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used as it was then and still is defined by the authorities, and well understood under the lawmerchant in the commercial world. Melton v. Gibson, 97 Ind. 158. The sole purpose of the section was to put a limitation upon section 5503,and provide for commercial paper that might circulate free from defenses in favor of the maker. This is accomplished by the provision that, if the note be payable at a bank in this State, it shall be negotiable as inland bills of exchange. The note, then, with the addition prescribed by the statute, must be such as would have been negotiable under the law-merchant without any statutory provision.

Are the notes in suit such as would have been thus negotiable? A standard author has said: "To learn what qualities are essential to a negotiable promissory note, we must bear in mind the purpose of the note, and of the law in relation to it. This is simply that the note may represent money, and do all the work of money in business transactions. For this purpose, the first requisite -that, indeed, which includes all the rest-is certainty. This means certainty * *. Second, as to the person or persons who are to make this payment, and the order and conditions of their liability * *. Fourth, as to the time when payment is to be made * *. It will be seen that the law endeavors to enforce, define, and protect all these certainties as far as possible," etc. Par. Bills & Notes, 30. See, also, 1 Daniel Neg. Inst. § 41. This same general doctrine of the books is recognized by this and all other courts. Walker v. Woolen, 54 Ind. 164. In this case it was said: "A note, in order that it be negotiable in accordance with the law-merchant, must be payable unconditionally and at all events, and at some fixed period of time, or upon some event which must inevitably happen."

*

Were it necessary, we might cite numerous decisions by this court asserting the general doctrine of certainty as necessary to a promissory note under the law-merchant. The difficulty is not as to the general doctrine, but the application of it to each case as it arises. In the case before us, all parts of the note must be looked to in determining the quality of the paper. There is a promise to pay in twelve months, but that promise is not certain and unconditional. The other clause is that the time of payment may be extended indefinitely, as the parties may agree. From an inspection of the note, it is impossible to tell when it may mature, because it is impossible to know what extension may have been or may hereafter be agreed upon. No definite time is fixed, nor is the maturity of the note dependent upon an event that must inevitably happen. The condition is, not that something may happen or be done that will mature the note before the time named, thus leaving that time as fixed and certain, if the thing do not happen or be not done, but the condition is that the time named may be displaced by another uncertain and indefinite time, as the parties may agree. This distinguishes the case from some of the cases cited by appellee, which hold

that so long as a definite time of payment, as fixed in the note, remains fixed and certain, the note retains its negotiability, although by certain agreed conditions it may be matured before that time. The case here is also distinguishable from another class of cases which hold that the time of payment may be dependent upon an event that must inevitably happen, such as the death of the maker, the coming of the seasons, etc.

The precise question involved here has been passed upon by the Supreme Courts of Iowa and Michigan, and in each case it was held that the condition destroyed the negotiability of the note. Woodbury v. Roberts, 59 Iowa, 348; s. c., 13 N. W. Rep. 312; Smith v. Van Blarcom, 45 Mich. 371; s. C., 8 N. W. Rep. 90. See, also, as in point, Cook v. Satterlee, 6 Cow. 108; Gillilan v. Myers, 31 Ill. 525; Costelo v. Crowell, 127 Mass. 293. We conclude from the foregoing that the notes in suit are not negotiable under the statute as inland bills of exchange, and that, therefore, whatever defenses appellant might have set up and made available as against Nugen, the payee, he may set up and make available as against appellee. Appellee concedes that the first answer is sufficient if the notes in his hands are subject to defenses by appellant. A holding, therefore, that the notes are thus subject to defenses, is a holding that the court below erred in sustaining the demurrer to all of the answers. Appellant's counsel have directed the whole of their argument to the proposition that the notes are open to defenses, and have said nothing in support of the answers. The first answer is clearly good, as it sets up an entire want of consideration for the notes. For the sustaining of the demurrer to this answer the judgment must be reversed. There is nothing in the notes nor in the mortgage that can operate as an estoppel, as against appellant, to make this defense.

