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company, even if it had acquired title to the premises in question by voluntary conveyance, to use the slip in question for ferry purposes, or to exclude canal boats and barges, nor could it, without express authority of the Legislature, have excluded the general public from the use of the slip, even after the privileges of the canal boats and barges had been taken away. Hence the necessity of providing that the slip might be devoted to ferry purposes, so that as soon as the ferry company acquired the title it might use the property. But as has before been shown, the slip was devoted to no exclusive use, and the owners were not deprived of any of their rights until after the acquisition of the title. Nothing was intended to be taken from the owners, nor were they restricted in the use of their property until they received their just compensation, and if before the institution of the proceedings, they made any use of the property by which third parties acquired any interest therein, that interest would also have to be extinguished on making compensation.

Criticisms are made upon the form in which the authority to exercise the power of eminent domain is conferred. The language of the act of 1882 is that the lessees shall acquire title to the property "in the manner and by the proceedings provided by law for acquiring title to lands for railroad use by railroad corporations, so far as the same are applicable thereto," excepting that certain allegations which the general railroad law requires to be contained in the petition respecting stock subscriptions, surveys, maps, etc., may be omitted.

The objection that this reference is indefinite does not strike us with any force. The act is in a stereotyped form adopted in almost innumerable statutes, where the power of eminent domain is intended to be delegated to a corporation, and by long use it must have acquired a definite meaning. It can refer to nothing else than the general railroad law. The criticism is that it might have been intended to refer to the law of 1875 for the construction and operation of steam railways in the counties of this State. This construction is quite inadmissible. The reference to the law for acquiring title to lands for railroad use must be deemed to have in view the general law, and not a law applicable only to a specific class of railroads. If any special indication of intention were required it would be found in the fact that the allegations which, by the act of 1882, the applicants are authorized to omit from their petition, are required by the general railroad law and are not required by the act of 1875.

The objection that this reference to the general railroad law to regulate the mode of procedure for acquiring title contravenes section 17 of article 3 of the Constitution is met by the decision of this court in the case of People v. Banks, 67 N. Y. 575.

The orders of the General and Special Terms should be reversed, and the proceedings remitted to the Special Term to appoint commissioners.

All concur.

Ordered accordingly.

[A Legislature may empower a city to grant an exclusive license to ferry across a navigable river, and the conferring of the power to grant or refuse such license authorizes the granting of an exclusive privilege. Burlington, etc., Ferry Co. v. Davis, 30 Am. Rep. 390. See also Montgomery v. Multnomah, 29 Alb. L. J. 333. -ED.]


DAMAGES-FRAUD BY AGENT-PURCHASE PRICEFALSE REPRESENTATIONS AS TO.-The complaint in this action seems to have been framed upon the theory

that the rule of damages in an action by a principal against an agent, who had defrauded him in purchasing property, by representing that be paid a larger price than it was actually obtained for, upon an offer to surrender the property to the agent and recover of him, is its whole purchase-price. We think this theory is erroneous. The contract of purchase made with the vendor was precisely the contract which the plaintiff authorized his agent to make, and the principal could not therefore rescind that contract by reason of any fraud perpetrated upon him by his own agent, to which the vendor was not a party. Upon the execution of that contract the title vested in the plaintiff, and there is no principle of law upon which he could compel the agent to assume the ownership and stand the hazard of the speculation. In an action by the purchaser against the agent for such fraud the rules of damages would be those only which he actually suffered from the fraud. This would not necessarily or probably be the price paid. Not only therefore was the theory of the complaint erroneous, but the evidence and the findings of the court below show that the defendant was not the agent of the plaintiff, but even if he should be so considered, that no fraud was committed by him, except in abusing the confidence of his employer by paying a larger price for the stock bought than it apparently could have been purchased for. If upon the facts found by the referee such a construction could be put upon them as would make the defendant the agent of the plaintiff, a recovery could have been sustained only for the enhanced price paid by the agent over what the stock could have been purchased for by him, or at least for the amount allowed by the vendor to the agent for his services in effecting the sale; but this ground of recovery was not only contrary to the theory of the action stated in the complaint, but was expressly disclaimed by the appellant on the trial of the case as well as on the argument before us. The only possible theory in the case upon which the plaintiff could recover having been disclaimed by him, no alternative is left us but to affirm the judgment. McMillan v. Arthur. Opinion by Ruger, C. J.

