chaser for value, will divest the ownership of the person who lost them, or from whom they were stolen." Shaw v. Railroad Co., 101 U. S. 557. See also Hutch. Carr., § 348. In 2 Pars. Cont. 292, it is said: "The consignor frequently sends to a consignee a bill not indorsed, and then sends to his own agent in or within reach of the same port an indorsed bill-it may be in. dorsed in blank, or to the agent, or to the party ordering the goods—and the consignor sends to his agent with the bill orders to deliver the bill to the party ordering the goods, or to receive the goods and deliver them to him, provided payment be made or secured, or such other terms as the consignor prescribes are complied with. This course secures to the consignor, beyond all question, the right and power of re to overcome the presumption which the terms of the bill raised that the consignee was the owner of the goods. That such is the presumption is well established. Congar v. Railroad Co., 17 Wis. 485; Krulder v. Ellison, 47 N. Y. 37; Lawrence v. Minturn, 17 How. 100; Alderman v. Railroad Co., 115 Mass. 234. See also Tuttle v. Becker, 47 Iowa, 486; 1 Benj. Sales, §§ 577, 579; 2 Am. & Eng. Cyclop. Law, 242, 243. The contract with the canning company required the defendant to deliver the goods to the consiguor. The unindorsed bill of lading presented by Evaus was evidence that the contract was still in force, and that the canning company was then the owner of the goods. The delivery to Evans was not authorized, and was made by defendant at its own risk. Hutch. Carr., §§ 129, 130, 344. But it is said that the canning company clothed Evans with the apparent right to demand the goods, and that since "one of two innocent parties must suffer a loss from the wrong of another, the loss should fall upon the party who put it in the power of that other to perpetrate the wrong." This case does not fall within that rule, for as we have seen the possession of the bill of lading, without indorsement or other evidence of assignment, did not vest Evans with any apparent right to the property. The loss resulted from the negligence of defendant in not insisting upon proper evidence of an assignment before it surren goods consigned to the shipper and delivered without orders to a person who ordered the goods and to whom the shipper had sent an unindorsed bill of lading, drawing on him through a bank for the price, and accompanying the draft with another bill of lading and an order for the goods to be delivered on payment of the draft, though the company was ignorant of the sending of the other bill of lading and draft, as well as of the fact that the goods were not paid for. Appellant insists that it was not in fault in delivering the goods to Evans for the reason that the delivery to him of the bill of lading was in effect an assigument of the goods and invested him with a right to demand and receive them. We are referred to many authorities which are claimed to support this view. One of these is Bank v. Transportation Co., 69 N. Y. 374. Antaining the goods until the price for them is paid or examination of that case and of the cases therein secured to him." This is not only in point, but seems cited will show that what the court really decided to be sound in principle. The fact that Evans prewas that a delivery of the forwarder's receipt with-sented the bill of lading in this case was not sufficient out assigment, but with intent that the title to the goods for which it was given or an interest therein should be thereby transferred, would be effectual to accomplish the transfer intended. Other authorities cited by appellant are to the same effect. In this case it was the intention of the canning company to retain the title and right of possession in itself until the price of the goods should be paid. The bill of lading required the delivery of the goods to the consignor. It did not provide for delivery to bearer or order, but to the Elgin Canning Company. Therefore it is clear that the forwarding of the bill of lading to Evans with directions to pay the draft and obtain the order for the goods did not invest him with any right to the goods as against the consignor. But it is said that defendant was justified in delivering the goods to Evans because of his possession of the bill of lading. The cases of Lickbarrow v. Mason, 1 Smith Lead. Cas. *838, with annotations; Dows v. Greene, 24 N. Y. 638; Allen v. Williams, 12 Pick. 297, and others, are cited in support of this claim. It is true that statements were made in some if not all of those cases which, considered apart from the connection in which they are found, might seem to sustain the claim; but when they are considered in connection with the facts of the cases where found, and the general