As there is no discussion of the other answers, we observe simply that the second answer, setting up an extension of the time of payment, is not good as a plea in bar. If such an extension may be made available, as we think it may be in this case, it should be brought forward as a plea in abatement. And under our present statute (section 365, Rev. St. 1881) such answer must precede, and cannot be pleaded with, an answer in bar. As to the third answer, in which there was an attempt to make available as a defense the fact that Nugen was not the owner of an undivided onethird of the land covered by the mortgage, it is sufficient to say that the plea does not make a defense either upon the ground of fraud, or upon the ground that there was a breach of warranty. The judgment is reversed, with costs.

NOTE. For a long period of time the English judges were not in harmony upon the question of the negotiability of notes. Bills of exchange were passed from hand to hand and their negotiability was not questioned. But notes were, according to some decisions, denied this privilege. Even Lord Holt, who is credted with being a usually sound judge, went so far as

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to deny their negotiability. By statute, however, this matter was remedied by the passage of 3 and 4 Anne Ch. 9. (1705), which provided that promissory notes could be negotiated and pass the same as bills of exchange. This was afterward made perpetual by 7 Anne Ch. 25 § 3. In most of the States there have been either substantial re-enactments of those statutes, or they have been regarded as part of the common law. A promissory note has been defined to be "a written promise to pay a certain sum of money, at a future time, unconditionally." Other definitions are to be found in the books, but all of them seem to agree, that certain elements are necessary to a promissory note. One of these elements is certainty. A note to be good as such, should be certain as to time of payment, certain as to amount, besides other matters connected with its drawing and delivery, which it is unnecessary to consider here.

Certainty of Time of Payment.-The law assumes that at a certain time the instrument will be converted into money, and if any conditions are imposed which render payment contingent, it ceases to recognize it as negotiable paper. The indorsee of negotiable paper must always look out for the insolvency of the maker or his inability to pay from any cause whatever; but if the note be burdened with any conditional matter that may alter his contract, the law steps in and declares it not negotiable. Thus a promise to pay "provided A. B. shall leave me sufficient, or if we shall otherwise be able to pay it," is a fatal contingency.2 The maker might never be able to pay, a contingency which would defeat the note. But in that case, it was said, if the note were payable upon a certain contingency, one which must inevitably happen, it would be good. If, for instance, it were payable upon a persons' death, it would be good, for although the time of payment might be long delayed, yet it must be payable some time.3

Some of the earliest English and American cases recognized the rule, that if payment of the note or bill depended upon any contingency its negotiability was destroyed. But to make a promissory note invalid as such, the contingency to avoid it must be apparent, either upon the note itself or upon some contemporaneous writing. This is merely following a well established rule of the law of evidence. Thus, where the note upon its face purported to be payable on demand, parol evidence was excluded which tended to show that it should not be payable until after the death of the testator, or any time other than that mentioned in the note. If the instrument be payable in instalments, but no time is set at which they shall be paid, it is not a promissory note. But in another case where the payments were to be made at such time as the directors of the corporation might assess or re

1 2 Bouv. Law D. Prom. Notes.

2 Roberts v. Peake, 1 Burr. 323. 3 Colehan v. Cooke, 2 Str. 1217.

4 Colehan v. Cooke, supra; Williamson v. Bennett, 2 Camp. 417; Kingston v. Long, 4 Doug. 9; Hartley v. Wilkinson, 4 Camp. 127; Leeds v. Lancashire, 2 Id. 205; Dawks v. Deloraue, 3 Wils. 207; Clarke v. Percival, 2 B. & Ad. 660; Morgan v. Jones, 1 Cromp. & J., 162; Braham v. Bubb, cited Chitty Bills, 135; Worley v. Harrison, 3 A. & E. 669; Alves v. Hodgson, 7 T. R. 241; Palmer v. Pratt, 2 Bing. 185; Drury v. Macauley, 16 M. & W. 146; DeForrest V. Trary, 6 Cow. 151; Hubbard v. Mosely, 11 Gray. 170; Kelly v. Heiningway, 13 Ill. 604; Seacord v. Burling, 5 Denio. 444; Bunker v. Athearn, 35 Me. 364; Husband v. Epling, 81 Ill. 172; Kingsbury v. Wall, 68 Id. 311.

