be shown that he was connected with the inception of the note. 4 Seld., 211; 8 Johns., 28; 5 Denio, 484. 3. But if the note was intended for discount, and he put his name on the back of the note with the understand ing of all the parties that his indorse ment would be inoperative until the instrument was indorsed by the payee, he would then be liable only as a second indorser in the commercial sense, and as such would clearly be entitled to the privileges which belong to such an indorser. Facts and circumstances attendant at the time the contract was made are competent evidence for the purpose of placing the Court in the same situation and giving the Court the same advantages for construing the contract which were possessed by the actors. 6. Wall., 784. Courts of justice may acquaint themselves with the facts and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described. 9 Cl. & Fin., 569; 4 Nev. & Man., 606; Addison on Cont. [6th ed.], 918; 2 Taylor's Ev. [6th ed.], 1035. Like a deed or other written contract, a promissory note takes effect from delivery, and as the delivery is something that occurs subsequent to the execution of the instrument, it must necessarily be a question of fact when the delivery was made. Parol proof is, therefore, admissible to show when that took place, as it cannot appear in the terms of the note. 2 Taylor's Ev. [6th ed.], 1001; 4 East., 477; 10 Mees. & Wels., 694. Opposed to that, the suggestion is that if a holder produces a note having a blank indorsement of one not the payee, the presumption is that it was made at the inception of the instrument. 44 Me., 441. Grant that, and still it is a mere presumption of fact which may be rebutted and controlled by parol proof that it was not there when the note was delivered, or that it was made at a subsequent date. 12 Gray, 278. Whether the party be regarded as a second indorser or an original promisor, it is not necessary to allege or prove any other than the original consideration; but if it be attempted to charge him as a guarantor, a distinct consideration must appear. 12 Gray, 277; 4 Seld., 207. Judgment affirmed. CONTRACT. DAMAGES. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. William H. Parsons, respt., v. Solon Taylor, applt. Decided October, 1877. An agreement between two parties to refer to other persons a question as to the terms of a trade, which provides that if either refuses to abide by the decision, he shall forfeit a specified sum to the other, is valid; the promise of each is a valid consideration for the promise of the other; so also is the delivery by each of his property to the umpires to be valued. In such case the sum fixed is not a penalty, but liquidated damages. Appeal from a judgment of the Chautauqua County Court affirming a judgment rendered in a Justice's Court in favor of the plaintiff. No testimony was introduced by the defendant on the trial, and the case made by plaintiff showed that the parties, having been in negotiation for an exchange of property without coming to terms, agreed to leave it to two other men, one to be chosen by each of the parties, to decide how they Talmage, 5 Seld., 551; Clement v. Cash, 21 N. Y., 253. Held also, That the arrangement was not a wager contract. The judgment of the County Court should be affirmed. Opinion by Smith, J. ABATEMENT. should trade, and if either party re- N. Y. SUPREME COURT. GENERAL The fused to abide by their decision he should forfeit to the other the sum of ten dollars. In pursuance of the agreement, each party chose a man, and put into his hands the property which he proposed to trade. men thus selected examined and appraised the property, valuing that of the plaintiff at 230 dollars, and the defendant's at 115 dollars, and they decided that the defendant should pay the plaintiff 115 dollars on an exchange of the property. The defendant refused, and neglected to pay the ten dollars forfeit money, for which sum this suit was brought, and the plaintiff recovered. J. G. Record, for applt. J. A. Parsons, for respt. Held, The judgment was clearly right. The promise of each party was a good consideration for the promise of the other. So also was the delivery of each of his property to the umpires, to be examined and valued in pursuance of the contract. TERM. FOURTH DEPT. David Bonnell, respt., v. The R. W. & O. R. R. Co., applt. Decided October, 1877. Imprisonment in the State prison of a plaintiff does not abate the action. The plaintiff's rights are alone suspended by such imprisonment. Appeal from order setting aside a judgment in favor of appellants. Action brought to recover a penalty under the act of March 27, 1857. Issue was joined in August, 1874. After that date the respondent was indicted, convicted and sentenced to State prison for two years. Afterwards the appellant noticed said cause for the Circuit, and when it was reached took a judgment of dismissal and for costs by default, the plaintiff being in State prison. Edmund B. Wynn, for applt. Andrew McCarty, Jr., for respt. Held, That the imprisonment, under the statute, suspended the plaintiff's rights alone, and not the rights of others against him. Davis v. Duffie, 8 Bosw, 619; S. C. affd., 3 Keyes, 606; Morris v. Walsh, 14 Abb., 387. The sum fixed was intended not as a mere penalty, but as liquidated damages, there being but a single act to be performed by either party, and the damages being uncertain. Astley Held also, That imprisonment in v. Weldon, 2 B. & P., 346; Dakin the State prison of a plaintiff in a civil v. Williams, 17 Wend., 447; Williams suit pending at the time, does not v. Dakin, 22 Id., 201; Cothead v. I have the effect of abating the suit. O'Brien v. Hogan, 1 Duer, 664, ners. 3 Hill, 188; 43 Barb., 162, criticised and dissented from. and see 64 N. Y., 173. The right of Order appealed from reversed with suing a co-surety for a proportionate costs. part of money paid will be found to Opinion by Smith, J. All concur. have been applied to cases of liability growing out of one single transaction. of mere suretyship. 