and collection"; that is to say, the judgment and its incidents. See, also, Institute v. Kauffman, 18 Wall. 154, 21 L. Ed. 776. In Hunt v. Rousmanier's Adm'rs, the borrower agreed to secure the lender. To this end a power of attorney was executed by the borrower, authorizing the lender to sell two vessels, property of the borrower, and to apply the proceeds of sale to his debt. The question was, was it such a security as was agreed upon? The court held that it did operate as a security, and that it was as complete as a mortgage would have been, only not as safe; this because, not being irrevocable, the death of the borrower would revoke it. So the power of attorney operated as an assignment. The circumstances of the case at bar strengthen this view. Threadgill, being indebted to the bank, had made repeated promises, and had as repeatedly declared his intention, to secure it by this judgment. So strong were his assurances that the bank officers speak of it as a complete understanding to this effect. Finally, he is induced to act, and, carrying out his promises, he executes this instrument. Its language denotes its purpose. Twice in the paper itself it is spoken of as "this assignment." When the instrument was executed, Mr. Kirkpatrick, one of his attorneys, was present, strongly objecting to it, and doing everything he could to prevent Threadgill from executing it. He realized its effect on Rufe's claim, and he believed that Threadgill was bound to protect Rufe. Threadgill, however, declared that he had pledged his word as a Christian gentleman to carry out his verbal contract with the bank when called on to do so, and that whether it ruined Mr. Rufe or himself or the express company or anybody else he was going to carry out his pledge to the bank, and thus he signed the paper.

This instrument, therefore, being an assignment, what is its ef fect? Was it defeated because the judgment of April term, 1895, was set aside, and another judgment obtained on the same cause of action, the judgment under which $6,000 was recovered? At the time this power was executed, the judgment recovered in April, 1894, was in great jeopardy. It was threatened by two formidable modes of attack,—the writ of error in the supreme court, and the bill in equity in the circuit court. Threadgill's counsel, in a letter written in 1896, speaking of it, says that Threadgill incurs a strong chance of losing the greater part, and possibly every dollar, of his claim. For this reason, manifestly, the last clause was inserted in the power of attorney reserving to these gentlemen their full power of managing the cause and of compromising the same. The assignment of the judgment carried with it the claim which was the cause of action. George v. Tate, 102 U. S. 564, 26 L. Ed. 232; Pattison v. Hull, 9 Cow. 747. "The assignment of a judgment which was void, because in excess of the jurisdiction of the court, has been held to transfer the debt for which the judgment was entered. And it seems that the assignment of a judgment necessarily carries with it the cause of action on which it is based, together with all the beneficial interest of the assignor in the judgment and all its incidents." Freem. Judgm. (Ed. 1886) § 431; Brown v. Scott, 25 Cal. 189. This being so, no act of Threadgill taken after the execution

could affect the rights of the bank, nor can the declaration of his attorneys, made in open court, have any effect, that the proceeds of the verdict then about to be taken were the property of Rufe. They could only have done this under instructions from Threadgill.

It has been suggested that the last clause in the power of attor ney saving to Messrs. Kirkpatrick & Blackford the right to exercise their judgment in the management of the said cause, and the same power to compromise the same which they had before this assignment was made, in effect nullified the preceding parts of the instrument, and gave them full power to compromise by paying Rufe, and disappointing the bank. Even if the construction of this clause was doubtful, such a construction would violate the rule, "Ut res magis valeat, quam pereat." It would defeat the purpose of the instrument altogether, and operate a fraud on the bank. But the clause is not of doubtful construction. The judgment was seriously threatened by two formidable modes of attack. Messrs. Kirkpatrick & Blackford were uncertain-perhaps, we may say, were apprehensive of the result. Experienced and able management of the cause -of the whole cause, and not of this incident only-was necessary. Who could better be intrusted with this management than these able counsel? In its result Threadgill, these gentlemen, and the bank were vitally concerned. Therefore there was to be no change of counsel in meeting the dangers of the future. They retained a power to compromise, because, from the circumstances surrounding the cause, a compromise was inevitable, perhaps was necessary, in order to escape total defeat. But what sort of a compromise? Clearly, it must be one affecting the interests of those interested in the cause and its judgment,-a sacrifice of a part of their interest to secure the rest of it, not an abandonment or destruction of it, or a transfer of it to some one else. Mr. Blackford was, to all intents and purposes, a trustee for the bank. He could never have entertained the idea of taking their interest and of giving it to another.

