overcome the presumption by a preponderance of evidence and showing that it was without consideration. In Perley v. Perley, 144 Mass., 104, there was no question as to the form of the note. On proving the signature the plaintiff rested. Evidence was then given by each party in regard to the actual consideration; which evidence was conflicting. The court held that the burden of proving a consideration still remains with the plaintiff, notwithstanding the presumption arising from the note itself, and that if there was any evidence in the case on this point on behalf of defendant, the plaintiff must show by a preponderance of the whole evidence that the note was given for a valuable consideration. This same rule is stated in Delano v. Bartlett, 6 Cush., 364; Simpson v. Davis, 119 Mass., 269, and Powers v. Russell, 13 Pick., 69. These are cases in which a consideration was expressed in the notes by the words, "value received." Yet the court held, evidence on both sides having been given on the question of consideration, that the onus of proving consideration was upon the plaintiff on the whole case.

In this respect I think that injustice was done to the defendants. Assuming now that the writing could be given in evidence without proof of consideration, still the fact of a consideration was a part of plaintiff's case. And the burden of that proof was on him. If by a preponderance of evidence on the whole case he failed to show a consideration he could not recover. In the case

of Delano v. Bartlett, the plaintiff's counsel, relying on the note which purported a consideration and thus making out a prima facie case, requested the court to charge that the burden of proof was on defendants to establish a want of consideration. But the court refused and charged that the burden of proof was throughout on plaintiff to satisfy the jury on the whole evidence of the fact of consideration. And this was held to be correct. I think that this is a sound principle and, therefore, that it was incorrect (in any view of the note), to charge that the burden rested on the defendant of showing that the note was without consideration.

A further point is urged by defendant, viz.: that the verdict is against the weight of evidence. Ordinarily we are not disposed to interfere with a verdict given on conflicting evidence. But this case is peculiar. There is no direct evidence to the fact of the execution of the note by the testator. The only testimony is that of witnesses who had seen the testator write and who believed the note to be in his handwriting. Now such testimony of course means only that there is a very great resemblance between the writing in question and other writing which the witnesses know to have been that of the testator. The opposing testimony is of a similar character. But under the present law of the state a great number of specimens of the handwriting of the testator were produced and the jury were allowed to compare them with the disputed note. Now on such a comparison the jury have no advantage over the appellate court. The appellate court is just as able as the jury to determine whether a disputed handwriting is like other and undisputed specimens. There is no judging of the integrity and truthfulness of witnesses. And every one must see

that the opinion of witnesses as to the genuineness of handwriting is only an opinion as to resemblance.

In the present case, one witness for the plaintiff testified to his belief that three notes were in the testator's handwriting which were proved to have been written by another person a few days before the trial. An unusual opportunity of comparison was given in this case by the production of an assessment roll of 1870, containing eighty foolscap pages, all written by the testator, in which some 3,000 names are written, including the testator's, and including his surname many times. There is thus an unusually full opportunity for the appellate court to examine in detail the testator's mode of making nearly all the letters of the alphabet, capitals and small band. There has also been exhibited to us on the appeal a great number of notes drawn up by the testator payable to himself or his order, and which were originally signed by persons owing him.

I

I have given all these papers a very careful examination. ought not to comment upon them in detail lest I prejudice the parties on another trial. But I have come to the conclusion that, taking into consideration these papers and all the testimony in the case, the verdict should be set aside on the evidence. There is, I may remark, no evidence of any dealings between the parties which tends to give probability to the genuineness of the note, or to show a consideration therefor; and although the complaint alleges that this note was given for money lent by the plaintiff to the testater, nothing of that kind was shown by the slightest evidence. For these reasons the judgment and order should be reversed, new trial granted, costs to abide event.

Judgment affirmed, with costs.

THE PEOPLE, Resp'ts, v. JAMES KENNEDY et al., App'lts. (Supreme Court, General Term, Third Department, Filed September 25, 1890.) 1. CRIMINAL LAW-MISTRIAL.

Upon the trial of an indictment, the jury came into court and said they could not agree. The court asked whether they needed further instructions. In reply one juror said: " We all seem to feel that way; there is eight stand for conviction." Held, that this remark, though made in open court, could not be presumed to have constrained the jurors to an agreement through fear of public opinion, and would not justify a disturbance of the verdict.

