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would give relief whenever common law clearly left a studied historically — studied in view of the peculiariright without a remedy; and he was for affirmance on ties of deceased judges, the carelessness of deceased the merits of the case. Senator Hopkins was for lawyers, the special hardships of deceased suitors, and affirmance on account of the local character of the Su- the special forms of forgotten institutions. perior Court, distinctly deolining to pass upon the I ask the Court of Appeals, and the shades of such broader question. Senator Lott was for affirmance on other American jurists as Judge Story and the Massaall of the above grounds. Senator Porter was with chusetts courts, who have followed Doulson v. Matthe chancellor. Two senators dissented. The others thews without much discussion, whether the law was said nothing. The case therefore upon this point con- really best “enshrined" by them, or by Lord Manssists but of three dicta.

field and by his American followers, who by statute or The question was first actually settled by the highest decision have dubbed this principle of ours an "abcourt of New York in 1880 in the case of American surd rule.” Oliver v. Loye, 59 Miss. 320, 323. Union Tel. Co. v. Middleton, 80 N. Y. 408, but the In Spanish “loco" means a lunatic. Perhaps a court did not understand that this was the first decis- "local" action is by derivation one whose character ion. It simply and unquestioningly followed Watts v. is madness-inspired madness, in deference to the McKinney. There was no discussion in the opinion, “unwritten law,” let us call it. and no full discussion in the brief. In fact the brief

E. B. W. of the defeated party practically conceded the princi- NEW YORK, April 8, 1884. ple, trying to distinguish his case as really one of conversion of personalty. It is not signed by counsel. Perhaps it was got up by a clerk in the attorney's office. OFFICER'S RETURN OF SERVICE OF PROCESS Chancellor Walworth had rested himself partly upon

CONCLUSIVE, " the statute " as authority for his dicta. Successful counsel in the last-mentioned case, and the court in

MICHIGAN SUPREME COURT, DECEMBER 21, 1883. its opinion, repeat his words. What was this statute? Simply 2 R. S. 409, $ 2 (1). “Action for trespass on land

STORK V. MICHAELS. and action for trespass in the case of injuries to real estate shall be tried in the county where the subject of An officer's return of service of process is conclusive upon the the action shall be situated.” If counsel or judge had

parties to the suit in which the process issues when looked up this statute in 1880, instead of taking it on

brought in question in a collateral suit or proceeding. trust, be would have found (1) that it had been settled


CTION for conversion of attached property. The to be of no application (Newton v. Bronson, 13 N. Y. opinion states the case. The defendant took a 587, 592; Gardner v. Ogden, 22 id. 327, 339); (2) that writ of error. it had been repealed. The Code, now in force in its B. T. Prentis, for plaintiff. place, laid down that while in general the action of

Wm. B. Jackson, for defendant. wasto (among others) must be tried in the county where the land is situated, yet “where all the real COOLEY, J. The only question important to the deproperty to which the action relates is situated with- cisiou of this case is, whether an officer's return of serout the State," the action must be tried in the county vice of process is conclusive upon the parties to the where one of the parties resides. Code Civ. Pro., $S 982, suit in which the process issued, when brought in ques84. This section was brought to the attention of the tion in some collateral suit or proceeding. Michaels, Court of Appeals in Cragin v. Lovell. Here was a chance it appears, on August 10, 1874, procured an attachment to escape the former decisions. Either (1) section 982 from a justice of the peace against the chattess of does not concern the jurisdiction of the courts, in Stork, and put it iuto the hands of Constable John which case part of the authority of the formerNew York Guau for service. The constable made return that by cases falls away; or (2) it does concern jurisdiction, virtue of the writ he did, on the 10th day of August, in which case they are overruled. But the court, while 1874, seize the goods and chattels of the defendant mentaking the former ground, still upheld the American tioned in the inventory annexed thereto, and that on Unior Tel. case, saying that the section could not the 12th day of August, 1874, he served upon the dethere have been overlooked, ergo its construction was feudant a copy of the writ and inventory, duly certisettled; whereas, as we have seen, the court and coun- fied by him, by leaving the same at his usual place of sel actually relied on a statute superseded by it, re- abode with his wife, a person of suitable age and dispealed thirty years before! Somewhere or other the cretion, whom he informed of its contents. What remedial power of equity, on which Chaucellor Wal- further was done in the attachment suit does not apworth relied to counteract the effect of his common- pear. The present action is trover for the conversion law technicalities, has been lost. Perhaps we should of the property which the constable returned that he say that in 1882, rather than in 1880, New York finally had attached. The plaintiff claims that the constable bound herself to the middle ages, and became an Alsa- did not attach the goods at all, but that the officer and tia in this respect from chancery as well as from law. the defendant together took them away, and that they

