Brown, from the case of Vannevar v. Bryant, one of the last decisions of the Supreme Court of the United States: "The hearing, or trial here referred to, is the examination of the facts in issue." While in the case of Ward v. Davis, 6 How. Pr. (N. Y.) 275, where the only question before the court was, as to what meaning should be given to the word "trial," as used in the Code, sec. 252, it was said: "The whole embarrassment in this case has been created by adopting a new definition to the word trial in sec. 252. This word for two hundred years previous was understood to mean, the examanination before a competent tribunal, according to the laws of the land, of the facts put in issue, for the purpose of determining such issue;" citing Burrill's Law Dict., title "Trial" and with others herein cited, Co. Lit. 125.

This new definition is the same as that of the codes of many of our other states, and reads: "A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact;" and hence it is held in New York that the hearing of a demurrer is a "trial," Small v. Ludlow, 1 Hilt. 307; that the hearing of a motion for a new trial is a "trial," Mechanics, etc., v. Kiersted, 4 Duer, 641; and in Place v. Butternuts, etc., 28 How. Pr. R. (N. Y.) 185, it was held that the hearing of a motion for a new trial, in both the supreme court and court of appeals, was each a "trial; " in a word, that any motion raising an issue of law is a "trial."

I have thus called attention to these decisions for the purpose only of propounding this inquiry: Are nonresidents to be affected in their constitutional right of removal at any time before a well-known judicial step in a cause, by the legislatures of the several states changing its name, or is this word trial to have a uniform definition throughout the Union?

The language of the act is, "before, or at the term at which said cause could be first tried, and before the trial thereof." This language, it is clear, gives the right at any time before a trial to a removal, and hence the pertinency of the inquiry recurs, "Is a default a trial?" Even conceding that the word "trial " will include an issue of law in cases of default, no isssue of law has been raised, no issue of fact found by the discretion of a tribunal, court, or jury, yet it is true that the law by implication has found sufficient facts to allow plaintiff to nominally recover. It is but a rest, a pause, in fact a barrier behind which neither the plaintiff can recede, nor the defendant go, without the other. For if the plaintiff have made a misstep and he be allowed to return, the defendant may follow and escape the penalty, his previous default. Let the proceeding stop here, and what would the plaintiff take, or the defendant lose anything? Shall the defendant then be required to put in a frivolous demurrer or denial, or a frivolous plea, to raise an issue of law or of fact? If he only desires to take issue upon the unadmitted facts, avail himself of the general issue, the amount of damages plaintiff is entitled to recover, may he not do so? To a lawyer's mind many cases will readily be suggested, where the only important question is the measure of damages, as in cases of admitted breeches of contract, and in tort, of duty, where the damages are too remote or unlawful; e. g., the Havens case, supra, where, upon plaintiff's theory as to what a default admitted, the facts were found and the damages assessed at $3,500, but where the court of errors held that, because of a default, the court would not be so blinded as to render judgment for what was unlawful.

Did not Congress the rather intend to require the application to be made before a well-understood judicial proceeding; not, however, to lay down a uniform rule as to the time within which, but generally before a proceeding in which both parties were most inter

ested, the issue of facts, upon which the law pronounces final judgment.

That the legislatures may, in governing the practice of their courts, indirectly affect the period of time after suit brought, and before this judicial proceeding shall take place, may be admitted; but may they legis late away, by defining words, the proceeding itself? I suppose they might denominate the filing of a petition a "trial," if they chose; for in such case the law implies enough facts found to entitle plaintiff to interlocutory judgment.

It may be, however, that where the defendant confesses upon the record the facts, or goes into court upon an agreed case, or where a default (if such a case is provided for by law) would not require any evidence to authorize final judgment, the application must be made before the reaching of such condition in the progress of the cause. In such case there would be no trial, the law would pronounce the judgment, the judge is but its exponent. E. A. ANDREWS.

KANSAS CITY, MO.

NOTES OF RECENT ENGLISH DECISIONS.

