to show that it has lost its power to resume its business if permitted to do so. Hence we have absolutely none of the essential elements for presuming a surrender of corporate rights and privileges, which is the ground and reason of holding a dissolution in effect as distinguished from a dissolution in fact. But another question remains for consideration: Did the appointment of the receiver, with the power given him, have the effect of virtually dissolving the corporation? The receiver is ordered to take charge and possession of the property and effects of the corporation, and administer the same according to law, subject to the order of the court. It is to be observed that the statute under which the receiver is appointed is unlike the statute under which a receiver is appointed to close up the affairs of a private corporation whose charter has expired or been annulled by forfeiture or otherwise. Under the latter statute (R. L., § 3275) the receiver, by virtue of the power conferred on him by the statute, not only pays the debts of the corporation, but distributes the balance of the funds, if any, among the stockholders or members of the corporation or their legal representatives, thereby finally settling and winding up all the affairs of the corporation; whereas under the former statute (R. L., 3 3555) the receiver pays the debts only, and does not distribute the surplus among stockholders, because evidently the corporation is still in existence, legally capable of receiving the surplus and of resuming its business and accomplishing the end and object of its creation. And even though the capital is wholly gone, there would seem to be no legal reason before a surrender or a forfeiture to prevent the members from furnishing renewed capital, and then proceeding to use their corporate powers. Coburn v. Boston Papier Maché Manufacturing Co., 10 Gray, 243. But in case of the expiration or annulment of a charter the corporate existence is gone for the purpose of continuing the business for which the corporation was established (R. L., § 3272), and nothing remains to be done with the surplus except to divide it among the stockholders or members. In Bank Commissioners v. Bank of Buffalo, 6 Paige, 497, it is said that as the statute relating to proceedings in equity against corporations contemplates the making of a final decree on the bill or petition against the company that is to deprive it of all its corporate property and powers, and as a receiver appointed upon such a proceeding, unless restrained in his powers by the order appointing him, is absolutely vested with all the corporate property and effects, and authorized to distribute the surplus thereof among the stockholders after payment of the debts of the company, it follows of course that a final order or decree for the ap. pointment of such a receiver is a virtual dissolution of the corporation. The powers thus referred to as conferred upon the receiver are given by statute; and it is said in Verplanck v. Mercantile Ins. Co. of New York, 2 Paige, 438, that the order appointing such a receiver is in effect a final order in the cause, and unless altered or revoked operates a virtual dissolution of the corporation; that it is not a common-law receivership, but that the receiver is a statutory assignee, vested with nearly all the powers and authority of the assignee of an insolyent debtor. And the court points out the difference between such a receiver and a receiver under another section of the same statute and under an earlier statute, which are strictly common-law receivers, such as are usually appointed in suits between party and party, and who have no powers except such as are conferred upon them by the order of their appointment and the course and practice of the court. Indeed, so effective is the statute under which the receiver is said to be a statutory assignee, that after the appointment of such a receiver the answer of the corporation under the corporate seal is of no effect, the corporation being virtually dissolved by the appointment, the statute substituting the receiver for the corporation as to all the corporate property and effects. Davenport v. City Bank of Buffalo, 9 Paige, 12. Now, the receivership in the case at bar is little else than a common-law receivership. The receiver has no particular statutory powers conferred upon him; but in the language of the statute, he is "subject to the Court of Chancery," and is made so by the order of his appointment; and said order is not strictly a judicial act in the sense of being a decree or judgment fl. nally determining rights; and hence it is that the Legislature may authorize the executive department of the government to appoint receivers with authority to take charge of and wind up the affairs of insolvent corporations, such as banking institutions. High Receivers, § 343. And as the object of this proceeding is to protect and preserve the corporate assets for the benefit of creditors, the court may on motion discharge the receiver and allow the corporation to resume the management of its affairs, if satisfied that the interest of all parties would be best subserved in that way; and for aught that appears this company may now be in condition to successfully make such a motion. We do not think that such a receivership as this, in view of the facts disclosed in this case, can be said in any just sense to operate a virtual dissolution of the corporation. Decree affirmed and cause remanded. BANKING-DISCHARGE OF INDORSER-PAROL EVIDENCE AS TO LIABILITY. PENNSYLVANIA SUPREME COURT, APRIL 14, 1884. COMMERCIAL NATIONAL BANK V. HENNINGER.