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the transaction. On the contrary, the contract plainly was that if the stocks bought advanced, the profit was to be realized by a sale. If they declined, the remedy of respondent to save himself was by a sale. The settlement was to be of the profits and losses thus ascertained.

If in the absence of express stipulation, the 'reciprocal rights of tendering and demanding this stock would be presumed to enter into such a contract, the whole circumstances corroborate the testimony of Flagg, who swears that it was expressly understood that there was not to be any actual delivery of stocks, and that he should not be required to pay for them.

In the able opinion below, much stress is laid on the fact that the purchases and sales for this account were actually made by respondent. He so testifies, and produces vouchers in corroboration of his statement. That the transactions were very large, and upon a petty advance, is not sufficient probably to permit us to reject this positive statement. But assuming it to be true that respondent actually purchased or sold every share of stock in this account, I am unable to perceive how the circumstance affects the conclusion in this case. If respondent was the mere agent of the appellants in transactions with third parties, there might be some significance attached to it. But such is not, as we have seen, the real nature of the relation between the parties. They were dealing, as to this transaction, as principals, and it was a matter of indifference whether respondent owned or bought the stock he agreed to carry. The transaction was precisely like that which Judge Woodruff, in the disseuting opinion in Markham v. Jaudon, characterized as 66 an executory agreement for a pure speculation in the rise and fall of stock, which the broker, on condition

CITIZENSHIP OF A PERSON BORN IN THE

UNITED STATES OF CHINESE PARENTS.

UNITED STATES CIRCUIT COURT OF CALIFORNIA.
SEPTEMBER 29, 1884.

IN THE MATTER OF LOOK TIN SING, ON HABEAS
CORPUS.

A person born within the United States of Chinese parents re-
siding therein, and not engaged in any diplomatic or offi-
cial capacity under the Emperor of China, is a citizen of
the United States.

Persons are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, with the consequent obligation to obey them when obedience can be rendered; but only those who are thus subject by their birth or naturalization are within the terms of the amendment. The jurisdiction over these latter must at the time be both actual and exclusive. Persons excepted from citizenship, notwithstanding their birth or naturalization in the United States.

Previous to this amendment, the general doctrine, except as applied to Africans brought here and sold as slaves, and their descendants, was that birth within the dominions and jurisdiction of the United States, of itself created citizenship. The amendment was adopted as an authoritative declaration of this doctrine as to the white race, and also to do away with the exception as to Africans and their descendants.

The acts of Congress of 1882 and 1884, restricting the immigration of Chinese laborers to the United States, are not applicable to citizens of the United States, though of Chinese parentage. No citizen can be excluded from the United States except in punishment for crime.

of indemnity against loss, agrees to carry through in APPLICATION for a writ of habeas corpus. The

his own name and on his own means or credit, accounting to him (the customer) for the profits, if any, and holding him responsible for the losses." Such an agreement is within the principles above referred to, a wager.

Nor is the result altered by the fact that the broker has or attempts to retain perfect indemnity against loss on his part. As I interpret the transactions, respondent, in consideration of commissions and interest on advances, agreed to buy and hold stock in anticipation of a rise; or to sell stock of his own, or borrowed for that purpose, in anticipation of a fall. The agreement required him to pay the profits of the transaction, which would otherwise be his, to appellants. On the other hand, appellants, in consideration of his thus carrying the stock bought, or providing the stock sold, agreed that in case of a rise or fall to a certain amount, the stock should be closed out, and the loss, which otherwise would fall on respondent, should be paid by them to him. This bargain contained all the elements of a wager. It is not less a wager because one of the parties obtained a guaranty for the performance of the bargain by the other party.

For these reasons my conclusion is that the transactions in question were wagers within the meaning of our law; that the securities given for them would be absolutely void if the contracts were made in this State; that although made in a foreign State, and not objectionable by the law which must be presumed (in the absence of proof) to govern them, they will not be, and ought not to be enforced in this State between these parties, because to enforce them would be opposed to a public policy on this subject of the vice of gaming, perspicuously shown by our law on that subject.

