fact, and promises when due that he will pay it to the person who may at the time happen to be the legal holder of the same. The purchaser is not bound to inquire. The maker has absolved him from that duty. Where he has paid full consideration for the note before due, fraud only will prevent his recovery, or gross negligence equivalent to fraud. 1n Goodman v. Harvey, 4 Ad. & E. 870, which was an action on a bill of exchange. Lord Denman says: "We are all of opinion that gross negligence only would not be a sufficient answer, where a party has given consideration for the bill: gross negligence may be evidence of mala fides, but it is not the same thing." In Goodman v. Simonds. 20 How. 343, it was held that a bona fide holder of a negotiable instrument for a valuable consideration, without notice of facts impeaching its validity, if indorsed to him before due, may recover upon it, though, as between antecedent parties, the transaction may be without any validity, In Murray v. Lardner, 2 Wall. 110, it was decided that a purchaser of coupons, in good faith, was unaffected by the want of title of the vendor. Applying the principles applicable to a note indorsed before maturity, Swayne, J., says: "Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer, will not defeat his title. That result can only be produced by bad faith on his part."

The purchaser of negotiable paper not due is under no obligation to make inquiries as to its origin, Nor is he required to be on the alert for circumstances which might excite suspicion. Magee v. Badger, 34 N. Y. 247; Belmont Branch Bank v. Hoge, 35 Id. 65. A party taking a bank bill in good faith may recover upon it, although he be guilty of gross negligence in not ascertaining that it had been fraudulently put in circulation. Worcester County Bank v. Dorchester & Milton Bank, 10 Cush. 488. A note may be negotiated on the last day of grace within business hours and the purchaser acquires a good title, unless he has notice of a defect in the consideration. Gross negligence in not making inquiry is insufficient per se to defeat his title, though it may constitute evidence of fraud. Crosby v. Grant, 36 N. H. 273. In Smith v. Livingston, 111 Mass. 342, 345, the doctrine of Goodman v. Simonds, 20 How. 343, is adopted as the true view of the law, notwithstanding previous decisions which are in conflict with it. "The true question," says Morton, J., "for the jury is not whether there were suspicious circumstances, but whether the holder took it without notice of any infirmity or taint. This rule is simple, easily understood and acted on, and in conformity with the general principles of commercial law, which protect the free circulation of negotiable paper. The other rule laid down in some of the cases, that an indorsee for value cannot recover if he takes the note without due caution, or under circumstances which ought to excite the suspicions of a prudent man, is indefinite and uncertain. Circumstances which might excite the suspicion of one man might not attract the attention of

another. It is a rule which business men cannot act upon in the ordinary affairs of life with any certainty that they are safe."

In Phelan v. Moss, 67 Penn. St. 59, it was held that the purchaser, before due and without notice, of a negotiable promissory note, fraudulent as between the original parties, gets good title thereto, although he took it uuder circumstances which ought to excite the suspicion of a prudent man. Gross negligence is not enough to defeat the title of the holder for value; mala fides must be shown. So it was held in Hamilton v. Vought, 34 N. J., 187, that, in the absence of bad faith, the taking of a note under suspicious circumstances would not avail to defeat it. A charge, that the indorsee of a note before maturity, the defense being fraud, could not recover if he had notice of such facts and circumstances as would have put a prudent man on inquiry, was held erroneous. The jury should have been instructed that actual notice of fraud was necessary to defeat a recovery. Lake v. Reed, 29 Iowa, 258. In Johnson v. Way, 27 Ohio, 374, the same rule was established. In Hamilton v. Marks, 3 Cent. L. J., 740, the questions here presented were examined and determined by the Supreme Court of Missouri. It was there held that where a negotiable note is taken in good faith and for value before maturity, the holder has a good title, notwithstanding there may have been circumstances connected with the transfer sufficient to have put an ordinarily prudent man on inquiry. In Morehead v. Gilmore, 77 Penn. St., 118, 119, Sharswood, J., in delivering the opinion of the court, says: "The latest decisions in England and in this country have set strongly in favor of the principle that nothing but clear evidence of knowledge or notice of fraud or mala fides can irapeach the prima facie title of a holder of a negotiable paper taken before maturity. It is of the utmost importance to the commerce of the country that it should be strictly adhered to, however hard its operations in particular instances." In Collins v. Gilbert, 94 U. S. 753, it was held that a negotiable instrument, payable to bearer or indorsed in blank, produced by a transferce suing to recover the contents, is, when received in evidence, clothed with the prima facie presumption that he became the holder of it for value at its date in the usual course of business, without notice of anything to impeach his title. "Proof of such facts and circumstances," observes Clifford, J., in delivering the opinion of the court, "as would have put a reasonable man upon inquiry in relation thereto, are not sufficient to constitute a defense to a suit by the holder. Lake v. Reed, 29 Iowa, 258; Gage v. Sharpe, 24 Id. 15." In Brown v. Spofford, 95 U. S. 474, the same doctrine was re-affirmed, Clifford, J., remarking that "nothing short of fraud, not even gross negligence, if unattended with mala fides, is sufficient to overcome the effect of that evidence (possession), or to invalidate the title supported by that evidence." Mere negligence on the part of the indorsee of negotiable paper is not sufficient to deprive him of the character of a bona fide holder. Proof of bad faith will alone deprive him of that character. Shreeves

