would give relief whenever common law clearly left a right without a remedy; and he was for affirmance on the merits of the case. Senator Hopkins was for affirmance on account of the local character of the Superior Court, distinctly declining to pass upon the broader question. Senator Lott was for affirmance on all of the above grounds. Senator Porter was with the chancellor. Two senators dissented. The others said nothing. The case therefore upon this point consists but of three dicta.

The question was first actually settled by the highest court of New York in 1880 in the case of American Union Tel. Co. v. Middleton, 80 N. Y. 408, but the court did not understand that this was the first decision. It simply and unquestioningly followed Watts v. McKinney. There was no discussion in the opinion, and no full discussion in the brief. In fact the brief of the defeated party practically conceded the principle, 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.

Chancellor Walworth had rested himself partly upon "the statute " as authority for his dicta. Successful counsel in the last-mentioned case, and the court in its opinion, repeat his words. What was this statute? Simply 2 R. S. 409, § 2 (1). "Action for trespass on land and action for trespass in the case of injuries to real estate shall be tried in the county where the subject of the action shall be situated." If counsel or judge had looked up this statute in 1880, instead of taking it on trust, he would have found (1) that it had been settled to be of no application (Newton v. Bronson, 13 N. Y. 587, 592; Gardner v. Ogden, 22 id. 327, 339); (2) that it had been repealed. The Code, now in force in its place, laid down that while in general the action of waste (among others) must be tried in the county where the land is situated, yet "where all the real property to which the action relates is situated without the State," the action must be tried in the county where one of the parties resides. Code Civ. Pro., §§ 982, 984. This section was brought to the attention of the Court of Appeals in Cragin v. Lovell. Here was a chance to escape the former decisions. Either (1) section 982 does not concern the jurisdiction of the courts, in which case part of the authority of the formerNew York cases falls away; or (2) it does concern jurisdiction, in which case they are overruled. But the court, while taking the former ground, still upheld the American Union Tel. case, saying that the section could not there have been overlooked, ergo its construction was settled; whereas, as we have seen, the court and counsel actually relied on a statute superseded by it, repealed thirty years before! Somewhere or other the remedial power of equity, on which Chancellor Walworth relied to counteract the effect of his commonlaw technicalities, has been lost. Perhaps we should say that in 1882, rather than in 1880, New York finally bound herself to the middle ages, and became an Alsatia in this respect from chancery as well as from law. New York, then, cannot repair a tort to real property in Louisiana for such causes as these:

1. Jurors were once witnesses as well.

2. Lord Mansfield was so powerful that people often dared not appeal from his nisi prius decisions. 3. Lord Kenyon was a technical old tory.

4. It was not advisable for Livingston to appeal against an ex-president of the United States.

5. A certain case in 1880 was carelessly briefed. 6. The Court of Appeals in 1880 supposed a certain principle to be settled in New York State, which was

not.

7. The Court of Appeals in 1882 supposed that a certain case had been carefully considered, when in fact it had not been.

Truly must each rule of the "unwritten" law be

studied historically — studied in view of the peculiarities of deceased judges, the carelessness of deceased lawyers, the special hardships of deceased suitors, and the special forms of forgotten institutions.

I ask the Court of Appeals, and the shades of such other American jurists as Judge Story and the Massachusetts courts, who have followed Doulson v. Matthews without much discussion, whether the law was really best" enshrined" by them, or by Lord Mausfield and by his American followers, who by statute or decision have dubbed this principle of ours an "absurd rule." Oliver v. Loye, 59 Miss. 320, 323.

In Spanish "loco" means a lunatic. Perhaps a "local" action is by derivation one whose character is madness-inspired madness, in deference to the "unwritten law," let us call it. E. B. W.

B. T. Prentis, for plaintiff.

Wm. B. Jackson, for defendant.

