warehouse. There they remained until March 20, 1883, when they were destroyed by an accidental fire. L'Anse was the terminus of railroad transportation. From thence to Hancock goods were carried in boat during the season of navigation, and by teams for the remainder of the year, by a carrier known as the L'Anse & Houghton Overland Transportation Company, which occupied for its purposes at L'Anse the warehouse of the defendant. It seems to have been the customary mode of business for the receipts of goods to be entered at the warehouse upon books of the defendant, which were open to inspection by the L'Anse & Houghton Overland Transportation Company, and which were regularly inspected by the agent of that company to ascertain what goods were to be taken by it. That company was then accustomed to take the goods for Hancock and other places on its line, load them in sleighs or other vehicles at the warehouse, and then receipt them to the defendant. When the goods of the plaintiff were received by defendant no notice was given to him, nor was the attention of the agent of the transportation company called to them, or any request made that they should be removed. They simply remained in the warehouse, without action by any one in respect to them, until the fire took place. The goods having been destroyed, plaintiff claimed from the defendant payment of the value, and that being declined, the present suit was instituted.

The first count of the declaration charged the defendant as common carrier with the duty to carry the goods over its line to L'Anse, aud there deliver them to the L'Anse & Houghton Overland Transportation Company, and the breach of the duty alleged was the failure to deliver to that company. The trial judge instructed the jury that if the goods were shipped from New York, consigned to or marked for the plaintiff at Hancock, Michigan, and came into the hands of the defendant from the Chicago & Northwestern Railway Company to be carried by defendant in the usual course of its business to L'Anse, there to be delivered to the L'Anse & Houghton Overland Transportation Company for transportation to Hancock, then the defendant received such goods as a common carrier, and remained such common carrier during the transportation of the goods to L'Anse, and after their arrival there for such reasonable time as according to the usual course of business with the L'Anse & Houghton Transportation Company would enable defendant to deliver the goods to that company; and no delay in taking goods on the part of the transportation company, incident to the usual course of business between the two companies, would exonerate the defendant from its liability as a common carrier. It would be the duty of the defendant to deliver or offer to deliver the goods to the L'Anse & Houghton Transportation Company to be transported to Hancock; and if the goods were not so delivered or offered to be delivered, plaintiff was entitled to recover. Under this instruction the plaintiff had judgment, and the defendant brings error.

The question which the instruction presents is one upon which the authorities are somewhat divided. It received careful attention at the hands of the New York Court of Appeals in McDonald v. Western Railroad Corporation, 34 N. Y. 497, where several opinions were delivered. The facts upon which the decision was to be made were in all respects similar to those now before us, and the judges were unanimous in holding that the railroad company was liable. Wright, J., said: "The goods had been received by the defendants at Chatham, to be transferred to Binghamton by way of the Erie & Chenango canal. Their obligation therefore was to carry the goods safely to the end of their road and deliver them to the next carrier

on the route beyond. A carrier in such case does not release himself from liability by simply unloading the goods at the end of his route and placing them in his own storehouse, without delivery or notice to, or any attempt to deliver to the next carrier."

HUNT, J., in a concurring opinion, referring to Ladue v. Griffith, 25 N. Y. 364, as a somewhat similar case, said: "The defendants in the present case did no act indicating that they had renounced the liability of a carrier. They simply unloaded and deposited the goods in their warehouse. Had this deposit been made in the warehouse of a company engaged in canal transportation westwardly, it would have been an act of great significance. But here the fact is expressly found that it was the custom of the further carrier to take the goods from the defendants' depot. The liability of the further carrier did not commence until he removed the goods from the defendants' warehouse. The deposit therefore by the defendants in their own warehouse did not afford any evidence of a renunciation of the carrier's liability." And he added that the deposit of the goods in the warehouse was to be considered a mere accessory to the carriage by defendant, and that their liability as carrier was therefore unbroken.