v. Allen, 79 Ill. 553; Johnson v. Way, 27 Ohio, 374; Hamilton v. Marks, 63 Mo. 167, 3 Cent. L. J. 730; Harvey v. Eppinger, 34 Mich. 29; Commercial National Bank v. First National Bank, 30 Md. 11.

The leading case opposed to the decisions cited is that of Gill v. Cubitt. 3 Barn. & Cress. 466, in which Abbott, C. J., instructed that "there were two questions for their consideration: first, whether the plaintiff had given value for the bill, of which there could be no doubt; and, secondly, whether he took it under circumstances which ought to have excited the suspicions of a prudent and careful man. If they thought that he had. taken the bill under such circumstances, then, notwithstanding he had given the full value for it, they ought to find a verdict for the defendant.' This the jury did, and the ruling of the presiding judge was sustained. But, as has been seen, the rule then first promulgated in England, has been repudiated there as well as by the Supreme Court of the United States, and of the several states wherever the question has arisen. Mere suspicion is too vague a basis for any rule. Some are more suspicious than others. One may suspect where another would not.

In this State, though there may be found some remarks indicating an approval of the doctrines of Gill v. Cubitt, there has been no authoritative decision sustaining the law as stated by Abbott, C. J., In Aldrich v. Warren, 16 Me. 465, the ruling of the court was "that, if it was made out that there was fraud in the inception of the note, the burden of the proof was on the plaintiff to show that he came innocently by it and paid a fair consideration for it." To this ruling exception was taken. The only question for adjudication was the correctness of this ruling. The court affirmed it, but in the opinion of Weston, C. J., added an element not put in issue by the exceptions, and not required for the determination of the cause, viz., that the transfer should be "unattended with any circumstances justly calculated to awaken suspicion." This new element must be regarded as a mere obiter dictum. In Perrin v. Noyes, 39 Me. 384, 385, no such statement of the rule as given by Weston, C. J., was necessary to the decision of the case or was called for by the exceptions. In Wait v. Chandler, 63 Me. 257, Walton, J., ruled that evidence to impeach a promissory note in the hands of a bona fide purchaser before maturity and without notice, was inadmissible. In other words, he must have actual notice-a mere knowledge of suspicious circumstances would not be enough. In Smith v. Harlow, 64 Me. 510, 511, the court found the purchase of the bonds in controversy to have been made in good faith, for value, and without notice of any fraud. In Abbott v. Rose, 62 Me. 194, it was held that a bona fide purchaser without notice of any fraud may recover, although as between the original parties there was fraud in the inception of the note.

The result, after a careful examination of the authorities, is that the holder of negotiable paper, taking it before maturity for good consideration in the usual course of business, without knowledge of

facts impeaching its validity, holds it by a good title. To defeat his recovery, it is not enough to show that he took it under circumstances that ought to excite suspicion in the mind of a prudent


Applying the principles established by an overwhelming weight of authority to the facts found in the case at bar, the plaintiff's right to recover is fully established. He had neither actual nor constructive notice of fraud, if it existed. He took the notes for value and in the usual course of business. The fact that a small discount was made is immaterial. It afforded no reason to suspect dishonesty in the obtaining the notes in suit, still less can it be regarded as establishing fraud in their inception, or as affording actual notice of its existence. Judgment for plaintiff.


BARROWS, J., concurred in the result, because there was no evidence to connect the merchant with the peddler, except the inadmissible statement of the defendant that the peddler said he was the agent of the merchant, which should have been stricken out.

DICKERSON, J., non-concurred, on the grounds that the statement that "the goods were manufactured from the best material" was an assertion of a material fact known by him to be false, but not known or determinable by the defendant on inspection of the goods; and that the facts should be submitted to the jury on the question of notice.