New York, then, cannot repair a tort to real prop- were immediately left by the officer with the defenderty in Louisiana for such causes as these :

ant, aud plaintiff never saw them afterward. The 1. Jurors were once witnesses as well.

officer was a witness in the cases and testified to hav. 2. Lord Mansfield was so powerful that people often ing attached the goods and handed them over to dedared not appeal from his nisi prius decisions.

fendant for safe keeping; and the plaintiff, in his tes3. Lord Kenyon was a technical old tory.

timony, admitted that the officer told him there was 4. It was not advisable for Livingston to appeal an attachment on the goods at the time he and the deagainst an ex-president of the United States.

feudant took them. It was coutended however that 5. A certain case in 1880 was carelessly briefed. the constable was not acting in good faith, and that

6. The Court of Appeals in 1880 supposed a certain the seizure of the goods was a mere pretense to get principle to be settled in New York State, which was them into the possession of defendant. not.

The question in this court arises upon the following 7. The Court of Appeals in 1882 supposed that a cer- instructions of the trial judge: tain case had been carefully considered, when in fact “If Mr. Gnau made a levy upon those goods, seized it had not been.

them under an attachment, and they were in his posTruly must each rule of the “unwritten” Jaw be session, and he delivered up the possession of them afterward to Michaels, if that is all that took place, action upon a finding that no attachment had in fact then Michaels is not liable; he would not be liable in ever been made. Had the suit been brought against trover, nor would he be liable in trespass. On the the officer for a false return, it is conceded that the other hand, if this was a mere scheme between Gnau plaintiff would have been at liberty to show the falsity and Michaels to get possession of those goods and the of the return by any evidence fairly tending to show writ of attachment was not levied in good faith upon it. He might do this also by affidavit, on a motion in the goods, but the mere determination was to get the the same suit to set aside the return; and this is not goods in Michaels' possession, and Michaels and Gnau an uncommon proceeding when the truth of the reunderstood it and did it for that purpose and no other turn is disputed. Chapman v. Cummings, 17 N. J. 11; purpose, then Michaels would be liable.


Carr v. Commercial Bank, 16 Wis. 50; Bond v. Wilson, “So you see, gentlemen, it is a matter of a good 8 Kans. 228; S. C., 12 Am. Rep. 456. It has also been deal of importance to determine, in the first place, held that the officer's returu may be contradicted in whether Mr. Goau really served this writ of attach- equity in a proceeding instituted to set aside a judgment on those goods. It does not make any difference ment founded upon it. Owens v. Ranstead, 22 III. 161; whether he pursued the proper steps or not, because Newcomb v. Dewey, 27 Iowa, 381; Bridgeport Savings Michaels would not be responsible for the conduct of Bank v. Eldredge, 28 Conn. 556; Bell v. Williams, 1 the officer in that regard, unless he was an active par-Head, 229; Ridgeway v. Bank of Tennessee, 11 Humpb. ticipant in it and directed the officers to do that which 523. See Fowler v. Lee, 10 Gill. & J. 358; S. C., 32 Am. was against the law.

Dec. 172; Leftwick v. Hamilton, 9 Heisk. 310. It is “Now Mr. Gnau's duty undoubtedly was, when he also held that the officer's return is not conclusive as seized those goods, to take them in his possession, or to facts stated therein, which he must learn by inquiry put them in the possession of somebody who acted as of others; as for example, that the person upon whom his agent. The object of attachment is to seize the the process was served was the incumbent of a certain goods and have them forthcoming at the end of suit, corporate office, such as that of president of a bank. provided judgment is taken.

