family, and that unsuspicious of the object he had in view and relying upon his statement, she was induced to proceed with him to a disreputable house, where the defilement was effected. She opposed and resisted the act and made a fruitless effort to escape. Held, that the charge of the indictment was sustained. Prosecutrix did not voluntarily go to the house for the purpose of being defiled. It was contrary to her will to become the inmate of such a house, and she neither contemplated nor expected any such result. She was an unwilling victim of misrepresentation, fraud and falsehood. She was taken unlawfully against her will, within the meaning of the statute. The taking of the plaintiff was against her will also for the reason that she had another and a different object in view than that which was intended to be and actually was attained by defendant, and the taking her by defendant under the circumstances, as well as the subsequent acts of those who co-operated with him, was against her will or consent. Under the statute, even without force, the taking may be against the will and actual force by personal violence is not required. Laws 1848, chapter 105, section 1, which provides against inveigling, enticing or taking for the purpose of prostitution, does not apply. That has reference to a case where artifice or persuasion is employed, and the end attained without coercion. Judgment of conviction affirmed. Beyer v. People of New York. Opinion by Miller, J. [Decided Oct. 11, 1881.] DOWER-RIGHT TO HAVE APPORTIONED - LIABLE FOR DEBTS OF DOWRESS. - A widow's right or claim of dower is property that like every other species of property may be reached and applied to the payment of her debts. In this action by a receiver, the complaint stated the recovery of a judgment against the defendant B., the usual steps for its enforcement, and those failing, proceedings supplementary to execution in behalf of the judgment creditor, and the appointment of plaintiff as receiver of the property of the judgment debtor. She was formerly the widow of one N., and as his widow entitled to dower in certain lands described in the complaint, of which he was seized. They are now owned by his children and heirs, subject to her right of dower, and the children, with her and her present husband, are in possession thereof. The complaint also stated that in pursuance of the order appointing plaintiff receiver, she conveyed to him, in writing, her dower and right of dower therein, that it has never been assigned to her, and that the said right of dower may be applied to the satisfaction of the judgment, it is necessary, among other things, that the dower interest be admeasured and set off and the plaintiff let into possession. After alleging permission of the court to bring the action, plaintiff demands judgment, that the interest so conveyed to him be ascertained and the said dower right admeasured and set off to the plaintiff as such receiver, etc. Held, that the complaint contained sufficient facts to sustain an action and an order sustaining a demurrer thereto was erroneous. See Tompkins v. Fonda, 4 Paige, 448. Also Elmendorf v. Lockwood, 57 N. Y. 322; Marvin v. Smith, 46 id. 574; Stewart v. McMartin, 5 Barb. 438; Moak v. Coats, 33 id. 498; Chautauqua Co. Bk. v. White, 6 id. 596. In this case plaintiff takes as assignee of the chose in action, and must sue therefor in his own name. Old Code, § 111; Code Civ. Pro., § 449. This was so held in Indiana, under a Code similar to that of New York. Strong v. Clem, 12 Ind. 37. The case, Jackson v. Aspell, 20 Johns. 411, distinguished. See also, Potter v. Everett, 7 Ired. Eq. 152. Order and judgment reversed. Payne v. Becker. Opinion by Danforth, J. note the answer set up as a defense that after the making and delivery of the note the same was materially altered by the plaintiff, without the knowledge of the defendant, by changing the date thereof from April 1, 1872, to April 1, 1873. Held, that the alteration alleged was a material one and the answer was not sham or frivolous, and an order striking it out as such was erroneous. Held, also, that it was not the province of the court, without proof, to decide the question of fact raised by the answer, upon a mere inspection of the note in question. Order reversed. Rogers v. Vosburgh. Opinion by Miller, J. [Decided Dec. 15, 1881.] SPECIFIC PERFORMANCE — COVENANT TO ABSTAIN FROM ACT, WITH STIPULATED PENALTY FOR BREACH, DOES GIVE COVENANTER OPTION TO DO ACT UPON PAY ING PENALTY. - In a deed of land from H. to S., the grantee covenanted with the grantor not to erect or cause to be erected any building or erection on a specified part of the conveyed premises adjoining the southerly line of the remaining land of grantor, and following this covenant