administrators, it is provided that "the accounts of guardians or trustees shall be audited and stated by the surrogate, and reported to and finally settled and allowed by the orphans' court in manner aforesaid."

From the generality of the terms here used, it would seem to have been the legislative purpose to put under the age and control of this court the accounts of every species of trustees, whether appointed by will or otherwise. Nor does the jurisdiction thus conferred seem to have been in any way restricted or curtailed by the repealing and superseding act of April 16, 1846, to be found in the Revised Statutes vol. 1, p. 205- for the latter act substantially reproduces the jurisdictional clauses of the former one.

In the Revision of 1874, in the act respecting the orphans' court, the language defining the jurisdiction has been somewhat modified, and while there can be no doubt that such court has been invested with the power of settling the accounts of testamentary trustees, there may be some uncertainty with respect to the question whether such power has not been restricted to that class of officers alone.

For present purposes it is enough to know that the accounts of these administrators, who are ex officio testamentary trustees, were properly cognizable before the orphans' court.

The result is that the decision of the surrogate-general should be reversed with costs, and the case remitted, in order that a decree may be made conforming to the views of this court as above expressed.

BOARD OF LICENSE AND EXCISE OF THE CITY OF TRENTON v. CLARKSON. March, 1887.

In error to the supreme court.

S. G. Narr and W. T. Johnson, for plaintiff in error. James Buchanan, for defendant in error.

PER CURIAM. We are of the opinion that the judgment in this case should be affirmed for the reasons given by the supreme court.

T. N. McCarter, for plaintiff in error. G. Collins, for defendant in error.

PER CURIAM. We find no error in the record in this case. The judgment will be affirmed.

RANKIN V. INGWERSEN.

March, 1887.

Error to the supreme court.

DIXON, J. After the opinion of the supreme court in this case was

VOL. XI.- 44

rendered, a second trial was had, on which a substantially different state of facts appeared, giving rise to a different question of law. On this legal question I think the present judgment is erroneous.

RANKIN V. INGWERSEN.

Error to the supreme court.

March, 1887.

John Linn, for plaintiff in error. W. A. Lewis and J. D. Bedle, for defendant in error.

RUNYON, Chancellor. The charge in this case was in accordance with the decision of the supreme court upon the rule to show cause why the first verdict should not be set aside, and a new trial ordered. Ingwersen v. Rankin, 18 Vr. 18. I concur in the views then expressed by that court, and, therefore, am of opinion that there is no error in the record before us.

The judgment should be affirmed.

INHABITANTS OF THE TOWNSHIP OF EATONTOWN v. INHABITANTS OF THE
TOWNSHIP OF SHREWSBURY.
March, 1887.

In error to the supreme court.

J. Steen, for plaintiffs in error. J. S. Applegate, for defendants in

in error.

PER CURIAM. The judgment in this case should be affirmed for the reasons given by the supreme court.

SUPREME JUDICIAL COURT OF MAINE.

TUFTS v. SYLVESTER.

March 1, 1887.

STOPPAGE IN TRANSITU - INSOLVENCY OF PURCHASER.

The seller's right of stoppage in transitu, after the insolvency of the purchaser and before the appointment of an assignee, cannot be defeated by the insolvency messenger receiving the goods from the carrier, after the purchaser had refused to receive them in order that the seller might reclaim his property.*

S. Clifford Belcher, for plaintiff. H. L. Whitcomb, for defendant. PETERS, Ch. J. The plaintiff sold a bill of goods to be shipped at Boston, to the buyer at Farmington, in this State. The buyer, becoming insolvent after the purchase, countermanded the order, but not in season to stop the goods. Before the goods came he had gone into insolvency, and a messenger had taken possession of his property. An express company bringing the goods tendered them to the buyer, who refused to receive them, but the messenger accepted the goods from the carrier, paying his charges thereon. After this, but before an assignee was appointed, the seller made a demand upon both the carrier and the messenger, attempting to reclaim his goods. The question upon these facts is, whether the goods were seasonably stopped in transitu to preserve the plaintiff's lien thereon. We think they were. The right of stoppage in transitu is favored by the law.

It is clear that the goods did not go into the buyer's possession. He refused to receive them. He had a moral and legal right to do so. Such an act is commended by jurists and judges. He in this way makes reparation to a confiding vendor. "He may refuse to take possession," says Mr. Benjamin, "and thus leave unimpaired the right of stoppage in transitu unless the vendor_be anticipated in getting possession by the assignee of the buyer." Benj. Sales, § 858. In Grout v. Hill, 4 Gray, 361, SHAW, Ch. J., says: "Where a purchaser of goods on credit finds that he shall not be able to pay for them, and gives notice thereof to the vendor, and leaves the goods in possession of any person, when they arrive for the use of the vendor, and the vendor on such notice, expressly or tacitly assents to it, it is a good stoppage in transitu, although the bankruptcy of the vendee intervene." See same case at page 369; 1 Pars. Cont. *596 and cases.