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LANDLORD AND TENANT-DISPUTE OF TITLE.-1. Although a tenant can not dispute the title of his landlord so long as it remains as it was at the time the tenancy commenced, yet he may show that the title, under which he has entered, has expired, or has been extinguished; thus a tenant, under no obligation or duty to pay taxes, may purchase the property at a tax sale, made during his term, and resist the recovery of his former landlord for rent, accruing after the tax sale, by virtue of an adverse title so acquired. Opin. ion by HORTON, C. J. Affirmed. All the justices concurring.-Weichslebaum v. Curlett.

LEGISLATURE-EACH HOUSE THE TRIBUNAL TO DECIDE THE QUALIFICATIONS OF ITS OWN MEMBERS. -1. In an action, prosecuted by the state, on the relation of the Attorney-General to try the title of a defendant to his seat in the House of Representatives of the Legislature, and to oust him from office, where such defendant, upon the convening of the Legislature, was declared and adjudged by the House to be a mem ber and entitled to a seat in that body, and has contin ued to act as a member: Held, that this court has no jurisdiction to determine the question, as the power to judge of the elections, returns and qualifications of its own members is vested in each House, and can not, by its own consent, or by legislative action, be vested in any other tribunal, or officer. Opinion by Horton,

C. J. Judgment for defendant. All the justices concurring.-State v. Tomlinson.

HOMESTEAD-TENANT-HOUSE ADJOINING HOMESTEAD NOT EXEMPT.-1. Where a judgment for money is rendered in the district court, against a person who owns real estate within the county, and such real estate is not the homestead or any part thereof of the owner; Held, that a judgment-lien attaches to such real estate, and that, under and by virtue of such judgment-lien, such real estate may be levied upon and sold under an execution issued on such judgment, although, at the time of such levy and sale the property may be occupied as the homestead of the owner. 2. Where a lot (or part of a lot) with a house thereon, situated in an incorporated city, is rented for a money rent, to a tenant, who is not a servant or an employee of the owner, with the intention that said house and lot shall become the home and residence of such tenant and his family, and they actually do become the home and residence of such tenant and his family: Held, that such house and lot can not be considered as a part of the homestead and residence of the owner, so as to be exempt from legal process under the homestead exemption laws, although such lot may adjoin the homestead of the owner. Opinion by VALENTINE J Affirmed. the justices concurring.-Ashton v. Ingle.


EVIDENCE-AGENT-WITNESS-IMPEACHMENT.— 1. Where the only cause of action, stated in the plaintiff's petition, was that defendants threw down and opened plaintiff's fence and entered plaintiff's close, and there threshed and carried away a certain amount of grain, and on the trial it appeared that the plaintiff's wife forcibly resisted such trespass: Held, that it was error to permit testimony as to the character and extent of the injuries she received, and the length of time she was incapacitated from labor in consequence thereof. 2. When, in the absence of the husband from home, the wife acts in protection of property claimed by him, and within the home limits, although without any express direction or agreement, she is acting as his agent and will be a competent witness in an action by or against him, as to what she does and resists. 3. Every person, who is a party to an action and not incompetent to testify, has a right, in protection of his interest, to be heard as a witness as to what he has seen and knows of the principal matter in controversy; and the court may not, by limiting the number of witnesses on a side, deprive him of that right. 4. Impeachment is an attack upon the present credibility of a witness; and an impeaching witness, who testifies that he knows the general reputation for truth and veracity, will not be excluded from giving testimony as to that reputation, because it appears that such knowledge has been obtained and is based solely upon matters transpiring since the commencement of the action; that fact affects the weight and not the competency of the impeaching testimony. Opinion by BREWER, J. Reversed. All the justices concurring.-Fisher v. Conway.

