making a deposit a trust for another, which was in force when the deposit in question was made. If a deposit in the depositor's name does not create a trust relation, no more would that relation be created by depositing in another person's name, or making it payable to another's order. The claimant therefore cannot stand on the ground that the bank became a trustee when the deposit was made without any declaration of trust.

III. But it is further insisted in behalf of this claimant, that the transaction created a trust between her and Barlow; that is, that the latter held the bank pass book as trustee for the claimant.

The general doctrine is now settled that a perfect and completed trust is valid and enforceable, as between the trustee and beneficiary, although purely voluntary. It is not essential that the beneficiary should have had notice. But a voluntary trust which is still executory, incomplete, imperfect, or promissory, will neither be enforced nor aided. A perfect or completed trust is created where the donor makes au unequivocal declaration, either in writing or by parol, that he himself holds the property in trust for purposes named. He need not in express terms declare himself trustee; but he must do something equivalent to it, and use expressions which have that meaning. If the intention is to make such a transfer as would constitute a gift, but the transaction is imperfect for this purpose, the court will not hold the intended transfer to operate as a declaration of trust; "for then every imperfect instrument would be made effectual by being converted into a perfect trust."

The act constituting the transfer must be consummated, and not remain incomplete or rest in mere intention; and this is the rule whether the gift is by delivery only, or by the creation of a trust in a third person, or in creating the donor himself a trustee. "An imperfect voluntary assignment will not be regarded in equity as an agreement to assign for the purpose of raising a trust."

In order to render a voluntary settlement valid and effectual, as a trust, it must appear from written or oral declaration, from the nature of the transaction, the relation of the parties and the purpose of the gift, that the fiduciary relation is completely established. These propositions are established in numerous cases. See Milroy v. Lord, 4 De G. F. & J. 264; Richards v. Delbridge, L. R., 18 Eq. 11; Heartley v. Nicholson, L. R., 19 Eq. 233; Young v. Young, 80 N. Y. 422 (citing many cases); Martin v. Funk, 75 id. 134; Webb's Est., 49 Cal. 541; Stone v. Hackett, 12 Gray, 227; 2 Pom. Eq., $996, et seq.; Urann v. Coates, 109 Mass. 581; Gerrish v. Bank, 128 id. 159; Clark v. Clark, 108 id. 522; Ray v. Simmons, 11 R. I. 266; Minor v. Rogers, 40 Conn.

512.

In the light of these settled rules, and of what Barlow did, the question is whether what he said constituted a declaration of trust. As stated by Lord Cranworth in Jones v. Lock, L. R., 1 Ch. App. 25: "The cases all turn upon the question whether what has been said was a declaration of trust, or an imperfect gift."

On the 15th day of January, 1880, Sidney Barlow deposited in the defendant bank $800, of his own money, and took therefor deposit book No. 10,973, issued by the bank, which he always kept and controlled. No name of a depositor appeared on any deposit book, but merely a number. He directed the treasurer to enter the name, Marion Cushing, this claimant, on the bank register as the person in whose name the deposit was made, and to enter, "Payable to S. Barlow"; and this was done.

In March and June following Barlow borrowed sums of money from this bank, giving his individual notes therefor, and pledging this pass-book as security; and

when the notes became due he withdrew from this deposit to apply in payment of the notes a sum which left the balance of the deposit less than $400. On August 20, 1880, Mr. Barlow, being in ordinary health, verbally directed the treasurer to add to the said entry. "Payable to S. Barlow," so as to make it read as follows: "Payable to S. Barlow during his life and after his death to Marion Cushing," which was done. It does not appear that any thing else was ever said or written by Mr. Barlow to any one in respect to this deposit, or his intentions in regard to it. A by-law printed in said pass-book provided that no deposit could be withdrawn without the production of this book. The treasurer understood this deposit was under Barlow's control, and regarded and treated him as the depositor and that it was his money; and the bank had no communication with Miss Cushing or any one else in respect to it. Nothing else occurred in regard to it previous to his death. He left a will, made before this deposit, in which was this provision: "I hereby confirm all gifts I have made or shall make to any of my children." Marion Cushing was a grandchild, living in California.

