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44 Me. 441. Grant that and still it is a mere presumption of fact which may be rebutted and controlled by parol proof that it was not there when the note was delivered, or that it was made at a subsequent date. Essex Co. v. Edmunds, 12 Gray, 278.

Third person indorsing a negotiable promissory note before the payee, and before it is delivered to take effect, cannot be held as first indorsers, for the reason that they are not payees, and no party but the payee of the note can be the first indorser and put the instrument in circulation as a commercial negotiable security. Such a third party may, if he chooses, take upon himself the limited obligation of a second indorser, but if he desire to do so he must employ proper terms to signify that intention, the rule being that a blank indorsement supposes that there are no such terms employed, and that he is liable either as promisor or guarantor.

Blank indorsements may be filled up to express the legal contract, and the true commercial rule is that when the blank is filled the instrument shall have the character of a written instrument and not depend on parol proof to give it effect nor be subject to be altered or contradicted by parol proof. Indorsements of the kind are or may be valid, as the law presumes that such an indorser intended to be liable in some form. It does not charge him as indorser unless the terms employed are proper to express such an intent; but if any one not the payee of a negotiable note, or in the case of a note not negotiable, if any party writes his name on the back of the note, at or sufficiently near the time it is made, his signature binds him in the same way as if it was written on the face of the note and below that of the maker; that is to say, he is held as a joint maker or as a joint and several maker, according to the form of the note. Cases also arise where the signature of a third person is subsequent to the making and delivery of the note, and in that case the third person, as to the payee, is not a maker, but a guarantor, and his promise is void if without consideration, but the consideration may be the original consideration if the note was received at his request and upon his promise to guarantee the same, or if the note was made at his request and for his benefit. 1 Pars. on Cont. (6th ed.) 244.

Judge Story says that the interpretation ought to be just such as carries into effect the true intention of the parties, which may be made out by parol proof of the facts and circumstances which took place at the time of the transaction. If the party intended at the time to be bound only as guarantor of the maker, he shall not be an original promisor, and if he intended to be liable only as a second indorser, he shall never be held to the payee as first indorser. Story on Prom. Notes, § 479.

Where the evidence on these points is doubtful, obscure, or totally wanting, courts of law adopt rules of interpretation as furnishing presumptions as to the actual intention of the parties. Difficulty in that regard can never arise where the indorsement is special if it contains words proper to show that the party intended to be liable only as second indorser. Where the indorsement is in blank, if made before the payee, the liability must be either as an original promisor or guarantor, and parol proof is admissible to show whether the indorsement was made before the indorsement of the payee and before the instrument was delivered to take effect, or after the payee had become the holder of the same; and if before, then the party

so indorsing the note may be charged as an original promisor, but if after the payee became the holder, then such a party can only be held as guarantor, unless the terms of the indorsement show that he intended to be liable only as second indorser, in which event he is entitled to the privileges accorded to such an indorser by the commercial law.

Whether regarded as a second indorser or an original promisor, it is not necessary to allege or prove any other than the original consideration, but if it be attempted to charge the party as a guarantor, a distinct consideration must appear. Essex Co. v. Edmunds, 12 Gray, 277; Brewster v. Silence, 4 Seld. 207.

Viewed in the light of these suggestions it is clear that the first assignment of error must be overruled.

2. Territorial courts are not courts of the United States within the meaning of the constitution, as appears by all the authorities. Clinton v. Englebrecht, 13 Wall. 447; Hornbuckle v. Toombs, 18 id. 653.

Witnesses in civil cases cannot be excluded in the courts of the United States because he or she is a party to, or interested in, the issue tried, but the provision has no application in the courts of a territory where a different rule prevails. 13 Stats. at Large, 351; Bowman v. Noyes, 12 N. H. 305; Bridges v. Armour, 5 How. 94: Bailey v. Knapp, 7 Harris, 193; Halz v. Snyder, 2 Casey, 512.

