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In Sutherland v. Northmore, 1 Dick. 56, a feme covert had a power under her marriage settlement, to create a term and to raise money after the death of her husband. Her execution thereof during her husband's life-time was, on the case being sent to the King's Bench, held to be good; and this holding the Court of Chancery confirmed. See Wandesforde v. Carrick, L. R., 5 Irish Eq. 486.

In Duke v. Palmer, 10 Rich. Eq. 380, a testator appointed his wife and son executors, and gave to his wife several slaves during her life, and at her death to be sold and equally divided among his lawful heirs. The son alone qualified as executor, and afterward with his mother's co-operation, sold one of the slaves for a full consideration. The mother survived eleven years thereafter. Held, that one of testator's heirs could not, after the mother's death, set aside the sale as against a bona fide purchaser of the slave from the original purchaser, but that his only remedy was against the executor for the proceeds of the sale.

In Bazemore v. Davis, 48 Ga. 339, lands were held in trust for A. for life, and at her death to her children. The trustee sold and conveyed the whole estate, as trustee, A. entering on the deed a written consent to its execution. Held, that A. did not thereby forfeit her life estate in the premises, so that a right of action immediately accrued to the remaindermen. See also Champlin v. Champlin, 3 Edw. Ch. 571; Styer's Appeal, 2 Grant's Cas. 453; Loomis v. McClintock, 10 Watts, 274; Bartles' case, 6 Stew. Eq. 46; Greene v. Aborn, 10 R. I. 10.

The court has no jurisdiction to order a sale before the time designated in the power, on the ground that it would be beneficial to the parties, Johnstone v. Baker, 8 Beav. 233; Bristow v. Skirrow, 27 id. 590; Blacklow v. Laws, 2 Hare, 40; Troy v. Troy, Busb. Eq. 85; Simpson v. Cook, 24 Minn. 180; 27 id. 147; nor the Legislature, Rodman v. Munson, 13 Barb. 63; Ervine's Appeal, 16 Penn. St. 256; see Clarke v. Hayes, 9 Gray, 426; Mohr v. Porter, 51 Wis. 504; Forster v. Forster, 129 Mass. 564; Cooley's Const. Lim. (4th ed.) *97.-J. H. STEWART REP.

[See also 17 Am. Rep. 709; 13 id. 23; 25 Eng. Rep. 792.1

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

MORTGAGE-COVENANTS-AFTER-ACQUIRED TITLEMARRIED WOMAN-CAPACITY TO CONTRACT-RULE OF PROPERTY-FOLLOWING STATE COURTS.-A mortgage containing covenants of general warranty will, as between the mortgagor and mortgagee, pass an after-acquired title. Rice v. Kelso, 7 N. W. Rep. 3; 10 id. 335; Jones Mort., $$ 561, 682, 825, and cases cited. But this rule does not apply to covenants in the deed of a married woman, for they amount to nothing more than a release of dower, and do not estop her to claim an afteracquired interest. Bish. Mar. Wom., § 603; Childs v. McChesney, 20 Iowa, 431; Iowa Code, § 1937. There is upon the face of the mortgage no express statement that the wife shall be bound by the covenants contained therein. O'Neil v. Vanderburg, 25 Iowa, 104; Thompson v. Merrill, 10 N. W. Rep. 796. In order to set aside a contract upon the ground of unsoundness of mind it must appear that there was a total deprivation of reason. Ex parte Barnsley, 3 Atk. 168; Stewart's Ex'r v. Lispenard, 26 Wend. 255. The more modern rule is that it is only necessary to show that the party executing the contract was of such weak and feeble mind as to be incapable of comprehending its nature. This rule is sometimes stated in another form, thus: *Appearing in 20 Federal Reporter.

