is the same thing, is a question of fact for the jury. "Every one must conduct himself honestly in respect to antecedent parties, when he takes negotiable paper in order to acquire a title which will shield him against prior equities, while he is not obliged to make inquiries, he must not willfully shut his eyes to the means of knowledge which he knows are at hand, as was plainly intimated by Baron Parke in May v. Chapman, 16 M. & W. 355, for the reason that such conduct, whether equivalent to notice or not, would be plenary evidence of bad faith. Mere want of care and caution is not enough."

In Bailey v. Bidwell, 13 M. & W. 73, 76, A. D. 1844, Baron Parke says it has certainly been since the late cases the universal understanding that if the note was proved to have been obtained by fraud, or affected by illegality, that afforded a presumption that the person who had been guilty of the illegality would dispose of it and would place it in the hands of another person to sue upon it, and such proof casts upon the holder the burden of proving that he is a bonâ fide holder for value.

In May v. Chapman, 16 M. & W. 355, 361, Baron Parke said notice and knowledge mean not only express notice, but knowledge or means of knowledge to which the party willfully shuts his eyes.

Many cases have held that the fact that the note is or is not taken in the usual course of business is important. As to the meaning of this see Roberts v. Hall, 37 Conn. 205, 211.

For a full history of the decisions on these points see Judge Clifford's opinion in Goodman v. Simonds, 20 How. (U. S.) 343, and the argument of counsel, p. 345; Bigelow Bills and Notes, 440, 441; 1 Smith Lead. Cas. *607, and criticisms on the cases in 2 Cent. L. J. 425; 3 id. 6, 213; 7, id. 238, 348. See also Story, Promissory Notes, § 196 and notes.

As the law now stands, the holder of negotiable paper takes it at his own risk as far as its validity may be affected by the incapacity of the party, as the law makes all contracts void for usury, forgery, etc.

We think the plaintiff was not entitled to protection as a bona fide holder in the present case.

It will be seen that the admission here is, not that the plaintiff gave full value, but that he was a holder for a valuable consideration. The latter might be enough in some cases, but in a case like this, where the defense is fraud, alteration or forgery, the fact that the plaintiff purchased the note for a sum much below its face, even if he did not know of any equities between the original parties, might be a circumstance tending to show that he willfully shut his eyes to the means of knowing the facts.

In the case before us if the cheat was practiced by superposition, then it was at least a fraud, and a question of negligence might arise. The defendant testifies that he signed a note not negotiable and read it before signing, and the jury must have been satisfied there was no blamable negligence. If the ink was erased by any chemical process and a negotiable note substituted over his name, then it was a forgery and no question of negligence could arise.

The defendant testifies that he read it, having refused to sign the one first presented to him. In this he is confirmed by another person present, and the payee was not produced to contradict his statement, as he might have been if it was not true.

In the order of trial, the plaintiff first produces his Bote, and the signature not being denied may rest his case. If the signature is his it is prima facie evidence that the whole instrument is genuine.

Then the defendant may put in evidence to prove fraud, etc., in the inception of the note. The plaintiff, in all those cases where the note would be valid in the hands of a holder for value, must then show that he is

such and that he took it in good faith. And he may be required to show the circumstances under which he took the note, as bearing upon this point. So laid down in Wyer v. Dorchester & Milton Bank, 11 Cush. 51, although not necessary to the decision there; and see Bigelow on Bills and Notes, 540, 580. If proved to be a forgery it would not matter how he obtained it. We think the evidence was properly admitted. The jury must have been satisfied that it was a fraud, without negligence on the part of the defendant, or a forgery, and we do not think the verdict is against the evidence.

Petition dismissed.

MAINE SUPREME JUDICIAL COURT.

MAY 9, 1882.

