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Hilton v. Dickinson, 108 id. 165; Bradstreet Co. v. 'Higgins, 112 id. 227; First Nat. Bank of Omaha v. Redick, 110 id. 224. It is also settled that neither codefendants nor co-plaintiffs can unite their separate and distinct interests for the purpose of making up the amount necessary to give this court jurisdiction upon writ of error or appeal. Rich v. Lambert, ubi supra; Seaver v. Bigelows, 5 Wall. 208; Paving Co. v. Mulford, 100 U. S. 147; Russell v. Stansell, 105 id. 303; Ex parte Baltimore & O. R. Co., 106 id. 5; Farmers' Loan & Trust Co. v. Waterman, id. 265; Adams v. Crittenden, id. 577; Hawley v. Fairbanks, 108 id. 543; New Jersey Zinc Co. v. Trotter, id. 564; Tupper v. Wise, 110 id. 398; Fourth Nat. Bank v. Stout, 113 id. 684. The cases cited are conclusive of the question of jurisdiction. The authorities on which the plaintiffs in error rely (Shields v. Thomas, 17 How. 3; Market Co. v. Hoffman, 101 U. S. 112; The Connemara, 103 id. 754; The Mamie, 105 id. 773) were discussed by the chief justice in Ex parte Baltimore & O. R. Co., ubi supra, and were shown to have no application to cases like the present. The case of Davies v. Corbin, 112 U. S. 36, also cited for the plaintiffs in error, clearly belongs to the same class. The motions to dismiss for want of jurisdiction are therefore sustained. (2) Under the Civil Code of Louisiana a widow, even where she has accepted the succession of her husband without benefit of inventory, is not liable in solido with the surviving partners for the payment of a note made by the firm of which her husband was a member; and payments made on the note by the surviving partners cannot be given in evidence to show interruption of prescription running in her favor. Henderson v. Wadsworth. Opinion by Woods, J. [Decided Nov. 2, 1885.]

-SUIT PRO

APPEAL-DEATH OF ONE APPELLANT CEEDING IN BEHALF OF OTHERS.-On an appeal from a final decree for an injunction and damages in a suit for infringement of a patent by a partnership, when one of the partners has died the survivors may, after notice to his legal representatives to appear, and their failure to so appear, move that the action abate as to the deceased, and proceed at their suit as survivors. The cause of action is one that survives to the surviving appellants. Undoubtedly cases may arise in which the presence of the representatives of a deceased appellant will be required for the due prosecution of an appeal, notwithstanding the survivorship of others. If that should be so, the court can with propriety direct that the appeal be dismissed, unless it be properly

revived within a limited time. The House of Lords made such an order in Blake v. Bogle, a note of which is found in McQueen's Pr., H. L. 244. Here however there is no need of a revivor that substantial justice may be done. The decree below was against all the defendants jointly, upon a joint cause of action. It affected all alike, and the interest of the decedent is is no way separate or distinct from the others. If the representatives of a deceased appellant voluntarily come in and ask to be made parties, they may be admitted. Such a course was adopted by the House of Lords in Thorpe v. Mattingley, 1 Phil. 200. In the present case the representatives of the decedent, although notified, do not appear. It is proper therefore that the appeal should proceed under the statute at the suit of the survivors, and an entry to that effect may be made. Moses v. Wooster. Opinion by Waite, C. J.

[Decided Nov. 2, 1885.]

JURISDICTION-FEDERAL QUESTION.-These motions to dismiss are granted on the authority of Detroit City Ry. Co. v. Guthard, 114 U. S. 133, and the cases there cited. It appears distinctly on the face of the

opinion of the court below, which by the laws of Arkansas forms part of the record (Rev. Stat. Ark. 1884, § 1318) that the decision of the case was put, and properly put, on a ground which did not involve a consideration of the Federal question that may possibly have been presented by one of the several defenses set up in the answer of the city, to-wit, that the Constitution of 1874 prohibited the issue of the bonds in dispute. In fact, it is intimated in the opinion that if the case had rested on this defense alone, the judgment would have been the other way. Jack v. City of Helena. Opinion by Waite, C. J.

