In

of an indorsee of negotiable paper, transferred to him. in the usual course of business; it gives him the title to the note, but subject to the rules applicable in case of an assignment of any other chose in action. short, a note negotiable by indorsement, but not indorsed, transferred by delivery, and a note not negotiable, transferred by delivery are equally open to every equitable defense which the maker had against it at the time of transfer; and if the payee could not have recovered at that time the assiguee cannot." Edw. Bills (2d ed.) 270. "The rule is settled by an unbroken series of authorities, that the assignee of a thing in action not negotiable takes the interest assigned, subject to all the defenses, legal and equitable, of the debtor who issued the obligation. ** * That is, when the original debtor or trustee, in whatever form his promise or obligation is made, if it is not negotiable, is sued by the assignee, the defenses, legal and equitable, which he had at the time of the assignment, or at the time when notice of it was given, against the original creditor, avail to him against the substituted creditor." 2 Pom. Eq. Jur., § 704.

Hedges v. Sealy was decided in 1850. 9 Barb. 217. The New York Code was adopted in 1848. The case was on all fours with the one in hand, with this exception: the note was payable to one person, who pledged it as collateral security for money loaned, without indorsement, while in this case the money was payable to two and indorsed by one. The court said:

"Although the plaintiff took the note upon sufficient consideration, and the transfer was consummated by the actual delivery, yet the plaintiff is not a bona fide holder, or indorsee, and entitled as such to recover against the maker, if the proof shows that he had a good defense against it in the hands of Roberts. To entitle the plaintiff to protection from such a defense, in addition to the valuable consideration paid by him for the note, it must also appear that he is the indorsee. The pleadings disclose that it was payable to order, and was not indorsed by the payee. in respect to the note the plaintiff is a mere assignee, and his rights are to be settled by the same rules that govern the case of an assignee of any other chose in action. The rule that the indorsee may recover where the payee may not is founded on the commercial policy of sus taining the credit of negotiable paper. The paper in question was negotiable, but it was not negotiated. It is payable to Robert Roberts or order, and he has not indorsed it. * * * A note negotiable, but not in. dorsed, transferred by delivery, and a note not negotiable transferred by delivery, are open to every equitable defense which the maker had against them at the time of transfer; and if the payee could not have recovered at that time the holder cannot."

"A promissory note, like any other personal property, can be transferred by mere delivery so as to pass the title and the right to sue in the name of the holder, when a note is payable to order and is found in the hands of a person not the payee, without the indorsement of the payee. The difference between such a holder and one who holds by indorsement, is that the former is not entitled to the privileges of a bona fide holder, while the latter is a note payable to order, passed without indorsement, is not taken in the regular course of business, and is subject to the same disabilities as if it had been taken after due, but the title passes sufficiently to maintain a suit in the name of the owner." Pease v. Rush, 2 Minn. 111.

At the time of that decision the Minnesota Code was like ours. St. Minn. 1849-58, p. 534. To the same effect is Terry v. Allis, 16 Wis. 479, under a statute like ours. Rev. St. Wis., 1858. p. 714.

Beard v. Dedolph, 29 Wis. 141, supports the same doctrine, though holding also that an indorsement

made after maturity of a note assigned, but not indorsed before maturity, relates back to the time of delivery, and protects the assignee against every thing subsequent to the delivery. This doctrine is repudiated however by many well-considered cases. Clark v. Whitaker, 50 N.H. 475, and cases there cited; Lancaster Bank v. Taylor, 100 Mass. 22. See also Grimm v. Warner, 45 Iowa, 108; Seymour v. Leyman, 10 Ohio St. 285; McCrum v. Corby, 11 Kan. 470; Franklin v. Twogood, 18 Iowa, 515; Patterson v. Cave, 61 Mo. 439; Boeka v. Nuella, 28 id. 180; Hadden v. Rodkey, 17 Kan. 429.

