then, is, does the defense show that the portion of the consideration which is stated to be "forbearing to proceed with the criminal proceedings and abandoning the said prosecution," is illegal.

The defense does not state that the former bill was a forgery, nor does it allege any reasonable grounds to induce either the plaintiff or the defendant to believe that it was such. It does not even state, in general terms, that such reasonable grounds existed, nor that either the plaintiff, or Patrick Shortall, or the defendant, believed the bill to be forged. It even omits to state by whom the allegation of forgery was made. Again, it shows that the prosecution referred to in the plea was never in fact instituted: and, therefore, the words "abandoning such prosecution" must be read as "not instituting a prosecution." The question thus raised is whether the abstaining, or contracting to abstain, from instituting criminal proceedings, in respect of a crime alleged to have been committed, and for which a criminal prosecution has been threatened, is illegal, although it does not appear that the crime was in fact committed, and there are no reasonable grounds for believing that it was; and to determine whether such a contract is illegal or not, we must first ascertain the duty, if any, due by this contracting party to the public.

Now, in the first place, I desire, in consequence of some of the arguments which have been addressed to us, to distinguish from each other two separate grounds of defense-1st, illegality; 2d, extortion or duress. If any part of the consideration be illegal, the contract is incapable of being made the foundation of an action, irrespective of the extent to which that part of the consideration may have influenced the mind of the promisor. If, on the other hand, the part in question of the consideration be not illegal, but simply nugatory or insufficient in itself to support a promise, then the fact of its being alleged to be part of the consideration will not, per se, invalidate the contract, provided the other part of the consideration be sufficient in law. Still, if this nugatory consideration were the principal inducement of the promise, the circumstance may, with others, such as pressure, be relied upon in proof of a plea of extortion or duress. But such a defense is, in no sense, a plea of illegality. The gist of it is (that which in a plea of illegality is immaterial) the effect produced upon the mind of the promisor by the circumstances relied on. The plea here relies not upon pressure, but upon illegality.

In my opinion, the principle upon which contracts of this description are held to be illegal, is, that a prosecution is a proceeding not for the benefit of individuals, but of the public; that the only interest in it which the law recognizes, is that of the public, and that no one can be permitted to barter for money that in which the public alone are interested. It was on this ground that the principle applicable to stopping prosecutions was applied to the withdrawal of an election petition in Coppock v. Bower, 4 M. & W. 361. It was for this reason, also, that in Kier v. Leeman, 6 Q. B. 308, affirmed in error, 9 Q. B. 371, and several

other cases mentioned by Lord Denman in giving judgment there, it was determined that a prosecution for an offense not of a public nature might be lawfully compromised. To determine, then, whether any agreement of this nature is or is not illegal, we must first ascertain whether the public have an interest in the inquiry which it is agreed shall not be instituted or carried on. The public have an interest in every guilty person being brought to justice; and, therefore, in every case in which an offense of a public nature has been in fact committed, an agreement to abstain from instituting a prosecution in respect of it, or to forbear proceeding with a prosecution already instituted, is illegal. Collins v. Blantern, 1 Sm. L. C. 325; Osbaldiston v. Simpson, 13 Sim. 513, and Williams v. Bayly, L. R. 1 H. L. 200, were cases of this description. When I say "every case in which a crime has been in fact committed," I do not mean that in every case strict proof, such as would justify a jury in finding the accused person guilty, must be given. In many cases the acts and conduct of the parties to the agreement may be such as to induce the jury to believe that each of them acted upon the assumption that a crime had been in fact committed; and, in such a case, upon a question of the nature of the agreement, I should be prepared to hold that both parties were estopped from alleging the contrary of that which was its basis. When, although it be uncertain whether any offense of a public character has or has not been committed, there are reasonable grounds for believing that is has been, the, question becomes more difficult. It is unnecessary for the purposes of the present case to decide it; but, for myself, I may say that I see no reason to doubt the soundness of the opinion of Mr. Justice Coltman, in Ward v. Lloyd, 6 M. & Sel. 785, that an agreement to abstain from a prosecution, under such circumstances, would be illegal. But in such a case, also, I conceive that the public have an interest that the truth should be ascertained, and the accused party, if guilty, should be brought to justice. It is this interest which, in the case put (i. e., where there is a reasonable and probable cause), affords a defense to an action for the prosecution irrespective of the motives of the prosecution. There is another class of cases in which the public have obtained an interest in the inquiry, and this irrespective of the actual commission of a crime. I mean where a prosecution has in fact been instituted. In such a case, when the criminal law has been set in motion, a duty is due to the State that nothing shall be done to interfere with the due course of such prosecution, and the public have an interest that it shall be brought to a conclusion in due course of law. When, therefore, a prosecution has been commenced, a contract to terminate it, or, in the language of the old cases, to stifle it, is illegal, and this irrespective of a crime having been committed, or of the reasonable and probable cause of the guilt of the person charged. Such were the contracts in Kirwan v. Goodman, 9 Dowl. 330; Fivaz v. Nichols, 2 C. B. 501, and Kier v. Leeman, 6 Q. B. 308, affirmed 9 Q. B. 371. But, passing from these cases, none of which apply

