nature, etc., of butter. On a case stated, it was argued that Donovan, and not the inspector, was the purchaser, and that in this case the transaction had been complete before the shopkeeper ever heard of the inspector. But, said Coleridge, C. J., I think it plain that the conviction must be affirmed. It was clear the inspector was the purchaser, for he sent Donovan into the shop to make the purchase, and this was held in Horder v. Scott to be a purchase by the inspector. The whole proceeding occupied about two minutes, the inspector being outside the shop, and on getting the article he went in and gave the notice pursuant to the statute, and declared his intention. This was all that he was required to do." And Field, J., while concurring, said that any other construction of the act would very much cripple it in practice.

To cripple the operation of the Adulteration of Food and Drugs Acts in any way would, indeed, be calamitous. But, so far, we are glad to find that the cases have tended in a quite contrary direction. In some previous papers (13 Ir. L. T. 205, 465, reprinted, by the way, in the Edinburgh Journal of Jurisprudence), we discussed the only other decisions upon those acts yet reported, and our readers are now in a position to acquaint themselves without trouble with the whole law upon this important subject. That it is not effective enough to stamp out a grievance so disastrous to the entire community must, indeed, be admitted, and we understand that, since our former papers on this subject, a petition for presentation to Parliament has been prepared, and is being extensively signed here, praying for the adoption of a further remedial measure. Nor is further protection needed in respect of food alone-adulterated drugs are, if possible, a worse abomination. And if no other means is to be found of putting an end, at all events, to the supplying of our poor-law unions with plaster of Paris "sulphur," and "tincture of cinchona," only containing three-fourths of the amount of extract it ought to contain, while without any saffron whatever (as appeared in a recent instance), we only wish that drugs in future might be tested on the druggist; as the Holstein peasant, when he killed a pig, used to send a sausage to his pastor, waiting the consequences for fourteen days, when if the pastor continued healthy, the rest of the animal was disposed of without unpleasant trepidations about trichinæ.-Irish Law Times.

VENDOR'S LIEN-PURCHASE-MONEY DUE IN INSTALMENTS - SALE OF LAND TO SATISFY FIRST INSTALMENT.

DICKASON v. EBY.

Supreme Court of Missouri, March, 1881.

Where a vendor, who has conveyed an absolute estate in the land to his vendee, procures a judgment at law upon past-due instalments of the purchase money, and sells, under an execution issued on the judgment, all the vendee's right, title and interest, he can not, for instalments falling due after the execution, assert a vendor' ien and have the land again subjected to sale to pay e latter instalments.

Error to the Circuit Court of Ralls County. Broadhead, Slayback & Haeussler, for plaintiffs in error; W. M. Boulware, for defendant in error. NORTON, J., delivered the opinion of the court: This was a proceeding in equity to subject to sale certain lands for the payment of that portion of the purchase money which was due at the time the suit was brought.

The facts, as developed by the testimony, are as follows: On the 2d day of February, 1871, one Richard Wilton, by deed of general warranty, conveyed to the defendant, David S. Eby, the land described in plaintiff's petition, situated in Ralls County, Missouri. The consideration for this sale. as stated in the deed, was the sum of $15,000, to be paid as follows, as set forth in the deed:

Eby was to pay off and discharge at its maturity a promissory note for $5,000,executed by said Wilton to John B. Helm; and also to pay to Wilton $1,000 on the first day of March in each year from the date of said deed for a period of twenty years; and at the end of twenty years Eby was to pay to Wilton the further sum of $10,000. Or, upon the payment by Eby at any time during said term of twenty years of all said instalments due and unpaid, and the said sum of $10,000, he was to be discharged from any further indebtedness for said land. All of the above terms are recited and set forth in the conveyance from Wilton to Eby, which conveyance was filed for record in the recorder's office of Ralls County, Missouri, on the 20th of February, 1871. Under this deed Eby took possession of the land, and kept possession until the sale of the same to Fisher at sheriff's sale, as hereinafter mentioned. Eby paid the first instalment of $1,000.

On the 22d day of February, 1873, the said Wilton and the plaintiff herein entered into a written agreement, whereby said Wilton, for a valuable consideration in said agreement set forth, assigned, transferred and set over to the plaintiff all of his (Wilton's) right, title and interest in and to the debt above mentioned, and also his (Wilton's) vendor's lien on the land conveyed to Eby. On the 7th day of April, 1874, said Wilton and plaintiff entered into a written agreement where

by Wilton, for a valuable consideration, further assigned and transferred to plaintiff all his (Wilton's) right, title and interest in the debt due from Eby to Wilton in consideration of the land conveyed; and also said Wilton further assigned and tranferred to plaintiff, all his (Wilton's) right, title and interest in and to the vendor's lien on the land conveyed by him to Eby as aforesaid.

