manifest from his opinion in the later case of Lenox v. Roberts, 2 Wheat. 373, in which the assignee of all the property of a banking corporation was allowed to maintain a bill in equity in his own name upon a promissory note which had not been formally indorsed to him, for the reason, that "as the act of incorporation had expired, no action could be maintained at law by the bank itself." The same doctrine had received a pointed application by this court in the case of Thompson v. Railroad Companies, 6 Wall. 134. That case was commenced in the State Court in Ohio, by the parties in interest, in their own name, although only beneficially entitled, in accordance with the Code of the State. It was removed into the Circuit Court, where the plaintiffs filed a bill in equity, because their title was equitable merely. A decree in their favor, on appeal, was reversed by this court, Mr. Justice Davis remarking, in the opinion, that "this case does not present a single element for equitable jurisdiction and relief," and added: "The absence of a plain and adequate remedy at law is the only test of equity jurisdiction, and it is manifest that a resort to a court of chancery was not necessary, in order to enable the railroad companies to collect their debt." That decision has been cited with approval in the subsequent cases of Walker v. Dreville, 12 Wall. 442; Van Norden v. Morton, 99 U. S. 380; and Hunt v. Hollingsworth, 100 id. 103. 476. The contract differed from one where property rights are affected, and which survives the death of the parties. See People v. National Trust Co., 82 N. Y. 283. Besides the claim of M. comes in collision with the policyholders in equity, and while he is found not to have a debt for damages, because of his relation to the company and the nature of his contract, and therefore no shadow of equity against the assets, the policyholders, resisting his claim, are protected by an equity not to be disregarded. Order affirmed. People v. Globe Mutual Life Insurance Co. Opinion by Finch, J. [Decided Jan. 23, 1883.] COSTS ALLOWANCE TO COUNSEL FOR POLICYHOLDERS IN PROCEEDINGS TO DISSOLVE INSURANCE COM PANY NOT PERMITTED.- An insurauce company was dissolved on the ground of its insolvency. In the proceedings for dissolution policyholders intervened. They were not necessary parties. Held, that such policyholders could not be granted an allowance out of the funds in the hands of the receiver for disbursements or counsel fees. Such an allowance cannot be defended on the principle, which permits allowances in cases where suits are brought or defended by trustees, or persons acting in respect to the right of another. The principle upon which counsel fees are granted iu such instances is that of a necessary disbursement, and it stands upon the same ground as any other necessary expense for the preservation of the fund. The trustee owes those whose interests are in his keeping no duty to expend his own money for their benefit, and whatever he does so expend in the reasonable and prudent care of the trust fund is properly allowed to him as an expense. Downing v. Marshall, 37 N. Y. 387; Irving v. DeHay, 9 Paige, In the present case, the complainant had a plain and adequate remedy at law by an action in the name of Allen, whose willingness to permit his name to be so used, in accordance with his agreement to that effect, is manifest, from the fact that in the original bill he was named as one of the complainants. There was therefore no error committed by the Circuit Court in dismissing the amended bill for want of jurisdic-553; Wetmore v. Parker, 52 N. Y. 450. Nor can the tion in equity. The decree is Accordingly affirmed. NEW YORK COURT OF APPEALS ABSTRACT. CORPORATION CONTRACT FOR PERSONAL SERVICE WITH-DETERMINED BY DISSOLUTION OF CORPORATION BY STATE INSURANCE COMPANY.