ing and greater security and convenience, in the Corn Exchange Bank of Waupun, near which he resided, taking a certific te of deposit in his own name for the amount. The court found that the bank was, at the time, in good credit and repute, as safe, solvent and in all respects trustworthy; that in making the deposit the administrator informed the teller who received the money and gave the certificate that the moneys were trust funds, and did not belong to him individually, but did not inform him as to whom the money did in fact belong, nor give any direction as to the deposit being made or the certificate issued in any other than his individual name; that said administrator had previously had money on deposit to his individual credit, but at the time in question had none: that the $665.70 was at the time in fact placed to his individual credit on the books of the bank and so remained; that at the time of making the deposit he took the certificate and retained the same; that in August, 1875, the bank failed, and the amount became wholly lost, and the certificate wholly worthless, except as to a small dividend upon the assets in the hands of the receiver; and as a conclusion of law that the administrator was not entitled to credit for the amount of such loss but must fully account for and pay over to the estate the amount of the money so deposited, and accordingly affirmed the order or judgment of the county court disallowing such credit and holding him to such accountability. And from the judgment thereupon entered this appeal is brought.

CASSODAY, J., delivered the opinion of the

court:

The very small portion of the argument heard, and a hasty reading of the printed briefs, strongly impressed the writer with the justice and equity of the appellant's theory. But my brethren, who heard all the arguments, are clearly of the opinion that the findings of the circuit court are in accordance with the evidence, and that the law applicable thereto, rigidly holds the administrator accountable for the amount of the deposit in question. A very careful examination of the authorities induces me to acquiesee in their judgment. Undoubtedly the general rule is, that trustees are liable only for good faith and common prudence, and that if a loss happens to a trust fund in relation to which they have exhibited this care and prudence, they may be allowed for the loss in their accounts. This is abundantly shown by the authorities cited by the able counsel for the appellant. But here the trust fund was not left with the bank for safe keeping and to be preserved in kind as a special deposit, but as a deposit to the credit of the depositor, and the amount of which was "payable to the order" of the depositor "in currency on the return of " the "certificate properly indorsed." Thus it is plain that the identical money deposited was not to be returned, but the amount of it was to be paid "in currency" on presentation of the certificate, properly, indorsed. In other words, the depos

itor departed with the money for the general use of the bank, and took from the latter its obligagation to repay a like amount in currency when required, as stated. The authorities seem to hold, and it would probably be conceded, that the cestui que trust of this fund could have held the bank liable as against the personal representatives, creditors or legatees of the depositor. But the question here is whether the depositor is released from liability to his cestui que trust by reason of such deposit and the subsequent failure of the bank? The earliest case cited is Knight v. Lord Plymouth, 3 Atkyns, 480; s. C., 1 Dickens, 120, decided by Lord Chancellor Hardwicke in 1747, where it was held that: "Where a receiver pays money to a tradesman, and takes bills for the sum, if he was in credit at the time, though he fails soon after, it shall not affect the receiver." It does not appear from the report of that case whether the deposit was made by the receiver as receiver or as an individual. In Wren v. Kirton, 11 Ves. Jun. 377, Lord Ch. Eldon said: "In Knight v. Lord Plymouth, I apprehend, the deposit with the country banker was to the account of the receiver, as receiver; not to his individual account." And subsequently, in the same case, he said: "I should not much fear to contradict that case of Knight v. Lord Plymouth, upon what has been done by later authorities, if it is as represented; for nothing is more dangerous. * * If he goes to a responsible banker, and gets a bill upon a responsible house in London in his favor, as receiver, that bill, so earmarked, would be specific assets, to the credit of the trust property." And so in the case last cited, he held the "receiver charged with a loss by the failure of the banker; having made the remittances to his own credit and use; and not to a separate account for the trust." The same rule was followed by Lord Ch. Brougham in Salway v. Salway, 2 Russeli and Mylne, 215, subsequently affirmed by the House of Lords, 2 Id. 751. See White v. Bough, 3 C. and F. 44. It is true that Knight v. Lord Plymouth, has frequently been referred to in other cases, without such discrimination (Routh v. Howell, 3 Ves. Jun. 566; Lovell v. Minot, 20 Pick. 119; United States v. Thomas, 15 Wallace, 343; Seawell v. Greenway, 22 Texas, 697), but the distinction thus made by Lords Eldon and Brougham, seems to be well supported by authority. See Massey v. Bonner, 4 Maddock, 413; Tebb v. Carpenter, 1 Maddock, 290; Matthews v. Brise, 6 Beav. 239. In holding the trustee liable in the last case cited, the learned Master of the Rolls lays stress on the fact that the exchequer bills "remained undistinguished" as trust property in the hands of the broker, and indicates, that if he would have escaped liability, he should have distinguished them as such trust property. To the same effect is Massey v. Bonner, 1 Jacob & Walker, 248, where Lord Eldon said: "If an assignee pays money into his banker's hands, as money belonging to the estate and the banker fails, the assignee is undoubtedly clear from the loss; but

