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tivity. A sermon was preached to a crowded house, and the prisoner was then taken, dressed in a shroud, to a hill near by, and in the presence of thousands of spectators was executed. These scenes were of course impressed strongly on the memory of a boy. I remember the session of the County Court at Haddam, when the judges, headed by the sheriff, marched in order from the tavern to the court-house. I remember seeing in court David Daggett, wearing white-top boots, and I met Roger Minot Sherman driving into the village in a sulky. I remember Staples and Hungerford. The latter went into court one day with a Bible under his arm, to show from the first chapter of Genesis, as authority in an insurance case, that the day began at sunset "and the evening and the morning were the first day."

In those days parties ran high in Connecticut, between the Democrats and the Federalists-" Demos" and "Feds," as they were called for shortness, and contempt as well. Let me recount two anecdotes:

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The Reverend Dr. Backus riding along the highway stopped at a brook to water his horse, when another rider came up from the opposite side, and thus addressed the good man: Good morning, Mr. Minister; "the latter replied, “Good morning, Mr. Democrat;" "How did you know that I was a minister?" "By your dress;" "How did you know that 1 was a Democrat! By your address."

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At another time Dr. Backus, being prosecuted for a libel upon Mr. Jefferson, was taken from his home to Hartford to be bailed. The minister and the marshal rode of course, for that was not the hey day of vehicles. The minister rode very fast, so fast that the marshal called out after him: "Dr. Backus, Dr. Backus, you ride as if the devil were after you." The doctor turning his head replied, "Just so."

MR. PRESIDENT-Connecticut has been often abused for the frugality and thrift of its people, and called in derision the Nutmeg State. I remember hearing that a New Yorker once put into his will an injunction against any child of his being educated in Connecticut. An Episcopal clergyman removing from New York into a Connecticut town was actually boycotted. The people would not sell him any thing to eat, and I believe he returned for food and shelter to the hither side of Byram river. I remember such a joke as this current in New York, that they had a singular habit in Connecticut when a man cast up his accounts with his neighbor and give him a note for the balance, he used to exclaim: "Thank God, that debt is paid." Some of the people have singular tastes now and then; as for example there is a hill behind East Haddam, that used to be called "Stagger-all-hill," but inquiring the other day I was told its name was now Mount Par Nassus."

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They may say all these things if they please, but Connecticut has no public debt, or a very small one at most, and her people are industrious, educated, polite to strangers, jealous of their rights and brave enough to defend them. I remember hearing Mrs. Fannie Kemble say, some years ago, of the twelve hundred thousand people then inhabiting Massachusetts, that taking them all in all she thought they were the fore- | most twelve hundred thousand people living together in the world, and I can speak in similar terms of the inhabitants of Connecticut, as really a party of the same people.

In conclusion, Mr. President, may I without affectation utter these words of love for my native State, its scenery and its people:

Flow on gentle river, shine on rugged and wooded hills, shine on green meadows basking in the sun, and you, brave people, who dwell amid the scenes, prove yourselves ever worthy of your progenitors, and flaunt high as you will, the old banner with its hopeful and trustful motto-Qui transtulit sustinet..

From Judge Learned, Presiding Justice, Third Department: ALBANY, March 26, 1890.

Clark Bell, President of the Saturday Night Club: Dear Sir-I am very much honored by your kind invitation to dine with the club on April 5th. It would give me pleasure to meet the members of the club and their distinguished guests, the judges of the Supreme Court of my native State.

One of my early recollections is the sight of Judge David Daggett, walking to the court-house at New London, in the old costume of knee-breeches and topboots. At a later date I had the pleasure of knowing quite well Judge Henry W. Waite, of Lyme, the father of the late chief justice of the Supreme Court of the United States. He was a man who possessed the same patient industry and calm sound sense which were characteristic of his more distinguished son. I remember also, about the same time, Judge Storrs, of Middletown, a man of unusual culture and learning. The bench was then adorned also, as I think, by Chief Justice Williams, of whom I have a less distinct recollection.