The money deposited was Barlow's. The pass-book was the evidence of the deposit, and took the place of the money in his hands. No species of property could be more easily transferred or delivered. Nothing was said indicating an intention to hold the book in trust other than the direction to make said entry on the bank register.

In Taylor v. Henry, 48 Md. 550, one H. deposited in a bank a sum of money belonging to himself, to the credit of himself and his sister M., so that the account was entered, "H. M. and the survivor of them, subject to the order of either, received $1,850." A short time after, H. drew out $50, and died in about a month, leaving the $1,800 on deposit. Held, that since H. retained the power and dominion over the money, there was not a complete gift, and the transaction did not constitute a valid declaration of trust in M.'s fa

vor.

Other leading cases to the same import are Mitchell v. Smith, 4 De G. J. & S. 422; Scales v. Maude, 6 De G. M. & G. 43; Jones v. Lock, L. R., 1 Ch. App. 25; Heartley v. Nicholson, L. R., 19 Eq. (233; Young v. Young, 80 N. Y. 422.

In Martin v. Funk, supra, cited by counsel for this claimant, the depositor declared at the time that she wanted the account to be in trust for the plaintiff (who was so claiming it), and it was so entered.

In Barker v. Frye, 75 Me. 29, the depositor informed the treasurer of the bank that she desired to make a deposit for each of four grandchildren, naming B. as one of them, to which she proposed to make additions, etc., and saying, "she wanted to do something for the children;" and took pass books in their names, though subject to the order of the depositor during her life-time.

In these cases it was held that the deposit created a valid trust, the depositors holding the pass books as trustees, but they differ from the case at bar: In the New York case there was a plain declaration of trust; in the Maine case the declaration, though not of a trust in terms, strongly imports the intent to create one. Two English cases, not cited by the claimant but tending to support her claim of a trust, viz.: Richardson v. Richardson, L. R., 3 Eq. 686, and Morgan v. Malleson, L. R., 10 Eq. 475, have been repeatedly criticised in this country and England, and are regarded as contrary to the doctrine settled by the weight of authority, and virtually overruled.

There is in other cases an apparent lack of harmony in some respects; notably as to the importance of notice to the beneficiary, aud as to the effect of the do

MIDDLESEX FREEHOLDERS V. STATE BANK.* In April, 1877, one Short recovered a judgment at law against the defendants' receiver. He gave to his attorney a note for his costs and professional services in that action and in a foreclosure suit then pending in this court, and agreed that the attorney should hold the judgment as collateral security for the note. Short died in June, 1877, and nothing has ever been paid on account of the note. In August, 1878, the receiver obtained a decree for deficiency, against Short, in the foreclosure suit. Held, that the attorney was entitled to receive from the receiver payment of the costs of the suit at law, in full, with interest from the date of the judgment, and that he was entitled to receive the dividends on the rest of that judgment, or so much of them as will be sufficient to pay his note and interest, the receiver's claim to offset the decree for deficiency against the judgment being disallowed.

ON petition and stipulation as to facts and affidavits.

W. Strong, petitioner, in pro. pers.

A. V. Schenck, for receiver.

THE CHANCELLOR. James Short recovered a judgment in the Middlesex Circuit Court, April 24, 1877, against the receiver of the State Bank at New Brunswick, for $312.99 damages, and $66.33 costs, in an action of assumpsit brought against him by the bank before the appointment of the receiver. The suit was pending when the receiver was appointed, and he was substituted as plaintiff. Short's judgment was upon his set-off in the suit. The petitioner was his attorney in that suit.

