mortgage creditors who have a lien upon it under their mortgage, can be taken away from them and used to pay the general creditors of the road. All we then decided, and all we now decide is, that if current earnings are used for the benefit of mortgage creditors before current expenses are paid, the mortgage security is chargeable in equity with the restoration of the fund which has been thus improperly applied to their use. Burnham v. Bowen. Opinion by Waite, C. J. [Decided May 5, 1884.] DIVORCE -- MARRIAGE DOWER-LEX REI SITEOREGON CODE, §§ 495, 497.-A divorce from the bond of matrimony bars the wife's right of dower, unless preserved by the lex rei sitæ. Barber v. Root, 10 Mass. 260; Hood v. Hood, 110 id. 463; Rice v. Lumley, 10 Ohio St. 596; Lamkin v. Knapp, 20 id. 454; Gould v. Crow, 57 Mo. 200; 4 Kent Com. 54; 2 Bish. Mar. & Div. (6th ed.), §§ 706, 712, and cases cited. In each of the Massachusetts cases just referred to, the divorce was obtained in another State. The ground of the de. cision of the Court of Appeals of New York in Wait v. Wait, 4 N. Y. 95, by which a wife was held not to be deprived of her right of dower in her husband's real estate by a divorce from the bond of matrimony for nis fault was, that the Legislature of New York, by expressly enacting that "in case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed," had manifested an intention that she should retain her right of dower in case of a divorce for the misconduct of the husband. See also Reynolds v. Reynolds, 24 Wend. 193. The decisions of the Supreme Court of Pennsylvania in Colvin v. Reed, 55 Penn. St. 375, and in Reel v. Elder, 62 id. 308, holding that a wife was not barred of her dower in land in Pennsylvania by a divorce obtained by her husband in another State, proceeded upon the ground that in the view of that court, the court which granted the divorce had no jurisdiction over the wife. And see Cheely v. Clayton, 110 U. S. 701. Whether a statute of one State, securing or denying the right of dower in case of divorce, extends to a divorce in a court of another State, having jurisdiction of the cause and of the parties, depends very much upon the terms of the statute, and upon its interpretation by the courts of the State by the Legislature of which it is passed, and in which the land is situated. In Mansfield v. McIntyre, 10 Ohio, 27, it was held that a statute of Ohio, which provided that in case of divorce for the fault of the wife she should be barred of her dower, was inapplicable to a divorce obtained by the husband in another State; and the wife was allowed to recover dower, upon grounds hardly to be reconciled with the later cases in Ohio and elsewhere, as shown by the authorities before referred to. In Harding v. Alden, 9 Greenl. 140, a wife who had obtained a divorce in another State recovered dower in Maine under a statute, which upon divorce for adultery of the husband, directed "her dower to be assigned to her in the lands of her husband in the same manner as if such husband was actually dead;" but the point was not argued, and in the case stated by the parties it was conceded that the demandant was entitled to judgment if she had been legally divorced. The statute of Missouri, which was said in Gould v. Crow, 57 Mo. 205, to extend to divorces obtained in another State, was expressed in very general terms: "If any woman be divorced from her husband for the fault or misconduct of such husband, she shall not thereby lose her dower; but if the husband be divorced from the wife, for her fault or misconduct, she shall not be endowed." Under section 495 of the Oregon Code of Civil Procedure, as amended by the statute of December 20, 1865, providing, that whenever a marriage shall be declared void or dissolved, the party at whose prayer the decree shall be made shall be entitled to an undivided third part in fee of the real property owner by the other party at the time of the decree, in addition to a decree for maintenance under section 497, and that it shall be the duty of the court to enter a decree accordingly, a wife obtaining a decree of divorce in a court of another State, having jurisdiction of the cause and of the parties, acquires no title in the husband's land in Oregon. Bamford v. Bamford, 4 Oreg. 30; Wetmore v. Wetmore, 5 id. 469; Hall v. Hall, 9 id. 452: Weiss V. Bethel,8 id.522; Oregon Code of Civ. Pro., §§ 376,377,383. In Barrett v. Barrett, 5 Oreg. 411,the suit was not to assert a title in real estate, but to enforce, out