certain personal property required for the use of the company. The court held this to be a continuing authority, upon which one dealing with Rice had a right to rely until notified of its revocation. Persons who deal with an agent before notice of the recall of his powers are not affected by the recall. 2 Kent's Com. 644, note; Fellows v. Steamboat Co., 38 Conn. 197; Tier v. Sampson, 35 Vt. 179; Morgan v. Stell, 5 Binn. 305. It held also that a conferring of authority to dispose of the company's bonds upon one acting as president in the absence of Rice was not inconsistent with the authority given to Rice and did not revoke such authority. The judgment of the court below was affirmed. COURT OF APPEALS ABSTRACT. ADVERSE POSSESSION. Lands granted in violation of statute.—A statute provided that the city of New York might convey lands under water, to which it had title, but in such case the owners of the adjoining uplands should have a preemptive right to purchase. In 1837, the city conveyed to one not the owner of adjoining uplands, certain lands under water, and the grantee took possession of and improved the property. Held, that possession for twenty years would constitute to the grantee a bar by adverse possession against any claim of the owner of the upland acquiring title from the city by subsequent grant. Judgment below affirmed. Towle v. Remsen. Opinion by Miller, J. (Earl, J., dissented.) [Decided Sept. 18, 1877.] APPEAL. Findings of fact sustained by evidence not reviewable here, but refusals to find are reviewable.— Although this court will not, where a referee has found facts and his findings have been affirmed by the General Term,review such findings if there is any evidence to support them, when the referee has refused to find in relation to questions where there is evidence that might sustain a finding in favor of appellant, it will review the decision of the General Term affirming such refusal, and send the case back to the referee with directions to him to pass upon such questions and that the case be then re-heard at General Term. Judgment below reversed and case sent to referee for further findings. Potter v. Carpenter. Opinion by Rapallo, J. [Decided Oct. 9, 1877.] COSTS. In appeal from surrogate's decree: when payable out of estate. In an appeal, in a matter relating to the estate of a decedent, to the Court of Appeals, the court held with the appellants in part and reversed the decree of the surrogate and the judgment of the General Term, and in part with the respondents, sustaining one of the grounds affirmed by them and denied by the appellants, and ordered the "costs in this court to be paid out of the estate." Held, to authorize the allowance of costs to the respondents and that such allowance was, under the circumstances, equitable and proper. Lawrence v. Lindsay. Opinion by Andrews, J. [Decided Sept. 25, 1877. Reported below, 7 Hun, 641.] DEED. 1. Construction of deed: condition precedent and subsequent.- A deed, which conveyed in fee simple certain lands under water, provided that the grantees should pay certain quit-rents annually, and also that "if at any time hereafter it shall appear' " that the grantees at the date of the conveyance were not seized of an estate in fee simple, of the premises on the easterly side of high water and adjoining to the water lot conveyed, or should make default in the performance of their covenants, that "then and in such case" the grant should be void and the grantors might "forthwith thereupon be seized" of the same. Held, that the grantees took a present estate; that the provision last mentioned was a condition subsequent and not a condition precedent or a conditional limitation, and that re-entry was necessary in case of its breach, to divest the grantees of their estate. Judgment below affirmed. Towle v. Remsen. Opinion by Miller, J. (Earl, J., dissented.) 2. Right of re-entry does not pass by a conveyance of the land.-A right of re-entry for a breach of a condition subsequent does not pass by a conveyance of the land, and until there is a re-entry by the grantor or his heirs or the successors of the grantor for a breach of the condition, the estate is not forfeited, but remains unimpaired in the grantee. Ib. [Decided Sept. 18, 1877.] INDORSEMENT. Release of indorser by extending time of payment.