are upheld only when the agreement to purchase property and pay for it in stock has been made in good faith and the property taken in payment of stock of subscriptions has been put in at a fair bona fide valuation.

9. Courts have inflexibly enforced the rule, that payment of stock subscriptions is good as against creditors only when payment has been made in money, or what may fairly be considered as moneys' worth.

10. The third section of the Land Improvement act, (Rev. 568) enacts that payment of the capital stock of corporations organized under the act may be made either in money or in land— the land to be appraised by the Board of Directors and taken at such valuation. Held, that the Directors in making the appraisement and valuation of lands taken in payment of subscription to capital stock act in a fiduciary capacity, and are bound to discharge the duties of the trust with fidelity.

11. Five persons agreed for the purchase of a tract of land and organized themselves into a corporation under the Land Improvement Act. In the certificate of incorporation the capital was fixed at $100,000, and these persons subscribed for all the capital stock and became directors of the company. The consideration of the purchase was $50,000; the deed was made directly to the corporation, and it gave its obligation for the whole purchase money. The Directors then appraised the lands at $100,000 and credited $50,000 of that valuation as a payment of fifty per cent. on the subscriptions to the capital stock. The lands were not worth more than the original purchase money, and the company acquired no other property, real or personal. In a suit brought by a creditor of the corporation against the subscribers to the capital stock to compel them to pay their subscríptions in order to satisfy debts of the corporation, Held, that as against creditors of the corporation the allowance of a creditor of fifty per cent. on the subscriptions of the stockholders was invalid, and that the stockholders were liable for

the whole amount of subscriptions to the capital stock as they appeared in the certificate of organization. Decree of Court below reversed.

ROE v. MOORE.

This was a question as to the validity of a conveyance by the defendant to a preferred creditor, the mother of the defendant. Held, That the onus of proving fraud is on the plaintiff and that the evidence does not justify the opinion of the Vice Chancellor. The conveyance is regarded as a mortgage and it is impregnable to attack by other creditors. The lands might be ordered sold, but defendant ought not to have her security diminished by expenses. The case should be remitted to the Court of Chancery if plaintiff gives security to pay, if the land does not bring enough. There should be a decree below in favor of the respondent and a reference to a master. Decree reversed and case remitted with such instructions,

MAYOR AND ALDERMEN OF JERSEY CITY V. SACKETT, ET. AL.

Award-Limitations—Dedication-A suit for the sum awarded a landowner for the taking of his land for the use of a street is founded on the statute, aud is not barred under the statute of limitations by the lapse of six years. Land inay be taken as a street and a sum awarded the

landowner who, subsequently, before the payment of the award, made a map with such street marked upon it and sold lands with reference to such map. Held, That as a matter of law such act did not necessarily amount to a dedication. Judgment affirmed.

VAN BLARCOM, ADM'R, v. VREELAND. Covenant to Assume Mortgage-Principal and Agent. -1. A covenant to assuine a mortgage for the payment of which the covenantee is personally responsible, binds the covenantor to pay the

Mechanics' Lien-Mistake in Record-1. The record of a judgment at law imports absolute verity. The Court of Chancery cannot examine or determine whether it expresses the judicial determination of the court in which it was protake of the clerk different from what it ought to nounced, or whether it was entered up by mishave been or was intended to be.

ceedings to enforce a lien claim may be general 2. A judgment of the Circuit Court upon proor special or both. If, when the proceedings are against the same person as builder and only, the Court of Chancery, in the absence of owner, the record shows a general judgment fraud or imposition, cannot directly or indirectly impose the debt involved therein as a lien on the lands in question on the ground that it ought to have been recorded as a special as well as a general judgment, and was erroneously recorded by mistake of the clerk.

FREEHOLDERS OF MORRIS Co. v. PIERSON.

Costs on Indictments—Jail Fees-1. Where an

offender is convicted on indictment and sentenced to the state prison, the costs of conviction are payable by the state and cannot be collected from the county.

2. The sheriffs are not entitled to demand from their respective counties jail fees for receiving and discharging prisoners who have not been either convicted or acquitted on indictment. Judgment affirmed.

DAVIS V Flagg.

Mortgage Assignment-Stay of Proceedings.-If the money secured by the mortgage is justly due, the motives of a person in acquiring an assignment of it and in foreclosing it, and his refusal to assign it to a third party, the money due being tendered to him, lay no ground for the staying of such foreclosure suit. Mrs. Flagg was the owner of premises upon which two mortgages were given at different dates. The second mortgagee filed a bill to foreclose, to which an answer was filed by Mrs. Flagg. The second mortgagee then procured the first mortgage to be assigned to one Mc Coon, and subsequently by him to the appellant in this case, who proceeded to foreclose it. After the assignment to Mc Coon the defendant offered to pay the money due on the mortgage provided an assignment should be made to the person advancing the money. This was refused, and upon these facts an order was obtained that if upon a tender made by the defendant of the amount due on the mortgage, with interest and cost, Davis should refuse to assign the mortgage as requested further proceedings in the foreclosure suit should be stayed and the bill dismissed upon receipt of the money and the execution of the assign

ment.

