paid for what medical attention he wanted; and in about six months thereafter he died intestate, leaving his property in their possession. Soon after the death of the intestate, the plaintiff, who had married a daughter of the deceased, applied for letters of administration upon the estate, and, before the time had elapsed for obtaining full letters, he received some authority in the nature of letters ad colligendum bona to gather up the goods of the deceased, and sued the defendant for the aforesaid property. The defendant answered, claiming title to the property which remained by parol gift from the intestate in his lifetime, the inducing cause or consideration being the love and affection to his wife, the adopted daughter of the deceased, and the services rendered the intestate in his old age and helpless condition by the defendant and his wife. It was referred to a referee to take the testimony, much of which consisted of the "declarations" of the intestate that he "had given," or "intended to give," the property to Cook and wife, and was taken subject to exception. It is all printed in the brief. The cause came on to be heard by Judge Hudson, who ruled that all the testimony of both the plaintiff and defendant touching transactions and communications of the witnesses with the deceased must be stricken out, under section 400 of the Code; and that all the testimony of other witnesses in behalf of the plaintiff as to declarations of the deceased in support of his title, and against the gift, must also be stricken out. The judge in his decree says that, "after eliminating from the case all this incompetent and irrelevant testimony, and after considering the other testimony, I find that the great weight of the evidence is in favor of the title of the defendant and wife, and is against the claim of the plaintiff.

* I find as a matter of fact that the intestate at the time of his death did not own the property in dispute, having giving the same to the defendant and his wife, and hence the plaintiff cannot recover" - and dismissed the complaint. From this decree the plaintiff appeals upon exceptions: "(1) Because, it is respectfully submitted his honor erred in ruling that all the testimony of witnesses in behalf of the plaintiff as to declarations of deceased in support of his title, and against the gift, must be stricken out, testimony of like nature in support of the gift having been previously introduced by defendant. (2) Because his honor erred in finding that the great weight of the evidence is in favor of the title of the defendant and wife, and is against the claim of the plaintiff. (3) Because his honor erred in finding that this case is similar, in the character of the proof of the gift, to the case of Blake v. Jones, Bailey, Eq. 142, it being respectfully submitted that there is no parallel between the two cases. (4) Because his honor erred in finding that the delivery was made as far as is usual under like circumstances, and that the defendant and wife had possession of the property sufficient

amount to a delivery. (5) Because his honor

erred in finding that the plaintiff gave the horse to defendant and wife for immediate use as their horse. (6) Because his honor erred in finding that the plaintiff had no right to any of the property traced to the defendant's possession, and named in the complaint. (7) Because his honor erred in finding that defendant had only one dollar and fifty cents in his possession of the money of the intestate, and that he had offered to turn over the same to plaintiff. (8) Because his honor erred in deciding that the intestate did not at the time of his death own the property in dispute; that he had given the same to defendant and wife, and adjudging that the complaint should be dismissed." There are no rights of creditors in the case. The intestate seems to have been punctual in paying his debts, and the only contest is between the heirs at law and the defendant.

The general rule of evidence certainly is that declarations are admissible against the interest of the party, but not in his favor. "There is, perhaps, no principle better settled than that when one has entered into a contract, made a gift, or done any other act by which he is bound, he cannot by any subsequent act or declaration of his own avoid or discharge himself from it. If, then, the gift by the testatrix to the defendant's wife was proved, her subsequent declarations were, upon general principles, inadmissible, for the obvious reason that they were irrelevant. They were therefore properly rejected. Cases do sometimes arise in which proof of the gift is made up of repeated declarations of the donor, running through several years; where such declarations are brought in, by the party claiming under it, in support of doubtful evidence of the gift. In these and such like cases, such declaration are admissible in reply to such evidence. The case of Sims v. Saunders, Harp. 374, is an illustration of this." M'Kane v. Bonner, 1 Bailey, 116. It seems that in respect to alleged parol gifts, proof of declarations of the donor is only allowable in doubtful cases upon the question of gift or no gift, and the evidence on both sides consists of declarations of the alleged donor. The doctrine is clearly exceptional in character, and, as it trenches closely on forbidden ground, it should not be allowed to go beyond the necessity of the case, and then be received with great caution. “Where there has been plenary proof of the gift, subsequent declarations of the donor that a gift was not intended is inadmissible." M'Kane v. Bonner, supra. It seems that the circuit judge was entirely satisfied, "from the great weight of the evidence," that "plenary proof of the gift" has been made. And according to the well-established rule of this court that finding of fact will not be disturbed unless it is against the weight of the evidence which we have read and considered, we cannot say there was error of law in excluding the subsequent declarations of the intestate tending to controvert the gift previously made...

