for the reason that when given there was no existing legal right or interest to be released (Fitch v. Fitch, 8 Pick. 480; Trull v. Eastman, 3 Metc. 121); still having obtained more than his share by it, he is estopped by his covenant in it from claiming any thing more under the will. Quarles v. Quarles, 4 Mass. 680; Kenney v. Tucker, 8 id. 143. Low v. Low. Opinion by Libbey, J.

[Decided Jan. 6, 1885.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

NEGLIGENCE-CONTRIBUTORY NEGLIGENCE- RAILROAD CROSSINGS-NONSUIT.-A., while attempting to cross defendants' tracks, was struck by an engine and injured. He testified that when he came to the crossing he saw a train passing on one of the tracks and after looking up and down the other tracks and seeing no other trains, he went up on the road-bed, which was raised some distance above the level of the street, and stood between two tracks waiting for the train to pass; while in this position an engine came along one of the tracks and struck him, causing the injuries complained of. According to plaintiff's testimony the engine which struck him did not whistle or ring the bell. It semed that it was possible for him to have seen along the track a distance of half a mile in the direction from which the engine came. On this state of facts the court below having entered a nonsuit. Held, that a nonsuit was properly entered. The plaintiff was guilty of negligence in going upon the road-bed before the train had passed. He should have remained on the sidewalk. Carroll v. Penn. R. Co., 12 W. Notes Cas. 348. The plaintiff was standing at a place of known danger; the engine was approaching it. The duty of each was plain, to be vigilant, to be on the alert. If the engineer saw the plaintiff it was his duty to give warning, and if he did not do so it was negligence. More than this, if he is approaching at a proper rate of speed, he is not bound to do. He has a right to suppose that a person upon the track is in full possession of his faculties, and that he will in the event of danger step from the track and avoid it; that unless, there is brought to the attention of the engineer some fact from which he can see that the person upon the track cannot get off, he has a right to believe that he will use his senses and clear the track. Herring v. W. & R. R. Co., 10 Ired. 402; Wilmington, etc., R. R., 74 N. C. 655; Louisville & N. R. R. v. Cooper's Executor, 78 Ky. Moore v. Phiadelphia, etc., R. Co. Opinion

by Paxson, J.

[Decided March 2, 1885.]

WILL-PROVISION FOR WIDOW'S MAINTENANCE-A testator directed in his will that his farm should be

as against creditors of the vendee. Wagner v. Commonwealth. Opinion per Curiam. [Decided April, 1885.]

PROFES

TRUST AND TRUSTEE- COMPENSATION SIONAL SERVICES.-The question of reasonable compensation to trustees depends largely upon the circumstances of each particular case, and cannot be properly determined by any inflexible rule. Carrier's Appeal,79 Penn. St. 230. While in practice it is usually claimed and awarded in the form of a commission, the rate is not determinable by any established rule. It must be graduated according to the responsibility incurred, the amount of the estate, the nature and extent of the services necessarily performed. Harland's Appeal, 5 Rawle, 323, 330. In that case Chief Justice Gibson says, compensation "may be awarded even in a gross sum, according to a common practice in the country, which I take to be the preferable one, as it necessarily leads to an examination of the nature, items, and actual extent of the services: which the adoption of a rate per centum has a tendency to leave out of view." It cannot be doubted that for services of an extraordinary character, rendered by a trustee, he is entitled to an extra compensation beyond the usual allowance for receiving and disbursing trust funds. If professional services, necessary to the proper administration of the trust, have been rendered by a trustee, in person, he is clearly entitled to such reasonable compensation as he would have paid had he been obliged to employ counsel. If authority for a principle so manifestly just and reasonable as this be required, it may be found in Lowrie's Appeal, 1 Grant, 373. Perkins' Appeal. Opinion by Sterrett, J.

[Decided Feb., 1885.]