[Decided Jan. 27, 1885.]

PARTITION-LITIGATING VALIDITY OF MORTGAGE-MORTGAGE FORECLOSURE MERGER OF DEBT-LIMITATION-PRESUMPTION OF PAYMENT.-In defendant; the lien of his mortgage being questioned, an action for partition, O., a mortgagee, was made a he answered alleging it to be a valid and subsequent lien, and asked that the premises be declared subject thereto, or that it be paid out of the proceeds of sale if a sale is decreed. O. appeared and took part in the trial. An interlocutory judgment was rendered, adjudging that the mortgage was not a valid lieu. Held, that as O. had, without objection, then submitted his rights to the court, and sought to have them re-enforced, conceding he could not have been compelled thus to litigate them, he could not raise the objection on appeal, and this, although he asked the trial court to find as a conclusion of law that no affirmative relief could be given against him in that form of action. Jordan v. Van Epps, 85 N. Y. 427. Until the bond or debt, to secure which a mortgage is given, is fully paid by the execution of the decree, or otherwise, the mortgagor cannot require the bond and mortgage to be returned to him, or canceled. In re Costar, 2 Johus. Ch. 503. The debt upon the bond is then secured by the mortgage and also by the decree. Yet by this double security it is not placed on any different footing from a debt due upon bond and mortgage. The entering of a decree of foreclosure is not necessary to give security to the debt, for the lien subsists. Lansing v. Capron, 1 Johns. Ch. 617. The decree is a means


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only of enforcing the lien of the mortgage and so rendering it available. Bucklin v. Bucklin, 1 Abb. Ct. of App. Dec. 242. That lien remains until the debt is paid or discharged. Neither the foreclosure suit nor the decree affects that, nor does either impair the mortgagor's right to redeem. That right remains the same after decree and until an actual sale of the mortgaged premises under it. Brown v. Frost, 10 Paige, 243. So notwithstanding the decree, the lien is liable to be defeated by the same presumption founded upon lapse of time. If the mortgage stands alone, without payment or proceedings to enforce it for twenty years, the presumption of payment accrues. If by virtue of foreclosure a new 66 security" has been taken, the same policy will, under the same circumstances, raise the same presumption. Upon this principle it has been held that where there had been a foreclosure sale, not followed by a conveyance to the purchaser, or any recognition of the mortgage by the mortgage debtor, it will be presumed after the lapse of twenty years that the land had been redeemed from such sale. Reynolds v. Dishon, 3 Bradw. (Ill.) 173. The mortgage here, of which Q.was the assignee, matured so as to be the cause of action in foreclosure, and judgment was obtained on the 29th of April, 1848. Conceding that by stipulations in the mortgage of 1850, enforcement by sale was stayed for ten years, he was at liberty to proceed upon the decree and also on that mortgage in 1860. This action was commenced in July, 1881, and thereafter, and not before, set up his judgment and mortgage. This was more than twenty years after the cause of action under any construction accrued, aud a recovery upon either is barred whether the question is considered under the limitation prescribed by the Revised Statutes (title 2, part III, ch. 3, 2 R. S. 295, § 90), or the Code of Procedure (Laws of 1848, ch. 438, § 90), or the Code of Civil Procedure, § 381. No proof was given to take either claim out of the operation of the statute. The policy of the law and substantial justice required that judgment should be given against them. Barnard v. Onderdonk. Opinion by Danforth, J. [As to Merger see 38 Am. Rep. 129.-ED.] } [Decided Feb. 10, 1885.]

