tions against it to enforce its debts and the words "railroad crossing, look out liabilities. This has recently been so expressly decided by the court of appeals in Kincaid v. Dwinnels, 50 N. Y., 552. for the cars." He then stopped a little east of the signboard and looked out to the east to see if there was anything crossing, and could then, looking east, Opinion by Smith, J.; Mullin, P. J. see about 50 rods on the railroad track and Noxon, J. concurring. CONTRIBUTORY NEGLIGENCE. FOURTH DEPARTMENT. but saw no cars approaching, and then started his horse forward. Moving at the rate of about six miles N. Y. SUPREME COURT, GENERAL TERM. an hour, (looking west and without looking eastwardly again), and so shut Stockus, respt. v. The N. Y. C. and could not easily look in that direction; in by the covering of his buggy that he H. R. R. R. Co., applt. he traveled from the place where he stopped, seemingly unconscious that while Where a person approaches a railroad he was passing the intervening distance crossing it is his duty, before cross-to the crossing, a railroad train, advancing, to take the precaution to look both ways to see and ascertaining at the rate of 30 miles an hour, five whether or not a train is approach times his rate of speed would pass 100 ing, and his failure to do so is neg- rods while he traveled 20 to the point ligence. of intersection of the highway and the Appeal from judgment at the circuit. railroad track. He was overtaken by Plaintiff brings this action for dam- an advancing train from the east and in ages resulting from injuries received jured. while crossing defendant's track near Clyde in this state. Plaintiff approached the defendant's railroad crossing where the accident occurred, riding in a top-covered buggy wagon and covered also with curtains at the side and back, and those were all buttoned down. In sitting in his seat he could not see to the right or left without bending forward. Held, Tha; plaintiff was clearly guil ty of such contributory negligence as should defeat his recovery in this ac tion. That a person approaching a railroad crossing is bound to take the precaution to look both ways and see and ascertain that a train is not approaching the track before he attempts to cross; he must use his eyes and ears so far as there is The highway in which he was travel-opportunity. ing ran nearly in the same direction with the railroad, and gradually ap proached the track, and for the last ten rods was nearly parallel with it. There is a clear legal duty in one to thus use his and ears. eyes before crossing a track can, by using Where one his eyes and ears, readily see or hear an approaching train, and he fails to take this precaution, he is guilty of negligence clearly contributing to the injury. As the plaintiff approached the railroad in the highway (traveling to the west), at a distance of about twenty rods from the crossing he reached a point where the customary signboard Opinion by Smith, J.; Mullin, P. J. was erected over the highway, and read and Noxon, J. concurring. Judgment reversed, and new trial granted. EVIDENCE. FRAUD. SUPREME COURT OF PENNSYLVANIA. Stewart v. Fenner. Decided March 13, 1876. The range of evidence is necessarily very wide where the issue is fraud; and the same latitude will be shown whether the testimony tends to establish or rebut the fact. A debtor conveyed all his real estate to his sister. The bona fides of the transaction being at issue, the sister offered to prove that after the conveyance she improved the property at her own expense. Held, That the offer should have been admitted. then offered to prove that she had procured buildings to be erected upon the premises, and had paid for the same subsequent to the delivery of the deeds. from her brother. Objected to; objection sustained; exception. Defendant offered in evidence certain judgments against Robert Stewart. Objected to; objection overruled; exception. Verdict and judgment thereon for the defendant, Plaintiff thereupon took this writ and assigned for eror the above rulings of the court to which exception had been taken at the trial. For this reason it was competent to show the debts owing by Robert Stewart as a motive for the conveyance to his sister. But for the same reasons, it seems to us it was error to exclude the evidence of the improvement of the prop Error to the District court of Phila- Held, The question at issue in the delphia county. trial below, was fraud in the conveyEjectment by Catherine Stewart to ance of the premises from Robert Stewrecover certain properties in the posses-dence was, therefore, necessarily wide. art to the plaintiff. The range of evision of George Fenner. The properties in question were conveyed to the plaintiff by her brother, Robert Stewart, upon the 16th of September, 1868. At the time of this conveyance the defendant held Robert Stewart's promissory note, dated November 5th, 1866, for the sum of $500, payable in two years and eight months after date. In erty by Catherine Stewart after her purchase. It was 1870 Fenner obtained judgment upon a circumstance, this note, and, under an execution though slight, to show bona fides in the upon the judgment, purchased the purchase. People do not often improve premises in question at