* Where a bank is the holder of a note payable at the banking house, and upon maturity the maker has a deposit in excess of the amount of the note which deposit is not specially applicable to a particular purpose, the bank is bound to apply a part of said deposit to meet the note, and cannot elect to let the note go to protest and hold the indorser. Where such a course is taken the indorser is discharged from liability. Where such a course was taken by a bank, the cashier of A. executed two promissory notes made payable to the order Held, further, A.'s account with the bank is admissible in evi- ERROR *S. C., 15 Week. Notes, 33. Assumpsit by the Commercial National Bank of Reading against Charles Henninger, upon two promissory notes indorsed by defendant. Pleas, non-assumpsit with leave, etc. On the trial, before Hagenman, P. J., the following facts appeared: Charles Henninger, the defendant, sold to B. F. Young certain shares of stock in the Penusylvania Graphite Mining Company, and received therefor his three promissory notes made payable at the Commercial National Bank of Reading, of which Young was the cashier, three, six and nine months after date respectively. They were indorsed by Henninger and discounted by the said bank. Young, the maker, alleging that Henninger had defrauded him in the sale of the Graphite stock,resolved not to pay the said notes, and at the time of the maturity of the second, handed it and the first, which he had renewed, to a notary, who made demand at the bank for payment. Young, the maker, as cashier of the bank, answered that the notes had not been pro vided for, whereupon they were protested, and notice thereof given to Heuninger. He paid the third note when it matured, but refused to pay the first and second, and the bank brought this suit to charge him as indorser. Defendant offered to prove an agreement by Young, as cashier, at the time of the giving of the notes that Henninger's indorsement should impose upon him no obligation to pay, but should operate merely as a transfer of the notes, and further to show that if this transaction between Young and Henninger was unauthorized by the bank, the latter was protected from loss by shares of the capital stock of the bank owned by Young and by his bond as cashier. All of which was objected to by the plaintiff as irrelevant. Objection overruled. Exception. (First, second and third assignments of error.) Defendant also offered to prove a custom among the Reading banks to charge notes made payable at the bank to the account of the maker, without any special direction from the maker so to do. Objected to by plaintiff as irrelevant. Objection overruled. Exception. (Fifth and sixth assignments of error. Defendant further offered in evidence Young's account with the plaintiff bank on February 28, 1882, to show that at the time of the maturity of the notes there were funds on deposit to his credit sufficient to have paid the same. Objected to by plaintiff as irrelevant. Objection overruled. Exception. (Fourth assignment of error. ) Mr. Young testified that the sum deposited to his credit at the time of the maturity of the notes had been raised by the sale of certain securities for the purpose of paying notes other than the ones in suit, and subsequently maturing, and the said balance was actually applied to the payment of such other and subsequently maturing notes. There was no other evidence upon this point. The plaintiff requested the court, inter alia, to charge: (1) A bank is not bound when a note owned by it, and made payable at its banking house, becomes due, to appropriate moneys of the maker on deposit with it to the payment of the note. The indorser has no right to ask that the bank shall do so. Answer. We answer and charge that if Mr. Young had a deposit in bank sufficient to pay these notes on the day they became due, and there were no circumstances shown in the case that would forbid the bank from so doing, the bank was obliged to charge up these notes against Mr. Young's deposit. Especially was the bank required to do so if the jury find that there was some understanding between the cashier and the president that the defendant would not be called upon to pay these notes, and such credit would be no injury to the bank. (Eighth assignment of error.) (2) If the jury believe that B. F. Young made the deposit which composed the balance in bank at the time of the maturity of the notes in suit for the purpose of paying notes other than the ones in suit, he had a right to appropriate said