I have no doubt that those who now fill these places are in every way equal or superior to their predecessors, for I do not think that the bar and bench of the present day, are one whit behind those of a former time. The profession has shaken off some of the technicalities of the over-praised common law. and has taken a better hold on that right and justice which should govern the decision of courts.

Please accept my thanks for your courtesy, and my regret that I cannot be absent from home on the day of your dinner, and am therefore obliged to decline the invitation.

I would be pleased if you would present my regards to such of the judges of the court of Connecticut as may be present with you.

I am very truly yours,

WM. L. LEARNED.

NEW YORK COURT OF APPEALS ABSTRACTS.

APPEAL-WEIGHT OF EVIDENCE.-The appellate court cannot review the verdict of a jury upon a question of fact, although upon the record there is a preponderance of evidence against it. March 21, 1890. Finney v. Gallaudet. Opinion per Curiam. Affirming 2 N. Y. Supp. 707.

ASSIGNMENT FOR CREDITORS-WAGES-PRACTICE.(1) An omission in an assignment for benefit of creditors to give a preference to the wages or salaries of the employees, as required by Laws of New York, 1884, chapter 328, does not render the assignment void, and can be objected to only by an employee. Following Richardson v. Thurber, 104 N. Y. 606. (2) In an action to set aside an assignment for benefit of creditors, the Special Term found as a fact that the assignment was fraudulent and void, and not in accordance with the statute. No exceptions were taken by defendants. Although the evidence in the appeal-book did not sup port the findings, the General Term order, reversing the judgment, contained no statement that the reversal was on questions of fact as well as law. Held, that the findings of fact stood unreversed, and thus supported the conclusions of law made below, and, as the Court of Appeals can only review exceptions, it must reverse the order of General Term, and affirm the judgment of the Special Term. Second Division, March 18, 1890. Roberts v. Tobias. Opinion by Haight, J. Reversing 44 Hun, 630.

levy and seizure upon legal process for the payment of
debts; but we entertain no doubt that, where the re-
ceipts from a pension can be directly traced to the pur-
chase of property necessary or convenient for the sup-
port and maintenance of the pensioner and his family,
such property is exempt under the provisions of this
statute. Where such moneys can be clearly identified,
and are used in the purchase of necessary articles, or
are loaned or invested, for purposes of increase of
safety, in such form as to secure their available use for
the benefit of the pensioner in time of need, we do not
doubt but that they come within the meaning of the
statute; but where they have been embarked in trade,
commerce or speculation, and become mingled with
other funds so as to be incapable of identification or
separation, we do not doubt but that the pensioner
loses the benefit of the statutory exemption. These
propositions, we think, are fully supported by the cases
in this and other States. See Freem. Ex'ns, § 235, tit.
'Proceeds of Exempt Property." In Burgett v. Fan-
cher, 35 Hun, 647, and Stockwell v. Bank, 36 id. 583, it
was held that moneys received from a pension and de-
posited in a bank in the name of the pensioner, were
not subject to proceedings on the part of creditors to
have them applied in payment of debts, although the
relatious between the depositor and the bank were
those of creditor and debtor. The debt represented
the pension, and that was exempted by the statute.

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ited, as it must be, to the facts appearing in the case, is not an authority for the plaintiff here. In that case the pensioner had embarked his pension in business or trade, and in some transactions had made a profit. It was impossible to identify the fund in the various articles of property in which, through numerous and successive changes, it had become invested, and it was held that the pensioner had lost his right of exemption. March 18, 1890. Yates County Nat. Bank v. Carpenter. Opinion by Ruger, C. J. Reversing 1 N. Y. Supp. 733.