We have considered the questions before discussed upon the theory that a note like the one in suit, indorsed by one only of two joint payees, is subject to any equities existing in favor of the maker, the same as though it had not been indorsed by either; and such, we think, is the law. Such a note is payable to both, or to their joint order. By the law merchant it cannot be transferred except by the joint indorsement of all the payees. Ryhiner v. Feickert, 92 Ill. 311, and authorities there cited. If a note unindorsed is not transferred in good faith, then one indorsed by a part only is in the same situation. Such a note is surely only transferred in part. 2 Pars. Bills & Notes, 4, 5; Smith v. Whiting, 9 Mass. 333; Dwight v. Pease, 3 McLean, 94; Bennett v. McGaughy, 3 How. (Miss.) 193; Wood v. Wood, 1 Har. (N. J.) 428; 1 Daniell Neg. Inst., $ 684; Lowell v. Reding, 23 Am. Dec. 546. We are satisfied that plaintiff is in no better situation than the payees of this note would have been had they brought this suit; and in that case Nicoletti would have been entitled to credit for all payments made, according to the agreement entered into at the time of the execution of the notes and mortgage, and before notice of the assignment. Davis v. Neligh, 7 Neb. 82; Pecker v. Sawyer, 24 Vt. 464: Britton v. Bishop, 11 id. 70.

The judgment and order appealed from are reversed, and the cause remanded.

CONSTITUTIONAL LAW—ASSESSMENT FOR

SIDEWALKS.

SUPREME COURT OF VERMONT, JANUARY 1884.

BARNES V. DYER.*

A statute empowering the authorities of a city to construc. sidewalks, and make local assessments on the property fronting the same, "for so much of the expense thereof as they shall deem just and equitable," is unconstitutional in that there is no fixed, certain and legal standard for assessment. Such assessment should be made in view of the benefit to the abutting land; but under this statute they may be made in view of the defendant's ability to pay.

SSUMPSIT brought by the collector of city taxes to recover an assessment imposed upon the defendant, by the Court of Common Council of the city of Vergennes, for building a sidewalk in front of his buildings. Trial by jury, June Term, 1883, Powers, J., presiding. Verdict ordered for the plaintiff. The case appears in the opinion.

Stewart & Wilds, for defendant.

J. H. Lucia, for plaintiff.

VEAZEY, J. By an act of the Legislature passed in 1878 the Court of Common Council of the city of Vergennes are "authorized and empowered to construct and repair sidewalks in the principal streets of said city, and to direct in what manner and of what material such sidewalks shall be constructed or repaired,

*S. C., 56 Vt., 469.

and may assess the owners of property through which or frontiug which said sidewalks are constructed, so much of the expense thereof as they shall deem just and equitable," and further providing for notice, hearing, and appeal, etc.

One defense to this suit to recover an assessment imposed on the defendant for building a sidewalk in front of his block of stores, is the alleged unconstitutionality of the said act.

It is not here questioned but that the rule is now settled that a municipal corporation may be authorized to make a local and special tax or assessment for the building of sidewalks and certain other improvements within proper village or city limits, and apportion the expense according to the benefit of the abutting premises. Allen v. Drew, 44 Vt. 174; 2 Dill. Mun. Corp., § 761; Cooley Const. Lim.

The defendant claims that by the act in question, thus leaving to a board of officers to say what in their discretion" is just and equitable," no sufficiently definite legal standard of assessment is fixed, as required by those provisions of the Constitution which were intended as a guard against unequal taxation.

Judge Dillon, in stating the general result of an extended reference to the judgment of the courts of the several States concerning local improvements and assessments, in respect thereof says:

"3. Special benefits to the property assessed, that is, benefits received by it in addition to those received by the community at large, is the true and only solid foundation upon which local assessments can rest.

The cases differ somewhat as to how the benefit may be determined, whether by the frontage or superficial area; but no such question arises here. The only question here is whether the phrase, “as] they shall deem just and equitable," is sufficiently certain as a standard of assessment. If it could be properly construed as meaning only what was just and equitable in view of the benefit of the premises fronting on the improved sidewalk, it would possibly be sufficient. The exceptions do not state upon what view or theory the assessment in question was made. If said clause is fairly liable to a different construction from the one above stated, then it furnishes no certain legal standard of assessment. Did the Court of Common Council determine the amount of this assessment in view of the benefit of the abutting land; or of its value; or of the personal convenience of the defendant; or of the ability of the defendant to pay; or of all these combined? Who can say? Why might they not under this clause assess one man in one view and another in another view? "Just and equitable" in respect to what? The words import no special limita

tion.

In State v. Newark, 8 Vroom (N. J.), 415; S. C., 18 Am. Rep. 729, the chief justice of New Jersey says: "The only safe rule is that the statute authorizing the assessments shall itself fix either in terms or by fair implication the legal standard to which such assessment must be made to conform. In no other way can property be adequately protected."

