memorandum sufficient if its language so indicated the consideration that it could be argued out or inferred, and very much of nice criticism and narrow distinction followed as a result. Rogers v. Kneeland, 10 Wend. 251; 13 id. 114. The Revised Statutes sought to remedy the difficulty by an amendment requiring the consideration to be expressed, but the question whether in each case it was expressed, or what was a sufficient expression, led to renewed and continual litigation. It was soon held that the words "for value received were enough to satisfy the requirement (Miller v. Cook, 23 N. Y. 495), and in 1863 the Legislature struck out the clause, and restored the section to its old form. But in all the current of authority in this State pre vious to the final amendment, it was steadily ruled that the memorandum must contain the whole agreement, and all its material terms and conditions, not indeed in detail and with absolute precision, but substantially, and so that one reading the memorandum could understand from that what the agreement really was. In Wright v. Weeks, 25 N. Y. 159, which preceded the amendment of 1863 but a few years, that doctrine was declared in very strong terms, aud as decidedly settled. But the change of 1863 has given rise to a new question, and bred in the courts a wide difference of opinion. In Speyers v. Lambert, 6 Abb. (N. S.) 309, the General Term of the Superior Court held that the effect of striking out the clause requiring the consideration to be expressed was not merely to restore the law as it was before the words were inserted; that is to say, that the consideration must appear in the agreement, but might be argued out or inferred from its terms; but to go further than that, and make wholly and entirely unnecessary any statement of the consideration at all. That was said however in a case where the consideration was rendered at the moment in which the contract took effect, so that such contract was executory upon one side only, and not upon both. The exact contrary of this construction was held in Castle v. Beardsley, 10 Hun, 343, and the remark of Bingham in his work on Contracts for the Sale of Real Property (363) was cited with approval, that "it is certainly a singular way of construing a statute that has been once amended, and then again amended by striking out the amendment, to mean something different from what it did before it was amended at all." material terms of the contract between the parties. It must show on its face what the whole agreement is so far as the same is executory and remains to be performed, and rests upon unfulfilled promise. Down to the amendment of 1863 no case wandered from that rule, so far as we have been able to discover; and since that date it has been restated and enforced in this court. In Newbery v. Wall, 65 N. Y. 484, a letter admitting the purchase of goods by the writer from the person to whom it was written was held to be an insufficient note or memorandum, because it did not " express any consideration or terms of the purchase,' ""and it is impossible to say from the contents of the letter what the contract in fact was. And again in Stone v. Browning, 68 N. Y. 604, Rapallo, J., said of a similar letter admitting the agree ment to purchase: "It does not state the price or any of the terms of the contract. These deficiencies cannot be supplied by oral evidence. All the essential parts of the contract must be evidenced by the writing." Now those essential parts cannot be omitted,. because in addition to constituting such material elements, they constitute also a consideration of the contract. The agreement of the defendant in this case was not merely to pay so much money to plaintiff. It was to pay him that money for his services as salesman to be thereafter rendered. For what the payment was to be made constituted a material and essential element of the agreement on the part of the defendant; an important condition of the contract on his side. His agreement was not absolute to pay the money. It was conditioned to the rendition of the stipulated services. Any memorandum which omits the condition falsifies the agreement which he actually made, and represents him as agreeing to pay the money absolutely when he did not so contract. It is no answer that the omitted condition, coupled with the other party's promise of performance, constituted a consideration for his own agreement, and so need not be expressed. If we were to grant that, and follow Speyers v. Lambert to its full extent, it would only justify an omission from the memorandum of plaintiff's promise to perform the services, and not of defendant's condition modifying and limiting and measuring his own promise. As in the cases last cited in our own reports, the agreement was not an absolute agreement to purchase irrespective of price, but to buy at an agreed and What was said in Evansville National Bank v. Kauff-specified price, so here the agreement was not an abman, 93 N. Y. 273, was not intended at all to decide the question upon which the courts have thus differed. The guaranty there was special, and without consideration in fact, and the question now under discussion was not before the court. Very early