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It is urged on the part of the claimant, that in this class of cases a wish expressed, or a simple request to the devoted and obedient wife, is equivalent to a command. This when voluntarily recognized as an obligation by the wife, in the affairs of married life, may be a very proper and salutary principle and practice in marital polity and domestic etiquette; but it is too romantic, too largely deficient in the sanctions of the obligations of positive law, too loose and uncer

grammatical sense. The testator manifestly appreciated the difference, which every one must recognize between words of absolute devise or bequest, and mere words of recommendation or request. To construe these latter words of recommendation and request as meaning precisely the same thing as words of absolute bequest would be to give them a meaning entirely different from the sense in which they are ordinarily used and ordinarily understood. The "clear and distinct," prior absolute "devise and be-tain to be adopted by the courts, as a rule of law, by quest" to the defendant of all his estate, in language which it is impossible to misunderstand, would be materially "affected" by converting an indefinite and unascertainable part of the absolute estate given to defendant into a trust, by "words not equally clear and distinct," by "inference, or argument from other parts of the will," contrary to the rule expressly laid down by the Code. Had the testator intended to give any part of his estate absolutely in trust for the complainant, he would certainly have so stated, and would have declared what part or how much money he intended to set apart for her. He would have made the extent of his bequest "clear and distinct," as clear and distinct as the devise to the defendant, and not left it to the sole judgment of the defendant, to determine the amount or character or value of the bequest or the extent of his bounty.

The language of the will cited seems to be plain and intelligible. It is not the language of gift or devise or the language of command.

which large estates are to be distributed in opposition to the plain, ordinary, actual matter-of-fact sense of the words of a will. As to myself, I fully concur with Vice-Chancellor Hart, in his observations in Sale v. Moore, 1 Sim. 540, "that the first case that construed words of recommendation into a command, made a will for the testator; for every oue knows the distinction between them." He further adds, that "the current authorities of late years has been against converting the legatee into a trustee." See 44 Am. Dec. 378, n. In my judgment to hold that the precatory words and words of recommendation, found in the will of the late General Colton, create an indefinite trust in an unascertained and uncertain quantum of the estate of the deceased in the hands of Mrs. Colton, for the benefit of the mother and sister of the testator, would be to make a will for the deceased, and not to execute the will made by him.

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tors; "and in case she shall so unite either or both 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." It is argued that under this provision, the recommendation and request, as to care and provision for the testator's mother and sister, would impose the same trust on them, as is imposed upon Mrs. Colton, and that certainly as to them the request is equivalent to a command, and being so as to them, they must have the same construction with respect to Mrs. Colton. But the character of Mrs. Colton, as executrix, and as devisee and legatee are wholly different and distinct. These words of recommendation and request were addressed to her as the wife of the testator, and his devisee and legatee, and not as the executrix of his will as owner, and not administratrix of his estate. She has performed all her trusts as executrix; the estate has been settled and distributed to her as devisee and legatee, and she has been discharged from her trust as executrix. So it appears from the bill.

An argument is sought to be derived in favor of a construction creating a trust from the last two clauses It is clearly language of recommendation and re- in the will, relating to co-executors. In case the execquest, leaving the matter to the discretion and judg-utrix should desire assistance in the execution of the ment of his surviving wife to carry out his suggestion will, the testator provisionally appoints two other or not, or to such extent as seems to her best, accord- gentlemen as executors, and authorizes the executrix to ing to the dictates of her own discretion and judg-associate either one or both as co-executor or co-execument. Such is the plain import of the words, as they would ordinarily be understood, when taken by themselves, and considered by the great mass of English speaking people, without reference to strained, artificial, or technical rules of construction. They are, as it seems to me, so plain to the common mind as not to need interpretation. But when we come to call in other elements recognized by the rules of construction heretofore adopted by the courts, for the purpose of aiding in converting the recommendation and request into a command or gift, we still find that all these elements except one, the certainty as to the objects, are wanting. The testator manifestly understood the force of language. He knew well what language to use to express his intention to make a devise or bequest. There is no uncertain sound in "I give and bequeath to my wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seised or possessed." If he had intended to make a gift, bequest or devise to his mother and sister, he certainly knew in what language to express that intent, and he would have said so, and how much. He has expressed, in specific language, no intention to give to them directly, or to any one in trust for them any portion of his estate; or if any portion what particular portion or how much. He has simply used words of recommendation and request to his sole devisee and legatee, and left the whole matter in express terms to her judgment. This is the plain, natural meaning of his language, when taken by itself, or when considered in connection with all the other language of the will. When we consider the concise, clear, and specific language of this brief will in all its other parts, it seems impossible that the testator should have used words of mere recommendation and request to his wife, committing the whole matter as to the gifts and provisions for them in express terms to her judgment; that he should have requested her to make the gift, when he intended to make a gift, legacy or devise to them himself, when he intended to command.