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VOID ADMINISTRATOR'S SALE CODE MISS. 1871, § 2173-TENANTS IN COMMON-EJECTMENT-OUSTERCODE MISS. 1880, §§ 2506, 2512.-The Mississippi Code of 1871, § 2173, by which any action to recover property because of the invalidity of an administrator's sale by order of a probate court must be brought within one year, "if such sale shall have been made in good faith, and the purchase-money paid," does not apply to an action brought by the heir to recover land bid off by a creditor at such a sale for the payment of his debt, and conveyed to him by the administrator, and not otherwise paid for than by giving the administrator a receipt for the amount of the bid. Under the Mississippi Code of 1880, §§ 2506, 2512 a tenant in common who has been ousted by his co-tenant may maintain ejectment against him, and recover rents and profits in the same action. Co. Litt. 199 b; Goodtitle v. Tombs, 3 Wils. 118; Corbin v. Cannon, 31 Miss. 570; Letchford v. Cary, 52 id. 791. And by section 2512 of that Code mesne profits, for which any defendant in ejectment is liable, may be sued for and recovered either in the action of ejectment or by a subsequent separate action. Clay v. Field. Opinion by Gray, J. [Decided Nov. 2, 1885.]

TRIAL-DIRECTING VERDICT-VARIANCE

REVIEW

OF EVIDENCE-RIGHT TO CLOSING ARGUMENT-JUDGMENT-REVERSAL-ERROR WITHOUT PREJUDICE.--The bill of exceptions in this case contained all the evidence and the charge to the jury. There was no exception to the charge. The court refused to direct a verdict for the plaintiff, it being asked for on the ground of a variance between the proof and the answer, and there was a verdict for the defendant. Held, that there was no such variance, and that the question of the existence of the defense set up was fairly put to the jury on conflicting evidence. This court cannot review the weight of the evidence, and can look into it only to see whether there was error in not directing a verdict for the plaintiff on the question of variance, or because there was no evidence to sustain the verdict. The question as to which party shall make the closing argument to the jury is one of practice, and is not the subject of a bill of exceptions or of a writ of error. No judgment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made. Deery v. Cray, 5 Wall. 795, 803; Gregg v. Moss, 14 id. 564, 569; Lucas v. Brooks, 18 id. 436, 454; Allis v. Insurance Co., 97 U. S. 144, 145; Cannon v. Pratt, 99 id. 619, 623; Mining Co. v. Taylor, 100 id. 37, 42; Hornbuckle v. Stafford, 111 id. 389, 394. Lancaster v. Collins. Opinion by Blatchford, J. [Decided Nov. 2, 1885.]

CONSTITUTIONAL LAW-DUE PROCESS OF LAWRIGHT TO HEARING-TAXATION OF RAILROAD PROPERTY. A State statute requiring the chief officer of a railroad company to make a return to the auditor of

public accounts in July of each year of the length of his road within the State, and providing for the appointment of a board of equalization, which shall meet annually in a designated month at a designated place and receive the returns from the auditor, and ascertain the value of the property, and equalize and adjust the assessment thereon, and further providing for the collection of the taxes so assessed by suit against the officers for the penalties incurred by a failure to pay the taxes levied, or for the recovery of the taxes themselves by action in the courts is not unconstitutional. Citing Davidson v. New Orleans, 96 U. S. 97, 107; McMillen v. Anderson, 95 id. 37, 42; State Railroad Tax Cas. 92 id. 575, 610; Neal v. Delaware, 103 id. 370; Cooper v. Wandsworth Board of Works, 14 C. B. (N. S.) 180, 194; Hagar v. Reclamation Dist., 111 U. S. 701; Missouri v. Lewis, 101 id. 22, 30. Cincinnati, etc., R. Co. v. Commonwealth. Opinion by Matthews, J. [Decided Nov. 16, 1885.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

INSURANCE-SUICIDE-" FELONIOUS OR OTHERWISE." -Where a life insurance policy provides that it shall be void in case the assured die by "self-destruction, felonious or otherwise," the proviso includes all cases of voluntary self-destruction, sane or insane. Riley v. Hartford Life and Annuity Ins. Co. Cir. Ct. E. D. Mo., Oct. 14, 1885. Opinion by Treat, J.

