"that the allowance of poundage is for the risk in curred," or "for the sheriff's trouble." If these expressions were used in the sense that the sheriff became entitled to poundage whenever he has incurred risk in the service of process, they are manifestly incorrect, for there are many decided cases where such risks have been incurred, and yet this right to poundage has been denied. Such, for instance, are the cases where the judgment has subsequently been modified or reversed, or where the execution has been set aside or reduced by the order of the court before collection. Impey on Sheriffs, 159; Campbell v. Cothran, supra; Miles v. Harris, supra; Evans v. Manero, supra. This is so also when the property is taken by a trustee in bankruptcy after levy and before sale. Ex parte Browning, 8 Ch. D. 596. Neither does he become entitled to poundage on a fi. fa. when the property taken thereon is destroyed by fire or other casualty. Campbell v. Cothran, supra. The application of such expressions must be limited to the circum stances of the cases in which they were used, and deemed as intending to convey the idea that under the particular statute then being construed the sheriff's right to fees became fixed by virtue of his levy, and the liability thereby incurred by him to the judgment creditor for damages arising out of a loss of property levied upon, or by the escape of the defendant from custody. Such expressions were undoubtedly used to convey an idea of the equitable considerations which induced the adoption of statutory provision's giving compensation to sheriffs, but they cannot operate to extend the class of cases in which fees are allowed beyond those authorized by the terms of the statute. While we would not be considered as depreciating in any degree the risk incurred by a sheriff in executing the processes of the court, yet the hazard of liability for damages upon an escape must be much diminished by the presumed irresponsibility of a defendant against whose property an execution must previously be issued and returned nulla bona before his body can be taken in execution. The condition and circumstances of the debtor may be given in evidence in mitigation of damages in an action upon the case against the sheriff to recover damages for an involuntary escape. Patterson v. Westervelt, 17 Wend. 543; Smith v. Knapp, 30 N. Y. 581; Metcalf v. Stryker, 31 id. 257; Macrae v. Clark, 1 H. & R. 479. It is otherwise however when the sheriff has made himself liable as bail under the provisions of the Code. Bensel v. Lynch, 44 N. Y. 162. However equitable the sheriff's claim may be for compensation whenever he incurs risks by executing process, it is an answer to any claim founded thereon to say that this is not the ground upon which the statute has awarded it. Although it is said in some cases that the taking of the body of a defendant in execution is in some sense a satisfaction of the judgment while the imprisonment continues, yet that consideration is not prominently urged here as a reason for reversing this judgment. But even if it were, the argument would be ineffectual, for an arrest on a body execution is now generally considered not to operate as a satisfaction of the judgment, but simply as a suspension for the time being of other remedies of the creditor thereon. Campbell v. Cothran, supra; Konig v. Steckel, 58 N. Y. 475; 2 R. S. 465, art. 2, title 5, ch. 6, part 3. It cannot in any just sense be said to be the equivalent of that collection of the moneys due upon a judgment which is required by the statute awarding fees to the sheriff for collecting an execution. The change made in the law by the adoption of the provisions of the Revised Statutes whereby the right of sheriffs to charge poundage upon executions was made to depend upon their collection, instead of upon their service, was in our judgment intended to change the conditions upon which the sheriff's right to collect fees was to be predicated. It would be difficult to find language more significant or which would seem to preclude more clearly any claim on the part of these officers to poundage, except upon the completed performance by them of the duties required in the enforcement of an execution. The right to fees which before depended upon the rendition of whatever services he might perform in the collection of an execution is thereby made to turn upon the performance by the sheriff of the final act to be done in the course of such service. The decision in the case of Bolton v. Lawrence, 9 Wend. 436, does not conflict with this