to the action (Mead v. Mitchell, 17 N. Y. 210). Order below affirmed. Brevoort v. Brevoort. Opinion by Allen, J.

2. Who entitled to maintain action.- Plaintiff had a present estate per autre vie in an undivided portion of the premises, and a contingent remainder in fee in two several undivided parts of the same premises. Held entitled to maintain an action for partition. Ib. [Decided June 12, 1877.]

RAILROAD AID BONDS.

When limitation upon issue imposed by town valid: unauthorized agreements by town officers: constitutional law. The town of Ellicott authorized, under the provisions of the various town bonding acts, the issue of bonds in aid of the Buffalo and Jamestown Railroad. The condition of the issue was that the railroad should be constructed through the village of Jamestown before the bonds should be delivered to the railroad company or sold. Commissioners were appointed to issue such bonds, but they were forbidden to issue until the acts mentioned were done. By Laws 1871, ch. 925, § 1, towns are allowed to affix conditions to the issue of bonds such as the one mentioned. By the constitutional amendment of 1874 towns are forbidden to issue bonds. After the act of 1871 was passed the commissioners of the town and the railroad company made an agreement whereby the bonds were to be issued when the railroad should be merely located through Jamestown. Held, that the completion of the road was essential to the valid issue of the bonds, and the commissioners were unauthorized to make any agreement changing the condition; that the railroad company before the completion of its road through Jamestown could not require the bonds to be issued, and if that event did not take place before the constitutional provision mentioned went into force, the bonds could not be issued, the town having no longer authority to incur obligations of such a nature. Judgment below affirmed. (Town of Concord v. Savings Bank, 2 Otto, 625, and County of Moultrie v. Savings Bank, id. 631, distinguished.) Buffalo and Jamestown R. R. Co. v. Weeks et al., Com'rs. Opinion by Folger, J. [Decided May 22, 1877. Reported below (sub nom. Buf. and J. R. R. Co. v. Judson et al.), 7 Hun, 499.]

SERVICE.

1. Defective service upon non-resident defendants in action affecting real estate: effect of. In an order of publication in an action affecting real estate, it was directed that the summons be published and that a copy of the summons and complaint be deposited forthwith in the post-office directed to defendants named, who had interest in the real estate, and among others to G. B., "at Galleon, Ohio," and to H. B., " at Union City, Ind." The proofs showed that copies of the summons and complaint were deposited in the post-office, addressed to G. B. and H. B., at Sylvania, Ohio, and there was no proof of personal service upon either of these persons. Held, that the judgment would not affect the interest of H. B. or G. B., and the purchaser at a sale thereunder was not obliged to complete his purchase. Judgment of General and Special Terms reversed. Smith v. Wells. Opinion by Andrews, J. 2. Small interest of defendants not served no answer to application to relieve purchaser.-The fact that the interest of H. B. and G. B. was small, held, not to be material. A purchaser on a judicial sale is entitled to demand a good title. Ib. [Decided May 22, 1877.]

SURROGATES' COURT.

Practice in: objections to account filed under 2 R. S. 92, § 52: referee and “auditor.”-Appellants were trustees under a last will and testament. Respondents,

under the provisions of 2 R. S. 92, § 52, obtained from the surrogate of New York an order for appellants to account. Appellants appeared and filed their account and respondents filed objections thereto and the matter was referred to an auditor. Appellants made certain corrections to the account and moved that the objections be set aside and also the order appointing an auditor, on the grounds that appellants could not raise objections to the account but the surrogate alone, and that under Laws 1870, chap. 359, only a referee can be appointed in such a case and not an auditor. Held, (1) that even though the surrogate alone has power to examine the accounts of a trustee in such a case he has a right to receive suggestions from others, and it is not error for him to receive and use the objections filed; and (2) that the appointment of an auditor was a sufficient compliance with the statute. Though called an auditor the person appointed was in fact only a referee and had only the powers of a referee. Order below affirmed. Buchan et al., appellants, v. Rintoul. Opinion by Earl, J.

[Decided May 22, 1877.]

NOTES OF RECENT DECISIONS.

