Court commissioner, or by officers of the United States in execution of their laws; while in the present case, the person who sued out the writ was in custody of an agent of another State, charged with an offense against her laws.

Underlying the entire argument in behalf of plaintiff in error is the idea that the judicial tribunals of the States are excluded altogether from the consideration and determination of questions involving an authority or a right, privilege or immunity derived from the Constitution and laws of the United States. But this view is not sustained by the statutes defining and regulating the jurisdiction of the courts of the United States. In establishing those courts Congress has taken care not to exclude the jurisdiction of the State courts from every case to which, by the Constitution, the judicial power of the United States extends. In the judiciary act of 1789 it is declared that the Circuit Courts of the United States shall have original cognizance, "concurrent with the courts of the several States," of all suits of a civil nature, at common law or in equity, involving a certain amount, in which the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State. By section 711 of the Revised Statutes of the United States, as amended by the act of February 18, 1875, jurisdiction, exclusive of the courts of the several States, is vested in the courts of the United States of all crimes and offenses cognizable under the authority of the United States; of all suits for penalties and forfeitures incurred under their laws; of all civil causes of admiralty and maritime jurisdiction; of seizures under the laws of the United States on land or on waters not within admiralty and maritime jurisdiction; of all cases arising under the patent-right or copy-right laws of the United States; of all matters and proceedings in bankruptcy; and of all controversies of a civil nature where a State is a party, except between a State and its citizens, or between a State and citizens of other States or aliens; the jurisdiction of the States remaining unaffected in all other cases to which the judicial power of the United States may be extended. And by the act of March 3, 1875, the original jurisdiction of the Circuit Courts of the United States is enlarged so as to embrace all suits of a civil nature at common law or equity, involving a certain amount, arising under the Constitution or laws of the United States, or treaties made, or which shall be made under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State claim. ing lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens or subjects. But it is expressly declared that in such cases their jurisdiction is concurrent with the courts of the several States," the jurisdiction of the latter courts being of course subject to the right to remove the suit into the proper court of the United States at the time and in the mode prescribed, and to the appellate power of this court as established and regulated by the Constitution and laws of the United States. So that a State court of original jurisdiction, having the parties before it, may consistently with existing Federal legislation determine cases at law or in equity, arising under the Constitution or laws of the United States, or involving rights dependent upon such Constitution or laws. Upon the State courts equally with the courts of the Union rests the obligation to guard, enforce and protect every right granted or secured by the Constitution of the United States, and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them, for the judges of the State courts are required

44

to take an oath to support that Constitution, and they are bound by it, and the laws of the United States made in pursuance thereof, and all treaties made under their authority as the supreme law of the land, “anything in the Constitution or laws of any State to the contrary notwithstanding." If they fail therein, and withhold or deny rights, privileges or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided to this court for final and conclusive determination.

The recognition therefore of the authority of a State court, or of one of its judges, upon writ of habeas corpus, to pass upon the legality of the imprisonment within the territory of that State of a person held in custody-otherwise than under the judgment or orders of the judicial tribunals of the United States, or by the order of a commissioner of a Circuit Court, or by officers of the United States acting under their lawscannot be denied merely because the proceedings involve the determination of rights, privileges or immunities derived from the nation, or require a construction of the Constitution and laws of the United States. Congress has not undertaken to invest the judicial tribunals of the United States with exclusive jurisdiction of issuing writs of habeas corpus in proceedings for the arrest of fugitives from justice and their delivery to the authorities of the State in which they stand charged with crime. When a demand has been made in accordance with the Constitution of the United States by the State from which the fugitive has fled, upon the executive authority of the State in which he is found, that instrument indeed makes it the duty of the latter to cause his arrest and surrender to the executive authority of the demanding State or to the agent of such authority. But if it should appear upon the face of the warrant issued for the arrest of the fugitive that such demand was not accompanied or supported by a copy, certified to be authentic, of any indictment found against the accused, or of any affidavit made before a magistrate of the demanding State, charging the commission by him of some crime in the latter State, could it be claimed that the arrest of the fugitive would be in pursuance of the acts of Congress or that the agent of the demanding State had authority from the United States to receive and hold him to be transported to that State?

