lowed to run until barred, the plaintiff should recover. The court, of its own motion, in substance, told the jury that if deceased, in his lifetime, exercised the same kind of care, in the collection of the notes, that an ordinarily prudent man would have done with his own business affairs, then the verdict should be for the defendant as to the barred notes.

1. There is no doubt but the confidence induced by undertaking services for another is a sufficient consideration for a faithful discharge of the trust. 2 Pars. Cont. (6th ed.) 98—and a depositor makes out a prima facie case, even against an unpaid bailee, by showing a deposit made, demand for, and refusal of, the thiug deposited. Huxley v. Hartzell, 44 Mo. 370; Wiser v. Chesley, 53 Mo. 547. But this case does not assume that form of action. So far as the barred notes are concerned, it is based upon negligence of the deceased. In all such actions the burden of proof rests upon the plaintiff, and he must prove each material fact necessary to create a liability. Edw. Bailm. §

106.

The

The first refused instruction asked the court to tell the jury that the written agreement-the receipt-implied a consideration to be received by Green out of the notes to be collected by him. The receipt did not so say, and it was not the proper province of the court to so declare. The evidence must determine whether the undertaking was gratuitous or not, and the jury should take all the circumstances into consideration. plaintiff does not appear to have made any effort to show that Green was to have any compensation, nor did he seek to have that question submitted to the jury as a question of fact, but relied upon a supposed presumption of law, which does not arise in this case. It is said, in Schouler, Bailm. 35, if the bailee received the thing in the usual course of his business, and business nsage, or his known method of dealing with other customers, gave him the right to demand compensation, then the trust, though accepted without express reference to a charge for services, is not to be taken as gratuitous. Further on, the same author says: "But attendant circumstances should be allowed their weight, and where one undertakes, for a near relative or personal friend, or out of mere charity or favor, and more especially if accomplishing the trust puts him to little outlay of time, trouble, and skill, and the bailment lies outside his remunerated field of laber, we may well presume the undertaking to have been gratuitous." And, in Mariner v. Smith, 5 Heisk. 203, where one deposited a quantity of gold, with a firm engaged in the boot and shoe business, and the gold was stolen from the safe of the merchants, it was held to be error to instruct the jury that, if the nature of the bailment was of such a character as to require extraordinary care and responsibility on the part of the bailee, the law will imply a reward.

Here there is no direct evidence that Green re

ceived, or was to receive, any compensation. The parties appear to have been personal friends and neighbors. Green was a farmer, and conducted a small country store, and there is no claim that he in any way assumed to be a collecting agent. These facts all tend to show that the undertaking was gratuitous. If the plaintiff desired to put the case before the jury on the theory that Green was a paid agent, he should have asked the court to submit that question to the jurors as a question of fact; but it is evident no such a claim was made, or intended to be made, on the trial, save by way of a presumption of law. The instruction was properly refused.

*

In Edwards on Bailments, § 77, it is said: "And there is a class of cases in which, without any delivery of goods or property, an unpaid agent is held responsible for the use of diligence in the business he undertakes; as where a man receives a demand to collect gratis. * * The effort to collect must be made with ordinary diligence. This is stated to be the rule in this class of cases in Newell v. Newell, 34 Miss. 385, which is a case in some of its features resembling the present one. The degree of care which the court required of the deceased, in the collection of the notes, was the same kind of care that an ordinarily prudent man would have used with his own business affairs. This stated the rule favorably to the plaintiff. Nothing appears to have been said in the evidence as to the solvency of the makers of the notes, though it was probably assumed on trial by both parties to the suit, that something could have been made out of Downing by suit. There is no claim of want of good faith on the part of the deceased. The instruction presented the case fairly enough.

2. There was no error in allowing the defendant to read, in evidence, a note, made by plaintiff to Green, for $300, dated in 1859, and found also among the papers of the deceased. It would have been natural, and in the ordinary course of affairs, for Green to have applied collections in payment of this note. One party being dead, and the other thereby rendered incompetent to testify, it was proper to resort to any circumstances having a tendency to shed light upon the particular transaction in question.

The judgment is affirmed.

