to recover damages on account of fraud arising out of various transactions in the exchanging or sale of farms between the defendant and Alfred and Andrew Stout, the latter being now dead. Alfred and Andrew were colored people, and owned a farm in the town of Hec tor, Schuyler county, together with personal property, and it is claimed that the defendant defrauded them out of this farm and property. The principal acts con. stituting the transactions between the parties consisted of the sale of his farm in Hector to the defendant, by his obtaining from the Stouts a deed of the same; the sale to them by written contract of defendant's farm; the surrender of this contract afterward, and the sale back to them in 1872 of the Hector farm by a written contract with defendant; the surrender of this contract; the alleged fraudulent settlement in the spring of 1873, and the sale of the Stout farm at that time by defendant to a third person. The complaint alleges that all the dealings and transactions between the defendant and the Stouts, above referred to, were fraudulent and dishonest; that they were all part of a scheme on his part to cheat and defraud Alfred and Andrew out of their property, and were all done by defendant for that purpose; that by this means he did cheat and defraud them out of all their property; that Alfred and Andrew signed papers for defendant without reading them, and that they signed some paper relating to the personal property on said farm, which paper was fraudulently obtained by defendant, and may have signed other papers to defendant, which, if so, were also procured for fraud; that the defendant could get them to sign any paper he wished to. The complaint contained allegations of other fraudulent acts, and claimed damages by reason of the fraud and deceit practiced. The evidence taken together does not establish that the relationship of attorney and client existed between the parties. The fact that the defendant was an attorney, and that he was willing to do all the writing without compensation, is not enough to show the existence of such a relationship. The papers which were drawn were in proper form, and uo legal advice was required in regard to the same. No advice was offered or obtained, and the defendant never received a retainer or agreed to act as attorney for the Stouts. It nowhere appears that he assumed the obligations of a professional man in these transactions, or that the Stouts regarded him as acting in that capacity. He was merely engaged as an individual in making a bargain for the sale or exchange of real estate, and evidently drew up the papers gratuitously without assuming to act as attorney for the Stouts. The defendant as an individual had a perfect right to make a bargain with the Stouts as he did, and draw up the papers without charge, and he did not thereby necessarily place himself in the position of the attorney or adviser of those with whom the bargain was entered into. If he in these transactions gained any advantage it did not arise from the relationship of attorney and client, but from the fact that he was dealing with persons of less capacity than himself to make a bargain or transact business. He may have been chargeable with deceit and fraud, and therefore liable if they were proved against him, but under the circumstances there seems to be no valid ground for the contention that he was liable for a vialation of his duty in a professional capacity. As the case stood there was not sufficient evidence to establish the fact that the relationship of attorney and client existed between the defendant and the Stouts, and that question was improperly submitted to the consideration of the jury. In view of the evidence a case involving the principle of undue influence does not arise, nor was it proper to present any such question to the consideration of the jury. Stout v. Smith. Opinion by Miller, J. [Decided Jan. 30, 1885.]

PRO

JUDGMENT -SATISFACTION OF - FOLLOWING CEEDS OF PROPERTY SOLD.-Pending an action to set aside a sale made on credit by agents to a corporation of which they were the managing officers, the agents, as such officers, sold the property to a third party,and subsequently plaintiff obtained judgment setting aside the sale and directing the delivery of the property to it. Held, that after perfecting judgment therein, an assiguor of the plaintiff was entitled to bring an action to recover the proceeds of the sale received by said agents from the corporation. The judgment entitled the plaintiffs' assignors as owners to the immediate possession of the property then in question and required its delivery to them. But the defendants now here had, by converting the property, put it out of their power to comply with the judgment, and that fact is in substance the defense set up. It should not prevail. It would require us to hold that an ineffectual judgment divested a successful plaintiff of his property, and gave the wrong-doers a new advantage. This is not the law. On the contrary, the title is not disturbed until in some way he receives satisfaction for it. Osterhout v. Roberts, 8 Cow. 43; Ball v. Liney, 48 N. Y. 6. Although they have disposed of the property the defendants still hold the proceeds of the sale, and the judgment appealed from required them to pay it over to the person appointed by its owner to receive it. Avila v. Lockwood. Opinion by Danforth, J. [Decided Jan. 20, 1885.]