it was doubted whether the amendment of 1830 at all changed the law (Church v. Brown, 21 N. Y. 331, per Comstock, J.), and it is extremely difficult to answer the logic of the doubt. In that view of the subject neither amendment changed the law, and the presence or absence of the omitted clause was alike immaterial. But if the amendment of 1830 worked any change, it was more than this: that the consideration should no longer be implied from the language of the instrument, but should be expressed in it. Brewster v. Silence, 8 N. Y. 413. And the subsequent omissions of the inserted clause would seem only to indicate a legislative intent not to require a definite expression of consideration, and leave the contract good if one could be implied or inferred from its terms. Reed Stat. Frauds, § 423. But whatever else may be said of the amendment of 1863, we are quite sure that it cannot be understood to destroy and annul the requirement that the note or memorandum must contain all the substantial and solute agreement to pay so much money, but to pay it upon condition that certain specific services were rendered. And if we conceded that the consideration might be wholly omitted from the memorandum, it would still be requisite that all the essential and material elements of defendant's own agreement should be stated, and they are not stated where the very condition upon which he is to pay at all is omitted, and the subject-matter of his agreement is absent. And that brings us to the question whether the memorandum on its face stated the actual contract which the defendant made; or whether from the memorandum we can determine what the real contract between the parties was. The actual agreement was that the defendant would pay yearly the sums specified in the memorandum for the services of the plaintiff as a salesman, to be rendered for three years, and the inquiry is whether that contract is stated in the memorandum. The writing begins with the words "preserve this," and continues thus: "The understanding with Mr. Drake is as follows: $2,000 for the first year; $2,500 for the second year sure, and provided the increase sales shall warrant it, he is to have $3,000. Third year in proportion to business as above." On the face of this writing the contract of the defendant with its essential terms and conditions does not at all appear, unless we yield to the construction very ingeniously suggested and forcibly argued on behalf of the appellant, that the words "for the first year" mean for the first year's time of the plaintiff, and so on through the other stipulations. It is said the word "year" means a period of time, and must be held to refer to the plaintiff's time, using that word in the sense of services, and the construction is sought to be strengthened by parol evidence, showing that plaintiff was a salesman and defendants manufacturers. There are no technical or ambiguous words in the memorandum requiring explanation, and we cannot resort to parol evidence to insert in the writing what is not there. Wright v. Weeks, supra. Confining our attention to what the memorandum says, we observe that its language is equally applicable to many contracts entirely different from that actually made. Although plaintiff is a salesman, he may have invented or purchased a patent valuable for the use of the defendants, and bargained to give them that use for three years, in return for which plaintiff was to have "$2,000 for the first year; $2,500 for the second year sure, and provided the increase sales shall warrant it, he is to have $3,000. Third year in proportion to business as above." Or the plaintiff may have rented to the defendants a store or factory for three years, and the memorandum recited the rental. And so the illustrations might be multiplied. Nothing in the writing indicates which of all the possible contracts was intended, or identifies the one really made. To a person depending wholly upon the writing, the real contract made is impossible to be ascertained. And here comes in the difficulty against which the statute was aimed. If the memorandum be held sufficient, any falsehood or perjury on the part of plaintiff might apply it to an agreement never made or thought of, and against that the memorandum would not furnish the least protection. And there is a further difficulty as to the third year, which is the only one here in controversy. Precisely what the final clause means it is not easy to say. It does not provide in terms for any fixed salary, but makes the payment dependent upon the business in proportion to the rates above stated. No evidence was given showing the amount of business. We cannot hold this memorandum sufficient without a dependence upon parol evidence, which would practically nullify the statute, and since we have held that one party may be bound by his signature, while the other party, not signing it, is not bound at all (Mason v. Decker, 72 N. Y. 595), it becomes very important for the party who does sign and is bound, that the rule should be firmly adhered to which requires the real contract to be stated with its substantial terms and conditions. We therefore agree with the conclusion of the General Term. The order of the General Term should be affirmed, and judgment absolute rendered for the defendants, with costs. All concur except Rapallo, J., absent. Order affirmed. NEW YORK COURT OF APPEALS ABSTRACT. CORPORATION-NEW YORK STOCK EXCHANGE MEMBERS BOUND BY CONSTITUTION, ETC.