merely discounted." Now, possession by a maker, after an indorsement, certainly cannot amount to more than proof of payment. Burbridge vs. Manners was a suit against the indorsee of a promissory note which had been paid a few days before it came due, but not cancelled, and which afterwards came into the hands of the plaintiff before its maturity. The plaintiff was permitted to recover. And in Morley vs. Culverwell, 7 Meeson & Welsby 174, it appeared that a bill of exchange which had been accepted was satisfied four days before it fell due by the acceptor, aud delivered up to him by the drawer, uncancelled. It was held, notwithstanding this, that the drawer was liable on it to a party to whom the acceptor afterwards indorsed it for value, before it became due. This was the unanimous opinion of the Court of Exchequer, and the language of the barons completely vindicate their judgment. Lord ABINGER, Chief Baron, said, "the contract of the drawer and of each indorser is that the bill shall be paid by the acceptor at its maturity, not before it is due, that it shall be paid according to its tenor and effect, that is, when it becomes due. If upon its being discharged before it becomes due, the drawer inadvertently leaves his name upon the bill, he is but in the ordinary case of a party who has a bill in negotiation, with his name upon it against his intention. It is in the hands of an innocent holder who has no notice that it has been discharged. Suppose mutual accommodation acceptances to be given, and to be exchanged before they have been negotiated, the names remaining on them, the parties may circulate them so as to give a title to a bonâ fide holder before they become due, and wherein does this case differ from that? Therefore a bill is not properly paid and satisfied according to its tenor unless it be paid when due; and consequently, if it be satisfied before it is due, by an arrangement between the drawer and acceptor, that does not prevent the acceptor from negotiating it, or an innocent holder for value from recovering upon it." In the same case Baron Parke said, "Nothing will discharge the acceptor or the drawer except payment according to the law merchant, that is payment of the bill at maturity. If a party pays it before he purchases it, he is in the same situation as

if he had discounted it." These cases hold there is nothing in the fact that an acceptor or maker of an indorsed note has it in possession and offers it for discount before its maturity, to give notice to a purchaser of its payment or extinguishment. Their doctrine is that one who discounts such a note for the maker, before it is due according to its tenor, is an innocent holder for value, and is entitled to recover against any of the parties to it. They cover the present case, and they appear to be supported by sound reason. It follows that the plaintiff in error could not have been hurt by the admission of the contents of Shaner's letter.

And there is nothing else in the record of which he has any reason to complain.

The judgment is affirmed.

ABSTRACTS OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF THE STATE OF NEW JERSEY.1

Criminal Law-False Pretences.-An indictment for obtaining property by false pretences must show that the accused represented that certain facts existed, and that such representations caused the owner to part with his property, and must further show that the statements which induced the owner to part with his property are untrue: State vs. Tomlin. A mere opinion or supposition that certain facts exist is not sufficient : Id.

A representation to a creditor that his debtor is insolvent, and is largely indebted, and that he is possessed of only small means, and is unable to pay the debt, thereby inducing the creditor to part with his claim at a sacrifice, when in fact such representations are untrue, and the debtor is able to pay, is obtaining property under false pretences, for which an indictment will lie: Id.

Vendor and Vendee-Deed in Escrow-Death of Vendor.-Where land is sold, a part of the purchase-money paid, and a deed executed and

1 From Andrew Dutcher, Esq., State Reporter, to appear in the 5th volume of his Reports.

planced in the hands of a third person to be delivered to the grantee, and the balance of the purchase-money to be paid on the happening of a certain event, if the grantor die before the event happens the title to the land does not vest in the purchaser, but descends to the heirs of the vendor, subject to the equitable rights of the purchaser: Teneick vs. Flagg.

If the heirs of the vendor afterwards make a deed to the purchaser, and the purchase-money is paid over to the vendor's administrator, such administrator will not hold the money as a part of the estate of the vendor, but will hold it as an individual for the heirs as their property, and an action will lie against him to recover it: Id.

The deed given by the heirs is an absolute title for the land; it is not a deed of confirmation, because there had been no previous deed delivered nor estate created to be confirmed: Id.

Trustee-Presumption of Conveyance and Surrender to cestui que trust —Mortgage.—A deed was made to J. G. B., Trustee of the Lexington and Danville Railroad Company of Kentucky, of the second part, the habendum and tenendum clauses and the covenants being to said party of the second part, his heirs and assigns, held, that on the face of the deed it showed a grant to J. G. B., and not to him in trust for the Brown vs. Combs et al.

company:

The railroad company executed a mortgage to J. G. B. and others, and J. G. B. made agreements for the culture of the lands, in which he styles himself as agent, and signs as such.. Held, that these circumstances, together with the deed, being made to him as trustee, &c., were sufficient evidence that the property was conveyed to J. G. B. in trust for the company, and that it was a mere naked trust: held, also, that taking a mortgage from the company, and acting as agent as above stated, were inconsistent with his character as trustee, and were sufficient evidence from which to presume a surrender of the trust and conveyance of the land to the company: Id.

