in Humphrey v. Humphrey, 7 Conn. 116 and in Norton v. Warner, 9 id. 172; in Maine, in Potter v. Webb, Greenl. 14; in Pennsylvania, in Anderson v. Long, 10 Serg. & Rawle 55, and in Porter v. Seiler, 23 Penn. St. 424; in Indiana, in Church v. Drummond, Ind. 19; in Kentucky, in Morris v. Hazlewood, 1 Bush, 208; in Missouri, in Gutzwiller v. Lackman, 23 Mo. 168; in South Carolina, in Smets v. Plunket, supra, the same doctrine is recognized. See also Attorney-General v. Bowman, 2 Bos. & Pul. 532, note; 1 Phil. Ev. 467, and Cowan & Hill's notes thereto; 1 Starkie's Ev. 366; Barton v. Thompson, 56 Iowa, 571; Dudley v. McCluer, 65 Mo. 241. From an examination and consideration of the authorities, our deduction in the premises is that the decision of Ruan v. Perry has been overthrown; that the rule in Greenleaf in regard to the admission in civil actions of evidence of good character in favor of a party charged with fraud is incorrect, and that in actions like the one at bar, such evidence is irrelevant and incompetent. As an excuse for the admission of the evidence concerning the good character of Westenberger, it is urged that the counsel representing the defendants below opened his case to the jury with the statement that Westenberger and Lowenthal were brothers-in-law; that they had been leagued together for twenty years or more for the purpose of swindling their creditors, and that such counsel upon the trial went back to the years 1864, 1865, 1866, 1867 and 1868 to show by evidence that Westenberger and Lowenthal had been partners; that they had failed; that they had made an assignment which was afterward set aside; that Westenberger afterward went through bankruptcy and was discharged. In the first place, the remarks of counsel to the jury do not appear in the case, and we must decide the question at issue upon the record. But if counsel has made any improper or irrelevant remarks in the opening of his case, such conduct would not authorize the opposing side to introduce, against objection, irrelevant and incompetent testimony. And if any irrelevant testimony was offered upon the trial by defendants below, this would not santion against objection the introduction of opposing testimony of like kind on the other side. But the evidence of Westenberger's transactions referred to may have all been relevant and competent as tending to show whether he was the owner of $28,473.84 of assets in the partnership of S. Lowenthal & Co. at the time of the alleged dissolution on the 10th of January, 1881, and therefore as tending to show whether the chattel mortgage assailed secured an actual indebtedness of the amount named therein. Wallace v. Wylie, 28 Kans. 138. Error is also alleged in the direction of the court to the jury, as plaintiffs in error did not ask for additional instructions, nor indeed for any instruction, and as it seems to be admitted that the instructions given were good law when reduced to abstract propositions, the objection to the charge of the court, under the circumstances, is not sufficient to set aside the verdict and the judgment. On account however of the admission of the irrelevant and incompetent evidence touching the character and reputation of Westenberger for honesty and fair dealing, the judgment of the District Court must be reversed and the cause remanded for a new trial. Valentine, J., concurring. Brewer, J., not sitting. STATUTE OF FRAUDS - LEASE OF SHOOT- ENGLISH COURT OF APPEAL, JUNE 26, 1882. The lessee of a right of shooting verbally agreed with the defendant that the defendant for a sum named should have a share of the shooting and one-fourth of the total game killed. The defendant subsequently refused to carry out the agreement, and the lessee sued him for the breach of it. Held, that the agreement was one relating to an interest in land within the 4th section of the statute of frauds, and not being in writing the plaintiff could not recover upon it. THIS THIS was an appeal from the judgment of Bowen, J., on further consideration. The action was brought to recover damages for the breach of an agreement to share a shooting, and to pay 100l. and one-fourth of the expenses. The defense denied the agreement, and alleged that there was no memorandum in writing within the meaning of the statute of frauds. At the trial it appeared that the plaintiff was the lessee of 500 acres of shooting, and he advertised for a gentleman to share the shooting and the shooting lodge with him. The