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Dill. 340; Good v. Norley, 28 Iowa, 188. This case was overruled in Boyles v. Boyles, 37 id. 592; but in our view the opinion in 28 id. is the better law. Holmes v. Beal, 9 Cush. 223; Norton v. Norton, 5 id. 524; Arnold v. Sabin, 1 id. 525; Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 id. 506. Seward v. Didier. Opinion by Maxwell, J.

[Decided May 27, 1884.]

LIMITATIONS-PROMISE TO PAY REVIVES - RIGHT TO OPEN AND CLOSE.-(1) A writing signed by the party as follows: "I am sorry that you have had to pay the notes of Frank Pillond and myself, upon which you were surety for us. I cannot at this time pay you the money, but propose to pay you. my share, which I am told is about $413. I hope to be able to pay you soon, but will let you know in a few days what I can do," held to take the debt out of the statute of limitations. (2) A partial payment, acknowledgment of the debt, or promise to pay, made after the debt is barred, will revive it. (3) A defendant is not entitled to the opening and closing on a trial, unless he by his answer, admits the allegations of the plaintiff's petition, and relies entirely upon an affirmative defense. Rolfe v. Pillond. Opinion by Reese, J. [(1) See 35 Am. Rep. 576; 30 Eng. Rep. 207. (2) 22 Eng. Rep. 739.-ED.] [Decided May 28, 1884.]


JOINT-STOCK COMPANY TOWN LOTS-DEED.-Certain owners in severalty of a tract of land laid the same off into a town-site, and organized a company to sell the lots. There was no conveyance to the company of the interests of the several owners of the land, but each shareholder received his quota of stock, and the articles of the association provided that deeds for lots sold were to be executed by the president and secretary. Held (1) to be a jointstock company; (2) that as each partner had authorized a conveyance by the president and secretary, his title passed by such deed. In Fereday v. Wightwick, 1 Russ. & M. 45, it is said that all property acquired for the purpose of a trading concern, whether of a personal or real nature, is to be considered as partnership property, and is to be applied accordingly ín satisfaction of the demands of the partnership. Fall River, etc., Co. v. Borden, 10 Cush. 458. But it is said that there has been no conveyance of the legal title by the individual members of this company; hence they still hold the legal title to said lots. Real property acquired with partnership funds for partnership purposes is regarded in equity as personal estate, so far as the adjustment of partnership rights and payment of partnership debts are concerned. In the view of a court of equity it is immaterial in whose name the legal title to such property may be taken, whether in the name of one or all the partners, as the person holding the legal title does so for copartnership purposes. Dupuy v Leavenworth, 17 Cal. 263: Buckley v. Buckley, 11 Barb. 45; Kendall v. Rider, 35 id. 100. In Fowler v. Bailey, 14 Wis. 140, it is said: "It is a familiar principle of the law of partnership that when partners intend to give real estate the character of partnership property, and when they use it and treat it as such, then it will like all other assets of the firm be applied to the payment of the partnership debts, notwithstanding the paper title may happen to be in one partner, or appear to be in all as tenants iu common." Fairchild v. Fairchild, 64 N. Y. 471. But while real estate purchased with partnership funds and held as partnership property will be listed as personal property, yet ordinarily in the absence of express authority, one partner cannot convey the whole title to real estate unless the entire title is vested in him. Chester v. Dickerson, 54 N. Y. 1; Van Brunt v. Applegate, 44 id. 544. But an absent partner may be bound by a deed executed by a copartner in the firm

name, if there was either a previous parol authority or a subsequent parol adoption of the act. 3 Kent Com. 48; Skinner v. Dayton, 19 Johns. 513; Cady v. Shepherd, 11 Pick. 405, 406; Bond v. Aitkin, 6 Watts & S. 165. And a deed executed by a partner in the firm name is effectual to convey all his interest. Clement v. Brush, 3 Johns. Cas. 180; McBride v. Hagan, 1 Wend. 326; Nunnely v. Doherty, 1 Yerg. 26; Waugh v. Carriger, id. 31; Morris v. Spence, 4 Harr. (Del.) 428; Jackson v. Stanford, 19 Ga. 15. Therefore had each partner executed deeds in the firm name, without authority from his copartners, to purchasers of lots, the purchasers would have acquired the title of all the partners. The same result would follow from the express authority from such partner, conferred upon the president and secretary, to execute deeds in the name of the copartnership. That this authority was given, not only in the articles of association, but by a separate irrevocable power of attorney by each stockholder and wife, is clearly established. Batty v. Adams Co. Opinion by Maxwell, J. [Decided May 29, 1884.]


