which is a form of capital, and dooms him, while it lasts, to helpless idleness, Where there is no fraud it is the opposite of a remedy. Every rightminded man must rejoice when such a blot is removed from the statute book. But upon the power of a state, even in this class of cases, see the strong dissenting opinion of Washington, J., in Mason v. Hale, 12 Wheat. 370.

Statutes of limitation are statutes of repose. They are necessary to the welfare of society. The lapse of time constantly carries with it the means of proof. The public as well as individuals are interested in the principle upon which they proceed. They do not impair the remedy, but only require its application within the time specified. If the period limited be unreasonably short and designed to defeat the remedy upon pre-existing contracts, which was part of their obligation, we should pronounce the statute void. Otherwise we should abdicate the performance of one of our most important duties. The obligation of a contract can not be substantially impaired in any way by a state law. This restriction is beneficial to those whom it restrains, as well as to others. No community can have any higher public interest than in the faithful performance of contracts and the honest administration of justice. The inhibition of the Constitution is wholly prospective. The states may legislate as to contracts thereafter made as they may see fit. It is only those in existence when the hostile law is passed that are protected from its effect.

In Bronson v. Kenzie, 1 How. 311, the subject of exemptions was touched upon, but not discussed. There a mortgage had been issued in Illinois. Subsequently the legislature passed a law giving the mortgagor a year to redeem, after a sale under a decree, and requiring the land to be appraised, and not to be sold for less than two-thirds of the appraised value. The law was held to be void in both particulars as to pre-existing contracts. What is said as to exemptions is entirely obiter, but coming from so high a source, it is entitled to the most respectful consideration. The court, speaking through Chief Justice Taney, said: "A state may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered in every civilized community as properly belonging to the remedy, to be executed or not by every sovereignty, according to its own views of policy and humanity." He quotes with approbation the passage which we have quoted from Greene v. Biddle. To guard against possible misconstruction, he is careful to say further: "Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy, or directly on the contract itself. In either case it is prohibited by the Constitution." The learned Chief Justice seems to have had on his mind the maxim "de minimis,"

etc. Upon no other ground can any exemption be justified. "Policy and humanity," are dangerous guides in the discussion of a legal proposition. He who follows them far is apt to bring back the means of error and delusion. The prohibition contains no qualification, and we have no judicial authority to interpolate any. Our duty is simply to execute it.

Where the facts are undisputed, it is always the duty of the court to pronounce the legal result. Merchants' Bank v. The State Bank, 10 Wall. 604. Here there is no question of legislative discretion involved. With the constitutional prohibition, even as expounded by the late Chief Justice, before us on one hand, and on the other the State Constitution of 1868, and the laws passed to carry out its provisions, we can not hesitate to hold that both the latter do seriously impair the obligation of the several contracts here in question. We say, as was said in Gunn v. Barry, 15 Wall. 622, that no one can cast his eyes upon the new exemptions thus created without being at once struck with their excessive character, and hence their fatal magnitude. The claim for the retrospective efficacy of the Constitution or the laws can not be supported. Their validity as to contracts subsequently made admits of no doubt. Bronson v. Kenzie, supra.

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The history of the National Constitution throws a strong light upon this subject. Between the close of the war of the revolution and the adoption of that instrument, unprecedented pecuniary distress existed throughout the country. The discontents and uneasiness, arising in a great measure from the embarrassment in which a great number of individuals were involved, continued to become more extensive. "At length two great parties were formed in every state, which were distinctly marked, and which pursued distinct objects with systematic arrangement." 5 Marshall's Life of Washington, 75. One party sought to maintain the inviolability of contracts, the other to impair or destroy them. The emission of paper money, the delay of legal proceedings, and the suspension of taxes, were the fruits of the rule of the latter wherever they were completely dominant." Ib. "The system called justice was, in some of the states, iniquity reduced to elementary principles." "In some of the states creditors were treated as outlaws. Bankrupts were armed with legal authority to be prosecutors, and by the shock of all confidence society was shaken to its foundations." Fisher Ames' Works (ed. of 1859), p. 120. "Evidences of acknowledged claims on the public would not command in the market more than one-fifth of their nominal value. The bonds of solvent men, payable at no very distant day, could not be negotiated but at a discount of thirty, forty, or fifty per cent. per anLanded property would rarely command any price; and sales of the most common articles for ready money could only be made at enormous and ruinous depreciation. State legislatures, in too many instances, yielded to the necessities of their constituents and passed laws by which creditors were compelled to wait for the payment of

* * *

num.

their just demands on the tender of security, or to take property at a valuation, or paper money falsely purporting to be the representative of specie." Ramsey's Hist. U. S. 77. "The effects of these laws interfering between debtors and creditors were extensive. They destroyed public credit and confidence between man and man, injured the morals of the people, and in many instances insured and aggravated the ruin of the unfortunate debtors, for whose temporary relief they were brought forward." 2 Ramsey's Hist. S. C. 429.