COOLEY, J. The only question important to the decision of this case is, whether an officer's return of service of process is conclusive upon the parties to the suit in which the process issued, when brought in question in some collateral suit or proceeding. Michaels, it appears, on August 10, 1874, procured an attachment from a justice of the peace against the chattels of Stork, and put it into the hands of Constable John Gnau for service. The constable made return that by virtue of the writ he did, on the 10th day of August, 1874, seize the goods and chattels of the defendant mentioned in the inventory annexed thereto, and that on the 12th day of August, 1874, he served upon the defendant a copy of the writ and inventory, duly certified by him, by leaving the same at his usual place of abode with his wife, a person of suitable age and discretion, whom he informed of its contents. What further was done in the attachment suit does not appear. The present action is trover for the conversion of the property which the constable returned that he had attached. The plaintiff claims that the constable did not attach the goods at all, but that the officer and the defendant together took them away, and that they were immediately left by the officer with the defendant, and plaintiff never saw them afterward. The officer was a witness in the cases and testified to having attached the goods and handed them over to defendant for safe keeping; and the plaintiff, in his testimony, admitted that the officer told him there was an attachment on the goods at the time he and the defendant took them. It was contended however that the constable was not acting in good faith, and that the seizure of the goods was a mere pretense to get them into the possession of defendant.

The question in this court arises upon the following instructions of the trial judge:

"If Mr. Gnau made a levy upon those goods, seized them under an attachment, and they were in his possession, and he delivered up the possession of them

afterward to Michaels, if that is all that took place, then Michaels is not liable; he would not be liable in trover, nor would he be liable in trespass. On the other hand, if this was a mere scheme between Gnau and Michaels to get possession of those goods and the writ of attachment was not levied in good faith upon the goods, but the mere determination was to get the goods in Michaels' possession, and Michaels and Gnau understood it and did it for that purpose and no other purpose, then Michaels would be liable.

"So you see, gentlemen, it is a matter of a good deal of importance to determine, in the first place, whether Mr. Gnau really served this writ of attachment on those goods. It does not make any difference whether he pursued the proper steps or not, because Michaels would not be responsible for the conduct of the officer in that regard, unless he was an active participant in it and directed the officers to do that which was against the law.

"Now Mr. Gnau's duty undoubtedly was, when he seized those goods, to take them in his possession, or put them in the possession of somebody who acted as his agent. The object of attachment is to seize the goods and have them forthcoming at the end of suit, provided judgment is taken.

"Now if he put an attachment on the goods, really seized them, and you find the evidence shows that, that is the end of this case. I do not care what was done afterward; sufficient for the purposes of this case, neither the action of trespass nor of trover would lie. But if he and Michaels went there and took possession of those goods for the purpose of giving them to Michaels and not for the purpose of levying the attachment, and it was not levied, then never mind what the officer returned, Michaels would be liable. That is all there is in it.

"Now you are to determine whether Mr. Gnau did really levy an attachment ou that property or not. If he did, that ends the suits. You are to determine, in the second place, if he did not levy an attachment, whether he and Michaels went there to get the goods into Michaels' possession, simply for that purpose, and not for the purpose of levying the attachment. If Michaels thought that Gnau had attached the goods, and Guau had the proper papers to attach them-aud for the purposes of this case I charge [you that he did have-then Michaels would not be responsible; that is, if he was acting in good faith in the transaction.

You see the question is a very simple one. It all turns on whether Michaels and Gnau went there for the purpose of levying that attachment, or whether they went there for the purpose of giving Michaels possession of those goods, without any regard to the attachment.

"I charge, as a matter of law, it makes no difference what the officer returned, so far as Michaels was concerned; Michaels had no direction or supervision over him in making a return; if he never made any return on that attachment at all, that would not hold Michaels responsible. The only part or object that any of these matters have in this suit is as coloring the conduct of Michaels and the officer together. But if Guau had levied that attachment without making any return, Michaels would not be responsible, because he has no control over the officer. But it is for you to determine, as a matter of fact, whether an attachment was really put on."