Suppose that is so, then the two defendants called as witnesses were rightly rejected as witnesses. 13 Stats. at Large, 351.

Special reference is made to the territorial act of the 11th of February, 1870, as inconsistent with the ruling of the court, but the act in question contains the following proviso: that the act "shall not apply to cases pending at the passage thereof in the district courts, on appeals from justices of the peace, nor to cases at issue at the passage of the same in the district and probate courts." Sufficient appears to show that the case before the court was at issue in the court below one whole year before the passage of that act.

Tested by these considerations it is clear that the second assignment of error must also be overruled, and that there is no error in the record.

Judgment affirmed.

NOTES OF RECENT DICISIONS. Bank stock: taxation of.- Where there is a valid law imposing tax for the State upon hank stock, there will be no judicial interference in its collection on account of informalities or irregularities in the return or assessment. Sup. Ct., Georgia, Oct. 24, 1877. Stockholders First Nat. Bank Americus v. Peer.

Contract: void as against public policy.-The manager of a corporation agreed if plaintiff would purchase certain shares of the capital stock of such corporation held by one F., the corporation would give plaintiff employment at an annual salary. Held, that the contract was void as against public policy. Sup. Jud. Ct., Massachusetts, Oct., 1877. Noyes v. Marsh.

False pretenses: what does not constitute: must relate to past or present fact.- A pretense which is false when made, but true by the act of the person making the same, when the prosecutor relies thereon and parts with his property, is not a false pretense within the statute. To hold a person for trial, who is charged with obtaining money or property by false pretense, it must appear that the pretense relied upon relates to a

past event, or to some present existing fact, and not to something to happen in the future. A mere promise is not sufficient. Sup. Ct., Kansas, July, 1877. Ex parte Snyder (Cent. Law Jour.).

Gift inter vivos: transfer of stock on books of corporation not followed by delivery of the certificates: circumstances rebutting the presumption of a resulting trust and establishing a gift.-A transferred stock to B on the books of the corporation. He, however, never informed B of the transfer nor delivered to her the certificates of stock, but retained the same in his possession, and they were found, after his death, in an envelope indorsed with his own name and the name of B. It appeared that B was a niece of A, and had for many years been treated and regarded by him as his daughter. Held (affirming the decree of the court below), that the transfer on the books of the corporation vested in B a legal title to the stock; that the circumstances of the case rebutted any presumption of a resulting trust, and that B was therefore entitled to the stock. Sup. Ct., Pennsylvania, June 12, 1877. Roberts' Appeal (Week. Not. Cas.).

Life insurance: forfeiture: waiver.- Where it appears that an agent of an insurance company received an interest premium, over due, and after notice of the sickness of the insured, held, that it was not error for the court to charge that if at the time the money was paid, Lester, the insured, was sick, and that fact was communicated to the agent of the company, notice to the agent was notice to the company, and if after such notice the company received the money, they waived the forfeiture and are liable on the policy. Held, also, that where the assured was in default, and the insurance company drew upon him for the amount of the interest premium then overdue, and the assured was in good health at the date of the draft; that this was a waiver of the forfeiture, although the draft was paid after the agent had notice of the sickness of the assured. Sup. Ct., Georgia, Oct. 24, 1877. Piedmont & Arl. L. Ins. Co. v. Lester.

Negotiable instrument: certificate of stock in a corporation: blank indorsement: stolen certificates: negligence. -Certificates of stock in a corporation are not negotiable in a commercial sense, and the title to them cannot be transferred by one who fraudulently obtained possession of them from the owner. The plaintiff took a blank, instead of a special indorsement of the certificates from Maurice, and neglected to have the stock transferred on the books of the company. Maurice afterward stole the certificates and transferred them to third parties. Held, that the plaintiff was not guilty of such negligence as will require him to bear the loss of the stock. Sup. Ct., California. Winter v. Belmont Mining Co. (San F. L. J.).