BURRILL V. STEVENS.*

Where the payees of a promissory note obtained it upon a promise in writing on their part to deliver to the maker at a future time five mowers of different prices and four plows, with a positive and predetermined intention entertained and acted upon at the time never to deliver such mowers and plows, and subsequently delivered two of the plows; Held, in an action on the note against the makers by an indorsee with knowledge of the note against the makers, thatthe contract of the payees of the note was an entirety; that the plaintiff was entitled to recover at the agreed price for the two plows furnished, less the damages sustained by the defendant for a non-delivery of the balance of the articles at the contract price.

CTION by an indorsee on the following promissory

Anote made by defendant: "Embden, Maine, Octo

ber 1, 1874. One year after date, I promise to pay to the order of C. B. Mahan, agent, four hundred and twenty-two dollars, at the first National Bank, Skowhegan, Maine. Value received."

Defendant pleaded the general issue and set up "that said note was procured by fraud and fraudulent representations and that no consideration was ever received for the same, and that the considerations promised utterly failed, and said note never had any validity whatever by reason of said fraud and misrepresentations, and total failure and want of consideration, all of which the plaintiff well knew."

The verdict was in favor of plaintiff for $16.54. Plaintiff moved to set verdict aside and also filed exceptions. Joseph Baker, for plaintiff.

D. D. Stewart and A. H. Ware, for defendant.

PETERS, J. The defendant gave a negotiable note in consideration of a promise of the payees of the note to deliver to him at a future time certain mowing machines and plows. The note is sued by an indorsee, and one of the grounds of the defense was, that the payees obtained the note with an intention never to deliver the implements, and that the indorsee, who sues the note, was conusant of the fraud.

The instructions to the jury upon that point present the question, whether getting property by a purchase upon credit, with an intention of the purchaser never to pay for the same, constitutes such a fraud as will entitle the seller to avoid the sale, although there are no fraudulent misrepresentations or false pretenses.

The question has never been fairly before this court before this time, so as to require a deliberate decision. The plaintiff contends that the question was settled in the negative in the case of Long v. Woodman, 58 Maine, 49. But that case falls short of meeting the question presented in the present case. The gist of the charge against the purchaser in that case seems to have been that he fraudulently refused to do after the contract what he agreed to do at the time of the contract, the * Appearing in 73 Maine Reports.

alleged fraud being an intention formed after the contract rather than contemporaneously with it; and that was an action of deceit based upon a broken promise to convey real estate. Of late years, nisi prius rulings in our own courts have frequently been in accordance with the law as delivered to the jury by the presiding judge in the case at bar, and we think the doctrine may safely be accepted and approved, both upon authority and principle.

It is the admitted doctrine of the English cases, and is sustained by most of the courts in the United States. In Benj. on Sales (2d Amer. ed.) § 440, note e, very numerous cases are cited to the proposition. Stewart v. Emerson, 52 N. H. 301, discusses the question at length, and reviews many authorities.

The plaintiff relies upon the objection that it is not an indictable fraud, an argument which seems to have inclined the Pennsylvania court against admitting the principle into the jurisprudence of that State. Smith v. Smith, 21 Penn. St. 367; Backentoss v. Speicher, 31 id. 324. It has been held by some courts to be an indictable cheat, the false pretense being in the vendee's pretendingly making a purchase, while his only purpose is to cheat the vendor out of his goods. It is more often considered however as not a matter for indictment. Bish. Crim. Law, § 419. But the objection, taken by the plaintiff, has generally been considered as insufficient to override the rule.

But the doctrine governing the case before us should not be misunderstood. To constitute the fraud, there must be a preconceived design never to pay for the goods. A mere intent not to pay for the goods when the debt becomes due, is not enough; that falls short of the idea. A design not to pay according to the contract is not equivalent to an intention never to pay for the goods, and does not amount to an intention to defraud the seller outright, although it may be evidence of such a contemplated fraud.

