Exemption imports competency, and the immunity should only be claimed by the privileged person. The presence of such person on the grand or petit jury ought not to be held sufficient to justify quashing an indictment or arresting a judgment. The case of State v. Quimby, 51 Me. 395, already cited, decides that the same rule and test will be applied to both grand and petit jurors, and we think that is right. Inasmuch as we think this is not a case in which a writ of error will lie, the assignment of errors will be quashed. Assignment of errors quashed. UNITED STATES SUPREME COURT AB- record to be contested only in such a way as judgments CONFLICT OF LAW - MORTGAGE REDEMPTION UNDER ILLINOIS STATUTE - RULE OF FEDERAL CIRCUIT COURT INTEREST TO PURCHASER — CONTRACT GOVERNED BY LAW AT TIME OF INCEPTION. — (1) The statutes of Illinois relating to the redemption of mortgaged property from sales under decree of the Federal courts, examined. (2) While the local law giving the right of redemption, first to the mortgagor, then to judgment creditors, is a rule of property obligatory upon the Federal court, it is competent for the latter by rules to prescribe the mode in which redemption from sales under its own decrees may be effected. The rule in the Circuit Court of the United States for the northern district of Illinois, requiring a judgment creditor to pay the redemption money to the clerk of that court and not to the officer holding the ex APPEAL --- WAIVER OF ERRORS BARRING, WHEN NOT IMPLIED INJUNCTION - ΤΟ RESTRAIN SUIT ON JUDGMENT OF ANOTHER STATE. (1) No waiver or release of errors, operating as a bar to the further prosecution of an appeal or writ of error, can be implied, except from conduct which is inconsistent with the claim of a right to reverse the judgment or decree, which it is sought to bring into review. If the release is not expressed it can arise only upon the principle of an estoppel. Accordingly where as a condition of a decree the party in whose favor it was made was required to pay his adversary a specified sum of money, which sum was paid and accepted by the adversary, held that this did not preclude an appeal from the decree by the latter. (2) An action was brought in the Supreme Court in the District of Columbia, which court obtained jurisdiction of the parties and the defendantsecution, sustained as being within the domain of prachad an opportunity to defend and did defend. A verdict was rendered against defendants who moved for a new trial which was refused and defendants appealed to the General Term which affirmed the refusal and a judgment against defendants. An action was brought on the judgment in Connecticut. Thereupon defendants filed a petition in equity asking for an injunction to restrain the prosecution of the suit on the judgment, alleging lack of opportunity to defend at the trial in which the judgment was rendered, that they were misled by certain acts of plaintiff, and also that plaintiff was guilty of fraudulent concealment of a defense in part to the action, etc. Held, that there was no ground for an injunction by the Connecticut court restraining the action on the judgment. The judgment was conclusive between the parties, upon all the points made in the equity suit, in the jurisdiction where it was rendered, and was entitled to be so regarded in the courts of Connecticut. In restraining further proceedings upon it, the court of that State did not give it that due effect to which, under the authority of the Constitution and laws of the United States, it was entitled. The judgments of the courts of the United States have invariably been recognized as upon the same footing, so far as concerns the obligation created by them, with domestic judgments of the States, wherever rendered and wherever sought to be enforced. Barney v. Patterson, 6 Har. & Johns. 