the plaintiff may proceed against him for the money by rule of court. 1 Chitty Gen. Pr. 681; Wood v. Wood,7 Jur. 325; Botten v. Tomlinson, 16 L. J. C. P. 138; s. C., 4 Fisher's C. S. Dig. 7811; Wilbraham v. Snow, 2 Saund. 47 (a) 1; Clerk v. Withers, 2 Ld. Ray. 1072. In Denton v. Livingston, 9 Johns. 96, in an action of assumpsit, with special counts, the court held that the action would lie against the sheriff for the amount of the sale of goods by him, under a venditioni exponas, though the purchaser to whom the goods were delivered refused to pay for them. There is no reason shown why he may not have a more summary remedy by motion. Other reasons are assigned for the discharge of this rule, and to these proofs outside of the return are offered.

The plaintiff's attorney answered that the purchase money might be paid to him at his office on the next day; but this was at the request and for the convenience of the sheriff who gave the credit, and to avoid the trouble of traveling several miles to meet the purchasers. Neither would the expression of an opinion by the plaintiff's attorney, that the purchasers were responsible, or able, be such an interference with the execution of the writ as to discharge the sheriff from liability. There should be some more distinct act of assuming the risk to operate as a release. But the cause of the failure to collect the sum bid at the sale, was not because the parties were unable to pay, but, as they allege, because the defendant in execution did not own the two barouches, and they took no title by the sheriff's sale. This, under the authorities, will be a good defense to the sheriff, if he can establish it satisfactorily. Hopkins v. Chandler, 17 N. J. 299; Wilbraham v. Snow, 2 Saund. 47 (a) (b); Brydges v. Walford, 6 M. & S. 42.

Doughty and Champion, who made the purchase of the two barouches at the sheriff's sale, through Daniel Dunn, their agent, claimed the property before the sale, by purchase from the father-inlaw of the defendant, after the levy under tne plaintiff's execution, and some time in the early part of June, 1878. The defendant, George Stranck, had a wheelwright shop, where he carried on business in his own name, at Absecom. His father-in-law lived in Philadelphia. The effort is made to prove by the testimony of Stranck alone, that at the time of the levy he was building and finishing the barouches for his father-in-law, who furnished the money for the materials, etc. But the evidence is unsatisfactory, and bears some of the ear-marks of fraud. The sheriff was fully indemnified by the plaintiff before the sale; he sold under the indemnification, and it was his duty to collect the purchase money before he delivered the barouches to the purchasers. He permitted them to go into the power and possession of the purchasers, with full consent, which is evidence of a delivery to them by him, and renders him liable for the amount of their bid.

After deducting the costs, sheriff's fees and commissions which may remain unpaid, the balance of the sum bid at the sale must be paid by

the sheriff to the plaintiffs in execution, and the rule will be made absolute.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF THE UNITED STATES October Term, 1880.

JURISDICTION — APPEAL FINAL DECREE.— Where, in a bill for the foreclosure of a mortgage, a receiver has been appointed and a writ of assistance issued directing the marshal to eject the parties in possession, and to place in possession the receiver, and the lessor of the tenants so sought to be ejected, not being a party to the original bill, files a petition praying that the marshal be enjoined from proceeding further in the execution of the writ of assistance, and that it be revoked, said lessor holding a tax title which had not matured, and upon hearing of said petition it was overruled and denied: Held, that no appeal to the Supreme Court of the United States lies from this order and ruling; that the appeal was improperly granted by the court below, and the case must be dismissed for want of jurisdiction; that the order in question was not a final decree in "a case of equity," and that the petition was not a bill in equity. Appeal dismissed. Appeal from the Circuit Court of the United States for the District of Kansas. Opinion by Mr. Chief Justice WAITE.-Hentig v. Page.

