money judgment, as in such care the relator has other adequate remedies at law against the sheriff for his neglect of duty.-STATE V. CONE, Fla., 25 South. Rep. 279. 61. MANDAMUS TO JUDGE Supersedeas Bond.-Man. damus will not lie to control the discretion of a judge, as by requiring him to allow a supersedeas in a case where such allowance rests in his discretion. Mandamus will, however, lie to compel a judge to fix the amount of a supersedeas bond, where the statute gives an absolute right to a supersedeas.-STATE V. FAWCETT, Neb., 78 N. W. Rep. 636.

62. MASTER AND SERVANT - Assumption of Risk.-An employee assumes a risk of such dangers attending the prosecution of his work as he would discover by the exercise of ordinary care for his personal safety, and for hurt happening to him from those dangers the employer is not responsible.-BENJAMIN ATHA & ILLINGWORTH CO. v. COSTELLO, N. J., 42 Atl. Rep. 766.

63. MASTER AND SERVANT Breach of EmploymentContract.-Though one of two joint employers could not terminate a contract of employment, yet he could break it by forbidding the employee to work, in which case the latter's remedy is for damages for loss of opportunity to work, measured by what could reasonably be considered to have been contemplated by the parties contracting as the probable result of its breach, and not for wages earned.-KENNEDY V. SOUTH SHORE LUMBER CO., Wis., 78 N. W. Rep. 567.

64. MASTER AND SERVANT-Dangerous Premises-Neg. ligence. The rule of duty for a master to use reasonable care that the place of working of his servants shall be kept safe is not fully applicable in a case where the work itself involves the place of working. In such a case the duty extends only to the use of reasonable care to discover and give notice of latent danger.-CURLEY V. HOFF, N. J., 42 Atl. Rep. 731.

65. MASTER AND SERVANT - Negligence-Assumption of Risk. The general rule concerning the assumption by a servant of an extra hazard may be varied by the facts of circumstances of the particular case, and no fixed rule can be laid down to determine what act of the servant would constitute contributory negligence. -FRANK V. BULLION BECK & CHAMPION MIN. CO., Utah, 56 Pac. Rep. 419.

66. MASTER AND SERVANT Proximate Cause Assumption of Risks.-Where, in a sawmill, an employee whose duty was to remove the materials from a roller bench on which such materials were carried from the place where the logs were sawed was furnished with a short iron tool with a hook end, the employer is not liable for injuries resulting from the fact that the hook was too short, or was straight instead of curved, or was too blunt, the employee being conclusively presumed to have assumed the danger of the use of such hook.-OLSON V. DOHERTY LUMBER Co., Wis., 78 N. W. Rep. 572.

67. MECHANICS' LIENS-Priority Estoppel.-A con. tract for the sale of land provided for the forfeiture of all improvements if final payment was not made as stipulated, and that, on default of an installment, the vendor could declare a forfeiture. After a default, the vendee leased the land, and the lessee, being in open possession, constructed a building thereon, persons furnishing material and filing claims therefor on the belief that the lessee owned the building. The vendor, with full knowledge, allowed the materials to be furnished without giving any notice of his rights. Held, that the vendor was estopped to claim a forfeiture, and prevent the lien claimants from having the prop. erty removed and sold to satisfy their liens, as allowed by statute.-BELL V. GROVES, Wash., 56 Pac. Rep. 401. 68. MORTGAGE Default in Interest.-When a mortgage to secure the payment of the principal of certain bonds at a specified day, and the interest thereon according to the provisions of coupons attached to the bonds, contains a covenant that at a fixed time after default in the payment of interest, and after demand, the principal shall become immediately due, and the

bonds and coupons are payable at a designated place, default in the payment of interest, within the meaning of that covenant, will result from the non-payment of the coupons, although not presented at the desig. nated place, and payment demanded.-NEW JERSEY PAPER-BOARD & WALL-PAPER MFG. Co. v. SECURITY TRUST & SAFE-DEPOSIT CO., N. J., 42 Atl. Rep. 746.

69. MORTGAGE-Foreign Corporations.-As against a mortgagor's creditors, who obtained no lien prior to a foreclosure sale to the mortgagee, but who attached before the recording of the sheriff's deed, the decree of foreclosure is not void on the ground that the mortgagee was a foreign corporation, and did not comply with the State laws governing such corporations.MILLER V. GATES, Mont., 56 Pac. Rep. 356.

