McCall v. Senex, 9 S. & R. 304, Tilghman, C. J., says: "An assignment of the debt carries with it the benefit of the mortgage, although the mortgage be not specifically assigned. From the moment the debt is assigned.the mortgagee becomes the trustee of the assignee." In the same case, Gibson, J., said: "Chancery will order a security to be assigned in favor of a surety who has paid it." And Duncan, J., said: "Whatever will give the money will carry the estate in the land along with it. The estate in the land is the same thing as the money due upon it. * * * The assignment of the debt, or forgiving it, will draw the land after it as a consequence. It would do it, though the debt were only given by parol. Wis. tar v. Moulin, 2 Barr, 969." And again, "the debt being paid or in any other manner extinguished, the mortgagee becomes a trustee for the mortgagor." In Johnson v. Hall, 3 Johns. Cas. 329, Kent, J., said: "When the note, to secure which the mortgage was given, was negotiated, the interest in the mortgage, which was given for no other purpose than to secure that note, passed, of course. It required no writing, no assignment on the back of the mortgage." * *Who

ever was owner of the debt was likewise owner of the security." In Rickert v. Maderia, 1 Rawle, 328, Rodgers, J., says: "Whatever will give the money secured by the mortgage will carry the mortgaged premises along with it. The forgiving the debt, although by parol, will draw the land after it as a consequence." It has been many times decided that a mortgage may be transferred by parol, and that when given to secure notes payable to bearer, the holder is the equitable owner of the mortgage. Whoever pays the debt for the mortgagor is the equitable owner of the mortgage. See Hilliard on Mortgages, vol. I, 243, 253.

We think the authorities cited show that when one who is a stranger to the obligation, pays the debt in whole or in part, in the absence of evidence to the contrary, he becomes by implication a purchaser of the debt to the extent of his payment. In the present case Brice was an entire stranger to the debt due by Friling to Mrs. Smith. He was under no kind of obligation to pay it. There is no affirmative testimony that when he made the payments, he thereby intended to extinguish the indebtedness to that extent. This lack of testimony would alone qualify him to be regarded as a purchaser. But the case is stronger than that. The testimony already quoted, contradicted by no one, shows that he at least intended to be secured by the mortgage given to secure the debt upon which the payments were made. When he testified, "I was to be repaid out of the mortgage. They were simply advancements on the mortgage; and Mrs. Smith asked me how I wanted to be secured for the payment of this money. I replied I was to be secured out of the mortgage. She said very well, then I don't want to see you lose the money advanced," a clear cas of concurrent assent was made out

between Brice and the mortgagee to treat the payments as the acquisition of an interest, and not as an absolute extinguishment. Certainly if he had paid the entire debt, he would have become the equitable owner of the mortgage, and could have compelled its transfer to himself. We see no reason why a partial interest could not be acquired by a partial payment in the same manner as an entire interest by an entire payment. In equitable contemplation it is the fact of payment which creates the interest, and this controlling fact has the same effect in principle, whether the payment be partial or entire. When Mrs. Smith brought suit on her mortgage, she claimed, and took judgment for, the whole amount of the mortgage and interest, without any deduction for the payments made by Brice. This was in apparent conformity with the understanding testified to by Brice, and adds strength to the other affirmative testimony on that subject. She was then the legal owner of the mortgage and judgment to the extent of the amount remaining due to her, and the trustee of Brice as to the amount paid by him. This being so, Brice was entitled to credit for the whole amount of the judgment and interest paid by him, and the auditor and court below were in error in rejecting the credit for $709.18, paid prior to the assignment.

As to the second error assigned, we do not, in view of all the circumstances of the case, see any sufficient reason for interfering with the action of the court below in regard to the compensation of the accountant, and this error is not sustained.

Decree reversed and record remitted, with direction to the court below to allow the accountant credit for the full sum of $5,109.10, paid to Mary Smith at the same time and in the same manner as appears in the original account of the assignee, the costs of this appeal to be paid by the appellee.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF THE UNITED STATES October Term, 1880.

