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dismiss the case; but considering that the question of authority in the mayor and council of the city to make the compromise, and of the alleged fraud in making it, required the power of a court of original jurisdiction to investigate and decide thereon, continued the case in this court until that was done in the proper court. But when this was ascertained in favor of the action of the mayor and council, the suit was dismissed here on the basis of that compromise order. County of Dakota v. Glidden. Opinion by Miller, J.

[Decided Jan. 26, 1885.]

WRIT OF ERROR-NEGLIGENCE-MAIL AGENT NOT PASSENGER.As the statutes of the United States, which authorize the employment and direct the service of mail route agents, do not make an agent so carried by a railroad company a passenger, or deprive him of that character, in construing the Pennsylvania statute giving a right of action for death caused by negligence, a writ of error will not lie to review the decision of the Supreme Court of Pennsylvania holding that an agent so killed was not a passenger within the meaning of the State statute. Price v. Penn. R. Co. Opinion by Miller, J.

[Decided Jan. 26, 1885.]

DEBTOR AND CREDITOR-SATISFACTION OF DEBT.A creditor who receives from his debtor a certificate in writing, not negotiable, of the amount of his debt, and sells the certificate to a third person for value less than its nominal amount, thereby authorizes the purchaser to receive the amount from the debtor, and cannot, after the debtor has paid it to the purchaser, maintain any action against the debtor. A creditor who receives from his debtor a negotiable instrument of the debtor for the amount of his debt, and sells it for its market value to a third person, cannot sue the debtor on the original debt. See Cowdrey v. Vandenburgh, 101 U. S. 572; Foss v. Lowell Savings Bank, 111 Mass. 285; Harris v. Johnston, 3 Cranch, 311; Emblin v. Dartnell, 1 Dowl. & L. 591. Looney v. Dist. of Columbia. Opinion by Gray, J.

[Decided Jan. 26, 1885.]

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CREDITOR'S ACTION—RESCUERS OF DEBTOR'S GOODS. -A judgment creditor has a right of action against the rescuers of the person or goods of the debtor seized by the sheriff to satisfy the judgment, or against one who prevents the seizure of the debtor's goods on execution. In Comyus' Digest, under the head of "Action on the Case for Malfeasance," A 5, it is stated that an action will lie for rescue of a person arrested upon mesne or judicial process, citing May v. Proby, 2 Cro. 419; Hodges v. Marks, id. 486; Mynn v. Coughton, Cro. Car. 109; or of goods taken in execution, citing Fitzherbert's Natura Brevium, 101, 102, Reg. 117. And the action lies by the party to the suit in which the arrest was, citing Hodges v. Marks, 2 Cro. 486; Mynn v. Coughton, Cro. Car. 109; 2 Rolle, Abr. 556, pl. 14, 15. Under the head of "Rescous, D 2, the same author says: "So if a person arrested upon mesne process be rescued, an action upon the case lies against the rescuers by the plaintiff in the suit, for he has the loss and no remedy against the sheriff," referring to cases above cited, and also to Kent v. Elwis, 2 Cro. 242; May v. Proby, 3 Bulst. 200; Congham's case, Hut. 98. In 2 Rolle Abr. 556, pl. 14, 15, it is said: "If a sergeant of London or bailiff of the counter take a man on a capias in process at my suit, and J. S. rescues him out of his possession, I may have a general writ of trespass against him, because the sergeant is, for this purpose, my servant as well as the king's, and because the taking out of the sergeant's possession, he being my servant, is a taking out of mine. Trin. 15, Jac. I., Wheatley v. Stone, adjudged