"To constitute such unsoundness of mind as should avoid a deed at law the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life." This statement of the rule is given in the opinion of the House of Lords in Ball v. Maruin, 1 Dow. & C. 380, and is quoted with apparent approval by the Supreme Court of the United States in Dexter v. Hall, 15 Wall. 9. In the former of these cases the court below refused to charge that the unsoundness of mind must amount to idiocy; and this ruling was sustained first by the Court of King's Bench in Ireland, afterward by the Exchequer Chamber, and finally by the House of Lords. The rule is thus stated in Dennett v. Dennett, 44 N. H. 531: “The question then in all cases where incapacity to contract from de fect of mind is alleged, is not whether the person's mind is impaired, nor if he is affected by any form of insanity, but whether the powers of his mind have been so far affected by his disease as to render him incapable of transacting business like that in question." And again: "Every person is to be deemed of unsound mind who has lost his memory and understanding by old age, sickness or other accident, so as to render him incapable of transacting his business and of managing his property. When it appears that a grantor has not strength of mind and reason to understand the nature and consequences of his act in making a deed, it may be avoided on the ground of insanity." Re Barker, 2 Johns. Ch. 232. In Converse v. Converse, 21 Vt. 168, it is said that a person is of unsound mind if "the mind is inert, the memory is unable to recall and the mind to retain in one view all the facts upon which the judgment is to be formed for so long a time as may be required for their due consideration." The rule as to the responsibility of a lunatic or person non compos mentis upon his coutracts, is the same in equity as in law; and if this court is bound to follow the ruling in Dexter v. Hall it is conclusive of the question now under consideration. It is insisted however that a different doctrine has been established in this State by several decisions of its Supreme Court, and that these decisions constitute a rule of property here, which this court should adhere to. It is true that the Supreme Court of this State has held that "equity will not interfere to set aside a conveyance, on the ground of the insanity of the grantor, to one who shall have purchased in good faith, and for value, in ignorance of the mental condition of the grantor." Ashcraft v. De Armond, 44 Iowa, 229. And also that "persons of unsound mind will be bound by their executed contracts, where such contracts are fair and reasonable, and were entered into by the other parties without knowledge of the mental unsoundness, in the ordinary course of business, and where the parties cannot be placed in statu quo. Abbott v. Creal, 56 Iowa, 175; S. C., 9 N. W. Rep. 115. And see, to the same effect, Behrens v. McKenzie, 23 Iowa, 333. These cases undoubtedly hold a different doctrine from that laid down in Dexter v. Hall; and the question is whether they establish a rule relating to land titles within the State of Iowa which this court should follow, notwithstanding a con trary decision by the Supreme Court of the United States. It is true that where any principle of law establishing a rule of real property has been settled in the State courts that rule will be applied by the Federal courts within the same State; and it makes no difference whether such rule of property grows out of the Constitution or statutes of the State, or out of the principles of the common law adopted and applied to such titles. Jackson v. Chew, 12 Wheat. 153. It may be doubted whether the question here presented is not a question of equity law, and if it is, this court is not bound by the decision of the State court. Neves v. Scott, 13 How. 268; United States v. Howland,

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4 Wheat. 115; Boyle v. Zacharie, 6 Pet. 658. The de. cisions of the highest court of a State may be said to constitute a rule of property when they relate to and settle some principle of local law directly applicable to titles. A rule of property is one thing; a rule respecting the validity of a class of contracts which may or may not affect titles to property is another and a different thing. It has been held that the Federal courts are not bound by the decisions of the State courts determining whether an instrument is a promissory note (Bradley v. Lill, 4 Biss. 473), and I suppose it would make no difference if such an instrument were secured by mortgage. The Federal courts would still maintain the right to decide for themselves all questions as to its validity, and its force and effect, except such as are determined by local statute. Again let us suppose that the State courts establish a rule respecting the right of purchasers and assignees of negotiable paper, which is contrary to a rule upon the same subject established by the Supreme Court of the United States. It is well settled as a general proposition that this being a rule of general commercial law the Federal courts decide upon it for themselves. Would the rule be otherwise in a case where such an instrument happens to be secured by a mortgage? The case of Thomas v. Hatch, 3 Sumn. 170, is instructive upon the question, what is to be understood by the phrase "rule of property?" The case turned largely upon the construction of a deed. The Supreme Court of the State (Maine) had in another case construed the same instrument; but Mr. Justice Story refused to adopt that construction, saying: "If this were a question of purely local law we should not hesitate to follow the decision of that learned court, for which we entertain the greatest respect. But the interpretation of a deed of this sort is in no just sense a part of the local law. It must be interpreted everywhere in the same manner; that is to say, according to the force of the language used by the grantor, and the apparent intentions of the parties deducible therefrom." Edwards v. Davenport. Cir. Ct., S. D. Iowa, May, 1883. Opinion by McCrary, J.