ECCLESIASTICAL LAW-DECISIONS OF CHURCH CONCLUSIVE--LIBEL--CONSTITUTIONAL LAW--PUBLICATION OF LIBEL.-(1) It is the established doctrine that in matters purely ecclesiastical, not affecting property rights, the decisions of the proper church judicatories made in good faith are conclusive upon civil tribunals. The provision of the Constitution (§ 10, art. 11) that the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, in no manner alters this rule. It means only that for such wrongs as are recognized by the law of the land the courts shall be open and afford a remedy. Harmon v. Dreher, 1 Speers Eq. 87; Robert

son v. Bullions, 9 Barb. 134; Shannon v. Frost, 3 B. Penn. St. 282; State ex rel. v. Farris, 45 Mo. 183; WatMonr. 261; German Reformed Church v. Seibert, 3 son v. Garvin, 54 id. 364. (2) The plaintiff, a member of the Presbyterian Church, was tried by a session of the church in his absence, and without notice to him, upon a charge preferred by the pastor, who was a member of the session, that plaintiff had made false and defamatory statements concerning the pastor, and he was excommunicated by resolution of the session. Held, that unless the charge was false, and the members of the session maliciously, falsely or colorably made the proceedings against plaintiff a pretense for covering an intended scandal, they had not laid themselves open to action for libel. Farnsworth v. Storrs, 5 Cush. 412; Streety v. Wood, 15 Barb. 105; Shurtleff v. Stevens, 51 Vt. 514; S. C., 31 Am. Rep. 698. And the burden of proving express malice is upon the plaintiff. Shurtleff v. Stevens, supra; Town. Sland. 386; 2 Add. Torts, 931; Bradley v. Heath, 12 Pick. 163; Van Wyck v. Aspinwall, 17 N. Y. 190; Lewis v. Chapman, 16 id. 369; Vanderzee v. McGregor, 12 Wend. 545; Klink v. Colby, 46 N. Y. 427; S. C., 7 Am. Rep. 360. (3) The clerk of the session entered the resolution of excommunication and a preamble accompanying it upon the minute book of the session, exhibited them to members of the session for their signature, and sent plaintiff a written copy, and the pastor read both preamble and resolution to the congregation in church. Held, that these acts did not of themselves amount to a publication of a libel, or furnish a foundation for an action against either clerk or pastor. Landis v. Campbell. Opinion by Henry, J. ([1] See Isham v. Fullager, 14 Abb. N. C. 363.-ED.)

*To appear in 70 Missouri Reports.

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CONVERSION-INSTRUCTIONS--EXCEPTION TO CHARGE. -The auditor's reports find that the defendant converted to his own use the chattels specified in the dec


CARRIER - RESTRICTING LIABILITY PROVIDING TRANSPORTATION.-(1) A contract by which a common carrier undertakes to relieve himself of all liability for damages occasioned by any delay in transportation and to impose them upon the shipper, will be effectual to protect the carrier only against the consequences of delays not caused by his own negligence.laration, and that he "owes the plaintiff upon the va Harvey v. Railroad Co., 74 Mo. 541; Sturgeon v. Railroad Co., 65 id. 569; Rice v. Railroad Co., 63 id. 314; St. Louis, K. C. & N. Ry. Co. v. Cleary, 77 id. 634. It is the duty of a common carrier to provide sufficient facilities and means of transportatiou for all freight which it should reasonably expect will be offered, but it is not bound to provide in advance for extraordinary occasions, nor for an unusual influx of business which is not reasonably to be expected. (3) If he receive property for transportation without any agreement to the contrary, he thereby undertakes to carry and deliver it within a reasonable time, regardless of any extraordinary or unexpected pressure of business upon him. Dawson v. Chicago & Alton R. Co. Opinion by Hough, C. J.

