forts and her credit are her husband's since the act of 1848 as before. What she may be said to acquire as the result of her skill and industry, or on her merely personal credit, accrues to the husband, and as to creditors is to be taken as his. Raybold v. Ray bold, 8 Harris, 311; Bucher v. Ream, 18 P. F. S. 421. Goods purchased by a married woman, on her own credit, are not her separate property (Robinson v. Wallace, 3 Wr. 133); her credit is nothing in the eyes of the law; when she does contract, the law esteems her the agent of her husband. Heugh v. Jones, 8 Casey, 432; Hallowell v. Horter, 11 id. 375. A married woman must have a separate estate to protect her purchase upon credit; an estate available and proportionate to the credit it supports. The purchase must in fact be made, not upon her credit, but upon the credit of her separate estate, upon her ability to pay out of her own funds. Gault v. Saffin, 8 Wr. 307. The ownership of the corpus of an estate, real or personal, gives title to its incomes and profits. The title to lands gives title to its products, no matter whose labor may have been expended in the production. Rush v. Vought, 5 P. F. S. 442; Musser v. Gardner, 16 id. 247. But a married woman cannot acquire title to land upon the credit of its after production. Nor to any property or business upon its prospective profits. The production and profits are in general the results of the labor of the husband and wife, or their children, and whilst creditors have no claim on the husband's labor or that of his family as such, yet when that labor acquires title to property they may have a claim upon the property thus acquired. Where the estate is hers, the production is hers; the labor expended in realizing incomes cannot affect the title to either. (2) Where a wife claims property as against her husband's creditors she must show affirmatively by clear and full proof that she paid for it with her own separate funds. Keeny v. Good, 9 Harris, 355; Gamber v. Gamber, 6 id. 366. She must make it clearly appear that the means of acquisition were her own, independently of her husbaud. Auble Adm'rs v. Mason, 11 Casey, 262. Leinbach v. Templin. Opinion by Clark, J. (See 14 Week. Notes, 134.)

[Decided May 26, 1884.]

CONTINUING RIGHTS

INJUNCTION.

EASEMENT Where the rights are continuing, or redress can be had only through a multiplicity of suits, or where the wrongful acts may become the foundation of an adverse right, equity will interfere to restrain the invasion of such rights. It is unnecessary that rights set up in the bill should be established at law where the bill is demurred to; the demurrer admits the rights. A., the owner of land, averring that he had a right by grant to have the water from a certain creek run at certain times to his land through races on the land of B., filed a bill in equity praying for an injunction to restrain B. from obstructing the flow of water through said races. On demurrer to the bill, held, that a court of equity would take jurisdiction. The case of Scheetz's Appeal, 11 Casey, 88, is in point. In this case there was a bill praying for an injunction to prevent the defendant from interfering with the plaintiff's right to enter upon, clean and clear from obstructions a stream called Sandy Run, flowing through the land of the defendant, to the use of which the plaintiff had a prescriptive right for the purpose of driving the machinery of his grist mill. The bill was sustained and the injunction granted. In the opinion of this court, delivered by Mr. Justice Thompson, it was said that in a case like this damages at law would be wholly inadequate to the vindication of such a right, and that successive suits for successive interferences, instead of redressing the wrong, would in the end be worse than the wrong itself. The learned justice also

calls attention to the fact that equity will interfere to prevent acts of trespass and nuisance, where redress can be had only through a multiplicity of suits, or where the wrongful acts may become the foundation of au adverse right, such as the diversion of water. On similar principles, equity will interfere to compel the restoration of a violated right, as the closing of windows and other openings left in a party wall. Vollmer's Appeal, 11 P.F. S.118, and Milne's Appeal,11 W. Notes,330. It is true, as was said in Rhea v. Forsyth,1 Wr. 503, a court of equity will not ordinarily interfere to prevent the disturbance of an alleged easement when the right of the complainant is doubtful or seriously disputed, until he has established his claim by an action at law. But even in such case the court may retain the bill until the plaintiff has had time to settle such right in a court of common law; and if in the meantime it appears to be necessary, the defendant may be enjoined from meddling with the easement; in other words, the chancellor may keep things in statu quo until he is in a position to make a final decree. Bilting's Appeal. Opinion by Gordon, J.

