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the party defendant, but if domestic corporations must be excluded on the principle of expressio unius, then non-residents and persons who have disposed of, or are about to dispose of, secrete, etc., their property, must also be excluded from the provisions of the statute, as they are not specially mentioned here. When we look at the origin of this section the explanation becomes exceedingly simple. At the time it was drafted, the right of attachment only extended to the case of foreign corporations and absent, absconding and concealed debtors. As the other changes were gradually perfected in sections 227 and 229, the peculiarity of this section was overlooked or disregarded, as it was sufficiently apparent that the attachment debtor was designated in any event by the terms of the section.

In the construction of statutes we should, if possible, carry out the cardinal principle, that, of two constructions, that which gives effect to all the words used, taken in their ordinary sense, must be adopted. Here two constructions are presented; the one makes the terms of one section so repugnant to those of another as to render some of its terms and provisions entirely inoperative. The other gives effect to every word used in both sections according to their general acceptation and usage. The latter construction should therefore prevail. "It is an established rule in the exposition of statutes," says Chancellor Kent, "that the intention of the lawgiver is to be deduced from a view of the whole and every part of a statute taken and compared together. The real intention, when accurately ascertained, will prevail over the literal sense of the terms, scire leges non hoc est verba earum tenere sed vim ac potestatem, and the reason and intention of the lawgiver will control the strict letter of the law when the latter would lead to palpable injustice, contradiction or absurdity."* "The Code is one whole statute, intended to provide a complete system of remedies for the enforcement of the rights of parties. Its different sections reflect light upon each other, and we should fall into serious errors did we not compare together its various provisions in arriving at its proper construction.+

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Looking, then, at both sections, 227 and 229, we see that the legislature, by a separate amendment, inserted a positive provision for attachment in certain cases against "any corporation, as distinguished from the previous provision in relation to a "foreign" corporation. To make the intention more plain and positive they inserted at the same time the words, "or corporation "after the word "person," in the concluding portion of the same section. Now this was a separate, distinct and affirmative act of the lawmakers, and, as such, is an emphatic expression of their intention, which must control the strict letter of the law in the latter section, if it would otherwise lead to a palpable contradiction of such an intention.

I am, therefore, of the opinion that domestic corporations are expressly included within the provisions of the statute.

But even if the Code was silent as to corporations the word "person" would include them within its terms. It is a well-established rule of statutory construction, both in this country and England, that corporations are to be deemed and considered as persons where the circumstances in which they are placed are

* 1 Kent, 461, 462.

Barnes v. Buck, 1 Lans. 268, per Lamont, J.

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identical with those of natural persons expressly included in a statute.* We have seen that the provisions of the attachment law in relation to the disposition of property apply to corporations the same as to natural persons, it follows, therefore, under the foregoing rule that they are included within the terms of the statute.

Again, it is a well-settled rule of law in this State, and in the national courts, that a corporation created by and transacting business in a State is to be deemed an inhabitant of that State.+ "It is also held," says Judge Mason, in delivering the opinion of the Court of Appeals, in Stephens v. Phonix Ins. Co., "that where a corporation is created by the laws of a State the legal presumption is that its members are citizens of the State in which alone the corporate body has a legal existence, and that a suit by or against a corporation in its corporate capacity must be presumed to be a suit by or against citizens of the State which created the corporate body." And Chief Justice Marshall, in the United States v. Deveaux, 5 Cranch, 90, held that a corporation, though an invisible, intangible thing, for the purpose of bringing or defending suits and for the purpose of jurisdiction, "being composed of persons is to be considered a person." The constitution of 1846 (art. 8, § 3) declares that corporations shall have the right to sue, "and shall be subject to be sued in all courts, in like cases as natural persons." The intention here is undoubtedly to place corporations and natural persons in respect to suits and all the remedies growing out of suits on precisely the same footing. This, taken in connection with the foregoing decisions, authorizes an attachment against corporations whenever it will issue against a person.