182; Niblett v. Scott, 4 La. 246; Adams v. Way, 33 Conn. 419; Womack v. Dearman, 7 Port. 513; Pepon v. Jenkins, 2 John's Cas, 119; Williams v. Wilkes, 14 Penn. St., 228; Turnbull v. Payson, 95 U. S. 418; Cage's Ex'rs v. Cassidy, 23 How. 109; Galpin v. Page, 3 Saw. 93. The rule for determining what effect shall be given to such judgments is that declared by this court in respect to the faith and credit to be given to the judgments of State courts in the courts of other States, in the case of M'Elmoyle v. Cohen, 13 Pet. 312, where it was said: They are record evidence of a debt, or judgments of tice, and not affecting the substantial right to redeem within the time fixed by the local statute. Brine v. Insurance Co., 96 U. S. 627; Alliş v. Insurance Co., 97 id. 144. (3) The Illinois Statute of 1879, entitling the purchaser in case of redemption to receive interest upon his bid at the rate of eight per cent. per annum, (the previous law prescribing ten per cent), is applicable to all decretal sales of mortgaged premises thereafter made, although the mortgage was given before the passage of that statute. Such reduction in the rate of interest did not impair the obligation of the contract between mortgagor and mortgagee, because the amendatory statute did not diminish the duty of the mortgagor to pay what he agreed to pay, or shorten the period of payment, or affect any remedy which the mortgagee had, by existing law, for the enforcement of his contract. (4.) The purchaser at decretal sale is entitled to interest at the rate prescribed, by statute when he purchased. The amendatory statute operated proprio vigore, to change the rule of court previously fixing the rate at ten per cent (5) The existing laws with reference to which the mortgagor and mortgagee must be assumed to have contracted are those only in which in their direct or necessary legal operation controlled or affected the obligations of their contract. Green v. Biddle, 8 Wheat. 1; McCracken v. Hayward, 2 How. 612; Planters' Bank v. Sharp, 6 id. 327; Edwards v. Kearsey, 96 U. S. 601. Connecticut Mutual Life Insurance Co. v. Cashman. Opinion by Harlan, J. [Decided March 5, 1883.] DEFINITION ACT. - The designations qualified by the word "cotton," in the act of July 30, 1846, relating to custom duties, are designations of articles by special description, as contradistinguished from designations by a commercial name or a name of trade, and are designations of quality and material. In Homer v. Collector, MEANING OF COTTON IN TARIFF 1 Wall. 486, almonds were held not to be included in the term "dried fruit." In Reiche v. Smythe, 13 Wall., the word "animals" was held not to include "birds." In Movious v. Arthur, 95 U. S. 144, the general designation finished skins " was held not to cover patent leather, the view being that although patent leather was a finished skin something was done to it after it could be called a finished skin to make patent leather of it. In Arthur v. Lahey, 96 U. S. 112, laces made of silk thread were declared to be "thread laces" rather than "silk laces." Cochran v. Schell. Opinion by Blatchford, J. [Decided March 19, 1883.] REMOVAL OF CAUSE CORPORATION CHARTERED IN TWO STATES. The Memphis and Charleston Railroad company is made by the statutes of Alabama in Alabama corporation; and although previously incorporated in Tennessee also, cannot remove into the Circuit Court of the United States a suit brought against it in Alabama by a citizen of Alabama. It being a corporation of the State of Alabama, has no existence in that State as a legal entity or person, except under and by force of its incorporation by that State; and although also incorporated in the State of Tennessee, must as to all its doings within the State of Alabama, be considered a citizen of Alabama, which cannot sue or be sued by another citizen of Alabama in the courts of the United States. Ohio & Mississippi R. Co. v. Wheeler, 1 Black. 286; Railway Co. v. Whitton, 13 Wall. 270. Memphis & Charleston Railroad Co. v. State of Alabama. Opinion by Gray, J. [Decided March 30, 1883.] MINNESOTA SUPREME COURT ABSTRACT. CARRIER-LIABLE FOR CONVERSION BY DELIVERY CONTRARY TO DIRECTION-MEASURE OF DAMAGE.Plaintiff who had sold a quantity of corn to be paid for before delivery, and upon which a part of the purchase price had been paid, delivered the corn to a railway company for shipment on account of plaintiff and subject to his order. The railway company without plaintiff's consent delivered the corn to the purchaser. Held a conversion, and that the railway company was liable to plaintiff for the purchase price of the corn, but might prove in mitigation of