if, instead of distinguishing it, he pays it all into his own account, then it is his account there; there is nothing like a declaration of trust of it, and it is familiar to consider him as having it in the banker's hands for himself, making him liable for it, etc. * * I can not doubt that this principle has been acted on with trustees and executors, who are equally gratuitous agents with this defendant. In Robinson v. Ward, 2 Car. & Payne, 60, Abbott, C. J. (Lord Tenterden), speaking of the method by which the agent might have escaped liability, said: "The defendant should have paid this money into a banker's hands, by opening a new account in his own name, for the credit of Robinson's estate, and so ear-marked the money, as belonging to that estate; then it would have been kept separate." See, also, Macdonnell v. Harding, 7 Simon, 178; Hamon v. Cottle, 6 Serg. & R. 290; Cartmell v. Allard, 7 Bush, 482; Bartlett v. Hamilton, 46 Me. 435. In Norris v. Hero, 22 La. An. 605, it was held that: "An agent who, when it becomes his duty to deposit in bank the moneys of his principal, fails to make the deposit in the name of his principal, becomes personally liable for the amount. In such a case the agent will not be permitted to urge the failure of the bank after the deposit was made, and throw the loss on the principal." To the same effect is Mason v. Witthorne, 2 Caldwell (Tenn.), 242. The rule would seem to be imperative that: "An administrator or trustee who deposits trust funds in his own name, in a bank, or other institution, which fails, the loss will fall upon him." Commonwealth v. McAlister, 28 Pa. St. 480; s. c., 30 Pa. St. 336. In the opinion of the court in the the last case, Porter, J., said: "If he (the trustee) undertakes to make a deposit in a banking institution, the entry must go down on the books of the institution, in such terms as not to be misunderstood, that they are the funds of the specific trust to which they belong. He can not so enter them as to call them his own to-day, if they are good, and to-morrow, if bad, ascribe them to the estate; or shift them in an emergency from one estate to another; or by the deposit, secure the discount of his own note, and have the deposit snatched at by the bank if the note be not paid, or attached by a creditor as the depositor's individual property. * * No matter what he intends to do, or what the cashier or clerk may think he is doing, the deposit must wear the impress of the trust, or he can not, when brought to account, call it trust property." See Baskins v. Baskins, 4 Lansing, 90. Following in the line of the English cases, it was held in Jenkins v. Walter, 8 Gill & Johnson, 218, that: "Where a guardian had received a sum of money belonging to his ward, and on the day of its receipt, had deposited it in a banking institution then in good credit, but which subsequently failed, and taken a certificate therefor payable to himself, or order, it was held, that the loss resulting from the failure of the bank should fall upon him, though on the day of the deposit, by indorse

ment on the certificate, he declared it to be the property of his ward, and placed 'in bank for his benefit."" So Mr. Perry, on the strength of some of the English cases cited, says: "If money is to be transmitted to a distant place, a trustee may do so through the medium of a responsible bank, or he may take bills from persons of undoubted credit, payable at the place where the money is to be sent; but the bills must be taken to him as trustee; if he neglects these precautions he will be responsible for any loss." Sec. 406.

