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sented the claim to the Probate Court, to be allowed whether the survivors be insolvent or bankrupt or against the estate of deceased. The Probate Court, not.” The same doctrine, but in different languopon the evidence introduced, allowed the claim, and age, is declared by Story in his work on Equity Jur., the executrix appealed to the Circuit Court, where a $ 676. second trial was had, resulting in a judgment against Collyer on Partnership, $ 580, declares the law in the the estate. An appeal was then taken to the Appellate following language : "It is now established beyond conCourt, where the judgment of the Circuit Court was troversy, that in the consideration of courts of equity, affirmed, and this record is brought here by the exec- a partnership debt is several as well as joint, and that utrix for the purpose of reversing the judgment of the upon the death of a partner a joint creditor has a right Appellate ('ourt.
in equity to proceed immediately against the represenIt is insisted by appellant that a partnership demand tative of the deceased partner for payment out of his cannot be allowed against the individual estate of a separate estate, without reference to the question deceased partner until the legal remedy against the whether the joint estate be solvent or insolvent, or to partnership assets and surviving partners has been ex- the state of accounts amongst the partners." hausted.
Dixon on Partnership, 113, says: “When a liability In Mason v. Tiffany, 45 Ill. 392, which was a proceed- exists the creditor may, at his option, either pursue ing in chancery, by a creditor of a firm, to enforce pay- his legal remedy against the survivor, or resort in ment of a firin debt against the estate of Tiffany, a de- equity to the estate of the deceased, and this altogether ceased member of the firm, it was held that every part- without regard to the state of the accounts between bership debt being joint and several, it follows neces- the partners themselves, or to the ability of the survisarily, that resort may be had, in the first instance, for vor to pay." the debt, to the surviving partners, or to the assets of Lindley on Partnership, 1053, says: “Whatever the deceased partner. In the decision of the case it is doubt there may formerly have been upon the subject, said: “If it was a fact that the surviving partners re- it was clearly settled before the judicature acts, that a mained solvent for a long time before the assignment, creditor of the firm could proceed against the estate and the assigned assets were sufficient to pay this of the deceased partner without first having recourse claim, still these did not require the complainant to to the surviving partners, and without reference to press his claim against them, the estate of the de- the state of the accounts between them and the deceased partner being equally a fund on which he had a ceased.” See also Parsons on Mercantile Law, 192; right to rely.” This case seems to establish the doc- Adams Eq. 173; Smith on Mercan. Law, 48; 3 Kent trine, in plain words, that a creditor, in equity, has the Com. 63, 64, and note. right, where he holds a claim against a firm, one mem- From the citations made, it would seem that the ber of wbich has died, to proceed against the estate of Jaw as declared in Mason v. Tiffany, and Silverman v. the deceased member or the surviving partners, as he Chase, supra, is fully sustained, at least by text writmay elect.
ers of high authority, both in this country and in EngIn Silverman v. Chase, 90 Ill. 37, the same question land. But it will not be necessary to rely alone on the arose, and following the doctrine of the case last cited, text books for a solution of the question, as the decisit was said: “A partnership debt is joint and several, ions in Englaud and many of the States are in harand the creditor has the right to elect whether he will mony with the rule declared in the text books. proceed against the assets in the hands of the surviv. In Eugland, as early as 1816, in Devaynes v. Noble, 1 ing partner or against the estate of the deceased part- | Mer. 529, it was decided, that in equity parinership ner, as held by this court in Mason v. Tiffany, 45 Ill. debts are joint and several, and a creditor holding a 392. Sor will the laches of the creditor in following firm debt could resort to the estate of the deceased the assets of the firm preclude a recovery. The credi-partner for payment, without showing the insolvency tor has the right to proceed against the estate at any of the survivor. The rule adopted in the case cited time before the Statute of Limitations has run, aud a was subsequently adhered to and followed in Wilkinfailure to pursue the partnership assets cannot be re- son v. Henderson, 1 M. & K. 582, and since the decision lied upon as a defense when suit is brought against the of these cases the doctrine there announced has been estate."
