SUNDAY. The publication of a sheriff's notice of sale in a Sunday newspaper is invalid. Shaw v. Williams (87 Ind. 158), 756.—It is lawful for a railway company to run trains for passengers, mails and express freight, on Sunday. It is a "work of necessity." Commonwealth v. Louisville and Nashville Railroad Company (80 Ky. 291), 475. TELEGRAPH COMPANY. - A telegraph company cannot by contract evade a penal statutory liability for failure to transmit a message correctly. Western Union Telegraph Company v. Adams (89 Ind. 598), WATER AND WATER-COURSE. The owner of a saw-mill upon a stream has no right to suffer sawdust or other refuse from the mill to fall into the stream, to the injury of a lower proprietor, although there is no other way of disposing thereof, without rendering the mill useless, and it is the custom so to dispose thereof, unless it also appears that the mill could not have been constructed so as to avoid the necessity. Red River Roller Mills v. Wright (30 Minn. 249), 194. WIDOW. - The right of a widow to dissent from a provision made for her in her husband's will in lieu of dower is personal, and if she is insane her right is defeated. Crenshaw v. Carpenter (69 Ala. 572), 539. WILL. A will consisting in a printed form with the blanks filled in the testator's handwriting is not an olographic will, and no part of it can stand. Estate of Rand (61 Cal. 468), 555. INJUNCTION IN SUMMARY PROCEEDINGS. 1. As to the application for removal of a tenant. The landlord or lessor of the demised premises may make application for the removal of a person from real property, to the court designated by the statute. (Code of Civil Procedure, § 2234, as amended by laws of 1881, ch. 122.), i. e., either to the county judge; justice of the peace; mayor or recorder of the city; District Court of the district within which the property is situated; police justice; justice of the justices' county; city judge; or municipal court; according to the place or locality. If the premises embrace parts of two or more towns, the application can be made to the proper court in either town. The petition on which the application is to be made should be prepared with accuracy, stating all facts, jurisdictional and material. Campbell v. Mallory, 22 How. Pr. 183; Powers v. Witty, 42 id. 352, and be verified substantially as a pleading. Bowghen v. Nolan, 53 How. Pr. 485. A final order refusing the delivery of possession of premises may before the warrant is issued be stayed, as well as the execution for costs, upon the tenant paying the rent or giving an undertaking to pay the same within ten days; or as prescribed in subdivisions 2 and 3 of section 2254, by executing a satisfactory undertaking for its payment. 2. When will an injunction be granted to stay the execution of the warrant? The question as to when and under what circumstances an injunction will be granted and sustained by the court, to prevent the issuing of a warrant in summary proceedings, is not an interesting one only to the profession, but to landlords and tenants generally. The Code of Civil Procedure, sections 2260 to 2265, inclusive, presents a comprehensive and adequate scheme, with specific regulations governing the course of action, the method of review, and the limitations and conditions under which an injunction will lie to stay the warrant in such cases. A fair and reasonable interpretation of the intent and meaning of § 2265, as to injunctions in such proceedings, seems to be, that before or after the final order awarding possession of the premises to the landlord, the tenant may in an action brought against the petitioner (i. e. the landlord), be entitled to an injunction to stay the issuing of the warrant if he show such cause as would justify the granting of an injunction order in an action of ejectment. We have to consider then in what cases or under what circumstances in an ejectment action such order would be granted. On general principles an injunction order will be issued and sustained where there is shown to exist an equitable defense. Hilliard on Injunction (3d ed. 660), § 4, as in ejectment cases, where the petitioner's title to the premises had terminated; where the tenant has acquired some interest or equity in the property subsequent to his occupation; where the justice before whom the summary proceedings were had did not have jurisdiction of the subject-matter; where there was fraud or collusion in obtaining the judgment known to the petitioner; or where from peculiar circumstances the tenant was unable to avail himself of his defense before the justice; and where there is a strong case of fraud or surprise shown. It was held in Sherman v. Wright, 49 N. Y. 227, 232, Allen, J., that an injunction would be granted in summary proceedings where the justice had not jurisdiction-the same being coram non judice-or where they were fraudulent or collusive. And the old Court of Chancery allowed a stay by injunction, where the tenant had an equitable right to retain possession of the premises, and where the justice could not give him the benefit of it in the proceedings before him. Judge Monell, in McIntyre v. Hernandez, 7 Abb. Pr. N. S. 