But this step was disapproved of on appeal, Lord Justice Turner thus commenting upon it: "That decision appears to me to be exceedingly strong, for there can be no doubt that if the court was not in possession of the estate by its receiver, the lord would be entitled to seize, in order to try the question whether the devisee was bound to take admittance or not; and it is not, as I apprehend, according to the course of the court, to refuse liberty to try a right which is claimed against its receiver, unless it is perfectly clear that there is no foundation for the claim. The vice-chancellor's decision went, therefore, the full length of saying that the lord had no possible claim; and his honor, indeed, has so put the case in giving judgment. I am certainly not prepared to go that length, and unless, therefore, all the parties interested had been desirous that we should decide the question of right, and had been content to abide by our opinion upon it, subject, of course, to an appeal to the House of Lords, I think that leave must have been given to seize, in order that the question of right might be tried."

These observations constitute a pointed reaffirmation of the proper rule of practice as promulgated by Lord Eldon, establishing plainly, as they do, that in this class of cases the chancellor will not undertake to decide a purely legal question against the person who demands from him a trial at law. And it seems superfluous to say that if it be abnormal for equity to pass upon so simple and uncircumstantial a question as a claim to realty, because such a subject belongs to common law cognizance, the supposition that such a tribunal can entertain an action for tort to the person becomes unreasonable in the extreme. If a proposition to take charge of such a suit has ever been made to the English chancery, it has escaped my attention. Nor have I found that such a course has been taken by the courts of any of the States of this Union. My conclusion is, that the jurisdiction exercised in this case has no footing in judicial recognition or in any principle of prac

tice.

Nor is the doctrine thus repudiated sustained by considerations of justice or public policy. We have seen that the doctrine is not necessary either to the court or to its officers for the proper discharge of their functions. Its prevalence would impose an unnecessary and severe burthen on the party seeking redress. It would give the receiver an incongruous and unfair advantage, for while he undoubtedly would have his action at law for all torts affecting him officially, the advantage of that mode of trial would be denied to his opponent. The existence of the power would seem to be as undesirable as its title is in point of law unfounded.

Nor would its existence in the practice of our own courts harmonize with the arrangements of our legal system. The Constitution, in its provisions establishing the inviolability of the trial by jury, must be regarded as admonitory to the courts to guard against every attempt to encroach on the legitimate sphere of that favored mode of redressing injuries. And the very statute

which provides for the winding up of insolvent corporations through the apparatus of a receivership, is careful to preserve this right, for, with respect to mere money claims presented to the receiver, it ordains that either that officer or the creditor may require the controversy to be submitted for decision to a jury under the direction of a justice of the Supreme Court. To preserve this right in such instances of accounts, and at the same time to abandon to equity the unaccustomed field of strictly legal rights, and such remedies as trespass and ejectment, would be an adjustment of procedure that would seem quite preposterous. In point of fact, this statutory provision restricts the operation of the rule of equitaable practice as propounded by Lord Eldon, for, under that rule, these matters of account would be definitively ascertainable in chancery; but in all other respects that rule remains unmodified, and exists as one of the modes of equitable procedure.

The result of this review of the subject is, that in my judgment the plaintiff in this case was entitled, as a matter of right, to a jury trial. But the order refusing him such right has not been appealed from, as it unquestionably might have been; and as both parties submitted to a trial before the vice-chancellor, I have concluded, though not without some misgiving, that the decision rendered in the court below is susceptible of being reviewed on the merits on this appeal. An analogous course appears to have been taken in the before-cited case'of Ranfield v. Ranfield. [On the merits of the case involved in the issues of fact, the court concluded that the decree with respect to them should be reversed, finding that the plaintiff was not guilty of contributory negligence, and assessing his damages at $3,000 ]

NOTE. The court of chancery seems formerly to have had jurisdiction in cases of assaults and trespasses, which were cognizable at common law, but for which the party complaining was unable to obtain redress in consequence of the protection afforded the offender by some powerful baron, sheriff or other officer of the county where the offense occurred. 1 Story Eq. Jur. § 48.