70. MORTGAGES-Priorities-Release-Assignment.-A first mortgagee, with notice that there was a subsequent mortgage on part of the same premises, released that part of the mortgaged premises not covered by the subsequent mortgage. At the time the release was executed the then hoider of the second mortgage agreed in writing with the first mortgagee that he should give the release, and stipulated that the first mortgage should be first paid out of the unreleased part of the mortgaged premises. After this agreement and release, the holder of the second mortgage assigned it to Davis, who had no notice of the agreement made by his assignor. Held, that the lien of the first mortgage upon the unreleased lands was unimpaired by the release, and that it is entitled to priority of payment over the second mortgage.-CRESSMAN V. LAVIS, N. J., 42 Atl. Rep. 768.

71. MUNICIPAL CORPORATION Peddlers Itinerant Merchants.-One who delivers an article already sold, and collects the price, or who sells articles without traveling about, is not a "peddler or itinerant merchant."-CITY OF GREENSBORO V. WILLIAMS, N. Car., 32 S. E. Rep. 492.

72. MUNICIPAL CORPORATIONS - Power of RemovalMandamus.-Where the legality of a removal from a public office a disputed question, depending on the construction of statutory provisions, mandamus is not the proper remedy to restore the person removed to such office.-KIMBALL V. OLMSTED, Wash., 56 Pac. Rep. 377.

73. MUNICIPAL CORPORATIONS Warrants - Limitations.-Limitations do not begin to run against the city warrant until there is money in the treasury applicable to its payment, and the holder of the warrant has such notice as would enable him to present it for payment. -POTTER V. CITY OF NEW WHATCOM, Wash., 56 Pac. Rep. 394.

74. NEGLIGENCE Electricity. The plaintiff picked up a wire that was lying in a public highway, and was injured by an electric current. He brought suit against the telephone company, whose wire it was, and against the trolley company, whose current, it was contended, did the harm. Held, that the question whether the linemen of the telephone company had been reason. ably diligent in discovering the fallen wire, and in preventing probable injury, was properly left to the jury. -NEW YORK & N. J. TEL. Co. v. BENNETT, N. J., 42 Atl. Rep. 759.

75. PARTNERSHIP Action against Co-partner.-A partner cannot maintain an action for a money judg. ment against a co-partner, upon a claim of payment of a partnership debt, before a final accounting of partnership affairs has been had, except upon showing that that particular transaction had, by agreement, been withdrawn from the partnership account. And, in the absence of such showing, it is a defense which will bar a recovery to show that the partnership has not been dissolved, and that no final accounting of the partnership affairs has been had.-KUNNEKE V. MAPEL, Ohio, 53 N. E. Rep. 259.

76. PARTNERSHIP-Action between Partners.-An ac. tion by one partner, or, upon his death, by his repre sentative or heirs, against a co-partner, for contribu

tion, cannot be maintained until after an accounting or settlement of the affairs of the firm has been had, and a balance found due in favor of the partner asserting the claim, his representative or heirs.-PALM V. POPONOE, Kan., 56 Pac. Rep. 480.

77. PARTNERSHIP-Death of Partner.-A partnership contract treated the property as the active partner's, the dormant partner being secured a share of the net profits; and neither was to sell the stock without consent of the other. On the death of the active partner, his administrators assumed control, and continued the business in the name of the estate, with the knowl edge and consent of the dormant partner, who asserted no control as survivor. Held, that he was not liable for losses occurring thereafter.-STUBBINGS V. O'CONNOR, Wis., 78 N. W. Rep. 577.

78. PARTNERSHIP.-Where several parties unite in the purchase of real estate, not as a permanent investment, but as a speculation, and with a view of selling the same for profit, and there is community of ownership of the property, community of power in carrying on the enterprise, and community of interest in the profits and losses arising from the same, it will ordinarily be treated as a partnership.-JONES V. DAVIES, Kan., 56 Pac. Rep. 484.

79. PAYMENT-Evidence.-Where, in an action on an account, payment is pleaded, it is proper to instruct the jury that they may consider evidence in regard to prior related transactions between the parties, to aid them in determining whether the plea is sustained.OTTENS V. FRED KRUG BREWING CO., Neb., 78 N. W. Rep. 622.

80. PRINCIPAL AND AGENT-Factors.-Keepers of a tobacco salesroom received a consignment of tobacco for sale, and sold it at public auction, subject to the consignor's right to reject the bid, and then delivered it to the buyer, collecting the price, and paying it to the consignor. Their compensation was a commission on the sale. Held, that the salesroom keepers were agents of the consignor.-WHITE V. BOYD, N. Car., 32 S. E. Rep. 495.