The decree below must be reversed, and a decree entered dismissing the bill. Appellants are entitled to their costs.

opinion states the facts.

Before Circuit Justice Field, Circuit Judge Sawyer, and District Judge Sabin.*

T. D. Riordan and William M. Stewart, for petitioner.

S. G. Hilborn, United States Attorney, Carroll Cook, Assistant United States Attorney, and John N. Pomeroy, for United States.

FIELD, C. J. The petitioner belongs to the Chinese race, but he was born in Mendocino, in the State of California, in 1880. In 1879 he went to China, and returned to the port of San Francisco during the present month (September, 1884), and now seeks to land, claiming the right to do so as a natural born citizen of the United States. It is admitted by an agreed statement of facts that his parents are now residing in Mendocino in California, and have resided there for the last twenty years; that they are of the Chinese race, and have always been subjects of the emperor of China; that his father sent the petitioner to China, but with the intention that he should return to this country; that the father is a merchant at Mendocino, and is not here in any diplomatic or other official capacity under the emperor of China. The petitioner is with out any certificate, under the act of 1882 or of 1884, and the district attorney of the United States, intervening for the government, objects to his landing for the want of such certificate.

The first section of the Fourteenth Amendment to the Constitution declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States

*Judge Hoffman did not sit on the hearing of this case, but he was on the bench when the opinion was delivered, and concured in the views expressed.

and of the State wherein they reside." This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words "subject to the jurisdiction thereof." They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them, when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment.

The jurisdiction over these latter must at the time be both actual and exclusive. The words mentioned except from citizenship children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence, by a fiction of public law, is regarded as part of their own country. This extra-territoriality of their residence secures to their children born here all the rights and privileges which would inure to them had they been born in the country of their parents.

Persons born on a public vessel of a foreign country, whilst within the waters of the United States, and consequently within their territorial jurisdiction, are also excepted. They are considered as born in the country to which the vessel belongs. In the sense of public law, they are not born within the jurisdiction of the United States.

The language used has also a more extended purpose. It was designed to except from citizenship perBons, who though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection with the country. The United States recognize the right of every one to expatriate himself and choose another country. This right would seem to follow from the greater right proclaimed to the world in the memorable document in which the American Colonies declared their independence and separation from the British Crown, as belonging to every humau beingGod-given and inalienable-the right to pursue his own happiness. The English doctrine of perpetual and unchangeable allegiance to the government of one's birth, attending the subject wherever he goes, has never taken root in this country, although there are judicial dicta that a citizen cannot renounce his allegiance to the United States without the permission of the government, under regulations prescribed by law; and this would seem to have been the opinion of Chancellor Kent when he published his commentaries. But a different doctrine prevails now. The naturalization laws have always proceeded upon the theory that any one can change his home and allegiance without the consent of his government. And we adopt as citizens those belonging to our race, who com. ing from other lauds, manifest attachment to our institutions, and desire to be incorporated with us. So profoundly convinced are we of the right of these immigrants from other countries to change their residence and allegiance, that as soon as they are naturalized they are deemed entitled, with the native- born, to all the protection which the government can extend to them wherever they may be, at home or abroad. And the same right which we accord to them to become citizens here, is accorded to them as well as to the native-born, to transfer their allegiance from our government to that of other States.

In an opinion of Attorney-General Black, in the case of a native Bavarian, who came to this country, and after being naturalized returned to Bavaria, and desired to resume his status as a Bavarian, this doctrine is maintained. "There is," he says, 66 no statute

or other law of the United States which prevents either a native or naturalized citizen from severing his political connection with this government, if he sees proper to do so in time of peace, and for a purpose not directly injurious to the interests of the country. There is no mode of renunciation prescribed. In my opinion if he emigrates, carries his family and effects with him, manifests a plain intention not to return, takes up his permanent residence abroad, and assumes the obligation of a subject to a foreign government, this would imply a dissolution of his previous relations with the United States, and I do not think we could, or would, afterward claim from him any of the duties of a citizen." Opinions of Atty. Gens., vol. 9, 62.

