operation of law into her possession, charged with the same trust to which it was subject in the hands of her husband. Upon her appointment as administratrix of his estate she, as such, inventoried and returned the property as property of the estate of her deceased husband. It was, therefore, not only proper but necessary to make her a defendant, in her representative capacity, in any proceeding brought to determine the question of trust. If, as she claims, there was no trust, and the property was properly returned as a part of decedent's estate, then, inasmuch as his entire estate, as seems to be the case, was community property, of which she in her personal capacity is the owner of one-half, subject only to administration, she would seem to have such a personal interest in the result of the action as to make it at least proper, if not necessary, to make her a defendant in her personal as well as in her representative capacity. We think she was properly made defendant in both capacities.

7. In the statement of the grounds of motion for nonsuit, it was conceded that a trust can be created by operation of law. We have already cited both statute law, and judicial decisions, showing that such a trust, as that declared upon in this case, may be created otherwise than by deed or writing, and proved by parol, and do not need to consider the question further. In the case made we do not think it material, but it may become so on a new trial, and, for that reason, we notice one other point made by appellant. We think the court erred in ruling out the evidence offered on the question as to whether or not other members of the Caraffa family came to this country after the death of Domenico. On the question of laches, and the statute of limitations, it might become important to show, as was proposed to be done, that Giovanni was the only person in this country, (other than public officers who had no knowledge of the facts,) entitled to administer upon the estate of his brother, the cestui que trust. Julgment and order reversed, and the cause remanded for new trial.

I concur: PATERSON, J.

BEATTY, C. J. I concur in the judgment. In view of what the evidence tended to prove, a nonsuit was improper.

(15 Colo. 125)

PLEYTE V. PLEYTE.

(Supreme Court of Colorado. Nov. 7, 1890.) ALIMONY ON APPEAL.

When the wife is involved in a suit against her husband for divorce, either as plaintiff or defendant, she should be allowed alimony and suit money out of the husband's estate or earnings, so as to place her upon an equality with him in the litigation until the same is finally determined; and these allowances may be extended to the pendency of the cause on appeal or error, whenever it is made to appear to the appellate court that the review is prosecuted in good faith, and that error has probably been committed to her prejudice. Such relief, however, will not be granted, except upon a showing that the wife is destitute, in whole or in part, of the means nec

essary to maintain herself and carry on the litigation and that the husband is able to supply the

same.

(Syllabus by the Court.)

Error to district court, Arapahoe county.

On motion to dismiss petition for alimony and suit money.

Sullivan & May and Coe & Freeman, for plaintiff in error. Patterson & Thomas, for defendant in error.

ELLIOTT, J. The plaintiff in error, having been defeated in her action for divorce in the court below, brings the record to this court by writ of error, and asks, upon petition and affiavits, that defendant in error be required to provide her with means to prosecute her suit, and for alimony while the same is pending in this court. Defendant's counsel deny the jurisdiction of this court to grant such relief. The practice in appellate courts in respect to applications of this kind is by no means uniform. By section 1098, Gen. St., the jurisdiction to grant alimony pendente lite is expressly conferred upon district courts, but counsel fees and suit money are not specified; nevertheless such allowances have also been sustained by this court. Hence, the jurisdiction does not depend upon statute. Daniels v. Daniels, 9 Colo. 133, 10 Pac. Rep. 657. In support of its appellate jurisdiction, and for the purpose of making such jurisdiction effective, this court has expressed liberal views. In Wheeler v. Irrigation Co., 9 Colo. 250, 11 Pac. Rep. 103, it is said: "One of the inherent powers of an appellate court is the right to make use of all writs known to the common law, and, if necessary, to invent new writs or proceedings, in order to suitably exercise the jurisdiction conferred. In Friend v. Friend, 65 Wis. 413, 27 N. W. Rep. 34, the language of Chief Justice DIXON is approved as follows: "The granting of temporary alimony and suit money, to enable a wife to prosecute her appeal, is not a matter of course in this court, and, when application is made, we think we must look into the record so far as to determine whether the appeal is obviously without merits, and, if it is, then the motion will be denied. Injury and a meritorious cause of action must appear. The reasonable rule would seem to be that when the wife is involved in a suit against her husband for divorce, either as plaintiff or defendant, she should be allowed alimony and suit money out of the husband's estate or earnings, so as to place her upon an equality with him in the litigation until the same is finally determined; and these allowances may be extended to the pendency of the cause on appeal or error, whenever it is made to appear to the appellate court that the review is prosecuted in good faith, and that error has probably been committed to her prejudice. Such relief, however, will not be granted, except upon a showing that the wife is destitute, in whole or in part, of the means necessary to maintain herself and carry on the litigation, and that the husband is able to supply the same. This doctrine is familiar, and it is unnecessary