WILL-LEGACY-CHARGE ON LANDS. A testator may make a legacy a charge upon lands which he devises, by express direction or by clear implication. When he blends his real and personal estate together in a general devise, it is a circumstance to be considered in determining whether the legacies are chargeable on the realty. An obligation may be imposed on a devisee, by his acceptance of the estate, to pay a legacy without it being charged on the land devised. Thus a devise of land on a contingency to several, they paying another named in lieu thereof the sum of $800, was held not to constitute a charge on the land upon the happening of the contingency. Montgomery v. McElroy, 3 Watts & S. 370. So a devise to testator's son, Thomas, of land. If he choose to accept it, he was to pay $1,700 to different persons. He did accept the devise; yet it was held the legacies were not a charge on the land. Wright's Appeal, 12 Penn. St 256. A devise that H. "is to take the 100 acres of land at my death, and pay $700 to each of my within-named heirs," and H. accepted the devise, held, that he became per

ated for the maintenance of his widow. The farm being sold to pay debts of decedent, the residue was invested, and not yielding an amount greater than was reasonably necessary for the widow's support. Held, that the entire income of said fund was hers absolutely, and if she did not draw it all she could dispose of the balance by will or otherwise as she saw fit. Mounts' Appeal. Opinion by Gordon, J. [Decided Nov. 13, 1884.]

DEBTOR AND CREDITOR-CONDITIONAL SALE OF PERSONAL PROPERTY.--Where originally an absolute sale of certain personal property is made, under which the purchaser takes possession, and subsequently finding himself unable to pay, takes a lease of the property from his vendor, on compliance with the terms of which a bill of sale is to be made out, no change of the actual possession taking place, the vendor has no title

collected of him in assumpsit, but that they were not charged on the land. Hamilton v. Porter, 13 P. F. S. 332. A mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on farm, and directed that they should pay his daughter the land. Thus a testator gave to his two sons all his a certain sum in two years after his death. It was held not to imply that the legacy should be a charge on the land. Cable's Appeal,91 Penn. St 327. Referring to the will now before us, we find the testator gave to his wife all his real and personal estate during her life, after paying out of the same all his debts and funeral expenses. After her death he gave to the appellee and her heirs all his real and personal estate that should be left at her decease. It was an absolute devise, without any reference to the payment of legacies or an intimation that any would be given by the will

of the testator. The legacy in question was given to the appellant in a subsequent part of the will. It is true the appellee was thereafter made the residuary legatee of all the personal estate of the testator. This however creates no implication that any specific legacy was thereby chargeable on the real estate previously devised to the appellee. Penny's Appeal. Opinion by Mercur, C. J.

[Decided March, 1885.]

RHODE ISLAND SUPREME COURT

ABSTRACT.*

MARRIAGE-DOWER-CHOSE IN ACTION ASSIGNMENT.-A widow's right of dower in the real estate of her deceased husband before assignment is not an estate, but a mere chose or right in action. Weaver v. Sturtevant, 12 R. I. 537, 539, 540. Being a chose in action, it is not subject to levy and sale on execution. Freem. Exe., § 185. Nason v. Allen, 5 Me. 479, 481, 482; Gooch v. Atkins, 14 Mass. 378, 381; Waller v. Mardus, 29 Mo. 25, 27; Sheilds' Heirs v. Batts, 5 J. J. Marsh. 12, 15; Petty v. Malier, 15 B. Mon, 591, 604. The proceedings set forth in the bill did not therefore confer any title to the right of dower of the respondent Nancy upon the complainants, or create any lien thereon in their favor which can afford a basis for relief in equity. The only csses in which the right of dower before assignment has been subjected in equity to the payment of debts, cited by the complainants, or which have come to our notice, are Davidson v. Whittlesey, 1 MacArthur, 163; Tompkins v. Fonda, 4 Paige, 448, and Payne v. Becker, 87 N. Y. 153, 158. The first and last of these rest upon the authority of the second, Tompkins v. Fonda. In this case the chancellor says that if the widow is in possession or is entitled to an assignment of dower immediately, the want of a mere formal assignment of dower is not considered material. See also Duke of Hamilton, P. Wms. 118, 122; Greene v. Keene, 14 R. I. . Maxon v. Gray. Opinion by Matteson, J.

