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discrimination, as construed by the Supreme Court of that State. The effect of it is, that whatever may be the rate of transportation per mile charged by the railroad company from Gilman to Sheldon, a distance of twenty-three miles, in which the loading and the unloading of the freight is the largest expense incurred by the railroad company, the same rate per mile must be charged from Peoria to the city of New York.

The obvious injustice of such a rule as this, which railroad companies are by heavy penalties compelled to conform to, in regard to commerce among the States, when applied to transportation which includes Illinois in a long line of carriage through several States, shows the value of the constitutional provision which confides the power of regulating interstate commerce to the Congress of the United States, whose enlarged view of the interests of all the States, and of the railroads concerned, better fits it to establish just and equitable rules.

Of the justice or propriety of the principle which lies at the foundation of the Illinois statute it is not the province of this court to speak. As restricted to a transportation which begins and ends within the limits of the State it may be very just and equitable, and it certainly is the province of the State Legislature to determine that question. But when it is attempted to apply to transportation through an entire series of States a principle of this kind, and each one of the States shall attempt to establish its own rates of transportation, its own methods to prevent discrimination in rates, or to permit it, the deleterious influence upon the freedom of commerce among the States and upon the transit of goods through those States cannot be over-estimated. That this species of regulation is one which must be, if established at all, of a general and national character, and cannot be safely and wisely remitted to local rules and local regulations, we think is clear from what has already been said. And if it be a regulation of commerce, as we think we have demonstrated it is, and as the Illinois court concedes it to be, it must be of that national character, and the regula tion can only appropriately exist by general rules and principles, which demand that it should be done by the Congress of the United States under the commerce clause of the Constitution.

The judgment of the Supreme Court of Illinois is therefore reversed, and the case remanded to that court for further proceedings in conformity with this opinion.

Waite, C. J., Bradley and Gray, JJ., dissented.

MUNICIPAL CORPORATION-REGULATIONS FOR LIGHTING STREETS-GRANT OF MONOPOLY.

UNITED STATES CIRCUIT COURT, E. D. MICHIGAN, SEPTEMBER 7, 1886.

SAGINAW GAS-LIGHT Co. v. CITY OF SAGINAW. Authority "to cause the streets of a city to be lighted," and to make "reasonable regulations" with reference thereto, does not empower the city government to grant to one company the exclusive right to furnish gas for thirty years, and such right is not legally "impaired" by a subsequent contract with another company to light the streets with electricity.

IN quas a bill of the Saginaw Gas-light Company

equity. On motion for preliminary injunction.

to enjoin the city of Saginaw from entering into a contract with an electric light company to light its streets. The head-note states the point.

Wheeler & McKnight, for plaintiff.
Benton v. Hanchett, for city of Saginaw.
Perry A. Randall, for Electric Light Co.

BROWN, J. [Omitting other questions.] The general law authorizing the formation of gas-light companies, under which both the plaintiff corpo ration and the electric light company were organized, provides that (Laws 1871, § 2908) "such corporation shall have power to lay conductors, etc., with the consent of the municipal authorities of said city, town or village, under such reasonable regulations as they may prescribe." In enacting such regulations then the common council is acting under the authority of the State, and the question of their consonance with the constitutional provision above quoted is as properly cognizable in this court as if the two companies received their entire power and franchises directly from the State.

As iucident to the constitutional question, we are also at liberty to inquire whether, admitting that the common council granted an exclusive franchise to the four persons named in the resolution, it had the power to do this under its charter. Wright v. Nagle, 101 U.S. 791.

What then were the powers of the common council in this particular? The answer must be found either in the city charter, in the general law authorizing the formation of gas companies, or be inferred from the powers expressly granted in these acts. But the charter of 1867, under which the city was incorporated, at the time it granted the franchise to plaintiff, is silent upon this subject. In enumerating the powers and duties of the common council, in section 10 of this charter, no mention whatever is made of a power to light the streets; and it was not until 1871 that the act was so amended as to authorize the common council "to cause the streets, lanes and alleys to be lighted." 2 Laws, 1871, p. 424. In view of this fact, we find it difficult to see how the ordinance of 1868 can be supported.

