premium; and, as it appears that the said property was destroyed by fire on the 29th day of October, 1872, whereby loss and damage accrued to the complainants to the whole amount of the said insurance, and that due proof and notice of such loss was given, and that the premium for said insurance was tendered and refused, it should be further decreed (see Taylor v. Merchants' Ins. Co., 9 How. 405; Perkins v. Washington Ins. Co., 4 Cow. 666; Carpenter v. Mutual Safety Ins. Co., 4 Sandf. Ch. 410), that the defendant pay to the said complainants the said sum of four thousand dollars (less the amount of said premium) with interest and costs.

GENERAL TERM ABSTRACT.

SUPERIOR COURT OF BUFFALO-MAY TERM, 1877.

CORPORATION.

1. Authority of president to employ agents may be inferred from the nature of the business of the corporation, etc.: receiving the benefit of agent's services amounts to a ratification of the contract of hiring. The plaintiffs were coal merchants at Buffalo. The defendant was a corporation, engaged in the business of mining, shipping and selling coal. An agreement was made between the plaintiffs and defendant's president and manager (M.) by which the plaintiffs were to act as defendant's agents at B., for the sale of its coal to Canadian railroads, and to receive a commission of ten cents per ton on all coal sold and delivered. Thereafter one of the plaintiffs, at the request of M. and W., the secretary and treasurer of defendant, accompanied them to Montreal to assist them (and did materially assist them) in negotiating and securing a contract with a railway company to furnish and deliver to it 30,000 tons of defendant's coal. At the foot of this contract a memorandum was made referring to the plaintiffs as the defendant's agents at B., and in the estimate of the expenses to be incurred in performing the contract, the defendant set down as an item the commission to be paid to the plaintiffs. The defendant delivered to the railway company 30,000 tons of coal, receiving therefor $4.85 per ton, and, as a part thereof, the very item of ten cents per ton for plaintiffs' commission. A principal purpose in employing plaintiffs was to secure their aid to the defendant in obtaining such contracts with the Canadian railways. Held, that as the employment of agents to effect sales of its coal was necessarily incident to defendant's business, the authority of its president and manager to employ plaintiffs as agents, and to agree to give them a reasonable compensation for their services, might be inferred from the facts and circumstances of the case, and that the question was, upon the evidence, properly submitted to the jury. Held, also, that the facts showed a ratification and adoption of the contract made with the plaintiffs. Pittsburgh Coal & Mining Co. Opinion by Jas. M. Smith, J.

Lee v.

2. What necessary to bind corporation.-In order to bind the corporation by the act or contract of its president and manager, it is not essential to prove that his power and authority was expressly conferred by the board of directors, but his authority to make a contract or do an act may be inferred from all the facts and circumstances of the case, from the nature of the business of the corporation, and the nature and character of the contract made or act performed,

aided by the presumption that as the chief executive officer and manager he must have been clothed with some powers and duties which necessarily belonged to those positions. Ib.

3. Implied contract to pay for services performed for corporation.-Where a person is employed for a corporation by one of its officers assuming to act in its behalf, and goes on and renders the services according to the agreement, with the knowledge of its officers, and without notice that the contract is not recognized as valid and binding, and such corporation avails itself of such services and receives the benefit thereof, it will be held to have sanctioned and ratified the contract, and be compelled to pay for the services according to the agreement. Having availed itself of the services and received the benefits, it is bound in conscience to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract. Ib.

EVIDENCE. ļ

1. Opinion of witness as to value. -To entitle the opinion of a witness as to value to be received in evidence, he must be first shown to have such knowledge of the situation, condition, quality and value of the property, by reason of having dealt in it, or for other reasons, as makes him specially competent to form a reliable and accurate opinion. Smith v. Holbrook. Opinion by Jas. M. Smith, J.

