to our judgmeut": (2 Q. B. at p. 418.) This decision is in no way shaken by that in Nicholson v. Ricketts, 2 E. & E. 497, where two firms with distinct trade names agreed to carry on joint exchange operations under such circumstances as to make them partners in them; and it was held that the signature to bills of one of the two firms drawn in course of the exchange operations did not make both firms liable as drawers; for the decision proceeded simply on the ground that by the arrangements between the two firms the names of the two firms were to be used separately, the paper to be dealt in being drawn by one firm and accepted by the other, and as Cockburn, C. J., said, at p. 523, it did not appear that the drawing firm had any authority, express or implied, to bind the defendant by drawing bills. The case of Re Adansonia Fibre Co.; Miles' Claim, L. Rep., 9 Ch. 635, was substantially the same as that of Nicholson v. Ricketts, and was decided upon the same considerations. In each of these cases the court came to the conclusion, as a matter of fact upon all the circumstances before it, that the name on the bill was not intended to be, and was not, the name of the partnership sought to be made liable upon it. Upon this view of the English authorities, they appear to support the view that where a name is common to a firm and to an individual member of such firm, and the individual member carries on no business separate from that of the firm, there is a presumption that a bill of exchange drawn, accepted, or indorsed in the common name is a bill drawn, accepted, or indorsed for the partnership, and for which the partnership is liable, and that it lies upon the defendants in an action against the partners upon such bill to get rid of the prima facie case made against them. But as the court below relies much upon the American authorities as uniformly negativing this view, and those authorities have been much discussed in the argument before this court, we think it desirable to refer to them. The authorities specially cited in the judgment of the court below are Parsons on Bills of Exchange, 531; Story on Partnership, 106, 142; the decision in the Supreme Court of New York of Oliphant v. Mathews, 16 Barb. 608 and the direction of Story, J., to the jury in United States Bunk v. Binney, 5 Mason, 176, 185. The passage referred to in Parsons does not bear out the proposition for which it is cited. He says: "The burden of proof is upon the plaintiff to show that the paper was given in the business, and for the use of the firm, for it will be intended prima facie to have been given in the separate business of the partner signing it, and to be binding on him alone, at least if he is also engaged in business on his own separate account." The views of Story, J., are best taken from his ruling in United States Bank v. Binney, where, in directing the jury, he used this language: "In tho present case the signature of John Winship may be on his own individual account, as his personal contract, or it may be on account of the partnership. Upon the face of the paper it stands indifferent. The burden of proof is upon the plaintiffs to establish that it is a contract of the firm, and ought to bind them." But there was evidence to go to the jury in that case that the partnership was limited to a soap and candle business, and that the accommodation notes which were sued on were given in respect of consiguments of meat, which might have constituted, and it was contended, did constitute the separate business of Winship. It is doubtful therefore whether Story, J., intended his proposition to extend to a case where no separate business could even be suggested as existing. On the other hand, in the case of Mifflin v. Smith, 17 Serg. & Rawle, 165, Rogers, J., dealt with the doctrine of presumption in a case where the question was whether the loan of money obtained by a member of a partnership carried on in his individual name was obtained on the faith of the partnership business, or on the credit of the indi