conclusions of the court which made them, we think they go no further than to hold that the delivery of an unin-dered the goods. Iowa Sup. Ct., Oct. 22, 1888. Weydorsed bill of lading would be a good symbolical delivery of the goods it represented, where such was the intent and purpose of the parties. In Fearon v. Bowers, reported in 1 Smith Lead Cas. *782, cited by appellant, the consignor had sent two bills of lading, one of which was indorsed to one person and the other to another, and the court held that a delivery might be made to the holder of either bill. That case has but little relation to the principle involved in this. Appellant insists that the bill of lading is like a promissory note, in that possession is prima facie evidence of ownership; but we do not think that such is the case. A bill of lading is a non-negotiable instrument. Bank v. Railway Co., 67 Iowa, 534. The following language is pertinent: "Bills of lading are regarded as so much cotton, grain, iron or other articles of merchandise. **They are in commerce a very different thing from bills of exchange and promissory notes, answering a different purpose and performing a different function." Also: "It is not a representative of money used for transmission of money or for the payment of debts or for purchases. It does not pass from hand to hand as bank-notes or coin. It is a contract for the performance of a certain duty. True, it is a symbol of ownership of the goods covered by ita representative of those goods; but if the goods themselves be lost or stolen, Do sale of them by the finder or thief, though to a bona fide pur and v. Atchison, T. & S. F. Ry. Co. Opinion by Robinson, J. CONTRACT-RESTRAINT OF TRADE-"ANY ENGAGEMENT"" ANY BUSINESS "-INVALIDITY.-A contract was entered into between a foreman tailor and his employer, whereby the foreman agreed not to leave the service of the tailor, or enter the service or employ of any other persons, or enter into any engage ment or be concerned or interested in carrying on, either on his own account or otherwise, any business whatsoever within the distance of one mile of a speci fied place, or any other place of business of the employer which he then or thereafter might have during the continuance of the term of three years, or afterward during the further period of two years. Held, that the restraint imposed by such covenant was unreasonable, and that the covenant was not divisible into two parts, and could not be enforced. I am asked by the plaintiff's counsel to break up the agreement, and read it as if the words of the agreement were not to carry on the business of a tailor or any other business, and then to give effect to the words "the business of a tailor," and to reject the words "any other business." But the rule to be applied is that laid down by Willes, J., in Pickering v. The Ilfracombe Railway Co., L. R., 3 C. P. 235: The general rule is that, where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but, where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good." This being the rule, it is impossible to accede to the plaintiff's contention, for that would be in fact to create a new covenant altogether, instead of explaining the existing Covenant. The case of Baines v. Geary, 35 Ch. Div. 154, has also been pressed upon me by the plaintiff's counsel; but there the covenant was divisible into two parts, which fact distinguishes that case from the present case. Chan. Div., May 29, 1888. Baker v. Hedgecock. Opinion by Chitty, J. 59 L. T. Rep. (N. S.) 361. GAMBLING OPTIONS.- A contract entered into in the State of Illinois for the purchase of 150 cars of coal at a fixed price, to be delivered within certain dates, with the privilege of ordering an additional 250 cars on the same terms, is separable, since consisting of two parts-one a contract to purchase, and one a contract for the privilege of purchasing, and as to the part relating to the privilege of purchasing, is a contract for an option to buy at a future time, designed for the benefit of the vendees, and is void, under the Criminal Code of Illinois, section 130, providing that a contract to have or give the option to sell or buy any grain or other commodity at a future time shall be void. It is claimed by appellant that the transaction between the coal company and defendants was virtually two contracts-one of which was legal, and the other illegal; while appellees claim that there was but one agreement, aud that, since that contemplated an actual sale and delivery of at least 150 car-loads of coal, it must be held valid in all its provisions. If there was in fact but a single contract, a part of which was valid, the effect claimed by appellees would not result. If the contract is not separable, and is illegal in part, then