5 Woodbridge v. Spooner, 3 B. & Ald. 233; also Free v. Hawkins, 8 Taunt. 92; Rawson v. Walker, 1 Stark. 361; Moseley v. Hanford, 10 B. & C. 729.

6 Moffat v. Edwards, Car. & M. 16.

quire, it was held a promissory note. Notwithstanding the instrument is in the form of a bill or note, if it contains any contingency which may never make the drawer or maker liable upon it, it ceases to be a promissory note and cannot of course be negotiated.8 Nor will the happening of the contingency make the note negotiable although it is alleged in the pleadings. It matters not whether the condition expressed in the note be precedent or subsequent, any uncertain contingency will defeat it.10 If the money be not payable at all events, or any corditions are imposed which defeat its purpose as a note, the instrument should be regarded as a contract between the parties merely, and declared on as such. In Stephens v. Blunt,12 the promise was to pay "on the day of or when he completes the building according to contract." It was held a promissory note and negotiable on the ground that it was payable on a day certain. But this decision is clearly erroneous. The defendant had the option of paying on the day mentioned, or when the building was completed, the latter being a contingency which might never happen.

Amount to be Paid Must be Certain.-The note for the protection of the commercial public should also be certain as to the amount to be paid on it when it falls due. Thus, an instrument is not negotiable if it engages to pay a certain sum and all other sums which may become due, for the amount which one may be called on to pay cannot be ascertained.13 But if the amount can be ascertained from the face of the paper, the words used are immaterial. A written promise to pay a certain sum per acre for as many acres as a certain tract contained-was held to be a note from the time the number of acres was indorsed upon it.14 There are numerous authorities holding that the additions of the words "with exchange" or of the like tenor, does not invalidate the note, for the reason that the amount of exchange can be readily estimated,15 and that where the face of the note shows there can be no exchange where it is payable, the words "with exchange" should be regarded as mere surplusage.16

7 White v. Smith, 77 Ill. 351. Also Dutchess Cotton Mfg. Co. v. Davis, 14 Id. 238; Wright v. Irwin, 33 Mich. 32; Oridge v. Sherborne, 11 M. & W. 394; Carlin v. Kinealy, 12 Id. 139.

8 Coolidge v. Ruggles, 15 Mass. 387; Tucker v. Maxwell, 11 Id. 143; Atkinson v. Manks, 1 Cow. 691; Worden v. Dodge, 4 Denio, 159; Nichols v. Davis, 1 Bibb, 490; Mershon v. Withers, Id. 503; Bayley on Bills, 16. There has been some dispute as to whether a note payable on or before a day certain is negotiable, some good authorities holding that it is. Mattison v. Marks, 31 Mich. 421; Curtis v. Horn, 58 N. H. 504; Coba v. Buck, 7 Nut. 589; Ernst v. Stackman, 74 Pa. St. 13; Walker v. Wollen, 54 Ind. 164. Others that it is not. Ld. Campbell, C. J., Alexander v. Thomas, 16 Ad. & E. 333; Hubbard v. Moseley, 11 Gray, 170; Way v. Smith, 111 Mass. 523; Stults v. Silva, 119 Id. 137.

9 Hill v. Halford, 2 Bos. & P. 413.

10 Worley v. Harrison, supra; White v. Smith, supra. 11 Brooks v. Page, D. Chipman, 340; Dewey v. Washburn, 12 Vt. 580; Denison v. Tyson, 17 Id. 550; Chaplin v. Canada, 8 Conn. 286; Carlos v. Fancourt, 5 T. R. 482; Leeds v. Lancashire, supra; Haydock v. Lynch, supra. Where instrument contains words"value received," see Edgerton v. Edgerton, 8 Conn. 6.

127 Mass. 240.

13 Smith v. Nightingale, 2 Stark. 375. For same affect, Legro v. Staples, 16 Me. 252; Lime Ins. Co. v. Hewitt, 60 Id. 407; Jones v. Simpson, 2 B. & C. 318; Bolton v. Dugdale, 4 Id. 619.

