warranty of a yoke of oxen. After discussing the subject of the express warranty, the court said: 'Even without any express warranty in this class of contracts, the law has now become pretty well settled that where the special purpose of the buyer is made known to the seller, and the seller, with such knowledge, delivers the goods, the law implies that they are reasonably fit for the purpose specified. If the facts show that the buyer trusts to the judgment of the seller, the seller must see to it that he judges correctly. The question has been much discussed whether this doctrine applied in cases where the seller was not the manufacturer of the goods sold; but it is now settled that it applies generally in all sales of property for a special purpose, if the sale is made on the judgment and skill of the vendor.' In Badger v. Whitcomb, 66 Vt. 126, 28 Atl. Rep. 877, the seller made no representation in respect to the boards sold. The defendants had an opportunity to inspect them, and were requested by the seller to inspect them, and by inspecting them they could have discovered the defect. Held, that there was no implied warranty. In Howard v. Emerson, 110 Mass. 320, the instruction of the trial court, that if the plaintiff knew that the defendants wanted to purchase the cow for the purpose of immediately cutting it up into beef, for immediate domestic use, there would be an implied warranty that the cow was fit for that purpose,' was held erroneous, and the common-law rule was adhered to. The same doctrine was held in Giroux v. Stedman, 145 Mass. 439, 14 N. E. Rep. 538. The cases that are exceptions to this rule will generally be found to contain the element of deceit, as in Divine v. McCormick, 50 Barb. 116, in Wing v. Chapman, 49 Vt. 33, and in Maynard v. Maynard, 49 Vt. 297. In England, vendors of food are only liable for defects of which they had, or might have had, knowledge. See cases in notes to 2 Kent, Comm., supra."

CRIMINAL LAW-PARDON-APPEAL.-It is held by the Supreme Court of Indiana, in Manlove v. State, that where one, pending appeal from a judgment of conviction, accepts the governor's pardon, he is not entitled to review that part of the judgment assessing a fine and costs against him, the acceptance of a pardon being an admission that he was rightly convicted. "Appellant was convicted," says the court, "of seduction, and sentenced to the reformatory. The attorney-general, by verified motion to dismiss, shows that appellant, since taking this appeal, has married the complaining witness, and accepted the governor's pardon, conditioned on good behavior. Appellant admits these facts, but contends that he is entitled to a review of the proceedings because that part of the judgment which assesses a fine and costs against him remains in force. A party may not accept a benefit based on the legality of a judgment, and thereafter be heard to complain that the judgment is erroneous. 2 Enc. Pl. & Prac. 173-182, and cases cited; Glassburn v. Deer,

143 Ind. 174, 41 N. E. Rep. 376; McGrew v. Grayston, 144 Ind. 165, 41 N. E. Rep. 1027. In Garner v. Garner, 38 Ind. 139, appellant was defendant in divorce proceedings. Judgment for divorce, alimony and costs was rendered against him. After judgment, before appeal, he married another. His remarriage was shown in a motion to dismiss. He insisted that he had the right to have the judgment reviewed so far as alimony and costs were concerned. This court expressed the opinion that, 'having availed himself of the benefits of the judgment, he must bear its burdens.' In the similar case of Stephens v. Stephens, 51 Ind. 542, the court said: By his marriage after his divorce, in contemplation of law he admitted that he was legally divorced from his former wife.' The pardon did not relieve appellant of the judgment for costs. They are a debt for which he remains liable to officers and witnesses. Smith v. State, 6 Lea, 637; Ex parte Purcell (Ark.), 31 S. W. Rep. 738; Ex parte Gregory, 56 Miss. 164. But they were assessed as part of the judgment, which was based on a verdict of guilty. The assignments of error challenge the correctness of the judgment as an entirety. On a new trial appellant might interpose his pardon and his marriage. State v. Otis, 135 Ind. 267, 34 N. E. Rep. 954. It would be beyond the power of the State to force him to meet the information on its merits. The substantial element of the controversy has been eliminated. The question of appellant's liability to fine and costs cannot be reached except by overturning the judgment as a whole. He may not so attack the judgment, because, by asking and accepting executive clemency, he said, in effect, that he was rightly convicted. He may not admit guilt to escape imprisonment, and at the same time protest innocence to avoid payment of fine and costs."