-M. was employed by an insurance company, under a contract to act as its general agent for a specified term. During the term the company became insolvent, and was dissolved and a receiver of its assets appointed by the State authorities in accordance with the State law, and the company and its agents were enjoined from further action. Held, that M. was not entitled to claim against the fund in the hands of the receiver compensation for a breach of the contract of employment. There was no breach of contract. The State by the injunction order operating alike upon the company and its agents, paralyzed the action of both the contracting parties, so that neither could perform or put the other in the wrong. See Shaw v. Republic Ins. Co., 69 N. Y. 292; James v. Burchell, 82 id. 113; Jones v. Knowles, 30 Me. 402. Both parties contracted with reference to the law, and by that the corporation could live only by permission of the State. AttorneyGeneral v. Security Ins. Co., 78 N. Y. 115. The subject-matter of the contract was skilled personal services. Substituted service would not answer. tract of its own nature was dependent upon the continued life of both parties. With the natural death of one, or the corporate death of the other, the contract must end. The contract differed from that with the policyholders which was broken before the State interfered. See Yelland's case, L. R., 4 Eq. 350; Clarke's case, 7 Eq. 350: Logan's case, 9 Eq. 149; McClure's case, 5 Ch. App. 737; Gilbert's case, 41 L. J., N. S. (Eq.), The con allowance be made under the principle of cases, where one of several persons interested in a common fund, brings action in his own name for the benefit of others who may chose to come in and avail themselves of the litigation. See Trustees v. Greenough, 25 Alb. L. J. 492. Such proceedings are analagous to those for restoring property to the uses of a charity, which had been unjustly diverted (Attorney-General v. Brewers Co., 1 P. Wms. 376; Attorney-General v. Non.., 4 Beav. 297); creditors' suits, where a fund has been realized by the diligence of plaintiff (Stanton v. Hatfield, 1 Keen, 858; Thompson v. Cooper, 2 Colly, 87); or in bankruptcy cases. Worsell v. Harford, 8 Ves. 4. Nor can it be made on the ground that the expenses of the necessary parties to the distribution of a fund in the hands of the court are a lien and a charge upon the fund, not as costs taxable under the Code, but as necessary expenses or just allowances, prior to, and a necessary expense of distribution. Authorities recognize the right of the court to allow every substantial equity in distributing a fund (Eastbrook v. Kirk, 2 Johns. Ch. 317; Hotaling v. Marsh, 14 Abb. Pr. 164; Campbell v. Dunstan, 4 Johns. Ch. 433; Barnes v. Newcomb, 59 How. 240), but the policyholders here have no equitable claim for counsel fees for the protection of their own interests. The case AttorneyGeneral v. Continental Ins. Co., 80 N. Y. 572, is in harmony with the case at bar. Order affirmed. Matter of Attorney-General v. North America Life Insurance Co. Opinion by Finch, J. [Decided Jan. 16, 1883.] MUNICIPAL CORPORATION-LIABILITY FOR DANGEROUS OBSTRUCTION IN STREETS ERECTED BY PRIVATE PERSON.-The liability of municipal corporations for injuries sustained by persons lawfully using the public streets, in consequence of defects or obstructions therein, springs from the duty imposed upon them by law, to keep them in repair and in a safe conditiou for use. But this duty is relative and not absolute. When the defect or obstruction which has caused the injury, was created or placed there by the unlawful and unauthorized act of persons, not officers of the city, the duty of the city to repair the defect or remove the obstruction, only arises after actual notice of its existence, or after such a lapse of time as would justify the imputation of negligence, if the defect or obstruction had not been discovered, and what is such reasonable time, is a question for the jury. A pile of bricks was placed upon a city street, not only without permission of the city authorities, but in direct violation of the city ordinance. It was constructed in a dangerous manner in several particulars. It was thirteen to fifteen feet high, was commenced April 29th, and completed May 3d. On Monday, May 5th, plaintiff who was working in the street, was injured by the fall of this pile. In an action against the city for the injury, held, that while the city was not liable for a failure to remove this obstruction until after actual notice of its existence, or a lapse of time that would imply notice, notice to a policeman of the city was notice to the city, and the city was then bound to make observation or inquiry as to the structure, and was negligent for permitting it to exist, and the question of negligence was one of fact for the jury. See Hume v. Mayor of New York, 47 N. Y. 640; Reed v. Northfield, 13 Pick 94; Morristown v. Moyer, 57 Penn. 355; Donaldson v. City of Boston, 16 Gray, 508. Judgment reversed. Rehberg v. Mayor of New York. Opinion by Andrews, C. J. [Decided Jan. 