EXECUTIONS EXEMPTIONS-PENSIONS.-The home of an ex-soldier of the United States, purchased with the proceeds of a pension, is exempt from execution for his debts, under the Code of Civil Procedure of New York, section 1393, exempting pensions granted by the United States for military service. The only case in this court bearing upon the subject is that of Tillotson v. Wolcott, 48 N. Y. 188, where it was held that the exemption of a team, provided for a householder, should also apply to a judgment recovered by such householder against one who had tortiously taken and converted it to his own use. It was said by the court that "the judgment, when recovered by the debtor for the wrongful invasion of his privilege of the exemption of his property from levy and sale, represents the property for the value of which it was recovered." While the language of the statute did not in terms cover a judgment, it was held that it came within its spirit, and could not be taken by creditors. The opinion of Justice Grover in Andrews v. Rowan, 28 How. Pr. 126, is referred to and approved in the opinion of Judge Leonard. The general exemption laws of the State provide for the protection of specific articles or classes of property, with a view of alleviating the condition of the poor by securing to them the use or consumption of the property exempted; but the present law has departed from the ordinary form of exemption, and while seeking to accomplish the same object, provides, in terms, for the exemption of money, or its equiva-The case of Wygant v. Smith, 2 Lans. 185, when limlent. It is quite obvious that such an exemption can produce no beneficial effect unless it is extended beyond the letter of the act, and given life and force according to its evident spirit and meaning. Like other statutes, the section in question must be construed according to the meaning and intent of the law-makers, aud so as to effectuate their intention, so far as the language of the act will permit it to be done. Did the Legislature intend to limit the force of their exemption to a pension so long only as it remained an obligation of the government, or consisted of cash in the hands of the pensioner? Or did they also intend to protect it after it had been expended in the purchase of articles of property designed to administer to the comfort and support of such pensioner and his family? If the latter was not intended, we must ascribe to the law-makers the absurd intention of granting pensions for the purpose of satisfying claims against pensioners, and not to provide for the care and comfort of invalid or aged soldiers. If the soldier is not protected in the act of exchanging his pension for the necessaries of life, its only effect would be to enable his creditors to take it in satisfaction of their claims. No benefit is conferred if the protection is not extended beyond the possession of the money itself; for its only value consists in its purchasing power, and, if the soldier is deprived of that, the pension might as well, so far as he is concerned, have remained ungranted. The plain purpose of the act was to promote the comfort of the soldier; to secure to him the bounty of the government free from the claims of creditors; and to insure him and his family a safe, although modest, maintenIn the case of ance so long as their needs required it. an exemption of specific articles from levy and sale upon execution, it seems to be well settled that it extends, not only to the protection of such articles while in use or possession, but also to any claim arising out of their conversion by a wrong-doer, or their destruction by fire or otherwise when insured. Freem. Ex'ns, $235. The rule seems to be just and reasonable, and within the spirit of the exemption. In the case of the exemption of money or its equivalent, there has been some controversy in the courts with reference to the extent to which the exemption shall be carried. In such case it is somewhat difficult to lay down a rule, in precise terms, by which it may be determined in all cases what property is liable and what exempt from

INJUNCTION-DAMAGES-LACHES.-(1) On a reference to ascertain the damages sustained in consequence of an injunction order forbidding the legal foreclosure of a mortgage, the costs of the reference are properly allowed as part of the damages. (2) Sureties on an injunction bond, on an assessment of damages, cannot include, as a payment thereon, the amount at which they bid in the land, against the legal foreclosure of a mortgage on which the injunction was granted. (3) A delay of four years in applying for an assessment of damages against the sureties on an injunction bond will not bar recovery; the claim for damages having been left open on a settlement between the sureties and their principal. March 21, 1890. Holcomb v. Rice. Opinion per Curiam. Affirming 40 Hun, 638.

NEGLIGENCE-FELLOW-SERVANTS.-Plaintiff, an employee of defendant, was injured, while uncoupling cars, by falling into a pit between the tracks. The pit was usually covered with planks; but on the preceding day, in order to fix machinery therein contained, other workmen had taken up the planks and neglected to replace them. Held, that plaintiff cannot recover. The defendant was bound to furnish a reasonably safe place for its employees to work, and to furnish suitable implements and machinery for them. Here that duty was fully discharged. The pit was not dangerous when covered with the planks, and the danger was solely due to the fact that the plaintiff's co-servants left it uncovered. Within the rules applicable to such a case, the plaintiff and the others there engaged in the service of the defendant, including the foreman, were co-servants, engaged in a common employment; and the common master cannot be held responsible for an injury caused to any one of them through the carelessness of any of the others. The employees were not engaged upon an imperfect road or structure; but they were

