ceptions to writing and present it to the will be ascertained that when the legislature court for allowance. So far this would intended that a power or duty should be deseem conclusive against the authority of the volved upon the judge as distinguished from judge in vacation. But it is held that the the court, apt words are used to express that next clause extends the limitation, and con- legislative intent. Thus, in section 2573, fers upon the judge out of term equal power "all issues, by consent of parties, may be rewith the judge during the term. "If true fused by the court, or by a judge thereof in it shall be the duty * * * of the judge vacation." "Sec. 2574. When the parties do or court before whom the case was or is be- not consent,, the court, or the judge thereof ing tried, to allow and sign it." The use, in vacation, may refer the issues when the disjunctively, of the words "judge" and parties are not entitled to trial by jury." "court," it is thought fully sustains this "Sec. 2887. The court, or the judge thereof in view. This, however, leaves out of consid- vacation, may appoint a receiver." "Sec. eration another paragraph of the same sec-2892. The court, or a judge thereof in vacation, which expressly confirms to the "court" tion, may make proper orders for the preserjudicial action on the bill, thus: "If the vation of property." "Sec. 2913. The atwriting is not true, the court shall cancel it,|tachment may be granted by the court in or suggest the correction to be made, and it | which the action is brought, or by the judge shall then be signed as aforesaid." If the thereof." "Sec. 2921. The injunction may bill is presented for allowance and signature be granted at the time of commencing the in the vacation of the court, how is it pos-action, by the district court, or by a judge sible for the court to determine whether it be thereof." "Sec. 2932. A party may apply to true or false. This duty of determination is not devolved upon the judge in vacation, and the exercise of that duty is plainly a precedent condition to the signing of the bill. So it is that by considering the section in its entirety, rather than in segregated paragraphs, a conclusion is reached which gives effect to it as a whole, and avoids the difficulties and contradictions involved in the opposite interpretations. Considering that these embarrassments necessarily arise from that interpretation, it is fairly to be presumed that the legislature, in the use, disjunctively, of the words "judge" and "court," simply intended to present an alternative of terms implying the same thing, instead of that particular form of alternative which offers a choice of the one thing or the other. Just as in common speech, we say that a certain instrument is a “deed” or “conveyance,” a certain pleading, a "petition" or "declaration," or, as in section 3225, where it is obvious that the word "judge" is used synonymously with "court. The grand jury shall be charged by the judge, and, in the same section "after the charge by the court, the grand jury shall retire." Or, as in section 2553, "the court shall give such instructions upon the law to the jury as may be necessary, which instructions shall be in writing, and numbered and signed by the judge." Now, it is certainly unquestioned that the judge in vacation cannot charge the grand jury, and equally so that the judge i vacation cannot number and sign the instructions. It is well under- served. It presupposes adjudication, in the stood, even by those who make no pretense to attainments in philology, that in certain connections words may coincide, and so be interchanged, when they cannot be interchanged in other connections. In harmony with this familiar canon, and impressed by the necessity of giving effect to the entire section, I conclude that the words "judge" and "court," as they appear in section 2649, are the precise equivalents of each other, identical in use and meaning. By further examinations of the statutes it the court in which an action is pending, or to a judge thereof, or to the supreme court, or to a judge thereof, to vacate or modify an injunction." "Sec. 3136, subsec. 2. The undertaking shall be in such sum as may be prescribed by a court of record, or by a judge thereof." "Sec. 3068. The court, or a judge thereof, may make an order for the examination of witnesses de bone esse. These several sections, taken at random, omitting others equally illustrative, sufficiently prove the proposition previously submitted, that when the legislature designed to confer a power or discretion upon a judge in vacation, words appropriate to that end, and of no doubtful import, are habitually employed. Moreover, there seems to me, to be a peculiar fitness in requiring that such judicial action as may be had in the allowance of the bill should be by the court. The exception is a part of the trial. While it may formally be drawn up after the trial is over, it must be taken at the time the adverse ruling is made