a "trustee." Plaintiff made no representations to the
agent, and there was no claim of collusion. Held, in an
action on the policy, that the conditions were waived,
and that defendant was bound, even if it was deceived
by its agent as to the condition or title of the property.
Second Division, March 8, 1892. Cross v. National Fire
Ins. Co. of New York City. Opinion by Brown, J. 11
N. Y. Supp. 948, mem, affirmed.

INSURANCE-MARINE--ACCEPTANCE OF RISK-RISKS
INSURED AGAINST.-(1) In an action upon an open
policy of marine insurance, which insured cargoes
"from place to place as indorsed hereon, or in a book
kept for that purpose," it was shown that with this
policy a book was delivered to the insured in which he
entered a certain cargo, writing "From New York
harbor" in the space for the place of lading, but leav
ing the adjoining space for the destination blank ex-
cept as the word "harbor" extended into that space;
that the book was then sent to defendant's agent, who
approved the risk by writing the word "harbor" in the
space for signature of approval, which was shown to be
the customary way of approving risks for New York
harbor; that the insured had no other open policy and
book, and that he had never received from the insur-
ance broker who acted as defendant's agent certificates
of insurance in any other company. Held, that there
was sufficient evidence to submit to the jury the ques-
tion of defendant's acceptance of the risk. It was
competent to receive evidence as to the meaning, in the
business of insurance, of the term "harbor of New
York." Nelson v. Insurance Co., 71 N. Y. 453. Upon
this issue there was evidence that the term "harbor of
New York," as used in the business of marine insur-
ance, included Tarrytown and other points within the
New York custom-house district. Other witnesses
testified that the harbor of New York did not extend
above Spuyten Duyvil, and did not include Tarry-
town. This question was submitted to the jury and
found for the plaintiff. No available error is presented
by the ruling on the question put to the witness Baker,
because he was subsequently permitted to testify as to
the meaning of the words "New York to harbor," and
fully as to all facts called for by the question. (2) The
insured had been engaged in forwarding cargoes of ce-
ment to contractors engaged in extending the Croton
water supply, and these cargoes were delivered at va-
rious points in the upper part of New York harbor.
The exact destination was not designated until after
the cargo was loaded, and the words From New York
to harbor" indicated such shipments. Defendant's
agent had insured all of these cargoes. Held, that un-
der such a practice an insurance on a cargo to be deliv.
ered at some place in the same port would not be void
because the duration of the risk was not fixed by time,
nor for a voyage between specified places. (3) The
policy insured against the perils "of the seas, canals,
rivers and fires, and all other perils, losses or misfor-
tunes that shall happen on the voyage." The insured
cargo reached its destination at 1 o'clock in the morn-
ing. The boat, which was proved to be seaworthy,
was moored at the dock, and when the tide went out
she grounded and broke in two, and the cargo was de-
stroyed. Held, that the loss was within the perils in-
sured against. Second Division, March 8, 1892. Petrie
v. Phenix Ins. Co. of Brooklyn. Opinion by Follett,
C. J. 11 N. Y. Supp. 188, affirmed.

LIBEL-ACTUAL MALICE-PUNITIVE DAMAGES. WITNESS-HUSBAND AND WIFE.-(1) In an action for libel, it appeared that defendant published matters imputing unchastity to plaintiff, and that the application was not privileged, and was false. Defendant adduced testimony to show absence of actual malice toward plaintiff, and requested the court to charge that "if the jury find that defendant was not actuated by actual

malice against plaintiff, they cannot award any damages to her for injured feelings, or mental or bodily suffering." Held, that such charge was properly refused, as it was too broad, and would have deprived plaintiff of her right to have that malice which the law imputed to the false publication weighed by the jury, in connection with the testimony on the part of defendant that the publication was not prompted by malice in determining whether such malice existed as would justify exemplary damages. A libel recklessly