balance to the payment of such other notes; and the defendant was not released from his liability as indorser of the notes in suit. Answer. If the jury believe that Mr. Young made a deposit with the specific agreement with the bank at the time it was made, that the money so deposited was to be used for other notes, then the defendant would not be released from his liability. But the jury will carefully consider the evidence. The deposit was credited on Mr. Young's general account without any entry that it was for a special purpose; and the only evidence of any special purpose is the testimony of Mr. Young, who was the depositor and cashier. He does not say that he ever notified any other officer of the bank of the disposition he intended to make of this deposit. And so far as the evidence goes, it seems to have been an understanding he had with himself. (Ninth assignment of error.) Verdict for defendant and judgment thereon. Whereupon plaintiff took this writfassigning for error, inter alia, the admission of the testimony excepted to, and the answers of the court to the points above set forth. Cyrus G. Derr (D. N. Schaeffer with him), for plaintiff in error. Jeff. Snyder (George F. Baer with him), for defendant in error. PAXSON, J. The fourth and eighth assignments raise the prominent questions of this case. The fourth alleges error in admitting in evidence the account of Mr. Young with the bank on February 28, 1882, for the purpose of showing that there were funds on deposit to his credit sufficient to have paid the notes in controversy; while the eighth alleges the court erred in instructing the jury, in answer to the plaintiff's first point, that if Mr. Young had a deposit in bank sufficient to pay these notes on the day they became due, and there were no circumstances shown in the case that would forbid the bank from so doing, the bank was obliged to charge up these notes against Mr. Young's deposit. Especially was the bank required to do so if the jury find that there was some understanding between the cashier and the president that the defendant would not be called upon to pay these notes, and such credit would be no injury to the bank." The defendant was the indorser of the notes in suit. The maker was B. F. Young, who was also the cashier of the bank. The notes had been discounted by the bank, and were payable there on the day they matured; at the close of banking hours there was on deposit to the credit of Mr. Young a balance sufficient to meet the notes. Instead of charging up the notes against the deposit, the cashier handed them to a notary for protest. The object of this was to hold the indorser, and compel him to proceed against the maker in order to let in a defense which the maker could not set up against the bank. The defendant contends that the failure of the bank to charge up the notes against Mr. Young's deposit relieved him as indorser. That there were no circumstances in the case to prevent the bank from applying the deposit to the notes has been found by the jury. There is no doubt as to the right of a depositor to control his deposit up to the point where the rights of others attach. He may draw it out by his check; he may apply it to a particular purpose by making it a special deposit, or by specific directions communicated to the bank. None of these things is found in the case. The mere mental inten surety cannot be deprived of it. Hence if the bank permit the stock of such debtor to be sold, and its proceeds applied to discharge a debt due to the bank by the same debtor, which originated by a note of subse tion of the depositor, not communicated to the bank, is of no importance. While the right of the bank to charge the notes against the deposit is not disputed, it was at the same time contended that it was under no duty to do so, and that its failure to make such ap-quent date, the surety in the first transaction will be plication did not discharge the indorser. It is to be observed that the bank was the owner of the notes, and not a mere collecting agent. The difference is obvious. The position of the bank was this: It was a creditor of Mr. Young to the amount of the notes discounted; it was the debtor of Mr. Young to the amount of his deposit, and to that extent was in law bound to honor his checks or drafts; it held the defendant as security on the notes by reason of his indorsement thereof; the deposit exceeded the notes, and it had the undoubted right at the close of banking hours on the 28th of August to charge the notes against the deposit. Was it bound to do so as between the bank and the indorser? In order to discuss this question intelligently we must not lose sight of the peculiar character of a bank deposit. The money deposited does not, as is popularly assumed, continue to be the property of the de positor. It becomes the money of the bank the moment it is deposited. The depositor becomes the creditor of the bank, and as before observed, the bank is his debtor, and is in law bound to honor his drafts to the extent of his deposit. Foley v. Hill, J Phillips, 