regarded as the settled law of England. These two cases would seem to be conclusive of the In Nelson v. Hill, 5 How. 127, the Supreme Court of question presented, so far at least as this court is con- the United States held that the creditor of a partnercerned, as they, in terms, decide the same question in- ship may, at bis option, proceed at law against the surFolved in the record before us, and it would not be viving partner, or go in the first instance into equity deemed necessary to say any thing more on the ques- against the representatives of the deceased partner; tion were it not for the fact that it is claimed that that it was not necessary to exhaust his remedy at law these cases are in conflict with prior decisions of this against the surviviug partner before proceeding in court, and the doctrine therein announced is not equity against the estate. sound and in harmony with the curreut of authority In support of the rule announced, Story on Partner. on the subject. We have therefore concluded to briefly ship, $ 362, note 3, is cited. In a later case (Lewis v. refer to some of the authorities which have a bearing United States, 92 U. S. 622), Nelson v. Hill is cited with ou the question, with the view of showing that the de- approval. cisions of this court are fully sustained by the weight Iu Camp v. Grant, 21 Conn.41, the Supreme Court of
Connecticut, in an able opinion, adopt the rule of the Story on Partnership, $ 362, says: “The doctrine courts of England. formerly held upon this subject seeins to have been, In Weyer v. Thornburgh, 15 Ind. 124, the question that the joint creditors had no claim whatsoever in arose, and the Supreme Court of that State adopt the equity against the estate of the deceased partner, ex- rule in the language of Story on Partnership, cited cept when the surviving partvers were at the time, or supra,
and this decision was followed in a number of subsequently became insolvent or bankrupt. But that subsequent cases. Deun v. Phillips, 17 Ind. 406; Hardy doctrine has been since overturned, and it is now held v. Overman, 36 id. 519. that in equity all partnership debts are to be deemed In Freeman v. Stewart, 41 Miss. 141, the question juint and several, and consequently the joint credi- arose, and the Supreme Court of that State held in tors have, in all cases, the right to proceed at law equity all partnership debts are joint and several, and agaiust the survivors, and an election also to proceed a creditor has the right to proceed in law against the in equity against the estate of a deceased partver, survivor, and an election also to proceed against the
separate estate of the deceased partner, whether the his partners as defendants in the action; but after survivor be solvent or not. See also Irby v. Graham, 46 judgment, it was not necessary to exhaust the partnerMiss. 428, where the English rule is fully approved. ship assets before individual property could be taken, The same doctrine has been adopted in Vermont, in but the creditor could resort to such property in the Washburn v. Bank of Bellow's Falls, 19 Vt. 278. Iu first instance, if he saw proper. Did the death of DogTennessee, in Saunders v. Wilder, 2 Head, 579. In Ar- gett in any manner change the liability which existed kansas, in McLain v. Carson, 4 Ark. 164. In New on :bis contract before his death? We think not. The Jersey, in Wisham v. Lippincolt, 1 Stockt. Eq. 353. In liability coutinued as before, but the remedy to en: Alabama, in Travis v. Tartt, 8 Ala. 577. In Florida, in force that liability was changed from a court of law to Fileyau v. Luverty, 3 Fla. 72. In Texas, in Gant v. Reed, a court exercising equitable powers. Before his death 24 Texas, 46. In New Hampshire, iu Bowker v. Smith, the liability could only be enforced by a joint action 48 N. H. 111. In New York and Georgia a contrary against Doggett and his partners; after his death the rule has been adopted, as will be found in the follow- liability continued, but could only be enforced in the ing cases: Trustees v. Lawrence, 11 Paige, 80; Voorhis Probate Court, which in the allowance of claims exerv. Childs, 17 N. Y. 354; Bennett v. Woolford, 15 Ga. cises equitable powers. The death of a debtor may ex213. Upon an examination of the New York cases, it tinguish a legal remedy on a joint contract, but we are appears that the rule there adopted was supposed to not aware that it has ever heen held that the death of be predicated on the old English cases, and when the a debtor could extinguish the debt or discharge the escourts of England established the doctrine which is tate of the deceased. laid down as the law in Devaynes v. Noble, and Wilk- In conclusion, we are satisfied, under the facts as disinson v. Henderson, supra, the New York courts re- closed by this record, appellee's claim was a proper fused to follow the English rule, but adhered to what one to be allowed agaiust the estate of the deceased, was supposed to be the law in England as declared in and that it was properly allowed by the Probate that court prior to that time. Georgia seems to follow Court. the New York rule.