Nor is it enough to constitute the fraud, that the buyer is insolvent, and knows himself to be so, at the time of the purchase, and conceals the fact from the seller, and has not reasonable expectations that he can ever pay the debt. Some courts have gone so far as to denominate that a fraud which will avoid the sale. And it may have been so held in bankruptcy courts, in some instances, as between a vendor and the assignee of the vendee. But it would not generally be enough to prove the fraud. The inquiry is not whether the vendee had reasonable grounds to believe he could pay the debt at some time and in some way, but whether he intended in point of fact not to pay it.

Nor is it enough, that after the purchase the vendee conceives a design and form a purpose not to pay for the goods and successfully avoids paying for them. The only intent that renders the sale fraudulent is a positive and predetermined intention, entertained and acted upon at the time of going through the forms of an apparent sale, never to pay for the goods. Cross v. Peters,1 Greenl. 378; Biggs v. Barry, 2 Curtis (C. C. R.), 259; Parker v. Byrnes, 1 Low. 539; Rowley v. Bigelow, 12 Pick. 306. The general principle is found to have been especially applicable in cases where written instruments and negotiable papers have been fraudulently obtained from the makers of them. Smith v. Braine, 16 A. and Ell. N. S. 244; Hall v. Featherstone, 3 Hurls. and Nor. 284.

The defendant received a small portion of the goods which were to be sent to him for the note, and the jury were instructed to render a verdict for the price of those articles, less the damages sustained by the defendant for a non-delivery of the balance of the articles at the contract price. That was correct. The defendant was to be no worse off under his contract because he was defrauded than he would have been if not defrauded. Nor does it make a difference that each article

was separately priced in the contract. The contract is an entirety, and the damages are because the articles were not all furnished at the enumerated prices. The plaintiff urges upon our attention that there is no evidence to support any reduction from the price for damages. There is such in the testimony of the defendaut. Motion and exception overruled. NOTE.-See also upon the subject discussed in the opinion. Berry v. Alderman, 14 C. B. 95; Smith v. Sac County, 11 Wall. 147; Harvey v. Towers, 6 Exch. 656; Dow v. Sanborn, 3 Allen, 181; Kline v. Baker, 99 Mass. 255; Wiggin v. Day, 9 Gray, 97; Rowley v. Bigelow, 12 Pick. 307; Bryant v. Ins. Co., 22 id. 200; Munroe v. Cooper, 5 id. 412; Bowker v. Hoyt, 18 id. 555; Oxnard v. Swanton, 39 Maine, 125; Farrar v. Merrill, 1 id. 17; French v. Stanley, 21 id. 512; Howard v. Miner, 20 id. 325; Thacher v. Dinsmore, 5 Mass. 302; Bliss v. Negus, 8 id. 46; Hill v. Buckminster, 5 Pick. 391; Purish v. Stone, 14 id. 202; Slade v. Hood, 13 Gray, 97; Daggett v. Daggett, 8 Cush. 520; Swett v. Hooper, 62 Me. 54; Roberts v. Lane, 64 id. 108; Field v. Tibbetts, 57 id. 358; Hapgood v. Needham, 59 id. 442; Perrin v. Noyes, 39 id. 384; Aldrich v. Warren, 16 id. 465; Tucker v. Morrill, 1 Allen, 528; Sistermans v. Field, 9 Gray, 331; Talcott v. Henderson, 31 Ohio St. 162; S. C., 27 Am. Dec 501, and note, 504.

*To appear in 86 North Carolina Reports.

The defendant sold to the plaintiff his druggists' business and agreed not to carry on that business at that town. Subsequently he bought a new stock and opened the like business at the same stand. He was enjoined by the court from so carrying on that business. Within a week thereafter he sold his new stock to two farmers, residing several miles distant, ignorant of the business and paying no personal attention to it, and commenced acting as their hired manager and agent in that business at the same stand. Held, that he was guilty of contempt in disobeying the injunction.

RU

OULE on defendant to show cause why he should not be attached for contempt.

