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when he forecloses the mortgage he is entitled to have the amount so paid included in the judgment against the mortgagor; but if he take judgment for the amount of the original debt only, the lien of the mortgage is exhausted, and a purchaser at the foreclosure sale takes a clear and absolute title to the premises. (2) That such purchaser knew when he purchased the premises that the mortgagee claimed a lien thereon for the amount of the taxes separate from the lien of the mortgage will not change the effect of the sale. Dickinson v. White. Opinion by Reed, J.

[Decided Oct. 24, 1884.]

MORTGAGE CONVEYANCE SUBJECT TO-DIVISION OF TRACT.-T. sold a portion of a tract of real estate to L., subject to a mortgage, and the rest of the tract to S., who sold to B. The mortgage was foreclosed, and B. insisted that L. was bound to pay one-half of the mortgage debt. Held, that the assumption of a portion of the indebtedness by L. inured to the benefit of B. to the extent only of the amount L. had agreed to pay, and that B. could not recover more than the agreed sum. Edwards v. Thostenson. Opinion by Seevers, J.

[Decided Oct. 24, 1884.]

MARRIAGE-DIVORCE-ADULTEROUS MARRIAGE OF PLAINTIFF. The rule that it is not competent for one of the parties to a marriage to come into court and complain of the other's violation of matrimonial duties, if herself likewise guilty, does not apply to one who contracts a second marriage under the belief that her husband is dead. The rule in England, and in at least several of the States in this country, is that when a party knowingly commits adultery such act may be pleaded in bar of an action for a divorce. Clapp v. Clapp, 97 Mass. 531. The rule may be thus briefly stated: "It is incompetent for one of the parties to a marriage to come into court and complain of the other's violation of matrimonial duties, if himself likewise guilty." 2 Bish. Mar. & Div., § 76. It is uncertain when the marriage of the plaintiff and John W. Smith took place; but from the meager evidence on that subject before us we reach the conclusion that it must have taken place from ten to fifteen years after the plaintiff last heard from the defendant. She might have concluded he was dead. There is no evidence tending to show that she supposed he was living. There is no evidence tending to show she was guilty of any criminal intent, and we conclude such a marriage does not bar her right to a divorce. Knowingly she did not commit adultery. She cannot be regarded as a guilty party in this action. Smith v. Smith. Opinion by Seever, J.

[Decided Oct. 24, 1884.]

MASTER AND SERVANT-LIABILITY FOR TORT OF SERVANT-SCOPE OF EMPLOYMENT-EVIDENCE-DECLARATION OF AGENT-RES GESTE-PROOF OF AUTHORITY. (1) Where an employee of a railroad company has authority to remove persons from trains who have no right to be thereon, the company is liable for any willful wrong he may do in removing a trespasser, and it is immaterial what motive he had or with what malice the act was done. It is claimed by counsel for appellant that if the petition and plaintiff's testimony be true, the assault was felonious, and was an act wholly without the scope of the brakeman's authority. A large number of cases are cited upon the question as to the liability of a master for the wanton, willful, and intentional wrong of his servant. Among the authorities which hold that the master is not liable in such cases are De Camp v. Mississippi & M. R. Co., 12 Iowa, 384; Cooke v. Illinois Cent. Railroad Co., 30 id. 202; Cleveland v. Newsom, 45 Mich. 62; S. C., 7 N. W.