it is invalid as an entirety, and cannot be enforced. Dillon v. Allen, 46 Iowa, 300; Cassady v. Woodbury County, 13 id. 116; 2 Pars. Cont. 673; Metc. Cont. 221, 246. But we think the contract is separable. It is said that "if the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable; and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire." 2 Pars. Cont. 517. It is said in Metc. Cont. 246, "that if one of two considerations of a promise be void merely, the other will support the promise; but that if one of two considerations be unlawful, the promise is void. When however the illegality of a contract is in the act to be done, and not in the consideration, the law is different. If for a legal consideration a party undertakes to do two or more acts, and part of them are unlawful, the contract is good for so much as is lawful, and void for the residue. Whenever the unlawful part of a contract can be separated from the rest, it will be rejected, and the remainder established." In this case the purchase-price was to be paid on each shipment, thirty days after it was made, and the price was affixed to each ton of coal. Hence there was no difficulty in separating the parts of the contract, and no injustice would result in so doing. But the agreement must of necessity be considered as separable, for the reason that it consisted of two parts-one of which was in effect a contract of purchase, and the other a contract for the privilege of purchasing. We shall therefore treat so much of the contract as relates to the 250 car-loads of coal as separate and distinct from the remainder. Thus considered, there can be no question that it is a contract to give to defendants the right to buy coal at a future time. But it is said that this right is not an option " within the meaning of the statute, and that the statute "was passed to curb the gambling transactions of boards of trade in large cities, and to reach such contracts there made, and made in similar ways, and was never intended to reach contracts like the one in suit, when, upon an actual sale, a privilege, based upon the same transaction and consideration, was given to take more of the sold article on same terms." We have no guide to the legislative intent in this case, excepting the language of the statute. That gives no color to the claim that its application is not to be as broad as its terms. It is true the word "option" is not defined in the statute; but the pleadings do not show that it was used with reference to any local definition or usage. The Supreme Court of Illinois has defined the word as used in the statute in a number of cases. It has said that "the true idea of an option is what are called in the peculiar language of the dealers 'puts' and 'calls." A 'put' is defined to be the privilege of delivering or not delivering the thing sold, and a call' is defined to be the privilege of calling for or not calling for the thing bought. Optional contracts,' in this sense, are usually settled by adjusting market values, as the party having the option may elect. It is simply a mode adopted of speculating in differences in market values of grain or other commodities. It must have been in this sense the term 'option' is used in the statute. Such a contract is obviously fictitious, having none of the elements of good faith, as in a contract where both parties are bound, and is defined by statute as a gambling contract. Fictitious purchases or sales, such as were in the contemplation of the parties, were as nothing; and it is a matter of no consequence where it is pretended they were made, whether on the board of trade or elsewhere." Pearce v. Foote, 113 Ill. 228; citing Pixley v. Boynton, 79 id. 351. In Teuney v. Foote, 4 Bradw. 594, approved, ou appeal, 95 Ill. 99, the court said: "The word 'option,' as used in the statute here, taken with the context, means a mere choice, right or privilege of selling or buying; and it is the contracting for such choice, right or privilege of selling or buying, at a future time, any commodity, the statute was intended, to prohibit, as coutradistinguished from an actual sale or purchase with the intention of delivering and accepting the commodity specified." The case of White v. Barber, 123 U. S. 392, it cited by both parties to this appeal. In so far as it construes the statute under consideration, it is in harmony with the decisions quoted. By implication, it approved an instruction of the trial court which stated that "the statute is levied against what are called 'puts' and 'calls;' that is, the right or the privilege which a party may have to buy or sell of you at a future day-not an absolute agreement now to sell, but where one man pays another $5 or $10 for the privi lege of delivering to him 1,000 or 5,000 