had been denied. "The judicial department," said the justice, "has no power over the subject. If the officers who are charged with the duty of laying or collecting taxes refuse to perform their functions, the court, in a clear case of failure, and at the instance of a party directly interested, can, by the prerogative writ of mandamus, compel them to perform acts which are ministerial, as distinguished from those which are judicial or discretionary. This is all that the judicial department can do on the subject, unless the Legislature has expressly conferred upon it further powers." 1 Woods, 247.

And when the case came before this court, we here said, Mr. Justice Miller delivering the opinion: "The power we are here asked to exercise is the very delicate one of taxation. This power belongs, in this country, to the legislative sovereignty, State or national. In the case before us the national sovereignty has nothing to do with it. The power must be derived from the Legislature of the State. So far as the present case is concerned, the State has delegated the power to the levee commissioners. If that body has ceased to exist, the remedy is in the Legislature, either to assess the tax by special statute or to vest the power in some other tribunal. It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal court. It is unreasonable to suppose that the Legislature would ever select a Federal court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee." 19 Wallace, 661.

These authorities and many others to the same purport might be cited -are sufficient to support what we have said, that the power to levy taxes is one which belongs exclusively to the legislative department, and from that it necessarily follows that the regulation and control of all the agencies by which taxes are collected must belong to it.

When creditors are unable to obtain payment of their judgments against municipal bodies by execution, they can proceed by mandamus against the municipal authorities to compel them to levy the necessary tax for that purpose, if such authorities are clothed by the Legislature with the taxing power, and such tax, when collected, cannot be diverted to other uses; but if those authorities possess no such power, or their offices have been abolished and the power withdrawn, the remedy of the creditors is by an appeal to the Legislature, which alone can give them relief. No Federal court, either on its law or equity side, has any inherent jurisdiction to lay a tax for any purpose, or to enforce a tax already levied, except through the agencies provided by law. However urgent the appeal of creditors and the apparent hopelessness of their position without the aid of the Federal court, it cannot seize the power which belongs to the legislative department of the State and wield it in their behalf.

To return to the question propounded: what is the property of a municipal corporation, which, on its dissolution, the courts can reach and apply to the payment of its debts?

We answer it is the private property of the corporation, that is, such as it held in its own right for profit or as a source of revenue, not charged with any public trust or use, and funds in its possession unappropriated to any specific purpose. In this respect the position of the extinct corporation is not dissimilar to that of a deceased individual; it is only such property as is possessed, freed from any trust, general or special, which can go in liquidation of debts.

The decree of the Circuit Court proceeding upon a

different theory of its control over the uncollected taxes of the repealed corporation, and of the property which could be applied to the payment of its debts, cannot be maintained.

On another ground, also, the decree is equally untenable. It adjudges that "all the property within the limits of the territory of the city of Memphis is liable, and may be subjected to the payment of all the debts" for which the suits are brought, and that "such liability shall be enforced thereafter, from time to time, in such manner" as the court may direct.

In no State of the Union, outside of New England, does the doctrine obtain that the privato property of individuals within the limits of a municipal corporation can be reached by its creditors, and subjected to the payment of their demands. In Massachusetts and Connecticut, and perhaps in other States in New England, the individual liability of the inhabitants of towns, parishes, and cities, for the debts of the latter, is maintained, and executions upon judgments, issued against them, can be enforced against the private property of the inhabitants. But this doctrine is admitted by the courts of those States to be peculiar to their jurisprudence, and an exception to the rule elsewhere prevailing. Elsewhere the private property of the inhabitants of a municipal body cannot be subjected to the payment of its debts, except by way of taxation; but taxes, as we have already said, can only be levied by legislativo authority. The power of taxation is not one of the functions of the judiciary; and, whatever authority tho States may, under their Constitutions, confer upon special tribunals of their own, the Federal courts cannot by reason of it take any additional powers which are not judicial.

In Rees v. City of Watertown, from which we have already quoted, the power asserted by the decree was claimed by counsel, but was rejected by the court. "Assume," said the court, "that the plaintiff is entitled to the payment of his judgment, and that the defendant neglects its duty in refusing to raise the amount by taxation, it does not follow that this court may order the amount to be made from the private estate of one of its citizens. This summary proceeding would involve a violation of the rights of the latter. He has never been heard in court. He has had no opportunity to establish a defense to the debt itself, or if the judgment is valid, to show that his property is not liable to its payment. It is well settled that legislativo exemptions from taxation are valid, that such exemptions may be perpetual in their duration, and that they are, in some cases, beyond legislative interference. The proceeding supposed would violate the fundamental principle contained in chapter twentyninth of Magna Charta, and embodied in the Constitution of the United States, that no man shall be deprived of his property without due process of law; that is, he must be served with notice of the proceeding, and have a day in court to make his defense." 19 Wall. 122.

