tion of the parties, as shown by their contract, should be regarded, as in our opinion it should be, as the proper standard for the measurement of the appellee's damages, after the maturity of the note in suit, then it is clear that the trial court committed no error in this case in its assessment of the amount of appellee's recovery. Upon the point under consideration we are satisfied that this court fell into an error in Burns v. Anderson, supra, and therefore upon that point that case and the case of Richards v. McPherson, 74 Ind. 158, must be and are overruled.

The rule declared in Kilgore v. Powers, supra, and which we now reassert and declare to be the proper rule for the measurement of plaintiff's damages, in such suits as the one at bar, has been approved by the decisions of the court of last resort in many of the States of the Union. Brannon v. Hursell, 112 Mass. 63; Corcoran v. Doll, 32 Cal. 82; Hopkins v. Crittenden, 10 Tex. 189; Wilson v. Marsh, 2 Beas. 289; Heartt v. Rhodes, 66 Ill. 351; Spencer v. Maxfield, 16 Wis. 541; Pruyn v. Milwaukee, 18 id. 367; Hand v. Armstrong, 18 Iowa, 324; Thompson v. Pickle, 20 id. 490; McLane v. Abrams, 2 Nev. 199; Overton v. Bolton, 9 Heisk. 762; Monnett v. Sturges, 25 Ohio St. 384; Marrietta Iron Works, v. Lattimer, id. 621; Warner v. Juif, 38 Mich. 662; Cecil v. Hicks, 29 Grat. 1; Etnyre v. McDaniel, 28 Ill. 201; Howard v. Armstrong, 28 Iowa, 325.

The motion for a new trial was correctly overruled. The judgment is affirmed with costs.

"Fourteenth. It is further my will, that after my decease all my personal property not herein before mentioned shall be sold and the proceeds thereof divided equally, share and share alike, between all of my aforesaid heirs.

"Fifteenth. It is further my will, that after the decease of my wife, Anna Crook, aforesaid, all the persoual property herein set apart for her use, and all the property that she, the said Anna, may have acquired by and from the use of the farm aforesaid, shall be sold, and the proceeds of said sale divided equally, share and share alike, between all my heirs aforesaid, or their legal representatives."

This will was dated July 6, 1866. At that time the testator had five sons and two daughters, whom he designates as such in certain specific legacies he gives them. He also had three grandchildren, the heirs of a deceased daughter, to whom he also gave specific legacies, though he does not describe them as grandchildren. He also gave his wife a life estate in the homestead farm and .the personal property thereon, *To appear in 38 Ohio State Reports.

but as she died before her husband, the residue disposed of by the 15th item of the will passed into the executor's hands to be distributed as the other undevised personal property, under the 14th item aforesaid.

Oliver Crook, one of the sons to whom a specific legacy was given, died before the testator, and by a codicil his widow and children were to have specific legacies in money as their share and no more. The court finds that the effect of this codicil was to make a special provision for the widow and heirs of Oliver, and to exclude them from the specific legacy to him and also to exclude them from being heirs under items 14th and 15th. A further statement of the facts is unnecessary, as the only questions saved for report Whether the three grandchildren named in the will, and who are plaintiffs in error here, receive any part of said personal estate devised by items 14 and 15 of said will, and if so in what proportion? The commou pleas held that they did, and that they took in equal shares with the children of the testator. The District Court also held that they did, but that they took per stirpes the share of their mother.

are:

To reverse this, is the object of this proceeding in

error.

D. Thew Wright and W. C. Howard, for plaintiffs in

error.

Warren Manger, for defendants in error.

JOHNSON, J. By the 14th and 15th items of this will the testator directs that the proceeds of this personal estate be divided "equally, share and share alike, between all my aforesaid heirs." At the time these words were used and when the will took effect, he had children, and three grandchildren the heirs of a deceased daughter. In the preceding clauses of the will these children and grandchildren were each named, and he gave to each a specific legacy.