This order was appealed from. Held, That it cannot stand. The legal pursuit of one's right, no matter what may be the motive, cannot be deemned either illegal or inequitable. The second mortgagee did no allegal act, whatever his purpose may have been. The purchase of the first mortgage was legal and the suit cannot be stayed. The rule cannot be sanctioned that an assignee of a mortgage has no right to foreclose it, provided it be shown that he was actuated by ill will in obtaining it. The refusal of Davis to accept the money due on the first mortgage was neither illegal nor inequitable. Legal and equitable rights are to be enforced in the Court of Chancery, although the manner of acquisition of such rights may have been censurable. The case of Morris v. Tuthill, 72 N. Y. 575, cited and part of opinion quoted. Decree of Court of Chancery reversed.

ASSESSORS OF TAXES OF THE CITY OF RAHWAY v.

THE STATE, EX. REL MUNDY.

cution on the assessor of the city, but, refusing to assess the sum so due, the judgment creditor applied for a mandamus. Held, That he was entitled to such writ, the act of 1880 restricting the use and effect of the writ of mandamus being held to be unconstitutional. Judgment affirmed.

NEW YORK.

(Court of Appeals.)

BRIGG, ET AL. V8, THE CENTRAL NATIONAL BANK. JUNE, 1882.

Banking-Responsibility of drawer of Check. -The bank upon which a check was drawn was the collecting agent for the defendant for the rangement that all collections made for the destate in which it was situated, under an ar

fendant bank should be credited to it in a col

lection account, which was settled once a week. Held that the defendant must be regarded as having accepted the responsibility of the drawee upon its credit in the collection account as payment of the check.

BILLS, ET AL., v8. THE NATIONAL PARK BANK.
BILLS, ET AL., v8.
JUNE, 1882.

Attachment of fund in Bank Certified Check.— A bank depositor, a railroad company, expecting its accounts to be attached, drew its check payable to the order of R., its assistant treasurer, which the bank certified in the usual manner. After the attachment had been served and R., had been informed thereof by the bank, he opened an individual account and deposited the certified check and other negotiable securities belonging to the railroad and thereafter applied the credit so obtained to the payment of obligations of the company. The bank had good reason to believe and did believe that the securities so deposited were the property of the company.

Held, that the debt due from the bank to the railroad company, evidenced by the certified check, was attached while it was due to the company, and despite the attachment, was afterwards paid to the company.

KANSAS.

(Supreme Court.)

COCHRAN V. ATCHISON. MAY, 1882. Identification at Bank-Liability of Indorser.

identify a stranger to the bank and writes his name upon the back of a draft for that purpose, becomes liable in all respects as indorser and a guarantor of the genuineness of preceding signa

tion.

draft, without demand and notice even though he was ignorant at the time of his indorsment that the person whom he identified was not the actual payee and owner of the draft, but one in wrongful possession thereof.

ARKANSAS.

(Supreme Court.)

April 15, 1882. Landlord's Lien for Rent-- When Tender of Rent dis charges Lien-Held, the landlord's lien is not discharged by a refusal to accept a tender of rent unless the money is paid into court. Bloom r. Metiehee.

Right of Widow to $300 of Personal property Absolutely. A died, leaving but $300 worth of personal property. His widow appropriated this, married again, and died. The administrator of the estate brought replevin against the second husband for this personal property: Held, that he could not recover. The widow is entitled under the statute to the whole personal estate absolutely in her own right where it does not exceed $100 in value, and on her second marriage it passed to the husband, there being no showing that the second marriage occurred since the passage of the Married Woman's Act of April 28, 1873, or that she ever scheduled the property as her separate property under the act for that purpose.

Personal property acquired by a married woman before the act of 1873, was governed by the common law rule, unless scheduled under the said statute. Ward, Admr., r. West.

Forcible Entry and Unlawful Detainer-Gist of the Action.-Defendant denied forcible entry, and claimed to have taken possession of the property under color of title: Held, the action of forcible entry and unlawful detainer is not intended as a substitute for the action of ejectment. Its object is to restore possession without regard to the ownership or title of or to the property. Force is the gist of the action. Implied force-as where the defendant entered peaceably, though unlawfully-is not sufficient. It must be actual and hostile. Macks.

Hall v.

Ante-nuptial Contract-When Widow a Distributee of the Estate-Duty of Executor in paying Legacies.-Where the ante-nuptial contract of a married woman calls for a child's part or a distributive share of the personal property, she stands on the same footing as a distributee of the estate and possesses the same rights and remedies.

