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warehouse. There they remained until March 20, 1883, on the route beyond. A carrier in such case does not
New York at this time. The same doctrine was laid
stand that the liability of an insurer is upon some one transported to Hancock; and if the goods were not so durivg the whole period. The duty of the one is not delivered or offered to be delivered, plaintiff was en
discharged until it has been imposed upon the succeedtitled to recover.
Under this instruction the plaint- ing carrier, and this is not done until there is delivery iff had judgment, and the defendant brings error. of the goods, or at least such a notification to the suc
The question which the instruction presents is one ceeding carrier as according to the course of the busi-
arrangement to which the plaintiff was not a party, waived. Code, & 499. The gist of the action was the and the defendant could not, by means of it, relieve procuring of an order of arrest by defendants under itself of any liability which duty to the plaintiff im- the Stillwell Act. The facts stated in the affidavit, posed. And it was clearly its duty to the plaintiff, as upon which the warrant was granted, were sufficient we think, to relieve itself of the responsibility of the to give the judge who issued it jurisdiction. It was goods remaining for an unreasonable time in its ware- subsequently set aside by said judge, upon affidavits house, and to do this it was necessary that the respon- showing that plaintiff had previously been arrested in sibility be transferred to the carrier next in line. But an action brought against him by defendants, upon an the mere permission to inspect its books and take order of arrest issued for the same cause, and substanwhatever was ready for carriage would not do this; tially upon the same grounds. In an action for false there should have been distinct notice which would imprisonment, held, that the warrant was not void or apprise the other carrier that defendant expected the irregular, but at most simply erroneous, and so that removal of the goods.
the action was not maintainable. The remedy of the In this case there were no facts indicating a renun- party unjustly arrested or imprisoned is by the reciation, as to these goods, of the liability of common covery of costs which may be awarded to him, or the carrier by the defendant, or that it was supposed by redress which some statute may give him, or by an acthe agents of the defeudant that that character had tion for malicious prosecution, in case the prosecution been exchanged for any other. If it ever was, it must against him has been from unworthy motives and have been at the moment the goods were received, for without probable cause. Eveu malicious motives and nothing took place afterward to change the relation of the absence of probable cause do not give a party the defendant to the goods until the fire took place. arrested an action for false imprisonment. They may But we are not ready to assent to the doctrine that a aggravate his damage, but have nothing whatever to railroad company, as to goods transported by it, ceases do with the cause of action. Hence if in this case the to be carrier the moment the goods are received at its defendants had intentionally withheld from the judge warehouse. We do not think that is the law, or that who granted the warrant the fact of the plaintiff's it ought to be.
prior arrest, that fact would have been quite pertinent The judgment should be affirmed.
to maintain an action for malicious prosecution, but Champlin and Sherwood, JJ., concurred.
would not have laid the foundation for a recovery in CAMPBELL, J. In this case it is admitted by the un- an action for false imprisoument. We have carefully disputed facts that the property in question had been examined many authorities, and have not found one in defendant's warehouse for a longer time than was which decides that in a case like this an action for generally necessary for the removal of goods by the false imprisonment can be maintained. They all susultimate carrier, and that the failure was due to a tain the views above expressed. Williams v. Smith, lack of means of removal in the latter. It also appears 14 C. B. (N. S.) 596; Hayden v. Shed, 11 Mass. 500; that the property was in a warehouse from which the Reynolds v. Corp, 3 Caines, 268; McGuinty v. Herrick, last carrier always took it without any further cere- 5 Wend. 240; Chapman v. Dyett, 11 id. 31; Deyo v. mony, and that this carrier was always informed by Van Valkenburgb, 5 Hill, 242; Landt v. Hilts, 19 Barb. inspection of the way-bills and knew of the goods be- 283; Simpson v. Hornbeck, 3 Lans. 53; Miller v. Adams ing ready for removal. I think that under such cir- rid. 131; affirmed, 52 N. Y. 409; Palmer v. Foley, 71 cumstances defendant no longer remained responsi- id. 106; Dusenbury v. Keiley, 85 id. 383; Day v. Bach, ble as carrier, but became subject to no more than a 87 id. 56. In Williams v. Smith, Williams, J.,
said: warehouseman's responsibility as soon as the last car- The party causing process to be issued is not rerier had actual notice and could have removed them, sponsible for any thing that is done under it and that respondent is not to be prejudiced by the when the process is afterward set aside, not for lack of facilities in that carrier, who had the same irregularity, but for error. And Byles, J., said: means of access to and control over the goods. Such “There is a manifest distinction between setting aside seems to me the purpose of our statute, which does process for irregularity and reversing a proceeding for not declare or provide that the liability of warehouse- error on appeal. In the one case a man acts irregularly men for goods awaiting delivery shall not arise when and independently, without the sanction of any court. the real duties of carrier have been fulfilled, but He therefore takes the consequences of his own unaumerely requires that the responsibilities attaching thorized act. But wheu he relies upon the judgment to a carrier shall not be lessened while that relation of a competent court, however erroneous that judg. exists.
