"(1) By official attestation of the clerk or officer in whose custody such records are usually kept. (2) By the certificate of one of the judges or magistrates of such court, that the person so attesting is the clerk or officer legally intrusted with the custody of such records, and that the signature to his attestation is genuine. (3) By the official certificate of the officer who has the custody of the great seal of the government under whose authority the court is held, attested by said seal, stating such court is duly constituted, and has jurisdiction of the subject of the record, and that the seal of the court is genuine."

When a will is executed in a foreign country, and is proven as required by section 3012 of the Tennessee Code before a foreign court having the requisite probate jurisdiction, the record of the probate affirmatively showing the probate by such proof, and authenticated as provided in section 4550, it will pass title to real estate in Tennessee as a common-law conveyance without registration. In the case of Smith v. Neilson, 13 Lea, 461, Judge Cooper laid down the Tennessee law on this subject as follows:

"It was the settled rule of English law, recognized by our courts as in force in this state, that a devise of land was in the nature of a conveyance and special appointment, passing only the title to the testator at the date of publishing the will. Brydges v. Duchess of Chandos, 2 Ves. Jr. 427; Wynne v. Wynne, 2 Swan, 407. There was no provision in England, until recently, for the probate of wills of realty by the probate courts, so as to conclude all parties in interest; and it was necessary to establish such a will by proof whenever any question occurred in court involving its validity. Habergham v. Vincent, 2 Ves. Jr. 230. At common law, therefore, a devise of land was good without probate of the will containing it. Weatherhead v. Sewell, 9 Humph. 272, A foreign will, duly authenticated, might be introduced in evidence as a muniment of title. Donegan v. Taylor, 6 Humph. 501."

The court then proceeds to hold that the will, duly authenticated in accordance with the statute, may still be used as a muniment of, title. In Bleidorn v. Mining Co., 89 Tenn. 166, 15 S. W. 737, the supreme court of Tennessee again considered this question, and, in the reported opinion by Judge Lurton, held that a will conveying lands in Tennessee operated as a conveyance without registration in Tennessee, and affirmed the case of Smith v. Neilson, already referred to.

It remains to consider whether the record here presented fulfills the requirements above stated, so as to operate as a conveyance. It will save time to have this question decided now, on a bill for revivor, instead of waiting until the question arises on the hearing of the merits.

The certificate is entitled: "In the High Court of Justice in Ire land, Probate and Matrimonial Division. The District Registry at Belfast." It begins as follows:

"Be it known that, upon search being made in the district registry of her majesty's high court of justice at Belfast, it appears that, on the twentieth day of March, in the year of our Lord one thousand eight hundred and ninetyfive, the last will of Andrew Currell, late of Ballygarvey, Ballymena, in the county of Antrim, merchant, deceased, who died at Ballygarvey, on or about the 9th day of January, one thousand eight hundred and ninety-five, was proved by William Gihon, of Lionatillan, Ballymena, aforesaid, Esquire, justice of the peace, one of the executors therein named,-John Workman, the other executor, having duly renounced,-which probate now remains of record in the said registry. The true tenor of the said probate is in the words following, to wit: [Then follows the will.]

"In witness whereof, I have signed my name at the end of this my will, which is contained on this and twenty preceding pages of paper, this seventh day of May, one thousand eight hundred and ninety-four.

"Andw. Curell.

"Signed by the said testator, Andrew Curell, as and for his last will and testament, in the presence of us both, being present at the same time, who, in his sight and presence, at his request, and in the presence of each other, have hereunto subscribed our names as witnesses.

"George L. MacLaine, Clerk of Peace, Co. Down. "William Anderson.'

66

"In faith and testimony whereof these letters testimonial are issued. "Given at Belfast, this twentieth day of May, in the year of our Lord one thousand eight hundred and ninety-five.

"Henry H. Corley, District Registrar. "I, the Right Honorable R. R. Warren, president of the probate and matrimonial division of the high court of justice in Ireland, hereby certify that the foregoing exemplification of the probate of the will of Andrew Currell, deceased, was duly issued, and that the foregoing attestation has been duly made, with the seal of office annexed, by Henry H. Corley, district registrar, who is the person having power to grant such exemplification.

"Richard R. Warren.'

"[And the seal of her majesty's high court of justice, probate division.]" It is objected that this is not a certificate showing that the proof of the will is in accordance with the laws of Tennessee. This objection must be sustained. A presumption, from an Irish statute,

or the common-law rule of evidence in the proving of a will, that the oaths of the subscribing witnesses were used to prove the will is not sufficient; for it is laid down in Harris v. Anderson, 9 Humph. 779, 780 (and I do not find that this rule has since been in any degree changed), that:

"The clerk ought to certify a literal copy of the probate from the record, to the end that it may appear whether or not the will has been proved in the mode prescribed by law. A recital by him of what may be deemed its import is unauthorized and inadmissible."