engaged in the management or conduct of a road properly and safely constructed, and rendered unsafe solely by their carelessness. This is like the case of a master builder who builds a platform upon the side of a building for his employees to work upon, and one of them removes from the platform a plank, and in consequence thereof another employee falls through the aperture thus made, and is injured; and in such a case it is well settled that the master is not responsible for the injury. If this defendant had been engaged in repairing a bridge, and one of its employees had taken up a plank, and had not replaced it, and another employee had fallen through the hole in consequence of such carelessness, the defendant would not have been responsible. The following cases illustrate the rules of law applicable to this case, and are ample authority for the conclusion we have reached: Crispin v. Babbitt, 81 N. Y. 516; McCosker v. Railroad Co., 84 id. 77; Slater v. Jewett, 85 id. 61; Brick v. Railroad Co., 98 id. 211; Neubauer v. Railroad Co., 101 id. 608; Loughlin v. State, 105 id. 159; Anthony v. Leeret, id. 591; Hussey v. Coger, 112 id. 614; Hudson v. Steamship Co., 110 id. 625; Brynes v. Railroad Co., 113 id. 251; Stringham v. Hilton, 111 id. 188; Judson v. Village of Olean, 116 id. 655. April 15, 1890. Filbert v. Delaware & H. Canal Co. Opinion by Earl, J. Ruger, C. J., and O'Brien, J., dissent. Reversing 2 N. Y. Supp. 623.

NOTICE-CONSTRUCTIVE-POSSESSION-MORTGAGE.— Possession by the owner of a tenement-house, who was formerly oue of the tenants, and who, on purchase, removed to the rooms before occupied by the housekeeper of the vendor, and was known as owner, and collected the rent from all the tenants, is sufficiently open and visible to be notice of her ownership, so as to defeat a mortgage taken before her deed is recorded, and without knowledge of it. It may be true, as has been argued by plaintiff's counsel, that, when a party takes a conveyance of property situated as this was, occupied by numerous tenants, it would be inconvenient and difficult for him to ascertain the rights or interests that are claimed by all or any of them. But this circumstance cannot change the rule. Actual possession of real estate is sufficient to a person proposing to take a mortgage on the property, and to all the world, of the existence of any right which the person in possession is able to establish. Gouverneur v. Lynch, 2 Paige, 300; Bank v. Flagg, 3 Barb. Ch. 318; Moyer v. Hinman, 13 N. Y. 184; Tuttle v. Jackson, 6 Wend. 213; Trustees v. Wheeler, 61 N. Y. 88, 98; Cavalli v. Allen, 57 id. 517. March 21, 1890. Phelan v. Brady. Opinion by O'Brien, J. Affirming 1 N. Y. Supp. 626.

PRACTICE-SERVICE OF COPY OF ACCOUNT.-The enforcement of the Code of Civil Procedure of New York, section 531, providing that the party alleging an account in his pleading must deliver to the adverse party, within ten days after a written demand therefor, a copy of the account, and "if he fails so to do, he is precluded from giving evidence of the account," is dependent upon an order to that effect made on application preliminarily to the trial, or to the disposition of the question of the admissibility of the evidence. Second Division, March 18, 1890. Gebhard v. Parker. Opinion by Bradley, J.

SPECIFIC PERFORMANCE-CONTRACT.-(1) A letter to the owner of a building proposing to accept a lease of it, specifying the term and rental, upon condition of alterations in accordance with "plans to be mutually agreed upon," and a letter from the owner accepting the offer, do not, in the absence of any agreement on the plans for alterations, constitute a contract for a lease, of which specific performance will be enforced. (2) Under such circumstances, the condition as to alterations was not waived by a subsequent letter from the owner refusing to lease the premises, nor by a ten

der of the rent at the time for the beginning of the term. Feb. 25, 1890. Mayer v. McCreery. Opinion by Peckham, J. Affirming 44 Hun, 628.