The purport of this instruction is, that the return is to be taken as prima facie evidence of the facts stated in it, but that it may be contradicted by parol evidence, and if the jury are convinced by such evidence that the return is untrue, they are at liberty to disregard it. And the jury in this case did disregard it, and gave judgment for the plaintiff, grounding their

action upon a finding that no attachment had in fact ever been made. Had the suit been brought against the officer for a false return, it is conceded that the plaintiff would have been at liberty to show the falsity of the return by any evidence fairly tending to show it. He might do this also by affidavit, on a motion in the same suit to set aside the return; and this is not an uncommon proceeding when the truth of the return is disputed. Chapman v. Cummings, 17 N. J. 11; Carr v. Commercial Bank, 16 Wis. 50; Bond v. Wilson, 8 Kans. 228; S. C., 12 Am. Rep. 456. It has also been held that the officer's return may be contradicted in equity in a proceeding instituted to set aside a judgment founded upon it. Owens v. Ranstead, 22 III. 161; Newcomb v. Dewey, 27 Iowa, 381; Bridgeport Savings Bank v. Eldredge, 28 Conn. 556; Bell v. Williams, 1 Head, 229; Ridgeway v. Bank of Tennessee, 11 Humph. 523. See Fowler v. Lee, 10 Gill. & J. 358; S. C., 32 Am. Dec. 172; Leftwick v. Hamilton, 9 Heisk. 310. It is also held that the officer's return is not conclusive as to facts stated therein, which he must learn by inquiry of others; as for example, that the person upon whom the process was served was the incumbent of a certain corporate office, such as that of president of a bank. St. John v. Tombeckbee Bank, 3 Stew. 146; Rowe v. Table, etc., Co., 10 Cal. 441; Wilson v. Spring, etc., Co., id. 445. See, Chapman v. Cunning, 2 Har. 11; Sanford v. Nichols, 14 Conn. 324; and compare State v. O'Neill, 4 Mo. App. 221. And a person not a party or privy to the proceeding in which the return is made, is never concluded by it from showing the real fact. Nall v. Granger, 8 Mich. 450. And where suit is brought upon a foreign judgment, it seems to be competent to disprove jurisdiction by showing, in contradiction of the officer's return, that no service was made upon the party defendant. Knowles v. Gas-light, etc., Co., 19 Wall. 58; Thompson v. Whitman, 18 id. 457; Carleton v. Bickford, 13 Gray, 596; McDermott v. Clary, 107 Mass. 501; Gilman v. Gilman, 126 id. 26; S. C., 30 Am. Rep. 646; Bowler v. Huston, 30 Gratt. 266; S. C., 32 Am. Rep. 673; Lowe v. Lowe, 40 Iowa, 220.

None of these cases are analogous to the one before us; but it must be conceded that there are cases which are directly in point, and which tend to support the instructions. Cunningham v. Mitchell, 4 Rand. 189; Butts v. Francis, 4 Conn. 424; Watson v. Watson, 6 id. 334; Hutchins v. Johnson, 12 id. 376; Smith v. Law, 5 Ired. Law, 197; Joyner v. Miller, 55 Miss. 208; Abell v. Simon, 49 Md. 318; Gary v. State, 11 Tex. App. 527; Dasher v. Dasher, 47 Ga. 320; Elder v. Cozart, 59 id. 199; Jones v. Commercial Bank, 5 How. (Miss.) 43; S. C., 35 Am. Dec. 419. The Georgia cases appear to be based upon a statute. If it were important now to examine the other cases critically, some of them might perhaps be distinguished, but their tendency is unquestionably as above stated.

On the other hand, the ruling of this court in Green v. Kindy, 43 Mich. 279 (S. C., 5 N. W. Rep. 297), is distinctly adverse to the instructions. It was there held that the return of a sheriff to a writ of replevin, in which he certified that the plaintiff in the suit had not filed a forthcoming bond, was conclusive upon the parties, and would preclude any such bond being set up. This case, which seems to have been overlooked on the trial, is in entire accord with the English authorities. Anonymous, Lofft. 371; Bently v. Hone, 1 Lev. 86; Flud v. Pennington, Cro. Eliz. 872; Rex v. Elkins, Burr. 2129; Harrington v. Taylor, 15 East, 378; Goubot v. De Crouy, 2 Dowl. P. C. 86. But it is also in accord with the great preponderance of authority in the country. In New York the doctrine was strongly asserted in a case in which a constable had served his own process, which the law of that State allowed. "The constable's return," say the court, "is conclusive against the defendant in the cause in which it is

