS-INSTRUCTION.

1. Where a witness for defendant testified that the character of the deceased for violence was bad, and the state on cross-examination brought out the fact that the witness and deceased had been involved in trouble, it was error to refuse to allow the witness on redirect examination to explain what the trouble was. 2. Where defendant testified that, when he shot the deceased, the latter was approaching him, with a poker raised to strike him, saying, "You will give me $10, or I will take your head," to refuse an instruction that the jury might consider any threats that the deceased had made to the defendant that he would kill or injure him. in determining whether defendant had reasonable grounds for believing that he was in imminent danger of death or great personal injury, was error.

Parker, C. J., and O'Brien and Haight, JJ., dissenting.

Appeal from court of general sessions, New York county.

John Zigouras was convicted of murder in the first degree, and he appeals. Reversed. William F. Howe, for appellant. Charles E. Le Barbier, for the People.

LANDON, J. The defendant, a Greek, a maker of flowers, on the 18th day of February, 1899, in the kitchen where he at the time was serving his employers, Nickelos and Minaky, as cook, on Fifteenth street, in the city of New York, in the presence of a Frenchman named De Varney, fired four pistol shots into the body of another Greek, named Fer

57 N.E.-30

antos, also a maker of flowers, and killed him. This is not denied. The defendant and his counsel admit it. De Varney was a music teacher, disabled at the time by a broken arm. He and Ferantos roomed together on Thirteenth street. He did not understand Greek. He testified: That, about 20 minutes before the shooting took place, Ferantos and himself, having that forenoon already made some calls in a social way at places where one or the other was familiar, at the suggestion of Ferantos, called upon the defendant. That the defendant greeted Ferantos, and talked with him in Greek, but did not speak to the witness. That after about 5 minutes the defendant placed a plate containing a stew upon the table, gave each one of them a fork, and invited them to eat. This they did, each sitting upon a separate small bench. Another Greek, named Floris, came in, and the defendant served him with a stew, and then went outside. While Floris was eating his stew, Ferantos asked him to go out and get him a pint of beer, and gave him the money to pay for it. Floris went out and got the beer, and gave it to Ferantos, and sat down and finished his stew, and went out. That then the defendant came in, and passed between the witness and Ferantos, through an open door, into an adjoining bedroom, where the defendant usually slept, and, without saying a word, fired from the bedroom upon Ferantos, while he was sitting upon the bench drinking the beer. That Ferantos fell off the bench upon the floor, and the defendant then advanced, and fired the other shots into his body as Ferantos lay there. De Varney testified that, before the shooting, there was no appearance of hostility or unfriendliness between the defendant and Ferantos. Floris left before the shooting, and did not hear it. He corroborated De Varney as to what occurred while he was in the defendant's room. The defendant was soon after arrested and taken to the police station, where he was examined through one Zerco, an interpreter, by the police captain or in his presence. The captain wrote down the defendant's statement as the interpreter rendered it, and the defendant signed it. It is as follows:

"Police Department of the City of New York, Precinct No. 19, New York, Feb. 18, 1899, 6:45 p. m. John Zigouras states through interpreter that about three days ago Peter Minaky gave him $13 to buy a revolver, and when Ferantos would come in our room to shoot and kill him. The next day in the room Peter Minaky and myself were talking over the matter. Afterwards, on the street, I met Nickelos, who told me that Minaky had gave me money to buy a pistol, and to go ahead and shoot him. Peter Minaky told me he would get a lawyer to defend me, and nothing more would be heard about it. Both Nickelos and Minaky advised the killing of Ferantos, and aided me by advancing money to buy the pistol with which I did the killing. Personally I never had trouble with Ferantos,

or no cause to injure him. I did it to please Nickelos and Minaky. John Zigouras.

"Sworn to before me this day, at 7:22 p. m., February 18, 1899. Walter L. Thomson, Inspector of Police."

