sum of $49.51, and had earned wages in the employment of the garnishee, remaining unpaid, to the amount of $41.25, which, subsequent to the service of the writ on the garnishee, were paid by it to W. J. Carney & Co.

The garnishee attempts to justify the payment under the order given by the defendant, and accepted by it, no notice of a revocation of the order having been given to it by the defendant. We do not think the garnishee was warranted in paying over the money earned by the defendant after service on it of the writ. Authority to make payment under the defendant's order was limited to the firm of Whaley & Carney. That authority ceased on the dissolution of that firm, or, at all events, when sufficient money had been paid to cancel the defendant's indebtedness to that firm. The dissolution of that firm was notice to the Rhode Island Granite Works equivalent to notice of a revocation of the order, since the authority conferred by the order was necessarily at an end. The subseThe subsequent payments to W. J. Carney & Co., when made, were wholly unauthorized, thougn, prior to the garnishment, these were ratified by the defendant, by his implied assent arising from his acquiescence in the payments, and the application of them to his indebtedness to W. J. Carney & Co. But the service of the writ put an end to the defendant's power to consent to or to ratify the further payment to Carney & Co., as against the plaintiff, so that the garnishee made the payment at its peril. The fund, from the time of the service on the garnishee, was attached or trusteed in its hands, and it was its duty to have held it to await the result of the plaintiffs' suit. We are of the opinion that the common pleas division erred in refusing to charge the garnishee. Plaintiffs' petition for a new trial granted, and case remitted to the common pleas division, with direction to enter a judgment charging the garnishee.

McGOUGH v. HUGHES et al. (Supreme Court of Rhode Island. Jan. 12, 1895.)

WILLS-PAROL EVIDENCE-TESTATOR'S INTENT. Testator made a will bequeathing sums of money to certain persons, but made no disposition of his residuary estate, nor any provision for the payment of the legacies. Held, that parol evidence that testator made the will two days before his death, and that he had then no personal property, is not admissible to show his intention to charge the payment of the legacies on his land.

Bill by Peter McGough against James Hughes and others. Heard on demurrer to bill. Demurrer sustained.

Dennis J. Holland and John M. Brennan, for complainant. Thomas W. Robinson and Cooke & Angell, for defendants.

MATTESON, C. J. This is a bill to enforce the payment of a legacy which is claimed

to be a charge on real estate. The respondents have demurred to the bill. The case made by the bill is as follows: Thomas Campbell, late of Lincoln, died in June, 1877, leaving a last will and testament, dated May 30, 1877, and duly admitted to probate on July 28, 1877. This will, omitting the formal portions, is as follows: "First. I give and bequeath to my wife, Bridget Campbell, one-third of the income of all my estate during her natural life, the same to be in lieu of dower. Second. I give and bequeath to my stepdaughter Mary Jane McGue and Margaret Gillen and my stepson Peter McGue the sum of seven hundred dollars each. Third. I give and bequeath to my children Thomas Campbell, Jr., Ellen Hughes, wife of James Hughes, and Joseph Campbell. the sum of one thousand dollars each." At the time of his decease, the testator was seised and possessed in fee simple of a certain parcel of land on the northerly side of Central street, in the village of Central Falls, in Lincoln, particularly described in the bill, of which the respondents are now seised and possessed. This real estate was of the value of $8,000, and amply sufficient for the payment of the legacies given by the will. At the time of making his will, and at the time of his death, the testator had no other real estate, and was possessed of no personal estate out of which the legacies could be paid. The complainant was the stepson of the testator, and is the same person named as a legatee in the second clause of the will as Peter McGue.