The doctrine thus stated has long been received in the United States as a settled rule of public law; and in the treaty of 1868 between China and this country, the right of man to change his home and allegiance is recognized as "inherent and inalienable. Art. 5, 16 Stats. 740. And in the recital of an act of Congress passed nearly at the same time with the signing of the treaty, this right is assumed to be "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness;" and in the body of the act, "any declaration, instruction, opinion, order or decision of any officers of this government which denies, restricts, impairs or questions the right of expatriation," is declared to be inconsistent with the fundamental principles" of our government. 13 Stats. 223; Rev. Stat., § 1999.

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So therefore if persons born or naturalized in the United States have removed from the country and renounced, in any of the ordinary modes of renunciation, their citizenship, they thenceforth cease to be subject to the jurisdiction of the United States.

With this explanation of the meaning of the words in the Fourteenth Amendment, "subject to the jurisdiction thereof," it is evident that they do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship; and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.

The clause as to citizenship was inserted in the amendment not merely as an authoritative declaration of the generally recognized law of the country so far as the white race is concerned, but also to overrule the doctrine of the Dred Scott case, affirming that persons of the African race brought to this country and sold as slaves, and their descendants, were not citizens of 1 the United States nor capable of becoming such. The clause changed the entire status of these people. It lifted them from their condition of mere freedmen and conferred upon them, equally with all other nativeborn, the rights of citizenship. When it was adopted the naturalization laws of the United States excluded colored persons from becoming citizens, and the freedmen and their descendants, not being aliens, were without the purview of those laws. So the inability of persons to become citizens under those laws in no respect impairs the effect of their birth, or of the birth of their children, upon the status of either as citizens under the amendment in question.

Independently of the constitutional provision, it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. This subject was elaborately considered by Assistant Vice-Chancellor Sanford in Lynch v. Clarke, found in the first volume of his reports. In that case one Julia Lynch, born in New York, in 1819,

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of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterward. It was held that she was a citizen of the United States.

After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural born citizen; and added, that this was the general understanding of the legal profession, and the universal impression of the public' mind. In illustration of this general understanding he mentions the fact, that when at an election an inquiry is made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country the answer is received as conclusive that he is a citizen; that no one inquires further; no one asks whether his parents were citizens or foreigners; it is enough that he was born here whatever was the status of his parents. He shows also that legislative expositions on the subject speak but one language, and he cites to that effect not only the laws of the United States, but the statutes of a great number of the States and establishes conclusively that there is on this subject a concurrence of legislative declaration with judicial opinion, and that both accord with the general understanding of the profession and of the public.

Whether it be possible for an alien, who could be naturalized under our laws, to renounce for his children, whilst under the age of majority, the right of citizenship, which by those laws he could acquire for them, it is unnecessary to consider, as no such question is presented here. Nor is the further question before us whether, if he cannot become a citizen, he can, by his act, release any right conferred upon them: by the Constitution.

As to the position of the district attorney that the Restriction Act prevents the re-entry of the petitioner into the United States, even if he be a citizen, only a word is necessary. The petitioner is the son of a merchant, and not a laborer within the meaning of the act. Being a citizen, the law could not intend that he should ever look to the government of a foreign country for permission to return to the United States. And no citizen can be excluded from this country except in punishment for crime. Exclusion for any other cause is unknown to our laws and beyond the power of Congress. The petitioner must be allowed to land, and it is so ordered.

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A legal dependency is necessary to constitute a right of action under the statute, R. L., § 3833, giving an action to one dependent on a person whose death was caused by intoxicating liquors illegally furnished; thus, if the action is brought by one claiming to be the widow of such person, it is incumbent on her to prove that her marriage was lawful; or if by a child, that he was legitimate.