We understand the law to be perfectly well settled, as stated by Judge Dillon in his admirable work on Municipal Corporations, § 89, that "a municipal corporation possesses and can exercise the following powers, and no others: (1) Those granted in express words; (2) those necessarily or fairly implied, or incident to the powers expressly granted; (3) those essential to the declared object and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is treated is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability not authorized thereby. All acts beyond the scope of the powers granted are void."

While lighting the streets of a city is undoubtedly greatly conducive to the comfort and convenience of its inhabitants, it is by no means indispensable to a city government, nor is it one of those incidental powers which are sometimes implied from other powers expressly conferred.

But conceding, for the purposes of the case, that the ordinance of 1871, which was passed after the act of 1871, amending the charter, had taken effect, was a recognition and adoption of the ordinance of 1868, it remains to be considered whether at this time the common council had the power to confer an exclusive franchise upon the plaintiff to light its streets with gas for thirty years. That the State, in its sovereign capacity, may grant a monopoly of this description, and that such monopolies will be protected against a

subsequent conflicting grant, has lately been settled by the Supreme Court in New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, and Louisville Gas Co. v. Citizens's Gas Co., id. 683. But whether, under a charter simply authorizing a municipal corporation "to cause its streets to be lighted," it may grant an exclusive privilege of this description, for a term of years, is a widely different question. Bearing in mind that the powers of the municipality are strictly limited by its charter, it is needful to inquire whether the grant of an exclusive franchise is a proper and reasonable method of exercising its authority to light the public streets and furnish gas to its inhabitants. We think it entirely clear that the city is not bound to manufacture and furnish the gas itself, but may contract with any individual or company for lighting the city, and as an incident thereto, may authorize the use of its streets for laying pipes and mains. Indeed, this is not only a usual and convenient mode of exercising its power, but in the general law for the organization of gas companies it is expressly provided that such corporation shall have power to lay conductors, etc., with the consent of the municipal authorities of such city, town or village, under such reasonable regulations as they may prescribe. There is here an implied, if not an express, authority for the city to contract with any corporation which may be organized under the act.

It is clear however that there is no authority expressly given to confer upon any corporation an exclusive right to occupy its streets for a number of years. It is true, it may in effect grant such exclusive right by refusing to any other company the franchise or privilege it has already granted to one; but this presupposes a continued and abiding consent on the part of the city to keep alive its contract, and is quite distinct from the right of the city to surrender its power to make another contract, and to vest in the plaintiff the right to determine for itself whether a rival company shall be permitted to enter its domain. While there is great force in plaintiff's argument that individuals would not be likely to incur the great expense of establishing gas-works and laying pipes without some assurance of a profitable and continued employment for a sufficient length of time to remunerate them for their outlay, we think the law is too well settled that this cannot be done, without express permis- | sion of the sovereign power, to be now disturbed. If a grant of this kind for thirty years may be supported, why may it not, by parity of reasoning, be upheld for a hundred years, or in perpetuity?

The common law of England declares that monopolies cannot emanate from the crown, and can only be conferred by act of Parliament (Bac. Abr., tit. "Monopoly'), and a by-law which creates a monopoly is void. Jac. Law Dict.

The great weight of authority in this country is in the same direction. Thus in Norwich Gas Co. v. Norwich City Gas Co., 25 Conn. 19, a municipal ordinance purporting to grant the exclusive privilege of laying gas pipes through the streets of a city for a period of fifteen years, was held to give the grantee no interest in the soil, and no title which would enable him to restrain another company from doing the same thing, provided it did not interfere with his works. The court went even further-beyond what we believe now to be the accepted doctrine-and held that the business of manufacturing and selling gas was an ordinary business, in respect to which the government had no exclusive prerogative, and that the Legislature itself had no power to amend the plaintiff's charter, so as to give it the exclusive privilege claimed.

We are not however without the direct authority for our proposition that nothing will be intended from a legislative grant to a manufacturing corporation.

In Minturn v. Larue, 23 How. 435, it was held that a charter authorizing the eity of Oakland to establish and regulate ferries, or to authorize the construction of the same, gave no power to the city to grant an exclusive privilege. In delivering the opinion, Mr. Justice Nelson observed: "It is a well-settled rule of construction of grants by the Legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the torms used by the Legislature must be resolved in favor of the public."

