the doorway to an elevator shaft, opening into a hallway in an office building in a city, to remain open and unguarded. SOUTHERN BUILDING & LOAN ASSN. V. LAWSON, Tenn., 37 S. W. Rep. 86.

92. NEGLIGENCE - Railroads Contributory Negli. gence. An instruction that if deceased went upon a railroad track, after he saw a train approaching and could have avoided injury, for the purpose of saving his horse and buggy from being struck by the train, and in so doing was himself struck and killed there could be no recovery for his death, is a correct state. ment of the law.-MCMANAMEE V. MISSOURI PAC. RY. Co., Mo., 38 S. W. Rep. 119.

93. NEGOTIABLE INSTRUMENTS-Bona Fide Purchaser -Notice.-The corporate notes of defendant railroad company, executed in proper form by F, its president, and attested by its secretary, for the authorized purpose of purchasing supplies for defendant, were, by direction of F, made payable to his private clerk, indorsed by the payee to a firm of which F was a mem ber, and then, before maturity, taken by F to another State, and negotiated for the benefit of the firm; the purchaser paying value therefor, and having no actual knowledge of the wrongful diversion of the paper, though aware that F was the president of defendant: Held, that the purchaser had a right to assume that the notes were issued to the nominal payee, for value, in the regular course of business, and transferred to the firm in like manner, and he was not, therefore, chargeable with notice of F's fraudulent appropriation of the paper.-CHEEVER V. PITTSBUGH, S. & L. E. R. Co., N. Y., 44 N. E. Rep. 701.

94. NEGOTIABLE INSTRUMENT-Extension to Princi pal. Where the payee of a juint and several note, with knowledge of the fact that one of the makers is a surety only, after maturity of the note accepts from the principal payment of interest to a time in the future, however short, such acceptance amounts to an extension of the note, which releases the surety, unless made with his consent.-BANK OF BRITISH COLUMBIA V. JEFFS, Wash., 46 Pac. Rep. 247.

95. NEGOTIABLE INSTRUMENT-Notes-Guaranty.-On negotiating a note before maturity by the payee, a guaranty of payment waiving demand, etc., indorsed on the note, is an indorsement with an enlarged liabil ity.-DONNERNBERG V. OPPENHEIMER, Wash., 46 Pac. Rep. 254.

96. NOVATION-What Constitutes.-Where the purchaser of a stock of goods agrees to pay all outstanding indebtedness of the seller, and a creditor of the seller agrees "to present its account for goods" to the purchaser, there is no substitution, and the seller remains liable to such creditor.-RICHARDSON Drug Co. V. DUNAGAN, Colo., 46 Pac. Rep. 227.

97. PLEADING-Demurrer.-"It is a well-established rule of pleading, under the Code, as well as at com. mon law, that a judgment upon demurrer must be against the party whose pleading was first defective in substance, and that a demurrer searches the entire record, and must go against the first error."-WEST POINT WATER POWER & LAND IMP. Co. v. STATE, Neb., 67 N. W. Rep. 507.

98. PLEDGEE-Nature of Liability.-The pledgee of chattels to secure the payment of a debt is a bailee, and not the owner, of the property; and he is responsible as bailee after as well as before the maturity of the debt.-BUTLER V. GREENE, Neb., 68 N. W. Rep. 496.

99. PRINCIPAL AND SURETY-Contract of Suretyship.A surety is a favorite of the law, and has a right to stand upon the precise terms of his obligation; and when the terms used therein are not explicit the courts will place such a construction thereon as will uphold the evident understanding of the parties as to its force and effect at the time it was entered into.MERRIMACK RIVER SAV. BANK V. CURRY, Kan., 47 Pac. Rep. 204.

100. PRINCIPAL AND AGENT-Disaffirmance.-A principal must disaffirm the unauthorized act of his agent

within a reasonable time after such act comes to his knowledge, or he will be bound thereby.-FARMERS' & MERCHANTS' BANK OF ELK CREEK V. FARMERS' & MERCHANTS' NAT. BANK OF AUBURN, Neb., 68 N. W. Rep. 488.

