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out the testimony on the ground that the declarations were privileged communications, which motion was denied. Held, error; and this, although the testimony of the witness on direct examination, while it did not disclose the fact, might have suggested a quære as to the existence of the relationship of counsel and client. But it would be too strict to hold that a party is bound to interrupt the examination of a witness in respect to a material matter on a mere suspicion that the witness may be debarred by his position from testifying. He may, we think, await his opportunity on cross-examination, to bring out the facts, and if on such examination it appears that the witness is incompetent, make his motion to have the testimony expunged from the record. Hinckley v. N. Y. C. & H. R. R. Co., 56 N. Y. 429. (2) It is clear that the witness was debarred from testifying to the declaration of Hill by the rule which forbids an attorney from disclosing communications made to him by a client in the course of his professional employment. Bacon v. Frisbie, 80 N. Y. 394; Root v. Wright, 84 id. 72. Lovendy v. Hill. Opinion per Curiam.

[Decided June 3, 1884.]

EMINENT DOMAIN-FEDERAL GOVERNMENT-COMING INTO STATE COURT.-While the Federal government, as an independent sovereignty, has the power of condemning land within the States for its own public use (Cooley Const. Law [5th ed.], 525; Kohl v. United States, 91 U. S. 367), we see no reason to doubt that it may lay aside its sovereignty, and as a petitioner enter the State courts and there accomplish the same end through proceedings authorized by the State Legislature. If the State may delegate its power to a private corporation of another State, for the benefit of a canal located within its borders, as was held by this court in the Matter of Peter Townsend, 39 N. Y. 171, so it may to an independent political corporation where the use is public and the convenience shared by its own citizens. Gilmer v. Lime Point, 18 Cal. 229; Burt v. Merchants' Ins. Co., 106 Mass. 356. While private property cannot be taken for public purposes without just compensation, this need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy is provided whereby the owner of such property may compel payment of his damages. Bloodgood v. M. & H. R. Co., 18 Wend. 9; Lyon v. Jerome, 26 id. 485; People v. Hayden, 6 Hill, 359; Rexford v. Knight, 11 N. Y. 308. This means reasonable legal certainty. Chapman v. Yates, 54 N. Y. 146; Sage v. City of Brooklyn, 89 id. 189. Accordingly held, that as before any land had been taken under the act entitled "An act granting to the United States the right to acquire the right of way necessary for the improvement of the Harlem river and Spuyten Duyvil creek for the construction of another channel from the north river to the East river through the Harlem Kills, and ceding jurisdiction over the same (ch. 147, L. 1876), as by the various amendments to said act (ch. 345, L. 1879; ch. 65, L. 1880; ch. 61, L. 1881; chs. 377, 410, L. 1882; ch. 214, L. 1883) certain and suitable provision is made to compensate the owners for lands taken, the defect in the original act in this respect was no objection to proceedings instituted under it. Also, held, that the said act was not violative of the provision of the State Constitution, article 3, section 16, providing that * no private or local bill * *shall embrace more than one subject, and that shall be expressed in the title." Matter of United States. Opinion by Danforth, J. [Decided June 3, 1884.]

