herself, do not militate against the position of the principal case, on account of the constitutional provision that no person shall be compelled in any criminal case to be a witness against himself. See People v. McCoy, 45 How. Pr. 216.

The well-considered cases of Walsh v. Sayre, 52 How. Pr. 334; and Schrader v. The Chicago, R. 1. § P. Rd. Co., 47 Iowa 373, are the only cases with which we are acquainted, besides the principal cases, bearing directly upon the point in question; and if any authority were necessary, these would seem to be conclusive upon the question. We do not be lieve the doctrine of these cases can ever be successfully controverted, founded as they are upon the soundest reason and being necessary to the interests of justice. MARSHALL D. EWELL.

Chicago.

Since the foregoing note was written the Supreme Court of Nebraska has again passed upon the question involved in the principal case of Sioux City & P. R.R. Co. v. Finlayson, and has adhered to that decision: Stuart v. Havens, 22 N. W. Rep. 419. The case of Hatfield v.

St. Paul & D. Rd. Co., 22 Id. 176, recently decided by the Supreme Court of Minnesota, may also be read with profit. In the latter case, which was an action for personal injuries, it was held that the court has power in a proper case and under proper circumstances to require the plaintiff to perform a physical act in the presence of the jury, that will show the nature and extent of his injuries, but that the propriety of doing so in a given case rests largely in the discretion of the trial court. In this case the uncontradicted evidence of a number of witnesses showed that since receiving the injury complained of the plaintiff was lame and "limped" when she walked; and it was held that the court committed no error in refusing to require her to walk across the court room in the presence of the jury. In delivering the opinion of the court, MITCHELL, J., referred to the case of Schrader v.Chicago, &c., B. R. Co., and conceded the correctness of the principle contended for in the above note. Upon the whole no reason appears why we should change the opinion already above stated.

M. D. E.

Supreme Court of Vermont.

WELLS v. TUCKER.

Where a sale is made of land, separate portions of which are subject to separate mortgages, and the vendee as part of the price assumes the payment of said mortgages, and subsequently the vendor is compelled to pay one of them, the vendee cannot maintain a bill against the vendor to redeem the land from such mortgage without also paying the other mortgage.

BILL IN EQUITY. Defendant Tucker, owning a farm on each undivided half of which rested separate mortgages given by him, conveyed the same to defendant Wells, the deed referring to said mortgages, describing the notes thereby secured, and stating that "said Wells assumed the payment of said notes agreeably to their tenor, and to save the said Tucker harmless and indemnified therefrom ;" and the amount due on said mortgage was reckoned as

a part of the purchase-money. Wells accepted said deed, and went into possession under it; and on May 1st 1881, conveyed his equity of redemption to his mother, who now, with his wife who claimed an estate of homestead, filed this bill to redeem one of said mortgages as against Tucker who had been compelled to pay it, without redeeming the other. The master found that the trade for the farm "was all one trade," and the assumption of the mortgages "all one assumption."

J. P. Lamson and S. C. Shurtleff, for complainants.

J. A. & Geo. W. Wing, for defendant Tucker.

The opinion of the court was delivered by

ROWELL, J.-By accepting the deed from Tucker and going into possession under it, Wells assumed and agreed to pay both mortgages as a part of the purchase-money, and to save Tucker harmless and indemnified therefrom. As between Tucker and Wells, Wells thereby became primarily liable for the payment of said mortgages, and Tucker became his surety therefor, and the land became the primary fund out of which payment was to be made. It is clear, Wells failing to pay as he agreed, that Tucker could pay and be subrogated in equity to the mortgage security; but this is not the only effect of Wells's agreement. By it the two mortgages were consolidated and made one as to Wells and all persons claiming under him, and the burden of each was annexed to, and made to rest upon the whole land; and this, not because the lien of each was thereby actually extended over the whole land, but because of the contract itself, which equity takes cognisance of, and will enforce in favor of Tucker as against Wells and all persons standing in his stead.

The case of Welch v. Beers, 8 Allen 151, is full authority for this view, and was thus: Prescott held a mortgage for $500 on a whole tract of land, and had taken possession to foreclose. After the making of the mortgage, the mortgagor conveyed a part of the tract, with an agreement recited in the deed, that the grantee assumed and was to pay the whole of the mortgage as a part of the purchase-money. Afterwards the mortgagor conveyed the remainder of the tract to the plaintiff in fee, not covenanted against the mortgage, but with an express understanding that it was to be paid in full by the prior purchaser. Prescott subse

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quently took a new mortgage of the first part for $1200, with full knowledge of said agreement, and the value of that part was more than enough to pay the $500 mortgage. Held, that the plaintiff's part of the land was exempt from said last-mentioned mortgage, not because his deed of warranty left the whole burden of it to rest upon the other part, but because said agreement expressly annexed it to such part before the plaintiff purchased.

This is very analogous to the rule in equity, that when land subject to mortgage is sold by the mortgagor in separate parcels to different purchasers, without an assumption by them of any part of the mortgage debt, and the deeds are duly recorded, or actual notice is had of the state of the title and the subsisting equities, the purchasers, as between themselves, are charged, and must contribute in the inverse order of the time of their purchases. This rule rests upon the ground, that when a mortgagor sells a part of the mortgaged premises without reference to the incumbrance, it is right, as between him and the purchaser, that the part still held by him should be first applied to the payment of the debt, and so equity charges it with such payment. But this is not, as was said in Welch v. Beers, because a deed of warranty of part, of itself, directly creates a lien on the remainder for the whole amount of the mortgage, but because equity recognises the mortgagor's contract as binding on subsequent purchasers who take with notice thereof.