The act in question makes no express allusion to assessment on account of benefit; neither does it limit the assessment to the amount of benefit. Yet as we have seen, the right to assess at all depends solely on benefit, and must be proportioned to and limited by it.

An improvement might cost double the benefit to the land specially benefited.

In New Brunswick Rubber Co. v. Commissioners of Streets and Sewers, 9 Vroom (N. J.), 190; S. C., 20 Am. Rep. 380, it was decided that where a statute authorized commissioners to assess the cost of a sewer upon lands benefited thereby in such proportion as they should deem just and equitable, no valid assessment could be made under the statute, as it failed to deter

mine the mode of distributing the burden. Knapp, J., in delivering the opinion of the court, says: "In State v. Mayor, etc., of Paterson, 8 Vroom (N. J.), 412, an assessment, certified to have been equitably made, was set aside as governed by no rule. It is not perceived how a legislative enactment which provides no rule or standard for making an assessment for a public work can have higher claim for validity."

That case may be regarded as extreme. A much stricter rule was adopted thau is contended for here. In our statutes providing for general taxes a fixed standard of apportionment has always been adopted, securing uniformity as far as practicable in theory at least in respect to persons and property within the jurisdiction of the body imposing the taxes.

There is greater reason for adhering to this rule in respect to provisions for special assessments. When the money of the few is taken for the benefit of the whole, it is in substance the exercise of despotic power. It is justice when an equivalent is given. In the case of a local improvement there is an equivalent for the assessment when it only equals the special benefit to the property benefited. But it is the right of the citizen to have the law, which reaches into his pocket specially, so guarded as to secure him approximate justice according to legal and constitutional principles. The language of Judge Agnew in the Washington Avenue case, 69 Penn. St. 352, is pertinent: "In questions of power exercised by agents it is sometimes the misfortune of communities to be carried, step by step, into the exercise of illegitimate powers, without perceiving the progression, until the usurpation becomes so firmly fixed by precedents it seems to be impossible to recede or to break through them."

Our Constitution provides that "every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion toward the expense of that protection."

This is less restrictive than the Constitutions of many States; but the cases which have established the rule that the statute authorizing an assessment must fix the legal standard to which it shall be made to couform, have not turned on the phraseology of constitutional provisions. It is every where treated as a general constitutional principle that no member of society shall be compelled to contribute more than his proportion. Unless this is so there is no protection against arbitrary injustice in the imposition of taxes. To secure this protection courts have held that legislative enactments must set up a standard, fix a rule to be conformed to as a guide in all cases, a uniform, certain rule, so far as reasonably practicable, and not susceptible to different applications to different individuals of the class to which it applies. If the enactment fails in this regard it is deemed fatally defective. The proposition is sound, because it is an adherence to the fundamental principles which in a constitutional government are designed to protect the individual against injustice and oppression.

We think the act in question failed to set up a standard by which all assessments for sidewalks in Vergennes must be made; that the words "just and equita ble" do not import with reasonable certainty a limita tion to particular benefits to property benefited. We do not know but that one member of the common council construed the words as applying to one consideration, and another member to a different consideration; nor that any of them limited the consideration to benefits. In short, the enactment was inadequate to the purpose designed by it.

This view renders it unnecessary to pass upon the other points of defense.

Judgment reversed and cause remanded.

WILL-PRECATORY TRUSTS

CIRCUIT COURT, DISTRICT OF CALIFORNIA. SEPTEMBER 22, 1884.

COLTON V. COLTON.*

The will of David D. Colton contains this provision: "I give and bequeath to my said wife, Ellen M. Colton, all my estate, real and personal, of which I shall die seised, or possessed or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them, as in her judgment will be best." Held, that this provision is not an absolute gift, or bequest in trust for the mother and sister of the testator; that it is not an imperative command, to make the provision for their support, but only a recommendation and request, leaving the matter to the judgment and discretion of his surviving wife.

The conditions necessary to raise a trust from words of recommendation and request in a will discussed.

THE opinion states the facts.

W. W. & H. S. Foote and Grove L. Johnson, for complainant.

Crittenden Thornton and Stanley, Stoney & Hayes, for defendant.

SAWYER, Cir. J. This is a bill in equity to establish a trust in favor of complainant in the estate of the late David D. Colton, deceased, in the hands of his devisee and legatee, Ellen M. Colton; and to obtain a decree against the defendant, requiring her to make a suitable provision out of the estate devised and bequeathed to defendant, for the maintenance of complainant.