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obtaining a satisfaction-piece from S. of a certain mortgage of $2,000, the defendant M. agreed to assign to defendant W. a mortgage of $5,000, to be held by him in trust for the payment to plaintiff of $200 per annum, payable semi-annually during the life-time of S. "for his support and maintenance." Plaintiff, in consideration thereof, covenanted to support and maintain S. "as long as said $200 is paid annually as aforesaid." The satisfaction was procured, assignment executed, and defendants made semi-annual payments up to April 15, 1875. Plaintiff thereafter was ready and willing to receive S. into his house and support him there; this S. refused. In an action to recover subsequent installments, held, that the contract must be construed as subject to the implied condition of an assent on the part of S. to receive his support at the hands of plaintiff; that such support was a condition precedent to any obligation to pay, and not having been performed, plaintiff was not entitled to recover. The learned counsel for the respondent insists that to do so was the full measure of his duty, and in aid of his position cites Pool v. Pool, 1 Hill, 580; McKillup v. McKillup, 8 Barb 552; Hawley v. Norton, 23 id. 225; Loomis v. Loomis, 35 id. 624; In Pool v. Pool the plaintiff, an aged man, had conveyed to the defendants his house and other property upon their covenanting to keep and sustain him in boarding and lodging, etc., and suitable attendance, and also to "keep and maintain his infant children in a manner suitable for him to provide for them had he not conveyed away his property." One of the children left before he was twenty-one years of age, and the father sued the defendants because they did not keep and maintain the child, and it was held they were only bound to provide for the child as a member of their family. McKillup v. McKillup presented substantially the same circumstances. A bond to "furnish good and sufficient nursing, medical attendance, washing and lodging" to the father and his insance child, in consideration of the conveyance of real estate. The action was by one who harbored and cared for the father and his child. In Hawley v. Martin the bond expressly provided for the keeping and support of the plaintiff in the house of the defendant; and in all these cases the court decided as in Pool v. Pool, while in Loomis v. Loomis, supra, a different doctrine was applied to the agreement then before the court, and in an action by the beneficiary against the executor of the covenantor it was held that under an agreement for a good and sufficient maintenance, she might choose her residence. It is unnecessary to inquire to what extent these cases are to be followed, for they do not apply to any issue between these parties. Their facts are unlike those before us. Here the beneficiary was not a party to the agreement, nor are there any findings showing that he knew of, or assented to it. Whether he could sue for the non-performance of any duty under its provisions is a question which, although raised by the respondent's counsel, has no bearing upon the present controversy, and need not be considered. It is enough to say that as he left the plaintiff's house of his own volition, if the cases cited have any application, they would, upon the plaintiff's construction of the agreement, furnish ample protection to him in case S. should sue for the cost of support and maintenance during his voluntary absence. The plaintiff's case comes within the principle which relieves a master from liability for not teaching an apprentice who refuses to be taught (Raymond v. Minton, L. R., 1 Ex. 244), and cancels a contract for personal services of a third person if at the time named, that person is unabie to perform. Spaulding v. Rosa, 71 N. Y. 40. The same rule must apply if the person to whom the service is to be rendered is in the case first cited. unwilling to receive it, as

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Therefore as the plaintiff has not performed on his part, the consideration upon which he might be entitled to the trust money fails, and he cannot enforce its payment. (2) In an action for the recovery of money only, and so necessarily triable by a jury (Code Civ. Proc., § 968), and if so tried an interlocutory judgment could not be given; if a jury is waived, and the case tried by the court, and a proper case made out, such a judgment may be rendered the same as if the action were originally triable by the court. Code, § 1207; Murtha v. Curley, 90 N. Y. 372. Cornell v. Cornell. Opinion by Danforth, J [Decided May 9, 1884.]

ILLINOIS SUPREME COURT ABSTRACT.*

EMINENT DOMAIN-RAILROAD.-(1) Under the power of an incorporated railway company to condemn land necessary for side tracks, turn-outs or switches, it has no right to take land for the construction of an independent branch road to subserve only new private interests. (2) But it is no valid objection to the condemnation of a strip of land for a switch or a side track of a railway corporation, that the proposed track may serve private use, if in addition to serving such use it is one also necessary for the successful and convenient operations of the main line of the railroad. (3) Where a railway corporation is limited by the authorities of an incorporated village or town to thirty feet in the center of a public street in which to locate its main track, and it becomes necessary to construct a switch or side track, it is no objection to the condemnation of land for that purpose that it runs perpendicular to the main track, there not being room enough in the right of way along the street for the side track in addition to its two main tracks. (4) To deny a petition of a railway company for the condemnation of land for a side track it should appear that the object thereby scught is clearly an abuse of power, and a taking of private property for an object not required for the convenient operation of the road. See Matter of B. & A. R. Co., 53 N. Y. 574; In re N. Y. C. R. Co. v. M. G. L. Co., 63 id. 326, Chicago, R. I. & Pacific R. Co. v. Town of Lake, 71 Ill. 333; Smith v. Chicago and Western Indiana R. Co., 105 id. 511; C. & P. R. Co. v. Speer, 56 1 Penn. St. 325; In re N. Y. C. & H. R. R. Co., 77 N. Y. 248. South Chicago, etc., R. Co. v. Dix. Opinion by Sheldon, J.