It has been finally suggested that inasmuch as the verdict was only for $6,000, and as Kirkpatrick & Blackford had the first lien on it for a fee of $10,000, they had the right, if they chose, to give a part of their verdict to Rufe. But the record shows that these gentlemen, with great generosity, voluntarily reduced their claim to $2,000, leaving the remainder to be disposed of as right should appear. This ends the contention on that point. The decree of the circuit court is affirmed, each party paying his own costs in this court.

(98 Fed. 933.)

VILLAGE OF WESTERN SPRINGS, ILL., v. COLLINS.

(Circuit Court of Appeals, Seventh Circuit. January 24, 1900.)

1. DECLARATION-OYER OF DEED.

No. 638.

Production by plaintiff of a deed mentioned in the declaration, on defendant craving oyer thereof, makes it part of the declaration.

2. MARRIED WOMAN-LIABILITY ON COVENANT.

Starr & C. Ann. St. Ill. (2d Ed.) p. 2122, § 6, declaring that “contracts may be made and liabilities incurred by a wife, and the same enforced against her as if she were unmarried," does not make her liable on covenants in a deed of her husband's land, in which she joins to release dower or homestead rights.

3. CONFLICT OF LAWS.

Liability of a wife on covenants in deed of her husband's land, in which she joins to release dower or homestead rights, is governed by the laws of the state in which the land is situate and the deed is delivered, though the deed is acknowledged in another state.

In Error to the Circuit Court of the United States for the Northern District of Illinois.

This suit was brought by the village of Western Springs, Ill., the plaintiff in error, against Ruth S. Collins to recover upon a covenant, in her deed to the plaintiff in error of certain described premises, to pay and discharge at maturity a certain described trust deed or mortgage, with apt allegations in the declaration of failure on her part, and of payment of the incumbrance by the plaintiff in error, and making profert of the deed. Thereupon the defendant craved oyer of the supposed instrument in the declaration mentioned, and, it being produced by the plaintiff, it was read to her, and she thereupon demurred generally to the declaration. The deed produced purported to be dated the 29th day of April, 1892, and to be made by Charles C. Collins and Ruth S. Collins, his wife, who, as grantors, convey and warrant to the plaintiff in error the premises therein described, situated in the county of Cook and state of Illinois. The deed also contained this covenant: "Said deed subject to a certain trust deed or mortgage on said property, which said grantors, for themselves, their heirs. administrators, executors, and assigns, assume and agree to pay or have released from said property when the said trust deed or mortgage becomes due." The deed was acknowledged by Mr. Collins in the county of Cook, state of Illinois, on the day of its date, and by Mrs. Collins, in the county of Jefferson, state of Kentucky, on the 3d day of May, and is alleged in the declaration to have been delivered to the plaintiff in error in the county of Cook, state of Illinois. The demurrer was sustained by the court below, and the suit dismissed, to review which decision this writ of error is sued out.

W. P. Quinby, for plaintiff in error.

Hatch & Ritsher and Bennett H. Young, for defendant in error. Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

JENKINS, Circuit Judge, after the foregoing statement of the case, delivered the opinion of the court.

We take it that the production of the deed upon the prayer of the defendant made the instrument produced a part of the plaintiff's declaration, to the same extent as though it had been set out in hæc verba in, and made part of, the declaration. 1 Chit. Pl. 433. It therefore appears on the face of the declaration that the covenant 40 C.C.A.-3

sued on was that of à married woman, which at common law was inoperative because of her inability to contract. Jackson v. Vanderheyden, 17 Johns. 167. The statute of the state of Illinois with respect to the rights and liabilities of married women, which governs the case before us, was passed in the year 1874 (2 Starr & C. Ann. St. [2d Ed.] p. 2122, § 6), and is as follows: "Contracts may be made and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried." Within the last 50 years many of the states of the Union have enacted laws removing, in large measure, the common-law disability of married women, and decisions in the different states upon the various statutes have not been at agreement. It would be unprofitable here to review the various decisions, for the supreme court of the state of Illinois has passed upon this statute, and its decision is controlling. In Snell v. Snell, 123 Ill. 403, 14 N. E. 684, the court held that where a married woman had, for the purpose of releasing her dower, joined with her husband in a deed of certain premises, which were therein wrongly described, a bill in equity would lie, as against her, to reform the deed, although it was conceded that the contract of conveyance was that of the husband, and that such a bill would not lie prior to the statute. The judge delivering the opinion of the court below indulges in strong and general language with respect to the supposed emancipation of married women by the statute quoted, in respect of her right to contract as though she were a feme sole. The actual point decided, however, was as stated. In the case of Sanford v. Kane, 133 Ill. 199, 24 N. E. 414, 8 L. R. A. 724, decided two years later, the court ruled that a married woman, joining with her husband in a deed for the purpose of releasing her dower or homestead rights, was not estopped by her covenants in the deed, and that a title subsequently acquired by her did not inure to the grantee in the deed of her husband and herself by virtue of the covenants of that deed; otherwise, however, as we understand the decision, if the property conveyed was her separate estate. It would seem, therefore, that the construction placed upon this statute by the supreme court of the state of Illinois is that a married woman may contract, and will be bound by her contract, with respect to her separate estate, but not so with respect to covenants in a deed conveying the estate of the husband, and in which she joins merely to effectuate a release of dower and homestead rights.