UNITED STATES SUPREME COURT ABSTRACT. The following decisions were announced in the United States Supreme Court on Monday, February 15, 1875:

APPEAL.

1. Bill of review.-No. 124. Putnam et al. v. Day. Appeal from the Circuit Court of the United States for the district of Indiana. Mr. Justice Bradley delivered the opinion, holding that a bill of review will not be entertained when it appears that the matters set up as a ground of review existed and were known to the party, and no satisfactory reason is given why they were not set up in the original suit. Reversed.

ana.

2. Judgment in State court. -No. 82. Dupasseur v. Rocherau. Appeal from the Supreme Court of LouisiMr. Justice Bradley delivered the opinion. A purchaser of property on a sale by a marshal, under a judgment in a circuit court of the United States, sets this up as a defense in a suit in the State court about the same property. A decision against this title by the State court is reversible in this court. The State court having correctly decided that the judgment of the circuit court was not conclusive, and given its true effect, the judgment of the State court is aflirmed.

AWARD.

Patent.-No. 168. Reedy v. Scott. Appeal from the circuit court of the United States for the southern district of Ohio. Mr. Justice Clifford delivered the

* See South Carolina R. R. Co. v. McDonald, 5 Ga. 531, and cases cited.

+ Stephens v. Phoenix Ins. Co., 41 N. Y. 149; Marshall v. Baltimore, etc., R. R. Co., 16 How. (U. S.) 314; Covington Bridge Co. v. Shepherd, 2 id. 227, 232.

opinion, holding that the submission to an arbitrator the question whether defendant's machine infringed the invention of plaintiff, as secured by patent, binds the parties to the award, and it is a good defense to a suit on a re-issue of plaintiff's patent made after the award. Reversed.

INSOLVENCY.

Mortgage.-No. 186. Burnhisel v. Firman. Appeal from the Supreme Court of Utah. Mr. Justice Swayne delivered the opinion, holding that where a party held notes and mortgages against an insolvent, given in good faith before insolvency, and takes new notes and a new mortgage on the same property a few weeks before bankruptcy proceedings against the debtor, he does not lose his right to this security for all that was justly due, though there may have been an excess of interest included in the new settlement. Reversed.

INSURANCE.

Evidence.-No. 165. American Life Insurance Co. v. Mahone. Appeal from the circuit court of the United States for the southern district of Mississippi. Mr. Justice Strong delivered the opinion, holding that the opinion of a physician, who had examined the assured at another time for another company, given to that company, is not evidence, though the physician was sworn as a witness. Held, also, that the statement of the agent of the company, who examined into the case after the death, that it would be best for the company to pay the loss, is not admissible against the company. Reversed.

JUDGMENT.

Secretary of Treasury.-No. 177. The United States v. O'Grady's Executors. Appeal from the court of claims. In this case, the court of claims rendered a judgment for $72,450 in favor of the claimant for captured cotton. The secretary of the treasury refused to pay the whole amount without the deduction of the cotton tax of two per cent per pound. The court hold that, after final judgment by the court of claims, the duty of the secretary was to pay the judgment, without reduction; that it is the business of that court to adjudicate questions of liability such as that presented. Affirmed. Mr. Justice Clifford delivered the opinion.

LIEN.

Contractor on railroad.-- No. 151. Fox, exec., v. Seale et al. Appeal from the circuit court of the United States for the western district of Pennsylvania. Mr. Justice Strong delivered the opinion, holding that the act of the legislature of Pennsylvania, of 1842, giving to contractors and others on railroads a preference over subsequent mortgages, etc., will be enforced, though the debt is afterward merged in a judgment; and the lien of the judgment, as a judgment, may be lost. Reversed.

NATIONAL BANK.

