An act of legislation which imposes on insurance companies the necessity of suspending business at any time when their assets are less than the amount of their outstanding policies, and four per cent thereof, does not bear toward companies chartered by the state the character of an act impairing the obligations of contracts between either the State and company, or the policy-holder and the company, which had to suspend under the legislative condition. The case upon the merits, so far as they involve any question of which this court may take cognizance, is within a very narrow compass. The main proposition of the counsel is that the obligation of the contract which the company had with the State, in its original and amended charter, will be impaired if that company be held subject to the operation of subsequent statutes, regulating the business of life insurance and authorizing the courts in certain contingencies to sus pend, restrain, or prohibit insurance companies incorporated in Illinois from further continuance in business. This position cannot be sustained consistently with the power which the State has, and upon every ground of public policy must always have, over corporations of her own creation. Nor is it justified by any reasonable interpretation of the language of the company's charter. The right of the plaintiff in error to exist as a corporation, and its authority in that capacity to conduct the particular business for which it was created were granted, subject to the condition that the privileges and franchises conferred upon it should not be abused, or so employed as to defeat the ends for which it was established, and that when so abused or misemployed they may be withdrawn or reclaimed by the State, in such way and by such modes of procedure as are consistent with law. Although no such condition is expressed in the company's charter, it is necessarily implied in every grant of corporate existence. Terrett v. Taylor, 9 Cranch, 51; Ang. & A. Corp. (9th ed.), § 774, note. Equally implied, in our judgment, is the condition that the corporation shall be subject to such reasonable regulations in respect to the general conduct of its affairs as the Legislature may from time to time prescribe, which do not materially interfere with or obstruct the substantial enjoyment of the privileges the State has granted, and serve only to secure the ends for which the corporation was created. Sinking Fund cases, 99 U. S. 700; Com. v. Farmers' & Mech. Bank, 21 Pick. 542; Commercial Bank v. Mississippi, 4 Smedes & M. 503. If this condition be not necessarily implied, then the creation of corporations with rights and franchises which do not belong to individual citizens, may become dangerous to the public welfare through the ignorance or misconduct or fraud of those to whose management their affairs are intrusted. It would be extraordinary if the legislative department of a government, charged with the duty of enacting such laws as may promote the health, the morals and the prosperity of the people, might not, when unrestrained by constitutional limitations upon its authority, provide by reasonable regulations against the misuse of special corporate privileges which it has granted, and which could not, except by its sanction, express or implied, have been exercised at all. Chicago Life Ins. Co. v. Needles. Opinion by Harlan, J. [Decided March 2, 1885.]

EVIDENCE-MEMORANDA-REFRESHING MEMORY.The witness, according to his own testimony had no recollection, either independently of the memoranda, or assisted by them, that he had filed a protest with the collector; did not know when he made the memorandum in pencil; made the memorandum in ink twenty months after the transaction, from the memorandum in pencil, and probably other memoranda,

since destroyed, and not produced, nor their contents proved; and his testimony that he did file the protest was based exclusively upon his having signed a statement to that effect twenty months afterward, and upon his habit never to sign a statement unless it was true. Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contemporaneous with the transaction to which they relate. Nicholls v. Webb, 8 Wheat. 326, 337; Insurance Co. v. Weide, 9 Wall. 677, and 14 id. 375; Chaffee v. U. S., 18 id. 516. It is well settled that memoranda are inadmissible to refresh the memory of a witness, unless reduced to writing at or shortly after the time of the transaction, and while it must have been fresh in his memory. The memorandum must have been "presently committed to writing," Lord Holt in Sandwell v.Sandwell, Comb. 445; S.C., Holt,295; "while the occurrences mentioned in it were recent and fresh in his recollection," Lord Ellenborough in Burrough v. Martin, 2 Camp. 112; "written contemporaneously with the transaction," Chief Justice Tindal in Steinkeller v. Newton, 9 Car. & P. 313; or "contemporaneously, or nearly so, with the facts deposed to," Chief Justice Wilde (afterward Lord Chancellor Truro) in Whitfield v. Aland, 2 Car. & K. 1015. See also Burton v. Plummer, 2 Adol. & E. 341; S. C., 4 Nev. & Man. 315; Wood v. Cooper, 1 Car. & K. 645; Morrison v. Chapin, 97 Mass. 72, 77; Spring Garden Ins. Co. v. Evans, 15 Md. 54. The reasons for limiting the time within which the memorandum must have been made are, to say the least, quite as strong when the witness, after reading it, has no recollection of the facts stated in it, but testified to the truth of those facts only because of his confidence that he must have known them to be true when he signed the memorandum. Halsey v. Sinsebaugh, 15 N. Y. 485; Marcly v. Shults, 29 id. 346, 355; State v. Rawls, 2 Nott & McC. 331; O'Neale v. Walton, 1 Rich. 234. Parsons v. Wilkinson. Opinion by Gray, J. [See 20 Eng. Rep. 359; 35 Am. Rep. 54; 39 id. 429.—ED.] [Decided March 2, 1885.]

