out holding it in trust for those then having the title he was employed to sustain. Henry v. Raiman, 25 Penn. St. 354. Without expressing any opinion as to the soundness of this case with respect to the extent to which the principle of trusteeship is asserted, it may be laid down as a general rule that an attorney can in no case, without the client's consent, buy and hold otherwise than in trust, any adverse title or interest touching the thing to which his employment relates. He cannot in such a way put himself in an adversary position without this result. The cases to this effect are very numerous and they are all in harmony. We refer to a few of them: Smith v. Brotherline, 62 Penn. St. 461; Davis v. Smith, 43 Vt. 269; Wheeler v. Willard, 44 id. 641; Giddings & Coleman v. Eastman, 5 Pai. 561; Moore et al. v. Bracken, 27 III. 23; Hockenburg v. Carlisle, 5 Watts & S. 349; Hobedy v. Peters, 6 Jurist, pt. 1, 1794; Jett v. Hempstead, 25 Ark. 462; Case v. Carrol, 35 N. Y. 385; Lewis v. Hillman, 3 H. of L. C. 607.

The same principle is applied in cases other than those of attorney and client.

Where there are several joint lessees and one of them procures a renewal of the lease to himself, the renewal inures equally to the benefit of all the original lessees. Burrel v. Bull, 3 Sandf. Ch. 15.

Where there are two joint devisees and one of them buys up a paramount outstanding title, he holds it in trust for the other to the extent of his interest in the property, the cestui que trust refunding his proportion of the purchase-money. Van Horne v. Fonda, 5 Johns. Ch. 407.

Where a surety takes up the obligation of himself

ence from rectitude involves the breach of all these obligations. None are more honored or more deserving than those of the brotherhood, who, uniting ability with integrity, prove faithful to their trusts and worthy of the confidence reposed in them. Courts of justice can best serve both the public and the profession by applying firmly upon all proper occasions the salutary rules which have been established for their government in doing the business of their clients.

We shall discharge that duty in this instance by reversing the decree of the Circuit Court and remanding the case, with directions to enter a decree whereby it shall be required that the complainant, Baker, deposit in the clerk's office for the use of the defendant George P. Humphrey the sum of twenty-five dollars, and that Humphrey thereupon convey to Baker the premises described in the bill, and that the deed contain a covenant against the grantor's own acts and against the demands of all other persons claiming under him. And it is so ordered.

ATTACHMENT ON INSUFFICIENT AFFIDAVIT WILL NOT PROTECT OFFICER.

MICHIGAN SUPREME COURT, APRIL 30, 1880. MATTHEWS, plaintiff in error, v. DENSMORE ET AL. The fact that a writ of attachment is valid on its face will not protect an officer acting under it where it was issued without a sufficient affidavit.

what he paid and interest. Reed v. Norris, 2 Mylue & Craig, 361.

Where a lessee had made valuable improvements pursuant to the requirements of his lease, and procured an adverse title, intending to hold the premises in his own right, it was held that he was a trustee and entitled only to be paid what the title cost him. Cleavenger v. Reimar, 3 Watts & Serg. 486.

The case in hand is peculiarly a fit one for the application of the principle we have been considering. It is always dangerous for counsel to undertake to act, in regard to the same thing, for parties whose interests are diverse. Such a case requires care and circumspection on his part. Here there could be no objection, there being no apparent conflict of interest, but upon discovering that the title was imperfect it was the duty of the attorney promptly to report the result to Baker as well as to Hurds & Smith, and to advise with the former, if it were desired, as to the best mode of curing the defect. Instead of doing this he carefully concealed the facts from Baker, gave Hurds & Smith the choice of buying, and upon their declining, bought the property for himself, and has since been engaged in a bitter litigation to wrest it from Baker. For his lapse at the outset there might be some excuse, but for his conduct subsequently there can be none. Both are condemned alike by sound ethics and the law. They are the same upon the subject. Actual fraud in such cases is not necessary to give the client a right to redress. A breach of duty is "constructive fraud," and is sufficient. Story's Eq., §§ 258, 311.