COMMON CARRIERS-RAILROADS-LIABILITY AS TO CARS RECEIVED FOR TRANSPORTATION.-Where a railroad company receives loaded cars from another road for transportation, it is liable as a common carrier in case they are destroyed en route by fire. If destroyed by fire after delivery to the consignee, or after they have been tendered to him, the company is not liable if not in fault. In the latter case its duties are only those of a warehouseman. Semble, that no implied contract to return cars arises where they are received loaded for transportation and delivery to a consignee. Missouri Pac. Ry. Co. v. Chicago & A. Ry. Co. Cir. Ct. E. D. Mo., Nov. 5, 1885. Opinion by Treat, J. REMOVAL OF CAUSE-CITIZENSHIP EVIDENCE.From 1845 until 1883 plaintiff's home was in Brooklyn, N. Y., with the exception of about five years, when he resided at Bay Side, L. I. In the spring of 1883 he purchased a farm at Greenwich, Conn., for a summer home. From 1883 until November, 1884, he resided in New York city, spending Sundays and the summer with his family at Greenwich. From November, 1884, till May, 1885, he occupied apartments with his family in New York city. In May he returned to Greenwich for the summer, expecting to occupy his city apartments in the fall. He never voted except in New York, and he claimed that he always had been, and intended to be in the future, a citizen of New York. In April, 1885, he brought suit in a State court in New York against defendants, citizens of New York, who removed the case to the United States court on the ground that plaintiff was a citizen of Connecticut. Held, that the plaintiff was not a citizen of Connecticut, but of New York, and that the case should be remanded to the State court. It may be conceded that the question is not free from doubt, but to doubt in such circumstances is to remand the case to a tribunal which unquestionably has jurisdiction. Levy v. Laclede Bank, 18 Fed. Rep. 193; Gribble v. Pioneer Press Co., 15 id. 689; Wolff v. Archibald, 14 id. 369. Should the court re

tain jurisdiction, this question, under the provisions of the fifth section of the act of March 3, 1875, may *Appearing in 25 Federal Reporter.

again assert itself in a manner which will prove disastrous to the interests of both parties. Sanger v. Seymour. Cir. Ct. S. D. N. Y., Nov. 4, 1885. Opinion by Coxe, J.

NATIONAL BANKS INSOLVENCY ASSESSMENT OF SHARES OF STOCK IN HANDS OF EXECUTOR AND RESIDUARY LEGATEE.-H. B. at the time of his death owned 430 shares of capital stock in a National bank, which he bequeathed to S. B. as residuary legatee. S. B. died, having bequeathed the shares to M. B. S. The executor, before the failure of the bank, on representation that there would be left for the residuary legatee, after paying debts and legacies, a large amount of real and personal estate, was ordered by the Probate Court to pay the legacies and turn over the balance to the residuary legatee. He transferred 400 of the shares to the residuary legatee. Afterward he transferred ten shares to another person without consideration, and in trust, leaving twenty shares standing in his own name as executor on the books of the bank when it failed. There were still claims against the estate which were in dispute, and the stock was not specifically mentioned in the will or the decree ordering it to be paid to the residuary legatee. Held, that the 400 shares turned over to the legatee were not liable to the assessment made by the comptroller of the currency upon the capital stock of the bank which were owned and stood in the name of H. B. at the time of his decease, but that the thirty shares in the name of the trustee and of the executor were liable to such assessment. Witters v. Sowles. Cir. Ct. D. Vt., Oct. 19, 1885. Opinion by Wheeler, J.

