We

by women and minors, both of which classes would be denied the protection the statute was designed to afford, if we put the construction upon the word "citizen" the relator's counsel contended for. think it cannot be reasonably urged that when one citizen is entitled to vote owns but one lot in a block and all the rest of the block is owned by women, either married or single, or minors, to the number of twenty, and all of whom are assessed thereon, that a petition signed by the one citizen would be a majority, in the sense of the statute, of the assessed tax-paying citizens, and that the County Court would be bound to act upon that, and close their eyes on the assessment list disclosing the fact that there were twenty other assessed tax-paying citizens owning property in the block. And yet such would be the result under the construction contended for by relator.

The case of State ex rel. Fitzpatrick v. Mayers, 80 Mo. 601, returns a negative answer to the third and last question stated in the foregoing part of this opinion. The peremptory writ will be and is hereby denied. All concur.

promise by a debtor to make a preferential assignment in favor of a particular creditor in case it became necessary to protect him is not in law a fraud upon other creditors, nor is it conclusive evidence of fraud so far as to avoid an assignment made in pursuance thereof. A debtor may obtain credit by a promise to pay in the future, either in cash or in property, or by promising to give his check or an indorsed note, or a confession of judgment. Neither such a promise nor its performance is a legal fraud upon any one; and why may he not promise to give security upon the property purchased, or other property? Such a promise, honest, in fact, has never been held to be a fraud, or to work a fraud upon creditors. Security honestly given in pursuance of such a promise relates back to the date of the promise, and except as to intervening rights, is just as good and effectual as if given at the date of the promise; and it has generally been so held even in bankruptcy proceedings. Bump Bankruptcy (10th ed.) 821; Forbs v. Hard, 102 Mass. 427; Bank of Leavenworth v. Hunt, 11 Wall. 391; Burdick v. Jackson, 7 Hun, 488; Ex parte Ames, 1 Low. 561; Ex parte Fisher, L. R., 7 Ch. App. 636; Ex parte Kilmer, L. R., 13 Ch. App. 245; Mercer v. Peterson, L. R., 2 Exch. 304; S. C., L. R., 3 Exch. 103. But here the agreement was to make the preferential assignment in case it became necessary to protect the creditor; and it is further claimed that such a conditional agreement is a fraud upon other creditors. A failing debtor may make an assignment preferreing one or more creditors, because he is under a legal, equitable or moral obligation to do so, or he may do it from mere caprice or fancy, and the law will uphold such an assignment honestly made. If he may make such an assignment without any antecedent promise, why may he not make it after and in pursuance of such a promise? How can an act otherwise legal be invalidated because made in pursuance of a valid or invalid agreement honestly made? In Smith v. Craft, 11 Biss. 340, Judge Gresham held that such a conditional agreement for a future performance was a fraud upon creditors. But in the same case, in 11 Fed. Rep'r, 705, upon a rehearing, Judge Woods held that the same agreement was not fraudulent, and in a very satisfactory opinion showed that such an agreement as we have here for a future preference in case of insolvency, is not a legal fraud upon creditors. See also Walker v. Adair, 1