214, observed that he never knew a case where the plaintiff had a legal defense to the proceedings and interposed it and was defeated, that the court would interfere. The following authorities will be found of interest to those who desire to make a more thorough investigation of this general subject: Valloton v. Seignett, 2 Abb. Pr. 121; Ward v. Kelsey, 14 id. 106; Roberts v. Mathews, 18 id. 199; Bokee v. Hamersley, 16 How. Pr. 461; Griffith v. Brown, 28 id. 2, 4; Reed v. St. John, 2 Daly, 213, 437; Duigan v. Hogan, 1 Bosw. 645; Graham v. James, 7 Robt. 468; Jackson v. Styles, 3 Wend. 49; Knox v. McDonald, 25 Hun, 268; Landon v. Supervisors, 24 id. 75; Jessurun v. Mackie, id. 624, 627; Brown v. Met. Gas L. Co., 38 How. Pr. 133; Chadwick v. Sprague, 1 N. Y. Civil Pro. 422; Broadwell v. Holcombe, 4 id. 159. In the case of Lynde v. Noble, 20 Johns. 82, decided in 1822, it was in effect held, that the court to which certiorari was brought should not stay the proceedings to await the decision upon the certioruri; and the Revised Statutes (§ 47, vol. 2, p. 516,) provided that the proceedings on any such application "shall not be stayed or suspended by such writ of certiorari, or any other writ or order of any court or officer." The cases James v. Stuyvesant, 3 Sand. 665 n., is directly in point under the statutes. Where the tenant was in possession at the termination of the lease, as in Graham v. James, supra, it was held that he could not in a summary proceeding before a magistrate "to to the landlord and to the tenant class; and every lawyer knows how unavailable and often worthless security of that kind proves to be, generally involving a long and troublesome litigation to recover and gain what?-"a barren sceptre." So the law-makers wisely incorporated that exception and further provided (in section 2263) that if the final order be reversed on the appeal the court may award restitution to the party injured, with right to maintain an action for the recovery of damages sustained thereby. But if the tenant's term actually expired before the judgment of reversal is obtained, as held in some cases, restitution should not be awarded. On this and collateral points, see Chretien v. Doney, 1 N. Y. 420; People v. Matthews, 38 id. 451; Hayden v. The Florence Machine Co., 54 id. 221; People ex rel. Livermore v. Hamilton, 39 id. 107; Eten v. Luyster, 60 id. 451; Wolcott v. Schenck, 16 How. Pr. 449; People v. Lockwood, 3 Hun, 304; People v. Hamilton, 15 Abb. Pr. 328. evict him as holding over after the expiration of his term, avail himself of the fact that he was equitably entitled to a new and further lease from his landlord;" the plea was not within the jurisdiction of the magistrate. Forrester v. Wilson, 1 Duer, 624. Authorities seem to concur in this that for an evil under color of legal proceedings which has no other remedy, an injunction is the proper order; and where the tenant has acted in good faith, and summary proceedings did not afford him adequate relief, and equities are shown to exist, an injunction will be granted. But on the other hand the weight of authorities agree that where the tenant has a complete remedy at law, adequate to the emergencies of the case; or where he has interposed a legal defense and failed in it; or omitted to set it up when he had the right to do so, an injunction order will not be sustained; nor will it be where the injunction proceeding is clearly an attempt to have the action of the justice reviewed. Armstrong v. Cummings, 20 How. 313; Broadwell v. Holcombe, supra; nor where the issues raised in the action by the tenant could have been considered and determined by the magistrate. Bean v. Pettengill, 2 Abb. Pr. (N. S.) 58, nor can any one who is not a party to the proceeding have an injunction simply upon showing that he may have his possession to the premises disturbed: Aaron ▼. Baum, 7 Robt. 340; Marry v. James, 37 How. Pr. 52; Grissler v. Stuyvesant, 67 Barb. 77; Seeback v. Mction as to the city of New York, contained in section Donald, 11 Abb. Pr. 95; nor where there is an adequate remedy by appeal, will an injunction be granted, Armstrong v. Cummings, supra; Wordsworth v. Lyon, 5 How. Pr. 463. In cases where the magistrate had no jurisdiction a writ of prohibition has been resorted to. See Ward v. Kelsey, supra; People ex rel. Smith v. Russel, 19 Abb. 136; People ex rel. Higgins v. McAdam, 58 How. 442. But in the case People ex rel. Cook v. Parker, 1 Civ. Proc. 446, Larrimore, J., observes that while a writ of prohibition lies to restrain a judicial tribunal from exercising jurisdiction in matters not within its cognizance as well as those in excess of it, it was never intended that this remedy should be used as a meaus of interfering with the orderly practice of the courts, or as a method to stay summary proceedings. See Thompson v. Tracy, 60 N. Y. 31; People ex rel. Best v. Steenburgh, 9 Alb. L. J. 411. In Chadwick v. Sprague, supra, Rumsey, J., observes: "If the justice goes beyond his jurisdiction, either in taking cognizance of the proceeding or while he is acting in it, this court might doubtless restrain; so it might, I think, if it appeared that the tenant had equities which the justice could not protect." The most recent cases and those giving a clear exposition of the law arising under section 2265, are Jessurun v. Mackie; Knox v. McDonald, supra; Chadwick v. Sprague, supra, and Bradwell v. Holcombe, supra. 