101. PROXIMATE CAUSE.-The negligence of a railway company in blocking a street crossing with its train for an unreasonable length of time is not the proxi. mate cause of injuries received by a pedestrian from a fall caused by a defect in the street while making a detour to pass around the train.-ENOCHS V. PITTSBURGH, C. C. & ST. L. RY. Co., Ind., 44 N. E. Rep. 658.

102. RAILROAD COMPANIES-Accident at Crossing.It is now settled that it is not necessary to leave it to the jury whether à prudent man would look and listen before attempting to cross a railroad track, and it is the duty of the court to declare that a failure to look and listen is negligence.-PYLE V. CLARK, U. S. C. C. 'Utah), 75 Fed. Rep. 644.

103. RAILROAD COMPANY-Duty to Fence.-Railroad companies are not absolved from complying with the express terms of the statute requiring them to inclose their roads with a good fence, except where some paramount interest of the public intervenes, or some paramount obligation or duty to the public rests upon them, rendering it improper for them to fence.-CHICAGO, R. I. & P. Ry. Co. v. GREEN, Kan., 46 Pac. Rep. 200.

104. RAILROAD COMPANY-Eminent Domain-Obstruction of Street.-When a railroad switch is constructed upon a street for the purpose of running cars to a saw. mill operated by defendant, defendant is liable for the damages to property owners from the construction of the switch, though it has nothing to do with the running of the trains over it.-PATTON V. OLYMPIA DOOP & LUMBER CO., Wash., 46 Pac. Rep. 237.

105. RAILROAD COMPANY-Liability for Killing Stock. -The failure of a railroad company to fence its track at a place where it could be fenced does not make it liable for killing stock within the limits of territory where stock is prohibited from running at large, un. less the negligence of the company was the cause of the accident.-EVANS V. SHERMAN, S. & S. RY. Co., Tex.,137 S. W. Rep. 93.

106. RAILROAD COMPANY Principal and Agents.A purchaser of a ticket from a ticket agent at a union depot, selling tickets furnished by defendant railroad company and accepted by it, is, in the absence of a showing that he neglected other reasonable means of information, entitled to rely on the agent's statements as to the time of arrival of the train at his point of destination.-TURNER V. GREAT NORTHERN RY. Co.. Wash., 46 Pac. Rep. 243.

107. RAILROAD COMPANY-Street Railroads.-A street railway has not exclusive rights to the use of its tracks and ground covered by it, and is constructed and operated on the theory that it is not an additional burden on the highway, but is merely an additional use contemplated when the street was laid out. This necessitates a liberal construction in favor of the rights of the puble, and the law is averse to concede any exclu. sive rights to the portion of the street to railway companies, except where the necessities of the case demand.-EDGERTON V. O'NEILL, Kan., 46 Pac. Rep. 206.

108. RAILROADS-Fire Set by Locomotive.-There is no liability on, the part of a railroad company to pay to an insurance company the value of property which was destroyed by a fire set out by said railroad company, and which the insurance company was required to pay to the owner by virtue of a certain contract of insurance, when the fire is shown to have been accidental.-HOME INS. Co. v. ATCHISON, T. & S. F. R. Co., Kan., 46 Pac. Rep. 179.

109. REPLEVIN - Defense Damages. In replevin against an officer who has levied on the property in question under an execution against a third person, defendant may set up as a defense that since the com

mencement of the action a landlord's lien has been established against it and the property taken from him to satisfy such lien; and this though plaintiff was not a party to the landlord's attachment.-NEEB V. MCMIL LAN, Iowa, 68 N. W. Rep. 439.

110. SALE-Conditional Sale Remedy of Vendor.The seller of personalty, who reserved the title, could, after obtaining a judgment against the buyer for the price, and collecting a portion of the same nevertheless, without canceling the judgment or paying or tenddering back what had been received, maintain against the buyer an action of bail trover for the purpose of collecting the balance of the purchase money, with interest thereon.-JONES V. SNIDER, Ga., 25 S. E. Rep. 668.

111. STATUTE OF FRAUDS - Who may Plead. - A person who, by a parol contract, is to receive a conveyance from another, cannot plead the invalidity of the contract under the statute of frauds, when the other offers to perform.-TAYLOR V. RUSSELL, N. Car., 25 S. E. Rep. 710.