WILL-DEVISE VOID AS TRUST; VALID AS A POWER -POWER OF SALE-DISCRETION-1 R. S. 729, § 55 - RECEIVER CANNOT EXECUTE.—The will of P. by its terms gave all the estate to his executors, with power to receive the rents and profits, and to sell and convey the same, in their discretion, upon trust, to divide the same or its proceeds, after payment of debts, among the testator's four children. The executors were by judgment in this action brought by one of the beneficiaries removed, and a receiver appointed, with the powers of an administrator with the will annexed. On motion to compel the receiver to sell the real estate, held, that the trust attempted to be created was unauthorized, and so no trust estate was vested in the executors, but the title passed to the beneficiaries named as devişees in fee; that the devise, although void as a trust, was valid as a power, but that the receiver had no authority to execute the power. The statute authorizes a trust to sell lands for the benefit of creditors, and also to sell, mortgage or lease lands for the benefit of legatees. 1 R. S. 729, § 55. But we are of opinion that it is essential to the constitution of a valid trust for either of these purposes that the power conferred upon the trustee to sell, mortgage or lease the trust estate must be absolute and imperative, without discretion, except as to the time and manner of performing the duty imposed, and that it is not sufficient to invest him with a merely discretionary power of sale, which he may not exercise at his option and which does not operate as a conversion. The sale or other disposition mentioned in the statute must be the direct and express purpose of the trust. Any other construction would open the door to an evasion of the manifest intention of the Legislature to prevent the separation of the legal title and beneficial interest in lands through the medium of a trust, except in the specific cases and for the precise purposes enumerated in the statute. In the will in question not only is the power of sale conferred upon the executors discretionary, but it is apparent that it was incidental to the testator's main purpose in constituting the trust, viz., to provide for a division of his estate by his executors. Nor can the trust be sustained as a trust to receive the rents and profits of land under the third subdivision of section 55. There is no direction to

apply them to the use of any person or for any period. When received they are distributable, not as rents and profits, but because incorporated into the mass of the estate, to be divided by the executors. See Heermans v. Burt, 78 N. Y. 259. The only remaining question relates to the authority of the receiver to execute the power of sale vested in the executors. The power of sale was a power in trust, which although discretionary, could on the death or removal of the executors be executed under the discretion of the court by a trustee appointed for that purpose. 1 R. S. 731, §§ 71, 102; Leggett v. Hunter, 19 N. Y. 445, and cases cited; Roome v. Philips, 27 id. 357. But we are of opinion that by the true construction of the judgment appointing the receiver, he was invested with no greater power than that of administrator with the will annexed. The point must now be deemed to be settled that a discretionary power of sale vested in executors cannot be executed by an administrator with the will annexed. He succeeds to the power of sale given to the executor, only when the direction to sell is imperative. Mott v. Ackerman, 92 N. Y. 540, and cases cited. Cooke v. Platt. Opinion by Andrews, J. [Decided Jan. 20, 1885.]

CREDITOR'S ACTION WHAT PROPERTY MAY BE REACHED BY-TITLE IN THIRD PERSON-CONSIDERA

TION PAID BY DEBTOR-RESULTING TRUST.-A judgment creditor's action, whether instituted under the provisions of the Revised Statutes (2 R. S. 173, §§ 38 et seq.) or the Code of Civil Proceedure (§§ 1871 et seq.) can reach only property belonging to, or things in action due to, the judgment debtor, or held in trust for him. Here the sole fact on which the plaintiff relies is the alleged payment of consideration by his debt or for property conveyed at his instance to the other defendant. But as between the two that circumstance is immaterial. The property is as against him her own absolute property, whether he paid for it, or whether, as she asserts, the judgment was made from her own estate. The debtor never had the title, nor was it at any time subject to the plaintiff's judgment or execution. Nor would it be if the deeds under which she holds should be cancelled. The debtor had neither title nor any legal or equitable interest to which either could attach. This follows from the statute, which declares (1 R. S. 728, §51) that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, "no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance." As his case is presented by the pleadings, the plaintiff therefore must fail. Garfield v. Hatmaker, 15 N. Y. 475; McCartney v. Bostwick, 32 id. 53; Everett v. Everett, 48 id. 218. The statute last cited however contains an exception, and provides (§ 52) that such conveyance shall be deemed fraudulent as against the creditors at the time of the person paying the consideration, and declares that "where a fraudulent intent is not disproved a trust shall result in favor of such creditors, to the extent that may be necessary to satisfy their just demands," and the respondent seeks to maintain the judgment in the case before us as one coming within this statute. It should, we think, be a sufficient answer that it was not put upon that ground by the complaint, nor at the trial. But waiving that, we are not able to see how the claim can be supported. The doctrine to be applied is well settled. To make out such a trust the money must be paid at or before the execution of the conveyance, and not after. Jackson v. Moore,