TRADE-MARK-INFRINGEMENT-SIMILARITY-INTENTION TO DECEIVE.-The question to be considered in this case is whether the conduct of the defendant amounts to an infringement of the plaintiff's trademark, or an injury to his legal or equitable rights. As was well remarked by the Kentucky Court of Appeals in the case of Avery v. Mickle, the object of the trade-mark law is to prevent one person from selling his goods as those of another, to the injury of the latter and of the public." It grew out of the philosophy of the general rule that every man should so use his own property and rights as not to injure the property or rights of another, unless some priority of right or emergency exists to justify a necessarily different manner of use. It is true in this case that the trade-mark upon the tobacco of defendant is not a fac simile of that upon the tobacco of plaintiff. If it was, it would of course be an infringement. They are not exactly similar. But to constitute an infringement exact similarity is not required; there may be an infringement without it. The Supreme Court of the United States in Gorham Co. v. White, 14 Wall. 511, declares: "Two trade-marks are substantially the same in legal contemplation if the resemblance is such as to deceive an ordinary purchaser "- giving such attention to the same as such a person usually gives, and to cause him to purchase the one supposing it to be the other. The same court, in McLean v. Fleming, 96 U. S. 255, says: "Where the similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care and caution in such matters, it

is sufficient to give the injured party a right to redress." Nor need the resemblance be such as would deceive persons seeing the two trade-marks placed side by side (Manuf. Co. v. Trainer, 101 U. S. 64), or such as would deceive experts, persons, because of their peculiar knowledge from their being wholesale or retail dealers, or in any other way specially conversant with the trade-mark simulated. But the tradesman brings his privilege of using a particular trade-mark under the protection of equity if he proves, or it is apparent or manifest to the court by inspection, that the representation employed bears such a resemblance to his as to be calculated to mislead the public generally, who are purchasers of the article, to make it pass with them for the one sold by him. If the indicia or signs used tend to that result the party aggrieved will be entitled to an injunction. This principle is sustained by the cases above referred to; by Walton v. Crowley,

Blatchf. 440; 2 Story Eq. Jur. 951; 2 Kent Comm. 453, and a long and unbroken line of authorities, American and English. See also Filley v. Fassett, 44 Mo. 173. Liggett & Myer Tobacco Co. v. Hynes. Dist. Ct., W. D. Ark., May, 1882. Opinion by Parker, J.

* *

EJECTMENT-POSSESSION OF DEFENDANT-TRESPASS. -In Arkansas, before the plaintiff can recover in ejectment, he must show that at the time of the commencement of the action the defendant was in possession. Tyler Ej. & Adv. Euj. 472; Owen v. Fowler, 24 Cal. 192; Owen v. Morton, id. 373; Pope v. Dalton, 31 id. 218; Williamson v. Crawford, 7 Blackf. 12; Pope v. Pendergrast, 1 A. K. Marsh. 122. The mere act of cutting timber on land and hauling it off is not such possession of the land as will entitle the owner to maintain ejectment against the trespasser, and occasional intrusions of this sort do not constitute possession, whether done under claim of title or not. Such acts are mere trespasses against the true owner, whoever he may be. * But it never was supposed that the hunter had possession of the forest through which he roamed in pursuit of game; and no more can a woodchopper be said to possess the woods in which he enters to cut logs. Thompson v. Burhans, 79 N. Y. 93; Austin v. Holt, 32 Wis. 478, 490; Washburn v. Cutter, 17 Miun. (Gil.) 361; 3 Washb. Real Prop. 133, 134. There is nothing on the record to show the land is not susceptible of actual occupation, cultivation and improvement. The case is not within the rule of Ewing v. Burnet, 11 Pet. 41, and Door v. School District, 40 Ark. 237. Under the consent rule in the old form of the action of ejectment the defendant was compelled to confess lease, entry and possession, or pay the costs of suit, and the plaintiff could bring another action (3 Bl. Comm. 205; Tyler Ej. 458, 472), and in many of the States, by statute, actions of ejectment may now be brought against persons claiming title or interests in real property, although not in possession. Harvey v. Tyler, 2 Wall. 328, 348; Tyler Ej. 458, 472. But neither of these rules, as we have seen, have application here. In this State a verdict and judgment in ejectment is final and conclusive on the title and right of possession put in issue by the pleadings. Where this is the rule it is difficult to perceive why the possession of the land by the defendant should be an indispensable prerequisite to the plaintiff's right to have the merits of their respective titles tried at law. It is probably another instance of the continuance of a rule after the reason for it has ceased to exist, and after it has become an obstruction rather than an aid to the administration of justice. However this may be, the old rule is embedded in the statute law of this State, and the courts are powerless to change it. Ozark Land Co. v. Leonard. Cir. Ct., E. D. Ark., April, 1884. Opinion by Caldwell, J.

