least ninety days before the death of the testator, or such devise shall be void." Held, that this provision does not invalidate a charitable devise contained in a will executed within ninety days before the testator's death, unless he leaves a wife or child or descendants of a child. See upon the subject Reynolds v. Bristow, 37 Ga. 283; Wetter v. Habersham, 60 id. 193. Also taking another position. Harris v. Slaght, 46 Barb. 470; S. C. nom. Harris v. American Bible Society, 2 Abbott N. Y. App. 316; Lefevre v. Lefevre, 59 N. Y. 434; Price v. Maxwell, 28 Penn. St. 23; McLean v. Wade, 41 id. 266; Miller v. Porter, 53 id. 292; Rhymer's Appeal, 93 id. 142. But the statutes under which those cases were decided were quite different from that of Georgia. (3) The validity of a charitable devise as against the heir at law depends upon the law of the State where the land lies. The validity of a charitable bequest as against the next of kin depends upon the law of the State of the testator's domicile. Vidal v. Girard, 2 How. 127; Wheeler v. Smith, 9 id. 55; McDonogh v. Murdoch, 15 id. 367; Foutain v. Ravenel, 17 id. 369, 384, 394; Perin v. Carey, 24 id. 465; Lorings v. Marsh. 6 Wall. 337; United States v. Fox, 94 U. S. 315; Kain v. Gibboney, 101 id. 362. (4) The code of Georgia among charitable uses "the improvement or repairs of burying grounds or tombstones, Held, that a direction to the trustees under a will to keep in order the place of burial of testatrix was valid. In England, there has been a difference of opinion upon the question whether the maintenance and repair of the tomb or monument of the donor is a good, charitable use. Down to the time of the American revolution, as by the civil law, it appears to have been held that it was. 3 Inst. 202; Masters v. Masters, 1 P. Wms. 421, 423 and note; Durour v. Motteux, 1 Ves. Sen. 320; Gravenor v. Hallum, Ambl. 643; Boyle on Charities, 45-51; Justinian's Institutes, lib. 2, tit. 1, §§ 8, 9; Dig. 11, 7, 2, 5; 47. 12, 3, 2. According to the later English cases, it is not. Doe v. Pitcher, 3 M. & S. 407; S. C., 6 Taunt. 359; S. C., 2 Marsh. 61; Willis v. Brown, 2 Jur. 987; Hoare v. Osborne, L. R., 1 Eq. 585; Fiske v. Attorney-General, L. R. 4 Eq. 521; In re Birkett, 9 Ch. D. 576. See also Dexter v. Gardner, 7 Allen, 243, 247. (5) A devise to a society incorporated "for the relief of distressed widows and the schooling and maintaining of poor children," of buildings and land, to "use appropriate the rents and profits for the support of the school and charities of said institution, without said lot being at any time liable for the debts or contracts of said society," is a good charitable devise. A devise to a society incorporated "for the relief of indigent widows and orphans in the city of Savannah," of buildings and land, "the rents and profits to be appropriated to the benevolent purposes of said society," is a good charitable devise. It is only when a gift might be applied to benevolent purposes which are not charitable in that sense, that the gift fails. Saltonstall v. Sanders, 11 Allen, 446; Suter v. Hilliard, 132 Mass. 412; DeCamp v. Dobbins, 2 Stew. (N. J.) 36; Adye v. Smith, 44 Conn. 60; In re Jarman's Estate, 8 Ch. D. 584. (6) The rule against perpetuities does not apply to charities; and if a devise is made to one charity in the first instance, and then over, upon a contingency which may not take place within the limit of that rule, to another charity, the limitation over to the second charity is good. Christ's Hospital v. Grainger, 16 Sim. 84, 100; 1 Mach. & Gord. 460; 1 Hall & Twells, 533; McDonogh v. Murdoch, 15 How. 367, 412, 415. (7) Restrictions imposed by the charter of a corporation upon the amount of property that it may hold cannot be taken advantage of collaterally by private persons, but only in a direct proceeding by the State which created it. Runyan v. Coster, 14 Pet. 122, 131; Smith v. Sheeley, 12 Wall. 358, 361; Bogardus v. Trinity Church, 4 Sandf. Ch. 633, 758; De Camp v. Dobbins, 2 Stew. (N. J.) 36; Davis v. Old Colony Railroad Co., 131 Mass. 258, 273. (8) A devise to a historical society of a house containing a collection of books, documents and works of art, in trust to keep and preserve the same, with the collection therein, and other books and works of art to be purchased by the officers of the society out of the income of a fund bequeathed by the devisor for the purpose, “as a public edifice for a library and academy of arts and