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112. TAXATION Sale for Taxes Redemption' by Married Woman.-The right given a married woman by Gen. St. ch. 92, art. 9, § 21, to redeem, within five years of notice of purchase, her land sold for taxes, and the question of title to the land, is not affected by a judgment merely for possession of land obtained by the purchaser at tax sale in an action against the married woman.-ANDERSON V. BATSON, Ky., 37 S. W. Rep. 84.

113. TAXATION-Succession Tax-Bonds and Stocks.Bonds of a local corporation, kept at the residence of a non-resident owner, are not within Laws 1892, ch. 399, imposing a tax on the transfer by will of "property within the State," though testator be a non-resident.IN RE BRONSON, N. Y., 44 N. E. Rep. 707.

114. QUO WARRANTO Municipal Corporation. - An information in the nature of quo warranto, and not a bill for injunction, is the appropriate remedy to test the legal existence of a municipal corporation.-Os. BORNE V. VILLAGE OF OAKLAND, Neb., 68 N. W. Rep. 506.

Execution. Where

115. VENDOR AND PURCHASER the vendor of land who retained the title obtained against the vendee a judgment for a balance of the purchase money, and had the land levied on and sold under an execution issued upon such judgment, without first filing and having recorded a deed conveying the land to the vendee, the sale was void; and one who bid off the land could not be compelled to pay the amount of his bid, and accept the sheriff's deed to the property.-MCCORD V. MCGINTY, Ga., 25 S. E..Rep. 667.

116. VENDOR AND PURCHASER-Who is Purchaser.Defendant agreed to furnish to a broker a certain amount of money, to be used in the purchase of a mine, which was to be conveyed to a corporation to be formed, in which defendant was to have a certain share of the stock; the money advanced to be repaid him from the profits. The broker purchased the mine in accordance with the agreement, making a cash payment thereon, which was furnished by defendant, and executing his own note for a deferred payment, defendant not being known in the transaction with the seller: Held, that the broker, and not defendant, was the purchaser, and that defendant could not be held liable on the note, as an undisclosed principal.KROHN V. LAMBETH, Cal., 46 Pac. Rep. 164.

117. WATERS - Riparian Owners. A railroad company, under authority from the State, constructed its bridge across the inlet of a navigable river, over land owned by the State, in such a way that the riparian owners above the inlet had reasonable means of access to the channel of the river, for boats which the inlet in its natural state would float: Held, that the bridge was not an illegal obstruction, as regards a riparian owner desiring to secure access to the river channel by an artificial channel for use by large boats, so as to entitle such owner to damages for such obstruction.

-HEDGES V. WEST SHORE R. Co., N. Y. 44 N. E. Rep. 691.

118. WATER Surface Water-Damages.-In an ac tion of damages alleged to have been caused by the drainage of surface water from a pond on defendant's land into a draw, by which said water was conducted to and across the land of plaintiff, an admission by plaintiff that the draw was a natural water way, and had, since his ownership of the land claimed to have been damaged, been such a water way, and that the water generally from that portion of the country had flowed through this ravine, precluded the possibility of a recovery of damages for the destruction of the grass in the bed of such draw on his premises, caused by the additional flowage resulting from the aforesaid drainage.-RATH V. ZIMBLEMAN, Neb., 68 N. W. Rep.

488.

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119. WILL Devise in Lieu of Dower - Election.Where a life estate in land is devised to the widow in lieu of her one-third interest in fee, the fact that she, having knowledge of the provision of the will, took possession of the lands, leased the same from year to year for 10 years, receiving the entire rent, one of the leases being written, and that she stated that she had a life estate in the land, shows an election on her part to take under the will, which will prevent a subse quent election to take under the law. -WILSON V. WILSON, Ind., 44 N. E. Rep. 665.

120. WILLS Contest. In a suit to set aside a will on the ground of mental incapacity, proof that testator was a monomaniac does not require defend. ant to show by a preponderance of the evidence that the monomania did not affect the execution of the will, and that testator in fact possessed test amentary capacity. He is only required to adduce sufficient evidence to prevent the preponderance from being in favor of plaintiff.-YOUNG V. MILLER, Ind., 44 N. E. Rep. 757.