COVENANT NOT TO CARRY ON SPECIFIED TRADE -LIQUIDATED DAMAGES INJUNCTION.-Jones v. Heavens. High Court, Chy. Div., 25 W. R. 460.—A, who had carried on the business of a saddler at C, demised his trade premises to the plaintiff. The lease contained a covenant that the lessor would not, during the term, carry on, or be concerned in carrying on, either directly or indirectly, the business of a saddler within ten miles from C. A was subsequently engaged, at a weekly salary, as managing assistant to his broth.er-in-law, who had opened a saddler's shop in C. Held, that the covenant had not been broken, and that the plaintiff was not entitled to an injunction.

WILL-AMBIGUITY-SURNAME IN BLANK-PAROL EVIDENCE. In the goods of Rosaz. High Court, Probate Div. 25 W. R. 352.-The testator by his will appointed several executors, one of whom was described as "Perceval - of Brighton, Esq., the father." The testator was intimately acquainted with William Perceval Boxall, of Brighton, who was commonly known as Mr. Perceval Boxall, and had a son named Perceval Gretwick Boxall. It did not appear that any person bearing the surname of Perceval was known to the testator. The court held that extrinsic evidence was admissible to assist it in ascertaining the person designated, and ordered the name of William Perceval Boxall to be included in the probate as one of the executors. Quaere, whether evidence of the testator's intention would have been admissible.

EVIDENCE DECLARATION AGAINST INTERESTPROPER CUSTODY-COPY MADE IN COURSE OF BUSINESS. Sly v. Dredge. High Court, Probate Div., 25 W. R. 463.-A deed whereby a mortgagor mortgaged his life interest in real estate under the will of a person therein named, held, admissible in evidence after the mortgagor's death to show that such a will existed, as the deed amounted to a declaration by the mortgagor against his interest, as limiting his estate to an estate for life under a particular will. A copy of a will in the handwriting of one of the attesting witnesses, who was a solicitor's clerk, was found after a lapse of fifty years among the solicitor's papers, tied up with other papers belonging to a client who was one of the executors of the will. Held, on proof of due search for the original will, that the copy was admissible in evidence.

STOPPAGE IN TRANSITU-ARRIVAL OF GOODS AT

THEIR TERMINUS

CARRIER AND BAILEE.-In re Wordsell. High Court, Bankruptcy Div. 25 W. R. 466.-Goods were sent by ship directed to W, at Falmouth. On the arrival of the goods, they were taken by C. & Co., who acted as agents for the shipping company, to their warehouse. It was the custom of C. & Co., to communicate with the consignees of the goods, informing them of their arrival, and subsequently to forward them according to the instructions and at the expense of the consignees. Held, that the transitus was not at an end, till C. & Co. had received instructions from the consignees, which would change their character of carriers for the shipping company into that of bailees for the consignees; and that, till such instructions were received and assented to, the consignors retained the right of stoppage in transitu.

TRUSTEE-BREACH OF TRUST-NEGLIGENCE-LIA.BILITY.-Kingdon v. Castleman. High Court, C. D. 25 W. R. 345.-The sole acting trustee of a settlement handed over a policy of assurance comprised in the settlement to a person whom it was proposed to appoint as trustee in his place. He also omitted to indorse any memorandum of the settlement on the policy, and to give any notice to the assurance office. The policy found its way into the hands of the settlor, who received a bonus and mortgaged the policy to a person who afterwards surrendered it. Held, that the trustee's estate was liable for the amount of the bonus and the amount realized by the surrender; but that, as the settlor, who had covenanted to keep up the policy, became insolvent soon after the date of the surrender, the liability did not extend to the full nominal value of the policy.

WILL-MISTAKE IN LAW-PAYMENT BY EXECUTOR TO THIRD PARTY WITH ACQUIESCENCE OF PERSON ENTITLED-CLAIM FOR REPAYMENT.-Rogers v. Ingham. High Court, Ch'y Div. 25 W. R. 338.-The court will only exercise its power to relieve against mistakes in law as well as against mistakes in fact, where, under the particular circumstances of the case, there is some equitable ground which makes it inequitable that the relief should not be granted. Hence, such relief will not be granted in a case where, there being no fiduciary relationship between the parties, and both parties having had a full knowledge of all the facts, one party demands repayment of money received by the other, merely on the ground that, owing to a mistake in law, both parties had believed that the person receiving the money was legally entitled to it. An executor, acting, as he believed, in accordance with the true construction of the testator's will, paid money to the plaintiff. Afterwards, the executor having died, his administrator was advised by counsel that the money had been wrongly paid to the plaintiff, and ought to have been paid to another legatee. An independent opinion of counsel obtained by the plaintiff took the same view as to the construction of the will, and, accordingly, in winding up the testator's estate, the administrator debited the plaintiff with the money which was supposed to have been wrongly received by her, and paid over that amount and the balance of the same fund, which had been retained in the executor's hands, to the other legatee. Two years later, the plaintiff filed a bill against the administrator and the other legatee for repayment of the money, on the ground that it had been paid under a mistaken construction of the will. Held (affirming the decision of Hall, V. C.), that the suit was, in fact, merely an action for money had and received, and could not be maintained. Bingham v. Bingham, 1 Ves. Sen. 126, and Davis v. Morier, 2 Coll. 303, distinguished.

