ing that his title was unaffected thereby, or on the decision of this court as establishing that title, has kept his land, or has parted with it; and whether his grantee succeeded to his title before or since that decision. To illustrate: Illegal sales for taxes have been made of two lots of land; the owner of one of them has brought an action to recover it before the passage of the statute; the owner of the other has not; the first recovers his land, the second loses it. Again: The owner of one lot had alienated it before the decision in Wall v. Wall, or has kept it himself; the owner of the other lot has alienated it since that decision; in the first lot, the title of the owner or of his grantee is defeated; in the second, the title of the grantee is good.

We find it impossible to reconcile this statute with the fundamental principles declared in the Constitution of the Commonwealth, that every subject has the right to be protected in the enjoyment of his property according to standing laws; that his property shall not be appropriated, even to public uses, without paying him a reasonable compensation therefor; that he shall not be deprived of his property or estate, but by the judgment of his peers or the law of the land; and that the legislative department shall never exercise the judicial power. Declaration of Rights, Arts. 10, 12, 30. There is nothing in the previous decisions of this court that requires or warrants a different conclusion. But as the scope and extent of some of those decisions have been misunderstood, a brief review of them may be convenient.

In Grafton Bank v. Bickford, 13 Gray, 564, proceedings in insolvency, had in a county in which the office of judge of insolvency was vacant, before the judge of insolvency of an adjoining county, were stayed by this court, upon the ground that it was not a case in which the judge of insolvency of the county was "from sickness, absence or other cause, unable to perform the duties required of him," within the meaning of the statute of 1856, ch. 284, § 5. The legislature afterwards undertook to confirm all proceedings in insolvency so had, so far as they might be invalid for want of jurisdiction or authority in the judge. Stat. 1860, ch. 78. But that statute was held by this court to be unconstitutional, and therefore inoperative and void, not merely as to the proceedings which had been stayed by the former judgment of this court, but likewise as to similar proceedings in other cases. Denny v. Mattoon, 2 Allen, 360; Fayerweather v. Dickinson, 2 Allen, 385, note. In Bacon v. Callender, 6 Mass. 303, in which a statute, which provicled that in actions to recover lands which the tenant "now holds by virtue of a possession and improvement," he should be allowed to hold for his improvements, was applied to actions pending at the time of its passage, the court only held that the statute was as applicable to such actions as to those brought afterwards, and expressly reserved its opinion upon the general constitutionality of the statute, because that point had not been argued. In Albee v. May, 2 Paine, 74, a similar statute was upheld merely because

the Constitution of the State of Vermont, in which the land was, contained no provision applicable to the case. But in other States, under constitutional provisions like those of our Declaration of Rights, such statutes have been held unconstitutional as applied to titles already vested. Austin v. Stevens, 24 Maine, 520: Lambertson v. Hogan, 2 Pa. St. 22. See also Society for Propogation of Gospel v. Wheeler, 2 Gallison, 105; Webster v. Cooper, 14 How. 488. The early cases of Walter v. Bacon, 8 Mass. 468; Patterson v. Philbrook, 9 Mass. 151; and Locke v. Dane, 9 Mass. 360, in which statutes confirming acts of the Courts of Sessions extending the limits of jail yards beyond the land of the county and the highways adjoining, which had been held by this court in Baxter v. Taber, 4 Mass. 360, to be illegal, were allowed a retrospective operation upon bonds already given for the liberty of the jail limits, and even where the debtor had gone beyond the legal jail limits before these statutes were passed, appear to have overlooked the distinction between the defining of those limits for the future, which might well be held to be within the rightful authority of the legislature, and the meaning of the previous bonds, and the taking away of rights of action upon such bonds which had accrued before the passage of the statute. To the extent of taking away such rights of action, they have not been approved in later cases. Reed v. Fullam, 2 Pick. 159; Simmons v. Hanover, 23 Pick. 188, 194; Davison v. Johonnot, 7 Met. 396; Wildes v. Vanvoorhis, 15 Gray, 139, 148; Denny v. Mattoon, 2 Allen, 385.

