of the wife's land, to secure the husband's debt, only the name of the husband appeared in the granting clause, and the wife's name did not appear except in the beginning, in connection with her husband, "as of the first part," the wife had no separate estate in the land. Held, that this instrument created no mortgage of, or valid charge upon, the wife's estate, either at law or in equity; and that purchasers under a valid deed of trust, made after the execution and recording of this instrument, took the title. Shroyer v. Nickell, 55 Mo. 264.] Opinion by SHERWOOD, C. J.Whiteley v. Stewart.

CONSTRUCTION OF WILLS.-The rule in construing wills is to carry out the intention of the testator, and this is to be gathered from the whole taken together, rather than from isolated passages or expressions. So, where a testator gave all of his real estate, valued by him in the will at $3,880, to his son John, and gave to each of several other children and grand-children "one-fourth part of my estate, and also four hundred dollars additional, to equalize what I have heretofore given to my son John" (and made each $400 a charge on the land), it was held that the word "heretofore" was used in the sense of "hereinbefore;" and that "one-fourth part of my estate" referred only to the personal estate, and not to the real estate given to John by the first clause. Opinion by NORTON, J.—Allison v. Chaney et al.

EXECUTIONS-IRREGULAR IN FORM.-In a contest between the purchaser at a sale made by a marshal of the United States, on execution issued out of the district court, and purchasers from the heirs of the execution debtor who took their conveyance in 1845, the marshal's sale having occurred in 1825, although the executions were irregular in that they commanded the marshal to make the debt, interest and loss out of "the goods and chattels, lands and tenements," etc., instead of (as the state law then required) out of the goods and chattels, and "out of the lands and tenements, if sufficient goods and chattels could not be found whereof to levy the same," yet the law presumes that the officer did his duty, and levied on the realty only after he found that there were no goods and chattels; and, after the lapse of fifty years, this court will not declare his act void or insufficient. Opinion by NORTON, J.—Baker v. Underwood.

SHERIFF CIVIL LIABILITY FOR ESCAPE OF PRISONER.When a sheriff negligently permits one in his custody, under an iudictment for an assault with a deadly weapon upon B, with intent to inflict a bodily injury, to escape and go at large, and such person makes a further assault upon A, and threatens to take his life, whereby A is put to expense in having him bound over to keep the peace, A can not maintain an action on the case against the sheriff for the escape, nor for damages from the subsequent acts of the escaped prisoner, as they are not the natural and probable consequence of the escape. Opinion, per CURIAM.— Hullinger v. Worrell.

SPECIAL ASSESSMENTS-CONDEMNATION OF LAND for PARKS-WHO ARE CORPORATE AUTHORITIES OF A TOWN.1. The supervisor and assessor of a town are the corporate authorities of the town to make special assessments for local improvements, within the meaning of the constitutional provision, article 1, secion 9. 2. The supervisor and assessor of the town of North Chicago have the power to make special assessments upon property benefited, for the purpose of condemning land within their town to be added to Lincoln Park, although a small part of the park is sit uated in another town. Opinion by BREESE, J.-People ex rel. Huck v. Gage et al.

SERVICE-SUFFICIENCY OF JURAT TO RETURN BY SPECIAL DEPUTY-WAIVER OF DEFECTS.-1. When a summons is served by a special deputy sheriff, who signs the sheriff's name by -as special deputy, and immediately follows a jurat of a notary public, "subscribed and sworn to before me this" etc., it will be sufficient, and it will be presumed that the deputy was the party who was sworn to the return. 2. If a defendant, after default, appears on the assessment of damages, participates in selecting the jury, cross-examines witnesses, offers evidence, and orders an instruction, he will waive all objections to the service of the summons or return of service. Opinion by SCHOLFIELD, J.-Ryan v.. Driscoll.

COMPLIANCE WITH ORDER of Court-TIME-CERTIFI-CATE OF OPINION NOT ISSUED IN TERM TIME.-Where no specific time is designated for compliance with an order of this court, it will always, before any ulterior proceedings are allowed, fix a time certain, at which the order shall be. obeyed. It is contrary to the rules and course of this court, without a special order, to issue a certificate of any opinion or judgment in term time.-Faircloth v. Isler.

