sented the claim to the Probate Court, to be allowed against the estate of deceased. The Probate Court, upon the evidence introduced, allowed the claim, and the executrix appealed to the Circuit Court, where a second trial was had, resulting in a judgment against the estate. An appeal was then taken to the Appellate Court, where the judgment of the Circuit Court was affirmed, and this record is brought here by the executrix for the purpose of reversing the judgment of the Appellate Court.

It is insisted by appellant that a partnership demand cannot be allowed against the individual estate of a deceased partner until the legal remedy against the partnership assets and surviving partners has been exhausted.

In Mason v. Tiffany, 45 Ill. 392, which was a proceeding in chancery, by a creditor of a firm, to enforce payment of a firm debt against the estate of Tiffany, a deceased member of the firm, it was held that every partnership debt being joint and several, it follows necessarily, that resort may be had, in the first instance, for the debt, to the surviving partners, or to the assets of the deceased partner. In the decision of the case it is said: "If it was a fact that the surviving partners remained solvent for a long time before the assignment, and the assigned assets were sufficient to pay this claim, still these did not require the complainant to press his claim against them, the estate of the deceased partner being equally a fund on which he had a right to rely." This case seems to establish the doctrine, in plain words, that a creditor, in equity, has the right, where he holds a claim against a firm, one member of which has died, to proceed against the estate of the deceased member or the surviving partners, as he may elect.

In Silverman v. Chase, 90 Ill. 37, the same question arose, and following the doctrine of the case last cited, it was said: "A partnership debt is joint and several, and the creditor has the right to elect whether he will proceed against the assets in the hands of the surviving partner or against the estate of the deceased partner, as held by this court in Mason v. Tiffany, 45 Ill. 392. Nor will the laches of the creditor in following the assets of the firm preclude a recovery. The creditor has the right to proceed against the estate at any time before the Statute of Limitations has run, and a failure to pursue the partnership assets cannot be relied upon as a defense when suit is brought against the

estate."

whether the survivors be insolvent or bankrupt or not." The same doctrine, but in different language, is declared by Story in his work on Equity Jur., $ 676.

Collyer on Partnership, § 580, declares the law in the following language: "It is now established beyond controversy, that in the consideration of courts of equity, a partnership debt is several as well as joint, and that upon the death of a partner a joint creditor has a right in equity to proceed immediately against the representative of the deceased partner for payment out of his separate estate, without reference to the question whether the joint estate be solvent or insolvent, or to the state of accounts amongst the partners."

Dixon on Partnership, 113, says: "When a liability exists the creditor may, at his option, either pursue his legal remedy against the survivor, or resort in equity to the estate of the deceased, and this altogether without regard to the state of the accounts between the partners themselves, or to the ability of the survivor to pay."

Lindley on Partnership, 1053, says: "Whatever doubt there may formerly have been upon the subject, it was clearly settled before the judicature acts, that a creditor of the firm could proceed against the estate of the deceased partner without first having recourse to the surviving partners, and without reference to the state of the accounts between them and the deceased." See also Parsons on Mercantile Law, 192; Adams Eq. 173; Smith on Mercan. Law, 48; 3 Kent Com. 63, 64, and note.

From the citations made, it would seem that the law as declared in Mason v. Tiffany, and Silverman v. Chase, supra, is fully sustained, at least by text writers of high authority, both in this country and in England. But it will not be necessary to rely alone on the text books for a solution of the question, as the decisions in England and many of the States are in harmony with the rule declared in the text books.

In England, as early as 1816, in Devaynes v. Noble, 1 Mer. 529, it was decided, that in equity parnership debts are joint and several, and a creditor holding a firm debt could resort to the estate of the deceased partner for payment, without showing the insolvency of the survivor. The rule adopted in the case cited was subsequently adhered to and followed in Wilkinson v. Henderson, 1 M. & K. 582, and since the decision of these cases the doctrine there announced has been regarded as the settled law of England.