RECENT LEGISLATION.

ILLINOIS LEGISLATURE-SESSION OF 1877.

AN ACT to amend section 47 of an act to establish and maintain a system of free schools, approved April 1st, 1872.

SECTION 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That section 47 of an act entitled "An Act to establish and maintain a system of free schools," approved April 1, 1874, be amended so as to read as follows: Sec. 47. For the purpose of building school houses, or purchasing school sites, or for repairing and improving the same, the directors, by a vote of the people, at an election called and conducted as required in the forty-second section of this act (a majority of the votes cast shall be necessary to authorize the directors to act), may borrow money, issuing bonds, executed by the officers, or at least two members of the board, in sums of not less than one hundred dollars ($100); but the rate of interest shall not exceed ten per cent., nor shall the sum borrowed in any one year exceed five per cent. (including existing indebtedness) of the taxable property of the district, to be ascertained by the last assessment for the state and county taxes previous to the incurring of such indebtedness; nor shall the tax, levied in any one year for building school houses, exceed three per cent. of said taxable property, except to pay indebtedness contracted previous to the passage of this act. All bonds authorized to be issued by virtue of the power granted by this act, before being so issued, negotiated and sold, shall be registered, numbered and countersigned by the school treasurer of the township wherein the school house of such district is, or is to be located; such register shall be made in a "bond register" book to be kept for that purpose; and in this register shall first be entered the record of the election, authorizing the directors to borrow money, and then a description of the bonds issued, by virtue of such authority, as to number, date, to whom issued, amount, rate of interest and when due. All moneys borrowed under authority granted by this section shall be paid into the school treasury of the township wherein the bonds issued therefor are required to be registered; and upon receiving said moneys, the treasurer shall deliver the bond or bonds issued therefor to the parties entitled to receive the same, and shall credit the funds received to the district issuing the bonds, and shall enter in the "bond register" the exact amount received for each and every bond issued; and when any such bonds are paid, the township treasurer shall cancel the same, and shall enter in the "bond register," against the record of such bond, the words "Paid and canceled this day of —, A. D. -," filling the blanks with the day, month and year corresponding with the date of such payment.

Approved May 11, 1877.

AN ACT to amend section six (6) of an act entitled "An Act to incorporate and govern fire, marine and inland navigation insurance companies, doing business in the State of Illinois."

SECTION 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That section six (6) of an act entitled "An Act to incorporate and govern fire, marine and inland navigation insurance companies, doing business in the State of Illinois," in force July, 1869, shall be amended to read as follows: "SEC. 6. No joint stock company shall be incorporated under this act in the City of Chicago; nor shall any company incorporated under this act establish any agency for the transaction of business in said city, with a smaller capital than $150,000 actually paid in, in cash, nor in any other county in this state with a smaller