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on a writ of error at Sergeant's Inn. But I may have action in the case as well. Trin. Jac. I., Speere v. Stone, affirmed same time; S. C. Hobart, 180, sub nom. Wheatley v. Stone." So in Mynn v. Coughton, Cro. Car. 109, cited in Bac. Abr. Execution," O, it was held that if a defendant be rescued after being taken on a capias ad satisfaciendum, the plaintiff may have an action for the misfeasance against the rescuers; for he is the party who hath the loss, and to whom the injury is done, and he ought not to be compelled to sue the sheriff, who may be dead, and if he recover, the rescuers may plead it if sued by the sheriff, so that there is no danger of being double charged. 3 to 7., S. C. Hut. 98, sub nom. Congham's case. In May v. Sheriff of Middlesex, Cro. Jac. 419, which was an action on the case for escape on mesne process, it was held that rescue may be pleaded in bar, but not for escape on final process. On mesne process, the sheriff was not bound to take posse comitatus, and on rescues returned by sheriff on mesne process, process may be awarded against the rescuers, and an action on the case lies against them. S. C. 3 Bulst. 198-201, where a full argument by Coke and Doddridge is reported. The latter refers to Fitz. N. B. 102, to show that the party may sue rescuers. Hodges v. Marks, Cro. Jac. 485, was an action on the case for rescuing plaintiff's debtor out of sheriff's possession after arrest on mesne process, whereby the debtor escaped and went to places unknown. Held good, for the loss is the plaintiff's, as he cannot sue the sheriff; and therefore it is reason that he should have action against those who did the injury to him whereby he lost his process and his means to recover his debt. Kent v. Elwis, Cro. Jac. 241; see also May v. Proby, 3 Bulst. 200; Bonham Strangewaie's case, 5 Mod. 217; Boothman v. Earl of Surry, 2 Term R. 5; Bonafous v. Walker, id. 126; Bentley v. Donnelly, 8 id. 127; See also Yates v. Joyce, 11 Johns. 136; Penrod v. Mitchell, 8 Serg. & R. 522; Mott v. Danforth, 6 Watts, 308; Kelsey v. Murphy, 26 Penn. St. 78; Meredith v. Johns, 1 Hen. & M. 584; Adler v. Fenton, 24 How. 408, distinguished. Findley v. McAllister. Opinion by Woods, J. [Decided Jan. 12, 1885.]

MUNICIPAL BONDS-KANSAS STATUTE-ELECTIONNOTICE-RECITALS INTEREST ESTOPPEL-BILL OF

EXCEPTIONS.-Bonds issued by Anderson county, in Kansas under legislative authority, and in payment of its subscription to the stock of a railroad company, after the majority of the voters of the county had at an election voted in favor of subscribing for the stock and issuing the bonds, recited on their face the wrong statute, but also stated that they were issued "in pursuance to the vote of the electors of Anderson county, of September 13, 1869." The statute in force required that at least thirty days' notice of the election should be given, and made it the duty of the board of county commissioners to subscribe for the stock and issue the bonds, after such assent of the majority of the voters had been given. In a suit against the board on coupons due on the bonds, brought by a bona fide holder of them, it appeared by record evidence that the board made an order for the election thirty-three days before it was to be held, and had canvassed the returns and certified that there was a majority of votes in favor of the proposition, and had made such vote the basis of their action in subscribing for the stock and issuing the bonds to the company; and the court directed the jury to find a verdict for the plaintiff. Held, (1) the statement in the bonds, as to the vote, was equivalent to a statement that the vote was one lawful and regular in form, and such as the law then in force required, as to prior notice; (2) as respected the plaintiff, evidence by the defendant to show less than thirty days' notice of the election could not avail; (3)