KANSAS SUPREME COURT ABSTRACT.*

DEED-BLANK GRANTEE-TITLE TO GROWING CROPS. -Where C. in good faith purchases land from S., and afterward S. delivers to C. a deed of conveyance for the land completely executed by V., who was in fact the owner of the land, and C. in good faith accepts the deed, having no notice that the deed had been originally executed to a blank grantee, and having no notice of any agreement between S. and V. which might limit the effect of the deed, and S. is not the agent of either C. or V., but acts for himself, and no question is at any time raised with regard to the validity of the deed as a conveyance of the land, and V. delivers the possession of the land to C. without questioning C.'s title thereto or to any thing thereon, but afterward V. claims that he is entitled to the crops growing on the land by virtue of a parol agreement with S., held, that the deed will not only convey to C. the land, but it will also convey to him all the crops growing thereon, although it may be that V. when he executed the deed believed that he was executing the same to S., and although in fact he executed the deed to a blank grantee, and that S. afterward filled up the blank by inserting the name of C., and although there may have been a parol agreement between V. and S. that the crops growing on the land should continue to be the property of V. Under the circumstances, we think the deed conveyed and transferred all that such a deed would ordinarily convey and transfer. Ayres v. Probasco, 14 Kans. 175; Tucker v. Allen, 16 id. 312; Mc Neil v. Jordan, 28 id. 7; Ort v. Fowler, 31 id. 478. And where a deed is executed for real estate, and no reservation of growing crops is contained in the deed, the growing crops will become the property of the grantee mentioned in the deed. Tiedman on Real Prop., §§ 2, 799, and cases there cited; Smith v. Hague, 25 Kans. 246; Babcock v. Dieter, 30 id. 172. Chapman v. Veach. ⚫ Opinion by Valentine, J. (As to execution of deed in blank, see 56 How. Pr. 38; 14 Am. Rep. 435, note.ED.)

REPLEVIN-WIFE OF ABSCONDING HUSBAND CANNOT MAINTAIN.-Where the husband had a written lease of one hundred and sixty acres of land, most of which he had sowed in fall wheat, and in November, after the wheat had been sowed, he handed his father the lease and said to him, "this lease is yours; I got it for your special benefit;" and soon thereafter the husband abandoned his family, consisting of a wife

*Appearing in 32 Kansas Reports.

and two children, and left the country, going to a distant State; and the father, the next summer, when the wheat was ripe, cut and stacked the same, and while he was threshing it an action of replevin was commenced by the wife of the absent husband to recover possession of the wheat; and thereafter and before the trial, the husband made a written assignment of the lease, dating it as of the time he handed to his father, held, that the wife of the absconding husband has no title to the wheat raised upon the leased land, and is not entitled to maintain an action in her own name to recover possession of any part of it. Spurgeon v. Spurgeon. Opinion by Horton, C. J.

LIBEL AND SLANDER--PLEADING-DENIAL AND JUSTIFICATION.-In an action for slander the defendant may set up the defenses: First, that he did not use the language imputed to him; and second, that such language is true. The two defenses are not inconsistent with each other, and both may be true. Townshend Sland. and Lib., §§ 353, 361. Cole v. Woodson. Opinion by Horton, C. J. (See 2 Am. Rep. 68; 29 Eng. Rep. 313.-ED.)