399; Bank of Republic v. Millard, 10 Wall. 152; Carr v. National Security Bank, 107 Mass. 45. When the depositor becomes indebted to the bank on one or more accounts, and such debts are due and payable, the bank has the right to apply any deposit he may have to their payment. This is by virtue of the right of set-off. Where a general deposit is made by one already indebted to the bank, the latter may appropriate such deposit to the payment of such indebtedness. This results from the general doctrine of the application or appropriation of payments. And it may be safely asserted that as a general rule, the former may waive the right to make such application, and allow the depositor to draw out his balance. Where however the rights of third parties intervene the case is sometimes different. The distinction between the liability of a bank to a customer and to a third party is thus defined in Morse on Banks and Banking (2d ed.) 47: “A bank holding a note of a depositor is under no obligation to appropriate a sum sufficient to meet it from funds on deposit immediately upon its maturity, or indeed at any other particular time; they may let the account run on and take the chance that they will not lose in the end. But as toward third parties, the obligation upon the bank is different, and it has been decisively and properly held that the neglect of the bank to make such an appropriation of the principal debtor's funds would discharge the indorsers and sureties." The rule is well settled that "when a creditor has in his hands the means of paying his debt out of the property of his principal debtor, and does not use it, but gives it up, the surety is discharged. It need not be actually in the hands of the creditor. If it be within his control, so that by the exercise of reasonable diligence he may have realized his pay out of it, yet voluntarily and by supine negligence relinquished it, the surety is discharged.' Fegley v. McDonald, 8 Nor. 128; citing Com. v. Vanderslice, 8 S. & R. 452; Everly v. Rice, 8 Harris, 297; Boschert v. Brown, 22 P. F. S. 372, and other cases. " This familiar rule applies to banks as well as other creditors. It was held in Kuhns v. The Westmoreland Bank, 2 Watts, 136, where it was ruled: "The lien which a bank has, by virtue of the seventh section of the act of 21st of March, 1814, upon the stock of its debtor, results for the benefit of the surety of such debtor; and such is that resulting interest that the | thereby discharged." Ramsay v. Westmoreland Bank, 2 P. & W. 163, was a suit against a surety. The facts and the law of the case are sufficiently explained in the following extract from the opinion of the court: "The note on which the suit was instituted had been drawn by William Johnson and indorsed by John Ramsey; he was then a mere surety, and as such entitled to be favored in the law. The evidence he offered was to prove, and would have proved, that a large balance arising on the sale of real estate of William Johnson was in the hands of the sheriff, which was subject and liable to the judgment of the bank, and would have been obtained if due diligence had been used. The case then, if proved as offered by the plaintiff in error to the court below, would have come within the principle stated by the present chief justice in Com. v. Miller's Ad ministrators, 8 S. & R. 457, that no rule in equity was clearer than that where a creditor has the means of satisfaction in his hands, and chooses not to retain them, but suffers them to pass into the hands of the principal, the surety can never be called upon.' Here, to be sure, the bank had not the balance actually in their hands, nor did they actually assent to its passing into the hands of Johnson, but they might by using due diligence, and by doing their duty to the surety, have obtained it, and thus have had satisfaction pro tanto on their judgment from the proceeds of the real es tate of the real debtor, and it was their duty to have done this. The money thus obtained from the sale of real estate of Johnson, on which the bank's judgment was a lien, was actually brought into court. Johnson could not take it out of court, but the bank could have done so, and if they did not, they must lose it, for having had the means of payment in their power they could not pass them by and recover from a surety." Ramsey v. The Westmoreland Bank was approved in the subsequent case of Sitgreaves v. The Bank, 13 Wright, 359, and the same principle has been recognized and followed in numerous later cases, includ ing Fegley v. McDonald, supra. Is it applicable to the case in hand? Of this we are in no doubt. The bank being indebted to Young when his notes matured in an amount exceeding the notes, the latter had the clear right to set off so much of his deposit as was necessary to meet the notes. The defendant as surety was entitled to avail himself of Young's right. It may be illustrated thus: If I am the holder of A.'s note indorsed by C., and when the note matures I am indebted to A. in an amount equal to or exceeding the note, can I have the note protested and hold C. as indorser? It is true A.'s note is not technically paid, but the right to set-off exists, and surely C. may show in relief of his obligation as surety that I am really the debtor instead of the creditor of A. If this is so between individuals, why is it not so between a bank and individuals? Further the note in controversy was payable at the bank. An acceptance or promissory note thus payable is, if the party is in funds, that is, has the amount to his credit, equivalent to a check; and it is in effect an order or draft on the banker in favor of the holder for the amount of the note or acceptance. Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 88. I do not understand this principle to be disputed. The note therefore was a draft on the bank against the deposit of the maker. It was the equivalent to a peremptory order on the bank to pay, or to speak more accurately, to charge the notes against the deposit. And the jury have found that there was no direction on the part of the depositor to interfere with this. It must be conceded that if the deposit had been special, or if previous to the maturity of the note, any arrangement had been made between the depositor and the bank by which the bank had been forbidden to apply the money in its hands to the payment of these notes, the indorser would not be discharged. As was held in Bank v. Speight, 47 N. Y. 668: "If before the maturity of paper held by a bank against a depositor, an arrangement is made by which the bank agrees to hold the deposit for a specific purpose, and not to charge the note against it, the bank may be regarded as a trustee, and the deposit special. In such a case, in the absence of fraud or collusion, an indorser upon such paper has no right to require the application of the deposit toward the payment of the paper upon its maturity." Bank of Wilkesbarre v. Legrand, 13 Week. Notes, 317, is not in conflict with this view. The precise question we are considering was not decided in that case. There Lowenstein had not sufficient funds in the bank to pay the note at the time it matured. Subsequently he made a special arrangement by which he was to continue to do business with the bank, and it was alleged the time of payment had been extended. At several times after this he had sufficient money on deposit to pay the note. The court below subsequently entered judgment against the bank upon the ground principally that the indorser was discharged by the extension of the time,'which judgment was subsequently reversed by this court. It needs but a cursory examination of that case to see that it does not rule this. Nor do the other cases cited by the plaintiff sustain his contention. In Bank of United States v. Carneal, 2 Pet. 543, the question was whether the indorser was discharged by a failure to make demand upon the maker. The note was payable at the bank, the demand was made there, and it was said by Justice Story: "Where a note is payable at a bank it is his (the maker's) duty to be at the bank within the usual hours of business to pay the same." Strong v. Foster, 84 Eng. Com. Law, 201, was not the case of an indorser, but of one of the makers of a joint and several promissory note who claimed to be a surety. It was at least doubtful whether he was a surety; his position on the note did not make him so, and there were no funds to the credit of either of the makers when the note matured. On the contrary, the balance was against them. The court held, under the circumstances of the case, that the failure of the bank to apply a subsequent deposit to the payment of the note did not discharge the defendant, and intimated the opinion it would not have discharged him even had he been a surety. In the National Mahaiwe Bank v. Peck, 127 Mass. 302, it was ruled that: "Where by express agreement, or by a course of dealing between a bank and one of its depositors, a certain note of the depositor is not included in the general account between them, any balance due from him to the bank when the note becomes payable is not to be applied in satisfaction of the note, even for a benefit of a surety thereon, except at the election of the bank." The bank had discounted for B. a note signed by him as treasurer of a town and indorsed by P., the proceeds of which were to be used by B. in his official capacity. Neither the note nor its proceeds were made part of B.'s personal account with the bank. At the time that note matured the bank held the personal note of B., which would mature the next day, and which exceeded the amount then standing to the credit of B.'s personal account. As soon as the personal note matured, the president of the bank directed the cashier to apply the balance of B.'s account to the personal note. Three days after, P. pre sented a check to the bank, signed by B., in which he directed the balance of his account to be paid on account of his official note. The cashier refused so to apply it because of the direction he had received. Held, in an action by the bank against P.on the official note, that neither he nor B. could insist