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secure the discount of his own note, and have the deposit snatched at by the bank, if the note be not paid, or attached by a creditor as the depositor's individual property. *No matter what he intends to do, or what the cashier or clerk may think he is doing, the deposit must wear the impress of the trust, or he cannot, when brought to account, call it trust property." See Baskin v. Baskin, 4 Lansing, 90.

Following in the line of the English cases, it was held in Jenkins v. Walter, 8 Gill & J. 218, that where a guardian had received a sum of money belonging to his ward, and on the day of its receipt had deposited it in a banking institution, then in good credit, but which subsequently failed, and taken a certificate therefor payable to himself or order, the loss resulting from the failure of the bank should fall upon him, though on the day of the deposit, by indorsement on the certificate, he declared it to be the property of his ward, and placed in bank for his benefit." So, Mr. Perry, on the strength of some of the English cases cited, says: "If money is to be transmitted to a distant place, a trustee may do so through the medium of a responsible bank, or he may take bills from persons of undoubted credit, payable at the place where the money is to be sent; but the bills must be taken to him as trustee. If he neglects these precautions he will be responsible for any loss." Section 406.

It is true that in some of the cases cited the trustee had at the time of making the deposit a credit to his individual account at the bank, and such deposit was credited to him individually in the same account. But the test is not so much the keeping of a separate account at the bank, as it is the parting with, and hence the losing of, the identity of the trust fund, and having in lieu thereof no obligation, contract, or account upon which is impressed the equitable ownership of the trust. Had this administrator retained these moneys in his own possession, and mingled them with his own funds so as to lose their identity, and the whole had been lost without his fault, yet we apprehend he would have been liable. Shoemaker v. Hinze, 10 N. W. Rep. 86. Here the fact that he delivered the moneys to the bank, and thus allowed them to be mingled with other funds, destroyed their identity as completely as though he had first mingled them with an equal amount of his own moneys, and then deposited the whole in bulk. The deposit therefore put an end to the identity of the funds deposited, and the certificate was simply an agreement, taken in exchange for the money, to repay a like amount in currency upon the conditions named. Beyond question the certificate was negotiable. Klauber v. Biggerstaff, 47 Wis. 551. To all appearances it was the individual property of the depositor, and not of the estate which he represented, and there was nothing on the books of the bank to indicate the contrary. It stood therefore precisely the same as though he had loaned the money to an individual at the time supposed to be responsible, and taken his negotiable note therefor without interest, payable on demand "in currency" to the order of himself. The making of the deposit, and taking the certificate to himself individually, was therefore not only an extinguishment of the identity of the money, but an appropriation of it, in law, to his own personal use. This being so, shall the rule be established by this court that administrators executors, trustees, and guardians may insist upon settling their accounts by tendering such notes or certificates in lieu of cash, however worthless may be the makers or the bank at the time of settlement? The question is important, and the answer vast in its consequences. To hold the administrator auswerable in this case is undoubtedly a great hardship, but to exonerate him from liability is to encourage the mismanagement

of trust funds, and to open the door to frauds inumerable against those whose age and weakness entitle them to the most rigid protection of the law. The rule therefore should not be slackened, even if the question were a new one, much less in view of the authorities cited. It may be said that the remarks of Mr. Justice Paine in School-district v. Zink, 25 Wis. 636, to the effect that the mere substitution of a certificate of deposit payable to the holder of a check on a bank for the check itself, worked no change whatever in the status or title to the fund in bank, are inconsistent with the view we have taken of this case; but in so far as that opinion is in conflict with this decision, it must be regarded as overruled.

For the reasons given, the judgment of the Circuit Court is affirmed.

INDICTMENT FOR FORGING UNITED STATES SECURITIES.

SUPREME COURT OF THE UNITED STATES, APRIL 24, 1882.

UNITED STATES V. CARLL.

An indictment on section 5431 of the Revised Statutes, alleging in the words of the statute, that the defendant feloniously, and with intent to defraud, did pass, utter and publish a falsely made, forged, counterfeited and altered obligation of the United States, but not further alleging that the defendant knew it to be false, forged, counterfeited, and altered, is insufficient, even after verdict.