MURDER-PROVOCATION.-Words are not, but blows are a sufficient provocation to lessen the crime of homicide to that of manslaughter. The prisoner went to the house of“ the deceased and asked him if he had said that his (the prisoner's) sons had killed his hogs? And upon the deceased's admitting that he had said so, the prisoner shot at him with his gun; and missing him, ran after and to him, and stabbed him so that he died: Held, that this was murder. Also that the weapons used were, in contemplation of law,. deadly.-State v. Carter.

SUIT FOR RECOVERY OF CROP-JURISDICTION.-Where a plaintiff rented land of the defendant during 1874, not for a part of the crop, and there was no evidence that he agreed to pay any stipulated money rent, or any money rent at all; held, that he could not recover one-third of the crop in an action commenced before a division of the same; nor could he recover for the use of the premises, the demand being less than $200, and within the jurisdiction of a magistrate.-Foster v. Perry.

WRITTEN CONTRACT VARIED BY PAROL EVIDENCECASE STATED.-The doctrine that a written contract can not be contradicted, added to, or taken from, by parol evidence, does not apply to every writing: hence, the fol lowing, executed by defendant: "For and in consideration of two hundred and ninety-eight dollars, I hereby transfer and assign to N. Beckwith, a certain judgment obtained by A. Wade, the plaintiff, against," etc., (describing the judgment). Signed: “ A. Wade, by D. M. Carter, his attorney," is allowed to be explained by parol evidence, and the defendant to show, notwithstanding said paper, that he never received any money from Beckwith for Wade.-Wade v. Carter.

MORTGAGE-SALE WITHOUT DECREE OF FORECLOSURE— WHEN COURT WILL ENJOIN PARTIES.-A mortgagee with a power of sale, is a trustee ;-in the first place, to secure the payment of the debt secured by the mortgage; and in the second place, for the mortgagor, as to the excess. Allowing a mortgagee to foreclose the equity of redemption by a sale made by himself, instead of a decree for foreclosure under sale made under a decree of court, was yielded to after much hesitation; and then on the ground, that in a plainer case it would save the expense of a suit in equity. But when there are equities to be adjusted, or if there is any complication in the account, showing the balance due, and the mortgagee had failed to demand payment of an ascertained balance, or when there are suggestions of oppression, usury and the like, the court would enjoin the mortgagee from settling; or if the sale had been made, the :

MECHANIC'S LIEN-PLEADING.-A complaint to enforce a mechanic's lien on a building for lumber used in its construction is insufficient, if it does not aver that the lumber was furnished for the building. It is not sufficient to aver that the lumber was furnished to the contractor and used in the construction of the building. 45 Ind. 258. Judgment affirmed. Opinion by WORDEN, J.-Crawford et al. v. Crockett et al.

PRINCIPAL AND AGENT.-The act of an agent appointed by an agent will not bind the principal, unless the appointment of such sub-agent was by the authority, express or implied, of the principal, or was afterwards ratified by him. Where an account was placed in the hands of an attorney for collection, who brought suit thereon and recovered a judgment against the debtors, the latter could not claim a credit on said judgment for a sum which they had paid to a person occupying the same room with the attorney, but who failed to pay over said money to the creditors. Even though the attorney had ratified such person's act, the creditors would not have been bound by it, because, if the attorney could not authorize the act, he could not ratify it. Judgment affirmed. Opinion by BIDDLE, J.-O'Conner v. Arnold.

INFANCY DISAFFIRMANCE OF CONTRACT REPAYMENTS.-If an infant wishes to disaffirm a contract after coming of age, he must do it in toto. If he has property in his hands, acquired by the contract, the other party may reclaim it; but if the property has passed from him, or if he has received money, there is no obligation on him to account for the property, or refund the money. It is not necessary that the other party be placed in statu quo. Where a married woman, being a minor, sells her interest in certain real estate, receiving therefor $1,000, and joins with her husband in a conveyance thereof, and after arriving at full age, repudiates and disaffirms her contract, and recovers the real estate sold by a suit in partition against the grantee, the latter can not have an action to recover back the purchase-money paid for said real estate. Judg. ment affirmed. Opinion by WORDEN, C. J.-Dill v. Bowen et al.