the case was within the decision in Town of Coloma v. Eaves, 92 U. S. 484; (4) the rights of the plaintiff were not affected by any dealing by the board with the stock subscribed for; (5) the issue or use of the bonds not having been enjoined for two years and a half between the day of election and the time the company parted with the bonds for value, and the county having for ten years paid the interest annually on the bonds, it was estopped, as against the plaintiff, from defending, on the ground of a want of proper notice | of the election; (6) as the bill of exceptions contained all the evidence, and the defendant did not ask to go to the jury on any question of fact, and the questions were wholly questions of law, and a verdict for the defendant would have been set aside, it was proper to direct a verdict for the plaintiff. In Pleasants v. Fant, 22 Wall. 116, 120, this court said, by Mr. Justice Miller, citing Improvement Co. v. Munson, 14 Wall. 448, that "in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Those cases were cited in Herbert v. Butler, 97 U. S. 319, 320, and this court there said, by Mr. Justice Bradley: "Although there may be some evidence in favor of a party, yet if it is insufficient to sustain a verdict, so that one based thereon would be set aside, the court is not bound to submit the case to the jury, but may direct them what verdict to render." It is true that in the above cases the verdict was directed for the defendant. But where the question, after all the evidence is in, is one entirely of law, a verdict may at the trial, be directed for the plaintiff, and where the bill of exceptions, as here, sets forth all the evidence in the case, this court, if concurring with the court below in its views on the questions of law presented by the bill of exceptions and the record will affirm the judgment. In Bevans v. United States, 13 Wall. 56, a verdict was directed for the United States, in a suit by them on the official boud of a public officer, and the ruling was sustained, the evidence for the plaintiff being all of it documentary; this court saying, by Mr. Justice Strong: "The instruction was therefore in accordance with the legal effect of the evidence, and there were no disputed facts upon which the jury could pass. The same rule was applied in Walbrun v. Babbitt, 16 Wall. 577, to the direction of a verdict for the plaintiff, after oral evidence which this court states "was received without objection, and about which there is no controversy," and on which it says it bases its decision. That was a suit to recover the value of goods transferred in fraud of the bankrupt law. In Hendrick v. Lindsay, 93 U. S. 143, the Circuit Court directed the jury to find for the plaintiffs, in an action on a bond of indemnity, the plaintiff's evidence being all of it documentary, and the defendant giving no evidence. This court said, by Mr. Justice Davis: "There were no disputed facts in this case for the jury to pass upon. After the plaintiffs had rested their case, the counsel for the defendant announced that he had no evidence to offer; and thereupon the court, considering that the legal effect of the evidence warranted a verdict for the plaintiffs, told the jury in an absolute form, to find for them. This was correct practice where there was no evidence at all to contradict or vary the case made by the plaintiffs; and the only question for review here is whether or not the court mistook the legal effect of the evidence." County of Anderson v. Beal. Opinion by Blatchford, J. [Decided Jan. 26, 1885.]

REMOVAL OF CAUSE-CITIZENSHIP-CORPORATIONS. -A bill in equity, filed in the Court of Chancery of the

State of New Jersey by citizens of that State, stockholders in a New Jersey railroad corporation, against that corporation, and a Pennsylvania railroad corporation, and several individuals, citizens respectively of New Jersey and Pennsylvania, and directors in one or both corporations, alleged that without authority of law, and in fraud of the rights of the plaintiffs, and with the concurrence of the individual defendants, the New Jersey corporation, pursuant to votes of a majority of its stockholders made, and the Pennsylvania corporation took a lease of the railroad and property of the New Jersey corporation; and prayed that the lease might be set aside, the Pennsylvania corporation ordered to account with the New Jersey corporation for all profits received, the amount found due ordered to be paid to the New Jersey corporation by the Pennsylvania corporation, or upon its failure to do so, by the individual defendants, and the New Jersey corporation ordered to administer the property in conformity with its charter, and to pay over to the plaintiffs their share of that amount. The defendants answered jointly, denying the illegality of the lease, and removed the case into the Circuit Court of the United States, under the act of March 3, 1875, ch. 137, as involving a controversy between citizens of different States, and a controversy arising under the Constitution and laws of the United States. The Circuit Court, upon the plaintiffs' motion, remanded the case to the State court. Held, that the case was rightly remanded. The New Jersey corporation is in no sense a a merely formal party to the suit, or a party in the same interest with the plaintiffs; but is rightly and necessarily made a defendant. Hawes v. Oakland, 104 U. S. 450, 460; Atwool v. Merryweather, L. R., 5 Eq. 464, note; Menier v. Hooper's Tel. Co., L. R., 9 Ch. App. Cas. 350; Mason v. Harris, L. R., 11 Ch. Div. 97. There is no separate controversy between the plaintiffs and those directors who are citizens of Pennsyl vania. The bill seeks affirmative relief against the directors, as well as against the two corporations, for one and the same illegal and fraudulent act. The single matter in controversy between the plaintiffs and all the defendants is the validity of that act; and unless it is determined that the action of the New Jersey corporation was invalid as against the plaintiffs, there can be no decree against any of the other defendants. All the parties on one side of this controversy not being citizens of different States from all those upon the other side, the citizenship of the parties did not bring the case within the jurisdiction of the Circuit Court. Ayres v. Wiswall, 112 U. S. 187; S. C., ante, 90. No controversy has arisen under the Constituteon and laws of the United States. Neither the bill nor the answer, in terms or in effect, claims any right or involves any question under that Constitution or those laws. The question whether a party claims a right under the Constitution or laws of the United States is to be ascertained by the legal construction of its own allegations, and not by the effect attributed to those allegations by the adverse party. The bill, while alleging the lease made by the New York corporation to be inconsistent with its charter, illegal and void, does not assert or imply an intention to impugn the vali dity of any statute of the State for repugnancy to the Constitution or laws of the United States. And the counsel for the plaintiffs, at the hearing in the Circuit Court, as well as in this court, disclaimed the inten tion to do so. Should any such question arise in the progress of the cause, and be decided by the State court against a right claimed under the National Constitution and laws, relief may be had by writ of error from this court. But in the present condition of the case, the Circuit Court rightly held that it did not involve a controversy properly within its jurisdiction.