It is true that, in some of the cases cited, the trustee had, at the time of making the deposit, a credit to his individual account at the bank, and such deposit was credited to him individually in the same account. But the test is not so much the keeping of a separate account at the bank, as it is the parting with, and hence the losing of the identity of the trust fund, and having in lieu thereof no obligation, contract or account upon which is impressed the equitable ownership of the trust. Had this administrator retained these moneys in his own possession, and mingled them with his own funds, so as to lose their identity, and the whole had been lost without his fault, yet we apprehend he would have been liable. Schoemaker v. Hinze, 4 Wis. L. N. 46; s. c., 10 N. W. R. 86. Here the fact that he delivered the moneys to the bank and thus allowed them to be mingled with other funds, destroys their identity as completely as though he had first mingled them with an equal amount of his own moneys, and then deposited the whole in bulk. The deposit, therefore, put an end to the identity of the funds deposited, and the certificate was simply an agreement, taken in exchange for the money, to repay a like amount in currency upon the conditions named. Beyond question, the certificate was negotiable. Klauber v. Biggerstoff, 47 Wis. 551. To all appearances it was the individual property of the depositor, and not of the estate which he represented; and there was nothing on the books of the bank to indicate the contrary. It stood, therefore, precisely the same as though he had loaned the money to an individual at the time supposed to be responsible, and taken his negotiable note therefor without interest payable on demand "in currency" to the order of himself. The making of the deposit and taking the certificate to himself individually was therefore not only an extinguishment of the identity of the money, but an appropriation of it, in law, to his own personal use. This being so, shall the rule be established by this court that administrators, executors, trustees and guardians may insist on settling their accounts by tendering such notes or certificates in lieu of cash, however worthless may be the makers or the bank at the time of settlement? The question is important, and the answer vast in its consequences. To hold the administrator answerable in this case is undoubtedly a great hardship,but to exonerate him from liability is to encourage the mismanagement of trust funds,and to open the door to frauds innumerable,

against those whose age and weakness entitles them to the most rigid protection of the law. The rule, therefore, should not be slackened, even if the question were a new one; much less in view of the authorities cited. It may be said that the remarks of Mr. Justice Paine, in School District v. Zink, 25 Wis. 636, to the effect that the mere substitution of a certificate of deposit payable to the holder of a check on a bank for the check itself, worked no change whatever in the status or title to the fund in bank, is inconsistent with the view we have taken of this case, but in so far as that opinion is in conflict with this decision, it must be regarded as overruled.

For the reasons given the judgment of the circuit court is affirmed.

TURNEY, J., delivered the opinion of the court: After verdict in an action for libel, plaintiff in error moved for a new trial, and read his own atfidavit, stating his grounds as follows: That A. M. Stoddard, one of the jury, after the jury had retired for consultation, stated to it, that to his knowledge, W. L. Trask, who wrote the article in the Ledger, about which this controversy is, had prejudice and malice against the plaintiff, because when he had charge of the European Hotel, the plaintiff had refused to give him free dinners, or free meals, or free board at his house.

That the Public Ledger, which published the article complained of, and of which Whitmore is the owner, had published other articles defamatory of individuals, and that he wanted to stop it; that it had published unjust and false articles about a society of which he (the juror) was a member, and that he had not forgotten it; and that he wanted to punish Whitmore for these things. He further said that the witness who had given damaging testimony as to the character of the plaintiff and of the hotel he kept, he did not beieve; that he had lived at the hotel and knew better, etc. The affidavit further stated that such statements made in the jury room were calculated to mislead and prejudice the jury, and affiant believes,did have an important effect and influence on the jury, in inducing it to yield to Stoddard's suggestions and give a verdict for damages. Without them, he believes the verdict would have been for him, or at least for merely nominal damages.