damages that the purchaser had paid plaintiff the full purchase price. The general rule of damages in trover is the value of the property, with interest. This is modified in some instances by the relations to the property of the parties to the action. If the case is in such situation that the rights of both parties can be adjusted in the same action, and the plaintiff can be indemnified by a sum less than the full value, it may be so done, and circuity of action be avoided. Chamberlin v. Shaw, 18 Pick. 283. Thus where the plaintiff has a special property in goods, his damages as against the general owner is the value of his interest only. Packet Co. v. Robertson, 13 Minn. 293; Dodge v. Chandler, id. 120. But in an action by such plaintiff against a stranger, he will be entitled to the full value of the goods, holding the surplus over the amount of his own claim as trustee for the general owner. Sedgw. Dam. 482. And defendant may show, in mitigation of damages, any lawful application of the property or its avails to the use of the owner, though the latter is not a party to the suit, because the plaintiff is not answerable over in such case. Becker v. Dunham, 27 Minn. 32; Squire v. Hollenbeck, 9 Pick. 551; Lowell v. Parker, 10 Met. 316-17; Kaley v. Shed, id. 319. So also where the property has been returned and received by the plaintiff in the suit, or its proceeds have, by due pro cess, gone to pay his debts. Pierce v. Benjamin, 14 Pick. 361; Ball v. Liney, 48 N. Y. 6; Dailey v. Crow. ley, 5 Lans. 301; Bates v. Cartwright, 36 Ill. 518; Rosenfield v. Express Co., 1 Woods, C. C. 131. And in general the right of the plaintiff in trover to recover the full value of the goods is subject to any lawful lien, claim, or interest which the defendant may have in them, to be adjudicated in the same action. The allowance of such matter in mitigation is an applica tion of the doctrine of recoupment, where there is privity between the parties. Parish v. Wheeler, 22 N. Y. 511-12; Russell v. Butler, 21 Wend, 304. Johnson v. Stear, 15 C. B., N. S. 330; Fowler v. Gilman, 13 Met. 268; Chinery v. Viall, 5 Hurl. & N. 288. Jelletts v. St. Paul, Minneapolis, etc., Railway Co. Opinion by Vanderburgh, J. [Decided March 7, 1883.] EASEMENT OF LATERAL SUPPORT IN STREFT-ASSESSMENT.-In grading a street a city made an excavation in front of plaintiff's property and of an adjoin ing lot, and erected a retaining wall along the front of the property to supply the lateral support thereto, which became necessary by reason of the removal of the natural support of the soil. The cost of the wall was assessed upon the property in front of which it was erected. Held, that the assessment was not authorized. Iu Dyer v. City of St Paul, 27 Minn. 457, it was decided that a landowner upon a public street has a right to the lateral support of the soil within the street, aud may recover damages from a municipality for the removal of such natural support. A city may not divest the landowner of what he is entitled to enjoy as a natural right, and then tax upon him the cost of replacing what has been thus taken away. Armstrong v. City of St. Paul. Opinion by Dickinson, J. [Decided March 9, 1883.] WATER-COURSE-RIGHTS OF MILL OWNERS AS TO USE OF-CASTING SAW-DUST IN STREAM.-The casting of saw-dust into a stream whereby the mill of a riparian owner below is clogged np, and prevented from operating to its full capacity, and whereby he is required to keep extra help to prevent the saw-dust from choking up his flume, held not to be a reasonable use of the stream by the upper owner although his mill would be useless unless he threw such saw-dust into the stream, he having no other way to remove it. The rules of law applicable to cases of this kind are, as settled by the authorities as follows: 1. The general principles which govern the abstraction or diversion of water must govern in respect to the deposit of waste matter in the stream, resulting from the process of manufacturing, viz., reasonable use must be made, and nothing more. Hayes v. Waldron, 44 N. H. 380. 