14 Smith v. Clopton, 4 Tex. 109.

15 Smith v. Kendall, 9 Mich. 241; Johnson v. Irwin, 15 Id. 285: Liggett v. Jones, 10 Wis. 34; Gutacap v. Woolwise, 2 McLean, 581; Bradley v. Lill, 4 Biss. 473; Pollard v. Herris, 3 B. & P. 335.

16 Hill v. Todd, 29 Ill. 603; Clauser v. Stone, Id. 116; dis

Following the same principle, it has been held that an agreement to pay a collection or attorney fee, does not impair the negotiable quality of the note.17 But there is some conflict upon this point, other cases holding that the insertion of a promise to pay attorney fee in a note, makes the amount to be paid uncertain and therefore not negotiable.18 If the note be payable in part for a sum certain and part upon contingency, it will not be negotiable.19 So also the character of the bill or note is destroyed if it be made payable out of a particular fund, the contingency whether it will ever be paid depending upon the sufficiency of the fund upon which it is drawn.20 Thus an order of A. upon B. to pay a certain sum out of money in his hands has been held not negotiable.21

Payment must be in Money.-As promissory notes are made to take the place of money, it is necessary that they should be payable in money. A promise to pay and deliver articles, partakes of none of the qualities of negotiable paper; for although it is a promise to pay, it is a promise to do something else also, and the latter promise destroys its negotiability.22 So also if the promise be to pay a certain sum in money or specific articles, it is not a note. The payee has the alternative of paying the note in money or specific articles.23 Where nothing is mentioned in the note about what it shall be paid in, it must be paid in money, and nothing else will suffice. A promise to pay in "good East India bonds," or in cash, or Bank of England notes, and the like, are not promissory notes.24 This is the English rule, and in some of the States it has been followed. In others it is more broad, the courts evidently regarding certain bank bills, etc., equivalent to money.25

tinguishing Lowe v. Bliss, 24 Ia. 168. But contra, Russell v. Russell, 1 McArthur, 263; Read v. McNulty, 12 Rich. (Law), 445.

17 Sperry v. Horr, 32 Iowa, 184; Smith v. Muncie Natl. Bk., 29 Ind. 158; Wyant v. Pattorff, 37 Id. 512; Stoneman ▼. Pyle, 35 Id. 101; Johnson v. Crossland, 34 Id. 334. But only valid as between original parties. Hubbard v. Harrison, 38 Id. 323; Dietrich v. Bayhi, 23 La. Ann. 767; Gaar v. Louisville B. Co., 11 Bush. (Ky.), 180; Nickerson v. Shelden, 33 Ill. 373; Seaton v. Scoville, 18 Kan. 433; Adams v. Addington, 16 Fed. Rep. 89. But contra. Johnson v. Speer, 92 Pa. St. 227; Graff v Logue, 17 N. W. Rep. 171; 18 C. L. J. 19; First Natl. Bank v. Larsed, 19 N. W. Rep. 67; 18 C. L. J. 379; Heard v. Dubuque Co. Bank, 8 Neb. 10. 18 First Natl. Bk. v. Gay, 60 Mo. 33, disapproving Stonė. man v. Pyle, Nickerson v. Sheldon and Sperry v. Horr, supra

19 Palmer v. Ward, 6 Gray, 340.

20 Wadington v. Covert, 51 Miss. 631; Averetts Admr. v. Booker, 15 Gratt. 165; Josselyn v. Lacier, 10 Mod. 294; Munger v. Shannon, 61 Id. 258; Kenney v, Hinds, 44 How. Pr. 7; Harriman v. Sanborn, 43 N. H. 528; West v. Forman, 24 Ala. 400: Haydock v. Lynch, supra: 1 Pars. Notes & B. 43.

21 Pitman v. Crawford, 3 Gratt. 137.

22 Martin v. Chauntry, 2 Str. 1271; Wallace v. Dyson, 1 Speers, 127; Barnes v. Gorman, 9 Rich. 297; Austin v. Burns, 16 Barb. 643; Knight v. M. & W. R. R., 1 Jones (N. C.), 357; Jerome v. Whiting, 7 Johns. 321; Saxton v. Johnson, 10 Id. 418; Peppen v. Peytavin, 12 Mart. (La.) 671.