The question raised by the demurrer is whether parol evidence is admissible to prove the facts averred in the bill that the testator had no personal estate out of which the legacies could be paid, and had no other real estate than that mentioned in the bill, for the purpose of creating an inference that, as the will was made only a few days before the testator's death, he must have known that the legacies could be paid only out of his real estate, and hence that he must have intended to charge the payment of them on the real estate. That the intention of a testator is to be gathered from the will, and that, to charge real estate with the payment of legacies, the intention to charge must appear in the will, either expressly or by implication, are fundamental principles in the interpretation of wills. If the provisions of a will be ambiguous, uncertain, or obscure, proof of extrinsic facts may be given to remove the ambiguity, uncertainty, or obscurity, and thus to aid in the construction of the will and in arriving at the intention of the testator; but such proof cannot be permitted to vary or add to the terms of the will, and is wholly unimportant and inadmissible when the will itself is clear and unequivocal. Leigh v. Savidge, 14 N. J. Eq. 124; Lewis v. Douglass, 14 R. I. 604; In re Wells, 113 N. Y. 396, 21 N. E. 137; Schouler, Wills (2d Ed.) § 579. The will before us contains no express

charge on the real estate, nor any language from which a charge can be implied. It makes no mention of or reference to the real estate. It does not even contain a gift of the residue of the estate, under which the real estate might pass. In these respects the case is unlike those principally relied on by the complainant, in which proof of extrinsic facts like those averred in the bill was deemed admissible in ascertaining whether or not it was the testator's intention to charge real estate devised by a general residuary clause with the payment of legacies when the personal estate was insufficient for that purpose. McCorn v. McCorn, 100 N. Y. 511, 3 N. E. 480; Briggs v. Carroll, 117 N. Y. 288, 22 N. E. 1054; Reid v. Corrigan, 143 Ill. 402, 32 N. E. 387; Leigh v. Savidge, 14 N. J. Eq. 124; Turner v. Gibb, 48 N. J. Eq. 526, 22 Atl. 580. To give effect to proof of such facts in a case like the present, and create a charge on real estate, would be to add to the terms of the will a charge on the land, without any language in the will, either express or implied, on which to base an intention of the testator to make the charge. Such a proceeding would be not only unwarrantable, but subversive of the statute requiring wills to be in writing. Demurrer sustained, and bill dismissed.

GULLIVER v. FOWLER et al.

"all courts shall have power to restrain theamendment and alteration of pleadings, so far as may be necessary to compel the parties to join issue in a reasonable time for trial," it is within the discretion of the court to refuse to allow an amendment of the answer on the trial.

7. In an action on a written guaranty, which, as set out in the complaint, recites that it was given "for value received," where the answer "admits the truth of the matters contained in the plaintiff's complaint," a further and separate defense that the guaranty was without. consideration is void for repugnance.

8. The fact that a clause in a lease provided: that the premises should be at all times open to. the inspection of the lessor, "and for necessary repairs," in connection with the fact that the lessor made certain repairs as demanded, and! made no claim that the lessee was responsible for any, did not authorize a finding that the lessor thereby agreed to make all necessary and ordinary repairs.

9. Where a lease contains no express agreement to make all necessary repairs, its stipula-tions cannot be thus enlarged by parol evidence.

Appeal from court of common pleas, New Haven county; Hotchkiss, Judge.

Action by Henry S. Gulliver against Julia M. Fowler and J. C. Kebabian to recover rent under the terms of a lease of certain prem-ises by plaintiff to the former defendant, and: a written guaranty of its payment by the latter. From a judgment for plaintiff, defendants appeal. Affirmed.

Seymour C. Loomis, for appellants. Edmund Zacher, for appellee.

BALDWIN, J. The plaintiff in this action sued for rent upon a written lease. The de

1. In an action for rent, error in restricting proof of damage under a counterclaim by defendant for fraud in procuring the lease, and for the lessor's breach of his warranties and agreement to repair, is harmless when defendant fails to prove the allegations of such counterclaim.

2. In an action by a lessor to recover rent, in which damages were counterclaimed for a breach of warranties and of an agreement for repairs, but such allegations failed of establishment in proof, error in charging the jury erroneously as to the measure of such damages was harmless.

