ilar dealings with coal, to be against public policy. And we think the reasoning of those cases is based on familiar common-law principles, which apply more strongly to provisions than to any other articles. be handled, and where the only intent is to produce unnatural fluctuations in prices, is entirely outside the limits of buying and selling for honest trade purposes. It is the plainest and worst kind of produce gambling, and it is impossible for any but dangerous results to come from it. We do not feel called upon to regard so much of the common law to be obsolete as treats these combinations as unlawful, whether they should now be held punishable as crimes or not. The statute of New York, which is universally conceded to be a limitation of common-law offenses, is referred to in the case in 68 N. Y. as rendering such conspiracies unlawful, and this had been previously held in People v. Fisher, 14 Wend. 9, where the subject is discussed at length. There may be difficulties in determining conduct as in violation of public policy, where it has not before been covered by statutes as precedents. But in the case before us the conduct of the parties comes within the undisputed censure of the law of the land, and we cannot serve the transaction without doing so on the ground that such dealings are so manifestly sanctioned by usage and public approval that it would be absurd to suppose the Legislature, if attention were called to them, would not legalize them. We do not think There is no doubt that modern ideas of trade have practically abrogated some common-law doctrines which are supposed to unduly hamper commerce. At the common law there is no doubt such transactions as were here contemplated, although confined to a single person, were indictable misdemeanors under the law applicable to forestalling and engrossing. Some of our States have abolished the old statutes which were adopted on this subject, and which were sometimes regarded as embodying the whole law of such cases. Where this has been done, as in New York, the statutes have replaced them by restraints on combinations for that purpose, leaving individual action free. In England there have been several statutes narrowing or repealing all of the ancient statutes, and more recently covering the whole ground. But so long as the early statutes only were repealed, it was considered that enough remained of the common law to furnish combinations to enhance the value of commodities. And when this doctrine became narrowed it seems to have been considered that such combina-public opinion has become so thoroughly demoralized; tions to enhance the price of provisions remained under the ban. In Rex v. Waddington, 1 East, 143; S. C., 1 East, 167, it was held the common law was still in force to punish engrossing the necessaries of life or provisions by single persons. The chief difficulty was in determining whether hops came within that rule, and it was held they did, and that the Legislature only could change the law. The defendant was heavily fined. That case has been sharply criticised as not in harmony with modern political economy, and it no doubt goes beyond what would be considered proper among us. It has never, so far as the researches of Mr. Bishop have gone and he seldom overlooked important cases -- been judicially disproved, although statutes have been made to change the rule. See 1 Bish. Cr. L., $$ 527, 528, and notes to 6th ed. And he intimates that conspiracies for such purposes may perhaps be punished, even where the individual offense has been abolished. See, also, vol. 2, §§ 202, 206, 216, 220, 230, 231 and notes. In Rex v. Hilhers, 2 Chitty, 163, it was held that there must be a combination of more than one person before an information will be granted for enhancing the price of necessaries. Mr. Russell gives it as his opinion that in our day single offenders would not be regarded as punishable unless their offense relates to provisions. 1 Russ. 170. But where there is a conspiracy the law has been given a much wider application, and the case of Rex v. De Berenger, 3 M. & S. 67, has obtained celebrity from the high rank of the offenders who were convicted (and one of them at least, Lord Cochrane, unjustly) of conspiring to raise the price of stocks by false rumors. We have not referred to these cases to assert the propriety of enforcing common-law criminal penalties contrary to the general understanding of the business community. While these offenses have never been abolished in this State by statute, and might theoretically be, therefore, within the possible range of our laws, there would be no toleration of their strict prosecution against single persons to the common-law extent as crimes. But the general sentiment has not led to