provision respecting connivance, collusion, condonation, or recrimination, intended to adopt the general principles which had governed the ecclesiastical courts of England in granting divorces from bed and board, so far as these principles were applicable and were found to be reasonable. Although the procedure may be "according to the course of proceeding in ecclesiastical courts" (Pub. Stat., ch. 146, § 33), yet it is not clear that the decisions of those courts upon questions of substantive law are of the same weight here as are the decisions of the English courts of law and chancery. One reason is that the ecclesiastical courts proceeded according to the canon law as followed and adopted in England, but the canon law was never adopted by the colonists of Massachusetts. It was not suited to their opinions or condition. Marriage and divorce here have been regulated wholly by statute. Com. v. Munson, 127 Mass. 459; S. C., 34 Am. Rep. 411; Sparhawk v. Sparhawk, 116 Mass. 315. to protect her against seduction, nor is he compelled always to attend her, or to remain at home with her. A chaste husband ought, if he desires it, to have a wife who will remain chaste when exposed to the temptations which are incident to the ordinary conditions of modern social life; and if she commits adultery against his wishes, and without his procurement, he ought to be permitted to obtain evidence of it. Morrison v. Morrison, 136 Mass. 310, was decided upon the ground that the justice who heard the cause found as a fact that the husband, from the time that his suspicions were first excited, was in his mind willing that his wife should commit adultery, provided that he could thereby obtain a divorce; and that this finding, together with the evidence of his conduct toward his wife and suspected paramour, was sufficient to warrant the finding of connivance. The only cases there cited are those which hold that a corrupt intent is necessary to constitute connivance. Decree affirmed. [In Bunnell v. Greathead, 49 Barb. 106, an action of crim. con., where the plaintiff did not interpose to prevent, but followed his wife, and secretly watched the illicit intercourse, he could recover only actual damages.-ED.] By Stat. 20 & 21 Vict., ch. 85, a court for divorce and matrimonial causes was established in England, and jurisdiction given it to decree a dissolution of marriage, and it was expressly provided that if the court should find that the petitioner had, during the mar riage, been accessory to or conniving at the adultery, or had condoned the adultery complained of, or that the petition was presented or prosecuted in collusion with either of the respondents, the petition should be NEW YORK COURT OF APPEALS ABSTRACT. dismissed. Section 38. By section 31 it was also provided that if the court found that the case of the petitioner was proved, and did not find either connivance, collusion, or condonation, the court should not be bound to pronounce a decree if it should find certain other facts concerning the libellant, of which one was "such willful neglect or misconduct as has conduced to the adultery." It is obvious that decisions under this statute may turn upon its provisions, and not upon general principles applicable to the law of divorce. It was partially, at least, upon the construction of this statute that Gipps v. Gipps, 11 H. L. Cas. 1, was decided. It is not easy to reconcile all the decisions of the ecclesiastical courts upon connivance. The law and facts are not always separated, and those courts have considered questions of morals somewhat more freely than we, under our statutes, feel at liberty to do. Many of the cases are collected in Phillips v. Phillips, 1 Rob. Ecc. 144; 3 Notes Cas. 444; 4 id. 523; 5 id. 435: and it is there held that a corrupt intention is necessary to constitute connivance. The reasonable foundation of the rule that connivance prevents the libellant from maintaining his libel for adultery, although it may be consent unexpressed and unknown to the libellee. This consent must necessarily often be inferred from circumstances, but the fact must be found that the libellant either desired and intended, or at least was willing, that the libellee should commit adultery before the libellant can be said to have connived at it. There is a manifest distinction between the desire and intent of a husband that his wife, whom he believes to be chaste, should commit adultery, and the desire and intent to obtain evidence against his wife, whom he believes