3. Under a lease of premises for a boarding house, the measure of damages for breach of warranties as to the heating apparatus and for breach of an agreement to repair is the rental value of the rooms which cannot be let because of the lack of heat, or of their unrepaired condition.

4. Proof of the damage suffered by the tenant in a lease permitting the occupation of the premises as a boarding house, by the landlord's failure to perform his agreement to repair and furnish proper heating facilities as expressed therein, should not be restricted to evidence of applications for rooms actually made and withdrawn on this account.

5. Gen. St. § 2969, which excuses a tenant from paying rent, though continuing his occupation, if the tenement is, without his fault or neglect, so injured as to be unfit for occupancy, does not apply to the case of an injury occurring from the want of ordinary repairs.

6. Under Gen. St. § 1027, providing that

allegations of the complaint to be true, pleaded in avoidance that the plaintiff, by reason of fraud, false warranty, and breach of an. agreement to repair, was liable to Mrs. Fowler, the lessee, in damages exceeding the rent accrued; and she added, by way of counterclaim, a demand for a still larger sum, found-ed on the same grounds. The plaintiff replied by what was substantially a general denial, and the verdict finds the issue in his favor, and gives him the full amount of the rent in arrear. Several errors are apparent on the record; but we think none of them are such as to require a reversal of the judgment. The pleadings were such that the burden of proof rested on the defendants, and they accordingly opened and closed the case.

The counterclaim joined claims sounding in tort with claims founded in contract, but all connected with the transaction which was the subject of the plaintiff's action. He had let a house to Mrs. Fowler, knowing that she intended to sublet rooms in it to lodgers, and with the privilege of so doing. She claimed that the heating apparatus was so defectivethat the rooms could not be properly warmed in cold weather, whereby she had lost their use up to the time of trial, and that for suchloss the plaintiff was responsible. Had she proved her charges of fraud, false warranty, and agreement to repair, she would have been entitled to the resulting damages, computed to the time of trial. Her counterclaim placed

her on the same footing, in this respect, as if she had been the plaintiff in an independent action. She had a right to prove, and was bound to prove, her entire damages. Burritt v. Belfy, 47 Conn. 323; Gen. St. § 1050. Nor should she have been restricted, in showing the defects in the heating apparatus, to its condition prior to January 1st. As long as it continued defective, and the rooms were thus left insufficiently heated, her cause of damage was a continuing one. The lease was worth less up to the time of trial than it would have been had the heating apparatus been adequate, and the amount of this difference between what it was worth for her purposes with cold rooms and what it would have been worth with rooms properly heated would represent her loss. The court of common pleas therefore erred in restricting her proof of the condition of the house and of loss of rents to the period before January 1st.

It erred also in limiting too narrowly the mode of proof. The measure of damages, assuming her claims to be well founded, would be the rental value of the rooms, for the purpose of letting which she had hired the house, which she could not let, on account of the lack of proper heat in them. Myers v. Burns, 35 N. Y. 269. Such loss of the use of these rooms, arising from her inability to let them, could be shown otherwise than by evidence of applications actually made to her, and withdrawn on this account. If the rooms were untenantable in cold weather, she was not bound to seek for lodgers during the winter, or to show that applicants for lodgings had examined and declined to take them.

But the question of damages became immaterial when she failed to establish the claims upon which her right of recovery depended. The admissions in her pleadings made her the "actor" in the suit, as to her answer as well as her counterclaim. The issue was joined upon her claims, not upon the plaintiff's; and it was found against her. Had the jury found that the plaintiff was guilty of fraud, or chargeable with a false warranty, or breach of an agreement to repair, it would have been their duty to return-and we must assume that they would have returned-a verdict in favor of the lessee, upon the counterclaim, even though they had found only nominal damages. Their verdict, as given, is in favor of the plaintiff both on answer and counterclaim, and as the subject of each was identical, establishes the invalidity of each of the charges made by the lessee. As, therefore, no wrong was done, and no contract broken by the plaintiff, the evidence introduced or offered in support of Mrs. Fowler's claim for damages consequent on such wrong or breach of contract was unimportant, and she can have suffered no injury by the exclusion of that in respect to which the court of common pleas was in error. Had the claims been presented simply by an answer, it would have been possible for the jury, though believing them to be well founded, to return a

verdict against her, for lack of evidence of damages; but, as they were also brought up by her counterclaim, the verdict upon that determines the ground upon which they proceeded, and shows that the decisive facts up on which her right to damages rested were found against her.