or carelessly published, as well as one induced by personal ill-will, will support an award of punitive damages. Holmes v. Jones, 121 N. Y. 461. (2) Section 831, Code of Civil Procedure, provides that "a husband or wife shall not be compelled, or without the consent of the other, if living, allowed, to disclose a confidential communication made by one to the other during marriage.' Held, that in an action for libel for the publication of an article imputing unchastity to plaintiff, and suggesting improper relations between plaintiff and one S., plaintiff's husband should not be allowed to testify concerning his disputes and conversations with plaintiff about S. Parkhurst v. Berdell, 110 N. Y. 386, distinguished. Second Division, March 15, 1892. Wurner v. Press Pub. Co. Opiniou by Parker, J. 8 N. Y. Supp. 341, affirmed.

MASTER AND SERVANT-FELLOW-SERVANT.-Plaintiff was employed by a stevedore hired to unload defendant's vessel. Defendant furnished steam power and a man to run the winch. While hoisting the cargo the rope slipped from the drum of the winch, and plaintiff, while attempting to replace it, directed the winchman at the proper time to "come back," but instead of turning back, he went ahead drawing plaintiff's hand against the drum, and cutting off his fingers. Held, that defendant was liable, the winchman, though receiving his orders from plaintiff when to Lower and when to hoist, not being a fellow-servant. It is quite apparent that it was the intention of the defendant to retain charge of the steam power and winch, and operate it through its own servants and emiployees. And the fact that the winchman received orders from the plaintiff when to hoist and when to lower under the circumstances of this case, does not operate to change his relations to the defendant as its servant. Sullivan v. Railroad Co., 112 N. Y. 643, 647; Sanford v. Oil Co., 118 id. 571; Kilroy v. Canal Co., 121 id. 22; Butler v. Townsend, 126 id. 105. Second Division, March 22, 1892. Johnson v. Netherlands-American Steam Nav. Co. Opinion by Haight, J. Follett, C. J., and Parker and Landon, JJ., dissenting. 10 N. Y. Supp. 927, affirmed.

MORTGAGE - INTEREST — TENDER.-A tender by a junior mortgagee to a senior mortgagee of the amount due on the senior mortgage, with accrued costs of foreclosure, must be kept good to prevent the running of interest. In case the whole amount secured by a mortgage is due, the tender of the sum unpaid by the owner of the mortgaged premises extinguishes the lien of the mortgage, though the tender is not kept good, but it does not discharge the promise or covenant to pay the debt, for which the debtor remains liable. Kortright v. Cady, 21 N. Y. 343; Werner v. Tuch, 127 id. 217; Mitchell v. Roberts, 17 Fed. Rep. 776, 783; Haynes v. Thom, 28 N. H. 386, 400; Chit. Cont. (12th ed.) 787; Jones Mortg., $ 886. If a debtor wishes to extinguish his liability for subsequently-accruing interest, or demands some affirmative relief, he cannot retain the money subject to his own use, but must devote it to the specific purpose of paying the debt, and put it within the power of the creditor to receive it at any time. He must keep his tender good. Tuthill v. Morris, 81 N. Y. 94, 100; Harris v. Jex, 55 id. 421, 425; Gyles v. Hall, 2 P. Wms. 378; Bishop v. Church. 2 Ves.

MUNICIPAL CORPORATIONS-OBSTRUCTIONS IN NAVIGABLE STREAM-ORDINANCES.-The city of Albany is not responsible to property-owners on account of an obstruction in the Hudson river, within the city lim-Supp. 596, affirmed. its, where such obstruction was not caused by the city. The defendant did not own nor did it sink the boat. It neither caused nor in any wise contributed toward the creation of the nuisance. Therefore Brayton v. Fall River. 113 Mass. 218; Haskell v. New Bedford, 108 id. 216; Rolling Mills v. Cambridge, 117 id. 396; Franklin Wharf v. Portland, 67 Me. 46, and Sleight v. City of Kingston, 11 Hun, 594, cited by the appellant, are not in point. The liability, if any, must be founded on a duty to keep the navigable waters of the Hudson, within the city limits, free from obstruction. The obligation to keep streets and highways in a safe condition for public use cannot be invoked against the defendant here, for while the river is a highway for the passage of vessels, that portion of it which happens to be embraced within the boundaries of a city is not one of its highways, so as to burden it with the duty of removing obstructions and keeping it safe for navigation. Seaman v. Mayor, 80 N. Y. 239. The river, being a