already to have committed adultery, and to persist in her adulterous practices whenever she has opportunity. It was argued that it was the duty of the husband to protect his wife, and to control her conduct if it excited suspicions; and undoubtedly husband and wife ought mutually to aid each other in doing right and to guard each other from doing wrong. But the legal duty of the husband to control the conduct of his wife cannot be greater than his legal right; and by modern law and usage the right of a husband to control the conduct of his wife has largely, if not wholly, disappeared. A husband cannot imprison his wife in order CONTRACT FOR BUILDING-WAIVER OF ARCHITECT'S CERTIFICATE.--Where by the terms of a building contract no payment is to be made until the architect shall certify that it is due, and the last payment shall not be due nntil he shall certify that the contract has been fully performed, etc., to his satisfaction, the owner may waive the certificate, and if he accepts the house as completed the builder may recover, although no certificate has been given, and even though the architect was not satisfied. Smith v. Walker. March 26, 1886. Opinion by Danforth, J. EVIDENCE TO EXPLAIN-BOOKS OF ACCOUNT. Defendants, in order to establish their version of a contract with plaintiff as a book canvasser, may not introduce in evidence their books containing accounts with other agents employed by them, in the same capacity, it not appearing that the plaintiff was cognizant of the transactions indicated. The transactions of the defendants with other agents were res inter alios acta. The only apparent object of the evidence was to show by inference what the contract with the plaintiff was, or the practice of the defendants in their business in respect to compensation. On neither ground can its admission be justified. It did not appear that the plaintiff was cognizant of the transactions indicated, and as to him the entries were the mere declarations of the defendants in their favor. Newhall v. Appleton. April 13, 1886. Opinion by Andrews, J. ACTING AS SECRETARY-COMPENSATION.-A person who is appointed and acts as secretary of a corporation, and who is neither a director nor a stockholder, is entitled to a reasonable compensation, although no rate was agreed upon, and there was no express agreement for compensation. Such person stands in no different position from an employee of any other grade who has rendered service at the request of the corporation. Smith v. Long Island R. Co. April 13, 1886. Opinion by Andrews, J. DEED-AWARD OF DAMAGES FOR CLOSING ROADWARRANTY.-(1) After an award of damages for closing a highway had been made, and the road in fact closed, A., the owner of adjoining premises, conveyed the same to B., bounding the lands by the closed road. Held, that the right to the award did not pass by the deed. Schuylkill Nav. Co. v. Decker, 2 Watts. 343; McFadden v. Johnson, 7 Penn. St. 335. The purchaser knew, or was bound to know, that the public highway no longer existed, and must be presumed to have bought and fixed the price in view of that fact. (2) A covenant of warranty is commensurate with the grant, and is not applicable to an easement not in fact conveyed. King v. Truslees of St. Patrick's Cathedral. April 13, 1886. Opinion by Finch, J. MORTGAGE FORECLOSURE COLLATERAL MENT TO DELAY FORECLOSURE.-On the execution of a AGREEbond and mortgage, no money was paid, but the plaintiff agreed to lend the defendant $27,000, the amount thereof, in installments, provided he should erect certain houses in a certain manner on the land, and in case he did so, according to the terms of the agreement, no demand of payment of the mortgage was to be had until ninety days after the last advance was due. The plaintiff advanced $11,500, but the defendant abandoned his undertaking and left the houses unfinished. Held, that the plaintiff was not bound to delay the foreclosure for the ninety days. The agreement to advance money and to delay foreclosure were both dependent upon the undertaking of the mortgagor to go on and erect certain buildings, and when the latter repudiated the further perform ance of the contract the plaintiff was discharged from all obligations to do either, and at liberty to enforce the securities for the money already advanced. Ferris v. Spooner. March 23, 1886. Opinion by Danforth, J. NEGOTIABLE INSTRUMENT-MISAPPLICATION OF ACCOMMODATION PAPER-APPEAL-ERROR AT TRIAL-ISSUE NOT SUBMITTED TO JURY.