In Nelson v. Hill, 5 How. 127, the Supreme Court of the United States held that the creditor of a partnership may, at his option, proceed at law against the surviving partner, or go in the first instance into equity against the representatives of the deceased partner; that it was not necessary to exhaust his remedy at law against the surviving partner before proceeding in equity against the estate.

In support of the rule announced, Story on Partner. ship, § 362, note 3, is cited. In a later case (Lewis v. United States, 92 U. S. 622), Nelson v. Hill is cited with

In Camp v. Grant, 21 Conn. 41, the Supreme Court of Connecticut, in an able opinion, adopt the rule of the courts of England.

In Weyer v. Thornburgh, 15 Ind. 124, the question arose, and the Supreme Court of that State adopt the rule in the language of Story on Partnership, cited supra, and this decision was followed in a number of subsequent cases. Dean v. Phillips, 17 Ind. 406; Hardy v. Overman, 36 id. 549.

In Freeman v. Stewart, 41 Miss. 141, the question arose, and the Supreme Court of that State held in equity all partnership debts are joint and several, and a creditor has the right to proceed in law against the survivor, and an election also to proceed against the

separate estate of the deceased partner, whether the survivor be solvent or not. See also Irby v. Graham, 46 Miss. 428, where the English rule is fully approved. The same doctrine has been adopted in Vermont, in Washburn v. Bank of Bellow's Falls, 19 Vt. 278. In Tennessee, in Saunders v. Wilder, 2 Head, 579. In Arkansas, in McLain v. Carson, 4 Ark. 164. In New Jersey, in Wisham v. Lippincott, 1 Stockt. Eq. 353. In Alabama, in Travis v. Tartt, 8 Ala. 577. In Florida, in Fileyau v. Laverty, 3 Fla. 72. In Texas, in Gant v. Reed, 24 Texas, 46. In New Hampshire, in Bowker v. Smith, 48 N. H. 111. In New York and Georgia a contrary rule has been adopted, as will be found in the following cases: Trustees v. Lawrence, 11 Paige, 80; Voorhis v. Childs, 17 N. Y. 354; Bennett v. Woolford, 15 Ga. 213. Upon an examination of the New York cases, it appears that the rule there adopted was supposed to be predicated on the old English cases, and when the courts of England established the doctrine which is laid down as the law in Devaynes v. Noble, and Wilkinson v. Henderson, supra, the New York courts refused to follow the English rule, but adhered to what was supposed to be the law in England as declared in that court prior to that time. Georgia seems to follow the New York rule.

In a late case in Wisconsin (Sherman v. Kreul, 42 Wis. 33) the Supreme Court say: "We are disposed to adopt the New York rule, that in order to recover against the administrators the plaintiff should allege and show that the surviving partner is insolvent." It is also claimed by appellant that the New York rule has been adopted in North and South Carolina, Ohio and Pennsylvania; but without stopping to determine precisely what the rule of the courts of these States may be, we are satisfied that the decided weight of authority is in harmony with the rule adopted in this State, and we are not inclined to change the rule heretofore adopted in this State, and follow the doctrine established by the courts of New York and Georgia, although we fully recognize the great ability of those

courts.

It is also claimed that Silverman v. Chase is in conflict with Moline Water Power and Manf. Co. v. Webster, 26 Ill. 233, and Pahlman v. Graves, id. 405. This position is, in our judgment, based upon a misapprehension of those cases. In those cases there was a controversy between partnership and individual creditors, and the principle of marshaling assets was applied, as it should have been. Where there are individual creditors and partnership creditors, there is no doubt in regard to the law that all individual creditors have a prior claim against the individual assets, and partnership creditors have a prior claim against firm assets, and an individual creditor would have the right to insist that no part of the separate assets should be taken and applied in payment of firm debts until all separate debts had been paid in full. This familiar rule was applied in the two cases referred to, and also in the case of Ladd v. Griswold, 4 Gilm. 25. But there is no contest between individual and partnership creditors here, and hence the doctrine of marshaling assets does not apply. In this case no claims had been presented or allowed against the estate of any character, except the one in controversy, and no individual creditor is resisting the allowance of the claim.

