contains matter which can be considered only at equity. If the sole defendant is not liable to pay the notes, there is no difficulty in an examination by a court of law, and it is not necessary to resort to the form or mode of relief peculiar to a court of equity. There is quite a large class of cases pertaining to the discharge of sureties, upon the principles of which cases this defense rests, in which courts of law take cognizance of defenses which had their origin in the courts of equity, but which are administered by courts of law, without disregarding the inherent distinctions between the two courts. "In general," said Chief Justice SHAW, in Carpenter v. King, 9 Metc. 511, "that which would afford a surety a remedy in equity against his creditor, by injunction, is a good defense at law when suit is against the surety alone." Many of the earlier distinctions in regard to the rights of sureties to defend at law do not now seem to be regarded. The cases upon this point are collected in 2 Amer. Lead. Cas. 448.

If the defense is purely equitable, and the remedy, if any, must be administered by a court of equity, the defendant should have proceeded according to the rules regulating proceedings in equity in the courts of the United States. Burnes v. Scott, 117 U. S. 582, 6 Sup. Ct. Rep. 865. Upon the theory that it is a defense which can be examined in a court of law, and confining myself exclusively to the question as it relates to the rights of an indorsee and holder of a negotiable instrument, who took the note or bill for value, in ignorance that it was accommodation paper, I am still of the opinion that the defense is inconsistent with the principles which have generally been considered as settled in regard to the rights of bona fide holders of negotiable paper, and, if the accommodation maker permits the note to go into the hands of bona fide holders, for value, without knowledge of the relations between the maker and payee, that he has abandoned all right to enforce his equity as against the ignorant holder. "He who makes a note or accepts a bill for the accommodation of another virtually authorizes those who take the instrument subsequently to make such terms or arrangements with the drawer or indorsers as may be most conducive to their mutual interests, and cannot revoke the authority thus given to the injury of those who have acted upon it." 2 Daniel, Neg. Inst. § 1336-1338; Bank v. Rathbone, 26 Vt. 19.

I do not think it advisable to make an extended argument upon this question, which is an important one, and upon which there is a conflict of opinion, because this case will probably go to the supreme court, where the question will be authoritatively settled. Meantime, the numerous conflicting authorities will be found collected in 2 Daniel, Neg. Inst. 316-321; 1 Pars. Bills & N. 233; and In re Goodwin, 5 Diil. 140. It may be added that the only decisions of the court of appeals of New York which is directly upon the point in question in regard to negotiable paper, is against the validity of the defense. Hoge v. Lansing, 35 N. Y. 136.

The motion is denied, and the stay of execution is vacated.

HARDENBERG v. RAY et al.

(Circuit Court, D. Oregon. January 23, 1888.)

1, WILLS RESIDUARY LEGACY-AFTER-ACQUIRED PROPERTY.

A residuary devise of real property, under the Oregon statute of wills, (sec tion 1,) may and will pass after-acquired property, if such appears to have been the intention of the testator.

2. SAME.

H., an unmarried man living in Portland, made his will, and, after making two specific devises of real property situate in New York, devised and bequeathed to his sister Ellen E. Ray all the rest of his lands wherever situate and all his "personal property and estate of whatever kind or nature," after which he purchased other real property, of which he died seized, leaving brothers, including the plaintiff, not mentioned in his will. Held, that the intention of the testator to make his sister Ellen his residuary devisee was manifest, and that she took the after-acquired property under the devise in the will.

(Syllabus by the Court.)

At Law. Action to recover possession of real property.
F. A. E. Starr and Benton Killin, for plaintiff.

James K. Kelly, C. E. S. Wood, George H. Williams, and Robert L. McKee, for defendants.

DEADY, J. This action is brought to recover possession of the south half of lots numbered 2 and 7, in block 39, of Portland, according to the plat thereof, alleged to be worth over $5,000.

The plaintiff is a citizen of the state of New York. The action was brought against Charles Sliter, J. C. Miller, and W. H. West, the persons in the possession of the premises, who answered that they were in possession only as tenants of Thomas L. Ray, Rachel L. Ray, H. E. Ray, Mary E. Arbuckle, John De Witt Ray, and Sarah A. Ray, giving their residence, and asking that they might be substituted as defendants in the action.