This question could not be answered in the affirmative except upon the supposition, not to be indulged, that so far as the Constitution as the legislation of Congress is concerned the transporting of a person beyond the limits of the State in which he resides or happens to be to another State depends entirely upon the arbitrary will of the executive authorities of the State demanding and of the State surrendering him. Whether the warrant of arrest issued by the governor of California for the arrest of Bayley appeared upon its face to be authorized and required by the act of Congress-that is, whether upon its face a case was made behind which the State courts or officers could not go consistently with the Constitution and laws of the United States, are questions upon which it is unnecessary to express an opinion. What we decideand the present case requires nothing more-is that so far as the Constitution and laws of the United States are concerned it is competent for the courts of the State of California, or for any of her judges-having power under her laws to issue writs of habeas corpus-to determine upon writ of habeas corpus whether the warrant of arrest and the delivery of the fugitive to the agent of the State of Oregon were in conformity with the statutes of the United States; if so, to remand him to the custody of the State of Oregon. And since the alleged fugitive was not at the time the writ

in question issued in the custody of the United States, by any of their tribunals or officers, the court or judge issuing it did not violate any right, privilege or immunity secured by the Constitution and laws of the United States, in requiring the production of the body of the fugitive upon the hearing of the return to the writ, to the end that he might be discharged, if upon hearing, it was adjudged that his detention was unauthorized by the act of Congress providing for the arrest and surrender of fugitives from justice, or by the laws of the State in which he was found. The writ was without value or effect unless the body of the accused was produced. Subject then to the exclusive and paramount authority of the National government, by its own judicial tribunals, to determine whether persons held in custody by authority of the courts of the United States or by the commissioners of such courts, or by officers of the general government, acting under its laws, are so held in conformity with law, the States have the right, by their own courts, or by the judges thereof, to inquire into the grounds upon which any person within their respective territorial limits is restrained of his liberty, and to discharge him if it be ascertained that such restraint is illegal; and this, notwithstanding such illegality may arise from a violation of the Constitution or the laws of the United States.

It is proper to say that we have not overlooked the recent elaborate opinion of the learned judge of the Circuit Court of the United States for the District of California in In re Robb, 19 Fed. Rep. 26; 1 West. Coast Rep. 439. But we have not been able to reach the conclusion announced by him.

For the reasons we have stated, and without considering other questions discussed by counsel, the judgment of the Supreme Court of California (1 West. Coast Rep. 255) must be

Affirmed.

[Tarble's case in State court is reported 3 Am. Rep. 85.-ED.]

UNITED STATES SUPREME COURT ABSTRACT.

ON

MUNICIPAL BONDS IRREGULARITIES CURED BY STATUTE-SUBJECT EXPRESSED IN TITLE-PRACTICE EXCEPTION ΤΟ RULING.-(1) Bonds to the amount of $40,000 were issued by the county of Otoe, in the State (then Territory) of Nebraska, to the Council Bluffs and St. Joseph Railroad Company, as a donation to that company to aid in the construction of a railroad in Fremont county, Iowa, to secure to said Otoe county an eastern railroad connection. Notwithstanding any defects or irregularities in the voting upon or issuing said bonds, they were validated by section 8 of the Act of the Legislature of the State of Nebraska, passed February 15, 1869 (Laws of 1869, p. 92), entitled "an act to enable counties, cities, and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this State, and to legalize bonds already issued for such purpose," taken in connection with another act of said Legislature of the same date (Laws of 1869, p. 200). The decree of this court in Railroad Co. v. County of Otoe, 16 Wall. 667, cited and applied. (2) The Legislature of a State, unless restrained by its organic law, has the right to authorize a municipal corporation to issue bonds in aid of a railroad, and to levy a tax to pay the bonds and the interest on them, with or without a popular vote, and to cure, by a retrospective act, irregularities in the exercise of the power conferred. (3) The first of said acts of February 15, 1869, was not in violation of section 19 of article 2 of the Constitution of Ne