General statutes changing joint tenancies into tenancies in common, the validity of which has been upheld as applied to tenancies existing at the time of their passage, merely cut off future rights of survivorship, and, while they give the tenant who dies first a more beneficial tenure than he had before, take nothing from the survivor which his co-tenant might not himself defeat in his life time, by conveying his own interest to a stranger, or by suing for partition. Miller v. Miller, 16 Mass. 59; Burghardt v. Turner, 12 Pick. 534, 539; Dunn v. Sargent, 101 Mass. 336, 340; Bambaugh v. Bambaugh, 11 S. & R. 191; 4 Kent Com. 363, 364. Special resolves of the Legislature, authorizing the sale of land of minors or of trust estates, and the investing and holding of the proceeds upon the same uses and trusts as before, have been sustained as merely providing for a change of investment. Rice v. Parkman, 16 Mass. 326; Davison v. Johonnot, 7 Met. 388; Sohier v. Massachusetts Hospital, 3 Cush. 483; Clarke v. Hayes, 9 Gray. 426; Watkins v. Holman, 16 Pet. 1. In Foster v. Essex Bank, 16 Mass. 245, the point decided was that a statute continuing corporations in existence for three years after the time limited by their charters, for the purpose of suing and being sued, might constitutionally apply to existing corporations. In Simmons v. Hanover, 23 Pick. 188, the only question was whether this court could entertain jurisdiction of a bill in equity under a statute passed after the filing of the bill and in terms ratifying proceedings al

ready had. In each of those cases, the statute affected no vested right, but matter of remedy only. The other cases in which retrospective statutes have been sustained in this court and in the Supreme Court of the United States, (without considering whether all of the latter which arose in other States could have been decided in the same way under the Constitution of this Commonwealth), are distinguishable from the cases at bar, and may be classified as follows: 1st. Cases of statutes confirming sales of land under order of court for an adequate consideration, where there was a want of jurisdiction in the court, or the deed was irregularly made to another person than the actual bidder, or the sale was after the time limited in the license, or the confirming statute was passed upon the petition of all parties having the legal title. Wilkinson v. Leland, 2 Pet. 627, 661, and 10 Pet. 294; Kearney v. Taylor, 15 How. 494; Cooper v. Robinson, 2 Cush. 184, 190; Sohier v. Massachusetts Hospital, 3 Cush. 483. 2d. Statutes confirming conveyances by an executor or trustee under a will. where the only objection was to the manner of his previous appointment and giving bond, which might perhaps not be open to be contested in a collateral proceeding, even if no such statute had been passed. Weed v. Donovan. 114 Mass. 181; Bradstreet v. Butterfield, 129 Mass.; Bassett v. Crafts, 129 Mass. statutes are somewhat analogous to those confirming deeds acknowledged before a person acting as magistrate, whose commission as such had expired, which could not have been questioned collaterally, he being an officer de facto. Brown v. Lunt, 37 Maine, 243; Denny v. Mattoon, 2 Allen, 384; Sheehan's Case, 122 Mass. 445, 447; Hussey v. Smith, 99. S. 20, 24. 3d. Statutes curing defects in the execution of private deeds and instruments, so as to give them effect according to the intention of the parties and the equities of the

case.

Such

Randall v. Creiger, 23 Wall. 137; Wildes v. Vanvoorhis, 15 Gray, 139; Denny v. Mattoon, 2 Allen, 377, 378, 383. 4th. Statutes confirming votes of towns for municipal or public purposes, which are within the paramount control of the legislature. Thompson v. Lee County, 3 Wall. 327; Beloit v. Morgan, 7 Wall. 619; Guilford v. Supervisors of Chenango, 13 N. Y. 143; Allen v. Archer, 49 Maine, 346; Freeland v. Hastings, 10 Allen 570. 5th. Cases in which the only point before the court was whether the statute in question contravened the Constitution of the United States, as being an ex post facto law, or a law impairing the obligation of contracts. Calder v. Ball, 2 Dall. 386; Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 88; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Baltimore & Susquehanna Railroad v. Nesbit, 10 How. 395; Carpenter v. Pennsylvania, 17 How. 456; Florentine v. Barton, 2 Wall. 210.

The other cases in the courts of the various States, cited in argument, afford no precedent for the action of the legislature in the cases before us, depend much upon the Constitutions and usages of the several States, and cannot be exam

ined in detail without extending this opinion to too great a length.