view. The question in that case was whether the sheriff was entitled to poundage upon a fi. fa. which had been levied by him upon sufficient property to satisfy it, but where he had been prevented from making the amount of the execution by the act of the plaintiff in causing the judgment to be collected in another county upon another execution. The decision in this case accords with the rule as uniformly laid down in the cases arising both before and since the passage of the Revised Statutes. In Campbell v. Cothran this court, in giving a construction to the statute as applied to the writ of fi. fa., held that the sheriff was not entitled to poundage unless he collected the judgment, except in case the plaintiff interfered to prevent its collection; and we can see no reason why the principle laid down in that case is not equally applicable to cases arising upon the execution of the writ of ca. sa. It is by virtue of the same statute, and through the use of the same language, that the claim of a sheriff to fees arises upon an execution whether such execution goes against the property or the person of the defend aut. In It would seem necessarily to follow that the conditions which have been adjudicated as essential to his right to demand fees in one class of cases would apply with equal force to another, when the right to fees in both depends upon the same language. This right is made by the language of the statute to depend exclusively upon the collection of the money called for by the process; and we think no right to the statutory fees can arise in favor of the sheriff, except upon the collection of the execution, or the intervention of the plaintiff by the performance of some act which in law is deemed to be the equivalent of collection. Campbell v. Cothran, Andrews, J., said, after referring to a case holding that the sheriff is entitled to poundage after the levy of an execution, where the parties had settled or compromised the debt, that "this case and those falling directly within the same principle are, we think, the only exceptions to the rule that the sheriff is not entitled to poundage on a money execution until the money is collected, and that his commissions are to be reckoned on the sum realized on the execution, and not on the amount of the judgment." This decision accords with the settled law of England. Miles v. Harris, supra; Evans v. Manero, supra; Roe v. Hammond, 2 C. P. D. 300; Mortimore v. Cragg, 3 id. 216. In Roe v. Hammond it was held upon the ground that there had been no collection that the sheriff was not entitled to poundage upon a fi. fa. when he had levied upon goods sufficient to satisfy it, if the defendant after seizure paid out the execution before a sale. The decision in this case however was overruled in Mortimer v. Cragg in the Court of Appeals, decided in 1878, Brett, L. J., saying: "When an execution issues the transaction may be divided into four parts: 1. The delivery of the writ to the sheriff. 2. Seizure. 3. The numerous other enterprises, not objects of private concern purely. In Dawson County v. McNamar, 10 Neb. 276, in 1880, it was held that the building of a county court-house was not a work of internal improvement, under the act, and it was said that "works of internal improvement" meant "only those works within the State in which the whole body of the people are supposed to be more or less interested, and by which they may be benefited." In Township of Bur possible payment of money after seizure. 4. If no payment, sale. The first step does not entitle the sheriff to poundage, and if he does not seize, Nush v. Dickenson is an authority that he is not entitled to poundage. Although he seizes, nothing may be realized, because the seizure may be wrongful; it may be withdrawn by direction of law, then the sheriff would receive no poundage. Then comes the case of seizure. The money may be paid by the execution debtor, either directly or indirectly; directly by virtue of the seizure to the sher-lington v. Beasley, 94 U. S. 310, this court held that a iff; indirectly when payment is made by means of a compromise which is a consequence of the seizure. In either of those cases the sheriff is entitled to poundage," Bramwell, L. J., saying: "I think the words in the statute of Elizabeth shall so levy' mean 'shall seize and thereby get the money.'" The view that we have adopted of the statute was also taken by Mr. Justice Vau Brunt in the case of Bowe v. Campbell, 63 How. Pr. 167. The unreported case of Campbell v. Moers, cited upon appellant's brief, would seem from the statement there given to conflict somewhat with our construction of the statute. We have no information respecting the case except that derived from the brief of counsel, and while we entertain great respect for the opinion of the learned judge who wrote in the case, we cannot concur in the conclusions which he seems to have reached. Judgment affirmed. UNITED STATES SUPREME COURT ABSTRACT. MUNICIPAL BONDS-NEBRASKA STATUTES—“ WORK OF INTERNAL IMPROVEMENT"-ACTION ON BONDSVALIDITY OF ISSUE.