LIMITATION--STATUTE-TRUSTEE OF MANUFACTURING COMPANY-COVENANT TO PAY TAXES.- A company, of which defendant was trustee, hired of the plaintiff certain premises for the term of six years and six months from Nov., 1872, and agreed to pay all such taxes and water-rates as might be imposed upon the demised premises during each year, and if they "should not be so paid before the first day of February next after the same should have been imposed, then to pay to the plaintiffs on that day, as additional rent, whatever sum might be necessary to pay said taxes and Croton water-rates for such year, or either of the same remaining unpaid, with all the penalties and interest accrued thereon. The corporation failed to make its annual reports in 1873, 1874 and 1875, as required by the twelfth section of the act of 1848, and this act was brought on Jan. 14, 1878, to charge him with certain debts of the company existing, as is alleged, at the time of such defaults. Held, that the liability of the company was upon the covenant to pay the water-rates and taxes. The liability of the defendant depended upon the combination of three circumstances, viz., the existence of the debt, the existence of the default in making the report, and the trusteeship. Shaler, etc., Quarry Company v. Bliss, 27 N. Y. 297; Duckworth v. Roach, 81 id. 49. It is well settled that if there be no obligation giving a present right of action against the company, there is no debt which can be demanded as a penalty against the trustee. Jones v. Barlow, 62 N.

Y. 203; Whitney Arms Co. v. Same, 63 id. 62; 68 id. 34, It is therefore as affecting both appeals, material to ascertain the true construction of the terms of the covenant. So far as it requires the company (the lessee) to pay and discharge water-rates and taxes, it is precisely like the covenant which lay at the foundation of the case of Rector, etc., v. Higgins, 48 N. Y. 532, and if it went no further, the decision then made would require us to hold, that a right of action against the company accrued on its failure to pay the rates and taxes when imposed, that is, in May and September of each year. That action however was for damages, and when presented to the Appellate Court, the right of the plaintiffs to maintain it at some time was not disputed, and the only question raised related to their doing so before actual payment of the assessments then in question. But in the case before us, the covenant goes further, and provides that if not so paid before the first of day of February next after they are so imposed, the company on that day will pay the amount of them as additional rent to the lessor. Here are two things to be done, and the obligation to perform one depends upon the non-performance of the other as a condition precedent, and as that depends upon the will of the promisor, it is in substance an alternative contract, and in such a case the party charged may elect which of the two alternatives he will perform. In effect the company said, we will either pay the taxes when they become due to the city authorities, and so relieve the demised premises, or as in case we do not, you will be required to do so to protect your property, we will on the first of February pay to you the sum of them, with interest and such peualties as are incurred. The cause of action did not accrue against the company until its failure to comply with the second alternative. That occurred on the first day of February, 1874, and as the plaintiffs could then have sued the company, so also they could have sued the defendant. At that moment therefore the short statute of limitatious prescribed to this class of actious commenced running in his favor, Shaler, etc., Co. v. Bliss, supra; Merchants' Bank v. Bliss, 35 N. Y 412; Miller v. White, 50 id. 137; Jones v. Barlow, supra; Losee v. Bullard, 79 N. Y. 404, aud before the commencement of this action the bar fell. The statute operates upon the remedy, and the omission of the creditor to pursue it cannot stop its running. The liability of the trustee was imposed by statute and the benefit and suit therefor are limited to the creditor as the one aggrieved. In such a case when the statute of limitations begins to run nothing subsequent will stop it. But the question now before us is directly within the principle of the decision of this court in Losee v. Bullard, supra, and permits no further discussion. It can make no difference that the company in this case continued to transact business. The plaintiffs were not required to sue the trustee, but could not, by omitting to do so, prevent the application of the statute. Rector, etc., v. Vanderbilt. Opinion by Danforth, J.

[Decided Feb. 10, 1885.]

