pass, and therefore all that was said about other remedies was obiter. But it was distinctly intimated that the difficulty did not arise except concerning property actually or constructively in the possession of the court, and while litigation was still pending. Property under mesne process is in some cases the only basis of jurisdiction, and it is often subject to disposition for various purposes pendente lite, so that it may not only be discharged from seizure but may sometimes be dealt with otherwise. This creates at least a colorable, if not a real distinction, and may give some force to the claim that it is in the custody of the court, although we are not prepared to say the distinction is usually in fact very important. The case of Buck v. Colbath is significant in confining the doctrine of conflict to interference with the action of courts, and in holding that a marshal who levies on the property of a stranger is in no sense acting under process unless the writ directs the seizure of the specific property taken. The distinction between writs against specific property and those against undescribed property of named persons is made the turning point. And it was said emphatically that the plaintiff in error is mistaken when he asserts that the suit in the Federal court drew to it the question of title to the property, and that the suit in the State court against the marshal could not withdraw that issue from the former court. No such issue was before it, or was likely to come before it, in the usual course of proceeding in such a suit.

In the subsequent case of McKee v. Rains, 10 Wall. 22, it was held that a trespass suit by a third person against a marshal could not be removed into a court of the United States, because his levy could not be regarded as made under any authority of the United States. This is certainly equivalent to holding that he is no better off than if he had no process, and it is difficult to conceivo how it leaves any room for holding that a disturbance of his wrongful possession is an interference with the court.

It would not be, we suppose, competent for Congress or any State, even by positive enactment, to deprive the owners of property of the right to vindicato their title by legal process in a judicial trial. There is no legislation which provides any method whereby Mrs. Heyman could secure her rights in the United States court against Covell. Unless she has such a remedy in due form of law her only resort must be to the State courts, and this is recognized in McKee v. Rains as well as in Slocum v. Mayburry, 2 Wheat. 2. It was indeed held in Freeman v. Howe, that equity would relievo in that particular instance, and was said that it would in any case of wrongful levy on a third person's goods. If this were so, the case would not be difficult of redress. But it has since been held that there is no such remedy. In Van Norden v. Norman, 99 U. S. 378, a bill in equity was filed in the Circuit Court of the United States for the district of Louisiana to secure protection and restoration against a marshal's levy under an execution from the same court, and the Circuit Court made such a decree. But on appeal to the United States Supreme Court it was held that replevin was the proper remedy to regain possession, or some similar proceeding in the nature of a commonlaw replevin, and that equity had no jurisdiction. The decree was reversed for want of jurisdiction, without prejudice to an action at law or other redress.

If there is no remedy by bill in equity then it follows that a common-law action is the proper redress, and such action can only be brought in a court of the United States where the parties are such as to confer jurisdiction; and in such cases the statutes have made the jurisdiction concurrent with power of removal under certain circumstances. In the present case it does not appear that suit could have been brought anywhero but in the State court, and the case has gone to judgment in the usual course. We think there was no

ground for refusing redress to plaintiff, and that she was entitled to judgment on the finding.

Judgment must be reversed with costs and judgment entered for plaintiff with nominal damages of six cents.

Cooley, J., dissented.

NEW YORK COURT OF APPEALS ABSTRACT.

ARBITRATION-REFUSAL OF ARBITRATORS TO HEAR TESTIMONY — MISCONDUCT VITIATING AWARD JUDGMENT OF ARBITRATORS AS TO THEIR POWERS REVIEW