The affidavit discloses the names of three jurors, from whom the facts of Stoddard's conduct had been learned, but who refuse to voluntarily give their affidavits, but say they will make the statements if called by the court, or as the court may order. The action of the court is set out as follows: "The court refused to permit counsel to examine the said jurors in open court as requested, holding it improper to do so in the absence of affidavits from the jurors themselves, and informed defendant's counsel that the court would wait for an affidavit from a juror, and would consider it, if presented."

The court was then requested to examine the jurors, or any of them, touching the evidence of Stoddard in the jury room. This was refused, the court holding it to be improper in the absence of affidavits of some of the jurors themselves. That a verdict may be attacked and set aside for the misconduct of a juror, established by the testimony of his fellows, is too well established in this State to be disturbed now. We know of no reason in public policy why it should be otherwise. It certainly has a controlling tendency to insure purity and fairness in jury trials. The statements of Stoddard, as disclosed in the affidavit, were calculated to, and, no doubt did, prejudice the jury and incline its minds to a verdict against the plaintiff in error. Treating the affidavit as prima facie true, it is certain that Stoddard was the friend and desperate advocate of the defendant in error, and that a fair and impartial trial could not be had at his hands. A strong presumption arises that his conduct in the juryroom brought about the verdict. This court has several times said that the better practice is to examine the juror in open court. Such course gives the adverse side full opportunity to test the witnesses, and place before the court the facts in their true light. No room is left for sliding over or concealing facts, which, if left out of an affidavit, put on the matter a face wholly different from the truth. In this case, the accusing jurors had refused to make written affidavits; and we know of no rule by which court or counsel could have compelled them to it. It was in the power of the court to have compelled them to answer questions.

In this case, it appears that the affidavit had been filed long enough to have given the plaintiff and counsel ample time to examine it, and to prepare to defend against it, before the action of the court was invoked, or inquiry into the conduct of the offending jurors. This fact excites a decidedly strong suspicion that the facts charged could not be refuted, and we will look to it as a circumstance in the nature of a confession on the part of the plaintiff below of the truth of the charges. Under all the circumstances, we are of opinion the court should have examined the jurors offered or a sufficient number of them, some of whom were present under subpoena, to have shown the truth or falsehood of the facts charged, and their influence upon the jury in arriving at their verdict. It was within the legitimate power

of the court to have compelled the attendance and deposition of each juror. Counsel and parties were powerless to compel written affidavits. Reversed. Judge Cooper dissents.

QUERIES AND ANSWERS.

[**The attention of subscribers is directed to this department,as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.

QUERIES.

4. If a county sends a patient to the State lunatic asylum, and he is kept there at the expense of the county for some years, but after recovery and discharge from the asylum should become solvent, could the county recover of him the amount paid for his use and benefit? J. J. R.

Charleston, Mo.

5. 3d. After the decease of my said wife, all that remains of my property, real and personal, is to be equally divided between my sons, Henry, George and William. 4th. That part coming to William I wish placed in trust, and at his decease, if he leaves no children, payed to his brother Henry." The "property" is mostly of a personal character. What kind of an estate does William take under the above clause of the will? The will was made and probated in the State of Massachusetts. B. Chicago, Ill.

6. In case of sale under power of mortgage of land, he Public Statutes of Massachusetts, ch. 181, sec. 10, provides for recording the notice of sale and affidavit of the person selling, and declare that such affidavit or certified copy thereof shall be admitted as evidence that the power was duly executed. Does not this give to such affidavit an effect greater than a deed has by allowing it to be evidence without proof of execution, and does not the recording thereof make the recording of the deed to purchaser superfluous? Boston, Mass.

