has upon machines sold by himself, of wholly releas ing them from the monopoly, and discharging all claim of the patentee for their use by any body; because such is the effect of the patentee's voluntary act of licensing or selling, in consideration of the sum paid him for the license or sale. Adams v. Burke, 17 Wall. 453. But an infringer does not, by paying damages for making and using a machine in infringement of a patent, acquire any right himself to the fnture use of the machine. On the contrary, he may in addition to the payment of damages for past infringement, be restrained by injunction from further use, and when the whole machine is an infringement of the patent, be ordered to deliver it up to be destroyed. Suffolk Co. v. Hayden, 3 Wall. 315, 320; Root v. Railway Co. 105 U. 8. 189, 198; Needham v. Oxley, 8 L. T. Rep. (N. S.) 604; 8. C., 2 N. Rep. Eq. & C. L. 388; Frearson v. Loe, L. R., 9 Ch. Div. 48, 67. No more does one who pays damages for selling a machine in infringement of a patent, acquire for himself or his vendee any right to use that machine. In the case of a license or a sale by the patentee the rights of the licensee or the vendee arise out of contract with him. In the case of infringe. ment, the liability of infringers arises out of their own Wrongful invasion of his rights. The recovery and sat. isfaction of a judgment for damages against one wrong-doer do not ordinarily confer upon him or upon others the right to continue or repeat the wrong. This view is in accord with the judgment of Vice-Chancellor Wood (afterward Lord-Chancellor Hatherly) in two suits brought by a patentee, the one against the manufacturer and the other against the user, where the plaintiff asked for an injunction against each, for an account against the manufacturer, and for damages against the user, and declined to accept au offer of the user to pay him the like royalties that other persons paid, It was argued in behalf of the user that the patentee was not entitled to damages against him, as well as to an account against the manufacturer, and could not have an account against the seller without adopting the sale, and if he adopted the sale, had no right to get any thing from the purchaser. But the vice-chancellor held that the plaintiff was entitled to an injunction, to an account, or upon his waiving that, to damages against the manufacturer, and also to damages against the user, and said: "With regard to the damages, it has never, I think, been held in this court that an account, directed against a manufacturer of a patented article, licenses the use of that article in the hands of all the purchasers. The patent is a continuing patent, and I do not see why the article should not be followed in every man's hand until the infringement is got rid of. So long as the article is used there is continuing damage." "As to the royalties, I cannot compel the plaintiff to accept the same royalty from these defendants as he receives from others. I cannot in the decree do less than give the plaintiff his full right, and I cannot bargain for him what he may choose or may not choose to do." Penn v. Bibby, L. R., 3 Eq. 308. (3) If one person is in any case exempt from being sued for damages for using the same machine for the mak. ing and selling of which damages have been recovered against and paid by another person, it can only be when actual damages have been paid, and upon the theory that the plaintiff has been deprived of the same property by the acts of two wrong-doers, and has received full compensation from one of them. In that view the case of the patentee, whose right of property under his patent had been invaded, would be analogous to that of one from whom personal property had been *aken. But according to the law of England, as well as of America, the owner of a chattel, which others have taken from him and converted to their own use, is not deprived of his property therein by recovering

judgment for damages against any or all of them without actual satisfaction by somebody. By the law, of England indeed, as declared by its courts, upon technical grounds, the owner of a chattel, who has recovered judgment for its value in trover against oue of two joint tort-feasors, cannot, although that judgment remains unsatisfied, bring a like action against the other for the same cause. But even by that law such a judgment against the one, without satisfaction, does not vest the property in the chattel in him, or bar a subsequent action against the other for continuing to detain the chattel. Holroyd and Littledale, JJ., in Morris v. Robinson, 5 Dowl. & R. 34, 47, 48; S. C., 3 Barn. & C. 196; Brinsmead v. Harrison, L. R., 6 C. P. 584, and L. R., 7 C. P. 547, 554; Ex parte Drake, L. R., 5 Ch. Div. 866. In Brinsmead v. Harrison Mr. Justice Willes observed that to say that the mere obtaining judgment for nominal damages vests the property in the defendant would be an absurdity. L. R., 6 C. P. 588. By our law judgment against one joint trespasser without full satisfaction is no bar to a suit against another for the same trespass. Lovejoy v. Murray, 3 Wall. 1. The reasons are therefore stronger, if possible, here than in England for holding that a judgment for nominal damages against one wrong-doer does not bar a suit against another for a continuance of the wrong. Birdsell v. Shaliol. Opinion by Gray, J. [Decided Dec. 8, 1884.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

