it is not even in the case of steam cars negligence per se, for a passenger to stand on the front platform of a moving car. Willis v. Long Island R. Co., 34 N. Y. 670; Hardercamp v. Second Ave. R. Co., 1 Sweeny, 490; Ginna v. Second Ave. R. Co., 67 N. Y. 596. The question is one for the jury, taking into view all the circumstances of the case. Morrison v. Erie R. Co., 56 N. Y. 307; Maguire v. Middlesex R. Co., 115 Mass. 239; Westchester & Phil. R. Co., v. McElwie, 17 P. F. Sm. 311; Musel v. Lowell & B. R. Co., 8 Allen, 234. The cases Phillip v. Rens. & Sar. R. Co., 49 N. Y. 177; Clark v. Eighth Ave. R. Co., 36 N. Y. 135; Ward v. Central Park R. Co., 11 Abb. Pr. N. S. 411; Solomon v. Central Park R. Co., 1 Sweeny, 298, distinguished. (2) Upon the question of negligence of defendant the evidence was unsatisfactory,conflicting, and the inferences to be drawn doubtful, but the question came up on a motion for a nonsuit which was denied. Held, that this ruling must be sustained. Belton v. Baxter, 58 N. Y. 415; Cook v. N. Y. Cent. R. Co., 3 Keyes, 476; Ochsenbier v. Shapely, 85 N. Y. 99. In this case the car driver suddenly whipped one of the horses; the animal plunged terribly under the blow and caused a jar which coming without warning threw plaintiff off; the driver undertook to stop the car by applying the brake, but failed because the brake chains were twisted and the brake kicked out of his hand, and before he could stop the car plaintiff was run over and injured. Held, enough to put defendant on its defense and carry the case to the Jury. Judgment affirmed. Nolan v. Brooklyn City & Newtown Railroad Co. Opinion by Finch, J.

[Decided Nov. 22, 1881.]

USURY

INTEREST FOR MONEY HELD BY LENDER'S AGENT AT BORROWER'S REQUEST NOT MISTAKE IN COMPUTATION.-(1) Plaintiff placed money in the hands of her agent upon an agreement for a loan of the same to defendant, defendant requesting that the agent should hold the same for him and agreeing to pay interest therefor. The agent held the money for some months and then paid the same to defendant who gave a bond and mortgage therefor. Interest was retained for the time the money was held. Held, that this did not make the loan usurious, even though the agent, without plaintiff's authority, used the money while with him for his own purposes. Nourse v. Prinn., 7 Johns. Ch. 77; Thomas v. Murray, 32 N. Y. 605; Thurston v. Cornell, 38 id. 281; Dowdell v. Lenox, 2 Edw. Ch. 267. (2) In computing interest twenty days too much were counted and $11.66 more than lawful interest retained. This was done by inadvertence and mistake. Held, not a violation of the statute against usury. The defendant had the burden of proving usury and was not relieved when it appeared that this sum was retained by the lender. Matthews v. Coe, 70 N. Y. 239. A simple mistake, there being no agreement, will not make a loan usurious. See Marvine v. Hymers, 12 N. Y. 223; Fiedler v. Darrin, 50 id. 443; Guson v. Stearns, 3 N. H. 185. The excess taken could be properly applied in diminution of the amount due on the mortgage. Guggenheimer v. Geiszler, 81 N. Y. 293. Judgment affirmed. Bevier v. Covell. Opinion by Danforth, J. [Decided Nov. 22, 881.]

UNITED STATES SUPREME COURT ABSTRACT.

