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and added interest to that amount, and found a definite sum. These findings seem conclusive; and whether or not these particular findings be before this court for review, the majority of the court think there was no error in finding that such payments were for charges in excess of rates authorized by law. The defendant should have known what were legal rates and should have charged no more.

The plaintiffs have paid to defendant these illegal | charges-money unjustly obtained; and the remaining question is, can the plaintiffs recover back the same?

The defendant denies the plaintiffs' right to recover back, on the ground that these illegal charges 66 were so paid voluntarily after the services for which the same were demanded had been fully rendered and performed," etc.

The plaintiffs paid the charges for each month at the end of the month, and as the plaintiffs and defendant did not stand on terms of equality, they so paid to secure transportation for the succeeding mouth. The defendant prescribed its own rates, and would carry the plaintiffs' freight only at the established rates, though these rates were illegal and unreasonable, and when as a common carrier it should have carried this freight at legal rates. The special master found that "the sums exacted were illegal and unauthorized, and plaintiffs were required to pay the same for the transportation of their property, without which the plaintiffs in each of said cases, by reason of the character of their manufacturing business, would have suffered great loss."

The defendant did not require the payments to be made in advance of carrying each shipment of freight, but the charges of each month were required to be paid at the end of the month or future freight would not be carried.

Plaintiffs could compel the defendant to carry their freight only by a resort to the courts and at the end of litigation. The history of these suits began in 1867, and just ending in 1884, shows that plaintiffs could not obtain speedy and adequate redress-such as would save their business and prevent loss-simply by a resort to the courts to enforce legal rights. And as defendant would not accept the payment of legal rates, and required the full payment of its illegal charges, the plaintiffs complaining and objecting to the increased and illegal charges, were forced to pay them. Their choice and volition were compelled. Such payments are not voluntary.

We will refer to some authorities and reasons of this position. "The common principle is that if a man chooses to give away his money, or to take the chance whether he is giving it away or not, he cannot afterward change his mind; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice." Pol. Prin. Cont. 523. These plaintiffs "really had no choice." In 1760, in Moses v. Macferlan, 2 Burr. 1005, Lord Mansfield said: "This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendants ought to refund. * ** *But it lies for * * * money got through * an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances." The plaintiffs paid this money in like situation.

* *

In Parker v. Great Western Ry. Co., 7 M. & Gr. 253, the court held that payments made to a common carrier to induce it to do what by law, without them, it was bound to do, were not voluntary, and might be recovered back. Add. Cont. *1043, approves this principle. Mr. Justice Matthews, in Swift Co. v. United States, 111 U. S. 29, approves the doctrine, and calls

it a

"wholesome principle." And in Baker v. City of Cincinnati, 11 Ohio St. 538, Gholson, J., approves the same authority. In Maxwell v. Griswold, 10 How. 242, the court said: "Now it can hardly be meant in this class of cases that to make a payment involuntarily it should be by actual violence or any physical duress."

In the case of Railroad Co. v. Lockwood, 17 Wall. 379, Mr. Justice Bradley says: "The carrier and his customer do not stand on a footing of equality. The latter is only one of a million. He cannot afford to higgle or stand out and seek redress in courts. His business will not admit of such a course. He prefers rather to accept any bill of lading, or sign any paper the carrier presents; often indeed without knowing what the one or the other contains. In most cases he has no alternative but to do this or abandon his business.

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In Beckwith v. Frisbie, 32 Vt. 559-566, it was said: "To make the payment a voluntary one the parties should stand upon an equal footing."

This is not a case of individuals dealing with each other on terms of equality; nor a case of payment of illegal charges to obtain possession of property; nor payment of illegal taxes to prevent the sale of property. Here the defendant was a common carrier of such freights as plaintiffs had for transportation; the State had given the defendant, through its purchase of this part of the road, its right to use this road, and had limited its rate of charges. The plaintiffs' business was dependent on transportation by the defendant, and they were entitled to have their freight carried at legal and reasonable rates. The defendant prescribed rates illegal and unreasonable, and required its agents to demand and receive such rates or not to carry the freight. Plaintiffs, objecting and protesting against the basis and the amount of the charges, paid them at the end of each month, and they so paid the illegal charges to procure the future transportation of their freight.