ON

Na certificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of New York.

This was an indictment found in the Circuit Court on section 5431 of the Revised Statutes, by which it is enacted that "every person who, with intent to defraud, passes, utters, publishes or sells any falsely made, forged, counterfeited or altered obligation or other security of the United States, shall be punished by a fine of not more than five thousand dollars, and by imprisonment at hard labor not more than fifteen years."

Each count of the indictment alleged that the defendant at a certain time and place, "feloniously, and with intent to defraud the Bank of the Metropolis, which said bank is a corporation organized under the laws of the State of New York, did pass, utter and publish upon and to the said Bank of the Metropolis, a falsely made, forged, counterfeited and altered obligation and security of the United States," (which was set forth according to its tenor) against the peace, and contrary to the form of the statute.

The defendant having been tried before Judge Benedict, and convicted by the jury under instructions which required them to be satisfied of the facts alleged, and that the defendant at the time of uttering the obligations knew them to be false, forged, counterfeited and altered, moved in arrest of judgment for the insufficiency of the indictment. At the hearing of this motion before Judge Blatchford and Judge Benedict, they were divided in opinion upon the question, stated in various forms in their certificate, but in substance this: Whether the indictment setting forth the offense in the language of the statute, without further alleging that the defendant knew the instruments to be false, forged, counterfeited and altered, was sufficient after verdict to warrant judgment thereon.

GRAY, J. In an indictment upon a statute it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact

that the statute in question read in the light of the common law, aud of other statutes on the like matter, enables the court to infer the intent of the Legislature does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent. United States v. Cruikshank, 92 U. S. 542; United States v. Simmons, 96 id. 360; Commonwealth v. Clifford, 8 Cush. 215; Commonwealth v. Bean, 11 id. 414; Commonwealth v. Bean, 14 Gray, 52; Commonwealth v. Filburn, 119 Mass. 297.

The language of the statute on which this indictment is founded includes the case of every person who with intent to defraud utters any forged obligation of the United States. But the offense at which it is aimed is similar to the common-law offense of uttering a forged or counterfeit bill. In this case, as in that, knowledge that the instrument is forged and counterfeited is essential to make out the crime; and an uttering, with intent to defraud, of an instrument in fact counterfeit, but supposed by the defendant to be genuine, though within the words of the statute, would not be within its meaning and object.

This indictment by omitting the allegation contained in the indictment in United States v. Howell, 11 Wall. 432, and in all approved precedents, that the defendant kuew the instrument which he uttered to be false, forged and counterfeit, fails to charge him with any crime. The omission is of matter of substance, and not a "defect or imperfection in matter of form only," within the meaning of section 1025 of the Revised Statutes. By the settled rules of criminal pleading, and the authorities above cited, therefore the question of the sufficiency of the indictment must be

Answered in the negative.

UNITED STATES SUPREME COURT ABSTRACT.

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FRAUD -IN MORTGAGING PROPERTY REPRESENTATION AS TO PROSPECTIVE VALUE.- Plaintiff loaned G. a sum of money to open and work quarries, upon an estimate of probable value by W. & F., residents of the neighborhood of the lands where the quarries were, which lands were taken by plaintiff as security for the loan. The certificate of estimate stated the lands to be" in the best judgment" of W.& F. worth the value stated. Held, that even if the lands proved to be of much less value, that was no ground for an action for fraud against G., W. & F. for a misrepresentation as to the value of the security. The law does not hold one responsible for the extravagant notions he may entertain of the value of property, dependent upon its future successful exploitation, or the result of future enterprises; nor for expressing them to one acquainted with its general character and condition. A statement of an opinion assigning a certain value to property like a mine or a quarry not yet opened is not to be pronounced fraudulent because the property upon subsequent development may prove to be worthless; nor is it to be pronounced honest because the property may turn out of much higher value. See Holbrook v. Connor, 60 Me. 578. Whenever property of any kind depends for its value upon contingencies which may never occur, or developments which may never be made, opinion as to its value must necessarily be more or less of a speculative character; and no action will lie for its expression, however fallacious it may prove, or whatever the injury a reliance upon it may produce. The determination of its truth or falsity, until the contingency occurs or becomes impossible, would lead the court into investigations for which they have no fixed rules to guide their own judgments or to instruct juries. Judgment of U. S.