SHERIFF -PROTECTED BY PROCESS OF COMPETENT COURT HAVING JURISDICTION-NOT LIABLE FOR SALE OF GOODS OF BANKRUPT UNDER PROCESS OF STATE COURT IF WITHOUT OFFICIAL NOTICE OF BANKRUPTCY. -On July 20, 1875, a warrant of attachment was duly issued in an action commenced on that day by one Dickerson against one Spaulding in the Supreme Court

of the State of New York, the defendant being a nonresident. Conner, the defendant below, as sheriff of the county of New York, to whom the warrant of attachment was directed, levied it, on the same day, on the personal property in controversy in this action, being a quantity of straw 'goods, and the property at the time of Spaulding. Three days later certain creditors of Spaulding, represented in this action by the assignee Long, the plaintiff below, instituted bankruptcy proceedings against him in the United States District Court for Massachusetts, and on September 4th he was adjudged a bankrupt. In the meantime, and after the filing of the petition in bankruptcy, the sheriff, Conner, acting under an order of the Supreme Court of the State of New York, in the attachment suit aforesaid, sold the property levied on by him and the proceeds were used to satisfy the judgment rendered in favor of Dickerson. The assignee in bankruptcy of Spaulding then brought this action against the sheriff to recover damages for the wrongful sale of the property mentioned, after the institution of bankruptcy proceedings. Held, that the sheriff was not liable. He is not liable as an individual for his acts as an officer, when such acts are performed under a mandate of a competent court and without the exercise of any individual discretion. The State court had full jurisdiction until the institution of the proceedings in bankruptcy, but the fact of those proceedings, which put an end to its jurisdiction, did not appear by its own record, and consequently was one of which the sheriff did not have official notice, and without such notice he was bound to obey the order of the court directing the sale of the property, and no liability attaches to him individually as a consequence of such obedience. The court say that in Johnson v. Bishop, 1 Woolworth, 324, it was said: "No court is bound to take judicial notice of the proceedings of another court. If material to a controversy before it, it must be informed thereof by the pleadings, and if the allegations are denied, they must be proven by the record. The State court can have no knowledge or even notice of the proceedings in the Federal court, by which its right to possess and adjudicate the property in question is affected. It should be informed in a proper way of those proceedings, before its possession is interfered with or assailed." And in support of this conclusion reliance was had upon the cases of Hogan v. Lucas, 10 Pet. 400; Pulliam v. Osborne, 17 How. 471; Taylor v. Carryl, 20 id. 583; Freeman v. Howe, 24 id. 450; Ex parte Dorr, 3 id. 103; and Buck v. Colbath, 3 Wall. 334. The principle of this decision was expressed in the opinion of the court in the case of Doe v. Childress, 21 Wall. 642, in which Hunt, J., said: "Where the power of a State court to proceed in a suit is subject to be impeached, it cannot be done except upon an intervention by the assignee, who shall state the facts and make the proof necessary to terminate such jurisdiction; and adding: "This rule gains, whether the four months' principle is applicable or whether it is not applicable." It is true ordinarily and in the case of private persons, acting voluntarily, that in case of a conversion of the goods of another, in which both principal and agent are concerned, both are severally liable, and the servant cannot justify under orders from a master; for, as was said by Lord Ellenborough in Stephens v. Elwell, 4 Maule & Sel. 259, "a person is guilty of a conversion who intermeddles with my property, and disposes of it; and it is no answer that he acted under authority from another, who had himself no authority to dispose of it." But this rule has its limitations, and does not apply even in cases of private persons exercising a public employment, when the act complained of is in the discharge of a duty to the public incident thereto; as in Greenway v. Fiske, 1 Car. & Payne, 190, where the defense was that the defendant, who was a common carrier, had merely

