cember 9, 1871, at the request of the defendan and in execution of the trust and confidence so reposed in him, and upon no other consideration, Fay conveyed the premises to the plaintiff, who is the son of the defendant. The plaintiff gave no consideration whatever either to Fay or the defendant for such conveyance or the premises described therein. At this time the defendant was in the habit of reposing great confidence in the plaintiff, and making or procuring to be made to him conveyances of lands belonging to or purchased by the defendant, in the trust and confidence that the plaintiff would dispose of such lands and premises for the use and benefit of defendant, and as he might direct and request, and at the time of the conveyance from Fay the plaintiff expressly agreed with the defendant, although not in writing, to hold the title to the premises described therein for his use, benefit and convenience, and subject to his order. The defendant, at the time of his purchase, went into the actual possession of the premises, and notwithstanding the conveyance to Fay, and that from Fay to the plaintiff, continued in possession thereof by himself or his tenants, and received at all times the proceeds and rent of the land, and solely and without direction from the plaintiff managed the property. In October, 1872, at the request and for the benefit and convenience of defendant, the plaintiff conveyed the premises to Frederick J. Ferris and John Shillito, Jr., for the consideration expressed on the conveyance of $100,000. To secure payment of part of this purchase money they executed to the plaintiff two bonds and mortgages upon the premises, one for $45,000, the other for $15,000. The $15,000 bond and mortgage was subsequently, in July, 1873, sold by the defendant for his own benefit, and by his direction the plaintiff executed to the purchaser an assignment thereof, the defendant then claiming to be the owner of the property, and giving a reason (which involved no immoral or illegal purpose) why he had the title in his son's name, and the latter, although present, neither "contradicted, denied or questioned it.” "The other bond and mortgage, which is the one now in question, were, a few days after execution, with the knowledge and consent of the plaintiff, delivered to the defendant, and have since remained in his custody. These facts are found by the trial court. In November, 1879, the plaintiff demanded of his father the bond, and being denied commenced this action in February, 1880, for the purpose of having it adjudged that he is the sole owner and holder of the bond and mortgage," and entitled to the immediate possession from the defendant. Thus the facts which were not in writing have, in a litigation moved by the plaintiff been found to exist, and upon them the court is to say whether the plaintiff hath title in conscience to recover or not."

DANFORTH, J., delivered the opinion of the

court:

He

In the first place, it is obvious that a clear and absolute trust in the plaintiff in favor of defendant was established in regard to the premises conveyed to the former by Fay, which a court of equity would recognize and enforce (McCartney v. Bostwick, 32 N. Y. 53) unless prevented by the statute (sec. 51 and 6, infra). But here we are to consider that the defendant is not in court of his own motion. He is brought in by the plaintiff, who is compelled to come here and ask for relief, which he can not obtain elsewhere. concedes the defendant's case, but to defeat it relies upon the statute (sec. 51, tit. 2, pt. 2, ch. 1, art. 2, 1 Rev. Stat., 728), which doclares that "where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyveyance," subject to an exception in favor of creditors of no importance here.

The existence of a state of facts embraced in this provision, and but for which the defendant would have a clear case,is assumed by the learned counsel for the respondent, and the claim made that under these circumstances the defendant can not make out a trust "except by a writing declaring the trust and subscribed by the plaintiff," relying in support of this proposition upon sec. 6, tit. 1, pt. 2, ch. 7, p. 134, vol. 2, Rev. Stat., which prescribes these formalities in the creation of certain interests in lands.