The statute gives the right of action to one dependent on such intoxicated person for support.

ACTION given by R. 1.850. Trial by jury, Sep

tember Term, 1882, Windham county, Rowell, J., presiding. Verdict ordered for the defendants. The plaintiff offered to prove that the defendant Towns * To appear in 56 Vermont Reports.

was the proprietor of a hotel in Bellows Falls; that he kept a bar in his hotel, at which intoxicating liquor was sold, and that the defendant Sullivan tended the bar for him; that Sullivan unlawfully sold said liquor to one Peter Good, who drank such quantities of it that he died in consequence thereof. She also offered to prove that said Good was married to one Mary E. Marcy in 1854, and that she lived with him as his wife till the summer of 1867, when she left him, and at the time of his death, in 1881, she was living in Worcester, Mass., with another man as his wife, between whom the ceremony of marriage was performed in 1872; that no divorce had been granted to said Good or his wife; that the said Mary E. was not dependent on said Good for her support, and that she made no claim on his estate, and none on the defendants; that soon after said Good's wife left him he procured this plaintiff, Mary M., then about fourteen years of age, to work for him as his housekeeper; that she lived with him as his wife till the time of his death; that at that time she was the mother of seven children, and two days after his death she gave birth to an eighth child, and that said Good was the father of said children; that after the birth of the first child the ceremony of marriage was performed between the said Good and the said plaintiff, Mary M., and that she under stood that he had been divorced from his first wife; that said Good acknowledged the seven born previously to his death to be his children, and furnished a home and support for them; that said Good treated and acknowledged said plaintiff, Mary M., as his wife in the community where they lived; that he had supported her, and would have contined to do so had he lived; and that she was dependent on him for support. Mary E. Good brought her action by her next friend, Mary M. Good. In this suit the plaintiff offered to prove substantially the same facts that Mary M. did in her suit; and that she was the child, about thirteen years old, of the said Peter and Mary M. Good; that ever after her birth said Peter had acknowledged that he was her father, and treated her as his child, furnished her a home, supported her, and would have continued to do so had he lived; and that she was dependent on said Peter for her support.

Bridgman & Weston and C. B. Eddy, for plaintiffs. James Barrett and L. M. Reed, for defendants. ROWELL, J. The first point made by the defendant is that the statute* gives a right of action, not to one dependent for support on the intoxicated person who dies or is disabled, but to one thus dependent on the person whom the intoxicated person kills or disables; and such is the construction given to a similar statute in New Hampshire. Hollis v. Davis, 56 N. H.74. But in Richards v. Moore, heard at the January Term, 1882, in Franklin county, this court held that the statute gave a right of action to one dependent on the intoxicated person, and we are not disposed to overrule that decision.

The next question is, what is the character of the dependency that gives this right of action? Plaintiffs

***When a person, by reason of intoxication, commits or causes an injury upon the person or property of another, a person who by himself, cierk or servant, unlawfully sold or furnished any part of the liquor causing such intoxication, shall be liable to the party injured for the damage occasioned by the injury so done," etc. "In case of the death or disability of a person, either from such injury or in consequence of intoxication from the use of liquors so unlawfully fur nished, a person who is in any manner dependent on such injured person for means of support, or a person on whom such injured person is dependent, may recover from the person unlawfully selling or furnishing any such liquor the damage or loss sustained in consequence of such injury." R. L., 3833.

contend that a dependency in fact is sufficient, though it may not be a legal dependency, and that here was a legal dependency in the case of the child at all events. Defendants, on the other hand, contend that nothing short of a dependency that the party depended upon is legally bound to respond to is sufficient, and that here was no such dependency as to either plaintiff.