RES JUDICATA NOTES - INNOCENT PURCHASERS.-In Commercial Bank v. Toklas, 56 Pac. Rep. 927, decided by the Supreme Court of Washington, it appeared that an innocent purchaser of two notes, for the same amount, executed by the maker while he was owing the payee only the amount of one of them, collected one of them of a person who had assumed the maker's debts, and then sued him on the other, but failed to recover. It was held that the judgment was not res judicata, precluding the purchaser from maintaining a suit on such other note against the maker. It was further held that one having executed two notes for the same amount, while he was owing the payee only the amount of one of them, being sued on one of the notes by an innocent purchaser of both after the purchaser had collected the amount of one, cannot, under a plea of payment, show that the purchaser had received all that he had advanced for the notes. The court said in part: "The sole question to be determined upon this appeal is whether the payment of the second note by the MacDougall & Southwick Company constituted, in law, a payment of

the note in suit. The learned counsel for the respondents contend, and, as we have observed, the trial court held, that the payment made by the MacDougall & Southwick Company should have been applied by the appellant in satisfaction of the note under consideration, and that the application of such payment to the satisfaction of the second note was a wrongful diversion of such payment; and, in support of their contention, counsel cite the case of Commercial Bank v. MacDougall & Southwick Co. (Sup.), reported in 40 N. Y. Supp., at page 189, which they claim is decisive of this question. It seems that the appellant instituted an action in the State of New York against the MacDougall & Southwick Company to recover the amount of the note sued on in this case, on the theory that it evidenced an obligation of Toklas, Singerman & Co., which the MacDougall & Southwick Company had agreed to pay, and, it appearing that the MacDougall & Southwick Company had previously paid all that Toklas, Singerman & Co. owed Holland & Co. at the time it assumed the payment of the debts of Toklas, Singerman & Co., the supreme court of that State very properly held that the action could not be maintained. The only questions necessary to be determined by the court in that case were. What was the indebtedness of Toklas, Singerman & Co. to Holland & Co. on July 15, 1891? and, Had such debt in fact been paid? The court, though recognizing the fact that the action was not, in a legal sense, an action on the note, concluded that the first note was that which represented the indebtedness for which the MacDougall & Southwick Company was liable, and that the money paid by said company should have been applied in discharge of that note, and that the court would so apply it. But we are unable to perceive how it can successfully be maintained that that case determined the rights of the parties in the case at bar. As between the makers of these two notes and the payee, Holland & Co., the two notes represented but one and the same indebtedness, and the payment of one to Holland & Co. would have been a payment of both. And, as it is a conceded fact that both notes were for the same amount, and that amount was the sum which the MacDougall & Southwick Company had obligated itself to pay, it is clear that, when that company paid and took up the second note, it fully discharged its obligation, and was not thereafter concerned with regard to any other note held by the bank against Toklas, Singerman & Co. It was well said by the New York court, in the case referred to, concerning these notes, that they both represented one indebtedness, in so far as the defendant (the MacDougall & Southwick Company) was concerned, and it was immaterial whether payment was made in form upon either one or the other. Such a payment would discharge his obligation.' And, that being true, we think it logically follows that it was equally immaterial to the defendant in that case whether the money paid by it was applied to the satisfac