shipped the goods in the ordinary course of business, Abbott, C. J., said: "The distinction between this case and that of a servant, is that here there is a public employment; and as to a carrier, if while he has the goods there be a demand and a rsfusal, trover will lie; but while he is the mere conduit pipe in the course of trade, I think he is not liable." And such undoubtedly is the law. The reason and policy of it apply with even greater force to a person acting in an official capacity, such as a sheriff, where the act for the consequences of which it is sought to make him liable, is the direct and express command of a court, whose precepts he is under the highest obligation to obey without question and without hesitation. The rule of duty and of liability is thus stated with admirable force by Hosmer, C. J., in Watson v. Watson, 9 Conn. 146: "Obedience to all precepts committed to him to be served, is the first, second, and third part of his duty; and hence if they issue from competent authority, and with legal regularity, and so appear on their face, he is justified for every action of his, within the scope of their command." The action in that case was replevin, and the following extract from the same opinion is pertinent to the present inquiry. The learned judge said: "It was said in the argument of this case that no difference exists as to the proceedings of an officer, if the plaintiff has no property in the goods to be replevied, between the taking of property on a replevin, and the taking of the goods of A. upon a process commanding him to take the goods of B.; that is, the caption in both cases is equally a trespass. No remark can be more unfounded, for the difference is immense and distinctly marked. In the case of tho replevin, the officer does what by legal authority he is commanded to do; and in the other case, he does what he was commanded not to do. In replevin, the property is identified and described, and the command is, take this specific property. In the case of a process commanding the taking of the goods of A. without any identification or description, the command is, take the goods of A., if any such there be, but not the goods of any other person. From the nature of the case last put, the officer must act on his own inquiry, and is bound to all the responsibility of his action." So in Savacool v. Boughton, 5 Wend. 170, the rule was correctly stated by Marcy, J., that if the subject-matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction arising from some other cause, for example, as to the person or place, the officer who executes process issued on such suit is no trespasser, unless the want of jurisdiction appears by such process. The same rule was sustained by Nelson, C. J., in Webber v. Gray, 24 Wend. 485. In Wilmarth v. Burt, 7 Metc. 259, Shaw, C. J., said: As a general rule the officer is bound only to see that the process which he is called upon to execute is in due and regular form, and issued from a court having jurisdiction of the subject. In such case he is justified in obeying his precept, and it is highly necessary to the due, prompt, and energetic execution of the commands of the law that he should be so." To the same effect are Twitchell v. Shaw, 10 Cush. 46, and Clark & Whipple v. May & Kent, 2 Gray, 410. The same principle was applied to the proceedings of a court-martial, by this court, in Dynes v. Hoover, 20 How. 65. It is entirely true that the act of Congress prescribing a uniform rule as to bankruptcies, passed in pursuance of an express grant of power in the Constitution of the United States, is the paramount law throughout the territorial jurisdiction of the National government. It is as truly the law of each State, as it is, and because it is, a law of the United States. The assignment in bankruptcy made in one district, so far as its operation is matter of law, operates with the same effect in all districts. And it operates upon the title to the property of the bankrupt wherever it is situate, so as to

