and there is no mention of any dissension on the part of either of the associate justices, Sutherland and Marcy. Seventeen volumes of Wendell's Reports were afterward issued, and over ten years elapsed before a decision was had in the Court of Errors, where that of the courts below was wholly reversed, Chancellor Walworth saying, at the close of his opinion: "The validity of the award in such a case is a purely legal question * * ** and I am of opinion that the defendant had a right to set up this objection to the award in the court of law, although perhaps the Court of Chancery, upon the authority of some of the cases cited on the argument, might have had concurrent jurisdiction."

A better example to illustrate the confusion in law and equity procedure could scarcely be found. Here are two men, whose legal opinions received the greatest weight as precedents and authority, always clear, logical, and convincing, holding directly opposed views as to the jurisdiction of the two courts.

Chitty, in his "General Practice of the Law," cites a case where the object was to charge the separate estate of a wife who had joined with her husband in making a promissory note. Two counsel, "each eminent for his great attainments"- one a common-law barrister, the other an equity counsel-advised equally erroneous proceedings, and before their mistakes could be corrected the estate had been frittered away, and justice utterly defeated. "This," says Chitty (the italics are his), "is one of the very numerous cases, almost daily occurring, illustrative of the consequences of the want of, at least, a general knowledge of every branch of the law."

If the learned author had been asked what a great portion of that "general knowledge' was, he must have acknowledged that it consisted largely in being able to understand the trivial niceties and the wellnigh inappreciable distinctions which divided the forms of actions, and the courts of law and of equity.

The points of division of courts of law and equity were not so important. We know quite well that both were bound by established rules and precedents. Fraud, accidents, and trusts were nearly equally cognizable by both; and equity, which some thought was able to abate all the rigor of the common law, was unable to make lands devised liable for contract debts, and was obliged to leave it to a statute of Parliament to effect that object. In fact the only essential differences between the two systems were in the different modes of administering justice in each—in the pleadings, in the mode of proof, mode of trial and mode of relief; and had the Chancellor in the beginning heard and decided all cases himself, this separation of law and equity could never have taken place.

Such were the means provided for the enforcement of civil rights: and though answering well enough for the times in which they were invented, they had gradually become cumbrous and unmanageable.

More than this, the ends of justice were often defeated by expense and delay. The ablest advocates found it often impossible to distinguish between law and equity jurisdiction; and after a selection of the proper court it was not certain that they might not blunder in the choice of the form of action; while learned and astute judges differed widely in both these particulars, each seeming to have equally good ground for his opinion. It was often necessary to

proceed in the courts of equity for evidence on which to begin an action in the courts of law; and not unfrequently there must be a return to the courts of equity, with a prayer for relief against the rigor of the judgment. Speedy relief was rarely possible; and how many persons, defrauded of their just rights, preferred to endure the injustice, rather than submit to the endless waste of time and money attendant upon all litigation, is scarcely calculable.

At this time, Mr. David Dudley Field, a man of the keenest perceptions and broadest views, equal in these respects to Brougham, and his superior in energy and practicability, essayed to accomplish what had baffled the finest legal minds of England and this country. He started out unaided to reform and reshape completely our whole remedial law. From 1837 to 1846 he continued, in a series of contributions, with undiminished vigor to advocate the changes he believed so necessary. Immediately before the Constitutional Convention had met, similar articles were published; and during the summer, while the convention was in session, article after article appeared from his pen in the columns of the Evening Post. Principally to his efforts (for from the conservative profession to which he belonged he secured few allies) the delegates were induced to take decisive steps toward a furtherance of the reforms we enjoy to-day. These articles, published during these years, in reality outlined all the cardinal provisions of our Code, of which in truth he is the inventor. It is not often that the originators of great reforms live to see the triumph of the principles they advocate; but Mr. Field, misunderstood and misjudged at the outset, finds himself victorious in the end. Not only New York, but twenty-seven States, India and England bear witness to the feasibility of his plan, and the breadth and accuracy of his views.