Marr v. Gilliam, 1 Cold. 488, 512; Carr v. Lowe, 7 Heisk. 88.

It has been held, in a number of cases, that, if it appears that the proof was by the oaths of the subscribing witnesses, under a certificate of the clerk, that will be sufficient. Wright v. Mongle, 10 Lea, 38-42. But here the certificate is that the will was proved by the executor. I should have no difficulty in holding that this meant that the will was propounded by the executor, and not that it was proved by his evidence; but the record lacks the statement that the will was proved by the oaths of the subscribing witnesses. The certificate or exemplification of the record is also defective because the third requisite mentioned in section 4550 quoted above is wholly wanting. For the two reasons stated, therefore, the order of revivor is refused.

I might add that, under the provisions of the will, the persons who should properly be admitted as parties by supplemental bill, under equity rule 57, are the executor and trustee and the children of Andrew Currell living at the time of his death, because each of the latter has a possible estate in expectancy under the will. It may be doubted whether the title passes to the trustee and executor at all. He would seem only to have the power to lease, and

not the power to sell. Therefore, a vesting of the fee in him is not required for the purposes of the trust. However this may be, his interest will cease upon the coming of the children to their majority, when the estate in fee will vest either in the eldest of the sons or in all of the living daughters. The application, therefore, should be made in the names of these devisees; and, out of abundant caution, the trustee may be joined.

The clerk will enter an order denying the application for a revivor, and leave will be granted to the devisees and trustee of the deceased complainant within three months to file a supplemental bill to substitute themselves as parties complainant, instead of the deceased complainant, Andrew Currell, and, upon duly exemplified and authenticated record evidence of the proper proof and probate of the will in Ireland, according to the laws of Tennessee, the prayer of the supplemental bill will be granted.

BARBER ASPHALT PAVING CO. v. CITY OF DENVER.

(Circuit Court of Appeals, Eighth Circuit. January 6, 1896.)

No. 655.

1. CONTRACT-LIABILITY FOR PROMISED PAYMENT BY A THIRD PERSON. One who induces a contractor to perform labor or furnish materials by the promise that a third person who, he claims, owes him a debt or duty, shall pay to the contractor the agreed price of the labor and materials he furnishes, becomes primarily liable to pay the contract price himself if he receives the fruits of the contract and his debtor does not pay, or the debt or duty did not in fact exist.

2. MUNICIPAL CORPORATION-CONTRACT TO PAY FOR STREET IMPROVEMENTS BY ASSESSMENTS.

A municipal corporation which contracts to pay for street improvements by assessments upon abutting property is primarily liable to pay the contract price itself, if it has no power to make such assessments, or if it fails to make them, or if the assessments it attempts to make are void.

3. SAME-CONTRACTS THAT RAILWAY COMPANIES SHALL PAY FOR STREET İMPROVEMENTS.

A municipal corporation which contracts that street improvements made for it shall be paid for by railway companies which occupy the street under an ordinance which requires them to make such improvements as the city directs, is primarily liable to pay for the improvements if the railway companies do not, and the corporation takes no action to compel them to do so. Caldwell, Circuit Judge, dissenting.

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

The Barber Asphalt Paving Company (a corporation, and the plaintiff in error) brought an action in the court below against the defendant in error, the city of Denver, a municipal corporation, to recover a balance which it alleged that the city owed it for the performance of four contracts that it had made with the city to grade and pave with sheet asphalt portions of four of its streets. The complaint set forth four separate causes of action,-one upon each of the contracts. The statement of each cause of action presents the same questions for consideration here, and for that reason but one of them