2. When opinion not admissible.-The property in question was situated upon Beaver Island, in Lake Michigan; it had a water front, upon which was a dock, a warehouse, etc. A witness testified that he had been for 25 years a sailor, navigating the lakes; that he visited Beaver Island in 1855, and had often stopped there since with his vessel to get wood; that in 1868 he lost a vessel there and was on the island a considerable time: that he knew this dock, and stopped there in 1868; that he knew the business carried on there, and the general character of the vessels which come there, and what the property is used for, but did not know the cost or value of the buildings or improvements; that he never owned any real estate there, nor negotiated for the purchase of any, and never knew of the sale of any, and never did any business there except to get supplies for his vessel. Held, that his opinion as to value was not admissible. Ib.

INDORSEMENT.

1. Indorsement of note: collateral security: when indorsee of note not entitled to securities held by indorser. -Where a creditor, who holds a collateral security for a debt-for example, a bond secured by a mortgage sells and transfers the debt, such sale carries with it the collateral security, the debt being the principal thing and the security but an incident which attends it. But this principle, as it arises out of equitable considerations, is applicable only in those cases in which equity requires that it should be, and never to the injury or against the equitable rights of the assignor. Vose v. Scatcherd, as receiver, et al. Opinion by Jas. M. Smith, J.

2. Right of indorsee does not resemble that of surety. The right of the indorsee of a note, or the assignor of a debt, to the securities given to the original creditor, is in its nature like the right of a surety to require from the creditor a transfer of whatever securities were given by the principal to the creditor. But where a creditor holds securities for the protection of

and which are common to several distinct debts, a surety by the payment of one, or any part of such debts, acquires no right to be subrogated to any part of the securities. His right is to stand in the place of the creditor, and he must take that place, if at all, wholly and entirely, not in part; he must take it with all its burdens; he must pay all the debts for which the securities are held. He will then be entitled to every remedy which the creditor has against the principal debtor, not only through the medium of contract, but by means of all securities for its performance. Ib.

3. Transfer of note carries collateral security with it.The defendants, the B. Car Co. and the B. and J. Railroad Co., agreed that certain freight cars, owned by the Car Co., should be delivered to the Railroad Co., and that the latter should give its five several promissory notes, payable to the Car Co.'s order, at 12, 14, 15, 16 and 17 months respectively, but that the title to the cars should remain in the Car Co. until payment of all the notes, when a bill of sale would be given; but in case of a failure to pay either of the notes when due, the Car Co. should be entitled, at its election, to take possession of the cars and sell them; the proceeds of the sale to be applied on the unpaid notes, and the balance to be retained by the Car Co. as rental for the use of the cars. The notes were, accordingly, made and delivered to the Car Co., and the cars delivered to the Railroad Co. The 12 months' note, before it became due, was sold and indorsed by the Car Co. to the plaintiffs, who recovered judgment thereon against the Railroad Co., and execution returned unsatisfied. The Car Co., for a valuable consideration, extended the time for the payment of said notes, and allowed the Railroad Co. to remain in the possession of the cars and use them long after plaintiffs' note became due. Held (on demurrer), that no right, benefit or interest, legal or equitable, in the cars or in the agreement passed by the indorsement of the note to the plaintiffs, and that they were not entitled in equity to have the cars sold to satisfy their judgment. Ib.

NOTES OF RECENT DECISIONS. Bailment: rights of pledgee as to disposition of pledge. -A pledgee may sell a pledge if unredeemed in his hands, and his vendee under such sale will hold the pledge as against the pledgor until the amount it was pledged to secure is paid. Such vendee takes all the interest of the pledgee in the pledge. Before the pledgor can maintain replevin, he should tender to the person holding the pledge the amount for which the pledge was given. Sup. Ct., Illinois, June 22, 1877. Bradley v. Parks (Chic. Leg. News).

Criminal evidence: existence of secret organization to establish motive.-Upon a trial for murder it appeared that, although the crime was instigated by one who wished to avenge a private injury, yet it was actually executed by the prisoners who were strangers to the murdered man, and had no cause of enmity against him. To explain the motive for the crime, the Commonwealth offered to prove the existence of a secret and criminal organization which furnished men from one division to commit murder, and in return obtained men from the division to which the instigator of the crime belonged to murder a man obnoxious to the first division. Held, that this evidence was properly admitted. Sup. Ct., Pennsylvania, May 7, 1877. Carroll v. Commonwealth (W. N. Cas.).

