to become a reputable wife. So, on the night of the 19th of November, 1895, just after a terrific wind storm, and long after the woman Lucy and her children had retired to rest in her lowly home, George Merryweather, on bis knocking at the door is admitted therein. He pro ceeds to load his pistol, having first fired two chambers thereof. During the time he was so employed he kept up a conversation with the woman. Having completed the loading and greasing of his pistol, after some demurring on the part of the woman, he was given permission to spend the night there. With the door wide open, having taken a drink of water, and after having removed his clothing prepatory to seeking rest, and while at the open door, suddenly some one in the dark and outside of the house fires a shot into his body at such a close quarter that his underclothing is set on fire. The deceased cries "Oh!" and staggers off some 30 yards and falls. Upon his call the woman and her oldest child rush to his relief. They find him putting out the fire on his clothing. What was said was this: When she asked him what was the matter, he replied, "I am shot." To her question, "You are not shot, are you?" he replied, "Yes, Charlie, has shot me to death." Calling for and obtaining aid, he is removed to her room, and laid on a pallet in front of the fire, and soon dies. When the woman and her little daughter testify, they fix the time from the firing of the fatal shot and that when they reached the deceased at five or ten minutes. But they also describe minutely the circumstances which intervened the shot and reaching the deceased after he was shot, which necessarily impress the mind with the conclusion that it was a shorter interval of time than five or ten minutes, thus demonstrating that the witnesses use the terms "five or ten minutes" without a due appreciation of time fixed thereby. If the expressions used by the deceased show that he regarded himself as in extremis, as viewing himself as bound to die, then this testimony is entitled to be admitted as a "dying declaration," and if this be so, it was competent. We so regard it. But was it entitled to be considered as res gesta? The judge so held, under the authority of the decision in State v. Belcher, 13 S. C. 459. We know it is dangerous ground that we now travel, but it must be traveled, for the question is fairly presented. Judge McGowan, in the case last cited, in referring to this matter, says: "When the inquiry is as to a certain transaction, not only what was done, but also what was said, by those present during the transaction, is admissible for the purpose of showing its character. Thus, as an illustration, it was held, in the prosecution of Lord George Gordon for high treason, that the cry of the mob which accompanied the prisoner was admissible as a part of the transaction. Rex v. Lord George Gordon, 21 How. State Tr. 534. Declarations which accompany the act characterize it; but to do so the declarations must be by the persons engaged in the act, contemporaneous with it, if not precisely concurrent in point of time, and proved as other facts by witnesses. To make declarations a part of the res gestæ, they must be contemporaneous with the main fact, not, however, precisely concurrent in point of time. If they spring out of the transaction, elucidate it, and are made at a time so near to it as reasonably to preclude the idea of deliberate design, they are then to be regarded as contemporaneous." (Italies used in the last two sentences are ours.) It does seem to us that the judge did not err in holding that the circumstances established by the witnesses as having occurred when the declaration of the deceased was

made showed that the deceased could not have formed a deliberate design to speak falsely, and that such proof of the circumstances of this case clearly brings it within the limits fixed in the case of State v. Belcher, supra. It is the judgment of this court that the judgment of the circuit be affirmed.

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MUNICIPAL CORPORATION TAXATIONAGRICULTURAL LANDS.-In Briggs v. Town of Russellville, 36 S. W. Rep. 558, decided by the Court of Appeals of Kentucky, it was held that agricultural and similar lands brought within the corporate limits of a town by the extension of such limits, and receiving the benefits coincident with municipal government, are subject to taxation for municipal purposes, although not strictly urban property, in that the lands are not divided into blocks and lots. The court said in part:

Numerous cases of a character similar to these cases, and in which the same questions were raised, have been decided by this court, and in no such case has it been held that the general assembly did not have the constitutional power to fix the territorial limits of municipal corporations, either by acts of original incorporation, or by subsequent acts extending their boundary lines. We do not understand counsel here to deny that the general assembly had the constitutional authority to pass the acts of 1869 and 1880 by which the limits of the town of Russellville were extended. Nor do we understand counsel to hold that the municipal power or authority within the limits of the town as defined by those acts is restricted, except in respect of the power to tax the added territory. There were other purposes for which the general assembly had the constitutional power to extend the jurisdiction` of municipal gov ernment over territory contiguous to a town or city. by extending its limits, besides that of taxation. This might be done in any case in anticipation of the future growth of the town or city, for the purposes of police protection, and the like. Such an exercise of legislative power was not violative of the constitutional guaranty of private property to the owners, because the land was still their own, and could not be taken or appropriated for any publie use, such as for streets or alleys, without their consent, or without just compensation therefor. Cheaney v. Hooser, 9 B. Mon. 330; Swift & Co. v. City of Newport, 7 Bush, 37. It will be found on investigation, we think, that in most of the States the courts will not interfere in such cases to relieve property owners from taxation by the mu nicipal authorities, because, municipal government being an important part of the governmental machinery of the State, it is the peculiar province of the legislative department-the law-making power-to define or provide a method of defining the limits of municipal corporation, and to clothe them with the powers of local government, and that the propriety of legislative action in this regard may not be questioned. In this State, however, as well as in several other States, it has long been the established doctrine that the courts will relieve against the burden of munic ipal taxation, following the extension of the boundary lines of a town or city, in cases where "the legiti mate object of improving the town" has been "palpably perverted to the unauthorized purpose only of lessening the burden of taxation of the inhabitants,

who will not be otherwise benefited by the extension." Swift & Co. v. City of Newport, supra. In the case of Trustees of Elkton v. Gill, 94 Ky. 138, 21 S. W. Rep. 579, following Cheaney v. Hooser, supra, and Maltus v. Shields, 2 Metc. (Ky.) 553, the doctrine is stated in the following language: "The protection afforded to, and advantage received by, the citizen from a municipal government are, in the meaning of the constitution, just compensation for taxation imposed in order to maintain it. And local taxation authorized by law cannot be deemed taking private property without just compensation, unless it is palpable that persons or their property are subjected to such burthen for the benefit of others for purposes in, which they have no interest, and to which they are, therefore, not bound to contribute." in that case a parcel of six acres of land, embracing the residence and lawn of the owner, which was within the limits of the town, the land being a part of a tract containing 46 acres, which was used for agricultural purposes, the part including the residence being adjacent to two streets of the town, was held to be subject to taxation by the town. In Maltus v. Shields it was held that a lot of about nine acres in the town of West Covington, upon which the owner resided, and part of which was in cultivation, and part containing evergreens and shrubs and a large number of fruit trees, was constitutionally subject to taxation for municipal purposes. In the case of Sharp's Ex'r v. Dunavan, 17 B. Mon. 223, it was held that, where a town is extended by improvement, so as to give those living adjacent to the town boundary all the advantages which the citizens enjoy from the local government of the town, the legislature had the constitutional power to extend the limits of the town and subject the owners of the property within the extension to taxation for town purposes, and that the legislative discretion in the location of the lines of the extension could not be questioned or controlled by the courts.

The foregoing references are sufficient to show the doctrine that has prevailed in this State upon this question, and the manner in which it has been applied. Applying it to these two cases, we find that the facts exhibited by the records before us, fairly viewed, do not make out a case that would authorize the interference of the court in behalf of either appellant Briggs or appellee Beall. Considering the character and location of their property, its proximity to the two railroads, their depots and shops, running through and located in the town, and to the business portion of the town, the actual and prospective growth of the town, and the propriety, under existing conditions, of extending the police jurisdiction of the town over the locality, and the benefits and advantages necessarily afforded to and enjoyed by them, by reason of the very existence and presence of the municipal government, in common with other citizens and property owners on whom the burden of maintaining it had been cast, it was, in our opinion, rea

