The circumstances attending the giving of this receipt were these: Roberts, who was an employe in the works of which Banse, Sr., was superintendent, had sued Banse for slander and recovered a judgment for $75. A day or so after and before Banse had actually taken the "appeal he was then talking of taking" Roberts came to Banse's office and stated to Banse, Jr., whom he found there, that he wanted to settle the case out of court so that it would not be taken any further. Twenty dollars was agreed upon as the sum for which Roberts would settle the judgment, which was paid over to him in the presence of two fellow-workmen as witnesses called in for that purpose to whom Roberts expressed his satisfaction with the settlement of the suit he had thus made. Banse, Jr., notified his father's lawyer that the suit was settled, the appeal was dropped, and Banse, Jr., was reimbursed the $20 by Banse, Sr., and so the matter rested until the year 1908, when execution was issued upon the judgment. At this period Banse's right of review was gone by lapse of time. We find these facts from the testimony, and also that the abandonment of what the parties called "the appeal" was in effect at the request of Roberts and was understood by both parties to be part of their settlement. On these facts there would be no question as to the defendant's right to have this judgment canceled were it not for the legal rule illustrated in Chambers v. Niagara Fire Insurance Co., 29 Vroom 216, viz., that the payment of a less sum in satisfaction of a larger one is no satisfaction. This rule, however, as was said by Mr. Justice Van Syckel in Line v. Nelson, 9 Id. 358, "has been constantly departed from upon slight distinctions" as is generally the case with a technical rule that is not, on the whole, conducive to sound morals.

To the many other grounds of departure that have been recognized there should be added: that if the debtor, in addition to the payment of a part of the debt as an agreed satisfaction of the whole, does at the request of his creditor some substantial thing of detriment to his interests that he was not bound to do, upon the mutual understanding that it was

49 Vroom.

Silber v. Public Service Railway Co.

an additional consideration for the creditor's promise to accept. the less for the larger sum, legal effect may be given to such compact of the parties if the debtor has fully performed his part thereof to his detriment. Both on the ground of a new consideration and on that of estoppel an agreement thus made and performed should obtain legal recognition.

Illustrative cases of the rule in question and its exceptions will be found in 1 Cyc. 319 et seq., and in 1 Am. & Eng. Encycl. L. 413.

In the present case the dropping of appellate proceedings was a moving cause, and the defendant in consequence of his full performance of an honest compact has deprived himself of his right of review. This, we think, justifies us in carrying out the compact of the parties by ordering that the judgment be canceled and the writ of execution quashed.

That will be the rule, with costs.

ISAAC SILBER v. PUBLIC SERVICE RAILWAY COMPANY.

Submitted March 13, 1909-Decided June 29, 1909.

1. The trial court may in its discretion allow the opening counsel to make a second address to the jury although no reply to his first address was made; when such second address has been made it is error to refuse to permit defendant's counsel to reply to it.

2. New York and Long Branch Railroad Co. v. Garrity, 34 Vroom 50, followed.

On appeal.

Before Justices GARRISON, BERGEN and VOORHEES.

For the appellant, Edwards & Smith.

For the appellee, Aaron A. Melniker.

Silber v. Public Service Railway Co.

The opinion of the court was delivered by

78 N. J. L.

GARRISON, J. This appeal presents two questions touching the rights of counsel in summing up to the jury, or rather it presents two phases of the same question. What happened at the trial thus appears in the state of the case:

"The Court-Counsel may sum up.

"Mr. Morton-We request an opening from the plaintiff. "The Court-I want to know if you have any further rule on that.

"Mr. Melniker-In order to avoid any question I will open. "[Mr. Melniker opens the case to the jury.]

"Mr. Morton (after Mr. Melniker has finished his argument)-We have no argument to make; we have a written request that the jury bring in a special finding.

"Mr. Melniker-If there is a request for an instruction, I desire to sum up.