I re

The will out of which the suit arises is as follows, to wit: "I, David D. Colton, of San Francisco, make this my last will and testament. I declare that all of the estate of which I shall die possessed is community property, and was acquired since my marriage with my wife. I give and bequeath to my said wife, Ellen M. Colton, all of the estate real and personal, of which I shall die seised, or possessed, or entitled to. commend to her the care and protection of my mother and sister, and request her to make such gift and provision for them, as in her judgment will be best. I also request my dear wife to make such provision for my daughter Helen, wife of Crittenden Thornton, and Carrie, as she may in her love for them choose to exercise. I hereby appoint my said wife to be the executrix of this my last will and testament, and desire that no bonds be required of her for the performance of any of her duties as such executrix. I authorize and empower her to sell, dispose of, and convey any and all of the estate of which I shall die seised and possessed, without obtaining the order of the Probate Court, or of any court, and upon such terins, and in such manner, with or without notice, as to her shall seem best. If my said wife shall desire the assistance of any one in the settlement of my estate, I hereby appoint my friend, S. M. Wilson of San Francisco, and my secretary, Charles E. Green, to be joined with her in the said executorship, and authorize her to call in either or both of the said gentlemen, to be her co-executors. And in case she shall so unite either, or both of them with her, the same provisions are hereby made applicable to them, as I have before made for her in reference to bonds, and duties, and powers."

The question is, does this will create a trust in favor of complainant? Do the recommendations and requests, found in the will, give an absolute legacy to *S. C., 4West Court Rep. 11.

the complainant out of the estate, and do they constitute an imperative command to make the provision, or is the matter left to the discretion of the surviving wife, as sole devisee and legatee, to act in the matter as her judgment and feelings shall dictate? It cannot be denied that the earlier English decisions, and a few of the earlier cases in this country, go a long way toward sustaining the claim set up by the complainaut. But later cases, both in England and the United States, considerably limit the construction given by the earlier decisions to precatory words of a will, or words of request or recommendation, and some of them, especially in this country, fall little short of repudiating and altogether overruling the earlier cases. Says Story, on this subject: "In the interpretation of the language of wills also, courts of equity have gone great lengths, by creating implied, or constructive trusts, from mere recommendatory and precatory words of the testator." 2 Story Eq. Jur., § 1068.

After considering the English cases, he adds: "The doctrine of thus construing expressions of recommendation, confidence, hope, wish, and desire, into positive and peremptory commands, is not a little difficult to be maintained upon sound principles of interpretation of the actual intention of the testator. It can scarcely be presumed that every testator should not clearly understand the difference between such expressions, and words of positive direction and command; and that in using the one and omitting the other, he should not have a determinate end in view. It will be agreed on all sides, that where the intention of the testator is to leave the whole subject, as a pure matter of discretion, to the good will and pleasure of the party enjoying his confidence and favor; and where his expressions of desire are intended as mere moral suggestions, to excite and aid that discretion, but not absolutely to control or govern it, there the language cannot, and ought not to be held to create a trust. Now words of recommendation, and other words, precatory in their nature, imply that very discretion, as contradistinguished from peremptory orders, and therefore ought to be so construed, unless a different sense is irresistibly forced upon them by the context. Accordingly in more modern times, a strong disposition has been indicated not to extend this doctrine of recommendatory trusts, but as far as the authorities will allow to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense. 2 Story Eq., § 1070.

The most favorable rule for complainant, now recognized, that can be deduced from the body of the English authorities is doubtless, that stated by Lord Langdale in Knight v. Knight, 3 Beav. 173, where he said: "As a general rule, it has been laid down, that where property has been given absolutely to any person, and the same person is, by the giver, who has power to command, been recommended, or entreated, or wished, to dispose of that property in favor of another, the recommendation, entreaty, or wish, should be held to create a trust: 1. If the words are so used, that upon the whole, they ought to be construed as imperative; 2, if the subject of the recommendation, or wish be certain; and 3, if the objects, or persons intended to have the benefit of the recommendation, or wish be also certain." See 44 Am. Dec. 372, note to Harrison v. Harrison's Admr., 2 Grat. 1. On the contrary, in the language of Story: "Wherever therefore the objects of the supposed recommendatory trusts are not certain or definite; wherever the property to which it is to attach is not certain or definite; wherever a clear discretion or choice to act, or not to act, is given; wherever the prior dispositions of the property import absolute and uncontrollable ownership; in all such cases courts of equity will not