In May, 1877, Short gave to the petitioner, for the amount of his counsel fee ($175) and costs ($66.33) in that suit, and his fee ($30) for his professional services in a foreclosure suit brought by Joseph Fisher against him, his note, dated the 31st of that month, for $221.33, payable at two months from date. Within a few days after the recovery of the judgment, and before the giving of the note, it was agreed between the petitioner and Short that the former should hold the judgment as collateral security for his whole claim against the latter (the items first mentioned), and that if he should be able to collect the money due thereou he should retain the amount due him (unless he should have previously received it from Short), and should pay over to Short the balance. Short died intestate June 19, 1877. He never paid the petitioner's claim nor anything on account of it. When the judgment was recovered there was pending in this court a foreclosure suit (the one before mentioned), brought by Joseph Fisher against Short, on a mortgage given by the latter to the bank and assigned by it to Fisher merely for the purpose of foreclosing it in his name.

*11 Stew. N. J. (Eq.) 36.

In

that suit a final decree for foreclosure and sale of the mortgaged premises was made February 19, 1877. The decree also contained the usual decree for the payment of deficiency by Short. Execution for the sale of the mortgaged premises was issued April 20, 1877, and the property was sold under it November 13, 1877. The deficiency was not ascertained until August 19, 1878, when an order was made establishing it at $3,685.36, and directing that execution issue against Short to collect it. Short died, as has been stated, in June, 1877, which was long before the deficiency was ascertained. His administratrix, under the order of this court to limit creditors in this cause, in August, 1877, presented to the receiver her claim, under oath, to the money due on the judgment in the Circuit Court, subject to the petitioner's claim. It is understood that though the receiver has paid dividends to the creditors whose claims have been allowed, he has paid none on the Short claim, but has retained the dividends thereon in his own hands to await the judicial determination of the questions which are now before me. The petitioner insists that he is entitled to receive from the receiver the amount of the costs of the judgment in full, with the lawful interest thereon. and also dividends at the same rate as those paid to the other creditors upon the rest of the amount of the judgment. The receiver, on the other hand, claims that he has a right to set off so much of the decree for deficiency as is necessary for the purpose, against the judgment, and that under the circumstances the petitioner has no claim or equity superior to his.

The assignee of a judgment, who acquired his title to it before the recovery of a judgment by the defendant in the assigned judgment against the plaintiff therein, has an equity superior to such defendant's claim to set off the one judgment against the other. The agreement between debtor and creditor that the latter shall have a claim on a specific fund for the payment of his debt operates as an appropriation of the fund pro tanto to the payment of the debt, and as an equitable assignment of the fund to that extent. And the assignment of a chose in action may be by parol. In the case in hand it was agreed between Short and the petitioner that the latter should have a lien upon the judgment for the amount due him from the former. At that time the receiver had no judgment against Short, for the decree for deficiency in the foreclosure suit had not the force and effect of a judgment at law until the time when the amount of the deficiency was ascertained, which was not until August, 1878. The equity of the petitioner is superior to that of the receiver. He is entitled to payment of the costs of the judgment in full, with interest thereon from the date of the recovery of the judgment. They are costs which were awarded against the receiver in a suit prosecuted by him for the benefit of his trust, and were payable at once and in full. The petitioner is entitled to the dividends on the rest of the amount of the judgment, or so much of them as will be suffi cient to pay the balance due him from Short's estate on the note. In view of the fact that the assignment was by parol, merely, and therefore the receiver could not safely recognize the petitioner's rights without the direction of the court, no costs should be allowed to the petitioner.

NOTE. In the King's Bench, in England, the rule is that judgment between the parties cannot be set off so as to deprive the attorney of his lien for costs, Mitchell v. Oldfield, 4 T. R. 123; Randle v. Fuller, 6 id. 456; Glaister v. Hewer, 8 id. 69; Middleton v. Hill, 1 M. & S. 240; Mellville v. Leesom, 1 E., B. & E. 324; Simpson v. Lamb, 7 E. & B. 84; see Mercer v. Graves, L. R., 7Q. B. 499.

But the rule is otherwise in the Common Pleas,

In Collett v. Preston, 15 Beav. 458, an application to set off costs recovered by B. against A., against costs recovered in a suit respecting the same matter, by A. against B., was refused, because it would interfere with the solicitor's lien; see Nicholson v. Norton, 7 Beav. 67.