capital than $100,000 actually paid in, in cash. Nor shall any company formed under this act, for the purpose of doing the business of fire or inland navigation insurance on the plan of mutual insurance, commence business if located in the City of Chicago, nor establish any agency for the transaction of business of said city, until agreements have been entered into for insurance with at least four hundred applicants, the premiums on which shall amount to not less than $200,000, of which $40,000 at least shall have been paid in cash, and notes of solvent parties, founded on actual and bona fide applications for insurance, shall have been received for the remainder; nor shall any mutual insurance company, in any other part of the state, commence business until agreements have been entered into for insurance with at least one hundred applicants, the premiums on which shall amount to not less than $50,000, of which $10,000 at least shall have been paid in cash, and notes of solvent parties, founded on actual and bona fide applications for insurance, shall have been received for the remainder. No one of the notes received as aforesaid, shall amount to more than $1,000, and no two notes shall be given for the same risk, or be made by the same person or firm, except where the whole amount of such notes shall not exceed $1,000; nor shall any such note be represented as capital stock, unless a policy be issued upon the same within thirty days after the organization of the company upon a risk which shall not be for a shorter period than twelve months. Each of the said notes shall be payable in part, or in whole, at any time when the directors shall deem the same requisite for the payment of losses by fire or inland navigation, and such incidental expenses as may be necessary for transacting the business of said company. And no notes shall be accepted as part of said capital stock, unless the same shall be accompanied by a certificate of a justice of the peace, or supervisor of the town or city where the person making such note shall reside, that the person making the same is, in his opinion, pecuniarily good and responsible for the same, and no such note shall be surrendered during the life of the policy for which it was given. No joint stock fire insurance company, organized under this act, or transacting business in this state, shall expose itself to any loss on any one fire or inland navigatlon risk or hazard to an amount exceeding ten per cent. of its paid up capital.

PARTNERSHIP-SUIT BY PARTNER AGAINST PARTNERSHIP. -A partnership firm owed W., one of its own members, $133.02, on a book account. The interest of W. in said partnership consisted of a one-fifth interest besides said book account. W. sold his interest in the partnership to D. and R., and they agreed to pay all claims, debts and demands against his share. Afterwards W. sued D. and R. on said agreement for the amount of his said claim, and obtained judgment for the full amount thereof. Held, That such judgment was and is erroneous. Judgment reversed. Opinion by VALENTINE, J.-Drake et al. v. Williams.

'TAXES INJUNCTION-VOID JUDGMENT.-1. Where, in an action brought by the owner of a tract of land to restrain the county treasurer from making sale of said tract for the taxes of a specific year, the only ground of relief stated in the petition is a present use for religious and charitable

purposes, the only tax referred to is the tax of the given year, and the only prayer for relief the enjoining of the sale for taxes of that year, except the general prayer for such other and further relief as may be just and proper; a decree restraining defendant and his successors in office not only from any proceedings to collect the tax of the given year, but also for ever thereafter from attempting to collect any subsequent tax upon the said tract, is void as to such subsequent taxes, and may be vacated at any time on motion by the general representatives of the county. Judgment reversed. Opinion by BREWER, J. — Beach, County Treasurer, etc. v. Shoenmaker, Trustee, etc.

PRACTICE-CONDEMNATION OF UNITED STATES LANDS FOR RAILROAD PURPOSES.-1. Where the court below sustains a demurrer to a petition of the plaintiff, on the ground that the petition does not state facts sufficient to constitute a cause of action, and the plaintiff afterwards files a new and amended petition, and takes his chances on that petition; held, that the plaintiff thereby waives any error of the court that may have been committed in sustaining said demurrer. 2. In a proceeding instituted by a railway company for the purpose of procuring the right of way for its railroad through the various tracts of land along its route, a person who is in possession of one of said tracts, but who has no title thereto or interest therein, the land belonging to the United States, can not recover damages for injury done merely to the land itself. Judgment affirmed. Opinion by VALENTINE, J.-Rosa v. The Missouri, Kansas & Texas Railroad.

