ance the respondents still object. Other excep. tions to the commissioner's report were taken at the time, but they have not been much pressed in argument and are overruled as not well founded. Reasonable demurrage is certainly a proper charge, as the leading maxim is restitutio in integram in all suits for damages occasioned to vessels by collision. The Balti more, 8 Wall., 385 [75 U. S., XIX., 465]. Subject to the provision that owners of ships and vessels are not now liable for any such loss, damage or injury, beyond the amount of their interest in the ship and her freight then pend ing, it is settled law that the damages which the owner of the injured vessel is entitled to recover in cases of collision are to be estimated in the same manner as in other suits of like nature for injuries to personal property, and the owner, as the suffering party, is not limited to compensation for the immediate effects of the injury inflicted, but the claim for compensation may ex tend to loss of freight, necessary expenses incurred in making repairs, and unavoidable de tention. The Cayuga, 2 Ben., 125; S. C., 7 Blatchf., 389; S. C., 1 Ben., 171. Tested by that rule, it is quite clear that the explanations given by the respective judges in the subordinate courts are sufficient to show that the report of the commissioner was correct. Many other authorities might be referred to in support of the rule here laid down, but inasmuch as the subject was fully considered in the case of The Baltimore, the court does not deem it necessary to give it much additional consideration. Decree affirmed.

S. C.-2 Ben., 125; 7 Blatchf., 385.

2. And this, although the title used to accomplish

this object could not be employed by a plaintiff in an action of ejectment, who can only recover when he has the paramount legal title.

3. A wife of the owner of land has a right of dower only in the event that she survives her husband. She has no present title to the land, either legal or equitable. [No. 124.]

Submitted Mar. 4, 1872. Decided Apr. 1, 1872. ERROR to the Circuit Court of the United

States for the Southern District of Illinois.

The case is stated by the court. Mr. Burton C. Cook, for plaintiff in error: settled in the State of Illinois by a judicial de If any principle of law can be considered as termination, it is settled that a bond for a deed does not constitute color of title under sec. 11 ch. 66, R. S. of Ill. Irving v. Brownell, 8 of Ill., 412.

In the case of Dunlap v. Dougherty. 20 Ill., 404, the court said: "The defendant paid taxes for two or three years under his contract for a conveyance, and without including these payments by him, payment of the taxes for seven successive years was not shown, and the defendant not having shown color of title and pay ment of taxes running together for the period limited, has failed to bring himself within the provision of section 9 of the statute." The provisions of sections 8 and 9, in relation to color of title, are identical. This case is referred to and approved in the case of Dickenson v. Bree lap v. Dougherty, 20 Ill., 404, we said that an den, 30 Ill., 320, where the court says: "In Dunexecutory contract for a conveyance was not color of title."

SAMUEL DOLTON, Piff. in Err.,

V.

AARON CAIN ET AL. (See S. C., 14 Wall., 472-479.)

Adverse possession under equitable title-when a defense to ejectment-right of dower.

1. A person having the equitable title to land, in Illinois, under a contract to purchase, the price of which he has paid or offered to pay, may avail himself of the Statute of Limitations of that State, by pleading his possession of seven years in bar of an action of ejectment.

NOTE.-Omission of, or error, in middle name not material or a misnomer; idem sonans; "Senior" or "Junior" forms no part of name. See note to Keene v. Meade, 28 U. S. (3 Pet.), 1.

A man may have divers names at divers times, but not divers christian names. A man cannot have two names of baptism as he may have divers surnames. Co. Litt., 3 a.

The law knows but one christian name and the omission of a middle letter or name is of no importance. State v. Martin, 10 Miss., 391; Gotobed's Case, 6 City Hall Rec., 25; Franklin v. Talmadge, 5 Johns., 84; Van Voorhis v. Budd, 39 Barb., 479; Roosevelt v. Gardinier, 2 Cow., 463; Milk v. Christie, 1 Hill, 192; McKay v. Spick, 1 Tex., 376; Edmonston v. The State, 17 Ala., 179; Hart v. Lindsey, 17 N. H., 35; S. C., 43 Am. Dec., 597.

