After giv.

other independent covenants in the same deed. The rule stated by the learned justice is sustained by all the cases above cited, and we see no reason for establishing a different rule in this State. It is evident that a grantor might be entirely willing to enter into a covenant of general warranty to defend the title and the possession of his grantee against the claims of all persons, and still as a matter of prudence, refuse to Covenant against an apparent incumbrance on the land. The case at bar is a case in point. The grantor had given a mortgage upon the premises. ing the same, she claims she had been defrauded by the mortgagee, and that a court of equity would, upon Her her application, declare the mortgage void. necessities however compel her to sell the lands before she has tested her right to have the mortgage avoided; and consequently in selling the land she might be willing to take the risk of warranting the title she couveys to the veudee, but as the mortgage is of record, and an apparent incumbrance, she might not be willing to subject herself to an action for a breach of the covenant against incumbrances before she can have time to contest her rights with the mortgagee, either by a direct action, or as defense to an action to enforce its collection out of the lands.

We are very clear that the exception of the mortgage in the covenant against incumbrances, standing aloue, does not furnish sufficient evidence upon which to base a finding of fact that the grantee in the deed took the title subject to the mortgage so excepted; and that the learned Circuit judge erred in so finding, and in excluding the evidence offered by the appellant to sustain her answor.

The case of Morrison v. Berry, 38 Iowa, 73, cited by the learned counsel for the respondent, is not in conflict with the authorities above cited in this opinion, or with the ruling of this court. In that case the exception of the mortgage followed all the covenants, and it was therefore held that the exception was a limitation upon the precedent covenants. The covenants were "that the grantor was seized of the premises; that they were free and clear of all incumbrances; that he had good right to sell, and that he would warrant and defend the premises against the lawful claims of all persons whomsoever, except a mortgage for $800 to Charles H. Buryhill." This exception, following all the covenants, may well be held to restrain and limit all the preceding covenants. The rule is however that when the limitation is in a precedent covenant, it does not limit or restrict the subsequent covenants, unless it clearly appears, from the whole deed, that such was the intention of the parties. We think there is no such clear intention to be found in the deed of Mrs. Hewitt and her husband.

The judgment of the Circuit Court is reversed, and the case is remanded for a new trial.

ing, label or ticket" within section 10 of the act, and was entitled to protection under the act.

Held also, that the mark might be used as a trade-mark in connection with lead of any shape, but that the plaintiffs had no monopoly in the sale of lead in the shape of a dome.

A

N action was brought by Messrs. Edward James & Son for an injunction to restrain the defendants who traded under the name of M. J. Parry & Co., from infringing the plaintiffs' trade-mark by using the design registered by the plaintiffs as a trade-mark. The defendants, by way of cross-motion, moved to rectify the register of trade-marks by the removal of the plaintiffs design therefrom. The action and motion came on for hearing together.

The plaintiffs, who were manufacturers of blacklead, some years ago designed a new shape of blacklead blocks, which were intended to be more convenient and preventive of waste, and were in form a cylinder rounded out at one end. The name of "dome" or "dome-shaped was applied to blacklead of the plaintiffs' manufacture, and they protected themselves in the monopoly of the manufacture of blacklead of that shape for three years by registering their design in 1861, under the Useful Designs Act (6 & 7 Vict., ch. 65), which was then in force, but has since been repealed.

In 1877 the plaintiffs registered a trade-mark which consisted simply of a representation in black of the shape in which their article was made up.

The defendants made what they called "cylinder" blacklead. It was made up in three shapes: One a short cylinder, flat at top and bottom; the other two shapes were a short and a louger cylinder, each round at the top like the plaintiffs' article.

The plaintiffs were in the habit of sending out their blacklead in boxes, with a trade label on the outside, which had in the middle of it a picture in black of one of their dome-shaped pieces of blacklead such as were contained in the box itself, with the words "Trade-mark" on it. The defendants also sent out boxes of blacklead with a label similar in character, which had upon it a representation in black of three pieces of blacklead in the three several shapes made by them.

