in equity, of requiring notice to the suspected parties in all cases, except in extraordinary instances of some imminent danger, and of requiring a special application to be made for the injunction upon a recognized ground for such an equitable remedy. The statute simply says, "if it shall appear that sufficient grounds exist therefor," the court may enjoin, etc. This can mean nothing else than that the appropriate legal foundation for such a purely equitable remedy shall be laid, and that it shall be properly applied for.

This foundation should be laid; this application made by petition, specially setting forth the grounds and the parties to be enjoined, and compelling the latter, if not heard in the first instance, to come into court and answer the petition against them, or submit to be enjoined until the end of the proceedings; and the enjoined should invariably be protected by fair security against unjust damage to them by reason of the injunction, unless such security is by them in terms waived.

It is not every district court that is as accessible to its constituencies as that of the southern district of New York; and a sharp injunction issued on ill-considered grounds in one part of the district might operate to create a lasting injury to a resident of a remote locality before any relief can be afforded, were any other rule established than the simple course here indicated. This is a practical answer to the suggestions in many reported cases, that the enjoined cannot suffer by being without notice and summarily enjoined, as they may at once move to dissolve.

The power to enjoin, given by section 40, is purely a statutory power. Although the remedy is equitable in its nature, its source is not the inherent power of the court as a court of equity. A bankrupt court is often called a court of equity. In some respect it may be; but because it may, at times, exercise powers similar to an equity court does not, ipso facto, make it proper to call a bankruptcy court a court of equity. We might as well call a court of equity a bankruptcy court, because it sometimes entertains questions in bankruptcy. No; the source of jurisdiction of one is the language of a statute; while that of the other is the recognized jurisdiction of equity. This distinction should be broadly marked, for the exercise of a judicial discretion in equity, according to precedents and recognized law, is quite a different thing from the performance of an act by a judge in terms made his duty by statute.

The conclusion from this is, that the court must follow the statute and look only to the principles of equity to guide them in its interpretation and operation, and not to look at equity law as the source of its jurisdiction, with the statute to point out a pretext for invoking it. There is, on the contrary, no equitable jurisdiction whatever residing in the district court, except where the statute has permitted the assignee to bring in the district court a suit in equity to enforce his rights.

But this permission did not confer a general jurisdiction in equity, any more than reposing certain authority in bankruptcy cases upon the English chancellor vested him with an equity jurisdiction. The chancellor had no jurisdiction in bankruptcy, except from the statute. The jurisdiction in bankruptcy was perfectly distinct from the jurisdiction in chancery (6 Ves. 781; see In re Morris, Crabbe, 89, 90, 98); and when the chancellor used his equity powers to enforce a proceeding in bankruptcy, it was upon a proper, original application in the chancery court, specially invoking its extraordinary powers, just as from time immemorial chancery had been called upon to assist in the enforcement of judgments at law.

Lord Eldon said (1815): "In bankruptcy the Lord Chancellor exercises, more by habit and practice than authority, both a legal and equitable jurisdiction. ** Upon the statutes and the decisions in bankruptcy it is obvious that no authority is given by these statutes for a great part of the jurisdiction actually exercised." 19 Ves. 469. The same thing may be true under the administration of the United States bankrupt law; but, if so, it is an unnecessary truth. All the purposes of the United States law can be accomplished without making law by the "habits and practices" of as many different judges as there are districts. Our law is specific, and so are all proceedings under it. All jurisdiction under it is limited and defined by statute, capable of accurate estimation, and to be exercised according to established standards.

The statutory power, then, under section 40 to enjoin "other persons," is to be used only as the power to enjoin is exercised in equity, viz.: There should always be a petition, or affidavit, or both, showing sufficient ground for the special injunction asked for; that no other relief is adequate to the case, or that irreparable damage will otherwise ensue, etc., and the parties sought to be enjoined should be brought into court to be heard as to whether the injunction should issue or continue until the proper legal steps can be taken to secure and determine by a judgment the rights of the creditors alleged to exist against

them.

III. The third class of injunctions are those which may be issued in a suit in equity brought by the assignee in bankruptcy to realize assets of the estate which of right belong to the creditors, and can be arrived at in no other way. These suits may be brought either in the circuit court in equity or in the district court sitting in equity under its special jurisdiction of suits at law or in equity brought by assignees in bankruptcy. Sec. 1, Bank. Act. The same principles as to injunctions of course here apply as in any other suit in equity, and no special consideration need be given to the fact that the plaintiff is an assignee in bankruptcy unless the suit is brought to establish rights of action which exist only by virtue of the act itself, e. g., to recover property or proceeds alleged to have been conveyed or disposed of in fraud

of the statute. This topic pursued further leads to some general considerations as to this class of suits or actions, and their increasing frequency and commercial importance may be of sufficient interest to warrant a continuation of this subject at another time.