any change in legislation as to the legal propriety of allowing every species of produce gambling to be made susceptible of enforcement by contract. We must willfully shut our eyes before we can fail to see that a combination between a man who furnishes money and dealers who manipulate the market where the money invested is but a trifling percentage of the property to and until the law is changed we shall decline enforcing such contracts. If parties see fit to invest money in such ventures they must get it back by other than legal measures. Judgment must be reversed with costs and a new trial granted. ASSIGNMENT OF BANK STOCK NOT TRANS- U.S. CIRCUIT COURT, MASSACHUSETTS, MAY 21, 1881. CONTINENTAL NATIONAL BANK V. ELIOT NATIONAL The by-laws of a National bank provided that its stock should ACTION in equity to compel a transfer of bank stock by bank, or for damages. The facts appear in the opinion. W. C. Loring and J. C. Gray, for complainant. LOWELL, C. J. R. B. Conant was the cashier of the Eliot National Bank, of Boston, and owned 158 shares of its capital stock. Each of his certificates contained these words: "Transferable only on the books of the bank by the said Conant, or his attorney, on the surrender of this certificate." The Continental National Bank, of New York, was the regular correspondent of the Eliot Bank. In April and May, 1877, Conant borrowed $9,500 of the Continental Bank, in two sums of $5,000 and $4,500, and sent them as collateral security certificates for 95 shares of stock of the Eliot National Bank, with a power of attorney to transfer them upon the books, but they were not so transferred. The bylaws of the bank provide that the stock shall be assignable only on the books; that when stock is transferred the certificate shall be returned to the bank and cancelled, and a new certificate issued. In July, 1878, Conant confessed to the directors of the Eliot Bank that he had embezzled the funds of the bank to the amount of about $70,000. They required THE ALBANY LAW JOURNAL. him to resign his position as cashier, which he did, and he has since been convicted, and is now serving a sentence of imprisonment for his fraud. The Eliot Bank attached his shares in an action which is still pending in the Superior Court for Suffolk county. Afterward the Continental Bank sent to the Eliot Bank the certificates and powers of attorney, and demanded a transfer and new certificate, which was refused. This bill is filed to require the transfer to be made, or for damages, or other relief. Conant is made a defendant and the bill as against him has been taken pro confesso. The officer is likewise a defendant, but it is admitted that no decree can be made against him. The only question of fact in dispute is whether the Eliot Bank, before attaching the shares, had notice that they had been pledged, or mortgaged, to the complainants. Conant testifies that at the meeting of the directors at which he confessed his misdoings, he was asked what assets he had, and mentioned certain shares of mining stock, and other things; and that the president asked about these bank shares, and was informed of the fact that they were pledged to the New York banks for their face value. Conant, soon after leaving the directors' room, consulted Mr. Morse, an attorney of this court, who went at once and saw the directors before they had left the bank; and he testifies that he was told there by some one or more of them that this stock was pledged. On the other hand, none of the directors remember such a conversation; and some of them are confident that none such can have occurred. If it occurred, it is admitted that the attachment could not hold because the attaching creditor had notice of the transfer. Black v. Zacharie, 3 How. 483. I am inclined to think that the affirmative evidence must prevail in this case; but there is so much doubt in my own mind, that I have thought best to examine the disputed question of law, whether the attachment would take precedence if made without notice to the attaching creditor of the unrecorded transfer. The arguments have been very thorough on both sides, and a great many cases have been cited. It has been very ably urged that by the law of Massachusetts the attachment would have the preference. This I consider doubtful; but the decision does not depend upon the law of Massachusetts. 