sciences," and "to be open for the use of the public" on such terms and under such reasonable regulations as the society may prescribe, is a good charitable devise, and is not invalidated by a requirement to place and keep over the entrance a marble slab with the name of the testator engraved thereon; and if the society is incapable of executing the trust, a court of equity, in the exercise of its ordinary jurisdiction, will effectuate it. British Museum v. White,2 Sim. & Stu. 594; Drury v. Natick, 10 Allen, 169; Donohugh's Appeal, 86 Penn. St. 306. The directions tending to perpetuate the memory of the founderdo not impair its public character or its legal validity. In the cases of Thompson v. Shakespeare, H. R. V. Johns. 612, and 1 D. F. & J. 399, and of Carne v. Long, 2 D. F. & J. 75, the gifts failed because not exclusively devoted to a public charitable use, the definition in the one case including purposes that might not be charitable, and the bequest in the other being to a private library established for the benefit of the subscribers alone. See Beaumont v. Oliveira, L. R., 4 Ch. 309, 314, 315. A corporation may hold and execute a trust for charitable objects in accord with or tending to promote the purposes of its creation, although such as it might not, by its charter or by general laws, have authority itself to establish or to spend its corporate funds for. A city for instance, may take a devise in trust to maintain a college, an orphan school, or an asylum. Vidal v. Girard, 2 How. 127; McDonogh v. Murdoch, 15 id. 367; Perin v. Carey, 24 id. 465. (9) A devise and bequest in trust for the building, endowment and maintenance of "a hospital for females within the city of Savannah, ou a permanent basis, into which sick and indigent females are to be admitted and cared for in such manner and on such terms as may be defined and prescribed by" certain directresses named and their associates, who are to obtain an act of incorporation for the purpose, is a valid charitable devise and bequest, although no time is limited for the erection of the building or the obtaining of the charter. Inglis v. Sailor's Snug Harbor, 3 Pet. 99; Ould v. Washington Hospital, 95 U. S. 303. (10) A bequest "to the first Christian church erected or to be erected in the village of Telfairville in Burke county, or to such persons as may become trustees of the same," is a good charitable bequest within the decisions of Lord Thurlow in Attorney-General v. Bishop of Chester, 1 Bro. Ch. 444, of Sir John Copley, Master of the Rolls, (afterward Lord Lyndhurst) in Society for Propagation of the Gospel v. Attorney-General, 3 Russ. 142, and of Lord Hatherley in Sinnett v. Herbert, L. R., 7 Ch. 232. See also Cumming v. Reid Memorial Church, 64 Georgia, 105. Decree of U. S. Circuit Court, S. D. Georgia, affirmed. Jones v. Habersham. Opinion by Gray, J. was in that condition that by reason of such vexation and annoyance a state of insanity was produced, which existed at the time of the execution and acknowledgment. (2) A party who induces the owner of land to convey the same in trust, by threatening to have a conservator of the grantor appointed, and instituting proceedings to have the grantor adjudged insane, and dismisses such proceeding upon the executing of such deed, will be estopped from afterward avoiding the deed on the ground its execution was procured by duress. Brower V. Callender. Opinion by Scholfield, J. DAMAGES RAILROAD CROSS EMINENT DOMAIN ING TRACK OF ANOTHER RAILROAD. — The law requiring railroad trains to stop before crossing another railroad, being a mere police regulation, and subject to repeal at any time, the damages sustained by a railroad company for the delay, inconvenience and trouble in stopping before crossing another road seeking a condemnation for right of way across the track of an existing railroad, are too vague, indefinite and contingent to be an element in the assessment of damages in favor of the road to be so crossed. Nor is the increased danger arising from the crossing of the track of one railroad by the trains of another, to be considered as an element of damage in such proceeding. To allow damages on such a claim would violate the rule that they cannot be allowed on mere conjecture, speculation, fancy or imagination. They must be real, tangible and proximate. Nor is this rule in conflict with what was said in Lake Sh. and Mich. So. R. Co. v. Chicago and West. Ind. R. Co., 100 111. 