The damages not having been certainly assessed in the County Court, so that a final judgment can be rendered, the judgment is reversed and cause remanded. NEW YORK COURT OF APPEALS ABSTRACT. ASSIGNMENT FOR CREDITORS — VALIDITY OF — EVIDENCE OF FRAUDULENT INTENT APPEAL REVIEW tion had sufficient knowledge to speak on the subject. See People v. Gonzalez, 35 N. Y. 49; Commonwealth v. Sturtevant, 117 Mass. 122, 132; People v. Eastwood, 14 N. Y. 562. The conclusion is a rational one that in matters of common observation, where persons have a special opportunity to learn, from the nature of their avocations or otherwise, although not strictly experts, their conclusion as to a fact is admissible, the evidence being governed by the circumstances, the experience and the knowledge of the witness as to the subject-matter of the inquiry. (2) The murdered person was the wife of the accused. Held, that evidence that accused did not shed tears on the morning of the murder, and that in reply to a remark that it was a sad affair at his house, he said, "Yes, I had a load of oats stolen," was admissible as showing the feeling of the accused. While the manifestations at such a time do not always sanction an inference of guilt, they are admissible evidence for the jury to pass upon. Lindsay v. People, 63 N. Y. 143. (3) A letter written by one third person to another. intimating that the writer was suspected of the murder, an anonymous letter to the sheriff, confessing the commission of the offense, and declarations by one third person to another of cognizance of suspicious circumstances surrounding others about the time of the murder, the alleged sus OF FACTS ON. (1) Where the General Term has reversed the decision of the Special, upon the question of fraudulent intent, and this reversal is certified to have been upon questions of fact as well as upon questions of law, the inquiry as to whether there was actual fraudulent intent is open to the review of this court. Godfrey v. Moser, 66 N. Y. 250. (2) Fraud must be proved and cannot be presumed. Grover v. Wakeman, 11 Wend. 187. While it cannot be as a rule directly proved, but must be deduced from facts, such facts must be of a character to warrant the inference. It is not enough that they are ambiguous and just as consistent with innocence as guilt. In this case it was claimed that an assigument for creditors was invalid for the fraudulent intent of the assignor. Held, that such intent must be shown to have existed at the time of the execution of the instrument. Subsequent illegal acts, either of omission or commission, could not inval-picious parties not being otherwise shown to have had idate it (Hardmann v. Bowen, 39 N. Y. 200); though subsequent acts might show the original intent. The fact that the assignee selected was the son-in-law of the assignor and lived with him is not sufficient to raise the inference of fraud. Nor would the fact that he was made a preferred creditor. An assignment is not invalidated by the omission in the schedule of some of the debtor's property by inadvertence, nor does such omission prove fraudulent intent, where the assignment purports to convey all of the debtor's property. The omission may be explained, though if explanation cannot be given the inference of fraud must follow. In this case the assignor omitted in his schedule four items of property, viz., a bond and mortgage for $1,000, a balance in the Greenwich Bank of $33.03, a deposit in the Freedmen's Savings Bank of $3,000, and a balance in the People's Bank of $434.02. It was shown that the first two items were omitted by inadvertence; that the bond and mortgage, which was stated to be of small value, was delivered to the assignee, and that he received the money from the Greenwich Bank. The deposit in the Freedmen's Bank was worthless, the bank being insolvent, and the evidence showed that it was probable that the money on deposit in the People's Bank, which was drawn out two days after the assignment, was drawn on a check given by the assignor before the assignment. Held, not to establish a fraudulent intent on