She is not a creditor of the estate, nor is she under the contract entitled to any portion of the estate unless the personal assets are more than sufficient to pay the debts. If instead of a child's part the agreement had been to noceive a specified sum of money, the case would have been different.

Executors and administrators are not authorized to pay legacies or distributive shares until two years after date of letters unless ordered by the Probate Court to do so; and such an order cannot be made until it appears upon a settlement that there are sufficient assets to pay all debts against the estate; and even then the legatee or distributee must give bond with security to refund his proportion of any debt which may afterwards be exhibited against the estate. McDearman v. Martin.

Relinquishment of Dower by Married Woman who is under age-Marriage does not confer Capacity to Contract or Convey.-Mrs. Billings, a married woman 17 years of age, duly relinquished dower in a deed executed by her husand, and duly acknowledged the same, informing the justice who took the acknowledgment that she was 21 years old. After the death of her husband she filed her bill for dower in the lands so conveyed: Held

1. Marriage gives an infant femme covert no additional capacity to contract or convey.

2. In this respect there is no difference between a conveyance and a relinquishment of dower.

3. The relinquishment was voidable as to her. This suit was begun in 1873, after the passage of the act of 1873, making females of full age at 18, when she was 19 years of age, and her husband having died in 1872, she had been discovert but one year. There was nothing to show an affirmance in the interim, and the bringing of the suit was in apt time, and was in itself an affirmance. Watsc. v. Billings.

Time to file Bill of Exceptions.-Held, that under the statute which limits the time which the court may give for filing a bill of exceptions to a period not further than the next succeeding term, the court cannot extend the time further, and ought not to allow further time than is fairly necessary to enable the attorney with reasonable diligence to prepare it. Carroll v. Prior.

CALIFORNIA.

(Supreme Court.)

MESMER ET AL., V. JENKINS ET AL. JULY 27, 1882. Estate of Deccused Person—Administrator-Trust-Creditors-Action-Insolvent Estate Misjoinder—Parties.— Creditors of the insolvent estate of a decedent, cannot maintain an action against the administrator of such estate and others, pending administration, to compel him and them to transfer to the estate real property to which he has for himself and them obtained the legal title, in such a way as to raise a constructive trust in favor of the estate.

Allowance of Claim-Judgment—Parties—Fraud, Before such creditors can maintain a personal action against the administrator it must appear that their claim had been allowed or that a judgment had been rendered against the administrator as such. In an action upon such claim the co-defendants of the administrator to the fraud are not necessary nor proper parties.

Removal of Administrator-Fraud—Inventory. An administrator, by procuring a conveyance of property to which the estate is entitled, to partics other than the estate commits a fraud for which, in a proper proceeding, it is the duty of the Court which appointed him to remove him. Further: It is the duty of an administrator to state in his inventory the interest of an estate in such property and to have the interest appraised, failing in which it is the duty of the Court to remove him.

LOS ANGELES BANK, V. RAYNOR. JULY 27, 1882. Sheriff's Sale-Deed-Execution-Entry of Judgment— Docketing-Ejectment-Presumption-Lien. In an action of ejectment against defendant in execution it is necessary for the plaintiff, who claims as a purchaser under the execution, to do more than show the judgment of a Court of competent jurisdiction, the execution issued thereon, and the Sheriff's deed. Upon proof of those things, the plaintiff makes out, at least, a prima facie case against the defendan

An execution issued upon a vlid judgment is sufficient authority to the Sheriff to make a sale of lands. The Sheriff's deed proves the sale, and the legal presumption is that all the acts of the officer which preceded the sale had been duly performed. Every intendment must be indulged in favor of the validity of the proceedings not inconsistent with the record.

UNITED STATES CIRCUIT COURT-DIST. OF SOUTH CAROLINA.

THE UNITED STATES v. ONE RAFT OF TIMBER.

Libel against a raft for not carrying a light_at night— interpretation of a statute. This was an action commenced by libel in the United States District Court for South Carolina to determine whether rafts or flats not carrying lights at night were subject under the statutes of the United States to any penalty.

The District Court. Bryan J., presiding, decided “that although there is statutory requisition that rafts must carry lights, yet Congress has not provided any penalty now existing which can be enforced against a raft by reason of not carrying lights.

The demurrer was sustained, and the libel dismissed, An appeal was taken to the Circuit Court.

THE supreme court will meet September 25th, The court will be confronted by over eleven hundred cases on the docket to dispose of, and new cases are steadily flowing in. Deputy Clerk Frazer, having returned from his summer vacation, is setting things to rights for the coming of the court. Mr. Dwight Crowell, the Clerk, who has been very grievously afflicted with a wounded hand, is reported to be on the improve, and hopes to be at his post when court.

opens.