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This suit is brought against her to enforce a trust vested in her as legatee for the benefit of complainant, and not against her in her representative character of executrix. So the closing passage of the will, making the same provision applicable to her co-executor or co-executors, in the contingency provided for, as I have before made for her in reference to bonds, and duties and powers," has sole reference to the bonds waived, and to the "duties and powers" conferred on her as executrix. It confers no rights, or powers, or duties upon these co-executors in the character of devisees or legatees; and no argument can be derived from this passage to support the creation by the court of a trust.

Upon the views thus taken upon the construction of the will, it is unnecessary to notice the other points argued under the demurrer. The demurrer is sustained, and as the whole case depends upon the construction of the will, no amendment can be made to

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F. O. Clark, for plaintiff and appellant.
E. E. Osborn, for defendant.

CHAMPLIN, J. Plaintiff brought assumpsit, his declaration containing only the common counts. It appears that on the 31st day of December, 1881, plaintiff gave to one John E. Ward his check on the First National Bank of Marquette, Michigan, for $469, payable to the order of John E. Ward, county treasurer, for the purpose of having Ward pay to the auditor-general, at Lansing, certain back taxes upon lands owned by plaintiff, amounting to $468.38. John E. Ward, at this time, was county treasurer of Marquette county, but the check was not received by him in his official capacity, nor was it any part of his official duty to pay such taxes. He kept a bank account at the First National Bank of Marquette, and also at the Lansing National Bank of Lansing. So far as appears, his undertaking to pay these taxes for Neely was wholly gratuitous. He had been in the habit of accommodating parties in this way, and kept a deposit in the Lansing National Bank for this purpose. When any one paid him money to pay back taxes he did not forward it to Lansing, but deposited it at Marquette, and would draw checks in favor of the auditor-general on the Lansing National Bank. The funds deposited in this bank were made in this way: Whenever he received, in the course of his business, any exchange on Chicago, New York, or Detroit, he sent it to this bank at Lansing, and thus saved exchange between Marquette and Lansing. When he received the check from Neely he deposited it to his own credit in his account with the First National Bank of Marquette, and afterward drew it out and applied the money to his

own use.

He never paid the taxes to the auditor-general. About a week prior to January 24, 1882, Ward discovered that he was a defaulter in his office of county treasurer. In this emergency he went to Mr. Wadsworth, one of his sureties on his official bond, to whom he made known his financial condition, and proposed to secure his sureties by transferring to them all his property. During the interview he informed Wadsworth that he had a balance in the bank at Lansing of about $1,500, and that parties had left with him about a thousand dollars for him to pay back taxes with, but did not mention Neely's name as being This was on the 23d of January. one of the number. On the 24th, the defendant, Rood, who was also one of his sureties, came to him with a request signed by all the sureties on his official bond, requesting him to *S. C., 19 N. W. Rep. 920.

make the transfer of his property to defendant, Rood for the purpose of protecting them against loss on account of his defalcation, which he proceeded to do without delay. At that time there was standing to his credit in the bank at Marquette about $91, and in the bank at Lansing $1,423.44 He had made no remittances to the bank at Lansing after receiving the check from Neely, but had checked out some in the mean time. He drew checks in favor of Rood for the balances in both banks, but did not tell him that any of the money in the bank at Lansing was subject to the payment of any back taxes of Neely or other persons, and the jury found as a fact that Ward did not hold $469 on deposit in the Lansing bank for the purpose of paying Neely's back taxes, as the money given to him for that purpose by Neely.