I. C. W.

7. In January, 1882, all records, inoluding records of judgments, belonging to the district court of this county, were wholly destroyed by fire. At the t me of the said destruction A had a valid judgment against B in said court unsatisfied. There is no provision in the statutes of this State for the restoration or substitution of court records lost or burned. After the fire A, and without any record of his judgment in existence, orders an execution to issue on his said judg ment. The clerk of said court issues an execution, and in it from his memory recites the judgment. 1st. If the clerk has recited the judgment correctly as it stood at the time of the fire, will the execution stand? 2d. If the memory of the clerk has caused him to slightly err in the amount of the judgment, say he recites it at $72 when in fact in should have been $74 or $70, will such an error under the circumstances be fatal to the execution?

8. A and wife sell eighty acres of land to B. B pays part of purchase money, and A and wife execute deed for land to B and deposit deed with C, and A and B at the same time execute a memorandum in writing setting forth terms which, being performed by B, authorized C to deliver deed to B. The memorandum is signed by A and B; sets forth description of land by quarter, section and range, and sets forth what Bis to pay, and authorizes C to deliver deed upon such payment. No time in memorandum. A afterward in a short time demands deed of C, receives it, and destroys it by thrusting in fire in presence of C. A then deeds the land to his son, who takes with full notice of B's equity. Query: Can specific performance be decreed, the memorandum being set out in bill, but deed only described fully, the original having been destroyed? How does statute of fraud affect contract?

Columbus, Kan.

V.

9. A makes the following provisions in her will: 1st. My funeral expenses shall be paid first of all; next, all my indebtedness. 2d. I further request, after my debts have first been paid, my beloved husband S shall have his maintainance during bis natural life and funeral expenses out of my estate, provided there be sufficient to do so. I further desire that after the death of my husband the remainder of my estate. if any, be divided equally between (naming five persons). Should my personal property not

be sufficient to pay off my indebtedness, my executor may, at his option, dispose of my real estate in such manner that my bequests and desires may be fully complied with." The executors pays the debts with personal property, makes final report and is discharged. The real estate rents for barely enough to maintain S, the husband. Now, has S a life estate in the land, or is his maintenance a mere charge on the real estate, and is his interest in the land subject to execution? K. Kokemo, Ind.

A corporation may sue on a promissory note payable to the order of its agent by name, and describing him as "agt.," and not indorsed by the agent. Parol evidence is admissible to show that the corporation, suing as plaintiff, is the owner of the note. Pacific Guano Co. v. Holleman, U. S. C. C., S. D. Ga., May 15, 1882.

2. APPEAL-FEDERAL COURTS-ACTION BY COMBINATION OF CREDITORS-AMOUNT INVOLVED. Where certain creditors secured by assignment bring a suit on behalf of all creditors secured thereby to set aside a prior assignment, and, on an adverse decision, appeal, the matter in dispute as regard them is simply their proportionate share of the fund that would be realized in the event of success, and not the entire fund; nor can any portion

of the fund that would go to creditors not before the court be taken into account. Chatfield v. Boyle, U. S. S. C., March 6, 1882, 4 Morr. Trans. 81.

3. BANKRUPTCY-PROSECUTION OF LITIGATION IN BAN KRUPT'S NAME.

Inasmuch as an assignment of a claim made more than four months before going into bankruptcy leaves no interest in the assignor to vest in the assignee in bankruptcy, a suit on such assignment in the name of the assignor for the benefit of the transferees is maintainable, and need not be revived in the name of the assignee in bankruptcy. A suit instituted before proceedings in bankruptcy by one who afterwards becomes a bankrupt may be prosecuted in the same form, if the assignee consents thereto, without making the assignee a party on the record; and inasmuch as the assignee in such event is bound by the decision, the debtor is sufficiently protected, and can not set up bankruptcy of the creditor as a defense. Thatcher v. Rockwell, U. S. S. C., March 6, 1882, 4 Morr. Trans. 41.

