in the stock of the company, as a security for the loan of $600,000 in city bonds, with a power of sale of the stock upon the terms mentioned. The whole transaction consists in a loan of bonds and a pledge of stock.

The ordinance of the city in respect to the security for its loans as above authorized, is as follows:

That before the bonds or any part thereof, shall be delivered over to the said company, it shall mortgage, hypothecate, pledge and deliver to the city, $1,000,000 of the capital stock of said company, under seal, and shall authorize the city council to sell and dispose of so much of the stock as will realize the aforesaid sum of $600,000; said stock to be sold at such times, in such sums and upon such terms as the city council may determine; and appropriate these proceeds in such manner as the same may direct.

These terms were assented to by the company, and a certificate was duly issued, stating that the city of Cincinnati "is the owner of twenty thousand shares of the capital stock in the Ohio & Mississippi Railroad Company, transferable on the books of the company at the Cincinnati office upon surrender of this certificate." And on the back of the certificate was indorsed"This stock is issued, mortgaged, hypothecated and pledged to the city of Cincinnati, as security for the loan of the bonds of the city for $600,000," etc.

This certificate of stock was accepted by the city council and deposited with the city treasurer, and bonds of the city were soon after issued to the company to the amount of the $600,000.

There is no doubt but that every part of this transaction was within the competency of the city council on the one side, and the railroad company on the other, as derived from the act of the legislature of Ohio, already referred to, of the 20th March, 1850, and was valid and binding upon both the parties. The 7th section of this act confers the authority in express terms. The city council is authorized to contract with the railroad company, to secure, by mortgages, transfers, or hypothecations of their stock, or by such other liens or securities, real or personal, as may be mutually agreed upon, for the payment of the amount of the principal of the bonds as they become due, and for the reimbursement of any interest that might be paid the city.

The question in the case is: What are the rights acquired by the city, on the one hand, and obligations assumed by the railroad company on the other, by this arrangement?

If we look simply to the contract between the parties, it is impossible to entertain any

It is argued, however, that this 7th section of the act of 1850 impresses upon the transaction an effect and operation over and beyond the mere rights and obligations arising out of the contract; that the section transmutes the pledge of stock into a lien or mortgage upon the road and fixtures of the company, and makes it not only a charge upon them, but a charge prior in date to the second, and even the first mortgage; that, in effect, the pledge overrides all liens or *encumbrances upon the road [*292 and fixtures, whether prior or subsequent in time, and postpones them to this alleged statute security of the loan of the city bonds. Certainly a statute that can have such a peculiar and strikingly inequitable effect and operation, should be very explicit and positive, in order to obtain the assent of a court of law or equity. The lien is supposed to be given by the latter clause of the section, which is, in substance, as follows:

And for the further purpose of securing said city against all loss or losses which the same may suffer, whether by payment of the principal or interest, or any damages arising therefrom, that the above liens, mortgages or other securities shall have priority or precedence of all claims or obligations subsequently contracted by such company, and over other liens, securities, or mortgages which were not duly entered into between said company and other persons before the respective issues and loans.

It will be remembered that the first clause in the section gave to the city council an option as to the security they might take for the advance of the bonds. They might take mortgages, or hypothecations of stock of the company, or such other lien or security, real or personal, as the parties should mutually agree to between themselves. The liens and securities, therefore, real or personal, that the city council might require, depended upon their own views of what would be best for all the parties interested in the enterprise of building the road. They could have exacted a mortgage upon the road or fixtures, or both, or be satisfied with personal security, such as the hypothecation of stock. They did, at first, decide in favor of a mortgage on the road, but soon afterwards changed their opinion in favor of the hypothecation of stock-exacting $1,000,000 of stock for the $600,000 in their bonds. Now, "the above-described liens, mortgages, and securities," referred to in the subsequent clause of the section, and to which priority and precedence are given over claims and obligations subsequently entered into, is to be taken distributively; that is, if the city council should stipulate for a lien by way of mortgage, upon the road, or upon personal property belonging to the company, or which might be ac- [*293 quired in the future, such liens or mortgages should have priority and precedence over claims and obligations subsequently contracted by the company. The only answer to this view is that it makes the clause a work of supererogation, as this would be the legal effect of the lien itself.

