against him, this is the highest satisfaction known to the law: and is equivalent to an actual payment by him, in money, of the judgment, for the purpose of charging his principal with the liability for full reimbursement: ld.

Agreement. The plaintiff agreed to deliver to defendants a force-pump, for $60, promising that if the defendants could not make it operate, he would take it away again; the defendants agreeing that if the plaintiff would send them such a pump, on trial, they would try it, after which, if they liked it, they would buy it. Held, that this was not a sale of the pump, but a conditional agreement to purchase it at a future time: McDonald vs. Pierson.

Held, also, that the defendants were bound to try the pump within a reasonable time; and that they having kept the same in their possession for nearly two years, without making any trial of its sufficiency, or showing any valid excuse for the neglect, the plaintiff was at liberty to treat the condition as waived, and was entitled to recover the stipulated price of the pump: Id.

Held, further, that a trial of the identical pump was what the agreement required, and no other test was admissible. Hence the opinions of mechanics and experts, who had pronounced the pump insufficient to accomplish the purpose for which it was designed, furnished no excuse to the defendants for omitting to make a trial thereof: Id.

Judgment-Evidence.-Where, in an action upon a judgment, the defendant, by his answer, puts in issue the existence of a regular, valid, and legal judgment, any evidence tending to show the judgment illegal or void is competent. Hence, a certified copy of the judgment record, showing that since the joining of the issue the judgment has been vacated, is admissible: Kinsey vs. Ford.

SUPREME COURT OF RHODE ISLAND.1

Guaranty Construction.-The cardinal rule in the construction of all instruments, guaranties included, is, "to read the writing," and, taking its language in connection with the relative position and general purpose of the parties, to gather from it, if you can, their intent in the questionable particular. If, thus considered, its language is equally susceptible of either of two reasonable interpretations, that is to be adopted which makes

1 From Hon. Samuel Ames, Reporter; to appear in the 4th volume of his Reports.

most strongly against the maker of the instrument, or party using the ambiguous words; and this rule, in application to guaranties, is quite compatible with another, that no one can claim under a guaranty who does not bring himself fairly within its terms: Deblois vs. Earle.

Where the plaintiff, in an indenture of lease, by the words-"I agree to and with the said J. E. H. to lease to him"-leased to J. E. H. certain premises, and by the same phrase agreed in the same instrument, at the option of said J. E. H., to lease to him the premises for another year upon the same terms and conditions, at a certain rent, payable at a certain time named in the lease, and the defendant, by a covenant next following in the instrument the stipulation for another year, agreed, "that in case the said J. E. H. shall neglect or refuse to pay the aforesaid rent in manner aforesaid, I will pay the same within ten days thereafter," Held, that the defendant's guaranty applied to the second year's rent, as well as to the first: Id.

Mortgage in trust-Compensation of Mortgagee-Just Allowances-Misrepresentation in Conditions of Sales-Demurrer.-A mortgagee in trust, with a power of sale, may hold the mortgaged estate against the purchaser of the equity as charged with the expenses of a sale by such mortgagee attempted and discontinued in accordance with his trust and of obtaining necessary legal advice in the execution of the trust, under the head of just allowances; but, unless expressly stipulated in the mortgage, cannot hold it charged with any commissions or fees for his own services: Allen vs. Robbins.

Where the assignees of a mortgaged estate sold the equity, subject to the mortgage, at auction, and in the conditions of sale described the mortgage as amounting to a sum certain, for principal and interest, but in the same conditions allowed the purchaser ten days after the sale within which to examine the title, promising to cure any objection to it, or to annul the sale, and the purchaser long subsequent to the sale took from the assignees a quit-claim deed, without warranty, of their title to the estate, subject to the mortgage: Held, upon demurrer to a bill by the purchaser against the assignees, to compel them to pay in his discharge certain expenses of the mortgagee which formed just allowances to him under the mortgage, that, as the bill charged no fraud in the assignees in their said misrepresentation, the above facts stated in it would not maintain a suit, either at law or in equity: Id.

Release under a Voluntary Assignment-Sunday.--The delivery of a

release by a creditor to an assignee under a voluntary assignment, who is authorized by the assignor to receive it for him, is equivalent to a delivery of the same to the assignor personally: Allen vs. Gardiner.

The execution of such a release by delivery on Sunday, is not void under ch. 216, s. 7, of the Revised Statutes; not being labor, business, or work, within the ordinary calling of either of the parties to it, prohibited by that section: Id.

Sole and separate use, Estate for, what will create-Curtesy of Husband. Although no particular form of words is necessary to create an estate to the sole and separate use of a woman as against her present or future husband, yet such words must be used in the language limiting the use, as clearly and unequivocally express the intent to exclude his marital rights, and does not leave that intent a matter of doubt and speculation: Nightingale et al. vs. Hidden et al.