braska, of 1867, which provided that "no bill shall contain more than one subject, which shall be clearly expressed in its title." It would, we think, be a strained construction, to hold that the title of the act is to be so interpreted as to be limited to works situated in the State, when such limitation does not exist in the body of the act, and when the words "in this State," in the title, may fairly be regarded as applicable to the prior words "counties, cities and precincts," to which words they are applied in the body of the act. This principle of construction is sanctioned by the views expressed in Montclair v. Ramsdell, 107 U. S. 152, and in City of Jonesboro v. Cairo and St. Louis R. R. Co., 110 U. S. See also Cooley's Const. Lim. 141, et seq. We have not been referred to any decision of the Supreme Court of Nebraska which we regard as in conflict with these views. (4) Where an action of law is tried by a Circuit Court, without a jury, and the facts on which, on a writ of error, the plaintiff in error seeks to raise a question of law, are not admitted in the pleadings, or specially found by the court, and there is a general finding for the defendant in error on the cause of action which involves such question of law, and there is no exception by the plaintiff in error to any ruling of the court in regard to such question, this court can make no adjudication in regard to it. County of Otoe. Opinion by Blatchf,

J.

[Decided March 17, 1884.]

WAR-ACTION TO COMPEL PAYMENT OF LEGACYCONFEDERATE CONFISCATION NO DEFENSE. In action brought against an executor and the sureties on his bond to compel payment of certain legacies, the executor set up in bar the judgment of the Confederate court, and averred that the State of Tennessee was theu in the hands of the rebel authorities, both civil and military; that he was threatened by them with punishment if he did not comply with the judgment; that he believed it would be dangerous to refuse compliance; that the officers had the power to seize his property, and to arrest and imprison him; and that under his fears he paid the money. Held no defense. As Chief Justice Chase said: "Those who engage in rebellion must consider the consequences. If they succeed, rebellion becomes revolution, and the new government will justify its founders. If they fail, all their hostile acts to the rightful government are violations of law, and originate no rights which can be recognized by the courts of the Nation whose authority and existence have been alike assailed." Shotbridge v. Macon, Chase's Dec. 136. Neither the unlawful proceedings of the Confederate government nor the judgment of its unauthorized tribunal exempts the executor from liability. It may, indeed, as he asserts, be a hardship upon him to compel him to pay the money again which he has once paid to others. This hardship however comes not from the regular administration of the law under the Constitution, but from the violence of the insurrectionary movement in which he participated. * * * If questions of hardship are to be considered, the plaintiff might put in her claim there. Stevens v. Griffith. Opinion by Field, J. [As to powers of courts in Rebel States, see 15 Alb. L. J. 94, notes.-ED.]

[Decided March 17, 1884.]

INTERNAL REVENUE WHISKY BOND SALE OF SPIRITS, FORFEITED, DISCHARGES.-When because of the fraudulent acts of a distiller, bonded spirits are seized and sold, and of the proceeds the taxes are paid, no action can be maintained on the distiller's bond. As two of the defendants are sureties, they have the right to insist, that when the spirits are seized and sold by the United States for any reason whatever, the proceeds shall be first applied to the payment of