LOCATION OF PUBLIC HIGHWAY-VOID PROCEEDINGS. 1. Where a board of county commissioners attempt to locate and open a road, as a public highway, and appropri ate private property therefor, without complying with the requisite conditions precedent giving jurisdiction, such proceedings are absolutely void, and on petition in error of a person whose land is thus attempted to be taken, without his consent, the district court of the proper county can vacate and set aside such final orders of the board, without any exception being taken thereto by the party complaining, where no appearance was made by the party before the county board in any of the proceedings had therein. 2. Under section 1, Laws of 1874, 14, of the act relating to roads and highways, an application, by pe tition to the board of county commissioners, signed by at least twelve householders, is a condition precedent to confer authority upon the board, under such law, to lay out, locate and open a road as a public highway; and while it is not absolutely necessary, in order to make the road valid, that the petition itself should show upon its face that all or any of the signers are householders of the county where the road is to be located, yet, the record of the proceedings should affirmatively show this fact when directly attacked. In such a case a board of county coinmissioners is acting in a special and limited capacity, and its jurisdiction should affirmatively appear upon the record. Judgment affirmed. Opinion by HORTON, J.-The Board of County Commissioners of Wabaunsee Co. v. Muhlenbacher. PRACTICE SUB-CONTRACTOR-MECHANIC'S LIEN. -1. Where a summons, issued to the sheriff of the county in which the action is brought, is made returnable in less than ten days, and the same is duly served one day before the return day thereof; held, that neither the summons nor the service is either void or voidable. 2. A sub-contractor who furnishes labor and material for the erection of a building has, under the laws of 1872, page 295, section 2, sixty days from and after the completion of such building, within which to file a mechanic's lien to secure his pay; and he is not bound to file his lien, in such a case, within sixty days from and after the time when he furnished such labor and material. 3. A sub-contractor who furnishes labor and material for the erection of a building, and who afterwards files a mechanic's dien thereon to se cure his pay, is not bound, under said laws of 1872, by any of the terms and conditions relating to the payment of money, contained in the original contract made between the owner and contractor, except by such of said terms and conditions only as prescribe the amount that is to be paid. 4. Where a contract is made for the erection of a building, the contract price for the erection thereof constitutes a fund, from which the sub-contractors are to be paid for their labor aud materials furnished. And if such fund is not sufficient to pay the whole amount of all the claims of the sub-contractors who are entitled to liens under said laws of 1872, then such claims must be paid from such fund

pro rata. Judgment affirmed. Opinion by VALENTINE, J.; HORTON, C. J., not sitting.-Clough et al. v. McDonald et al. COMPETENCY OF WIFE AS A WITNESS-INSTRUCTIONSPRACTICE IN ACTIONS FOR POSSESSION OF SPECIFIC PERSONAL PROPERTY.-1. A wife is a competent witness, as to the communications made to a third person by her husband in her presence and hearing, in all civil actions in which the husband is not a party to the suit, and when his rights will not be concluded by any verdict therein. 2. The court below instructed the jury that, "if you believe from the evidence that any witness has knowingly and willfully testified falsely to any material fact, you should totally disregard all the testimony of any such witness." Held, that such instruction is erroneous. Shellabarger v. Nafus, 15 Kas. 547. 3. In an action to recover the possession of specific personal property, when the property has been delivered to the plaintiff, and thereafter the plaintiff dismisses his action, without prejudice to a future action, and no answer or other pleading is filed by the defendant, but the defendant makes application under section 184 of the Code, Gen. Stat. 1868, 663, for the court to proceed to inquire into the right of property and right of possession of the defendant to the property taken; held, that such application is to be construed as a claim by the defendant for the return of the property; and also held, that upon such an application judgment may be rendered for the defendant for a return of the property, or the value thereof, in case a return can not be had, and damages for taking and withholding the same. Judgment reversed. Opinion by HORTON, C. J.Higbee v. McMillan.

ATTACHMENT BOND-PRACTICE-WHEN CAUSE TRIABLE. -1. The statute, Laws of 1870, p. 172, § 5, requiring in attachment proceedings an undertaking "in a sum not exceeding double the amount of the plaintiff's claim;" held, that a motion to set aside an attachment, for the reason that the sum named in the undertaking was only just the amount of the plaintiff's claim, might properly be overruled, and that, if the amount named was really insufficient to protect the defendant, the court might require additional security. 2. Where the sheriff returns on an order of attachment that both the appraisers summoned by him were duly qualified, proof, even if admissible to contradict the sheriff's return in this respect, that one of the appraisers was not at the time a householder, will not be sufficient to work a dissolution of the attachment. 3. Evidence that a party had contracted to sell a piece of land upon which he was not actually residing, and was from time to time receiving payments upon such contract, is strong evidence against his testimony that he was all the while intending to retain it for his homestead. 4. It is substantial error to force a defendant, over his objection, to go to trial at a term prior to that at which the action first became triable, and error sufficient to compel a reversal of a judgment rendered against him upon such trial. 5. The petition in this case was filed June 24th, 1873. On July 24th, 1873, a motion was filed to compel plaintiff to make his petition more specific and definite. This motion was confessed, and an amended petition filed on January 22th, 1874. On February 9th, 1874, a motion was filed to make this amended petition more definite ahd specific. On April 15th this motion was sustained as to some of the claims embraced in the petition, and overruled as to the rest. The plaintiff then with leave struck out the claims defectively stated. Application was then made for twenty days in which to file answer. This application was overruled, and defendant required to answer by April 17th. No conditions were attached to this order. The defendant filed his answer tendering an issue of fact by the 17th, and then asked to have the case continued on account of the absence of witnesses, and because the action was not triable at that term. This application was overruled, and on April 24th,'within nine days after the petition was first perfected, and at the same term, the defendant was forced into trial, and a judgment was rendered against him. Held, that under the statute then in force, Laws 1871, p. 273, § 5, this was error, and that this action was not triable at the same term at which issue was joined. 6. The laws of 1868, 1870 and 1871, in respect to the term at which actions are triable, considered, and the changes made thereby commented on and explained. Judgment reversed. Opinion by BREWER, J.-Gapen v. Stephenson. ACKNOWLEDGMENT OF DEBT-STATUTE OF LIMITATIONS OBLIGATION ΤΟ PAY INCUMBRANCES ON GRANTED PREMISES BY ACCEPTANCE OF DEED, SO CONDITIONED.— 1. An acknowledgment of a debt, made not to the creditor,