PRACTICE-REMEDY AT LAW AND EQUITY-ELECTION.-It is the practice in chancery where a party is suing for the same matter both at law and in eg compel him to elect in which court he will proceed. Story Eq. Jur., § 889; Rogers v. Vosburgh, 4 Johns. Ch. 84. Where a party so suing has obtained a decree in equity for an account he will be deemed to have made his election without any order therefor, and will not be permitted afterward to proceed at law. Mocher v. Reed, 1 Ball & B. 318; Wilson v. Wetherhead, 1 Meriv. 406; Conover v. Conover, 1 N. J. Eq. 403; Wedderburn v. Wedderburn, 2 Beav. 208. "When a decree has been pronounced," say the court in Mocher v. Reed, "and the party obtains the relief he prayed, it is a contempt of court to proceed at law." In Quidnick Company v. Chaffee, 13 R. I. 367, 389, this court decided that after a complainant has carried his suit in equity to a decree, the court will presume that he has made his election, and will stay suits at law for the same matter and order the discharge of attachments in them. The case does not differ in this respect from the case at bar except that in the case at bar it is the defendants, and not the complainants, who are proceeding at law. But the suit here is for an account, the defendants joined in the prayer for the account, and the decree has been entered accordingly. In such a suit after the decree all the parties are actors, and the court will not permit a complainant to dismiss his own bill unless upon consent. 1 Dan. Ch. Pl. & Pr. *793. In such a suit, if a balance be found for the defendant, he is entitled to a decree for it against the *To appear in 14 Rhode Island Reports.

complainant. If the complainant dies after decree for an account the defendant can revive the suit against the personal representatives of the complainant, and if he himself dies his personal representative may revive it. 1 Story Eq. Jur., § 522. Jenks v. Smith. Opinion by Durfee, C. J.

REPLEVIN-BREACH OF BOND.-The condition of a replevin bond was that the plaintiff in replevin should prosecute the writ to final judgment, pay such damages and costs as the defendant might recover against him, and restore the same goods and chattels in like good order and condition as when taken, in case such should be the final judgment on the writ. The replevin writ, upon its face good, was dismissed on appeal for want of jurisdiction in the court below from which it issued. Held, that to satisfy the conditions of the bond, the plaintiff in replevin must prosecute the writ to a final judgment on the merits of the case affirming his own right of possession or ordering a return and restoration to the defendant. This view of the true intent and meaning of the condition of the bond appears to be well supported by authority. In cases where the condition of the bond is substantially the same as that prescribed in our statute the language has received the same construction, which seems to us both reasonable and necessary. Flagg v. Tyler, 3 Mass. 303; Roman v. Stratton, Bibb, 199; McDermott v. Isbell, 4 Cal. 113; Mills v. Gleason, 21 id. 274; Sherry v. Foresman, 6 Blackf. 56; Berghoff v. Heckwolf, 26 Mo. 511; Wiseman v. Lynn, 39 Ind. 250; Persse v. Watrous, 30 Conn. 139. Pierce v. King. Opinion by Carpenter, J.

MALICIOUS PROSECUTION-PROBABLE CAUSE-FORMER ADJUDICATION.-In an action for malicious prosecution brought by A. against B., a judicial finding in the former action in favor of B. and against A. by the court of original jurisdiction is conclusive of probable cause, when such finding is not procured by unfair means, even if such finding is reversed on appeal. It was early decid in Reynolds v. Kennedy, 1 Wils. 232, that the finding against the plaintiff by the tribunal before which the complaint was made is conclusive evidence at there was probable cause for the compraint en although that finding was afterward re