The rule that where there is no adequate legal remedy, the court of chancery supplies the defect, only applies to common law, and not to statutory, rights. Janney v. Buell, 55 Ala. 408; Ryves v. Wellington, 9 Beav. 579; Atty. Gen. v. Sheffield Co., 3 DeG M. & G. 320; Winthrop v. Lane, Desauss. 325, note; Eborn v. Waldo, 6 Jones, Eq. 111; Fletcher v. Hooper, 32 Md. 210: Niagara Bridge Co. v. Great Western R. Co., 39 Barb. 212. Past torts can not be redressed in equity. Monk v. Harper, 3 Edw. 109; Owen v. Ford, 49 Mo. 436; Cobb v. Smith, 16 Wis. 661. A mere tort as to personal property gives no jurisdiction (Davidson v. Floyd, 15 Fla. 667; Long v. Barker, 85 Ill. 431; Du Pre v. Williams, 5 Jones, Eq. 96; Taylor v. Turner, 87 Ill. 296; Quinney v. Stockbridge, 33 Wis. 502); unless joined with some equitable ground of intervention, as account. Pearce v. Bruce, 38 Ga. 444. negligence on the part of agents or others acting in a fiduciary capacity, confers no jurisdiction. Taylor v. Ferguson, 4 Harr. & Johns. 46; Vose v. Philbrook, 3 Story, 335; Furlow v. Tillman, 21 Ga. 150; Russ v. Wilson, 22 Me. 207; Odell v. Mundy, 59 Ga. 641; aliter, if fraud be mixed with such negligence (Sea

Mere

brook v. Underwriters, 43 Ga. 583); and, it seems, the chancellor, may remove a coroner from office for neglect of duty Parnell's Case, 1 J. & W. 451; Pasley's Case, 3 Dr. & War. 34; but will not restrain a party from dismissing an employe Thomas v. Supervisors, 56 Ill. 351. See Hugg v. Camden, 2 Stew. 6; Butcher v. Camden, Id. 478; Sheridan v. Colvin, 78 Ill. 237; Youngs v. Ransom, 31 Barb. 49. Chancery will prevent an indictment, arrest or other interference with its officers for any irregularity etc., in carrying out its decrees. Batchelor v. Blake, 1 Hog. 98; Hyde v. Holmes, 3 Moll. 373; Turner v. Turner, 15 Jur. 218, 2 E. L. & E. 130; Pelham v. Newcastle, 3 Swanst. 289; Walker v. Micklethwait, 1 Dr. & Sm. 49; York v. Pilkington, 2 Atk. 302; Aston v. Heron, 2 Myl. & K. 390; Chalie v. Pickering, 1 Keen. 749; Mackay v. Blackett, 9 Paige, 437; Winfield v. Bacon, 24 Barb. 154; Foot v. Sprague, 12 How. Pr. 355; Peck v. Crane, 25 Vt. 146; Mills v. Kispert, 21 Wis. 387; and enjoin the preaching of a sermon on the subject of a pending suit. Mackett v. Coms. 24 W. R. 845, 3 Cent. L. J. 555. But it will not interfere with one in arrest under the criminal process of another court. Stuart v. La Salle Co., 83 Ill. 341. See Hall v. Com'rs, 31 How. Pr. 237, note. Or his bail. Allen v. Hamilton, 9 Gratt. 255. Nor issue a ne exeat simply because another court can not arrest the defendant. Schubert v. Bull, 4 Ch. Sent. (N. Y.) 33. A negro may not obtain his freedom, if entitled thereto, in chancery. Peters v. Van Lear, 4 Gill, 249; Townshend v. Townshend, 5 Md. 287; Rumph v. Waring, 8 Rich. Eq. 136. See Phebe v. Quillan, 21 Ark. 490. Nor can officers be enjoined from arresting a man drafted into the army, although the use of the writ of habeas corpus was then suspended. Kneedler v. Lane, 3 Grant's Cas. 523 (by a divided court, however). The bishop's removal of a clergyman, in pursuance of an ecclesiastical decree, can only be enjoined if his civil rights have thereby been taken away unjustly. Walker v. Wainwright, 16 Barb. 486. See Youngs v. Ransom, 31 Barb. 49. To a bill to restrain defendant from making disclosures affecting complainant's reputation, on the ground that his information was obtained confidentially, he answered, setting up the frauds of complainants in their usual business transactions, and prayed a discovery. Held, they must discover. Gartside v. Outram, 3 Jur. (N. S.) 39. See Derring v. Chapman, 11 How. Pr. 382. A debtor can not be restrained from applying for his discharge as an insolvent, on the ground that he has removed his property to another State in order to avoid paying his creditors. Croom v. Davis, 6 Ala. 40. See Fillingin v. Thornton, 49 Ga. 384. But it seems, on proper grounds, a plaintiff at law may be enjoined from taking the defendant's body in execution. Frost v. Myrick, 1 Barb. 362. See Hays v. Ford, 55 Ind. 52; Paine v. Puttenham, Dyer, 306 a. The removal of a corpse from a common burial-ground, against the relatives' consent, may be restrained. Girard's Case, 5 Pa. Law Journ. Rep. 68. See Wynkoop v. Wynkoop, 42 Pa. St. 293; 6 Am. Law. Rev. 182; 10 Cent. L. J. 303.