DECISION OF REFEREE, HOW FAR REVIEWABLE IN ERROR - EXCEPTIONS TO REPORT OF REFEREE.-1. Where under the act to regulate practice in civil cases in Missouri, a case was sent to a referee for final report subject to exceptions, and upon the coming in of the report of the referee numerous exceptions were filed by plaintiffs in error, which upon hearing by the court were overruled as a whole, and the report was confirmed, to which plaintiffs in error exceptedupon writ of error, it is held, "That it is doubtful, to say the least, whether cases tried in the circuit courts by a referee in States where such a practice exists, can be reviewed here;" that, although the act of 1872 (sec. 914, Rev. Stat.), prescribes that the pleadings, practice, forms and modes of proceedings in civil causes, other than equity and admiralty causes in the circuit and district courts, must conform as near as may be to those in force and use in like cases in the courts of record in the State in which said circuit or district court is held, the review of a case in this court is regulated by acts of Congress, and not by the laws of the States. United States v. King, 7 How. 844. By the judiciary act of 1789 (1 Stat. 80, sec. 12), it is provided that the trial of issues of fact in the circuit and district courts shall be by jury; but it has always been held that, if the parties waived a jury trial, judgment after trial by the court would not be erroneous.

Kearney v. Case, 12 Wall. 281. "Such a judgment, however, would not be reviewable here." Campbell v. Boyreau, 21 How. 226. The act of 1865 (Rev. Stat. secs. 649, 700) provides, however, that by consent, parties waiving a jury, issues of fact in civil cases may be tried and determined by the court. The doubt is whether the act of 1872 enlarges the existing modes of subjecting cases to review here. There is no express provision of that kind, and any allusion to a review here seems to be studiously avoided. The final determination of this question is postponed, as, if the trial before the referee be treated as a trial by the court, the judgment must be aflirmed. For all the purposes of our review, the facts, as found and stated by the court below, are conclusive. The Abbotsford, 98 U. S. 443. Under the act of 1865 (Rev. Stat. 649, 700), we can only determine whether the facts found below are sufficient to support the judgment, and to pass on the rulings of the court on the trial as presented in the bill of exceptions. The whole case turns on the overruling of the exceptions to the report. We have uniformly held that if a series of propositions is embodied in instructions (to the jury), and the instructions are excepted to in a mass, if any one of the propositions shall be correct, the exceptions must be overruled. Johnston v. Jones, 1 Black. 209; Rogers v. The Marshal, 1 Wall. 654; Harvey v. Tyler, 2 Wall. 338; Lincoln v. Claflin, 7 Wall. 132; Beaver v. Taylor, 93 U. S. 54. The same rule should be applied in cases of this kind. Affirmed. In error to the Circuit Court of the United Stares for the Eastern District of Missouri. Opinion by Mr. Chief Justice WAITE.-Boogher v. N. Y. L. Ins. Co.

BANKRUPTCY-FRAUDULENT PREFERENCE.

1. On a question whether the plaintiff in a judgment, on which goods were taken in execution, knew of the defendant's insolvency and of the intent to evade the bankrupt law, the knowledge of plaintiff's attorney is the knowledge of the plaintiff. 2. Where the debtor was son of the plaintiff, and actively contributed to having judgment rendered before it could have been done without such aid, this was procuring his goods to be taken on execution within the meaning of the 35th section of the bankrupt law as modified by the act of 1874. Hoover v. Wise, 91 U. S. 308; Wilson v. City Bank, 17 Wall. 487; Little v. Alexander, 21 Wall. 501. Reversed and proper decree ordered. Appeal from the Circuit Court of the United States for the District of Minnesota. Opinion by Mr. Justice MILLER. Rogers v. Palmer.

CORPORATIONS-ESSENTIALS TO SUBSCRIPTION. -A person who paid to an agent of an incorporated company a sum of money in part payment of subscription, and executed and delivered to said agent a bond expressing that it was in consideration of ten shares of stock in said company, and binding himself to pay at certain dates in instalments certain other sums of money,said bond after

wards coming into the possession of the company, who entered his name on their books as a stockholder, and published it among others in the lists of their stockholders: Held, that these facts were sufficient to constitute him a stockholder, so far as creditors of the company were concerned, although he never received any certificate of stock, nor paid nor was called upon to pay any of said instalments; and that, the company having become bankrupt, the assignee in bankruptcy could collect the amount of said instalments for the benefit of its creditors. The issuance of the certificate of stock was not material, inasmuch as it appeared otherwise that he had subscribed for the stock. and the company had accepted his subscription. Upton v. Tribilcock, 91 U. S. 45; Webster v. Upton, Id. 65. Affirmed. In error to the Circuit Court of the United States, for the District of Iowa. Opinion by Mr. Chief Justice WAITE.— Hawley v. Upton.