of the land fraudulently conveyed by the husband to his daughter, payment of the alimony awarded to this appellant by the California decree of divorce, which was held in accordance with the decisions of other courts to be so far in the nature of a debt, that the wife might sue the husband for it in another State, and might contest the validity of a conveyance of property made by him with the fraudulent intent of preventing her from recovering the alimony. Barber v. Barber, 21 How. 582; Livermore v. Boutelle, 11 Gray, 217; Bouslough v. Bouslough, 68 Penn. St. 495. In De Godey v. De Godey, 39 Cal. 157, and in Whetstone v. Coffey, 48 Tex. 269, the point decided was that land acquired by the husband or the wife during the marriage, the title in which by the local law vested in neither separately, but in both in common, continued to belong to both after the divorce, and that a division thereof between them, if not made by the decree of divorce, might be obtained by a subsequent suit for partition in the State in which the divorce was granted and the land was situated. Barrett v. Failing. Opinion by Gray, J. [Decided May 5, 1884.] FRAUD JUDICIAL SALE OBTAINED BY, VOID CREDITORS.-When a scheme is entered into to circulate a fact that a large indebtedness of the succession to an estate exists in favor of the heirs, being sufficient to absorb the estate, and being secured by a mortgage; to depreciate the value of the estate so that the supposed indebtedness would cover it; to put forth claims to the estate which would complicate the title and affect the salable value of the land; and to procure judicial sale by which the title might be cleared of incumbrances, and the land divided among the heirs free from liability for the debts of the estate, and the sale is so accomplished, the property being appraised by incompetent persons at a grossly inadequate value, the sale is in fraud of creditors, and null and void. The most solemn transactions and judgments may, at the instance of the parties, be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. It is generally parties that are the victims of fraud. The court of chancery is always open to hear complaints against it, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court; but it will scrutinize the conduct of the parties, and if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it. Story's Eq. Jur., §§ 1570-1573; Kerr on Fraud and Mistake, 352-353. This subject was discussed in Gaines v. Fuentes, 92 U. S. 10; and Barrow v. Hunton, 99 id. 80. In the latter case, speaking of the proceeding in the Louisiana practice to procure nullity of a judgment, we said, "if the proceeding is merely tantamount to the common-law practice of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review on appeal, it would belong to the latter category" (that is, a supplementary proceeding, connected with the original suit), "and the United States court could not properly entertain jurisdiction of the case. *** On the other hand, if the proceedings are tantamount to a bill in equity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding; * * * a new case arising upon new facts, although having relation to the validity of an actual judgment or decree, etc." In Jackson v. Ludeling, 21 Wall. 616, it is said: "A sale may have been conducted legally in all its process and forms, and yet the purchaser may have been guilty of fraud, or may hold the property as a trustee. In this case the complainants rely upon no irregularity of proceeding, upon no absence of form. The forms of law were scrupulously observed. But they rely upon faithlessness to trusts and common obligations, upon combinations against the policy of the law and fraudulent, and upon confederate and successful efforts to deprive them wrongfully of property in which they had a large interest, for the benefit of persons in whom they had a right to place confidence. Johnson v. Waters. Opinion by Bradley, J. [Decided May 5, 1884.] MINNESOTA SUPREME COURT ABSTRACT NEGLIGENCE-CAUSING DEATH- PERSONAL REPRESENTATIVE MUST SUE.