23, 1883.] dise over their lines. It was stated by Swayne, J., to be such an act as forms "a portion of the immense mass of legislation which embraces everything within the territory of a State not surrendered to the general government, all which can be most advantageously exercised by the States themselves." See also, Chicago B. & Q. R. Co. v. Iowa, 94 U. S. 155; Munn v. Illinois, 94 id. 113; Sherlock v. Alling, 93 id. 99, 104. In all such cases respecting commerce between different States the State legislatures may act, and their statutes are valid so long as Congress does not see fit to legislate upon the subject, and supersede the statutes of the State by enactments of its own. U. S. Circ. Ct., E. D. Michigan, November 1882. Rae v. Grand Trunk Railway Co. Opinion by Brown, D. J. MARITIME LAW OF SERVICES. - COMPULSORY PILOTAGE-TENDER - A pilot who brought a vessel into the port of New York from sea became entitled under a State statute to pilot her to sea when she next left the port, by himself or one of his boat's company. The master of the vessel arranged with the pilot to meet him at a certain time and place, whence they were to go on board the vessel together. The pilot presented himself at the time and place appointed; the master did not appear, but went on board and to sea without a pilot. Held, that this was sufficent tender of his services on the part of the pilot, without his presenting himself on board the vessel, to charge the vessel with liability for the damages resulting from the non-performance of the obligation created by the statute. Steamship Co. v. Joliffe, 2 Wall. 450; Ex parte Mc Niel, 13 id. 242. U. S. Dist. Ct., E. D. New York, Dec. 7, 1882. The Francisco UNITED STATES CIRCUIT AND DISTRICT Garguilo. Opinion by Benedict, D. J. COURT ABSTRACT.* CARRIER-NEGLIGENCE-DUTY TO STOP TRAIN-DAMAGES. (1) It is the duty of those in charge of a railway train, on approaching a station where such trains stop, upon being flagged so to do, to be on the alert and lookout for such signal, and stop when it is given. (2) In the absence of gross negligence, recklessness, willfulness, malice, insult or inhumanity, only actual damages can be allowed. No recovery can be allowed for inconvenience or even physical hardship when the same are voluntarily undertaken. The general rule is "that pain of mind is only the subject of damages when connected with bodily injury; it must be so connected in order to include it in the estimate, unless the injury is accompanied by circumstances of malice, insult, or inhumanity." Francis v. St. Louis Transf. Co., 7 Mo. App. 7; Tugg v. St. Louis, etc., R. Co., 6 Am. & Eng. R. cases, 349; Nelson v. Atlantic, etc. R. Co., 68 Mo. 593; Milwaukee, etc., R. Co. v. Armstrong, 91 U. S. 489; Chicago, etc., R. Co. v. Scurr, 59 Miss. 456. U. S. Circ. Ct., S. D. Mississippi, Nov. 29, 1882. Morse v. Duncan. Opinion by Hill, D. J. CONSTITUTIONAL LAW STATE STATUTE REGULATING OPERATION OF RAILROADS. A State statute requiring railroads to draw the cars of other corporations as well as their own, at reasonable times and for a reasonable compensation, to be agreed upon by the parties or fixed by the railroad commissioner, does not conflict with the constitutional provision that Congress shall have power to regulate commerce between the States. In Railroad Co. v. Fuller, 17 Wall. 560, it was held that a State statute requiring railroads to fix their rates for transportation of passengers and freight, and to cause a printed copy of such rates to be posted up at all their stations along the line, was a mere police regulation, and did not conflict with an act of Congress authorizing railroads to receive compensation for the transportation of passengers and merchan* Appearing in 14 Federal Reports. MARITIME LAW - EVIDENCE INEVITABLE ACCIDENT BURDEN OF PROOF. Where in case of a collision at sea at night, the defense of inevitable accident is raised, and the main issue is whether the weather was such that the lights of one vessel could be seen in time by the other to enable her by due nautical skill to keep out of the way, held, that the burden of proof is upon libellants to show not only that their lights were burning, but also that the weather was such that they could be seen a sufficient distance to avoid the collision. See The Morning Light, 2 Wall. 550; The Mabey, 14 id. 204; Butterfield v. Boyd, 4 Blatch. 356; The Marphesia, L. R., 4 P. C. 212; The Benmore, L. R.. 4 Adm. 132; The Abraham, 2 Asp. Mar. Cas., N. S., 34; The Dayton, 18 Blatch. 