ABLE-CONSTRUCTION OF SUBMISSION. - (1) In an arbitration between plaintiff and defendant, plaintiff offered to produce certain witnesses named, in order to reconcile contradictory statements made by plaintiff and defendant, but was met by a refusal on the part of the arbitrators to receive any testimony except the statements of the parties, they construing the submission to limit their power to the act of passing upon the statements of the parties. Plaintiff did not offer to show what the witnesses offered would testify to. Held, that if the arbitrators were erroneous in the construction of the submission, their refusal to receive the testimony offered was such misconduct as would vitiate their award and that plaintiff had not forfeited his rights by a failure to show what the proposed witnesses would testify to. The refusal of an arbitrator to examino witnesses is sufficient misconduct on his part to induce the court to set aside his award, though he may think he has sufficient evidence without them. Phipps v. Ingram, 3 Dowling, 669. In Van Cortlandt v. Underhill, 17 Johns. 405, it was held that if the arbitrators refused to hear evidence pertinent and material, it will vitiate the award. In Fredicar v. Guardian Ins. Co., 62 N. Y. 392, it is said that if an arbitrator refuses to hear competent evidence on the merits, his award will be set aside. (2) The decision of arbitrators as to their powers was not conclusive. No such question was submitted to them. It is for the court to judge whether arbitrators have exceeded their powers or refused to exercise them. The general rule that their decisions are not reviewable on the mere ground that they are erroneous, is applicable only to their decisions on matters submitted to them. The submission is the foundation of their jurisdiction, and they are not the exclusive judges of their own powers. (3) A submission contained this: "The arbitration shall be conducted and decided upon the principle of fair and honorablo dealing between man and Held, not to justify the arbitrators in refusing to hear testimony other than the statements of the parties. Judgment reversed. Halstead, appellant, v. Seaman. Opinion by Rapallo, J. [Decided Sept. 21, 1880.]

man.

INSURANCE-LIFE POLICY-INSOLVENT COMPANYNON-PAYMENT OF PREMIUMS. In this case appellants represented claims against an insolvent insurance company in the hands of a receiver, upon policies which wero running at the date of the appointment of the receiver, and upon which premiums had been paid to some time subsequent to such date. The persons insured by such policies died subsequent not only to the appointment of tho receiver, but subsequent also to the time to which premiums had been paid. It appeared that the receiver had given express notice that he would receive no more premiums. Held, that these claims were within the principle laid down in People v. Security Life Ins. Co., 78 N. Y. 129. The policies were in full force at the time when the insured persons died. The further payments of premiums were excused by the failure of the company, as well as by the express notice of the receiver that he would receive no more premiums. For the purpose of enforcement, the policies were just as effectual as if the premiums had

been actually paid. They were not, properly speaking, death claims, but claims for damages upon policies running at the appointment of the receiver; and the rules laid down in the case cited furnish an accurate and just basis for the computation of such damages. Order affirmed. Matter of Attorney-General v. Guardian Mutual Life Insurance Co. Opinion by Earl, J. [Decided October 15, 1880.]

In

INSURANCE-LIFE POLICY - INSOLVENT COMPANY RIGHT OF RECEIVER TO APPEAR IN PROCEEDING TO DETERMINE PRIORITIES - CONSTITUTIONAL LAW OBLIGATION OF CONTRACT- REGISTERED POLICIES-ANNUITIES COMPUTATION OF VALUE FORFEITURESUNCONSCIONABLE AGREEMENT — USURY.-(1) In a proceeding solely to determine the rights of several claimants to the funds of an insolvent insurance company in the hands of a receiver, held that the receiver had a right to appear and file exceptions to the report of the referee. The receiver represents not only the company, but he stands as a trustee of its funds for all its creditors. He is supposed to be impartial between the several claimants upon the funds; and yet he may intervene to see that no injustice is done to any one and that the funds are properly protected, disposed of and administered. Bookes v. Hathorn, 78 N. Y. 222. such cases the claimants do not all usually appear before the referee by counsel. They may choose to rely upon the protection the receiver as their trustee will give them, and that he may afford them such protection he may appear before the referee, file exceptions to his report and appeal from any order or decree made at any stage of the proceedings affecting the funds in his charge. (2) A life insurance company commenced business in 1862 and continued business until 1877. For several years previous to the last date it issued what were named registered policies under Laws 1866, chap. 576, 1867, chap. 508, and 1869, chap. 902, which policies were, under said statutes, entitled to priority of payment over other policies out of a fund created by premiums upon such registered policies. Held, that the statutes named were not unconstitutional as impairing the contract between the ordinary policy-holders and the company. It is clear that the obligations of the company were in no way interfered with or impaired. The company remained liable to discharge all its obligations just as it made them, and precisely according to their terms. The holders of non-registered policies had no lien upon the property of this company at the time of the passage of these acts, and they were therefore deprived of no lien. Laws abolishing imprisonment for debt and distress for rent, and increasing tho amount of property exempt from execution, have been held not to impair the obligation of contracts previously existing. Laws could be passed giving servants a preference of payment in all cases out of the estates of their employers without impairing the obligation of other contracts entered into with such employees. So the Legislature could, for reasons of public policy and jus. tice, give classes of creditors preference over other classes, so long as creditors not preferred were left with substantial remedies. Here the holders of registered policies were given a preference of payment upon a fund substantially created with money contributed by them. The special fund created for their benefit could never, in the ordinary management of a company, be greater than the money contributed by such policyholders, and it seems absurd to say that a provision that they should havo payment out of such fund in preference to other policy-holders violated the obligation of any contract within the meaning of the Constitution. A debtor does not violate the obligation of his contracts with other creditors by pledging to a class of his creditors a portion or all of his property for the purpose of securing their claims, and the same must be true of an insurance company which sets apart

