The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-01-29

the Disintegrating Company infringers OF II, and q
third was found not 70 have been iniringed. from
the decree was here affirmed, each party 70 pay
MS own costs In this Court. MI. Justace Suong
delivered the opinion. ..I s..er.
No. 1S9. Wilmington and Weldon Railroad CON-
pany vs. Elliott-Error to the Supreme Court of
Appeals OF Vrgtn}a.-Dismlssed.
Cases Argued.
No. 20s. Hershheld ct al. We. Griflth ct al-Ap-
peal nom the Supreme Court OF Montana Terri
tory.-Ths was an action by Griflith and Thompson,
In the District Court OF the Territory, against one
Starr and another, named Hennon, to foreclose
mortgage executed to secure the payment OF an
instrument In the form OF due bill given in set
Element OF an account for buading quartz MIL,
ACKNOWLEDGING AN Indebtedness OF 83H ounces OF
good merchantable gold dust, and stipulatlng for
she payment OF ~ ounces per month adaitional
until paid The plaintrs in error interviewed claim
ing 20 h0id q deed or the property mortgaged me
verdict ana Judgment sustained the proof OF the
plaintns mortgage over the interveners deed,
and the case Is brought here on questions OF prac
tice and procedure under the code Of the Terri
tory, the appellants maintaining that the cues
tons on the merits are OF equitable jurisdiction,
ana tnat the Legislature ofthe Territory, in ADOPT
ing code, exceeded its power under the organic
act when 1t abolished the distinction between
ganic act having recognized such q distinction.
This distinction, 1t Is said, cannot be obterated
IN the federal Courts. The proceedings should
oy jury: Lyman Trnmbull Tor appellants; Ash
ton and Wilson for appellees.
No. 200. Robertson ct al. vs. Carson-Appeal
from the Circuit Court for South Carolina---This
was proceeding to change the appellants as trus.
tees under the viii Of one Carson. OF Charleston,
s. G., appointing them executors, they having con.
verified the surplus OF the estate into Confederate
bonds. The case presents two questions on
the mertts-First, when does the char
acter OF an executor cease and that
OF trustee peginP second, whether the
change OF investment into Confederate bonds
being IN this case mortgage bonds TO secure the
purchase money OF portion OF the estate-charged
the purchaser, be having notice OF the tEnst, as
well as the trustee so as to render void the salts
1acti0n OF the mortgage by the trustee. The Court
below held that the change OF instrument being
made alter the surplus was in the hands OF the ex
ecutors, what before was q legacy then became Q
trust fund; and they who were before executors
now became impressed with the character OF trus
tees, and that the purchaser as well 1s the trustee
was charged with responsibility in the matter o
the satisfaction OF the mortgage. The decree wat
accordingly that the satisfaction of the mortgage
was breach OF the duty OF the trustee, and that
the mortgage ID still valid and subsisting and thai
the satisfaction he cancelled and the plantation
sold before the accounting OF the executors.
This decision u assigned as error, the argument
being that the executors acted simply as such and
were consequently not charged with the failure Of
the instrument, and that the purchaser is not
bound to see to the application OF the purchase
money. Z. McElroy for appellants; @. Cushing and
w. W. Boyce tor appenees