in the decree, after establishing the common right, a division is made among the claimants according to their respective interests, this separation of the decree into parts will not prevent an appeal. There are necessarily in the case as many separate and distinct controversies as there are separate claimants and intervenors. The purchasers have the right to contest each claim separately. They stand in the same relation to the several claimants that the ship-owner did in Oliver v. Alexander, 6 Pet. 113, to the seamen, or the alleged fraudulent grantee in Seaver v. Bigelows, 5 Wall. 208, to the judgment creditors. The several intervenors do not, as in The Connemara. 103 U. S. 754, claim under one and the same title, and it is material to the purchasers how much is allowed to each and every one, for the amount of the recovery is not determined by any fixed sum, but by the aggregate of all the separate sums allowed the several claimants individually. Appeal from decrees of U. S. Circ. Ct., Indiana, dismissed. Farmers' Loan and Trust Co. v. Waterman. Opinion by Waite, C. J. [Decided Nov. 13, 1882.]

JURISDICTION OF SUPREME COURT- UNDER FEDERAL QUESTION PROVISION - CONSTITUTIONAL LAW. -If the judgments of the courts of States are to be reviewed here upon questions under U. S. R. S., § 709, viz. That the validity of a treaty or statute of, or an authority exercised under, the United States" has been drawn in question and the decision is against their validity; or that "the validity of a statute of, or an authority exercised under, any State" has been drawn in question “on the ground of their being repugnant to the Constitution, treaties, or laws of the United States," and the decision is in favor of their validity; or that some "title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of or commission held or authority exercised under the United States, and the decision is against the title, rights, privilege or immunity,' so claimed, it should be only when it appears unmistakably that the court either knew or ought to have known that such a question was involved in the decision to be made. The rule was stated by Miller, J., in Bridge Proprietors v. Hoboken Co., 1 Wall. 143, thus: "The court must be able to see clearly, from the whole record, that a certain provision of the Constitution or act of Congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied." While Story, J., in Crowell v. Randall, 10 Pet. 368, said that it was not necessary that the question should appear on the record to have been raised and the decision made in direct and positive terms, ipsissimis verbis; and that it was sufficient if it appeared by clear and necessary intendment that the question must have been raised, and must have been decided in order to have induced the judgment; he also said it was "not sufficient to show that a question might have arisen or been applicable to the case; unless it is further shown, on the record, that it did arise, and was applied by the State court to the case." Writ of error to Colorado Sup. Ct., dismissed. Brown v. State of Colorado. Opinion by Waite, C. J.

In such case the grantee is not entitled, by reason of her coverture, to have the sale set aside, and the purchase-money already paid refunded, though consenting to account for rents and profits, nor will she, or her husband, be allowed for permanent improvements erected by them. In such case, also, in a State where by contract, interest above the ordinary legal rate may be stipulated for, such interest may be recovered under the vendor's lien if agreed to be given in the notes for purchase-money. The authorities are numerous and conclusive to the effect, that a feme covert may, with her husband's consent, take land by purchase, and that a security given thereon by her for the purchase-money will be enforced. It was so held by this court in the case of Chilton v. Braiden's Administratrix, 2 Black. 458, where a lien for the unpaid purchasemoney of land sold to a married woman was enforced by a decree for the sale of the land. Grier, J., said: "When one person has got the estate of another, he ought not, in conscience, to be allowed to keep it without paying the consideration. It is on this principle that courts of equity proceed as between vendor and vendee. The purchase-money is treated as a lien on the land sold, where the vendor has taken no separate security." In a case decided by the chancellor of New Jersey, Armstrong v. Ross, 5 C. E. Green, 109, where property was sold and conveyed to a married woman, and she and her husband executed a mortgage for the purchase-money, but the execution by the wife was void because she was not privately examined, it was nevertheless held that the vendor had a lien for the purchase-money, and also that the mortgage, being given for the benefit of her separate estate, although void as a mortgage, might be decreed a lien on such separate estate. In Willingham v. Leake, Baxter, 453, it was held by the Supreme Court of Tennessee that where land was sold and a title bond given to a married woman, who gave her notes for a part of the purchase-money, the vendor's lien could be enforced, although the notes might be void as against the vendee personally. In the subsequent case of Jackson v. Rutledge, 3 B. J. Lea, 626, the same court held that if a married woman buy land, partly for cash and partly on time, and accept a deed of conveyance to her separate use, a lien being retained for the unpaid installments, she cannot have the money which she has paid refunded merely because of her coverture, and the lien reserved for the payment of the purchase-money may be enforced in equity. See also Lee v. Newman, 1 Memph. L. J. 189; Eskridge v. Eskridge, 51 Miss. 522. Decree of U. S. Circ. Ct., M. D. Tennessee, affirmed. Bedford v. Burton. Opinion by Bradley, J. [Decided Nov. 13, 1882.]