But it is strongly urged upon us that there was no sufficient proof of gift perfected by a delivery;

that the whole evidence taken together showed, at the most, an intention to give at the death of the donor, which was testamentary in character and void, as being in conflict with the law as to wills. The question whether there was a delivery was also a question of fact which the circuit judge has decided. It is said, however, that his view of what, under such circumstances, would constitute a legal delivery was error of law. There is no doubt that a parol gift of chattles cannot be made to take effect in futuro. To constitute a legal gift there must be an actual or constructive delivery of possession so as to confer the right of enjoyment in præsenti. The rule seems very plain, but there are so many kinds of personal property, and circumstances are so various, there is often no little difficulty in applying it properly. It has been settled that it is not necessary that there should be in all cases an actual manual delivery. The principle is stated thus: "Property in a chattel cannot be transferred by a parol gift without delivery; but by delivery is not meant an actual manual delivery in all cases, but any circumstances amounting to a clear demonstration of the intention of the one to transfer, and of the other to accept, and which puts it into his power, or gives him authority to take possession, is all that is necessary, and is a fact that is left to the jury." Reid v. Colcock, 1 Nott & McC. 592: Banks v. Hatton, Id. 221; Blake v. Jones, Bailey, Eq. 141. The latter case, as remarked by the circuit judge, "is very similar in the character of the proof" to this. In that case it was held that, "when a donor has repeatedly declared his intention to give, his subsequent admissions that 'he had given,' are sufficient evidence of an actual delivery to complete the title of the donee when it does not appear that the declarations were loose and playful, and particularly when the donor was under a moral obligation to make the gift." Indeed, upon the point of delivery, this case is stronger than that of Blake v. Jones, for there the slaves recovered by a daughter from the administrator of her father were never in the actual possession of the donee. The father had said, "When you get a plantation, I will send them to you, and in the meantime I might as well pay you hire as any one else." While here the property, at the time of the death of the alleged donor, was already in the possession of the person claiming as donee. It may be said that this arose from the accidental circumstances that the intestate at the time of his death was living with the defendant; but it seems to us it is a circumstance entitled to some consideration, at least, in this: that at the time of the alleged gift there was no occasion to make a visible transfer of the possession (the usual evidence of such a gift), for the defendant was already in possession in a general sense.

We see no reason to except the "cream horse" from the other property. It appeared from the testimony of Weekly, Searson, Shaffer, and others, that the intestate, three or four weeks before his death, said: "I have moved to Joe Cook's for

some time. I don't intend to live by myself any more. All I've got I have carried to Joe Cook's, and there is where I expect to stay until I die. And this horse I have given to Joe Cook on condition that, when I want to ride, he is my horse, and, when I have no use for the horse, it's Joe Cook's, and all that I have." "Where the gift of a slave was absolute in its terms, and accompanied with delivery of possession, held that the reservation of a right 'to borrow' under certain circumstances, or to receive 'something like hire' if the donor should stand in need, was a condition subsequent, and did not invalidate the gift although made by parol," etc. M'Kane v. Bonner, supra. The judgment of this court is that the judgment of the circuit court be affirmed.