1. ACCORD AND SATISFACTION.-Acceptance of an Admitted Balance-Condition.-Defendant and plaintiff had an unsettled disputed account. Defendant sent plaintiff a statement of the account as it claimed to be, to which plaintiff made no reply. Defendant then sent the statement, accompanied with its note to cover the admitted balance, and a letter in which it stated that the note covered the balance due, and hoped it would be satisfactory. The plaintiff replied to this letter, giving its version of the disputed items, but kept and used the note, which was paid at maturity. Held that, as there was no condition attached to the acceptance of the note for the admitted balance, it was not an accord and satisfaction of the debt. Boston Rubber Co. v. Peerless etc. Co., S. C. Vt. Aug. 11, 1886. 5 Atl. Rep. 407.

2. ASSIGNMENT.-Compromise — Attorney — Judgment.-A debtor holding a claim against a third person may deliver it into the hands of his creditor and authorize suit to be brought upon it in his own name for the benefit of such creditor. Authority to prosecute a suit does not involve authority to compromise it. Before an attorney can compromise a suit he must have special authority. If a judgment be entered where no indebtedness actually exists, such judgment cannot be used for the purpose of effecting a redemption. A decree for deficiency, entered after a sale on mortgage foreclosure, for the amount remaining due and unpaid on the mortgage after applying the proceeds of the sale, does represent an actual existing Wethindebtedness, and may be used to redeem. erbee v. Fitch, S. C. Ill. May 15, 1886. 4 West. R. 220.

3.

-.General Assignment for Creditors-Partial Assignments for Creditors.-To constitute a general assignment of a debtor's property for the benefit of creditors, within the meaning of the Acts of 1881, Ch. 121, the fact that it is a general assignment of all the debtor's property must appear on the face of the deed or the sworn inventory required to be annexed, and in that event only will the assignee be entitled to any other property of the debtor not described in the deed or set out in the inventory. A conveyance of a portion of the debtor's property for the benefit of one or more, or all his creditors is good to the extent of the property included therein if not made within three months of a general assignment, and a mortgage or trust deed to secure the price of property bought, or money loaned at the time is good, even if executed within three months of a general assignment. Hays v. Covington, S. C. Tenn. June 12, 1886. 2 So. Law Times, 325.

4.

-.General Assignment for Creditors-Schedule under oath Indispensable.-The fouth section of the Act of 1881, providing that "The debtor making a general assignment shall annex thereto a full and complete inventory or schedule under oath, of all his property of every description, etc.,” is mandatory and absolutely indispensable to the validity of the deed of assignment. The failure to comply makes the deed fraudulent on its face. Hill Fontaine & Co. v. Alexander, S. C. Tenn. May 8, 1886. 2 So. Law Times, 330.

5. ATTORNEY AND COUNSELOR.-Relation to Client, when Arises.-Where an attorney at law is, as such, called upon for "legal advice" by a person acting for himself, and he thereupon assumes to give a professional opinion in relation to the matter as to which he is consulted, the relation of attorney and client arises between him and the person so consulting him. Ryan v. Long, S. C. Minn. July 9, 1886. 29 N. W. Rep. 51.

6. ASSIGMENT.-Contempt-Admissions of Solicitor in Contempt Proceedings-Not Binding on Client Assignment for Benefit of Creditors— Wife Regarded as amy Third Person-Suit to Set Aside Fraudulent Convegance-Receiver- Creditors must Move through Receiver-Impleading Receiver-Leave of Court must be Obtained.-In a proceeding as for a contempt, to enforce a civil remedy, a solicitor has no authority to make admissions for his clients,and defendants can only be bound by written admissions, made a part of the record, and examinable on appeal. When there is an assignment for the benefit of creditors by the husband, and a proceeding to attach certain of his wife's property, alleged to have been obtained by fraud, the wife stands in the litigation like any third person; Husband and wife are not mutually responsible for each other's conduct, and if either is chargeable, it must be individually. Creditors cannot attach the interest of third parties, alleged to have been obtained by fraud, until they have obtained a standing by legal proceedings, and when there is a general assignment for the benefit of creditors the remedy is only given to the assignee or receiver. Where a receiver has been appointed, it is contrary to law to allow any one else to implead him in the same proceeding without leave of the court, or to take out of his hands the control of the proceedings. Scott v. Chambers, Wayne Circuit Judge, S. C. Mich. July 21, 1886. 29 N. W. Rep. 92.

9.

