be considered in measuring the plaintiff's damages; and it has been received in cases of trespass to the person, and even of trespass to property. Birchard v. Booth, 4 Wis. 67; McNamara v. King, 7 Ill. 432; Smith v. Wunderlich, 70 id. 426; Bell v. Morrison, 27 Miss. 68; Rowe v. Moses, 9 Rich. 423; McConnell v. Humpton, 12 Johns. 234. Its reception is generally put upon the express ground that one purpose of the suit in such cases is to punish the defendant, and that such damages as might be severe punishment to a poor man would be no punishment at all to a man of great wealth. In actions for seduction the plaintiff has sometimes been allowed to give evidence of the defendant's pecuniary circumstances. Grable v. Margrave, 4 Ill. 372; S. C., 38 Am. Dec. 88; White v. Murtland, 71 III. 250; Applegate v. Ruble, 2 A. K. Marsh. 128; McAuley v. Birkhead, 13 Ired. Law, 28; Clem v. Holmes, 33 Grat. 721; S. C., 36 Am. Rep. 793; Lavery v. Crooke, 52 Wis. 612; 9 N. W. Rep. 599; S. C., 38 Am. Rep. 768. But in England it is held that the pecuniary circumstances of defendant are not to be proved in suits for seduction (Hodsoll v. Taylor, L. R., 9 Q. B. 79), and Blackburn, J., explains Andrews v. Askey, 8 Car. & P. 7, which has been supposed to lay down a different rule, and shows that the judge in that case pointedly omitted to include the defendant's means as an element of damages. In Iowa such evidence has been excluded in actions for assault and battery (Hunt v. Chicago, etc., R. Co., 26 Iowa, 364; Guengerech v. Smith, 34 Iowa, 348), [and also in suits for seduction. West v. Druff, 55 Iowa, 335; 7 N. W. Rep. 636.

In Dain v. Wycoff, 7 N. Y. 191, 193, Gardner, J., in an action for seduction, condemns such evidence in very pointed language. The suit in that case was brought by the master nominally for loss of service, as was formerly the case here. "The elementary writers," he says, "concur in saying that damages beyond the mere loss of service may be given for the dishonor of the plaintiff and his family and for the injured feelings. But those damages are notwithstanding intended as a compensation for an actual though indefinite injury to which the plaintiff has a right, whatever may be the circumstances of the defendant, and upon principle, to nothing more. If the defendant cannot show his poverty in mitigation of damages there is no reason why the plaintiff should aggravate them by proof of his wealth." And he adds with much good sense: "There can be no reason why twelve men, wholly irresponsible, should be allowed to go beyond the issue between the parties litigating, and after indemnifying the plaintiff for the injury sustained by him, proceed, as conservators of public morals, to punish the defendant in a private action for an offense against society."

In Illinois it has been held in one case that the poverty of the plaintiff, as well as the wealth of the defendant, may be an element in aggravation of damages in cases of malicious torts. McNamara v. King, 7 III. 432. But there could be no general rule to that effect. See Chicago v. O' Brennan, 65 Ill. 164. It has been decided in that State that evidence of the pecuniary circumstances of one of two joint defendants must be rejected, because its tendency, if received, would be to increase the damages as against the defendant, whose means were less, and so to work injustice. Toledo, etc., R. Co. v. Smith, 57 Ill. 517. This difficulty in the application of the rule ought to give very satisfactory evidence of its unsoundness, for the rule, if founded in justice and reason, ought to be, and would be, as applicable in one case as another. The plaintiff's injury is no greater and no less because two persons united in committing it, and the measure of his redress ought not to depend on a circumstance unimportant to the injury. When it is made to do so it is because the court, while nominally proceeding to give compensation, is really losing