TRUST-MORTGAGE-CONVEYANCE TO PARTY TO SELL AND PAY DEBTS-WRONG OF CESTUI QUE TRUST-EFFECT AS TO TRUSTEE.-A conveyance with the understanding that the grantee, in assuming title and control of the property with discretion as to a sale, is to pay out of his own means obligations of the grantor, and after sale and satisfaction of debts, to share with him the excess, if any, of the proceeds of sale, creates a trust, and not a mortgage. A trustee having, in a declaration of trust, engaged to pay money out of his own means to keep down the interest of the debts of the cestui que trust, until such time as a sale would be expedient, the subsequent disregarding by the cestui que trust of a conveyance upon which the declaration was based, and his resuming possession of the property, releases the trustee from his engagement. Flagg v. Walker. Opinion by Woods, J. [Decided March 2, 1885.]

TAXATION-NATIONAL BANK SHARES-UNIFORMITY AND EQUALITY.-The former decisions of this court do not sustain the proposition that National bank shares may be subjected, under the authority of the State, to local taxation where a very material part relatively of other moncyed capital in the hands of individual citizens within the same jurisdiction or taxing district is exempted from such taxation. While exact uniformity or equality of taxation cannot be expected under any system, capital invested in National bank shares was intended by Congress to be placed upon the same footing of substantial equality in respect to taxation by State authority as the State establishes for other moneyed capital in the hands of individual citizens,

however invested, whether in State bank shares or otherwise. Boyer v. Boyer. Opinion by Harlan, J. [Decided March 2, 1885.]

ILLINOIS SUPREME COURT ABSTRACT.*

INFANCY FRAUD.-A person is not estopped from setting up infancy as a defense to a contract, by his fraudulent representation at the time the contract was made that he was of full age. So a statement in a deed of a minor that she is "unmarried and of age" is not an estoppel to the disaffirmance of it when becoming of age. Merriam v. Cunningham, 11 Cush. 40; Stud well v. Shapter, 54 N. Y. 249; Gilson y. Spear, 38 Vt. 311; Burley v. Russell, 10 N. H. 184; Conrad v. Lane, 26 Minn. 389; Brown v. McCune, 5 Sandf. 228. In the latter case the court said: "We are not aware that any case has gone the length of holding a party estopped by any thing he has said or done while he was under age, and we think it would be repugnant to the principle upon which the law protects infants from civil liabilities in general.' And further on: "We are clear that the doctrine of estoppel is inapplicable to infants." Welland v. Kobeck. Opinion by Sheldon, C. J. [37 Am. Rep. 413, note; 14 Hun, 56; 30 Eng. Rep. 19.-ED.]

- ESTOPPEL TO DISAFFIRM CONTRACT

EMINENT DOMAIN-DAMAGES-LOSS OF PROFITS IN

BUSINESS.-On an application to condemn for a right of way for a railroad, a part of four lots, held by the defendant under a lease, which leasehold lots were occupied by the defendant in connection with adjacent lots, of which he was the absolute owner, and which were used in carrying on an extensive hot-bed system of flower gardening, the court instructed the jury that there could be no recovery for loss of business or loss of profits. Held, that the instruction was correct. A person occupied fourteen lots in a certain block in carrying on the business of flower gardening as one tract, or as an entirety, holding four of them under a lease for two years, and owning the other ten, and a railway company sought to take a portion of the leasehold property for a right of way. It was held if by so doing the market value of the whole tract was lessened during the two years the lease had to run, the owner and occupant ought to be allowed damages to the extent that the market value of the entire property was thereby depreciated. Chicago, etc., R. Co. v. Dresel. Opinion by Craig, J.