-(1) Bonds issued by the county commissioners of a county in Nebraska, on behalf of a precinct in that county, to aid a company in improving the water-power of a river for the purpose of propelling public grist-mills, are issued to aid in constructing a "work of internal improvement," within the meaning of the Act of Nebraska, of February 15, 1869, as amended by the Act of March 3, 1870 (Laws of 1869, p. 92, and Laws of 1870, p. 15, and Gen. Stat. of 1873, ch. 35, p. 448). In Osborne v. County of Adams, 106 U. S. 181, this court decided, in November, 1882, that under the same statute that is in question here, bonds issued to aid in the construction of a steam grist-mill were not issued to aid in the construction of a work of internal improvement. There was a suggestion in the opinion in that case, that the statute did not cover the construction of any kind of grist-mill as a work of internal improvement. During the same term a petition for rehearing was filled, and the attention of the court was called to the case of Traver v. Merrick County, 14 Neb. 327, in which the Supreme Court of Nebraska had held at its January Term, 1883, that county bonds issued by county commissioners, under the act of 1869, as a loan to an individual to aid in building a public grist-mill and water power in the county, were valid. But this court adhered to its view that the act did not cover the construction of a steam grist-mill, and denied the rehearing. Osborne v. Adams County, 109 U. S. 1. In Union Pacific R. v. Commissioners, 4 Neb. 450, it was held in 1876, that a public wagon bridge, over the Platte river, as an extension of a public highway, was a work of internal improvement, under the act of 1869, being a work from the construction of which benefits were to be derived by the public. But the court said that no authority existed to aid a merely private enterprise. See also United States v. Dodge County, 110 U. S. 156. In the State v. Thorne, 9 Neb. 458, 460, in 1880, it was suggested that works of internal improvement, under the act, might include railroads, turnpikes, canals, and steam custom grist-mill, not on a water course or operated by water power, was a "work of internal improvement," within an act of Kansas authorizing municipal bonds in aid of "the construction of railroads or water power * * * or for other works of internal improvement." The decision was based, in part, on the ground that there was another act which declared "all water, steam or other mills, whose owners or occupiers grind or offer to grind grain for toll or pay, are hereby declared public mills," and provided for the order in which customers should be served, and prescribed the duties of the miller, and that the rates of toll should be posted; and as it would also be competent for the Legislature to regulate the toll, it was held that aid to the mill was aid of a public work of internal improvement. Enterprise of a class within which that in the present case falls are so far of a pub. lic nature that private property may be appropriated to carry them into effect. Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467; Commonwealth v. Essex Company, 13 Gray, 239, 249; Lowell v. Boston, Ill Mass. 454, 464; Scudder v. Trenton Delaware Falls Co., 1 Cax. Ch. 694; Beekman v. Saratoga & Schenectady R. Co., 3 Paige, 45. And when the Legislature has given to grist-mills and the water power connected with them such a public character as in the present case, the improvement of the water power must be regarded as a public work of internal improvement, which may be aided in its construction by the issue of bonds, under the act in question. (2) Although in such a bond and its coupons the precinct is the promisor, a suit to recover on such coupons is properly brought against the county. (3) Where such bonds purport, on their face, to be issued by the board of county commissioners, on behalf of the precinct, and are signed by the chairman of the board, and attested by its clerk, who is also the clerk of the county, and are sealed with the seal of the county, and the coupons are signed by such clerk, and the bonds refer to the coupons as annexed, the bonds and coupons are issued by the county commissioners. Blair v. County of Cuming. Opinion by Blatchford, J. [Decided April 21, 1884.] MONEY HAD AND RECEIVED-ASSUMPSIT-RATIFICA TION-PRESUMPTION AS то PAYMENT.-Whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. Pickard v. Bankes, 13 East, 20; Spratt v. Hobhouse,4 Bing. 178; Israel v. Douglass,1 Hen. Bla.239; Beardsley v.Root 11 Johns. 464; Hale v. Marston, 17 Mass. 575; Claflin v. Godfrey, 21 Pick. 1. The remedy at law is adequate and complete. A court sitting as a court of equity has no jurisdiction in such a case. Hipp v. Babin, 19 How. 271. If a principal ratifies that which favors nim, he ratifies the whole. Skinner v. Dayton, 19 Johns. 554; Odiorne v. Maxey, 13 Mass. 182; Menkins v. Watson, 27 Mo. 163; Small v. Atwood, 6 Cl. & F. 232. By the common law, the lapse of twenty years, without explanatory circumstances, affords a presumption of law that the debt is paid, even though it be due by specialty. Oswald v. Leigh, 1 Term. 270; Lewis v. Nones, 7 S. & R. 410; Jackson v. Wood, 12 Johns. 242; Best on Presump., § 137. This presumption is a rule of evidence and not a limitation, and is not subject to the exceptions and incidents of an act of limitation Cape Giraudeau v. Harbinson, 58 Mo. 90; Smith's Ex'r v. Benton, 15 id. 371. James v. Miller. Opinion by Woods, J. [Decided April 21, 1884.] son, 100 U. S. 617; Walton v. Crowley, 3 Blatchf. 440; Congress & Empire Spring Co. v. High Rock Congress Spring Co., 57 Barb. 426; 4 Am. L. T. Rep. 167; Dixon Crucible Co. v. Guggenheim, 2 Brewst. 321. For a trade-mark to pass under a bill of sale it is not necessary that it should be specifically mentioned. In Shipwright v. Clements, 19 Week. Rep. 599, there was a sale by one partner to the other of all his interest in the partnership, stock in trade, goods, chattels and effects, UNITED STATES CIRCUIT AND DISTRICT book debts, moneys in the bank, and all other property COURT ABSTRACT.* INTERNAL REVENUE-GRAIN-BAGS-RE-ENTRY FREE OF DUTY-POWERS OF SECRETARY.-The customs and revenue laws provide that "grain bags, the manufacture of the United States, when exported filled with American products, may be returned to the United States free of duty under such rules and regulations as shall be prescribed by the secretary of the treasury." Grain bags manufactured in this country from imported materials were exported full of California wheat. The exporter demanded and received, according to law, out of the public treasury, the draw-back due him on account of the duty formerly collected upon the materials of which the bags were made. Upon the return of the grain bags, held, that they were entitled to pass free of duty. The power of the secretary to prescribe rules and regulations does not authorize him to impose a duty not provided for by Congress in repayment of the drawback. Morrill v. Jones, 106 U. S. 466; 1 Sup. Ct. Rep. 423; Merritt v. Welsh, 104 U. S. 702; Balfour v. Sullivan, 8 Sawy. 648; 17 Fed. Rep. 231. Cir. Ct., Dist. Cal. March 10, 1884. Balfour v. Sullivan. Opinion by Sawyer, J. REMOVAL OF CAUSE-FEDERAL LAW INVOLVED-SEPARATE CONTROVERSY.-(1) A case may be removed to the Federal courts whenever rights of the parties are alleged to depend in any way upon an act of Congress, even though the act is only set up by way of defense, and though other questions not of a Federal character enter into the controversy. If a Federal law is to any extent an ingredient of the controversy by way of claim or defense, the condi ion exists upon which the right of removal depends, and he right is not impaired because other questions are involved which are not of a Federal character. Cruikshank v. Fourth Nat. Bank, 16 Fed Rep. 888; Mayor v. Cooper, 6 Wall. 247-252; Railroad Co. v. Mississippi, 102 U. S. 135. The motion to remand is denied. (2) The defendant, the Baltimore and Ohio Telegraph Company, has also removed the suit upon its separate petition, alleging that there is a controversy which is wholly between it and the camplainant citizens of different States. Within the recent decision of this court in Boyd v. Gill, 19 Fed. Rep. 145, such a separate controversy is not disclosed by the pleadings. See also Peterson v. Chapman, 13 Blatchf. 