SETTLEMENT-VOLUNTARY-POWER OF REVOCATION. -There is no rule that the want of a power of revocation in a voluntary settlement, or the want of advice as to the insertion of such a power, will afford ground in equity for the donor to set aside such a settlement, but that the same is a circumstance, and a circumstance merely, to be taken into account in determining upon the validity of the settlement, and of more or less weight, according to the facts of each particular case. See Toker v. Toker, 3 DeG. J. & S. 487; Hall v. Hall, L. R., 8 Ch. App. 437; Bill v. Cureton, 2 Mylne & Keen, 503; Petre v. Espinasse, id. 496; Kekewich v. Manning, 1 DeG. M. & G. 176; Jenkins v. Pye, 12 Pet. 241. In Eckert v. Gridley, 104 Ill. 306, we held that a voluntary settlement upon a child could not be revoked. Finucan v. Kendig. Opinion by Sheldon, J. COMMON CARRIER-RAILWAY COMPANY-CARS ANOTHER COMPANY HAULED OVER ITS LINE.-(1) A railway company engaged in the transportation of freights for hire as a common carrier is bound to transport or haul upon its road the cars of any other railroad company, when requested to do so, and will hold the same relation as a common carrier to such cars * To appear in 109 Illinois Reports.

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that it does to ordinary freight received by it for transportation, and in case of loss will be held to the same measure and character of liability to the owner of the cars so received for transportation as would attach in respect to any other property. (2) In this case the defendant railroad company's principal business was switching cars for other railroad companies. Its tracks were connected with those of the other railroads by a transfer switch, and with mills, elevators and manufactories in and around the city where its business was transacted. The plaintiff corporation brought a car loaded with freight to the city, and placed the same on the transfer track, with orders to the defendant to ship the same to a certain distillery, to which place it was taken and unloaded. When unloaded it was taken by the defendant, without orders from the plaintiff, to a sugar refinery, to be loaded, and then switched to the transfer track for shipment. On the same day the sugar refinery was burned, and also the car. Held, that the defendant was liable, as a common carrier, to the plaintiff for the value of the car so destroyed. Peoria & Pekin Union R. Co. v. Chicago, R. I., etc., R. Co. Opinion by Scott, J.

EVIDENCE-PAROL TO SHOW WHAT WRITING IS-PAT ENT-RIGHTS OF SEVERAL OWNERS · SPECIFIC PERFORMANCE-PARTIES.-(1) The rule that the terms of a written contract must be shown by the writings alone, and that oral testimony exhibiting the various negotiations between the parties leading up to its consummation is to be excluded, applies only as between the parties to written instruments, and those claiming under them. Strangers to a written instrument, when their rights are concerned, are at liberty to show by parof evidence that the contract of the parties is different from what it purports to be on the face of the writing. 2 Pars. Cont. 556, 557; Krider v. Lafferty, 1 Whart. 303; Strader v. Lambeth, 7 B. Mon. 589; Reynolds v. Magness, 2 Ired. L. 26; Edgerly v. Emerson, 23 N. H. 555. (2) Each of the several owners of letters patent, without the concurrence of the joint owners, can lawfully exercise and use the patent privileges and license others to do so. Clum v. Brewer, 2 Curt. C. C. Rep. 506; Dunham v. Railroad Co., 7 Biss. 223; Vose v. Singer, 4 Allen, 226; Mathers v. Green, L. R., 1 Ch. App. 29; Curtis on Patents, §§ 189, 191. (3) The general rule is that to a bill for the specific performance of a contract no persons are necessary parties except the parties to the contract itself. Fry Spec. Per., §79; Pom. Spec. Per., § 483, and cases cited; Willard v. Taylor, 8 Wall. 557. Mr. Pomeroy says this is the well-settled general doctrine in England, and has been followed by some of the American decisions, though the tendency of the latter decisions is toward the adoption of a more comprehensive rule. In section 492 he lays it down that in general, when the vendor is a trustee, his cestuis que trust need not be joined as co-defendants. Manufacturing Co. v. Wire Fence Co. Opinion by Sheldon, C. J.