REMOVAL OF CAUSE- UNDER ACT OF 1875 - CITIZENSHIP OF PARTIES.-A. and B., who were not citizens of Michigan, and five others, who were citizens of Michigan, contested in a probate court of that State the will of C., of whom they were heirs at law, on the ground that he was mentally incompetent to make such will, and that the same was procured by undue influence. After a hearing, the will was admitted to probate and letters testamentary granted thereunder. By the laws of Michigan the order for the probate of a will, as long as it remains unreversed, is conclusive evidence of the due execution of the will, but any person aggrieved by such an order may appeal to the Circuit Court of the county, by filing in time a notice to that effect with the judge of probate, with his reasons therefor, and also an appeal bond. Notice of the appeal must be given to the adverse party, and copies of the proceedings in the probate court filed in the Circuit Court. After the case gets to the Circuit Court, that court is required to "proceed to the trial and determination of the question according to the rules of

law, and if there shall be any question of fact to be decided, issue may be joined thereon under the direction of the court, and a trial thereof had by a jury." The Circuit Court may make such order or decree as the judge of probate ought to have made, and remit the case to the probate court for further proceedings. After the will was admitted to probatc A. and B. appealed to the Circuit Court of the county, as did also the other contestants. The appeals were in form separate, but every thing in reference to them was done at the same time. As soon as the issues were joined in the Circuit Court, A. and B. petitioned for a removal to the Federal Circuit Court. Held, that they were not entitled to a removal. The contest in this case was begun by citizens of Michigan jointly with citizens of other States against other citizens of Michigan. There was but a single proceeding, and that between all the contestants on one side and all the proponents on the other. There was but one judgment, and that against all the contestants. From the very nature of the proceeding there could have been no other. Either all the contestants must succeed or all fail. They were all heirs-at-law, and whether the will was established or set aside, it would affect them all alike and in the same right. Unless there was in the proceeding, as it stood in the Circuit Court of the State, a separate controversy which was wholly between citizens of different States, and which could be fully determined between them, there could not, according to the rule established in the Removal Cases, 100 U. S. 457, and Blake v. McKinn, 103 U. S. 336, be any removal to the Circuit Court of the United States under the act of March 3, 1875, ch. 137. The case Barney v. Latham, 103 U. S. 205, distinguished. See Hyde v. Ruble, 105 U. S. 99. of U. S. Circ. Ct., E. D., Michigan, affirmed. v. Jennison. Opinion by Waite, C. J. [Decided Nov. 20, 1882.]

Order Frazer

WISCONSIN SUPREME COURT ABSTRACT.

CARRIER -SPECIAL CONTRACT LIMITING LIABILITY, DOES NOT RELIEVE FROM LIABILITY FOR LOSS BY NEGLIGENCE. It is well settled that a common carrier of persons or property cannot by any agreement, however plain and explicit, wholly relieve itself from liability for injury resulting from its gross negligence or fraud. It is also settled that in order to exempt the carrier from liability, or to limit the extent of its liability for injury caused by its own negligence of any kind, the contract must expressly so provide. A contract providing that in case of loss the carrier shall be liable to pay, as damage, a specified sum, will not, without an express stipulation to that effect, relieve the carrier from liability to the full amount of the value of goods lost through its negligence. So the words "liquor carried at val. $20 per bbl." stamped upon the face of a receipt, if they can be construed into a contract to limit the liability of the carrier to the sum of $20 in case of loss, must be so construed as to limit such liability only in case of loss without the fault of the carrier. The non-delivery of goods intrusted to a carrier, and its admission that the same are lost so that it cannot make delivery, are presumptive evidence of negligence on its part. See New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Ex. Co., 93 U. S. 174; Candee v. Telegraph Co., 34 Wis. 471; Hibbard v. Telegraph Co., 33 id. 558; Morrison v. Construction Co., 44 id. 405; Wescott v. Fargo, 61 N. Y. 542; Hart v. Railroad Co., 7 Fed. Rep. 630; Musser v. Express Co., 1 id. 382; Belger v. Dinsmore, 51 N. Y. 166; Kirkland v. Dinsmore, 62 id. 171; Magnin v. Dinsmore, 70 id. 410; Sewall v. Allen, 6 Wend. 347; Phillips v. Earle, 8 Pick. 182; Steers v. Liverpool St.

BANK REMITTING LOSS OF DRAFT AT REQUEST OF OWNER. - One who requests a bank to remit to him by draft the money which he has on deposit therein, and which by the rules of the bank is payable only at its counter, assumes the risk of transmission of the draft in the usual way by mail; and the mailing of such draft properly addressed, discharges the debt of the bank to him. In transmitting such draft the bank may adopt the address contained in the letter requesting the remittance, and is not bound to use a more particular designation or mode of address for the purpose of insuring delivery to the proper person. Burr v. Stickless, 17 Ark. 428; Graves v. American Exch. Bank, 17 N. Y. 205. Jung v. Second Ward Savings Bank. Opinion by Cole, C. J. [Decided Sept. 9, 1882.]

