The amended New York law on the subject under consideration (Sess. Laws N. Y. 1885, ch. 458, § 2) prohibits, among other things, the manufacture, except from unadulterated milk and cream, of any product "in imitation or semblance of natural butter made from cream, and also prohibits the sale of any article produced in violation of such act.

In People v. Arensburg, 40 Hun, 359, a conviction for the violation of that act was sustained, on the ground that the Legislature might not only interpose to protect the pubiic health, but to prevent fraud and imposition in the simulation of a healthy article of food universally consumed by the people; and upon this proposition we are disposed to rest our decision in this case.

The case just cited arose subsequent to that of People v. Marx, 99 N. Y. 377; S. C., 52 Am. Rep. 34, but was distinguished from it on the ground of the difference in the wording of the statutes under which the convictions were had. In the latter case the prosecution was under a section like that of our own statute now under consideration, and the statute was held void chiefly because it was construed to be an attempt on the part of the Legislature to drive the manufactuted article from the market for the benefit of another industry, and to protect those engaged in the manufacture of dairy products against the competition of cheaper substances, capable of being applied to the same uses; in other words, that the object of the statute was to prohibit one industry in order to foster another. This assumes that the object of the legislation was for the benefit of a class, and that there were no reasonable grounds for the exercise of the police power; because if there were such grounds, it is no objection that a legitimate industry is incidentally benefited, as the practical result of the operation of the statute. We do not think the court would be warranted in setting aside this legislation on such grounds.

As said by the court in People v. Albertson, 55 N. Y. 59: "Courts do not sit in review of the discretion of the Legislature, or determine upon the expediency, wisdom or propriety of legislative action, in matters within the power of the Legislature. Every intendment is in favor of the validity of statutes, and no motive, purpose or intent can be imputed to the Legis

lature in the enactment of a law other than such as is apparent upon the face, and to be gathered from the terms of the law itself."

Oleomargarine and kindred products have been manufactured and disposed of to a greater or less extent for years, and there has been sufficient opportunity to test, by observation and experience, their general character, and the methods adopted in conducting the business of the manufacture and sale of such substitutes for butter, so as to enable the Legislature to determine as to the necessity or propriety of police regulation or restriction. It is doubtless easy to introduce cheap and unwholesome ingredients into their manufacture, and the product is easily passed off upon the consumer under the semblance of butter, without detection of the fraud.

As respects similar legislation restricting the sale of milk mixed with water, the court in Com. v. Waite, 11 Allen, 264, used this language: "It is notorious that the sale of milk adulterated or mixed with water is extensively practiced with a fraudulent intent. It is for the Legislature to judge what reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to the nature of

the case."

Similar statutes prohibiting the sale of milk reduced below a certain standard on account of the presence of [* Reversed, 34 Alb. Law Jour. 476.-ED.]

water, were held constitutional in Com. v. Evans, 132 Mass. 11, and in State v. Smyth, 14 R. I. 100. We know of no good reason therefore why laws for the suppression as well as regulation of the manufacture and sale of the compounds against which the statute in question appears to be-levelled, may not be sustained.

The language of the section in controversy is the same as that in similar statutes of several of the States. In some instances the objection has been raised that its terms are too broad, and may be intended to include not merely the compounds referred to, but other harmless preparations which consumers might choose to use in the place of butter. This point is not however raised by counsel in this case. It was assumed upon the argument that the statute in question was intended to restrain or suppress the manufacture and sale of oleomargarine and like compounds resembling and intended as a substitute for butter.

From the title of the act and the general tenor and manifest object of its provisions, it may be fairly construed, we think, to have been directed against the manufactured substitutes for butter above designated; and the statute will hardly be construed to apply to articles bearing so little resemblance to butter that they could not be substituted for it as an article of commerce. For example, olive oil is sold for table use, yet we think it could not reasonably be held to be a substitute for butter within the meaning of the section in question; and that a prosecution for the sale of such articles under this act could not be sustained under the strict rule of construction applicable to criminal prosecutions.

It is claimed that the act is repugnant to article 4, section 27, of the Constitution, on the ground that the subject-matter of section 4 is not embraced in the title. But the provisions of that section are, we think, legitimately connected with the subject of the act and included therein. An article manufactured and sold as butter, which is not a genuine dairy product, would fairly come within the spirit and object of the act, as entitled, without reference to the extent of adulteration, or the peculiar process of manufacture, and though the product be wholly simulated.