a portion of its assets in pursuance of law for the purpose of securing a certain class of its creditors. (3) In computing the value of annuity bonds issued by the insurance company, the Northampton table with interest at six per cent (People v. Security Life Ins. Co., 78 N. Y. 114) should not necessarily be followed. The true rule to measure the value of such annuities is to take such a sum as will, for the remainder of the life of the annuitant, purchase an annuity for the same amount. In the case of running policies in insolvent companies, the court has held that the amount of damage to a policy-holder is the value of the policy destroyed, and that such value is the sum, which, together with the same future premiums, will procure another policy in a solvent company. So the value of an annuity bond binding the company to make certain annual payments during life is such a sum as will purchase a similar bond in another solvent company for the remainder of life. Nothing short of that will give the party whose bond is destroyed full indemnity. It would do exact justice between an annuitant and the company to compute the value of his annuity by the same table which was used when he purchased the annuity. It would not be just to take a basis of six per cent interest, when a basis of four or four and a half per cent, requiring a larger gross sum, was used in the purchase. (4) A provision in paid-up policies issued in lieu of other policies-upon which notes had been given for portions of the annual premiums, that in case the interest should not be paid as agreed upon any note thus given, the policy should become void and the company not be liable for any part of the sum assured, held not to be oppressive, unconscionable or usurious. Such contracts are no more unconscionable or oppressive than subscriptions to stock upon condition that the stock shall be forfeited for non-payment of calls. In such case a large amount of stock inay be forfeited for non-payment of the last call, and that a small one, and yet a court of equity would not relieve against the forfeiture Sparks v. Liverpool Water Works, 13 Ves. 429; Prendergast v. Turnton, 1 Y. & C. (N. R.) 98, 110 to 112. See, also, Andrews v. St. Louis Hope Ins. Co., 5 Bigelow, 527; Martin v. Etna Life Ins. Co,, id. 514; Patchen v. Phoenix Mut. Life Ins. Co., 44 Vt. 481; Knickerbocker Life Ins. Co. v. Vashti, 8 Ins. L. J. 349; Nettleton v. St. Louis Hope Ins. Co., 6 id. 426; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 742. There was no usury because in addition to the seven per cent upon the notes, the forfeiture was also exacted in case of non-payment of the interest. The policy was not affected by any usury, because it was not a contract for the loan or for borrowing of any money. Even the note would not be usurious if it contained a stipulation that the policy should be forfeited by default in payment of the interest, because the maker of the note could avoid the forfeiture by payment of the interest. Burtow's case, 5 Co. 69. In 2 Pars. on Cont. 393, it is said: "An agreement to pay more than intefest, by way of penalty for not paying the debt, is not usurious, because the debtor may relieve himself by paying the debt with lawful interest." (5) One P. paid 100,000 francs for an annuity of 18,388 francs, payable each 22d of December, during life. Annuities were paid in 1874, 1875 and 1876. The receiver was appointed in March, 1877, and P. died in November, 1878. Held, that the annuity was not to be valued in favor of P.'s representative, at what the expectancy was worth when the receiver was appointed, but at what the bond was shown to be actually worth by the death of P. The failure of the company did not increase the amount of the damages or the value of the bond. Order modified and affirmed. Matter of Attorney-General v. North America Life Insurance Co. Opinion by Earl, J. [Decided Sept. 28, 1880.]