the part of the assignor, so as to invalidate the assignment. Judgment reversed. Schultz v. Hoagland. Opinion by Finch, J. [Decided June 14, 1881.] CRIMINAL LAW-EVIDENCE-WITNESS NOT EXPERT MAY TESTIFY TO EXISTENCE OF BLOOD SPOTS-CONDUCT OF ACCUSED PERSON AFTER CRIME-DECLARATIONS OF THIRD PARTIES -TRIAL- MISDIRECTION CORRECTED BY JUDGE NOT GROUND OF ERROR. —(1) In a trial for murder, where the deceased was found with her throat cut, witnesses who were not experts were permitted to testify as a fact, not as an opinion, that certain red spots seen by them near the house in which the murder was committed on the day of the murder were blood. The witnesses were farmers, one of them had trapped pigeons, the other had butchered and hunted game. Each testified that he knew what the spots were. Held, no error. The ordinary mind may from experience and observation be able to determine what such spots are, without knowing the chemical constituents of blood, and the witnesses in ques any thing to do with the matter, held, not admissible EQUITABLE ACTION PLEADING -PLAINTIFF ENTI- LIEN FOR PURCHASE-MONEY. - The complaint showed NEGOTIABLE INSTRUMENT -INDORSER OF ALTERED DRAFT LIABLE ONLY AS INDORSER. - The F. bank of Plainfield, on the 5th of June made its draft on the First National Bank of New York for $25, payable to the order of William Palmer. On the 12th of June a stranger brought this draft to the plaintiff, the S. bank. It had been altered so as to bear date June 6th, to read for $1,200, and payable to the order of William Brown. The stranger applied for the money called for by the draft. The defendant, who came to the S. bank with the stranger, indorsed the draft and the S. bank paid the amount of the same to the stranger, after defendant had left the bank. The draft was sent by the S. bank to its correspondent in New York, which presented it to the drawee, the First National Bank, by which it was paid. Upon the discovery of the alteration, the First National Bank demanded and received from the correspondent the amount it had paid on the draft, and the correspondent demanded and received a like amount from the S. bank. Held, that the S. bank could not hold defendant liable as an indorser for the amount paid by it to the stranger upon the draft. The cases, Hall v. Newcomb, 7 Hill, 416; Spies v. Gilmore, 1 Comst. 321; Hall v. Fuller, 5 B. & C. 750; Merch. Bk. of New York v. Exchange Bk. of N. O., 16 La. Ann. 457; Turnbull v. Bowyer, 40 N. Y. 456; White v. Continental Nat. Bk., 64 id. 316; Graves v. American Exch. Bk., 17 id. 205; Morgan v. Bank of New York. Canal Bank v. Bank of Albany, cited and distinguished. See, also, Jones v. Ryde, 5 Taunt. 486; Bickerdicke v. Bollman, 1 Term R. 405; Carter v. Flower, 16 M. & W. 743; Mechanics' Bk. v. Griswold, 7 Wend. 165; Marine National Bk. v. National City Bk., 59 N. Y. 67. Judgment affirmed. Susquehanna Valley Bank v. Loomis. Opinion by Dauforth, J. All concur; Folger, C. J., and Earl, J., in result. [Decided April 26, 1881.] UNITED STATES SUPREME COURT ABSTRACT. MARITIME LAW COLLISION BETWEEN SCHOONER AND STEAMER -WHEN SCHOONER AT FAULT.- A schooner some three or four hundred yards from a steamer, and sailing on a course which if she kept would have allowed the steamer to have passed her safely, suddenly changed her course so as to bring her in front of the steamer. At the time there was no stern lookout on the schooner and no one on it had observed the steamer. On the steamer there were the proper lookouts, and every measure was taken to avoid a collision, after the change in the schooner's course was observed, but a collision took place. Held, that the schooner and not the steamer was in fault for the collision. The responsibility of avoiding a collision with a sailing vessel is put by the act of Congress and the sailing rules primarily on a steamer. But the sailing vessel is under just the same responsibility to keep her course, if she can, and not embarrass the steamer while passing by any new movement. steamer has the right to rely on this as an imperative rule for a sailing vessel and govern