-The action is brought by a father to recover for the killing, through the alleged negligence of defendant, of his son, a child 17 mouths old, whereby the plaintiff, as he alleges, has been and will be deprived of the services of said son. The statute provides: "A cause of action arising out of an injury to the person dies with the person of either party." Gen. St. 1878, ch. 77, § 1. This is only declaratory of the rule at common law. Insurance Co. v. Brame, 95 U. S. 754, and cases cited; Carey v. Berkshire R. Co., 1 Cush. 475. The statute (Gen. St. 1878, § 2, ch. 77) creates a cause of action when death is caused by the wrongful act or omission of any party, and vests it in the personal representative, to wit, the executor or administrator. No one else can sue upon it. Nash v. Tousley, 28 Minn. 5. Scheffer v. Minneapolis, etc., R. Co. Opinion by Gilfillan, C. J. [Decided May 31, 1884.] GARNISHMENT ASSIGNEE IS NOT SUBJECT TO-CUSTODIA LEGIS.-Under our statute, the assignee is not, by virtue of an assignment, garnishable in a suit against the assignor, unless at the date of service of the garnishee summons he has in his hands or under his control property, money, or effects belonging to the assignor, or owes the assignor some indebtedness absolutely, and without depending on any contingency. Gen. St. 1878, ch. 66., §§ 167, 170-172. After the property, money, or effects are assigned they no longer belong to the assignor, for the assignment passes the entire legal and equitable interest therein to the assignee. Donohue v. Stearns, 17 N. W. Rep. 381. That the assignment creates no such indebtedness as the statute cited speaks of, on the part of the assignee to the assignor, is apparent. To these statutory grounds for holding that the assignee is not garnishable is to be added the further insuperable objection, that under the assignment the property is in custodia legis, and therefore not to be reached by levy or garnishment. Upon the whole subject of the non-garnishability of the assignee, we refer to In re Mann, 19 N. W. Rep. 347; Legrise v. Pierse (Texas Sup. Ct.), 17 Reporter, 477; Colby v. Coates, 6 Cush. 558; Dewing v. Wentworth, 11 id. 499; Drake Attach., § 50; Donohue v. Stearns, supra. Lord v. Meacham. Opinion by Berry, J. [Decided May 1, 1884.] MUNICIPAL CORPORATION-ORDINANCES DELEGATION OF POWER-LEGISLATIVE ACT-CERTIORARI.-The city council of Minneapolis has power to make reasonable regulations as to where, or within what parts of the city, the business of vending, dealing in, or dispos ing of spirituous, vinous, fermented, or malt liquors may be carried on. This is a legislative power, which they must exercise themselves by ordinance passed in the manner prescribed by the city charter. They cannot delegate this power to the mayor. A mere legislative act of municipal corporations cannot be reviewed on certiorari. Cases from New Jersey have been cited as going that far. The courts of that State have probably extended the application of this writ further than those of any other State; but our attention has not been called to any case, even from that State, which goes as far as counsel claim. The cases of Camden v. Mulford and Carron v. Martin, 26 N. J. Law, 49, 594, cited by petitioner, do not go to any such length. All that was decided in the first case was that an ordinance authorizing a new improvement to be made, such as opening and paving new streets, and constructing sewers, by which the property of specific individuals may be directly taxed to defray the expense, was a judicial act. In the second case it was merely held that the Supreme Court had a right to review on certiorari the proceedings of corporations that do acts affecting the rights and property of individuals, which are judicial or quasi judicial in their nature. Dill. Mun. Corp., § 926, is also cited as authority that courts will on certiorari examine the proceedings of municipal corporations, whether legislative or judicial. But that learned author does not say so. He is simply stating the rule that certiorari will lie to review the proceedings of such corporations. But that he did not intend to convey the idea that mere legislative or ministerial acts could be thus reviewed is evident, for at least two reasons: First, not a single authority cited in support of the text sustains such a proposition. Second, the author immediately adds, by way of illustration: "Thus if no appeal or other mode of review be given, and if there be no statute to the contrary, the legality of convictions in municipal courts will be reviewed on certiorari. So under the same circumstances, and in the same way, the proceedings of municipal corporations in opening streets, in making local assessments, in levying taxes, in contested election cases, and the like will be examined and reviewed to ascertain whether they are regular and legal," all of which it will be found from an examination of the cases cited, have been held to be judicial acts. Matter of Wilson. Opinion by Mitchell, J. [Decided June 3, 1884 ] DAMAGES-CONTRACT-ASSUMING TO ACT AS AGENT --IMPROVEMENTS MADE IN GOOD FAITH.