EXECUTION LEVY ON PERSONALTY AS SATISFACTION-STAY OF COLLATERAL AND OTHER ACTION. Execution Levy as Satisfaction.-It is a familiar rule that the levy of an execution upon personal property of the execution debtor of (apparently) sufficient value to pay the judgment operates, while the levy is undisposed of, as a satisfaction of the judgment. Such levy, however, is not an absolute satisfaction or discharge, but a satisfaction sub modo, only, or a prima facie satisfaction.1 And such levy is presumptive satisfaction to the value of the property so seized.2 A leading case upon such levy as a satisfaction sub modo, is Green v. Burke, 23 Wend. (N. Y.) 490. This presumptive satisfaction may be rebutted. If possession of the property is, by agreement with the debtor, or by his wrongful act, regained by him, or is taken on a delivery bond, or if the levy is rendered ineffectual by a perfected appeals and the like, the prima facie satisfaction is rebutted; and if on sale the property proves insufficient, the satisfaction will be to that extent rebutted; and there may be prior liens which take the property for their extinguishment.8 A few cases apparently hold that a levy of execution on personal property of the debtor is per se a satisfaction," but the expression

1 Freeman on Judgments. § 475: on Executions, § 269; French v. Snyder, 30 Ill. 339; Chandler v. Higgins, 109 Ill. 602; Bennett v. McGrade, 15 Minn. 132; Newsome v. McLendon, 6 Ga. 392; Hanness v. Bonnell, 23 N. J. L. 159.

2 Alexander v. Polk, 39 Miss. 737.

3 Chandler v. Higgins, supra; Barber v. Reynolds, 44 Cal. 519; Peck y. Tiffany, 2 N. Y. 451; Willis v. Jelineck, 27 Minn. 18; Churchill v. Warren, 2 N. H. 298; Williams v. Gartell, 4 Green (Iowa), 287; Smith v. Hughes, 24 Ill. 270; U. S. v. Dashiel, 3 Wall. 688; Thomas' Ex'rs v. Cleveland, 33 Mo. 126.

4 Wade v. Watt, 41 Miss. 248; Montgomery v. Wayne, 14 Ill. 373; Cornelius v. Burford, 28 Tex. 202.

5 Trenary v. Cheever, 48 Ill. 28; Cole v. Robertson, 6 Tex. 356; Rhea v. Preston, 75 Va. 757.

6 Bennett v. McGrade, supra; Alexander v. Polk, 39 Miss. 737. (In this case it is said property taken out of officer's possession by due course of law and

is generally to be taken with some qualification. Thus in the Illinois case cited (Martin v. Charter), where such a levy is spoken of as of itself a satisfaction, it is said that the rule of law has been changed by the legislature; but other Illinois cases plainly treat the satisfaction as sub modo only.

Rule Operates as Between the Immediate Parties to the Judgment or Execution.There is much clear authority that the levy operates only as between the immediate parties to the judgment; and in many cases where it is said that the satisfaction will be a satisfaction also as to a surety or third party, it will be found either that the judgment was also against the surety or that some other reason intervenes, as that the surety or a guarantor was released by reason of the execution lien's having been given up without consent of such other party and to his injury. In Campbell v. Spence, it is said that the levy of execution is "as between the parties thereto" satisfaction, and the property being left with the defendant was held a satisfaction as to a junior incumbrancer;10 but it appears that the execution in favor of the latter was levied on the property, and it necessarily became prior to the former lien, which was in effect abandoned. And so, in other cases, it would be more accurate to say that sureties or guarantors are released from their obligations by reason of the judgment creditor's having given up a lien or collateral security without their consent," or that the real equities of the parties will be considered.12 The reason that a new action or execution should not be had against the defendant, pending an undisposed of levy on personalty, lies largely in the maxim nemo debet bis vexari, and in the fact that such levy, unlike a levy on land, takes the property from the possession of the owner and vests a special property in the officer; but the basis of the reason would not extend to third perdefendant, and took a bond with security to pay the debt at the end of three months. And see State v.

sons not parties to the judgment. Personal property is thus brought in custodia legis, but neither possession nor ownership is brought into the execution creditor; a lien is created, but it is not payment. A guarantor's liability is often a distinct obligation from the principal's debt, having its own separate consideration. The creditor, with an execution lien, is still pursuing his remedy. It is the privilege, and ought to be the duty, of the guarantor, who has guaranteed the prompt payment of a debt at maturity, to pay the debt and become subrogated to the creditor's securities, including an execution lien. "A judgment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfaction to the party; and, therefore, till then it cannot operate to change any other collateral concurrent remedy." 13 Thus, where the guaranty was that the notes should be paid, it was considered that nothing short of actual payment, or some act or neglect of the creditor to the prejudice of the guarantor, will discharge the liability; it is the judgment debtor that is not to be unreasonably harassed by successive levies; a levy is not payment.14

