SHOW THE CONTRARY.-It is a well-settled principle, that the undue influence necessary to invalidate a gift need not proceed from the recipient of the ward's or donor's bounty, but it is equally fatal to the validity of the gift that such influence was exerted by a third person. Ranken v. Patton. 65 Mo. 378; Ford v. Hennessy, 70 Mo. 580. Such gifts are watched by courts of equity with the most jealous scrutiny, and are generally held as presumptively void (Garvin v. Williams, 44 Mo. 465); and the burden is upon the donee to show that the gift in question is in every way worthy the sanction of a court of equity. Street v. Goss, 62 Mo. 226. Although the daughter, in this case making the deed of gift to her father, had reached her majority, the evidence shows that she was unduly influenced by her father and brother, and the case falls far short of the standard mentioned above. Judgment of the Court of Appeals affirmed. Opinion by SHERWOOD, C.

J.-Miller v. Simmonds.

DAMAGES-ASSAULT AND BATTERY-PARTIES TO ACTION-EVIDENCE.-In an action for damages alleged to have been caused by an assault and battery upon the wife, the husband is properly joined with her as co-plaintiff. R. S. 1879, § 3468; Edmondson v. Phillips, decided present term. The wife, however, is the substantial party to the suit, and is competent as a witness in her own behalf. Harriman v. Stowe, 57 Mo. 93; Owen v. Brockschmidt, 54 Mo. 285; Evers v. Life Association, 59 Mo. 429. The husband, in such cases, is clearly incompetent as a witness, and error was committed in allowing him to testify. In such cases the statute has not modified the common law. Paul v. Leavitt, 53 Mo. 595. Evidence of the circumstances under which injury from assault and battery occurred is admissible. If it was not attended by malice, gross outrage, oppression, etc., only compensatory damages can be recovered. Field on Damages, §§ 23, 25, 26, 69, 70, 71, 116; Cooley on Torts, 692, 694; 2 Greenl. Ev. §§ 270, 272. Reversed and remanded. Opinion by SHERWOOD, C. J.-Joice v. Branson.

SHERIFF'S BOND-BREACH OF ASSIGNMENT OF BREACHES.-The petition in this case assigned as breaches of the official bond of defendant, as sheriff, his failure to apprise plaintiff of his rights under the law, as required by 1 Wag. Stat. sec. 12, p. 601, and defendant's levy of the execution on certain corn and the sale thereof, notwithstanding a notification from plaintiff that he claimed the corn as exempt in lieu of the property mentioned in subdivisions 1 and 2 of sec. 9, 1 Wag. Stat. p. 603. The evidence tended to establish the allegations of the petition. Held, that the breaches of the bond were well assigned, and that it was immaterial whether plaintiff was the owner of the property mentioned in subdivisions 1 and 2 of said sec. 9 or not; if he owned that property, he had the right to exercise the election given him by sec. 11; if he did not, his right under the lastmentioned section still remained. State, use of

Garrett v. Farmer, 21 Mo. 160. If the petition was defective in not alleging the value of the corn levied on, it still stated a cause of action and any mere formal defect of that kind, if any, should have been taken advantage of in the court below. Affirmed. Opinion by SHERWOOD, C. J. -State, ex rel. v. Beamer.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January, 1881.