CARRIER-BILL OF LADING-RESTRICTING LIABILITY -NEGLIGENCE.-In this case the bill of lading exempts

the vessel from liability for loss occasioned by "pirates, robbers, thieves, * ** or from any act, neglect or default of the master or mariners." The defendant's vessel was a general ship, and a common carrier. The clause of the bill of lading exempting her from liability for any "act, neglect or default of the master or mariners" is therefore invalid, and affords no defense if the loss was occasioned through their negligence. Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; The Hadji, 16 Fed. Rep. 861; 18 id. 459. It is not necessart to consider the conflicting views as to the ship's liability under the exception of "thieves, robbers," etc., that the theft had been committed by one of her own employees (Spinetti v. Atlas Steamship Co., 80 N. Y. 71; Taylor v. Liverpool, etc., L. R., 9 Q. B. 546), nor what effect, in the consideration of that question, should be given to the principles laid down by the Supreme Court in Railroad Co. v. Lockwood; since J., who is satisfactorily shown to have committed the theft, was not at this time in the ship's employ, but had been previously discharged. The exception of loss by thieves or robbers is valid, unless it be shown that there was negligence on the part of the ship which contributed to the theft or facilitated it; and upon defendant's proving that the theft was committed by a person not belonging to the ship, the burden of proof is upon the libellants to show to the satisfaction of the court that the loss might have been avoided by the exercise of reasonable and proper care on the part of the ship, and that the theft would not have occurred if such care had been exercised. If the carelessness of the ship was such as to invite the theft, or to make it easy, or if the attempt would not have been successful except through the lack of such watchfulness and care as was reasonably incumbent upon those having charge of such treasure, then the loss must be held to be occasioned by the carrier's negligence and inattention to his duty, as well as through the direct acts of the thief. In Clark v. Barnwell, 12 How. 272, 281, the court say: "But if it can be shown that it (the loss) might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, they may still be held liable. It is competent for the libellants to show that the respondents might have prevented it (the loss) by proper skill and diligence in the discharge of their duties." In Transportation Co. v. Downer, 11 Wall. 129, 133, the court say: "If the danger might have been avoided by the exercise of proper care and skill on the part of the defendant, it is plain that the loss should be attributed to the negligence and inattention of the company, and it should be held liable, notwithstanding the exception in the bill of lading." See also Six Hundred and Thirty Quarter Casks of Sherry Wine, 14 Blatchf. 517; Dedekam v. Vose, 3 id. 44; Richards v. Hansen, 1 Fed. Rep. 54, 63; The Invincible, 1 Low. 225; The Montana, 17 Fed. Rep. 377. The Saratoga. Dist. Ct., S. D. N. Y., June, 1884. Opinion by Brown, J.