Bond, 158; Anderson v. Loeks, 59 Miss. 111; Spaulding v. Strong, 37 N. Y. 135; S. C., 38 id. 1; Haydock v. Cooper, 53 id. 68. This agreement did not create any lien, legal or equitable, upon the property of the defendants. It was not an agreement for a future lien upon the specific property, which is sometimes held to create an equitable lien which may be enforced in equity. It was not an agreement for any lien at all. It was simply an agreement in case of an assignment by the defendants, to prefer Whiting. The agreement did not bind defendant's property, nor incumber it, but left it subject to all the remedies of their creditors, and it neither hindered nor delayed those creditors. They could have made the same assignment without a previous agreement, and it is impossible to perceive how the agreement worked any legal harm to any one. We think there were sufficient facts set forth in the affidavits to give the court jurisdiction to determine whether or not the defendants, in threatening to make and in making the assignment, were actuated by a fraudulent intent. A few days before the assignment was made the defendants reported that they were entirely solvent, and could pay all their debts in full, and they made a statement of their affairs, showing a large surplus of assets over liabilities. Soon after these representations they claimed that they could not pay their debts in full, and that they were insolvent, and proposed to their creditors a compromise of fifty cents on the dollar, payable in nine, twelve and fifteen months, without security. The evidence tended to show that they had been engaged in a prosperous business yielding them large profits, and they gave no satisfactory or intelligible explanation of their sudden alleged insolvency. They threatened that unless their offer of compromise was accepted they would make an assignment preferring Whiting, and that then the rest of their creditors would get little or nothing. The efforts of the defendants with the co-operation of their assignee after the assignment, apparently to coerce a compromise at twenty-five cents on the dollar, their offer "to fix it up" with a creditor afterward if he would assent to the compromise, their selection of a foreign assignee, the relations between him and them and the secret promise of a future preference, are also pertinent facts. The court at General Term looking at no one fact, but at all the facts before and after the assignment, could, we think, find that the assignment was threatened and made, not solely for the honest purpose of devoting their assets to the payment of their just debts, but while not actually insolvent, to coerce a favorable compromise from their creditors and thus secure a benefit to themselves. The proof of the fraudulent intent alleged may not have been very cogent, but it was sufficient to give the court below jurisdiction to award the attachment, and hence we are bound by its decision and have no jurisdiction to interfere therewith. Feb. 1, 1887. National Park Bank of New York v. Whitmore. Opinion by Earl, J.

MUNICIPAL CORPORATION-OBSTRUCTION ON WALKS -NOTICE-CHILD INJURED-IMPUTABLE NEGLIGENCE.

-The rule requiring care on the part of municipalities in protecting and keeping safe the public streets, and which subjects such corporations to the consequences of a disregard of their statutory duties in this respect, is wholesome and founded in just principles. Where the question of negligence in not removing an obstruotion unlawfully placed in a public street by third persons depends upon implied notice, what is a reasonable time from which notice is to be inferred must be determined upon the circumstances, giving weight to the consideration that municipal authorities cannot be expected to act with the promptness and celerity of individuals in conducting their private affairs. Although a city is not liable for the placing by a third per

son of a dangerous obstruction upon one of its sidewalks, yet if it fail to cause its removal after due notice of its existence, it is responsible for any damage occasioned thereby. Tuesday, A. placed a bar counter upon the sidewalk leaning against the wall of his building and it remained there until the following Saturday when plaintiff's intestate, a child between five and six years of age, while playing about the counter, was fatally injured by the falling of the counter upon him. Held, that lapse of time, together with the fact that the street was in a busy and frequented part of the city, made it a question for the jury whether the city authorities ought to have known of the obstruction and have caused its removal before the accident, and that a nonsuit was error. The remaining question relates to the alleged negligence of the plaintiff's intestate. The intestate was a child between five and six years of age. We understand the rule to be that in an action for an injury founded on negligence, contributory personal negligence cannot be attributed to a child of very tender years, who from his age cannot be supposed capable of exercising judgment or discretion, although the injury would not have happened without his concurring act, and although that act, if committed by an adult, would be a negligent one. In such a case a defendant whose negligence was a constituent element of the transaction, and without which the injury would not have happened, is legally responsible, notwithstanding the negligence of the infant, unless it appears that the parents or guardians were negligent in permitting the child to be brought into the situation which subjected it to the hazard and resulting injury. There is an obligation in general upon all persons to conduct themselves with prudence and care, and not recklessly, or even incautiously expose themselves to danger, even from negligent acts of others. But the law exacts no impossibility. It does not require an infaut before reaching the age of discretion to exercise discretion. But it imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such care, and the infant is thereby brought into danger, and suffers injury from the negligent act of another, the negligence is deemed the negligence of the infant. This rule of imputable negligence operates harshly upon the innocent and unconscious child, but any other rule would put upon the defendant a loss for which he was only in part responsible. In Hartfield v. Roper, 21 Wend. 615; S. C., 34 Am. Dec. 273, it was held as matter of fact that there was no negligence on the part of the defendant, and that there was negligence on the part of the parents in permitting a child of two and a half years of age to be in the roadway. The new trial in that case was properly grauted on either ground. There are some remarks in the opinion which, disconnected with the context, may be construed as sustaining the proposition, that although there was no negligence on the part of the parents, the plaintiff could not maintain the action if the conduct of the child contributed to the injury. But we understand the present doctrine on this question to be that it is not sufficient to defeat a recovery for an injury to a child, not sui juris, caused by the negligence of a defendant, that the act of the child was one which, in an adult, would be deemed a negligent one contributing to the injury. There must also be concurring negligence on the part of the parents or guardians. Ihl v. The Forty, second Street R. R. Co., 47 N. Y. 317; S. C., 7 Am. Rep. 450; McGarry v. Loomis, 63 N. Y. 104; S. C., 20 Am. Rep. 510. If no such negligence is found the doctrine of contributory negligence has no application. In this case the child, in playing about the counter, was indulging a natural instinct in amusing himself, and was not guilty of legal negligence, although he