SPECIFIC PERFORMANCE-DOWER-APPEAL-EXCEP 'TION.-—(1) In an action to enforce specific performance of an oral contract to convey land, a decree requiring the wives of the vendors to release their inchoate right of dower is erroneous, where it is neither alleged nor proved that they were parties to the agreement. (2) The General Term should not reverse a judgment as to one of several appellants, although as to him erroneous in law, upon a general exception by all, in the absence of a special exception pointing out the error in the particular case. March 18, 1890. Schoonmaker v. Bonnie. Opinion by Andrews, J. Modifying 43 Hun, 634.

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STATUTE OF FRAUDS-CONTRACT-EVIDENCE-MEMORANDUM.-(1) A memorandum reading, "I agree to take one thousand sets Dickens," and specifying times of delivery and terms of payment, not being sufficient to show a contract for want of mutuality, it may be shown by parol, after such performance as takes it out of the statute of frauds, that it was part of the agree ment that the seller should not lower the trade price of the books. In Lockett v. Nicklin, 2 Exch. 93, which was an action of debt for goods sold and delivered, the goods were furnished upon a written order of the defendant. The defendant offered parol evidence to prove that the terms on which the order was given were six months' credit, etc. The evidence was held admissible. It was there said by Alderson, B.: "The documents in question are not a contract, but are writings out of which, with other things, a contract is to be made. The question, then, is whether the defendant has not a right to adduce evidence, not to contra dict the written instruments, but to show the real contract, of which the paper contains only one of the terms. In order to do that, the defendant must resort to the previous conversation. * In holding this evidence admissible, we do not trench on any of the cases. In Batterson v. Pierce, 3 Hill, 171. Judge Bronson sustained a defense to a note given by the defendant upon the sale of a lot of wood on plaintiff's land, which was based upon the proof that the plaintiff had verbally agreed, prior to the sale, that, if any thing occurred to the wood through his means, he would be accountable, and would guaranty the purchasers against any damage in consequence of his acts. The principle of the decision was that there were mutual stipulations between the parties, all made at the same time and relating to the same subject-matter, and the whole engagement was open to proof. The cases of Chapin v. Dobson, 78 N. Y. 74; Van Brunt v. Day, 81 id. 251, and Brigg v. Hilton, 99 id. 517-fully sustain the proposition that in such a case as this, where the agreement of the plaintiffs rested in parol, it is open to proof. The rule which rejects parol evidence, when offered with respect to a contract between parties and put into writing, has no application to a case like this where, of the original agreement which has been exe" cuted, a part only is in writing, and the rest was ver bal. The principle of liability is the same whether the whole transaction be embodied in one written instrument, setting forth the respective obligations of both parties, or whether it takes the form of a separate undertaking by each party. Whether we regard the writing of the defendant as an order or as an agreement is quite immaterial. In either view, it was an admission only of the defendant's engagement. (2) In an agree. ment "to take 1,000 sets Dickens' sheets, same as last, as under," then following times of delivery, etc., the phrase, "same as last," is not ambiguous, it clearly referring to the kind of sheets. March 21, 1890. Roulledge v. Worthington & Co. Opinion by Gray, J. Reversing 3 N. Y. Supp. 819.