BILL IN EQUITY-REMOVAL of Cause to CIRCUIT COURT.-The material facts alleged in a bill in equity were as follows: "The defendant, Pierce, as trustee under the will of Seth Adams, holds the sum of $75,000 in trust, to invest the same in such manner as to him may seem prudent, and to pay the net income thereof semi-annually to the testator's brother, Charles W. Adams (the other defendant), during his natural life, "such payments to be made to him personally when convenient,otherwise upon his order or receipt in writing, in either case free from the interference or control of his creditors;my intention being that the use of said income shall not be anticipated by assignment;" and at his death to pay the net income to his present wife for the benefit of herself and his children, and the principal, at her death or second marriage, to the children and their representatives. The defendant, Adams, owes the plaintiff $10,000 for money lent. The plaintiff is a corporation established in this Commonwealth, the defendant Pierce is a citizen of Massachusetts, and the defendant Adams is a citizen of Texas, and, except his interest in this trust fund, has no means wherewith to pay his debt to the plaintiff, and has no property subject to attachment. The bill prays that the plaintiff may be allowed to reach and apply that interest in payment of his debt, that it may be sold and the proceeds applied to such payment, or Pierce be ordered to hold the fund in trust to pay the net income semi-annually to the plaintiff until the debt is paid or until the death of the defendant Adams, and for further relief. The defendants petitioned for removal of the cause to the Circuit Court of the United States. Held, that if the bill is founded upon the general jurisdiction of this court in equity, the trustee is not merely a formal, but a necessary party; if it is founded on the special jurisdiction in equity.conferred upon this court by Gen. Stats. ch. 113, sec. 2, cl. 11, the jurisdiction of the court depends upon the existence of such an interest as is therein mentioned within this Commonwealth, and upon the joinder of the trustee as a defendIn either aspect of the case, no judgment can be rendered upon the bill in its present form, nor the controversy as between the creditor and the debtor be fully determined in favor of the creditor, without the presence of the trustee; and

ant.

the trustee being a citizen of the same State with the plaintiff, neither the debtor alone, nor the debtor and the trustee jointly, can remove the case into the Circuit Court of the United States. Opinion by GRAY, C. J.-Broadway National Bank v. Adams.

WILL-LIFE TENANT-POWER-REMAINDERTRUST.-A testator gave "the use, income and improvement of all my estate, both real and personal, with the privilege of cutting and selling wood and timber from the woodland and the proceeds of the sale of any or all my real estate," to his daughter, "for her maintenance and support, with the privilege of using, if in her judgment she desires, any part or all of said income or proceeds of the sale of such real estate, and sales of wood and timber for such maintenance and support, or for the support of her children, with the privilege of disposing of any part of the principal derived from the sale of land, or from other sources, in such way and manner as she may think best." The will also provided, that at her decease, she might bequeath and devise by her last will, approved by her husband, any of said property; but if, at the time of her decease, there was any of the testator's estate not disposed of by her will, the same was to be held by an administrator de bonis non, or trustee, to be appointed by the probate court, for the benefit of said children during their minority, and to be paid over to them respectively in equal shares upon their attaining twenty-one years of age. The daughter was also authorized and directed, at her discretion, to sell any or all of the real estate, at private sale or public auction, at her discretion, and invest the proceeds as her judgment shall dictate." The children, by their next friend, brought their bill in equity against their mother, alleging that a trust was created by these provisions for their benefit, that she was a spendthrift and was wasting the estate, and sought to restrain her from selling the land, and expending the proceeds thereof except upon such terms as the court might order. Held, that full control of all the property was given to the defendant; that the remainder to the plaintiffs was contingent upon the event that some estate should remain at the death of the defendant not disposed of by her will; and that no trust was created for the benefit of the plaintiffs. Opinion by ENDICOTT, J.-Taft v. Taft.

SUPREME COURT OF INDIANA.

February, 1881.

FRAUDULENT CONVEYANCE-VALUABLE CONSIDERATION.-Appellees sought to have a conveyance to appellant, Emily J. Brown, set aside upon the ground of fraud. A special verdict was returned by the jury, and a judgment was entered

If she

upon it in favor of appellees. The verdict does not find that there was any participation in the alleged fraudulent act or intent of Harvey Brown, by Emily J. Brown. It does find that the conveyance did, in fact, hinder and delay the creditors of Harvey Brown, but does not in terms find that the conveyance was executed with a fraudulent intent, or to carry into execution a fraudulent purpose. If, however, the verdict did find that the grantor was guilty of fraud, yet the grantee, if she paid a valuable consideration, would not be affected unless she had notice of the fraudulent purpose of the grantor. Was Emily Brown a purchaser for a valuable consideration? was, she is entitled to judgment on a special verdict; for it does not appear that she had notice of, or participated in, the grantor's alleged fraud. The special verdict found that Emily agreed to "join with her husband and convey all his other property, thereby relinquishing her contingent interest therein for the benefit of Harvey's creditors," if he would have the real estate in suit conveyed to he.. Held: The relinquishment of the wife's inchoate interest in the lands of her husband was a sufficient consideration to support the conveyance to her. 21 Ind. 398; 8 B. Mon., 326; 24 Mass. 533; 17 Pick, 500. Judgment reversed. Opinion by ELLIOTT, J.-Brown v. Rawlings.