Corporation-Ultra Vires.-1. Although

a contract made by a street railway company to build its road may have been ultra vires, yet where it has been fully executed on the part of the one contracting with the company, and for nearly ten years the company has held, enjoyed and taken the fruits of the contract, it is estopped to deny its validity. In order to make a valid ratification, ft is sufficient if it is made with the full knowledge of all the material facts; and an instruction which adds a new element, namely: that the principal must have known, not only all the facts, but also the legal effect of the facts, and then, with a knowledge of both law and facts, ratified the contract, is erroneous. Where the circumstances of the case were such as to render the inference of ratification natural and easy, it was error to instruct the jury that, on all the evidence, they would not be warranted in finding a ratification. As a general rule, a contract between a corporation and its directors is not absolutely void, but voidable at the election of the corporation. The right to avoid it may be waived, and it does not necessarily require any independent and substantive act or ratification; but may become finally established as a valid contract by acquiescence; and such acquiescence may be inferred from the acts of the corporation during a long period of time. Kelley v. Newburyport, etc. Co., S. J. C. Mass., May 6, 1886, 2 N. Eng. Rep. 383.

10. CORPORATIONS.

Statute of Limitations Length of, and when Active against Stockholder. -When a judgment is obtained in Mississippi, against a private corporation organized under the laws of Alabama, and a bill in equity is filed here to enforce payment out of the unpaid stock of the corporators, the statute of limitations is twenty years, although the original demand was governed by the statute of six years. The statute of limitations does not begin to run in favor of the stockholders, as against the creditors of the corporation, until calls for stock have been made by the directors, or by a court of equity at the instance of creditors. Brown v. Grangers' Life and Health Ins. Co., S. C. Ala., Dec. Term, 1885-86.

11. CRIMINAL LAW.-Trial-Instruction-Enumeration of Elements of a Crime Instruction — Jury should Consider Court's Instructions-Witness-Accused as Witness-Credibility.—While an instruction purporting to state all the elements of an offense necessary to a conviction may be fatally defective if an essential element is omitted, yet where the instruction simply enumerates certain things that the prosecution must prove, without stating that they of themselves are sufficient, and the other requisites are given in another instruction, there is no error. It is not error to instruct a jury in a criminal case that, while they are the judges of the law as well as the evidence, if they are in doubt as to the law, they "should give the court respectful consideration." An accused who goes upon the stand has a right to put his evidence before the jury unprejudiced by adverse criticism of the court, and an instruction calling attention to his interest, and stating that, to have a controlling weight, his testimony should be consistent with other facts and circumstances in evidence, is erroneous. Bird v. State, S. C. Ind., June 22, 1886, 8 N. E. Rep., 14.

12. DEED.-Acknowledgment

- Necessity for, and Effect of-Partition-Tenant in Common not in Possession-Joint Tenants and Tenants in Common-Ejectment.-Conveyances are acknowledged for purposes of registration merely, while, as between the parties thereto, and all persons having actual notice thereof, deeds are good without any form of acknowledgment whatever. A tenant in common who is not in actual possession,and whose title is denied by his co-tenants, cannot maintain partition in equity. Ejectment is the only proper remedy for a tenant in common who is not in actual possession, and whose title is denied by his co-tenants. Criscoe v. Hambrick, S. C. Ark., June 26, 1886, 1 S. W. Rep. 150.

13.

Delivery-Amendment.-Delivery is essential to give effect to a deed; but delivery depends on the grantors's intention, and intention is a fact to be found by the trier; thus, a recorded deed was declared void, where the master found that the grantor merely left it in the possession of the grantee, but that she never delivered the deed, i. e., as an operative conveyance. The orator was allowed to amend nis bill, brought to set aside a deed, by adding to it as a cause the non-delivery of the deed. Dwinell v. Bliss, S. C. Vt., Aug. 2, 1886, 6 East Rep. 324.

