In

say very clear-opinion which I have, in this case. This action is brought by the plaintiffs against the defendants to recover money which is in the hands of the defendants, and therefore, if the action had been brought at common law, it would have been an action for money had and received. That action was always treated at common law as founded upon equity, and therefore it seems to me that the decision in this case, whatever it ought to be, would be the same whether it should be considered to be a decision at common law or in equity. It seems to me that the question raised between the plaintiffs and the defendants calls upon us to consider, first, the nature of a policy of fire insurance, and secondly, what was the relation with regard to the policy and to the property between the plaintiffs and the defendants. In my judgment the subject-matter of the contract of insurance is money and money only. The subject-matter of insurance is a different thing from the subject-matter of the contract. The subject-matter of insurance may be a house in a fire policy, or premises in a fire policy; or may be a ship, or goods, or several other things in a marine policy. These are the subject-matter of insurance, but the subject-matter of the contract is money and money only. The only result of the policy, if an accident happens which is within the insurance, is a payment of money. It is true that under certain circumstances, in the case of a fire policy, there may be an option to spend the money in rebuilding the premises, but that does not alter the fact that the only liability of the insurance company is to pay money. The contract therefore is a contract with regard to the payment of money, and it is a contract made between two persons and two person only, as a contract. this case there was a contract of insurance made between the defendants and the insurance company. That contract was made by the defendants not on behalf of any undisclosed principal; not on behalf of any one interested other than themselves, but solely and entirely on their own behalf, and at a time when they had no relation of any kind or sort with the plaintiffs. It was a personal contract between the defendants and the insurance office to which they were the only parties. It is true that under certain circumstances a policy of insurance in equity may be assigned so as to give another person a right to sue upon it, but in this case the policy of insurance, as a contract, never was assigned by the defendants to the plaintiffs. It would have been assigned by the defendants to the plaintiffs if it had been made part of the contract of purchase and sale of land, but it was not. Any valuation of the policy, any consideration of the price of the premises in consequence of there being a policy, was wholly omitted. There was nothing given by the plaintiffs to the defendants for the contract. The contract therefore never expressly, nor in my opinion impliedly, was assigned to the plaintiffs at all. So far as regards the contract of insurance, there never was any relation of any kind between the plaintiffs and the defendants, any more than between the plaintiffs and any other stranger. But there did exist a relation between the plaintiffs and the defendants, not with regard to the subject-matter of the contract, which is money and money only, but with regard to the subjectmatter of the insurance, that is the premises; there was a contract of purchase and sale between the plaintiffs and the defendants in respect of the premises insured. It becomes necessary to consider accurately, and to state in accurate terms, what is the relation between the two people who have contracted together with regard to premises in a contract of sale and purchase. With the greatest deference, it seems wrong to say that the one is a trustee for the other. It is a contract which a court of equity will enforce by means of a decree for specific performance. But if the vendor were a trustee of the property for the vendee, it would