The framers of our Constitution of 1846 then, yielding to the demand of the times, united the courts of law and of chancery into a supreme court having the same jurisdiction enjoyed by each before, and provided that the legislature, at the first session immediately following the adoption of the constitution, should appoint a commission "to revise, reform, simplify, and abridge the rules and practice, pleadings, forms, and proceedings of the courts of record of this State."

In the act of the legislature the commissioners were instructed "to provide for the abolition of the present forms of actions and pleadings in cases at Common Law, for a uniform course of proceeding in all cases whether of legal or equitable cognizance."

* * *

Several changes were made in the members of the commission; but, finally, Arphaxed Loomis, David Graham and David Dudley Field, on February 29, 1848, reported complete the New York Code of Procedure.

After dividing remedies into actions and special proceedings, and stating clearly the cases where appeals would lie to the Court of Appeals, and providing for the holding of circuits for the more rapid transaction of business, and after defining the jurisdiction of the various courts, all which provisions are comprised in Part I, the commissioners proceed to provide for the reform which we have endeavored to show was so imperatively necessary.

In section 69 (62) of the Code is found this sweeping provision: "The distinction between actions at law

and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this State, hereafter, but one form of action

THE CASE OF TWYCROSS AGAINST GRANT. LONDON, June 9, 1877.

the redress of private wrongs, which shall be denominated a civil action."

The early practice reports are filled with cases containing elaborate opinions as to the real meaning of this section.

By some judges it was held, that not only did it abolish the distinctions existing between law and equity, but that it changed utterly the distinct remedies which formerly had been secured in the two tribunals.

As to the first part of this view, a little examination and reflection convinced the judges that this would have been impossible. The constitution, and the very act creating the commission, had recognized the separate existence of law and equity; and in fine no statute could abolish a distinction inherent in the nature of things. Gradually the courts took this reasonable ground, that though law and equity were to be administered in the same tribunal, and by a similar course of procedure, their separate existence was an absolute necessity.

Then in Otis v. Sill, 8 Barb. S. C. R. 201, a new discussion was begun. In that case it was denied that the abolition of legal and equitable actions went so far as to allow law and equity to be administered in the same action, or that both legal and equitable relief could be demanded in the same complaint, or that an equitable defense could be interposed to a complaint alleging a purely legal cause of action.

This, of course, was a decision which demanded attention. If the views there set forth were correct, very little progress had been made by having law and equity administered in the same tribunal, and in the same form of proceedings, and the hardship of nonsuit from the selection of the proper court was about as great as ever.

Justice Parker, however, in Getty v. Hudson River Railroad Company, 6 How. Pr. 269, in a very able opinion showed how erroneous were views such as those expressed in Otis v. Sill. The discussion was continued for some time; but the amendment to the Code of 1852 put this question at rest forever. By section 167 it was provided, that the plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both; and by section 150 the defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore legal or equitable, or both.

From this consideration of the cases which are now harmonized, or their adjudication annulled by amendments to the Code, it may be said that, although there still exists the difference between legal and equitable reliefs as before the Code, there is but one remedy for their acquisition. There exists no longer the distinction between actions at law and suits in equity. Legal or equitable relief, or both, may be demanded, or legal or equitable defense, or both, may be interposed in the same action, and the court in its discretion may give either legal or equitable relief, or both, that is, may adjudge damages by way of compensation, or may decree specific performance, or both.