COUNTY COMMISSIONERS - POWER TO MAKE ALLOWANCES-APPEALS.-Where a contractor had built a jail and sheriff's residence for a county, to the satisfaction of the board of commissioners, and had lost over $8,000 on the contract, and the board, being satisfied of the loss, in order to partially compensate the contractor, made an order allowing him the sum of $4,430.73 beyond the contract price, held, that the board, although not legally bound to pay beyond the terms of the contract, yet, the county having received the benefit of the contractor's work and materials under such a contract as produced a loss to him, had an equitable right to share such loss with him. Such board has the right to make allowances at its discretion; and where a matter thus rests entirely in the discretion of the board, and not upon any supposed legal obligation, no ap peal lies from its action. 39 Ind. 40; 40 Id. 217. Judgment reversed. Opinion by WORDEN, C. J.-Board of Commissionere of Carroll County v. Richardson et al.

him. 2. That a sale or conveyance of property to hinder or delay creditors is illegal as to creditors only; as between the parties and as to all others than creditors, it is legal and valid. 3. That it is not in the power of a husband to revoke an executed gift from him to his wife. And where the husband has thus put the title of property in his wife and afterwards sold it without her knowledge, taking notes therefor payable to himself, and the rights of creditors do not intervene, such notes are equitably the property of the wife, and the administrator of the deceased husband's estate can not legally claim or recover them. 4. That creditors of a decedent may recover property conveyed by the debtor in his life-time to defraud his creditors, and the administrator may institute the proper proceedings for that purpose; but he must show the existence of creditors at the time the conveyance was made. Judgment reversed. Opinion by HOWK, J.-Garner v. Graves, Adm'r.

EFFECT OF VOLUNTARY APPEARANCE-ATTACHMENTDAMAGES-1. A voluntary appearance of a party to an action which recognizes the general jurisdiction of the court, or which is not made for the special purpose of contesting the jurisdiction of the court, or for any other special purpose, will be construed to be general appearance in the case, and will be held to give the court general jurisdiction in the case over such party. 2. Where a plaintiff, at the com. mencement of an action, obtains an order of attachment, which order is afterwards levied on the defendant's goods, and then the attachment is dissolved on motion of defendant; held, that the defendant can not, in the same suit, and without mentioning the attachment bond in his pleading, have any damage sustained by him on account of said attachment set off against the plaintiff's claim. Opinion by VALENTINE, J.-Carver v. Shelly et al.

SUMMONS ISSUED WITHOUT SEAL-WHEN VOID AND HOW CURED.-1. A summons issued without a seal from a district court is void. 2. In a case in the district court, where a judgment is rendered upon default, and such judgment is assailed in the supreme court, because the court had no jurisdiction of the defendants for the alleged reason that the summons was not attested with the seal of the court, and nothing is presented to the supreme court to sustain the said claim, except the transcript of the record of the court below, which fails to show on the copy of the summons set forth any seal annexed thereto, but the journal entry of the judgment states, the court found, "that due personal service of summons was made upon the said defendants as required by law;" Held, such finding and adjudication of the court are prima facie evidence of the legal authentication of the summons with the seal, and, held, that said judgment will not be reversed upon the record as above stated. Opinion by HORTON, C. J.-Dexter et al. v. Cochran et al.

ACTION ON ADMINISTRATOR'S BOND-WHEN COMMISSIONS FOR SERVICES NOT ALLOWED-OTHER CLAIMS.-1. In an action brought upon the official bond of an administrator, whose letters have been revoked, where such administrator has failed to make any settlement as required by law, has refused to account for the moneys collected, and compels his successor of the trust to resort to litigation to protect the rights of the estate; held, that neither such administrator nor his sureties can reduce the amount due the estate by the commissions of six per centum allowed administrators for their services under section 162, Gen. Stat. 1868, page 468. 2. In an action brought upon the official bond of an administrator to recover money due an estate, where the defendants attempt to reduce the amount sued for by a claim for fees in a suit in the district court, but fail to show that the same is a valid charge against the estate, and fail to show its payment; held, not error for the court below to reject the claim. Opinion by HORTON, C. J.Dryfoos et al. v. Cullinan.

The Central Law Journal.

SAINT LOUIS, MARCH 16, 1877.

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reason.

CURRENT TOPICS.

CHARLES DEVENS, Jr., the new Attorney-General, was, at the outbreak of the war, a law-partner of George F. Hoar, now United States Senator from Massachusetts. He served in the volunteer army from the beginning to the end of the conflict, attaining, we believe, the rank of major-general. Upon his return he was appointed a Judge of the Superior Court of Massachusetts, which office he held until 1872, when he was appointed a Justice of the Supreme Judicial Court, from which position he was called to his present office. He is probably a good, but not a great lawyer. We draw this inference from the fact that at the time he left the Supreme Judicial Court of his state, there were no very able lawyers on that bench, unless its reputation has done it injustice. He will, without doubt, make a safe and respectable attorney-general-a thing which can not be said of one or two of his late predecessors.