tion of the one or the other of the notes. What was said by way of argument in the course of the opinion, respecting the wrongful application or the unlawful diversion of the payment by the bank, was unnecessary to, and really constituted no essential ingredient of, the decision of the case. While it is true that the MacDougall & Southwick Company discharged its obligation to these respondents by the payment made by it to the appellant bank, it may likewise be true that the respondents are legally liable to pay the note upon which this action is founded. It is admitted that the respondents executed two notes, each for $1,970.30, and delivered them to Holland & Co., the payees therein named. It is also admitted that the bank became a bona fide holder of the first note (the one under consideration), by discounting it in the regular course of business, before its maturity; and we think it may be safely asserted, under the evidence in the record and the finding of the court, that the bank was a bona fide holder of the second note also, at least to the extent of the indebtedness secured thereby. See Bank v. Gagnon (Mont.), 48 Pac. Rep. 762. It certainly was such holder unless, at the time it received the note, it had notice that Holland & Co. had no right to pledge it as security for a present loan and for prior indebtedness, and the evidence does not warrant such a conclusion. We find, then, the appellant holding two promissory notes, with a legal right to enforce the payment of both by the makers. It demanded and received payment of one, and now demands payment of the other. This demand is met by the contention that the note has been paid by the payment of another note of like amount, which the makers, in contemplation of law, promised to pay to any bona fide holder thereof. It seems to us that the learned counsel for the respondents have, in this instance, inadvertently overlooked the distinction between payment and a counter demand or counterclaim. Payment consists in something more than the holding of a valid claim by a debtor against his creditor. In legal contemplation, it is the discharge of an obligation by the delivery of money or its equivalent, and is generally made with the assent of both parties to the contract. Brady v. Wasson, 6 Heisk. 131. To constitute a payment, money or some other valuable thing must be delivered by the debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose.' 18 Am. & Eng. Enc. Law, p. 150. Assuming that the authorities above cited correctly announce the general rule of law on the subject of payment, we fail to find anything in the evidence to support the plea of payment. The first note was paid by Mr. Southwick for the MacDougall & Southwick Company, without the slightest knowledge on his part of the existence of the note sued on herein, and the money was received in payment of the second note only. How, then, can it be said that this note has been paid? In fact, it is not claimed that the money was paid or received for the ex

press purpose of discharging this note. The real ground of complaint on the part of the respondents, as stated in the argument and brief of counsel, is that the bank, by surrendering the second note and suing on the first, has deprived the respondents of the right which they would have, in an action on the second note, of making the defense that the debt for which it was pledged was paid by Holland & Co. before payment was made by the MacDougall & Southwick Company."

SATISFACTION-A CANON OF CONSTRUCTION IN COURTS OF EQUITY.

Defined. That doctrine of courts of equity, by which, when the donor's intention so appears, property, given a debtor by his creditor, a creditor by his debtor, a beneficiary by his former benefactor, a child by its parent or one in loco parentis; is construed, if either gift or claim be by testamentary disposition,

in satisfaction for the debt, in lieu of the former benefit or claim by relationship.

Relation to Election.-In its application to gifts by testament to creditors, the rule is very like that in cases of election. The creditor being required in the first instance to elect for or against the will; that is, to take the testamentary provision and renounce the claim, or to enforce the claim and renounce the legacy or devise.

Historical Outline.-The doctrine of satisfaction was a part of Roman law. Justinian provided that the discharge of an obligation might be given a debtor, as a legacy, by his creditor, and also that a legacy given a creditor by his debtor should be taken in satisfaction of the debt if of greater value, or payable earlier than the obligation, but not otherwise, since it was said the creditor would then receive no benefit from the legacy.1

In England, cases of satisfaction are reported about 1675, and the doctrine became a fixed rule of chancery before the opening of the eighteenth century.2

Application. The doctrine is applied to cases of the satisfaction of debts by legacies, the satisfaction of legacies by subsequent legacies, the sati-faction of legacies or portions by advancements and other gifts inter vivos, the satisfaction of settlement portions by legacies.

Classification. This statement is taken by

1 Inst. Lib. II., tit. 20, §§ 13, 14.

2 Blois v. Blois, 2 Vent. 347.

nearly all writers as the basis of a classification for the subject. It may be criticised at two points: First. There is such a sharp distinction in the attitude of the courts toward the first point and the last three as to separate them very remotely in any scheme of division, putting the first by itself and the last three together. Second. The desire that the gift be taken in sati-faction may be clearly or ambiguously expressed by the donor. When the latter is the case, it is obvious that the treatment by the courts will be different.