preserve it, according to the provisions of the act, for distribution under it, and so that the title shall pass, as it requires, without regard to any dealing with it, which it forbids. Whatever hardship, if any, may follow to privato persons who sell or buy it, and attempt to divert it to their own use, falls upon them, as in other cases, where titles fail, even in the hands of innocent, because ignorant, purchasers. But they are volunteers, seeking only their private interests, and take the chances of all the consequences of their conduct. The maxim to which they are subject is "caveat emptor." It is not so with the sheriff, who as a public officer of the court, obeys its precepts, regular on their face, without notice of any want or failure of jurisdiction; who is not at liberty to exercise any discretion, and has no choice but to obey. The language of Miller, J., in delivering the opinion of this court in Eyster v. Gaff, 91 U. S. 524, though spoken in reference to a different state of facts, is applicable to the present case. "It is a mistake," he said, "to suppose that the bankrupt law avoids of its own force all judicial proceedings in the State or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition. The court in the case before us had acquired jurisdiction of the parties and of the subject-matter of the suit. * * * It could not take judicial notice of the proceedings in bankruptcy in another court, however seriously they might have affected the rights of the parties to the suit already pending." There is no language in the bankrupt act that either expressly or by any necessary implication requires us to hold the offcer liable in such circumstances; nor is its policy defeated or thwarted by refusing to do so. The opposite conclusion is based upon an inference from the doctrines relating to the conversion of personal property, and in our opinion, is the result of a misapplication of the principle invoked. The court below took a different view of the law, following a prior decision in the same Circuit in Miller v. O'Brien, 9 Blatch. 270, in which the Circuit judge, Woodruff, said: "It accords with our sense of justice to say that they (sheriffs,) ought not to be held liable for their acts in the execution of process done in good faith, without actual notice of any proceedings in bankruptcy against the debtor," but nevertheless felt constrained to adopt "the reasoning and the principles upon which the question was settled in England under the bankrupt law of that country," referring to Balme v. Hutton, 9 Bing. 471, and Garland v. Carlisle, 4 Clark & Fin. 693. See also Cooper v. Chitty, 1 Burr, 20. The court says in conclusion: "The question is now a new one in this court and we are not fettered by an inveterate course of decisions upon it. We are at liberty, in view of all appropriate considerations, to decide it upon reason and not by precedent. And we are satisfied, upon grounds already stated, that in doing so we shall reach conclusions entirely satisfactory and supported, as we believe, by recognized principles of law. It is a sufficient reason in our judgment for not following the English decisions, that in 1839, shorly after the House of Lords had declared its inability to disregard the course of previous decision, Parliament recognizing the injustice and inexpediency of the rule thus finally established, judicially interposed by the act of 2d and 3d Vict., c. 29, and by several successive acts, which had the effect to protect the sheriff in the performance of his official duty against such actions as the present. Indeed, some relief had been introduced by the bankrupt act of 6 Geo. 4, c. 16, passed in 1825. Edwards v. Scarsbrook, 3 B. & S. 280; Slater v. Pinder, L. R., 6 Exch. 234. This legislation we regard as evidence of the highest character that the rule in question ought never to have been judicially established. Its effect was not so much to change as to restore the law. It was in fact a legislative rever

sal of the judgment of the House of Lords. It cannot be assumed that Congress intended, in the bankrupt act of 1867, to restore a rule of liability which had become obsolete in England nearly thirty years before." Judgment of U. S. Circ., Ct. S. D. New York, affirmed. Conner v. Long. Opinion by Matthews, J.

[Decided Dec. 5, 1881.]

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
APRIL, 1881.

DAMAGES BREACH OF CONTRACT TO SUPPORT. — In an action brought for a breach of a contract to support a certain person, held, that damages could be assessed only up to the time of the writ and not thereafter up to the time of the verdict. The rule is this: If the damages subsequent to the date of the writ are merely incidental to the cause of action declared on, such damages are to be assessed if they are sustained up to the time of the verdict, and even in some cases, indefinitely beyond; but if the damages sustained after the date of the writ are such as are not merely incidental to and growing out of the cause of action, but may be the damages arising from a new breach or a new cause of action, they cannot be so assessed. See Badger v. Titcomb, 15 Pick. 509; Warner v. Bacon, 8 Gray, 397. Fay v. Guynon. Opinion by Lord, J.

LEASE- -SUB-TENANT AND ASSIGNEE. - One Ostrom held as lessee from plaintiff a lease of premises which expired in twenty-two years from 1855, at a fixed rent, payable quarterly. It contained a covenant to pay taxes. In 1868 Ostrom leased the premises with buildings erected since the date of the original lease, to one Johnson, for a term equal to the whole of the unexpired term of the original lease, but at an increased rent payable monthly. The last named lease also contained covenants on the part of the lessee to pay rent and taxes, and that the lessor might enter and take possession for breach of covenant, and that the lessee would quit and deliver up the premises to the lessor at the end of the term. This lease was assigned by Johnson to the defendant. Thereafter taxes were assessed which were not paid by defendant. In an action by plaintiff against defendant for such taxes, held, that defendant was a sub-lessee of Ostrom and not an assignee of the original lease, and was not liable to plaintiffs on the covenant therein to pay taxes. To constitute an assignment of a leasehold interest, the assignee must take precisely the same estate in the whole, or in a part of the leased premises, which his assignor had therein. He must not only take for the whole of the unexpired term, but he must take the whole estate, or in other words, the whole term. 2 Bl. Com. 144. The grant of an interest therefore which may possibly endure to the end of the term is not necessarily a grant of all the estate in the term. If by the terms of the conveyance, be it in the form of a lease or an assignment, new conditions with a right of entry, new causes of forfeiture, are created, then the tenant holds by different tenure, and a new leasehold interest arises which cannot be treated as an assignment, or a continuation to him of the original term. When an estate is conveyed to be held by the grantee❘ upon a condition subsequent, there is left in the grantor a contingent reversionary interest. See Austin v. Cambridgeport Parish, 21 Pick. 215; Brattle Square Church v. Grant, 3 Gray, 142. If the smallest reversionary interest is retained, the tenant takes as sub-lessee and not as assignee. The law in this Commonwealth is settled by the cases of Patten v. Deshon, 1 Gray, 325, and McNeil v. Kendall, 128 Mass. 245. Dunlop v. Bullard. Opinion by Colt. J.

