Statement of Facts. either. And yet the complainants assert the right to foreclose them both a claim that is self-contradictory, for, by the very nature of the arrangement, it is impossible that there should be a default as to both. The fact that one mortgagor had failed to perform his part of the agreement could only be on the supposition that the other had not only fully performed it on his part, but had paid that excess against which his co-surety had agreed to indemnify him. There is, therefore, no right to the subrogation insisted on, because there is nothing to which it can apply. It results, therefore, that the complainants were not entitled to participate in the benefit of the mortgages in question, nor to share in the proceeds of the sale of the mortgaged premises; but that the same should have been applied to the payment of the other judgment and mortgage liens upon the premises, in the order of their priority. The decree of May 29th, 1879, therefore, being the one from which the appeal was taken, is reversed, and the cause remanded with directions to take such further proceedings therein, not inconsistent with this opinion, as justice and equity require. Decree reversed. BASKET v. HASSELL. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. Decided April 16th, 1883. Probate-Statutes-Will. The attempted transfer of a certificate of deposit on the donor's death-bed, reported in Basket v. Hassell, 107 U. S. 602, cannot be enforced here as a will of personalty, because such will does not take effect under the statutes of Tennessee until probate. Motion for a rehearing. The case was decided at October term, 1882, and is reported 107 U. S. 602. Argument for Appellant. Mr. P. Phillips and Mr. W. Hallett Phillips for the appellant and petitioner. We ask rehearing on a single point involved in the opinion of the court, viz., when the court say: "As the gift was to take effect only upon the death of the donor, it was not a present executed donatio causa mortis, but a testamentary disposition, void for want of compliance with the statute of wills." The gift was executed in the State of Tennessee. In Tennessee there is no statutory provision governing such a testamentary disposition-the principles of the common law being there in force. Rev. Stat. Tenn. 1871, § 2162, n; Suggett v. Kitchell, 6 Yerger, 425. “The English law (says Kent) is very loose as to the nature of the instrument disposing of personal property; and marriage articles, promissory notes, assignments of bonds, letters, &c., &c., although not intended as wills, yet if they cannot operate in one way, may be admitted to probate as wills of personal property-provided the intention of the deceased be clear that the instrument should operate after his death." 4 Kent, 518. This is recognized to be the law of Tennessee in the case of McLean v. McLean, citing the declaration of Lord Hardwicke: "There is nothing which requires so little solemnity as a will of personal estate, for there is scarcely any paper writing which the courts will not enforce as such." 6 Humph. 452; Watkins v. Dean, 10 Yerg. 321. "It is not to be doubted that a will of personal estate, if written in the testator's own hand, though it has neither his name or seal to it, nor witnesses present at its publication, is effectual, provided the handwriting can be sufficiently proved." 1 Roberts on Wills (1 Am. Ed.), p. 148; 2 Black. Com. 501, cited in Suggett v. Kitchell, 6 Yerg., at p. 428. When, therefore, it is said that this disposition was void for want of compliance with the "statute of wills," it is evident that the court fell into an error. If we have shown that there was here a good testamentary disposition, then the decree must be reversed. Less than a month after the decease of Chaney, the bill is filed for the delivery to complainant of the certificate. This is resisted by defendant, by showing all the circumstances accompanying its indorsement and delivery. The court held there was neither a donatio causa mortis nor a valid testamentary Syllabus. disposition, and decreed accordingly that the money should be paid over to the complainant, Hassell. The case is the same as it would be if the sole question presented was as to the testamentary disposition. The indorsement was urged by the complainant to constitute a testamentary paper. There was no question as to probate, even if the defendant was under any obligation to produce one. Tarver v. Tarver, 9 Pet. 174. Were this the case of a complainant seeking relief on a will not probated, it would have been error in the court to have dismissed his bill absolutely. Armstrong v. Lear, 12 Wheat. 