23 Dennett v. Goodwin, 32 Me. 44; Matthews v. Houghton, 2 Fairt. (Id.) 377; Alexander v. Oaks, 2 Dev. & B. (N. C.) 513; Atkinson v. Manks, 1 Cow. 691.

24 Ex parte Imeson, 2 Rose, 225; Ex parte Davison,Buck, 31; McCormick v. Trotter, 10 Serg. & R; Lieber v. Goodrich, 5 Cow. 186; Jones v. Fales, 4 Mass. 245; Young v. Adams, 6 Id. 182; Springfiel 1 Bk. v. Merrick, 14 Id. 322; Gray v. Donahoe, 4 Watts, 400; Whiteman v. Childress, 6 Humph. 303; Fry v. Rosseau, 3 McLean, 106; Warren v. Brow, 64 N. C. 381.

25 Judah v. Harris, 19 John. 144; Keith v. Jones, 9 Id.

Additional Contracts.-Mr. Parsons, in regard to what additional contract made in the note will destroy its character, says: "If the collateral agreement be one which destroys or impairs any of the essential characteristics of negotiable paper, it prevents the paper from being negotiable." The case of Overton v. Tyler, is a leading American case upon this point. It illustrates an important principle in the law of negotiable paper, viz.: that an instrument is not a promissory note, if such conditions are attached as to make it probable that the parties did not intend it to be a promissory note. The condition in the note in Overton v. Tyler, authorized any attorney of any court of record, to appear and confess judgment for the amount of the note, and also released all errors and waived execution and right of inquisition on real estate, and right of having property appraised which might be levied upon by virtue of any execution issued for such Such an instrument was held not a promissory note. "The warrant and stipulation," says Gibson, J., "incorporated with this note, evince that the object of the parties was not a general but a special one.

sum.

Yet the negotiability of the note, if it had any, as well as its separate existence, was instantly liable to be merged in a judgment, and its circulation being arrested by the debt being attached, as an incumbrance to the maker's land, and it was actually merged when it had nearly three months to run. Now it is hard to conceive how the commercial properties of a bill or note can be extinguished before it comes to maturity."

Opposed to this doctrine we find the case of Osborn v. Hawley, 28 where the note contained a power of attorney to confess judgment. Not all of the conditions were attached, however, as in the Pennsylvania case; hence it might not be regarded as in direct conflict. The court held that this clause did not destroy the legal character of the note, as it was only intended to give a more summary proceeding for its collection.

In a late Pennsylvania case a clause was added to the note, "and five per cent. collection fees, if not paid when due," and it was held not negotiable. Sharswood, J., says: "Interest and costs of protest after non-payment at maturity are necessary legal incidents of the contract, and the insertion of them in the body of the note would not alter its negotiability. Neither would a clause waiving exemption, for that in no way touches the implicity and certainty of the paper. But a collateral agreement, as here, depending too, as it does, upon its reasonableness, to be determined by the verdict of a jury, is entirely different." 29

A case somewhat similar to the principal case may be found in Iowa. There, the note was made payable in three months, but was indorsed with the following agreement: "The payee or his assigns may extend the time of payment thereof, from time to time indefinitely." This was held not negotiable.30 Detroit, Mich.

ADDISON G. MCKEAN.

120; Swetland v. Creigh, 15 Ohio, 118; White v. Richmond, 16 Id. 5; Besancon v. Shirley, 9 S. & M. 457; Cockrill v. Kirkpatrick, 9 Mo. 697; Bizzell v. Williams, 3 Eng. (Ark.)

138.

26 Pars. Notes & B. 146.

27 3 Pa. St. 346. See also opinion of Pollock, C. B., in Sibree v. Tripp, 15 M. & W. 23.

28 19 Ohio, 130. See also Kemp v. Klaus, 8 Neb. 24; Heard v. Dubuque Co. Bk., Id. 10. But as sustaining Pa. case, Lyon v. Martin, 31 Kan. 411; Zimmerman v. Andrews, 67 Pa. St. 421.