21, where it was held that only such injury and inconvenience as reduce the capacity of the corporation to transact its business, and necessarily result in damage and loss, are elements of damage. Direct and immediate damages alone are recoverable in this class of cases, and remote or merely incidental damages can not be considered. It is that injury which depreciates the value of the property, whether by taking a portion of it or rendering the portion left less useful, or in case of a railroad company or other corporate body, less capable of transacting its business, such a hindrance and inconvenience as to occasion loss, or diminish and limit its capacity to transact its business by decreasing the power to transact as much, or necessarily increasing the expense of what may be done, although not diminished; and this hindrance must produce immediate or future loss. If the new structure, when made, does not necessarily abridge the owner's capacity without increased expense to transact an equal volume of business, then, although there may be inconvenience and annoyance, unless the property is depreciated in value these are not elements of damages. Lake Shore & M. S. R. Co. v. Cincinnati S. & C. R. Co., 30 Ohio, 604; Boston, etc. R. Co. v. Old Colony R. Co., 3 Allen, 142; Old Colony R. Co. v. Plymouth Co., 14 Gray, 155; Massachusetts, etc., R. Co. v. Boston, etc., R. Co., 121 Mass. 124; Boston, etc., R. Co. v. Old Colony R. Co., 12 Cush. 605. Peoria & Pekin Union Railway Co. v. Peoria & Farmington Railway Co. Opinion by Walker, J. -- UNAU MUNICIPAL CORPORATION GRANT BY, UPON CONDITION SUBSEQUENT RAILWAY IN STREET THORIZED ACTS OF OFFICERS. (1) Where the act on which an estate or right depends does not necessarily precede the vesting of the estate or right, but may accompany or follow it, the condition is a condition subsequent, not a conditional limitation. The rule at law is, that if a condition subsequent is possible at the time of making it, and becomes afterward impossible, by the act of God, or the law, or the grantor, the estate having once vested is not thereby divested, but becomes absolute. It is said however that equity will not apply the principle to the extent of the last particular, to make the estate absolute. So where a city granted a license to a railway company to construct its road across the streets, upon an express condition that the tracks authorized should be constructed within one year from the time of the grant, and the company was prevented from completing its track within the year from injunctions. and also by the police officers of the city, acting under the direction of the mayor, it was held, the right of the company under the grant was not lost, and the city might be enjoined from interfering with the laying of the track after the expiration of the year, when it is apparent that the same would have been completed within the time limited, had it not been prevented by operation of law and the acts of city authorities. Nicoll v. New York and Erie R. Co., 2 Kern. 121; Brooklyn Central R. Co. v. Brooklyn City R. Co., 32 Barb. 366; Davis v. Gray, 16 Wall. 230; Hotham v. East India Company, 1 T. R. 645; Moakley v. Riggs, 19 Johns, 71; Fleming v. Gilbert, 3 id. 528; Mayor of New York v. Butler, 1 Barb. 337; Jones v. Walker, 13 B. Monroe, 165; Potter v. Dennison, 5 Gilm. 590; Risinger v. Cheney, 2 id. 90. (2) The unauthorized acts of municipal officers are regarded as the acts of the corporation, when they are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which this particular act relates. Thayer v. City of Boston, 19 Pick, 511; Buffalo and Hamburg T. Co. v. City of Buffalo, 58 N. Y. 639; Chicago v. McGraw, 75 Ill. 570. City of Chicago v. Chicago & Western Indiana Railroad Co. Opinion by Sheldon, J. MINNESOTA SUPREME COURT ABSTRACT. FEBRUARY, 1883. CARRIER LIABLE TO PERSON RIDING BY CONDUCTOR'S PERMISSION WITHOUT PAYING FARE ON A FREIGHT TRAIN FOR NEGLIGENCE. -A railroad company owes the duty of care in respect to its manner of operating the train,aud may be iiable to one riding on a freight train without paying fare, by permission of the conductor of the train, for injury from negligence in operating the train even though the conductor had no authority to permit such person to ride. The obligation of a common carrier to the exercise of care exists not alone when imposed by contract, and a recovery for injury to one being transported, caused by the negligence of the carrier, is not confined