but to a stranger, does not avoid the running of the statute of limitations. Sibert v. Wilder, 16 Kas. 176. 2. In case of a note and mortgage, the latter being merely an incident to and security for the former, the mortgage is not barred until the note is. Waterson v. Kirkwood, 17 Kas. 9. 3. As soon as the note is barred, the mortgage is also barred, and a grantee of the mortgagor may interpose this defense to an action to foreclose the mortgage, whether the mortgagor does or not. 4. Where a note and mortgage are once barred, a subsequent revivor of the note by part payment, promise or acknowledgment of the payor, will revive the mortgage so far as it affects the interest of the payor in the mortgaged premises. 5. But such revivor of the note will not revive the mortgage as against a grantee of the mortgagor, or any other parties who have acquired interests in the mortgaged premises prior to the revivor of the note. 6. The acceptance of a deed, which in terms provides that the grantee is to assume a certain incumbrance on the granted premises, makes a contract in writing by such grantee to pay that incumbrance, upon which the holder thereof may proceed directly against the grantee and recover. 7. Such a contract is not a mere waiver of the statute of limitations by promise or acknowledgment, and therefore necessarily to be signed by the party to be charged thereby; but it is an original contract by which the grantee creates a liability that had no existence before. 8. Nor is the contract one merely of indemnity and to save the grantor harmless, but is a direct agreement and promise to pay the debt, a promise and agreement upon which the statute of limitations does not begin to run until the acceptance of the deed. 9. The same rules obtain where the deed specifies that it is made subject to a certain mortgage, though in the latter case the promise of the grantee is not to pay the mortgage absolutely and without any reference to the value of the property conveyed, but only that the premises shall stand charged with the mortgagedebt, and to the extent of its value be appropriated to the payment of such debt. 10. In an action to foreclose a mortgage in which subsequent grantees of the mortgagor are defendants, a written agreement between the grantor and grantees, outside of the conveyance by which, for value received, the latter promise to pay the note and mortgage or a certain amount thereof, is competent evidence against the latter. 11. Where testimony is offered, but upon objection is not admitted, and thereafter judg ment is rendered against the party making the objection, in proceedings in error, brought by said party to reverse the judgment, this court will not consider the case though such testimony was in, although it may appear that such testimony ought to have been admitted, unless it also appear that, if admitted, its effect must necessarily have been conclusive and would not have been destroyed by further testimony. Judgment reversed. Opinion by BREWER, J.; VALENTINE, J., concurring; HORTON, C. J., not sitting.-Schmucker et al. v. Sibert, Assignee, etc.

as

WILL-ESTATE IN FEE-TRUST.-1. A clause in a will "that my whole estate, real and personal, I hereby devise and bequeath to my wife C., in her own name and for her own purposes," standing by itself, would clearly give to the widow an absolute estate. The expression,"in her own name and for her own purposes," imports a fee, and is inconsistent with the idea of an intention to give her a life estate, or an estate in trust for the children. 2. A further provis. ion that the estate is given to the widow "with only this condition, that I wish, at the death of my wife C., that she should make an equal division of her estate to such children as shall survive her or their representatives," does not create an imperative trust. The intention of the testator, gathered from all the provisions of the will, controls the court. Hess v. Singler, 114 Mass. 56. Opinion by MORTON, J.-Sears v. Cunningham.