395. Cir. Ct., S. D. N. Y. March 6, 1884. Western Union Tel. Co. v. National Tel. Co. Opinion by Wallace, J. TRADEMARK-PASSES WITH TRANSFER OF BUSINESS. -There is no reason why a trade-mark cannot be couveyed with the property with which it is associated. As an abstract right, apart from the article manufactured, a trade-mark cannot be sold, the reason being that such transfer would be productive of fraud upon the public. In this respect it differs from a patent or a copyright. But in connection with the article produced, it may be bought and sold like other property. It constitutes a part of partnership assets, and is properly sold with the firm property. Browne Trade M., §§ 360, 361; Hall v. Barrows, 10 Jur. (N. S.) 55; Ainsworth v. Walmsley, 35 Law J. Ch. 352; Kidd v. John *19 Fed. Rep. not being on the premises, the defendant covenanting that he would not carry on the trade within one mile of the premises, or in any way affect the business to be thereafter carried on by the purchaser. The court held that this was a sale of the business, and that a trade-mark passed under such a sale whether specially mentioned or not. If a trade-mark is an asset, as it is, there is no reason why it should not pass under the term assets in an instrument which conveys the entire partnership property. Cir. Ct., R. I. Feb. 12, 1884. Morgan v. Rogers. Opinion by Colt, J. [See 22 Am. Rep. 44; 62 How. Pr. 216; 47 id. 532; 84 N. Y. 499; 45 Am. Rep. 198; 111 Mass. 238; 5 Sawy. 584.-ED. SHIP AND SHIPPING--PILOT-WHEN NOT ENTITLED TO SALVAGE-Oregon PILOT ACT, 1882.-The libellant in a smooth sea and calm weather boarded the Bryant in a thick fog while she lay aground at low tide on the outer edge of the middle sand of the Columbia river, and at the next flood sailed her over into deep water in the south channel, and after drifting out to sea in the night brought her into port the next morning. Held, that the service of the libellant did not involve any "extraordinary danger or risk," and that he was only entitled to a pilot's compensation therefor. Under the Oregon pilot act of 1882 (Sess. Laws, 15) a pilot is bound to render aid to a vessel "in stress of weather or in case of disaster," and he is not entitled to salvage for such service unless he is thereby involved in "extraordinary danger and risk." The drift of American legislation and decision is against the policy of allowing pilots to act as salvors on their own pilot grounds. It has been thought or found that the temptation to become a salvor might induce a pilot to make or allow an occasion for such service that he might profit by the distress of the ship which he is bound to navigate. Hobart v. Drogan, 10 Pet. 120; The Wave, 2 Paine, 136; 2 Pars. Ship. & Adm. 271. A pilot is a public offi cer whose duties and compensation are prescribed by law; and when acting in the line of his duty he is not entitled to any other compensation. As was said by Mr. Justice Washington in the case of Le Tigre, 3 Wash. C. C. 571, while considering the question whether official duty could be compensated by salvage: "Of this class of cases is that of the pilot who safely conducts into port a vessel in distress at sea. He acts in the performance of an ordinary duty imposed upon him by the law and the nature of his employment, and he is therefore not entitled to salvage, unless in a case where he goes beyond the ordinary duties attached to his employment." Dist. Ct., Dist. Oreg. March, 1884. The C. D. Bryant. Opinion by Deady, J. INJUNCTION VIOLATION-CONTEMPT.-To sustain a motion for contempt on account of the violation of an injunction issued to restrain the infringement of a patent, it must appear clearly and indisputably that the infringement continues. Walk. Pat. 481; Birdsall v. Hagerstown Manuf. Co., 2 Ban. & A. 519; Liddle v. Cory, 7 Blatchf. 1; Welling v. Trimming Co., 2 Ban. & A. 1; Bate Refrig. Co. v. Eastman, 11 Fed. Rep. 902. Cir. Ct., D. R. I., Feb. 9, 1884. Smith v. Halkyard. Opinion by Colt, J. BANKRUPTCY-FRAUDULENT CONVEYANCES-JUDGMENT PRIORITIES ASSIGNEE.-(1) A judgment recov ered, defendant having meantime made a fraudulent conveyance of his property, is deemed to have attached at the date of its rendition as if the fraudulent conveyance had never been made. (2) Under the statutes of Indiana a judgment against a fraudulent grantor is made a lien, and accordingly he who obtains the first judgment is first in diligence, and except as against innocent purchasers of the fraudulent grantee, first in right. See Hardy v. Mitchell, 67 Ind. 485; Hanna v. Aebker, 84 id. 411. (3) But this rule is subject to the priorities, respectively, of partnership and individual creditors in and to partnership and individual property. Hardy v. Mitchell, supra; Weyer v. Thornburgh, 15 Ind. 125; Dean v. Phillips, 17 