herself accordingly. Otherwise it would at times be impossible for a steamer to get ahead at all in the thoroughfares of navigation. Because a steamer must keep out of the way of a sailing vessel, it by no means follows that a sailing vessel may unnecessarily throw herself across the bow of an approaching steamer. It is as much the duty of a sailing vessel to be diligent in the performance of her duty as it is that of a steamer to be mindful of hers. In the case of The Abbotsford, 98 U. S. 446, it was distinctly found that the tack of the schooner was entirely proper, both for her own safety and in regard to the steamer. She had run out of her course, and the A steamer, which was yet a considerable distance away, ought to have known it. Consequently the steamer was in fault for getting so close as to put herself in the way of the schooner while doing what the necessities of the navigation actually required her to do, and which a prudent and skillful navigator on the steamer ought to have known she must do at the time it was done. Judgment of U. S. Circ. Ct., E. D. Pennsylvania, affirmed. Golding v. Steamship Illinois. Opinion by Waite, C. J. [Decided May 2, 1881.] A county which had issued bonds in aid of a railroad company, and delivered them in payment of stock, after the railroad company had suspended operations and was notoriously insolvent, and a decree of foreclosure had been rendered against it, by arrangements with certain creditors of the company which were consummated under the cover of suits in a State court by such creditors, against the company and the county, to the prejudice of other creditors, attempted to discharge its liability to the common debtor, the company, by paying less than the entire sum due from it. By these arrangements the county got possession of the bonds. Held, that the liability of the county was not discharged. Upon recognized principles of public policy and good faith, the debt which the county owed, by reason of its subscription and the bonds given therefor, constituted, with other property of the insolvent company, a trust fund, to which all its creditors could rightfully look for satisfaction of their claims. The county was liable for the whole of that debt, and by no device or combination, to which particular creditors were parties, could it withdraw its bonds from that fund, and thereby avoid liability to the general creditors of the company. In Sawyer v. Hoag, 17 Wall. 621, this court had occasion to consider the question whether the creditors of an insolvent corporation were at liberty to assail a transaction between it and one of its debtors, whereby the latter's subscription of stock was withdrawn, so far as general creditors were concerned, from the assets of the corporation. In that case the court declared the doctrine to be well established that the capital stock of a corporation, especially its unpaid subscriptions, constituted a trust fund, for the benefit of the general creditors of the corporation, and that the governing officers of a corporation could not, by agreement or other transaction with the stockholder, release the latter from his obligation to pay, to the prejudice of its creditors, except by fair and honest dealing, and for a valuable consideration. In the subsequent case of Sawyer v. Upton, Assignee, 91 U. S. 60, this court said: "The capital stock of an incorporated company is a fund set apart for the payment of its debts. It is a substitute for the personal liability which subsists in private copartnerships. When debts are incurred, a contract arises with the creditors that it shall not be withdrawn or applied, otherwise than upon their demand, until such demands are satisfied. The creditors have a lien upon it in equity. If diverted, they may follow it as far as it can be traced, and subject it to the payment of their claims, except as against holders who have taken it bona fide for a valuable consideration and without notice. It is publicly pledged to those who deal with the corporation for their security. Unpaid stock is as much a part of this pledge, and as much a part of