made. He cannot traverse the truth of it by a plea in abatement or otherwise; but if it be false, the defendaut's remedy is in an action against the constable for a false return." See Allen v. Martin, 10 Wend. 300; Boomer v. Laine, id. 525. In Pennsylvania it was said in an early case: "It is a well-settled principle, applicable to every case, that credence is to be given to the sheriff's return; so much so that there can be no averment against it in the same action. A party can make an averment consistent with the sheriff's return, or explanatory of its legal bearing and effect, where the return is at large; but he cannot aver a matter directly at variance with the facts stated in the return, and contradictory to it, and showing it to be false. If a party be injured by the false return of the sheriff, the remedy is by action on the case against the sheriff who makes it." Knowles v. Lord 4 Whart. 500; S. C., 34 Am. Dec. 525. Like decisions were made in Zion's Church v. St. Peter's Church, 5 Watts & S. 215; Diller v. Roberts, 13 Serg. & R. 60; and the doctrine is recognized in Paxson's Appeal, 49 Penn. St. 195. It has also been distinctly and strongly affirmed in Massachusetts cases. Slayton v. Chester, 4 Mass. 478; Bott v. Bunnells, 11 id. 163; Winchell v. Stiles, 15 id. 230; Bean v. Parker, 17 id. 591; Campbell ▼. Webster, 15 Gray, 28; Doolly v. Wolcott, 4 Allen, 406. In New Hampshire it is said: "As between the parties, the return of the sheriff is conclusive upon all matters material to be returned, and cannot be contradicted by such parties or their privies, or by bail, indorsers, or others, whose rights or liabilities are dependent upon the suit. The remedy for false return is by suit against the sheriff, and not by defeating the proceedings in which such return is made." Bolles v. Bowen, 45 N. H. 124; following Brown v. Davis, 9 id. 76; Wendell v. Mugridge, 19 id. 112; Angier v. Ash, 26 id. 99; Messer v. Bailey, 31 id. 9: Clough v. Monroe, 34 id. 381. To the same purport are the Kentucky cases. Trigg v. Lewis' Ex'rs, 3 Litt. 129; Smith v. Hornback, 3 A. K. Marsh. 392. In Vermont and Maine the cases in Massachusetts have been followed with approval. Eastman v. Curtis, 4 Vt. 616; Swift v. Cobb, 10 id. 282; Wood v. Doane, 20 id. 612; Stratton v. Lyons, 53 id. 130; Gilson v. Parkhurst, id. 384; Stinson v. Snow, 10 Me. 263; Fairfield v. Paine, 23 id. 496; S. C., 41 Am. Dec. 357. The decisions in Indiana are to the same effect. Rowell v. Klein, 44 Ind. 290; Splahn v. Gillespie, 48 id. 397; Stockton v. Stockton, 59 id. 574; Clark v. Shaw, 79 id. 164. So are those in North Carolina, Arkansas, Minnesota and Nebraska. Hunter v. Kirk, 4 Hawks, 277; Rosa v. Ford, 2 Ark. 26; Tullis v. Brawley, 3 Minn. 277 (Gil. 191); Johnson v. Jones, 2 Neb. 126. In Illinois the English rule has been recognized (Fitzgerald v. Kimball, 86 Ill. 316), though it is said some exceptions are made to it in furtherance of justice in that State. Ryan v. Lander, 89 Ill. 554. What the exceptions are is not pointed out in that case; but in the subsequent case of Hunter v. Stoneburner, 92 Ill. 75-79, we have the following statement as the result of prior decisions: "It is in rare cases only that return of the officer can be contradicted, except in a direct proceeding by suit against the officer for a false return. In all other cases, almost without an exception, the return is held to be conclusive. An exception to the rule is, where some other portion of the record in the same case contradicts the return; but it caunot be done by evidence dehors the record."

The right of a mortgagee to timber severed and sold without his knowledge or consent from mortgaged premises by the mortgagor, is paramount to that of the vendee having no notice of the mortgage, and he may recover its value of the vendee in trover.

A mortgagee is not estopped from claiming mortgaged property under his mortgage, by reason of having attached the same property, if at the time of the attachment he had no notice that the property was included within the mortgage.