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the non-payment of the required annual premium, at the designated time, is declared to be a ground of forfeiture; but the uniform custom of the insurance company has been to give notice of the time when the premiums fall due, and to collect the same at the residence of the policy holder, through a local agent resiȧing in his neighborhood, good faith requires that this mode of collection should not be discontinued, and payment required at the company's office, without notice to the insured. 2. Where the insurance company, under such circumstances, with a view to avoid the policy, gives private instructions to the local agent not to give such customary notice to the insured, and not to call on him, as usual, for the payment of the premium, no right to declare the policy forfeited arises from a default in payment caused by such strategy and bad faith. 3. Forfeitures are odious, and there must be no cast of management or trickery to entrap a party into a forfeiture. 4. If, in such case, the company wrongfully declares the policy forfeited, and refuses to accept the premium when duly tendered, and to give the insured the customary renewal receipt, evidencing the continued life of the policy, the assured is, in equity, entitled to demand a rescision of the contract, and a return of the premiums paid thereon, with interest from the times of payment. 5. Where the judgment of an inferior court is predicated upon a correct, basis, but is erroneously entered for too large an amount, by reason of an arithmetical miscalculation, such error may be corrected by a reviewing court, by a proper modification, and the judgment below be in all other respects affirmed. Judgment below modified by reducing its amount to $268.89, to which extent it is affirmed. Opinion by SCOTT, J. Johnson, C. J., did not sit.-Union Central Life Ins. Co. v. Pottker.

"CIVIL DAMAGE" LAW-EVIDENCE OF MARRIED WOMEN-CONDUCT OF TRIAL.-1. A married woman, called as a witness, may testify to all matters within her knowledge, except that she is incompetent to disclose communications between herself and husband made during coverture, or acts done in the presence of each other while the marriage relation between them exists, unless such communication was made or act done in the known presence, hearing or knowledge of a third person competent of being a witness. 2. On the trial of an action brought by a wife, under the provisions of section 7 of the "Act to provide against the evils," etc., as amended (67 O. L. 102), to recover damages for alleged injury to her means of support in consequence of the intoxication of her husband, sales of intoxicating liquors by defendant to her husband, made after the commencement of the action, may be given in evidence and considered by the jury, but only in assessing exemplary damages. 3. Where defendant, on cross-examination of plaintiff's witnesses, shows the general nature of the business in which he is engaged, it is competent for plaintiff, on re-examination, to inquire into the particulars of his business so far as it reflects upon the issue. 4. Whether testimony will be admitted, out of time, in the progress of a trial, is a question addressed to the sound discretion of the court, and where that discretion is exercised without abuse of the power, the mere irregularity of its admission is not a sufficient ground for the reversal of a judgment. 5. When intoxicating liquors are sold by the drink, under a fictitious name, a person who has drunk of the liquor sold under such fictitious name, may, as a witness, give his opinion as to its true name and quality. 6. Where a question, put to a witness on the trial, is excluded by the court as incompetent, to make such objection a valid ground for error it must appear in the record what was proposed to be proved thereby, and that it was something material, the rejection of which would be prejudicial to the plaintiff in error.

7. Where a single proposition selected from the charge by bill of exceptions is claimed to be erroneous, and other propositions to which it refers as given, and to be given in connection with it, are not found in the record, a reviewing court in support of the judgment will presume the charge as a whole, was a correct statement of the law of the case. Judgment affirmed. Opinion by ASHBURN, J.-Bean v. Green.

RAILROADS-NEGLIGENCE-FELLOW-SERVANTS.1. The employee of a railroad company takes the ordinary hazards of the service, also such risks as arise from his own negligence, or that of such of his fellowemployees, engaged in a common service with him, as have no authority or control over him; but takes no risk arising from the negligence of the company, or of a fellow-servant placed by the company in authority over him. 2. If, however, such employee, with a full knowledge of an habitual and continued negligence of the company or his superior fellow-employee in some particular matter, acquiesces therein and continues in the service of the company without any objection or effort toward a correction of the neglect, he thereby waives his right against the company and takes the risk upon himself. 3. Where it was the custom of such employees operating a railroad train to switch cars from the main track to a side track while the train is running, and to make such switches on the order of the conductor, without his personal supervision as required by a rule of the company: Held, that an employee, who accepted service on the train subordinate to the conductor, with full knowledge of such custom, or continued in the service after acquiring such knowledge, without any objection, and acquiesced in the custom, waives all right he might have against the company arising from such mode of doing the business, or from the neglect of the conductor in not personally superintending it as required by the rule of the company and if he be injured in making such customary switch through his own neglect or that of a fellow-employee on the train having no control over him, no recovery therefor can be had against the company. Judg ment reversed. Opinion by DAY, J.-Lake Shore & Mich. Southn. R. R. v. Knittal.


October Term (Davenport), 1878.

been filed, is not a sufficient compliance with the provisions of the statute requiring written notice of the filing of claim to be served on the owner of the property. Opinion by SEEVERS, J.-Lounsbury v. I. M. & N. P. R. Co.