sight of compensation in the endeavor to measure the desert of punishment. It is not redressing the plaintiff's injury, but it is punishing the defendant's misconduct, and it is doing this with the aid of a jury who in respect to it are held under none of the restraints which govern judicial action when punishment is the avowed object of the proceeding. The anomaly that a jury may have liberty to punish at discretion for a tort when, if the act were a crime, the penalty would be carefully limited by law, and that they may award the penalty they agree upon to a private suit, or to swell his actual damages, has never received much countenance in this State. Compensation for the wrong done has always been held to be the object to be attained: and while all circumstances of aggravation have been received in evidence, the reception has been for the very sufficient reason that the injury to the plaintiff was the greater in consequence thereof, and that his compensation ought to be in proportion. The increased damages are sometimes spoken of as exemplary, as in a seuse they are, but in a less misleading and more accurate sense they are compensatory. Allison v. Chandler, 11 Mich. 542; Detroit Post Co. v. McArthur, 16 id. 447; Welch v. Ware, 32 id. 77; Elliott v. Van Buren, 33 id. 56; S. C., 20 Am. Rep. 668; Livingston v. Burroughs, 33 Mich. 511; Friend v. Dunks, 37 id. 25: Bennett v. Beam, 42 id. 346; 4 N. W. Rep. 8; S. C., 36 Am. Rep. 442.

In this case the plaintiff, if she established her case, should recover such damages as will fairly compensate her for the wrong she has suffered. But we do not see how the wealth of the defendant can add either to the shame and mortification she must suffer or to the injurious consequences in after life. If wealth could be inquired into at all, the inquiry could not well go beyond general reputation; for a knowledge of actual wealth involves an inquiry into details which in such a suit would render necessary a collateral investigation more troublesome in many cases than the principal issue. But proof of one's wealth by general reputation would be only a part of the showing of his standing in the community; and the plaintiff in this case had the full benefit of this showing without objection. She proved that the defendant was a considerable farmer when he invited her to his house, and continued to be such farmer until after the wrong was made public, and his importance in the community was apparent. To follow this showing with evidence that he admitted his property to amount to a certain sum was to suggest to the jury the idea of a division of this property between the defendant and the woman who claimed to have been injured by him. This is not a very safe idea to suggest to a tribunal supposed to act with discretionary authority, and whose feeling may be excited by a pathetic story, under the influence of which they act immediately. The evidence ought not to have been received.

The defendant offered to show that his general reputation for chastity and purity of life had always been good, but the court excluded the evidence. This is complained of, but no authority in support of its reception is cited. This absence of authority furnishes a very strong if not conclusive argument against the evidence. Good reputation is a very obvious defense in such a case, if it is admissible, and the failure to resort to it hitherto must be referred to a general understanding that the courts were not at liberty to receive it. In criminal cases the defendant may prove good reputation for what it is worth; but the weight of it in his favor would be much more conclusive in some cases than in others. In cases of alleged seduction it would be likely to have less importance than in cases involving accusations of wrong by violence, for a woman would naturally be more on her guard in the case of a notorious character than when the man was

one in whom the community confided. Indeed seduction is often the result of an intimacy originating in mutual respect, and which has become dangerous before the parties are fairly aware of it, and while reputation on both sides is unblemished. We think that in this regard the court committed no error.

Some further questions of evidence which are not likely to arise in the same way again are passed by without notice. Various instructions upon the evidence were asked of the trial judge which concerned the weight and credibility of the proofs merely, and which he was at liberty to deal with as he saw fit. Too much is frequently asked of the trial judge in the line of instructions when no question of law is involved, and we are not inclined to favor the practice.

The only remaining question is the one made under the statute of limitations. The suit was not begun until more than six years had elapsed from the time of the alleged seduction. The suit, under the statute, might have been brought by some relative for the plaintiff (How. St., § 7779), but if it had been it would have been barred. But the person whose family relation to the plaintiff was such as naturally to indicate him as the one to bring suit for such an injury on the plaintiff's behalf was the defendant himself, and gross injustice might result from any rule of law which should make his own inability or unwillingness to take the steps called for by the relation operate to extinguish a right of action for his own misconduct. We have decided that in these cases the woman may sue in her own name (Watson v. Watson, 49 Mich. 540; 14 N. W. Rep. 489), and when she is an infant at the time of the seduction, and nobody acts for her during her minority, there is the same equity in this case as in any other, that she be allowed a reasonable time after coming of age to decide upon seeking redress. The statute (How. St., § 8719) allows six years for the purpose, and the action was therefore not barred.

For the errors which have been pointed out there must be a new trial.

Campbell and Sherwood, JJ., concurred.

