was to foreclose the mortgages in its own name, on being indemnified for costs and expenses, and to hold the proceeds for the protection of the policy-holders. In September, 1878, the insurance company made an assignment for the benefit of creditors, and at the request of the assignee the mortgages were delivered to plaintiffs for foreclosure, as attorneys of the trust company, the plaintiffs giving a receipt stating that the proceeds, after deducting the interest which had accrued upon the securities, and the costs and expenses, were to be deposited with the trust company as security for the holders of the policies. There was $13,800 of interest due upon one of the mortgages at the time of the foreclosure, and $1,200 upon the other, while the foreclosure sale produced but $5,000 upon one mortgage and $1,000 upon the other. In this action to determine whether this $6,000, less expenses, should be paid to the assignee or to the trust company, and whether the plaintiffs have a lien for services to the assignee, held, that as against the trust company, whose attorneys they are, the plaintiffs are not entitled to hold possession of the fund, after receiving their taxable costs and allowances; and also that as the agreement under which the trust company received the mortgages created a trust, by which the policy-holders of the insurance company were to be secured, the securities and their proceeds become irrevocably impressed with that trust, and the trust company is therefore entitled to such proceeds as against the assignee of the insurance company, and this notwithstanding the provision in regard to the receipt and collection of interest by the insurance company. Fullerton v. National Burglar and Theft Ins. Co. Opinion by Dauforth, J.

[Decided Oct. 6, 1885.]

CONTRACT-BREACH OR RESCISSION-INSOLVENCY.The mere insolvency of one of the parties to a contract of sale is not equivalent either to a rescission or a breach. It simply relieves the vendor from his agreement to give credit, and payment may be substituted. New England Iron Co. v. Gilbert Elev. R., 91 N. Y. 153; Add. Cont. (Am. ed.), § 475; Bing. Sales (3d Am. ed.), § 759; Freeth v. Burr, L. R., 9 C. P. 208; Bloomer v. Bernstein, id. 588; S. C., 10 Moak Eng. 319. Opinion by Rapallo, J. [Decided Oct. 6, 1885.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

PLEADING-INCONSISTENT DEFENSES IN EQUITY-EFFECT OF.-It is a rule in equity that where a defendant sets up by his answer under oath two inconsistent defenses, the result will be to deprive him of the benefit of either; and this rule applies to an answer under oath read as an affidavit of merits on a motion to set aside a decree rendered by default, and the decree will not be set aside where the affidavit sets up two flatly inconsistent defenses, as, for example, where one defense relied on is a tax title, in the defendant, to the lands, and the other is that the lands are and always have been the property of the United States. From the cases of Jesus College v. Gibbs, 1 Younge & C. 145, 160, and Leech v. Bailey, 6 Price, 504, it is to be collected that where a defendant sets up by his answer two inconsistent defenses, the result will be to deprive him of the benefit of either, and to entitle the plaintiff to a decree. 1 Dan. Ch. Pl. & Pr. 713. There may be some doubt whether this rule should now obtain in all its strictness, where the answer is not under oath. In the practice in the courts of this and many other States, *Appearing in 24 Federal Reporter.

under the Code, it does not prevail; but the practice in equity cases in this court is regulated by the equity rules and the English chancery practice, and not by the Code. The answer and amended answer tendered in the case at bar are under oath. They are tendered as showing merits, and as a basis for setting aside a final decree, duly tendered upon an ex parte hearing on a bill previously taken as confessed for want of an answer. The showing made in such case should be free from all deceit and double-dealing, and when the answer, which for the purpose of this motion is to be treated as an affidavit of merits, sets up two defenses, one of which must undoubtedly be false, the defendant discredits himself by his own pleading, and the answer should avail him nothing as an affidavit of merits or otherwise. The demurrer to the bill was overruled after full argument and consideration. Ozark Land Co. v. Leonard, 20 Fed. Rep. 881; Lamb v. Farrell, 21 id. 5. Cir. Ct. E. D. Ark., April 20, 1885. Ozark Land Co. v. Leonard. Opinion by Caldwell, J. PATENTS-INTERFERENCE-EFFECT OF DECISION OF PATENT OFFICE-REV. STAT., § 4918.- In a suit between interfering patentees under Rev. Stat., § 4918, the decision of the Patent Office in favor of one of the parties is not res adjudicata upon the question of priority of invention between them, and a bar to further litigation in the Circuit Court. As is said by Lowell, J., in Union Paper-bag Machine Co. v. Crane, 1 Ban. & A. 494: "It is not ambiguous, but gives a court of equity power to decide between interfering patents without any exception or limitation." It saves the rights of any person interested in either of the interfering patents, as well as those of any person interested in the working of the