contributed to the mischief by his own act." Lord Denman, in Lynch v. Murdin, 1 Adol. & Ell. (N. 8.) 30. The law does not define when a child becomes sui juris. If there was any question whether the plaintiff's intestate had sufficient discretion to understand the danger of the situation, it should have been left to the jury, with proper instructions as to the degree of care exacted of a child of tender years under the circumstances. Maugam v. Brooklyn R. R. Co., 38 N. Y. 455; MeGovern v. N. Y. C. & H. R. R. R. Co., 67 id. 418; Byrne v. Same, 83 id. 620; Dowling v. Same, 90 id. 670; R. R. Co. v. Stone, 17 Wall. 657. It is insisted however that the father of the intestate was chargeable with negligence in permitting the child to be on the sidewalk unattended. It has been held that it is not per se wrongful or negligent to permit children to play in the street. McGarry v. Loomis, supra; McGuire v. Spencer, 91 N. Y. 303; S. C., 43 Am. Rep. 668. It may, or may not, be negligence, depending upon circumstances. It was, we think, for the jury to determine whether the father of the intestate was guilty of negligence. The plaintiff is entitled to the most favorable inference deducible from the evidence, and in reviewing the nonsuit, all contested questions of fact are to be deemed established in his favor. The jury would have been entitled to have found from the evidence that the father left the child at the door of the store to go into the store to make change, cautioning the boy not to go far away, and, on his return, from two to five minutes later, the accident had happened. It would be, we think, too strict a rule to impute negligence to the father, as a matter of law, under such circumstances. See Cosgrove v. Ogden, 49 N. Y. 255; S. C., 10 Am. Rep. 361. Feb. 1, 1887. Kunz v. City of Troy. Opinion by Andrews, J.

owners.

RAILROAD -ELEVATED RIGHTS OF ABUTTING OWNERS DAMAGES. — An elevated railroad in the streets of a city, operated and constructed as at present, is a perversion of the use of the street from the purposes originally designed for it, and is a use which neither the city authorities nor the Legislature can legalize or sanction without providing compensation for the injury inflicted upon the property of abutting Abutters upon a public street, claiming title to their premises by grant from the municipal authorities, acquire an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of their property situated thereon. The ownership of such easement is an interest in real estate, constituting property within the meaning of that term, as used in the Constitution of the State, and requires compensation to be made therefor before it can lawfully be taken from its owner for public use. The erection of an elevated railroad, the use of which is intended to be permanent, in a public street, and upon which cars are propelled by steam engines, generating gas, steam and smoke, and distributing in the air cinders, dust, ashes and other noxious and deleterious substances, and interrupting the free passage of light and air to and from adjoining premises, constitute a taking of the easement, and its appropriation by the railroad corporation, rendering it liable to the abutters for the damages thereby occasioned to their property. Feb. 1, 1887. Lahr v. Metropolitan Elevated R. Co. Opinion by Ruger, C. J.