1. It is not important to consider whether the contract was consummated in Massachusetts or in New York. The negotiability or transferable quality of the stock of a National bank depends upon the laws of Dickinson v. Central National the United States. Bank, 129 Mass. 279. In Merchants' Bank v. State Bank, 10 Wall. 604, the admitted law and usage of Massachusetts, where both the National banks were situated, and where the transaction took place, were wholly disregarded by the majority of the Supreme Court. The negotiability of foreign scrip in England is not governed by the law of England, but by the law of the foreign country, which may be proved by the general usage of brokers and others dealing with such scrip. The time and Goodwin v. Robarts, 1 App. Cas. 476. mode of attaching property, and its effect in general, are part of the law of the forum; but its operation upon unrecorded transfers of shares in National banks is regulated by the law which creates the shares and provides for their conveyance and registration. That law is section 5139, Revised Statutes, which provides that shares may be transferred on the books of the association in such manner as may be prescribed by the by-laws or articles of association. Such a law, in Massachusetts, might possibly mean that creditors could attach the shares as the property of the recorded owner. Blanchard v. Deedham Gas-light Co., 12 Gray, 213. I have already said that I doubt if this is now the law of Massachusetts, and I shall return to the subject presently; but that law favors attachments in certain classes of cases to an unusual extent. 2. It is a general rule that creditors, whether they It has been the law of the lord mayor's court in London, from the time of Richard I, that an equitable assignment of a chose in action should prevail against an attachment. Wesloby v. Day, 2 E. & B. 605. This application of the rule obtains in Massachusetts, and in the United States generally, though a few courts Drake on Attachments, ch. 24; hold otherwise. Thayer v. Daniels, 113 Mass. 129, and cases cited. 3. The incorporeal property of the shareholder in a In many of the foregoing cases there were laws providing for the transfer of shares upon the books of the company. But the courts held that this registration was intended chiefly for the convenience of the company, to enable it to know who should have dividends No doubt it is sometimes inand who should vote. tended as a record of persons liable for the debts of the company, and is so in the case of National banks; but the great weight of authority is that it is not intended for the benefit of creditors of the individual shareholders. Some of the courts hold that the unrecorded transfer passes only an equitable title; others, that it gives a legal title. I assume that by the decisions in the courts of the United States only an equitable title is acquired. That point is unimportant. 4. The statutes of many, perhaps of most, of the States, provide that certain conveyances of land and of chattels shall be recorded, and that until record is made a conveyance shall have no effect excepting between the parties, and in most cases those having actual notice. An attaching or seizing creditor, without notice of a prior conveyance, is undoubtedly within the words of these statutes; and so such creditors have come to be treated, and even spoken of, as in some sort purchasers. A few of the statutes requiring registration of the shares of companies' follow the exact language of these registry laws, and declare that no unrecorded title shall be good, or only against persons having notice. In California, even, such a law is held not to avail creditors (Winter v. Belmont Co., 53 Cal. 428) but in Maine and Massachusetts, the decision, and perhaps the better one, is that such a law must be construed like other similar registry laws. Skowhegan Bank v. Cutler, 49 Me. 315; Rock v. Nichols, 3 Allen 342. It was in this state of things that the case which is the support of the defense here was decided. In Fisher v. Essex Bank, 5 Gray, 373, the charter of a bank incorporated in Massachusetts provided that the shares should be transferred only at the banking-house, and upon the books of the company, and the court held that an attaching creditor could hold against an earlier unrecorded transfer for value. I have studied this decision with care. It seeme to proceed upon the theory that by the charter, which is a public statute, there can be no such thing as an equitable transfer, or at any rate, none except by a sort of equitable estoppel between the parties, and that it was a part of the intent of the act that a creditor at law should have the legal right to attach the legal title. This decision has been followed in Illinois (People's Bank v. Gridley, 91 Ill. 457), but rejected in the other States, so far as their courts have passed upon it. It is sometimes spoken of as being the law of Connecticut and Vermont, but the early cases in the former State are much modified by Colt v. Ives, 31 Conn. 25. The case cited from Vermont (Rice v. Curtis, 32 Vt. 464) is not in point. It is opposed directly to many of the cases already cited