seem to me to follow that all the product, all the value of the property received by the vendor, from the time of the making of the contract, ought to belong to the vendee. What is the relation between them, and what is the result of the contract? Whether there shall ever be a conveyance depends on two conditions; first, whether the title is made out; and secondly, whether the money is ready; and unless those two things coincide at the time when the contract ought to be completed, the contract never will be completed, and the property never will be conveyed. But suppose that at the time when the contract should be completed the title should be made out, and the money be ready, then the conveyance takes place. It has been suggested that when that takes place or when a court of equity decrees specific performance of a contract, and the conveyance is made in respect of that decree, by relation back the vendor has been trustee for the vendee from the time of the making of the contract. But again, with deference, it appears to me that if that were so, of all the rents which have accrued due, and which have been received by the vendor, between the time of the making of the contract and the time of the completion of the contract, the one was trustee for the other, and those rents ought to belong to the vendee from the time of the contract, whereas it seems to me that that is not the law. Therefore, I venture to say that I doubt whether it is a true description of the relation between the parties to say that from the time of the making of the contract and the time when the completion ought to take place, the one, either by relation back, or at the time, or during the time, is ever trustee for the other. They are only parties to a contract of vendor and purchaser, of which the court of equity will, under certain circumstances, decree a specific performance. But if the vendor was a trustee for the vendee, it does not seem to me at all to follow that any thing under the contract of insurance would pass any thing in respect of the moneys. The contract of insurance is a mere personal contract for the payment of money on the happening of certain conditious. It is not a contract which runs with the land. If so, upon the completion of the purchase, there ought to be a decree that the policy be handed over. But that is not the law. It is a mere personal contract, and unless the personal contract is assigned, there can be no suit or action maintained upon it, except between the original parties to it. My brother Cotton has mentioned the cases in equity. It seems to me that the cases at common law must follow the same view. At common law, with regard to marine policies, it has been always held that where there is a policy, and where the subject-matter of the insurance is sold by contract during the running of the policy, no interest under the policy passes unless it is made part of the contract of purchase and sale, so that it would be considered in a court of equity as assigned. The leading case on the subject is the case of Powles v. Innes, 11 M. & W. 10, in which it was decided that "a person who assigns away his interest in a ship or goods, after effecting a policy of insurance upon them, and before the loss, cannot sue upon the policy, except as a trustee for the assignee, in a case where the policy is handed over to him upon the assignment, or there is an agreement that it shall be kept alive for his benefit." Lord Abinger and Lord Wensleydale both said that the mere fact of making the contract of purchase and sale did not pass any interest in the policy, but that there must be a bargain with regard to the policy in order to pass the interest. That is more clearly expressed by Quain, J., in the case of The North of England Pure Oil Cake Co. v. The Archangel Maritime Insurance Co., supra, where he lays down that which is, in the treatises of Arnold, ånd I think in that of Phillips, adopted and recognized as law, viz., "On the sale of a thing insured no interest in the policy passes to

the vendee unless at the time of the sale the policy be assigned either expressly or impliedly." That seems to me to have been always the rule in courts of law, and it seems to me that Kindersley, V. C., in Lees v. Whiteley, lays it down that that was the well-settled and recognized rule in courts of equity just as much as in courts of common law. I think therefore that the plaintiffs cannot recover from the defendants, on the ground that there was no relation of any kind or sort between the plaintiffs and the defendants with regard to the policy, and therefore none with regard to any money received under the policy.

JAMES, L. J., dissented.

WHEN CHECK ON BANK OPERATES AS ASSIGNMENT OF DEPOSIT.

UNITED STATES CIRCUIT COURT, E. D. MISSOURI, MARCH, 1880.

GERMAN SAVINGS INSTITUTION V. ADAE.

B., a banker, in payment of moneys collected by him for C., gave his check on the D. bank for a sum less than the amount to his credit in that bank. Before the check was presented for payment B. made an assignment for creditors, of which the bank had notice. Held, that the check operated as an equitable assignment to C. of the deposit to the amount named in the check, and that C. was entitled to such amount in preference to the assignee for creditors.

ACTION of interpleader. The facts appear in the

opinion.

Finkelnburg & Rassieur, for complainant.

Noble & Orrick, for defendants.

MCCRARY, C. J. This case is submitted upon an agreed statement of facts, from which it appears:

(1) That on the 16th day of December, 1878, the firm of C. F. Adae & Co., bankers, at Cincinnati, Ohio, being intebted to their correspondents, H. L. Newman & Co., at East St. Louis, Illinois, made and forwarded their certain bill of exchange (or check) of that date, on the German Savings Institution, a bank in St. Louis, for $1,072, to the order of said H. L. Newman & Co., the same being proceeds of a collection theretofore made by said Adae & Co. in the ordinary course of business between them and the said H. L. Newman & Co.

(2) The said bill of exchange received by said Newman & Co..on the 19th day of December, 1878, and about noon of that day, was presented at the banking house of said German Savings Institution for payment, which was refused.

(3) On the 18th day of December, 1878, the said C. F. Adae & Co. became insolvent, and on that day, at Cincinnati, Ohio, made an assignment in writing of all their property to Augustus Bennett and Philip Henry Hartman, in trust for the benefit of their creditors, which assignment and trust was on the same day accepted by said assignees.