This legislation sufficiently conforms to the title, and as before observed, is justified upon the ground that the use of the inhibited compounds, in its teudency and results, is injurious to the public health; and especially because the adulterated article is not readily distinguished from the genuine, and is easily substituted for it, so as to work a fraud upon those who actually use and consume it, as well as upon purchasers; and for these reasons it was considered by the Legislature that the mischief could only be effectually suppressed or remedied by the imposition of severe penalties.

What the nature of the remedy should be, within the proper limits of the police power, was for the Legislature to determine, and with the wisdom or policy of such legislation the courts have nothing to do.

Order reversed.

NEW YORK COURT OF APPEALS ABSTRACT.

FOR

ASSIGNMENT-EQUITABLE LIEN-PURCHASER VALUE.-A. had a disputed claim for a large amount against one Z., and he entered into a written agreement with the plaintiff, an attorney at law, whereby in consideration of his prosecuting the claim, he was to have one-third of the amount of money, securities or property obtained from Z., whether with or without settlement. The agreement also provided that A. was to retain the right to decide upon the terms and mode of settlement, whether before or after suit. Thereafter

the plaintiff commenced an action, through other attorneys, against Z., and while the action was pending, A. assigned the claim to one S., whom he was owing. Shortly thereafter, without the knowledge or consent of plaintiff, A., Z. and S. made a settlement, in which Z. delivered to S. certain bonds, and received from A. a release of the claim involved in the action, and S. released A. from the claim which he had against him, and also returned to him certain collaterals which he held to the debt, but which, as it appeared, were of little or no value. At the time of the settlement S. had no knowledge that the plaintiff had any claim upon the debt due A. from Z. Thereafter plaintiff commenced this action against S. to recover one-third of the bonds, or their value, received by him from Z. Held, (1) that the agreement between A. and the plaintiff constituted an equitable assignment to the plaintiff of one-third of the amount received on the Z. claim; (2) that S. was not a purchaser for value of the securities in a sense which entitled him to hold them freed from the plaintiff's lien, and that the plaintiff could recover. Jan. 18, 1887. Fairbanks v. Sargent. Opinion by Ruger, C. J.

EXECUTOR AND ADMINISTRATOR-REMOVAL-COMPELLING ACCOUNT-Code CIVIL PROCEDURE, §§ 2605, 2724-PRACTICE-APPEAL-EXCEPTIONS.-The petition presented to the surrogate asserted as a ground of the relief sought that Frederic Hood and the petitioner had been originally appointed executor and executrix of the last will of Andrew Hood; that the letters testamentary issued to Frederic Hood had been revoked for his misconduct, leaving the petitioner sole remaining representative of the estate; that previous to such revocation, and about January, 1869, the said executor had collected bonds and mortgages, which were assets in his hands, amounting to between $40,000 and $50,000; and upon these facts the petitioner asked for an order that the removed executor account for and deliver over to the executrix the assets remaining in his hands. The Code authorizes a surrogate to call an executor or administrator to account where the letters have been revoked (§ 2724), and more specifically provides that "the Surrogate's Court has the same jurisdiction upon the petition of the successor or of a remaining executor, administrator, guardian or trustee, to compel the person whose letters have been revoked to account for or deliver over money or other property, and to settle his account which it would have, upon petition of a creditor or person interested in the estate, if the term of office conferred by the letters had expired by its own limitation." § 2605. Upon the petition filed the surrogate had jurisdiction to grant the relief sought. The executor's answer alleged that he had accounted before the surrogate in 1869 for all assets held by him in that character, and that thenceforward he held the balance in his hands as testamentary trustee. Other defenses were pleaded, but need not be here stated, for reasons which will appear. On the hearing the surrogate made an order requiring the appellant to account as executor, and the latter having filed an account, the surrogate made a final order adjudging that the appellant held nearly $30,000, received as executor, which he should pay over to the petitioner. From each of these orders which have been affirmed by the General Term, the removed executor appeals. Whether the order to account was merely preliminary or final, in so far as it adjudged the character in which the assets were heid (In re Halsey, 93 N. Y. 48), is of no consequence in view of the fact that the appeal from the order finally rendered by its terms, brings up for review the order to account. The return shows that the surrogate made no findings of fact or law as is now required (Code, § 2545; Angevine v. Jackson, 103 N. Y.), and that no ex