In the case of Wright v. Nagle, 101 U. S. 791, to which reference has already been made, it was held that legislative power given to an inferior body to establish ferries and bridges did not authorize such body to grant the exclusive right to one person, though there was no doubt that the Legislature itself had authority to make such a grant. The case is upon all fours with the one under consideration.

The same question was argued with great skill and thoroughness in State v. Cincinnati Gas-light and Coke Co., 18 Ohio St. 262. In this case the charter conferred on the gas company power *to manufacture and sell gas, to lay pipes," etc., provided tho consent of the city council be obtained for that purpose. Under a power given to the city council of Cincinnati "to cause said city, or any part thereof, to be lighted with oil or gas," and to levy a tax for that purpose, it contracted to invest the defendant with the full and exclusive privilege of using the streets, etc., for the purpose of lighting the city for the term of twenty-five years, and thereafter until the city should purchase the works. It was held, that while there was no doubt that the city might by contract provide for lighting by gas, there was no necessity for making such right exclusive, and that the city had no authority to make the grant.

So in Richmond Co. Gas-light Co. v. Middletown, 59 N. Y. 228, the board of the town corporation was authorized to cause the streets to be lighted with gas whenever they deemed it necessary, and required the board to contract with the plaintiff company to supply the same with gas. This was held by the Court of Appeals not to confer the power on the board to make a contract which should be binding on the town for a fixed term of years, and that the contract was terminated by the repeal of the act under which it was made.

Other analogous cases are to the same effect:

Logan v. Pyne, 43 Iowa, 524, in which an exclusive grant to one person to run omnibuses was held not to be the valid exercise of a power to "license, tax and regulate omnibuses."

Jackson County Horse R. Co. v. Rapid Transit Co., 24 Fed. Rep. 306. In this case it was held by Judge Brewer that in the absence of express authority in its charter, the city of Kansas had no power to grant to a street railway company the sole right, for the space of twenty-one years, to construct, maintain and operate their railway over and along the streets of the said city.

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The only case to which our attention has been called which points in the other direction is that of City of Newport v. Newport Light Co., 8 Ky. Law Rep. 22. In this case the charter of the Newport Light Company provided that "it might furnish any city with gas, or other lights, for such time and upon such terms as may be agree upon by the parties; " while the charter of the city of Newport empowered that municipality to construct, maintain and operate gas works, and to pass all ordinances necessary to regulate the same. It was held that under these acts a

grant to the light company of an exclusive privilege of using its streets, etc., for the purpose of laying pipes, for twenty-five years, was a valid exercise of its power. It was said, the being invested with the right to light its streets with gas, or to construct and maintain gas-works for that purpose, its right to contract under such power was unquestioned; and that, when there was a valid contract to that effect, there was no reason why it should not be enforced or governed by the same rules applicable to contracts between natural persons. We think however the court erred in treating the cases in Ohio and Connecticut as being inconsistent with the recent cases in the Supreme Court of the United States, wherein the franchises of the New Orleans and Louisville Gas Companies were upheld, and in overlooking the distinction between the grant of a monopoly by the Legislature of the State, possessing sovereign powers in that particular, and the bestowal of a like monopoly by the common council of a city, whose powers are strictly limited by its charter. We think the statement of the court, that the question was one of contract, or of the right to contract, must be taken with the qualification that the power to contract with one company is not of such a character as to deprive the city of its power to contract with another. It is the very power to contract which the city bargains away and relinquishes by the grant of a monopoly for a term of years, and this, it seems to us, it cannot do. Gale v. Kalamazoo, 23 Mich. 344; Mayor of N. Y. v. Second Ave. R., 32 N.Y. 201.

The power to contract, even in the hands of a private individual, is limited by law, and does not extend to such contracts as are against public policy, in restraint of trade or marriage, opposed to the revenue laws, or which tend to corrupt legislation. Much more is this power limited when one of the contracting parties is a corporation, with rights strictly defined by its charter. Experience has not shown that the creation of a monopoly of this description is ordinarily necessary to procure the proper lighting of a city, a proper supply of water, or the needful railway facilities for its streets. If private individuals are reluctant to undertake such enterprises, the city may either establish its own gas-works, and thus create a monopoly for the benefit of its own citizens, or procure special authority from the Legislature to enter into a contract for a definite term of years.