Rep. 222; Fraser v. Freeman, 43 N. Y. 566; Howe v. Newmarch, 12 Allen, 49. In the case of McKinley v. Chicago & N. W. R. Co., 44 Iowa, 314; De Camp's case and Cook's case, above cited, were distinguished upon the ground that in the latter the injury was done to a passenger, while in the former it was done to livestock, respecting which the duty of the railroad company was entirely different. It is said however in that case, that if we were left to determine the question upon principle whether an employer should be held liable for the willful or criminal acts of the employee, done in the course of his employment, we should have very little or no hesitation in affirming such liability, and this because the employer has placed the employee in a position to do wrong; and it being done in the course of his employment, the intent with which it was done should not affect the liability of the employer, whether the intent be go ill. So long as he acts within the scope of his loyment the employer should be bound. (2) The declarations of a brakeman in putting a trespasser off of a train that he had authority to put him off are admissible as part of the res gestæ in an action against the railroad company for damages caused by the forcible ejection. In 1 Greenlf. Ev., § 113, it is said: "Whenever what he did is admissible in evidence, then it is competent to prove what he said about the act while he was doing it." It was competent for the purpose of showing that the brakeman intended to put the plaintiff off the car. It was not competent for the purpose of showing the authority of the brakeman to eject the plaintiff. But the record does not show that this specific objection was made to the testimony. (3) Testimony of a witness, who before and after the ejection from the train complained of, had been for fourteen years a foreman, brakeman, engineer, or conductor of the railroad company, that brakeman were subject to the orders of conductors, and had orders to eject trespassers from trains, and testimony of witnesses that they had seen brakemen eject trespassers, is competent evidence of the authority of a brakeman to eject a trespasser. Marior v. Chicago, etc., Railroad Co. Opinion by Rothrock, C. J.

[Decided Oct. 22, 1884.]

NEGLIGENCE-EMPLOYEE OF RAILROAD-QUESTION FOR JURY.—An employee of a railroad who, after signaling the train to stop, goes on to the track to make a coupling without looking or listening to see that the train actually stopped, is not necessarily guilty of negligence, and whether he is or not should be left to the jury. The only case in which this precise question has been determined, which has come under our knowledge, is Beems v. C., R. I. & P. R. Co., 58 Iowa, 150. In that case the decedent was attempting to uncouple certain cars while the train was in motion, and he gave a signal to check the speed of the train, and without waiting to see whether it was obeyed or not, stepped between the cars and was injured. It was held that he was not "necessarily guilty of contributory negligence." We are unable to distinguish that case from this, and to a considerable extent, at least, the same may be said in relation to Berry v. Central R. Co., 40 Iowa, 564, where a car repairer went under a car on a side track for the purpose of repairing the same, with the knowledge of an employee in charge of the track and movements of trains at that place, and it was held that he had a "right to suppose that no cars would be switched upon the track without notice to him, or at least that the switching would be done in a reasonably careful manner." The only material difference between this case and Steel v. Cent. R. Co., 43 Iowa, 109, is that the plaintiff in that case saw that the signal to check the train was being obeyed at the time he attempted to pick up the pin, which lay on the