the tax. It was said by this court in the case of United States v. Boecker, 21 Wall. 652, that a person about to become a surety on the bond required from a distiller before commencing business "may examine and determine how far, in the event of liability on the part of the principal, the property where the business was to be carried on would be available as security for the government and indemnity for the surety." So we think the fact that the tax due the United States is made by law a first lien on the spirits deposited in the distillery warehouse may fairly be considered by the surety when he estimates the risk he takes by signing the distillery warehouse bond. There is an implied undertaking on the part of the United States, based on the statute making the tax a first lien, that the proceeds of the spirits shall be first applied to the payment of the tax, and this undertaking enters into the distiller's warehouse bond. The government therefore having forfeited the spirits for the misconduct of the distiller, cannot consistently with the rights of the sureties apply their proceeds on some other account, and collect the tax of them, for the contract of a surety is to be strictly construed. Leggett v. Humphries, 21 How. 66; Miller v. Stewart, 7 Wheat. 680; United States v. Boyd, 15 Pet. 187; United States v. Boecker, 21 Wall. ubi supra. We think therefore that the proceeds of the sale of the spirits was in fact and in law applied to the payment of the tax due thereon, and that the bond of the defendants in the case given for its payment was discharged. United States v. Ulrici. Opinion by Woods, J. [Decided March 17, 1884.]

UNITED STATES CIRCUIT AND DISTRICT

COURT ABSTRACT.*

66

SHIPPING AND ADMIRALTY-OFFER OF PILOT SERVICE-SIGNALS-"STATE" INCLUDES TERRITORY."(1) The pilot commissioners of Oregon, under the Pilot Act of 1882, are authorized and required to declare by rule what shall constitute a valid offer of pilot service on the Columbia river bar pilot grounds, by a signal addressed to the eye, and in so doing may prescribe the distance within which such signal must be made from the vessel signaled. (2) The statute of the United States does not prescribe any signal to be used on a pilot boat in making an offer of pilot service; and the light required by section 1233 of the Revised Statutes, to be carried by a sailing pilot vessel at night, is only used to prevent collision and incidentally to give notice of the character of such craft; but the usual signal by which an offer of pilot service is made is the jack set at the main truck in the day-time, and “flareups" at night, and this jack is usually the ensign of the country in which the service is offered. In the United States it is a blue flag charged with a star for every State then in the Union, and called the "Union Jack." (3) The term "State" in the act of March 2, 1837 (5 Stat. 153, § 4236, Rev. Stat.), regulating the taking of pilots on a water forming the boundary between two States, construed to include an organized "Territory" of the United States. Dist. Ct., Oregon, Feb., 1884. The Ullock. Opinion by Deady, J.

ABATEMENT-DEATH OF ALIEN PLAINTIFF.-Under the provisions of section 955 of the Revised Statutes of the United States, when an alien sues in the Circuit Court and dies, the suit cannot be continued to final judgment by his executor or administrator, unless such executor or administrator has taken out letters testamentary or of administration ou the estate in the State where the suit is brought. See Dixon's Ex'rs v. Ramsay's Ex'rs, 3 Cranch, 319; Noonan *Appearing in 19 Federal Reporter.

v. Bradley, 9 Wall. 394. Under that section all personal suits are saved from abatement in cases when the cause of action survives by law. But it would be anomalous to allow a person to continue a suit which he is not authorized to begin. It is a more reasonable construction of the section to hold that when Congress authorized the continuance of a pending suit in the name of the executor or administrator, it meant to refer to an executor or administrator who was competent to begin the action. The present suit is saved from abatement by the statute. The death of the alien plaintiff suspends further proceedings until another lawful plaintiff be substituted. Cir. Ct., D. N. J., Dec., 1883. Kropff v. Poth. Opinion by Nixon, J.

SHIP-LIEN FOR SUPPLIES TAKES PRECEDENCE OF PRIOR MORTGAGE.-For necessary supplies furnished a vessel in a State not that of her owner's residence, a maritime lien presumptively arises. The Neversink, 5 Blatchf. 539; The Lulu, 10 Wall. 192; The Eliza Jane, 1 Spr. 152; The New Champion, 17 Fed. Rep. 816, and cases cited. This lien will take precedence of a prior mortgage, duly registered, under section 4192 of the Revised Statutes. The mortgagee, by assenting to the use and possession of the vessel by the mortgagor for the purposes of navigation, without restriction, assents by implication to the creation of such maritime liens as by law arise incidentally in the ordinary business of the ship. That rule was laid down in this district in the case of The E. M. McChesney, 8 Ben. 150, and the same rule has been elsewhere sustained. The Granite State, 1 Spr. 277; The Heurich Hudson, 7 L. R. (N. S.) 93. See also The Lulu, 10 Wall. 192, 193; The May Queen, 1Spr. 588. Dist. Ct., S. D. N. Y., Jan., 1884. The Charlotte Vanderbilt. Opinion by Brown, J.