SURROGATE-JURISDICTION TO CALL GUARDIANS,

ETC., TO ACCOUNT-JURISDICTION LIMITED-IMPEACHING SETTLEMENT FOR FRAUD. - To constitute a testamentary trustee it is necessary that some express trust be created by the will. Merely calling an executor or guardian a trustee does not make him such. The provisions of the statute (Code Civ. Pro., §§ 2842-2850)

in regard to accountings by testamentary trustees are not applicable to the case of testamentary guardians. A Surrogate's Court is one of inferior, limited jurisdiction, and those claiming under the decree of a surrogate must show affirmatively his authority to make it and the facts which give him jurisdiction. In respect to accountings by testamentary trustees or guardians, a surrogate takes no incidental powers or constructive authority by implication which is not expressly given by statute. Carman v. Merritt, 31 Barb. 341; Wood v. Brown, 34 N. Y. 342; Craig v. Craig, 3 Barb. Ch. 76; Re Woodworth, 2 id. 351; Re Andrews, 1 Johns. Ch. 99; Bulkley v. Van Wyck, 5 Paige, 534, 536. There is a distinction between testamentary trustees, testamentary guardians and guardians appointed by a surrogate, and the Code provides a distinct system as to accounting by each. An attempted judicial settlement by a surrogate of the accounts of a guardian appointed by him, or a testamentary guardian, made either before or since the adoption of the Code of Civil Procedure, but while the guardianship continued, is void for want of jurisdiction. H., appointed guardian by will of S., acted as such from October 31, 1877, to November 5, 1884. Afterward H. passed two several accounts, as such testamentary guardian and upon such accounting, decrees were made, one on December 30, 1878, and another on January 10, 1881, which purported to finally settle and allow said accounts. Upon both accountings full commissions were awarded as upon receiving and paying out not only the income received during the period, but also the capital of the estate. S. became of age July 25, 1884, and on November 5, 1884, H. filed a final account, for which he prayed a settlement, and asked to be discharged from all liability as such. On the hearing S. appeared by counsel, and the accounts rendered by H. were objected to on the ground that, by reason of excessive commissions, the balance was less than was properly chargeable to H. In answer to these obligations H. relied upon the decrees upon the former accountings as conclusive on the question of his right as to the commissions as charged. The objections were amended, and S. claimed that said former decrees were without the jurisdiction of the surrogate to grant, so far as the matter of commissions were concerned, and were obtained by misrepresentation. Held, that the decrees of December, 1878, and January, 1881, had no force or effect as adjudication, and all objections to commissions and other charges were open to S. Commissions properly allowable should be determined upon the final accounting according to the law existing at that time. On the examination, questions were put to H., which, although not calling for facts which would have positively proved fraud in rendering the former account, yet tended in that direction. Held, that the questions were proper. Feb. 1, 1887. Matter of Settlement of Accounts of Hawley. Opinion by Rapallo, J.

UNITED STATES SUPREME COURT ABSTRACT.

MALICIOUS PROSECUTION-PROBABLE CAUSE-JUDGMENT STATE AND FEDERAL COURTS. - The Slaughter-house Company, having by its charter a monopoly of the slaughtering business in and around New Orleans, brought suit in the United States Circuit Court for Louisiana against the Butchers' Company, to restrain it from carring on the same business, which the latter claimed a right to do under the provisions of the Louisiana Constitution, vesting the regulation of the business in municipalities, and abolishing the monopoly thereof. The Circuit Court gave judgment