Gold Washing Co. v. Keyes, 96 U. S. 199; Smith v.
Greenhow, 109 id. 669. Central, etc., R. Co. v. Mills.
Opinion by Gray, J.
[Decided Jan. 19, 1885.]

MARYLAND COURT OF APPEALS ABSTRACT.*

INJUNCTION-RESTRAINING COLLECTION OF ASSESS

MENT-STATUTE MUST BE FOLLOWED-AMENDMENT

NOT AS TO VOID PROCEEDING.-The appropriation of private property to public use has been held by this court not to be "complete until the proprietor is paid or tendered the value of his property, as ascertained by the inquest or assessment. No preliminary step prior to actual payment or tender so fixes the corporation as to prevent an abandonment of the condemnation or of the enterprise." State v. Graves, 19 Md. 370; Graff v. Mayor, etc., 10 id. 551. In the case of Norris v. Mayor, etc, 44 Md. 604, the court said: "It has long been the settled law of Maryland that both private and municipal corporations, when authorized to exercise the power of eminent domain, have the right to renounce the inquisition and select a more eligible route, or wholly to abandon the improvement or enterprise, at any time before actual payment of the amount assessed, either by commissioners or jury, and until that time no title to the property condemned vests in the corporation. But when this sum is paid or tendered the title vests and the constitutional requirement is gratified." There is a provision in art. 4, § 837, of the Code of Local Laws, and also in the act of 1878, ch. 143, which makes it the duty of the mayor and city council "to provide for collecting and paying over the amount of compensation adjudged to each person entitled, or investing it in the stock of the said corporation, bearing an interest of five per centum per annum, for the use of any such persons, who because of their infancy, absence from the city or any other cause, may be prevented from receiving it before any street, square, lane or alley, in whole or in part, shall be opened, extended, widened, straightened or closed up." The meaning of this statutory provision is so plain and apparent as to need no construction. The appellauts admit, in their answer, that they have neither paid nor tendered the amount of compensation, nor invested it for the benefit of the owners of the property in conformity with the mode prescribed by the statute. Having therefore acquired no title nor right of entry for the purpose of appropriating the property for public uses, when they thus went upon the lands of the appellees without legal authority, they were intruders and trespassers; and when they constituted themselves a tribunal to determine what

amount of assessments should be paid by the rightful owners of the soil, their proceedings were ultra vires and absolutely null and void. In Williamson v. Berry, 8 How. 543, the Supreme Court of the United States, after referring to Att.-Gen. v. Lord Hotham, Turn. & Russ. 219, said: "The rule is that when a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create a necessity for an appeal." And in another paragraph of the same opinion it is further said: "If it acts without authority its judgments and orders are nullities; they are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them; they constitute no justification, and all persons concerned in executing such judgments, or sentences, are considered in law as trespassers." In the English courts it has been so frequently decided, as to have become a *Appearing in 62 Maryland Reports.