121. WILLS-Failure to Name or Provide for Child.Specific bequests, by name, to the minor children of testator's adopted daughter, with whom they live, is a sufficient naming of or providing for the daughter to prevent the operation of Rev. St. 1889, § 8877, declaring that a testator shall be deemed to have died intestate as to children not named or provided for in the will. The object of Rev. St. 1889, § 8877, providing that a testator shall be deemed to have died intestate as to children not named or provided for in the will, was to produce intestacy only when a child is unknown or forgotten, and thus unintentionally omitted.-WOODS V. DRAKE, Mo., 87 S. W. Rep. 109.

122. WILLS-Nature of Estate.-Testator gave all his estate to his wife "absolutely, and to the use of her own interest and benefit during her natural life," and enumerated his personal property and real estate. He further gave his wife "whatsoever of both persona! and real estate of which I may die seised or have sufficient and legal title, and not herein before enumerated," and declared that it was his will that if, at the death of his wife, there should be any personal or real estate, to be divided among his blood relations, four nieces named should each receive $5, and a nephew named $50; that the residue, if any, should be equally divided between the legal heirs of a brother and the nephew named; and that he empowered his wife to dispose of all the real and personal estate as she might think best: Held, that the wife took a life estate only with power of disposal.-EVANS v. FOLKS, Mo., 37 S. W. Rep. 126.

123. WILLS — Trustees. Testator gave to his "said executors" all his property, "in trust, nevertheless," for certain uses, and then directed a sale of the prop erty and division among certain beneficiaries. One of the executors appointed was a non-resident, who, by statute, was incompetent to act as an executor, and part of the property was held by testator as trustee: Held, that the executors held the property as trustees. and not as executors.-SMITH V. SMITH, Wash., 46 Pac. Rep. 249.

Central Law Journal.

ST. LOUIS, MO., NOVEMBER 20, 1896.

On

A constitutional question seems to have been involved in an ordinary action for damages for wrongful ejection from a street car in Georgia. The case is Atlanta Consolidated Street Ry. Co. v. Keeny, 25 S. E. Rep. 629. It seems that a passenger on a street railway car tendered to the conductor, in payment of his fare, a half dollar coined in 1824. The coin was somewhat rare and of somewhat different appearance from coins of the same denomination of later dates. It was in fact a genuine coin of the United States, but the conductor pronounced it a counterfeit and ejected the passenger. appeal it was contended, on the part of the railway company, that if the coin tendered, though genuine, was so rare or of such appearance as to make it doubtful whether it was genuine the conductor had a right to refuse it if he really believed it was not genuine. But the court, very properly overruled the contention, holding that a genuine silver coin of the United States, though somewhat rare and unlike those in common use, is nevertheless a legal tender for car fare, and a passenger ejected for refusal to make payment otherwise than by tendering such a coin is entitled to an action for damages, and that the fact that the conductor declined to receive a coin of this character because he, in good faith, believed it was a counterfeit, will not relieve the railroad company from liability. The court cited no authorities but the case of Railroad Co. v. Morgan, 18 Atl. Rep. 904, 52 N. J. Law, 60, is in point. See also the more recent cases of Jersey City & B. R. Co. v. Morgan, 16 S. C. Rep. 276, 42 Cent. L. J. 67, wherein the Supreme Court of the United States held that tender of a silver coin cannot be refused by reason of abrasion.

The New York Law Journal finds an "American Tichborne Case" in the late decision of Flora v. Anderson, 75 Fed. Rep. 217, by the Circuit Court of the United States for the Southern District of Ohio. An examination of that case undoubtedly recalls some of the features of the celebrated Tichborne Case, which turned on the question of the identity of one claiming to be the