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track, and it was said in that case that he was ranted in believing his signal would be obeyed." The fact that the plaintiff went on the track before the train stopped should not alone prevent his recovery, unless he was negligent in so doing. To have so waited would have caused delay, and we apprehend railway companies expect their employees to avoid all delays possible. The necessities of the business, and due regard to the safety of trains, their own and lives of others, require prompt action on the part of employees in charge of trains. While this is true, recklessness cannot be tolerated. It is not believed that any general rule can be laid down. Therefore it is and must, ordinarily, be a question for the jury whether an employee of a railway company, whose duty it is to couple and uncouple cars attached or to be attached to a train, is or is not negligent when he goes on the track in fron moving train in the performance of such duty. laintiff was rightfully on the track, and it cannot be said that he was guilty of negligence if he had taken the ordinary and usual precautions for his own protection before he placed himself in that position. In relation to Pennsylvania Co. v. Hankey, 93 Ill. 580, we only deem it necessary to say that the question in that case was whether the appellee, in the exercise of proper care, should have made an attempt to make a coupling when the train was moving, he knowing it was dangerous to do so because of the condition of the track along which he was required to walk while attempting to make the coupling. Counsel insist that the rule which requires travellers who are about to cross a railroad track to ordinarily look and listen for an approaching train should be applied to employees who are required to go on the track . in the performance of their duties. But we think such rule should not be strictly applied to an employee who is engaged in making up trains, which must, in a great measure, require his undivided attention. The traveller looks, listens, and crosses the track, and his duty is ended. This is not so with an employee engaged in making up trains, for it is undoubtedly true that frequently several cars are to be uncoupled and others coupled to the train. Considerable time is therefore required. If an employee so engaged is absolutely required to look and listen for approaching trains, or unexpected movements of the train in in his charge, his usefulness would be greatly impaired. We think the question as to the duty of such an employee to look and listen for the movements of trains before he steps or walks on the track must be left to the jury to determine, and therefore it cannot be said that the plaintiff, as a matter of law, was guilty of negligence. Ominger v. N. Y. C. & H. R. R. Co., 4 Hun, 159; Snow v. Housatonic R. Co., 8 Allen, 441; Indianapolis, B. & W. R. Co. v. Carr, 35 Ind. 510; Crowley v. Burlington, C. R. & N. R. Co., 20 N. W. Rep. 467. Rule 59 of the company is in these words: "In all cases of doubt take the safe side and run no risk." The plaintiff had knowledge of this rule, and it is insisted that he disregarded it, and therefore he is not entitled to recover. The rule implies that an employee must exercise judgment and discretion in determining whether danger existed if he did a thing in a certain way or at a certain time. In this respect it is different from other rules to which our attention has been called by counsel. In I. C. R. Co. v. Houck, 72 Ill. 285, the rule was that only 110 pounds of steam should be carried. In Shanny v. Androscoggin Mills, 66 Me. 420, the rule required that the machinery should be stopped at a certain hour for the purpose of being cleaned. In Wolsey v. Railroad Co., 33 Ohio St. 227, coupling by hand was strictly prohibited, and the employee was required to use a short stick. Under these rules no discretion was left to the employee. He failed to obey them,

either through recklessness or for his own convenience. As they were adopted for his benefit, or should be regarded as just and proper, we can well see an employee should not recover damages for an injury received solely because he disregarded such precautions. The rule in O'Neill v. K. & D. M. R. Co., 45 Iowa, 546, and all other cases cited by counsel, were of a like character. It is difficult to say, when judgment and dis cretion is devolved upon an employee by a rule of the company, that he cannot recover damages for an injury received, because as claimed, he failed to properly exercise the discretion with which he was invested. It seems to us this is necessarily a question for the jury. Besides this the plaintiff gave a signal which should have caused the train to stop. Had this been done the plaintiff could have stepped on the track as he did with perfect safety. Bucklew v. Central Iowa R. Co. Opinion by Seevers, J. [Decided Oct. 23, 1884.]

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

NEGLIGENCE-APPROACHES TO PREMISES LICEN SEE. The jury were warranted in finding that the defendant was seised of the premises and in possession and control of that part of them where the accident happened. It appeared from the defendant's own testimony that he was actually the landlord and had collected the the rents since 1877. Dainty v. Brocklehurst, 3 Exch. 207. He spoke of having got possession, that is, as we understand it, of the whole premises; and there was evidence that he assumed to have control over the well into which the plaintiff's intestate fell. There was also evidence that the sub-lessees of the premises had surrendered to the defendant's lessee before the latter surrendered to the defendant. Amory v. Kannoffsky, 117 Mass 351, and cases cited. If there was any technical defect in the surrender of the sub-lessees, the mere fact that there was a formal and unasserted right outstanding would not prevent the defendant's being chargeable to the same extent as if there had been no flaw in his right of possession. We assume that the defendant let the tenement, from which the plaintiff's intestate was coming at the time of the accident, when the premises were in their present condition, and therefore stands in the same position toward the public as if he himself had put the premises in that condition before the lease. The plaintiff's intestate went to the tenement referred to to stop a disturbance of the peace which was taking place there, as he had a right to. Gen. Stats., ch. 23, § 1; Pub. Stats., ch. 34, § 1. He seems also to have been invited by the occupant, whose son was making the trouble. He arrested the son, but as the arrest does not appear to have affected his course in leaving the place, his right to recover would not be affected if the arrest was unlawful. He came on the premises lawfully, and could lawfully leave them. Under the instructions of the court, the jury must have found that the intestate was using the passageway by the defendant's invitation. That is to say, that the intestate had a right to understand from the appearance of the premises that the intended mode of approach to the tenement in question was over the open space where the well was; and the evidence warranted the finding

