We deem it unnecessary to considered the other alleged errors.

Judgment below reversed and cause remanded for a new trial.

[See note, 41 Am. Rep. 53; 34 id. 92; 36 id. 382.-ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

ASSIGNMENT FOR CREDITORS-PARTNERSHIP-TITLE OF ASSIGNEE-RELEASE.-(1) The firm of L.& Co., executed to plaintiff, who was a creditor, a general assignment of all its property for the benefit of creditors. By it the assignee after paying partnership debts, if a surplus remained, was directed to pay the individual debts of the copartners, and to return to them any residue. At the time of the assignment the firm held a claim against the United States government, which was in the hands of a broker for collection. Thereafter plaintiff under an agreement with the members of the firm, returned to them a portion of the assigned property, and released his claim against the firm, upon receipt of a bond of indemnity, conditioned for the payment by them of the other firm debts, and an assignment to himself of all their rights and interest in the assigned property, except that so returned to them. The government claim was allowed and paid by draft to the order of the firm, which was delivered to defendant L., one of the copartners; he transferred it to the other defendants who had knowledge of the assignment; they collected the same. Plaintiff had not been discharged as assignee, some of the firm debts remained unpaid, and it did not appear that the individual debts of the copartners had been paid. Held, that an action was properly brought by plaintiff, as assignee, to recover the proceeds of the collection; that title to the claim passed to him as such assignee by virtue of the assignment, and the trust was not discharged, nor was the title affected by the subsequent agreement, as it did not transfer to him, individually, the assets held by him as trustee, but only the interest of the firm in any surplus. Brennan v. Willson, 71 N. Y. 502; Em. Ind. Sav. Bank v. Roche, 93 id. 380. (2) A portion of the money restored by the government was paid by the old firm of L.& Co.,and as to that it is claimed the plaintiff cannot recover. Such prior firm was dissolved by the death of one of its members, but all its assets passed to the survivors who constituted the new firm. They became the legal owners. The referee finds that they took possession of the assets and assumed the liabilities of the old firm and continued the business in the same partnership name; that before the death of the deceased partner he had withdrawn all his share of capital and assets and was still a debtor to the firm. The new firm having legal title to the assets could transfer them (Egberts v. Wood, 3 Paige, 525; Nehrboss v. Bliss, 88 N. Y. 600; Hoyt v. Sprague, 13 Otto, 613; Palmer v. Myers, 43 Barb. 513, and if the executrix of the decedent had any equity to require their application to debts of the old firm as distinguished from those of the new, which her action made doubtful, she released the assignee from all such claims by her general release, and so ratified, if that were needed, the transfer to the assignee and freed the assets in his hands from any such claim. Stanford v. Lockwood. Opinion by Finch, J. [Decided April 22, 1884.]

WILL-EQUITABLE CONVERSION-WHAT NECESSARY TO CONSTITUTE.-The provisions of a will must at least be of such a character as to leave no doubt of the testator's intent to have his real estate converted into personalty, in order to sustain the theory of equitable conversion. In White v. Howard, 46 N. Y. 144, 162, it

was laid down by Grover, J., that "to constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of, and obligatory upon the trustees to sell it in any event. Such conversion rests upon the principle that equity considers that as done which cught to have been done.” In that case the testator was a resident of the State of Connecticut, and by his will authorized the sale of his real estate in Connecticut, and the investment of the proceeds of the same in bonds and stocks and real estate located in the New England States or in the State of New York. A trust was created of the rest and residue for certain purposes therein named, and it was held that the will gave the trustee no power to sell the real estate of which the testator died seised, situate in New York, but that the same was to be regarded as realty, and that the validity of the testamentary disposition thereof, and the rights of those claiming by descent, must be determined by the laws of this State. It is held in some of the reported cases that a positive direction to convert is required in order to authorize the application of the doctrine of the equitable conversion of real estate into personalty. Fowler v. Depau, 26 Barb. 224; Harris v. Clark, 7 N. Y. 242; Neely v. Grantham, 58 Penn. St. 433; 1 Jarm. on Wills (5th ed.), *584. The general tendency of the decisions is against an out-and-out conversion. Wright v. Trustees of M. E. Church, Hoff. Ch. *202, *208. When the question is, under the will, whether the devisee or the heir failing the devisee takes an interest in land as land or as money, the true inquiry is whether the devisor has expressed a purpose that in the events which have happened the land shall be converted into money. Smith v. Claxton, 4 Mad. Ch. 484. While the rule laid down requires express direction for the conversion of real estate into personalty, yet cases may arise where the conversion may be implied from an express authority to sell, contained in the will, and where such a conversion is absolutely necessary to carry out the purpose or scheme of the testator. See Power v. Cassidy, 79 N. Y. 602; 35 Am. Rep. 550; Lent v. Howard, 89 N. Y. 169; Gourley v. Campbell, 66 id. 169. Hobson v. Hale. Opinion by Miller, J.