CURRENT TOPICS.

It was remarked long ago that power is always at war with its own boundaries, and the truth of the remark is abundantly illustrated by the constant attempts of one branch of government to overstep or encroach upon the peculiar functions of another. The legislative department has been particularly given to this sort of encroachment, especially upon the authority of the judiciary. The latest case of the kind that has come under our observation is set forth in Simonds v. Simonds, 103 Mass. 572, where the legislature of Maine undertook, by special act, to confer authority on the supreme court of the State to grant a divorce in a case over which the court had no jurisdiction. The divorce was granted, and, on the application of the other party to the Massachusetts court for a divorce, the Maine divorce was held to be illegal and void on the ground that the legislature of that State had no power to confer jurisdiction in the case on its courts. The underlying principle is, that a legislative body cannot enact a special law, or pass a resolve, dispensing with the general law in a particular case, and granting a privilege and indulgence to one man by way of exemption from the operations and effect of such general law, leaving all other persons under its operation. Had the divorce been a legislative act it would have been valid, the court not having jurisdiction; but being by judicial decree under the authority of a special statute, applying to a single case, it was clearly a violation of the above principle, and therefore void.

It is absolutely necessary that the American Law Review "rise to explain." In commenting on an article in an English contemporary about "Alcoholism among the lawyers," the Review stated among other things that "in America all lawyers drink; very few are sober after ten o'clock in the morning." "Lawyers like other men drink whisky, and for that purpose a hogshead is kept in every practitioner's safe." "For conveyancers, however, the register of deeds keeps a supply." Formerly in Massachusetts no contract was considered valid in the profession unless it had been, to use the term then in vogue, 'ratified.' Ratification consisted of a solemn drink, inter partes, participated in by the attorneys;" and much more of the same sort. The London Law Times quotes the remarks, and, with a solemnity that does it credit, admires "the candor of the Americans." The Solicitors' Journal inquires "what can this mean?" doubts if it be really true, and, with a solemnity quite as refreshing, says, the paragraph in our transatlantic

contemporary's pages, if not intended as a hoax, must have been written after ten A. M. by an unfortunate specimen in a mood of generalization."

Legal business in England appears to be on the decline, while we may presume the legal profession is on the increase in point of numbers. The number of writs issued out of the three superior courts of common law in 1860 was 97,568; in 1869, 81,778; and in 1870, 72,660, showing a decline in one year, at the rate of eleven per cent and, in ten years, at the rate of twenty-five per cent. Our English contemporaries adhere to the opinion that the main object and result of modern legislation has been to work the ruin of the bar.

The Troy Whig, in a criticism upon an article appearing in our last number, entitled "Trial by jury in civil actions," sees fit to intimate that our knowledge of the character and intelligence of juries in feudal times is very limited, especially as to juries in existence as late as George III. It remarks:

"We think the editor must have failed to inform himself upon the character and intelligence of the jurors in feudal times, and in times as late, at least, as the days of George the Third. Our acquaintance with seldom acted on its own judgment, but generally folEnglish history would lead us to believe that a jury

lowed the direction of the court. If he will refer to the trial of Woodfall and other publishers of the letters of Junius, he will find that Lord Mansfield actually held that jurors could try only the fact of publication and not the criminality of the offense. The jurors were more honest than the great judge, whom lawyers are fond of calling the greatest ornament to the English bar, for they acquitted the prisoners in spite of Lord Mansfield's charge. But jurors were not often so bold, and we attribute their independence to their intelligence and the superior intelligence of modern times."

What we claimed was, that jurors were in ancient days more intelligent in proportion to the rest of the community than they are now. The Whig admits that the jury who tried the publishers of the letters of Junius knew enough to disregard the law laid down by a judge who had, at least, the reputation of understanding the law. But the writer of the editorial in the Whig is certainly familiar enough with the way business is done in courts to know how American juries are selected. And even with any selection he knows that a railway corporation does not come before them with a fair chance of a just judgment, if the person with whom it is in litigation pleads poverty or happens to be a woman. The Whig states that all the cases we have referred to are of a kind which sound in tort. If this kind of cases are taken from juries we are confident that very few of other kinds will be taken before them. As a lawyer remarked to us to-day: "If a client of mine is certainly right I prefer to submit the case to the court." The verdicts of juries are, and the whole legal profession know it, in almost every instance influenced by prejudice. The

DIGEST OF RECENT AMERICAN DECISIONS. SUPREME JUDICIAL COURT OF MASSACHUSETS." * ABORTION.

On the trial of an indictment for producing a miscarriage of A., it is competent for the commonwealth to prove that, before leaving her home and submitting to the operation which caused the miscarriage, A. knew that her mother had had an interview with the defendant, in which the mother had said that A. was pregnant and was going somewhere to get rid of her child, and the defendant had replied: "Send her to me," and added that he had operated successfully five times on one person. Commonwealth v. Holmes, 440.