-(1) The notes in suit were renewals of others made by defendant, to be used by one White in obtaining certain specified stock which he had hypothecated. White used the notes to pay a note to plaintiff, given for 400 shares of such stock, which had been placed in White's hands as trustee of a "pool" formed to manipulate its price in the market, plaintiff paying him $600 in cash, the difference between the value of the stock and the notes. Held, that the plaintiff acquired a legal title to the notes transferred, and had a right of action upon those given in renewal against the defendant. We are of the opinion that the transfer of the notes to the plaintiff was substantially in accordance with the object and design with which they were made. The failure of White afterward to exercise his control over the stock, or to form a new pool for its management, would not constitute a defeuse to the notes which had already been transferred to the accomplishment of the purpose for which they were made and delivered to White. As to the ultimate use to be made of the stock, White was the agent of the defendant, and was alone answerable to him for a neglect to carry out his principal's purpose. The contract of transfer, when made, was precisely in accordance with the authority conferred upon White, and any subsequent misapplication of the stock by him would not impair the validity of the transfer. (2) Where both parties treat the PLEADING-NEGLIGENCE OF TRUSTEE.-In an action close or enforce payment of interest on a mortgage, to charge a trustee with negligence in failing to forethe complaint must allege that the defendant knew failing to ascertain that fact. Wooley v. Baldwin, of the insufficiency of the security, or was negligent in March 23, 1886. Opinion per Curiam. PRACTICE-SERVICE OF SUMMONS BY PUBLICATIONAFFIDAVIT-CODE OF PROCEDURE, § 135.-In an action to foreclose a mortgage an affidavit for the service of the summons by publication, which stated that "the defendants caunot, after due diligence, be found within this State," they being residents of other States, as therein stated, and "that the summons herein was duly issued for said defendants, but cannon-residence." not be served personally upon them by reason of such granting of an order under section 135 of the old Code. Held sufficient to authorize the Kennedy v. New York Life Ins. Co. March 23, 1886. Opinion by Miller, J. TRIAL-INSTRUCTIONS-SUFFICIENCY OF EXCEPTION. -In an action for injury to plaintiff's son through a defective machine, at the close of the judge's charge, defendant's counsel requested the court to charge that and that the defendant used proper precautions by "if the jury believe the employment was dangerous, notice and instruction concerning it, the plaintiff cannot recover." The court replied: "I decline to charge that. I charge, on the contrary, that if this was daugerous to life and limb, as I have defined to you, then it comes within the condemnation of the statute (ch. 122, Laws 1876), and then nothing can protect the party from liability except the absolute consent of the plaintiff." The record then states, "Defendant excepts." Held, that the exception was sufficient; propositions, one of which was correct and the other that this was not the case of a single exception to two erroneous, but that the real point to be brought to the attention of the court was not that notice and innecessarily exempt the defendant from the charge of struction as to the use of the machine would alone negligence, but that an absence of negligence on the part of the defendant would be a defense to a liability dangerous. The defendant, in other words, sought to based on the statute, although the employment was induce the court to modify its charge that the defendant was liable if the employment was dangerous, irrespective of negligence. It is plain that the request was so understood by the court. Hayes v. Bush & Denslow Manuf. Co. March 23, 1886. Opinion by Andrews, J. UNITED STATES SUPREME COURT AB- against distinct parties on distinct causes of action, ot APPEAL AMOUNT INVOLVED-JOINDER OF DECREES liabilities, cannot be joined, to give the Supt. Ex case as presenting questions of law only, and do not Hicks, 18 N. Y. 558; Colligan v. Scott, 58 id. 670. Provost v. McEncroe. March 26, 1886. Opinion by Ru ger, C. J. bor was an infamous crime, within the meaning of the fifth amendment of the Constitution of the United States, which declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury;' and therefore could not be prosecuted by information