None of these were heirs in the strict legal sense, as he was then living, but each was an heir apparent and each would have been an heir, had he died intestate. Hence the phrase, "all my aforesaid heirs," was used to expressly include all such as were in fact heirs apparent. These residuary clauses of the will did not direct a division among "all his children," or "all his sons and daughters" but "between all his aforesaid heirs." There is nothing found elsewhere in the provisions of this will to warrant us in limiting this comprehensive expression to part only of his heirs. To hold that this phrase includes some of the heirs and excludes others, would do violence to the well settled rule of construction, that the intention of the testator must be discovered from the words used in connection with the other provisions of the will. The explicit direction that this division should be made "equally, share and share alike," entitles these grandchildren to take per capita, and not per stirpes. Had this direction as to equality been omitted, a different result might have been reached in accordance with the judgment of the District Court, and in harmony with numerous well considered cases, but the testator has left nothing for construction on this point. Each is to have an equal share. Dagget v. Slack, 8 Met. 450; Downing v. Smith, 3 Beav. 541; Lord v. Moore, 20 Conn. 122; Tuttle v. Pints, 68 N. C. 543; Vannorsdall v. Van Deventer, 51 Barb. 138; Harris v. Philpot, 5 Ired. Eq. 324; Nutter v. Vickery, 64 Me. 490; Lemacks v. Glover, 1 Rich. Eq. 141; Witmer v. Ebersole, 5 Penn. St. 458; Campbell v. Wiggins, Rice, Eq. (S. C.) 10; Ort's Appeal, 25 Penn St. 267.

Judgment accordingly.

ACTION BY GUARDIAN FOR LABOR OF

WARD.

NEW HAMPSHIRE SUPREME COURT.

NEWTON V. NUTT.*

A guardian cannot maintain a suit in his own name on an account for the labor of his ward.

A

SSUMPSIT, on an account for the labor of the plaintiff's ward performed for the defendant's intestate. Demurrer, on the ground that the cause of action alleged was a debt due to the ward and not to the plaintiff.

Faulkners and Batchelder, for plaintiff.
Wait, for defendant.

ALLEN, J. It is the duty of the guardian to take care of the person of his ward, improve his estate, apply the income to his support, collect his dues, pay his debts, and protect his rights. Gen St., ch. 165, § 3. It is the right of the ward to sue and be sued, prosecute and defend, by his guardian. Gen. St., ch. 165, § 4. The relation between the guardian and ward is that of a trustee and cestui que trust, but the trust is not one which gives to the guardian the legal title to the ward's estate, as in case of administrators, executors, and trustees appointed by deed, by will, or by the court. The guardian's duties entitle him to the possession of the ward's property, but his possession is the possession of the ward in whom the legal title remains. The power of the guardian is a naked trust not coupled with an interest. Tenney v. Evans, 11 N. H. 346; S. C., 14 id. 343, 350, 351; Granby v. Amherst, 7 Mass, 1, 5,; Manson v. Felton, 13 Pick. 206, 211.

When the right of action depends upon possession merely, and the possession of the property is actually with the guardian, the suit may be in the guardian's name. Pond v. Curtiss, 7 Wend. 45; Truss v. Old, 6 Rand. 556; Bacon v. Taylor, Kirby, 368; Fuqua v. Hunt, 1 Ala. 197; Sutherland v. Goff, 5 Port. 508; Field v. Lucas, 21 Ga. 447. So too if the action is on a contract to be performed. with the guardian personally, or for the payment of money to him by name. Boardman v. Roger, 17 Vt. 589; Gage v. Kendall, 15 Wend. 640; Mauram v. Lamb, 7 Cow. 174; Pearce v. Austin, 4 Whart. 489; Joliffe v. Higgins, 6 Munf. 3; Baker v. Ormsby, 5 Lil. 325.