The legal profession is found wherever Christian eivilization exists. Without it society could not well go on. But like all other great instrumentalities, it may be potent for evil as well as for good. Hence the importance of keeping it on the high plane it ought to occupy. Its character depends upon the conduct of its members. They are officers of the law, as well as the agents of those by whom they are employed. Their fidelity is guaranteed by the highest considerations of honor and good faith, and to these is superadded the sanction of an oath. The slightest diverg

defendant below as United States marshal, and claimed by plaintiffs below. Sufficient facts appear in the opinion.

Julian G. Dickinson and John D. Conely, for plaintiff in error.

Henry P. Henderson, for defendants in error.

COOLEY, J. Plaintiff in error is marshal of the United States for the Eastern district of Michigan, and as such levied an attachment, issuing out of the United States Circuit Court for that district, upon a stock of goods in possession of defendants in error.

The plaintiff in the attachment composed the firm of Simonds, Hatch & Whitten, and the defendants the firm of Gates & Marler. Before the attachment was served, Densmore, by virtue of one chattel mortgage given by Gates & Marler, and Elisha P. and De Witt Grow, by virtue of another, had jointly taken possession of the stock of goods, and were then in possession and making sale of them. When the marshal seized the goods and dispossessed them they brought suit in trespass. The marshal justified under his attachment. On the trial the attachment was held to be void for fatal defects in the affidavits on which it issued, and the plaintiffs had judgment.

The record in error presents only the one question, whether the court was right in ruling out the officer's justification. In this court scarcely an attempt has been made to support the affidavit. The statute under which the writ was taken out requires the plaintiff, or some one in his behalf, to make affidavit of the amount owing to him from the defendant, over and above all set-offs, and that the same is due. Comp. Laws, § 6398. The defect in the affidavit in this case was that it did not aver that the debt was due.

The affidavit might be true, and yet no right of action have accrued upon it. Cross v. McMahon 17 Mich. 571; Wells v. Parker, 26 id. 102. As this proceeding is extraordinary, and depends wholly upon the statute, the failure to follow the statute in this important particular was correctly held to render the affidavit nugatory. It is nevertheless urged on behalf of the marshal

that, though the affidavit was defective, his writ was fair upon its face, and was, therefore, a complete protection to him, on the familiar principle that an officer is justified in obeying any process which appears to be lawfully issued to him, and which on its face apprises him of no legal reason why he should refrain from doing so. Erskine v. Hohnbach, 14 Wall. 613; Bird v. Perkins, 33 Mich. 28; Watson v. Watson, 9 Coun. 140; Lott v. Hubbard, 44 Ala. 593; Hill v. Figley, 25 Ill. 156; Seekins v. Goodale, 61 Me. 400; Underwood v. Robinson, 106 Mass. 296; Walden v. Dudley, 49 Me. 419; Gore v. Gorden, 66 N. C. 371.

And no doubt the writ in this case must be regarded as fair on its face. Uuder the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it, and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer to whom the writ is issued is supposed to know nothing of it. Comp. Laws, § 6433. It was under the amendatory statute that the writ in this case was issued, and an inspection of its provision shows that the writ contains all the recitals that the statute requires. Comp. Laws, § 6435. But the principle which is appealed to has no application to a case of this description.

The marshal in this case is not seeking to defend himself under his writ; he is endeavoring to assail the title of others. He has not seized goods in the hands of Gates & Marler and confessedly owned by them, but he has taken goods away from Densmore and the Grows to which they assert a title as mortgagees, and is seeking to hold them on the alleged ground that, by virtue of a writ against Gates & Marler in favor of certain of their creditors he is in position to contest the right set up by the mortgagees. Now, if, in point of fact, he has a valid writ of the kind he claims, the marshal, representing the creditors, is in position to attack the mortgage; but if he has no such writ it is no concern of his whether the mortgages are valid or not.

