Putnam, 90 Me. 431, 37 Atl. 661, 38 L. R. A. 349, and De Camp v. Dobbins, 29 N. J. Eq. 41, holding where property is left to charitable institute in excess of capital allowed by law, legislature may later amend law. Approved in Literary Fund v. Dawsons, 1 Rob. (Va.) 418, holding devise to unincorporated society fails for omission to provide in will for subsequent corporation.

Executory devises are not to be governed by rules of law ap plicable to common-law conveyances; the only question is whether contingencies are to happen in reasonable time or not, p. 117.

Cited approvingly in Miller v. Chittenden, 2 Iowa, 376, reviewing cases and sustaining grant to trustees to hold for charitable use without naming specific beneficiary.

Wills. Courts will seek and enforce any general intent of testator consistent with rules of law; and if testator has prescribed modes of carrying it into effect which law does not permit, court must give effect to general intention although the mode fail, p. 117. Cited and principle affirmed and applied as follows: Jackson v. Phillips, 14 Allen, 556, where devise was to trustees to create public sentiment against slavery, to act without bonds, held trust valid but waiver of bonds void; Den v. McMurtrie, 15 N. J. L. 280, gathering and enforcing apparent intent from unintelligible devise of lands; Moore v. Lyons, 25 Wend. 124, holding in devise of remainder to B and C, or survivor, survivor at time of testator's death was intended; Shotwell v. Mott, 2 Sandf. Ch. 59, holding devises to poor of certain town and to certain society are not void for uncertainty; Pell v. Mercer, 14 R. I. 430, holding where will directs purchase of certain bonds, clause does not fail because such bonds cannot be had; Literary Fund v. Dawsons, 1 Rob. (Va.) 421, 423, holding where devise depends on legislative action, testator intended it to act in reasonable time; Literary Fund v. Dawsons, 1 Rob. (Va.) 427, holding where will provides trustees shall apply for statute, intent is complied with if act is passed without application; Dunlop v. Harrison, 14 Gratt. 257, 260, collecting cases and holding illegal provision for holding slaves in trust for free negroes does not defeat alternative that slaves be sold for their use. Approved in Lepage v. McNamara, 5 Iowa, 145, holding where devise is void for uncertainty court cannot give effect to will by modelling new provisions; Virginia v. Levy, 23 Gratt. 40, holding gift of land for benefit of children of United States navy warrant officers void for uncertainty; Magill v. Brown, 16 Fed. Cas. 433.

Trusts. Whenever a person, by will, gives property and points out the object, the property, and the way in which it shall go, a trust is created, unless he shows clearly that his expressed desire shall be controlled by the trustee, p. 119.

Cited with approval and applied in Johnson v. Mayne, 4 Iowa, 195, reviewing cases and holding property left to church incapable of tak.

ing legal title, is charged with trust in favor of church; Moore v. Moore, 4 Dana, 357, 29 Am. Dec. 420, holding equity will enforce devise directing sale of estate and application of proceeds to education of poor orphans of county; Wade v. American Col. Soc., 7 Smedes & M. 695, 45 Am. Dec. 328, holding will providing for transportation of slaves imposes a trust which equity will enforce; McIntire v. Zanesville, etc., Co., 9 Ohio, 288, 34 Am. Dec. 438, holding devise of land for benefit of poor of Zanesville, upon death of daughter without issue, creates valid trust; In re John's Will, 30 Or. 531, 47 Pac. 353, 36 L. R. A. 254, holding where devise in trust for charity does not provide for conveyance to trustees, it is still charged with trust, and equity will remedy omission; Bell Co. v. Alexander, 22 Tex. 362, 73 Am. Dec. 274, holding devise of land to county for benefit of school children vests title in county in trust. Cited but without particular application in White v. Keller, 68 Fed. 802, 30 U. S. App. 275, holding that devise of land in Mississippi should be controlled by law of that State.

Repeal of statute.- Where act is passed incorporating certain persons to enable them to take and manage property according to terms of a will, such act is repeal pro tanto of statute prohibiting devise to corporation, p. 119.

Cited with approval in San Antonio v. Odin, 15 Tex. 545, holding where Texan congress declared lands to belong to bishop in trust for congregations, such declaration may be construed as legislative grant.

Citizenship. All persons born within the colonies of North America, whilst subject to crown of Great Britain, were naturalborn British subjects, p. 120.