ment may be, the party acting upon the faith of it [See 68 III. 471; 44 N. Y. 507-8; 2 Am. Rep. 130, 242, ought 'to be protected.” (2) Plaintiff was properly 391 ; 21 Eng. Rep. 68; 63 Ala. 219.
nonsuited, as to the cause of action for malicious prosecution. The burden of showing want of probable
cause for his arrest was upon him, and he gave no eviNEW YORK COURT OF APPEALS ABSTRACT. dence whatever upon that subject. Not only this,
upon his objection, evidence on the part of the defend
ants to show probable cause was excluded. Marks v. PLEADING-MALICIOUS PROSECUTION
Townsend. Opinion by Earl, J. [As tv (1) see 88 N. IMPRISONMENT MAY BE JOINED-ORDER OF ARREST
Y. 270; 18 W. Dig. 108; 16 id. 240; 2 Civ, P. R. 217, FALSE IMPRISONMENT DOES NOT LIE-MALICIOUS PROS
contra, 61 How. 353.] ECUTION-PROBABLE CAUSE.-(1) The complaint al
[Decided Jan. 20, 1885.) leges two causes of action, to wit, one for malicious prosecution and another for false imprisonment. As STATUTE OF FRAUDS-PAROL AGREEMENT PARTLY they are both for personal injuries they could be con- PERFORMED.--Plaintiff was lessee of a store for the tained in the same complaiut. Code, $ 484. They are term of five years, at an annual reut, payable quarconsistent with each other, and the one is not destruc- terly; he owned or controlled a one-half interest tive of the other, and it has been common practice to in the stock of goods in the store; the defendant unite them, Doyle v. Russell, 30 Barb. 300; Barr v. at the same time was the owner of a paper mill in that Shaw, 10 Hun, 580; Dusenbury v. Keily, 85 N. Y. 383, city; and it was agreed that the defendant should sell 389; Carl v. Ayers, 53 id. 14; Bradner v. Falkner, 93 id. to the plaintiff the mill and its machinery, and re515. But as the objection to the joinder was not taken ceive in payment therefore certain uotes and mortgain the answer or by demurrer, it was in any event ges, the half interest in the stock of goods, and as the
plaintiff's testimony tends to show, the possessiou of date, with interest at the rate of eight per cent per anthe store for the unexpired term (then about fourteen num,the defendant, besides pleading the general issue, months), and the defendant on his part agreed to pay pleaded that the plaintiff ought not to recover $992 of the rent to the lessors for that term. This term of the the amount of the note sued on, with the interest on agreement is denied by the defendant. It is however said sum, because N. C., the testator, after becoming uncontroverted that the defendant, on the same day, the owner of the note, made, on February 4, 1876, a was placed in possession of the store and goods by the verbal agreement with D., the maker, by which he plaintiff; that he carried on business there until the contracted to receive from D. interest at the rat of 3th of May following, and paid the lessors rent up to ten per cent per annum, payable quarterly, upon the that time when be sold out, and making no further full amount of principal and interest due on the note payment, this action is brought to recover the sums at its maturity, to wit, $4,960, and in pursuance of such unpaid. Held, that the agreement was not within the agreement did, between February 4, 1876, and January statute of frauds and that plaintiff was entitled to re- 1, 1878, receive as illegal interest eight payments of cover. The appellant puts his appeal upon the statute $124 each, amounting to $992, the court instructed the of frauds. We think it has no application, and that jury that the only remedy for the recovery of money the case was properly submitted to the jury. If as paid for interest in excess of the interest allowed by they have found, the plaintiff's version of the trans- law, is suit brought under section 716 of the Revised action was the true one, the defendant's promise to Statutes of the District of Columbia within one year, pay the rent was upon a new consideration, which and that the prohibition contained in section 715 of moved directly to him, and it was made for his own the Revised Statutes of the District of Columbia apbenefit, and not for the benefit of the plaintiff. The plies exclusively to cases in which illegal interest has general object and purpose of the transaction, or the been contracted for, but not paid. Held, that the