NOTE.-A mere intention, or naked promise to give, without delivery or some act sufficient to pass the property, is not a gift, but may be revoked, and cannot be enforced. To constitute a valid parol gift of chattels it should be made to take effect in præsenti. The essential elements are delivery of the chattels and an intention on the part of the donor to surrender to the donee his dominion over them.3 Delivery is essential both to gifts inter vivos and to gifts causa mortis.4 But the delivery and words of donation need not always be simultaneous. Actual delivery is usually necessary, but this matter depends largely on the nature of the thing given, and constructive delivery may sometimes be sufficient.8

As the question of the sufficiency of the delivery is the point on which controversies as to the validity of alleged gifts inter vivos usually turn, it may be well to review the authorities upon that subject in detail. Merely pointing out an animal and saying to the person who claims it as a gift, "that is your property, I give it to you," without any further delivery, does not amount to a gift.9 An attempted gift of bonds by placing them in an envelope and making a memorandum thereon, will not constitute a valid gift where the original owner retains them in his own safe and col

15 Kent Com. *438; 2 Sch. Pers. Prop. § 65; Carpenter v. Dodge, 20 Vt. 595; Taylor v. Staples, 8 R. I. 170; Antrobus v. Smith, 12 Ves. 39; Lee v. Missing, 3 W. & M. 519; Kekewich v. Manning, 50 Eng. Ch. 175; Martin v. Funk, 75 N. Y. 134; Northrop v. Hale, 73 Me. 66; Johnston v. Griest, 85 Ind. 503.

2 Shower v. Pilck, 4 Exch. 478; Dole v. Lincoln, 31 Me. 428; Young v. Young, 80 N. Y. 422; s. C., 36 Am. Rep. 634, 639.

3 Jackson v. Twenty-third St. R. Co., 88 N. Y. 520; 2 Kent Com. *439; Noble v. Smith, 2 Johns. 52; Schuck v. Grote (N. J.), 7 Atl. Rep. 852.

4 Young v. Young, 80 N. Y. 422; Durand v. Taylor, 52 Iowa, 503; Curry v. Powers, 70 N. Y. 212; Wilcox v. Matteson, 53 Wis. 23; s. C., 40 Am. Rep. 754; McWillie v. Van Vacter, 35 Miss. 428; S. C., 72 Am. Dec. 127. And see authorities cited in note to Gano v. Fisk, 22 Cent. L. J. 299, 303, and Bradley v. Hunt, 23 Am. Dec. 597, 600.

5 Carradine v. Carradine, 58 Miss. 286; s. C., 38 Am. Rep. 324, 326.

6 "The general rule is to require the utmost delivery of which the thing is actually capable:" 2 Sch. Pers. Prop. § 75. See also Woodruff v. Cook, 25 Barb. 505; Sanborn v. Goodline, 28 N. H. 48; s. C., 59 Am. Dec. 398. 72 Kent Com. *439.

8 Pope v. Randolph, 13 Ala. 214; Carradine v. Collins, Smed. & M. (Miss.) 428.

9 Brewer v. Harvey, 72 N. C. 176. See also Medlock v. Powell, 96 N. C. 499; Taylor's Appeal, 75 Pa. St. 115.

lects the interest for his own use.10 In a recent case in New Jersey, the defendant, who had been living with her grandfather, after his death produced a tin pail containing several hundred dollars in gold and bills together with a paper signed by her grandfather and purporting to give her the contents of the pail. It appeared that there was a much smaller sum in the pail at the time of the gift than at the time of the grandfather's death, and that he had access to and control of the pail at various times between those two dates. The granddaughter claimed the entire amount as a gift, but the court, in an action for discovery of assets, gave judgment in her favor only for the amount in the pail at the date of the writing and in favor of the executors for the balance.11

A symbolic delivery is sometimes sufficient. Thus the delivery of a key to the trunk or warehouse in which the article is stored has been held to pass the title.12 And the delivery of a bank-book by a depositor with intention to give the deposit is a valid gift thereof.13

The mere fact that one deposits money in bank in another's name, but subject to the depositor's order and control and without notice to the person in whose name it is deposited, will not of itself, constitute a gift inter vivos.14 But the gift of a bank-book already in possession of the donee has been held a valid and sufficient gift of the deposit.15 And a deposit in bank in the name of another, although subject to the right of the depositor to the income during his life, the donee assenting thereto, has been held to constitute a valid gift inter vivos, where it appeared that the donor intended it as a valid gift, notwithstanding the fact that he retained the bank-book.16 But a direction by the depositor to the bank treasurer to pay the account to himself during life and afterwards to another, such direction being made after the deposit and without knowledge of the person to whom the payment was ordered to be made, operates neither as a gift nor as a trust in favor of such person.17 As a general rule, in such cases, it is necessary, in order to constitute a gift, that the deposit be made in the name of the donee with the intention on the part of the donor of making a gift of it, and that it be accepted by the donee, either expressly or by implication.18

Where the donee is already in possession, visible or manual delivery, is not generally necessary. 19 And it

10 Young v. Young, 80 N. Y. 422; s. C., 36 Am. Rep. 634. But compare Gerrish v. New Bedford Inst., 128 Mass. 159; s. c., 35 Am. Rep. 365. And see Trow v. Shannon, 78 N. Y. 446.