to cases of the breach of contract. Undoubtedly, in the ordinary carriage of passengers, there is a contract, express or implied, involving the obligation as a matter of contract to carry safely, and any negligence causing injury to the passenger is a breach of the contract and gives a right of action upon it. But the same act of negligence which would constitute a breach of contract obligations in the case of the passenger, may also be a breach of the duty imposed upon all passengers by the law, upon grounds of public policy, and give a right of action in tort to one injured thereby, if he be not barred of a recovery by his own wrong. It is not, therefore, important in this case that the plaintiff did not take passage as an ordinary passenger, or that he paid no fare (Jacobus v. St. Paul & C. Ry. Co., 20 Minn. 125) nor whether the plaintiff stood in the proper relation to the defendant of a passenger toward whom it owed the peculiar duty which grows out of such relation. Id.; Wilton v. Middlesex R. Co., 107 Mass. 108. Gradin v. St. Paul and Duluth Railway Co. Opinion by Dickson, J. MORTGAGE TITLE OF PURCHASER AT INVALID FORECLOSURE SALE, WHO TAKES POSSESSION. - The owner of land mortgaged the same. The mortgage The was not entitled to be recorded on account of defective attestation, nor was it entitled to be foreclosed. owner thereafter conveyed the land to F. who had actual notice of the mortgage and made allowance therefor in paying the consideration for the conveyance to him. The mortgage was in form recorded and afterward foreclosed. Under the foreclosure the land was purchased by one who conveyed to defendant and defendant went into possession of the land. Held, that while the foreclosure was abortive it might properly take effect as a transfer to defendant of the rights of the mortgagee. Defendant, by virtue of such transfer, occupied the position of a mortgagee in possession after condition broken,-one who took possession lawfully while the mortgage was in life and force, and whose mortgage has not been paid. Held, also that ejectment would not lie against defendant to recover possession of the land. Pace v. Chadderdon, 4 Minn. 499 (Gil. 390); Probst v. Brock, 10 Wall. 519; Jackson v. Minkler, 10 Johns. 380; Phyfe v. Riley, 15 Wend. 248. It is settled by a great weight of authority that an irregular sale (upon a mortgage) of real estate, whether judicial or in pais, and even though it be no bar of the right of redemption, or void as against the mortgagor or his heirs or assigns, passes to the purchaser the rights of the mortgagee as such, For this proposition, says the Supreme Court of the United States, per Strong, J., authority is hardly needed. Probst v. Brock, 10 Wall. 519; Gilbert v. Cooley, Walker. Ch. 499, approved in Hoffman v. Harrington, 33 Mich. 392); Frische v. Kramer's Lessee, 16 Ohio, 126; Stark v. Brown, 12 Wis. 572; Moore v. Card, 14 id. 214; Robinson v. Ryan, 25 N. Y. 320; Winslow v. In Clark, 47 id. 271; Freeman, Void Jud. Sales, § 50. New York, where an abortive foreclosure sale is held to have the effect to pass the mortgagee's interest in the mortgage, the doctrine of Hill v. Edwards will be found to prevail; also Purdy v. Huntington, 42 U. S. 334. The same state of things will be found in other jurisdictions. Johnson v. Sandhoff. Opinion by Berry, J. PROBATE LAW JURISDICTION COURT MAY NOT Where a RE-PROBATE WILL ONCE DULY PROBATED. probate court has properly entertained proceedings for the probate of a will and admitted the will to probate it has no authority to re-consider the question and re-probate the will-" The power to hear and determine a cause is jurisdiction. It is coram judice whenever a case is presented which brings the power into action. If the petitioner states such a case in his petition, that on a demurrer the court would render judgment in his favor, it is an undoubted case of jurisdiction." United States v. Arredendo, 6 Pet. 709. "If judicial tribunals proceed to act in cases to which their authority does not extend, their proceedings are merely and "If absolutely void." Eaton v. Badger, 33 N. H. 228. the subject-matter [of a proceeding] is necessarily beyond the authority of the tribunal, the defect will appear on the face of the proceedings, and they cannot be relied on as a defense or cause of action." 