Circ. Ct., N. D. New York, reversed. Gordon v. Butler. Opinion by Field J. [Decided May 1, 1882.]

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JURISDICTION-OF FEDERAL CIRCUIT COURT-ACTION FOR SPECIFIC PERFORMANCE- STATUTORY CONSTRUCTION-U. S. R. S., § 629 - PLEADING.-(1) A suit for the specific performance of contracts for the sale of lands, entered into by a county with plaintiff's assignors, to enforce them, to realize the fruits of the rights secured by them to the purchasers, and to reinstate the plaintiff in the position which he is entitled to occupy under the contracts as assignee thereof, notwithstanding any acts done by the county or its officers in impairment of the rights acquired by the contracts, held to be one to recover the contents of a chose in action under U. S. R. S., § 629, which provides that no Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recoverthe said contents if no assignment had been made, except in case of foreign bills of exchange." Such a suit must be regarded as one to recover the contents of the contracts. The contents of a contract, as a chose in action, in the sense of section 629, are the rights created by it in favor of a party in whose behalf stipulations are made in it which he has a right to enforce in a suit founded on the contract; and a suit to enforce such stipulations is a suit to recover such contents. The promise to pay money, contained in a promissory note, is all that there is of the note. A suit to enforce the payment of the money is a suit to recover the contents of the note, because there is nothing contained in the note but the promise. The promise to receive the money stipulated in these contracts to be paid by the purchasers, as a foundation for their right to receive patents, is, so far as this suit is concerned, the essence of the contracts; and asuit tocompel the acceptance of that money is a suit to enforce such promise, and therefore is a suit to recoverthe contents of the contracts. This principle was settled in the early case of Sere v. Pitot, 6 Cranch, 332, under section 11 of the judiciary act of 1789, which is re-enacted in section 629 of the Revised Statutes. There the plaintiffs were the general assignees of the effects of an insolvent debtor, by operation of law. It was contended that the statute applied only to a voluntary assignment of a particular chose in action, and that the word contents" did not apply to accounts or unliquidated claims, but was confined to transferable paper. But the court held that the statute intended to except suits in virtue of equitable assignments, as well as suits in virtue of legal assignments, and to exclude from the Federal courts the assignee of all the open accounts of a merchaut, as well as the same person when the assignee of a particular note. The court say: "The term other chose in action' is broad enough to comprehend either case, and the word 'contents' is too ambiguous in its import to restrain that general term. The 'contents' of anote are the sum it shows to be due, and the same may, without much violence to language, be said of an account." Following out this principle, the obligation or the promise contained in a contract is its contents, when a suit is brought to enforce such obligation; and it does no violence to language to say that the suit is one to recover such contents. In Deshler v. Dodge, 16 How., 622, 631, it is said by the court, that the statute in question applies to cases "in which the suit is brought to recover the contents or to enforce the contract contained in the instrument assigned;" and that where the suit is brought to enforce the contract contained in the chose of action, the assignee is disabled, unless the suit might have been brought in the court if no assignment had been made. Again, in Bushnell v. Kennedy, 9 Wall, 387, it is suggested by

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the court that the restriction applies to rights of action founded on contracts which contain within themselves some promise or duty to be performed, and that such contracts may be properly said to have contents. (2) The amended bill in this case contains no averment showing that the suit could have been maintained by the assignors of the contracts if no assignments had been made; and it is well settled that this is necessary. Turner v. Bank of North America, 4 Dall. 8; Mollan v. Torrance, 9 Wheat. 537; Bank of United States v. Moss, 6 How. 31; Bradley v. Rhines' Admrs., 8 Wall. 393. Decree of U. S. Circ. Ct., Iowa, affirmed. Corbin v. County of Black Hawk. Opinion by Blatchford, J. [Decided April 24, 1882.]

