they had made a like tender in gold coin and it had been refused;" and it is settled law that a lawful tender is equivalent to actual payment, and renders the subsequent acts of the collector illegal. On the latter proposition, the court cites numerous cases, Woodruff v. Trapnall, among others, where certain notes of the Bank of Arkansas had been tendered for taxes, which by law and contract were receivable, and it was held to extinguish the judgment, and that execution sale conferred no title. Justice Matthews continues "The defendant therefrom had no authority of law thereafter to attempt to enforce other payment by seizing his (plaintiff's,) property. In doing so he ceased to be an officer of the law, and became a private wrong-doer." It cannot be said that the action was substantially against a State, merely because the defendant was a State officer, and in collecting revenue in this manner acted in obedience of the supposed directions of the State. This subject was considered in Cunningham v. Macon, etc. R. R.,9 where it was observed: "Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defence is that he acted under orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defence he must show that his authority was sufficient in law to protect him." And a law void for unconstitutionality is no authority. "This distinction," says Justice Matthews," is essential to the idea of constitutional government. To deny it, or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, our self-government based on sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say 'L'Etat c'est moi.'" (p. 291.) This was not a case where the court attempted to control the discretion of executive officers; or the exercise of political power in the administration of the State's finances; nor was it an attempt to compel the State or its officers to perform the State's obligation, but is simply the redress of a legal wrong inflicted under authority of an unconstitutional law. We submit that not only was there nothing "monstrous" in this decision, but that it is in entire harmony with legal principles and justice.

In Allen v. B. & O. R. R.,10 the court went a step further, and held that after tender of the coupons, equity would restrain a levy, and thus prevent the infliction of the contemplated wrong. But the general rule is that a party must find his remedy in a court of law; the collection of the revenue is necessary to the maintenance of the State, and it is important that government should not be embarrassed in its operation by a stay of collection, and where the tax is only a personal charge, collectable by distraint, it is difficult in most cases to suggest any ground of equitable jurisdiction.12

2. The difficulty in enforcing payment of municipal obligations, arises chiefly from the fact that the power of taxation is legislative, and not judicial; and there must, therefore, be a distinct legislative authority on each levy.13 The judiciary are not at liberty to exercise legislative power, for the separation of the three great departments of government is itself a constitu

8 10 How.[190.

9 109 U. S. 446.

10 114 U. S. 311,

11 Antoni v. Greenhow, 107 U. S. 769.

12 Cooley on Taxation, 772.

13 Cooley on Taxation, 41, 324.

tional inhibition against the exercise by either of power belonging to the other department.14 And the legislature cannot give the courts power to tax.15 Courts of equity are just as barren of this power as courts of law. Thompson v. Allen Co., supra. And the appeal from injustice must be made to the legislature; the courts have no control. It has been repeatedly held that when a judgment has been recovered against a municipality which can only be paid by means of taxation, the levy of the tax to pay it may in proper cases be compelled.16 But this, of course, is where there is no discretion to be exercised by the custodian of the power as to times or exigencies under which it is to be exercised. It is usual to make express provision by statute for such cases, but even where the State has not expressly provided for the duty, it will, perhaps, arise from the power with which the municipality is clothed to contract debts.17 But mandamus will not lie to compel a levy in excess of legal limitations, for the reasons that the writ cannot confer power, but only command its exercise; the courts cannot exercise the power of taxation independently of legislative action, and the fixing of the rate of taxation is a legislative power.18 For the latter reason the courts cannot appropriate money already raised; 19 nor can the courts. empower its marshal, or a commissioner, to collect the tax when levied, for that would be the exercise of political power. Thompson v. Allen Co.20 These are far different from the power possessed and exercised by the courts of compelling a public officer to do a mere ministerial act. Where a contract is made with a municipal corporation on the faith that taxes will be levied, legislation repealing or modifying the power is within the inhibition of the Constitution, and the creditor, notwithstanding the repeal, may compel the levy by mandamus.21 The power cannot be withdrawn until the contract is satisfied.22 Subsequent legislation reducing the territorial limits of the municipality, or altering the rate of taxation, are also invalid.23 But if the corporation becomes totally extinguished, so that there is no officer upon whom the court can act, the creditor is without remedy, save by appeal to the legislature.24 In such case the property of individual citizens could not be subjected to payment of corporate debt; nor could the property held by the municipality for public use, such as public buildings, etc., held in public capacity; such property passes directly to the State.25 So, also, taxes levied under previous power. Cooley Tax., 78. Where the body holding the power has ceased to exist, or is vacant, the courts are equally powerless.26