It may, however, be observed at the outset that it is also provided by the same statute (sec. 10), that the provisions of that title shall not be construed to abridge the powers of courts of equity to compel the specific performance of agreements, in cases of part performance of such agreements, and that it is the well settled doctrine that in cases of fraud equity will relieve, even against the words of the statute. The question then is, whether the plaintiff has such a right to the bond and mortgage in controversy as a court of equity will enforce; or, to bring the question into narrower compass, whether provisions of law intended to prevent fraud can be successfully invoked to secure to a wrong doer the fruits of his iniquity. The answer is easy. See Reech v. Kenuegal, 1 Ves. 123; Nelson v. Worrall, 20 Iowa, 469; Haigh v. Kaye, L. R. 7 Ch. App. Cas. 469. The same principle has frequently been acted upon by this court. Ryan v. Dox, 34 N. Y. 307; Wheeler v. Reynolds, 66 N. Y. 227, in both of which cases a full and careful examination was made of the reasons and authorities on which it rests. Indeed, the decisions are all one way. They establish as a fundamental doctrine of a court of equity that the statute of frauds was' not made to cover fraud. In the cases especially referred to the wrong doer was forced into court. In this case he comes in voluntarialy asking the court to aid him in the perpetrating of his fraud, and without even the poor excuse found in other

cases that by the conveyance to him that defendant meditated a fraud on others.

In the next place the plaintiff is not entitled to have the statute (sec. 51 ante) strained in his favor, and taken literally it does not cover his case. The grant to him was from Fay; and for that no valuable consideration was paid; Fay conveyed because in common honesty and in fulfillment of his trust he was bound to convey. The plaintiff's claim is stricti juris The statute (sec. 51) now invoked by the plaintiff, if operative in such a case, and according to the plaintiff's claim, was effectual as between Fay and the defendant, and vested in him the title so completely that the defendant had no legal or equitable interest the land. Garfield v. Hatmaker, 15 N. Y. 475. He had a right, however, to recognize his moral obligation and convey it to such persons as he chose. Siemon v. Schurck, 29 N. Y. 598; Foote v. Bryant, 47 N. Y. 544. And upon such conditions as the defendant saw fit to impose or prescribe. It was the plaintiff's promise to perform those conditions which led to the execu tion of the deed to him.

But another and conclusive answer to the plaintiff's case is that, as by his express agreement he was to hold the title to the land conveyed "for the use, benefit and convenience, and subject to the order of the defendant," he did, in consummation of the sale to Ferris and Shillito, by direction of the defendant, and for his benefit and convenience, execute a deed to them. At the same time possession went to them from the defendant. The trust was executed, and whether the defendant could have compelled it or not is immaterial. The plaintiff responded to the call of his cestui que trust, and from that moment had no further concern or interest, real or apparent, in the property. His whole duty as trustee was discharged. Nothing then remained but a right to the purchase money, and this vested at once in the defendant. Although the bond and mortgage in form ran to the plaintiff, he took as trustee for the defendant by implication of law, if not by agreement.

Those securities were personal property only, and had no relation to the statute.

It is not necessary to inquire whether the defendant could by any legal proceeding have compelled the plaintiff to convey the lands; he has done so in performance of his undertaking and without compulsion. Nor is it necessary to inquire whether, if he had received the consideration of the deed in money, it could have been taken from him. He did not receive it, and is in a court of equity seeking to obtain it. We have found no ground upon which the claim can stand. Judgment reversed, complaint dismissed, and bond and mortgage adjudged the property of the defendant.

The fact that the colt in question was acquired by exchanging therefor a horse that was exempt from attachment, does not exempt it. The statute that provides that no person shall be liable or chargeable on trustee process on account of a sum due or owing to the principal debtor for property sold and conveyed or delivered by h'm that was at the time of such sale exempt from attachment and execution, is not operative to this extent.

The colt was not broken at the time it was taken on execution, although the plaintiff had commenced to handle it some, with a view to breaking. It had never been kept and used for team work, and the case does not disclose that plaintiff had any intent or purpose of keeping and using it for such work, nor that he selected it for exemption. The burden was on the plaintiff to show affirmatively all the facts necessary to bring his property within the statute of exemption. This he has failed to do. Judgment affirmed.

V. Gilpin Robinson, District Attorney, for the Commonwealth; E. M. Hall, for defendant in

error.