CONTRACT-PUBLIC OFFICER-PERSONAL LIABILITY —PUBLISHING NOTICES -TAX SALE-ACT 1878, CH. 65. -This action was brought against defendant as treas. urer of the county of Ulster, to recover the alleged contract-price agreed to be paid by him, as such officer, for publishing notices of tax sales in a newspaper of which plaintiff was the proprietor. The compensation to which the plaintiff is entitled for publishing the advertisement of the tax sale in Ulster county is governed by ehapter 831 of the Laws of 1869. The provis ion in the sixth section of chapter 65 of the Laws of 1878, that "the publishing of the said notice is not to exceed the sum of $2 for each newspaper so publishing

each of the several notices," is a limitation for the protection of the owners of property advertised for taxes and not an authority to the treasurer to subject the property advertised to expenses for advertising beyond the sum fixed by the act of 1869. The two acts are not inconsistent and are to be construed together. The action is brought against the defendant in his official character, and the plaintiff disclaimed on the trial any right to charge him personally on the contract alleged. The contract was beyond the scope of his authority as treasurer and was not binding upon him in his official character or upon the county of Ulster. Boots v. Washburn, 79 N. Y. 207. Crouch v. Hayes. Opinion per Curiam.

[Decided Feb. 10, 1885.]


CARRIER-SEPARATION OF PASSENGERS ON ACCOUNT OF RACE OR COLOR-ACCOMMODATIONS MUST BE EQUAL. -On a night steamboat plying on the Chesapeake bay colored female passengers may be assigned a different sleeping cabin from white female passengers. The right to make such separation can only be upheld when the carrier in good faith furnishes accommodatious equal in quality and convenience to both alike. Citing U. S. v. Buntin, 10 Fed. Rep. 739; Gray v. Cincinnati S. R. Co., 11 id. 683. The Sue. Opinion by Morris, C. J. Dist. Ct., Dist. Md., Feb. 1885. [See 8 Am. Rep. 641; 41 Am. Dec. 482.]

VENDOR AND VENDEE-RECORD OF AGREEMENT-ENTRIES IN INDEX-NOTICE.-C. and the American Emigrant Company owned certain interests in swamp lands, under the Iowa Swamp Land Act, and C. entered into a written agreement with the company, which was in effect a conveyance of his interest. The agreement was duly recorded, and in the index C.'s name was written in the grantor column, the company's name in the grantee column, in the column headed "character of instrument" was written "6 agreement," and in the description column was the entry, "with regard to swamp and overflowed lands." Subsequently S. purchased a portion of the lands. Held, that the entries upon the index were sufficient to put him on inquiry, and that he was bound thereby. The decisions of the Supreme Conrt of Iowa on this question are clear and decisive. In Calvin v. Bowman, 10 Iowa, 529, and White v. Hampton, 13 id. 260, it was held that the index was sufficient to charge notice, although no description of the property was entered on the index, but simply the words, "See record." In Bostwick v. Powers, 12 Iowa, 456, the entry upon the index was "Certain lots of land," and it was held that this was sufficient. In Barney v. Little, 15 Iowa, 535, it is said to be the settled law of the State that "it is not necessarily and essentially a prerequisite to a valid registration that the index should contain a description of the lands conveyed; it is sufficient if it points to the record with reasonable certainty." In Jones v. Berkshire, 15 Iowa, 248, the rule is stated to be that "if the index discloses enough to put a careful and prudent examiner on inquiry, and if on such inquiry the adverse title would have been ascertained, the party will be held to notice." American Emigrant Co. v. Call. Opinion by Shiras, J. Cir. Ct. S. D. Iowa, Jan. 1885. [See 45 Am. Rep. 189; 29 Alb. L. J. 65.-ED.]

PATENTS-PUBLIC USE-SALE TO TEST MACHINEPRESUMPTION.—A single sale by an inventor of a machine embodying his completed invention more than *Appearing in 22 Federal Reporter.

two years before his application for a patent, will not render the patent void, where such sale is made for less than the value of the machine, without profit to the inventor, for the sole purpose of testing it, and with the understanding that it will be taken back if it does not work satisfactorily. Upou the whole evidence. it is plain that the transaction was altogether experimental; therefore the invention was not "in public use or on sale" within the meaning of the statute. Birdsall v. McDonald, 1 Ban. & A. 165; Elizabeth v. Pavement Co., 97 U. S. 126; Campbell v. Mayor, etc., 9 Fed. Rep. 503; Graham v. Geneva Lake Manufacturing Co., 11 id. 138; Graham v. McCormick, id. 859. (2) It being once shown that the use is experimental, then upon the question of its reasonableness in point of duration, every presumption should be made in favor of the inventor. Innis v. Oil City Boiler Works. Opinion by Acheson, J. Cir. Ct., W. D. Penn., Jan. 1885. [See 1 Fish. Pat. Cas. 1.-ED.]