GIFT-CONSTRUCTIVE FRAUD-INTOXICATION-CONFIDENTIAL RELATION.-T. was an intimate friend of R.'s family, and was R.'s guardian. R. had utmost confidence in and friendship for him. When R. became of age, T. settled his accounts as guardian, but R. employed the firm of which T. was a member as his real estate agents. T. thus had the active management of most of his property. R. made two wills in favor of T.'s children. He afterward married the complainant, whom he had long known as a prostitute. After the marriage, upon T.'s suggestion whether R. desired to carry out his former purpose, R. made a gift of property, amounting to $40,000, about half of his estate, to T., as trustee of his children, reserving the income for life. Mrs. R. filed her bill after R.'s death to set aside the gift, on account of undue influence exercised by T. over R., and of R.'s mental weakness, caused by his dissipation. The gift was upheld and the bill dismissed. (2) Where there is great weakness of mind in a person executing a voluntary conveyance, arising from age, sickness, intoxication, or any other cause, though not amounting to absolute disqualification, the transaction will be very closely scrutinized, and acourt of equity will, upon a proper and seasonable application, set the conveyance aside. But where the evidence relied on to show such mental weakness arising from intoxication shows that the grautor had periods of sobriety in which he was able to attend to business, and fails to show that he was intoxicated at the time the conveyance was made, it is not sufficient to avoid the transaction, although it appears that the grantor was a hard drinker, and that habits of intoxication had affected his health and frequently rendered him unfit for business. (3) A gift by a principal to an agent is valid, unless the party who seeks to set it aside can show that some advantage was taken by the agent of the relation in which he stood to the donor. If it appears that the conduct of the agent is fair, honest and bona

fide, it is immaterial that the deed of gift may have

been drawn up by his solicitor without the intervention of a third party. Ralston v. Turpin. Cir. Ct. S. D. Ga., W. D., 1885. Opinion by Speer, J.

MICHIGAN SUPREME COURT ABSTRACT.

ATTACHMENT-SUBSEQUENT LEVY BY THIRD PARTY DISSOLUTION OF ATTACHMENT.-In the extraordinary proceeding by attachment the levy of a third party upon the attached property cannot in any way alter or vary the rights or remedies of either the plaintiff or defendant therein. In Chandler v. Nash, 5 Mich. 409, the defendant, before the writ of attachment was issued, had voluntarily assigned his property for the benefit of his creditors, and delivered it to his assignee. Consequently the court very properly held that could he not ask its restoration to himself. In Price v. Reed, 20 Mich. 73, the defendant had given a chattel mortgage upon the property, and before he applied for a dissolution of the attachment had voluntarily turned it over to the mortgagee, who was entitled to the possession. Yet in this case Justice Christiancy dissented, and held that notwithstanding this, the defendant was entitled to a dissolution, and an order for the return of the property as against the plaintiff, who showed no rights whatever in the property. After these decisions by what seems to us a misapplication of the rule established by them, Mr. Justice Marston, in Johnson v. De Witt, 36 Mich. 95, held that third parties, by the operation of law, might become entitled to the possession of the attached property, while the legal title was yet in the defendant, and thereby defeat his right to have the attachment dissolved, operating preceisely as if he had by his own voluntary act parted with his title or possession before he applied for a dissolution; and cited in favor of this doctrine also the case of Osborne v. Robbins, 10 Mich. 278, and Macumber v. Beam, 22 id. 396. Both these cases were decided upon a point raised as to the allegation of ownership in the petition, and have not the slightest tendency, in our opinion, toward supporting the ruling in Johnson v. De Witt. There is also to be found in the opinion of Chief Justice Marston in Zook v. Blough, 42 Mich. 487, a single sentence supporting his former opinion in Johnson v. De Witt. But the point was not involved in that case, and the remark must be considered as a mere dictum. This case of Johnson v. De Witt was one in which it appeared that before the application was made to dissolve the attachment the property was out of defendant's hands and in the possession of a United States marshal, and held by him under three execution levies against the goods and chattels of the defendant. The rest of the court appear to have concurred in this opinion; but later, so apparent was the injustice of this decision, that when it came to be applied to a case of succesisve attachment levies in Sheldon v. Stewart, 43 Mich. 574, the court unanimously held that the fact that the attached property was held under levy of a large number of other attachments than the one defendant was seeking to have dissolved, was no bar whatever to his right to have the attachment in question dissolved, or to have an order made restoring the property to him; and that the presence of these levies could not compel him to submit in silence to an ex parte allegation of fraud or misconduct. In that case Mr. Justice Graveswell said: "The contrary doctrine would directly lead to injustice. It would admit a ready method for defeating the benign purpose intended by the Legislature when they devised this remedy. * *Nothing would be easier, in a vast majority of cases, than a duplication of levies to preclude any attempt against the seizure. * * *The idea is repugnant to the spirit and design of the statute." He cites State Bank of Fenton v. Whittle, 41 Mich. 365, and Schall v. Bly, 43 id. 401, in support of his views, and which, we think, directly sustain him. By an examination of the record in the case of State Bank of Fenton v. Whittle, above re