Taxation.- No. 174. Hepburn v. School Directors of Carlisle. Appeal from the Supreme Court of Pennsylvania. Mr. Chief Justice Waite delivered the opinion, holding that shares of stock in national banks may be taxed by the State at the actual value and not necessarily at the par value. They are also liable to municipal taxes as other property of like character. Affirmed.

PAYMENT.

Confederate notes.-No. 164. Fretz v. Stover, executor, etc. Appeal from the circuit court of the United States for the eastern district of Virginia. Mr. Justice Davis delivered the opinion, holding that payment

by a debtor in Virginia to the agent of plaintiff, a citizen of Pennsylvania, made in confederate notes and depreciated State bank paper, is not a valid payment. Reversed.

SERVICE OF PROCESS.

Officer.-No. 179. City of Sacramento v. Fowle. Appeal from the circuit court of the United States for the district of California. Mr. Justice Davis delivered the opinion, holding that service of notice on the first trustee of the city of Sacramento was a valid service against the city, that officer being by law president of the board of trustees and executive officer of the city. To a judgment for city bonds so obtained no defense can be interposed. Affirmed.

STATUTE OF LIMITATIONS.

Territorial claims.-No. 139. Langdean v. Hanes. Appeal from the circuit court of the United States for the northern district of Illinois. Mr. Justice Field delivered the opinion, holding that confirmation under the act of March 13, 1804, of claims in the Territories of the north-west, ratified by the act of March, 1807, affirmed and corrected a legal title, and the provision for a patent in that act did not imply that the title remained in the United States, hence the statute of limitations did not commence to run only when the patent issued. Affirmed.

TAX.

Railroad.-No. 54. Erie Railway Company v. Commonwealth of Pennsylvania. Error to the Supreme Court of Pennsylvania. In this case the court reaffirm the decision in Reading Railway Company v. Pennsylvania (15 Wall.), that a tax upon the gross receipts of a railroad company is within the power of a State to impose; that the Erie road was intended to be taxed by the act of the legislature as doing business within the State, and that the tax is justly apportioned to the length of the road in the State and not therefore to be complained of by the company; and further, that the property of the road is not exempted from the tax by former legislation. Affirmed. Mr. Justice Hunt delivered the opinion.

WILL.

Genuineness: jurisdiction of courts.- No. 141. Risley et al. v. McGlynn et al. Appeal from the circuit court for California. This was a proceeding to set aside the probate of the will of the late Senator Broderick, of which Andrew J. Butler, now deceased, and McGlynn were executors, as a forgery. The court hold that a court of equity will not entertain jurisdiction of questions of devise, which have been authoritatively settled by the proper court, and that in this case the decision of the probate court of California is conclusive of the fact of the genuineness of the will; that the action is barred by the statute of limitations, and if it were not, the facts alleged show that the will should have been contested before the probate court, and that it would have been but for the ignorance of the complainants of Broderick's death and all the public events connected with it. The seclusion of the complainants and want of means of information is no excuse in such a case and will not exempt them from the laws which control human affairs. Nor does it make any difference that two of the complainants are married women. This fact does not take them out of the operation of the statute of limitations. Affirmed. Mr. Justice Bradley delivered the opinion. Dissenting-Justices Clifford and Davis.

POWER OF STATES TO COMPROMISE DEBTS DUE FROM RAILROADS.