— Plaintiffs, who held notes to secure a loan, agreed with the maker of the notes if he would furnish plaintiffs with his own drafts on them to the amount of the loan in order that the drafts might be sold in market, they would extend the time of the payment of the loan. The maker prepared and stamped the drafts, and furnished them to plaintiff, who sold the same, the maker bearing the expense of sale. Held, a sufficient agreement to extend time of payment of the notes to discharge the indorser, and that there was a valid consideration for such agreement. (Billington v. Wagoner, 33 N. Y. 31; Place v. McIlwain, 38 id. 96; Fellows v. Prentiss, 3 Den. 512; Myers v. Welles, 5 Hill, 463; Dorlon v. Christie, 39 Barb. 614; Elwood v. Diefendorf, 5 id. 398; Hulbert v. Carpenter, id. 520; Lowman v. Yates, 37 N. Y. 601.) Judgment below affirmed. Pomeroy v. Tanner. Opinion by Miller, J. [Decided Sept. 25, 1877.] JUDGMENT. 1. Purchaser of, without notice takes subject to the equities: neglect to record contracts affecting.-Plaintiff, to whom a mortgage was offered for sale, objected to the purchase on the ground that a judgment against the mortgagor held by P. was a prior lien. The owner of the mortgage thereupon procured a written agreement from P. that the lien of the judgment be postponed to that of the mortgage. This agreement was not recorded. P. then sold the judgment to defendant, who knew nothing of the agreement, and execution was moved on the judgment, aud the premises were sold to defendant thereunder. Held, that the agreement of P. postponed the lien of the judgment to that of the mortgage, even though the judgment was in the hands of a bona fide purchaser for value without notice, and the agreement was not recorded, and that the sale under execution did not affect the priority of the lien. Judgment below affirmed in part, and reversed in part. Frost v. Yonkers Savings Bank. Opinion by Earl, J. 3. Mortgage: redemption by junior mortgagee.-Plaintiff held a fourth mortgage and defendant a first mortgage upon the premises mentioned upon which it procured a judgment of foreclosure. Held, that plaintiff was entitled to redeem, and that without satisfying the judgment upon which the execution sale was made. Ib. 3. Effect of tender by holder of junior incumbrance.When the holder of a junior incumbrance tenders the amount of a prior incumbrance and demands a transfer, it does not release the lien of the prior incumbrance upon the land, but merely puts such holder in a position to compel in equity the transfer demanded. Ib. [Decided Sept. 25, 1877. Reported below, 8 Hun, 26.] MARRIED WOMAN. Contract by: what does not amount to.- Testatrix, a married woman, not carrying on business, assured plaintiff, who had performed certain services in her family, that she (plaintiff) should be rewarded for what she had done, and also promised to provide for plaintiff in her will. A legacy of $1,000 was given to plaintiff by the will, which was stated therein to be in full of plaintiff's claim for past services. The real and personal estate of testator was insufficient to pay her debts. Held, not enough to raise an agreement on the part of testatrix to charge her estate with the payment of the value of plaintiff's services within the rule laid down in Yale v. Dederer, 22 N. Y. 456, which requires that the agreement to charge the separate estate be included in the original contract out of which the indebtedness is claimed to arise. (Manhattan B. Co. v. Thompson, 58 N. Y. 82; Maxon v. Scott, 55 id. 247.) Judgment below affirmed. Eisenlord v. Snyder. Opinion by Rapallo, J. [Decided Oct. 2, 1877.] MORTGAGE. Relations of purchaser of land assuming payment of, and mortgagor: land primary fund for payment: foreclosure. The plaintiff, who owned land subject to a mortgage, conveyed it to defendant, who assumed payment of the mortgage as part of the consideration for the conveyance. Defendant conveyed the land to a third party, who likewise assumed the payment of the mortgage. Held, that as between plaintiff and defendant, defendant was the principal debtor and plaintiff her surety. But plaintiff had the right to require that the land be first applied to the payment of the mortgage as being the primary fund therefor, and he would be liable only for the deficiency. He was not, in order to enforce his liability against defendant, bound to pay up the mortgage, but might allow a foreclosure, and the costs of foreclosure could be taken out of the proceeds of the land, and defendant would be liable for the deficiency. Judgment below affirmed. Comstock v. Drohan. Opinion by Rapallo, J. [Decided Oct. 2, 1877. Reported below, 8 Hun, 373.] NEW YORK CITY. Assessment for paving street previously paved: vacation of evidence. In a proceeding to vacate an assessment for repaving streets in New York city, under the provisions of Laws of 1872, chap. 580, § 7, the relief can be granted only in case that an assessment for paving the same street has been once actually paid. And this fact must appear affirmatively, and cannot be inferred from a presumption of payment from the lapse of time. Accordingly where it was shown that an assessment for paving was laid in 1831, held, that actual payment of the assessment must also be shown. (Lawrence v. Ball, 14 N. Y. 477; Morey v. F. L. & T. Co., id. 302; In re Scovill, 9 Hun, 234.) Order below affirmed. In matter of petition of Willett. Opinion by Earl, J. [Decided Sept. 25, 1877.] SURETYSHIP. Rights of surety paying debt to subrogation: trust: keeping security for debt alive.