411. U. S. Dist. Ct., S. D. New York, Dec. 8, 1882. The Florence P. Hall. Opinion by Brown, D. J. UNITED STATES SUPREME COURT ABSTRACT. CORPORATION-RAILROAD CO.-ULTRA VIRES-DISPOSITION OF FRANCHISES.-- The South Georgia & Florida Railroad Co., having power, by its charter, to construct a railroad from Albany to Thomasville, Georgia, and from Thomasville to the Florida line, and also power to purchase and sell all kinds of property of every nature and quality, and to incorporate its stock with that of any other company, contracted with the Albany & Gulf Railroad Co. to construct its road from Thomasville to Albany, and to sell and deliver it to the latter company in sections as completed, together with the franchise of using the same, and to incorporate its stock created for building said road with that of the Albany & Gulf Railroad Co. Held, that this contract was not ultra vires. The Albany & Gulf Railroad Co. had the same general power, except that of incorpo rating its stock with that of other companies, and had the right under its charter also to construct a railroad from Thomasville to Georgia. Held, that it was not acting ultra vires to make the purchase of said road and franchises as above stated, and to pay for the same by issuing its own stock therefor; which was delivered to and accepted by the contractors in lieu of the stock of the South Georgia & Florida Railroad Co., which latter stock they had subscribed for and agreed to take in payment for the work of construction. When a railroad company has the right of constructing a particular line of railroad, with general power to purchase all kinds of property of whatever nature or kind it may purchase from another company a road constructed upon that line, if the latter company had power to sell and dispose of the same. As a general rule a corporation cannot dispose of its franchises, nor a railroad company its road, without legislative authority; but in this case it was held that the legislative authority existed. Prior to the purchase of the railroad the Albany & Gulf Railroad Co. had executed a trust deed by way of mortgage upon all its railroad and property acquired or to be acquired. Held, that inasmuch as the road purchased was within its chartered limits, and might have been constructed if it had not been purchased, the mortgage extended to and covered the said road, when purchased, the same as it would have done had the company itself constructed it. The contractors who built the road and accepted in payment therefor the stock of the Atlantic & Gulf Railroad Co. in lieu of that of the South Georgia & Florida Railroad Co., and the assignees and purchasers of said stock, after the transaction between the two companies has been carried into effect, and the road has been possessed and operated by the Atlantic & Gulf Railroad Co. for several years, are estopped from claiming the right to be regarded as stockholders of the South Georgia & Florida Railroad Co., or as preferred creditors as against the railroad itself. Having voluntarily accepted the position of stockholders of the purchasing company, they cannot question the validity of the transaction adversely to it, or to the mortgage giving by it, covering the road in question. The stock thus issued and accepted was preferred stock, on which interest was payable. Held, that the holders thereof, and their assigns having accepted it, and received interest on it for several years, are estopped from questioning the power of the company to issue such preferred stock. The South Georgia & Florida Railroad Co. having received all it stipulated for, and having incorporated its stock with that of the Albany & Gulf Railroad Co. by accepting the stock of that company in lieu of issuing its own stock, and being in fact amalgamated therewith so far as the road in question is concerned, has no ground to complain that the terms of the contract have not been fulfilled by the Atlantic & Gulf Railroad Co. It has lost nothing. It has not incurred any liability which is not protected by first liens on the road, the priority of which is conceded by all parties. Decree of U. S. Circ. Ct., S. D. Georgia affirmed. Branch v. Jesup. Opinion by Bradley, J. [Decided Jan. 15, 1883.1 REMOVAL OF CAUSE WHEN THIS COURT WILL NOT REVIEW ORDER OF CIRCUIT COURT.