PRACTICE ON APPEAL-ABSTRACT OF EVIDENCETRANSCRIPT.-1. The abstract of evidence, required to be filed by appellant, takes the place of a transcript of the record for the purposes of trial in this court, and its recitals will be conclusively presumed true where no additional abstract is filed by appellee. 2. While the appellee may insist upon the filing of a transcript as a matter of right, he must do so, and so notify the appellant, within a reasonable time after being served with a copy of his abstract. If he does not, further time to procure such transcript will be granted appellant upon motion being made to dismiss the appeal. 3. The objection that a case is not triable de novo, and that no errors have been assigned by appellant, can only be urged upon a submission of the case, and is not ground for motion to dismiss the appeal. Opinion by SEEVERS, J.-White v. Savery.

EVIDENCE-DEFECTIVE SIDEWALK-FAILURE OF PLAINTIFF TO TESTIFY.-1. In an action to recover of a city for injuries sustained by falling from a sidewalk in the night, at a place where there was an off-set in the walk, and where a barrier was maintained by the city, it was held that evidence of the condition of the barrier four months after the accident, and which tended to show that the defects then apparent were not of recent origin, was admissible. 2. The failure of the plaintiff to testify in his own behalf would not raise a presumption against him, it being shown that he sus tained by his fall a concussion of the brain, which impaired his mental power to some extent, although he may have been able to converse intelligently on general subjects. Opinion by ADAMS, J.-Cramer v. City of Burlington.

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STATUTE OF LIMITATION-PLEADING-MORTGAGE. -1. A demurrer to a petition on a promissory note on the ground that it shows the action to be barred by the statute of limitations, will not be sustained when the petition shows that the maker has not been a resident of the state since the maturity of the note, unless it also shows action thereon to be barred by the laws of some other state in which the maker has resided. 2. A mortgage executed to secure a note is a mere incident to the note, and an action thereon will not become barred, while the note may be enforced. Clinton County v. Cox., 37 Iowa, 570: Mahon v. Cooley, 36 Id. 479. Citing contra, Eubanks v. Leveridge, N. S. C.C. Dist. of Oregon, Chicago Legal News, Aug. 18, 1877. Opinion by ROTHROCK, C. J.—Brown v. Rockhold.

MECHANICS' LIEN-NOTICE OF FILING CLAIM-SUFFICIENCY OF.-The service of an original notice in an action asking the foreclosure of a mechanics' lien, which contains no statement that a claim for a lien has

LEASE ASSIGNMENT-ACTION FOR RENT.-Where the defendant took a lease which covenanted that he would " use and occupy the premises for and as a dry goods and millinery store," and that he would not lease or underlet the premises without the consent of the lessor, or those having its estate, and, subsequently, with the lessor's consent, made an assigu ment to one M, who agreed to use the premises for the millinery business and the sale of hair goods, the lessor's assent being given upon the express stipulation that its claim against the defendant should not be affected by the assignment and its assent thereto; and M assigned to one S, who was to occupy the premises as an office for a dye house, with the lessor's assent, but without the knowledge or assent of the defendant. It was held that, whether the use made of the premises by M was a change in the occupation prescribed by the lease, was immaterial, as the defendant's liability upon the covenant to pay rent would continue; but that the occupation by S was a different occupation, and the defendant was released from liability on the covenant

to pay rent while such occupation continued, Opinion by ENDICOTT, J.-Fifty Associates v. Grace.

CORPORATION-TRANSFER OF SHARES - NEGLIGENCE.-Where the holder of a certificate of shares in a corporation is the absolute owner, his assignment and delivery thereof will pass the title to the assignee; and the latter, upon surrendering the former certificate, may obtain a new one in his own name. Stone v. Hackett, 12 Gray, 227; Gen. St. c. 60, §§ 9, 10, 13; St. 1870, c. 224, §§ 22, 23, 26. If the holder appears upon the face of the old certificate to be the absolute owner, and the corporation has no notice that the fact is otherwise, it may safely issue a new certificate to the assignee, which, if taken in good faith, and for a valuable consideration, will vest a perfect title in him. Salisbury Mills v. Townsend, 109 Mass. 117; Pratt v. Taunton Copper Co., 123 Mass. 110. But, for the protection of the rights of the lawful owner of the shares, the corporation is bound to use reasonal le care in the issue of certificates, and if, by the form of the certificate, or otherwise, the corporation has notice that the present holder is not the absolute owner, but holds the shares by such a title that he may not have authority to transfer them, the corporation is not obliged, without evidence of such authority, to issue a certificate to his assignee; and if, without making any inquiry, it does issue a new certificate, it is liable to the rightful owner if he is injured by its negligent and wrongful act, without proof of fraud or collusion. See Lowry v. Commercial & Farmers' Bank, Taney, 310; Bayard v. Farmers' & Mechanics' Bank, 52 Penn. St. 232; Atkinson v. Atkinson, 8 Allen, 15; Shaw v. Spencer, 100 Mass. 382; Fisher v. Brown, 104 Mass. 259: Duncan v. Jandon, 15 Wall. 165. Opinion by GRAY, C. J. -Loring v. Salisbury Mills.