Mr. Justice Champlin did not sit in this case.

UNITED STATES CIRCUIT COURT ABSTRACT.*

REMOVAL OF CAUSE-REPLEADING-PRACTICE-DISTINCTION BETWEEN LAW AND EQUITY IN.-(1) Where a suit at common law has been removed from a State court in which it has been conducted under the forms of procedure belonging to a court of equity, the Constitution and laws of the United States require that there must be a repleading to conform to the practice of the Federal court as a court of law. (2) This repleading may require more than one suit, and on both sides of the docket, but this is unavoidable in a jurisdiction keeping up as persistently as the Federal laws do the distinctions between law and equity; and the force and effect of the proceedings in the State court are preserved by moulding them to suit the requirements of the case in the process of distribution between the two jurisdictions. (3) It is only by this construction of the removal acts that the distinctions between law and equity jurisdiction can be observed in practice, and that uniformity secured which it is plainly their intention to enforce. There cannot be one practice for causes removed from the State courts and another for suits originally commenced in the Federal court. Cir. Ct., W. D. Term, Nov., 1883. Whittenton Manfg. Co. v. Memphis, etc. Opinion by Hammond, J.

CORPORATION-RULE OF MAJORITIES-RIGHTS OF MINORITY. (1) In corporations within the scope of the

*Appearing in 19 Federal Reporter.

corporate authority the majority rules; beyond this they have no right to go, and one may insist upon stopping at the limits. Colman v. Eastern Cos. R. Co., 10 Beav. 1; Salomons v. Laing, 12 id. 339; Beman v. Rufford, 4 Eng. Law & Eq. 106; Stevens v. Rutland & B. R. Co., 29 Vt. 545. (2) Those who become members of a corporation consent to the rule of the majority within the powers of the corporation, but not beyond. As the right to restrain going beyond such powers depends upon the want of consent, if the consent is given the right ceases. Therefore when such restraint is sought, due diligence, in the proper direction, to prevent what is sought to be restrained, must be shown as a part of the title to relief. Kent v. Jackson, 14 Beav. 367; Gregory v. Patchett, 33 id. 595. The exercise of the rights of a stockholder to influence corporate action by vote and speech in corporate meetings, when opportunity was presented or could be had, would lie in the proper direction. Until such means should be exhausted or prevented, there would be no real oppression of the minority. Hawes v. Oakland, 104 U. S. 450. Cir. Ct., S. D. New York, Jau., 1884. Leo v. Union Pacific R. Co. Opinion by Wheeler, J.

TRUST-TAKING TITLE FOR OTHER-PLEADING-RESPONSIVE ALLEGATIONS-CONCLUSIVENESS.—A parol agreement by which one of several joint purchasers of land takes the title in trust for the others, imposes upon the grantee an express trust which does not fall within the meaning of a statute of limitations fixing a time for the enforcement of constructive trusts. The rule that responsive allegations in the answer to a bill in equity are conclusive evidence in favor of the respondent, unless overcome by the testimony of two witnesses or their equivalent, cannot be invoked when the answer is upon information and belief, or is discredited by circumstances. The reason of it is, as stated by Chief Justice Marshall in Clark's Ex'rs v. Van Riemsdyk, 9 Cranch, 160, that "the plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony, it is equal to the testimony of any other witness; and as the plaintiff cannot prevail if the balance of proof be not in his favor, he must have circumstances in addition to his single witness in order to turn the balance." And he affirms that the weight to be given to the answer is affected by the same tests which are applicable to a deposition, as for instance, whether the respondent speaks from belief or knowledge. Both are only evidence, and must be weighed in the same scales. This qualification of the weight to be given to an answer upon information and belief is also strongly stated in the note to Mr. Bispham's Adam's Eq., on p. 693, on the authority of numerous American cases. Cir. Ct., W. D. Penn., Sept., 1882. Berry v. Sawyer. Opinion by McKennan, J.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

NEGLIGENCE-FIRE-ESCAPE- OWNER."-Under the provisions of the act of June 11, 1879 (P. L. 128), the owner in fee of a factory is not responsible to a person employed in such factory for an injury occurring by reason of failure to provide a fire-escape, when at the time of the injury the property was leased and the lessee was actually in possession. The "owner "'contemplated by said act, upon whom is placed the burden of providing the fire-escape and the liability in case there is a failure to provide the same, is the person in actual poseession and occupancy of the premises used as a factory at the time the injury in question is inflicted. Schott v. Harvey. Opinion by Paxson, J. [See 26 Am. Rep. 562 n.; 21 Eng. R. 37.-ED.] [Decided Jan., 1884.]