to enter into a consideration of the reasons upon which it is founded. 2 Bish. Mar. & Div. (6th Ed.) § 393; Daniels v. Daniels, supra; Goldsmith v. Goldsmith, 6 Mich. 285; Lake v. Lake, 16 Nev. 364, affirmed, 17 Nev. 230. For the purposes of the relief sought by the petition before us, there is no substantial distinction between a case brought here on appeal and one brought by writ of error under such circumstances as would justify a supersedeas. We are not disposed to encourage applications of this kind. The application must show merits and probable legal injury, or it will be denied. The motion to dismiss petition for alimony, etc., is denied. But defendant in error will be allowed to answer and file counter-affidavits before the merits of the application are considered. Motion denied.

(15 Colo. 416)

SQUIRES V. KING.

(Supreme Court of Colorado. Sept. 12, 1890.) BROKERS-COMMISSIONS-BREACH OF CONTRACT. Defendant wrote to plaintiff offering him a certain commission for securing him a loan at a named rate. Plaintiff secured the money, but when defendant was informed that it was ready for him he declined to receive it, giving as his reasons that the rate of interest was not satisfactory; that he could not invest the money at once; and that he had concluded that he did not want it. Held, that a right of action thereupon accrued to plaintiff to recover the stipulated commission.

Commissioners' decision. Appeal from Arapahoe county court.

C. A. Allen, Benedict & Phelps, and C. A. Lott, for appellant. S. H. Ballard and C. P. Butler, for appellee.

RICHMOND, C. On July 6, 1886, appellant, who was defendant below, executed and delivered to appellee the following agreement: "Villa Grove, July 6, 1886. John C. King, Colorado-Dear Sir: If you will procure a loan for me of $6,500 at 8 per cent. interest, interest payable semi-annually, both interest and principal payable in Boston in gold coin of present standard weight and fineness, for five years, on my 680 acres and improvements, I agree to furnish a clear title to the same and all mortgage papers free of expense, and pay you a commission of 10 per cent. for securing the loan. [Signed] WM. B. SQUIRES.” In pursuance of this agreement, appellee negotiated the loan, and had the sum mentioned forwarded to a Denver lawyer for the purpose of complying with the contract. The attorney, acting for the lender, communicated by letter to appellant the fact that he had received the money. this letter, appellant responded as follows: "Villa Grove, July 17, 1886. E. O. Wolcott, Esq.-Dear Sir: Yours of the 9th is received, and contents noted. I have concluded that I do not want any money at the rate Mr. King wants to charge me. I have other reasons for not wanting it now. I could not invest it for the next sixty days, and, taking all in all, I have concluded I do not want it. Please send that decree to my address, Villa Grove, Colorado, and oblige WM. B. SQUIRES. It is needless to consider the possible effect of inquiries made by the attorney concern

To

ing the title and certain water-rights, for the letter of July 17th rendered appellee's right of action complete. This letter was written but 11 days subsequent to the date of the contract. It contains a positive refusal to comply therewith, and such refusal is predicated upon circumstances over which appellee had and could have no control whatever, viz.: First, a change of mind by appellant as to the rate of interest he was willing to pay; second, a discovery that he could not invest the sum borrowed within sixty days from the time of its receipt; and third, a resolve on his part that, "taking all in all," he did not want the money. The judgment of the court below in favor of appellee should therefore be affirmed.

REED and BISSELL, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment is affirmed.

(19 Or. 535)

MCQUAID V. PORTLAND & V. R. Co. (Supreme Court of Oregon. Nov. 10, 1890.) REPORTER'S SHORT-HAND NOTES-BILL OF EXCEP

TIONS-REVIEW.