ILLINOIS SUPREME COURT ABSTRACT.*

NEGLIGENCE-WHAT FACTS ESTABLISH-ADMISSION OF IMPROPER EVIDENCE-DECLARATIONS OF THIRD PERSONS.-(1) In an action on the case against a railway company, to recover for a personal injury alleged to have resulted from the negligence of defendant, where there was evidence tending to show that the plaintiff was struck by cars being moved by the defendant at a street crossing; that the train was being run at an unusual rate of speed; that no bell was rung or whistle sounded; that there was no light on the forward car that struck the plaintiff, and that plaintiff was observing due care for his safety, it was held that such facts, assuming them to have been proven, established a clear right of recovery in the plaintiff. (2) The admission of improper evidence of a trifling character, not affecting in the slightest degree the defense set up, affords no ground for reversing a judgment in favor of the plaintiff fully justified by the other facts found by the jury. (3) The defense offered to prove that just before the accident the plaintiff, in a saloon, called for a drink of liquor, and that the bar-keeper told him he had enough, which the court excluded ou objection. Held, that this evidence was not admissible, and was properly refused. The fact whether plaintiff was under the influence of liquor was subject to proof the same as any other fact in the case, but could not be proved by the declaration of a third person. Lake Erie v. Zoffinger. Opinion per Curiam.

HIGHWAYS-OPENING STREET-WHEN ENJOINED DEDICATION-WHAT ESSENTIAL- ABANDONMENT. —A plat of a village recorded in 1858 contained lines indicating blocks, with spaces between them, probably intended for streets, but no streets were named, and no length or width of the spaces between the blocks, or *To appear in 107 Illinois Reports,

or

any scale, was given by which the streets could be ascertained and located. Held, that where the owner of adjoining.blocks had fenced the same, including the unknown space between, and such inclosure had been maintained for over twenty years without complaint, the village authorities were properly enjoined from opening the supposed street through such inclosure, as no surveyor could, from the plat, find the limits of the street. To make a good dedication, either under the statute at common law, there should be a definite and certain description of that which is proposed to be dedicated, and an acceptance by the public before the withdrawal or abandonment of the offer to dedicate. Littler v. City of Lincoln, 106 Ill. 353; Trustees, etc., v. Walsh, 57 id. 370. There was therefore as we understand this record, no definite statutory dedication of any particular quantity of ground for this street, and the proof fails to show a sufficient offer to dedicate any definite quantity, or such an acceptance of any offer in that regard as is necessary to constitute a commonlaw dedication. Indeed the evidence shows such an abandonment by the public as now precludes the opening of the street. See Peoria v. Johnston, 56 Ill. 51; Champlin v. Morgan, 20 id. 182; Town of Lewiston v. Proctor, 27 id. 418; Littler v. City of Lincoln, 106 id. 353. Winnetka v. Prouty. Opinion by Scholfield, J. [See 14 Alb. L. J. 278; 7 id. 171; 5 id. 139; 6 App. Cas. 643; 34 Eng. Rep.-ED.]

SURETY-MAY WAIVE DISCHARGE.-The promise of a surety, without other consideration than the extension, to pay the note, if his principal does not, made after the creditor has arranged with the principal to extend the time of payment, but with a full knowledge of all the facts, is good. Where a surety has been discharged by the extension of time, it is a personal privilege which he may waive, and this he does when with a full knowledge of the facts he renews his promise. Brandt on Sur. and Guar., § 300; Fowler v. Brooks, 13 N. H. 240; Porter v. Hodenpuyl, 5 Mich. 11; Bank v. Whitman 66 Ill. 331; Mayhew v. Cricketts, 2 Swanst. 185; Smith v. Winter, 4 M. & W. 454; Stevens v. Lynch, 12 East, 38. Bramble v. Ward. Opinion by Nash, J.