WILL-CONSTRUCTION OF-ANNUITY PAYABLE FROM PRINCIPAL. The plaintiff, by the will of her husband, was given the use of a portion of his real estate and an annuity of $1,000 during life, to be paid from the income of all his property. By the last clause in the will, the residue of his estate, real and personal, was given to his daughter, after the payment of debts, expenses and "the legacies therein before mentioned." Held, that the gift to plaintiff was the gift of a fixed sum, which was to be paid annually, and which was not made contingent or dependent upon the income of any specific portion of testator's property. The annuity was no more a specific legacy than a legacy charged generally upon real estate. It was rather in the nature of a demonstrative legacy, which has a prior right to payment out of the fund charged, but is payable at all events out of the principal of the estate if the fund proves inadequate. Boyd v. Burkle, 10 Sim. 595; Stewart v. Chambers, 2 Sand. Ch. 382; Pierrepont v. Edwards, 25 N. Y. 128; Wilcox v. Wilcox, 13 Allen, 252; Richardson v. Hall, 124 Mass. 228. Smith v. Fellows. Opinion by Colt, J.

NEBRASKA SUPREME COURT ABSTRACT.

CHATTEL MORTGAGE-RECORDED WITHOUT PROPER ACKNOWLEDGMENT VOID, AND PROPERTY ASSETS IN HANDS OF RECEIVER OF INSOLVENT MORTGAGOR. — A Nebraska statute provided that a mortgage of chattels where there was no change of possession, should, unless recorded, be void "as to all creditors and subsequent purchasers," and that a mortgage should not be deemed lawfully recorded unless previously acknowledged in the manner prescribed. Held, that a mortgage not properly acknowledged, though actually recorded, was invalid as to creditors, and if the mortgagor died leaving an insolvent estate, the mortgaged chattels were assets in the hands of his executor, for the payment of creditors. In Kilbourne v. Keller, 29 Ohio St. 264, the court held that where a chattel mortgage is declared void by the statute as against the creditors of the mortgagor," and the mortgagor dies in possession of the mortgaged property, leaving an insolvent estate, such property becomes assets in the hands of the executor or administrator of the mortgagor. In that case the mortgage seems to have been in proper form, but was not filed, and it was held void as to creditors. Becker v. Anderson. Opinion by Maxwell, C. J.

[Decided July 7, 1881.]

66

BURDEN OF PROOF-NOTICE TO SUBSEQUENT PURCHASERS WHERE NOT FILED NOT PRESUMED.-Under a statute providing that every mortgage of goods and chattels, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against creditors of the mortgagor, and as against subsequent purchasers in good faith, unless the mortgage or a true copy thereof be filed in the office of the county clerk of the county where the mortgagor executing the same resides, or in case he is a non-resident of the State, then in the office of the clerk of the county where the property mortgaged may be at the time of executing such mortgage, etc., held, that where one purchased a mortgaged chattel, the mortgage not being filed, he was, in the absence of proof to the contrary, presumed to be a bona fide purchaser, and the burden of proof in an action by the mortgagees against the vendee of the mortgagor, for the conversion of the chattel, was on the mortgagees to show that he had notice of their mortgage. Fort v. Burch, 6 Barb. 78; Center v. Bank, 22 Ala. 743; McCormick v. Leonard, 38 id. 272; Miles v. Blanton, 3 Dana, 525; Van Wagener v. Hopper, 8 N. J. Eq. 707. The reason is, the first purchaser being