The case of Swift Co. v. United States, 111 U. S. 22, is very much like this. There the commissioner of internal revenue had acted upon a wrong basis in charging stamps for friction matches. The Swift Co. gave orders for stamps, and paid for each purchase within sixty days from the delivery of the stamps; and thus dealt from 1870 to 1878. No protest had been made by the company, though years before, in 1866, a member of the company "made repeated protests to the officers of the Internal Revenue Bureau against the methods of computing commissions" in similar cases.

The court held: "A course of business and a periodical settlement between the commissioner of internal revenue and a regular periodical purchaser of revenue stamps, entitled by statute to commission on his purchases, payable in money, which shows that the commissioner asserted and the purchaser accepted that the business should be conducted upon the basis of payments of the commissions in stamps at their par value instead of in money, does not preclude the purchaser from asserting his statutory right, if he had no choice, and if the only alternative was to submit to an illegal exaction or discontinue his business." And the court also held: "When the commissioner of internal revenue adopted a rule of dealing with purchasers of stamps which deprived them of a statutory right to be paid their commissions in money, and obliged them to take them in stamps, and made known to those interested that the rule was adopted and would not be changed, the rule dispensed with the necessity of proving in each instance or complying with it that the compliance was forced."

Mr. Justice Matthews said: "No formal protest made at the time is by statute a condition to the present right of action, as in cases of action against the

collector to recover back taxes illegally exacted;" and the court did not require any protest. The rule was adopted by the commissioner, and would not be changed on further application; and business could be transacted only on that footing; and they paid within sixty days. Here the rates were fixed by the defendant, and the shipper must pay or forego shipment, and plaintiffs paid within thirty days. In principle the cases are alike.

necessity of the appellee was so great and pressing as to deprive him of the freedom of his will.”

The case of Chicago & Alton R. Co. v. C., V. & W. Coal Co., 79 Ill. 121, is as follows: "Certain individuals constructed a railroad twelve miles long, extending from a coal mine, belonging to a coal company, to a station on the Illinois Central Railroad, and on the 30th of April, 1869, they sold the same to a railroad company, and turned it over to them, and on the same day the company purchasing it turned it over to another railroad company. The last-named company op

tween the first owners and the purchasers from them for three years, complying with the terms of said contract as to the rates of freight to be charged to the coal company for the transportation of its coal. The individuals building and selling the road and the coal company were the same. Held, that the railroad company last purchasing, by taking the road and recognizing the rates of freight established by the contract of sale, adopted the contract, and were bound by its terms, and that the coal company could maintain an action against them for a breach of it."

In McGregor v. Erie Ry. Co., 35 N. J. L. 89-113, plaintiff recovered back from defendant certain moneys unlawfully demanded and taken for transporta-erated the road in pursuance of the contract of sale betion of merchandise from Paterson to Jersey City. Bedle, J., said: "In these cases there was no express refusal, but I do not consider it necessary that the refusal should be express. It is sufficient if the person has just and reasonable ground to apprehend that unless the money is paid his goods will not be carried, or will be withheld. Where a corporation or person has the power to refuse a right to which a party is entitled, unless he complies with an unjust demand, they do not stand on an equal footing." And the court held: "But when they are not on an equal footing, and money is paid not by compulsion of law, but by compulsion of circumstances--as when it is paid to release goods from illegal restraint, which cannot otherwise be reasonably effected, or to compel the performance of a duty by others in order to enjoy or obtain a right -it may be recovered back. Under this head may be classed moneys paid under color of title or charges on turnpikes and railroads."

"Courts will not be illiberal in allowing a person to act upon his reasonable apprehension of such refusal, where the circumstances fairly show that unless he does so submit to the demand, his right will be withheld."