(To be continued.)

have given to this case a celebrity which its own proportions would not have warranted. "Baron Albert Grant, the defendant, has attained of late years a notoriety not altogether enviable. His election to the House of Commons for Kidderminster was set aside for bribery and corruption. In more than one trial in a court of justice it has been shown that he pushed his financial undertakings by wholesale corruption of the press. He purchased and beautified Leicester Square, and presented it to the city of London, with the object, publicly avowed, of realizing a profit out of the celebrity which the transaction would attach to his name. In the several hearings of the case of Twycross v. Grant, he has appeared in his own defense, and argued with signal ability, though the first barristers of the Kingdom were retained in his behalf. His personal appeals to judge and jury, his bold attacks and unsparing denunciations of press, public and individuals, opposed to him, and his plucky fight against heavy odds, won the admiration and sympathy of the unthinking crowd, and gave a wide currency to his name and sayings when the case was tried at Nisi Prius.

Of the defendant's history, beyond the leading facts outlined above, I cannot speak with certainty. It is said he is of Hebrew extraction; that Grant is not his real name; that his title of "Baron" (which is not recognized in England at all) was obtained by questionable means. But of these sayings I know no more than that they are current. I have heard that he occupied a very humble position in a "city" house, and that his fortune (such as it may now be, though it certainly was once very large), was amassed in the mysterious business of "promoting companies." These details form one of the elements, and a very large one, in the public aspect of the case under notice; but, apart from this element, it is not without great professional interest. In 1873 a prospectus was issued of the Lisbon Steam Tramways Company. The prospectus had been prepared by Mr. Grant, and after it had been approved by the directors he had caused it to be printed and circulated. The company was formed to construct certain tramways with a capital of £350,000, and the prospectus mentioned one contract, and only one-viz., a contract between the company and the contractors, Clark and Punchardthe co-defendants with Mr. Grant in the present action to construct the line for £309,000. The plaintiff took seventy shares, for which he paid £700. The enterprise proved a complete failure, and it was then discovered that in addition to the contract between the company and the contractors two other contracts had been made before the prospectus was issued, whereby the contractors had agreed to pay large sums to the Duke of Saldanha for the concession of the company and to Mr. Grant for his services in forming the company. The effect of these two contracts was that out of the sum of £309,000 agreed to be paid to Messrs. Clark and Punchard for making the tramways in the contract which was mentioned in the prospectus no less than £57,000 was passed on by them to Mr.Grant and the Duke of Saldanha in the contracts that were not mentioned. The question in the case was whether the plaintiff was entitled, by reason that these contracts were not mentioned, to recover from Mr.

* *

The

Grant and Messrs. Clark and Punchard the £700 he had paid for his shares, and the liability was apparently sought to be established exclusively on the ground of a clause in the Companies' Act of 1867. The question of liability at common law was not argued, and need not be considered. The clause of the act of 1867 runs- "Every prospectus of a company * * * shall specify the dates and the names of the parties to any contract entered into by the company or the promoters * * *thereof before the issue of such prospectus * whether subject to adoption by the directors or the company or otherwise; and any prospectus * * * not specifying the same shall be deemed fraudulent on the part of the promoters * * * as regards any person taking shares in the company on the faith of such prospectus, unless he shall have had notice of such contract." With respect to this clause, it may be taken as found, first, that the defendants were promoters of the company, and, secondly, that the plaintiff took his shares on the faith of the prospectus, not knowing any thing of the contracts that were not mentioned. The single missing link, therefore, is whether the contracts that were not mentioned were such as the clause says must be mentioned or the prospectus be regarded as fraudulent. clause speaks of "any contract entered into by the * ✶ ✶ promoters," and it is at once obvious that the contracts in question must have some reference to the promotion of the company-must be entered into by the promoters in their capacity as promoters. Contracts could not be required to be mentioned in a prospectus which were in no way connected with the business of the prospectus. Can any further definition be made of the character of these ancillary contracts? It was contended on the part of Mr. Twycross that if they were such that a knowledge of them would affect the judgment of an investor in applying for shares, they came within the meaning of the clause, and must be mentioned; while the argument on the other side was that the clause must be restricted to contracts which affected the company with some liability or burden. It may fairly be assumed that the object of the clause was to make the prospectus - the invitation to investors-complete; and, tested by this intention, it would seem that the narrower restriction sought to be attached to the clause must be rejected. After all, the burden of proof that the scope of the clause must be contracted lies upon those who would contract it. The words would naturally include all contracts of promoters which had to do with the promotion of the company, and reasons must be given for a narrower interpretation.