entitled to hold and enjoy the property thus purchased, he is equaily entitled to sell the same. Alexander v. Pendleton, 8 Cranch, 462; Jackson v. Given, 8 Johns. 141, Ruinphus v. Platner, 1 Johns. Ch. 219; Demaret v Wyncoop, 3 id. 147. Rogers v. Pierce. Opinion by Maxwell, C. J.

[Decided Nov. 12, 1881.]

NEGLIGENCE -IN RUNNING RAILROAD TRAIN-PRESUMPTION FROM SPEED. That a railroad train ran at a speed of eighteen miles on hour within the corporate limits of a city, held, in an action for killing an animal, to be not alone sufficient to show gross negligence. No arbitrary rule as to the rate of speed at which a train of cars may not be run, with due regard to the safety of persons and property, can be applicable to all portions of a town or city alike. Evidently a rate which in one portion, or under certain circumstances, might be entirely reasonable, in another and more thickly inhabited portion, or under different circumstances, would very justly be deemed unwarrantable, and evince a most reckless disregard for the rights both of persons and property. As showing that speed aicne, even although it be at an unlawful rate, is not sufficient to fix a liability for an injury, the case of Brown v. Buffalo & State Line R. Co., 22 N. Y. 191, is in point. That was an action for damages caused by the killing of the plaintiff's intestate at a street crossing in the city of Buffalo. It appeared that there was an ordinance prohibiting the running of trains within the city faster than a certain rate, with a fixed penalty for exceeding it. On the occasion of the injury complained of, the speed of the train was greater than the ordinance permitted, and the court charged the jury that this fact alone constituted negligence on the part of the railroad company, for which it was liable if the intestate were himself without fault. This instruction the Court of Appeals held to be erroneous, and ordered a new trial. See also, on this point, Cincinnati, etc., R. Co. v. Lawrence, 13 Ohio St. 66. & Missouri River Railroad Co. v. Went. Lake, J.

[Decided Nov. 12, 1881.]

Burlington Opinion by

WISCONSIN SUPREME COURT ABSTRACT. OCTOBER 18, 1881.*

EQUITABLE ACTION -REFORMATION OF DEED FOR MISTAKE OR FRAUD. In the absence of fraud a conveyance will not be reformed without proof that previous to its execution there was a mutual agreement for the sale and purchase of a parcel of land different from that described in the deed, and that the misdescription was inserted by mistake. Where reformation is sought on the ground of mutual mistake only, and it appears that the sale was as alleged in the complaint, and that the deed was accepted through a mistake on plaintiff's part, and the evidence received without objection also shows clearly and satisfactorily that the misdescription was inserted either through mistake or fraud on defendant's part, the deed should be reformed. Courts of equity will reform conveyances-first, where there is a mutual mistake; and second, where there is a mistake by one party, and fraud in the other in taking advantage of it, and thus obtaining a contract with the knowledge that the party dealing with him is in error in regard to its terms, or its sufficiency to effectuate the real contract made between the parties. Welles v. Yates, 44 N. Y. 525; Bryce v. Lorillard Ins. Co., 55 id. 240; Paine v. Jones, 75 id. 593; Whittemore v. Farrington, 76 id. 452; Jarnatt v Cooper (Cal.), 13 Cent. Law J. 251, DePeyster v. Hasbrouck, 11 N. Y. 582; Barlow v. Scott, 24 id. 40; Rider v. Powell, 28 id. 310; Dane v. Derber, 28 Wis.