Attorney and client: suretyship.- Although an attorney at law has no authority to compromise a client's case by virtue of his employment as attorney, yet, if he by way of compromise makes an agreement to give the debtor further time and obtains additional security by doing so, the principal, who knowingly accepts the benefit of the arrangement, ratifies it and is bound by it. 10 Paige, 126. Where plaintiff got judgment and execution against the debtor and his surety, and the execution was levied on real estate and a threshing machine of the debtor, the real estate being exempt from execution under the homestead law, and the debtor gave a new note for the whole amount of judgment and costs, payable six months after date, secured by deed of trust on the real estate, and, thereupon, the plaintiff's attorney surrendered the threshing machine to the debtor, and ordered the execution to be returned, the plaintiff knowing the arrangement, it was held that the surety was discharged. Sup. Ct., Missouri, April, 1877. Semple et al. v. Atkinson et al. (Cent. L. J.).

Chattel mortgage: to secure future debts and upon goods to be acquired, void.- A mortgage, made to secure debts maturing at a future day, which conveys a stock of goods in a particular store, and any other goods which may from time to time, during the existence of the mortgage, be purchased by the grautors and put into said store to replace any part of said stock which may have been disposed of, or to increase and enlarge the stock now on hand, is void per se. Chancery, Tennessee, April, 1877. Phelps v. Murray.

Contributory negligence: aged person on streets.— An aged person, whose eyesight is impaired, is not guilty of contributory negligence in walking the streets of a city. Sup. Ct., New York, 4th Dep., April, 1877. Peach v. City of Utica.

Criminal evidence: testimony sustaining accomplice.— An accomplice, besides proving the murder, testified to a number of subsequent occurrences, which, although not directly connecting the prisoners with the

commission of the crime, yet tended to explain the relations, conduct and motives of the prisoners. The commonwealth then called other witnesses to prove these occurrences. Held, that this evidence was not simply corroboration of an accomplice upon immaterial points, but was to a large extent independent and confirmatory, and in view of the other evidence in the cause was properly admitted. Sup. Ct., Pennsylvania, May 7, 1877. Carroll v. Commonwealth (W.❘ N. Cas.).

Criminal Law: evidence: testimony of detective: what degree of credit to be given to: character of evidence admissible to prove motive for crime: connection of prisoner with criminal organization.— A detective who joins a criminal organization for the purpose of exposing it, and who, without any felonious intent and solely for the purpose of discovering, arresting, and punishing the criminals, counsels and encourages members who are about to commit crime, is not an accessory before the fact, and his testimony is not to be treated as that of an infamous witness. Upon a trial for murder, it appeared that the crime was committed by strangers to the deceased, and without any apparent motive. Held, that it was competent for the commonwealth to explain the motive by showing the existence, object, and practice of a criminal organization to which the prisoner belonged and through whose agency the murder was committed. Sup. Ct., Pennsylvania, May 7, 1877. Campbell v. Commonwealth (W. N. Cas.).

Criminal law: cessante ratione lex cessat: unlawful marriage. The Texas statute of 1868 (Paschal's Dig. 2016), making it a felony for a white person to marry a negro, held to be repealed by implication. "The law in question was simply one of a system, brought into existence by the institution of slavery and designed for its support, and which, like all other laws on the subject, disappeared along with that institution." Dist Ct., Texas, 1st Jud. Dist., March, 1877. Stute v. Webb (4 Cent. L. J. 588).

Husband and wife: decree against husband granting alimony in divorce suit cannot cut off creditors of husband: homestead.- Alimony cannot be assigned to the wife, upon granting her a divorce, so as to defeat the claims of the existing creditors of the husband at the time the wife's suit for divorce was commenced. When real estate, subject to the debts of the husband, has been assigned to the divorced wife for alimony, and she put in possession thereof, a creditor who has recovered judgment against the husband and had execution returned nulla bona may come into equity and have a decree for the sale of the land. The creditor in such case cannot reach the homestead or other property exempt from execution. His rights are only those he might have had against the property in the hands of the husband before the decree for divorce. Chauc., Tennessee. Powell v. Warren (1 Tenn. L. Rep. 47).