ACTION.

1. The holders of a bill of sale of a vessel, absolute on its face, though intended as a mortgage, may maintain an action for her conversion against a person claiming under a barratrous sale by the master; although on learning of the barratry, they abandoned her to the insurers, and received payment from them as on a total loss. Clark v. Wilson, 219.

2. A person who had received goods from the owner, with the right to use them and to become owner of them on fulfillment of certain conditions, among which were that he should not sell or remove them from a certain place without the owner's consent, and that they should not become his till paid for, sold them to a third person, who removed and resold them. Held, that the third person was liable to the owner of the goods for their conversion, although he had acted in good faith, and had parted with them before any demand upon him. Carter v. Kingham, 517.

ATTORNEY AND COUNSEL.

1. An attorney retained in a suit is entitled to a reasonable retainer without any special contract therefor. Aldrich v. Brown, 527.

2. If by their client's authority attorneys have retained counsel, and promised to pay him out of the proceeds of the suit, and he holds them responsible under this agreement, and the proceeds of the suit have come to their hands, it is too late for the client to forbid them to pay the counsel. Ib.

3. On an issue between the attorney and client of the value of the former's services in a suit in which the latter was plaintiff, and which was settled without a trial, the opinion of the counsel of the defendant in such suit, that the plaintiff therein had no cause, is competent evidence. Ib.

4. An attorney has no such lien in a cause before judgment as to prevent his client from settling the action with the opposite party without his consent or knowledge. Simmons v. Almy, 33.

BANKRUPT.

By an adjudication of bankruptcy under the bankrupt act (U. S. St. 1867, c. 176), even when the proceedings were begun on the debtor's voluntary petition, his property becomes exempt from subsequent attachment in mesne process. Williams v. Merritt, 184.

BRIDGE.

The right of the commonwealth to widen the draw in a bridge belonging to it, over a navigable stream, is not impaired by the fact that the widening will temporarily interrupt the use of the street railway of a cor

*From 103 Mess.

poration, to which it has granted a right to run cars over the bridge. Middlesex Railroad Co. v. Wakefield,

261.

BROKER.

1. The order of a customer to a broker to buy stock, deliverable at any time, at buyer's option, in sixty days, does not authorize the broker to buy the stock himself at thirty days, and deliver it to his customer at the end of sixty days at an increased price and interest, besides the usual commission; and the usage of brokers to do so is bad; nor is the exchange of bought and sold rates between the broker and his customer, nor the giving of his note by the customer in payment for the stock in ignorance of the broker's conduct, a ratification of his acts. Day v. Holmes, 306. 2. Brokers having been ordered by a person to buy stock for him, bought and paid for it, took the certificate in their own name, offered to transfer the certificate to him, and demanded payment, but he neglected to pay. Held, that they could recover from him the price paid by them, and not merely the difference between that price and the market value of the stock ou the day of their demand. Giddings v. Sears, 311.

3. A broker employed to purchase stock, contracted for it in his own name with J. S., who owned it at the time, but had made a prior contract for its sale. The employer, for groundless reasons, repudiated the contract; but the broker having no knowledge of, or reason to suspect, the prior sale by J. S., paid for the stock when tendered to him. Held, that the general statutes (chap. 105, § 6), making void contracts for the sale of stocks not owned by the seller, did not debar the broker from recovering from his employer the amount so paid. Brown v. Phelps, 313.

CONSTABLE.

1. An action cannot be maintained upon a constable's official bond, on proof of a judgment against him in a suit for official misconduct, without evidence of a demand upon him to pay the amount of the judgment. Tracy v. Merrill, 280.

2. To an action against a constable for breach of his official bond, a judgment in his favor in a former action on the bond for the same breach, is not a bar, if it appears from the record that it may have been rendered for want of a sufficient demand upon him, which has since been made. Ib.

3. A person injured by the breach of the condition of a bond, given by a constable to the treasurer of Boston, under statute 1860, chap. 147, may sue thereon in the name of the treasurer. Ib.

CONTRACT.

Under an agreement to sell and convey land with a good title, the purchaser is not entitled to a warranty deed. Kyle v. Kavanagh, 356.

DEED.

1. If the owner of a mill and dam with a water privilege conveys the same by a deed referring to his grantor's deed for a specification of the privilege, the privilege which he conveys must be measured by his grantor's deed and not by the use he is actually making of the water, at the time of his conveyance. Perry v. Binney, 156.