invention claimed under either of them to obtain relief against the interfering patent by a suit in equity against the owner. As no patent can come into existence under section 4904, if in the opinion of the commissioner it interferes with one already granted, the section in question plainly contemplates, either that his decision upon an interference may be reviewed, or that it is only to be reviewed by a court of equity when he has overlooked the existence of the prior patent. That it is not intended to be confined to cases in which he has not passed upon the question of priority of invention is apparent from the provisions of section 4915, by which the rights of the defeated party in an interference proceeding are carefully saved by allowing him to appeal to the Supreme Court of the District of Columbia, or to resort to a remedy by a bill in equity. The provisions of this section denote incontestably that the decision of the commissioner is not to be conclusive if the defeated party choose to contest his decision by a direct attack upon the interfering patent in a court of equity. It may very well be held that where the defeated party does not adopt the statutory mode of contesting the decision of the Patent Office upon the question of priority of invention, the decision should be held conclusive. The decisions in Peck v. Lindsay, 2 Fed. Rep. 688; Holliday v. Pickhardt, 12 id. 147; Shuter v. Davis, 16 id. 564, are to this effect. They do not throw any light upon the present question, because this is purely one of statutory construction. The cases of Wire Book-sewing Machine Co. v. Stevenson, 11 Fed. Rep. 155, and Peck v. Collins, 70 N. Y. 376, are authorities in support of the conclusious thus reached. Cir. Ct. S. D. N. Y., July 21, 1885. Hubel v. Tucker. Opinion by Wallace, J.

INDIANA SUPREME COURT ABSTRACT.

COVENANT QUIET ENJOYMENT — TRESPASS-EVICTION. Generally speaking, a covenant for quiet enjoy

ment, or a bond for the performance of such a covenant, extends to secure the enjoyment against lawful interruptions only, though the word "lawful" be not contained in the covenant, the law having provided an action of trespass as the means of redressing an unlawful entry or disturbance. An early case to the contrary has long since been virtually if not expressly overruled. 2 Platt Leases, 312. This however is the rule only where a stranger enters; where the lessor enters the rule is somewhat different. The author from whom we have quoted says: "But a disturbance of the lessee by the lessor himself is not regarded with the same lenity as an eviction by a strauger; it being clear that the lessor exposes himself to an action on his covenant, although he enter wrongfully, notwithstanding the covenant provides against lawful evictions only; for in such case the court will not consider the word 'lawful;' nor drive the plaintiff to his action of trespass, when by the general implied covenant in law the lessor has engaged not to avoid his own deed, either by rightful or tortious entry. Indeed it would hardly be consistent with reason to allow the lessor to defeat the tenancy by pleading his own wrong." 2 Platt Leases, 313. Although the law is more strict against the lessor than a stranger, still a mere entry, though wrongful and unlawful, will not constitute a breach of covenant. It is necessary that something more than an entry and injury be shown, for these are the elements of a trespass. It must also be shown that the entry was an assertion of right or title; in other words, was in the nature of a total or partial eviction. 2 Platt Leases, 314; Tayl. Landl. & Ten. (7th ed.), § 305. A late writer says: "It must be remembered however that the act done must be in the assertion of title, and not a mere tortious act for which an action of trespass might be maintained." Wood Land. & Ten. 574. Another author says: "Nor will any acts of molestation, even if committed by the landlord himself, or by a servant at his command, occasion a breach of the covenant unless they are more than a mere trespass." Tayl. Land. & Ten. (7th ed.), § 309. In Fuller v. Ruby, 10 Gray, 285, it was said: "An interruption of a tenant by the landlord is not necessarily an eviction of him. And nothing less than an eviction will suspend rent in whole or in part." On this ruling the jury may have found their verdict on a mere trespass or temporary disturbance of the defendant by the plaintiff, for which the remedy was by action, and not by withholding the pay for the use and occupation which was enjoyed. 1 Saund. 204, note 2; Com. Land. & Ten. 197; 5 Dane, 310; Bennett v. Bittle, 4 Rawle, 339; Ogilvie v. Hull, 5 Hill, 52. What will constitute a breach of the covenant for quiet enjoyment was defined in Upton v. Townsend, 17 C. B. 64: "I think it may now be taken to mean this: not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises." In Mayor, etc., v. Mabie, 13 N. Y. 151, Denio, C. J., speaking for the court, said: "It is not however every mere trespass of the lessor upon the demised premises which will amount to a breach of this covenant. Although the covenantor cannot avail himself of the subterfuge that his entry was unlawful, and be therefore a trespasser, to avoid the consequences of his own wrong, still to support the action of covenant, the entry must be made under an assumption of title." The adjudged cases with much steadiness support these views. Bennett v. Bittle, 4 Rawle, 339; Ogilvie v. Hull, 5 Hill, 52; Lounsbery v. Snyder, 31 N. Y. 514; Edgerton v. Page, 20 id. 281; Randall v. Alburtis, 1 Hilt 285; Campbell v. Shields, 11 How. Pr. 565; Drake v. Cockroft, 4 E. D. Smith, 34; Hayner v. Smith, 63 Ill. 430. Our own case of Slaybach v. Jones, supra,