in"res gestae" as it is termed in Williams v. Leper, 3 struction was correct. In Farmers' etc., Nat. Bank v. Burr. 1886, shows that the intention of the parties was Dearing, 91 U. S. 29, the court declared that the pennot that the defendant should become responsible for alty imposed on a national bank for taking a greater the payment of the plaintiff's debt to the lessors, but rate of interest than that allowed by the National that he could assume, as a new and independent duty, Banking Act, was the loss of the entire interest, and that of paying to the landlord the rent specified in the that no loss of the entire debt was incurred by the lease. This obligation was part of an uydivided trans- bank as a penalty by reason of the provisions of the action and stands upon the whole as a consideration. usury law of a State. So in Barnet v. National Bank, It comes therefore within the principle under which 98 U. S. 555, it was held that in a suit by a national it has been often decided, that the purchaser is bound bank against the parties to a bill of exchange disby his promise to pay the price to a creditor of the counted by it, the assignees of the acceptor could not, vendor, although it is not in writing and the vendor having intervened as parties, set up by way of counterremains bound. Leonard v. Vredenburg, 8 Johne. 29; claim or set-off that the bank knowingly took and was Barker v. Bucklin, 2 Den. 45; Mallory v. Gillett, 21 N. paid a greater rate of interest thereon than that alY. 412. It is also apparent that there was a complete lowed by law, but that the National Banking Act harperformance by the plaintiff, and an acceptance of that ing prescribed as a penalty for the taking of such unperformance by the defendant. The plaintiff received lawful interest that the person paying the same might, from the defendant the mill property, and turned out in an action of debt against the bank, recover back to him the mortgages, notes and money, stock of goods twice the amount so paid, he could have redress in no and possession of the store, and these things the de- other form or mode of procedure. So in Driesbach v. fendant received and retained according to his pleas
National Bank, 104 U. S. 52, it was held that usurious ure. Every thing has been performed except his interest paid to a National bank on renewing a series promise to pay the rent in question. The judgment
of notes, of which those in suit were the last, could in this case calls for nothing more, and justice re
not be applied in satisfaction of the principal of the quires that it should be paid. Kohler v. Matlage, 72
debt. See also Cook v. Lillo, 103 U. S. 792, and Walsh N. Y. 259. It would be a perversion of the true pur
v. Mayer, 111 id. 31. In the case last cited it was held pose of the statute to give it such construction as generally that a statute which prescribes a legal rate would protect the defendant in the enjoyment of ad
of interest, and forbids the takivg of a higher rate, vantages obtained from the plaintiff in reliance upon
under penalty of a forfeiture of the entire interest, an oral agreement on which the latter acted. If the and declares that the party paying such higher rate of plaintiff had refused to put the defendant in posses
interest may recover it back by suit brought within sion, he could have rescinded the contract; if he in
twelve months, confers no authority to apply the usuterfered with his possession, he could sue for damages
rious interest actually paid to the discharge of the (Gray v. Hill, Ryan & Moody, 420); if for his security
principal debt, and that a suit for its recovery brought au assignment in writing of the lease was necessary,
within twelve months was the exclusive remedy. or a written contract for the possession, a court of
There was therefore no error in the refusal of the court equity would bave compelled its execution; but
to charge as requested or in the charge given. Carter neither of these things is asserted. The case is within
v. Carusi. Opinion by Woods, J. the established rule that a parol agreement in part
[Decided Dec. 15, 1884.] performed is not within the provisions of the statute. STATUTE CHINESE IMMIGRATION. The fourth Stuart v. Stuart. Opinion by Danforth, J.
section of the
of Congress approved May [Decided Jan., 1885.]
