ment rendered in such action, unless such judgment shall have been paid, or shall be immediately paid, together with the costs upon such execution, upon the making of such request, or the return of such goods and chattels." The principal difficulty which arises in regard to the solution of the question we have suggested is that said bond contains two conditions, viz.: First, a condition to. pay the judgment which shall be recovered in the action, as provided in said section 16; and, second, to return to the officer, upon request, the goods attached, in as good order and condition as when surrendered, in case final judgment is rendered in favor of the plaintiff, as provided in said section 20. Either one of these conditions would, of course, have been sufficient. But the obligors, instead of making any election, and giving either a bail bond, as they might have done by inserting the first condition only, or a delivery or forthcoming bond, by inserting the second condition only, have given one containing both of said conditions; that is, strictly speaking, the obligors have bound themselves both to pay the judgment, and also to return the goods. But, inasmuch as the conditions in a bond are to be taken most strongly in favor of the obligors, (Pearce v. Maguire, 17 R. I. 61, 20 Atl. Rep. 98,) we think these conditions should be construed as in the alternative, and hence that the bond may be satisfied by the performance of either. In order to better determine the effect of said bond upon the attachment, however, it may be useful first to ascertain whether it is a statutory or a common-law bond. We think it must be held to be a common-law bond; for, although it contains internal evidence of the intention of the obligors to make it a statutory bond, yet, as it does not conform to either of the provisions aforesaid, but embraces them both, thereby making a condition not contemplated by either, we do not think it can be held to be a statutory bond. Official bonds must conform to the statute by which they are authorized; and, if they do not, they are invalid altogether, or valid only as common-law bonds. Murfree, Off. Bonds, § 41; Adler v. Green, 18 W. Va. 201. This bond is clearly valid, however, as a common-law bond. It violates no statute, and was made upon a valid and lawful consideration. Central Mills Co. v. Stewart, 133 Mass. 461; Palmer v. Vance, 13 Cal. 553-556; Smith v. Fargo, 57 Cal. 157; Bunneman v. Wagner, 16 Or. 433, 18 Pac. Rep. 841.

Having determined the character and validity of said bond, then, we are next brought to the consideration of the effect thereof. And, first, what was the evident purpose of the obligors in giving said bond? Clearly, it was to release the goods from attachment, and thereby enable the owner thereof to go on with his business. That the obligors so interpreted and understood it is evident from the subsequent conduct of said defendant Atwater, in proceeding to sell and dispose of

said goods in the regular course of his business as aforesaid; and that the sheriff so understood it is also evident from his conduct in immediately surrendering said goods to the said Atwater. As said by Durfee, C. J.,

in Pearce v. Maguire, supra: "There must be many cases in which the purpose of procuring the surrender of the goods, understood on both sides, is that they may be used up or sold, so that it will be impossible to return them." We are forced to the conclusion, therefore, that the giving of said bond, coupled with the conduct of the parties in connection therewith, worked an absolute dissolution of said attachment, and that such was the understanding and intention of the parties to said bond. In other words, said bond was given and accepted as a new security, and was intended to and did take the place of the attachment lien. The officer was not compelled to surrender the goods on being tendered such a bond, it not being in compliance with the statute as aforesaid; but by surrendering them, and accepting said bond in lieu thereof as he did, he put it out of his power in any circumstances to compel their return to him, and thereby discharged his attachment thereon. Such surrender of the goods ipso facto works a dissolution of the attachment, and from that moment reinvests the defendant with the absolute control thereof. See Pomroy v. Kingsley, 1 Tyler, 294.

The obligors have not performed either of the conditions contained in said bond, but claim to be discharged therefrom by reason of the fact that the debtor, within 60 days after said attachment, made an assignment as aforesaid, which dissolved said attachment, and that thereupon all liability of the said sheriff to the plaintiff in said original action, growing out of said attachment, immediately ceased. Whatever might have been the effect of said assignment upon the attachment in question, and incidentally, also, upon the rights of the obligors in said bond, if it had been given under the provisions of said section 20 of chapter 207, it is clear that it can have no effect in this case, as, there being no attachment in existence for it to operate upon, the making thereof had no effect upon the rights of the plaintiff under said bond.