-Defendant, wrongfully assuming to be the authorized agent of the real owner, induced the plaintiff to enter into the contract of purchase in question. In such cases the injured party has a remedy in the nature of an action on the case against the agent. 2 Kent Comm. *632; Story Ag., § 264. The pleadings are, we think, sufficient to support the action on this ground. The contract which is annexed to the complaint shows that defendant assumed to act as the duly authorized agent of the owner in making the sale, which is also alleged in the complaint and admitted in the answer; and the complaint also sufficiently shows that plaintiffs were thereby misled to their damage. It is not material that the contract fails to disclose the name of the owner. It is clear enough that defendant assumed to sell as agent, and not as owner. The plaintiffs took nothing by such unauthorized contract; aud having been ejected from the premises at the suit of the owner, with the loss of improvements made in good faith, the trial court properly held that they were entitled to recover, in addition to the damages for the loss of their bargain, the amount expended in making such improvements. The contract itself provides that the plaintiffs should build a house upon the lot within three months; and his loss in consequence of such expenditure is the natural and legitimate result of the unauthorized acts of the defendant. Skaaraas v. Finnegan. Opinion by Vanderburgh, J. [Decided May 17, 1884.] which he testifies; but that as respects this matter of NEW JERSEY COURT OF CHANCERY AB- MARRIAGE-SETTLEMENT — POWERS OF TRUSTEE--REVOCATION CLAUSE.-Where a marriage sttlement authorizes and empowers the trustee to sell and invest and re-invest the trust property at the direction of the wife, and to pay over the income to her, with a provision that if she survives her husband the trustee is to re-convey the property to her, and it contains no revocation clause, she cannot, during her husband's proceeds of the sale of the trust property. Buchanan v. Paterson. Opinion by Runyon, Chancellor. SALE-WHEN CONDITIONAL AND NOT MORTGAGEIMPEACHING WITNESS.-Where A. conveys land to B. by absolute deed, and B. at the same time executes to A. a bond or agreement conditioned to reconvey the land to A. upon payment of a certain sum of money at a time specified, the transaction between the parties upon this simple state of facts purports to be, and prima facie is, what is called a conditional sale and not a mortgage. Except in Pennsylvania, where a somewhat peculiar doctrine appears to prevail, an examination of the adjudged cases will generally show that where a deed absolute and a simultaneous bond or agreement for reconveyance have been held to constitute a mortgage, other facts have appeared in addition to the simple facts of a deed and bond or agree-lifetime, require of the trusstee the payment of the ment. Henley v. Hotaling, 41 Cal. 22; Haynie v. Robertson, 58 Ala. 37; 1 Jones Mortg., § 260 et seq. A mortgage is a security for something to be paid or performed; hence facts showing that a deed upon its face absolute is really intended as a security, show it to be a mortgage. Instances of this are where it appears that there is a loan of money by the grantee to the grantor, whether evidenced by the grantor's notes or by other express obligation, or even without any personal obligation of payment on the part of the grantor, and the purpose of the transaction embodied in the deed and boud or agreement for reconveyance is the repayment of a sum loaned, with or without interest. Belote v. Morrison, 8 Minn. 87 (Gil. 62); Hill v. Edwards, 11 Minn. 22 (Gil, 5); Holton v. Meighen, 15 Minn. 69 (Gil. 50); Fisk v. Stewart, 24 Minn. 97; Benton v. Nicoll, id. 221. And see Flagg v. Mann, 14 Pick. 467; Alstin v. Cundiff, 52 Tex. 453. So also if the deed was given for purposes of indemnity. Archambau v. Green, 21 Minn. 520. In such cases the boud or agreement for reconveyance is considered a defeasance, so that the transaction is a mortgage, within the definition given by Chief Justice Shaw in Bayley v. Bailey, 5 Gray, 505, as a "conveyance of real estate, or some interest therein, defeasible upon the payment of money or the performance of some other condition." In considering whether a transaction by absolute deed, and simultaneous bond or agreement for reconveyauce, is a mortgage or a conditional sale, the importaut question is, what was the intention of the parties? Did they intend security or sale? This intention is to be ascertained by looking at the written memorials of the transaction, and its attendant facts and circumstances. Cornell v. Hali, 22 Mich. 377; Aistin v. Cudliff, supra; Smith v. Crosby, 47 Wis. 160; S. C., 2 N. W. Rep. 104; Henley v. Hotaling, 41 Cal. 22; Edrington v. Harper, 3 J. J. Marsh. 