Partnership: joint owners of steamboat not partners' retiring joint owner how far liable.- When one of the joint owners of a steamboat disposes of his interest by bill of sale duly acknowledged and recorded pursuant to the Act of Congress of July 29, 1850, this is sufficient notice to parties with whom the boat had previous dealings, of the withdrawal of the retiring owner from interest and ownership in the said steamboat. Where no other relation exists between the shareholders of a steamboat than that which arises from the joint ownership, they are not partners, nor is their liability measured by the rules of law which are peculiar to the partnership relation. Sup. Ct., Peunsylvania, Oct. 15, 1877. Adams v. Carroll (Pittsburgh L. J.).

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Suretyship: release of surety by transaction between creditor and principal.- Where a surety or accommodation indorser signs a note, the consideration of which is that it shall be held by the bank where it is negotiable and payable, as collateral security for another note or draft due said bank, and the bank, without the knowledge and consent of the surety, changes the contract by relieving the acceptor and indorser of that other note or draft, the security or accommodation indorser of the collateral note is discharged. Sup. Ct., Georgia, Oct. 9, 1877. Stallings v. Bank of Americus.

Ultra vires: void lease.-A lease made by certain officers of a corporation, unauthorized so to do, will be declared invalid. Mere silence will not be construed to be acquiescence. Phila. Com. Pleas, Oct., 1877. Kersey Oil Co. v. Oil C. & A. R. R. Co.

PURCHASE OF NOTES BY NATIONAL BANKS. SUPREME COURT OF MINNESOTA, SEPTEMBER 21,

1877.

FIRST NATIONAL BANK OF ROCHESTER V. PIERSON. The purchase of a promissory note by a national bank for purposes of speculation is ultra vires, and the bank aoquires no title to and cannot recover on a note so purchased.

Farmers and Mech. Bank v. Baldwin, 14 Alb. L. J. 391, followed.

A

PPEAL by plaintiff from a judgment in favor of defendant in the District Court of Olmstead county. The action was upon a promissory note made by defendant and held by plaintiff. Such other facts as are material appear in the opinion. Jones & Gove, for appellant. Chas. C. Wilson, for respondent.

CORNELL, J. It is expressly found as a fact by the District Court, before whom this cause was tried without a jury, "that the transaction, under which the plaintiff claimed to have acquired the note in question, was a purchase and not a discount, or lending of money on the credit of it;" and we have no hesitation in saying that, upon the evidence, we fully concur with the court that such was undoubtedly the real nature of the transaction as intended by the parties thereto. As a conclusion of law from this finding, the court held "that the plaintiff, a national bank corporation, had no authority to purchase or traffic in promissory notes as choses in action, and did not in law acquire, by the supposed purchase, any title to the note in question, and cannot recover upon it in this action."

Upon the fact as thus found it will be seen that the only question presented is, whether a national bank, created and organized under the act of Congress, "to provide a national currency," etc., is authorized to deal or traffic in promissory notes, as a species of personal property, or to acquire any title to such paper by a purchase, made admittedly not in the way of discount, or by lending money on the credit of it. In the case of the Farmers & Mechanics' Bank v. Baldwin, 14 Alb. L. J. 391, it was expressly held that no power of this character is conferred by a law of this State, which authorizes State banks, organized under its provisions, "to carry on the business of banking by discounting bills, notes and other evidences of debt, by receiving deposits, by buying and selling gold and silver bullion, foreign coin, and foreign and inland bills of exchange, by loaning money on real and personal securities, and by exercising such incidental

powers as may be necessary." And that a purchase of such paper, made not in the way of discount, was ultra vires, as outside the legitimate scope and purposes of such institutions.

Under the congressional enactment, the authority which is given is "to exercise all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidence of debt, by receiving deposits, by buying and selling exchange, coin and bullion; by loaning money on personal security, and by obtaining, issuing and circulating notes according to the provisions of said title." U. S. Rev. Stats., § 5, 136.