TENDER-CONTRACT-TORT.-The Code of Civil Proivil Pr cedure of New York, sections 731-734, provide that, in actions for money only, defendaut may, before trial, tender plaintiff the amount he conceives to be due him, with costs, but the tender shall not avail unless the money is accepted, or paid into court; and that where plaintiff proceeds in the action after tender, and recovers no more than the sum tendered, he shall pay costs from date of tender, and, where he recovers a greater sum, the amount paid into court shall be deducted therefrom. Before trial of an action for damages, defendant made a tender to plaintiff, which being refused, the money was by defendant paid into court. Held, that it thereupon became the property of plaintiff, although the verdict was for defendant. The statutes of New York make no distinction between tender of amends for a wrong and tender in an action on contract. A tender is not effectual, under the Code, "unless the money is accepted or is paid into court." If it is not accepted, in lieu of the acceptance, and in order to make his tender available in law, the defendaut may deposit the amount in court. The payment into court is thus deemed equivalent to an acceptance by the plaintiff of the amount tendered. The money deposited is deemed in law a payment to the plaintiff on account of the contract obligation, or of a conceded liability for the injury. The provisions of the Code in question however are similar to those which existed previously in the Revised Statutes, except that the additional requirement has been made that the moneys should be paid into court, and notice thereof given concerning them. It was held in Slack v. Brown, 13 Wend. 390, and in Dakin v. Dunning, 7 Hill, 30, that when the money was brought into court it belonged to the plaintiff in any event. In the more recent cases of Becker v. Boon, 61 N. Y. 317, and Wilson v. Doran, 110 id. 101, Judge Earl, delivering the opinion in the former, and Judge Andrews in the latter case, it was assumed by them that moneys paid into court by a de. fendant, under a tender, became the property of the plaintiff in all events, and that his title to them cannot be disputed. The Revised Statutes and the Code have extended the common-law right of tender so as to permit a tender of moneys, or their payment into court where the tender is refused, during the pendency of an action. But the effect under the statutes, as now under the Code, has always been considered to be that the plaintiff recovers, in any event, the amount of the tender. Judge Bradley, at General Term, in the case of Wilson v. Doran, 39 Hun, 90, collected the authorities in the English reports and in this State, and has there reviewed them. The plaintiff runs the risk, in proceeding after a tender or deposit, of paying defendant's costs, if the recovery falls short of the amount tendered; while the defendant, in such a case, runs the risk of losing that amount of money in the event of his success upon the ensuing trial. When the moneys are brought into court they become the plaintiff's; and it is immaterial, as to the question of their ownership, what the result of the trial may be. This result is a just one. The defendant had two courses available to it, under the Code, which regulates the procedure in civil actions. It elected to take that one which involved the tender or payment of money to the plaintiff, and paid the money into court upon the refusal of its tender, under an admission of liability pro tanto, and to make sure that the plaintiff could not say that she had not been paid so much, in any event. March 18, 1890. Taylor v. Brooklyn El. R. Opinion by Gray, J. Affirming 7 N. Y. Supp. 625.

TRUSTS-POWERS-SECRET TRUST.-(1) The receiver of a bank, of which plaintiff and ten others were trustees, sued them for waste of the bank's funds. In settlement thereof a contract was entered into between them and him by which they undertook to pay a per

centage of the bank's liabilities; and the receiver trans-
ferred to one designated by a majority of them certain
real estate of the bank, which they agreed to sell, re-
imburse themselves out of the proceeds, and return
the surplus to the receiver. A conveyance reciting the
contract was executed to him. Three days thereafter
plaintiff executed an instrument declaring his associ-
ates to be equally interested with him in all the bene-
fits from the conveyance. Held, that the agreement
did not create an express trust to sell land for the bene-
fit of creditors, but that, inasmuch as plaintiff's associ-
ates joined with him in the contract, and had selected
him as the grantee, the conveyance would be deemed
a power in trust, within the provision of 1 Revised
Statutes of New York, page 729, section 58, that,
"where an express trust shall be created for any pur-
pose" not thereinbefore enumerated, "no estate shall
vest in the trustees, but the trust, if directing or au-
thorizing the performance of any act which may be
lawfully performed under a power, shall be valid as a
power in trust," and that an exchange of the land for
other real estate was not within the purpose of the
power taken by plaintiff. (2) 1 Revised Statutes of
New York, page 728, section 51, providing that where a
grant for a valuable consideration shall be made to one
person, and the consideration therefor shall be paid by
another, no use or trust shall result in favor of the per-
son by whom such payment shall be made, but the title
shall vest in the person named as the alienee in such
conveyance, subject only to the provisions of the suc-
ceeding section, reserving the rights of creditors of the
person paying the consideration, has no application
where the trust is expressly reserved by another in-
strument relieving it from the effect of a secret trust.
Second Division, March 21, 1890. Woerz v. Rade-
macher. Opinion by Bradley, J. Reversing 43 Hun,
638.