In Lafayette & Indianapolis R. Co. v. Pattison, 41 Ind. 312, the excessive charges were recovered back. The syllabus contains the following: During the rebelliou A. had a contract to furnish the government with a certain number of beef cattle during two months, and for the purpose of filling such contract, went to Chicago and made a contract with a railroad company to ship cattle for him to Indianapolis at $65 per car; and leaving an agent to ship, he returned to Indianapolis to receive the cattle. The cattle of the first shipment of two car loads were sent to the cattle yard of A., and after a few days a bill for $201.02 was sent to A., which he refused to pay, and informed the agent of the railroad company that he had a contract for the shipment at $65 per car; the agent denied knowledge of any such contract, and insisted that the bills must be paid as presented, and that he would not deliver any future car loads of cattle until the freight was paid, as he made it up from the way bills, and that the bills included other things besides freight, which he could not itemize. It was agreed that A. should pay under protest, and also future freight, and the cattle should be delivered as they arrived, and A. should reserve the right to recover any sum so paid anjustly. In pursuance of this agreement the agent delivered the cattle at the yard of A. as they arrived from time to time, and as soon as the bills were prepared they were paid by A.

"Held, that the payments were not voluntary, and that A. could recover all sums so paid in excess of his contract price."

And Buskirk, J., says: "We are of opinion that the money so paid could be recovered back if there had been uo valid agreement that it might be. While the appellants were not in the actual possession of the cattle of the appellee, they possessed such power and control over the shipment and delivery thereof as gave them an undue advantage over the appellee, and the

"In such a case, where the coal company had no other outlet for its coal, and the railroad company exacted more freight than by the terms of the contract they were entitled to, the coal company should be considered as under a kind of moral duress, and the payment by them of the freight demanded under such circumstances could not be considered voluntary, and they would have the right to sue upon the contract, and recover back the excess of freight paid over the contract rate."

Mr. Justice Breese said: "It can hardly be said these enhanced charges were voluntarily paid by appellees. It was a case of 'life or death' with them, as they had no other means of conveying their coals to the markets offered by the Illinois Central, and were bound to accede to any terms appellants might impose. They were under a sort of moral duress by submitting to which appellants have received money from them which in equity and good conscience they ought not to retain."

In Mobile & Montgomery Ry. Co. v. Steiner, 61 Ala. 559 illegal charges for transporting cotton were recovered back. The court held: "The nature of the business considered, the shipper does not stand on equal terms with the carrier, in contracting for charges for transportation; and if the shipper pays the rates established in violation of law by the carrier rather than forego his services, such payment is not voluntary in the legal sense, and the shipper may maintain his action for money had and received to recover back the illegal charge.'

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To the objection that the payments were voluntarily made, and therefore could not be recovered back, Stone, J., said: "Railroads have so expedited and cheapened travel and transportation; have so driven from their domain all competing modes of transportation, that the public is left no discretion but to em. ploy them, or suffer irreparable injury in this age of steam and electricity. They have their established rates of charges, aud these the shipper must pay or forego their facilities and benefits. To object or protest would be an idle waste of words. The law looks to the substance of things, and does not require useless forms or ceremonies. The corporation and the shipper are in no sense on equal terms, and money thus paid to obtain a necessary service is not voluntarily paid, as the law interprets that phrase."

The above citations are sufficient.

The foregoing principles and authorities show that the payments made in this case should not be regarded as voluntary, and that no principle of equity shown by

defendant can aid the defendant in withholding from plaintiffs the money so unjustly obtained by the defendant.

There was error in the courts below, and this court enters judgment for the plaintiffs for the amount found by the court below, together with interest on the same from the first day of that term of court, and costs of suit.

Johnson, C. J., concurs in holding that under the facts disclosed the excessive charges may be recovered back, but he dissents from the construction placed on section 12 of the act of 1848, which limits the rate of freight to five cents per ton per mile for a distance of thirty miles or more, and reasonable rates for less distances. He does not think that section applies to packages and parcels weighing less than a ton, and which by the usual custom are not shipped by weight. McIlvaine, J., dissenting: I differ from my brethren on the weight of testimony in this case. I think the payments of illegal rates were voluntary. The payments were not made at the time the goods were carried, but at the end of the month for past freights, and I have been unable to find any testimony satisfactorily showing that payments were exacted as a condition of future freightage, or paid on any reasonable belief that future freight would be refused unless payments were made.

Judgment reversed, and judgment for plaintiffs.