Criminal law: conspiracy: partnership.-A combination between one member of a partnership and a third person to issue and put in circulation the notes of the firm, drawn by such partner for the purpose of paying his individual debts, the intention of the combination being fraudulent, is an indictable conspiracy. State v. Donaldson, 3 Vroom, 154; Reg. v. Warburton, L. R., 1 C. C. Res. 274. New Jersey Sup. Ct., June, 1877. State v. Cole (Somerset Gazette).

Contract: personal services: payment for, conditioned upon sale of realty: failure of sale through the acts of the vendor: burden of proof.-The vendor of a tract of land employed A to perform certain services, payment for which was conditioned upon the payment of the purchase-money by the vendee. Afterward a part of the purchase-money having been paid, the vendor released the vendee and accepted a new purchaser in his place, who, however, failed to pay the balance of the purchase-money. In a suit by A to recover the value of his services, held, that he could not recover without showing either payment of the whole purchase-money or a prevention of payment by the acts of the vendor. Held, further, that the burden of proof was upon A to show that the release of the first purchaser was without cause and prejudicial to his rights, and therefore amounted to a prevention of the sale. Sup. Ct., Pennsylvania, Feb. 5, 1877. Norris v. Maitland (W. N. Cas.).

Criminal pleading: election.-Where upon the trial of an indictment, in which the time alleged for the commission of the offense is not material, the evidence tends to prove an offense committed on a day other than that alleged in the indictment, and a precisely similar offense committed on the day alleged in the indictment, the State may elect for which it will proceed. If a party does not object to evidence offered, it is discretionary with the trial court to grant or refuse his motion after it is received to strike it out upon an objection which was apparent to him, and which he might have made when the evidence was offered. Sup. Ct., Minnesota, May 31, 1877. State v. Johnston (N. W. L. Rep.).

Divorce: counter charge: when adultery of plaintiff not bar. In an action for divorce, upon any other ground than that of adultery, the adultery of the plaintiff is not a bar to the action. But if the plaintiff claims in her complaint alimony, her adultery may be pleaded and proved as a defense, in whole or in part, to that claim. Sup. Ct., Minnesota, May 31, 1877. Buerfening v. Buerfening (N. W. L. Rep.).

Election: votes cast at, presumed to be all the legal votes. The presumption is that the vote cast at an election, held according to law, is the vote of the whole number of legal voters, and this presumption cannot be rebutted by proof of the number of votes cast at an election held in the preceding year. Sup. Ct., Illinois. Melvin v. Lisenby (Cent. Law Jour.).

Insanity: contracts by insane persons when not set aside. Where persons apparently of sound miud, and not known by the adverse party to be otherwise, enter into a contract which is fair and bona fide, and which is executed and completed, and the property which is the subject of the contract cannot be restored so as to put the parties in statu quo, such contract cannot be set aside either by the alleged lunatic, or those who represent him. Sup. Ct., Illinois, June 22, 1877. Scanlan v. Cobb (Chic. Leg. News).

Juror: when competent: opinion of prisoner's guilt: when of such a character as to disqualify juror.-A

juror, who has formed an opinion of the prisoner's guilt, is not thereby disqualified from serving, unless his opinion be founded upon the evidence to be given or has become a fixed belief. A juror testified on his voir dire that he had a fixed opinion from what he had read, but that it was not such an opinion as would influence him in any degree as a juror to give undue weight to evidence against the prisoner, and that he felt certain he could divest his mind of all prejudice and be controlled only by the evidence. Held, that he was competent, inasmuch as he had no fixed belief of the guilt of the prisoner, and had no opinion founded upon the evidence to be given. Sup. Ct., Pennsylvania, May 7, 1877. Curley v. Commonwealth (W. N. Cas.). Mechanics' lien: subordinate to prior mortgage: attaches to building only.—A mortgage was executed on certain land, upon which was standing an old paper mill. The mortgagors afterward tore down the old building in part and erected a new one, more in the nature of repairs or enlargement of the old one. Held, that the mortgage was a paramount lien on the land and building. Where the claim of B. & S., for engine and pump to run the paper mill, and their lien thereon was subsequent to the other liens thereon, held, their mechanics' lien did not lie upou the articles furnished, but upon the building itself. Sup. Ct., Iowa, April, 1877. Equitable Ins. Co. v. Slye.