[Decided April 29, 1884.]

MORTGAGE-FORECLOSURE POSSESSION ACQUIRED BY FRAUD NO DEFENSE IN EJECTMENT-LIMITATION.

(1) R. conveyed certain premises, subject to a mortgage thereon to T., who executed to R. a mortgage for part of the purchase-price; T. conveyed to H.; R. foreclosed his mortgage, making H. and wife parties defendant. The former however had died prior to the commencement of the foreclosure suit, summons was served upon the latter, judgment of foreclosure was rendered and the premises sold thereon to R., who by the aid of a writ of assistance put T. out and got into possession; he then paid the prior mortgage and conveyed the premises to defendants. In an action of ejectment brought by the heirs of H., held, that the possession of T., after his deed to H., must be assumed to have been as tenant under the latter, and upon his death, as tenant of his heirs, so that the possession of I. was theirs, and when he was expelled their possession was taken away; that as to them the judgment of foreclosure was a nullity, the possession so taken was unlawful and in all respects a trespass, and so was no defense to the action. In most of the cases which have upheld the right of the mortgagee, his possession was obtained with the consent, express or implied, of the owner of the land, although in some of them the mode of acquiring possession did not distinctly appear, and in many the rule is stated quite broadly and with little of restriction or limitation. Van Duyne v. Thayre, 14 Wend. 233; Phyfe v

[Decided April 29, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

TRIAL ERROR IN CHARGE.-When a case turns upon the question which of two witnesses whose testimony is antagonistic is to be credited, is is error for the court to instruct the jury as to which one is to be bebelieved rather than the other. Corn Exchange Bank v. Scheppas. Opinion by Miller, J. (See 55 N. Y. 579.-ED.)

[Decided April 21, 1884.]

REMOVAL OF CAUSE-SEPARATE RESIDENCE MUST EXIST WHEN SUIT BEGUN AND PETITION FILED.-We think the Circuit Court was clearly right in sending the case back to the State court. The suit was begun in 1870. At that time Shirley was a citizen of Texas. The proceeding to bring in the trustees of the sold-out company was not the commencement of a new suit, but the continuation of the old one. The trustees were nothing more than the legal representatives of the company that had been sold out, and took its place on the record as a party. The suit remained the same, but with the name of one of the parties changed. In Gibson v. Bruce, 108 U. S. 561, it was decided that under the act of March 3, 1875, ch. 137, a suit could not be removed on the ground of citizenship, unless the requisite citizenship existed both when the suit was begun and when the petition for removal was filed; and in Cable v. Ellis, 110 U. S. 389, that a substituted party comes into a suit subject to all the disabilities of him whose place he takes, so far as the right of removal is concerned. The record shows that Shirley was a citizen of Texas when the suit was begun, and the right of the railroad company to remove the suit, even if the necessary citizenship had existed, expired with the first term of the State court after the act of 1875 went into effect at which the case could have been tried. Long after this time had elapsed, the railroad company filed an answer to an amended petition and actually went to trial in the State court. This trial resulted in another judgment against the company, which was also reversed by the Supreme Court, and

the case sent back for another trial. The trustees were not brought in as parties until all this had been done. It follows that the necessary citizenship did not exist at the commencement of the suit, and that the petition for removal was filed too late. Without considering any of the other questions in the case, we affirm the order to remand. Houston & Texas R. v. Shirley. Opinion by Waite, C. J. [Decided April 14, 1884.]