in any court of the United States. How far a convict sentenced by a court of the United States to impris onment in a State prison or penitentiary, and not in terms sentenced to hard labor, can be put to work, either as part of his punishment or as part of the discipline and treatment of the prison, was much discussed at the bar, but we have not found it necessary to dwell upon it, because we cannot doubt that at the present day imprisonment in a State prison or penitentiary, with or without hard labor, is an infamous punishment. It is not only so considered in the general opinion of the people, but it has been recognized as such in the legislation of the States and Territories, as well as of Congress. In most of the States and Territories, by Constitution or statute) as is shown in the supplemental brief of the plaintiffs in error), all crimes, or at least statutory crimes, not capital, are classed as felonies or as misdemeanors, accordingly as they are or are not punishable by imprisonment in the State prison or penitentiary. The acts of Congress referred to at the argument clearly show that the opinion of the legislative branch of the National government, so far as it has been expressed, is in full accordance with what we hold to be the true judicial construction of the Constitution. The result is that all the crimes charged against the defendants in this information are infamous crimes, within the meaning of the fifth amendment of the Constitution, and that the defendants cannot be held to answer in the courts of the United States for any of those crimes otherwise than on a presentment or indictment of a grand jury. March 22, 1886. Mackin v. United States. Opinion by Gray, J. (6 Sup. Ct. Rep. 777.) EVIDENCE-JUDICIAL NOTICE-PUBLIC SURVEY.-A court will take notice of the boundaries of the State or Territory where it holds its sessions, and of judicial districts, and of municipal subdivisions within it. If the public surveys have established the distance from its capital to any such subdivision, the court will take notice of the fact; and if private property be shown to be in that subdivision, its distance also from the capital will be judicially noticed, notice of the general fact embracing all facts included in it. March 22, 1886. Hoyt v. Russell. Opinion by Field J. (6 Sup. Ct. Rep. 786.) PEDIGREE ANCIENT DEED. (1) Declarations of deceased persons, related de jure by blood or marriage, to the family in question, may be given in evidence on questions of pedigree; and slight independent proof of the relationship is sufficient. The question is whether the recitals made in the deed of Samuel C. Young to John Holmes, to the effect that Samuel Young, the patentee, had died intestate, leaving one child only, namely, the said Samuel C. Young, the grantor, were admissible in evidence against the defendants, who did not claim title under the deed. The fact to be established is one of pedigree. The proof to show pedigree forms a well-settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessity; for as in inquiries respecting relationship or descent facts must often be proved which occurred many years before the trial, and were known to but few persons, it is obvious that the strict enforcement in such cases of the rules against hearsay evidence would frequently occasion a failure of justice. Tayl. Ev., § 635. Traditional evidence is therefore admissible. Jackson v. Cooley, 8 Johns. 99; Davis v. Wood, | 1 Wheat. 6. The rule is that declarations of deceased persons who were de jure related by blood or marriage to the family in question may be given in evidence in matters of pedigree. Jewell v. Jewell, 1 How. 219; Blackburn v. Crawfords, 3 Wall. 175; Johnson v. Lawson, 2 Bing. 86; Vowles v. Young, 13 Ves. 147; Monkton v. Atty-General, 2 Russ. & M. 159;. White v. Strother, 11 Ala. 720. A qualification of the rule is that before a declaration can be admitted in evidence the relationship of the declarant with the family must be established by some proof independent of the declaration itself. Monkton v. Attorney-General, 2 Russ. & M. 156; Attorney-General v. Kohler, 9 H. L. Cas. 660; Rex v. All Saints, 7 Barn. & C. 789. But it is evident that but slight proof of the relationship will be required, since the relationship of the declarant with the family might be as difficult to prove as the very fact in controversy. Similarity of names and the possession of the paper are entitled to weight. Applying these rules, we are of opinion that the recital in the