were the words, "and for a violation of the covenant the said party of the second part, for himself, bis administrators and assigns, hereby covenants and agrees to pay the said party of the first part, their heirs, etc., the sum of fifteen hundred dollars, liquidated damages." In an action by the successor in title of H. to the land not embraced in the deed to S., to restrain the successor in title of S. from erecting a building upon the land embraced in the covenant in such deed, held, that S. and his assigns did not have the option to leave the specified land vacant or to build upon it upon payment of the sum specified as damages. The general rule in equity, as stated by Lord Hardwicke, in Howard v. Hopkins, 2 Atk. 371, is that "in all cases where penalties are inserted, in case of a non-performance (of a contract) this has never been held to release the parties from their agreement, but they must perform it notwithstanding." The rule deduced from the authorities is that when there is a covenant to do or not to do a particular act, under a penalty, the covenantor is bound to do or refrain from doing the very thing, unless it appears from the particular language, construed in the light of the circumstances, that it was the intention of the parties that the payment of the penalty should be the price of non-performance, and to be accepted by the covenantee in lieu of performance. Chilliner v. Chilliner, 2 Ves. Sr. 528; French v. Macale, 2 Dr. & War. 229; Gray v. Crosby, 18 Johns. 219. The question to be considered in such cases is what was the primary intent of the agreement. If it was that the covenant should be performed, the annexing of a penalty is regarded merely as security for the performance of the covenant and not as a substitute for it. It makes no difference in the construction of the covenant whether damages for non-performance are left to be ascertained by an issue quantum damnificatus or the parties conclusively settle the amount. Coles v. Sims, 5 DeG., McN. & G. 99; Long v. Bowring, 33 Beav. 585; Clark v. Jones, 1 Den. 516. In the case at bar the covenant against building is absolute and unqualified, and the damages fixed in the second clause are given for a violation of the prior covenant and not as a substitute for its non-observance. And the circumstance that the purpose of the covenant was to secure an open space for light and air to a building which could procure it in no other way, justified a finding by the court that it was the intention of the parties to secure a performance of the very thing covenanted for. The defendant purchased with full notice of the covenant. Held, that the action to restrain the erection of the building would lie in favor of plaintiff. See Whitney v. Union R. Co., 11 Gray, 364. Also Hills v. Miller, 3 Paige, 254; Trustees of Watertown v. Cowen, 4 id. 510; Barrow v. Richard, 8 id. 351; Trustees, etc., v. Lynch, 70 N. Y. 440. Judgment affirmed. Phoenix Insurance Co. v. Continental Insurance Co. Opinion by Andrews, C. J. [Decided Jan. 17, 1882.] UNITED STATES SUPREME COURT ABSTRACT. COVENANT-WHAT DOES NOT CONSTITUTE -PERSON NOT PARTY AND UNHEARD NOT BOUND BY JUDGMENT. (1) In May, 1864, the Oregon Steam Navigation Company, then engaged in the transportation, for hire, of freight and passengers on the Columbia river and its tributaries, purchased a steamboat, called the New World, from the California Steam Navigation Company, then engaged in like business upon the rivers, bays and waters of the State of California. The written agreement of sale provided in consideration of a sum named, that the vendee should not run the vessel or her machinery on the waters of California for ten years. In February, 1867, the Oregon company sold the steamer to Winsor Hale and others, Winsor executing back an agreement not to run the vessel or her machinery on the waters of California, or of the Columbia river or tributaries, for ten years. On the 5th of March, 1867, Winsor, conveyed the vessel to Hale, with covenants of warranty. In November, 1867, Hale executed to Finch a bill of sale, reciting a consideration of $50,000, and containing, among others, the following clauses: "And I, the said Calvin H. Hale, have, and by these presents do promise, covenant, and agree, for myself, my heirs, executors and administrators, to and with the said Duncan B. Finch, his heirs, executors, administrators and assigns, to warrant and defend the whole of said steamboat New World, her engines, boilers, machinery, and all the other beforementioned appurtenances, against all and every person and persons whomsoever. "And it is understood and agreed that this sale is upon this express condition, that said steamboat or vessel is not, within ten years from the first day of May, 1867, to be run