cumstances of the party. There is no such line of distinction set up or traced in any of the cases. The attempt would be embarrassing, if not dangerous, to the rights of creditors, and prove an inlet of fraud."

The New York decisions seem to have been uniformly governed by the dicta of the great chancellor. Specially conforming thereto are Fox. v. Meyers, 54 N. Y. 125; Savage v. Murphy, 34 N. Y. 308; Babcock v. Gokler, Ib. 623; Robinson, v. Stewart, 10 N. Y. 190; Briggs v. Mitchell, 60 Barb. 288.

Where the commercial transactions of the husband are affected by such conveyances, and the application of the Federal decisions can be applied without question, as against the decisions of the state courts, it would seem that the authorities clearly indicate the proper disposition of numerous cases now before the courts. The tenor of these decisions is that the wife should take some steps to protect herself, and that she has no rights against her husband's creditors after she has been a passive or willing instrument in his hands to deceive them; and their justice is apparent.

1. A JUDGE HAS JURISDICTION in vacation, under section 2923 of the code, to issue an order directing the sheriff, in regard to the publication of notices of the sale of land on execution.

2. A PLAINTIFF HAS THE RIGHT to select the newspaper in which notice of the sale of land on execution shall be published. Code, section 3832.

APPEAL from Cherokee District Court:

Plaintiff recovered a decree in an action to foreclose a mortgage, upon which a special execution was issued for the sale of the land covered by the mortgage. He directed notice of the sale to be published in a newspaper designated by him. The sheriff, who is the defendant in this procecding, refusing to follow plaintiff's direction, com · menced the publication of the notice in another newspaper. Thereupon, plaintiff, in vacation, made application to the judge of the court rendering the decree, in the form of a motion for an order direct

ing the sheriff to publish the notice in the newspaper designated by plaintiff. The order was made, from which defendant appeals.

Joy & Wright and G. W. Wakefield, for the appellant; Kellogg & Herrick, for the appellee.

BECK, J., delivered the opinion of the court: Two questions arise in this case, the first involving the jurisdiction of the judge to act upon the matter in controversy in vacation; the second, the authority of plaintiff to designate the newspaper in which notices of sales of lands on execution shall be published.

Code, section 2923, provides that, "for good cause shown, a judge's order may issue in vacation directing any of the officers of the court in relation to the discharge of their duties." The language of this provision is too plain to admit a doubt of its meaning. The publication of the notice of the sale pertains to the duty of the sheriff. The judge, in vacation, may direct the sheriff to discharge such duty in the manner prescribed by law as determined by the judge. The object of the statute, doubt less, is to protect both sheriff and parties to actions, by providing a ready and convenient proceeding for settling questions affecting their duties and rights.

Code, section 3832, provides that the plaintiff's in the proper cases, may direct in what newspapers notice of the sale of lands upon execution shall be published. This section is explicit, and in plain language requires the sheriffs to follow the directions of the plaintiffs in the selection of newspapers.

Defendant insists that code, section 306, gives him the right of selection in such cases. It is in this language: "The clerk of the district court, sheriff, auditor, treasurer and recorder, shall designate the newspapers in which the notices pertaining to their several offices shall be published, and the board of supervisors shall designate the papers in which all other county notices shall be published: and, in counties having a population exceeding eighteen thousand inhabitants, the board shall designate as one of such papers a paper published in a foreign language if there be such in the county."

The language of this provision does not include notice of execution sales, but is limited to "county notices," which we understand to mean notices pertaining to county business. The context clearly shows that it is used in this sense. Section 3832 is applicable to the publication of notices of sales on execution. The two provisions being applicable to different subjects, are not in conflict, and do not require construction to make them harmonize. The case, in our opinion, demands no further consideration. The order of the district court is affirmed.

Calcutta barristers, who are unmindful of the respect due to the judicial bench in a certain court, undergo a very unpleasant penance. The judge has the punkah (which is a fan worked by machinery for cooling the court room) stopped immediately, a plan which immediately brings back the suffocating lawyer to a proper frame of mind.

NEGLIGENCE-NOXIOUS TREE-LIABILITY OF LAND OWNER FOR DAMAGES CAUSED TO ADJOINING OCCUPIER.

CROWHURST v. AMERSHAM BURIAL BOARD.

English Court of Appeal, November, 1878.

If a man knowingly plant in his own land and suffer to grow over the land of his neighbor a noxious tree, by which his neighbor's cattle are injured, an action will lie against him at the suit of such neighbor.