that the amount standing to B.'s credit at the maturity of the note should be applied to the payment of the note in suit. It will be noticed that the official note did not enter into B.'s personal account, and that before B.'s check had been presented at the bank the latter had applied his personal deposit in part payment of his personal note which had matured. Its right to do so is appar ent. As the principles above indicated control this case, a discussion of the remaining assignments is not necessary. To avoid misapprehension, it is proper to say however that the offers of testimony embraced in the first three assignments of error were irrelevant, and should have been excluded. The bank was a holder for value, and the facts set forth in the said offers did not constitute a defense. But the admission of the evidence under these offers did no harm, and it is settled law that for immaterial errors this court will not reverse. Nor is it essential to criticise the admission of the testimony in relation to the custom of the Reading banks to charge a note made payable at the bank against a deposit standing to the credit of the maker. Such a mode of dealing could hardly have the force of a custom considered in its legal sense. But as a course of commercial dealing it was perhaps competent, and at most it merely showed that the banks did what they had a conceded right to do aside from any such custom or usage. Judgment affirmed. COLORADO SUPREME COURT ABSTRACT. CONSTITUTIONAL LAW-GENERAL AND SPECIAL LAW -ASSESSMENT UNDER INVALID LAW.-(1) Where a special city charter cannot be amended by a general law applicable to the whole State, so as to meet the necessities of a particular case, then a special law is authorized by the Constitution itself, and the decision of the question as to whether or not a special law is necessary is for the Legislature, and not for the courts. In the case of State v. Co. Ct. of Boone County, 50 Mo. 317, the court says: "But who is to decide when a general or special law will answer the best purpose? It strikes me that the rule in reference to general or special laws is laid down as a guide for the Legislature, and the Legislature is to judge of the necessity of the particular case. The Legislature is quite as able to do this as the courts. The Legislature must in the first instance exercise their discretion as to the necessity of a special instead of a general act. How can the courts control that discretion? If a discretion be conceded at all, in my judgment the courts have no right to control it. It is agreed that there is no discretion in regard to the passage of certain enumerated laws. They are inhibited by the letter of the Constitution. When the Legislature undertakes to pass these inhibited laws it is the plain duty of the courts to declare them unconstitutional." The above views appear to us to be both sound and applicable to the phraseology of our Constitution. They are affirmed by the subsequent cases of State v. Co. Ct. of New Madrid, 51 Mo. 83, and Hall v. Bray, id. 288. Similar views upon like constitutional provisions are announced in State v. Hitchcock, 1 Kan. 178, and Gentile v. State, 29 Ind. 409. (2) A valid assessment cannot be made under an invalid law or ordinance, and its constitutionality is to be tested not by what has been done under it, but by what it authorizes to be done by virtue of its proI visions. This is the doctrine of the following cases, and many others might be cited to the same effect, but reference to them will be found in the cases cited: Stuart v. Palmer, 74 N. Y. 183; Thomas v. Gain, 35 Mich. 155; Davidson v. New Orleans, 96 U. S. 97; County of San Mateo v. Southern Pac. R. Co., 8 Sawy. 238; 13 Fed. Rep. 722. Brown v. City of Denver. Opinion by Beck, J. [Decided April 1, 1884.] MICHIGAN SUPREME COURT ABSTRACT. LANDLORD AND TENANT-MINING LEASE-TRADE FIXTURES-RIGHT OF REMOVAL.-As between landlord and tenant of a mining lease, engines and boilers erected by the tenant on brick and stone foundations, and bolted down solidly to the ground, and walled in with brick arches; and dwellings erected by the tenant for miners to live in, standing on posts or dry stone walls piled together-where such machinery and buildings were intended to be merely accessory to the mining operations under the lease, and when there was no intention in affixing them to the realty to make them accessory to the soil, and where they can be removed without material disturbance to the land, are regarded as "trade fixtures," and may be removed at or before the termination of the lease. Conrad v. Saginaw Mining Co. Opinion by Champlin, J. [Decided June 25, 1884.] EJECTMENT-ADVERSE POSSESSION-ESTOPPEL-FORMER SUIT. (1) A title to land may be gained by its adverse possession for over twenty years by a party claiming under color of title. (2) Where an ejectment suit to try the title to land was determined in favor of a plaintiff, and after its decision the defendant conveyed the property and his grantee afterward obtained the possession of the land, in an action for ejectment against the latter's grantee, held, that he was estopped from denying the plaintiff's title because of the former suit by his grantor. Scheetz v. Fitzwater, 5 Penn. St. 126; Melvin v. Proprietors, etc., 5 Metc. 15; Sawyer v. Kendall, 10 Cush. 241; Williams v. Dongan, 20 Mo. 186; St. Louis v. Gorman, 29 id. 593; Shaw v. Nicholay, 30 id. 99; Holton v. Whitney, 30 Vt. 405; McNeely v. Langan, 22 Ohio St. 32; Nelson v. Trigg, 4 Lea, 705. Whitford v. Crooks. Opinion by Cooley, C. J. [Decided June 25, 1834.] WILL EXECUTORS-JOINT POWER-RENUNCIATION -EXECUTION BY ONE.