advertisement, after describing the shooting, went on to say that the "lessee requires a genial sporting companion to join him on equal terms, paying 2001. for his half share of shooting, and receiving half of total of game killed." The plaintiff afterward wrote to the defendant a letter in the following terms: I now write to say that if you think a half-share would be more than you could manage, I should be very pleased to give you half of the share I retain for myself, i. e., 1001. from the 1st September to the 1st February, shooting with equal liberty with myself, and a quarter of the total game killed. shooting days could be arranged to suit our convenience. The It was afterwards agreed between the plaintiff and defendant, by word of mouth, that the defendant should take half of the plaintiff's share aud one-fourth of the game killed. Subsequently, the defendant refused to carry out this agreement. The jury found a verdict for the plaintiff for 401. Bowen, J., reserved the case for further consideration, and gave judgment for the defentant, on the ground that the agreement could not be enforced, as there was no memorandum in writing to satisfy the statute of frauds. From this judgment the plaintiff now appealed. No interest in land passed by this agreement. The case is analogous to Taylor v. Waters, 7 Taunt. 374. This is a mere license to shoot game. Shares in a mine worked on the cost-book principle are not an interest in land. Powell v. Jessop, 18 C. B. 336. The fact that a right of shooting was formerly not ratable, shows that it is no occupation of the land. It must be admitted that Wickham v. Hawker, 7 M. & W. 63, is a decision that a grant of the liberty to hawk, hunt, fish, and fowl is an interest in land; but here the defendant had merely a personal license to join the plaintiff in shooting, which gave him no possession of the land. He also cited Wright v. Stavert, 2 E. & E. 721; Wells v. Mayor of Kingston-upon-Hull, L. 10 C. P. 402; 32 L. T. Rep., N. S. 615. Clarke, Q. C. and Anstie, for defendant were not called upon. JESSEL, M. R. It has, I think, been rightly admitted that a right to shoot and carry away game is an interest in land. Therefore the only question here is whether this was an agreement as to such a right. It appears to me that the plaintiff, who as lessee, owned the right of shooting, agreed to give the defendant the right to shoot game, and to carry away some of the game shot by both parties, that is, every fourth bird shot by either. This right therefore was a profit à prendre, and requires authentication in the manner enacted by the statute of frauds. The appeal must be dismissed. BRETT, L. J. I think that it has rightly been admitted that the grant of a right to shoot and carry away game is within the statute of frauds, although if it had not been for the decisions, I should have thought that such a right would not have been considered to be an interest in land. The plaintiff had from his lessor therefore a right of profit à prendre, a grant of which must be made in writing. The plaintiff having agreed to give the defendant a share of that right, it is not unreasonable to hold that that grant must also be in writing. COTTON, L. J. It is conceded that the right to take dead game is a right of profit à prendre. A grant therefore of the right to another is a grant of a profit à prendre. I had some doubt as to the meaning of the agreement, but on the whole, I think that the plaintiff agreed to give the defendant one-fourth share of what he himself had. It cannot, I think, be said that the defendant had no right to go out and shoot unless the plaintiff was able to go. The agreement gave the defendant a right to shoot and carry away game. The decision therefore of Bowen, J., was right. Judgment affirmed. UNITED STATES CIRCUIT COURT ABSTRACT. BROKER-SALE OF REAL ESTATE BY; WHEN CONSUMMATED.—A contract to sell real property for a commission is performed when the broker procures a person, who is able to pay for the same, to enter into a valid contract to purchase upon the terms proposed, or when he induces such person to offer to pay for the property, and take a conveyance thereof, upon being allowed a reasonable time to examine the title thereto, which offer is refused by the owner, on the ground that the time allowed the broker within which to effect the sale is about to expire. In McGavock v. Woodlief, 20 How. 221, the Supreme Court, in a case involving this question, says: "The broker must complete the sale; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on before he is entitled to his commissions. Then he will be entitled to them, though the vendor refuse to go on and perfect the sale." See also Middleton v. Findla, 25 Cal. 76; Blood v. Shannon, 29 id. 359; Phelan v. Gardner, 43 id. 306; Knapp v. Wallace, 41 N. Y. 477; Fraser v. Wyckoff, 63 id. 445; Cook v. Fiske, 12 Gray, 491. U. S. Circ. Ct., Oregon, September 27, 1882. Watson v. Brooks. Opinion by Deady, D. J. CORPORATION — INSOLVENCY OF CREDITOR'S BILL AGAINST SHAREHOLDERS — FOREIGN JUDGMENTS.