2. The right of a party to the uninterrupted and full use of the water as it flows naturally past his land is not an absolute right, but a natural one, qualified and limited by the existence of the rights of others. His enjoyment must necessarily be according to his oppor tunities prior to those below him, and subsequent to those above him, and liable to be modified or abrogated by the reasonable use of the stream by others. Merrifield v. Worcester, 110 Mass. 216; Palmer v. Mulligan, 3 Caines, 308; Platt v. Johnson, 15 Johns. 213. 3. The law does not lay down any fixed rules for determining what is a reasonable use of the water of a stream by a riparian owner. What constitutes a reasonable use is not a question of law, but of fact, to be determined by the jury or the court from all the circumstances of the case. But like any other finding of fact, it is subject to review, and will be set aside if against the evidence or not supported by it. O'Riley v. McChesney, 49 N. Y. 673; Prentice v. Geigher, 74 id. 341; Merritt v. Brinkerhoff, 17 Johns. 306; Snow v. Parsons, 28 Vt.459. 4. In determining what is a reasonable use, regard must be had to the subject-matter of the use; the occasion and manner of its application; the object, extent, necessity, and duration of the use; the nature and size of the stream; the kind of business to which it is subservient; the importance and necessity of the use claimed by one party, and the extent of the injury to the other party; the state of improvement of the country in regard to mills and machinery, and'the use of water as a propelling power; the general and established usages of the country in similar cases; and all the other and ever-varying circumstances of each particular case bearing upon the question of the fitness and propriety of the use of the water under consideration. Davis v. Winslow, 51 Me. 264; Helrich v. Deachler, 6 Barr, 32; Prentice v. Geigher, supra; Thurbur v. Martin, 2 Gray, 394; Gould v. Boston Duck Co., 13 id. 412; Ang. Watercourses, 140d. 5. Evidence of the uniform and general custom in like cases is competeut, although of course not conclusive upon the question whether a use is a reasonable one. Usage in such matters is some proof of what is considered a reasonable and proper use of that which is a common right, because it affords evidence of the tacit consent of all parties interested to the general convenience or necessity of such use. Of course much would depend on the character and size of the stream and the uses to which it is adapted. Such evidence however might not be competent where the use of a navigable stream amounted to an interruption to the public right of navigation, which is always paramount to any mere private use by a riparian owner. Ang. Water-courses. 6. Whenever it appears that any use of a stream by one riparian owner interferes with the reasonable use of the stream by a lower riparian owner, to his injury, either by the interruption, diversion, obstruction, or pollution of the water, the burden of proof is upon the former to show that his use is reasonable, and the greater the injury is to the lower owner the greater necessity for such use must the upper owner show in order to establish its reasonableness. The reasonableness of such use must determine the right, and this must depend in a great degree upon the extent of the detriment to the riparian proprietors below. Red River Roller Mills v Wright. Opinion by Mitchell, J. [Decided Feb. 23, 1883.] MAINE SUPREME JUDICIAL COURT ABSTRACT.* CONTRACT-PLEADING AS TO TIME-ACTION-STATUTE OF FRAUDS-TERMINATION OF TENDER.- (1) The general rule in torts and parol contracts is that the day when the tort was committed or the contract made, is not material. When made material by the defendant's plea, the plaintiff may reply by another day. (2) On a contract, which by its terms continues indefinitely, no cause of action can exist till its breach. (3) To bring a case within the statute of frauds, R. S., ch. 111, § 1, it must affirmatively appear that it could not have been performed within a year. (4) When by the terms of a contract the rent of an old piano was to go in payment for a new piano, the change of the rent by the agreement of parties is no termination of the contract. (5) A tender, when necessary by the terms of a contract, becomes unnecessary to be made to a party who in advance announces that he will not receive it and denies the existence of such contract. Duffy v. Patten. Opinion by Appleton, C. J. [Decided Feb. 15, 1883.] *To appear in 74 Maine Reports. LIMITATION IN ACTION AGAINST CARRIER FOR INJURY TO GOODS.