ceptions were taken to his decision or decree in any form. But on the hearing and during its progress exceptions were taken, aud only three. These were (1) to the admission of the order revoking the executor's letters testamentary; (2) to a ruling which sustained an objection to an inquiry whether he had acted as executor since the decree of 1869; and (3) to the question what he had done with the bonds and mortgages left in his hands after that decree. The first two exceptions are without merit, and indeed are not relied upon or argued in the appellant's brief. The third exception raises the only question open for consideration. The ground of objection stated was, that after the defendant's final accounting in 1869 his responsibility as executor ceased, and the funds in his hands were held by him as trustee, and what became of them was totally immaterial on a proceeding against him as executor. But this defense we have already held to be untenable. When the case was first before use (85 N. Y. 561) we decided that by the will of Andrew Hood there was an equitable conversion of the real estate into personalty, and that for the proceeds of its sales the executor was accountable in that capacity. At a later period the order revoking his letters testamentary came up for review (98 N. Y. 363), and we then held, passing by the inquiry whether under the will it was possible for him to exchange the character of executor for that of trustee, that he had not effected such exchange and remained executor only and removable as such for his misconduct in that capacity. We pointed out that on the accounting in 1869 he was not discharged, was not directed to hold the remaining assets as trustee, was not credited with such transfer, and his account thereby balanced, but the decree entered directed as to the assets remaining, that "the said executor shall hold and invest pursuant to the powers and directions contained in said last will and testament." There had been no payment of the defendant as trustee, no new account opened and kept in the new capacity, and no separation or division of the fund allotting to the beneficiaries their exact and specific proportions. If the question had respected commissions, it was shown that our own decisions would have compelled us to hold that the defendant could not be entitled to them in the character of trustee. Our decision intermediate the two referred to does not affect the present appeal, since the removal of the executor is a new fact which has occurred since the decree of 1869, and brings with it new rights and responsibilities. Jan. 18, 1887. Matter of Hood. Opinion by Finch, J.

NAVIGATION-COLLISION-UNITED STATES REVISED STATUTES, § 4.33-PROPER LIGHTS.-The Yosemite, a vessel belonging to defendants, was coming up the Hudson river at the rate of about sixteen miles an hour, when, between nine and ten o'clock at night, she collided with and sank a vessel belonging to the piaintiff's testator. She carried lights corresponding in character and position with the lights prescribed by section 4233, rule 3, of the United States Revised Statutes. In an action to recover damages, plaintiffs were nonsuited on the ground that the Yosemite at the time of the collision had the proper lights, and that no negligence was imputable to her on any other ground. The General Term affirmed the ruling. Held, that as the Yosemite was at the time navigating inland waters, under a coasting license, and was bound to carry the light prescribed by rule 7, the ruling was error. Jan. 18, 1887. Chase v. Belden. Opinion by Andrews, J.

RAILROAD-MANDAMUS STATION-HOUSES-RAILROAD COMMISSIONERS.-There is nothing in the provisions of the general railroad act (Laws of 1850), by which a company organized thereunder can be com

pelled to provide suitable freight and passenger houses at a village located upon the line of the road. The law leaves the matter entirely to the discretion of the company. Neither have the railroad commissioners any authority which can be enforced in the courts to require the company to provide such accommodations. The statute is peremptory as to many matters, but it nowhere says that for its intending passengers or weighing freights cover by building of any kind shall be provided. As to that the statute imports an authority only, not a command, to be availed of at the option of the company in the discretion of its directors, who are empowered by statute to manage its affairs, among which must be classed the expenditure of money for station buildings or other structures for the promotion of the convenience of the public, having regard also to their own interest. With the exercise of that discretion the Legislature only can interfere. No doubt, as the respondent argues, the court may, by mandamus, also act in certain cases affecting corporate matters, but only where the duty concerned is specific and plainly imposed upon the corporation. It was so in People v. D. & C. R. Co., 58 N. Y. 152, where the defendant was compelled to restore an invaded highway to its former usefulness - a statutory duty. Laws of 1850, ib., § 28, subd. 5. So in People v. B. & A. R. Co., 70 N. Y. 569, to build a bridge as directed to by statutes. Laws 1874, ch. 648. In People v. R. & S. L. R. Co., 76 N. Y. 294, to erect fences as directed by statute of 1850, supra. All these cases cited by the attorney-general, and there are many others, go upon the ground above stated. Such is not the case before us. The grievance complained of is an obvious one, but the burden of removing it can be imposed on the defendant only by legislation. The Legislature created it upon the theory that its functions should be exercised for the public benefit. It may add other regulations to those now binding it, but the court can interfere only to enforce a duty declared by law. The one presented in this case is not of that character, nor can it by any fair or reasonable construction be implied. The whole subject of the relation between the company and its passenger and freight appears to have been in contemplation of the Legislature. Certain acts toward them, as we have seen, are made imperative as duties (§ 36); others, and among them the erection of stations and buildings, are made possible by permission. § 28, subd. 8. We cannot disregard this difference in language, and give by implication to one phrase the same force and meaning the Legislature has by express terms conveyed in the other. Jan. 18, 1887. People v. New York & L. E. R. Co. Opinion by Danforth, J.