But debts and demands generally, in which the ward has a direct beneficial interest, should be sued in the name of the ward by his guardian. Hutchins v. Dresser, 26 Me. 76; Winslow v. Winslow, 7 Mass. 96; Blanchard v. Ilsley, 120 id. 487; Bradley v. Amidon, 10 Paige Ch. 235; Stratton's case, 1 Johns. 509; Totten's Appeal, 46 Penn. St. 301; Longstreet v. Tilton, 1 Coxe, 38; Carskadden v. M'Ghee, 7 Watts. & Serg. 140; Stewart v. Crabbin, 6 Munf. 280; Barnet v. Commonwealth, 4 J. J. Marsh. 389; Hoare v. Harris, 11 Ill. 24; Fox v. Minor, 32 Cal. 111; Hanly v. Levin, 5 Ohio, 228; Hines v. Mullins, 25 Ga. 696; 3 Redf. on Wills, title Guardian, § 55, 2; Schouler Dom. Rel. 462, 463.

The ward did not perform the labor sued for by the plaintiff as the plaintiff's servant, and the plaintiff had no interest in the claim which entitled him to sue upon it in his own name.

times, nothing being said about the place of payment or delivery of the deed. B. replied by letter that he would take the land upon the terms mentioned in A.'s letter, adding: "You may make out the deed, leaving the name of the grantee in blank and forward the same to X., in Wisconsin, or to your agent, if you have one here, to be delivered to me on payment," etc. Three days later B. telegraphed to A.: "Have written you; will take land at your figures. Answer." After the telegram was sent and before either the letter or telegram from B. reached him, A. wrote again, withdrawing his offer. Held, that the letter of B. was an acceptance of the offer upon condition that the deed be forwarded, executed in blank as to the grantee, and that payment be received in Wisconsin; that the telegram refers to the letter as containing the acceptance, and is not in itself an unconditional acceptance, and that there having been no unqualified acceptance of the offer, it might be withdrawn. See Northwestern Iron Co. v. Mead, 21 Wis. 474; Baker v. Holt. Opinion by Taylor, J.

A gift or sale by a debtor of property exempt by law from seizure on attachment or execution, either to a stranger or to his wife, cannot be a fraud upon his creditors unless such gift or sale was made with intent to perpetrate a fraud upon the exemption law. See Dreutzer v. Bell, 11 Wis. 114; Pike v. Miles, 28 id. 164; Murphy v. Crouch, 24 id. 365; Main v. Bell, 27 id. 517; Hibben v. Sayer, 33 id. 319; Carhart v. Harshaw, 45 id. 340; Anthony v. Wade, 1 Bush, 110; Knevan v. Specker, 11 id. 3; Lisby v. Parry, 6 id. 515; Smith v. Rumsey, 33 Mich. 183; Raynor v. Witcher, 6 Allen, 294; Mawson v. Merritt, 11 id. 582; Woodworth v. Paige, 15 Ohio St. 70; Lex v. Shropshire, 25 Tex. 113. Allen v. Perry. Opinion by Taylor, J.

NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PASSENGER RIDING IN A DANGEROUS POSITION BY CARRIER'S DIRECTION.-Plaintiff who was employed by the defendant railroad company as a detective was directed to go to a point on defendants' railroad, and a hand car was provided to carry him. He, under the direction of the person who had charge of the car, sat down in a manner that exposed him to danger, but he did not know that it was dangerous. Held, that it was for the jury to say whether plaintiff was negligent. In Giles v. Railroad Co., 49 N. Y. 47, plaintiff was injured by getting off a car when it was in motion. It was proved in the case that when the train arrived at the place where the plaintiff desired to get off, the train ran very slowly, but did not come to a full stop, and that the brakeman told the plaintiff to get off, and in attempting to do she was injured. The court say: "That there was more hazard in leaving the car while in motion, although moving ever so slowly, than when it is at rest, is self-evident; but whether it is imprudent and careless to make the attempt depends upon circumstances;" and held that under all the circumstances it was proper to submit the question of contributory negligence to the jury. The case came before the court again in 59 N. Y. 351, and it was then held by the court that if the brakeman directed her to get off while the cars were in motion she had the right to assume that she could get off with safety, although the train was in motion. GROVER, J., who delivered the opinion in 59 N. Y. says: "The employees upon a train, including brakemen, are in the line of their duty in assisting passengers in getting on and off the train, and in directing them in procuring seats. Passengers rightly assume that these persons are familiar with all the movements of the train, and know whether they can under the particular circumstances, get on or off, or move upon the train with safety. When the con