id. 406; Bond v. Nave, 62 id. 505; Nat. Bank v. Locke, 89 id. 428; Freem. Judgm., §§ 356, 357; Glidewell v. Spaugh, 26 Ind. 319; Jones v. Rhoads, 74 id. 510; Huff man v. Copeland, 86 id. 224, and cases cited. (4) But however this may be, I think it quite clear that the doctrine proposed cannot apply when the fraudulent conveyance has been annulled at the instance of the assignee in bankruptcy of the fraudulent grantor. By express provision of the bankrupt law, all property of the bankrupt, conveyed in fraud of his creditors is, by virtue of the adjudication, and by the appointment of an assignee, vested in the assignee, to whom also the power and authority are given "to manage, dispose of, sue for, and recover all his property or estate, real or personal, debts or effects, and to defend all suits at law or in equity pending against the bankrupt." 14 St. 525. Accordingly it has been held, and is well settled, that after the appointment of an assignee in bankruptcy, an action by a creditor to set aside a fraudulent conveyance of the bankrupt or to reach, in any way, property fraudulently transferred, cannot be maintained, and that the remedy must be had in a suit or action by or in the name of the assignee. Glenny v. Langdon, 98 U. S. 20; Trimble v. Woodhead, 102 id. 647; Moyer v. Dewey,103 id.301. Dist. Ct., D. Ind., 1884. Matter of Lowe. Opinion by Woods, J. SURETY ALTERATION- DISCHARGE — WHEN STATUTE TAKES EFFECT-ASSESSMENT.--When after a boud had been signed by two sureties with the understanding between them and the obligor and obligee that it was to be signed by a third surety whose name was written in the bond, the name of the third surety was altered in the body of the instrument, with the knowledge of the obligee, by the substitution of a different surety, who then signed the bond, held that the two sureties were discharged. There is a class of cases in which it is held that a bond, perfect on its face, apparently duly executed by all whose names appear thereto, purporting to be signed and delivered, and actually delivered without a stipulation, cannot be avoided by the sureties upon the ground that they signed it on a condition that it should not be delivered unless it was executed by other persons who did not execute it, where it appears that the obligee had no notice of such condition, and there was nothing to put him upon inquiry as to the manner of its execution, and that he had been induced upon the faith of such bond to act to his own prejudice. Dair v. United States, 16 Wall. 1; Tidball v. Hailey, 48 Cal. 610; State v. Peck, 58 Me. 284; Cutler v. Roberts, 7 Neb. 4; Nash v. Fugate, 24 Grat. 202; Millett v. Parker, 2 Metc. (Ky.; 608; State ex rel. v. Pepper, 31 Ind. 76. Then there are other cases in which it has been decided that if a bond be written as if to be executed by two or three or more sureties, and it is in fact executed by only one, and is then delivered to the obligee, it is valid and effectual against that one. Cutter v. Whittemore, 10 Mass. 442. See also Russell v. Freer, 56 N. Y. 67. In Smith v. United States, 2 Wall. 219, Mr. Justice Clifford states the rule to be that any variation in the agreement to which the surety has subscribed, which is made without the surety's knowledge or consent, and which may prejudice him, or which may amount to a substitution of a new agreement for the one he has subscribed, will discharge the surety, upon the principle of the maxim non hæc in fœdera veni. And of this case it may be observed that in its facts and upon the law it is highly instructive as bearing upon the kindred question involved in the case at bar. (2) A statute took effect March 3d, changing the rate of duty upon spirituous liquors from 70 cents to 90 cents. An assessment was made for a period previous to and including March 3d at 70 cents. Held, that though the statute was in force during the whole of March 3d, so that the rate for that day should have been 90 cents, the tax-payer could not on that account dispute the validity of the assessment. Arnold v. United States, 9 Cranch, 104; In re Welman, 20 Vt. 653; In re Howes, 21 id. 619. Cir. Ct.,E. D. Wis., Feb. 5,1884. United States v. O'Neill. Opinion by Dyer, J. IOWA SUPREME COURT ABSTRACT. GRANTEE MISNAMED - REFORMATION EVI DEED DENCEMUST BE CLEAR.