PAYMENT-CHECK-WHEN NOT.-A check on a bank is not prima facie evidence of the payment of the original debt; and clearly a check drawn in favor of the debtor's agent is not prima facie evidence of the payment of the debt to the creditor, even if the creditor assents that the check shall be so drawn. In order that a check on a bank shall be payment of the original debt, it must be agreed by the parties that it shall be such payment and be taken by the creditor as payment. Edwards Bills and Notes, § 277; Kermeyer v. Newby, 14 Kans. 164; McCoy v. Hazlett, id. 430; Shepard v. Allen, 16 id. 182, 184, bottom of page; Medberry v. Soper, 17 id. 369, 375. Mullins v. Brown. Opinion by Valentine, J. (See 57 N. Y. 641.)

CONSTITUTIONAL LAW

IMPAIRING CONTRACT COUNTY BONDS- CHANGING PLACE OF PAYMENT.

Where the ponds of a county of the State of Kansas are payable upon their face at a particular bank in the city of New York, and such bonds were executed and delivered prior to the passage of the act entitled, “an act to provide for the establishment of a fiscal agency for the State of Kansas in the city of New York, and prescribing the duties of officers in relation thereto," approved March 6, 1874, said act cannot change the place of payment of the bonds of the county; and its provisions requiring the treasurer of the county by which the bonds were executed to remit to the fiscal agency of the State-being a place different from that where the bonds are payable-sufficient moneys for the payment of the bonds at the agency, is unconstitutional and void; the place of payment is a part of the contract, and a law which changes the terms of a contract impairs the same. By the contract the parties have fixed the rights and obligations, and this is regarded by the Constitution. A note or bond payable at a specified place is essentially different from one which is payable generally. Lowe v. Bliss, 24 Ill. 168; Chitty on Bills, 566; Childs v. Laflin, 55 Ill. 159. If a county gives its negotiable bonds to pay certain moneys on or before a specified day at a bank named in the bonds, the place of payment is a part of the contract, and a law which changes the terms of the contract, or releases a part of its obligation, impairs the contract. If the act of 1874 is to be construed as requiring payment of the court-house bonds of Leavenworth county executed before the taking effect of that act, at the fiscal agency of the State in New York, the same being a place different from that stated in the bonds, the act must be held unconstitutional and void, as any law that arbitrarily changes the place of payment of negotiable paper after its execution cannot be upheld,

because it attempts to change the terms of the contract; and the State Legislature can no more change the place of payment of negotiable paper than it can alter any other of the provisions of the contract. Bronson v. Kinzie, 1 How. (U. S.) 311; Bank v. McVeigh, 20 Gratt. 457. If the Legislature of Kansas can make the bonds of Leavenworth county payable at the fiscal agency of the State in New York, when the bonds upon their face are payable at a particular bank in New York city, it has the authority to make them payable at any bank in Leavenworth city. This it cannot do, because such a change would deprive the holders of the bonds of the legal rights contracted when they purchased the same. The changing of the place of payment of negotiable paper already delivered, by an act of the Legislature, is a very different thing from the State passing a law merely changing the remedy upon a contract, which is held not to be liable to any constitutional objection. Bronson v. Kinzie, supra. Dillingham v. Hook. Opinion by Horton, C. J.

LIMITATION-ACKNOWLEDGMENT — SURETY GIVING NEW NOTE NOT.-On October 1, 1875, one G., as surety, signed a promissory note of the amount of $1,822.50, payable one day after date to the order of the bank. On April 17, 1876, G., the said surety, executed his own note to the bank for the full amount of the note upon which he was surety, and thereon the bank wrote across the face of the first note, "Received of G., surety, $1,949.04 in full payment," and the cashier signed his name thereto. This was upon an arrangement and understanding between the surety and the bank that the note of October 1, 1875, should be turned over to the surety solely for the purpose of enabling him to collect from the principal, or from property which it was supposed could be reached as the principal's, the amount of the note or as much thereof as he could; that the surety was to commence suit against the principal for that purpose, turn the amount collected over to the bank to be credited on the note, and assign to it the judgment, if any, obtained against the principal, and be entitled to receive from the bank the new note, and that said new note be taken and held by the bank solely as security that the surety would faithfully perform his part of the agreement. Held, that said new note of the date of April 17, 1876, was not an acknowledgment of an existing liability on the part of the surety for the first note dated October 1, 1875, and was not a promise to pay that note.