by the court, after it is prepared and tendered for allowance. The same tribunal, the same incorporeal, political being which made the ruling, should adjudicate the questions arising on the motion for allowance. To allow, carries with it the idea of determination; to determine, to decide whether the ruling recited in the bill was made; whether the testimony narrated is correctly rehearsed; whether the instructions embodied (if verbal) were given; whether the exception presented was re same sense that is implied in an order which recites that "the court allows a motion," or "the court allows a claim." The signature of the judge is one of the evidences of allowance; or perhaps, more accurately speaking, an attestation that the writing which precedes it is true. However metaphysical or even fanciful these reflections may be, and therefore illy adapted to the practical aims of the law, I cannot believe that the practice of signing and allowing and signing bills of exceptions in vacation is founded in a wise policy. The reasons of policy which forbid there be other findings which are not affected it do not apply to those orders which the by the conflict between those which are injudge is permitted by law to make in vaca- consistent, and which of themselves and by tion. As a rule such orders can be made their own force are sufficient to constrain a only on notice to the opposite party, or, if judgment the one way or the other. then it made without notice, they are provisional occurs to me that the reason of une rule and take effect only upon the execution of ceases. It may be true that in the case at a bond of indemnity. It is not required by bar there is an inconsistency between the law, that the party excepting shall give to sixth and the eighth paragraphs of the spehis adversary notice of the exact time at cial verdict, but those findings relate wholly which he will tender his bill. For this reason to the question of negligence. The controlthe tender and motion for allowance, and the ling factor in this case, and that which preallowance itself, should be in open court, at cedes all other questions, is, was Stubbs the the place which is designated by law for the "gang boss," a fellow-servant of McBride, court to be holden. That place every at- or was he the representative of the defendtorney knows, and the public know it. The ant corporation. If the former relation beattorney's professional duties require him tween them existed, it is profitless to investo be there, and he thus has a fair opportunity tigate further. As between fellow-servants offered him to be heard against the bill, if in the same line of service each one is the objectionable. The experience of every law-agent of the other, agreeing to risk the conyer has taught him that often his client's tingencies produced by the neglect of any one highest interests depend more upon the vigi- of them, and neither is the agent of the maslance of his attorney in scrutinizing a ten-ter. It was found by the jury that Butler dered bill than in guarding his rights during was the foreman in the employ of the dethe trial. It is idle to say that the judge is honest and will not allow errors to creep into the bill. The judge is no less fallible than the balance of mankind. His memory may be at fault, and is, in fact, more at fault than the memory of the attorney who conducts the trial of the cause. It surely follows that if he is permitted by law to allow and sign in vacation, then he may do so at any place within his district, at the court house, at his residence, at an hotel, on the road, in the cars, or in a coal mine. His power is limited only by the imaginary lines of his circuit, and the extent of his vacation. There is absolutely no other restriction. At mid-dications to which my attention has been diday or at midnight, at his meals or on his couch, at church or at the theater, in his oflice or on his ranch, on the hustings or in the caucus, he may exercise the functions of his exalted station, regardless of environments. To affirm that the legislature ever intended that these things should become possible, solicits our assent to a proposition which imputes to a co-ordinate branch of the government, what seems to me to be a disregard of the interests it assembled to con serve. Entertaining these views, the only proper judgment which I conceive the court can render is to dismiss the petition in error; but since it is held that the record is properly here, I deem it at least not foreign to my duty to express an opinion upon the merits of the cause. Here, again, I am reluctantly enough compelled to differ from my associates. It may be accepted as a correct principle that when the special findings of a jury are inconsistent with each other the court should award a new trial. The philosophy of this is easily discernible. Inconsistent findings neutralize each other, and therefore leave nothing on which the court can render judgment. But this rule cannot, as I think, either on