The first step in his justification is, therefore, to show, not a writ merely, but a valid writ, and there can be no valid writ of attachment without a sufficient affidavit. Earl v. Camp, 16 Wend. 562; Parker v. Walrod, 16 Wend. 514, 517; Spafford v. Beach, 1 Doug. (Mich.) 199; Leroy v. East Saginaw, 18 Mich. 233; Watkins v. Wallace, 19 id. 57, 74. The marshal understood this, and endeavored to satisfy the rule by producing a certified copy of the affidavit. Unfortunately the evidence defeated the justification instead of supporting it.

The Circuit Court decided correctly in holding that no ground had been shown for interfering with the possession of the mortgages; and the judgment must be affirmed, with costs.

(The other justices concurred.)

NEW YORK COURT OF APPEALS ABSTRACT.

EVIDENCE- OF VALUE OF GOODS WHEN PRICE AT ACTUAL SALE NOT.

In an

CONVERTED— Witness purchased partnership property of defendant which was sold in fraud of plaintiff, defendant's partner. action in equity by plaintiff against defendant to secure an accounting for his disposition of the partnership property, evidence was offered by defendant to show the net proceeds of such property realized by witness on a subsequent sale as a means of establishing its value. Held, there having been a change in time and circumstances between the sale by defendant and that by the witness, that the exclusion of the evidence was proper. The cases show that the sum paid

for property (Hoffman v. Conner, 76 N. Y. 121; Wells v. Kelsey, 37 id. 143; Smith v. Griffith, 3 Hill, 338: Cary v. Gruman, 4 Hill, 625), or the price at which it sold at public sale (Crounse v. Fitch, 1 Abb. App. Dec. 475; Campbell v. Woodworth, 20 N. Y. 499; Gill v. McNamee, 42 id. 44), may under certain circumstances be given in evidence as tending in some degree to establish its market value. But evidence such as was here offered had no such effect, the articles not being in the same condition as at the time when the defendant became chargeable. Judgment affirmed. Flanagan v. Maddin, appellant. Opinion by Danforth, J. [Decided June 1, 1880.]

MASTER AND SERVANT-MASTER LIABLE FOR INJURY TO SERVANT FROM DEFECTIVE MACHINERY THOUGH NEGLIGENCE OF CO-SERVANT CONTRIBUTES.—

An engine in defendant's railroad was out of order in many particulars, of which fact defendant's managing officers had notice. Among these defects the throttle valve leaked and the thread upon the screw which served to hold the reverse bar in place and thus controlled the motion of the engine was so worn as to be useless. As a natural and necessary consequence of the defects last mentioned the steam escaped from the boilers into the cylinders when the engine was put in motion causing an injury to plaintiff, who was in the employ of defendant. The engine was furnished with cylinder cocks, which if defendant's engineer had opened them would have allowed the steam to escape, and prevented the accident, but the engineer neglected to open them. Held, that defendant was liable for plaintiff's injury and was not relieved because the negligence of plaintiff's co-servant, the engineer, contributed to such injury. As between plaintiff and defendant it was the duty of the latter to furnish for use in the prosecution of its business good and suitable machinery and keep it in repair. York Cent. R. R. Co., 25 N. Y. 562; Cent. & H. R. R. R. Co., 49 id. 521; & Albany R. R. Co., 53 id. 549; Corcoran v. Holbrook, 59 id. 519. It was also the duty of defendant to furnish for the management of such machinery careful and trustworthy servants, and if these conditions were fulfilled, the plaintiff, though injured by the negligence of his fellow-servant, could maintain no action against their common principal. Coon v. Syracuse & Utica R. R. Co., 5 N. Y. 492. But neither upon principle nor authority can it be held, that the negligence of a servant in using imperfect machinery excuses the principal from liability to a co-servant for an injury which could not have happened had the machinery been suitable for the use to which it was applied. Judgment affirmed. Cone v. Delaware, Lackawanna & Western Railroad Co., appellant. Opinion by Danforth, J.

[Decided June 1, 1880.]