RAILROAD-PRIVATE ROAD CROSSING-FENCE-EVI

DENCE-BOOKS-INADMISSIBLE AGAINST STRANGER.

Where a private road extends across the track and right of way of a railroad company, and connects with a public highway, the company is required to maintain across such private road suitable fences, or provide other protection against injuries which may result from animals passing from such highway, through the private road, on or along the railroad track. The whole subject has been recently considered in Indiana, where the legislation is similar, and after disapprov ing some of the decisions in that State, the same view here stated is enforced by the Supreme Court in an able opinion by Elliott, J. Indianapolis, etc., R. Co. v. Thomas, 84 Ind. 194. Books kept by a railroad company solely for its own use in the management of its business, are not admissible as evidence, when offered by the company, in an action against it by a stranger to such company seeking to recover damages sustained by the company's negligence. Railroad v. Cunnington (Sup. Ct.). Opinion by O'Key, J.

STATUTE-FOREIGN MUST BE PROVED.-The statutes of another State and also any peculiar construction which the courts of such State may have placed upon *To appear in 40 Ohio State Reports.

them, when they come in question in the courts of this State, must be proved by evidence as matters of fact. Smith v. Bartram, 11 Ohio St. Rep. 690. Larwell v. Hanover Savings Society (Com.). Opinion by Dickman, J. [See 4 Alb. L. J. 130; 5 id. 384; 16 Eng. Rep. 591, 602; 32 id. 468.-ED.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

BONDS-BONA FIDE PURCHASER OF STOLEN.-Corporation bonds, of ordinary form, payable to bearer at maturity, like bank notes and promissory notes indorsed in blank, pass by delivery, and a bona fide purchaser is unaffected by want of title in his vendor. Connor v. Fifth Nat., etc. Opinion per Curiam. [See 7 Am. Rep. 423; 20 id. 376; 25 id. 152.-ED.] [Decided Nov. 12, 1883.]

LANDLORD AND TENANT-COVENANT TO PAY TAXES, ETC.-PAVING AND CURBING STREET.-A clause in a lease, which provides that the lessee shall "pay all taxes, water-rents, and assessments upon the premises," includes a charge for paving and curbing the streets in front of the leased premises, when ordered by the municipal authorities. In an action of covenant by the lessors in the above case against the lessees for the cost of curbing and paving the leased premises. Held, that the fact that the parties to the lease had agreed that a third party should do the work, and that the question of the liability therefor should be subsequently determined, was not such an alteration of the covenant as to render necessary a change in the form of the action. McManus v. Cassidy, Penn. St. Rep. 260. Griffin v. Phænix Co. Opinion per Curiam. [Decided Feb. 25, 1884.]

MALICIOUS PROSECUTION-WHEN DOES NOT LIE FOR PROSECUTING CIVIL SUIT.-It has been wisely determined, that for the prosecution of a civil suit, however unfounded, where there has been no interference with either the person or property of the defendant, no action will lie. In Potts v. Imlay, 1 Southard, 330, Chief Justice Kirkpatrick alleged that the books, for four hundred years back, had been searched to find an instance where an action on the case for the malicious prosecution of a civil suit, like the one then trying, had been successfully maintained, and that it was conceded by the counsel for the plaintiff that no such case had been found. In the case of Eberly v. Rupp, 9 Norris, 259, the very latest expression of this court upon the subject in hand, and a case much stronger in its facts than the one under consideration, for there the action was for the recovery of damages resulting from the services of a writ of estrepement, but it was held that the action could not be maintained inasmuch as the writ being purely preventive, neither arrested the person of the defendant nor seized his goods. See also Kramer v. Stock, 10 Watts, 115; Mayer v. Walter, 14 P. F. Smith, 283; Woodmansie v. Logan, 1 Penn. (N. J.) 67. Muldoon v. Rickey. Opinion by Gordon, J. [See 44 Am. Rep. 343, 346, n., maliciously filing lis pendens, 20 Hun, 555.-ED.] [Decided April 16, 1883.]