Extension of the Rule-Suspension of Action Against Third Parties.-But the technical satisfaction of an execution by levy on personal property is by many courts held to suspend the right of action on collaterals or against third parties, as sureties and guarantors, as well as the right to an alias execution or an action on the judgment. 15 Thus, in Illinois, it is held that, if the judgment creditor sues out a fresh execution, it will be set aside on motion; if he brings an action on the judgment, or on any collateral security for its payment, the levy may be set up as, a defense to the further maintenance of the suit;16 and the levy of an execution upon real estate does not, "like the levy of an execution on personal property, operate, while the levy is undisposed of, as such a

attempt to enforce its collection in any other manner. ''17

A Levy or Technical Satisfaction is not Payment. Not now speaking of the performance of obligations other than for the payment of money, payment, it may be said, is a discharge in money, or in anything which the creditor accepts for the discharge or as payment of a debt.18 The levy of an execution on goods and chattels is held not to constitute a payment of the judgment. 19

Stay of Proceedings, but not a Bar.Courts of general jurisdiction probably have inherent power to stay proceedings, where the purpose of the suit is simply to vex or annoy the defendant without enforcing a just demand, or where simultaneous actions are brought for the same cause; 20 and the court might justly exercise this power where the actions are not between identical parties, but are for the benefit of one and under his control. But there should be only a stay or temporary abatement of the suit and not a bar. Suits may rightfully be begun and pending against both principal and guarantor at the same time, unless against the provisions of the contract or statute. If, after suits are so pending, a judgment is taken against the principal and levy of execution thereupon is made on personal property, a plea or proper motion might be interposed in the suit against the guarantor to procure a stay until the levy is disposed of, or the latter action could properly be allowed to proceed to judgment, and then execution be stayed until the levy is disposed of. Plainly it would be wrong to bar the suit against the guarantor. According to the practice of the particular State some motion or plea in abatement could be framed to meet the case, the judgment or order upon which would be "that the plaintiff remain without day until," etc. "Pleas which neither barred the action nor abated the writ were well known to the common law. ** All these

did not abate or destroy the writ, but merely suspended the action until the tempo

defendant plead in bar that he was prior to suit sued in garnishment for the same debt, the defense was held not good. "Either the garnishee might be compelled to pay the debt twice, or the creditor might be injuriously affected. All these consequences are avoided by considering it (the offered defense) as cause for suspending the action of the creditor until the attachment against his debtor is determined. When, therefore, the fact of

the attachment pending for the same debt is made known to the court, *it will either suspend all proceedings until the attachment suit is determined, or render judgment with a stay of execution, which can be removed or made perpetual, in whole or in part, as the exigency of the case may require."22 Where a defendant plead, in form in abatement, but in bar of the action, the pendency of an attachment suit against the plaintiff and garnishment therein against the defendant, the plea was held not good, and that the proper course would have been for the court on motion to have ordered a suspension of proceedings until the attachment was disposed of. 23 Even where there was a levy on land only, it was said that the court, in the exercise of a sound discretion to prevent the use of legal rights in an unreasonable manner, could have stayed proceedings in another suit, until the sale and the return of the execution.24 Although in some cases it is assumed that the levy of execution upon the debtor's property sufficient to satisfy it is such a satisfaction as will not only bar another suit on the judgment, but any attempt to enforce collection of the debt in any other manner, while the levy still subsists undisposed of,25 yet that more than a suspension of action is meant or should be allowed is not supported by reason or the weight of authority. Where a creditor has obtained two judgments, one against the debtor and the other against the guarantor, he is, of course, entitled to but one satisfaction. The defendants are in a measure joint judgment debtors, and a satisfaction by one is a satisfaction as

argue that, after execution levy on personal property ample to satisfy one judgment and pending a sale, the other debtor could by motion or the writ of audita querela have satisfaction entered of the judgment against him. The right of action on a guaranty for the prompt payment of a note at its maturity accrues, of course, on such maturity of the note, and the statute of limitations would begin to run. If the statute is running against the cause of action, and suit cannot be brought on account of a levy on personal property, or, if pending, must on motion or plea be dismissed or barred because of such undisposed of levy, the claimant may be barred of his rights. The plaintiff might be unreasonably delayed, by collusion or otherwise, until his claim is barred by the statute.27 Peoria, Ills. NEWTON WYETH.