It is pressed upon us with great earnestness by counsel, that unless Federal courts come to the aid of the creditors of Memphis, and enforce, through its own officers, the taxes levied before tho repeal of its charter, they will be remediless. But the conclusion does not follow. The taxes levied pursuant to writs of mandamus issued by the Circuit Court are still to be collected, the agency only for their collection being changed. The receiver appointed by the governor has taken the place of the collecting officers of the city. The funds received by him upon the special taxes thus levied cannot be appropriated to any other uses. The receiver, and any other agent of the State for the collection, can be compelled by the court, equally as the former collecting officers of the city, to proceed with the collection of such taxes by the sale of property or by suit, or in any other way authorized by law, and to

apply the proceeds upon the judgments. If relief is not thus afforded to the creditors, they must appeal to the Legislature. We cannot presume that the appeal will be in vain. We cannot say that on a proper representation they will not receive favorable action.

It is certainly of the highest importance to the people of every State that it should make provision, not merely for the payment of its own indebtedness, but for the payment of the indebtedness of its different municipalities. Hesitation to do this is weakness; refusal to do it is dishonor. Infidelity to engagements causes loss of character to the individual; it entails reproach upon the State.

The Federal judiciary has never failed, so far as it was in its power, to compel obedience to all lawful contracts, whether of the individual, or of the municipality or of the State. It has unhesitatingly brushed asido all legislation of the State impairing their obligation. When a tax has been authorized by law to meet them, it has compelled the officers of assessment to proceed and levy the tax, and the officers of collection to proceed and collect it, and apply the proceeds. In some instances, where the tax was the inducement and consideration of the contract, all attempts at its repeal have been held invalid. But this has been the limit of its power. It cannot make laws when the State refuses to pass them. It is itself but the servant of the law. If the State will not levy a tax, or provide for one, the Federal judiciary cannot assume the legislative power of the State and proceed to levy the tax. If the State has provided incompetent officers of collection, the Federal judiciary cannot remove them and put others more competent in their place. If the State appoints no officers of collection, the Federal judiciary cannot assume to itself that duty. It cannot take upon itself to supply the defects and omissions of State legislation. It would ill perform the duties assigned to it by assuming power properly belonging to the legislative department of the State. Strong, Swayne and Harlan, J.J., dissented from the fourth, sixth, seventh and eighth propositions above set forth.

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT,*

CARRIER - LIABILITY OF SHIP OWNER FOR SHRINKAGE OF CARGO BY REASON OF NATURE OF STOCK.- A number of bags of cutch were received on board a vessel at Calcutta, during the months of January and February, for shipment to Boston, and bills of lading were delivered for the same, containing the usual exception of the perils of the sea, and the memorandum, "weights and contents unknown." The cutch, when received, had become somewhat softened by a voyage, from Singapore, of 1,500 miles, and was therefore rebagged at Calcutta. It was stowed in the customary manner on the bottom of the ship's hold, but piled in tiers somewhat higher than usual. The ship sailed from Calcutta in March, and reached Boston in July. Every precaution was taken during the voyage to diminish the heat of the hold by ventilation, and upon reaching Boston, the bags were hoisted out of the hold and delivered on the wharf, in the usual manner by means of slings. Held, under the circumstances of the case, that a shrinkage of about 5 per cent of the weight of the cutch was owing to the inherent nature and quality of the article itself, and not to any negligence of the owners of the ship. The authorities are numerous and conclusive that the ship owner is not responsible for loss to goods arising under such circumstances, whether in his relation as common carrier or upon bills of lading in the form given in this case. Appearing in 3d Federal Reporter.

Nelson v. Woodruff, 1 Black, 156; Brig Coleaberg, id. 170; Clark v. Barnwell, 12 How. 272; Lamb v. Parkman, 1 Sprague, 343; The Invincible, 1 Low. 225; Libby v. Gage, 14 Allen, 261. United States District Court, Massachusetts, July, 1880. Janney v. Tudor Company. Opinion by Nelson, D. J.

same.