TRUST-CONTAINED IN SEVERAL PAPERS-DELIVERY -PERPETUITIES PLEADING AMENDMENT NEW CAUSE OF ACTION.—(1) Defendant's testator executed a trust deed conveying certain securities to the plaintiff, in trust, to invest the principal and pay over the income in accordance with the directions contained in a sealed confidential paper delivered with the deed, and to be opened at the testator's death. During the life-time of the testator the principal was to be subject to the settlor's direction. Shortly after receiving the securities the plaintiff returned them to the testator, who invested the same and collected the income thereof during his life, under a power of attorney from the plaintiff, to whom he paid it over. At the testator's death the sealed instructions disclosed directions for the payment of the income of one K. to be distributed by him in a certain way. At the time of the delivery of the papers mentioned the testator also delivered to K. a paper containing instructions to him for the distribution of the income. The testator died without having altered or revoked the instruc

tions. In an action by the plaintiff against the executors to recover the securities, held, that the three papers should be taken and construed together, and as so construed they constituted a valid trust. The trust deed gave the income "to the use of Mrs. Howland and her three children; one-third to her, and the residue equally to the said children, or the survivors or survivor of them," and the principal to be "delivered to the said persons or survivors or survivor in the same proportions when the youngest of said surviving children shall come of legal age, unless in the exercise of his discretion he, the trustee, shall sooner make such distribution of said principal." Held, that the survivorship referred to was that existing at the date of the death of the settlor, and that the consequent duration of the trust was during the life of the settlor and the minority of the youngest of the three children living at his death, and the absolute ownership being suspended only during the continuance of those two lives, both of which were in being when the trust was created, the statute against perpetuities was not violated. (2) The action was against the defendants as executors in their representative capacity. After the trial the court granted a motion amending the summons and complaint, and ordered the judgment awarded to be entered against the defendants individually and de bonis propriis. Held, error; that the amendment substituted a new and different cause of action, which the defendants had not had opportunity to defend. Jan. 18, 1887. Van Cott v. Prentice. Opinion by Finch, J.

WILL-ADVANCEMENT-WHEN GIFT NOT-PRACTICE -OBJECTIONS TO EVIDENCE.-(1) A gift to one entitled as a child to share in the estate of the donor will not be held to be an advancement when it expressly appears to have been the intention of the father that the gift should not be considered as such. (2) A party who has sat by during the reception of incompetent evidence without property objecting thereto, and thus taken his chance of advantage to be derived by him therefrom, has not, when he finds such evidence prejudicial, a legal right to require the same to be stricken out. But even if the referee or surrogate could in their discretion strike out any of the testimony, no request was made that either should do so. If the objection related to evidence which might follow, it was too general. There was no new question to the witness, nor any offer of evidence. As to what followed therefore the objection was premature. It was not repeated. But assuming it to be good as to all that followed in the answer of the witness before the next question was put, it becomes unimportant. So much might be stricken out without impairing the weight of the evidence, or in any way affecting the conclusion reached upon the merits by either court. In no aspect could the exception require a new trial. For the evidence admitted under it fails to create even a suspicion that the exceptant was necessarily prejudiced thereby. Code, § 2545. Jan. 18, 1886. DeCaumont v. Morgan. Opinion by Danforth, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