Wright v. New Laning v. N. Y. Flike v. Boston

PRACTICE-ORDER NOT MODIFIED BY OPINION WHEN OPINION MAY BE REFERRED TO FOR EXPLANATION-DISCRETION OF COURT GOVERNED BY RULE— GRANTING LEAVE TO PLEAD AFTER JUDGMENT ON DEMURRER.-(1) When an order of the court below expresses the ground upon which the order is put but the expression is coupled with phrases that make doubt, the opinion of that court may be referred to to find what that ground is. Tilton v. Beecher, 59 N.Y. 176. But it has been held (Hewlett v. Wood, 55 N. Y. 634), that the order cannot be qualified in its operation and effect by reference to the opinion of the court. The dictum of Grover, J., in Tracy v. Altmyer, 46 N. Y. 598, has not been approved. (2) While cases may be cited in which after judgment on demurrer a motion has been entertained and granted for leave to withdraw the demurrer and put in an answer on the merits (Atkinson v. Bayntun 1 Bing. N. C. 740; Bell v. Wilkinson, 26 Week. Rep. 275), they show that the court has a dis

cretion so to do. They do not show that it is always discreet and proper and conducive to justice to exercise the power. In Atkinson v. Bayntun the facts were thought to be peculiar. In Patten v. Harris, 10 Wend. 623, at the time when a demurrer was adjudged frivolous, permission was given to make a special application for leave to plead. Even then the Special Term with great reluctance consented to give leave. Matters of practice, while in the first instance, in the absence of statute, they are in the discretion of the court, come after a while to be governed absolutely by the custom of the courts, and what is found in any case to have been held by authoritative decisions to be the custom of the courts becomes thus the way in which discretion must go. It is a general principle in the exercise of discretion for or against the withdrawal of a demurrer with leave to plead to the merits, that it is not to be done when there has been judgment upon the demurrer overruling it without leave to answer or with leave to answer not availed of by the demurrant. See Saxby v. Kirker, Sayer, 11; Seaman v. Haskins, 2 Johns. Cas. 284; Hildreth v. Harvey, 3 id. 301; Furman v. Haskin, 2 Cai. 369; Currie v. Henry, 3 Johns. 140. As to exception see Miller v. Heath, 7 Cow. 101. Order affirmed. Fisher v. Gould, appellant. Opinion by Folger, C. J. [Decided June 1, 1880.]

USURY · ACCOMMODATION PAPER FINDING OF REFEREE ON CONFLICTING EVIDENCE- CERTIFICATE BY MAKER OF NO DEFENSE - EVIDENCE OF INTENT - CONSIDERATION EXCHANGE OF OBLIGATIONS. In an action upon a promissory note the defense of usury was set up. Defendant claimed that the note was made by him for the accommodation of F., and was by F. transferred to plaintiff for the usurious consideration, and F. gave testimony tending to establish these facts. Plaintiff introduced a written statement made by defendant, setting forth that the note was business paper, and that there was no defense to the same in law or in equity. Held, a sufficient conflict in evidence to forbid this court interfering with the finding of the referee that the note was a business note, especially where he was not asked to find otherwise. Prima facie the note was given for value by defendant and the burden was on him to prove the congenital defect alleged. (2) The note in question was with other notes presented to plaintiffs to discount and he discounted the lot at a discount of more than the legal rate of interest. Held, that prima facie the price paid was in part for each one of the notes in such ratio to the whole price paid as the apparent value of each note bore to the apparent value of the whole, and if such proportionate price should bring the transaction within the provisions of the usury law the note would prima facie be void. But this presumption is capable of being rebutted by evidence that the paper presented was that of different persons of varying credit. (3) In this case the note, when offered for discount, was accompanied by a certificate of defendant that it was business paper and free from defenses. Held, that permitting plaintiff to testify to his belief in the truth of the certificate, and that he had no purpose or intent to use it to evade the statute of usury, was not error. While the reception of this kind of evidence is not to be encouraged, parties have been permitted to speak as to their mental operations in the doing of an act that is called in question where the intent with which it is done serves to characterize it. McKown v. Hunter, 30 N. Y. 625; Thurston v. Cornell, 38 id. 281; Bedell v. Chase, 34 id. 386. See, also, Dillon v. Anderson, 43 N. Y. 231; Fiedler v. Darrin, 50 id. 437. (4) A chattel mortgage from F. to defendant, if shown to be given to secure defendant against loss by reason of the making of the note, held, admissible, the mortgage constituting a consideration for the note and giving it

inception at the time defendant transferred it to F See Dowe v. Schutt, 2 Den. 621; Cameron v. Chappell, 21 Wend. 94. Judgment affirmed. Bayliss v. Cockroft et al., appellants. Opinion by Folger, C. J. [Decided June 8, 1880.]