in favor of the Slaughter-house Company, but upon appeal to the United States Supreme Court, this was reversed. Held, that the judgment of the Circuit Court was sufficient evidence of probable cause to prevent the maintenance of an action for malicious prosecution, brought by the Butchers' Company against the Slaughter-house Company in the State courts; and the fact that before the beginning of the suit in the United States Circuit Court, the State courts had decided against the Slaughter-house Company in a suit brought by it against the city of New Orleans, to restrain the city from proceeding under the new constitutional provisions, did not alter the case. How much weight, as proof of probable cause, shall be attributed to the judgment of the court in the original action, when subsequently reversed for error, may admit of some question. It does not appear to have been judicially determined in Louisiana. In the case of Griffis v. Sellars, 4 Dev. & B. 177, Ruffin, C. J., said "that probable cause is judicially ascertained by the verdict of the jury, and judgment of the court thereon, although upon an appeal a contrary verdict and judgment be given in a higher court." In Whitney v. Peckham, 15 Mass. 243, such a judgment was held to be conclusive in favor of the existence of probable cause. To the same effect is Herman v. Brookerhoff, 8 Watts, 240, in an opinion of Chief Justice Gibson. The decision in the case of Whitney v. Peckham, ubi supra, however was questioned by the Supreme Court of New York in the case of Burt v. Place, 4 Wend. 591, 598, where Marcy, J., delivering the opinion of the court, said that the Massachusetts decision rested entirely upon Reynolds v. Kennedy, 1 Wils. 232, which had been qualified by the decision of Eyre, baron of the exchequer, in Sutton v. Johnstone, 1 Term R. 505, and by what was said by Lord Mansfield and Lord Loughborough in the same case, which came before them on a writ of error. 1 Term R. 512. The effect of these English authorities, as stated by Marcy, J., in Burt v. Place, ubi supra, is as follows: "That if it appears by the plaintiff's own declaration that the prosecution, which he charges to have been malicious, was before a tribunal having jurisdiction, and was there decided in favor of the plaintiff in that court, nothing appearing to fix on him any unfair means in conducting the suit, the court will regard the judgment in favor of the prosecution satisfactory evidence of probable cause." In that case the judgment relied upon by the defendant was held not to be conclusive. The reason is stated to be as follows: "Though the plaintiff admits in his declaration that the suits instituted before the magistrate by the defendant were decided against him, he sufficiently countervails the effect of that admission by alleging that the defendant, well knowing that he had no cause of action, and that the plaintiff had a full defense, prevented the plaintiff from procuring the necessary evidence to make out that defense by causing him to be detained a prisoner until the judgments were obtained, and by alleging that the imprisonment was for the very purpose of preventing a defense to the actions." Commenting on this case, the Court of Appeals of Kentucky in Spring v. Besore, 12 B. Mon. 551, 555, says: "The principle settled in the case last cited we understand to be that such a judgment will not, in every possible state of case, be deemed to be conclusive of the question of probable cause; but that like judgments in other cases, its effect may be destroyed by showing that it was procured by fraud or other undue means.' That court proceeds to state the rule as follows: "The correct doctrine on the subject is, in our opinion, that the decree or judgment in favor of the plaintiff, although it be afterward reversed, is in cases where the parties have appeared, and proof has been heard on both sides, conclusive evidence of probable cause, unless other

