any just inference made any contract that the bonds and coupons should not be subject to the same taxes as other property taxed by the State.

MENTAL ANXIETY NOT ELEMENT OF DAMAGE IN ACTION FOR NEGLIGENT INJURY TO PROPERTY.

SUPREME JUDICIAL COURT OF MAINE, MAY 31, 1880.

WYMAN V. LEAVITT.

In the trial of an action on the case for simple negligence in blasting out a ledge within the located limits of a railroad whereby rocks were thrown upon the plaintiff's land and buildings, the plaintiff's mental anxiety in relation to his own personal safety is not, in the absence of personal injury, an element of damage.

Nor is his anxiety in relation to the personal safety of his child while going to and returning from school.

ON exceptions and motion to set aside the verdict.

The facts sufficiently appear in the opinion.

Baker & Baker, for the plaintiffs.

A. P. Gould and J. E. Moore, for defendant. VIRGIN, J. These are actions on the case against a sub-contractor to recover damages caused by his alleged negligence in blasting out a ledge within the located limits of a railroad, whereby rocks were thrown upon the plaintiffs' adjoining lands and buildings, and for not removing, within a reasonable time thereafter, rocks thus lodged on their respective premises.

The cases were tried together. At the trial, Mrs. Wyman's counsel asked her, when upon the stand as a witness, to "give the jury some idea of her anxiety in relation to the blasting of the ledge while she was in and about the house-in relation to herself and family." The question was seasonably objected to by the defendant, but the witness was allowed to answer as follows: "At first, I was not much frightened; then after the second Jordan* began the heavy blasting, I used to watch my little boy when he went to school and came." This answer was objected to and admitted. After giving a detailed statement of the warnings of the blastings, she further testified in answer to the above general question: "I felt afraid the rocks would hit him." * * *. I was afraid." (Objected to; admitted.) "I was in fear from the time the second Jordan began to blow those heavy blasts until they got through." This was also objected to.

The jury were required to find specially, among other things, how much damages they assessed in each action, "for negligence in blasting, including as well the mental anxiety, as the other sources of damages." The jury answered these questions; and in the case of Mrs. Wyman, they found the sum of $264.

There is no evidence in the case of any injury to the persons of either party or to their child; or of any wanton conduct on the part of the defendant or of his servants. Was the testimony objected to and admitted in relation to Mrs. Wyman's fear of her own or of her child's safety, legally admissible?

As a general proposition, damages are recoverable when they are the natural and reasonable result of the defendant's unlawful act-that is when they are such a consequence as in the ordinary course of things would flow from such an act. This is the broad rule, covering all the elements of damages, some of which do not enter into every case. The rule though correct as a general abstract statement has its limitations in particular cases. It may include insult and contumely, but they do not exist in every case of personal injury. Personal injury usually consists in pain inflicted both

* Perhaps some one will kindly inform us what a "Jordan" is.- ED. ALB. L. J

bodily and mental. When bodily pain is caused, mental follows as a necessary consequence, especially when the former is so severe as to create apprehension and anxiety. And not only the suffering experienced before the trial, but such as is reasonably certain to continue afterward, as the result of the injury, rightfully enters into the assessment of damages.

In trespass for assault and battery, the jury may consider not only the mental suffering which accompanies and is a part of the bodily pain, but that other mental condition of the injured person which arises from the insult of the defendant's blows. Prentiss v. Shaw, 56 Me. 427; Wadsworth v. Treat, 43 id. 163. Or for an assault alone, when maliciously done, though no actual personal injury be inflicted. Goddard v. Grand T. Ry., 57 Me. 202; Beach v. Hancock, 27 N. H. 223; 2 Greene's Cr. Rep. 269. So in various other torts to property alone when the tort-feasor is actuated by wantonness or malice, or a willful disregard of others' rights therein, injury to the feelings of the plaintiff, resulting from such conduct of the defendant, may properly be considered by the jury in fixing the amount of their verdict.