St. John v. Tombeckbee Bank, 3 Stew. 146; Rowe v. “Now if he put an attachment on the goods, really Table, etc., Co., 10 Cal. 441; Wilson v. Spring, etc., Co., seized them, aud you find the evidence shows that, id. 445. See, Chapman v. Cunning, 2 Har. 11; Sanford that is the end of this case. I do not care what was v. Nichols, 14 Conn. 324; and compare State v. O'Neill, done afterward; sufficient for the purposes of this case, 4 Mo. App. 221. And a person not a party or privy to neither the action of trespass nor of trover would lie. the proceeding in which the return is made, is never But if he and Michaels went there and took possession concluded by it from showing the real fact. Nall v. of those goods for the purpose of giving them to Mi-Granger, 8 Mich. 450. And where suit is brought chaels and not for the purpose of levying the attach- upon a foreign judgmeut, it seems to be competent to ment, and it was not levied, then never mind what the disprove jurisdiction by showing, in coutradiction of officer returned, Michaels would be liable. That is all the officer's return, that no service was made upon the there is in it.

party defendant. Knowles v. Gas-light, etc., Co., 19 “Now you are to determine whether Mr. Grau did Wall. 58; Thompson v. Whilman, 18 id. 457; Carleton v. really levy an attachment ou that property or not. It Bickford, 13 Gray, 596; McDermott v. Clary, 107 Mass. he did, that ends the suits. You are to determine, in 501; Gilman v. Gilman, 126 id. 26; S. C., 30 Am. Rep. the second place, if he did not levy an attachment, 646; Bowler v. Huston, 30 Gratt. 266; 8. C., 32 Am. Rep. whether he and Michaels went there to get the goods 673; Love v. Lowe, 40 Iowa, 220. into Michaels' possession, simply for that purpose, and None of these cases are analogous to the one before not for the purpose of levying the attachment. If us; but it must be conceded that there are cases which Michaels thought that Gnau had attached the goods, are directly in point, and which tend to support the and Guau had the proper papers to attach them-aud instructions. Cunningham v. Mitchell, 4 Rand. 189; for the purposes of this case I charge (you that he did Butts v. Francis, 4 Cong. 424; Watson v. Watson, 6 have—then Michaels would not be responsible; that id. 334; Hutchins v. Johnson, 12 id. 376; Smith v. is, if he was acting in good faith in the transac-Law, 5 Ired. Law, 197; Joyner v. Miller, 55 Miss. 208; tion.

Abell v. Simon, 49 Md. 318; Gary v. State, 11 Tex. App. “You see the question is a very simple one. It all 5:27; Dasher v. Dasher, 47 Ga. 320; Elder v. Cozart, 59 turns on whether Michaels and Gnau went there for id. 199; Jones v. Commercial Bank, 5. How. (Miss.) 43; the purpose of levyiug that attachment, or whether s. C., 35 Am. Dec. 419. The Georgia cases appear to they went there for the purpose of giving Michaels be based upon a statute. If it were important now to possession of those goods, without any regard to the examine the other cases critically, some of them might attachment.

perhaps be distinguished, but their tendency is un“I charge, as a matter of law, it makes no difference questionably as above stated. what the officer returned, 80 far as Michaels was con- On the other hand, the ruling of this court in Green cerned; Michaels bad no direction or supervision over v. Kindy, 43 Mich. 279 (S. C., 5 N. W. Rep. 297), is dishim in making a return; if he never made any return tinctly adverse to the instructions. It was there held ou that attachment at all, that would not hold Michaels that the return of a sheriff to a writ of replevin, in responsible. The only part or object that any of these which he certified that the plaintiff in the suit had not matters have in this suit is as coloring the conduct of filed a forthcoming bond, was conclusive upou the Michaels and the officer together. But if Guau had parties, and would preclude any such bond being set levied that attachment without making any return, up. This case, which seems to have been overlooked Michaels would not be responsible, because he has no on the trial, is in eutire accord with the English aucontrol over the officer. But it is for you to deter

thorities. Anonymous, Lofft. 371; Bently v. Hone, 1 mine, as a matter of fact, whether an attachment was

Lev. 86; Flud v. Pennington, Cro. Eliz. 872; Rex v. really put on."

Elkins, Burr. 2129; Harrington v. Taylor, 15 East, 378; The purport of this instruction is, that the return is

Goubot v. De Crouy, 2 Dowl. P. C. 86. But it is also to be taken as prima facie evidence of the facts stated in accord with the great preponderance of authority in in it, but that it may be contradicted by parol evi- the country. In New York the doctrine was strongly dence, and if the jury are convinced by such evi: asserted in a case in which a constable had served his dence that the return is untrue, they are at liberty to

own process, which the law of that State allowed. disregard it. And the jury in this case did disregard "The constable's return,” say the court, “is conclu. it, and gave judgment for the plaintiff, grounding their sive against the defendant in the cause in which it is

made. He cannot traverse the truth of it by a plea in TITLE TO TIMBER CUT UPON MORTGAGED abatement or otherwise; but if it be false, the defend