PUBLIC LANDS- TITLE BY RECORD-MANDAMUS.-Upon a petition by McBride for a mandamus to compel the Secretary of the Interior to deliver to him a certain patent for a quarter-section of public lands, which had been signed by the President, the seal of the United States affixed to it, and duly recorded in the proper book in the general land office and countersigned by the recorder, it was held, 1. That the Supreme Court of the District of Columbia is authorized to issue the writ of mandamus as an original process in cases where by the principles of the common law the party is entitled to it. 2. When a patent to a citizen for a part of the public lands has been regularly signed by the President, and sealed with the seal of the government, countersigned by the recorder and duly recorded, the right to its possession by the grantee is perfect, and a writ of mandamus will lie to the officer in whose possession it is, to compel its delivery. 3. In the progress of the proceedings to acquire, under the laws of the United States, a title to the public lands, there must, in all cases where the claimant is successful, come a period when the power of the executive ofcers, who constitute the land department, over those proceedings ceases. That period is precisely when the last official act has been performed which is necessary to transfer the title from the government to the citizen. 4. Title by patent from the United States is title by record, and delivery of the instrument to the grantee is not essential to pass the title, as in conveyances by private persons. 5. Therefore, when the officers whose action is rendered by the laws necessary to vest the title in the claimant, have decided in his favor, and the patent has been duly signed, countersigned and recorded, the title to the land has passed to the grantee, and there remains nothing more to be done by the land office but the ministerial duty of delivering the instrument, which can be enforced by mandamus. 6. An acceptance of the grant will, in such case, be presumed from the efforts of the grantee to secure the favorable action of the department, and es

pecially from the demand for the possession of the patent. Reversed. In error to the Supreme Court of the District of Columbia. Opinion by Mr. Justice MILLER. Mr. Chief Justice WAITE and Mr. Justice SWAYNE, dissenting. - United States ex rel. v. Schurz.

SPECIAL DEPOSITS-NATIONAL BANKS.-National banks, as a matter of law, are not responsible for the loss of special deposits. Nat. Bank v. Graham, 100 U. S. 699. Reversed. In error to the Supreme Court of the State of Vermont. Opinion by Mr. Chief Justice WAITE.-Whitney v. First Nat. Bank of Brattleboro.

HOMESTEAD-EXEMPTION FROM FORCED SALE. -By the Constitution of Texas of 1868, the homestead of a family was not subject to forced sale for debts, except for purchase money, etc. Sears and wife executed in 1873 a conveyance of their homestead, taking from the grantee a defeasance setting forth that the deed was executed as a security for certain promissory notes, the two instruments constituting in effect a mortgage. The mortgagee brought ejectment for the premises in the Circuit Court of the United States, contending that the mortgage passed the legal title to him, and he was entitled to possession of the property by reason of the non-payment of the notes secured by the deed. Held, that the homestead exemption provided by the Constitution of Texas can not be evaded by reason of the tribunal and form of procedure which the mortgagee adopted; that a forced dispossession, in ejectment is as much within the prohibition as a forcible sale under judicial process. Affirmed. Appeal from the Circuit Court of the United States, for the Western District of Texas. Opinion by Mr. Justice FIELD. — Lanahan v. Sears. REMOVAL OF CAUSE TO FEDERAL COURT.-A bill was filed in the Court of Common Pleas of Luzerne County, Pennsylvania, for an account of rents and profits and for a reconveyance of lands alleged to have been transferred to defendants as a security for money. Defendants answering, claimed the lands absolutely. Upon the trial on this issue, the bill was dismissed, and complainant appealed to the Supreme Court, where the decree below was reversed, the case reinstated, and the case was remanded for an account of rents and profits, etc., preparatory to a final decree. At this stage of the proceedings, and before any report of the Master had been filed, the defendants, having in the interim removed into Virginia, filed a petition to remove the suit to the Circuit Court of the United States. This petition was denied by the State court, and thereupon defendants, filing a copy af the record, asked the United States Circuit Court to take jurisdiction of the case, and upon its refusal to do so appealed to the Supreme Court of the United Statas. Held, that the application was too late; by the act of 1875. the petition shall be filed before the trial." This, it was held in the Removal Cases, 100 U. S. 473, means "before the trial is in good faith en