Besides the large issue of continental money, nearly all the states issued their own bills of credit. In many instances the amount was very large. 2 Phillips' Hist. Amer. Paper Money, 29. The depreciation of both became enormous. Only one per cent. of the "continental money" was assumed by the new government. Nothing more was ever paid upon it. Act of August 4, 1790, §4, 1 Stat. 140; 2 Phillips' Hist. American Paper Currency, 294. It is needless to trace the history of the emissions by the states.

The treaty of peace with Great Britain declared that "the creditors on either side shall meet with no lawful impediment to the recovery of the full amount in sterling money of all bona fide debts heretofore contracted." The British minister complained earnestly to the American Secretary of State of violations of this guaranty. Twenty-two instances of laws in conflict with it in different states were specifically named. 1 Amer. State Papers, 195, 196, 199 and 237. In South Carolina "laws were passed in which property of every kind was made a legal tender in payment of debts, although payable according to contract in gold and silver. Other laws installed the debt, so that of sums already due only a third, and afterwards only a fifth, was securable in law." 2 Ramsey's Hist. S. C. Ib. Many other states passed laws of a similar character. The obligation of the contract was as often invaded after judgment as before. The attacks were quite as common and effective in one way as in the other. To meet these evils in their various phases the national constitution declared that "no state should emit bills of credit, make anything but gold and silver coin a legal tender in payment of debts, or pass any law * * impairing the obligation of contracts." All these provisions grew out of previous abuses. 2 Curtis' Hist. of the Const. 366. See, also, the Federalist, Nos. 7 and 44. In the number last mentioned Mr. Madison said that such laws were not only forbidden by the constitution, but were "contrary to the first principles of the social compact and to every principle of sound legislation."

Ev

The treatment of the malady was severe, but the cure was complete. "No sooner did the new government begin its auspicious course than order seemed to arise out of confusion. Commerce and industry awoke and were cheerful at their labors, for credit and confidence awoke with them. erywhere was the appearance of prosperity, and the only fear was that its progress was too rapid to consist with the purity and simplicity of ancient manners."-Ames' Sup. 122. Public credit was reanimated. The owners of property and holders

of money freely parted with both, well knowing that no future law could impair the obligation of the contract."-2 Ramsey, supra,433

Chief Justice Taney, in Bronson v. Kenzie, supra, 218, speaking of the protection of the remedy, said: "It is this protection which the clause of the Constitution now in question mainly intended to secure."

The point decided in The Darmouth College v. Woodward, 4 Wheat. 518, had not, it is believed, when the constitution was adopted, occurred to any one. There is no trace of it in the Federalist nor in any other contemporaneous publication. It was first made and judicially decided under the constitution in that case. Its novelty was admitted by Chief Justice Marshall, but it was met and conclusively answered in his opinion.

We think the views we have expressed carry out the intent of contracts and the intent of the constitution. The obligation of the former is placed under the safeguard of the latter. No state can invade it and congress is incompetent to authorize such invasion. Its position is impregnable, and will be so while the organic law of the nation remains as it is. The trust touching the subject with which this court is charged is one of magnitude and delicacy. We must always be careful to see that there is neither nonfeasance nor misfeasance on our part.

The importance of the point involved in this controversy induces us to re-state succinctly the conclusions at which we have arrived and which will be the ground of our judgment.

The remedy subsisting in a state when and where a contract is made and is to be performed is a part of it obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the constitution, and is, therefore, void.

The judgment of the Supreme Court of North Carolina is reversed, and the cause will be remanded with directions to proceed in conformity to this opinion.

NOTES OF RECENT DECISIONS.

COMMON CARRIERS-CONNECTING LINE-LIABILITY FOR LOSS-INSURANCE.-St. Louis Insurance Co. v. St. Louis, Vandalia & Terre Haute, R. R. United States Circuit Court, Eastern district of Missouri, 7 Ins. L. J. 343. Opinion by TREAT, J.-In the case of a contract with an express company, the shipper must look primarily to the company; and if he seeks to hold its agents responsible it must be through the contract of the express company with himself. Where the contract with the dispatch company was for transportation from St. Louis to Liverpool, no particular inland route being mentioned, and limited the liability to loss on its own road, and the loss occurred after the goods had passed into the control of another road, with which it had an agreement for the transport of goods: Held, that the dispatch company was not liable, and an insurer subrogated to the rights of the owner could not recover against it.