81. PRINCIPAL AND AGENT-Knowledge of AgentNotice to Principal.-The rule whereby an agent's knowledge is imputed to his principal is subject to an exception in the case of an agent who is engaged in an independent fraudulent scheme without the scope of the agency.-HOUGHTON V. TODD, Neb., 78 N. W. Rep. 634.

82. PRINCIPAL AND AGENT-Loan to Agent-Liability of Principal.-In an action to recover money loaned to defendant's agent for use in defendant's business, where there has been no ratification, no recovery can be had on a special verdict which merely finds that the agent had authority to make the loan, and that plaintiff believed him to have such authority, because such verdict leayes it uncertain whether the agent's authority was real or only apparent; and, if it was the latter, plaintiff was not justified in relying thereon, unless, in the exercise of reasonable prudence, he was justified in believing that the agent had such authority.-MCDERMOTT V. JACKSON, Wis., 78 N. W. Rep.

598.

83. RAILROAD COMPANY-Contributory Negligence.Plaintiff was struck by a train while walking in the dark over a crossing near which he had lived for some time, and with which he was familiar. The crossing was protected by gates, but their operation was regularly stopped some time earlier in the evening. His View in the direction of the approaching train was obstructed by cars on side tracks which he had to cross before reaching the track on which the accident hap. pened, the one nearest to it being eight feet away. After crossing this last side track, he had an unobstructed view for 1,600 feet. The locomotive approached the crossing with its headlight lit and bell ringing. Held, that plaintiff was guilty of contributory negligence.-WHITE V. CHICAGO & N. W. RY. Co., Wis., 78 N. W. Rep. 585.

84. RAILROAD COMPANY-Ejection of Trespasser.The inference of implied authority arising from the brakeman's employment, from his custody of the com. pany's property, and from the duty owed to the master in respect to the train, will not be overcome by proof that the instructions of the company to its servants expressly required freight conductors not to per. mit unauthorized persons to ride upon freight trains. -WELSH V. WEST JERSEY & S. R. Co., N. J., 42 Atl. Rep. 736.

85. RAILROAD COMPANY-Negligence.-Where an engineer discovers a child in peril in time to avoid injur ing it by the exercise of reasonable diligence, and con. sciously fails to exercise such diligence, such failure is wanton negligence; and the company is liable, though the child is negligent.-ALABAMA G. S. R. Co. v. BURGESS, Ala., 25 South. Rep. 251.

86. RAILROAD CROSSINGS Negligence. Railroad companies must know the requirements of harvesting machines in general use throughout the State, as to the width of highway crossings necessary to enable persons to drive them safely over, and a failure to provide suitable crossings for such machines, whereby injuries occur, is negligence.-ATCHISON, T. & S. F. R. Co. v. HENRY, Kan., 56 Pac. Rep. 486.

87. REMOVAL OF CAUSES-Bond.-It is not necessary that the residence and sufficiency of the surety on the removal bond should appear in the record, in order to sustain the jurisdiction of the federal court. In the absence of anything to show that the surety was a resident of the State in which the suit was pending, or of any action by the State court accepting or refusing to accept him as surety, the statement of the petition for removal that the petitioners "have made and here. with file a bond with good and sufficient surety" must be accepted as true, until the contrary is shown.— PROBST V. COWEN, U. S. C. C., S. D. (Ohio), 91 Fed. Rep. 929.

88. REMOVAL OF CAUSES TO FEDERAL COURT.-Where a case that may be is duly removed from a State to a federal court, the jurisdiction of the State court over the cause at once ceases, and it can take no further step therein; and if thereafter the case is disposed of in the federal court, otherwise than on the merits, the plaintiff cannot recommence the action in the State court, although, under like circumstances, he might have done so had the cause not been removed.-BALTIMORE & O. R. Co. v. FULTON, Ohio, 53 N. E. Rep, 265.

89. SALES-Delivery-Acceptance.-One agreeing to buy a heater of a kind described, to be delivered free on board cars, to be "accepted, with the understanding that the heater is (the seller's) property until accepted and paid for," may reject any heater after such delivery.-COLLES V. LAKE CITIES ELECTRIC RY. Co., Ind., 53 N. E. Rep. 256.

90. SALES-Parol Contract-Statute of Frauds.-No recovery can be had on a contract for the sale of goods, within the statute of frauds (Civ. Code, § 1739), which is not in writing, in absence of clear and unequivocal proof of acceptance and receipt by the buyer.-DAUPHINY V. RED POLL CREAMERY CO., Cal., 56 Pac. Rep. 451.