NOTICE POSSESSION-RESULTING TRUST.-In a scire facias sur mortgage the terre-tenant defended on the ground that the mortgagor had bought the premises with her money, fraudulently taking title in his name instead of hers, and subsequently making the mortgage in question. It appeared that the terre-tenant had actually entered upon the' premises immediately upon the purchase thereof by the mortgagor, and that she was actually residing thereon at the time the mortgage in suit was given. Held, that this constituted a good defense, as the mortgagee was under the circumstances bound to take notice of the resulting trust in favor of the terre-tenant. Equitable titles, resting in parol, are always more or less insecure, even when the beneficial owner is in actual and exclusive possession; and the general principle undoubtedly is that such possession, when distinct and unequivocal, puts purchasers and mortgagees on inquiry, and thus visits them with notice of the occupant's title. Since Le Neve v. Le Neve, 2 Lead. Cas. Eq. 35, this principle has been recognized in many cases, among which are the following: Billington's Lessee v. Welch, 5 Binney, 129-32; Sailor v. Hertzog, 4 Whart. 259; Woods v. Farmere, 7 Watts, 382-4; McCulloch v. Cowher, 5 | W. & S. 427-9; Patton v. Hollidaysburgh, Wr. 206; Meehan v. Williams, 12 id. 238; Jamison v. Dimmock, et ux., 14 Norris, 52-6; Hottenstein v. Lerch, 12 Week. Not. 4. While the principle is differently stated in some of these cases, it is substantially the same in all. In Woods v. Farmere, supra, Chief Justice Gibson, speaking of the unlimited effect given by the English courts to possession as an index to title, says: "The duty of inquiring into the foundation of a notorious possession is not a grievous one, and it is soon performed. Why then should a purchaser be suffered to act on probabilities as facts at the risk of any one but himself when a moment's share of attention would prevent misconception or loss? The doctrine of constructive notice is undoubtedly a sharp one; but it is not more so in regard to a notorious possession than it is in regard to a registry. Nor is it less reasonable; for it certainly evinces as much carelessness to purchase without having viewed the premises as it does to purchase without having searched the register." In the language of Woodward, P. J., adopted by this court in McColloch v. Cowher, supra: "The possession of land is notice to the world of every title under which the occupant claims it unless he has put a title on record inconsistent with his possession. When, as in this case, an individual is in possession under no recorded title, his possession is notice of every title which he can set up to protect himself,sufficient at least to put a purchaser on inquiry." A full discussion of the subject by our brother Green may also be found in Hottenstein v. Lerch, supra. The constructive notice spoken of in these cases is in the nature of evidence of notice, the presumptions of which are so violent that they cannot be controverted. It is that notice which the law imputes to a person without regard to whether he has actual knowledge or not; in other words, when inquiry becomes a duty the means of knowledge which it affords is regarded as the legal equivalent of actual notice. Rowe v. Ream. Opinion by Sterrett, J. [See 45 Am. Rep. 188.—ED.] [Decided March, 1884.]

JUDGMENT SECURITY-NEW LOAN-CREDITORS.-(1) A judgment, although paid in full, may by contract be kept alive to secure a new loan, and parol evidence of such contract is admissible in an action between the parties. (2) While such a contract is void as to subsequent lien creditors of the debtor, he himself is estopped from denying it. Anderson v. Neff, 11 S. & R. 208; Craft v. Webster, 4 Rawle, 255; Irwin v. Tabb, 17 S. & R. 419; Schenk's Appeal, 9 Casey, 371; Mitchell v.

Coombs, 15 Norris, 430. Pierce v. Black. Opinion by Paxson, J.

[Decided Feb., 1884.]