Under these facts plaintiff claims that Ward held this $468.38 only in trust, and that he could not trans. fer title to it to Rood, but that he received it as the money of the plaintiff, and Rood is liable to him for money had and received, and that this action is brought upon that theory, and also upon the theory that it is immaterial whether it was the identical money given to Ward by plaintiff; that he could not transfer any money to Rood until the money he held in trust for others was provided for and set off. The infirmity of this position is that it assumes that Rood received the $468.38 which Neely placed in Ward's hands to pay his back taxes. The rule contended for is well settled, that where property, held upon any trust to keep, to use, or invest in a particular way, is misapplied by the trustee, and converted into differ ent property, or is sold and the proceeds are thus invested, the property can be followed wherever it can be traced through its transformations, and will be subject when found, in its new form, to the rights of the original owner or cestui que trust. Cook v. Tullis, 18 Wall. 341.

But it is essestial to the assertion of a beneficial title in a trust fund that it can be clearly traced into the hands of the party to be charged, though no more than proof of substantial identity is required. In this case the record shows that the money received by Ward on Neely's check was deposited by him in his general ac count in the First National Bank of Marquette. It was not placed there as a special deposit, and its iden tity was lost. It became the bank's money, and the bank became debtor to Ward for the amount. No subsequent appropriation of any of his money was ever made by Ward to pay Neely's taxes, and we are not called upon by this record to decide what effect such appropriation would have had if it had been made, and notice thereof brought to the knowledge of Rood. If when assigning to Rood the recent bank rupt law of the United States had been in force, which saved all trust property from passing to the assignee, Ward had been declared a bankrupt under that law, the money which he received of Neely and deposited in the bank would have vested in the assignee, and Neely could not have recovered it as a trust fund. Thus In re Janeway, 4 N. B. 100, money was left with Janeway by Mary Ann and Margarette Cool to be invested for them. Instead of making the investment, he employed it, with his other means, in specu lations. It was not claimed that it could be identi fied, and the court applied the rule as laid down in Hill Trustees, that where the trust property does not remain in specie, but has been made way with by specific remedy against any part of his estate in bank the trustee, the cestui que trusts have no longer any ruptcy or insolvency, but they must come in as gen eral creditors and prove against the trustee's estate for the amount due them. So in the Robert Hosie case, 7 N. B. 601, Judge Longyear held that when money

was sent to Hosie, who was a banker, for the express purpose of paying a certain note and mortgage, who entered it on his books to the credit of the person who sent it, and before the note and mortgage arrived at the bank to be paid, Hosie went voluntarily into bankruptcy, the party was not entitled to have the money so deposited repaid by the assignee, because it had become impossible to do so, the money having become part of the general assets of the bankrupt, and that he must take his chances with the general creditors. And in Bank of Commerce v. Russell, 2 Dill. 215, which was a case where a bank sent notes to a banker for collection, which he collected and placed with his other funds, the court held that the identical money not having been kept separate and distinct from the banker's other money, it could not be recovered from the assignee as a trust fund. Had Ward not failed or made an assignment, and had refused to pay the taxes, Neely could not have maintained an action against the First National Bank of Marquette for money had and received, based upon this theory that the money deposited by Ward constituted a trust fund. Much less could he have maintained such action against the Lansing National Bank. And if he could not in their hands, it is manifest that he could not follow it through their hands into those of Rood, and recover it in an action for money had and received.

An examination of cases at law where money has passed from the hands of the bailee or trustee to whom it was intrusted, to a third person, will show that the reason for allowing a recovery in an action for money had and received is based upon the fact that such person had received the plaintiff's money under circumstances which showed that he had no right to retain it as against the plaintiff. Thus in Rusk v. Newell, 25 Ill. 226, cited on plaintiff's brief, Rusk sent money by Newell, to be by him delivered to plaintiff's agent to be applied to a specified purpose. Newell delivered the money to the agent and took his receipt. He then received from the agent the same money back in payment of a debt due him from the agent. Here the identical money came to the hands of the defendant. He knew it was plaintiff's money when he received it, and knew it was being misapplied when he received it from the agent to pay the agent's debt due to him. Another case cited on plaintiff's brief will suffice by way of illustration to show the principle upon which the action can be maintained. Thus in Mason v. Waite, 17 Mass. 560, plaintiff had sent a package of money by one Sargent, a stage-driver, to be delivered in Boston. Defendant kept a gaming-house, and won the money from Sargent at a game of faro. Mr. Justice Parker said the identical money of plaintiff came to defendant's hands unlawfully, and that plaintiff could recover it from defendant in an action for money had and received.