-In a suit for foreclosure, commenced in a State Court, and removed to the Circuit Court of the United States, a motion to remand the cause was made and overruled. Subsequently a final decree of sale was passed. Upon appeal merely from the order confirming the sale, the final decree not disclosing affirmatively a want of jurisdiction, this court will not examine the record, prior to such final decree, to see whether the petition for removal was filed in proper time, or whether it makes a case of Federal jurisdiction by reason of the presence in the suit of a controversy between citizens of different States; but assuming that the final decree was within the power of the Circuit Court to render, will only examine the decree to ascertain whether the sale was had in conformity with its provisions. See Williams v. Nottawa, 104 U. S. 209; Removal Cases, 100 id. 457; Babbitt v. Clark, 103 id. 606; Railroad Co. v. Wiswall, 23 Wall. 507; Insurance Co. v. Comstock, 16 id. 258; Railroad Co. v. Koontz, 104 U. S. 15. Order of U. S. Circ. Ct., S. D. Illinois affirmed. Turner v. Farmers' Loan & Trust Co. Opinion by Harlan, J. [Decided Jan. 15, 1883.] PRACTICE WHAT DEMURRER ADMITS.-(1) The only questions open for examination on a bill of review for error of law APPEAL- WHAT OPEN FOR REVIEW appearing on the face of the record are such as arise on the pleadings, proceedings, and decree, without reference to the evidence in the cause. Whiting v. Bank of the United States, 13 Pet. 6; Putnam v. Day, 22 Wall. 66; Buffington v. Harvey, 95 U. S. 99; Thompson v. Maxwell, id. 397. (2) A demurrer admits only such facts as are properly pleaded. As questions of fact are not open for re-examination on a bill of review for errors in law, the truth of any fact averred in a bill of review inconsistent with the decree is not admitted by a demurrer, because no error can be assigned on such a fact, and it is therefore not properly pleaded. Decree of U. S. Circ. Ct., N. D. Illinois, affirmed. Shelton v. Van Kleeck. Opinion by Waite, C. J. [Decided Jan. 8, 1883.] MINNESOTA SUPREME COURT ABSTRACT. DECEMBER, 1882. FIXTURES-ONE ERECTING SHELVING AND COUNTERS UNDER LICENSE MAY REMOVE-CONVERSION.- Plaintiff under a license from defendant, the owner of a building,annexed to such building shelving and counters. Held, that plaintiff had the right to remove this property, and defendant having upon request refused him permission to enter the building and remove it, that an action would lie for damages for wrongful couversion notwithstanding the fact that the property had not been dissevered from the realty. The general rule which obtains where the common-law distinctions between different forms of action are preserved, undoubtedly is that replevin or trover will not lie for any thing attached to the realty. This proceeds upon the theory that it ceases to be a chattel by being affixed to the land, and becomes real property, but reducible again to a chattel state by separation from the realty, and that replevin or trover will only lie for a chattel. It may well be doubted whether the more sensible as well as logical rule would not have been that whenever the right of removal exists, the fixture retains its chattel nature even during annexation, and that therefore trover or replevin would lie, even before severance from the realty, in favor of him having the right of removal against the owner of the realty, who upon demand, refuses him permission to enter and reBut whatever may have been the propriety in common-law forms of action of this rule, it can have no application under a system of practice, in which all distinctions in the forms of action have been abolished; and even under the common-law practice, the rule referred to was not applicable to articles in their nature furniture merely, which though fastened to the walls for safety or convenience, did not lose their character as personal chattels, nor to houses or other structures built on the land of another with his consent, and under an agreement, express or implied, that they should continue the personal property of the party erecting them, notwithstanding that they had not been severed from the land when the action was move. brought. Warren v. Kinney, 25 Minn. 173; Smith v. Benson, 1 Hill, 176; Tift v. Horton, 53 N. Y. 377; Hill v. Sewald, 53 Penu. St. 271; Osgood v. Howard, 6 Greenl. 