to that extent. If the appearance of the premises is such as to point out a certain open space as the mode of approach, while it may not be the defendant's duty to take care of the whole open space as an approach, his duty to keep safe the approach offered, whatever it is, is as great as if it were a wrought avenue. And

although the jury should regard less than the whole
space as the approach proper, yet they would be at
liberty to find, from the absence of any marks defining
and separating the approach proper from the rest of
the space, that an exceptional danger outside the for-
mer aud in the latter made the approach unreason-
ably dangerous. See Barnes v. Chicopee, ante; White
v. France, 2 C. P. D. 308; 21 Eng. Rep. 305. To put it
in another way, the jury had a right to find that the
plaintiff was properly where he was. Gilbert v. Nagle,
118 Mass. 278. The defendant argues that the plaintiff
was not using due care, because coming to an obstacle
fifteen inches high in the dark,and stepping upon it,he
then stepped forward and fell into the well. The jury,
who regarded the well as making the passage danger-
ous, may have considered that the plaintiff had a right
to assume that no such danger would be allowed to
beset the way. We cannot say, as matter of law, that
they were wrong. Severy v. Nickerson, 120 Mass. 306;
Fox v. Sackett, 10 Allen, 535; Lawless v. Connecticut
River Railroad, 136 Mass. 1. Leavoyd v. Godfrey.
Opinion by Holmes, J. [See 19 Alb. L. J. 267.-Er.]
[Decided Jan., 1885.]

towns were first added to the list of preferred creditors, the reason was expressed to be "so that county, city, or town taxes shall be entitled to the same priority or preference as State taxes are now entitled to in cases of insolvent debtors;" and that although these words are omitted in the Public Statutes, we may properly recur to them for the purpose of construing the statute as it now stands. The provisions of the Public Statutes were certainly intended as a re-enactment, without change in the law as it previously existed. Drew v. Streeter, 137 Mass. It was the intention of the commissioners, as stated by them, to express in the text of the revision the existing laws according to their understanding of them in such a manner that no existing rights should be changed. When there is substantial doubt as to the meaning of the language used in the Public Statutes, the statutes, as they previously existed, afford therefore a most valuable guide in their construction. But when language is clear, we cannot look to the earlier statutes to see if an error has been made by the Legislature in its understanding of them, as there is no room for the office of construction. Lewis v. United States, 92 U. S. 621. Even if the meaning it has affixed to the earlier statTRUST AND TRUSTEE-FUNDS MAY BE FOLLOWEDutes is different from that we should attribute to MISAPPROPRIATION.-Those who receive trust propthem, that which it has adopted, if clearly expressed erty from a trustee in breach of his trust become by the Public Statutes, is controlling. If the language themselves trustees thereof, if they have notice of the of the statute, as it now exists, were susceptible of trust. So when a trust fund is employed to purchase, two constructions, an argument drawn from the statin whole or in part, a particular piece of property, so ute as it was formerly expressed (should we adopt the long as the trust fund can be identified it may be folmeaning given to it by the plaintiff) would be conclulowed into the hands of any one purchasing with nosive. United States v. Bowen, 100 U. S. 508. But it is tice, as he has made himself an accomplice in the origin the revision was not so used for the very purpose of impossible for us to say that the explicit language used inal wrongful act. The property which has been substituted for the fund is itself impressed with the trust removing any doubt which might have been caused by originally imposed upon the fund. But it is necessary the expression in the statute of 1862 relied on by the that such property should be pointed out and identi- plaintiff. Bent v. Hubbardston. Opinion by Devfied. When the property of an unfaithful trustee is augmented by the incorporation into his own property [Decided Dec., 1884.] of trust funds, and with his property thus augmented he makes purchases or conveyances, those dealing with him, even if they know him to be an unfaithful trustee, cannot be held to he trustees of property which cannot be connected with the trust fund. If one knows that a purchase is made from him with the specific funds of an estate wrongly misappropriated, he may be compelled to repay that which he thus received. Trull v. Trull, 13 Allen, 407. But if he receives it, not as a distinct fund, and with no knowledge that would identify it as forming a part of the trust fund, his general knowledge that the party paying wrongfully used trust funds would not render him thus responsible as trustee. Howard v. Fay. Opinion by Devens, J.