That chancery will enjoin repeated illegal arrests that interfere with the enjoyment of corporate franchises: See Christie v. Bergh, 15 Abb. Pr. (N. S.) 51; also, Davis v. Society, 16 Id. 73. But not the warnings of persons by the police as to the character etc., of houses which they are passing. Prendorill v. Kennedy, 34 How. Pr. 416; Gilbert v. Mickle, 4 Sandf. Ch. 357; Sterman v. Kennedy, 15 Abb. Pr. 201; Chicago v. Wright, 69 Ill. 318. Threats of personal violance to the agents and employees of a company, if they persist in entering defendant's lands and building their railroad there, as they have a right to do by their

charter, does not give equity jurisdiction. Montgomery & W. R. R. v. Walton, 14 Ala. 207. So, of threats by a purchaser of fixtures to enter the house and remove them, a breach of the peace being imminent. Hamilton v. Stewart, 59 Ill. 330. So, of threats by an insolvent person to have complainant arrested. Burch v. Cavenaugh, 12 Abb. Pr. (N. S.) 410. So, of threats to bring an action for an alleged infringement of a trade-mark. Wolfe v. Burke, 56 N. Y. 115. So, of threats to bring other actions, while one was pending, to recover a penalty for not working a highway. Hartman v. Heady, 57 Ind. 545. So, of forcible entry and detainer. Lamb v. Drew, 20 Iowa, 15; Curd v. Farrar, 47 Iowa, 504; Hamilton v. Adams, 15 Ala. 596; McGuire v. Stuart, 1 Mon. 189; Saunders v. Webber, 39 Cal. 287; Comstock v. Henneberry, 66 Ill. 212; Rapp v. Williams, 1 Hun, 716; Winterfield v. Stauss, 24 Wis. 394. Aliter, where an equitable ground for interference exists. Crawford v. Paine, 19 Iowa, 172; Hillebrant v. Barton, 39 Tex. 599; McIntyre v. Hernandez, 7 Abb. Pr. (N. S.) 214. That defendant seduced complainant's infant daughter, and, to avoid redress at law, fraudulently disposed of his property and then absconded, gives no jurisdiction. Meres v. Chrisman, 7 B. Mon. 422. Nor, that the defendant, in order to escape his statutory liability, as her putative father, to support complainant, had removed from the State, leaving property. Simmons v. Bull, 21 Ala. 501; see Furrillis v. Crowther, 7 Dowl. & R. 612; Moncrief v. Ely, 19 Wend. 405. Nor, that defendant maltreated his apprentice, the complainant. Argles v. Beaseman, 1 Atk. 518.