UNITED STATES SUPREME COURT

ABSTRACT.

OCTOBER TERM, 1879.

EXECUTOR-ADMISSION OF ASSETS IN PLEA CONCLUDES ESTOPPEL PRACTICE. - Appellees filed a

bill for themselves and other creditors against an executor and devisees, praying for an account of testator's personal estate, setting forth that he held testator's note for $12,000, which was due and unpaid; that testator's personal estate was insufficient to pay his debts in full; that the executor had paid some debts in full and left others unpaid; that testator left real estate, etc. The defendants, in their plea, set forth that the executor had in his hands assets sufficient to satisfy complainants' and all other claims known against testator's estate, when proved in a tribunal of competent jurisdiction, according to law, but that the executor disputes the said claim and denies the justice thereof; that the claimant has not sought to enforce the claim against executor and the assets by proper proceedings at law. Wherefore defendants plead the premises in bar and pray that complainants be required to enforce their claim by proper proceedings at law, etc. To this plea complainants filed a replication and proved their claim, and that by the accounts filed by the executor he claimed credit for moneys paid, etc., $27,014.75, and charged himself with assets, $31,794.62, showing a balance in his hands of $4,729.87. Held, that the complainants were entitled to a decree for the amount of their debt. Having put the plaintiff to the trouble and delay of an issue, the defendant cannot, after it is found against him, claim the right to file an answer; although, if the complainant desires a discovery which the plea sought to avoid, he may undoubtedly insist upon it. But that is the complainants' right, not the defendants'. Lord Hardwicke said: "All pleas must suggest a fact; it must go to a hearing; and if the party does not prove that fact which is necessary to support the plea, the plaintiff is not to lose the benefit of his discovery, but the court may direct an examination on interrogatories in order to supply that." Brownsword v. Edwards, 2 Ves. 217. This statement is adopted by Lord Redesdale and by Mr. Beames and all subsequent writers on equity pleading. Mitford's Pleadings (4th ed.), 302; Beames on Pleas in Equity, 318; Story's Eq. Plead., § 697. If the plea is found to be false it would seem to be just and equitable that the case should stand as if the defendant had admitted the allegations of the plaintiff. Sir Thomas Plumer states the matter thus: "Supposing a plea to be correct in form, but proved false, it seems to be conceived that the course of the hearing is to take it up just as if there was no answer. That is not correct. Upon a plea, found false, the plaintiff is entitled to a decree; and if a discovery is wanted, the defendant is ordered to be examined upon interrogatories." Wood v. Strickland, 2 Ves. & Beam. 158. Chancellor Walworth, in a case before him, where the defendant produced no evidence to establish the truth of his plea, said: "Where a plea in bar to the whole bill is put in, if the complainant takes issue thereon he admits the sufficiency of the plea, and leaves nothing in question but the truth thereof. If at the hearing the plea is found to be true the bill must be dismissed. But if the plea is untrue the complainant will be entitled to a decree against the defendant in the same manner as if the several matters charged in

the bill had been confessed or admitted. If a discovery is necessary to enable the complainant to obtain the relief sought for by his bill, the defendant cannot evade answering by putting in a plea which turns out to be false. In such a case, after the plea is overruled as false, the complainant may have an order that the defendant be examined on interrogatories before a master as to the several matters in relation to which a discovery was sought by the bill." Dows v. McMichael, 2 Paige, 345. In the present case, the complainants did not see fit to insist on a further discovery. Being entitled to a decree pro confesso as to the principal charges of their bill, and the executor having admitted sufficient assets to pay the debts of the estate they were content to take a decree against him for the amount of the debt. The executor's admission, as we have before said, was a good ground for charging him with the liability, though he could not urge it as evidence in support of his plea. And as an admission of assets renders the executor personally liable, a decree against him was proper. The usual decree on a creditor's bill is for an account, but as said by ViceChancellor Wigram in a similar case, "the reason for and the principle of the usual form of decree have no application where assets are admitted, for the executor thereby makes himself liable to the payment of the debt. In such a case, the other creditors cannot be prejudiced by a decree for the payment of the plaintiff's debt; and the object of the special form of the decree in a creditor's suit fails. * * I am satisfied that in this case there ought to be a decree for immediate payment." Wingate v. Field, 2 Hare, 211, 212; Story's Eq. Jur., § 548a. Decree of Dist. Columbia Sup. Ct. affirmed. Kennedy, appellant, v. Crasswell et al. Opinion by Bradley, J.

