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therefore when the suspension of decedent's power over an estate, devised to her "for her sole and separate use," ceased at her death, the husband had no marital rights of property to which he could return. Appeal of Girard Ins. Co., Legal Gazette, January 30, 1874.

2. CONSTRUCTION OF DIRECTION TO INVEST. - A direction, in the will in question, to invest the proceeds of decedent's estate" after settlement and his just debts are paid," held not to work a conversion of the real estate, but only to apply to the personalty. Ib.

3. "WHO SHALL THEN BE LIVING CONSTRUED. - A devise of all the remainder of the testator's estate not given to his wife, to those of his children "who shall then be living," held to refer to the children living when the property vested in them, to wit, at the testator's death. Cresson's Appeal, Legal Gazette, February 6, 1874; Legal Int., February 6, 1874.

4. THE MEANING OF WORDS used by a testator depends upon the meaning of such words at the time they were used. Board of Missions v. Society for Advancement of Christianity, &c. Legal Intelligencer, February 13, 1874.

5. CHARITABLE BEQUEST. HOW ADMINISTERED. The bequest for missionary work in the diocese of Pennsylvania is a charity to be administered upon the enlarged and liberal principles which courts of equity have always applied to such trusts. Ib.

6. CONSTRUCTION OF PENNA. ACT OF APRIL 18, 1853. - A will directed a certain part of the income of the estate to be paid for the maintenance of a minor child. The accumulations that accrued above the part so paid were directed to be incorporated into the body of the estate, of which the said minor after her arrival at full age, was to have the entire interest during her life. Held, that under the act of 18th April, 1853, that part of the will that directed the accumulations to be so incorporated fails, and that such accumulations revert to, and form part of the estate of the child. Appeal of Penna. Co. for Ins. of Lives, Legal Gazette, February 13, 1874.

7. WHERE" INCOME 66 OR INTEREST IS BEQUEATHED, it begins to run from the death of the testator, if the fund is productive and the estate free from debt.

An auditor refused to allow interest until one year after the death, and upon exception to his report, the court sustained the exception. Sergeant's Appeal, Ib.; Legal Intel. February 13, 1874.

THE AMERICAN LAW TIMES.

NEW SERIES.-MARCH, 1874.- VOL. I., No. 3.

DIGEST OF CASES

PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI

A BILL BROKER will not be presumed to be the agent of the party to whom he sells commercial paper. Such agency, if alleged, must be proven by competent and sufficient testimony. Gilmore v. Moorhead, Pittsb. L. J., March 4, 1874.

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ARBITRATION.

AN AGREEMENT TO REFER TO ARBITRATORS, by which important rights are gained and lost reciprocally, and which is not merely a naked power to refer, is not revocable after the referees have gone far into the case. Paist v. Caldwell, Pittsb. L. J., March 4, 1874.

ASSUMPSIT.

See PAUPERS.

ATTACHMENT SUITS.

1. PUBLICATION.-The statute (Revised Statutes, 1855, page 246, section 23; Session Laws 1859-60, page 4) authorizes the clerk, in vacation, after the return term, to make an order for publication in suits by attachment where the court should have made such order in term time, but has omitted to do so. Kane v. McCown, Cent. L. J., March 5, 1874. 2. FAILURE TO DESIGNATE PAPER.- The newspaper selected by the court, judge, or clerk making an order of publication, in which to publish the same, need not be designated in the order, and a failure to designate such paper will not render the judgment void. 1b.

3. VALIDITY OF JUDGMENT. In attachment suits against non-residents the court acquires jurisdiction by the seizure of the property under a valid writ. There is then a case in court, and if every point arising subsequently is erroneously decided, the judgment is nevertheless valid, and can only be questioned in a direct proceeding (Freeman v. Thompson, July term, 1873, reviewed and affirmed). 16.

ATTORNEYS.

1. FEES.A stipulation in a promissory note that the maker will pay ten per centum on the amount thereof in case it shall be necessary to collect the note by suit, will not be regarded as a penalty, but as liquidated damages, COLE, J., dissenting. McIntyre v. Cagley, West. Jur., March,

1874.

2. DAMAGES: STIPULATED; PENALTY. In cases of this nature the action of the court will not be defined or determined by the terms which the parties have seen fit to apply to the sum agreed upon. Although they have called it a "penalty" or "liquidated damages," it will be held to the one or the other, as from the nature of the contract and the surrounding circumstances, it appears that the parties intended, and in reason and justice they ought to be held. 1b.

AUDITORS.

ACCOUNT. When an auditor states an account, with the facts on which the disputed items depend, exceptions to his report should be either for error in finding or in omitting to find specified facts, and this is an appeal to the testimony; or for erroneous inference or conclusion, and this assumes facts as truly found and states what they are. Estate of Dickson, Pittsb. L. J., March 4, 1874.

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BAILMENTS.

SPECIAL DEPOSITS. The plaintiffs below, who kept an account with the defendant, made a special deposit of certain bonds for safe keeping, paying nothing for the privilege; the bonds were stolen by the teller, who had always borne a good character.