In this case Ward received the money from the bank on Neely's check, and the same was placed by the bank to Ward's credit. He then drew checks on his account in the bank from time to time, until there remained due him from the bank about $91,and this indebtedness from the bank he transferred to Rood. The result of the whole proof is that plaintiff has wholly failed to trace Neely's money, or the avails of his money, or of the fund created by it, into the hands of Rood.

As the facts upon which the plaintiff's theory is based are not supported by the testimony in this case, it follows that the judgment of the Circuit Court must be affirmed.

The other justices concurred.

(See 3 Am. Rep. 491; 35 id. 511.-ED.)

UNITED STATES CIRCUIT COURT ABSTRACT.*

CONTRACT-SPECIFIC PERFORMANCE-REMOVAL OF CAUSE-RESIDENT.- (1) In order to sustain an action for specific performance against a railroad company to compel it to construct its line through a certain city, and for other relief, it is necessary for the complainant to prove that he had an agreement with the railroad company whereby that company was bound to construct and operate the main line of its road through that city. (2) A railroad company under a perpetual lease to a foreign corporation is not, by that fact, a resident of the same place as the latter; therefore an action against it and its lessor cannot be removed to a Federal court on the ground of its residence being in a State other than that of the complainant, unless it can be shown that it is not a material party. Cir. Ct., S. D. Iowa, February, 1884. Crane v. Chicago, etc., R. Co. Opinion by Shiras, J.

FRAUD-RIGHTS OF CREDITORS-DUTY OF COURTEFFECT OF ATTACHMENT.-In setting aside a fraudulent conveyance the cardinal rule of equity is to restore the creditors to what they have lost by the transaction, and their rights are satisfied when they are placed in statu quo. The court does not seek to improve their condition by imposing forfeitures and penalties for the sake of punishing the fraud. Where therefore the goods are immediately attached, taken from the vendee before they have been lost, damaged, or depreciated in his hands, and have been sold by the court at a small advance over the price paid by the vendee, the money being in court for distribution, the court did not, on the facts of the case, charge the vendee with any additional sum to increase the value, and allowed the fund to stand as a security to the vendee for a bona fide debt paid by the debtor out of the price given by the vendee. Cir. Ct., W. D. Tenn., May 22, 1884. Flash v. Wilkerson. Opinion by Hammond, J. CONTEMPT-UNITED STATES COURT-PUNISHMENT. -The power of the courts of the United States to punish for contempt and imprison for non-payment of money judgments is circumscribed and controlled by the laws of the State; and where an order made in the progress of the cause is of the character in substance of a judgment or decree for the payment of money, it cannot be enforced upon the theory that disobedience is a contempt. Rev. Stat., §§ 725, 990; In re Atlantic Mutual Ins. Co., 17 N. B. R. 368; The Blanche Page, 16 Blatchf. 1; Catherwood v. Gapete, 2 Curt. 94; United States v. Tetlow, 2 Low. 159; Low v. Durfee, 5 Fed. Rep. 256. Cir. Ct., S. D. N. Y., May 30, 1884. Mallory Manufacturing Co. v. Fox. Opinion by Wallace, J.

CONTRACTS-FUTURES-OPTION-AGENT-INTENT — LEGALITY PRESUMED-EVIDENCE-BURDEN OF PROOF.

-If the parties intend in fact to buy or sell actual cotton, to be delivered at a future time agreed upon by them, it is not a gambling transaction, although they exercise the option in settling the difference in price rather than make delivery; but if the original purpose be not to deliver cotton, but to use the form of a contract for a genuine sale, as a method of merely speculating in the fluctuations of the market price the contract is void, although there be an option of veritable sale and delivery. It is a question of fact for the jury to determine the intention. (2) Where the principal employs an agent to buy "futures," if the dealings be illegal as gambling transactions, the agent cannot recover his advances and commissions, as he is the active agency engaged in placing the contracts and directing the business. (3) Where *Appearing in 20 Federal Reporter.

the defendant employed the plaintiff to buy "futures" in the market of the plaintiff, without specific instructions or restrictions, the plaintiff may assume that the business is to be done by the rules or custom established for himself; and the defendant's knowledge of that custom is not material; neither is his intention to engage in gambling in prices material in determining whether the contracts actually made were illegal; but the test of illegality is the intention of the plaintiff and the other parties to the contracts. If they intended to make contracts for actual delivery, and not for gambling in prices, the defendant is bound for the advances and commissions, although he intended and supposed he was only gambling in prices (4) While the law presumes that every man's contracts are intended to be legal until the contrary appears, and the defendant who sets up illegality must prove it, there is no presumption that any particular contract is valid or invalid, and the plaintiff must prove the case made by his declaration. In doing this, if it appears that the dealings were illegal, he cannot recover, and the jury is to follow the presumption of legality only where there is no proof whatever to satisfy them to the contrary. Cir. Ct., W. D. Tenn., April 30, 1884. Kirkpatrick v. Adams. Opinion by Hammond, J.