1. The short-hand notes of the circuit court reporter, appointed under the act approved February 25, 1889, (Sess. Acts 1889, pp. 142-144,) when transcribed, certified, and filed with the clerk, as in the act provided, do not take the place of a bill of exceptions, nor can the supreme court review a question of fact in an action at law on said notes.

2. The ruling of the trial court in refusing a new trial presents no question for review on appeal.

(Syllabus by the Court.)

Appeal from circuit court, Multnomah county; E. D. SHATTUCK, Judge.

On

There is no bill of exception in this record, and yet the only question which the appellant seeks to make on the appeal arises out of the effect of certain statements made by the plaintiff when on the stand as a witness in his own behalf. his cross-examination, defendant's counsel asked him to estimate the amount of his damages, and the reporter certifies that he answered $1,000. The jury gave a verdict for $1,495. The defendant in due time moved to set it aside, and to grant a new trial, which was refused, and this is the only assignment of error. C. B. Bellinger, for appellant. Doud, for respondent.

E. O.

STRAHAN, C. J., (after stating the facts as above.) There being no bill of exceptions in this case, the appellant relies upon the certificate of the official reporter. On February 25, 1889, an act entitled “An act authorizing the appointment of official reporters in the circuit courts, and prescribing their duties and fixing their compensation," was approved. Sess. Acts 1889, pp. 142-144. Under section 2 of that act, the reporter, when a full report is ordered, "shall cause accurate short-hand notes of the oral testimony or other proceedings to be taken." Section 3 provides for the reporter's compensation. Section 4, among other things, makes it the duty of the re

porter when short-hand notes have been taken in any case, as in the act provided, if the court or either party requests a transcript of the notes, to cause a full, accurate, type-written transcript of the testimony, or other proceedings, which should be certified and filed with the clerk, for the use of the court or parties. Section 5 provides, in effect, that said report and proceedings, when transcribed and certified as correct, may thereafter be read in evidence as the deposition of a witness in the cases mentioned in section 829, Hill's Code.

These are the main features of the act on the subject presented by appellant's counsel, and we fail to discover anything in it that gives the reporter's notes the effect, or makes them perform the office, of a bill of exceptions. No doubt, the object of the act was to enable the parties to put in available form the proceedings at the trial, to enable them to make an accurate bill of exceptions, but it was never designed to thus make a substitute for that part of the record. If said notes could be so used, the transcript before us would be unavailable for another reason. It only purports to contain the plaintiff's cross-examination,-not all of his evidence, and it does not purport to contain all the evidence given upon the trial. We may add that, if the question which counsel for appellant seeks to make were before us, we could not, in the absence of controlling authority, give to the evidence of a party when on the stand as a witness the effect of an estoppel by record. He occupies, in a civil case, the same situation of any witness, affected by like motives and interest. The effect of his evidence and his credibility are for the jury, and it would be going too far for the court to declare, as a matter of law, that he is bound or estopped by every statement he makes. The verdict of the jury may have been excessive. If so, the court below had power to correct it by granting a new trial. That discretion is vested by law in the trial court, with which this court has never interfered. It presents no question for this court to review on this appeal. We find no error in the record, and the judgment appealed from must be aflirmed. (19 Or. 539)

MILLER V. BAILEY. (Supreme Court of Oregon. Nov. 3, 1890.) DISSOLUTION OF PARTNERSHIP-AGREEMENT TO PAY DEBTS-COMPOSITION WITH CREDITORS.

1. If, upon the dissolution of a partnership, it is agreed that the partner continuing the business shall pay the debts, such agreement is broken by mere non-payment, and the outgoing partner can maintain a suit for the breach, without having paid anything himself. And, if a clause be added to save harmless, the former is not merged in the latter, and the obligee can rest upon either.

2. When, by the terms of a dissolution agreement between B. & M., the latter retired from the firm, and B. was to pay the outstanding debts and liabilities of the firm, and made a composition agreement with the firm's creditors, whereby he was to pay 50 per cent. of the firm's debts, upon payment of which B. was to be discharged, but not M., and B. complied with the composition agreement, and thereupon went to the principal creditor of the firm, and asked him to sue B. &

M., and collect his money from M., and, upon the action being brought, he made no defense, and did not acquaint M. of the composition agreement, or its terms, nor plead it himself as a defense, but made default, and M. paid a large sum of the partnership debts of B. & M., held that, when sued for failing to comply with the dissolution agreement, B. was estopped from relying upon the supposed release created by the coinposition agreement, and the court declined to decide whether such release existed or not.