upon any of the routes of travel on the rivers, bays or waters of the State of California, or the Columbia river or its tributaries, and that during the same period last aforesaid the machinery of the said steamboat shall not be run, or be employed in running, any steamboat or vessel or craft upon any ofthe routes of travel on the rivers, bays or waters of the State of California, or the Columbia river and its tributaries." Held, that the language used did not import a covenant upon the part of Finch, that he would not use or permit the use by others, of the steamboat or its machinery, within a prescribed period, either upon the waters, rivers and bays of California, or upon the Columbia river and its tributaries, but only a condition, for breach of which the vendor had no remedy other than by suit to recover the property sold. The words are precise and unambigious. No room is left for construction. It is undoubtedly true, that neither express words of covenant, nor any particular technical words, nor any special form of words, are necessary in order to charge a party with covenant. 1 Roll. Abridg. 518; 1 Burr. 290; 1 Vesey, 516; Sheppard's Touchstone, 161, 162; Courtney v. Taylor, 7 Scott, N. R., 765; 2 Pars. on Cont. 510. "The law," says Bacon, "does not seem to have appropriated any set form of words which are absolutely necessary to be made use of in creating a covenant." Bacon's Abridgment, Covenant, A. So in Sheppard's Touchstone, 161-2, it is said: "There need not be any formal words, as 'covenant,' promise,' and the like, to make, a covenant on which to ground an action of covenant, for a covenant may be had by any other words, and upon any part of an agreement in writing, in whatso ever words it be set down, for any thing to be or not to be done, the party to or with whom the promise or agreement is made may have his action upon the breach of the agreement." Sometimes words of proviso and condition will be construed into words of covenant when such is the apparent intention and meaning of the parties." 2 Pars. on Cont. 510-11. There are also cases in the books in which it has been held that even a recital in a deed may amount to a covenant. Farroll v. Hilditch, 5 C. B. N. S. 852; Great Northern R. W. Co. v. Harrison, 12 C. B. 609; Severn v. Clark, 1 Leon, 122. And there are cases in which the instrument to be construed was held to contain both a condition and a covenant; as, "if a man by indenture letteth lands for years, provided always, and it is covenanted and agreed, between the said parties, that the lessee should not alien." It was adjudged that this was "a condition by force of the proviso, and a covenant by force of the other words." Coke Litt. 203 b. But according to the authorities, including some of those above cited, and from the reason and sense of the thing, a covenant will not arise unless it can be collected from the whole instrument that there was an agreement, or promise, or engagement upon the part of the person sought to be charged, for the performance or non-performance of some act. Comyn's Dig. Covenant, A. 2, 3. (2) One not a party to an action, nor notified of its pendency, having no opportunity or right to control the defense, to introduce or crossexamine witnesses, or to prosecute a writ of error from the judgment therein, is not bound by such judgment. Railroad Co. v. National Bk., 102 U. S. 211. Judgment of Washington Supreme Court affirmed. v. Finch. Opinion by Harlan, J. [Decided Dec. 5, 1881.] - Hale By the JURISDICTION OF FEDERAL COURTS. judiciary act of 1789, section 11, it was provided that the District and Circuit Courts of the United States should not "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 recover the said contents if no assignment had been made, except in cases of foreign bills of exchange." By the act of 1875 (ch. 137), this provision was so far modified as to extend the exception to "promissory notes negotiable by the law merchant and bills of exchange," but in section 5 it was enacted "that if in any suit commenced in the Circuit Court, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought, that such suit does not really and substantially involve a dispute of controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable, under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit, and shall make such order as to costs as shall be just." In this case, plaintiff, a citizen of Indiana, sued defendant, a municipal corporation of Michigan, upon bonds issued by it in the Federal Circuit Court. Three of the bonds of $100 each which were negotiable in form, belonged to plaintiff, three others of the same amount belonged to one T., whose residence did not appear, and had been assigned to plaintiff for the purpose of this suit solely, and other of the bonds belonged to citizens of Michigan, and had been assigned to the plaintiff for the same purpose. The Circuit Court directed judgment in favor of plaintiff as to the six bonds owned by himself and T., and in favor of defendant in respect to the other bonds. Upon a writ of error brought by plaintiff, held, that the bonds held by the parties other than T. and plaintiff, were clearly within the prohibition of the acts of 1789 and 1875. Being citizens of Michigan, those parties could not sue in the Federal courts, and 31, 1876. On the 19th of December, 1876, H. had the Belk UNITED STATES CIRCUIT COURT AB STRACT.