"missing heir" to the Tichborne estate. It will be recalled that the "claimant" after a long struggle in the English courts was declared to be an impostor. In the American case alluded to, it became necessary, in order to establish plaintiff's claim to an estate, to show that he was the illegitimate and concealed child of a deceased lady, the possibility of the existence of such claim never having been admitted in any way by the testator or on behalf of the estate. It appeared that by the will and codicil of one Nicholas Longworth, proved in Ohio in 1863, a certain portion of the testator's estate was bequeathed in trust for the benefit of a daughter of testator, during her life, with remainder to "the issue of her body surviving her," and, in default of such issue, there was a devise over of the remainder. The daughter married, but died in 1891, without issue of her marriage. The law of Ohio permits bastard children to inherit or transmit inheritance on the part of their mothers, and the contention of the complaint involved establishing, first, as matter of the fact, that daughter, and second, as matter of law, that, he was an illegitimate son of the testator's if he was a child of the lady, he would be entitled to the estate and remainder under the Ohio statute law above referred to. Incidentally the court held that, even if the complainant had been what he pretended to be, the provision of the Ohio Statute of Descent would not have entitled him to take a remainder created under such circumstances. The main point of the case, however, was in the controversy regarding the facts. There was evidence to show that the testator's daughter gave birth to an illegitimate son who was complainant, and that complainant was spirited away and the fact of his birth concealed in order to avoid family disgrace. The testimony on both sides was very voluminous, but the conclusion arrived at by the court was that the lady in question never gave birth to the alleged child, and that the claim was fabricated and baseless. The New York Law Journal makes these pertinent remarks on the subject of the case. "It is notorious that groundless testamentary contests, and the making of spurious and unconscionable claims have attended a large proportion of the settlements of great private estates in America during recent years. Where per

jury has been committed the courts and the bar should use whatever legitimate influence they possess towards procuring vigorous prosecution of the culprits. It certainly had a most salutary moral effect that in England the Tichborne pretender suffered criminal penalties. In the Ohio case (supra), the claimant himself, of course, did not attempt to give direct testimony as to the circumstances of his birth, and the evidence mainly relied on to establish identity did not purport to be anything more than hearsay. Evidence of declarations of various persons was admitted on the ground that the matter in issue was one of pedigree. Much of this testimony was held to be incompetent because the alleged deceased declarations would not have been sufficiently closely related to the alleged bastard, even admitting that such a person ever existed, and also on the ground that the rule permitting hearsay is limited to cases where a legitimate relationship is claimed, and cannot be invoked to establish an unlawful relationship. The testimony of one of the witnesses was pronounced by the court to be willfully perjured, and that of others conclusively disproved by comparison with admitted facts. It is possible that the claimant believed in his own case. A letter written by him and introduced in evidence shows him to be very illiterate, and it would be quite easy for a man of his grade of intelligence to put implicit faith in the vague rumors which he was able to unearth as to his parentage and in representations as to the identity of persons with whom he alleged he had interviews many years ago. Under the circumstances, it is a source of public congratulation that the family attacked stood the suit, although it involved a controversy to the last degree distasteful to people of respectability. Outside.of the fear of criminal punishment, nothing tends more to discourage groundless litigations than uncompromising refusal to buy peace."

NOTES OF RECENT DECISIONS.

MORTGAGE ASSUMPTION BY GRANTEE.The Court of Appeals of Kansas decides in Morris v. Mix, 46 Pac. Rep. 58, that the liability of a grantee who assumes the payment of a mortgage on land conveyed to him

depends upon the personal liability of his immediate grantor. If the grantor is not so liable, the mortgagee cannot claim any deficiency from such grantee. Upon the law of the case the court says:

The principal question in this case is as to the liability of Jenkin W. Morris upon the assumption clause in this deed. In other words, can a mortgagee avail himself of an assumption to pay his mortgage, contained in a deed to an intermediate purchaser, unless the purchaser's grantor was personally liable to pay the debt? Robinson is the immediate grantor of Morris. From whom or upon what conditions he obtained title is not shown. It is not alleged that Robinson assumed this mortgage, or was under any obligation to pay the same, or had any interest, legal or otherwise, in having Swisher's covenant performed. We think the liability of the grantee results from an application-or, more correctly, an extension-of the equitable doctrine of subrogation, and the authorities with great uniformity hold "that the assuming grantee becomes the principal debtor, and the mortgagor becomes the surety, and the mortgagee is entitled, if at all, under the principle of equity that 'A creditor is entitled to the benefit of all collateral obligations for the payment of the debt which a person standing in the situation of a surety for others has received for his indemnity.'" Does not, then, the liability of the grantee to the mortgagee depend upon the fact that his immediate grantor is also personally liable? We think so, since there will be no place for the operation of subrogation in the absence of such personal liability of the grantor. And from a careful and very extended examination of the adjudicated cases we are irresistibly led to the conclusion that the liability of a grantee who assumes the payment of a mortgage on land conveyed to him depends upon the personal liability of his immediate grantor. Therefore, if a grantor is not so liable, the mortgagee cannot claim any deficiency from such grantee. "A mortgagee cannot avail himself of an assumption to pay his mortgage, contained in a deed to a subsequent purchaser, unless the grantor was himself personally liable to pay the debt. It therefore not appearing that there has ever existed any obligation on the part of De Hart to indemnify Pflaum against the mortgage debt, each grantee who assumed the payment of the mortgage was bound thereby only to indemnify; and, if no liability to pay the mortgage debt existed on the part of the immediate grantor, there was no ground for claim of indemnity on the part of the grantor, and, consequently, no personal liability on the part of the grantee to pay the mortgage debt." Norwood v. De Hart, 30 N. J. Eq. 412. “An action brought by the holder of certain premises, liable under a provision, contained in a deed thereto to him, that he purchased the same subject to two certain mortgages, and his agreement therein contained to assume and pay the same as part of the consideration and purchase price of said premises, cannot be maintained, unless it is alleged and proved that the grantors of said owner were in some way liable to pay the plaintiff therein, or his assignors, the debt secured by the mortgages, or, at least, they had a legal interest in having the covenant in such deed performed." Carrier v. Paper Co., 73 Hun, 287, 26 N. Y. Supp. 414. This question has also been discussed by Mr. Desty in his notes to King v. Whitely, 10 Paige, 465 (4 Lawy. Ed. N. Y. Ch. p. 1052), and he states the doctrine to be: "Where the grantor of an equity of redemption in mortgaged

premises is not personally holden for the debt, and the covenants from him contained covenants of seisin and warranty, and a statement that the premises are subject to the mortgage the payment of which is assumed by the grantee, the latter is not liable personally for the mortgage debt, or any part thereof. The assumption of the mortgage debt by the subsequent purchaser will not in any case be available to the mortgagee, unless the grantor was himself personally liable for the payment of the mortgage debt. Unless the grantor is personally liable for the debt, the promise of the grantee, the purchaser, is held to be a mere nudum pactum, and, of course, without efficacy in favor of either the grantor or mortgagee. The mortgagee cannot look to the grantee personally at all, because the assumption is but an indemnity, and, the grantor not being liable, the indemnity is practically a nullity. To make the promise of a grantee to pay the mortgage available to the mortgagee of the land conveyed to him, it must be made to a person personally liable for the mortgage debt. Where a grantor of an equity of redemption in mortgaged premises is not personally liable to pay the mortgage debt, and has no legal or equitable interest in such payment, except so far as the mortgage may be a charge on the land mortgaged, his grantee thereof incurs no liability to the holder of the mortgage by reason of the covenant on his part contained in the deed to assume and pay the mortgage,"-citing Trotter v. Hughes, 12 N. Y. 80; Vrooman v. Turner, 69 N. Y. 280; Cashman v. Henry, 5 Abb. N. C. 232; Biddel v. Brizzolara, 64 Cal. 361, 30 Pac. Rep. 609; Crowell v. St. Barnabas Hospital, 27 N. J. Eq. 656; Crowell v. Currier, 27 N. J. Eq. 155; Norwood v. De Hart, 30 N. J. Eq. 414; Mount v. Van Ness, 33 N. J. Eq. 265; Wise v. Fuller, 29 N. J. Eq. 266; Birke v. Abbott, 103 Ind. 1,1 N. E. Rep. 485; Huyler v. Atwood, 26 N. J. Eq. 505.