Cow.

706; Botsford v. Burr, 2 Johns. Ch. 405; Steere v. Steere, 5id. 1; Jackson v. Morse, 16 Johns. 197; Rogers v. Murray, 3 Paige, 390, 391; Russell v. Allen, 10 id. 249. The

whole foundation of a trust of this nature is the payment of the money by the cestui que trust, the real, not the nominal purchaser, and so its conversion into land. The respondent cites Wood v. Robinson, 22 N. Y. 564; McCartney v. Bostwick, 32 id. 53, supra; Baker v. Bliss, 39 id. 70; Ocean Nat. Bank v. Olcott, 46 id. 12. In each of these the entire consideration for the property sought to be reached was paid by the debtor at or before the conveyance, and so they came directly within the statute (supra), and entitled the creditor to the benefit of the trust declared in his favor. On the other hand, the doctrine that the trust, in order to exist, must have been coeval with the deeds, and that after one person has made a purchase with his own money or credit, no subsequent transaction, whether of payment or reimbursement, can produce such a trust in his favor, is well settled. Says Chancellor Kent in Botsford v. Burr, supra: "There never was an instance of such a trust so created, and there never ought to be, for it would destroy all the certainty and security of conveyances of real estate. * ** The trust results from the original transaction at the time it takes place, and at no other time; and it is founded on the actual payment of money, and on no other ground." And in Rogers v. Murray, supra, it is said to be "impossible to raise a resulting trust so as to divest the legal estate of the grantee by the subsequent application of the funds of a third person to the improvement of the property, or to satisfy the unpaid purchase-money." Niver v. Crane. Opinion by Danforth, J. [Decided Jan. 20, 1885.]

EVIDENCE-DECLARATION OF GRANTOR AS AGAINST GRANTEE ILLEGAL EVIDENCE NOT HARMLESS-DEED -RESERVATION CANNOT BE PROVED BY PAROL—(1) Evidence of declarations made by a former owner before he acquired title to the property as to what he intended or wanted to do when he should acquire it, and his motive in acquiring it, were, we think, inadmissi ble as against his grantee. It is only when the party making the declarations has at the time of making them the title to the property, that such declarations bind his successor in interest. We are not referred to any authority holding that declarations made before or after that time have that effect. An actual agreement between him and the party from whom he afterward obtained title might be effectual, but no such agreement was shown. A declaration to a stranger is mere hearsay. (2) The defendant was allowed to prove under objections that Phineas Hutchins was supposed to be worth $15,000, while he testified that he himself was not a man of property. The evidence as to the wealth of Phineas was clearly irrelevant and improper, and cannot be said to have been harmless. "Illegal evidence that would have a tendency to excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgment of the jurors in any degree, cannot be considered harmless" (Anderson v. R. Co., 54 N. Y. 334), and as remarked by Learned, J., in his dissenting opinion at General Term in the present case, "nothing could be better fitted to divert the minds of the jury from the true issue than a pathetic contrast between the widow of a rich brother and the poor defendant." (3) A reservation by parol of a life estate of the grantor, in case of a deed in fee, cannot be sustained on any principle. The proposition was not that the deed was to secure a debt which the defendant should have all his life to pay, but that independently of the question of mortgage the promise of a life estate was valid. This is attempted to be sustained by coupling it with the supposition that in consideration of and relying upon such promise, the defendant kept possession and made valuable improvements upon the land, and the case of

[Decided Jan. 20, 1885.]