SPECIFIC PERFORMANCE-STATUTE OF FRAUDSORAL AGREEMENT WITH SON- PART PERFORMANCE. Where a father made 3 verbal agreement with his son that if the latter would remain in this State and go upon and live on an eighty-acre tract of land of the former, and improve it, it should be the son's after the father's death, the son to pay a certain share of the crops during his father's life, which contract was fully performed by the son, it was held that the acts of part performance were sufficient to take the case out of the statute of frauds, and that a specific performance after the father's death was properly decreed as against the other heir. Ramsey v. Liston, 25 Ill. 114; Bright v. Bright, 41 id. 97; Kurtz v. Hibner, 55 1d. 514; Langston v. Bates, 84 id. 524; Bohanan v. Bohanan, 96 id. 591; McDowell v. Lucas, 97 id. 489. Smith v. Yocum. Opinion by Sheldon, C. J.

MANDAMUS-DENTAL EXAMINERS.- ACT OF 1881.The refusal of the Illinois State Board of Dental Examiners to grant a license to a person whose application was based upon a diploma issued by a dental college, mandamus will not lie to compel the board to *To appear in 110 Illinois Reports.

64

grant the license, because to entitle the applicant to a license the diploma must have been issued by a "reputable" dental college, and whether the college is a reputable" one, is under the statute within the judgment and discretion of the board to determine. The office of the writ of mandamus is in general to compel the performance of mere ministerial acts prescribed by law. It lies however also to subordinate judicial tribunals to compel them to act where it is their duty to act, but never to require them to decide in a particular manner. It is not, like a writ of error or appeal, a remedy for erroneous decisions. Judges of Oneida Common Pleas v. People, 18 Weud. 92. And as is said by the court in People ex rel. v. Common Council of Troy, 78 N. Y. 33: "This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment. The character of the duty, and not that of the body or officers, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine the question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide it in a particular way, however clearly it be made to appear what the decision ought to be. See also Kelly v. City of Chicago, 62 Ill. 279. Illustrations of the principle will be found in People v. Common Council of Troy, supra; Freeman v. Selectmen, 34 Conn. 406; Hoole v. Kinkead, 17 Nev. 217; Bailey v. Ewart, 52 Iowa, 111; Berryman v. Perkins, 55 Cal. 483; People v. Contracting Board, 27 N. Y. 378. People v. Dental Examiners. Opinion by Scholfield, J.

EVIDENCE-MEDICAL AND SCIENTIFIC BOOKS INADMISSIBLE BEFORE JURY.-The weight of current authority is decidedly against the admission of scientific books in evidence before a jury, although in some States they are admissible. 1 Greenl. Ev., § 440, and note; Whart. Ev., § 665; Rog. Exp. Test., §§ 168, 169, et seq., and cases cited in notes. And the weight of current authority is also against allowing such treatises to be read from to contradict an expert generally. See authorities, supra, and Commonwealth v. Sturtivant, 117 Mass. 122; Davis v. State, 38 Md. 15; State v. Where however an expert asO'Brien, 7 R. I. 336. sumes to base his opinion upon the work of a particular author, that work may be read in evidence to contradict his. This was in effect our ruling in Connecticut Mut. Life Ins. Co. v. Ellis, 89 Ill. 516; and it was expressly so ruled in Pinney v. Cahill, 48 Mich. 584; City of Ripon v. Brittel, 30 Wis. 614; and Huffman v. Click, 77 N. C. 55. See also Marshall v. Brown, 50 Mich. 148; Rog. Exp. Test., § 181. But counsel for appellee insist the ruling of the court below is in exact conformity with the ruling of this court in Connecticut Mut. Life Ins. Co. v. Ellis, supra. This is a misapprehension. In that case the witness stated "that he had read text books that he might be able to state why he diagnosed the case as delirium tremens;" and it was held "not unfair to the witness to call his attention to the definitions given in the books of that particular disease, and asking him whether he concurred in the definitions." And it was said: "That is in no just sense reading books to the jury as evidence, or for the purpose of contradicting the witness." The source of his professed knowledge was given, and it was allowed to show that he was mistaken by resorting to that source. In the present case, it has been

seen, the course pursued was entirely different. The witness based no opinion which he gave upon the authority of books, and they were only brought in to impair his evidence on cross-examination. City of Bloomington v. Shrock. Opinion by Scholfield, J.