But we have been unable to find any decided case which holds that mental suffering alone, unattended by any injury to the person, caused by simple actionable negligence, can sustain an action. And the fact that no such case exists, and that no elementary writer asserts such a doctrine, is a strong argument against it. On the contrary it has been held that a verdict, founded upon fright and mental suffering, caused by risk and peril, would, in the absence of personal injury, be contrary to law. Canning v. Williamstown, 1 Cush. 451. So it is said (in Lynch v. Knight, 9 H. L. 577, 598) that "mental pain and anxiety the law cannot value, and does not pretend to redress when the unlawful act complained of causes that alone." Again, in Johnson v. Wells, 6 Nev. 224 (3 Am. Rep. 245), after a very elaborate examination, it was held that pain of mind, aside and distinct from bodily suffering, cannot be considered in estimating damages in an action against a common carrier of passengers. If the law were otherwise, it would seem that not only every passenger on a train that was personally injured, but every one that was frightened by a collision or by the train's leaving the track, could maintain an action against the company. See an elaborate note by Mr. Wood in his edition of Mayne on Dam. 70 et seq. We are of the opinion, therefore, that Mrs. Wyman's testimony relating to her fears as to her own personal safety was erroneously admitted. Whether a fright of sufficient severity to cause a physical disease would support an action, we need not now inquire.

We also think that her testimony, relating to her anxiety about her child's safety, was inadmissible. If the child had suffered an injury in his own person, the redress would have had no necessary connection with the family relation; for the injury which one suffers in the relation of parent is mited, in the absence of any statutory provision, to the deprivation of the child's services. 2 Kent Com. 195; Fort v. Union Pac. R. R. Co., 17 Wall. 553. And when the injury is to the person of the child, and the father thereby loses the services of the child, the father may maintain an action for the latter wrong, and the child for the former. Cooley on Torts, 229. But generally a father can recover no damages for injury to his parental feelings. Flemington v. Smithers, 2 Car. & P. 292; Black v. Carrolton, 10 L. Ann. 33; Shearm. & Redf. on Neg. (2d ed.), § 608, a. This rule, like most others, has its exceptions, among which are seduction (2 Greenl. Ev., § 579; Phillips v. Hoyle, 4 Gray, 568); forcible abduction of a child (Stowe v. Heywood, 7 Allen, 118), in both of which, though based upon the predicate of a loss of service, parental feelings may be considered by the jury; and trespass quare clausum

for disinterring and removing in a willful disregard of the father's rights, the remains of the deceased child. Meagher v. Driscoll, 99 Mass. 281. But we fail to perceive upon what principle of law the mother or father could recover for parental feelings in an action like the one at bar.

As to the action of Mr. Wyman, the jury found specially, as in his wife's case, a certain sum of mental anxiety, though less in amount, although there was no testimony upon that point coming from him. The two cases were properly tried together, and the wife must necessarily have had more or less influence upon the other, and cannot well be now separated. We therefore think exceptions should be sustained in both cases. Exceptions sustained.

NEW YORK COURT OF APPEALS ABSTRACT.

CONSTITUTIONAL LAW EFFECT OF JUDGE SITTING IN REVIEW OF OWN DECISION IS TO GIVE NEW TRIAL.

Plaintiff had a claim against an estate, which, after presentation, was disputed by the executor, the defendant herein. It was heard before a referee, who reported in favor of defendant, wholly disallowing the claim. A motion was made by defendant, before Justice Brady, for the confirmation of the report, and one by plaintiff to set it aside. The first motion was granted and the last denied. After judgment was entered appeal was taken to the General Term, where the judgment and order was affirmed. Justice Brady was a member of the appellate court, and joined in the decision. Held, that his action at the General Term was in violation of article 6, section 8 of the Constitution, which provides that "no judge or justice shall sit," etc., "in review of a decision made by him," etc., the court of review was not properly constituted, and was not authorized to hear the appeal, and therefore its judgment must be reversed, irrespective of the question whether its determination was right or wrong. Pistor v. Hatfield, 46 N. Y. 250; Real v. People, 42 id. 276. Judgment reversed and new trial granted. Duryea v. Traphagen. Opinion by Finch, J.

[Decided March 1, 1881.]

