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statute of limitations. A person cannot say that a will is valid to enable him to take a benefit under it, but invalid so far as regards the interests of those in remainder, who claim under the same will."

This case was decided, it is true, after the passage of the Stat. of 3 & 4Will. IV, but the claim of title and possession by the daughter, being hostile and inconsistent with the title of the heir at law, her possession was adverse under the Stat. 21 Jas. I, as against the lawful title. And being adverse, the heir at law must bring his action within twenty years, or his title will be barred by the statute of limitations. It is better, says the law, that the negligent owner who has omitted to assert his right within the time prescribed by the statute, should lose his rights than one should be disturbed in his possession, and harassed by stale demands after the proof on which his title rests may have been lost or destroyed. But whatever may be the reasons or the policy of the law, twenty years adverse possession is a bar to the title, without regard to the original right of the parties.

The possession being adverse and exclusive in this case, the only remaining question is, whether it has been continuous for twenty years? And this depends upon whether the possession of Doctor Wroth can be united, or in other words tacked to the possession of the appellee.

Now the possession of several distinct occupants of Jand between whom no privity exists cannot, it is true, be united to make up the statutory period, for the reason, if one quits or abandons the possession, the owner will be deemed to be in the constructive possession of the property by reason of his title. The separate successive disseisins in such cases do not aid each other, and their several possessions cannot therefore be tacked, so as to make a continuity of possession.

But we take it to be well settled that where there is a privity of estate between the successive parties in possession, then the possession of such parties may be united so as to make the twenty years required by the statute. And it is equally well settled that such privity may be created by a sale and conveyance and possession under it, as well as by descent. As was said by Tilghman, C. J., in Overfield v. Christie, 7 S. & R. 177: "One who enters upon the land of another and continues to reside on it, acquires something which he may transfer by deed as well as by descent, and if the possession of such person, and others claiming under him, added together, amounts to the time limited by the act of limitations, and was adverse to him who had the legal title, the act is a bar to a recovery." Angell on Lim. 414, 420; Wood on Lim., § 271; Tyler on Eject. 910.

In this case there was an adverse and exclusive possession of the farm in question by Doctor Wroth for thirteen years. He then united with George A. Hanson, the remainderman, in a sale and conveyance to the appellee, who immediately entered and has continued in possession up to the present time; the possession of the appellee, thus added or tacked to the possession of Doctor Wroth, makes a continuous adverse possession of twenty-seven years. The possession under such circumstances is by the statute of limitations a flat bar to the right of the appellants as heirs at law. The judgment below must therefore be affirmed.

Judgment affirmed.

[130 Mass. 121; 119 id. 414; 46 Penn. St. 385; 2 Law, 540; 79 Ill. 233; 9 Eng. 832.]

PARTNERSHIP-TRUSTEE PROCESS-SET-OFF

-DEBT SECURED.

MAINE SUPREME JUDICIAL COURT, FEB. 23, 1884.

DONNELL V. PORTLAND AND OGDENSBURG R. Co., CLARK AND TRUSTEE.*

At the time of the service of the writ on the alleged trustees, they as a firm were indebted to the principal defendant railroad company in the sum of $607.58 for freight. Prior to such service the railroad company gave its note for the payment of $550, amply secured, to one of the members of the firm, payable after such service, but before the disclosure At maturity of the note, by agreement between the payeeand the railroad company,its amount was s credited upon the firm's indebtedness to the company; and the note, with the collateral security, was surrendered to the company. Held, that the trustees should be charged for the whole amount of their indebtedness to the company, without deducting the amount of the note. N exceptions from the Superior Court. The facts are stated in the head-note and opinion of the

ON

court.

W. L. Putnam, for plaintiff.

Haskell & Woodman, for trustees.

VIRGIN, J. The disclosure of Clark shows that the two supposed trustees were and are in fact the sole members of a partnership, although they are not described as such in the writ. Service however was properly made on each of them. Hutchinson v. Eddy, 29 Me. 91; Warner v. Perkins, 8 Cush. 518.