here, and to which I have referred merely for the purpose of explaining the grounds of my decision, let us come to the question immediately before us. No prosecution has in fact been instituted; therefore, there is no question of stifling or stopping a prosecution. No crime had been committed; no one believed that a crime had been committed. No reasonable grounds were present to the mind of any one, or in fact existed, which could form a foundation for such a belief. There is nothing more than an allegation of forgery made, I will assume, to the holder of the bill, but made by whom-whether by a stranger, by one interested, or by a person with knowledge or without knowledge, supported or unsupported by facts-is uncertain. In such a case the public have no interestin the truth of the allegation being ascertained. It is because the public have no such interest that a prosecution without reasonable or probable cause may be made the subject of an action, if the motive of the prosecutor be an indirect one. Neither can the threat by the plaintiff, per se, create a public interest in the matter. This is, in my opinion, demonstrated that where the debt arises out of a criminal act of the debtor, the civil remedy is suspended only, and that till public justice has been satisfied. Dudley and West Bromwich Banking Co. v. Spittle, 1 J. & H. 14. The foundation of this rule is, that the creditor owes a duty to the public to prosecute, and when that duty has been performed he may proceed for his debt. But where a debt arises out of an act which there is no reasonable or probable cause for believing to be a criminal act, to hold that upon an allegation that the act was criminal the remedy was suspended, would be to force upon the creditor the institution of a prosecution which would in itself be a wrongful act, and might render him responsible in damages.

Upon the whole, I am of opinion that, although there is a public interest that a prosecution already instituted, even without a probable cause, shall be brought to a conclusion in due course of law, there is no such interest in a prosecution being commenced. For these reasons, I am of opinion that the agreement in the present case, not to institute criminal proceedings, was not illegal; and that whilst it was nugatory and insufficient as a consideration to support a contract, it did not avoid a contract for which there were other sufficient legal considerations. I may observe here, that this view is consistent with the decision in Pool v. Bousfield, 1 Camp. 55. There the sole consideration for the extinguishment was the agreement not to move the Queen's Bench. The word "illegal" is no doubt used by Lord Ellenborough; but the facts of that case rendered it unnecessary to draw the distinctions to which I have been obliged to refer. Some reliance was placed by the defendant's counsel upon a passage in Lord Denman's judgment in Kier v. Leeman. There, after referring to Collins v. Blantern, the Chief Justice says: "Of the soundness of that decision no doubt can be entertained, whether the party accused were innocent or guilty of the crime charged. If innocent, the law was abused for the purpose of extortion; if guilty, the law was

eluded by a corrupt compromise, screening the criminal for a bribe." Every word of this sentence is correct. Collins v. Blantern was a case of an agreement to stifle a prosecution already commenced. The discontinuance of that prosecution was the sole consideration for the bond, and as the law recognizes no interest in a prosecution save that of the public, the bond was absolutely without consideration, and the obtaining of it upon a prom. ise to stifle a prosecution was an abuse of the law which might well be described as extortion. But I do not understand Lord Denman as putting extortion or duress as the ground of the decision, or as referring to it for any other purpose than to show that in consequence there was an abuse of the law for private ends.

There were two arguments on the part of the defendant which pressed upon me with considerable weight during the discussion. It is said first (and it is in my opinion clear law), that a contract not to give testimony in a criminal, or even in a civil suit, is illegal, as against public policy; secondly (and here I think is the fallacy of this argument), that such a contract as the present involves an obligation not to give evidence in a prosecution if it be in fact instituted. If I thought that to be the true meaning of the contract, I should be of opinion that it was illegal. But there is a clear distinction between a prosecutor and a witness. It arises every day in actions for malicious prosecution. The present contract is no more than not to prosecute; and if there were a prosecution by another person, evidence given by the present plaintiff could not be held to be a breach.