-In an action against a railroad company to recover damages for delay in transporting flour, it appeared that plaintiffs shipped several lots of flour. All of it ultimately arrived and was delivered to plaintiffs; but none of it arrived in seascu. Some of it arrived more and some of it less than six years before the commencement of the suit. Held, that whatever damage was occasioned by such delay, occuring more than six years before the commencement of the suit was barred by the statute of limitations, but for delay within six years, damage was recoverable. Jones v. Grand Trunk Railway Co. Opinion by Walton, J. [Decided Feb. 8, 1883.] MORTGAGE-SECURING SEVERAL NOTES—IN TRUST— MERGER.-(1) One who takes a mortgagee's title holds it in trust for the owner of the debt to secure which the mortgage was given. If a mortgage is given to secure negotiable promissory notes, and the notes are transferred, the mortgagee, and all claiming under him will hold the mortgaged property in trust for the holder of the notes. In such case it is not necessary that there should be any recorded transfer of the notes or mortgage. Nor is an assignment of the mortgage necessary. Nor is a written declaration of trust necessary. Moore v. Ware, 38 Me. 496; Buck v. Swazey, 35 id. 41; Johnson v. Candage, 31 id. 28. (2) A merger takes place only when the whole title, equitable as well as legal, unites in the same person. The cases, Mitchell v. Burnham, 44 Me. 286, and Torrey v. Deavitt, 12 Rep. 508, are not in conflict with this conclusion. Gordon v. Cheney. Opinion by Walton, J. [Decided Feb. 8, 1883.] PARTNERSHIP - DISSOLUTION SETTLEMENT-RESCISSION-DECEIT.-When two members of which a firm is composed settle their partnership affairs and dissolve, and one of them takes an assignment of the other's interest in the partnership property, paying therefor a sum agreed upon by them, and assumes the payment of the partnership debts, the effect of the arrangement is to extinguish the assignor's indebtedness to the firm and interest in it. Lesure v. Norris, 11 Cush. 328. If one of the parties is defrauded in the settlement, he may rescind the settlement or bring an action on the case for the deceit, but he cannot adhere to the settlement and resort to an action of assumpsit to recover any sum which the settlement purported to adjust. Bisbee v. Ham, 47 Me. 543; Potter v. Insurance Co., 63 id. 440. Farnsworth v. Whitney. Opinion by Walton, J. [Decided Feb. 8, 1883.] TAXATION-UNIFORMITY OF TAX ON FRANCHISE.— The' Maine Constitution requires all taxes upon real and personal estate to be apportioned and assessed equally, according to its just value. The Legislature have power to impose a tax on a franchise. Held, that a tax upon railroads, the amount of which is to be determined by an appraisal of the railroads, with their franchises, rolling stock and fixtures, but excluding the land, buildings, and fixtures outside the roadways, is a tax upon a franchise and not a property tax, and is constitutional. See Commonwealth V. Hamilton Manf. Co., 12 Allen, 298, and 6 Wall. 632. State of Maine v. Maine Central Railroad Co. Opinion by Walton, J. [Decided Feb. 8, 1883.] MISSOURI SUPREME COURT ABSTRACT.* ACTION-SPLITTING DEMAND-CLAIM HELD INDIVIDUALLY AND AS TRUSTEE.-One who holds a demand *To appear in 76 Missouri Reports. partly in his own right and partly in the right and for the benefit of another, is as to the other a trustee of an express trust, and cannot by assigning his own interest split up the cause of action, and thus deprive his cestui que trust of the right to have him enforce his rights by suit. Cable v. St. Louis Ins. Co., 21 Mo. 133; Wagner v. Jacoby, 26 id. 532; Wright v. Tinsley, 30 id. 395. Richardson v. Laclede County. Opinion by Norton, J. FIXTURES-TEST OF, WHAT CONSTITUTES-EVIDENCE OF CUSTOM.-(1)Whether a chattel becomes a fixture or not, does not depend so much upon the character of the fastening by which it is held down (whether slight or otherwise), as upon the nature of the article and its use as connected with the use of the freehold. As between the mortgagor and mortgagee, the true criterion consists in the united application of several tests: 1st. Real or constructive annexation of the article in question to the realty. 