3. As to appeal and stay of the warrant. While the right of appeal remains intact, and whicn may be availed of and taken from a final order, under section 2262 of the Code of Civil Procedure, awarding delivery of possession to the petitioner, and a stay thereon had upon security being given as required to perfect the appeal, an exception in that regard is made as to the "city and county of New York." This exception is wise and proper for obvious reasons. The laudlord class in that city are so extensive and the values of property so enormous that very large damage immediately attaches in case default is made in payment of rent; and if the property owner there were subjected to the further uncertainty, precariousness and delay in being deprived of possession of his premises by reason of a stay on appeal upon security being given, there would be vast injury wrought, both The above cases also substantially hold, and in Broadwell v. Holcombe, 4 N. Y. Civil Pro. R., it is directly held that if there is any error committed in the proceedings before the justice, or in his decision on any given legal question, the same can only be corrected by appeal, i. e., where no equities are shown. Where the tenant has a remedy at law which is adequate, equity will not interfere. Besides the excep 2262, the law-makers incorporated another one applicable to that city (see Laws 1882, ch. 303), to the effect that no monthly tenant shall be removed from any premises on the ground of holding over his term (except where the same expires on the first of May), unless five days before the expiration of the term, the landlord cause notice to be served on the tenant that if he does not remove as required thereby summary proceedings will be taken; and section 2238, prescribes the manner of the service of such notice. An appeal from a final order in summary proceedings from either of the District Courts of New York city must be taken to the Court of Common Pleas within the time prescribed, section 3213; from a county judge's order the appeal must be to the Supreme Court, sections 1340, 1357; and an appeal may be taken from the General Term of the Common Pleas; or from any other superior city courts of record, if such court by an order consent, to the Court of Appeals, section 2261. When from a final order of the parties of the justice of the justices' court in Buffalo, it must be to the Superior Court of that city, section 3045; in the city of Brooklyn from the justice's court to the county court, section 3045; in Rochester which "is deemed a town of Monroe county," the appeal is to the county court from the municipal court, sections 3226-3045 et seq.; in Albany and Troy, the appeal is to the county court of the county wherein the court is located, section 3213; in towns and villages to the county court, section 3045 et seq.; in Yonkers, where less than $200 is demanded, the appeal is to the county court, but if the recovery be for that sum or more, then the appeal must be to the Supreme Court; see Laws 1878, p. 232, § 56, subd. 1. There can be but one appeal by the tenant and under tenant. People v. Gildersleeve, 6 Weekly Dig. 460. As to the time within which the justice must render his decision in summary proceedings, Smith, P. J., in People ex rel. White v. Loomis, 27 Hun, 330, Fourth Department, June Term, 1882, observes that the provision, 2 R. S. 247, § 124; Laws 1849, ch. 193, § 5, subd. 1, giving the justice "four days" after the submision of the cause to him, to render his final decision in certain cases, is applicable to these proceedings before a justice. The several authorities cited and the suggestions given above may in some degree, we trust, aid the practitioner, give him a "lift" in his researches after the law as it is in the class of cases mentioned, and if so, I shall be satisfied. NEW YORK CITY. JOHN F. BAKER. SLEEPING CAR COMPANY-DUTY TO PRO- PENNSYLVANIA SUPREME COURT, NOVEMBER 12, 1883. PULLMAN PALACE CAR COMPANY v. GARDNER. A sleeping car company is bound to use reasonable aud ordinary care to protect the property of its passengers, and whether such care has been exercised is a question of fact. Where the watchman is absent from his post only a very few minutes, and during that time the property of a passenger is stolen, the company is liable if the jury find that the theft would not have occurred if the watchman had been at his post. H. W. Wier, for plaintiff in error. W. F. McCook, contra. ER RROR to the Court of Common Pleas No. 1 of Allegheny county. Action on the case to recover damages for the loss of a gold watch and some fifty dollars in money resulting from the alleged negligence of the defendant company, in not exercising proper care in the protection of plaintiff and his effects while occupying a berth in a Pullman car between Philadelphia and Pittsburgh. On April 8, 1881, plaintiff purchased a ticket from the company