353; Hill v. Edwards, supra; Holton v. Meighen, supra. (2) There are authorities holding that impeaching witnesses must speak from their knowledge of the reputation, at the time of the trial, of the witnesses sought to be impeached. Chance v. Indianapolis, etc., Co., 32 Ind. 472; Rawles v. State, 56 id. 433; Mitchell v. Com., 78 Ky. 219. But the better doctrine, and that supported by the weight of authority, and in our opinion by considerations of practical good sense, is that there is no inflexible rule confining the reputation (for truth and veracity) which may properly be given in evidence to impeach a witness, to his reputation at or very near the time of the trial at TRUST-COURT WILL FOLLOW FUNDS.-On October 26, 1881, one Baldwin, who was one of the executors and the general financial manager and custodian of the securities of an estate, and also the cashier of a National bank, purchased four bills of exchange for $6,535 each, dated October 16, 19 21 and 24, 1881, payable in six months, which had been accepted by the drawees, and were made payable to the drawers and indorsed by them. Baldwin, to pay for the bills, drew from the bank on his check as executor $25,000 from the deposit of the credit of the estate, and placed in the box containing the papers of the estate, usually kept in the cashier's desk in the bank, the four drafts, with this memorandum attached: "Est. W. James, loan $25,000, October 26, 1881. C. Nugent & Co." The proceeds of the drafts were applied to the drawer's indebtedness to the bank. The bank failed on October 31, 1881, and the defendant was appointed receiver on November 2, 1881. He gave to the executors the box and all its contents, except the four drafts, which he kept, claiming that they were the assets of the bank. He refused to deliver them on demand, and collected them at maturity, but kept the proceeds separate. Held, that Baldwin, in the purchase of the drafts, acted as the agent of the drawers and as executor and not as cashier, and though the drafts were paid for by law with funds which the estate had on deposit' in the bank, and though Baldwin knew at the time that the bank was insolvent, yet the transaction being a bona fide purchase, and not a plan to secure preference of the estate over other depositors, the transaction was not in violation of section 5242 of the Revised Statutes of the United States, which forbids the transfer of any bills of exchange, etc., owing to any National bank * * * * after the commission of any act of insolvency, or in contemplation thereof; and further, that this court has jurisdiction to follow the proceeds of the drafts as trust property so long as they are identifiable, and to decree their payment to the estate. Tuttle v. Frelinghuysen. Opinion by Runyon, Chancellor. --- A MORTGAGE-PURCHASE-MONEY-SECOND LIEN. purchase-money mortgage may be made a second lien by an agreement made after the sale between the vendor and another mortgagee of the premises, where the *Appearing in 58 N. J. Eq. Reports. agreement has been consummated by recording the other mortgage before the vendor's, and by the vendor's knowingly acquiescing therein for several years. Mutual Loan, Savings and Building Association v. Elwell. Opinion by Runyon, Chancellor. WILL-LEGACIES ADEMPTION.- A testator by his will made in 1863 gave to his wife for life the use of his homestead farm, together with the furniture, etc., excepting the house then occupied by his son Abraham, with certain appurtenances. He gave to his son David the land whereon David then lived, and for which he had given David a deed in 1858, and also $800 which he had given David in 1863 as David's full share. He gave his daughter Dorothy for life, after his wife's death, if Dorothy should survive his wife, the use of the house, garden, etc., and also $3,000, to be invested by his executors, the interest to be paid to her annually, and if insufficient for her support then a specified part of the principal yearly, and if Dorothy should die "without