2nd. Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. 3d. The intention of the party making the annexation, to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation and the purpose or use for which the annexation has been made. State Savings Bank v. Kercheval, 65 Mo. 682; Ewell on Fixtures, 27; Strickland v. Parker, 54 Me. 265; Fisher v. Dixon, 12 Cl. & F. 312; Mathew v. Frazer, 2 Kay & J. 536; Buckley v. Buckley, 11 Barb. 43; Fisher v. Saffer, 1 E. D. Smith, 611; Dispatch Packet Line v. Manf. Co., 23 N. H. 282; Lathrop v. Blake, 23 id. 66; Burnside v. Twitchell, 43 id. 390. (2) As between landlord and tenant evidence of custom with respect to chattels annexed to the realty, by which they are treated as personalty, is admissible, but not so with respect to articles annexed by a mortgagor or grantor before the execution of his conveyance. Van Hess v. Pacard, 2 Pet. 137. Thomas v. Davis. Opinion by Henry, J. PROBATE LAW-DEVISE OF TRUST PROPERTY-CONFLICT OF LAW-PROBATE IN ANOTHER STATE.-(1) A deed in trust for the use of a married woman made it the duty of the trustee to convey the premises to such person as she might at any time designate in writing. By her last will she made her husband her residuary devisee. The trust property had never been conveyed in her life-time, and was not otherwise disposed of by the will. After her death the trustee con. veyed to her husband. Held, that this conveyance was a nullity, but the title passed by virtue of the residuary clause of the will. (2) The probate of a will in another State is a judicial proceeding, to the record of which full faith and credit is to be given, when authenticated as required by the act of Congress; and it is not necessary to the admission of such will with the probate thereof in evidence that they shall have been recorded in this State. Following Lewis v. St. Louis, 69 Mo. 595. Bradstreet v. Kinsella. Opinion by Heury, J. VOLUNTARY CONVEYANCE-HUSBAND TO WIFE.-(1) A gift by husband to wife will not be held void because it embraces all the property of the grantor; at least, not unless it is shown to be more than a reasonable provision for her. Story Eq. Jur. (11 ed.), § 1374; Hol. locher v. Hollocher, 62 Mo. 268. Wood v. Bradley Opinion by Henry, J CORPORATION-OFFICER MISAPPROPRIATING FUNDS LIABLE FOR PROFITS IF MADE-FOR INTEREST IF NOT. (1) In an equity suit brought by certain stockholders for themselves and such other stockholders as might join them against D. an officer of the corporation, and against the corporation, charging D. with the misappropriation of the corporate funds, it appearing that D. was liable as trustee for converting the funds, held, that D. was also liable for the profits made by his investment of the funds converted. (2) It not appearing that D. made any profit or more than simple interest from a portion of the converted funds not invested, held, that as to such portion he was chargeable only with simple interest, not with compound. See upon the subject: Attorney Gen. v. Alford, 4 DeG. M. & G. 843; Penny v. Avison, 3 Jur. (N. S.) 62; Burdick v. Garrick, L. R., 5 Ch. App. 233; Trustees etc., Imp. Fund v. Greenough, 14 Rep. 33. Hazar d v Durant. Opinion by Durfee, C. J. [Decided Nov. 26, 1882.] DEFINITION-CHILD.-The word "child" in a statute relating to the adoption of children, held to mean minor child. Petition of Moore. Opinion per Curiam. [Decided Dec. 2, 1882.] PARTITION-BETWEEN TENANTS IN FEE AND FOR YEARS. Full chancery powers conferred upon a court include a power to make partition between tenants in fee and tenants for years. 