This is substantially like the State statute which was under consideration in the Farmers & Mechanics' Bank v. Baldwin, supra. The word "negotiating," as used in this section, and likewise in section 29 of the same statute, is used in its ordinary and appropriate transitive sense, to indicate, not an act of pur

note, and not discounting it or lending money on the credit of it," the mere fact of indorsement is not sufficient to warrant the court in treating the transaction as something different from what was intended.

We fully concur with the court below in its conclusion as to the character of the transaction in this case.

It was an ordinary case of note shaving, pure and simple, for purposes of gain alone, outside the circle of any legitimate banking business, and foreign to any purpose for which those institutions are established. No loan was made or intended, nor was there any discount in the ordinary and legal acceptation of that term as applied to the business of banking. Judgment affirmed.

CONSTRUCTION OF PATENT-CLAIM NOT ENLARGED BY COURTS.

the case of Keystone Bridge Company v. Phonix

chase, but one of transfer, whereby the negotiated Iron Co., just decided by the Supreme Court of the

paper is passed from the holder or owner and put into circulation. Hence the incidental power to negotiate notes to the extent necessary to carry on the business of banking, simply implies an authority to realize upon such commercial paper as the bank may receive in the lawful conduct of its business, by negotiating, selling, and transferring it by means of a rediscount, obtained or otherwise.

It gives no implied authority to speculate or traffic in paper of the character of the note in question, or in financial securities of any description. Morse on Banking, 4 and 5.

The powers, therefore, which are conferred by this section, in respect to the acquisition of commercial or business paper, are in no way affected or enlarged by the use of the term "negotiating."

In the absence of any authoritative exposition of the federal statute in this regard, the principle settled in the Farmers & Mechanics' Bank v. Baldwin must be regarded as decisive of the present case.

It is suggested by counsel for appellant, that upon the evidence this case is distinguishable from that of the Farmers & Mechanics' Bank v. Baldwin, supra, in that the note sued on here was indorsed by Butler, the holder at the time of the transfer to the plaintiff.

This fact is undoubtedly a distinguishing, though not conclusive test of the character of the transaction, and ordinarily raises a strong presumption denoting the existence of the relation of lender and borrower, between the bank and the party so making the transfer, and thereby indicates that the parties really intended a loan of money upon the credit of the paper so indorsed. And we have no doubt when such is the intention, "a borrower may," as was held in Smith v. Exchange Bank of Pittsburg, cited by appellant, "obtain the discount by a bank of the existing notes and bills of others of which he is the holder, as well as of his own paper made directly to the bank." And that the bank will thereby acquire a valid title to such paper because it makes the purchase by discount or through the exercise of its discounting pow

ers.

But where the acts of the parties, and the circumstances surrounding the transaction clearly rebut any presumption arising from the indorsement, and indisputably indicate the real nature of the transaction, intended by the parties to be, in the language of the court below, "an out and out purchase of the

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United States, the action was for infringing certain patents for improvements in iron truss bridges. The specification of the inventor's claim in the patent was for wide and thin bars of a certain kind applied in a certain way. The alleged infringement consisted in using cylindrical bars applied in a similar manner. The court in affirming the judgment of the court below dismissing the complaint says: The patentees confine themselves to "wide and thin" bars. They claim the use in truss bridges of such bars when the ends are upset and widened in the manner described. It is plain, therefore, that the defendant company, which does not make said bars at all, but round or cylindrical bars, does not infringe this claim of the patent. When a claim is so explicit, the courts cannot alter or enlarge it. If the patentees have not claimed the whole of their invention, and the omission has been the result of inadvertence, they should have sought to correct the error by a surrender of their patent and an application for a re-issue. They cannot expect the courts to wade through the history of the art and spell out what they might have claimed, but have not claimed. Since the act of 1836 the patent laws require that an applicant for a patent shall not only by a specification in writing fully explain his invention, but that he shall particularly specify and point out the part, improvement, or combination which he claims as his own invention or discovery." This provision was inserted in the law for the purpose of relieving the courts from the duty of ascertaining the exact invention of the patentee by inference and conjecture, derived from a laborious examination of previous inventions, and a comparison thereof with that claimed by him. This duty is now cast upon the Patent Office. There his claim is, or is supposed to be, examined, scrutinized, limited, and made to conform to what he is entitled to. If the office refuses to allow him all that he asks, he has an appeal. But the courts have no right to enlarge a patent beyond the scope of its claim as allowed by the Patent Office, or the appellate tribunal to which contested applications are referred. When the terms of a claim in a patent are clear and distinct (as they always should be) the patentee, in a suit brought upon the patent, is bound by it. Merrill v. Yeomans, 94 U. S. 573. He can claim nothing beyond it. But the defendant may at all times, under proper pleadings, resort to prior use and the general history