(4) Upon making said bill of exchange, December 16th aforesaid, said Adae & Co. charged themselves with the amount thereof in their general account with the German Savings Institution.

(5) On December 16th the amount on deposit with said German Savings Institution to the credit of Adae & Co. was more than the sum of said bill of exchange; and on December 18th, at the time of said assignment to Bennett and Hartman, the balance on deposit, as owing from it to and the property of said Adae & Co. on said general account, was $4,037.25.

(6) Notice of the assignment to Bennett and Hartman was received by the German Savings Institution on the 19th day of December, before the presentation for payment of said bill, and by reason thereof pay

ment was refused. The German Savings Institution, by bill of interpleader, asks the direction of this court as to the proper disposition of said fund. Bennett and Hartman, as assignees, claim the entire fund under the assigument from Adae & Co. to them. Newman & Co. claim a portion thereof under the bill of exchange executed to them by said Adae & Co. on the 16th of December for $1,072.

The controversy is thus seen to involve the question whether the execution and delivery of the bill of exchange for $1,072 was in equity, in view of the facts above recited, an assignment pro tanto of the fund in question. It has been frequently decided that the holder of a check drawn on a bank cannot sue the bank for refusing payment of it, in the absence of proof that it was accepted by the bank or charged against the drawer. Bank of Republic v. Millard, 10 Wall. 152; Marine Bank v. Fulton Bank, 2 id. 252; Thompson v. Riggs, 5 id. 663; Rosenthall v. Mastin Bank, 21 Alb. Law Jour. 28, and cases cited.

If, therefore, this were an action by a check-holder against the bank upon the check, there could be no recovery. But such is not the case. This is a bill of interpleader in equity, by which the plaintiff, a bank holding the fund in question, declares its readiness and willingness to pay as the court may order, and the controversy is as to the equities of the other parties who are adversary claimants of the fund. The rule which protects a bank from being harassed by suits brought by check-holders has no application to a case of this character. We are at liberty therefore to inquire which of the claimants here has the better right in equity to the fund in question? There are undoubtedly numerous respectable authorities which sustain the doctrine that the execution of a check in the ordinary form, not describing any particular fund, does not operate as an assignment, equitable or otherwise, of funds of the drawer in the hands of the drawee. Attorney-General v. Insurance Co., 71 N. Y. 3:25, and cases there cited; Randolph v. Canby, 2 N. B. R. 296.

But on the contr ry it was held by this court in Walker v. Siegel, 2 Cent. L. J. 508, that the rule thus broadly stated seems to apply only to cases at law, and that "such an order, as soon as notico is given to the drawee, works an assignment in equity;" and this view is well sustained by authority. Roberts v. Austin, 26 Iowa, 315; Forgarties v. State Bank, 12 Rich. L. Rep. (S. C.)518; Munn v. Burch, 25 Ill. 35; 1 Daniell, Neg. Inst., § 23; Willard's Eq. Jur. (Potter's ed.) 464.

There is certainly no good ground for holding that a check or a draft drawn upon a fund in bank is not an equitable assignment as between the drawer and payee; and in a case where there is no controversy as to the rights of the bank or drawee it does not lie in the mouth of the drawer or his assignee to say that such an instrument is not an equitable assignment. If it were conceded that as a general rule a check drawn upon a part of a fund in bank will not of itself operate as an assignment pro tanto, it is very clear to my mind that this is a case which a court of equity might well regard as an exception to any such general rule. As already suggested, the holder of the fund has come voluntarily into a court of equity, bringing the fund with him, and disclaiming all interest in it, asks the court to dispose of it as between the check-holder and the assignee, according to equity. It is a case, too, in which it appears that in equity the fund was the property of Newman & Co. before the check was executed, being the proceeds of a collection made for them by Adae & Co. As between the parties who are now claiming this fund a court of equity would have decreed the payment of it to Newman & Co. on the ground that Adae & Co. held it for them as the proceeds of a collection made as their agents, and therefore proceeds of their property. Superintendent, etc.,

v. Heath, 2 McCarter (N. J.) 22; Overseers of Poor v. Bank of Va., 2 Gratt. 544. It is well settled that the principal may follow his property into the hands of his agent or factor and recover it or its proceeds from him. Veil v. Admr. of Mitchell, 4 Wash. 105; Bank v. King, 57 Penn. St. 202; Buch v. Forsyth, 14 Bush, 499; Cook v. Tallis, 18 Wall. 332.