6, 1882, ch. 126, as amended by the act of July 5, 1884, ch. 120, prescribing the certificate which
shall be produced by a Chinese laborer as the "only UNITED STATES SUPREME COURT AB- evidence permissible to establish his rights of reSTRACT.
entry into the United States, is not applicable to
Chinese laborers, who residing in this country at the NATIONAL BANK-PENALTIES FOR TAKING USURY.
date of the treaty of November 17, 1880, departed by Where in an action bronght in the District of Colum- sea before May 6, 1882, and remained out of the United bia by the executors of N. C., deceased, against C., as
States until after July 5, 1884. The rule is well settled indorser upon a note dated May 29, 1873, made by J.
that repeals by implication are not favored, and are D. for the payment to C. of $4,000, three years after never admitted where the former can stand with the
Scofield. new act. Ex parte Yerger, 8 Wall. 105. In Wood v.
Opinion by Cassoday, J. [See 46 Am. U.S., 16 Pet. 362, Mr. Justice Story, speaking for the Rep. 37.] court upon a questiou of the repeal of a statute by [Decided Nov. 6, 1884.] implication, said: “That it has not been expressly or
RAILROAD-FENCES--INJURY TO CATTLE-ONUS ON by direct terms repealed is admitted, and the question
PLAINTIFF-NONSUIT PROPER.–Under section 1810 of resolves itself into the narrow inquiry whether it has
the Revised Statutes (ch. 193, L. 1881), in order to rebeen repealed by necessary implication. We say by
cover for the killing of an animal upon a railroad track necessary implication, for it is not sufficient to estab
at a point where it was uufenced, the owner must lish that subsequent laws cover some, or even all, of show that such animal got upon the track at a point the cases provided for by it, for they may be merely
where the company is bound so maintain a fence, and affirmative, or cumulative, or auxiliary. But there
had neglected to do so. So where there was nothing must be a positive repugnancy between the provisions in the evidence to show that the animal did not go of the new laws and those of the old, and even then
upon the depot grounds, which the company was not the old law is repealed by implication only pro tanto
bound to fence, and thence along the track to the to the extent of the repugnancy.” In State v. Stoll, place where it was killed, a nonsuit should have been 17 Wall. 430, the language of the court was that “it granted. Bremmer v. Green Bay, etc., R. Co. Opinmust appear that the latter provision is certainly and
ion by Cassoday, J. clearly in hostility to the former. If by any reasonable construction the two statutes can stand together,
[Decided Sept. 23, 1884.] they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part MINNESOTA SUPREME COURT ABSTRACT. or wholly, as the case may be.” See also Ex parte Crow Dog. 109 U. S. 570; S. C., 3 Sup. Ct. Rep. 396; Arthur v. Homer, 96 U. S. 140; Harford v. U. S., 8
SHIP AND SHIPPING-ADMIRALTY JURISDICTIONCranch, 109. The entire argument in support of the
PART OWNERS OF STEAMBOAT-ACCOUNTING-SALEjudgment below proceeds upon the erroneous assump
STATE COURT.--S. owns one-third of a steamboat plytion that Congress intended to exclude all Chinese la- ing upon the navigable waters of the United States, borers of every class who were not in the United and K. the other two-thirds. K. had for several years States at the time of the passage of the act of 1882, in
run the same for himself and S. There being a differcluding those, who like the plaintiff in error, were here
ence between them as to the state of the accounts of when the last treaty was concluded, but were absent her earnings and expenses, and S. being dissatisfied at the date of the passage of that act. We have stated
with K.'s management of the boat and its business, the main reasons which in our opinion forbid that and apprehensive of loss from its continuance, S. may interpretation of the act of Congress. To these may
maintain an equitable action in a District Court of this be added the further one, that the courts uniformly State for a partition of the boat by sale, and for an aorefuse to give to statutes a retrospective operation, counting, and upon a proper showing the court may whereby rigŁts previously vested are injuriously af- properly direct an accounting, a sale, and the appointfected, unless compelled to do so by language so clear
ment of a receiver to effect it. The directing of an acand positive as to leave no room to doubt that such counting between persons occupying the relations of was the intention of the legislature. In U. S. v. Heth, plaintiff and defendant, the appointment of a receiver 3 Cranch, 413, this court said that “words in a statute and the partition of personal property by sale or othought not to have a retrospective operation unless erwise, are not common-law, but equitable remedies. they are so clear, strong and imperative that no other Judd v. Dike, 30 Minn. 380; Freem. Co-tenancy, $426; meaning can be annexed to them, or unless the inten- Pom. Rem., $ 221; 3 Pom. Eg., $ 1329. They are theretion of the Legislature cannot be otherwise satisfied;" fore properly sought in the present action (Judd v. and such is the settled doctrine of this court. Mur- | Dike, supra), and properly given by the judgment apray v. Gibson, 15 How. 423; McEwen v. Den, 24 id. pealed from, unless relating as they do to a vessel 244; Harvey v. Tyler, 2 Wall. 347; Sohn v. Waterson, plying upon the navigable waters of ihe United States, 17 id. 599; Twenty per cent cases, 20 id. 187. Chew | they are such as are afforded in “civil causes of admirHeong. Opinion by Harlan, J.