But conceding this franchise to have been legally granted, there is another obstacle no less formidable to the maintenance of this bill. The graut in this case is of an exclusive right "to maintain and operate gasworks, to lay gas-pipes through the streets, and to supply the city and its inhabitant with gas." It is not the exclusive privilege of lighting the city, but of lighting it with gas, that is contemplated. There is nothing to prevent the city from using oil, electricity, or any other means of illumination, except gas. At the time this ordinance was passed the employment of gas was the favorite and only effectual means of lighting a city, and it was undoubtedly supposed by both parties that it would continue to be 80. But in the progress of human science another method has been invented, which bids fair to supersede the old one, and the city may well claim that it ought not to be deprived of the benefits of the latest discoveries in that direction.

claiming that the grantee was invested with a monopoly of all forms of illumination. But these ordinan. ces evidently contemplated that some might prefer, upon the ground of economy or otherwise, to light their houses with oil or candles, and reserved the right to do so.

In this connection we are referred to a recent case decided by a Bavarian court, in relation to lighting the city of Munich, in which it seems to have been held that good faith requires that a contract by a city to have its streets lighted with gas should be extended to all forms of illumination. In delivering the opinion the learned judge observed: "There has been an effort made to lay weight on the point that the lighting of the streets with gas was conceded to the company, that this did not hinder the introduction of electric lighting, since this could take place without violating the conditions of section 4. This interpretation is entirely contrary to good faith-bona fide. But besides that, the city has bound itself for thirty-six years to have the streets lighted with gas, and must do this in fulfillment of the contract, since a contrary behavior would involve a flagrant breach of the contract. *** It is fully evident that the gas company undertook, for thirty-six years, the obligation of lighting the streets and squares of Munich with gas, and that the city is bound for the time agreed upon to allow the lighting of the city to be done by the gas company exclusively."

We cannot assent to a similar interpretation of the franchise in this case. The city does not obligate itself to take any particular quantity of gas, or to continue the exclusive employment of gas for a definite period. The contract between the city of Munich and the gas company is not set forth in the opinion, but the lauguage would indicate that the city bound itself in terms to have its streets lighted with gas. If this be so, the case differs very materially from the one under consideration, and the opinion is entitled to no weight. If there were a simple concession to the company of an exclusive privilege of lighting the city with gas, the case is undoubtedly authority for the plaintiff's contention; but in explanation, it should be observed that the civil law prevails in the kingdom of Bavaria, and by that law grants made by the sover eign are regarded with favor, and are given a large and liberal interpretation.

In Domat's Rules for the Interpretation of Laws it is said, rule 17: "The grants and gifts of the sovereign are to be favorably regarded, and to have that extension to which they are entitled from the natural pre sumption of princely liberality; provided however that they are not to be so liberally construed as to injure other individuals."

It is scarcely necessary to say, that in the jurisdiction of Anglo-Saxon communities, gifts of the sover eign are treated with less consideration, and a totally different rule of interpretation obtains. Nothing is better settled than that statutes creating monopolies, granting franchises, and charters of incorporation, must be construed liberally in favor of the public, and strictly as against the grantee. Monopolies are justly regarded as encroachments upon the natural rights of the people, and are viewed with jealousy by courts. Whatever is not equivocally granted in such act is taken to have been withheld. All acts of corporation, and acts extending the privileges of incorporated bodies, are to be taken most strongly against the compan ies. Sedg. St. Law, 339.