* FORMER ADJUDICATION DECISION OF PROBATE COURT AS TO INHABITANCY OF INTESTATE. - The general rule, in the language of the court, is that a question of fact once determined and adjudged, by a court hav MINING LAW-STATUTORY CONSTRUCTION -LOCATION AND RELOCATION. By act of Congress of May 10, 1872 (ch. 152, § 3), it was provided that the locators of all mining locations theretofore or thereafter made on any mineral vein, lode or ledge situate on the public domain, their heirs and assigns, where no adverse claim then existed, should have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, so long as they complied with the laws of the United States, and with State, territorial and local regulations, not in conflict with the laws of the United States, governing their possessory title. By section 5 of the same act it was provided that on all claims located prior to the passage of the act, ten dollars' worth of work should be performed or improvements made each year for each one hundred feet in length along the vein, until a patent should have issued therefor, and upon a failure to comply with this condition, the claim or mine on which the failure occurred should be open to relocation in the same manner as if no location of the same had ever been made, provided the original locators, their heirs, assigns or legal representatives had not resumed work on the claim after the failure and before the relocation. By another act, passed March 1, 1873 (ch. 214), the time for making the first annual expenditure, under the act of 1872, was extended to June 10, 1874;ing authority to make the inquiry and adjudication, is and by an act of June 6, 1874 (ch. 220), to January 1, 1875. In this case, in July, 1864, H. located a claim. This claim was valid and subsisting May 10, 1872, and no claim adverse to it then existed. No work was done on it between that date and June, 1875. During that month and before any relocation was made, H. did work on it enough to re-establish his original rights, if such work alone was sufficient to do that. He did no more work at any time thereafter and his claim lapsed at any rate January 1, 1877, by reason of a failure to perform the annual work required by the act of Congress. On the 19th of December, 1876, H. not having for a long time been in actual possession, B. made a relocation and did all that was necessary to establish his claim, if the claim was open for relocation. His entry was peaceable, no one appearing to resist. He did a small amount of work but took no other possession of the property. On the 21st of February, 1877, M. and another defendant herein, entered upon the property peaceably, and made another relocation, doing all that was required to perfect their rights, if the premises were at the time open to them. The possession they had when this suit was begun, was in connection with the title they acquired in that way. Held, that by the work done by H. in June, 1875, the original claim was continued in force and made operative until there could be another forfeiture by reason of the failure of the owner to do the necessary annual work. There could not be a forfeiture until after December conclusively determined, unless the judgment is set aside on appeal to some higher court, or upon some direct proceeding within the recognized rules of law to annul it. Hence, where the statute of the State provided that the administration of the estate of an intestate shall be granted by the County Court when the intestate, "at or immediately before his death, was an inhabitant of the county," etc., the decision of the court on the question of inhabitancy, properly presented for its adjudication, is not open to examination in a subsequent proceeding in a Federal court. Grignon's Lessee v. Astor, 2 How. 338; Ex parte Watkins, 3 Pet. 204; United States v. Arredondo, 6 id. 709; In re Bogart, 2 Sawy. 401; Florentine v. Barton, 2 Wall. 216; Comstock v. Crawford, 3 id. 403; Caujolle v. Ferrie, 13 id. 465; McNitt v. Turner, 16 id. 363; Mohr v. Mannierre, 101 U. S. 424; Haggart v. Morgan, 5 N. Y. 429; Erwin v. Lowrey, 7 How. 172; McCormick v. Sullivant, 10 Wheat. 