-B., to secure a certain liability to T., executed to him a note and mortgage. His wife also transferred conditionally to T. a contract as security for her husband's indebtedness to him. T. and the husband and wife afterward agreed that if the wife would transfer to T. all her rights under the contract T. would assign to plaintiff the note and mortgage. This arrangement was carried out, plaintiff, in completing it, advancing money to discharge a lien upon the wife's rights under the contract assigned to T. Held, that the note and mortgage were not paid, but that plaintiff acquired a good title thereto and could enforce the same. Order below reversed. Hubbell v. Blakeslee. Opinion by Rapallo, J. [Decided Oct. 9, 1877. Reported below, 8 Hun, 603.] WILL. 1. Undue influence: what constitutes.-In order to set aside a will upon the ground of undue influence on the part of beneficiaries, it must be shown that the influence amounts to moral coercion which restrained independent action. Children's Aid Society v. Loveredge. Opinion by Miller, J. 2. Testamentary capacity: what does not indicate want of. The sensitiveness of an aged invalid which distorts the best intended acts of old friends and turns with confidence to new objects for relief, held, not to show such testamentary incapacity as to render a will invalid or such imbecility as to raise the presumption of undue influence. Ib. 3. Change in provisions of prior will : burden of proof. -Where a change is made in a will of a sick person which is apparently contrary to a previous fixed determined purpose, the court should scrutinize and ascertain if the change was voluntary and intelligent, and it is upon those proposing the will to show that it was so. Ib. 4. Family meeting: succeeded by will changing prior will materially.-Where a will was executed after a meeting of certain relatives varying the provisions of a former will and benefiting those who were present, there being no other near relatives to call or consult, held, not a just ground of complaint. Ib. 5. Will drawn up by those having interest therein.— The fact that one interested in a will drew up the same, held, not sufficient reason to exclude the will, it appearing by other disinterested testimony that the will was in accordance with testator's expressed desires. Ib. 6. Want of memory not testamentary incapacity.— A want of memory and other like infirmities incident to old age, held, not to constitute testamentary incapacity. Ib. 7. Irregular execution not alone evidence of fraud.A hasty and irregular manner of executing a will, held, not alone evidence of fraud or undue influence. Ib. [Decided Sept. 18, 1877.] WITNESS. 1. Executor competent at the probate of will.-Under the provisions of the Code of Procedure, sections 398 and 399, the provisions of the statute (2 R. S. 65, § 60) are so far modified as to render an executor competent at the probate of a will. Judgment below affirmed. Children's Aid Society v. Loveridge. Opinion by Miller, J. TAXATION.-DUE PROCESS OF LAW. SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1877. MCMILLEN, plaintiff in error, v. ANDERSON. 1. The constitutional provision that no State shall deprive any person of life, liberty or property without due process of law, does not require that persons taxed by the law of the State shall be present or have an opportunity to be present when the tax is assessed against them. 2. Nor does it require that taxes shall be collected by a judicial proceeding. 3. A statute which gives the tax payer a right to enjoin its collection, and have the validity of the tax decided by a court of justice, is due process of law, notwithstanding it requires the party to give security in advance, as in other injunction cases. אן error to the Supreme Court of the State of Louisiana. Mr. Justice MILLER delivered the opinion of the court. The defendant in error, who was tax collector of the State of Louisiana for the parish of Carroll, seized property of the plaintiff in error, and was about to sell it for the payment of his license tax, as a person engaged in business liable to a tax of $100. In accordance with the laws of Louisiana, plaintiff in error brought an action in the proper court of the State for the trespass, and in the same