Suppose, before the employment of gas as an illuminator, a city had contracted with an individual to light its streets with oil for fifty years, would it not In regard to the right of franchises, it is said by the be a hardship to claim that it was thereby debarred of Supreme Court that where the grant is designed by availing itself of the latter invention? We think it the sovereign power to be a general benefit and acwould require the most unequivocal language to justify commodation to the public, if the meaning of the this interpretation. Had the contract been for light-words be doubtful, they shall be taken most strongly ing the city generally, there would be plausibility in against the grantee and for the government, and

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therefore the grant is not to be extended, by implication, in favor of the grantee, beyond the obvious and natural meaning of the words employed. Other authorities, putting it sententiously, say that a doubt is fatal to a grant. Thus where an act of Parliament imposed a penalty on all but freemen of the Waterman's Company, for navigating any wherry, lighter, or other craft, on the Thames, it was held that a steam-tug was not within the description and prohibition of the act. "A corporation is strictly limited to the exercise of those powers which are specially conferred upon it. The exercise of a corporate franchise, being restrictive of individual rights, cannot be extended beyond the letter and the spirit of the act of incorporation." Beaty v. Lessee of Knowler, 4 Pet. 152, 168.

But it is useless to multiply authorities in support of this proposition. The general principle is too firmly established to admit of argument. Its application to this case, we think, is entirely clear. The plaintiff took nothing by its franchise but the privilege of lighting the streets with gas, and this it will continue to enjoy so far as its patrons prefer the use of gas to electricity. But its claim to the exclusive privilege of lighting the city by all methods of illumination cannot be supported upon legal principles, and the injunc

tion must therefore be denied.

[See City of East St. Louis v. East St. Louis Gas-light and Coke Co., 98 Ill. 415; S. C., 38 Am. Rep. 97.-ED.]

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PARTY IN INTEREST.

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ASSESSMENT -ILLEGAL Money paid to prevent the enforcement of an illegal assessment may be recovered back as so much money received by the defendant for the use of the party paying the same. Legal ownership of the assessed property is not essential in the proceedings to reduce an assessment. That right is conferred upon any person aggrieved thereby. And the right of restitution extends not only to the person in whose name the proceedings were taken, but to every one in whose behalf they were instituted. Oct. 5, 1886. Schultz v. Mayor, etc., of New York. Opinion by Danforth, J. ASSIGNMENT-MONEYS TO BECOME DUE.-An assignment of money to become due under a contract which is subsequently abandoned by the assignor, before the money is earned, can have no binding effect upon one who goes on and completes the work under a new agreement with the parties requiring it to be performed. Oct. 5, 1886. Conselyea v. Blanchard. Opinion by Earl, J.

CREDITOR'S ACTION-EXECUTION-EXECUTORS AND ADMINISTRATORS.-The real estate which belonged to a deceased person cannot be sold on an execution issued upon a judgment against his executors or administrators; and no execution can be issued on such a judgment which will reach the deceased's real estate. The law impounds the estate of a deceased person for the benefit of all his creditors, and no creditor can in any way obtain preference over others. Therefore a creditor's action cannot be maintained by a judgment creditor upon a judgment recovered against the exec

utors or administrators of a deceased person, to set aside as fraudulent a conveyance of real estate made by the deceased in his life-time. Such an action must be made by the executors or administrators for the benefit of the estate. Oct. 5, 1886. Lichtenberg v. Herdtfelder. Opinion by Earl, J.

EMINENT DOMAIN-FOREIGN CORPORATION—“ PUBLIC USE."-The mere fact that the land proposed to be taken for a public use is not needed for the present and immediate purposes of the petitioning party is not necessarily a defense to a proceeding to condemn it. (2) Where such use is not required for the purpose of the local traffic of the petitioning railroad company, but for the purpose of enabling it to fulfill the obligations of a contract made with a foreign railroad company, whereby it has bound itself to furnish to such company accommodations over its road, the object for which the land is sought will be deemed a public use. Oct. 5, 1886. Application of Staten Island, etc., R. Co. to Acquire Lands. Opinion by Ruger, C. J. LANDLORD AND TENANT-JOINT LEASE-LIABILITY FOR RENT-STATUTE OF LIMITATIONS - CODE CIV.

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PROC., § 1937.-The joint liability of one of two principals in a lease, and the separate liability of his estate

for the rent reserved in the lease, is not discharged by the death of such lessee. Under section 1937 of the

Code, permitting a defendant who was not served to be charged with a judgment recovered in the original action, the action is not barred by the statute of limitations so long as the original judgment remains in force. Oct. 5, 1886. Long v. Stafford. Opinion by Earl, J.