asserts substantially the same doctrine, although not in express terms. Avery v. Dougherty. Opinion by Elliott, J.

[Decided June 27, 1885.]

RHODE ISLAND SUPREME COURT

ABSTRACT.*

ESTOPPEL-SUIT AGAINST TOWN-FORMER JUDGMENT IN FAVOR OF TOWN.-A. claiming to be injured by collision with certain teams left in a highway by B., brought an action against B. to recover damages for his injuries. In this action B. obtained judgment. A. then brought an action against the town in which the highway was situated to recover damages for his injuries, charging the town with negligence in permitting the highway to be unsafe. The town pleaded in bar the judgment recovered by B. against A., alleging that B. caused the defect complained of. To this plea A. demurred. Held, that the plea was good, and that the demurrer should be overruled. Held further, that A., by the judgment which B. recovered against him, was estopped from suing the town. Undoubtedly the rule as generally laid down is that judgments avail as estoppels only for or against parties and privies, but nevertheless the courts allow themselves a good deal of latitude in applying the rule, observing the spirit of it rather than the letter. Thus it has been held that a judgment in favor of a deputy sheriff, in an action against him for official misfeasance or default, is available by way of estoppel in an action against the sheriff for the same misfeasance or default. King v. Chase, 15 N. H. 9. So it has been held that a judgment in favor of a master in an action against him for the act of his servant, rendered in a trial of the case on its merits, is a bar to a suit against the servant for the same act. Emery v. Fowler, 39 Me. 326. So it has been held that a judgment on the ground of payment against one of two joint and several makers of a promissory note is a bar to recovery against the other, whether as between the makers the other signed as principal or surety. Spencer v. Dearth, 43 Vt. 98. In Bates v. Stanton, 1 Duer, 79, 88, the plaintiff, claiming to be the owner of certain goods, delivered them to the defendant by way of bailment. The defendant afterward surrendered them to the true owner, taking from him an indemnity bond. Thereupon the plaintiff sued him in trover for their conversion, and it was held that a judgment recovered by the true owner in an action against the plaintiff involving the right to the goods, was conclusive against the plaintiff in his action against the defendant, inasmuch as the parties, though nominally different, were virtually the same on account of the interest which the true owner had in the defense of the later action by reason of the indemnity bond which he had given to the defendant of record. In Atkinson v. White, 60 Me. 396, the owner of a lot of logs mortgaged them to A. and then sold them to B. A. afterward sold a portion of them to C., warranting their title. B. sued C. in trover for a conversion of the logs bought by him, and recovered judg. ment; C. setting up his title under A. In a later suit by C. against A., involving the same title, it was held that the judgment recovered by B. was a bar to recov See also Durham v. Giles, 52 Me. 206; and Freer v. Stotenbur, 2 Abb. Ct. App. Dec. 189. Hill v. Bain. Opinion by Durfee, C. J.

ery.