The disclosure also contains a statement of the accounts between the firm and the principal defendant, from which there appeared at the date of the service of the writ a balance of $607.58 in favor of the latter. The supposed trustees were therefore properly charged for that sum by the court below, unless they should have been allowed to deduct the amount of the note given by the principal defendant to Clark individually.

The note was given prior to the service of the writ on the supposed trustees, although it was not then payable; but it matured and was credited on the account by the parties before the disclosure. If it had been due when the writ was served, and Clark had retained possession of it, it might have been set off pro tanto against the firm's indebtedness; for each partner, being liable for his partnership's debts, may discharge them with his individual funds if he so elect. Robinson v. Furbush, 34 Me. 509.

Nor would the mere fact that the note was not due when service was made necessarily prevent the set-off, provided it was given prior thereto, and was payable before the disclosure. To be sure, it is generally true that a trustee's liability depends on the state of facts as it existed when the process was served on him. But this rule is not universally applicable. Some apparent liability may be necessary at that time; but it may be materially modified and even wholly discharged by subsequent events on the score of equitable set-off (Marrett v. Equitable Ins. Co., 54 Me. 537, 539; Smith v. Stearns, 19 Pick. 20, 23), where the exception is variously illustrated by Shaw, C. J.

Moreover it has been held that where a supposed trustee, when the process was served on him, was indebted to the principal defendant, but he had previously at the request and for the benefit of the defendant, in. dorsed without indemnity the latter's note, which, the defendant having failed, he was legally compelled to pay the trustee might be allowed to set off the sum paid on *To appear in 76 Maine Reports, 33.

the note against the apparent indebtedness. Boston T. & S. F. Co. v. Mortimer, 7 Pick. 166. And the reasou assigned was that if the principal had sued the trustee, although the latter's claim not being then due could not be filed in set-off, yet if at any time before judgment, the plaintiff in the suit had become indebted to him for money paid on a liability incurred before the suit, which the plaintiff had failed and was unable to pay, the court would grant him a continuance, that he might bring a cross-action so as to have a set-off of judgments or executious, unless there should appear some special cause for refusing such relief. Were it otherwise a trustee's claims might be prejudiced by being made a party, and having them drawn in to be incidentally settled in a suit between other persons. Hathaway v. Russell, 16 Mass. 476.

This power of setting off judgments has long been practiced by courts. It depends on no positive statutory provision, but is said to rest upon their jurisdiction over suitors and their general superintendence of proceedings before them. Mitchell v. Oldfield, 4 T. R. 123; Makepeace v. Coates, 8 Mass. 451; Pierce v. Bent, 69 Me. 381, and numerous cases there cited. The ap plication of the doctrine not being founded on any statute or any fixed imperative rule of common law, is addressed to the discretion of courts, which they will exercise on a careful consideration of all the facts and circumstances involved in order to promote substantial justice and protect the rights of all parties. Chipman v. Fowle, 130 Mass. 352. Thus in Boston T. & S. F. Co. v. Mortimer, supra, Parker, C. J., said: "This decision will not reach the case of a liability incurred after the service of tho writ, or where the effect of the liability may be avoided by reasonable diligence on the part of the person liable to precure payment of the debt by the principal; but we confine it to such a case as we have before us, in which there was actual liabil. ity before the service of the writ, and an actual payment by necessity before the answer."

In the case at bar we perceive no equitable considerations which should induce a court, seeking to protect the rights of all parties, to authorize these trustees to deduct from their indebtedness to the company the amount of the note given by the latter to Clark. The original note was given for a loan to be sure; but it had been repeatedly renewed and it was amply secured. The payment of this note or any of its predecessors could have been enforced at any time; and hence there is no special reason for allowing the set-off, especially since such a proceeding would entirely ignore the rights of the plaintiff. Such a result would become a precedent for a corporation whose managers might be disposed thereto, to secure from foreign attachment all moneys due from persons doing business over its road, and thereby without violating the law delay its creditors.