(Syllabus by the Court.)

Appeal from district court, Multnomah county; E. D. SHATTUCK, Judge.

The substance of the complaint is that, on September 7, 1885, plaintiff and defendant were partners in a general retail grocery business in Portland, Or., under the firm name of Bailey & Miller; that on that day they were indebted to divers persons, and, among others, to Wadhams & Elliott in about the sum of $1,500, about onehalf of which was secured by note, and remainder an open account; that on that day plaintiff and defendant dissolved said partnership, and, by an agreement then entered into for a valuable consideration, the defendant, Bailey, agreed to pay and satisfy in full all debts then existing against said firm of Bailey & Miller, and all sums of money which were due or owing by said partnership, (except a debt due Folger & Co.,) including said $1,500 due Wadhams & Elliott. And said defendant further agreed that he would at all times save and keep harmless and indemnify plaintiff against all and every person whatsoever to which said Bailey & Miller, or either of them, were indebted in relation to said partnership, and of and from all charges, actions, costs, damages, executions, judgments, and demands whatso ever, that might at any time arise against said plaintiff, by reason of any matter or thing respecting or relating to said partnership, including all or any claims that might arise against the plaintiff, or for which he might become liable, on account of said debt due the said firm of Wadhams & Elliott. It is then alleged that defendant failed and neglected to keep said agreement as to said debt due Wadhams & Elliott, or to pay same, and that, on August 19, 1889, William Wadhams, to whom Wadhams & Elliott had assigned their claim against Bailey & Miller, commenced an action against Bailey & Miller for $1,162.90, then due on the promissory notes held by them against Bailey & Miller, and threatened to commence an action to recover the amount due on account; that defendant failed to pay said claims, or to secure the withdrawal of said action, and that for his own protection the plaintiff was compelled to pay, and did pay, to said Wadhams, on the 24th day of September, 1889, the sum of $1,006.47; and that defendant fails and refuses to pay same, etc. The defendant's answer admits the agreement made on the dissolution of the firm of Bailey & Miller, and denies substantially all of the other material allegations of the complaint. The answer then alleges that, on the 24th of November, 1885, defendant fully satisfied, paid, and discharged all claims and debts owing, due, or to become due, from or on account of the firm of Bailey & Miller to the firm of

Wadhams & Elliott, and to other creditors of the said Bailey & Miller, mentioned in a certain writing as follows:

"This agreement, made and entered into this 24th day of November, A. D. 1885, between us, the creditors of J. W. Bailey, witnesseth: That whereas, the said J. W. Bailey does justly owe us, and is indebted to us, his several creditors, in the several amounts set opposite our respective names, but, by reason of losses and disappointments in business, he is unable to pay and satisfy us of our full debts and just claims and demands: Now, therefore, we, the said creditors, have resolved and agreed, and by this agreement do resolve and agree, to undergo a certain loss, and to accept of fifty cents for every dollar owing by the said J. W. Bailey to us, the several and respective creditors, to be paid in full satisfaction and discharge of our several and respective debts, as follows, towit: One-third of said indebtedness we agree to take in notes of Horace Ramsdell, dated of this date, payable on or before 18 months from date to each of us pro rata, without interest, and the balance of the fifty cents aforesaid, or one-sixth of our respective claims, we agree to take in notes of J. W. Bailey, dated of this date, payable on or before two years after date to each of us pro rata, with interest after one year, at the rate of eight per cent. per annum. And it is hereby further agreed that neither we, the said several and respective creditors, or any of us, nor the executors, administrators, partners, or assigns of us, or either of us, shall or will, at any time or times hereafter, sue, arrest, attach, or prosecute the said J. W. Bailey, or his property and chattels, for any debt or thing now due to us, or any of us, his respective creditors aforesaid, so as the said J. W. Bailey, his executors or administrators, do well and truly pay unto us his said notes. In witness whereof, we have hereunto set our hands and the amount of our several claims opposite our respective names, the day and year first above written. This is to be construed as in no manner releasing Edwin Miller from his liability to us on said indebted

ness.

