tees of Schools, 102 Ill. 489; s. c., 40 Am. Rep. 606: Henry v. State, 26 Ark. 523. The amount of the fee or the fact that it will become a part of the public revenue does not constitute it a tax. State v. Hipp, 38 Ohio St. 225; State, ex rel. Troll v. Hudson, 78 Mo. 305. Most of the State Constitutions provide that all taxes shall be uniform-there must be no discrimination. City of St. Louis v. Spiegel, 75 Mo. 145; Adams v. Lindell, 72 Mo. 198. Where all trades and professions are taxed alike, and all persons engaged in the same business are subjected to like regulations, the tax is equal and uniform. American Express Co. v. St. Joseph, 66 Mo. 675; City of St. Louis v. Sternburg, 69 Mo. 289, 301; Glasgow v. Rowse, 43 Mo. 479. Whatever discriminations are made in taxation ought to be made in the direction of making the heaviest burdens fall upon those things which are obnoxious to the public interests whenever that is practicable. Youngblood v. Sexton, 32 Mich. 406. In City of St. Louis v. Green, 6 Mo. App. 591, it is said that the Missouri constitutional provisions, as to the equality and uniformity of taxation, apply to property, and not to taxes on privileges or occupations.

"In adjusting the tax to be charged it is proper and reasonable to take into account, not the expense merely of direct regulation, but all the incidental consequences that may be likely to subject the public to cost in consequence of the business licensed. In some cases the incidental consequences are much the most important, and indeed are what are principally had in view when the fee is decided upon. It can

not be questioned, therefore, if it be licensed by the public authorities, that it is legitimate and proper to take into account all the probable consequences, or that the payment exacted should be sufficient to cover all the incidental expenses to which the public are likely to be put by means of the business being carried on. And all reasonable intendment must favor the fairness and justice of the fee thus fixed; it will not be held excessive unless it is manifestly something more than a fee for regulation." Cooley on Tax., 410. See Youngblood v. Sexton, 43 Mich. 406; Thompson v. State, 15 Ind. 449; Commonwealth v. Byrne, 20 Grat. 165; Straub v. Gordon, 27 Ark. 625; Ash v. People, 11 Mich. 347; Falmouth v. Watson, 5 Bush 660; Durach's Appeal, 62 Pa. St. 491; Burch v. Savannah, 42 Ga. 596; Johnson v. Philadelphia, 60 Pa. St. 445. EUGENE MCQUILLIN.

blockaded, and the vessel not be able to get into that port, the vessel is to proceed to the next nearest open port to discharge her cargo." On arrival at Arica on the fifth of April, that port was found to be blockaded, and the vessel was ordered by the agents of the charterer to Callao, which was then open, but was blockaded the day before the vessel arrived there. The agents thereupon directed the vessel to go to Ancon, 10 miles north of Callao, a place which had never before been made a port of entry, and which had no facilities for discharging cargo, in consequence of which great delays were occasioned. When about half the cargo had been discharged, Ancon was blockaded, and the vessel went to Chancay, where there was further delay, and a little more discharge of cargo before that port also was closed. . After further hindrances, the discharge was finally completed on the twenty-fifth of August at Arica, where the blockade had been raised. Libelants claimed that "customery dispatch," in general, on the cost of Peru was such that the S. should have been discharged at Ancon by May 12th, whereas her discharge was not completed at Arica until nearly 125 days later, for which demurrage at the rate of £15 per day was demanded. Held, that the expression "customery dispatch," in unloading, is the dispatch customery at the place of discharge. At the extemporized ports of Ancon and Chancay there was no custom. As, in using the phrase "at the next nearest open port," the parties could not reasonably have had in view any such places as Ancon or Chancay, the "customary dispatch" of large ports, such as Arica or Callao, could not be exacted in this case at new and extemporized ports, which were substituted by necessity, and not from choice, as places of delivery, to prevent the defeat of the voyage, and that the obligation of the consignees, as respects discharge in those places, would be that of reasonable diligence only. 2. As the consignees designated Callao, 600 miles north, for the place of discharge after Arica, and the captain of the S. acquiesced, held, that the provisions of the charter as to the "next nearest port" had been waived. There was no provision in the charter for a substituted port in case the "second port" should also be blockaded. held, therefore, that upon the blockade of Callao the situation became the same as if Callao had been the only port of discharge named in the charter, with no reference to the contingency of blockade. 3. English and American decisions reviewed as to the effect of the blockade of the port of destination of a vessel on the obligations of her charter-party. 4. The obligations of the ship in such circumstances considered under the codes of various foreign nations. 5. Under our law, a blockade that prevents both parties from performing their concurrent obligations as to receipt and delivery of cargo dissolves the specific contract. If the master cannot then obtain the instructions of the shipper, he must act for the best interests of all concerned; he will receive freight or no freight, according to the beneficial services rendered, and neither party can claim damage for delay or defeat of the voyage under the original contract. Whether a specific contract among neutrals to run a blockade should be enforced in the absence of any municipal law or treaty forbidding it, quære. 6. If, on blockade of the port of destination, a delivery of the cargo is made elsewhere, it will be a question of construction whether the new place of delivery is to be deemed a mere substitute for the former, or whether the minor incidents of the charter are to be deemed superseded. Such delivery elsewhere