OHIO SUPREME COURT ABSTRACT.*

DEED-EASEMENT RIGHT TO ALLEY.-A. owned adjacent lots lying north of an alley, and east of a street, and he laid out an alley extending east from the street on the west through the middle of the lots, and the part south of the alley he divided into sublots abutting on the alley, and made a plat of the same so divided. A. then sold to B. a sub-lot on the south side of this new alley, and prepared the deed for it by the aid of the plat, and showed both the deed and the plat to B., who insisted that the deed should contain a conveyance of the use of the new alley; and before executing the deed A. put into the granting clause of the deed the words: "The above named grantee, B., is entitled to the use of another alley lying north of the premises hereby conveyed. Possession to be given April 1, 1874; " then the deed was executed, the purchase money was paid, and the deed was delivered to B. As between A. and B., or her heirs or assigns, held, (1) A. is estopped from denying the existence and location of the new alley, and the plat and deed are conclusive against such denial. (2) A. thereby granted to B. an easement in the alley appurtenant to the sub-lot conveyed to B. See Parker v. Smith, 17 Mass. 413; O'Linda v. Lothrop, 21 Pick. 292; Stetson v. Dow, 16 Gray, 372; Smith v. Lock, 18 Mich. 56; Smyles v. Hastings, 22 N. Y. 217; White v. Flannigain, 1 Md. 525; Goddard Ease. 95, 96. Lowe v. Redgate. Opinion by Follett, J.

-

NOT FILED BEFORE

MORTGAGE-CHATTEL-VOID LEVY. A chattel mortgage is void as against execution creditors who assert their rights by levy after the execution of the mortgage and before its actual deposit with the proper officer. The deposit of a chattel mortgage with the proper officer, being only a substitute for the mortgagee's possession, it follows that in the absence of such deposit, possession taken by the mortgagee before others have acquired any interest in the property, makes his mortgage lien complete. Jones Chat. Mortg., § 237; Sawyer v. Turpin, 91 U. S. 114. It is contended that a reasonable time will be allowed the mortgagee to take possession of the goods, and as the deposit with the proper officer is a substitute for change of possession, a reasonable time will be allowed to file it after its execution and delivery. "The only effect of delay in recording or filling a mortgage is to render it void as against intervening purchasers, mortgagees, or creditors obtaining liens by attachment, judgment or execution. If the time within which a mortgage must be recorded or filed be not expressly provided by statute, it is sufficient that it be done at any time before possession is taken or interests or liens are acquired by others." Jones Chat. Mortg., § 237. Cass v. Rothman. Opinion by Owen, J.

to appear that the party against whom the relief is asked, after agreeing to the omitted terms, was cognizant of their subsequent omission from the document as engrossed, and was also cognizant of the fact that the other part was ignorant of the omission." Whart. Cont., § 206. "But mistake on the one side and fraud on the other will authorize a reformation." Welles v. Yates, 44 N. Y. 525. In the same action a written instrument may be reformed and relief granted on the contract as reformed. White v. Denman, 1 Ohio St. 110; Davenport v. Sovil, 6 id. 459; Insurance Co. v. Williams, 39 id. 584. "A party may prove, by parol, a mistake in a written agreement, and have it rectified and then specifically enforced." Waterman on Spec. Perf., § 254. (2) On trial of an ac. tion to reform a written substituted contract for fraud or mistake, and to enforce the same when reformed, or if the same could not be reformed theu to rescind the written contract, there may be given in evidence the original writing made by the same parties upon the subject-matter in dispute, and also the subsequent acts done or procured to be done by the party charged with the fraud and which tend to prove the fraud or mistake. (3) On such a trial the court may find that the written contract in dispute does not contain the true agreement of the parties, but if the party complaining neither pays back nor offers to return the money received by him under the contract, it is error to order the contract to be set aside and held for naught. Oakes v. Turquand, L. R., 2 H. L. 346; Clough v. R. R., 7 Ex. 26; Foreman v. Bigelow, 4 Cliff. C. C. 508; Lindsley v. Ferguson, 49 N. Y. 625. That the party seeking equity must do equity, as far as he can, is well settled. (4) "What the parties mean is to be carried into effect, no matter what are the words they use." Whart. Cont., § 202. (5) "A construction, adopted and acted on by both parties, will be regarded as worked into the contract." Whart. Cont., § 206; Stone v. Clark, 1 Met. 378; Caley v. P. & C. C. R. Co., 80 Penn. St. 363; West. R. v. Smith, 75 Ill. 496. Railroad Co. v. Steinfield. Opinion by Follett, J.