If Clark has surrendered his note and security to the corporation, he did it voluntarily and with unnecessary promptuess. Had he waited until his rights had been legally determined on the writ to which he was made a party, his interests would have been more satisfactorily protected perhaps than they seem to have been sua motu. Parker v. Danforth, 16 Mass. 300, 305.

We are aware that the drift of this opinion is in conflict with that in Ingalls v. Dennett, 6 Me. 79; for since the provisions of Rev. Stat., ch. 86, § 64, went into effect we do not think a trustee should be charged on a state of facts stated in that case. Marrett v. Equitable Ins. Co., 54 Me. 537, 540.

Exceptions overruled.

Appleton, C. J., Walton, Peters, Libbey and Symonds, JJ., concurred.

NEW YORK COURT OF APPEALS ABSTRACT. DEED-DELIVERY — VOLUNTARY SETTLEMENT.- (1) In cases of voluntary settlements courts have gone great lengths in sustaining the validity of deeds without affirmative proof of any delivery, and the earlier cases hold that a voluntary settlement fairly made is binding in equity, unless there is clear and decisive proof that the grantor never parted or intended to part with possession of the deed, and that if he retains it, there must be other facts to show that it was not intended to be absolute. 1 Johns. Ch. 256; Barlow v. Heneage, Prec. in Ch. 210; Clavering v. Clavering, 2 Vern. 473; affirmed, 7 Bro. P. C. 410; Lady Hudson's case, 2 Vern. 476; Johnson v. Smith, 1 Ves. Sen. 314; Exton v. Scott, 6 Sim. 31, and other cases. In all these cases the instrument was shown to have been retained by the grantor until his death, aud there were no circumstances tending to show a delivery. This court, in Fisher v. Hall, 41 N. Y. 416, declined to follow those cases in so far as they wholly dispensed with any evidence of delivery. But the delivery of a deed, like any other fact, may be inferred from circumstances, and the rule as laid down by Chancellor Kent, in 4 Kent Com. 456, though frequently adverted to and commented upon in adjudged cases, I do not find even to have been questioned. The learned commentator says: "If both parties be present, and the usual formalities of execution take place, and the contract is to all appearances consummated without any conditions or qualifications annexed, it is a complete and valid deed, notwithstanding it be left in the custody of the grantor." This rule was applied in the case of Scrugham v. Wood, 15 Wend. 545, where it was held that a deed of marriage settlement which was read and signed by both grantor and the trustees. and acknowledged as their deed before an officer authorized to take acknowledgments, was a complete and valid deed, notwithstanding the witnesses present at its execution united in testifying that there was no formal delivery of it, and the deed, after the death of the grantor, was found in his secretary among his private papers. Nelson, J., in delivering the opinion, observes that the grantor was much more interested in the execution and preservation of the deed than either of the trustees, and the fact of its being in his possession at his death therefore did not, under the circumstances of the case, necessarily create any presumption against the idea that a delivery was intended at the time of its execution. In the present case, as before observed, there is no evidence that the deed remained in the possession of the grantor. When first produced it was iu the possession of one of the cestuis que trustent. It was signed and sealed by both grantor and grantee. In Fisher v. Hill, 41 N. Y. 416, the facts were entirely different. The grantee was not present at the execution of the deed. He did not execute or acknowledge it, but was ignorant of its execution till long after the death of the grantor, who was shown to have retained it till his death. McClean v. Button, 19 Barb. 450 more nearly resembles the present case. See also Fletcher v. Fletcher, 4 Hare, 67. (2) The delivery having been to the grantee himself, neither party would have been permitted to show, for the purpose of defeating the rights of the cestuis que trustent, that the delivery was with intent that the deed should not take effect, or that it should not take effect unless again delivered, or unless the grantor should afterward determine that it should take effect, or upon any other contingency whatever, contrary to the terms of the instrument. Worrall v. Munn, 5 N. Y. 229, 238; Lawton v. Sager, 11 Barb. 349; Arnold v. Patrick, 6 Paige, 310, 315. Wallace v. Berdell. Opinion by Rapallo, J. [Decided Oct. 7, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