Pearson, J., held that a pictorial representation of the actual article to which a mark is applied was not a proper trade-mark, and refused to grant the plaintiffs an injunction, and made an order that the mark of the plaintiffs was to be removed from the register of trade-marks. 54 L. T. Rep. (N. S.) 125; 31 Ch. Div. 340.

The plaintiffs appealed.

Sir R. Webster, Q. C., and Cozens-Hardy, Q. C., and Carpmael, for appellants.

The defendants did not appear.

COTTON, L. J. The only question which we have to decide is whether Pearson, J., was right in saying that a black dome could not be registered as a trade-mark under the Trade-marks Registration Act of 1875. The appellants cannot possibly claim any monopoly in the shape in which they sell their blacklead; that in my opinion is purported to be given to them by the registration, and they do not register a shape with the intention of claiming for themselves by that registration the sole right of selling blacklead in that shape. What they claim is the right to use this dome as a trade-mark on their blacklead, in whatever shape they sell it. No doubt the plaintiffs have in some respects rather led people to suppose that they are using this trade-mark as protecting the shape in which they make and sell their lead, but that they cannot do. Supposing this is a trade-mark which they annex

to blacklead in whatever shape they sell it, in my opinion there is nothing to prevent that mark being registered under the act as a trade-mark. What the act required is "a distinctive device, mark, heading, label or ticket," and this is a mark. Is it distinctive? I think it is. It is a mark which the plaintiffs have from 1861 downward used as a mark annexed to their blacklead, and it would be a distinctive mark even though they sold their blacklead in a different shape, such as a cube, or without any dome at the top of it. I think that is what Pearson, J., did not sufficiently regard. He considered what the plaintiffs had done as an attempt to register a picture of the thing sold as a good trade-mark. But it is not really that. This mark is claimed as a trade-mark, to be annexed either to the article sold, or to the boxes in which the article is sold. It is very true that the plaintiffs do sell their blacklead in the shape of a dome; but on the bottom of each bit of blacklead which they sell they impress as their trade-mark the picture or impression of a dome. They have done what perhaps is unfortunate; they have put the words "registered shape" at the bottom of these blocks. That is wrong. It is not the shape which is registered, but it is the mark, as distinctive of blacklead in whatever shape it is sold, which is registered. I think, that having regard to the words which I have read from the 10th section of the act, this mark can be registered as a trade-mark. In my opinion therefore the appeal must succeed. As regards the American cases which have been cited to us, of course one pays regard to the opinions expressed by judges of distinction in the United States. but their decisions do not in any way bind us, and it may be that the act with which they were dealing was not like this act in any way. In my opinion, those cases are not really any authority as regards the question we have to decide under this act of Parliament. The appellant has no exclusive right whatever to this shape. but in my opinion he is entitled to have his mark-both the letters and figure-registered as his trade-mark, and to affix that as his trade-mark to his blacklead, in whatever shape he sells it.

LINDLEY, L. J. I am of the same opinion. One must be careful not to say any thing which will lead to confusion. I take it that a mark is something distinct from the thing marked. The thing cannot be a mark of itself. But here we have got the thing, and we have got a mark upon the thing, and the question is whether that mark on the thing is or is not a distinctive mark within the meaning of the Trade-marks Acts. Of course it is obvious to all lawyers that the plaintiffs in this case have no monopoly in blacklead of this shape. Anybody may make blacklead of this shape, provided he does not mark it as the plaintiffs mark theirs, and provided he does not wrap it up and represent it as the plaintiffs' blacklead. There is no monopoly in the shape, and I cannot help thinking that that has not been quite kept in mind. What the plaintiffs have registered is a brand or mark intended to represent a dome. That that is a distinctive mark as a matter of fact is proved by the evidence, and that it can be a distinctive mark is obvious, I think, when you look at it. I do not know what cannot be a distinctive mark. You may say that certain things are not marks within the statute; but I cannot conceive why a mark such as the one we have here should not be a distinctive mark. Why should not the plaintiffs put it on their labels, and on the things which they make? Supposing they chose as for aught I know they may choose-to sell blacklead of this description in cubes or spheres, or in octagonal or other shapes, there is no reason why they should not mark the things made in those shapes with the device of a dome, and if they do, I cannot see there is any thing