WORD PERSON."-A corporation may be a party to a submission to arbitration. Morse Arb. 5; Russ. Arb. 21; 6 Wait Act. and Def. 511; Brady v. Mayor of Brooklyn, 1 Barb. 584; Tuskaloosa Bridge Co. v. Jenison, 33 Ala. 476; Alex. Canal Co. v. Swann, 5 How. (U. S.) 83. "As a general proposition, municipal corporations have the same powers to liquidate claims and indebtedness that natural persons have and from that source proceeds power to adjust all disputed claims, and when the amount is ascertained, to pay the same as other indebtedness. It would seem to follow therefore that municipal corporations, unless disabled by positive law, could submit to arbitration all unsettled claims with the same liability to perform the award as would rest upon a natural person, provided, of course, such power be exercised by ordinance or resolution of the corporate authorities." Dill. Mun. Corp., § 478; City of Shawneetown v. Baker, 85 Ill. 563; Kane v. City of Fond du Lac, 40 Wis. 495; Remington v. Harrison County Court, 12 Bush (Ky.), 148. In this case the power was exercised by a resolution of the city council. Revised Statutes, section 5601, provides: "All persons who have any controversy, except when the possession or title of real estate may come in question, may submit such controversy to the arbitrament or umpirage of any person or persons, to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in the State." It is claimed that while the word " person may include public corporations, yet the "persons" who may have the benefits of an arbitration, are limited by section 4947 to private corporations,

ings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice; and the rule of the common law, that statutes in derogation thereof must be strictly construed, has no application to this part," etc. The arbitration statutes are enabling statutes, and were made to "assist the parties in obtaining justice," and should "be liberally construed." And the words, "all persons," used in section 5601, must include the individual persous who have a controversy with the municipal corporation; and such individual persons are given the benefits of an arbitration in such controversies. Springfield v. Walker. Opinion by Follett, J. [See 18 Am. Rep. 291; 34 Eng. 169; 16 W. Dig. 39.-ED.]

OHIO SUPREME COURT COMMISSION ABSTRACT.*

NEGLIGENCE-LEAVING HORSE IN STREET UNTIED— DIMINISHING DAMAGE EMPLOYING SURGEON.-L. & Co. carelessly and negligently left their horse, which was harnessed and hitched to their wagon, standing in a public street without being properly tied or guarded. The horse ran away, and the wagon violently collided with a wagon of H., in which he was sitting, whereby he received severe bodily injury. At the time of his injury H. was free from contributory negligence. Immediately after his injury he employed a physician "of good standing and reputation," placed himself under his treatment, and followed his directions. Held, that although the physician may have omitted to apply the remedy most approved in similar cases, and by reason thereof the damages of H. may not have been diminished as much as it otherwise would have been, he may still recover of L. & Co. for his actual damage. It seems to be well settled, that where one is injured by the negligence of another, if his damage has not been increased by his own subsequent want of ordinary care, he will be entitled to recover of the wrong-doer to the full extent of the damage, although the physician whom he employed omitted to apply the remedy most approved in similar cases, and by reason thereof the damage of the injured party was not diminished as much as it otherwise would have been. Lyons v. Erie R. Co., 57 N. Y. 489; Tuttle v. Farmington, 58 N. H. 13; Stover v. Bluehill, 51 Me. 439; Bardwell v. Jamaica, 15 Vt. 438; Collins v. Council Bluffs, 32 Iowa, 324; Rice v. Des Moines, 40 id. 638; Eastman v.Sanborn,3 Allen,594; Page v. Bucksport, 64 Me. 51. The collision must be treated as the proximate cause of Humphrey's damage. Insurance Co. v. Boon, 5 Otto, 117; see also Byrne v. Wilson, Irish R. 15, C. L. 332, 342. Loeser v. Humphrey. Opinion by Dickman, J.

ers.

