V.

1, 1862; leaving the central part, from Monroe to Shreveport about 100 miles, uncompleted. The further construction of the road was prevented and suspended during the civil war, and much of the track, bridges, stations, and workshops was destroyen by the hostile armies. Soon after the return of peace, a holder of four out of a large number of bonds secured by a mortgage executed by the corporation on September 1, 1857, of its railroad property, and franchises, commenced a suit in the court of the State of Louisiana, and obtained a decree for the sale of the whole mortgaged property, and it was sold under that decree. Upon a suit afterwards brought by a very large number of the bondholders, in behalf of all, in the Circuit Court of the United States, that sale was, by a decree of this court, at October term, 1874, annulled as fraudulent and illegal, and the railroad, property, and franchises ordered to be sold for the benefit of the bondholders and other creditors of the corporation. Jackson Ludeling, 1, 1879, they were sold pursuant to this decree, and purchased by a committee of the bondholders, who on the next day organized themselves, with their associates, into a corporation under the general statute of Louisiana of March 8, 1877, by the name of the Vicksburg, Shreveport & Pacific Railroad Company, and now claimed to be entitled, under this statute, to all the rights, powers, privileges, and immunities of the Vicksburg, Shreveport & Texas Railroad Company, including its exemption from taxation. In 1881 and 1882 the new corporation made contracts for the competition of the railroad between Monroe and Shreveport, and began to complete it; but it has not yet been completed. The Supreme Court of Louisiana held that the provision of the statute of 1853, exempting the railroad, fixtures and appurtenances "from taxation for ten years after the completion of said road," did not relieve the old corporation from taxation before the road was completed, and therefore gave judgment for the plaintiff, without determining whether the new corporation had succeeded to the rights of the old one in this respect. Dennis v. Vicksburg, S. & P. R. Co., 34 La. Ann. 954. A writ of error was sued out by the defendant, and allowed by the chief justice of that court, because there was drawn in question the validity of a statute of, or an authority exercised under the State, on the ground of its being repugnant to the Constitution of the United States, as impairing the obligation of contracts, and the decision was in favor of its validity.

2 Wall. 616. On December

In determining whether a statute of a State impairs the obligation of a contract, this court doubtless must decide for itself the existence and effect of the original contract (although in the form of a statute), as well as whether its obligation has been impaired. Louisville & N. R. R. v. Palmes, 109 U. S. 244, 256, 257; s. C., 3 Sup. Ct. Rep. 193, and cases cited; Wright v. Nagle, 101 U. S. 791,

794. But the construction given by the Supreme Court of Louisiana to the contract relied on in the present case accords, not only with its own decision in the earlier case of Baton Rouge R. R. v. Kirkland, 33 La. Ann. 622, but with the principles often affirmed by this court.

In the leading case of Providence Bank v. Billings, 4 Pet. 514, Chief Justice Marshall, speaking of a partial release of the power of taxation by a State in a charter to a corporation, said: "That the taxing power is of vital importance, that it is essential to the existence of government, are truths which it cannot be necessary to re-affirm." "As the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it does not appear." "We must look for the exemption in the language of the instrument; and if we do not find it there, it would be going very far to insert it by construction." 4 Pet. 561-563. In Philadelphia & W. R. v. Maryland, 10 How. 376, Chief Justice Taney said: "This court on several occasions has held that the taxing power of a State is never presumed to be relinquished, unless the intention to relinquish is declared in clear and unambiguous terms." 10 How. 393. In the subsequent decisions the same rule has been strictly upheld and constantly reaffirmed, in every variety of expression. It has been said that "neither the right of taxation, nor any other power of sovereignty, will be held by this court to have been surrendered, unless such surrender is expressed in terms too plain to be mistaken;" that exemption from taxation "should never be assumed unless the language used is too clear to admit of doubt;" that "nothing can be taken against the State by presumption or inference; the surrender, when claimed, must be shown by clear, unambiguous language, which will admit of no reasonable construction consistent with the reservation of the power; if a doubt arises as to the intent of the legislature, that doubt must be solved in favor of the State;" that a State "cannot by ambiguous language be deprived of this highest attribute of sovereignty;" that any contract of emption "is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require;" and that such exemptions are regarded "as in derogation of the sovereign authority and of common right, and, therefore, not to be extended beyond the exact and express requirement of the grants, construed strictissimi juris." Jefferson Branch Bank v. Skelly, 1 Black, 436, 446; Gilman v. Sheboygan, 2 Black, 510, 513; Delaware Railroad Tax, 18 Wall. 206, 225, 226; Hoge v. Railroad Co., 99 U. S. 348, 355; Southwestern R. R. v. Wright, 116 U. S. 231, 236; S. C. ante, 375; Erie Ry. v. Pennsylvania, 21 Wall. 492, 499; Memphis Gas-Light Co. v. Shelby Taxing District, 109 U. S, 398, 401; S. C. 3 Sup. Ct. Rep. 205; Tucker v. Ferguson, 22 Wall. 527,