"WADHAMS & ELLIOTT, $1,526.38." Then follow the signatures of a large number of Bailey & Miller's creditors, with the amount due each firm set opposite.

It is alleged that the sum of $1,526.38, set opposite the name of Wadhams & Elliott, was the amount due said firm by Bailey & Miller, and the identical claim a portion of which plaintiff alleges he paid on the 24th of September, 1889; that in compli- | ance with said contract the defendant delivered his note for one-sixth the amount due Wadhams & Elliott, and has since paid the same, and has performed every part of said contract by him to be done; that Ramsdell, in compliance with said contract, executed and delivered his note to Wadhams & Elliott for one-third of said sum. The answer further alleges that Bailey paid his note to Wadhams & Elliott on the 5th day of October, 1889; that Wadhams & Elliott knew of the retirement of said Miller, and the agreement of defendant to pay them their claim; and

that they thereafter settled said claim with said Bailey, and for a new and valuable consideration extended the time of payment of the same. The reply denies the new matter in the answer, and then alleges that by composition agreement set out Miller was not released. It is also alleged that, at the time of Miller's payment to Wadhams, Bailey had not paid his note. It is then alleged that Bailey prompted and instigated Wadhams to sue Miller & Bailey on the partnership debt, which is relied upon as an estoppel. The plaintiff proceeded with his evidence, which tended to prove the material facts stated in the complaint, at the conclusion of which, on motion of defendant's counsel, the court nonsuited the plaintiff, for the reason he had failed to prove a case sufficient to be submitted to a jury. It may be proper to add that the witness, Wadhams, was allowed to state, on crossexamination, all facts in relation to said composition agreement, and what Bailey did under it. All the evidence is in the bill of exceptions. The remaining facts appear in the opinion.

A. L. Frazer, for appellant. F. A. E. Starr, for respondent.

STRAHAN, C. J., (after stating the facts as above.) In addition to the facts already narrated, it appears from the evidence that the defendant, Bailey, sent an attorney to Wadhams, who informed him that, by their suing Miller, he could collect the amount due from Bailey & Miller, and shortly afterwards the defendant himself called on Wadhams, and prompted him to sue Bailey & Miller, and at the time said to Wadhams that there was a judgment to be entered up against him in favor of Miller, or Miller's wife, and he would rather that Wadhams should have it as the balance of his claim against Bailey & Miller than that Miller should get it.

Before proceeding to consider the rule of the court in ordering a nonsuit, it is proper to ascertain some of the duties which Bailey owed Miller, by virtue of the terms of the agreement of dissolution. By that agreement he was to pay all debts of every kind then due by Bailey & Miller, with one exception, and at all times thereafter to save, keep harmless, and indemnify Miller against all and every person whomsoever to whom Bailey & Miller were indebted in relation to said partnership, (except one claim,) and of and from all charges, actions, damages, costs, etc., whatsoever, and what has heretofore, or shall at any time hereafter, arise and come against said Miller for, or by reason of, any matter or thing respecting or relating to said partnership. If the contract be to pay the debts, it is broken by mere non-payment, and the outgoing partner can maintain a suit without having paid anything himself. This is like a contract of indemnity, for it is affirmative. So is the covenant to pay the debts, and save harmless. Here are two stipulations, one to pay, and one to save harmless or indemnify, and the former is not merged in the latter, and the obligee can rest upon either. And the covenant to pay is broken by nonpayment, and a suit lies, though the ob

ligee has not actually paid. 2 Bates, Partn. § 636. Bailey, then, being bound by the terms of the dissolution agreement to pay the Wadhams debt, and to hold Miller harmless, could not relieve himself by making a composition agreement with Wadhams, including other creditors, and keep the terms secret. If that agreement operated to discharge both Miller and Bailey from their liability to Wadhams, Bailey was bound, especially when he and Miller were sued for the same debt by Wadhams, to make known to Miller the terms of the agreement, so as to enable Miller to plead it as a defense to the action. This Bailey neglected to do. Not only so, but, contrary to his agreement with Miller, he prompted and instigated Wadhams to sue Miller, for the express purpose of compel ling Miller to pay the debt which Bailey had covenanted to pay, and to indemnify Miller against. Bailey did not even plead the agreement in his own defense when jointly sued with Miller, but allowed that action to go by default as to him. Under these circumstances, we do not consider or decide whether the composition agreement discharged Wadhams' claim against Miller or not. Bailey would not plead that discharge against Wadhams when he had the opportunity, and when it was his duty to have done so, and he shall not now rely upon it for the purpose of defeating Miller's claim. The circumstances estop him. This view of the case requires a reversal of the judgment of the court below, and that the cause be remanded for a new trial, on principles not inconsistent with this opinion.