action when her possession and that of her husband have continued through a period of three years. (2) An instrument in the form of a deed, executed by a husband on his death bed, conveying all his property to his wife, signed, sealed and acknowledged, and delivered to a physician with instructions that it should be kept for his wife until his death, and then recorded is a deed and not an attempted testamentary disposi tion of the property. Second Division, March 8, 1892. Deifendorf v. Deifendorf. Opinion by Brown, J. 8 N. Y. Supp. 617, affirmed.

RAILROADS-ELEVATED-BENEFITS TO ABUTTERS.In an action for damages to plaintiff's premises by an elevated railroad in the avenue abutting such premises, the court properly refused to find that "there has been a general rise in the value of real estate situated on the avenue, and this increase is largely attributable to the existence and operation of defendant's railroad," as such facts were immaterial where there was sufficient evidence in the case to warrant a finding that plaintiff had been damaged in his property rights by the construction, maintenance and operation of such railroad. Bohm v. Railway Co. (N. Y. App.), 29 N. Y. Rep. 802, distinguished. March 22, 1892. Storck v. Metropolitan El. Ry. Co. Opinion by Gray, J. 14 N. Y. Supp. 311, affirmed.

ELEVATED-INJURY TO ABUTTERS-EVIDENCE.

-In an action for damages to premises, occasioned by the maintenance of an elevated railway in the street on which such premises abut, evidence that the value of land on the street has not increased in the same proportion as land in the side streets is admissible, and may be considered, with other evidence, as to whether the premises in question have increased in value to the same extent that they would have done but for the presence of the road. Bohm v. Railway Co. (N. Y. App.), 29 N. E. Rep. 802, distinguished. March 22, 1892. Becker v. Metropolitan El. Ry. Co. Opinion by Peckham, J. 14 N. Y. Supp. 312, affirmed.

STREET NEGLIGENCE — EVIDENCE.

-A section of sewer-pipe standing on the edge of an excavation, and within eighteen to twenty-four inches of the rail of a horse-car track, was struck by a passing car so that it fell into the excavation and injured a workman there. Before reaching the place the driver stopped the car, and did not proceed until he was notified to do so by the foreman in charge of the workmen. Held, that it was not shown that the driver was negligent. A careful man is guided by a reasonable estimate of probabilities. His precaution is measured by that which appears likely, in the usual course of things. The rule does not require him to use every possible precaution to avoid injury to others. He is only required to use such reasonable precautions to prevent accidents as would ordinarily be adopted by careful, prudent persons under like circumstances. Barker v. Savage, 45 N. Y. 191; Ray Neg. 133. Had the pipe stood in front of the defendant's car, so that the driver could have seen that the car must necessarily strike it, a different question would have been presented. The pipe was not so placed. It was negligently placed by the employees of the contractor so near the track that it was hit by the car, but the driver standing upon the platform, looking at it from that position, could not see that his car would hit. He proceeded under the signal of the foreman, with the sup. position that the employees of the contractor had placed it a sufficient distance to permit the passage of his car, and under the circumstances, it does not appear to us that it was necessary for him to stop and measure before proceeding, and that he is chargeable with negligence because of his failure so to do. He but did what every other man would have done under like circumstances. Second Division, March 15, 1892.

Schmidt v. Steinway & H. P. Ry. Co. Opinion by Haight, J. Bradley, Vann and Brown, JJ., dissenting. 10 N. Y. Supp. 672, reversed.