ductor or a brakeman directs a passenger to get off the train, although in motion, such passenger will naturally assume that he knows that it is entirely safe or he would not give the direction." In McIntyre v. Railroad Co., 37 N. Y. 287, it was held that "it is not negligence in law for a passenger to follow the direction given by a servant of a railroad company, and to pass from one car to another while the same are in motion. Whether in such case it is negligence is a question for the jury." In Clark v. Street R. Co., 36 N. Y. 135, the court held that if a passenger is riding upon a platform of a car in a place of danger, his negligence is prima facie established; but that he may rebut that presumption by showing that he was riding there at the invitation of those having the car in charge. GROVER, J., says: "The proof of the plaintiff in the present case tends to show that the inside of the car was full and that the platform was full, so that no more persons could stand thereon; that in this situation the car was stopped for the plaintiff to get on; that upon his getting on there was no place for him except standing on the step; that while riding in this situation the conductor called upon him for and received from him his fare. These facts, if true, authorized the jury to find that the plaintiff had been invited by those having charge of the car to ride in that place, and that it implied an assurance had been by them given that that was a suitable, safe place for him to ride. Under such a state of facts I do not think negligence can fairly be imputed to the plaintiff for riding in that position." It was held that the question of the plaintiff's negligence was properly submitted to the jury. Pool v. Chicago, Milwaukee & St.Paul Railway Co. Opinion by Taylor, J.

NEW HAMPSHIRE SUPREME COURT

ABSTRACT.*

ATTACHMENT - RETURN TO CERTAINTY IN DESCRIPTION OF REAL ESTATE-GRANT OF "HOUSE."- A description of real estate is sufficient in an officer's return to an attachment if it would pass the title in a deed. Howard v. Daniels, 2 N. H. 137; Moore v. Kidder, 55 id. 488; Forbush v. Lombard, 13 Metc. 109. A

grant or devise of a dwelling-house will convey the buildings belonging to it, its curtilage, garden, orchard, and the land on which the house is built, with

reasonable limitations. Gen. St. Glossary, Messuage; Gibson v. Brockway, 8 N. H. 465; Bean v. Brackett, 34 id. 102; Davis v. Handy, 37 id. 65, 71; Johnson v. Rayner, 6 Gray, 107, 110; 2 Bouv. L. Dic., Messuage. Accordingly a return describing the property attached as "the dwelling-house lately erected by said defendaut on School street in Lebanon in said county," held,

sufficient to cover the title to the land on which the dwelling house stood. Marston v. Stickney. Opinion by Bingham, J.

EASEMENT-USE STRICTLY CONFINED TO GRANT.-In a deed of lot A, a reservation of the right to draw water from a well on that lot for the family occupying lot B, gives the occupant of lot B the right to draw water for the ordinary purposes of a family, but not for the additional use of a bakery. The use of an easement is to be confined strictly to the purposes for which it was granted. French v. Marstin, 24 N. H. 440. Noyes v. Hemphill. Opinion by Smith, J.

NEGLIGENCE-NOT TO BE PRESUMED- QUESTION FOR JURY - TRIAL-EXCEPTION.- (1) Negligence is a matter of fact to be proved by evidence; it is not to be inferred by force of a legal presumption. Bundy v. Hyde, 50 N. H. 116, 122; State v. Hodge, id. 510;

*To appear in 58 New Hampshire Reports.