Penalties for violating statutes can not be enforced in equity. Kerr v. Preston, L. R. Chy. Div. 463; Hamersley v. Germantown Co., 8 Phila. 314; Hudson v. Thorne, 7 Paige, 261; Schwab v. Madison, 49 Ind. 329; West v. New York, 10 Paige, 539; Wallack v. Society, 67 N. Y. 23; Cohen v. Goldsboro, 77 N. C. 2; Lamport v. Abbott, 12 How. Pr. 340; Gordon v. Lowell, 21 Me. 251; Moses v. Mobile, 52 Ala. 198; Burnett v. Craig, 30 Ala. 135. Nor a mandamus be enjoined. Montague v. Dudman, 2 Ves.Sr. 396; Neuse River Co. v. New Berne. 6 Jones, 204; Columbia Co. v. Bryson, 13 Fla. 281. Nor a certiorari issued. Berry v. Hardin, 28 Ark. 458. Nor a quo warranto. See Att'y-Gen. v. Bank, Hopk. Ch. 354; Lewis v. Oliver, 4 Abb. Pr. 121; Campbell v. Taggart, 10 Phila. 448; Tyack v. Brumley, 1 Barb. Ch. 519. Nor a prohibition. Rean v. Pettingill, 2 Abb. Pr. (N. S.) 58.

Although chancery has no jurisdiction to enjoin the prosecution of a crime: 2 Story's Eq. Jr. § 893; Holderstaffe v. Saunders, 6 Mod. 16; Emperor of Austria, v. Day, 3 DeG. F. & J. 253; Cox v. Paxton, 17 Ves. 329; Sparhawk v. Union Pass. R. R., 54 Pa. St. 401; Joseph v. Burk, 46 Ind. 59; Gault v. Wallis, 53 Ga. 675; Fletcher v. Hooper, 32 Md. 210; Campbell v. Scholfield, 2 Pittsb. 443; Van Kensslaer v. Griswold, 3 N. Y. Leg. Obs. 94. Yet the drawing of a legalized lottery may be restrained, if irregular. State v. Maury, 2 Del. Ch. 141; State v. Eddy, Id. 269. Or the distribution of prizes drawn, on which proceedings to declare them forfeited have been begun. People v. Kent, 6 Cal. 89. Or proceedings on a judgment obtained against complainant on a bond to which his name had been forged. Reynolds v. Dothard, 7 Ala. 664; Jamesen v. Deshields, 2 Gratt. 4. Or a conspiracy to defraud complainant. Dwinal v. Smith, 25 Me. 379. Or a nuisance on which the trial of an indictment is pending. Raleigh v. Hunter, 1 Dev. Eq. 12; and see Att'y-Gen. v. Cleaver, 18 Ves. 220; Gilbert v. Mickle, 4 Sandf. Ch. 357. Or where a subsequent indictment is not for exactly the same injury. Saull v. Browne, L. R. 10 Ch. App. 64. Or where an embezzler was dead, and his widow having placed his

money in the bank from which he embezzled, began proceedings as administratrix to recover it, and to an injunction by the bank restraining her, she demurred on the ground that the bill alleged a felony. Wickham v. Gatrill, 2 Sm. & Giff. 353. See Crowne v. Baylis, 31 Beav. 351. So an ecclesiastical court may entertain a suit to suspend a clergyman on a charge that constitutes a criminal offense. Burder v. 3 Curt.

822. Generally if an indictment or public femedy is adequate, equity will not interfere. Att'y-Gen. v. Heishon, 3 C. E. Gr. 410, and cases cited; People v. Horton, 5 Hun, 516. But the attorney-general may, semble, sue in equity, even for a legal demand. Att'yGen. v. Railroad Co., 35 Wis. 425. See Att'y-Gen. v. Oalaway, 1 Moll. 95; Att'y-Gen. v. Tudor Ice Co., 104 Mass. 239.