JURISDICTION - INJUNCTION IN FAVOR OF FOREIGN CORPORATION - THE COURT WILL ONLY EXAMINE GROUND OF DECISION OF COURT BELOW. (1) The Supreme Court of this State has jurisdiction to hear and determine an application for injunction by a foreign corporation, where individual defendants are residents of this State. (2) Where the ground of denying the injunction is that the court has no jurisdiction, this court will not determine whether a case is pre sented upon which the court below should grant an injunction. That is to be determined by the court below. This court can only look into the order to ascertain the ground on which the court below proceeded. Hewlett v. Wood, 67 N. Y. 394. Order reversed and case remitted. Direct United States Cable Co. v. Dominion Telegraph Co. Opinion by the Court. [Decided Feb. 11, 1881.]

MASTER AND SERVANT-FELLOW-SERVANT-YARDMASTER ON RAILROAD AND TRAIN COUPLER.

A yard

master employed by defendant, a railroad company, was charged with the duty of making up the trains and distributing the cars in and about the yard and the repair shops of the defendant, and plaintiff's intestate was employed by him to assist in that service. As a necessary consequence, broken and disabled cars had to be handled and moved to the repair shops. While intestate was engaged in attaching a broken car to one in front, with the aid of a chain, and by direction of the yard-master, the latter negligently and at the wrong moment signalled the engineer to back the train, and as a consequence the intestate was caught

and crushed between the cars. Held, that the yardmaster was a fellow-servant of the intestate, as to all acts done within range of the common employment, except such as were done in the performance of some duty owed by the master to the servants. The negligence which caused the injury was not that of the master. In moving the train the yard-master was acting not as the agent of defendant in the performance of its duties, for it was not its duty to effect the coupling of the cars and their movement to the repair shop. What he was doing was the work of a servant in the department of labor assigned to him as such. See Crispen v. Babbitt, 81 N. Y. Judgment reversed and new trial granted. McCosker v. Long Island Railroad Co. Opinion by Finch, J. [Decided Feb. 8, 1881.]

MORTGAGE-ASSUMPTION OF BY GRANTEE TAKING DEED AS SECURITY EVIDENCE - PRIVILEGE-COMMUNICATION TO ATTORNEY WHERE NO LITIGATION.—

(1) Where a deed was given as security merely, a covenaut by the grantee to assume and pay a mortgage owned by a third party, held to be an agreement between the grantor and grantee that the latter should advance the amount of the prior lien upon the security of the land, and to give no right of action to the owner of the mortgage against the grantee, to hold him for a deficiency upon a foreclosure sale of the land. Garnsey v. Rogers, 47 N. Y. 241. (2) F., the owner of land on which plaintiff held a mortgage, C., who held a junior mortgage, and W., a creditor of F., made an arrangement whereby W. agreed to pay the junior mortgage, and solely to secure W. therefor and for his debt, it was agreed that F. should convey the premises to him by absolute deed. The three parties went to the office of an attorney to have the necessary papers drawn, and consulted him professionally for that purpose. Upon his advice the agreement was changed. In an action to foreclose the prior mortgage, in which W. was made a party, held, that the attorney could not testify in behalf of plaintiff to the communications made to him or the agreement of the parties at the time the deed was made to W. The rule that an attorney cannot disclose communications is not confined to those made in contemplation of or in the progress of an action or judicial proceeding, but extends to communications in reference to all matters which are the proper subject of professional employment. Williams v. Fitch, 18 N. Y. 550; Yates v. Olmstead, 56 id. 632. The rule exists notwithstanding a party may be examined as a witness, and the principle excludes such a communication in a controversy between the parties making it and a third person. See Rice v. Rice, 1 B. Monr. 417; Robson v. Kemp, 4 Esp. 235, and 5 id. 52; Strode v. Seaton, 2 Ad. & El. 171: Britton v. Lorenz, 45 N. Y. 51; Whiting v. Barney, 30 id. 342; S. C., 38 Barb. 397. Judgment reversed and new trial ordered. Root v. Wright. Opinion by Andrews, J. [Decided Feb. 8, 1881.]