14. EVIDENCE. - Instruction - Negligence - Diligence. The credibility of oral testimony being a question for the decision of the jury, a charge is erroneous which assumes, or states as fact, any material matter which depends on the sufficiency of the oral testimony for its establishment; yet, where the record affirmatively shows that certain facts were admitted, or were clearly proved and not disputed, they may be stated without hypothesis. Charges must be construed in connection with the evidence; and if, when so construed, it is free from error, though it assert a rule which, when applied to a different state of proof, would not be correct, it is no ground of reversal. Negligence, as a cause of action or as a defense, must be the proximate cause of the injury complained of; and when contributory negligence is set up as a defense, it is an admission of negligence on the part of the defendant. Diligence is a relative term, and has not always the same measure; and a charge which instructs the jury that the law ordinarily requires the same diligence from the driver of a carriage and a person on foot in a public street or road, is erroneous. A mere conflict in the testimony-as where one witness testifies that he heard one of the parties make a certain declaration, while others who were present at the time testify that they did not hear it-does not authorize a charge to the jury as to the effect to be given to the testimony of a witness who has sworn falsely in one particular. A party is not bound to produce all the witnesses who may know something about the transaction involved in the issue, nor is any presumption indulged against him on account of his failure to produce them, though, when a witness possesses peculiar knowledge, supposed to be favorable to the party who can produce him, his failure to produce such witness, if unexplained, is ground of suspicion. A charge which is correct as applied to the particular case, though stating a general principle too broadly, or which has a tendency to confuse or mislead the jury, is not a

reversible error; but such a charge may properly be refused. When a charge asked and refused is ambiguous, or susceptible of two constructions, that construction will be adopted which is least favorable to the party asking it.. Curter v. Chambers, S. C. Alá., Dec. Term, 1885-6.

15. EVIDENCE-Reputation Former Admissible — Rule as to-Mynatt resided in Johnson county for a number of years, but for four years preceeding the trial, he had resided in a different county, on the trial, several witnesses who had resided in Johnson county and had known Mynatt there, after qualifying themselves to testify to Mynatt's reputation while residing in Johnson county, were permitted to testify that his reputation for truthfulness while he resided there was bad. Objected to on the ground that the witnesses could not state the reputation of Mynatt at the time they 'testified. Held, That the objection was not good; that his former reputation, considering the time he had resided in a different neighborhood, and his mature age at the time he lived in Johnson county, were facts which the jury might consider in determining whether his evidence was entitled to credence. The law does not presume, under these circumstances, that a person of mature age had reformed so as to acquire a different reputation. Mynatt v. Hudson, S. C. Tex., Austin Term, 1686; 1 Tex. Ct. Rep. 696.

16.

Written Contract-Modification of, by Parol-By New Agreement With New Consideration-Instruction.-The rule that parol evidence is inadmissible to add to or vary the terms of a written contract precludes evidence of the negotiation which preceded, or conversation which accompanied, the making of it, unless necessary to explain ambiguous provisions, the meaning of which cannot be ascertained with certainty by an inspection of the written instrument. A written contract may be modified by a subsequent new and distinct oral agreement upon a new consideration, but in this case the oral evidence of the bargain, and of the explanation accompanying the execution of the written contract, instead of showing a modification of the writing, tends to show simply that the writing never expressed the real agreement of the parties, and plaintiff allowed it to stand unaltered, on the assurance of Martin that a delivery of a certain less number of brick per month would be accepted in lieu of the number called for by its terms. Held, that the court erred in refusing to charge that what took place between the parties previous to or at the time of the execution of the written contract was inadmissible to vary or modify it, and that a new agreement must be shown. The court also refused to charge that if the evidence on which the alleged modification of the written contract depends, is only of what took place contemporaneous with the execution of the written contract, then no modification was shown. Held error. Corse v. Peck, N. Y. Ct. App., June 1, 1886; 7 N. East. Rep. 810.

17. EXECUTION-Sale-Waiving Defects-NoticeStatute. The acceptance and retention by an execution debtor of the surplus realized from the judicial sale of his real estate amounts to a waiver on his part of all irregularities in an otherwise voidable sale. A statute requiring the sheriff to give notice of execution sale, and prescribing the manner thereof, is directory merely, and his neglect to follow literally the statutory directions will

.

not invalidate the title of an innocent purchaser. Huffman v. Gaines, S. C. Ark., June 26, 1886; 1 S. W. R. 100.