REDEMPTION - UNDER DECREE OF FORECLOSURE— MUST BE IN TIME.- A bill was filed by one claiming the right of the equity of redemption, asking the reversal of so much of a decree of foreclosure and sale of mortgaged property in Illinois as denied the statutory right of redemption. The bill did not ask the reversal of the order of sale, or that a new sale be had; nor did the complainant offer to redeem by paying the amount due on the mortgage, or make any teuder in court. Besides, the time allowed by statute for redemption had passed when the bill was fled. Held, that an order dismissing the bill was proper. The Supreme Court, in Suitterlin v. Connecticut Mut. Ins. Co., 90 Ill. 483, holds that the party seeking to redeem under such a decree and sale as the one before us, can do so only by making the offer within the time prescribed by the statute, and cannot do so afterward. Decree of U.S. Circ. Ct., N. D. Illinois, affirmed. Burley v. Flint. Opinion by Miller, J. [Decided March 13, 1882.]

CALIFORNIA SUPREME COURT ABSTRACT.

BAILMENT-TITLE WHEN NOT DIVESTED BY WRONGFUL SALE- ESTOPPEL.-R. who owned certain musical instruments which were in a store belonging to F., to secure a debt due F. executed a bill of sale of the same to F. Thereafter F. used, sold and rented such instruments, R. assisting him in doing so. D. visited the place where the instruments were, for the purpose of renting a piano, and was shown a piano by the son of F., the latter being absent. Thereafter F. directed R. to take the piano to the town where D. resided, to lease it to him by making the lease in the name of F. R. took the piano to D. and leased it to him, executing the lease in his (R.'s) own name. R. collected six months' rent from D. and did not return. F. then notified D. as to his ownership, and it was agreed between them that D. at the end of six months should return the piano to F. After this R. in satisfaction of a previous debt executed a bill of sale to one P. of the piano and assigned the lease by him to D. P. then knew of the claim of F. Thereafter P. executed a lease of the piano to D., which the latter accepted. Thereafter D. returned the piano to F. In an action by P. to recover possession of the piano, held that F. did not lose title to the piano by permitting R. to take possession and control of same, and that D. was not estopped from denying the title of P. There is no doubt that the transfer of possession to the pledgee of the thing pledged is requisite to constitute a valid pledge, and the continuance of possession is also requisite. Story Bailm. §§ 287, 279; Goldstein v. Hart, 30 Cal. 375; Treadwell v. Davis, 34 id. 601; Ryall v. Noble, 1 Atk. 165; Reeves v. Cupper, 5 Bing. N. C. 140-1. As a general rule, it is no doubt true that the delivery back of the possession of the thing pledged with the consent of the pledgee terminates the bailment and his lien. Homes v. Crane, 2 Pick. 607; Jarvis v. Rodgers, 15