TAX DEED-PARTY

MANDAMUS-COUNTY CLERK MUST SHOW CLEAR RIGHT.—(1) A county clerk who has once exhibited a tax deed at the instance of the holder of the certificate to purchase, upon evidence furnished by such holder, cannot subsequently be com pelled by mandamus to execute to the same party another tax deed under the same certificate of purchase, the holder thereof having filed with the clerk additional and more perfect evidence of his having complied with the law in respect to giving notice of the purchase, etc. (2) If however the county clerk himself makes a mistake in executing a tax deed, whereby it is rendered inoperative for the purpose for which it was intended, he may be compelled by mandamus to correct his mistake, and he may make the correction without being coerced thereto by the court. Maxey v.

Clabaugh, 1 Gilm. 26. And to the same effect is Mc Cready v. Sexton, 29 Iowa, 356. A party applying for a mandamus must show a clear, legal right to have the thing sought by it to be done, and if the granting of the writ will do the party applying for it no good it will be refused. People v. Chicago & Alton R. Co., 55 Ill. 95; Commissioners of Highways v. Bonker, 66 id. 339; People v. City of Elgin, id. 507; People v. Klokke, 92 id. 134; People ex rel. v. Dulaney, 96 id. 503; People exrel. v. Johnson, 100 id. 537. And so the question of the sufficiency of the deed to convey the title, when made as asked, would always be a pertinent question in such cases. We think it is contrary to the policy of the law that mandamus should issue where its sole purpose and effect is, as it is here, to relieve from the consequences of the mistakes or omissions of the party applying for it. Klokke v. Stanley. Opinion by Scholfield, J.

RHODE ISLAND SUPREME COURT

ABSTRACT.*

may

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WILL-LEGACY-EXECUTOR OR TRUSTEE-RESIGNATION -BREACH OF BOND. A legacy was given to A., who was also named executor, "to be by him invested in his name as executor of my estate, and the interest that mulate thereon to be paid by him to F. during the term of his natural life," with remainder over. The executor's bond was conditioned "well and truly to administer" the personal estate of the testator which should come into his hands "according to law and the provisions of said will." A. never invested the legacy in his name as executor, but used it in his business without objection from F., who duly received the interest. A. in his first account to the Probate Court charged off the legacy as having been paid to himself. This was allowed, but the court subsequently revoked the allowance, and required A. to recharge himself with the amount as executor. A. afterward resigned, settled his account, and turned over the legacy to an administrator, with the will annexed. In an action on A.'s bond as executor, in which the pleadings raised the one question of whether there had been a breach of the conditions of the bond. Held, that A. took the legacy as executor, not as trustee. The law in this particular is excellently elucidated by Chief Justice Shaw in Newcomb v. Williams, 9 Metc. 525. When personal estate is bequeathed in trust to some person other than the executor, the executor remains liable for it on his bond until he turns it over to the trustee. When the bequest is to the executor himself, then it is sometimes difficult to say, especially if the bequest be pecuniary, when the executor ceases to be an executor and begins to be a trustee. It is settled however that the change must be evinced by some open and notorius act, and cannot be effected by a mere mental determination; and in Massachusetts, where trustees are required to give bond before assuming the trust, it is held that the executor will remain liable as executor until he gives bond as trustee. Dorr v. Wainwright, 13 Pick. 328; Prior v. Talbot, 10 Cush. 1; Miller and Wife v. Congdon, 14 Gray, 114; Probate Court of Newport v. Hazard, 13 R. I. 1; Depeyster v. Clendining, 8 Paige, 295, 310. It has also been held that a trust, if not expressly created, will not necessarily be implied, because the will imposes duties different from what are ordinarily required of executors, but the duties will be regarded as duties superadded by the will, and the executor and his sureties will be liable on their bond for the performance of them. Saunderson v. Stearns, *To appear in 14 Rhode Island Reports.