"Junior" or "Senior" is no part of a man's name and need not be affixed to the name or signature of a person. Johnson v. Ellison, 4 T. B. Monr., 526; S. C., 16 Am. Dec., 163: Brainard v. Stilphin, 6 Vt., 9; S. C., 27 Am. Dec., 532; Lepiot v. Browne, 1 Salk., 7; Goodhue v. Berrien, 2 Sandf. Ch., 633; Farnham v. Hildreth, 32 Barb., 280; Hadley v. Shaw, 30 Ill., 354.

vey title, no matter on what it may be founded, is color of title."

Shackleford v. Bailey, 35 Ill., 387; Brooks v. Bruyn, 35 Ill., 394; Blanchard v. Pratt, 37 III., 245; Hinckley v. Greene, 52 Ill., 227, in which the court said: "It has been held by numerous cases of this court, that a deed which, on its face, purports to convey title, constitutes claim and color of title."

From these cases, the doctrine of which is entirely uncontroverted in this case, it would seem to be settled that a bond for a deed which does not purport on its face to convey any present title, does not constitute color of title."

Mr. Jackson Grimshaw, for defendant in

error:

Father and son having the same name, when that name is used without explanation, the father prima facie is intended. Brown v. Berright, 3 Blackf., ; S. C., 23 Am. Dec., 373; Graves v. Colwell, 90 Ill., 615; People v. Cook, 14 Barb., 300; Padgett v. Lawrence, 10 Paige, 170; S. C., 40 Am. Dec., 232.

The law knows but one christian name, and where one christian name is stated and also the initial letter of another christian name, the initial letter may be rejected as surplusage, and need not be proved Dilts v. Kinney, 3 Green (N. J.), 130: Thompson v. Lee, 21 Ill., 242; Erskine v. Davis, 25 Ill., 251; Bletch v. Johnson, 40 Ill., 116; Isaacs v. Wiley, 12 Vt., 674; Allen v. Taylor, 26 Vt., 599; State v. Manning, 14 Tex., 402; People v. Lockwood, 6 Cal., 205; Bratton v. Seymour, 4 Watts, 329; contra, Price v. State, 19 Ohio, 423: The State v. Hughes, 1 Swan (Tenn.), 261.

In Mass. it is held that a double baptismal name is in fact but one name, and essential to the proper description of the person. Com. v. Perkins, I Pick 388; Com. v. Hall, 3 Pick., 262.

Mistake in spelling name is unimportant where the name admits of different modes of spelling; but

Mr. Justice Davis delivered the opinion of the court:

This is an action of ejectment, to recover pos session of a quarter section of land in Adams County, Illinois.

The plaintiff, to maintain the issue on his part, introduced in evidence a patent for the tract of land in controversy from the United States to Benjamin Stephenson, and by various mesne conveyances proved title in himself. His immediate grantors were the heirs of Jacque mart and Thiriat, from whom he purchased in June, 1864. It was proved that the death of Jacquemart occurred in 1848, and Thiriat died in 1845.

The defendant, Cain, in denial of the plaint iff's right to recover, proved that he purchased from Jacquemart the real source of title of both parties, through Washington Cockle, his attorney in fact, the quarter section in dispute, on the 29th day of July, 1848, and took a bond for a deed; that Jacquemart and wife, who were residents of Paris in France, on the 10th of Au gust, 1847, empowered Francis R. Tillon, and Walter L. Cutting, of the City of New York, by letters of attorney, to sell their lands in Illi nois, with powers of substitution, and that on the 20th of September following, Tilion and Cutting by letter of substitution, authorized Washington Cockle, a resident of Peoria, Illinois, to act in their stead. It was further proved that Cain performed his part of the contract of purchase, as far as he was able; that he paid all the installments but the last, and offered to pay this, but Cockle refused to receive it, because it was rumored that Jacquemart was dead; that there has been a readiness and willingness at all times to make full payment, but the purchaser did not know who was entitled to receive the money. Cain took possession of the land very soon after its purchase, and has occupied it continuously, by himself or tenants, from that time until the commencement of this suit, in 1865, and for seventeen years paid the taxes on it. Cockle, soon after he made the sale, re ported it to Tillon and Cutting, who approved it, and under their direction expended all the money received from Cain in paying taxes on other lands belonging to Jacquemart.