The scheme of division which I shall adopt will, therefore, first partition the cases into those where the intent is expressed, and those where it is implied, this latter branch again into cases where the claim arises from a legal obligation, and cases where it arises from the

relationship of beneficiary and benefactor, or

from a former bounty.

Intention Governs. -Starting the discussion at this point, the most fundamental principle is that the intention of the donor shall govern the disposal of the bequest; that is, if the donor wished the gift to be in satisfaction of the claim the court will so regard it.3

Express Satisfaction.—If the donor, by apt words, expressly states that the donee may only take the gift in lieu of his former claim, the donee, if he accept the gift, releases his claim, and he may not thereafter enforce it, although that which he receives proves to be

much less valuable than that which he surrendered.4

The gift must be made to the claimant, since a gift to his children or his wife will not satisfy his claim, although the acceptance by a wife of a legacy to her in lieu of all claims of herself and husband will, if accepted, bar the subsequent assertion by the husband of a claim in his wife's right."

If the testator be mistaken as to the person of his creditor, and give a legacy to one only supposedly his creditor, in payment of a claim, actually the property of another, the beneficiary will have the legacy, and the creditor may collect the claim from the estate.7

When the original claim has been either

3 Goldsmid v. Goldsmid, 1 Swanst. 219; Williams v. Crary, 4 Wend. (N. Y.) 443.

4 Caulfield v. Sullivan, 85 N. Y. 153.

5 Parmatir v. Parmatir, 1 Johns. & H. 135.

6 23 L. J. Ch. 910.

7 Harrison v. Haskins, 2 Pat. & H. (Va.) 888.

wholly or partially satisfied, as when a father, after making his child a legatee, advances him sums in redemption of the legacy, it may be revived, as by repeating the gift in a codicil to the original donative instrument.8

Implied or Constructive Satisfaction.. When the donor fails to clearly express an intention, that what is given shall be in satisfaction of the donee's claim. The courts, in endeavoring to read the intention, have adopted certain rules of construction which I believe are applied to all cases of constructive satisfaction, except where statutes have intervened, although when direct proof of the intent is obtainable, and may be admitted under the rules of evidence, the canons of construction are superseded by it.

I. A gift of property not ejusdem generis (of like nature) as the subject-matter of the former claim, will not be construed in satisfaction of it. That is to say, lands shall not satisfy a claim for goods or money, goods a claim of lands or money, money a claim for lands or goods.

II. If either claim or gift be uncertain in fact, in amount, or in time of payment, the court will not construe an intended satisfaction. 10 Hence, if the legacy be in the residuary clause, or be contingent, or if the claim be contingent or unliquidated, in the absence of direct proof, a case for the application of the rule is not made out.

III. If the legacy be less beneficial to the donee than the claim, as when the latter is payable before the legacy, or when the claim arises after the will is made, satisfaction will not be implied."1 Therefore, when the testaTurner's Appeal, 52 Mich. 398.

9 Eastwood v. Vinke, 2 P. W. 614, 617; Lechmere v. Earl of Carlisle, 3 P. W. 211; Chaplin v. Chaplin, 3 P. W. 245, 247, 2 Eq. Cas. Abr. 352, § 12, 3 Eq. Cas. Abr. 571; Bellasis v. Uthwatt, 1 Atk. 426; Slingsly v. 10 Mod. 398; Richardson v. Elphinstone, 2 Ves. 463; Bengough v. Walker, 15 Ves. 507; Dey v. Williams, 2 Dev. & B. (N. Car.) Eq. 66; Benjamin v. Dimmick, 4 Redf. (N. Y. Surro ) 7; Gilliam v. Brown, 43 Miss. 641; Clendenning v. Clymer, 17 Ind. 155; State v. Crossby, 69 Ind. 203.