29 Woods v. North, 84 Pa. St. 410. See 1st Nat. Bk. v. Gay, 63 Mo. 33, and cases cited.

30 Woodbury v. Roberts, 59 Iowa, 348. Citing Smith v. Van Blarcom, 8 N. W. Rep. 90; Miller v. Poage, 56 Iowa, 96.

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1. NEGOTIABLE PAPER. [Guarantor-Usury.]— The guarantor of a promissory note may set up the defence of usury. In giving the opinion of the court Seevers, J., said: "A guarantor is a surety. Brandt, Sur. 1. 2 Daniel Neg. Inst. § 1753. A surety may avail himself of the defense of usury to the same extent the principal can. Brandt, Sur. 202. Weimer v. Shelton, 7 Mo. 122; Morse v. Hovey, 9 Paige, 196; Austin v. Fuller, 12 Barb. 360; Stockton v. Coleman, 39 Ind. 106. And in Huntress v. Patten, 20 Me. 28, it is held that the guarantor of a contract tainted with usury is so far a party to the same that he may set up such defense."] Congor v. Babbett, S. C. Iowa, Sept. 24, 1885; 24 N. W. Repr. 569.

2. RECORDING ACTS. [Constructive Notice.] Extends only to Privies.-The record of a conveyance or mortgage is constructive notice to those only who must trace their title through the grantor or mortgagor. A deed or mortgage of real estate, executed by a party out of possession, and having no record title or apparent interest in the premises not alone, when recorded, constructive notice of the title or interest of such grantee or mortgagee against one who traces his title from the apparent owner. [In the opinion of the court Maxwell, J., says: "A deed duly acknowledged and recorded is constructive notice to all persons claiming through or under the grantor. Doe v. Beardsley, 2 McLean, 412; Bates v. Norcross, 14 Pick. 231; Schutt v. Large, 6 Barb. 373; Flynt v. Arnold, 2 Metc. 619. But where the party executing the deed or mortgage is not in possession, and has no record title or apparent interest in the premises, a mortgage executed by him upon such premises is not constructive notice to creditors of or subsequent purchasers from the apparent owner. Chicago v. Witt, 75 Ill. 211; Fenno v. Sagre, 3 Ala. 458; Calder v. Chapman, 52 Pa. St. 359; Lightner v. Mooney, 10 Watts. 407; Losey v. Simpson, 11 N. J. Eq. 246; Cook v. Travis, 20 N. Y. 402; St. John v. Conger, 40 Ill. 535. The reason is, the record of a conveyance or mortgage is constructive notice to those alone who must trace their title through the grantor or mortgagor by whom the deed or mortgage was made. 2 Pom. Eq. § 761, and cases cited."] Traphagen v. Irwin, S. C. Neb., Sept. 29, 1885; 24 N. W. Repr. 684.

3. STATUTES. [Repeal.]-Effect of Special Saving Clause.-Where a repealing statute contains a special saving clause, the general saving statute contained in § 1, c. 104, of the General Statutes (Comp. Laws 1879, c. 104, § 1) will not apply, and no rights or remedies will be saved except such as are saved by the special saving clause. State v. Showers, S. C. Kan., Nov. 7, 1885; 8 Pac. Kepr 474.

4. TRIALS. [Instructions.] Not Error to Refuse Unless Wholly Correct.-To entitle one to have a requested instruction given, it must be wholly correct, and the evidence must warrant the jury in finding such facts as to make it applicable to the

case. [In giving the opinion of the court, Haskell, J., says: "A requested instruction must be wholly correct. Grand Trunk Railway Co. v. Latham, 63 Maine, 177. The evidence must warrant the jury in finding such facts as to make the requested instruction applicable to the case. Penobscot Railroad Co. v. White, 41 Maine, 512; Lord v. Inhabitants of Kennebunkport, 61 Maine, 462."] Snow v. Penobscot River Ice Co., S. C. Me., Jan. 15, 1885; 77 Me. 55 (adv. sheets).

5. TRIALS. [Instructions.] Remedy when not Sufficiently Explicit.-Where objection is made that the instructions of the court to the jury are not sufficiently explicit, the remedy is to request instructions which are satisfactory. Burlington & M. R. Co. v. Schluntz, 14 Neb. 425; s. C., 16 N. W. Rep. 439: Sioux City, etc. R. Co. v. Brown, 13 Neb. 317; S. C., 14 N. W. Rep. 407.] Republican Valley R. Co. v. Fink, S. C. Neb., Sept. 29, 1885; 24 N. W. Repr. 691.