TROVER for lumber. Plea, the general issue, with

a brief statement of justification as the agent and servant of Flanders & Pattee, claiming to be the owners. Facts found by a referee. Williams sold and delivered to the plaintiff the lumber which he had severed from his land, of which Flanders & Patteo had a recorded mortgage, excepting about 300 feet which he obtained elsewhere, but which was indistinguishably mixed with the other lumber. The lumber was cut and sold to the plaintiff without the knowledge or consent of the mortgagees. The plaintiff had no notice that the lumber was taken from mortgaged land. The money given by the plaintiff for the lumber was paid by Williams to the mortgagees, who applied it upon some other debt than that secured by the mortgage.

Flanders and Pattee attached the lumber on a writ against Williams by the defendant, a deputy sheriff. After demand by the plaintiff for the whole lumber, and refusal to surrender the lumber, the defendant, having the mortgage and note, and acting as the mortgagee's servant, seized and sold the lumber on the mortgage. The question raised is the plaintiff's right

to recover.

Morrison & Bartlett, for plaintiff.

Barnard & Leach and W. W. Flanders, for defend

ant.

ALLEN, J. A mortgagor in possession has no right to remove fixtures from the mortgaged estate, and for their removal the mortgagee may maintain trespass quare clausum (Pettengill v. Evans, 5 N. H. 54), or against the assignee of the mortgagor, if the removal is by him. Smith v. Goodwin, 2 Greenl. 173. And in general, for the protection of the interest of the mortgagee, he has the legal estate, though for many other purposes the mortgage is a mere security for the debt and only a chattel interest. Sutherin v. Mendum, 5 N. H. 420, 429; Glass v. Ellison, 9 id. 69; Smith v. Moore, 11 id. 55, 61, 63; Morrison v. Manchester, 58 id. 538, 561. Having the legal interest in the estate for the purpose of protecting his security, and being entitled to the full benefit of the entire mortgaged estate for the full payment of his debt, the mortgagee may follow and recover any part of the mortgaged property, removed without his consent, whenever and in whosesoever hands it may be found, either by retaking it, or by action of trover for damages. Smith v. Moore, 11 N. H. 55, 61, 63; Cole v. Stewart, 11 Cush. 181; Byrom v. Chapin, 113 Mass. 308; Gooding v. Shea, 103 id. 360; Laflin v. Griffiths, 35 Barb. 58; Hoskin v. Woodward, 45 Penn. St. 42; Hitchman v. Walton, 4 Mee. & W. 409.

The plaintiff, by his purchase, acquired no more title to the lumber than the mortgagor had. The commercial rule, which protects negotiable paper in the hands of an innocent purchaser, without notice of infirmity of title, does not extend to the sale of chattels; and the

* To appear in 59 New Hampshire Reports.

plaintiff, by his purchase, acquired no title to the lumber, if it was removed and sold without the knowledge 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 indistinguishable from it, and until pointed out and claimed by the owner, might be taken and held by the mortgagees. Gilman v. Hill, 36 N. H. 311; Robinson v. Holt, 39 id. 557: Taylor v. Jones, 42 id. 32. Though a demand was made for the whole lumber, it does not appear from the case that the mortgaged part was pointed out, identified, or claimed by the plaintiff

before suit.

The attachment of the lumber by the defendant, on a writ in favor of the mortgagees, did not estop him from setting up the defense of a taking and sale under the mortgage by him as the mortgagees' agent, unless the attachment was made with notice to the mortgagees of their rights under the mortgage. However that may have been, if they had knowledge of their title at the time of the attachment, they could not afterward set up a claim under the mortgage. If they received the money which came from the sale of the lumber, with a knowledge of its source and of their rights under the mortgage, they could not afterward deny a consent to the sale, though the money was not applied on the mortgage debt.

Whether the mortgagees, or the defendant as their agent, had notice at the time of the attachment that the lumber came from the mortgaged premises, or whether they knew that the money paid them by the mortgagor, Williams, was a part of the purchase-price of the lumber, does not appear by the case. The report may be recommitted to give the plaintiff an opportunity to show that the mortgagees had knowledge or notice in either particular. On the facts now appearing, there must be judgment for the defendant.

Case discharged.