vidual partner, and he laid it down that the presumption was that it was made on the faith and credit of the business, saying, "If a retail merchant gets a note discounted, is it not to be presumed to be in the regular prosecution of his business?" and adding, "Tho difficulty arises from tho name of the individual and the name of the firm being the same. That is the presumption, liable, however, to be rebutted, if the jury believe from the evidence that was not the state of the fact." A motion to the Supreme Court of Pennsylvania, founded, amongst other things, upon the alleged error of this direction, was refused. This case was decided in 1827. The case before Story, J., was in 1828. In 1845 the question under consideration again arose in the Supreme Court of New York in the case of Bank of Rochester v. Monteith, 1 Den. 402, where the name of Wm. Monteith, an agent of tho firm, had been used as the firm name, and the court said: "If Wm. Monteith had also been in business on his own account, then the acceptance by writing his name on the face of the bills would have been an equivocal act, and it would have been necessary to show that he accepted on account of the partnership, and not in his own private business," and after citing among the authorities for this proposition the United States Bank v. Binney, thus indicating that they must have thought that in this case there was a separate business carried on by the individual whose name was used, the court added: "But there was no evidence that Wm. Monteith was engaged in any other business than the affairs of this partnership. We must then regard those bills as drawn and accepted by the houso doing business in the name of Wm. Monteith." In 1853 was decided, also in the Supreme Court of New York, the case of Oliphant v. Mathews, which is the second of the two cases cited in the judgment of the court below. That case, when critically examined, will be found not to be inconsistent with the cases of Mifflin v. Smith and Bank of Rochester v. Monteith. It is true that the court laid down in general terms that where a partnership is carried on in the name of an individual, and a suit is brought against the partners upon a note or other obligation signed by such individual, the legal presumption is that it is the note of the individual and not of the partners. The court immediately qualified the generality of the proposition laid down by saying that the presumption might be repelled and overcome (in other words the onus of proof might be shifted) by proof as to the business in which such person was engaged; and while citing Mifflin v. Smith as explaining what proof would be sufficient, the court pointed out that in the case before them it was proved that the individual did business and borrowed money on his own account, as well as on account of the partnership; and it was not shown that one was not as constant and regular as the other. This case, therefore, is in no way inconsistent with the previous case decided in the same court of Bank of Rochester v. Monteith, and none of the other cases cited in the argument before us carries the doctrine of presumption in favor of the defendant further. It appears to us, therefore, that the American authorities are in accord with the English upon the point under consideration, and that both fail to support the view taken by the court below, and are in favor of tho second contention urged in this case on behalf of tho plaintiffs. Applying then the presumption for which the plaintiffs contend to the circumstances of tho present case, the matter stands thus: The only business carried on in the year 1878 in the name of and by Wm. Beatson was the business of the partnership, and both the bills sued upon have the appearance of trade bills. Prima facie, then, the bills were bills indorsed and accepted respectively in the name and on account of the partnership, and if that prima facie case were not displaced, Mycock would be liable upon them to

the plaintiffs as bona fide holders for value without notice, even though they were so indorsed and accepted for the private purposes of Beatson, and in fraud of his partner. The nature of the partnership business was such as to give Beatson in respect to persons dealing with him in business an implied authority to bind his partnership by bills of exchange, and his partner, although a secret one, must be held responsible upon any bill signed by Beatson in the name of the firm in favor of a holder whose title cannot be impeached, however much Beatson in signing that name may have exceeded the authority and broken the trust reposed in him by the agreement of partnership. As was said by the court in giving judgment in the case of Wintle v. Crowther, 1 C. & J. 316: "Where a partnership name is pledged, the partnership, of whomsoever it may consist, and whether the partners are named or not, and whether they are known or secret partners, will be bound, unless the title of the person who seeks to charge them can be impeached," and the authorities generally, both English and American, are uniform in support of this view. There is no difference in this respect between the dormant and the ostensible partner, and when once it is established that a name common to a firm and an individual member of it has been put to a bill as the name of the firm, there is no difference between the liability of partners carrying on business in such a name and the liability of partners carrying on business in a name which bears in itself the stamp and evidence of a partnership. It may perhaps be argued that in the latter case the bona fide holder without notice is induced by the name itself to trust a firm, and is therefore entitled to have all the responsibility of all the members of that firm, while an individual name would suggest no responsibility other than that of the individual whose name it is; but when it is remembered that firm names are often used by individual traders, while individual names are often used by firms, the argument practically comes to nothing, and a common principle applicable to both cases remains alone consistent with mercantile cxpediency and general law. But assuming that there is no difference, as matter of law, between the two cases, there is as matter of evidence a very real and very practical difference. A name in itself indicating a firm does not, except in rare instances, of which the case of Stephens v. Reynolds, 5 H. & N. 513, is an example, leave open any doubt as to the meaning of a signature in such name; but a name which in itself indicates au individual is, notwithstanding the effect of any legal presumption, ambiguous, and there are likely to be few, if any, cases where the decision of the jury or of a court will be rested upon the presumption alone. The present case is no exception to the rule, and the presumption in favor of the plaintiffs arising from the fact that Beatson carried on no business separate from that of the partnership really sinks into comparative insignificance by the side of the additional facts which are proved in the case. Upon those facts we have to decide, as the courts in Nicholson v. Ricketts and Re Adansonia Fibre Co., Miles' Claim, were called upon to decide, whether the signature to the bills upon which the dispute arises was intended to denote and did denote the partnership of which the defendant was a member. In the first place it is clear that the bills were bills, which, if signed by Beatson for the partnership, were so sigued by him without the authority and in fraud of his partner, and in respect of which no action would have lain against Mycock, if they had remained in the hands of Josiah Carr & Son, who took them with notice. In the second place, it is, we think, equally clear that as between Beatson and Mycock the bills were not treated as having been signed by Beatson on the partnership account. They were not entered in any partnership book, and indeed, even before the partnership as well as after it com