JURISDICTION -COURT WILL EXAMINE RECORDCITIZENSHIP-REVERSAL CARRIES COSTS.- - (1) It is the duty of the Supreme Court, of its own motion, to note critically the record upon which a case comes before it, in order to test the jurisdiction of the court below. This rule was adopted in Capron v. Van Noorden, 2 Crauch, 126, decided in 1804, where a judgment was reversed on the application of the party against whom it had been rendered in the Circuit Court, for want of the allegation of his own citizenship, which he ought to have made to establish the jurisdiction which be had invoked. This case was cited with approval by Chief Justice Marshall in Brown v. Keene, 8 Pet. 112. See also Jackson v. Ashton, id. 148; Bors v. Preston, 30 Alb. L. J. 111 U. S. The course of the court, is when no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even when it does not appear, affirmatively, that it does exist. Pequignot v. Pennsylvania R. Co., 16 How. 104. It acts upon the prin ciple that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted. Cutler v. Rae, 7 How. 729. I consider therefore that when there was a plea to the jurisdiction of the Circuit Court in a case brought here by a writ of error, the first duty of this court is sua sponte, if not moved to it by either party, to examine the sufficiency of that plea, and thus to take care that neither the Circuit Court nor this court shall use the judicial power of the United States in a case to which the Constitution and laws of the United States have not extended that power. United States v. Huckabee, 16 Wall. 414; Barney v. Baltimore, 6 id. 280; Thompson v. Railroad Co., id. 134; Hurst v. Hollingsworth, 100 U. S. 100; Williams v. Nortawa, 104 id. 209. In Grace v. American Central Ins. Co., 109 U. S. 278, it is true that this court passed upon all the questions in the case affecting its merits, although it reversed the judgment because the jurisdiction of the Circuit Court was not apparent; but it was thought convenient and proper to do so, in that case, because the record itself made it probable that its omission of the statements necessary to show jurisdiction was inadvertent, and might be supplied for a future trial in the same court. In the present case however the want of jurisdiction appears affirmatively from the record. (2) To entitle a party to a removal of a cause to a Federal court, it must appear affirmatively from the record, that at the time of the bringing of the suit in the State court, and at the time of the petition for removal, the parties, plaintiff and defendant, were citizens of separate States. Grace v. American Central Ins. Co., 109 U. S. 278-283; Robertson v. Cease, 97 id. 646. (3) A party having wrong. fully removed a case to a Federal court, and upon adverse judgment, then prosecuted an appeal to the Supreme Court, where the judgment below is reversed on account of want of jurisdiction, is responsible for all costs, since to him is attributable the error upon which his success is based. Winchester v. Jackson, 3 Cranch, 514; Assessors v. Osbornes, 9 Wall. 567--575; Montalet v. Murray, 4 Cranch, 46. The whole subject was very much discussed by Mr. Justice Woodbury in

the case of Burnham v. Rangeley, 2 Woodb. & Min. 417--424, where he collects a large number of authorities on the subject. In the present case, the writ of error is not dismissed for want of jurisdiction in this court; on the contrary, the jurisdiction of the court is exercised in reversing the judgment for want of jurisdiction in the Circuit Court; and although in a formal and nominal sense the plaintiffs in error prevail in obtaining a reversal of a judgment against them, the cause of that reversal is their own fault in invoking a jurisdiction to which they had no right to resort, and its effect is, to defeat the entire proceeding which they originated and have prosecuted. Railroad Co. v. Swan. Opinion by Matthews, J. [Decided April 21, 1884.]

to them, and thus considered the deed in question is a valid one. Burrill on Assignments, 128; Norton v. Kearney, 10 Wis. 448; Van Vleet v. Slauson, 45 Barb. 317; Kruse v. Prindle, 8 Oregon, 158; Burrow v. Lehndorff, 8 Iowa, 96; Holt v. Bancroft, 30 Ala. 195; Downing v. Kintzing, 2 S. & R. 326. It is unimportant whether the assignment reserves to the assignor any surplus remaining after payment of the consenting creditors. The statute itself regulates that matter. An assignment providing for the release of the debtor by consenting creditors is valid, and as for non-consenting creditors the statute provides for them and the manner of enforcing their claims. Cases will be found fully collected in notes to Burrill on Assignments, sections 184-200. See also Livermore v. Jenckes, 21 How. 126; Brashear v. West, 7 Pet. 609. Keating v. Vaughan. Opinion by Stayton, J. [Decided May 9, 1884.]

TEXAS SUPREME COURT ABSTRACT.