CORPORATION-NOTICE TO STOCKHOLDERS; NOT TO CORPORATION.-A corporation can have no agents until it is brought into existence, and after that it acts and becomes obligated only through the instrumentality of its authorized representatives. Stockholders cannot bind it except by their action at corporate meetings, and it is undoubted law that notice to individual stockholders is not notice to the corporation, and their knowledge of facts is not notice of them to the corporation. In re Carews, Act. 31 Beav. 39; Union Canal Co. v. Loyd, 4 Watts & S. 393; Fairfield Turnpike Co. v. Thorp, 13 Conn. 182; The Admiral, 8 Law Rep. (N. S.) Mass. 91. Instances may occur where associates combine together to create a

paper corporation, as a form or shield to cover a partnership or joint venture, and where the stockholders are partners in intention. The liberal facilities offered by the statutes of many of our States for organizing such corporations are undoubtedly often utilized by those whose only object is to escape liability as partners by calling themselves stockholders or directors. Where such a concern is formed, a court of equity might treat the associates as partners in fact, disregard the fiction of a corporate relation between them, and subject the title of the property transferred to it by the promoters to any equities which might have existed as against them. The general rule which charges a principal with the knowledge of his agent is founded on the presumption. that the agent will communicate what it is his principal's interest to know and the agent's duty to impart. In the language of Mr. Justice Bradley, the rule "is based on the principle of law that it is the agent's duty to communicate to his principal the knowledge which he has respecting the subject-matter of the negotiation, and the presumption that he will perform that duty." The Distilled Spirits, 11 Wall. 367. The rule has no application when an agent divests himself of his fiduciary character and becomes a contracting party with his principal, because there is no reason to presume that he will impart information which it is for his interest to suppress. "When a man is about to commit a fraud it is to be presumed that he will not disclose that circumstance to his colleagues." Kennedy v. Green, 3 Mylne & K. 699. Accordingly it has been repeatedly adjudged that a corporation will not be charged by the knowledge of a director in a transaction in which the director is acting for himself, because he represents his own interests, and not those of the corporation. Com. Bank v. Cunningham, 24 Pick. 270, 276; Housatonic & Lee Banks v. Martin, 1 Metc. 308; Winchester v. Balt. & S. R. Co., 4 Md. 239; Seneca Co. Bank v. Neass, 5 Denio, 337; La Farge Fire Ins. Co. v. Bell, 22 Barb. 54; Terrell v. Branch Bank of Mobile, 12 Ala. (N. S.) 502. Cir. Ct., N. D. New York. Davis Imp. Wrought Iron W. W. Co. v. Davis Wrought Iron W. Co. Opinion by Wallace, J.

JURISDICTION-U. S. COURTS - ESTOPPEL DENY AFTER REMOVAL.- All the circumstances necessary to confer jurisdiction, as provided in the first and second sections of the act of 1875, are found to exist in this case; the amount exceeds $500 and the parties are citizens of different States. Nothing more is required. Brooks v. Bailey, 9 Fed. Rep. 438; Petterson v. Chapman, 13 Blatchf. 395; Claflin v. Ins. Co., 110 U. S. 81. The subsequent clause of the first section, which provides that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings," does not limit the jurisdiction of the court but relates to the mode of acquiring it. It is intended for the protection of the defendant and confers a privilege which he can waive by appearing without asserting it. Robinson v. Nat. Stock-yard Co., 12 Fed. Rep. 361; Toland v. Sprague, 12 Pet. 300; Sayles v. N. W. Ins. Co., supra; Flanders v. Etna Ins. Co., 3 Mas. 158; Gracie v. Palmer, 8 Wheat. 699; Kelsey v. Penn. R. Co., 14 Blatchf. C. C. 89. If permitted to do so, the plaintiff would undoubtedly have little difficulty in showing that the defendant is found within this district and is therefore in no position to claim the benefit of the privilege alluded to, but confining the case strictly to the stipulated facts it must be held that the defendant has waived any objection which it might have taken. The jurisdiction of this court was invoked by

the defendant and it should abide the result in a forum of its own seeking. Cir. Ct., N. D. New York, June 6. 1884. Edwards v. Conn. Mut. Life Ins. Co. Opinion

by Coxe, J.