alty and maritime jurisdiction," or what must be an [Decided Dec. 8, 1884.]
equivalent expression in “civil causes," in the words of the Federal Judiciary Act (Rev. Stat. U. S., $ 503), or “civil cases,” in the synonymous expression of the
Federal Constitution (art. 3, & 2) in courts of admiralty. WISCONSIN SUPREME COURT ABSTRACT.
If the remedies sought in this action are not afforded
in admiralty then the subject matter of the action is AGENCY-MIDDLEMAN-COMMISSIONS
not within admiralty jurisdiction. Spear Fed. Jud. PARTIES.-One who in the sale or exchange of prop- The following propositions appear to be well settled: erty, acts merely as a middleman to bring the parties First. A court of admiralty will not direct the sale of together, they making their own contract, may re- a vessel for the purpose of effecting a partition becover compensation from both parties. Herman v.
tween different owners, except (1) as between two perMartineau, 1 Wis. 151; Stewart v. Mather, 32 id. 344; sous, each of whom owns one-half of the vessel, in Barry v. Schmidt, 57 id. 172; Rupp v. Sampson, 16
since the rule giving control to a majority Gray, 398; Mullen v. Keetzleb, 7 Bush, 253; Siegel v. interest cannot operate, the court will interfere out of Gould, 7 Lans. 177; Shepherd v. Hedden, 29 N. J. L. regard for the public interest, in commerce or naviga334. But where the person so doubly employed is more tion; or except (2) (as some authorities hold), upon the than a mere middleman, and acts as broker or agent application of a majority interest in the vessel under in effecting the sale or exchange, he cannot recover; special circumstances. Steamboat Orleans v. Phæbus, especially where the party sought to be charged was at 11 Pet. 175; Tunno v. The Betsina, 5 Am. Law Reg. the time ignorant of the employment by the other 406. Second. A court of admiralty will not order an party. Meger v. Hanchett, 39 Wis. 419; S. C., 43 id accounting as a separate and independent mode of rør 246; Shirland v. The Monitor, 41 id. 162; Scribner vi lief, but only as incident to other matters of which it Collar, 40 Mich. 375; Rice v. Wood, 113 Mass. 133.
has admitted cognizance. Curt. Pr. 273; Tupno 1: Here the evidence on the part of the plaintiff showed The Betsina, supra; Kellum v. Emerson, 2 Curt. C.C. that Sweet acted as a middleman merely. Orton v. 79; Steamboat Orleans v. Phæbus, supra; Davis v.
Child, Davies (2 Ware), 78; The Larch, 3 Ware, 28.
DENIALS ON INFORMATION AND BELIEF.
The communication of “H." (31 A. L. J. 159) sugjurisdiction to order the sale itself. From these three propositions it follows that the subject matter of the gests the remark that the language of the old Code as
to the contents of an answer is the same as that of the present action - the remedies sought and afforded in it - do not fall within the purview or scope of civil
new. They both say that the answer must contain a
denial of the controverted allegations or (a denial) of causes in cases in admiralty and maritime jurisdic- any knowledge or information thereof sufficient to tion. Swain v. Knapp. Opinion by Berry, J.
form a belief (of such allegations). The answer has [Decided Nov. 25, 1884.]