the assets of the company, as the cash which has been paid in upon it. Creditors have the same right to look to it as to any thing else, and the same right to insist upon its payment as upon the payment of any other debt due the company. As regards creditors, there is no distinction between such a demand and any other assets which may form a part of the property and effects of the corporation." Upton v. Trebilcock, 91 U. S. 45; Webster v. Upton, id. 65; Hatch v. Dana, 100 id. 210; Morgan Co. v. Thomas, 76 Ill. 141. Decree of U. S. Circ. Ct., S. D. Illinois, affirmed. County of Morgan v. Allen. Opinion by Howland, J. [Decided May 2, 1881.] TITLE-PATENT FROM UNITED STATES OF LANDS IN TERRITORY ACQUIRED FROM MEXICO. -The rule that a patent from the United States is final and conclusive on everybody, and cannot be disputed in a court of law as to the title it confers, while generally or always true where the patent is for land of which the government had an undisputed title, does not always apply in dealing with the claimants of lands under Mexican grants, which had come into the political control of When, our government by the treaty of Mexico. therefore, guided by the action of the tribunals which the government had established to pass upon the validity of these alleged grants, it issued a patent to the claimant, it was in the nature of a quitclaim — an admission that the rightful ownership had never been in the United States, but at the time of the cession it had passed to the claimant, or to those under whom he claimed. This principle has been more than once clearly announced in this court. The leading cases are Beard v. Federy, 3 Wall. 478; Bissell v. Henshaw, 18 id. 268; Miller v. Dale, 92 U. S. 478. Decree of U. S. Circ. Ct., California, affirmed. Adam v. Norris. Opinion by Miller, J. [Decided April 11, 1881.] UNITED STATES CIRCUIT AND DISTRICT said firm in 1869, held, that where money is deposited with a banking firm which subsequently dissolves, and whose business is continued by a new firm, the liability of the members of the old firm continues, unless facts be shown from which an intention to accept the liability of the new firm in lieu of the liability of the old firm can be fairly inferred. If such facts be shown, the liability of a retired partner will be held to have been extinguished. That where a banking firm is dissolved, and the business is carried on by a new firm which has agreed to assume the liability of the old firm, slight circumstances only are required to justify finding the existence, on the part of a creditor of the old firm, who has notice of the dissolution and of the agreement of the new firm, of an intention to accept the liability of the new firm in place of the liability of the old. Ex parte Williams, Buck, 13; In re Smith, Knight & Co., L. R., 4 Ch. App. 66; In re Family Indors. Soc., L. R., 5 Ch. App. 118; Hart v. Alexander, 2 M. & W. 489; In re Med., etc., L. Assur. Co., 24 L. T. Rep. 455; Kerwin v. Kerwin, 2 Crompt. & M. 627; Brown v. Gordon, 16 Beav. 209; Harris v. Farwell, 15 id. 31; Hall v. Jones, 56 Ala. 493; The cases Heath v. Hall, 4 Taunt. 352; Droagnes v. Noble, Meriv. 562; Daniels v. Cross, 3 Ves., Jr., 277; Harris v. Lindsay, 4 Wash. 100, distinguished. U. S. Circ. Ct., E. D. New York, Feb. 16, 1881. Regester v. Dodge. Opinion by Benedict, D. J. REMOVAL OF CAUSE-CITIZENSHIP, TO AUTHORIZE, MUST EXIST WHEN SUIT COMMENCED.— A case cannot be removed under the act of 1875 on the ground of citizenship, unless it appears from the record that at the time the suit was commenced the parties were citizens of different States. Insurance Co. v. Pechner, 95 U. S. 183. In such case, an amended transcript may be filed, where the record in the State court did in fact disclose the requisite citizenship, under the statute, before the order of removal was made. U. S. Circ. Ct., Iowa, Oct. 20, 1880. Kaeser v. Illinois Central Railroad Co. Opinion by McCrary, C. J BE. CONTEMPT -STATUTORY CONSTRUCTION-AUTHORITY TO IMPOSE FINE IMPLIES AUTHORITY TO IMPRISON IN CASE OF NON-PAYMENT.