LIABILITY BEYOND ROUTE. - In the absence of

a special contract the liability of a common carrier does not extend beyond the terminus of his own route. Such contract is not established, however, by proof that the carrier accepted the goods with knowledge of their destination, and named the through rate for the Railroad Co. v. Manufacturing Co., 15 Wall. 318; Railroad Co. v. Pratt, 22 id. 123; Darling v. Railroad Co., 11 Allen, 295; Nutting v. Railroad Co., 1 Gray, 502; Burroughs v. Railroad Co., 100 Mass. 26; Railroad Co. v. Berry, 68 Penn. St. 272; Root v. Railroad Co., 45 N. Y. 524; Babcock v. Railroad Co., 49 id. 491; Convers v. Trans. Co., 33 Conn. 166; Perkins v. Railroad Co., 47 Me. 573; Bank v. Trans. Co., 23 Vt. 209; Bimtuall v. Railroad Co., 32 id. 673; Express Co. v. Rush, 24 Ind. 403; McMillan v. Railroad Co., 10 Mich. 119; Hoagland v. Railroad Co., 39 Mo. 451; Coates v. Express Co., 45 id. 238. United States Circuit Court, E. D. Missouri, Oct. 1, 1880. Stewart v. Terre Haute & Indianapolis Railroad Co. Opinion by McCrary, C. J.

CORPORATION-SUBSCRIPTION TO STOCK-PAYMENT. -A corporation whose charter and by-laws requiro each subscriber to its capital stock to pay a given percentage of his subscription in cash at the time of subscribing, cannot enforce payment of a subscription where the required cash payment has not been made. Cases referred to, Pearce v. M. & I. R. Co., 21 How. 441; Black R. & U. R. Co. v. Clark, 25 N. Y. 208; Crocker v. Crane, 21 Wend. 211; Beach v. Smith, 30 N. Y. 116; Hibernia Turnpike Co. v. Henderson, 8 S. & R. 217; Jenkins v. Union Turnpike Co., 1 Cai. Cas. 86; Highland Turnpike Co. v. McKean, 11 Johns. 98; Sturgis v. Stetson, 1 Biss. 246; Fosdick v. Sturgis, id. 255. United States District Court, Arkansas, July, 1880. State Insurance Co. v. Redmond. Opinion by Caldwell, D. J.

MARITIME LAW ADMIRALTY JURISDICTION.—(1) A pilot is responsible to the owner of a vessel for negligence or default in the performance of his duty. When a pilot takes charge of a vessel at sea, to bring her into port, his duty is to stay by her, unless discharged, till she reaches her destination or some place of safety. A discharge, however, will not avail him, when the same has been procured by an untrue statement, though with no wrongful intent, in respect to a matter touching the safety of the ship, on which the master had a right to rely. (2) When damage results from such omission of duty, the pilot is guilty of a marine tort, and is subject for the same to the jurisdiction of a court of admiralty. Cases referred to, etc.: 1 Parsons on Sh. & Adm. 118, 119; 3 Kent's Com. 176; The China, 7 Wall. 53; The Alexandria, L. R., 3 Ad. & Ec. 574; The Urania, 10 W. R. 97; Hobart v. Drogau, 10 Pet. 108. United States District Court, S. D. New York, July, 1880. Sideracadi v. Mapes. Opinion by Choate, D. J.

LIABILITY AND DUTY OF PILOT

PATENT-WARRANTY UPON SALE OF-AFTER-ACQUIRED TITLE. The sale of a patent right creates an implied warranty as to title. Such warranty grows out of the sale, and not out of the form of the conveyance. In such case the warranty draws to it any after-acquired right or title of the warrantor. 2 Bl. Com. 451; Long on Sales, 203; Defreeze v. Trumper, 1 Johns. 274; Coolidge v. Brigham, 1 Metc. 547; Heermance v. Vernoy, 6 Johns. 5; Hannum v. Richardson, 48 Vt. 508; Medina v. Stoughton, 1 Salk. 201; Pasley v.

Freeman, 3 T. R. 51; Cammeyer v. Newton, 94 U. S. 225; Pierce v. Woodward, 6 Pick. 206; Chambers v. Critchley, 33 Beav. 374 United States Circuit Court,

S. D. New York, July, 1880. Faulks v. Kamp. Opinion by Wheeler, D. J.

PRACTICE E-SERVICE OF PROCESS BY FRAUD.-Where a defendant, residing in another district, is enticed and induced to come into the district where the plaintiff resides by the false representations or deceptive contrivances of the plaintiff, or of any one acting in his behalf, for the purpose of serving legal process upon him, and the same is served through such improper means, such service is illegal, and ought to be set aside, and the process dismissed. Union Sugar Refinery v. Mathiesson, 2 Cliff. 304-309; Hevener v. Heist, 30 Leg. Int. 46. United States Circuit Court, New Jersey, October 18, 1880. Steiger v. Bonn. Opinion by Nixon, D. J.

