by the facts, of which the party could not avail himself as a defense. We are unable to see any sound distinction between this case and any other where a Court sitting for the trial of issues of fact has excluded evidence which, if admitted, and full effect given to its apparent force, would determine the issue in favor of one of the parties. We think it is clear that in such a case it is not the province of a Court of Equity to thrust in its injunction and prevent a successful party from going on with the case, until the decision of exclusion shall be changed and the evidence received. Order reversed and judgment or dered for defendants on the demur rer. a conveyance of certain premises situated in the city of New York, known as numbers one to forty Abbatoir Place, upon trust to receive the rents, issues, and profits thereof, and after paying all taxes, assessments, and other charges upon said premises, to apply the rest and residue of the said rents, issues, and profits to the sole and separate use of the defendant, Mrs. Reynolds, during her natural life, and after her decease, upon trust, to convey, &c., &c. ; Mrs. Reynolds died in 1876, and during the pendency of the action, and the defendant, Nicoll, is her executor. In March or April, 1873, Nicoll did, by virtue of his power and authority as trustee, employ the plaintiff to Opinion by Davis, P. J.; Daniels, make certain necessary repairs on the J., concurring. buildings on the trust-estate. Nicoll subsequently promised and agreed to pay the plaintiff for said repairs out of the rents, issues, and profits arising under said trust. At the time of the had no funds of the trust-estate with employment of the plaintiff, Nicoll which to make said repairs; and the plaintiff made said repairs relying on said authority and said trust-estate. Since the debt to the plaintiff became due, Nicoll has received out of the rents, &c., of the trust-estate, sufficient money to pay all charges thereon, including the sum due the plaintiff. A judgment was entered against the defendant as trustee, and he was ordered to pay the same out of the rents, issues, and profits of the trust-estate, which have accrued since May 1, 1873, which were payable to Mrs. Reynolds under and by virtue of the trust deed aforesaid. E. More, for applt. Held, That the facts found are not sufficient to create a charge upon the ly to the fund for his compensa- trust-estate. Noyes v. Blakeman, 3 Sand., 531; It is, no doubt, the duty of the trustee to pay all charges on the estate. But the demand of the plaintiff is not such a charge. The grantor of the trust did not intend to authorize the trustee to create charges on the estate indefinitely, and then pay them out of the trust fund. The word "charges" means liens or incumbrances which are paramount to the trust. Nor can the di rection to pay all charges on the estate be construed as an authority to the trustee to make contracts which would be binding on the estate. No cause of action against the defendant Nicoll, as executor of Mrs. Reynolds, has been shown. Judgment reversed, the order of The reliance of the plaintiff was simply a mistaken one on his part. The law does not justify it. The necessity of the repairs relieves the trustee from an imputation that, in causing them to be made, he committed a breach of trust, but it gave no remedy to the plaintiff against the trust estate. Nor did the promise of the trustee to pay the plaintiff out of the trust fund absolve him from personal liability or create a lien on said fund. Indeed there is no way by which a trustee can, by his own act, substitute a lien on the trust-estate for expenses incurred by him in its management or preservation, instead of his per-reference vacated, and a new trial sonal liability for such expenses. He granted, with costs to abide the may, perhaps, cause expenditures to event. be made in fulfilment of his duty as trustee, and if he has no funds in hand to defray the same, he may make a special agreement that such expenditures shall be made on the credit of the fund, and that he shall be exempt from personal liability, except for the application of the fund to the payment of such expenditures whensoever he can do so without committing a breach of trust. And such agreement may be enforceable in a Court of Equity in a proper case. But the referee has not found, nor does the evidence show, that such an agreement was made. The trustee did not ask to be relieved from personal liability. The plaintiff did not agree to look sole Opinion by Gilbert, J.; Dykman, J., concurs. SURROGATES. APPEAL. PAR TIES. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Benjamin Cox, ex'r, &c., applt., v. William H. Schermerhorn, ex'r, &c. Decided December, 1877. Where an appeal has been taken from the decree of a Surrogate by one of the parties to the proceeding, any party affected by or interested in the decree may apply to be made a respondent. Appeal from an order making Rebecca F. Willets a party to an appeal from a decree of the Surrogate of Queens County. The appeal from the decree was from that part thereof which adjudged that appellant and his co-executor, Schermerhorn, should pay to the estate $6,000 which had been lost, and asked that Schermerhorn might be made to pay it in the first instance. W. H. Onderdonk, for applt. B. W. Donning and J. J. Armstrong, for respt. Held, That, when an appeal has been taken by one party to the proceeding before a surrogate, other parties to such proceedings, who are not made respondents, if they desire a review of the proceedings, may elect whether they will bring cross appeals or apply to be made respondents in the appeal already brought. The latter is the most convenient remedy, for the 51st Rule of this Court provides, that the respondent, in his answer to the petition of appeal in a case of this kind, may also specify any items in the account as to which he supposes the decree is erroneous as against him and in favor of the appellant, and that upon the hearing of such appeal the decree may be modified as to any such items in the same manner as if a cross appeal had been brought by such respondent. The appellant having appealed, there was no necessity for a cross-appeal by Mrs. Willetts. If the appellant desires to enforce against her the statutory limitation of the time of appealing, all he has to do is to abandon his appeal. On the other hand, if he prefers to prosecute his appeal, he ought not to be allowed to gain any advantage over Mrs. Willetts by omitting to make her a party respondent therein. Furthermore, the respondent Scher merhorn, may, as has been shown, obtain affirmative relief on the hearing of this appeal, and such relief may be prejudicial to the interests of Mrs. Willetts as declared in the decree of the surrogate. True, no modification of the decree would bind her unless she was a party to the appeal. Hence, that fact would necessarily limit the power of the Court to grant relief to the actual respondent, or frustrate any relief which might be granted adversely to Mrs. Willetts. This illustrates the propriety of the rule that all persons should be made respondents who are interested in sustaining the decree. 4 Wait's Pr., 350. The practice pursued by Mrs. Willetts to remedy the omission to designate her as respondent is correct. 35 Barb., 591; 7 Paige, 48. Order affirmed with costs. Opinion by Gilbert, J.; Dykman, J., concurs; Barnard, P. J., not sitting. ACTIONS FOR INJURIES. U. S. SUPREME COURT. The Mutual Life Ins. Co., plff. in error, v. Samuel D. Brame. (Oct., 1877.) No civil action lies for an injury resulting in the death of the injured party. A life insurance company cannot maintain an action for damages against the murderer of a person insured in such company. Error to the Circuit Court of the United States for the District of Louisiana. The plaintiff, a life insurance company, brought suit in the United States Circuit Court against the defendant to recover the sum of $7,000, on the following allegations: The plaintiff had insured the life of one Craven McLemore, a citizen of Louisiana, for the sum of $2,000 in favor of John P. Kennedy, for the sum of $2,500 in favor of Sanders, Garner & Co. (which was subsequently assigned to John H. Garner, Sr.), and for $2,500 in favor of John H. Garner & Co. flicted by him was upon McLemore, against his personal rights; that it happened to injure the plaintiff was an incidental circumstance, a remote and indirect result, not necessarily or legitimately resulting from the act of killing. See 39 Me., 253; 48 N. Y., 430; 7 Blackf., 234; 31 Me., 435; 11 Metc., 290. By the common law actions for in and cannot be revived or maintained by the executor or by the heir. By the Act of Parliament of August 21, 1846 (9 and 10 Victoria), an action in certain cases is given to the representatives of the deceased. This principle, in various forms and with various limitations, has been incorporated into the statutes of many of our States, and among others into that of Louisiana. It is there given in favor of the minor children and widow of the deceased, and in default of these relatives, in favor