Appropriate judgments and decrees are ordered in the several cases.

ABSTRACTS OF RECENT DECISIONS.

ENGLISH, IRISH AND CANADIAN CASES.

HORSE-CONDITIONAL SALE DEATH OF HORSE BEFORE SALE ABSOLUTE.-A horse was sold by the plaintiff to the defendant on condition that it should be taken away by the latter and tried by him for six days, and then returned if the defendant did not think it suitable to his purposes. The horse died (through no fault of either party) three days after it had been placed in defendant's stable. Held, that the plaintiff could not maintain an action for goods sold and delivered.-Elphick v. Barnes. English High Court, C. P. Div., 49 L. J. C. P. 699.

TRADE NAME ADVERTISEMENT - DECEPTION— EVIDENCE.-A tradesman may use a name, though he knows that a neighboring tradesman intends to use it. The defendant, a bootmaker, wrote up over his shop in Bedford street, having its front and entrance in the Strand, the words "Civil Service Boot Supply." The Civil Service Supply Association was, at that time, building a store on Bedford street, which they opened as a general shop, and they also opened a boot shop in Tavistock street, close by. A customer of the association had gone to the defendant's shop, mistaking it for that of the association. Held, that there was no proof of the defendant's intention to deceive, and that the association were not entitled to restrain him from using the words "Civil Service Boot Supply."-Civil Service Supply Association v. Dean. English High Court, Chy. Div., L. R. 1 Ch. Div. 512.

CATCHING BARGAINS-EXPECTANT HEIRS- UNFAIR ADVANTAGE-EXTENT OF RULE.-The rule against catching bargains is not restricted to the case of expectant heirs, but extends to all cases in which unconscientious and unfair advantage has been taken. Where, therefore, a money lender induced a younger son of a nobleman of high rank and great estate, while still under age, to borrow money of him on extravagantly usurious conditions, and to continue to do so after he had attained his majority, and the money lender made no inquiry into the position of the borrower, but relied for repayment, not on any definite expectations of the latter, but on the probability that, if he should be unable to pay, his father or friends would pay to avert bankruptcy and exposure, or that he would himself pay if he should by any means come into any of the family property, and unconscientiously received and afterwards insisted upon the continuance of payments originally made to him by the borrower under a mistake, and without any obligation to do so: Held, that the money lender was only entitled to obtain repayment of the sums actually advanced, with interest at five per cent. from the dates of the several advances. Nevill v. Snelling, English High Court, Chy. Div., 43 L. T. (N. S.) 244.

VENDOR AND PURCHASER-CONVEYANCE OF LAND FOR INTENDED BUILDING-COVENANT BY VENDOR TO INCLOSE PURCHASED LAND WITH WALL OR RAILING-ACTION FOR BREACH-MEASURE OF DAM