LEGISLATIVE PRIVILEGE POWER OF THE LOWER HOUSE OF CONGRESS TO PUNISH FOR CONTEMPT. This was an action of trespass brought in the Supreme Court of the District of Columbia, against the Speaker of the House of Representatives, and the Sergeant-at-Arms and certain members thereof for false imprisonment. The trespass alleged was the taking of the defendant from his home and confining him in the common jail of the district for forty-five days, without any reasonable or probable cause, contrary to law and against his will. The Speaker, Michael C. Kerr, died before the service of process, and the suit abated as to him. The Sergeant-at-Arms, John G. Thompson pleaded separately: 1. The general issue; and 2. A special plea of justification, that what he did was done in his official

capacity as the Sergeant-at-Arms of the House of Representatives, and under its orders and those of its Speaker. The other defendants pleaded jointly: 1. The general issue; and, 2. A plea of justification similar to that of Johnson, alleging substantially these facts: That, the House being in session on January 24, 1876, adopted a preamble and resolution to the effect that, whereas the United States was a creditor of Jay Cooke & Co., in bankruptcy, resulting from improvident deposits made by the Secretary of the Navy with the London branch of the firm; and whereas the matter known as the real-estate pool had been only partially inquired into by the late joint select committee appointed to inquire into the affairs of the District of Columbia, in which Jay Cooke & Co. had a valuable interest; and whereas the assignee of the firm had recently made a settlement of the interest of the estate of Jay Cooke & Co. with the associates of said firm to the loss, as was alleged, of numerous creditors of said estate, including the United States; and whereas, the courts were, in consequence, powerless to afford relief: Resolved, that a committee of five members of the house be appointed to inquire into the nature and history of the real-estate pool; and that the character of said settlement, with the amount of property involved, in which Jay Cooke & Co. were interested, and the amount paid, or to be paid in said settlement, with power to send for persons and papers, and report to the House. The plea further alleges the appointment of the members of the House, who were sued, upon that committee together with one Platt, who was not sued; and that in the progress of the inquiry Hallet Kilbourn came before them as a witness, and there declined to answer certain questions put to him, and to produce certain books and papers which were pertinent to the inquiry; that the committee reported the matter to the House, stating that it was necessary to the investigation that he should be compelled to answer and to produce the required books and papers. That Kilbourn was then arrested on the Speaker's warrant on a charge of contempt and brought before the House. That, after hearing him, the House resolved that in purging himself of the contempt for which he was in custody, the said Kilbourn should state that he was willing to answer the questions asked and produce the required books and papers; and that until he did so purge himself, he should be kept in the custody of the Sergeant-at-Arms, and in the common jail of the District of Columbia; that the Speaker then issued to the Sergeant-atArms his warrant, with the above resolutions attached, and the words: "Now, therefore, you are hereby commanded to execute the same accordingly." That Kilbourn was arrested under the authority of this writ, and detained in custody until released upon habeas corpus issued by the Supreme Court of the District of Columbia; that these are the trespasses complained of, and none other. The plea further avers that whatever was done by these defendants was done in their official