199; Kennedy v. Bank of Georgia, 8 How. 611; Skillern v. May, 6 Cranch, 267; Washington Bridge Co. v. Stewart, 3 How. 424; Smith v. Kernochen, 7 id. 216; Jones v. League, 18 id. 81; De Sorby v. Nicholson, 3 Wall. 423; Evans v. Gee, 11 Pet. 83; Wickliffe v. Owings, 17 How. 48; Lucas v. Todd, 28 Cal. 185; Haynes v. Meeks, 20 id. 313; Fisher v. Bassett, 9 Leigh, 119; Andrews v. Avory, 4 Gratt. 229; Abbott v. Coburn, 28 Vt. 667; Burdett v. Silsbee, 15 * Appearing in 9 Federal Reporter. Tex. 615; Johnson v. Beazley, 65 Mo. 264; Bumsted v. Read, 31 Barb. 664; Bolton v. Brewster, 32 id. 393. U. 6. Circ. Ct., Oregon, Oct. 20, 1881. Holmes v. Oregon & California Railroad Co. Opinion by Sawyer, C. J. PARTITION -MINING CLAIM NOT SUBJECT OF. The jurisdiction in equity of the Circuit Court of the United States is derived from the Constitution and laws of the United States alone. Hence, a bill for partition, brought in the Circuit Court by the owner of an undivided interest in a mining claim, will be dismissed for want of jurisdiction, as the title to the land remains in the United States. Boyle v. Zacharie, 6 Pet. 658; Robinson v. Campbell, 3 Wheat. 212; United States v. Howland, 4 id. 115; Neves v. Scott, 13 How. 271; Noonan v. Lee, 2 Black, 499; Johnson v. Roe, 1 McCrary, 162.* According to the general principles of equity jurisprudence, as administered in England at the time of the passage of the Judiciary Act, and as administered by Courts of Chancery in this country, except where a different rule is adopted by statute, the holder of a mere possessory interest in land, and not having title thereto, cannot maintain a bill for partition. Such a bill must be filed by one having title to a portion of the premises sought to be partitioned. Horncastle v. Charlesworth, 11 Simons' Ch. 314; Williams v. Wiggand, 53 Ill. 233; Ross v. Cobb, 48 id. 111. U. S. Circ. Ct., Colorado, Oct. 15, 1881. Strettell v. Ballou. Opinion by McCrary, J. PATENT-REISSUE CONTAINING MORE THAN ORIGINAL CLAIM, VOID AS TO NEW CLAIMS. A reissued patent is not valid for every thing which might have been claimed in the original patent, nor does its validity depend wholly upon the fact that the new features attempted to be secured thereby were suggested in the models, drawings, or specifications of the original patent. Hence, where a patentee, in his specifications, claims as his invention a particular part of a machine, and his claims are all limited to that part, a reissue embracing other and distinct portions of the machine is not for the same invention, and is pro tanto void, although the designs accompanying the original patent show all the features contained in the reissue. Russell v. Dodge, 93 U. S. 460; Powder Co. v. Powder Works, 98 id. 126; Manufacturing Co. v. Ladd, 102 id. 408. U. S. Circ. Ct., E. D. Michigan, Nov. 7, 1881. Kells v. McKenzie. Opinion by Brown. D. J. - PRACTICE EQUITABLE ACTION ENJOINING SUIT AT LAW-ORIGINAL PROCESS-SERVICE. — A subpoena or notice, issued on the filing of a bill in equity to enjoin an action at law, is not regarded as an original process or proceeding within the meaning of section 1 of the act of March 3, 1875, nor as within the terms of rule 13 in equity. A bill brought by a defendant to enjoin the suit at law is only ancillary to such suit; but the court may in its discretion order personal service of the subpoena on the plaintiff, if he can be found, in addition to substituted service on his attorney. Authorities cited, Clarke v. Mathewson, 12 Pet. 164; Freeman v. Howe, 24 How. 450; Logan v. Patrick, 5 Cranch, 288; Read v. Consequa, 4 Wash. 174; Ward v. Seabry, id. 426; Dunlap v. Stetson, 4 Mason, 349; Dunn v. Clarke, 8 Pet. 1; Bates v. Delavan, 5 Paige, 299; Doe v. Johnston, 2 McL. 323; Sawyer v. Gill, 3 Woodb. & M. 97; Segee v. Thomas, 3 Blatchf. 11; Kamm v. Stark, 1 Sawy. 547; Lowenstein v. Glidewell, 5 Dill. 325. U. S. Circ. Ct., S. D. New York, Nov. 2, 1881. Cortes Company v. Thannhauser. Opinion by Blatchford, C. J. NORTH CAROLINA SUPREME COURT AB STRACT. OCTOBER TERM, 1881.* EVIDENCE- -OF VALUE OF LAND BY THAT OF NEIGHBORING LAND.