-SALE OF SEAT-PROCEEDS TO CREDITORS IN EXCHANGE.-The provisions of the constitution and by-laws of the New York Stock Exchange are obligatory upon its members as a contract. By said constitution it was provided that "if any suspended member fails to settle with his creditors within one year from the time of his suspension his membership shall be disposed of * * and the proceeds paid pro rata to his creditors in the Stock Exchange," excluding however from the distribution claims not filed before a transfer of the right of membership, and any difference "growing out of a claim on a put or call, notified for and reduced to a contract after failure." W., plaintiff's assignor,a member of the Exchange, failed, his seat was sold under the rules, and claims of members were filed and proved to more than the proceeds of sale. All of such claims however were on puts and calls, notified for and reduced to a contract after failure. In an action to recover such proceeds, held, that plaintiff was entitled to recover; that it was immaterial whether such contracts were valid or not, but that W., by the laws of the association, becoming a member, assented to an appropriation of his property in a particular way and to certain debts to the exclusion of all others, and no appropriation could be made to which he had not in like manner assented. Also held, that provisions of said constitution, giving the governing committee of the Exchange all powers necessary for its control, making its decisions final, declaring that all debts without distinction shall be binding on members, and giving said committees cognizance of them, did not make a decision of said committee, admitting the claims so proved to share of the proceeds, final; that the committee could have no power to admit a claim which the constitution by its terms excluded. Weston v. Ives. Opinion by Danforth, J. [Decided Nov. 25, 1884.] INSURANCE-FIRE-EVIDENCE THAT "" FIREWORKS WERE PART OF STOCK-CERTIFICATE OF NEAREST NOTARY-ACTION DOES NOT ACCRUE UNTIL NEGOTIATIONS CLOSED.—(1) Defendant issued to plaintiffs, who were doing business in the city of Buffalo, a policy of fire insurance "on store, furniture and fixtures" in a building In that city, "to be used by the assured as a fancy goods and Yankee notion store." The policy contained a condition in effect that in case the property should be used for storing or keeping therein any articles, or for more hazardous purposes than that called for by the original contract of insurance, unless specially provided for, or thereafter agreed to by defendant, or if, during the existence of the policy, the risk should be increased by occupation of the premises for more hazardous purposes, unless notice thereof was given to defendant, and its consent in writing indorsed, the policy would thereby be rendered void. In the classes of hazard forming part of the policy, fancy goods and Yankee notions were classed as "ex. tra-hazardous," and fireworks as "specially hazardous." Over the latter class was printed a statement that the merchandise specified therein "to be covered must be specially written in the policy." In an action upon the policy it appeared that at the time of the fire plaintiff had in the store a stock of fireworks; no notice of intention to keep them had been given defendant or assent on its part obtained. Plaintiff was allowed to prove, under objection and exception, that fireworks constituted an ordinary, usual and recognized portion of a stock of fancy goods and Yankee notion store. Held, no error. Pindar v. Kings Co. Fire Ins. Co., 36 N. Y. 648; Steinbach v. Lafayette Fire Ins. Co., 54 id. 90. The evidence was sufficient to justify the referee's findings in accordance with it, even if it is considered as the appellant claims it should beas relating only to the city of Buffalo and its vicinity. The subject of the insurance was at that place, and the underwriters knew, or ought to have known, the usage and course of business in connection with which the policy was issued, and must be assumed to have made their contract with reference to it. There was then no breach of any condition of the policy, and the plaintiff established a cause of action. (2) The appellant objects to its enforcement however upon the ground that although the plaintiff produced the certificate of a notary public in due form, "he was not the notary referred to in the policy, because he was not the one most contiguous to the place of fire." It appeared however that proofs of loss were given in due season, and objections upon various grounds made to their sufficiency. The notary in fact resided within 400 feet of the fire, and no defect in this respect was pointed out until after the commencement of the action. It was then too late. O'Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122. As regards the defense that the action was not commenced in time, the learned counsel for the appellant concedes that the time to bring the action