PAXSON, J., delivered the opinion of the court: The only question presented by this record is, whether the indictment sets forth an indictable offense. It contains two counts, in each of which the defendant below is charged with cheating by false pretenses. The particular act alleged was the procuring of the prosecutor's indorsement of the defendant's promissory note, and the false pretense charged consisted in his representing to the prosecutor that he would use the note so indorsed to take up and cancel another note of the same amount then about maturing, and upon which the prosecutor was liable as indorser. In other words, the note was given in renewal of another note of like amount, and the indictment charges that the defendant, instead of using it for this purpose, as he promised to do, procured it to be discounted, and used a portion of the proceeds for other purposes.

A false pretense, to be within the statute, must be the assertion of an existing fact, not a promise to perform some act in the future. The man who asserts that he is the owner of a house states a fact, and one that is calculated to give him a credit. But a mere failure to keep a promise is another and very different affair. That occurs whenever a man fails to pay his note. It is true, Chief Justice Gibson doubted, in Commonwealth v. Burdick, 2 Barr, 163, whether every naked lie by which a credit has been gained is not a false pretense within the statute. This doubt has run its course, and has long since ceased to disturb the criminal law of this State. There was nothing in Commonwealth v. Burdick to suggest such doubt, as the defendant had wilfully misrepresented that he had a capital of $8,000 in right of his wife, while in all the cases cited therein there was a misrepresentation as to existing facts, by means whereof credit was obtained. The decisions upon this subject are uniform, and it would be an affectation of learning to cite the cases. Many of them may be found in the foot note to Purdon.

In the case in hand there was no assertion of an existing fact. Nor was there anything done by which even a credit was given. The credit had been obtained when the original note was indorsed; the present note was indorsed in lieu of and for the purpose of taking up the original; the failure to use it for such purpose was certainly a dishonest act on the part of the defendant, but we do not think it punishable under the statute defining false pretenses.

It was urged, however, that if it was not cheating by false pretenses under the statute, it was constructive larceny, and therefore within the proviso of section 111 of the act of 31st of March, 1860, P. L. 410, which is as follows: "Provided, always, that if, upon the trial of any person indicted for such a misdemeanor (false pretenses) it be proved that he obtained the property in

question in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts."

The fourth assignment of error avers that "the learned court erred in not holding that the facts set forth in the indictment, and proved on the trial, showed that the defendant obtained the property in question in such manner as in law would amount to larceny, and in not giving judgment for the Commonwealth."

We do not think it necessary to discuss the line of cases cited in the able and interesting argument of the learned district attorney, defining the distinction between the offenses of cheating by false pretenses and constructive larceny. While the distinction is a nice one, it is, nevertheless, clearly defined. The difficulty upon this head not in the law, but in the application of the law to the facts of a particular case. We are not called upon to pursue this inquiry in the present instance. It requires but a moment's reflection to see that we could not reverse the court below upon this ground. How can we as an appellate court say whether it was proved upon the trial below that the defendant obtained the property in question in such manner as to amount in law to larceny, when not one word of the evidence is before us? But, it is said, the jury, having convicted the defendant of the offense of cheating by false pretenses, we must assume that the facts proved amounted to larceny. This does not fellow. A general verdict of guilty upon the indictment is a finding only of the facts sufficiently pleaded. Neither of the counts would sustain a charge of larceny. The first count contains no averment that Horace P. Green, the prosecutor, was or ever had been the owner of the note in question, and if never the owner it could not have been stolen from him. The second count was evidently intended to cover both offenses; but such criminal pleading is rarely a success, and certainly is not so in this case. It contains an averment at the close that the said note was "then and there the property of the said Horace P. Green." Unfortunately for this averment, the prior portions of the same count show the fact distinctly that the note in question was the note of the defendant, drawn by him in favor of the prosecutor, and by the latter indorsed for the accommodation of the defendant and handed back to him. It was, therefore, the property of the defendant, and not of the prosecutor. The second count contradicted itself upon the facts, and the finding of the jury is wholly insufficient to enable us to say the facts proved upon the trial amounted to larceny.