2. SAME-INSTRUCTIONS TO JURY.

The prisoner's counsel, before the jury had agreed, and at the evening recess, said he was going to his home in another city, and would not return that night, and asked if he might be heard the next day on any motion which he desired to make. The court replied that he would attend during the evening to receive a verdict, or to answer questions of the jury, and that if the jury agreed, he would only receive their verdict. During the evening, in the absence of the prisoner's counsel, the court instructed the jury upon the law. Held, no error, within Code Crim. Pro., § 427. 3. SAME-ROBBERY-LARCENY.

A conviction of the crime of larceny is proper under an indictment charging robbery in the second degree.

APPEAL from judgment of conviction of the crime of grand larceny in the first degree under an indictment charging robbery in the second degree.

P. D. Niver, for app'lts; Andrew Hamilton, for resp'ts.

LANDON, J.-The case was given to the jury about four o'clock in the afternoon. A little later they came into court and said they could not agree. The court asked if they wanted any further instructions. One of the jurors then said: "There is eight of us stands for conviction," and was apparently about to speak further when he was stopped by the court. The jury did not ask for instructions, and upon the direction of the court retired to consider further of their verdict. The defendants were indicted for robbery in the second degree. The jury subsequently found them guilty of grand larceny in the first degree. Counsel for the defendants urges that the remark of the juror in open court may have, in some way, constrained some of the jurors to an agreement, through fear of public opinion, and thus deprived the defendants of their legal right to the unconstrained deliberation of all the jurors. This is too conjectural, and too lightly supported by probabilities to justify a disturbance of the verdict.

Before the jury had agreed upon their verdict, and about the hour of the evening recess, the counsel for the defendants stated to the court that he was about going to his home in Cohoes, about nine miles distant from the court house, and would not return again until the next morning, and asked if he might then be heard upon any motion he might make. Thereupon the presiding judge stated to him that the court would attend at the court house during the evening to receive the verdict, and answer the jury, and that if the jury should agree all that would be done would be to receive their verdict that evening, and that counsel could make any motion he desired in the morning. The jury came into court about nine in the evening and asked instructions; the defendants were present in court, but their counsel was absent. After waiting some time and it appearing that counsel had left for his home, the court gave the jury instructions upon the points submitted by them, the court directing that exceptions be entered in behalf of the defendants to such instructions.

Defendants' counsel now urges that it was error for the court to give instructions to the jury in his absence. Section 427 Code Crim. Pro., provides that the jury can be further instructed only "after notice to the district attorney and to the counsel for the defendant." We think the counsel for the defendants had all the notice that he or the defendants were entitled to under the circumstances. He had had express notice that the court would attend during the evening to answer the jury, but he deliberately absented himself. The section of the Code must have a reasonable construction, and it would be unreasonable to confer upon counsel the power to deprive the court of the right to instruct the jury, and to deprive the jury and the defendants of the benefit of such instructions, and to obstruct the administra

tion of justice, by his deliberate absence after such a notice as was here given. It has been held a sufficient notice, under a like statute, to call the counsel at the court-house door. Mc Neill v. State, 47 Ala., 498. The defendants' counsel had notice, and thus the case of People v. Cassiano, 30 Hun, 388, does not apply. The indictment was for robbery, second degree, and the verdict was grand larceny, first degree. There can be no robbery without larceny, and hence the accusation of robbery includes that of larceny, the greater including the less. The facts charged in the indictment in support of the accusation supported both the accusation of robbery in the second degree and grand larceny in the first degree. The verdict was therefore in accordance with the indictment, and for the minor offence which the greater includes. Code Crim. Pro., § 445.

Judgment of conviction and sentence affirmed.
LEARNED, P. J., and MAYHAM, J., concur.

FRANKLIN BAILEY, App'lt, v. MARY A. KINCAID, Resp't. (Supreme Court, General Term, Third Department, Filed September 25, 1890.) APPEAL LIMITATION OF TIME-CODE CIV. PRO., § 1341.