TRUSTS-POWER TO SELL OR MORTGAGE.- Laws of
New York of 1886, chapter 257, authorized the sale or
mortgage of land held in trust, "whenever it shall ap-
** * *that it is for
pear to the satisfaction of court
the best interest of said estate so to do, and that it is
necessary and for the benefit of the estate to raise by
mortgage thereon or by a sale thereof funds for the
purpose of preserving or improving such estate," does
not authorize the sale of real estate, merely because
by investing the proceeds the income of the life-ten-
ant would be increased. March 11, 1890. In re Roe.
Opinion by Finch, J. Affirming 6 N. Y. Supp. 464.

VENDOR AND PURCHASER-DEFECTIVE TITLE-DAMAGES.-Where vendors of land, to which they claim title as sole heirs of an intestate, are unable to furnish competent evidence that they are in fact sole heirs, but it does not appear that they have not the title they claim to have, they are relieved from the imputation of bad faith in undertaking to convey, and the purchaser, aside from purchase-money paid and expenses of examining title, can only recover nominal damages, and cannot recover for permanent improvements made in expectation of receiving a good title. Conger v. Weaver, 20 N. Y. 140; Pumpelly v. Phelps, 40 id. 59; Leggett v. Insurance Co., 53 id. 394; Cockcroft v. Railroad Co., 69 id. 201. Second Division, March 21, 1890. Walton v. Berry. Opinion by Bradley, J. Affirming 41 Hun, 311.

WILL-DOWER-WIDOW'S ELECTION--LIMITATIONS. -(1) Where a widow, for more than one year after her husband's death, fails to make her election between a testamentary provision and dower, equity cannot relieve her from the statutory presumption that she has elected to take under the will (R. S., N. Y. [7th ed.], p. 2198, § 14), because she acted in ignorance of the nature and extent of the estate, and relied on the representations of testator's confidential agent and adviser,

who was familiar with the estate, but who was also the husband and agent of testator's daughter, out of whose lands plaintiff would be dowable. The act is a statute of limitations, and the policy of the law forbids the granting of relief against its provisions. Equity does not interfere to grant relief when one has failed in diligence, or in the performance of an obvious and imperative duty imposed by law. It does not rise above the common law and the statute. Its office is not to relieve against a hardship, merely as such; nor should its interference be moved by mere opinion in the judge. I do not think the equitable powers of a court can be properly invoked to interfere with the established rules of law, though the same result may be often reached by an injured party in preventing another from benefiting by an act or contract procured by his artifice or deceit. The theory of estoppel might be available in some such case. Here the complainant

was apprised by the will of an option offered to her with reference to her future property rights; and it became at once her legal duty to be diligent and careful in acting, if she proposed to take what the law assured to her in place of what the will gave. The Revised Statutes have but followed the common law in their provision for an election by the widow between a testamentary gift in lieu of dower and the dower right itself. But they have further provided that the widow shall be deemed to have elected her devise or pecuniary provision, unless, within one year after the death of her husband, she shall enter upon the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. Where, then, a provision is by the express terms of the will made in lieu of dower, the widow is obliged to make an election whether to accept or to renounce it for what the law gives to her. She cannot have both, and she is at once chargeable with the duty of informing herself, so as to make her election. And, that she shall have a certain period of time for that purpose, the Legislature has provided what was deemed a reasonable season of delay; and its enactment that the election must be made within one year has the same force as a statute of limitation upon the widow's rights. The object of the Legislature was to compel the widow to make her election a reasonable time after the death of her husband. Hawley v. James, 5 Paige, 446. The right to dower out of the estate is a strict legal right, of which the widow cannot be deprived save by her own act in waiving it, or in accepting some other and inconsistent provision. Nor does the statute attempt to deprive her of it; but it provides that, where something else is given to her in lieu of it, if then she does not do some act evidencing a renunciation of the gift, in favor of what the law will admeasure to her, within the period of a year after the husband's death, such conduct shall be deemed an acceptance of the husband's provision for her. This being, then, a statute of limitation upon the widow's right to enforce her claim to dower, the policy of the law in such a case, as in all cases involving the operation of such a statute upon a person's rights or demands, forbids the granting of relief against its provisions. The statute has acted, and the right has gone. Nor is this the ordinary case of election, where knowledge is necessary in order to make it validly; and hence, where there was a mistake of facts, or a misconception as to rights, relief in equity is allowable. Here the statute does not offer or create the election. That existed already. The office of the statute was to impose a limitation of time upon the exercise of the power to elect, and to bar any subsequent exercise of it. (2) Under such circumstances, representations by testator's agent and adviser of matters of opinion, probability, possibility or conjecture, even if made in the presence of his wife, cannot operate as an estoppel to prevent her from pleading the statutory presump