WILL CONSTRUCTION-BANKRUPT LEGATEE.-1. The general rule is well settled that a bequest or devise to the "heirs" or "heirs at law" of the testator will be construed as referring to those who are such at the time of the testator's death, unless a different intent is plainly manifested by the will. Abbott v. Bradstreet, 3 Allen, 587. 2. Where a legatee, who is one of the heirs at law of the testator, to whom property is to be paid over by trustees appointed under the will, after the death of A. without issue, has, since the death of the testator, become bankrupt, his interest passes to his assignee. Gardner v. Hooper, 3 Gray, 398; Blanchard v. Blanchard, 1 Allen, 223; Nash v. Nash, 12 Allen, 345; Dunn v. Sargent, 101 Mass. 336. And if it is not shown that such interest has been reconveyed to the bank rupt by the assignee, it can not, as matter of law, be presumed that it was so reconveyed; and it can not be decreed to be paid over to him, his administrator or heirs, but must be retained in the hands of the trustees till it is ascertained to whom it belongs. Opinion by MORTON, J.-Minot v. Таррап.

SHERIFF'S FEES-TAXATION OF COSTS.-1. The fees to which sheriffs and their deputies are entitled for service of processes are fixed by law,- Gen. Stat., ch. 157, § 4, as amended by Stat. 1865, ch. 101,—and are not the subject of contract, so far as concerns the taxation of costs. Items, therefore, in such taxation, for the expenses of a "keeper" put over attached property in the house or place of business of the defendant, or for "custody," by which is understood a charge for the responsibility which the officer is under when he thus places a keeper over the property, not being included in the statutes, are not legal fees which may be included in the costs to be taxed. 2. If personal property liable to attachment can not be removed without injury or inconvenience, the statutes provide a way by which the attachment may be made without such removal; otherwise the attachment by an officer contemplates the immediate taking and keeping possession of the same by him, in order to enable him to seize the same upon any execution which may issue in favor of the plaintiff, in the suit iu which the attachment is made. Gen. Stats., ch. 129, §§ 32-49, 57. See also, Malcolm v. Spoor, 12 Metc. 279; Boynton v. Warren, 99 Mass. 172; Williams v. Powell, 101 Mass. 467; Shattuck v. Woods, 1 Pick. 171; Davis v. Stone, 120 Mass. 228; Weston v. Weston, 102 Mass. 514; Briggs v. Taunton, 110 Mass. 423; U. S. Manuf. Co. v. Clark, 119 Mass. 163. Opinion by LORD, J.-Cutler v. Howe.

SALE-EVIDENCE-SUBSEQUENT INSOLVENCY AS PROOF OF FRAUD.-1. In an action of replevin against a deputy sheriff who had attached, in favor of one W., as the property of A., some flour, sold by the plaintiffs to A., who soon afterwards became a bankrupt, the assignees of A. being the real parties defendant, it was competent for the plaintiffs to put in evidence the schedules of A., filed in bankruptcy, for the purpose of proving that he was insolvent at the time he filed them, if that fact was admissible to show the sale fraudulent and void. Wellington v. Jacobson, 121 Mass. 157. 2. But the fact that A. was insolvent at a time subsequent to the sale to him by the plaintiffs was not competent to prove his insolvency at the time of the sale, unless it was shown that his situation had not materially changed between the two dates; or unless the insolvency was so near, in point of time, to the sale as fairly to lead to the inference that he was insolvent at the time of the sale. 3. Whether, in the absence of proof that A.'s situation had remained the same, or that his insolvency was not caused by losses after the sale, the insolvency was so near the sale as to make it admissible, was a question within the discretion of the presiding justice, to be exercised in view of all the circumstances of the case as they appeared at the trial. Opinion by MORTON, J.-Hosmer v. Oldham.