The defendant was a witness in his own behalf on the trial. He testified that he did make the above statement to the interpreter at the police station, except that he did not say that he shot Ferantos to please Nickelos and Minaky. He testified that a young Greek, a stranger to him, not the interpreter, Zerco, first came to him in the police station and talked Greek to him, and advised him to make such a statement. He also testified: "I was very much frightened, and I didn't know where I am, and in what condition I am, and that man talked to me in Greek, and I told him the story, and he said, 'You are a fool to tell it in that way.' That a young Greek, not produced as a witness, did converse in Greek with the defendant at the police station, before Zerco, the interpreter, arrived, was shown by other witnesses. The police captain tried to use him as an interpreter, but he spoke English so imperfectly that the effort was abandoned. The policeman, Casassa, who arrested the defendant, testified that the young Greek interpreted the defendant as saying that, "when Ferantos came into his room, the defendant told him to get out, and, instead of getting out, Ferantos took a weapon and went to hit him, and that he then took the pistol from his pocket and shot him." Several witnesses testified to the effect that the interpreter, Zerco, was directed to inform the defendant that he need make no statement, as it could be used against him; and the interpreter, Zerco, testified that he did fully so inform him. The defendant did not testify at all upon this point. The defendant, in his testimony, gave substantially the same version as did De Varney of what took place in the kitchen up to the time that Floris finally left it. He testified: That thereupon Ferantos said to him, "You will give me ten dollars," and defendant replied, "I haven't got ten dollars to give you; when I had money, I always gave it to you, but I haven't any now to give you." That Ferantos then said in Greek, referring to De Varney, "This here is a detective,-a detective policeman,-who is with me," and defendant again said, "I haven't any money to give you." That Ferantos then told De Varney to lock the door, and De Varney got up and put his back against it, and then Ferantos, said, "Now, you will give me ten dollars or I will take your head," and that he took a poker belonging to the stove, and lifted it up as if to strike him, and again said, "You will give me ten dollars, or I will take your head." That the defendant then said, "Don't kill me! don't kill me, Mr. Ferantos!" and shouted, "Help! help!" That the defendant retreated into his bedroom, followed by Ferantos, who held the poker so as to strike him, and that defendant then took his pistol, which was under his pillow, and

shot Ferantos. He added, "I thought that, if I did not, he would kill me." The defendant was corroborated as to his cry for help by one Manoucas, also a Greek, who testified that he heard his cries, and recognized his voice; but the jury evidently did not believe him. No poker was found in defendant's rooms. A broken beer glass was found under the body of Ferantos as he was lifted up. A search disclosed that Ferantos had some money, a diamond stud, a watch and chain, but no weapon upon his person. The autopsy tended to show that at least one of the shots was fired into the prostrate body of the deceased. Ferantos was large and tall; the defendant, a small man. Evidence was given tending to show that Ferantos' character for violence was bad, and that the defendant's character was good. The case was clearly one for the jury, and, but for the exceptions now to be noticed, the judgment should be affirmed.

One Kusobalos, a witness for the defense, testified that the character of the deceased for violence was bad. On cross-examination by the people, the witness testified that he had considerable feeling against the deceased, and added: "I don't like him, because he treated me very badly. I treated him well. I gave him to eat and drink. He nearly killed me in his room. Q. You had a little trouble with him? A. Yes, sir; I was afraid of him,"-and he pointed to a scar on his own forehead. Redirect: "I ask you to state what that trouble was. (Objection. Sustained. Exception.)" The trouble was a new fact brought out by the people upon cross-examination. Confessed and unexplained, it tended to impair the force of the direct testimony. The trouble stated and understood might have removed or lessened the discredit which it tended to produce, might have restored the direct evidence to its original force, and possibly have increased its force. It was clearly competent. The general rule is that a witness may upon redirect examination explain the new facts brought out upon cross-examination. People v. Buchanan, 145 N. Y. 24, 39 N. E. 846; Clark v. Vorce, 15 Wend. 193. The main objection to permitting this explanation is one of convenience. Of course, the trial should not be prolonged or the real issues obscured by the trial of false or immaterial ones. This calls for the exercise of good seuse upon the part of the trial court in limiting the details of the explanation, but it does not call for its exclusion. The cases cited tending to support the latter proposition are of other jurisdictions. While the range in details to which the re-examination may extend should rest largely in the discretion of the court, to the end that immaterial issues may not arise, enough should be permitted to prevent a part of the truth from conveying a false impression. We cannot say that the defendant's case was not prejudiced by the ruling.