But independent of the authorities, we are satisfied that the rule holding the estate of a deceased partner primarily liable in equity, is sound in principle. Doggett, in his life time, was individually liable for his debt, and if he had been sued, and a judgment obtained against him, any of his individual property would have been liable to be taken and sold in satisfaction of the debt. It is true, if he had been sued at law in his life-time, it would have been necessary to join

his partners as defendants in the action; but after judgment, it was not necessary to exhaust the partnership assets before individual property could be taken, but the creditor could resort to such property in the first instance, if he saw proper. Did the death of Doggett in any manner change the liability which existed on this contract before his death? We think not. The liability continued as before, but the remedy to enforce that liability was changed from a court of law to a court exercising equitable powers. Before his death the liability could only be enforced by a joint action against Doggett and his partners; after his death the liability continued, but could only be enforced in the Probate Court, which in the allowance of claims exercises equitable powers. The death of a debtor may extinguish a legal remedy on a joint contract, but we are not aware that it has ever been held that the death of a debtor could extinguish the debt or discharge the estate of the deceased.

In conclusion, we are satisfied, under the facts as disclosed by this record, appellee's claim was a proper one to be allowed against the estate of the deceased, and that it was properly allowed by the Probate Court.

The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.

UNITED STATES CIRCUIT COURT ABSTRACT.*

FRAUD-ANTICIPATING--EQUITY—FORGED MARRIAGE CONTRACT.-Courts of equity may inquire into and annul a forged or fraudulent instrument of writing claimed to be a contract of marriage before it is sought to be put into effect, in order to disarm the fraudulent beneficiary of a dangerous power that might hereafter be exerted to the detriment of innocent parties. We think this case is within the rule that is often laid down on this subject. Story in his work on Equity Juris., $700, after speaking of various instruments that may be used for fraudulent or improper purposes, and which may be canceled by a court of equity on the ground of fraud, says: "If it is a mere written agreement, solemn or otherwise, still while it exists it is always liable to be applied to improper purposes, and it may be litigated at a distance of time when the proper evidence to repel the claim may be lost or obscured, or when the other party may be disabled from contesting its validity with as much ability and force as he can contest it at the present time." Story says further, in section 701: "The whole doctrine of courts of equity on this subject is referable to the general jurisdiction which it exercises in favor of a party quia timet. It is not confined to cases where the instrument, having been executed, is void upon grounds of law and equity, but it is applied, even in cases of forged instruments which may be decreed to be given up without any prior trial at law, on the point of forg ery." If this instrument is not void upon its face, then its validity depends upon testimony aliunde, and testimony which rests wholly in parol, which is liable at any time to be wholly lost, or placed beyond the reach of the parties injured by the fraud. In case of the death of complainant, the contract, and the means of enforcing it, honest or otherwise, would be wholly in the control of the alleged forger and fraudulent claimant. She would be mistress of the situation, and the heirs of a large estate might be wholly at her mercy. There is a charge of forgery and fraud; and we think the instrument, if a forgery and fraud, ought to be canceled. If there be no remedy in equity for *Appearing in 20 Federal Reporter.

such a wrong as is charged, then the law is indeed impotent to protect the community against frauds of the most far-reaching and astounding character. If there is no precedent for a case upon the exact state of facts disclosed by the bill, it must be because no instance exactly like it has ever before arisen. The principle however is established, and the occasion has arisen for making a precedent, if none ever existed before. Cir. Ct., Dist. Cal., March 3, 1884. Sharon v. Hill. Opinion by Sawyer, J.