ex

575; West Wisconsin Ry. v. Supervisors, 93 U. S. 595, 597; Memphis & L. R. R. R. v. Railroad Com'rs, 112 U. S. 609, 617, 618; S. C. 5 Sup. Ct. Rep. 299.

It is argued, in support of this writ of error, that as the exemption from taxation of the capital stock was unqualified and perpetual, and began at the very moment of the creation of the corporation, the further exemption of the railroad and its appurtenances, conferred in the same section, was intended to begin at the same moment, although limited in duration to 10 years after the completion of the road; and that the legislature, while exempting the railroad from taxation for 10 years after its completion, could not have intended to subject it to taxation before its completion, and while its earnings were little or nothing. On the other hand, it is argued that the consideration of the exemption from taxation, as of all the franchises and privileges granted by the State to the corporation, was the undertaking of the corporation to prosecute to completion within a reasonable time the work of building the whole railroad from the Mississippi to the Texas line; that one reason for defining the exemption of the railroad and its appurtenances from taxation as "for ten years after the completion of said road," without including any time before its completion, was to secure a prompt execution of the work, and to prevent the corporation from defeating the principal object of the grant, and prolonging its own immunity from taxation, by postponing or omitting the completion of a portion of the road; and that the State had never allowed a similar exemption to take place except after a railroad had been entirely finished; and this argument is supported by the opinions of the supreme court of Louisiana in State v. Morgan, 28 La. Ann. 482, 491, and in the case at bar, 34 La. Ann. 954, 958.

Each of these arguments rests too much on inference and conjecture to afford a safe ground of decision, where the words of the statute creating the exemption are plain, definite and unambiguous. In their natural and their legal meaning, the words "for ten years after the completion of said road" as distinctly exclude the time preceding the completion of the road as the time succeeding the 10 years after its completion. If the legislature had intended to limit the end only, and not the beginning, of the exemption, its purpose could have been easily expressed by saying, “until," instead of "for," so as to read, "until ten years after the completion," leaving the exemption to begin immediately upon the granting of the charter. To hold that the words of exemption actually used by the legislature include the time before the completion of the road would be to insert by construction what is not to be found in the language of the contract; to presume an intention, which the legislature has not manifested in clear and unmistakable terms, to surrender the taxing power, and to go against the uniform current of the decisions of this court upon the subject, as shown by the cases above referred to.

The omission of the taxing officers of the State in previous years to assess this property cannot control the duty imposed by law upon their successors, or the power of the legislature, or the legal construction of the statute under which the exemption is claimed.

In the case of Morgan v. Louisiana, 93 U. S. 217, affirming the decision in 28 La. Ann. 482, neither this court nor the supreme court of Louisiana expressed any opinion upon the question now before us, because both courts held that the sale of the railroad in that case having taken place before the passage of the statute of 1877, whatever rights were conferred by a similar clause of exemption had not passed to the purchasers. Judgment affirmed.