ADMINISTRATOR-WASTE BY - ADMINISTRATOR DE BONIS NON CANNOT RECOVER AGAINST.-The fact that an administratrix has improperly paid out money of the estate, the proceeds of assets administered by her, or that they have been paid to her agent, does not invest the administrator de bonis non with title and enable him to sue therefor. United States v. Walker, 109 U. S. 258. The administrator is responsible therefor to the creditors, legatees and distributees of the estate, and they only were entitled to sue therefor. United States v. Walker, ubi supra; Beall v. New Mexico, 16 Wall. 535; Ennis v. Smith, 14 How. 416. If the cases cited by counsel for appellant (Catherwood v. Chabaud, 1 Barn. & C. 150, and Blydenburg v. Lowry, 4 Cranch C. C. 368) sustain his contention, they are inconsistent with the law as heretofore laid down by this court, and cannot avail him. Wilson v. Arrick. Opinion by Woods, J. [See 1 Keyes, 18; 84 N. Y. 320.]

[Decided Oct. 27, 1884.]

FRAUD-SALE OF LAND BY ONE JOINT OWNER-ASK- A party selling a piece of land of which one-balf only is his, commits no fraud on the other owners by taking from the purchaser for his part a price higher than what he requires for the rest, if previously to the execution to him of a power to sell procured without fraud, he stated bona fide to such owners his intention 80 to ask a higher price for his part, and received their consent to his doing so. It was the duty of the court to submit to the consideration of the jury the testimony adduced by the defendant to sustain the defenses set up in his answer, and the charge should be based on the hypothesis that the defenses which the testimony tended to prove were proven. Adams v. Roberts, 2 How. 486; Reese v. Beck, 24 Ala. 651; Grube v. Nichols, 36 Ill. 92; Chappell v. Allen, 38 Mo. 213, 220. The charge having assumed that there was no fraud in the procuring of the power of attorney, and the defendant having submitted testimony tending to show that there was no fraud in his doings after the power of attorney was procured, but that whatever was subsequently done by him in making the sale was done with the consent of the plaintiffs given in advance, it was error to charge the jury that the plaintiffs were entitled to recover, unless the defendant informed the plaintiffs at what price he could sell or had sold his share, and they renewed their consent that he might retain it. Ranney v. Barlow. Woods, J.

ING MORE FOR HIS SHARE-ERROR IN CHARGE.

[Decided Nov. 3, 1884.]

Opinion by

HABEAS CORPUS-INNOCENCE OF CHARGE-ISSUING WRIT IN ANOTHER JURISDICTION.-A prisoner in the custody of a State court of competent jurisdiction, not illegally asserted, cannot be taken from that jurisdiction and discharged on habeas corpus issued by a court of the United States, simply because he is not guilty of the offense for which he is held. The right of the pris. oner to a discharge depends alone upon the sufficiency of his defense to the information under which he is held, and whether this is sufficient or not is for the court which tries him to determine. If in this determination errors are committed, they can only be corrected in an appropriate form of proceeding for that purpose. The office of a writ of habeas corpus is neither to correct such errors nor to take the prisoner away from the court which holds him for trial, for fear if he remains they may be committed. Authorities to this effect in our own reports are numerous. Ex parte Watkius, 3 Pet. 202; Ex parte Lange, 18 Wall. 166; Ex parte Parks, 93 U. S. 23; Ex parte Siebold, 100 id. 374;

Ex parte Virginia, id. 343; Ex parte Rowland, 104 id. 612; Ex parte Curtis, 106 id. 375; Ex parte Yarbrough, 110 id. 653. Of course what is here said has no application to writs of habeas corpus cum causa, issued by the courts of the United States in aid of their jurisdiction upon the removal of suits or prosecutions from State courts for trial under the authority of an act of Congress. Matter of Crouch. Opinion by Waite, C. J. [Decided Nov. 10, 1884.]