MUNICIPAL CORPORATION POWER TO BORROW MONEY-CONFLICT IN AUTHORITIES.-The question of the implied right of municipal corporations to borrow money, or issue bonds with all the qualities of paper negotiable by the law merchant, has undergone frequent adjudication in the American courts. It has also been extensively discussed by the ablest elementary writers and commentators upon the subjects to which the question properly belongs. The weight of authority, so far as the State decisions are concerned, seems to favor the power. The majority of elementary writers are decidedly opposed to it. Mills v. Gleason, 11 Wis. 470; Bank v. Chillicothe, 7 Ohio, part 2, p. 31; Williamsport v. Commonwealth, 84 Penn. St. 487; Clarke v. School District, 3 R. I. 199; City of Galena v. Corinth, 48 Ill. 423; contra Hackettstown v. Sunckham, 37 N. J. L. 191; Knapp v. Hoboken, 39 N. Y. 394; Dent v. Cook, 45 Ga. 323; Hamlin v. Meadville. 6 Neb. 227; Beaman v. Board of Police, 42 Miss. 238; Capinartin v. Police Jury, 23 La. Ann. 190; Dill. Munic. Bonds, 12, 13, 14; Dill. Munic. Corp., § 117, et seq; Burroughs on Pub. Sec., ch. 5; 2 Daniel Neg. Inst. 1527 et seq. In the Supreme Court of the United States, where the point is most frequently raised, the question is in a very unsettled state, and some of the decisions of that court seem difficult to reconcile with each other. Police Jury v. Button, 15 Wall. 656; Wells v. Supervisors, 102 U. S. 625; Mayor v. Ray, 19 Wall. 484; Lynde v. County, 16 id.6; Hitchcock v. Galveston, 96 U. S. 341; see also Gause v. Clarksville, 5 Dill. 165. It is to be noted however that whenever in that tribunal the power has been sustained, it has been by a divided court, whenever it has been denied the court has been unanimous. The decisions, too, have been made to rest more or less upon the policy of the particular State in which the cases have arisen, in reference to the issuance of negotiable bonds by municipal corporations. Robertson v. Breedlove. Opinion by Willie, C. J.

[Decided March 24, 1884.]

ASSIGNMENT FOR CREDITORS-INVENTORY PART OF -PROVIDING FOR RELEASE OF ASSIGNOR.-Where the deed of assignment conveyed certain designated property, without in terms declaring that the property thus conveyed was all the assignor possessed, except that exempt from forced sale, but the inventory made a part of the assignment, and the required oath contained clear and unequivocal declarations that the property conveyed by the deed, and named particularly in the inventory, was all the estate of the assignor, of every character, which he owned, except named property which was exempt from forced sale, held, those papers should be taken together as the assignment, and the deed considered with reference

PENNSYLVANIA SUPREME COURT

ABSTRACT.

NEGLIGENCE-EXPLOSION OF GAS IN SEWER-NOTICE -CONTRIBUTORY NEGLIGENCE.-Where injury has resulted from a defect in a sewer or gas main, notice or knowledge will be assumed when the circumstances are such that the municipal authorities, by the exercise of proper and reasorable diligence, might have known of the defect which caused the damage. If a person knew that illuminating gas was escaping into his house from a main, and that it might explode, it was his duty to withdraw from the premises or to take suitable precautions for his safety. Whether he had such knowledge or not was a question for the jury. An ordinary man is not bound to know that illuminating gas when mixed in certain proportions with the common air is explosive. As was said in the case of the Oil City Gas Co. v. Robinson, 99 Penn.St.1, such knowledge might be presumed of an expert, or of one whose education would necessarily involve some knowledge of chemistry, but it would be going too far to presume such knowledge of a saloon-keeper. A. was injured by an explosion of illuminating gas, which had found its way into his house through an untrapped drain leading from a sewer belonging to the municipality. The sewer received the gas from a gas main whose end, situated near A.'s home, had been stopped by a wooden plug, which had rotted out. A patrolman and others testified to noticing the smell of illuminating gas in the street ten or twelve days before the explosion. Held, that this evidence should have been submitted to a jury in order to determine the question whether the municipal officials, by the exercise of a proper diligence could have discovered the defect in the gas main in time to have had it properly repaired before the explosion. McLaughlin v. City of Corry, 27 P. F. Smith, 109; Fritsch v. Clty of Allegheny, 10 Nor. 226. Kibele v. City of Philadelphia. Opinion by Gordon, J. [See 30 Eng. R. 569.-ED.]

[Decided Feb. 18, 1884.]