FRAUD-MORTGAGE WITH KNOWLEDGE-MORTGAGE VOID AS TO CREDITORS.-H., being hopelessly insolvent, applied to V., one of his creditors, for a loan of $15,000, to compromise his debts by payment of twenty-five cents on the dollar. V. loaned him the money with full knowledge of the facts of the case, homestead farm (which was all of his property within and took a mortgage, executed by H. and wife, on his reach of his creditors) in Vermont, duly recorded it, and thereafter advanced the money, taking no precautions to procure its payment to the creditors. The deed of composition provided that H. might sell or dispose of his property within a certain time in furtherance of a settlement with his creditors. V. and some other creditors sigued this deed. H. failed to pay the money as agreed, and fled with it to Canada. V. subsequently filed a bill to foreclose the mortgage, making attaching creditors defendants with H. Held, that as to all the property, except the homestead interest in the land, the mortgage was void as to the creditors; that V. was entitled to foreclose as to the homestead interest only on payment to the attaching creditors who were parties to the deed of composition the twenty-five cents on the dollar, as agreed, with interest; and that as to the residue of the estate the bill should be dismissed. V. purposely aided in putting all the attachable property of the mortgagor under the cover of the mortgage beyond the reach of the creditors of the mortgagor, if the mortgage should be upheld. Such conveyances as place substantially all of the property of the debtor beyond the reach of creditors have always been held fraudulent and void in Vermont, by whose laws this case is to be governed. Edgell v. Lowell, 4 Vt. 405; Root v. Reynolds, 32 id. 139; Church v. Chapin, 35 id. 223; Prout v. Vaughn, 52 id. 451. This mortgage cannot be upheld as against the creditors who are not affected by the composition proceedings to cover property which they could reach, without going contrary to the provisions of the stat*Appearing in 21 Federal Reporter.

utes 13 & 27 Eliz., as they have been expounded from the earliest time. In the report of Twyne's case, which is one of the earliest, it is said: "And because fraud and deceit abound in these days more than in former times, it was resolved in this case by the whole court that all statutes made against fraud should be liberally and beneficially expounded to suppress the fraud." 3 Coke, 82a. The reasons for this resolution have not ceased. The effect of this mortgage, with the purpose for which the orator says it was made, was to take the property from within the reach of the creditors and put it beyond their reach, unless they would compound their debts. Circ. Ct., D. Vt., Oct. 7, 1884. Volentine v. Hurd. Opinion by Wheeler, J. TRUST BENEFICIARY ENTITLED TO ACCOUNT PLEADING IN CHARGING FRAUD SHOULD ALLEGE FACTS-MORTGAGEE CREDITED WITH IMPROVEMENTS