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6 Mass. 37; Hall v. Cushing, 9 Pick. 395; Towne v. Ammidown, 20 id. 535, 540; State v. Nichols, 10 Gil. & J. 27; Lansing v. Lansing, 45 Barb. 182; Sheet's Estate, 52 Penn. St. 257. We think, on the authority of these cases, that Angell cannot be held to have discharged himself from his liability as executor for the $3,000, for the direction of the will is that he shall invest it in his name as executor, which clearly imports that at least until such investment he shall hold it as executor. And see particularly Hall v. Cushing, supra. The only reason for doubt on this point which we see is that the bequest is in the outset directly to Angell; but notwithstanding this, we think it is clear that Angell was intended to take simply as executor, for he is directed to invest the $3,000 in his name as executor and to pay the interest to Fiske for life, and after the decease of Fiske the principal is given, regardless of the bequest to Angell, directly to the remainder-men. The testator merely does by express bequest what the law would have done had he omitted it, namely, gives the money to the executor for the purposes of the will. If this be so the defendants are of course liable on the bond. Elliott v. Sparrell, 114 Mass. 404; Sanford v. Gilman, 44 Conn. 461. We do not think their liability was affected by the "charging off." It was no part of the duty of the Probate Court to allow it. Arnold v. Smith, 14 R. I. . The "charging off" amounted to nothing, even on the face of the account, for it simply showed the money still in the hands of the executor, without showing any right in him to have it except as executor. This was therefore a manifest mistake, and the court afterward rightly corrected it. And see United States v. Parker, 2 McArthur, 444. Indeed the defendant, Angell, has himself admitted the propriety of the correction by paying the $3,000 over to the administrator de bonis non, with the will annexed. Probate Court of Scituate v. Angell. Opinion by Durfee, C. J.

CREDITOR'S BILL-JUDGMENT MUST BE FIRST OBTAINED-RETURN OF EXECUTION.—(1) It is a general rule that a creditor's bill cannot be maintained until judgment has been obtained at law and execution has issued and been unsatisfied, the reasons being that legal claims should be first adjudicated in courts of law, the tribunals in which such claims are properly cognizable, and that the legal remedies should first be exhausted. The bill before us does not set forth that judgment at law has been obtained by the complainant, and that execution has issued and been returned unsatisfied, nor any sufficient reason for the absence of those averments. In Merchants' National Bank v. Paine, 13 R. I. 592, a debtor had absconded, without leaving legal assets which could be attached, so that no judgment at law could be obtained against him. It was held that his creditors were entitled to proceed against his equitable assets to satisfy their legal claims. The doctrines of that case are as applicable to a non-resident debtor, having no legal assets within the State, and on whom service of legal process cannot be made for the purpose of bringing suit and obtaining judgment at law as to an absconding debtor. Scott v. McMillen, 1 Litt. 302, 305; Kipper v. Glancey, 2 Blackf. 356, 357, 358; Peay v. Morrison's Exrs., 10 Grat. 149, 157, 158. (2) Mere insolvency therefore does not dispense with the necessity of obtaining a judgment before a resort to equity. Whether or not it will dispense with the necessity for the issue and return of an execution is a question upon which the cases are conflicting. The affirmative is held by Tabb v. Williams, 4 Jones Eq. 352, 353; Turner v. Adams, 46 Mo. 95, 99; McDowell v. Cochran, 11 Ill. 31, 33; Postle wait v. Howes, 3 Iowa, 366, 383. The negative by Brinkerhoff v. Brown, 4 Johns. Ch. 671, 687; McElwain v. Willis, 9 Wend. 548, 560, 566; Screven v. Bostick, 2

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PLEADING-COMPLAINT FOUNDED ON STATUTE-ALLEGATIONS. When a new right of action is given by statute subject to a condition it is incumbent on the plaintiff suing under the statute to allege the fulfillment of the condition, and to prove it if denied. 1 Chitty Plead. *386: Drowne v. Stimpson, 2 Mass. 441, 444; Williams v. Hingham, etc., Turnpike, 4 Pick. 341, 345; Inhabitants of Bath v. Inhabitants of Freeport, 5 Mass. 325; Brown v. Adams, 1 Stew. 51; Greer v. Bumpass, Mart. & Y. 94; Bayard v. Smith, 17 Wend. 88. "It is a uniform rule of law," said Parsons, C. J., in Drowne v. Stimson, 2 Mass. 441, 444, "that "when a statute gives a remedy under particular circumstances, the party seeking this remedy should in his plaint or information allege all the facts necessary to bring him within the statute." Baker & Slater Mill and Power Co. July 5, 1884. Opinion by Durfee, C. J.