Cited and relied upon in United States v. Wong Kim Ark, 169 U. S. 659, 42 L. 894, 18 S. Ct. 460, reviewing cases and holding Chinese, born in United States of alien parents having permanent residence here, are citizens of United States; McKay v. Campbell, 2 Saw. 122, F. C. 8,840, holding person born in Oregon of British parents during joint occupation is British subject.

Alienage. According to American rule, American ante-nati ceased to be British subjects from date of declaration of independence; according to English rule, from date of treaty of peace in 1783, p. 121.

Cited with approval and rule applied in United States v. Ritchie, 17 How. 540, 15 L. 240, and United States v. Lucero, 1 N. Mex. 455, holding declarations of civil equality by Mexican independent government invested Indians with privilege of citizenship; McKinney v. Saviego, 18 How. 238, 15 L. 367, holding person moving from Texas to Mexico prior to former's declaration of independence is an alien; State v. Adams, 45 Iowa, 101, 24 Am. Rep. 762, holding person remainVOL. III-3

Approved and rule applied in Ferguson v. Porter, 3 Fla. 39, holding gratuitous factor liable for loss of goods shipped to Charleston, instead of New Orleans as ordered.

Agency. If principal, with full knowledge of facts, receives and sells goods purchased for him contrary to his orders, without signifying intent to disavow agent's acts, jury may fairly infer a ratification, p. 81.

Approved and applied in the following citing cases: Perkins v. Currier, 3 Wood. & M. 86, F. C. 10,985, holding where lessee of business makes unauthorized change, and lessor, knowing all facts, acquiesces for long time, there is ratification; Hitchcock v. McGehee, 7 Port. 562, holding silence of principal does not amount to ratification of acts of which he is not informed until lapse of great length of time; Lee v. Fontaine, 10 Ala. 771, 44 Am. Dec. 513, holding principal ratifies agent's deviation by his silence when he does not object to same in reasonable time; Minnesota L. O. Co. v. Montague, 65 Iowa, 73, 21 N. W. 187, holding principal's silence for more than reasonable time after he ought to have learned the facts of agent's transaction, amounts to ratification; Low v. Railroad Co., 45 N. H. 379, holding corporation liable for services rendered in perfecting its organization, where company takes benefit of services with full knowledge of facts; East Tenn. R. R. v. Nelson, 1 Cold. 279, holding ratification of principal is question of fact for jury where principal received and sold goods without objection.

Measure of damages for breach of agent's orders is the positive and direct loss from such breach; speculative damages, dependent on possible successive schemes, should not be allowed, p. 85.

Cited with approval and rule applied in McAlpin v. Lee, 12 Conn. 133, 30 Am. Dec. 610, holding, in action for price of goods sold, damages will not be reduced, because superior goods contracted for were of greater value than contract price; Tide Water, etc., Co. v. Archer, 9 Gill & J. 535, holding, in condemning land for canal, only damages for direct loss resulting immediately from canal may be allowed; McWhirter v. Douglas, 1 Cold. 603, refusing to award damages for breach of promise to pay difference in profits of two businesses; Stell v. Paschal, 41 Tex. 644, holding, in action for breach of contract for sale of cotton gin, speculative profits as ginner not proper element of damages; dissenting opinion, Moses v. Old Dominion, etc., Co., 82 Va. 29, holding, in action by lessor against lessee for damages to building, actual compensation is measure of damage. Cited, but without particular application, in Tremain v. Cohoes Co., 2 N. Y. 165, 51 Am. Dec. 285, holding, in action for damages to property by blasting, evidence of defendant's care is inadmissible.

Damages.- Actual loss of profits from sale of article which agent has failed to purchase for principal may be allowed, but not vindictive damages, pp. 85-86.

Approved and rule applied in Ryder v. Thayer, 3 La. Ann. 150, holding damages for agent's failure to ship goods as directed is their value at port of destination, without exemplary damages; Farwell v. Price, 30 Mo. 593, holding, in action by principal against agent for conversion of goods at New Orleans, consigned to Boston, measure of damages is value of goods at Boston; Heineman v. Heard, 2 Hun, 332, holding, in action against agent for failure to buy silk as ordered, measure of damages is profit at place of consignment. Approved in Heineman v. Heard, 50 N. Y. 37, holding loss of profits is element of damages in action against agent for failure to buy silk as ordered. Cited, but without particular application of the rule, in Barbour Co. v. Horn, 48 Ala. 577, holding, in action for damages for personal injuries, jury may not consider wealth of parties; Frink v. Coe, 4 G. Greene, 559, 61 Am. Dec. 144, holding exemplary damages may be given for gross negligence of stage company in employing known drunken driver; Warwick v. Chase, 23 Md. 161, holding, in action for damages for agent's breach of orders, measure of damages is too uncertain to permit attachment.