As to the plaintiff Mary M. Good, it needs no argument to show that Peter Good was under no legal obligation to her to support her. His marriage to her was void; and as between the parties thereto it imposed none of the legal obligations of lawful matrimony. But as to third persons, a man who marries a woman, and holds her out to the world as his wife, cannot discharge himself from liability for necessaries supplied her by proving a previous lawful marriage to another woman still living. Watson v. Threlkeld, 2 Esp. 637; Robinson v. Nahon, 1 Camp. 245. But he is not liable for necessaries furnished her after separation, and ceasing to hold her out as his wife. Munro v. De Chemant, 4 Camp. 215. So in Norwood v. Stevenson and Wife, cited in a note to Munro v. De Chemant from Andrews, 227, it was held that a plea by the husband that "they were never joined in lawful matrimony" was no bar to an action against him and his wife for her debt contracted when sole, for that a marriage de facto made him liable.

As to the plaintiff Mary E. Good, she is an illegitimate child of the deceased; and as to such a child it is clear that the common law imposes no liability on the father as such to support it. But he is liable on his express promise for its support. He is also liable on his implied promise, without an order of affiliation, provided he has adopted the child as his own and acquiesced in any particular disposition of it. But he may renounce the adoption and terminate the implied assumpsit. This is the result of the cases, English and American: Hesketh v. Gowing, 5 Esp. 131; Cameron v. Baker, 1 C. & P. 268; Nichole v. Allen, 3 id. 36; Furillio v. Crowther, 7 D. & R. 612; Moncrief v. Ely, 19 Wend. 405. Otherwise than this the father is not liable except he be made so by an order of affiliation; and then his liability is not to the child, but is imposed by way of helping the mother or indemnifying the town.

It is true, as contended, that the language of the statute is broad, "in any manner dependent;" but after all, we think it should be construed to mean a legal dependency only, the same as though it read "in any manner legally dependent." If it is given greater scope than this there would be great difficulty in administering it. There would seem to be no stopping place short of including all possible cases of actual dependency, whatever the relation of the parties, and notwithstanding the absence of even a moral obligation to support; and yet no one, we presume, would contend for so latitudinarian a construction of the statute. Shall we then stop at the utmost limit of moral obligations? But the law cannot determine what a moral obligation is, and takes no cognizance of them. Again by what rule shall damages be assessed in cases where, as here, no legal right has been lost?

This is not a question on which much authority can be adduced, but the case of Dickinson v. North-Eastern R. Co., 2 H. & C. 735, is worth referring to. That was an action under the Civil Damage Act of 9 and 10 Vict., ch. 93, which provides that the action shall be for the benefit of the wife, husband, parent and child of the person killed. Price contended that "child," as used in the statute, included an illegitimate child; that the Legislature intended the right of action to be coextensive with the moral obligation to support; and that the legal right to support could not be the test of

what class of persons could maintain the action. But Pollock, C. B., said it was beyond all doubt that in the construction of that act the word "child" meant legitimate child only; and a rule for a new trial was refused.

The result is in both cases,

Judgment affirmed.