ANOTHER murder trial, likely to be famous, has just come to a close at Chicago, with a verdict of acquittal. Hanford, a school superintendent, had written an indiscreet letter in regard to the wife of the defendant. Sullivan, which letter, though written in confidence, leaked out and got into the papers. Sullivan armed himself, went to the house of Hanford, sought a quarrel with him and killed him. Unless all accounts which we have seen of the affair are at fault, it was clearly a case of murder in the first degree. That, after one trial in which the jury disagreed, a second jury should have acquitted him of all crime, is, in the light of many similar trials, not a matter of surprise; but it is calculated again to call public attention to the senseless provisions of our criminal codes in regard to homicide, and to the expensive and shameful farce of our present system of jury trials. The American codes, in their definition of the various kinds of felonious homicide, have perpetuated the subtle and metaphysical distinctions of the middle ages, and, in attempting to improve on the old law, Vol. 4.-No. 11.

new distinctions have been introduced, rendering the subject still more perplexing. We assert with confidence, that very few lawyers understand, except in a vague and general way, the difference between murder in the first degree and murder in the second degree, or between murder and manslaughter. How then shall a jury of twelve unlearned men-a jury selected on account of its blank ignorance and stolidity,— -a jury from which all intelligence has been rigidly expelled,—be expected to learn these distinctions in a single lecture? We insist, as we have heretofore, that there should be no such distinctions as murder or manslaughter; that all man-killing shonld be called homicide; that all homicide should be divided into homicide excusable and homicide felonious; that all felonious homicide should be punishable with death, unless the jury find mitigating circumstances, in which case the judge, and not the jury, should determine the degree of mitigation. A system which, in trials for high crimes, commits all questions, whether of law or of fact, to the ultimate determination of a temporary, ignorant and utterly irresponsible body-a tribunal which assembles to-day and dissolves to-morrow, and which cares nothing about public opinion, because it knows nothing about it-a tribunal whose poor and ignorant members can easily be tampered with and bribed, as experience has often shown;-such a system, although it may be called "the wisdom of ages," is the rankest of folly, as society learns every day to its cost. A measure was lately pending before the Missouri Legislature, which, as we recollect it, gave juries the power in cases of murder in the first degree to remit the death penalty; but it failed to pass for some reason unaccountable to us.

THE Conspicuous manner in which the legal profession is represented in the cabinet of the new President, is calculated to attract attention. Mr. Evarts, the Secretary of State, was the foremost member of the American bar. He was attorneygeneral under President Johnson, and resigned that position to act as counsel for the President in the impeachment trial. In that celebrated contest he won imperishable renown as an advocate. His great powers were again called into requisition two years ago as one of the counsel of Mr. Beecher in the scarcely less celebrated case of Tilton v. Beecher. Again he occupied a conspicuous figure as the principal counsel for the republicans before the late Electoral Commission. His great learning and power as a lawyer are only equaled by his general culture, his integrity of character and purity of life. The Secretary of the Treasury, John Sherman, though a lawyer, has been for many years in public life, first as a representative, then as a Senator from Ohio. He is a brother of the General of the Army. Mr. McCrary, the Secretary of War, is known in the eighth federal circuit as an able lawyer. He was for some time chairman of the House Committee on Privileges and Elections, and, while in that position, he exerted

himself toward making a contest for a seat in that body something in the nature of a judicial proceeding, and not a mere question of the politics of the contestants. As the result of his labors, he published a treatise on the Law of Contested Elections, which has been very favorably received by the bar. Of Judge Thompson, who takes the portfolio of the Navy, we know little, except that he is recognized as a lawyer of decided ability. He has, we believe, taken an active part in political conventions, but has hitherto preferred the practice of the law to the holding of office. At the time of his appointment, he was, we believe, in full practice. Judge Devens, the Attorney-General, had attained about as high a judicial position as an American lawyer can reach, a seat on the Supreme Judicial Bench of Massachusetts,-an office which is filled by appointment of the governor, and held during good behavior. Judge Key, the PostmasterGeneral, was two years ago chancellor of one of the chancery divisions of Tennessee, from which place he was appointed to the senate by the governor of that state, to fill the unexpired term of Andrew Johnson. Mr. Schurz, the Secretary of the Interior, is, we believe, the only member of the cabinet who is not a member of the legal profession. It would be difficult to classify him; but we believe he must be assigned to the profession of journalism. A German, he speaks the English language with great judgment and fluency, and exhibits great power both as a writer and a speaker. It certainly looks odd to see an Iowa lawyer at the head of the army and an Indiana lawyer at the head of the navy. Still, the retiring Secretary of the Navy had no other qualification for the office than any other good New Jersey lawyer. Indeed, we have the authority of a distinguished fellow-townsman of Judge Thompson for the assertion that, when Mr. Robeson assumed the naval portfolio, he did not know a seventy-four gun ship from a hog-trough. Add to the foregoing list the President, himself a lawyer, and we must conclude that, although we may not see the different executive bureaux administered, with technical skill, yet we are pretty certain to have a government of law.