WATER-COURSE -OBSTRUCTION OF ANCIENT DITCH LIABILITY FOR LIMITATION OF ACTION.

(1) A complaint alleged in substance that defendants wrongfully built a dam, upon or near the north line of their lands, across a ditch which drained the plaintiff's land, and which had been cut along the line of his land, and thence northwest beyond the north line of defendants lands; and that they had maintained such dam since May, 1870, and had thereby flooded and overflowed and continued to flood and overflow the plaintiff's land to his damage, etc. Held, on demurrer to state a cause of action. There is nothing in the complaint from which it can be inferred that the water which overflowed the plaintiff's land was mere surface water, and it does not appear, that the damor any part of the ditch was on defendants land. The water having continuously flowed along the ditch since May, 1870, the plaintiff is presumptively entitled to have continue such flowage as against the defendant. The rule of the civil law, as stated by Pothier, was "each of the neighbors may do upon his heritage what seemeth just to him, in such manner nevertheless that he doth not injure the neighboring heritage." This rule has been adopted and followed, in some of the States where the common law is in force, as being based upon sound reasons of equity and justice." Shane v. Ry. 71 Mo. 237; McCormick v. Ry., 78 id. 431; Kaufman v. Griesmer, 26 Penn. St. 407; Miller v. Laubach, 47 id. 154; Gillman v. Ry. 49 111. 484; Gormley v. Sandford, 52 id. 158; T., W. & W. R. Co. v. Morrison, 71 id. 616; J., N. W. & S. E. R. Co. v. Cox, 91 id. 500; Butler v. Peck, 16 Ohio St. 334; Overton v. Sawyer, 1 Jones Law, 308; Livingston v. McDonald, 21 Iowa, 180; Adams v. Walker, 34 id. 466; Ogburn v. Connor, 46 Cal. 392. Chief Justice Breese says this doctrine "has found favor in almost all the common law courts of this country and England." 49 Ill. 486. In Hoyt v. Hudson, 27 Wis. 658-9. however, Dixon, C. J., took occasion to reject the rule of the civil law and adopt that of the common law, which is defined as follows: "The doctrine of the common law is that there exists no such natural easement or servitude in favor of the owner of the superior or higher ground or fields, as to mere surface water, or such as falls or accumulates by rain or the melting of snow, and that the proprietor of the inferior or lower tenement or estate may, if he choose, lawfully obstruct or hinder the natural flow of water thereon, and in so doing may turn the same back upon or off, on, to or over the lands of other proprietors without liability for injury ensuing from such obstructions or diversions." The rule in Hoyt v. Hudson has frequently been followed in this and other courts. Eulrich v. Richter, 37 Wis. 226; Allen v. Chippewa Falls, 52 id. 434; O'Connor v. Ry., id. 530; Taylor v. Fickas, 64 Iud. 167; O'Brien v. St. Paul, 25 Minn. 334.

This last case, as well as the late case of McClure v. Ped Wing, 9 N. W. Rep. (Minn.) 767, also follows Pettigrew v. Evansville, 25 Wis. 223, and seems to be an exception to the general common law rule, and holds that surface water may be turned upon the land of another in such a way as to have the characteristics of a natural water-course, and then must to some extent be governed by the rules applicable to natural water-courses. But the case is not to be determined upon principles applicable to mere surface water as there is no allegation that the water was surface. It requires no authorities to show that the defendants had no right to build a dam and turn a flowing stream back upon and flood the lands of the plaintiff. (2) The defense of the statute of limitations is not available as to a continuing nuisance. It is well settled that every continuance of a nuisance is in law a new nuisance. Aug. Lim., § 300; Baldwin v. Calkins, 10 Wend. 178; Staple v. Spring, 10 Mass. 74; Hodges v. Hodges, 5 Neb. 205; Waggoner v. Jermaine, 3 Denio, 306; Spilman v. Railroad Co., 74 N. C. 675; Cobb v. Smith, 38 Wis. 36. Ramsdale v. Foote. Opinion by Cass oday, J. [Decided Oct. 10, 1882.]

one of the executors, afterward purchased from Burns. The court said: "As, then, Burns was, by the sale, invested with an estate recognized by our laws, there was nothing to hinder him from selling and conveying it to whomsoever he pleased. Nor is there any thing in the law or the transaction itself, to prohibit Isaac Silverthorn from becoming the purchaser. There is no suggestion of mala fides in the sale made by the executors to Burns, and it is clear that in the absence of fraud, one who has sold an estate as trustee may afterward fairly repurchase it for himself. Painter v. Henderson, 7 Barr. 48." A purchase by an executor under an execution against his testator is not void, but simply voidable at the election of the legatees, exercised within a reasonable time. In Fleming v. Foran, 12 Ga. 594, it is held that an executor cannot become the purchaser of land sold under execution against his testator, but that the sale will be set aside on the application of the legatees, provided such application be made in a reasonable time, otherwise the right will be considered waived or abandoned. See Spindler v. Atkinson, 3 Md. 410. Opinion by Day, J.