In Woodson et al. v. Murdock et al., decided in the Supreme Court of the United States, an interesting point was adjudicated in reference to the relation of States with railroads. By an act of the legislature of Missouri, approved March 31, 1868, the governor of the State was authorized, in effect, to take $5,000,000 in full satisfaction of a debt of $7,000,000 due by the Pacific Railroad to the State. The sum of $5,000,000 was paid according to the terms of the act, and the governor gave a deed conveying all the right, title and interest of the State, and discharging the railroad from all liens and claims of the State. The question was, whether this act was contrary to the constitution of the State, which provided that "the general assembly shall have no power, for any purpose, to release the lien held by the State upon any railroad." Strong, J., said: "The language of the prohibition is remarkable. It is not that the general assembly shall not release the debt due to the State by any railroad company. Legislative control over the debt is left untouched. The provision has reference only to a security for the debt. Had it been intended to put the debt beyond the disposition of the legislature, it would be difficult to find a reason for confining the prohibition to a release merely of the lien. But it is easy to see why it should be ordained, that while the debt remained, the security for it should not be given up. And that such was the intention appears quite plainly, in view of the state of things which existed when the constitution was framed and adopted. Prior to its adoption, it may be said to have become almost a legislative habit to release the liens held by the State upon railroad, without discharging the debts." And it was held that the constitution did not forbid the legislature to sell the railroad, or compromise the debt claimed by the State, for less than the entire indebtedness; and that, although the legislature had no power to release the lien while the debt remained, it was not prohibited from selling the claim or commuting the debt.

COURT OF APPEALS ABSTRACT.

AGENCY.

Liability of agent: evidence: contemporaneous transactions. This action was brought to recover money alleged to have been fraudulently obtained by the defendant from plaintiff for the pretended purpose of paying for lands purchased by defendant, as agent for plaintiff. After plaintiff had introduced in evidence a deed of the premises from the original owner to defendant a contract of purchase and sale between the parties, and a deed from defendant to plaintiff, he offered oral proof of plaintiff's agency, which was objected to as tending to contradict the writings. This objection was overruled. Held, no error; as the legal effect of the instrument was not varied by the proof, but it related only to defendant's accountability.

The complaint alleged that prior to the transaction in question defendant, on various occasions, had been employed by plaintiff as an agent in purchasing lands at a stipulated compensation. The answer admitted this. On the trial plaintiff offered evidence of these facts which was received under objection. Held, that this was not an error for which the judgment could be reversed. 1st. Because the proof of the facts admitted could not have prejudiced defendant. 2d. The evidence was admissible to aid in interpreting the acts

and communications between the parties in reference to the transaction in question. But held, that, as it was not claimed that there was such a general agency as would have precluded defendant from purchasing the lands in question on his own account, this evidence was not competent for the purpose of establishing the relation of principal and agent in respect to such lands, and (the testimony of the parties being conflicting on this point) that a charge to the jury that they had a right to look into the pre-existing relations as bearing upon the probabilities, as to which of the parties testified to the truth, was error.

It is proper to adduce in evidence the facts accompanying one transaction, upon the question of intent, in a cotemporaneous transaction presenting the same facts; but evidence of the facts in one transaction does not tend to establish the existence of similar facts in another, and is incompetent for that purpose. Richards v. Millard. Opinion by Rapallo, J.

CONTRACT.

Lease: assignment: waiver of forfeiture.-This was an action to recover back $5,000 alleged to have been paid by plaintiff to defendant H., under a contract between plaintiff and defendants S. & L. of the one part and defendant H. of the other, by which H. agreed to sell and assign to the former a lease. This lease contained a covenant on the part of the lessee not to assign, with a forfeiture of the lease in case of breach, it had been assigned to H., and the lessors had accepted rent from him, with knowledge of such assignment. Plaintiff and S. & L. took possession of the premises with the consent of H. They afterward objected to the title they acquired by the assignment from H., unless a written consent to such assignment should be given by the original lessors, and H. agreed to obtain such consent if possible. The consent could not be obtained for the reason that one of the original lessors had died, leaving infant heirs, and plaintiff aud S. & L. refused to perform said agreement on their part, and surrendered possession of the premises to H. Held, that the acceptance of the rent, after the assignment, by the lessors, was a waiver of the forfeiture, and the condition once dispensed with was dispensed with forever, and H. could assign and give a good title to the lease.

