recover to show that defendant made no such investment as that authorized but appropriated the money to his own use, or if he did in form make an investment of it, that it was not a bona fide one, but a mere sham. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial ordered. This action was brought to recover a balance of $19,492.91 for goods sold and delivered, consigned or caused to be consigned, and for commissions and moneys paid out. It appeared that the plaintiffs, who reside in Zurich, Switzerland, received in October, 1875, an order from W. O. & Co., of New York, for goods to be manufactured by them for the price of the material Opinion by Rapallo, J. All at the time of the order and the concur. RECEIVERS. PLEADING. WITNESS. N. Y. COURT OF APPEALS." Honegger et al., applts., v. Wettstein et al., respts. Decided Dec. 14, 1883. In an action to recover for goods sold to a firm the receiver appointed in an action to dissolve the partnership was made a party by order of the court and interposed a defense that the goods were imported at an under-valuation and in violation of the revenue laws. No such defense was in terposed by the original defendants. The receiver's petition to be made a party alleged collusion between plaintiffs and one or more of the defendants, on information and belief, but did not give the source of information nor name any of the defendants. Held, That this statement was insufficient to support the order and the defense interposed could be of no avail; that the original defendants not having pleaded such defense were not in a position to insist that the goods were shipped to them in violation of law and hence that they could not be sued therefor. Foreigners are not presumed to be acquainted with our revenue laws and every intendment is to be made in their favor. One of the firm testified in support of the defense interposed by the receiver. Held, That he was an interested party and that the question of his credibility should have been submitted to the jury. cost of manufacturing them. Before the goods were manufactured goods of that kind had declined in the market of Zurich from 10 to 15 per cent., and as plaintiffs doubted the responsibility of W. O. & Co., they refused to deliver the goods so directed to be manufactured, but stated they would give W. O. & Co. a credit of 50,000 francs and send on consignment all the goods ordered, and as fast as W. O. & Co. reduced their indebtedness below 50,000 francs they were to take from the goods so consigned an amount equal to the difference between what remained and the 50,000 francs. Goods were sent directly to W. O. & Co. prior to January 1, 1876, and after that they were sent under the above arrangement. Evidence was introduced showing that after January 1, 1876, the goods were sent through the Custom House at an alleged under-valuation, and in violation of the revenue laws of the United States. No such defense was set up in the answers of the defendants W. & M., who were members of the firm of W. O. & Co., but it was pleaded in the answer of F. M., who had been appointed receiver of said firm in | shipped to them by plaintiffs were an action to dissolve it. By an order of the Superior Court, made upon his own application and dated December 19, 1879, F. M. was made a party defendant to this action, with leave to answer and defend, but no provision was made for an amendment of the summons and complaint, nor were the same amended in this respect. Duplicate invoices were introduced in evidence of three shipments of goods of the value in the aggregate of 58,492 francs, 70 centimes, which goods O., then being one of the firm of W. O. & Co., testified he had ordered to be manufactured at a price agreed upon several months before the shipment thereof. He also swore that plaintiffs refused to deliver the goods, but offered to consign them at their own risk; that the duty bills were made at the actual price of the day the goods were shipped in Zurich, and plaintiffs were to invoice the goods at the market value. Only three invoices of which there were duplicates were offered in evidence, and there was no duplicate invoice as to the balance of plaintiffs' claim, to wit: 31,225 francs, 38 centimes. The claim for commissions was for goods ordered by W. O. & Co., through plaintiffs, from third par ties. D. M. Porter, for applts. Lucien Birdseye, for respts. Held, That assuming a case was made out in violation of the revenue laws, the defendants W. & M. not having pleaded any such defense were not in a position to insist upon the trial that the goods imported in violation of the laws of the United States, and that for that reason plaintiffs could not sue them to recover the value of the same. The most that defendant F. M., the receiver of W. O. & Co., could claim was the protection of the funds in his hands as receiver. The only ground upon which he could insist on such a defense is that he represents the creditors and hence it may be required to protect their rights. This is not enough, and the receiver should not on behalf of and for the benefit of the defendants and without their request or approval and in opposition to their refusal, insist upon the same. The court refused to submit to the jury a question raised as to the credibility of the witness O., whose evidence was given for the purpose of showing the alleged violation of the revenue laws by plaintiffs and in explanation of the three invoices of which there were duplicates. Held, Error; that O. was an interested party and had a direct interest in increasing the fund in the hands of the receiver and in preventing its payment to the plaintiffs, and it was a fair question for the jury to say whether he might not have been influenced by his interests. The revenue laws are malum prohibitum and not malum in se. The plaintiffs being foreigners are not presumed to be acquainted with them and every intendment is in favor of the plaintiffs. The only ground upon which the under a parol agreement to take water from the spring of another by means of pipes laid through his lands, the proof must be entirely clear as to the nature and specific character of the agreement. receiver asked to intervene is that | To establish a right by adverse possession there was collusion. His petition states that upon information and belief such collusion existed between one or more of the defendants and the plaintiffs. It does not name any one of the defendants or give the source of information or set forth why the statements are not verified by the persons from whom such information was obtained. Held, That these statements were insufficient to support the order, and hence the defense interposed by him can be of no avail. The receiver had no such interest in the action as authorized him to intervene and interpose a defense. The question as to the validity of the order allowing the receiver to intervene was presented on the appeal from the order of the General Term affirming it. Held, That it constituted a part of the record and as it affects the final judgment is appealable. Code Civil Proc., 1316. Judgment of General Term, affirming judgment on verdict for defendants, reversed and new trial granted, and order of General Term, affirming order allowing receiver to intervene and defend, H. C. & J. C. entered into a parol agreement by which they were to lay pipes on the lands