deed of Samuel C. Young to John Holmes, supported as it was by the circumstances of the case shown by the evidence, was admissible, as tending to prove the facts recited, namely, that Samuel Young, the patentee, was dead, and Samuel C. Young, the grautor, was his only child and heir. (2) A deed sixty years old is admissible as an ancient deed, where it was produced from the grantee's papers in the custody of his heirs, and he and his heirs had paid the taxes down to the bringing of the action. March 22, 1886. Fulkerson v. Holmes. Opinion by Woods, J. (6 Sup. Ct. Rep. 780.) FRAUD-CONVEYANCES-GIFT BY CREDITOR TO CHILDREN OF DEBTOR AFTER SETTLEMENT. The beneficiary under the trust deed of a debtor, after the settlement of all the claims, may, without presumption of fraud, join with the trustee and other parties concerned in a conveyance of part of the property for the benefit of the debtor's children. March 22, 1886. Van Riswick v. Spalding. Opinion by Gray, J. (6 Sup. Ct Rep. 788.) INSURANCE-MARINE-CONTRACT - SUBROGATION OF CARRIER. (1) Where an oral agreement for carriage was made on one day, with the understanding that the bill of lading should follow on the next day, and the certificates of the agent of the insurance company, without which the policy of insurance did not attach on the goods, were made on the first-mentioned day, and described the goods as on board the vessel, the contract of carriage and the contract of insurance were substantially contemporaneous. (2) A carrier may lawfully stipulate with a shipper of goods to be allowed the benefit of insurance obtained by the latter, even as against his own negligence, and neither the owner nor the insurer can maintain any action against the carrier inconsistent therewith. In any form of remedy, the insurer can take nothing by subrogation but the rights of the assured. Comegys v. Vasse, 1 Pet. 193, 214. It follows that if the assured has no such right of action none passes to the insurer; and that if the assured's right of action is limited or restricted by lawful contract between him and the person sought to be made responsible for the loss, a suit by the insurer, in the right of the assured, is subject to like limitations or restrictions. Simpson v. Thomson, 3 App. Cas. 279; Globe Ins. Co. v. Sherlock, 25 Ohio St. 50, 68. Any lawful stipulation between the owner and the carrier of the goods, limiting the risks for which the carrier shall be answerable, or the time of making the claim, or the value to be recovered, applies to any suit brought in the right of the owner, for the benefit of his insurer, against the carrier. York Co. v. Central R.. 3 Wall. 107; Express Co. v. Caldwell, 21 id. 274; Hart v. Pennsylvania R. Co., 112 U. S. 331; Mobile & M. Ry. v. Jurey, 111 id. 584. The stipulation in these bills of lading that the carriers "shall not be liable for loss or damage by fire, collision, or the dangers of navigation," clearly does not protect them from liability for any loss occasioned by their own negligence. Railroad Co. v. Lockwood, 17 Wall. 357. But the stipulation upon the subject of insurance, in the bills of lading before us, is governed by other considerations. It does not compel the owner of the goods to stand his own insurer, or to obtain insurance on the goods; nor does it exempt the carrier, in case of loss by negligence of himself or his servants, from liability to the owner, to the same extent as if the goods were uninsured. It simply provides that the carrier, when liable for the loss, shall have the benefit of any insurance effected upon the goods. It is conclusively settled, in this country and in England, that a policy of insurance, taken out by the owner of a ship or goods, covers a loss by perils of the sea or other perils insured against, although occasioned by the negligence of the master or crew or other persons employed by himself. Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213; Copeland v. New England Ins. Co., 2 Metc. 432; General Ins. Co. v. Sherwood, 14 How. 351, 366; Davidson v. Burnand, L. R., 4 C. P. 117, 121. No rule of law or of public policy is violated by allowing a common carrier, like any other person having either the general property or a peculiar interest in goods, to have them insured against the usual perils, and to recover for any loss from such perils, though occasioned by the negligence of his own servants. By obtaining insurance, he does not diminish his own responsibility to the owners of the goods, but rather increases his means of meeting that responsibility. If it were true that a ship-owner, obtaining insurance by a general description upon his ship and the goods carried by her, could in case of the loss of both ship and goods, by perils insured against, and through the negligence of the master and crew, recover of the insurers for the loss of the ship only, and not for the loss of the goods, some trace of the distinction would be found in the books. But the learning and research of counsel have failed to furnish any such precedent. Tate v. Hyslop, 15 Q. B. Div. 368; Jackson Co. v. Boylston Ins. Co., 139 Mass. 508; Rintoul v. N. Y. C. R. Co., 21 Blatch. 