action obtained a temporary injunction against the sale of the property seized. Defendant pleaded that the seizure was for taxes due, and was what his duty as collector required him to do. On a full hearing, the court sustained the defense, and gave a judgment under the statute against plaintiff and his sureties on the bond for double the amount of the tax and for costs. Plaintiff thereupon took an appeal to the Supreme Court of Louisiana, and in his petition for appeal alleged that the law of Louisiana under which the proceedings of defendant were had was void, because in conflict with the constitutions of Louisiana and of the United States, and, as he now argues, is specifically opposed to the provision of the 14th amendment of the latter, which declares that no State shall deprive any person of life, liberty or property without due process of law. The judgment of the Supreme Court of Louisiana, to which the present writ of error is directed, affirming that of the inferior court, must be taken as conclusive on all the questions mooted in the record except this one. It must, therefore, be conceded that plaintiff was liable to the tax, that if the law which authorized the collector to seize the property of plaintiff was valid, his proceedings under it were regular, and that the judgment of the court was sustained by the facts in the case. Looking at the Louisiana statute here assailed - the act of March 14, 1873- we feel bound to say that if it is void on the ground assumed, the revenue laws of nearly all the States will be found void for the same reason. The mode of assessing tax in the States, by the Federal government, and by all governments, is necessarily summary, that it may be speedy and effectual. By summary is not meant arbitrary, or unequal, or illegal. It must, under our constitution, be lawfully done. But that does not mean, nor does the phrase "due process of law," mean by a judicial proceeding. The nation from whom we inherit the phrase "due process of law" has never relied upon the courts of justice for the collection of her taxes, though she passed through a successful revolution in resistance of unlawful taxation. We need not here go into the literature of that constitutional provision, because in any view that can be taken of it the statute under consideration does not violate it. It enacts that when any person shall fail or refuse to pay his license tax the collector shall give ten days' written or printed notice to the delinquent requiring its payment, and the manner of giving this notice is fully prescribed. If at the expiration of this time the license "be not fully paid the tax-collector may, without judicial formality, proceed to seize and sell, after ten days' advertisement, the property" of the delinquent, or so much as may be necessary to pay the tax and costs. Another statute declares who is liable to this tax, and fixes the amount of it. The statute here complained of relates only to the manner of its collection. Here is a notice that the party is assessed, by the proper officer, for a given sum as a tax of a certain kind, and ten days' time given him to pay it. Is not this a legal mode of proceeding? It seems to be supposed that it is essential to the validity of this tax that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed. But this is not and never has been considered necessary to the validity of a tax. And the fact that most of the States now have boards of revisers of tax assessments does not prove that taxes levied without them are void. Nor is the person charged with such a tax without legal remedy by the laws of Louisiana. It is probable that in that State, as in others, if compelled to pay the tax by a levy upon his property, he can sue the proper party and recover back the money as paid under duress, if the tax was illegal. But however that may be, it is quite certain that he can, if he is wrongfully taxed, stay the proceeding for its collection by process of injunction. See Fouqua's Code of Practice of Louisiana, articles 296 to 309 inclusive. The act of 1874 recognizes this right to an injunction, and regulates the proceedings when issued to stay the collection of taxes. It declares that they shall be treated by the courts as preferred cases, and imposes a double tax upon a dissolution of the injunction. But it is said that this is not due course of law, because the judge granting the injunction is required to take security of the applicant, and it is said that no remedial process can be within the meaning of the constitution which requires such a bond as a condition precedent to its issue. It can hardly be necessary to answer an argument which excludes from the definition of due process of