did not expire until February 13, 1880. The referee found in fact that it was commenced on the 28th of January of that year. Upon the facts stated it can hardly be pretended that the application now sought to be made of the condition in question is either "just or honest," and it is said that in such case only "should it be permitted to defeat a recovery." Mayor v. Hamilton Fire Ins. Co., 39 N. Y. 45; Hay v. Star Fire Ins. Co., 77 id. 235. Nor does it apply except where the proofs of loss were originally complete, and received without objection (Ames v. N. Y. Union'Ins. Co., 14 N. Y. 254), nor where the delay is occasioned by the demand of underwriters for other particulars. Mayor v. Hamilton Fire Ins. Co., supra; Ames v. Union Fire Ins. Co., supra; Hay v. Star Fire Ins. Co., supra. See also Steen v. Niagara Fire Ins. Co., 89 N. Y. 315. Barnum v. Merchants' Fire Ins. Co. Opinion by Danforth, J. [Decided Oct. 31, 1884.] granted in said action directing a sale, and upon the sale Hull became the purchaser, received a deed, and executed the mortgage in suit. The judgment of foreclosure was in the usual form, no provision being made for a sale subject to the rights of the children of the testator's living children, or reference thereto. Held, that the court had jurisdiction of the subjectmatter of the partition action and of the parties, and if it determined incorrectly in awarding to the plaintiff a relief to which she was not entitled, the error should have been corrected on appeal. Blakeley v. Calder, 15 N. Y. 617; Howell v. Mills, 56 id. 226; Sullivan v. Sullivan, 66 id. 40. The purchaser bought with notice that the rights of the children not made parties to the partition were outstanding, and subject to those rights, paying a less amount, because buying a less estate then the whole. What could pass by the foreclosure sale was what purported to be sold, and must have been so understood by the purchaser. No wrong is done in requiring him to pay for exactly what he bought. An amendment of the decree was unnecessary. It furnished as it stood adequate authority for the sale of the property covered by the mortgage, and as that did not cover what the mortgagor did not have, the sale as made was consistent with the decree. Before the partition suit it is said the widow gave to the New York and Boston Railroad Company a right to enter upon the land and maintain its road. That was dated July 19, 1871, but not recorded until 1882. It does not appear that the partition suit was actually later than the lease, nor that the purchaser under the decree had any notice of its existence. That purchaser, while furnishing affidavits for the present purchaser, does not say that he had such notice. The successor of the Boston road was not made defendant in the foreclosure suit, and holds a deed from Hull, who was also such defendant. Cromwell v. Hull. Opinion per Curiam. [Decided Oct. 31, 1884.] STRACT.* AGENCY-LIEN OF AGENT FOR ACCEPTANCES.-Where a principal consigns goods to an agent to sell under an agreement that the latter will accept bills drawn upon him by the former to the amount of goods so consigned on hand, it is a necessary inference that the drafts are to be drawn on the credit of the goods; and to the amount of acceptances outstanding, the agent NEW JERSEY COURT OF CHANCERY ABhas a lieu on the goods in his hands, as security, and is entitled to retain the same until the acceptances are paid. The law implies or infers the lien from the relation between the parties. 1 Pars. Cont. (5th ed.) 98; 3 id. 259; Holbrook v. Wight, 24 Wend. 169; Bank v. Jones, 4 N. Y. 497. That there may be no misapprehension, it may be added that if there was an agree ment that the defendants should apply the proceeds of goods sold to the payment of drafts as they matured, then so far as they had such proceeds in their hands applicable to that purpose, they were bound to apply them to that purpose; and they could not hold the goods as security against drafts which they could thus pay, and were bound to pay; rad in such case the plaintiff, after paying the drafts, so as to leave outstanding an amount no greater than such proceeds, could claim and take the goods from the possession of the defendants. Nagle v. McFeeters. Opinion by Earl, J. [Decided Oct. 31, 1884.] JUDICIAL SALE-PURCHASER COMPELLED TO PERFECT TITLE. This was an action to foreclose a mortgage executed by the defendant Hull. One Lynt died in 1855 seised of the premises in question, leaving a will by which he devised said premises to his widow so long as she should remain unmarried, and upon her death or remarriage he devised his same to his five children, and in case of the previous death of any of them, to their issue. The widow brought partition, making the surviving children and the issue of one deceased child of the testator parties; the issue of the living children were not made parties. A decree was RECEIVER-INSOLVENT RAILROAD LIABILITY ON CONTRACT OF PREDECESSOR.