contrary to the act in their claiming the benefit of that registered dome mark. It appears to me that for these reasons the decision of Pearson, J., in this case is incapable of being supported. As regards the American decisions, I quite concur in the observations made by Cotton, L. J. I cannot see why-according to English law, at all events-a fish should not be a distinctive mark for fishing-lines, though I can understand that a picture of a fish may not be a distinctive mark of that particular fish. But why a pig should not be, according to English law, a distinctive mark for lard or something made out of a pig, I do not know. Supposing you tanned pigskin into leather, I do not know why a pig should not be a good trademark for tanned pig's hide. I am not inclined to apply these cases to English acts of Parliament. I do not know any thing at all of the American acts, and I have not found the American definition, if there be one, of a trade-mark.

LOPES, L. J. The question in this case is, whether this device or block, which I find at the bottom of this block of blacklead, is capable of appropriation and capable of being registered. To be properly the subject of registration, it must be a distinctive device or mark not in common use. I suppose it cannot be for one moment said that what I find at the bottom of this block is not a mark. I very much doubt whether it could be possibly said that it was not a device. Then is it a distinctive device or mark? The meaning of the word "distinctive" I understand to be this: That it must be a mark or device of such a kind that in case of infringement it shall be clear what it is that is being infringed, and that the mark is something different from all other marks used in the same class of goods. I think the evidence in the case leads me to that conclusion. But then it is said this mark cannot be registered because it is a pictorial representation of the think itself. The answer to that appears to me to be that if this block, instead of being in the shape of a dome, had been in the shape of a cube, this device or mark which I find at the bottom of it would be sufficient. That is not denied for a moment. I can only say that I am at a loss to understand why, if it would be sufficient in the case which I have mentioned, it should be sufficient in the present case. Why is it the less a distinctive device or mark because it represents the thing upon which it appears? With regard to the American authorities I make only on observation. They appear to me to be of very little value, and to afford us very little assistance in deciding this case, unless we have also before us the act of Congress under which the questions arose. I think the decision of the learned judge below was wrong, and that this appeal must be

allowed.

Appeal allowed.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL

FINDINGS-INCONSISTENCY-EXECUTORS

AND ADMINISTRATORS-PRESENTATION OF CLAIMS REFERENCE-COSTS AND DISBURSEMENTS-LAWS N. Y. 1880, CH. 245. § 3, SUBD. 8; OLD CODE, § 317.-(1) A finding of a referee that a domestic servaut was treated like a daughter by her employer in not inconsistent with his finding that the relation between them was one of master and servant. (2) The right of a claimant to his disbursements upon the reference of his claim against a decedent's estate, given by section 317 of the old New York Code of Procedure, is preserved by Laws N. Y. 1880, ch. 245, § 3, subd. 8. From the judgment entered on the report of the referee, the General Term struck out the disbursements taxed

and allowed, upon the ground that section 317 of the old Code of Procedure, which provided for their taxation, was repealed by the Repealing Act of 1880, and the right was not preserved with subdivision 8 of section 3 of that act. Upon the construction of that saving clause there has been a difference of opinion in the Supreme Court. In Miller v. Miller, 32 Hun, 481, and Daggett v. Mead, 11 Abb. N. C. 116, the saving clause was held to prevent the destruction only of the right to sustain disbursements as were provided for in the Revised Statutes, and there being none such in a case like the present, there was nothing saved. To the contrary are Krill v. Brownell, 40 Hun, 72; Sutton v. Newton, 15 Abb. N. C. 452; Hall v. Edmunds, 67 How. Pr. 202; and Overhiser v. Morehouse, 16 Abb. N. C. 208. We think these last-cited cases establish the true construction of the subdivision referred to, and that it was intended and did preserve the right to disbursements given by the former Code upon the reference of a claim against decedent. Nov. 23, 1886. Larkins v. Maxon. Opinion per Curiam.