Louis Ins. Co.-Supreme Court of Wisconsin, 7 Ins. L. J. 396. Opinion by COLE, J.-1. Under the Wisconsin law of 1874, providing that in case of total loss the amount insured in the policy shall be taken as the. value of the property and the measure of damages, it is not necessary to set out the actual cash value of the property in the complaint. 2. A stipulation in the policy that a difference between the parties shall be submitted to arbitration, and that no action shall be brought until an award has been made, is inconsistent with the provisions of the statue, and void. No arbitration or award is needed before instituting suit.

CRIMINAL LAW-MURDER-NOLLE PROSEQUI NO BAR TO SUBSEQUENT PROSECUTION-PARDON-EV

IDENCE-CONNECTION OF PRISONER WITH CRIMINAL ORGANIZATION ACCOMPLICE COLLATERAL MATTER-RES GESTAE.-Hester v. Commonwealth. Supreme Court of Pennsylvania, 5 W. N. 213.Opinion by WOODWARD, J.-1. A prisoner, under indictment for murder, pleaded in bar a former arrest and indictment for the same offense and discharged under the statute after remaining untried for two terms of court. The record showed that, soon after the second term of court, held subsequent to the prisoner's commitment, had expired, a nolle prosequi was entered in his case, and, on motion, he was discharged: Held, (affirming the judgment of the court below) that the record did not show a discharge under the two term provision of the statute, and the entry of the nolle prosequi was not a bar to the second indictment. At common law a nolle prosequi may at any time be retracted, and it not only is no bar to a subsequent prosecution on another indictment, but may be so far cancelled as to permit a revival of proceedings on the original bill. 2. A confessed accomplice in a murder, offered as a witness to fasten participation in the crime upon the prisoner, was objected to on the ground that he had been convicted of larceny, sentenced to three years' imprisonment, and the period of his sentence had not yet expired. This objection was met by the production of a pardon granted by the governor. Against this it was alleged that the rules of the board of pardons had not been observed, and that the full sentence of the court was not recited. The pardon was regular in form, except that it did not set forth, as required, the direction for the restoration of the property stolen, or the payment of its value: Held (affirming the judgment of the court below), that the pardon was not thereby avoided, but was controlling and conclusive upon the court. 3. The same witness was further objected to on the ground that he had been convicted of highway robbery, sentenced, and, after serving a portion of his time, was discharged under the act of May 1, 1861. It was claimed he was incompetent to testify, not having complied with the terms of his sentence. The record of his conviction showed the trial to have been held in the court of Quarter Sessions: Held, that the record showing a conviction in the Quarter Sessions for a crime triable only in the Oyer and Terminer, the whole proceeding was a nullity and was properly disregarded by the court below. Dougherty v. Commonwealth, 19 Sm. 286, followed. 4. In a trial for murder which was preceded by highway robbery, the Commonwealth offered to prove that defendants were members of a secret organization, which had for its object the commission of crime, chiefly beatings, arsons, robberies and murders, and the protection of its members from arrest and punishment. The purpose was to show an extensive organization of conspirators, and that the robbery and murder, with which defendants were charged, were within the general scope of the conspiracy, also as tending to show opportunity, preparation, and disposition to commit the crimes, and to corroborate other testimony and explain the conduct of the prisoners and their associates. The court admitted the testi

mony so far as to prove the fact of membership in such organization, confining the evidence to facts that existed at the time of the murder: Held, that sach evidence was clearly competent to the extent to which it was admitted. 5. It was shown that on the night preceding the murder the prisoners and others charged with participation in the murder met together at a certain saloon and remained there till nearly daylight: Held, that evidence was properly admitted to show that this saloon was a common resort of members of the secret organization referred to. 6. The testimony of an accomplice, before it is accepted as true, should be corroborated by unimpeachable testimony in some material part which affects the prisoner on trial and connects him with the offence. But it is not necessary that the corroboration be by direct testimony. It may be by such circumstances as satisfy the jury of the fact. 7. Defendants proposed to prove that K., the principal witness for the Commonwealth, had been guilty of various crimes; this for the purpose of contradicting K., who, on cross-examination, had denied these charges: Held (affirming the judgment of the court below), that the question put on cross-examination, being as to matters unconnected with the cause or with the parties, came within the rule of collateral matter, and was not subject to contradiction. 8. Statements made by a prisoner to outside parties relative to his return home and surrender into custody, can not be made evidence on the principle of res gestæ. 9. When testimony is given tending to discredit the statement of a witness, evidence is admissible to show that he had previously related the same thing to other parties, not to show that his statement is true, but that it is not a fabrication of recent date.