EASEMENT-IMPLIED RESERVATION-DEDICATION TO PUBLIC.-At common law a dedication does not pass a fee or freehold in the soil, nor give any right to the profits of the soil. It only serves as an estoppel in pais to the owner of the soil to assert any rights of possession inconsistent with the enjoyment of the uses to which the dedication was made. Washb. Easem. 220. A dedication may be made without writing by act in pais as well as by deed. It is not at all necessary that the owner should part with the title which he has, for dedication has respect to the possession, and not the permanent estate. Its effect is not to deprive a party

of his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has. Where as in the case of a highway, the public acquire but a mere right of passage, the owner, who makes the dedication, retains a right to use the land in any way compatible with the full enjoyment of the public easement. Id. 216; Hunter v. Trustees, 6 Hill, 411; Tallmadge v. East River Bank, 26 N. Y. 108; Dubuque v. Maloney, 9 Iowa, 455. The public takes no more than the owner gives. Where a plat of land has been dedicated as a public square, the authorities of the town were prohibited from making use of the land for purposes inconsistent with its use as a public square. Abbott v. Mills, 3 Vt. 521; State v. Catlin, id. 530; Pomeroy v. Mills, id. 279; Cincinnati v. White's Lessees, 6 Pet. 431. It follows that the municipal authorities cannot deprive the owner of land, who has simply dedicated to the public an easement to pass over it, of any use of the land dedicated not inconsistent with the full enjoyment of the easement. Cir. Ct., E. D. Tenn., April, 1884. Stevenson v. Chattanooga. Opinion by Key, J.

STATUTE OF FRAUDS-CONTRACT FOR SALE OF GOODS -MEMORANDUM.-The travelling agent of the defend ant company addressed to his principals an order, "send to C. W. S. Banks' terms net 30 days; freight allowed," signed by him as agent and followed by a list of the merchandise desired, with prices and directions for shipping, signed by Banks, the plaintiff. Held, that the paper was upon its face merely an order, and not a memorandum of sale signed by the defendant or his agent, within the terms of the statute of frauds. There is no real question but that these instruments sufficiently set forth the terms of the sale, if they show a sale, nor but that the name of the agent is sufficiently signed to the memorandum, if it is a memorandum of a bargain of sale and he had authority to bind the defendant to a contract of sale. Drury v. Young, 58 Md. 546. The memorandum must set forth on its face enough to gather a contract of sale from, as against the party to be charged with the consequences of such a contract in the action. Egerton v. Mathews, East, 307; Cooper v. Smith, 15 id. 103; Bailey v. Ogden, 3 Johns. 399. This memorandum appears to be of an order, and not of a sale, and would so far as it shows for itself, fail to make out a sale without acceptance of the order. Chit. Cont. 349. Cir. Ct., D. Vermont, March 20, 1884. Banks v. Harris Manf. Co. Opinion by Wheeler, J. (See 20 Fed. Rep. 668, note; 47 Am. Rep. 532; 48 id. 110.--ED.)

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care and labor in consequence of her child's sickness, and sustained pecuniary loss by reason of boarders being kept away. Held, that defendant was liable for damages. The carrying of persons infected with contagious diseases along public thoroughfares, so as to endanger the health of other travellers, is indictable as a nuisance. Add. Torts, § 297; Rex v. Vantandillo, 4 Maule & S. 73. Spreading contagious diseases among animals by negligently disposing of, or allowing to escape, animals infected, is actionable. Add. Torts (Wood's Ed.), 10, note; Anderson v. Buckton, 1 Stra. 192. A person sustaining an injury not common to others by a nuisance is entitled to an action. Co. Litt. 56a. Negligently imparting such a disease to a person is clearly as great an injury as to impute the having it; and negligently affecting the health of persons injuriously as great a wrong as so affecting that of animals. Cir. Ct., S. D. New York, July 5, 1884. Smith v. Baker. Opinion by Wheeler, J.

PLEDGE-SECURITIES-REHYPOTHECATION BY BROKER.-Where the owner of securities pledges them with a stock-broker as collateral to a loan, the latter has no right to rehypothecate them in such a way that they cannot be restored to the owner upon payment of the loan, although both parties understood that the broker would have to use the securities to obtain the loan. Usage is inadmissible to destroy a contract. Cir. Ct., S. D. New York, June 21, 1884. Oregon & Transcontinental Co. v. Hilmers. Opinion by Wallace, J.