JURISDICTION-OF FEDERAL COURT -WHEN ATTACHES TRUST ESTATE--TRUSTEE REFUSING TO SUECESTUI QUE TRUST.-(1)The jurisdiction of a court attaches upon the service of process, and the court whose process is first served upon the defendant will retain the cause. Union Mutual Life Ins. Co. v. Chicago, 6 Fed. Rep. 443; Riggs v. Johnson Co., 6 Wall. 196; Union Trust Co. v. Rockford, 6 Biss. 197. (2) A court having gained prior jurisdiction of a cause by the service of its process is not deprived of its jurisdiction by reason of the actual seizure of the property in controversy by the officer of a court having concurrent jurisdiction. To avoid such a result, the broad rule is laid down that the court first invoked will not be interfered with by another court while the jurisdiction is retained. The jurisdiction thus acquired is exclusive, and it is the duty of all other tribunals, both by law and comity, not to interfere with it. Chief Justice Marshall, in the case of Smith v. McIver, 9 Wheat. 532, says that in all cases of concurrent jurisdiction the court which first has possession of the subject must determine it conclusively." This rule the Supreme Court of the United States has approved in several subsequent cases, notably, Buck v. Colbath, 3 Wall. 341; Riggs v. Johnson Co., 6 id. 166. (3) The jurisdiction of a court of the United States to which a cause has been removed from a State court relates back to the time of the original service of process, and the jurisdiction thus acquired is not only prior, but is complete and exclusive over the defendant company's property. Miller v. Tobin, 18 Fed. Rep. 609; Osgood v. Railroad Co., 6 Biss. 330; Armstrong v. Mech. Nat. Bank, id. 524; 12 Chi. Leg. N. 176; Bills v. Railroad Co., 13 Blatchf. 227. (4) The court first gaining jurisdiction of a part of a trust estate is entitled to administer the whole, even though some portion of the property lies within the domain of another court. (5) When the trustees of a mortgage deed, executed for the security of bondholders, refuse to institute proceedings to enforce the security, the bondholders themselves are entitled to prosecute a suit for that purpose. Cir. Ct., D. West Va., 1884. Owens v. Ohio Cent. R. Co. Opinion by Jackson, J.

AGENCY-CONCEALED-RESPONSIBILITY OF PRINCIPAL-RATIFICATION.-(1) A party selling goods to another and taking his individual acceptance therefor, may upon the discovery that the latter was really acting in the interest of and under authority from a third party, hold that third party responsible for payment. (2) A party who, without the authority of another, purchases goods for him, which the other, knowing the purchase has been so made, accepts, becomes thereby an agent, and the other as principal may be required by the seller of the goods to pay the consideration. Cir. Ct., E. D. Wis., Apr. 12, 1884. Pope v. Meadow Spring Distilling Company. Opinion by Dyer, J.

not merely for the amount paid by him for them at the foreclosure sale. The property, as well after foreclosure as before, is held for the benefit of both pledgor and pledgee, and must be disposed of for the benefit of both. The price bid at such sale does not operate as payment upon the debt for which the mortgage was pledged. Brown v. Tyler, 8 Gray, 135; Montague v. Boston & A. R. Co., 124 Mass. 242; Stevens v. Dedham Inst., etc., 129 id. 547; Slee v. Manhattan Co., 1 Paige, 48; Hoyt v. Martense, 16 N. Y. 231; Dalton v. Smith, 86 id. 176; Smith v. Bunting, 86 Penn. St. 116; Jones Pledg., §§ 659, 683. The evident principle upon which these cases were decided is that the assignor or pledgor of the collateral in each instance had an interest in the mortgage which could not be extinguished by a procedure to which he was not a party, and it seems clear that in this respect there can be no distinction between the position of an assignor of notes secured by a mortgage upon real estate, and that of an assignor of notes secured by the pledge of bonds or other like securities. Cir. Ct., D. Ind., Jan. 9, 1884. First Nat. Bk. v. Ohio Falls Locomotive Works. Opinion by Woods, J.

NEBRASKA SUPREME COURT ABSTRACT.