JUDGMENT LIEN-SUBSISTING EQUITIES.-The general lien of a judgment creditor upon the lands of his debtor is subject to all equities which existed against such lands in favor of third persons, at the time of the recovery of the judgment. And courts of chancery will so control the legal lien of the judgment creditor as to restrict it to the actual interest of the judgment debtor in the property, so as fully to protect the rights of those who have a prior equitable interest in such property or its proceeds. 2 Barb. Ch. 165; 4 Ind. 46; 31 Ind. 34; 1 Paige, 125; 4 Paige. 9; 26 Ind. 319; 2 Wash. Real Prop., 42; 8 Allen, 536; 31 Cal. 321; 60 Ind. 591. In this case the plaintiffs, by contract and assignment, became entitled to retain the rents which should become due from themselves to the Monticello Hydraulic Company, by the terms of their lease, of lands and waterpower, for six years, if necessary, to repay them the amount of their expenditures in making certain repairs to the dam. The effect of this is that they held their own lease of gronnd and waterpower for that period, with the rent actually paid in advance, although by the terms of their lease the rent was payable quarterly. The appellant, Clark, was about to proceed to a sale of the property on execution, to satisfy a judgment which he claimed had priority over the rights and claims of plaintiff. This judgment was rendered after the work of repairing the dam by the plaintiffs was begun. Plaintiff prayed that the appellant, Clark, be enjoined from claiming any rights in, or to, said rents until the claim of plaintiffs is fully paid. It was eminently proper that the espective rights of the parties should be deter

mined before a sale. Judgment affirmed. Opinion by WOODS, J.-Monticello Hydraulic Co. v. Loughry.

-

PLEADING-COMPLAINT MUST SHOW TITLEPARTNERSHIP ACTION UPON BILLS OF EXCHANGE. The plaintiff, in an action upon a bill of exchange or promissory note, must show a right in himself to maintain an action thereon. 3 Blkf. 405; 59 Ind. 299; 35 Mo. 312. The complaint in this case alleges that Louis Snider, the drawer of the bill, is dead, and that plaintiffs "are his successors in and to his business, and as such are the legal and bona fide holders of the bill of exchange." The ownership plaintiffs claim is such, and such only, as the fact of their being the successors in business of Louis Snider confers upon them. The facts given as constituting the foundation of the claim of title are not sufficient to support it. In the form in which it is expressed, the statement that appellees are the owners is merely a conclusion of law drawn by the pleader from the two facts: Snider's death, and their succession to his business. These facts do not warrant conclusion of ownership by the appellees of the bills declared on. Where a firm, in which there are silent partners, is dissolved by the withdrawal of such silent partners, and the original firm name is used by the successors to the old firm, the retiring silent partners are only bound to give actual notice of their withdrawal to those with whom the old firm had had dealings, in order to save themselves from the liabilities of the new firm. The rule as to actual notice does not require that it shall be given to those who, as agents, represent the person with whom the firm deals, but that it shall be given to the principal. Reversed. Opinion by ELLIOTT, J.-Richardson v. Snider.