CONSTITUTIONAL LAW-LIQUOR TRAFFIC-REMOVAL FROM OFFICE-QUO WARRANTO IS CIVIL PROCEEDING.—

(1) A State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to the Consti tion of the United States. Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 25. (2) A State statute regulating proceedings for the removal of a person from a State office is not repugnant to the Constitution of the United States if it provides for bringing the party against whom proceedings are had into court, and notifying him of the case he has to meet; for giving him an opportunity to be heard in his defense; and for the deliberation and judgment of the court. Kennard v. Louisiana, 92 U. S. 480. (3) The remedy by information in the nature of a quo warranto in Kausas is a civil proceeding. Ames v. Kansas, 111 U. S. 449. Foster v. Kansas. Opinion by Waite, C. J. [Decided Nov. 10, 1884.]

MUNICIPAL BOND-BONA FIDE PURCHASER-NOTICE - PRACTICE-OFFER OF TESTIMONY-REJECTION-PRESUMPTION.-Purchasers of negotiable securities are not charged with constructive notice of the pendency of a suit affecting the title or value of the securities. County of Warren v. Marcy, 97 U. S. 96. But in defense of an action brought by such a purchaser against a county to recover upon bonds alleged to have been issued by it, it is proper to introduce evidence going to show that the plaintiff or his assignor had actual notice of a suit pending, affecting such bonds, before their purchase by him. It is claimed however that error cannot be assigned here on the exception to the exclusion of the oral proof, because the record does not show that any witness was actually called to the stand to give the evidence, or that any one was present who could be called for that purpose, if the court had decided in favor of admitting it, and we are referred to the cases of Robinson v. State, 1 Lea (Tenn.). 673, and Eschbach v. Hurtt, 47 Md. 66, in support of that proposition. Those cases do undoubtedly hold that error cannot be assigned on such a ruling unless it appears that the offer was made in good faith, and this is in reality all they do decide. If the trial court has doubts about the good faith of an offer of testimony, it can insist upon the production of the witness, and upon some attempt to make the proof before it rejects the offer; but if it does reject, and allows a bill of exceptions, which shows that the offer was actually made and refused, and there is nothing else in the record to indicate bad faith, an appellate court must assume that the proof could have been made, and govern itself accordingly. Scotland Co. v. Hill. Opinion by Waite, C. J. [Decided Nov. 10, 1884.]

REMOVAL OF CAUSE-JOINT DEBTORS IN A MORTGAGE-NON-RESIDENT MORTGAGOR.-The foreclosure of a mortgage against several mortgagors, some of whom reside outside of the State, the mortgage debt being a unit, and all the mortgagors, resident and nonresident, being similarly bound, is not such a suit as may be removed to a Federal court under the act of March 3, 1875. Citing Fraser V. Jennison, 106 U. S. 194; Removal Cases, 100 id. 457: Pacific R. v. Ketchum, 101 id. 298; Hyde v. Ruble, 104 id. 407; Win

chester v. Loud, 108 id. 130; Shainwald v. Lewis, id. 158. Ayres v. Wiswall. Opinion by Waite, C. J. [Decided Nov. 10, 1884.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

JURISDICTION-CIRCUIT COURT-TRANSFER OF INTEREST PENDING HEARING-CITIZENSHIP-PLEADING-SUPPLEMENTAL BILL.-G., a citizen of Wisconsin, brought a suit in the Circuit Court of the United States for the Western District of Wisconsin, against S.,a citizen of Minnesota,aud W.,a citizen of Ohio, to set aside a tax deed upon his land, situated in Wisconsin, as a cloud on his title, and after the case was ready for trial and set down for hearing, transferred his entire interest, in the land to C., a citizen of Minnesota. Held, that although C. could not originally have brought the suit, the jurisdiction of the court, having once attached, was not divested by the transfer in such a manner that the assignee could not, by a supplemental bill, or an original bill in the nature of a supplemental bill, filed in the Circuit Court, continue the jurisdiction of the court, and retain and preserve the benefit of the former proceedings in the suit of G. against the same defendants. Clarke v. Mathewson, 12 Pet. 164; Dunn v. Clarke, 8 Pet. 1; Morgan's Heirs V. Morgan, 2 Wheat. 296; Freeman v. Howe, 24 How. 450; Huff v. Hutchinson, 14 id. 586. Cir. Ct., W. D. Wis., Aug., 1884. Glover v. Shepperd. Opinion by Burne, J.