NEW YORK COURT OF APPEALS ABSTRACT. WILL--POWER OF SALE-DISCRETION OF EXECUTORS -WHEN COURT WILL NOT CONTROL.-The will of C. directed and empowered her executors to sell her real estate "for the best price that can be obtained for the same, and at such time or times as shall in their judgment be for the best interest of all concerned," and the proceeds were given them in trust for the benefit of certain beneficiaries. In an action brought about five years after the death of the testatrix, the removal of the only executor who qualified, because of alleged neglect of duty in omitting to comply with his provision, the referee found that there had been no demand for the property, and its depreciation in value after the death of the testatrix was due to the state of the real estate market in the place where the property was situated; that he had made all reasonable efforts to sell, without success, and that prior to the trial no offer had been made by any person to purchase. Held, that the relief sought was properly denied; that while the direction to sell was imperative, the time of sale was in the discretion of the executor, and his judgment, exercised in good faith, was conclusive. The learned counsel for the appellants calls our attention to Dimes v. Scott, 4 Russell, 195, as decisive of this question. It lacks however an essential element found in the case before us. In the case cited the executors were directed by the testator to convert the personal estate into money and invest the proceeds in a way stated. The language of the will was imperative. In this the testatrix, as we have seen, directs her executors to sell the real estate of which she shall die seized, but leaves the time of sale to be determined by their discretion. This clause cannot be disregarded. In both cases the intent to have the land sold is absolute, but in the latter the testatrix relies upon the judgment of her executor as to the time of sale, and whatever the court might think as to the expediency of an immediate sale, or a sale at some fixed time, its opinion cannot control the discretion of the executor in that respect. His judgment upon the question is conclusive if exercised in good faith. 1 Story's Eq. Jur. (10th ed.), §§ 169-170 a; Bunner v. Storms, 1 Sandf. Ch. 357; Hancox v. Meeker, 95 N. Y. 528. In view probably of this rule the complaint charges such acts and omissions on the part of the acting executor, as would, if true, subject him to the interference of a court of equity. But the allegations were put in issue, and the trial court has found not only that they were not proven, but on the contrary that the executor has at all times been ready and willing to sell the property in question at a fair price, and has taken the usual means, by advertising and otherwise, to make that disposition known. Haight v. Brisbin. Opinion by Danforth, J. [Decided May 9, 1884.]

NEGOTIABLE INSTRUMENT

DIVERSION

SALE

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do not think the case of Campbell v. Beaumont
91 N. Y. 464, properly considered, at all conflicts with
our view of the question now presented. In that case,
as in this, the intention of the testator was sought
after by an examination of the scope and meaning of
all the provisions of the will, and the first devise was
there in terms given for the "sole use benefit" of the
primary devisee. In view of that fact, and from the
indefinite and inconclusive character of the language
used in framing the provision, which was claimed to
have created a remainder, it was held that it was not
the intention of the testator to limit the absolute char-
acter of the primary devise. See also McLean v. Free-
man, 70 N. Y. 81; Downing v. Marshall, 23 id. 366. The
following additional cases may be cited as supporting
the general principle by which we have been con-
trolled. Norris v. Beyea, 13 N. Y. 273; Smith v. Van
Ostrand, 64 id. 278; Smith v. Bell, 6 Pet. 68, distin-
Wager v. Wager. Opinion by Ruger, C. J.
[Decided Jane 3, 1884.]

note, executed and indorsed by D. for the same
amount, which contained the statement, U. S. bond
$500 collateral security," and upon payment of the in-
terest cancelled the first note and surrendered it to D.
Before maturity of the second note D. absconded; it
not having been paid when due, defendant, without
notice to B. or plaintiff, sold the bond in open market,
appropriating sufficient of the proceeds to pay the
note. In an action for the conversion of the bond, held,
that defendant was liable; that before retaining the
bond upon a new coutract it should have required the
consent of B. (2) Much of the argument of the learned
counsel for appellant is founded upon the evidence in
relation to facts not found by the referee, and as to which
no finding was requested. In such a case they cannot
be considered for the purpose of reversing the judg-
ment. Thompson v. Bank of British North America,
82 N. Y. 1. With the facts before us found upon suffi-
cient evidence (Potter v. Carpenter, 71 N. Y. 75; Stil-guished.
well v. Mutual Life Ins. Co., 72 id. 385) there is no error
of law in the judgment appealed from. Burnap v.
National Bank of Potsdam. Opinion by Danforth, J.
[Decided May 9, 1884.]