LIABILITY FOR RENTS.-It is quite a matter of course that a trustee shall, in a court of equity, pass his accounts whenever demanded by the beneficiary; and he cannot escape an account by showing that the judgment creditors of the beneficiary will absorb the fund, or that he is a statutory receiver, authorized to report to the governor of the State, to whom he has made a satisfactory report. An act of the Legislature conferring exclusive power over such account on the executive department would probably be unconstitutional. But where it appears that the beneficiary has not been injured by the too general statement of the account, and a failure to file vouchers in the executive department, and there is no showing of false or fraudulent conduct, a court of equity will not, for the mere satisfaction of the plaintiff, require the receiver to account more in detail, and file his vouchers, when the plaintiffs have been foreclosed of their interest in the fund by a mortgage sale. In equity pleadings, general accusations of fraud and collusion are ineffective. 1 Dan. Ch. Pr. (5th ed.) 324, and notes; Riley v. Lyons, 11 Heisk. 251; Whitthorne v. St. Louis M. I. Co., 3 Tenn. Ch. 147. The pleader should state the facts, and not formulate mere epithetic "charges." And it has been recently decided that the same rule applies at law. Hazard v. Griswold, 21 Fed. Rep. 178. If the facts are not to be ascertained by diligence, because of some ob. struction, or if the evidence of them is in possession of the other side, this should be made to appear, with technical averments showing the necessity for discovery, where that is wanted; but a court cannot sustain a bill upon mere denunciatory statements of the plaintiff's suspicions or belief. The best pleadings are those which state the inculpatory facts that carry with them their own conviction of the fraud, and by which the wrong-doing appears, without much necessity for characterizing it as such. Shepherd v. Shepherd, 12 Heisk. 276. When a junior mortgagee purchases under a foreclosure sale the mortgagor's equity of redemption, he is entitled, as against a senior mortgagee in possession, to the same account of rents and profits that the mortgagor could have had. This seems also to be well settled by authority. There is sometimes much difficulty in the application of the rule, because the peculiar facts of the case leave it uncertain where the rents and profits of mortgaged premises belong, notwithstanding the possession of the mortgagee; and sometimes, by the agreement of the parties, or other like intervening circumstances, the rule which ordinarily obtains is displaced. Indeed the local law of the State often interferes to regulate the incidents of the mortgage, and affects this as well as other rules governing the relation of mortgagor and mortgagee. Mr. Pomeroy has very ably shown how the law of mortgages has been thus changed in many of its incidents by local law. Pom. Eq., $$ 73, 74, 162, 163, 1179-1191. Making allowances however for such deviations, the rule

contended for by the defendants is well established. Harrison v. Wyse, 24 Coun. 1; Kellogg v. Rockwell, 19 id. 446; Childs v. Childs, 10 Ohio St. 339; 2 Jones Mortg. 1070-1085. I do not find any Tennessee case in which the point has been considered, but generally in this State the ordinary law governing the relation of mortgagor and mortgagee in a court of equity prevails. Henshaw v. Wells, 9 Humph. 568; Vance v. Johnson, 10 id. 214; Bidwell v. Paul,5 Baxt. 693;1 Meigs Dig. (2d ed.), § 527, subsecs. 7, 9, 10; 3 id. §§ 1984, 1987; 1 Pom. Eq., § 163; 3 id. 1187, p. 158. In an account between the mortgagor and mortgagee, the mortgagee in possession, while accounting for rents, is credited with permanent improvements, necessary expenditures, taxes, insurance, and prior incumbrances paid by him. Leiper v. Ransom, 2 Cold. 511, 514; Bradford v. Cherry, 1 id. 60; Kellogg v. Rockwell, supra. While the purchaser buys the property cum onere, unless there is something in the agreement of the parties, as in Bank of U. S. v. Peter. 13 Pet. 123, and Belcher v. Wickersham, 9 Baxt. 111, or some other attending circumstance to control it, he only agrees to pay what is due to the prior mortgagee on a proper accounting with the mortgagor at the time of his purchase. Presumably that is the sum he takes into his calculations when he makes his bid, and not a larger sum which may apparently be due; unless as before stated, the amount is fixed beforehand, in which event that is the sum he must pay at all hazards. Circ. Ct., W. D. Tenn., Oct. 6, 1884. La Fayette Co. v. Neely. Opinion by Hammond, J.