FRAUDULENT

PLEADING

CONVEYANCE PRACTICE.-Action by appellees against appellant, to set aside as fraudulent a certain conveyance of real estate. In such a case an allegation of the value of the real estate is not material in the complaint. In a suit to set aside a fraudulent conveyance of land, the complaint must show that the defendant had no property subject to execution at the time of the commencement of the action. The complaint in this case contains such averments. Interrogatories to a party may be filed at any time before the issues are closed or the right to file pleadings has terminated. Where several parties act in concert in an attempt to defraud the creditors of one of them, then the declarations of one, made before the common purpose was accomplished, would be admissible in evidence against all. The third instruction given the jury by the court is as follows: "Fraud is never presumed, but must be clearly proven. A conveyance of property made and received for the purpose of hindering, delaying and defrauding creditors, is void as against creditors. The burden of proving such fraud rests upon the creditor attacking it. But the proof is seldom direct proof, but

usually consists of a chain of circumstances that indicate and usually accompany fraud. They are: First, the parties sustain confidential relations to each other; second, concealment of the fact of the transfer of the title; third, the vendor being at the time of the transfer heavily indebted and pressed for the payment, by suit or otherwise; fourth, the existence of a recent prior contract, whereby the grantor is made to appear under obligations to make the transfer; fifth, the want of other property or means of the debtor sufficient to pay his debts." This instruction, though awkwardly framed and somewhat obscure, is not erroneous. Badges of fraud afford grounds of inference from which the jury are authorized to conclude that a transaction surrounded by them is fraudulent. The party against whom they are adduced is at liberty to explain them if he can, but if sufficient in number and importance, and not explained, they will supply substantial grounds for pronouncing a transaction void upon the ground of fraud. Where the grantor receives a valuable consideration from the grantee, the conveyance can not be adjudged fraudulent, unless it be shown that the grantee had notice of the fraudulent intent of the grantor. The wife of a debtor can not get title to land already owned by her husband by buying an outstanding claim which is without substantial foundation, and thus prevent it from being applied in payment of her husband's debts. The evidence sustains the verdict. Judgment affirmed. Opinion by ELLIOTT, J.-Sherman v. Hoagland.

- PRACTICE.- ComREVIEW OF JUDGMENT plaint to review a judgment. The original case, in which the judgment is sought to be reviewed, was a proceeding in attachment, in which certain parties filed their verified petition to the effect that they were the owners of the attached property, and asking that they be made parties defendant, which petition was granted. It is claimed that it was error for the court to allow the said parties to be made parties defendant. The motion of the said parties to be made defendants in the original action was founded upon and supported by their verified petition or affidavit; and it is clear that this verified petition or affidavit, and the ruling of the court thereon, could only have been made component parts of the record of the original cause, either by a bill of exceptions or by an order of the court. 50 Ind. 280; 66 Ind. 19. The supposed error of which appellant complains is not "an error of law appearing in the proceedings and judgment," and therefore was not such an error of law as would authorize and justify the review and reversal of the judgment in the original action, either on an appeal to this court or on a complaint for review. 45 Ind. 451; Busk. Prac. 271. Judgment affirmed. Opinion by Howk, J.-Rice v. Turner.

QUERIES AND ANSWERS.

[***The attention of subscribers is directed to this depart ment, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

18. Where a sheriff levies on property under a general execution, and a party holding the property replevies it, must he bring the action against the sheriff, or can he, under the statute of 1865 and decision in 53 Mo. 492, bring the action against the party plaintiff in the execution assenting, and ordering the same? Kahoko, Mo: Y.

19. In Texas, when there is a sale of land on a credit, evidenced by notes for the purchase money. and a vendor's lien is expressly retained in the deed on this land to secure the payment of the notes, this contract is held by our Supreme Court to be execu tory, and the vendor is said to have the superior title until the notes are paid. This being the law, A sells to B a tract of land on time, retaining in the deed expressly a lien to secure the payment of the purchasemoney, and B takes possession and cultivates the land. A railroad passes through the land, and an embankment is thrown up and constitutes the road-bed. This road was completed through the land long before the sale from A to B. The land lies contiguous to a stream which overflows in high water. While B is in possession under his deed from A, a flood comes which overflows B's crops on the land, and on account of the defective construction of the railroad embankment through the land, in not haviug a sufficient number of culverts, etc., B's crops are destroyed. B sues the railroad for damages to his crops, and for permanent and actual damages to the land,in washing the land,and depositing foreign matter on it, and removing the fencing. A's deed to B was on record long before the institution of this suit. A had actual notice of the pendency of B's suit against the railroad. B compromises the case with the railroad company, and releases the railroad company in the compromise judgment from all future damages to crops that may be caused by reason of floods overflowing the land in consequence of the defective construction of the embankment, and he also released all future damages to the land produced by the like cause. B afterwards failed to pay his notes to A for the land, and reconveys the land to A to satisfy these notes. Now, can A or his tenants, or vendees hereafter recover from the railroad either class of damages when they arise? LEX NON SCRIPTA.