CIFIC-CODE CIV. PROC. N. Y., § 2545.-An exception "to a surrogate's decree, and each and every part thereof," is a nullity, since it indicates no specific error; the purpose of section 2545, Code Civ. Proc. N. Y., being to assimilate the practice on appeals from surrogates to that regulating appeals from courts or referees. A judgment of the General Term of the New York Supreme Court, reversing a decree of a surrogate on an insufficient bill of expenses, will be reversed. Nov. 23, 1886. Angevine v. Jackson. Opinion by Finch, J.

CRIMINAL LAW HOMICIDE MANSLAUGHTER FUROR BREVIS-ACCEPTED JUROR - REQUEST TO DISCHARGE. (1) Where the prisoner's evidence shows, that after a conflict with the deceased, which left him paralyzed and unresisting, the prisoner "let go" of him, and went after and obtained his axe, neglecting to use a knife which lay at hand on the ground, and ended his helpless opponent's life therewith, such action cannot be held to be unpremeditated, and prompted by the frenzy engendered in the struggle, to reduce the crime to mauslaughter, but shows such premeditation and design to kill as will amount to murder. (2) A request to discharge a juror, made after he has been accepted and sworn, but before evidence has been given, in a criminal case, is within the discretion of the trial judge, and the appellate court will not interfere in the absence of evidence of abuse of such discretion. Oct. 26, 1886. People v. Beckwith. Opinion by Finch, J.

TIONS

44

-MOTION IN ARREST IMMATERIAL DEFECTS IN INDICTMENT - JURY — OPINIONS FORMED FROM READING NEWSPAPERS EVIDENCE EXPERTS-DEFECTIVE BUILDINGS - MORTAR AND BRICK IN ILLUSTRATION-COMPETENT BY EVIDENCE OF ADVERSE PARTY-PHOTOGRAPH OF PREMISES-APPEAL-EXCEP- REQUISITES STIPULATION BY COUNSEL66 GENERAL" FOR PARTICULAR."-(1) Imperfections in an indictment which in no way tend to prejudice the accused as to his substantial rights, cannot affect either the indictment or the judgment to the extent of supporting a motion in arrest. (2) Where a juror, on being challenged, testifies that he had read the newspaper reports about the occurrence on which the indictment is brought, but has formed no opinion as to the guilt or innocence of the prisoner; that his mind is free from any impression in regard thereto, or the charge contained in the indictment, but he is of the opinion, from what he has read, that such occurrence is the result of culpable negligence on the part of some one, and that it will require evidence to re