The pleadings show that in May, 1880, Joseph H. Baker, father of the plaintiff, for the benefit of plaintiff and for the purpose of starting him in business on his own account, bought of defendant, who for a number of years had been engaged in the business of selling drugs and medicines and preparing prescriptions of physicians in the town of Tarboro, his stock of drugs, etc., and the good will of his business for $1,500, then paid, and the defendant agreed in consideration thereof not to carry on said business in the town while the plaintiff was engaged in it.

The defendant is charged with violating an injunction, issued in pursuance of an interlocutory order in the cause and restraining him from " commencing and engaging in and carrying on the said business of selling drugs and medicines, and preparing prescriptions in the town of Tarboro." Upon a rule to show cause why he should not be attached for contempt in disobeying the order, the court finds the following facts:

Within a week after the denial of the defendant's application for a dissolution of the restraining order the defendant conveyed by a bill of sale to Lawrence and Britt, his entire stock of drugs and medicines, bought since the making the contract mentioned, and which he had been forbidden to dispose of in the way of business; and immediately thereafter professing to

act as manager aud superintendent of his vendees, proceeded in the same building and room to sell and dispose of the same goods and to prepare and fill prescriptions as he had before done. Lawrence and Britt are farmers residing in the country several miles distant from the town, have no practical knowledge of the drug business, gave it no personal attention, and left it entirely to the conduct and control of the defendant. The business as carried on depends entirely on the good will of the defendant, and the patronage extended to the new firm consists largely of that possessed by the defendant before. Lawrence and Britt have no knowledge or skill in dealing with drugs; and the reason they assign for becoming purchasers is that they are sureties to the defendant for the money borrowed and used in payment for the stock, and they took the assignment for their indemnity against loss. The stock has had accessions since they became owners, and they have contracted with the defendant to pay him for his services. Britt has declined an offer from two persons to purchase the stock and discharge the notes on which himself and Lawrence are co-sureties.

There are now three drug stores in the town, while at the time of sale to the plaintiff's father there was but one other besides that of the defendant. There is no finding that the sale to Lawrence and Britt, and the continued prosecution of the business by the defendant in their name, was an attempted evasion of the force and effect of the injunction, and none can be drawn by us from the recited facts.

The court adjudged that the acts of the defendant were within the purview of the prohibitory mandate, and in contempt of the authority of the court, and sentenced him for his offense to an imprisonment in the county jail for the term of ten days. judgment the defendant appeals.

Battle & Mordecai, for plaintiff.

John L. Bridgers, Jr., for defendant.

From this

SMITH, C. J., after stating the facts. It is quite manifest the injunction contempleted (and such is a fair interpretation of the words in which its extent is expressed) the defendant's personal disconnection with the drug business in the town, and the securing to the plaintiff the full measure of the expected fruits of his father's contract. Under the subsequent arrangement by which other proprietors are nominally substituted for himself, and he remains in possession of the assigned stock and continues to deal with it in all respects under the supervision of no superior, as before, for all practical objects contemplated in the order, and with the same injurious consequences to the plaintiff, the defendant is "engaged in and carries on the business of selling drugs and medicines, and preparing prescriptions," in direct disregard of the command of the writ.

He still pursues his calling, from which he is required to desist, doing the very acts inhibited, and not the less so because in the form of an assumed agency for other absent owners. Full obedience to the mandate required his personal separation from the drug business, and that he should neither be instrumental in inducing others to embark in it, nor carry it on himself within the prescribed limits. A less comprehensive meaning given to the terms of the order, and the exemption of the facts of the present case from the scope of its operation, would be to permit its essential and manifest purpose to be defeated, and render illusory the relief it professes to afford. After the first sale made with the understanding that the defendant would retire, and by refraining from competition leave to his successor the good will and patronage he had secured, upon the assumed existence of which understanding the restraint is imposed, and but a few days after his non-successful effort to have the injunction annulled, he transfers the very stock he was prohibited

from using and disposing of in the occupation of a druggist, to two persons without knowledge or experience, and who exercise no controlling supervision in the management, and himself, with no perceptible change except in the name of the proprietors, continues precisely as he had done, to deal in the articles and to fill prescriptions for those who might apply. Surely such acts might be deemed, notwithstanding a valid assignment, evasive of the personal obligation imposed, and a violation of the restraining order.