rious items of account the sum of money respectively spect of each. These words plainly import that the opposite each item," setting forth a sum certain in regoods belonged to the plaintiff; and the objection that the auditor does not find that fact in terms, and that his phraseology is inapt, is too refined, even if it were open here upon exceptions to the refusal to recommit or to the admission of the reports in evidence. Butterworth v. Western Assur. Co., 132 Mass. 489. Or to the refusal to rule upon the sufficiency of the plaintiff's evidence to maintain the action, or to direct a verdict before the whole testimony was closed on both sides. Wetherbee v. Potter, 99 Mass. 354; Kingsford v. Hood, 105 id. 495. At the close of the argument for the defendant his counsel presented twenty-three requests for instructions, but the court declined to rule upon them on the ground that they were not seasonably presented, at the same time saying, that at the close of the charge, the counsel could ask for such further instructions and except to such parts of the charge as he saw fit. At the end of the charge the court reported that if there were matters which counsel conceived had been omitted, they might call attention to them. This course was exactly in accordance with the decision in Ela v. Cockshott, 119 Mass. 416, 418, as generally understood and acted upon. We do not see sufficient reason for disturbing the now settled practice which leaves it within the discretion of the court, when a multitude of requests are presented after the arguments have begun, to throw the burden on counsel of calling attention to points not dealt with, at the end of the charge, with the right of course to except to such portions of the charge as they deem erroneous. The defendant's general exception to the charge, without pointing out particulars, was bad. Curry v. Porter, 125 Mass. 94. McMahon v. O'Connor. Opinion by Holmes, J.

[Decided May, 1884.]

MUNICIPAL CORPORATION-NUISANCE· -POWER TO ABATE.-Power conferred upon a municipal corporation to abate nuisances is conferred for the public good, and not for any private corporate advantage, and for the failure of its officers to properly exercise the power the municipality is not liable. Citing Murtaugh v. St. Louis, 44 Mo. 479. Armstrong v. City of Brunswick. Opinion by Norton, J.

CONTRACT-PARENT AND CHILD SERVICES RENDERED-PROVISION IN WILL.-(1) Valuable services which would as between strangers raise an implied promise to pay for them, when performed for a person in loco parentis will not of themselves have that effect; and this whether they are performed wholly during minority or partly after majority. Guenther v. Birkicht, 22 Mo. 439; Hart v. Hart, 41 id. 431; Smith v. Myers, 19 id. 443. (2) In an action against the estate of a deceased person for services performed for him during his life-time, held, that his will making provision for the plaintiff was properly admitted in evidence as corroborative of the claim made in defense that the position of plaintiff was that of a member of the family of the deceased, and as bearing upon the supposed undertaking to pay wages for his services. Cowell v. Roberts. Opinion by Martin, Comr.


Davis v. Taul, 6 Dana, 51;
Ohio, 288. Huntress v. Place.
[Decided June, 1884.]

WILL-GIFT-PER CAPITA.-In this case the words of the will are: "The residue and remainder of the property left by my said wife shall be equally divided among my brothers and sisters and their heirs, after having paid the two last named legacies." The argument of the appellant is that this is a gift to a class; that only those of the class take who survive the testator; and that the words "and their heirs" are words of limitation, and were used to express the intention of the testator to give the absolute property. The argument of the appellees is, that by the use of the plural word "sisters" the testator must have intended not only his sister who was living, but his sisters who had deceased; and as these last could not take, the testator intended that their heirs should take the shares appropriate to them in the division. This question is one of difficulty, but we are inclined to the view of the appellees, for the reasons given in Gowling v. Thompson, L. R., 11 Eq. 336. See also Barnaby v. Tassell, id. 363; In re Sibley's Trust, 5 Ch. D. 494; 22 Eng. R. 246; Widgen v. Mello, 23 Ch. D. 737 ;

Richey v. Johnson, 30
Opinion by Field, J.