CONSTITUTIONAL LAW-UNCONSTITUTIONAL AMENDMENT TO VALID ACT-EFFECT OF.-The validity of a constitutional act is not affected by an amendment which is unconstitutional, because it discriminates between citizens of different States, and which does not in terms repeal the original act. The amendment is void, and does not by implication repeal the original act. Cir. Ct., Dist. Ky., Aug. 8, 1884. Matter of Davis. Opinion by Barr, J.

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NEGLIGENCE Where a stevedore, engaged in his usual occupation, falls through an ordinary coal-bunker hatch that is used for stowing cargo, the presumption is of his uegligence rather than that of the officers of the vessel. The leaving open a common between-deck hatchway while the vessel is lying in port, under ordinary circumstances is not presumptive evidence of negligence on the part of the ship. This is not only shown to be the custom by the testimony in this case, but it has been so frequently commented upon in decisions as to be too well settled to be questioned. The Victoria, 13 Fed Rep.43; Dwyer v. Nat. Steamship Co., 4 id. 493; the Carl, 18 id. 655; The Germauia, 9 Ben. 356; The Helios, 12 Fed. Rep. 732. While the falling through an open hatchway by a stranger, a landsman, visitor, or passenger on board a vessel might not be presumptive of negligence on his part, where such accident occurs to a seaman or stevedore, who is accustomed to hatches, their presence, necessity, uses, character, and location, the case is different, and unless the circumstances of the particular case are such as to rebut it, the first presumption is of his negligence. Dist. Ct., S. D. Ga., June 9, 1884. The Gladiolus. Opiniou by Locke, J.

PRESUMPTION FROM ACCIDENT.

SHIP AND SHIPPING-MARITIME LIEN-SUPPLIESSHIP'S AGENTS-SECRET AGREEMENT WITH STEVEDORE. -A supply of rope necessary for use in unloading a ship, furnished to the ship by request of the ship's agents, binds the ship to pay for it. The ship's agents have presumptive authority to procure it on *Appearing in 21 Federal Reporter.

account of the ship. A secret agreement with a stevedore that he shall provide and pay for all such rope does not prevent a lieu therefor in favor of one who furnishes such rope to the ship on her account, at the request of the ship's agents, when he has no knowledge or notice of such an agreement. Dist. Ct., S. D. New York, June 30, 1884. The Ludgate Hill. Opinion by Brown, J.

SHIP AND SHIPPING-PILOTS-DUTY OF UNKNOWN OBSTRUCTIONS-COSTS.—A pilot is not an insurer. He is only chargeable for negligence when he fails in due knowledge, care, or skill, or to avoid all obstructions which were known or ought to have been known to him. The schooner J. B. O., drawing 17% feet of water, while in tow of the tug J. A. G., ran upon the edge of an obstruction in the East river, 400 to 500 feet easterly from the Nineteenth-street buoy (Nes Rock), near mid-channel. Shortly before the trial, the existence of a pinnacle rock four yards square on the upper surface, and 12% feet below low-water mark, was for the first time discovered and located in the precise region where the schooner struck. Held, that the schooner had struck upon the edge of the newlydiscovered rock, previous ignorance of which was not a fault, and that the pilot having pursued the customary course, the tug was not liable for the damage; but as the facts seemed to warrant the suit, the libel was dismissed without costs. Dist. Ct., S. D. New York, June 30, 1884. The James A. Garfield. Opinion by Brown, J.

PAYMENT-IN MONEY OR EQUIVALENT-ELECTIONRAILROAD BONDS-RECOVERY OF INTEREST-DEMAND.