In the State of New York this question has arisen in almost every conceivable form, and the more it has been discussed the clearer have the courts become in their statements of it. In Carter v. Holahan, 92 N. Y. 504, the court said: "The only ground upon which a liability has been sustained between others than the immediate parties to such contract is that growing out of the relation of principal and surety, whereby one becomes entitled to the benefit of any security received by the other from a party primarily liable for the payment of the debt. Drake never having been personally liable for the payment of any part of the mortgage debt, the covenant taken by him from Kerr did not inure to the benefit of his grantor, or to that of the holder of the mortgage. Should a grantee who assumes the payment of a mortgage convey to a third person, taking a similar covenant for his indemnity against the obligation assumed by him, his grantor would be entitled to the benefit of that contract. If a break, however, occurs in the chain of successive covenants, its foundation is destroyed." And this doctrine has been asserted in Thayer v. Marsh, 75 N. Y. 340; Dunning v. Leavitt, 85 N. Y. 50; Wilbur v. Warren, 104 N. Y. 192, 10 N. E. Rep. 263; Lorillard v. Clyde, 122 N. Y. 504, 25 N. E. Rep. 917; Wager v. Link, 134 N. Y. 125, 31 N. E. Rep. 213; Durnherr v. Rau, 135 N. Y. 219, 32 N. E. Rep. 49. Also, in Minnesota. Nelson v. Rodgers (Minn.), 49 N. W. Rep. 526; Brown v. Stillman, 43 Minn. 126, 45 N. W. Rep. 2; also, in Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. Rep. 494. In New Jersey this question has frequently been before the courts, and thoroughly considered, as shown by cases before cited. In Mount v. Van Ness, 38 N. J. Eq. 265, the court used the following lan

guage: "If the grantor is not personally liable for the mortgage debt, the mortgagee cannot look to the grantee personally at all, because the assumption is but an indemnity, and, the grantor not being liable, the indemnity is practically a mere nullity. Nor does the fact that the grantee obtained the benefit of the mortgages, by having the amount allowed to him as part of the purchase money, make any difference. The purchase money was payable to his grantor, and the assumption is to him, and in his favor." This doctrine obtains in Virginia. "In such cases the mortgagee does not acquire a right of action against the assuming purchaser, but the benefit flowing to him from the contract is limited to a right to be subrogated to the rights of the debtor. His right is simply a right of substitution, subject, however, to the equities between the purchaser and his immediate grantor." Osborne v. Cabell, 77 Va. 452; Willard v. Worsham, 76 Va. 392. An assuming vendee of mortgaged premises is yet not liable to the holder of the mortgage, if his immediate grantor is not personally liable, also, upon the ground that an assumption is a mere indemnity, not made for the benefit, primarily, of the holder of the mortgage, before the indemnity of the immediate vendor, and the benefit flowing to the holder of the mortgage from the contract is only a right to be subrogated or substituted to the right of the immediate grantor, and that there is no consideration for anything further than a mere indemnity. Mellen v. Whipple, 1 Gray, 317.

But it is contended that "a person for whose benefit a promise to another upon sufficient consideration is made may maintain an action in his own name against his promisor." This is undoubtedly the doctrine in Kansas, and it is also the law in most of the States. And it might not be out of place at this point to state that in Pennsylvania, one of the new States which holds that a person assuming the payment of a mortgage is liable, even though his vendor is not personally liable to pay the same, a third party for whose benefit one has made a promise to another on adequate consideration cannot sue thereon in his own name, while in New York he can. In Dunning v. Leavitt, 85 N. Y. 30, this proposition was specially pressed upon the court; that the party was liable to such vendee for the reason that a third party can maintain an action for and upon a promise made to still another party for the benefit of the third party. The court says: "It is said that the action can be sustained upon the doctrine of Lawrence v. Fox, 20 N. Y. 268, and kindred cases; but I know of no authority to separate the proposition that a person not a party to the promise, but for whose benefit the promise is made, can maintain an action to enforce the promise, where the promise is void as between the promisor and the promisee for fraud, or want of consideration, or failure of consideration. It would be strange, I think, if such an adjudication could be found. The party suing upon the promise, in cases like Lawrence v. Fox, is in truth asserting a derivative right." In Vrooman v. Turner, 69 N. Y. 280, it was held that "an assumption clause in a deed did not give a right of action to the mortgagee where the grantor was not himself liable to pay the mortgage debt, although in that case there was ample consideration for the promise of the defendant. There are limitations upon this rule, or, rather, the rule is not so far extended as to give a third person who has only an indirect and incidental benefit by the contract the right to sue upon it." In the case of Simpson v. Brown, 68 N. Y. 355, et seq., the following language is used: "It is not every promise made by one to an