tion of election against plaintiff's claim. Feb. 25, 1990. Akin v. Kellogg. Opinion by Gray, J. Affirming IN. Y. Supp. 846.

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NOTES.

WASHINGTON correspondent thinks the justices of the Supreme Court of the United States are not to be blamed if they do become vain. All day long they sit upon the grandest throne in the United States, surrounded by more show of deference and honor that even the president receives, with theatrical curtains of crimson silk draped behind them, and a great gold eagle over their heads, with page boys at their elbows, venerable lawyers bowing before them, velvet carpets to hush the fall of feet upon the court-room floor, negro doorkeepers watching over noiseless doors, a dim religious light in the semi-circular room, and a neverceasing throng of awed citizens of this and other lands reverentially staring them out of countenance. The Libyan lion at a circus excites very little more veneration and awe from the spectators. I should think that the justices must feel sometimes how like wild beasts ou exhibition they are. Perhaps they don't think of it at all, for one grows accustomed in time to any thing even to being a Supreme Court justice.

The decision of the Court of Appeal in Proudfoot v. Hart (reported elsewhere) does not take us much "forrarder" in the interpretation of the term "tenantable repair." It did not need the decision of a divisional court and the Court of Appeal to tell us that the official referee, who had held that, under a covenant in a lease to deliver up a house in "good, tenantable repair," the tenant was bound to paper the walls with the same quality of paper which was on them when he took possession, and to paint the internal wood-work and whitewash the ceilings, was as wrong as wrong could be. But the definition constructed by Lord Justice Lopes reminds us, if we may venture respectfully to say so, of the famous definition of an "archdeacon "" as "a person who exercises archidiaconal functions." When we are solemnly told by the learned lord justice that “good tenantable repair is such repair as, having regard to the age, character and locality of the premises, would make them reasonably fit for the occupation of a reasonably-minded mau of the class who would be likely to want such a house," we are tempted to say, "yes, exactly so-that is, the premises must be in tenantable repair." Most of the definition is to be found in the old Nisi Prius cases, but we have the privilege, we believe for the first time, of being introduced in this connection to the "reason. ably-minded man," and we shall require a few more decisions before we can become fully acquainted with the views of this personage. We have hitherto considered that a man is not altogether unreasonably minded who objects to black ceilings; discolored, dirty or faded wall papers, and worn paint. Further, there are reasonably-minded men who object to living rooms the walls of which are bedecked with huge floral emblems of hideous color and the paint of the woodwork of which is a ridiculous imitation of the grain of some wood. Are these men "reasonably-minded" within the definition, or must the "reasonablyminded" man be devoid of any artistic sensibility? It is to be observed however that the Divisional Court are reported to have held that the tenant in the recent case was not bound to repaint or repaper where the old paint or paper had become worn out through age, but was only liable to make good damage caused by commissive or permissive waste. This is in accordance with the purport of the judgment of the Court of Ap peal in Crawford v. Newton, 36 W. R. 54, but in that case Lord Esher expressly declined to say what was the meaning of the words " tenantable repair."-Solicitors' Journal.

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