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settled principle, which cannot now be successfully controverted, that a void proceeding is so entirely vitiated as to be incapable of amendment. It has no effect whatever. Being absolutely null and void no person can justify under it. Kentworthy v. Peppiatt, 4 B. & Ald. 288; Parsons v. Lloyd, 2 W. Bla. 845; Grant v. Bagge, 3 East, 128; Carratt v. Morley, 1 Ad. & E. (N. S.) 18 (41 Eng. Com. Law); Mitchell v. Foster, 12 Ad. & E. 472; Brook v. Jenney, 1 Gale & D. 567. That when the city commissioner entered upon the property of the appellees and proceeded to impose upon them the burden of these assessments before the city had acquired any right or title by condemnation, he was a trespasser, there can be no doubt; and that his proceedings were not merely voidable but absolutely null and void, seems to be a proposition so clear as to be beyond the scope of controversy. It has been decided that a void proceeding is so entirely vitiated as to be incapable of amendment. It is therefore difficult to perceive how parties, who in legal contemplation occupy the attitude of intruders and tort feasors, can render valid proceedings which were null and void in their inception, by simply putting an offer on the record to pay damages which should have been paid anterior to an entry on the land. The offer itself is not even a tender, for it is an offer to pay the money when called for. Tenders are stricti juris and nothing is presumed in their favor. They must be unqualified and without condition. Brady v. Jones, 2 Dow. & Ry. 305; Glasscott v. Day, 5 Esp. 48;'Huxham v. Smith, 2 Camp. 21; Thomas v. Evans, 10 East, 101; Jennings v. Major, 8 C. & P. 61. But no subsequent act of a wrong-doer can render valid proceedings which were absolutely null and void ab initio. The appellees had these assessments imposed upon them by trespassers on their property. They wish to be relieved from the burdens thus imposed, and have properly invoked the aid of a court of equity. In Steuart v. Mayor, etc., 7 Md. 515, this court has said: "If the proceedings were illegal no sale could have been made under them for benefits, if proper steps had been taken to prevent it." Mayor, etc., v. Hook. Opinion by Yellott, J.

CONTRIBUTORY

NEGLIGENCE-RAILWAY CROSSING NEGLIGENCE-MUST LOOK AND LISTEN-FLAGMAN AT CROSSING-PRESUMPTION OF SELF PRESERVATION.—(1) The general principle is, that where both parties by their negligence directly contribute to the production of the accident, neither has a right to recover of the other for injuries sustained thereby. But there are exceptions to this general rule; and in cases like the present, the exception is, that if the defendant, or those acting for it, had become aware of the perilous situation of the plaintiff, though that peril had been incurred by the negligent or even reckless conduct of the plaintiff, yet the defendant or its agents would be bound to use all reasonable diligence to avoid the accident. But in order that this qualification of or exception to the general rule may be successfully invoked by the plaintiff, he must show knowledge on the part of the defendant, or its agents, of the peril in which he, the plaintiff, was placed, and that there was time after such knowledge, within which to make the effort to save him from the impending danger. (2) In the absence of statutory requirement, it is now well settled, at least by a great preponderance of authority, that there is no legal obligation on a railroad company to keep at the crossings of the public country roads flagmen to give warning to travellers on such roads of the passing of trains. It has been so held by this court, in the recent case of State, use of Foy v. Phil. Wil. & Balto. R. Co., 47 Md. 76, 86; and many decis. ions in the highest courts of the country might be cited in support of that ruling. The track of the rail