OREGON SUPREME COURT ABSTRACT.

ARBITRATION AND AWARD-INVALID-PROMISE TO PERFORM-RATIFICATION.-An award which does not determine all matters submitted to the arbitrators is not binding, but a subsequent promise to perform by the party against whom it is sought to be enforced, operates as a ratification, and renders it obligatory. As the submission might have been by parol, the subsequent parol promise to perform the award, including the value of the surplus material, was a valid ratification of the award in that respect. Page v. Pendergast, 2 N. H. 233. The general rule undoubtedly is that an award which does not determine every matter submitted is not binding. Wats. Arb. 121; Wright v. Wright, 5 Cow. 197; Jackson v. Ambler, 14 Johns. 96; Jones v. Welwood, 71 N. Y. 208; Davis v. Dyer, 54 N. H. 146. But a subsequent ratification takes away all objections, on this ground and a promise to perform the award is sufficient. Cross v. Cross, 17 N. J. Eq. 288; Williams v. Williams, 11 Smedes & M. 393; Culver v. Ashley, 19 Pick. 300. Belt v. Poppleton. Opinion by Watson, C. J. [Decided Jan., 1884.]

MORTGAGE EVIDENCE TO SHOW DEED TO BE-EQUITABLE CONSTRUCTION.~(1) Whether an instrument, not being apparent on its face, is to be regarded as a mortgage, depends on the circumstances under which it was made and the relations subsisting between the parties. Evidence of these circumstances and relations is admitted, not for the purpose of contradicting or varying the deed, but to establish an equity superior to its terms. Pierce v. Robinson, 13 Cal 116; Peugh v. Davis, 96 U. S. 336; Cornell v. Hall, 22 Mich. 377; Campbell v. Dearborn, 109 Mass. 130; Braut v. Robertson, 16 Mo. 143; Horn v. Keteltas, 46 N. Y. 608; Jones, Mortg., § 258. As a consequence of this doctrine each case must be scrutinized and judged by its own surrounding facts and circumstances; and when the result of the evidence is to produce doubt the courts incline to construe the instruments to be a mortgage. Conway's Exrs. v. Alexander, 7 Cranch, 218; Edrington v. Harper, 3 J. J. Marsh. 354; Jones, Mort., § 279. (2) The object of a mortgage is to secure a debt; to effect that purpose the right of disposition must exist somewhere and be founded on the contract of the parties, either expressed or implied. (3) The conveyance of lands for

the purpose of securing the payment of a sum of money, if it leaves a right of redemption upon pay ment of the debt, and if there is a power of sale, whether in the creditor or some third person to whom the conveyance is made for that purpose, it is still in effect a mortgage. "If there is a power of sale," says Miller, J., in Shillaber v. Robinson, 97 U. S. 68, "whether in the creditor of some third person it is still in effect a mortgage, though in form a deed of trust, and may be foreclosed by sale in pursuance of the terms in which the power is conferred, or by suit in chancery." To effect the object of this transaction it was necessary to convey the property in the form adopted, not only as security for the payment of the money advanced, or paid for the plaintiff, but to ens ble them to make the sales necessary to liquidate the debt, and when this was done, when the transaction had accomplished its purpose, it would seem upon équitable principles that the residue of the property, like the excess over the amount of the debt after sale, as decided in Crane v. Buchanan, 29 Ind. 570, would belong to the grantor or plaintiff. Such being the object of the transaction, it would be a fraud on the plaintiff, when the debt secured by the property is paid, to defeat the right of the plaintiff to the residue. Equity, which abhors fraud, will not permit this (Sweetzer's Appeal, 71 Penn. St. 264), nor a fraudulent use of the statute for the prevention of frauds. Ryan V. Dox, 34 N. Y. 308. (4) It is always the actual facts, and not the form of the transac tion, by which equity is governed in determining the real character of the instrument; whether intended as an absolute conveyance or a mortgage, it is equally valid, and equity will give effect to it according to the substantial interest of the parties. Horn v. Keteltas, 46 N. Y. 603. Stephens v. Allen. Opinion by Lord, J. [Decided Jan. 14, 1884.]