NEGLIGENCE —CONTRIBUTORY — WANT OF, MUST BE ESTABLISHED AFFIRMATIVELY.-In an action for the death of plaintiff's intestate in falling into a tank of defendant's it appeared that his duties called him to pass over a passage-way from which he fell; that it was easy to pass without harm where he went; that for four years men had passed there, one of them a hundred times of a night without accident; that intestate had been to and fro over the same way more or less for two days before the accident, five times shortly before it; that a fellow-servant went over safely just ahead of him; that the way was well lighted and there was no obstruction or impediment save a gutter which had blocks to aid over it; and that he had been especially charged to be careful and not to fall in the tank. Held, that there was no evidence of want of contributory negligence on the part of the intestate. To show

that it was possible for the fall to have happened without negligence is not to give ground that it thus happened. The rule that either by direct proof or from circumstances attending the injury, the jury must be authorized to find affirmatively that the person injured was free from fault helping to the mischance, or the action cannot be maintained, must be applied. Reynolds v. New York Cent. R. Co., 58 N. Y. 248. Judgment reversed and new trial ordered. Riceman v. Havemeyer. Opinion by Folger, C. J. [Decided Feb. 8, 1881.]

PRACTICE

-ACTION AT LAW UPON MORTGAGE AFTER FORECLOSURE BEGAN LEAVE MAY BE GIVEN BY OR

DER NUNC PRO TUNC - BAR TO ACTION.-(1) An action upon defendant's guaranty of the payment of a mortgage was brought after judgment of foreclosure and sale had been rendered in an action to foreclose the mortgage. Held, that under 2 R. S. 191, §§ 153, 154, it was necessary that such action should be authorized by the court, and that in the absence of such authority the action could not be maintained. Scofield v. Doscher, 72 N. Y. 491. But the court by an order nunc pro tunc after the action was commenced could remove the impediment to its maintenance. The statute was passed to prevent vexatious and oppressive litigation, and after proceedings to foreclose had been commenced leave might be refused on the discretion of the court. When leave is given the cause of action is the contract or obligation of the party; the leave given by the court simply removes an obstruction. Want of leave may be pleaded by a plea in the nature of abatement. If plaintiff is defeated for that cause he may obtain leave and commence suit anew for the same cause of action. There is no reason why the court may not grant leave by a retrospective order to take effect before the commencement of the suit. Defendant thereby is deprived of no substantial defense. (2) A cause of action upon the guaranty of the payment of a mortgage, held not barred by a judgment of foreclosure of the mortgage. Order affirmed. Kernan v. Frazer. Opinion by Andrews, J. [Decided Feb. 8, 1881.]

Mc

SAVINGS BANK ADMINISTRATOR OF TRUSTEE DE

POSITING MONEY MAY CLAIM PAYMENT IN ABSENCE OF

NOTICE FROM BENEFICIARY.-S., as trustee for C., deposited money in the defendant savings bank which gave a pass-book to S. The bank did not know the nature of the trust. One of the terms of the deposit agreed upon at the time was that "the pass-book shall be the voucher of the depositor and evidence of his property in the institution, and the presentation of the pass-book shall be sufficient authority to the bank to make any payment to the bearer thereof; that the officers of the bank will endeavor to prevent fraud upon its depositors, but all payments to persons producing the pass-books issued by the bank shall be valid payments to discharge the bank." S. thereafter died, the deposit not being drawn. Held, that a payment by the bank to the administrator of S. upon the production of his letters and of the pass-book, and in the absence of any notice from C., the beneficiary, was a good payment and effectual to discharge the bank. If the trustee in his life-time had presented the book and demanded payment, no claim by the beneficiary having been interposed, the bank would have been bound to pay. Upon the death of the trustee his rights devolved upon his administrator. Banks v. Executors of Wilkes, 3 Sandf. Ch. 99; Bucklin v. Bucklin, 1 Abb. Ct. App. 242; Bunn v. Vaughn, id. 253; Emerson v. Blakely, 2 id. 22; Trecothick v. Austin, 4 Mason, 16, 29. The bank had no right to inquire into the character of the trust, and owed no duty to the beneficiary until the latter by notice forbid payment or demanded it for himself. It is true that payment to one presenting a pass-book is not always a discharge to the bank, and if