WILL-MARRIED WOMAN-REVOCATION-SUBSEQUENT MARRIAGE.-It has been settled at common law that the marriage of a femme sole revokes her will. In case of a man it is equally well settled that marriage alone does not revoke his will, but that marriage and the birth of a child do. 1 Jar. Wills, 122; Warner v. Beach, 4 Gray, 162. If we were under no restraint, we might well hesitate to hold that since testamentary capacity has been given to women, her will made when sole should be revoked only by marriage and the birth of a child, as in case of a man, for the sake of uniformity only, when we are inclined to think a better rule would be that in case of a man his will should be revoked by marriage alone. But such a rule can only be introduced by the Legislature. In England, by 1 Vic., ch. 26, § 18, and in many of the States in this country, it has been provided by statute that the wills of both men and women shall be revoked by marriage. See collection of statutes in 1 Jar. Wills, 122, notes to Bigelow's ed. But we are of opinion that the question now before us has been so far settled by statute as not to admit of change by construction. R. S., ch. 127, § 8, after providing that no will shall be revoked unless by burning, tearing, etc., or some other writing executed in the manner required in the case of a will, goes on as follows: "But nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." It is not apparent that an entire revo

cation by implication of law results from any change of condition or circumstances except that of a subsequent marriage. See discussion in Warner v. Beach, 4 Gray, 162. This clause as to implied revocations was first introduced in the Revised Statutes, ch. 62, § 9. The other provisions as to revocation were substantially taken from section 2 of chapter 24, of the acts of 1783. The commissioners in their note to this section say: "The clause as to implied revocation recognizes and adopts the existing law as established and understood among us." And their further discussion of this subject shows clearly that they had in mind the rule of the common law, that in case of a man, marriage and the birth of a child, and in the case of a woman, marriage alone, revoked a will previously made. We are of opinion that this provision, as to implied revocations, from its language and the reasons given for its introduction, has substantially the force of an express enactment of the rules of the common law, which we are not at liberty to change, even if the reason for the rule, in case of a woman, no longer exists. This was the view taken in Brown v. Clark, 77 N. Y. 369, upon a similar question under a statute of New York. We are therefore of opinion that the will of Susan E. Hammond was not properly admitted to probate. Swan v. Hammond. Opinion by Colburn, J. [Decided Oct. 24, 1884.]

CORPORATION-BENEVOLENT-SUSPENSION OF MEMBER-NOTICE.-The plaintiff objects that the notice of his suspension was invalid, because it contained only a printed fac simile of the seal of the lodge, and the constitution of the defendant required that it be under the seal of the lodge. The provisions of the constitution are not fully set out, and we are therefore unable to determine whether, by the constitution, the presence of the seal is made any thing more than a matter of form, or whether a printed fac simile of the

seal is not what was intended. There is no evidence that Karcher was misled by the notice, or that it was not in all respects as effectual in giving him information as if it had contained an actual impression of the seal of the lodge. So far as appears, this defect in the notice, if it was a defect, was immaterial. As the constitution and by-laws of the defendant, or of the Golden Rule Lodge, are not fully set out, we cannot construe them, but it appears that Karcher was a member of that lodge, and was "suspended in usual form;" and it must be assumed that this was done according to the rules of the lodge, and that as a member he was subject to these rules. The evidence offered amounts to this, that the lodge, in good faith, and in the manner prescribed by its rules, suspended Karcher for a cause which unexplained warranted suspension, but for which his illness was a justification. It was his duty to exhaust the remedies provided by the society of which he was a member, before appealing to the courts. Chamberlain v. Lincoln, 129 Mass. 70. He was suspended by the tribunal which he had chosen to determine the question according to rules to which he assented in becoming a member, and he received notice of the proceedings. The action of this tribunal, according to its rules, ou a question which it had authority to decide, honestly taken, after the requisite notice to him, cannot be collaterally reviewed in this suit, on the ground that facts existed which, if brought to the notice of the tribunal, would have warranted or required a different decision. Grosvenor v. United Society, 118 Mass. 78; Dolan v. Court Good Samaritan, 128 id. 437. Karcher v. Supreme Lodge Knights of Honor. Opinion by Field, J. (See 15 Am. Rep. 24; 67 How. Pr. 38; 27 Eng. R. 595.-ED.) [Decided June, 1884.]


