oppression and injustice, and puts it out of the power of the court to subject you to the danger of another trial, except at your election and request. We believe that you have the right to waive the protection thrown around you by the Constitution for the sake of what may seem to you a greater good. But let me now solemnly warn you to consider well the choice you shall take. Another jury, instead of acquitting you altogether, may find you guilty of the whole indictment, and thus your lives may become forfeit to the law. If you choose to run this risk, and to again put your lives in jeopardy, it must be by your own act and choice, being neither compelled nor advised thereto by the court; and when your solemn election shall have been put on record, the court will hold you forever after estopped to allege that your constitutional rights have not been awarded to you. Before we enter of record an order for a new trial as to you, we will give you one week to ponder carefully on this subject, and consult with your counsel as to what will be your safest and best course.' In State v. Commissioners, 3 Hill (S. C.), 239, the defendants were indicted in two counts for obstructing a public street. The trial resulted in a verdict of guilty as charged in one count of the indictment, nothing being said as to the other. A new trial was granted upon the motiou of the defendants. It was held that the next trial must be upon both counts of the indictment. In the opinion Butler, J., says: "If the verdict of guilty had remained it would have protected them perhaps against another indictment for the same offense. As long as a verdict of guilty remained on the record, there was a finding; but what proceeding is there now on it? I consider all the proceedings on the indictment since the finding of the grand jury, to be set aside at the instance and for the benefit of defendant." As before stated, the States of Kansas, California, Indiana and Kentucky have all held to the same doctrine. See State v. McCord, 8 Kan. 232; People v. Keefer, supra; Veatch v. State, 60 Ind. 291; Com. v. Arnold, 6 Crim. Law Mag. (Ky.Ct. of App.) 61. But it is claimed by plaintiff in error that these decisions were made by virtue of the statutes of those States, which provide in substance that when a new trial is granted the parties shall be in the same position as if no trial had been had; some also providing that the first trial and verdict shall not be referred to on the second trial, nor shall the first verdict be pleaded in bar of a conviction, on the second trial, either in the evidence or argument. It is true the decisions referred to have in some instances been predicated upon the statutes referred to, and did a similar statute exist in this State, much of the trouble in this case would be obviated. But it may also be observed that if the clause in the bill of rights in both the Federal and State Constitutions, that a defendant shall not be twice put in jeopardy of life or limb for the same offense, is to be his protection, as argued by his counsel, it is quite clear that a simple legislative enactment of the States cannot override or take away this protection, and the enactments referred to would be unconstitutional and void, and would form no basis for the decisions. While many courts, holding to the doctrine contended for by plaintiff in error, have based their argument to some extent upon these constitutional provisions, we know of none holding the statutes authorizing a second trial upon the whole indictment void. Again, should we adopt the reasoning of the court in People v. Gilmore, supra, in holding that the statute meant only that the parties should be in the same position with reference to the indicted issues in the case, then the force of the statutes, as a basis for the decisions referred to, is swept away, and the courts of those States may, in effect, be ranked with those so holding, without the aid of a statute. With that view of the law, it might well be held, as the case last referred to, that the statute gave no authority for the decision. So far as the provision of the Constitution of the United States may be invoked, we take it as pretty well settled now that that provision governs the court existing by virtue of the laws of the United States, and has no application to the State courts. U. S. v. Keen, 1 McLean, 438; Barron v. Baltimore, 7 Pet. 243; Twitchell v. Com., 7 Wall. 321; State v. Wells, 46 Iowa, 662; Fox v. Ohio, 5 How. (46 U. S.) 410. We hold therefore that the plaintiff in error was properly put on trial for murder in the first degree, the granting of a new trial having the effect of setting aside all the results of the former trial. [Omitting other questions.] We find no error in this record. The judgment of the District Court is therefore affirmed. PENNSYLVANIA SUPREME COURT ABSTRACT. MASTER AND SERVANT-FELLOW SERVANTS-RAILROAD- NEGLIGENCE MACHINERY.