Also held, that as the agreement of H. to procure the consent of the lessors to the assignment was conditional, and the event upon which it was conditioned did not come to pass, it was not enforceable, and the agreement of sale and purchase remained in full force. A negotiation for a variation of an agreement will not amount to a waiver of it, unless the circumstances show an intention of the party that there should be an absolute abandonment and dissolution of the contract.

Also held, that the fact that parol proof of the facts constituting a waiver of the forfeiture was necessary to show a valid title in H. did not render his title so doubtful as to authorize plaintiff to refuse to accept an assignment, and to maintain an action to recover back the purchase-money paid. Defendant in defending such an action was not required to make other or higher proof than would be required if the original lessors or their successors in interest had sought to dispossess him on the ground of the forfeiture of the lease.

It seems that in such case the title of the assignee is sufficient to sustain an action for specific performance against one who had contracted to purchase the lease.

Murray v. Harway, impleaded, etc. Opinion by Folger, J.

EVIDENCE.

Pawnbroker: receiving stolen property.- Plaintiff in error, who was a pawnbroker, was convicted of receiving property, knowing it to have been stolen. On the trial evidence was given that the accused had frequently received similar articles of property, under like circumstances, from the same thief, stolen from the same person or place, knowing that they were stolen. Held, that this evidence was proper upon the question of guilty knowledge.

Also held, that the prisoner being a pawnbroker this evidence was not incompetent because it established that the accused was also guilty of violating another statute or an ordinance prohibiting licensed pawnbrokers from buying property.

It was also proper to receive evidence of the conversations between the parties upon the former occasion, as part of the res gestæ, and to show that the former receipts were with knowledge. Copperman v. People. Opinion by Church, Ch. J.

HUSBAND AND WIFE.

Death of husband: conveyance of property by widow.Plaintiff brought this action to compel a reconveyance of certain premises formerly conveyed by her to defendant L. D. C. It appeared that plaintiff's husband had purchased said property, which was a hotel, together with a large amount of furniture therein; he had it conveyed to plaintiff, who was his wife. While engaged in repairing it he was taken sick and died, leaving plaintiff, his widow, and four children him surviving. Upon his death bed, his property being incumbered, and he owing a large number of debts, he requested defendant, L. D. C., his brother, to take charge of his business and the property after his death and to manage the same and do the best he could therewith for the benefit of his wife and children, and he requested plaintiff to convey the property to L. D. C. for that purpose. After her husband's death plaintiff conveyed the property to L. D. C. as requested, and he took charge of the same, and advanced large sums in discharging the liens and incumbrances. The court below held that plaintiff was not entitled to a reconveyance, but that by the deed L. D. C. became the owner in fee for the benefit of plaintiff and the children of deceased, and directed that the property be sold by a referee, and that L. D. C. be reimbursed out of the proceeds his advances, expenses and disbursements, and also be allowed for his services, and that the residue be divided into five equal parts, one part to be paid to plaintiff, and one to each of her children. Held, that plaintiff had no rights in the premises which she could assert at law or in equity, and that she had no reason to complain of the judgment. Collins v. Collins et al. Per curiam opinion.

INSURANCE.

1. Re-insurance.-This is an action upon a policy of re-insurance, issued by defendant to the North American Insurance Co., of which company plaintiff is the receiver. Plaintiff's company issued a policy to K. & Co. for $5,000 upon a stock of goods. On the same day defendant re-insured said company for $2,500 on said risk, the policy of re-insurance contained this clause: "Loss, if any, payable pro rata and at the same time with the re-insured." The property insured was destroyed by fire, and the loss adjusted at $4,407.62. The North American Insurance Co. became insolvent, and

plaintiff, as receiver, has declared dividends of fortyfour per cent on all claims against the company, and that per cent is all that has been or will be paid to the original assured upon their policy. Plaintiff claimed to be entitled to recover one-half the amount of the loss, and defendant claimed that it was only liable to pay one-half the amount actually paid to K. & Co. Held, that defendant, by virtue of the first part of the clause, "Loss if any, payable pro rata at the same time with the reinsured," was not bound to pay the full amount reinsured, but only one-half the loss; that by the latter part actual payment by the re-insured upon its policy was not required to precede or accompany payment by defendant, but it merely fixed the time for payment, to wit., the same time as was fixed for payment by the re-insured; that the extent of the liability of defendant was not affected by the insolvency of the re-assured, nor by the latter's inability to fulfill its contract with the original insured. Blackstone, rec'r, etc., v. Ale. Fire Ins. Co. Opinion by Johnson, J.