CARRIER-DELIVERY TO CONNECTING LINE-LIABILITY OF FIRST CARRIER-DAMAGES FOR DELAY.-1) When goods are to be delivered by a railroad company to a second line of conveyance for transportation further on, the common-law liability of common carriers remains on the first carrier until he has delivered the goods for transportation to the next one. Its ob ligation while the goods are in its depot does not be. come that of a warehouseman. The law on this subject was settled in Railroad Co. v. Manufacturing Co., 16 Wall. 318, where it was held that when goods are delivered to a common carrier, to be transported over his railroad to his depot, in a place named, and there to be delivered to a second line of conveyance for transportation further on, the common-law liability of common carriers remains on the first carrier until he has delivered the goods for transportation to the next one. His obligation while the goods are in his depot does not become that of a warehouseman. While therefore these cars of potatoes were in the possession of the respondent at his depot in Ft. Howard, they were, in the eye of the law, still in transit, and the liability of the respondent therefor continued unbroken, except as such liability may have been limited by the bills of lading, until they were actually delivered to the next carrier in the line. Railroad Co. v. Mitchell, 68 Ill. 471; Conkey v. Railroad Co., 31 Wis. 619. (2) Where, while goods received by the first carrier are in transit, the connecting line notifies it that it cannot receive the goods and transport them to their destina. tion because of a block in freight, this will not relieve the first carrier from liability for damages caused by the delay, where it fails to notify the shipper and give him an opportunity to dispose of the property or take measures for its preservation. (3) The measure of damages in such a case is the difference between the market value of the goods at the place of destination when they ought to have been delivered and their market value when they were delivered. Circ. Ct., E. D. Wis., Oct. 16, 1884. Peterson v. Case. Opinion by Dyer, J.

RECORDING ACTS--CONSTRUCTIVE NOTICE--POSSESSION. -When the vendee of land does such acts thereon that

possession, a notice of his

reasonable inquiry would reveal his subsequent purchaser is affected with title though his deed is not recorded. Circ. Ct., D. Minnesota, Feb. 26, 1884. Banner v. Ward. Opiuion by Nelson, J. [See 45 Am. Rep. 188.]

VENDOR AND PURCHASER--INADEQUACY OF CONSIDERATION-INSANITY-NON-PROFESSIONAL WITNESS-CON

STRUCTIVE NOTICE-MERE RUMOR NOT.-(1) Mere inadequacy of price is not sufficient to avoid the sale of real property; but when such inadequacy is gross, and the vendor was needy and of weak mind, and acted upon the impression that he was indebted to the vendee, when he was not, equity will give relief by treating the vendee as the trustee of the property for the benefit of the vendor or his representatives. Four hundred dollars held to be a grossly inadequate price for property worth not less than $1.500. It is less than one-third of the real value of the property at the time of the sale, and upon any view of the matter this must be regarded as a grossly inadequate price therefor. Seymour v. Delancey, 6 Johns. Ch. 222; 2 Pom. Eq. Jur., § 927, note 3. But as Parkhurst had a right to sell his land to Hosford for any price he chose, or even give it to him, the mere fact of gross inadequacy of price is not of itself sufficient to avoid the sale. 1 Story Eq. Jur., § 245; Seymour v. Delancey, 6 Johns. Ch. 232; 2 Pom. Eq. Jur., § 926. But the disproportion between the price and the value of the subject is 80 great in this case as to cast the burden of explanation on the vendee, and require him to show that the vendor, with a true knowledge of all the circumstances, deliberately fixed on this price. But where the transaction purports to be a sale, and there is nothing in the circumstances of the case or the relations of the parties to suggest that the vendor intended or might have made the vendee the recipient of his bounty, under the guise of a sale, for a very inadequate or merely nominal consideration, such gross inadequacy of price may furnish satisfactory evidence of some serious overreaching or advantage on the part of the vendee as would justify the interference of a court of equity. Story Eq. Jur., § 246; 2 Pom. Eq. Jur., § 928, note. (2) Upon the trial of an issue involving the sanity of a person, the opinion of a non-professional witness, based upon his own observations, is competent evidence, and is entitled to weight according to the intelligence of the witness, his means of information, and the character of the derangement. Connecticut Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612. Mr. Justice Harlan said: "Whether an individual is insane is not always best solved by abstruse metaphysical speculations, expressed in the technical language of medical science. The common sense, and we may add the natural instincts of mankind, reject the supposition that only experts can approximate certainty upon such a subject." And the "judgment" of a non-professional witness, he adds, "based upon personal knowledge of the circumstances involved in such an inquiry, certainly is of value, because the natural and ordinary operations of the human intellect, and the appearance and conduct of insane persous, as contrasted with the appearance and conduct of persons of sound mind, are more or less understood and recognized by every one of ordinary intelligence who comes in contact with his species." It is not suggested in the opinion that any particular degree of intimacy should have existed between the witness and the person whose sanity is the subject of inquiry, but that the weight to be given to the witLess' opinion must depend upon the intelligence manifested by him on his examination, "and upon his opportunities to ascertain all the circumstances that should properly affect any conclusion reached," as well as the degree and character of the insanity. A