-When an executor acts under instructions in a will, rather than under the general powers accorded by statute, and it appears that the testator had confidence in him, and intrusted much to his discretion, nothing but imperative duty can excuse a court for interfering with his acts. Where two persons are named in a will as executors, "with full power and authority to sell and convey real estate," and one of such persons renounces the trust, the other may, under the provisions of section 5844 of Howell's Statutes, execute the power, and a contract executed by him alone to sell and convey such real estate is valid. Dyer, 23; 11 Vin. Abr. 271; Bac. Abr. D. 1; 2 Williams Ex'rs, 810; Jacomb v. Harwood, 2 Ves. 267; Wheeler v. Wheeler, 9 Cow. 34; Bogert v. Hertell, 4 Hill, 492, 503; Weir v. Mosher, 19 Wis. 311; Herald v. Harper, 8 Blackf. 170; Dominick v. Michael, 4 Sandf. 374; Boughton v. Flint, 13 Hun, 206. Co-executors and co-administrators are regarded in law as but one person, and acts done by one are deemed the acts of all in all matters relating to the personal estate. One may execute a valid release of a debt. Murray v. Blatch ford, 1 Wend. 583. He may discharge a mortgage (People v. Keyser, 28 N. Y. 226), may make an assignment of a mortgage (Cronin v. Hazeltine, 3 Allen, 324), and this court has held that a deed made by one of two or more administrators was not void, and not subject to attack in collateral proceedings. Osman v. Traphagen, 23 Mich. 80. The following authorities may also be examined with profit in examining the question raised in this case: Bonifaut v. Greenfield, 1 Cro. 80: Dike v. Ricks, 4 Cro. C. 335; 1 Sugd. Pow. (6th Lond. ed.) 143, 144; Pitt v. Pelham, Ch. Cas. 178; Wardwell v. McDowell, 31 Ill. 364; Clinefelter v. Ayres, 16 id. 329; S. C., 20 id. 465; Conklin v. Edgerton, 21 Wend. 430; Roseboom v. Mosher, 2 Denio. 61; Wills v. Cowper, 2 Ham. 124; Powell Devises, 196, 197; Judson v. Gibbons, 5 Wend. 224. Vernor v. Coville. Opinion by Sherwood, J. [Decided June 25, 1884.] EJECTMENT-Ouster-QUESTION OF FACT-BURDEN OF PROOF.-Ouster is a question of fact, which it is the province of the jury to determine, and the facts and circumstances which went to establish the ouster ought, under proper instructions from the court, to be submitted to the jury. Taylor v. Hill, 10 Leigh (Va.), 457; Cummings v. Wyman, 10 Mass. 465; Purcell v. Wilson, 4 Gratt. 16; Harmon v. James, 7 Smedes & M. 111; Blackmore v. Gregg, 2 Watts & S. 182; Carpentier v. Mendenhall, 28 Cal. 484; Clark v. Crego, 47 Barb. 599. And the burden of proof rests upon the party alleging it. Newell v. Woodruff, 30 Conn. 492; Van Bibber v. Ferdinand, 17 Md. 436. But when both parties rely upon ouster, it is incumbent on the plaintiff to prove it within the statute of limitations. If he introduce evidence tending to prove it within that period, then the burden is shifted to the defendant to prove an actual ouster which occurred anterior to that period. Highston v. Burdette. Opinion by Champlin, J. [Decided June 25, 1884.] NEGLIGENCE-CONTRIBUTORY-PERSONAL INJURY. -Where a person in crossing a railroad track was struck and injured by a passing engine which she was facing, and which she must have seen if not acting heedlessly, held, that she was guilty of contributory negligence. In an action against a railroad company for a personal injury it is incumbent upon the plaintiff to show not only that the defendant was negligent, but that she was in the exercise of ordinary care at the time of the accident; and if this is not shown it is immaterial that she was rightfully upon the defendant's grounds at the time. Pzolla v. Michigan Cent. R. Co. Opinion by Champlin, J. [Decided June 25, 1884.] NEBRASKA SUPREME COURT ABSTRACT. CORPORATION -CAPITAL STOCK · ASSESSMENTS.Where articles of incorporation fix the amount of the capital stock the entire amount must be subscribed before a stockholder is liable to assessment for the accomplishment of the main object of the corporation. unless the articles otherwise provide or there is a waiver of the condition. Salem Mill-dam Co. v. Ropes, 6 Pick. 23; S. C., 9 id. 195; Cabot, etc., Br. Co. v. Chapin, 6 Cush. 53; Shurtz v. S. & T. R. Co., 9 Mich. 259; Topeka Bridge Co. v. Cummings, 3 Kan. 76; Sommerset R. Co. v. Clarke, 61 Me. 384; N. H. C. R. v. Johnson, 30 N. H. 404; P. & R. I. R. v. Preston, 35 Iowa, 118; Fox v. Clifton, Bing. 776; Pitchford v. Davis 5 Mees. & W. 2; Fry's Ex'r v. L. & B. S. R., 2 Metc. (Ky.) 323; Estabrook v. Hotel Co., 5 Neb. 76; Boehme |