Mass. 389; Treadwell v. Davis, ut supra. But if the pledgor recover possession of the pledged property wrongfully, without the consent of the pledgee, the pledge is still valid. Wolcott v. Kath, 2 Foster, 196. And if it is delivered back to the pledgor in a new character, as a special bailee or agent, the pledgee will still be entitled to the pledge, not only against the owner but against third persons, for under such circumstances the possession is perfectly consistent with the existence of the original right of the pledgee. Macomber v. Parker, 14 Pick. 497; Hays v. Riddle, 1 Sandf. 252. In all bailments the general rule is that the bailee is bound to return the thing bailed to the bailor. But there are many exceptions to this rule, as thoroughly considered and well decided cases show in which the bailee was entitled to set up the jus tertiæ. In Shelbury v. Scotsford, Yelv. 323, the plaintiff sued in assumpsit for a breach of defendant's contract to re-deliver a horse borrowed by the defendant of him. The defendant set up as a bar that the property was in J. S., who had taken it from him by force; to which there was a replication that defendant suffered J. S., by fraud and covin, to take the horse. Upon this issue was joined, and verdict found for defendant. Plaintiff moved in arrest of judgment on the ground that notwithstanding the verdict, judgment should have been for him by reason of defendant's confession in his plea in bar. This was adjudged against him by Fenner and Yelverton. The reporter states the reason as follows: "For the matter alleged by the defendant does in law discharge the promise, by reason of the former property of the horse in J. S.," and proceeds arguendo to style it "an eviction of the horse out of the defendant's possession, which discharges the promise, as well as an eviction of the lessee for years discharges all rents, bonds and covenants in any sort depending on the interest." See also Hardman v. Wilcock, 9 Bing. 382; Cheseman v. Exall, 6 Exch. 341. In Ogle v. Atkinson, 5 Taunt. 759, a warehouseman receiving goods from a consiguee who had actual possession of them to be kept for his use, was allowed to set up the right of another. See Sheridan v. The New Quay Co., 9 Bing. 382; Wilson v. Anderton, 1 B. & Ad. 450; Watson v. Lane, 11 Exch. 769; Dixon v. Yates, 5 B. & Ad. 340; Biddle v. Bond, 34 L. J. N. S. (Q. B.) 137. The Supreme Court of this State, in Hayden v. Davis, 9 Cal. 573, allowed a common carrier to avail himself of the jus tertiæ as a defense against the consignor. Citing King v. Richards, 6 Whart. 418. See further Floyd v. Bovard, 6 W. & S. 76; Bates v. Stanton, 1 Duer, 79; Beach v. Bardell, 2 id. 327: Lawrence v. Berry, 19 Ala. 130; Whittier v. Smith, 11 Mass. 210; Fair v. Stevenot, 29 Cal. 486; Smith v. Yale, 31 id. 184; Pell v. McElroy, 36 id. 272; Williamson v. Berry, 15 N. Y. 325; Bolt v. Rogers, 3 Paige, 157; Morse v. Goddard, 13 Metc. 177; George v. Peabody, 4 Cush. 354; Carpenter v. Parker, 3 Q. B. N. S. 235. Palmtag v. Doutrick. Opinion by Thornton, J. [Decided Dec. 22, 1881.]

LIABILITY

OF

STOCKHOLDERS

CORPORATION DEFENSE. Under the California statute stockholders of a corporation are held to be principal debtors for the debts of the corporation and not sureties. Held, that a stockholder could not set up as a defense to an action by a creditor of the corporation that the creditor held property of the corporation, as a pledge for the debt. It is well settled that in the absence of a statute or stipulation to the contrary, the possession of the pledged property does not suspend the right of the pledgee to proceed personally against the pledgor for his debt, without selling the pledge, for the reason that the security is only collateral. Butterworth v. Keunedy, Bosw. 143; Elder v. Rouse, 15 Wend. 118; Langdon v. Buel, 9 id. 80, 83; Case v. Boughton, 11 id. 106; Beckwith v. Sibley, 11 Pick. 482; Townsend v. Newhall, 14 id. 332; Whitaker v. Sumner, 20 id. 399. in Bank of

Rutland v. Woodruff, 34 Vt. 93, the court say: "It is claimed too that if the plaintiffs held these bills as collateral security for the money merely they should have offered to surrender them before suing for the money; that they cannot pursue their remedy directly for the money, and hold the bill at the same time. But it is a new doctrine that a creditor holding collateral security for a debt cannot enforce his debt without surrendering his securities. He is entitled to hold them until he gets his pay; then they belong to the debtor." The rule on this subject is thus stated in Robinson v. Hurley, 11 Iowa, 410. "After the debt falls due the pledgee under the law has his election to pursue one of three courses: First, to proceed personally against the pledgor for his debt without selling the collateral security; or second, to file a bill in chancery and have a judicial sale under a regular decree of foreclosure, or third, to sell without judicial process upon giving reasonable notice to the debtor to redeem." In Smith v. Strait, 63 Me. 205, it was held that judgment recovered against the pledgor on the debt does not preclude the pledgee from continuing to hold the pledge. As a pledge is a security for the payment of the debt, the pledgee must have the right to retain it until the debt is paid. Such is the character of the security, and the decisions in the cases above referred to are in accordance therewith. See further on this subject Comstock V. Smith, 23 Me. 202; Whitwell v. Brigham, 19 Pick. 117: Buck v. Ingersoll, 11 Metc. 226. Sonoma Valley Bank v. Hill. Opinion by Thornton, J. [Decided Nov. 23, 1881.]