- A master is bound to keep and maintain the machinery used by his servants in such condition that it is reasonably and adequately safe for their use. This principle may be applied in an action against a railroad company for killing of an engineer and fireman upon its road, caused by the explosion of a boiler. In an action against a railroad company to recover damages for the death of an engineer and fireman upon its road, caused by the explosion of the boiler of a locomotive which had lately come from the repair shops of the company and been sufficiently repaired, the company is not exempt from liability on the allegation that the workman in the machine shop who did the work was a fellow-servant of the deceased, although it appears that they were under the same general superintendent. As the latter stood in the place of the defendant company in the department over which he was placed, he is not to be regarded as an employee, but as a principal. Says Dr. Wharton in his work on negligence, section 232: "A master is bound, when employing a servant, to provide for the servant a safe working place and machinery. It may be that the persons by whom buildings and machinery are constructed are servants of the common master, but this does not relieve him from his obligation to make buildings and machinery adequate for working use. Were it otherwise the duty before us, one of the most important of those owed by capital to labor, could be evaded by capitalists employing their own servants in the construction of buildings and machinery. In point of fact, this is the case with most great industrial agencies, but in no case has this been held to relieve the master from the duty of furnishing to his employees materials, machinery and structures adequately safe for their work." The learned author, in support of what he thus propounds, cites, among others, the case of Ford v. Fitchburg R. Co., 110 Mass. 240, a case very much like the one in hand, and in which the duties of the master to his servants are well and ably stated by Mr. Justice Colt. It is there, as in many other cases, held that the legal rule which exempts the master from responsibility for accidents resulting to those in his employ, or from those occurring through the neglect of co-laborers, does not excuse him from the exercise of reasonable care in supplying and maintaining suitable implements for the performance of the work required, nor are those agents who are charged with the business of supplying the necessary machinery to be regarded as fellow servants, but rather as charged with the duty which the master owes to the servant, and the neglect of such agent is to be re- such skill as will qualify them to give an opinion as experts in matters pertaining to that specialty. They may also possess such special knowledge of a particular person as will qualify them, although not properly experts, to express an opinion as to that person's mental unsoundness; such opinion however must be based upon facts testified to. Witnesses not shown to be experts, and not having testified to facts tending to show mental unsoundness, are not competent to express an opinion in regard thereto. The facts which they have testified to need not however be excluded. The question of the qualification of witnesses as above is in all cases a question of law for the court, but it is for the jury to say whether any, and if any, how much weight STATUTE OF LIMITATIONS-JUDGMENT.-A., holding is to be given to such testimony. Del.& Chesa.Steamboat a judgment against another, bearing date August 28, Co. v. Starrs, 19 P. F. S. 36; Minnequa Spg. Impt. Co. 1873, assigned to B. by an absolute assignment noted v. Coon, 10 Week. Notes, 502. The notes of testimony on the record, B. giving him a writing stating that he of an expert taken at a prior trial of the same cause held it as collateral security for a certain debt, and upon a hypothetical state of facts, where the hypotheagreeing to re-assign it to A. when said sum should be paid. The money was afterward paid. Subsequently tablished, should be admitted upon a subsequent trial, sis is fairly consistent with the facts sought to be eson the day before the expiration of the lien of the although additional evidence is then before the jury judgment A. informed B. that the judgment had upon which there can be no cross-examination, for if pretty nearly run out, and he wanted it transferred, the facts assumed in the question are not established, as it belonged to him. To this B. replied, "It belongs the answer can have no weight with the jury. The to you," adding that it was too late to go to the burden of proof of insanity is upon the party alleging county town that afternoon. He then went into the it, and may be supported by proof of a general mental house and gave A. the receipt, saying, "I will be over unsoundness during a prolonged period, or of a parto N. [the county town] about eight o'clock to-morticular unsoundness at a precise period; if the proof row morning." On the following day the parties met shows a general mental unsoundness, during a proat N., and B. refused to re-assign the judgment. Upon longed period, the burden of proof is shifted upon the suit being brought by A. against B., more than six other party to show that any act in such period