is pro tanto a new contract, and, under the compulsory selection of a totally different place of discharge from the place named in the charter, in order to prevent a defeat of the voyage, the incidental stipulations of the charter, as respects demurrage or rate of discharge, will not necessarily be deemed preserved by mere implication at the substituted place of delivery. And where the circumstances make such an implication unreasonable, it will be rejected, and the obligations of each party construed to be to use reasonable diligence only in the delivery and receipt of cargo. 7. The master, in proceeding from one port to another that lacked necessary launches for discharge, having refused to take in tow for his use a launch tendered by the charterer's agents, held an unreasonable refusal that barred any claim for delay until other arrangements were made. S. In view of the disturbed state of affairs on the coast, held, on the evidence in this case, that the consignees had, in general used reasonable diligence, with the exception of nine days, for which demurrage was allowed. [In this case there is a very learned and elaborate opinion by Mr. District Judge Brown, too long, we regret to say, for publication in our column in full, and of such a character that a single extract would not do justice to it.-ED. C. L. J.] The Spartan, U. Dist. Ct. S. D. N. Y., July 24th, 1885; 25 Fed. Repr. 44.

2. ASSIGNMENT FOR CREDITORS. [Estoppel.] Assignee cannot Challenge Previous Conveyances of Assignor-Where a debtor makes a general assignment for the benefit of his creditors, the assignee cannot challenge any previous disposition of his assignor's property unless expressly authorized by statute. In giving the opinion of the court in this case Mr. Circuit Judge Brewer said: "It is further urged in support of this demurrer that ample remedy is at law and in the State courts, through the assignee, and under the provisions of the assignment statute. I think not. The assignee takes that which the assignors gives him, no more, no less. Unless expressly authorized by statute, as he was in the bankrupt act, as he is in some States though not in this, he may not challange any conveyance or disposition of the property by his assignor. He does not represent the creditors. He is the voluntarily appointed agent of the assignor to take the property put in his hands and dispose of it. So he cannot say: "My assignor has fraudulently disposed of property; he has given it away; he has done something to wrong the creditors;" because that is none of his business. Any one who feels any interest in this question will find, in a recent decision of Judge Shiras, reported in one of the late volumes of the Reporter, a full discussion thereof. Sandwich Manuf'g Co. v. Wright, 22 Fed. Rep. 631. The assignee cannot challenge these confessions. He cannot say they were fraudulent. He cannot recover the property, and no remedy is afforded under the assignment act to creditors. Their only remedy is in a court of equity."] Clapp v. Nordmeyer, U. S. Cir. Ct., E. D. Mo., Oct. 1, 1885; 25 Fed. Repr. 70.