10 Bellasis v. Uthwatt, 1 Atk. 426; Farnham v. Phil. lips, 2 Atk. 215; Spinks v. Robins, 2 Atk. 491, 493; 3 Eq. Cas. Abr. *571; Talbot v. Shrewsbury, Gilb. Eq. 89; Bengough v. Walker, 15 Ves. 507; Dey v. Williams, 2 Dev. & B. (N. Car.) Eq. 66; Benjamin v. Dimmick, 4 Redf. (N. Y. Surro.) 7; Gilliam v. Brown, 43 Miss. 641; Clendenning v. Clymer, 17 Ind. 155; State v. Crossby, 69 Ind. 203.

11 Haynes v. Mico, 1 Bro. C. C. 129, 3 Eq. Cas. Abr. *571; Adams v. Lavender, 1 McCl. & Y. 40; Dey v. Williams, 2 Dev. & B. (N. Car.) Eq. 66; Gilliam v. Brown, 43 Miss. 641; State v. Crossby, 69 Ind. 203.

tor has agreed by bond that £300 shall be paid his wife one month after his decease, the obligation will not be discharged by an implied intent because of a legacy of £500, payable six months after the demise of the donor.

When the Obligation is Legal.-When the claim arises from a legal obligation, the courts will imply intended satisfaction only upon clear evidence that such was the donor's intention, as these cases only arise where the gift is of a testamentary nature. And since

this imports a bounty, the courts will hesitate to adopt a construction inconsistent with that import, hence they will seize upon slight circumstances to avoid applying the rule of satisfaction.12

Legacies by Debtor to Creditor.-It will be recalled that a legacy is presumably a bounty, 18 and this presumption can only be overthrown in a court of equity.14

13

The general rule is that a legacy by a debtor to his creditor of a sum equalling or exceeding the debt will be taker only in satisfaction of the demand. 15

The gift must equal or exceed the debt,16 since if the debt be much greater than the legacy, the court will not imply that the gift was intended even in pro tanto satisfaction of the claim.17

When the testator and the creditor legatee are related, the presumption that the legacy was a bounty becomes much stronger,18 and, therefore, clearer evidence is required to overthrow the inference; hence, it is said that even though the bequest to the creditor, who is a nephew, be larger than that to other nephews, this fact alone does not show an intent to pay the debt.19

A clause in the will, providing for the payment of all debts, will negative a conclusion that a legacy to a creditor was intended to satisfy his demand. 20 Thus, where a testator

12 Barclay v. Wainwright, 3 Ves. 466; Tolson v. Callom, 4 Ves. 491; Hassell v. Hawkins, 4 Drew. 468; Thyne v. Glengall, 2 H. L. Cas. 131, 152; Gilliam v. Brown, 43 Miss. 641.

13 23 Gratt. 62.

14 8 B. Mon. 397.

15 Elden's Exrs. v. Dent, Admr., 2 Gil. & J. (Md.) 185; Van Ripre v. Van Ripre's Exrs., 2 N. J. Eq. 1. 16 Williams v. Crary, 5 Cow. 368; Ward v. Coffield, 1 Dev. (N. Car.) Eq. 108.

17 Reynolds v. Robinson, 82 N. Y. 103, Eq. Cas. Abr. 355, § 21; Gee v. Liddell, 35 Beav. 621.

18 Caldwell's Exrs. v. Kinkead, 1 B. Mon. (Ky.) 228, 230; Morris v. Morris' Exrs., 3 Houst. (Del.) 568. 19 Dahmann v. Schrenier's Exrs., 4 Mo, App. 587. 20 Reynolds v. Robinson, 82 N. Y. 103; Van Ripre v.

was indebted to E B in the sum of £150, and in his will directed, "after the payment of all my debts I give a legacy of £150 to E B," it was held no case of satisfaction was presented; but it is said that such a direction in the will does not extend to include a legacy given in a codicil, and when a creditor is given as a legacy by a codicil a sum greater than his demand, it will be taken in satisfaction of the debt, although there be a clause in the will directing the payment of debts.22 The express direction of the will that the debts be paid requires these to be paid as well as the legacies. The presence of this clause places this direction above the bequest requiring it to be heeded first; it denotes that the testator wishes first to be just then generous. 28