See also upon the question considered in the opinion:

Brown v. Cram, 1 N. H. 169; M'Murphy v. Minot, 4 id. 251; Ellison v. Daniels, 11 id. 284; Parish v. Gilmanton, id. 293; Rigney v. Lovejoy, 13 id. 247; Great Falls Co. v. Worster, 15 id. 412; Gilsum v. Sullivan, 36 id. 368; Sissous v. Bicknell, 6 id. 559; Kelly v. Burnham, 9 id. 20; Lane v. Sleeper, 18 id. 209; Whittemore v. Gibbs, 24 id. 484; Wilson v. Kimball, 27 id. 300; Blake v. Williams, 36 id. 40; Bell v. Morse, 6 id. 206; Smith v. Smith, 15 id. 55; Weeks v. Eaton, id. 148; Dearborn v. Taylor, 18 id. 153; Hobson v. Riles, 20 id. 41; Furbush v. Goodwin, 25 id. 425, 450; Lamprey v. Nudd, 29 id. 299; Currier v. Webster, 45 id. 234; Jackson v. Lodge, 36 Cal. 28; United States v. Athens Armory, 35 Ga. 344; Whitmore v. Shiverick, 3 Nev. 288; Clawson v. Eichbaum, 2 Grant's Cas. 130; Trus. of Union College v. Wheeler, 61 N. Y. 88; Timms v. Shannon, 19 Md. 296; Dutton v. Warschauer, 21 Cal. 609; Mack v. Wetzlar, 39 id. 247; Drake v. Root, 2 Col. 685; Cooch v. Gerry, 3 Har. (Del.) 280; Burnside v. Terry, 45 Ga. 621; Vallette v. Bennett, 69 Ill. 632; Chick v. Willetts, 2 Kaus. 384; Duclaud v. Rousseau, 2 La. Ann. 168; Caruthers v. Humphrey, 12 Mich. 270; Gorham v. Arnold, 22 id. 247; Adams v. Corriston, 7 Minn. 456; Stanard v. Eldridge, 16 Johns. 254; Givens v. M'Calmont, 4 Watts. (Pa.) 460; Harder v. Harder, 26 Barb. 414; Hickman v. Irvine, 3 Dana (Ky.), 121; Jackson v. Brownson, 7 Johns. 227; Smith v. Poyas, 2 Des. (S. C.) 65; Keeler v. Eastman, 11 Vt. 293; Morehouse v. Cotheal, 22 N. J. (L.) 521; Drown v. Smith, 52 Me. 141; McCullough v. Irvine, 13 Penn. St. 438; Hagar v. Brainerd, 44 Vt. 294; Southworth v. Van Pelt, 3 Barb. 347; Hampton v. Hodges, 8 Ves. Jr. 105; Van Pelt v. McGraw, 4 Comst. 110; Peterson v. Clark, 15 Johns. 205; Wakeman v. Banks, 2 Conn. 445; Stowell

v. Pike, 2 Greenl. 387; Page v. Robinson, 10 Cush. 99; Langdon v. Paul, 22 Vt. 205.

UNITED STATES SUPREME COURT ABSTRACT.

CONTRACT-ILLEGAL-FUTURE DELIVERY--CUSTOM.— (1) The generally accepted doctrine in this country is, that a contract for the sale of goods to be delivered at a future day is valid, even though the seller has not the goods, nor any other means of getting them than to go into the market and buy them; but such a contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer; and if under guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price aud the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is null and void. Benjamin on Sales, §§ 541, 542 and notes to 4th Am. ed. by Bennett; Dickson's Exr. v. Thomas, 97 Penn. St. 278; Gregory v. Wendell, 40 Mich. 432; Lyon v. Culbertson, 83 Ill. 33; 25 Am. Rep. 349; Melchert v. Am. Union Tel. Co., 3 McCrary, 521; S. C., 11 Fed. Rep. 193, and note; Barnard v. Bockhaus, 52 Wis. 593; Kingsbury v. Kirwan, 77 N. Y. 612; Story v. Salomon, 71 id. 420; Love v. Harvey, 114 Mass. 80. In Reed v. Anderson, 48 L. T. (N. S.) 74, the defendant was nevertheless adjudged liable to refund to the plaintiff the amount lost by the latter by a bet on a horse race, made in his own name, but for the defendant, at his request; and this was followed in Thacker v. Hardy, 4 Q. B. D. 685; 29 Eng. R. 117. The charge of the court however is objected to on behalf of the plaintiff in error as misleading by the statement embodied in it, that on their face these transactions are legal." We presume that nothing more was meant by this than what had just before been said in the charge, that the burden of proof to show the illegality of the transactions was upon the defendant, who affirmed it, the presumption being that men ordinarily in their business transactions do not intend to violate the law. (2) It was error to permit proof of a custom, without evidence that the defendant below had knowledge of it, and in not instructing the jury to disregard it, if they were satisfied from the evidence that such knowledge had not been satisfactorily shown. Nickalls v. Merry, L. R., 7 H. L. 530; Robinson v. Mollett, id. 802. Irwin v. Williar. Opinion by Matthews, J. [Decided March 3, 1884.]