GIVEN-REAL AND

TRUST-CONVEYANCE-ESTATE PERSONAL.-L. conveyed certain property, real and personal, in trust to pay his debts from the income, if sufficient; if otherwise, from the principal, and thereafter to pay the income to himself or order for his benefit or his family's, and if the trustee should think more needed for L.'s comfort, to pay to L. or order such amounts, not to exceed one-half of the principal, as the trustee thought proper. The preamble of the deed stated that L. had "certain property, real and personal, which he is desirous of having conveyed in trust for the sole benefit and use of himself." The deed further provided, "and in case of the decease of L. this trust is to terminate, and the said property remaining in the hands of the trustee to be conveyed as he shall by his last will and testament direct, and in default thereof to his heirs at law." L. died intestate, leaving a widow and a daughter. Held, that according to the former decisions of this court L. took under the trust deed an equitable fee simple in the real estate conveyed by it. See Angell, Petitioner, 13 R. I. 630, and cases cited; Rogers v. Rogers, 10 id. 556; Nightingale v. Nightingale, 13 id. 113; Sprague v. Sprague, id. 701; Burges v. Thompson, id. 712; Pierce v. Pierce, 14 id. 63. It follows that it is the trustee's duty to convey the real estate which he still holds in trust, subject to the widow's right of dower in it, to the daughter, in fee simple, together with the rents which may have accrued from it since the decease of L. We are also of the opinion that the same words which gave to L. the equitable fee in the real estate must be construed to have given him the entire equitable interest in the personal property. This view is well supported by authority. Garth v. Baldwin, 2 Ves. Sr. 646; Tothill v. Pitt, 1 Madd. 488; Earl of Verulam v. Bathurst, 13 Sim. 374; Kinch v. Ward, 2 Sim. & Stu. 409; Simmons v. Simmons, 8 Sim. 22. It is the view which this court has taken sub silentio in several cases. Eaton

v.

Tillinghast, 4 R. I. 276; Rogers v. Rogers,

10 id. 556; Nightingale v. Nightingale, 13 id. 113. These cases may not be very authoritative as precedents, though they cannot be ignored as precedents even, but they show that this is the natural construction, the construction instinctively given, and it ought not therefore to be put aside without good rea

son.

Such a reason would exist if the trust deed here contained any language from which it could be satisfactorily inferred that the settler intended to have the words of the grant less technically applied to the personal than to the real property; for it is doubtless true that the rule in Shelley's case is applied to grants of personalty rather by way of analogy for the purposes of construction than as a rule stricti juris, and that it therefore yields more readily to an apparent intention

when so applied than when it is applied to a grant of realty. But the deed contains no such language; on the contrary, the settler claims in the preamble of the deed, as his reason for making it, that he has "certain property, real and personal, which he is desirous of having conveyed in trust for the sole benefit and use of himself." Therefore "in a case like the present," to use the language of Judge Bigelow in Hall v. Priest, 6 Gray, 18, 22, "where personal and real estate are given in the same clause and in the same words, and there is nothing to indicate a different intent in relation to the personal from that manifested respecting the real estate, we are of opinion that the words are to be construed in the same manner as applicable to both species of property." Our decision is that it is the duty of the trustee to transfer the personal property to the administrator, to be administered and distributed by him according to law, as the personal estate of his intestate. Taylor v. Lindsay. Opinion by Durfee,

C. J.

PARTNERSHIP

GOOD FAITH-DELIVERY.