menced, the accommodation transactions of Beatson were treated as not forming any part of the transactions of his business, and were excluded from the ledger. In the third place, the evidence establishes that the accommodation transactions of Beatson after the commencement of the partnership diminished rather than added any thing, even temporarily, to the capital of the firm; and lastly, Beatson himself, called as a witness by the plaintiffs themselves, disproved, as it appears to us, the fact that in signing the bills in question he signed for the partnership. He stated that he thought he was not inaking Mycock liable for any of the accommodation bills, whether renewals or otherwise, and that he considered them private transactions, and did not enter them in the partnership books. Can any other inference be reasonably drawn from such evidence than that Beatson, in signing the bills, intended to sign and did sign them for himself? We think that no other inference ought to be drawn, and that the jury, in finding that "William Beatson" upon each of the bills was intended to denote the firm, gave a verdict against the evidence, and one which ought not to stand. The reason given in support of their finding by the jury that one bill was addressed to the drawee or drawees as of the Chemical Works, Rotherham, and that the other was so connected with it as to stand or fall with it, might have been a good reason in a case where the evidence was in other respects doubtful, but it is in the present case met to some extent by the very form of the bill itself, which, while addressed to the drawee or drawees at the partnership works, contains in the term "Mr." prefixed to the name "Wm. Beatson” an indication that the individual and not the firm was intended, and is entirely outweighed by the clear evidence to which we have referred, and we understand that the learned judge who tried the case was himself dissatisfied with the finding. The additional finding that the bank took the bills as the bills of the chemical works is clearly irrelevant if the former finding is wrong, for if the bills were in fact signed not in the name of the partnership, but of Wm. Beatson individually and for his private purposes, the fact that the plaintiffs were unaware that Mycock was a partner with Beatson, and never advanced any money on the faith of his credit, but did at the same time give credit to the name of Beatson as being the name of the owner of the chemical works, can give them no more right against Mycock than if he had been a mortgagee of the works instead of a partner in them. The law in a case of bankruptcy asserts a title in the general body of creditors of a bankrupt to property of which he may have been at the time of his bankruptcy in apparent possession with the consent of the true owner, and upon the faith of which he gained a false credit. But in actions founded upon purely personal contracts, the law does not use the mere moral right which a creditor may attempt to assert against a person in consequence of his having intrusted to another property in the belief of his ownership, of which the creditor may have contracted with him. In other words, in a case like the present there is no conduct on the part of the dormant partner which makes it inequitable on his part to deny, or estops him from denying, his liability upon a contract to which he was in fact no party, from which he has derived no benefit, and in respect of which he was not held out to the person suing him as liable. As regards this point, nothing turns on the subject-matter of the action being negotiable instruments. Beatson, by giving the use of his name to a partnership of which he was a member, and the only ostensible member, did not preclude himself from making contracts binding himself alone, and in any contracts de facto made by him, whether by parol or in writing, the question, the answer to which would determine Mycock's liability or freedom from liability,