SPECIFIC PERFORMANCE-RELIEF IN DISCRETION OF COURT- UNFAIR AGREEMENT NOT ENFORCED.-A suit for the specific performance of a contract for the sale of real estate is addressed to the sound discretion of the court. The discretion to be exercised is not, it is true, an arbitrary or capricious one, depending upon the mere pleasure of the court, but is one to be exercised and controlled by the established doctrines of equity, applied to the circumstances of the particular case. "Unless the court is satisfied," said Chancellor Kent, "that the contract is fair and just, and equal in all its parts, and founded on an adequate consideration, it will not by the interposition of its extraordinary power, order it to be executed." If an agreement be deficient in either fairness, justice or certainty, its specific execution will not be decreed, 2 Story's Eq. Jur., §§ 769, 770. And in addition to the elements of fairness, justice and certainty, agreements of the character of that now before us must be mutual before the power of the court to order specific performance can be successfully invoked. Cooper v. Pena, 21 Cal. 403; Vassault v. Edwards, 43 id. 465; Marble Co. v. Ripley, 10 Wall. 339. Sturges v. Galindo. Opinion by Ross, J. [Decided Nov. 29, 1881 ]

MARYLAND COURT OF APPEALS ABSTRACT.*

ADVANCEMENT - EVIDENCE TO ESTABLISH.- Loose declarations of a parent that he intended an existing debt should be an advancement, not substantiated by writing, nor made to the child, nor assented to by him, nor accompanied by any act, are not sufficient to destroy a debt secured by a legal iustrument in full force, and to change it into a gift by way of advancement, whether offered by the son to defeat the recovery of the debt, or by the representatives of the parent against the son to defeat his claim to a distributive share. See Clark v. Wilson, 27 Md. 700; Edwards v. Freeman, 2 P. Wms. 440; High's Appeal, 21 Penn. St. 283; Grey v. Grey, 22 Ala. 233; Haverstock v. Larback, 1 W. & S 390; Levering v. Rittenhouse, 4 Whart. 130; *To appear in 57 Maryland Reports.

Yundt's Appeal, 13 Peun. St. 575. Harley v. Harley. Opinion by Alvey, J. [Decided Jan. 13, 1882.] MASTER AND SERVANT-NEGLIGENCE- DUTY OF MASTER-CO-SERVANT. — In an action against an employer for the death by injury of a workman, it appeared that the death was caused by the slipping of a plank on which deceased was at work, and which had negligently been placed on some guard-rails. The employer was not present at the time, but had left the work in charge of a competent foreman. The work was the building of an iron bridge. The work was in its nature perilous, but the peril was obvious. Ample materials were at hand to secure safety, but the precautions for safety were neglected through the fault of deceased and his fellow-laborers. Held, that defendant was not liable for the death. The servant engaging in a hazardous employment assumes its risks, but does not those of the negligence or malfeasance of the master. The master must use diligence, having respect to the nature of the service, to provide the proper materials, appliances and instrumentalities for doing the work, and also to use due diligence and care in the selection and employment of competent and careful fellow-servants for the particular work or service to be performed. Nor can the master knowingly expose the servant to extraordinary peril against which the servant from his want of knowledge or skill cannot guard himself. See Hutchinson v. Railway Co., 5 Exch. 343: Wigmore v. Jay, id. 354; Roberts v. Smith, 2 H. & N. 213; Williams v. Clough, 3 id. 258; Hough v. Railway Co., 100 U. S. 213. Where a foreman is employed, the English cases and a preponderance of the American hold that he is a fellow-servant, and the master is not liable for his negligence. See Wiggett v. Fox, 11 Exch. 832; Brown v. Acrington Cotton Co., 3 H. & C. 513; Searle v. Lindsay, 11 C. B. N. S. 429; Lovegrove v. Railway Co., and Gallagher v. Piper, 16 C. B. N. S. 669; Felthham v. England, L. R., 2 Q. B. 32; Howell v. Steele Co., L. R, 10 Q. B. 62; Warner v. Erie R. Co., 39 N. Y. 468; Lawler v. Railway Co., 62 Me. 463; Blake v. Railway Co., 70 id. 60. To the general rule however there is this qualification, that where the superintendent is intrusted with the discharge of the duties incumbent upon the master, as between the latter and the servaut, there the master may be liable for the omissions or neglect of the superintendent in respect to those duties. If the master relinquishes all supervision of the work, and entrusts not only the su pervision and direction of the work, but the selection and employment of laborers, and the procuring of materials, machinery, and other instrumentalities necessary for the service to the judgment and discretion of a superintendent, in such case the latter becomes a viceprincipal, and for his omissions or negligence in the discharge of those duties the principal will be liable. Murphy v. Smith, 19 C. B. N. S. 361; Malone v. Hathaway, 64 N. Y. 5. In this case the employer having employed a competent and skillful foreman to supervise and direct the work, there was no obligation to select other hands, more skilled and careful than the deceased himself, for his protection. See also Railway Co. v. Stricker, 51 Md. 47; Woodley v. Railway Co., L. R., 2 Exch. D. 389; Sullivan v. India Man. Co., 113 Mass. 396; Sullivan v. Louisville Bridge Co., 9 Bash, 81. State Use of Hamelin v. Malster. Opinion by Alvey, J. [Decided Nov. 15, 1881.]