— (1) Creditors and stockholders of an insolvent non-resident corporation may unite in a suit in behalf of themselves and other creditors and stockholders, to enforce the liability of holders of unpaid shares of the capital stock of such corporation without making the nonresident corporation a party. Where stockholders are indebted to the corporation on stock subscriptions, the sum due may be reached by a creditor's bill; and where, by any dealings between the corporations and its stockholders the capital stock which is a fund for the payment of its debts is wrongfully diverted, a creditor can reach it. The court of equity assists him, not in the exercise of its jurisdiction over trusts, but in the exercise of its auxiliary jurisdiction in behalf of creditors. It is only when the remedy at law has been exhausted that a creditor acquires the right * Appearing in 13 Federal Reporter. to follow the property of a debtor in the hands of his trustee, and a relaxation of the strict rule requiring a creditor to exhaust his legal remedy before resorting to a creditor's bill will not be justified by the fact of the insolvency of the debtor, or that the debtor has no leviable property. Where some of the creditors only had recovered judgments in the State courts where such non-resident corporation existed, and had issued execution thereon, which were returned unsatisfied, the suit will be treated as a creditor's bill, and the complainants as creditors at large (2) Judgments obtained in another State are in this State only contract debts, and do not authorize the exercise of auxiliary jurisdiction. They do not have the force and operation of domestic judgments, except for purposes of evidence. See Egberts v. Wood, 3 Paige, 517; Dunleavy v. Tallmage, 32 N. Y. 457; McDermutt v. Strong, 4 Johns. Ch. 687; Spader v. Davis, 5 id. 280; Jones v. Green, 1 Wall. 330; Wood v. Dummer, 3 Mason, 308; Bank of St. Mary's v. St. John, 25 Ala. 566; Claflin v. McDermott, 12 Fed. Rep. 375; Tarbell v. Griggs, 3 Paige, 207; McElmoyle v. Cohen, 13 Pet. 312. S. D New York, September 7, 1882. man. Opinion by Wallace, C. J. U. S. Circ. Ct., Walser v. Selig JURISDICTION -OF CIRCUIT COURT-PATENT - REMAND.- (1) The subject-matter of contracts made in relation to patents, where neither the validity of the patent nor its infringement is concerned in the controversy, does not give the courts of the United States jurisdiction. The rights of the patentee under the patent laws of the United States must be directly and not collaterally brought in issue to give jurisdiction. (2) Where, after the removal of a cause wherein the requisite citizenship and the amount in controversy do not exist, and it is found by the pleadings that the subject-matter is one in which a statute of the United States is only incidentally brought in question, the court will of its own motion remand the cause. See Brooks v. Stolley, 3 McLean, 523; Hartell v. Tilghman, 99 U. S. 555; Goodyear v. Day, 1 Blatchf. 565; Goodyear v. Union Rubber Co., 4 id. 63; Blanchard v. Sprague, 1 Cliff. 289; Messerole v. Union Pap. Col. Co., 6 Blatchf. 356; Wilson v. Sanford, 10 How. 99; Rich v. Atwater, 16 Conn. 409; Middlebrook v. Broadbent, 47 N. Y. 443. U. S. Circ. Ct., New Jersey, August 25, 1882. Teas v. Albright. Opinion by Nixon, J. REMOVAL OF CAUSE ACT OF 1867- -CITIZENSHIP. – A citizen of an Indian territory, not being a citizen of a State, cannot remove a cause into the Circuit Court from a State Court under the act of 1867 (U. S. R. S., § 639, subd. 3). The statute only gives the right of removal in suits where there is a controversy between a citizen of the State in which the suit is brought and the citizen of another State; and the uniform ruling of the courts has been that a resident of a territory is not a citizen of a State, so as to give him the right to sue a citizen of another State in the Federal courts. This was so held in New Orleans v. Winter, I Wheat. 