would not be whether the other contracting party trusted Beatson because he supposed him to be sole owner of the chemical works, but whether Beatson, whom alone he knew and actually trusted, was acting as agent for the partnership, or in his individual capacity for himself. This kind of question was raised in the case of the Bank of Scotland v. Watson, 1 Dow. 40, where the bank and its agents carried on separate banking business at the same office, and the bank was unsuccessfully sued by a person who relied in support of his claim against the bank upon a receipt which bore the address of the common office. One point only remains for decision. The verdict and judgment for the plaintiffs have been properly set aside by the court below, but is it right that the judgment entered instead for the defendant Mycock should stand? We have entertained some doubt whether the case ought not to go to another jury to be decided upon the principles laid down in this judgment; but we have come to the conclusion that the court ought not to put the parties to this expense. The case is one in which no additional facts remain to be proved, and in which upon the facts proved no jury would be justified in finding a verdict adverse to the defendant Mycock. It is one therefore in which, to use the words of rule 10 of order XL. of the General Rules of the Supreme Court, we have before us, as the court below had, all the materials necessary for finally determining the question in dispute; and in this state of circumstances we think that the judgment of the court below should stand, and that this appeal should consequently be dismissed. Judgment affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

CONFLICT OF LAW-LAW OF LOWER CANADA AS TO SALES OF CHATTELS- COMITY WILL NOT BE EXER

CISED TO DEPRIVE CITIZEN OF TITLE. - Personal property belonging to A, a citizen of New York, who had acquired title here, and situated here, was taken without the consent of A to Lower Canada, where it was purchased by B for value and without notice of the rights of A, from a trader in property of like kind, who had it in his possession. By the law of Lower Canada the purchaser of personal property from a trader in like property confers good title. B conveyed the property to defendant, who brought it again into New York, where his domicile was. In an action by A against defendant for a conversion of the property in the courts of New York, held, that the title of A was superior to that of defendant, and the title of B, acquired under the law of Lower Canada, would not be recognized. Though a transfer of personal property valid by the law of the domicile is valid everywhere, as a general principle, there is to be excepted that territory in which the property is situated and where a different law has been set up, when it is necessary for the purposes of justice that the actual situs of the thing be examined. Green v. Van Buskirk, 7 Wall. 139. Yet statutes have no extra-territorial force and where they are permitted to operate in another State through comity, they will not be so allowed to the inconvenience of the citizen or against the policy of the State. It would be to the contravention of that policy and to the inconvenience of the citizens of this State if its courts should give effect to the statutes of Lower Canada in respect to purchases from traders to the divesting of titles to movable property, acquired and held under the law of New York, without the assent or intervention, and against the will of the owner under that law. Notions of property are slight when a bona fide purchaser of stolen goods gives a good title against the original owner. Kent, C. J., in Wheelwright v. De Peyster, 1 Johns. 471. It is not required

to show comity to that extent. The case of Cammel v. Sewell, 5 H. & N. 728, was concerning property sold in Norway, which had not been in England until after that sale and had never been in possession of the English owners. See, as sustaining the case at bar, Greenwood v. Curtis, 6 Mass. 358; Taylor v. Boardman, 25 Vt. 581; Martin v. Hill, 12 Barb. 631; French v. Hall, 9 N. H. 137; Langworthy v. Little, 12 Cush. 109. Such cases as Grant v. McLachlin, 4 Johns. 34, and The Helena, 4 Rob. Ad. 3, do not conflict. In them there were, in the foreign country, legal proceedings in rem, or analogous thereto, so that the question was as to respect for the judicial proceedings of another country. Order of General Term reversed and judgment on report of referee ordered. Edgerly, appellant, v. Bush. Opinion by Folger, C. J. [Decided June 1, 1880.]