In the following cases it has been held that a receiver of an insolvent railroad is not an agent or servant of the company, and hence that the company is not liable for damages occasioned by his negligence while operating the road. Metz v. Buffalo R. Co., 58 N. Y. 61; Ohio R. Co. v. Davis, 23 Ind. 553; Hopkins v. Connel, 2 Tenn. Ch. 323; Bell v. Indianapolis R. R., 53 Ind. 57; Erwin v. Davenport, 9 Heisk. 44; State v. Consolidated R. R.Co., 67 Me., 479. Contra, Lamphear v. Buckingham, 33 Conn. 237; Klein v. Jewett, 11 C. E. Gr. 474, 12 C. E. Gr. 550; White v. Keokuk R. R. (Iowa) 9 Cent. L. J. 497, 20 Alb. L. J. 455; Meara v. Holbrook, 20 Ohio St. 137. See Kinney v. Crocker, 18 Wis. 74; Davenport v. Ala. R. R., 2 Woods, 519; Safford v. People, 85 Ill. 558; Allen v. Central R. R., 42 Iowa 683; Daniels v. Hart, 118 Mass. 543. Nor is the receiver personally liable. Cardot v. Barney, 63 N. Y. 281; Camp v. Barney, 4 Hun, 373; Kain v. Smith, 11 Hun, 552; Henderson v. Walker, 55 Ga. 481; although such company is liable for loss as a carrier. Blumenthal v. Brainerd, 38 Vt. 402; Morse v. Brainerd, 41 Vt. 550; Paige v. Smith, 99 Mass. 395; Newell v. Smith, 49 Vt. 255; Cowdrey v. Galveston R. R., 93 U. S. 352; Nichols v. Smith, 115 Mass. 332; Barter v. Wheeler, 49 N. H. 9; Pearson v. Wheeler, 55 N. H. 41.

ABSTRACTS OF RECENT DECISIONS.

ENGLISH, IRISH AND CANADIAN CASES.

PARTNERSHIP CONTINUANCE OF BUSINESS BY PARTNERS AFTER EXPIRATION OF TERM OF ORIGINAL ARTICLES APPLICATION OF ARTICLES TO NEW PARTNERSHIP.-The original articles of partnership of a firm of solicitors contained a clause providing that on the decease of one of the partners before the expiration of the partnership term, the surviving partner should pay the executors of the deceased partner a certain sum as the purchase money of his interest in the business. After the expiration of the partnership term the business was carried on by the partners without fresh articles being entered into. Held, on the authority of Essex v. Essex, 20 Beav. 442, and dissenting from that of Cookson v. Cookson, 8 Sim. 529. that the clause applied to the partnership existing between the partners after the expiration of the original partnership term. The rule laid down in Lindley on Partnership, 4th ed., vol. 2, p. 823, approved.-Cox v. Willoughby. English High Court, Chy. Div., 42 L. T. (N. S.) 125.

CRIMINAL LAW-INTENT - RECEIVING LUNATICS INTO UNLICENSED HOUSE. - Defendant was indicted under 8 & 9 Vict. c. 100, sec. 44, for receiving two or more lunatics into a house not duly licensed or registered. Defendant advertised for patients suffering from hysteria, nervousness and perverseness,' and honestly believed and on reasonable grounds that no one of her patients was a lunatic. There was conflicting evidence as to whether any of the patients were lunatics or not. The learned judge directed the jury that the word "lunatic," as defined by the act would include a person whose mind was so affected by disease that it was necessary for his own good to put him under restraint. The jury convicted the defendant, but found that the defendant honestly and on reasonable grounds believed that no one of her patients was a lunatic. Held, that the direction of the learned judge was correct, and that the defendant's belief was immaterial.-Reg. v. Bishop. English Court Crown Cases Reserved. 42 L. T. (N. S.) 240. RAILWAY COMPANY`- MASTER AND SERVANT PASSENGER BY TRAIN OF COMPANY HAVING RUNNING POWERS OVER LINE-LIABILITY FOR NegliGENCE OF PORTER.-Plaintiff traveled with a ticket issued by the D company over defendant's railway, in

carriage belonging to the D company. By defendant's act the D company had running powers over the line, the defendants receiving a percentage on the traffic receipts, such percentage to include the cost of all services connected with manning the lines, use of stations and services of station staff necessary for dispatch of business connected with the traffic. Plaintiff was injured at a station belonging to the defendants by the negligence of a porter employed on a platform which was exclusively allotted to the D company's traffic. Held, that the porter was acting as defendants' servant, and therefore defendants were liable.-Self v. Brighton, etc. R. Co. English Court of Appeal, 42 L. T. (N. S.) 173,