PROCESS-SERVICE ON COMPLAINANT OR NON-RESIDENT DEFENDANT ATTENDING ON TRIAL.-A non-resident defendant in attendance upon the trial of his case, at which his presence is necessary both as a witness and for the purpose of instructing his counsel, is protected while in such attendance from service by summons of a new writ or complaint against him. The authorities upon the general question of the protection of nonresident parties and witnesses from the service of process, while they are in attendance upon the trial of cases in which they are concerned, are very numerous. It is sufficient to cite only those which bear upon the precise point in this case, and which are: Matthews v. Tufts, 87 N. Y. 568; Parker v. Hotchkiss, 1 Wall. Jr. 269; Lyell v. Goodwin, 4 McL. 29; Halsey v. Stewart, 4 N. J. L. 366; Miles v. McCullough, 1 Binn. 77. The decision is confined to the case of a non-resident defendant; because the Supreme Court of Connecticut held, in Bishop v. Vose, 27 Conn. 1, that a non-resident plaintiff was not protected, while in attendance upon the trial of his case in this State, from the service of a new writ by summons. There is perhaps a reason why a plaintiff who has voluntarily sought the aid and the protection of our courts, should not shrink from being subjected to their control, which does not apply to the condition of a defendant whose attendance is compulsory; and therefore I do not intend to express dissent from the doctrine of the Connecticut case, but to limit this decision to the facts which are before me. Wilson Sewing Machine Co. v. Wilson. Opinion by Shipman, J. Cir. Ct., Dist. Conn., Jau. 1885. [See 30 Alb. L. J. 117; 38 Am. Rep. 717.- ED.]

CONSTITUTIONAL LAW-POWER TO LICENSE-TAXREGULATING WASH HOUSES.-The council of Portland was authorized "to regulate" wash houses, and thereupon ordained that the proprietor of such a house should take out a license quarterly and pay therefor the sum of $5, or $20 a year, and in default thereof should be liable to fine and imprisonment. Held, that while the council had power to require the license as a means of regulating the business, the sum charged therefor was manifestly so far in excess of what was necessary or proper for that purpose that it must be considered a tax, and the ordinance imposing it is therefore so far void. In support of the proposition that the power to regulate a wash house does not include the power "to license," counsel for the petitioner cites Burlington v. Bumgardner, 42 Iowa, 673; Com. v. Stodder, 2 Cush. 562; St. Paul v. Traeger, 25 Minn. 248; Corvallis v. Carlile, 10 Oreg. 139; Dunham v. Rochester, 5 Cow. 464; Barling v. West, 29 Wis. 314; Dill. Mun. Corp., § 361. While counsel for the respondent cites to the contrary Burlington v. Lawrence, 42 Iowa, 681; Chicago P. & P. Co. v. Chicago, 88 Ill. 221;

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the fees charged by her counsel for prosecuting a suit
against him for a divorce a mensa et thoro, pending
which suit he died. But if it be made to appear affirm-
atively that the suit was reasonably and justifiably in-
stituted, counsel are entitled to recover from the hus-
band's administrator reasonable fees for services ren-
dered therein. It has long ago been held that where a
wife has been turned out of doors and threatened by
her husband, and she employed an attorney to
exhibit articles of the peace against him, the
husband was liable to the attorney for the payment of
his charges; for, as was said by the court, whenever
the husband by his conduct compels the wife to appeal
to the law for protection, she may charge him for the
necessary expenses of the proceeding as much as for
necessary food or raiment; and her solicitor may sue
for his propes charges. Shepherd v. Mackoul, 3
Camp. 326; Turner v. Rookes, 10 Ad. & Ell. 47. And
so it has been held that the husband's estate was liable
for preliminary expenses incidental to a suit for the
restitution of conjugal rights, instituted by the wife,
but before the suit came to a hearing the husband
died, and no decree therefore was ever pronounced.
Wilson v. Ford, L. R., 3 Exch. 63. In this last case
last cited, Channell, B., said: "I think that where a
suit was instituted, as it was here, for restitution of