Barnes

v. Gragg, 28 Kans. 51, 59; Hanson v. Towle, 19 id. 273; Elder v. Dyer, 26 id. 604. Doggett v. Bell. Opinion by Horton, C. J.

NEGLIGENCE

CARRIER-RESTRICTED LIABILITY ONUS ON PARTY ALLEGING.-A railroad company received merchandise to be transported to a point beyond its own line of railroad, over its own and other lines of railroad connecting with it, and gave to the shippers its receipt stating that the merchandise was shipped "at owner's risk." Held, that this receipt is a special contract limiting the liability of the carrier, and that such connecting lines of railroad are entitled to the benefits of the exemption from liability specified in it, and that neither of the companies owning such connecting lines is liable for damages to the merchandise transported, unless it is shown that such damages arose from the negligence of the company sought to be charged. Whitworth v. Erie R. Co., 87 N. Y. 414; Kansas, etc., R. Co. v. Simpson, 30 Kans. 645. It is well settled that when the liability of the common carrier is limited by a special contract, the carrier is only liable for losses and damages caused by his own negligence, and the burden of proving the negligence is on the party who alleges it. Steamboat Emily v Carney, 5 Kans. 645; Mo. Pac. R. Co. v. Haley, 25 id.

PARTNERSHIP-SALE OF GOOD WILL-INJUNCTION.(1) M., a member of a firm at Kalamazoo, and doing business under the name of Kalamazoo Wagon Company, composed of himself, H., L., and L.'s wife, for an adequate consideration purchased of his partners all of their interest" in the property, assets,

sequent deaths, without issue, passed to their legal heirs. Baker v. McGrew. Opinion by Nash, J.

OF

CORPORATION-ADMISSION BY PLEADING—ESTOPPEL AGENT CANNOT PURCHASE-DAMAGES-FRAUD PARTNER BINDS FIRM.-(1) It is a well-settled rule, that parties are bound by their written admissions made in the progress of a cause as a substitute for proof of any material fact, and cannot repudiate them at pleas ure. The admission of the existence of a corporation by pleading and setting forth the fact comes within the rule, and is binding as between parties to the suit, and in the same suit in which such admission is made. Carradine v. Carradine, 33 Miss. 698; Elwood v. Lannon's Lessee, 27 Md. 200. The dealings of Harper & Co. with the Peckham Iron Company in its corporate name were of such a nature as not to permit a plea by them of nul tiel corporation. In full recognition of the plaintiff as a body corporate, they got possession of the one hundred and eighty tons of iron in question. The transaction they turned largely to their own pecuniary profit and advantage; and in subsequent dealing with the plaintiff, in reference to a purchase of stock in its corporation, they fully recognized its corporate existence and capacity. Under such circumstances, we think that Harper & Co. are estopped to deny the legal existence of the plaintiff as a corporation. Bigelow on Estop. 464; Newburg Petroleum Co. v. Weare, 27 Ohio St. 343; Farmers and Merchants' Ins. Co. v. Needles, 52 Mo. 17; City of St. Louis v. Shields, 62 id. 247. (2) It is a fundamental rule, that an agent employed to sell cannot be a purchaser, unless he is known to his principal to be such; nor is the rule inapplicable or relaxed when the employment is to sell at a fixed price. Ruckman v. Bergholz, 37 N. J. L. 437. The law will not suffer one to earn a profit, or expose him to the temptation of a dereliction of his duty, by allowing him to act at the same time in the double capacity of agent and purchaser. Church v. Marine Ins. Co., 1 Mas. 341. As said by Chancellor Walworth in Van Epps v. Van Epps, 9 Paige, 241, "it is a rule which applies universally to all who come within its principle. (3) Where an agent, by false and fraudulent representations to his principal, obtains possession of his principal's goods and converts them to his own use, exemplary damages may be allowed; and in such a case the jury in estimating the damages may include the plaintiff's reasonable counsel fees as an item of compensation. Roberts v. Mason, 10 Ohio St. 277; Finney v. Smith, 31 id. 534, 535. (4) Fraudulent representations by one partner, in the course of the partnership business and transactions, will bind the firm and create a liability co-extensive therewith.