STATUTE OF WITHIN STATUTE-CONTRACT OF LABOR.-M. employed S. to do the carpenter work in and about the construction of certain buildings. S. employed K. to labor for him on said work. K. quit work and stated to M. that he would work no more until he knew where his pay was coming from. M., in reply, told K. that he wanted him to keep on with the work, and that he would see it paid, provided S. did not pay for it, and K. continued to work. Held, that the promise of M. was void under the statute of frauds. In Young v. French, 35 Wis. 116, it is said: "Where the party promising has for his object some benefit and advantage accruing to himself, and on that consideration makes the promise, this distinguishes the case of an original undertaking from one within the statute." And a large majority of the cases which we have examined seem to follow the rule; but none of them are upon a case similar to the one at bar. In fact our attention has not been called to a similar case. In Clapp v. Webb, 52 Wis. 641; 9 N. W. Rep. 796, it is said the Supreme Court of that State has repeatedly decided that "the alleged promise is within the statute unless it was founded upon a new and independent consideration passing between the newly contracting parties." We conclude that if this case is taken out of the statute, it must be by virtue of a new and independent consideration passing between the parties, or by reason of some benefit and advantage accruing to the promisor and that they, on that consideration, made the promise. It is claimed by the plaintiffs in error that the decision in Rose v. O'Linn, 10 Neb. 364, virtually disposes of this case in his favor. Although there is, as we think, a difference between that case and this, as in that a part of the services had been rendered, and it was claimed that the plaintiff in error agreed to " see "the whole bill paid, yet the difference is so slight as not to be material, and the rule laid down in that case must govern this. The defendant in error claims that this case is similar to the case of Fitzgerald v. Morrissey, 14 Neb. 198: and the case of Clopper v. Poland, 12 Neb; 69; and that they are decisive of this. In the first case named, Morrissey had been working for a subcontractor on the grading of a railroad for Fitzgerald. The subcontractor had failed to pay Morrissey, and he, Morrissey, had determined to abandon the work. Fitzgerald, who had a large amount of grading to do, then promised Morrissey, if he would continue

FRAUDS-DEBT OF ANOTHER-WHEN

to work on said grade for him, that in addition to the usual and regular wages, he would pay Morrissey the amount due him from the subcontractor. In consideration of this promise, Morrissey began to work for Fitzgerald. It was claimed by Fitzgerald, that the agreement to pay the amount due from the subcontractor was within the statute of frauds, and void; but it was not found to be so, which was clearly correct. It was a new and independent contract, founded upon a consideration. The amount promised Morrissey for his labor included the amount due him from the contractor. was a direct promise, founded upon a consideration to pay the debt. The case of Clopper v. Poland is based upon the same principle. Morrissey v. Kinsey. Opinion by Reese, J.

[Decided May 27, 1884.]

It

DEED-BOUNDARY-MONUMENTS-PAROL EVIDENCE ESTOPPEL— (1)