4. CONVEYANCE-CONSTRUCTION-LEASE FOR LIFE. T & B executed an instrument under seal, signed by two witnesses, and acknowledged by T before a justice of the peace, in which instrument it is covenanted that T leases to B two acres of land (described in the instrument), with the use of water in adjoining lands of T and privilege of conducting it in pipes to a cheese house to be erected on said premises, T reserving enough water to accommodate the stock kept on the farms of T. And B is to build a cheese house on the premises, and agrees to pay T for the use of the premises and the privileges aforesaid, thirty dollars per annum on the first day of October, in each year, while the premises shall be used as and for the manufacture of cheese; and when the premises shall no longer be used for such purpose, the premises, together with the privileges aforesaid, shall revert to T, said B having the privilege of removing all buildings and fixtures put upon said premises by him." Held, that this was a lease to B for life, provided he continued to use the premises for the manufacture of cheese thereon and paid rents, with the right at any time to remove the buildings and fixtures placed on the premises by such lessee. Warner v. Tanner, S. C. Ohio, June, 1882.

5. CONTRACT-EXCHANGE OF LANDS-DUTY OF MUTUAL DISCLOSURES.

Where plaintiff, one party to a contract, acts with full knowledge as to his own property, as well as the other property for which he is bargaining, while defendant, the other party, on account of non-residence, can scarcely be said to know his own property, and knows nothing whatever of the property he is trading for, the plaintiff is held to the strictest and fullest disclosures. Merriam v. Lapsley, U. S. C. C., W. D. Mo., 12 Fed. Rep., 457.

In determining declarations res gestæ, the general rule is, that all declarations made at the same time the main fact under consideration takes place, and which are so connected with it as to illustrate its character, are admissible as original evidence, being what is termed a part of the res gesta-in other words, a part of the thing done." Dills v. May, Ky. Ct. App., April 25, 1882, 2 Ky. L. J. 18. 8. EVIDENCE-TRANSACTIONS WITH DECEASED PERSONS-LIMITS OF THE RULE.

In a suit for an account by a surviving partner against the executor of his deceased co-partner, the survivor is competent to prove that the decedent applied partnership funds to his own use, but statements or personal transactions of the survivor with the decedent must be excluded. Besson v. Cox, N. J. Ct. Errors and App., 35 N, J. Eq. 87, Reporters Advance Sheets.

9. HUSBAND AND WIFE-TITLE OF LANDS PURCHASED, TAKEN IN THE NAME OF THE WIFE-PRESUMPTION.

1. Where lands are bought and paid for by a husband, but the title thereto put in the name of his wife, the ordinary presumption of a settlement, which in this case was fully corroborated by his actions and declarations at the time of the purchase and transfer, can not be rebutted by his subsequent declarations, nor by his present declarations of his intention then. 2. Nor will equity aid him on account of the subsequent adultery of the wife, and his consequent divorce from her therefor. 3. Nor will any possibility of curtesy in the property entitle him to relief. Lister v. Lister, N. J. Ct. Errors and App., 36 N. J. Eq. 49, Reporter's Advance Sheets.

10. JURISDICTION-COMITY OF STATES-RIGHts of FOREIGN RECEIVER.

In a suit in chancery pending in a Kentucky court, wherein the trusteees of an insolvent railroad corporation sought to enforce their rights under certain mortgages of the road and its equipment, the conditions of which had been broken, an application was made for the appointment of a receiver to take charge of and operate the road. Pending this application, certain rolling stock covered by the mortgages was temporarily in Ohio, and while here was seized in attachment by an unsecured Kentucky creditor. The entire property was insufficient to pay the debts secured by the mortgages, or to earn income to pay the interest. The order of the court appointing the receiver, made subsequent to the seizure in attachment, ordered him to take possession of all the property, including that seized, and authorized him to sue in his own name as such receiver, whenever necessary to perform his duties. Held, that the mortgages covered the rolling stock, though temporarily in this State, and the receiver might, under the comity between States, by an action brought in this State in his own name, assert his right to the possession thereof, where such right is not in conflict with the rights of our own citizens nor against the