George Tibbits, of Albany, New York, conveying the land in controversy to William James. It was acknowledged on the day of its date, before Gideon Hawley, Esq., a master in chancery, in manner following:

"State of New York, 88:

Purple, Stat. Jus., vol. II., p. 1194. The plaintiff in error objected to the plification of the record of the will on the following grounds:

That the statute required not only that the will shall be recorded, but it shall remain there to be copied, and that a copy alone of that will shall be evidence, and not a copy of the record. That there is no law in Illinois allowing a copy of the record of a will to be offered in evidence, even though it were copied from the records in the county in Illinois, where the original will was recorded. The statute, to hold the will sacred and prevent fraud, provides that only a copy from the original will shall be evidence; much less that a copy taken from the records of New York and recorded in Illi nois, and then, that a copy of that copy should be offered in evidence without proof of probate in Illinois, where the lands lay in Illinois, sought to be devised: and that, too, without showing that the original will could not be produced, nor even a copy of it.

That the court erred in admitting this will; because it was not the best evidence, nor was it even secondary evidence, and no reason was shown why the original will or a copy of it could not be offered.

That a copy of a copy of a will in Illinois offered cannot be offered in evidence in any case, and:

That the exemplification is not proper proof of the execution of the will, so as to admit it to record in Illinois.

Plaintiff in error insisted,

1st. That the court erred in refusing to instruct the jury that the plaintiff could not recover a verdict from the evidence.

2d. That the plaintiff had failed to show title to the land in question.

3d. That the law was for defendant, now plaintiff in error.

The case is further stated by the court. Mr. James M. Grimes for plaintiff in error. Messrs. Browning and W. C. Goudy for defendant in error.

Mr. Justice Davis delivered the opinion of the court:

Green brought an action of ejectment against Secrist to recover possession of a quarter section of land in Warren county, Illinois. The suit was tried, and resulted in a verdict and judgment for the plaintiff. A second trial had the same termination. Unless the circuit court erred in the admission of evidence, the verdict and judgment must stand.

1. In order to make out the claim of title,

"Master in Chancery."

If the

The authentication of this deed, when made, was in conformity to the laws of New York for the conveyance of real estate within the state. By the terms of an act concerning the proof of deeds and conveyances, passed by the legislature of New York on the 6th of April, 1801, and substantially re-enacted on the 12th of April, 1813, a master in chancery was authorized to take the proof and acknowledgment *of deeds. [*750 See vol. I. Laws of New York, published at Albany by authority, in 1802, p. 478; also, R. L. of N. Y. of 1813, p. 369. This authority remained unchanged until July 1, 1818. See vol. IV. Laws of N. Y., session 1818, p. 44. After that, he was forbidden to do any official act which did not exclusively pertain to his duties as a master in the court of chancery. grantor was not known to the officer taking the acknowledgment, the law required that the deed should be proved by satisfactory evidence; and that the substance of the evidence, with the names of the witnesses, should be incorporated in the certificate of acknowledgment. All this was done in the case of this deed; and if the lands had been in New York, it is certain that the deed could have been read in evidence in any of the courts of that state without further proof. What effect is to be given to such an instrument, thus authenticated, in Illinois, must of course depend wholly upon the statutes of that state; and on this point we are not left in doubt. Provision is made in an act of the legislature of Illinois (see Session Laws of Ill., 1847, p. 47, § 3) for the record of all deeds to lands in the state which have been executed without the state and within the United States, and have been acknowledged or proved in conformity to the laws of the state where executed. The act also declares that all such deeds, when so recorded, may be used as evidence without further proof of their execution. The deed under review, having been acknowledged and proved, as required by the laws of New York, when it was executed, was entitled to be recorded in Illinois, and was properly read in evidence. It was, indeed, insisted that there_should have been some proof of the offi

Gilm. Ill. 163.