matters be relied upon to impeach the judgment or decree, and show that it was obtained by fraud, and in that case, it is indispensable that such matter should be alleged in the plaintiff's declaration, for unless it be done, as the other facts which have to be stated establish the existence of probable cause, the declaration is suicidal. The plaintiff's declaration will itself always furnish evidence of probable cause when it states, as it must do, the proceedings that have taken place in the suit alleged to be malicious, and shows that a judgment or decree had been rendered against the plaintiff. To counteract the effect of the judgment or decree, and the legal deduction of probable cause, it is incumbent upon him to make it appear in his declaration that such judgment or decree was unfairly obtained, and was the result of acts of malice, fraud, aud oppression on the part of the defendant, designed and having the effect to deprive him of the opportunity and necessary means to have defeated the suit, and obtained a judgment in his favor." The limitation upon the general principle declared in Burt v. Place, ubi supra, were followed by the Supreme Court of Maine in Witham v. Gowen, 14 Me. 362, and both decisions were referred to in the subsequent case of Payson v. Caswell, 22 Me. 212, 226, where the court said: "In these two cases we have instances of exceptions to the general rule, indicative of the general nature of the characteristics which might be expected to attend them; but the rule itself remains unimpaired. If there be a conviction before a magistrate having jurisdiction of the subject-matter, not obtained by undue means, it will be conclusive evidence of probable cause. ." The propriety of this limitation of the rule seems to have been admitted by the Supreme Judicial Court of Massachusetts in Bacon v. Towne, 4 Cush. 217, 236, though in later cases it reiterated the broader rule, as originally stated in Whitney v. Peckham, ubi supra; Parker v. Huntington, 7 Gray, 36. This seems to reconcile the apparent contradiction in the author. ities, and states the rule, which we think to be well grounded in reason, fair and just to both parties, and consistent with the principle on which the action for malicious prosecution is founded. The Supreme Court of Louisiana in this case erred in not giving due effect to the decree in question of the Circuit Court of the United States. The latter is a court co-ordinate to the Supreme Court of Louisiana in authority, and equal in dignity, being the highest Federal court sitting in that State, whose judgments and decrees are final and conclusive, subject only to review and reversal in the Supreme Court of the United States. In the case in which the decree complained of was pronounced the Circuit Court did not act without jurisdiction, the subject-matter of the suit being a controversy arising under the Constitution of the United States. The argument of the counsel for, the defendant in error to the contrary, which deduces what the judge of the inferior court in his charge to the jury alleged to be a usurpation of jurisdiction, merely from the fact that its decree was reversed by this court, could only be true if the general proposition were true that all judgments reversible for error are void for want of jurisdiction. Having jurisdiction of the parties and of the subject-matter of the suit, the judges of the Circuit Court were bound to declare the law of the case between the parties in the light of their own convictions, and under a sense of their official responsibilities, not being under any legal obligation to regard the decision of the Supreme Court of Louisiana upon a question of Federal law as controlling by reason of its authority, whatever respect and deference they might see fit to accord to it by way of persuasion and argument. And their judgment or decree, when rendered, is binding and perfect between the parties until reversed, without

regard to any adverse opinion or judgment of any other court of merely concurrent jurisdiction. Its integrity, its validity, and its effect are complete in all respects, between all parties in every suit, and in every forum, where it is legitimately produced as the foundation of an action, or of a defense, either by plea or in proof, as it would be in any other circumstances. While it remains in force it determines the rights of the parties between themselves, and may be carried into execution in due course of law to its full extent, furnishing a complete protection to all who act in compliance with its mandate, and, even after reversal, it still remains, as in the case of every other judgment or decree in like circumstances, sufficient evidence in favor of the plaintiff who instituted the suit or action in which it is rendered, when sued for a malicious prosecution, that he had probable cause for his proceeding. Jan. 24, 1887. Crescent City Live-Stock Landing & Slaughter-House Co. v. Butchers' Union Slaugh ter-House & Live-Stock Landing Co. Opinion by Matthews, J.