OFFICER-PUBLIC-RIGHT TO FEES RECEIVED ABOVE SALARY-COMMISSIONS ON SALES.-A receiver of public moneys is not entitled to the military bounty land fees received by him during his term of office, over and above the amount required, with his commissions on cash sales of public lands, to make up his annual salary. United States v. Babbitt, 1 Black, 55; 95 U. S. 335. In the present case the employment was for a special service in connection with a special trust assumed by the United States for the benefit of certain Indian tribes, in which express provisions were made for the payment of expenses. In legal effect, the appointment was to an agency for the sale of lands for the Indians, with an implied understanding that a reasonable compensation would be paid for the services rendered. So far as any thing appears in the record, the appointment was not made because Brindle was receiver of the land office. The duties to be performed were of a different character and at a different place from those of the land office, and while the exact

amount of compensation for this service was not fixed, it was clearly to be inferred that such compensation as the law implies where labor is performed by one at the request of another, would be paid. This case comes therefore within the rule in Converse v. United States, 21 How. 463, and Brindle is not excluded by the act of 1852 from demanding compensation for this service by reason of his being receiver of the land office. United States v. Brindle. Opinion by Waite, C. J.

[Decided March 3, 1884.]

GRANT-PUBLIC-PRESUMPTION-SWAMP-LAND ACT 1850-APPLICABLE TO THEN EXISTING STATES-TITLE. -Donations of the public domain for any purpose are never to be presumed. Those who claim against the government under legislative grants must show a clear title. The grant under the act of 1850 was to Arkansas and "the other States of the Union." The SwampLand Act of 1850 operated as a grant in præsenti to the States then in existence of all the swamp lands in their respective jurisdictions. Railroad Company v. Smith, 9 Wall. 95; French v. Fyan, 93 U. S. 171; Martin v. Marks, 97 id. 345. As Minnesota was a territory in 1850, the title to the swamp lands within its territorial limits did not pass out of the United States at that time, because there was then no grantee in existence. It is contended however that on its admission into the Union in 1858, the grant carried the title to the State, as against the United States and subsequent grantees, from the date of the original act, or at least from the date of the admission of the State. the act of 1850 related only to States in existence when it was passed, it was locally inapplicable to Minnesota until its provisions were actually extended to that State by the act of March 12, 1860. It follows that the title of the railroad company under the act of 1857 is superior to that of the appellant. The lands were not at the time of the passage of that act reserved to the United States for any purpose, and they were not therefore excepted from its operation. Rice v. Railroad Co. Opinion by Waite, C. J. [Decided March 3, 1884.]