But the defendants further contend that the plaintiff, by accepting a dividend from the assignee as aforesaid, has elected to accept of the provisions of said assignment, and hence cannot claim a forfeiture of said bond. Or, to state the claim as it is put in the defendants' brief: "A creditor secured by an assignment of property, voluntarily executed by the debtor, may elect whether he will accept its provisions, or will assert his rights, independent of it; but he must accept or reject it as an entirety, and cannot accept it in part, and repudiate it in part. He cannot claim both under and against it." The doctrine thus stated is undoubtedly cor rect, but we fail to see its applicability to

the case at bar. In Hatchett v. Blanton, 72 Ala. 423, which the learned counsel cites in support of the proposition aforesaid, the law is clearly stated as follows: "It cannot be doubted that, when a debtor voluntarily assigns property for the security and benefit of creditors, if the creditors choose to accept the assignment they must abide by its terms and provisions. They must take it as an entirety. They cannot accept in part, and repudiate in part. Perry, Trusts, § 596; Burrill, Assignm. (3d Ed.) § 479. The creditor may have rights with which the assignment, so far as it confers rights upon others, is inconsistent. The assignment may derogate from, instead of extending to, him the measure of right to which he is entitled. If that be true, he must elect whether he will accept the assignment, or whether he will reject it, and stand upon the right he may have independent of it. He cannot elect to claim under the assignment the rights given by it, and repudiate it so far as it passes rights to others which are inconsistent with independent, distinct rights to which he may be entitled." We do not understand that the creditor, by pursuing the obligors on said bond, after having received his pro rata dividend under said assignment, is thereby claiming both under and against said assignment; that is, he does not thereby seek to ratify it in part and repudiate it in part. By accepting the dividend from the assignee, the creditor doubtless ratifies the assignment, and is estopped from subse quently claiming that it is, for any reason, invalid, unless, at any rate, he first restores the dividend to the assignee. Babcock v. Dill, 43 Barb. 577, 584; Bump, Fraud. Conv. 458, and cases cited in note 4. But the acceptance of such dividend cannot prevent the creditor from asserting an independent and distinct claim against others, the assertion of which in no wise affects the assignment or the other creditors. The bond in suit is not one of the "securities" referred to in section 15 of said chapter 237, nor does it affect or prevent the equal distribution of the estate, which is the main object of the insolvency act. Bank v. Heintzeman, 15 R. I. 431, 8 Atl. Rep. 78. As well stated in plaintiff's brief: "Every payment by a debtor to a creditor, who has reasonable cause to believe the debtor insolvent, and every security given under like circumstances to such creditor which creates a lien upon the debtor's estate,-like a mortgage, for instance,-if made within the sixty days before the assignment, are declared void. But a security in the form of a promissory note with an indorser thereon, or a bond with sureties, is unaffected by such assignment, inasmuch as the estate of the debtor is not thereby absolutely or conditionally appropriated to a creditor so as to prevent its equal distribution." "All that has taken place is that some person or persons have voluntarily become responsible for certain

existing obligations of the debtor, with the right to be subrogated to all of the rights of the original creditor against the debtor and his estate, in the event of that debtor's failing to satisfy the obligation to such original creditor. No other creditor has been injured by the giving of the note or bond, for the estate of the debtor is as available to him as before the note or bond was given. 'Securities,' in section 15, can only refer, therefore, to such security as creates a lien on the debtor's estate, and by its existence tends to defeat the purpose of the insolvency act." The contention of the defendants that "if the bond stands as a common-law bond, on chancerization after judgment, the plaintiff (sheriff) can show no damages due to himself," is perhaps technically true; yet, as he is not suing for himself, but as trustee for the attaching creditor, he is clearly entitled to recover such damages as said creditor has sustained. The defendants' demurrer to the plaintiff's replication is overruled.

(18 R. I. 324)

WILCOX v. CLARKE. (Supreme Court of Rhode Island. June 14, 1893.)

STATUTE OF LIMITATIONS-NEW PROMISE.

A general promise by a debtor to pay "something on account," without specifying the debt on which the payment is to be made, is sufficient, in an action by the creditor, to take the case out of the statute of limitations, unless the debtor proves that the promise relates to a debt other than the one in suit.

Action by Charles W. Wilcox against William C. Clarke. There was a judgment of nonsuit, and plaintiff moves for a new trial. Granted.

Albert B. Crafts, for plaintiff. Clarence A. Aldrich, for defendant.

MATTESON, C. J. This is assumpsit on book account to recover money claimed to be due the plaintiff for fees as a deputy sheriff, for the service of writs at the request of the defendant's intestate. The defendant pleaded, besides the general issue, the statute of limitations, to which the plaintiff replied a new promise. At the trial the plaintiff put in testimony that the defendant's intestate had within five years previously promised the plaintiff to "pay him something on account in a few days, if he would wait for him." The court, on motion of the defendant, granted a nonsuit. The plaintiff excepted to the ruling granting the nonsuit. The question raised by the exception is whether a general promise to pay something on account, not specifying or identifying the debt on which the payment is to be made, is sufficient to take the debt out of the statute of limitations. The defendant. contends that it is insufficient, and that the burden is on the plaintiff to show affirmatively, not only a new promise, but that it applies distinctly to the debt in suit. We

mode of furnishing names to the council from which to make a selection. It would apparently be their duty to make the appointment, whether the lists were presented to them or not. Petition denied and dismissed.