sheriff's sale, when they have no confidence in their title. The motive of improving was a and received a deed for the same upon April 15, 1871. Under this deed Fen- question for the jury and not for the ner subsequently obtained possession of the premises, whereupon Catherine Stewart instituted this action to recover court. An honest attempt to improve, and to pay for the same, is not without force in the same. The testimony for the plain-inducing the belief that the prior purtiff, who was a domestic servant, tend chase was bona fide. The evidence ed to show that she paid a full and val- ought to have gone to the jury for what uable consideration for the property, it was worth. and that the money paid was derived Judgment reversed and a venire from her wages which she had hoarded facias de novo awarded. in a small box for many years. She Per curiam. CONTRACT. TENDER. MODIFI- bound to show a performance, or offer CATION. to perform on their part, at the time N. Y. COURT OF APPEALS. and place appointed, or that performLevy et al, respts., v. Burgess, applt. ance had been prevented or waived by defendant (3 Den. 363; 55 N. Y. 480). Decided March 21, 1876. It appeared upon the trial that at the Where, by the terms of a contract a day hour appointed defendant went to the is named for its performance, and the parties subsequently, and before place agreed upon; plaintiff did not the maturity of the contract, agree have the bonds, but informed him they upon a particular hour of the day had not yet received the bonds; that named and a place for its perform the person from whom they had purchasance, the latter agreement becomes a ed them had tendered bonds which they part of the original contract, and of had refused to accept, on the ground the same effect as if therein contained. Where state bonds are required to be endorsed by the state, and the endorsement refers to the statute under which they were issued, and "that the undersigned governor * has here that they were not properly indorsed. The bonds in question were to be endorsed by the state of Alabama, and those tendered to plaintiff's had been indorsed by the governor of that state unto set his hand and caused to be affixed hereto the seal of the state," with his own name, without adding his and the seal was affixed, the bonds official designation. The instrument of are well executed by the governor indorsement purported to bind the state. signing his name without the addi- It referred to the statute under which tion of his official designation. the indorsement was authorized, and The terms of a contract requiring the delivery of bonds signed by Smith, intestimonium clause recited that "the as governor, are not met by a tender undersigned governor of the state of of bonds signed by Smith, although Alabama has hereto set his hand and the latter bonds may be good. caused to be affixed hereto the seal of the state of Alabama," &c., and the seal of the state was affixed. This action was brought to recover damages for the non-performance of a contract, by which plaintiffs agreed to deliver certain bonds to defendant on a day named, when he was to pay them for the same. After the making of the contract and before its maturity the parties fixed upon an hour and place to meet on the day, the contract matured, to perform it. Theron G. Strong, for respt. Held, 1. That this became a part of the contract, and had the same effect as if the particular time and place of performance had been named in the original contract (5 Cow. 506; 14 Barb. 612); and plaintiffs, in order to recover were Defendant testified that he left and returned in a short time, and then informed plaintiffs that he could deliver bonds for him, signed by Smith, as governor, to M. & T., brokers, up to 2.15 P. M., on that day, who would receive and pay for them. Plaintiffs, before that hour, offered M & T. bonds of the requisite amount, twelve of which were indorsed by Smith, without the addition of his name of office. M. & T. refused to accept them on the ground that defendant had not authorized them to accept bonds so indorsed. The bonds so tendered were owned by one K., who allowed plaintiffs to take them to tender to M. and T., under an agreement with plaintiffs that if they were accepted by M. & T. plaintiffs would accept them as a good delivery on a contract they had made with K. to deliver them the bonds. Upon the refusal of M. & T. to accept them they were returned to K., who held them for some days, when plaintiff's took and paid for them. In construing a bequest under a will, the intention of the testator from the whole will must govern. A bequest that executors sell all personal and real estate, convert same into money and pay to a person named interest on $8,000 of sum realized, is a special legacy, and not demonstrative. Appeal from the decree of the surrogate of Wyoming county. Held, 2. That the indorsement was the act and contract of the state, and not The will in controversy, after makof the persons whose name was attached ing several specific bequests, provides: to it, and the addition of his signature "It is my will, and I do hereby diwas unnecessary; that delivery of bonds"rect, and authorize, and empower my so endorsed would have been a good de-"executors