REMOVAL OF CAUSE-STATUTE OF 1875-PROBATE PROCEEDING.- By the law of Wisconsin, at the time this action was begun, jurisdiction to establish lost wills was vested in the Circuit Courts of the State and not in the probate courts. In an action brought in the State court by an alleged legatee under a lost will, against the sole heir at law, to establish the will, and removed to the Federal court under the removal act of 1875, the parties being citizens of different States, held, that although the Federal court might not have jurisdiction of such an action, if originally brought in that court, the case was removable under the act, and that after it was transferred to the Federal court, that court had jurisdiction of the same. Cases referred to: Armstrong v. Lear, 12 Wheat. 169; Tarver v. Tarver, 9 Pet. 174, Gaines v. Chew, 2 How. 619; Fouvergne v. New Orleans, 18 id. 470; Gaines v. New Orleans, 6 Wall. 642, 703; Broderick's Will, 21 id. 503; Gaines v. Fuentes, 92 U. S. 10. United States Circuit Court, E. D. Wisconsin, October 18, 1880. Southworth v. Adams. Opinion by Dyer, D. J.

UNITED STATES SUPREME COURT

ABSTRACT.

CORPORATION-WHAT CONSTITUTES SUBSCRIPTION TO STOCK.-Defendant, in 1871, was requested by R. the agent of an insurance company, to subscribe for its stock. In consequence of the inducements offered, he subscribed the paper and delivered it to the agent. "The Great Western Insurance Company. [$200.] Capital stock $500,000, with liberty to increase to $5,000,000. Stock non-assessable. Organized July 20th, 1857, under act of Legislature approved March 4th, 1857. Know all men by these presents, that for and in consideration of ten shares of the capital stock of the Great Western Insurance Company of Chicago, Ill., received by me, I am held and firmly bound, and agree to pay the Great Western Insurance Company of Chicago the sum of two hundred dollars in installments, as follows: twenty-five per cent thereof upon receipt of stock certificate, twenty-five per cent in three months from date hereof, twenty-five per cent six months from date hereof, twenty-five per cent nine months from date, with interest 10 per cent after due." At the time he paid the agent $25. No certificate of stock was ever given to him and he demanded none, and paid no assessments. The company became bankrupt. In an action by the assignee in bankruptcy against defendant as a stockholder, held that he was such and liable for the amount of stock set forth in the paper signed by him. Upton v. Tribilcock, 91 U. S. 45; Webster v. Upton, id. 65. Judgment of U. S. Circ. Ct. Iowa, affirmed. Hawley, plaintiff in error, v. Upton. Opinion by Waite, C. J. [Decided Dec. 13, 1880.]

MANDAMUS-DISTRICT COLUMBIA SUPREME COURT MAY ISSUE TO SECRETARY OF INTERIOR TO COMPEL ISSUE OF PATENT FOR LANDS WHEN IT WILL ISSUE.

The Supreme Court of the District of Columbia is authorized to issue the writ of mandamus as an original process in cases where, by the principles of the common law, the party is entitled to it. (2) When a patent to a citizen for a part of the public lands has been regularly signed by the president, and sealed with the seal of the government, countersigned by the recorder and duly recorded, the right to its possession by the grantee is perfect, and a writ of mandamus will lie to the officer in whose possession it is, to compel its delivery. In the progress of the proceedings to acquire,