When the debt is evidenced by a negotiable instrument, it being at all times uncertain who the creditor is, by reason of the negotiability of the ins'rument, a legacy by the maker to the holder will not be construed to satisfy the demand. 24

The legacy must be to the creditor himself, and a bequest to his children25 or other third person will not liquidate the demand.26

When the intent is not evident upon the face of the will, evidence of what the testator said at the time of making the will is inadmissible to show that a legacy was given in satisfaction of a debt, the reason resting in the fact that a legacy implies a bounty, and not a payment, and to permit extrinsic evidence of the declarations of the testator to change the material import of the donative words would be to contradict, by oral evidence, the legal effect of the written instrument, for then the witness and not the testator would make the will. 27

The early English cases admitted parol evidence to show the intention of the testator, 28

Van Ripre's Exrs., 2 N. J. Eq. 1; Strong v. Williams, 12 Mass. (*391) 402; Perry v. Maxwell, 2 Dev. & B. (N. Car.) Eq. 488; Elden's Exrs. v. Dent, Admr., 2 Gil. & J. (Md.) 185.

21 Jeffries v. Michell, 20 Beav. 15.

22 Edmunds v. Low, 8 Jur. (N. S.) 508.

23 2 Dev. & B. (N. Car.) Eq. 488, 499.

24 Carr v. Estabrook, 3 Ves. 561; Smith's Exrs. v. Marshall, 1 Root (Conn.), 159.

25 Ladson v. Ward, 1 Dessau. (S. Car.) 314.

26 Reynolds v. Robinson, 82 N. Y. 103, 108.

Reynolds v. Robinson, 82 N. Y. 103, 107; Fowler

v. Fowler, 3 P. W. 353; Parmatir v. Parmatir, 1 Johns. & H. 135.

28 Cuthbert v. Peacock, 2 Vern. 593.

but the later cases have restricted its scope to showing the testator to be a debtor, to rebut or fortify the presumption of satisfaction, or to show the circumstances of the testator's property.2

29

Legacies by Creditor to Debtor —The general rule is that the mere fact that a legacy is given a debtor will not in itself imply an intention on the part of the testator to cancel the indebtedness; however, parol proof is admis. sible to show the testator's true intention, since it is said it would not be in contradiction of the will, as the legacy would go any way, and the satisfaction is merely ancillary.

If the evidence of the indebtedness which it is proposed is discharged by the legacy, or obligations in security of it are found after the testator's decease in a perfect condition, and bearing no evidence of cancellation, then the courts hold the presumption in harmony with the general rule conclusively established.31

The executor may retain a legacy in part or entire payment of a debt due the estate from the legatee, 32 and where the common law relation of husband and wife prevails, a legacy to a wife may be retained in payment of the debt of her insolvent husband;33 however, this is not permitted under the modern married woman's acts.34

It was held in England, that a debt barred, entirely or partially, by the statute of limitations, may be paid, by the executor withholding the debtor's legacy." This was denied under the Massachusetts statute, on the ground that it was not a debt due the estate, since it had expired by limitation.36 We are rather inclined to criticise this opinion and to hold to the English cases, believing them more nearly consistent with the general principles of construction applied to the statute of limitation.

If the bequest consist of the evidence of the indebtedness, as when a note is bequeathed its maker, it discharges the indebtedness, and 29 Pole v. Somers, 6 Ves. 309, 321; Waters v. Howard, 1 Md. Ch. 112.

30 Clark v. Bogardus, 2 Edw. Ch. (N. Y.) 387; Zeigler v. Eckert, 6 Pa. St. 13.

31 Sorrelle's Exrs. v. Sorrelle, 5 Ala. 245; Snyder v. Warbane, 11 N. J. Eq. 463.

32 Charlick's Estate and cases cited, 11 Abb. (N. Cas. N. Y.) 56.

33 Rankin v. Barnard, 5 Madd. 32.

34 Lewis v. Thompson, 2 Rich. (S. Car.) Eq. 75.

35 Courtenay v. Williams, 3 Hare, 539; Coates v. Coates, 33 Beav. 249.

36 Allen v. Edwards, 136 Mass. 138.