-The petitioners claimed to have supplied the former receiver of an insolvent railroad, appointed by this court, with large quantities of materials for the use of the railroad. They applied for an order directing the present receiver of the railroad to pay for those materials, and also for an order giving them leave to sue him at law for the damages which they allege they have sustained at his hands by reason of his non-fulfillment of his predecessor's contracts with the petitioners for other materials similarly supplied. Held (1), that this court, before granting the petition, would by a preliminary examination of the transaction, determine whether the matter cannot be disposed of here; (2) that the present receiver is not as such liable to be sued at law on the contracts of his predecessor; and whether the railroad property is bound by the contracts of the former receiver, is a question of which this court has exclusive jurisdiction. Palys v. Jewett, 5 Stew. 302, distinguished. Lehigh Coal & Nav. Co. v. Central R. Co. Opinion by Van Fleet, V. C. EVIDENCE-INCOMPETENT WITNESS-WAIVER OF OBJECTION-RIGHT OF COURT TO SUPPRESS ILLEGAL.-(1) If a party against whom an incompetent witness is called, with full knowledge of his incompetency, allows the witness to be sworn and examined without objection, he will be considered to have waived the objec. tion to his competency. Berryman v. Graham, 6 C. E* To appear in 38 N. J. Eq. Reports. Gr. 370; Boone v. Ridgeway Ex'rs, 2 Stew. Eq. 543; 1 Greenl. Ev., § 421; 3 id., § 369. (2) Though the party against whom an incompetent witness has given evidence may have lost his right to object to his evidence, yet the court may, on its own motion, if it appears that the evidence is opposed to the policy of the law, and dangerous to the administration of justice, suppress it in suits where either party to the transaction put in contest by the suit was dead, the survivor should not be a competent witness unless his adversary chose to make him so by becoming a witness himself. The design was a highly salutary one. It is eminently just that when death has sealed the lips of one party the law should seal the lips of the other. The great object of the restriction, as stated by the chancellor in Colfax v. Colfax, 5 Stew. Eq. 206, was to guard against the injustice which would arise from a want of mutuality in the exercise of the right to testify. There can be no doubt that if the parties are allowed to testify in their own cases, the safe administration of justice requires that they should be put upon an equal footing, and that if one is allowed to go upon the stand to testify, the other should have the right to go there also, either to confirm or to contradict his adversary's evidence, and that when the lips of one are closed, the other should not be tempted to commit perjury by being permitted to testify to matters which his adversary can neither contradict nor explain. If the evidence of one party was admissible when the other could not testify, the interests of mankind, an eminent English judge has recently said, would in his opinion imperatively require that unless corroborated it should be wholly disregarded. further said: "Nobody would be safe in respect of his pecuniary transactions if legal documents found in his possession at the time of his death, and endeavored to be enforced by his executors, could be set aside, varied or altered by the parol evidence of the person who had bound himself." Hill v. Wilson, L. R., 8 Ch. App. 888, 900. Monfort's Adm'r v. Rowland. Opinion by Van Fleet, V. C. MAINE SUPREME COURT ABSTRACT.* CONTRIBUTION He PARTNERSHIP - TENANTS IN COM MON.-Two persons purchased timber-lands and gave their joint notes, secured by mortgage, for a portion of the purchase-money, then as co-partners they cut therefrom and manufactured a portion of the timber. About two years after the business of the firm ceased, one of the partners paid a judgment rendered on one of the mortgage notes, and both joined in a deed of quit-claim of the lands to the mortgagee as a compromise settlement of the mortgage debt. Held, that the one who paid the money could maintain an action at law against the other for one-half the amount so paid. Soule v. Frost. Opinion by Symonds, J. MARRIAGE-DIVORCE-Dower.-Cross libels for divorce pending between a husband and wife were heard together; the court first decreed a divorce on the husband's libel for the fault of the wife, and the next day decreed a divorce on the wife's libel for the fault of the husband, and decreed to her a certain sum in lieu of alimony. Eight months afterward the husband died and the wife then brought an action against his heirs to recover her dower. Held, that she was not endowable. When the final decree of divorce was entered on the husband's libel for the fault of the wife she was at once barred of her dower in his lands. Stilphen v. Houdlette, 60 Me. 447. True, the court had jurisdiction after the decree in favor of the husband on his libel to enter the decree in favor of the wife ou her libel and grant her alimony; Stilphen v. Stilphen, *To appear in 76 Maine Reports. 58 Me. 508; but that decree in no way qualified or af fected the legal consequences of the prior decree. The bar is just as effectual when a day only intervenes between the decrees as if it was a year. Moulton v. Moulton. Opinion by Walton, J. MALICIOUS PROSECUTION -EXCESSIVE DAMAGESPROBABLE CAUSE-ADVICE OF COUNSEL.