CONSTITUTIONAL LAW-EMINENT DOMAIN-PRIVATE USE.-The fact that the use to which real estate is intended to be put, or the structures intended to be built thereon, will tend incidentally to benefit the public by affording additional accommodations for business, commerce or manufacture, is not sufficient to bring the case within the right of eminent domain, so long as the structures are to remain under private ownership or control, and no right to their use or to direct their management is conferred upon the public, and the taking for such a use without the consent of the owner cannot be authorized by statute. Accord

Some American cases hold that the solicitor's lien is subordinate to equities existing between the parties to the judgment, Porter v. Lane, 8 Johns. 357; Ross v. Dole, 13 id. 306: People v. Manning, 13 Wend. 649; Crocker v. Claughly, 2 Duer, 684: Shirts v. Irons, 54 Ind. 13; Ex parte Lehman, 59 Ala. 631; even after the judgment has been assigned to the attorney, as security for his costs, Cooper v. Bigalow, 1 Cow. 206; Wright v. Treadwell, 12 Tex. 252; unless the claims sought to be set off arise out of other matters, Carter v. Bennett, 6 Fla. 215; Robertson v. Shutt, 9 Bush, 659; Monawk Bank v. Burrows, 6 Johns, Ch. 317; and notice of the lien has been given by the attorney, Hurst v. Sheets, 21 Iowa, 501; Andrews v. Morse, 12 Conn. 444; Leavenson v. Lafontane, 3 Kan. 523; Peckham v.

Barcalow, Hill & Den. 112; Johnson v. Ballard, 44 Ind. 270; Daniels v. Pratt, 6 Lea, 443; see Newbert v. Cunningham, 50 Me. 231; Walker v. Sargeant, 14 Vt. 247.

The lien of the attorney however in an assigned judgment is now generally recognized as superior to any right of set-off as to the judgments between the parties, Terney v. Wilson, 16 Vr. 282; Shapley v. Bellows, 4 N. H. 347; Dunkin v. Vandenbergh, 1 Paige, 622; Gridley v. Garrison, 4 id. 647 (but see Nicoll v. Nicoll, 16 Wend. 446); Zogbaum v. Parker, 55 N. Y. 120; Firmenich v. Bovee, 1 Hun, 532; Prouty v. Swift, 10 id. 232; Davidson v. Alfaro, 16 id. 353; 80 N. Y. 660; Eberhardt v. Schuster, 10 Abb. N. C. 374; Currier v. Boston R., 37 N. H. 223; Boyer v. Clark, 3 Neb. 161; Rice v. Garnhart, 35 Wis. 282; Warfield v. Campbell, 38 Ala. 527; Renick v. Ludington, 16 W. Va. 378; Diehl v. Friester, 37 Ohio St. 473; Brown v. Bigley, 3 Tenn. Ch. 618; Wells v. Elsam, 40 Mich. 218; Ripley v. Bull, 19 Conn. 53; Stratton v. Hussey, 62 Me. 289; even where the judgment sought to be set off was recovered before the other judgment, Benjamin v. Benjamin, 17 Conn. 110; Ely v. Cooke, 2 Hilt. 406; 28 N. Y. 365; Perry v. Chester, 53 id. 240; Ennis v. Curry, 22 Hun, 584; Naylor v. Lane (N. Y.), 29 Alb. L. J. 212; see Dingee v. Shears, 29 Hun, 210; Stillman v. Stillman, 4 Lea, 271; Jeffres v. Cochrane, 47 Barb. 557; 6 Alb. L. J. 198; Prince v. Fuller, 34 Me. 122; Neil v. Staten, 7 Heisk. 290. See further, 1 Am. Law Reg. (N. S.) 419, note. Especially where the judgment has been assigned to the attorney as security for his costs. Rumrill v. Huntington, 5 Day, 163.

A defendant against whom a judgment has been recovered cannot, by thereafter purchasing a judgment against the plaintiff, offset it so as to defeat the attorney's lien. Bradt v. Koon, 4 Cow. 416.