WILL-PUB. STAT., CH. 172, § 1-DEVISEES-TENANTS IN COMMON.-"I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, wherever and however situate, of which I am *To appear in 15 Rhode Island Reports.

now possessed, or may die seised or possessed, unto my sous S. T. B. H. J. and C., to have and to hold the same, with all the privileges and appurteuances to the same belonging, to them, the said S. T. B. H. J. and C., their heirs and assigns forever." We think there can be no doubt that under our statute, Pub. Stat. R. 1, ch. 172, § 1, the devise to the sons, so far as it applies to real estate, was a devise to them as tenants in common, there being no words manifestly showing an intent to have them take as joint tenants. The devise therefore, if it is to be construed as a devise to the sons individually, was in effect a devise of one undivided sixth part of the residuary real estate to each sou, and consequently when one son died without issue before the testator, the part devised to him was as if it had never been devised to him, it lapsed, and there being no words to carry it elsewhere under the will, it necessarily descended as intestate estate to the heirs at law. 1 Jarm. Wills (5th Am. ed.) 622; 3 id. 17; Page v. Page, 2 P. Wms. 489; Sykes v. Sykes, L. R., 4 Eq. 200; In re Wood's Will, 29 Beav. 236; Owen v. Owen, 1 Atk. 494; Norman v. Frazer, 3 Hare, 84; Lombard v. Boyden, 5 Allen, 249. The cases cited show that since the statute authorizing the devise of after acquired real estate, the distinction between lapsed devises and lapsed legacies no longer holds, and that now a lapsed devise, like a lapsed legacy, will fall into the residue, are not in point, for the devise here was residuary in its inception, and therefore could not fall into the residue. This would be so if the estate were personal; for though the general rule is that a general residuary bequest carries lapsed or void legacies, it does not include any part of the residue itself which fails. Bagwell v. Dry, 1 P. Wms. 700; Page v. Page, 2 id. 489; Garthwaite's Executor v. Lewis, 25 N. J. Eq. 351; Hand v. Marcy, 28 id. 59; Floyd v. Barker, 1 Paige 480; Hamlet v. Johnson, 26 Ala. 557; Sohier, Adm'r, v. Inches, 12 Gray, 385; Waring v. Waring, 17 Barb. 552; Reed's Estate, 82 Penn. St. 428; Frazier v. Frazier's Executors, 2 Leigh, 642. The surviving sons however contend that the devise to the sons was a devise to the sons, not individually, but as a class, and that they are therefore entitled as a class to the entire residuary estate. But the devise was a devise to the sons, severally named, which indicates that they were, not simply as a class, but each individually, the objects of the testator's bounty. Cases are cited for the sons which show that a gift to persons by name may nevertheless be a gift to them as a class. Schaffer v. Kettell, 14 Allen, 528; Stedman v. Priest, 105 Mass. 293; Springer v. Congleton, 30 Ga. 976; Warner's Appeal, 39 Conn. 253; Talcott v. Talcott, id. 186. In these cases however the general rule that a gift to persons named is a gift to them individually is recognized, and reasons are found in the language or structure of the will, or in the circumstances, for deciding that the intent of the testator, which is of course paramount to the rule, would be best subserved by disregarding it. It was in fact apparent in every one of the cases cited that the gift, though to persons named, was a gift to them as constituting a particular branch or as representing a particular member of the family, and that if the gift were suffered to lapse, and go to the heirs and next of kin generally, it would disappoint the purposes of the testator. There are no such reasons in the case at bar for finding that the sons were intended to take as a class. The beneficiaries under the will are a wife, four daughters, one of whom is married, and six sons. The design of the will seems to have been, after making special provisions for the wife and the married daughter, to divide the rest of the property among the sons and unmarried daughters equally or nearly so, during the lives of the daughters at least, and if the daughters have issue, their shares to go to such issue. Without