ed on appeal. This case is cited with apparent approval by Lord Mansfield and Lord Loughborough in Johnstone v. Sutton, 1 Term Rep. 510. The same doctrine has been applied in numerous cases in this country. Whitney v. Peckham, 15 Mass. 243; Cloon v. Gerry, 13 Gray, 201; Palmer v. Avery, 41 Barb. 290; Spring v. Besore, 12 B. Mon. 551; Griffis v. Sellars, 4 Dev. & Batt. 176. In Burt v. Place, 4 Wend. 591, the court carefully examine and expound the doctrine of Reynolds v. Kennedy, and sustain the declaration on the clear ground that it goes beyond the declaration in that case inasmuch as it alleges that the defendant well knowing that the plaintiff had a good defense, prevented the plaintiff from procuring the necessary evidence to make out that defense by causing him to be detained a prisoner until the judgments were obtained, and that the imprisonment was for the purpose of preventing a defense to the actions. In this case however there is no allegation that the judgments of the justice courts were obtained by any unfair means practiced on the part of the defendant. We think the true rule is that a judicial finding by the court of original jurisdiction, not alleged to have been procured by unfair means, must be held to be conclusive on the question of probable cause. There are indeed cases which hold to the contrary, but they are few in number, and do not seem to us to be otherwise sufficient to control the general current of the authorities. Goodrich v. Warner, 21 Conn. 432; Mayer v. Walter, 64 Peun. St. 283. It is to be noted that in Virginia the court were divided in opinion on this

WISCONSIN SUPREME COURT ABSTRACT. REPLEVIN -NEW PARTY DEFENDANT REV. STAT. WIS., 1878, § 2610-WIFE AS PARTY.-C. brought an action against G. to replevy a buggy and other property. G. claimed to hold the property as bailee or custodian of C.'s wife. The wife made application to be made a party defendant, claiming that the property was her property, that C. had no interest therein, and that he claimed adversely to her. Held, that she could be made a party to the suit. These views seem to have the support of the decisions of other courts under similar statutes. Conklin v. Bishop, 3 Duer, 646; Shaver v. Brainard, 29 Barb. 25; Cecil v. Smith, 81 N. C. 285; Hiner v. Newton, 30 Wis. 640. The case is distinguishable from Davis v. Mayor, 14 N. Y. 506; Scheidt v. Sturgis, 10 Bosw. 606; Colgrove v. Koonce, 76 N. C. 363. This application to be made a party must be regarded as a special proceeding within the meaning of § 2594, Rev. Stat. Cornish v. Milwaukee & L. W. R. Co., 60 Wis. 478; Wisconsin Cent. R. Co. v. Cornell University, 49 id. 164. Being a final order affecting a substantial right, made in a special proceeding, it is appealable. Sub. 2, § 3069, Rev. Stat.; In re Orton, 54 Wis. 379; Evaus v. St. Paul F. & M. Ins. Co., id. 522. It is urged that the wife should not be made a party defendant, for the reason that the husband cannot maintain an action of replevin against his wife. This certainly would be the law on the old theory of the marital relation. Whether it is now, and in this State, must depend upon our own statute. It is the law in this State that "every married woman may sue in her own name," and has "all the remedies of an unmarried woman in regard to her separate property or business," and is "liable to be sued in respect to her separate property or business, and judgment may be rendered against her, and be enforced against her and her separate property, in all respects as if she were unmarried." Section 2345, Rev. Stat. This statute means just what it says, and must be liberally construed. Krouskop v. Shontz, 51 Wis. 215; Houghton v. Milburn, 54 id. 564; Shanahan v. Madison, 57 id. 279. So construed, if not by its plain language, the statute entirely removed the disabilities of coverture as to such property, as well with with respect to her dealings or contests with her husband as with any one else. Beard v. Dedolph, 29 Wis. 141. As to her separate property, or in contests over what she claims to be her separate property, there can be no doubt, under this statute, but what she can sue her husband at law or in equity. Moore v. Moore, 47 N. Y. 467; Southwick v. Southwick,, 49 id. 510; Wright v. Wright, 54 id. 437: Wood v. Wood,83 id.575; Adams v. Adams,91 id. 381. As to such cases, it seems to be equally clear that the husband can sue his wife at law or in equity. Berdell v. Parkhurst, 19 Hun, 358. That action was for the value of property alleged to have been converted by the wife. The language of our statute is plain. The wife may be sued in respect to her separate property or business," and in respect thereto has "all the remedies of an unmarried woman. The husband is nowhere excepted from the operation of the statute, and we have no right to except him. Carnoy v. Glessner. Opinion by Cassoday, J.

[Decided March, 1885.]