ADVERSE POSSESSION-TACKING.-Though there are a few cases which hold that the statutory period of adverse possession, which will bar an action for the recovery of land, may be made by tacking together the periods of the adverse possession of several successive holders between whom there is no privity (see Scales v. Cockrill, 3 Head, 433; Smith v. Chapin, 31 Conn. 530; Davis v. McArthur, 78 N. C. 357) the rule

laid down by the great majority of the courts and by the text writers, and supported by the weight of authority, and which must be regarded as the true rule, is that privity between successive adverse holders is indispensable. And this upon the principle that unless the successive adverse possessions are connected by privity the disseisin of the real owner resulting from the adverse possession is interrupted, and during the interruption, though but for a moment, the title of the real owner draws it to the seisin or possession. Melvin v. Proprietors, etc., 5 Metc. 15; Haynes v. Boardman, 119 Mass. 415; McEntire v. Brown, 28 Ind. 347; Jackson v. Leonard, 9 Cow. 653; Wood Lim., $271; San Francisco v. Fulde, 37 Cal. 349; Crispen v. Hannavan, 50 Mo. 536; Shuffleton v. Nelson, 2 Sawy. 540; Aug. Lim., §§ 413, 414; Sedg. & W. Tr. Title Land,

§8 745-474; Riggs v. Fuller, 54 Ala. 141. (2) The privity

spoken of exists between two successive holders when the later takes under the earlier, as by descent (for instance, a widow under her husband, or a child under its parent) or by will or grant, or by a voluntary transfer of possession. Leonard v. Leonard, 7 Allen, 277; Hamilton v. Wright, 30 Iowa, 480; Jackson v. Moore, 13 Johns. 513; McEntire v. Brown, supra; Weber v.

Anderson, 73 Ill. 439; Wood Lim., § 271; Sedg. & W. Tr. Title Land, $$ 747, 748. (3) While to operate as a bar adverse possession must be continuous, continuity will not be interrupted by the possession during any part of its period of one who occupies the premises as a tenant of the alleged adverse possessor. In such cases the tenant's possession is that of his landlord. San Francisco v. Fulde, supra; Raynor v. Lee, 20 Mich. 384; Sedg. & W. Tr. Title Land, § 747. (4) Possession, to be adverse, so as to bar an owner's right of

action, must be actual, open, continuous, hostile, exclusive, and accompanied by an intention to claim adversely. Sedg. & W. Tr. Title Laud, $731 et seq. Minn. Sup. Ct., Dec. 8, 1886. Sherin v. Brackett. Opinion by Berry, J. [See Hanson v. Johnson, 62 Md. 25; S. C., 50 Am. Rep. 199.-ED.]

CARRIERS-NEGLIGENCE-RAILROAD COMPANIESPERSONAL INJURY-CONTRIBUTORY NEGLIGENCE.-In

an action against a railway company for damages for personal injuries caused by defendant in not providing a proper place for passengers to alight from its trains, and not drawing the car in which plaintiff was riding up to the station platform, so that in stepping from the car to the ground, she fell and hurt herselfthe jury being instructed that "if in the exercise of ordinary care, the plaintiff might have safely gained the platform, as by passing through the car forward, and she elected to take the risk of alighting where she did, instead of taking the safe course, she was guilty of negligence, and could not recover," and the evidence showing that she could have stepped from the train to the platform by passing through the car in front of that in which she was riding, held, that the jury was bound to give a verdict for defendant. She had to make her election to alight as she did, or pass forward, as passengers upon long trains are constantly called upon to elect under similar circumstances. There was nothing to hinder her from passing forward. The instruction appears to us to express the law. But in any event the jury was bound to obey it. Iowa Sup. Ct., Dec. 15, 1886. Eckerd v. Chicago & N. W. Ry. Co. Opinion by Adams, C. J.

CONSTITUTIONAL LAW-KEEPING AND LICENSING OF DOGS STATUTE AND ORDINANCE-INVOLUNTARY SERVITUDE-ROAD WORK-TRIAL BY JURY-CITY ORDI

forty-five years of age, or $3 in lieu thereof, are not unconstitutional or void. (3) The right to jury trial applies only to criminal prosecutions for violations of the laws of the State, and does not apply to prosecutions for violations of ordinances relating only to local affairs of cities. Kans. Sup. Ct., Nov. 15, 1886. State v. City of Topeka. Opinion by Valentine, J.