SALE-RESCISSION BY SELLER-RECOVERY OF PAYMENT-RESTORATION-DEMAND.-An action to recover the value of property transferred by plaintiff to defendant, as part payment on a contract for the purchase by plaintiff from defendant of chattels, may be maintained without a previous restoration of the proceeds of certain of the chattels which plaintiff had sold with defendant's consent, and without a demand on defendant for the amount claimed, defendant having assumed to rescind the contract by retaking and selling the chattels, title to which he had by his contract with plaintiff retained as security for full performance of the contract. March 15, 1892. Brewster v. Wooster. Opinion per Curiam. 9 N. Y. Supp. 312, reversed.

RESCISSION EVIDENCE.-In an action to rescind a sale of corporate stock, defendant testified that he did not sell the stock to plaintiff; that he had no interest in the stock, and never owned it or had it in his

possession. A witness testified that he, as the agent of H., entered into an agreement with plaintiff for the sale of the stock before plaintiff had even seen defendant. An interview took place between the parties to the suit before the actual transfer of the stock, at which plaintiff claimed that defendant ratified all the representations made by such agent relative to the stock, while defendant denied that the subject of the interview had any relation to the sale of the stock. After the interview plaintiff went to the office of the company, where he handed his check for the price of the stock to defendant, and the stock was then transferred to plaintiff. The original certificates were in the possession of the company's secretary, who put plaintiff's name in the blank power of attorney thereon and then issued to him a new certificate of stock. check was payable to defendant's order, and he indorsed it and deposited it to his own credit, and paid the agent the amount of his commission. It further appeared that the stock was the property of one M., in Paris, who acted through a broker in New York, such broker; that after depositing the check, defendand defendant testified that he acted as the agent of ant sent nearly the whole amount thereof by cable to M., leaving about $800 unaccounted for. Held, that a finding that defendant did not sell the stock either personally or through such agent of H., would not be distured on appeal. March 15, 1892. Aron v. De Castro. Opinion by Peckham, J. 13 N. Y. Supp. 372, af

firmed.

The

SHIP AND SHIPPING-LIABILITY OF OWNERS-NEGLIGENCE OF PHYSICIAN.-Under the Passengers' Act of Great Britain, passed August 14, 1855, which provides that every passenger ship shall carry a dulyqualified medical practitioner, and that the owner shall furnish a proper and necessary supply of medicines, to be properly packed and placed under the medical practitioner's control, the ship-owner is not liable for injuries incurred by a passenger by taking calomel furnished by the medical practitioner through negligence or mistake, in response to a request for qui. nine. The defendant's liability must be sought for in its failure to perform the duty imposed upon it by the statute. Beyond that it had assumed none, and had none to perform, and consequently violated none, owing to its passengers. If the things which the statute required it to do were performed with due and proper care, its duty to the passengers was discharged. The obligations imposed by the statute were twofold: First, to employ a duly qualified physician; and second, to provide a supply of medicines properly packed and labelled, and suitable and necessary for disease incident to sea voyages. When these two things had