*

ferred to, we find in that case, as in this, the property attached, or a portion of it, was personal, and the execution levy was on such personal property. Mr. Justice Cooley, in disposing of that case, says: "One error assigned is that the commissioner ordered a return of the property to the defendant, notwithstanding it was shown to be held by the sheriff under an execution. The evidence that it was so held was insufficient, but the order could do no harm to the execution creditor, as the officer's lien under his writ, and his right to custody by virtue of it, could not be disturbed by the commissioner's order." A distinction is sought to be made in the argument here between an attachment and an execution levy; but we can see none in the principle or effect. The decision in 36 Mich. 95, upon which plaintiffs rely, was grounded directly upon the idea that the defendant, having by the levy lost the right to the possession as against some third person, was debarred by the operation of law of the right to have a dissolution of an attachment laid upon his property by one who had no authority to do so. An attachment levy, while it exists, takes away the defendant's right of possession just as completely as the levy of an execution. Indeed its office and purpose is to seize and hold the property away from him until judgment can be obtained and execution issued and levied upon it. The dissolution of an unjust attachment, obtained by a false or mistaken statement and oath of the plaintiff, can do no harm to the valid lien of a third party, while its retention is an indefensible wrong, and a fraud upon the rights of the defendant. It is the right of the defendant to have it removed, and it is the duty of the court to aid him. He is "not bound to submit in silence to a levy which he considers based on an untrue statement against his honor and good faith, merely because other persons have subsequently levied upon the same property." 43 Mich. 402, and 5 N. W. Rep. 651. Drs. K. & K. v. U. S. Med., etc., Ass'n. Opinion by Morse, C. J. [Decided Nov. 19, 1885.]

CREDITORS' BILL-DEVISEE HOLDING PROPERTY IN TRUST IN PART FOR HIMSELF.-Property devised to a party who is insolvent, as executor in trust, (1) to pay the annuities created by the will out of the rents and profits; (2) to pay himself the remainder of the rents and profits, which are barely sufficient for his support; and (3) to preserve the principal for those entitled to the remainder estate at his death- cannot be reached by a bill in equity filed by a judgment creditor. In the first instance the testatrix provided for the support and maintenance of her mother in comfort so long as she should live, and it was the executor's duty to see that that was done; and he was to see to it "that she want for nothing so long as there may be any thing belonging to me left." She thus limits her bounty to her mother only by the extent of her property, provided the mother's necessities require it. What that necessity might be was then to her unknown, but she was not afraid to leave it to the discretion of her husband, whose kindness, prudence and affection she had known and tested for years, to ascertain and supply. This watchful care the decree of the court, under the views of complainants' counsel, should in the event of the husband's neglect to pay his insolvent debts, be turned to the cold indifference of a stranger who occupies his place in the interest of mercenary creditors residing in a foreign State. The humanity of the law will never allow such perversion of its teachings, or the perpetration of such injustice. The testatrix, after providing for her mother, and the payment of two small annuities of $25 each to two of her nieces, and making a few other minor bequests to her relatives, says: "As my dear husband, David R. Corey, is in poor health, and is more to me than all the world be