91. SEDUCTION-Enticing Servant Declaration.-A count for enticing away a servant from the master's service, will not disclose a good cause of action unless it shows that the defendant had knowledge that the relation of master and servant existed.-CLARK V. CLARK, N. J., 42 Atl. Rep. 770.

In an

92. SLANDER — Presumptions. action for slander, the words spoken are presumed to have been spoken in the English language, unless the contrary is made to appear; and, if spoken in a foreign tongue, there can be no recovery, unless the words are set out in the tongue in which they were spoken, followed by a translation into English.-HEENEY V. KILBANE, Ohio, 53 N. E. Rep. 262.

93. SPECIFIC PERFORMANCE-Guaranty of Title-Time for Performance.-A party to a contract for the ex

change of land, who guaranties his title to be good, has a reasonable time in which to perfect it if it is found defective.-ALLSTEAD V. NICOL, Cal., 56 Pac. Rep. 452.

94. TAXATION-Enforcement.-When the law imposing a tax provides a special remedy for enforcing it, the method so provided is generally exclusive; and, if the only method adopted be illegal, the courts cannot substitute a different and legal method.-CITY OF OMAHA V. HARMON, Neb., 78 N. W. Rep. 622.

95. TELEGRAPH COMPANY - Negligence-Damages.Where, owing to a telegraph company's negligence in transmitting a message to the sender's brokers to buy cotton, they failed to buy, the sender was not bound to purchase the next day, to prevent or lessen his loss. -WESTERN UNION TEL. Co. v. CHAMBLEE, Ala., 25 South. Rep. 232.

96. TRESPASS-Damages.-The building of a levee on the land of another without his consent, by which it is claimed his land was made unfit for cultivation, will subject the party constructing the levee to the damages; but he will not be responsible for damages caused by the cutting of the levee by a mob, the law excluding such damages, under the rule that the party who commits the wrong cannot be held for what the law deems remote damages.-BENTLEY V. FISCHER LUMBER & MANUFACTURING CO., La., 25 South. Rep. 262. 97. TRESPASs--Injury to Sewer.-One having a parol license to maintain a sewer from his land across that of an adjoining owner may have an action for damages against a stranger who destroys or injures the sewer.-MILLER V. INHABITANTS OF GREENWICH TP., N. J., 42 Atl. Rep. 735.

98. TRIAL BY JURY-Special Legislation.-The right of trial by jury is a subject-matter of general legislation, and laws affecting it must be uniform in operation throughout the State. Const. art. 2, § 26.-SILBERMAN V. HAY, Ohio, 53 N. E. Rep. 258.

99. TRIAL-Jury Trial-Specific Performance. - Where the complaint is one for specific performance of an agreement to convey lands to a trustee as security, or in lieu thereof to pay their value to the trustee for security, and the answer does not allege any inability to perform, or that plaintiff has an adequate legal remedy, there being no other proof, a jury trial is properly denied.-O'BEIRNE V. BULLIS, N. Y., 53 N. E. Rep. 211. 100. TRIAL-Special Verdict-Sufficiency.-A royalty for the use of a patented device cannot be recovered on a special finding that its use was worth a certain sum, but that such sum was not due from the user of the device to the owner of the patent.-HABERKORN V. FT. WAYNE, C. & L. R. CO., Ind., 53 N. E. Rep. 254.

101. TRUST-Following Trust Funds-Preferences.-A trust creditor is not entitled to a preference over other creditors, unless he shows that the fund or property of the debtor which he seeks to affect with such prefer ence includes the trust property or its proceeds.SHUTE V. HINMAN, Öreg., 56 Pac. Rep. 412.

102. TRUSTS for CreditoRS-Knowledge of Trustee. -Though trustees in a deed of trust to secure creditors did not know of the debtor's intention to execute the deed, nor of its recordation, until afterwards, their knowledge of a prior unrecorded conveyance binds the beneficiaries.-MERCHANTS' BANK OF DANVILLE V. BALLOU, Va., 32 S. E. Rep. 481.

103. VENDOR AND PURCHASER-Notice of Fraud. - In an action to set aside a deed for fraud, a finding that the grantees, at the execution of a deed, had notice of facts putting them on inquiry, which would have led them to discover the fraud of their grantor in obtaining his title, is an inference of fact from the evidence adduced, denying grantees relief as innocent purchasers.- BANDELL V. JELLEFF, Wis., 78 N. W. Rep. 565.