PRINCIPAL AND AGENT-FACTOR-POWER TO PLEDGE - MISSOURI ACT OF MARCH 4, 1869-CUSTOM.—(1) At common law a factor has no power to pledge, either by transfer of the goods themselves or of the bill of lading, or other symbol of title; and under the Missouri act of March 4, 1869, applying in terms only to cases of negotiation of the symbol of title by written indorsement, a transfer not shown to have been made by written indorsement is not protected. Kinder v. Shaw, 2 Mass. 398; Warner v. Martin. 11 How. 209, 224; Phillips v. Huth, 6 Mees. & W. 572, 596; Cole v. Northwestern Bank, L. R., 10 C. P. 354, 368. The essential difference between a power to sell and a power to pledge is well brought out in a recent case in the House of Lords by Lord Chancellor Selborne, who said: "It is manifest that when a man is dealing with other people's goods, the difference between an authority to sell and an authority to mortgage or pledge is one which may go to the root of all the motives and purposes of the transaction. The object of a person who has goods to sell is to turn them into money; but when those goods are deposited by way of security for money borrowed, it is a transaction of a totally different character. If the owner of the goods does not get the money, his object and purpose are simply defeated; and if on the other hand he does get the money, a different object and different purpose are substituted for the first, namely, that of borrowing money and contracting the relation of debtor with a creditor, while retaining a redeemable title to the goods, instead of exchanging the title to the goods for a title, unaccompanied by any indebtedness, to their full equivalent in money." City Bauk v. Barrow, 5 App. Cas. 664, 670. None of these provisions of the Missouri statutes are limited or even ad. dressed to factors or other agents authorized to sell the goods of their principals, and intrusted for that purpose with the possession either of the goods, or of warehouse receipts, bills of lading, or other similar documents in which such agents are named as consignees. But their leading object is to regulate the manner and effect of transferring warehouse receipts and bills of lading by indorsement. The statute applies only to transfers of warehouse receipts and bills of lading by "indorsement in writing thereon, and the delivery thereof so indorsed." The finding of facts contains this statement: "It is not shown whether or not the bills of lading or the warehouse receipts, or any of them, were indorsed in writing by J. H. Dowell & Co., or by any one, when transferred to the bank; there being no evidence on this specific matter." It cannot be presumed, that either the bills of lading or the warehouse receipts were indorsed in writing as required of the statute; and no better title passes by a

transfer of the symbols without such indorsement than by a delivery of the goods which they represent. Rice v. Cutler, 17 Wis. 351, 358, 359; Hirschorn v. Canney, 98 Mass. 149; Erie & Pacific Dispatch v. St. Louis Cotton Comp. Co., 6 Mo. App. 172; Fourth Nat. Bank v. St. Louis Cotton Co., 11 id. 333. (2) Factors having no power, by the law of Missouri, to make a pledge of the goods of their principals by a transfer, without indorsement in writing, of the bills of lading or warehouse receipts, the finding of the Circuit Court, that the transaction between the factors and the plaintiff "were all according to the general usage of trade between banks and cotton factors at St. Louis," cannot aid the plaintiff, because the usage attempted to be set up was not shown to have been known to the defendants, or to other owners of cotton; and because it was contrary to law, in that it undertook to alter the nature of the contract between the factors and their principals, which authorizes them to sell, but not to pledge, and in that it would sustain a pledge by a factor of the goods of several principals to secure the payment of his own general balance of accounts to a third person. Barnard v. Kellogg, 10 Wall. 383; Irwin v. Williar, 110 U. S. 499; Newbold v. Wright, 4 Rawle, 195; Lehman v. Marshall, 47 Ala. 362; Leuckhart v. Cooper, 3 Bing. N. C. 99; S. C., 3 Scott. 521, and 2 Hodges, 150, Robinson v. Mullett, L. R., 7 H. L. 802. Jan. 10, 1887. Allen v. St. Louis Nat. Bank. Opinion by Gray, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

COVENANT-RUNNING WITH LAND—SALE OF LAND— LEASE.-On August 20, 1866, W. owned certain oilproducing lands, subject only to the unexpired terms of leases theretofore given by his grantors. The Newburg Petroleum Company, by assignment, owned such leases, and on that day released and quit-claimed to W. all its right, title and interest in such lands, without any reservation, and it put him into possession. In part consideration for this conveyance, W. covenanted and agreed for himself with the company to pay and deliver to the company, its successors and assigns, upon the leased premises, the one-sixth part of all the oil and other mineral substances produced or pumped thereon or therefrom daily, as produced during the remainder of the terms granted in the leases. On September 3, 1866, such conveyance and agreement were duly recorded, and on that day W. sold and conveyed to sundry parties all his interest in the different parts of such lands, and he put each grantee into possession of the part so conveyed. Thereafter, and during the terms of the leases, W.'s grantees produced large quantities of oil from the respective parts, but W. and his grantees failed and refused to account to the N. P. Co. for such production, or to pay and deliver the one-sixth part thereof, as W. agreed to do. The N. P. Co. brought its action against W. and his grantees on W.'s agreement with the N. P. Co., and it sought to hold these grantees liable for the covenant of W. To the petition alleging such facts these grantees demurred. Held, such agreement is personal to W., and did not run with the land so as to bind the grantees of W. for his failure to perform such agreement. It is claimed that the plaintiff may hold the assignees of W. by virtue of the principle in the first rule given in Spencer's case, 1 Smith Lead. Cas. *69: "(1) When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quo annexed and appurtenant to the thing demised, and shall go with the laud, and shall bind the assignee, although he be not bound by ex