When Eby made default in the payment of the second and third instalments of. $1,000 each, plaintiff brought suit in the Hannibal Court of Common Pleas against Eby, and obtained two several judgments-one in September, 1873, for $1,000 and interest, and the other in December, 1874, for $1,000 and interest. These were both personal judgments against Eby; and on both these judgments executions were issued, directed to the sheriff of Ralls County, commanding him that of the goods and chattels and real estate of Eby, he cause to be made the damages and costs in the executions mentioned.

In obedience to the command of said executions, the sheriff of Ralls County did, on the 2d day of March, 1875, levy upon and seize all the right, title and interest, and claim of defendant Eby in and to real estate conveyed by said Wilton to defendant as above mentioned.

After advertisement according to law, the said sheriff of Ralls County, on the 26th day of March, 1875, while the Circuit Court of Ralls County was in session, did expose for sale to the highest bidder for cash, all the right, title and interest of defendant Eby in the land seized by said sheriff under said executions as aforesaid, being the same land conveyed by Wilton to defendant as aforesaid; and at said sale the defendant Fisher became the purchaser of all the right, title and interest, of said defendant Eby in said lands for the sum of $8,000.

That subsequently to the sale the sheriff executed a deed to defendant, Fisher, in which he acknowledges 'he receipt of $8,000, bid by Fisher. Out of the sum so paid the sheriff satisfied the execution and costs, leaving a remainder in his hands of $5,592.96.

Defendant Fisher entered into the possession of said lands so purchased, claiming the right to do so under said sheriff's sale. Defendant Eby made default in the payment of the fourth and fifth instalments of $1,000 each, and defendant Fisher refuses to pay said fourth and fifth instalments. The defendant, Fisher, is in possession of said land under and by virtue of his purchase at the sheriff's sale aforesaid.

In this state of the case, the plaintiff brought suit against Eby for the amount of the fourth and fifth instalments of $1,000 each, and praying that the real estate conveyed by Wilton to Eby be sold to pay the amount due, and for general relief. In this suit, John P. Fisher, who had bought the interest of Eby at sheriff's sale, was made a party defendant. Eby filed no answer and suffered deault. Fisher filed an answer, which was substanially a demurrer to the petition. He denies that

the assignment from Wilton to plaintiff vested plaintiff with any right to subject the land to sale for the non-payment of the purchase money. The court, upon the hearing, dismissed the plaintiff's petition. Plaintiff filed his motion for a rehearing, which was overruled, and the case is brought up to this court by writ of error.

Conceding, for the argument and purposes of this case, that the fact which appears on the face of the deed executed by Wilton to Eby, that the purchase money was not paid, was sufficient to give Wilton a vendor's lien for the purchase money on the land conveyed without any express reservation of such lien being made in the deed; and, conceding further, for the like purpose, that the debt of Eby, together with the vendor's lien, could be, and was, in fact, legally assigned to the plaintiff, Dickason. and that such assignment conferred upon the said assignee all the rights of the vendor; the only question remaining to be passed upon is, whether the plaintiff, after procuring his judgment at law upon two past-due instalments of the purchase money (there being other instalments not due), and after subjecting all of Eby s right, title and interest in the land by virtue of executions which issued upon said judgments, can, for instalments maturing after said execution sale, assert a vendor's lien and have the land again subjected to sale for the purpose of paying said instalments.

This precise question was before the court in the case of Outton v. Mitchell, 4 Bibb, 239, and it was answered in the negative, and we think correctly.

A vendor who has conveyed an absolute estate in land to his vendee, and has a vendor's lien thereon for unpaid purchase money, may resort either to a court of equity, and ask for the enforcement of his lien by a sale of the land to pay the debt, or he may procure his judgment at law for so much of the purchase money as remains unpaid, and subject the land to sale by execution. A sale of the land is the result, whether one or the other of these remedies is adopted; and if the vendor elects to adopt the latter remedy, and the land is sold, he must stand by his election; for it necessarily implies a waiver of his right to effect a sale by means of the other remedy. The vendor by his own act having brought about, and directed, a sale under execution of all the right, title and interest of his vendee, will be presumed to have waived the right he had to go into a court of equity and accomplish the same, by having a decree directing a sale of the land for the specific purpose of paying the purchase money, and will be estopped from asserting against a purchaser at such sale, a right to enforce a vendor's lien by a re-sale of the land. McArthur v. Porter, 1 Ham (Ohio), 99; Grubb v. Crane, 4 Scam. 153. What is here said must be understood as applying to cases like the one we are considering, where the vendor has conveyed to his vendee all the estate he had; and must not be confounded with that class of cases where the vendor retains the lega