principle or authority, be said to have universal application. If fendant, that he was present at the shop on the day of the accident, and that he was subject to the general direction of the master mechanic, who was absent, in superintendence of the work in which McBride was engaged at the time of his injury. On this finding, I conclude that Butler was the alter ego, or the vice-principal, and that only his acts or omissions can make the master responsible under the doctrine of respondeat superior. The mere fact as found by the jury that Stubbs, as "gang boss," had “immediate control of the men working in the shops," cannot, in the light of any adju rected, nor in the light of the understanding common to those who have observed such work, be said to invest him with that extended authority necessary to fix his status as a vice-principal. To say that he had immediate control may in a limited sense imply subordination on the part of those who worked in his gang. But the subordination, as here understood, is not suflicient. There must be, according to my understanding of the weight of authority, a control in its nature and distinctive features departmental. The conductor of a train, it is said, has a control of this character. In the moving and management of his train his authority is as nearly supreme as that which is exercised by any one who is himself a subordinate. Beneath him in the grade of service are the engineer and brakeman, and, if either one of them is injured by his negligence, the superior is responsible. No such departmental control or extended authority can be said to have been delegated to Stubbs. The master mechanic had the general superintendence of the shops. In his absence Butler, the foreman, was the representative of the common employer. In the constitution of a corporation charged with the conduct or management of multitudinous interests necessity demands that there should be a division of its powers and duties confided to several departments. [ and that the rental price of the rooms for his Each department represents a unit of the or- office is a necessary and proper expense, and ganization. It is presided over by one who should be liquidated out of the contingent may be called the chief, who, in his own appropriation. The auditor in his answer sphere of authority, is the visible representa- justifies his refusal to allow the claim and istive of the invisible master. In him the sue his warrant upon the alleged ground that power of control is given. Through him the territory had, prior to the incurring by authority is exercised. He is the accred- the attorney general of the obligation for ited agent of the principal. For his neg- rent, prepared and designated rooms in the ligence alone can the principal be held re- capitol building for the use of the attorney sponsible. To carry the doctrine of agency general, free of rental or other charge, and further would be not only to advance the law contends that no rooms for an office, except beyond all known borders, but would estab- those provided by the territory, are necessary lish responsibilities dangerous to the exercise to enable the relator to discharge his official of the most efficient means of commerce. duties. Other pleadings were filed by the Being thus profoundly convicted that Stubbs, parties, not varying, however, from the leas shown by the verdict, was but a fellow-gal effect of the averments of the petition servant with the person so painfully and so and answer. Pursuant to the act of March unfortunately injured, the maxim of qui 9, 1888, the district court reserved and cerfacit per alium is wholly inapplicable. In tified to this court for its decision three sevthis view it is immaterial whether Stubbs eral questions arising upon the pleadings, of was negligent or not, or, if he were, in what which, however, this court does not deem it degree, and therefore equally immaterial necessary to respond to but one. That queswhether the findings of the jury on this tion is, "Has the auditor, defendant herein, issue were consistent or otherwise. All ul-discretionary power to allow and audit the terior inquiry is precluded by the finding claim involved in this proceeding?" The that the master mechanic or the foreman had departmental control. I am therefore of the opinion that if the case were properly here the judgment of the district court should be affirmed. (3 Wyo. 241) TERRITORY ex rel. DONZELMAN, Attorney solution of this question depends upon section 10 of chapter 90 of the Session Laws of the Tenth Legislative Assembly, construed with reference to the uncontroverted allegation of the auditor, that rooms had been set apart in the capitol building for the use of lows: "That the sum of $6,600, or so much the attorney general. Section 10 reads as folthereof as may be necessary, be, and the same is hereby, appropriated out of any funds in the territorial treasury not otherwise apSess. Laws Wyo. 10th Leg. Assem. c. 90, § 10, propriated, to pay the