Gray v. Jackson, 51 id. 9; Bickford v. Dane, 58 id. 185. A mere scintilla of evidence is not sufficient to sustain the burden of proof. Before the evidence is left to the jury, there may be in every case, a preliminary question for the presiding judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly find a verdict for the party producing it, upon whom the burden of proof is imposed. Cotton v. Wood, 8 C. B. (N. S.) 568, 571; Railroad Co. v. Goodman, 62 Penn. 329; Bachelder v. Heagan, 18 Me. 32; Tourtellot v. Rosebrook, 11 Met. 460; Losee v. Buchanan, 51 N. Y. 476: MuCully v. Clarke, 40 Penn. 399; Chicago v. Major, 18 Ill. 349; Hammack v. White, 11 C. B. (N. S.) 588; Holmes v. Mather, L. R., 10 Ex. 261; Ellis v. Railway Co.,L. R., 9 C. P. 551; Burton v. Railroad Co., 4 Harr. (Del.) 252. Judges are not required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Ryder v. Wombwell, L. R., 4 Ex. 39. Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Clifford, J., in Commissioners, etc., v. Clark, 94 U. S. 278, 284; Giblin v. McMullen, L. R., 2 P. C. App. 317, 335; Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Fant, 22 id. 120; Parks v. Ross, 11 How. 373; Merchants' Bank v. State Bank, 10 Wall. 637; Hickman v. Jones, 9 id. 201. (2) Where a person seeks to charge a railway company with negligence in not seasonably removing a car which incumbered a highway crossing, and in consequence of which an accident occurred to the plaintiff, an instruction by the court, that if the jury should find that the servants of the company honestly believed they could not move the car without help, and that they exercised

ordinary care and prudence in that judgment, they are not guilty, is sufficiently favorable to the defendants, and furnishes no ground of exception. (3) An exception in general terms to instructions given in a charge to the jury, without any specification of error or request for particular instructions, is not sufficient, and will not avail to set aside a verdict because of the omission of the judge to give instructions not thus specifically requested. Moor v. Ross, 11 N. H. 547; Deming v. Foster, 42 id. 165; Cooper v. Grand Trunk Railway, 49 id. 209; Craig v. Gerrish, 58 id.

513; Leach v. Woods, 14 Pick. 461; Ford v. Monroe, 20 Wend. 210. Paine v. Grand Trunk Railway Co. Opinion by Foster, J.

SURETYSHIP OFFICIAL BOND.-The liability of a town treasurer, and his sureties on his official bond for a sum of money in his hands due the town, is not discharged by his own note for that sum, accepted by his official successor as cash in full payment and discharge of the debt with the assent of a selectman. Horn v. Whittier, 6 N. H. 88. Town of Henniker v. Wyman. Opinion by Doe, C. J.

Roman Catholic Church is bound by its own organic law to provide a decent support for its priests, does not raise a contract obligation which is enforceable in a court of law. Accordingly held, that an action by a priest against a bishop of such church, for the value of the support of such priest during the time the bishop refused to provide the priest with a charge or with support, was not maintainable. When a priest dedicates his life to the church, and takes upon himself the vows of obedience to its laws, he is presumed to be actuated by a higher principle than the hope of gain. Where he has an actual contract with his congregation or his bishop for a salary, it may be enforced as any other contract; but where he relies upon the duty of his church to support him, he must invoke the aid of the church if he seeks redress. The civil courts wisely decline to interfere in ecclesiastical controversies, except where rights of property are concerned. In the latest case before this court upon this subject it was said: "The profession of a priest or minister of any denomination is held subject to its laws; the priest acquired it by contract, and is not exempt from the proper disciplined authority of his church; he has no property in his profession that shields him from the consequences of his broken vows and compacts." Stack v. O'Hara, 38 Leg. Int. 420. To the same effect is Cheeney v. Protestant Episcopal Bish. of Illinois, 58 Ill. 509. The recent case of Rose v. Bertin, 46 Mich. 457, closely resembles the one in hand. It was there held that the priest could not recover his salary from the bishop; that the latter was merely his superior officer in the church, clothed with the appointing power, and that the exercise of such power in assigning the priest a congregation does not make the bishop liable. It was said by Graves, J.: "The main facts in the case are undisputed, and the only question is concerning their effect, and in my opinion, they show distinctly that the relation between Bishop Wrack and the priest was never that of hirer and hired in any sense, implying an obligation on the bishop to pay the priests. The bishop was the priest's superior, and according to the established order of things in the economy of church government, regulating the degrees of subordination and the methods of administration, it was the province of the bishop to designate the place for the priest to exercise his functions, and to prescribe under certain limitations the rules for his guidance and control." Ting v. McSheehan. Opinion by Paxson, J.