169. MR. JUSTICE MATTHEWS delivered the opinion of the court. It is urged that the indorsement and delivery of the certificate of deposit, if void as a gift mortis causa, is nevertheless good as a will of personalty under the laws of Tennessee, and, passing the title as such, entitled the appellant to a decree for the payment of the money. But the conclusion is not justified by the assumption, for a will of personalty in Tennessee does not take effect until probate (Statutes of Tennessee, 1871, § 2169; Suggett v. Kitchell, 6 Yerger, 425); and, until probate and the appointment of an executor or an administrator cum testamento annexo, the title to the fund passes to the administrator appointed previously, as in case of intestacy, to whom the decree in this case awarded it. The petition is therefore denied. ROUNDTREE v. SMITH & Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR Decided April 16th, 1883. Evidence. When the question at issue is whether certain contracts for the sale and purchase of merchandise were gambling, and the defendant who impeaches 108 269 L-ed 722 110 509 22f 820 108 269 L-ed 722 131 345 149 492 37f 857 Statement of Facts. them in his pleadings, says as a witness testifying about them, "I could not say that I had any understanding on the subject of the nature and character of the board of trade deals, whether the property was to be actually delivered or whether it was be settled for," the court rightly instructed the jury that there was no evidence in regard to this issue which they could consider. Action to recover moneys paid out and expended by the plaintiffs below to the use of the defendant below. The second count in the complaint set forth : "That the said plaintiffs during the time hereinafter mentioned were and are copartners in business in the city of Chicago and State of Illinois under the name and style of Smith & Lightner, and engaged in purchasing and vending grain, pork and lard, and transacting a general commission business as commission merchants. "That on or about the second day of February, 1879, at the city of Chicago aforesaid, said defendant employed said plaintiffs, as such copartners as aforesaid, to purchase large quantities of grain of various kinds and pork and lard for him and to make thereon certain advances of money to and for the use and benefit of said defendant, and also to make sales of said grain, pork and lard for him; and that in consideration of such purchases, and making such advances by said plaintiffs to and for the use and benefit of said defendant, and for making such sales, he agreed to pay and allow them certain reasonable commissions by way of compensation on all such purchases so made by them for him, and on all sales so made by them for him as aforesaid. "That under and pursuant to such employment they, said plaintiffs, in good faith and in the usual course of business, purchased for said defendant, at divers times between the first day of February, 1879, and the twenty-ninth day of April, 1879, large quantities of wheat, pork, lard, oats and corn, to wit, sixteen thousand seven hundred fifty barrels pork, twenty-two hundred fifty tierces of lard, forty thousand bushels of wheat, twenty thousand bushels of oats, and fifty thousand bushels of corn, and made advances thereon for said defendant, which advances amounted in the aggregate to the sum of nine thousand five hundred six dollars and twenty-five cents, and that during the time aforesaid they sold, Statement of Facts. under and pursuant to the directions and authority of said defendant, all of said lard, pork, wheat, oats and corn for said defendant. "That their services in the purchase of said pork, lard, wheat, oats and corn, and making sales thereof, and in making such advances as aforesaid, were reasonably worth the sum of twelve hundred forty-three dollars and seventy-five cents. "That during the time aforesaid the defendant paid, to apply thereon, and was credited by said plaintiffs with divers sums of money, amounting in the aggregate to the sum of five thousand three hundred thirty-seven dollars and fifty cents. "That all of said business transactions were concluded by the sale of the last part of said property on the 29th day of April, 1879; that on that day, after making such last sale and giving the defendant the benefit of all the credits to which he was entitled, there remained due and owing to said plaintiffs from said defendant for such advances so made as aforesaid, and for their commissions on such purchases and sales as aforesaid, the sum of five thousand four hundred twelve dollars and fifty cents, which now remains due and unpaid." The answer admitted the partnership and the employment of the firm, and said that the defendant had deposited large sums in their hands for the purchase of options upon representations made by the firm, and further said— "that certain articles, that is to say, wheat, oats, corn, lard and pork, would probably and almost certainly bear a higher price in the market within a short time than they then bore in such market. That by making contracts agreeing in form to purchase such articles for future delivery at the end of said time above named he would, without receiving or handling, or actually purchasing or paying for the said articles, or any of them, realize large profits from the difference between the price said articles then bore in the market and the price they would probably bear at the end of the time aforesaid; that it would not be necessary, nor was it expected, or in any way understood, that either this defendant or the plaintiffs as his brokers should ever actually see, touch, handle, pay for, or own, receive, or possess any of the said articles. That the large sums of money placed by this defendant in the hands of said plaintiffs should be used to |