been done, and the certificate of their performance given by the government officers, the ship was permitted to proceed upon its voyage, and the medicines were from that time under the charge of the physician, to be used at his discretion. No negligence is claimed to exist in the performance of either of these daties. No evidence was offered that the supply of medicine was insufficient in quantity or quality, and the respondent's counsel concedes that the competency of the physician was established, and the court charged the jury that for his negligence the defendant was not respousible. As already stated, there was no evidence of a failure to provide an adequate and proper quantity of medicine, of good quality, and none that they were not properly packed and labelled, or that the "surgery" was not properly fitted up, or that it was an improper place for the purposes designated. When the ship-owner has employed a competent physician, duly qualified as required by the law, and has placed in his charge a supply of medicine sufficient in quantity and quality for the purposes required, which meet the approval of the government officials, and has furnished to the physician a proper place in which to keep them, we think it has performed its duty to its passengers; that from that time the responsible person is the physician, and errors and mistakes occurring in the use of the medicines are not chargeable to the ship-owner; and that no different rule is applicable to such mistakes as are the result of improper arrangement in the care of the medicines than to those which are the result of errors in judgment. The work which the physician does after the vessel starts on the voyage is his, and not the shipowner's. It is optional entirely with the passengers whether or not they employ the physician. They may use his medicines or not, as they choose. They may place themselves under his care, or go without attendance, as they prefer, and they determine themselves how far and to what extent they will submit to his control and treatment. The captain of the ship cannot interfere. The physician is not the ship-owner's servant, doing his work, and subject to his direction. In his department, in the care and attendance of the sick passengers, he is independent of all superior authority except that of his patient, and the captain of the ship has no power to interfere, except at the passenger's request. These views find support in Laubheim v. Steamship Co., 107 N. Y. 229, and in O'Brien Second v. Steamship Co. (Mass.), 28 N. E. Rep. 266. Division, March 8, 1892. Allan v. State S. S. Co., Limited. Opinion by Brown, J. 8 N. Y. Supp. 803, reversed.

STATUTE OF FRAUDS-DEBT OF ANOTHER-PURCHASE BY ARBITRATOR-PUBLIC POLICY-OBJECTIONS NOT RAISED BELOW.-(1) An oral agreement by one of the appraisers appointed to assess the value of insured goods damaged by fire, to purchase the goods from the owner, and pay the price to the insurance company, such sum to be included in the final award, or if such company became insolvent within sixty days, to pay same to the owner directly, is not within the statute of frauds, as a promise to answer for the debt or default of the insurance company. (2) The facts that the purchaser was an arbitrator, and that he agreed to pay a sum equal to the value of the goods before the fire, do not render the contract so opposed to public policy that the Court of Appeals will declare it void where the objection was not raised below. Second Division, March 15, 1892. Goodman v. Cohen. Opinion by Vanu, J. Follett, C. J., and Landou, J., dissenting. 8 N. Y. Supp. 859, affirmed.

VENDOR AND PURCHASER-INCUMBRANCES-RIGHTS OF PURCHASER.-(1) A contract to sell land stated that a mortgage on the property, assumed by the purchaser, had five years to run when in fact it had only three.

Three days before the day set for completing the purchase the purchaser discovered the error, and notified the vendors that he would insist on an extension of the mortgage, and refused to extend the time of closing. Five days after the date set for closing the purchaser made a contract for the purchase of other land, and three days later the vendors tendered an extension of the mortgage and a deed to the property. Held, that the purchaser was justified in refusing to complete the purchase after the time specified in the contract, and was entitled to recover from the vendors money expended about the purchase. (2) The purchaser was not required, in lieu of the contract in respect to the mortgage, to accept security against damage by reason of the maturity of the mortgage two years earlier than represented. Although the time may not necessarily be of the essence of a contract for the sale of real estate, it is treated in this State as material in such sense that unreasonable or unexcusable delay of one of the parties to it may deny to him relief, and when, during his default or delay, circumstances have intervened which will render subsequent performance by the other party prejudicial or detrimental to him, those facts are properly matters of consideration, and will ordinarily relieve him from the obligation of the contract. Bank v. Thomson, 55 N. Y. 7; Day v. Hunt, 112 id. 191; Hubbell v. Van Schoening, 49 id. 326. Second Divis ion, March 8, 1892. Schmidt v. Reed. Opinion by Bradley, J. 9 N. Y. Supp. 705, affirmed.