will be considered. The facts alleged in the complaint as a basis for the cause of action were these: The charter of the city of Denver gave it the general power to grade, curb, and pave its streets. The railway companies using the streets had made a contract with the city, in consideration of a license granted to them by it to use these streets, to bring the streets to the official grade, and to pave them between their tracks, and for two feet upon each side of them, in a manner directed by the city. The charter also gave the city the power to assess two-thirds of the total expense of grading and paving any street, excluding the intersection of streets and alleys, upon the property abutting upon the improvement, whenever the owners of a majority of the lots fronting on the same petitioned for it. On March 13, 1892, the city determined to grade and pave a portion of Arapahoe street, and passed an ordinance for that purpose, which provided that the street-railway companies occupying the street at the time of making the improvement should pay such parts of the cost of paving as were provided by the ordinances granting them rights of way on the street; that, after making allowance for the sums so to be paid by the railway companies, the city's proportion of the cost of the improvement should be one-third of the cost of grading, curbing, and paving in front of the lots abutting upon the improvement, and the entire cost of grading, curbing, and paving the intersection of the streets and alleys; and that the remainder of the cost should be borne by the owners of lots abutting upon the improvement. Certain railway companies took possession of and occupied this street with double tracks while the improvement was being made, under an ordinance of the city which gave them license so to do, and provided that the companies "shall pave or plank the same between its rails and two feet on the outside of each rail even with the track whenever the city orders such streets to be paved, and in such manner as the city council may require." The ordinance which provided that the improvement should be made also provided for levying the assessment upon the abutting lots, and appropriated out of the fund to be raised by that assessment $30,911.67, to pay the warrants of the city, which the ordinance provided should be issued against this amount; and it appropriated $15,448.34, not out of the general funds raised by taxation to pay the current expenses of the city, but out of a special fund, realized, or to be realized, by the sale of bonds of the city, which the board of public works of the city had authority to issue, and to apply the proceeds of, for the purpose of paving, grading, and curbing streets, and making other like improvements, in the city of Denver. The ordinance specified that this $15,448.34 was appropriated to pay the city's proportion of the expense of the improvement. After the passage of this ordinance the board of public works advertised for bids for grading and paving this street. The plaintiff in error made a bid that was accepted, and the city made a contract with it in accordance with the bid. The contract was that the plaintiff in error should furnish all the labor and materials required to make the improvement, at prices specified in the contract, and that upon the completion of the work there should be paid to it, in the manner provided by the ordinance, the sum which the labor and materials amounted to, at the prices specified in the contract. The plaintiff in error performed the contract to the satisfaction of the city, The cost of the improvement, at the prices fixed by the contract, was $38,094.05; and the city has paid $33,924.89, but refuses to pay the remaining $4,169.16. The amount unpaid is the cost of grading, paving, and improving that part of the street between the railroad tracks and within two feet outside of the rails. The paving company requested the city to collect this amount of the railway companies that occupied the street, and pay it over to the paving company; but the city refused to do so, and, after demand, refused to pay the amount itself. To this statement of a cause of action, the city demurred on the ground that it disclosed "upon its face that the city of Denver was not, under any conditions to be liable for paving between the rails, and for two feet on the outside of the rails, of the street railway, * # but that said street railway was to be liable therefor to the plaintiff, and plaintiff was, under the contract sued on, to look to said street railway for payment for such paving." The court below sustained the demurrer, and dismissed the action. The writ of error was sued out to reverse this judgment.

v.72F.no.4--22

Charles W. Waterman (Edward O Wolcott and Joel F. Vaile were with him on the brief), for plaintiff in error.

George Q. Richmond (F. A. Williams was with him on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

One who induces a contractor to perform labor or furnish materials by the promise that a third person, who, he claims, owes him a debt or duty, shall pay to the contractor the agreed price of the labor and materials he furnishes, cannot enjoy the fruits of the contract, and leave the contractor remediless, either because his debtor does not pay, or because the debt or duty did not exist. In either event he becomes primarily liable to pay the contract price himself. White v. Snell, 5 Pick. 425; City of Chicago v. People, 56 Ill. 327, 333; Bucroft v. City of Council Bluffs, 63 Iowa, 646, 650, 19 N. W. 807; Cronan v. Municipality No. One, 5 La. Ann. 537.

Stripped of its verbiage, this is the first cause of action disclosed in this complaint: The city of Denver agreed with the Barber Asphalt Paving Company that, if the latter would lay this pavement, it should be paid $38,094.05 therefor, in this way: A certain portion of this sum should be paid in cash, obtained or to be obtained from the sale of the bonds of the city of Denver; $4,169.16 of it should be paid by the street-railway companies which had-contracted to pave part of this street at the time and in the manner in which the city directed; and the balance should be paid from moneys to be realized from an assessment to be levied upon the property abutting upon the improvement. The plaintiff in error has paved the street, and the city has received all the benefits of a full performance of the contract. The city has discharged the obligation imposed upon it by the contract, with this exception: that it has not caused, or attempted to cause, the streetrailway companies to pay the paving company the $4,169.16 which it contracted that they should pay to it; and it refuses to pay this amount itself, or to take any steps to cause the railway companies to pay it. Why is this not a good cause of action? If the city had failed to issue its bonds, or to pay that part of the price of this improvement which it promised to pay from their proceeds, an action could have been immediately maintained to recover it. If it had failed to levy the assessment upon the lots abutting upon the improvement, or if it had been without the power to make that levy, and it had thus failed to cause that part of the price to be paid by the owners of those lots, the paving company could have recovered it by a direct action against the city. It is not perceived why its liability for that part of the price. which it contracted that the railway companies should pay is less direct, primary. or absolute. It is no answer to this proposition to say that, while the city contracted that the railway