91, and has been followed by all the Federal courts since. Hepburn v. Ellzer, 2 Cranch, 445; Vasser v. Mifflin, 4 Wash. C. C. 519; Picquet v. Swan, 5 Mason, 35; Prentis v. Brennan, 2 Blatchf. 162; Barney v. Baltimore, 6 Wall. 280; Cissel v. McDonald, 16 Blatchf. 150. U. S. Circ. Ct., N. D. Illinois, July, 1882. Darst v. City of Peoria. Opinion by Blodgett, D. J. UNITED STATES SUPREME COURT ABSTRACTS. APPEAL -BY ONE OF JOINT PARTIES WITHOUT SEVERANCE NOT ALLOWED. - F. & V. as partners sued to recover damages for the seizure of their partnership goods by P. as United State Marshal. Judgment was rendered against plaintiffs. F. alone brought writ of error and there was no summons and severance or other equivalent proceeding. Held, that the writ must be dismissed. Williams v. Bank U. S., 11 Wheat., 414; Masterson v. Herndon, 10 Wall. 416; Simpson v. Greeley, 20 id. 152. Writ to U. S. Circ. Ct., Louisiana dismissed. Feibelman v. Packard. Opinion by Waite, C. J. [Decided November 13, 1882.] -- LIFE INSURANCE— FORFEITURE-ESTOPPEL BY WAIVING PAYMENT OF PREMIUM WHEN DUE. (1) A life insurance policy provided that in case of non-payment of annual premium when due the policy should be forfeited. The premiums were paid, one-half for four premiums in notes, which bore interest, and one-half in cash. After the fourth premium the dividends on the policy were to be applied toward the premium, the rest to be paid in cash. The second, third, fourth and fifth premiums were paid some days after due and were received without objection. Before the payment in each instance the insured was notified by the company's general agent, the notice in respect to the fifth premium stating the amount of dividend to be applied to the payment. The sixth premium came due September 20, 1876, and insured made provision for its payment as soon as he should receive the notice so that he could know the amount due. This notice, similar to the one sent the year before, was on October 4, sent by the agent mentioned to insured by mail, but did not reach him by reason of being misdirected. On the 6th of October insured was killed by a railroad accident. On the 9th of October the premium due September 20, was tendered to the company, but was refused. Held, that the company were liable on the policy. In Insurance Co. v. Norton, 96 U. S. 239, it was said, in reference to a policy, similar to the one here in suit, that the company was not bound to act upon the declaration that its agents had no power to make agreements or waive forfeitures, but might, at any time, at its option, give them such power; that the declaration was tantamount to a notice to the insured, which the company could waive and disregard at pleasure. "In either case," said the court, "both with regard to the forfeiture and to the powers of its agents, a waiver of the stipulation or notice would not be repugnant to the written agreement, because it would only be the exercise of an option which the agreement left in it. And whether it did exercise such option or not, was a fact provable by parol evidence, as well as by writing, for the obvious reason that it could be done without writing." In the same case it was said, that although in life insurance time of payment was material, and could not be extended against the assent of the company, where such assent was given, the court should be liberal in construing the transaction in favor of avoiding a forfeiture. And in Insurance Co. v. Eggleston, 96 U. S. 577, it was said that the courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Consequently said the court, speaking by Bradley, J. "Any agreement, declaration or course of action, on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture. The representations, declaration or acts of an agent, contrary to the terms of the policy, of course will not be sufficient, unless sanctioned by the company itself. Insurance Co. v. Mowry, 96 U. S. 544. But when the latter has, by its course of action, ratified such declarations, representations or acts, the case is very different. The case Thompson v. Insurance Co., 104 U. S. 258, distinguished. (2) A case which fairly depends upon the effect or weight of testimony should not be withdrawn from the jury, unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict returned in opposition to it. Judgment of U. S. Circ. Ct., Kansas, affirmed. Phoenix Mutual Life Insurance Co. v. Doster. Opinion by Harlan, J. [Decided October 28, 1882.] PRACTICE -AFFIDAVIT OF DEFENSE -TRIALHARMLESS ERROR APPEAL EVIDENCE.