SOME RECENT FOREIGN DECISIONS.

TRADE-MARK-NAME OF PLACE- SIMILARITY REPRESENTATIONS CALCULATED TO DECEIVE-INJUNCTION.-Siegert v. Findlater, English High Court of Justice, Chy. Div., 26 W. R. 459. In 1830, S began to manufacture, at Angostura, a town in Venezuela, bitters, which he originally described as Aromatic Bitters, but which became known in the English market as Angostura Bitters. S subsequently described his bitters as "Aromatic, or Angostura Bitters." In 1846, by a decree of the State of Venezuela, the name of the town of Angostura was changed to that of Ciudad Bolivar. M, who was also a manufacturer of bitters (which were not the same as the plaintiffs'), moved in 1870 to the town of Ciudad Bolivar, and sold and described his bitters as Angostura Bitters. In an action brought by the successor of S to restrain the defendants, who were the agents in England, of M, from using the word "Angostura," and from using bottles and wrappers resembling those of the plaintiffs: Held, that the bitters of the plaintiff's having acquired a reputation in the market under the name of Angostura Bitters, the name "Angostura Bitters" meant bitters of the kind made by the plaintiffs, and that, though the defendants were at liberty to make bitters of that kind, yet, as their bitters were in fact different, they must be restrained from using the word "Angostura Bitters" in such a way as to induce the belief that they were selling the plaintiffs' bitters.

TRADE-NAME-TRADE-MARK-NEW SUBSTANCE.Linoleum Manfg. Co. v. Nairn. English High Court of Justice, Chy. Div., 26 W. R. 463.-The plaintiffs, or their predecessors in title, had, for some years, used the words "Linoleum" and "Linoleum Floor Cloth," to describe new substances, of which they were sole manufacturers under letters patent, and had stamped the words "Linoleum Floor Cloth" on each piece of floor cloth manufactured by them as part of their trade-mark, but not in such a manner as to lead the

court to suppose that the word "Linoleum" was any thing other than a description of the subject-matter to which the trade-mark was to be applied, or that it was the essential part of the trade-mark; and the same words had been in general use to describe the new substances while manufactured by the plaintiffs under the monoply given by their patent. The defendants now, after the expiration of their letters patent, bona fide claimed to use the same words to describe the same substances as made by them, which substances they were entitled to make. Injunction to restrain such uses by the defendants now refused. It would be extremely difficult in any case for the person who has been, by right of some monopoly, the sole manufacturer of a new article, and who has given a new name to the new article, meaning that new article and nothing more, to claim that the new name was to be attributed to his manufacture after competitors were at liberty to go on and make the same article.

BILL

FRAUDULENT CONVEYANCE-KnowledgeOF EXCEPTIONS.-1. Where a purchaser from a fraudulent vendor has knowledge of such facts as would excite the suspicions of a man of ordinary prudence and capacity, and shuts his eyes and refuses to inquire, he does not purchase in good faith, and is affected with notice of any fraud upon prior creditors effected by the sale. 2. Fraud may be established by inference, as any other fact, it is not necessary to establish it by direct proof. 3. An instruction that "fraud will not be presumed where all the facts of the case consist as well with honesty and fair dealing as with an intention to cheat," is objectionable, as calculated to mislead the jury, and seeming from the ambiguity of the word, 66 'presume," to imply that fraud cannot be inferred from facts in evidence. The use of technical phrases should be avoided in directions to a jury. 4. The mere fact that a conveyance for a valuable consideration delays creditors in collecting their debts, does not make it fraudulent in law; and from the fact that delay to creditors may result naturally from a conveyance for value, a fraudulent intent cannot be presumed. Where substantial alterations are made, or many interlineations occur in an instruction, it should be rewritten, that the bill of exceptions may plainly show in what shape the instruction was actually given to the jury. Reversed and remanded. Opinion by HAYDEN, J.— State, &c. v. Estel.

5.