TRUST-NAKED POWER TO SELL OR MAKE EXCHANGE IMPLIES POWER TO MAKE PARTITION. — By the provisions of certain instruments relating to specified real estate, a trustee named therein was in one case given power to sell and exchange, superintend, possess, manage and control for the benefit of all concerned; in the other, full power to dispose of all or any portion and invest the proceeds in any manner he might think proper for the benefit of those holding the beneficiary interest. Held, that under either power the trustee had authority to make partition. The question whether a naked power to sell or exchange implies a power to make partition is discussed by Sir Edward Sugden in his work on Powers. He says: "It is clear that a power to make partition of an estate will not authorize a sale or exchange of it; but it has frequently been a question amongst conveyancers whether the usual power of sale and exchange does not authorize a partition, and several partitions have been made by force of such powers, under the direction of men of eminence. This point underwent considerable discussion on the title which afterward led to the case of Abel v. Heathcote, 4 Bro. C. C. 278; 2 Ves. Jr. 98. Mr. Fearne thought the power did authorize a partition, on the ground that a partition was in effect an exchange." Sugden adds, that the lords commissioners, Eyre, Ashurst and Wilson, before whom the case was first heard, all thought that the power was to receive a liberal construction, as its object was to meliorate the estate. Eyre thought, that upon the word "sell," the trustees should have a power of making partition, because it was in effect to take quite a new estate. Ashurst and Wilson thought, that whatever power might be derived from the word "sell," the other words of the power, "convey for an equivalent " (which were also used), were sufficient. But they made no decision. Upon the cause coming before Lord Rosslyn, he determined that the power was well executed, and founded his opinion upon its being in effect an exchange, as the consequences and effects of

a partition and exchange, as to the interests of the parties, are precisely the same. Sir Edward then notices the decision of Lord Eldon in the case of McQueen v. Farquhar, 11 Ves. 457, that a power to sell simply does not authorize a partition. He then adds: "Until the question shall receive further decision, it can scarcely be considered clear that a power to exchange will authorize a partition;" but he proceeds to show that the decision in Abel v. Heathcote must have been based on the power to exchange, and not on any additional words. After referring to the case of Atty.Gen. v. Hamilton, 1 Madd. 214, which was not decisive of the point, Sugden closes his discussion by saying: "But as Lord Rosslyn has observed, this objection may be obviated where there is a power of sale. The undivided part of the estate may be sold, the trustees may receive the money and then lay it out in the purchase of the divided part, and although the sale is merely fictitious in order to effect the partition, it should seem that the transaction cannot be impeached." 2 Sugden on Powers, 479–482 (7th ed.), 1845. See, also, Doe v. Spencer, 2 Exch. 752; Bradshaw v. Fane, 2 Jurist (N. S.), 247. In a recent case, however, In re Frith and Osborne, L. R., 3 Ch. Div. 618, decided in 1876, by Sir George Jessell, master of the rolls, it was distinctly adjudged, after a masterly review of all the previous authorities, that a power to sell and exchange does include the power to make partition. In delivering his judgment, the master of the rolls concludes as follows: "This is the state of the authorities. Lord St. Leonards says that it wants another decision to make it quite clear. I am willing to give the decision (supposing the doubt is not taken away by the decision of the Court of Exchequer followed by the vice-chancellor Kindersly) that the passage in the Touchstone [declaring that joint tenants, tenants in common and coparceners, cannot exchange the lands they do so hold, one with another, before they make partition] is not good law, and that you can have such an exchange, and if you can have such an exchange, why could not the power authorize the exchange of an undivided moiety in Whiteacre for another undivided moiety in Blackacre? I decide that it does. We have conflicting opinions between what the judges said in Doe v. Spencer, and what the vice-chancellor intimated his opinion to be. It is not necessary for me to decide that question. I must say, if I had to decide it, I should be inclined to follow the opinion of the vicechancellor instead of the Court of Exchequer, for if it can be done as between two, I do not see why it could not be done as between more than two, but I have not to decide that question now." Decree of U. S. Cir. Ct., S. D. Mississippi, affirmed. Phelps et al., plaintiffs in error, v. Shrader. Opinion by Bradley, J.