MISSOURI SUPREME COURT ABSTRACT.*

BANK-PAPER DEPOSITED FOR COLLECTION AND CREDIT-RIGHTS OF DEPOSITOR AND BANKER.-If paper be deposited in or forwarded to a bank for collection, and in pursuance of a pre-arranged mode of dealing the bank immediately places the amount to the credit of the depositor, and the depositor thereupon draws or is entitled to draw against the same as cash, this works a transfer of title, so that the deposi tor cannot afterward claim the paper; and it is imma terial that if the paper is not paper the bank has the right to charge it back. Citing Clark v. Merchants Bank, 2 N. Y. 380; Scott v. Ocean Bank, 23 id. 289; Lord Eldon in Ex parte Sargeant, 1 Rose, 153: Story Agency, § 228; Ex parte Thompson, 1 Mont. & MCA. 102; and distinguishing Sweeny v. Easter, 1 Wall. 166; White v. National Bank, 102 U. S. 658; First National Bank v. Reno Co. Bank, 1 McCrary, 491; Cecil Bank v. Farmers' Bank, 22 Md. 148; Levi v. Bank, 5 Dill. 107; Mechanics' Bank v. Valley Packing Co., 70 Mo. 643; Millikin v. Shapleigh, 36 id. 598, and Lawrence v. Stonington Bank, 6 Conn. 529. Plaintiffs sent to the Mastin bank a check drawn on defendants, indorsing it thus: "Pay J. J. Mastin, cashier, for collection account of" plaintiffs. The check was inclosed in 3 letter, which stated that it was "for collection and credit." The Mastin bank had a standing arrange ment with plaintiffs to give them "credit on the day of receipt for cash items and checks," and it gave credit for this check accordingly, and plaintiff drew against it the day it was mailed. The Mastin bank sent the check to defendants, who were its correspon dents, and defendants charged the same to the drawer,

*To appear in 79 Missouri Reports.

who had sufficient funds, and credited it to the Mastin bank. The latter had in the meantime failed, and made an assignment, but defendants did not know this. Held, that the title to the check had vested in the Mastin bank, and plaintiffs could not recover the amount of defendants. Ayres v. Farmers & Merchants' Bank. Opinion by Henry, J.

AGENCY--AGENT'S AUTHORITY TO RECEIVE PAYMENT. -The employment of a canvassing agent for the sale of books by subscription confers no authority to receive payment for books sold but not delivered by him, nor ever in his possession. Butler v. Dorman, 68 Mo. 298. Chambers v. Short. Opinion by Henry, J.

COVENANT-LIABILITY OF COVENANTOR-SUCCESSIVE GRANTORS.—(1) The fact that the defendant in ejectment, evicted under title paramount, was not in posfession when the ejectment was brought, is no defense to an action by him against his grantor on covenants of warranty, where it appears that the grantor himself defended the ejectment. (2) Where land has been conveyed with successive covenants of warranty, and the last grantor has been compelled to indemnify his grantee, he may in turn have recourse to his grantor for the amount paid. Dickson v. Desire, 23 Mo. 151; Chambers v. Smith, id. 174; Cockrell v. Proctor, 65 id. 41; Conklin v. Railroad Co., id. 533; Vancourt v. Moore, 26 id. 98; Rawle on Covenants (4th ed.), 341. Jones v. Whitsett. Opinion by Martin, Commissioner. EVIDENCE-PRINTED LAWS AND ORIGINAL ROLLSCHARTER OF A TOWN-EXCEPTIONAL CASE.-The original roll, as deposited with the secretary of State, is the best evidence of a legislative enactment. Yet where there was a discrepancy between the charter of a town as published in the printed laws of the State and the statute roll on file in the office of the secretary of State, in this, that in the former it was provided that the trustees of the town might impose fines for breach of any of their ordinances, not to exceed $20 in amount, and in the latter the word "twenty" was ninety; and from aught that appeared in the record this discrepancy was first brought to the attention of the defendant upon his trial, about twenty years after the enactment of the charter, in an action by the town to recover of him a penalty of $90 for refusing to take out a merchant's license, as required by ordinance. Held, that under the exceptional circumstances of the case, the printed copy of the charter would control in determining defendant's liability. Pacific R. Co. v. The Governor, 23 Mo. 353; Noy's Maxims, 37; 4 Inst. 240; Pease v. Peck, 18 How. 595. Town of Pacific v. Seifert. Opinion by Philips, Commissioner.