The attorney must prove clearly what is the amount of his costs and disbursements, Hooper v. Brundage, 22 Me. 460: Adams v. Lee, 82 Ind. 587; Ocean Ins. Co. v. Rider, 22 Pick. 210; and move promptly to secure his lien. Holt v. Quinby, 6 N. H. 79; see Stone v. Hyde, 22 Me. 318.-J. H. STEWART, REP.

-

STOCK

667, Laws of 1881), purporting to authorize the E. B. W. & M. Co. to acquire title to lands by proceedings in invitum, was unconstitutional and void. Matter of Eureka Basin, etc., Co. Opinion by Rapallo, J. [Decided May 6, 1884.] MORTGAGE FORECLOSURE - RAILROAD HOLDER, RIGHTS OF LACHES-FORFEITURE.-After the foreclosure sale the only property interest which a stockholder of the old company has left is in the surplus, if any, after satisfying the mortgage and other preferential claims. It is entirely optional with him whether he will come in under the plan and join the new company. All the statute secures to him is the option or privilege to join the new company by a compliance with the terms of the plan. If he elects to join the new company, then he gets a proportional in

terest therein which may be of great value to him. But his right to join the new company, so far as it depends upon the statute, must be exercised "within the six mouths." If he fails within that time to exercise his right by assenting to the plan, and thus becoming a party thereto, he cannot take or claim any rights under the plan. It is clearly a condition precedent that he must signify his assent to the plan within six months. If he fails to do so, he forfeits no property, as that was swept away by the foreclosure sale; he loses simply the right or privilege to join and become interested in the new company, and thus to acquire an interest in property. That is a forfeiture, if it can properly be so called, which the law imposes, and against which the courts can give no relief. Story Eq. Jur., §§ 1325, 1326; Robinson v. Cropsey, 2 Edw. Ch. 138; Gorman v. Low, id. 324; Weed v. Weed, 94 N. Y. 243. In such a case equity cannot relieve him from the performance of the condition precedent, and thus vest him with rights of property which he did not otherwise have. City Bank v. Smith, 3 Gill & J. 265; Bapham v. Bamfield, 1 Vern. 83. It would lead to intolerable inconvenience, confusion and difficulty if the stockholders of the old company could in such a case take their own time to assent to the plan of reorganization, and to assert their right to become members of the new company upon such facts as they would be able to establish in a court of equity. Vatable v. N. Y. Lake Erie & West. R. Co. Opinion by Earl, J. [Decided May 6, 1884.]

TRUST-VALID MORTGAGE TO SECURE CLAIMS— STATUTES AS TO ASSIGNMENT-PRACTICE-AMENDMENT

-DISCRETION.—(1) A conveyance by a solvent debtor, of a portion of his property to trustees, to pay a portion of his creditors, containing a provision that any surplus after execution of the trust shall be returned to him, is not as matter of law fraudulent and void as to creditors not provided for. A conveyance of real estate upon such a trust is authorized by the Revised Statutes (1 R. S. 728, § 55), and an assignment of personal property upon such a trust, with a reservation of the surplus, does not violate the statute against per