WHARFINGER-NEGLIGENCE.-In an action to recover damages for injury to plaintiffs' barge and cargo while moored at defendant's wharf, it appeared that the water at the wharf was so shallow that at low tide the barge rested on the bottom, which sloped downward from the dock, causing the barge to overturn. The barge had been moored at the wharf, and resting on the bottom at low tide, for ten days before the accident, and there was evidence that the water was as deep at low tide as plaintiffs' employee in charge of the barge had said was necessary for its safety. Held, that it was not error to refuse to instruct the jury that "if the defendant made the statement that this place was all right, the plaintiffs had a right to rely on that statement. Second Division, March 8, 1892. Vroman v. Rogers. Opiniou by Bradley, J. 5 N. Y. Supp. 426,

affirmed.

WILLS CONSTRUCTION-ESTATE DEVISED.-Testator devised to his step-daughter W., and to his daughter C., each a third of his land, and then gave to his wife B. one-third; "that is to say, her dower right of my estate." The person referred to as his wife was not legally such, she having previously been married to a person to whom a divorce had been granted with a restriction on her remarriage. W. was the daughter of B. by her divorced husband, and C. was born of the cohabitation of testator and B. He had no heir to whom the remainder would descend if it were held that B. took only a life estate. Held, that testator would be considered to have intended that she take a third in fee. The law favors a construction which will prevent partial intestacy. Redfield in his work on Wills says: "The courts have for a long time inclined very decidedly against adopting any construction of wills which would result in partial intestacy, unless absolutely forced upon them. This has been done partly as a rule of policy perhaps, but mainly as one calculated to carry into effect the presumed intention of the testator, for the fact of making a will raises a strong presumption against any expectation or desire on the part of the testator of leaving any portion of his estate beyond the operation of his will." Vol. 2, p. 442. This proposition has also received attention in Lyman v. Lyman, 22 Hun, 261-263; Vernon v. Vernon, 53 N. Y. 350-361; Provoost v. Calyer, 62 id. 545, and Byrues

v. Baer, 86 id. 210-218. If the words "that is to say, her dower right" were omitted the devise would unquestionably carry the fee. For the reasons already given the conclusion is reached that they were not employed for the purpose of restricting or cutting down the estate, and the clause should accordingly be read as devising to Babetta the fee of an undivided onethird of testator's real estate. Second Division, March 8, 1892. Schult v. Moll. Opinion by Parker, J. 10 N. Y. Supp. 703, affirmed.

WILLS-INTEREST OF LEGATEES. -Testator, after giving six legacies, bequeathed $8,000 to his executors, to be held in trust for the use and benefit of his sister J. during her life, and to be divided between her two daughters at her death, and then directed that the residue of his estate should be divided "among the legatees mentioned in this my will, ** * * share and share alike. * **" Held, that the residuum should be divided into seven equal shares, one of which should be given to the executors and held by them on the same trust as the legacy of $8,000, which they were required to hold for the benefit of J. and her daughters. The first thing which impresses us upon reading the will is the absolute impartiality of the favors shown by the testator to the different collateral branches of his family in disposing of the bulk of his estate. Each branch is given, through its chosen representative, exactly the same sum. It is not to be inferred that the testator intended to break up this equality of distribution in disposing of the residuary estate. For some undisclosed reason, he selected his executors as the recipients, in the first instance, of the legacy given for the benefit of Mrs. Clanny and her daughters, and it is probable that the same reason would have been equally potent in determining the direction which the share of the residuary fund intended for her family should take. It is not likely that he would have given to them, unprotected by any trust, a sum which, if the appellant's contention is upheld, would amount to nearly one-half of the legacy in trust. It is also to be observed that the main object of the conversion of the real estate into money is to provide the funds for the payment and discharge in full of the several legacies given in the previous provisions of the will, one of which is the legacy to the executors, and when in the same clause he directs that if, after the satisfaction of such legacies, there should be any residue, it should be equally divided between the legatees mentioned in the will, he evidently had in mind the same persons to whom the general legacies were to be paid, who in the fifth clause, as we have seen, are the executors as trustees, and not the beneficiaries of the trust. March 15, 1892. In re Logan's Estate. Opinion by Maynard, J. 16 N. Y. Supp. 737, modified.