***

14 People v. Draper, 15 N. Y. 543; Cooley on Taxation, 42; Merriwether v. Garrett, 102 U. S. 472. 15 Monday v. Rahway, 43 N. J. 338.

16 Cooley on Taxation, 735.

17 Cooley on Taxation, 736.

18 United States v. Macon Co., 99 U. S. 592; Ralls Co. Ct. v. N. U. S. 105, U. S. 733; St. Louis v. Zebly, 110 U. S. 321. 19 State v, New Orleans, 34 La. An. 469; Louisiana v. Jumel, 107 U. S. 711.

20 Supra.

21 Nelson v. St. Martin's, Parish, 111 U. S. 716; Wolff v. New Orleans, 103 U. S. 358.

22 Von Hoffman v. Quincy, 4 Wall. 535.

23 United States ex rel v. Port Mobile, 4 Woods 536.

24 Merriwether v. Garrett, 102 U. S. 472

25 Merriwether v. Garrett, supra; Cooley on Taxation,

78;

26 Heine v. Levee Com. 19 Wall. 655; Barclay v. Levee Com. 93 U. S. 258; Thompson v. Allen Co., supra.

WEEKLY DIGEST OF RECENT CASES.

ALABAMA,

GEORGIA,

ILLINOIS,

INDIANA,

MAINE,

MASSACHUSETTS,

MICHIGAN,

MISSOURI,

NEW York,

OHIO,

PENNSYLVANIA,

UNITED STATES, WISCONSIN,

1. AGENCY

25, 26 11

10

6, 7, 14, 15, 29 5, 24, 27, 30 2, 3, 13

8

23

18, 20, 21 12 1, 16, 17, 28 4, 19, 22

Principal and Agent - Real-Estate Brokers-Commissions - When Payable — Good Faith-Concealment― Forfeiture of Commission. -The rule that a real-estate broker's commission is earned whenever a party is procured who will comply with the terms of the principal, is to be enforced only when the agent acts with the utmost good faith towards his principal. Where an owner employed an agent to sell his property for $140,000, and a purchaser entered into an agreement with the agent to purchase at that price on condition that the agent should endeavor to induce the owner to sell at a lower figure, and conceal from him the agreement, the concealment of the agreement, and efforts by the agent to induce the owner to sell at a lower sum, showed such a lack of good faith that the agent was not entitled to recover commission from the vendor. Pratt v. Patterson, S. C. Penn. April 19, 1886. Atl. Rep. Vol. 3, 858. 2. BAILMENT - Liability of Tailors for Property Stolen From Customers.-A. went to the clothinghouse of the defendants, and, while trying on a suit of clothes, left his own clothing in a closet to which he had been directed by a salesman in the store. During the time he was away from the closet his pocket-book and other property was taken from his clothing. No negligence was shown on the part of the defendants, and there was evidence of experienced tailors, that it was customary for tailors to provide dressing-rooms for customers in which to hang up their clothes while trying on suits they had ordered. Held, that the defendants were not liable to the plaintiff for the loss of his property. Rea v. Simmons, S. Jud. C. Mass. May 7, 1886. N. E. Rep. Vol. 6, 699.