2. Warranty. This action was brought upon a policy of insurance. The application for the insurance contained a valuation of the lands and buildings, which was excessive, and concluded as follows: "The applicant hereby covenants and agrees that the foregoing valuation, description and survey are true and correct, and they are submitted as his warranty and the basis of the desired insurance." The only reference in the policy to the application was a statement that the insurance was 66 'on the following property, as described in application." Held, that this only adopted that portion of the application describing the property, and that there was no warranty as to value. In an application for insurance, no part can be regarded as a warranty, unless made so by the contract of insurance. The parts not adopted and made the basis of the contract, so as to constitute warranties, are to be treated as representations not prejudicing the rights of the insured, unless they are material to the risk, are untrue, and were not made in good faith. Owens v. Hol. Pur. Ins. Co. Opinion by Grover, J.

JUDGMENT.

Application to open.-This was an application made to the Supreme Court at special term for leave to open a judgment and to allow the defendant, Cynthia B. Dewey, to come in and defend. The application was granted by the special term, and on appeal the general term reversed the order, one ground of the decision being that said defendant had been guilty of laches, the motion not having been made until fourteen years after the motion was made. Held, that the application was addressed to the discretion of the court, the power to review that discretion belonged to the general term, but this court has no power to review the decision of the latter. Dupew v. Dewey. Per curiam opinion.

NEGLIGENCE.

Injuries to person: jurisdiction of justice of peace: effort to escape danger: witness.-This action was brought to recover damages for injuries alleged to have been caused by the negligence of defendant's servants. It was originally commenced in justices' court in April, 1870. It appeared that plaintiff was walking on the sidewalk of a street in Syracuse, when an express wagon of defendant's came up behind her, being driven rapidly upon the sidewalk. Plaintiff sprang sideways to escape the danger, and, in so doing, struck her head against the wall of a building, and was injured. Held,

that under section 53 of the Code, as amended in 1862 (sub. 2), a justice of the peace has jurisdiction of an action for injuries to the person.

Also held, that plaintiff's instinctive effort to escape the danger, resulting from defendant's negligence, did not relieve the latter from liability; that the law did not require a delay in the effort to escape until the exact nature and measure of the danger is ascertained.

Upon the trial plaintiff called one W. to prove that he was in the defendant's employ. W. was afterward called as a witness for defendant, and testified that he did not drive upon the sidewalk. He was asked, on cross-examination, if he did not make a declaration to one McC., substantially admitting that he did drive upon the walk. This he denied. After defendant rested, McC. was called as a witness for plaintiff, and testified to the making of the declaration. Defendant objected to this, on the ground, among others, that plaintiff could not impeach her own witness. The objection was overruled. Held, no error; a party may contradict his own witness as to a fact material in the case, although the effect of the proof may be to discredit him. Coulter v. Am. Mer. U. Ex. Co. Opinion by Johnson, J.

PROMISSORY NOTE.