In the trial at Nisi Prius Mr. Twycross recovered a verdict for £700, the amount claimed by him; and this verdict was upheld by the Court of Common Pleas, consisting of Lord Coleridge, Mr. Justice Grove, and Mr. Justice Lindley. After a prolonged argument before the Court of Appeal, two of the learned judges of this court- the Lord Chief Baron Kelly and Lord Justice Bramwell-have held that the verdict cannot be sustained, while another learned pair - the Lord Chief Justice and Lord Justice Brett - have approved it. The Appeal Court being thus equally divided, the judgment of the Court of Common Pleas remains unshaken, but notice has been given of a further appeal to the House of Lords.

Lord Justice Bramwell argued against the policy of paternal legislation, but this can scarcely be admitted to determine the meaning of provisions actually

adopted. He pointed out also the lengths to which the argument would run - that every contract must be mentioned which would affect the judgment of an investor-so that it might be necessary to mention the fact that a director was engaged to be married to a promoter's daughter. But while this may be allowed as valid against the too extensive interpretation of the plaintiff's counsel, it does not touch the meaning above suggested. The engagement could not be regarded as a contract entered into by the promoter as a promoter. The construction of the clause adopted by the Lord Chief Baron was even more severe in its simplicity. He held the contracts to be mentioned to be such, and such only, as were entered into by promoters as representing the company that was to be, which would certainly reduce the benefits of the clause to very narrow proportions; besides which the section expressly refers, as the Lord Chief Justice pointed out, to contracts which do not require to be adopted by the company as well as to those that do. The elaborate judgment of the Lord Chief Justice, supported as it is by Lord Justice Brett, appears to dispose of the narrower construction of the clause insisted upon on the other

side.

There were several minor points of interest in the case of Twycross v. Grant, and not the least among them was the question whether Lord Chief Justice Coleridge was justified in allowing the plaintiff to go on and prove his case at Nisi Prius after the defendants had offered to agree to a verdict for the whole amount claimed. It is well known that this proceeding startled the profession at the time, and it seems to have created some astonishment among the judges of the Court of Appeal. Lord Justice Bramwell approved, indeed, of the resolution of Lord Coleridge, subject, however, to the remark that the plaintiff might not be entitled to the additional costs occasioned by his insisting upon proving his case. It is not likely that another plaintiff will soon arise who, not content with obtaining all he demands, persists in demonstrating his claim to receive it; and if such a remarkable person should appear, it is perhaps more probable than otherwise that the presiding judge will refuse to imitate Lord Coleridge in the exercise of his discretion. The course of the trial would indicate that the motive of plaintiff's counsel was two-fold. Of course Mr. Twycross was not the only person who purchased the shares of the Lisbon Steam Tramways Company. There are, I believe, over eighty cases pending against Mr. Grant for recovery of money paid on like account, and depending, substantially, on the same law and the same facts-the whole amount involved being rather portentious. There were particular reasons why it was desirable, on the part of plaintiff's counsel, to make the case of Twycross the test case; and, of course, the same reasons rendered the defendant anxious to get Twycross out of the way. When, therefore, defendant offered to agree to a verdict, it was with the distinct (and somewhat threatening) notice that all the other actions would be defended against; and when Sir Henry James, for the plaintiff, insisted upon going on, and Lord Coleridge permitted him to do so, the whole array for the defendant, including J. P. Benjamin, Mr. Hawkins and other eminent counsel, abruptly left the court. The other motive was extra-professional. Mr. Twycross and Mr. Graut had abused one another in public and private and bandied unpleasant epithets, until both may be supposed to have "got up" considerable heat. The

relations of Twycross to the whole transactions enabled the plaintiff to import into the case a good deal of irrelevant matter, of the kind usually known as "dirty linen," and he hoped to show that defendant's linen was dirtier than his own; in fact, about the dirtiest that ever was seen. Some people think he succeeded.