AGES-PRINCIPLE ON WHICH DAMAGES ASSESSED.In February, 1872, the defendant corporation purchased of W a piece of land, parcel of his freehold estate at C, for the purpose of building thereon a blind school or asylum; and it was conveyed to them, their successors and assigns, in fee by a deed containing a proviso that if the said corporation should not use or require the land for the purpose of building a school or asylum for the blind, and should at any time within ten years from the 11th of August, 1872, desire to sell the same or such part of it as they should not use or require as aforesaid, then W, his heirs or assigns, should have a right of pre-emption at the price therein specified, for the whole or at the rate per acre therein specified, if for only a part of said land; and that the corporation and their successors would not take proceedings for sale until after the expiration of six months' previous notice to W, his heirs or assigns, of their desire to sell, during which period of six months, W, his heirs or assigns, might elect to exercise the right of pre-emption by giving notice to that effect to the corporation or their successors. By the same deed the defendants also covenanted for themselves, their successors and assigns, with W, his heirs and assigns, that the said piece of land "should be kept inclosed by the corporation. their successors and assigns. on all the sides abutting on the land belonging to W with a brick wall or iron railing seven feet high at the least; and that the side, fronts, and faces of all erections and buildings towards the land belonging to W should be of a good architectural character, and consistent in design and appearance with the exterior of the principal building to be erected on the said land thereby conveyed." W died in September, 1878, and no wall or railing having been erected by the defendant in his lifetime, the plaintiffs, as his executors and trustees, required them to erect the same, which they failed to do, but gave notice to the plaintiffs that they did not require the land for building a school or asylum thereon. Thereupon the plaintiffs gave notice to the defendants to inclose the hand within a reasonable time with a wall or railing in accordance with their covenant; and upon the defendants neglecting so to do, the plaintiffs brought an action against them for damages sustained by W's estate, and by the plaintiffs as his representatives, through the defendants' breach of covenant; and on a special case for the opinion of the court, it was Held, by the Exchequer Division (Kelly, C. B., and Huddleston, B.), that the covenant by the defendants to inclose the piece of land in question "with a brick wall or iron railing seven feet high at the least," was an absolute covenant, and was not conditional upon the building by the defendants of a school or asylum upon the land; and that the damages to the plaintiffs in consequence of the non-erection of the said wall or railing should, in point of principle, be the amount which it would cost to erect the same in conformity with the covenant, and that they should be assessed upon that basis. Held, also, by Kelly, C. B., that, the defendants having failed to perform their covenant, an action for breach of it lay against them by the plaintiffs who, as executors and trustees, or otherwise as representatives of W's real estate, were entitled to receive the damages as covenantees, or executors of the covenantee, in an action for breach of a covenant in a deed inter partes. By Huddleston, B.: "In construing covenants, the fulfillment of the evident intention and meaning of the parties to them must be looked at, not confining oneself within the narrow limits of a literal interpretation, but taking a more liberal and extended view, and contemplating at once the whole scope and object of the deed in which they are contained. English High Court, Ex. Div. -Wigsell v. Corporation, 43 L. T., N. S. 218.

NOTES OF RECENT DECISIONS.

DISBARMENT OF ATTORNEY WHAT WILL!AUTHORIZE-EVIDENCE-APPEAL FROM DISCRETION. ARY ORDER.-1. The orders not reviewable in the Court of Appeals on the ground that they are discretionary, are those addressed to the favor of the court and to which the applicant has no absolute right, which may or may not be granted without wrong on either hand. 2. There is a distinction between proceedings for contempt occurring in the presence of the judge and the facts constituting which are certified by him, and cases of professional misconduct out of the presence of the court. In the former it is held that the facts embodied in the order of the judge must be taken as true; in the latter the right of review is asserted not only where there has been a want of jurisdiction, but also where the court below had decided erroneously on the testimony 3. In proceedings to disbar an attorney where the charges are denied, the common-law rules of evidence apply. The accused is not to be tried upon affidavits, but is entitled to confront the witnesses and subject them to cross-examination and to invoke the well-settled rules of evidence. 4, An attorney in proceedings for the probate of a will, who had taken out a commission for the examination of a witness, prepared answers for such witness to the interrogatories and cross-interrogatories, furnished them to the witness who had received various sums of money from him, read a part of the answers to the commissioner and left the rest for the witness to repeat, and thus got the answers before the surrogate as honest testimony. Held, sufficient to authorize an order disbarring the attorney, even though the answers were not shown to be false, and it appeared that the attorney believed them to be true. Affirmed. New York Court of Appeals. Opinion by FINCH, J.-Re Eldridge. 22 Alb. L. J. 350.

CONSPIRACY · EVIDENCE-CUSTOM.-Action for the value of goods obtained by defendants who were charged with fraudulent combination amounting to a conspiracy, for the purpose of obtaining them. R had acted as broker for plaintiffs. Testimony was given that it was a custom in the tobacco business, of universal extent, to disregard the statement of brokers in reference to the standing and credit of purchasers, and for the sellers to make their own inquiries as to the purchaser's credit. On appeal: Held, that proof of such a custom was not objectionable where there is nothing in the agreement to exclude its application, parties being presumed to contract with reference to a usage or custom which prevails in the particular trade or business to which the contract relates; 1 Ersk. 425; 6 N. Y. 72; that plaintiff having moved to strike the evidence out as immaterial, it could not have prejudiced the plaintiff. New York Supreme Court. Opinion by BRADY, J.-Fuller v. Robinson.