Partnership: agreement to indemnify retiring partner against existing contracts of the firm: presumption as to knowledge of liquidating partner with regard to such contracts: evidence: proof of contents of letters: what not admissible: parol proof corroborative and explanatory of matters of record.-It is the duty of a partner who has agreed to indemnify his retiring copartner from existing contracts and obligations of the firm, to ascertain the extent and nature of a liability of the existence of which he has knowledge, and, if he fail to do so, his ignorance thereof is no defense to an action for not keeping the retiring partner indemnified. An authorized agent of the firm of A & B procured patterns for the firm, agreeing to return them immediately after using. They were not returned. Upon a dissolution of the firm, A agreed "to save and keep harmless" B from all existing contracts and obligations. Suit was brought against B for the value of the patterns. B gave notice of the suit to A, calling upon him to defend. This A declined to do, upon the ground that he had no knowledge of the contract to return the patterns. Judgment having been rendered against B, he brought suit against A for damages: Held (reversing the judgment of the court below), that A, knowing that the patterns did not belong to the firm, and having them in his possession, was bound to find out all the duties and obligations of the firm concerning them. Sup. Ct., Pennsylvania, Oct. 9, 1876. Farrington v. Woodward (W. N. Cas.).

Probate of will: when formal notice not necessary to conclude legatee.-Where a legatee under a will is shown to have had actual knowledge of proceedings to set it aside, he cannot be permitted to come in afterward and review the controversy, on the ground that legal and formal notice had not been served on him. Sup. Ct., Pennsylvania, Nov. 24, 1876. Appeal of Johnston, Connell's estate.

Real estate:tenancy in common: hedge, how far a partition fence.-Hedges planted upon the division line between premises do not attain the character of a partition fence, so as to impress upon the respective owners the character of occupancy in severalty, until they be

come sufficient to turn stock. So long as stock can pass at will, from the premises of one to those of the other, adjoining proprietors are occupying in common without a partition fence. An owner of premises occupied as above, may throw any portion of the same, not less than twenty feet in width, to common, upon giving six months' notice to the adjoining owner. Sup. Ct., Iowa, April, 1877. Miner v. Bennett (West. Jurist).

Vendor and vendee: sale of chattels: warranty: eviction: misrepresentation of title: sale of patent.-Where defense is made to the payment of purchase-money for breach of warranty of title, there should be proof of eviction or of an involuntary loss of possession. While the vendee holds the covenant and retains the possession he cannot withhold the purchase-money. B. sold to K. all his right, title, and interest in and to certain personal property, and in and to a patent right for a sum to be paid by weekly installments. K. took possession of the property and paid the installments as they fell due for nearly two years, and then declined to make further payments. In an action for the balance of the purchase-money, K. offered to prove that B. had no title at the time of sale, having parted with his interest some months previous to W., from whom K., within a mouth after his purchase from B., again purchased the property, and that he did not go into possession until after such purchase from W.; also that the patent was a nullity, and that at the time of sale B. represented himself to be the owner of onehalf of the patent, whereas he had previously parted with all his interest therein. The court below excluded

this evidence: Held (affirming on this point the court below), that no eviction having been proved, the defect of title in the vendor constituted no defense; but, held (reversing the judgment of the court below), that the representation of the vendor that he owned an interest in the patent, when in fact he did not, was a fraud which the vendee was entitled to set up as a defense. Krumbhaar v. Sup. Ct., Pennsylvania, May 7, 1877. Birch (W. N. Cas.).