-(1) Where a promise is in the alternative, to pay in money or in some other medium of payment, the promisor has an election either to pay in money or the equivalent, and after the day of payment has elapsed without payment, the right of election on the part of the promisor is gone, and the promisee is entitled to payment in money. For various illustrations of the rule, see McNitt v. Clark, 7 Johns. 465; Gilbert v. Danforth, 6 N. Y. 585; Stephens v. Howe, 2 Jones & Sp. 133; Stewart v. Donelly, 4 Yerg. 177; Choice v. Moseley, 1 Bailey, 136; Butcher v. Carlile, 12 Grat. 520; Church v. Feterow, 2 Pen. & W. 301; Trowbridge v. Holcomb, 4 Ohio St. 38; P'erry v. Smith, 22 Vt. 301; Mettler v. Moore, 1 Blackf. 342. (2) By the terms of bonds issued in 1875, by the Texas & Pacific Railroad Company, the company acknowledged itself to be indebted to the holder in the sum named therein, which it promised to pay to or assigns, at the office of the company in New York, on the first day of January, 1915, with interest thereon at seven per cent per annum, payable annually on the first day of July of each year, as provided in the mortgage on the lands of the company, and upon the net income derived from operating its road east of Fort Worth, by which payment was secured. The bonds further provided that in case such net earnings should not, in any one year, be sufficient to enable the company to pay seven per cent interest on the outstanding bonds, then scrip might, at the option of the company, be issued for the interest, such scrip to be received at par and interest, the same as money, in payment for any of the company's lands, at the ordinary schedule price, or it might be converted into capital stock of the company when presented in amounts of $10 or its multiple. The mortgage was silent as to payment of interest or principal, except that it authorized the trustees to sell the lands if default was made in the principal sum at maturity of the bonds, and apply the proceeds to satisfy the amount due. Held, that the mortgage did not qualify or control the absolute promise in the bonds to pay interest in money or in scrip; that the bondholders were entitled to pay

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ment of interest in money, if earned, or if it was not earned, to the scrip, on the day at which, by the terms of the bonds, the company was to pay the interest, or exercise its alternative; and that after that day had elapsed, without an election by the company, they were entitled to be paid in money, and could maintain an action to recover the same, although no presentment of the bonds or demand of payment had been made. There is no distinction in this respect between notes and negotiable bonds. Savannah & M. R. Co. v. Lancaster, 62 Ala. 555; Philadelphia & B. R. Co. v. Johnson, 54 Peun. St. 127. And the rule applies also to notes payable in specific articles.' Elkins V. Parkhurst, 17 Vt. 105; Wiley v. Shoemak, 2 G. Greene (Iowa), 205. If the defendant had been prepared to deliver the scrip when the interest matured, it would have complied with its agreement, and been absolved from liability. The law does not usually require the doing of a vain thing, and after the defendant had announced that it could not pay the interest, and was not prepared to issue the scrip, it would have been a nugatory and perfunctory act on the part of the plaintiff, when he was entitled absolutely to his money, to make a formal presentment of his bonds and a formal demand of payment. Cir. Ct., S. D. New York, Aug. 26, 1881. Marlor v. Texas & Pac. R. Co. Opinion by Wallace, J.

MANDAMUS-TREASURER TO PAY COUPONS-IF IT LIES INJUNCTION DENIED-U. S. REV. STAT., § 723.-Where a writ of mandamus will lie to compel a city treasurer to pay coupons due on bouds of the city out of the fund provided by statute, or to compel the proper officers to set apart taxes collected as a sinking fund for the payment thereof, the bondholder has an adequate remedy at law, and cannot proceed by bill in equity, not ancillary to any pending proceeding at law, to enjoin the application of the funds to other purposes. In a case relating to a part of these same bonds, the Supreme Court of California, in Meyer v. Porter, 2 Pac. Rep. 884, held that a mandamus should issue to compel the treasurer of Sacramento to pay the overdue coupons, there being money in the treasury applicable to their payment. So also in the same case the Supreme Court, sitting in banc in regard to this same class of bonds, unanimously held the writ of mandate to be a proper remedy to compel the city authorities to levy a tax to supply a fund to pay these coupons. In this case the court followed the judgment of the Supreme Court of the United States in Louisiana v. Pilsbury, 105 U. S. 302, which directed a writ of mandamus to issue to compel the city of New Orleans to levy an annual tax to pay the interest on the bonds then in question. See also Kennedy v. Sacramento, 19 Fed. Rep. 580. This is a remedy at law direct, speedy, and adequate, and as was stated in the last case cited, the only remedy in view of the provisions of the statute under which the bonds were issued and accepted. If it is the duty of the treasurer to pay these coupons out of the funds alleged to be in the treasury, the most direct, speedy, and effective way to obtain payment is by mandamus in a court of law. This remedy is complete and adequate. It would not only prevent the money from being diverted to other purposes, all that this bill seeks, but would secure the payment of the overdue coupons held by complainant, and be in itself a full and adequate remedy, while that sought in this bill could only be ancillary to some other remedy in a court of law, to which complainant would be driven at last. Section 723, Rev. Stat., provides that "suits in equity shall not be sustained in either of the courts of the United States, in any case where a plain, adequate, and complete remedy may be had at law." And this provision has been often recognized and enforced by the Supreme