State v. Clarke, 54 Mo. 17; Welch v. Hotchkiss, 39
Conn. 140; Cincinnati v. Buckingham, 10 Ohio, 257;
Dill. Mun. Corp., § 91. Some of these authorities are
flatly contradictory of others on this point, but the
difference in the conclusion reached in most of the
cases is largely attributable to a difference in the cir-
cumstances. The words "to control" and "to regu-
late," ex vi termini, imply to restrain, to check, to rule
and direct. And in my judgment the power to do
either of these implies the right to license, as a conven-
ient and proper means to that end. A license is
merely a permission to do what is unlawful at common
law, or is made so by some statute or ordinance, includ-
ing the one authorizing or requiring the license. By
this means the persons or occupations to be regulated
are located and identified, and brought within the ob-
servation of the municipal authorities, so that what-
ever regulations are made concerning them may be the
more easily and certainly enforced, including the giv-
ing of security for their observance even before the
license is issued. The authority of the National gov-
ernment, like that of a municipal corporation, is lim-
ited to the powers expressly granted in the Constitu-
tion, and such implied powers as may be necessary
and convenient to the due execution of the former.
And yet under the power "to regulate" commerce
Congress may and does provide for licensing the in-conjugal rights, and for alimony pendente lite, the ex-
strumentalities thereof, as vessels, pilots, engineers, penses in relation to it were necessary to her as wife,
Indian traders and the like. License Tax cases, 5
and such as she was justified in incurring.' And for
Wall. 470. In Ash v. People, 7 Cooley, 347,
was held
costs and expenses necessarily incurred by the wife in
that the council of Detroit, under the power to license filing a petition for judicial separation, although the
and regulate the sale of meats, might charge a fee of $5 petition was not proceeded with, it was held the bus-
for such license for, as I infer, the period of one year. band was liable. .Rice v. Shepherd, 12 C. B. (N. S.)
And the fee in this case should certainly be no more 332. In the case of Brown v. Ackroyd, 5 El. & B. 819,
thau in that. In Duckwall v. New Albany, 25 Ind. it was held that the proctor was not entitled to re-
283, it was held that the defendant, under the power cover his costs for instituting proceedings for a di-
"to regulate" ferries having a landing within its vorce a mensa et thoro, because it did not appear that
limits, could not charge a fee of $300 for a licence there- there was reasonable ground for the proceeding, that
for. Now $300 per annum for a licence to run a ferry being necessary to entitle the wife to pledge her hus-
on the Ohio river at New Albany, in 1865, was proba- band's credit for the costs of such proceeding; but it
bly a smaller compensation relatively than $20 a year was fully conceded and held by the court that if that
for keeping a wash house in ortland. There are other fact had appeared the husband would have been liable.
cases, as for instance Boston v. Schaffer, 9 Pick. 419, And in the case of Stocken v. Patrick, 29 L. T. Ex. (N.
and Burlington v. Putnam Ins. Co., 31 Iowa, 102, in S.) 507, where it appeared that the wife had good
which comparatively high fees have been sustained; ground for instituting a suit for separation, because of
but there the power to licence was backed by the fur- the cruelty of her husband, and her attorney having
ther provision that the municipal council in question brought suit for a divorce on the ground of adultery
might impose such terms or charge such sum for such and cruelty, which was compromised by an agreement
license as to it might seem just and reasonable, or ex- for a deed of separation, the solicitor was held entitled
pedient. And this is in effect, if not in form, a power to sue and recover of the husband for his costs as be-
to tax the licensed occupation. But here there is not tween attorney and client, including the costs as be-
even an express power to license, let alone tax. The
tween attorney and client in the divorce suit. And so
power to license is only implied from the power to in the recent case of Ottaway v. Hamilton, 3 C. P.
regulate, and can only be used for that purpose. All | Div. 393, on appeal, it was held that a solicitor, em-
things considered, it is apparent that the sum required ployed by the wife to take proceedings against her
to be paid the city for this license is far beyond any husband to obtain a divorce on the ground of cruelty
special expense that it may incur on account of the and adultery, was entitled to sue and recover of the
regulation to which it pertains; and it is quite clear husband for extra costs, that is, costs reasonably in-
from this fact, as well as the time and manner of its curred by him beyond the costs taxed and allowed as
payment, that this sum is in effect a tax, and was so between party and party. In that case Lord Justice
intended. This being so, the ordinance is so far void, Bramwell, in the course of his judgment, put the case
and the petitioner is restrained of his liberty without we are now considering. "Suppose," said he, "a hus-
due process of law, contrary to the Constitution of band were to die after the petition was filed, but be-
the United States. Dist. Ct. Dist. Oreg. The Laundry fore the decree could be pronounced against him,
License Case. Opinion by Deady, J.
would not the common-law liability of his estate for the
costs incurred by his wife continue in full force? I there-
fore think that the power of the wife to pledge her
husband's credit remains unimpaired." And in con-
clusion he said: "Subject to the question whether
they (the costs) have been justifiably incurred, the de-
fendant is bound to pay them, just as if he had re-
tained the plaintiff to act as his solicitor." But it is a
condition of the right to recover that it be made to ap-
pear affirmatively that the suit of the wife against the