-(1) Evidence of the value of a * To appear in 85 North Carolina Reports. tract of land adjoining that retained by the donor in a deed of gift is incompetent to show that the donor did not retain property fully sufficient and available to satisfy existing debts. It has been held in the Court of Appeals of New York, where the inquiry was as to the value of an ice-house, that proof of what another ice-house which the witness had caused to be built cost him, was inadmissible. And again, that in ascertaining the value of a steamboat sunk by collision with the defendant's steamer, it was incompetent to show what another steamer like that of the plaintiff was worth. Blanchard v. Steamboat Co., 59 N. Y. 300; Gouge v. Roberts, 53 id. 619. In Bell v. Herrington, 3 Jones, 320, the plaintiff sued for breach of a covenant to teach certain of his slaves "the ship-carpenter's and caulker's trade," and it was held to be incompetent for defendants to show that the slaves had been employed in their shipyard as other apprentices of the same experience and no distinction made between them, inasmuch as there was no proof, nor any offer to prove, that the other apprentices were properly instructed in the trade which the defendants covenanted to teach. The objection to such testimony is obvious. It tends to raise a collateral issue and divert attention from the proper subject of inquiry before the jury. If the price at which one contiguous tract sold may be shown, so may the price and value of any others adjoining, and these may severally become the subjects of contention and obscure the real point to be determined. (2) One hundred acres lying in Currituck township near the head of Smith Creek, it being the eastermost portion of the farm purchased from my brother and known as the Russell land," is sufficiently described to identify the part cut off, as a distinct tract. Stewart v. Salmonds, 74 N. C. 518. Warren v. Makely. Opinion by Smith, C. J. WHEN PART OF CONVERSATION DRAWN OUT WHOLE COMPETENT.-When a part of conversation between a witness and one deceased is called out by the defendant on cross-examination, the plaintiff is entitled to all that was said in that conversation pertaining to the same subject matter of inquiry. Bridgers v. Bridgers, 69 N. C. 451; Straus v. Beardsley, 79 id. 59; Cabiness v. Martin, 4 Dev. 106; Overman v. Coble, 13 Ired. 1. Roberts v. Roberts. Opinion by Ashe, J. PAYMENT REBUTTAL OF PRESUMPTION OF.Where credits endorsed on a bond are relied on to repel the statutory presumption of payment, it is necessary for the plaintiff to establish by proof aliunde the entry of payment, that the same was made before the presumption arose. William v. Alexander, 6 Jones, 137; Woodhouse v. Simmons, 73 N. C. 30; Grant v. Burgwyne, 84 id. 560; Johnson v. Parker, 79 id. 475; Blue v. Gilchrist, 84 id. 239. White v. Beaman. Opinion by Smith, J. TRIAL-RIGHT TO OPEN AND CLOSE ARGUMENT.The party who asserts the affirmative of an issue has the right to open and conclude the argument; hence a defendant who pleads payment of the note sued on. (admitting its execution) being the affirmant, the onus is upon him to show payment, and he is entitled to open and conclude. Love v. Dickerson. Opinion by Ashe, J. the interest of the latter, while a minor, and for attorney's fees and advances made in his behalf, will not be disturbed unless it is impeached for fraud, unfairness or mistake. The sworn answer of two defendants, and their testimony as to a settlement with a complainant, and its fairness, is not overcome by the testimony of the complainant alone, impeaching its fairness. Bennett v. Walker. Opinion by Sheldon, J. ESTOPPEL-AFTER-ACQUIRED TITLE OF GRANTOR. -Where a party joins in a warranty deed purporting to convey a fee simple estate in a tract of land, an afteracquired interest in him will inure by way of estoppel to his grantee. Dugan v. Follett. Opinion by Mulkey, J. MORTGAGE TO SECURE NOTES PAYABLE AT DIFFERENT TIMES-PRIORITY OF LIEN-INTEREST ON COUPONS DEMAND.-(1) Where several notes, payable at different dates, are secured by a mortgage, the notes, in the absence of any special provision in the mortgage to the contrary, are entitled to payment from the proceeds of the mortgaged property in the order of their maturity. Sargent v. Howe, 21 Ill. 148; Vansant v. Allmon, 23 id. 35; Gardner v. Diederichs, 41 id. 170. But when a deed of trust is given to secure bonds all maturing at the same time, with semi-annual interest coupons thereto attached, and authorizes no sale for the interest alone, but provides that for a default in the payment of interest for the space of six ⚫ months all the bonds shall become due, and thereupon the trustees shall take possession and sell, and from the proceeds, etc., pay all such bonds, or so many as may be outstanding, showing an intention that no sale shall be made except for the whole debt, this rule of priority does not apply, and the holders of bonds upon which the interest has not been paid will have no priority as to the payment of such interest over others upon whose bonds the interest has been paid. Where the holders of bonds secured by deed of trust upon a railroad and its property, in placing a portion of such bonds upon the market, and their agent in selling the same, have not made any representations, or by their conduct done any thing which would be likely to deceive or defraud the persons purchasing bonds of them, they will not be postponed in the