The judgment of the Appellate Court will therefore In a late case in Wisconsin (Sherman v. Kreul, 42 bo affirmed. Wis. 33) the Supreme Court say: “We are disposed
Judgment affirmed. 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
UNITED STATES CIRCUIT COURT ABis also claimed by appellant that the New York rule
STRACT.* 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
FRAUD—ANTICIPATING--EQUITY-FORGED MARRIAGE may be, we are satisfied that the decided weight of au
CONTRACT.—Courts of equity may inquire into and anthority is in harmony with the rule adopted in this
nul a forged or frauduleut instrument of writing State, and we are not inclined to change the rule here
claimed to be a contract of marriage before it is sought tofore adopted in this State, and follow the doctrine
to be put into effect, in order to disarm the fraudulent established by the courts of New York and Georgia,
beneficiary of a dangerous power that might hereafter although we fully recognize the great ability of those
be exerted to the detriment of innocent parties. We courts.
think this case is within tbe rule that is often laid It is also claimed that Silverman v. Chase is in con
down on this subject. Story in his work on Equity flict with Moline Water Power and Manf. Co. v. Web
Juris., $ 700, after speaking of various instruments that ster, 26 III. 233, and Pahlman v. Graves, id. 405. This
may be used for fraudulent or improper purposes, and position is, in our judgment, based upon a misappre
which may be canceled by a court of equity on the hension of those cases. In those cases there was a con
ground of fraud, says: “If it is a mere written agree
ment, solemn or otherwise, still while it exists it is troversy between partnership and individual creditors, and the principle of marshaling assets was ap
always liable to be applied to improper purposes, and plied, as it should have been. Where there are indi
it may be litigated at a distance of time when the vidual creditors and partnership creditors, there is no
proper evidence to repel the claim may be lost or obdoubt in regard to the law that all individual creditors
scured, or when the other party may be disabled from have a prior claim against the individual assets, and
contesting its validity with as much ability and force partnership creditors have a prior claim against firm
as he can contest it at the present time.” Story says assets, and an iudividual creditor would have the right
further, in section 701 : “The whole dootrine of to insist that no part of the separate assets should be
courts of equity on this subject is referable to the gentaken and applied in payment of firm debts until all
eral jurisdiction which it exercises in favor of a party separate debts had been paid in full. This familiar
quia timet. It is not confined to cases where the inrule was applied in the two cases referred to, and also
strument, having been executed, is void upon grounds in the case of Ladd v. Griswold, 4 Gilm. 25. But there
of law and equity, but it is applied, even in cases of is no contest between individual and partnership cred
forged instruments which may be decreed to be given itors here, and hence the doctrine of marshaling as
up without any prior trial at law, on the point of forg sets does not apply. In this case no claims had
ery." If this instrument is not void upon its face, been presented or allowed against the estate of any
then its validity depends upon testimony aliunde, aud character, except the one in controversy, and no in
testimony which rests wholly in parol, which is liable dividual creditor is resisting the allowance of the
at any time to be wholly lost, or placed beyond the claim.
reach of the parties injured by the fraud. In case of But independent of the authorities, we are satisfied
the death of complainant, the contract, and the means that the rule holding the estate of a deceased partner
of enforcing it, honest or otherwise, would be wholly primarily liable in equity, is sound in principle. Dog
in the control of the alleged forger and fraudulent gett, in his life time, was individually liable for his
claimant. She would be mistress of the situation, and debt, and if he had been sued, and a judgment ob
the heirs of a large estate might be wholly at ber tamed against him, any of his individual property
mercy. There is a charge of forgery and fraud; and would have been liable to be taken and sold in satisfac
we think the instrument, if a forgery and fraud, oagbt tion of the debt. It is true, if he had been sued at law
to be canceled. If there be no remedy in equity for in his life-time, it would have been necessary to join
* Appearing in 20 Federal Reporter.
such a wrong as is charged, then the law is indeed not merely for the amount paid by him for them at the impotent to protect the community against frauds of foreclosure sale. The property, as well after foreclosthe most far-reaching and astounding character. If ure as before, is held for the benefit of both pledgor there is no precedent for a case upon the exact state of and pledgee, and must be disposed of for the benefit of facts disclosed by the bill, it must be because no in- both. The price bid at such sale does not operate as stance exactly like it has ever before arisen. The prin-payment upon the debt for which the mortgage was ciple however is established, and the occasion has pledged. Brown v. Tyler, 8 Gray, 135; Montague v. arisen for making a precedent, if none ever existed Boston & A. R. Co., 124 Mars. 242; Stevens v. Dedham before. Cir. Ct., Dist. Cal., March 3, 1884. Sharon v. Inst., etc., 129 id. 547; Slee v. Manhattan Co., 1 Paige, Hill. Opinion by Sawyer, J.