TESTAMENTARY POWERS-NATURE OF ESTATE.

-A testator gave his wife the use and income of onethird part of a house and lot for her life, and authorized his executors to lease the remaining two-thirds of said house and lot, to pay all taxes, expenses and repairs thereon, and to divide the residue of the income thereof among the testator's children. Held, that the executors had power to rent the entire house, but that all the taxes, expenses and repairs should be taken out of the children's two-thirds of the rent, especially where that construction of the will has been acquiesced in for years by all the interested parties. Second Division, March 8, 1892. Starr v. Starr. Opinion by Haight, J. 7 N. Y. Supp. 580, affirmed.

WITNESS-TRANSACTIONS WITH DECEDENT-ACTION ON NOTE.-It appearing in an action against G., as indorser of a note, that it was made payable to him by P., and that it was one of several given by P., G. and others, in payment for certain rights purchased of H., who was dead, G. was incompetent, under the Code of

CONSTITUTIONAL LAW RIGHT TO JURY TRIAL. CRIMINAL LAW-FALSE PRETENSES--OBTAINING BOARD BY FRAUD.-(1) The first section of the act under which this prosecution is had is as follows: "Every person who shall obtain board or lodging in any hotel or boarding-house by means of any trick or deception, or false or fraudulent representation or statement or pretense, and shall fail or refuse to pay therefor, shall be held to have obtained the same with the intent to cheat and defraud such hotel or boarding-house keeper, and shall be deemed guilty of a misdemeanor." We do not think this act denies the accused the right of trial by jury of any fact constituting an essential element of the crime denounced by it. The crime consists in obtaining board or lodging by a trick, etc., and failing to pay therefor. It must be left to the triers of the fact whether the board was so obtained and not paid for. These facts when proved are declared by this act to be evidence of an intent to cheat and defraud, and this the Legislature had the power to do. Com. v. Williams, 6 Gray, 1; State v. Hurley, 54 Me. 562; State v. Day, 37 id. 244; Bish. St. Cr., $1050; Whart. Crim. Ev., § 715; 26 Alb. L. J. 63, and cases cited. It may be conceded that the Legislature has no power to create artificial presumptions of guilt, but the act in question does not do this, nor attempt to do it. No affirmative right of the citizen is denied or taken away. It is morally wrong to obtain board by means of a trick or deception, or false or fraudulent [representation or statement or pretense," and hence it is competent for the law-making power to declare it a crime and provide for its punishment. State v. Burgdoerfer (Mo. Sup.), 17 S. W. Rep. 646. A presumption of an intent to cheat and defraud, arising from the fact that board is obtained by means of a trick, etc., is not an artificial but a probable and reasonable one, and the authorities above cited are to the effect that such a presumption may be declared by statute. (2) The trial court ought to have directed the jury to acquit defendant on the evidence, which shows that she registered at the Southern Hotel July 29, 1891, and was assigned to a room. On July 31 she sent for the manager of the hotel, and rented a room as a studio, stating she was an artist, and inquired as to the time of payment of bills, and stated "that it would be inconvenient for her to pay at the end of a week, for the reason that she expected a remittance, which would come to her at the end of two weeks, and she wanted to know if she couldn't arrange so that she might pay at the end of two weeks." The manager assented to this, and she asked him if the check which she was to receive would be accepted in payment for her board. He told her it would. He did not ask her nor did she tell him the name of the person from whom she expected the remittance. The bill for board was made out at the end of two weeks. She wrote a note saying it would be paid next day without fail; that her remittance had not come as she expected, but thought it would certainly be there that evening. The remittance did not come, and failing to pay her board she was in two or three days excluded from her room, and was not thereafter permitted to get meals at the hotel. During her stay there she had taken to her studio paint materials and easels worth about $30, and