To appear in 41 Ohio St. Reports.

name and nature, in and to the firm of Kalamazoo Wagon Company," and continued the business under the old name. L. and other parties organized a corporation under the name of Kalamazoo Buggy Company, located their place of business in the immediate vicinity of M., and sent out circulars soliciting business, resembling the circulars in use by him, and thus interfered with and injured his business and trade. Held,

that under the contract of sale M. was entitled to the good will of the business purchased; that L. was guilty of a breach of the contract; and that he and the other members of the corporation should be perpetually enjoined from using the name of Kalamazoo Buggy Company, or the circulars resembling those used by M. in the transaction of their business. Beal

v. Chase, 31 Mich. 490. (2) The decree of the Circuit Court, in addition to enjoining defendants from use of the name of Kalamazoo Buggy Company, and the use of the circulars resembling M.'s circulars, enjoined defendants from receiving mail from the post-office addressed to the Kalamazoo Buggy Company, with a provision requiring M. to deliver to defendants any mail received by him and intended for defendants, or either of them. Held, that this part of the decree was erroneous, and could not be sustained. Myers v. Kalamazoo Buggy Co. Opinion by Cooley, C. J. [Decided Sept. 23, 1884.]

DESERTION - EXTREME

Deser

MARRIAGE-SEPARATION CRUELTY.-Separation is not necessarily desertion. The latter may not arise until long after the former has occurred. Reed v. Reed, Wright, 224; Ahrenfeldt v. Ahrenfeldt, 1 Hoff. Ch. 47; Clement v. Mattison, 3 Rich. 93; Fellows v. Fellows, 31 Me. 342. And when separation and desertion occur at the same time, the guilty party is not always the one who leaves the matrimonial home. St. John v. St. John, Wright, 211; id. 147; 2 Dane Abr. 308; Bish. Mar. & Div., § 514. tion under the statute is the willful abandonment of one party by the other without cause, and against the will of the party abandoned, for the period of two years. If the husband's conduct is so cruel toward his wife that she, cannot live and cohabit with him with safety to her health or without peril to her life, or if she has good reason to believe she cannot, and for such reason she leaves him and abandons his home, she does not thereby commit the crime of desertion. In such case she does not leave her husband or her home in consequence of any willfulness on her part, but is compelled by the cruelty of her husband and against her will so to do. The desertion in such case is upon his part. and not upon hers. He as completely commits the crime of desertion when, by his cruel conversation and conduct, he compels her for safety to leave him and his home, as when he willfully and without cause leaves and abandons her. In all such cases the

husband is guilty of the crime or misconduct he charges against the wife, and of course cannot have a decree. 2 How. St., § 6232. We have examined the testimony in this case with care, and find very many of the averments contained in the answer sustained by the proofs, particularly those relating to the crue,