1Smith, Lead. Cas. (7th Amer. ed) 827. "The presumption in favor of the jurisdiction of superior courts necessarily ceases when the proceedings themselves negative the "No tribunal of exercise of jurisdiction." Id. 843. justice can possibly presume proceedings to be right, when, on the face of them, they are evidently wrong." Messenger v. Kintner, 4 Bin. 105; Lessee of Hickey v. Stewart, 3 How. 750. "If a court act without authorrity, its judgments and orders are regarded as nullities. They are not voidable, but simply void." Piersol, 1 Pet. 328; Ponce v. Underwood, 55 Ga. 601; Bradley v. Fisher, 13 Wall. 335; Bigelow v. Forest, 9 id. 339; Windsor v. McVeigh, 93 U. S. 282. denied that presumption is liberally indulged in support of the jurisdiction of a Superior Court of Elliot v. "It is not general powers; but even as to such a court, there is no place for presumption when the want of jurisdiction appears affirmatively on the face of its proceedings. In such case its judgments and decrees are of no greater force than those of inferior courts of limited jurisdiction acting beyond the scope of their powers." Wade v. Hancock (Virginia Court of Appeals), 14 Reporter (Boston), 672; In re Pierce, 44 Wis. 454; Erie Ry. Co. v. Ramsey, 45 N. Y. 637; White v. Spaulding, (Mich.) 14 N. W. Rep. 684. Matter of Mousseau. Opinion by Berry, J. WISCONSIN SUPREME COURT ABSTRACT. FEBRUARY 20, 1883. AGENCY DECLARATIONS OF AGENT AFTER TRANSACTION NOT ADMISSIBLE. - Evidence of the declaratious of an agent, made after the completion of a contract negotiated by him, is inadmissible to show the terms of such contract. See Hazleton v. Union Bank, 32 Wis. 34; Law v. Grant, 37 id. 548; Rounsavell v. Pease, 45 id. 506; Franklin Bank v. Stewart, 37 Me. 519. McIndoc v. Clark. Opinion by Taylor, J. BROKERAGE COMMISSIONS WHEN AGENT FOR VENDOR MAY RECOVER THOUGH ALSO ACTING FOR VENDEE.-An agent who is employed to sell lands at a fixed price, and who after finding a purchaser at that price, with the knowledge of the vendor acts as the agent of such purchaser in signing his name to the contract of sale, is entitled nevertheless to recover from the vendor the agreed commission on the sale. In Stewart v. Mather, 32 Wis. 344, Dixon, J., says: "A broker whose undertaking is merely to find a purchaser at a price fixed by the seller, or at a price which shall be satisfactory to the seller when he and the purchaser meet, is in reality only a 'middle-man,' whose duty is performed when the buyer and seller are brought together, and as to whom the policy of the Jaw which excludes double compensation has been considered inapplicable;" and cites Mullen v. Keitzleb, 7 Bush, 253; Kupp v. Sampson, 16 Gray, 398; and also Herman v. Martineau, 1 Wis. 151. The general principle and the exception are well established, both by reason and authority. When an agent is thus employed by one party to sell and by the other to purchase, and is vested with any discretion or judgment in the negotiation, his duties are in conflict, and in respect to adverse interests, and he cannot fairly serve both parties. In such case it is his duty to obtain the best possible price for the seller, and the lowest possible terms for the buyer. If the contract to employ and pay a compensation by either party is made with the knowledge and assent of the agent's employment by the other party in the same transaction, of course he cannot complain, and should be held to pay the compensation agreed upon; but when otherwise, it is a fraud upon the party, and he is exempt from liability to the agent. This adverse interest of the parties, and this conflicting and inconsistent duty of the agent, lie at the bottom of this principle, and the exception is founded upon the absence of this adverse interest of the parties, and upon the concurrence of the duty of the agent toward both parties alike; as where the price is fixed by the seller, and merely accepted by the purchaser through the procurement of the agent, or where no terms are fixed by the agent, and the agent acts as the mere middle-man to bring the parties together for a negotiation and contract to be made by themselves. Barry v. Schmidt. Opinion by Orton, J. LIMITATION -MUST BE PLEADED IN EJECTMENT.It is as necessary to plead the statute of limitations in an action of ejectment as it is in any other action, unless facts are stated in the complaint which show that the statute has run. At common law the statute of limitations had to be pleaded specially, and all the facts to make the statute applicable must be specially and particularly stated. So strict was this rule that in Peck