-ASSIGNMENT BY ONE PARTNERWe think it is well established now that one of two or more co-partners has no authority simply as such to assign the entire partnership effects to a trustee for the payment of the partnership creditors without the consent of his co-partners if they are present or at hand where they can be consulted. Ormsbee v. Davis, 5 R. I. 446; Welles v. March, 30 N. Y. 344; Deming v. Colt, 3 Sandf. 284, 292; Fisher v. Murray, 1 E. D. Smith, 341; Kirby v. Ingersoll, 1 Doug. (Mich.) 477, 490; Hughes v. Ellison, 5 Mo. 463; Bull v. Harris, 18 B. Mon, 195, 199. But on the other hand, if the other partners be not present, or where they can be consulted, we think it established that an assignment of the partnership effects to a trus tee for the partnership creditors is valid without their consent, if made by the partner in charge in good faith, to meet a crisis or exigency of the business, and that it is none the less valid for being made in the firm's name under seal so far as the personal effects are concerned. Anderson v. Tompkins, 1 Brock. 456; Harrison v. Sterry, 5 Cranch, 289; McCullough v. Sommerville, 8 Leigh, 415; Robinson v. Crowder, 4 MoCord, 519; Deckard v. Case, 5 Watts, 22; Welles v. March, 30 N. Y. 344; Kemp v. Carnley, 3 Duer, 1; Palmer v. Myers, 29 How. Pr. 8; 1 Am. Lead. Cas. 446-7. We think the case at bar falls under the authority of the cases last named. (2) When an actual delivery cannot be made, a symbolical delivery will be sufficient. In the case at bar the assignment, which was duly delivered and recorded, was on the express trust that the assignee should forthwith take possession of the goods assigned, and under the circumstances we think he did all that was necessary to perfect his title. Whipple v. Thayer, 16 Pick. 25; Mann v. Huston, 1 Gray, 250; Mitchell v. Cunningham, 29 Me. 376, 385; Arnold v. Brown, 24 Pick. 89. Matter of Daniels. Opinion by Durfee, C. J. May, 1884.

VERMONT SUPREME COURT ABSTRACT.*

FORECLOSURE

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-IM

MORTGAGE REDEMPTION PROVEMENTS CHARGEABLE TO MORTGAGOR.-While it is a general rule that a mortgagee in possession without foreclosure cannot improve the mortgagor out of his estate, and that permanent improvements cannot be made at his expense, if he elects to redeem, yet it is not an inflexible rule, but it is suspended in exceptional cases, if justice requires it; thus the land in question was covered with sprouts and bushes, the large timber having been taken off, and in no condi*Appearing in 56 Vermont Reports.

tion to yield income; the mortgagee was in possession, and supposing that he was the absolute owner, cleared the land, built fences, and erected a small barn-all such as good husbandry required, and done in good faith; the mortgagor stood by in silence, making no objections, asserting no right or wish to redeem until the improvements were substantially completed. A bill having been brought to redeem, held that the rule that he who seeks equity must do equity applies; and that the improvements were chargeable to the mortgagor. A grantor has an equity of redemption under a deed absolute in form, but in reality a mortgage. Morgan v. Walbridge. Opinion by Powers, J.

- RESIDENCE - ABSENCE

STATUTE OF LIMITATION FROM STATE. If a debtor residing out of the State when a cause of action accrues against him, comes into the State temporarily, with no intention of residing here, the creditor not knowing thereof, the statute of limitations is not thereby set in operation. Mazozon v. Foot, 1 Aik. 282; Hill v. Bellows, 15 Vt. 727. But when the "coming" is to dwell and reside permanently, it is not necessary in order to set the statute in operation that the creditor should have knowledge thereof; it is enough if he can acquire such knowledge by the exercise of reasonable diligence. Skinner, C. J,, in Mazozon v. Foot, 1 Aik. 282; Redfield, C. J., in Hall v. Nasmith, 28 Vt. 791; Fowler v. Hunt, 10 Johns. 464; Didier v. Davison, 2 Barb. Ch. 477; S. C., 2 Sandf. Ch. 61; Little v. Blunt, 16 Pick. 359; Whitton v. Wass, 109 Mass. 40; Angell Lim., §§ 206, 207. Davis v. Field. Opinion by Rowell, J.