Held: 1. That the bank was a gratuitous bailee, and as such not liable, except for gross negligence.

2. That neither the fact, that the bank might have discovered that the teller was dishonest, by a more frequent or accurate examination of his accounts, nor that he was allowed to keep the "individual ledger," which was the only book which was a check upon him, nor that he was not dismissed, when it was discovered that he had made a successful speculation in stocks, was such negligence as to render the bank liable.

3. That nothing short of knowledge or reasonable grounds of suspicion by the bank, that the teller was unfit to be appointed or retained, would render it liable. Foster v. Essex Bank, 17 Mass. 478, approved and followed; Lancaster Bank v. Smith, 12 P. F. S. (62 Penna. Stat.) 47 remarked on; Scott v. National Bank, Pittsb. L. J., March 11, 1874.

BANKRUPTCY.

1. CAPITAL STOCK OR SHARES especially the unpaid subscription — constitute a trust fund for the benefit of the general creditors of a corporation. Sawyer v. Hoag, West. Jur., March, 1874.

2. This trust cannot be defeated by a simulated payment of the stock subscription, nor by any device short of an actual payment in good faith.

IV.

3. An arrangement by which the stock is nominally paid, and the money immediately taken back as a loan to the stockholder, is a device to change the debt from a stock debt to a loan, and is not a valid payment as against creditors of the corporation, though it may be good as between the company and the stockholder. Ib.

4. SET-OFF. Section 20 of the bankrupt act was not intended to enlarge the doctrine of set-off beyond what the principles of legal or equitable set-off previously authorized. Ib.

5. A stockholder indebted to an insolvent corporation for unpaid shares cannot set off against this trust fund for creditors a debt due him by the corporation. The fund arising from such unpaid shares must be equally divided among all the creditors. Ib.

6. THE RELATIONS OF A STOCKHOLDER TO THE CORPORATION, and to the public who deal with the latter, are such as to require good faith and fair dealing in every transaction between him and the corporation, of which he is part owner and controller, which may injuriously affect the rights of creditors of the general public, and a rigid scrutiny will be made into all such transactions in the interest of creditors. Ib.

7. BANKRUPT ACT. ILLEGAL PREFERENCE. JUDGMENT IN STATE COURT.-Section 39 of the bankrupt act, as respects an insolvent debtor suffering his property to be taken on legal process, with intent to give a preference to a creditor, or to defeat or delay the operation of the act, construed, and the following propositions ruled: 1. That something more

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than passive non-resistance of an insolvent debtor to regular judicial proceedings, in which a judgment and levy on his property are obtained, when the debt is due and he is without just defence to the action, is necessary to show a preference of a creditor, or a purpose to defeat or delay the operation of the bankrupt act. 2. That the fact that the debtor under such circumstances does not file a petition in bankruptcy is not a sufficient evidence of such preference, or of intent to defeat the operations of the act. 3. That, though the judgment creditor in such cases may know the insolvent condition of the debtor, his levy and seizure are not void under the circumstances, nor any violation of the bankrupt law. 4. That a lien thus obtained by him will not be displaced by subsequent proceedings in bankruptcy against the debtor, though within four months of the filing of the petition. Wilson v. City Bank, Am. Law Rec., March, 1874.

BILLS AND NOTES.

1. WHEN a note is taken after its maturity, it is taken subject to the equities existing between the original parties arising out of or connected with the note itself— such as its accommodation character; but not to a set-off. Long v. Rhann, Pittsb. L. J., March 11, 1874.

2. ACCOMMODATION NOTE. It is no defence to an accommodation note that it came into plaintiff's hands after maturity, if it came to him from one who acquired it for value before maturity. Regel v. Cunningham, Leg. Int., March 6, 1874.

3. EVIDENCE tending merely to show that a party in acquiring a bill of exchange or promissory note suspected the title of the holder at the time of delivery, would hardly constitute an approach towards proof that he had knowledge that such holder was guilty of a breach of trust in passing it. In this case Calvin Adams, who was a member of the firm o Whitten & Co., and Moorhead, Adams & Co., made the note to the order of Whitten & Co., who indorsed it. Adams then indorsed the name of Moorhead, Adams & Co. There was no evidence that Gilmore, who took the note, had any knowledge of any improper use of the name of Moorhead, Adams & Co., except such as he might derive from the fact that the signature was in the handwriting of the maker of the note.

Held, not to be sufficient to put him upon notice or defeat his right to recover. Gilmore v. Moorhead, Pittsb. L. J., March 4, 1874.

CONFEDERATE BONDS.

See EXECUTORS AND ADMINISTRATORS.

CONTRACTS.

1. JURISDICTION. LIEN. A contract to build a vessel is a contract to be performed on land, and falling within the ordinary common law, and belongs to state jurisdiction, and a state has a right to give a lien against her for work and materials entering into her construction. The Maggie Cain, Pittsb. L. J., March 11, 1874.

2. BIDS FOR.-The head of a department of the municipal government cannot refuse to award a contract to the lowest bidder because of irregularity in not conforming to the notice for bids. If there has been a