We are, therefore, of the opinion that the learned judge of the court below committed no error in arresting the judgment, and his ruling must be affirmed.

SHARSWOOD, C. J., concurs in the opinion, but would quash the writ.

1. AGENT-SALE ON CREDIT-LIABILITY. Where an agent is empowered to sell upon credit, taking notes for the amount which the principal assumes to dispose of, such agent will be personally liable for the full amount if he takes a note payable to himself and discounts it instead of transmitting it to his principal. Potter v. Zeitinger, S. C. Pa., 4 Wis. Leg. News, 405.

2. APPEAL APPELLATE PRACTICE-CONTENTS OF BILL OF EXCEPTIONS.

The practice of setting out in the bill of exceptions the entire charge of the court, Instead of those parts only which are complained of, again condemned. United States v. Rindskopf, U. S. S. S. C., April 24, 1882, 4 Morr. Trans., 652.

3. APPEAL-SUPERSEDEAS-FINAL JUDGMENT. The judgment of the Court of Errors and Appeals of New Jersey affirming the judgment of the lower court and remitting the record to the inferior court is the final judgment in the case, and not the order of the inferior court receiving and filing the remittitur; and a writ of error to operate as a supersedeas should have been within sixty days from such judgment. Crane Iron Co. v. Hoagland, U. s. S. C., May 8, 1882, 4 Morr. Trans., 729.

4. BANKRUPTCY-LIMITATION UPON ASSIGNEE. Section 5057 of the Revised Statutes of the United States, requiring the assignee in bankruptcy to bring suit on all claims for the bankrupt estate within two years after the cause of action accrued, etc., does not impose a jurisdictional requirement and deprive the court of the power to entertain such a suit after the lapse of that time; but it is a statute of limitations and governed by the principles applicable to statutes of limitations. Upton v. McLaughlin, U. S. S. C., May 8, 1882, 4 Morr. Trans., 721.

5. CONSTITUTIONAL LAW-STATE TAXATION OF NATIONAL BANK STOCK.

On the principles announced in the two preceding cases, the taxation of national bank shares by the Indiana revenue laws, without permitting the shareholder to deduct from their assessed value the amount of his bona fide indebtedness, as is allowed in the case of other investments of moneyed capital, is a discrimination against the act of Congress; and the collection of the illegal excess may be enjoined by those who prove that they owe debts which they are entitled to have deducted. Evansville Nat. Bank v. Britton, U. S. S. C., April 3, 1882, 4 Morr. Trans., 563. 6.CONSTITUTIONAL-LAW-STATE TAXATION OF NATIONAL BANK STOCK.

A party who makes affidavit under the act of New York of 1850 that the value of personal estate owned by him is only slightly in excess of his debts, and demands of the tax assessors that the debts due by him be deducted from the valuation placed on his national bank stock, is, on their refusal, entitled to an injunction restraining them from collecting the illegal excess in his taxes caused by the improper valuation of his bank

stock. And where the fact is clearly established from the general course of dealing of the assessors that such affidavit and demand would have been unavailing, the necessity of making it is dispensed with. Hills v. Albany Exchange Bank, U S. S. C., April 3, 1882, 4 Morr. Trans., 559.

7. CONSTITUTIONAL LAW-IMPAIRING THE OBLIGATION OF A CONTRACT - TAXATION OF EXEMPT CHARITY.

1. A section of the charter of a Louisiana charitable institution, enacted in 1853, provides that all its property shall be exempt from taxation either by the State, parish or city in which it is situated, any law to the contrary notwithstanding: Held, that this exemption extended to all property used by the corporation for the purpose of raising revunue, whether such property was acquired before or after the adoption of the State Constitution of 1868 and the legislation adopted in pursuance thereof, requiring all property to be equally taxed; and that the one hundred and eighteenth section of the State Constitution of 1868 and the legislative act of 1871 in pursuance thereof impair the obligation of a contract in so far as they attempt to tax such property of the charitable institution. 2. And the four hundred and thirty-eighth article of the civil code, adopted in 1825, on the dissolution of corporations, which is a part of all charters granted by the legislature, authorizes the amendment of the charter, if at all, only on making proper reimbursement, which in the case of a tax law would balance the tax. St. Anna's Asylum v. New Orleans, U. S. S. C., April 24, 1882, 4 Morr. Trans., 602.