VERMONT SUPREME COURT ABSTRACT.

TROVER-CHATTEL MORTGAGE-TENANTS IN COMMON.-S. and W. were the owners of certain furniture. S. executed to the plaintiffs a chattel mortgage of his undivided half of the same to secure them for having signed a note with him as sureties. W. was in possession of the whole furniture; and while so in possession caused S.'s half to be attached on a debt against him; but the property was not removed, and in a few weeks, though after the commencement of this suit, the attachment was released. Held, that the plaintiffs at best were only tenants in common with W.; that W. had a right to the possession equal to that of his cotenants; and that an action of trover would not lie against the officer serving the writ, as his acts did not amount to a conversion. Welch v. Clark, 12 Vt. 681; Frost v. Kellogg, 23 id. 308; Gassett v. Sargeant, 26 id. 424. Spaulding v. Orcutt. Opinion by Veazey, J.

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SPECIFIC PERFORMANCE STATUTE OF FRAUDS.-The orator by verbal contract purchased the wild land in question, entered into possession, built roads and shanties for choppers, and took off a quantity of the lumber. Defendant B., as the agent and attorney of the defendant A., and by his direction, brought suit on a note held by A. against the former owner, and acquired the title in his own name, by attachment and levy, with the understanding of all parties that the land was to be conveyed to the orator, if not redeemed. It was not redeemed, and the orator paid B. according to the contract. A deed was made, but was not witnessed, nor acknowledged, nor delivered, but was expected to be in a short time. A bill having been brought to compel the defendant to deed, held, that by all the authorities such a performance takes the contract from the operation of the provision of the statute for the prevention of frauds, and entitles the orator to a decree in his favor. Pike v. Morey, 32 Vt. 37; Stark v. Wilder, 36 id. 752. The case last above cited very clearly states what is required by way of part performance of a parol contract for the purchase of land to take such contract out of the operation of the statute of frauds, and to entitle the purchaser, in possession, to a decree for a specific performance of the contract. Griffith v. Abbott. Opinion by Ross, J.

STATUTE OF FRAUDS-DEBT OF ANOTHER-WHEN NOT WITHIN.-The debt sought to be recovered in this action is one for which Isaac A. Bailey, father of the defendant, was liable as surety. The defendant was not liable upon it originally. In the year 1863 the defendant took a conveyance of the real and personal property of Isaac A. upon condition that he would pay all Isaac A.'s debts that remained due. This debt in question, which was not negotiable, became the property of the plaintiff on the 31st day of May, 1876, and after that date the defendant promised the plaintiff that he would pay it, if his brother Harvey, who was the principal upon the notes evidencing the debt, did not. The defendant contends that this was a promise to answer for the debt of another, and being in parol, was within the statute of frauds. It has been held in this State that where a debtor places property of any kind in the hands of a third person, and that person promises to pay the debt, such promise is not within the statute. Merrill v. Englesby & Tr., 28 Vt. 150; Wait v. Wait's Executors, id. 350; Smith v. Est. of Rogers, 35 id. 140; Fullam v. Adams, 37 id. 391. Bailey v. Bailey. Opinion by Taft, J. (See 46 Am. Rep. 296.)

NEBRASKA SUPREME COURT ABSTRACT.

STATUTE OF LIMITATIONS-ACKNOWLEDGMENT.-The debtor wrote and sent a letter to the plaintiff creditor within less than four years next before the commencement of the action on the account, saying: "If ever I get able I will pay you every dollar I owe to you, and all the rest. You can tell all as soon as I get any thing to pay with I will pay. As for giving a note it is with it." Held, that the letter acknowledged an I will pay just as quick without a note as isting liability," and thereby took the case out of the operation of the statute of limitations. Devereaux v. Henry. Opinion by Reese, J. [Decided May 28, 1884.]

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TRIAL-RIGHT TO OPEN AND CLOSE-LIBEL-EVIDENCE. (1) In an action for libel, where the defendant justifies and pleads the truth of the charge, and that the publication was founded upon rumor, and was without malice, held, that the question of malice being in issue, the plaintiff was entitled to open and

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