ger of losing his entire debt for which the three notes were given, on accouni of the insolvency of the makAt the same time he was in danger of being compelled to pay the debt due to one of those makers. The injustice of allowing this is manifest, and gives rise to an equity in his favor to insist on a set-off, notwithstanding he has no such right at law. Pond v. Smith, 4 Conn. 297. Prior to the Code system a Court of Chancery enforced the right. Under the Code, § 5071 Rev. Stat., defenses legal and equitable are preserved. And 5076 Rev. Stat., provides for making a new party, if necessary, to a final decision upon a set-off, if owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim unless permitted to use it as a set-off. (2) The merger of a debt into judgment is not so perfect in equity as to preclude the judgment creditor from resorting to the original demand and the relations of the parties to it, for the purpose of enabling him to disclose and assert an equitable set-off. In Clark v. Rowling, 3 N. Y. 216, the decision was based on the principle that the demand on which a judg ment is rendered is not so complete as that courts may not look behind the judgment to see upon what it is founded, and to protect the equitable rights connected with the original relation of the parties. To the same effect are Wyman v. Mitchell, 1 Cow. [316; Raymond v. Merchant, 3 id. 147; Betts v. Bagley, 12 Pick. 572; Rawley v. Hooker, 21 Ind. 144. Baker v. Kensey. Opinion by Martin, J. [(2) See 38 Am. Rep. 665, 129.]

NEW JERSEY COURT OF CHANCERY ABSTRACT.*

CONTRACT-SPECIFIC PERFORMANCE-INJUNCTION.

(1) Courts of equity may compel the specific performance of a contract which the parties have agreed upon, and which is sufficiently certain and definite in its terms to enable the court to see what they meant, but it is entirely beyond the power of any judicial tribunal to make a contract for litigants, or compel them to make a contract with each other. The principle which must govern the decision of this case is free from all doubt. No court has power to make a contract for persons sui juris. No specific performance of a contract can be decreed in equity, unless the contract be actually concluded, and be certain in all its parts. If the matter still rests in treaty, or if the agreement, in any material particular, be uncertain or undefined, equity will not interfere. McKibbin v. Brown, 1 McCart. 133; S.C., on Appeal, 2 id. 498; Potts v. Whitehead, 5 C. E. Gr. 55; 8 id. 512; Whitlock v. Duffield, 1 Hoff. Ch. 110; S. C., on Appeal, 26 Wend. 55; Waterman Spec. Perf., §§ 141, 152. Specific performance will not be decreed unless it is shown that a contract has been concluded. The bargain must have been completely determined between the parties, and its terms definitely ascertained. So long as negotiations are pending over matters relating to the contract, and which the parties regard as material to it, and until they are settled and their minds meet upon them, it is not a contract, although as to some matters they may

*To appear in 39 N. J. Eq. (12 Stewart's) Reports.

be agreed. Brown v. Brown, 6 Stew. Eq. 650. There can be no doubt that in a certain class of cases, courts of equity will decree the specific performance of contracts which are incomplete or uncertain in a material particular, but such jurisdiction is never exercised, except in cases where the contract itself provides a method or standard by which it may be completed, or its uncertainty rendered certain. To illustrate: A contract for the sale of land, at a price to be agreed upon by the parties, will never be enforced in equity, for the reason that a further bargain must be made by the parties before the court can decree what the vendor shall receive for his land. But where the parties have agreed that the land shall be conveyed, not at a price to be agreed upon by themselves, but at a fair price or at a fair valuation, there the parties having fixed a standard or measure of value, without having designated any particular method for ascertaining the price, the court may, without making a contract, ascertain the price according to the standard fixed by the contract, and enforce the contract. Van Doren v. Robinson, 1 C. E. Gr. 256; Gaskarth v. Lord Lowther, 12 Ves. 107; Wilks v. Davis, 3 Mer. 507. But this is the extreme limit to which any court has ever gone. (2) Where an injunction is sought in aid of action for specific performance, if the complainant's case is strong enough to render it at all probable that the complainant may, on final hearing, be able to convince the court that he is entitled to relief, the court will, as a general rule, award the writ, but will refuse it in cases where it appears that the contract sought to be enforced has not yet been made, or if made, that it is so incomplete or uncertain as to be unenforceable. Domestic Tel. Co. v. Met. Tel. Co. Opinion by Van Fleet, V. C.