TION.

TAX ON FOREIGN MERCHANTS-DISCRIMINA

-An ordinance of the city of Louisville imposing a higher tax or license on the business of a merchant of another State than on that of a resident of the city, held to be in violation of the Constitution of the United States, and void. Section 2 of article 4 of the Federal Constitution provides that "the citizens of each State shall be entitled to all privileges and if, as contended by appellants, the ordinance in quesimmunities of citizens in the several States;" and

tion is in violation of the provisions of the Constitution, it results that the city has obtained from the appellants a sum of money to which it was not entitled under a mistaken view as to the validity of the ordinance, and they are entitled to recover. While the doctrine laid down by Mr. Cooley, that "the methods in which business shall be

taxed are within legislative discretion," it must also be understood that when such legislation is forbidden. by the State or Federal Constitution, it is invalid, and. will not be enforced. The ordinance under which this payment was exacted applies to the resident of the State as well as the non-resident, and no one having his place of business outside of the city limits is allowed to sell by sample unless he pays the license imposed; and the fact that its provisions apply to the resident of the State as well as the non-resident does not add to the validity of the act, or give strength to the argument in support of it. The statute of Mary

land, the validity of which was determined by the Supreme Court in the case of Ward v. Maryland, 12 Wall. 418, determines the question raised here. There the facts were almost identical to those found in this case. The license there imposed on the merchants was regulated by the amount of business done, the highest tax being $150. The non-resident merchant, or the merchant from another State (New Jersey) was required to pay $300. The statute was held void, as it must necessarily be in this case. In State v. Furbush, 72 Me. 493, decided by the Supreme Court of Maine, where an act was passed allowing goods manufactured in that State to be peddled without a license, and at the same time imposed a license for peddling similar goods manufactured out of the State, it was held that the act was in violation of the Federal Constitution. The same principle was announced in the case of State v. North, 27 Mo. 464, and in the cases of Daniel v. Richmond, 78 Ky. 542. If the city of Louisville, through its council, can impose taxes or exact a license, so as to discriminate against all those who live out of the city, and are engaged in like business, and all other cities and towns within the State, by way of retaliation, or for their own protection, should impose like restrictions, it would be a practical destruction of all trade and commerce between this and any other State, and in fact between towns and cities in our own State. The merchant in Louisville can sell anywhere within the State, while the merchant outside of that city is not allowed to sell within the city limits. That the resident merchant pays taxes for the improvement of the streets, the support of the public schools, and for the maintenance of the poor in the city, is no reason why this discrimination should be made. He is supposed to, and in fact does, receive benefits from the duties thus imposed that do not pertain to the nou

fore the ordinance is in violation of the Federal Constitution. Whether the amount of money paid in this case is called a tax or license is immaterial. If either, it is invalid. One of the objects of this provision of. the Constitution was to prevent such discrimination by State legislation, and to protect and require uniform regulations with reference to trade and commerce between the several States. The property and merchandise brought into this State for sale, or for any other lawful purpose, is entitled to all the protection the property owned by the resident has, and cannot be required to assume greater burdens, whether in the way of license or taxation. The power to collect taxes on property and to require a license on business certainly belongs to the State, but this power must be so exercised as to not violate the fundamental law. The effect of this ordinance is to drive all competition in trade from the city, and at the same time permit the resident merchant to compete with all those engaged in business outside of the city limits. The doctrine announced, and now well settled, is "that goods, merchandise or other property brought into this State for sale, cannot be subjected to a higher tax or required to pay more for the privilege of selling than is imposed upon like goods or property, sold, or offered to be sold, by residents of the State; the citizens of each State being entitled to all privileges and immunities of citizens of the several States." Ky. Ct. App., Oct. 2, 1886. Fecheimer v. City of Louisville. Opinion by Pryor, C. J.