Court of the United States; as in Hipp v. Babin, 19 How. 271; Parker v. Winnipiseogee Co., 2 Black, 545; Watson v. Sutherland, 5 Wall. 74, and many other cases. Cir. Ct., Dist. Cal., Aug. 25, 1884. Hausmeister v. Porter. Opinion by Sawyer, J.

MAINE SUPREME JUDICIAL COURT ABSTRACT.*

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DEMAND

EXECUTOR AND ADMINISTRATOR WAIVER.-An action cannot be maintained against an administratrix for default by her in the performance after the death of her intestate of the condition of a bond given by her intestate, unless the claim was presented in writing and payment demanded thirty days before the date of the writ, or this requirement was waived. Eaton v. Buswell, 69 Me.552; Me. Cent. Institute v. Haskell, 71 id. 487: Stevens v. Haskell, 72 id. 244. Boothy v. Boothy. Opinion by Symonds, J.

TRUST AND TRUSTEE-STATUTE OF LIMITATION.-At the death of a trustee who had given no bond as such, if the identity of the trust fund or property is lost, the cestui que trust stands in the position of a general creditor of the estate; or if the trust is not terminated the estate becomes at once liable to a new trustee who may be appointed, and the special statute of limitations applies to the demands for the trust funds as it does to other claims against the estate, though a new trustee is not appointed. This is not a proceeding in equity to hold a particular fund or property as charged with a trust, either originally, or by tracing the use of trust funds or the proceeds of trust property in the purchase or procurement of it. The distinct statement of the case is, that the trust fund cannot now be traced. The proceeding is by action at law, of assumpsit, against the trustee personally, through his devisee; not against a trust fund or property. Such an action stands upon the same plane, subject to the same limitation, as an ordinary action of assumpsit against the estate of a deceased person. The statute of limitations applies to any trust which is the ground of an action at law. The rule that the statute does not apply to cases where the technical relation of trustee and cestui que trust exists, only holds in cases over which courts of equity have exclusive jurisdiction. Wood (Lim. 42; Godden v. Kimmell, 99 U. S. 201; Pratt v. Northam, 5 Mason, 95. Executors are charged with no more in virtue of their office, than

the administration of the assets of the testator. If at the time of his death there is any specific personal property in his hands belonging to others, which he holds in trust, or otherwise, and it can be clearly traced and distinguished from the testator's own, such property, whether it be goods, securities, stock or other things, is not assets to be applied in payment of his debts or to be distributed among his heirs; but is to be held by the executors as the testator himself heid it. But if the testator has money or other property in his hands belonging to others, whether in trust or otherwise, and it has no earmark, and is not distinguishable from the mass of his own property, the party must come in as a general creditor; and it falls within the description of assets of the testator. This is the settled law in bankruptcy and in the administration of estates." Trecothick v. Austin, 4 Mason, 29. The present periods of limitation under the statutes are two years, from the executor's notice of apdemanding payment, and two years and six months pointment, for presenting claims in writing and for beginning the action. Whittier v. Woodward, 1 Me. 161; Littlefield v. Eaton, 74 id. 516. Fowler v. True.

Opinion by Symonds, J.

*Appearing in 76 Maine Reports..

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