This was an appeal, by way of special case, from the decision of the judge of the Buckinghamshire County Court in favor of the plaintiff. The facts of the case, the arguments urged on either side, and the cases cited appear from the judgment of the court.

Herschell, Q. C., and Shaw, for the defendants; J. O. Griffits, Q. C., and Cooper Wyld, for the plaintiff.

KELLY, C. B., delivered the judgment of the

court.

This is an appeal from the county court of Buckinghamshire, held at Chesham. The judgment in the court below was for the plaintiff, damages £21, and the judge stated a case for our opinion.

The material facts of this case are as follows: The defendants, some seventeen years ago, obtained a piece of land for the purposes of their cemetery, and fenced it round with a dwarf wall, in which, at two places, there were openings filled up with iron railings about two feet high. Where these railings occurred, the defendants planted two yew trees at a distance of about four feet from the railing. These grew through and beyond the railings, so as to project over an adjoining meadow.

The plaintiff, two years before the alleged cause of action, hired this meadow to pasture his horses for a term of three years. After the plaintiff had occupied the field for two years, his horse, which was feeding in the meadow, ate of that portion of the yew tree which projected over the field, the wall and rails not being sufficiently high to prevent a horse from so eating, and died from the effects of the poison contained in what he ate.

The question for our determination is whether the death of the horse so occasioned afforded any cause of action against the defendants.

There being no pleading in the county court, the question is not in any way affected by the form in which the cause of action is put forward, and the facts, as found by the judge of the county court, must be taken as conclusive. The only matter, therefore, for our decision is whether, upon these facts, any legal liability is disclosed.

The matter might appear to be somewhat trivial, but the case gives rise to a question which may not unfrequently arise, and, therefore, is of some general importance. Considering this, it is remarkable that there is an absence of any immediate authority by which our decision should be governed, and it is, therefore, necessary to determine what are the principles of law properly applicable to it.

Before doing this, it may be well to state shortly what I apprehend to be the effect of the finding of the county court judge. In the first place, I consider that the judge has so found the facts as to the planting and growth of the yew trees as to preclude the supposition of mere accident, and that the trees must be taken so to have been planted and grown with the knowledge of the defendants as to make them responsible for whatever might be the direct consequence of the original planting.

Secondly, although it is found that the plaintiff saw the horse in the meadow the day before it died, it is also found that he was not aware of the existence of the yew trees, and I think it must be taken that any such negligence on the part of the plaintiff as would disentitle him to recover is negatived. The mere fact that the plaintiff saw the horse in the field would go for nothing, and I do not think that he was bound to examine all the boundaries so as to see that no tree likely to be injurious to his horse was projecting over the field he had hired.

It ought also to be noticed that the decision in no way depends upon any question of fencing or the co-relative rights and duties arising therefrom, and, therefore, the cases which are cited to us based upon these afford us no assistance..

The question seems to resolve itself into this: Was the act of the defendants in originally planting the tree, or the omission to keep it within their own boundary, a legal wrong against the occupiers of the adjoining field, which, when damage arose from it, would give the latter a cause of action?

On the part of the defendants it may be said that the planting of a yew tree in or near to a fence, and permitting it to grow in its natural course, is so usual and ordinary that a court of law ought not to decide that it can be made the subject of an action, especially when an adjoining landowner, over whose property it grew, would, according to the authorities, have the remedy in his own hands by clipping.

On the other hand, the plaintiff may fairly argue that what was done was a curtailment of his rights, which, had he known of it, would prevent his using the field for the purpose for which he had hired it, or would impose upon him the unusual burden of tethering or watching his cattle, or of trimming the trees in question; and although the right to so trim may be conceded, this does not dispose of the case, as the watching to see when trimming would be necessary, and the operation of trimming, are burdens which ought not to be cast upon a neighbor by the acts of an adjoining owner. It may also be said that if the tree were innocuous it might well be held, from grounds of general convenience, that the occupier of the land projected over would have no right of action, but should be left to protect himself by clipping. Such projections are innumerable throughout the country, and no such action has ever been maintained; but the occupier ought, from similar grounds of general convenience, to be allowed to turn out his cattle, acting upon the assumption that none but innocuous trees are permitted to project over his land. The principle by which such a case is to be gov

erned is carefully expressed in the judgment of the Exchequer Chamber, in Fletcher v. Rylands, 14 W. R. 799, at p. 801, L. R. 1 Ex. 265, at p. 279, where it is said: "We think that the true rule of law is that the person who, for his own purposes, brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril; and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." This statement of the law was cited and approved of in the judgment of the House of Lords in the same

case.