Warranty on sale of personal property.-Where defendants sold plaintiff a worthless reaping and mowing machine, and warranted it to be good for the purposes for which it was intended, plaintiff is entitled to recover, and the measure of damages is the difference between the actual value of the machine and what it would have been worth if it had been as warranted, with interest at six per cent. And plaintiff's right to recover is not affected by the fact that the purchasemoney was paid after the defects were discovered, where the plaintiff had tendered back the machine, and only retained it in order that the plaintiff might, by furnishing new gearing, make the machine as good as warranted. Opinion by Norton, J. Courtney et al. v. Boswell.

COURT OF APPEALS ABSTRACT.

APPEAL.

When not allowable: order not granting new trial.-An action was tried before the court which made certain findings of fact and conclusions of law and gave judgment. On appeal the General Term reversed the judgment but did not order a new trial, and no judgment was entered on the order of the General Term. Held, that no judgment could be rendered by this court, the appeal not being from an order granting or refusing a new trial, nor from a final

judgment. Appeal dismissed. Rust v. Hansels. Opinion by Rapallo, J.

[Decided May 22, 1877.]

CARRIER OF PASSENGERS.

Railroad company owning two lines between same terminal points need carry only over shorter one.— Plaintiff purchased a ticket from Lockport for Troy over the defendant's railroad. The ticket read simply "Lockport to Troy," and did not indicate what route to take. From Rochester to Syracuse, which is a part of the route from Lockport to Troy, defendant has two roads, one, the short route, over which all through trains go, and the other, a longer route. Held, that the contract by defendant was to carry plaintiff over the usual and most direct route, and if he chose to go by the longer one defendaut was entitled to charge him extra for traveling thereou. Judgment below affirmed. Bennett v. N. Y. C. & H. R. R. R. Co. Opinion by Church, C. J.

[Decided May 22, 1877. Reported below, 5 Hun, 599.] FIRE INSURANCE.

1. Insurance of interest of mortgagee: subrogation.By a policy of insurance against fire upon mortgaged real estate issued to the mortgagee upon "her interest as mortgagee," it was provided that "in case of loss the assured shall assign to this company an interest in said mortgage equal to the amount of loss paid." The mortgage contained the usual clause for insurance by the mortgagor, and in case of default provided that the mortgagee might make such insurance and the premiums paid should be deemed secured by the mortgage. The insurance was made by the mortgagee who asked the owner of the mortgaged premises to repay it, and he promised to do so and said it was all right, and the mortgagee instructed her attorney to collect the insurance with principal and interest upon the mortgage. Held, that in case of loss and payment of the insurance to the mortgagee, the insurers were entitled to an assignment of the mortgage and were not affected by any agreement or transactions between the owner of the mortgaged premises and the mortgagee. Judgment below reversed. Foster et al., trustees, v. Van Reed. Opinion by Miller, J. Church, C. J., dissented.

2. Owner of mortgaged premises prevented insuring by act of mortgagee: effect of.-Held, also, that a claim by the owner that the mortgagee by her declarations prevented him from insuring in his own behalf did not estop either her or her assigns from denying that the money received for insurance was to be applied upon the mortgage. Ib. [Decided May 22, 1877. Reported below, 5 Hun, 321.]

NEGLIGENCE.

Railway company piling material on its own land so as to obstruct view of approaching train, not.—Plaintiff was injured by a passing train while crossing a railroad track at a private crossing. At the time of the accident there was a quantity of stumps and other material which the railroad company had piled on its own land, which prevented one coming toward the track at the crossing from seeing approaching trains. Held (reversing the decision of the court below), that it was not negligence for the company to so pile the stumps and material on its own land as to obstruct the view of trains, though the existence of such obstructions might have a bearing upon the question of the contributory negligence of plaintiff and that of the degree of care with which trains approaching the

crossing should be run. (Richardson v. N. Y. C. R. R. Co., 45 N. Y. 846, and Mackey v. N. Y. C. R. R. Co., 35 id. 75, distinguished.) Cordell v. N. Y. C. and H. R. R. R. Co. Opinion by Church, C. J. [Decided June 12, 1877. Reported below, 6 Hun, 461.]