MASTER AND SERVANT-ON WHAT LIABILITY OF MASTER FOR INJURY TO SERVANT DEPENDS - SUPERIN

TENDENT PERFORMING DUTY OF OPERATIVE FELLOW

On

SERVANT. — The liability of a master to his servant for injuries sustained while in his employ, by the wrongful or negligent act of another employee of the same master, does not depend upon the doctrine of respondeat superior. If the employee whose negligence causes the injury is a fellow-servant of the one injured, the doctrine does not apply. Conway v. Belfast, etc., Ry. Co., Irish R., 11 C. L. 353. A servant assumes all risk of injuries incident to and occurring in the course of his employment, except such as are the result of the act of the master himself or of a breach by the master of some term, either express or implied, of the contract of service, or of the duty of the master to his servants. But for the mere negligence of one employee the master is not responsible to another engaged in the same general service. The liability of the master does not depend upon the grade or rank of the employee whose negligence causes the injury. A superintendent of a factory, although having power to employ men or represent the master in other respects, is, in the management of the machinery, a fellow-servant of the other operatives. Albro v. Agawam Canal Co., 6 Cush. 75; Wood's Mast. & Servt., § 438; also §§ 431, 436, 437. the same principle, however low the grade or rank of the employee, the master is liable for injuries caused by him to another servant if they result from the omission of some duty of the master which he has confided to such inferior employee. Flike case, 53 N. Y. 549. Tho liability of the master depends upon the character of the act in the performance of which the injury arises, without regard to the rank of the employee performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance. The converse of this necessarily follows. If the act is one which pertains only to the duty of an operative, the employee performing it is a mere servant, and the master, although liable to strangers, is not liable to a fellow-servant for its improper performance. The doctrine in Mullan v. Phila. & S. M. S. Co. 21 Am. Rep. 2, sustains this proposition. Accordingly, where B. who represented the employer as financial agent or superintendent, overseer or manager, and stood in his place, held, that he did so only in respect to these duties, which the employer had confided to him; as to other acts about the employer's place, he was a mere employee. And where he turned on steam he performed the act of a mere operative, and the employer would not be liable to a fellow-employee for an injury caused by that act. Judgment reversed. Crispin v. Babbitt, appellant. Opinion by Rapallo, J.; Folger, C. J., Andrews and Miller, JJ., concurred; Earl, Danforth and Finch, JJ., dissented. [Decided Sept. 21, 1880.]

WILL-SERVICES TO TESTATOR PAID BY LEGACY — COURT OF APPEALS WILL NOT REVERSE ON FACTS — EVIDENCE-PAROL, NOT ADMISSIBLE TO SHOW TESTATOR'S INTENTION AS TO LEGACY PRESUMPTIONS AS TO LEGACIES.- (1) The doctrine in Reynolds v. Robinson, 64 N. Y. 589, that where an agreement is made between two parties that compensation for services rendered by one of them to the other shall be made by a provision in the will of the latter, and a provision is made sufficient only to compensate in part for the services, the party rendering them has, after the death of the other, a cause of action against his representatives for the balance remaining due over and above the testamentary provision, reaffirmed. (2) This court, in reviewing the determination of a trial court upon the facts, is confined to the inquiry whether there is any evidence to sustain it. It does not pass upon the weight or preponderance of evidence, nor in a case where opposing inferences may be drawn can it review a finding, because in its judgment the inference de