MASTER AND SERVANT — NEGLIGENCE-DEFECTIVE BOILER-INJURY FROM.-Defendants purchased a new engine boiler, and after using it a few months discovered certain defects in it. They notified the vendors, who had guaranteed the boiler, of the fact, and they sent two boiler-makers, one of them the plaintiff's intestate, to defendants' shops to make the necessary repairs and test the boiler. After the repairs had been substantially completed, defendants' engineer,

who was assisting the boiler-makers, but at whose request did not appear, fired up the engine and let the steam into the boiler, when it exploded, killing plaintiff's testate and all others in the room. There was no evidence that defendants had any knowledge of any latent defect in the boiler rendering it dangerous, and the proof failed to show with any certainty what caused the accident. In an action against the defendants to recover for the killing of plaintiff's intestate, held, that the action could not be maintained. Oct. 5, 1886. Olive v. Whitney Marble Company. Opinion by Earl, J.

PARTNERSHIP-AMENDMENT OF PLEADINGS.-Plaintiff sought to hold the defendants for the price of the goods in question, which he had sold to a certain firm, upon the ground that defendants were copartners in the firm, and this was the whole theory of the complaint. Upon the trial evidence was given of a conversation between plaintiff and defendants in regard to the sale of the goods before they were actually delivered. The court charged the jury, that upon the evidence, they might hold the defendants liable as purchasers, independent of the question of partnership. Held, error; that without an amendment of the pleadings, the question of defendants' liability as purchasers could not be submitted to the jury. Oct. 5, 1886. McLewee v. Hall. Opinion by Finch, J.

PAYMENT-TO ONE NOT AGENT.-Payment of the principal of a mortgage to one who is not in fact the mortgagee's agent for the purpose of receiving the same, and who has not the bond and mortgage, will not discharge the debt. Oct. 5, 1886. Maguire v. Selden. Opinion by Danforth, J.

WILL-HOLOGRAPH-PUBLICATION-FORMER TRIAL -REVOCATION.-In the case of a holographic will, criticism of the terms and manner of what is claimed to have been a sufficient publication need not be so close or severe as where the question whether the testator knew that he was executing a will depends solely upon the fact of publication. A substantial compliance with the statute in regard to the publication of a will is sufficient. The testatrix had executed a previous will which could not be found at the time the will in question was offered for probate, and circumstances indicated that she had never revoked or intended to revoke the first will. The will offered for probate contained the following provision: "I leave and'bequeath to my niece, Alice Blair, all the money I die possessed of in several banks and bonds, besides all I bequeathed to her in my former will." Held, that this bequest was sufficiently certain, standing alone, to become operative, notwithstanding the provisions contained in the first will were unknown. Oct. 5, 1886. In re Will of Beckett. Opinion by Finch, J.

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

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or obtaining security for his debt from a failing debtor, or to disturb the uniform holdings of this court in that respect. "Are all the creditors who bave been honestly paid or arranged with to be prosecuted, and the amounts they received to be recovered back, although they had known nothing of the debtor's insolvency, or of his ultimate designs, and dealt with that the debtor should have the power at any time afhim honestly and fairly?" "Did the statute intend terward to annul and make them all constructively fraudulent or void by the single act of carrying into effect a purpose contemplated before, but concealed Brown, 26 N. J. Law, 439. I think not. Whatever the from them, of making an assignment?" Garretson v. rule may be as to one having knowledge both of the insolvency and intended assignment, which it is not necessary to determine here, certainly one innocent of any intended wrong on the part of the debtor has a legal right to secure his claim by pressing, or to ac cept without the asking, payment or security of a just debt. Heineman v. Hart, 55 Mich. 76; Root v. Potter, 26 N. W. Rep. 682; Garretson v. Brown, 26 N. J. Law, 425; Nelson v. Gary, 19 N. W. Rep. 630. Mich. Sup. Ct., Oct. 7, 1886. Sweetser v. Camp. Opinion by Morse, J.