452; Davis v. Taylor, 41 Ill. 405; Adams v. Goddard, 48 Me. 212; Gutherie v. Jones, 108 Mass. 191; Tierney v. Watkins, 13 Mo. 201; Vilas v. Mason, 25 Wis. 312. Stout v. Stoppel. Opinion by Mitchell, J. INFANCY DISAFFIRMANCE OF DEED BY INFANT.To give effect to the disaffirmance of an infant's deed of land, it is not necessary that his grantee should be placed in statu quo by the restoration of the consideration or otherwise. Chandler v. Simon, 97 Mass. 514; Tucker v. Moreland, 10 Pet. 73. Where the infant, upon reaching majority, applies to a court of equity to have his deed avoided, the rule may be different. But the question then presented differs from that raised by a disaffirmance which has actually taken place. So too upon disaffirming, the former infant may in some circumstances be liable to restore the consideration to his grantee, or otherwise to place him in statu quo; but it does not follow that he must do either of these things as a condition precedent of disaffirmance. The rule with reference to the disaffirmance by an infant or former infant of a transfer of personal property is quite different from that as to disaffirmance of an infant's conveyance of real estate. Dawson v. Helmes. Opinion by Berry, J. FOR RAILROAD-FAILURE TO FENCE- LIABILITY INJURY TO ANIMAL-PROXIMATE CAUSE.- The Minnesota statute imposes upon all railroad companies the duty to build good and sufficient fences on each side of their roads, and provides that "all railroad companies shall be liable for domestic animals killed or injured by the negligence of such companies, and a failure to build and maintain fences as above provided shall be deemed an act of negligence on the part of the companies." Plaintiff's mule escaped and ran upon defendant's unfenced railroad track, and while running and jumping along the railroad track, it got its foot into a small hole in the soil between the ties, and in some unexplained way broke its leg. The hole was a small one, "about the size of a mule's foot," and from two to four inches in size "each way." There was no train along the track at the time of the injury. Held, that the injury was not one reasonably to be apprehended, and did not follow as a natural or ordinary sequence of the absence of a fence, and that the railroad company were not liable for the killing of the animal. See Holden v. Railroad Co., 30 Vt. 297. The cases Salisbury v. Herchenroder, 106 Mass.99; Seimers v. Eisem, 54 Cal. 418; Powell v. Salisbury, 2 Younge & J. 391, distinguished. Nelson v. Chicago, Milwau kee & St. Paul Railway Co. Opinion by Mitchell, J. NEBRASKA SUPREME COURT ABSTRACT. DEDICATION BY SELLING LAND IN REFERENCE TO PLAT OF STREET - ADVERSE POSSESSION. The owner of land made a plat of the same, wherein lots and streets were marked and sold lots by descriptions having reference to the streets, but not including such streets. Held, that there was a dedication of the streets to the public and a sale under execution against the owner of one of the streets gave no title to the purchaser. No one but the owner of the fee can dedicate land to the use of the public; but where he has done an act with the intention of influencing the conduct of another, as the filing of a plat of a street and selling lots fronting thereon, and such other person has thereby been induced to purchase such lots, or some of them, the original owner will be estopped to deny the dedication. In Livermore v. City of Maquoketa, 35 Iowa, 358, one L., being the owner of a tract of land, laid the same off as a town plat, designating a block not divided, as "Livermore square." There was evidence tending to show that after the filing of the plat L. had treated the square as belonging to the public. It was held that the dedication was suffi ciently established. And in Giles v. Ortman, 11 Kan. 59, where it appeared that the owners of land, in preparing the plat of a town for acknowledgment and record intended to lay out a strip of ground as an alley and thus dedicate the same to the use of the public, and took certain steps to carry the intention into effect, it was held that but slight evideuce would sustain a finding that such dedication was in fact made. So in this case, the street was marked on the plat as though it was open, and lots were sold upon such street, which probably could not have been done but for the fact that it was regarded as the public thoroughfare. Held, also, that the owner after such dedication could not acquire title by adverse possession as his possession thereafter would not be adverse. Burhans v. Van Zandt, 7 Barb. 91; Currier v. Earl, 1 Shep. 216; Johnston v. Farlow, 