The second argument which pressed me was that the plaintiff having threatened to resort to criminal proceedings, and thereby obtained the bill now sued on, he ought to be estopped from denying that without which his threat would have been un

justifiable and idle, viz., that the bill was a forgery. I fully appreciate the weight of this argument, and the pressure which may be exercised by unscrupulous holders of instruments alleged to be forged, who, by threats of prosecution, extort from the fears of criminals or others, contracts which otherwise would not be entered into. I see, too, the danger of permitting the validity of the contract to depend upon its being possible to prove guilt at a time after the contract has been performed, and the evidence of that guilt probably destroyed. But, upon full consideration, I think that this threat constituted part of a different line of defense, viz., that to which I adverted in the commencement of my judgment. If we had here a defence of duress or extortion relying upon the threat, and the circumstances under which it was made, as amounting to such pressure as rendered the contract unjust or inequitable, a different question would arise. We should then have to deal, not as we have here, with a matter of illegality alone. We should have to determine to what extent, if at all, the threat prevented the defendant from acting as a free agent; and I confess that in determining the effect which might reasonably be produced upon his mind by a statement of forgery, I should be slow to listen to a statement by the utterer of the

threat that it was one for which there was no solid or reasonable foundation. If the defense here clearly showed that the plaintiff groundlessly had alleged or represented that the former bill was in fact forged; that the representation was made to the defendant, and that the defendant believed that allegation, and in consequence accepted the bill sued upon, it would take much more argument than I have yet heard to convince me that such a defense was bad. These allegations, however, are not in the defense here. It does not rely either upon estoppel or upon pressure. Its sole ground is that the contract was against public policy, and, for the reasons I have already stated, I have been coerced to arrive at the conclusion that it cannot be sustained.

Upon the demurrer, therefore, the judgment must be for the plaintiff. This being so, our view as to the new trial motion is of very little importance, as under any circumstances the final judgment must be for the plaintiff, and as the defense to which the demurrer was taken was filed at Nisi Prius, we could not refuse to give the plaintiff the costs of the trial. I, therefore, prefer not to express any opinion upon that portion of the case. The verdict should, in my opinion, be entered for the plaintiff with costs.

FITZGERALD and DowSE, BB., concurred.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1878.

MANDAMUS AGAINST COUNTY OFFICERS.- Counties in the State of Kansas are bodies corporate and politic, capable of suing and being sued. Their powers are exercised by elective boards of county commissioners. A peremptory mandamus was ordered against one of the boards to compel the levying of a tax to pay a judgment. Held, that the writ was properly directed to the board in its corporate capacity, and that those holding office at the time, as members of the board, would be held individually liable in their natural capacity for any neglect to obey the orders of the court. -Commrs. of Leavenworth Co. v. Sellew. In error to the Circuit Court of the United States for the District of Kansas. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.

REMOVAL OF CAUSES.-After judgment in a case in the State court has been reversed on appeal and a new trial ordered, the right to a new trial must be perfected absolutely before a party is entitled to remove it into the Federal court, under the statute of March 3, 1875. "In Insurance Company v. Dunn, 19 Wall. 214, it was held that, under the act of March 2, 1867, 14 Stat. 568, a cause could be removed from a State court to the Circuit court after a trial and judgment in the State court, if before the removal the first judgment had been set aside or vacated, and the right to a new trial perfected, and in Vannevar v. Bryant, 21 Wall. 43, that after one trial the right to another must be perfected before a demand for removal could be made. In this case, there had been one trial and judgment in the State court before the petition for removal was filed. Upon appeal to the supreme court of the State, an order was obtained reversing this judgment, and remanding the cause for a new trial. As soon as this order of re