FIELD, J., (dissenting.) I am obliged to dissent from the judgment in this case. I agree with the majority, in all that is said in the opinion, as to the construction of the statutes which are alleged to exempt from the taxing power of the the State, property within its jurisdiction. Where there is a reasonable doubt as to their construction, whether or not they create the exemption, it should be solved in favor of the State. But here it does not seem to me there can be any such doubt. The statute in question declares that the capital stock of the company "shall be exempt from taxation; and its roads, fixtures, workshops, warehouses, vehicles of transportation and other appurtenances shall be exempt from taxation for ten years after the completion of said road within the State." This exemption was designed to aid the road, and was therefore much more needed during the construction than when completed. It seems like a perversion of the purpose of the statute to hold that it intended to impede by its burden the progress of the desired work, and relieve it of the burden only when finished. The enterprise is to be nursed, according to the majority, not in its infancy, but when successfully carried out and needs no support.

I am authorized to say that the Chief Justice, Mr. Justice MILLER, and Mr. Justice BRADLEY concur with me in this dissent.

NOTE. In regard to the construction by the United States Supreme Court of a State statute which is alleged to be in violation of the Federal Constitution, as in pairing the obligation of a contract, it is said, in Louisville &c. R. R. v. Palmes,1 "in reaching a conclusion on that point, we decide for ourselves, independently of the decision of the State court, whether there is a contract, and whether its obligation is impaired: and if the decision of the question as to the existence of the alleged contract requires a construction of State Constitutions and laws, we are not necessarily governed by previous decisions of the State courts upon the same or similar points, except where they have been so firmly established as to constitute a rule of property; such has been the uniform and well settled doctrine of this court."2 The same principle was held in Wright

1 109 U. S., 244.

2 Bank v. Knoop, 16 How. 369.

v. Nagle, and to these authorities may now be added the principal case. But of course the converse of this proposition will not hold. .For the rulings of the Supreme Federal Tribunal, on all constitutional questions of this character, are of paramount and binding force.

There is no lack of authority to support the doctrine that a state legislature may waive the right of taxation, in a particular instance, for a limited or unlimited period, and that if this intention is manifested in unequivocal terms, it constitutes a contract which must not be impaired by the subsequent levying of a tax.4 For example, where all the property of a corporation is by its charter exempted from taxation, a subsequent law exempting only such property as is in immediate use by institutions of that character,cannot apply to the corporation in question. Nevertheless, a contract of this kind is always to be construed, most strictly against the corporation and in favor of the State; every reasonable doubt is to be resolved in favor of the latter; and the legislature will never be understood to have waived the right of subjecting the property and franchises of the corporation to the imposition of taxes unless the intention to do so is expressed in the grant itself in language too plain and explicit to be mistaken. These statements are amply borne out by the reasoning of Mr. Justice Gray in the principal case, as well as by the long list of authorities which he cites. And the reason of this rule is based upon two considerations. First, as suggested by the learned justice, the power of taxation is one of the highest attributes of sovereignty, essential to the existence of government, and necessary to the welfare of the community; and therefore its relinquishment should never be presumed unless expressly declared. And in the second place, upon the familiar doctrine of the common law that the sovereign is never bound by a statute unless particularly named in it, and hence, by an easy deduction, that the powers and prerogatives of sovereignty are never to be abrogated or curtailed, except by explicit and unambiguous words of concession. Nor is this rule confined to the waiver of the right of taxation. It applies equally to all alleged restrictions upon the power of future legislatures. Thus, while it is well settled that the State may grant exclusive privileges to a corporation (unless forbidden by its own constitution), and thereby preclude itself from conferring similar franchises upon any other body within the specified limits or during the stipulated time, yet if the privileges granted to the corporation are not made exclusive by the clear and unmistakable language of the act, the State is not debarred from incorporating a second body for similar puposes, though the interest and profits of the first are thereby injuriously affected.7

Another line of cases presents a further view of the doctine under consideration, viz: That there must be

3 101 U. S., 791.