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On the 26th of May, 1874, she was the owner of a certain piece of land situated in Alameda county of this State, which was her separate property, it having been given to her by her father on the occasion of her marriage. On the day last named she signed a power of attorney, very general in its terms, appointing her father her attorney in fact to (among other things) "lease, let, demise, bargain, sell, remise, release, convey, mortgage and hypothecate" her said land upon such terms and conditions, and under such covenants as to him should seem fit. The power as well as the certificate of acknowledgment described the constituent as "Fannie P. Lawrence, formerly Fannie L. Hutchinson," and the power was so signed. The certificate however did not conform to the requirements of our statute prescribing the form for certificates of acknowledgment of married women.

When the power of attorney, so signed and acknowledged, was received by Edwin A. Lawrence, the latter was the owner of various certificates of purchase issued by the State of California for State lands, on which Gustave Reis held a mortgage executed to him by Lawrence. A part of the purchase-money of the lands had been paid, but a part of it remained unpaid. In due course of time an installment became due. Lawrence needed the money with which to make the payment. He negotiated with Mr. E. B. Mastick for the loan of the required amount on a mortgage he proposed to give on his daughter's land under and by virtue of the power of attorney. The power, the VOID DI- daughter testified on the trial of this case, she signed unwillingly and only after urgent solicitation on the part of her father; aud in answer to the question "why did your father urge you to execute the power of attorney to which you have referred?" she answered: "Because he said he had payments to make on certain lands of bis, and that in case of necessity he wished to raise enough money on my property to meet that demand; but that he hardly thought he would be obliged to do so; but he wished to have the paper on hand, so in case of need he could make use of it." In endeavoring to obtain money on the strength of his daughter's land, Edwin A. Lawrence was therefore but carrying out the purpose had in view by both when the daughter gave him the power.

SUPREME COURT OF CALIFORNIA.

REIS V. LAWRENCE.*

A woman living under her maiden name, apart from her husband, under a void decree of divorce, and acting and representing herself as a single woman, binds herself by her acknowledgment of a deed as a single woman.

ACTION on a note and to enforce a lien on land.

The opinion states the facts. The defendant had judgment below.

Edward J. Pringle, for appellant.

William Irvine, for respondent.

Ross, J. The defendant Edwin A Lawrence is the

father of the defendant Fannie P. Lawrence. The latter married one Hiram Hutchinson, in the city of San Francisco, on the 13th of April, 1871. In the year of 1873 she went to the Territory of Utah for the purpose of obtaining a divorce from her husband, and on the 6th of May of that year filed in the Probate Court of Salt Lake county, Utah Territory, a petition in which she set forth that Hutchinson deserted and

abandoned her on or about the first day of March, 1872, doument of her, and praying for a decree of divorce dissolving the bonds of matrimony existing between them. On the 15th of July, 1873, the court in which the proceeding was had entered a decree purporting to dissolve the bonds of matrimony existing between Mr. and Mrs. Hutchinson, and restoring to the petitioner

and had ever since continued his desertion and aban

her maiden name.

From the view we take of the case before us it will not be necessary to determine whether or not the de

cree of the Probate Court of Utah was validated by subsequent congressional action. Upon the entry of the decree on the 15th of July, 1873, Mrs. Hutchinson resumed her maiden name, and never afterward lived with Hutchinson, but has ever since that date lived and acted as a single woman, and borne her maiden

name.

*63 Cal. 129; S. C., 38 Am. Rep. 762, 764.

required money failed of accomplishment on the last His negotiations with Mr. Mastick for a loan of the

day allowed for the payment of the installment due
upon the certificates of purchase. In this extremity
he applied to Gustave Reis for the loan of the amount
necessary to make the payment, viz., $4,550. Gustave
furuished a part of the money, but got the greater
part of it from Ferdinand Reis, who is the plaintiff in
this action. The loan was accordingly made, and as
security for its payment Edwin A. Lawrence executed
to the plaintiff, Reis, a deed for the Alameda land as
attorney in fact for Fannie P. Lawrence. At the
time of this transaction, which took place on the 27th
of June, 1874, Edwin A. Lawrence represented to Reis
that his daughter had obtained a divorce from her
husband in Salt Lake, and had been restored to her
maiden name. Subsequently, to wit, on the 18th of
September, 1874, upon application made on behalf of
the plaintiff Faunie P. Lawrence executed to plaint-
iff a deed for the same land described in the deed

already executed to him by her father as her attorney
in fact, which deed expressed a consideration of
"This deed is given
$4,500, and contained the clause:
in confirmation of the deed given by me to said Reis
on June 27, 1874, by my attorney in fact, hereby rati-
fying and confirming the same. The certificate of
acknowledgment to this confirmatory deed described
the grantor as Fannie P. Lawrence (femme sole,,"
and complied with the requirements of the statute pre-

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scribing the form of such certificates for others than married women, butdid not conform to those in respect to the latter.