road itself is a signal of danger to all those about to cross it; and travellers crossing the rails are bound to exercise reasonable care, having regard to the nature of the crossing, for their own safety and protection. They should, in all cases, before proceeding to cross, carefully look and listen, to ascertain whether a train is approaching; and the failure on the part of those in charge of the train to give the usual or required signals, such as the blowing of the whistle or the ringing of the bell, will not excuse or justify the traveller on the country roads in attempting to cross a railroad track without the exercise of that reasonable precaution of looking and listening for the approach of a train. And if the experiment is made without such precaution, the party acts at his peril; and in default of this precaution, if an accident occurs by a collision with a passing train, the traveller must be held to have so far contributed to his own misfortune as to preclude him the right to recover against the railroad company. This is the established doctrine by the great weight of authority; and a large number of the decisions go to the extent of holding that it is incumbent upon the traveller, at ordinary road crossings, to stop, look, and listen, before attempting to cross the rails; and if he fail to observe this precaution, he forfeits all right to recover for injuries received by collision. This precaution is not only reasonable and proper to be observed on the part of the traveller on the public roads, crossing railroad tracks, for his own safety, but it is equally necessary for the safety of the multitude of the people riding in the railroad trains, liable to be killed by collision of the train with obstacles on the track. Hence courts have been strict and rigid in maintaining the rule, requiring care on the part of those crossing railroad tracks. Of the many decisions made upon the subject we may refer to the following: Ernst v. Hudson R. R. Co., 39 N. Y. 61; Wilcox v. Rome, etc., R. Co., id. 358; Beisiegel v. N. Y. C. R. Co., 40 id. 9; Havens v. Erie R. Co., 41 id. 296; Baxter v. Troy & Boston R. Co., id. 502; Butterfield v. West. R. Corp., 10 Allen, 532; Penn. R. Co. v. Beale, 73 Penn. St. 504; Penn. R. Co. v. Weber, 76 id. 157; Telfer v. North. R. Co., 30 N. J. 188; Bellefontaine R. Co. v. Hunter, 33 Ind. 335; Railroad Co. v. Houston, 95 U. S. 697, 702. But without going the extent of many of the authorities and laying it down as an unqualified rule, applicable to all cases, that the traveller must actually stop before attempting to cross the rails, to look and listen, we hold, with the concurrence of all the authorities, that he must, at least, exercise the reasonable precaution of looking and listening before venturing over the rails; and his failure to observe that precaution is negligence per se; and if he attempts to drive a vehicle across the tracks in view of an approaching train, his conduct is worse than negligent, it is simply reckless. Railroad Co. v. Houston, supra; Telfer v. Northern R. Co., supra; Dascomb v. Buffalo, etc., R. Co., 27 Barb. 227. (3) While it is natural, and as a general rule rational, to presume that a party acts from incentives of self-preservation, this presumption can only be indulged in the absence of proof to the contrary. To instruct the jury that they may, in considering the whold case, "infer the absence of fault on the part of the plaintiff, from the known disposition of persons to avoid injuries to themselves," in the presence of testimony that tends strongly to show the existence of fault, is tantamount to instructing them that they may conclude as they please; that they may find upon presumption and put the evidence aside. There are cases where this presumption may be invoked, and the reports show many instances where it has been done. North. Cent, R. Co. v. Geis, 31 Md. 357; Railroad Co. v. Gladmon, 15 Wall. 407; Oldfield v. N. Y. & H. R. Co., 14 N. Y. 310; Penn. R. Co. v. Weber, 76 Penn. St. 157; Cleveland &

Pittsburg R. Co. v. Rowan and Wife, 66 id. 393. But an indiscriminate use of the instruction given in this case cannot be otherwise than misleading in many cases; and we think the present not a case where it was proper to be given. Maryland Central R. Co. v. Neubeur. Opinion by Alvey, C. J. [Decided June 9, 1884.]