-(1) A rule of court governing the pleadings and practice in Michigan provides, that where a defendant insists on a claim by way of set-off, founded on a written instrument, he cannot be put to the proof of the execution of the instrument or the handwriting" of the opposite party, unless an affidavit is filed "denying the same." Held, that the want of such affidavit does not prevent the plaintiff from showing that such an instrument, dated January 2d, was executed on Sunday, January 1st. Held also, that the want of such affidavit does not prevent the plaintiff from showing that his duplicate of an instrument, executed in duplicate by him and the defendant, differed in its contents from the one retained by the defendant. Pegg v. Biddleman, 5 Mich. 26; Thomas v. Clark, 2 McLean, 194; Pratt v. Willard, 6 id. 27; Curran v. Rogers, 35 Mich. 222. (2) The quality of goods furnished at a given time by the plaintiff to the defendant being in question, it is competent for the plaintiff to show that the quality of like articles furnished at the same time by him to another party was good, if such evidence be followed by evidence that the goods furnished by him at that time to such other party and the goods furnished by him at that time to the defendant were of the same kind and quality. (3) Where the state of the evidence is such that there is no question for the jury as to a given matter, a charge and a refusal to charge in regard to such matter are not erroneous, because they work no injury to the party excepting. A charge that while the plaintiff could not recover for any more goods than his bill of particulars sets forth, he was not bound by a mistake in carrying out the rate or price, but could show what he was actually to have, it not appearing by the record what were the contents of the bill of particulars, but it appearing that the plaintiff claimed there was a mistake in it in that respect, held not to have been erroneous. (4) After this court has reversed a judgment and ordered a new trial, and the new trial has been had, with a second judgment, this court cannot, on a writ of error to review the second judgment, review its own judgment on the first writ of error. Judgment of U. S. Circ. Ct., W. D. Michigan, affirmed. Ames v. Quimby. Opinion by Blatchford, J. [Decided November 13, 1882.] OHIO SUPREME COURT ABSTRACT. JANUARY TERM, 1882. BOND NAME OF OBLIGOR NEED NOT APPEAR IN BODY.-To charge one as obligor, who has signed a bond or written undertaking, it is not necessary that his name should appear in the body of such instrument, provided the intention that he shall be so charged appears clearly from its terms, taken in connection with the circumstances attending its execution. In Kursely v. Sheuberger, 5 Watts, 193, it was said: "If ever there was a time when courts listened to trivial and verbal inaccuracies in contracts, when the real meaning and intention of the parties was plain, that time has gone by, and the only object of the court is that when the meaning and intention of the parties are perfectly plain, no grammatical inaccuracy, or want of the most appropriate words, shall render the instrument unavailing." In Ahrend v. Odiorne, 125 Mass. 50, it was held that when one signs a bond as a party thereto, it is immaterial that he is not named in the bond. A bond was: "I, William Bush, am held," etc., "to which judgment," etc., "I do bind myself, my heirs," etc., "and every one of them." "Sealed with my seal," etc., with condition" the said William Bush" should account for money received as collector of school taxes, etc. The bond was signed and sealed by Bush and four others. Held, that it was the joint and several bond of all. Leath v. Bush, 61 Penn. St. 395. See also McLain v. Simmington, 37 Ohio St. 484; Schud v. Leibshutz, 51 Ind. 38. Partridge v. Jones. Opinion by Longworth, J. EXECUTOR -OF SURVIVING PARTNER MUST SETTLE PARTNERSHIP AFFAIRS -COMPENSATION.