ESTOPPEL-SALE OF GRAIN STORED--APPARENT OWNERSHIP-SECRET AGREEMENT.-Where owners of wheat place it with an elevator company, and knowingly permit such company to mingle it with other wheat purchased by the company, and to sell from the common mass, they are estopped to assert title as against an innocent purchaser for value, who bought in good faith, in the usual course of business, believing such company to be the owner of the wheat; and a private understanding between the dealers and the company cannot affect the rights of such innocent purchaser. As a general proposition, it is well settled both in law and reason that no one can convey a better title to property than he has. In other words, no one without title to property can convey title thereto, and thus defeat the claims of the rightful owner. But there are many cases where the owner of property will be estopped to assert his title thereto as against an innocent purchaser for value. We think this is such a case. As we have seen, appellants knew that their wheat was to be and was commingled with wheat purchased by the elevator company, and that that company was selling and publicly shipping from the common mass. They therefore knew that others were purchasing the wheat from the elevator company in the usual course of business, and paying their money therefor. By thus putting their wheat into the possession of the elevator company, and allowing it to sell and ship from the common mass, they clothed that company with an apparent ownership of and authority to sell the wheat which estops them to assert their title thereto, as against Witherspoon, Barr & Co., who invested their money in good faith, believing that to be a fact which appellants by their conduct permitted to appear to be a fact.

Quick v. Milligan, 9 N. E. Rep. 392, and cases there cited (present term). As between appellants and the elevator company, the question is, what authority did the elevator company in fact have to sell or dispose of their wheat? As between appellants and Witherspoon, Barr & Co., the question is, with what apparent authority did appellants clothe the elevator company to sell and dispose of their wheat? In the case of Cowdrey v. Vanderburgh, 101 U. S. 572, it was said: "The principle is well settled that when the

owner of property, in any form, clothes another with the apparent title or power of disposition, and third parties are thereby induced to deal with him, they shall be protected. *** The rights of innocent third parties * * * do not depend upon the actual title of authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making conveyance." Either appellants or Witherspoon, Barr & Co. must suffer by the alleged wrong of the elevator company. As between them, the loss ought to fall upon appellants. Not asking that their identical wheat should be kept for them, they trusted to the honesty of the elevator company, that in quality and quantity the amount stored should be returned to them. As between them and the elevator company they are innocent of wrong or laches. As between them and Witherspoon, Barr & Co. the rule should be applied, that where one of two innocent persons must suffer by the wrong of a third person, he must be the sufferer who put it in the power of the wrong-doer to cause the loss. In the case of New York, etc., R. Co. v. Schuyler, 34 N. Y. 30, 69, we find this statement: "It goes back to the celebrated aphorism of Lord Holt in Hern v. Nichols, 1 Salk. 289, for seeing somebody must be loser by this deceit, it is more reason that he that employs and puts trust and confidence in the deceiver should be the loser than a stranger;' or as more tersely expressed by Ashhurst, J.,in Lickbarrow v. Mason, 2 T. R. 70: Whenever one of two innocent parties must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it." See also Quick v. Milligan, supra; Hunter v. Fitzmaurice, 102 Ind. 449; Young v. Bradley, 68 Ill. 553. Ind. Sup. Ct., Dec. 21, 1886. Preston v. Witherspoon. Opinion by Zollars, J.

EVIDENCE-DECLARATIONS OF DECEDENT.-In a suit by an administrator to collect a promissory note, and foreclose a mortgage executed to his decedent, the defense being that by subsequent agreement the note was paid by the defendant's supporting the decedent during his natural life, declarations of the decedent, shortly before his death, and subsequent to the alleged agreement, that he was holding the mortgage against the defendant, but feared he would cheat him out of it, are inadmissible to rebut evidence of declarations by him admitting the agreement relied on in defense. In order that such declarations, accompanying an act, may be competent as a part of the res gestæ, manifestly the act itself must be material to the issue involved. When there is a question of ownership, for example, it is competent to prove possession, because possession is prima facie evidence of ownership, and because possession is thus material, declarations accompanying it are competent. In the case before us there is no question as to the ownership of the notes and mortgage while Brown, the payee, was alive. He was the owner, and entitled to the possession of them. That was in no way called in question by appellee. The only question for trial was as to whether or not the agreement set up in the answer was entered into betwen the parties, and if so, whether or not appellee had performed his part of that agreement. If there was such an agreement, and appellee had performed his part of it, the notes were paid. It was a question of payment. The manner of payment was such that it could not be completed until the death of Brown, and until then appellee was not entitled to the possession of the notes and mortgage. The possession by Brown was not an act material to the issue tendered by appellee's answer; nor would the declaratious