A defendant may answer that he is in possession only as the tenant of another, naming him and his place of residence, but it is both impertinent and improper to go further and ask that such person be made defendant. When he declines the controversy, as he may do, he should not further meddle with it. See McDonald v. Cooper, 32 Fed. Rep. 745.

These parties were afterwards made defendants, in place of the tenants, on their own motion, and answered, admitting they were all citizens of Oregon, excepting John De Witt Ray, who is a citizen of Illinois, and Sarah A. Ray, who is a citizen of New York.

It is alleged in the complaint that the plaintiff is the owner in fee-simple of an undivided one-third of the premises, and entitled to the immediate possession thereof. The answer contains a denial of the plaintiff's ownership of any interest in the premises, or his right to the possession thereof; and also a defense to the effect that the defendants are the own

ers in fee-simple of the premises. The reply contains a denial of the defendant's ownership of the premises except the undivided one-sixth thereof.

By a stipulation duly filed the parties consented that the cause might be tried by the court without the intervention of a jury.

It was also stipulated that a certain agreed statement might be used on the trial as evidence, from which the following facts appear:

On May 15, 1872, Peter De Witt Hardenberg made and published his last will and testament, whereby he devised and bequeathed (1) to Thomas H. and Jacob H. Tremper, of Ulster county, New York, and Thomas L. and John De Witt Ray, of Belvidere, Illinois, all his interest in a certain farm in said county; (2) to Catherine L. Tremper, of said county, all his lands lying therein; and (3) to Ellen E. Ray, of said Belvidere, "all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the state of Oregon, or elsewhere, except as aforesaid, also all my personal property and estate of whatever kind

or nature."

After the death of the testator-the time of which is not stated-this will was duly admitted to probate, and, as such, is now in full force and effect.

On January 9, 1882, the testator purchased and became the owner in fee-simple of the premises in controversy, and so continued until his death.

At his death the testator left the following heirs: T. Rutzen, Herman R. and Philip L. Hardenberg, his brothers; Catherine L. Tremper, his sister; Mary E. Arbuckle, Samuel A., Hylah E., Rachel L., Thomas L. and John De Witt Ray, the children and only heirs of Ellen E. Ray, foresaid, who died in December, 1873; and Rachel F. Lefevre, the *aughter and only heir of a sister of the testator's, before that time de⚫eased.

When this action was commenced the defendants Mary E. Arbuckle, Thomas L., Rachel L., and Hylah E. Ray were citizens of the state of Oregon, the defendant, John De Witt Ray was a citizen of Illinois, and Sarah A. Ray was a citizen of New York.

On the trial, the plaintiff proved that, prior to the commencement of the action, he demanded of the defendants to be let into possession with them, which they refused; and that, on September 24, 1885, Rachel F. Lefevre, for the consideration of one dollar, conveyed and assigned all her interest in the estate of the deceased to Herman R. Hardenberg, the plaintiff, while the defendants proved that said Rachel F., on November 3, 1886, in consideration of $200, released and quitclaimed to them all. her interest in the premises in controversy. It was also proved that the testator owned other valuable real property in Portland, at the time of making the will, of which he died seized.

It is objected in limine, that the court is without jurisdiction of the case, because two of the present defendants-John De Witt Ray and Sarah A. Ray-are not citizens of Oregon, but of Illinois and New York, respectively. If this objection is well taken, it only goes to the jurisdic

tion of the court over these two defendants. The parties being tenants in common of the property, the plaintiff has a separate cause of action against each of them, in respect to the ouster or deprivation of possession, on which he may sue them separately or jointly. Code Civil Proc. § 91.

Prior to the judiciary act of March 3, 1887, (24 St. 552,) a person could only be sued in a circuit court in the district whereof he was an inhabitant, or in which he might be found at the commencement of the action. But it has always been held that this exemption is the personal privilege of the defendant, which he may waive and does waive by a voluntary appearance. Dunlap v. Stetson, 4 Mason, 360; Toland v. Sprague, 12 Pet. 331; Kendall v. U. S., Id. 623; Herndon v. Ridgway, 17 How. 425.

By the act of 1887 a person may be sued in a circuit court in the district in which he or the plaintiff resides; but he can no longer be sued in any district in which he may be found. But I see no reason why the old rule of construction should not apply, so that if a party defendant voluntarily appears in an action brought in a district other than that in which he or the plaintiff resides, he may do so, and the court thereby acquire jurisdiction of his person. In such case, the plaintiff and John De Witt Ray, being citizens of different states and the latter having voluntarily appeared in the action, the court would acquire jurisdiction.