The case further shows that in the month of July, 1877, Hutchinson commenced an action in the District Court of Marin county of this State against the defendant Faunie, for the purpose of obtaining a decree dissolving the bonds of matrimony alleged to have existed between them since the 13th of April, 1871, on the ground that the defendant therein, on or about the 1st of July, 1872, deserted the plaintiff in that action, and from that time forth lived apart from him, and denied him all marital rights. After trial the court in which the action was brought decreed the plaintiff a divorce on the ground stated in his complaint.

We assume that the Utah decree was invalid. Nevertheless the fact remains that upon the rendition of that decree the defendant Fannie P. Lawrence resumed her maiden name, and thence hitherto continued to act and represent herself as a femme sole. As such she signed and acknowledged the power of attorney to her father for the purpose of enabling him to borrow money on the strength of her land. On the security of that land, and on those representations, the father did borrow money, and to secure its repayment executed to the lender, pursuant to the power, a deed for the premises. Subsequently and in consideration of that loan, the daughter still acting and representing herself as a femme sole, executed as such to the lender another deed for the premises, in which she recited that it was given in confirmation of the deed previously executed by her attorney in fact. At this day she seeks to avoid the effect of these conveyances to the injury of the party who parted with his money on the strength of her actions and representations by saying that she was all along a married women, and that the certificate of acknowledgment to the instruments executed by her were not in accordance wth the form prescribed by statute for married women in that they did not recite that she, was examined "without the hearing of her husband," a husband who, according to her petition for divorce filed in Utah, had deserted and abandoned her on the 1st day of March, 1872, and whom, according to the record put in evidence from the District Court of Marin county, she had deserted and abandoned in July of the same year, and between whom no marital relations other than the dry, legal relation in fact existed. Of course, under such circumstances the reason for the rule that requires, in cases of married women, the certificate of acknowledgment to recite an examination without the hearing of the husband, dues not exist. At least as early as July, 1872, the defendant, Annie, lived apart from, and independent of her husband. Later on, in 1873, she resumed her maiden name, and thence hitherto acted and represented herself as a single woman. In that character she executed the instruments in question, and in that character, in our opinion, a court of equity ought to regard her in the construction of them. As giving support to these views,see Richeson v. Simmons, 47 Mo. 20; Rosenthal v. Mayhugh, 33 Ohio St. 155; Patterson v. Lawrence, 90 Ill. 174.

We find it unnecessary to determine whether the rules based on the common law relation of husband and wife are to be applied to their full extent in this State where the wife is now by statute empowered to dispose of her separate estate without the consent or concurrence of her husband.

It follows that the plaintiff is entitled to the lien prayed for.

Judgment and order reversed, and cause remanded for a new trial.

Morrison, C. J.. Sharpstein and Myrick, JJ., con

curred; McKee and Thornton, JJ., dissent. [See 36 Am. Rep. 762, 764.]

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

HIGHWAY-DEFECT-PROXIMITY TO HIGHWAY.-In order that the plaintiff should recover it was necessary that he should show that the defect in the highway "which caused the injury existed either in the highway or so immediately contiguons to it as to make it dangerous to travel on the highway itself." Sparhawk v. Salem, 1 Allen, 30. Alger v. Lowell, 3 Allen, 402; Adams v. Natick, 13 id. 429; Puffer v. Orange, 122 Mass. 389, cited and quoted from. In determining whether a defect is in such close proximity as to render travelling upon it unsafe, that proximity must be considered with reference to the highway 66 as travelled and used for the public travel," rather than as located. Warner v. Holyoke, 112 Mass. 362. While it may be impossible to define at what distance in feet and inches a dangerous place must be from the highway in order to cease to be in close proximity to it, and while it must often be a practical question, having regard to many circumstances, to be decided by a jury, yet it has been held in certain cases as matter of law that a jury was not authorized in finding that the dangerous place was in such proximity to the highway as to reuder travelling thereon unsafe. Murphy v. Gloucester, 105 Mass. 470; Puffer v. Orange, ubi supra; Daily v. Worcester, 131 Mass. 452, cited. In all these cases the place where the accident happened was reached by passing over a level space which intervened between it and the highway, yet these defective places were held not dangerously contiguous. The case at bar is within the rule thus adopted. The causes of the injury to plaintiff were the darkness, his failure to keep the carriage path, his travelling on that made by foot passengers at the extreme edge of the highway as located, and the subsequent misconduct of the horse. It cannot be said that a bank thirty-four feet from the travelled way as used rendered it unsafe to travel thereon. This distance was sufficient to provide for those contingencies which from time to time might render necessary a road somewhat wider than that actually travelled. Barnes v. Inhabitants of Chicopee. Opinion by Devens, J.