439; S. C., 17 Fed. Rep. 905. March 15, 1886. Phonix Ins. Co. v. Erie West. Transp. Co. Opinion by Gray, Bradley, J., dissenting. J. ABSTRACTS OF VARIOUS RECENT DE- NOTICE AGENCY-TO SELL - RECEIVING PAYMENT PRINTED ON BILL.-(1) An agent for the sale of chattels may collect pay for the same in the absence of any prohibition known by the purchaser, either by usage or express notice. It would have been easy for the plaintiff to inclose the bill in a letter of advice, calling Hayes, 33 Me. 169. A travelling agent, who assumes only to solicit orders for goods to be sold at the option of his principal, as in McKindly v. Dunham (Wis.), 42 Am. Rep. 740, may well be held unauthorized to make collections. So a broker, not intrusted with the article sold, may not be authorized to receive the pur chase-money. Higgins v. Moore, 34 N. Y. 416; Barring v. Corrie, 2 B. & Ald. 137; Story Agen., § 109. (2) The purchaser is not at fault for not seeing a notice, printed in red ink with small type at the top of the bill-head, requiring payment to be made by check to the order of the principal for goods sold by an agent. kell, J. Maine Sup. Ct. (4 East. Rep. 617.) Feb. 13, 1886. Trainer v. Morrison. Opinion by Has lant, as counsel, propounded a question to a witness. CONTEMPT-BY ATTORNEY WHAT CONSTITUTESDuring the trial of the cause before a jury, the appelTo this question an objection was sustained. After this ruling was announced the appellant rose to his feet, and insisted upon making an argument on the question ruled upon. The court requested him to sit down, as an argument was not then in order, but as the statement recites, the appellant "peremptorily, and in the most defiant mauner, declared that he would not obey the request of the court aud said: 'I will stand here while it suits me to do so.'" The court again directed him to be seated. This direction was disobeyed, whereupon the sheriff was directed to remove the appellaut to another part of the court-room. The sheriff obeyed this order, and while the appellant was passing in front of the judge's bench, he said to the judge: "I will get even with you." A counterstatement was filed by the appellant, giving a somewhat different version of the matter, and showing that the judge, in ruling upon the objection, made au ill-tempered and undignified remark. We do not deem it necessary to set forth in full the statement made by the appellant, for we cannot yield to it as against the statement made by the judge. Where a matter takes place in the presence of the court, and the judge places in the record a statement of the occurrence, the appellate court is bound to accept as true the statement of the judge. It would lead to unseemly conflicts, and greatly impair the power of a court, and much weaken the respect which counsel are bound to yield to it, to permit attorneys to contradict statements made by the judge, rehearsing matters which occurred in open court. As that statement is confined to matters that occurred in open session, and in the presence of the judge, we must treat it as importing absolute verity. While we are compelled to accept the statement of the judge as true, we can readily perceive, from the explanation contained in the counter-statement of the appellant, that the judge was betrayed into a discourteous remark that was likely to inflame the anger of an attorney, and lead him into a line of conduct incompatible with the duty judge should manifest bad temper while on the bench. he owed to the court. It is a matter of regret that a or rudely treat counsel, but the wrong of the judge cannot excuse the misconduct of counsel. It is often necessary for a judge to be stern and determined, but it is never necessary to be ill-tempered or discourteous. Even if we should adopt appellant's theory that the judge was in the wrong, still we cannot assent to the conclusion that he was