duced by the trial court is improbable or more unlikely to be true than the opposite one. (3) In an action against the representative of an estate for services rendered testator by plaintiff's wife, after her marriage, it was claimed by defendant that certain legacies to such wife and her daughter, which were for a less amount than the value of the services, were in payment of such services under an agreement between the testator and the wife. The legacies were given "after payment of debts." Defendant offered to show by the scrivener who drew the will, that at the time it was drawn testator stated that the legacies were given in payment of services rendered by the wife, in compliance with a promise. Held, that the testimony was inadmissible. The general rule is, that the declarations of a testator before, contemporaneously with, or after the making of a will, are inadmissible to affect its construction. 1 Redf. on Wills, 538. In Mann v. Executors of Mann, 1 Johns. Ch. 231, Chancellor Kent said that the rule was well settled that parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of a testator, except in two cases, viz., where there is a latent ambiguity arising dehors the will as to the person or subject meant to be described, or to rebut a resulting trust. A legacy implies a bounty, and not a payment, and to admit extrinsic evidence to contradict this would be to contradict by oral evidence the legal effect of a written instrument and to violate the statute of wills, for then, as Lord Chancellor Talbot said, in Fowler v. Fowler, 3 P. Wms. 353, "the witness and not the testator would make the will." See, however, as to presumptions, Chancy's case, 1 P. Wms. 408; Hooley v. Hutton, 1 Bro, C. C. 390; Hurst v. Beach, 5 Madd. 351; Trimmer v. Bayne, 7 Ves. 508; Osborne v. Duke of Leeds, 5 id. 369; Hall v. Hill, 1 Dr. & War. 94; 1 Redf. on Wills, 646. In this case no presumption arose that the legacies to the wife and daughter were intended as a satisfaction of the debt owing by testator to the plaintiff, for several reasons: first, the legacies were given "after payment of debts" (Boughton v. Flint, 74 N. Y. 476); second, they were of less amount than the debt (Cranmer's case, 2 Salk. 508; Graham v. Graham, 1 Ves. Sen. 263; Atkinson v. Webb, 2 Vern. 478); third, the debt was unliquidated (Williams v. Crary, 5 Cow. 368; S. C., 4 Wend. 449); and fourth, the legacies were not given to the creditor, but to a third person (Clark v. Bogardus, 12 Wend. 67). See, also, Eaton v. Benton, 2 Hill, 576; Phillips v. McCombs, 53 N. Y. 494. Judgment affirmed. Reynolds v. Robinson et al., appellants. Opinion by Andrews, J. [Decided Sept. 21, 1880.]

MASSACHUSETTS

SUPREME JUDICIAL COURT ABSTRACT. SEPTEMBER, 1880.

OF

BANK RIGHT TO APPROPRIATE SECURITIES THIRD PERSON DEPOSITED BY DEBTOR AS HIS OWN.

Plaintiff placed a promissory note, owned by him, made and indorsed by third persons, in the hands of J. for collection. J. deposited the same with the defendant bank where he did business, for collection, giving the bank no notice as to his relation to the note. The bank collected the note and applied the proceeds to the account of J., against whom it held an unrecovered indebtedness. Thereafter J. became bankrupt and the defendant settled with his assignee in bankruptcy. As soon as plaintiff learned of the collection of the note and the disposition of its proceeds, about a year after such settlement he demanded such proceeds from defendant. Held, that plaintiff was not entitled to such proceeds. It has long been settled that a banker who has advanced money to another has a gen

eral lien on all securities of the latter which are in his hands for the amount of his general balance, unless such securities were delivered to him under a particular agreement limiting their application. Bank of Metropolis v. New England Bank, 1 How. 234, and 6 id. 212; Sweeney v. Easter, 1 Wall. 166. One who takes a negotiable promissory note before maturity as security for a pre-existing debt is, by the law of this State, a holder for value. Culver v. Benedict, 13 Gray, 11. Such being the law, the defendant received the note, undertook its collection and applied the proceeds; and the unknown owner of it, who gave it to J. with all the appearance of title, cannot be permitted to defeat the right of the defendant, who, long before it had knowledge of the claim, had applied the same to the payment of J.'s debt and settled with his assignee in bankruptcy. See Locke v. Lewis, 124 Mass. 1. Wood v. Boylston National Bank. Opinion by Colt, J. NEGLIGENCE-DANGEROUS