NEW HAMPSHIRE SUPREME COURT ABSTRACT.*

OFFICER -EXCESSIVE ATTACHMENT WHEN NOT LIABLE IN DAMAGES.-To make an officer a trespasser for exceeding or abusing his authority, he must be shown to have committed acts which persons of ordinary care and prudence would not, under like circumstances, have committed, and made such a departure

* To appear in 59 New Hampshire Reports.

from duty as to warrant the conclusion that he intended from the first to do wrong, and use his legal authority as a cover for an illegal act. Taylor v. Jones, 42 N. H. 25, 35; Closson v. Morrison, 47 id. 482. It does not appear that the officer acted in bad faith in making the attachment, or that he was culpably negligent in not ascertaining the value of the real estate or that it was unincumbered, before attaching the personal property. Davis v. Webster. Opinion by Alleu, J.

In so

RECEIPT SO FAR AS CONTRACT, CANNOT BE VARIED BY PAROL.-The defendant offered in evidence the following receipt: "In consideration of twenty-five hundred dollars to me paid by Martha Goodwin, executrix of. * * I hereby waive all right to contest said will or the proof thereof, and all claim I have or might have as heir of deceased. Elisha Goodwin." A writing which partakes of the nature both of a con. tract and a receipt may be contradicted and explained in regard to any fact which it erroneously recites, but in other respects it is to be treated like other written contracts. 1 Gr. Ev., § 305, and note; Smith v. Holland, 61 N. Y. 635. The writing before us, denominated a receipt, partakes of this double nature. far as it may be regarded as a receipt, it is capable of explanation and contradiction with regard to any fact erroneously recited; but in its main features it is more properly to be regarded as a contract, made binding upon the plaintiff by his signature, and on the defendant, by being delivered to and accepted by her. In this aspect it could no more be varied or controlled by oral evidence than any other written contract between the parties. James v. Bligh, 11 Allen, 4; Egleston v. Knickerbacker, 6 Barb. 458; Kellogg v. Richards 14 Wend. 116; Coon v. Knap, 8 N. Y. 402, 405; Ryan v. Ward, 48 id. 204, 207, 208; Henry v. Henry, 11 Ind. 236. Each of the cases above cited bears a strong resemblance to the case before us in respect to the peculiar character of the written instrument which was the subject of contention. See also Brown v. Cambridge, 3 Allen, 474; Sencerbox v. McGrade, 6 Minn. 484; Wykoff v. Irvine, id. 496; Brown v. Brooks, 7 Jones Law (N. C.), 93; Capps v. Holt, 5 Jones Eq. (N. C.) 153; Harrison v. The Juneau Bank, 17 Wis. 350. Goodwin v. Goodwin. Opinion by Foster, J.

[Decided June, 1880.]

LICENSE-REVOKED BY LEVY UNDER EXECUTIONTITLE BY PRESCRIPTION.—(1) A statement by A. that if B. would dig out a spring on A.'s land, stone it up, and lay pipes to convey the water to B.'s house, B. might have the spring, creates a iicense merely, which may be revoked, even though B. complies with A.'s offer. Being a license, it was revoked by the set-off on the execution against A. Harris v. Gillingham, 6 N. H. 9; Carleton v. Redington, 21 id. 291, 305; Cowles v. Kidder, 24 id. 364, 379; Houston v. Laffee, 46 id. 505, 507: Dodge v. McClintock, 47 id. 383, 385; Stevens v. Dennett, supra; Blaisdell. v. R., 51 N. H. 483, 485; Cook v. Stearns, 11 Mass. 533, 538; Drake v. Wells, 11 Allen, 141; Godd. Ease. (Bennett's ed.) 475; Gale & Wh. 353; Wash. Ease. 5, 19. (2) The right to the spring was an incorporeal right, and could only be created by deed, or by user, under such circumstances and for such a period as to furnish evidence from which it might be inferred that there was a deed. It could not be created by parol, or by writing not under seal. Stevens v. Dennett, 51 N. H. 324, 331; Hewlins v. Shippam, 5 B. & C. 221, 229; Cocker v. Cowper, 1 Cr. M. & R. 418; Gale & Wh. 12; Godd. Ease. (Bennett's ed.) 88. (3) Title by prescription can only be acquired by an adverse, exclusive, uninterrupted use, sufficiently long continued (in this State for twenty years) under a claim of title, and with the knowledge and acquiescence of the owner of the land. It must be under a