CERTIORARI-PROCESS OF SELECTMEN OF TOWN.-On a petition to quash the proceedings of the selectmen of a town, claiming to act under Statutes of 1873, ch. 214, in making certain public improvements, and in assessing the expenses thereof on the estates benefited, it was held: 1. That a writ of certiorari lies only to correct the errors and restrain the excesses of jurisdiction of inferior courts, or officers acting judicially. R. v. Lediard, Sayer, 6; R. v. Lloyd, Cald. 309; In re Constables of Hipperholm, 5 D. & L. 79, 81; R. v. Hatfield Peverel, 14 Q. B. 298; R. v. Salford, 18 Q. B. 687; Parks v. Boston, 8 Pick. 218; Farmington v. County Com., 112 Mass. 206. 2. The selectmen of a town are not a court, and, independently of the Statutes of 1873, ch. 214, exercise no judicial functions which could be reviewed by

writ of certiorari. Young v. Yarmouth, 9 Gray, 386, 390; Robbins v. Lexington, 8 Cush. 292; Hooper v. Bridgewater, 102 Mass. 512. 3. Section 9 of said act providing that "this act shall take effect at a legal meeting called for the pur. pose," the meeting at which said statute was accepted by the town, having been held on the second day after its passage, under a warrant served on the inhabitants some days before its passage, was not legally called; the statute never took effect; the selectmen never acquired any judicial powers, and the petitioners have their appropriate remedy by action. Ewing v. St. Louis, 5 Wall. 413, 418; People v. Court, 1 Hill, (N, Y.) 674; In re Daws, 8 A. & E. 736; s. C., 1 P. & D. 146. Opinion by GRAY, C. J.-Locke v. Lexington.

STATUTE OF FRAUDS AS A COVER TO FRAUD.- Where the statute of frauds has been used as a cover to a fraud, equity will relieve against its provisions. 19 Ind. 313; Id. 415; 36 Id. 27. An administrator having made default, it was verbally agreed between him, his wife and one of the sureties on his bond, that the latter should pay one-half of his defalcation as administrator, and certain other of his debts; in consideration of which said administrator was to convey to said surety two 80-acre tracts of land, one of which said surety was to reconvey to the former's wife. The conveyance of the two tracts was made to the surety, who thereupon refused to execute the deed to the wife as agreed upon. Held, the agreement to reconvey should be enforced. Judgment reversed. Opinion by PERKINS, C. J. -Tague v. Fowler et al.

PROMISSORY NOTE - AUTHORITY TO FILL BLANKS. — Where a party to a negotiable instrument intrusts it to another, with blanks not filled up, such instrument carries on its face an implied authority to fill up the blanks and perfect the instrument; and as between such party and innocent third parties, the party to whom it is intrusted must be deemed the agent of the former, and his act is the act of the principal. 22 How. 96, 107. But a party, to whom a note has been thus intrusted by the persons who have signed it, has no authority to alter it in those respects in which it was complete at the time of its signing. And where the note was complete and perfect when signed, as to the payment of interest, the insertion of the words, "after maturity," by, the party to whom it was intrusted, invalidated the note as to the original signers. Judgment reversed. Opin. ion by WORDEN, J.-Coburn et al. v. Webb.

POWER OF EXECUTORS TO SELL PERSONAL PROPERTY OF DECEDENTS.-At common law, an executor or adminis trator could dispose of the assets of the decedent, and had the same power over them that the decedent had in his life. But under the statute, the personal property of the decedent must be sold at public auction, and an executor or administrator can not sell such personal property at private sale, unless authorized to do so by an order of the proper court; and where one purchases such property, as bank stock, belonging to a decedent's estate, from a person claiming to be the executor or administrator, at private sale, the purchaser is bound to know that such sale has been authorized by the proper court, and he buys at his peril. Where bank stock belonging to a decedent's estate was sold by the executor at private sale without an order from the proper court; held, the sale was invalid. Judgment reversed. Opinion by HOWK, J.-Weyer, Admr., etc., v. Second, etc., Bank of Franklin et al.

MANUFACTURED ARTICLE-IMPLIED WARRANTY.-When a manufacturer undertakes to manufacture an article at a fair price, for a special purpose, there is an implied warranty that the article is reasonably fit for the purpose designed; but the implied warranty will not go beyond the thing warranted, and the use for which it is applicable and designed. Where the article manufactured and sold was "a Chandler & Taylor Curved Slide Muley Saw-Mill," there was no implied warranty that it would saw and work as