WILL-DISTRIBUTION-PER STIRPES.- A died in 1873, leaving a daughter, B., and a grandson, C., “only heir" of a deceased daughter D. By the first clause of his will he devised and bequeathed a house, furniture, etc., to B. By the second clause he bequeathed $30,000 to C. "in addition to" what he should thereafter give him. By the third clause he directed that his residuary estate should be "equally divided between the heirs of the said B. who might be living at the time of said division and said C.,each to share and share alike." Held, that the residue should be divided per stirpes. It is rather difficult under the authorities to indicate any fixed line between language which shall establish a per capita distributioh on one side, and a per stirpes distribution on the other. That in the present case the whole will sufficiently shows the testator intended a per stirpes distributiou we are well satisfied. This conclu sion is sustained by Lackland v. Downer, 11 B. Mon. 82; Walker v. Griffin's Heirs, 11 Wheat. 375; Alder v. Beall, 11 Gill & Johnson, 123; Baskin's Appeal, 3 Barr. 304; Minter's Appeal, 4 Wright, 111; Risk's Appeal, 2 P. F. Smith, 269; Young's Appeal, 2 Nor. 59. The application of these authorities to the facts before us is in no wise impaired by Dible's Estate, 32 P. F. Smith, 279. Osburn's Appeal. Opinion by Mercur, J. [See 36 Am. Rep. 716; 29 id. 688; 23 Eng. R. 513.—ED.] [Decided Nov., 1883.]

MINNESOTA SUPREME COURT ASTRACT

ADMINISTRATOR-PROPERTY RECEIVED BY, AS INDIVIDUAL-ESTATE NOT LIABLE-COVENANT— FRAUDULENT REPRESENTATION.-The complaint in an action was so framed that it did not disclose whether it was intended to charge the defendant in a representative capacity as administrator of an estate or personally. Before the trial, in deciding a motion for judgment on the pleadings, the court construed the action as being against the defendant as administrator, and declared this as its construction. The plaintiff, merely excepting to the decision of the court, proceeded to trial without indicating his election to prosecute the action against the defendant personally, and without offering any amendment to cure the equivocal character of the complaint. Held, that the plaintiff should not afterward be heard to say that the action was against the defendant personally. (2) The mere delivery of property to one who is the administrator of an estate, the estate not being entitled to it, does not make the estate responsible for such property to the person entitled to it, it not appearing that the property was treated or used as assets of the estate, or that the estate received any benefit from it. (3) Representations of freedom from incumbrance made without fraud during the negotiations for the sale of real property are merged in the deed of conveyance by which the sale is consummated. That embracing no covenants respecting incumbrances, none can be shown. Rawle, Cov. (4th ed.) 565, 566; Dart, Vend. (5th ed.) 777; Howes v. Barker, 3 Johns. 506; Houghtaling v. Lewis, 10 id. 297; Share v. Anderson's Ex'rs, 7 Serg. & R. 43; Coleman v. Hart, 25 Ind. 256. No covenants are implied. Gen. Stat. 1878, ch. 40, § 6. (4) For the fraudulent representations of an administrator the estate is not responsible in damages. Fritz v. McGill. Opinion by Dickinson, J.

[Decided March, 1884.]