versal was made, the railroad company obtained

from the clerk of the supreme court a writ of procedendo, and filed it in the clerk's office of the court below, that court not being at the time in session. This being done, the company filed in the clerk's office below, the court still not being in session, a petition under the act of March 3, 1875, 18 Stat. 470, accompanied by the necessary bond for the removal of the cause to the circuit court. Under the practice in Iowa, a petition for rehearing may be presented to the supreme court at any time within sixty days after the filing of the opinion in the case, and when presented, the court, if in session, or a judge, if in vacation, may order a suspension of the decision until the next term. In this case, before the expiration of sixty days, but after the filing of the writ of procedendo and the petition for removal in the clerk's office below, a petition for rehearing was filed in the supreme court, and an order suspending the decision until the next term obtained. At the next term, the railroad company appeared and moved to dismiss the petition for rehearing, on the ground that the cause had been removed to the circuit court before the petition was filed, and the supreme court had consequently no longer any jurisdiction. The motion was denied, and afterwards upon the rehearing, McKinley, the plaintiff below, having consented to a reduction of the verdict in his favor from $12,000 to $7,000, a judgment was entered in the supreme court for the reduced amount in accordance with the opinion originally filed. We think this brings the case within the rule as laid down in Vannevar v. Bryant. A right to a new trial had not been perfected absolutely when the petition for removal was filed. The supreme court still retained jurisdiction of the cause for the purpose of a rehearing, and when it did rehear and set aside its former order of reversal, the case occupied the same position it would if the final judgment of that court had been the one originally entered. The subsequent judgment operated as a revocation of the order of the court below to proceed, and consequently took the case out from under the petition for removal. We think, therefore, that the supreme court had jurisdiction of the cause when its final judgment was entered, and consequently that there is no error in the record which we can re-examine. The view we have taken of the case makes it unnecessary to consider whether the filing of the petition for removal in the clerk's office, the court not being in session, was sufficient of itself to effect a removal.”— Chicago, etc., R. Co. v. McKinley. In error to the Supreme Court of Iowa. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF MICHIGAN.

January Term, 1879.

RECEIVER PENDING FORECLOSURE APPEAL.An order of the circuit court in chancery denying a mortgagee's motion for the appointment of a receiver pending foreclosure, is interlocutory, and, therefore, not appealable, although the mortgage contains a clause giving the mortgagee, in case of default, the right to take possession and operate the works. This clause, could it be carried into effect, notwithstanding the statute as to a mortgagor's possession, would only operate after default; but the question of default might be the chief one in issue, and the court could not decide it upon motion. Opinion by MARSTON, J. -Beecher v. Marquette & Pacific Rolling Mill Co.

BILL TO QUIET TITLE-PARTIES-MULTIFARIOUSNESS-SALES BETWEEN FATHER AND SON.-Bill by a party in possession to quiet title. Held, 1. That parties who have conveyed all their interests in the premises, and whom the result can not affect, are not proper defendants. This applies to the grantee and heirs of an original owner, the first of whom conveyed the land under a misdescription that was in the deed to him, while the heir quit claimed his own interest. 2. That such a bill is multifarious, because it seeks for relief against titles derived from several sources; all the titles in issue having been originally in one of the defendants, who afterwards conveyed a part of the premises under a purchase alleged to have been made in bad faith. 3. That although the same strictness is not always to be looked for in transfers of property between father and son as between strangers, yet where a claimant to land, whose only title consists of a tax deed and a quit claim from the original owner's heir, who, however, denied having any title, has sold to his son for $100, none of which was paid, a parcel worth $1,000, the burden of proving that this sale was in good faith and for a valuable consideration is on the parties thereto when they are made defendants to a suit involving the title. Opinion by MARSTON, J.Hammontree v. Scott.

RESOLUTION OF APPOINTMENT BY CORPORATION -PAROL EVIDENCE TO MODIFY WRITTEN AGREEMENT. - Declaration on the common counts alone for six months' salary as company superintendent. Plaintiff testified that he was employed at a salary of $125 a month, and continued in such service six months under a resolution of the board of directors, and his counsel then offered an entry of the resolution in the books of the company's secretary, as follows: "Resolved, That be appointed superintendent of for the

term of two years, provided he gives satisfaction to the company, at a salary of $1,500 per annum." The entry then stated his election by ballot. Held, 1. That this being a private corporation with power to appoint a superintendent, the secretary's entry in his proper record book, of the resolution of appointment, was prima facie an authentic act, and the resolution itself admissible to help make out the claim for salary. 2. That where the immediate issue is whether there was a writing covering the contract, it is error to exclude oral testimony bearing on that issue upon an assumption of such writing. 1 Starkie Ev. 731. 3. That the resolution of appointment was prima facie not a contract, and could be withdrawn or altered before acceptance; and it belonged to those mixed transactions where part is in writing and part not, so that oral testimony is not excluded to show the actual establishment of contract relations under it. Sievewright v. Archibald. 17 Q. B. 115; 6 E. L. & E. 286; Thomas v, Nelson, 69 N. Y. 118. 4. That internal discussions in a board of directors before an appointment by them, and for the sole purpose of bringing the body to a determination, is not evidence to fix the terms of agreement with the appointee. 5. That the common counts alone can not sustain a claim for six months' service at $125 per month, on evidence of an express agreement to employ for two years at $1,500 a year, if satisfaction were given. Opinion by GRAVES, J.-Kalamazoo Novelty Mfg. Works v. Macalister.