The court properly instructed the jury that Gen. St. § 2969, which excuses a tenant from paying rent, though continuing his occupation, if the tenement is, without his fault or neglect, so injured as to be unfit for occupancy, did not apply to the case of an injury occurring from the want of ordinary repairs. This was in accordance with the view of this statute taken by this court in Hatch v. Stamper, 42 Conn. 28; and the change in its phraseology in the Revision of 1875 was evidently made simply for the sake of brevity, and did not affect its legal construction.

The refusal to allow an amendment of the answer upon the trial, in order to let in evidence of inconvenience to Mrs. Fowler personally by the defects in the heating apparatus, was a matter resting in the discretion of the trial court. Rule 3, under Prac. Act. § 6 (Practice Book, p. 14), declaring that, "in all cases of any material variance between allegation and proof, an amendment shall be permitted at any stage of the trial,” must be read in connection with the provisions of Gen. St. § 1027, that "all courts shall have power to restrain the amendment and alteration of the pleadings, so far as may be necessary to compel the parties to join issue in a reasonable time for trial." An amendment of the pleadings, when the case is on trial, and the evidence partly in, is never a matter of absolute right.

There was no error in striking out the testimony of Mrs. Fowler as to her conversation with the plaintiff's agent relative to the execution of the guaranty. Not only was the conversation, as stated, too indefinite on each side to affect the obligation which the guaranty, as afterwards executed, imports, but the defense of want of consideration was not open to either of the defendants upon the pleadings in the case. The plaintiff set out the lease and guaranty in his complaint, and alleged that the defendant Kebabian signed the latter for value received. The guaranty itself recites that it is given "for and in consideration of the letting of the premises within described, and for value received." The joint answer of the defendants begins thus: "The defendants admit the truth of the matters contained in the plaintiff's complaint, but in avoidance of the same set up the following facts." Four sep

arate defenses are then pleaded, the third of which is that the guaranty was signed without consideration. The complaint, however, had alleged that it was signed for value received, and this and every other of the plaintiff's averments had been admitted to be true before the third defense was set up. The latter was therefore void for repugnancy, and

no evidence was admissible in its support. Gould, Pl. c. 3, § 168.

In support of the fourth defense, the court was requested to instruct the jury that they were at liberty to infer that the plaintiff had agreed to make all necessary repairs from the clause in the lease, "Said premises shall be at all times open to the inspection of said lessor or his agents, to applicants for purchase or lease, and for necessary repairs," taken in connection with the fact that the plaintiff had made all repairs, which had been requested, except that he did not repair the steam heater so that it would heat the house, and the further fact that no claim was made that the lessee should make the repairs. The court gave this instruction, adding that the word "repairs" meant ordinary repairs, but would not include the substitution of one system of heating for another, or a new heater, unless the old one was worn out. The defendants complain of this addition, but, in our opinion, the charge, upon these points, was much too favorable to them. The lease contained no express agreement to repair, and the jury were not at liberty to read such an agreement into it by the aid of the reservation to the lessor of a right of entry to make necessary repairs. Such a right is necessary for his protection should an occasion arise for extraordinary repairs, and reserving it, in words broad enough to cover also the case of ordinary repairs, could not oblige him to exercise it in respect to either. The only other reference to repairs made in the lease is in the clause requiring the lessee "to keep in repair all plumbing caused by freezing or careless use or misuse of the same." term was to commence September 1, 1893, and the lease was executed August 30th. The fourth defense set up that on or about the time of its execution, the plaintiff agreed with the lessee that he would make all necessary repairs, so that the house would be suitable for the purposes of a lodging house keeper; and that she signed it in reliance upon this agreement. The demurrer which was interposed to this defense should have been sustained. No parol agreement could be thus set up to enlarge the stipulations in the lease. Osborne v. Taylor, 58 Conn. 439, 20 Atl. 605.