—EJECTMENT-EQUITABLE DEFENSE

In an action between others than the original parties to a deed, the intention of the parties to the conveyance cannot be inquired into for the purpose of ascertaining the land sought to be conveyed, if the calls in the deed refer to fixed monuments or points. (2) Where there is a call in a deed which was in fact not intended by the parties, and is unambiguous, the intention of the parties cannot be made to take the place of the call; neither is parol proof competent to locate the land. In McAfferty v. Conover, 7 Ohio St. 104, the Supreme Court of Ohio uses the following language: "But where there is a call in a deed which was in fact not intended by the parties, and is found and is unambiguous, the intention of the parties cannot be made to take the place of the call; for if this could be done, titles and lands would be transferred by the intention of the parties, and not by deed. Effect will be given to the intention of the parties in respect to calls, only when the words of description they employ will admit of it, and are not inconsistent with the intention proved. Further than this, a court of law cannot go; beyond this is the region of equitable jurisdiction under the head of mistake." See also Piercy v. Crandall, 34 Cal. 343: Jackson v. Wendell, 5 Wend. 146; 1 Greenl. Ev. 391. We therefore conclude that the description given in the deed, as between these parties, must stand without explanation or change by parol proof; and that the recording of said deed was not of itself sufficient to give notice of the alleged rights of the plaintiff. Calway v. Malchow, 7 Neb. 287. (3) In an action of ejectment, where an equitable defense is pleaded, and under the allegations of such answer it is shown that the defendant bought the land in question in good faith for a valuable consideration, taking immediate possession thereof, and with the knowledge of the plaintiff made valuable and lasting improvements thereon, the plaintiff taking no steps to notify defendants of his claim, held, that he was estopped to set up his rights as against them. In Kirk v. Hamilton, 102 U. S. 68, it is said: "There is no principle better established in this court, nor опе founded on more solid considerations of equity and public utility, than that which declares that if one man knowingly, though he does it passively, by looking on, suffer another to purchase and expend money on land, under an erroneous opinion of title, without making known his own claim, he shall not afterward be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel." See also Fremont Ferry & Bridge Co. v. Dodge Co., 6 Neb. 25; Roy v. McPherson, 11 Neb. 200; Gillespie v. Sawyer. Opinion by Reese, J.

[Decided May 21, 1884.]

MARRIAGE-DEED FROM HUSBAND TO WIFE-VOID AT LAW-GRANTEE OF WIFE GETS NO TITLE.-At com

mon law a deed from a husband directly to his wife was void in law. 1 Co. Litt. 3a; Moyse v. Gyles, 2 Vern. 385; Beard v. Beard, 3 Atk. 72. The case of Shepherd v. Shepherd, 7 Johns. Ch. 57, is a leading American case, and while it holds that the conveyance in that case would be enforced as an evidence of an equity in favor of the wife, yet the chancellor, in the opinion, states the law the same as the English cases above cited. He says: "The deed from H. S. to the plaintiff was undoubtedly void in law, for the husband cannot make a grant or conveyance directly to his wife during coverture. In equity the courts have frequently refused to lend assistance to such a deed, or to any agreement between them. Thus in Stoit v. Ayloff, 1 Ch. Rep. 33, the husband promised to pay his wife 100 pounds; they separated, and she filed her bill for the sum. But the court would not relieve the plaintiff, because the debt was sixteen years old, and the promise made by a husband to a wife, which the court conceived to be utterly void at law. Again in Moyes v. Gyles, 2 Vern. 385, the husband made a grant or assignment of his interest in a church-lease to his wife. She brought a bill, after his death, to have the defective grant supplied; and the court held the grant to be void in law, and dismissed the bill, as the grant was voluntary and without consideration. So in Beard v. Beard, 3 Atk. 72, the husband, by deed-poll, gave to his wife all of his substance which he then had or might thereafter have. Lork Hardwicke considered the deed-poll to be so far effectual as to be a revocation of a will by which the testator had given all his estate to his brother, yet that it could not take effect as a grant or deed of gift to the wife, because the law will not permit a man to make a grant or conveyance to his wife in his life-time; neither will this court suffer the wife to have the whole of the husband's estate while he is living, for it is not in the nature of a provision, which is all the wife is entitled to." "It is to be observed," continues the chancellor, "that none of these cases were determined strictly and entirely upon the incapacity of the husband to convey to the wife according to the rule of law; and they do not preclude the assertion of a right in a court of equity, under certain circumstances, to assist such a conveyance. The court relied upon the staleness of the demand, in the first case, and upon the want of consideration, in the second, and upon the extravagance of the gift, in the third, as also constituting grounds for the decree; and it is pretty apparent that if the grant in each case had been no more than a suitable provision for the wife, the court would have been inclined to assist it. In Slanning v. Style, 3 P. Wms. 334, Lord Talbot said, that courts of equity have taken notice of, and allowed feme coverts to have, separate interest by their husband's agreement, especially where the rights of creditors did not interfere. And in More v. Ellis, Bunb. 205, articles of agreement executed between husband and wife were held binding without the intervention of trustees. So in Lucas v. Lucas, 1 Atk. 270, Lord Hardwicke admitted, that in chancery, gifts between husband and wife have often been supported, though at law the property is not allowed to pass; and he referred to the case of Mrs. H., and that of Lady Cowper. And in the very modern case of Lady Arundell v. Phipps, 10 Ves. 146, Lord Eldon held that a husband and wife, after marriage, could contract for a bona fide and valuable consideration, for a transfer of property from the husband to the wife, or to trustees for her." And where, in contemplation of a separation and divorce, a husband executed and delivered a conveyance directly to his wife of an undivided hall of certain wild land, and without entry upon the land or applying to any court for relief or aid in the prem ises, seventeen years afterward, she having in the mean time obtained a divorce and remarried, execu