PARTIES.

In action for fraud in sale of real estate: when person not named in contract may maintain action.- Plaintiff's husband made a contract under seal in his own name for the purchase of real estate. He acted as the agent of his wife and this was known to the vendor, and the wife was present during the negotiations, paid the consideration and thereafter received the deed which was executed in pursuance of the contract and took possession of the real estate and occupied it. Held, to be sufficient to give her a right to maintain an action in her own name against the vendor founded on fraud and misrepresentation in making the sale. Judgment below affirmed. Beardsley v. Duntley. Opinion by Miller, J. [Decided May 22, 1877.]

PARTNERSHIP.

1. Dissolution of: notice to those dealing with firm: who is a dealer: agent.-Plaintiff was an agent employed by the firm of D. B. & Co. to purchase lumber for it. Held, a dealer with the firm, so as to entitle him to the protection of the rule which makes a retiring partner liable for subsequent engagements made by his former copartner in the firm name with those who had previous dealings with the firm and who entered into the new transaction without notice of the change in the partnership. Judgment below affirmed. Austin v. Holland et al. Opinion by Andrews, J.

2. Notice by mail, when insufficient: question of fact.The firm did business at Toledo, Ohio; plaintiff resided at Detroit. Notice of the dissolution of the firm was published in the Toledo papers, and a copy was mailed to plaintiff at Detroit. Plaintiff denied ever receiving the notice. Held, that actual notice to plaintiff was necessary; that merely mailing the notice was not sufficient if it was not received, and that whether it was received was a question of fact for the jury. Ib. 3. Presumption as to letters sent by post.-When letters are sent by post to a party at his residence it is presumed that they were received by him in due course. But this is a presumption of fact and not of law and may be repelled by proof. Ib. [Decided May 22, 1877.]

SHIPPING.

-

1. Steam-tug and canal boat towed by it: relations between master and servant. - A tug was towing canal boats down the Hudson river when a collision took place, at night, between one of the canal boats and a tug coming up the river. The canal boat at the time displayed no light, which was one cause of the collisiou. The court left it to the jury to find whether or not, at the time those in charge of the canal boat, were under the direction and control of those in charge of the tug towing it, so as to make them the servants of the owners of the tug. Held, error. The question was one of law for the court and not of fact for the jury. Judgment below reversed. Arctic Fire Ins. Co. v. Austin. Opinion by Allen, J.

2. Respondeat superior: tug and boat towed.-The fact that a steam-tug furnishes the motive power for a canal boat and undertakes to tow it "at the risk of the master and owner" of the latter, does not relieve the one in charge of the canal boat from the obligation to use

every precaution necessary to guard against the perils of navigation, neither does it constitute the proprietors of the tug common carriers or make them liable for the negligent acts of those in charge of the canal boat within the doctrine of respondeat superior. Ib. 3. Duty of boat towed to exhibit lights: negligence.— The canal boat which was run into by the upwardbound tug was the outer boat on the larboard side of the front one of three rows of four boats, which were being towed by a hawser astern of the downwardbound tug. It did not exhibit the statutory or customary lights. Held, negligence on the part of the canal boat owners. Ib.

4. Rights of owner of cargo in case of collision.The owner of a cargo transported by one vessel has no action against the owner of another vessel negligently coming into collision and causing injury to the cargo, if the negligence of those in charge of the vessel carrying the cargo contributed to that injury. (Steamboat Atlas v. Phoenix Ins. Co., 15 Alb. L. J. 102, distinguished.) Ib.

court is further of opinion that there is no other error in the said decree than as aforesaid. Therefore, it is decreed and ordered that so much of the said decree as is above declared to be erroneous, be reversed aud annulled, and the residue thereof affirmed; and | that the appellee, R. D. James, pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And it is ordered that this cause be remanded to the said chancery court for further proceedings to be had therein, in conformity with the foregoing opinion and decree, which is ordered to be certified to the said Chancery Court of the city of Richmond." The question was, whether this judgment was reviewable by the Supreme Court of the United States. The court said:

This judgment has been brought to this court by one of the parties upon a writ of error, and the executor now moves to dismiss the writ, because the judgment of the Court of Appeals was not the final judgment or decree in the suit. Our jurisdiction upon writs of error to State courts is con

SPECIFIC PERFORMANCE.