purchaser of real property for a valuable consideration is not affected by notice of a prior adverse equity received from a stranger or person not interested in the property; nor will mere rumors or hearsay concerning such equity, and communicated by such person, be sufficient to put him on inquiry, and charge him with knowledge of the facts that he might have thereby learned. 2 Pom. Eq. Jur. 602; Hardy v. Harbin, 1 Sawy. 203; 1 Story Eq., § 400. Cir. Ct., D. Oregon, Oct. 31, 1884. Parkhurst v. Hosford. Opinion by Deady, J.

MISSOURI SUPREME COURT ABSTRACT.*

SURETY-JOINT DEBTORS—SUBROGATION.- Where one of three joint debtors gave security to another by way of indemnity against the debt, held, that the third, who stood in the relation of surety to both, had no right to insist that the security should be exhausted before the creditor proceeded against him. (1) Because his only right in respect of the security was to be subrogated to its benefits, and this would not arise until he had paid the debt. (2) Because co-promisors cannot, by arrangements between themselves, hinder and delay their creditor in the collection of his demand. Sheldon on Subrog., §§ 87, 127. Roberts v. Jeffries. Opinion by Henry, J.

CONTRACT-PERSONAL LIABILITY OF AGENT--SEALED INSTRUMENT.-Plaintiff sold one Y. a tract of land, the title to which was in doubt. By an instrument under seal, to which defendant was no party and in which he was not named, plaintiff agreed to use diligence in perfecting the title and to have it vested in Y., and thereupon Y. was to pay one-half of the purchase-money, the other half being paid in cash. In making the purchase Y. was acting as agent of defendant, and he immediately assigned the contract to defeudant who took possession. Defendant had furnished the money for the cash payment. Plaintiff subsequently aided in perfecting the title, and the same was finally vested in defendant. Held, that though plaintiff could not maintain an action against defendant on the contract, because it was under seal, and defendant was no party to it and was not named in if, yet he could sue on the implied obligation growing out of all the facts stated. Huntington v. Knox, 7 Cush. 374; Story on Agency, §§ 160, 422; Briggs v. Partridge, 64 N. Y. 357; Morse v. Hitchcock, 4 Wend. 292. Moore v. The Granby Mining and Smelting Co. Opinion by Ewing, Comr. [See 47 Am. Rep. 816.]

TRUST-DEED OF--SATISFACTION BY STRANGER-SUBROGATION.-Where a land owner, to save his land, pays a note secured by a deed of trust executed by a former owner, and upon which he is not legally liable, the debt is not thereby extinguished; he is subrogated to the rights of the holder as against the maker. Kellogg v. Schmaake, 56 Mo. 136; Wolff v. Walter, id. 292; Swope v. Leffingwell, 72 id. 348; Orrick v. Durham, 79 id. 174. It is only when a person is primarily bound by contract to pay a note that his payment of it works an extinguishment and satisfaction of the obligation, and then only as to those to whom he is bound. Allan v. Dermott. Opinion by Martin, Comr.