3. BOUNDARIES Monuments Parol Evidence, when Admissible-Ambiguity Boundary LinesStatements of Former Owners. Where monuments are mentioned in a deed, and upon applying the description in the deeds to existing monuments an ambiguity is found to exist, and the monuments do not agree with the courses, evidence is admissible to show that such a line was adopted by the parties as to warrant the inference that the monuments did not agree with the courses, and to raise a presumption that the monuments of the transitory and uncertain kind mentioned had previously existed on the line. Oral evidence of a former owner of the land, as to where he understood the lines to run, is admissible, although the land was then subject to a mortgage which has since been foreclosed, and under which the demandant derived his title. Flagg v. Mason, S. J. Ct. Mass. Jan. 19, 1886. N. E. Rep. Vol. 6, 702.

4. CONSTITUTIONAL LAW-City Ordinances of San Francisco Discretional Authority to License Trades-Const. Fourteenth Amendment.-The ordinances of the city of San Francisco give the board supervisors authority, at their discretion, to refuse permission to carry on laundries, except where located in buildings of brick or stone. The appellants applied for and were refused permission, and thereafter they were convicted of a violation of the above ordinances, and sentenced to imprisonment. Held, that the ordinances were unconstitutional and invalid; it being a breach of the fourteenth amendment to the constitution to empower any man, or body of men, at his or their absolute and unrestrained discretion, to give or withhold permission to carry on a lawful business in any place. Yick Wo r. Hopkins, S. C. U. S. May 10, 1886. S. C. Rep. Vol. 6, 1064.

5. CONTRACT-Corporation.-A bid in answer to an advertisement for proposals for a building does not constitute a contract. It must be accepted without condition to have that effect, or if condition is imposed, that must be first complied with. Where one party is a corporation, acting through a building committee, a majority of the committee must concur, to make or alter a contract. Howard v. Maine etc. School, S. C. Me. April 16, 1886. N. Eng. Rep. Vol. 1, 894.

6. CRIMINAL LAW.-Dying Declarations-Premeditation Malice- Provocation - Misconduct of Counsel.-The dying declaration of the deceased was taken in the form of questions and answers, and he was asked, "What reason, if any, had the man for shooting you?" to which he answered: "Not any that I know of. He said he would shoot my d-d heart out." Held, to be admissible, and not the expression of an incompetent opinion. The name of the person who committed the homicide, as well as the name of his victim, may be proved by the dying declarations of the deceased. When the accused testifies as a witness, he is to be treated as any other witness upon cross-examination. The cross-examination must be confined to the subject of the direct examination, but this rule does not restrict the cross-examining council to the specific matters asked for on the direct examination Malice may be implied from the killing, if it is done purposely without legal excuse, justification or reasonable provocation. It is not error to instruct the jury that premeditation may be inferred from express malice, evidenced by threats and the seeking of an opportunity to kill the deceased. It is not error to instruct the jury that if the defendant has voluntarily testified that he has committed the crime of burglary, that fact may be considered in determining the credibility of his testimony. Boyle v. State, S. C. Ind., March, 1886, Crim. L. Mag., Vol. 7, 655.

7.

Larceny and Receiving Stolen Goods-What must be Shown-Indictment-Name of Thief Unknown — Identification. To sustain the charge of having received stolen goods it must be proved that the goods were received, either directly or indirectly, from the thief, knowing them to have been stolen; and a second receiver of the goods is not guilty of such offense unless he receives them under circumstances connecting him with the thief. It is sufficient to charge in the indictment, in such case, that the goods were stolen by some person to the grand jurors unknown, but it must be shown at the trial that reasonable diligence was used to ascertain the name of the thief,

8.

9.

and he must in some manner be identified or singled out at the trial. Foster v. State, S. C. Ind., May 11, 1886, N. E. Rep., Vol. 6, 641.

Admissions-Self-Criminating Evidence-Rebutting Evidence.-Where two persons are jointly accused of the commission of a crime, the admissions of one made in the absence of the other, tending to criminate, may be properly admitted in evidence; but the jury should be instructed that they are only to be received as evidence against the party making them. The refusal of a witness to answer a question because such answer might tend to criminate him, cannot be commented on by counsel, or taken into consideration by the jury in determining the weight to be given to the witness' testimony. Where it is shown that a certain kind of cutter was seen in the neighborhood of the larceny, and the defense offer evidence tending to show that the persons charged with the crime did not own such a cutter, it is not error to allow the prosecution, on rebuttal, to show that they did have and use a cutter similar to the one seen near the place of the larceny. It is a matter within the discretion of the trial court. People v. Mannausau, S. C. Mich., February, 1886, Crim. Law Mag., Vol. 7, 680.