QUERIES ANSWERED.

Query 11 [12 Cent. L. J. 143]. A purchases a ticket entitling him to a reserved seat at a theatrical performance. He enters the theater, and, at the conclusion of the first act, leaves the house, and not being disposed to return, sells the check or pass received from the door-keeper on leaving, together with the ticket for his seat, to B- is B entitled to admission upon the pass? BERNARD.

Answer. The contract between the manager of the theater and the ticket holder is a contract for the use of a certain seat by some person, i. e., the holder of the ticket. It is not a contract that a certain seat

shall be occupied by a certain person. It is a contract or so much space which the ticket holder may occupy by himself or by his friend, or which he may leave unoccupied. The right to use or occupy that seat or that space is, for the time being, his property; he has bought it, and he may either exercise that right himself, or he may sell or assign it to another, provided there are no personal objections to that other. If Bis a person to whom there would have been no objections, had he been the original holder of the ticket, he is entitled to admission upon the pass. M.

Answer. As to the main questions there is a great scarcity of decisions. As a general rule all legal estates in land may be taken and sold under execution. Herman on Executions, sec. 172. A defeasible estate may be taken in execution at any time before the happening of the contingency by which it was to be terminated. Phillips v. Rogers, 12 Met. 405. The term of a lessee, holding by a lease which prohibits any transfer of the estate by him, may be taken on execution. Doe v. Carter, 8 T. R. 57. In a case of a conveyance of land upon condition that the grantee should support the grantor for life, it was held that the estate of the grantee, after he had failed to provide support, could not be taken on execution, although it might before. Thomas v. Record, 47 Maine, 500. It would seem that the common-law execution, being in invitum and not voluntary, might be effectual. But as to the fundamental question, whether such restraints upon alienation are valid, there has been much diversity of decision. The Supremo Court of Z's own State, Kentucky, expressly holds that a restriction upon the power of sale of a fee for ♣ particular time is good. Stewart v. Brady, 3 Bush, 623; Stewart v Barrow, 7 Bush, 368; Jackson v. Shutz, 18 Johns. 184; Dougal v. Fryer, 3 Mo. 40; l'erkins v. Clack, 3 Head (Tenn.) 434. Shonk v. Brown, 61 Pa. St. 320, also considers this question under various circumstances. The fountain head of all the authorities holding such restrictions valid is Large's Case, 2 Leon. 82; 3 Leon. 182. But in the Supreme Court of Michigan, Christiancy, J., in one of his most carefully considered and well reasoned cases, holds (Graves, C. J., and Cooley, J., concurring), after a very exhaustive and thorough investigation of all the English and American cases, from Large's Case down, that such restraints upon alienation are void. In closing the court say: "We are entirely satisfied that there has been a time since tha statute quia emptores, where a restriction in a conveyance of a vested estate in fee simple in possession, or remainder against selling for a particular period of time, was valid by the common law. And we think it would be unwise and injurious to admit into the law the principle that such restrictions should be held valid, if imposed only for a reasonable time. The only safe rule of decision is to hold, as I understand the common law for ages to have been, that a condition or restriction which would suspend all power of alienation for a single day is inconsistent with the estate granted, unreasonable and void." Mandelbaum v. McDonnell, 29 Mich. 78. While this last case is not directly responsive to the query, it will be of interest to any

who have occasion to investigate the question as to the validity of such restrictions. M.

Battle Creek, Mich., March 29, 1881.

RECENT LEGAL LITERATURE.