ARTICLE-GAS-CON

TRIBUTORY NEGLIGENCE-AFFIRMATIVE PROOF OF WANT OF. In an action for injury to plaintiff, a child of five years, from the inhalation of gas escaping from defendants' pipes, it appeared that plaintiff and his mother slept in a room adjoining a court in which the pipes from a crack in which the gas escaped were laid; that the mother was found dead and plaintiff insensible; that the accident took place in the night; that there were no gas fixtures in the room occupied by plaintiff, and there was no evidence that the mother had notice of the escaping gas or was conscious of its presence in time to take precautions against its deleterious effect; that on the day before the accident there was no smell of gas in the court; that the mother was a sober and prudent woman. Held, that there was evidence sufficient to sustain a verdict in favor of plaintiff for injury by the escaping gas. The burden was upon the plaintiff to show that he and his mother were in the exercise of due care in respect to the occurrence from which the injury arose. But this, as was said in Mayo v. Boston & Maine Railroad, 104 Mass. 140, although in form a proposition to be established affirmatively, need not be proved by affirmative testimony addressed directly to its support. It may be shown by evidence which excludes fault. And in the case at bar, there was nothing which excluded the inference that both mother and child on that night went to bed and to sleep in the usual manner with nothing to indicate that there was unusual exposure to injury, and that they were suffocated in their sleep by the gas which escaped from the defendant's pipes. If this were so, they were clearly in the exercise of such care as prudent people ordinarily use under circumstances of similar exposure to injury from hidden and unsuspected causes. Craig v. New York, etc., Railroad, 118 Mass. 437; Commonwealth v. Boston & Lowell Railroad, 126 id. 61; Hinckley v. Cape Cod Railroad, 120 id. 257. And there was sufficient evidence of defendant's negligence to make it responsible. Boston Gas-Light Co. Opinion by Colt, J.

Smith v.

TRADE-MARK-ARABIC NUMERALS MAY BE.-Plaintiff used as a trade-mark for many years upon hosiery the figure of an eagle surmounting a wreath formed of the branches of the cotton plant. The wreath inclosed the words "Lawrence Manufacturing Company' printed in a circle, having underneath it the word "trade-mark," and, below all, the figures "523," printed in large hollow block numerals. Before this, the plaintiff had used an eagle and scroll in combination with other numerals as a trade-mark upon the same grade of hosiery. Defendant stamped hosiery made by it with a device consisting of an eagle surmounting a double circle or garter, on which were printed the words "extra finish iron frame" and beneath the figures "523," printed in large hollow block numerals of the size and description used by the

plaintiff and occupying the same position with reference to other parts of the device. Held, under a statute protecting a person who uses any peculiar name, letters, marks, device or figures upon an article manufactured or sold by him, to designate it as an article manufactured by him, that defendant's stamp was a violation of plaintiff's trade-mark entitling plaintiff to protection. Lawrence Hosiery Manufac turing Co. v. Lowell Hosiery Mills. Opinion by Colt, J.

WISCONSIN SUPREME COURT ABSTRACT. OCTOBER, 1880.

CONSTITUTIONAL LAW-SALARY OF JUDICIAL OFFICER RIGHT OF LEGISLATURE TO CHANGE TERM AND COMPENSATION.-An act of the Legislature creating a county court of limited civil and criminal jurisdiction, and fixing the salary of the judge, payable out of the county treasury, may be amended so as to change the salary of judge of such court during the term for which he has been elected; and the constitutional provision which forbids the " compensation of any public officer" to be "increased or diminished during his term of office." Constitution, art. 4, § 26, is inapplicable to such a case. It is well settled that, in the absence of any constitutional prohibitions or affirmative provisions fixing the term of office of any officer, or his compensation, the Legislature may change such term or compensation, and such change of term or compensation will apply as well to the officers then in office as to those to be thereafter elected. The authorities fully establish this point. Butler v. Pennsylvania, 10 How. (U.S.) 402; Co. Com'rs v. Jones, 18 Miun. 199; Taft v. Adams, 3 Gray, 126; Connor v. New York, 5 N. Y. 285; People v. Barnard, 27 Cal. 470; In re Bulger, 45 id. 553; Cooley on Const. Lim. 276 and note; Supervisors v. Hackett, 21 Wis. 613; State v. Douglass, 26 id. 428; Hall v. State, 38 id. 89. State ex rel. Martin v. Kalb. Opinion by Taylor, J.