hereinafter named, to sell livery under the contract with the de-" and dispose of my real and personal fendant; that as plaintiff's neither own. estate not herein devised and beed nor had in their possession the bonds "queathed, and convert the same into called for by the contract at the time "money, as soon as the same can be they were to be delivered, the contract "doi.e without prejudice to the estate; was broken on their part. It was no "eight thousand dollars to be converted. excuse that K. had not performed his "into bonds and mortgages, the intercontract with them, or that they had "est of which said sum I give and bedeclined to receive the bonds, under a "queath to my wi e, Helen M. Smith, mistake of law; they were in default, "during her widowhood, which is inand they could not avail themselves of "tended in lieu of dower." the subsequent tender to M. & T., when The testator died siezed of certain defendant gave them permission to de- estate, in which his wife was entitled to liver bonds on his account to M. & T. her dower,, which constituted the bulk they were bound by the contract then of his estate, she accepted the provision imposed, and a tender o bonds of a above in lieu of dower, and the real different description was unavailing. and personal estate was sold and conthe question whether the bonds tender-verted into money, and after paying ed to M. & T. were such as defendant debts, expenses, &c., left in the hands agreed to accept was one of fact. of the executors only the sum of $5,865.20, for investment in bonds and mortgages, under the foregoing provis ions of the will, Judgment of general term affirming judgment on verdict directed for plaintiffs reversed, and new trial granted. Opinion by Andrews, J. WILL. N. Y. SUPREME COURT. GENERAL TERM. There was a hearing before the surrogate, and he decided that the executors vest this sum, or so much as remains after paying expenses, and pay the interest to the widow annually. M. H. Peck, for applt. Held, That it is a cardinal rule in the construction of all wills to seek the intention of the testator, and to carry such intention into effect. A challenge to the array of a grand jury on ground that it was not selected by the commissioners of jurors will not be allowed. The acts of a de facto officer are valid as to the public and the validity of his title to office cannot be drawn in question collaterally. That this was, and was designed to be, a specific legacy of the income of securities in bonds and mortgages to the amount of $8,000, if the testator's The plaintiff in error was indicted at estate, after payment of his debts and the General Sessions of the City and other expenses, amounted to that sum, County of New York for the crime of and if not, to the income of all the es- burglary, in the third degree. The tate remaining, during the life or wid- prisoner interposed a challenge to the owhood of the wife. This was the clear array of the grand jury, alleging in subintent of the testator. The fund was to be created by the sale of all his real and personal property, for that pur pose, and was to be in lieu of dower. Instead of leaving the widow to her dower rights in his real and personal estate, he thought it best to merge it with his whole real and personal estate and leave it invested in bonds and mort gages, and give her a specific legacy of the income of $8,000 from such security, which he doubtless supposed would exceed that sum. It was the duty of the executor to sell and convert the same into money, and invest and pay the widow the income on the sum of $8,000, if so much was realized. This was her legacy, and the executors could pay her no other money under the will. The widow was the primary legatee, and stood in equity virtually as a purchaser, by reason of the relinquishment of her dower. She took merely the income and forfeited it by her marriage. stance that the grand jury was not selected by Douglas Taylor, the Commissioner of Jurors of the County of New York, but was selected by Thomas Dunlap, who had been appointed by the Mayor of New York such Commissioner of Jurors; that the mayor exercised a pretended right to appoint Dunlap, but that the act of the legislature under which he appointed him was unconstitutional. The same challenge was interposed by the prisoner to the array of petit jurors. The district attorney demurred to both challenges, and the demurrers were sustained. ror. Wm. F. Howe, for pltff. in error. Held, no errors; that as to the grand jury under the provisions of 2 R. S. 724 $27, 28, no such challenge could be allowed: as to the petit jury the Commissioner of Jurors appointed by the mayor being a de facto officer, his acts were valid as to the public so long as he continued to occupy and exercise the functions of the office; and then the validity of his appointment could not be CHALLENGE. DE FACTO OFF- drawn in question in such a collateral The decree of the surrogate reversed and referred back for resettlement. Opinion by Smith, J.; Noxon, J, concurs; Mullin, P. J., dissents. CERS. N. Y. COURT OF APPEALS. manner. Judgment of General Term, affirm James Carpenter, pltff. in error v. ing judgment of conviction, affirmed. The People, defts. in errror. Decided April 4, 1876. Opinion by Rapallo, J. |