move the impression; or where a juror testifies, that from reading the papers he has formed an opinion as to the guilt or innocence of the defendant which it will require evidence to remove; but in both cases the juror swears that he can nevertheless go into the jury box and render an impartial decision upon the evidence, without being influenced by the opinion or impression derived from what he has read-there is no ground for a challenge, and the court may in its discretion, allow such jurors to try the issue, as they are competent to do so within the letter of the new Code of Criminal Procedure. (3) On the trial of an indictment for manslaughter, resulting from the culpable negligence, acts and omissions of defendants "in the selection and use of materials for and in the construction of a certain building," a piece of brick and mortar from the defective building, produced by an expert in support and illustration of his testimony as to the defective quality of the materials used, is properly admissible in evidence. (4) In the above case, on cross-examination of the inspector of buildings, defendant's counsel procured, to be read in evidence, certain reports made by his office as to the unsafe character of the buildings, and on redirect examination the district attorney offered in evidence certain other reports made subsequently by the same office. Before their admission, defendant's counsel insisted upon his right to examine the witness upon them, and did so. Held, that a new trial ought not to be granted on the ground of the improper admission of such reports, as that could in no respect tend to the defendant's prejudice, and defendant had, by his own course of examination, destroyed the force of his objection. (5) In the above case, a photograph, taken during the trial, exhibiting the surface condition and state of the wall of the building, which it appeared was in the same condition as when last seen by the witness at the time of its fall, was rightly admitted in evidence as an aid to the jury in applying the evidence. (6) Where defendant, on appeal in a criminal case, alleges several instances of error in the instructions under which the evidence was given to the jury, but the record fails to show that any exception was in fact taken to the charge, au alleged stipulation by counsel "that a general exception should give the defendant the benefit of a particular exception to any part of the charge" will not avail. Nov. 23, 1886. People v. Buddensieck. Opinion by Danforth, J.

EXECUTORS AND ADMINISTRATORS-PRESENTATION OF CLAIMS-COSTS-EXTRA ALLOWANCE - APPEALCONCLUSIONS OF TRIAL COURT.-(1) Where in an action against an executrix, an order granting costs and additional allowance is resisted on the ground that the claim was not presented to the executrix for payment, the fact that the claim, duly verified, was exhibited to the executrix's authorized agent, in the manner required by law (3 Rev. St. N. Y. [5th ed.], p. 175, §§ 39, 40), justifies a finding that plaintiff's claim was properly presented. (2) Though the New York Court of Appeals follows the conclusions of the court below, unless for some obvions and sufficient reason, it appearing in this case that payment was not unreasonably resisted or refused, the order granting costs and an additional allowance will be refused. Nov. 23, 1886. Johnson v. Myers. Opinion by Finch, J.

INSURANCE-ISSUING NEW POLICY-TERMS OF-PROVISION FOR FORFEITURE.—Where the policy of following breaches of conditions by forfeiture is indicated in an original life insurance policy, the fair construction of the agreement contained therein to give a new policy on the surrender of the original, subject to the annual payment of interest on outstanding notes, authorizes the insertion in the new policy of the usual

provision of forfeiture on non-payment. It is claimed that the insertion in the new policy of the clause of forfeiture for non-payment of interest annually on the outstanding premium notes given for premiums on the old policy was unauthorized by the terms of the original policy. We think this claim is not well founded. The company did not undertake to give a new policy free from all conditions. It was expressly provided that the new policy should be "subject to any notes that may have been received on account of premiums." The intention to impose upon the assured, in case a new policy should be issued, an obligation to pay the interest annually on premium notes outstanding, is clearly shown by the further provision in the original policy that the assured to whom a new policy should be issued was not to be subjected" to any subsequent charge, except the interest annually on all premium notes remaining unpaid on this policy." If the premiums had been paid in cash, no further payment would have been necessary. If paid in part in notes, only the annual interest thereon would be required to be paid, and the principal would remain a charge on the policy, to be settled on the final liquidation. It is true that the originai policy did not provide for the insertion in the new policy of a clause of forfeiture for non-payment of the interest. But it was made forfeitable on the non-payment of the premiums at the day, with a provision for a substituted contract, and it was also subject to forfeiture for breaches of other conditions. Causes of forfeiture were contemplated. The new contract was to be subject to the payment by the assured of annual interest on the outstanding notes, and the right of the company to insert a clause of forfeiture as a means of enforcing this obligation, and of protecting the company against the accumulation of unpaid interest, was, we think, implied. The successful prosecution of the business of life insurance requires prompt payment by policy-holders of their obligations. "It is on this basis that they are enabled to offer assurance at the favorable rates they do. Forfeiture for non-payment is a necessary means of protecting companies from embarrassment.' Bradley, J., New York Life Ins. Co. v. Statham, 93 U. S. 30. The policy of following breaches of conditions by forfeiture was indicated in the original policy, and the fair construction of the agreement to give a new policy, subject to the annual payment of interest on outstanding notes, authorized the insertion in the new policy of the usual provision of forfeiture on non-payment. Cowles v. Continental Life Ins. Co. (N. H. Sup. Ct.), 2 East. Rep. 741; and Bruce v. Same (Vt. Sup. Ct.), 2 Atl. Rep. 710, distinguished. Nov. 23, 1886. People v. Knickerbocker Life Insurance Co. Opinion by Andrews, J.