at Philadelphia which secured him an upper berth in a sleeping coach leaving Philadelphia on the 11:30 P. M. train. There were on this train two sleepers in charge of five employees, the usual number, and consisting of a conductor, one cook and three porters. have already heard intimated, is in many respects a new one and it gives some indication of how, with the improvements of the age, new questions arise for courts to settle. When suits for losses in sleeping cars were first brought it was sought to be established that the old doctrine of the liability of innkeepers and common carriers of goods applied; that like innkeepers and common carriers sleeping car companies were insurers. At common law, if I gave property to a common carrier he had to deliver it to me perfectly safe and sound as he got it, the acts of God and the king's enemies alone relieving him from so doing. Practically that is all done away with now by bills of lading making exceptions and reservations. So an innkeeper was an insurer of your property to the same extent. If a mob would break into his house, carry off your trunk, destroy your goods, he was responsible, nothing but lightning, storm, or the king's enemies that were in open rebellion, not simply rioters, but what assumed the dignity of armed rebellion, relieved him from liability. It became very apparent that this doctrine could not be applied to our times and our different circumstances, and the great difficulty has been to find some legal, solid principle on which to base actions of this kind, so that the carrier in this case is the sleeping car company, and you and I, and everybody else who uses sleeping cars, should also have reasonable protection. In an ordinary car, upon any railroad, if you or I purchase a ticket, sit down and go to sleep, and somebody picks our pocket, the company is under no sort of obligation to make good our loss. It is bound to carry us safely so far as our persons are concerned, but is under no sort of obligation to keep people from robbing us except it would be by an onslaught, open violence on the] cars. In such cases it has been held that the conductors are bound to protect, not only the persons of passengers, but also their property to a reasonable extent, as for instance, if some boy, fifteen years of age, with a wooden gun in his hand, would come in to rob a car, as I believe it is said they do out west, and the passengers should crawl under the seats, and the conductor and train hands run away, when perhaps if they had stood their ground they would have prevented it, the railroad company might be responsible if the jury should not find under the circumstances that the passengers ought to have defended themselves. We used to ride around in stage coaches; if robbed while in them, the company being under no obligation to carry a guard, was not responsible for the robbery, although you might go to sleep, and they knew perfectly well you would go to sleep, or ought to suppose you would, for a man could not ride half a dozen days or nights without going to sleep; but in the case of a sleeping car company the great convenience and inducement held out to passengers is that they will give them a comfortable night's rest. They notify them they will make them pay for it, and say to them you may go to sleep. The principal part of the arrangement is the advantage the passenger will have over the ordinary car that he can lie down and go to sleep. When you have gone to sleep, of course you can't take care of yourself, everybody knows that and for that very reason the fact that the company notifies you to lie down and shut your eyes and go to sleep and thus become helpless, it is their duty to take care of you while you do sleep, not that they are insurers, not that they say you shall not be robbed or cannot be robbed, but they will use reasonable and ordinary care to prevent people intruding upon you and picking your pockets or carrying off your clothes while you are asleep. That is the principle that should underlie all of these cases, and it strikes me it is founded on good sense and good STOWE, P. J., charged the jury as follows: The logic. They know that there are certain dangers to question of law suggested in this case, as you the sleeping passengers; their experience, common The plaintiff on entering the car had on his person a gold watch valued at $250 and about $55 in money. His berth was already made up, and he retired shortly after the train started. Before getting into his berth he took off his coat and vest, put his watch and pocketbook in the inside pocket of his vest and put it under the outside corner of the mattress of his berth, lay down and was soon asleep, and did not awake until near Huntingdon, about seven o'clock next morning, when the passenger conductor called for his railroad ticket. On looking for it he discovered that his watch and money were gone. He called the porter and sent him to tell the conductor, who came, and the plaintiff made known to him that he had been robbed. Officers were telegraphed for and met the train at Tyrone to search the passengers, but the missing property was not found. Two