11 Space's Exrs. v. Guest (N. J.), 10 Atl. Rep. 152.

12 Bedell v. Carll, 33 N. Y. 581; Ward v. Turner, 2 Ves. Sr., 442; Bond v. Bunting, 78 Pa. St. 210; Carleton v. Lovejoy, 54 Me. 445.

13 Camp's Appeal, 36 Conn, 88; s. C., 4 Am. Rep. 39; Penfield v. Thayer, 2 E. D. Smith (N. Y.), 305; Reed v. Spaulding, 42 N. H. 114, 119; Davis v. Ney, 125 Mass. 590; 8. C., 28 Am. Rep. 272; Hill v. Stevenson, 63 Me. 364; s. C., 18 Am. Rep. 231. See also Sheedy v. Beach, 26 Am. Rep. 680, and note, 684.

14 Marcy v. Amayeen, 61 N. H. 131; 8. C., 60 Am. Rep. 320. See also Nutt v. Morse, 142 Mass. 1; Orr v. McGregor, 43 Hun, 528; Burton v. Bridgeport Savings Bank, 52 Conn. 398; 8. C., 52 Am. Rep. 602; Sherman v. New Bedford, etc. Bank, 138 Mass. 581.

15 Providence Inst. for Savings v. Taft, 14 R. I. 502. 16 Smith v. Ossipee, etc. Bank (N. H.), 9 Atl. Rep. 792. 17 Pope v. Cushing, 19 Cent. L. J. 471; s. C., 56 Vt. 284. 18 Scott v. Ford, 140 Mass. 157; 8. C., 2 N. E. Rep. 925. 19 Tenbrook v. Brown, 17 Ind. 410; Allen v. Cowan, 23 N. Y. 502; Wing v. Merchant, 57 Me. 383; Waring v. Edmonds, 11 Md. 424; Sutherland v. Sutherland, 5 Bush (Ky.), 591; Ross v. Draper, 55 Vt. 404; 8. C., 45 Am. Rep.

is not always necessary that the delivery should be made directly to the donee, for it may be made to a trustee for his benefit.20

An acceptance on the part of the donee is necessary to perfect the gift but where it is with his knowledge and for his benefit, in the absence of anything to the contrary, an acceptance will generally be presumed.21 Although not a contract for a consideration, a perfected gift is equally irrevocable by the donor.22

The burden of proof is usually upon the claimant to show a valid gift.28 Declarations of the donor are generally competent for that purpose.24 But declarations of the donor, after delivery are not generally admissible to impeach the gift.25 Declarations of the donee, however, disclaiming ownership are competent.26 W. F. ELLIOTT.

624, and note, 627. Compare Willey v. Backus, 52 Iowa, 401.

20 Dresser v. Dresser, 46 Me. 48; Gardner v. Merritt, 32 Md. 78.

21 "Gifts Inter Vivos," 19 Cent. L. J. 422, 424; Scott v. Ford, 140 Mass. 157; s. C., 2 N. E. Rep. 925, 927; DeLivillain v. Evans, 39 Cal. 120.

22 Monatt v. Parker, 30 La. Ann. 585; s. c., 31 Am. Rep. 229; Bedell v. Carll, 33 N. Y. 581; Stewart v. Hidden, 13 Minn. 43; Kellogg v. Adams, 51 Wis. 138; "Gifts Inter Vivos," 19 Cent. L. J. 422, and authorities there cited..

23 Walker v. Welsh (Mass.), 11 N. E. Rep. 727, 728; Samson v. Samson (Iowa), 25 N. W. Rep. 233; Parker v. Parker, 5 Atl. Rep. 586.