heirs," her share was to be equally divided between David and Abraham. He then gave Abraham his homestead farm after the death of his (testator's wife, excepting Dorothy's right therein. He also gave to his three grandchildren $1,000 each when they should arrive at the age of twenty-five years. Testator died in 1881, and his wife predeceased him. He had no real estate other than that devised, and his personal estate is not sufficient to pay the debts and legacies. Held, that the legacies are not charged on the land, and must abate proportionally, and that testator did not die intestate as to the amount of the legacy given to one of the grandchildren, which was adeemed during testator's life-time. Brands v. Hartung. Opinion by Runyon, Chancellor. BANK-RECEIVER-SET-OFF BY DEPOSITOR.-The capital stock of the bank is the trust fund for the security and payment of the creditors, and it is the duty and legal obligation of the stockholders to pay it in according to their agreement, in order that it may be applied to the payment of the debts. A stockholder is not relieved from that duty and obligation by the fact that he is a creditor. To permit him to set-off the debt due him would, where the corporation is insolvent, manifestly give him a preference as a creditor. To this he is not entitled. It is the right of the other creditors to have him pay in the money due from him for stock as part of the fund for the payment of the debts. The principle has frequently been enunciated, and is established. Stockton v. Mechanics and Lab. Sav. Bank, 5 Stew. Eq. 163; Vanatta v. N. J. Mut. L. Ins. Co., 4 id. 15; Sawyer v. Hoag, 17 Wall. 610; Lawrence, Receiver, v. Nelson, 21 N. Y. 158; Wood v. Dummer, 3 Mason, 308; Hillier v. Allegheny Ins. Co., 3 Penn. St. 470; Grissell's case, L. R. (1 Ch. App.) 528; Black & Co.'s case, L. R. (8 Ch. App.) 254. Williams v. Traphagen. Opinion by Runyon, Chaucellor. WILL-" DIE LEAVING LAWFUL ISSUE"-CONSTRUCTION. A testator gave his residuary estate to his four children, George, Mary, Henry and Charles, to be equally divided among them, and “in case of the death of any one or more of my children without leaving lawful issue, it is my will, and I direct that the share or shares of the one or more so dying shall go to the survivor or survivors of my children; but if any of my children shall die leaving lawful issue living, such issue to take the share his, her or their parent would have taken, share and share alike." The will was dated May 10, 1869, and testator died February 11, 1870. At his death he had the four children mentioned, and they are still living. George and Henry have children; Mary and Charles are unmarried. Held, that the intention of the testator was to give each of his children an absolute estate in the residue, subject only to be de feated by the death of the child in testator's life-time. In Clayton v. Lowe, 5 B. & Ald. 636, a testator, after bequeathing a specific legacy, devised all and every other part of his real and personal estate to be equally divided between his three grandchildren, share and share alike, forever, and provided that if either of them should happen to die without child or children lawfully begotten, then such part or share of the one so dying should be equally divided among the survivors; but if any of them should die and leave child or children lawfully begotten, such child or children should have their parent's share equally divided amongst them, share and share alike. It was held that under that devise the grandchildren took an estate in fee simple as tenants in common. In Gee v. Corporation of Manchester, 17 Ad. & E. (N. S.) 737, where a testator devised and bequeathed his real and personal estate to be divided equally amongst his children in manner following, viz.: "I will and bequeath to my eldest son A. one-seventh share of my property to A.'s heirs, executors and administrators." And in like terms he gave a like share to each of his six other children, and added: "And in case any of my sons or daughters die without issue that their share returns to my sons and daughters equally amongst them; and in case any of my sons and daughters die and leaving issue, that they take their deceased parent's share, share and share alike." All the children survived the testator. It was held that the word "die" in the provision just quoted must be construed to mean death in the testator's life time, and consequently that each of the testator's chil dren took a fee simple in one-seventh of the real estate, and an absolute interest in oue-seventh of the personal. So too in Lifford v. Sparrow, 13 East, 359; Edwards v. Edwards, 15 Beav. 357; Slaney v. Slaney, 33 id. 631; Home v. Pillaus, 2 Myl. & K. 15; Da Costa v. Keir, 3 Russ. 360; and Ware v. Watson, 7 De G. M. & G. 248; and in this State in Pennington v. Van Houten, 4 Halst. Ch. 272; S. C., on appeal, id. 745; Williamson v. Chamberlain, 2 Stockt. 