passengers who had taken berths from Philadelphia to Altoona got off at Harrisburgh, and from this fact were suspected as being the guilty parties. Every effort was made by the agents and employees of the company to detect the thieves, but of no avail. The conductor of the sleeper remained on duty in the coach until 3 A. M., when he left his post and put the colored porter upon guard, who went out for a time to black boots. The regulations required a continuous watch during the night. On the trial the plaintiff offered in evidence a conversation between himself and the porter touching the loss when first discovered, to which defendant's counsel objected as well as to the offering in evidence the deposition of C. C. Darling to prove that he had on the same night lost his watch and pocket-book. sense, without that, would say that there were dangers. They know that anybody and everybody, provided they are ordinarily respectable looking, can ride in their cars. They know the possibility of robbery, and they therefore when they notify you to close your eyes and rest, say to you and me, we will not say you shall not be robbed, but we will say we will exercise a reasonable and ordinary care to protect you from robbery. Applying that principle you will inquire: Did or did not this company at the time this transaction occurred, on this particular car, do its duty, and if so, did the parties it had employed do their duty in guarding the car that night against just such a robbery as occurred? We have it in evidence that the company has done its whole duty as a company. They require a constant watch to be kept, some person in the body of the car where the sleepers are, watching continuously. Mr. Smitley and the conductor both say that. If watch was kept by one I apprehend it would be sufficient. Of course there are many cases that no protection could guard against. It is apparent that these berths must be made in such a way that the head-boards may be easily moved, slipped out; and without you would keep a watchman at every berth there might be some fellow so expert as to be able to move one out and not be detected, just as many thieves can stand right before your face and talk to you and at the same time pick your pocket and you never suspect it. It is a sleight of hand that seems to be peculiar. Against thefts of that kind the company are not bound to protect you; but they are bound to protect you against such thefts as reasonable care will guard against. In this case the evidence satisfies me, and it would seem that is the reasonable conclusion from the testimony-that however is for the jury-first, that the regulations of this company were reasonable and proper. Thep kept a guard according to their regulations and intended to keep a continuous watch, so that a man sitting there could see everything that was going on without interfering with the sleepers. He would have no business to be away except in a special case. They station him at the end of this little aisle where he can see the whole length of the car, see any body undertaking to crawl from one berth to another, or any body in the aisle. It is lit up sufficiently to be able to distinguish objects. These Pullman cars seem to have been sufficiently manned. There were five employees altogether. One man seems to me to have been quite enough at a time to guard a car in the way that ordinary care would require it to be guarded. The conductor says he was awake in the car till three o'clock, I believe it was; says he was there continuously and watched continuously. So far if that is true, he must have done his duty. He left his post of observation or watch, and put the colored porter upon guard. Now the question for you to determine, if you find that reasonable care was exercised, as I think it was, up to that time, is: Did this colored man do his duty? There is no evidence to indicate that he was not a sufficiently proper man. Therefore the company would not be liable for having employed a man not fit for the purpose. [Did he do his duty? The regulations required him to stay in the aisle of the car continuously to watch there continuously until the danger was over, until daylight. Did he do it? If so, where is the evidence of it? We have his own declarations that he was on guard coming from the conductor; but we have also his own declarations to the plaintiff that he went out of that apartment for a time to black a pair of boots or shoes. If he went out of that aisle, even for a very few minates, and during that time this robbery occurred, and the jury believe that if he had been in his place of observation it would not and could not have occurred without detection, the company is liable because he failed to do his duty to that extent that it allowed this robbery to be done. It was his fault and it is visited on the company, although they may have done everything they thought right to get a proper man. "Watching" is not simply to be on watch nominally, it is to be on watch actually, to be there, not under pretense of continuing there; there, till you get tired and then go out and lie down or do something else, and let the very thing occur you