-A widow cannot maintain an action against the ad-
ministrator of her deceased husband for the amount of

*Appearing in 62 Maryland Reports.

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husband was reasonably and justifiably instituted. Hooper, in re, 2 DeG., J. & S. 91; Brown v. Ackroyd, 5 L. &. B. 819. In this State it has never been otherwise than that the husband has been required to pay the reasonable counsel fees for services rendered the wife in suits for divorce. The amount allowed has always depended largely upon the circumstances of the case and the pecuniary resources of the parties. Ricketts v. Ricketts, 4 Gill, 105. The law upon this subject as settled in several of the American States is at variance with that of England, and according to the decisions of the courts of those States, this action could not be maintained. But the principle of the English decisions would seem to be more in consonance with our own practice, and we shall therefore follow them. McCurly v. Stockbridge. Opinion by Alvey, C. J.


PARTNERSHIP-SHARE IN PROFITS AND LOSSES.-By an agreement signed by W. and H. and Co. it was agreed that for the part taken by W. in the business then carried on by H. and Co., they should pay him a fixed salary of 180l. per annum, and in addition he was to receive one-eighth share of the net profits and bear one-eighth share of the losses, as shown by the books when balanced. W. agreed to leave with the business 1,500l., which was not to be withdrawn by him during the continuance of the agreement, and in the meantime interest thereon at 5 per cent per annum was to be paid to him. The agreement was to continue in force until the expiration of four mouths' notice in writing on either side, at the expiration of which the sum of 1,500l., with any arrears of interest, salary and profits, was to be paid to W., but H. and Co. were to be at liberty to pay 1,500l. to W. on giving one month's notice in writing. Held (affirming the decision of Pearson, J.), that no partnership inter se was created by the agreement, which was only an agreement by a servant to give his services at a fixed salary, with a share of profits in addition, and a similar liability for losses. Pooley v. Driver, 5 Ch. Div. 458; 22 Eng. Rep. 214, distinguished; Pawsey v. Armstrong, 18 Ch. Div. 698, questioned. Ct. of App. Walker v. Hirsch. Opinions by Baggallay, Cotton and Lindley, L. JJ. (51 L. T. Rep. [N. S.] 481). [27 Eng. Rep. 512; 32 Am. Rep. 267.-ED.]