Arson Circumstantial Evidence.— On a trial for arson of a barn, it was proved that the dog of the owner of the barn had been poisoned by eating meat with strychnine on it, and it was attempted to fix the crime upon defendant by showing that he was arrested near the farm on which the barn was situated, and at the time of his arrest had in his possession meat with strychnine on it, similar to that with which the dog was poisoned, and a chicken that had been stolen from the barn. Held, that the evidence was admissible, as tending to connect defendant with the commission of the crime charged, and, with other suspicious circumstances, sufficient to sustain a conviction. State v. Halleck, S. C. Wis., February, 1886, Crim. L. Mag., Vol. 7, 643.

10. EASEMENT.

Right of Way - Foundation of Right-Estoppel.-The owner of a piece of land having made a plat, and divided the land into ten lots, five lying on each side of a strip of land running through the center, and thereafter sold the lots at public auction, publicly announcing that the strip of land had been laid out as a road for the use of the different lots so as to give access to the main road without traveling over the property of their neighbors, there being no other means of access, an easement or right of way is created which passes to the grantees of the original purchasers, and qualifies the title to the strip of ground, whether in the original owner, in his heirs, or in their grantees. The foundation of the doctrine of easement in this and similar classes of cases, is a disposition and arrangement of the premises, as to the uses of the different parts by him who has the unity of seizin,and then a severance of title. Under the circumstances of this case, a grantee of the strip of ground holding by conveyance from the heirs of the original owners, is as much estopped as were such original owners from interfering with the right of way of the different lot-owners over the strip of ground designated and reserved for their Clarke v. Gaffeney, S. C. Ill., March 30, 1886, N. E. Rep., Vol. 6, 689.

use.

11. EMINENT DOMAIN.-Although the charter of a railroad company authorized it to acquire such

strips of land between its terminal points as it might deem necessary, the width of the right of way not being stated, yet when the road was located along and near the land now in dispute, and for thirty years the company did not take or use it, but it remained in the possession of others who claimed title to it, this was conclusive that it was not deemed necessary by the company for the successful operation of the road, and was not therefore a part of its right of way under its charter, no conveyance to the company or condemnation of the land appearing; and a verdict finding in favor of the company for the land under such facts was without sufficient evidence to support it. Mooney v. Rome Railroad, S. C. Ga., May 1, 1886, Ga. Law Rep.

12. ESTOPPEL.-Pleading-Evidence.-When a party claims a former adjudication of matter set up in an action to be an estoppel, such judgment should be pleaded; and where the same is not pleaded when it can be, it is not evidence conclusive of an estoppel, and testimony may be given to show the truth. Meiss v. Gill, S. C. Ohio, May 11, 1886, N. E. Rep., Vol. 6, 656.

13. FIXTURES.-Innocent Purchaser-Notice-Furnaces Attached to the Realty.-An innocent purchaser of certain dwelling-houses, in which furnaces had been attached to and become a part of the realty, is not affected by an agreement between his grantor and vendor of the furnaces, by the terms of which the latter was to retain the property in the furnaces until they were paid for. Furnaces placed in the cellar of a house, upon a row of bricks, set in a circle, with pipes fastened to the ceiling of the cellar, and connecting with the chimney and registers of the house, are annexed to and become a part of the realty, and will pass by a deed of the land. Ridgeway Store Co. v. Way, S. Jud. Ct. Mass., May 7, 1886, N. E. Rep., Vol. 6, 714.