MAINE SUPREME JUDICIAL COURT AB

STRACT.*

TRESPASS-AB INITIO-FAILURE TO LEAVE ENOUGH HAY TO KEEP STOCK.-When an officer in the attachment and removal of hay does not leave the requisite amount to keep the stock which the defendant owns, exempt from attachment, at the time of the attachment, he thereby becomes a trespasser as to so much as is taken beyond what is authorized by law, but not ab initio as to all the hay taken. The authorities upon this point, both English and American, are that it is only for the excess that the officer would be liable. The distinction running through the more modern cases-not at variance with those of earlier date-is marked, that there may be an abuse of authority by an officer which will affect his acts, and render him liable as a trespasser, only in relation to a portion of the property, especially when the same is capable of division, and where, in reference to that property, the acts done in excess may be distinguished from those done in pursuance of authority. Wheeler v. Raymond, 130 Mass. 247; Cone v. Forest, 126 id. 101. Where the act done is wrongful, but is so merely as to a part of the goods, no wrong being done as to the residue, the wrong-doer is a trespasser as to that part of the goods only in respect of which the wrongful act was done. As in the case of Dodd v. Monger, 6 Mod. ern, 215, where several barrels of beer were distrained for rent, and the distrainer drew beer out of one of them, Lord Holt held that it rendered him a trespasser ab initio only as to that single barrel. In Harvey v. Pocock, 11 M. & W. 744, it was decided that where a landlord distrained for rent, with other things, goods not distrainable, the distrainer was a trespasser only as to the goods which were not distrainable. Lord Abinger, C. B., alluding to Dod

V.

Monger, 6 Mod. 215, and to the early case of Six Carpenters, 8 Coke, 146, says: "The case in 6 Modern is undoubtedly a very strong authority for the defendants. The Six Carpenters' case leaves it an open question how far the party becomes a trespasser ab initio as to the whole distress by an excess as to part. It is very reasonable that he should not, but that his liability should be limited according to the doctrine laid down by Lord Holt." The same views are held by the present chief justice of this court in Seekins v Goodale, 61 Me. 404, wherein he says: "We think a fair construction of the rule established in the Six Carperters' case makes the defendant liable as a trespasser ab *Appearing in 76 Maine Reports.

initio only for the sale of so much of the goods as were sold in excess, and not for those sold in pursuance of authority." The same doctrine is stated in 1 Smith Lead. Cas. *219, as follows: "But if there be a seizure of several chattels, some of which are subsequently abused, and the rest not, the seizure is, or becomes, illegal only as to the part which it was unlawful to seize or which was subsequently abused, and the seizure of the rest continues legal." Wentworth v. Sawyer. Opinion by Foster, J.

WILL-DEVISE-LIFE-ESTATE.- A testator devised real estate to his widow to hold "during her life for her maintenance, but not to sell the same, the said real estate to go to John Mehan at her death, if any remain." Held (1), that the widow took a life estate by express words of limitation, without any power of disposal annexed. Leighton v. Leighton, 58 Me. 69, 70; Warren v. Webb, 68 id. 135, 136; Paine v. Barnes, 100 Mass. 471; Taggart v. Murray, 53 N. Y. 236. (2) That the words "if any remains" are by implication in opposition to the language of the testator, in the same clause by which the widow is expressly prohibited from making sale of the real estate, apparently inconsistent with every other expression in the will, and therefore cannot be held to imply a right of disposal. It will be noticed that in many of the cases where such words as "if any remains," "if any shall remain unexpended," and other similar expressions, are held to imply the right of disposal, the testator had, either expressly or impliedly, authorized the disposal of his estate by the use of other language, and with which these expressions were only in harmony in conveying the intent of the testator. Ramsdell v. Ramsdell, 21 Me. 288; Harris v. Knapp, 21 Pick. 416; Leighton v. Leighton, 58 Me. 69; Scott v. Perkins, 28 id. 35; Burleigh v. Clough, 52 N. H. 267. And our court, in referring to the case of Harris v. Knapp, supra, says: "The court gave great force and effect to the phrase, 'whatever shall remain at her death,' deducing from it the conclusive implication that the devisee had the right to dispose of the property. The use of the word 'disposal' in the will however undoubtedly contributed to the conclusion arrived at by the court." Warren v. Webb, supra. From a careful examination of the provisions of this will we are satisfied that it was the intention of the testator that his widow should take a life estate, with no power of conveying the fee: that the words "if any remains," taken in the connection in which they are found, must yield to the more positive and unequivocal declaration of the testator,. "but not to sell the same," and which is in harmony with the other provisions of the will. Birmingham v. Leson. Opinion by Foster, J.