terminating the contract. Plaintiff brought suit, insisting that there was no sufficient ground for his dismissal. Held, that the requirement of "good cause," as something on which the right to revoke by one or the other party should depend, is, as here introduced, too vague to be fairly intelligible. The case is one where the parties have failed to express themselves in terms capable of being reduced to lawful certainty by judicial effort. As employed, the expression has no kind of meaning which can be defined. Met. on Con. 316; Bishop, § § 22, 581; 2 Par. 56; Domat. Cush. Ed. art. 178, § 2, pt. 1, bk, 1; 1 Chitty on Con. 92, 93. See also Crane v. Partland, 9 Mich. 493; Caswell v. Gibbs, 33 Mich. 331: Greene v. Bateman, 2 Wood & Minn. 359; Smidt v. Tiden, L. R. 9 Q. B. 446, 9 Eng. 379; Hagard v. New England Marine Ins. Co., 1 Sumner, 218; Buckmaster v. Consumers Ice Co., 5 Daly, 313. 2. That the passage in question being ineffective on account of its radical uncertainty, there was nothing to detract from the exercise of the right of revocation as it actually occurred, provided the defendants acted in good faith. Opinion by GRAVES, J.Summer v. Butts.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

January-March, 1875.

MECHANIC'S LIEN-CONVEYANCE OF THE PREMISES.-1. Where a petitioner for the enforcement of a mechanic's lien has furnished all the lumber for the erection of a building upon premises which belonged to the respondent, under a contract with the latter, the lien having once attached, under the statute (Gen. Sts., ch. 156, § 1), continues until all the materials called for by the contract and used in the construction are furnished, and may be enforced if the person to whom the debt is due has filed a proper statement as required by the statute; and such lien is not affected by the fact that after the beginning and before the completion of the delivery of the lumber, the respondent has granted the premises by deed duly recorded. 2. The statement required in such case was held to be properly filed within thirty days after the last articles were delivered, and after the recording of the deed. Opinion by ENDICOTT, J.-Gale v. Blaikie.

PARTNERSHIP-FRAUD-EQUITY.-1. Where negotiable promissory notes have been given by one member of a partnership in the firm name, without the knowledge and in fraud of his copartners, and such fraud was known and participated in by the defendant, who holds the notes, and the partnership is dissolved and its affairs are in course of settlement in this court, and its effects in the hands of a receiver; as the plaintiff can not try the question of the partnership liability at law until such time as the holder of the notes may see fit to bring his action, equity will afford relief by ordering such holder to produce and cancel such notes, and will enjoin him from enforcing them. 2. But where such notes have been transferred to a bona fide holder, and an action at law has been brought upon them by such holder against the firm, which is still pending, equity will not require the defendant, by whose wrong such notes were transferred, to give bond for the payment of the judgment to be recovered in the pending action at law, orto pay the note and surrender it for cancellation, but will leave the plaintiff to pursue his legal remedy, which is full and adequate against the parties to the fraud. Longman v. Pole, 1 Mood. & Walk. 223: Story on Part. § 256. Opinion by COLT, J.-Fuller v. Percival.

4

SUPREME COURT OF WISCONSIN.

March 1879.

ONE SUIT IN EQUITY WILL NOT LIE to enjoin the execution of process issued in another such suit, whether the second suit is brought in the same or another court, by a party or by a stranger to the first. Opinion by RYAN, C. J.-Endter v. Lennon.

REPLEVIN-PURCHASER AT FORECLOSURE SALE.1. A purchaser at a foreclosure sale can not, before the sale is confirmed, maintain replevin for crops growing thereon at the time of sale, but afterwards severed therefrom by the person in possession of the land. 2. Whether such purchaser could maintain the action before acquiring possession of the land under the sale, not here determined. 3. Whether a tenant under the mortgagor, in actual and open possession of the premises when the foreclosure suit was brought, but whose lease was not recorded, is bound by the judgment, is also left undetermined. Opinion by COLE, J.Wohler v. Endter.