1 Story Eq. Jur., § 656. Baring v. Nash, 1 Ves. & Bea. 551; Wotten v. Copeland, 7 Johns. Ch 140; Wills v. Slade, 6 Ves. Jun. 498; Gaskell v. Gaskell, 6 Sim. 643. Calland v. Conway. Opinion by Durfee, C. J. [Decided Oct. 4, 1882.] PROBATE LAW-EXPENSES OF APPEAL BY EXECUTOR FROM DECREE, PROPER EXPENSE OF ADMINISTRATION. are On appeal from the decree of a Probate Court prov ing a will, the executor named in the will, may if acting in good faith, prosecute the probate in the Appellate Court at the expense of the estate. The reasonable expenses incurred by such executor in so doing necessary expenses incident to administration." The person alone by whom the testament can be proved is the executor named in it, whom the court of probate may cite to the intent to prove the testament aud take upon him the execution thereof, or else to refuse the same. 1 Williams Exec. 311; 1 Salk. 308; Swinb. pt. 6, § 12, pl. 1; Godolph, pt. 1 ch. 20, § 2. "The executor is presumed to have the custody of the will, and he is the only person who can in the first instance properly prove the will." 3 Redfield Wills, 8. In Bradford v. Boudinot, 3 Wash. C. C. 122, the court say: "The executor believing the paper under which he acts is the last will, is authorized, and it is his duty to support the first probate, and he is entitled to retain the expense of the litigation out of the estate." See also Enloe v. Sherrill, 6 Ired. 212; Stebbins v. Lathrop, Spraggins, 3 Grat. 529, 542, the court thus state the law: 4 Pick. 33; Smith v. Moore, 6 Me. 274. In Wills v. "The ecclesiastical courts, as is well known, have jurisdiction only of wills of personalty, and regard the executor named as the only proper person to propound the will for probate, whether voluntarily or upon the citation of others interested in the subject. He is the representative of the will, and of all interests created by it, and moreover, the legal owner of the testator's personal estate. It is therefore his right and his duty to obtain for the instrument the sanction prescribed *To appear in 14 Rhode Island Reports. by law." In Henderson v. Simmons, 33 Ala. 291, it is said: "It is the privilege, if not the duty, of one named as executor of a paper, purporting to be a last will and testament, to propound it for probate. If he have no knowledge or reasonable ground on which to predicate a well grounded suspicion against the legality of the will, and propound the paper in good faith, he but carries out the intention with which he was appointed. Any reasonable costs and expenses incurred by him in the honest endeavor to give effect to the will, is a proper charge on the estate in his hands." This seems to be not only good law but also good sense; for the will may give to persons who are either not yet in being or not yet ascertained, and who therefore cannot protect themselves, and whose rights might be sacrificed by a rejection of the will, unless the executor should take on himself the duty of establishing it. The cases Andrews' Exrs. v. Andrews' Admr. 7 Ohio St. 143; Brown v. Vinyard, Bailey Eq. 450; Meek v. Allison, 67 Ill. 46, and Edwards v. Ela, 5 Allen, 87, distinguished. Hazard v. Engs. Opiuion by Durfee, C. J. [Decided Oct. 4, 1882.] TRIAL-ACTION OF COURT IN ABSENCE OF ATTORNEY -PARTY BEING PRESENT.- After the defendant's counsel had left the court-room, the jury came in and reported that its members differed on a question of fact and were unable to agree, whereupon the defendant being present, but his counsel absent, the presiding justice gave additional instructions to the jury aud caused the phonographic clerk to read to the jury his report of the defendant's evidence. After verdict for the plaintiff, held, that the defendant had no ground for exception, hlexander v. Gardiner. Opinion by Durfee, C. J. [Decided Oct. 14, 1882.] GEORGIA SUPREME COURT ABSTRACT. LIEN-WHEN PURCHASER FOR VALUE PROTECTED FROM EQUITY AGAINST LAND.-Where two exchange laud, possession being actually taken of the land, but deeds not executed at the time of the exchange, notice of an equity against one of the vendors, which notice was given after possession was taken but before the deeds were executed, will not affect the land exchanged by him. A purchaser having taken possession and paid in full the consideration, could defend himself against an action of ejectment by one holding the naked legal title. So he could maintain ejectment notwithstanding the deed had not been executed to him. He could compel specific performance. Therefore he should be protected from equities of which he had no notice until after he had taken possession and paid the consideration due, although it was given before he had obtained a deed. This view is in keeping with the