law all that numerous class of remedies in which, by the rules of the court or by legislative provisions, a party invoking the powers of a court of justice is required to give that security which is necessary to prevent its process from being used to work gross injustice to another. The judgment of the Supreme Court of Louisiana is affirmed. BENCH AND BAR. Jean Baptiste Duvergier, a distinguished French jurist, died last week in France. Ezra Hall, a prominent member of the Hart ford, Connecticut, Bar, died in that city on the 3d ult. He was aged forty-one years. William H. Draper, C. B., Chief Justice of the Court of Error and Appeal, of Ontario, died on the 2d inst., after a lingering illness, at his residence at Gorseville, Ontario, in the seventy-seventh year of his age. He was called to the Bar in 1828, elected to Parliament in 1841 and elevated to the Bench in 1847. Isaac M. Sturges, a distinguished member of the Fairfield county, Connecticut, Bar, dropped dead on the 31st ult., at his residence in Wilton, in that State. During more than forty years deceased had practiced law successfully, and he was held in high esteem by the profession as a man of rare judgment and tact. His age was about seventy years. Charles Sumner's first case was a defense of one Waylen, indicted in the Municipal Court under a statute, for sending a challenge to one Alessandro Gherardi. In his defense he was associated with George S. Hillard, who afterward became his partner, and under the firm name of Hillard & Sumner, occupied two rooms on the second floor of the Brooks Building, the site of the present Sears Building. Sumner occupied the room next to the hall, which he kept as long as he remained at the Bar. In the early part of 1837, a strong friendship was formed between Cornelius C. Fenton, Henry W. Longfellow, George S. Hillard, Henry R. Cleveland and Sumner. They called themselves the "Five of Clubs." They were near to each other in age- Longfellow being thirty years, Fenton twenty-nine, Hillard and Cleveland twenty-eight and Sumner twenty-six. The late Charles Sumner in a letter to a classmate, written while he was attending the Harvard Law School as a student, writes as follows: "Late to bed and early to rise, and full employment while up, is what I am trying to bind myself to. The labor ipse voluptas I am coveting. I had rather be a toad and live upon a dungeon's vapor than one of those lumps of flesh that are christened lawyers, and who know only how to wring from quibbles and obscurities that justice which else they never could reach; who have no idea of law beyond its letter, nor of literature beyond their term reports and statutes. If I am a lawyer, wish to be one who can dwell upon the vast heaps of law matter, as the temple of which the majesty of right has taken its abode: who will aim, beyond the mere letter, at the spirit-the broad spirit of the law and who will bring to his aid a liberal and cultivated mind. Is not this an honest ambition? If not, reprove me for it. A lawyer is one of the best or worst of men, according as he shapes his course. He may breed strife, and he may settle dissensions of years. - Oliver P. Morton, who died at Indianapolis, Ind., on the 1st inst., was born in Wayne county, Indiana, on the 4th of August, 1823. The family name was Throckmorton, but Mr. Morton's father treated the first syllable as a separate word, and the surname thus became Morton. Mr. Morton received a fair education, spending two years at Miami University, Oxford, Ohio. He was admitted to the bar in 1847. He commenced practice in his native State, but was not at first successful. At the end of ten years, however, he had a very lucrative business. He was chosen circuit judge in 1852, but did not long continue on the bench. In 1860 he was elected Lieutenant-Governor of Indiana, and shortly after assuming the office succeeded to the position of Governor, the Governor elect having accepted the office of United States Senator. He was elected Governor in 1864. Subsequently he was twice chosen to the United States Senate, and held the office of Senator at the time of his death. He died of paralysis, which had affected him for some years and was brought on by over work. He was a very able lawyer, but has during the later years of his life been better known as a politician. RECENT AMERICAN DECISIONS. SUPREME COURT OF WISCONSIN.* RAILROAD. 1. Duty of company to fence: damage to cattle from defective fence: contributory negligence.