Chief Justice Okey has remained in Columbus all summer, with the exception of a two week's trip to Washington and eastern points during August.

Judge Mellvaine went to New Mexico and we have no report of his return.

Judge White has been spending his summer among the Lake Eric Islands.

Judge Johnson, we understand, has been at his home in Ironton most of the summer.

Judge Longworth has been at Lake George and in the mountains since the first of July.

AN IMPORTANT DECISION.

We hope to be able to lay before our readers, soon, a very important decision by Judge Bingham of Franklin County as to the right of parties to an injunction restraining other parties from the commission of illegal acts which inflict irreparable injuries.

Some fifteen years ago various butchers erected slaughter houses, in the vicinity of the Institution for the Blind in this city, in violation of a statute which prohibited said erection and which makes the carrying on of the business of slaughtering within certain prescribed distances from such institution, punishable by fine and imprisonment. The people of the city, and the state officers also, have, during these fifteen years endeavored constantly to punish the said butchers and to abate the nuisances; but without success. The noxious vapors arising from the slaughter houses have, during all that time, engendered sickness among the inmates of the Institution for the Blind and many deaths have occurred, the schools being at one time broken up and the inmates all removed in consequence of the prevalence of a fever superinduced by the foul odors arising from the slaughter pens.

About two years ago application was made by the Attorney General acting for the Trustees of the Institution, to Judge Bingham for an in

junction to restrain the work of slaughtering within the prescribed limits. A temporary order was asked for in order to allow the butchers to come in and show that their business was more momentous than the lives and health of the wards of the state, but this was refused by his honor, who had doubts as to his power or authority to grant an injunction. He however had the case assigned for trial in order to give the butchers an opportunity of showing whether their slaughter houses were offensive or not; although the application was accompanied by the affidavits of the Superintendent of the Institution, the Physician of the Institution, and various officers and teachers, to the effect that they were very offensive indeed.

When the case came to trial the defence interposed a general demurrer which left the question simply as to whether the court had the right to interfere in the matter. It was admitted that the slaughter houses were offensive; that they engendered diseases and that various of the inmates of the Institution for the Blind had died of those diseases; also that the slaughter houses were erected within a limit prescribed by law, and that slaughtering within that limit was unlawful. With this difficult question the judge is now grappling.

The Attorney General relied chiefly upon the celebrated slaughter house cases which came from Louisiana to the Supreme Court of the United States (reported in 16 Wallace) and some thirty or forty cases in state courts wherein it is uniformly held that the right of the court to grant such order was undoubted.

The high reputation of Judge Bingham and the great length of time the case has been pending, leads us to expect a most valuable precedent in this decision when it is reached, no matter which way it is decided. It will then be definitely known whether the legislation of this and other states protecting public institutions is really authorized by the great fundamental principles of equity, or simply the reverse, and whether the law is or is not correctly stated by

the court in the cases above referred to.

CONCERNING INJUNCTIONS ALLOWED BY PROBATE JUDGES.

EDS. OHIO LAW JOURNAL, COLUMBUS, OHIO: Dear Stre:-I notice an article in the JOURNA of to-day, said to have been furnished by good brother from Pickaway County suggesting

the form of an order 'which should be made by a probate judge in granting injunctions in the absence of both a supreme or common pleas judge from such county, and I beg leave to suggest to him the question whether an order allowing an injunction by a probate judge would be binding in any case or by following any form. Or, is the statute, allowing the probate judge to make such an order, constitutional? I apprehend that a careful investigation of this question, and the result of such inquiry given to the profession would be of more value than any form however carefully worded, and much improper practice would be avoided.

Yours very truly,

JOHN M. SWARTZ.

NEWARK, OHIO, August 31st, 1882.

We are rather inclined to the belief that, so long as the law confers upon probate judges the authority and power of common pleas judges in certain cases during the absence of the latter; and the practice is constant in invoking the action of the former, that it is vastly more important that proper forms be observed, than that we either doubt the legality of the procedure or the We, thereconstitutionality of the law itself. fore, with all respect for our correspondent above, must consider him on the wrong side of the argument.

In this connection we may say that the practice, as regards forms and entries, is shamefully slip shod in many courts of this state and demands a radical reform. The attorneys too often decide the cases. The preparation of the entry is left to the attorney who obtains the order or decree or judgment, and, where the case is complicated and there are many parties and points decided, much injustice may be, and often is, accomplished by the shrewd use of language therein, or a willful mis-statement of the ruling of the court, either of which may be unnoticed or undiscovered until too late for correction. Even when the discovery is made-if in the district court especially-the difficulties encountered in getting the judges together and refreshing their minds in order to reform the decree according to its original intendment, are about as great as in trying the case at the first.

This should be corrected. The judges should be required by law to reduce their decrees to writing and let those be the only entries admitted to the records of the case.

The point made by our Circleville friend is