or 10,000 bushels of grain at a future time, or pays him a similar amount for the privilege of buying or accepting from him grain at a future time; a contract which cannot be enforced in terms, because it is wholly at the option of the party holding the option whether he will call for the grain or not. That is what is termed a gambling contract,' or a 'put' or 'call,' or an option to buy or sell at a future time, within the meaning of the Illinois statute." Many cases have been cited by counsel which involve the principle that "when the parties to an executory contract for the sale of property intend that there shall be no delivery thereof, but that the transaction shall be settled by the payment of the difference between the contract price and the market price of the commodity at the time fixed, the contract is void." Bank v. Packing Co., 66 Iowa, 46. But such cases are not instances are admitted, even by the courts, which maintain this theory, which cannot be said to involve any element of fraud, unless by a complete perversion of language and misuse of terms. The confusion to be found in some of the books on this subject is due doubtless to the fact that the fraud referred to has its origin in the effort afterward to set up rights contrary to the conduct of the party, although at the time of the act constituting the estoppel there was the most perfect good faith. The term, as used in such cases, is, as Mr. Pomeroy expresses it, virtually synonymous with "unconscientious" or "inequitable." It is in this sense that it may be said that it is a fraud or fraudulent to attempt to repudiate the conduct which has induced the other party to act, and upon which the estoppel is predicated; but it is entirely another thing to say that the conduct itself the acts, words or silence of the party-constituting the estoppel must be an actual fraud, done with the intention of deceiving. It may therefore be safely said that although fraud may be, and often is, an ingredient in the conduct of the party estopped, it is not an essential element, if the word is used in its commonly accepted sense; and the use of the term is unnecessary, and often improper, unless applied to the effort of the party es directly in point. In the case at bar the intent of the parties at the time the agreement was entered into does not appear. So far as the pleadings show, the defendants may at all times have intended to demand the sale to them of the 250 cars of coal. Under the contract and the statute pleaded, the intent with which defendants entered into the contract does not seem to us to be material. It was nothing which the coal company could enforce. There was nothing in the contract to prevent defendants from changing their intent at pleasure. In the absence of legal or moral obligation, people usually do those things which they think will result in benefit, and avoid doing those which would result in loss. Therefore it must have been understood by both parties to the contract, when it was made, that defendants would not claim the privilege which it attempted to give, unless it should prove to be for their financial interest to do so. If the price of coal advanced after the contract was made, the defendants would insist on the privilege, and if the price declined the privilege would be abandoned. Conceding that the consideration of the optional part of the contract is found in the obligation of defendants to purchase 150 car-loads of coal, yet it is clear that the option was designed for the benefit of defendants, and to secure to them the privilege of speculat-topped to repudiate his conduct, and to assert a right ing in the changes in the market. In our opinion, such a transaction is as much a gambling contract, within the meaning of the Illinois statute, as though the parties to it had intended that no coal should be delivered, but that the coal company should pay to defendants the difference in their favor between the contract price and the market price at the date named for delivery. Iowa Sup. Ct., Oct. 20, 1888. Osgood v. Bauder. Opinion by Robinson, J. DEFINITION-INTOXICATING LIQUORS-“ SALOONS -POOL-PLAYING OF MINORS.