desired to prefer, confessed judgment in favor of such creditors and had judgment entered against them for the amounts due and executions issued and levied on all of their assets, and thereafter, but on the same day, made a general assignment, subject to said judgments and executions, of all their property, and the firm's assets were sold under said executions, and all the proceeds paid by the sheriff into the hands of A., the attorney of the judgment creditors, held, that said confessions of judgment and said general assignment are to be regarded as part of one instrument, and as together making one voluntary assignment for the benefit of creditors within the meaning of Rev. St. Mo. § 354, and that A. holds the proceeds of said sale for the benefit of all the creditors of said firm. [In so holding Mr. Circuit Judge Brewer said: "As will be seen, this brings the case very clearly within the principle of the cases of Clapp v. Dittman, and Perry v. Corby, decided a few months ago. In those cases I felt constrained to follow the ruling which had been laid down by my predecessor, at the same time saying that I did not believe that the ruling was right. The question was subsequently presented to Mr. Justice Miller, presiding justice of this circuit, and he agreed with my predecessor. Of course, that settles the law in this circuit, so far as this court is concerned, until either the Supreme Court of the State or the Supreme Court of the United States rule differently and I am happy to say that in the Western district of this State a case was decided at the spring term involving this question, which has been taken to the Supreme Court for its ruling. The principle laid down in the cases referred to was that where a debtor, being insolvent, by any instrument disposes of all his property, such instrument must be treated as tantamount to a voluntary assignment for the benefit of his creditors, and all share alike in the proceeds of the property conveyed. As I said then, and say now, I do not believe this is the right construction of the statutes of this State. Your Supreme Court has held that a debtor may prefer one creditor to another. That right existed at common law. It is part of the jus disponendi that follows from the ownership of property, and, except as expressly limited by statute, ought always to be recognized. I do not think the legislature of this State has attempted to restrict that right except in what are technically voluntary assignments. This case is a little stronger than those cited, because the bill alleges that the confession and the assignment were part and parcel of the same transaction, all done on the same day, all done by a debtor consciously insolvent, with the purpose of disposing of all of his property. So they may fairly be regarded as parts of one instrument, and as together making one voluntary assignment for the benefit of creditors, and in which all the creditors are entitled to share alike." See the observations on this doctrine, 20 C. L. J. 83.]-Ibid.

4. LIMITATIONS. [Executors and Administrator.] Statute applied by way of Analogy in Pennsylvania Orphan's Court.-Where a claim is presented after six years from the granting of letters testamentary, the orphans' court may apply the statute of limitations, by way of analogy, to defeat the establishment of such claim. York's Appeal, S. C. Pa., Oct. 5, 1885; 1 Atl. Repr. 162.

5. NEGLIGENCE. [Municipal Corporation.] What Inclination in a Sidewalk is not a Defect.-An inclination of three and three-fourths inches in a

distance of two and one-half feet, in a plank sidewalk in a city of 800 inhabitants, is not such a defect as will render the city liable for personal injuries alleged to have been caused in part thereby. [The opinion of the court on this point by Cole, C. J., is as follows: "We are of the opinion that the charge of the learned circuit court did not fairly submit the question as to the defect in the sidewalk. In the complaint it is alleged that the walk was defective in that it was improperly constructed, so that its surface was uneven, and sloped sharply downward, thus forming a steep inclined plane, and had no slats nailed crosswise thereon to prevent travellers from slipping, while passing along the same. A further insufficiency is alleged that at this spot there was a dangerous hole or opening through the planks about twelve inches long and four inches wide, at the widest place in which hole the plaintiff's right foot was caught, and she was thrown down and injured. The walk was constructed of plank two inches thick, and eight or ten inches wide, which were placed crosswise on stringers two by six inches, laid lengthwise of the walk. The evidence on both sides as to the slant in the walk was that there was a decline of about three and three-fourths inches in a distance of two and one-half feet. This decline or slant came to within about eight inches of the hole in the walk. Now there is a strong implication, if not a clear direction, in the charge that a walk constructed with a slant of from three to three and three-fourths inches in two feet and a half would be a defect. We are unwilling to sanction so strict a rule of liability on the part of the defendant. The defendant is a city of about 800 inhabitants. Its resources are doubtless inadequate to bring all of its walks to a dead level, and the law does not impose upon it any such duty. In Cook v. Milwaukee, 27 Wis. 191, it was held that a flag-stone leading across à gutter from a sidewalk into the street, which had an inclination of about an inch in a foot, did not constitute a defect. In Hill v. Fond du Lac, 56 Wis. 242, s. c. 14 N. W. Rep. 25, the trial court refused to instruct that the mere fact that there was a declivity in the sidewalk of six inches in two feet did not show such a defect in the street as would render the city liable for an injury alleged to have resulted in part from that cause. It was held there was no error in this ruling, but that all the facts as to the exact condition of the walk, and as to whether such condition constituted a defect, were properly submitted to the jury. The cases above are not at all in conflict, as a moment's reflection will show."] Schroth v. City of Prescott, S. C. Wis., Sept. 22, 1885; 24 N. W. Repr. 405.