Hence, where the guardian and brother of a feme sole who was under age and contracted to be married, at her request, purchased an estate with her money, and took the deed to himself in fee, described therein as her guardian, habendum "to him, his heirs forever, to and for the only proper use, benefit, and behoof" of his ward, "her heirs and assigns forever," and the covenants of warranty and for quiet enjoyment ran to him, "his heirs and assigns, to and for the sole use, benefit, and behoof of her, her heirs and assigns," it was held, that these words, merely, did not create a trust for the sole and separate use of the ward, but, there being nothing for the guardian to do under the provisions of the deed, the Statute of Uses transferred the legal title to the ward, so as to admit her husband to curtesy in her estate: Id.

SUPREME COURT OF MASSACHUSETTS.1

Set-off-Notice-Promissory Note.-An overdue negotiable promissory note of a plaintiff, indorsed to and held by the defendant before the commencement of an action against him, is a proper subject of set-off, although no notice that the defendant held the same was given to the plaintiff before the commencement of the action: Cook vs. Mills.

Insolvency-Action by Foreign Corporation.—A certificate of discharge in insolvency is no bar to an action by a foreign corporation against the payee of a note who indorsed it to them in blank before its maturity,

1 From Charles Allen, Esq., Reporter; to appear in the 5th volume of his Reports.

although the note itself was executed and made payable in this commonwealth, by a citizen thereof: Producers' Bank vs. Farnum.

Wrongful Acts by Persons acting separately-Joint Trespass-Action against one. If several different creditors, acting separately, without concert, and without knowing that they were employing a common agent, have wrongfully caused their debtor to be arrested on their several writs, by the same officer, who served the writs simultaneously, and by virtue thereof committed the debtor to jail, where he was confined upon all of them at the same time, they are to be regarded as joint trespassers; and full satisfaction received by the debtor from one of them is a bar to an action by him against the others: Stone vs. Dickinson.

Conditional Promise-Burden of Proof.-If a written promise to pay money is given with a condition providing that it shall be void upon the happening of a certain event, the burden of proof, in an action against the maker, is upon the defendant to show that the event has happened: Thayer vs. Connor.

Collateral Security—Absolute Bill of Sale intended for.—Taking a bill of sale of personal property absolute in terms, but intended as collateral security, amounts only to a pledge, which is lost by giving up the possession thereof to the general owner, even though under restrictions as to the use of it: Walker vs. Staples.

Attached Property-Action against Officer for loss of-If attached property, of which due care is taken by the officer or keeper, is stolen, the officer is not liable for the loss: Dorman vs. Kane.

In an action against an officer to recover the value of attached property which has been stolen, if evidence has been introduced to show that in particular instances his keeper was careless in leaving the room in which the property was kept with the door unlocked, he may show in reply that it was the habit of the keeper to lock the door, when about to leave the room: Id.

If a judgment-debtor whose property has been attached on mesne process has paid the amount of the judgment, and informs the officer thereof, and demands the return of his property before the expiration of thirty days. from the rendition of the judgment, and the officer, without asking for delay or authority from the judgment-creditor to deliver up the property, replies that it is lost and he cannot deliver it up, this is a waiver of any right which he might otherwise have had for further time: Id.

An officer is not made liable for the conversion of attached property, by proof that it has been stolen from his possession: Id.

Statute of Frauds-Delivery and Acceptance-Duty of Judge where Evidence insufficient.-If the evidence to show a delivery and acceptance of goods, sufficient to satisfy the Statute of Frauds, is so slight that the court would set aside any number of verdicts, finding such delivery and acceptance, that should be rendered upon it, toties quoties, it is the duty of the judge to withdraw the case from the jury; and an exception lies to his refusal to do so: Denny vs. Williams.

A delivery and acceptance of goods, sufficient to satisfy the Statute of Frauds, can only be shown by some clear and unequivocal act: Id.

Jury Trial-Practice-Questions by Judge-Privileged Communications. The presiding judge at a trial may inquire of the jury on what ground they found their verdict, in the absence and without the consent of counsel; and their reply to such inquiry may be considered by this court, in determining the materiality of questions presented on a bill of exceptions: Lawler vs. Earle.

The owner of a building which has been set on fire may caution the persons employed by him therein, against a particular person suspected of being the incendiary; and his statements to them, if made in good faith for this purpose, are privileged communications, although they contain an unfounded criminal charge against the suspected person: Id.

County Commissioners, fucts certified by, not traversable on CertiorariProceedings of, not reversed for technical Inaccuracy.-If county commissioners have certified to this court their proceedings in a case before them, in compliance with the command of a writ of certiorari, the facts certified by them are not traversable, nor is other evidence admissible to control or contradict them, or to show that the judgment or decree of the commissioners ought to be reversed: Mendon vs. Commissioners of Worcester.

If it appears from the whole record of the proceedings of county commissioners, as certified by them to this court, in compliance with the command of a writ of certiorari, that their decision of a question before them was founded upon a consideration of adequate and uncontradicted evidence, and was substantially correct, and worked no injustice to anybody, the proceedings will not be vacated, although the commissioners' view of the law as to the burden of proof was not expressed with technical accuracy: Id.