There is one American case which is to the same point. Thomas vs. Hopper, 5 Alabama R. 442. Although there is no case in Pennsylvania expressly to the very point, yet Halliday vs. Bissey, 2 Jones, 347, was decided upon, a distinction altogether unnecessary, if the rule be not the same here. It was there held that when the debt arose upon a contract made with the executor, though acting in his character as such, he was entitled to make it the subject of a set-off in a suit against him for his own debt.

There seems to be good reason for the rule. It would be to allow the executor to pay his own debt with the assets of the estate. If such payment were made in pais, the creditor receiving the payment, with knowledge of the circumstances, would be liable to those beneficially interested in the estate. Can it be equitable to compel the plaintiff to accept in part payment what he may be called on hereafter to pay again or expend, if the executors should prove to be insolvent? Or if the judgment of the Court would protect him, is it equitable to preclude the creditors and legatecs from their right to question the validity of the transaction, and follow the assets of the estates into the hands of a party unequivocally cognizant of their misapplication? What a wide door is open to fraud and collusion under the sanction of a Court of justice, by adopting either horn of this dilemma.

It is said that upon the allowance of the set-off, the defendants would be chargeable with the amount in their account as executors, and a doubtful debt might be thus saved to the estate. The same reason would hold in allowing payment or transfer of assets in pais— the executor might sell and put the money in his pocket, and it comes at last to his personal responsibility. But it does not so come in all cases. There are some guards which the law has placed against the misapplication of trust funds, which it is quite important to the interest of cestui que trusts, often helpless women and children, should be carefully preserved.

Rule discharged.

In the Supreme Court of Pennsylvania.

APPEAL BY LEAH PASSMORE'S ADMINISTRATOR IN THE DISTRIBUTION UNDER THE WILL OF HENRY ETTER, SR.

1. When a devise or bequest is ambiguously expressed, it is always important to bear in mind the inclination which the law has in favor of the heirs, which, with us, is a rule of equality, and also in favor of a vesting of the estate at the death of the testator, or at the earliest possible period thereafter, and also in favor of an absolute, and against a defeasible estate.

2. It is under the influence of this bias, that words of survivorship are generally referred to at death of the testator, if there be nothing indicating a contrary intention.

3. Where land was devised to a son for life, with the provision that at his death, without issue living, it "shall revert to my estate, and shall be sold by my executors, and the proceeds thereof distributed among my surviving heirs herein named, agreeably to the intestate laws of Pennsylvania." Held, that this created a vested remainder in the devisces and legatees living at the death of the testator, subject to be devested on the son's dying, leaving issue, and that the share of one of the devisees who died before the termination of a precedent estate, passed to her legal representatives.

The opinion of the Court was delivered by

LOWRIE, J.-The estate which the testator had granted to his son Henry, having terminated, the question now arises what disposition he intended should be made of the reversion. He says it "shall revert to my estate, and shall be sold by my executors, and the proceeds thereof distributed among my surviving heirs herein named, agreeably to the intestate laws of Pennsylvania," and this is the provision that is to be interpreted.

In other parts of his will he provides for his living children, and for the children of those that were dead. In relation to the clause in question, it is very apparent that he does not use the word "revert" in the strict legal sense; for he certainly means to exclude Henry from having any share in the reversion. In other words, the estate which the devisees or legetees take, is not by way of reversion, but as a gift of the reversion. It is intended for only some of his heirs, and is therefore only a remainder. For the same reason he does not use the word heirs, as correctly indicating their re

lation to him, but descriptively, meaning his children and grandchildren.

The trouble is to ascertain what he means by his "surviving heirs herein named," and it arises from the fact that his daughter Leah died without issue, before her brother Henry's estate terminated. Was she surviving heir of her father within the meaning of his will? If, when he wrote it, he was thinking of his children and grand-children who had already died, or who might die before he did, then she was. He does not describe those who are to take after Henry's death, as those who shall be then surviving heirs, nor as the survivors of his devisees, but his surviving heirs who are herein named; which grammatically refers to the present time, that of making the will. And such also would be the most natural construction of a gift of the reversion to be divided "agreeably to the intestate laws."