capacity as members of the House of Representatives. To both these special pleas the plaintiff demurred, and the demurrer was overruled and judgment was rendered for the defendants. The plaintiff sued out a writ of error, and the case stood in this court as it did in the Supreme Court of the District of Columbia on the sufficiency of the special pleas. Held, that the power of Congress to punish for contempt of its authority or disregard of its orders, cannot be argued to exist by implication from its exercise by the House of Commons of England, from which country we have derived our system of parliamentary law. The power to punish for contempt, resident in that body, has its source in the origin of that body, which was formerly and distinctly a court of justice. Burdett v. Abbott, 14 East, 1; 4 Coke's Inst. 47. See, also, Colby's Case, 3 Wilson, 188; Sheriff of Middlesex's Case, 11 Adol. & E. 273; Stockdale v. Hansard, 9 Adol. & E. 1; Keilly v. Carson, 4 Moore's P. C. 13; Beaumont v. Barret, 1 Moore's P. C. 76. Held, further, that it was not necessary in this case to decide the question which had been raised in argument of the existence of such power because of its necessity to enable the two houses of Congress to perform the duties and exercise the powers which the Constitution has conferred on them. That, from the preamble and resolution under which the committee, before which the plaintiff refused to testify, acted, it appears that the House of Representatives not only exceeded the limits of their authority, but assumed a power which could only be exercised by another branch of the government, because it was clearly judicial in its nature. Anderson v. Dunn, 6 Wheat. 204. The court held, further, as to the defendants who were members of the House, that, as they did not make the actual assault on the plaintiff, nor personally assist in arresting or confining him, they can only be held liable on the charge made against them as persons who had ordered or directed in the matter, and that what they had done, which could be construed into ordering or directing the arrest of the plaintiff, had been done in their capacity as members of the House, to-wit: in reporting their opinion that he was in contempt, and in voting for the resolution under which he was arrested, they were protected by their privilege as members of the House under the Constitution declaring that "for any speech or debate in either house they should not be questioned in any other place." Coffin v. Coffin, 4 Mass. 1. As to the defendants who were representatives, the judgment of the court below was affirmed. As to the defendant Thompson, it was reversed and the case remanded for further proceedings. In error to the Supreme Court of Columbia. Opinion by Mr. Justice MILLER.Kilbourn v. Thompson.

JUDGMENT IN PARTITION-COLLATERAL ATTACK. This was a suit to quiet title to certain property in Evansville, Indiana. The premises in question constitute a fractional part of a section through which a small stream known as

1

S

Pigeon Creek runs. O the west side of thi stream lies four-sevenths of the section, and on the east side the other three-sevenths. The premises in suit are on the west side of the creek. The plaintiffs claim through one William P. Hall, who in 1831 became the owner of two undivided sevenths of the section. It appeared that in 1833 proceedings were taken in the circuit court of the county in which the section lies, at the instance of one of the possessors of an undivided interest, for a partition of the land. That these proceedings resulted in partition, and that the interest of Hall was set apart out of that portion of the land lying east of Pigeon Creek. If these proceedings are valid, the claim of the complainants is groundless. The partition is assailed because the record discloses no complaint or petition of the applicant for partition. The statute does not in terms require that the application of a co-proprietor seeking partition should be presented in writing. The order of court appointing the commissioners is a determination that the application is sufficient, and that due notice has been given. This conclusion is not open to collateral attack; it can only be questioned on appeal or writ of error by a superior tribunal, invested with appellate jurisdiction to review it. Vorhees v. Bank, 10 Pet. 449; Thompson v. Tolmie, 2 Pet. 157; Comstock v. Crawford, 3 Wal. 396. Affirmed. Appeal from the Circuit Court of the United States for the District of Indiana. Opinion by Mr. Justice FIELD.-Hall v. Law.

EQUITY-DEMURRER-LIMITATIONS-LACHES -Coddington sued the Pensacola, etc. R. Co., in equity to rescind a contract by which he agreed to surrender certain coupons in exchange for preferred. He charged the defendant with fraud, based chiefly on the fact that the certificates of preferred stock were not attested by the seal of the company. He seeks to reach a fund growing out of a sale of the property of the company. Held, that there was no fraud stated in the bill, because the necessity of the seal of company was apparent upon the law chartering the company, and its absence was apparent upon the face of the certificate, so that complainant had full notice of both; that by the laws of Florida such a suit as the one in judgment was barred by the lapse of three years, and that the delay of eight years after his cause of action accrued barred the demand of complainant; and further, that such inordinate delay was proof of laches, which would of itself defeat the bill of complainant. The demurrer was properly sustained. Affirmed. Appeal from the Circuit Court of the United States for the Northern District of Florida. Opinion by Mr. Justice MILLER.-Coddington v. Pensacola, etc. R. Co.

SUPREME COURT OF INDIANA.

February, 1881.