-In an action for malicious prosecution, for causing plaintiff's arrest upon a warrant charging him with forgery by making unauthorized entries in certain books of accounts, and upon his discharge, by causing his arrest upon another warrant charging him with embezzlement amounting to larceny, held, that a verdict in favor of the plaintiff in the sum of $1,100 was not excessive. Humphries v. Parker, 52 Me. 502. In an action for malicious prosecution, where the defendant claims that he acted under the advice of counsel, it is for the jury to say whether the fact that the attorney and counsellor whose advice was sought was the attorney in a civil suit to recover of this plaintiff the sum alleged in the criminal proceeding to have been embezzled, made the attorney an improper person to consult-whether he was carrying on the suit under such circumstances and with such motives as prejudiced him and rendered him unfit to give fair and impartial advice in the premises. The true doctrine is, that previous consultation with and favorable advice of counsel learned in the law, are facts which have a bearing, both upon the existence of probable cause and the presence or absence of malice in the prosecution complained of (which last is always a question for the jury); but the conditions under which such consultation and advice will amount to a valid defense are such as almost inevitably to require the submission of the evidence to the jury, under proper instructions. to find whether those conditions exist in the case on trial. If they do, the jury are to give them effect by applying the instructions to the facts as they find them. It is not every member of the bar whose character and standing are sufficiently known to the court to enable the presiding judge to say that he answers the description of "counsel learned in the law." See Stevens v. Fassett, 27 Me. 266. Of those whom he might so regard, the situation may be such in relation to the particular case, as to prevent their opinion from amounting to a justification, or at least to make it doubtful whether it was the unbiased, deliberate opinion of counsel learned in the law and properly informed respecting the case. White v. Carr, 71 Me. 555. In Hewlett v. Cruchley, 5 Taunt. 277, it was well said, that "it would be a most pernicious practice if we were to introduce the principle that a man by obtaining an opinion of a counsel, by applying to a weak man, or au ignorant man, may shelter his malice in bringing an unfounded prosecution." But in addition to this, it is an essential condition that there should be plenary proof that the client communicated to the counsellor all knowledge and information which he had, respecting the material facts-and not that alone-but also all such knowledge and information as in the exercise of reasonable care and prudence (with due regard to the rights of the party against whom he proposes to proceed) he might have obtained. Stevens v. Fassett, supra; White v. Carr, supra. Watt v. Corey. Opinion by Barrows, J. for a period of seven days, where the slippery and dangerous condition of the pavement could have been seen and avoided by the person injured. Denhardt v. City of Philadelphia. Opinion per Curiam. [Decided Feb. 4, 1884.] MUNICIPAL CORPORATION-ICY SIDEWALK-CONTRIBUTORY NEGLIGENCE.—The owner of an ice-house, fronting upon a public street in the city of Lock Haven, constructed, without the consent of the municipal authorities, a slide of heavy timbers in front of his premises, extending entirely across the street. Many lumps of ice had fallen from the slide upon and near the pavement in front of the ice-house, so that the only safe way for foot passengers was to turn out into the street, and cross the slide at a point where approaches to it had been constructed. A. lived next door to the ice-house, and during a period of about two weeks, while the obstruction continued, became well acquainted with its dangerous nature; she testified that she always crossed it with great care, and frequently after crossing it continued on some distance up the middle of the street instead of turning on to the sidewalk. She might have avoided passing the slide altogether by using an alley near her house, which would however have made her go a short distance further than if she crossed the slide. A snow having fallen which partly covered the ground, and ice blocks the day-time, crossed the slide in the middle of the street, and then finding the street slushy, turned to go upon the sidewalk near the slide. In so doing she slipped and fell upon the blocks of ice lying there. In an action by her against the city to recover damages for the injuries sustained: Held, that she had been guilty of such contributory negligence as warranted the court in giving to the jury binding instructions to find for defendant. Fleming v. City of Lock Haven. Opinion by Trunkey, J. fallen from the slide, A. started out from her house in [Decided Oct. 6, 1884.] LANDLORD AND TENANT-DISPUTING LANDLORD'S TITLE-MAY SHOW IT HAS TERMINATED.