was years after the payment ot the debt, to recover damages for the breach of the contract to make a re-assign-performed during a lucid interval. First Nat. Bank ment, held, that plaintiff having knowledge of the [Decided Oct. 6, 1884.] v. Wirebach's Adm'r. Opinion by Clark, J. breach of the contract to re-assign at the stipulated time, the statute of limitations began to run from the date of the breach, and that the facts in evidence disclosed no such new promise as would avoid the running of the statute. The statute of limitations is regarded as a wise and beneficial law, and therefore whenever it is sought to be removed by proof of a new promise, such promise ought to be proved in a clear and explicit manner. It is not necessary that the promise should be express; it may be raised by implication from the acknowledgment of the party. If the expressions be vague, equivocal and indeterminate, leading to no certain conclusion, but at best to probable inferences, which may affect different minds in different ways, they ought not to go to the jury as evidence of a new promise. 2 Greenl. Ev., § 440. Yaw v. Kerr, 47 Penn. St. 333, and Patton's Ex'r v. Hassinger, 69 id. 311, cited by the plaintiff, fail to show that a promise should be inferred from such facts as exist in this case. The former was an action to recover the amount of a note, and there was proof of a distinct acknowledgment of the debt and a promise to pay it, made to the plaintiff's son, who called on the defendant in relation to the note. In the latter case it was said: "That if the evidence prove a recognition of a debt, or of the instrument or circumstances of indebtedness accompanied by a promise to pay, or such an acknowledgment as is consistent with a promise to pay when the statute has not run, either will prevent the bar of the statute in an appropriate case." Also after referring to the testimony showing an express promise, it was remarked that there was 66 proof that the parties were face to face when the new promise was made." PRACTICE - SET-OFF PARTNERSHIP -LIABILITY OF DECEASED PARTNER'S ESTATE FOR FIRM DEBTS. -Section 4 of the act of April 11, 1848, provides for the bringing of a suit against the executor or administrator of a deceased copartner for a debt of the firm and for a recovery, without averring in the record or proving on the trial the insolvency of the surviving partner. For the purpose of action against the representative, the debt is treated as if it was the individual debt of the decedent. Brewster's Adm'x v. Sterrett, 8 Casey, 115. The estate of the decedent becomes liable for the whole debt of the firm of which he was a member. Moores' Appeal, 10 id. 411. In the class of cases to which this act applies, its purpose is to make the indebtedness several, which was joint before. Miller v. Reed, 3 id. 244. Being several, a debt against the estate of the decedent may be treated as such, either to maintain an action therefor or for the purpose of set-off. Blair v. Wood. Opinion by Mercur, C. J. [Decided Jan. 26, 1885.] VERMONT SUPREME COURT ABSTRACT.* MASTER AND SERVANT-NEGLIGENCE OF INDEPENDENT CONTRACTOR.--The plaintiff's horse was frightened at a steam shovel, and ran, throwing the plaintiff out of his carriage, who thereby received the injury complained of. The shovel was located on the defendant's land, used to obtain gravel to ballast its road-bed, near the highway in which the plaintiff was travelling. The defendant's evidence tended to show that the shovel was operated and wholy controlled by one M., an independent contractor and his servants, although its use was contemplated when the contract was made; and the question being whether the de*To appear in 57 Vermont Reports. fendant or M. was liable, the court charged in effect, that the defendant's liability was co-extensive with that of M., if it was part of the agreement that the shovel should be used in doing the work. Held error; that the work being lawful, and the shovel not a nuisance, until it became such by negligent use, the defendant was not liable, unless the relation of master and servant existed between it and those operating the shovel; unless it not only prescribed the end, but directed the means and methods; and that the inquiry was, whether the defendant or M. was the principal or master in operating the shovel; if M., and it became a nuisance through his negligence, he alone was liable, although it was understood by the defendant, in making the contract, that the shovel was to be used. This rule of law is forcibly illustrated by the case of Rourke v. White Moss Colliery Co., 2 C. P. Div. 205; S. C., 20 Moak Eng. Rep. 469. There the defendants, after partly sinking a shaft into their colliery, agreed with W. to finish the work for them on terms, among others, that defendants should provide engine power and engineers to work the engine. The engine that had been used by the defendants in excavating the shaft was thereupon handed over to W. The same engineer remained in charge of it, and continued in the pay of the defendants as before, but was subject to the orders of