of J. C., to carry water from a spring to the houses of J. C. and H. C. Each was to pay half the expense and do half the work, and H. C. was to have the right to take water from the spring through pipes in perpetuity. No agreement was made as to the size of pipes, their depth below the surface, amount of water to be carried therein or to be used by either party, nor how long the pipes were to be continued. Held, That the agreement had referenc only to the surplus water belonging to J. C, and that in case of a deficiency or an increase in the use by J. C. the agreement might be ended; that a valid agreement in perpetuity was not established, but at most a license revocable by J. C., his heirs or representatives. In 1832 H. C., plaintiff's father, and J. C., defendant's father, entered into a contract whereby they agreed to lay down logs or pipes upon the lands of J. C., to carry water from a spring to J. C.'s buildings for his use, and also to the buildings of H. C. for his use, the latter to bear one half the expense and perform half the labor of procuring and laying down the logs and pipe, etc., and that in consideration thereof he should. have a right to take water from said spring through logs and pipes in perpetuity, &c. The complaint alleged that this agreement was in writing. No written agreement was proved and plaintiff relied on parol proof of the declarations and acts of the parties which established the right to use the water of the spring by an adverse possession of forty years. The proof showed that both parties acted in accordance with the agreement, and that J. C. expended money in laying pipes and making improvements in connection with the use of the water, but no specific agreement was proved as to the size of the pipes, the amount of water to be carried through them, how far below the surface they were to be laid, how long they were to be continued, and who was authorized to direct and control them and decide as to their character. No arrangement was proved which authorized J. C. to enter upon the land of H. C. for the purpose of repairing, laying down or improving the pipes, nor was the quantity of water to be used by either party fixed except by the guaging at the spring when the new line of pipes was laid. J. B. Rafter, for applt. Amos H. Prescott, for respt. Held, That the arrangement made had reference to the surplus water belonging to J. C., and it was intended that H. C. should only have the use of that. In case of a deficiency of water by reason of the spring giving out, or in consequence of an increase in its use by J. C. for his own purposes, the agreement might be ended; that the evidence was too vague and uncertain to establish a valid agreement in perpetuity such as the law recognizes. The statute requires an agreement of this character to be in writing and expressing a consideration, and to establish it otherwise-by adverse possession-the proof must be entirely clear as to the nature and specific character of the agreement, so that it can be eventually carried out and enforced. 84 N. Y., 31. The most that can be claimed as to the agreement proved is that it was a license which was revocable at the pleasure of the person granting it, or his heirs or representatives. The right exists to revoke a license which does not partake of the character of a grant where the rights are not affirmatively and definitely fixed and settled. This is so even when a consideration has been paid, if the terms of the license are not of such a nature as to make out a valid agreement which could be enforced in equity. Nor does the fact of performance. render the agreement effectual and valid unless the acts of performance are so clear, definite and certain in their object and design as to refer exclusively to a complete and perfect agreement, of which they are a part execution. 66 N. Y., 227; 84 id., 31. Judgment of General Term, affirming judgment for plaintiff, reversed and new trial granted. Opinion by Miller, J. All con cur. EXECUTORS. POWERS. N. Y. COURT OF APPEALS. Wilder, applt., v. Ranney et al., exrs., respts. Decided Feb. 8, 1884. Testator devised all his residuary estate to his executors with power of sale and directed them to consolidate it in a permanent fund and divide it in accordance with the terms of the will. One of the executors executed a lease of a piece of the real estate containing an agreement to sell, but the other executor refused to sign and subsequently refused to execute the deed. Hdd, That the real estate could only be conveyed by a deed executed by both executors and that the agreement in the lease was not binding upon the one who refused to sign; that the premisses sought to be conveyed were not personal property for the purposes of a sale. Affirming S. C., 16 W. Dig., 478. In January 1879 one R. died in the City of New York, leaving a last will and testament in which he appointed defendants his executors, who were also to act as trustees in the execution of the provisions of the will. He gave and devised to his executors for the uses and purposes mentioned in his will all his residuary estate and directed them to consolidate it into a safe and permanent fund which would yield a regular interest or income, gave them power to sell and convey real estate, loan and invest money as the best interest of his estate might demand, and directed that the entire interest or income thus derived, after paying taxes, repairs to houses and all necessary expenses and disbursements connected with his real estate, should be paid over to his wife for her support through life and after her decease the estate should be distributed mentioned in the will. Letters testamentary were issued to both of the executors and they qualified and entered upon the discharge of their duties under the will. In the residuary estate was a house and lot in New York City. On April 10th R, one of the executors, Vol. 18-No. 17b. This entered into an agreement in writing with plaintiff for leasing said house and lot to him for a term of three years from May 1, 1879 at an annual rental of $1,200. agreement purported to be between the two executors and plaintiff, and contained a stipulation that upon payment by the party of the second part of all claims under the lease, and the further payment of $12,000, the parties of the first part would terminate the lease and convey the property by deed to the party of the second part, provided that such sale is perfected within two years from the date of the agreement. The agreement was executed by R. and plaintiff, the other executor refused to execute it, objecting to the clause giving to plaintiff the option to purchase within two years. Plaintiff was informed by R. of this objection and refusal, but was told that one executor was as good as two. At the end of two years plaintiff claimed to have exercised his option to purchase, and offered to perform, but the objecting executor refused to execute a deed on the ground that he was not bound by the agreement. This action was brought to compel a specific performance. Wm. W. Badger, for applt. E. Countryman, for respts. Held, That as the testator's real estate was vested by the will in the executors it could only be conveyed by a deed executed by both. The will gave the executors a discretion as to the time when and the terms upon which the real estate should be sold and the par |