title, and has simply given a title bond to convey, upon the purchase, the vendee taking nothing but an equity. To this latter class of cases may be referred the cases of Lewis v. Chapman, 59 Mo. 371; Broadwell v. Yantis, 10 Mo. 399; Lumley v. Robinson, 26 Mo. 364, to which we have been cited by counsel for plaintiff. In this class of cases, where the vendor sues at law and sells under his judgment all the right and interest of the vendee, the purchaser acquires at such sale only an equity, because that is all the vendee had; and the only right which the purchaser acquires is the right to pay whatever purchase money remains unpaid, and demand of the vendor a conveyance of the legal title according to the contract.

But in cases where the vendor has conveyed all his estate to the vendee without receiving the purchase-money, its non-payment does not give to the vendor an equitable title or estate in the land itself, but only the right by a proceeding in equity to charge the legal estate in the hands of the purchaser with its payment. Bispham's Eq., sec. 364, p. 424, and sec. 354. Such right of the vendor may be waived by taking an independent security, or by any act which clearly indicates that the vendor does not rely upon it. It is contended by counsel that, as the sheriff only sold and conveyed all the right, title and interest of Eby, the land itself was not sold and did not pass under the sheriff's deed. We think this argument unsound. The deed executed by the sheriff, which is in the usual form of such conveyances, conveying. as it did, all the right, title and interest of Eby to defendant, he took by virtue thereof all the estate which Eby had in the land, which, by the terms of the deed from Wilton to Eby was a fee-simple estate. In the case of Bogy v. Shoab, 13 Mo. 380, it was expressly held that a deed conveying all the right, title and interest of the grantor, will undoubtedly pass the land itself if the grantor has an estate therein at the time of the conveyance. The case of Garton v. White, 46 Mo. 480, to which counsel have cited us in support of the position taken, does not sustain it. In that case White had sold to Garton certain land, and gave a bond for title on payment of the purchase money. White instituted a proceeding in the circuit court to collect the note given for the purchase money, and to have the land sold to pay it. He obtained judgment for the balance due, with an order for a special execution against the property, directing the sheriff to sell the interest of Garton in the same; and, under this order, the interest of Garton was sold. Garton afterwards instituted his suit to enforce a specific performance of the contract, recited in the title bond, claiming that he had lost none of his rights by the said sale, for the reason that the judgment was not for a sale of the land, but only for his (Garton's) interest therein. The court held that, while the proper order would have been for the sale of the land, the order for the sale of Garton's interest in it was nevertheless effectual to pass to a purchaser at a sale made under it

Where deposits were made by the plaintiff's intestate, a clerk in the employ of a firm of shipping brokers, of moneys received in the ordinary course of business of such firm on account of vessels consigned to them, for freights collected, the deposits being made in the name of plaintiff's intestate on account of the financial embarrassments of said firm, for safe keeping and in order that they might be paid over to the parties to whom they actually belonged; and where such funds were applied by the bank, the defendant, in payment of a matured indebtedness to it by the firm, upon the claim that the money was really deposited for the benefit of the firm and became liable for their debt: Held, that the firm had no title to the moneys, and the defendants' demand was not the subject of set-off or recoupment against such moneys, they never having lost their original character,or been mingled with moneys of the firm.

Cecil Campbell Higgins, for appellant; George W. Parsons. for respondent.

MILLER, J., delivered the opinion of the court: The rule that a bank has a general lien upon all moneys or funds in its possession belonging to the depositor is a part of the law merchant and well established in commercial transactions. It rests upon the principle that, as the depositor is indebted to the bank upon a demand which is due, the funds in its possession may properly and justly be applied in payment of such debt, and it has, therefore, a right to retain such funds until payment is actually made.

The right to make an application of such funds also arises from the contract implied to exist from the relation of the parties and by operation of law. Mere possession. however, is not of itself sufficient to maintain the lien, but the debt to the bank must have matured, and then each may counterclaim, set-off or recoup, the same as any other debtors. The relation is one which is mutual, and can only exist where the demands are of the character indicated, and where each of the parties is a debtor to the other. Jordan v. National Shoe and Leather Bank, 74 N. Y. 472. The rule stated does not interfere with the right o

third parties, whose moneys have become mingled with those belonging to the depositor, to assert and maintain a claim to the same while in possession of the bank, and by an action to recover the amount thus deposited. Van Alen v. American Exchange Bank, 52 N. Y. 1. It must be made clear that the moneys deposited actually belong to the person from whom the account is due, to entitle the bank to apply them in payment of its demands. Conceding that the moneys are applicable, even although they are deposited by and in the name of another, the same as if in the name of an actual owner, the fact of ownership must be made to appear, and it must be shown satisfactorily that such owner is the person indebted to the bank and really entitled to the funds deposited. The claim of the defendant in this case is based upon the theory that the money was received by the Ruger Brothers, as shipping merchants or brokers, and was really deposited for their benefit and became liable for their debt which had matured to the bank.