sonal uses. 2 Rev. Stat. 135, § 1; Cooper v. Whitney, 3 Hill, 95; Curtis v. Leavitt, 15 N. Y. 9. (2) An insolvent, and even a solvent debtor cannot convey all his property to trustees to pay a portion of his creditors, with a provision that the surplus shall be returned to him, leaving his other creditors unprovided for; because such a conveyance ties up his property in the hands of his trustees, places it beyond the reach of his creditors by the ordinary process of the law and thus hinders and delays them, and is therefore void as to the creditors unprovided for. But there is no rule of law and no reason for holding that a solvent debtor may not devote a portion of his property, by a trust deed, to the payment of a portion of his creditors, and if he leaves property sufficient for the payment of his other creditors, they have no just or legal ground of complaint. Here there was evidence justifying the referee in finding that upon the execution of the trust deed assailed, the assignor had ample property to pay all his creditors not mentioned in that deed. (3) That any debtor, whether solvent or insolvent, may, acting in good faith, mortgage a portion or the whole of his property to secure one or more of his creditors for any indebtedness, cannot be doubted. The referee found that the assigner was at the time solvent, and it has never been questioned that such a debtor may mortgage his property to secure existing claims as well as future loans and advances. Hendricks v. Robinson, 2 Johus. Ch. 283; Leavitt v. Blatchford, 17 N. Y. 521; Dunham v. Whitehead, 21 id. 131; Robinson v. Williams, 22 id. 380; Ackerman v. Hunsicker, 85 id. 43; 39 Am. Rep. 622; Simons v. First Nat. Bank, 93 N. Y. 269. (4) The statutes regulating assignments for the benefit of creditors (Ch. 348, Laws of 1860; ch. 860, Laws of 1867; ch. 92, Laws of 1870, and ch. 838, Laws of 1872) have reference only to general assignments made by insolvent debtors for the benefit of all their creditors. (5) Where the court has power to order a complaint to be amended and other parties brought in, it is not bound to exercise that power, and may dismiss the complaint without prejudice to the right to bring another action. Knapp v. McGowan, Assignee. Opinion by Earl, J.

[Decided May 6, 1884.]

WILL-LIMITATION OVER-INTEREST QUALIFIED SUBSEQUENT CLAUSE.-The will of S., after giving certain legacies, gave in case of her leaving any child or children her surviving, two-thirds of her residuary es. tate to her executors in trust for the benefit of such child or children until of age, with remainder in fee to the children on arrival of age; the remaining onethird was given to her husband and mother to be equally divided between them. The will then provided that in case of the death of all the children of the testatrix (if she had any), after her death and before they became of age, her husband should receive, out of her estate in full of all claims under the provisions of the will, the sum of $20,000 theretofore loaned to him by the testatrix, and the residue was given to her mother. In case she left no surviving children the testatrix gave to her husband said $20,000 and the residue of the estate to her mother. The testatrix died leaving her husband, one child, an infaut, and her mother. In proceedings for an accounting by the executors, held that the clause providing for the case of the death of the children under age was solely intended to dispose in that event of the twothirds previously given to them, and did not affect the gift of the one-sixth to the mother, and that she took an absolute title to said one-sixth upon the death of the testatrix; also held that there was no error in compelling the account of said one-sixth interest upon the aggregate of the principal and interest of the whole estate up to the time of the surrogate's decree, after

deducting them from the debts, legacies and expenses of administration. It is undoubtedly true that an interest given in one clause of a will, in terms denoting an absolute estate, may by force of a subsequent clause, be qualified by a limitation over in a certain event, or be cut down or made to take effect only on a contingency. This is but the application of a familiar rule, that the construction of a will or other instrument is to be made upon the whole words and not upon a part only, and that a particular word or clause may, in the light of other words or clauses, mean more or less than it imports, considered singly or by itself alone. Taggart v. Murray, 53 N. Y. 233. But there is another rule of construction of equal force and not inconsistent with the one just stated, and that is that when an interest is given or an estate conveyed in one clause of an instrument, it cannot be cut down or taken away by raising a doubt from other clauses, but only by express words or by clear and undoubted implication. Thornhill v. Hall, 2 Cl. & Fin. 22; Roseboom v. Roseboom, 81 N. Y. 356. The surrogate disallowed the claim of the mother of the testatrix to said one-sixth, and directed the whole residuary estate to be invested and retained by the executor until the infant child died or became of age; the mother did not appeal. The executor appealed in 1880 from other parts of the decree. In her answer to the appeal, the mother alleged said portion of the decree to be erroneous. Held, that the General Term had jurisdiction to review and to reverse said decision. Rule 42 of Sup. Ct., rule (1878); Code of Civ. Pro., § 2587. Freeman v. Coit. Opinion by Andrews, J. [Decided May 6, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

