under which property had been taken served on Weld & Co. and on the makes application to the bankrupt sheriff. court, by petition, to allow the sheriff On the 6th day of July, 1870, Weld to proceed to sale, &c., and obtains & Co. presented a petition to the dis the order asked, under which the proceeds are paid into the bankrupt court, he is bound by it. trict court asking that the injunction be so modified as to allow the sheriff to In error to the Supreme Court of the sell the property of Frederick Wiltse levied on by the sheriff previously to State of New York. This is an action brought to recover filing the petition in bankruptcy. On $4,404.72 collected by the plaintiff in er- this petition of Weld & Co. an order ror as sheriff of the city and county of was made granting its prayer, directing New York, under three executions, two the time and manner of sale, and orderof which were issued on judgments en- ing that after deducting costs and tered in favor of the defendants against charges, the avails of the sale should be Frederick and Albert Wiltse, jointly brought into the district court to await and severally, and one of which was its further orders. The order was enissued on a judgment entered in favor of tered with the clerk of the district the defendants against Frederick Wiltse court by and upon the motion of the counsel of Weld & Co., and served upon the sheriff. alone. The defence relied upon is that the A sale was made in pursuance thereplaintiff in error, under certain orders made by the United States District of, and the money resulting from the Court for the Southern District of New sale was paid into court by the sheriff, as therein required. We'd & Co. now York, in a proceeding in bankruptcy against Frederick Wiltse, paid over to sue the sheriff for not paying this the clerk of that court the moneys money to them, upon their executions, arising from the sale of the property instead of paying it into court. To a levied on by him under said execution. plea setting up the facts above stated, a On the 12th of March, 1870, Freder- demurrer was interposed by the plainick Wiltse was thrown into bankruptcy tiffs, which was sustained by the Suupon the petition of one of his cred-preme Court and the Court of Appeals itors. Prior to this time Weld & Co., of the State of New York, and judgthe defendants in error, had obtained ment rendered against the sheriff. against the Wiltses the judgments above mentioned, and executions upon the same were in the hands of O'Brien, who was then the sheriff of the city and county of New York. The writ of error before us is to re view that judgment. In support of this judgment it is contended that the United States District Court is a court of limited jurisThe petitioning creditor in bank- diction; that it has not the power to divest a state court of its jurisdiction; ruptcy, on the 24th of March, 1870, obtained from the district court an in- that the title to the property levied on junction order directed to Weld & Co. by virtue of the judginent and execuand to the sheriff, O'Brien, restraining tion from the state courts was superior them from disposing of Frederick to that derived from the orders of the Wiltse's property until the further order district court; and that the orders diof the court. This order was duly recting the payment of the money in question into the district court were without jurisdiction and void. It is further contended in support of this judgment that if the bankrupt court had authority to take the custody and control of the property from the state court, it could do so only by a suit at law or in equity, and not by summary proceedings, and that an order made in such summary proceeding is absolutely void. Held, That the assignee is such case, if he desired to obtain the property held under state authority, must litigate his claim by a plenary suit, either at law or in equity, and that it could not be done by a mere rule. APPROPRIATION OF PAY MENTS. SUPREME COURT OF PENNSYLVANIA. Decided March 29, 1876. In the absence of appropriation by the parties, the law applies payments first to the interest, and then to the Where a debt is payable in a commodprincipal of the debt. ity, a failure to make or offer such payment fixes a liability to pay in money. Error to Common Pleas of Bradford county. Scire facias to revive a judgment entered on a bond, brought by Moore against Erastus Kiff, Samuel Kiff, and John Kiff. Defendants pleaded payment with leave. But as the plaintiff in the execution himself took the proceeding in the bankrupt court, and there obtained On June 24, 1846, Moore sold a rules and orders, he is bound by farm, with the stock thereon, to the them. That the plaintiffs in the exe- defendants, the latter agreeing, by the cutions under these facts can maintain contract of sale, to give him their joint. a suit against the sheriff for paying the and several promissory notes for $3150 money into court in pursuance of the with interest from March 4th previous, order obtained by them, instead of and to execute a judgment bond conpaying it to them, is sustained by no ditioned