On this state of facts, the court below decided that the possession of Cain was protected by certain limitation laws of Illinois, and directed judgment accordingly. From this decision the plaintiff has sued out a writ of error; and the sole

the ordinary rule is, that the pronunciation according to the ordinary rules must produce the true sound. Donnel v. U. S., 1 Morris, 141; S. C., 39 Am. Dec., 457: State v. Houser, Busb., 410; Belton v. Fisher, 44 Ill., 32.

The following have been held idem sonans and no variance, viz.: Deadema for Diadema (State v. Patterson, 2 Ired. L., 346; S. C., 38 Am. Dec., 299); Anny for Anne (State v. Upton, 1 Dev., 513); Whineyard for Wineyard (Rex v. Foster, Russ & R., 412); Steven for Stevens (Stevens v. Stebbins, 3 Scam., 25).

The strict rule of idem sonans has been somewhat relaxed and the following variances held immaterial: between Japhath and Japheth (Morton v. MeClure, 22 I., 257); Corn and Conn (Moore v. Anderson, 8 Ind., 18); Hearn and Hearne (Coster v. Thomason, 19 Ala., 717); Charleston and Charlestown (Alvord v. Moffatt, 10 Ind., 366,; Woolley and Wolley (Power v. Woolley, 21 Ark., 462); Hudson and Hutson (Cato v. Hutson, 7 Mo., 142); Penryn and Pennyrine (Elliott v.Knott, 14 Md., 121).

The following variances have been held fatal, viz.: Lyons for Lynes (Lynes v. The State, 5 Port., 236;

question in the case is: whether the defendant, Ĉain, the other defendant being his tenant, is within the protection of these laws.

They, in substance, declare that whoever has resided on a tract of land for a period of seven successive years prior to the commencement of an action of ejectment, having a connected title in law or equity deducible of record from the State or the United States, can plead the possession in bar of the suit.

It is objected that the entire title of the defendant is not evidenced by acts of record, but this is not necessary. If the source or foundation of the title is of record, it is available to every person claiming a legal or equitable interest under it who can connect himself with it by such evidence as applies to the nature of the right set up. Collins v. Smith, 18 Ill., 163 Poage v. Chinn, 4 Dana, 50.

Is the right set up by Cain, then, within the purview of the statute?

It is conceded to be, if the bond was executed under a valid power of attorney, coupled with full payment of the purchase money, and the obligor had the legal title to the land. This concession was necessary, because it is too plain for controversy that a union of these elements would constitute a complete equitable title, which a court of chancery, on the proper ap plication, would perfect into a legal title. But there are other principles by which an equitable title can be tested and, in their application to this case, relieve it of all difficulty. If a party has done all that could reasonably be expected of him to perform his part of the agreement, it will be considered, in equity, as having been done. Cain is within this condition. He purchased the land from Cockle, paid him all he agreed to pay, except the sum of $66, and this he was ready and willing to pay, but Cockle would not receive it, on the plea that it was rumored his principal was dead. Was not this offer equivalent to payment? What more, under the circumstances of this case, would a court of equity require? It would be a harsh rule to say that the purchaser should lose his land because he did not institute inquiry, in France, to ascertain whether the rumor of Jacquemart's death was well founded or not. There was no revocation of the power, and Cockle was the proper person to receive the money, unless Jacquemart were dead; and there is nothing in the record to show that Cain ever received any information on the subject, except what was con.

S. C.,30 Am.Dec., 557); Shakespeare for Shakespeare (Shakespeare's case, 10 East, 83); Tarbart for Tabart (Bingham v. Dickie, 5 Taunt., 814); McCann for McCarn (Tannet's case, Russ & R., 351); Donald for Donnel (Donnel v. U. S., 1 Morris, 141; S. C., 39 Am. Dec., 457).

One to whom an instrument is made payable by name differing from his own may declare on it in his own name, averring that it was made to him by the wrong name. Nicholay v. Kay, 6 Ark., 59; S. C., 42 Am. Dec., 680; Taylor v. Strickland, 37 Ala., 642; Wood v. Coman, 56 Ala., 283; Board of Education v. Greenebaum, 39 Ill., 609: Pinckard v. Milmine, 76 Ill., 278; Medway C. M'f'y v. Adams, 10 Mass., 360; Leaphardt v. Sloan, 5 Blackf., 278; Patterson v. Graves, 5 Blackf., 593; Robb v. Bailey, 13 La. Ann., 457; Jester v. Hopper, 10 Ark., 43.