JURISDICTION-FEDERAL QUESTION-PUBLIC LAWDECISION OF STATE COURT.-There is no Federal question in this case. The right of San Francisco under the treaty of Guadalupe Hidalgo to the lands in dispute as pueblo lands is not denied. Precisely what that right was may not be easy to state. Mr. Justice Field speaking for the court, said, in Townsend v. Greely, 5 Wall. 336: "It was not an indefeasible estate; ownership of the lands in the pueblos could not in strictness be affirmed. It amounted in truth to little more than a restricted and qualified right to alienate portions of the land to its inhabitants for building or cultivation, and to use the remainder for commons, for pasture lands, or as a source of revenue, or for other purposes. This right of disposition and use was in all particulars subject to the control of the government of the country." This definition was accepted as substantially accurate in Grisar v. McDowell, 6 Wall. 372, and Palmer v. Lowe, 98 U. S. 16. The act of July 1, 1864, ch. 194, § 5, 13 Stat. 333, simply released to the the city all the right and title of the United States in the lands (Hoadley v. San Francisco, 94 U. S. 5), and thus perfected the incomplete Mexican title for the uses and purposes specified. Palmer v. Lowe, supra. Its effect was to surrender all future control of the United States over the disposition and use of the property by the city. The only controversy in this case is as to the effect of the alcade grant of the pueblo title; and the precise question submitted to the Supreme Court of the State for determination was "whether, after the conquest, * * ** and before the incorporation of the city of San Francisco, and be fore the adoption of the Constitution of the State of California, a person exercising the functions of an alcalde of the pueblo of San Francisco * *** could make a valid grant of pueblo lands, as such officers had

been before such conquest accustomed to do," and if so, what would be the effect of such a grant? This does not depend on any legislation of Congress, or on the terms of the treaty, but on the effect of the conquest upon the powers of local government in the pueblo un. der the Mexican laws. That is a question of general public law, as to which the decisions of the State court are not reviewable here. This has been many times decided. Delmas v. Insurance Co., 14 Wall. 661; Tarver v. Keach, 15 id. 68; New York Life Ins. Co. v. Hendren, 92 U. S. 286; Dugger v. Bocock, 104 id. 596; Allen v. McVeigh, 107 id. 433. City of San Francisco v. Scott. Opinion by Waite, C. J.

[Decided May 5, 1884.]

BANKRUPTCY-SALE FREE FROM INCUMBRANCESRIGHTS OF LIEN-HOLDERS-MERGER-QUESTION OF INTENTION. Where a bankrupt sale of property is made free from all incumbrances, it does not bind the holder of a lien against the property whom the record fails to show was served with process, or otherwise notified of the proceedings. Ray v. Norseworthy, 23 Wall. 128. In equity, where an incumbrancer of property, by mortgage or otherwise, becomes the owner of the legal title or of the equity of redemption, merger will not be held to take place, if it is apparent that it is not the intention of the owner, or if it is against his manifest interest. Where the mortgage of property secures notes held by different parties, a bankrupt sale, by order of court, will not merge part of the mortgage and keep a part alive, the legal and equitable title being united, although one of the holders had notice of the sale and the other had not. And the party who had notice, the mortgage being kept alive, is entitled to a share in the proceeds of a new sale, and to be recompensed out of the proceeds for taxes and improvements, although he must account for rents and profits. The rule on this subject is thus stated by Jones Mort., § 848: "It is a general rule that when the legal title becomes united with the equitable, so that the owner has the whole title, the mortgage is merged by the unity of possession. But if the owner has an interest in keeping these titles distinct, or if there be an intervening right between the mortgage and the equity, there is no merger." And in the case of Forbes v. Moffatt, 18 Ves 384, Sir William Grant says: "The question is always upon the intentions, actual or presumed. of the person in whom the interests are united. '

Other authorities cited by Mr. Jones sus tain the principle. Clark v. Clark, 56 N. H. 105, is directly in point. Loud v. Lane, 8 Met. 517; Titsworth v. Stout, 49 Ill. 78; Armstrong v. McAlpin, 18 Ohio St. 184. It is to be observed in the present case that as the mortgage, which secured the two notes owned by the insurance company, was the same which secured Mrs. Murphy's notes, as between which there was no priority, it would hardly be held, on the order of the court to sell the property free from all incumbrances, that the purchase by the insurance company merged part of the mortgage, while part was kept alive. This is expressly decided in Barker v. Flood, 103 Mass. 474. Factors and Traders' Ins. Co. v. Murphy. Miller, J.