under the laws of the United States, a title to the public lands, there must, in all cases where the claimant is successful, come a period when the power of the executive officers, who constitute the land department, over those proceedings ceases. That period is precisely when the last official act has been performed which is necessary to transfer the title from the government to the citizen. Title by patent from the United States is title by record, and delivery of the instrument to the grantee is not essential to pass the title, as in conveyances by private persons. Therefore, when the officers, whose action is rendered by the laws necessary to vest the title in the claimant, have decided in his favor, and the patent has been duly signed, sealed, countersigned and recorded, the title of the land has passed to the grantee, and there remains nothing more to be done by the land office but the ministerial duty of delivering the instrument, which can be enforced by mandamus. An acceptance of the grant will, in such case, be presumed from the efforts of the grantee to secure the favorable action of the department, and especially from the demand for possession of the pateut. Right of writ of mandamus to the Secretary of the Interior sustained. Cases referred to McIntire v. Wood, 7 Cranch, 506; McClung v. Siliman, 6 Wheat. 599; Kendall v. United States, 12 Pet. 618; Kendall v. Stokes, 4 Miss. 98; Decatur v. Paulding, 14 Pet. 497; Comr. v. Whiteley, 4 Wall. 534; United States v. Stone, 2 id. 525; Johnson v. Towsley, 13 Wall. 72; Marbury v. Madison, 1 Cranch, 137; 2 Bl. Com., 346; Shepherd's Touchstone, 54: Coke's Littleton, 266b; 3 Washb. on Real Prop. 308; Church v. Gilman, 15 Wend. 656; Butter v. Baker, 3 Coke, 26b; Warren v. Levitt, 11 Fost. (N. H.) 340; Hatch v. Hatch, 9 Mass. 307; Green v. Liter, 8 Cranch, 229; Ex parte Kuhlman, 3 Rich. Eq. 257; Downer v. Palmer, 31 Cal. 513; Leroy v. Jamison, 3 Sawyer, 369; Case of Mutelle, 3 Opin. Atty.-Gen. 654. Judgment of Sup. Ct. of District of Columbia, reversed. United States ex rel. McBride, plaintiff in error, v. Schurz. Opinion by Miller, J.; Waite, C. J., and Swayne, J., dissented.

[Decided Dec. 13, 1880.]

ILLINOIS SUPREME COURT ABSTRACT. NOVEMBER, 1880.

EQUITABLE ACTION CONTRACT IN RELATION TO

FURNISHING MEDICAL DIPLOMAS-RESTRAINING USE

OF FICTITIOUS NAME — PUBLIC POLICY.-An agreement to admit a person into a medical institute and assist in the graduation and granting to him a diploma, in consideration of such person abandoning a fictitious name nearly the same as that of the other party, a member of the faculty, is of such doubtful propriety that equity will not lend its aid to enforce it. The granting of diplomas to students in colleges ought not to be made the subject of private contracts with individual members of the faculty for personal advantage to themselves. A bill by Henry Olin, who was a physician treating diseases of the eye and ear in the city of

Chicago, charged that the defendant, Bates, had assumed the fictitious name of Andrew G., or A. G. Olin, and was engaged in practicing his profession in the same city, whose business was treating venereal diseases, that in such name ho advertised extensively both in the newspapers and by publications and pamphlets largely circulated by which means the complainant's reputation was injured, many taking him for the defendant. It appeared that defendant had been practicing in the city under the same name before the complainant came there; the bill sought to enjoin the defendant from the use of the name Olin. On the hearing the bill was dismissed. Held, that the bill was properly dismissed for want of equity. Olin v. Bates. Opinion by Scott, J.

NEGLIGENCE-CONTRIBUTORY, OF PARENTS OF MINOR

CHILD MUNICIPAL CORPORATION-DUTY AS ΤΟ

GUARDS TO SWING-BRIDGES.-(1) When a child only four years old left his parents' home without their knowledge or consent, his father being absent engaged in his usual labor, and his mother being sick and confined to her room, and while thus away from home playing with other boys he was personally injured, and the proof showed that the mother as soon as she discovered the child's absence had search made for him, and that the family were dependent upon the father's daily labor for support, it was held that a finding of no negligence on the part of the parents of the child was proper and correct. (2) It is the duty of a municipal corporation to keep and maintain bridges within the corporate limits in a reasonably safe condition, but it is not required by law to so construct its streets and bridges that accidents are impossible to persons using them. Persons using them must exercise reasonable care for their personal safety. When a swing bridge in a city is reasonably safe for persons using ordinary care, and a child without the fault of its parents with other children playing upon and about such bridge is injured, while the bridge is being handled with the requisite and usual care and skill, no recovery can be had and the injury must be attributed to accident. The law does not make it the duty of corporate authorities to so construct such bridges as to make them safe for children to play around or upon. Hence they are not bound to place guards or mechanical contrivances to keep children off the same. Gavin v. City of Chicago. Opinion by Scott, J.