BOUNDARY CENTER OF STREET- COVENANT EVIDENCE OTHER THAN MAPS-REFERENCE TO DEED -DEDICATION LIMITATIONS.-(1) It is well settled law that on the sale of a lot bounded by a street, the title passes to the center of the street, if the grantor had title to the land covered thereby, unless he reserved it either expressly or by clear implication. Paul v. Carver, 2 Casey, 223; Cox v. Freedley, 9 id. 124; Trutt v. Spotts, 6 Nor. 339; Spackman v. Steidel, id. 453. When one, who is the proprietor of the portion of the town in which the lands lie, sells and conveys the lots according tc a plan which shows them to be on a street

or alley, it creates an implied covenant of the existence of the street or alley. Trutt v. Spotts, supra. The fact that it does not appear ou the borough maps or plans is immaterial as between parties claiming under the original owner and affected with knowledge of his plan. (2) In the absence of the original draft or plan employed by the grantor its place may be supplied from other evidence from which the jury are to determine the location of the disputed street or alley. (3) Mere different and disconnected acts of trespass extending over parts of several years are clearly insufficient to establish any right to obstruct an alley under the statute of limitations or to bar the public character which has been stamped on the land by its dedication to public use as an alley. Transue v. Sell. Opinion by Paxson, J. [As to first point see 28 Am. Rep. 75; 32 id. 719; 23 id. 229; 31 Eng. R. 689.-ED.] [Decided March 24, 1884.]

MASTER AND SERVANT-TO FIX LIABILITY, RELATION OF, MUST EXIST-RESPONDEAT SUPERIOR.-Where the owner of a property refused to allow the servants of a third party to carry down through his store some heavy bags of paper, which the said third party had purchased from him, and which were stored in the upper part of the building, but told them they could throw them out of the window, the fact of such instruction does not create such a relation between the owner and the said servants as to render him liable when they do this in such negligent manner as to injure one passing by in the street below. The case of Stevens v. Armstrong, 10 N. Y. 345, is in point. There the defendants were merchants in the city of Troy, N. Y. They sold to the Messrs. Plum a box which was in the upper loft of the defendant's store. The Messrs. Plum sent their porter for it. The latter went upon defendants' premises to remove it, and while engaged in lowering the box with a tackle an accident occurred through the porter's negligence, by means of which the plaintiff was injured. The Court of Appeals ruled that "the defendants could not be held liable for the negligent acts of the porter, by virtue of the principle applicable to the relation of master and servant unless that relation in fact subsisted. Knowing and permitting the porter to go into the loft to get the box. his being in fact at the time the servant of Plum, and actually acting in his employment, did not constitute him in any degree the agent or servant of the defendants while engaged in removing the box. The relation of master and servant cannot be created but by contract, express or implied, between the master and servant." The only distinction between that case and the one in hand consists in the fact that in the latter Shoneman directed the bales to be thrown out of the window, which is a distinction without a difference. If in the New York case the defendants had directed the porter to lower the box by means of the tackle they would not have been responsible for his negligenee in doing so any more than Mr. Shoneman is liable for having directed Hemingway's servants to remove the bales by way of the window. I concede that if Shoueman had directed the manner of throwing the bales out of the window, and that if this particular bale had been thrown in accordance with such direction, he would have been responsible. This is as far as the cases go. McCullough v. Shoneman. Opinion by Paxson, J.

the east and north wall of the building to be erected by them on the lot conveyed, and that for the purpose of securing light and air to the said building to be erected as aforesaid, no wall, building or obstruction whatever shall hereafter at any time be built, erected or put by the said A., his heirs or assigns, on his said remaining ground within fourteen feet of the east line of the hereby granted lot." A provision was added that if at any time the building ceased to be used as a place of religious worship, then the right of placing the windows in the east wall should cease, and the grantee, his heirs and assigns, might thereupon close the same. The trustees erected the building, and after using it for many years as a church, sold it to the city of Philadelphia in 1872, since which time it has been used as a public school. C. having in the meantime acquired title to the remaining ground subject to the easement, began the erection of a brass foundry, the wall of which was distant ten feet from the east wall of the public school building, whereupon the city prayed for an injunction to restrain the erection of such wall. Held, that though the building erected by the trustees of the church had ceased to be used as a place of religious worship, and the right to maintain windows in the east wall thereof accordingly ceased, nevertheless the covenant not to erect any building within fourteen feet remained unimpaired. And that the injunction prayed for should be granted accordingly. Held, that the value of such covenant does not consist in furnishing light and air alone; security against fire and annoyance from noise being additional reasons for upholding it. Yeaton's Appeal. Opinion per Curiam.