- The executor or administrator of a surviving partner, who dies with partnership assets in his possession and while he is engaged in settling the partnership business, is entitled to the possession of such assets, and is charged with the duty of completing such settlement, unless relieved from that duty by contract, or by an order of a competent court. Since the leading case of Robinson v. Pett, 3 P. W. 132, it is the established rule in England that a trustee, executor or administrator, can have no allowance or compensation for his time and trouble in the execution of his trust. As stated by the Lord Chancellor in that case, the reason for this rule seems to be "for that if allowed the trust estate might be 1aded and rendered of little value, besides the greater difficulty there might be in settling and adjusting the quantum of such allowance, especially as one man's time may be more valuable than that of another; and there can be no hardship in this respect upon any trustee, who may choose whether he will accept the trust or not." This rule applies not only to trustees strictly so called, but also to all who hold fiduciary relations as executors and administrators, mortgagees, receivers, guardians and officers, directors and trustees of corporations. Perry on Trusts, § 904. He is not, as a matter of law, precluded from receiving compensation out of the partnership funds for his services in the performance of his duty. While those exercising such fiduciary relations had inherent equitable right to be reimbursed all reasonable expenses in the execution of the trust, yet the rule at that early day seems to have been inflexible, that they should have no allowance for personal services, or for loss of time in performance of their duties. This rule against allowing compensation was borrowed from the Roman law, and has been ably defended in many cases. In Manning v. Manning, 1 Johns. Ch. 534, Chancellor Kent approves the rule in decided terms, and expresses the opinion that it would have an unfavorable influence on the prudence and diligence of trustees, were we to promote, by the hopes of reward, a competition, or even a desire for the possession of private trusts that relate to the moneyed concerns of others. This rule was equally applicable to an executor or administrator of a surviving partner was a trustee, bound to serve without compensation in winding up the firm business, so his personal representative was bound to complete the execution of this trust as a gratuitous duty. Stockton v. Dawson, 6 Beav. 371; Bendon v. Bendon, 1 V. & B. 180. The English rule has never been received with favor in this country. It was found that the subject of a trustee's compensation was intimately connected with that of his liability. It was claimed and even decided that the gratuitous nature of his services distinguished him from a bailee for hire, and that he was only liable for very supine negligence, but the foundation of this distinction fails, when the trust has been accepted on terms of receiving a stipulated reward. Ex parte Cassell, 3 Watts, 443. In that case it was said that a trustee is only auswerable for such gross negligence as to be evidence of willful misconduct, but that rule is not for cases in which the trustee is to receive a stipulated compensation. In Boyd v. Hawkins, 2 Dev. Eq. 334, it was said: "The state of our country and the habits of our people are so different as to have induced the Legislatures of nearly all the States to introduce provisions by statute for competent remuneration to those to whom the law commits the care and charge of the estates of infants and deceased persons. * * And the equity of the statute is by construction generally extended to conventional trustees when the agreement is silent." In Barney v. Saunders, 16 How. 542, where the general rule is comprehensively stated in favor of compensation for a proper execution of a trust. It is there stated that: "In England the courts of equity adhere to the principle which has its origin in the Roman law, that a trustee shall not profit by his trust,' and therefore a trustee shall have no allowance for his care and trouble. A different rule prevails generally, if not universally, in this country. Hence it is considered just and reasonable that a trustee should receive a fair compensation for his services." Dayton v. Bartlett. Opinion by Johnson, J. * PARTY ONE MAKING CONTRACT IN OWN NAME MAY SUE TO ENFORCE-DEFENSE.- A party entering into a contract in his own name may sue or be sued upon it, whether he be in fact agent or principal. Where a landlord with the consent of his tenants sold their share of a crop of corn with his own, and afterward brought an action against the purchaser for not accepting the corn, the fact that the landlord did not own all the corn neither constituted a defense nor operated to diminish the damages. If the acceptance of the corn by the purchaser would have invested him with a good title, it is not material whether the landlord owned all the corn or not. Nixon v. Nixon, 21 Ohio St. 114; Bell v. Offutt, 10 Bush, 632. Davis v. Harness. Opinion by White, J. MICHIGAN SUPREME COURT ABSTRACT. ABATEMENT-SUIT IN BEHALF OF INFANT AS JOINT PARTY WITHOUT NEXT FRIEND.