The defense requested the court to charge the jury "that they may consider, in determining as to whether the defendant had reasonable grounds for believing that he was in imminent danger of death or great personal injury from the deceased, that the deceased, prior to the shooting, had made threats to the defendant that he would kill or injure him." The court said: "Refused, because the basis for making it is not borne out by the evidence." We have already set forth the testimony of the defendant as to the threats made by Ferantos immediately before the defendant shot him. The threats of the deceased, if the jury should have found that there were such, should have been considered by them in determining whether the defendant had reasonable grounds for believing that he was in imminent danger of death or of great personal injury. The defendant would naturally act upon appearances, and the law judges the act from the standpoint of the defendant's reasonable apprehensions from the appearances. To hold that there was no basis in the evidence for such a request might have been understood as holding that the defendant's testimony was not true. It is suggested that the court could understand the request as referring to threats upon some former occasion, of which there was no evidence. Such misunderstanding by the court would no less prejudice the defendant. This is a capital case. The evidence presents a crime of naked and motiveless enormity. The defendant's previous good character is so attested that we naturally look for some justification or excuse. defendant proffered the justification or excuse of threatening acts of violence, made more alarming by the threatening words accompanying them, and he properly asked for an explicit instruction as to his right to act according to the import of the threatening words. It may be that other parts of the charge can be construed as covering and complying with this request; but the difference between a direct charge upon this point, and a general charge, in which the point needs to be discovered and identified by constructive processes, may involve the life of the defendant. It is quite possible that this case has another side than the one upon which the defendant has been convicted. Therefore, we should not be swift to destroy, but indulgent, rather, to the defendant's prayer for another trial. We think that for these errors a new trial should be granted.

The

In view of a new trial, we think it proper to say, with respect to the written statement signed by the defendant at the police station, that, upon the whole evidence touching it, it is far from clear as a matter of fact-still less as a matter of law-it was voluntarily made. It was received in evidence before the defendant had testified respecting it, and without any request by his counsel that he should be permitted to testify. In this respect the case differs from People v. Fox, 121

N. Y. 449, 24 N. E. 923, and we do not hold that it was error to admit the statement; but, in view of the testimony subsequently given by the defendant respecting it, we think it was the defendant's right to have it submitted to the jury whether the statement was a voluntary one, with the instruction to disregard it if they should find that it was not. The statement charges Minaky and Nickelos with instigating the murder, and furnishing defendant with money to buy the pistol to accomplish it. Minaky was a witness for the people, and testified that he furnished the defendant with no money to buy a pistol, but was not asked respecting his alleged instigation. Nickelos was not called. Apparently this part of the defendant's written statement was assumed to be false. Defendant testified that it was. But, if so assumed, the testimony of the defendant as to his motive or the provocation given him is all that remains to show why he shot the deceased. The case in this respect is quite unlike People v. Meyer, 162 N. Y. 357, 56 N. E. 758. There the confession of the defendant was so completely in harmony with all the facts and circumstances otherwise proved as to carry conviction to the mind that the defendant voluntarily made it, because, as he in effect expressed it, it was of no use to make a denial, or tell anything but the truth, because the facts spoke for themselves. The defendant did not request that the question whether the statement was a voluntary one be submitted to the jury, and thus perhaps waived his right. We need not decide, as upon a new trial the question may not arise. The testimony of the witness Manoucas, to the effect that Ferantos and a Frenchman called upon him in Sixteenth streef, the day of the homicide, between noon and 1 o'clock, and that Ferantos said: "Now I will go to a place in Fifteenth street, and I will ask for ten dollars from the man there. Then, if I do not get the ten dollars, I will break the umbrella on his head, and I will make his head as soft as dough,"-was stricken out upon the objection of the people, apparently because the man referred to was not identified with the defendant. At the time of this ruling the identification was not so clear as it afterwards became. It is probable that, upon another trial, if the testimony is desired, the identification will be made in due time. If it is true that the case has no mitigating features, another trial will more clearly show it. The judgment of conviction should be reversed, and a new trial granted.

PARKER, C. J. (dissenting). The facts of this case are so fully and carefully stated in the opinion of Judge LANDON that, for the sake of brevity, they are adopted in this expression of dissent from the views therein relating to certain exceptions taken upon the trial. A summary, however, of the prominent facts is necessary in order to present