24 Abbott's Trial Ev. 155; McCluney v. Lockhart, 1 Bailey (S. C.), 117; Scott v. Ford (Mass.), 2 N. E. Rep. 925. 25 Abbott's Trial Ev. 155; Sanford v. Sanford, 5 Lans. (N. Y.) 486; McKane v. Bonner, 1 Bailey (S. C.), 116; Hatch v. Straight, 3 Conn. 31. Contra: Rollins v. Strout, 4 Nev. 150.

26 Rich v. Mobley, 33 Ga. 85, 88.

COLORADO....

CONNECTICUT...... DAKOTA...... GEORGIA....

.99, 150, 242 ..39 .86, 263

.73, 78, 138, 140, 269 ILLINOIS.......14, 50, 53, 72, 101, 102, 107, 119, 132, 133, 151, 185, 188, 189, 209, 216, 229, 231, 264, 281, 284, 285, 290, 294, 296, 305 INDIANA.... .13, 17, 20, 41, 113, 153, 155, 182, 208, 213, 223, 226 252, 260, 266, 271, 304 IOWA....19, 22, 24, 38, 58, 95, 148, 162, 174, 176, 214, 248, 253, 254 259, 274, 309

KANSAS......5, 18, 21, 37, 67, 69, 70, 74, 94, 109, 117, 123, 158, 161 165, 195, 196, 197, 211, 219, 227, 247, 261, 267, 270, 272, 275, 282 288, 295 KENTUCKY. LOUISIANA.. MAINE.

.....

.68, 79, 89, 154, 249, 300, 308 .139, 160, 187, 218, 280, 283, 306 .312 171

.32, 40, 61, 96, 106, 152, 173, 178, 201, 299 .298, 301

10, 52, 159, 166, 172, 210, 222, 241, 262, 279 ..43, 56, 80, 85, 199, 200, 258

NEBRASKA........6, 34, 60, 63, 64, 65, 88, 100, 118, 157, 256, 265

NORTH CAROLINA.....6, 8, 9, 12, 33, 42, 71, 77, 82, 83, 87, 90, 92 97, 114, 120, 167, 170, 181, 186, 198, 202, 217, 239, 245, 250, 291 OHIO........ 149 PENNSYLVANIA......51, 105, 115, 131, 144, 177, 207, 228, 256, 278

302

SOUTH CAROLINA... .1, 35, 54, 128, 1. 9, 130, 147, 156, 163, 194 233, 240, 243, 251, 292 TEXAS.....31, 66, 75, 76, 81, 84, 91, 93, 136, 142, 146, 183, 193, 232 246, 310, 311

UNITED STATES C. C.....23, 26, 27. 45, 47, 62, 104, 121, 125, 135 137, 143, 184, 190, 192, 203, 205, 236, 237, 238, 255, 289 UNITED STATES D. C... .2, 3, 4, 44, 46, 108, 206, 230

1. ABATEMENT-Judgment Against Trustee, Revival. A judgment of foreclosure on a mortgage given by a trustee ordered the trustee to pay any deficiency in the amount, and no execution therefor was issued; the judgment may be revived by issuing summons to the trustee's executor to show cause, and the estate subjected to the payment decreed on foreclosure.-McDowall v. Reed, S. C. S. Car., April 11, 1888; 6 S. E. Rep. 300. 2. ADMIRALTY-Costs-Excessive Claim.-A libelant, who has filled a claim for $20,000, and recovered only $500, will not be allowed costs, when it appears that by waiting two days he could have ascertained without risk that his loss would be less than $500.- The Stelvivio, U. 8. D. C. (N. Y.), Feb. 1, 1888; 34 Fed. Rep, 431.

3. ADMIRALTY-Death by Wrongful Act. -Though a State statute allows the personal representative to sue for damages for the wrongful act of another, causing the death of the injured party, such suits are not permissible in admiralty.-Oleson v. The Ida Campbell, U. S. D. C. (Minn.), March 9, 1888; 34 Fed. Rep. 432.

4. ADMIRALTY-Personal Injuries-Contributory Neg. ligence.- -Contributory negligence is a bar to a suit in admiralty for personal injuries; and when the fault is concurrent or mutual, the court will apportion the damages according to the equity and justice of the case. -Olson v. Flavel, U. S. D. C. (Oreg.), March 31, 1888; 34 Fed. Rep. 477.