[Decided Dec., 1884.]

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CONSTRUCTION

INSOLVENCY -PREFERRED DEBTS OF STATUTE.It is provided by the Pub. Stats., ch. 157, § 104, that in the order for a dividend on an insolvent estate, "the following claims shall be entitled to priority, and to be paid in full in their order: First, all debts due to the United States and all debts due to and taxes assessed by this State, or any county, city or town therein." We concur in the plaintiff's view that the taxes collected by the insolvent as town collector ceased to be taxes eo nomine, and constituted a debt due by him to the town. The words "debts due to" and "taxes assessed being connected conjunctively in the statute, it would not seem possible to construe it in any other way than as providing that they are alike preferred debts. They cannot be limited to debts due for taxes assessed from those to whom they are assessed. The plaintiff urges that when by the Stat. of 1862, ch. 183, § 11, counties, cities, and

ens, J.

ALTERATION BY

CEMETERIES-EASEMENT OR FEE CITY-RIGHTS OF OWNER.-It has been said that rights of burial in public burial grounds are peculiar and are very dissimilar to rights in pews; that they are so far public that private interests in them are subject to the control of the public authorities having charge of po lice regulations. Sohier v. Trinity Church, 109 Mass. 1, 21. See Pub. Stats., ch. 82, § 15. It has been held, in the case of a sale by plan, that the fee of the ways remained in the owner of the cemetery who retained general charge of the grounds. Seymour v. Page, 33 Conn. 61. Finally, apart from any peculiar principles applicable to cemeteries, it is to be borne in mind as a general proposition that a reference to a plan does not necessarily add to or enlarge the easements conveyed by the deed. Williams v. Boston Water Power Co., 134 Mass. 406, 416. Taking all these considerations into account, we should hesitate to decide that the plaintiff could have any standing in equity to complain of alterations made in good faith for the general improvement of the cemetery, and not impairing the value of his lot, or his means of access to it. If he has any such right, it is inter apices juris, and when the master finds that the pecuniary loss to him is nothing, aud that the injury or damage, if any, is "wholly one of sentiment and temper of so slight a character as to be counted among the trifles which the law does not regard," and when it further appears that the plaintiff has lain by and taken no other action than to protest, while "the city has expended in the work in question a large sum of money manifestly to the general improvement and benefit of the cemetery, and the cost of removing or opening the wall and terrace across the avenue would largely exceed the amount or value of the plaintiff's individual interest in the premises,"

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we are clearly of opinion that the plaintiff has no claim to equitable relief. Wood v. Sutcliffe, 2 Sim. (N. S.) 166; 21 L. J. (N. S.) Ch. 253. Gaunt v. Fynney, L. R., 8 Ch. 8. Perkins v. City of Lawrence. Opinion by Holmes, J.

[Decided Jan., 1885.]