(18 R. I. 325)

BUCKLIN et al. v. CREIGHTON et al. (Supreme Court of Rhode Island. June 21, 1893.)

WILLS-LIFE ESTATE.

Testator bequeathed money in trust to pay the income to C. for life, with power to apply the principal to his support, if necessary, and after his death to turn over the trust estate to "his heirs at law, their heirs and assigns, for their own use." Held, that C. took only a life estate.

Bill by Simon S. Bucklin and others against Lydia F. Creighton and others for a construction of the will of Sarah Halsey, deceased. Sarah Halsey, by her will, proven before the municipal court of Providence, sitting as a court of probate, October 11, 1864, bequeathed certain sums of money to the complainants, and to the survivor of them, in trust, with powers of management, to pay the net income to her nephew James Hamilton Creighton, during his life, and further provided "that the said trustees or their successors may at any time, and from time to time, when they may deem it to be necessary for the comfortable support and maintenance of my said nephew, whether the necessity arise from sickness or other cause, appropriate from the capital or principal of the trust fund or estate held for his use such a portion thereof for his support as they may think the necessity of the case requires." A codicil to the will, proven with it, gave to the trustees full powers to make partition and exchanges, and to mortgage or sell any of the investments of the trust fund, and also provided that "the moneys arising from any such mortgage or sale, or received for equality of partition or exchange of said trust estate, or so much thereof as said trustees or, trustee for the time being may deem expedient, they or he may pay over to, or in any manner apply to the support, use, or benefit of, my said nephew." The will also provided that "upon the decease of my said nephew all the property and estate then holden in trust for his use shall be conveyed to his heirs at law, their heirs and assigns, for their own use." James Hamilton Creighton died July 12, 1888, intestate, leaving a widow, but no children. His heirs at law and next of kin were a brother, and the children of a deceased brother. The trustees filed this bill to determine the disposition of the residue of the trust funds in their hands at the death of James Hamilton Creighton.

James Tillinghast, William R. Tillinghast, and Theodore F. Tillinghast, for complainants. Charles N. Judson and Samuel T. Douglas, for respondents.

MATTESON, C. J. This is a bill by trustees for instructions, and for an interpleader between the respondents. The question presented for decision is whether, under certain trusts contained in the will of Sarah Halsey, deceased, James Hamilton Creighton, named therein as beneficiary, took an absolute interest in the property held in trust, or a life estate merely, the remainder passing on his decease to his heirs at law. We are of the opinion that he took a life interest merely. While it is true that the fact that something remains to be done, namely, that a conveyance of the property is to be made by the trustees, does not necessarily take a case out of the operation of the rule in Shelley's Case, the law may be regarded as settled that when a testator, instead of passing the legal title by his will, so leaves it that the parties may have to resort to equity to have the benefit of it, then, even if the legal operation of the words constituting the trust would convey a fee simple or fee tail to the first taker, if there is language in the will showing a different intention the court will direct the conveyance so as to carry out the intention, and not the strict rule of law. Angell, Petitioner, 13 R. I. 630, 632; Tillinghast v. Coggeshall, 7 R. I. 383, 392, 393; Tallman v. Wood, 26 Wend. 9, 18; Wood v. Burnham, 6 Paige, 513, 518. In the case at bar, though the form of the gifts to the complainants in trust for the use of the cestui, with the direction that on his decease all the property and estate then holden in trust for his use shall be conveyed to his heirs at law, their heirs and assigns, for their own use, is such as might bring them within the rule in Shelley's Case, yet the intention of the testatrix that he should take a life interest only, instead of an absolute interest, is plainly manifested, and therefore the rule is not to be applied. The estate is given to trustees for his benefit, who are authorized, from time to time, when they may deem it necessary for his comforta ble support, whether the necessity come from sickness or other cause, to appropriate from the capital or principal of the trust fund such portion as they may think the necessity of the case requires for his support. Again, it is provided that if he shall alienate, or in any manner dispose of or anticipate, the rents, profits, interest, or income, directed to be paid to him, or if by reason of his bankruptcy or insolvency, or other reason, such rents, profits, interest, or income can no longer be personally enjoyed by him, but would belong to or become vested in some other person, that thereupon the trust, as to such rents, profits, interest, or income, shall cease during the rest of his life, and they shall be retained by the trustees, and added to the principal of the trust estate. It is clear from these provisions that the purpose of the testatrix was to secure the trust estate for the benefit of the cestui during his life, and to protect it for his enjoyment, not only against his creditors, but also against