NEGLIGENCE-CONTRIBUTORY-QUESTION OF FACTHIGH RATE OF SPEED OF RAILWAY TRAIN-EXPERT

EVIDENCE. The plaintiff driving upon a public street

across a railroad track was struck by a train of cars, the approach of which he did not discover until immediately before he drove his horses across the track. The view of the track in both directious was partially obstructed, the evidence going to show that the plaintiff was mindful of the danger and watchful, according to his reasonable judgment, to avoid it; that at the time when he might first have seen or heard the train he had reason to suppose that no train was coming from that direction, while his attention to the track in the opposite direction was more apparently necessary; that the cars were even close at hand, running at a high rate of speed, and he in a place where he could not safely turn his horses, nor hold them before the passing train, it is considered negligence was not conclusively imputable to the plaintiff by the law, but that it was for the jury to determine whether the plaintiff was negligent. We cannot, as an imputation of the law, pronounce his conduct to have been negligence. Kellogg v. N. Y. C. & H. R. R. Co., 79 N. Y. 72; Continental Imp. Co. v. Stead, 95 U. S. 161. (2) To run a locomotive and train of cars, which cannot be readily stopped, at a high rate of speed, and without any signal by bell, whistle, or otherwise, across a much-travelled public street in a village, where the crossing is dangerous to travellers by reason of obstructions concealing the approach of trains, no excuse appearing for the omission to give signal of its approach, is negligence, although there exists no statutory requirement respecting the giving of such signals. Phil. W. & B. R. Co. v. Stinger, 78 Penn. St.219, 225, 227; L.& N.R.Co. v. Com., 13 Bush, 388; Phil. & Trenton R. Co. v. Hagan, 47 Penn. St. 244; Roberts v. C. & N. W. R. Co., 35)Wis. 680. (3) It was not error for the court to charge that one who is called upon to exercise care to avoid danger from the acts of others may, in regulating his own conduct, have regard to the probable or apprehended conduct of such other persons and to the presumption that they will act with reasonable caution, and not with culpable negligence. Ernst v. Hudson R. R. Co., 35 N. Y. 9; Reeves v. Delaware, L. & W. R. Co., 30 Penn. St. 454; Langhoff v. Milwaukee & P. du C. Ry. Co., 19 Wis. 489; Kennayde v, Pacific R. Co., 45 Mo. 255. The court instructed the jury to disregard the opinions of expert witnesses, based upon hypothetical statements of facts, if the jury should find the hypothesis to be not in accordance with the facts. Held, no error. The plaintiff having been a farmer for many years, and engaged in carrying on a farm, was competent to testify as to the value of his own labor. It was a proper subject for the opinion of witnesses. Loucks v. Chicago, etc. Opinion by Dickinson, J. [Decided March, 1884.]

CONTRACT-TIME, ESSENCE OF WHEN COURT WILL NOT INTERFERE.—Where a lease contained a stipulation grauting to the lessees the right and privilege to purchase the leased premises of and from the party of the first part at any time before the expiration of this lease for $11,117, to be paid down in cash to the party of the first part upon the demand of a deed prior to the expiration of this lease, held, that payment of the stipulated sum or tender of the same within the time limited was an essential condition to the consummation of any binding contract of sale. It was plainly the meaning of these agreements that the privilege of purchasing the property should not remain open after the expiration of the time limited. Time was made essential upon the face of the writings. It amounted substantially to a written proposition or offer to sell upon the proposed terms. The assent or act of acceptance, whether by payment or the fulfillment of some other condition, was necessarily to be made within the time limited; otherwise no contract could be consummated. Com. Cont., § 387. Equity cannot vary the terms of

such a stipulation by an extension of the privilege. The time limited for acceptance or payment is in such case part of the contract or option, and equity cannot interfere unless in cases where its jurisdiction can be properly invoked on the ground of fraud or mistake, which is not alleged here. Nicholls v. Maynard, 3 Atk. 519; Adams, Eq. *108, 109. It differs from the case of penalties which are annexed to contracts to secure their performance, or from the case of a forfeiture of some estate or interest already acquired, and from which a party may seek relief on equitable terms. Robinson v. Cropsy, 2 Edw. Ch. 147; Wells v. Smith, 7 Paige, 22; Davis v. Thomas, 1 Russ. & M. 506; Kerr v. Purdy, 51 N. Y. 629; People's Bank v. Mitchell, 73 id. 406. The fact that defendants paid considerable sums to plaintiff to secure the optional privileges of purchase constitute no ground for an equitable accounting and relief. Leonard v. Morgan, 6 Gray, 412; Ketchum v. Evertson, 13 Johns. 359. The payments were made upon a valuable consideration, and the failure to consummate the purchase according to the terms of the agreement was not the fault of the plaintiff, but the fault or misfortune of the defendants. The plaintiff is not enforcing a forfeiture. He is not rescinding a contract already made. He is not in the position of a party invoking equitable relief, entitling the court to impose any conditions. He stands upon the legal title with which the court finds he is invested, and the continued possession of defendants must be referred to the lease and not to the proposed purchase, which was never consummated. Stewart v. Murray, 13 Minn. 426 (Gil. 393). Steele v. Bond. Opinion by Vandenburgh, J. [See 17 Am. Rep. 97.-ED.]

[Decided April 3, 1884.]