Removal of Causes from State Courts to Federal Courts, with Forms adapted to the several Acts of Congress on the Subject. Third Edition, Revised and Enlarged. By John F. Di'lon, Professor of Equity Jurisprudence and Real Estate in the Law School of Columbia College, and Late Circuit Judge of the Eighth Judicial Circuit, Author of a Treatise on Municipal Corporations, etc. St. Louis, Mo. William H. Stevenon, Law Publisher. 1881.

This monograph on the subject of the Removal of Causes has been gradually expanded by the addition of new cases, and a fuller statement of the law, until we have now before us a volume of about 200 pages. The cases have accumulated very rapidly of late under the influence of the somewhat liberal provisions of the act of 1875. It is quite probable that the author of that act intended it to be in lieu of all former acts; but it turns out that the act of 1867 remains still in force. Taking the entire history of the legislation on the subject, together with the infinite diversity of cases that have arisen, and that may arise as to the relationship of the parties, and the subject-matter of different suits, the law affords scope for a good deal of learning, which should be familiar to most lawyers. Judge Dillon's treatise contains all that is essential to the investigation of the topic in all of its aspects; and it has, consequently, met with unusual favor at the hands of the profession. The present edition contains reference to a good many new cases, and illustrates the progress of judicial decision down to the beginning of the present year. Convenient forms are added, designed to meet the various classes of cases provided for in the statutes. The opinions of the judges of the Supreme Court of the United States in the removal cases, and in the case of the New Orleans R. Co. v. State of Mississippi, decided at the present term, arc given in full. It is needless to speak of the utility of the work. It speaks for itself.

NOTES.

U. M. ROSE.

The following description of the opening scenes of the trial of the Russian regicides, clipped from the telegraphic columns of the New York Tribune, may be found interesting: "The prisoner Jeliaboff conducts his own defense. The space

usually occupied by the jury is reserved for distinguished persons, including Prince Pierre, of Oldenburg. The admission to the court is only by ticket. The strictest control is maintained. Ten seats are assigned to the foreign press and five to the Russian press. A life-size portrait of the late Czar, draped in black, is a prominent feature of the hall. Senator Fuchs, a member of the High Court of Cassation, presides over the court, assisted by four Senators, M. Touravieff, assistant prosecutor of St. Petersburg, and M. Postozki, assistant prosecutor of the district tribunal. The reading of the indictment occupied two hours. The prisoners were then interrogated. The prisoners declined to state their names, ages, professions or domiciles. A decision of the court was read, rejecting a protest, which was addressed by the prisoner Jeliaboff to the court, and which maintained that the tribunal ought to be constituted directly by the people, or by its legally elected delegates, and that in any case the prisoners should be tried by jury. Jeliaboff, replying to the President, said that he was baptized as a member of the Orthodox Church, but denied its orthodoxy. He recognized the doctrine of Jesus Christ, which, he said, occupied an important place in his convictions. When asked as to his profession, he said he served the cause of the people, and that was his sole occupation, to which, for years, he had sacrificed his whole being.".

-A well-known Wisconsin lawyer, against whom Matt Carpenter was once trying a case, persisted in asking his witness leading questions. Carpenter completely discomfited him, however, not by formal objection, but by dryly suggesting whether it would not contribute to the orderly administration of justice if his friend would at least filter the evidence through the witness.

-A Connecticut lawyer at Bridgeport, the other day, took exception to a judge's ruling that some evidence was inadmissible. He said, "I know that it is proper evidence. Here I have been practising at the bar forty years, and now I want to know if I am a fool?" "That," quietly replied the court, "is a question of fact and not of law, and so I won't pass upon it, but will let the jury decide."

Oriando-"Whom doth Time gallop withal?" Rosamond-"With a thief to the gallow; for though he go as softly as foot can fall,he thinks himself too soon there." Orlando-"Whom stays it still withal?" Rosamond-"With lawyers in the vacation; or they sleep between term and term, and then they perceive not how Time moves.”— From As You Like It.

Counsel (to witness): "You're a nice sort of a fellow, you are!" Witness: "I'd say the same thing of you, sir, only I'm on my oath.”