tered upon." The Supreme Court of the State granted no new hearing, it reversed the decree below, and then decreed upon the merits, remanding the case only for matters of detail. Affirmed. Appeal from the Circuit Court of the United States, for the Western District of Pennsylvania. Opinion by Mr. Chief Justice WAITE. -Jifkins v. Sweetser.

CHANCERY PLEADING BILL OF REVIEWPATENT FOR PUBLIC LANDS.-A bill in chancery to set aside a judgment or decree of a court of competent jurisdiction on the ground of fraud, must set out distinctly the particulars of the fraud, the names of the parties who were engaged in it, and the manner in which the court or the party injured was misled or imposed on. So, also, a bill to set aside or annul a patent of the United States for public lands, or to correct such a patent on account of fraud or mistake, must show, by like averments, the particulars of the fraud and the character of the mistake, and how it occurred. Affirmed. Appeal from the Circuit Court of the United States for the District of California. Opinion by Mr. Justice MILLER.-United States v. Atherton.

MUNICIPAL BONDS; CONSTITUTIONAL LIMITATIONS UPON THEIR ISSUE.-The City of Litchfield, Illinois, Jan. 1, 1874, issued bonds for the purpose of erecting water-works. The form of the bond recited that it was issued under the authority of an act of the General Assembly of the State of Illinois, approved April 15, 1873, and in pursuance of an ordinance of the said City of Litchfield, No. 184, approved Dec. 4, 1873. Neither the bond itself, nor the ordinance of the city, nor the act of assembly made any reference to the 12th section of article 9 of the State Constitution adopted in 1870, which declares "that no county, city, town, township, school district or other municipal corporation shall be allowed to become indebted, in any manner or for any purpose, to an amount including existing indebtedness, in the aggregate exceeding five per centum on the value of taxable property therein, to be ascertained by the last assessment for State and county taxes previous to incurring such indebtedness." Suit was brought to recover the amount of unpaid interest-coupons attached to certain of these bonds, and the defense set up was that the bonds had been issued in violation of the Constitution of the State. It appeared in proof that the indebtedness of the city before the issue of the bonds in question, exceeded the constitutional limit, five per centum of the assessed value of the taxable property of the inhabitants. It was upon this state of facts held by the court, that the foregoing article and section of the Constitution, beyond all question, withheld from the legislature the power to authorize municipal corporations to incur indebteduess beyond the constitutional limit. Law v. People, 87 Ill. 392; Fuller v. Chicago, 89 Ill. 294. The court further held that the evidence, by which the city sought to show that its indebtedness before the

issue of the bonds was beyond the constitutional limit, was not only free from serious objection, but apparently the best proof on these subjects that the law afforded, and that, if the evidence showed, as against a bona fide holder, that the bonds issued January 1, 1874, created an indebtedness beyond the prescribed limit, there was no escape from the conclusion that the bonds were void for the want of legal authority to issue them at the time they were issued. If, however, the court proceeds, the bonds in question contained recitals which upon any fair construction amounted to a representation that the city's indebtedness, increased by the amount of the bonds in question, was within the constitutional limit, then the city might have been estopped from disputing the truth of such representations as against a bona fide holder of its bonds. See Town of Coloma v. Eaves, 92 U. S. 490. "So in the more recent case of Orleans v. Platt, 99 U. S. 682, it was said that where the bonds on their face recite the circumstances which bring them within the power, the corporation is estopped to deny the truth of the recital." The bonds of the city of Litchfield contain, however, no such recital; for the statement that they were issued under the authority of the statute and in pursuance of the city ordinance, does not necessarily import a compliance with the Constitution. "The present action can not be maintained unless we should hold that the mere fact that the bonds were issued, without any recitals of the circumstances bringing them within the limit fixed by the Constitution, was, in itself, conclusive proof in favor of a bona fide holder, that the circumstances existed which authorized them to be issued. We can not so hold." Affirmed. In error to the Circuit Court of the United States for the Southern District of Illinois. Opinion by Mr. Justice HARLAN. Buchanan v. City of Litchfield.