RHODE ISLAND SUPREME COURT

ABSTRACT.*

*

*

DEED-REPUGNANT CONDITION.-A. executed and delivered a deed to his son B. purporting to be made in consideration of a life lease of even date with it, of a reservation contained in it, and of love and affection. In it he conveyed certain described realty to B., "his heirs and assigns forever," and then provided if "B. should die without having any lawful heirs of his own body then, and in that case, my daughter N. *** shall come in as equal heir of the aforesaid described and granted premises; that is to say, equal with my two daughters A. and J. * The habendum was to "B., his heirs and assigns forever, to his and their use and behoof forever." The deed contained a covenant of warranty to "B., his heirs and assigns against the lawful claims and demands of all persons." Held, that the provision in the deed in favor of the daughters was bad as a reservation, not being in favor of the grantor. Young, Petitioner, 11 R. I. 636. Held, further, that the provision in the deed in favor of the daughters was repugnant to the grant, and therefore null and void. Littlefield v. Mott. Opinion by Durfee, C. J.

CONTRACT-EVIDENCE-STATEMENT MADE AFTER, INADMISSIBLE.-In a single, undivided and continuous negotiation between A. and B., A. at one time represented one principal and at another time a different one. Held, that A., notwithstanding the change of principal, was entitled to assume that all statements of fact made to him by B. were repeated so long as they were not corrected. The negotiations resulted in a written contract signed by the parties. Held, that statements made by B. after the contract were inadmissible to show what influenced A.'s principal to sign *To appear in 14 Rhode Island Reports.

the contract, but were admissible to corroborate evidence as to what statements B. made before the contract, it being admitted that B., before and after the contract, made statements as to the same matters, and it being shown that the subsequent statements were asked and given as a repetition and confirmation of the preceding. See 13 R. I. 316. Fuller v. Atwood. Opin ion by Carpenter, J.

SALE-TRANSFER

STOCK-LEVY UNDER EXECUTION ON BOOKS.—(1) A statute provided that when an execution is levied upon corporate stock "the said stock or shares, or so much thereof as shall be necessary, shall be advertised and sold in the same manner as other personal property levied on by execution, and a deed or deeds thereof given by the officer aforesaid shall vest in the purchaser all the right, title and interest of the defendant in such shares so sold as aforesaid, and shall be recorded by the recording officer of such company." Held, that the officer's deed vested in the purchaser all the defendant's title, and that a transfer on

the corporation books was superfluous. (2) A purchaser at an execution sale of corporate stock, after receiving his deed from the officer, filed a bill in equity against the corporation to compel it to transfer the stock on its books. The bill did not charge that the deed had been presented for record and the record refused. Held, that the bill stated no case for equitable relief. Lippitt v. American Wood Paper Co. Opinion by Durfee, C. J.

BUILDING USED FOR RE

TAXATION-EXEMPTION LIGIOUS PURPOSES.-Public Statutes of Rhode Island, chap. 41, section 2, exempts from taxation "buildings, for free public schools, buildings for religious worship and the land upon which they stand and immediately surrounding the same, to an extent not exceeding one acre, so far as said buildings and land are occupied and used exclusively for religious or educational purposes." Held, that a building for religious purposes is exempt from taxation although used for educational purposes so long as the use is merely incidental or occasional,or so long as the use, if habitual, is purely permissive and voluntary, and does not interfere with the use for religious purposes, there being no alienation of the building in whole or part for educational uses as e. g., by lease. (2) Real estate is by statute assessed in distinct parcels. The tax on each parcel is a distinct tax, and if void for illegality and paid under protest may be recovered back in assumpsit. American Bank v. Mumford, 4 R. I. 478; Greene v. Mumford, 5 id. 472. See Pub. Stat. of R. I., chap. 42, §§ 4, 8; Young v. Joslyn, 13 R. I. 675. St. Mary's Church v. Tripp. Opinion by Durfee, C. J.

MISSOURI SUPREME COURT ABSTRACT.*

DAMAGES MALICIOUS PROSECUTION.-In an action for malicious prosecution, the jury, if they find for the plaintiff, may, but they are not bound to allow him counsel fees paid in defending against the prosecution. Bradlaugh v. Edwards, 11 C. B. (N. S.) 377; Colyer v. Huff, 3 Bibb, 34; Mostin v. Coles, 7 Hurl. & N. 872. Gregory v. Chambers. Opinion by Philips, Comr.