contingent expenses of provides "that the sum of $6,600, or so much there-territorial oflices for the two years next enof as may be necessary, be, and the same is hereby, appropriated out of any funds in the territorial treasury not otherwise appropriated to pay the contingent expenses of territorial offices for the two years next ensuing, as follows, to wit: * For the office of the attorney general of the territory, $600." Hell that, the attorney general having been provided with offices free of rent in the capitol building, the auditor cannot be compelled to audit and allow out of such fund a claim incurred by the attorney general in the rental of other rooms. * * Questions reserved and certified from district court, First district. Hugo Donzelman, Atty. Gen., for relator. Bryan, Seeters & Stewart, for defendant. suing, as follows, to wit: For the office of the governor of the territory, $2,400; for the office of the secretary of the territory, $2,000; for the office of the attorney general of the territory, $600; for the office of the territorial auditor, $800; for the office of the territorial treasurer, $800." With reference to So much of the question as appertains to the discretionary power of the auditor to audit the claim, it may at once be answered that the duties of this office, as prescribed by law, do not allow him a discretion to audit or not, as he may choose, this or any other claim. He is charged, not only by law, but by the SOUFLEY, J. The attorney general of the very nature of his office, with the duty of auterritory filed in the district court of the First diting or examining accounts, comparing judicial district his petition against the au- charges with vouchers, and thereafter of alditor of the territory for the writ of manda-lowing or rejecting charges and stating balmus, to compel the latter to audit a claim of "To audit" implies to hear, and upthe former against the territory for expense on the hearing to adjust, or to allow, or to incurred in the rental of rooms for an oflice reject, or otherwise decide, according to the for the use of the attorney general, and also nature of the claim. A mandamus will to compel the auditor to issue his warrant clearly lie to compel the auditor to act, or, in upon the treasurer for the amount of the other words, to give audience. How far claim. It is alleged by the relator that the forth, if at all, a court can control his judgtenth legislative assembly made an appropri- ment or discretion, after audience given, is ation of $600 as a contingent fund, to be not necessary here to be decided, and for that used and expended by him as attorney general reason is not decided. The nature of this during the two years intervening between case, and the limited scope of the question the 31st March, 1888, and 31st March, 1890, reserved, brings this court immediately to ances. to pay the balance, without security, and reserving no lien. The wife's testimony as to the amount of the consideration differed from that recited in the deed, and she testified that the third person gave his note therefor. The third person did not take possession of the property, but on the following day recouveyed it to the wife, in consideration, as both he and the wife testified, of the cancellation of his note, and the payment of a certain sum as profit. The third person had not examined the title, did not know the amount of interest due on the mortgage which he purported to assume, and afterwards spoke of the transaction as the manner in which the husband put the title to his property in his wife. Held, that the transaction was fraudulent as to the husband's creditors. 4. Such transaction is fraudulent as to creditors of the husband whose claims are represented by and which the creditors have purchased, though it the point of considering the legality of the a specified consideration, none of which was paid, claim presented to the auditor. If that claim to a third person, who was worth less than the amount specified, on his recited assumption of an is clearly illegal, and is shown by the plead-existing mortgage on the property, and promise ings so to be, it is obvious that a court would in no form of procedure compel the auditor to allow it. While the form of the question propounded does not in terms seek the opinion of this court upon the legal aspects of the claim, yet, considering it in connection with other points which were reserved, and with the evident desire of counsel as shown by their argument, it may be stated succinctly that it is the opinion of this court that the claim, as presented by the attorney general, is not authorized by law. The appropriation of the sum of $600 for the office of the attorney general is not an absolute one. It is not independent of every extraneous circum-negotiable paper executed by him prior thereto, stance or consideration. The maximum limit is $600; the minimum may be according to the necessities of the office. It can lawfully be expended only for those