- Where a statute authorizes or prescribes the infliction of a fine as a punishment for a contempt of court, it is lawful for the court inflicting the fine to direct that the party stand committed until the fine is paid, although there be no specific affirmative grant of power in the statute to make such direction. United States v. Hudson, 7 Cranch, 32; Ex parte Robinson, 19 Wall. 505; Kane v. People, 8 Wend. 203; Son v. People, 12 id. 344; Ex parte Watkins, 7 Pet. 568; Harris v. Commonwealth, 23 Pick. 280; Wilde v. Commonwealth, 2 Metc. 408; Regina v. Dunn, 12 Ad. & Ell. (N. S.) 1026; Drayton v. Sears, 5 Opin. Atty. Gen. 579; In re Mullee, 7 Blatchf.facturing Co. v. Stanage. Opinion by Treat, D. J. 23; United States v. Robbins, 15 Int. Rev. Rec. 155; United States v. Kellerman, 23 id. 202; In re Allen, 13 Blatchf. 23; Green v. Elgie, 8 Jur. 187; S. C., 5 Ad. & Ell. (N. S.) 99; In re Yates, 4 Johns. 317; S. C., 9 id. 395. U. S. Circ. Ct., S. D. New York, Jan. 26, 1881. Fischer v. Hayes. Opinion by Blatchford, C. J. NATURALIZATION -HALF-BREED INDIAN NOT WHITE PERSON. - A person of half white and half Indian blood is not a "white person," within the meaning of this phrase as used in the naturalization laws, and therefore he is not entitled to be admitted to citizenship thereunder. 2 Kent's Com. 72; In re Ah Yup, 5 Sawy. 155; Jeffries v. Ankeny, 11 Ohio, 372; Gray v. State, 4 id. 353; Thacker v. Hawk, 11 id. 377; Lane v. Baker, 12 id. 237. U. S. Ciro. Ct., Oregon, Nov. 2, 1880. In re Camille. Opinion by Deady, J. PARTNERSHIP — LIABILITY OF OUTGOING PARTNER FOR SUBSEQUENT DEBTS OF FIRM. — In a suit in equity to charge the estate of a partner who retired from the banking firm of Jay Cook & Co. in 1871 and died in 1877, with the amount of certain deposits made with *Appearing in 6 Federal Reporter. TRADE-MARK -NAME APPLIED TO PATENT CANNOT - Where a word indicates a patented machine of peculiar mechanism, such word cannot be protected as a trade-mark upon the expiration of the patent. Certain patented sewing machines were known as the "Singer" machines. Held, that the word "Singer" was not a trade-mark, and became common property upon the expiration of the patent. Distinguishing Singer Manuf. Co. v. Wilson, L. R., 3 App. Cas. 376. See Manufacturing Co. v. Trainer, 101 U. S. 51. U. S. Circ. Ct., E. D. Missouri, March, 1881. Singer Manu CALIFORNIA SUPREME COURT ABSTRACT. MANDAMUS -WILL NOT ISSUE IF RESULT FRUITLESS.- - Mandamus will not issue, even if the facts would warrant its issue otherwise, if the result will be fruitless. Says Broom: "It is a maxim of our legal authors, as well as a dictate of common sense, that the law will not itself attempt to do an act which would be vain; lex nil frustra facit, nor to enforce one which would be frivolous-lex neminem cogit ad vana seninutilia." The law will not, in the language of the old reports, enforce any one to do a thing which will be vain and fruitless. Legal Maxims, Lex non cogit ad impossibilia," 6th Am. ed. 248-9. Bell v. Midland R. Co., 10 C. B. 306; Teel v. Sweeting, 2 Johns. 184. Clark v. Crane. Opinion by Thornton, J. [Decided April 19, 1881.] NOTICE -TO ATTORNEY OF PRIOR INCUMBRANCE IMPUTABLE TO CLIENT. -Two mortgages, one to D. and one to N., were deposited in a county clerk's office for record, April 15, the one to D. at four o'clock, and WISCONSIN SUPREME COURT ABSTRACT.* CONTRACT-PROMISE IN SINGULAR NUMBER SIGNED BY SEVERAL FORECLOSURE JUDGMENT FOR DEFI CIENCY.—(1) A promise expressed, in the body thereof, in the singular number, but executed by two or more persons, is joint and several. (2) Where a joint and several guaranty is secured by the mortgage of one only of the guarantors, all of them may be made defendants to an action for a foreclosure of the mortgage and for personal judgment against them all for any deficiency. Fon Du Lac Harrow Co. v. Haskins. Opinion by Taylor, J. [Decided Jan. 11, 1881.] appear that the mortgage was then produced, or that Mrs. D. recalled any previous statement made by her to the justice. Neither of the mortgagees knew, until the action to foreclose was commenced, nearly two years