language and conduct of complainant toward his wife. His parsimoniousness is also quite apparent. The language used by complainant to defendant, so far as the record shows, appears to have been without cause or provocation intolerable among decent people — and clearly, under the decisions of this court, constituting extreme cruelty. Whitmore v. Whitmore, 49 Mich. 417; Palmer v. Palmer, 45 id. 150: Briggs v. Briggs, 20 id. 34; Bennett v. Bennett, 24 id. 482; Goodman v. Goodman, 26 id. 417. The defendant, as shown by the testimony, is a sensitive woman of good taste, culture and refinement. To her such language and treatment is the worst kind of cruelty. She endured it until it not only destroyed the comfort and happiness of her home, but threatened her health, and there was no hope of change. No rule of law or equity would compel her to remain longer with the complainant, and by leaving him she did not incur the penalty of giving her guilty husband cause for divorce. The Circuit Court evidently took this view of the case, and I fully agree with Chief Justice Graves in his remarks in the case of Nicholas v. Nicholas, 50 Mich. 162, when he says the appellate tribunal ought to be fully persuaded that it must have reached a different conclusion had it occupied the position of the court appealed from, and been favored with all the advantages of that court for judging rightly before overruling the decree made. Warner v. Warner. Opinion by Sherwood, J. [Decided Sept. 23, 1884.]

EJECTMENT-INJUNCTION- LIMITATIONS-LACHES. -A man agreed with his son that the son should have a certain piece of property by way of advancement from his estate, and the son took possession of it accordingly. The father executed the deed with the avowed purpose of delivering it to the son, but it was lost. The father however recognized the advancement in his will by referring to it. Ejectment was brought for this land by one who without consideration had obtained from another of the testator's children a deed of whatever interest the latter had in the land. Held, that the son who had occupied and improved it could maintain a bill to enjoin the action, and to clear and confirm his title. His possession and continued occupancy were sufficient notice of his claim, and his case was not barred either by the statute of limitations or by laches. Michie v. Ellair. Opinion by Sherwood, J.

[Decided Sept. 23, 1884.]

MUTUALITY-RAILWAY

IN

CONTRACT-WANT OF JURY-PHYSICIAN'S SERVICES AGENCY. - Contracts cannot arise where there is no mutuality; and certainly not where one person not only had no intention of binding himself, but was not even supposed by the other to be making himself personally liable. A tramp was run over by a locomotive in a railway yard. A surgeon being summoned to help him, telephoned the railway superintendent and asked if he should do so. The superintendent answered "yes." Nothing was said about pay, and in fact the superintendent had no authority to bind the railway company to pay for surgical aid. Held, that there was no contract upon which he was personally liable for it. Whether an agent is personally liable is a question of intention, and not an inference or conclusion drawn by the law (Heald v. Kenworthy, 10 Exch. 739, 743), except in the sense in which the law deduces intention from language and holds parties to the legitimate result of their words and actions. 2 Smith Lead. Cas. 383. We have already commented upon the words and actions relied upon by plaintiff as disclosing a cause of action against the defendant in this case. We have refrained from passing on the question raised by counsel for defendant, that in no case where a contract is made with an agent, which cannot be enforced because of the want of au

thority in the agent to make it, can the action against the agent be upon the contract because treating the defendant as principal, and the language used as applied personally to him, there exists no contract liability for which he is responsible. Buck v. Amidon, 4 Daly, 132; Smith v. Watson, 14 Vt. 332; Crane v. Baudouine, 55 N. Y. 256; Boyd v. Sappington, 4 Watts, 247; Williams v. Brickell, 37 Miss. 682; Woods v. Ayres, 39 Mich. 345. The court should have charged the jury, as requested in defendant's first and second requests, to the effect that defendant never promised to pay the plaintiff for the services and medical attendance and nursing sued for, and their verdict should have been for the defendant. Michigan Col. of Medicine v. Charlesworth. Opinion by Champlin, J. [Decided Sept. 23, 1884.]