- EVI

MUNICIPAL CORPORATION-ICY SIDEWALK DENCE AS TO PRIOR CONDITION.-In an action for personal injuries occasioned by falling upon a defective sidewalk the court may, in its discretion, reject evidence of the condition of the sidewalk as to ice a week before the accident happened, so far as offered to prove the condition at the time of the accident, even if under special circumstances, it would have been warranting in admitting it. Berrenberg v. Boston, 137 Mass. 231. The witness did not undertake to speak to the continuance of the same defect down to the moment of the accident from daily observation, and although the plaintiff's counsel stated that he expected to prove by this and other witnesses that the defect had existed in substantially the same way for eight or ten days, yet in view of the plaintiff's own testimony, that the day before the accident snow fell to the depth of four or five inches, followed by rain and then by a thaw, we must take it that the intended proof was by way of inference from other testimony like that offered, which the court very properly considered too remote. The plaintiff argues that the evideuce was admissible to prove notice. What we have said applies to this argument also, for the notice to be proved must be notice of the same defect. Furthermore the defense was not put on want of notice of the condition of the sidewalk, such as it was, but on a denial that the condition was defective. Woodstock v. City of Worcester. Opinion by Holmes, J. [Decided Jan., 1885.]

NEGOTIABLE INSTRUMENT ILLEGAL CONSIDERATION-PARI DELICTO-COMPOSITION.-The first count was upon a promissory note for $217.50, made by the plaintiff to the defendant; the second was for a like amount, upon an account annexed for goods sold and delivered by the plaintiff to the defendant before the making of the note. The plaintiff does not contend that he is entitled to recover upon the note on which his first count is founded. The note was given in consideration, and upon the secret agreement, that the plaintiff should execute a deed of composition entered into between the defendant and his creditors, which purported to treat all the creditors equally. The decisions are numerous and uniform that such a note is void. Harvey v. Hunt, 119 Mass. 279, and cases cited. But he contends that he is entitled to recover the balance of his account for which the note was given, in the same manner as if he had not executed the composition deed. In other words, his claim is that the law will regard the rights of the parties as if the composition deed and the corrupt agreement by which it was accompanied had never been made. We do not understand this to be the law. If two persons make an illegal contract, being in pari delicto, so long as it remains executory, the law will not aid either party to enforce it; but so far as it is executed, the law will not lend its aid to either party to relieve him from the consequences of the illegal contract, or to rescind it. Myers v. Meinrath, 101 Mass. 366; Horton v. Buffinton, 105 id. 399; Cranson v. Goss, 107 id. 439. In the case at bar the plaintiff executed the composition deed and received the amount provided for therein in full satisfaction and payment of his account. This operated as an extinguishment of his debt. The agreement with the defendant that he would pay the full amount of the debt in the future was illegal, and avoided the composition deed as to other creditors.

Partridge v. Messer, 14 Gray, 180. But the plaintiff was bound by it, and cannot set up his own illegality to relieve himself from its consequences. His debt has been discharged and extinguished, and the law leaves the parties in the position in which they have placed themselves, and will not furnish a remedy to either to undo what has been done. Mallalieu v. Hodgson, 16 Q. B. 689. Huckins v. Hunt. Opinion by Morton, C. J.

[Decided Jan., 1885.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

TOWN-ONE OF FOUR OFFICERS CANNOT BIND TOWNALL MUST ACT.-A township having four supervisors was for the convenience of such supervisors divided into four districts, over each of which one supervisor had charge. The supervisor in one of said districts engaged and contracted with a party to plow the road, and in answer to the party's objection, that his plow was too light, said: "I'll insure you it won't hurt it." The plow being broken while employed in the work, and suit being brought against the township to recover damages, held, that the alleged contract was not a ministerial act which could be entered into by one supervisor, so as to bind the township, but that in order to create such liability it should have been entered into by all the supervisors. Held therefore that the township was not liable. One supervisor cannot levy a tax to pay the debts contracted, nor the expenses incurred in the township. Cooper v. Lampeter Township, 8 Watts, 125. As a general rule, it may be declared one cannot bind the township by a contract, the propriety of which requires deliberation and the exercise of judgment. Union Township v. Gibboney, 13 Norr. 534. He may bind it in matters purely ministerial. It is in the line of ministerial duty to open and repair a road. He can therefore employ laborers for that purpose. It was held in Dull v. Ridgway, 9 Barr, 272, that one might give a valid due bill, which showed on its face that it was for work done thereon. The right of the laborer rested rather on the consideration mentioned therein than on the due bill itself. The township was not thereby deprived of any valid defense. The law has wisely intrusted to the supervisors as a body the transaction of all the public business imposed on them, which calls for the exercise of judgment and careful deliberation. The conclusion at which we have arrived does not conflict with Commonwealth v. Supervisors of Colley Township, 5 Casey, 121, in which it was held that the supervisors might enter into a valid arrangement that each should take charge of a certain portion of the township, and direct the working out of road taxes therein. Nor is the present case like Hopewell Township v. Putt, 2 Week. Notes, 46, in which a person was permitted to recover for money advanced to pay for work actually done in constructing the road. The attempt now is not to recover for work done, not for money advanced to pay for work done, but to pay damages not contemplated by the board of supervisors and not implied under any authority given by them. The alleged contract was therefore in excess of the power of one supervisor, and the township is not bound thereby. It cannot be said that such a contract is a ministerial act. Somerset v. Parson. Opinion by Mercur, J. [See 20 Eng. Rep. 522.]