SURETY-LIABILITY OF SURETIES ON BOND-GUARANTY.-Where by the express language of a bond, the guaranty only extends to goods consigued to the principal therein named, as per terms of a written contract referred to therein, which forbids any shipments in excess of a certain amount before returns of all pre

vious shipments have been made, there can be no liability on the part of the sureties for shipments made in violation of the contract thus imported into the bond by way of recital. It is elementary that sureties are favorites of the law, and have a right to stand upon the strict terms of their obligation when ascertained. Beyond the burdens thus taken upon themselves, they are not bound. Brandt Sur., § 79. We must assume, from the record, that the undertaking upon the part of the sureties was gratuitous, and as sureties

* *

merely, without any interest in the subject-matter of the contract, and without any counter-security. This being so, they they are under no moral obligation to pay the debt of their principals. Their principals might be held upon an implied contract, but there can be no implied liability to charge the sureties. They are only bound to the extent of their agreement, and only by reason of their agreement. Such is the settled rule. Ludlow v. Simond, 2 Cai. 29; Brandt Sur., § 80; Smith v. Lockwood, 34 Wis. 77, 78; Jenkins v. Gunnison, 50 Wis. 393; S. C., 7 N. W. Rep. 256, 423. The question here presented was ably discussed on both sides, and numerous authorities cited. The seeming confusion among the authorities does not arise from any difficulty in ascertaining the rule, but in its application to a given state of facts. The intention of the parties, as ascertained from the writing creating the obligation, must in all cases prevail. When the only limitation is upon the extent of the surety's liability, then there is no difficulty in holding the undertaking to be a continuing guaranty to the extent so limited. Mason v. Pritchard, 12 East, 227; Parker v. Wise, 6 Maule & S. 239; Hitchcock v. Humfrey, 6 Scott, N. R. 540; Seller v. Jones, 16 Mees. & W. 112; Gordon v. Rae, 8 El. & Bl. 1065. Here by the express language of the bond, the guaranty only extended to "goods consigned * as per the terms of the written contract; " which as we have seen, forbid any shipments in excess of a certain amount before returns of all previous shipments were made. Certainly there can be no liability for shipments made in violation of the contract thus imported into the bond by way of recitals. Sanger v. Baumberger, 51 Wis. 592; S. C., 8 N. W. Rep. 421; Grant v. Smith, 46 N. Y. 93; Fond du Lac v. Moore, 58 Wis. 170; S. C., 15 N. W. Rep. 782; Thomas v. Olney, 16 Ill. 53; Myers v. First Nat. Bank, 78 id. 257. The plaintiff having thus violated its engagement with the sureties, as recited in the bond, was no longer in a position to recover against them for any breach, especially as the breach complained of might never have occurred had no such excessive shipment been made. from the whole instrument taken together, that it was the intention of the parties that the surety should not be bound at all if the advances to be made should exceed the amount named, and they do exceed that amount, then the courts necessarily hold that the surety was thereby released. Farmers' & Mech. Bank of Mich. v. Evans, 4 Barb. 487; Ryan v. Trustees, 14 Ill. 20; Finney v. Condon, 86 id. 78; Burt v. McFadden, 58 id. 479; Bragg v. Shain, 49 Cal. 131; Victor S. M. Co. v. Scheffler, 61 Cal. 530. The facts here bring the case within this rule. But the two classes of cases mentioned do not differ in principle. They turn on the intention of the parties as found from the writings in a given case. Brandt Sur., § 103. Kimball v. Baker. Opinion by Cassoday, J. [Decided March, 1885.]

THE

Whenever it is found,

CLOSING OF THE STATE LIBRARY.

HE State library will be closed to the public from the fifth to the twentieth inst., inclusive, for the purpose of cleaning.

his small army won victory after victory by continually presenting the larger number on the field · glorious but hopeless campaign! No single battle like that of Frederick at Rossbach, where with twenty-two thousand men he attacked in detail on the march, and defeated fifty thousand, taking six thousand prisoners and seventy-two guns, and losing only three hundred killed and wounded! It must be admitted too that Grant never did any thing more brilliant than Jackson's audacious offensive movement at Chancellorsville; but alas! there was no steadfast Grant there to counteract it.