TRESPASS--DAMAGES-USE OF PROPERTY-PLEADING -AMENDMENT EVIDENCE.-(1) The defendant as constable attached the plaintiff's ox, which was exempt; and after the executions were paid, the ox was returned. Held, that the measure of damages was the use of the ox; that if the defendant was at the expense of keeping the ox, it was the value of the use less such expense; that a failure to raise crops by reason of being deprived of the use of the ox was not the natural and proximate result of the attachment; that the plaintiff could not allow his land to go uncultivated and then ask the jury to speculate as to his loss; and that evidence was inadmissible to show it. (2) A part of the property attached was exempt, and a part not exempt, and the question being whether the exempt was turned out for attachment, held, that evidence that the non-exempt property was turned out by its owner for attachment, was not admissible to prove that which was exempt was also turned out; and that the court properly refused to allow the officer to state whether, in his opinion, the interview between himself and the owner at the time of the attachment was friendly or not. (3) The plaintiff brought an action of trespass merely declaring for the unlawful taking of his ox; he afterward filed an amended declaration averring that it was his only team, and that he had been prevented from planting his crops, etc. The defendant then pleaded, and justified the trespasses charged in the amended declaration. Held, that the amendment was proper, as it simply amplified the cause already declared for; but if not, that the defendant had precluded himself from raising the question on the trial of issues thus tendered. (4) The defendant claimed on trial that he settled for the taking when he returned the ox to the plaintiff. But subsequently to the return, he took a boud of indemnification from the execution creditors. Held that the bond was admissible as evidence to disprove the claim of settlement of the unlawful attachment. Luce v. Hoisington. Opinion by Ross, J.

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the public welfare, is the highest law. Hence if a public highway be out of repair and impassable, a traveller may lawfully go over the adjoining land, since it is for the public good that there should be at all times free passage along the highways for all the subjects of the State. In such case, an interference with private property is obviously dictated and justified summa necessitate, by the immediate urgency of the occasion, and a due regard to the public safety or convenience. Broom Leg. Max. 2; Lord Mansfield, C. J., in Taylor v. Whitehead, Dougl. 749; Lord Ellenborough, C. J., in Bullard v. Harrison, 4 M. & S. 393. But such obstruction must be from sudden and temporary causes, and of such a character as to render the road founderous and impracticable. The leading case in this country on the subject is Campbell v. Race, 7 Cush. 408, in which the highway was obstructed and rendered impassable by snowdrifts. But such a right, having its origin in necessity, must be limited by the necessity that creates it, and does not exist from convenience merely, nor when by the exercise of due care, after notice of obstructions, other ways may be used and travelling extra viam thereby avoided. It is to be confined to cases of necessity arising from sudden and recent causes that have occasioned temporary and impassable obstructions in the way. Morey v. Fitzgerald. Opinion by Rowell, J.

HABEAS CORPUS-INSOLVENT LAW-R. L., §§ 1794, 1839.-A debtor imprisoned on a warrant issued by the Court of Insolvency is entitled to be discharged on habeas corpus, when it appeared by the return that the debtor was committed to jail because he refused to submit to an examination on oath upon matters relating to his trades, dealings, the disposal of his estate, etc., and to surrender his books to a messenger, when it did not appear, that an assignee or a messenger had been legally appointed; or that the relator had been declared an insolvent debtor; and his rights are to be determined by the return. In re Brainerd. Opinion by Rowell, J.

ANIMALS-DAMAGES BY TRESPASSING-FENCE-NEGLIGENCE.-The defendant's bull escaped from his pasture into the plaintiff's adjoining pasture, and there injured his horse. The plaintiff's fence was insufficient and out of repair; and the bull escaped through a gap in that portion which the plaintiff was bound to maintain. It was not proved that the defendant knew that the animal was vicious. Held, that the bull was in the plaintiff's field through his own neglect to build a legal division fence, and that the defendant was not liable; and that the statute, R. L., § 4003, against allowing a bull "to run at large out of the inclosure,' etc., has no application, as the bull was in the defendant's "inclosure" when in his pasture. The bull, as regards the defendants, had an excuse for being in the plaintiff's pasture. In the language of Parke, B., in Sharrod v. N. W. R. Co., 4 Welsb. H. & G. 584, and adopted by this court in Hurd v. R. & B. R. Co., 25 Vt. 116, "that if the cattle had an excuse for being on the road, as if they escaped through defects of fences which the company should have kept up, the cattle were not wrong-doers, they had a right to be there and their damage is a consequent damage from wrong of the defendants in letting their fences be incomplete, or out of repair, and may accordingly be recovered by action." On this doctrine the defendant's bull was not a wrong-doer, or trespasser, in the plaintiff's pasture, because there through the fault or neglect of the plaintiff. The plaintiff could not maintain trespass for his entry into his pasture on that occasion. It was expressly decided in Page v. Olcott, 13 N. H. 399, that one adjoining land owner could not maintain trespass quare clausum fregit against another for damages done by the latter's sheep upon the close of

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