An assignee for general creditors can assert no claim that was not good in the hands of his assignor. Roberts v. Austin, 26 Iowa, 315; Hagerty v. Pulmer, 6 Johns. 437; Walker v. Miller, 11 Ala. 1067; Clark v. Flint, 22 Pick. 231; Burrill on Assignments, 483, 484, and authorities cited.

If there had been no assignment, and this were a controversy between Adae & Co. and Newman & Co., it would, I apprehend, hardly be contended that the right of the latter to a decree for the money could be questioned. Such a decree would only give them their own the proceeds of their property, to wit, certain choses in action left with their agent, Adae & Co., for collection, and by them collected. As the assignees can assert no claim as purchasers, and have no equities which did not belong to the assignors, I am clearly of the opinion that the defendants Newman & Co. are entitled to a decree for the amount of the face of their bill of exchange, to wit, $1,072. The balance of the fund, after payment of costs, should go to the assignees.

Decree accordingly.

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

CONSTITUTIONAL LAW IN TRANSIT.

-

- STATE TAX ON PROPERTY - One State cannot levy a tax upon property in commercial transit to another State or country. A cargo of corn purchased in Iowa for the purpose of shipment to Canada was removed to the railway and temporarily stored in cribs to await transportation. Held, while so stored for a reasonable time, to be in transit and exempt from taxation, provided the purchaser intended to ship immediately, or as soon as transportation could be conveniently obtained. Carrier v. Gordon, 21 Ohio St. 605, distinguished. U. S. Circ. Ct. Iowa, May 11, 1881. Ogilvie v. Crawford County. Opinion by McCrary, C. J.

FRAUDULENT CONVEYANCE WHEN FRAUD PRESUMED — SUBSEQUENT CREDITOR. - Fraud will be presumed where a voluntary conveyance to a wife is followed within a short time by the fraudulent disposition of the remaining estate of the grantor. Such conveyance will be void as to all subsequent as well as all prior creditors of the grantor. It does not seem to be necessary to show injury to the creditors, in addition to a fraudulent intent in order to avoid a conveyance upon the ground of fraud. If however a person, when about to contract debts makes a voluntary conveyance, with the actual intent to deprive his future creditors of the means of enforcing collections of their debts, and this purpose is accomplished, such subsequent creditors are unquestionably thereby injured. Bump Fr. Conv., 311; Story's Eq. Jur., § 362; Sexton v. Wheaton, 8 Wheat. 229; Kerr., Fr. & Mist., 206. U. S. Circ. Ct., Iowa, April 29, 1881. Burdick v. Gill. Opinion by McCrary, C. J.

v. Beebe, 25 N. Y. 244; Bayard v. Malcolm, 2 Johns. 550; Norris v. Milwaukee Dock Co., 21 Wis. 131; Watson v. Cheshire, 18 Iowa, 202. It need not appear that the fraudulent representations were made directly and individually to the plaintiff, but it is sufficient if it be shown that he was authorized to act, and did act, upon such representations. In such action, if the party suing is not the party to whom the false representations were made, it must appear that they were made with the intent that they should be acted upon by the parties, and that they were so acted upon by the plaintiff. In this case the receiver of a railroad executed and placed upon the market certain certificates payable to A. or bearer, which contained upon their face certain false representations, intended to deceive whoever might purchase the same. Held, that a bona fide purchaser, before maturity and without notice, relying upon such fraudulent representations, might recover in an action for damages, although such receiver had no purpose to defraud and deceive such specific purchaser when he executed the said certificates. Held, further, that the fact that the payee A. participated in the fraud would not relieve the maker from liability, nor render it necessary that such payee should be joined in the action as a party defendant. Held, further, that the representations contained in such certificates were not warranties upon which an action could be maintained by the purchaser. Bruff v. Mali, 36 N. Y. 200; Bigelow on Fraud, 89; Cazeau v. Mali, 25 Barb. 578; Bartholomew v. Bentley, 15 Ohio, 660; Railroad Co. v. Schuyler, 34 N. Y. 30; Barry v. Croskey, 2 J. & H. 136; Peck v. Gurney, L. R., 6 H. of L. 377. U. S. Circ. Ct., Iowa, May 11, 1881. Bank of Montreal v. Thayer. Opinion by McCrary, C. J. NEGLIGENCE