SUPREME COURT OF MISSOURI.

November, 1880.

VALIDITY OF LIENS UPON PERSONAL PROPERTY TO BE AFTERWARDS ACQUIRED.-Bircher was the owner of a six-story building in St. Louis, adjoining the Laclede Hotel, and February 7, 1873, while work was in progress to convert it into a hotel, leased it to John W. and Walter Malin, tɔ be used by them, when completed, as a hotel. At that date, there were no fixtures or furniture in the building, but they were to be put in thereafter by the Malins, and were actually placed in the building in July, 1873. The term of the lease was ten years, commencing the of 187-, the annual rent reserved being $32,000, payable in monthly payments of $2,660.66, on the last day of each month. The lease contained this provision: "All fixtures, furniture and other improvements shall be bound for the rent and fulfillment of

other covenants herein contained on the part of the lessees." And any forfeiture for non-fulfillment of conditions therein might be enforced at any day or time, however distant, after such failure or default should happen. The concluding stipulation was: "This lease shall commence on the first of the month after the completion of said building, and the blanks shall be filled that day. It is further agreed that connections can be made with the Laclede Hotel." The building was completed August 1, 1873, and the blanks in the lease filled as of that date, and the lease duly recorded. In the meantime, the fixtures and furniture in question were placed in the building. February 9, 1874, the Malins borrowed $25,000 of Nannie M. Wright, and gave her a deed of trust on all the personal property in the Laclede-Bircher Hotel,the name of the combined buildings, to secure it. May 26,1875, she loaned them $10,000 additional, and took a deed of trust on the same property. She took these deeds with actual notice of the stipulations of the lease. Bircher entered and took possession of the property in the Bircher building, claiming a lien under the lease for rent in arrear, which was resisted by Nannie M. Wright on the ground that Bircher's lease failed to create a lien on the goods in question in law or equity. The judgment of the circuit court was in Bircher's favor, which was affirmed by the Court of Appeals. Held, upon an exhaustive review of the conflicting cases on the subject, that, on the facts stated, the stipulations of Bircher's lease gave him a valid lien on the property subsequently put into his building, which he was entitled to have enforced as a prior lien as against the deeds of trust for the benefit of Nannie M. Wright, taken with notice of such prior lien. Affirmed. Opinion by HENRY, J.- Wright r. Bircher.

WILLS-BEQUESTS FOR SUPPORT OF RELATIVES-TRUST ESTATE-LIEN FOR ADVANCES BY TRUSTEE-DISCRETIONARY POWERS OF TRUSTEE. -This controvorsy is between the representatives of Peter J. Hurck, deceased, and certain beneficiaries under the will of Rose D. Rice, in which Hurck was named as trustee, the object being to charge certain advances made by Hurck, as trustee under the will, to one of the beneficiaries upon the trust estate. The will, made in 1869, bequeathed to Hurck the entire estate, with power to sell, mortgage, or otherwise dispose of, as he might think proper. After providing for the payment of her debts, and the erection of a monument in Calvary Cemetery, the will directed Hurck to hold one-third of the estate for the benefit of the children of testatrix's sister. The fourth clause reads: "Out of the proceeds, interest, rents, income or profits of the balance of my estate, my trustee shall, from time to time, pay over to my brother, John M. Rice, such sum, or sums of money, as my brother may need for his support. Not knowing how much may be necessary for that purpose, I leave the amount entirely to the discretion of my said trustee, with the understanding that the aggregate shall not exceed the remaining