TRUSTS AND TRUSTEES-JUDGMENT VOID AS TO ONE.-1. Where real estate is held by a trustee in trust for the sole and separate use of a married woman, and, by the terms of the trust, the power of disposition in the trustee is subject to the direction of the cestui que trust, in a proceeding to set aside the conveyance to the trustee for fraud, the cestui que trust is a necessary party defendant, and, if in such a proceeding the cestui que trust is dead at the time of the decree, the decree is inoperative against the heirs and legal representatives of the cestui que trust. 2. The rule that a judgment void as to one defendant, is void to all, applies only to judgments at law. Reversed and remanded. Opinion by LEWIS, P. J.-Voorhis v. Gamble.

PRACTICE-ACCOUNT-REQUISITES OF PETITIONPRINCIPAL AND AGENT.—1. Where plaintiff sues upon an account, he must exhibit the items by setting them out in his petition or attaching thereto a copy of

the account, and if he fails to do so it is error to admit evidence of the account against the objection of defendant. 2. Where an agent, in fraud of the rights of his principal, purchased property under such circumstances that the purchase enures to the benefit of the principal, an instruction from which the jury might infer that the agent ought not,on being deprived of the property thus acquired, to be reimbursed the actual price paid by him for the property, is erroneous. Reversed and remanded. Opinion by LEWIS, P. J.Labadie v. Maguire.

DIVORCE-INDIGNITIES-CONDONATION- ALIMONY -Default-CUSTODY OF INFANT CHILDREN.-1. In a divorce suit, the trial court is the proper judge of the credibility of the witnesses. 2. There can be no divorce for a single act of indignity; and cohabitation is but a conditional condonation of such offenses. A repetition of former offenses, after pardon, makes the antecedent indignities competent, as showing the continuity and persistency of the cruel treatment, and the hopelessness of further efforts on the part of the innocent and injured party. 3. It is irregular to make an order for alimony pendente lite before the marriage has been admitted or proved; but, after final decree, this action of the trial court will not be reviewed. 4. The default of defendant in a divorce suit will not be any waiver of the necessity of full proof as to all matters concerning the contract of marriage; but so far as the mere money interests of the defendant are concerned, he can not complain of any orders made upon the faith of the admissions implied by his failure to plead. 5. Where the testimony as to the value of the husband's property is conflicting, and the trial court has made a decree for a monthly allowance to the wife until further order, the appellate court will not interfere on the ground of an excessive allowance unless the alimony is clearly excessive. 6. Children of the age of three years are properly com. mitted to the custody of the mother, where she is not shown to be unfit to have the care of them. 7. Alimony at so much a month, may be alimony from year to year under the statute. Affirmed. Opinion by BAKEWELL, J.-Wagner v. Wagner.

PARTNERSHIP-CHILDREN SUCCEEDING TO INTEREST OF DECEASED PARTNER ACCEPTANCE. - 1. Where partnership articles provide that the share and interest of one partner is to continue after his death, in his children as his appointed successors, and these children, being sui juris, after the death of the father, receive monthly from the copartner the amount which their father was entitled under his agreement to draw monthly from the business, this is an acceptance of the benefits and responsibilities of the partnership, and the children are liable at the suit of a creditor of the firm. Affirmed. Opinion by LEWIS, P. J.—Nave v. Sturgis.

Associate Justices.

STATUTE OF FRAUDS DELIVERY OF WRITING NECESSARY.-The owner of land wrote a letter to her agent containing an offer to sell at a specified price. The offer having been accepted, a deed to the purchaser was forwarded to the agent, but on account of defective acknowledgment was sent again to the prin pal for correction and was never returned. To an action by the purchaser to compel specific performance, the statute of frauds was pleaded as a defense. Held, that neither the letter nor the deed was a sufficient

writing to take the sale out of the operation of the statute, neither having been delivered to the purchaser, although the deed was a short time in his possession. Opinion by SEEVERS, J.-Steel & Son v. Fife, et al.

66

PROMISSORY NOTES-STIPULATION FOR ATTORNEY'S FEES-RIGHT TO JURY TRIAL.-In an action on promissory notes containing a stipulation to pay all attorney's fees, and other costs and charges for the collection thereof, if the same is not paid when due," the attorney's fees may be regarded as costs and not a part of the notes, and it was not error to render judgment by default upon the notes, where the answer only put in issue the reasonableness of the attorney's fees which were claimed in a separate count of the petition. 2. The only issue raised by the answer being as to a matter of costs, the court did not err in refusing to grant the defendant a jury trial. SEEVERS and DAY, J. J., dissenting. Opinion by ADAMS, J.Musser v. Crum, et al.