W. It was held that the engineer was the servant of W., and not of the defendants; and that W. alone was answerable for his negligence in operating the engine. Murray v. Currie, L. R., 6 C. P. 24, is another recent English case in point. The defendant, a ship-owner, employed a stevedore to unload his vessel. The stevedore employed his own laborers, among whom was Davis, one of defendant's crew, whom the stevedore paid, and over whom he had entire control. The plaintiff was injured by the negligence of Davis; and it was held that the defendant was not liable. See also Wood Mas. & Serv., § 313; Callahan v. R. Co., 23 Iowa, 562. The conflict in the cases upon this subject doubtless arises from inattention to the character of the work to be done. If the work to be done is committed to a contractor to be done in his own way, and is one from which, if properly done, no injurious consequences to third persons can arise, then the contractor is liable for the negligent performance of the work. If however the work is one that will result in injury to others unless preventive measures be adopted, the employer cannot relieve himself from liability by employing a contractor to do what it was his duty to do to prevent such injurious consequences. In the latter case the duty to so conduct one's own business as not to injure another continuously remains with the employer. Bower v. Peate, 1 Q. B. Div. 321; S. C., 16 Moak Eng. Rep. 374. In this case, if the shovel became a nuisance merely because it was negligently operated, and such operation was controlled by Munson, he is the author of the nuisance, and answerable for the consequences; and the understanding between the parties that the shovel should be used in the work does not change the liability to the defendant. Bailey v. Troy & Boston R. Co. Opinion by Powers, J. LANDLORD AND TENANT-FORFEITURE-DEMAND OF RENT.-The failure of a tenant under a perpetual lease from the selectmen of a town to pay rent according to the terms of the lease, or a neglect by the tenant to pay when the rent was called for, does not work a forfeiture, no legal demand having been made for the rent on the very day it became due and at the very place where payable. It is well settled at common law, "to entitle a landlord to re-entry for breach of covenant to pay rent, he must make demand of the actual rent due, on the very day it becomes due, at a convenient time before sunset, at the very place where payable, or at the most notorious place on the premises demised." 3 Kent Com. (11th ed.) 611; Taylor L. & T., §§ 493, 494; Van Rensselaer v. Jewett, 2 Comst. 141; Maidstone v. Stevens, 7 Vt. 487. The provisions in leases in regard to rent are regarded as additional securities to the landlord for the payment of his rent; when strictly followed so as to work a forfeiture, they were always relieved against by courts of equity. 2 Story Eq., §§ 1315 to 1325. But it has long been well settled both in England and in this country, that where the landlord brings ejectment, or writ of entry for non-payment of rent, a court of law, without the aid of any statute, will allow the tenant to bring his rent into court, and thus relieve himself from forfeiture. That right in this State is secured by statute. R. L., § 1259. Willard v. Benton. Opinion by Redfield, J. CORPORATION-ASSESSMENTS OF STOCK FOR LOSSES— PAYING CREDITORS.-The charter of the St. Albans Trust Company provided: "If at any time the capital stock paid into said corporation shall be impaired by losses or otherwise, the directors shall forthwith repair the same by assessment." The trust company being insolvent and under the control of a receiver, held, that a personal liability is not imposed upon the stockholders, and that they cannot be assessed for the purpose of paying the creditors; and that the parpose of said provision was rather to prevent the continuance of business with impaired capital. Dewey v. St. Albans Trust Co. Opinion by Rowell, J. CHATTEL MORTGAGE-NEW YORK STATUTE-LAW OF PLACE-MORTGAGOR'S INTEREST AFTER BREACH.— In New York, as here, a chattel mortgage duly executed and registered vests the title in the mortgagee subject to the mortgagor's right of redemption at the time fixed in the condition. Failing to redeem, the mortgagor's right is lost at law, and the mortgagee gets an absolute title. If the creditors of the mortgagor attach the chattel mortgaged, or subsequent mortgages of it be executed, such creditors and mortgagees take only the interest of the mortgagor in the chattel and hold it exposed to forfeiture for breach of condition by the mortgagor. After breach of condition the mortgagor has no attachable interest in the chattel. Champlin v. Johnson, 39 Barb. 608; Judson v. Easton, 58 N. Y. 664. This court held in Jones v. Taylor, 30 Vt. 42, that a chattel mortgage executed in New York and valid there, without a change of possession, would protect the property here against attachment, though found here in the possession of the mortgagor; and the court overruled the earlier case of Skiff v. Solace, 23 Vt. 279, holding a contrary doctrine. The same