LAND ant's remedy is in an action against the constable for a false return." See Allen v. Martin, 10 Wend. 300;

NEW HAMPSHIRE SUPREME COURT. Boomer v. Laine, id. 525. In Pennsylvania it was said in an early case: “It is a well-settled principle, ap

HOWE V. WADSWORTH.* plicable to every case, that credence is to be given to

The right of a mortgagee to timber severed and sold withthe sheriff's returu; so much so that there can be no out his knowledge or consent from mortgaged premises averment against it in the same action. A party can by the mortgagor, is paramount to that of the vendee make au averment consistent with the sheriff's return, having no notice of the mortgage, and he may recover its or explanatory of its legal bearing and effect, where

value of the vendee in trover, the return is at large; but he cannot aver a matter di

A mortgagee is not estopped from claiming mortgaged proprectly at variance with the facts stated in the return,

erty under his mortgage, by reason of having attached

the same property, if at the time of the attachment he and contradictory to it, and showing it to be false. If

had no notice that the property was included within the a party be injured by the false return of the sheriff,

mortgage. the remedy is by action on the case against the sheriff who makes it.” Knowles v. Lord 4 Whart. 500; 8. C.,

TROVER for lumber. Plea, the general issue, with 34 Am. Dec. 525. Like decisions were made in Zion's

a brief statement of justification as the agent and Church v. St. Peter's Church, 5 Watts & S. 215; Diller

servant of Flanders & Pattee, claiming to be the ownF. Roberts, 13 Serg. & R. 60; and the doctrine is recog

ers. Facts found by a referee. Williams sold and denized in Puxson's Appeal, 49 Penn. St. 195. It has

livered to the plaintiff the lumber which he had sev

ered from his land, of which Flanders & Patteo had a also been distinctly and strongly affirmed in Massachusetts cases. Slayton v. Chester, 4 Mass. 478; Bott v.

recorded mortgage, excepting about 300 feet which he Bunnells, 11 id. 163; Winchell v. Stiles, 15 id. 230;

Bean obtained elsewhere, but which was indistinguishably 5. Parker, 17 id. 591; Campbell v. Webster, 15 Gray, 28;

mixed with the other lumber. The lumber was cut Doolly v. Wolcott, 4 Alleu, 406. In New Hampshire it

and sold to the plaintiff without the knowledge or conis said: “As between the parties, the return of the

sent of the mortgagees. The plaintiff bad no notice sberiff is conclusive upon all matters material to be

that the lumber was taken from mortgaged land. The returned, and cannot be contradicted by such parties

money given by the plaintiff for the lumber was paid or their privies, or by bail, indorsers, or others, whose

by Williams to the mortgagees, who applied it upon rights or liabilities are dependeut upon the suit. The

some other debt than that secured by the mortgage.

Flanders and Pattee attached the lumber on a writ remedy for false return is by suit against the sheriff, and not by defeating the proceedings in which such

against Williams by the defendant, a deputy sheriff. return is made." Bolles v. Bowen, 45 N. H. 124; fol

After demand by the plaintiff for the whole lumber, lowing Brown v. Davis, 9 id. 76; Wendell v. Mugridge,

and refusal to surrender the lumber, the defendant, 19 id. 112; Angier v. Ash, 26 id. 99; Messer v. Bailey, 31

having the mortgage and note, and acting as the mortid. 9; Clough v. Monroe, 34 id. 381. To the same pur

gagee's servant, seized and sold the lumber on the port are the Kentucky cases. Trigg v. Lewis' Ex'rs,

mortgage. The question raised is the plaintiff's right

to recover. 3 Litt. 129; Smith v. Hornback, 3 A. K. Marsh. 392. In Vermont and Maine the cases in Massachusetts have Morrison & Bartlett, for plaintiff. been followed with approval. Eastman v. Curtis, Barnard & Leach and W. W. Flanders, for defendVt. 616; Swift v. Cobb, 10 id. 282; Wood v. Doane, 20 id.

ant. 612; Stratton v. Lyons, 53 id. 130; Gilson v. Parkhurst, id. 384; Stinson v. Snow, 10 Me. 263;Fairfield v. Paine,

ALLEN, J. A mortgagor in possession has no right 23 id. 496; S. C., 41 Am. Dec. 357. The decisions in

to remove fixtures from the mortgaged estate, and for Indiana are to the same effect. Rowell v. Klein, 44

their removal the mortgagee may maintain trespass Ind. 290; Splahn v. Gillespie, 48 id. 397; Stockton v.