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of the art to assail the validity of a patent or to restrain its construction. The door is then opened to the plaintiff to resort to the same kind of evidence in rebuttal; but he can never go beyond his claim. As patents are procured ex parte, the public is not bound by them, but the patentees are. And the latter cannot show that their invention is broader than the terms of their claim; or, if broader, they must be held to have surrendered the surplus to the public.

RECENT AMERICAN DECISIONS.

SUPREME COURT OF WISCONSIN.*

CHATTEL MORTGAGE.

Construction of danger clause.-A clause in a chattel mortgage, providing that if the mortgagee shall at any time deem himself insecure, he may take possession of and sell the property, vests in him an absolute discretion; and his right does not depend upon his having reasonable ground for deeming himself insecure. Huebner v. Koebke. Decided Sept. 11, 1877.

CONTRACT.

Construction of: for joint adventure.-G. had contracted with R. and S. that the last-named parties should enter on G.'s land during the then next winter, and cut timber to the amount of about 1,500,000 feet, haul and saw the logs, run the timber to market, and there divide it so that one-third should belong to G. and the other two-thirds to R. and S., on condition that for every thousand feet received by G. he should allow R. and S. $12, and for the remainder they should allow G. $1.50 per thousand as stumpage. For the purpose of performing this contract, R. and S. then contracted between themselves that R. should log and saw 1,500,000 feet of lumber, more or less, during the following winter, and should run the same to market; that S. should pay R. "$14 for each and every thousand so put in and run to market," by advancing $2,500 for the use of the logging camp during the winter, the balance to be paid from the avails of the lumber; and that the profits or losses should be divided equally between the two parties. Held, (1) that the contract between R. and S. is to be construed with reference to their prior contract with G. relating to the same lumber. (2) That by the clear terms of the second contract, R., upon fulfillment thereof on his part, was entitled to receive from S. $14 per thousand upon all the lumber so manufactured and run to market, including the one-third which became the property of G.; and that the expense of stumpage and the profits of the transaction were to be divided equally between said R. and S. Richardson v. Single. Decided June 2, 1877.

INDORSEMENT.

Contract of, not disputable by parol.- One who has indorsed a note in blank, without qualification expressed in the writing, cannot show by parol, as against the person to whom he delivered it, a contemporaneous agreement between them that he should not be liable as indorser, where no mistake or fraud in procuring the indorsement is alleged. Charles v. Denis. Decided June 2, 1877.

JOINT OBLIGATION.

Remedy at law against survivors only: waiver by representative of deceased obligor.-Where one of several

From O. M. Conover, Esq., State Reporter. To appear in 42 Wisconsin Reports.

joint obligors (in this case partners liable on a firm note) dies, the legal remedy is against the survivors only, and the estate of the deceased is discharged at law; though his administrator may be proceeded against in equity upon showing that the remedy against the survivors has been exhausted, or that they are insolvent. But where, during the pendency of an action against alleged partners upon an alleged obligation of the firm, one of the defendants died, and his administrators asked and obtained leave to defend, filed a separate answer, and litigated the cause upon the merits. Held, that this was a waiver of all objections to the plaintiff's right to proceeed against the estate at law instead of in equity; though in order to recover against the administrators, plaintiff must allege (by supplementary complaint), and must prove, that the surviving obligor is insolvent. Sherman v. Kreul. Decided June 2, 1877.