ted a warranty deed of the land to the plaintiff, held, that the same carried no title to the plaintiff, and his petition for partition of said land dismissed. Johnson v. Vandervort. Opinion by Cobb, C. J. [Decided May 28, 1884.]

VERMONT SUPREME COURT ABSTRACT.*

FRAUD-ORDER ON EMPLOYERS-RECEIVING MONEY AFTER GIVING. The defendant, a quarryman, gave an order on O. & Co., his employers, to pay his monthly wages to the plaintiff, for his, defendant's, monthly store bill, and to pay an old debt due the plaintiff. Notice was given to O. & Co. of the order. They refused to accept it, but did however pay the wages to the plaintiff for several months, then notified him that they would do so no longer, and paid directly to the defendant. O. & Co. alone were responsible for the discontinuance of the payments to the plaintiff. Held, that the receiving of his wages by the defendant, although he was then indebted to the plaintiff, did not amount to a tort; and that an action brought upon the theory that the defendant was liable as for a tort could not be maintained. The case is not like Troy v. Aikens, 46 Vt. 55, relied upon by the plaintiff. In that case the defendant misappropriated to his Own use a promissory note issued by the town, and the town was thereby compelled to pay the same. Here the defendant has not misapplied any money or other valuable thing of the plaintiff; and so the element of fraud is lacking. The conclusion we reach does not debar the plaintiff from maintaining an action ex contractu to recover the balance his due. McGuire v. Kiveland. Opinion by Powers, J.

NEGLIGENCE

EVIDENCE IN REBUTTAL-NEW RULES. (1) The plaintiff, while attending the annual fair of the Washington County Agricultural Society, received the injuries complained of by collision with a runaway team, which just prior to the accident was driven by one S. The defendant was one of the marshals of the society; and while clearing the track preparatory to a trial of speed of horses, which was about to begin, he turned S., with his team, off the track. In the act of turning, S. was thrown out of his carriage, the horses broke loose, ran against the plaintiff's carriage, and so caused the injuries. The question being whether the defendant exercised the requisite prudence, or was negligent, the court below charged: Was the defendant guilty of a wrong in the manner of requiring this S. to leave the track? If so, did he do an act which a person thus acting must have adjudged, would in the natural course of events be the natural consequence of that act, to set those horses loose, adrift, into that crowd, and cause them to run away? If not, then there is no recovery." Held error; that the question was not what the defendant, or a person thus acting, might reasonably expect, or adjudge, would result from the act; but that if the defendant negligently turned the team up the bank, off the track, and S. thereby lost control of his team, which broke loose and so caused the damage, without any superior, uncontrollable force, or without the negligence of a responsible agent having intervened, the defendant would be liable; and that this is although the negligent act was committed in the performance of a legal duty. (2) Testimony was admissible to prove all the considerations and circumstances which might legitimately influence the defendant's acts in the removal of S., and what occurred prior to the accident, between S. and the defendant, and S. and the policemen, as that he had been ordered off the *To appear in 56 Vermont Reports.