The

It is claimed by the defendants that the court, in recapitulating the evidence to the jury, did not state correctly the testimony of one of the witnesses. If so, the jury, before whom he gave his evidence, can hardly have been misled by it. The duty of recollecting and weighing the evidence belongs to them. It is enough, however, to say with regard to this exception that it is not supported by the finding, in which no part of the testimony of the witness in question is given or described:

The court of common pleas committed no errors which have prejudiced the defendants, and a new trial is denied. The other judges concurred.

ELLIOTT v. MONTELL et al. (Court of Errors and Appeals of Delaware. Jan. 8, 1885.)

ASSIGNMENT FOR CREDITORS - VALIDITY - JUDGMENT ON CASE STATED-REVIEW BY APPEAL.

1. A voluntary assignment for the benefit of creditors, to which none of the creditors have assented, is invalid as against execution creditors of the assignor.

2. Act March 18, 1875, declaring certain requisites to a valid assignment for the benefit of creditors, does not render valid an assignment embodying such requisites, unless it would have been valid before the passage of the act.

On Motion to Dismiss.

An appeal does not lie to review a judgment rendered on a case stated, and referred to the court, without a reservation in the case stated of the right of appeal.

Appeal from chancery court, New Castle county.

Action by Edwin E. Montell and others against Alfred S. Elliott, assignee of the New Castle Iron & Steel Company. The case was stated and referred to the opinion. of the lower court. There was a judgment for plaintiffs, and defendant appeals. missed.

Benjamin Nields and George Gray, for complainants. John H. Hoffecker, Jr., for defendant.

The following is the opinion of the court below (Saulsbury, Ch.):

"It is agreed that on the 24th day of October, 1881, the New Castle Iron & Steel Company, then being indebted to divers persons and firms, and, among others, to Edwin E. Montell, Grubb & Sons, and Edward S. Davies, made a voluntary assignment of all. its effects to Alfred S. Elliott, in trust to sell and dispose of the same, and to collect and recover all the outstanding claims and debtsdue the said company, and from the proceeds, after deducting his reasonable costs and charges, to pay the creditors of the said: company in full, if the assets realized should be sufficient, but, if not sufficient, to pay the demands of said creditors pro rata, without preference as between individuals. Alfred S. Elliott, the assignee, accepted the trust, and entered upon the discharge of his duties under it, and filed with the register in chancery an inventory of the effects assigned, on the same 24th day of October, 1881, accompanied by his affidavit, and gave bond with sureties; and on the same day the chancellor appointed appraisers, who returned their appraisement on the 26th day of October, 1881. It is further agreed that the creditors of the New Castle Iron & Steel Company had no notice or knowledge of the said assignment at the time of its execution, and that neither Montell, Grubb & Sons nor Edward S. Davies have ever given any assent thereto. It further appears as admitted that the said Montell, Grubb & Sons and Davies have severally recovered judgments on their respective claims in the circuit court of the

United States for the district of Delaware, at the October term, 1881, of said court, on the 25th day of October, and subsequently caused writs of fieri facias to be issued, which were delivered to the marshal, who levied upon the goods and chattels assigned as aforesaid, as the property of the said company, and advertised them for sale in execution of the writs. Pending the proceedings the assignee wrote to the creditors, suggesting that the interest of all parties would be best promoted by permitting them to dispose of the goods at private sale, and obtained the consent of the said execution creditors, among others, with reservation of their rights, the complainants expressly stipulating that their status was not to be affected, but that the fund should be held subject to the determination and distribution of a court of equity upon all the facts. By this sale, therefore, the goods have simply been converted into money, without altering the position of the parties in relation to the right thereto.