14. HUSBAND AND WIFE.-Right of Wife in Real Estate When Attaches-How Defeated — Improvements― Partnership Assets-Right of Wife to Surplus.-Where a husband, during marriage, becomes seized of real estate in fee-simple, the right of the wife therein cannot be defeated by him by any agreement short of a conveyance in which she joins. Where the firm in which the husband is a partner make improvements on such real estate out of firm means, and for partnership purposes, the right of the wife does not attach to the improvements, on the death of the husband, as to the real estate, but only to the surplus remaining after the partnership is wound up. Grissom v. Moore, S. C. Ind., April 23, 1886, N. E. Rep., Vol. 6, 629.

15.

Married Woman Warranty Deed-Estoppel-Inchoate Interest - Appellant's complaint alleged, in substance, that, by will of an ancestor, she was given an inchoate interest in certain real estate, dependent upon her survivorship of her husband, and that before his death she joined him in a warranty deed thereto "for the purpose only" of conveying his interest therein. Held, that the deed being absolute on its face, no mistake being shown, and no reformation being asked, she was estopped from claiming such interest as against the grantee. Littell v. Hoagland, S. C. Ind., May 11, 1886, N. E. Rep., Vol. 6, 645.

16. INSURANCE.-When Policy Takes Effect.-When an agent of an insurance company authorized to deliver policies and receive premiums delivers a policy, and the premium is paid in good faith by the insured to a person appointed for that purpose by the agent, the company is estopped from denying that the contract of insurance is complete, although the premium may not reach the agent or the company until after the loss occurs. Riley v. Commonwealth, etc. Co., S. C. Penn., May 1886; Pitts. L. J., June 2. 1886.

17.

-. Life Insurance-Insurable Interest-Assignment of Interest by Heirs-Minors-No recovery can be had upon a policy of insurance by a beneficiary under such policy, who is wholly without an insurable interest in the life of the insured. Where certain policies of insurance were issued upon a life, and made payable to a stranger, reserving a certain interest to a minor son of the insured, and when the insurance fell due, assignments of their interests were made to the stranger by all the heirs of the insured except such minor son, such assignments will not prevent a recovery by the administrators of the insured's estate from such stranger, of the difference between the amount of the insurance and the amount expended by him in mountaining the policies. Ruth v. Katterman, S. C. Penn., March 29, 1886; Atl. Rep. vol. 3, 833.

18. JUDGMENT-Setting Aside for Fraud.-Courts of equity have general jurisdiction, in a proper case, to set aside the judgments and decrees of courts; but to authorize the setting aside of a judgment on the ground of fraud in obtaining it, the proof should be clear and very satisfactory. It is not incumbent upon a plaintiff to reveal to the defendant every infirmity in his case, nor upon the defendant, to reveal to the plaintiff every infirmity in his defense. Where there is no relation of confidence between the plaintiff and defendant they stand at arms' length. They come into court as adversaries, and neither party is bound to make any revelation of his case to the other. Neither party can mislead the other by any positive or actual fraud, nor can he, for the purpose of perpetrating a fraud upon the other, conceal such facts as good faith and common honesty require him to reveal. But to authorize a court of equity to set aside a judgment on the ground of fraud, there must have been a false and fraudulent representation, or a fraudulent affirmative act, or a fraudulent concealment of a fact for the purpose of obtaining an undue and an unjust advantage, and procuring an unjust and unconscionable judgment. Ward v. Southfield, N. Y. Ct. of App. April 27, 1886; East. Rep. Vol. 5, 86.

19. LACHES-Remedies-Accounting.-A party who, in reliance upon another, places his property and business interests in his hands, is not guilty of laches, if, misled by the errors and misstatements of the other in regard to the condition of the account between them, so that he is made to believe the balance is against him, he delays bringing suit to recover his rights until he learns the true state of the case. Loring v. Pulmer, S. C. U. S. May 10, 1886, S. C. Rep. Vol. 6, 1073.