373; Wurts v. Page, 4 C. E. Gr. 365; and Baldwin v. Taylor, 10 Stew. Eq. 78. In the last named case the provision was as follows: "In relation to the several gifts and devises to my children in this, my last will and testament, it is leaving heirs their portion shall go to such heirs; if my will, and I do direct that if any of them shall die not it shall be divided equally among my surviving children." It was held that the contingency of death was that of death before vesting. Barrell v. Barrell. Opinion by Runyon, Chancellor. MICHIGAN SUPREME COURT ABSTRACT. MASTER AND SERVANT-SCOPE OF EMPLOYMENTPARTNERSHIP-DAMAGES-DOCTOR S BILL.- (1) In an action against a master for an injury done by his ser vant while driving a wagon,evidence that the master's name was upon the wagon used at the time of the accident is admissible to show the relationship of master and servant. (2) Evidence of the continued and notorious habits of a servant in doing his master's business tends to show the master's knowledge of the acts and permission to do them, and is competent to show that the servant was acting within the scope of his employment. (3) Matters of belief are admissible in evidence to show the existence of a partnership, that question being material. (4) A married woman may recover the amount of a doctor's bill and the expenses of her sickness in an action against a master for an injury done by his servant. Schulte v. Holliday. Opinion by Sherwood, J. [Decided June 11, 1884.] NEGLIGENCE-SEARCHER OF TITLE-PLEADING-ALLEGATIONS OF NEGLIGENCE AND FRAUD.-If one enters into a contract with another to examine the records to see if title to certain property is free and unincumbered, the law presumes an undertaking on his part that he possesses the requisite knowledge and skill, and that he will use due and ordinary care in the performance of his duty, and if he fail so to do, and such failure result in damages to the plaintiff, she is entitled to recover. Chase v. Heaney, 70 Ill. 268; Clark v. Marshall, 34 Mo. 429; Bank v. Ward, 100 U. S. 195; Shear. & R. Neg., § 288; Warvelle, Abst. 7. The use in the complaint of words imputing fraud, in connection with others imputing negligence, the latter being the gravamen of the complaint, does not make it essential for the plaintiff to prove fraud in order to recover. In arriving at what the grievance complained of is, and the manner in which the wrong was inflicted, the whole count must be taken and construed together. The facts and circumstances alleged show that there was no intent to do a wrongful act, or to omit the performance of a duty, but the absence of the proper attention, care or skill. It alleges strictly non-feasance and not a misfeasance, which marks the distinction between negligence and fraud. Gardner v. Heartt, 3 Den. 232, 236. Smith v. Holmes. Opinion by Champlin, J. [Decided June 11, 1884.] REPLEVIN-WHEN DEMAND NECESSARY.-The removal into shelter of an article apparently abandoned to the weather, the custody of it for some months, and then the loan of it to another party, does not establish in the party last named such a wrongful possession as entitles the rightful owner to sue in replevin without first making demand. Becker v. Vanderkook. Opinion by Campbell, J. [Decided June 11, 1884.] PENNSYLVANIA SUPREME COURT ABSTRACT. MASTER AND SERVANT-RISKS-DUTY OF MASTERNEGLIGENCE. (1) A servant, who voluntarily accepts a dangerous employment, assumes all the patent risks incident thereto, and his master is not liable for damages in case of an accident, occurring from such risk,in the course of such dangerous employment. (2) It is not negligence in a master to fail to provide against a patent risk unless he has been requested to do so by his servant, or has induced his servant to believe that he would do so. (3) Unless there is evidence of a request by a servant to provide against a patent risk, the jury cannot consider the question whether it was the duty of his master to remedy it or not. (4) A master is not liable for injuries to his servants, if they have been guilty of contributory negligence. Marsden