Distinguished in Ex parte Becker, 3 Fed. Cas. 19, holding, where goods are to be delivered at Boston for sale abroad, measure of damages is market price at Boston.

3 Pet. 87-91, 7 L. 612, MAGRUDER v. UNION BANK.

Bills and notes.- Payment must be demanded from maker of promissory note and notice of non-payment forwarded to indorser in due time to render indorser liable, p. 90.

Cited and applied in Thorn v. Rice, 15 Me. 266, holding no sufficient notice to indorser where holder of note gave letter of notice to neighbor of indorser to give to latter. Cited, but without particular application of the rule, in Cox v. National Bank, 100 U. S. 712, 25 L. 741, holding, where notary could not with due diligence find acceptors of bill of exchange, demand at customary haunts and notice to indorsers at best-known address is sufficient.

Bills and notes.— Where maker of promissory note dies before its maturity and letters of administration are taken out by the indorser, demand and notice of non-payment must nevertheless be made before indorser becomes liable, p. 91.

Cited, affirmed and applied as follows: United States Bank v. Tyler, 4 Pet. 384, 7 L. 894, holding indorser is not liable on note when maker has been allowed to escape from jail and holder has uot sued jailer; Toby v. Maurian, 7 La. 495, holding, where maker

dies on last day of grace and notary thereupon protests note and notifies indorser, no demand sufficient to bind indorser; Union Ins. Co. v. Rodd, 26 La. Ann. 715, holding action will not lie against indorser of note in absence of demand on maker, unless impossibility of demand is proved; Carolina Bank v. Wallace, 13 S. C. 353, 36 Am. Rep. 698, holding, where maker of note is also executor of indorser, he is nevertheless entitled to notice of non-payment; Hutchison v. Crutcher, 98 Tenn. 436, 39 S. W. 729, 37 L. R. A. 93, holding, where note is payable at certain bank and said bank is closed by insolvency, holder of note must present same to receiver to hold indorser. Approved in Barriere v. Samory, 10 La. Ann. 108, holding three or four hours' search and many inquiries by notary constitute due diligence to find maker.

Executors and administrators.- Where the same person is administrator of the maker of a note and also indorser of the note, the two characters are as entirely distinct as if the persons had been different, p. 90.

Approved and applied in Smith v. Hurd, 7 How. (Miss.) 200, holding, in action against defendant as executor, no decree can be made affecting his rights as guardian.

Miscellaneous.- Union Bank v. Magruder, 7 Pet. 287, 291, 8 L. 688, 689, a second appeal of principal case affirming court's previous decision.

3 Pet. 92-98, 7 L. 614, CHINOWETH v. HASKELL.

Demurrer to evidence.- Where defendants withdraw their case from the jury by den.urrer to evidence or submit to verdict for plaintiff, subject to such demurrer, judgment for plaintiff will not be reversed unless the verdict cannot be sustained by any fair construction of evidence, p. 96.

Approved and applied in Pickel v. Isgrigg, 6 Fed. 679; S. C., 10 Biss. 233, holding plaintiff, on whom rests burden of proof, may not demur to defendant's evidence; Higgs v. Shehee, 4 Fla. 394, holding court will order new trial when evidence demurred to is so uncertain that a jury could not render verdict upon it. Approved in note to People v. Roe, 1 Hill, 472, collecting cases.

Public land grants.- Courses and distances are less certain and permanent guides than natural fixed objects on the land; but, in absence of distinguishable natural objects in description, courses and distances must be followed, p. 96.

Cited approvingly and followed in Doe v. Cullum, 4 Ala. 582, holding dispute as to starting point of description must be settled by measuring back from another corner by course and distance; Bruckner's Lessee v. Lawrence, 1 Doug. (Mich.) 28, reviewing cases, holding courses and distances in patent are not disputable by parol