1

BILL OF EXCHANGE-BLANK ACCEPTANCE-NAME OF DRAWER AND INDORSER IN SAME HANDWRITING-FORGED INDORSEMENT ADMISSIBILITY OF EVIDENCE TO PROVE.-1. The defendant gave his acceptance in blank on a piece of paper bearing a sufficient stamp for 5007, to S, who then gave the defendant a receipt stating that the acceptance was given "for the purpose of negotiation, and if not discounted before the 14th inst. to be returned at once." The acceptance was not returned, nor did the defendant ever receive anything for it, but the bill was drawn and indorsed in the same handwriting in the name of S. H. Head, and was then indorsed to the plaintiffs for full value, bona fide, and without notice of any irregularity. In an action by the plaintiffs as such indorsees against the defendant, the evidence of one Samuel Heath Head, who was called by the defendant to prove that he never indorsed or authorized the indorsement of his name, was rejected by the judge on the ground that it was immaterial. Held, that such evidence had been properly rejected. 2. Where a man signs his name to a blank stamped piece of paper and delivers it to another to be negotiated by him, this gives him authority to fill it up to the amount of which the stamp will cover, treating the signature as that of the acceptor; and if the bill thus completed is indorsed to a holder for value without notice, he is entitled to recover upon it against the person who has so signed his name, although the person to whom the blank paper is originally given may have defrauded the person who gave it to him. 3. Where a bill of exchange is drawn by a real person, and the indorsement is forged, the persons who claim under the forged indorsement have no title to the bill; sed secus

where the drawer is a fictitious person.-London, etc. Bank v. Wentworth. English High Court, Ex. Div. 42 L. T. (N. S.) 188.

UNITED STATES SUPREME COURT.

October Term, 1879.

EXEMPTION FROM TAXATION WHEN A CONTRACT -CONSTRUCTION.-Stipulations in a statute exempting certain property or franchises from taxation, if made for a valuable consideration received by the State, is a contract, and as such entitled, under the Constitution, to protection from modification or repeal. 2. Exemptions of this kind are, however, to be construed strictly, the rule being that the right of taxation exists unless the exemption is clearly expressed.-Union Passenger R. Co. v. City of Philadelphia. In error to the Supreme Court of Pennsylvania. Opinion by Mr. Justice CLIFFORD. Judg. ment affirmed. Reported in full, 12 Ch. L. N. 294.

PRACTICE-PROPOSITIONS OF LAW REFUSED EN BLOC-BILL OF EXCEPTIONS.-1. It is a well settled rule of this court that where a series of propositions of law were presented as a whole to the court below, governing the case, and refused as a whole, if upon appeal to this court it appears that any one of the propositions was rightly rejected, there was no error in the court below, because it was not its duty to do anything more than pass upon them as an entirety. 2. Where the bill of exceptions contains no statement of the evidence, this court can not consider facts alleged to have been found, when nothing appears to show such facts except a recital found in the instructions of the judge to the jury, in commenting on the testimony. - Worthington v. Mason. In error to the United States Circuit Court, Eastern District of Arkansas. Opinion by Mr. Justice MILLER. Judgment affirmed.

BILL OF EXCHANGE-WHERE PAYABLE-WHEN MADE AND ACCEPTED IN ONE STATE AND BY TERMS PAYABLE IN ANOTHER.-Cox drew a bill upon "Messrs. Cox & Cowan, New York, N. Y.," payable eighty days from date. This was accepted by an indorsement on its face as follows: "Accepted. Cox & Cowan." All the parties lived in Kentucky. The bill was purchased before maturity by plaintiff, which caused it to be presented when due at the only place in New York where the acceptors were accustomed to transact any business, and protested for non-payment. Held, that the bill having been accepted by the drawees without explanation or condition it follows as a reasonable inference, that they accepted the bill as if they were at the time in the city of New York, and having so accepted it without explanation or condition, the legal construction of the instrument is that it became payable when it fell due at the place designated by the address as the place where the acceptance took place. Cox v. National Bank of New York. In error to the United States Circuit Court District of Kentucky. Opinion by Mr. Justice CLIFFORD. Judgment affirmed.