JUDGE DISQUALIFICATION - RELATIONSHIP. - A judge of probate appointed an administrator with the will annexed upon the estate of a testatrix, whose deceased husband was the judge's uncle. Held, that the judge was legally competent to make the appointment, the relationship between him and the testatrix not rendering the appointment void. At the older common law personal interest formed the only ground for challenging a judge. Bou. Law Dic. 66 Incompetency." It was not objectionable for a judge to sit in a cause to which a relative was a party. The public sense has become finer in that respect than formerly. According to Chancellor Walworth's statement, Chancellor Kent sat in a cause where his brother-in-law was personally interested, and in another case where his own brother was the complainant. In re Leefe, 2 Barb. Ch. 39. He presided probably because there was no other court that had jurisdiction of the cases. The historical phase of judicial disqualification is learnedly presented by Folger, J., in the case of In re David R.

Ryers, 72 N. Y. 1; S. C., 28 Am. Rep. 88. The true test is whether the relative has an interest as a party to the cause or proceeding before the judge, or stands in the condition of a party. In Aldrich, appellant, infra, it is said: "There is not the same reason that the remote or contingent interest of a relative or connection should exclude the judge from acting. It is only when the relative is a party or has a direct or apparent interest in the matter to be passed upon by the judge, that the condition arises that works a disqualification." As said by Rapallo, J., in the case of In re Dodge & Stev. Manuf. Co., 77 N. Y. 101; S. C., 33 Am. Rep. 579: "Judgments and proceedings of courts against corporations would stand upon a very precarious foundation in these days if they could be overturned on discovery that some judge who took part in them was related by blood or marriage to some stockholder of the corporation." It would be difficult for a judge to know when he could safely sit in cases where large corporations are parties. Even where the judge is disqualified to act from his own personal interest, it must be something more than a merely possible and theoretical interest. It must be an actual interest, however small, direct or indirect. He can do merely formal acts when a relative is interested as a party. Cooley Con. Lim., § 413. The pecuniary interest of the judge's relatives was not whether A. or B. be appointed, but merely what a suitable person should be. Chancellor Walworth decided that it was not incompetent for a vice-chancellor to appoint his son upon a committee of lunacy, it being merely a ministerial service to be performed under the direction of the court. In re Hopper, 5 Paige Ch. 489. See Nettleton v. Nettleton, 17 Conn. 542; Hall v. Thayer, 105 Mass. 219; Matter of Aldrich, 110 id. 189, distinguished. Russell v. Belcher. Opinion by Peters, C. J. [See 33 Am. Rep. 346; 29 Eng. Rep. 330; 91 N. Y. 284.-ED.]

JUDGMENT-NONSUIT NO BAR TO SECOND SUIT.-A judgment of nonsuit is not a bar to a subsequent action for the same cause. This view is in full accord with the cases adjudged by courts that proceed according to the course of the common law. Morgan v. Bliss, 2 Mass. 111. In Knox v. Waldoborough,5 Greenl.185, it appeared that the parties in a former suit for the same cause of action signed an agreed statement of facts, and stipulated that if the facts did not warrant the action the plaintiff should become nonsuit, and the court held that a judgment of nonsuit entered according to the stipulation was no bar to the action. In that case the judgment of nonsuit was held to be no bar, because the facts touching the rights of the parties had not been adjudged by any tribunal. The court in the original suit simply determined the law applicable to the facts agreed. So in the action wherein a judgment of nonsuit was rendered is claimed to bar this suit, the undisputed facts were held insufficient in law to support the action, but were not adjudged, that is, decided in the defendant's favor. So too a nonsuit upon an agreed statement of facts was held to be no bar to a subsequent suit. Homer v. Brown, 16 How. 354. It has been said that a "nonsuit is but like blowing out a candle, which a man at his own pleasure lights again." March Arbitraments, 215; Clapp v. Thomas, 5 Allen, 158; Bridge v. Sumner, Pick. 371; Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121; Audubon, Ex. v. Excelsior Ins. Co., 27 N. Y. 216; Eaton v. George, 40 N. H. 258; Derby v. Jacques, 1 Clifford, 425; Jay v. Carthage, 48 Me. 353. Pendergrass v. York Manufacturing Co. Opinion by Haskell, J.