PARTNERSHIP.

1. Contract rendering parties partners: for what partners liable. By the terms of a written contract between A, B and C as parties of the first part, and X and Y as parties of the second part, the former cov66 commence immediately enanted with the latter to

and work faithfully and constantly for X and Y, until the logs there mentioned should be marketed; that they would take charge of the several logging camps of X and Y, to be started at such points as the latter should direct, in a certain county, hire men to run the same, cut, haul, bank, and run to a certain place, all the pine logs they could get out during the then approaching fall and winter, and do all said work in a good and suitable manner, and for the best interests of all the parties to said contract. In consideration thereof, X and Y covenanted on their part to pay for all stumpage upon the logs so to be cut, for all hired help and all teams necessary for getting out such logs, and for all supplies and expenses necessary in cutting logs and getting them to market; and that when the logs were sold by them (X and Y), all the money so paid out by them should first be deducted from the amount paid for the logs, and the balance, with all teams and supplies then remaining on hand, should be divided in equal portions between the two parties above named, and the portion or share belonging to A, B and C should be "full payment and compensation for the work and labor of said " A, B and C. Held, that this agreement constituted all the parties thereto partners, and rendered X and Y liable for supplies furnished to A, B and C upon the order of the latter for the use of the logging camps while engaged in getting out logs under said contract. Upham v. Hewett.

2. For what partners not liable.-For supplies furnished to A, B and C for the use of their logging camps while engaged in getting out logs for other parties, and not under said contract, X and Y are not liable. Ib. Decided July 17, 1877.

RECENT ENGLISH DECISIONS.

CASES RELATING TO WILLS AND TRUSTS. Construction of will: "children of A, or their issue:" substitution.-A testator gave his personal estate to "all and every the children of my uncle R. F., or their issue, in equal shares," and all his real estate upon trust for A. F. for life, and after her death to sell the same and hold the proceeds "upon trust for all and

every the children of the said R. F., or their issue, in equal shares per capita." R. F. had had six children, two only of whom were living at the date of the will. The other four all left children. Held, that the proceeds of the real estate were divisible into six equal parts, of which two went to the surviving children of R. F., and the other four to the children per stirpes of the four children of R. F. who had died before the date of the will. Ch. Div., Feb. 17, 1877. Re Sibley's Trusts, 37 L. T. Rep. (N. S.) 180.

Construction of will: descendants: whether "descendants" in infinitum or only children: context: gift after the death of a person to whom nothing is expressly given: implied life estate: accumulations: intestacy.-A testator gave, devised and bequeathed to trustees the whole of his property, real and personal, upon trust (after a legacy to his wife of £1,500 and of all his household furniture and effects) in the event of his death without lawful issue, to divide the same into twelve equal parts, whereof three were to be given to the children of his late aunt A. equally among them, the descendants (if any) of those who might have died being entitled to the benefit which their deceased parent would have received had he or she been then alive, and the remaining nine parts were to be given in the same manner to the children and descendants of others of his aunts in the said will mentioned. And should there be no children or lawful descendants of any of his said aunts remaining at the time these bequests were to become payable, the portion or portions of the said residuary estate thereby devised and destined for such of them should be placed in the general residuary fund. The testator directed that the division of his residuary estate among his relatives should not be made till two years after his wife's death. And the testator directed funds to be set apart to provide for his wife's annuity of £700, payable under their marriage settlement. The testator's aunts left children, all of whom died long ago; many of such children left descendants. The widow died in 1872. The suit was instituted by a great grandson of one of the testator's aunts. Held, first, that the word "descendants" was the same in meaning as the word "issue;" and that by the context "the descendants being entitled to the benefit which their deceased parent would have taken," "descendants" and "parent" were correlative terms, and the "descendants" to take were the grandchildren of testator's aunts, remoter descendants being excluded. Sibley v. Perry, 7 Ves. 527, followed; Ross v. Ross, 20 Beav. 645, held not to apply. Secondly, that the testator's widow did not take a life estate by implication in the residuary estate; the mere fact that the heir or next of kin are some or all of the persons who take after the death of the widow, is not sufficient to raise the implication. Thirdly, that the accumulation ceased at the period provided for by the Thellusson act, and that the income was payable to the real and personal representatives respectively of the testator from that period up to the death of the widow, as under an intestacy. Fourthly, that the fund was divisible at the death of the widow, and not two years from that event. Fifthly, that the person claiming under the intestacy took the void accumulations free from all costs of the suit, which were to come out of the general fund. Ch. Div., March 12, 1877. Ralph v. Carrick, 37 L. T. Rep. (N. S.) 112.