The question then arises, whether the moneys deposited were the funds of the firm for the purposes of the set-off claimed by the defendant.

The testimony upon the trial established that the deposits made by the plaintiff's intestate were moneys received in the ordinary course of the business of Ruger Brothers, as agents and ship brokers, on account of vessels consigned to them, for freights collected, as well as moneys paid to meet certain liabilities of a firm of shippers. These moneys did not belong to Ruger Brothers, nor to the plaintiff's intestate, but to the captains of vessels and to other parties, and only a very inconsiderable percentage would be coming to Ruger Brothers for commissions. They were deposited in the name of the plaintiff's intestate, on account of the financial embarrassment of Ruger Brothers, for safe keeping; and in order that they might be paid over to the parties to whom they actually belonged. Upon this evidence the court upon the trial found that Ruger Brothers, in the course of their business, received various sums of money on account of captains of vessels, and on account of various freights of vessels consigned to them, and deposited such moneys in their bank account. That they became embarrassed in business, and in consequence thereof, and in order to keep the funds received by them from being attached by creditors, they caused an account to be opened by the plaintiff's intestate in defendants' bank, aud the moneys and checks received were deposited in said bank to the credit of the plaintiff's intestate. It thus appears that the moneys in question were not actually the property of Ruger Brothers, and they had no right or title to the same, and the defendants' demand was not the subject of set-off or recoupment against such moneys. They belonged to and were the property of the consignees and the persons for whom they had been collected and received, and were deposited solely for their benefit. The dealings of Ruger Brothers were of a confidential character,

and the moneys were received by them in trust and deposited on account of the cestuis que trust. Having knowledge of their own insolvency, Ruger Brothers were justified in protecting the funds of the parties in whose behalf they were acting as agents from being liable to be applied to the payment of their debts; and by depositing the moneys in the name of the plaintiff's intestate, they did not deprive the creditors for whose benefit the deposit was made of their right to the same, or appropriate them to the payment of the demand which the bank held against the firm. The rule that when moneys held in trust have been mingled with other moneys of the trustee, so as to be indistinguishable, that the cestui que trust can not claim a specific lien upon the property or funds, (Ferris v. Van Vechten 73 N. Y. 113), has no application when the money is held in trust to pay certain creditors, and can not be invoked to uphold the defendant's claim to the funds in question in the case at bar, as these moneys have never lost their original character, and have never been mingled with the moneys of Ruger Biothers, but, on the contrary, were especially deposited and set apart in the name of a third person for a specific purpose, and therefore can not be regarded in any respect as moneys of Ruger Brothers, by whom they were originally received; nor does it aid the defendant because it does not appear that any of the creditors of Ruger Brothers have made any claim for the same.

It is a sufficient answer to this objection to say that the creditors for whom they were set apart, were entitled to the moneys, and have the right to enforce their claim to the same by instituting an action for that purpose, or by compelling the plaintiff to pay over such sums as the intestate received and held in trust for their benefit. The right of such creditors is paramount and supreme over the claim of the defendant, as the moneys were expressly deposited for and were to be paid to them, according to their respective interests. It never belonged to Ruger Brothers, was not liable for their debts, and, not having been mingled with their funds, can not be claimed on any such ground.

Nor is it an answer to the position, that the plaintiff's intestate, in making the deposit, acted as the agent and trustee of the persons for whom the money was received, that the defendant never dealt with the plaintiff's intestate as trustee, or had any notice or knowledge that he claimed to act in that capacity. The deposit being in the plaintiff's intestate's name alone, and not for Ruger Brothers, he was under no obligation and owed no duty which required that he should notify the defendant that he held the funds in trust, or that other parties besides himself had an interest in the deposits. It could not affect the defendant's rights in any sense, because it had no notice, as it had no claim whatever, and no reason for relying upon a fund deposited in the name of another, for the payment of its debt against Ruger Brothers. In fact, from the deposit itself, the de

fendant had notice that the funds belonged to the depositor, and not to Ruger Brothers; and without proof that they actually belonged to Ruger Brothers, it had no right to appropriate or to claim these moneys for the payment of its demand. It is urged that the claims of the creditors were cut off by the discharge of Ruger Brothers in bankruptcy. If Ruger Brothers set apart these moneys for the benefit of those for whom they were received, they created an express trust in their behalf; and as the money belonged to them, a discharge in bankruptcy, while it might destroy their claim against Ruger Brothers, would not deprive them of the right to the fund which had been reserved and deposited in the name of the plaintiff's intestate on their behalf. In no contingency did the fund belong to Ruger Brothers, and the defendant had no right or title to it whatever, nor any claim to set off their demand against it.