27 McFadden v. O'Donnell, 18 Cal. 160.

Appellate Court of Indiana, May 6, 1896.

1. Where a statute authorizing the improvement of streets at the expense of abutting property owners was repealed by implications, but before it was declared by a court to have been repealed proceedings were commenced for the improvement of a public street, and the work completed; the contractor being advised by an attorney and acting under the belief that the proceedings for the improvement were all proper: Held, that a property owner, who stood by, with knowledge of the improvement, and permitted the work to be done without objection, was estopped to attack the validity of the proceedings and the right of the contractor, given by and under the act which was repealed, to enforce a lien for the work against his abutting property.

2. Rev. St. 1894, Sees. 348, 670, prohibiting a reversal for overruling a demurrer to a pleading where it ap pears that the merits of the case have been fully determined, does not, where a case has been reversed for error in overruling a demurrer to the complaint, render such reversal res judicata on a plea of estoppel interposed on the former appeal after the demurrer was overruled, the evidence in support of the plea not having been in the record on the former appeal.

LATZ, J.: This is the second appearance of this cause in this court. On the former appeal the position of the parties was in the inverse order. In the former decision this court held the complaint insufficient and reversed the cause, with directions to sustain the demurrer to the complaint. The defendant's demurrer for want of facts was sustained to the complaint, and plaintiffs failing to plead further final judgment

was rendered against them. The appeal is prosecuted from this judgment, and the ruling on the demurrer is the error assigned.

The complaint avers, that on the 14th day of April. 1889, the defendant was the owner of a certain tract of land situated within the corporate limits of the town of Mooreland, Indiana, which land fronted upon Broad street in said town; that on said day a petition was filed with the board of trustees of said town, signed by a majority of all the resident owners of lots and parcels of land fronting on said street, praying for the improvement of said street, by grading and graveling the same; that the board granted the prayer of the petition, and passed an ordinance directing the improvement to be made in accordance with plans and specifications adopted, and the clerk of said town gave due notice of the time of letting contract for the construction of the improvement, and the plaintiffs were awarded the contract therefor, and gave a bond to secure the fulfilment of the same; that in pursuance of such contract the plaintiffs entered upon and made the improvement in accordance with the plans and specifications of said board, and that the work was approved and accepted; that the amount of the cost of such improvement duly apportioned to the defendant's track of land was $61.56, which was its just proportion; that more than 10 days have expired since the assessments were made, and that the plaintiffs demanded payment therefor, which was refused, and that the same is due and wholly unpaid. Copies of the proceedings had before the board were made exhibits, and the amended complaint avers that they entered into said contract and did said work without any knowledge in fact as to the law under which it was being done, and in good faith believing that said law named in the complaint was in full force and effect; and the defendant stood by and was present at the doing of said work, and made no objections to the same, and that by reason of said street improvement her said property was and is benefited to the full amount of said assessment. Plaintiffs further aver that the defendant, long prior to the improvement herein set out, removed her fence along said street, and set it back therefrom a distance of six feet, thereby making the street wider the whole length of her said property, and allowed and permitted the public generally, and especially the citizens of Mooreland, Ind., to use said strip aforesaid for street and sidewalk purposes, for travel by horses drawing wagons and buggies, and for pedestrians, long before the improvement by these plaintiffs: that, when the plaintiffs commenced work on said street, said defendant demanded of them pay for said strip of ground aforesaid, so thrown out and dedicated as aforesaid; thereupon said plaintiffs informed the defendant that she would have to look to the board of trustees of said town for pay therefor; that said defendant afterwards went before said board of trustees, and saw and talked with them