OF EVIDENCE — ERROR.

CRIMINAL LAW -TRIAL-CHARGES AS TO WEIGHT Upon the trial of an indictment for murder, in which a verdict of manslaughter in the third degree was rendered, the judge, instead of informing the jury what must be established to make out the offense, and leaving it for them to determine whether it had or had not been done, said: "Enough has been proven if you believe the witnesses on the part of the people." Held, error. The attention of the jury was thus directed to evidence of inculpation merely, its weight was stated to them as sufficient in law to sustain a conviction for murder, so that the question of fact to which their minds were turned related to the credibility of certain witnesses and not to the weight or measure of their testimony or the existence of the intent. How far that testimony was modified by that produced by the defendant or what inferences should be drawn from any of it was excluded from their inquiry. This was overstepping the province of the judge. The opinion of the judge was calculated to make an erroneous impression upon the minds of the jurors, so that it could not bo said that the prisoner had at the outset of their deliberations an even chance that the conclusions of the jury would be unbiased. And the circumstance that the verdict was not "murder" but "manslaughter," was not sufficient to show that the charge did no harm. As the jury would feel relieved to some extent from the necessity of estimating for themselves the value of the evidence, the observation of the judge was not only erroneous but material. See Read v. Hurd, 7 Wend. 409; Fitzgerald v. Alexander, 19 id.402; Bulkeley v. Keteltas, 6 N. Y. 384; Stokes v. People, 53 id. 164. Judgment reversed. McKenna, plaintiff in error, v. People. Opinion by Danforth, J. [Decided June 8, 1880.]

NATIONAL BANK-CONSTRUCTION

OF FEDERAL

STATUTE STATE COURT HAS JURISDICTION IN ACTION AGAINST BANK IN ANOTHER STATE - ATTACHMENT AGAINST PROPERTY OF BANK.-In an action in the Supreme Court of New York against a National bank located in North Carolina, an attachment was issued and property belonging to the defendant in this State seized. The defendant objected to this proceeding on two grounds: First, that the Supreme Court has no jurisdiction; the Federal statute requiring actions against a National bank to be brought in the State where such bank is located (U. S. R. S., § 5198); and, second, that the court has no power to grant an attachment against such a corporation, that being forbidden by U. S. R. S., § 5242. Held, that the objection was not valid. In the absence of a statute conferring executive jurisdiction upon the Federal courts the State courts have the same power and jurisdiction in suits to which a National bank is a party as if it was an individual. Bowen v. First Nat. Bank of Medina, 34 How. Pr. 409; Cooke v. State Nat. Bank of Boston,

52 N. Y. 96. A construction which would forbid suits against a National bank outside of its State would prohibit suits by it outside, as the statute extends to actions by as well as against (Kennedy v. Gibson, 8 Wall. 498), and prevents it from fully exercising the powers conferred upon it. Beside the statute (U. S. R. S., § 5136, subd. 4) declares that such a bank may sue and be sued in any court of law and equity as fully as any natural person." The provision as to local jurisdiction is to be construed as permissive, and not as mandatory, and therefore not limiting the general rule which permits civil causes arising under the laws of the United States to be prosecuted and determined in the State courts unless exclusive jurisdiction of them has been vested in the Federal courts or unless Congress has prohibited the State courts from entertaining jurisdiction of such cases. Claflin v. Houseman, 93 U. S. 130; 1 Kent's Com. 395, 396; Bank of United States v. Devereaux, 5 Cranch, 85; Osborn v. United States Bank, 9 Wheat. 738; Teall v. Felton, 1 N. Y. 537. See, also, Houston v. Moore, 5 Wheat. 1. The general liability to sue and be sued subjects those banks to an action in any court in which an individual in like circumstances might be sued, and the subsequent enumeration of particular courts without words of exclusion cannot have the effect to deprive other courts of jurisdiction. Owens v. Woosman, L. R., 3 Q. B. 469. Otherwise a citizen of this State having a claim upon land in which a bank in another State has an adverse interest would be compelled to go there to assert his rights, which is contrary to what was decided by the U. S. Supreme Court in Casey v. Adams, 21 Alb. L. J. 376. As to the claim that the attachment is prohibited by section 5242, that section has reference to banks in an insolvent condition only, and its object is to prevent one creditor of a corporation whose assets are insufficient to meet its liabilities from obtaining a preference. Order affirmed. Robinson v. National Bank of Newberne, appellant. Opinion by Danforth, J.