NEW TRIAL DISCHARGE AND RECALL OF JURORS.-In this case a new trial was asked for, because the court had discharged the jury, but, learning a few minutes later that this cause was set for trial on that day, had the jurors recalled. Held, 1. That the court had full power at any time during the term to direct the recall of the jurors of the regular panel, notwithstanding their previous discharge, without the issue of any formal summons. 2. If it were conceded that the action of the court was informal or irregular, it could not be made available as a cause for a new trial, unless the appellant showed that he had been prevented thereby from having a fair trial. Affirmed. Opinion by Howк, J.-Tilford v. Wilson.

JOINT OBLIGORS-DISCHARGE.-The question presented in this case has been decided, since this appeal was taken, adversely to the appellants. McCoy v. Payne, 68 Ind. 327; Huddleson v. Armstrong, 70 Ind. 99. By the last-named case it is shown that the common-law rule "whereby if one of two or more joint promisors or obligors should die, his representatives were at law discharged, and the survivor or survivors alone could be sued," has never been a part of the law of this State. Affirmed. Opinion by WOODS, J.-Eldred v. First National Bank of Valparaiso.

PROMISSORY NOTE-NOTICE BY SURETY TO HOLDER TO Bring Suit.-Where the surety in a promissory note notified the holder that the principal was then solvent, and directed him "to proceed at once to collect the note:" Held, that the notice was a sufficient compliance with sec. 672 of the Code, which requires a notice "to forthwith institute an action upon the contract." But the answer of the surety was insufficient, because it alleged the death of the principal and did not show but that his death occurred so soon after the service of the notice as to prevent the bringing of an action, nor that he left any estate out of which the note could have been collected, nor that he lived in the State and could have been sued in its courts. Whittlesey v. Heberrer, 48 Ind. 260; Rowe v. Buchtel, 13 Ind. 381. Affirmed. Opinion by WoODS, J.-Franklin v. Franklin.

ATTORNEY'S FEES-PLEADING-EXHIBITS.-1. A judgment will not be reversed because it includes attorney's fees, although the complaint did not allege their value or make specific claim for their recovery. Smiley v. Meir, 47 Ind. 559; Phillips v. Cox, 61 Ind. 345. 2. Where in an exhibit to a complaint an indorsement on a note is different from that alleged in the body of the complaint, the exhibits will prevail. Affirmed. Opinion by ELLIOTT, J.-Glenn v. Porter.

ATTORNEY SITTING AS JUDGE - DISCRETION. -Complaint is made that the court called an attorney to sit as judge pro tempore. Held, that the statute (Acts 1877, p. 28), vests the judge with

discretionary power of determining when it is proper to call a qualified attorney; and when a court exercises such discretionary power, the Supreme Court will not interfere, unless there is shown to have been an abuse of discretion. On the trial, the court permitted a witness to testify as to the contents of a certain book, without showing that any effort had been made to get the book itself. This was plainly error. Reversed. Opinion by ELLIOTT, J.-Kane v. State.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January, 1881.

TORT-CONVERSION-DEPUTY SHERIFF-EsTOPPEL.-Where, in an action of tort against a deputy sheriff for the conversion of the plaintiff's goods by attaching the same, it appeared that the plaintiff, Partridge, and one Soule were, at the time of said attachment, carrying on business under the name of "Soule & Partridge;" that the goods used in said business were purchased by the direction of the plaintiff, in said name, and were shipped to them in said name, or in the name of "S. & P.," and the bills for the same were made out to "Soule & Partridge" by consent and direction of both parties; that the action in which the said goods were attached on a claim was against Soule alone, having no relation to said business, and the defendant in said action was directed to, and did, attach the said goods as the property of Soule, in which Partridge had an interest; that by the agreement in writing between said Soule and Partridge, under which said business was begun and carried on, of which neither the defendant nor the attaching creditor had any notice, said Partridge was to furuish a stock of goods to be sold at private sale, and to pay said Sonle a sum equal in amount to onethird of the net profits of the business, and Soule was to allow the use of his name in the management of said business and devote his whole time thereto, but was to have no interest in said goods; and that all the goods paid for at the time of said attachment had been paid for by the separate moneys of said Partridge, it was held, that said Soule had no interest in the goods attached, and that there was nothing shown in the case which estops the plaintiff from proving that in fact there was no partnership, and that Soule had no interest in the goods attached. Opinion by MORTON, J.-Partridge v. Kingman.