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· ILLEGAL CONSIDERA

NEGOTIABLE INSTRUMENT TION-SUPPRESSING CRIMINAL PROSECUTION.-When a person is under arrest on a criminal charge, to obtain from him and his friends a promissory note in paymeut of an alleged claim under a threat of prosecuting the complaint if the note is not given, and under au agreement not to prosecute it if the note is given, is in violation of law equally whether the accused is guilty or not guilty; and the guilt or innocence of the accused cannot be tried in this action. Such a proceeding is an abuse of criminal process, and such an agreement tends to the suppression of evidence, and impedes the due course of public justice. Partridge v. Hood, 120 Mass. 403; Clark v. Pomeroy, 12 Allen, 557; Bigelow v. Woodward, 15 Gray, 560. Gorham v. Keyes. Opinion by Field, J. [Decided Oct., 1884.]

NEBRASKA SUPREME COURT ABSTRACT.

SPECIFIC PERFORMANCE-RESCISSION.-A. purchased of B. a certain lot, paying thereon $50 in cash, and agreeing in the deed as part of the consideration to erect a building of a certain description thereon. Held, that B. was entitled to the performance of the

contract, and in case of the failure of A. after a reasouable time, upon tendering back the money received, to a rescission. The right to relief originated in the fraud, which but for the interposition of the court, would be perpetrated upon the complaining party. Will. Eq. Jur. 302; Story Eq. Jur., § 692 et seq. Thus in Reid v. Burns, 13 Ohio St. 49, where the plaintiff had caused the title to his homestead to be conveyed to his son in consideration that he would support him during life, which the son afterward refused to do, it was held that the father was entitled to a rescission of the contract and a reconveyance of the premises. And in Stines v. Dorman, 25 Ohio St. 580, it was held that a stipulation in a deed of conveyance whereby the grantee, in part consideration for the conveyance, agreed that the premises should not be used or occupied as a hotel, bound both the grantee and all claiming under him. It would be a reproach upon the law could a party secure the title to real estate in consideration, in whole or in part, that he would erect certain buildings thereon, and upon receiving a conveyance refuse to perform his agreement. The law favors good faith and fair dealing. These require the defendant to erect the building in question according to his agreement, or in case of his failure to do so within a reasonable time, submit to a cancellation of his deed. In a contract of this kind a court will look at the entire transaction, and grant or withhold relief as the circumstances of the case may seem to require; but it will uphold fair dealing wherever it is possible to do so, and to that end will enforce specific performance of an agreement clearly proved, whenever an action for damages will not afford adequate remedy. Willard v. Ford. Opinion by Maxwell, J.

[Decided Oct. 8, 1884.]

PARTIES-PARTNERS-ACTION MUST BE AGAINST ALL. -The obligation of a partnership to pay a sum of money is the joint obligation of all the members of a firm, and an action against the members of such firm to recover a debt or obligation owing by it must be brought against all the members of the partnership. In Bliss Code Pl., § 91, n., it is said: “At common law, where there is a joint obligation or undertaking, in an action upon it all who thus join must be made defendants; and in determining whether it is joint the rule is that several persons contracting together with the same party for one and the same act shall be regarded as jointly, and not individually or separately liable, in the absence of any express words to show that a distinct as well as an entire liability was intended to fasten on the promisors." Thus contracts made by partners with third persons are joint, and all must be joined in an action; and so with promissory notes and other instruments or agreements, made by more than one, when the agreement is general; as we hereby agree or hereby promise or bind and obligate ourselves, etc. Implied obligations are joint when the facts from which the promise is implied apply equally to more than one. Partnership debts and debts of joint-stock companies are always joint; and inasmuch as express words are necessary to make a several agreement, and especially one that is joint and several, the absence of such words makes it on the face of it joint. "This being the rule of the common law, it is evident that the rule remains in this State unless changed by statute, for the reason of the rule exists