question there is some favor to the sons, a remnant of the old traditional partiality lingering still, but we see no reason to doubt that, if the will had been made after instead of before the son who died, the shares of the daughters as well as of the sons would have been proportionately increased. We can therefore see no reason why we should not construe the residuary devise according to its more obvious interpretation as a devise to the sons individually. Bain v. Lescher, 11 Sim. 397; Knight v. Gould, 2 Myl. & K. 295; Williams v. Neff, 52 Penn. St. 326; Todd v. Trott, 64 N. C. 280; Starling's Executor v. Price, 16 Ohio St. 29. Church v. Church. Opinion by Durfee, C. J.

NEGLIGENCE-PROXIMATE CAUSE-DEFECTIVE HIGHWAY-ACCIDENT.-A., injured by falling on a highway which had been washed away in gullies and was slippery with frozen sleet, brought an action for damages against the town. At the trial the presiding judge charged the jury: "If the sidewalk where the accident happened was so defective as to render the town liable in case an accident had happened by reason of the defect in the absence of the obstruction caused by the ice, and this accident happened by reason of such defect, and would not have happened but for it, then the town is liable, even though the ice was one of the proximate causes of the accident." Held, no error. "Where two causes combine to produce the injury, both in their nature proximate, the one being the defect in the highway and the other some occurrence for which neither party is resposible, the corporation is liable, provided the injury would not have been sustained but for the defect in the highway." Dill. Mun. Corp. (ed. 1881), § 1007. It seems to us that this doctrine, at least where the concurring cause is a natural cause or a pure accident, for which no person is responsible, is the more reasonable doctrine. Indeed we think it is the duty of the town, in making and mending its highways, to consider the natural effects of rain and snow and ice as affecting the safety and convenience of travel thereon, except so far as the statute exonerates them from duty in that regard. Houfe v. Town of Fulton, 29 Wis. 296; City of Atchison v. King, 9 Kans. 550; Kelsey v. Glover, 15 Vt. 708; Winship v. Enfield, 42 N. H. 197; Bassett v. City of St. Joseph, 53 Mo. 290; Hull v. City of Kansas, 54 id. 598; City of Joliet v. Verley, 35 Ill. 58; City of Lacon v. Page, 48 id. 499; Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238; Ring v. City of Cohoes, 77 N. Y. 83; City of Crawfordsville v. Smith, 79 Ind. 308; Palmer v. Inhabitants of Andover, 2 Cush. 600; Sherwood v. Corporation of Hamilton, 37 Upper Canada, Q. B. 410. Hampson v. Taylor. Opinion by Durfee, C. J.

LIBEL-PRIVILEGED COMMUNICATION.-Certain citizens presented to the town counsel of their town a request that K. might be removed from his office of constable, because: Firstly, said K. is a man utterly devoid of principle, and uses his office more for the purpose of wreaking his personal spite than for the peace and harmony of the community; secondly, said K. is wholly ignorant of the duties of his office; thirdly, said K. has at various times heretofore maliciously and wickedly assaulted and arrested sundry persons who were entirely innocent of the charges charged by him against them." Whereupon K. brought an action for libel against the citizens, and at the trial introduced evidence to show that the statements of the request were false. Held, that the action could not be maintained without affirmative proof, which was not produced, of express malice; that proof of the mere falsity of the statements would not support the action, and the statements were not such as, if proved untrue, to imply actual malice. The question is whether the charges themselves are of such a character that actual malice can be inferred from them simply on proof of

their falsity. It is well settled that falsity alone is not enough. The author or authors of the communication may make it and press it upon the attention of others, honestly believing it to be true, and acting from the purest and highest motives, when in fact it is false, and therefore actual malice is not to be inferred from mere falsity. Somerville v. Hawkins, 10 C. B. 583; Harris v. Thompson, 13 id. 333; Hart v. Gumpach, L. R., 4 P. C. 439; Laughton v. Bishop of Sodor and Man, L. R., 4 P. C. 495; Lewis & Herrick v. Chapman, 16 N. Y. 369; Fowles v. Bowen, 30 id. 20; Ormsby v. Douglass, 37 id. 477; Shurtleff v. Stevens, 51 Vt. 501. See also Brow v. Hathaway, 13 Allen, 239; Wright v. Woodgate, 2 C. M. & R. 573. Kent v. Bongartz. Opinion by Durfee, C. J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.