things which are necessary to enable the incumbent to discharge his official duties with reasonable convenience and comfort to himself. It is wholly unlike an appropriation to pay a salary. The officer may do as he pleases with his salary. It is a right in gross. But the contingent fund, as the phrase implies, is to be used in such contingencies and for such purposes only as may make the use proper. In the case at bar it sufficiently appears that SOUFLEY, J. The defendant and appellee the territory has incurred the expense of con- Jeremiah Graham, on the 24th day of Octostructing a capitol building, with apartments ber, 1883, held the legal title to a house and and accommodations for the heads of the sev-lot in the city of Cheyenne, which he had aceral departments of the government. These apartments have been designated and set apart for use and occupancy. If those who are entitled to use them decline to do so, they must, in the present state of the law, furnish apartments at their own proper expense. It results, therefore, that the claim, being one not properly chargeable to the territory, the auditor, even if his discretion could be controlled, (which it must be understood we do not affirm,) cannot be required by any form of procedure to allow it. (3 Wyo. 211) CULVER et al. v. GRAHAM et ux. Appeal from district court, First district. Bill to set aside a deed, and to obtain possession of real property, by James M. Culver and Mowrey A. Arnold against Jeremiah Graham and Hannah Graham, his wife. Decree for defendants, and complainants appeal. C. N. Potter and Willis Van Decanter, for appellants. Hugo Donzelman and Allen Miller, for appellees. In the quired about nine years previously by a deed of conveyance from Posey Wilson. year 1877, while thus holding the legal titie, he became indebted upon an accepted bill of exchange to Appelgate & Sons, of Louisville, Ky., and by promissory note to Jacob P. Weybrecht. The holders of these negotiable instruments subsequently, but at a date which is not disclosed by the record, indorsed and delivered them to the appellants, who on the 10th day of January, 1884, instituted this action in the district court for the recov ery of the amount due them, and contemporaneously therewith obtained an attachment, which was levied upon the property mentioned, and which is now the subject of this controversy. In this action personal judgment was rendered against Graham, the ground of attachment sustained, and the sheriff was directed to sell the property for the satisfaction of the judgment and costs. Acting under this judgment, and by virtue of a special execution, the sheriff proceeding regularly, sold the property, and appellants, being the accepted bidders, became the purchasers. The sale was confirmed by the court, a deed was ordered and made, conveying all the right and interest which Graham had in the property at the date of the attachment levy. When the property was offered by the sheriff at public vendue, Hannah Graham, wife of Jeremiah, appeared, and for3. The husband and wife, at a time when the bade the sale, claiming for herself the sole husband was insolvent, conveyed the property for and exclusive ownership of the property. 1. Evidence that a wife loaned her husband money with which to buy oxen; that he bought the oxen, it not being shown that he did not take the title in his own name; and that he exchanged a part of them for land, the title to which he took in his own name,-does not establish a resulting trust in the wife, especially where the wife's testimony as to the purchase of the property is contradictory, and it appears that the husband had presented in his own name a claim against the government for part of the oxen stolen by Indians. 2. Even if such a trust were established, the wife would be estopped to set it up as against the husband's creditors, where she has allowed him to occupy and use it and deal with it as his own, obtaining credit on his reputation as its owner for nine years. Being jointly with her husband in possession, | is actually paid at the time by another, a she refused to surrender to the purchasers, trust results in favor of the latter. It is who it appears did not apply on the confirma- equally the rule that the payment of the tion of their deed, as they might have done, money by the cestui que trust must be clearfor the writ of habue facias or other appro-ly proven, and must have been made at the priate execution to put them into the pos- time of the purchase or a part of the original session of the property which the court by its transaction of purchase. The easy possibilofficer had sold to them, but sought their remedy by a bill in chancery, assailing the alleged title and ownership of the wife, and praying that she and her husband be adjudged to surrender possession to them. ity of the successful perpetration of a fraud, to the injury of creditors when equitable interests are claimed by reason of a resulting trust, has led the courts of equity jurisdiction to establish, by a complete unanimity of The appellants claiming the legal estate decision, the rule that the evidence of the and the right of entry, it would seem that payment by the beneficiary "must be clear, for them the action of ejectment was the strong, unequivocal, unmistakable, and bemore appropriate remedy; but since the ap-yond doubt." 