later, that Mrs. D. had hesitated about executing it. It does not appear that either of them ever threatened D. with a criminal prosecution, or that D. represented to his wife that such a prosecution was threatened by any person. Held, that the mortgage was valid. Cases referred to and distinguished, Eadie v. Slimmon, 26 N. Y. 9; Watkins v. Brant, 46 Wis. 419; Bogie v. Bogie, 37 id. 363. Lefebvre v. Dutruit. Opinion by Lyon, J. [Decided Feb. 8, 1881.] NUISANCE-DOCK IN WATERS OF NAVIGABLE LAKE -ADJOINING LAND-OWNER MAY NOT CONVERT MATE RIALS OF. Where a dock, built by A. in the waters of a navigable lake, upon land belonging to the State or to any third party, is in A.'s possession, B. cannot lawfully interfere with it on the mere ground that it is a pourpresture or a public nuisance; and even if it were a private nuisance in respect to him, or if it being a public nuisance, he could recover damages for special injury caused by it to himself, or might lawfully remove it as obstructing the exercise of his rights, this would give him no right to take the materials of the dock and convert them to his own use. Wood on Nuis., §§ 618-676; Walker v.Shepardson, 2 Wis. 384; S. C., 4 id. 486; Barnes v. Racine, 4 id. 454; Carpenter v. Mann, 17 id. 155; Newell v. Smith, 23 id. 261; Greene v. Nunnemacher, 36 id. 50; Remington v. Foster, 42 id. 608; Blodgett v. Syracuse, 36 Barb. 529; Brown v. Perkins, 12 Gray, 89; Ely v. Supervisors, 36 N. Y. 297; Mayor of Colchester v. Brooke, L. R., 6 Q. B. 339; Dennis v. Pelley, L. R., 15 Q. B. 276; Cobb v. Bennet, 75 Penn. St. 326; Cooper v. Marshall, 1 Burr. 260; Rex v. Pappeneau, 1 Strange, 688; Harrower v. Ritson, 37 Barb. 201; Griffith v. McCullom, 46 id. 561; State v. Keenan, 2 Ames (R. I.) 497; Castello v. Laudwehr, 28 Wis. 522; Mohr v. Gault, 10 id. 513; Williams v. Finn, 18 id. 265. Larson v. Furlong. Opinion by Taylor, J. [Decided Jan. 11, 1881.] BY DEFENSE OF MARRIED WOMAN-CONTRACT COERCION BY HUSBAND.-D. being a defaulter, as county treasurer, in the sum of $6,000, his sureties, to indemnify themselves, against their liability, induced him to execute his notes for that amount, and have the same secured by a mortgage of $12,000 worth of real property of his wife, including her homestead, worth $2,000. The wife was reluctant to mortgage the homestead, though willing to mortgage the other property; but, after the husband had continued his importunities through a period of several days, she signed a mortgage of the whole. The husband stated correctly to her his situation, including his liability to a criminal prosecution, and also stated that" before he would go to jail he would shoot himself through the brains; " and urged that there was no way by which he could be relieved from his difficulties except by her executing the instrument. Afterward a justice of the peace went to her house, with an attesting witness, and presented the mortgage to her; and she took and examined it, admitted her signature thereto, and said that she knew all about the mortgage, and it was all right; and the justice thereupon took it and retired with the attesting witness, and he afterward delivered the instrument duly attested and with the usual certificate of acknowledgment written thereon to D., who delivered it to the mortgagees. Soon after the justice and witness left the presence of Mrs. D., they were induced by other persons to return to the house, and she then, in their presence, again acknowledged her signature, but said that she was "forced to sign;" but it does not *Appearing in 51 Wisconsin Reports. BE STATUTE OF FRAUDS-SALE OF REAL PROPERTY at AUCTION -MEMORANDUM OF AUCTIONEER MUST CONTEMPORANEOUS.