INSURANCE POLICY-FORFEITURE-INSURABLE INTEREST-WAIVER.-1. When a forfeiture of an insurance policy is alleged on merely technical grounds, not going to the risk, the contract of insurance will be upheld, if it can be without violating any principle of law. 2. Both mortgagor and mortgagee of chattels have insurable interests therein; and a provision in a policy of insurance issued to the mortgagor, by which any loss is payable to the mortgagee as his interest may appear, is valid. 3. Where the interest of mortgagees in insured chattels exceeded the insurance, and, by the terms of the policy (taken by the mortgagor), the amount of any loss would become payable to the mortgagees, the legal title to the policy, as well as to the chattels, was in the mortgagees, and the mortgagor could not (by a general assignment in bankruptcy or otherwise) transfer the title to either, so as to give effect to a clause in the policy which provided that if any change should take place in the title to the chattels, by legal process, judicial decree or voluntary transfer or conveyance, or if the policy shonld be assigned before a loss, without the insurer's consent indorsed thereon, it should be void. 4. Whether such a provision for forfeiture of insurance as that above stated is not void as against public policy, quære. 5. Upon such forfeiture being incurred, the policy is voidable only at the election of the insurer; and the forfeiture may be waived by laches of the insurer misleading persons interested in the policy to their prejudice. And in this case, if, by any act of the mortgagor, a forfeiture had been incurred on which the insurer meant to rely, good faith would have required it to notify the mortgagees, to give them an opportunity to protect themselves by other insurance. Opinion by RYAN, C. J.-Appleton Iron Co. v. British Am. Ass. Co.

jurisdiction. The excess of the verdict above the jurisdiction of the justice only is void, and a remittitur for such excess may be properly filled by the plaintiff, and judgment be taken for the sum demanded. Opinion by WORDEN, J.-L. N. A. & C. R. Co. v. Breckenridge.

INFANT-DISAFFIRMANCE OF DEED-SECOND CONVEYANCE. It has been held by this court (7 Ind. 398) that an infant's conveyance of land may be disaffirmed on his attaining his majority, without entry, by conveying the land to another person, and that it is not necessary to return the purchase-money to make such disaffirmance effectual. But we are of opinion that to make a second deed effectual for all purposes as a conveyance, the grantor must, at the time of its execution, be either in the actual or constructive possession of the premises conveyed by it. Where lands conveyed by a minor are in the adverse possession of some one else, whether under his deed or otherwise, when he arrives at full age he must first obtain, by entry or other proper proceedings, the possession of such lands before he can make a second deed that will be effectual to put the grantor into possession. But while a second deed made by a minor, after he arrives at full age, will not be operative as against a third person in adverse possession, it is still good between the parties and as to all the rest of the world, except the person in such adverse possession, and the grantee may sue in the name of the grantor for the recovery of the premises. Opinion by NIBLACK, J.-Riggs v. Fisk.

DESCENT RIGHT OF WIDOW TO ALIENATE HER REAL ESTATE.-On the death of George Trindle his real estate, under the law of this State, descended, one-third to his wife and two-thirds to his children living. Partition was made between the widow and children, and a third set apart to the widow. This became the absolute property in fee of the said Harriet Trindle. While she was still a widow she conveyed said land by deed in fee to one Learned, who afterwards reconveyed the same to said Harriet, after she had married James H. Nesbitt. Held, that while Harriet remained a widow she had the right to dispose of said property either for or without a consideration. Her motives in making the conveyance were not material, and she could not be chargeable with fraud upon her children by conveying it without consideration, because they had no legal interest in or, at that time, right to it. She did so dispose of it, and subsequently acquired it by a new title. After that she did not hold the land by virtue of her previousmarriage, and the restriction upon her right to alienate, contained in section 18 of the statute of descent, ceased to be operative simple under the conveyance from Learned, and under upon it. At her death, she owned said land in fee the law of this State, on her decease, leaving a husband and children, one-third of said land descended to her said husband, and two-thirds to her said children. Reversed. Opinion by PERKINS, J.-Nesbitt v. Trindle.

GUARDIAN-CONVERSION-SUIT ON BOND.-1. The use by the guardian of the money of his ward in his own business is a conversion of such money to his own use, for which he becomes liable on his bond. The selling or assigning away the property, including choses in action of the ward, by the guardian for his own use, is equally a conversion of the assets of his ward, for which he is also liable on his bond. 2. Where the assets converted are the proceeds of real estate of the ward, only the additional bond given to secure such proceeds is rendered liable by such conversion. 3. Where a guardian has converted the assets of his ward, redress must be sought upon his bond in force at the time of the conversion. When a new bond is given in place of the original, the liabllity on such new bond is prospective only. 4. In a suit on such bond