WHEN INJURIES RESULTING FROM VIOLATION OF MUNICIPAL ORDINANCE DO NOT GIVE RIGHT OF ACTION.

SUPREME COURT OF RHODE ISLAND-FEBRUARY 24, 1877.

HEENEY V. SPRAGUE.

The violation of a duty imposed by a municipal ordinance, and sanctioned by a fine, will not support an action on the case for special damages in favor of one injured by the violation and against the violator.

MOTION in arrest of judgment. The action was

brought by William Heeney and wife against Mary Sprague for injuries received by Mrs. Heeney in falling upon a slippery sidewalk in front of defendant's premises. The sidewalk had become slippery from a neglect on the part of defendant to remove the snow therefrom. A city ordinance of the city of Providence in which such premises were situated, required the removal of snow from the sidewalk in front of any premises in the city and prescribed a penalty for a failure to comply with the ordinance. The jury at the trial rendered a verdict in favor of plaiutiff for $2,750.

J. E. Risley and W. W. Douglass, for plaintiffs.
Thurston, Ripley & Co., for defendant.

DURFEE, C. J. The plaintiffs base their right to maintain this action on the authority of cases which, they claim, hold that where a person is required by statute to do an act and neglects to do it, any person specially injured by the neglect is entitled to recover his damages in an action on the case, if no other remedy is given, and that, too, even when the statute imposes a penalty for its violation. Couch v. Steel, 3 El. & B. 402, 411; General Steam Navigation Co. v. Morrison, 13 C. B. (N. S.) 581, 594; Caswell v. Worth, 5 El. & B. 849: Atkinson v. New Castle & Gateshead Water Works Co., L. R., 6 Exch. 404; Aldrich v. Howard, 7 R. I. 199. It has been doubted, however, whether the cases go so far as is claimed. This doubt is expressed in Flynn v. Canton Co. of Baltimore, 40 Md. 312, and in that case the attempt is made to confine the liability to cases in which the neglected duty is prescribed for the benefit of particular persons, or of a particular class of persons, or in consideration of some emolument or privilege conferred, or provision made for its performance, and to show that it does not extend to a duty imposed without consideration and for the benefit of the public at large, the only liability for the neglect of such a duty being the penalty prescribed. And this view is supported by strong, if not irrefragable authority. Hickok v. Trustees of Plattsburg, 16 N. Y., note on p. 161; Eastman v. Meredith, 36 N. H. 284; Bigelow v...Inhabitants of Randolph, 14 Gray, 541; Aldrich v. Tripp, Index C, 14. But even supposing the liability is not subject to any such qualification, then, inasmuch as the neglected duty was not enjoined by statute but by a municipal ordinance, the question arises whether in this respect an ordinance is as effectual as a statute. There are many things for

bidden by ordinance which are nuisances or torts, and actionable as such at common law. The question does not relate to them. The defendant has not done any thing injurious to others which she was forbidden to do; she has simply left undone something beneficial to others which she was required to do under a penalty in case of default. The thing required was not obligatory upon her at common law. It was a duty newly created by ordinance, which, but for the ordinance, she might have omitted with entire impunity. The question is, whether a person neglecting such a duty is subject not only to the penalty prescribed, but also to a civil action in favor of any person specially injured by the neglect. If the liability exists, it is quite a formidable one. A fall on the ice is often serious in its consequences. The damages resulting from it may amount to thousands of dollars. And under the ordinance, the liability, if it exists, may be visited upon either the owner or the occupant of the abutting premises, or upon any person having the care of them. And further, if the liability exists under the ordinance in question, it exists pari ratione, under every ordinance prescribing a similar duty. To hold that it exists is therefore to recognize, outside the legislature, a legislative power as between individuals which, though indirectly exercised, is nevertheless in a high degree delicate and important. This we ought not to do, unless upon principle or precedent our duty to do it is clear; for we do not suppose that the creation of new civil liabilities between individuals was any part of the object for which the power to enact ordinances was granted.