wealth a foreign corporation, unless jurisdiction is given over it by statute, or unless it voluntarily appears, cannot be sued at law except by means of an attachment of its property. Andrews v. Michigan Central Railroad, 99 Mass. 534; National Bank of Commerce v. Huntington, 129 id. 444. The service of process in this suit was not a legal service upon the corporation, as there is no statute authorizing such a service; at the most it was only equivalent to notice of the suit. It seems that the law is otherwise in England and in some other jurisdictions. Newby v. Von Oppen & Colt Manuf. Co., L. R., 7 Q. B. 293; 1 Eng. R. 323; Baltimore & Ohio Railroad v. Wightman, 29 Gratt. 431. A corporation may be decreed specifically to perform a contract. Jones v. Boston Mill Co., 4 Pick. 507. And this court has jurisdiction in equity to compel the assignment of letters-patent. Binney v. Annan, 107 Mass. 94. It does not appear that the personal chattels cannot be replevied, and as they are within the Commonwealth, if they are in the possession of any one, they must be in the possession of some person within the Commonwealth, who could be served with process and compelled to deliver up the chattels if the plaintiffs are entitled to the possession of them. No such person has been made a party defendant. So far as the bill asks for an assignment of letters-patent it asks for a personal decree against the defendant. Whatever may be the extent of the jurisdiction of the court over all property and all persons within the Commonwealth, it has never been held to extend to a foreign corporation, not made by statute amenable to process, for the purpose of compelling it specifically to perform a contract by executing a written assignment of letters-patent, unless the corporation voluntarily submits itself to the jurisdiction. The rights conferred by letters-patent have no special locality within the Commonwealth; they exist as well in Maine, where the corporation was created, as in Massachusetts. Carver v. Peck, 131 Mass. 291. We think this case is not within the purview of the Public Statutes, ch. 141, § 22; and that the bill must be dismissed. Spurr v. Scoville. 3 Cush. 578: Moody v. Gay, 15 Gray, 457; Felch v. Hooper, 119 Mass. 52; Walling v. Beers, 120 id. 548; Kansas Construction Co. v. Topeka Railroad, 135 id. 34. Desper v. Cont. Water Meter Co. Opinion by Field, J. (See 15 Eng. R. 270.) [Decided June, 1884.]


SURETY-ENTITLED TO INDEMNITY-SUIT TO COMPEL PRINCIPAL TO PAY.-As a general rule, all that the surety is entitled to against the principal debtor is indemnity; in other words, to be made whole. If he pays less than the full amount due, or in depreciated currency, all he can recover is what he paid, or the value of what he gave in satisfaction. He has a right to be reimbursed, but to nothing more. Burge Sur. 359; 2 Dan. Neg. Inst., § 1342; Snyder v. Blair, 6 Stew. Eq. 208. In Fowler v. Strickland, 107 Mass. 552, it was held that an accommodation indorser has the same right to purchase paper on which he is liable that any other person has, and that in case he become the purchaser of such paper, he is entitled to recover the full amount due without regard to what he paid for it. The surety being entitled to nothing but indemnity, it follows necessarily from this limitation of his right that until he has paid something for his principal debtor he has no right to demand any thing of him except that he pay his debt to their common creditor. This right he may enforce in equity. After the debt

*Appearing in 38 N. J. Eq. Reports.

for which he is liable becomes due, and after his principal has made default, the surety may maintain a suit in equity to compel his principal to pay his debt. Irick v. Black, 2 C. E. Gr. 189; King v. Baldwin, 2 Johns. Ch. 554. Equity gives this remedy to the surety, because, as was said by Lord Keeper North, it is unreasonable that a man should always have such a cloud hang over him. Ranelaugh v. Hayes, 1 Vern. 189. But this is his only remedy. Until he pays something his principal is under no liability to him, and owes him no duty except to pay his debt to their common creditor. Delaware, etc., R. Co. v. Oxford Iron Co. Opinion by Van Fleet, Vice-Chancellor.