himself. This she could accomplish only by securing to him the rents, profits, interest, and income during his life, and providing against his anticipation or alienation of them. If the absolute equitable estate in the trust property had been given to him, the clauses authorizing the trustees to apply the principal of the trust fund to his support, if necessity required it, and restricting his anticipation or alienation of the income, and providing for its forfeiture in the contingencies specified, would have been useless or unavailing, since, having the entire equitable estate, he could have compelled a conveyance of the legal estate to himself, or his creditors could have subjected the property in the hands of the trustees to the payment of his debts. Counsel for the administratrix relies on Taylor v. Lindsay, 14 R. I. 518. That was not the case of a will, however, but of a trust deed, in the preamble of which the settlor declared, as his reason for making it, that he had certain real and personal property which he was desirous of having conveyed in trust for the sole benefit and use of himself. The deed conveyed the property to the complainant in trust to pay the debts of the grantor out of the income and profits thereof, if sufficient, and, if not, from the property, and subject thereto to pay the rents, profits, and income to the grantor or his order, for his benefit or for his family, etc., and provided that in case of his decease the trust should terminate, and the property remaining in the hands of the trustees should be conveyed as he should by his last will and testament direct, and in default thereof to his heirs at law. The settlor died intestate. It was held, in accordance with the plain intent of the deed, that the settlor took an equitable estate in fee in the real estate, and that the personal estate being conveyed in the same clause, and there being nothing to indicate a different intention in relation to it from that manifested concerning the real estate, he also took the entire equitable interest in the personal estate, the rule in Shelley's Case being applicable by analogy to the grant of the personal estate. Though the mere form of the grant in that case was similar to that of the devise and bequests in the will before us, the cases are very unlike in their other essential features. We decide that the fund remaining in the hands of the trustees should be paid to the heirs of James Hamilton Creighton, and not to his administratrix, and instruct the complainant accordingly.

(66 N. H. 611)

SMITH et al. v. SMITH.
SAWYER v. SAME.

(Supreme Court of New Hampshire. Grafton. July 31, 1891.)

LEVY-SUFFICIENCY OF DESCRIPTION. A levy upon land described thus: "Commencing on the line between T. and J. on the west side of the county road, running south 33

degrees west, 25 rods to a parallel line running west 55 degrees north to the west line of the farm, and the same course to the river," (the J. lot being on the northerly side of the T. lot, and the county road running through both lots nearly north and south, and the river being on the easterly side of the lots,)-is void for uncertainty.

Trespass by Thomas J. Smith and Willie Smith against John B. Smith, and by Leroy A. Sawyer against the same, both actions be ing based upon the same wrongful acts. The liability of the defendant was estab lished, and the question reserved is which of the plaintiffs is entitled to the damages. Judgment for plaintiffs in the first action, and for defendant in second.

The plaintiff in the second action claims title under a levy upon an execution which describes the land levied on as follows: "Commencing on the line between Thomas J. Smith and John B. Smith on the west side of the county road, running south 33 degrees west, 25 rods to a parallel line running west 55 degrees north to the west line of said farm, and the same course to the river." The John B. Smith lot bounds the Thomas J. Smith lot on the north. The county road runs nearly north and south through both lots, and the Pemigewassett river is on the easterly side of them. The plaintiffs in the first action claim title under the debtor against whom the levy was made, and contend that the levy is void for uncertainty.

Burleigh & Adams, for plaintiff Thomas J. Smith. J. L. Wilson, for plaintiff Leroy A. Sawyer. J. C. Story, for defendant.

CHASE, J. The levy of an execution on land must show with reasonable certainty what premises were intended to be set off. The requirement of a distinct description, (Gen Laws, c. 237, § 6) is complied with if, by the description, the land can be found and identified. McConihe v. Sawyer, 12 N. H. 396; Vogt v. Ticknor, 48 N. H. 242, 249; Saunders v. Bank, 61 N. H. 31; Chappell v. Hunt, 8 Gray, 427. In this case the point of beginning is stated with sufficient certainty, and there would be no difficulty in running a line from it south, 33 degrees west, 25 rods, nor in running a line from the end of this line west, 55 degrees north, to the west line of the farm, but these two lines would not inclose a tract of land. There is nothing in the description to indicate what other lines are to be used in connection with these to bound the tract intended. The last line is designated as "a parallel line," but it does not appear with what line it is parallel. It is described as extending to the west line of the farm, "and the same course to the river." This would be impossible, as the river, being on the easterly side of the lots, is situated in the opposite direction from that in which the line runs. If it be supposed that it was intended that this line should be parallel with the northerly line of the lot,