for the payment of the said authority, and is in violation of the notes. On the same day the defendprinciples of right and justice. ants executed ten joint and several If the execution creditor, upon the judgment notes, payable one each year, claim of the assignee, had simply di- amounting in the aggregate to $3150, rected the sheriff, without the form without interest, but gave ten other of an order of the court, to pay the notes for the interest, payable in pork money into bankruptcy, the sheriff and sugar. A bond with warrant of would have been justified in complying with the direction. Especially is he bound, when, as in the present case, his direction is clothed with the solemnity of a legal proceeding, and the money is received and distributed under the forms of law. The judgment must be reversed, and the case remitted to the Supreme Court of New York for further proceedings. Opinion by Hunt, J. attorney to confess judgment was also executed for $3150, conditioned for the payment of the ten principal notes. Two days later judgment was entered upon this in the Common Pleas of Bradford County. On November 28, 1849, defendants resold the farm to Moore, he agreeing to accept it at the rate of $5.50 per acre, in part payment of the above notes. On January 8, 1868, Moore brought this scire facias. It appeared from the evidence that Verdict for the defendant and judg the undisputed payments amounted to ment thereon. $2831. Samuel Kiff had transferred Held, The learned judge erred in to Moore a farm at a valuation of instructing the jury that the payment $1000, the surplus of which, remaining made by the defendants must be apafter payment of his private debts to plied to the principal of the debt in Moore, was to be applied towards the controversy to the exclusion of the inliquidation of these notes. Defendants terest notes. He places this upon the claimed that $910 thereof went toward ground that the latter were barred by the notes, $330 more than Moore the statute. The error of this reasonallowed. They likewise claimed credit ing consists in the fact that at the time for a payment of $200 in sugar, thus of the agreement of November 28th, swelling the payments to $3371-more 1849, the interest notes referred to than the face of the bond. were not barred. No special instructions were requested by the plaintiff. Where money is paid generally upon a debt, the obvious rule is to apply it first to the interest, if any, in arrears, and then to the extinguishment of the The court below (Streeter, P. J.,) charged inter alia, as follows: "Erastus Kiff swears that Moore received a principal. The parties evidently confarm of $1000 to apply on these notes, templated the payment of the debt due and Samuel Kiff testifies that his pri- Moore, not merely the principal of that vate debt was first taken out, but the debt. Nor is the fact that the interest amount of it he cannot state; he recol- notes were payable in pork and sugar, lected that he owed him $90 for a horse material, unless there had been an offer The defendants insist that this credit to show payment in those particular should be $910 instead of $570. It is commodities. The defendants had a for you to determine under the evidence right to pay in pork and sugar. An which is the true amount. * * offer to do so would have been a sufficient answer to a demand for payment. But a failure to show either payment or an offer of payment, in these articles, fixes the liability of the defendants to pay in money. We understood from the evidence that the price of the 350 acres resold to plaintiff, as well as the amount paid by Samuel Kiff, was to apply upon the debt in judgment now sought to be revived. But the counsel for the plaintiff' Judgment reversed and a venire insisted that these payments. must be facias de novo awarded. applied to the interest notes first, and the balance to the judgment. No Opinion by Paxson, J. money or sums were ever applied by WILL. If you find for the plaintiff, it seems to us that the amount should be $319, with interest from June 24, 1856." To this charge the plaintiff excepted before verdict. RESTRAINT OF MAR- ENGLISH HIGH COURT OF JUSTICE. Allen v. Jackson. Decided December 13, 1875. A condition in the will in restraint of the second marriage whether a man or a woman is not void. This was an appeal from a decision of Vice Chancellor Hall. By a codicil the testatrix gave Jane McCormick an annuity out of the income of the trust property. The testatrix died in January, 1863. Ellen Ada Jackson died in January, 1864, without issue. In January, 1874, her husband, R. N. Jackson, married again. The Vice-Chancellor held that the proviso defeating the life estate of the husband on his second marriage was void, and that he was entitled to the income of the property notwithstanding his second marriage. Mrs. McCormick and her children appealed from this decision. Mrs. Frances Jackson, a widow, by her will, dated the 7th of March, 1862. bequeathed the residue of her estate. and effects to T. Allen and W. H. Jack son, whom she appointed her executors, upon trust out of the annual income