20. MORTGAGE-Foreclosure-Leasehold - Dispos sessing Mortgagor-Ejectment of Tenant-Execution of Writ of Possession-Six Months' Limitation. In the case of a mortgagee out of possession, who is not chargeable with notice of proceed

21.

ings to dispossess his mortgagor, stronger grounds exist for requiring that, for the purpose of cutting off his mortgage, the writ of possession should be executed by an open, visible, and notorious change of possession, than in the case of the tenant or defendant in the judgment, and a merely nominal and secret execution of the writ should not be held sufficient to bar him. The mere reaching into a house, without entering, and taking therefrom a chair, and setting it outside, is not such an execution of the writ of possession as is required to bar such mortgagor out of possession, and consequently the limitation of six months in which to redeem does not run as against him. Newell v. Wigham, N. Y. Ct. of App., March 26, 1886; N. E. Rep. Vol. 6, 673.

Consideration-Extending Payment of Firm Note-Burden of Proof.-An extension of time for the payment of firm notes is a good consideration for the execution of a mortgage by the wife of one of the members of the firm as collateral security for their payment. In an action to foreclose the mortgage, the burden is upon the defendant to show that the notes had been paid. Maclaren v. Percival, N. Y. Ct. of App. April 27, 1886; East. Rep. Vol. 5, 83.

22. MUNICIPAL CORPORATIONS - Action Upon Bonds-Authority to Issue.-In an action upon negotiable municipal bonds, the bonds in the suit containing no statement for the purpose for which they were issued, and no recital binding the municipality by way of estoppel, the complainant must allege and prove the authority to issue them, and the purpose for which they were issued. An averment, in general terms, of power to issue, is not sufficient. Hopper v. Covington, S. C. U. S? May 10, 1886; S. C. Rep. Vol. 6, 1025.

23. NEGLIGENCE.- Action for Injuring Animal Duty of Owner to Protect same and Prevent Further Loss after Injury.— It is the duty of a party to protect himself from the injurious consequences of another, if he can do so by ordinary care and effort, and at moderate and reasonable expense, and where, by such means, he can limit and prevent further loss, and if he fails to do so, he cannot recover the further loss resulting from his own neglect in this respect. 3 Pars. Cont., 178; Field on Damages, p. 19. This rule is applicable to a case where a railroad train had injured an animal: held, that the trial court erred in refusing an instruction to the effect, that it was the duty of the plaintiff to take charge of the animal after it was injured, and if, by reasonable effort, further loss could have been prevented, and if the plaintiff failed in this regard, then there should be deducted from the value of such injured animal,the amount, which the evidence tends to show, that plaintiff could by reasonable effort, have saved from loss. 21 1ll. 649. Harrison v. Mo.Pac. R. Co., S. C. Mo., May 17, 1886.

24. SUNDAY LAW.-The fact that a promissory note was made and delivered on Sunday is no defense in Maine, unless the defendant shows that he has offered to restore the consideration. A discharge in insolvency does not affect a promissory note given by the insolvent before the law on Sunday contracts was enacted, if the note was not proved against the insolvent estate. Erskine v. Glidden, S. C. Me., April 12, 1886, N. Eng. Rep., Vol. 1, 898.

25. TRESPASS TO LAND.-Action-Right to Follow and Re-take Property under New Form, if Identified-When a trespasser enters upon land, fells timber, and converts it to his own use, the owner may maintain trover for the conversion, or detinue for the property, if it can be identified, notwithstanding any change in its form; but this principle does not apply to timber cut by an adverse possessor. In delivering the opinion of the court, upon this point, Chief-Justice Stone said: "There is a rule of law, that if a trespasser enters upon the lands of another, and fells his timber, and afterwards detain or convert it to his own use, detinue or trover may be maintained for the detention, or conversion. And the conversion of the timber into something much more valuable does not impair the plaintiff's right of recovery, so long as it can be individualized or identified. Whatever alteration of form any property had undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials; as if leather be made into shoes, or cloth into a coat, or a tree be squared into timber." Betts v. Lee, 5 Johns. 348; Curtis v. Groat, 6 Johns. 168; Brown v. Sax, 7 Cow. 59; Wright v. Grier, 9 Watts, 172; Riley v. Boston Water Power Co., 11 Cush. 11; Note to Armoy v. Delamirn, 1 Smith's Lead. Cas. (8th ed.) pt. 2, 707; Cooper v. Watson, 73 Ala. 252; Riddle v. Driver, 12 Ala. 590. There is an exception to this rule, when the person who commits the trespass and converts the timber,is in the adverse possession of the land. Title and right of possession of lands can not be determined in a mere suit for the conversion of the timber. Beatty v. Brown, 76 Ala. 267; 1 Smith's Lead. Cas. (8th ed.), pt. 2, 704." Street v. Nelson, S. C. Ala., December Term, 18851886.