FRAUD IN OBTAINING DIVORCE-REMEDY IN ONE MARRYING DIVORCED PARTY.-Appeal from an order denying plaintiff's motion for judgment that the marriage between him and defendant be dissolved and declared null and void. Held, that though a decree of divorce is obtained by fraud and collusion, a person marrying one of the divorced parties can not avail himself of such fraud to obtain a judgment of nullity. 45 N. Y. 535; Bish. on Mar. and Div. § 706. New York Supreme Court. Opinion by BARRETT, J.— Ruger v. Heckel.

In an arbitration between plaintiff and defendant, plaintiff offered to produce certain witnesses named, in order to reconcile contradictory statements made by plaintiff and defendant, but was met by a refusal on the part of the arbitrators to receive any testimony except the statements of the parties, they construing the submission to limit their power to the act of passing upon the statements of the parties. Plaintiff did not offer to show what the witnesses offered would testify to. Held, that if the arbitrators were erroneous in the construction of the submission, their refusal to receive the testimony offered was such misconduct as would vitiate their award, and that plaintiff had not forfeited his rights by a failure to show what the proposed witnesses would testify to. The refusal of an arbitrator to examine witnesses is sufficient misconduct on his part to induce the court to set aside his award, though he may think he has sufficient evidence without them. Phipps v. Ingram, 3 Dowling, 669. In Van Cortlandt v. Underhill, 17 Johns. 405, it was held that if the arbitrators refused to hear evidence pertinent and material, it will vitiate the award. In Fredicar v. Guardian Ins. Co., 62 N. Y. 392, it is said that if an arbitrator refuses to hear competent evidence on the merits, his award will be set aside. 2. The decision of arbitrators as to their powers was not conclusive. No such question was submitted to them. It is for the court to judge whether the arbitrators have exceeded their powers or refused to exercise them. The general rule that their decisions are not reviewable on the mere ground that they are erroneous, is applicable only to their decisions on matters submitted to them. The submission is the foundation of their jurisdiction, and they are not the exclusive judges of their own powers. A submission contained this: "The arbitration shall be conducted and decided upon the principle of fair and honorable dealing between man and man." Held, not to justify the arbitrators in refusing to hear testimony other than the statements of the parties. Judgment reversed. New York Court of Appeals. ion by RAPALLO, J.-Halstead v. Seaman.

3.

Opin

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

September, 1880.

REVIVAL OF DEBT AGAINST ADMINISTRATOR-INDORSEMENTS OF PAYMENT.-A testator, some time previous to his death, held three mortgages on a certain parcel of real estate, and there was a fourth mortgage upon the same, in which C held one-third interest, and P the other two-thirds. C assigned his one-third to P, who agreed to account to C for one-third of the profits arising out of the sale of the estate. P then foreclosed the mortgage and became owner of the equity of redemption. Neither P nor C were liable for the payment of the notes secured by the three prior mortgages held by the testator. On a settlement of accounts between C and the testator, arising out of other transactions, C allowed the testator to charge him with one-third of the interest due on the three mortgage notes, thereby reducing his indebtedness to C, so that at the time of the testator's death he was indebted to C in the sum of $2,059. After the testator's death, C charged this sum in his books to the estate of P, and so informed the executrix, who was the wife and residuary legatee of the testator; and at the same time told her that he would allow as a set-off against this sum one-third of the interest

falling due on the three mortgage notes, so long as P continued to pay his two-thirds of the same. This arrangement was carried out, and the interest was so indorsed on the notes for about three years, at the end of which time there was a considerable balance then due C from the estate, At the time this proposa! was made, in pursuance of which the interest was afterwards indorsed on the notes, the notes were held by the testator's wife as executrix; and thereafter she rendered her final account, by which it appeared that the balance was paid to her as residuary legatee under the will; and in this balance were included the three mortgage notes; and after she thus held the notes, interest was indorsed as aforesaid for nearly three years. The executrix gave bond as such in common form, and no bond as residuary legatee to pay debts and legacies. The executrix never admitted that the claim of C against the estate was a valid one, or agreed orally or in writing to assume it, except by allowing one-third of the interest on the notes to be indorsed as aforesaid. The Gen. Stats., ch. 105, see. 1, provide that no action shall be brought * against an executor, etc., upon a special promise to answer damages out of his own estate, unless the promise, etc., is in writing, signed by the party to be charged, etc. Held, that the fact that the testatrix, after she received the mortgages and notes, allowed the interest to be indorsed on the notes, could not be taken as a promise in law by her to assume the debt due from the estate. It would be inequitable thus indirectly to place this burden upon her while C had assumed no legal obligation to pay his proportion of the mortgages and interest, and had only undertaken to pay one-third the interest thereon, while P continued to pay the other two-thirds. Under Gen. Sts., ch. 105, sec. 1, there must be a decree for the testatrix. Opinion by ENDICOTT, J.- Clarke v.