EXECUTION-REPLEVY OF PROPERTY LEVIED ONSECOND EXECUTION.-An execution was levied on personal property of the defendant sufficient to satisfy it. Before sale the property was taken out of the hands of the officer by replevin at the suit of a person who claimed it by purchase from the defendant after the levy. Thereupon a second execution was issued and a levy and sale were made thereunder. In an action

* To appear in 80 Missouri Reports.

against the officer making them, held, that such a purchaser could not maintain replevin, that the property therefore remained in custodia legis and operated sub modo as a satisfaction of the first execution, and that the issuing of the second and the levy and sale under it were therefore unlawful, and the officer was liable accordingly. Blair v. Caldwell, 3 Mo. 354; Moss v. Craft, 10 id. 720; Williams v. Boyce, 11 id. 537; Blackburn v. Jackson, 26 id. 308; Thomas v. Cleveland, 33 id. 126. Freeman on Judg., § 475; Herman on Exec., § 176; Wells on Repl., §§ 243, 244. State Colvin v. Six. Opinion by Norton, J. [See ante, 130.-ED.]

OHIO SUPREME COURT COMMISSION ABSTRACT.*

ASSIGNMENT FOR CREDITORS-NEGLECT TO PRESENT CLAIM WITHIN TIME-RIGHT TO SHARE.-Under the statute relating to insolvent debtors the creditor of an assignor, who does not present his claim prior to the payment of a dividend and within six months after publication of the notice of assignment, may afterward present his claim and receive a dividend thereon, equal to that paid to other creditors, in case there is money or assets remaining in the hands of the assignee sufficient to make such payment. Owens v. Ramsdell. 33 Ohio St. 442. Carpenter v. Dick. Opinion by Nash, J.

WILL PROVISION REQUESTING SERVICES-LIABILITY OF ESTATE FOR DISCHARGE.-A testator provided in his will as follows: "I hereby request and desire William J. Harker, who has attended to my business, keeping my books and accounts, to continue to take charge of and keep the accounts of my estate for my executor and trustee, and in any way he can to assist in the settlement of my estate, so long as his services may be necessary, and for such services I allow him a salary of $1,500 per year, to be paid to him by my executor in monthly installments." Held, that this provision of the will in favor of Harker was not a legacy, but a testamentary provision requesting his services in the settlement of the estate and fixing the relation between him and the executors, in case he entered upon the performance of the services and the same were accepted by them; that the liability of the estate for the discharge of Harker was the same as if he had been wrongfully discharged from such service when in the performance of a contract with the executors, to serve upon the same terms and conditions. Harker v. Smith. Opinion by McCauley, J.

PARTNERSHIP-LEASE TO-LIABILITY AFTER DISSOLUTION-PARTNER RELEASED MAY RECOVER FROM CO

PARTNER.-(1) C. and M., partners, held as joint les. sees a lease of certain premises for ninety-nine years, renewable forever, with covenants for payment of rent, taxes, and assessments. The partnership was dissolved, and C. conveyed to M. all his undivided interest in the leasehold. The assignee of the reversion brought suit on the covenants for rent, against C. and M. jointly, for arrears of rent accrued after the dissolution of the partnership. Pending the suit, M. being in default of answer, C. filed an answer denying all liability for reut, but afterward paid to the assignee of the reversion the sum of $500, who in consideration thereof negotiated and executed to him a release from all and any liability arising on or growing out of the lease, and forever discharged him from all and any covenants therein, and from all the obligations thereof. Held, there is not such a presumption that the above named sum was paid on accrued rent, and not in discharge of future contingent liability on the lease, as *To appear in 41 Ohio State Reports.