MUNICIPAL CORPORATIONS-CITY OF NEW YORKILLEGAL STREET ASSESSMENT--RECOVERY BACK.—(1) It is a condition precedent to the right of the common council of the city of New York to make an assessment for the repaving of Broadway, that it should be petitioned for by the requisite number of property owners. In re Emigrants' Saving Bank, 75 N. Y. 389; In re Weil, 83 id. 543; In re Manhattan Ry. Co., 102 id. 302; S. C., 6 N. E. Rep. 590. (2) The assessment having been imposed without jurisdiction, it was not essential that it should be first vacated in order to enable the plaintiff to recover back the money paid thereon. A void assessment, like a void judgment, is a nullity, and when its collection has been enforced, the money may be recovered back, although the assessment has not been formally vacated. Bruecher v. Village of Port Chester, 101 N. Y. 240; S. C., 4 N. E. Rep. 272. If however the vacation of the assessment was necessary, that relief may be had in this action, in connection with relief for the recovery of the money

which the plaintiff's testator was illegally compelled to pay. Nov. 23, 1886. Jex v. Mayor, etc., of New York. Opinion by Andrews, J.

OFFICE AND OFFICER-SALARIES-POLICE JUSTICES OF NEW YORK CITY-LAWS N. Y. 1860, CH. 508, § 26— 1870, CH. 383-ILLEGAL SALALY PAID VOLUNTARILYGOOD FAITH.-(1) Section 16, chapter 508, Laws N. Y. 1860, providing that "for the additional duties imposed in this act the common council or board of supervisors in said city and county [of New York] may increase the compensation of any officer mentioned herein," gives authority to make but one increase of such compensation, and the salaries of police justices therein mentioned having been once increased, a resolution of the common council for a second increase is unauthorized. (2) Chapter 383, Laws N. Y. 1870, p. 888, authorizing the mayor and comptroller of the city of New York to increase the salaries of civil justices of that city to a sum not exceeding the salaries paid police justices of that city, does not ratify the resolution of the common council of the city of December 31, 1869, increasing the salaries of police justices to $10,000 per annum. (3) Chapter 383, Laws N. Y. 1870, p. 881, appropriating a gross sum for salaries of the city courts of the city of New York, based upon estimates stating the salaries of the police justices to be $10,000 per aunum, does not ratify the resolution of the common council increasing such salaries to that sum. (4) The salaries of police justices of the city of New York were increased contrary to law, and a justice who entered upon the duties of his office after such increase had been made, received payment at the increased rate, in good faith, without any mistake of fact, and believing that the increase had been lawfully made. Held, that the payments having been made to him voluntarily, they could not be recovered on the ground that the increase was illegal. Nov. 23, 1886. Cox v. Mayor, etc., of New York. Opinion by Earl, J.