ESTOPPEL-JUDGMENT BY DEFAULT FOR PRICE-SUBSEQUENT ACTION FOR BREACH OF WARRANTY.—A judgment rendered upon default for the price of goods sold, the amount thereof being fixed by agreement, is not a bar to an action by the purchaser for a breach of warranty of the quality of the goods. The defendants, in a brief statement, pleaded a judgment recovered by them in Massachusetts, in 1884, against the plaintiffs upon default, and an agreement as to the amount of damages, in a suit to recover the price of the engine, in which suit these plaintiffs, before submitting to a default, appeared and filed an answer in which they alleged the same breach of warranty of the engine relied on here, and claimed to recoup the damages suffered by them on that account. The court ruled that the Massachusetts judgment was not a bar to this suit, and the defendants excepted. The evidence tended to show that Young, the member of the plaintiff's firm who bargained for the engine with the defendants in Boston, was not a practical machinist and never ran an engine, and it did not appear that he had any acquaintance with the mechanism or operating of steam engines. The defendants requested the following instructions: If the jury find that the engine was defective, and that the defects were not apparent to a person without some skill in the matter of engines and machinery of that nature, and further that Mr. Young had sufficient skill to see such defects and opportunity to examine the engine, and did examine it, and that the defendants did not practice any concealment or deceit in reference to such defects, the plaintiffs cannot recover. These instructions were refused and the defendants excepted. The court instructed the jury that if Young had an opportunity to examine the engine and did examine it, and the defects complained of in this suit were apparent on simple inspection, and requiring no skill to discover them, the plaintiffs cannot recover because they were not misled by the defendant's representations. If the finding of the jury is against the defendants on this point, then the question is, whether there has been a breach of the defendants' warranty. If the engine was not what the defendants warranted it to be, the plaintiffs can recover, with instructions as to damages to which no exception was taken. The jury returned a verdict for the plaintiffs for $397.91, being the dif ference in the value of the engine as warranted and the value of the engine delivered. The former judgment is not a bar. Bascom v. Manning, 52 N. II. 132. That case does not differ from this, except in the immaterial circumstance that here the damages were fixed by agreement. A default admits all the material allegations of the writ except the amount of damages, which are assessed by the court, unless for special reasons an in

quiry by the jury is ordered. Huntress v. Effingham, 17 N. H. 584; Toppan's Petition, 24 id. 43; Manchester's Petition, 28 id. 296; Willson v. Willson, 25 id. 229; Bowman v. Noyes, 12 id. 307; West v. Whitney, 26 id. 314; Chase v. Lovering, 27 id. 295. The law and practice are substantially the same in Massachusetts. Jarvis v. Blanchard, 6 Mass. 4; Storer v. White, 7 id. 448; Folger v. Fields, 12 Cush. 93; Colb. Prac. 225. Judgment for the plaintiff for nominal damages at least, follows a default as of course. After the plaintiffs in the action against them in Massachusetts were defaulted, no question except the amount of damages remained open. To fix that amount was the only purpose of the agreement and its only effect. The operation of the judgment is the same as if the damages had been assessed by the court or by the jury. If the matter alleged in the answer was competent to be consid ered in the assessment of damages, the plaintiffs were not obliged to present it, and if not presented nor considered, it would not be barred by the judgment. Seddon v. Tutop, 6 T. R. 607. There is no evidence that it was taken into consideration by the parties in settling the amount of damages by their agreement. It rests upon the party setting up a judgment as an estoppel to show that the matter in question was adjudicated by it. It is unnecessary to determine whether the instructions requested by the defendants were abstractly correct or not. They were properly refused because the case did not call for them. There was no evidence that Young had any acquaintance with, or skill in relation to engines and machinery of the kind in question. Parker v. Roberts. Opinion by Carpenter, J.

[Decided June, 1885.]