Palmer.

ADJOINING ESTATES-RESTRICTIONS IN DEEDSBREACH-EQUITY.-The City of Boston, being the owner of thirteen lots on Rutland Street, made agree ments of sale for the same with one B, in all of which agreements, and in the deeds to B of said lots, were inserted the same conditions and restrictions, the second of which provided that the front line of the building which may be erected on the said lot shall be placed on a line parallel with and fifteen feet back from the said Rutland street;" the fourth, that "no dwelling-house or other building, except the necessary outbuildings, shall be erected or placed on the rear of said lot." The complainant and defendant became severally the owners of adjoining lots, by several mesne conveyances, all made subject to said conditions and restrictions. The front wall of defendant's house left the ground on a line precisely fifteen feet from said street; but from a point about four feet above the ground, he constructed an addition to his house, about eight or nine feet wide in a line parallel with said street, and projecting three feet and three inches toward said street, extending to the cornice at the top of the house. Held, that the complainant was entitled to maintain a bill in equity for the removal of the addition built out from the house by the defendant. Whiting v. Union Railway Co., 11 Gray, 359; Parker v. Nightingale, 6 Allen, 341; Linzee v. Mixer, 101 Mass. 512; Western v. Macdermot, L. R. 2 Ch. Ap. 72. Opinion by SOULE, J.-Sanborn v. Rice.

TAXES ASSESSMENT-RE-ASSESSMENT- EQUITY -CLOUD ON TITLE.-The General Statutes, Ch. 11, 8, provide that taxes on real estate shall be assessed in the city or town where the real estate lies, to the person who is either the owner or in possession thereof on the first day of May, and that a mortgagee in possession shall be deemed the owner; and § 53

provides that taxes, invalid by any error or irregularity in the assessment, may be re-assessed by the assessors for the time being, to the just amount to which, and upon the estate or to the person to whom, such tax ought at first to have been assessed. On the first day of May, 1876, the first mortgagees were in posession of a mortgaged estate, owned by T and others, by virtue of a conveyance from W, dated August 17, 1875, and recorded December 15, 1875. May 1, 1876, the assessors of the City of Boston assessed a tax upon said estate to W. On July 11, 1877, the assessor of said city, by a re-assessment, assessed to said Tand others upon said estate a smaller tax for the year 1876, at a lower valuation; and August 29, 1878, the collector sold said estate, by deed duly recorded, to said city for the non-payment of said last-named tax. The plaintiff, owner and holder of said estate by virtue of the foreclosure of a second mortgage thereon, brought a bill in equity praying that the cloud upon his title, resulting from the foregoing proceedings, might be removed. Held, that the first mortgagees were the only persons to whom said first tax could be assessed; that a re-assessment was within the authority of the assessors for the year 1877, if made in the just amount and to the person to whom said tax ought at first to have been assessed; that the reassessment was invalid, because made to said T and others, the owners on May 1, 1876, of the equity of redemption, instead of to said first mortgagees in possession: that said collector's deed was void, and constituted a cloud on plaintiff's title; and that the bill might be maintained to remove said cloud. Opinion by SOULE, J.-Davis v. Boston.