So here, it is right as between Tucker and Wells, that Wells should pay both mortgages before holding any part of the farm free from either; and a court of equity would not aid him, as against Tucker, to redeem one of them only, and thus enable him to hold an undivided half of the farm free from both, for this would be contrary to the spirit of his agreement, and he who seeks equity must do equity. And the complainants have no better right than Wells himself had, for they sit in his seat.

Decree affirmed and cause remanded.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF THE UNITED STATES.1

SUPREME COURT OF ILLINOIS.2

COURT OF ERRORS AND APPEALS OF MARYLAND,
SUPREME JUDICIAL COURT OF MASSACHUSETTS."

ADMIRALTY.

Practice-Amendment of Libel on Appeal to the Circuit Court-Collision-Evidence-Findings of Board of Local Inspectors-Where certain claims for damage were rejected by the District Court because not included in the original libel, held, that the Circuit Court on appeal could in its discretion permit libellants to file a supplemental and amended libel setting up such claims: The North Carolina, 15 Pet. 10, distinguished: The Charles Morgan, S. C. U. S., Oct. Term 1884.

The findings of the board of local inspectors, and the documents connected therewith, in a proceeding instituted under Rev. Stat., sect. 4450, for an investigation of the facts connected with a collision, so far as they had a bearing on the conduct of the licensed officers on board the boats, are inadmissible in a collision suit in admiralty when offered by the defendants as tending to affect the evidence offered by the libellants to show that their boat was in her proper position and had proper watches and lights set at the time of the collision: Id.

AGENT. See Bank; Common Carrier.

Contract-Association of Railroad Companies-Partnership-Contract by one Company, whether Binding on all-Rebate of FreightEvidence-Ratification.-Where a combination or association of three or four different railroad companies is formed for the transportation of freight and the transaction of the business of a common carrier, which is conducted by the general managers of each of the component companies, as in the case of a partnership, so long as one of the companies acts within the general scope of its powers in making contracts or performing other acts on behalf of the association, the association itself will be bound, although the particular company acting for it has exceeded its authority, as tested by its laws or articles of association: The Erie and Pacific Despatch v. Cecil, 112 Ill.

A contract of a railway company or association of such companies, made by its usual agents, with a shipper, to ship and carry a large quantity of grain at a reduced rate, which is five cents on the hundred pounds less than the customary rates but that the same should be billed at the regular rates then current and the freight paid at the latter rates, the difference in the two rates to be forthwith paid back to the shipper is valid and binding on the company or companies making the same: ld.

1 Prepared expressly for the American Law Register, from the original opinions filed during Oct. Term 1884. The cases will probably appear in 115 U. S. Rep. 2 From Hon. N. L. Freeman, Reporter; to appear in 112 Ill. Rep. 3 From J. Shaaff Stockett, Esq., Reporter; to appear in 63 Md. Rep.

* From John Lathrop, Esq., Reporter; to appear in 138 Mass. Rep.

In a suit against an association of railway companies on a contract made by a local agent of one of the companies, the defendant offered in evidence the articles of agreement between the several companies composing the association, for the purpose of showing a want of power in the local agents to make the contract: Held, that they were not admissible in evidence against the plaintiff, as the public could not be bound by them, or the rules and regulations they might contain: Id.

To prove the ratification of a special contract made by a station agent of a railway company in this state, which company, with others, constituted an association in the nature of a partnership, it appearing that the general manager of the same company approved such contract, the plaintiff offered in evidence three telegrams between the general manager of the railway company and the general manager of the association, showing that though the first had exceeded his orders, the latter would protect him: Held, that the telegrams were competent evidence on that question: Id.

Where the general manager of an association of railway companies has notice of the existence and terms of a special contract for transporting grain at a reduced rate, made by an agent of one of the associated companies, and afterward furnishes cars and transports the grain, this is evidence from which a ratification of the special contract may be found: ld.

ATTACHMENT. See Husband and Wife.

ATTORNEY.

Liability for Costs.-An attorney at law, who places his name under the words From the office of," on the back of a writ in favor of a resident of another state, is liable, as endorser, for costs: Morrill v. Lamson, 138 Mass.

If an attorney at law endorses a writ in favor of a resident of another state, he cannot set up in defence to a scire facias to enforce a judg ment for costs awarded against such party, that, in so doing, he violated a rule of the court, prohibiting an attorney from becoming bail or surety in any civil suit or proceeding in which he is employed as such attorney: Id.

BANK.

Certificate of Deposit-Principal and Agent-Notice-Subrogation. -S. S. deposited a sum of money in bank and received a certificate of deposit, setting forth the deposit of the money by him, and stating that the same was payable to the order of himself, or of E. S., on the return of the certificate. Before the money was withdrawn, S. S. died. After his death, E. S., who was his wife, presented the certificate, and drew from the bank the amount of the deposit: Held, 1st. That the certificate of deposit did not authorize the payment of the money to E. S. after the death of S. S. 2d. That notice to the paying-teller of the bank, of the death of S. S., received prior to the payment by him to E. S. of the amount of the deposit, was notice to the bank. 3d. That if he in making the payment, after such notice, mistook the law, the bank whose agent he was, must suffer the consequences: Second Nat. Bank v. Wrightson, 63 Md.