This decision was approved as sound and followed as authority in Mills v. Michigan Cent. R. Co., 45 N. Y. 622, and it is undoubtedly the settled law of New New York at this time. The same doctrine was laid down in Conkey v. Milwaukee, etc., R. Co., 31 Wis. 619, in a forcible opinion by Chief Justice Dixon, and also in Irish v. Milwaukee, etc., R. Co., 19 Minn. 376 (Gil. 323); S. C., 18 Am. Rep. 340, which cites with approval the case in 34 N. Y. The like doctrine also appears to be recognized in Erie R. Co. v. Lockwood, 28 Ohio St. 358; Brintnall v. Saratoga, etc., R. Co., 32 Vt. 665; Packard v. Taylor, 35 Ark. 402; and Louisville, etc., R. Co. v. Campbell, 7 Heisk. 253. It was also affirmed in Michigan Cent. R. Co. v. Manufacturing Co., 16 Wall. 318. This last case expresses views not in harmony with the opinion of the court respecting a certain clause in the charter of the Michigan Central Railroad Company as expressed in Michigan Cent. R. Co. v. Hale, 6 Mich. 343, and Same Company v. Lantz, 32 Mich. 502; yet as the question now under consideration was considered and decided by the court upon common-law principles, the conflict of views on the question of construction is of no importance in this case.

We think these cases lay down a rule which is just to the shippers of goods, and not unreasonably burdensome to carriers. The shipper delivers his goods to a carrier, who becomes insurer for their safe transportation; and if the operations of one carrier cover a part only of the line of transit, and another is to receive the goods from him, the shipper has a right to understand that the liability of an insurer is upon some one during the whole period. The duty of the one is not discharged until it has been imposed upon the succeeding carrier, and this is not done until there is delivery of the goods, or at least such a notification to the succeeding carrier as according to the course of the business is equivalent to a tender of delivery. There is nothing in this which is burdensome to the carrier, for this is the customary method in which the business is done; and the rule only requires that the customary method shall be pursued without unreasonable delay or negligence.

The connecting carriers in this case appear to have established a custom of their own, under which actual delivery of the goods or notice to take them was dispensed with, and the one was to ascertain from the books of the other what goods were ready for reception and further carriage. This as between themselves, was well enough while it worked well; but it was an

arrangement to which the plaintiff was not a party, and the defendant could not, by means of it, relieve itself of any liability which duty to the plaintiff imposed. And it was clearly its duty to the plaintiff, as we think, to relieve itself of the responsibility of the goods remaining for an unreasonable time in its warehouse, and to do this it was necessary that the responsibility be transferred to the carrier next in line. But the mere permission to inspect its books and take whatever was ready for carriage would not do this; there should have been distinct notice which would apprise the other carrier that defendant expected the removal of the goods.

In this case there were no facts indicating a renunciation, as to these goods, of the liability of common carrier by the defendant, or that it was supposed by the agents of the defendant that that character had been exchanged for any other. If it ever was, it must have been at the moment the goods were received, for nothing took place afterward to change the relation of the defendant to the goods until the fire took place. But we are not ready to assent to the doctrine that a railroad company, as to goods transported by it, ceases to be carrier the moment the goods are received at its warehouse. We do not think that is the law, or that it ought to be.

The judgment should be affirmed.

Champlin and Sherwood, JJ., concurred.

CAMPBELL, J. In this case it is admitted by the undisputed facts that the property in question had been in defendant's warehouse for a longer time than was generally necessary for the removal of goods by the ultimate carrier, aud that the failure was due to a lack of means of removal in the latter. It also appears that the property was in a warehouse from which the last carrier always took it without any further ceremony, and that this carrier was always informed by inspection of the way-bills and knew of the goods being ready for removal. I think that under such circumstances defendant no longer remained responsible as carrier, but became subject to no more than a warehouseman's responsibility as soon as the last carrier had actual notice and could have removed them, and that respondent is not to be prejudiced by the lack of facilities in that carrier, who had the same means of access to and control over the goods. Such seems to me the purpose of our statute, which does not declare or provide that the liability of warehousemen for goods awaiting delivery shall not arise when the real duties of carrier have been fulfilled, but merely requires that the responsibilities attaching to a carrier shall not be lessened while that relation exists.

[See 68 Ill. 471; 44 N. Y. 507-8; 2 Am. Rep. 130, 242, 391; 21 Eng. Rep. 68; 63 Ala. 219.

NEW YORK COURT OF APPEALS ABSTRACT.