NEW JERSEY COURT OF CHANCERY ABSTRACT.*

RECEIVER-CONTRACT WITH SUCCESSOR NOT LIABLE-CLAIM AS AGAINST FUND.- The complainant made a contract with the receiver of a railroad (the defendant's predecessor) to remove the coal, ashes and cinders from a specified ash-pit on the railroad, and to have therefor the coal, ashes and cinders so removed. He alleges that the former receiver refused to allow him to perform the contract, and that he thereby sustained great damage. Held, on demurrer, that this court would entertain jurisdiction of the suit on the ground that the contract having been made with a former receiver, the present receiver, the defendant, cannot be sued thereon at law, and the claim is against the trust funds of the railroad company, which are still under the control of this court. When damages are sustained by reason of the negligence of a receiver's employees, without personal fault on his part, in matters necessarily or properly committed to them in the management of the trust property, as, for example, in operating railroads, the damages which may arise from the negligence or misconduct of such employees, without his participation therein, are, as between the receiver and the trust estate, to be paid, not by him out of his own money, but out of the trust property. If this is the rule as to torts, it must be equally so also in regard to contracts. Where the receiver's subordinates enter into a contract in the course of their management of the business intrusted by him to them, and damages arise from their breach thereof, those damages, as between the receiver and the trust estate are to be paid out of the latter. Suits for damages in either of the cases named are to be regarded as in the nature of proceedings in rem against the trust estate. In Davis v. Duncan, receiver (U. S. C. C.), 23 Law Reg. (N. S.) 582, it was held that the discharge of a receiver of a corporation by the court, and the restoration of the property to the corporation, without any reservation of jurisdiction as to existing rights of action, discharges the receiver and the property from liability to suit for injuries inflicted through the negligence of agents or employees of the receiver. Were the complainant in this suit to bring suit at law against the late receiver's executors to recover the damages which he claims, it is most manifest that they would, if the action could be maintained against them, have recourse to equity to protect his estate against being compelled to pay the damages, and that equity would protect it accordingly. Unless this be so, who would accept an appointment to the office of receiver of a great business corporation, especially a railroad company, and be liable in his own estate for the consequences of the neglect and misconduct of his numerous employees, in whom he must necessarily confide in the discharge of duties and the transaction of business of the trust, which it is impossible for him to do himself, or even to superintend? In Palys v. Jewett, 32 N. J. Eq. 302, the appellate court found a scintilla of jurisdiction for equity in the fact that it is necessary to ask its leave to bring an action at law against the receiver, and that such permission had been sought and denied, and the parties had thereupon submitted * To appear in 39 N. J. Eq. Reports.

themselves to the jurisdiction of this court. In this case, where there is no remedy at law, and the complainant prays relief from this court in view of the fact, and on the ground that it has control over the trust fund, and can pay him his damages therefrom, I cannot but conclude that this court has jurisdiction. Of course it will be its'duty in every such case to see whether the contract was such a one as this court, having regard to the interest of the trust, and the extent of the power of the receiver to bind it, would have enforced had the complainant applied for the purpose when it was broken, and if it finds it to have been such, and that the breach was without adequate excuse, it will do in the premises what equity and good conscience require. Lewin Trusts, 415. Kerr v. Little. Opinion by Chancellor.

WILL-REMAINDER-LIFE ESTATE.-A non-resident testatrix gave all her estate to her husband for life, "and in the event of his decease, and not till then, to be divided between my step-children," John, William, Julia and James, "or their heirs." William died in the testatrix's life-time, intestate, and having never been married. The property of the testatrix was all personal. By the statute of distributions of William's domicile, his father was entitled to his personal estate. Held, that at testatrix's death William's father became absolutely entitled to the estate in remainder given to William, notwithstanding the fact that he was by the will also entitled to a life estate therein. Bullock v. Downes, 1 Hawk. Wills, 92, 94, 99. Hard v. Turnure. Opinion by Chancellor.

ARBITRATION AND AWARD-LIMITED TO MATTERS SUBMITTED -PARTNERSHIP SURVIVING PARTNER RESISTING LAWSUIT. An award cannot be extended beyond the things submitted. Caldw. Arb. 321. And even if the language of the submission is broad enough to cover a claim subsequently sought to be enforced, yet if it is clearly made to appear that the claim was not before the arbitrators, and that they did not consider it, it has been held repeatedly that the award will not bar it. King v. Savory, 8 Cush. 309; Webster v. Lee, 5 Mass. 334; Hodges v. Hodges, 9 id. 320; Smith v. Whiting, 11 id. 445; Bixby v. Whitney, 5 Me. 192; Buck v. Buck, 2 Vt. 417. (2) A surviving partner who, in good faith and under an honest belief that he has a good defense, resists by litigation, but unsuccessfully, the collection of a claim against the partnership estate, will be entitled to contribution for the reasonable expenses of the litigation as part of the expenses of winding up the partnership affairs. Lee v. Dolan. Opinion by Van Fleet, V. C. [See 87 N. Y.

599.]

CRIMINAT, LAW.