To establish a trust, no particular form of expression is necessary in a deed; it cannot be declared by parol, but may be created by any writing showing that a trust is intended: Id..

A cestui que trust cannot recover in ejectment against his trustee unless a surrender to him of the legal estate can be reasonably presumed. He has no alternative but to bring the action against a stranger in the name of his trustee: Id.

A trustee, as tenant of the legal estate, may reeover in ejectment from his own cestui que trust, and the cestui que trust has no defence to the action at law; his only remedy is to sue out an injunction in a court of equity: Id.

A surrender of the trust, and a conveyance thereof by the trustee, may be presumed when the object of the trust has been accomplished: Id. A mortgagee by taking a mortgage assents to his mortgagor's right to execute it, and is estopped from denying the mortgagor's title: Id.

Where a mortgage is given to A. B. and C. to secure them as indorsers for the mortgagor, if C. is in possession of the premises, and A. and B. bring an action of ejectment against him to recover the land, if the plaintiffs are entitled to recover they will obtain the whole premises, unless the defendant can prove damage to him by payment of or liability on some of the bills of exchange or notes against which he was to be indemnified by the mortgage: Id.

Common Recovery-Presumption of Conveyance or Surrender to make a Tenant by the Precipe.-H. R., by his last will and testament, devised certain lands to I. R. "during his life, and then to the heirs of his body for ever." On the third day of June, 1799, I. R. conveyed the premises to I. H. and W. M. by deed of bargain and sale, with covenant of warranty and covenant for further assurance. He also executed to the grantees a bond conditioned that he would suffer a common recovery, whereby the entailment of the premises should be broken, and a good title in fee simple vested in the grantees. On the 12th of June, 1799, an act was passed abolishing fines and recoveries. H. and M. divided the land, and M. conveyed his share to W. H., April 29, 1806. On the 8th of June, 1806, a special act was passed to authorize I. R. to suffer a common recovery. He then executed a deed tripartite with J. M. W., as the recoverer, and C. E., as the tenant to the precipe, reciting that H. and M. had reconveyed the whole premises to him. Judgment of recovery was rendered September 2, 1806, and on the 13th I. R. conveyed the whole premises to H. and M. in fee simple. It did not appear that W. H. ever reconveyed to M., or that he had possession of the premises previous to the recovery. W. H. and. those claiming under him occupied the premises from March, 1807, to the commencement of this suit, a period of over forty years:

Held, that the facts warranted the presumption of a surrender by W. H. to M., which enabled M. to make such surrender to I. R. as gave the

latter power to make a good tenant to the precipe: held, also, that the recovery was legal, and under the conveyances and proceedings a good title in fee simple was vested in W. H.: Id.

:

Deed-Reservation of Entry to Repair, &c., Dams.-A deed of conveyance to the Central Railroad Company contained the following reservation, viz. excepting and reserving to the said M. S., his heirs and assigns for ever, the right and privilege to keep up and retain on said premises the small house and yard thereto attached, as the same is now located, for ever, and also the right and privilege to enter upon said premises from time to time to make, amend, and repair his mill-dams, and to remove from the pond the manure that may there accumulate from time to time. Held, that by that reservation the grantor, and those claiming under him, had the right to enter upon the premises not only to amend and repair the dam, but to keep up and maintain all dams upon the premises in the same condition in which they were at the time of making the deed of conveyance, and that the grantees had not the right to take down or remove the dams, or any part thereof: Valentine vs. The Central Railroad Company of New Jersey.

The grantor made an agreement with the company, granting to them the right and privilege to extend, widen, and strengthen their embankment by the use of his lands, and relinquishing to them all claim for damages that might arise from the use of the rights and privileges thus granted, and also relinquishing all claim for damages which he had previously sustained at their hands. Held, that this agreement did not give to the company any right to take down or remove any part of the dam: Id.

Ways-Right to erect Gates.-The statutory right to erect swinging gates across private and by-roads extends to all ways except such as come within the description of public roads: Stevens vs. Allen.

Municipal Corporations-Improvements, Assessments for.-Where the charter of a city provides that the expense of improvements, when completed, shall be ascertained and assessed by three impartial commissioners, to be appointed by the common council, the corporation has not the power to establish a board of commissioners of assessments who shall act in all cases. The commissioners must be appointed for each specific case: The State vs. The Mayor and Common Council of the City of Hudson.

Where a city charter requires property to be assessed to pay for improvements according to the benefits received, it is not sufficient to assess