INSURANCE-ASSESSMENTS-BY-LAWS-REINSTATING MEMBER. The by-laws of an unincorporated mutual insurance association provided that in case a member had, for failure to pay an assessment promptly, been dropped from the association by the secretary, the board of directors should have power to reinstate him on his presenting to them a reasonable excuse for such failure, and paying the sum in arrear. A member being delinquent, appeared before them and offered a sufficient reason for his delinquency, and the board refused to reinstate him, because they alleged that his health was then precarious. He died very soon afterward. Held, that this court might, after his death, examine into and determine the adequacy of the reason so offered, and in a proper case compel the association to pay the amount of insurance to which the delinquent's widow is entitled. Van Houten v. Pine. Opinion by Runyon, Chancellor.

WILL-POWER OF SALE-EQUITABLE CONVERSION.A testator by his will provided as follows: "On the death of my said wife I do give, devise and bequeath all my estate, both real and personal, to my executors hereinafter named, in trust, nevertheless, for the following use and purpose, that is, in trust for my children, to be divided among them, share and share alike, as follows: To my sons I direct my said executors to pay their respective shares as they arrive at the age of twenty-one years; the respective shares of my daughters I do order and direct my said executors to hold in trust to pay to them, respectively, the income arising from their respective shares, in halfyearly payments during their natural lives, free from the control of any person or persons whatsoever, and to their own and sole use; and on the death of either of my said daughters, to pay the share of such deceased daughter to her heirs at law." Held, that it was quite clear that the testator intended that the land should be converted into money. The fee is given to the executors. The real and personal estate are blended together in the disposition of them, and the executors are to divide them among the children - to pay the sons their shares and the daughters the income of theirs for life. The direction to pay the sons' shares implies a direction to convert, and so of the direction to pay the income of the daughters' shares; it implies a direction to invest, which involves the necessity of converting the land. The following cases are in point: Van Ness v. Jacobus, 2 C. E. Gr. 153; Wurts v. Page, 4 id. 365; Haggerty v. Lanterman, 3 Stew. Eq. 37; Zabriskie v. M. & E. R. Co., 6 id. 22. The executors undoubtedly have the power to sell. Belcher v. Belcher. Opinion by Runyon, Chancellor.


April 21, 1879, a husband so grossly abused his wife that she went to her parents' home. The next day he followed her there, and calling her out of the house, shot her. He then absconded, but was in the summer of 1879 arrested, tried and convicted, and sentenced to imprisonment in the State prison forifive years, where he was accordingly confined. He was released after this suit was begun. Held, that his absence from his wife since

April 22, 1879, was not "willful, continuous and obstinate desertion," so as to entitle her to a divorce. Wolf v. Wolf. Opinion by Runyon, Chancellor.

MARRIAGE-DIVORCE-EVIDENCE OF ACCUSED-SUFFICIENCY OF EVIDENCE.—(1) While the evidence of the accused parties in actions for divorce, grounded on adultery, is, as a general rule, entitled to but little weight, yet in a doubtful case it should be given sufficient weight to defeat a divorce. (2) No general rule defining what circumstances will constitute sufficient evidence of adultery can be laid down which will furnish a safe guide for every case, yet this much may be safely said that the circumstances must be such as will lead the guarded discretion of a reasonable and just mind to a satisfactory conviction that the crime has been committed. Culver v. Culver. Opinion by Van Fleet, Vice-Chancellor.