6.

[Defective Highway.] Injury to Traveller deviating from Travelled Path.-A ditch or washout in the originally travelled track of a highway had diverted travel to each side thereof but no barriers had been erected. Plaintiff, though familiar with the road, while driving on a dark night mistook his location, and in attempting to pass to one side ran into the ditch and was injured. Held, upon the evidence, that the highway was defective, and that the question of contributory negligence was properly submitted to the jury. [In the opinion of the court by Lyon, J., it is said: "The jury found that the highway was defective and insufficient, and that the injuries complained of were caused thereby. Also that the plaintiff, when injured, was exercising ordinary care to avoid the injury. The defect consisted of a ditch

or washout in the track originally traveled, and the travel passed the same on both the east and west sides thereof. There was no barrier to warn travelers of the ditch, and it had been there a long time. The plaintiff was driving his team along the highway on a dark night, and after he had passed the point where the east and west tracks diverged, going towards the ditch on the east track, he reined his team to the right to get upon the west track, which he deemed the safer of the two. He could not see the ditch, and, although familiar with the road, he supposed he was six or eight rods distant from the ditch. He mistook his position, and was so near the ditch that, as he turned, the left forward wheel of his wagon ran into it, threw him from the wagon, and he thereby received the injuries complained of. He was driving on a walk with a tight rein, was endeavoring to avoid the ditch, and his team stopped as soon as he was thrown out, and remained standing. We think the evidence is conclusive that the highway at the point of injury was defective, and had been so for a long time, and that such defect was the proximate cause of the injury. Also that the question whether the plaintiff was or was not guilty of any of any negligence contributing directly to the injury was properly submitted to the jury. Under numerous adjudications by this court, it cannot properly be held that the evidence conclusively proves the plaintiff guilty of any want of reasonable and proper care."] Hart v. Town of Red Cedar, S. C. Wis. Sept. 22, 1885; 24 N. W. Repr. 410.

7. PARTNERSHIP. [Services of Partner]. Partner may not Recover of Firm for Services.-A partner cannot recover for services rendered a firm of which he is a member, unless there is some agreement to that effect. [Elliott, J., in the opinion of the court, says: "It is the duty of a partner to devote his services to the business of the firm without compensation, except such as arises from the profits, unless there is some stipulation to the contrary. Pars. Partn. (2d Ed.) 250; Story, Partn. (7th Ed.) § 182; Lee v. Davis, 70 Ind. 464; Lassiter v. Jackman, 88 Ind. 118."] McBride v. Stradley, S. C. Ind., Oct. 6, 1885; 2 N. E. Repr. 358.

8. PRACTICE IN U. S. COURTS. [Mandamus]. Federal Courts should Conform to State Courts in Issuing.-A Federal court should not issue a mandamus ordering the mayor of a city to collect a tax for the payment of a judgment against the city, without an execution having first been issued and returned unsatisfied in whole or in part, where the statutes of the State in which the court is held only permit a mandamus to be issued by State courts after an execution has been so returned. [Mr. Circuit Judge Brewer cites Desty, Fed. Proc. § 914; U. S. v. Keokuk, 6 Wall. 514; Moran v. City of Elizabeth, 9 Fed. Rep. 72]. Laird v. Mayor of De Soto, U. S. Cir. Ct., E. D. Mo., Sept. 30, 1885; 25 Fed. Repr. 76.