quare clausum (Pettengill v. Evans, 5 N. H. 54), or Stockton, 59 id. 574; Clark v. Shaw, 79 id. 164. So are

against the assignee of the mortgagor, if the removal those in North Carolina, Arkansas, Minnesota and

is by him. Smith v. Goodwin, 2 Greenl. 173. And in Nebraska. Hunter v. Kirk, 4 Hawks, 277; Rosa v.

general, for the protection of the interest of the mortFord, 2 Ark. 26; Tullis v. Brawley, 3 Minn. 277 (Gil.

gagee, he has the legal estate, though for many other 191); Johnson v. Jones, 2 Neb. 126. In Illinois the

purposes the mortgage is a mere security for the debt Euglish rule has been recognized (Fitzgerald v. Kim

and only a chattel interest. Sutherin v. Mendum, 5 N. ball, 86 111. 316), though it is said some exceptions are

H. 420, 4:29; Glass v. Ellison, 9 id. 69; Smith v. Moore, made to it in furtherapce of justice in that State.

11 id. 55, 61, 63; Morrison v. Manchester, 58 id. 538, 561. Ryan v. Lander, 89 I11. 554. What the exceptions are

Having the legal interest in the estate for the purpose is not pointed out in that case; but in the subsequent

of protecting his security, and being entitled to the case of Hunter v. Stoneburner, 92 111. 75-79, we have the

full benefit of the entire mortgaged estate for the full following statement as the result of prior decisions:

payment of his debt, the mortgagee may follow and "It is in rare cases only that return of the officer can

recover any part of the mortgaged property, removed be contradicted, except in a direct proceeding by suit

without his consent, whenever and in whosesoover against the officer for a false return. In all other cases,

hands it may be found, either by retaking it, or by almost without an exception, the return is held to be

action of trover for damages. Smith v. Moore, 11 N. conclusive. An exception to the rule is, where some

H. 55, 61, 63; Cole v. Stewart, 11 Cush. 181; Byrom v. other portion of the record in the same case contra

Chapin, 113 Mass. 308; Gooding v. Shea, 103 id. 360; dicts the return; but it cannot be done by evidence

Laflin v. Griffiths, 35 Barb. 58; Hoskin v. Woodward, dehors the record."

45 Penn. St. 42; Hitchman v. Walton, 4 Mee. & W.

409. These citations are sufficient, and more than sufficient, to justify the previous ruling by this court. It

The plaintiff, by his purchase, acquired no more title follows that the instruction complained of was erron

to the lumber than the mortgagor bad. The commereous, and it must be reversed, with costs, and a new

cial rule, which protects negotiable paper in the hands trial ordered.

of an innocent purchaser, without notice of infirmity of Graves, C. J., and Sherwood, J., concurred. Camp

title, does not extend to the sale of chattels; and the bell, J., dissented.

* To appear in 59 New Hampshire Reports.


plaintiff, by his purchase, acquired no title to the lum- v. Pike, 2 Greenl. 387; Page v. Robinson, 10 Cush. 99; ber, if it was removed and sold without the knowl- Langdon v. Paul, 22 Vt. 205. edge or consent of the mortgagees. The three hundred feet of lumber, not included in the mortgage, was so mingled with the mortgaged lumber as to be UNITED STATES SUPREME COURT ABindistinguishable from it, and until pointed out and

STRACT. claimed by the owner, might be taken and held by the mortgagees. Gilman v. Hill, 36 N. H. 311; Robin

CONTRACT-ILLEGAL-FUTURE DELIVERY--CUSTOM.son v. Holt, 39 id. 557 : Taylor v. Jones, 42 id. 32.

(1) The generally accepted doctrine in this country Tbough a demand was made for the whole lumber, it

is, that a contract for the sale of goods to be delivered does not appear from the case that the mortgaged part

at a future day is valid, even though the seller has not was pointed out, identified, or claimed by the plaintiff the goods, nor any other means of getting them than before suit.