VIRGINIA SUPREME COURT OF APPEALS

REPORTS.*

CONSTITUTIONAL LAW-STATUTE ABOLISHING PENALTY FOR USURY AFFECTS EXISTING DEFENSES AND IS VALID.-Though the statute of usury, at the time a contract was made, declares the contract to be null and void, if at the time of the decree in the case the statute has been amended and only avoids the contract for the interest, the decree should be for the principal loaned, with interest from the date of the decree. See Town of Danville v. Pace, 25 Gratt. 1, and cases cited; and also the leading case of Curtis v. Leavitt, 15 N. Y. 229. Paige, J., there says: "The defense of usury is in the nature of a penalty or forfeiture, and may at any time be taken away by the Legislature in respect to previous as well as subsequent contracts,

*To appear in 31 Grattan's Reports.

without trenching upon any vested right. A proposition that a party can have a vested right in enforcing | a penalty or forfeiture, against which it is the office of a court of equity to relieve, is a legal solecism. Statutes of usury are highly penal in their character, and the defense of usury has always been regarded as an unconscientious defense, and has never received the favor either of courts of law or equity. No penalty can be enforced after the repeal of the law imposing it, unless saved by express words in the repealing act. The repealing statute obliterates the statute repealed as completely as if it had not been passed, and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law." Selden, J., said: "Usury being a mere statutory defense, not founded upon any common-law right, either legal or equitable, it was clearly within the power of the Legislature to take it away." Mosby v. St. Louis Mutual Insurance Co. Opinion by Christian, J.

HIGHWAY-DEDICATION TO USE FOR SPECIFIED PERSONS NOT DEDICATION TO PUBLIC. C. and G. owning lots in Richmond, each bounded east by Seventeenth street, and separated by what was at one time the bed of Shockoe creek, but from which the water of the creek had been diverted, enter into a deed by which they fix the boundaries of their lots respectively, and they covenant and agree that there shall be between their lots a street thirty feet wide extending from Seventeenth street westwardly to the

eastern boundary of their lots, and that said street shall be forever kept open as a highway and common for the use of the persons who may be the owners of the lots or land bounded on either side of said street. The street thus provided for did not extend west to any street or alley. Held, looking to the whole deed and the surrounding circumstances, there was not a dedication of the street to the public generally, but only to the owners of the lots or parts of the lots spoken of in the deed; and it is not, therefore, a street over which the city authorities have control, and can authorize a railroad company to lay its track along it. Intent is the vital principle of dedication. In a case where acts and declarations are relied upon to show such intent, to be effectual, they must be unmistakable in their purpose and decisive in their character; and in every case it must be unequivocally and satisfactorily proved. Harris' case, 20 Gratt. 833; Holdane v. Trustees of Cold Spring, 21 N. Y. 474; Washburn on Easm., 133, 134; 2 Dill. on Mun. Corp., § 499. To ascertain the intent of the parties is said to be the fundamental rule in the construction of agreements (Canal Co. v. Hill, 15 Wall. 94); and in such construction courts look to the language employed, the subjectmatter and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are entitled to place themselves in the same situation which the parties who made the contract occupied, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described. Nash v. Towne, 5 Wall. 689, 699. See, also, Maryland v. Railroad Co., 22 id. 105; Moran v. Prather, 23 id. 492. The term "highway" is a generic name for all kinds of public ways-ways common to all the people of the State having occasion to pass over them. Holt, C. J., Queen v. Saintiff, 6 Mod. 255, 258: To constitute a highway, it must be one over which all the people of the State have a common and equal right to travel, and which they have a common, or at least a general interest to keep unobstructed. People v. Jackson, 7 Mich. 433. Here the attempted dedication was to a limited portion of the public, and