[Decided Jan. 28, 1884.]

EVIDENCE-RESPONSIVE ANSWER-EJECTMENT-DIVIDING CLAIM.-(1) The rule that the evidence of two witnesses, or of one witness and corroborative circumstances equivalent to another, is necessary to overcome a responsive answer in chancery does not apply when the answer is made on "information received." The evidence of one witness may then be sufficient. Eaton's Appeal, 16 P. F. Smith, 483; Greenl. Ev., § 287. (2) Where as to part of the property in dispute ejectment would be an adequate remedy, yet if the title to the balance could only be settled by bill in equity the plaintiff will not be compelled to divide his claim, and the entire subject-matter will be adjudicated in equity. Locher's Appeal. Opinion by Sterrett, J. [Decided Jan. 7, 1884.]

COVENANT-TO PAY INTEREST SURVIVES-LIMITATION-POWER OF SALE IN EXECUTORS.—(1) A covenant entered into by a decedent in his life-time, guaranteeing the payment of interest on a mortgage until the mortgaged premises are so improved as to constitute an adequate security for the mortgage debt, survives him, and can be enforced against his executors and administrators, so as to recover interest accruing after the death of the decedent. Quain's Appeal, 10 Harris, 510, explained, and its principle not extended to the present case. See also Gardiner v. Painter, 3 Phila. R. 365; Williams' Appeal, 11 Wright, 283. (2) The lien of such a covenant as is above specified can only be continued against the real estate of the decedent by bringing suit thereon within five years of the decedent's death, or by filing a copy of said covenant within said period. (3) A mere testamentary power of sale vested in executors to sell real estate will not work a couversion. There is no direction here to sell; only a power. It ought to be settled by this time that in order to work a conversion there must be either (1st) a positive direction to sell, or (2d) an absolute necessity to sell in order to execute the will, or (3d) such a blending of real and personal estate by the testator in his will as

to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the said fund as money. In each of the two latter cases an intent to convert will be implied. These propositions are settled by a line of authorities. It is sufficient to refer to the late cases of Jones v. Caldwell, 1 Out. 42 Roland v. Miller, 11 Week. Not. 431; Lindley's Appeal, 13 id. 65. We have neither of these requirements in the will of this testator. The most that can be said is that he made a mistake as to the extent of his estate and a sale of his real estate became necessary in order to pay his debts. But this is not to the purpose. The scheme of his will did not contemplate this, and if by reason of the depreciation of his property, or for other cause, a necessity to sell the real estate arose which was not foreseen by the testator, it will not work a conversion, for the obvious reason that a conversion is always a question of intent. Hunt's Appeal. Opinion by Paxson, J.

[Decided Feb. 4, 1884.]

NEVADA SUPREME COURT ABSTRACT.

TAXATION--CIRCUS OF NON-RESIDENT.-A travelling circus and menagerie, owned by a non-resident, and brought into this State to be exhibited at various points, the owner intending to take it into another State after such exhibitions, is not subject to taxation in this State. As well might a resident of another State be taxed on his money and team, if he comes on a visit to the State, to remain a week. Barues v. Woodbury, 17 Nev.383; Conley v.Chedic,7 id.341; State v. Engle, 34 N. J. Law, 427; Hoyt v. Com., 23 N. Y. 240; id. 245. Robinson v. Longley. Opinion by Leonard, J.

[Decided Aug., 1883.

AGENCY-RESTRICTION ON AUTHORITY-SALE-VEN. DOR WITHOUT TITLE.-(1) It is ordinarily the duty of parties who deal with agents to ascertain the extent of their authority; but when a principal puts the agent forward as a general agent, or places him in a position where others are justified in the belief that his powers are general, the restrictions privately imposed on the agent are immaterial, except as between him and the principal. A railroad superintendent may be presumed to have authority to determine an ordinary matter, such as the receipt of fuel for the company. F. & M. Bank v. B. & D. Bank, 28 N. Y. 425; T. W. & W. R. Co. v. Rodrigues, 47 Ill. 188; McKiernan v. Lenzen, 56 Cal. 61; Southgate v. A. & P. R. R. Co., 61 Mo. 89; In re German M. Co., 19 Law & Eq. 591; Walker v. G. W. R. Co., 2 L. R. Exch. 228; Wild v. N. Y. & A. S. M. Co., 59 N. Y. 644. (2) Where a purchaser has notice that the goods about to be sold to him are not the property of the vendor, the owners after the sale may recover the goods or their value. Sacalaris v. Eureka & P. R. Co. Opinion by Belknap, J. [Decided Nov. 24, 1883.]