In Fletcher v. Rylands, the act of the defendant complained of was the collecting in a reservoir a large quantity of water, which burst its bounds and flowed into the plaintiff's mine; but though the degree of caution required may vary in each particular case, the principle upcn which the duty depends must be the same, and it has been applied under many and varied circumstances of a more ordinany kind, as in Aldred's case, 9 Rep. 57b, where the wrong complained of was the building of a house for hogs so near to the plaintiff's premises as to be a nuisance; Tenant v. Goldwin, 1 Salk. 360; and others which are cited in Comyns' Digest, tit. "Action on the Case for Nuisance"; and in the judgment in Fletcher v. Rylands; in all which cases the maxim "Sic utere tuo ut alienum non lædas" was considered to apply, and those who so interfered with the enjoyment by their neighbors of their premises were held liable.

Other cases of a similar kind may be found in the books. Thus, in Turbervil v. Stamp, 1 Salk. 13, it was held that an action lay by one whose corn was burnt by the negligent management of a fire upon his neighbor's ground, although one of the judges did not agree in the decision, upon the ground that it was usual for farmers to burn stubble. In Lam bert v. Bessy, Sir T. Raym. 421, the action was in trespass quare clausum fregit. The defendant pleaded that he had land adjoining the plaintiff's close, and upon it a hedge of thorns; that he cut the thorns, and that they ipso invito fell upon the plaintiff's land, and the defendant took them off as soon as he could. On demurrer, judgment was given for the plaintiff, on the ground that, though a man do a lawful thing, yet, if any damage thereby befalls auother, he shall be answerable if he could have avoided it.

This case was alluded to and approved of by Lord Cranworth in his judgment in the case of Rylands v. Fletcher, in the House of Lords, L. R. 3 H. L. 330, 17 W. R. H. L. Dig. 17, where he says: "The doctrine is founded on good sense. when one person, in managing his own affairs, causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer."

For

It does not appear from the case what evidence was given in the county court to prove either that the defendants knew that yew trees were poisonous to cattle, or that the fact was common knowledge amongst persons who have to do with cattle. As to the defendants' knowledge it would be immaterial, as whether they knew it or not, they must

be held responsible for the natural consequences of their own act. It is, however, distinctly found by the judge: "The fact that cattle frequently browse on the leaves and branches of yew trees when within reach, and not unfrequently are poisoned thereby, is generally known," and by this finding, which certainly is in accordance with experience, we are bound.

Several cases were cited during the argument. In two of them, Lawrence v. Jenkins, 21 W. R. 577, L. R. 8 Q. B. 274, and Firth v. Bowling Iron Company, 26 W. R. 558, L. R. 3 C. P. D. 254, the liability of the defendant was based upon his duty to fence. These, therefore, as I have already said, throw no light upon the present question. In Wilson v. Newbury, 20 W. R. 111 L. R. 7 Q. B. 31, which arose upon demurrer to a declaration, the court merely decided that an averment that clippings from the defendants' yew tree got upon the plaintiff's land, was insufficient without showing that they were placed there by or with the knowledge of the defendant. Mr. Justice Mellor, however, in giving judgment, says, after alluding to Fletcher v. Rylands: "If a person brings on to his land things which have a tendency to escape, and to do mischief, he must take care that they do not get on his neighbor's land."

Another case which was cited during the argument was that of Erskine v. Adeane, 21 W. R. 802, L. R. 8 Ch. 756, in which the Court of Appeal held that a warranty could not be applied by the lessor of land let for agricultural purposes, that there were no plants likely to be injurious to cattle, such as yew trees, growing on the premises demised. This decision obviously rests upon grounds foreign to those by which the present case should be determined. I notice it, therefore, only that I may not appear to have overlooked it.

In the result I think that the judgment of the county court was correct, and that it should be affirmed with costs. Appeal dismissed.

enforce payment of his claim against the estate, may, however, flle a bill and have the fraudulent conveyance set aside and the real estate sold by the administrator to pay debts. The case of Gould v. Steinburg, 84 Ill. 170, explained. ¡

WALKER, J., delivered the opinion of the court:

Notwithstanding the unusually extended briefs in this case, the points involved lie in a small compass. It appears that W. T. Bebee, in the month of July, 1846, was largely indebted, if not insolvent; that on the 27th day of that month he conveyed the premises in controversy to his children, as it is claimed, for the purpose of hindering and delaying his creditors in the collection of their debts. Afterwards, on the 16th day of May, 1848, he died intestate; and on the 2d day of March, 1853, Leander Douglas was appointed by the Probate Court of Knox county administrator of his estate. It also appears that there was proved and allowed, in the probate court of that county, a claim for $7,150.55 in favor of the Delaware County Bank, which was not paid from the personal assets of the estate. Afterwards the administrator applied to the Circuit Court of Knox county, and at the September term, 1853, thereof, obtained an order authorizing and licensing him to sell the land which Bebee had thus conveyed in 1846. On the 17th day of November following, pursuant to notice, the administrator sold the lands, and Robert Soutter, Jr., became the purchaser for the sum of $900, and received a deed from the administrator for the land thus sold.