4 Home of the Friendless v. Rouse, 8 Wall. 430; Delaware Railroad Tax, 18 Wall. 206; Asylum v. New Or leans, 105 U.S. 368; New Jersey v. Wilson, 7 Cranch, 166; Bank v. Knoop, 17 How. 376; Gordon v. Appeal Tax Court, 3 How. 133; Wilmington R. R. v. Reid, 13 Wall. 266; Humphrey v. Pegues, 16 Wall. 249; Farrington v. Tennessee, 95 U. S. 689.

5 University v. People, 99 U. S. 309.

6 West River Bridge v. Dix, 6 How. 507; Binghamton Bridge, 3 Wall. 51; Shorter v. Smith, 9 Ga. 529; Piscata. qua Bridge v. N. H. Bridge, 7 N. H. 35; Castar v. Brush, 25 Wend. 628; California Telegraph Co. v. Alta Tele. graph Co., 221 Cal. 398; Bridge Co. v. Hoboken Land Co., 2 Beasley, 81; Collins v. Sherman, 31 Miss. 679.

7 Turnpike Co. v. State, 3 Wall. 210; Shorter v. Smith, 9 Ga. 517; Collins v. Sherman, 31 Miss. 679; Fort Plain Co. v. Smith, 30 N. Y. 44.

a special consideration for the grant of an extraordinary privilege, like that of exemption from taxation; that if no bonus is paid by the corporation, no right surrendered to the public, no service or duty or additional obligation imposed upon the corporators as a consideration for it, it is no contract at all, but a mere spontaneous concession on the part of the legislature, and therefore revocable at will.8

It is to be observed that the fact that four judges dissented from the conclusion reached by the majority of the court, in the principal case, does not at all weaken the force of the decision as an authority for the principles of law therein laid down. The court was unanimous as to the rule of construction to be applied to the statute under consideration, but its members entertained different views as to the probable intention of the legislature in enacting it.

There is

1. ANNUITY.-Legacy-Trust-Trustee. no priority between annuitants and legatees when there is a deficiency of assets; both must abate alike, unless the testator has otherwise specifically provided. Trustees are to conduct themselves faithfully, and, in the exercise of a sound discretion, invest trust funds, not with a view of speculation, but rather to make a permanent disposition of the funds with a due regard for their probable income and safety. Emery v. Batchelder, S. C. Me., April 28, 1886, N. Eng. R., Vol. 2, 68.

2. COMMON CARRIER.-Bill of Lading — Liability Beyond Terminus Unless Limited by Contract."The rule is settled in this State," says Chief-Justice Stone, in delivering the opinion of the court, "that where a carrier receives goods consigned to a place beyond the terminus of his own route, without limiting his liability by express agreement, by the acceptance of the goods he assumes the duty and incurs the obligation to deliver them safely at the point of destination. M. & G. R. R. Co. v. Copeland, 63 Ala. 219. And this is the declared rule in a majority of the best considered cases. Illinois Central R. R. Co. v. Copeland, 24 Ind. 332; Id. v. Johnson, 34 Ill. 389; Southern Express Co. v. Shea, 38 Ga. 519; Little v. Semple, 8 Mo. 99; Hill Manfg. Co. v. B. & L. R. R. Co., 104 Mass. 122; Railroad Co. v. Pratt, 22 Wall. 123; Weed v. S. & S. R. R. Co., 19 Wend. 534; Burtis v. B. & St. L. R. Co., 24 N. Y. 269; Quinby v. Vanderbilt, 17 N. Y. 315; Lock Co. v. R. R. Co., 48 N.

3.

H. 339; Noyes v. R. R. Co., 27 Ver. 110; Perkins v. R. R. Co., 47 Me. 573; Carter v. Peck, 4 Sneed, 203; Mosher v. Southern Express Co., 38 Ga. 37." Louisville & Nashville R. R. Co. v. Meyer, S. C. of Ala., December Term, 1885-86.