In some of the cases the origin of the liability upon a statutory duty is ascribed to the statute of Westminster 2, cap. 50; 2 Inst. 485-6. See Couch v. Steel, 3 El. & B. 402, 411; Aldrich v. Howard, 7 R. I. 199, 214. That chapter, however, relates only to statutes; it does not extend to municipal ordinances. But even if the liability has its origin in the common law, we do not find that it has ever been held to extend to a neglect of duty enjoined simply by a municipal ordinance, and we think there are reasons, apparent from what we have already said, why it should not extend to it. The power to enact ordinances is granted for particular local purposes. It includes or is coupled with a power to prescribe limited punishments by fine, penalty, or imprisonment for disobedience. No power is given to annex any civil liability. The power, being delegated, should be strictly construed. It would seem, therefore, that the mere neglect of a duty prescribed in the exercise of such a power should not be held to create, as a legal consequence, a liability which, within the power, could not be directly imposed.

The plaintiffs, in support of the action, refer to Jones v. Firemen's Fund Insurance Co., 2 Daly, 307, and Bell v. Quinn, 2 Sandf. 146. Neither of these cases is like the case at bar. The first was an action upon a policy of insurance containing a provision that the policy should be void whenever any article should be kept in greater quantities than the law allowed, or in a manner different from that prescribed by law, unless provided for in the policy. The plaintiff, who was insured, kept a kind of fireworks, called "colored lights," contrary to a city ordinance. The court decided that city ordinances within the city limits have all the force and effect of law, and that the plaintiff, therefore, could not recover. Here the only question was whether a city ordinance was a law in the sense in

which the word was used in the policy. The court, in deciding that it was, expressed itself broadly; but its language, in so far as it covered more than the point decided, was obiter dictum. The case of Bell v. Quinn, 2 Sandf. 146, involved the effect not of a city ordinance but of a city charter. The action was upon a contract entered into in violation of the charter, not for damages resulting from its non-observance. The court said: "We will not say what the consequence would be if the prohibition were found in an ordinance of the corporation instead of the statute law. 2 Sandf. 151." And see Ex parte Dyster in the matter of Moline, 1 Meriv. 155; also in 2 Rose, 349; Kemble et al. v. Atkins et als., 1 Holt's N. P. 427 and note; 7 Taunt. 260. The defendant, on the other hand, has referred us to three cases: Vandyke v. City of Cincinnati et al., 1 Disney, 532; Kirby v. Boylston Market Asso., 14 Gray, 249; Flynn v. Canton Co. of Baltimore, 40 Md. 312. These cases are all in point, for they are exactly like the case at bar. It was held in each of them that the only liability of the delinquent, under the ordinance, was to pay the penalty prescribed by it, and that the action could not be maintained. These decisions, in the absence of any case to the contrary, are entitled to our respect as authority, and for the reasons above indicated we agree with them. See Brown, adm'r, v. Buffalo & State Line R. R. Co., 22 N. Y. 191; Administrator of Chambers v. Ohio Life & Trust Co., 1 Disney, 327, 336.

The defendant's motion in arrest of judgment is sustained. Judgment arrested.

NOTES OF RECENT DECISIONS. Action: against one inducing violation of contract.— An action may be maintained by one injured by the violation of a contract between him and another against a party who has maliciously induced the other to violate such contract. Sup. Ct., North Carolina, Jan., 1877. Jones v. Stanley.

Bailment: title of finder of money.-Where one finds money and leaves the same in the hands of another for safe-keeping, the finder may maintain an action against such bailee for conversion. Sup. Ct. of Appeals, Virginia, April, 1877. Tancil v. Seaton.