doctrine was reaffirmed in Cobb v. Buswell, 37 Vt. 337, where the property mortgaged was brought to Vermont from New Hampshire by the consent of the mortgagee. In some States a different rule prevails, but the law in this State is firmly established by the cases cited. The doctrine of these cases is that the mode of alienation of property is governed by the law of the place where the owner resides and the property is situated; and the rule requiring a change of possession is a rule of local policy, not reaching to a title valid by the law under which it is vested. On this ground a subsequent mortgage in this State within the year following the execution of the plaintiff's mortgage would give the mortgagee no better title than an attaching creditor could get. Norris v. Soules. Opinion by Powers, J. pendent and outside of an established business, amounting in all, in the course of a year, to about $3,500, do not constitute a man a "merchant or trader" within the meaning of the insolvent law. One who makes it his business, or a part of his business, to buy and sell goods, merchandise, or commodities is undoubtedly a trader within the meaning of the statute. Groves v. Kilgore, 72 Me. 491; Sylvester v. Edgecomb, 76 id. 499. But we find no authorities that hold that speculating in stocks constitutes one a trader. The authorities cited by the counsel, and those which we have been able to find hold the other way. A trader is defined to be "one who makes it his business to buy merchandise or goods and chattels, and to sell the same for the purpose of making a profit." Bouv. Law Dic. 594. Shares in stocks are neither merchandise, goods, or chattels. In In re Cleland, L. R., 2 Ch. 466, it was held that buying and selling stocks did not constitute one a dealer in "goods or commodities" within the meaning of the English Bankrupt Act, so as to subject him to its provisions. In In re Marston, 5 Ben. 313, it was held that speculating in stocks did not render the bankrupt a "merchant or tradesman" within the meaning of the United States Bankruptcy Act, which denied a discharge to the bankrupt, "if being a merchant or tradesman, he has not, subsequently to the passage of the act, kept proper books of account." Blatchford, J., in his opinion, says: "Although according to the lexicons, one who is engaged in the business of buying and selling for gain may be called a merchant, and also a tradesman, yet I do not think it would ever occur to any one to speak of a person carrying on the business which the bankrupt carried on in the way in which he carried it on, as a merchant or as a tradesman, nor do I think that those words, as used in the twenty-ninth section, embrace such a person.' "A clergyman, or a physician, or a lawyer might carry on the same business in the same way, in addition to his regular professional business, and no one would call him, in consequence, a merchant or a tradesman. If not, the bankrupt cannot be so called." It appeared that speculating in stocks was the bankrupt's only business. The same rule was fully affirmed in In re Woodward, 8 Ben. 563. In this case the sole business of the bankrupt was that of a speculator in stocks and a stock broker. He was a member of the board of brokers, kept an office, and bought and sold to a very large amount; his liabilities, when he was declared a bankrupt, reaching nearly $3,000 000. In his opinion, Benedict, J., says: "Upon these facts the court has been urged to hold that the bankrupt was a merchant or tradesman, and to refuse the discharge because of his failure to keep proper books of account. But my opinion is, that the bankrupt cannot be held to have been a merchant or tradesman within the meaning of the bankrupt law. The words "merchant and tradesman" involve the idea of dealing with merchandise in some form or other. In their ordinary and natural signification they do not include one who makes profits by buying and selling of shares on speculation, whether for himself or for others. Such person, in ordinary parlance, cannot be said to be engaged in trade. No case has been cited which furnishes authority for extending the meaning of these words, so as to include the occupation of this bankrupt. The adjudged cases look the other way. The case of Marston, 5 Ben. 313, is quite in point. It is supposed that the present case differs from the case of Marston, in that the dealings of this bankrupt were not casual, that he had an office, made contracts in his own name as well as for others, and acquired by his dealings a credit that enabled him to make extensive purchases of stocks. But these circumstances, assuming them to be proved, do not bring him within the statute, for they do not disclose the characteristic features of the occupation of a merchant or tradesman, namely, a trading in goods, wares or merchandise." Matter of Conant. Opinion by Libbey, J. [Decided April 13, 1885.] KANSAS SUPREME COURT ABSTRACT.* EXECUTION-STOCK IN TRADE-EXEMPTION-WAIVER -SELECTION.