IN SHIP FURNISHING UNSAFE MACHINERY ΤΟ UNLOAD MASTER AND SERVANT. Where a stevedore, having contracted with the steamship R. to discharge her cargo of Spiegel iron with the use of her derrick and chain, employed the libellant to assist in unloading, and the latter, while so engaged in the lower hold, was severely injured by the falling of a loaded tub, with part of the chain which had parted, the break being due to a defective link, held, that the allegation in the answer that the libellant and stevedore were co-servants of the respondent, being obviously a mistake, and there being no privity between the libellant and the respondeut, the plaintiff cannot recover for a breach of contract; that in such a case it would seem the employer can only be held liable if the defect in the article that caused the injury was of an imminently dangerous nature; that even if the degree of negligence sufficient to make the respondent liable as employer were enough, still the plaintiff cannot recover, the evidence showing that the defective chain was examined with ordinary care before being used, was apparently strong enough for the purpose intended, and that the defect was neither known to nor discoverable by the respondent by the exercise of such care. Loop v. Litchfield, 42 N. Y. 351; Burke v. De Castro Co., 11 Hun, 354; The Germania, 9 Ben. 358; The Aalsemond, id. 208; De Graff v. Railroad Co., 76 N. Y. 125. U. S. Dist. Ct., January 26, 1881. The Rheola. Opinion by Choate, D. J.

brought an action on March 24, 1877, to enforce his lien for the unpaid purchase-money. H. was then in possession of the land under the contract of purchase. On September 18, 1877, plaintiff obtained a judgment in the action against H. for $490, and an order decreeing the judgment a lien upon the land, and also an order to sell the land to satisfy the same. After the rendition of the judgment, and during the months of September and October, 1877, H. sowed wheat on the land which afterward matured. On November 5, 1877, an order of sale was issued upon the judgment of September 18, 1877. On December 22, 1877, the sheriff sold the land to S. at public sale, and at the December term of court for 1877 the sale was confirmed and the sheriff directed to execute a deed to the purchaser. On March 1, 1878, the sheriff executed to S. a conveyance of the land, and S. took possession. The wheat crop became fit for harvesting in June, 1878, and on or about June 15, 1878, S. cut down the wheat and placed it in shock on the land, without consent of H. On or about June 20, 1878, H. and one R., without the knowledge or consent of S., took possession of the wheat, threshed it out, and placed it in a bin on the premises of R. Held, in an action by S. against H. and R. to recover immediate possession of the wheat, that upon the foregoing facts S. ought to recover the wheat, as he was entitled to the crops on the land at the time of the delivery of the deed to him, in preference to H. or R. Joues v. Thomas, 8 Blackf. 428; 2 Jones on Mortg.. § 1658; Stevens v. Chadwick, 10 Kans. 406; Scriven v. Moote, 36 Mich. 64. Smith v. Hague. Opinion by Horton, C. J. PARTNERSHIP -LEVY UPON FIRM PROPERTY FOR PARTNER'S INDIVIDUAL DEBT. An officer holding an order of attachment against the property of an individual partner may levy such attachment on the interest of such partner, and take the partnership property, or a portion thereof, into his possession, and sell the interest of the partner in such property. Moore v. Pennell, 52 Me. 162; Russ v. Fay, 29 Vt. 381, 386; Branch v. Wiseman, 51 Ind. 3; White v. Jones, 38 III. 160; Andrews v. Keith, 31 Ala. 727; Wiles v. Maddox, 26 Mo. 77. Hershfield v. Claflin. Opinion by Valentine, J.