104. VENDOR'S LIEN-Privilege of State and Parish.One selling real property on terms of credit, and retaining a vendor's lien and mortgage on the property sold as security for the purchase price, subsequent to

the passage of the license statute of 1894, conferring a first lien and privilege on all property, real and per sonal, of the license debtor, in favor of the State and parish, must be presumed to have possessed full knowledge thereof, and made the sale subject to the contingency that said privilege of the State and parish might prime his mortgage and vendor's lien on the proceeds of its sale.-FRAZEE V. DUPRE, La., 25 South. Rep. 260.

105. WASTE Rights of Life Tenant. Under Gen. Laws, ch. 268, providing that a life tenant who shall commit or suffer waste on the estate shall forfeit the place wasted, and double the amount of the waste, to the remainder-man, the life tenant is not responsible for loss by accidental fires.-SAMPSON V. GROGAN, R. I., 42 Atl. Rep. 712.

106. WATERS-Pollution of Rivers City Sewage.Pollution of a river by the discharge of city sewage gathered from a large area, and caused to flow into the stream by artificially constructed grades, cannot be justified as a natural and reasonable use of the river. -GREY V. MAYOR, ETC., OF CITY OF PATERSON, N. J., 42 Atl. Rep. 748.

107. WILLS-Charge on Land.-Under a will devising all plaintiff's property to his grandson, and stating that it is testator's desire that the grandson shall take charge of his grandmother, his mother and his sisters during their lifetime, no charge on the land for the support of such persons was intended. -PERDUE V. PERDUE, N. Car., 32 S. E. Rep. 492.

108. WILLS -Construction. A will declaring that testator's undivided share in partnership land was realty thereby fixes the character of such property as against the beneficiaries, though otherwise such land would be treated as personalty.-TODD V. MCFALL, Va., 32 8. E. Rep. 472.

109. WILLS-Devise-Legacies.-The amount of personalty owned by testatrix, and the amount of its proceeds at executor's sale, may be considered in deter mining whether a legacy was charged on real estate.LORD V. SIMONSON, N. J., 42 Atl. Rep. 741.

110. WILLS-Estates-Persons not in Esse.- Where a testator bequeaths land to his daughter for life, and then to her children, the court has power, on applica tion of the daughter and all her children then living, to order a sale of the estate, since after-born children will be concluded by such sale by representation of those then living.-EX PARTE YANCEY, N. Car., 32 S. E. Rep. 491.

111. WILLS-Residuary Devises.-A will directing the executor to distribute the residue of the estate "under the intestate laws of Pennsylvania," is an immediate gift of such residuary estate.-IN RE MCGOVRAN'S EsTATE, Penn., 42 Atl. Rep. 705.

112. WILLS-Latent Ambiguity.-Where a will offered for probate declares that it is a codicil to a will previously executed, extrinsic evidence is admissible to show that the former will was destroyed, and that the alleged codicil was a copy of the same, with such additions as testator desired to make to such original will.-WHITEMAN V. WHITEMAN, Ind., 53 N. E. Rep. 225.

113. WILLS-Validity-Conflict of Laws.-The validity of a residuary clause in the will of one domiciled in Pennsylvania, whereby he made a bequest to a city of Virginia for the purpose of establishing schools for the poor, is to be determined by the law of Pennsylvania, in respect, at least, to all real and personal estaté situ ated in the State.-HANDLEY V. PALMER, U. S. C. C., W. D. (Penn.), 91 Fed. Rep. 948.

114. WILLS-Vested Remainder.-A testator devised personalty to his daughter for life, providing that on her death it should "pass and belong absolutely to (her children), and to their respective children, and to the descendants or descendant of any that may have died leaving issue; such to take what its deceased parent would have taken, if alive." Held, that the remainder vested at the testator's death. - MCCOMB V. MCCOMB, Va., 32 S. E. Rep. 453.

upon the ground that the offering or payment of a reward to a public officer for the performance of what was, at all events, nothing more than his official duty, was against public policy, and the act of congress authorizing the attorney-general to offer and pay rewards did not include or authorize the offer or payment of any reward to a public officer under such circumstances.

NOTES OF IMPORTANT DECISIONS.

