in all other canals," on certain trusts, and gave his wife certain benefits under the will: Held, that the testator, not having any other shares in the Nottingham Canal, intended to dispose of those particular shares by his will, and that his widow was bound to elect. Shuttleworth v. Greaves, M. & C. 35. 5. (Construction-Substitution.) Under a trust to pay and apply all a testator's personal estate "unto and to the use of and equally between all and every his brothers and sisters, their respective executors, administrators and assigns, absolutely and for ever," it was held that the brothers and sisters living at the testator's death were entitled as a class, the words " executors, administrators and assigns" being descriptive only of the estate. S. C.

6. (Same.) Devise of real and personal estate to testator's wife for life, and after her decease to such of his children as should be then living, their heirs, executors, administrators and assigns, as tenants in common, with benefit of survivorship in case any died without issue under twenty-one, but in case any should happen to die leaving lawful issue, then such issue to take the parents' share Held, that the issue of a child who died in the lifetime of the wife were not entitled by substitution. Exp. Hunter, Y. & C. 610.

7. (Construction-Words of recommendation.) Testator gave all his property to his son, his heirs, executors, administrators and assigns, for his and their own use and benefit, "well knowing that he would discharge the trusts the testator reposed in him, by remembering his (the testator's) sons and daughters: " Held, that no trust was created, by reason of the vagueness of the words. Bardswell v. Bardswell, Sim. 319.

II. DIGEST OF AMERICAN CASES.

Selections from 14 Peters's Reports of cases in the Supreme Court of the United States.

ACTION. (Negotiable note.) A note to be paid "in the office notes of a bank" is not negotiable by the usage or custom of

merchants. Not being a promissory note by the law merchant, the statute of Anne, or the kindred acts of Assembly of Pennsylvania, it is not negotiable by indorsement; and not being under seal, is not assignable by the act of Assembly of Pennsylvania on that subject, relating to bonds. No suit could be brought upon it in the name of the endorser. The legal interest in the instrument continues in the person in whose favor it has been drawn, whatever equity another may have to claim the sum due on the same; and he only can be the party to a suit at law on the instrument. Irvine, for the use of the Lumberman's Bank at Warren, v. Lowry, 14 Peters, 293. 2. (By executor.) The declaration in an action by an executor, for the recovery of money received by the defendant, after the decease of the testator, may be in the name of the plaintiff, as executor, or in his own name, without stating that he is executor. The distinction is, that when an executor sues on a cause of action which occurred in the life-time of the testator, he must declare in the detinet, that is, in his representative capacity only; but when the cause of action occurs after the death of the testator, if the money when received will be assets, the executor may declare in his representative character, or in his own name. Kane's Adm. v. Paul, Ex. Coursault, 14 Peters,

33.

3. (Place of payment.) An action was instituted in the circuit court of Mississippi on a promissory note, dated at and payable in New York. The declaration omitted to state the place at which the note was payable, and that a demand of payment had been made at that place. Held, that to maintain an action against the drawer or indorser of a promissory note or bill of exchange, payable at a particular place, it is not necessary to aver in the declaration, that the note when due was presented at the place of payment, and was not paid; but the place of payment is a material part of the description of the note, and must be set out in the declaration.

Peters, 43.

Covington v. Comstock, 14

BOUNDARIES OF STATES. (Rules in controversies concern

ing.) In a case in which sovereign states, of the United States, are litigating a question of boundary between them, in the supreme court of the United States, the court have decided that the rules and practice of the court of chancery should, substantially, govern in conducting the suit to a final close. The State of Rhode Island v. The State of Massachusetts, 14 Peters, 210.

2. (Same.) In a controversy where two sovereign states are contesting the boundary between them, it is the duty of the court to mould the rules of chancery practice and pleading in such a manner as to bring the case to a final hearing on its merits. It is too important in its character, and the interests concerned too great, to be decided upon the mere technical principles of chancery pleadings. Ib.