Limitation of Liability Beyond Terminus-Requisites of Validity of.-A common carrier may limit the stern liability imposed on him by the common law, by a special agreement brought home to the consignor, and acquiesced in by him, provided it does not attempt to excuse the want of proper care and diligence in himself or his agents, and is not otherwise unreasonable. The opinion of the court continues: "No man can, in such service, bargain for an immunity from the effects of a want of that degree of diligence the nature of the service demands. And to render such limitation of liability available as an excuse or defense, it must be shown to have been accepted or acquiesced in by the consignor. Courts scrutinize such asserted exceptions with a watchful eye. Steele v, Townsend, 37 Ala. 247; S. & N. R. R. Co. v. Henlien, 52 Ala. 606; R. R. Co. v. Manfg. Co., 16 Wall. 318; R. R. Co. v. Lockwood, 17 Wall. 387; Chouteaux v. Leech, 18 Pa. St. 224; F. & Mech. Bank v. C. Transp. Co., 56 Amer. Dec. 68, and note; note to Cole v. Goodwin, 32 Amer Dec. 495-507; Hutch. on Car., §§ 240, et seq.; Angell on Car., §§ 220, et seq. Ibid.

What Insufficient to Charge Consignor with Notice of Limitation in Bill of Lading. When no bill of lading is delivered to the consignor on the receipt of the goods, but a printed form is filled up, leaving only a blank for the freight rate when ascertained, a sum of money being deposited by the consignor to pay the entire freight; and the bill of lading is then sent by mail to the consignor, never having been read over by him; this is not sufficient to charge him with notice of and acquiescence in a stipulation contained therein, limiting the liability of the carrier to losses occurring on his own line. Ibid.

5. CONSTITUTIONAL LAW.-Municipal Corporations -Special Privileges.-A statute enacted for the protection of a municipal corporation, if it relates to the exercise of a governmental power, is not unconstitutional because it does not also apply to persons or private corporations, or even to other municipal corporations. A municipal corporation, being a governmental agency, does not stand upon the same footing as to legislation as individuals or private corporations, save where it lays aside its sovereignty or public character, and acts in matters not governmental. A statute providing that no action for damages of any character whatever to either person or property shall be instituted or maintained against appellee, "unless such action be commenced within six months after the accrual of the cause of action," is held not to be unconstitutional in an action against the city to recover for injuries to property resulting from a street improvement. Preston v. Louisville, Ky. Ct. of E. & App., May 1, 1886, Kv. L. Rep., Vol. 7, 797.

7.

sary to save his own life or to save his person from great bodily harm. Creighton v. Commonwealth, Ky. Ct. of E. & App., April 27, 1886, Ky. L. Rep., Vol. 7, 785.

-

Forgery - Person - Indictment Plea in Abatement-Waiver.-Where a forgery is committed after the death of the man whose name purports to be signed to the instrument, it is proper to charge that the intent was to defraud his estate, as the estate of a decedent is, in law, regarded as a person.. It is not error to sustain a demurrer to a plea in abatement which is uncertain and defective because of an incomplete sentence. Where there is no plea, but a trial is had, the objection that there was a trial without a plea must be made in the trial court, or it will be deemed waived. Billings v. State, S. C. Ind., April 23, 1886, N. E. Rep., Vol. 6, 914.

8. DEED.-Notice-Record-Mortgage.-A grantee, under a conveyance, without knowledge of a prior, unrecorded conveyance, acquires a good title as against a tenant under such unrecorded deed; and whether his conveyance be in fee simple absolute or in mortgage, it entitles him to the possession of the demanded premises. The statute of 1883, chap. 223, § 14, has not the effect to convert a writ of entry into a bill in equity; demandant must still declare according to his legal title, and if an equitable defense is admissible at all, it is only when, if established, it would absolutely and unconditionally defeat the demandant's claim for possession under his title. Sherman v. Galbraith, S. J. C. Mass., April 1, 1886, N. Eng. R., Vol. 2, 89.