13 lud. Law, 84. Gregory v. City of Lincoln. Opinion by Maxwell, J. [Decided Dec. 7, 1882.] PARTNERSHIP · REAL ESTATE OF FIRM WITH TITLE IN INDIVIDUAL MEMBER NOT LIABLE FOR HIS DEBTS. -Judgments against a member of a firm upon individual debts are not a lien against real property purchased with partnership funds, the title to which is in him as against partnership debts. The lien of a judgment is not an interest in the real estate of the debtor. The creditor has neither a jus in re nor a jus in rem as regards the real estate. The lien merely confers the right to levy thereon to the exclusion of other adverse interests subsequent to the judgment. Goveneyer v. Insurance Co., 62 Penn. St. 342; Conrad v. Insurance Co., 1 Pet. 386; Kemper v. Adams, 5 McLean, 507; Schaffer v. Cadwelleder, 36 Penn. St. 126; Thulluson v. Smith, 2 Wheat. 396; Metz v. State Bank, 7 Neb. 165; Galway v. Malchow, id. 285, and it attaches only to the interest of a debtor in the lands. Uhl v. May, 5 Neb. 157; Mansfield v. Gregory, 8 Neb. 432, S. C. 11 id. 297. In the last case it is said such lien does not exceed the actual interest of the judgment debtor in the land, and is subject to every equity therein existing against the debtor at the time of its rendition. If property is bought by a partner in the firm, acting for the firm, the property belongs to the partnership as soon as the sale is complete, because the purchaser is the firm; and the fact that the title to real estate thus purchased is taken in the name of one of the partners, will not deprive it of the character of partnership property. Where a partnership is insolvent, the rule is to give to the creditors all the effects of the partnership, if necessary, for the payment of the debts, leaving only the surplus, if any, to private creditors, and to give to private creditors the private assets of the several partners, applying only the surplus to payment of the partnership debts. Ex parte Crowder, 2 Vern. 706; Ex parte Cook, 2 P. Wms. 500; Parsons, Part. 347, 348. The joint creditors have the primary claim upon the joint fund in case of insolvency, and the partnership debts are to be paid before any portion of such funds can be applied to other purposes. Murrill v. Neill, 8 How. U. S. 414; Converse v. McKee, 14 Tex. 20: 3 Kent, Comm. 65. The basis of the rule is that the credit being given to the firm, the assets of such firm will be applied where the credit was given, and not be diverted to the payment of a debt incurred upon the sole responsibility of one member of the firm. 3 Kent Comm. 65. in Murrill Neill, 8 How. 414, the Supreme Court of the United States say: "The rule in equity governing the administration of insolvent partnerships is one of familiar acceptation and practice; it is one which V. will be found to have been in practice in this country from the beginning of our judicial history, and to have been generally, if not universally, received. This rule, with one or two eccentric variations in the English practice, which may be noted hereafter, is believed to be identical with that prevailing in England, and is this: That partnership creditors shall, in the first instance, be satisfied from the partnership estate, and separate or private creditors of the individual partners from the separate and private estate of the creditors with whom they have made private and individual contracts; and that the private and individual property of the partners shall not be applied in extinguishment of partnership debts, until the separate and individual creditors of the respective partners shall be paid. The reason and foundation of this rule, or its equity and fairness, the court is not called on to justify. Were those less obvious than they are, it were enough to show the early adoption and general CONSTITUTIONAL LAW — REPEALS BY IMPLICATION. That clause of the Constitution (sec. 13, art. 4.) which provides "that no act hereafter passed shall embrace more than one subject," etc., and "that no law shall be revised and amended by reference to its title only, but the law revised or section amended shall be inserted at length in the new act," was not intended to control the doctrine of repeals by implication. Geisen v. Heiderich. Opinion by Mulkey, J. EQUITABLE ACTION INCONVENIENT BUILDING IN HIGHWAY.