As

MUNICIPAL BONDS-BONA FIDE PURCHASER-EXCESSIVE ISSUE.-Bonds issued by counties in Missouri, during the years 1870 and 1871, in payment of subscriptions to the stock of railroad companies without a vote of the people, are valid if the subscription was made under authority granted before the adoption of the Constitution of 1865 which did not require such a vote to be taken. In Marcy v. Township of Oswego, 92 U. S. 637, and Humboldt Township v. Long, id. 642, followed in Wilson v. Salamanca, 99 id. 504, it was expressly decided that municipal bonds were not in. valid in the hands of a bona fide holder, by reason of their having been voted and issued in excess of the statutory limit, if the recitals imported a valid issue. It is admitted in this case that McKenzie, the defendant in error, is a bona fide holder for value of the coupons sued on, and the recitals, imply authority for the issue of the bonds from which they were cut. Consequently, the excessive issue is no defense. County v. Douglas, 105 U. S. 728. Dallas v. McKenzie. Opinion by Waite, C. J.

and so much of the interest arising therefrom as may remain in the hands of said M. unexpended, shall go to the support and management of such worthy and meritorious charitable and educational and religious institutions of the Roman Catholic faith as said M. may determine." Held, that this provision was not void for uncertainty. It is competent for a testator to bestow a charity upon a person or institution to be chosen or named by a trustee or executor. In that case there is no uncertainty of the beneficiary, for the courts, when called upon to enforce the testament, will be advised of the direction of the charity by the act or declaration of the trustee or executor. Wills providing for the distribution and appropriation of charities in this manner are always upheld by the courts. Perry Trusts, § 731; 2 Redf. Wills (2d ed.), 530-535; Heskith v. Murphy, 35 N. J. Eq. 23; Wells v. Doane, 3 Gray, 201; Brown v. Kelsey, 2 Cush. 243; Salterstall v. Sanders, 11 Allen, 246; First Universalist Society of North Adams v. Fitch, 8 Gray, 421; Going v. Emery, 16 Pick. 107; Miller v. Teachout, 24 Ohio St. 525; American Tract Soc. v. Atwater, 30 id. 77; De Bouler v. Ferguson, 54 Ind. 549; Commissioners of Lagrange Co. v. Rogers, 55, id. 297; Pickering v. Shotwell, 10 Penn. St. 23; Witman v. Lex, 17 Serg. & R. 88; Beaver v. Tilson, 6 Penn. St. 327; Perin v. Carey, 24 How. 465; Loring v. Marsh, 6 Wall, 337. Quinn v. Shields. Opinion by Beck, J.

WAGER-WHEN ACTION WILL LIE AGAINST STAKEHOLDER.-Although the wager be illegal, if the stakeholder has paid it over to the winner before notice or demand against him by the loser, he is exonerated. 2 Pars. Cont. 627. When the wager was made both parties consented that the amount wagered should be paid to the winning party, and it was not essential such consent should be given again. The first question must be answered in the affirmative. But it has been held that where the stakeholder has been notified not to pay over the wager, and he has not done so at the time he is notified, then a recovery may be had. Shannon v. Baumer, 10 Iowa, 210; Thrift v. Redman, 13 id. 25; Adkins v. Flemming, 29 id. 122. Okerson v. Crittenden. Opinion by Seevers, J.

REPLEVIN-WHEN WILL NOT LIE-PROPERTY NOT SUSCEPTIBLE OF DIVISION.-An action of replevin will not lie for an undivided interest in a growing crop of grain. It is well settled that where chattels of the same nature and quality belonging to different owners are mingled in one mass, any owner may claim his aliquot part by replevin. Kaufman v. Schilling, 58 Mo. 218; Inglebright v. Hammond, 19 Ohio, 337; Ryder v. Hathaway, 21 Pick. 305; Young v. Miles, 20 Wis. 615; Kimberly v. Patchin, 19 N. Y. 330. But where the property of joint owners is not susceptible of division, as in case of a growing crop, or in case of the joint ownership of a single piece of property, replevin will not lie by one joint owner, because the property sought to be recovered is not susceptible of seizure and delivery to the plaintiff. Wells Rep. 88, 89. Jones v. Dodge, 61 Mo. 368, was an action in replevin to recover a part of a crop of corn standing ungathered in a field. It was held that a division of the crop by an officer was not practicable, and that the action would not lie, and that to maintain the action the property must be such as can be seized by the officer and delivered to the plaintiff. Read v. Middleton. Opinion by Rothrock, J.

TAXATION-PROPERTY EXEMPT-LEGISLATURE MAY REPEAL. The provision of a general State statute that land devoted to cultivation of forest trees should be exempt from taxation held repealable by the Legislature. It appears to be well settled that where an exemption from taxation is provided for by the general