would entitle C. to recover such sum of M., as money paid for and on his account, upon an implied promise to reimburse C. therefor. The burden is not on M. to prove that such sum was not applied on the rent. The assignment by a lessee of all his rights and interests in the premises, without his lessor's consent, will not thereby discharge him from his express obligations, and he will therefore remain liable upon his original contract after his assignment. But as his liability thus remains, he is entitled to be indemnified by his assignee, against the payment of rent during the continuance of such assignee's term. While in the possession of the estate, and enjoying the benefit of the lease, there is an implied promise on the part of the assignee, that he will also take the burden from his assignor, and indemnify him against the claims of the lessor, while he holds under the assignment. Patten v. Deshon, 1 Gray, 330; Farrington v. Kimball, 136 Mass. 313; Moule v. Garrett. L. R., 5 Exch. 132; S. C., L. R., 7 Exch. 101; Burnett v. Lynch, 5 Barn. & Cres. 589. Nor is this principle inapplicable where one of two joint lessees assigns to the other all his interest in the lease. It is stated by Mr. Justice Willes, in Moule v. Garrett, supra, 7 Exch. 104, in expressing his concurrence in the decision on an appeal in that case, that where a party is liable at law by immediate privity of contract, which contract also confers a benefit, and the obligation of the contract is common to him and to the defendant, but the whole benefit of the contract is taken by the defendant, the former is entitled to be indemnified by the latter in respect of the performance of the obligation. C. did not cease to be an original debtor to the lessors for rent that had accrued after his making the conveyance to his joint lessee. But as between himself and McH., he was a surety, and upon payment to the lessors of any portion of such rent, he had his remedy over against McH. as principal, to be reimbursed. Wolveridge v. Steward, 1 Cr. & M. 644, 660. See also the opinion of Baron Parke in Humble v. Langston, 7 M. & W. 517, 530. (2) When a surety pays the creditor's claim, he must be legally bound for it, to enable him to recover the amount paid of the principal. And it must also appear, that at the time of the payment, the principal himself was under a legal obligation to pay. The surety cannot, by a voluntary payment, when not legally bound, place himself in a better position toward the principal, than that of one not a surety, who vol untarily pays money in the discharge of the debt of another person; and cannot by such voluntary payment impose upon the principal an obligation which he was not under at the time of the payment. Hollinsbee v. Ritchey, 49 Ind. 261. McHenry v. Carson. Opinion by Dickman, J.

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-NOTICE OF DISHONORASSIGNMENT FOR CREDITORS-NON-RESIDENT CREDI

TOR.-(1) A bank of this State bound as indorser of a note payable in New York and held there, failed and made an assignment for the benefit of creditors. The note not being paid at maturity, the holder caused it to be protested and notice to be given to the bank, but not having heard of the failure and assignment, gave no notice to the assignee. Held, that the notice given was sufficient to bind the bank. Bank v. Reynolds, 2 Cranch, C. C. 289; Baldwin v. Hale, 1 Wall. 223; Ogden v. Saunders, 12 Wheat. 279. (2) If one, whose name appears on a note as indorser, is really the maker, it is his duty to provide for its payment, and if he fails to do so, and the note goes to protest, he is not entitled to notice. Merchants' Bank v. Easley, 44 Mo. 286; Harness v. Davies County Savings Bank, 46 id. 357;

NOTICE OF PENDENCY.

Editor of the Albany Law Journal:

Your correspondent, "Arm," in his communication, vol. 31, p. 198, urging an amendment of Code Civ. Pro., § 1674, seems to have overlooked the very purpose of recording a notice of the pendency of an action. By an old rule or principle still in force, the purchaser of a thing in action, with knowledge of the litigation, is bound by the judgment as though he were a party to the suit. A lis pendens is but notice of the litigation, furnishing conclusive judicial presumption of knowledge of the suit in all persons dealing with the subject of the controversy, subsequently to its being recorded. After judgment, if an appeal be taken, the same suit continues, the matter is still the subject of the same litigation, knowledge of which would bind a purchaser, though the record notice of its pendency have been cancelled. Why not then continue such record notice until the right of appeal has expired? Not until then can it be said that that itigation has really been ended. The cancellation would not relieve a purchaser from the obligation of the final judgment rendered after the appeal if he had knowledge of the suit. The cancellation itself might furnish that knowledge if the purchaser examined the record. As the recording of a lis pendens is a substitute for giving personal notice of a suit pending and of its subject-matter, the final determination of which can be found in the same records by a person contemplating purchase, and so interested in knowing the result of the litigation, it would seem that there is no need of any provision for the formal cancellation of the record notice; and that section 1674 might better be repealed than amended in the particular suggested by your correspondent. If it were so amended there would be need of further provisions allowing a new record notice, upon perfecting appeal, that by the appeal the matter was still in controversy.