-Under act of Arkansas, February 21, 1887, making it a misdemeanor to permit a minor to play pool in a "dram-shop or saloon," a place where cider, birch beer, and ginger ale are served after the manner of dram-shops is a saloon within the meaning of the act. There is nothing in the act, nor in the evil it was intended to prevent, to indicate that the words "dram-shop" and "saloon" are used as synonymous in meaning. Neither in accurate signification, nor by common acceptation, are they identical in meaning. A dram-shop, or place where spirituous liquor is sold by the drink, is commonly called a "saloon;" but the latter word has a much broader meaning. To constitute a saloon it is not necessary that ardent spirits should be offered for sale, or that it should be a business requiring a license under the revenue laws of the State. Kitson v. Mayor, 26 Mich. 325; Goozen v. Phillips, 49 id. 7; State v. Mansker, 36 Tex. 364. A place where cider, birch beer, ginger ale and like refreshments are served after the manner of dram-shops, as the proof shows was done in this case, is a saloon within the letter and spirit of the prohibition of this statute. The influence upon the morals of youths of the company which is supposed to frequent such resorts is what the Legislature sought to avert by this act. Ark. Sup. Ct., Oct. 6, 1888. Snow v. State. Opinion by Cockrill, C. J. ESTOPPEL-IN PAIS-MARRIED WOMAN.-A married woman may be estopped by her conduct in pais as to boundaries. It is urged that actual fraud must exist before an estoppel can be maintained against one sui juris; and a fortiori before it can be applied to a married woman, if against the latter it can be invoked at all. It is true that there is a theory which makes the essence of equitable estoppel to consist of fraud; but this theory is not sustained by principle nor authority. There are many well-settled cases of estoppel familiar to courts of equity, which do not rest upon fraud; and or claim in contravention thereof. The best-considered cases are in accord with the views above expressed. Bank v. Bank, 50 N. Y. 575; Waring v. Somborn, 82 N. Y. 604. And although the earlier Pennsylvania decisions generally leaned strongly in favor of the theory that an actual fraud is of the essence of every such estoppel by conduct, it is worthy of note that in the late case in that State of Bidwell 'v. Pittsburgh, 85 Penn. St. 412, it is said: "It is not necessary that the party against whom an estoppel is alleged should have intended to deceive. It is sufficient if he intended that his cond uct should induce another to act upon it, and the other, relying on it, did so act." 2 Pom. Eq. Jur., §§ 804, 805, et seq. The case of Brant v. Coal Co., 93 U. S. 326, pressed upon us by counsel for complainant as establishing the contention that fraud is an essential element in the application of the doctrine of estoppel, and that it is essential that the party invoking the estoppel was himself not only destitute of the knowledge of the true state of the title, but also of any convenient or available means of acquiring such knowledge, merits special mention. In addition to what we have already said as to the first proposition, we will be content to adopt Mr. Pomeroy's note upon this case, where, after quoting freely of the opinion, he says: "With great deference to the opinion of so able a judge, I think his error in this passage is evident. It consists in taking a special rule, established from motives of policy for a particular condition of fact, and raising it to the position of a universal rule. Where an estoppel by conduct is alleged to prevent a legal owner of land from asserting his legal title, courts of equity, in order to avoid the literal requirements of the statute of frauds, were driven to the element of fraud in the conduct as essential. See the text, sections 805-807. The passage quoted from Judge Story is dealing with this longsettled rule of equity, and not with the subject of equitable estoppel in general. When this special rule is made universal, its inconsistency with many familiar instances of equitable estoppel becomes apparent, and Judge Field is forced to escape from the antagonisin by denying that these instances do in fact belong to the doctrine. If this conclusion be correct, then some of the most important and well-settled species of the estoppel, uniformly regarded as such by textwriters and courts, must be abandoned, and the beneficent doctrine itself must be curtailed in its operation to one particular class of cases. This result is in direct opposition to the tendency of judicial decisions, and of the discussion of text-writers." See note 1 to section 806, Pom. Eq. Jur., and cases there cited. It is worthy of notice also, that in the opinion referred to Judge Field quotes approvingly from the Pennsylvania case of Hill v. Epley, 31 Peun. St. 334, language which is practically, to all intents, an abandonment of the extreme position supposed to be maintained in the Brant Case. The language referred to is: "The primary ground of the doctrine is that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted." The element of fraud is essential either in the intention of the party estopped or in the effect of the evidence which he attempts to set up; so that at last the difficulty seems to be in the use of terms, rather than in the true principles controlling the