8. CONTRACT-ABROGATION-CONSTRUCTION. A book agent contracts with a publishing house to canvass for a certain work to be published in serial volumes. After having obtained subscribers in large numbers, he takes the agency from another house to canvass for a rival edition of the same work, and induces many of the former subscribers to take for the volumes not yet issued the rival edition. On applying to the house first employing him to furnish volumes to fill his orders, they refuse to do so, except for cash accompanying the order: Held, 1. That having abrogated the contract by his own act, he could not claim the benefit of a provision in that contract giving him credit. 2. That even if his acts did not amount to an abrogation of the contract, it was his duty to save himself from all loss possible; and he could charge the delinquent only with such damages as he could not reasonably prevent. 3. That in case of a violation of a contract to sell on a certain credit, the measure of damages is interest for the period of the credit. Warren v. Stoddart, U. S. S. C., April 24, 1882, 4 Morr. Trans., 657.

9. CONTRACT-FOR PUBLIC WORKS, CONSTRUED IN CONNECTION WITH ADVERTISEMENTS AND BIDS. 1. The contract of Harvey & Livesey with the United States to build a bridge at Rock Island, Illinois, should be construed in connection with the advertisement calling for bids and the bids; and so construed it was the duty of the government, and not of the contractors, to build the necessary cofferdams. 2. The special act of Congress for their relief, passed August 14, 1876, does not limit the equitable jurisdiction of the court of claims thereby conferred to the mere consideration of claims for labor done and materials furnished, but authorized it to adjust the accounts between the parties for all demands growing out of the contract. 3. Where equitable jurisdiction is con

ferred in a special case by a special act, no statement of facts on appeal is necessary, section 707 of the Revised Statutes of the United States not applying to such cases. Harvey v. United States, U. S. S. C., May 8, 1882, 4 Morr. Trans., 699.

10. CONTRACT-NOVATION-PARTNERSHIP. Where money is borrowed from a new firm to pay debts due to an old firm of the same name, it is a novation, and equities which the borrower might have had against the old firm can not be invoked to the prejudice of the new firm. Shafer's Appeal, S. C. Pa.. 4 Wis., Legal News, 402.

1. Whenever property of any kind depends for its value upon contingencies which may never oceur, or developments which may never be made, opinion as to its value is more or less of a speculative character; and no action will lie for its expression, however fallacious it may prove, or whatever the injury a reliance on it may produce. 2. Hence, a written certificate as to the value of land supposed to contain a mine of sandstone, by which a party was induced to lend a sum of money on its as security, and which greatly exceeded the value of the land, when sold to satisfy the debt. is not actionable. Gordon v. Butler, U. S. S. C., May 8, 1882, 4 Morr. Trans., 693. 12. CONTRACT-SALE-CONSTRUCTION-POSSESSION. 1. A recital in a contract of sale or exchange that the vendor hereby delivers possession" of the articles sold vests the title and right of possession in the vendee, but is not of itself a delivery of actual possession. 2. If the vendee, even after suit brought by him, accepted the articles sold after the time when they should have been deliv cred, or permitted repairs or supplies to be furnished, and accepted the benefit of them, such fact may be proved in reduction of damages for the breach of contract. 3. In case of a total failure of the vendor to comply with a contract of sale, or a partial failure arising from his supplying defective articles, the measure of damages, unless in exceptional cases of special damage, is what it would cost the vendee to supply the deficiency, without regard to the contract price. Marsh v. McPherson, U. S. S. C., April 24, 1882, 4 Morr. Trans., 641.