-Whether or not contributory negligence would be a defense to an action for an injury arising from the failure of a railroad company to construct a fence as required by the statute, such negligence may defeat an action for an injury arising from the failure of the company to maintain in repair such a fence, once built. Jones v. S. & F. du L. R. R. Co., decided herewith. Lawrence v. M., L. S. & W. Railway Co. 2. Burden of proof in actions for injury from failure to fence.-Section 1, chapter 268, of 1860, and section 30, chapter 119, of 1872, make railroad companies responsible for damages occasioned by failure to fence their tracks, as there required; and in an action under those statutes, the injury complained of must be affirmatively shown to have been caused by the want of a proper railroad fence, the evidence connecting the injury with the want of a fence at some point on the road (whether near to or distant from the plaintiff's premises), and showing that the one was the consequence of the other. Ib. Decided Sept. 11, 1877. RIPARIAN RIGHTS. 1. Owner of both banks of a stream owns stream.Under the uniform decisions of this court, one who owns both banks of a stream, navigable or unnavigable, has title to the bed of the stream. (A suggestion by Dixon, C. J., in Wis. R. I. Co. v. Lyons, 30 Wis. 61, and in Wright v. Day, 33 id. 260, as to the effect of certain federal decisions on the subject, criticised.) Olson v. Merrill. 2. Easement of public to float logs: streams that may float logs periodically, navigable. It is the settled law of this State, that streams of sufficient capacity to float logs to market are navigable; and it is not essential to the public easement that this capacity be continuous throughout the year, but it is sufficient that the stream have periods of navigable capacity ordinarily recurring from year to year, and continuing long enough to make it useful as a highway. Ib. 3. Trespass by the public: excuses for.-If the capacity of a stream is such that it can be used as a highway without any trespass upon the banks, the right of the public therein is not affected by the fact that such trespass is convenient and habitual. The right of A to float his logs down a navigable stream, unimpeded by the dam of B, is not affected by the lawfulness or unlawfulness of A's dam on the same stream. Ib. 4. Boundary lines in patents to stream.- Plaintiff became owner, by divers mesne conveyances, of certain lots of land patented by the United States, and in all the deeds the lots are designated by their numbers as specified in the government survey and plat. It appears from the field notes of such survey (which are the foundation of the plat), that the lines of the lots extended to and from the pond. Held, that the lots, as patented, extended to the pond, although the then existing line of the pond, and the meander line as run and marked, may have differed. Ib. 5. Claim to land by reliction.—One who claims land by * From O. M. Conover, Esq., State Reporter. To appear in 42 Wisconsin Reports. reliction, should show the several stages of the process through longer or shorter periods, as determined by the width of the strip uncovered or by comparison with the bank or other known and fixed objects, 80 that the court may have definite and satisfactory data upon which to determine the character of the reliction; and it was error in this case to determine such a claim in favor of the claimant upon mere proof that persons watching the process could not see the water recede. Ib. 6. Sudden disappearance of water gives no claim to riparian owner.-The pond here in question, when originally surveyed, had an area of 160 acres, and a depth of four or five feet. By the spring of 1874, a strip of the original bed, several rods in width, had become bare, and the depth of the water remaining was a little more than one foot. In the summer following, the water entirely disappeared. A little water gathered there in the spring of 1875, but soon disappeared; and the pond seems to have permanently dried up. Upon evidence of these facts, the court intimates an opinion that as to that portion of the lake bed, which was laid bare after the first-mentioned date, the water disappeared too suddenly and sensibly to vest the title in the riparian owner; but it was not necessary to decide that question on this appeal. Ib. Decided August 28, 1877. 7. Right of owner of meandering stream to accretions: riparian right subject to right of navigation: boundaries.-The owner of land bounded by any meandering lake or pond in this State takes, as such, no fee in the bed or soil under the water; but has a right to accretions formed by slow and imperceptible degrees upon or against his land, and to those portions of the bed of the lake or pond adjoining his land, which may be uncovered in the same manner by reliction of the water. The riparian rights above defined are subject to the paramount right of the public to use navigable lakes or ponds for the purposes of commerce or navigation. If the meandered line of a lake or pond and the actual water line differ, the latter is the true line of a lot bounded in terms by the meandered line. Boorman v. Sunnuchs. Decided August 28, 1877. SUNDAY. Contract by railroad to be performed on: general duty as carrier.