under the third point, and to the general principle that attaching creditors are bound by all equities, including equitable estoppels. It has moreover been seriously modified, if not wholly overruled, in Massachusetts, in Dickinson v. Central Nat. Bank, 129 Mass. 279, printed, but not yet published. The Central National Bank had a by-law like that now in question, and A., the owner of ten of its shares, had transferred them by way of security, precisely as Conant transferred his shares, and afterward became bankrupt. The transferee, till later, sold the shares at public auction, under his power, after due notice to A. and to his assignee. The bank, notwithstanding a notice and de- | mand by the assignee in bankruptcy, transferred the shares to the purchaser. The assignee sued the bank for damages, but was defeated. Colt, J., delivering the opinion of the court, says that Fisher v. Essex Bank, ubi supra, does not apply, because in that case the charter had the force of a general law, but that a by-law has no such effect (citing Sargent v. Essex Marine R. Co., 9 Pick. 201), and that in the absence of such a general law the transferee took an equitable title which should prevail against the assignee in bankruptcy of the transferrer. The only circumstances in Fisher v. Essex Bank, not found in Dickinson v. Central Bank, are these: (1) The law in the former case contained the word "only"-that the shares should be 'transferred only so and so; (2) that an attaching creditor and not an assignee in bankruptcy was concerned; (3) that the law governing the company was a Massachusetts law, which might be differently construed from a National banking act. The first and third points, of course, are the same in this case as in the later one in Massachusetts. The second is not sound in this court; an assignee and attaching cred itor stand precisely alike, according to the law which governs this controversy. 5. The doctrine of Dearle v. Hall, 3 Russ. 1, confirmed in Foster v. Cockrell, 3 Cl. & Fin. 466, is much relied on by the defendants. This doctrine is that of two innocent purchasers of merely equitable interests he shall be preferred who first gives notice to the trustee or holder of the legal title. To this there are several answers: 1. Though the corporation is for some purposes a trustee for the shareholders, the latter have an independent legal property in their shares which they can convey, and whether their actual conveyance is legal or equitable is of no consequence. 2. The doctrine applies in England only to purchasers, and not to creditors seizing or attaching, even though a statute gives a right to seize all shares standing in the debtor's name in his own right. This statute was once held by the Queen's Bench to mean that the creditor might seize what the register showed to be apparently the property of the debtor (Watts v. Porter, 3 E. & B. 743); but this has been overruled, on the ground that the Legislature cannot be supposed to have intended to take one man's property for another man's debt, without the most explicit statement of such a purpose; and therefore the "right" refers to the equitable as well as legal right. Dunster v. Lord Glengall, 3 Ir. Ch. 47; Scott v. Lord Hastings, 4 K. & J. 633; Beavan v. Earl of Oxford, 6 D. M. & G. 524; Eyre v. McDonald, 9 H. L. 619; Robinson v. Nesbitt, L. R., 3 C. P. 264; Pickering v. Ilfracombe Railway Co., id. 235; Gill v. Continental Gas Co., L. R., Ex. 619. A few courts in this country have carried the doctrine of Dearle v. Hall so far as to uphold the garnishment of a non-negotiable debt which had been equitably assigned without notice. We have already seen that this is not the law in England nor in Massachusetts. Neither is it the law of the United States generally. Drake on Attachments, ch. 24; Cornick v. Richards, 3 Lea. 1. The Supreme Court of Tennessee in that case refused to extend the rule to shares of stock, though it applies in that State to choses in action. As shares are not choses in action, and as attaching creditors are not purchasers. Dearle v. Hall is not in point. 