v. Cheney, 4 Wis. 249, the plea in assumpsit of non assumpsit infra sex annos was held bad when it should have been non accruit infra sex annos. In Whitney v. Marshall, 17 Wis. 174, the auswer did not specifically claim the benefit of the statute of limitations of three years from the recording of the tax deed, but it set out such deed and the time of the recording, and was held sufficient because it set out the facts which made the statute applicable. In this case and in Orton v. Noonan, 25 Wis. 672, and in several other cases since, it was held that the rule as to pleading the statute in other cases is equally applicable to the action of ejectment, and that the statute must be specially pleaded. Tarbox v. Sup'rs, 34 Wis. 558; Mead v. Nelson, 52 id. 402. It is said in Morgan v. Bishop, 14 N. W. Rep. 369, a case similar to this: "Here the defendant does not even set up his tax deed, and of course, did not and could not plead the statute to protect it." See also Barden v. Sup'rs, 33 Wis.445; Lick v. Diaz, 30 Cal. 65; Hartson v. Hardin, 40 id. 264; Robinson v. Allen, 37 Iowa, 27; Davenport v. Short, 17 Minn. 24; Hutson v. Craighead, 28 Ohio St. 198. Paine v. Comstock. Opinion by Orton, J. the father's creditors. (2) Evidence of the statements of one of the two sons as to the partnership debt which is claimed to be the consideration of the alleged fraudulent conveyance, is competent against the other son. Hoboken Bank for Savings v. Beckman. Opinion by Runyon, Chancellor. MUNICIPAL CORPORATION MAY BE ENJOINED FROM DISCHARGING WATER ON PRIVATE LANDS.- A municipal corporation may be enjoined from discharging the water-drainage from the gutters of its streets on private lands, in such quantities as to impair the value and use of those lands. A land- owner has no right to cause, by means of artificial trenches or otherwise, the natural mode of discharge of surface-water from his land on that of his neighbor to be changed to the injury of the land of the latter, by conducting it by new channels in unusual quantities to or on a particular part or parts of the latter's land. Washb. Easem. 353; Ang. Wat. Cours. 108; Bellows v. Sackett, 15 Barb. 96; Foot v. Bronson, 4 Lans. 47. He has no right, for example, to build a house on his land and collect the rainfall in a gutter on it and discharge it by a spout on his neighbor's land. In Foot v. Bronson, where the defendants, to relieve their land from surface-water, deepened a ditch on the highway, and thus caused an increase and unnatural flow of water through the surface-drains of adjacent owners, to the injury of their land, it was held that a mandatory injunction should issue to compel the defendants to fill up the ditch to its former level, and to restrain them from lowering it again. Field v. Inhabitants of West Orange. Opinion by Runyon, Chancellor. WILL-EQUITY COURT WILL NOT TRY QUESTION OF EXECUTION, OR CAPACITY OR UNDUE INFLUENCE BEQUEST TO POOR MEMBERS OF CHURCH VALID.(1) On a bill filed by certain of the beneficiaries of a NEGLIGENCE -PREPONDERANCE OF EVIDENCE SUFFICIENT TO WARRANT VERDICT FOR PLAINTIFF.-In an action for injury from fire caused by defendants, negligence, held, that if from a preponderance of the evidence the jury were convinced that the fire and injury were traceable to such negligence on the part of the defendant, and that the plaintiff was free from contributory negligence, then the plaintiff was entitled to a verdict, notwithstanding the question was not free from reasonable doubt. The plaintiff was not bound to prove his case so clearly as to exclude the possibil-will, whose legacies were charged on land for its couity of any other theory. In civil cases tried by a jury the law does not require the jury to be convinced beyond all reasonable doubt, much less beyond any doubt, before they are authorized to find a verdict for a party. In such cases the jury must determine the issue upon the weight or preponderance of evidence. Blaeser v. M. M. Ins. Co., 37 Wis. 37, following Washington U. Ins. Co. v. Wilson, 7 id. 169, and Wright v. Hardy, 22 id. 334, where it was held that in civil actions the jury should find for the party in whose favor the evidence preponderates, although it be not free from reasonable doubt, or do not exclude the truth of any other theory." In such actions it is clearly unnecessary to satisfy the jury beyond a reasonable doubt. Kidd v. Fleek, 47 Wis. 444. This rule has been applied to actions of negligence like the present. Quaife v. Chicago & N. W. R. Co., 48 Wis. 520. Where the act charged is criminal in its nature, some courts have held that the rule in criminal cases is applicable. Welch v. Jugenheimer, 56 Iowa, 11. Whitney v. Clifford. Opinion by Cassoday, J. NEW JERSEY COURT OF CHANCERY OCTOBER TERM, 1882.