3. (Same.) The state of Rhode Island, in a bill against the state of Massachusetts, for the settlement of the boundary between the states, had set forth certain facts on which she relied in support of the claim for the decision of the supreme court, that the boundary claimed by the state of Massachusetts was not the true line of division between the states, according to their respective charters. To this bill the state of Massachusetts put in a plea and answer, which the counsel for the state of Rhode Island deemed to be insufficient. On a question whether the plea and answer were insufficient, the court held that as, if the court proceeded to decide the case upon the plea, it must assume, without any proof on either side, that the facts stated in the plea are correctly stated, and incorrectly set forth in the bill, then it would be deciding the case upon such an issue as would strike out the very gist of the complainant's case, and exclude the facts upon which the whole equity is founded, if the complainant has any. The court held that it would be unjust to the complainant not to give an opportunity of being heard according to the real state of the case between the parties: and to shut out from consideration the many facts on which he relies to maintain his suit. Ib.

4. (Same.) The plea of the state of Massachusetts, after setting

forth various proceedings which preceded and followed the execution of certain agreements with Rhode Island, conducing to show the obligatory and conclusive effect of those agreements upon both states, as an accord and compromise of a disputed right, proceeded to aver that Massachusetts had occupied and exercised jurisdiction and sovereignty, according to the agree ment, to this present time; and then sets up as a defence, that the state of Massachusetts had occupied and exercised jurisdiction over the territory from that time up to the present. The defendants then plead the agreements of 1710 and 1718, and unmolested possession from that time, in bar to the whole bill of the complainant. The court held, that this plea is two-fold: 1. An accord and compromise of a disputed right. 2. Prescription, or an unmolested possession from the time of the agreement. These two defences are entirely distinct and separated; and depend upon different principles. Here are two defences in the same plea, contrary to the established rules of pleading. The accord and compromise, and the title by prescription, united in this plea, render it multifarious; and it ought to be overruled on this account. Ib.

CASES CERTIFIED FROM THE CIRCUIT COURT TO THE SUPREME COURT. (Division of opinion.) Action in the district court of the United States for the southern district of New York, by the United States against the defendant, for a penalty under the act of 1838, " to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam." A verdict was rendered for the United States, and without a judgment on the verdict, the case was, by consent, removed to the circuit court of the United States. In the circuit court certain questions were presented on the argument, and a statement was made of those questions, and they were certified, pro forma, at the request of the counsel for the parties, to the supreme court, for their decision. No difference of opinion was actually expressed by the judges of the circuit court. By the court: "The judgment or other proceedings on the verdict ought to have been entered in the dis

trict court; and it was altogether irregular to transfer the proceedings in that condition to the circuit court." The case was remanded to the circuit court. The United States v. Samuel B. Stone, 14 Peters, 524.

2. (Same.) In some cases, where the point arising is one of importance, the judges of the circuit court have sometimes, by consent, certified the point to the supreme court, as upon a division of opinion; when in truth they both rather seriously doubted, than differed about it. Those must be cases sanctioned by the judgment of one of the judges of the supreme court, in his circuit. Ib. CHANCERY AND CHANCERY PRACTICE. (Specific performance.) A decree for a specific performance of a contract to sell lands, refused, because a definite and certain contract was not made; and because the party who claimed the performance had failed to make it definite and certain on his part, by neglecting to communicate by the return of the mail conveying to him the proposition of the vendor, his acceptance of the terms offered. Carr v. Duval and another, 14 Peters, 77. 2. (Same.) If it be doubtful whether agreement has been concluded, or is a mere negotiation, chancery will not decree a specific performance. Ib.

3. (Party to injunction.) A bill for an injunction was filed, alleging that the parties who had obtained a judgment at law for the amount of a bill of exchange, of which the complainant was indorser, had before the suit was instituted obtained payment of the bill from a subsequent indorser, out of funds of the drawers of the bill obtained by the subsequent indorser, from one of the drawers. It was held, that it was not necessary to make the subsequent indorser, who was alleged to have made the pay. ment, a party to the injunction bill. Atkins v. Dick and Company, 14 Peters, 114.

4. (Practice.) By a rule of the supreme court, the practice of the English courts of chancery is the practice in the courts of equity of the United States. In England the party who puts in a plea, which is the subject of discussion, has the right to begin