2 Pom. Eq. Jur. § 1040. Inpellees appeared in the court below, and deed, several states of the Union have been without objection to the form of procedure so strongly impressed by the impolicy of this filed their answer controverting the material particular form of resulting trusts that they allegations of the bill, inquiry upon this have by legislation abolished it. Indiana, feature becomes unimportant. It is alleged Kansas, Kentucky, Minnesota, Michigan, in the bill that at the time of the acceptance New York, and Wisconsin have all concurred by Jeremiah of the bill of exchange, and at in similar forms of legislation, of which the the time of the execution by him of the prom- Kentucky statute seems to be a type: "When issory note, he was the owner and in the a deed shall be made to one person and the possession of the house and lot; that on the consideration shall be paid by another, no use 24th day of October, 1883, the debt still be- or trust shall result in favor of the latter; ing unpaid, he and his wife, Hannah, with- but this shall not extend to any case in which out consideration, and with the fraudulent the grantee shall have taken a deed in his intent to hinder and defraud the husband's own name without the consent of the person creditors, conveyed the property to A. S. paying the consideration, or where the granEmery, and on the following day Emery, tee, in violation of some trust, shall have with intent to aid in the execution of the purchased the lands deeded with the effects fraudulent design, conveyed the property to of another person." Gen. St. c. 63, art. 1, § the wife. The Grahams filed their joint an- 19. The trust here abolished is that which swer, denying the fraud, averring the bona results or leaps back to the cestui que trust, fides of the transaction, and, in addition, in leaving the trust, by construction, to arise a rather vague way, affirmatively declaring out of either the actual or constructive fraud the sole and exclusive ownership by the wife perpetrated by the grantee. This legislation of the property, not only at the date of the is referred to, not because of any supposition attachment levy, but for a long time prior that it in any wise governs the rights of the thereto. The testimony upon the issue they parties to this controversy, but only to show framed took a wide range. Much of it was the trend of modern legislative opinion upon conflicting, a part of it irrelevant, and a the doctrine which is here invoked. portion incredible from its intrinsic improbability. The pleadings, strictly construed, would leave but one issue for determination,—the question of fraudulent intent in the conveyances to and from Emery; but inasmuch as the cause appears to have been prepared with reference to the rather indefinite allegation by the wife of exclusive ownership in herself, even prior to the conveyance to her by Emery, this question will be considered equally with the other. There can be no pretense that the legal title was ever vested in the wife prior to the 25th day of October, 1883,-the date of the Emery deed. The utmost right that can be claimed for her antecedently arises out of the doctrine of resulting trusts. It is claimed by both herself and husband that she furnished the money to pay for the property in contest when it was bought from Wilson about the year 1874, and that the deed, through their ignorance of the law, was made to the husband. It is an accepted rule of equity jurisprudence that when property is purchased in the name of one party, and the purchase price Guided, therefore, by those general principles which have become fundamental in our system of equity, it becomes necessary to closely examine the testimony by which the appellees undertake to establish the trust in favor of the wife. As shown by the evidence, they are both negroes. While this fact neither enlarges nor diminishes their rights under the law, it is not improper that a court of conscience should consider the circumstances of their birth, their meager opportunities for education, their unfavorable environment during a portion of their lives, the ungracious dispensations to which they were long subjected, and to soften, in their favor, as far as may be done without a violation of duty, the rigor of the general rules of law. To extend, however, this spirit of kindly consideration to the point where sentiment shall take the place of law would be not only wrong in itself, but might, as a precedent, prove disastrous in the end to the race of which appellees are representatives. It seems to be a capital point in the testimony of each of them to establish the char |