-A merchant tailor who is the head of a family and a resident of the State, is entitled to an exemption of such portion of his stock in trade as he may select, up to the statutory limit of value, and this right is absolute and does not depend upon any claim or selection to be made by him. The general rule and the weight of authority we think is that the debtor may claim his exemption at any time before the day of sale. Jordan v. Autrey, 10 Ala. 226; Daniels v. Hamilton, 52 id. 108; Fulkerson v. Emmerson, 74 Mo. 607; Thomp. Exemp., § 839, and cases there cited. In Alabama it has been held that where the statute is silent, the defendant in the execution is entitled to the privilege of selection if he claims it. Noland v. Wickham, 9 Ala. 172; Thomp. Exemp., § 843. It is the duty of the officer, we think, when he is about to levy upon property, some of which is exempt, to notify the debtor so that he may make a selection; and where, by reason of his absence or other circumstances, he is precluded from selecting, it would then become the duty of the officer to set apart the exemp tion to which the debtor was entitled. See also Wicker v. Comstock, 52 Wis. 319. The mere failure of the debtor to claim his exemption until the morning preceding the sale made by an officer upon an order of attachment does not operate as a waiver of such right. Where the stock in trade of a debtor, some of which is exempt, is mortgaged, he cannot be compelled to accept as his exemption that which is subject to the mortgage, at its full value, but he is entitled to an exemption of his own selection, free from all liability for debt, up to the full value of $400. Bayne v. Patterson, 40 Mich. 658; Tryon v. Mansir, 2 Allen, 219; Weis v. Levy, 69 Ala. 211; Thomp. Exemp., § 741. It is lastly claimed by the plaintiffs in error that the assignment for the benefit of his creditors, made and filed by the defendant on the 16th day of February, 1883, wherein he made no exception or reservation of his stock in trade, estopped him from claiming as exempt any por tion of the stock seized. A sufficient answer to this claim is that no action was taken or had under the assignment by or on behalf of the plaintiffs or any one else. The plaintiffs did not claim the property in question under the assignment, but rather upon a seizure made a considerable time before the assignment was filed. It is not pretended that the action of the defendant in making the assignment in any way misled or influenced the action of the plaintiffs, and there can be no estoppel unless the defendant's action operated to the prejudice of the plaintiffs. Bramble v. Twilley, 41 Md. 440; Thomp. Exemp., §§ 822, 838. Rice v. Nolan. Opinion by Johnston, J. TRUST-FOLLOWING TRUST FUNDS.-An administrator cannot purchase real estate in his own name, with money belonging to the estate, and expend other moneys of the estate in making improvements thereon, and then place the trust fund used by him as administrator beyond the reach of the heirs, by subsequently *To appear in 33 Kansas Reports. qualifying as guardian of the minor heirs of the intestate, and as such guardian receipt to himself as administrator for the moneys of the estate previously used and expended by him. The heirs of the estate have an election either to hold the administrator and guardian personally responsible for the money of the estate invested in his own name, or to follow it into the land and have that adjudged trust property. If a person having a fiduciary character purchase property with the fiduciary funds in his hands and take the title in his own name, a trust in the property will result in the cestui que trust or other person entitled to the beneficial interest in the fund with which the property was paid for; as if a trustee purchase with the trust fund and take the title in his own name, the trust will result to the cestui que trust; if a guardian purchase with the money of his ward, a trust will result to the ward, and if an executor or administrator purchase property in his own name with money belonging to the estate, a trust in the property will result to the heirs, legatees or other persons entitled to the beneficial interest in the es. tate." * * * "In all these cases the transaction is looked upon as a purchase paid for the cestui que trust, as the beneficial interest in the money belonged to him; and the identity of the money does not consist in the specific pieces of money or bills, but in the gen. eral character of the fund out of which the payment is made, aud the fund may be followed so long as its general character can be identified." *** "If however a trustee purchase an estate with trust funds, and add funds of his own to the purchase-money, a trust will result to the cestui que trust, and the burden will be upon the trustee to show the amount of his own funds in the purchase; otherwise the cestui que trust will take the whole." 1 Perry Trusts (2d ed.), §§ 127, 128. "Where the trust fund constitutes a part only of the purchase-money of the estate, the court usually gives a lien on the land only for the amount of the trust fund invested and interest; but where the entire land is the fruit of the trust fund, the cestui que trust has an election to take the land, or the trust fund and interest." 