Yours truly,

ELMIRA, N. Y., March 7, 1885.

LIS PENDENS.

RELIEF OF THE COURT OF APPEALS.

Editor of the Albany Law Journal:

One of your correspondents is almost ready to despair of the republic, because the Court of Appeals is two years behind in its work. The facts and statistics which be presents are sufficiently startling,and would provoke immediate action if we had not become familiar with them from long experience. We have grown accustomed to the law's delay. The conservatism of the bar has restrained agitation, and obvious considerations influence the judges against initiating discussion. But the time has now come when suitors, who are more interested in the matter than are lawyers or courts, ought no longer to submit to such postponement of judicial action as amounts substantially in many cases to denial of justice.

Your correspondent's statement of the present condition of the court may be accepted as the basis of a plan for its relief, and what is of higher moment, the relief of people whose rights of person and property are in abeyance. He might have gone much further however without enumerating all the reasons which suggest the necessity for prompt and radical change in the Constitution of the court. The State of New York is not Rhode Island. We must provide judicial force adequate to the transaction of our judicial business.

crease, not only in the near future but for an indefinite period. No temporary expedient will satisfy the demands of the people, nor the exigencies of the case. No scheme is worthy of discussion which fails to organize a court that will endure without reconstruction for at least a century.

The proposition to curtail present liberty of appeal is an obnoxious one. The people will not resign any

of the powers they now possess, nor ought they. The tendency of modern thought is the other way. The right of appeal is as sacred as the right to prosecute or defend, and every law which restricts that right is an interference with freedom of personal conduct. The restrictions at present existing are, to the extent that they restrict, usurpations. It would be useless to quarrel with them now, for they have been so long a part of our jurisprudence that most of us have forgotten to murmur against their injustice; but any further limitation of the right to appeal from an unjust or unlawful decision of a court will never be consented to, and never should be.

The obvious remedy for the evil lacks one essential element of popularity. It is not complex, has no intricate and occult machinery. Its simplicity does not commend it to Solon, nor extort the admiration of Lycurgus. Any plain man can see that seven more judges and two divisions of the court must at once clear the calendar, but the scheme is not adopted because the wayfaring man might invent it. Besides it would require a constitutional amendment. What of that? A great many of our most precious institutions could never have existed without change in the fundamental law. The objection is fatuous. It has been made a great many times. John made it when the barons demanded Magna Charta. Constitutions must change whenever the necessity for change arises. Constitutions do not make the greatness of a people, people make Constitutions great.

Would fourteen judges and two divisions of the court relieve suitors and the court itself? If so, the question should be considered res adjudicata. It will be easy to establish such a court, and easy for the court to transact our business for us. The two divisions appear to be the bête noir of those who believe the country must go to the devil, if time honored customs are abolished. Men say they do not like a two-headed court. Why not? We have one already which has existed nearly forty years. Our General Term is a hydra, but no great harm has resulted. Conflicting rules of law and practice have prevailed for a time, but uniformity has finally been secured by decisions of the court of last resort; and even this fault would not inhere in a proper organization of that court with fourteen judges and two branches. A principle once established by either bench necessarily becomes law unto the other, as well as itself, "and the rest of mankind," and either division must be supernaturally ingenious to distinguish more shrewdly than does the present court between a former decision and the case at bar. Only one possibility of conflict could exist, and that could easily be avoided. If the improbable case should arise of the identical question coming before both branches simultaneously, both would unite in hearing argument and deciding.

Such a court would be elastic enough for all times. When the business shall have become so great that two divisions are unequal to its performance a third division may be created and so on indefinitely. The system would endure beyond the period when Macaulay's New Zealander shall appear on London Bridge, and would not encroach on the natural rights of the people, who make Constitutions and laws, and for whose benefit Constitutions and laws exist. Something akin to this plan must be adopted, or the right of appeal