5. APPEAL-Abatement-Death.-A petition in error on a judgment, wherein the plaintiff is made the only defendant in error, is a nullity, when the plaintiff had died before the petition was filed.-Kuhnert v. Conde, S. C. Kans., May 4, 1888; 18 Pac. Rep. 193.

6. APPEAL-Assignment of Error.-When no excep tions appear in the record, and no errors are assigned, the judgment will be affirmed.—Gulley v. Penny, S. C. N. Car., May 7, 1888; 6 S. E. Rep. 394.

a judgment, whether final or interlocutory, is affirmed on appeal, the court below upon its return cannot modify it, unless in a direct proceeding for fraud, mistake, etc.-Dobson v. Simonton, S. C. N. Car., April 30, 1888; 6 S. E. Rep. 369.

9. APPEAL-Filing Bond-Dismissal.-When an appeal bond has no date, except its justification, which date is long after the time allowed for filing the bond, and it is not shown that the bond was filed in time, the appeal will be dismissed.-Harmon v. Herndon, S. C. N. Car., May 14, 1888; 6 S. E. Rep. 411.

10. APPEAL-From Justice-Review of Evidence.Upon an appeal from a justice of the peace upon questions of law, the evidence being returned, the appellant may avail himself of the point, that there was no evi

dence to justify the judgment.-Palmer v. St. Paul, etc. R. R., S. C. Minn., May 14, 1888; 38 N. W. Rep. 100.

11. APPEAL-Mandate - - Entry of Decree. When one portion of a decree is appealed from and reversed, the entry of a decree below is not erroneous for failure to make any order as to a part of the former decree not appealed from.-Jones v. Jones, S. C. Wis., April 17, 1888; 38 N. W. Rep. 88.

-Al

12. APPEAL- Referee's Report - Exceptions.leged errors in the findings of a referee cannot be assigned for the first time on appeal.-Abernathy v. Withers, S. C. N. Car., April 30, 1888; 6 S. E. Rep. 376. 13. APPEAL-Review. Where the overruling of a motion for a new trial is the only ground upon which an appeal is taken, the appellate court will not consider causes for a new trial which were not before the trial court.-Kernodle v. Gibson, S. C. Ind., May 10, 1888; 17 N. E. Rep. 99.

14. APPEAL-Review.

Where a case is tried by the trial court, and there are no declarations of law made and it is taken first to the appellate court, then to the supreme court, that tribunal can only pass upon the law as dictar decided by the trial court.-Einstein v. Haskell, S. C. Ill., May 9, 1888; 17 N. E. Rep. 59. 15. APPEAL Review Harmless Error. Where special pleas demurred to simply raise the question of plaintiff's ownership and right to maintain the action, and defendant rightfully has the benefit of his entire defense under the general issue, the special pleas and the rulings thereon are immaterial.-Middleton v. Wilson, S. C. Ala., May 17, 1888; 4 South. Rep. 228.

16. APPEAL-Review-Presumptions.-All presump. tions are in favor of the regularity of the proceedings of district court, and its judgments will not be reversed, unless error affirmatively appears of record.-McBride v. Lathrop, S. C. Neb., April 25, 1888; 38 N. W. Rep. 31.

17. APPEAL-Review - Presumption -Instructions. Where the evidence is not in the record it will be presumed on appeal that instructions refused were not warranted by the evidence.-Silver v. Parr, S. C. Ind., May 12, 1888; 17 N. E. Rep. 114.

18. APPEAL-Review-Weight of Evidence.- -A verdict, sustained by substantial evidence, upon which a judgment has been rendered, will not be disturbed on appeal, though the court considers the weight of evidence to be against the verdict.-Lee v. Bermingham, S. C. Kans., May 4, 1888; 18 Pac. Rep. 218.

of Indiana, an appeal does not lie from the judgment of a justice rendered upon a plea of guilty, after the defendant has given replevin bail for the judgment.-Holsclaw v. State, S. C. Ind., May 11, 1888; 17 N. E. Rep. 112.