But the case presents itself in other aspects. The estate granted to Henry was in terms a life estate, with remainder to his unborn issue, "if such he shall have to survive him." Now, if we treat this as an estate tail, the clause we are especially considering gives a vested remainder in the other devisees. If it was only a life estate, with a contingent remainder in favor of his unborn children, then there was a vested remainder in the other devisees, subject to be defeated by the death of Henry leaving issue living. In either way, therefore, the other devisees or legatees had a vested estate at the moment of the testator's death. 3 Madd. 410, 2 State Rep. 69; 1 Baldw. 174; 2 Keene, 284; 7 W. & S. 279. This view is very important, for it gives to the devisees an estate independently of the directions concerning distribution, and makes those directions merely the means of placing them in the enjoyment of it. And if we give the fullest meaning that is allowed here, to his word " revert," we arrive at the same result; for as a reversion, it must vest in them immediately on the taking effect of the temporary estate of Henry, that is, on the testator's death.

When a devise or bequest is ambiguously expressed, it is always important to bear in mind the inclination which the law has in favor of the heirs, which, in Pennsylvania, is a rule of equality, and also in favor of a vesting of the estate at the death of the testator, or

as early as possible thereafter, and also in favor of an absolute, and against a defeasible estate. All these principles are of use here.

It is in perfect accordance with them, and under their influence, that it has so often been decided that the word survivors shall be referred to the death of the testator, if there is nothing indicating a contrary intention. It favors, in this instance, equality among his heirs or devisees, and we see no word tending to show that he meant to place Leah on a different footing from the others. He makes no provision in defeasance of her estate in any event, but, on the contrary, he seems to say that it shall go to her as an heir, agreeably to the intestate laws. It requires clear expressions or implications to devest her vested estate.

We are therefore of opinion that when he provided that the remainder should go to his "surviving" heirs, he meant, as testators very often mean by that word, his "other" heirs, or rather devisees and legatees. And when he said "agreeable to the intestate laws," he added a confirmation to this view.

It is not necessary to allude to the sale of the land, except to say that it could not be sold as Henry's after it fell back to the estate, and that the sale was proper then, only under the power given to sell and distribute according to the clause principally discussed. Decree accordingly.

In the Court of Errors of Mississippi.

HATCH WHITFIELD vs. WILLIAM P. ROGERS.'

1. The principle is well established, that every common trespass is not a foundation for an injunction, where it is only contingent and temporary; but if it continue so long as to become a nuisance, the Court will interfere and grant an injunction. 2. The rule is laid down that, in order to give jurisdiction, there must be such an injury, as from its nature is not susceptible of being adequately compensated by damages at law, or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance.

3. A private individual may obtain an injunction to prevent a public mischief, by which he is affected in common with others.

On appeal from the Northern District Chancery Court at Fulton: Hon. Henry Dickinson, Vice-Chancellor.

We are indebted to the civility of the Reporter for the sheets of his forthcoming volume. This case is reported in 4 Cush., 84.

The facts are substantially stated in the opinion of the Court, by Mr. Justice HANDY.-This was a bill filed in the District Chancery Court at Fulton, by the appellee, against the appellant, to enjoin him from the erection of a mill-dam. The bill alleges, in substance, that the complainant's lands, which lay in the vicinity of the mill-dam about to be made, would be inundated by the construction of it, so that their value would be greatly lessened and much of the timber killed, by the damning up of the water; and that the health of the neighborhood would be greatly injured by the stagnation of the water produced by the dam. The answer denies the material allegations of the bill, and much testimony was taken on both sides. The Vice-Chancellor directed the following issues to be tried in the Circuit Court of Monroe County, where the matter complained of was located. 1. Whether the mill-dam would operate a private nuisance to the complainant. 2. Whether or not it would operate a public nuisance to the neighborhood in which it was to be erected.

And on the trial in the Circuit Court the jury found a verdict that it would operate as a public nuisance; upon the return of which verdict to the Vice-Chancery Court, a perpetual injunction was decreed; and hence the case is brought to this Court.

1. It is insisted, in the first place, on the part of the appellant, that the complainant was not entitled to relief in equity on the ground of the private nuisance; because relief in equity will only be granted in such cases where the mischief is irreparable and cannot be compensated in damages. Authorities are to be found holding this doctrine; but the modern and more approved cases extend the relief in equity much further, upon the just principle of interposing to prevent the evil, rather than to compensate for it after it has been committed. Thus it is held to apply to cases of diversion of watercourses, or pulling down banks, and exposing the complainant to inundation. Eden on Injunc. 269; 1 Bro. C. C. 588; 10 Yes. ́es. 194. In Coulson vs. White, 3 Atk. 31, Lord Hardwick said, "Every common trespass is not a foundation for an injunction, where it is only contingent and temporary; but if it continues so long as to become a nuisance, the Court interferes, and will grant