not himself guilty of a contempt, for the ill-temper or harshness of the judge will not excuse a positive disobedience of the orders of the court, or a contemptuous disregard of its authority. Ind. Sup. Ct. March 5, 1886. Holman v. State. Opinion by Elliott, J. (5 N. E. Rep. 256.) the attention of the defendants to the fact that he was unwilling to intrust collections to his agent. Kinsman v. Kershaw, 119 Mass. 140; Putnam v. French, 53 Vt. 402; Wass v. M. M. Ins. Co., 64 Me. 537; Capel v. Thornton, 3 Carr. & Payne, 352; Greely v. Bartlett, 1 Me. 173; Goodenow v. Tyler, 7 Mass. 36; Story Agen., § 102. Knowledge of this prohibition by the purchaser may be inferred from particular circumstances of the sale, or from customary usages of trade with which he is familiar, as well as by direct notice that the authority of the agent is limited in this particular. Persons dealing with an agent have a right to presume that his agency is general, and not limited, and notice of the limited authority must be brought to their knowledge, before they are to regard it. Methuen Co. v. CORPORATIONS-SUBSCRIPTIONS TO STOCK.-A subscriber to stock in a corporation, who never took any part in the organization of the corporation, cannot be held upon his subscription, when it does not appear that the whole capital, named in such subscription agreement, was subscribed. "It is a rule of law too well settled to be now questioned," says Shaw, C. J., "that when the capital stock and number of shares are fixed by the act of incorporation, or by any vote or by-law passed conformably to the act of incorporation, no assessment can be lawfully made on the share of any subscriber, until the whole number of shares has been taken. This is no arbitrary rule; it is founded on a plain dictate af justice and the strict principles regulating the obligation of contracts. When a man subscribes a share to a stock to consist of one thousand shares, in order to carry on some designated en terprise, he binds himself to pay a thousandth part of the cost of such enterprise. If only five hundred shares are subscribed for, he would be held, if liable to assessments, to pay a five hundredth part of the cost, besides incurring the risk of entire failure and loss of the amount advanced toward it." Stoueham B. R. R. Co. v. Gould, 2 Gray, 278; Cabot & U. S. B. Co. v. Chapin, 6 Cush. 50; Atlantic Cot. Mills v. Abbott, 9 id. 423; Salem Mill Dam Co. v. Ropes, 6 Pick. 23; S. C., 9 id. 187; Central T. Corp. v. Valentine, 10 id. 142; N. H. Cent. R. Co. v. Johnson, 30 N. H. 390. This rule may be changed by a provision in the articles of subscription. Or if a subscriber, with a full knowledge of the want of the requisite amount of subscriptions, attend meetings of the corporation and co-operate in such of its acts as could be only properly done on the assumption that the subscribers intended to proceed with the stock partially taken up, he might be estopped from setting up such defense. Cabot & U. S. B. Co. v.Chapin, supra. Me. Sup. Ct., March 15,1886. Rockland, etc., Steamboat Co. v. Sewall. Opinion by Virgin, J.. CRIMINAL LAW-HOMICIDE-SELF-DEFENSE DUTY TO RETREAT-Ordinarily when a party is assaulted by another, he must refreat before he is justified, in repelling such assault, in taking the life of his assailant; but where an assault is made with a dangerous or deadly weapon, and in so fierce a manner as not to allow the party assaulted to retire without manifest danger of his life or great bodily injury, he is not required to retreat; and if the character of the attack is such that as a prudent man he would believe that the assailant intended to take his life, or inflict upon him great bodily injury, and acting under such belief, he kills his assailant, the killing will be justifiable. The court gave au instruction in these words: "You are instructed that it is a general rule of law, that where one is assaulted by another, it is the duty of the person thus assaulted to retire to what is termed in the law a wall or ditch before he is justified in repelling such assault in taking the life of his assailant. But cases frequently arise where the assault is made with a dangerous or deadly weapon, and in so fierce a manner as not to allow the party thus assaulted to retire without manifest danger of his life or great bodily injury; in such cases he is not required to retreat." The defendant assigns the giving of this instruction as error. He contends that the court misstated the law in holding the general rule to he