to go into the market and buy them; but such a conThe attachment of the lumber by the defendant, on tract is only valid when the parties really intend and a writ in favor of the mortgagees, did not estop him agree that the goods are to be delivered by the seller from setting up the defense of a taking and sale under and the price to be paid by the buyer; and if under the mortgage by him as the mortgagees' agent, unless

guise of such a contract, the real intent be merely to the attachment was made with notice to the mortga

speculate in the rise or fall of prices, and the goods are gees of their rights under the mortgage. How

not to be delivered, but one party is to pay to the ever that may have been, if they had knowledge other the difference between the contract price and of their title at the time of the attachment, they

the market price of the goods at the date fixed for execould not afterward set up a claim under the mort

cuting the contract, then the whole transaction congage. If they received the money which came from

stitutes nothing more than a wager, and is null and the sale of the lumber, with a kuowledge of its source

void. Benjamin on Sales, $$ 541, 542 and notes to 4th aud of their rights under the mortgage, they could Am. ed. by Benuett; Dickson's Exr. v. Thomas, 97 not afterward deny a consent to the sale, though the

Penn. St. 278; Gregory v. Wendell, 40 Mich. 432; Lyon money was not applied on the mortgage debt.

v. Culbertson, 83 Ill. 33; 25 Am. Rep. 349; Melchert v. Whether the mortgagees, or the defendant as their | Am. Union Tel. Co., 3 McCrary, 521; S. C., 11 Fed. agent, had notice at the time of the attachment that

Rep. 193, and note; Barnard v. Bockhaus, 52 Wis. 593; the lumber came from the mortgaged premises, or

Kingsbury v. Kirwan, 77 N. Y. 612; Story v. Salomon, whether they knew that the money paid them by the 71 id. 420; Love v. Harvey, 114 Mass. 80. In Reed mortgagor, Williams, was a part of the purchase-price

Anderson, 48 L. T. (N. S.) 74, the defendant was of the lumber, does not appear by the case. The re

nevertheless adjudged liable to refund to the plaintif port may be recommitted to give the plaintiff an op- the amount lost by the latter by a bet on a horse race, portunity to show that the mortgagees bad knowl- made in his own name, but for the defendant, at his edge or notice in either particular. On the facts

request; and this was followed in Thacker v. Hardy, now appearing, there must be judgment for the de- 40. B. D. 685; 29 Eng. R. 117. The charge of the court fendant.

however is objected to on behalf of the plaintiff in Case discharged.

error as misleading by the statement embodied in it, See also upon the question considered in the opin

that “on their face these transactions are legal." We ion:

presume that nothing more was meant by this than Brown v. Cram, 1 N. H. 169; M'Murphy v. Minot, 4

what had just before been said in the charge, that the id. 251; Ellison v. Daniels, 11 id. 284; Parish v. Gil

burden of proof to show the illegality of the transacmanton, id. 293; Riguey v. Lovejoy, 13 id. 247; Great

tions was upon the defendant, who affirmed it, the Falls Co. v. Worster, 15 id. 412; Gilsum v. Sullivan, 36 presumption being that men ordinarily in their busiid. 368; Sissous v. Bicknell, 6 id. 559; Kelly v. Burn

ness transactions do not intend to violate the law. (2) ham, 9 id. 20; Lane v. Sleeper, 18 id. 209; Whittemore

It was error to permit proof of a custom, without eri. v. Gibbs, 24 id. 484; Wilson v. Kimball, 27 id. 300;

dence that the defendant below had knowledge of it, Blake v. Williams, 36 id. 40; Bell v. Morse, 6 id. 206;

and in not instructing the jury to disregard it, if they Smith v. Smith, 15 id. 55; Weeks v. Eaton, id. 148;

were satisfied from the evidence that such knowledge Dearborn v. Taylor, 18 id. 153; Hobson v. Riles, 20 id.

had not been satisfactorily shown. Nickalls v. Merry, 41; Furbush v. Goodwin, 25 id. 425, 450; Lamprey v.

L. R., 7 H. L. 530; Robinson v. Mollett, id. 802. Irwin Nudd, 29 id. 299; Currier v. Webster, 45 id. 234 ; Jack

v. Williar. Opinion by Matthews, J. son v. Lodge, 36 Cal. 28; United States v. Athens