STATUTE OF FRAUDS-REAL ESTATE-ORAL EMPLOYMENT OF AGENT TO PURCHASE-COMPENSATION.-An oral agreement to employ an agent to purchase real property and procure a conveyance thereof, and to pay him one-half the profits for which such property may be resold, as compensation for his services, is not within the statute of frauds. That statute (How. St., § 6181) contemplates a transaction between parties contracting with each other as principals, and this was not such a transaction. In this case the plaintiff, as agent, undertook to perform for the defendant certain services, and the defendant undertook to make a compensation therefor, the amount of which should be contingent on the value of the services. It was assumed in Bunnell v. Taintor's Adm'r, 4 Conn. 568, that such a contract was not within the statute, and there are many express adjudications to the same effect. Trowbridge v. Wetherbee, 11 Allen, 361; Fiero v. Fiero, 52 Barb. 288; Hess v. Fox, 10 Wend. 436; Bruce v. Hastings, 41 Vt. 380; Bannon v. Bean, 9 Iowa, 395; Harben v. Congdon, 1 Cold. 221; King v. Hanna, 9 B. Mon. 369; Heyn v. Philips, 37 Cal. 529; Lesley v. Rosson, 39 Miss. 368; Benjamin v. Zell, 100 Penn. St. 33. Our attention has been directed to no cases which are opposed to these. The defendant relies upon a number of decisions by this court which are supposed to have some bearing upon the case, but we fail to perceive their relevancy. Every one of them was a case in which an interest in lands was bargained for, and was to be acquired by one of the parties in pursuance of the terms of the contract. Hillebrands v. Nibbelink, 40 Mich. 646, may be taken as an illustration. The alleged verbal contract was that a father would convey to his son a farm in satisfaction of a certain claim; a contract as plainly within the statute as if the land were to be conveyed for an agreed price in money. Carr v. Leavitt. Opinion by Cooley, C. J. [Decided Sept. 23, 1884.]

AGENCY-AUTHORITY TO RECEIVE PAYMENT. -Presentation of a bill by a merchant's employee does not warrant the debtor thereon in paying it to him, unless it is within the scope of his employment to receive payment; and his mere statement that he is authorized to receive it is not enough, nor is it enough that the bill is in the merchant's handwriting and on one of his bill heads. Kornemann v. Monaghan, 24 Mich. 36; Grover & Baker Sewing Machine Co. v. Polhemus, 34 id. 247; Reynolds v. Continental Ins. Co., 36 id. 131; McDonough v. Heyman, 38 id. 334. Hirskfield v. Waldron. Opinion by Champlin, J. [See 47 Am. Rep. 518; 26 Eng. Rep. 48.-ED.]

[Decided Sept. 23, 1884.]

WILL-LEGACY-INTEREST ON.-As a general rule, interest is payable in money, on the ground of delay in paying the principal, and with respect to legacies it is payable on them from the time they are actually due. There is a distinction in this respect between specific

and general legacies. Specific legacies are considered as severed from the bulk of the estate by operation of the will from the death of the testator, and appropriated for the benefit of the legatee from that period. Consequently interest is computed on specific legacies from the death of the testator, whether the enjoyment of the principal is postponed by the testator to a future period or not. With respect to general legacies the rule is different. There, for convenience, the law, in the absence of statutory regulation, has prescribed the general rule that where no time of payment is named by the testator, and in the absence of any intention to be inferred from the will itself, such general legacies shall be raised and satisfied out of the testator's personal estate at the expiration of one year next after his death, from which period, if the executor omits to pay the principal, the legatees will be entitled to interest, though actual payment within that time may be impracticable. 2 Roper Leg. 1245. This rule was founded on the principle that the assent of the executor to the legacy was essential before the title of the legatee to the legacy became complete or perfect, for without such assent the legatee had no authority to take possession of his legacy. The assent was required of the executor, because the whole personal property of the testator devolved upon the executor. The civil law fixed for the purpose a year from the testator's death as the time when the testator's assent is presumed, and when the legacy is payable. This rule has quite generally been adopted by the English courts. Wood v. Penoyre, 13 Ves. 326; Barrington v. Tristram, 6 id. 345; Clive v Clive, Kay, 600; Bristow v. Bristow, 5 Beav. 289; Child v. Elsworth, 2 De Gex, M. & G. 679; Gibson v. Bott, 7 Ves. 96; Pearson v. Pearson, 1 Schoales & L. 10. In the American courts in the absence of statutes regulating the subject, legacies are regarded as due and payable at the end of the year from the death of the testator. But in those States where statutes or the judge of probate allows a year in which to pay debts and legacies, such legacies are not due until the end of a year from granting letters testamentary, and the interest should be computed from that time. Jones v. Ward, 10 Yerg. 161; Stephenson v. Axson, 1 Bailey Eq. 274; Huston's Appeal, 9 Watts, 473; Graybill v. Warren, 4 Ga. 528; Beal v. Crafton, 5 id. 301; Bradner v. Faulkner, 12 N. Y. 472; Cooke v. Meeker, 36 id. 15. In this State the time within which the debts and legacies are to be paid is usually limited by the probate court, in the first instance, to one year from granting letters testamentary. Such would undoubtedly be the time when the legacy would be payable if the estate had been closed in the ordinary course of administration. Wheeler v. Hathaway. Opinion by Champlin, J. [See 30 Am. Rep. 315; 58 How. Pr. 71.-ED.]