sides, I wish him to have the use, during his life-time, of the remainder of my property," etc. Then follows the injunction to keep the property invested, and the admonition to use only the income, except in case of sickness or necessity, when he could draw on the principal, and giving the remainder after his death to her brother's and sister's children. This lady's will shows not only consideration and affection, but judgment and discretion. If she had appointed any other person her executor, we doubt if counsel for complainants of any one else would have ever entertained the idea for a moment that he was any more than a trustee for the beneficiaries under the will. No particular form of words is necessary to create a trust. Any language in a will indicating that the donee is to hold the devise or bequest for the benefit of others, in whole or in part, is sufficient; or when one is charged with a duty respecting it, from the performance of which others are to reap a benefit, the property is in his hands as a trust fund. Perry Trusts, § 112; Harding v. Glyn, 1 Atk. 469; Pushman v. Filliter, 3 Ves. 7; Brest v. Offley, 1 Ch. Rep. 246; Moriarty v. Martin, 3 Ir. Ch. 26; Bernard v. Minshull, 1 Johns. 276; Cook v. Ellington, 6 Jones Eq. 371; Warner v. Bates, 98 Mass. 274. We think the language of this will creates a trust, and that the execution of the same is devolved upon the executor. 1 Perry Trusts, 262; Richardson v. Knight, 69 Me. 285; Pettingill v. Pettingill, 60 id. 412; Wilson's Estate, 2 Penn. St. 525; Williams v. Conrad, 30 Barb. 524. There is no legal objection to his being at the same time trustee and beneficiary. Perry Trusts, § 117; Whiting v. Whiting, 4 Gray, 240; Carr v. Living, 28 Beav. 644; Andrews v. Bank of Cape Ann, 3 Allen, 313; Chase v. Chase, 2 id. 101; Loring v. Loring, 100 Mass. 340; Gilbert v. Bennett, 10 Sim. 371. This case comes clearly within the exception of the statute, which permits the filing of the complainant's bill (How. St., § 6614), and which was intended to apply to this class of cases. Craig v. Hone, 2 Edw. Ch. 569.

The statute was intended for the benefit of the needy and unfortunate, and its provisions should be made to apply to all cases coming within its spirit, which has always been the rule of this court, Alvord v. Lent, 23 Mich. 369. There is no surplus to be looked after or reached in this case. The answer shows, and it is one of the things that must be taken as admitted, that the income is barely sufficient for the payment of the legacies and the defendant's support, but it is impossible for any one to tell what amount of either principal or interest, or of both, may yet be required for the support of the defendant and testatrix's mother, and the whole estate is in trust for both of those purposes. It is difficult to see how this question can be determined before the decease of these benefificiaries, and then whatever there may be will pass to the other legatees entitled thereto under the will. Cummings v. Corey. Opinion by Sherwood, J. [Decided Nov. 9, 1885.]

MINNESOTA SUPREME COURT ABSTRACT.

AUCTIONEER-LICENSE OF AUTHORITY OF MAYOR TO REVOKE-ST. PAUL CHARTER-CERTIORARI.-The city charter (ch. 4, § 3, Mun. Code, St. Paul) authorizes the common council "to license and regulate all auctioneers," and to "at any time revoke any license granted under this act for malconduct in the course of trade." As the charter contains no other provision for the revocation of licenses, this one is exclusive, and as the council cannot delegate the authority thus delegated to it (In re Wilson,32 Minn.145), it cannot by ordinance or otherwise confer the power of revocation upon the mayor. The mayor's attempted revocation

in this instance, though pursuant to an ordinance, was therefore unauthorized and void. The attempted revocation was not however a judicial or quasi judicial act. The subject-matter of revocation of auctioneers' licenses was not in any respect or in any circumstances within his official jurisdiction. He had no authority of any nature in matters of that kind. His act of attempted revocation, though doubtless well intended, was a clear usurpation. It was therefore not only not judicial or quasi judicial, but not even official. Hence certiorari will not lie to review it. Locke v. Selectmen of Lexington, 122 Mass. 290, appears to be precisely in point. There Chief Justice Gray, speaking of an unauthorized act of the selectmen, which if authorized would have been of a judicial nature, says: "It is not a case of excess of jurisdiction by a court legally established, but a case of no jurisdiction and no court." And upon this ground the writ of certiorari prayed for was refused. See also Ewing v. St. Louis, 5 Wall. 413; Wood v. Peake, 8 Johns. 69; In re Daws, 8 Adol. & E. 936; People v. Covert, 1 Hill, 674. State v. Mayor of St. Paul. Opinion by Berry, J. [Decided Nov. 11, 1885.]