"Mr. Morton-We object to his further summing up, on the ground that he has already summed up, and the matter has been presented to the jury.

"The Court-You may proceed, Mr. Melniker.

"Mr. Morton-Will your honor allow me an exception to the permission granted to the attorney for the plaintiff to further sum up on the ground that there has been no argument on behalf of the defendant, and, therefore, nothing for the plaintiff to reply to.

"The Court-The attorney is not to open and reply, but to open and close.

"Mr. Morton-I ask an exception.

"[Exception allowed. Let it be sealed, and it is sealed accordingly.]

"FREDERIC E. CHAMBERLAIN, [L. S.]

"Judge of the District Court of the City of Bayonne. "[Mr. Melniker then addresses the jury at length.]

"Mr. Morton (after Mr. Melniker has summed up to the jury)-I desire to have the privilege of summing up to the jury for the defendant.

"The Court-You have already stated that you didn't wish to address the jury. I consider this the closing, and therefore you have waived your right.

“Mr. Morton—Does your honor refuse to allow me to address the jury?

"The Court-I do."

Counsel for appellant by his specifications complains of the action of the trial court-first, in allowing plaintiff's counsel to address the jury twice, and second, in refusing to allow defendant's counsel to reply to the second address to the jury.

The action of the trial court was right in the first respect and wrong in the second, and in both respects is covered by the decision of this court in New York and Long Branch Railroad Co. v. Garrity, 34 Vroom 50.

The judgment of the District Court of Bayonne is reversed.

THE STATE, DEFENDANT IN ERROR, v. MICHAEL RAYMOND, PLAINTIFF IN ERROR.

Submitted December 5, 1908-Decided April 23, 1909.

1. If upon the trial of an indictment the state fails to make a prima facie case of the charge against the defendant, it is legal error to deny a motion for the direction of a verdict made at the close of the case.

2. Quære.

Whether the failure of a person to disclose to the public officials a crime with the commission of which he himself is charged is a criminal offense under section 20 of the Crimes act (Pamph. L. 1898, p. 799)?

On error to the Atlantic Sessions.

Before Justices GARRISON, PARKER and VOORHEES.

For the state, Clarence L. Goldenberg.

State v. Raymond.

The opinion of the court was delivered by

78 N. J. L.

GARRISON, J. The refusal of the trial court to grant the motion for the direction of a verdict for the defendant made at the conclusion of the entire case was legal error for which the judgment brought up by this writ of error must be reversed.

The defendant was indicted under section 20 of the Crimes act (Pamph. L. 1898, p. 799) for that "having actual knowledge that one Joseph Labriola did in and upon one John Buglio in the peace of God and this state, and there being an assault did make, and he the said Joseph Labriola then and there did willfully, feloniously and of his malice aforethought kill and murder, and other wrongs to the said John Buglio then and there did to the great damage of the said John Buglio, did conceal the same, and did not, as soon as may be, disclose and make known the same, to some one of the justices of the Supreme Court, or a judge of the Court of Quarter Sessions or a magistrate, contrary to the form of the statute in such case made and provided, and against the peace of this state and government and dignity of the same." The language of this indictment follows that of the statute.

At the trial it was proved on the part of the state that Raymond had voluntarily made a written statement of his knowledge touching Labriola's murder of Buglio to Frank G. Lore, a state detective employed on the case by the prosecutor. This negatived his concealment of the murder. The prosecutor then called as witnesses two justices of the peace who testified that Raymond had not disclosed said murder to them, after which Mr. Abbott, the prosecutor, announced his inability to prove that Raymond had not disclosed the crime in question to some one of the other officials named in the statute and in the indictment. This was an admission by the state that it had not proved the charge laid in the indictment. The trial court erred therefore in its refusal to direct a verdict for the defendant when requested so to do.

It must not be assumed that but for this trial error the judgment would be valid. There is a doubt in our minds whether the statute in question applies at all to the failure of