SALE OF STOCK — EQUITY-PARTNERSHIP.-The plaintiff bought of F and H, July 10, 1878, 100 shares of the C. S. & C. R. R. Co., and paid them $487.50 for the same, and a power of attorney for the transfer of said shares was duly executed to the plaintiff. July 6, 8 and 9, F and H sold in like manner to other parties 1,400 shares of this stock, and certificates for them were issued to the purchasers by the company between July 12 and August 13 following. July 11, there were 900 shares standing in the name of F and H on the books of said company, and other shares were afterwards transferred to them or to F as trustee; and the plaintiff could have obtained a certificate from the company for his 100 shares at any time between July 11 and August 13; but he made no application for a certificate until February, 1879, at which time no shares were standing in the name of F and H. Soon after July 10, F and H dissolved partnership, a settlement was had, and F subsequently left the Commonwealth, being a defaulter; but I had no knowledge of the sale of shares to plaintiff until the filing of plaintiff's bill in equity, though the money was paid to F by the plaintiff before the dissolution of the firm; nor did H know that the stock account had been overdrawn, but he settled with F upon such information as he had. It did not appear that any of this stock came into H's hands upon this settlement, or that the firm or either of its members had any interest in the stock after August 13. The bill was originally brought against F. H and the Railroad Company, and prayed for a specific performance of the contract. By amendment, the persons to whom F and H had sold stock on July 6, 8 and 9, and the assignee in bankruptcy of F were made parties. Fraud was not found by the presiding judge, and a decree was entered dismissing the bill against all the defendants except H, and ordering him to pay the plaintiff the amount of $487.50 with interest and costs, from which decree both parties appealed. Held, that the plaintiff having voluntarily neglected to demand his stock, it

would not be equitable to give him the benefit that would accrue from its rise in value; that he obtained all he was entitled to by the decree imposing upon H the duty of paying the amount received by his firm for the stock; that, although the firm, by giving a power of attorney to transfer the stock, did all that was necessary to enable the plaintiff to obtain it, if he had used due diligence, yet, by reason of their subsequent acts, the plaintiff failed to get it, and equity requires that H should pay back the money received by the firm before its dissolution; that the bill should not be dismissed because the plaintiff might recover this sum in an action at law; and that the evidence of sales and transfers of the stock to other parties, who were parties to the bill, was competent as showing why the plaintiff did not obtain his stock, and as bearing on the question whether the transactions were fraudulent as against the plaintiff. Decree affirmed. Opinion by ENDICOTT, J.-Wonson v.

Fenno.

SUPREME COURT OF MICHIGAN.

October, 1880.

CRIMINAL CONVERSATION - EVIDENCE OF HUSBAND AND WIFE AS TO NON-INTERCOURSE.-1. An action lies by a husband for criminal conversation, even where the wife has not consented to the unlawful connection. 2. In an action for criminal conversation, the testimony of the husband and wife was admitted by the court, to the effect that they had had no intercourse at the time the child was begotten, and that the defendant "must have been its father: Heid, error. According to an ancient rule of the common law the evidence of neither husband nor wife could be received to disprove the fact of sexual intercourse (1 Wils. 340); and Lord Mansfield declared that it was founded in decency, morality, and policy" (Cowp. 591); and no judge or author has ever dissented from his strong approval. Greenleaf says that when the husband and wife cohabit together as such, and no impotency is proved, the issue is conclusively presumed to be legitimate, though the wife is proved to have been at the same time guilty of infidelity. 1 Ev. § 28. The warrant of authority is in favor of qualifying this statement, and, instead of regarding the presumption as conclusive, to require it to apply with great force, but subject to be overcome by admissible facts and circumstances of such cogency as to render belief necessary. 5 Cl. & Finn, 163; Wharton's Ev. §§ 1298, 1299, 1300; Best, Ev. (Wood's Ed.) 4:6, 464, 465. To overcome the presumption and disprove intercourse, there must be cogent facts and circumstances. 1 Sim. & S. 150; 6 How. 550. In Stigall v. Stigall, Chief Justice Marshall held that whilst it was not necessary to make out that connection was not possible, it was proper that the evidence should establish its non-occurrence beyond all reasonable doubt. 2 Brock. 250. And the Supreme Court of Massachusetts applied the same rule in Sullivan v. Kelley, 3 Allen, 148. See, also, 2 Allen, 453; 3 Paige, 139. Here, as already noticed, there was neither proof of inability nor of the certain want of opportunity, or even the faintest approach to a denial of the fact, and the child was born only eight months after the alleged violence. The circumstances permitted the assignment of the paternity of the child to the plaintiff without any infringement of the statements sworn to, and the court should have told the jury that there was no legal evidenee that the plaintiff was not father of the child, and that it was