The decision of the case, then, turns upon the question whether the messenger could accept the goods and terminate the lien of the vendor. We do not find any authority for it. A bankruptcy messenger acts in a passive capacity-is intrusted with no discretionary powers-acts under mandate of court, or does certain things particularly prescribed by the law which creates the office is mostly a keeper or defender of property, a custodian until an assignee comes and he can neither add to nor take from the bankrupt's estate. He is to take possession of the "estate" of the insolvent. These goods had not become a part

*Matter of Knight, 36 Eng. Rep. 772.

of the estate. He was not at liberty to affirm or to disaffirm any act of the insolvent. The law imposes on him no such responsibility. Chancellor KENT says that the transit is not ended while the goods are in the hands of a carrier or middleman. A messenger has no greater authority, ex officio, than a middleman, excepting as the insolvent law expressly prescribes. In Hilliard's Bankruptcy, page 101, the office of a messenger is likened to that of sheriff under a writ; he becomes merely the recipient of property. The title of the assignee, when appointed, dates back of the appointment of a messenger. Until appointment of assignee, the bankrupt himself is a proper person to tender money for the redemption of lands sold for taxes. Hampton v. Rouse, 22 Wall. 263. See Stevens v. Palmer, 12 Metc. 464. The case cited by the plaintiff Gates v. Hoile, 2 Neb. 186-supports his contention. Defendant defaulted.

WALTON, VIRGIN, LIBBEY, EMERY and HASKELL, JJ., concurred.

A statute giving a lien for feeding and sheltering animals provided for its enforcement in the same manner "as liens on goods and personal baggage by innholders or keepers of boarding-houses." The remedy applicable to liens on goods and personal baggage was changed by a subsequent statute. Held, that the later statute did not repeal or change the remedy applicable to liens on animals. Trespass by the owner of three colts against a deputy sheriff who sold them upon an execution issued to enforce a judgment in rem.

Wilson & Lumbert, for plaintiff. J. O. Bradbury, for defendant. PETERS, Ch. J. We think the in rem judgment, which is attacked by the plaintiff in this case, was not erroneously granted. The statute gave a lien on animals for feeding and sheltering them, the lien "to be enforced in the same manner as liens on goods and personal baggage by innkeepers or keepers of boarding-houses."

That meant enforcement in the manner then existing, not as it might be in the future by a new enactment. A reference was the readiest way to describe the process to be employed for enforcement. The repeal of the process in the one case does not repeal the process in the other, there being no words in the act of repeal including the latter. Suppose the innholder's lien had been wholly abrogated. Would it be pretended that the lien on animals would fall with it? There is no dependency between the two classes of liens or their enforcement. 76 Me. 443, by implication so settles the question.

The act affecting this case was passed before the present Revised Statutes, which retain on this subject a reference to a law after it has been changed or repealed. The complication needs the notice of the legislative department to prevent misadventure.

Plaintiff nonsuit.

WALTON, DANFORTH, EMERY, FOSTER and HASKELL, JJ., concurred.

TRIAL - ERRONEOUS INSTRUCTION AS TO Burden of ProOF EXCEPTION.

When the presiding judge inadvertently instructs the jury that the burden is on the plaintiff, when he meant to say defendant, and his attention is not called to the mistake, though obvious, exceptions will not lie.

DEED-CONDITION BROKEN.

An entry for condition broken upon real estate, where possession is actually taken and held, speaks for itself; it is unimportant that a witness to the entry did not know the purpose of it.

AGREEMENT TO SUPPORT - ARBITRATION OF CONTROVERSY.

An agreement in a deed, given for the support of the grantor, that, if any controversy arise in relation to the support, it shall be submitted to an arbiter mutually agreed upon, is not binding upon the grantor.

CONTRACT DEPRIVATION OF ACCESS TO COURTS.

A man cannot, by agreement, deprive himself of free access to the courts, in matters that go to the substance of his cause of action.

Peaks & Everett, for plaintiff. for defendants.

Ephraim Flint and Josiah Cusby,

PETERS, Ch. J. This is a real action between a son and father, another defendant being coupled with the father, where the question involved the right of possessing a homestead which the father conveyed by a conditional deed to the son to secure a life support. The son claims that he has by his deed a right to the possession, and the father claims that the right which the son had has been forfeited for condition broken.

An exception is taken, that the judge said to the jury that the burden to show forfeiture was on the plaintiff -- the son when he meant to say defendant instead of plaintiff. It is too late for the plaintiff to urge an objection. He should have called for a correction at the moment or before the jury retired. It must have been understood to be an inadvertence. The judge was describing the duties imposed upon the plaintiff and accidentally said, "the burden is upon the plaintiff-meaning the defendant to show that he has failed to do it." No one could suppose the plaintiff was required to show his own default. Besides, the judge afterward said that the burden was on the defendant, and such must have been the drift of the whole charge.

Án objection is urged upon the exceptions and motion, that a sufficient re-entry was not effected by the defendant, because a witness called to observe the act did not know the purpose of it. But his presence was not at all necessary. The plaintiff moved away from the premises, virtually abandoning them, and the defendant's agent took repossession for condition broken. The grantor took possession of the farm and held it until his conveyance to the other defendant. The evidence upon that point is plenary.

The deed from father to son contains a clause providing that if a controversy arise," the parties, or either of them, may submit the matter to arbitration, the arbiter to be mutually agreed upon." The judge instructed the jury that this would not bar the defendant from setting up forfeiture unless the plaintiff asked for a reference and was refused.