FALSE

PLEADING-MALICIOUS PROSECUTION AND IMPRISONMENT MAY BE JOINED-ORDER OF ARRESTFALSE IMPRISONMENT DOES NOT LIE-MALICIOUS PROS

ECUTION-PROBABLE CAUSE.-(1) The complaint alleges two causes of action, to wit, one for malicious prosecution and another for false imprisonment. As they are both for personal injuries they could be contained in the same complaint. Code, § 484. They are consistent with each other, and the one is not destructive of the other, and it has been common practice to unite them. Doyle v. Russell, 30 Barb. 300; Barr v. Shaw, 10 Hun, 580; Dusenbury v. Keily, 85 N. Y. 383, 389; Carl v. Ayers, 53 id. 14; Bradner v. Falkner, 93 id. 515. But as the objection to the joinder was not taken in the answer or by demurrer, it was in any event

waived. Code, § 499. The gist of the action was the procuring of an order of arrest by defendants under the Stillwell Act. The facts stated in the affidavit, upon which the warrant was granted, were sufficient to give the judge who issued it jurisdiction. It was subsequently set aside by said judge, upon affidavits showing that plaintiff had previously been arrested in an action brought against him by defendants, upon an order of arrest issued for the same cause, and substantially upon the same grounds. In an action for false imprisonment, held, that the warrant was not void or irregular, but at most simply erroneous, and so that the action was not maintainable. The remedy of the party unjustly arrested or imprisoned is by the recovery of costs which may be awarded to him, or the redress which some statute may give him, or by an action for malicious prosecution, in case the prosecution against him has been from unworthy motives and without probable cause. Even malicious motives and the absence of probable cause do not give a party arrested an action for false imprisonment. They may aggravate his damage, but have nothing whatever to do with the cause of action. Hence if in this case the defendants had intentionally withheld from the judge who granted the warrant the fact of the plaintiff's prior arrest, that fact would have been quite pertinent to maintain an action for malicious prosecution, but would not have laid the foundation for a recovery in an action for false imprisonment. We have carefully examined many authorities, and have not found one which decides that in a case like this an action for false imprisonment can be maintained. They all sustain the views above expressed. Williams v. Smith, 14 C. B. (N. S.) 596; Hayden v. Shed, 11 Mass. 500; Reynolds v. Corp, 3 Caines, 268; McGuinty v. Herrick, 5 Wend. 240; Chapman v. Dyett, 11 id. 31; Deyo v. Vau Valkenburgh, 5 Hill, 242; Landt v. Hilts, 19 Barb. 283; Simpson v. Hornbeck, 3 Lans. 53; Miller v. Adams 7 id. 131; affirmed, 52 N. Y. 409; Palmer v. Foley, 71 id. 106; Dusenbury v. Keiley, 85 id. 383; Day v. Bach, 87 id. 56. In Williams v. Smith, Williams, J., said: The party causing process to be issued is not responsible for any thing that is done under it when the process is afterward set aside, not for irregularity, but for error." And Byles, J., said: "There is a manifest distinction between setting aside process for irregularity and reversing a proceeding for error on appeal. In the one case a man acts irregularly and independently, without the sanction of any court. He therefore takes the consequences of his own unauthorized act. But when he relies upon the judgment of a competent court, however erroneous that judgment may be, the party acting upon the faith of it ought to be protected." (2) Plaintiff was properly nonsuited, as to the cause of action for malicious prosecution. The burden of showing want of probable cause for his arrest was upon him, and he gave no evidence whatever upon that subject. Not only this, upon his objection, evidence on the part of the defendants to show probable cause was excluded. Marks v. Townsend. Opinion by Earl, J. [As to (1) see 88 N. Y. 270; 18 W. Dig. 108; 16 id. 240; 2 Civ. P. R. 217, contra, 61 How. 353.] [Decided Jan. 20, 1885.]