Vendee in possession under parol contract for sale of real estate. The vendor, at the time of the sale of certain real estate, represented that the description in the deed included a small piece of land which was not, in fact, included therein. The vendee took possession of this piece and occupied, but made no permanent improvements. Held, that the case was not within the statute of frauds; that an action in equity to compel a conveyance would lie, and that the plaintiff was not limited to an action for damages for the fraud. (Glass v. Hulbert, 102 Mass. 24, criticised and distinguished.) Judgment below affirmed. Beardsley v. Duntley. Opinion by Miller, J. [Decided May 22, 1877.]

APPEALS TO FEDERAL SUPREME COURT FROM STATE COURTS.-ONLY FINAL JUDGMENTS REVIEWABLE.

IN

N Davis v. Crouch, which was recently before the United States Supreme Court, the controversy was over an estate left by one Hector Davis, in which the Supreme Court of Appeals of Virginia rendered the following judgment:

"This day came again the parties by their counsel, and the court, having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said chancery court erred in overruling the appellants' fifteenth exception to the report of Commissioner Evans; instead of doing which, the said court ought to have recommitted the said report, as to the matter of the exception, to a commissioner of the court, with instructions to make further inquiry, and report as to the debts of the estate of Hector Davis at the time of his death, by persons residing in the State; whether any of said debts, and which of them reported as worthless or doubtful, are now available, or might have been collected or secured by lien upon real estate or otherwise, or by suits instituted since the death of the testator, and as to any other matters connected with said debts which the said commissioner might deem material, or concerning which either of the parties might require him to make inquiry and report; but the

highest court of the State in which a decision in the suit can be had. Rev. Stat. 709. This, we think, is not such a judgment. It decides some of the questions involved in the controversy between the parties, but the suit itself has been sent back to the Circuit Court for further proceedings, in conformity to the opinion filed with the record. In short, the judgment is one of reversal only, which, as we have uniformly held, is not a final judgment in the suit. McComb v. Commissioners, 91 U. S. 2; Parcels v. Johnson, 20 Wall. 654; Tracy v. Holcomb, 24 How. 427. After the further proceedings which have been ordered in the Circuit Court the suit may be again taken to the Court of Appeals and another judgment rendered there.

The object of the parties is to settle and distribute the estate of the testator under the direction of the court. The plaintiffs in error are only interested in securing the payment of their legacy. A statement of the accounts of the executor, upon the principles settled by the Court of Appeals, may produce a fund sufficient to satisfy them. The only question upon which our jurisdiction can be invoked arises out of the decision as to the liability of the executor to account for his investments in Confederate securities. As to this, the present plaintiffs in error, having been non-residents of the Confederate territory during the war, occupy a different position from the other parties, and until the suit has been finally disposed of in the State courts, the fund ascertained, and the results of a decree ordering distribution known, we cannot tell whether they will be injuriously affected by the errors now complained of. They cannot bring the case here for the benefit of the other parties interested in the estate, except so far as the relief granted to them may indirectly operate to the advantage of the others. If in the end, upon the distribution of the estate under the principles of accounting as now established, they shall not be able to obtain payment of the amount due them, the case may be again taken to the Court of Ap peals upon the future decree of the Circuit Court, and from there here if necessary. Whether their interest in the convertible value of the Confederate currency invested in Confederate bonds for the purchase of State stock is sufficient to justify them in doing so will be a matter for them to determine after the final decree has been rendered.