* FRAUDULENT CONVEYANCE - CONSIDERATION - EVIDENCE.-(1) Where a father conveys all of his property to his two young sons, under suspicious circumstances as to the time, the method and the consideration thereof, the fact that the deed itself purports to have been given for a valuable consideration, and that the answers of the sons, under oath, aver that it was so given and was bona fide, will not sustain it as against *To appear in 9 Stewart (36 N. J. Eq.) Reports. struction, and for an accounting, after it has been admitted to probate by the the orphans court, all the legatees whose legacies were charged on the land being made parties, held, that neither the legality of the execution of the will, nor the capacity of the testatrix, nor the existence of undue influence, could be tried in this court, although issue may have been joined thereon. Story's Eq. Jur., §§ 184, 238, 1445; Allen v. McPherson, 1 H. of L. 191; Gould v. Gould, 3 Story, 516, 537; Quidort's Adm. v. Pergeaux, 3 C. E. Gr. 472, 477; Ryno's Ex. v. Ryno's Adm., 12 C. E. Gr. 522; Broderick's Will, 21 Wall. 503; Gaines v. Chew, 2 How. 619; Jones v. Frost, Jacob, 466; Jones v. Gregory, 2 De. G. J. & S. 83. (2) Held also, that a legacy to two churches, of $5,000 to each church, charged on testatrix's lands, "the interest to be strictly applied and distributed to the poor members of said churches forever, and nothing else," is a valid, charitable gift. In Magill v. Brown, Bright. 347, a gift for the poor members of the Friends Society was sustained. In Straus v. Goldsmid, 8 Sim. 614, one for ten worthy men to purchase meat and wine for the service of two nights of the passover, was held good; and in Witman v. Lex, 17 S. & R. 88, a gift of money "to be laid out in bread annually, for ten years, for the poor of the Lutheran congregation of which the donor was a member," was adjudged to be a valid charity. So also of a gift to twenty aged widows and spinsters of a parish. Thompson v. Corby, 27 Beav. 649; and a gift to poor relations. Brunsden v. Woolredge, Ambler, 507. So too of a gift to a masonic lodge; the court saying that a leading object of the society was supporting the poor members, their widows and orphans, and adding that the object was essentially perpetual. King v. Parker, 9 Cush. 71. It need not be said that one of the objects of a Christian church is to relieve the physical wants of the poor, and that the poor of the particular society are special objects of such charity to its members. Trustees of Methodist Church of South Camden v. Wilkenson. Opinion by Runyon, Chancellor. AGENCY-PURCHASE BY AGENT OF TRUST PROPERTY SOLD BY ORDER OF PRINCIPAL FORBIDDEN.-Where the relation of A. to B., is one of great trust and confidence, A.'s conduct will be regulated by a law of jealousy. He will not be permitted to keep any thing obtained from B. under the guise of a contract, unless his title is entrenched in the utmost good faith. It must have been acquired openly, and on a full and frank disclosure of every fact likely to influence B.'s conduct; and the conduct of A. must be shown to be just and honest in every particular. The general interests of justice, and the safety of those who are compelled to repose confidence in others, demand that the courts shall inflexibly maintain the rule declaring that an agent employed to sell cannot make himself the purchaser, nor if employed to buy, can he himself be the seller. The moment an agent ceases to be the representative solely of his employer, and places himself in a position toward his principal where their interests may conflict, no matter how fair his conduct may be in the particular transaction, he ceases to be that which his service requires and his duty to his principal demands. In such cases the courts do not stop to inquire whether the agent has obtained an advantage, or whether his conduct is fraudulent or not, but if the fact is established that he has attempted to assume two distinct and opposite characters in the same transaction, the courts will not speculate concerning the merits of the transaction, but at once pronounce it void as against public policy. The reason of the rule is, that