that the assaulted must retreat, and in holding, by implication, that he is excused from doing so only where it would manifestly be dangerous to attempt it. His position is that the assailed is under obligation to retreat only where the assault is not felonious, and that where it is felonious, as the evidence tends to show in this case, he may stand his ground, and kill his assailant, whatever his means of retreat and escape might be, provided only he had reasonable cause for believing that if he stood his ground, and did not kill his assailant, his assailant would kill him, or inflict great bodily injury. Under this theory and the evidence the jury might have found that the defendant was justified in killing his father, and that too, even though there had been other evidence showing that his father was so old and decrepit that the defendant could have escaped him by simply walking away from him. It is perhaps not to be denied that the defendant's theory finds some support in text-books and decisions. But in our opinion it cannot be approved. This court has, to be sure, held that a person assailed in his own house is not bound to retreat, though by doing so he might manifestly secure his safety. State v. Middleham, 62 Iown, 150. While there is some ground for contending that the rule does not fully accord with the sacredness which in later years is attached to human life, the course of decisions appeared to be such as not to justify a departure from it. The rule for which the defendant contends seems, so far as it finds support in the authorities, to be based upon the idea that where a person attempts to commit a felony, it is justifiable to take the offender's life if that is the only way in which he can be prevented from cousummating the felony attempted. But where a person is assailed by another who attempts to take his life, or inflict great bodily injury, and the assailed can manifestly secure safety by retreating, then it is not necessary to take the life of the assailant to prevent the consummation of the felony attempted. In Roscoe Crim. Ev. 768. note, the annotator says: "When a man expects to be attacked, the right to defend himself does not arise until he has done every thing to avoid that necessity," citing People v. Sullivan, 7 N. Y. 396; Mitchell v. State, 22 Ga. 211; Lyon v. State, id. 399; Cotton v. State, 31 Miss. 504; People v. Hurley, 8 Cal. 390; State v. Thompson, 9 Iowa, 188; U. S. v. Mingo, 2 Curt. 1. In our opinion the court did not err in giving the instruction in question. Iowa Sup. Ct. March 20, 1886, State v. Donnelly. Opinion by Adams, C. J. EVIDENCE-NOTE OWNED BY WITNESS.-In an action upon a promissory note, a witness was called for the purpose of producing the note in suit, and handed it to plaintiff's counsel at the latter's request, saying he would allow him to take it if he would return it, but declined to give it up, as he claimed it as his property. Held, that the note so held could not be put in evidence, and that the court rightly refused to order the witness to produce the note for use by the plain. tiff in proving his case. This was in effect to ask the court to decide in a suit to which Fogg was not a party, that a valuable piece of property belonged to the plaintiffs, and not to the witness, in whose possession it was. Admitting that the evidence in the case, including that from Fogg, tended to show that he had been actively engaged in a transaction with the defendants by which they had induced the plaintiffs to become parties to a composition deed, under circumstances which would authorize them, if so disposed, to avoid the same, the rights of one actually in possession of property, and claiming to be lawfully so, cannot be dealt with in this summary manner. He cannot be deprived of his possession without due process of law. A proceeding to which he is not a party, where he cannot call witnesses, and where he cannot have a trial of his asserted rights, by jury or other regular adjudication, does not properly protect them. Bull v. Loveland, 10 Pick. 9. It would be most unjust to the holder of the note, if in advance of a decision between himself and the plaintiffs, he should be compelled to surrender the note, that the plaintiffs might make it the foundation of an action, recover upon it, and file it in their suit; thus rendering it unavailable for him as the foundation of an action for the whole or any part which might be due thereon to him, or as a voucher in his dealings with the defendants, and en |