18. FRAUD-Statute of Frauds-Guaranty Embodied in Lease-Consideration.-Where a contract of guaranty is entered into contemporaneously with the principal contract, and is either incorporated in the latter, or so distinctly refers to it as to show that both agreements are parts of an entire transaction, the statute of frauds does not require a consideration to be expressed in the guaran ty distinct from that expressed in the principal contract. This principle applied to a guaranty embodied in a written lease. Highland v. Dresser, S. C. Minn., July 1, 1886; 29 N. W. Rep. 55. Leasehold Interests. Contracts for the sale of leasehold interests, although technically only chattel interests, are within the statute of frauds, and therefore an oral contract which is entire, and includes a sale of buildings and machinery, and of the leasehold interest, is within the statute. The English and Rhode Island statute compared. The omission in the Rhode Island statute, of the words, "or any interest in or concerning them," does not change its meaning. See also, Pub. St. R. I., c. 24, § 9. Potter v. Arnold, S. C. R. 1., 1886; 5 Atl. Rep. 379.

19.

20. HUSBAND AND WIFE-Wife, Creditor of Husband-Creditor's Action by Wife-Res Adjudicat a -Evidence Necessary to Make Case-Subsequent Divorce-Effect of-Lien on Judgment.-Plaintiff recovered five judgments in county court against John Carpenter, her husband, for installments of income due her on articles of separation, in which she had agreed to support herself, and sign all deeds; he to pay her a stated sum each month. Upon the trial of the several actions the validity of the agreement of separation, and the status of plaintiff as a creditor of her husband, was litigated between the parties thereto, and was in each action decided in her favor. In this action to set aside as fraudulent,certain conveyances of real estate executed by him to defendants, held, that the questions were res adjudicata, and defendants were precluded from raising them in this action. That the plaintiff, by putting in evidence the judgment rolls, the executions returned unsatisfied, and the agreement of separation, and proving that the conveyances assailed were voluntarily made with intent to defraud his creditors, with the knowledge of the grantees, made a case which justified the court in rendering judgment for her. The plaintiff had, subsequent to the separation, procured a decree for an absolute divorce from her husband, with no provision for her support. Held, that this did not affect her pecuniary claims on him, if secured by legal obligations, either for dower or to an allowance by way of alimony. The court below declared the judgment to be a lien upon the land in question for the several installments due, but not in judgment when the action was commenced. Held, error; that the court was limited to the installments in judgment, and that this judgment should be corrected to that extent. Carpenter v. Osborne, Ct. of App. N. Y. June 15, 1886; 1 N. East. Rep. 823.

21. INSURANCE-Fire Insurance Policy- When it Becomes a Liquidated Demand-City Ordinance Becomes Part of the Insurance Contract.-Wher a building insured is so destroyed by fire as that it ceases to be within the meaning of the law

building, then, under Revised Statutes, Art. 2971, the policy evidences a liquidation against the company issuing it for the full sum for which the policy was issued. Where the parties contracted in view of a city ordinance which prohibited the reconstruction or repair of a wooden building, situated in the fire limits of the city, destroyed by fire to the extent of one-third its value, unless by leave of the common council, and this leave had been refused, the fire must be deemed the proximate cause of the loss, and the loss total. Hamburg, etc. Co. v. Carlington, S. C. Tex. Austin Term, 1886; 1 Tex. Ct. Rep. 698.

22. JURISDICTION

- Federal Jurisdiction State Decisions-Public Officers-De Facto-No Office Existing Agency- Ratification- Original Authority. The federal courts will follow the decisions of the State tribunals in the construction of its constitution and laws, where no federal question arises, and no principle of commercial or general law is impaired. There can be no authority to act as a public officer de facto, where there could be no such officer de jure by reason of the nonexistence of the office. No ratification can be affected of the act of an alleged public body which was not capable to act for the community; ratification presumes some original authority. Norton v. Shelby County, S. C. U. S. May 10, 1886; 22 Rep. 193.

23. LIEN.-Will-Laches.-Where a person's money is invested in land without his consent he may have an equitable lien on the land for its repayment; but where he has full knowledge and notice that his money formed a portion of the purchase price of the land, his silence during many years, after notice of the investment of his money, will defeat his right to the lien on the property purchased therewith. Where the owner of the property purchased partly with money of another dies testate and bequeathes the property to another, and a certain sum of money to him who furnished part of the purchase price, the latter's silence after he had knowledge of the provisions of the will is decisive. By his own laches he has deprived himself of any right or benefit which he might have had if he had exercised proper diligence. Where his silence had induced the devisee in remainder to believe that plaintiff fully acquiesced in the provisions of the will, it is now too late to set up any claim he might have had to the estate if in season he had insisted upon it; and he is entitled only to the bequest named in the will. McGivney v. Mc Givney, S. J. C. Mass. June 30, 1886. 2 N. Eng. Rep. 533.