[Decided March 3, 1884. ] Armory, 35 Ga. 344; Whitmore v. Shiverick, 3 Nev. 288; Clawson v. Eichbaum, 2 Grant's Cas. 130; Trus. OFFICER-PUBLIC-RIGHT TO FEES RECEIVED ABOVE of Union College v. Wheeler, 61 N. Y. 88; Timms v. SALARY-COMMISSIONS ON SALES. -A receiver of publio Shannon, 19 Md. 296; Dutton v. Warschauer, 21 Cal. moneys is not entitled to the military bounty land fees 609; Mack v. Wetzlar, 39 id. 247; Drake v. Root, 2 received by him during his term of office, over and Col. 685; Cooch v. Gerry, 3 Har. (Del.) 280; Burnside above the amount required, with his commissions on v. Terry, 45 Ga. 621; Vallette v. Bennett, 69 Ill. 632; cash sales of public lands, to make up his annual sal. Chick v. Willetts, 2 Kaus. 384; Duclaud v. Rousseau, 2 ary. United States v. Babbitt, 1 Black, 55; 95 C. S. La. Ann. 168; Caruthers v. Humphrey, 12 Mich. 270; 335. In the present case the employment was for a Gorham v. Arnold, 22 id. 247; Adams v. Corriston, 7 special service in connection with a special trust asMinn. 456; Stanard v. Eldridge, 16 Johns. 254; Givens sumed by the United States for the benefit of certain v. M'Calmont, 4 Watts. (Pa.) 460; Harder v. Harder, Indian tribes, in which express provisions were made 26 Barb. 414; Hickman v. Irvine, 3 Dana (Ky.), 121; for the payment of expenses. In legal effect, the apJackson v. Brownson, ï Johus. 227; Smith v. Poyas, 2 pointment was to an agency for the sale of lands for Des. (S. C.) 65; Keeler v. Eastman, 11 Vt. 293; More- the Indians, with an implied understanding that a house v. Cotheal, 22 N. J. (L.) 521; Drown v. Smith, 52 reasonable compensation would be paid for the services Me. 141; McCullough v. Irvine, 13 Penn. St. 438; Hagar rendered. So far as any thing appears in the record, v. Brainerd, 44 Vt. 294; Southworth v. Van Pelt, 3 the appointment was not made because Brindle was Barb. 347 ; Hampton v. Hodges, 8 Ves. Jr. 105; Van receiver of the land office. The duties to be performed Pelt v. McGraw, 4 Comst. 110; Peterson y. Clark, 15 were of a different character and at a different place Johns. 205; Wakeman v. Banks, 2 Coun. 445; Stowell from those of the land office, and while the exact amount of compensation for this service was not fixed, and so much of the interest arising therefrom as may it was clearly to be inferred that such compensation as remain in the hands of said M. unexpended, shall go the law implies where labor is performed by one at to the support and managemeut of such worthy and the request of another, would be paid. This case meritorious charitable and educational and religious comes therefore within the rule in Converse v. United institutions of the Roman Catholic faith as said M. States, 21 How. 463, and Brindle is not excluded by may determine." Held, that this provision was not the act of 1852 from demanding compensation for this void for uncertainty. It is competent for a testator to service by reason of his being receiver of the land bestow a charity upon a person or institution to be cho. office. United States v. Brindle. Opinion by Waite, sen or named by a trustee or executor. In that case C. J.

there is no uncertainty of the beneficiary, for the [Decided March 3, 1884.]

courts, when called upon to enforce the testament, will

be advised of the direction of the charity by the act or GRANT-PUBLIC-PRESUMPTION-SWAMP-LAND ACT declaration of the trustee or executor. Wills provid1850_APPLICABLE TO THEN EXISTING STATES—TITLE. ing for the distribution and appropriation of charities -Donations of the public domain for any purpose are in this manner are always upheld by the courts. never to be presumed. Those who claim against the Perry Trusts, $ 731; 2 Redf. Wills (2d ed.), 530-535; government under legislative grants must show a clear Heskith v. Murphy, 35 N. J. Eq. 23; Wells v. Doane, 3 title. The grant under the act of 1850 was to Arkan

Gray, 201; Brown v. Kelsey, 2 Cush. 243; Salterstall sas and “the other States of the Union.” The Swamp- v. Sanders, 11 Allen, 246; First Universalist Society of Land Act of 1850 operated as a grant in præsenti to the North Adams v. Fitch, 8 Gray, 421; Going v. Emery, States then in existence of all the swamp lands in 16 Pick. 107; Miller v. Teachout, 24 Ohio St. 525; their respective jurisdictions. Railroad Company v. American Tract Soo. v. Atwater, 30 id. 77; De Smith, 9 Wall. 95; French v. Fyan, 93 U. S. 171; Mar