It was stated at the hearing by counsel for the defendant in error that it was conceded below that the estate here conveyed was that of the husband. That concession is here but mildly, if at all, disputed. Since at common law this covenant would be wholly inoperative, the plaintiff, in order to establish by the declaration legal liability on the part of the defendant, must exhibit a case within the statute which under certain circumstances creates liability, and must show that the covenant was executed by the married woman under conditions which by the statute made the covenant binding upon her.

The question was suggested whether this instrument was to be governed by the law of the state of Illinois, or by the law of the state of Kentucky, so far as concerns the liability of the defendant in error,

because of the acknowledgment of the deed by her in the latter state. It may be that the law of Kentucky governs with respect to the manner of the execution of the instrument, but of that we have heard no complaint; but as the deed was to be operative upon land in the state of Illinois, and the deed was delivered in that state, and the covenant was to operate with respect to incumbrances upon land in that state, it is clear that the law of the state of Illinois governs with respect to the interpretation and the validity of the covenant. Phipps v. Harding, 34 U. S. App. 148, 17 C. C. A. 203, 70 Fed. 468. The judgment is affirmed.

(98 Fed. 946.)

COLUMBUS CONST. CO. v. CRANE CO.

(Circuit Court of Appeals, Seventh Circuit. January 2, 1900.)

No. 548.

1. APPEAL-PRESUMPTIONS-AMENDMENTS TO AVOID VARIANCE.

There should be a liberal practice in allowing amendments of notices of special matter of defense or counterclaim accompanying a plea of the general issue in an action of assumpsit, and on appeal or error any amendment necessary to avoid a variance, and which might have been permitted had objection been taken in the trial court, will be regarded as having been made.

2. SAME-REVIEW OF INSTRUCTIONS-SUFFICIENCY OF EXCEPTIONS AND ASSIGNMENTS OF ERROR.

Rules 10 and 11 of the circuit court of appeals (31 C. C. A. cxlv., 90 Fed. cxlv.), which require that a party excepting to a charge "shall state distinctly the several matters of law to which he excepts," and "shall specify separately and particularly each error asserted and intended to be urged," are for the purpose of preventing the presentation for review of any question which has not been considered by the trial court: and, while the court will not needlessly embarrass the practice by requiring an overnice observance of them, they must be observed to the extent necessary to accomplish that purpose, and only such objections to a charge will be considered as were sufficiently disclosed by the exceptions taken to bring them to the attention of the trial court.

3. CONTRACTS-CONSTRUCTION.

While parties to a contract are entitled to its literal performance, when practicable, that does not mean that courts and juries shall give to the terms of a contract, however clear and unmistakable the ordinary significance of the words employed, a meaning which, when applied to the subject-matter of the contract, will render performance impossible; and a provision of a contract to furnish pipe, and collars for uniting the same, to be used in the construction of a line for piping gas, that the pipe should prove tight in line, cannot be literally construed. where the evidence shows that the construction of an absolutely tight line for such use is impossible.

4. EVIDENCE-DEFECTS IN ARTICLES SOLD-TESTS DURING TRIAL.

Where collars for joining iron pipe, furnished by defendant under a I contract, were produced in court by plaintiff, evidence is admissible to show the result of tests of such collars made by defendant pending the trial, in respect to defects therein alleged by plaintiff.

5. SAME-DEMONSTRATIVE EVIDENCE-COLLATERAL FACTS.

A court may, in its discretion, exclude evidence of tests made of articles similar to those furnished under a contract, and alleged to have been defective; such evidence being collateral, and not directly pertinent to any issue in the case.