So,

PARTNERSHIP-ONE PARTNER GIVING FIRM PAPERBURDEN OF PROOF.-The law is well settled that one member of a non-trading partnership has no authority to bind his copartner by a note made by him in the firm name without express authority therefor from his copartner, or when the giving of such instrument is necessary to the carrying on of the partnership business, or is usual in similar partnerships; and the burden is upon the party suing on a note given by one member of such firm to prove such authority or usage. Smith v. Sloan, 37 Wis. 285; Kimbro v. Bullitt, 22 How. 256; Zuel v. Bowen, 78 Ill. 234; Greenslade v. Dower, 7 B. & C. 635; Ulery v. Giurich, 57 Ill. 531; Hunt v. Chapin, 6 Lans. 139. The testimony introduced on the trial of the cause in the District Court does not disclose any such authority, necessity, or usage; and there is nothing in the record which will sustain a conclusion that either existed. Levi v. Latham. Opinion by Reese, J. [Decided May 27, 1884.]

NEVADA SUPREME COURT ABSTRACT.

GARNISHMENT-CLAIM AGAINST ESTATE-NOT SUBJECT TO LEVY.-No order for distribution to creditors having been made, a claim against the estate, although allowed and approved, cannot be garnished in the hands of the executor, or be subject to levy or sale at the instance of a creditor of the party to whom such claim is due. These funds must travel only in the path pointed out by the laws relating to decedents' estates in their various branches, and cannot be directed out of that path without interfering with salutary regulations, and violating some of the most important provisions of the acts of assembly. See also Barnes v. Treat, 7 Mass. 271; Brooks v. Cook, 8 id. 247; Thorn v. Woodruff, 5 Ark. 55; Stout v. La Follette, 64 Ind. 365; J. I. Case T. M. Co. v. Miracle, 54 Wis. 295; S. C., 11 N. W. Rep. 580; Colby v. Coates, 6 Cush. 558; Thayer v. Tyler, 5 Allen, 94; Walch v. Gurley, 2 Hayw. (N. C.) 334; Young v. Young, 2 Hill (S. C.) 425; Curling v. Hyde, 10 Mo. 374; Winchell v. Allen, 1 Conn. 385; Lyons v. Houston, 2 Harr. (Del.) 349; Waite v. Osborne, 11 Me. 185; Wilder v. Bailey, 3 Mass. 289; Marvin v. Hawley, 9 Mo. 382; Hill v. Lacrosse, etc., R. Co., 14 Wis. 291; Dawson v. Holcomb, 1 Ohio, 275. Norton v. Clark. Opinion by Belknap, J. [Decided Feb. 12, 1884.]

EASEMENT-OBSTRUCTING RIGHT OF WAY-FORCIBLY REMOVING.—(1) An easement does not divest the owner of the soil of the possession thereof, nor does the right of way confer any possession on parties using the easement as against such owner. Read v. Leeds, 19 Conn. 187; and see Wood v. Truckee Turnpike Co., 24 Cal. 487; San Francisco v. Calderwood, 31 id. 589. (2) Where the plaintiffs are in possession of a piece of land, over which the defendants have a right of way, and the plaintiffs inclose the same, the defendants, while they have a remedy in law for the obstruction, have no right to enter forcibly to remove it and to detain the possession with strong hand. People v. Leonard, 11 Johns. 509; Mitchell v. Davis, 23 Cal. 384; Porter v. Cass, 7 How. Pr. 445; People v. Van Nostrand, 9 Wend. 53; Voll v. Hollis, 60 Cal. 573; Allen v. Tobias, 77 Ill. 171; Krevet v. Meyer, 24 Mo. 110; Harris v. Turner, 46 id. 439; Bartlett v. Draper, 23 id. 408; 2 Bish. Crim. Law (7th ed.), § 490. (3) The exclusion of evidence which merely tended to prove the use of the easement by the defendants and their tenants, the allegation of which is not denied, is neither erroneous