[Decided May 5, 1884.]

Opinion by

VENDOR AND VENDEE-LIEN OF VENDOR-DECREEINTEREST, HOW COMPUTED.-(1) Where it is evident from the report of the master in chancery, in an action to enforce a vendor's lien, based on a contract for the sale and purchase of land, that the amount of the lien, as fixed by the decree, was found by estimating the quantity of land, and not by actual survey, the survey having afterward been made, and the true quantity of land ascertained, the decree will be made to conform to it. (2) A decree will not be disturbed on

the strength of meager and indefinite testimony. (3) An agreement for the sale of lands examined, in an action to enforce a vendor's lien, and the time from which interest should be allowed to the vendor on the price of the lands determined. Baines v. Clarke. Opinion by Waite C. J.

REMOVAL OF CAUSE-FORCING HEARING-ACT OF MARCH 3, 1875-WHEN RIGHT TO REMOVE LOST.-(1) Where a case is removed from the State to the United States court, and a party is forced to a hearing in the latter, although the petition for removal was filed too late, and a motion to remand refused, the party having saved his rights by record may have the error corrected in the appellate court after the final decree be low. Removal Cases, 100 U. S. 475; Railroad Co. v. Koontz, 104 id.16. (2) When a term, at which a cause as a cause can be first tried, has passed by all right of removal, under the act of March 3, 1875, is gone, and a to file pleadings being afterward granted, does not create a new right of removal. It is true that the creditors got leave to file pleadings within ninety days, and that their answers and cross-bills were in before that time expired. But this operated only as an amendment of the original pleadings, and created no new right of removal. As was said in Babbitt v. Clark, 103 U. S. 612, "the act of Congress does not provide for the removal of a cause at the first term at which a trial can be had on the issues as finally made up by leave of court or otherwise, but at the first term at which the cause as a cause could be tried." Edrington v. Jefferson. Opinior by Waite, C. J. [Decided May 5, 1884.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

SHIP AND SHIPPING-COLLISION PRESUMPTION OF FAULT-PREPONDERANCE OF EVIDENCE.-Where a collision happens between two sailing vessels, the one sailing close-hauled, the other with the wind free, the night being clear and the lights of both vessels seen, the legal presumption is prima facie that the fault was in the vessel sailing free. This presumption is increased by proof of the absence in the latter of any lookout other than the captain standing near the wheel. The evidence of neither of the persons on deck of the latter being obtained, the captain having been knocked overboard and drowned at the time of the collision, and the wheelsman having died before the trial, and the only evidence in her behalf being that of the captain of another schooner about half a mile ahead, sailing in the same direction, who testified that the schooner, sailing close-hauled, just before she was reached luffed up into the wind so that her sails shook, and then paying off ran down on the other schooner, and several witnesses from the schooner close-hauled contradicting the alleged luff, and giving a consistent and probable narrative involving no fault on their part, held, that the luff alleged was improbable under the circumstances, and not sustained by the weight of proof; that the libellants had not overcome the presumption against them by any preponderance of proof; and that the libel must be dismissed. The E. H. Webster, 18 Fed. Rep. 724; The City of Chester, id. 603; The Albert Mason, 8 id. 768; S. C., 2 id. 821. Dist. Ct., S. D. New York, April 28, 1884. Carll v. The Erastus Wiman. Opinion by Brown, J.

SHIP AND SHIPPING- COLLISION-DUTY OF VESSELS-BOTH IN FAULT.-(1) A steamer in the East river, having upon her own starboard hand another

*Appearing in 20 Federal Reporter.