48; Hoyt v. Martense, 16 N. Y. 231; Dalton v. Smith, JURISDICTION--OF FEDERAL COURT
86 id. 176; Smith v. Bunting, 86 Peny. St. 116;
WHEY ATTACHES-TRUST ESTATE--TRUSTEE REFUSING TO SUE
Jones Pledg., SS 059, 683. The evident principle upon
which these cases were decided is that the assignor or CESTUI QUE TRUST.-(1)The jurisdiction of a court attaches upon the service of process, and the court whose
pledgor of the collateral in each instance had an interprocess is first served upon the defendant will retain
est in the mortgage which could not be extinguished the cause.
Union Mutual Life Ins. Co. v. Chicago, 6 by a procedure to which he was not a party, and it Fed. Rep. 443; Riggs v. Johnson Co., 6 Wall. 196;
seems clear that in this respect there can be no distincUnion Trust Co. v. Rockford, 6 Biss. 197. (2) A court
tion between the position of an assignor of notes se
cured by a mortgage upon real estate, and that of an having gained prior jurisdiction of a cause by the service of its process is not deprived of its jurisdiction
assignor of notes secured by the pledge of bonds or
other like securities. Cir. Ct., D. Ind., Jan. 9, 1884. by reason of the actual seizure of the property in controversy by the officer of a court having concurrent
First Nat. Bk. v. Ohio Falls Locomotive Works. Opin
ion by Woods, J. 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 NEBRASKA SUPREME COURT ABSTRACT. is retained. The jurisdiction thus acquired is exclusive, and it is the duty of all other tribunals, both by STATUTE OF FRAUDS-DEBT OF ANOTHER WHEN law and comity, not to interfere with it. Chief Jus- WITHIN STATUTE-CONTRACT OF LABOR.-M. employed tice Marshall, in the case of Smith v. McIver, 9 Wheat. S. to do the carpenter work in and about the construo532, says “that in all cases of concurrent jurisdiction the tion of certain buildings. S. employed K. to labor for court which first has possession of the subject must de- him on said work. K. quit work and stated to M, that termine it conclusively." This rule the Supreme Court he would work no more until he knew where his pay of the United States has approved in several subsequent
was coming from. M., in reply, told K. that he wanted cases, notably, Buck v. Colbath, 3 Wall. 341; Riggs v. him to keep on with the work, and that he would see Johnson Co., 6 id. 166. (3) The jurisdiction of a court it paid, provided 8. did not pay for it, and K. conof the United States to which a cause has been re- tinued to work. Held, that the promise of M. was mored from a State court relates back to the time of void under the statute of frauds. In Young v. French, the original service of process, and the jurisdiction
35 Wis. 116, it is said: “Where the party promising thus acquired is not only prior, but is complete and has for his object some benefit and advantage accruing exclusive orer the defendant company's property.
to himself, and on that consideration makes the promMiller v. Tobin, 18 Fed. Rep. 609; Osgood v. Railroad
ise, this distinguishes the case of an original underCo., 6 Biss. 330; Armstrong v. Mech. Nat. Bank, id. taking from ove within the statute." And a large 524; 12 Chi. Leg. N. 176; Bills v. Railroad Co., 13 majority of the cases which we have examined seem Blatchf. 227. (4) The court first gaining jurisdiction of
to follow the rule; but none of them are upon a case a part of a trust estate is entitled to administer the similar to the one at bar. In fact our attention has whole, even though some portion of the property lies not been called to a similar case. In Clapp v. Webb, within the domain of another court. (5) When the 52 Wis. 641; 9 N. W. Rep. 796, it is said the Supreme trustees of a mortgage deed, executed for the security Court of that State has repeatedly decided that "the of bondholders, refuse to institute proceedings to en- alleged promise is within the statute unless it was force the security, the bondholders themselves are en- founded upon a new and independent consideration titled to prosecute a suit for that purpose. Cir. Ct., passing between the newly contracting parties." We D. West Va., 1884. Owens v. Ohio Cent. R. Co. Opin- conclude that if this case is taken out of the statute, it ion by Jackson, J.