payment of the interest on their remaining bouds until the payment in full of the bonds sold by them; nor will they be so postponed from a neglect to inform such purchasers of the fact that the mortgagor had failed to keep the interest paid on their bonds. (2) Interest is properly allowed upon an interest coupon attached to a bond, from and after its maturity, although no such interest is promised in the same. Harper v. Ely, 70 Ill. 581; Clark v. Iowa City, 20 Wall. 583; Town of Genoa v. Woodruff, 92 U. S. 502; Amy v. Dubuque, 98 id. 473. The objection, that to fix the liability to pay interest, a demand at the place of payment and a refusal to pay must have been shown, is answered by Butterfield v. Kinzie, 1 Scam. 445; President of New Hope Bridge Co. v. Perry, 11 Ill. 467, and Wood v. M. S. L. & T. Co., 41 id. 267, which hold directly the reverse; and that is matter of defense to be pleaded and proved by the maker, that he was ready, at the time and place, to pay. The interest, as an incident to the debt, must go with the debt, and in giving priority to the warrants, priority to the interest must follow as a matter of course. Humphries v. Martin. Opinions by Craig and Scholfield, J. J. Where a report is made to the Grand Lodge of the Independent Order of Odd Fellows of Kansas a social and benefit society in accordance with the usual rules, regulations and customs of the order, by a member of a special committee thereof, to whom was referred a petition respecting the expulsion of a member of the order from a subordinate lodge, justifying the subordinate lodge in expelling the member for perjury, and setting forth that the officers of the subordinate lodge were unanimously of the opinion that the statements sworn to by such member in a petition presented by him to the Grand Lodge, were all infamously untrue, is received and adopted by the lodge in the usual course of its business, and thereafter is printed and published in a pamphlet entitled "The Grand Lodge Journal, 1873," in connection with the general and ordinary transactions of the lodge, and in the usual manner of printing and publishing the journal of the records and proceedings of the lodge, for the use of the members of the order, such publication is prima facie privileged. In such a case the occasion and manner of the publication prevent the inference of malice, which the law draws from unauthorized communications, and afford a qualified defense depending upon the absence of actual malice. Kirkpatrick v. Eagle Lodge. Opinion by Horton, C. J. SALE OF PERSONAL PROPERTY — DELIVERY -TITLE. Where the seller of a rick of hay, estimated at thirty-five tons, executes to the purchaser a bill of sale, describing it therein with a sufficient identity to be easily ascertained, and the purchaser delivers a receipt therefor specifying the acceptance of one rick of hay of thirty-five tons, more or less, at $2 per ton, to be credited on the seller's note, and there is an understanding at the time of the execution of the papers, that if the hay in the rack measures more than thirty-five tons, the indorsement on the note is to be increased accordingly, and if it measures less than thirty-five tons, to be decreased to the actual tons of hay in the rick, and there is, according to a custom in the community where the hay is sold, a fixed and standard rule for ascertaining the quantity of hay in the rick by measurement, and nothing further is to be done by the seller to ascertain the quantity of hay in the rick, or to put the hay in condition to be delivered. Held, that the title and possession of the hay passed upon the execution of the bill of sale and receipt. Shepard v. Lynch. Opinion by Horton, C. J. OBITUARY. THEOPHILUS PARSONS. Theophilus Parsons, who was Dane Professor of Law in the Harvard School for over 20 years, died at his residence in Cambridge, Mass., on the 26th ult., in the eighty-fifth year of his age. Prof. Parsons was one of the most eminent of legal authorities of this country, and has left behind him a number of works on jurisprudence which are used as text-books in our law schools, and cited as authorities in the courts. He was the eldest son of Theophilus Parsous, who served as Chief Justice of Massachusetts from 1806 to 1813. He was born in Newburyport, Mass., March 17, 1797, and when three years old was taken to Boston by the removal of his father to that city. There he was brought up and given a preparatory education for Harvard Collage, to which he was admitted in 1811, when only fourteen years of age. He was graduated in the class of '15, Jared Sparks, the historian, John G. Palfrey, and Prof. Convers Francis being among his classmates. His commencement part was an essay, and this feature of college graduating exercises, it has been |