6. WILL. [Equitable Conversion.] Land Directed to be Converted into Money Treated as Money.Where the decedent directs that his real property be converted into money on or before a given time, it becomes at law money, and will be treated as personal property from the moment of his death. [In the opinion of the court by Yellott, J., it is said: "By a fundamental principle in equity, long established and universally recognized, land is considered as converted into money, even anterior to a sale, when a sale has been directed; and courts of equity will deal with such real estate as personalty, in anticipation of the consummation of the testator's intention, when such intention has been unequivocally declared. There must, however, be an imperative and unequivocal direction to sell the real estate; and when the power to sell requires the consent of the parties interested, there is no conversion until such consent is given. And where the sale is dependent upon a contingency, there is no transmutation until the contingency has happened. As said by Lord Cranworth, chancellor: "We must consider the property as converted from the time when it ought to have been converted." Ferrie v. Atherton, 28 Eng. Law & Eq. 1. And another importaut rule s that, as courts are averse to sanctioning a change in the quality of an estate, if there is any doubt as to the intention of the testator the original character of the property will be retained. "The basis of all the decisions is that the intent of the testator is the great guide in determining the question whether there has been an equitable conversion of the realty into personalty.' Orrick v. Boehm, 41 Md. 104; Lynn v. Gephart, 27 Md. 563; Hurtt v. Fisher, 1 Har. & G. 96; Leadenham's Ex'r. v. Nicholson, Id. 267; Thomas v. Wood, 1 Md. Ch. 297; Carr v. Ireland, 4 Md. Ch. 251; Craig v. Leslie, 3 Wheat. 564; Peter v. Beverly, 10 Pet. 533."] Keller v. Harper, Md. Ct. of App., June 24, 1885; 1 Atlantic Repr., 65.

7.

-.

-Vested and Contingent Interests.] Gift Over of Personalty, When a Vested Interest.-Under the provision in a will that "At the decease of my wife all my estate, real and personal, shall go to and be equally divided among my children, the issue of a deceased child standing in the place of its parent," who died after the testator and before the wife, has a vested interest, assignable in the child's lifetime. In the opinion of the court, C. Allen, J., says: "It is further contended that. inasmuch as the gift in the will embraces personal as well as real estate, it might more readily be inferred that the testator

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intended that his children should only take a congent interest, and that some of the earlier Massachusetts cases countenance this. Dingley v. Dingley, 5 Mass., 535; Denny v. Allen, 1 Pick., 148; Emerson v. Cutler, 14 Pick., 115; Rich v. Waters, 22 Pick,, 563. In the later cases, however, the above decisions have been overruled or questioned; see Wright v. Shaw, 5 Cush., 56, 60, 61; Abbott v. Bradstreet, 3 Allen, 587; Bowditch v. Andrew, 8 Allen, 339, 342, 343; and gifts over of real and personal property at the expiration of widowhood to the testator's children, have usually been held to convey a present vested interest to the child. the whole, looking at all parts of the will, considering the repetition in a later portion of substantially the same idea in different phraseology; in view of the absence, in either of these provisions, of any words of contingency such as 'my children surviving,' and if the fact that nothing was wanting to put the children in full possession except the mere efflux of time; regarding, also, the provisions that in case of the remarriage of the testator's wife the whole income of both real and personal estate was at once to go to his children, we are brought to the conclusion that the children took vested interests and that the share of Harriet L. Gibbens passed by the will. See, also, Doe v. Considine, 6 Wall., 458 (XVIII, Law. ed., 869); Parker v. Converse, 5 Gray, 336."] Gibbens v. Gibbens. S. C. Mass., Sept. 12, 1885; 1 New Eng. Repr. 98.

CORRESPONDENCE.

WANTS TO WRITE FOR US.

To the Editor of the Central Law Journal:
Could I write you an article now and then for your
journal? Yours truly,
JOHN SMITH.

Cranberry Marsh, Wis.