26. TRUSTEE.-Removal of Husband as TrusteePower of Chancery Court, Whether Estate Equitable or Statutory.-It is entirely immaterial what may be the character of the wife's separate estate, described in the bill in this case-whether equitable or statutory-the action of the chancellor in removing the husband from the trusteeship of the property, was free from error. In delivering the opinion of the court, Somerville, J., said: "The testimony shows that he had permanently abandoned the wife, without sufficient excuse; that he was profligate and unfit for the discreet management of her property; that he wasted her income by consuming it for his own personal uses; and that he grossly disregarded his fiduciary duties in such manner as that if his conduct is not checked by the strong arm of a court of equity, it will probably lead to the impoverishment of the complainant in very old age. Code, 1876, §§ 2728-29, 2717; Booz v. Booz, 36 Ala. 334; Sloan v. Frothingham, 72 Ala. 589; 1 Perry on Trusts (3d ed.), § 275.” Karft v. Lohman, S. C. Ala., December Term, 1885-1886.

City Street.-A vendee who is without knowledge of a defect in title when an agreement is executed, is not compelled to accept a doubtful title, or one that will probably require a lawsuit to establish its validity. Where an executory agreement for the sale of land was made without the knowledge of the parties, that an unopened street had been located and laid down upon the city plans through a portion of the property, a bill for specific performance to compel the execution of the contract will not lie. Appeal of People's etc. Bank, S. C. Penn. April 19, 1886. Alt. Rep. Vol. 3, 821.

29. WATERS AND WATER-COURSES-Dam-Grant of Easement-Rights of Remote Grantees-Right to Maintain Mill-Dam at Original Height-Right to Make Permanent.-Where the owner of an entire estate grants a part thereof, with certain water rights and privileges, to one, and afterwards grants the remainder of the estate to another, subject thereto, the remote grantees of the former have the same rights against the remote grantees of the latter as the original grantee of the water rights had against the original owner, or his immediate grantee, of the main estate. Where, in such case, the height of the dam is not specified in the grant, the efficient height of the dam to hold back the water, and furnish power equal to that which was rightfully appurtenant to the mill at the time of the original conveyances, is the measure of the right of the remote grantees; but the fact that the former owners maintained such power by the use of "flash-boards" does not prevent such grantee from using more simple and permanent means to reach the same result; and where an artificial channel has been washed around the dam, the right exists. to extend it in such a manner as to close the channel without injury to the other party. Lammott v. Ewers, S. C. Ind. May 11, 1886. N. E. Rep. Vol. 6, 636.

30. WILL-Legacies—Failure of Assets-Deficiencies how Borne-Annuities-Trust-Duty of Trustees. in Investment of Trust Funds.-When the possibility of a failure of sufficient assets to meet the legacies named by a testator in his will has not been anticipated and specifically provided for him, the the presumption of intended equality prevails between legatees, as well as equality in respect to the share to be borne in all deficiencies as assets. In case of such deficiency after the payment of debts, expenses, and specific legacies, the loss in the borne pro rata by those pecuniary legacies which are in their nature, general. Annuities stand upon the same footing as legacies, and both must abate proportionally. In the investment of trust funds, trustees are to conduct themselves faithfully, and in the exercise of a sound discretion, not with a view to speculation, but rather to the permanent disposition of the funds; considering the probable income, as well as the probable safety, of the capital to be invested. Emery v. Bachelder, S. C. Me.. April 28, 1886. Atl. Rep. Vol. 3, 733.