-The complaint charges, in substance, that the plaintiff, with about eighty other residents of M., desired to attend certain religious ceremonies at W. on a certain Sunday; that through their agent they individually contracted with defendant to convey them from M. to W. and back on said Sunday, by a special train, which was to leave W. on its return to M. at 5.30 P. M.; that the party was carried to W., but defendant did not have cars ready to bring them back at the appointed time, but willfully, fraudulently, negligently and carelessly failed and refused to furnish any means of bringing them back, by reason whereof plaintiff was greatly injured in bodily health, suffered great pain and anxiety of mind, lost much time from business, and was subjected to indignities and insults from the employees of the company. A second count, similar to the first in other respects, alleged that the agent of plaintiff and others agreed on their behalf with defendant to pay a certain sum for said special train for the party. Held, that the action is upon special contract and not for a tort. No action could be sustained against the defendant for a breach of its general duty as carrier, upon the facts alleged, defendant being under no obligation as carrier to carry any person on its road on Sunday. Walsh v. C. M. & St. P. Railway Co. Decided June 2, 1877. WILL. Execution of.- Under our statute, which requires that a will (not nuncupative), to be valid, "shall be attested and subscribed in the presence of the testator, by two or more competent witnesses," no subscription to a will by a witness is valid unless made where the testator (if he so desires, and is not blind) can see the witness subscribe; and it is not sufficient that the witness, after signing as such in an adjoining room outside of the testator's range of vision, brings such subscription to the attention of the testator, who assents to and approves the act. Downie's Will. Decided June 2, 1877. SUPREME COURT OF PENNSYLVANIA.* BANKRUPTCY. 1. Acts not in fraud of bankrupt law: what does not amount to preference.- Kemmerer obtained a judgment against Knerr, who afterward purchased land; within two years the judgment was revived by amicable scire facias and confession; within four months of the revival Knerr was adjudged a bankrupt. Held, that the revival was not in fraud of the bankrupt laws. The revival was not out of the usual course of business; it was not Kemmerer's duty to inquire as to Knerr's insolvency. It would have been no infraction of the bankrupt law had Kemmerer, kuowing Knerr's insolvency, issued execution on his original judgment and thus secured a lien by the levy on the after-acquired property of Kuerr. Knerr's confession of judgment of revival was not a preference voluntarily given by him, within the purview of the bankrupt law. Kemmerer v. Tool, assignee. 2. Preference not given by passive acquiescence.— When the act of a debtor does not hasten the remedy or give a preference or any other advantage which the creditor could not at once have secured, it is not a fraud on the other creditors. A mere passive non-resistance to a regular judicial proceeding will not show a preference to a creditor or a purpose to defeat or delay the bankrupt act, although the judgment creditor may know the insolvency of the debtor. A debtor consenting to an amicable action or revival, which gives the creditor no advantage which he could not at once have secured by adversary process, does nothing beyond mere passive non-resistance. Ib. BIGAMY. What constitutes: cohabitation not necessary.—At common law bigamy occurs and is complete when the second marriage is accomplished. Bigamy is where one marries a second wife or husband, the first being living. On an indictment for bigamy it is not necessary to prove cohabitation; the crime is complete although there be immediate separation, without cohabitation at all. Gise v. Commonwealth. BURIAL. Right of cemetery association to make rules as to: rights of lot owners.-An incorporated cemetery company was authorized to make by-laws, etc., to sell lots in fee simple or otherwise for sepulture alone, under such rules as the managers might ordain for the burial of the dead, etc. The by-laws provided that there should be no burial without a written permit from the * Appearing in 31 P. F. Smith's (81 Penn. St.) Reports. |