(19 Or, 538)

CARTER V. MONASTES.

(Supreme Court of Oregon. Nov. 10, 1890.) APPEAL FROM JUSTICE COURT-FILING TRANSCRIPT

-TIME.

Section 2125, Hill's Code, requires the transcript on appeal from a justice of the peace to be filed in the circuit court on or before the first day of the term next following the allowance of the appeal. This requirement is mandatory, and the circuit court has no authority to extend or enlarge the time.

(Syllabus by the Court.)

Appeal from circuit court, Multnomah county; E. D. SHATTUCK, Judge.

The plaintiff recovered a judgment before the justice of the peace of North Portland precinct on the 12th day of December, 1889. Within the time allowed by law, the defendant served a notice of appeal from the judgment, gave a proper undertaking, and the justice allowed the appeal in his docket. Thereafter, on the 1st day of January, 1890, of the circuit court of Multnomah county, the appellant appeared in court, and obtained an ex parte order of said corrt allowing the appellant 10 days in which to file the transcript. The transcript was filed within the 10 days allowed by the court, but not by the first day of the term. Thereafter, the respondent moved to dismiss the appeal, for the reason that the transcript had not been filed in the appellate court within the time allowed by law, which motion was allowed, and the appeal dismissed. The appellant in the court below appeals.

Johnson & Idleman, for appellant. John Ditchburn, for respondent.

"

STRAHAN, C. J., (after stating the facts as above.) But a single question is presented by this appeal, and that is, whether or not the circuit court had power to make the order enlarging the time for filing the transcript. Hill's Code, § 2125, provides: "On or before the first day of the term of the circuit court next following the allowance of the appeal, the appellant must file with the clerk of such circuit court a transcript of the cause. The requirement is imperative, and a compliance with the statute was essential to give the circuit court jurisdiction of the cause. No doubt, as appears from the transcript, the appellant was hindered in the prosecution of the appeal by circumstances over which he had no control, and, if the circuit court had the power, its order enlarging the time was proper; but no provision of the statute conferring such power has been brought to our notice, and we know of none. 1 Amer. & Eng. Enc. Law, 621. We think the circuit court did not err in dismissing the appeal, and its judgment must be affirmed.

(10 Mont. 149)

GARDNER V. FIRST NAT. BANK OF BILLINGS. (Supreme Court of Montana. Oct. 10, 1890.) POWERS-REVOCATION by Death—ApplicaTION OF BANK DEPOSITS.

Where one borrows money of a bank on certain notes, and agrees to deposit money from time to time to pay them, and authorizes the bank to apply his deposits to the discharge of the notes before maturity, if it so desires, the authority thus given is a naked power, not coupled with an interest, which ceased at the depositor's death, and the bank has no authority, after notice of his death, to make such an application of moneys then standing to his credit.

Appeal from district court, Yellowstone County; GEORGE R. MIBBURN, Judge.

The case was tried upon an agreed statement of facts, which, with the admissions of the pleadings, are as follows: On August 18, 1887, J. W. Story and one Jackson made a joint note to respondent, the bank, for $1,000, and also a note with one Severance for $1,200 to the bank, each at 60 days. That on these notes Story borrowed $2,200 from the bank. That, at the time of the loan, Story stated to the bank that he would send to them, from time to time, deposits to meet the notes, and instructed the bank that they might apply such deposits towards the payment of the notes, and that such deposits might be so applied before the maturity of the notes, if the bank desired. The notes drew interest at 14 per cent. per month. The deposits drew none. Story died September 12, 1887, and, September 29th, plaintiff became the administrator of his estate. On the date of his death, September 12th, Story had on deposit with the bank $1,161.68, sent to the bank as aforesaid, and which had not been applied by the bank to the payment of the notes. That prior to September 17, 1887, the bank had notice of Story's death. That on that day the cashier of the bank, on a check signed for Story by himself, drew said money so on