MARRIAGE-COLLUSIVE AGREEMENT FOR DIVORCEMORTGAGE TO SECURE PAYMENT OF MONEY TO WIFE

ALIMONY--EFFECT OF ADULTERY OF WIFE. A judgment ordered for the defendant upon an agreed statement of facts, which showed that the mortgage in suit was given to secure the payment of a sum of money by a husband to his wife, under a collusive agreement for obtaining a divorce in her favor, is not conclusive against the right of the wife, after such divorce has been decreed, to recover alimony from the husband. Nor is the adultery of the wife, both before and after such divorce, a legal bar to the granting of alimony upon her petition subsequently brought. Cross 7. Cross, 58 N. H. 373, was a writ of entry, and the matter in issue was the title to the demanded premises, which depended upon the validity of the plaintiff's notes and mortgage. Upon an agreed statement of facts that the notes and mortgage were made in pursuance of a collusive agreement for obtaining a divorce, it was held that the notes and mortgage were illegal and void, and the defendant had judgment. This petition is a proceeding for alimony, and the matter in issue is whether the plaintiff is entitled to a share of the property. The cause of action and the matter in controversy are not the same as in the former action, and the former judgment is neither a bar to the plaintiff's right of recovery in this proceeding, nor is it conclusive that the divorce was obtained by collusion. A former judgment is conclusive only as to facts in issue. It is not conclusive as to facts which are merely evidence. Metcalf v. Gilmore, 61 N. H. 174, 187; King v. Chase, 15 id. 9. The referee now finds that the assumed statement of facts in the former trial were erroneous, and that there was in fact no collusion between the parties in obtaining the divorce, and the evidence was properly received. There is no question as to the power to grant alimony in this case. Upon proper application and notice the court may revise and modify any order made and make such new order as may be necessary respecting alimony.

Gen. Laws, ch. 182, § 15; Ela v. Ela, 61 N. H. 116, 121, and cases cited. Adultery committed by the plaintiff before or after the decree of divorce is not, as matter of law, a bar to this petition. The plaintiff may have earned the property, and justice may require a division of it, although both parties are corrupt. Whether the plaintiff is entitled to alimony is a question of fact. Cross v. Cross. Opinion by Clark, J. [Decided July 31, 1885.]

OF INFANT

NEGOTIABLE INSTRUMENT-RELEASE MAKER OTHER SIGNER LIABLE.-A release to an in

fant co-signer of a joint note after he has repudiated the contract and reconveyed his interest in the land for which the note was given within a reasonable time after reaching majority has not the effect to discharge the other signer. June 30, 1883, one Wadleigh conveyed a farm in Sunapee to Carlos S. Bingham and Fred. S. Hart, and for part of the purchase-money took a note signed by Bingham and Hart for $1,039, and a mortgage of the farm to secure its payment. November 13, 1883, Wadleigh sold and assigned the note and mortgage to the defendant, and on the same day the defendant entered to foreclose the mortgage, and has over since been in possession, receiving the income. At the time of executing the above note and mortgage Hart was an infant, and within a reasonable time after arriving at the age of twenty-one he refused to be held liable on the note, or to ratify and affirm the same, and thereupon by deed, June 7, 1884, released to the defendant all his right and interest in the farm; and in pursuance of an agreement then made the defendant erased his name from the note. June 24, 1884, Bingham quit-claimed his interest in the farm to the plaintiff. The bill prays for partition; for

was unable to pay, but offered his notes amounting to $500, payable to the plaintiffs, $200 in fourteen, $150 in thirty, and $150 in forty-five days. Burr had no authority to accept notes, but received and forwarded them to the plaintiffs in Boston, who on September 12 procured them to be discounted. September 14 this suit was commenced. September 17 the defending creditors commenced their suits. After September 17 the plaintiff paid to the bank the amount of the notes, took them up, and at the trial produced and offered them to the defendant. There was no agreement or mutual understanding that the notes were or were not