PARTNERSHIP-CLAIM FOR SERVICES RENDERED A PARTNER-WEIGHT AND SUFFICIENCY OF EVIDENCECOMPETENCY-OPINION-DECLARATIONS OF DECEDENT -CHARACTER AND ABILITY.—(1) In two separate actions by a widow, as administratrix of the estate of her deceased husband, for services rendered to the defendant's testator during his life, and to her after his death, when it appears that as to some matters plaintiff's intestate was a partner of defendant's testator, and that the plaintiff, more than any other person, knew of her husband's business relations with the defendant's testator, held, that the plaintiff's testimony as to the extent and value of the services rendered, corroborated by letters that passed between her husband and the defendant's testator, and by other letters and other evidence of the value of the services, and by the defendant's admission by a requesto find that the plaintiff's intestate had rent dered some services, was sufficient to warrant the judgment in plaintiff's favor. (2) A question as to what proportion of an employee's time was devoted to his employer's business, asked a witness conversant with the facts, does not call for an opinion, but for a fact within his knowledge, and is admissible. (3) In an action by an administratrix for services rendered by her intestate, when both the fact of the services having been rendered, and their value, are in issue, a question asked a witness as to whether he had ever been with the intestate when professedly engaged in the alleged employer's business, is not objectionable as calling for intestate's declarations in his own favor; the question being asked with a view to showing his acquaintance with the intestate's occupation, and then to prove, by his further testimony, the value of the services rendered. (4) In an action for services rendered in conducting varied business affairs, requiring

the best business ability, it is proper to show the character and ability of the person rendering the services, as evidence of their value. Nov. 23, 1886. Johnson v. Myers. Opinion by Finch, J. Ruger, C. J., Rapallo aud Andrews, JJ., dissenting.

PLEDGE -COLLATERAL SECURITY - CORPORATION STOCK-COLLECTING DIVIDENDS-TRANSFER - NOTICE -PRESUMPTIONS.- A testator was the owner in his life-time of six shares of stock in the Utica cotton mills, and on the 15th of May, 1861, he transferred them to B. as collateral security for a loan of $500 theretofore made to him, and which at that time, with the interest, was due and unpaid. For a time testator collected the dividends and applied them to his own use. Afterward B. assigned the stock to A.'s executor, and on the 3d of February, 1864, it was transferred to the executor on the books of the cotton mills company, and a new certificate issued to him as assignee. The executor collected the dividends until February 1, 1865, and after that, until August, 1866, they were collected by G., a trustee under the testator's will, and paid over by B.'s direction to the widow and daughter of the testator. On the 7th of July, 1866, the executor, for value received, transferred the stock to B., who thereafter, until his death in March, 1882, held, claimed, and treated the stock as his own, and received the dividends thereon. The fact of this transfer and claim of ownership were known to all the parties interested, and especially to the executor and trustee, who were actors in the transaction. In a suit brought by the widow and some of the children of testator, after the death of B., against his administrator, to compel the transfer of the stock to them, or to the executor or trustee, held, (1) that upon the facts, there is no equity in the claim of the plaintiffs; (2) that there is a presumption in favor of B.'s title arising from lapse of time. Nov. 23, 1886. Lockwood v. Brantly. Opinion by Danforth, J.

SPECIFIC PERFORMANCE-EXECUTOR'S CONTRACT FOR SALE-POWERS-TENDER-MESNE PROFITS-INTEREST -DOWER-MORTGAGE.-(1) Where executors, empowered by the will to sell real estate, execute a valid executory contract for a sale, such contract is an execution of the power, and confers upon the purchaser an equitable title to the land sold, and the court will compel the executors to perfect the title by a conveyance when the contract is fair, and no laches is shown by the purchaser. (2) Where a purchaser has entered into a valid contract for the purchase of land, with executors empowered to sell by the will, and on the date named for completing, has tendered the balance of the purchase price, and a proper executor's deed for execution, and on execution being refused, has deposited the money and deed in a bank, with notice to the executors, payable to their order on their executing the deed, he is entitled to specific performance of the contract, and is not liable for interest on the purchase money. (3) Under a will directing the executors to make an early sale of the testator's real estate, consisting of a farm, but providing that until sale the widow should retain possession of the house, together with a portion of the farm, the widow, who was an executrix, and her co-executors, in 1881.executed a valid contract for sale of the land to plaintiff. At the time the land was subject to a mortgage and the widow's right of dower. No mention of these incumbrances was made in the contract, but the consideration was for full value. The widow refused to complete, and remained in substantial occupancy of the farm till this action was brought by the purchaser for specific performance, the estate receiving nothing therefrom. In such action, held, that the purchaser was entitled to specific performance, and to judgment against the