ATTORNEY AND COUNSELLOR-CONTRACT-SETTLEMENT OF CAUSE BY PARTIES-LIEN.-Where in an action for the recovery of real estate, the plaintiff and his attorneys entered into a contract by which the attorneys agreed to receive as their compensation a part of the property recovered in the action, and the plaintiff, pending the litigation, settled the case with defendants to his satisfaction-there being no attor ney's lien for fees-it was held that the attorneys could not intervene to continue the suit by virtue alone of their contract with their client. What the rights of counsel may be in the case it is not necessary here to discuss. It is only necessary to say that Lavender and defendants having settled their dispute, the case is at an end, and the litigation in that suit cannot be continued. It is true that plaintiff's attorneys had a contract with him, which, had the suit been carried to its ultimate result, might have been of an advanta geous character to them, but they cannot litigate their rights in this action. If the contract gave them any

the proper suit. They cannot prosecute the appeal in this action. No question of attorney's lien' arises. No effort was made to comply with the provisions of the statute concerning such lien. Whatever rights Lavender's attorneys may have against the defendants, if any, arise solely upon their contract, and cannot be litigated in this proceeding. Neb. Sup. Ct., Oct. 6, 1886. Lavender v. Atkins. Opinion by Reese, J.

ASSIGNMENT FOR CREDITORS-CHATTEL MORTGAGE -CREDITORS' BILL.-(1) Where an insolvent firm makes an assignment of their stock for the benefit of creditors, and have made an unlawful preference by a fraudulent mortgage beforehand, in contemplation of insolvency, a bill to set aside the mortgage must be brought in the name of the assignee, and not in the name of the creditors. If the assignee refuses to move, or if he be interested in the mortgage, the creditors, upon a proper petition, may obtain leave to file such a bill for themselves. The policy of allowing any creditor, or perhaps a dozen or more of them, to file bills, at great cost and expense to the insolvent estate, to redress real or fancied frauds, not discernible in the assignment itself, and with which the assignee is in no way connected, is not desirable, and is not favored by the letter or spirit of the statute. The assignee is supposed to be the trustee of all the creditors, and so long as his competency or integrity is not attacked, it is much better in all respects that he, act-rights as against defendants, it must be enforced in ing under the advice and control of the court, control and manage the property of the insolvent, and the litigation, if any is necessary, to obtain full possession of all the debtor's property, and to subject it to uses and purposes of his trust. (2) The question then arises, granted that Camp and Morrill, at the time these notes and this mortgage to Higby were executed, contemplated assignment in the near future, what effect would the intention to make a general assignment have upon securities made and delivered before such assignment to good-faith creditors, taking the same in payment, or as security of the payment, of just and valid debts, without knowledge of such intention? It has always been held in this State that a creditor has a right to obtain payment or security in full for his claim against a failing debtor, even though the creditor may know that the debtor is insolvent. He may also be aware of the fact that the effect of the payment or security to him will hinder and delay, or even defeat, other creditors in the collection of their just claims, and yet such knowledge will not avoid or impair his security taken for an honest preceding indebtedness. Olmstead v. Mattison, 45 Mich. 617; Beurmann v. Van Buren, 44 id. 496; Loomis v. Smith, 37 id. 595; Jordan v. White, 38 id. 253; State Bank v. Chapelle, 40 id. 447. It is not to be considered, in my opinion, that the assignment act was intended to prevent a diligent creditor from securing his pay in full,

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CARRIER-NEGLIGENCE-STREET RAILWAY-PASSENrailway car, was about to get off the car. There were GERS-ICE ON PLATFORM.-A., a passenger on a street passengers on the platform, although there was plenty hold of the dasher, but could not do so owing to the of room inside the car, and A. endeavored to catch presence of the passengers on the platform. In alighting, her foot slipped on on the step of the platform by a the previous night, and she fell and was injured. The court entered a nonsuit. Held, to be error, and there was evidence of negligence on the part of the defendant sufficient to take the case to the jury. It may not be negligence per se to permit passengers to stand on persons getting in and out of the car, and to ladies the platform, yet it is frequently very annoying to all especially offensive. If in this case the defendant permitted a passenger to remain standing on a platform reasonable support which would have protected her in such a position as to deprive the plaintiff of that

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