paid to one who is not the depositor or his legal representative, the bank, if it has agreed to use its best endeavors to prevent fraud, must exercise diligence, and is put on inquiry by circumstances of suspicion (Allen v. Williamsburgh Savings Bank, 69 N. Y. 317), but this rule applies only to prevent payment to the wrong person, to one not entitled to recover the deposit. If the right person applies and payment is made to him the question of diligence or negligence cannot arise. It does not affect the right of the administrator to call the trust an executed one. If the beneficiary has a right to the pass-book and the fund, he must reach it through the trustee. Payment to the trustee is good, what remains is between him and the beneficiary. Judgment reversed. Boone v. Citizens' Savings Bank of New York. Opinion by Finch, J. [Decided Feb. 8, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-STATE STATUTE OF LIMITATION-CONSTRUCTION-TAX DEED. - The statute of Iowa in reference to tax titles provides "No action for the recovery of real property sold for the non-payment of taxes shall lie, unless the same be brought within five years after the treasurer's deed is executed and recorded" as provided by the Iowa statute. In an action in an Iowa court for the recovery of real property, brought by a purchaser at a tax sale and the former owner in possession, this statute of limitation was set up. The court held that the defense could be set up here, and that the limitation began to run at the time of the execution and recording of the tax deed, irrespective of the question of adverse possession, so that if at any time during the period of five years, no matter how near its close, the former owner takes actual possession and holds until the expiration of the five years from the date of the execution and recording of the tax deed, the right of the purchaser at the tax salo is completely barred. Held, that the first point was settled by the decision of the Iowa courts, and that the construction given to the limitation was not in conflict with the Federal Constitution either as depriving the purchaser at tax sale of his property without due process of law, or as impairing a contract. The Supreme Court of Iowa has by several decisions construed the five years' statute of limitations to apply to an action brought by one claiming under a tax deed as well as to one brought by the original owner of the land. Brown v. Painter, 38 Iowa, 456; Laverty v. Sexton, 41 id. 435; Barrett v. Love, 48 id. 103. By these decisions the Supreme Court of the State has established a rule of property in the State of Iowa which is binding on this and other courts of the United States. Jackson v. Chew, 12 Wheat. 162; Suydam v. Williamson, 24 How. 427; Beauregard v. New Orleans, 18 id. 497; Nichols v. Levy, 5 Wall. 433; Williams v. Kirtland, 13 id. 306. The purchaser at a tax sale is not deprived of any of the rights conferred on him by his purchase and deed, by reason of the construction put upon the five years' statute of limitation. The right of the Legislature to prescribe what shall be the effect of a tax sale and deed cannot be questioned. It might have declared that the title of the purchaser at the tax sale should be divested without his consent by the repayment to him within a prescribed period by the former owner of the amount of his bid, or the tax and the interest and penalty thereon. The right to redeem the title of lands sold for taxes is one commonly reserved, and the right is favored by the policy of the law. Dubois v. Hepburn, 10 Pet. 1; Corbett v. Nutt, 10 Wall. 464; Gault's Appeal, 33 Penn. St. 94; Rice v. Nelson, 27 Iowa, 148; Schenck v. Peay, 1 Dill. 267; Masterson v. Beasley, 3 Ohio, 301; Jones v. Collins, 16

Wis. 594; Curtis v. Whitney, 13 Wall. 68. But it would scarcely be contended that such statute deprived the purchaser of his property without due process of law or impaired the obligation of his contract of purchase. Judgment of Supreme Court of Iowa affirmed. Barrett v. Holmes. Opinion by Woods, J. [Decided Jan. 31, 1881.]

A

MUNICIPAL BONDS-ISSUED WITHOUT AUTHORITY OF LAW VOID IN INNOCENT HOLDER'S HANDS. charter granted by the Legislature of Missouri to the S. Railroad Company in 1860, provided that upon petition by the company the county court of any county through which the road should pass might authorize a vote to be taken by the inhabitants of a strip of country not more than ten miles each side of the road to take stock in the company and to raise a tax therefor which should be levied and collected by the county court. By the Constitution of Missouri adopted in 1865, the Legislature was forbidden to authorize any county, city or town to become a stockholder in any corporation unless two-thirds of the voters should assent thereto. By a statute passed in 1868, townships were authorized to subscribe through the county court to railroad companies by a two-third vote, and bonds were to be issued by the county to pay such subscriptions chargeable on the voting town. By a statute amending this, passed in 1870, the taxable inhabitants of portions of townships were granted the same rights as towns as to subscribing for stock and issuing of bonds in cases where the charter of any railroad company authorized such portions to subscribe to stock. In 1870, after the passage of the last-named act, upon the petition of the S. Railroad Company, the county court of D. county, through which the railroad passed, authorized the taxable inhabitants of a strip of five miles on each side of the road through the county to vote upon the question of taking stock in such road and the issue of bonds therefor. At the election there