2. William James, the grantee in said deed, having died seised, not only of this tract, but other lands in Illinois, it became necessary for the heirs, some of whom were minors, to ask the aid of the courts of Illinois, in order to obtain a lawful division. Accordingly there were certain proceedings instituted in the circuit court of Pike county, Illinois, and partition was made according to the respective rights of the parties. The land in dispute was assigned to John B. James, one of the heirs, through whom the plaintiff below derived title by several mesne conveyances. The record of the proceedings in partition was offered in evidence and read to the jury, and exceptions taken.

Did the court err in suffering the record of the proceeding in partition to go to the jury?

The circuit court of Pike county, where a part of the real estate was situated, had jurisdiction, on proper bill or petition filed, to decree partition. All the parties in interest were required to have notice of the application for such partition, by summons duly served or by advertisement, to be published for four weeks in the nearest newspaper to the premises. See Revised Laws of Ill., 1833, page 238, §§ 13, 14,15. Such a notice was published, for the time specified, in a newspaper printed in an adjoining county, and the presumption is, that it was the nearest newspaper to the premises, in the absence of any proof to the contrary, or that a newspaper was printed in Pike county. Stow v. Kimball, 28 Ill. 107. But the decree finds that due legal notice had been given to all the defendants, and the courts of Illinois hold that such a finding is prima facie evidence of the fact, although not conclusive. Goudy v. Hall, 30 Ill. 116, 117. There was nothing in the record to show that the finding was not true, and the burden of proof rested on Secrist, who at tacked the jurisdiction, to prove that notice in conformity with the statute was not given, notwithstanding the finding of the court. 30 Ill.

117.

John B. James died in Albany, New York, in the month of May, 1856, leaving a will which was admitted to probate in the surrogate's court of Albany county, and letters of administration were granted by the surrogate to James Dexter, who was named executor and trustee in the will.

This will, with its probate and letters testamentary, properly authenticated by the surrogate according to the act of Congress, was recorded in the county court of Adams county, Illinois. This record was read in evidence as a foundation for an introduction of a deed from Dexter, the executor, which was a link in Green's chain of title. Whether the evidence was properly received depends altogether on the laws of Illinois. In 1853 the legislature of that state provided for the conveyance of real estate by non-resident executors. It was made lawful for a non-resident executor, who had proved the will of his testator, and accepted the trust in any one of the states of the Union, to execute the will in Illinois in the same manner as though he had qualified in that state. fore he could sell any real estate he was required to produce the will or a copy of it, with the probate of it and authority to execute it, properly authenticated, and have it recorded in the county court of that county in Illinois where the property of the testator, or a part of it, was situated; and he was obliged to give bond for the faithful appropriation of the effects of the testator in Illinois. It was then the duty of the judge of the county court to certify that such will was duly authenticated under the provisions of the act of the legislature. Purple's Statutes, 2d vol. p. 1226.

Be

This was done, and the record which was resisted, shows that the executor complied literally with the requirements of the act, and was authorized to execute the powers given in the will, so far as to convey real estate in Illinois. A certified copy of the record of the county court of Adams county became, under the general laws of the state, evidence.

There is nothing further in the bill of exceptions which it is material to notice.

We cannot find any error in the record and the judgment of the Circuit Court is, therefore, affirmed, with costs.

We think all the objections which were taken to the introduction of this record in evidence were properly overruled by the circuit court.

3. The deposition of Gideon Hawley was read to the jury, to prove the death of William James and the names of his heirs at law. Exceptions were taken to it by Secrist; but they 751*] cannot avail him, *for the witness real

Err.,

บ.

ISAAC THATCHER et al.

(See S. C. 3 Wall. 347-377.)

General average defined-duty of master after stranding of vessel-to care for cargo-to transport goods to destination-discretion of master-repairs from involuntary stranding -special power of master in case of perilwhen ship and cargo both subject to the same average-when cargo no longer liable -rule as to common interest-expenses after

s. 186; 20 L. ed. U. S. 281; 39 L. ed. U. S. 743; NOTE.-General average--see notes, 10 L. ed. U. 20 C. C. A. 357.