ty, an equitable lien or charge, in favor of the county, upon the earnings of the railroad, to the extent necessary to meet the interest upon the bonds, such payments and lien continuing until the bonds were paid. 2. This equitable lien or charge exists and is enforceable not only against the funds in the hands of the receiver, but against the purchaser under the decree of foreclosure heretofore rendered, and against whomsoever may hold the property or have custody of its earnings. 3. The act of January 7, 1865, is of that character that all purchasers of bonds issued under mortgages subsequently executed and all purchasers of the property, in whatever mode, were bound to take notice of its provisions. 4. Where a debtor by a concluded agreement with a creditor sets apart a fixed portion of a specific fund in the hands, or to come into the hands, of another from a designated source, and directs such person to pay it to the creditors, which he assents to do, this is an appropriation, binding upon the parties and upon all persons with notice who subsequently claim an interest in the fund under the debtor. 5. A party may, by express agreement, create a charge or claim in the nature of a lien on real as well as on personal property of which he is the owner or in possession, and equity will establish and enforce such charge or claim, not only against the party who stipulated to give it, but also against third persons who are either volunteers or who take the estate on which the lien is agreed to be given with notice of the stipulation. Such agreement raises a trust which binds the estate to which it relates, and all who take title thereto with notice of such trust can be compelled in equity to fulfil it.-Ketchum v. City of St. Louis. Appeal from the United States Circuit Court, Eastern District of Missouri. Opinion by Mr. Justice HARLAN. Mr. Justice STRONG dissenting. Judgment affirmed.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

April, 1880.

NEGLIGENCE-RES INTER ALIOS.-In an action of tort for personal injuries occasioned to the plaintiff while working in a trench by the caving in off the sides thereof, the plaintiff claimed that the trench was not sufficiently braced, and offered in evidence the written contract between the defendant and the city of Boston under which the work was being performed, and which provided, among other things, that "the trenches shall be thoroughly braced and planked." Held, that the contract was res inter alios, and could not be used as an admission of duty nor of reasonableness or propriety. Opinion by LORD, J.-Gilhouly v. Sanborn.

BENEVOLENT SOCIETY

RIGHT OF ACTION AGAINST BY MEMBER IMPLIED CONTRACT--CONDITION PRECEDENT.-The plaintiff was a member of the defendant Ancient Order of Forresters, and brought suit to recover certain allowances alleged to be due him on account of sickness. The sixteenth article of defendant's by-laws provided that any member who might become sick, lame or infirm and incapable of following his usual task, occupation or employment, should be entitled to a certain weekly allowance; the seventeenth article provided that such allowance should not be paid until the chief ranger or secretary had received a certificate signed by the surgeon of the court, or by a qualified surgeon, stating the illness of the member, or, if beyond a certain dis

tance, by the attending surgeon; and that one should be sent each week during the sickness. etc. During the first week of plaintiff's sickness in June, 1878, he sent to the defendant's secretary a certificate stating his sickness, which was signed by the attending surgeon, the plaintiff being beyond the distance aforesaid; and a letter from the plaintiff accompanied the certificate, in which he spoke of it as the "doctor's note to certify that I have been sick and that I am sick, though the signer of this certificate did not designate himself as a surgeon or physician. The plaintiff did not send any other certificate during his sickness until some time in September, 1878, when he furnished a certificate that he had been sick since June 13, 1878. Held: 1. That there was an implied contract on the part of the defendant to pay the allowance, founded upon the consideration of the payment by the member of his dues. 2. That as the plaintiff and defendant had not agreed by their contract to refer their dispute to any tribunal whose decision should be conclusive, the liability could be enforced by a court of law. 3. That the certificate first sent sufficiently complied with the requirements of the by-laws, and that the plaintiff was therefore entitled to the allowance for one week. 4. That the sending of this certificate was a condition precedent, and that the second certificate did not comply with the by-laws so as to entitle the plaintiff to any further allowance. 5. Whether, if the plaintiff had been rendered incapable by an act of God of sending the required certificates the rights of the parties would have been changed, quære. Opinion by MORTON, J.-Dolan v. Court Good Samaritan Ancient Order of Forresters.

SUPREME COURT OF INDIANA.

April, 1880.