CONTRACT-DURESS

ILLEGAL CONSIDERATIONCOMPOUNDING FELONY RESCINDING OF CONTRACT.— By duress of imprisonment on a criminal charge, with threats of future prosecution if a certain sum of money be not paid him, and promise to dismiss the prosecution on such payment being made, A. induces B. to procure for him negotiable promissory notes for said sum from X., a friend of B., and then causes the prosecution to be dismissed and B. discharged. B. thereupon gives X. his (B.'s) own notes, secured by mortgage, for the same amount, and X. pays his notes to A. when due. B. is not guilty of said offense. The complaint against him fails to charge him with any offense, the warrant on which he was arrested is void on its face, and both complaint and warrant are colorable only. Held, (1) that even if a felony had been charged and committed, the act of X., in giving such notes, would not have rendered him particeps criminis in the attempt to compound the felony; (2) that even if the original transactions were illegal as to all the parties yet after it has been fully performed, and A. has received the avails of it, he might be compelled by B. to account, on the ground of its illegal character; (3) that it is immaterial that X. paid his notes after the duress had ceased, such payment not having been induced by any act of B. after the duress had ceased; (4) that if B., after his release from duress, might by suit have restrained payment of the money by X. to A., and rescinded the whole contract, yet his failure to do so is no defense to his action against A. for the amount. Kiewert v. Rindskopf, 46 Wis. 481; Armstrong v. Toler, 11 Wheat. 258; McBlair v. Gibbes, 17 How. 236; Brooks v. Martin, 2 Wall. 70; Planters Bank v. Union Bank, 16 id. 483; Buehr v. Wolf, 59 Ill. 470; Deanville v. Merrick, 25 Wis. 688. Heckman v. Swartz. Opinion by Orton, J.

SALE OR RETURN - EVIDENCE OF SALE.- Where A takes to his own house a horse of B, intending to purchase it if satisfactory, with an understanding that he is to use it by way of trial until a specified time, and then, if not satisfied, bring it back to B, or if too busy for that, to let it stand unused until B comes for it, and A continues to use the horse after the time so fixed, and then refuses to buy and offers to return it, this is evidence for the jury on the question whether A, at the time so fixed, had determined to retain the horse, and is therefore liable for the price, but is not conclusive evidence. In any view of the case the evidence proved what is denominated "sale on trial" or "approval," or a "sale or return." In such cases the sale is not consummated, and the title remains in the vendor after the delivery and until the approval is signified by the vendee, or until he so conducts himself with regard to the property that the law will presume that he has approved of the property and is satisfied to keep it as his on the terms agreed upon. See Benjamin on Sales, § 595; Mowbray v. Cady, 40 Iowa, 604; Hunt v. Wyman, 100 Mass. 198. Kahn v. Klabunde. Opinion by Taylor, J.

10WA SUPREME COURT ABSTRACT.

OCTOBER, 1880.

CONFLICT OF LAW-UTAH DIVORCE WITHOUT JURIS

DICTION INVALID-PAROL EVIDENCE SHOWING WANT

OF JURISDICTION.-In an indictment for adultery the defendant set up in bar a Utah divorce. The prosecution offered to prove by parol facts showing that the Utah court had no jurisdiction. The decree of the Utah court did not on its face show that it had jurisdiction. Held, that the evidence was competent and if the facts were proved the divorce was no defense. It has been held, in an action on a judgment or decree rendered in another State, that it was competent to establish by parol that the court had no jurisdiction. Lowe v. Lowe, 40 Iowa, 220; Webster v. Hunter, 50 id. 215. As the evidence offered to be introduced by the State would have tended to show the Utah court did not have jurisdiction, the district court erred in rejecting it. If there was no jurisdiction, the decree was absolutely void and the defendant guilty, if the allegations in the indictment were established to the satisfaction of the jury. Whitcomb v. Whitcomb, 46 id. 437; State v. Whitcomb, 2 N. W. Rep. 970. It was held in People v. Smith, 13 Hum. 414; Hood v. State, 56 Ind. 263; and Letowich v. Letowich, 19 Kan. 451, that a Utah divorce, obtained without jurisdiction, or where neither party was a resident of the territory, was absolutely void. State of Iowa v. Fleak. Opinion by Seevers, J.