Upon no other ground can the claim of the defendant be upheld; and after a careful examination, we are brought to the conclusion that the judge erred upon the trial in allowing the same. No exception was taken to the ruling of the judge upon the motion to dismiss the complaint, and, as the defendant does not appeal. it is not in a position to raise any question in regard to the decisions made against it.

Some other points are urged by the appellant's counsel, but the conclusion already reached renders their consideration unimportant.

For the error stated, the judgment should be reversed and a new trial granted, with costs to abide the event.

All concur except RAPALLO, J., absent.

PARTNERSHIP - MARSHALING ASSETS CREDITORS' RIGHTS.

DAVIS v. HOWELL.

New Jersey Court of Chancery, October Term, 1880.

On marshaling the assets of both partnership and individual estates, under separate assignments for the benefit of creditors, the partnership creditors are not entitled, after exhausting the partnership assets, to resort to the individual assets, until after the individual creditors' claims have been satisfied.

Bill for relief. On final hearing on bill and

answer.

J. F. Dumont, for complainant; G. M. Shipman and J. G. Shipman, for answering defendants.

THE CHANCELLOR.

John C. Bennett and James M. Andrews were, on or about the 10th of February, 1876, partners in business in Phillipsburg. On that day they made an assignment under the assignment act, for the equal benefit of their creditors, to the com

plainant, William M. Davis. Five days after the making of that assignment Andrews made an assigument, under the act, for the equal benefit of his creditors, to the complainant and Joseph Howell, and about the same time Bennett made a like assignment to Sylvester A. Comstock and Charles F. Fitch. The partnership estate will pay a dividend of only about eleven per cent. of the partnership debts. Most of the partnership creditors have put in their claims under the assignment of Andrews, and claim and insist upon a proportionate participation with his individual creditors therein as to so much of their claims as may not be paid out of the partnership estate. and they threaten the complainant and his coassignee of Andrews' estate with legal proceedings if their demand be not complied with. The complainant therefore comes into this court for protection and instructions as to his duty in the premises. His co-assignee, Howell, is a creditor of Andrews' estate, and he is made a defendant.

The question presented has been often discussed, and, though there exists some contrariety of judicial determination upon it, must be considered as settled by the great weight of authority. The rule is laid down in the textbooks that joint debts are entitled to priority of payment out of the joint estate, and separate debts out of separate estates. Story's Eq. Jur. § 675; Snell's Prin. of Eq. 419; Story on Part., § 376; Kent's Com., 64, 65; Parsons on Part., 480. And though the propriety of the rule has been often and persistently questioned, on the ground that it is a violation of principle, and devoid of equity, and was originally adopted from considerations of convenience only, and in bankruptcy cases, and not on principles of general equity, yet it is so firmly established that it must be regarded as a fixed rule of equity. Its history is so well known, and has been so often stated, that it is profitless to repeat it. It was declared in 1715, in Ex parte Crowder, 2 Vern. 706; it was affirmed by Lord Hardwicke, and though Lord Thurlow refused to follow it, it was restored by Lord Loughborough and followed by Lord Eldon, and it has existed ever since in the English chancery. It has an exception where there is no joint estate and no solvent partner. But where there is any joint estate, the rule is to be applied. That part of the rule which gives the joint creditors a preference upon the joint estate has been repeatedly recognized in this State. Cammack v. Johnson, 1 Gr. Ch. 163; Matlack v. James, 2 Beas. 126; Mittnight v. Smith, 2 C. E. Gr. 259; Scull v. Alter, 1 Harr. 147; Curtis v. Hollingshead, 2 Gr. 402; Brown v. Bissett, 1 Zab. 46; Linford v. Linford, 4 Dutch. 113. In Scull v. Alter, the Supreme Court recognized the rule in all its parts. Chief Justice Hornblower, by whom the opinion of the court was delivered (the question arose under an assignment under the assignment act, and was the same as is presented in this case), said: "But if it is an assignment not only of the partnership effects and property of the firm of Carhart &