- In a suit on an insurance policy on the life of S. for the benefit of his wife and children, the wife and children were joined as co-plaintiffs, no next friend being appointed for the children. Held, not ground for a plea in abatement. If the infants alone had been the beneficiaries, a next friend must have been appointed for them before instituting suit; Comp. Laws, § 6531; Wilder v. Ember, 12 Wend. 191; but this is in order that the defendant may have some one responsible to him for costs; and the statute has made no such requirement where the infants are joined with an adult plaintiff. Still there must be even in such cases some competent party representing on the record the interests of the infant plaintiffs, and the authorities seem to have recognized no exception to this rule, except the case of joint executors, some of whom are under age and others not. As the authority is joint in such a case the adult executors represent all. 1 Tidd, Pr. 99; 2 Saund. 212a, notes 4 and 5; Cro. Eliz. 541; though if the suit were against the executors the infants must appear by guardian. Frescobaldi v. Kinaston, Strange, 783. But it is not essential that a next friend should be appointed by the court itself; it is only necessary that the court should recognize his representative capacity and not dissent. Apthorp v. Backus, Kirby, 409; Judson v. Blanchard, 3 Conn. 579; Stewart v. Crabbin's Guardian, 6 Munf. 280. And any proper person may present himself and be accepted for this purpose where no reason appears to the contrary. Stephenson v. Stephenson, 3 Hayw. 123. This case is peculiar. The mother-the father being dead -sues in the joint right of herself and her minor children, naming them as co-plaintiffs with her. She does not designate herself as next friend, but she is the natural guardian of the children, and is really and manifestly proceeding as such. The appointment in such a case would be a mere formality, and the failure to make it would be cured by verdict. King v. King, 37 Ga. 205. It is clear then that the suit should not be abated. Presumptively it is a meritorious suit, and the court should direct an amendment instead of sending the infants out of court for a defect so easily remedied. Young v. Young, 3 N. H. 345. Sick v. Michigan Aid Association. Opinion by Cooley, J. [Decided June 27, 1882.] AGENCY- -POWER TO SELL LAND NOT AUTHORITY TO MORTGAGE.- A power to an agent to sell land does not give him authority to mortgage the land. Such a power is not to be extended by construction. The principal determines for himself what authority he will confer upon his agent, and there can be no implication from his authorizing a sale of his lands that he intends that his agent may at discretion charge him with the responsibilities and duties of a mortgagor. Wood v. Goodridge, 6 Cush. 117; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Ferry v. Laible, 31 N. J. Eq. 566; Kinney v. Mathews, 69 Mo. 520; Patapsco v. Morrison, 2 Woods, 395; Devagnes v. Robinson, 24 Beav. 386. Jeffrey v. Hursh. Opinion by Cooley, J. [Decided June 27, 1882.] EJECTMENT VARIANCE - LIMITATION-ESTOPPEL. -(1) In an action of ejectment when a joint title is laid in several plaintiffs, a title in a less number is not provable. Doe v. Butler, 3 Wend. 149; Gillett v. Stanley, 1 Hill, 121. (2) When a limitation commences against one in ownership its progress is not arrested by a devolution in ownership. Smith v. Hill, 1 Wils, 134; Cotterell v. Dutton, 4 Taunt. 826; Rhodes v. Smethurst, 4 Mees. & W. 42; s. c., 6 id. 351; Eages v. Com., 4 Mass. 182; Peck v. Randall, 1 Johns. 165; Demarest v. Wyncoop,3 Johns. Ch. 129; Jackson v. Wheat, 18 Johns. 40; Dillard v. Philson, 5 Strobh. 213; Byrd v. Byrd, 28 Miss. 144; Seawell v. Bunch, 6 Jones, Law, 197; Tracey v. Atherton, 36 Vt. 503; Reimer v. Stuber, 20 Penn. St. 458; Stephens v. McCormick, 5 Bush, 181; Ruff v. Bull, 7 Harr. &. J. 14; Pinckney v. Burrage, 31 N. J. Law, 21; Lewis v. Barksdale, 2 Brock. 436; Walden v. Gratz, 1 Wheat. 