[If you are a good lawyer and an experienced writer; if you have access to a complete library of English and American reports; if you are willing to explore those reports until you have searched a question through and through and shaken out the corners, instead of wrecking the United States Digest and cribbing the foot-notes of text-writers; and then if you can put together the matter which you have collected in as good shape and as well boiled down as Mr. Haddock of your State, or Mr. Black of Pennsylvania, or Mr. Thornton of Indiana, or other of our noble little army of contributors do, with proper spelling and punctuating;you can write for us; otherwise not. We are running a journal for the benefit of those who pay us money, and we are not conducting a training school for amateur writers. Not that we exclude beginners, -by no means; but beginners must practice until they can send us an article which is up to our standard.ED. C. L. J.-P. S. If you are a new hand, you might break the ice by sending something to the Editor of our Jetsam and Flotsam, who is a very amiable person.-ED. C. L. J.]

ADDENDUM TO THE "THANKSGIVING
OFFERING."

To the Editor of the Central Law Journal:

1 have subscribed for the CENTRAL for a good many years and have always liked it. I think your short articles excellent; also the digest of cases. Give as many reports of important cases as possible; the next best thing, give a digest of the balance; and if any

lawyer wants the full report of the case he will know where to get it. I seldom have a hard case but I get some help from the CENTRAL. Recently when Prosecuting Attorney, I was trying a man for attempt to commit arson, under our Ohio statute: I found more learning in the CENTRAL than anywhere else, that fitted my case and carried the court. This is only an instance. Then give us as much of the news and literature of the profession as possible. I like to know what is going on in the profession. Yours respectfully, Warren, Ohio. WASHINGTON HYDE.

ENFORCEMENT OF LIABILITY OF RESIDENT STOCKHOLDERS IN A FOREIGN CORPORA

TION.

To the Editor of the Central Law Journal:

In 21 C. L. J., 523, the case of Flash v. Conn. is referred to as reported in 16 Fla. 428. The same case was before the Supreme Court of the United States in 109 U. S. 371. There the Florida court was sustained, and the U. S. Circuit Court reversed, see to same effect, Judge Lowell's opinion in Cuykendall v. Miles, 10 Fed. Repr. 342. Yours respectfully, T. D. C. INTER-STATE GARNISHMENTS AND EXEMPTION LAWS.

To the Editor of the Central Law Journal:

I received a copy of the last issue of CENTRAL LAW JOURNAL, and have read it through quite carefully. I notice an article under the caption of "Notes of Recent Decisions," in relation to the exemption laws, you quote a Wisconsin authority.-Pierce v. The Chicago and Northwestern Ry. Co. (36 Wis. 283,) as to the question of exemption of railway laborers whose wages are attached or garnished out of the State. This authority does not uphold the doctrine that the right to claim wages as exempt is a personal one, and can only be set up by the defendant in the original action. It certainly holds right to the contrary, that the garnishee is held responsible to the original defendant, if he pay over money knowing the same to be exempt -if he shall do so in an attachment or garnishee suit brought in another State, where the person resides in this State; and so held where the principal debtor was not personally served with process: and also in the absence of proof that the exemption laws of another State are the same as our own. It seems strange that the instance you cite can be a proper proceeding in any State court, that a creditor could send a claim from Texas to Missouri and have an attachment proceeding commenced for the collection of a debt due in Texas. Is not an attachment proceeding an action in rem? What could be attached by a creditor against a laborer of the Missouri Pac. Ry. Co? Could a locomotive, a car or any thing else, be attached of this company, that would give the court jurisdiction to render a judgment against the company or defendant? In the first place, must there not be a judgment in the original action entered against the original defendant, before the judgment can be entered against the garnishee defendant? The court could have no jurisdiction to enter a a judgment against a citizen of this State, attached in any other State, that would not still make the garnishee responsible. It has always been held that you cannot attach, say air-that you have got to get hold of something that belongs to the defendant, or no attachment or garnishment upon an attachment will lie. The law on attachments may be different in Missouri from that in other States, but I have never heard of its being changed from an action in rem. CHAS. D. SMITH.

Fond du Lac, Wis.

[It is plain enough. An original attachment in Mis

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