-Where property is conveyed to a married woman, and by fraud or mistake her husband is named as grantee, equity will reform the instrument to express the true agreement of the contracting parties upon clear and satisfactory proof. The case like Nowlin v. Pyne, 47 Iowa, 293. The parties made a contract, employed a scrivener, and the scrivener by mistake failed to express the contract in apt words and terms. It appears that he used the words he intended to use, and he thought he should name the wife first as a grantee, to show that she owned the land. In such cases equity will reform the writing, making it conform to the agreement previously entered into between the parties. Nowlin v. Pyne, supra, Stafford v. Fetters, 55 Iowa, 484; S. C., 8 N. W. Rep. 322; Reed v. Root, 59 Iowa, 359; S. C., 13 N. W. Rep. 323. We need not set out or discuss the evidence in detail. It is enough to say, that regard being had to the well-established rule that the proof necessary to reform a written instrument must be clear, satisfactory, and conclusive, we think the decree of the District Court is correct. Courtright v. Courtright. Opinion by Rothrock, C. J. [Decided April 24, 1884.] CORPORATION OFFICERS SELLING STOCK BELOW PAR-FRAUD ON STOCKHOLDERS.-The officers of a corporation cannot properly sell the stock for less than the par value. To enable a stockholder to recover from a corporation for the depreciation of his stock by mismanagement, he must show that the injury was peculiar to himself alone, as apart from the other stockholders, and an instruction to a jury to this effect is correct. In Green's Brice's Ultra Vires, 143, note, it is said: "The sale of stock in a corporation by the directors at a less rate than the price fixed in the charter is a fraud upon the law and the stockholders," citing Sturges v. Stetson, 1 Biss. 246; Fosdick v. Sturges, id. 255; Mann v. Cooke, 20 Conn. 188; Fisk v. Chicago, 568; Neuse River Nav. Co. v. Comrs., 7 Jones Law, R. I. & P. R. Co., 53 Barb. 513; O'Brien v. Same, id. 275. See also Osgood v. King, 42 Iowa, 478. Oliphant v. Woodbury Coal and Mining Co. Opinion by Adams, J. [Decided April 23, 1884.] MASTER AND SERVANT-"USUAL RISKS "-KNOWLEDGE OF SERVANT MACHINERY. -An employee, by remaining in the service of his employer without objection, assumes the risk of such dangers as are occas ioned by defects in the machinery, about which he is employed, of which he has knowledge, or by the exercise of reasonable diligence might gain knowledge, Money v. Lower Vein Coal Co.,55 Iowa, 671; S. C., 8 N. W. Rep. 652; Way v. Railroad Co., 40 Iowa, 341; Muldowney v. Railroad Co., 39 id. 615; Kroy v. Railroad Co., 32 id. 357; Greenleaf v. Railroad Co., 29 id. 14. But when the employee is not engaged to work with the machinery he is not bound by this rule. An employer is bound to provide machinery suitable and reasonably safe for the business, and to operate it in a reasonably safe and careful manner, and the existence of a defect imposes a duty of greater care and diligence. Moran v. Harris. Opinion by Reed, J. [Decided April 24, 1884.] LIEN-LIVERY-STABLE KEEPER-EXTENDS EMPT PROPERTY - - FORFEITURE TO EXBAILEE'S USE OF PROPERTY. In this case there was evidence showing that the property was exempt from execution. The plaintiff contends that a livery-stable keeper's lien cannot attach upon such property. It may be conceded that the lien can be enforced only by execution. But the statute which gives the lien does not except exempt property, but expressly gives the lien upon all property coming into the livery-stable keeper's hands. We do not wish to be understood as holding that the rule would be different if the right to a lien existed simply by common law. An innkeeper's lien exists by common law, and it was held in Swan v. Bournes, 47 Iowa, 502, that it attached upon exempt property. But the plaintiff contends that even if the defendant had a lien he lost it by claiming a lien for a general balance of account and for indebtedness for which he had no lien. The balance claimed was $316.22, which included something for keeping other horses, and something, we think, for keeping the horse in question for which he had no lien. What the rule would be if the plaintiff had tendered the amount for which the defendant had a lien, and the defendant had refused to surrender the horse, we need not determine. It seems to have been held that where a person who has a lien upon property sets up a claim to it distinct from and independent of his lien, he will be deemed to have waived his lien. Perhaps too he would be deemed to have waived or forfeited it by wrongfully claiming a lien for a larger indebtedness than that for which he had a lien, if he failed to disclose the true amount; and the same could not be presumed to be within the knowledge of the debtor so that he could