v. Haigh. Opinion per Curiam. [Decided Feb. 25, 1884.] ADVERSE POSSESSION-PAYMENT OF TAXES-STATUTE OF FRAUDS-PAROL CONTRACT AS TO LAND. An entry upon land is not adverse which is made under a license to lay water pipes to springs thereon, and to change the effect of this entry and make the holding adverse it is not enough to drive stakes around the springs to keep cattle off, but the tenant must keep up the fences and prevent the land from being turned into common. Stephens v. Leach, 7 Har. 262. Payment of taxes assessed upon real estate without the requisite possession cannot make title under the statute. Sorber v. Willing, 10 Watts, 141. Where title is claimed under a parol contract of sale, the evidence of such contract, and of perform ance thereunder, must be definite and unequivocal, in order to take the case out of the statute of frauds. Wood v. Farmare, 10 Watts, 195; Christy v. Barnhart, 2 Har. 260; Brawdy v. Brawdy, 7 Barr. 157; see also Moore v. Small, 7 Har. 461; Postlethwait v. Frease, 7 Cas. 472. Lund v. Brown. Opinion by Gordon, J. WILL-CAPACITY-UNDUE INFLUENCE-CONFIDENTIAL ADVISER — TESTATRIX'S DECLARATIONS. — - The fact that a testatrix, a married woman, at and immediately before the signing of her will (which had been previously written), was in a state of intense nervous excitement and apprehension of death, caused by her being about to submit to a dangerous surgical operation, and aggravated by a quarrel with a member of her family, is not sufficient to warrant the court in awarding an issue devisavit vel non, ou the allegations of testamentary incapacity, and that the testatrix was unduly influenced by prejudice and passion; especially where, as in this case, the testatrix recovered from the surgical operation and afterward made no change in her will. The fact that by said will the testatrix's confidential legal adviser, who wrote it, was made one of the executors thereof (but not a devisee or legatee thereunder), is not sufficient, under the above stated circumstances, and upon his propounding the will for probate after retaining it for four years after the testatrix's death, to cast upon him the burden of proving testamentary capacity and the absence of undue influence. Boyd v. Boyd, 16 P. F. Smith, 283; Cuthbertson's Appeal, 1 Out. 163; Wilson's Appeal, 3 id. 545, distinguished. The seventh section of the act of April 11, 1848, requiring that a will by a married woman shall "be executed in the presence of two witnesses, neither of whom shall be her husband," must be read in connection with the general act of 1833. The word "executed," in the act of 1848, refers to the formality of making a will required by the act of 1833, with the additional requisite that it shall be done in the presence of the two witnesses. Hence all that is necessary to the execution of a valid married woman's will is that two witnesses, neither of whom shall be her husband, shall be present when the testamentary paper is signed by her, and either see her sign it, or receive the acknowledgment of the genuineness of her signature thereto. It is not necessary that the subscribing witnesses should be able to testify affirmatively that the testatrix knew that the instrument which she signed was her will, or that she formally published or declared it to be her will in any other way than by signing it, and requesting them to attest her signature. Lenton's Appeal. Opinion by Sterrett, J. [Decided Jan. 7, 1884.1 PARTNERSHIP-WHEN PROPERTY OF IS PERSONAL ESTATE-STIPULATIONS AS TO DISSOLUTION.— The current profits of a partnership business are personal property and descend as such, whether the property of the firm be real or personal. During the continuance of a partnership agreement all the property of the firm, including real estate acquired with partnership funds and used for partnership purposes, must be regarded as personal estate. Stipulations in articles of copartnership for the continuance of the partnership after the death of a member are valid and binding, and prevent a dissolution. Under such stipulations, the interest of a deceased partner, and the profits arising therefrom, are personal property, and descend as such under the intestate laws. The decision in Foster's Appeal, 24 P. F. Smith, 391, much relied upon for the appellants, is predicated of a dissolved firm with all its debts paid and a residuum of unconverted land remaining in specie for mere purposes of distribution. But there are no such facts here. It cannot now be |