Bouler v. Ferguson, 54 Ind. 549; Commissioners of tin v. Marks, 97 id. 345. As Minnesota was a territory Lagrange Co. v. Rogers, 55. id. 297 ; Pickering v. Shotin 1830, the title to the swamp lands within its terri- well, 10 Penn. St. 23; Witman v.Lex, 17 Serg. & R. 88; torial limits did not pass out of the United States at Beaver v. Tilson, 6 Penn. St. 327; Perin v. Carey, 24 that time, because there was then no grantee in ex- How. 465; Loring v. Marsh, 6 Wall, 337. Quinn v. istence. It is contended however that on its admis- Shields. Opinion by Beck, J. sion into the Union in 1858, the grant carried the title to the State, as against the United States and subse

WAGER-WHEN ACTION WILL LIE AGAINST STAKEquent grantees, from the date of the original act, or at HOLDER.-Although the wager be illegal, if the stakeleast from the date of the admission of the State. As holder has paid it over to the winner before notice or the act of 1850 related only to States in existence when

demand against him by the loser, he is exonerated. 2 it was passed, it was locally inapplicable to Minnesota

Pars. Cont. 627. When the wager was made both paruntil its provisions were actually extended to that

ties consented that the amount wagered should be State by the act of March 12, 1860. It follows that the paid to the winning party, and it was not essential title of the railroad company under the act of 1857 is

such conseut should be given again. The first quessuperior to that of the appellant. The lands were not

tion must be answered in the affirmative. But it has at the time of the passage of that act reserved to the been held that where the stakeholder has been notified United States for any purpose, and they were not not to pay over the wager, and he has not done so at therefore excepted from its operation. Rice v. Rail

the time he is notified, then a recovery may be had. road Co. Opinion by Waite, C. J.

Shannon v. Baumer, 10 Iowa, 210; Thrift v. Redman, [Decided March 3, 1884.]

13 id. 25; Adkins v. Flemming, 29 id. 122. Oker

son v. Crittenden. Opinion by Seevers, J. MUNICIPAL BONDS-BONA FIDE PURCHASER-EXCES

REPLEVIN-WHEN WILL NOT LIE-PROPERTY NOT SIVE ISSUE.-Bonds issued by counties in Missouri,

SUSCEPTIBLE OF DIVISION.--An action of replevin will during the years 1870 and 1871, in payment of subscrip

not lie for an updivided interest in a growing crop of tions to the stock of railroad companies without a

grain. It is well settled that where chattels of the vote of the people, are valid if the subscription was

same nature and quality belonging to different owners made under authority granted before the adoption of

are mingled in one mass, any owner may claim his alithe Constitution of 1865 which did not require such a

quot part by replevin. Kaufman v. Schilling, 58 Mo. vote to be taken. In Marcy v. Township of Oswego,

218; Inglebright v. Hammond, 19 Ohio, 337; Ryder v. 92 U. S. 637, and Humboldt Township v. Long, id.

Hathaway, 21 Pick. 305; Young v. Miles, 20 Wis. 615; 642, followed in Wilson v. Salamanca, 99 id. 504, it was

Kimberly v. Patchin, 19 N.Y. 330. But where the propexpressly decided that municipal bonds were not in.

erty of jointfowners is not susceptible of division, as in valid in the hands of a bona fide holder, by reason of

case of a growing crop,or in case of the joint ownership their having been voted and issued in excess of the

of a single piece of property, replevin will not lie by one statutory limit, if the recitals imported a valid issue.

joint owner, because the property sought to be recovIt is admitted in this case that McKenzie, the defend

ered is not susceptible of seizure and delivery to the ant in error, is a bona fide holder for value of the

plaintiff. Wells Rep. 88, 89. Jones v. Dodge, 61 Mo. coupons sued on, and the recitals, imply authority for

368, was an action in replevin to recover a part of a the issue of the bonds from which they were cut.

crop of corn standing ungathered in a field. It was Consequently, the excessive issue is no defense.

held that a division of the crop by an officer was not County y. Douglas, 105 U. 8. 728. Dallas v. McKenzie.

practicable, and that the action would not lie, and Opinion by Waite, C. J.

that to maintain the action the property must be (Decided March 3, 1884.]

such as can be seized by the officer and delivered to the plaintiff. Read v. Middleton. Opinion by Roth



REPEAL.-The provision of a general State statute that WILL-CHARITABLE USE-WHEN NOT VOID FOR UN

land devoted to cultivation of forest trees should be CERTAINTY.-A testator devised and bequeathed cer

exempt from taxation held repealable by the Legislatain property to M. for life, and further provided : “I

ture. It appears to be well settled that where an exdesire, and my will is, that the priucipal mentioned, emption from taxation is provided for by the general

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