CONSTITUTIONAL LAW-"DUE PROCESS OF LAW"LEGISLATURE MAY CHANGE REMEDY.-Sections 1421-5 of the Code of Civil Procedure, providing for the substitution of the sureties to an undertaking indemnify.

in an action against him because of such levy, are not
violative of the constitutional provision, prohibiting
the taking away of the private property of a citizen
without "due process of law." Amendment to U. S.
Const., art. 4; State Const., art. 1, § 6. They simply
change the form of the remedy of the owner of the
property, which is nevertheless left substantial and ef
fectual. The power belonging to the State Legislature
to regulate the civil procedure for the enforcement of
rights authorizes it to say when an officer, acting un-
der the requirements of that procedure may, and when
he may not, be sued, provided only the citizen is not
deprived of adequate remedy for any trespass or
wrong. The doctrine of the Federal courts has gone
so far as to hold that a tax may be assessed without no-
tice to the property-owner, and collected, although il-
legal, and his possible remedy by an action in equity to
restrain the collection of the tax was sufficient to save
the enactment complained of from the condemnation
of the fundamental law. McMillen v. Anderson, 95
U. S. 37. Here a wider and more abundant remedy
exists, and we do not feel safe or justified in saying
that the right to sue a specific individual is a constitu-
tional right which cannot be taken away, although ad-
equate and complete protection to the right of prop-
erty is left. Foule v. Mann, 53 Iowa, 42; Craig v.Fow-
ler, 59 id. 200; Sunberg v. Babcock, 16 N. W. Rep. 716,
distinguished. Hein v. Davidson. Opinion by
Finch, J.
[Decided June 3, 1884.]

WILL-REPUGNANT CLAUSES-LIMITATION OVERDEVISE OF ABSOLUTE ESTATE.-The will of W. gaveing a sheriff against a levy made by him as defendant to his wife the use of $4,000, which was about one-third of his estate, during life, with privilege in case the income therefrom should not be sufficient to support her to use sufficient of the principal for that purpose. To his daughter S. was given the residue of his estate. What remained of the $4,000 at the wife's death, the will, in case of the death of the daugther before the death of the wife thus provided: "All the property, both real and personal, that shall be left by my daughter at her death, which shall belong to me at my death, I give, together with what shall remain from the above mentioned $4,000, devise and bequeath to my beloved wife, to her use, her heirs and assigns forever." The testator's daughter S., which was his only child, died before him. In an action brought by collateral relatives, the heirs and next of kin of the deceased for a construction of the will, held, that it was the manifest intent of the testator to give to the survivor of the two legatees named his entire estate remaining undisposed of upon the death of the other, whenever that event should occur; that the gift to the wife, in case of her surviving the daughter, was not dependent upon the taking effect of the primary gift to the daughter, and while the language employed in making the latter gift would generally import an absolute estate, yet as such a construction would ren der inoperative the limitation over, and would defeat the manifest intent as above stated, it was the duty of the court to limit so as to render the whole will operative and to effectuate the intent, and that therefore the widow was entitled to the whole estate. It was said by Andrews, J., in Taggart v. Murray, 53 N. Y. 236, "if upon a comparison of the different provisions of a will it is found to contain dispositions which are repugnant to each other, then it is the office of judicial interpretation to preserve, if consistent with the rules of law, the paramount intention of the testator, as disclosed by the instrument, although in so doing it may defeat his purpose in some subordinate and less essential particular." In accordance with this principle it was held in Terry v. Wiggins, 47 N. Y. 512, where a will devised to the testator's wife "all other real and personal estate and effects that I may die possessed of, for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same," with a devise of the residue after his wife's death, to trustees for purposes named, that the wife took a life estate only with power of disposition, and that the last clause created a valid remainder. We

UNITED STATES SUPREME COURT AB-
STRACT.

RAILROAD-RECEIVER-CURRENT EXPENSES-MORTGAGE CREDITORS.-When a court of chancery, in enforcing the rights of mortgage creditors, takes possession of a mortgaged railroad, and thus deprives the company of the power to receive future earnings, the current earnings being used for the benefit of mortgage creditors before current expenses are paid, the mortgage security is chargeable in equity with the restoration of the fund thus improperly diverted and applied to the use of the mortgage creditors. Fosdick v. Schall, 99 U. S. 252. We do not now hold any more than we did in Fosdick v. Schall, or Huidekoper v. Locomotive Works, 99 U. S. 260, that the income of a railroad in the hauds of a receiver, for the benefit of

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