292; Mercer v. Selden, 1 How. 37; Hogan v. Kurtz, 94 U. S. 773; Becker v. Van Valkenburgh, 29 Barb. 324; Allis v. Moore, 2 Allen, 306; Currier v. Gale, 3 id. 328; Keil v. Healey, 84 Ill. 104; Cozzens v. Farnam, 30 Ohio St. 491. (3) The exclusive warrant for an estoppel resting on equitable considerations is, that it is necessary to sustain the cause of right and justice. Ferguson v. Millikin, 42 Mich. 441; Royce v. Watrous, 73 N. Y. 597; Buckingham v. Hanna, 2 Ohio St. 551; Van Rensselaer v. Kearney, 11 How. 297. It does not exist under implications which render the purpose sought unjust, as when it would give the property of defendant to plaintiffs without any equitable reason: See Morrill v. Mackman, 24 Mich. 279; Ryder v. Flanders, 30 id. 336; Burdick v. Michael, 32 id. 246; Vannetter v. Crossman, 42 id. 465; Maybee v. Sniffin, 16 N. Y. 560; Owen v. Bartholomew, 9 Pick. 520; Wade v. Saunders, 70 N. C. 270; Trenton Banking Co. v. Duncan, 86 N. Y. 221. De Mill v. Moffat. Opinion by Graves, C. J. [Decided October 4, 1882.] SURETYSHIP -- IMPLIED EXTENSION OF LIABILITY. - The sureties upon an official bond undertake for nothing which is not within the letter of their contract. The obligation is strictissimi juris; and nothing is to be taken by construction against the obligors. They have consented to be bound to a certain extent only, and their liability must be found within the terms of that consent. Paw Paw v. Eggleston, 25 Mich. 36, 40; Detroit v. Weber, 29 id. 24; Johnston v. Kimbail, 39 id. 187; Bullock v. Taylor, id. 137; U. S. v. Boyd, 15 Pet. 187; State v. Cutting, 2 Ohio, 1; McCluskey v. Cromwell, 11 N. Y. 593; Urmston v. State, 73 Ind. 175. But where one is appointed teller of the savings department of a bank subordinate to the general teller, and both tellers are subordinate to the cashier and he occasionally acts as teller in the absence of the general teller, such temporary assistance must be implied to be a part of his official duty contemplated as customary in the general course of business and his sureties will be liable for his default while acting as general teller. Minor v. Mechanics' Bank, 1 Pet. 46; Rochester City Bank v. Elwood, 21 N. Y. 88; and German-American Bank v. Auth, 87 Penn. St. 419. Detroit Savings Bank v. Zeigler. Opinion by Cooley, J. [Decided October 11, 1882.] MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT. JUNE, 1882. BILL OF LADING HOLDERS OF ENTITLED TO PROPERTY AND MAY SUE FOR CONVERSION OF.-The firm of G. & Co. in Chicago shipped by a line of connecting carriers of which the defendant railroad company was one, a quantity of corn, taking a bill of lading by which it was consigned to the order of G. & Co. at Boston. This bill was attached to a draft on F. & Co. and forwarded to the T. Bank at Boston. The T. Bank presented the draft and bill of lading to F. & Co. who paid the draft and received the bill and draft. F. & Co. immediately indorsed the draft and bill to plaintiffs to secure an advance of the full amount of the draft. The corn arrived in Boston October 30, and remained in the cars in defendant's possession until December 12, when by the order of F. & Co. defendant shipped it abroad. F. & Co. presented no bill of lading, defendant trusting in their statement that they had one. Held, that defendant was liable to plaintiffs for conversion of the corn. The bill of lading, though not strictly a negotiable instrument like a bill of exchange, was the representative of the property itself; it was the means by which the property was put under the power and control of the plaintiffs, and the delivery of it was for most purposes equivalent to an actual delivery of the property itself. All the authorities show that the plaintiffs took either a general or a special property in the corn, which entitled them to recover of any one who wrongfully converted it. De Wolf v. Gardner 12 Cush. 19; First Nat. Bank of Cairo v. Crocker, 111 Mass. 163; First Nat. Bank of Greenbay v. Dearborn, 115 id. 219; First Nat. Bank of Chicago v. Bayley, id. 228; Hathaway v. Haynes, 124 id. 311. The delivery of the bill of lading was in law the delivery of the property itself, and it was not necessary that the plaintiffs should take immediate possession of it upon its arrival, or that they should give notice to the carrier or warehouseman who held the property. Farmers' & Mechanics' Bank v. Logan, 74 N. Y. 568. Forbes v. Boston & Lowell Railroad Co. Opinion by Morton, C. J. INSURANCE - LIFE POLICY WARRANTY — CONDITIONS.-When a condition of a life insurance policy was that the application should be considered part of |