doctrine under consideration. As to the second proposition for which the Brant Case is cited, it is sufficient to say that it does not sustain the position that the mutuality of the mistake, or the possibility of having discovered it, prevents the application of the doctrine of estoppel. It merely asserts the familiar rule that where the party setting up the estoppel knew the true condition of the title, either in fact or in contemplation of law, the doctrine will not avail him; the fact being in that case, as shown in the opinion, that he knew he was obtaining only a life-estate by his purchase." Tenu. Sup. Ct., Oct. 18, 1888. Galbraith v. Lunsford. Opinion by Folkes, J. EVIDENCE-HANDWRITING-SUBMISSION OF WRITING TO JURY.-On a plea of non est factum, the signatures of defendant's testator to other instruments being proved genuine, and witnesses having testified as to whether they believed the handwritings the same as that to the note in controversy, it is not proper to submit the other writings to the jury for their inspection and comparison. The counsel for the defendant concedes that it has been held to be the rule in this State that it was not competent, in passing upon questions of this character, to submit writings, such as were offered, to the inspection of the jury, for the purpose of comparison by them; but he insists, with earnestness and ability, that the rule is not in harmony with more recent decisions in many of the States of the Union, and with the case of Yates v. Yates, 76 N. C. 142, and that the court should not withhold from the jury the inspection of writings admitted or proved to be genuine, but should permit such writings to be submitted to the jury for the purpose of comparison, and thus to aid them in coming to a correct verdict. The law, as it exists in the different States, is not uniform. In many of them it has been regulated by statute, and in some of them it has been made to conform to the rule insisted on by counsel for the defendant. Rog. Exp. Test. 190. But in most of the States, and with rare exceptions, where there is no statutory regulation upon the subject, the law is held to be as laid down by Gaston, J., in Pope v. Askew, 1 Ired. 16; Rog. Exp. Test. 192; Lawson Exp. Ev. 400. It will be found upon examination that in Rowell v. Fuller's Estate, 59 Vt. 688, and in most of the cases relied on by counsel for the defendant, the papers permitted to go to the jury, for inspection and comparison, were such as were in evidence in the cause for other purposes, or such as were first passed upon by the court and adjudged to be genuine. We think the cases of Pope v. Askew, 1 Ired. 16; Outlaw v. Hurdle, 1 Jones (N. C.), 150; Otey v. Hoyt, 3 id. 407; Watson v. Davis, 7 id. 178; Burton v. Wilkes, 66 N. C. 604, and Tuttle v. Rainey, 98 id. 513, settle the law in this State to be that testimony as to handwriting, founded on what is properly called a comparison of hands, is inadmissible, and that "a jury cannot decide by a comparison of handwriting." Jurors are not generally experts in handwriting; and such evidence, for the many reasons given in the cases cited, would often tend to confuse and mislead them. The case of Yates v. Yates is not in conflict with these authorities. In that case the witness, after examining the signature of John Eller to a deposition admitted to be genuine, aud his signature as a witness to the deed in controversy, was permitted to give it as his opinion that the latter signature was not genuine. The witness, as an expert, was allowed to compare the signature admitted to be genuine with the signature in dispute, but the paper was not submitted to the inspection of the jury, and the comparison was not made by them; and though there is a dictum of Rodman, J., and a reference to some authorities which seem to sustain the position of counsel for the defendant, the point decided is in perfect harmony with the authorities cited. In fact Judge Rodman, in admitting the testimony sustaining the ruling of the judge below, says: "This was permissible under the decision of Outlaw v. Hurdle." N. C. Sup. Ct., Oct. 15, 1888. Fuller v. Fox. Opinion by Davis, J. MECHANICS' LIENS-PROPERTY SUBJECT TO-PUBLIC SCHOOL-HOUSE.