On the other hand, it is grossly unfair to call him a "butcher." The civil war was to be decided only by the complete exhaustion of one or the other party, by long attrition, by overrunning and annihilating; and so at the last he found at Appomattox but a handful of prisoners. Grant's plan was economical of life in the long run, although for the few dreadful months it seemed horribly profuse of blood. In two or three instances he failed with great loss, as at Cold Harbor; but Napoleon lost fifteen thousand men in one charge at Wagram, and the Confederates vainly beat themselves in pieces on Malvern Hill and Cemetery Ridge. It must ever be a cause of deep thankfulness that Grant was not on the other side; but no student of military history can refrain from conjecturing whether the result would have been the same. Then indeed he would have had the opportunity, which he never found, to prove himself "the greatest general the world ever saw," and very possibly the war would have been earlier and differently decided by the fall of Washington.

We like to adapt our reports of cases to the season and the weather. Here is an interesting decis ion, in State v. State Medical Examining Board, 32 Minn. 324, that the State may authorize the State medical board to refuse a certificate, as a necessary condition to the right to practice medicine, for "unprofessional or dishonorable conduct," but the applicant has a right first to be heard, and is not entitled to mandamus to review the determination. "It appears that the relator applied for a certificate from the board, presenting a diploma, which was found to be genuine, showing that he was a graduate of the Louisville (Kentucky) Medical College, in which institution he had passed the prescribed course of study. His application was refused only upon the ground, that as the board considered and determined, the relator was guilty of unprofessional and dishonorable conduct, and was at that time conducting himself in an unprofessional and dishonorable manner, in advertising himself through the newspapers and by circulars to be a medicine man of the Winnebago tribe of Indians, adopted by that tribe, and assuming the name of White Beaver,' and claiming in such publications the proprietorship of certain specific remedies, one of which he claimed would cure cholera morbus when taken internally, and rheumatism when applied ex

ternally; which claims are alleged by the respondents to be untrue and impossible." Now it may be that the relator's conduct was undignified, but how did the State board know that the same remedy would not cure cholera morbus inside and rheumatism outside, never having tried it? In these cholera morbus times the experiment is well worth trying, and if the remedy did but half of what its discoverer proposed it would be a great boon.

The New Jersey Law Journal also brings us a soothing adjudication for married men, in Briggs v. living with her minor married daughter and the Bell, Passaic Circuit Court, May, 1885, that a mother daughter's husband, is not the head of the family, especially when the mother has no more means than

the son-in-law. This may be the law, but is it the fact? In this case it appeared that all that the mother had was $250, which she had borrowed from the son-in-law, and that was all he had. That would seem to indicate qualities that would constitute the mother-in-law the head of the family. discussed in the books. This phase of Domestic Relations we do not find

I

NOTES OF CASES.

N Reg. v. Macdonald, Q. B. Div., May 9, 1885, 52 L. T. Rep. (N. S.) 583, a minor hired furniture on the "hire and purchase "system, under a contract by which he undertook to pay for the furniture in quarterly instalments. After having paid four of such instalments, previously to the fifth instalment becoming due, he removed and sold the furniture without the knowledge and consent of the person from whom it was hired. Held that he was guilty of larceny as a bailee under the statute. Lord Coleridge, C. J., said: "I am of opinion that this conviction must be affirmed. The prisoner was indicted for larceny as a bailee. I am not sure that the whole argument has not been upon an irrelevant point, for it is doubtful whether the words 'as bailee' are rendered necessary by the act, section 3 of which enacts that whosoever being a bailee of any chattel, money or valuable security, shall fraudulently take or convert the same to his own use, or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny, and may be convicted thereof upon an indictment for larceny.' I will assume however that the words as bailee' are material, and that being so, it is said on behalf of the prisoner that he cannot be convicted under such an indictment because he obtained the goods, in respect of which he was indicted, on a contract which is void; that since by reason of his infancy, he could not enter into a contract, he could not be guilty of larceny as a bailee. Now, a contract certainly does arise out of a bailment; but on the other hand, a bailment is 'a delivery of goods in trust upon a contract, express or