spirit of the law as shown by the decisions. Temples v. Temples. Opinion by Hall, J. [Decided Feb. 13, 1883.] MASTER AND SERVANT-BURDEN OF PROOF-NEGLIGENCE. In an action for injury by negligence by an employee against his employer if the plaintiff fail to make out a prima facie case entitling him to a recovery, the award of a non-suit is proper, though the question be one of negligence. A knowledge of the dangerous character of the tool which he uses is fatal to recovery by the employee, for the injury received from the use of such tool. Nor does it vary the case that the employee knowingly undertakes to use a dangerously defective tool, under the immediate command of a superior employee. Bell v. Atlantic & Great Western Railroad Co. Opinion by Jackson, C. J. [Decided April 10, 1883.] MASTER AND SERVANT-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-KNOWLEDGE OF DANGEROUS SPOT —CARRIER.—In an action for personal injury to plaintiff, a passenger on defendant's railroad, it appeared that plaintiff accepted a free pass over the road of defeudant, which pass stated that it was given to him as agent of company at No. 5%; that plaintiff lived at 5% and had lived there for many years, owning the fee of the property surrounding the station and of the store house used as a place of temporary deposit for the company's freight; that he was thoroughly familiar with the surroundings of said station and with the pit into which he fell; that the night train on defendant's road did not usually stop at No. 5, but on the night of the accident to plaintiff did stop, as a favor to him, putting him off at some distance from the store house, where trains stopped in the day time; that plaintiff reached his store house in safety, but instead of going the public road, which led directly by his residence, undertook to use a path which ran along the right of way of defendant's road; that he fell into a pit in the bottom of which was a sharpened stake on which he was impaled; the pit had been used as a means of procuring water by the company, but such use had been long discontinued, plaintiff himself having at one time cleaned it out with the intention of making a bath pool; it was alleged, and there was some proof that shortly before the accident the bushes, etc., growing in and around the pit had been cut away by the employees of the company, and that there was no agent of the company at No. 5%, unless plaintiff might be so considered, he having occasionally acted in that capacity. Held, that under the facts stated plaintiff was estopped from denying that he was agent for the company and its employee, so far as the trip was concerned for which he was using the pass. The plaintiff not being injured in the running of trains, but by the negligence of those concerned in cutting away from the pit the bushes, etc. (if such cutting was negligence), and leaving it in the condition it was when the snag pierced him, who were his co-employees, or of those over them at this depot, the rule laid down in 57 Ga. 213, and 61 id. 586-590 cannot apply to him. If plaintiff was an employee of the road, and injured by co-employees engaged in business other than the running of trains, it does not matter whether or not he was concerned in the leaving of the pit exposed; the doctrine of contributory negligence applies to him, and if at fault he cannot recover. Even if the plaintiff be not considered an agent and employee of the company, the facts seem to us to show that his injury was caused by his own fault, and could have been avoided by the use of ordinary care. Henderson v. Central Railroad Company. Opinion by Jackson, C. J. [Decided Feb. 13, 1883.] PENNSYLVANIA SUPREME COURT ABSTRACT. CORPORATION-RAILWAY COMPANY NEGLECTING TO RESTORE HIGHWAY TO FORMER CRNDITION MAY BE INDICTED.-The Pennsylvania Statute provides that "if any railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable locations, and in as perfect a manner as the original road." Held, that this statute applied to a public road, that was such when a railroad in the construction of which its site was changed, was located although before the construction such road was embraced in city limits and became a street, and the company was liable to indictment for |