Chattel mortgage: what sufficient description of property in: parol evidence to identify: provision as to future advances.- A description which will enable third persons to identify the property is sufficient. The description in the deed was as follows: Seventeen head of horses, three mules, eight wagons complete, six carts and horses complete, eighteen scrapers and attachments. Held, sufficient. Parol evidence is admissible to identify the property, which the mortgage itself indicates. A provision in a mortgage for future advances, if free from fraud, is not objectionable. Sup. Ct., Tennessee. Atwood v. Brown (Tenn. L. Rep. June, 1877).

Criminal law: attempt to commit incest.-To constitute an attempt to commit incest there must have been some step taken toward the actual commission of the offense. A mere effort by persuasion to induce a female to yield to incestuous intercourse, does not amount to an attempt. Where a man after unsuccessfully persuading his niece to yield to him, then attempts to accomplish his purpose by force, he is not guilty of an attempt to commit incest. To constitute incest there must have been a mutual consent of the

parties. Sup. Ct., Illinois, February 6, 1877. Cox v. People.

Damages: action upon covenants in deed: measure where failure is partial.-In an action of covenant brought on covenants in a deed, where the title which the vendor conveyed has only partially failed, compensation for the partial failure is the usual measure of damages. Sup. Ct., Pennsylvania, Jan. 2, 1877. Knowles v. Kennedy.

Evidence: certified copy of chattel mortgage.-A certified copy of a chattel mortgage is no proof of the existence or execution of the original. The original must always be produced. New York Sup. Ct. Gen. Term, 4th Dep., April, 1877. Sunderlin v. Wyman.

Mortgage: upon property to be acquired.-A mortgage intended to cover after-acquired property can only attach itself to such property in the condition in which it comes into the mortgagor's hands. New Jersey Ct. Ch., May, 1877. Williamson v. N. J. S. R. R. Co.

Official bond: presumption as to acts of officer in action on.-H. was appointed superintendent of Indian affairs to succeed himself, and at the date of the execution of his second bond there was a balance due the United States of the moneys received by him on his first bond. Held, that there could be no presumption that this sum had been illegally appropriated by the officer, but the fact must be proved by the party claiming or alleging it; and that in the absence of such proof, the presumption is, that this balance was then in the hands of the officer, to be applied and accounted for under his second bond. United States Cir. Ct., Oregon, May 7, 1877. United States v. Earhart (Chic. L. News).

Official bond: breach of condition in: bond of constable.-A levy and seizure by a constable of the property of persons not defendants in the execution is a breach of the condition of his official bond, for which the sureties are liable. An unsatisfied judgment against the constable for the conversion of the property wrongfully seized by him, is no bar to an action on his bond against such sureties. Sup. Ct. District of Columbia. United States v. Hine (Wash. L. Rep. June, 1877).

Partnership: what does not constitute.—An agreement by which a debt of A is transferred to, and assumed by B, and is to be paid by B out of the profits and proceeds of a partnership, does not have the effect to make A a member of such partnership. Sup. Ct., Minnesota, May 15, 1877. Delaney v. Timberlake (N. W. L. Rep.).

Real estate: title to: construction of will.--By his will testator gave his daughter certain real estate, to be held by her husband as trustee for her children; by a codicil he explained his intention, to give her childreu living at his death, and the lawful issue of any of them deceased and to their heirs forever, share and share alike. The devisee and her husband are over seventyfive years of age, and two children born to them survive, unmarried. They all joined in a contract of sale. Held, not to make a perfect marketable title, because (1) the law recognizes no period at which the possibility of issue ceases; and (2) the daughter took only a life estate, with remainder to children and grand-children living at her death. Sup. Ct., Pennsylvania, May 7, 1877. List v. Rodney.

Removal of cause: when jurisdiction of Federal court attaches. Where a proper application has been made for the removal of a cause from a State to a Federal court, a bond given and approved, the jurisdiction of the Federal court attaches, and the plaintiff cannot