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SURETYSHIP

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OFFICIAL BOND-FAILURE то

RE

QUIRE ACCOUNT FROM OFFICER DOES NOT RELEASE SURETY- FORGERY OF NAME OF ONE SURETY. - Statutory directions to public officers are given for the security and convenience of the government, and to

rectory, they form no part of the contract of the sureties of such officers upon their official bonds, and hence the sureties on a county treasurer's bond cannot plead the negligence or failure of the county board to require their principal to render an account, or to remove him for neglect to render such account, as a defense to their liability upon a subsequent breach of his bond. See United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 id. 184: United States v. Boyd et al., 15 Pet. 187; Jones et al. v. United States, 18 Wall. 662; Ryan v. United States, 19 id. 514; People v. Russell, Wend. 570; Cawley v. People, 95 Ill. 249.

but afterward had two children, one of whom survived her. In 1869 E. S. died. In 1875 C. S. having declared her intention of offering the will for probate and asserting her rights thereunder, a bill was filed in behalf of the child and husband to restrain such action, charging the paper was executed by E. S., and deliv-regulate the conduct of its officers, and being only diered to her husband, with the request, understanding and direction that the same was not to be taken or probated as her will, in case she should die leaving issue, but in such event it should be inoperative, so that her estate should pass as if it had never been executed. The bill further charged that C. S. had knowledge at the time of the execution of the paper of the intention and direction so given by the maker, and assented to the same. Held, that parol evidence was inadmissible to show declarations of E. S., whether made before, after, or at the time of the execution of the will, to render it inoperative on the grounds set forth in the bill, E. S. having executed it animo testandi, and as a serious and well considered act; and that C. S. was not estopped from asserting her rights under the will. The reasons that apply to other instruments as escrows have no applicability to wills. See Wittman v. Goodhaud, 26 Md. 95; Black v. Shreeve, 2 Beas. 458; Lester v. Smith, 2 Sw. & Tr. 282; Nichols v. Nichols, 2 Phill. 180. Sewell v. Slingluff. Opinion by Stone, J. [Decided Feb. 9. 1882.]

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DEED- -OF HUSBAND AND WIFE NON-DELIVERY OF BY HUSBAND DURING LIFE AFTER-ACQUIRED TITLE. (1). Where a deed was made and acknowledged by a husband and wife, of lands of the wife, and placed by the wife in the husband's hands, leaving him to determine when, if ever, it should be delivered, and he failed to exercise that discretion in his wife's lifetime, and the wife, after the date of the deed, built a large house on the premises, in which she and her husband resided until her death, after which he passed over the deed to the grantee, held, that the deed never took effect for want of delivery in the life-time of the wife, and that upon her' death his authority to deliver was revoked. (2). A quitclaim deed of a party to land without any covenants of warranty, will not pass an after-acquired title by the grantor. Benneson v. Aiken, Opinion by Craig, C. J.