TRESPASSES ON REALTY-INJUNCTION-ADMIRALTY JURISDICTION.-To maintain injunction against trespass upon property real or personal, it is not necessary that the defendant should be insolvent or the wrong irreparable. The statute gives the right wherever an adequate remedy cannot be afforded by an action for damages. Rev. Stat., § 2722. Thus where the owners of a steamboat were in the constant habit of discharg*To appear in 78 Missouri Reports.

ing freight at a private wharf, without the consent and against the protest of the owner of the wharf, thereby seriously interfering with his business of sawing, receiving and delivering lumber and ties, and they threatened to continue this practice, held, that the wharf owner might maintain injunction. The State courts have jurisdiction of all trespasses committed upon real estate within the limits of the State. The fact that the real estate in question is a wharf does not make it a matter of admiralty jurisdiction and so cognizable alone in the courts of the United States. State Savings Bank v. Kercheval, 65 Mo. 682; Damschroeder v. Thias, 51 id. 100; Echelkamp v. Schrader, 45 id. 505; Hayden v. Tucker, 37 id. 214; McPike v. West, 71 id. 199; Wright v. Moore, 38 Ala. 593; Watson v. Sutherland, 5 Wall. 78. Turner v. Stewart. Opinion by Martin, Comr.

PRIORITIES BETWEEN PARTNERSHIP AND INDIVIDUAL CREDITORS.-A creditor of one partner only, as to the separate property of such partner, has no priority over a partnership creditor, where there are no firm assets and the other partners are insolvent. Phelps v. McNeely, 66 Mo. 554; Hilliker v. Francisco, 65 id. 598; Wiles v. Maddox, 26 id. 77; Eaton v. Walsh, 42 id. 272; Thornton v. Pigg, 24 id. 246; Kansas City Sav. Asso.v. Mastin, 61 id. 435; Wilcox v. Todd, 64 id. 388. Shackelford v. Clark. Opinion by Martin, Comr.

MICHIGAN SUPREME COURT ABSTRACT.

NEGLIGENCE BINS NEAR RAILROAD TRACK.-It is negligence on the part of a railroad company to permit bius to stand near its track when it was using open cars, the step on the side of which came within two inches of the bins. Plaintiff had a right to assume that the defendant would perform its duty in guarding the safety of its passengers and servants, and it was only because it had failed to do so in this instance that the danger was encountered. The plaintiff had had no warning, except to look out a little for the switch, until the bins were so near that it was impossible to avoid striking them; and why should he have looked for dangers whose existence he could not have anticipated? It is not claimed that the caution in respect to the switch was a caution against striking against it; more likely it referred to a jolting motion in passing it. The cases of Hickney v. Boston, etc., R. Co., 14 Allen, 429, and Camden, etc., R. Co. v. Hoosey, 99 Penn. St. 492; 44 Am. Rep. 120, upon which the defendant has greatly relied, we do not think are necessarily inconsistent with these views. Dickinson v. Port Huron, etc. Opinion by Cooley, C. J. [Decided March, 1884.]

WILL-UNDUE INFLUENCE -- - NOT PRESUMED-CIRCUMSTANTIAL EVIDENCE-HUSBAND AND WIFE. —(1) Where a party asserts that an instrument was obtained by undue influence, the law excluding all presumption of undue influence over a person of sound mind, he is required to prove affirmatively that it was so obtained; but in order to do this he should be permitted to show the previous relations of the parties within a reasonable time. In most instances this proof would be made by circumstantial evidence, and the exclusion of such testimony in this case is error. This proof must be made out in most if not in all instances by circumstantial evidence; by proof of facts and circumstances, which standing alone, might prove nothing, but when taken together, and in relation to other facts, might tend to satisfy a jury of the existence of the principal fact of undue influence. Beaubien v. Cicott, 12 Mich. 459; Porter v. Throop, 47 id. 313, 326; S. C., 11 N. W. Rep. 174. (2) The undue influence which operates to defeat a will must be such as