LIBEL - ALLEGATIONS, IN PLEADING.-One of the points decided by the Supreme Court of Washington, in Abbott v. National Bank of Commerce, is that one is not guilty of libel because of allegations in a pleading filed in a court of competent jurisdiction, if they are pertinent and material to the issue presented in the cause, though they are false and malicious. The court says: "We think it requires no argument to demonstrate that the words complained of were pertinent and material to the cause, and the question to be determined is, were they absolutely privileged, regardless of whether they were true or false, used maliciously or in good faith? The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evildisposed and malignant slanderer.' Bartlett v. Christhilf (Md.), 14 Atl. Rep. 518. It cannot be doubted that it is a privilege liable to be abused, and its abuse may lead to great hardships; but to give legal sanction to such suits as the present would, we think, give rise to far greater hardships. The rule is tersely stated in Wilson v. Sullivan (Ga.), 7 S. E. Rep. 274, as follows: All charges, all allegations and averments contained in regular pleadings, addressed to and filed in a court of competent jurisdiction, which are pertinent and material to the redress or relief sought, whether legally sufficient to obtain it or not, are absolutely privileged.' In Hoar v. Wood, 3 Metc. 193, the Supreme Judicial Court of Massachusetts, speaking through Chief Justice Shaw, say: "Then we take the rule to be well settled by the authorities that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice, and be actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry. The question, therefore, in such cases, is not whether the words spoken are true, not whether they are actionable in themselves, but whether they were spoken in the course of judicial proceedings, and whether they were relevant and pertinent to the cause or subject of inquiry.' The authorities which support this proposition are so numerous that we will undertake to cite only a few of the

leading and more recent cases: Ash v. Zwietusch, 159 Ill. 455, 42 N. E. Rep. 854; Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. Rep. 12; Hollis v. Meux, 69 Cal. 625, 11 Pac. Rep. 248; Link v. Moore (Sup.), 32 N. Y. Supp. 461; Gains v. Insurance Co. (Ky.), 47 S. W. Rep. 884; Bartlett v. Christhilf (Md.), 14 Atl. Rep. 518; Runge v. Franklin (Tex. Sup.), 10 S. W. Rep. 721; Wilson v. Sullivan (Ga.), 7 S. E. Rep. 274; Moore v. Bank, 123 N. Y. 420, 25 N. E. Rep. 1048; Rainbow v. Benson, 71 Iowa, 301, 32 N. W. Rep. 352.

"It appearing that the words of which the plaintiff complains were used in a pleading filed in a court of competent jurisdiction, and that they were pertinent and material, we conclude that they fall within that class of communications which the law regards as absolutely privileged, and the judgment must be affirmed."

CONTRACT-NOTE-CONTRADICTION BY ORAL TESTIMONY.-In Hall v. First National Bank, 52 N. E. Rep. 154, decided by the Supreme Judicial Court of Massachusetts, it was held that an understanding, at the time plaintiff gave defendant bank a note, that it would renew it till business should improve, contradicts the promise in the note to pay on maturity; so that. not being in writing, it cannot be proved, even in equity, in suit for specific performance thereof, there being no fraud other than that of relying on the principle of law against such contradiction. The court said in part: "The understanding alleged in the bill that the bank would renew the plaintiff's notes until such time as the improvement in the business situation should enable the plaintiff to proceed in business without such assistance, is an understanding which directly contradicts the promise expressed on the face of the notes; for whereas, the promise expressed in the notes is a promise to pay money at the maturity of the instrument, the contemporary understanding cuts it down to a promise to give a new promise to pay. It is not denied, and, on the contrary, rather is implied, in the bill that the agreement to renew was not in writing.. Adams v. Wordley, 1 Mees. & W. 374; Young v. Austen, L. R. 4 C. P. 553. If so, it could not be proved in contradiction of any written contract, and especially not in contradiction of a bill or note in an action at law. Spring v. Lovett, 11 Pick. 417, 420; Batchelder v. Insurance Co., 135 Mass. 449; Hoare v. Graham, 3 Camp. 57; Young v. Austen, L. R. 4 C. P. 553; Abrey v. Crux, L. R. 5 C. P. 37. 44; Hill v. Gaw, 4 Pa. St. 493; Heist v. Hart, 73 Pa. St. 286, 289. In Flight v. Gray, 3 C. B. (N.S.) 320, there is an intimation that relief might be given in equity upon such a promise, and some American cases treat the repudiation of an oral understanding, even though entered into with no intent not to perform it, as itself a sufficient fraud. Rearich v. Swinehart. 11 Pa. St. 233, 238, 240; Taylor v. Gilman, 25 Vt. 411; Murray v. Dake, 46 Cal. 644. But this last notion has been denied by this court in cases depending upon somewhat similar principles. Bourke v. Callanan, 160 Mass.