nothing to do with such knowledge or information as NEGLIGENCE-SUBMISSION OF QUESTION TO JURY
may be sufficient to form a disbelief. It follows that EVIDENCE-FAILURE TO RING BELL.-In an action to denials and belief are superfluous, denials of knowlrecover damages for injuries from a collision at a rail- | edge or information being what are demanded. Where way crossing with the wagon in which plaintiff was the answer denies any knowledge or information of a riding, her evidence tended to show that the team was
fact alleged sufficient to form a belief of it, such fact driven with care, and that plaintiff and the driver is not admitted and the plaintiff is put to his proof, were watching the road, and looking and listening for and that conforms to the old chancery practice, and is indications of danger as they approached the crossing: all that the Code requires or intends. that they heard no signal, and had no warning of the
Respectfully, approach of an engine from the west, but were unex
B. W. HUNTINGTON. pectedly overtaken by a switch engine from that di
NEW YORK, April 7, 1885. rection, running backward down grade at a high rate of speed, with steam shut off, and without signals of PROVING WILLS IN TESTATOR'S LIFE-TIME. its approach, which they did not discover till too late
Editor of the Albany Law Journal: to avoid a collision. They were going east, the rail
In view of the discussion lately carried on in the road being on their left, and approaching the street at
newspapers and Legislature of New York about a proa sharp angle, and above there was a cut which par- posed law for establishing wills during the life-time of tially obscured the vision, terminating about 200 feet testators, there may be some interest for your readers from the crossing. The evidence also shows that they in a decision just rendered by the Supreme Court of had previously looked several times up the road in that
this State, declaring ivoperative the Michigan statute direction, the last time when at a point from 50 to 70 relating to that subject. Public Acts, 1883, p. i7. feet from the crossing, and in the interval of about 10
In opinions by Judges Cooley and Campbell, the law seconds they were listening for signals or indications of
is criticised as making no sufficient provisiou for its a coming train, their attention being also arrested by
own enforcement, without conflict with other statthe presence of another switch engine standing below
utes not meant to be repealed. This first attempt in the crossing apparently ready to move. Held, tbat
our jurisprudence to compel a living person, as a conwhether the plaintiff was in the exercise of that de
dition of relief, to enter upon a contest with those who gree of care which persons of ordinary prudence and
until his death can have no recognition anywhere, and intelligence would exercise in a similar situation de
who after his death are presumed to represent him and pends upon the consideration of a variety of circun
not any hostile interest, is said to remove none of the stances and inferences of fact which were proper for difficulties aimed at, but rather to make them worse. the judgment of a jury. And for substantially the It is not conceived possible that a proceeding can be same reasons that controlled the decision of this court dealt with as judicial, when the chief party to it will in Loucks v. Railroad Co., 31 Minn. 530, we think this
not be precluded by the decree from doing exactly as case was properly submitted to the jury. French v.
he might have done had the court never been called Railroad, 116 Mass. 540; Chaffee v. Railroad Corp. 104
on to act at all. The result is that the courts canuot id. 116; Stackus v. Railroad Co.,79 N. Y. 467; Ochsen- be called on to administer the law. bein v. Shapley, 85 id. 224; Baldwin v. Railroad Co.,
While it was to be expected that this new and singu18 N. W. Rep. 884; Butler v. Railroad Co., 28 Wis.
lar statute might be faulty, the learned judges point 504; Gaynor v. Railway Co., 100 Mass. 212. Excep-out difficulties more radical than have before been pubtions were taken by defendant's counsel to certain in- licly suggested; and it may well be doubted if the law structions given by the court, to the effect that the
will ever recognize that new anomaly-what shall we failure to ring the bell or sound the whistle, and to
call it-a living testator with will annexed ? keep a lookout for the crossings, if so the jury found
Yours truly, the fact to be, was evidence of negligence, as it also
JAMES C. SMITH, JR. was to run the engine at a dangerous rate of speed.
DETROIT, MICH., April 11, 1885.
THE INTEREST QUESTION.
, 100 Mass. 213; Wylde v. Railroad Co., 53 N. Y. calendar months which vary in length from 28 to 31 161: Eppendorf v. Railroad Co., 69 id. 197 ; Owen v. days. Consequently from any day of one month to Railroad Co., 35 id. 518; Shear. & R. Neg., § 31. the corresponding day of the following or of any sucHutchinson v. St. Paul, etc., R. Co. Opinion by Van.ceeding month is one, two, or more calendar months. deuburgh, J.
And in the case supposed from October 28 or any later [Decided Oct. 13, 1884.)
day in the same month to February 28 (not bissextile)