MALICIOUS PROSECUTION- EVIDENCE TO REBUT MALICE.-1. In ordinary actions for malicious prosecutions, proof that the defendant knowingly and designedly commenced a prosecution without reasonable or probable cause, would be sufficient proof of malice; but the question of the existence of malice is a distinct issue, and even if it be shown that the prosecution was without probable cause, it is competent for the defendant to introduce evidence to show that it was instituted in good faith and without malice. Savage v. Brewer, 16 Pick. 453; Cloon v, Gerry, 13 Gray, 201; Barrow v. Mason, 31 Vt. 189. 2. In the case at bar, the prosecution alleged to be malicious was a complaint made by the defendant to the municipal court of Boston, charging the plaintiff with an assault upon him, the defendant. The defendant admitted that he had not been assaulted, and want of probable cause for such complaint, but introduced evidence tending to show that he stated to the officer of the court that an assault had been committed upon one B, a servant of defendant, but by mistake, and without his knowledge, the assault was alleged to have been committed upon himself. He then offered evidence to show that an assault had been made upon said B by plaintiff immediately before said complaint was made. Held, that this evidence was competent and should have been admitted. Opinion by MORTON, J.-Ripley v. McBarron.

INSURANCE-WARRANTY-OCCUPATION OF PREMISES.-A policy of insurance contained the following clause: "Warranted a family to live in said house throughout the year." Held, that this was an express warranty, and without its literal and exact fulfilment the policy would cease to be binding upon the company. Daniels v. Hudson River Ins. Co., 12 Cush. 416; Sayler v. North Western Ins. Co., 2 Curtis, 610. Held, further, that the fact that two workmen slept in the house every night, and kept their trunks and cloth.

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ADMINISTRATION-CLAIM IN SIXTH CLASS-TRUST -RIGHT OF APPEAL.-Appellee presented a claim in the county court against the estate of B, which was allowed in the seventh class of cases. Subsequently, she asked that it be ordered paid as a claim of the sixth class. This was granted. It appears that B in his lifetime was guardian of C, and died with a large amount of money belonging to his ward in his hands. The ward presented a claim against the estate, and it was ordered paid as of the sixth class. The appellant was surety on the guardian's bond executed by B, and when appellee's claim was ordered paid as a sixth class debt, he obtained an appeal. Two questions, therefore, arise in this court: 1st. Whether, under the statute which reads "appeals shall be allowed from all judgments, orders of the county court in favor of any person who may consider himself aggrieved by any judgment," etc., appellant had such an interest in in the subject-matter of the litigation as gave him the right of appeal. 2d. Whether appellee's debt against the estate of B is of such a nature that it falls within ̧ the sixth class. As to the first point, the court decides. that appellant had the right of appeal. As to the second point, CRAIG, J., says: "Was the money held by the deceased received in trust for any purpose? The facts. are not in dispuse. Appellee received from her father's. estate some $6,000 in money and notes, which she placed in the hands of B for safe keeping. This was, deposited in a bank, and as money was collected it was placed to the credit of B. He kept an account with appellee, furnishing her money as she called for it, and cbarging himself with interest on the funds. Finally B furnished her with a statement of the whole transaction, and in settlement gave her a promissory note for the balance. There is no doubt, in regard to the fact that appellee reposed confidence in B, that he acted as a confidential adviser and finally became a debtor. But from these relations it by no means follows that a trust arose, or that the relation of trustee, or cestui que trust, existed. Where a person employs another as an agent, loans money, for sells property on credit, a confidence or trust is reposed to a greater or less degree, and yet such transactions have never been regarded by courts as falling within any recognized, class of trusts. The facts of this transaction do not bring it within the definitions of Perry on Trusts. Nor are we aware of any principle of law under which the money due from the decedent to appellee can be regarded as a trust fund. The case in principle does not differ from 22 Ill. 502. The court below erred in allowing appellee's claim in the sixth class." Re-versed.-McKee v. Gaud.

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