- A bill in chancery by property owners, seeking to have removed a building in a highway appurtenant and affording access to their property, and to enjoin the closing up of the highway, there being nothing about the building deleterious to the health of the complainants, or such as to render the use of their habitations uncomfortable or dangerous, it being simply inconvenient to have it occupy the street, shows no case for equitable relief. See Dunning v. Aurora, 40 111. 481; Irwin v. Dixon, 9 How. 6; Lining v. Geddes, 1 McCord's Ch. 304; Robeson v. Pitenger, 1 Greene's Ch. 57. Clark v. Donaldson. Opinion by Scholfield, J. MORTGAGE-ASSUMPTION OF MORTGAGE BY GRANTEE — WHAT ESSENTIAL.-A grantee of a mortgagor, who merely purchases the equity of redemption, is not liable to the mortgagee for any part of the mortgage debt not satisfied by sale on foreclosure; but if he purchases the property of the mortgagor, and as a part of the contract of purchase assumes and agrees to pay the mortgage indebtedness, he becomes personally prevalence of this rule to stay the hand of innovations at this day; at least under any motive less strong than the most urgent propriety." In New York this rule has been adopted. It is held that "the partnership property of a firm shall all be applied to the partnership debts, to the exclusion of the individual members of the firm; and that creditors of the latter are to be first paid out of the separate effects of their debtor, before the partnership creditors can claim any thing therefrom." Jackson v. Cornell, 1 Sandf. Ch. 60; Murray v. Murray, 5 Johns. Ch. 60; Wilder v. Keeler, 3 Paige, 164; Payne v. Mathews, 6 id. 19; Hutchinson v. Smith, 7 id. 26. In McCulloh v. Dashiell, 1 Harris & G. 96, it was held that individual creditors of a part-liable to the mortgagee, and an appropriate action may ner were entitled to a preference over the partnership creditors in the distributing of the separate estate of the debtor. See also Woddrop v. Ward, 3 Des. Eq 203; Jarvis v. Brooks, 3 Foster, 136. In Ohio it is held that the rule in equity in the distribution of the joint and separate assets of insolvent debtors— partners – is that the individual assets of a partner be first applied to the debts of his individual creditors, and the partnership assets first to the partnership debts. But if there is no joint estate and no living solvent partner, the rule does not apply. Rogers v. Meranda, 7 Ohio St. 179; Budge v. McCullough, 27 Ala. 661; Daniell v. Townsend, 21 Ga. 155. Bowen v. Billings. Opinion by Maxwell, J. [Decided Dec. 7, 1882.] STATUTE- -REPEAL BY IMPLICATION NOT FAVORED. -The law does not favor a repeal by implication, but be maintained against him to enforce his liability under the contract. Where a party receives a warranty deed, containing a clause that it is made subject to a prior mortgage given upon the land by the grantor to a third person, this of itself will create no personal liability on the part of the grantee to pay the outstanding incumbrance. A deed, for the expressed consideration of $15,000, conveyed certain lots, and recited that it was made subject to three mortgages on the property, given by the grantor, which were described, amounting to $10,191, for which conveyance, and another for a house and lot, the grantee therein conveyed to the grantor 560 acres of other land, estimated at the value of some $5,000. The deed from the mortgagor provided that the grantee should pay all taxes for the year of the sale, then a lien on the property, but omitted to make provision for the payment of the mortgage indebtedness, and the proof was that the deed of the mortgagor was drawn as the parties had agreed and directed it to be made. It was held that the purchaser did not thereby assume and bind himself to pay the mortgages, nor did the fact he expected to pay them in time, and even paid some interest on them, operate to fix his personal liability to the mortgagees. Rap v. Stoner. Opinion by Craig, J. RECENT ENGLISH DECISIONS. CONFLICT OF LAW -SUITS PENDING IN TRIBUNALS OF DIFFERENT COUNTRIES STAY OF PROCEEDINGS. Where two or more actions are pending between the same parties in respect of the same subject-matter, the court has jurisdiction to stay proceedings in all but one of them on the ground that the concurrent litigation is vexatious, even where one of the actions is in a foreign court, and judgment has not been obtained in any of the actions. But where one action is in a foreign court, the party applying for a stay of proceedings must make out a special case for relief, whereas where all the litigation is in England |