- Soon after real property of the plaintiff had been bid off by defendant at an auction sale, defendant orally agreed with plaintiff to pay a certain part of the price the next day, and the remainder a few days later. Soon after the sale also plaintiff's agent requested defendant to make a deposit with him for the plaintiff of some portion of the purchasemoney; and upon defendant's excusing herself from so doing, and promising to make it all right with plaintiff, he drew up a memorandum of the sale, and signed it for plaintiff; but this was never delivered to or accepted or assented to by defendant. No other memorandum of the sale was made by the auctioneer or any other person. Held, that the sale was invalid under the statute. Where a memorandum containing all the essentials of the contract for the sale of land is made and signed at the time of the sale by the auctioneer who sold it for the owner, it is well settled in law that this is sufficient to take the case out of the statute. The auctioneer is deemed to be the agent for both parties at a public sale for the purpose of signing the contract. Benj. on Sales, § 268; Tallman v. Franklin, 14 N. Y. 584. But "it has been decided that the memorandum of the auctioneer, to bind the purchaser, must be contemporaneous with the sale. It cannot be made afterward." Story, J., in Smith v. Arnold, 5 Mason, 414-419. See, also, Gillfv. Bickwell, 2 Cush. 355; Horton v. McCarty, 53 Me. 394. Bamber v. Savage. Opinion by Cole, J. [Decided April 15, 1881.] WILL CONSTRUCTION OF PERSONAL PROPERTY, WHEN NOT INCLUDING SECURITIES. At the time of the making of a will, and of the testator's death, his estate consisted solely of United States bonds, a certificate of deposit, a small amount of currency, and a small amount of wearing apparel, etc. The will gives the use of all the testator's property, "real or personal, of what kind and nature and wheresoever," to the testator's father, during the life of a certain other person; and after the death of such person bequeaths $100 to a sister of the testator, "$100 in money and all my other personal property" to a second sister, and $100 to an aunt. It then adds: "The remainder of all my property I give to my father; " and provides that if the father shall be dead at the time of the testator's decease, all the property shall go in equal shares to the two sisters and aunt above mentioned, or, if the aunt should also be dead, then in equal shares to the two sisters, their heirs or personal representatives. Held, that the words "all my other personal property," in the first legacy, to the second sister, must be construed as intended to include only the testator's personal effects other than the money and securities. Wolfe v. Schaeffner. Opinion by Taylor, J. [Decided Jan. 11, 1881.] FINANCIAL LAW. CONFLICT OF LAW-LEX LOCI CONTRACTUS-USURY. - A promissory note made and payable in New York, but delivered and discounted in Massachusetts, is subject to the law of the latter State in relation to usury. Andrews v. Pond, 13 Pet. 65; Tilden v. Blair, 21 Wall. 241; Upham v. Brimhall, 11 Metc. 526; U. S. Circ. Ct. Vermont, Jan. 18, 1881. Hiatt v. Griswold. Opinion by Wheeler, D. J. (5 Fed. Rep. 573.) NEGOTIABLE INSTRUMENT CHECKS - DUE DILIGENCE IN PRESENTATION. The holder of a check upon a bank located in the town of his residence may present it for payment on the day after the same is drawn, and his omission to present it sooner is no defense to an action by the holder against him, the bank upon which it was drawn having failed, unless the holder had information of the bank's precarious condition. See 2 Dan. Neg. Inst., $$ 1590, 1591; North Carolina Sup. Ct., Jan., 1881. First National Bank of Charlotte v. Alexander. Opinion by Smith, C. J. (84 N. C. 32.) —— PROMISSORY NOTE PROVIDING FOR ATTORNEY'S FEES NOT. — A paper to be negotiable must be certain as to the time of payment and the amount to be paid. An instrument (in other respects) in the form of a note, which contains a promise to pay a certain sum, with current rate of exchange in New York, together with counsel fees and expenses in collecting it, if placed in the hands of an attorney for collection; and which further provides that the payees shall have power to declare said note due at any time they may deem it insecure, even before maturity, is non-negotiable for uncertainty; (1) as to the amount to be paid, by reason of the stipulation for attorney's fees and rate of exchange, and (2) as to the time of payment, by reason of the provision which makes it payable before maturity at the future option of the payee. Goodloe v. Taylor, 3 Hawks, 458; Harris v. Burwell, 65 N. C. 584; Parsons on Bills and Notes, 30, 37; Wood v. North, 84 Penn. St. 407; Brooks v. Heasgreaves, 21 Mich. 254; North Carolina Sup. Ct., January, 1881. First National Bank of New Windsor v. Bynum. Opinion by Ashe, J. (84 N. C. 24.) DRAFT-PROMISE TO ACCEPT NOT ACCEPTANCE -RIGHTS OF PURCHASER BUYING ON FAITH OF PROM ISE BY TELEGRAPH TO ACCEPT.