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TRUST-DECLARATION OF MANUAL DELIVERY.In cases of declarations of trust and deeds of conveyance or mortgage, when nothing further is expected to be done by the beneficiary or grantee to complete the transaction as a whole, a formal sealing and delivery, without an actual delivery to the other party, or to a third person for his use, will be sufficient to make the deed or declaration operative immediately, unless something else exist or be done to qualify such formal delivery. In Hope v. Harman, 11 Jur. 1097, Mr. Hope executed a deed to his nephew for a box of jewels, in the presence of a witness, who signed the attesting clause, 'signed, sealed, and delivered." The deed never went out of the possession of the grantor, and Lord Denman left it to the jury to say whether it had been duly executed and delivered with intent to operate immediately, and the jury found that it had been. The instruction was held by the court in banc to have been correct. But declarations of trust are often sustained by much less regard to evidence of delivery than is required for establishing deeds of conveyance. Thus in Fletcher v. Fletcher, 4 Hare, 67, the testator by a voluntary deed, covenanted with trustees that in case A. and B., his two natural sons, should survive him, his executors and administrators should pay to trustees named £60,000 upon trust for them to be paid at 21 years of age. He retained the deed in his possession and told no one of it. By his will he bequeathed all his property in trust for his widow and other persons. The deed was found among his pa pers. It was held by Vice-Chancellor Wigram that it created a trust for A. (who survived the grantor), though the trustee refused to sue at law; and that the retention of the deed in the grantor's custody, and not communicating its existence to the trustee or cestui que trust, did not affect its validity. On the last point the vice-chancellor referred to Dillon v. Coppin, 4 Myln & C. 660, and to Doe v. Knight, 5 Barn. & C. 671. This subject is discussed in Adams v. Adams, 21 Wall. 185; in Buun v. Winthrop, 1 Johns. Ch. 329; Souverbye v. Arden, id. 255; and in Lewin Trusts, 152. Mr. Lewin, as quoted in Adams v. Adams, gives the following rules on this subject: "On a careful examination the rule appears to be, that whether there

was transmutation of possession or not, the trust will be supported, provided it was in the first instauce perfectly created. *** It is evident that a trust is not perfectly created where there is a mere intention or voluntary agreement to establish a trust, the settler himself contemplating some further act for the purpose of giving it completion. ** *If the settler propose to convert himself into a trustee, then the trust is perfectly created, and will be enforced as soon as the settler has executed an express declaration of trust intended to be final and binding upon him, and in this case it is immaterial whether the nature of the * * property be legal or equitable. * Where the settler proposes to make a stranger the trustee, then to ascertain whether a valid trust has been created or not, we must take the following distinctions: If the subject of the trust be a legal interest, and one capable of legal transmutation, as land, or chattels, etc., the trust is not perfectly created unless the legal interest be actually vested in the trustee." It seems to us that the deed in question, regarded merely as a declaration of trust, was clearly executed in a manner to fulfill all the requirements of such an instrument; though we are further of opinion that it was well and sufficiently executed and delivered as a deed of conveyance to transfer the legal title. Doe v. Knight, 5 B. & C. 671; Blight v. Schenck, 10 Penn. St. 285; Diehl v. Emig, 15 P. F. Smith, 320. Cir. Ct., W. D. Penn., May 23, 1884. Linton v. Brown's Admrs. Opinion by Bradley, J.

MICHIGAN SUPREME COURT ABSTRACT.

INNKEEPER-BAGGAGE-GUEST DRUNK-PEDDLER

NOTICE.-An innkeeper's liability for a guest's baggage is not diminished, but rather increased, by the fact that the guest has got too drunk at his bar to take care of it himself. A guest's obligation to notify the innkeeper if he has property of extraordinary value in his baggage does not attach to a peddler stopping at an inn with his pack, or with the usual appurtenances of his business. So held in the case of a peddler who put up at an inn with a comrade, each having a valise and a small box, their baggage amounting to upwards of $300, and whose goods and valise were taken while in the landlord's care. Rubenstein v. Cruikshanks. Opinion by Sherwood, J. (21 Eng. Rep. 561.)

[Decided June 18, 1884.]

TOWN- DIVIDED― DEBT - MANDAMUS.- Where a township is divided into two parts, one part taking a new name and the other retaining the old name, the latter still exists as the old township, and is chargeable with its obligations, and a writ of mandamus will issue to compel it to meet them. Courtright v. Brooks Township. Opinion by Cooley, C. J. (See 11 Am. Rep. 602; 21 Eng. Rep. 267.-ED.)