"Upon the facts, the case before me is reduced to the consideration of two questions: (1) Whether the assignment by the New Castle Iron & Steel Company, taken irrespective of the act of the general assembly passed March 18, 1875 (volume 15, p. 311), was sufficient to vest the property therein mentioned in Alfred S. Elliott, the assignee, so as to protect it against creditors neither parties nor privies to the said assignment, nor consenting thereto. (2) Whether, if not otherwise protected, the said act of March 18, 1875, has the effect to render the assignment valid, so as to have that operation.

"1. In determining the first question, it seems to me that this case falls clearly within the principle announced in Waters v. Comly, 3 Har. (Del.) 117; and, whatever might have been my opinion if the matter had been res integra, I am bound by the judgment of the court of errors and appeals. In that case Waters and Laird, being in failing circumstances, executed a bond to McMath, Burgess, and Kelley for a large sum of money, exceeding their assets, upon a parol trust, to pay the creditors mentioned in a schedule; Kelley, one of the assignees, being a creditor to the amount of $400. It is manifest from the statement of facts that there was an attempt to prefer creditors, in which it differs from the case now before me, but the decision of the court did not proceed wholly nor mainly upon that consideration. It was an appeal from chancery, and the chancellor, in discussing the meaning of the act concerning fraudulent assignments, had said: 'It is apparent this act was not made to prevent assignment, but to prevent persons in contemplation of insolvency, either by assignment or otherwise, doing any act to prefer creditors. This view was not sustained by the court of errors and appeals. On the contrary, it was distinctly announced by that court, and reaffirmed in subsequent cases,

that, when no assignment is attempted, the preference by a debtor of particular creditors, either by payment or through the instrumentality of trade, is not forbidden, even if done in contemplation of insolvency. In the case of Wharton v. Clements, 3 Del. Ch. 209, Chancellor Bates construes the case of Waters v. Comly to announce the conclusion of the majority of the court on this point,that the bond, being given in an amount exceeding the whole of the property of the debtor, was equivalent to and a substitute for a formal assigninent, and, as such, was an evasion of the statute. The decision in Waters v. Comly, however, was not based entirely nor principally on that ground, but on another, in which the whole court concurred, and which was entirely beside any question of preference of creditors. This ground was the invalidity of a voluntary assignment executed by a debtor to a trustee of his own selection, without the privity or assent of his creditors, as against such creditors. On this subject the enunciations of the judge are harmonious and unequivocal. They all hold, in conformity with Garrard v. Lord Lauderdale, 3 Sim. 1, Bill v. Cureton, 2 Mylne & K. 503, and the line of cases announcing the same principle, that a deed of assignment operates merely as a power to the trustee, revocable by the debtor; that the character of cestui que trust never ex isted between the creditor and the trustee, but that the debtor himself was the only cestui que trust, having in him the whole beneficial interest; that the arrangement was one wholly for the convenience of the debtor; and that the creditors were without remedy against the nominal trustee, either at law or in equity. Such being the judgment of the highest court of this state, it is binding upon me, and, in my opinion, it clearly embraces the case of this assignment now under consideration.

"2. I cannot see that the matter is helped by the act of March 18, 1875. That act nowhere professes to declare what shall constitute a valid assignment, but only prescribes that, when a voluntary assignment is made, certain things must be done as therein: specified. Now, this must be construed to mean an assignment not prohibited by law, and which would otherwise be unimpeachable. That this must be the meaning is manifest from the phrase 'in trust for his creditors, or some of them.' Now, were the construction to be given that this act validated an assignment because its provisions were complied with, it is clear that such construction would repeal the statute prohibiting a preference of creditors by a debtor in contemplation of insolvency, for the act speaks expressly of a partial as well as of a general assignment, and of an assignment for the benefit of particular creditors, in exclusion of others. The statute must be read in the light of the purpose for which it was. enacted, to wit, the security afforded both to