6. It remains only to cite two decisions of the Supreme Court, which, in principle, are decisive of this case. In Bank v. Danier, 11 Wall. 369, a National bank was required to make good to the holder of an unrecorded certificate the value of his shares, although they had been transferred on the books to a subsequent purchaser for value. That purchaser, to be sure, was not before the court, but if his title was better than that of the plaintiff, the bank was justified in transferring the shares and would have had a perfect defense. Dickinson v. Central Nat. Bank, 129 Mass. 279; Gill v. Continental Gas Co., L. R., 7 Ex. 232. If a purchaser for value could not hold against the holder of the unrecorded certificate, a fortiori of an attaching creditor. Bullard v. The Bank, 18 Wall. 589, is in the same line of thought. It decides that certificates of shares in National banks are so far negotiable, or quasi negotiable, that a by-law of the bank, which undertakes to make them subject to the debt of the transferrer to the bank itself, is void. On the same ground it was held that a by-law like that of the Eliot National Bank, if intended to give attaching creditors a better title than transferees who had not recorded their certificates, was void. Sargent v. Marine Ry. Co., 9 Pick. 201. Here, again, the argument is a fortiori. If the bank cannot create a lien by its by-law, much less can it obtain one indirectly, by attachment, upon the construction of an ambiguous by-law. My conclusion is that the attachment of Conant's shares cannot preval against the complainants' earlier title, whether that is equitable or legal. There is no conflict of jurisdiction, because no State court or officer has taken possession of any thing. The question is merely one of title. A bill in equity will lie, because the complainant company has, or might have, a right to require the shares to be transferred to it. As values are at present, it would be more just to enter a decree for the debt due the complainants, and interest, which would leave a considerable value for the defendant bank if the present market price holds. I understood counsel to say that the precise form of the decree could probably be agreed on. Decree for the complainant. Where an assignment of securities is made by a principal to a surety, for indemnity merely, an implied trust is raised in favor of the creditor which he may enforce, whether the surety is damnified or not. Accordingly, when the guardian of an infant to secure the surety on the guardian's bond from loss, executed to him a mortgage, held, that the infant was entitled to have the mortgage stand as security for what was due from her guardian, and to foreclose the same. A mortgage was defectively executed, being witnessed by a THIS THIS cause was heard at the February Term, 1880, Orleans county, Redfield, Chancellor, on bill, answer, traverse, amended bill, traverse, and testimony. The chancellor stated, and decreed as follows: "The oratrix seeks alternative relief, upon grounds entirely distinct. I think the oratrix might in equity have the benefit of the Bates mortgage, if it was properly executed; but it seems to me defectively executed; not entitled to registry; and not constructive notice to attaching creditors. In the somewhat peculiar condition of the case, if the oratrix has relief it would probably require the services of a master, and thus enhance the expense. In the interest of economy and progress, the bill is dismissed with costs, pro forma." The petition set out that the defendant Morrill was appointed guardian of the oratrix, who was then a minor, in 1863; that said Bates signed his guardianship bond; that she became of full age in 1875; that said Morrill rendered his account in 1877, and there was due the oratrix $3,367.24, which the Probate Court ordered to be paid to oratrix; that he had paid no part of it; that he was insolvent; that on the 19th day of February, 1875, said Morrill executed a mortgage deed of certain lands to said Bates, conditioned for the payment of one note, dated February 19, 1875, and given for 86,500, payable on demand; that said mortgage deed in reality was given to said Bates to secure him from all costs, damages and expenses, by reason of signing said guardianship boud; that it was given for no other reason; that said Bates deceased in 1876; that Caroline C. Bates was appointed his executrix; hat the estate of said Bates was insolvent; that after * To appear in 53 Vermont Reports. said mortgage was so given, said Blake attached said The defendant bank answered, claiming that the L. H. Thompson, for oratrix. John Young and Crane & Alford, for defendant. POWERS, J. The ability to testify is the test of competency required of witnesses, called to attest the execution of deeds and other written instruments. If the person called would be an incompetent witness to prove the fact of execution, such person is not a proper attesting witness. And competency to testify must exist at the time of attestation. This has been the well settled rule ever since the decision of Holdfast v. Dousing, 2 Strange, 1253. That was the case of a will executed in the presence of a witness, incompetent to testify by reason of interest. Chief Justice Lee, in delivering the resolution of the court said, "The true time for his competency is the time of attestation, otherwise a subsequent infamy, which the testator knows nothing of, would avoid his