2 B. & Pull., 268; 4 Wend., 432; 2 Sand., Supr. Ct., 223. In the case at bar the stockholders are liable not for a single transaction, but for a class of debts which may be large, some of which may have been paid by one person, and some by another, and all these debts have been paid towards the common benefit. All are engaged in a common enterprise. And it is a familiar doctrine that a partner cannot sue his co-partner for their respective shares of money paid by him to a creditor. There must be an account of all the partnership affairs in order to bring into the inquiry what each has paid. Story Part., § 221. Judgment affirined with costs. Opinion by Learned, P.J.; Bockes and Boardman, JJ., concur. MUNICIPAL CORPORATIONS. LIMITATION OF ACTIONS AGAINST. him his proportionate share of the N. Y. SUPREME COURT. GENERAL judgment. The Court below held that the stockholders held the relation of partners, and that all should be parties to the action, and that an action does not lie against an individual stockholder for contribution. L. Hasbrouck, Jr., for applt. C. G. & C. McC. Myers, for respt. Held, That the relation of stockholders under the Act of 1848, at least to the extent of debts owing to laborers, is substantially that of part TERM. THIRD DEPT. McGuffin, respt., v. The City of Cohoes, applt. Decided September, 1877. The provision in the charter of the City of Cohoes (Laws of 1869, ch. 912, title 13), that an action against the city on a contract, obligation or liability, express or implied, must be brought within a year, held not to apply to an action brought against the city for a tort. The question in this case was whether a short statute of limitations in the defendant's charter availed as a defense to it in an action against it for negligence. The words of the charter were "and no action against the city on a contract, obligation, or liability, express or implied, shall be commenced except within one year after the cause of such action shall have accrued." This clause occurs in a title relating to "City Expenditures." Laws of 1869, ch. 912, title the streets at will for twenty-four hours: Helá, error. He also, from hearing them described, was allowed to testify to their loss in weight, and difference in value per head: Held, error. The action was brought to recover damages alleged to have been occasioned to cattle by their escape from defendant's lot, in whose care they were claimed to have been placed. A witness, who had been in the business of buying fat cattle, testified as to the effect upon fat cattle of getting out and wandering about, also how much fat cattle, weighing 1,500, would P. D. Niver and Matthew Hale, shrink if they were to get out of confor applt. trol, in the streets, for twenty-four C. F. Doyle and N. P. Hinman, hours. He testified he had heard the 13. The defense of the statute of limitations was overruled. for respt. Held, That the defense was properly overruled. On a fair construction of the whole title the statute does not apply to torts. The title seems to refer to the ordinary and proper business of the city, to its "expenditures," its necessary contracts, express or implied, its liabilities incurred in the due discharge of municipal business. It does not seem to refer to its malfeasance, its neglect of duties, its torts. This construction is supported by Howell v. Buffalo, 15 N. Y., 512, a case somewhat analogous. Judgment affirmed with costs. Opinion by Learned, P.J.; Bockes and Boardman, JJ., concur. EVIDENCE. N. Y. SUPREME COURT. TERM. THIRD DEPT. Schermerhorn v. Tyler. Decided September, 1877. GENERAL A witness who had not seen, but had heard certain cattle described, was allowed to tes evidence as to the cattle in suit, and Richards & Sessions, for plff. Held, That the testimony was inadmissible. If the witness had seen the cattle he might have testified to their value. The witness was not asked the actual injury, but as to the injury which would ordinarily be occasioned to such cattle by a similar exposure. To admit this was to extend the evidence of experts too far. The facts could have been proved. To prove what is the ordinary effect of such an escape is to substitute conjecture for certainty. Again, the witness having heard the owner of the cattle describe their appearance, was asked to estimate the loss on such cattle as he described. This is the duty tify to the effect upon them of wandering in of the jury. The case of McCollum v. Seward, 62 N. Y., 316, is distinguishable. There the plaintiff, having described the services which he had performed, was permitted to ask a witness what such services as he described were worth. This was only inquiring as to their marketable value. In the case at bar the witness was asked to estimate the damage. New trial granted, costs to abide the event. GUARDIAN AND WARD. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Hill, applt., v. Hanford, respt. Decided September, 1877.. The mother, who was also general guardian of a minor, paid over to her husband, his stepfather, a pension, to which the minor was entitled, for his support: Held, That such payment was valid under the circumstances. The appellant is the wife of one Opinion by Learned, P.J.; Bockes, Hill. By her former husband she J., concurs. To sustain a conviction for an assault under chap. 74, Laws of 1854, the jury must find that the assault was committed with a sharp as well as with a dangerous weapon. The defendant was indicted under chap. 74, Laws of 1854, for an assault "with a sharp, dangerous weapon, with intent to do bodily harm." The assault was committed with a blunt weapon. Held, That to sustain a conviction the assault must be committed with a sharp as well as with a dangerous weapon. This is the construction implied by the language of the Court of Appeals, in the case of Filkins v. The People, 4 W. Dig., 380. The jury in this case did not find that the assault was with a sharp weapon. The verdict therefore is in effect for an assault and battery. Judgment reversed, and case remitted to sessions for sentence, as on a conviction for assault and battery. Opinion by Learned, P. J.; Bockes and Boardman, JJ., concur. Vol. 5-No. 12.* had a son, Charles. By the death of her husband in the service of the United States she became entitled to a pension until marriage; upon which event it went to Charles until he arrived at the age of 16. After her marriage to Hill, which took place when Charles was 7 years old, the appellant, as general guardian of Charles, collected this pension from time to time, and paid it over to Iill for the board, clothing, &c., of Charles. When the latter became 16 years old, the respondent was appointed his guardian, and the appellant being ordered to account, her account showed the payment of the pension to her husband. Hill knew of the pension before he married, but testified that there was no arrangement that it was paid for the support of the child. Mrs. Hill testified that it was so paid, and that before her marriage she had said to Hill that the pension would support the boy. The surrogate disallowed the claim for the child's board. Jerome Rowe, for applt. King & Montgomery, for respt. Held, Reversing the decision of the surrogate, that the guardian was justified in applying the income of the ward to the compensation of the |