9. PRACTICE. [7rials]. What a Witness Testified to is a Question for the Jury.-When an official reporter is not present at a trial to take down the exact words, the court having made no minutes, -and counsel disagree as to what a witness said on a matter material to the issue, it is not only proper for the court to submit the question to the jury, but it is its duty to do so; and this is so, although the defendant moved for a non-suit on the ground of variance. [In delivering the opinion,

10.

the court, speaking through Walker, J., said: "We think the county court committed no error in its action in respect to the controversy, as to what the plaintiff testified to in his cross-examination. There was manifestly no other safe course for the court to have adopted. There was no official reporter present, who had taken down the plaintiff's testimony; the court had taken no minutes of his cross-examination; and counsel disagreed as to what was actually said by the plaintiff, and as to what the plaintiff meant to be understood as saying by what he did say. The court had not the means of determining what the plaintiff said, nor what he meant to be understood as saying by what he did say without making itself the trier of the fact. What other safe course could have been taken? The plaintiff's testimony had reference to the contract on which the plaintiff relied for recovery in the action on trial, and was very material to the issue before the jury. The jury had heard it; and it was for them and not the court to consider and determine, not only what was said, but particularly what the plaintiff meant by what he said. The court has not the right in such a controversy to construe the language of a witness, and give to the jury the meaning of the witness by the words used. What the witness says in his testimony on the trial of a cause, when the exact words have not been taken down as uttered, is a question for the jury; and emphatically so, the sense in which they are used. In this case, the language of the plaintiff had been such as to raise a question in the minds of the counsel, as to what he said, and as what he meant by what he said, and upon a question, too, that was material to the issue. Should the court, under such circumstances, have usurped the duty of the jury and made itself a court of inquiry to determine the fact, and then have given to the jury for their guidance its construction of the plaintiff's language? Such a course of procedure would have been manifestly wrong, and an infringement on the prerogative of the jury. The question raised by the exceptions was clearly one for the jury alone, and was properly referred to them."] Porter v. Platt, 57 Vt. 54.

Attorney's Evidence Inadmissible in such a Case.-In such a case, the testimony of an attorney with his minutes taken on trial, is not admissible to strengthen or weaken that of a witness given on the same trial. Upon this point, Walker, J., in giving the opinion of the court, said: "The offer of the defendant in putting in his case to prove by D.J. Foster, one of the plaintiff's counsel, and his minutes of testimony taken on trial, that the plaintiff did testify in his cross-examination upon the point of the submission to one of the fathers of the parties, of the amount of the reasonable sum to be paid for the plaintiff's services, precisely as claimed by the defendant, was properly excluded. The admission of such testimony rests neither upon principle nor authority. A witness's testimony given on the trial of a cause, cannot in the same trial be strengthened or weakened by the testimony of counsel or by-standers, or any person as to what counsel or others understood the witness to say in his testimony; that is always a question for the jury. When they have heard the testimony it must be left with them. It is their duty to remember it, determine its meaning, and give it its due weight. The admission of the testimony of counsel and by-standers for the purpose of the offer would tend to confuse rather than to aid the jury, and to subvert rather than promote justice.

Such a practice would tend to sink a jury trial to the level of a bar-room wrangle."] Ibid.