press words; but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which had no being." The plaintiff, as assignee of these leases, owned no part of these lands, and it had only a right, for a term of years, to produce or pump oil and other mineral substances on and from these lands. Subject to this right for such term of years, W. owned these lands, and all that was appurtenant thereto; and when the plaintiff released and conveyed to W., without reservation, this right, and all the plaintiff's interest in the lands, and put him into possession of the same, and when it took W.'s agreement to pay and deliver to plaintiff the one-sixth part of what should be produced and pumped thereon and therefrom, there was no "thing in esse, parcel of the demise," that was "annexed and appurtenant to the thing demised," so as to bring this case within the first part of that rule in Spencer's case, and it seems to fall within the second part of that rule, and that the covenant binds "the covenantor, his executors or administrators, and not the assignee." W. did not attempt to bind his assigns fn express terms, and he did not make the payment of the one-sixth part of the production a charge on the land. Neither did the law make such payment or delivery a lien upon the land, as it does in case of a tax on land. We need but to refer to the "much learning" upon this general subject collected in connection with Spencer's case, in 1 Smith Lead. Cas. *68 et seq. Ohio Sup. Ct., Jan. 18, 1887. Newburb Petroleum Co. v. Weare. Opinion by Follett, J. [See note, 56 Am. Rep. 151.-ED.]

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CRIMINAL LAW-GAMING-FREQUENTING GAMBLINGHOUSE.-Evidence of a single visit, or of occasional visits to a gambling-house, is not sufficint to sustain a conviction for frequenting a gambling-house. Webster, in dis dictionary, states the meaning of the verb to frequent" to be, to visit often; to resort to often or habitually. Proof of an occasional visit to a house in which gambling is permitted is not sufficient to sustain a conviction in a case like the one before us. To make the frequenting of such a house a misdemeanor, it must be something akin to or in the nature of a habit. When a person engages in a game for a wager, whether in a gambling house or elsewhere, he commits a criminal offense, but the offense he thus commits is an essentially different one from that charged in this case. A person may be guilty of frequenting a gambling-house for the purpose of gaming without actually engaging in any game. Howard v. State, 64 Ind. 516. It is against a dissolute and demoralizing course of life which the law disclaims in the second division of the statute hereinabove set out. State v. Miller, 5 Blackf. 502; State v. Allen, 69 Ind. 124; Bish. Stat. Crimes, § 1018; 1 Bish. Crim. Law, $1102; 2 Bish. Crimes, § 651; State v. Markham, 15 La. Ann. 498; Antle v. State, 6 Tex. App. 202. Ind. Sup. Ct., Jan. 12, 1887. Green v. State. Opinion by Niblack, J.

EXECUTOR AND ADMINISTRATOR-INTEREST.- An executor is chargeable only with simple interest, although he mingled and loaned the funds of the estate with his own, when he did so in good faith, disclosing all the profits, and without fault or want of prudence, suffered some losses, but claimed no deduction therefor and nothing for his services, when such interest exceeds what he actually received on the funds, and the funds had not been used in business, trade or speculation. Vt. Sup. Ct., Jan. 25, 1887. Perkins' Estate v. Hollister. Opinion by Walker, J.