The amendment of 1890 to § 1341, Code Civ. Pro., giving thirty instead of sixty days in which to appeal to the general term, went into effect on the day of its passage, May 26. Accordingly Held, that, where the time to appeal began to run on May 6, 1890, a notice served June 30, 1890, was too late.

MOTION to dismiss an appeal to the general term.
D. J. Sullivan, for motion; A. D. Arnold, opposed.

LANDON, J.-The limitation of the right to appeal began May 6, 1890, and under § 1341, Code Civ. Pro., as then in force, would continue for sixty days. May 26, 1890, the section was amended by striking out sixty days and inserting thirty. The notice of appeal was served June 30, 1890, more than thirty days from May 6, 1890, but less than sixty days; also, more than thirty days after the amendment took effect.

The right to appeal is not a vested right. Whether a party may appeal, and if so, under what limitation as to time, are matters of legislative control. Butterfield v. Rudde, 58 N. Y., 489; Ryan v. Waule, 63 id., 57. Upon and after the amendment of the section the limitation was defined by the section as amended. Moore v. Mausert, 49 N. Y., 332; People v. Board of Assessors of Brooklyn, 84 id., 610. It is undoubtedly the rule that amendments to statutes should not be construed to have a retroactive effect unless the intention to give them that effect is plain. Matter of Miller, 110 N. Y., 216, 223; 18 N. Y. State Rep., 226. Giving due effect to that rule, the thirty days limitation would not begin to run before the amendment was passed, but would begin with the date of its passage. Such was the construction given by the supreme court of the United States to a new statute of limitations upon causes of action already accrued. Sohn v. Waterson, 17 Wall., 596. This seems to be reasonable. The repealed por

tion of the statute is no longer the law, and the amended portion is the present law. In the absence of any vested right we must give the amendment effect from the date it began to operate. The time to appeal was not exhausted under the old law, and, therefore, upon its repeal no limitation existed except under the new law; that did not begin to operate until it took effect and its operation continued thirty days.

Williamson v. Field, 3 Sand., 533, held that the provision of the Revised Statutes prescribing a limitation of ten years to suits of exclusive equitable cognizance does not apply to a right which was vested and perfect before those statutes took effect. It was held that the peculiar language of the Revised Statutes was limited to rights of action thereafter accruing.

In Goillotel v. City of New York, 87 N. Y., 441, the terms of the statute as amended were held to reserve existing limitations as to existing causes of action.

But as the appellant did not serve the notice of appeal until more than thirty days after the amendment took effect, he was still too late.

Motion granted, but without costs.

LEARNED, P. J., and MAYHAM, J., concur.

JANE HIGGINS, as Adm'rx, Resp't, v. THE VIALAGE OF GLENS FALLS, App'lt.

(Supreme Court, General Term, Third Department, Filed September 25, 1890.) 1. VILLAGES-SIDEWALKS-NEGLIGENCE.

A sidewalk, in a village which had the power and means to keep sidewalks in repair, was at the place of the accident complained of of natural rock but irregular in surface, at two places had a drop or step of eight inches extending across it irregularly, but was susceptible by slight repairs of being made safe, was part of a continuous sidewalk on a main street and had been commonly used for fifty years. Held, that the village, although the formation was natural, must be held to have accepted and adopted it as a sidewalk, and therefore was liable to one injured upon it. 2. SAME CONTRIBUTORY NEGLIGENCE.

Where the evidence fairly tends to show that the intestate fell because of defects in the sidewalk and also tends to show a possibility that he fell from other causes, the case is for the jury and their verdict will not be disturbed. (MAYHAM, J., dissents.)

APPEAL from judgment in favor of plaintiff, entered on verdict of a jury.

R. L. Hand, for app'lt; Jesse S. L'Amoreaux, for resp't.

LANDON, J.-I advise an affirmance of the judgment. This was not less a sidewalk because it was naturally fitted for the purpose and had been adopted by the public and used as such from time immemorial, instead of being an artificial one.

Natural adaptation in great part made construction unnecessary. It was upon a public and much used street, and was a section of a continuous sidewalk, of which the other portion had been constructed. It needed the removal of small irregularities upon its surface to make it reasonably safe. The village had the power