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LICENSE ON LAND. The equity to arise from expenditure on land need not fail merely on the ground that the ininterest to be secured has been expressly indicated. P. erected a jetty on the foreshore of the harbor of W. under a revocable license from the Crown to use it for the purposes of a wharfinger; afterward, at the instance of the colonial government, he extended the jetty, and made other additions to it, and it was for some time used by the government for emigrants. Held, that the license had become irrevocable, and that the equitable right so acquired by P. was "an estate or interest in land" which could be the subject of compensation under local statutes. The law relating to cases of this kind may be taken as stated by Lord Kingsdown in the case of Ramsden v. Dyson, L. R., 1 H. of L. 129. The passage is at page 170: “If a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect

to such promise or expectation. This was the principle of the decision in Gregory v. Mighell, 18 Ves. 328. * * *If on the other hand a tenant being in possession of land, and knowing the nature and extent of his interest, lays out money upon it in the hope or expectation of an extended term or an allowance for expenditure, then, if such hope or expectation has not been created or encouraged by the landlord, the tenant has no claim which any court of law or equity can enforce. This was the principle of the decision in Pilling v. Armitage, 12 Ves. 78, and like the decision in Gregory v. Mighell, seems founded on plain rules of reason and justice." In such a case as Ramsden v. Dyson the evidence, according to Lord Kingdown's view, showed that the tenant expected a particular kind of lease, which Stuart, V. C., decreed to him, though it does not appear what form of relief Lord Kingsdown himself would have given. In such a case as the Duke of Beaufort v. Patrick, 17 Beav. 60, nothing but perpetual retention of the land would satisfy the equity raised in favor of those who spent their money on it, and it was secured to them at a valuation. In such a case as Dillwyn v. Llewelyn, 4 De G. F. & J. 517, nothing but a grant of the fee simple would satisfy the equity which the lord chancellor held to have been raised by the son's expenditure on his father's land. In such a case as the Unity Bank v. King, 25 Beav. 72, the master of the rolls, holding that the father did not intend to part with his land to his sons who built npon it, considered that their equity would be satisfied by recouping their expenditure to them. In fact the court must look at the circumstances in each case to decide in what way the equity can be satisfied. Jud. Com. Priv. Coun. Plimner v. Mayor of Wellington. Opinion per Curiam. [51 L. T. Rep. (N. S.) 475.]


NEGOTIABLE INSTRUMENT-COUPON BONDS-NEGOTIABILITY-SEAL.-A coupon bond of a private corporation, payable to bearer, and secured together with other bonds of the same character by a mortgage on the works of the company, is a negotiable instrument, and the mere addition of the seal of the corporation does not destroy its negotiability. When such bond is delivered by a person having possession of the same to another party who gives value for it and takes it without notice of any defect in the title, the title passes to the transferee irrespective of any defect in the title of the transferrer. It is held by the Supreme Court of the United States, and by the courts of our sister States, that the bond of a corporation is negotiable, and that the mere addition of the seal of the corporation which issued it does not destroy its negotiability. So where the name of the payee is left blank the holder may fill in his owu name, and bring suit on the instrument. Chapin v. Vermont & Mass. R. Co., 8 Gray, 575; White v. Same, 21 How. 575. The bond of a railroad company to secure payment of money, although under seal, when made payable to bearer or to order, is regarded as invested with all the attributes of negotiable paper. Zabriskie v. Cleveland, C. & C. R. Co., 23 id. 381; Winfield v. Hudson, 28 N. J. L. 255; Murray v. Lardner, 2 Wall. 120; Morris Canal Co. v. Lewis, 12 N. J. Eq. 323. So municipal bonds, made payable to bearer, are held to be negotiable. They are transferable by delivery, and the holder may sue in his own name. Taylor on Priv Corp., $326; Commissioners v. Clark, 94 U. S. 278; Cromwell v. County of Sac, 96 id. 51; Ottawa v. National Bank, 105 id. 342; Thompson v. Perrine, 106 id. 589. The early decisions of our own State do not recognize this rule to its full extent. The later cases however have been gradually approaching a conclusion in har

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