When a

21. APPEAL-Sufficiency of Evidence. question of fact is submitted to the court, which finds generally for the defendant, such finding is conclusive on the plaintiff, unless it is shown there was no competent evidence to sustain the finding.-McKinney v. Ward, S. C. Kans., May 4, 1888; 18 Pac. Rep. 196.

22. APPEAL-Weight of evidence.- When there is a conflict of evidence, the verdict of the jury will not be disturbed on appeal.-Thompson v. Maxwell, S. C. Iowa, May 12, 1888; 38 N. W. Rep. 125.

An

23. ARBITRATION AND AWARD Submission. agreement by the owner of land to submit to arbitration the amount of compensation for land sought to be taken by a railroad for a right of way is binding upon the parties.-Knoche v. Chicago, etc. R. R. U. S. C. C. (Mo.), Jan. 13, 1888; 34 Fed. Rep. 471.

24 ASSIGNMENT FOR CREDITORS-Filing Claims-Time. -When the assignee for the benefit of creditors makes his report, under Iowa law, at the end of three

months, showing that a claim was filed after the three months, it is his duty to resist its allowance as if filed within the three months. A creditor is not entitled to equitable relief, though he received the notice but two days before the three months expired, the statute being a bar.-Conlee L. Co. v. Meyer, S. C. Iowa, May 11, 1888; 38 N. W. Rep. 117.

25. ASSUMPSIT-Fraudulent Representations-Instructions. In assumpsit for the price of a horse, where the defense is false and fraudulent representations by the plaintiff at the time of the sale, an instruction is correct that no representation can amount to a fraud which is not relied on by the defendant.-Moses v. Katzenberger, S. C. Ala, May 21, 1888; 4 South. Rep. 237.

26. ATTACHMENT-Intention-State Practice.- When an assignee for the benefit of creditors intervenes in a federal court in a case where property in his hands has been attached as property of the assignor, he cannot ask judgment by default, under Missouri law, for failure of the plaintiff to answer his petition, when the attaching officer has filed his answer.-Boltz v. Eagon, U. S. C. C. (Mo.), April 9, 1888; 34 Fed. Rep. 452.

27. ATTACHMENT-Property in Hands of Assignee.Property in the hands of an assignee for the benefit of creditors may be attached by process from the federal court in a suit by a non-resident against the assignor, and the assignee may intervene in the suit.-Boltz v. Eagon, U. S. C. C. (Mo.), March 27, 1888; 34 Fed. Rep. 445. 28. ATTORNEY AND CLIENT-Action for Fees-Evidence.

-A agreed to pay B attorney's fees if he would pro. cure a rehearing in a land case from the secretary of interior: Held, that telegrams and a letter from the secretary, stating that such rehearing would be granted on a certain day, are admissible to prove that the rehearing was granted.- Stewart v. Robinson, S. C. Caf., May 16, 1888; 18 Pac. Rep. 157.

29. ATTORNEY AND CLIENT- Contingent Fee-Rescission.- A gave B a power of attorney, with right of substitution, to collect a claim against the government, agreeing to pay him half of the amount collected. B substituted plaintiff as attorney by indorsement on his contract with A, under an agreement that plaintiff should advance certain moneys and receive half the fee. A afterwards revoked B's power of attorney, and assigned half the money, after it had been awarded, to B and D, who assigned it to defendant: Held, that defendant took half the money, free of all claim by plaintiff, the latter having no written assignment of the claim or written instrument giving him a lien on it.-Porter v. White, U. S. S. C., April 30, 1888; 8 S. C. Rep. 1217.

30. AWARDS Conflicting - Foreign Governments Claims. An answer of the secretary of State that the award of a foreign government is claimed by different parties, and that he cannot pay it without involving the government in suits, in which it is not interested, and that he is willing to pay it over on a joint receipt by all the claimants, is not demurrable.-Bayard v. U. S., U. S. S. C., April 23, 1888; 8 S. C. Rep. 1223.

31. BAIL-Forfeiture-Action on Bond. The surrender of the principal in a forfeited recognizance after the entry of judgment nisi thereon, will not release the sureties from the penalty of the recognizance, but in such case, under Texas law, the court may remit part of the penalty and enter judgment for a part thereof. Sureties cannot defend in an action on the bond on the ground that the indictment against the principal was bad.-Lee v. State, Tex. Ct. App., April 11, 1888; 8 S. W. Rep. 277.