such a partial dedication is simply void and will not operate in law as a dedication to the whole public. There may be a dedication of a way to the public for a limited use, but there cannot be a dedication to a limited part of the public. Poole v. Huskinson, 11 M. & W. 827. There does not appear any dedication, partial or otherwise, intended. The language of the deed, fairly construed, manifests a purpose merely to adjust and fix with certainty the boundary between the two lots, and establish a common right of way to be annexed as a permanent easement to the lots, and not for the accommodation of the public. Talbott v. Richmond & Danville Railroad Co. Opinion by Burks, J.

SALE OF PERSONAL PROPERTY TITLE OF INNOCENT VENDEE FROM FRAUDULENT PURCHASER GOOD DELIVERY.- Where a vendee obtains possession of a chattel with the intention by the vendor to transfer both the property and possession, although the vendee has committed a false and fraudulent misrepresentation in order to affect the contract and obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction. And the legal consequence is, that if before the disaffirmance the fraudulent vendee has transferred either the whole or a partial interest in the chattel to an innocent transferee, the title of such transferee is good against the vendor. See Benjamin on Sales, § 433; Williams v. Given, 6 Gratt. 268; Wickham v. Martin, 13 id. 427; Rowley v. Bigelow, 12 Pick. 307; Hall v. Hiuks, 21 Md. 406. Upon the sale of a chattel, to be paid for on delivery, if possession is delivered without the payment, and before the vendor claims the chattel it is sold by the vendee to an innocent purchaser and paid for, the vendor cannot recover the chattel from the innocent purchaser. But if there has not been a contract of sale, but only a transfer of possession, to become a contract of sale when payment is made, the person in possession has no title to the chattel, and can therefore convey none to an innocent purchaser, and the owner may recover the chattel. See as to subject of sales on condition: Wait v. Green, 36 N. Y. 556; Hoffman v. Noble, 6 Metc. 68; Western Transp. Co. v. Marshall, 37 Barb. 509. Old Dominion Steamship Co. v. Burckhardt. Opinion by Christian, J.

CALIFORNIA SUPREME COURT ABSTRACT.

JOINDER OF PARTIES-JUDGMENT IN JOINT ACTION FOR TORT NOT DIVISIBLE. McCool sued Mahoney and Small jointly for malicious arrest and prosecution. The defendants answered separately. The cause was tried with a jury, and this verdict was returned: "We, the jury in the above entitled action, find for plaintiff against Mahoney $3,000, and against Small $500." Judgment was thereupon rendered that plaintiff recover from Mahoney $3,000, of Small $500, and of Mahoney and Small $282.75 costs of suit. Held, that the judgment was erroneous. The action being for a wrong in which both defendants joined, the damages could not be severed. Beal v. Finch, 11 N. Y. 128; Halsey v. Woodruf, 9 Pick. 555; O'Shea v. Kirker, 8 Abb. Pr. 69; Bohun v. Taylor, 6 Cow. 313; Minor v. Mechanics' Bank, 1 Peters, 74; Layman v. Hendrix, 1 Ala. 212; Hardy v. Thomas, 23 Miss. 544; Riley v. McGee, 1 A. K. Marsh, 432; Salmons v. Smith, 1 Saund. 207, note 23. McCool v. Mahoney. Opinion by Ross, J. [Decided April 6, 1880.]

RAILROADS — -CONSTRUCTION OF STATUTE RELATING TO FENCES- OWNER OF LEASED ROAD LIABLE FOR CATTLE KILLED BY FAILURE TO FENCE. - The statute of California provides thus in reference to railroad fences: "It shall be the duty of the railroad company to make and maintain a good and sufficient fence on either or both sides of their property; and in case any