were 568 votes for the subscription, etc., and 400 against it. Thereafter the county court issued county bonds which recited that they were issued upon the vote of certain taxable inhabitants of the county and were in aid of the S. railroad, and which were payable to bearer. Held, that the issue of the bonds was unauthorized, and that they were void in the hands of an innocent holder for value. Judgment of U. S. Circ. Ct., W. D. Missouri affirmed. Ogden v. County of Daviess. Opinion by Waite, C. J.

[Decided Jan. 24, 1881.]

STATUTORY CONSTRUCTION - EVIDENCE — - DISTRICT OF COLUMBIA -INSURANCE ASSIGNMENT OF POLICY TO SECURE DEBT — RIGHTS OF CREDITOR. - (1) The act of Congress relating to the admission of parties to testify in the courts of the United States (Act of July 2, 1864, § 3; amended Act March 3, 1865, U. S. R. S., § 558) applies to the courts of the District of Columbia, and the provisions of that act that no party to an action by or against a personal representative can testify against his adversary as to any transaction with or statement by the deceased, unless called to testify thereto by the opposite party or required to testify thereto by the court, governs as to the admission of the testimony of such a party. If not before that time, from and after the passage of the act of February 21, 1871, which declared that "all laws of the United States which are not locally inapplicable shall have the same force in the District of Columbia as elsewhere in the United States," the provision in question became a part of the law of evidence in the District. Bradley, J., dissented from this holding. (2) B. lent to P. a sum of money, to secure which P. assigned to B. an interest in a policy of life insurance. Subsequent assignments were made to the same effect, until in 1873 one was executed which imported an absolute transfer to B. of all the right, title and interest of the assured in the

policy, and to the payments previously made thereon, as well as all benefit and advantage to be derived therefrom. Held, that the last assignment would be construed as simply appointing B., upon the death of the assured, to receive from the company such sum as would then be due on the policy, and after reimbursing himself to the extent of his loans to P., to pay the balance to the person entitled thereto. A different construction of that instrument would place B. in the position of being pecuniarily interested in the death of P. Unless compelled to do so the court would not suppose that he had any desire or purpose to speculate upon the life of P., or to do more than secure the repayment of the money actually loaned by him to the assured. Decree of Supreme Court of District of Columbia reversed. Page, appellant, v. Burnstine.

Opinion by Harlan, J. [Decided Jan. 24, 1881.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

COMMISSIONER -WRIT OF PROHIBITION — SUBJECT TO CONTROL OF COURT. - A United States commissioner, when acting as an examining magistrate, is a mere officer of the court as to whom the writ of prohibition is never employed. Such commissioner, however, is subject to the control of the court when acting as an examining magistrate, and the court can assume control of the proceedings whenever justice may require that it should be done. U. S. Dist. Ct., Colorado, Nov. 8, 1880. United States v. Berry et al. Opinion by Hallett, D. J.

GARNISHMENT-WAGES OF SEAMEN NOT LIABLE TO, IN STATE COURT. - The wages earned by a seaman in the coastwise trade of the United States are not subject to garnishment at the instance of the creditor of the seaman in an action at law brought in a State court. The judgment of a State court in such case directing the garnishee to pay such wages to a creditor is void for want of jurisdiction. A garnishee cannot plead such judgment in bar where it does not appear that execution has been awarded against him, or that he has been called on or compelled to pay the same. The Elizabeth & Jane, 1 Ware, 35; The Sarah Jane, B. & H. 414; Hutchinson v. Combs, 1 Ware, 65; Taylor v. Carryl, 20 How. 583; The Bark Rajah, 1 Sprague, 199; The Betsy & Rhody, 2 Dav. 118; Harden v. Gordon, 2 Mason, 559; The Express, B. & II. 608; Jesse v. Roy, 1 Cromp. M. & R. 316; Webb v. Duckinfield, 13 Johns. 390; Goodrich v. Peabody, 2 Dam. Abr. 462; Skolfield v. Potter, 2 Dav. 401; The Brig Spartan, 1 Ware, 139; Burnham v. Hopkinson, 17 N. H. 259. U. S. Dist. Ct., S. D. New York, Nov. 30, 1880. McCarthy et al. v. Steam Propeller City of New Bedford. Opinion by Benedict, D. J.