[Decided June 8, 1880.]

WILL-CONSTRUCTION OF

DEVISE OF FEE.-A will contained this provision: "I give and bequeath my beloved wife Susan one-third part of all my property, both real and personal, and to have the control of my farm as long as she remains my widow, and I wish my son George to have the first privilege of carrying on the farm as my wife may see fit and proper, and at the death of my wife all my property, both real and personal, to be equally divided between my eight children. Held, to give the wife a fee in one-third of the testator's real estate, and not a life estate in such third. The residuary clause of the provision is not repugnant to the prior gift under the rule which requires a will to be so construed as to avoid, if possible, all repugnancy and give effect to all its language. There is no occasion to reject one of the clauses in order to sustain the other, a desperate remedy and to be resorted to only in case of necessity, so that one rather than both provisions should fail. Trustees, etc., v. Kellogg, 16 N. Y. 83; Van Nostrand v. Moore, 52 id. 20; Covenhoven v. Shuler, 2 Pai. 122. This case is within the rule stated in Thornhill v. Hall, 2 Cl. & F. 22, as one which admits of no exception in the construction of written instruments, that when one estate is given in one part of an instrument in clear and decisive terms such estate cannot be taken away or cut down by raising a doubt upon the extent or meaning or application of a subsequent lause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that estate. Order affirmed. Roseboom v. Roseboom et al., appellants. Opinion by Danforth, J.

[Decided June 8, 1880.]

UNITED STATES SUPREME COURT

ABSTRACT.

OCTOBER TERM, 1879.

EQUITABLE ACTION SPECIFIC PERFORMANCE PRICE NOT DEFINITELY FIXED.-C. was indebted to a bank in a large sum; there were several judgments in its favor against him and he had a suit in chancery against it for an adjustment. An agreement in writing was made in 1846, between it and him in which, among other things, it was agreed that he should convey to it his undivided share in certain real property, after allotment in a suit for partition, which he agreed to bring, at such price as three appraisers to be appointed by the parties should estimate; such price to be credited on the judgments against him. Much of the agreement was performed, but in reference to that part relating to the partition and conveyance it was not. C. died, and subsequently his devisees, in 1866, effected a partition, which fact did not come to the knowledge of the bank until 1872. In 1876 it brought this action in equity for relief against the executors and devisees under the will of C. Held, that in such a case a court of equity might entertain an action for specific performance. While the general rule is that a court of equity cannot enforce specific performance when the price to be paid for it is not definitely fixed, and it cannot enforce an agreement to submit that price to the award of arbitrators, this case differs from those in which that rule applies. In view of a court of equity a contract for the sale of land is treated, says Justice Story, for most purposes, precisely as if it had been specifically performed. The vendee is treated as the owner of the land and the vendor as the owner of the money. The vendor is deemed in equity to stand seized of the land for the benefit of the purchaser, and the trust attaches to the land so as to bind the heir of the vendor. 1 Story's Eq. Juris., § 790. Of course the equity here stated is the stronger when the purchase-money is actually in the hands of the vendor. Nor is the principle inflexible that the court will not specifically enforce the contract where the price is not fixed or is left to be fixed by arbitration. In Cheslyn v. Dalby, 2 Y. & C. Exch. Cas. in Eq. 170, Cheslyn being indebted to Dalby in a large unliquidated sum, gave a deed of trust to Dalby for money borrowed at the time, with a stipulation that it should also stand as security for the unliquidated debt of Dalby to be afterward ascertained by arbitration. Cheslyn having paid the principal sum secured by the deed of trust, brought suit for a reconveyance, and Dalby filed a cross-bill to have his debt paid out of the property before this was done. The objection was raised that this was in the nature of specific performance, and the amount being uncertain, and no award having been made, it could not be done. But the objection was overruled. Baron Alderson says: "1. It is admitted there is some balance due to Thomas Dalby, and it is agreed that the estate is to be subject to a lien for that balance. But secondly, there is also an agreement as to a specific mode of ascertaining that balance in case of dispute. Now, the latter has failed by events over which the parties have no control. But it seems to me, notwithstanding this, the former part remains entire, and if Mr. Cheslyn has admitted that there is a balance due, and has by a deed executed under such circumstances as that it ought to be enforced, agreed that his estate should be subject to a lien for that balance, why am I to decree a reconveyance of the estate without compelling him to fulfill that part of the agreement." It was accordingly referred to a master to state an account in which this unascertained balance of Mr. Dalby's debt should be included. In Dinham v. Bradford, L. R., 5 Ch. App. 519, where one partner was in a certain event to take the partnership assets