PAUPER SETTLEMENT-VALIDITY OF MARRIAGE. In an action by one town against another to recover for the support of a female pauper, alleged to have a settlement in the defendant town, the only evidence offered to prove such settlement was the fact that, in March, 1876, she was married to J C, who had a legal settlement in the defendant town. In June, 1867. said

pauper contracted a valid marriage at West Rutland, in the State of Vermont, with W L, both parties then being residents of that place, and they there lived together until June, 1870, when said W L left his home and family, since which 'time he had not been heard from by his wife. In July following, said pauper removed from said West Rutland to the defendant town, and after said marriage to J C they lived as man and wife in the plaintiff town. Held, that there was no evidence upon which it would be competent to find that the pauper was lawfully married to J C; that the presumption of innocence, which is not based upon facts, but is independent of all evidence, could not rebut the presumption of continued life, which rests upon the facts; and that the liability of the defendant town being wholly a statutory liability, and the plaintiff having failed to fix the liability upon the defendant by proving the material fact of the settlement of the pauper in the defendant town, there must be judgment for the defendant. Opinion by LORD, J.-Hyde Park v. Canton.

STREET RAILWAY DEFECTIVE HIGHWAY— HUSBAND AND WIFE.-Under the statute of 1871, ch. 381,§ 21, concerning street railways, providing that "every corporation, its lessees or assigns, shall keep in repair such portions of any paved streets, roads and bridges as are occupied by its tracks; and when such tracks occupy streets or roads that are not paved, it shall, in addition to the portion occupied by its tracks, keep in repair eighteen inches on each side thereof, to the satisfaction of the superintendent of streets," etc., "and shall be liable for any loss or injury that any person may sustain by reason of any carelessness, neglect or misconduct of its agents or servants in the construction, management and use of its tracks," it was held: 1. That when a defect in the track of a street-railway corporation occurred through the carelessness of the corporation, its agents or servants, in the construction of the same, the fact that the superintendent of streets was satisfied with the construction did not make it any less a defect, or exonerate the corporation from its liability to the person injured. 2. That a husband was entitled to recover for the expense of the care of his wife and for the loss of her services and society occasioned by injuries received by the wife from such defect. Opinion by MORTON, J.—Osgood v. Lynn, etc. R. Co.

SUPREME COURT OF MISSOURI.

February 1881.

OFFICIAL BOND-LIABILITY OF SECURITIESTERM OF OFFICE-DEFALCATION.-Plaintiff and defendant were co-securities on an official bond, the penalty of which was $5,000, the principal being a defaulter in a sum larger than the pen

alty. Defendant contends that the term of office was only one year, whereas the said principal held three years, and that the defalcation during the first year was less than $1,000, for which alone the sureties were bound. Plaintiff, who paid the penalty, claims that the term of office was three years. Held, that whether the term was one or three years, the statute provided that the incumbent should hold until his successor was elected and qualified, and there having been no election during the three years, and the said incumbent remaining in office during that time, the securities were liable for any defalcation while he was in office. Affirmed. Opinion by HENRY, J.-Long v. Seay.