claim of legal right, and not by consent, permission, or indulgence, and these facts must be proved by the party claiming the easement. Wallace v. Fletcher, 30 N. H. 434, 448; Burnham v. Kempton, 44 id. 78, 88: Gilford v. Lake Co., 52 id. 262; Sargent v. Ballard, 9 Pick. 251; Smith v. Miller, 11 Gray, 145; White v. Chapin, 12 Allen, 516; Wash. Ease. 110, 111: Godd. Ease. (Bennett's ed.) 172; 2 Gr. Ev., § 539; and authorities passim. Taylor v. Gerrish. Opinion by Stanley, J. [As to first point see 10 Am. Rep. 195; 12 id. 80; 18 id. 455.-ED.]

[Decided June, 1880.]

MICHIGAN SUPREME COURT ABSTRACT.

GIFT-DEPOSIT IN BANK IN ANOTHER'S NAME, SUBJECT TO own order-DEATH OF DONEE.-Plaintiff sued defendant for a balance on deposit; the defense was that the money belonged to his deceased wife. Plaintiff recovered and defendant appeals. Held, that the judgment should be affirmed. There is no principle of law which makes the mere placing of money or property in another's name an irrevocable gift to that person. But this arrangement falls short of even this, because in law it was merely a contract between two persons that one should open an account in the name of a third person, the original depositor having a reserved right to draw the sums credited. At common law no one could sue on an express contract, except the parties to it. Under the equitable action for money had and received, a beneficiary may sometimes sue, but this can only be where the parties have given him such a right as transfers the fund to his control. The money belonging to one person cannot cease to belong to him until he does some act to dispose of it. The cases heretofore determined in this court are stronger cases than the present in favor of plaintiff's rights. See Burtnett v. First Nat. Bank of Corunna, 38 Mich. 630, and Detroit Sav. Bank v. Burrows, 34 id. 153. In the former case the bank had no dealings whatever with the plaintiff, but held his money deposited by an agent in his own name. In the latter it was understood that the wife, in whose name the money was deposited, was to draw all the checks, but they were to be payable to the husband's order, which made the case more analogous to the present. In both the question was treated as one of fact. The decisions referred to in the opinions in those cases, as well as in the arguments, sustain that doctrine. Davis V. Lenawee. Opinion by Campbell, J. [Decided March 6, 1884.]

WILL-SURVIVORS OR THEIR LEGAL REPRESENTATIVES DAUGHTER DYING-HER CHILDREN TAKE.Property was left by will to the four children of the testatrix, none of whom were married at date of the will, with the proviso" that if any of my children die before me, my estate shall be divided among the survivors or their legal representatives, share and share alike." One daughter married, and died before her mother, leaving two children. Held, that by the term "legal representatives" in this will was evidently meant the lawful heirs; a different construction is not claimed by either party. It is only in case of the death of one of the four children of the testatrix. that she desired any of the property to go to "legal representatives" of any of her children. If the "legal representatives" intended are confined to those of the survivors, as claimed by counsel for appellant, then the term has no meaning in the will, because survivors could have no legal representatives. A will must be so construed that each word means something, if pos sible, and this cannot be done unless the words "legal representatives" mean the legal heirs of the deceased