In February, 1855, Soutter filed a bill to have the conveyance by Bebee to his children declared fraudulent as to creditors, and that they should be compelled to convey the land to him. After the opening of defaults to let in defendants to answer, the suggestion of the death of Soutter, and revival of the suit in the name of his heirs, numerous continuances and various other steps taken in the cause, a bearing was had in the court below on the 19th day of June, 1872. On bill, answers, replications and proofs, the prayer of the bill was granted and defendants decreed to convey to complainants, and, on default, that the master convey for them. To reverse that decree defendants bring the case to this court on error.

The vital question upon which this controversy turns is whether the administrator of an estate may, under an order of the court, sell and convey any interests in lands sold and conveyed by his intestate in his life-time to hinder and delay his creditors. The bill is framed on the theory that he may so sell and thereby pass at least the equitable title, so as to enable the purchaser to compel a conveyance from the fraudulent grantee to him, and in granting the relief sought the court below so held. So far as this court has the power to settle the question, it has done so in numerous decisions, in which it is held that, by such a sale, no title passes to the purchaser for want of power in the administrator to make the sale. See McDowell v. Cochran, 11 Ill. 31; Choteau v. Jones, Ib. 319; Alexander v. Tams, 13 Ill. 226; White v. Russell, 79 Ill. 155; Le Moyne V. Quimby, 70 Ill. 405, and numerous other cases

might be referred to as directly or incidentally Sustaining or recognizing the rule; nor are there any cases in our court which announce a different doctrine.

The administrator derives all of his power from the statute, and it only authorizes him to sell lands of which his intestate was seized at his death. And we are aware of no well considered case which holds that a person who fraudulently conveys lands to hinder and delay his creditors retains any title to the lands, legal or equitable. On the contrary, the statute of frauds, which was designed to prohibit such sales, only declares such conveyances void as against creditors, purchasers and other persons, but not as to the fraudulent grantor or grantee. As to them it is binding, and passes the title as fully aud effectually as if it was bona fide. It then follows that, at Bebee's death, he was seized of no kind of title, and, if so, it is impossible to perceive in what manner the administrator could, even under the order of the court, sell and convey any to a purchaser. The statute conferred in such a case no authority on the administrator to ask for, or power on the court to authorize such a sale.

It has been repeatedly held by this court, and we must regard it settled, that, on an application of this character, the court has no jurisdiction to remove clouds on the title, to settle equities, or to remove obstructions to the assertion of title, but simply to license a sale of the title of intestate precisely as he held it. The court has no power to hear and determine that deceased had an equitable title, and order it sold, but simply to license a sale of whatever title he died seized.

The administrator, by obtaining letters, took no title to real estate, whether the title was legal or equitable. He thereby became invested only with a mere naked power, when the contingency provided for by the statute arose, to apply for and obtain leave, in the mode prescribed, to sell the lands of which his intestate died seized. This is the extent of his rights and his powers. But here his intestate had, previous to his death, conveyed all of his title to these lands, by deeds effectual for the purpose as to him, and he had no title or claim of title at the time of his death, and, consequently, nothing for his administrator to sell, or for the ancestor of complainants to purchase. Hence, he thereby acquired neither a legal nor equitable right to pursue the land. A conveyance by Bebee to him could not have authorized him in equity to have the land conveyed to him, because Bebee after the sale had no title or right to a reconveyance, and could transfer no other or better right to his grantee than he himself held. It therefore follows that the administrator sold and Soutter acquired nothing by the intended sale. It then follows that the court erred in decreeing Bebee's grantees to convey their title to complainants.

This is unlike the case of Gould v. Steinburg, 84 II. 170. In that case the sale was made under judgment and execution, in behalf of a creditor, and as against whom the fraudulent deed was void and the fraudulent grantor, as to him, had such title as the creditor could sell, and, hence, the title passed by the sheriff's sale.