JOINDER OF OFFENSES-WHEN ELECTION NOT COMPELLED INTENT-PRESUMPTION.-An "assault with intent to murder," and an "assault with intent to do great bodily harm, less than the crime of murder," may be joined in the same information in different counts. It is difficult to give a satisfactory reason why these two offenses may not be joined in the same information in different counts. Under the first count the defendant is charged with an intent to do the greatest bodily harm possible, and in the second with the intent to do bodily harm, amounting to an offense greater than a misdemeanor, and less than murder. In both cases the offenses charged are of the same char. acter, were committed at the same time, by the same force, and only differ in the degree of injury inflicted. While only one exists at common law, both are defined by our statute, and the penalties regulated thereby. The one being statutory ouly, furnishes no ground in the case stated for misjoinder. 2 Hale, 173;

1 Leach, 1103; 1 Chit. Crim. Law, 253; Baker v. State, 4 Ark. 56; Com. v. Tuck, 20 Pick. 356; State v. Brady, 14 Vt. 353; State v. Cocker, 3 Har. (Del.) 554; State v. Grisham, 1 Hayw. 12; Josslyn v. Com., 6 Metc. 236; State v. Flye, 26 Me. 312; People v. Austin, 1 Park. Crim. R. 154; United States v. Peterson, 1 Wood. & M. 305; Com. v. Manson, 2 Ashm. 31; McGregg v. State, 4 Blackf. 101; State v. Coleman, 5 Port. 32; Wash v. State, 14 Smedes & M. 120; People v. Baker, 3 Hill, 159; State v. Hogan, R. M. Charlt. 474; Kane v. People, 8 Wend. 203; Carlton v.Com., 5 Metc. 532; United States v. O'Callahan, 6 McLean, 596; Stephen v. State, 11 Ga. 225; Burk v. State, 2 Har. & J. 426. Neither does the fact that the prescribed penalties are different. King v. Darley, 4 East, 179; 1 East, P. C. 408410; Kightly v. Birch, 2 Maule & S. 533; King v. Darley, supra, 174. Nor was the defendant prejudiced in any manner by the joinder upon the trial. By the joinder of the counts he became entitled to the greatest number of challenges allowed by law, and a greater number than he would have been had the information contained a single count for the crime of which he was convicted. Neither does the information present a case in which the people could be required to elect between the counts. (2) When distinct offenses are charged in different counts, but are committed by the same acts, at the same time, and the same testimony must necessarily be relied upon for conviction, the prisoner cannot be confounded in making his defense, and the people ought not to be compelled to elect. People v. Costello, 1 Denio, 83; People v. Rynders, 12 Wend. 425; Kane v. People, 8 id. 203; State v. Smith, 8 Blackf. 489; Wash v. State, 14 Smedes & M. 120 (3) That the injury was committed by shooting was admitted upon the trial; the extent of the injury and the intent with which it was done being the main questions litigated before the jury. "Every sane man must be presumed to contemplate and intend the necessary, natural, and probable consequences of his own acts (3 Greenl. Ev., §§ 13, 14; Rex v. Farrington, Russ. & R. 207; Com. v. Webster, 5 Cush. 305); but when the intent is the gist of the crime, as in this case, the presumption, though a very important circumstance in making the proof necessary upon this point to convict, is not conclusive, nor alone sufficient, and should be supplemented by other testimony to avoid a reasonable doubt. Sup. Ct. Mich., Jan., 1885. People v. Sweeney. Opinion by Sherwood, J. (22 N.W. Rep. 50.)

WITNESS-CREDIBILITY OF, FOR JURY-DEFENDANT IN OWN BEHALF ACCOMPLICE - CONVICTION ON EVI

DENCE OF.—(1) It is the peculiar province of the jury to determine whether any particular witness or witnesses are not worthy of belief, even though they are accomplices; and in passing upon a motion for a new trial, the court will not substitute its own opinion as to the credibility of witnesses for that of the jury how to determine as to the weight or credibility to be given to testimony. In determining the weight or credibility to be given to any statement of fact made by a witness in the course of his testimony, it is the duty of the jury to take into consideration all the evidence, whether circumstantial or otherwise, tending to disprove such statement of fact, and which would also include contradictory statements made by other witnesses. Hirschman v. People, 101 Ill. 568. On the trial of three defendants for larceny, the court instructed the jury "that in this State the accused is permitted to testify in his own behalf; that when he does so testify he at at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded to his testimony,

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