CRIMINAL LAW DEFECTIVE AFFIDAVIT.- In a prosecution upon affidavit and information the affidavit must show that the party accused is in custody on a charge of the particular felony charged against him in the affidavit and information, and where the information alleged that the appellant was in custody "on a charge of robbery," but did not show that he was in custody on a charge of the robbery set forth in the affidavit and information, and the affidavit did not show that he was in custody at all: Held, that these defects were fatal and the motion to quash should have been sustained. Reversed. Opinion by WORDEN, J.-Davis v. State.

CRIMINAL LAW REASONABLE DOUBT-COMMON SENSE.-On a trial for grand larceny the court instructed the jury that the reasonable doubt is one which is suggested by or springs out of the proof made and which, after giving due weight to all criminating circumstances and proofs, remains in the mind, suggesting a reasonable possibility of innocence."' Held, that so much of this instruction as limited a reasonable doubt to something which is suggested by or arises from the evidence adduced, gave too narrow a definition of that which is implied by a reasonable doubt. A reasonable doubt may arise from a want of evidence as to some fact having a natural connection with the case, and has reference to that uncertain condition of the mind which may remain after considering what has not been proven, as well as that which

was.

So much of the instruction as told the jury that common sense is perhaps the juror's best guide in the particulars referred was also erroneous. Dinsmore v. State, Dec. 12, 1879. Reversed. Opinion by NIBLACK, J.-Wright v. State.

SUPREME COURT OF TENNESSEE.

April Term, 1880.

JUDICIAL SALE LIEN FOR PURCHASE MONEYWHEN LOST BY LACHES.-Where land was sold under a decree for partition and not paid for, a lien having been retained on the land by the decree for the purchase money, and after eight years the partition proceedings were dismissed for failure to comply with an "order to speed," it was held, under a bill filed after the lapse of another eight years by the owners of the land to enforce the lien retained by the court, that while the statute of limitations does not bar such a lien, yet the laches and delay of the owners in seeking to enforce their lien, would prevent their enforcing it against innocent purchasers from the vendee at the partition sale. Opinion by TURNEY, J.-Whitby v Armour.

LIMITATION OF REAL ACTIONS -SEVEN YEARS' POSSESSION UNDER TITLE BOND.- 1. Land having descended on the death of T to his heirs they conveyed the same by title bond, and it afterwards passed by successive conveyance to N and Y, the possession passing with each conveyance, and one transfer being a sale under execution. Held, that after the lapse of seven years from the conveyance by title bond N and Y were protected by the seven years' statute of limitations from the claim of A's executor to have the land subjected to the payment of A's debts. 2. There is sufficient privity between an execution debtor whose land is sold under the execution, and the purchasers at the sale, to connect the possession of the former with the latter so as to make it continuous, and to make it available to the purchaser who relies on the statute of seven years' adverse possession, provided the possession has been continuously adverse. Opinion by DEADERICK, C. J.-Nelson v. Trigg.

ARBITRATION AND AWARD DECISION OF UMPIRE-SEPARATE AWARD.-1. Where the submission to arbitration agreed to be made a rule of the chancery court, provided that any difference between the arbitrators should be referred to a specific umpire, whose decisions shall be final and conclusive, and the award made and the decree based thereon, shall be in accordance with said decisions and it was referred to the umpire to determine whether the complainant was interested, and if so to what extent in certain lands, his award that the complainant was entitled to an interest of one-half in the lands, and that defendant is indebted to him in a sum designated for onehalf the net proceeds of the sale of the land with interest from the date of sale, is good, the submission expressly providing that the decree in accordance with the award shall be a complete, conclusive and final, end and termination of every item and transaction relating to the business between the parties. 2. Where the submission contemplates an award by the arbitrators as to the matters on which they agree, and a separate award of the umpire upon all matters on which the arbitrators differ, it is not necessary that the arbitrators and umpire shall sign one award. Although the language used in a submission to arbitration may admit of the construction that after the umpire has decided matters of difference the arbitrators are to make a formal award embodying his decisions the failure to do so would net affect the award, the submission expressly providing that the umpire's decision shall be final. Opinion by COOPER, J.-Powell v. Ford.