Husband and wife: surety.-This action was brought upon a joint promissory note, executed by the defendants, who were husband and wife. The wife answered, alleging that she signed the note as surety for her husband. It was given for a water-wheel, purchased by the husband and put into a mill upon premises owned by the wife. The case was tried by the court without a jury, and it found that the husband purchased the wheel as agent for his wife. The only question in this court is as to whether there was any evidence to sustain this finding. It appeared that the wheel was purchased without the wife's authority or knowledge, and the only evidence from which it could be inferred that she knew for what the note was given or that she adopted the purchase as her own, although made in her husband's name, was her signing the note first, in the usual place for a principal, and that neither of the defendants would swear that the wife did not know for what the note was given. The wife swore she signed the note as surety. Held, that, under the circumstances, the signature, although slight, yet was some evidence to sustain the finding. Clark et al. v. Halstead et al. Per curiam opinion.

NEW TRIAL ON APPEAL FROM JUSTICE'S JUDGMENT.

A correspondent sends us the following note of a case decided at the June general term of the fourth department, but in which no opinion was written, and adds that "the point decided has never been passed upon in any reported case except by the Herkimer county court, in 38 How. 107." The case was Johnson v. Dow.

The action was brought in a justice's court to recover for the alleged wrongful conversion of a promissory note. Plaintiff claimed judgment for $45. Defendant, after denying the complaint, alleged that the said note was his property, and that the transaction mentioned in the complaint was in fact a wrongful and unlawful conversion, by plaintiff, of defendant's property, the said note, of the value of $100. Defendant also alleged that plaintiff was indebted to him in the sum of $100 for money loaned plaintiff by defendant in 1873 and not repaid, and claimed judgment for $100.

Without any objection being made to this answer the parties went to trial. The defendant offered no evidence. Judgment having been rendered against the plaintiff he appealed to the county court of Cattaraugus county for a new trial, under section 352 of the Code. That court made an order denying a new trial therein, and declaring the case one for argument on the justice's return. From this order the plaintiff appealed.

F. S. Smith, for appellant.

B. F. Congdon, for respondent.

By the COURT. Section 352 does not entitle the appellant to a new trial under the pleadings in this case. The order of the county court must be affirmed, with $10 costs.

RECENT AMERICAN DECISIONS.

ACCESSION TO LAND.

Ownership of building.-Where one voluntarily erects a building upon the land of another, without any contract with the owner of the soil, and against his consent, the building becomes a part of the realty, and belongs to the owner of the land. Bonney v. Foss, 62 Me. 248.

COIN.

Contracts, how payable. The defendant agreed to pay the plaintiffs a commission of five per cent on the charter of a vessel hired for $33,000 in hard Spanish dollars, i. e., $1,665. Held, that Spanish dollars being equivalent to ours, the brokerage should be paid in the coin of the United States, with interest from the day it was payable, and that execution should issue specifically for the coin. Stringer v. Coombs, 62 Me. 160.

LOST GOODS.

Finder's title.-Lost goods, as against all persons but the original owner and those deriving title from him, belong to the first finder who does such acts as indicate an intention to take possession of them. Lawrence v. Buck, 62 Me. 275.

NEGLIGENCE.

1. Objects in highway: proximate cause of injury.— Where the evidence tended to show that the defendants

negligently piled their boards in the traveled path of a public highway; that a wagon loaded with barrels was driven over these boards, causing a rattling noise which frightened the plaintiff's well-broken and carefullydriven horse; that the horse being frightened by the noise, suddenly started and threw the plaintiff, while carefully driving, out of his wagon, whereby he was seriously injured. It was held, that a nonsuit could not properly be ordered, and that it was for the jury to determine whether or not the defendants' acts were the proximate cause of the plaintiff's injury. Lake v. Milliken, 62 Me. 240.

2. Every wrong-doer is at least responsible for all the mischievous consequences that might be reasonably expected, under the circumstances, to result from his misconduct. Ib.

3. Where an injury is the result of two concurring causes, the party responsible for one of these causes is not exempt from liability, because the person who is responsible for the other cause may be equally culpa

ble. Ib.

PAYMENT.

Absolute and conditional.-If a creditor takes unconditionally a cash order drawn upon him, in satisfaction of his debt, the debt is thereby paid; if the order be taken conditionally the debt will be paid so

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