given and received in payment of the account pro tanto. There was evidence tending to show that it is found that by the law of Massachusetts a promissory note constitutes payment of a pre existing debt for which it is given in the absence of any stipulation on the subject. The plaintiffs did not intend to extend the time for the payment of the account, and did not do so unless such extension results as the legal effect of receiving the notes and disposing of them in the manner stated. Held, that the notes were made and payable in this State, and in determining their validity and effect they must be regarded as New Hampshire contracts. Dow v. Rowell, 12 N. H. 49; Bank v. Colby, id. 520; Dyer v. Hunt, 5 id. 401; Thayer v. Elliott, 16 id. 102; Little v. Riley, 43 id. 109; Chase v. Dow, 47 id. 405. The contract of the maker with the payees and with any indorser of the notes was to be performed in this State, and is governed by the law of New Hampshire. Story Confl. Laws, § 332; Woodruff v. Hill, 116 Mass. 310. In this State a note is not payment of a pre-existing debt, unless specially agreed to be received as payment. Moore v. Fitz, 59 N. H. 572. The defendant, being unable to pay when called upon by the

and for permission to redeem the mortgage if any thing should be found due upon it. Held, that Hart could not avoid his liability upon the note and mortgage without giving up the property conveyed to him. Heath v. West, 28 N. H. 101; Heath v. Stevens, 48 id.

251; Hall v. Butterfield, 59 id. 354; S. C., 47 Am. Rep. 209; Bartlett v. Bailey, id. 408. His quit-claim to the defendant of his interest in the farm was an essential part of his rescission of the contract expressed by the note and mortgage. Whether one-half the mortgage debt was extinguished by the transaction is a question unnecessary to be determined, inasmuch as the defendant consents that the plaintiff may redeem her one-half of the farm by paying one-half of the mortage debt. The recital in Hart's quit-claim that in consideration of it he is released from liability upon the mortgage note had no legal effect. The contract was avoided and Hart's liability upon it ended by his

refusal within a reasonable time after he became of age to be bound by it, and restoring the property. What would be the effect of the technical release of an infant from his unrepudiated contract upon the liability of his joint promisor is a question which does not arise. The erasure of Hart's name from the note by

the defendant after the contract was rescinded was an immaterial alteration. Bridge v. Mathes, 8 N. H. 140; Burnham v. Ayer, 35 id. 351; Cole v. Hills, 44 id. 227, 232. Young v. Currier. Opinion by Carpenter, J. [Decided July 31, 1885.]

CONFLICT OF LAWS-WHETHER NOTE IS PAYMENTPLACE OF CONTRACT GOVERNS.-Whether a time note given in this State by a New Hampshire debtor to a Massachusetts creditor has the effect of payment pro tanto is to be determined by the law of New Hampshire. September 6, 1883, the defendant was indebted to the plaintiffs in the sum of $822.37, upon account for goods sold to him in Boston. On that day Burr, the plaintiffs' traveller, called upon the defendant for money on account; the defendant

to the agent. That the agent had no authority to accept them does not alter the case. It does not appear whether he assumed to accept them, or whether he informed the defendant that he was not authorized to

receive them, and whether he did or not is immaterial. The agent's lack of authority did not change the nature and effect of the contract between the maker and the payees of the notes. Under the law of New Hampshire the notes, executed and payable in New Hampshire, did not operate as a payment of the indebtedness for which they were given, and no additional force or effect was acquired by the acceptance in Massachusetts. In the absence of any agreement of the parties, the acceptance was an acceptance of the notes as New Hampshire notes - contracts to be performed in New Hampshire - and by the law of New Hampshire the notes were not a payment of the plain

tiffs' account. The defendant cannot set up the defense that the notes were payment of the plaintiffs' claim, and subsequent attaching creditors can make no defense which the defendant cannot make. Gilman v. Stevens. Opinion by Clark, J. [Decided July 31, 1885.]

WISCONSIN SUPREME COURT ABSTRACT.

PARTNERSHIP-COMPENSATION TO PARTNER FOR SERVICES.-As a general rule, one partner cannot charge the other partner for services rendered in the business of copartnership unless there is an express agreement to that effect, or where such an agreement may be implied from the course of business between the partners, or from the nature of the services performed being such as are not usual for one partner to render without receiving a compensation therefor. The authorities cited state the law substantially in that language. And the reason given for the rule is that