-A public school-house is not subject to a mechanics' lien under chapter 170, General Laws of 1887. While in some States it is held that what may be called the private property of municipal corporations-that is, such as they own for profit, aud not for a public use-may be sold on execution, yet the universal rule is, that in the absence of express statutory authority, the property of such corporations, held for and devoted to a public use, is not liable to execution ou a general judgment. This rule is founded upon considerations of public policy, obvious from the very nature of such corporations and the purposes for which they are created. They are mere agencies of the State, brought into being in aid of the civil government of the State in the administration of the local affairs of the districts incorporated. The power to sell, on execution, their property held and used for public purposes, such as court-houses, jails, poorhouses, hospitals, school-houses, and the like, would be fraught with great public evils, and subversive of the very purposes for which such corporations were created. Therefore for the enforcement of judgments against municipal corporations, the courts have allowed another writ, mandamus, to compel payment or the levy of a tax for that purpose. This secures the fruits of the judgment, and leaves the public property intact, for the use to which it is devoted. 2 Dill. Mun. Corp., $576; Freem. Ex'ns, §§ 22, 126; Herm. Ex'us, § 364. For the same reasons, and upon the same considerations of public policy, property which is exempt from execution, on a general judgment against municipal corporations, is also exempt from the operation of a mechanics' lien law, unless it expressly appears by the law that such property was intended to be included; and to warrant this inference something more must appear than a general provision that the claim is to be a lien upon a particular class of property. Unless the State of Kansas be an exception (see Wilson v. School Dist., 17 Kans. 104), this principle of construction is, so far as we can ascertain, universal. The authorities are numerous, and will be found cited in any text-book on the subject. See Phil. Mech. Liens, § 179; 2 Jones Liens, § 1375; Overt. Liens, § 543; Kneel. Mech. Liens, $ 84. While enough can be gathered from the crude and obscure provisions of this statute to indicate that it was designed to be in many respects a radical and drastic measure, yet there is nothing in its language expressive of a legislative intent to repudiate or repeal a doctrine founded upon such a satisfactory basis of public policy. In view of the principle governing the construction of such statutes already referred to, which had been so universally adopted, it is to be presumed that if the Legislaturetion was rejected by the Senate, as was also his nomi nation for internal revenue assessor of New York. There were few Democrats better known throughout the country, he having been the reading secretary of the Democratic National Conventions from 1856 to 1872, inclusive. He was also many times secretary of Democratic State Conventions in this State. He was pointed by the judges to that position when the court was reorganized. This election Mr. Perrin largely owed to the friendship felt for him by the late Sanford E. Church and the late Charles A. Rapallo. Mr. Perrin was popular with the lawyers who made argu ments before the Court of Appeals, being a mau of highly courteous and genial nature. Mr. Perrin leaves a wife and two sons, Ernest W., a lawyer in New York, and F. Stanton, a lawyer in Stanton, Marion county, Florida.-Albany Times. CORRESPONDENCE. TESTAMENTARY CHARGE OF DEBTS ON LAND. Editor of the Albany Law Journal: had intended to change the law in that respect they would have so declared in express terms. It is contended however that this rule of construction, as applied to lien laws, is predicated upon, and follows as a consequence, from the doctrine that such property is exempt from execution upon a general judgment; and hence is in this State inapplicable to school dis-elected clerk of the Court of Appeals in 1868, and aptricts whose property may in a certain contingency be sold on execution. Gen. Stats. 1878, chap. 36, §§ 119122. If a public school-house can be sold under a general judgment, the same as the property of a natural person or a private corporation, there would probably be no good reason why it should not be held subject to the operation of a mechanics' lien law, at least in favor of the creditors of the district. But it will be observed that it is only upon a remote and improbable contingency that any execution can be issued against a school district. It is only after a specific tax has beeu levied for the payment of the judgment, and the time for the collection of the tax, and for paying over the money by the county treasurer, has expired and the district still fails to pay the judgment. Ample opportunity is thus given to raise funds with which to pay the judgment, without endangering school property. But under this lien law the court rendering the judgment is required immediately to order the sheriff to sell the property on three weeks' notice. Under such procedure a school-house might be sold for a small part of its value, and be irretrievably lost before any funds could be raised