Marriage: civil contract merely, and no formal solemnization required: presumption as to.- Under chapter 61, General Statutes of Minnesota, marriage is a civil contract, of which consent is the essence. A mutual agreement between competent parties, "per verba de presenti," to take each other for husband and wife, deliberately made and acted upon by living together professedly in that relation, is sufficient, without any formal solemnization or ceremony, to give it validity in law. The policy of the law favors matrimony and legitimacy rather than concubinage and bastardy, aud

hence every reasonable presumption should be allowed to support the former and to defeat the latter. Sup. Ct., Minnesota, April 25, 1877. State v. Worthinghum (N. W. L. Rep.).

Negligence: duty of owner of wharf as to vessels mooring there: municipal corporation.-The owner of a wharf who receives, or is entitled to receive, wharfage for vessels moored thereto, is bound to use at least ordinary care and diligence in keeping the water adjacent to such wharf, in which vessels lie moored thereto, free from obstructions, and is liable for any damage done to any such vessel by reason of the neglect of such duty. And the same principles apply, whether the wharf-owner be an individual or a corporation, and whether such corporation be private or municipal. Sup. Ct. Appeals, Virginia. City of Petersburg v. Applegarth's Admr. (1 Va. L. J. 347).

Receiver: when court of equity will not appoint receiver of railroad.- A court of equity will not appoint a receiver of a railroad merely upon a showing that there has been a default in the payment of interest secured by a mortgage of the properties and income of the company; that upon such default the trustees under the mortgage were entitled to immediate possession; that they have demanded possession, and that the same has been refused. It is necessary, in addition to this, to show that ultimate loss will happen to the beneficiaries under the mortgage by permitting the property to remain in the hands of its owners until final decree and sale, if such decree and sale be made. The facts in this case examined and held not to exhibit such danger to the bondholders as will warrant the appointment of a receiver. The case of Williamson v. New Albany R. R. Co., 1 Biss. 498, followed. U. S. Circ. Ct., E. D. Missouri, June, 1877. Union Tr. Co. v. St. Louis, I. M. and S. R. R. Co. (4 Cent. L. J. 585).

Statute of frauds: guaranty.-Defendant, assuming to act as plaintiff's agent, on August 22, 1872, took from one Robbins (the maker) a note payable to defendant's order. The note was thus taken as the property of the plaintiff, and without any purpose on defendant's part of acquiring any ownership in it for himself. On August 27, 1872, defendant made and signed the following indorsement on the note, viz.: "Notice and protest waived. I guarantee the collection of the within note," and on the same day transmitted the note to plaintiff. Plaintiff having received the note and retained it without objection, brings this action upon the supposed guaranty. Held, that the supposed guaranty is clearly within our statute of frauds, and void for want of an expressed consideration, since it appears, first, that there was a debt owing by Robbins to plaintiff, evidenced by the note; second, that the guaranty was a special promise to answer for a debt of Robbins which continued to subsist; and third, that the guaranty was not founded on any new and original consideration moving to the guarantor. Sup. Ct., Minnesota, May 15, 1877. Shephard v. Allen (N. W. L. Rep.).

of which had cut off the carrying out of the contract was void. Objection was raised that the action should have been at law. The court said that the objection that there is a remedy at law is available only where such remedy is as plain, adequate, and effectual as the remedy in equity. Boyce's executors v. Grundy, 3 Pet. 215. Here, if the complainants could recover the moneys claimed, they would be entitled also to discovery and an account. Where this objection lies, it is the duty of the court, sua sponte, to take notice of it and give it effect. There is in such cases a constitutional right to a trial by jury. Parker v. The Woolen Co., 2 Black, 551. Another defense was that the claim was stale, more than seventeen years having elapsed after such action should have been taken before the bill was filed. As to this point the court said: To let in the defense that the claim is stale, and that the bill cannot, therefore, be supported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive and refuse relief. Every case is governed chiefly by its own circumstances; sometimes the analogy of the statute of limitations is applied; sometimes a longer period than that prescribed by the statute is required; in some cases a shorter time is sufficient, and sometimes the rule is applied where there is no statutable bar. It is competent for the court to apply the inherent principles of its own system of jurisprudence and to decide accordingly. Wilson v. Anthony, 19 Barber (Ark.), 16; Taylor v. Adams, 14 id. 62; Johnson v. Johnson, 5 Alabama, 90; Ferson v. Sanger, 2 Ware, 256; Fisher v. Boody, 1 Curtis, 219; Cholmondly v. Clinton, 2 Jac. & Walker, 141; 2 Story's Eq. § 1520 (a).