to pay to her niece and adopted daughter, The trustees filed the present bill Ellen Ada Jackson, the wife of the de- against R. N. Jackson and Mrs. McCorfendant, Robert Noble Jackson, the an-mick and her children, praying for exenual sum of £40 for her life for her sole cution of the trusts of Mrs. Jackson's and separate use, and, in the next place, will, and for a declaration that R. N. to pay the whole remaining income un- Jackson had forfeited his life interest to her nephew, the defendant, R. N. in the trust property. Jackson, and the said Ellen Ada Jackson and their assigns during their joint lives, and after the decease of either of them then to the survivor during his or her life for their, his or her own use and benefit. Provided, nevertheless, and she detlared her will to be, that if the said Ellen Ada Jackson should depart this life in the lifetime of her husband, the said R. N. Jackson, and he should marry again. then she directed her said trustees and the survivors of them to stand possessed of the said trust property upon the trusts therein after declared. And after the decease of her It seems to have been laid down by a said niece and her surviving husband, great number of cases that what is called if any, and subject to his marrying a a general restraint upon marriage is second wife as aforesaid, she directed against the policy of the law. That, the said trustees or trustee to stand pos- of course, can be the only principle. sessed of the said trust property in trust which can be the foundation of any rule for the children and grandchildren of at all on the subject. The general reher said niece, Ellen Ada Jackson, as straint of marriage, for some reason or therein mentioned, and in default of other, probably a good reason, is to be children or grand children of her said discouraged, and a condition subseniece, then in trust for the children of quently annexed, by way of forfeiture the testatrix's sister, Jane McCormick, to a marriage is therefore void. That who should be living at the time of the is the law both as to man and woman; death of her said niece without issue, but it has been most distinctly settled in equal shares as tenants in common. that with regard to the second marriage The will contained powers of mainten- of woman, that law does not apply, ance and advancement for the benefit that whether the gift be a gift to a widow by a husband or a gift to the of the infant children. Held, It is somewhat singular that, although something very like the question involved in this case was decided in the case of Evans v. Rosser, yet the exact point itself is now for the first time to be decided. widow by some other person, the law does not apply to that case, and that such a condition is perfectly valid. tate, and it is to go over for the benefit of my children." In this particular case it was not the wife who was doing Now, there is no act of Parliament it, but it was a person who places herself which has provided, and there is no de- in the position of the wife-the wife's cision of any court whatever which has mother-and who says, making a proestablished, that there is any distinction vision for her adopted daughter, that whatever between the second marriage she gives her the income of her propof a woman and the second marriage erty for her life, and then gives it, after of a man; and in the absence of any her death, to her surviving husband, decision to the contrary, we are unable evidently in his character of widower, to see any principle whatever upon with a declaration that if he should which the distinction can be drawn be- marry again it should go over to the tween them. The case before us seems child of the daughter who was the first to us to show what immense mischief object she intended to provide for—a one would be doing if one were to in- most reasonable and proper provistroduce a different rule of law in the ion, with respect to which it seems case of a widower to that in the case of a impossible to suggest that there is widow. Now, in the case of a widow, any ground of public policy against it. it has been considered to be very right On that ground simply, that there is no and proper that a man should prevent distinction in principle or authority behis widow from marrying again. Prob- tween the second marriage of a man ably, if she were a widow with children, and the second marriage of a woman, he might think that his children would we are prepared to say that the law not be so well cared for and protected should be the same as to the one as to if his widow formed a second alliance the other. and became the mother of a second We are of opinion that the gift over family. That might perhaps have been on the marriage of a widower is exactly the origin of the exception, and it was on the same footing as a gift over on the held, when the thing came to be ap-marriage of a widow. plied, that it might very well apply to The condition is not void. a gift by a stranger who was not the Opinion by James, L. J.; Mellish, husband. Supposing we had the case L. J. and Baggally, J. A. of a married woman having a property |