JUDICIAL SALE-RIGHTS OF PURCHASER-JUDGMENT -COLLATERAL ATTACK.-A court of general jurisdic tion may misconstrue, misapply or plainly disobey the law in pronouncing judgment, yet so long as its judg ment remains unreversed it unalterably binds the parties and pronounces the law which defines and determines their rights in that particular case. A purchaser of land sold pursuant to the decree of a court of gen. eral jurisdiction assumes no responsibility for the correctness of the legal principles on which the decree is founded. All he need do is to see that the court had jurisdiction of the parties and of the subject-matter of the suit, and that the decree pronounced was within the scope of the pleadings. A record showing these facts must be accepted by every domestic tribunal as an indisputable verity. Even a subsequent reversal of the decree will not affect him, for it is a principle of manifest justice, as well as of established law, that rights acquired by a third person in the enforcement of a decree of a court of general jurisdiction, shall endure, though the decree be afterward reversed. Rorer on Jud. Sales, § 431. In such case the injured party must look for redress to the person who got the money for the land, and not to the person who paid his money for the land under the sanction of a judicial sentence. So great is the faith imposed in judicial records that it has been held that a bona fide purchaser at a judicial sale is entitled to hold the land he has purchased and paid for, though the defendant had be fore the sale paid the debt on which the judgment was founded, but left the judgment to stand open and unsatisfied on the records. Nichols v. Dissler, 5 Dutch. 293; S. C., on error, 2 Vroom, 461. But this case presents no question for discussion. The principle which must control its decision is authoritatively settled. Chief Justice Beasley, speaking for the Court of Errors and Appeals, in McCahill v. Equitable Life Assurance Society, 11 C. E. Gr. 531, said: "The decision of a domestic court of general jurisdiction, acting within the scope of its powers, has inherent in it such conclusive force that it cannot be challenged collaterally, and such decision definitely binds all persons embraced in it, unless on objection made to such court itself, or in a direct course of appellate procedure. * * * Such judicial act may be voidable, but it is not void. If even admittedly erroneous, such error cannot be set up against the decree in a collateral proceeding founded upon the decree." The petitioners are not parties to this suit, and they cannot therefore challenge the decree by appeal. If they attack it at all, they must do so collaterally, and this method of attack, it has been settled from the earliest times, is not open to them. It is undoubtedly true as a general rule, that a suitor who seeks relief against an infant defendant must prove his whole case, and that nothing can be taken or admitted against him, either by his default or on the answer of his guardian ad litem.

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Mills v. Dennis, 3 Johns. Ch. 367; Holden v. Hearn, 1 Beav. 445. Shultz v. Sanders. Opinion by Van Fleet, Vice-Chancellor.



ASSIGNMENT-PARTIAL-MUNICIPAL CORPORATION -CLAIMING THROUGH.-A partial assignment of a claim upon a municipal corporation is not binding upon the corporation, and the holder thereof has no claim that he can enforce against the general creditors of the assignor. Such an assignment is only an agreement to pay out of a particular fund. Christmas v. Russell, 14 Wall. 70; Gibson v. Stone, 43 Barb. 285; Rogers v. Hosack, 18 Wend. 319; Trist v. Child, 21 Wall. 447; Jermyn v. Moffitt, 25 P. F. S. 399. In Mandeville v. Welch, 5 Wheat. 277, the rule is thus clearly stated by Mr. Justice Story: "When the order is drawn on a general or a particular fund for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation by an acceptance of the draft." It is useless to multiply authorities. Aside from this it has been repeatedly held that upon the distribution of an assigned estate, a claimant upon the fund must claim by and through the assignment. He cannot claim adversely to it. Okie's Appeal, 9 W. & S. 156; Jefferis' Appeal, 9 Casey, 39; Bush's Appeal, 15 P. F. S. 366; Wylie's Appeal, 11 Norris, 196; Strickler's Appeal, 10 Weekly Notes, 535; Williams Bros.' Appeal, 13 id. 217. In the last case it was said in the opinion of the court: "An auditor appointed to adjust and settle the accounts of a voluntary assignee for creditors is confined to the accounts between the assignee and the cestuis que trust. Third persons claiming adversely cannot interfere in the settlement, but must resort to adversary proceedings." Schroeder's Appeal. Opinion by Paxson, J. [Decided Jan. 7, 1884.1