CASHIER'S BOND-RE APPOINTMENT WITHOUT NEW BOND-RELEASE OF SECURITIES.-Suit on a bond executed by H, a bank cashier, as principal, and G and JH as sureties. The evidence showed that in January, 1871, H was appointed by the bank directors, cashier for one year, and until his successor should be duly elected and qualified; and gave bond for the faithful discharge of his duties, it being silent as to the term of his office, and as to the time for which the obligees should be liable. In January, 1872, H was reappointed cashier, and again in January, 1873, but never gave any other bond than the one above mentioned. Sec. 3, W. S., p. 330, under which the bank was organized, provided that cashiers should hold their offices for one year, and until their successors should be duly elected and qualified. H defaulted, which occurred after the expiration of one year from the date of his appointment. Held, that the appointment of H to be his own successor, and his continuance as cashier without giving a new bond, released the securities thereon, it being the same as if another person had been appointed in his stead, and without giving a new bond, had entered upon the discharge of his duties with the assent of the bank. Harris v. Babbitt, 4 Dil. C. C. 186. Affirmed. Opinion by HENRY, J.-Savings Bank of Hannibal v. Foreman.

LIS PENDENS - APPLICABLE TO ACTION TO TEST VALIDITY OF WILL-R. S. SEC. 3217 VOID AND VOIDABLE JUDGMENTS.-Ejectment, both parties claiming title under J C, who died March 25, 1868, leaving a will by which he devised the land sued for to R C and H C, which was duly admitted to probate by the probate court of Livingstone County, March 30, 1868. On Oct. 29, 1868, J T and others instituted suit under the statute in the Livingstone Circuit Court against R C and H C, to test the validity of the will, and summons was served on them October 30, 1868. This suit was transferred by change of venue to Buchanan County, where, on May 25, 1875, it was adjudged by agreement that the writing admitted to probate was the valid will of J C; and it was further adjudged by agreement, that H C and R C should pay the costs, amounting to $809.93, which should be a lien on the lands; and a copy

of this judgment was filed for record with the clerk of the Livingstone Circuit Court, on May 25, 1875, and was duly recorded. On Nov. 30, 1875, a special execution to collect the costs was issued, and the lands were sold by the sheriff, who, on Jan. 25, 1876, made his deed to defendant therefor, and acknowledged it Feb. 25, 1876. On Oct. 30, 1868, a notice of the suit to set aside the will, stating when and where it was brought, the names of the parties and a description of the property to be affected thereby, was filed and recorded in the recorder's office of Livingstone County. On Sept. 11, 1874, H C and R C executed a deed of trust on the same lands, to secure the payment of a note therein described; and under this deed the premises were sold and conveyed to plaintiffs on May 4, 1876, who bring this action to recover possession from defendants, they being the purchasers at the execution sale as above stated. Held, that the doctrine of lis pendens, which applies to actions at law as well as to suits in equity, was applicable to the judgment of the Circuit Court of Buchanan County, creating a lien for costs in Livingstone County; and therefore the title acquired by the defendants under the execution sale, was superior to that acquired by the plaintiffs under the trust deed. Held, also, that the provisions of the R. S., sec. 3217, apply only to equitable actions; and there being no such requirement as to actions at law, the rule remains the same as at common law; and therefore the written notice filed with the recorder by the plaintiffs in the suit to set aside the will, amounted to nothing. Held further, that the Circuit Court of Buchanan County, having regularly acquired jurisdiction of the suit by change of venue, had precisely the same power to render judgment therein as the Circuit Court of Livingstone County; and said court having jurisdiction of the subJect-matter, no judgment it could render in reference thereto, could be void; and therefore the judgment it rendered is certainly not void; and as all the parties consented to it, it is not seen how it could be reversed on appeal. Reversed and remanded. Opinion by HOUGH, J.-McElwrath v. Hollander.

STATUTE, CONSTRUCTION OF-LIEN ON PROPERTY IN THIS STATE FOR MATERIALS FURNISHED IN ANOTHER-OFFICERS-FAILURE OF DUTYAPPEAL. The plaintiff is a corporation created under the laws of this State, and defendant is likewise a corporation created under the laws of this State, and operating its road from Pierce City in Laurence County, therein westwardly to the Kansas line, and thence through Cherokee County toward Oswego in the latter State. This proceeding is to establish a lien under the act of March 21st, 1873, against defendant's property in this State for balance due on a contract made in St. Louis in 1873, to build a bridge over a river on the line of defendant's road in said Cherokee County. Held, that plaintiff's lien was not invalid because the bridge was built in Kansas;