11. PRINCIPAL AND AGENT. [Undisclosed Principal -Auctioneer.]—Liability of Auctioneer who Sells for Undisclosed Principal, where Goods are Replevied. Where a sale of personal property is made by an auctioneer without disclosing the name of the owner, and the property is afterwards claimed by a superior title, the purchaser may,in an action for money had and received, recover the purchase money of the auctioneer. [Alvey, C. J., and Bryan, J., dissented. In the opinion of the court by Robinson, J., it is said: "We have not been able to find a single case in conflict with the rule thus laid down. On the contrary, it is sustained by all the subsequent decisions, both in England and in this country. Jones v. Littledale, 6 Adol. & E. 486; Mills v. Hunt, 20 Wend. 431; Franklyn v. Lamond, 4 C. B. 637. And in all the text-books the principle is laid down in the broadest terms. In his work on Agency, Judge Story says: "Thus, where a contract is made with an auctioneer for the purchase of goods at public sale, and no disclosure is made of the principal on whose behalf the commodity is sold, the auctioneer will be liable to the purchaser to complete the contract, although from the nature of public sales it is plain he acts as agent only.' Story, Ag. § 267. Again, in Add. Cont., the author says: 'Every auctioneer, who sells without, at the time of the sale, disclosing the name of his principal, contracts personally.' Page 642. In 9 Bab. Auct. Law Lib. § 185, the rule is thus laid down: 'Where an auc tioneer does not disclose the name of his principal at the time of the sale, he is personally liable to an action for damages for not completing the contract.' The cases relied on by the appellants are cases in which the sales were made by administrators or executors or trustees, or by sheriffs or other officers, in which the nature and character of the sales, and the objects for which they are made, are well known to the purchaser. Besides, one making a sale in an official capacity cannot, for reasons of public policy, be held personally responsible; for otherwise, 'no one,' as Judge Archer says, in Mockbee v. Gardner, 2 Har. & G. 176, could be induced to accept the office.' It can hardly be said that an auctioneer is in this sense a public officer. There is a tax, it is true, upon the receipts of sales made by him, and he is appointed, and required to give bond, but the tax is laid for the purpose of revenue, and the appointment and requirement to give bond are provisions of the law to secure the prompt payment of the taxes thus levied. His business is essentially a private one. He may sell or not, as he pleases, and is not in any respect under the slightest obligations to the public." Seemuller v. Fuchs, Md. Ct. of App., July 22, 1885; 1 Atl. Repr. 120.

12. RAILWAY COMPANIES. [Tax Aid Consolida tion.]-Right of Consolidated Company to Receive Aid.-Where a donation is voted to a railroad company, and a trust deed covering such donation is foreclosed, the bondholders buying in all the rights and property of the company, and forming a company which is afterwards consolidated with another under a new name, the last-named company, having completed the work before a forfeit. ure is declared, is entitled to the money voted the original company, it having been in the county treasury at the time of the foreclosure and sale. Board of Comrs. v. Center Tp.., S. C. Ind., Oct. 6, 1885; 2 N. E. Repr. 368.

14. RELIGIOUS SOCIETIES. [Evidence.]-Evidential Facts in Contests Between Factions as to Church Property. In a suit to determine which portion of a congregation has the right to the parsonage, the election of the pastor by a majority of the congregation, his occupaney of the parsonage, his performance of his duties, his agreement with the council representing the congregation under which he occupied the parsonage and continued as minister, are controlling facts, and must be given to the jury. Fernsler v. Seibert, S. C. Pa., Oct. 5, 1885; 1 Atl. Repr. 154.