REMOVAL OF CAUSE PARTIES PLAINTIFF AND DEFENDANT IN SAME STATE- PRESUMPTION AS TO RESI

DENCE.Suit was brought by the Merchants' National Bank of Boston to foreclose the equity of redemption of the defendant, Edward Thompson, of Charlestown, New Hampshire, in five shares of trust property held by the plaintiff as collateral security for the payment of the defendant's bond. The defendant averred in his answer that he had sold one of the shares to Henry M. Clarke of Boston. The plaintiff thereupon amended its bill, and made Clarke a party defendant, who subsequently entered an appearance. Held, that such cause could not be removed under the second clause of section 2 of the act of 1875; further, that it would be presumed that Clarke was a citizen of Massachu*Appearing in 4 Federal Reporter.

setts in the absence of any proof to that effect. Osgood v. Chicago, etc., R. Co., 6 Bis. 330; Ruckman v. Ruckman, 1 Fed. Rep. 587. U. S. Circ. Ct., Massachusetts, Dec. 22, 1880. Merchants' National Bank v. Thompson. Opinion by Lowell, C. J.

WISCONSIN SUPREME COURT ABSTRACT.

ASSIGNMENT FOR CREDITORS -- WHEN ASSIGNEE GETS NO TITLE TO PROPERTY IN TRANSIT TO ASSIGNOR.

The assignee in a voluntary assignment for the benefit of creditors gets no title to property in transit at the time of making the assignment, and which is not men

NOVEMBER, 1880.*

ATTACHMENT -MONEY IN HANDS OF SHERIFF LIABLE TO.-Moneys in the hands of a sheriff, raised by him in pursuance of a decree of the Court of Chancery, are liable to seizure, by virtue of a writ of attachment. Crane v. Freese, 1 Harr. 305, and Davis v. Mahany, 9 Vr. 104, approved; Shinn v. Zimmerman, 3 Zabr. 150, and Hill v. Beach, 1 Beas. 31, explained. Conover v. Ruckman. Opinion by Depue, J.

FRAUDULENT CONVEYANCE-ASSIGNEE FOR CREDITORS OR ADMINISTRATOR MAY HAVE SET ASIDE.- -Assignees, under the Assignment Act, and executors and administrators of insolvent estates, are the representatives of creditors, and as such, may, for the benefit of creditors, set aside conveyances by the assignor or the decedent, in fraud of creditors, to the extent that such property is needed for the payment of debts. Garretson v. Brown, 2 Dutch. 425, approved; Van Keuren v. McLaughlin, 6 C. E. Gr. 163, overruled. See Hawes v. Leader, Cro. Jac. 270; 3 Wms. on Exrs., 1679; Bethel v. Stanhope, Cro. Eliz. 810; Anonymous, 2 Roll. 173; Roberts on Fraud. Conv. 592; Shears v. Rogers, 3 B. & Ad. 362; Holland v. Cruft, 20 Pick. 321; Stewart v. Kearney, 6 Watts, 453; Buehler v. Gloninger, 2 id. 226; Bouslough v. Bouslough, 68 Penn. St. 495; Everett v. Read, 3 N. H. 55; Abbott v. Tenney, 18 id. 109; Cross v. Brown, 51 id. 486; Fletcher v. Holmes, 40 Me. 364; McLean v. Weeks, 61 id. 277; 65 id. 411; Andruss v. Doolittle, 11 Conn. 283; Babcock v. Booth, 2 Hill, 181, 186; Flagler v. Blunt, 5 Stew. Eq. 518; Harton v. Castner, 4 id. 697; Kingsbury v. Wild, 3 N. H. 30; Drinkwater v. Drinkwater, 4 Mass. 354; Butcher v. Harrison, 4 B. & Ad. 129; Doe v. Ball, 11 M. & W. 531; Norcutt v. Dodd, 1 Cr. & Ph. 100; Holmes v. Penney, 3 K. & J. 90; Swift v. Thompson, 9 Conn. 63; Palmer v. Thayer, 28 id. 237; Shipman v. Etna Ins. Co., 29 id. 245; Moncure v. Harrison, 15 Penn. St. 385; Bayard v. Hoffman, 4 Johns. Ch. 450. Also Bell v. Cureton, 2 Myl. & H. 503; Garrard v. Lauderdale, 3 Sim. 1; Colyear v. Mulgrave, 2 Keen. 94; Scull v. Relvor, 2 Gr. Cod. 84; Alpaugh v. Roberson, 12 id. 96; Moore v. Bonnell, 2 Vr. 90. Pillsbury v. Kenyon. Opinion by Depue, J.