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SALE-BILL OF DESCRIPTION OF PROPERTY -EVIDENCE.-Plaintiff on June 19, 1883, executed a bill of sale to defendants, describing the property as "all my entire possessions at Grand Rapids, ineluding the certain household furniture and all paraphernalia thereunto belonging to said house; also six lots in No. 27; 12 lots in block No. 5; also one flat boat, one span of horses, one wagon, one tote-sled, one pung.' The sale was for a gross price. At the time, plaintiff kept a hotel at Grand Rapids, and also kept a saloon across the street from the hotel. In the saloon he had a quantity of liquors, which he claims to have sold to defendants at a subsequent sale, to-wit, on June 26th, and for the price of which this suit is brought. There is sufficient evidence to sustain the judgment for plaintiff, unless as claimed by defendants both here and by seasonably raising the objection in the court below, the liquors passed by the bill of sale, so that oral evidence of a contrary intent would be inadmissible. The phrase "all my entire possessions," taken without any qualification, would of course carry the liquors. So it would carry every thing else that the plaintiff possessed, even the clothes on his back, his personal ornaments, or pictures, if he had any, of his wife and children, and the material for his next meal. It is hardly reasonable to suppose from the use of so general terms that the parties meant such articles to pass; in other words, that they used the phrase in its broadest sense, although we might be obliged to give it that meaning if there were nothing else in the contract to qualify it. We naturally seek to find a qualification in the contract; and the qualification or imitation is there. A general description of the subject may be restrained by a more particular description in the same contract. Broom Leg. Max. 646; 3 Washb Real Prop. 400; Thorpe v. Thorpe, 1 Ld. Raym. 235; Wood v. Rowcliffe, 6 Exch. 407; Moore v. Magrath, Cowp. 12; Barney v. Miller, 18 Iowa, 460. This is especially the rule where the general description is indefinite, or such as to suggest the idea that the parties could not have used it with its fullest and largest meaning. As said by Lord Mansfield in Moore v. Magrath: "It is very common to put in a sweeping clause, and the use and object of it in general is to guard against any accidental omission; but in such cases it is meant to refer to estates of the same nature and description with those that have been already mentioned." It is very clear that the parties did not intend this sweeping clause to carry every thing possessed by plaintiff. For instance, it specifies one flat boat, one span of horses, one wagon, one tote-sled, one

THE ALBANY LAW JOURNAL.

second story with its easements, that they being in
possession have at least a color of title which is suffi.

Peaks v. Blethen. Opinion by Danforth, J.
[Decided Nov. 16, 1885.]

pung. Only one each of these several articles could pass, no matter how many he may have had. We cannot suppose the particular description was in-cient, as the plaintiff has failed to show a better one. tended to enlarge the general one-to add something to it but rather as intended to render it more definite and certain by specifying particular articles and A stock of classes of property as intended to pass. liquors is not suggested by any thing in that particular description. It was therefore proper to prove by parol a sale of the liquors at a subsequent date. McAlpine v. Foley. Opinion by Gilfillan, C. J.

[Decided Nov. 14, 1885.]

CALIFORNIA SUPREME COURT AB-
STRACT.

SUPPLEMENTAL PROCEEDCONSTITUTIONAL LAW INGS-ACTION AGAINST DEBTOR OF JUDGMENT DEBTOR. The provision of section 720 of the Code of Civil Procedure purporting to authorize the judge, by order to permit the judgment creditor to institute and maintain an action against the alleged debtor of the judgment debtor is unconstitutional and void, for the reason that by such section no notice to the judgment debtor of the proceeding is provided for; otherwise the alleged debtor of the judgment debtor might be compelled to pay twice. Bryant v. Bank of California. Opinion by Myrick, J. [Decided Nov. 25, 1885.]

PAYMENT BY STRANGER FOR BENEFIT OF CRED. -TERMS CANITOR-CONTRACT WITH MUNICIPALITY NOT BE CHANGED BY LEGISLATION.-One person cannot, without authority, pay the debt of another, and charge the amount so paid against the party for whose benefit the payment was made. A contract entered into with a municipality, which provides for a certain mode of payment by the city, cannot be changed by subsequent legislation, so as to authorize a performance different from that prescribed in the contract. And payments made in conformity with such subsequent legislation, will not bind the contractor unless assented to by him. McGee v. City of San Jose. Opinion by Morrison, C. J.

[Decided Nov. 25, 1885.]