[Decided June 18, 1884.]

HIGHWAY-LIABILITY OF COMMISSIONER — ABUTTING OWNERS - DAMNUM ABSQUE INJURIA-" WILFULLY."—(1) A commissioner of highways, or an overseer acting under his direction, incurs no liability to abutting owners, if in the proper exercise of his lawful discretion, and for the sole purpose of improving the highway, he runs a ditch in front of their premises which they have to bridge in order to reach the road. The injury, if any, which a lawfully constructed ditch occasions an abutting owner, is damnum absque injuria. Acts done by authority of a valid statute, and with reasonable care, will not support any liability for resulting damage. (2) Abutting owners have the right of access to the highway, and one who has been cut off therefrom by the running of a ditch, or the improvement of the road, may bridge the ditch,

or grade the approach to his premises; but in so doing he must not obstruct the ditch or the way. (3) It is "wilfully" obstructing a public ditch for one who knows its character to purposely and perversely fill it up in a permanent way, even though his object is to obtain access from his lands to the highway, and the act is done under a mistaken notion of his rights. The word "wilfully," when used to denote the intent with which an act is done, is a word which is susceptible of different significations, depending upon the context in which it is used. It is employed in penal statutes more frequently to distinguish between those acts which are intentional and by design and those which are thoughtless or accidental. It may sometimes mean corruptly or unlawfully, or again designedly or purposely, with an intent to do some act in violation of the law. Com. v. Bradford, 9 Metc. 270; Com. v. Brooks, 9 Gray, 303; Com. v. McLaughlin, 105 Mass. 463. Sometimes it is used as implying an evil intent without justifiable excuse. 1 Bish. Crim. Law, § 421; State v. Abram, 10 Ala. 928; McMauus v. State, 36 id. 285; Com. v. Kneeland, 20 Pick. 206; United States v. Three Railroad Cos., 1 Abb. 196; State v. Preston, 34 Wis. 675; 47 Am. Rep. 311. Commissioners v. Ely. Opinion by Champlin, J. [Decided June 18, 1884.]

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LIMITATION.—When a petition for the appointment of a guardian for a child six or seven years of age was signed in the name of the child, and a guardian was appointed and gave bond, etc., held, sufficient to give the court jurisdiction. When the records of the Probate Court showed a license to a guardian to sell the real estate of his ward, a sale and coufirmation thereof, and the execution of a deed to the purchaser, it will be presumed twenty-two years afterward, in an action by the ward to recover the land, that the necessary steps were taken to procure the issuing of the license. Bank of United States v. Dandridge, 12 Wheat. 70; Coombs v. Lane, 4 Ohio St. 112; Ward v. Barrows, 2 id. 241; Tecumseh Town-site Case, 3 Neb. 284. This doctrine is peculiarly applicable to a new State, where from lack of conveniences, and from the ease with which access may be had to them, papers cannot or at least are not, as carefully preserved as in older communities. This consideration with others led to the incorporation into both our Constitutions of the clause requiring sales of real estate by executors, administrators, and guardians to be licensed by the judge of the District Court. We therefore hold that in the absence of proof to the contrary the issuing of license to sell real estate presupposes the existence of the necessary steps to authorize its issue. See Grignon v. Aster, 2 How. 339; Thompson v. Tolmie, 2 Pet. 162; Ballow v. Hudson, 13 Gratt. 672; McPherson v. Cunliff, 11 S. & R. 422; Lalanne v. Moreau, 13 La. 433. A settlement by a ward after he comes of age with his guardian, acceptance of the proceeds of sales made by him, and discharge of the guardian and sureties on his bond, is a ratification of his acts. No action can be maintained by a ward to recover lands sold by his guardian unless the action is commenced within five years next after the ward comes of age. It is claimed on Didier's behalf that the five-years' limitation of the decedents' act only applies in case the sale was valid. There would seem to be no necessity for a statute of limitations to protect a title valid in itself. The statute without doubt, was intended to apply to all sales made by a guardian, executor, or administrator. Spencer v. Sheehan, 19 Minn. 338 (Gil. 292); Miller v. Sullivan, 4

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