32. BANKRUPTCY-War Claims.- Claims under the Geneva commission against the treasury of the United States do not pass to the assignee in bankruptcy of the party who paid war premiums where the assignment was made before the passage of the act of congress.Heard v. Sturgis, S J. C. Mass., April 25, 1888; 16 N. E. Rep. 437.

33. BANKS-Funds Drawn by Cestui Que Trust-Rights of Bank. -Where an executor authorized the beneAciary under the will to draw on the funds of the estate

deposited by him in bank, and the latter continued to draw on them after the death of the executor, the receiver of the bank cannot recover from such beneficiary for the benefit of the bank's creditors the money so drawn by him after the executor's death.-Bank of Statesville v. Waddell, S. C. N. Car., May 14, 1888; 6 S. E. Rep. 414.

-A recognizance

34. BASTARDY-Bond-Recording.taken by a justice of the peace in a bastardy proceed. ing is valid against a surety thereon, though it was not entered of record on the appearance docket of the district court, as required by law.-State v. Moran, S. C. Neb., April 28, 1888; 38 N. W. Rep. 29.

35. BILLS AND NOTES-When Negotiable.- A con tract to pay money with exchange on New York, or which authorizes the payee to declare it due whenever deemed insecure, is not a negotiable note.-Carroll Co. S. Bank v. Srother, S. C. S. Car., April 19, 1888; 6 S. E. Rep. 313.

A

37. BROKER - Sale of Realty - Commissions. broker employed to sell lands, who brings and introduces a buyer to the owner and starts the negotiations, which result in a sale, is entitled to his commissions, though he was not present until the completion of the sale.-Dreisback v. Rollins, S. C. Kan., May 4, 1888; 18 Pac. Rep. 187.

38. CARRIERS-Breach of Contract-Damages. — In an action against a carrier for failure to deliver fruit trees at the point of destination, the price at which the plaintiff contracted to sell them at that point affords some evidence of their value there.-Clements v. Burlington, etc. R. Co., S. C. Iowa, May 15, 1888; 38 N. W. Rep. 144. 39. CARRIER-Connecting Lines.Where a carrier requires payment of freight in advance for all connecting lines, he is bound to see that those connecting lines are under the same obligations to the consignor as if they had received the goods from him with payment in advance of freight.-Palmer v. Chicago, etc. Co., S. C. Err. Conn., January Term, 1888; 13 Atl. Rep. 818.

40. CARIERS - Discrimination Railroad CompanyStatute. Under the statute law of Massachusetts, it is competent for a railroad company to make a contract with a party, giving him and his agents the exclusive right of coming upon the premises of the company to solicit patronage from passengers arriving there.-Old Colony, etc. Co. v. Tripp, S. J. C. Mass., June 1, 1888; 17 N. E. Rep. 89.

41. CARRIERS-Passengers- Negligence.- -The failure of the proprietor of a coach to furnish suitable lights and good reliable horses, make out sufficient evidence of negligence to constitute a prima facie case against the carrier for personal injuries sustained by the upsetting of a coach in the night.- Anderson v. Scholey, S. C. Ind., May 17, 1888; 17 N. E. Rep. 125.

42. CHATTEL MORTGAGE-Place of Record. -Under North Carolina law, a chattel mortgage of goods in a branch store, recorded in a different county, wherein the mortgagor resides, carries the title thereto as against a mortgage previously recorded in the county where the goods are, though possession was delivered to the latter mortgagee.- Weaver v. Chunn, S. C. N. Car., April 30, 1888;6 S. E. Rep. 370.

A

43. CHATTEL MORTGAGE- Sales by Mortgagor.—— gave a deed of trust on certain planing mill stock to B to secure a debt, under a parol agreement that A might continue to sell the stock for his own benefit in the usual course of trade. Afterwards A assigned, and with consent of the assignee B took possession of this stock under the trust deed: Held, that the trust is valid against creditors of A, who attach the property thereafter.-Dobyns v. Meyer, S. C. Mo., May 21, 1888; 8 S. W. Rep. 251.