MORTGAGE - MORTGAGEE ACQUIRING EQUITY OF REDEMPTION PRESUMPTION AS TO NOTES NOTICE.

Where a mortgagee, after an assignment of the notes secured by his mortgage, acquires the equity of redemption, and enters a formal release of the mortgage upon the record, a party taking a mortgage from him upon the same premises without notice of the assignment of the notes, will acquire a lien superior to that of the holder of the assigned notes. There being no presumption of law that the payee of notes secured by mortgage has transferred the same before purchasing the equity of redemption from the mortgagor, a person taking a mortgage from the payee will not be held chargeable with notice that the notes secured in the first mortgage have been assigned, but he may rely upon the record, as showing title in his mortgagor. An assignee of notes secured by mortgage may protect his equitable lien on the mortgaged premises, by taking and putting upon record an assignment of the mortgage, so as to give notice of his interest, and thereby prevent others from being deceived by any subsequent satisfaction entered of record by the mortgagee. See Flower v. Elwood, 66 Ill. 438; Edgerton v. Young, 43 id. 464; Keohane v. Smith, 97 id. 156. Ogle v. Turpin. Opinion by Walker, J.

* Appearing in 102 Illinois Reports.

(2) The fact that the name of one of the sureties to an official bond has been forged, will not discharge a surety who subsequently executes the bond in ignorance of such forgery. In Seely v. People, 27 Ill. 173, it was held, where a party executes a bond as surety with another whose name has been forged, he will not be liable; but in Stoner v. Millikin, 85 Ill. 218, that case is overruled. And in the case of People v. Organ, 27 Ill. 29, in so far as it makes a distinction in this regard between commercial paper and other instruments, is overruled by City of Chicago v. Gage, 95 Ill. 593. See Smith v. Peoria County, 59 Ill. 412; Comstock v. Gage, 91 id. 328; State v. Baker, 64 Mo. 167. Stern v. People of Illinois. Opinion by Scholfield, J.

WATER-COURSE-NO PROPERTY IN WATER OF-
RIGHTS OF RIPARIAN OWNER-ADDITION TO WATER.

-There can be no property merely in the water of a
The owner of land over which a
running stream.
stream of water flows has, as incident to his owner-
ship of the land, a property right in the flow of the
water at that place for all the beneficial uses that may
result from it, whether for motive power in propelling
machinery, or in imparting fertility to the adjacent
soil, etc.-in other words, he has a usufruct in the
water while it passes; but all other riparian proprie-
tors have precisely the same rights in regard to it, and
apart from the right of consumption for supplying
natural wants, neither can, to the injury of the other,
abstract the water, or divert or arrest its flow. Such
being the character of the right of riparian proprietors
in the water of a running stream, it matters not how,
in the first instance, the water became running water,
for if it were raised by wells, or brought out of reser-
voirs, the moment the waters thus produced are al-
lowed to flow into a natural stream, aud mingle with
its waters thence on toward its mouth, over the soil
of another, the rights of the lower riparian proprietors
attach. Or where the natural flow of water in a run-
ning stream is augmented by any artificial means the

same result will follow. And where water is thus

brought into a running stream, the principle is not restricted to the more remote riparian proprietor, but is equally applicable to those who are proximate to the party causing the artificial addition to the waters. So where an individual has by artificial means brought water into a running stream in such manner that the rights of lower riparian proprietors over whose lands the commingled waters may flow, will attach, then the moment such waters enter upon the land of another the party causing the artificial addition will be re

garded as having abandoned the water so produced by him, and placed it beyond his right of legal reclamation or control. And this doctrine applies notwithstanding the attempted diversion may be of only the same quantity of water which the person seeking to reclaim it may have to the volume of the stream, or

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