[Decided Sept. 23, 1884.]

CORRESPONDENCE.

CITIZENSHIP OF CHILDREN OF ALIENS BORN IN THE UNITED STATES.

Editor of the Albany Law Journal:

Is it not possible that Mr. George O'Doherty has been a little hasty in his attack upon the undersigned in your issue of the 6th inst.?

In my communication, which appeared in the JOURNAL, November 22d, I cited and referred to so much only of the opinions of Mr. Justice Field and Mr. Justice Miller in respect to the construction of the phrase "subject to its jurisdiction" in the first section of the fourteenth amendment to the Constitution, as seemed

pertinent and appropriate in the connection referred to, viz., the question of citizenship as the result of birth within a given territory. "Persons born on a public vessel of a foreign country" are ruled by the same principle, as to national character, that applies to the children of foreign ambassadors and ministers, to wit, the principle of extraterritoriality, while the exclusion of "persons who, though born or naturalized in the United States, have renounced their allegiance to our government," stands upon independent grounds, and is wholly aside of the point under discussion.

If the limitation announced by Mr. Justice Field in the United States Circuit Court of the Ninth Circuit had been less narrow than stated, the court would have been obliged to hold that Look Tin Sing was not a citizen of the United States. It seems to the undersigned, aside from judicial sanction, that the children of aliens born in the United States are, to use the language of Judge Cooley in another connection, "subject to the jurisdiction of the United States only in a much qualified sense; until they take some steps submitting themselves to the jurisdiction. Nowadays among the majority of States, citizenship is derived from personal, and not from local origin. And it should not seem unreasonable to expect that that construction would be favored by the courts which would reconcile rather than antagonize the almost contemporaneous provisions of the fourteenth amendment and the act of Congress of April 9, 1866, in respect to citizenship by birth. It may be that the words of Mr. Justice Miller in the Slaughter House case are susceptible of a construction different from that attributed to them by the undersigned. But if so, many of your readers will doubtless sympathize with me, in preferring to receive such announcement from the distinguished jurist rather than from Mr. George O'Doherty.

The legislation of the United States declared that children of American parentage born abroad are citizens of the United States. Is it consistent to hold, at the same time, that children of aliens born in this country are ipso facto citizens of the United States? In modern days, and among civilized States, citizenship, as dependent upon birth, has been held to be derived from political rather than from territorial sources. Construing the first section of the fourteenth amendment, the Supreme Court of the United States say, in the case of Elk v. Wilkins, decided at this term, and in the words of Mr. Justice Gray, announcing the decision of a majority of the court: "This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but com pletely subject to their political jurisdiction, and ow ing them direct and immediate allegiance."

Permit me to say in conclusion that I have no other interest or concern in this discussion, except such as every member of the profession must feel who desires to learn what the law actually is.

Yours very truly,

ALEX. PORTER MORSE. WASHINGTON, D. C., Dec. 17, 1884.

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