-E. L. living in Westminster, Maryland, sent to B. & Co., of Baltimore, a telegram dated April 27, 1878, in the following words: 'You may draw on me for seven hundred dollars." The same was received about two o'clock P. M. the same day, being Saturday. On the Monday following, April 29, B. & Co. drew their draft in favor of themselves on E. L. for $700, payable at sight. On the day of its date the draft indorsed by B. & Co. was received by the F. Bank of Baltimore, and the amount thereof placed to the credit of the drawers upon the faith of the telegram and the authority thereby given, the same being shown to said] bank. The draft was sent to a bank in Westminster for collection, and on the 7th day of May, 1878, was presented to E. L., who refused to pay the same, and it was protested for non-payment. In an action by the F. Bank against E. L. upon said draft, it was held, that the telegram of April 27 could not be deemed and treated as an acceptance of the draft; that the suit could not be maintained as an action upon an accepted draft, nor could the plaintiff recover upon the general money counts; that the telegram must be construed as an authority to draw the draft payable at sight; that such an authority implies a promise to accept the draft upon presentation, and to pay it at maturity; that such authority and promise inured to the benefit of any bona fide holder of the draft who took it on the faith of the promise; that plaintiff being the bona fide holder of the draft was not affected by the state of accounts between B. & Co. and the defendant. It was decided in Coolidge v. Payson, 2 Wheat. 66 (affirming S. C., 2 Gall. 233), that a letter written within a reasonable time before or after a bill of exchange is drawn, describing it in terms not to be mistaken, and promising to accept, is, if shown to one who takes the bill on the credit of the letter, a virtual acceptance binding the person who makes the promise." That decision was based upon the cases of Pillans v. Von Mierop, 3 Burr. 1663; Pierson v. Dunlop, Cowp. 571, and Mason v. Hunt, 1 Doug. 296. It would seem that this is not the law in England at this time, as appears from the opinions of eminent counsel cited in 2 Story's C. C. 219, 220, and from the case of Bank of Ireland v. Archer, 11 M. & W. 384 m. But the rule in Coolidge v. Payson was afterward reasserted in Schimmelpenich v. Bayard, 1 Pet. 264, and in Boyce v. Edwards, 4 id. 111. It was recognized and approved by this court in Lewis v. Kramer, 3 Md. 289, and seems to be well established in this country. See, also, Carnagie v. Morrison, 2 Metc. 406; Wildes v. Savage, 1 Story, 22. As to the liability of defendant to plaintiff who paid money upon the strength of his authority and promise see Russell v. Wiggin, 2 Story, 213; Swift v. Tyson, 16 Pet. 1; Maitland v. Citizens' Nat. Bank, 40 Md. 440; Maryland Ct. of Appeals. Franklin Bank of Baltimore v. Lynch. Opinion by Bartol, C. J. (Appearing in 52 Maryland.) THIS OBITUARY. LORD JUSTICE JAMES. THIS distinguished English judge died on the 7th inst., aged 74. The Solicitors' Journal says of him: "In Lord Justice James the nation has lost a judge who possessed in no ordinary degree that integrity, which, as Lord Bacon says, is above all things the 'portion and proper virtue' of judges. He had a passionate loathing for injustice, oppression and trickery; restrained only by the strong common sense which taught him that settled rules of law must not be displaced to avoid individual hardship. In knowledge of real property law he was probably unrivalled on the bench, and in force and clearness of diction he had few |