9. EQUITY.-Injunction Remedy Cannot be Invoked to Enjoin Proceedings Void Ab Initio.-Equity cannot be invoked to enjoin proceedings which are void ab initio, as where the petition alleges that the court, which rendered the judgment upon which execution issued, sought to be enjoined, had no jurisdiction; for such judgment is void, as well as the execution' issued thereon, and the petitioner's remedy is ample and adequate at law, for suit will lie against the officer attempting to levy the execution as a trespasser, and the purchaser's pretended title would be valueless. 23 Mo. 443; 22 Id. 90; 44 Id. 500; High on Injunc., §§ 89 and 125; 2 Story Eq. Jur., § 898, and cases cited. St. Louis, etc. R. Co. v. Reynolds, S. C. Mo., June 7, 1886.

10. ESTATE.-Fee Tail Special-Life Estate-Remainder.-A husband conveyed land to a trustee for the benefit of his wife and the heirs of her body, born in wedlock with him. Subsequently, after the death of the trustee, the husband and wife transferred and assigned to B. the rents and profits arising, and to arise, from the land above conveyed, to secure a certain judgment debt held by B. against the husband. In an action by the wife's heirs for possession of lands, after her death: Held, that the deed to the trustee created an estate in fee-tail special. 2 Bl. Com. 114. The effect of § 5, p. 355, R. S. Mo. 1855, which abolished estates in fee tail, was to create in the wife a life estate only, with remainder in fee to her heirs, and upon the death of their mother the heirs became entitled to possession. The husband or wife could do no more than dispose of the life estate. The husband had no estate by curtesy, for such an estate is not an incident to a life estate. 12 Mo. 359. Phillips v. Laforge, S. C. Mo., June 7, 1886.

11. EVIDENCE.-One Party to Transaction DeadTestimony of Circumstances.-Where one party

to a transaction is dead, thus rendering the other incompetent to testify, it is proper to resort to any testimony of circumstances having a tendency to shed light upon the transaction, as here reading in evidence a note made between the parties, and found among the papers of the deceased party. Kinchelo v. Priest, S. C. Mo., June 7, 1886.

12. GUARDIAN AND WARD.-Liability on Bond.A guardian who accepts from his predecessor in the trust a note payable to such predecessor individually, is guilty of a breach of duty which renders him liable on his bond. State, ex rel. v. Greensdale, S. C. Ind., May 19, 1886, N. E. Rep., Vol. 6, 926.

13. HUSBAND AND WIFE.-Warranty-Estoppel.Where a married woman is not liable by statute upon her covenants of warranty, her act of joining with her husband in a conveyance of his land will not estop her from asserting an after-acquired title in her own name, and acquired by her own means. Where appellant was in possession of land and the legal title was in him, he could not acquire a lien upon the land for taxes paid by him. Snoddy v. Leavitt, S. C. Ind., February 17, 1886, West. Rep., Vol. 3, 360.

14. INSURANCE.-Life Insurance.-A life insurance company cannot be charged as trustee in an action at law against a beneficiary named in a policy which had become a claim, and which was made payable to the assured, his executors, administrators and assigns, for the sole use and benefit of the beneficiary named. Upon the death of the assured, intestate, his administrator is the only person who could maintain an action at law against the company for the insurance under such a policy, where no assignment had been made. Stowe v. Phinney, S. C. Me., May 17, 1886, N. Eng. R., Vol. 2, 74. 15. LIEN OF DEED OF TRUST.-Payee of Note Cannot Discharge by Entering Satisfaction on Record Margin, when.-The payee of a note secured by a deed of trust cannot, after he has assigned the note, discharge the property of the lien as between a bona fide purchaser of the property and the assignee of the note, by entering satisfaction of the debt on the margin of the record. 62 Mo. 459; 73 Id. 19; 77 Id. 383; 84 Mo. 487. Lee v. Clark, S. C. Mo., June 7, 1886.