STATUTE OF FRAUDS-PAROL AGREEMENT PARTLY PERFORMED.-Plaintiff was lessee of a store for the term of five years, at an annual reut, payable quar terly; he owned or controlled a one-half interest in the stock of goods in the store; the defendant at the same time was the owner of a paper mill in that city; and it was agreed that the defendant should sell to the plaintiff the mill and its machinery, and receive in payment therefore certain notes and mortgages, the half interest in the stock of goods, and as the

plaintiff's testimony tends to show, the possession of the store for the unexpired term (then about fourteen months), and the defendant on his part agreed to pay the rent to the lessors for that term. This term of the agreement is denied by the defendant. It is however uncontroverted that the defendant, on the same day, was placed in possession of the store and goods by the plaintiff; that he carried on business there until the 25th of May following, and paid the lessors rent up to that time when he sold out, and making no further payment, this action is brought to recover the sums unpaid. Held, that the agreement was not within the statute of frauds and that plaintiff was entitled to reCover. The appellant puts his appeal upon the statute of frauds. We think it has no application, and that the case was properly submitted to the jury. If as they have found, the plaintiff's version of the transaction was the true one, the defendant's promise to pay the rent was upon a new consideration, which moved directly to him, and it was made for his own benefit, and not for the benefit of the plaintiff. The general object and purpose of the transaction, or the "res gesta" as it is termed in Williams v. Leper, 3 Burr. 1886, shows that the intention of the parties was not that the defendant should become responsible for the payment of the plaintiff's debt to the lessors, but that he could assume, as a new and independent duty, that of paying to the landlord the rent specified in the lease. This obligation was part of an undivided transaction and stands upon the whole as a consideration. It comes therefore within the principle under which it has been often decided, that the purchaser is bound by his promise to pay the price to a creditor of the vendor, although it is not in writing and the vendor remains bound. Leonard v. Vredenburg, 8 Johns. 29; Barker v. Bucklin, 2 Den. 45; Mallory v. Gillett, 21 N. Y. 412. It is also apparent that there was a complete performance by the plaintiff, and an acceptance of that performance by the defendant. The plaintiff received from the defendant the mill property, and turned out to him the mortgages, notes and money, stock of goods and possession of the store, and these things the defendant received and retained according to his pleasure. Every thing has been performed except his promise to pay the rent in question. The judgment in this case calls for nothing more, and justice requires that it should be paid. Kohler v. Matlage, 72 N. Y. 259. It would be a perversion of the true purpose of the statute to give it such construction as would protect the defendant in the enjoyment of advantages obtained from the plaintiff in reliance upon an oral agreement on which the latter acted. If the plaintiff had refused to put the defendant in possession, he could have rescinded the contract; if he interfered with his possession, he could sue for damages (Gray v. Hill, Ryan & Moody, 420): if for his security an assignment in writing of the lease was necessary, or a written contract for the possession, a court of equity would have compelled its execution; but neither of these things is asserted. The case is within the established rule that a parol agreement in part performed is not within the provisions of the statute. Stuart v. Stuart. Opinion by Danforth, J. [Decided Jan., 1885.]

UNITED STATES SUPREME COURT ABSTRACT.

NATIONAL BANK-PENALTIES FOR TAKING USURY.Where in an action brought in the District of Columbia by the executors of N. C., deceased, against C., as indorser upon a note dated May 29, 1873, made by J. D. for the payment to C. of $4,000, three years after