VERMONT SUPREME COURT ABSTRACT.*

CONSTITUTIONAL LAW-STATE INSOLVENT LAW ENACTED WHILE BANKRUPT LAW IN FORCE --- EFFECT OF REPEAL OF BANKRUPT LAW.-The State Legislature, while the National bankrupt act was in force, passed an act providing for the equal distribution of the estates of insolvent debtors. Held, that the State act, although in a degree dormant during the existence of the National act, took such vitality as was not inconsistent with that act, and was not void. After the repeal of the National act, creditors of an insolvent debtor brought actions against him to recover debts incurred while that act was in force and before the State act was passed, and procured his property to be attached therein. Within sixty days after such attachments were made, the debtor was adjudged insolvent, and afterward an assignee was appointed, and the debtor's property was conveyed to the assignee, who demanded it of the attaching officer. Held, that as the right to attach was not a part of the contract, but a right to a remedy for the breach of it, the Legislature might provide that in case a debtor had not sufficient property to pay all his debts it should be equitably dis

To appear in 52 Vermont Reports.

tributed among all his creditors, without violating that provision of the Constitution that forbids the passing of a law "impairing the obligation of contracts;" and that therefore the assignee was entitled to possession of the property. Held, also, that at the time the State act was passed the creditors had no absolute priority that they could assert by attachment; for that under the National bankrupt act, which was in force when the debts were incurred, they would have been bound, in case of bankruptcy of the debtors, to release their attachments and surrender the property for distribution. Ogden v. Saunders, 12 Wheat. 213; Abbott v. Kimball, 19 Vt. 551; Harrison v. Sterry, 5 Cranch, 290; Stocking v. Hunt, 3 Denio, 274; Morse v. Goold, 11 N. Y. 281; Edwards v. Kearzey, 6 Otto, 595, 610; Bigelow v. Pritchard, 21 Pick. 169; Stone v. Tibbetts, 26 Me. 112; Kilborn v. Lyman, 6 Metc. 299; Ward v. Proctor, 7 id. 318. Baldwin v. Buswell. Opinion by Redfield, J. PAYMENT CREDITOR ASSUMING TO DEAL WITH MONEY OF DEBTOR.-Defendant, having bought cattle of plaintiff, offered him in payment a check greater than the price thereof, but plaintiff being unable to give defendant money for the difference, it was agreed that defendant should take the check to A., to be sent to a bank to be cashed, and defendant took it to A. accordingly, and directed A. to pay plaintiff the price of the cattle, which A. agreed to do. Defendant afterward told plaintiff what he had done, and plaintiff said it was "all right." A., in sending the check to the bank, directed that it should be placed to his credit. Afterward plaintiff called on A. for the money, but not needing it, agreed with A. that A. should keep it thirty days. Held, that as plaintiff assumed to deal with the money, he had in legal effect received payment of defendant, and that it made no difference that the check was put to A.'s credit. Goochie v. Brock. Opinion by Veazey, J.

GIFT OF BANK

GIFT DONATIO CAUSA MORTIS DEPOSIT BY DELIVERY OF BOOK—(1) A depositor in a bank, intending to give M. the deposit as a donatio causa mortis, delivered to M. his bank-book during his last illness. Held, sufficient to constitute a donatio causa mortis. The court say: It has been repeatedly held that a deposit in a savings bank may be the subject of a valid donatio causa mortis, as well as of a gift inter vivos; and that such a gift may be proyed by the delivery of the bank-book to the donee, or to a third person for the donee, accompanied by an assignment, Kingman v. Perkins, 105 Mass. 111; Foss v. Lowell Five Cents Savings Bank, 111 id. 285; Kimball v. Leland, 110 id. 325; Sheady v. Roach, 124 id. 472; Davis v. Ney, 125 id. 590. We have not had the question presented to us until now, whether the delivery of the book without a written assignment or order is sufficient to constitute a valid gift causa mortis or inter vivos. The question has, however, been decided in other jurisdictions in the affirmative. Hill v. Stevenson, 63 Me. 364; Tillinghast v. Wheaton, 8 R. I. 536; Camp's Appeal, 36 Conn. 88; Penfield v. Thayer, 2 E. D. Smith, 305. (2) The estate of the depositor was largely indebted to M., but to no one else, and it was claimed that the gift made the estate insolvent, and was therefore void as in fraud of creditors. Held, that it is true that a gift causa mortis cannot avail against creditors. M., as donce causa mortis, therefore, took his title to the bank deposit subject to the right of the administrator to reclaim it if required for the payment of debts. Mitchell v. Pease, 7 Cush. 350; Chase v. Redding, 13 Gray 418. But M. is the only person in