by taxation with which to pay the judgment or redeem the property. It may also be suggested, that if such property is subject to the provisions of this statute, it would be so, not merely in favor of the creditors of the school district, but also in favor of laborers and materialmen to whom the district owed nothing, and with whom it had no contract relations. It would require more than is found in this statute to justify us in holding that the Legislature intended to make so radical a change in the law as to subject the public property of these governmental agencies to liens in favor of labor or materialmen. Minn. Sup. Ct., Oct. 16, 1888. Jordan v. Board of Education of Taylor's Falls. Opinion by Mitchell, J. OBITUARY. EDWIN O. PERRIN. EDWIN O. PERRIN, clerk of the New York Court of Appeals, died suddenly of apoplexy at his home, No. 255 West Forty-second street, New York, December 19. He had been unable to attend to his duties for several months. Mr. Perrin was born in Springfield, Ohio, December 3, 1822. After being graduated from the Springfield Academy he studied law with his father, Judge Joseph Perrin, and was admitted to the bar in 1842. He then engaged in the practice of law in Memphis, Tenn., and was there elected a judge. In 1850 he married Rachel Stanton, a sister of Governor F. P. Stanton, of Kausas, and of Judge Richard H. Stanton, of Kentucky. For years he served as navy agent at Memphis under President Taylor. In 1857 he accompanied Robert J. Walker to Kansas, and took an active part in the canvass against the Lecompton Constitution. In 1860 he moved to Brooklyn and established a branch of the Memphis law firm of Perrin & Wickersham, of which he was a member. During the same year he accompanied and assisted Stephen A. Douglas in his presidential canvass of Maine. He was sent on a confidential mission in 1861 to New Mexico, where he served with the command of the famous Kit Carson. He was subsequently nominated by President Johnson for chief judge of the Supreme Court of Utah, but his nomina Mr. Elial F. Hall did a good service in your number of,November 10, 1888, in calling attention to the case of City of Rochester v. Smith, 17 N. Y. St. Rep'r, 146, decided by the Court of Appeals on January 29, 1888. But I do not see that it makes the change in the law of testamentary charges of debts on real property which he suggests. It simply does what has long been a crying need in this State-clears up and settles the law on that subject. By the common law a debt of the decedent could not be collected at all unless he left sufficient personal property to pay it, or unless by his will be charged it upon his real property. The result of this was that the courts, in order to do justice, seized on any expression in a will which could, even by a forced construction amount to a charge of debts on the realty, and thus grew up a doctrine of hair. splitting and niceties, which should have no applica tion under our changed state of the law on that subject. By our statutory provisions alldebts of the decedent are made a charge on the realty for three years after the granting of letters. Judge Gray, after calling attention to this, states that the course of administration in this respect should not be charged without clear evidence of intention on the part of the testator to charge his debts on the realty. In view of our statute provisions, he does not consider that phrases like “after the payment of my debts I give and devise," etc., any longer create such a charge. Sections 2749 and 1859 of the Code of Civil Procedure clearly show that such was the intention of the Legislature. The former section provides for proceedings to be taken at any time within three years after the granting of letters to sell the real estate of the decedent to pay his debts (the personal estate being insufficient), excepting where the realty is devised "expressly charged " with such payment; and that the latter provides that the Code provisions regulating actions by debtors against heirs and devisees shall not affect the liability of an heir or devisee where by will the debt is "expressly charged upon the real property descended or devised. It seems plain from these provisions that the legislative intent in making this general charge of all debts on the realty for three years was that no will should thereafter be held to charge debts on realty unless it "expressly" did so; otherwise real estate could be sold under such provisions for debts though it be by the will charged with the payment of debts; whereas the meaning is, that if charged with the debts by the will, the real estate shall not be sold under the statutory provisions, and unless it be " expressly " charged it is not charged at all. BROOKLYN, Dec. 22, 1888. W. J. G. |