BANKRUPTCY-PROPERTY CONVEYED IN FRAUD OF CREDITORS ASSIGNEE RIGHT OF ACTION NOT IN

CREDITOR.-The right to recover property conveyed in fraud of creditors by a debtor subsequently adjudicated a bankrupt, is vested in his assignee alone, and the failure of his assignee to bring an action to recover the property, within the time limited by the bankrupt law, does not transfer the right to bring such action to the creditors of the bankrupt. A different rule seems to have prevailed in Virginia. Under the bankrupt law of 1841, the Court of Appeals of Virginia held that if the assignee of a bankrupt did not, within the time limited by that act, bring an ac tion to recover property which the bankrupt had conveyed in fraud of his creditors, any judgment creditor of the bankrupt might, after the assignee's right of action was barred by lapse of time, maintain an action in his own name to recover such property. This result was reached by the following argument. That while it was true there was an interval of time dur. ing which an exclusive right of action for such a purpose was vested in the assignee, and during which no creditor could sue, yet when that period had expired, and the assignee's right to sue had terminated by lapse of time, the creditor, whose right of action had not been wholly extinguished, but merely suspended, was remitted to his rights as they stood before the adjudication of bankruptcy. Tichenor v. Allen, 13 Gratt. 15. And the Court of Appeals of New York bave, in dealing with the recent bankrupt law, adopted a similar view. They declared that if an assignee in bankruptcy should neglect or refuse to reclaim property fraudulently transferred, the creditors might maintain an action to recover it, and if it was recovered the creditor prosecuting the action would be en. titled to the benefit of the property. Dewey v. Moyer, 72 N. Y. 70. But these decisions stand in direct conflict with those of the Supreme Court of the United States. That court has declared that the right to

bring an action to recover property conveyed by a bankrupt in fraud of his creditors, is vested in his assignee alone, and that the failure of the assignee to sue within the two years allowed by the bankrupt law does not transfer this right of property or right of action to the creditors of the bankrupt. Moyer v. Dewey, 103 U. S. 301; Trimble v. Woodhead, 102 id, 647; Glenny v. Langdon, 98 id. 20. In the second case cited, Trimble v. Woodhead, Mr. Justice Miller says: "The primary object of the bankrupt law is to secure the equal distribution of the property of the bankrupt of every kind among his creditors. This can only be done through the rights vested in the assignee and by the faithful discharge of his duty. Let us suppose however that a creditor is aware of the existence of property of the bankrupt sufficient to satisfy his own debt, which has not come to the possession or knowledge of the assignee. He has but to keep silent for two years, and then bring suit in his own name against the fraudulent holder of this property, and make his debt really at the expense of the other creditors; or he may have an understanding with the bankrupt, who after two years, and after his discharge from all his debts, may confess judgment to this creditor and furnish him the evidence to prove the fraud, and thus secure him a preference forbidden by the act itself." Another legal obstacle would seem to stand in the way of the complainants' success in this suit. An assignee in bankruptcy is the trustee of all the creditors of the bankrupt. A creditor may prove his debt at any time before the final distribution of assets is made. The Supreme Court of the United States hold that whenever a right of action, vested in a trustee, is barred by the statute of limitations, the right of the cestui que trust represented by the trustee is also barred. Meeks v. Olpherts, 100 U. S. 564. This doctrine has been applied to a right of action vested in an assignee in bankruptcy, and it has been held that if the right of action by the assignee is barred, the title of the alleged fraudulent grantee is unimpeachable by the creditors of the bankrupt. Trimble v. Woodhead, supra. McCartin v. Perry's Executor. Opinion by Van Fleet, V. C.

MARRIAGE-MARRIED WOMAN'S ACT-GIFT TO HUSBAND CONFIDENTIAL RELATION PRESUMPTION—

BURDEN OF PROOF.-The legislation of this State, eularging the capacity of a married woman to acquire aud dispose of property, does not give her capacity to make a legal contract with her husband. Chief Justice Beasley, speaking for the Supreme Court, says its 'object was to leave the husband and wife, touching their capacity to bargain together, on the ancient footing of the common law. The clause is virtually a legislative declaration that as heretofore they may enter, inter sese, into equitable agreements, but not into legal agreements. It was obviously intended that the court of equity should, as it had always done prior to the amplification of the rights of the wife, exercise a supervision over the engagements of married persons." Woodruff v. Clark, 13 Vt. 198. At common law, husband and wife were one person, so that neither could give the other any estate or interest. Co. Litt. 188 a. A wife may bestow her property by gift on her husband, or she may make a contract with him which will be upheld in equity, but such transactions are always examined by courts of equity with an anxious watchfulness and caution, and dread of undue influence; and if they are required to give sanction or effect to them, they will examine the wife in court, and adopt other precautions to ascertain her unbiased will and wishes. 2 Story Eq. Jur., § 1395; Clancy M. W. 347; 1 Bish. Marr., § 719; Grigby v. Cox,1 Ves. Sr. 517. Gifts by a wife to her husband,says Chancellor Kent, are to be closely inspected on ac