owing to the selfishness and greed of human nature, there must, in the great mass of transactions, be a strong antagonism between the interests of the seller and buyer, and universal experience shows that the average man, when his interests conflict with his employer's, will not look upon his employer's interests as more important or entitled to more protection than his own. The object of the principle is to elevate the agent to a position where he cannot be tempted to betray his trust. To guard against uncertainty, all possible temptation is removed, and the prohibition against the agent acting in a dual capacity is made broad enough to cover all his transactions. The rights of a principal will not be changed, nor the capacity of the agent enlarged, by the fact that the agent is not invested with a discretion, but simply acts under authority to purchase or sell a particular article at a specified price. Benson v. Heathom, 1 You. & Col. 326; Conkey v. Bond, 34 Barb. 276; S. C., 36 N. Y. 427; Ex parte Lacey, 6 Ves. 625; Brookman v. Rothschild, 3 Sim. 153; Rothschild v. Brookman, 2 Dow & Clark, 188; Gillett v. Peppercorne, 3 Beav. 78; Moore v. Moore, 5 N. Y. 256; New York Central Ins. Co. v. National Protection Ins. Co., 14 id. 85. Porter v. Woodruff. Opinion by Van Fleet, Vice-Chan. DEED PRESUMPTION AS TO TIME OF DELIVERY.— In the absence of proof to the contrary, the presumption is that a deed for lands was delivered on the day when the grantee took possession of the premises. Halsey v. Ball. Opinion by Runyon, Chancellor. MARRIAGE OF WOMAN DOES NOT REVOKE WILL.— The marriage of a woman does not in New Jersey revoke her will executed before such marriage. A widow made her will disposing of her property. She afterward entered into a marriage settlement, whereby she assigned a very large part of her property (it was all personal) and the income thereof, and of all her other property, to trustees in trust for herself for life, and after her death to distribute the property assigned to certain persons whom she named, and who, with a few exceptions, were the same persons who were named as legatees in the will, reserving to herself, with the express assent of her future husband, a testamentary power of disposition over her estate, which was by the settlement put into the hands of her trustees. She was married, and died without any further execution of the power. Held, that her will was not revoked by her marriage, and was a good execution of the power. See Logan v. Bell, 1 C. B. 872; Ryno v. Ryno, 12 C. E. Gr. 522; Douglass v. Cooper, 3 M. & K. 378. Webb v. Jones. Opinion by Runyon, Chancellor. TRUST-POWER TO MORTGAGE INCLUDED IN POWER TO SELL.-A power to mortgage is sometimes implied in a power to sell. Where power of sale is given to raise a particular charge only, and the purpose can be answered better by mortgage than by sale, and that method is not violative of the intention of the grantor of the power, the former mode of raising the money should be preferred to the latter. Cooke v. Farrand, 7 Taunt, 122; Rendelsham v. Mewe, 14 Sim. 249. The cases of Stroughill v. Anstey, 1 De G. M. & G. 635; Page v. Cooper, 16 Beav. 396, and Ball v. Harris, 4 M. & Cr. 264, are authorities on this point. Where power of sale is given to raise a particular charge only, and the purpose can be answered better by mortgage than by sale, and that method is not violative of the intention of the grantor of the power, the former mode of raising the money should be preferred to the latter, for the obvious and sufficient reason that it is for the advantage of the estate that it should be adopted, and it is within the limits.of the power intended to be conferred. It would be absurd, to say the least of it, to adhere so closely to the literal terms of the grant of power as to necessitate a sacrifice of the property, when by a reasonable construction that result could be avoided. Lord Langdale, M. R., in Haldenby v. Spofforth, 1 Beav. 390, in commenting on Lord Macclesfield's remark in Mills v. Banks, 3 P. Wms. 1, that a power to sell implies a power to mortgage, which is a conditional sale," says he conceives this to mean that where it is intended to preserve the estate there under a direction of sale, a mortgage will sufficiently answer the purpose. Loebenthal v. Raleigh. Opinion by Runyon, Chancellor. · CORRESPONDENCE. THAT "LEGAL PARADOX.” In the legal paradox propounded in your last issue, ALBANY, April 3, 1883. WM. H. HALE. |