MECHANICS' LIEN-INCHOATE RIGHT TO, NOT ASSIGNABLE- ASSIGNMENT OF INSTALLMENT DUE ON CONTRACT.-One who performs work on a contract, for which he is entitled to a mechanics' lien, cannot before he has completed his work assign an installment due for such work so as to transfer the right to file such lien to his assignee, even when by statute the lien is assignable and transferable. As to the assignability of a mechanics' lien, independently of a statute especially authorizing it, there is a conflict of authority. The following authorities hold that the lien of a mechanic or materialman is a personal right and cannot be assigned. Caldwell v. Lawrence, 10 Wis. 33; Pearson v. Tincker, 36 Me. 384; Rollin v. Cross, 45 N. Y. 706. The following authorities hold that where the contractor has completed his contract and filed his claim for a lieu, he may assign both the debt and the lien. Tuttle v. Howe, 14 Minn. 145; Skryme v. Occidental Mill Co., 8 Nev. 219; Davis v. Bilsland, 18 Wall.

659. In Young Stone Dressing Co. v. Wardens St. James Church, 61 Barb. 489, the assignment and lien were sustained, but not on account of any claim for a lien filed by the assignee, for the statement of the case shows that the assignee, upon the trial, discovered tho lien by him filed, as a ground of claim in the action. In Iaege v. Bossieux, 15 Gratt. 83, the contractor assigned his contract before the completion of the work, and it was held this assignment entitled the assignee to the contractor's lien. No case has been found where it is held that the assignment of an installment due before the completion of the work carried with it to the assignee the right to file a claim for and to enforce a lien. "The statute does not contemplate that a contractor or sub-contractor may, from time to time, as the work progresses, file successive liens for work and materials performed and furnished under an entire contract, but he is entitled to acquire only one lien, and for this purpose his claim must be filed within tho time specified in the statute after the completion of the work." Cox v. W. P. R. Co. 44 Cal. 18. See, also, Phillips Mech. Liens, § 324. Merchant v. Ottumwa Water Power Co. Opinion by Day, J.

MORTGAGE.-CHANGE OF FORM OF INDEBTEDNESS DOES NOT DISCHARGE.-A corporation purchased real estate and as a part of the purchase money executed its promissory notes which were secured by a mortgage on such real estate. Thereafter the holder of the notes surrendered them and took other evidences of indebtedness in their place, the surrendered notes being marked paid. The mortgage was not discharged. Held, that the mortgage remained a valid security as between the debtor and creditor and as against a subsequent mortgage given to one who had been, while the change of evidences of indebtedness took place, a director in the corporation, and who had sufficient knowledge of the facts to put him upon inquiry. Bolles v. Chauncey, 8 Conn. 389; Funk v. Branch, 16 id. 259; Brinkerhoff v. Lansing, 4 Johns, 65; Tobey v. Barber, 5 id. 68; Watkins v. Hill, 8 Pick, 522; Pomeroy v. Rice, 16 id. 22; Cole v. Sackett, 1 Hill, 516; Putnam v. Lewis, 8 Johns. 389; Johnson v. Weed, 9 id. 310; Flower v. Ellwood, 66 Ill. 438; 2 Am. Lead. Cas. 245; Paine v. Voorhis, 25 Wis. 526; 2 Jones Mortg. § 924; Sloan v. Rice, 41 Iowa, 46; Farwell v. Grier, 38 Iowa, 83; Port v. Robbins, 35 id. 208; Farwell v. Salspaugh, 32 id. 582; Packard v. Kingman, 11 id. 219. Heivly v. Mattison. Opinion by Day, J.

MINNESOTA SUPREME COURT ABSTRACT.

OCTOBER, 1880.

CONFLICT OF LAW-FEDERAL PROVISION AS TO STANDING OF STATE JUDGMENTS-WANT OF JURISDICTION - DIVORCE. — The requirement of the Federal Constitution, that "full faith and credit shall be given in each State to the records and judicial proceedings of every other State," has no application to decrees and judgments in actions wherein the court has acquired no jurisdiction over the parties to be thereby affected. Bissell v. Briggs, 9 Mass. 462. If, therefore, upon an inspection of the record from another State, want of jurisdiction is disclosed as to a necessary party, the judgment or decree will be held void and of no effect as to such party, even in a collateral proceeding. Hahn v. Kelly, 34 Cal. 391. In determining the question of jurisdiction from such inspection in a case, when the record itself shows a particular mode or manner in which jurisdiction over the person of the defendant was acquired, it will not be presumed to have been obtained in any other way, in the absence of any averment or recital to that effect. Settlemeir v. Sullivan, 97 U. S. 447; Falken v. Gould, 10 Wis. 506. Where a