13. DESCENTS AND DISTRIBUTIONS IN MISSOURI— ALIENS.

1. The Missouri statutes of descent, as regards aliens, construed to mean that aliens residing in the United States who have made a declaration of intent to become citizens, and those residing in Missouri whether they have made such declaration or not, are entitled to acquire and hold real estate; and that the right conferred upon aliens by the act of 1855 to sell and convey real estate within a prescribed time referred only to cases in which the property would vest at once in the State for the want of some person who could inherit, and had no reference to those classes who were allowed to acquire and hold in the same manner as citizens of the United States, as above set forth. 2. Ard the section of the statute declaring that “in making title by descent it shall be no bar to a demandant that any ancestor through whom he derives his descent is, or has been, an alien," construed, in view of the policy of Missouri on the subject, and notwithstanding the case of McCreery v. Somerville, 9 Wh. 354, to allow the children of an alien ancestor to inherit and claim through that ances

tor, although such ancestor, at the time descent was cast, was living and himself incapable of inheriting. 3. The Missouri statute of March 30, 1872, conferring upon aliens the power to acquire and hold real estate, is prospective in its operation. Sullivan v. Burnett, U. S. S. C., April 24, 1882, 4 Morr. Trans., 671.

14. LIEN-PRIORITIES - EXECUTION SALE-MORT

GAGE.

1. Under the law of Texas the lien acquired by a creditor without notice, by a judgment and levy of execution, is superior to the unrecorded deed of a vendee; and the purchaser under such execution with notice is entitled to all the rights of the creditor. 2. Hence the purchaser at a sale made under judgments which had been obtained prior to the recording of a mortgage, and without notice of it, obtains a better title than the mortgagee, even though the sale was made subsequent to the recording of the mortgage and with notice of it. Stevenson v. Texas, etc. R. Co., U. S. S. C, May 8, 1882, Morr. Trans.. 731.

15. LIMITATIONS-QUESTION MUST BE RAISED IN COURT BELOW.

It is too late to raise the point that the action is barred by a statute of limitation for the first time in an appellate court. Although, under the Code of Civil Procedure of Wyoming Territory, the defense of the statute of limitation may be raised by special demurrer where the petition shows on its face the necessary facts, yet such a defense must be made in the court of original jurisdiction, before judgment, and can not be made for the first time in the appellate court; and the record must how that the question was distinctly raised in the lower court. Upton v. McLaughlin, U. S. S. C., May 8, 1882, 4 Morr. Trans., 721.

16. MANDAMUS- RAILROAD'S REFUSAL TO TRANSPORT FREIGHT-PUBLIC AND PRIVATE WRONGS. The neglect or refusal of a railroad corporation to receive freight tendered it by citizens of the State is a private wrong for which the citizen is entitled to recover in an action at law, such damages as he has sustained. It is not such a public wrong as will authorize the issuing of a writ of mandamus. The writ of mandamus is an high prerogative writ, which will only issue to compel the performance of a duty that is clear and distinct. It will not issue in dubious or doubtful cases. When there is an adequate or complete remedy at law, a writ of mandamus will not issue. The writ of mandamus when it is issued must clearly and distinctly state the acts or duties which are by it commanded to be performed, so that the party to whom it is addressed may distinctly understand what he is to do. People ex rel. v. New York, etc. R. Co.,S. C. N. Y., July Special Term, 1882, 2 N. Y. Civ. Proc. R., 82.

17. MARRIED WOMAN -BINDING SEPARATE Estate -DEBTS INCURRED FOR ITS BENEFIT.

1. The debts of a married woman (in this case a milliner), contracted in the management of her sepaarate estate and for its benefit, or for her benefit on the credit of such estate, in equity, will be enforced against such estate, whether the same consists of personal or real estate, unless the instrument creating such estate protects it against being charged with such debts. 2. But the credit must be given to the estate and not to the individual; and the report must show this. 3. When a debt is thus contracted by the wife for the benefit of her estate, and on the credit of such estate, etc., her estate is held, though the note was signed by