[Decided Oct. 18, 1882.]

Welsh v. McGrath.

IOWA SUPREME COURT ABSTRACT.

EVIDENCE-PAROL TO ALTER TERMS OF CONTRACT.— In an action upon a promissory note, defendant admitted that he executed the note with full knowledge of its terms, and every fact connected with it. Held, that he could not by parol contemporaneous testimony transform the note into a mere memorandum or receipt. An instrument which has the form of a promissory note, but was never executed or received as such, may be shown by parol to represent a different bargain from the one its terms import. But in a note in the usual form, and regularly delivered, parol evidence cannot properly be admitted to prove any special purpose directly repugnant to the terms of the note. Atherton v. Dearmond, 33 Iowa, 353; Atkinson v. Blair, 38 id. 156; Barhydt v. Bonney, 55 id. 17. See, also, Daniel, Neg. Inst., § 80. The case of Billings v. Billings, 10 Cush. 178, is directly in point, and holds that parol evidence is not admissible to show that a promissory note in the usual form was intended as a receipt. See, also, Underwood v. Simonds, 12 Metc. 275; Sylvester v. Staple, 44 Me. 496; Cooper v. Tappan, 4 Wis. 362 (369); Hightower v. Ivy, 2 Porter (Ala.) 308; Dupuy v. Gray, Minor, 357. Dickinson v. Harris. Opinion by Day J.

[Decided Sept. 21, 1882.]

JUDGMENT-ON VERDICT BY JURY WITH DISQUALIFIED MEMBERS VALID COLLATERALLY.-A judgment rendered by a jury, two of whose members were aliens and disqualified, held, not void. It may be conceded that it is the duty of the State to put legal jurors in the box to try a cause. A judgment rendered by a disqualified jury is erroneous, but not void. It might be reversed upon appeal, but it cannot be disregarded as nullity. Even the denial of jury trial in cases where that privilege is reserved by the Constitution, does not render the proceedings void, but only makes them liable to be reversed for the error. Foreman v. Hunter. Opinion by Day, J. [Decided Oct. 19, 1882.]

TRUST-EXECUTOR MAY PURCHASE TRUST PROPERTY FROM PURCHASER WITH TITLE.-(1) An executor who has sold property belonging to his trust estate, to one who may acquire a good title to it, may acquire such property from the purchaser. In Silverthorn v. McKerster, 12 Pa. St. 67, executors, under a power given to sell lands, sold to one Burns, and Silverthorn,

CORRESPONDENCE.

CONSTRUCTION OF WILLS BY SURROGATES.

Editor of the Albany Law Journal:

The surrogate of the county of New York enjoyed a special jurisdiction to the time of the adoption of the new Code. Section 2624, of the Code of Civil Procedure, confers general powers upon all surrogates, to determine questions involving the "validity, construction or effect" of dispositions of personal property by will, of a resident of the State, "executed within the State."

The note of reference in Throop's Code, says, the object in limiting the surrogate to wills "executed within the State," was to avoid conflicting jurisdictions, such as occurred in Despard v. Churchill, 53 N. Y. 192.

Notwithstanding the explanations of the codifier, our surrogate has held in a case of mine, that where a testatrix, resident in New York, signed her will in the presence of witnesses in the city of Philadelphia, and in due conformity to the laws of New York, he had no jurisdiction to pass upon a question involving the construction and legal effect of its provisions. In other words, that he had power to issue letters to executors, directing them to act under a will which created illegal powers. That the execution of a will was consummated upon the signature and witnessing thereof. That a resi dent of the State, having made a will outside its limits, although in pursuance of the laws, constituted himself an alien, and his testament must be denied the opera tion of the laws of his domicile.

The statute giving surrogates the power to interpret the legal effect of wills offered for probate, has been so beneficial in operation, that any thing restricting this power should be deplored. It has enabled many contestants to secure in the first instance, what would have been without it the result of a tedious proceeding for construction in some other court.

I believe it to be a forced construction of the statute, to hold such a will to be a foreign will, and as I can appeal on a question of practice to the LAW JOURNAL without giving a bond. What do you think of the case? Very respectfully,

NEW YORK, Dec. 19, 1882.

EDW. GEBHARD.