We do not in thus holding say, nor do we suppose, that the defendant could not have entered the drug store of another and acted in the subordinate character of clerk to the proprietor, without overstepping the restraints of the order; but his action and direct agency in this transaction, with the obvious design that the business he was then engaged in should be still carried on by himself, though nominally for others, renders him amenable to the charge of disobeying the mandate of the court, and not the less so ou account of the assumed agency.

The brief filed by defendant's counsel points us to two alleged errors in the action of the court.

1. The defendant was entitled to a jury trial of the controverted facts:

The

The exception is untenable. The proceeding by attachment, for violating an order of the court made in furtherance of a pending action, is necessarily summary and prompt, and to be effectual it must be so. judge determines the facts and adjudges the contempt, and while he may avail himself of a jury and have their verdict upon a disputed and doubtful matter of fact, it is in his discretion to do so or not. State v. Yancey, 1 Car. L. Rep. 133; State v. Woodfin, 5 Ired. 199; Moye v. Codgdell, 66 N. C. 403; Crow v. State, 24 Texas, 12.

But if it were not so, it is sufficient in meeting the exception, to say that a jury trial was not demanded, and the judge proceeded to pass upon the case, if not with the consent, at least without objection from either party. Isler v. Murphy, 71 N. C. 436.

2. The disavowal of the imputed intent purges the contempt and exonerates the defendant:

This objection rests upon a misapplication of the rule laid down and acted on in the matter of Moore and others, 63 N. C. 397. That rule is confined to the "class of cases" in the language of the chief justice who delivers the opinion, "where the intention to injure constitutes the gravamen " of the offense. The violation of a judicial mandate stands upon different ground, and the only inquiry is whether its requirements have been willfully disregarded. If the act is intentional, and violates the order, the penalty is incurred whether an indignity to the court, or contempt of its authority, was or was not the motive for doing it. A party is not at liberty by a strained and narrow construction of the words, and a disregard of the obvious and essential requirements of the order, to evade the responsibility which attaches to his conduct. In an honest desire to know the meaning and to conform to its directions, a mistaken interpretation of doubtful language would be a defense to the charge, but when its language is plain and the attempt is made to escape the force and defeat the manifest purposes of the order by indirection, the penalty must be enforced or the court would be unable to perform many of its most important functions. Bat. Rev., ch. 24, § 1, par. 4. High on Injunction, § 852; Pain v. Pain, 80 N. C. 322.

There is no error, and this will be certified.

torney for the sheriff in other matters, but not in reference to an execution the sheriff held against plaintiff. There was testimony showing that the sheriff received money of the plaintiff upon the execution, and promised to do nothing further without notice to him, which promise he failed to fulfill; that the plaintiff had personal property out of which the money might have been made; that no attempt was made to collect out of the personal property; that the sheriff sold two lots belonging to plaintiff, found to be of the value of $4,000; that M. bid off at the sale the two lots, which were not sold in parcels but together, for $280; that M. did not take possession of the premises, but after having allowed the plaintiff to remain in possession, and to pay taxes and make repairs without any consideration, two and one-half years after the deed by the sheriff to him conveyed the same to one S. It also appeared that no return was made to the execution, and the judgment was not satisfied of record until after the commencement of this action, and a surplus over and above the amount of the same was never paid or offered to be paid to the plaintiff; that the conveyance of the defendant to S. was never placed on record, and he was a non-resident. Held, that a judgment setting aside the sale on the ground of fraud and collusion and abuse of process by the sheriff was proper. (2) The plaintiff first knew of the sale in the month of August, 1875, and brought his action in April, 1876. No injury occurred by means of his delay in bringing the action. Held, that there was not such inexcusable luches and bad faith as precluded the plaintiff from maintaining his action. (3) The provision of Code Civ. Pro., § 1440 as amended, Laws 1881, ch. 681, § 2, has no application where relief is sought against a fraudulent act of the defendant. Judgment modified and affirmed. McIntyre v. Sanford. Opinion by Miller, J. [Decided June 30, 1882.]