TO RENDER itself immortal, the present Missouri Legislature need only pass a bill now before it, entitled "An Act relating to the duties of the judges of the Supreme Court and St. Louis Court of Appeals," and forthwith adjourn without day. The bill in question, which is, in our opinion, the most wonderful piece of legislation ever proposed in this or any other state, provides that in all cases hereafter argued before, or submitted to, the Supreme Court of this State, or the St. Louis Court of Appeals, a majority at least of all the judges of the court to which any case shall be submitted for an opinion shall carefully read all the pleadings and record them, and shall examine all the authorities at their command, which may be stated at the hearing or referred to in the briefs of counsel; and appended to the opinion of the court, which

the court shall render in the case, there shall be a certificate signed by all the judges who have so considered the matters presented and hereinbefore mentioned, setting forth, in the words of the act, that "we and each of us have thoroughly read and examined all the pleadings, records and evidence submitted for our consideration herein, and we have carefully studied all the authorities submitted to us by mention by counsel in the case, and after such consideration we do sign the foregoing as our opinion of the law applicable to the case presented to us." It is difficult to speak seriously of this extraordinary proposal, because it is hard to consider it as anything more than a jest. But, as it may be that its author has introduced it in good faith, and, as there is a possibility of its passing through the Legislature under cover of its innocent title, we would call the attention of the members to its absurdity. It is no doubt true that judges often are mistaken in their opinions, and often decide cases contrary to what would seem to be common sense and justice. But no man is exempt from the liability to err, and our judges are required, generally. to administer the law as they find it; still, whenever they are called upon to depart from the beaten path, they have this advantage, that they understand the system which they seek to improve. That this can not

always be said of the legislator, the bill before us is a sufficient illustration. Without having any object that we can see, it is simply an insult to the gentlemen who occupy seats upon the bench of our appellate courts. Has it come to the knowledge of the party who has taken the trouble to draw this piteous document, that the judges of our supreme court are in the habit of deciding cases submitted to them without examining the records or considering authorities? If so, it is his duty to bring the matter before the public in another and more direct manner, in which case we are pretty sure the bench will be able to take care of itself. But, if it should come to this, the proposal may properly be amended by its author, so as to prescribe the course of reasoning to be adopted in arriving at their conclusions; the value to be given to each authority, and to the testimony of each witness, if on a question of fact; the length of time each authority shall be "carefully studied,” and what shall be considered as being a careful study. We recommend these few additions to the member who has introduced this extraordinary compound of legislation and insolence, as, although we have not taken the trouble to ascertain, we do not suppose him to be a member of the legal profession.

TIME FOR GIVING NOTICE OF PROTEST.

In order to hold an indorser, drawer or maker of a bill of exchange, or promissory note, upon his contract, in case of non-acceptance or non-payment, it is essential that the holder should have performed all that the nature of the contract imposes upon him as conditions precedent to his right of recovery from antecedent parties. The contract

entered into by the indorser is, that if the bill or note be duly presented for acceptance or payment, or in case of a bill, for both acceptance and payment, and acceptance or payment is refused, then, if duly notified of such refusal, he (the indorser) will pay the same. In determining the question of the indorser's liability upon dishonored paper, nothing is of more importance than the matter of notice. And in order to ascertain whether the party to be charged has been duly notified of the dishonor, the question often hinges upon the time of giving the notice. Except when the time is fixed by statute, there is no general rule, applicable alike to all cases. The nearest approach to an absolute rule, fixed by the law-merchant, as laid down in the books, is that the notice must be given in a reasonable time. Chitty on Bills, 366. What is a reasonable time, must of necessity be governed by the circumstances peculiar to each case. But the courts, by a long line of decisions, embracing cases involving almost every conceivable circumstance bearing upon the question, have classified them so that a case rarely ever arises for which the precedents do not furnish a guide.