[Decided Nov. 20, 1882.]

FRAUDULENT CONVEYANCE - WHAT SUFFICIENT CHANGE OF POSSESSION TO VALIDATE SALE. - An aged and infirm man resided on a farm under a parol lease, and his son resided with him; by reason of infirmities and poverty the father was unable to carry on the farm; he therefore sold and transferred certain cattle and other personal property on the farm to the son, in consideration of the latter agreeing to support his father and mother, and pay the rent of the farm. The son took charge of the farm, put on additional stock, using the whole, supported his father and mother thereafter. The parties contained to live together on the farm as before, the property remaining on the farm, but the father gave no attention thereto. Held, a sufficient change of possession to render the transfer, if in good faith, valid as to creditors. The general rule is that a sale of personal property is not good against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale. In determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties and the intended use of the property. No such change of pos

session as will defeat the fair and honest object of the parties is required. Thus where two brothers, engaged in the business of manufacturing coaches, became embarrassed and sold their stock in trade to a third brother, who had been about the establishment before the sale, and who went into possession, continued the business at the same place, changed the sign to his own name, procured another book-keeper, and opened new books, but both vendors remained in his employ, each of them superintending a particular department of the work at stipulated wages, it was held there was not such a want of corresponding change of possession, as matter of law, to make the sale void against creditors of the vendor. Dunlap v. Bournonville, 2 Cas. 72. The same principle is recognized in Born v. Shaw, 5 id. 288; McKibbin v. Martin, 14 P. F. Smith, 352; Evans v. Scott, 8 Norris, 136; Pearson v. Carter, 13 id. 156. A change of location of the property is not essentially necessary. If the purchase was in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title; and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot as matter of law be held insufficient. Crawford v. Davis. Opinion by Mercur, J. [Decided Oct. 2, 1882.]

STATUTE OF FRAUDS AGREEMENT AS TO PURCHASE OF LANDS ON SPECULATION.- Plaintiffs had the refusal of certain real estate and agreed with defendants for the purchase of the same from the owner, defendants argeeing to share the profits to be made on a resale with plaintiffs. In pursuance of such agreement defendant purchased the real estate and resold it at a profit. A portion of the price received on the resale was in notes of vendee. The defendant refused to divide the profits with plaintiffs, and the latter before the notes became due brought action against defendant on the contracts. Held, that the contract was not within the statute of frauds, and that the action was not prematurely brought. An interest on contingent profits arising from a sale to be thereafter made did not give an interest in the land itself. Smith v. Watson, 2 Barn. & Cres. 401. These facts relieve the case from the operation of the Statute of Frauds. Hess v. Fox, 10 Wend. 436; Bruce v. Hastings, 41 Ver. 380; Trowbridge v. Whetherbee, 11 Allen, 361. For many purposes negotiable notes given in satisfaction of a debt may be considered as money. They will support a count for money paid, Morrison v. Becky, 7 S. L. R. 246, and for money expended to the defendants' use. Craig v. Craig, 5 Rawle, 91; so when goods are sold on credit, the vendee to give his note, and after the goods are delivered, he refuses so to do, an action may be maintained for a breach of the contract before the expiration of the credit, and the price of the goods is the measure of damages. Girard v. Taggart, 5 S. & R. 19; Rhinehart v. Olivine, 5 W. & S. 157. A denial of the contract in toto is a violation of every part thereof. Benjamin v. Zell. Opinion by Mercur, J. [Decided Oct. 2, 1882.]