LICENSE-TO REMOVE TIMBER-ASSIGNMENT-CHATTEL MORTGAGE-FILING.—(1) A written permit to cut and remove timber from land running to two permittees may be wholly assigned by one of them, if he is

authorized to act, and does act for both, although he sigus the assignment by his own individual name, and the assignment does not itself disclose that he is acting for or upon the authority of the other permittee. The authority of the one to act for both may be shown by oral evidence. The law in many cases admits evidence to show the real and actual capacity in which persons have set their names to written contracts. Had the words "for self and Colbath" been added to Foss' name the assignment would have been complete. They may be supplied by oral proof. Higgins v. Senior, 8 M. & W. 834; Huntington v. Knox, 7 Cush. 371. It is competent to show that contracting parties were agents of other persons, so as to give the benefit of the contract to or charge its liabilities upon the unnamed principal. An undisclosed principal may be shown to be the real party in a transaction in which the agent is the only ostensible person. 1 Whart. Con., § 202, and numerous cases in note. Lerned v. Johus, 9 Allen, 419; Lamson v. Russell, 112 Mass. 387; Cushing v. Rice, 46 Me. 303; Coleman v. Bank, 53 N. Y. 393; Hutton v. Bulloch, L. R., 9 Q. B. 572. We think the present case falls within the circle of the doctrine marked out by the authorities. (2) An assignment in a mortgage form of a permit to cut and remove timber need not be recorded as a chattel mortgage, so far as cuttings are concerned which are made after the assignment; aliter, as to cuttings made before the assignment. (3) The same rule applies where the permit extends to hemlock trees that have been already cut down and left, with the bark peeled therefrom promiscuously upon the land. (4) The statutory requirement that chattel mortgages shall be recorded applies to equitable as well as to legal mortgages. Such was no doubt the idea of the court in Shaw v. Wilshire, 65 Me. 485. Barrows, J., there says: "We see no reason to discriminate between an equitable mortgage and one in which the condition is more fully expressed." If equitable mortgages are not to have the privilege of a registration, we do not see how such mortgages can be very available or even valid, unless a delivery is taken and kept. It may be said that a mortgage in the form of absolute sale gives no indication of the nature of the condition annexed. But many legal mortgages do not upon their face fully disclose the facts. The very fact however that an instrument in the form of absolute sale is recorded, is a notice that some condition is annexed. What the condition is may be ascertained under the statutory modes provided for the purpose. A sale and a separate written defeasance given back constitute even a legal mortgage. But in such case the vendee has no means of requiring the separate defeasance to be recorded. We make no distinction of the kind, set up by the plaintiff, in the matter of the registration of deeds of real estate when regarded as equitable mortgages. Putnam v. White. Opinion by Peters, C. J

ILLINOIS SUPREME COURT ABSTRACT.*

TENDER-MUST BE KEPT GOOD.—(1) A tender of the amount due from the purchaser of land to his vendor, who is not in a position to make a clear title, according to his bond, by reason of an incumbrance placed by him on the premises sold, to be availing to stop the accruing of interest after such tender, must be kept good. To have that effect the tender must ke kept in money, at all times ready to be paid, and subject to the order of the creditor at any time when he shall comply with his contract so as to be authorized to receive it. (2) The money tendered must at all times be kept in readiness for the creditor, and not be used by *To appear in 109 Illinois Reports.