COSTS WHEN ATTORNEY UNSUCCESSFULLY OPPOSING APPLICATION FOR RECEIVERSHIP ENTITLED TO, FROM ESTATE CORPORATION.- Plaintiff, an attorney and counsellor, was retained by the officers of an insurance company to oppose an application for the appointment of a receiver. The opposition on the part of the company to the appointment of a receiver was in good faith, and with a conviction of the solvency of the company, and its right to conduct its own business, and it had probable cause and reasonable grounds for such opposition. A receiver was appointed, and from the order of the court the company under the advice of plaintiff took an appeal to the general term, which affirmed the order, and an appeal was taken to the Court of Appeals. This court allowed the company costs of the appeal, to be paid out of the fund in the receiver's hands. Held, that it would be proper to allow plaintiff compensation for services in opposing the appointment of a receiver and on the appeals, to be paid out of the fund in the receiver's hands, yet this was a matter in the discretion of the court holding the fund, and not an absolute right enforceable by action. As a general principle, trustees of a corporation, whose corporate existence is attacked, should be afforded the means of resisting such attack so far as the facts justify and their duty demands. Public policy requires that they should be protected to this extent, but no further; and a premium should not be held out for captious and vexatious contests at the expense of the fund, which the court is under the highest obligation to preserve, as far as possible, to meet the just debts and liabilities of the corporation. But the claims of the trustees to be protected in the defense of the corporation they represent, or that of their counsel to be paid out of the fund for opposing the appointment of a receiver, however just it may be, is not an absolute right which can be enforced by an action in their behalf against the receiver, but is a matter to be addressed to

the sound discretion of the court in which the proceeding is pending; such discretion should be exercised in that proceeding and as part thereof, and upon a consideration of all the circumstances. Judgment affirmed. Barnes v. Newcomb. Opinion by Rapallo, J. [Decided April 11, 1882.]

RECEIVERSHIP — ALLOWANCES TO ATTORNEY-GENERAL FOR SPECIAL COUNSEL NOT ALLOWED.-Allowances to the attorney-general for services of special counsel employed by him to aid in the settlement and adjustment of the affairs of insolvent corporations in the hands of receivers, to be paid out of the fund are not authorized. Order reversed. Matter of AttorneyGeneral v. Continental Insurance Co. Opinion by Andrews, C. J.

[Decided April 11, 1882.]