15. SALES OF PERSONAL PROPERTY. [Fraud-Infancy-Rescission.] Right of Rescission and Remedies of Vendor where Infant Obtains Goods on Credit by Falsely Representing Himself of Age. A minor who obtains goods by representing himself untruly to be of full age, and legally responsible, is answerable under the criminal law, for obtaining goods under false pretenses, and is consequently guilty of such fraud as will avoid the sale. In such a case the vendor may affirm the contract by suing in assumpsit, or disaffirm by suing in trover or replevin. Where, however, the vendor does nothing in disaffirmance, an innocent purchaser for value takes title. [In giving the opinion of the court, Paxson, J., said: "It is admitted that, at the time of the purchase of the cigars, Landis, the son, was in fact a minor; that the representations made by him in this regard were wholly untrue, and it is not pretended that there was anything in his appearance, or otherwise, to put parties dealing with him on their guard. It cannot be doubted that a minor who, under such circumstances, obtains the property of another by pretending to be of full age and legally responsible, when in fact he is not, is guilty of a fraud by false pretense, for which he is answerable under the criminal law. 2 Whart. Crim. Law, 2099. A contract induced by such fraud as does not involve a public wrong, the adjustment of which is against public policy, is, in general, voidable only, not void, and the party defrauded may, at his option, confirm or repudiate it. The contract only becomes void after it has been avoided; therefore, in the case of a sale of goods induced by the fraud of the vendee, the vendor may, excepting in the cases mentioned, sue in assumpsit for the price in affirmance of the contract, or in trover or replevin in disaffirmance of it. But until the vendor has done some act to disaffirm the transaction, the property vests in the vendee; therefore it is that an innocent transferee for value takes the title. The mere fact that the contract may be afterwards rescinded does not affect its intermediate efficiency. In cases of fraud from false personation it has been held that no title passes; but this distinction arises out of the consideration that no contract is in such case made with the party personated, and none is contemplated with the false impersonator; the title, therefore, remains in the vendor, and the transaction is wholly inoperative even as to third persons. The general rule, as drawn from all the cases, and stated in Benj. Sales, 568, is as follows:

Whenever goods are obtained from their owner by fraud, we must distinguish whether the facts show a sale to the party guilty of the fraud, or a mere delivery of the goods into his possession, induced by fraudulent devices on his part; that is to say, whether the owner intended to transfer both the the property in, and the possession of, the goods to the person guilty of the fraud, or to deliver nothing more than the bare possession. In the former case there is a contract of sale, however fraudulent the device, and the property passes; but not in the latter case."] Neff v. Landis, S. C. Pa., Oct. 5, 1885; 1 Atl. Repr. 177.

16. TAXATION. [County.]-County not Liable to Refund Taxes Illegally Collected for State or School Purposes.-So held. [Following Burlington, etc. R. Co. v. Buffalo County, 15 Neb. 51; s. C., 15 N. W. Kepr. 539.] Price v. Lancaster Co., S. C. Neb., Sept. 29, 1885; 24 N. W. Rep. 705. 17. WILL. [Execution of Power]. Evidence that the Testator Intended to Execute a Power.-Although the donee of a power may execute it without referring to it, and without taking any notice of it, provided the intention to execute the power really appears. Yet where the power given to the donee to devise is not referred to in the instrument executing the trust, the property subject to its operation must be mentioned, so as to indicate that the disposition was intended to affect it. A mere general devise or bequest will not comprehend the subject of the power, unless the intent to execute it becomes apparent from circumstances tending to such a conclusion. [In the opinion of the court, given by Yellott, J., it is said: "It has been decided that the donee of a power may execute it without referring to it, and without taking any notice of it, provided the intention to execute the power clearly appears. Smith v. Adkins, 41 L. J. (Ch.) 628; Doe d. Smith v. Bird, 5 Barn. & Adol. 695; Sugd. Pow. 373. But a person taking under the execution of a power does not derive his title from the donee, but from the donor, under the authority of the instrument creating the power. Bradish v. Gibbs, 3 Johns. Ch. 523. If, therefore, there is no express reference to the instrument creating the power, it is apparent that there should be some special reference to the subject on which it is to operate, or some circumstance leading to the conclusion that its execution was intended. Thus, in Doe d. Caldecott v. Johnson, 7 Man. & G. 1047, where it appeared that a testator holding property for life, with a power to devise or convey, had in general terms devised and bequeathed all his real and personal estates, it was held that the will was not a good execution of the power, because it. contained no reference to the power, or to the property on which it was to operate, or to anything from which it could be inferred that the testator, in framing the will, had the power in his contemplation. And there being no evidence adduced by either party at the trial, as to whether the testator had or had not any other real estate upon which his devise could operate, it was further held that the onus probandi rested upon him who claimed under the will as an effective execution of the power; and that it lay upon him to establish the negative proposition that the testator possessed no such property. It has long been the settled doctrine in England that where the power is not referred to, the property subject to its operation must be mentioned, so as to indicate that the disposition was intended to affect it; or, in other words, the donee must do such an act as to