Executor: willful default of: omission to convert: speculative securities.-The estate of a testator, whose

will contained no directions as to the time of conversion, consisted of (among other things) three second mortgage bonds of an American railway company, of which the market price was £153 per bond at the time when the will was proved. After this the price declined continuously, and sixteen months after the testator's death the executors sold two of the bonds for £52 a piece. A suit to administer the estate was instituted by three of the four person who were residuary legatees under the will, and when the suit came to a hearing, the third bond, which still remained unsold, was worth only £10 in the market. One of the residuary legatees had pressed the executors to sell the bonds, but the other three had either assented or had expressed no dissent to the postponement of the sale. The bill prayed that the executors might be declared guilty of willful default in not selling the bonds at once, and liable to make good to the estate their value at the time of the testator's death. Held (affirming the decision of Hall, V. C.), that, under the circumstances, the executors had exercised a reasonable discretion, and were not liable. Ct. App., April 14, 1877. Marsden v. Kent, 37 L. T. Rep. (N. S.) 49.

Trust: trustee acquiring benefit as ostensible owner misuse of a fiduciary position: trustees' unjust claim not forfeited by lapse of time: salmon fishings.—Per the Lord Chancellor (Lord Cairns): Where trustees acquire a benefit as ostensible owners of trust property, that benefit cannot be retained by them, but must be surrendered to those who are beneficially interested. Per Lord O'Hagan: The law of Scotland, equally with the law of England, condemns the misuse of a fiduciary position, and declares that any advantage wrongfully gained by a trustee shall inure to the benefit of the cestui que trust. Per Lord O'Hagan: Where a trust has been broken by the trustees for their own benefit, and to the injury of the cestui que trust, no lapse of time can validate the transaction. Where the trustees of land affecting actual ownership acquire from the Crown a right of salmon fishing in the adjacent sea, the acquisition inures to the benefit of the cestui que trust. Aberdeen Town Council v. Aberdeen University, L. R., 2 App. Cas., H. L. (Sc.) 544.

Trust for accumulation: void accumulation: Thellusson act: intestacy.-A testator gave freehold and leasehold estates to trustees upon trust for his wife for her life, or until her second marriage, and, in case she should marry again, upon the trusts thereinafter mentioned, and after the death of his wife, in trust for M. absolutely. But in case his wife should marry again, the said bequest in her favor was to cease, and instead thereof she was to receive £500 a year, and the residue of the income was to be accumulated from such second marriage until the wife's death, and then to be disposed of as in the said will directed. Testator died in 1852. His widow married again in 1855. The period of twenty-one years from the testator's death prescribed by the Thellusson act expired 16th April, 1873. Held, that there was no effectual disposition of the surplus from 16th April, 1873, and that there was an intestacy; that the trusts for accumulation then ceased; that accumulations since accrued and the future income of the estate belonged, so far as the same were attributable to personal estate, in equal moieties to the Crown and testator's widow respectively, and so far as attributable to real estate, to the Crown alone. (Talbot v. Jevers, L. R., 20 Eq. 255, followed.) Ch. Div., May 29, 1877. Weatherell v. Thornbush, 37 L. T. Rep. (N. S.) 182.

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