RHODE ISLAND SUPREME COURT

ABSTRACT.

ARBITRATION AND AWARD-EX PARTE EVIDENCEALL MUST MEET-MAJORITY MAY DECIDE.-Under an agreement of arbitration by which differences between A. and B. relative to certain premises were submitted to two arbitrators who, if they could not agree, were to call in a third, and the decision of any two of the three was to be final; a third was called in, and of the three

two of them, in the absence of the other, examined the premises and heard ex parte statements from B., A. not being present and not having been notified; the third also examined the premises alone, and heard ex parte statements from B. in the absence of A., and without notice to him, the information thus gained being influential in determining the award; and subsequently the three heard ex parte statements from A. in the absence of B., and without notice to him. Held, that the award was illegally made and null: First, because the parties interested were not notified; second, because the arbitrators did not act together. The reasoning of this court in the case of Cleland v. Hedly, 5 R. I. 163, with regard to the illegality of receiving any ex parte evidence in cases of this sort, without notice to the opposite party, is abundantly supported by the authorities, and we are content with the law as therein stated. It is decisive of the case at bar upon that point. See also Selby v. Gibson, 1 Har. & J. 362, note; Lutz v. Linthicum, 8 Pet. 165; Bushey v. Cul ver, 26 Md. 534; Collins v. Vanderbilt, 8 Bosw. 313; Bullitt v. Musgrave, 3 Gill, 31; Webber v. Ives, 1 Tyler, 441; Frey v. Vanlear, 1 Serg. & R. 435; Chaplin v. Kirwan, 1 Dall. 187; Peters v. Newkirk, 6 Cow. 103; Banton v. Gale, 6 B. Mon. 260. The second reason why the award in this case cannot be sustained is that the arbitrators did not act together. It is a well-settled rule that where the submission is to the several arbitrators jointly, all must act and act together. And this rule obtains as well in those cases where the majority are authorized to make au award which shall be binding upon the parties to the submission, as where entire unanimity is required. Said Mr. Justice Nelson in Harris v. Norton, 7 Wend. 534: "Referees have no power to act unless all attend. The concurrence of two, had the third been present, would have been enough; but only two attending, they could do no act affecting the rights of the parties." And the law is the same with regard to arbitrators as to referees. In Hoff v. Taylor, 5 N. J. Law, 829, the court states the rule as follows: "All are to deliberate, consult, reason; but the weight or majority of opinion is the rule. The whole court is to hear, but the claim which gives the most suffrages is to prevail." Says Mr. Justice Breece, in Smith v. Smith, 28 Ill. 56, 60: "They must each be present at every meeting, and the witnesses and the parties must be examined in the presence of them all; for the parties are entitled to have recourse to the arguments, experience and judgment of each arbitrator at every stage of the proceedings brought to bear on the minds of his fellow judges, so that by conference they shall mutually assist each other in arriving at a just conclusion. To the same effect are both the English and American decisions almost without exception. See Kyd on Awards, 105, 106; Russell on Arbitration, 209; Morse on Arbitration and Award, 152, 153; Thompson v. Mitchell, 35 Me. 281; In re Plews & Middleton, 6 Q. B. (N. S.) 845; Little v. Newton, 9 Dowl. P. C. 437; Lord v. Lord, 5 El. & B. 404; Lyon v. Blossom, 4 Duer, 318, 325; McInroy v. Benedict, 11 Johns. Rep. 402. Wood v. Helme. Opinion by Tillinghast, J. To appear in 14 R. I. Rep. [See 20 Eng. R. 522-ED.]

MICHIGAN SUPREME COURT ABSTRACT.

PROCESS-ONE ATTENDING TRIAL AS PARTY OR WITNESS SERVICE ON, SET ASIDE.-The relator resides at Bay City, in the county of Bay. He was a party to two suits pending in the county of Huron, and went to Bad Ax to attend on the trial thereof. He was examined as a witness in one of the causes, and the other was continued. He makes oath that he was a