must be by virtue of a new and independent considerAGENCY-CONCEALED-RESPONSIBILITY OF PRINCI
ation passing between the parties, or by reason of
some benefit and advantage accruing to the promisor PAL-RATIFICATION.-(1) d party selling goods to
and that they, on that consideration, made the promanother and taking his individual acceptance therefor,
ise. It is claimed by the plaintiffs in error that may upon the discovery that the latter was really act
the decision in Rose v. O'Lim, 10 Neb. 364, ing in the interest of and under authority from a third
virtually disposes of this
in his favor. party, hold that third party responsible for payment.
Although there is, as we think, a difference between (?) A party who, without the authority of another, purchases goods for him, which the other, knowing
that case and this, as in that a part of the services bad the purchase has been so made, 'accepts, becomes
been rendered, and it was claimed that the plaintiff in
error agreed to "see” the whole bill paid, yet the difthereby an agent, and the other as principal may be
ference is so slight as not to be material, and the rule required by the seller of the goods to pay the consideration. Cir. Ct., E. D. Wis., Apr. 12, 1884. Pope v.
laid down in that case must govern this. The defendMeadow Spring Distilling Company.
ant in error claims that this case is similar to the case Opinion by of Fitzgerald Morrissey, 14 Neb.
and the case of Clopper v. Poland, 12 Neb; 69; PLEDGE-MORTGAGE BONDS-ASSIGNEE-FORECLOS- and that they
decisive of this. In URE-MUST ACCOUNT.
Where the pledgee of mort- the first case named, Morrissey had been working for a gage bonds assigns them as collateral security for a subcontractor on the grading of a railroad for Fitzgerdebt of his own, and the assignee, foreclosing against ald. The subcontractor had failed to pay Morrissey, the original pledgor without joining the assignor as a and he, Morrissey, had determined to abandon the party, buys in the bonds himself, he is bound to ac- work. Fitzgerald, who had a large amount of grading count to the assignor for the bonds or their value, and to do, then promised Morrissey, if he would continue
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 tbe 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. It 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, 1881.]
DEED-BOUNDARY-MONUMENTS-PAROL EVIDENCE -EJECTMENT-EQUITABLE DEFENSE — ESTOPPEL- (1) 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 camot 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 mot 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 Greeul. 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 mot of itself sufficient to give notice of the alleged rights of the plaintiff. Calway V. Malchow, ņ 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 kuowledge 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. Ip Kirk v. Hamilton, 102 U. S. 68, it is said: “There is no principle better established in this court, nor 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. Iu 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 roid at law. Again in Moses 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 hare 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 husbaud, by deed-poll, gave to his wife all of his substance which he then had or might thereafter have. Lork Hardwicke cousidered the deed-poll to be so far effectual as to be a rerocation 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 bis 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 rigbt 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 corerts 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 wise were held biuding 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 busband 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 bis wife of an undisided hall of certain wild land, and without entry upon the land or applying to any court for relief or uid in the premo ises, seventeen years afterward, she baving 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 1. Vandervort. Opinion by Jobb, C. J. (Decided May 28, 1884.]
VERMONT SUPREME COURT ABSTRACT.*
track once before. Stevens v. Dudley. Opinion by Ross, J.
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. 2:34; 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.)
NEV ADA SUPREME COURT ABSTRACT.
FRAUD-ORDER ON EMPLOYERS-RECEIVING MONEY AFTER GIVING. The defendant, quarryman, gave an order on 0. & 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 0. & 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. 0. & 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 theu 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 bis own
promissory note issued by the town, and the town was thereby coin pelled 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 defeudant 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 80, although the negligent act was committed in the perfortnauce 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 8., and what occurred prior to the accident, between S. and the defendant, and S.
as that he had beeu ordered off the *To appear in 56 Vermont Reports.
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. y. Miracle, 64 Wis. 295; $. 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. Clurk. Opinion by Belknap, J. [Decided Feb. 12, 1881.]
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 band. 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. Turper, 46 id. 439; Bartlett v. Draper, 23 id. 408; 2 Bish. Crim. Law (7th ed.), S 490. (3) The exclusion of evidence wbich 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
and the policemen,