OF

SHERIFF -WAIVER OF AMERCEMENT-ORDER AMERCEMENT NOT CONCLUSIVE ON SURETIES. — (1) If a sheriff, after return day of an execution, transmits to the clerk of the court issuing the execution all the moneys collected on the writ, less legal fees thereon, with a written statement that the writ has been lost or mislaid, and such statement is filed with the clerk, and thereafter the plaintiff in the execution accepts the proceeds of the writ, he thereby waives the neglect and absolves the sheriff from amercement for omitting to return the execution. In Trigg v. McDonald, 2 Humph. 386, it was held that where a plaintiff in the execution received money collected on the writ, he thereby waived his right of action against the sheriff for a false return on the writ for the balance. So the acceptance by the plaintiff of the money collected on the execution ratified the action of the sheriff-so far, at least, as to absolve him from amercement for the neglect in the non-return of the execution. Watson on Sheriffs, 204. This doctrine is not in conflict with Bond v. Weber, 17 Kans. 410. (2) Although the sureties of a sheriff may be made parties to a judgment of amercement under the code, by action to be commenced and prosecuted as in other cases, the order or judgment of amercement is not conclusive as to the sureties, who may, in such a proceeding, prove everything which would have protected the officer from liability. In Crawford v. Word, 7 Ga. 445, it was held that a rule absolute against the sheriff, ordering him to pay over money, is neither an extinguishment of his official security, nor a bar to a suit against his sureties; and that in a suit on the bond the order is

conclusive against the officer, but presumptive evidence only against the sureties; and they were allowed to prove everything ab origine which would have protected the officer from liability. In Shelby v. Governor, 2 Blackf. 289, an action of debt was brought on a sheriff's bond by the governor, for the use of an execution creditor against the administrator of the sheriff's surety. The gravamen was, the sheriff's failure to return the execution. The declaration averred, inter alia, that the execution creditor had previously obtained a judgment against the sheriff for the same neglect of duty then complained of. At the trial the plaintiff offered in evidence the previous judgment against the sheriff. The Circuit Court refused to admit the evidence, and the decision was on a writ of error approved of. In Lucas v. Governor, 6 Ala. 826, it was declared that a recovery in an action against a sheriff for a false return was no evidence to fix the liability of his sureties when they were sued upon his official bond. In Whitehead v. Woolfolk, 3 La. Ann. 43, which was a bond for the faithful discharge of duty as receiver, it was held that a judgment ascertaining a balance against him as receiver was not conclusive against the sureties. In Atkins v. Baily, 9 Yerg. 111, a judgmeut by confession of a constable or upon testimony of witnesses was deemed evidence against the sureties of such officer, but not conclusive; and the sureties were adjudged the right to prove or establish such facts as showed that the principal was not liable. See, also, Taylor v. Johnson, 17 Ga. 521; State v. Martin, 20 Ark. 629; Giltinan v. Strong, 64 Penn. St. 242; De Greiff v. Wilson, 30 N. J. Eq. 435; Pico v. Webster, 14 Cal. 202; Brandt on Suretyship, §§ 1, 524, 525, 530. Graves v. Bulkley. Opinion by Horton, C. J.

MISSOURI SUPREME COURT ABSTRACT.* - The pur

LANDLORD AND TENANT — PARTITION. chaser of leased land sold under a decree in partition is entitled to the unpaid rents accruing from the day of sale. Citing Taylor on Landlord and Tenant, § 383. Stevenson v. Hancock. Opinion by Norton, J.

REPLEVIN - CROPS

EVIDENCE - JUDICIAL NO

TICE. (1) Corn in the stalk is the subject of replevin; and this without regard to whether it is growing, or having matured, has ceased to derive any nourishment from the soil. Citing 2 Schouler on Pers. Prop. 468; 2 Bingham on Real Prop. 584; Benjamin on Sales, §§ 120, 121, 126. (2) The court will take judicial notice that corn is mature in the month of December. Citing Floyd v. Ricks, 14 Ark. 286; Bliss Code Pleading, § 188; 1 Greenl. on Ev,, § 5. Garth v. Caldwell. Opinion by Sherwood, C. J.