"A court of equity, which is never active in giving relief against conscience or public convenience, has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court." Smith v. Clay, Ambler, 645.

If the complainants had severally sought to enforce their claim in an action at law, ex delicto or ex contractu, the bar of the statute of limitations would have been complete after the lapse of six years. Rev. Stat. of 1857, p. 510.

This bill was filed on the 21st of February, 1871.

The complainants were supine and silent for more than seventeen years. In the meantime the Kennebec and Portland company became hopelessly and finally insolvent and its affairs a wreck. Proceedings were instituted to foreclose the second mortgage and brought to a close. The company lost all its property and has since existed only in name. A new corporation has come into existence and acquired and owns all the property and effects lost by the old one. This transfer occurred more than seven years before the first step was taken in the present case. This long delay thus characterized is unaccounted for. The facts are amply sufficient to warrant the application of the rule of laches and to give it the fullest effect.

WHAT CONSTITUTES A BANKER UNDER THE REVENUE LAW.

SUPREME COURT OF THE UNITED STATES - OCTOBER TERM, 1876.

SELDEN, COLLECTOR, plaintiff in error, v. THE EQUITABLE TRUST COMPANY.

A trust company which merely invests its capital in mortgage securities and sells those securities with its own guaranty, held, not to be a banker either in the ordinary acceptation of the word or under the United States revenue laws.

IN

error to the Circuit Court of the United States for the District of Connecticut. The facts appear in the opinion.

Mr. Justice STRONG delivered the opinion of the court.

The Equitable Trust Company is a corporation created by the laws of the State of Connecticut, and its principal office or place of business is at New Haven in that State. Its "only business has been and is the investing of its own capital in mortgage securities on real estate, and selling such mortgage securities with the company's guaranty. It does not, nor has it ever, collected or received any deposit of money subject to be paid, or remitted on draft, check, or order, nor does it receive deposits, issue notes, or make discounts of any description whatsoever, nor do any other business than above stated." In "investing said capital in mortgage securities on real estate as aforesaid, the manner adopted by the corporation has been and is as follows: To make loans thereof to individuals, taking from the borrower a bond * and securing the payment of said bond by a mortgage deed of real estate, executed by the borrower in conformity with the laws of the State where such real estate is situated. To the negotiation, sale and guarauty of such bonds this company is exclusively devoted, and it incurs no obligations except those arising from such guaranty." That such is the character of the company, and that such is the nature of its business, is stipulated of record, and the only question presented by the case is whether a corporation doing such a business is a "banker" within the meaning of section 3407 of the Revised Statutes of the United States relative to internal revenue.

Clearly the company is not a banker in the ordinary acceptation of the word. But Congress has defined who shall be regarded as bankers for the purposes of taxation under the revenue laws. The 3407th section of the Revised Statutes, page 673, has enacted that "every incorporated or other bank, and every person, firm or company having a place of business where credits are opened by the deposit or collection of money or currency, subject to be paid or remitted upon draft, check or order, or where money is advanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes, or where stocks, bonds, bullion, bills of exchange, or promissory notes are received for discount or for sale, shall be regarded as a bank or banker."

The statute describes three classes of artificial and natural persons, distinguished by the nature of the business transacted by them, and declares that individuals embraced in either of the classes shall be considered baukers. The first class is composed of those who have a place of business where credits are opened by the deposit or collection of money or currency subject to be paid or remitted upon draft, check or order.

It is not claimed the company engaged in that branch of business or that they are included in this first class. The agreed state of facts expressly repels any such claim.