are put there to avoid; watching must be continuous and active. He could not watch a car full of sleeping people very well if he were in the front part in those little rooms or ante-chambers, or whatever they are called, where people dress and wash.] The counsel have directed your attention to the principal facts involved in the case. If you think the car was not sufficiently manned at the time, of course you have a right to say so; but if you think with me, that there were sufficient people there, that one man was sufficient, according to the ordinary practice of the company, and if you believe, as seems to be the case, that the conductor did his duty, then the whole thing turns on what was done after the conductor went off watch, and there you have this evidence, or the want of evidence, if you choose. The man that could have told us has not come here. The defendants intimate that they tried to get him, but he didn't come. If they had not shown that they tried to get him the inference would have been against them-that they did not want him here. I think that is fairly rebutted, but that he has not come is a matter for the jury to consider, as to why he did not come. He may not have taken this property, probably he did not, because the indications are that somebody else did-the men who got off under suspicious circumstances-but it would lie according to the testimony, between those two men and the porter, and whether one or the other did it, if they did it, the porter allowed them by his carelessness to do it, or he did it, the company would be liable. I presume there is no pretense however that the porter did it. All of these matters are for the consideration of the jury, the possibilities and probabilities, and you have to take it altogether and render such verdict as you think proper, bearing in mind of course the one simple question, whether at the time the robbery was committed, the employees of the company, this man in particular, who should have been watching, was doing his duty and whole duty. If you find for the plaintiff, the rule of law is that he should only recover for a reasonable luggage, clothing, personal ornaments and a sum of money such as would be ordinarily proper for travelling expenses. He had gone away from home to be gone a week or more, and I think the amount of money-some sixty odd dollars-would not seem to be at all unreasonable. I know I would want as much at least as that if I was going away (and did not intend to spend much), for a week or two; and I think anybody going away on business with the expense incident to travel could not very safely leave with less than a hundred dollars or so. That of course is for the jury, not for me. He had a gold watch; it was a valuable one, but it would seem to be not of such exceptional value as to take it out of the ordinary rule. It had been worn about a year, which would somewhat impair its value as a merchantable article, for which there ought to be some deduction, and then he ought to have interest from the time of the robbery till the present time. Of course if you think the defendant company did its whole duty, that the watchman was diligent and attentive, you ought to find for the defendant. Verdict for plaintiff for $317.80. Per Curiam. We have carefully examined the evidence and considered the assignments of error. Con ceding that the company is not liable in this action as an innkeeper or common carrier; yet a reasonable and proper degree of care is imposed on the company. Whether it did exercise that degree of care, under the circumstances, was for the jury. The main object in taking passage in such a car is to permit the passenger to sleep. While in that helpless condition a duty rests on the company to provide reasonable care and precaution against the valuables of a passenger being stolen from his bed or from the clothes on his person. This is not the case of a robbery by force and violence; but by stealthy larceny. Unless a watchman be kept constantly in view of the center aisle of the car, larceny from a sleeping passenger may be committed without the thief being detected in the act. While the fact that another passenger in the same car was robbed the same night, was not relevant to prove that the defendant in error was in fact robbed, yet it was admissible as bearing on the absence of proper care by the company. This case was submitted to the jury in an able and correct charge. We see no error of which the company can complain. Judgment affirmed. [NOTE. This is in harmony with Woodruff Sleeping and Parlor Coach Company v. Diehl, 84 Ind. 474; S. C., 43 Am. Rep. 102; 22 Alb. Law Jour. 90; Palmeter v. Wagner, 11 id. 149, Blum v. Southern Pullman Palace Car Co., 1 Flip. 500. Compare Kinsley v. Lake Shore, etc., R. Co., 125 Mass. 54; S. C.. 28 Am. Rep. 200; Clark v. Burns, 118 Mass 275; S. C., 19 Am; Rep. 456. ED. ALB. LAW JOUR.] POWER TO MORTGAGE INCLUDES POWER TO EXTEND EXISTING MORTGAGE. SUPREME COURT OF THE UNITED STATES, NOVEMBER 26, 1883. WARNER V. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY. C. and his wife executed a mortgage on her estate for his debt. Thereafter she died and by will gave him an estate for life in the property, appointed him executor, and granted the power to him to mortgage or to sell the property to pay off the incumbrances thereon. Thereafter he and the mortgagee made a valid contract, extending the time of payment of the existing mortgage. Held, that the extension of time did not discharge the lien of the mortgage as to the remaindermen. APPEAL from the Circuit Court of the United States for the Northern District of Illinois. The opinion states the case. MATTHEWS, J. This appeal brings into review a decree for the foreclosure of a mortgage of real estate and a sale of the mortgaged premises, and dismissing a cross-bill filed by the appellants praying that the mortgage might be declared not to be a lien on the premises and delivered up to be cancelled. The mortgage in question was dated February 24, 1869, and was made by Cyrenius Beers and Mary Beers, his wife, to secure payment of a debt due from the husband to the mortgagee, according to the terms of his bond, conditioned for the payment thereof on February 24, 1874, with interest at the rate of eight per cent per annum, payable semi-annually. The title to the real estate mortgaged is recited in the mortgage to be in the wife. Mary Beers died, leaving a will, which was duly admitted to probate in March, 1872. It is as follows: "I, Mary Beers, wife of Cyrenius Beers of Chicago, of lawful age and sound mind, in view of the uncertainty of human life, do make, publish, and declare this my last will and testament: "First. I order all of my debts to be paid, including the expenses of my funeral and last illness. "Second. I give and bequeath to my husband, Cyrenius Beers, all the estate, both real, personal, and mixed, of which I die seised or possessed, to be held by him in trust for the following uses, purposes, and trusts, and none other, that is to say: To receive the rents, income, and profits thereof during his life, with the remainder to my children, Mary C. Foster, wife of Orrington C. Foster, Rissa J. Beers, and Charles G. Beers, share and share alike to them, their heirs and assigns forever. “But provided that said Cyrenius Beers may incumber the same by way of mortgage or trust deed or otherwise, and renew the same, for the purpose of raising money to pay off any and all incumbrances now on said property, and which trust deed or mortgage so made shall be as valid as though he held an absolute estate in said property. 'But provided further, that the said Cyrenius Beers may, in his discretion, during his life, sell and dispose of any or all the real estate of which I may die seised or possessed, as though he held an absolute estate in the same, and out of the proceeds pay any of the incumbrances upon any of the property of which I may die seised and possessed, and the remainder, over and above what may be required to pay the indebtedness upon said property, the same being now incumbered, to reinvest, in such way as he may see proper, and from time to time to sell and reinvest such reinvestment, to continue to be held in trust the same as the estate of which I may die possessed; that is to say, the said Cyrenius Beers only to have the use during his life of said estate, with the right of sale and incumber and reinvest, the remainder after his death to go to my children and their heirs forever. "Third. I hereby appoint said Cyrenius Beers executor of this my last will and testament, hereby waiving from him all bail and security, as I have a right to do under the statute in such cases made and provided, as such executor." Cyrenius Beers qualified and acted as executor, administered the estate fully, and was discharged September 20, 1877. The appellants are children and devisees of the testatrix, and the only ones interested in the mortgaged premises, as such; a brother, the only other child, Charles G. Beers, having released his interest to them. The life estate of Cyrenius Beers was determined by his death, on or about February 25, 1878. The accruing interest on the mortgage debt had been duly paid by him until the maturity of the principal sum, February 24, 1874, when the appellee and Cyrenius Beers entered into a written agreement whereby the time of payment of the principal of the mortgage debt was extended and postponed until February 24, 1879, in consideration of the agreement of Cyrenius Beers to pay the same when due, and interest thereon in the meantime at the rate of nine per cent per annum, payable semiannually. This extension of the time of payment of the mortgage debt was made without any consent thereto on the part of the appellants. It is claimed on their behalf, that as owners of the estate mortgaged by the testatrix to secure the debt of her husband, they are in the position of sureties, and that the extension of time for the payment of the debt, without authority from them, is in equity a discharge of the lien of the mortgage. The appellee insists, in reply to this claim, that the agreement by which further time was given for the payment of the debt, during which the mortgage was continued in force, was anthorized by the will of Mary Beers and binds her devisees. Whether this |