date, with interest at the rate of eight per cent per annum, the defendant, besides pleading the general issue, pleaded that the plaintiff ought not to recover $992 of the amount of the note sued on, with the interest on said sum, because N. C., the testator, after becoming the owner of the note, made, on February 4, 1876, a verbal agreement with D., the maker, by which he contracted to receive from D. interest at the rate of ten per cent per annum, payable quarterly, upon the full amount of principal and interest due on the note at its maturity, to wit, $4,960, and in pursuance of such agreement did, between February 4, 1876, and January 1, 1878, receive as illegal interest eight payments of $124 each, amounting to $992, the court instructed the jury that the only remedy for the recovery of money paid for interest in excess of the interest allowed by law, is suit brought under section 716 of the Revised Statutes of the District of Columbia within one year, and that the prohibition contained in section 715 of the Revised Statutes of the District of Columbia applies exclusively to cases in which illegal interest has been contracted for, but not paid. Held, that the instruction was correct. In Farmers' etc., Nat. Bank v. Dearing, 91 U. S. 29, the court declared that the penalty imposed on a national bank for taking a greater rate of interest than that allowed by the National Banking Act, was the loss of the entire interest, and that no loss of the entire debt was incurred by the bank as a penalty by reason of the provisions of the usury law of a State. So in Barnet v. National Bank, 98 U. S. 555, it was held that in a suit by a national bank against the parties to a bill of exchange discounted by it, the assignees of the acceptor could not, having intervened as parties, set up by way of counterclaim or set-off that the bank knowingly took and was paid a greater rate of interest thereon than that allowed by law, but that the National Banking Act having prescribed as a penalty for the taking of such unlawful interest that the person paying the same might, in an action of debt against the bank, recover back twice the amount so paid, he could have redress in no other form or mode of procedure. So in Driesbach v. National Bank, 104 U. S. 52, it was held that usurious interest paid to a National bank on renewing a series of notes, of which those in suit were the last, could not be applied in satisfaction of the principal of the debt. See also Cook v. Lillo, 103 U. S. 792, and Walsh v. Mayer, 111 id. 31. In the case last cited it was held generally that a statute which prescribes a legal rate of interest, and forbids the taking of a higher rate, under penalty of a forfeiture of the entire interest, and declares that the party paying such higher rate of interest may recover it back by suit brought within twelve months, confers no authority to apply the usurious interest actually paid to the discharge of the principal debt, and that a suit for its recovery brought within twelve months was the exclusive remedy. There was therefore no error in the refusal of the court to charge as requested or in the charge given. Carter v. Carusi. Opinion by Woods, J. [Decided Dec. 15, 1884.]

STATUTE CHINESE IMMIGRATION.- The fourth section of the act of Congress approved May 6, 1882, ch. 126, as amended by the act of July 5, 1884, ch. 120, prescribing the certificate which shall be produced by a Chinese laborer as the "only evidence permissible to establish his rights of reentry into the United States, is not applicable to Chinese laborers, who residing in this country at the date of the treaty of November 17, 1880, departed by sea before May 6, 1882, and remained out of the United States until after July 5, 1884. The rule is well settled that repeals by implication are not favored, and are never admitted where the former can stand with the

Child, Davies (2 Ware), 78; The Larch, 3 Ware, 28. Third. It hardly need be added the appointment of a receiver in this case is a mere incident of the sale, and hence of course something of which a court of admiralty would have no jurisdiction, in the absence of jurisdiction to order the sale itself. From these three propositions it follows that the subject-matter of the present action - the remedies sought and afforded in it-do not fall within the purview or scope of civil causes in cases in admiralty and maritime jurisdiction. Swain v. Knapp. Opinion by Berry, J.

[Decided Nov. 25, 1884.]

NEGLIGENCE-SUBMISSION OF QUESTION TO JURYEVIDENCE-FAILURE TO RING BELL.-In an action to recover damages for injuries from a collision at a railway crossing with the wagon in which plaintiff was riding, her evidence tended to show that the team was driven with care, and that plaintiff and the driver were watching the road, and looking and listening for indications of danger as they approached the crossing: that they heard no signal, and had no warning of the approach of an engine from the west, but were unexpectedly overtaken by a switch engine from that direction, running backward down grade at a high rate of speed, with steam shut off, and without signals of its approach, which they did not discover till too late to avoid a collision. They were going east, the railroad being on their left, and approaching the street at a sharp angle, and above there was a cut which partially obscured the vision, terminating about 200 feet from the crossing. The evidence also shows that they had previously looked several times up the road in that direction, the last time when at a point from 50 to 70 feet from the crossing, and in the interval of about 10 seconds they were listening for signals or indications of a coming train, their attention being also arrested by the presence of another switch engine standing below the crossing apparently ready to move. Held, that whether the plaintiff was in the exercise of that degree of care which persons of ordinary prudence and intelligence would exercise in a similar situation depends upon the consideration of a variety of circumstances and inferences of fact which were proper for the judgment of a jury. And for substantially the same reasons that controlled the decision of this court in Loucks v. Railroad Co., 31 Minn. 530, we think this case was properly submitted to the jury. French v. Railroad, 116 Mass. 540; Chaffee v. Railroad Corp. 104 id. 116: Stackus v. Railroad Co., 79 N. Y. 467; Ochsenbein v. Shapley, 85 id. 224; Baldwin v. Railroad Co., 18 N. W. Rep. 884; Butler v. Railroad Co., 28 Wis. 504; Gaynor v. Railway Co., 100 Mass. 212. Exceptions were taken by defendant's counsel to certain instructions given by the court, to the effect that the failure to ring the bell or sound the whistle, and to keep a lookout for the crossings, if so the jury found the fact to be, was evidence of negligence, as it also was to run the engine at a dangerous rate of speed. Under the circumstances these exceptions were properly overruled, both because such evidence was proper to establish defendant's negligence, and also as bearing upon the question of plaintiff's conduct in the premises. Plaintiff in the discharge of her own duty to proceed with caution, and exercise due diligence to avoid danger, was, as we have before observed, entitled at the same time to expect the exercise of like reasonable care, and not culpable negligence, on the part of the defendant. Loucks v. Railroad Co., supra; Continental Co. v. Stead, 95 U. S. 161: Gaynor v. Railroad Co., 100 Mass. 213; Wylde v. Railroad Co., 53 N. Y. 161: Eppendorf v. Railroad Co., 69 id. 197; Owen v. Railroad Co., 35 id. 518; Shear. & R. Neg., § 31. Hutchinson v. St. Paul, etc., R. Co. Opinion by Vandenburgh, J.