will." This rule 1 Greenl. Ev. has since been generally adhered to. (12th ed.), § 572; 2 Washb. Real Prop. As confirmatory of the rule, it is well settled that if a witness, competent at the time of attestation, becomes incompetent afterward, the instrument is nevertheless well executed. Jones v. Mason, 2 Strange, 833; Bernett v. Taylor, 9 Ves. 381. Our statute ($ 10, chap. 49, Gen. Stat.), declares that wills shall be probated, if the attesting witnesses were competent at the time of execution, although they afterward become disqualified. The mortgage deed, therefore, executed February 19, 1875, by John F. Morrill to Joseph Bates, witnessed by Mrs. Bates, the wife of the mortgagee therein, was defectively executed, and its record was not constructive notice to subsequent purchasers or attaching creditors. Day v. Adams, 42 Vt. 510. The evidence shows that both parties called Mrs. Bates to witness the deed, and some members of the court think this sufficient to estop the parties from See Honeywood v. questioning its due execution. Peacock, 3 Camp. 196. We do not, however, undertake to decide this question. But this mortgage deed although defectively executed, is a good equitable mortgage. It is proven beyond question that Bates sought its execution, as security against his liability on Morrill's guardianship bond, and that Morrill voluntarily executed it, solely to furnish such security. This intent being found, equity will effectuate it, and A mere agreetreat the deed as the parties intended. ment to give a mortgage is treated in equity as a mort gage, and no want of form will defeat the instrument as an equitable mortgage. Jones on Mort., §§ 163, 167; Jones on R. R., §§ 73, 122, Miller v. R. & W. R. R.Co., 36 Vt. 452. The true character of this mortgage may be shown, notwithstanding it purports to be given as security for a promissory note. It may be shown that it was given for indemnity only. Jones on Mort., § 384. The evidence shows that the manager of the Eastern Townships Bank examined the records in Derby to ascertain whether Morrill's real estate was incumbered, and found this Bates mortgage. He then learned the fict that a mortgage in favor of Bates for some purpose had been given by Morrill. We incline to think that this search for the records was before the bank put its attachment upon the land, though, whether before or after makes little difference in the case. The bank, having notice in fact of the deed is affected with notice of all equities that Bates had under the deed. If the bank in point of fact had no notice of the deed until after it made its attachment, still, notice received at any time before levy of its execution is sufficient to subordinate its rights to the superior equities of Bates. Hackett v. Callender, 32 Vt. 97; Hart v. Farmers and Mech. Bank, 33 id. 252. The effect of this notice to the bank is to limit its claim to the actual interest and title of its debtor. The bank is attempting to get security for an old debt; it has advanced no new consideration; it did not even make the attachment upon the theory that the Bates deed was defective and conveyed no title; for it then had no notice that the deed was defective. The equity of an innocent purchaser, who had paid his money for the land, would prevail over the equity of Bates. The purchaser from Morrill might get more as against Bates than his grantor had. The creditor of Morrill takes only the title of his debtor. Hackett v. Callender, supra; Hart v. Farmers, etc., Bank, supra; Mining Co. v. Bank, 44 Vt. 489. This mortgage being valid as between Morrill and Bates, can this oratrix, being the beneficiary under the boud, executed by Morrill and Bates, make it available as a security to her for the amount due from her guardian? The mortgage was executed to Bates as an indemnity only. In some States a distinction seems to have been drawn between cases, where the security is given for indemnity only, and where it is given both for indemnity to the surety, and to secure the debt. Where it is given as security for the debt as well as indemnity, there would seem to be little doubt that the creditor, whether cognizant of the assignment and its purpose or not at the time of the assignment, could, when it came to his knowledge, avail himself of it as effectually, on maturity of his debt, as he could had it been assigned to him directly. But when the assignment is for indemnity only some courts have held that the surety's rights to apply the security as he pleased is inconsistent with the idea of a trust in favor of the creditor; and that the creditor can only reach the security by way of subrogation after the surety has been damnified, actually or constructively. Rankin v. Wilsey, 17 Iowa, 463; Carpenter v. Bowen, 42 Miss. 