But as to Sarah A. Ray this suggestion is not applicable. She is a citizen of the same state with the plaintiff, and the court has not and cannot acquire jurisdiction over a controversy between such parties. Where the jurisdiction of the court depends on the diverse citizenship of the parties, and such diversity does not exist, consent cannot confer it. But I do not think this objection well taken as to either of these parties on another ground.

When the summons in this action was served on the original defendants, Sliter, Miller, and West,-the persons in possession, the court acquired jurisdiction of the controversy and the parties to the action, and no subsequent change in the citizenship or personnel thereof can affect such jurisdiction. As was said by Mr. Chief Justice MARSHALL in Mollan v. Torrance, 9 Wheat. 539: "The jurisdiction of the court depends on the state of things at the time of the action brought, and, after vesting, it cannot be ousted by subsequent events." To the same effect is the ruling of the court in Dunn v. Clarke, 8 Pet. 1; Clarke v. Mathewson, 12 Pet. 164; Whyte v. Gibbes, 20 How. 542. For instance, it is held in Clarke v. Mathewson, supra, that where the plaintiff, a citizen of Connecticut, died pending a suit in the circuit court for the District of Rhode Island against citizens of the latter state, his administrator, also a citizen of Rhode Island, could continue the suit. In delivering the opinion of the court, Mr. Justice STRONG said:

"The parties to the original suit were citizens of different states, and the jurisdiction of the court completely attached to the controversy; having so attached, it could not be divested by any subsequent events, and the court had a rightful authority to proceed to a final determination of it. If, after the Commencement of the suit, the original plaintiff had removed into, and be

come a citizen of, Rhode Island, the jurisdiction over the cause would not have been divested by such change of domicile."

The change of parties defendant in this case is allowed for the benefit of the landlord, the present defendants, and was made at their instance. The jurisdiction of the court had completely attached before they were substituted for the original defendants, and so far as the question of jurisdiction is concerned, the parties to the action are not changed, and they stand in it as the mere representatives or substitutes of such defendants, the same as an administrator is of his intestate.

The objection to the jurisdiction is not sustained.

The next question in the case is whether the property in controversy, having been acquired by the testator after the making of his will, passes thereby to the residuary devisee or descends to his heirs.

The contention of the plaintiff is that, under the Oregon statute, the will speaks from the making thereof, and not from the death of the testator, and, therefore, as to after-acquired property, he is deemed to die intestate, and the same goes to his heirs; and even admitting that the testator had the power under the statute to devise all the lands of which he might die seized by a will anterior in date to the acquisition thereof, such after-acquired estate would not pass thereby, unless the intention that it should was plainly expressed in the will.

On the contrary, the defendants contend that the devise to their ancestor Ellen E. Ray should be held to speak from the death of the testator, and thus include all the property not otherwise disposed of, whereof he died seized; and that it is manifest from the language of the devise and the circumstances of the testator that such was his intention.

The Oregon statute of wills was passed at the first session of the territorial legislature, on September 26, 1849, (Hamilton Laws, 274, 1850-1;) and was taken from the Revised Statutes of Missouri.

The "commissioners to prepare a code of laws for the territory," appointed under the act of January 12, 1853, (Sess. Laws 57,) reported the same for adoption, with some unimportant alterations, and it was thus re-enacted on December 15, 1853, (Code 1853-4, p. 354,) and took effect May 1, 1854. By the repealing act, supplemental to the Code of Civil Procedure, passed October 17, 1862, (Sess. Laws 124,) certain sections of the act relating to procedure, namely, sections 6, 15 to 23, and 27 to 34 inclusive, and 49 and 52, were repealed, because the matter was included in said Code, then just passed.

Section 1 of the act gives the power to make a will. It reads as follows: "That every person of twenty-one years of age and upwards, of sound mind, may, by last will, devise all his estate, real and personal, saving to the widow her dower."

The colonists on the Atlantic coast brought with them from England the common law, and, with some modifications, mostly political, adopted it as the basis of their social fabric and jurisprudence. Two hundred years later their descendants brought this "Code of matured ethics and enlarged civil wisdom" (1 Kent. Comm. 342) across the plains to Oregon, where, on June 27, 1844, it was formally declared by the legislature of