COUNTERCLAIM-EFFECT OF JUDGMENT UPON.The defendant offered to confess judgment for a certain sum, and afterwards filed his answer containing a counterclaim. The offer was accepted and judgment entered thereon. Held, that the defendant could not afterwards dismiss his counterclaim and maintain a new action on the same; being embraced in the issues at the time judgment was returned, it was adjudicated, even though no evidence was offered thereon. Opinion by DAY, J.-Gunsaulis v. Cadwallader.

The

NEGLIGENCE - OPINIONS OF WITNESSES. opinions of witnesses that a turn-table on a railroad, not kept locked and not covered over, was a dangerous thing, and that it was negligence to leave it uncovered, (the witnesses not being experts), are inadmissible. The custom of railroads as to locking or covering turntables, is not evidence upon a question of negligence. Opinion by NAPTON, J.-Koons v. I. M. R. R. Co.

EQUITY SETTING ASIDE VOLUNTARY EVIDENCE. -Where a woman of 23 made a voluntary conveyance of one-half of her estate to her aunts, and the testimony discloses that the deed was not made from motives of gratitude or affection, and was suggested to the grantor by a relative in the interest of the grantees, in the ground of a moral obligation laid upon her to correct the hardships of Missouri laws in reference to aliens, and she was a young girl living in Ireland, and presumably ignorant of our state statutes, and did not Know what amount passed by her deed, and was led to believe that her rights originated in a prior compromise instead of a judicial determination in her favor: Held, in a suit in equity to set aside this conveyance, on the ground of undue influence and misrepresentation in obtaining it, that the conveyance must be set aside. Opinion by NAPTON, J.-Rankin et al, v. Patton et al.

PARTNERSHIP CONTRACT-SPECIFIC PERFORMANCE REFUSED AFTER PARTNER'S DEATH.-Defendant and complainant's intestate had been partners under written articles, whereby the firm property consisted of certain pine lands and a steam saw-mill, and the business was to be getting off, manufacturing and marketing the timber from the lands until it was all consumed. Intestate managed the mill, the marketing the lumber, and the firm's finances, while defendant managed the logging, etc. The articles provided for an equal division of the partnership assets on the expiration of business from any cause. Some years after a new arrangement was made in writing, whereby defendant conveyed to his partner, the intestate, all his interest in the mill, and the firm agreed with intestate that he should saw into lumber at his mill, 3,000,000 feet a year from logs to be furnished by the firm from their pine lands, at $3 per 1000 feet, until the timber should be cut off; the articles to continue in force, except as thus qualified. Complainant files this bill as administratrix, averring that defendant, on his partner's death, assumed control of the firm assets; that about 15,000,000 feet of timber remain uncut, and that the chief inducement of the last agreement was that intestate might obtain the contract of sawing it all; but that defendant refuses to furnish the logs, and that unless he is compelled to do so, the mill will be worthless. The bill seeks, by means of a receiver, or otherwise, to have the lumber furnished according to the contract, and under the prayer for general relief, compensation is asked for the damage sustained by non-fulfillment. Held, that there is no foundation for relief. There was nothing in the partnership articles to continue the partnership beyond the life of either partner. The agreement can not be specifically enforced, because no court of equity has any means of seeing to its execution, or of supplying the deceased partner's judgment and business faculty. Complainant, if entitled to manage the mill, can not perform for defendant what her intestate could have done. His death rendered the performance of very important conditions impossible, and must be regarded as dissolving the firm for all purposes. Decree dismissing the bill affirmed, without prejudice to a future bill for a partnership settlement if necessary. Opinion by CAMPBELL, C. J.-Roberts, adm'x. v. Kelsey.

ASSUMPTION OF MORTGAGE DEBT-GRANTEE NOT LIABLE AT LAW TO MORTGAGEE.-A mortgagee can not sue at law a grantee of the mortgaged premises, upon his agreement in his deed from the mortgagor to assume and pay the mortgage debt. In foreclosure proceedings in equity, the mortgagee, if the mortgage was included in the purchase-money of the deed, may be so far subrogated to the mortgagor as to have the benefit of such an obligation. Crawford v. Edwards, 33 Mich. 854; Miller v. Thompson, 34 Id. 10; Higman v. Stewart, Mich. April term. But no action at law lies by a third person against one who has promised to pay an obligation from a debtor of such person, but who has had no dealings with the creditor. Pipp v. Reynolds, 20 Mich. 88; Turner v. McCarty, 22 Id. 265. Opinion by CAMPBELL, C. J.-Hicks v. McGarry.