[Decided Oct. 13, 1884.]

CORRESPONDENCE.

DENIALS ON INFORMATION AND BELIEF.

Editor of the Albany Law Journal:

The communication of "H." (31 A. L. J. 159) suggests the remark that the language of the old Code as to the contents of an answer is the same as that of the new. They both say that the answer must contain a denial of the controverted allegations or (a denial) of any knowledge or information thereof sufficient to form a belief (of such allegations). The answer has nothing to do with such knowledge or information as may be sufficient to form a disbelief. It follows that denials and belief are superfluous, denials of knowledge or information being what are demanded. Where the answer denies any knowledge or information of a fact alleged sufficient to form a belief of it, such fact is not admitted and the plaintiff is put to his proof, and that conforms to the old chancery practice, and is all that the Code requires or intends. Respectfully,

NEW YORK, April 7, 1885.

B. W. HUNTINGTON.

PROVING WILLS IN TESTATOR'S LIFE-TIME. Editor of the Albany Law Journal:

In view of the discussion lately carried on in the newspapers and Legislature of New York about a proposed law for establishing wills during the life-time of testators, there may be some interest for your readers in a decision just rendered by the Supreme Court of this State, declaring inoperative the Michigan statute relating to that subject. Public Acts, 1883, p. 17.

In opinions by Judges Cooley and Campbell, the law is criticised as making no sufficient provision for its own enforcement, without conflict with other statutes not meant to be repealed. This first attempt in our jurisprudence to compel a living person, as a condition of relief, to enter upon a contest with those who until his death can have no recognition anywhere, and who after his death are presumed to represent him and not any hostile interest, is said to remove none of the difficulties aimed at, but rather to make them worse. It is not conceived possible that a proceeding can be dealt with as judicial, when the chief party to it will not be precluded by the decree from doing exactly as he might have done had the court never been called on to act at all. The result is that the courts cannot be called on to administer the law.

While it was to be expected that this new and singular statute might be faulty, the learned judges point out difficulties more radical than have before been publicly suggested; and it may well be doubted if the law will ever recognize that new anomaly-what shall we call it a living testator with will annexed? Yours truly,

JAMES C. SMITH, JR. DETROIT, MICH., April 11, 1885.

THE INTEREST QUESTION. Editor of the Albany Law Journal:

If "Inquirer" will consult the statutes of the computation of time, and of the interest of money, he will find a complete answer to his "interesting inquiry "in to-day's issue. By the first statute (1 R. S. 606) time shall be computed in this State by the Gregorian or new style. By that style years vary in length from 365 to 366 days, and the years are divided into twelve calendar months which vary in length from 28 to 31 days. Consequently from any day of one month to the corresponding day of the following or of any succeeding month is one, two, or more calendar months. And in the case supposed from October 28 or any later day in the same month to February 28 (not bissextile)