Where a party executes an instrument by a wrong name, he may be sued by his true name with an averment that he signed it by the wrong one. Wood v. Coman, 56 Ala., 283; contra, that he must be sued by the name by which he executed the instrument. Wooster v. Lyons, 5 Blackf., 60.

defendant.

5. So, taking a check from the bankrupt and, crediting the amount of the check then on deposit on the bankrupt's note, the day before taking judgment, was a payment by way of preference and therefore, void, and does not raise the question of set-off. [No. 123.] Decided April. 8, 1872.

Argued Mar. 1, 1872.

APPEAL from the Circuit Court of the Unit

Their interest, as asserted by the appellant's counsel, was that they also had a judgment against the bankrupts on which execution was levied, on the same property, and that, as it was sold under both executions, Hotchkiss &

Sons have a right to be heard as to the validity

To

On the 28th of May preceding, this Bank brought a suit against Hitchcock and Endicott in which, on an allegation of fraud, a capias was issued for the arrest of Hitchcock. avoid this arrest, the bankrupt firm gave the Bank a demand note with warrant of attorney to confess judgment, and on the next day the Bank entered a judgment for the debt, less $325.20, the amount of the bankrupts' deposit account with the Bank on that day, which was indorsed on the note as a credit. Execution was immediately issued on this judgment and levied on the bankrupts' stock of goods.

On the 30th May. Hotchkiss & Son obtained a judgment against the same parties for a much smaller debt, on which execution was also issued and levied on the same goods.

It is not asserted by counsel here that the defendant acquired any rights to the property levied on by its execution. It would be useless to do so, for the president of the Bank acknowl edged that he was aware of the insolvent condition of Hitchcock & Endicott, and had instituted his proceeding after taking the opinion of counsel, that the bankrupt law did not affect such cases until after the first day of June, the earliest time at which proceeding could be commenced under that law.

We are of opinion that the provisó to the 50th section of the Bankrupt Act, which declares that no petition or other proceeding under it shall be commenced before the first day of June, 1867, is limited in its effect to such commeacement, and that any act done after its approval, March 2, 1867, in fraud of the purpose of the statute, was within its prohibitions.

In the case of Barney v. Baltimore, 6 Wall., 280 [73 U. S., XVIII, 825], this court, after reviewing the former decisions on this subject, remarks that there is a class of persons having such relations to the matter in controversy, merely formal or otherwise, that, while they may be called proper parties, the court will take no account of the omission to make them parties. There is another class whose relations to the suit are such that, if their interest and their absence are formally brought to the attention of the court, it will require them to be made parties, if within its jurisdiction, before deciding the case. But, if this cannot be done, it will proceed to administer such relief as may be in its power between the parties before it. And there is a third class, whose interest in the subject-matter of the suit and in the relief sought is so bound up with that of the other parties that their legal presence as parties in the proceeding is an absolute necessity, without which the court cannot proceed.

Hotchkiss & Sons manifestly belong to this second class, and not the third. The Bank is sued for its own wrong in procuring judgment and selling the property, and for the proceeds now in its vaults. Hotchkiss & Sons may or may not be in the wrong in procuring their judgment and levy, but it is not alleged that they have received any of the money. If they are entitled to any of it, they will be at liberty to bring any suit they may be advised to after this suit is disposed of, against the assignee or anyone else, and their rights will not be precluded by the present decree; nor have they any such interest in the subject matter of this suit that their presence is necessary to the protection of the Bank. A complete decree can be made between the Bank and the assignee without touching the rights of Hotchkiss & Sons or embarrassing the Bank in its relations to them. The organization of the Federal Courts has always required them to dispense with parties in chancery not within their jurisdiction unless their presence was an absolute necessity, which it clearly is not in this case.

2. It is said that the assignee should have applied to the state court for an order on the sheriff to pay over the proceeds of the execution to him.

We will consider the objections to the decree in favor of the plaintiff, in the order in which they are assigned in the appellant's brief.