2 Perry Trusts (2d ed.), § 842; Beck v. Uhrich, 16 Penn. St. 499; White v. Drew, 42 Mo. 561; Seaman v. Cook, 14 Ill. 501; Cook v. Tullis, 18 Wall. 332; National Bank v. Insurance Co., 104 id. 54; Morrill v. Raymond, 28 Kan. 415; Peak v. Ellicott, 30 id. 156. Executors or administrators cannot be permitted under any circumstances to derive a personal benefit from the manner in which they transact the business or manage the assets of the estate. 1 Johns. Ch. 620; 4 id. 303; 1 Fonblanque Eq., B. 1, ch. 2, § 12, K; 1 Story Eq. Jur., § 318. An administrator cannot purchase real estate in his own name with money belonging to the estate, and expend other moneys of the estate in making improvements thereon, and then place the trust fund used by him as administrator beyond the reach of the heirs, by subsequently qualifying as guardian of the minor heirs of the estate, and as such guardian receipt to himself as administrator for the moneys of the estate previously used and expended by him. The heirs of the estate have an election either to hold the administrator and guardian personally responsible for the money of the estate invested in his own name, or to follow it into the land and have that adjudged trust property. They cannot however do both. In this case the heir seeks to follow the money into the land, and does not rely upon the executor's bond executed by Waybright, or upon the bond given by him as guardian. Merket v. Smith. Opinion by Horton, C. J. SHERIFF'S DEED, EXECUTED BY DEPUTY.-Where a sheriff's deed is executed by a deputy, to be valid, it must be executed in the name of the sheriff. Lessee of Anderson v. Brown, 9 Ohio, 151; Lewes v. Thompson, 3 Cal. 266; Joyce v. Joyce, 5 id. 449; Rowley v. Howard, 23 id. 401; Simonds v. Catlin, 2 Caines (N. Y.), 61; Paddock v. Cameron, 8 Cow. 212; Jordan v. Terry, 33 Tex. 680; Arnold v. Scott, 39 id. 378. Robinson v. Hall. Opinion by Horton, C. J. CHATTEL MORTGAGE-SECURING MORE THAN DUEFRAUDULENT INTENT.-Where a note and mortgage are executed for an amount in excess of the actual indebtedness existing from the mortgagor to the mortgagee, to take up an old note and mortgage given in good faith to secure an actual indebtedness, with the understanding that upon the execution of the new note all the credits that were upon the old note should be placed upon the new note, and such understanding was carried out by the mortgagee, and in the over-statement of the amount secured there was no intent of either party to hinder, delay or defraud the mortgagor's creditors, such mortgage is not fraudulent in toto, because upon its face it secures an amount of indebtedness in excess of that actually existing from the mortgagor to the mortgagee. Hughes v. Shull. Opinion by Horton, WILL-EXECUTION-WITNESS-PRESENCE OF TESTATOR.-In Rhode Island the witnesses to a will must subscribe their names in the presence of the testator. Acknowledgment by a witness, in the presence of the testator, of the witness' signature affixed in the testator's absence, is a nullity. The only case in which acknowledgment of subscription has been held to be equivalent to subscription itself in the presence of the testator is Sturdivant v. Birchett, 10 Gratt. 67, which was decided by the Court of Appeals of Virginia by a divided court. On the other hand, the cases which more or less strongly support the view which we have expressed are numerous. Most of them are cited and reviewed by Judge Gray, in an elaborate opinion in Chase v. Kittredge, 11 Allen, 49. In that case one of the witnesses subscribed the will in the absence of the testator, and before it was signed by him, and after it was signed acknowledged his signature in the presence of the testator and the other witnesses. The court decided that the execution was invalid, both because the witness subscribed the will before it was signed by the testator, and because he subscribed it in the absence of the testator, the subsequent acknowledgment in his presence being unavailing. See also Hindmarsh v. Charlton, 8 H. L. 160; Downie's Will, 42 Wis. 66; Compton v. Mitton, 12 N. J. L. 70; Mickle v. Matlack, 17 id. 86; Pope's Will, Roberts' Vt. Dig. 748, 17. We have treated this case as if the acknowledgment was made in the presence of Otis J. Ballou by both witnesses, or by one of them, the other standing by and assenting. The case has been argued as if such was the acknowledgment. The agreed statement however does not show that more than one of the witnesses took part in the acknowledgment. Such an acknowledgment by one of the witnesses only, the other being absent, is not, so far as we know, supported by any authority, and it would be without question ineffectual. Pawtucket v. Ballou. Opinion by Durfee, C. J. [Decided June 20, 1885.] SURETY-DUTY OF CREDITOR AS TO COLLATERAL.We think it is well settled that where the relation of principal and surety exists between two debtors, it is the duty of the creditor, if he knows of the relation and has taken collateral security from the principal * To appear in 15 Rhode Island Reports. |