MAINE SUPREME JUDICIAL COURT AB-
STRACT.

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PRIVILEGE TO BUILD A SECOND REAL ESTATE STORY ON SCHOOL-HOUSE-TITLE TO-SALE OF SCHOOL· Certain persons were HOUSE -RIGHT OF PARTIES. permitted to build a public hall as a second story of a new school-house, and after completion an agent, authorized by the school district, leased the second story to such persons with necessary easements of ingress and egress, and with equitable provisions in regard to keeping the building in repair, etc., "so long as the building shall stand;" the building in its several parts was occupied in accordance with the agreement for nearly thirty years, when the district voted "to sell the school-house and lot under" the hall, and their agent did convey all their interest in the land and building thereon. In a real action by the grantee against the occupants of the hall, held, (1) that the title to the hall was never in the district; it inured to the builders before the execution of the instrument called a lease by virtue of their having built it under a license from the district, and the purpose of the paper was to regulate the use and give the easement; (2) that the vote to sell did not authorize a conveyance of the hall, and the deed could go no further than the authority; (3) the defendants having disclaimed all except the

RECENT ENGLISH DECISIONS. WILL-GIFT-EVIDENCE THAT IT WAS INTENDED AS AN ADVANCEMENT.-After a testator had made his will, giving his son a share in his residuary estate, he purchased for such son certain farming stock, and set him up on a farm. Shortly afterward the testator died, and the trustees of the will debited the son with a sum of money, equal to the value of the farming stock, as having been advanced to him by the testator by way of loan, and as a debt due from him to the estate. Held, that although Grave v. Earl of Salisbury, 1 Bro. C. C. 425, laid down that where there had been a gift of farming stock there was no presumption that it was intended as an advance to be set off against a legacy receivable under a will, yet Kirk v. Eddowes, 3 Hare, 509, was an authority that evidence was admissible to show that at the time of the gift the testator expressed his intention that such gift was an advance to be set off; that in this case the court was of opinion that such an intention had been proved, and that therefore the value of the farming stock must be deducted from the share of the son. Ch. Div., June 18. Matter of Turner. Opinion by Kay, J. (53 L. T. Rep. [N. S.] 379. LIABILITY CORPORATION SECRETARY.

SENTATION BY

OF FOR MISREPRE- The secretary of the defendant company falsely, fraudulently, and without the knowledge of the directors of the company, represented to the plaintiff that if the plaintiff took certain shares in the company he would be appointed solicitor to the company, and afterward represented that the plaintiff had been appointed solicitor. The plaintiff was induced by the secretary's representations to apply for shares in the company. He accepted and paid for the shares, and afterward paid calls on them, and received a dividend. Held, in an action by the plaintiff against the company, that the secretary had no such implied authority to make representations on behalf of the company as to render the company liable to the plaintiff for the fraudulent representations of the secretary, and therefore the plaintiff was not entitled to have his name struck off the register of shareholders, nor to recover the price which he had paid for the shares, or the calls which he had paid, and was liable to the defendants on their counter-claim for further calls. Ct. of App., June 22. Newlands v. Nat. Opinions by Employers' Accident Assn., Limited. Brett, M. R., Baggallay and Bowen, L.JJ. (53 L. T. Rep. [N. S.] 242.)

CAPITAL

WILL GIFT OF INCOME TILL MARRIAGE ON MARRIAGE-VESTED OR CONTINGENT.-Testatrix by her will after bequeathing certain Russian bonds, gave

all the rest of her stocks'and shares wheresoever or in whatsoever invested to her executors and trustees upon trust to pay the dividends and interest thereof to her great-nephew until his marriage, and at the time of his marriage to hand over the stocks and shares to the said nephew. Held, that the nephew took a vested interest. Ch. Div., July 29, 1885. In re Wrey. Opinion by Kay, J. (53 L. T. Rep. [N. S.] 334.)

WILL - ENDOWMENT OF A PUBLIC INSTITUTION PURCHASE OF LAND-HIRING ROOMS.-A testatrix by her will bequeathed a collection of pictures, china plate, books, and articles of vertu to trustees to form an art museum in Bath, to be called the H. Museum, and bequeathed to the trustees a sum of money to be

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