16. MANDAMUS-Cannot Control Judgment or Discretion of an Inferior Court-Adequate Remedy by Appeal Bars Remedy by Mandamus.-Mandamus will not lie to control the judgment or discretion of an inferior court, for this in effect would be to substitute the opinion of the superior for that of the inferior court. 16 Ga., 13; High on Extra Legal Rem., §§ 171, 176, 156. The existence of another adequate and specific remedy by appeal bars the exercise of jnrisdiction by mandamus, for such a writ is not to nsurp the functions of a writ of error or appeal, or to correct error which may be corrected in that way. High on Extra Leg. Rem., § 188. State ex rel. v. McGown, June 7, 1886.

17. MORTGAGES.-Lien-Vendor and Vendee.-A mortgage, if valid at the place where executed, is valid everywhere, and a mortgagee of personalty in another State may follow it into this State and foreclose the mortgage in the county where it may be found. 45 Ga., 549. Where a mortgage on personal property was regularly made and recorded in another State, and the property having been

brought into this State, the mortgagee followed it and foreclosed his mortgage in the county where the property was found, and caused it to be levied, which was done before the expiration of the time allowed for the registry of such a mortgage in this State, the foreclosure was valid as against a bona fide purchaser of the property without notice of the encumbrance, although the mortgage was not recorded in this State until after forclosure. Code, §§ 1956, 1957. Hubbard v. Andrews, S. C. Ga., June 1, 1886, Ga., Rep. Vol. 1, 478.

18. PARTITION-Primary Object-When Questions of Title May be Raised-Effect of Adjudication— Descent and Distribution-Children of the First Wife Inherit From Childless Second Wife-Title During Her Life-Estoppel-Quitclaim DeedAfter-Acquired Title.-While the primary object of an action in partition is not to settle conflicting titles, nor to create and vest a new title, but to sever the unity of possession, and allot the respective shares, yet the question of title may be presented and settled, and the adjudication will be final and conclusive as between the parties; but it can only operate upon existing titles, and will not affect after acquired titles. Under the Indiana statute of descents, a childless second wife takes one-third of the husband's lands at his death by descent, free from all demands of his creditors, and at her death the children by the first wife take the same by inheritance from the second wife, and not from the father; so that, while she is alive, they have no present title. A quitclaim deed will not estop the grantor from setting up an afteracquired title. Thorp v. Hanes, S. C. Ind., May 11, 1886, N. E. Rep. Vol. 6, 920.

19. PARTNERSHIP — Dissolution — Constructioc of Articles-Accounting-Note..-A partnership consisting of three persons agreed that they should dissolve, and the retiring partner should sell his interest in the firm to the remaining partners. Though the respective contributions to firm capital were unknown, they shared equally in profits and losses. Articles of dissolution provided that, for the purpose of determining the interest of the retiring partner, the shares of two of the partners, "as they stand on the books," should be added together, and the interest of the retiring partner should "be adjusted upon the basis of one equal half part of such sum." Provision was also made for an appraisement. The firm books, before the appraisement, showed an apparent excess of assets over liabilities materially larger than the real excess as shown by the appraisement. At an attempted agreement before the appraisement the interests were calculated upon the basis of the apparent excess of assets over liabilities, and at a subsequent agreement the interests in the real excess, as shown by the appraisement, were calculated upon the same basis. The retiring partner, who had refused the first settlement, accepted a firm note his share at the second. Subsequently the remaining partners declared that the second settlement was erroneous because the shares of the partners, as they stood on the books at the dissolution, had not had charged against each of them one-third of the amount of the reduction made by the appraisers, or one-third of the difference between the apparent and real excess of assets over liabilities, which defense they set up in an action upon the note given to the retiring partner. Held, that to refuse a recovery upon the note would be