WILL-UNDUE INFLUENCE - AFFECTION FOR RELIGIOUS ADVISER NOT- GIFT TO ALIEN - IMPLIED TRUST EVIDENCE ON PROBATE OF WILL DIARIES OF TESTATOR.-Testator by her will gave her sister $1,000 a year, her share of a dwelling owned by her and the sister in common, and her share of the family silver during life. She gave to M. $1,000; she gave to B. certain personal property, and the remainder in the dwelling-house and family silver, and the income of her estate, after paying other charges, during life, and directed her executor to pay such income. The residue and remainder of her property she gave to a Roman Catholic charitable institution. Testator at the time of her death owned in common with her sister, besides the dwelling-house, real estate, producing $15,000 a year, etc. She was originally an Episcopalian attending a church of which B. was rector. B. became a Roman Catholic and testator afterward joined that church. Thereafter testator and B. were very intimate; visited Europe together, she paying the travelling expenses, and also paying the expense of educating B. for the Roman Catholic priesthood. M. was the priest of the church at which the deceased attended in New York. He was her confessor, and administered to her the communion. He received her into the Church of Rome. B. was also for a long time her spiritual adviser and comforter. He was her godfather when she was taken into the Church of Rome. He was shown to have great influence over her. B. was in Europe at the time she made her will. She consulted M. as to a lawyer to draw the will, but the evidence did not show that she talked with any one as to its contents. The will was drawn with great deliberation, and the time from the day when she first saw the lawyer who wrote it until she executed it was about two weeks. She first gave memoranda of what she desired to have put in the will; about a week after she corrected the draft, and about a week after that she finally executed the will in the form in which it was finally left. There was no one pressing her, crowding her, advising her or attempting to influence her. She perfectly comprehended the contents of thewill, and her subsequent correspondence with B. showed that it was just as she desired it should be. Testator lived with her sister at the time of her death and had no other near relative. Held that there was sufficient to overcome any presumption of undue influence on the part of B. or M. in reference to the will, and the probate of the same was proper. It is not sufficient for the purpose of establishing undue influence, to show that the will is the result of affection or gratitude, or the pursuasion which a friend or relative may legitimately use; but the influence must be such as to overpower and subject the will of the testator, thus producing a disposition of property which the testator would not have made if left freely to act his own pleasure, and this kind of influence will not generally be presumed, but must be proved like any other fact by him who alleges it. But there are certain cases

in which the law indulges in the presumption that undue influence has been used, and these cases are where a patient makes a will in favor of his physician, a client in favor of his lawyer, a ward in favor of his guardian, or any person in favor of his priest or religious adviser, or where other close confidential relationship exist. Such wills when made to the exclusion of the natural objects of the testator's bounty are viewed with great suspicion by the law, and some proof should be required beside the factum of the will, before the will can be sustained. This will was influenced by the af. fection testator had for B. and gratitude for M., but affection producing such a result is not undue influence. (2) Diaries kept by testator and letters written by her, held, no evidence of the facts stated in them. They were competent only as bearing upon her mental capacity, or upon the condition of mind with reference to the objects of her bounty, or as showing her relations to the people around her. They are however entitled to no weight in proving external acts, either of fraud or undue influence. 1 Redf. Wills, (3d ed.) 538; Waterman v. Whitney, 11 N. Y. 157. (3) B. was an alien, held, that the devise of the real estate to him was void (1 R. S. 57, § 4) but the gift of the income was valid. There was a direction within the meaning of the statute (1 R. S., 728, § 55) to receive the rents and profits of the land and apply them to the use of B. A direction to pay over rents and profits is equivalent to a direction to apply them to the use of a beneficiary. Leggett v. Perkins, 2 N. Y. 297. It is true that there is no direct or express devise of the real estate to the executor in trust, but such a devise must be implied and in analogous cases has frequently been implied. Betts v. Betts, 4 Abb. N. C. 385; Vail v. Vail, 7 Barb. 226. The executor is to receive the income of the estate; he is to pay the necessary expenses of the estate and pay over the income, and hence it must be implied that the testator intended that he should take the title of the estate in order that he could manage and control the same and carry out the trust intended. The fact that B. is an alien does not incapacitate him from receiving the income. He had no interest in the real estate. The income does not come to him as real estate, or even as an incident of real estate. It comes to him as personal property. The title, both legal and equitable, is in the trustee, and it is expressly provided that a beneficiary or cestui que trust in such a case takes no interest in the lands, but has the simple right to enforce the performance of the trust in equity. 1 R. S. 729, § 60; Craig v. Leslie, 3 Wheaton, 563; Anstice v. Brown, 6 Paige, 448; Meakings v. Cromwell, 5 N. Y. 136; Noyes v. Blakeman, 6 N. Y. 567. Judgment affirmed. Marx v. McGlynn. Opinion by Earl, J. [Decided May, 1882.]

NORTH CAROLINA SUPREME COURT AB

STRACT.