[Decided Oct. 6, 1884.]

SUBROGATION-JUDGMENT-NOTE-LIEN.-Where one of two debtors on a joint judgment-note, which has been duly entered up, pays, under execution, the amount thereof, taking an assignment of record of the judg

EXECUTOR AND ADMINISTRATOR-PURCHASE OF INTEREST OF DECEASED IN PARTNERSHIP-VOIDABLE

RATIFICATION

ESTOPPEL MARRIED WOMAN - AD

VANCEMENT-INTEREST ON.-(1) The purchase of the undivided interest of a deceased partner by the executor of his estate, in his own behalf, is viewed with more suspicion; in such case the estate stands altogether unprotected; it is exposed to the greed or the executor, with none to guard against it. The executor appears both as seller and buyer, and an indefeasible title cannot thus be acquired. Chronister v. Bushey, 7 W. & S. 153; Campbell v. McLain, 51 Penn. St. 200. The rule extends to all having a fiduciary re

ment to his use, he is entitled to be subrogated to the creditor's rights against the estate of his deceased coobligor, to the extent that he has paid his co-obligor's proportion of the debt. In McCormick v. Irwin, 11 Casey, lil, it was said by Mr. Justice Strong: "The doctrine (subrogation) does not depend upon privity, nor is it confined to cases of strict suretyship," and in Cottrell's Appeal, 11 Harr. 294, by Justice Woodward: "Subrogation is founded on principles of equity and benevolence, and may be decreed when no contract or privity of any kind exists between the parties. Whenever one not a mere volunteer discharges the debt of another he is entitled to all the remedies which the creditor possessed against the debtor." And in Mosier'slation to the property, and the fairness and honesty of Appeal, 6 P. F.S. 76, where a junior judgment creditor, believing the land would be sacrificed, after the execution plaintiffs had refused to assign their judgments to him on payment, paid the executions to the sheriff, and satisfaction was entered; no other liens having intervened, he was subrogated to the rights of the execution plaintiffs, and the satisfaction cancelled. While the ruling of these cases is perhaps broad enough to control the present one, we are not obliged to say so, as we have direct authority upon the point. In Gearhart v. Jordan, 1 Jones, 325, it was held that "the rule embraces purchases in common of an estate bound by a joint lien, as between themselves, the purpart of each is liable to contribute only its proportion of the common burden, and beyond this is to be regarded simply the surety of the remaining purparts. In this respect they are to be treated as the several estates of joint debtors, one being surety of the other; and if the purpart of one is called upon to pay more than its due proportion, the teuaut or his lien creditors, upon the principle settled in Fleming v. Beaver, 2 Rawle, 128; Croft v. Moore, 9 Watts, 451; and Neff v. Miller, 8 Barr, 347, is entitled to stand in the place of the satisfied creditor to the extent of the excess which ought to have been paid out of the other shares." Gearhart v. Jordan was recognized in the late case of Watson's Appeal, 9 Norr. 426, where is was said by Mercur, J.: "As between two mortgagors of land held by them as tenants in common and third persons, each mortgagor is liable for the whole sum secured by the mortgage: but as between themselves each is liable for one-half only. As to the other half, each is surety for the other." Ackerman's Appeal. Opinion by Paxson, J.