STATUTE OF LIMITATION OBLIGATION PAYABLE ON DEMAND DELAY IN DEMAND. - Where delay in making demand is contemplated by the express terms of an obligation payable on demand, there is no rule of law which requires that the demand be made within the statutory period for bringing an action. Thus, where an obligation for the payment of money one day after date contained a condition that if the payee should demand payment during her natural life it should be due and payable; but in case of her death before any or all of the debt should be paid, it should not be paid at all. Held, that a demand made by the payee more than ten years after the date of the paper was in time, and that an action brought immediately thereafter was not barred by limitation. Citing Palmer v. Palmer, 36 Mich. 487; Laforge v. Jayne, 9 Barr. 410; Codman v. Rogers, 10 Pick. 112. Jameson v. Jameson. Opinion by Norton, J.

WILL - PERSONAL CHARGE ON DEVISEE FOR LIFE -DEVISE OF "WHAT REMAINS AFTER LIFE ESTATE To appear in 72 Missouri Reports.

- A testator by his will appointed his wife executrix of his estate, willed that all his just debts be paid, and that his wife raise his children as she might think proper, and bequeathed to her "all my (his) estate, both real and personal, during her natural life or widowhood, and what then remains to be equally divided among my (bis) children." Held, that the clauses relating to the payment of debts and the rearing of the children imposed no personal charge upon the wife, so as to afford an opportunity for the application of the rule, that when a will imposes a charge on the person of a devisee, it creates a fee; neither do the words what then remains" imply a power of disposition of the real estate, annexed to the life estate devised to the wife; they are to be limited to the personalty. The wife's interest in the realty therefore was a simple life estate. Citing Jackson v. Bull, 10 Johns. 151; Frogmorton v. Holyday, 3 Burr. 1624; Smith v. Bell, 6 Peters, 74; Brandt v. Va. Coal & Iron Co., 93 U. S. 332; Owen v. Ellis, 64 Mo. 77; Campbell v. Johnson, 65 id. 439; Owen v. Switzer, 51 id. 322; Gregory v. Cowgill, 19 id. 415; Siegwald v. Siegwald, 37 Ill. 435; Green v. Hewitt, 97 id. 113; S. C., 12 Cent. L. Jour. 58; and denying Ramsdell v. Ramsdell, 21 Me. 288; Scott v. Perkins, 28 id. 22; Shaw v. Hussey, 41 id. 495; Harris v. Knapp, 21 Pick. 413; Paine v. Barnes, 100 Mass. 470. Foote v. Sanders. Opinion by Henry, J.

RHODE ISLAND SUPREME COURT ABSTRACT.*

CONFLICT OF LAW-LEX LOCI CONTRACTUS- GOODS SOLD IN ONE STATE TO BE SENT TO ANOTHER BY CARRIER.-A., dealing in liquors in New York, sues B., a liquor dealer in Woonsocket in Rhode Island, for the price of liquors delivered to B. in New York, B. paying the freight to Woonsocket. Held, affirming Schlesinger & Blumenthal v. Stratton, 9 R. I. 578, that the sale was consummated in New York. Held, further, that the action was not prohibited by the Rhode Island statute making sales of liquor unlawful, and could be maintained. Evidence was adduced to show that the sale was the result of an order solicited in Woonsocket by A's agent. Held, that this was immaterial, for the order, if given for a sale in New York, was not violative of the Rhode Island statute, and if given for a sale in Rhode Island remained ineffective. Mack v. Lee. Opinion by Durfee, C. J. [Decided April 2, 1881.]