28; Hopewell v. Bank, 10 Leigh, 206. The great weight of authority, however, is against the proposition that the creditor's right is rooted in the doctrine of subrogation. The assignment of security by the principal to his surety is an appropriation of funds for the ultimate discharge of the debt for which he is holden. The surety has the right to apply the security directly to the payment of the debt. If the surety pays with his own funds, he keeps his principal's debt on foot against him, and then applies the security to its payment. Thus in any event the funds of the principal are made to satisfy the principal's debt, and this accords with the purpose of the principal when he gave the security. If the surety, after the assignment of the security, becomes insolvent, or by any act of the creditor, is discharged from liability, he holds the security in trust for the creditor. Cullom v. Br. Bank, 23 Ala. 797; Clark v. Ely, 2 Sandf. Ch. 166. The clear deduction from the cases is, that an assignment of securities by the principal to his surety for indemnity merely, raises an implied trust in favor of the creditor, which, on maturity of the debt, he may enforce, whether the surety has been damnified or not, and irrespective of the question whether the surety or principal, either or both, are insolvent. New Bedford Inst. for Savings v. Bank, 9 Allen, 175; Kramer's Appeal, 37 Penn. St. 71; Rice's Appeal, 79 id. 168; Seibert v. True, 8 Kan. 52; Ohio Life Ins. Co. v. Ledyard, 8 Ala. 866; Moore v. Moberly, 7 B. Mour. 299; Curtis v. Tyler & Allen, 9 Paige Ch. 432; Ten Eyck v. Holmes 3 Sandf. Ch. 428; Parris v. Hulett, 26 Vt. 308; 1 Story on Eq. Juris., § 499 (Redfield's ed.); Brandt on Suretyship, § 283. Here the principal and surety are both insolvent, and the liability of the surety has been fixed by judgment: but we regard these facts important only as they seem to intensify the equity of the oratrix. A question of practice is brought to our notice by this and some other recent cases, which calls for comment. The defendant bank, in its first answer filed in the cause, conceded the execution of the Bates mortgage, and interposed no defense against it, except that it was fraudulent against creditors. After the testimony had been partly taken, the defendant discovered the defect in the execution of this mortgage, and thereupon applied to the court for leave to amend its answer by substituting certain words for words then in the answer, by interlining other words, and by incorporating certain new matter. The amendment in this mode was authorized. This method of amending an answer is wholly unauthorized, even by the rules of loose practice. The answer is sworn evidence in the cause, and can be changed in its phraseology no more than a deposition could. Indeed, viewed in its character as evidence, it is a deposition. The true mode, and the only one sanctioned by the books in cases of this kind, is to incorporate any amendment which the court sanctions into a supplemental answer, to be verified by oath. The amendment in this case is not sworn to; the original answer is mutilated so that no conviction for perjury could be had if false swearing existed in that, as originally drawn. Moreover, the amendment itself went quite as far as the authorities would warrant. Mitf. & Tyl.'s Pleadings, chap. 4; 1 Dan. Ch. Pr. 781 et seq.; Adams' Eq. (6th ed.) 680 et seq. The result is that the oratrix is entitled to have the Bates mortgage stand as a security to her for the payment of the sum due her from the defendant Morrill, as her guardian, as fixed by the Probate Court; and a decree of foreclosure thereof against the defendants; and so far as she receives payment from or under such decree, the estate of Bates is to be discharged from liability under said bond. The pro forma decree of the Court of Chancery is reversed, and the cause is remanded with directions to enter a decree for the oratrix in accordance with the views herein expressed. WARRANTY OF FITNESS OF HIRED ROAD VEHICLE. ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, APRIL 4, 1881. HYMAN V. NYE, L. R., 6 Q. B. D. 685. The plaintiff hired from the defendant, a jobmaster, for a specified journey, a carriage, a pair of horses, and a driver, During the journey a bolt in the under part of the carriage broke, the splinter bar became displaced, the horses started off, the carriage was upset, and the plaintiff injured. In an action against the defendant for negligence, the jury were directed that if in their opinion the defendant took all reasonable care to provide a fit and proper carriage, their verdict ought to be for him. The jury found a verdict for the defendant, and in particular that the car. riage was reasonably fit for the purpose for which it was |