UNION BANK '17. CRINE.
contains matter which can be considered only at equity. If the sole defendant is not liable to pay the notes, there is no difficulty in an examination by a court of law, and it is not necessary to resort to the form or mode of relief peculiar to a court of equity. ,There is quite a large class of cases pertaining to the discharge of sureties, upon the principles of which cases this defense rests, in which courts of law take cognizance of defenses which had their origin in the courts of equity,but which are administered by courts of law, without disregarding the inherent distinctions between the two courts. "In general," said Chief Justice SHAW, in Carpenter v. King, 9 Mete. 511, "that which would afford a surety a remedy in equity against his creditor, by injunction, is a good defense at law when suit is against the surety, alone." Many of the earlier distinctions in regard to the rights of su!eties to defend at law do not now seem to be regarded. The cases upon this point are collected in 2 ArneI'. Lead. Cas. 448. If the defense is purely equitable, and the remedy. if any, must be administered by a court of equity, the defendant should have proceeded according to the rules regulating proceedings in equity in the courts of the United States. Burnes v. &ott, 117 U. S. 582,6 Sup. Ct. Rep. 865. Upon the theory that it is a defense which can be examined in a.court oflaw, and confining myself exclusively to lhe question as it relates to the rights of an indorsee and holder of a negotiable instrument, who took the note or bill for value, in ignorance that it was accommodation paper, I am still of the opinion that the defense is inconsistent with the principles which have generally been considered as settled in regard to the rights .of bona fide holders of negotiable paper, and, if the a(',eommodation maker permits the note to go into the hands of bonafide hold. ers, for value, without knowledge of the relations between the maker and payee, that he has abandoned all right to enforce his equity as against the ignorant holder. "He who makes a note or accepts a bill for the accommodation of another .virtually authorizes those who take the instrument subsequently to make such terms or arrangements with the drawer or indorsers as may be most conducive to their mutual interests, and cannot revoke the authority thus given to the injury of those who have acted upon it." 2 Daniel, Neg. Inst. § 1336-1338j Bank v. Rathbmw, 26 Vt. 19. I do not think it advisable to make an extRnded argument upon this question, which is an important one, and upon which there is a conflict of opinion, because this case will probably go to the supreme court t where the question will be authoritatively settled. Meantime t the numerous conflicting authorities will be found collected in 2 Daniel, Neg. Inst. 316-321; 1 Pars. Bills & N. 233; and In re Goodwin, 5 Dill. 140. It may be added that the only decisions of the court of appeals of New York which is directly upon the point in question in regard to negotiablepaper, is against the validity of the defense·. Hoge v. Lanlfimg, 35 .N. Y. 136. . The motion is and the stay of exeoution is vacated.
.FEDERAL REPORTER. HARDENBERG
(Circuit Court, D. Oregon.
January 23, 1888.)
WILLS-REsIDUARY LEGAOy-AFTER-AcQUIRED PROPERTY.
A residuary devise of real property, under the Oregon statute of wills, (sec·· tion 1,) may and will pass after-acquired property. if such appears to have been the intention of the testator.
H., an unmarried man living in Portland, made his will, and, after making two specific devises of real property situate in New York, devised and bequeathed to his sister Ellen E. Ra.LY all the rest of. his lands wherever situate and. all his property and estate of whatever 1l:ind or nature," after. which he purchased other real property, of which he died seized, leaving brothers, including the plaintiff, not mentioned in his will.· Held, that the intention of the testator to make his sister Ellen his resiq.uary devisee was manifest, and that she took the after-acquired property under the devise in the will. . .
(81/llabu8 by the Court.)
At Law. Action to recover possession of real property. F. A · .E. 8tarr and Benton Killin, for plaintiff. Jarnes K. Kelly, O. E. 8. Wood, George H. Willia'l1l8, and Robert L. McKee, for defendants. . DEADY, J. This action is brought to recover possession of the south half·of lots numbered 2 and 7, in block 39, of Portland, according to the plat thereof, alleged to be worth over $5,000. The plaintiff is a citizen of the state of New York. The action was brought against Charles Sliter, J. C. Miller, and W. H. West, the persons in the possession of the premises, who answered that they were in possession only as tenants of Thomas L. Ray, Rachel L. Ray, H. E. Ray, Mary E. Arbuckle, John De Witt Ray, and Sarah A. Ray, giving their residence, and asking that they might be substituted as defendants in the action. A defendant may answer that he is in possession only as the tenant of another, naming him and his place of residence, but it is both impertinent and improper to go further and ask that such person be made defendant. When he declines the controversy, as he may do, he should not further meddle with it. See McDonald v. Oooper, 32 Fed. Rep. 745. These parties were afterwards made defendants, in place of the tenants, on their own motion, and answered, admitting they were all citizens of Oregon, excepting John De Witt Ray, who is a citizen of Illinois, and Sarah A. Ray, who is a citizen of New York. ,!tis alleged in the complaint that the plaintiff is the owner in fee-simple of an undividedone-third0f the premises, and entitled to the immediate possession thereof. The answer contains a'denial of the plaintiff's ownership of any interest in the premises, or his right to the possession thereofj and also a defense to the effect that the defendants are the own-