CORPORATION -RESIDENCE OF-STATE COURT CANNOT APPOINT RECEIVER OF FOREIGN.- A foreign corporation is for purposes of jurisdiction a "resident of the State which creates it; hence under the Rhode Island statute the Supreme Court of that State has no power to appoint a receiver of the estate of a foreign corporation doing business in Rhode Island, following Phillips v. Newton, 12 R. I. 489; Claflin v. Beach, 4 Metc. 392. The proper seat or "residence" of such a corporation is the State which created it and which continues it in existence, otherwise the corporation | might have its residence in a multitude of jurisdictions. And see Taft v. Mills, 5 R. I. 393, and cases cited. This view is confirmed by the decisions on the analogous question in relation to the jurisdiction of the United States courts, the more recent of which hold that a corporation is to be deemed “a citizen" of the State by which it was created without regard to the citizenship of the corporators. Ang. & Ames on Corp., § 407; Louisville Railroad Co. v. Letson, 2 How. U. S. 497; Ohio & Mississippi Railroad Co. v. Wheeler, 1 Black, 286; Muller v. Dows, 4 Otto, 444. The appearance and submission of the corporation are ineffectual

* To appear in 13 Rhode Island Reports.

to give jurisdiction. Stafford v. American Mills Co. Opinion by Durfee, C. J. [Decided May 30, 1881.]

PARTY

CREDITOR AT LARGE CANNOT BRING SUIT TO DETERMINE VALIDITY OF CLAIM AGAINST DEBTS.A., being a creditor of B., brought trespass on the case against C. and others, charging them with conspiring to prevent A. from obtaining payment out of the estate of B. and with receiving from B. fictitious mortgages, by means of which they took B.'s personalty and secreted it so that A. could not attach it and thus lost his claim. It appearing that A. had no lien on B.'s estate by attachment, levy or otherwise, and was only a creditor at large of B., held, that the action could not be maintained. There is some conflict of authority on

the question raised, but the more numerous and the better-reasoned and stronger cases are against the action. The principal ground of decision in these cases is that the damage, which is the gist of the action, is too remote, uncertain and contingent, inasmuch as the creditor has, not an assured right, but simply a chance of securing his claim by attachment or levy, which he may or may not succeed in improving. It is impossible to find any measure of damages for the loss of such a mere chance or contingency. Another ground, added in some of the cases, is that no action would lie in favor of such a creditor against the debtor for putting his property beyond the reach of legal process, if the debtor were to do it by himself alone, and that what would not be actionable if done by himself alone, cannot be actionable any the more when done by him with the assistance of others. The first of these grounds which is the fundamental one has been chiefly relied on.

Lamb v. Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 145; Moody v. Burton, 27 Me. 427, 431; Adler v. Fenton, 24 How. (U. S.) 407; Austin v. Barrows, 41 Conn. 287, 296; Kimball v. Harman, 34 Md. 407, 410; Bradley v. Fuller, 118 Mass. 239. See, also, Bump on Fraud. Conv. 505-6; Cooley on Torts, 124, 586. Klous v. Hennessey. Opinion by Durfee, C. J. [Decided June 14, 1881.]

SHERIFF -CANNOT ARREST OR DETAIN PRISONER IN COURT IF NOT HIS OWN BUT IN CASE OF ESCAPE-DUTY OF. - (1) The sheriff of one county cannot make an arrest in another county except on fresh pursuit in case of an escape, nor can he detain in such other county an arrested prisoner, except under a writ of habeas corpus. Platt v. The Sheriffs of London, Plowd. 35, 37; Hammond v. Taylor, 3 B. & A. 408; Watson's Sheriff, 60, 61; Avery v. Seeley, 3 Watts & Serg. 494. (2) A sheriff is not obliged to travel about with an arrested prisoner to enable the latter to procure bail. Page v. Staples. Opinion by Matteson, J. [Decided May 7, 1881.]

FINANCIAL LAW.

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NEGOTIABLE INSTRUMENT WHAT IS NOT FAILURE OF CONSIDERATION. In an action upon the following instrument, dated and signed by defendant: "On or before the first day of June, 1876, for value received in a Minnesota Seeder, I promise to pay to Thompson & Duncan, or order, $38, payable at the in New Ulm, with interest at 10 per cent per annum, payable annually, from date, until paid; and in addition I will pay five dollars attorney's fees if the first note is collected by suit. For the purpose of obtaining credit, I certify that I own in my own name 80 acres of land, with 40 acres improved, in the town of Lafayette, county of Nicollet, State of Minnesota, worth $1,500 above incumbrance. I also own $400 personal property over and above all indebtedness. The express condition of the sale and purchase of said seeder, No. 3096, is such that the title, ownership, and right of