The second class are those who have a place of business where money is advanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes. It is contended on behalf of the plaintiff in error that the company is included in this class, because it advances or loans money on bonds. The case, however, states that all the loans the company makes are investments of its own capital in mortgage securities on real estate. It is true the bonds of the borrowers are taken with the mortgages, but the bouds are mere evidence of the debt. The money is advanced or loaned on the security of the real estate mortgaged, and not on the security of the bond. We think Congress, in the clause of the act we are now considering, intended reference to transactions entirely different from loans or advances made on the personal promise or undertaking of the borrower. The words used are not technical. They are, therefore, to be understood in their common and popular sense. Dwarris on Statutes, 573. And that in common understanding an advance or loan of money on stocks, bonds, bullion, bills of exchange, or promissory notes is an advance or loan where those species of property are pledged as collaterals, or are hypothecated to secure the return of the advance or the payment of the sum lent, is unquestionably true. It can be nothing else where the money is advanced or lent on stocks or bullion, and by the statute bonds, bills of exchange, and promissory notes are placed in the same catalogue with stocks and bullion. All of them are alike the subjects on which the advance or loan is made. It is a fair presumption, therefore, that Congress regarded an advance or loan on bonds as similar in its character to an advance or loan on stocks, involving in each case a hypothecation of the subject on which the advance is made. If not so, if it was intended to embrace loans generally, there was no necessity for introducing the qualifying words "on bonds, bills of exchange, or promissory notes." It was, however, not the lending, but the method or mode of operation which was in view. If it was mere lending Congress had in contemplation, it is difficult to conceive of a reason why mortgages of real estate were not included with stocks, bonds, bullion, etc. But it is a well known common usage for banks to make advances or loans on the hypothecation or pledge of such property, though not upon the hypothecation or mortgage of real estate. There was a reason, therefore, for omitting real estate from the catalogue of things upon which the advances or loans contemplated might be made. Advances on that are not within the ordinary business of a banker. To us, therefore, it appears plain that it is the business of advancing or lending in the mode usual with bankers, that is, on collaterals or on the pledge of personal property, that, by the statute, is defined to be banking, within the intention of Congress, and that lending upon mortgages of real estate is not intended.

The third class described by the statute comprises those who have a place of business where stocks, bonds, bullion, bills of exchange, or promissory notes are received for discount or for sale. The language is not "where stocks, bonds, etc., are sold," or are held for sale." Surely Congress did not intend that corporations or persons who have a place of business where they sell their own stocks, bonds, bullion, bills, or

notes should be regarded as bankers. If they did, a vast proportion of the corporations and of the merchants and manufacturers of the country would be included. But the language of the statute is "where" such property is "received" "for discount or for sale." The use of the word "received" is significant. In no proper sense can it be understood that one receives his own stocks and bonds, or bills, or notes for discount or for sale. He receives the bonds, bills, or notes belonging to him as evidences of debt, though he may sell them afterward. Nobody would understand that to be banking business. But when a corporation or natural person receives from another person, for discount, bills of exchange or promissory notes belonging to that other, he is acting as a banker, and when a customer brings bonds, bullion, or stocks for sale, and they are received for the purpose for which they are brought, that is, to be sold, the case is presented which we think was contemplated by the statute. In common understanding he who receives goods for sale is one who receives them as an agent for a principal who is the owner. He is not one who buys and sells on his own account.

The Equitable Trust Company lent its own money, taking bonds and mortgages therefor. Those bonds it sold with a guaranty. It sold only its own property, not that it had received from other owners for sale. Such a business, in our opinion, did not constitute the corporation a banker, as defined by the revenue laws.

The judgment of the Circuit Court is affirmed.

VOLUNTARY

אן

CONVEYANCE BY WEAK

MINDED PERSON-LACHES.

N the case of Allore v. Jewell, recently decided by the Supreme Court of the United States, the court hold that whenever there is great weakness of mind arising from age, sickness, or any other cause in a person executing a conveyance of land, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside. The action here was brought by the heir-at-law of Marie Genevieve Thibault, late of Detroit, Michigan, to cancel a conveyance of land alleged to have been obtained from her a few weeks before her death, when from her condition she was incapable of understanding the nature and effect of the transaction. The conveyance was of a quantity of land in Detroit worth from six to eight thousand dollars for the consideration of two hundred and fifty dollars cash and an annuity of five hundred dollars during the life of the grantor and payment of her physician's bills and the use of the house thereon, or the rent of such other house as she might occupy. At the time the conveyance was made the grautor lived alone in great degradation, and was in a condition of mind bordering on the line between sanity and insanity. A number of suspicious circumstances accompanied the transaction and only the grantee and his agent and attorney were shown to be present at the time it took place. The court below refused a decree setting aside the deed complained of. In reversing this decision the Supreme Court said: "It is not necessary, in order to secure the aid of equity, to prove that the deceased was at the time insane, or in such a state of mental imbecility as to ruder her