the same as heretofore. The obligation being joint it denotes but a single indivisible claim; and so all the obligors constitute, as it were, one person owing a single debt, and no one owes any part of it. Hence the necessity of bringing all before the court, and no Id., § 92. Our statute has not changed the others. rule. The law of this State upon this question is a lit

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eral copy of the law of New York, which has also been adopted by the States of Ohio, Wisconsin, Minnesota, North Carolina, South Carolina, Florida, Oregon and perhaps others. This question has been passed upon by the Supreme Court of Ohio, and the rule is settled in that State that the Code, as well as the common law, requires all jointly liable to be made defendants. Bates Code Pl., § 1, p. 47; Hempy v. Ransom, 33 Ohio St. 315; Bazell v. Belcher, 31 id. 572. The same rule seems to be recognized in this State. See Leech v. Milburn Wagon Co., 14 Neb. 109; Fox v. Abbott, 12 id. 328, Maxw. Just. Pr. 28. Bowen v. Crow. Opin. ion by Reese, J.

[Decided Oct. 8, 1884.]

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EMINENT DOMAIN-DAMAGES APPEAL — INJUNC TION.-Where a public road has been duly laid out, a claim for damages made by a land-owner and allowed, and no appeal taken, a court of equity will not enjoin the opening of the road upon the ground that the damages allowed such land-owners were inadequate. Upon a petition duly signed as required by law for the location or vacation of a public road, the county commissioners are duly invested by the statute with authority in the premises. The extent to which error will lie to the District Court to correct their proceedings is not now before the court, and need not be considered; but in the absence of some equitable grounds for relief, such as fraud, corruption or undue means, error cannot be corrected by injunction. McClelland v. Miller, 28 Ohio St. 488; Frevert v. Finfrock, 31 id. 627. In the case last cited it is said: "For a stronger reason where the regularity of the proceedings is the ground of objection, the claimant will not be permitted to resort to the remedy of injunction, but will be confined to his appeal, or if the proceedings are so erroneous as to be reversible, to his petition in error. High Inj., $$ 30, 129, 131. The reason is the aggrieved party has a full and adequate remedy at law, and has no occasion to resort to a court of equity for redress. Coe v.Columbus, etc.,R. Co.,10 Ohio St. 372; Coughron v. Swift, 18 Ill. 414; Winkler v. Winkler, 40 id. 179; Poage v. Bell, 3 Rand. 586; Webster v. Couch, 6 id. 519; Akrill v. Selden, 1 Barb. 316; Wooden v. Wooden, 2 Green Ch. 429. Where a full and adequate remedy is provided by statute a court of equity will not assume jurisdiction and enjoin proceedings under such remedy. Brown's Appeal, 66 Penn. St. 155; Wooden v. Wooden, 2 Green Ch. 429. The principal ground of complaint in the petition is that the damages awarded for the location of the road were inadequate. But the statute gave the plaintiff the right to appeal to the District Court. This, so far as appears, he failed to do. It would seem therefore that he was satisfied with the amount of the award. In any event the statute gave him a plain, adequate remedy, which if he neglected, he cannot now invoke the aid of a court of equity to cure his own laches. Neither the pleading nor proof justifies the interposition of a court of equity. Hopkins v. Keller. Opinion by Maxwell, J. [Decided Oct. 14, 1884.]

NEW JERSEY SUPREME COURT ABSTRACT.*

CORPORATION-PRESIDENT-NO POWER TO EXECUTE BOND-JUDGMENT — RECEIVER.- The president of a corporation has no power, in virtue of his office as

president, to execute a bond and warrant of attorney

for the entry of a judgment by confession against the corporation. The powers of the president of a corporation over its business and property are strictly the powers of an agent-powers delegated to him by the *To appear in 46 N. J. L. Reports.

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