* Appearing in 52 Wisconsin Reports

EVIDENCE-IN ACTION FOR CONVERSION-WHAT MAY BE SHOWN UNDER GENERAL DENIAL.-It seems to be well settled that in an action for the wrongful conversion of personal property, under the general denial the defendant is entitled to give in evidence any facts which disprove the plaintiff's title to the property in controversy, and also any facts which disprove a conversion by the defendant. Timp v. Dockham, 32 Wis. 146: Delaney v. Cuming, 8 N. W. Rep. 897; Edgerly v. Bush, 16 Hun, 80 Robinson v. Frost, 14 Barb 538; Rost v. Harris, 12 Abb. Pr. 446; Stoddard v. Onondaga Ann. Con. 12 Barb. 573; Jones v Sheboygan R. Co., 42 Wis. 306. Phoenix Mutual Life Insurance Co. v. Walrath. Opinion by Taylor, J.

FRAUD

PRESUMPTION OF LAW PURCHASE OF LANDS BY ONE WITH FUNDS OF ANOTHER-BURDEN

OF PROOF-BONA FIDE PURCHASER. — (1) Where A., occupying a confidential relation to B., is intrusted by B. with money to buy lands, and on making such purchase and paying the consideration from the money so furnished, takes the deed to himself, but in the assumed surname of B., it must be presumed that he took such conveyance to himself by mistake or inadvertence, and without B.'s knowledge and consent, or in fraud or violation of the trust so imposed. Garfield v. Hatmaker, 15 N. Y. 475, Wood v. Robinson, 22 id. 564; McCartney v. Bostwick, 32 id. 53, Everett v, Everett, 48 id. 218; Day v. Roth, 18 id. 448; Lounsbury v. Purdy, id. 515; Sieman v. Schurck, 29 id. 612; Fairchild v. Fairchild, 5 Hun, 407; Foote v. Bryant, 47 N. Y. 544; Fisher v. Forbes, 22 Mich. 454. (2) One who claims that the money so furnished was in fact a loan, gift, or advancement, has the burden of proving it. (3) One claiming title as devisee of A., in such a case, is not entitled to the protection of a bona fide purchaser for a valuable consideration, especially where at the times of the making of the devise and of A.'s death, B. was occupying the premises with his family as a homestead. Kluender v. Fenske. Opinion by Cassoday, J.

PARTNERSHIP - CLAIM FOR SERVICES TO FIRM AND TO SURVIVING PARTNER MAY BE JOINED IN ONE ACTION-STATUTE OF LIMITATION-INTEREST.—(1) Services, part of which were rendered to a firm of which defendant is the surviving partner, and the other part, under the same contract, to defendant alone, may be sued upon as a single cause of action. It was held in Hyat v. Hare, 1 Cowp. 383, that "if there be two partners in trade, and one of them buy goods for them both, and the other died, the survivor may be charged by indebitatus assumpsit generally, without taking notice of the partnership, or that the other is dead and he survived." This was followed in Goelet v. McKinstry, 1 Johns. Cases, 405. In Richards v. Heather, 1 Barn. & Ald. 29, the facts were substantially the same as here. The declaration was for work and labor, containing only one set of counts, charging the defendant in his own right; and at the trial the plaintiff proved two distinct demands-one due from the defendant individually, and the other for work done for himself and another, who was dead - but a verdict was directed for the whole, and the same was sustained by the King's Bench. The same rule exists under a sale. Voorhis v. Childs, 17 N. Y. 356; Lachaise v. Libby, 13 Abb. Pr. 6: McVean v. Scott, 46 Barb. 384. (2) Where one employed by the month, and entitled to his wages at the end of each month, fails to collect them, and continues in such employment by the month for more than six years, that part of the wages which accrued more than six years before suit, is barred by the statute. Davis v. Gorton, 16 N. Y 235; Turner v. Martin, 4 Robertson, 661: Mims v. Sturtevant, 18 Ala. 359. In