WILL FAMILY SETTLEMENT COMPROMISE-CONSIDERATION. A testator by his will gave his widow the income of his residuary estate so long as she remained his widow, and in case of her remarriage onehalf of the income during life. At her death or remarriage, he gave his mother the income of the residue for life, and after the death of the wife and mother, he gave the residue to his brothers and sisters. The mother afterward died, and subsequently the widow remarried. For the purpose of avoiding litigation as to the disposition of the onehalf of the residue during the widow's life-time, the brothers and sisters joined with the widow in an agreement that the income from the whole residue should be paid, one-half to the widow, and the other half to the brothers and sisters share and share alike. Subsequently at the audit of the executor's account, upon demand by the brothers and sisters for the pay. ment of the moiety of the residue before the widow's death, held, that the agreement being in settlement of a family dispute, was founded on a consideration favored in law, and was binding upon the parties thereto. The law is thus laid down by Mr. Bispham in his work on Equity at p. 192: "And family compromises, especially if they are made in good faith, and with full disclosure, are favored in equity, and may be sustained by the court, albeit perhaps resting upon grounds which would not have been considered satisfactory if the transaction had occurred between strangers." It was said by Thompson, J., in Walworth v. Abel, 2 P. F. S. 370, that "family arrangements are favorites of the law, and when fairly made, are never allowed to be disturbed by the parties

or any other for them." See also Burkholder's Appeal, decided at the present term, 14 Weekly Notes, 234. We might multiply authorities upon this point, but the law is too well settled to require it. Held, that the moiety of the income from the whole of the residue as provided by the agreement being possibly more to the widow's advantage than the whole income from one half the residue of the estate as set apart, it could not be said that she has no standing to object to a division contrary to the terms of the agreement, and that the estate should therefore be disposed of according to the terms of such agreement. Wilen's Appeal. Opinion by Paxson, J.

[Decided Feb. 4, 1884.]

LIMITATIONS-OPENING JUDGMENT TO LET IN DEFENSE-EVIDENCE-AMENDMENT.--(1) Judgment having been entered upon a judgment note more than ten years after date, without complying with a rule of court requiring a special application to the court, accompanied by an affidavit, for leave to enter judgment in such case, it is within the discretion of the court on application of defendant to permit such judgment to be opened, so that the statute of limitations may be pleaded. There was a time when the statute was regarded with so much disfavor that it was said in Brown v. Sutter, 1 Dall. 239, that the court would never open a regular judgment to let in the plea of the statute of limitations, but as was held by Chief Justice Gibson in the later case of Ekel v. Snevily in 3 W. & S. 272: "As the plea of that statute has since been considered in Shock v. McChesney, 4 Yeates, 507, and The Bank v. Israel, 6 S. & R. 294, to be no longer an unconscionable one, the rule of practice would hardly be held so now." And there seems a propriety in the present case of opening the judgment to let in the plea of the statute, inasmuch as the judgment was entered without leave of court, or the affidavit required thereby, upon a note which upon its face was then barred by the statute. In any event it was a matter in the discretion of the court, and we see no error in opening the judgment. (2) A judgment as above was entered upon a joint and several judgment note against two of the makers, the third being dead. The court, on application of one of the defendants opened the judgment as to all of them, and an issue was made up at bar, the note to stand for the declaration and defendant to plead the statute of limitations. Held, that plaintiff should have been allowed to put the note and record in evidence, in. order to enable him to follow the same up with evidence tolling the statute. (3) The above offer of evidence being refused, plaintiff offered to prove a payment on account by one of the defendants, and also moved to amend the issue at bar so that it should stand as against the defendant alone making such payment. Held, that the amendment should have been permitted. Herman v. Rinker. Opinion by Paxson, J.

[Decided April 14, 1884.]


EVIDENCE AS TO KEEPING WATCHMAN-FIRE FROM ENGINE.-(1) In an action for damages for the loss by fire of the contents of a building, brought by several insurance companies in the name of the insured whom they have.indemnified, evidence is admissible to show that the building, owned by a third party, was insured in one of the said companies, and that the policy of insurance contained a clause requiring the insured to keep a watchman employed, which requirement was not fulfilled. (2) Although ice companies have the right to use shavings in their business, yet if they use them in such a careless manner as to render it possible that they should be set on fire by the engine of a neighboring railroad company, they are guilty of contributory negligence;

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