tender the true amount for which the lien was held. Thatcher v. Harlan, 2 Houst. (Del.) 178. See also in this connection, Winter v. Coit, 7 N. Y. 288; Hanna v. Phelps, 7 Ind. 23; Judah v. Kemp, 2 Johns. Cas. 411; Holbrook v. Wright, 24 Wend. 176; Mexal v. Dear born, 12 Gray, 326. But we see nothing in the case at bar to hinder the plaintiff from discovering the true amount for which the defendant had a lien so as to enable him to make a tender of that amount if he desired. Where a bailee treats the thing bailed as his own, he cannot afterward claim a lien upon the same thing, but he may always use it so far as is necessary to for its preservation. This is implied in the very contract of bailment. But in the case at bar there was evidence showing an express direction to that effect. Munson v. Porter. Opinion by Adams, J. [Decided April 25, 1884.] WISCONSIN SUPREME COURT ABSTRACT. STATUTE OF FRAUDS-CONTRACT VOID-PAYMENT MADE ON MAY BE RECOVERED.-Where the plaintiff has received money from certain third parties, and pays the same over to the defendant on a parol con tract for the purchase of land, such payment is made upon a void contract, and the plaintiff can recover the same of the defendant, even though the defendant does not refuse to go on with the contract on his part; nor can the defendant urge in defense of an action for such money that the plaintiff obtained it through fraud from the third parties. Brandeis v. Newstadtl, 13 Wis. 142; Thomas v. Sowards, 25 Wis. 631; Hooker v. Knab, 26 id. 511; N. W. U. P. Co. v. Shaw, 37 id. 655; Clark v. Davidson, 53 id. 317; 10 N. W. Rep. 384. Tucker v. Grove. Opinion by Taylor, J. [Decided April 8, 1884.] MUNICIPAL CORPORATION-DEFECTIVE BRIDGE-NOTICE OF CLAIM-COMPLAINT MUST ALLEGE NOTICE.-In an action against a town for damages from a defective bridge in a public highway, a complaint which does not allege that the notice provided by section 1339, Revised Statutes, 1878, was given to the supervisors, fails to state a cause of action against the town, and a demurrer to it for that reason will be sustained. In order that the plaintiff may recover damages, he inust also allege in his complaint that a claim for damages was filed with the town clerk, as provided by section 824 Revised Statutes 1878. Susenguth v. Town of Rantoul, 48 Wis. 334; 4 N. W. Rep. 328; Plum v. Fond du Lac, 51 Wis. 393; 8 N. W. Rep. 283; Benware v. Town of Pine Valley, 53 Wis. 527; 10 N. W. Rep. 695. These cases are conclusive as to the insufficiency of the complaint. Wentwort v. Town of Summit. Opinion by Taylor, J. [Decided April 8, 1884.] TENDER-MUST BE UNCONDITIONAL.-An offer of payment, to constitute a tender, must be understood as a tender, absolute and unconditional; and to treat an offer of payment conditional upon a discharge from the whole debt, as a tender, is a fatal error. 2 Greenl. Ev., § 602, et seq. The alleged tender in Hunter v. Warner, 1 Wis. 141, was, Warner said he had the money, and it should be paid when due; that he was ready to pay," etc. It was held no valid tender. "An offer with the understanding that it shall be accepted for the whole claim or the disputed claim is not a good tender in law." Latham v. Hartford, 27 Kan. 249. "A tender is not good accompanied with a demand for a discharge of the whole debt." Richardson v. Boston C. Laboratory, 9 Metc. 42. "I showed him $500, and told him he could have it for his claim." This was held conditional, and a mere offer of payment, and unavailing as a tender. Tompkins v. Batie, 11 Neb. 147; 7 N. W. Rep. 747. "An offer to pay to satisfy the whole debt," was held no tender in law, in Thomas v. Evans, 10 East, 101; and to the same effect are Glasscott v. Day, 5 Esp. 48; Lancashire v. Kellingworth, 2 Salk. 623; Clark v. Mayor, etc., 1 Keyes, 9; Thayer v. Brackett, 12 Mass. 450. Elderkin v. Fellows. Opinion by Orton, J. [See 5 Am. Rep. 292; 23 id. 668. -ED.] [Decided April 8, 1884.] MINNESOTA SUPREME COURT ABSTRACT. GIFT-FIDUCIARY RELATION - UNDUE INFLUENCE PRESUMED-ONUS ON DONEE TO REBUT-EQUITABLE JURISDICTION.-Upon grounds of public policy, or as it is otherwise expressed, of public utility, equity exercises a salutary jurisdiction in setting aside donations of property made to a donee who stands in some confidential or fiduciary relation to the donor. The relief granted in such cases rests upon a general principle applicable to all relations in which dominion is exercised by one person over another. Dent v. Bennett, 4 Mylne & C. 277; 1 Story Eq. Jur., §§ 307, 308; Rockafellow v. Newcomb, 57 Ill. 186. The confiden |