at a valuation to be ascertained precisely as in the case before us, Lord Hatherley said: "Here is a man who has had the whole benefit of the partnership in respect to which this agreement was made, and now refuses to have the rest of the agreement performed on account of the difficulty which has arisen. * * * If the valuation cannot be made modo et forma the court will substitute itself for the arbitrators." Decree of Dist. of Columbia Sup. Ct. reversed. Gunton et al., appellants, v. Carroll et al. Opinion by Miller, J.

UNITED STATES-NOT LIABLE FOR MONEYS DEPOSITED IN PROCEEDINGS FOR CONFISCATION.-The United States seized certain cotton, belonging to appellants, under the Confiscation Act. The proceeds of sale thereof were paid to the clerk under an order of the court pending condemnation proceedings, and were by him deposited in the S. bank, a designated depositary of public moneys, to his own credit as clerk. Judgment in the proceedings mentioned was rendered in favor of appellants. In the meantime the S. bank had become insolvent and except a small dividend, depositors were not paid. Held, that the deposit made by the clerk was not equivalent to a payment into the treasury so as to make the United States liable to the appellants for the loss occasioned by the bank's insolvency. The designated depositaries are intended as places for the deposit of the public moneys of the United States; that is to say, moneys belonging to the United States. No officer of the United States can charge the government with liability for moneys in his hands not public moneys by depositing them to his own credit in a bank designated as a depositary. In this case the money deposited belonged for the time being to the court, and was held as a trust-fund pending the litigation. The United States claimed it, but their claim was contested. So long as this contest remained undecided the officers of the treasury could not control the fund. Although deposited with a bank that was a designated depositary it was aot paid into the treasury. No one could withdraw it except the court or the clerk, and it was held for the benefit of whomsoever in the end it should be found to belong to. Judgment of Court of Claims affirmed. Branch et al., appellants, v. United States. Opinion by Waite, C. J.

ILLINOIS SUPREME COURT ABSTRACT. MARCH AND MAY, 1880.