24. MERGER.-Trust-Particular

Estate-Rever

sion. Where a corporation, while holding a leasehold interest in land in trust to be used for church purposes, takes a conveyance from the reversioner, there is a complete merger, the trust is extinguished, and a subsequent deed from such corporation conveys the fee. Bennet v. Methodist etc. Trustees, Ct. App. Md. June 24, 1886. 5 Atl. Rep. 291.

25. MORTGAGE.-Chattel Mortgage-Crops to be Grown on Land of Mortgagor-Registration-Notice.-Minnesota Linseed Oil Co. v. Maginnis, 32 Minn. 193, S. C. 20 N. W. Rep. 85, followed, as to the validity of a chattel mortgage of crops to be grown upon land in the possession of the mortgagor. Under sections 2, 3, c. 39, Gen. St. 1878, as the former section is amended in chapter 38, Laws

26.

27.

1883, a chattel mortgage on crops to be grown on land of mortgagor, when filed in the proper office in the town, city, or village in which the land upon which the crops are to be grown lies, is full and sufficient notice to all persons interested,of the existence and conditions thereof. Miller v. Chappel, S. C. Minn. July 9, 1836; 29 N. W. Rep. 52.

Foreclosure.-Where a mortgage or deed of trust is but an incident to the debt which it is given to secure, and can have no existence as an obligation or conveyance independently of the debt, but is merely an aid or instrumentality in the collection of the debt, a statute of limitations which bars the debt,bars the right to foreclose the mortgage also. It is not necessary that mortgages or deeds of trust should be named in the statute. (Hyman v. Bayne, 83 Ill. 256, and Gridley v. Barnes, 103 Ill. 216, followed.) McMillan v. McCormick, S. C. Ill. May 15, 1886. 4 West R. 210. Foreclosure-Parties-Adverse Claimant -Prior Fraudulent Conveyance.-Upon a petition to foreclose a mortgage the mortgagee cannot make an adverse claimant to the estate a party defendant for the purpose of trying such adverse claim, when there is no privity between the mortgagee and the claimant. The petition alleged that the mortgagor, prior to the execution of the mortgage, conveyed the premises to A., without consideration, to shield the property from attachment by the creditors of the mortgagor. Held, that the prior deed being good as between the parties by R. L. § 4155, could not be attacked by petition to foreclose such subsequent mortgage. Kinsley v. Scott, S. C. Vt. Aug. 7, 1886. 5 Atl. R. 390.

28.

Sale-Notice-Affidavit of Publication-An affidavit of the publication of a notice of a mortgage sold in foreclosure proceedings, by advertisement, was made by appending to a copy of the notice, as originally published, a copy of a notice of adjournment, stating that "the foregoing sale is adjourned until the sixth day of October, 1864." The original notice designated September 29, 1864, for the sale. To these copies an affidavit was appended, stating that "the above notice of mortgage foreclosure sale" was printed for the period of six weeks, "the last publication being made on the twenty-eighth day of September, 1864; and that said notice of adjournment of said sale was printed and published in said paper on Wednesday, the fifth day of October, 1864." The sale was made on the sixth day of October. This affidavit, being received in evidence as proof of the publication, construed as showing the publication of the fifth day of October of only the notice of adjournment, and not of the original notice also; and, the notice of adjournment not containing all the essential requisites of a notice of sale, the publication so made was insufficient to authorize a sale. Such proof considered as overcoming any prima facie evidence of the regularity of the notice which may attach to the sheriff's certificate of a sale by virtue of chapter 112, Gen Laws 1883. Sanborn v. Potter, S. C. Mich., July 15, 1886. N. W. R. 64.

29

29. PARTNERSHIP-Dissolution by Death-Powers and Liability of Survivor.-On the dissolution of a partnership by the death of one of its members, the surviving partner is entitled to the exclusive right of possession of the partnership property, and the courts will not interfere with his management so long as he continues faithful to his trust;