-Altenant in a proceeding by his landlord to recover possession may show in defense that the title of the plaintiff has come to an end by expiration, by his own act, or been divested by act of the law. Newell v. Gibbs, 1 W. & S. 496; Menough's Appeal, 5 id. 432; Elliott V. Smith, 11 Harr. 131; Heritage V. Wilfong, 8 P. F. S. 137; Koontz V. Hammond, 12 id. 177. In Newell v. Gibbs, supra, Rogers, J., said on p. 498: "For although the defendant is not permitted to show that his lessor never had title to the demised premises, he may, on admitting that he once had title, prove that his interest has expired." In Menough's Appeal the landlord's title during the term of the lease was purchased at sheriff's sale under a judgment obtained prior to the commencement of the term. The rent for the year fell due at the end of the term, and was claimed by one to whom the landlord had assigned it, by the purchaser of the landlord's title and by an execution creditor of the tenant. The rent was awarded to the purchaser of the landlord's title on the express ground that the judgment under which the land was sold was paramount to the lease, and it was at the purchaser's option to disaffirm the lease or to affirm it and to recover the rent, and that as the rent ran with the land it could not be assigned by the landlord after the judgment so as to defeat the right of the purchaser to have it. In Elliott v. Smith we said: "A tenant cannot dispute the title of his landlord, nor can he purchase an outstanding title, and under it withhold the possession from his landlord. When however be becomes the owner of the very title under which his landlord claims, either by purchase from the landlord, or at a sheriff's sale upon a judgment which incumbers it, he is not bound to give to another that which rightly belongs to himself." Of course if a sheriff's sale of the landlord's title, under a judgment which incumbered it, would vest it in the tenant when he was the purchaser, it would vest it for the same reason in a stranger should he become the purchaser. In Heritage v. Wilfong, Sharswood, J., said: "This un doubtedly makes it the duty of the justice to hear any lawful defense which the tenant may offer. It would landlord had come to an end since the commencement be such a defense if he could show that the title of his of the lease. It would therefore be competent for him to plead and prove that under a judgment against the lessor his estate had been sold by the sheriff, and that he had attorned to the purchaser." It is true that in the foregoing case the judgment was against the tenant's immediate landlord. But we can see no difference in substance between the determination of the landlord's title by a sale under a judgment against him personally, and such determination in a case where the sale was made under a judgment which was a lien upon the landlord's title at the time of its inception. The legal result is the same in both cases, the title, the very title of the immediate landlord is divested in each instance, and it is this divestiture which a tenant may set up against his landlord. The same doctrine was repeated by the same eminent judge in Koontz v. Hammond where he said, speaking of the rights of defense by the tenant: "He might have shown that the title of the plaintiff had come to an end by expiration, by her own act, or been divested by act of law." For these reasons we think that the defendant's offers of testimony should have been received, in so far as they related to the divestiture of the plaintiff's title by judicial sale, and because of their rejection the case must be reversed. Smith v. Crossland. Opinion by Green, J. [Decided May 26, 1884.] OUR LONDON LETTER. of the most distinguished of her lawyers. His N Lord O'Hagan, the United Kingdom has lost one career was extraordinarily felicitous. A Roman Catholic, an ally of the Repeal Association, the champion of the accused in countless crown prosecutions, he nevertheless found himself promoted from office to office until he finally was created lord chancellor of Ireland, amidst the combined applause of the conservative and the liberal press. All this is matter of common knowledge for the daily papers, and those which deal solely in legal commodities have published lengthy obituary notices in a biographical form. There is nothing new to be said about the departed judge, except that his career was such as to be a lesson to his fellow countrymen who may learn from it the generosity of the English government, a quality which they are somewhat slow to acknowledge. The present generation was more familiar with Lord O'Hagan as a judge than as an advocate. In the latter capacity fresh and vivid tradition gives us a portrait of a man endowed with extraordinary eloquence of that fiery yet pathetic kind which is distinctly high and wonderfully effectual. On the bench, primus inter pares, he was remarkable for clearness of thought and absolute impartiality. Moreover he was dignified beyond the ordinary run of judges. This brings me gradually to a topic which now attracts very considerable attention, and deserves to attract more. The majesty of a judge of the present day is not to be compared to that of a judge in the past. Not long since a polemical correspondence appeared in the Times, and it was more than suspected that two judges were the main combatants. Whenever a question of intricacy crops up |