[Decided April 14, 1884.]

EQUITY-JOINT PURCHASE Of property-REFUSAL OF SOME OF PURCHASERS TO PAY THEIR SHARE OF EXPENSES-EFFECT OF.-Several parties, who were owners of bonds of a railroad company about to be sold under the mortgage, entered into an agreement to purchase the property and not to claim their share of the proceeds of the sale, but to take in lieu thereof bonds, to be issued under a company to be subsequently organized. Nothing was said in the agreement as to which of the parties should purchase the property but one of them, a corporation, undertook to do so, but the property was bid above their limit. Subsequently the purchaser at the sale transferred the title to said corporation for advances made by them and for prior indebteduess to them. Said corporation began to reorganize a company, and requested the other parties to join in the expenses, which was refused. Held, that even should this purchase by the corporation inure to the benefit of the other bondholders, the latter were debarred by their refusal to share in the expenses from claiming any interest in the purchase. Yeager's Appeal, 4 Out. 88. Lennig's Appeal. Opinion by Paxson, J.

[Decided April 14, 1884.]

the transaction do not vary it. This principle is not founded on the assumption of actual fraud; it is a rule of public policy. Drysdale's Appeal, 2 Harr. 536; Chorpenning's Appeal, 32 Penn. St. 315. Where the transaction is accompanied by actual fraud it is absolute void, and is incapable of subsequent ratification; but a purchase by a trustee at his own sale, bona fide and for a full price, is but a legal fraud; it is voidable only, and may be confirmed by the parties in interest upon full knowledge of all the circumstances after a deliberate examination. What may be subsequently ratified may of course be previously authorized, and an act done by such previous authority needs no subsequent ratification. (2) It is certainly true, as shown in along line of cases, that a contract, void under the disability of coverture, cannot be made good by estoppel; neither a fraudulent denial of coverture, payment of purchase-money nor silent acquiescenco in the making of improvements, nor all of these together, can by way of estoppel give validity to a contract void upon this ground. Glidden v. Strupler, 2 P. F. S. 400; Bispham Eq. 293. The above principle applied in the present case where certain married women executed, without the joinder of their husbands, an instrument which virtually ratified a purchase by their father's executor of decedent's interest in a partnership. In such case the married women were held estopped from subsequently objecting to said purchase. (3) A testator by his will directed that the amounts due him by his sons-in-law should be taken as advancements by him to their several wives. Held, that no interest could be charged on the indebtedness of the sons-inlaw to the testator. (4) Where a testator, after providing for certain annuities, leaves the residue of his estate to his widow during her life, she is entitled to interest which has accrued upon a debt due the estate between the date of testator's death and the date of the collection of the debt. Grim's Appeal. Opinion by Clark, J.

[Decided Oct. 6, 1884.]

CORPORATION-STOCKHOLDER-LIABILITY OF, HOW ENFORCED.-A stockholder of a manufacturing corpo ration, against whom judgment is recovered for the debts of the corporation, which judgment he pays, is not entitled to contribution against the other stockholders except in the particular manner specified in the acts. Corporation stockholders who have already contributed their proportions to the capital stock are not at the common law or in equity liable for the cor. porate debts; statutes which impose this liability must therefore be strictly construed. This rule of law is well settled. Mean's Appeal, 4 Norr. 78. The right of contribution among stockholders also exists by reason only of the obligation imposed by the statute. If it were not for the statute there would exist no personal responsibility on the part of the holder of the stock, either to the corporate creditors or to each other for the corporate debts. The right of the plaintiffs to recover in this case therefore depends upon the con

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