One of the circumstances affecting the time within which notice of dishonor should be given is the means of communication between the holder of the dishonored paper and the party to be notified. In case of a foreign bill, where the drawer and indorser live beyond seas, and the usual intercourse is by regular packets or steamers, arriving and departing at stated intervals, a notice sent by the packet or steamer taking its departure next after the day of dishonor would be in time, provided it were not deposited for transmission through the mails carried by such packet or steamer, at an hour too late for the next post after the date of demand and non-payment. Muilman v. D'Eguino, 2 H. Black. 565; Story on Bills, § 286. But when there are no packets or steamers plying between the respective places of residence of the holder, and the drawer or indorser, or where such means of intercourse are furnished only at distant intervals, and there is another ship about to sail for the same or a neighboring port, the notice might be sent by such ship, if, upon reasonable calculation, her arrival would probably be earlier than one of the regular line. Bayley on Bills, ch. 7, § 2, p. 279. Where, however, the communication is irregular, or by various routes, that means should be adopted to send the notice, which may reasonably be presumed to be the most certain and expeditious. But what means soever are employed for giving the notice, the law exacts of the party giving it a reasonable amount of care and diligence, and where he has been negligent in not giving the notice in time, will discharge the antecedent parties. United States v. Bankers, 12 Wheat. 559; s. C., 4 Wash. 464; Talbot v. Clark, 8 Pick. 51. In no case is the holder required to give notice on the day of presentment and dishonor. In some of the earlier cases it was held that, where it was practicable, notice should be given upon the same day; but the rule may now be regarded as well

settled, both in this country and in Europe, that in no case will the court inquire into the practicability of giving the notice, sooner than on the day following that upon which the paper was dishonored. The reason of this is, that to hold otherwise would be to subject a business man to what might prove an unfriendly inquisition regarding his business affairs, in order to be able to judge of the manner in which he had disposed of his time, or else require him to give his entire attention to this notice, possibly to the manifest neglect of his other business. In order, therefore, to avoid the necessity of too nice an inquiry into the private affairs of the holder, he has been allowed, in any event, one day for the purpose of preparing and sending the notice. Chick v. Pilisbury, 24 Me. 458; Manchester Bank v. Fellows, 8 Foster (28 N. H.), 302; Langdale v. Trimmer, 15 East. 293; Grand Bank v. Blanchard, 23 Pick. 305; Whittlesey v. Dean, 2 Aikens, 263; Carmena v. Bank of La., 1 La. Ann. 369; Blackman v. Leonard, 15 La. Ann. 59; Whitwell v. Johnson, 17 Mass. 449; Chitty on Bills, 513-15; Neal v. Taylor, 9 Bush, 387.

It being settled that the holder should have one day within which to give notice of the dishonor of the bill or note, the rule was declared by Mr. Chitty (Chitty on Bills, 517-18), that where "the notice is to be sent by the general post, then the holder, or party to give the notice, must take care to forward notice by the post of the next day after the dishonor, or after he received notice of such dishonor, whether that post sets off from the place where he is, early or late." Judge Story, in his work on Bills of Exchange, in a note to section 231, questions the doctrine declared above, and claims that the rule is less strict than it is laid down by Mr. Chitty. He is of the opinion that "it would be more correct to say that the holder is entitled to one whole day to prepare his notice, and that therefore it will be sufficient if he sends it by the next post, that goes after twenty-four hours from the time of the dishonor. Thus, sup

pose the dishonor is at four o'clock, P. M., on Monday, and the post leaves on Tuesday at nine or ten o'clock, it seems to me that the holder need not send by that post, but may safely wait, and put the notice into the post-office early enough to go by the post on Wednesday morning at the same hour." The learned author advances the above views, quoted from his note, not without some hesitancy, though the same doctrine is asserted in the text, (§ 291, a); but in Story on Promissory Notes (§ 324) the same author lays down the rule in language clearly inconsistent with that in the note above referred to. The only authority cited by Judge Story in support of his twenty-four hour rule, which seems to be in harmony with his own views, is that of Chancellor Kent, (3 Kent's Commentaries, 105-6), and that, not in express terms. Mr. Chitty's rule seems to be too strict in requiring the notice to be sent by the post of the day following the day of dishonor, "whether the post sets off from the place where he is, early or late." It might