TITLE-WHEN DELIVERY ESSENTIAL TO COMPLETE. -A bond and mortgage belonging to a husband were assigned by him to one S., and by S. immediately reassigned to the wife; both assignments were duly acknowledged, and that to S. recorded, by the husband's

direction, but the bond and mortgage and both assign ments remained in the husband's possession, except once afterward when the mortgage was delivered to the wife for a temporary purpose and then returned by her to her husband. There was no consideration for the transfer. Held, that as there was no delivery of the bond and mortgage and assignment to the wife, the title thereto never passed to or vested in her. Folly v. Vantuyl, 4 Hal. 153; Farlee v. Farlee, 1 Zabr. 279, 286; Crawford v. Bertholf, Sax. 458; Cannon v. Cannon, 11 C. E. Gr. 316; 4 Kent Com. 456; 3 Wash. Real Pr. 581; 2 Kent Com. 438; Pringle v. Pringle, 59 Penn. St.

quired inventory, and where neither the vendor nor the vendee ever intended that the title should vest in such vendee making the assignment, notwithstanding he may get the property into his actual possession. In State v. Field, 5 L. T. Rep. 211, it was held that "the property of goods bought by an agent for the vendee, delivered by him to the vendee's packer, in whose hands they are attached by the vendee's creditors, revests in the vendor, so as to avoid the attachment, by the vendee having countermanded the purchase by letter to his agent dated before such delivery, though not received till afterward, the vendor assenting to take back the goods." Lord Kenyon, C. J., said: "It was in the power of the buyer and seller to put an end to the contract as if it had never existed." And Bul

ler, J., said: “With regard to the justice of the case it is impossible to entertain any doubt." In Bartram v. Farebrother, 4 Bing. 579, it was held that "P., to whom goods were consigned, said on their arrival at the wharfinger's, that he would not have them, and directed an attorney to do what was necessary to stop them. The attorney, on the third day of November, gave the wharfinger an order not to deliver them to the consignee, which order the consignor wrote to confirm on the sixth; on the seventh the goods were claimed under an execution at the suit of A. Held, that the contract between P. and the consignor was rescinded; that the transitus was not ended by the arrival of the goods at the wharf and the order given by P.; and that the consignor had a right to stop in transitu." To the same effect is the still later case of James v. Griffin, 1 M. & W. 20, in which Park, B., said: "The question for the jury was whether the act of the son was a taking possession of the bankrupt eo animo as owner. If it was, the transitus was at an end; if not, and he merely meant to take possession for a limited purpose, for the benefit of the seller, the transitus was not at an end." See, also, Bolton v. Ry., L. R., 1 C. P. 431; Grant v. Hill, 4 Gray, 361; Purviance v. Bank, 8 N. B. R. 447; Sturtevant v. Orser, 24 N. Y. 538. Clark v. Bartlett. Opinion by Cassoday, J. [Decided Dec. 17, 1880.]

BANKRUPTCY - SURETY ON GUARDIAN'S BOND DIS. CHARGED BY FIDUCIARY DEBT. - In an action

by Green, J.

* To appear in 6 Stewart's (33 N. J. Eq.) Reports.

[Decided Dec. 17, 1880.] EXEMPTION EXECUTION. Under the provisions of the U. S. R. S.,

- MONEY FROM PENSION EXEMPT FROM