executors for the rental value of the land since the date named in the contract for completion, less the rental value, to which the widow was entitled by virtue of her dower right; that the widow should release her dower in the land, and receive therefor, out of the purchase-money, the value of her dower right, to be ascertained as of the date for completion named in the contract, and should pay the reout to the purchaser the rental value to which she had been entitled by virtue of her dower right since the last date, and the mortgage should be paid off out of the purchasemoney. Nov. 23, 1886. Bostwick v. Beach. Opinion by Rapallo, J.

UNITED STATES SUPREME COURT ABSTRACT.

BANKRUPTCY-DISCHARGE-FIDUCIARY CHARACTER -REV. STAT. U. S., § 5117-EFFECT OF DISCHARGEREGULARITY OF-APPLICATION FOR-PRESUMPTIONS -REV. STAT. U. S., $$ 5108, 5119-JURISDICTION IN BANKRUPTCY.-(1) A judgment against a broker for failure to return certain bonds according to contract, under which they were deposited with him for his use, he to collect the coupons for the owner free of charge, and to pay him two per cent on their par value, is not, where the broker was responsible at the time of the deposit, a debt created by fraud, embezzlement, or while the broker was acting in a fiduciary capacity, 80 as to exempt it, under Rev. Stat. U. S., § 5117, from the operation of the broker's subsequent discharge in bankruptcy. (2) Under Rev. Stat U. S., § 5119, the certificate of discharge in bankruptcy is conclusive evidence in favor of the bankrupt, "of the fact and regularity of such discharge," and it will be presumed that the application therefor was made within the time required by section 5108, or if not, that any delay there may have been wae satisfactorily explained before the discharge was granted. (3) An appeal to the United States Supreme Court from an order of the Court of Appeals of New York, on motion and affidavits, perpetually enjoining the collection of a judgment on the ground that the debtor had been discharged in bankruptcy, raises a Federal question, when the counter-affidavits set up the fact that the debt evidenced by the judgment was exempt from the operation of the discharge, under Rev. Stat. U. S., § 5117, because of its fraudulent and fiduciary character. Nov. 15, 1886. Palmer v. Hussey. Opinion by Waite, C. J.

TRESPASS-TO TRY TITLE INTERVENORS -JOINT JUDGMENT-WHO SHALL JOIN IN-ALIENS-INHERITING LANDS-DEFEASIBLE AND INDEFEASIBLE TITLESFOREIGN LAW-TEXAS ACTS OF MARCH 18, 1848, AND FEBRUARY 13, 1854-DEED-SUBSCRIBING WITNESSESERASURE IN NAME-MARRIAGE-COMMUNITY PROPERTY-PRESUMPTION-AGENCY-POWER OF ATTORNEY -REVOCATION BY DEATH-CONSTRUCTION-TO RECOVER INTEREST OF HEIRS-ESTOPPEL-DEED-WAR

RANTY-AFTER-ACQUIRED TITLE.—(1) If in trespass to try title to real estate, third persons intervene, setting up a claim of title derived through the plaintiffs, a judgment in favor of plaintiffs, and against intervenors and defendants, although joint in form, is not so in substance, and the intervenors and defendants therefore need not join in a writ of error. (2) Section 9 of Texas act of March 18, 1848 (Paschal Dig., art. 4), allowing alien heirs nine years in which to naturalize, or to sell land inherited by them, before they shall forfeit it, is not repealed by the act of February 13, 1854, providing that aliens shall enjoy in Texas the same rights as are accorded to Americans in their country under the laws and treaties thereof, the latter ex