of the surviving father and mother. Acts That on the 24th day of October, 1875, while said policies were injuries to the person abate by death, force, in the town of Delhi, in Louisiana, the defendant, Brame, did wilfully shoot the said Craven McLemore and inflict upon him a mortal wound, from the effects of which he died on the 26th day of October, 1875. That said shooting was an illegal and tortious act on the part of said Brame, and caused damage to the plaintiff in the sum of $7,000, being the amount of said policies on the life of said McLemore, which plaintiff acknowledges to be due, and a part of which it alleges has been paid. Defendant filed an exception (de- of La., 1855, pr. 223, p. 270. The murrer) to plaintiff's petition. case of a creditor, much less a remote claimant like the plaintiff, is not within the statute. The Circuit Court gave judgment for the defendant, and to this judgment the present writ of error is brought. Held, That by the common law no civil action lies for an injury which results in death. Hilliard on Torts, 87, § 10; 1 Camp., 493; 25 Conn., 265; 25 Cal., 235; 23 Ind., 133; 16 Mich., 180; 15 Ga., 349; 37 Ill., 333; 2 Keyes, 300; 6 La. Ann., 496; 11 Id., 21. The relation between the insurance company and McLemore, the deceased, was created by contract between them. But Brame was no party to a contract. The injury in Judgment affirined. CONTRIBUTORY NEGLI GENCE. SUPREME COURT OF PENNSYLVANIA. William Mallory et al. v. Benja min Griffey. Decided November 5, 1877. The onus of proving contributory negligence is upon the defendant; and it is error to charge that plaintiff should have shown that his own negligence did not contribute to the injury. The plaintiff was driving a horse almost total loss of the use of her right arm. On the trial the Court charged: "That if the plaintiffs have not shown affirmatively that their own negligence did not contribute in any and buggy along the State road, socalled, it being an east and west road, passing through Conneaut Township, in Erie County, and also Cherry Hill of said county, where plaintiff resided, thence westwardly to the Ohio State line, passing defendant's degree to the injury they cannot reresidence, and while said plaintiff | cover." was driving her horse along said road from her residence, and while passing said defendant's house, her horse be came suddenly frightened at stone lying on the south side of the road and within the public highway, and stopped, turned to the right and commenced backing. The horse could not turn to the right, for the defend-in which it would be incumbent on ant had placed large quantities of timber on the right or north side of said road, which came near or almost to the travelled track of the road. As the horse started to back she held the lines in her left hand; she touched the horse with the whip, which she held in the other hand; the horse being much frightened became unmanageable, and suddenly wheeled to the left and turned around in a short circle, nearly tipping the buggy over and throwing her violently to the ground, she striking on her head and shoulders. Held, Error. This instruction cast upon the plaintiffs the onus of disproving negligence, and was clearly wrong. Negligence of a plaintiff, contributing to the injury complained of, is matter of defense, and, ordinarily, the burthen of proving it is on the defendant. There may be cases the plaintiff to prove that he exercised ordinary care, but this is not one of them. Judgment reversed, and venire facias de novo awarded. Opinion by Sterrett, J. MARRIAGE. COURT OF APPEALS OF KENTUCKY. A marriage procured by fraud is voidable only The horse which the plaintiff was driving was a family horse which The right to take advantage of the discovery they had for some years, and that Mrs. Mallory and her daughters had been accustomed to drive, and it was a kind and gentle horse, and that Mrs. Mallory was a good driver, and had been accustomed to driving horses all her life. Mrs. Mallory was greatly injured by her fall to the ground, more than was at first supposed, and has suffered much pain and general health impaired, with Vol. 5-No. 22.* of the fraud is personal and does not pass to the executors of the defrauded party. The appellee, under the name of Mary Albright, was married to Philip Tomppert, Sr., April 2, 1872. Tomppert died October 29, 1873, leaving no issue of the marriage, having first made and published his last will and testament, devising all his estate to four children of a former marriage. This suit was brought by the appellee |