FEBRUARY TERM, 1882.*

HUSBAND AND WIFE-WHEN DEED BETWEEN, WILL NOT BE UPHELD. A deed from husband immediately to wife, conveying the whole of his real and personal property, will not be upheld in equity where the wife is shown to be unworthy of the interference of the court by reason of her being an adulteress; or where the provision for the wife, as here, is extravagant and exhaustive of the husband's estate. By the rule of the common law, which regards man and wife as one, every deed of gift made directly from husband to wife is void. But a court of equity, having a greater regard to the intention and convenience of the parties, and treating the deed merely as a defective conveyance, * To appear in 86 North Carolina Reports.

will uphold it in favor of the wife, if a clear and present purpose on the part of the husband to make the gift can be seen, and the gift itself appear to be no more than a reasonable provision to the wife. But in the early case of Elliott v. Elliott, 1 Dev. & Bat. Eq. 57, this court intimated that under no circumstances would it interpose to remedy a defective conveyance in behalf of a wife, whose own conduct had not been meritorious; though as there was in the case another clear ground, besides the wife's delinquency, on which to rest the decision, the court did not press that matter further. The opinion thus advanced in that case has since been referred to by another eminent judge, and in terms of such evident approbation, as to give to it much of the weight and authority of a positive adjudication. Paschall v. Hall, 5 Jones Eq. 108. And if there be any virtue in analogy, it is most strongly supported by the current of decisions of the English chancellors with reference to a kindred matter. In Carr v. Esterbrooke, 4 Ves. 145, a wife, who was separated from her husband upon the ground of adultery, petitioned the chancellor to have a sum of money belonging to her settled to her separate use, but the order was refused upon the ground of delinquency. A like refusal and for a like reason was made by the same chancellor in Ball v. Montgomery, 2 Ves. 189, and again by Lord Hardwicke in Watkyns v. Watkyns, 2 Atk. 96. All these cases are brought forward in Roper on Husband and Wife, 275, and the deduction made from them by the author is that if a wife be an adulteress living apart from her husband, no court will interfere to have a settlement made for her, even out of her own choses, "because she is unworthy of the court's notice or interference. Warlick v. White. Opinion by Ruffin, J. NEGLIGENCE CROSSING RAILROAD TRACK OR HIGHWAY.-While crossing a railroad track the plaintiff's intestate was killed by a train which had left a station on schedule time and attained a speed of twenty miles an hour; the deceased was working at a steam-mill located near the track; when first seen by the engineer he was about 100 feet from the engine, and making no effort to get out of the way; the engineer put on brakes and shut off steam, but gave no signal by bell or whistle. Held, that the contributory negligence of the deceased relieves the company of responsibility. One crossing a railroad track must be

on the alert to avoid injury from trains that may happen to be passing; and the omission of the engineer to give the precautionary signals of the approach of a train when it in no way contributed to an alleged injury, does not impose a liability upon the company. See New Jersey Ex. Co. v. Nichols, 3 N. J. Law, 439; Railroad Co. v. Houston, 95 U. S. 697. Parker v. Wilmington & Weldon Railroad Co. Opinion by Smith, C. J.

OFFICE TEST OF-WHEN INFORMATION WILL LIE. -The office of chief engineer of the Western North Carolina railroad is not a public office. The true test of a public office is that it is parcel of the administration of government, civil or military, or is itself created directly by the law-making power; and an information in the nature of a quo warranto only will lie to recover the same. "The three tests to be applied in determining whether an information will lie, are first, the source of the office; second, its tenure; and third, its duties. The source of the office should be from the crown or sovereign authority, either by charter or legislative enactment; its tenure should be fixed and permanent, and its duties should be of a public nature." High Ex. Leg. Rem., § 620. So it has been held that an information will not lie to remove officers of a railroad company who hold office under an election of the directors, as these are merely agents or servants of the company removable at the will of the appointing power. People