CONSTITUTIONAL LAW-VALIDATING INVALID CONTRACTS.- Previous to 1875 corporations generally had not the power to loan money in Illinois. By an act of the Legislature of that year corporations of other States authorized by their charter to loan money were allowed to loan money in Illinois, and where such a corporation had previously invested and loaned money it was given power to recover the same. Held, that the statute would validate a contract of loaning previously made, and a mortgage security taken thereupon when no rights of third parties intervened, and that it was not in conflict with the Federal Constitution. Under such circumstances the mortgagor would have no such equities as would give him a vested right as against the equities of the mortgage company. party cannot have a vested right contrary to equity and justice. When such statutes go no further than to bind a party by a contract which he has attempted to enter into, but which was invalid by reason of some personal inability on his part to make it, or through neglect of some legal formality, or in consequence of some ingredient in the contract forbidden by law, the question they suggest is one of policy and not one of constitutional power. United States Mortgage Co. v. Gross. Opinion by Baker, J.; Walker, J., dissented. [Decided March 6, 1880.]

A

EVIDENCE-SWORN COPY OF PAPER OUTSIDE OF JURISDICTION.- When an original paper was without the jurisdiction of the court and the person in whose possession it was refused to surrender it, he having been examined on commission, a sworn copy was annexed to his deposition; held, under the rule that when the best evidence is unattainable secondary evidence is recoverable, the copy was competent evidence. Binney v. Runell, 109 Mass. 55; Brown v. Wood, 19 Mo. 475; Burton v. Driggs, 20 Wall. 125. Fisher v. Green. Opinion by Craig, J.

TROVER -LIES FOR GRAIN INTERMINGLED WITH OTHER GRAIN WHEN CONVERTED.-Appellee held warehouse receipts for 6,000 bushels of barley stored in the warehouse of R., which grain was intermingled with other barley, the whole amount aggregating 18,000 to 20,000 bushels. R. being indebted to a bank, had executed to it trust deeds of the warehouse under which it took possession of that and the grain therein, and refused to deliver the amount for which appellee held receipts, although there was enough grain to meet all outstanding receipts. Held, that appellee could maintain trover against the bank for conversion of the 6,000 bushels of grain. If two persons were the joint owners of a specific chattel, and one were to sell it and convert the proceeds to his own use, will it be contended that the other joint owner could not sue in trover, and recover damages for the loss of his half? Trover being for the recovery of damages sustained by the plaintiff for the conversion of his property, it cannot matter whether he holds the property thus converted jointly with another, or in severalty. His right of property in either case is the same, and the damage he sustains is not different; and reason and justice require that the means of obtaining his rights should be the same in either case, nor is there any technical rule which prohibits it. In Chitty on Pleading, 167, it is said the action lies against any person who had in his possession, by any means whatever, the personal property of another, and sold it, or used it without the consent of the owner, or refused to deliver it when demanded. And it has been held that a person owning property mingled with that of another may, on its conversion, maintain the action. In Jackson v. Anderson, 4 Taunt. 24; Whitehouse v. Frost, 12 East, 614; Benjamin v. Stremple, 13 Ill. 466, and Boyle v. Levings, 28 id. 314, it was held that one tenant in common of a chattel may maintain trover against the other tenant in common where he has converted the property to his own use. This right was held to be given under the statute, but it only enlarges the common-law right. German National Bank v. Meadowcroft. Opinion by Walker, C. J.

WILL-CONDITION PRECEDENT TO DEVISE MUST BE STRICTLY PERFORMED — EQUITY.- Where the vesting of title in an estate devised is subject to a precedent condition the condition must be strictly performed and equity will not vest it contrary to the law. Where there is a substantial deviation from the intent of the testator, as expressed in the will, the title will not vest. Kent, in vol. 4, § 125, in discussing this subject, says: "Precedent conditious must be literally performed, and even a court of chancery will never vest an estate when, by reason of a condition precedent, it will not vest in law. It cannot relieve from the consequences of a condition precedent uuperformed." In Vanhorne v. Dorrance, 2 Dall. 317, it is said: "Where an act is previous to an estate, and that act consists of several particulars, every particular must be performed before the estate can vest or take effect." See, also, 1 Jarman on Wills (2d ed.), 672, and notes; Reynish v. Martin, 3 Atk. 330. In the last case it is said: "But in our law, where the condition is precedent, the legatee takes nothing till the condition is performed, and consequently, has no right to come