2. After signing and acknowledging a deed of land containing a covenant that the grantor, or his executors or administrators, should pay a sum of money to the grantee, the grantor delivered it to a third person for the grantee, and this person so received it from the

grantor, and kept it till delivered by him to the grantee after the grantor's death, which occurred two days after said execution of the deed. Held, that the estate vested in the grantee, and the covenant became binding on the grantor, upon the delivery of the deed to the third person, although he was not employed by the grantee to receive it for him; and that the consideration of it was not open to inquiry. Mather v. Corliss, 568.

DEVISE OF LEGACY.

1. A testator directed his executors to procure a residence for a married daughter, at an expense not exceeding a certain sum, and hold the same in trust for her and her son "during their lives," and "upon the decease of both" gave the property over. The daughter died, and the testator made a codicil reciting her death and increasing the bequest made to her husband, but expressly confirming the will. Held, that the gift did not lapse by the daughter's death, but went to her son for life. Dow v. Doyle, 489.

2. A testator gave "the improvement" of a lot of land to his wife "so long as she shall occupy the same, free of rent, she remaining my widow." "But should my wife marry again, and improve and occupy the estate above mentioned, she shall do so so long as she shall annually pay to my sister $300; and should my wife at any time abandon the occupancy of the estate aforesaid, then I give and devise the same" to trustees in trust "to dispose of said estate and invest the moneys received from the sale of the same in stocks, or place the same securities at interest, and annually, or more frequently if the dividends accrue and be paid more frequently, pay the same to my wife and sister in equal proportions.' After other gifts, he gave the residence of all his estate to his wife, sister and brother in equal shares; the wife abandoned the occupancy, and the trustees sold the land and invested the proceeds. Held, that on the wife's death, the trust terminated, and the principal of the fund, with all after accrued income, went under the residuary clause; and. that, the interest under that clause being vested, the wife's share passed under the will. Mayhew v. Godfrey, 290.

DIVORCE.

1. A special statute of the State of Maine, authorizing the supreme judicial court of that State, in its discretion, to decree a divorce between individuals named, is unconstitutional, as granting a special indulgence by way of exemption from the general law. Simonds v. Simonds, 570.

2. Proof that a husband and wife lived at the same time in this commonwealth, but without cohabiting, or having any communication with each other, is not proof that they "lived together as man and wife" here, within the meaning of the Gen. Sts. c. 107, § 12, specifying requirements of residence to give jurisdiction of libels for divorce. Schrow v. Schrow, 574.

3. Proof that a husband, intentionally and against his wife's consent, has for five years abandoned all matrimonial intercourse and companionship with her, and denied her the protection of his home, will sustain her libel for a divorce from the bond of matrimony on the ground of his desertion; and it is immaterial that during the period he has regularly contributed money, and from time to time necessaries, toward supporting the wife and their children. Magrath v. Magrath, 577.

EVIDENCE.

1. On the trial of a shopkeeper for receiving stolen goods, evidence of what kind of business he carried on

at his shop is admissible, although it does not appear that the goods were ever in the shop. Commonwealth v. Campbell, 436.

2. Whenever evidence of the condition of clothes is competent and material, their condition may be described by witnesses, without producing the articles themselves. Commonwealth v. Pope, 440.

3. The correspondence between boots and foot-prints is a subject to which any one who has seen both may testify. Ib."

4. To prove how high the water has been raised in a mill-dam, it is competent to refer to marks not only in the channel, but on the bank, or any other place to which the water has flowed. Perry v. Binney, 156.

FRAUDS, STATUTE OF.

An oral promise to make a will of all the testator's property, real and personal, in favor of a person who, in consideration thereof, agrees to make a similar will in favor of the first testator, and makes one accordingly, is a contract for the sale of lands, within the statute of frauds. (Gen. Stat. ch. 105, §1.) Gould v. Mansfield, 408.

HUSBAND AND WIFE.

1. At the trial of a married woman for an assault committed in the immediate presence of her husband, the defendant asked the judge to instruct the jury that she was presumed to act under her husband's control; but the judge refused, and instructed them that, if they were satisfied that she did the acts proved, of her own free will, free from coercion or influence of her husband, they would be warranted in convicting her. Held, that the refusal to give the instruction asked for was erroneous. Commonwealth v. Eagan, 71. 2. A promissory note, given by a wife to the builder, for the price of a barn already built upon her land, is invalid in his hands, for want of a sufficient consideration, if the barn was built by the order, and on the account and credit, of her husband; but valid, if, in the transaction, the husband was acting as her agent, and the credit was given to her. Morse v. Mason, 560.

INFORMATION.

An information in the nature of a quo warranto will not lie against a municipal corporation to enforce performance of a duty imposed on it by law. Attorney General v. Salem, 138.

INSANE PERSON.

On an issue whether a deed for the benefit of B., signed by A., was executed while A. was insane, and under the undue influence of B., a witness testified, that, shortly before the time the deed was executed, an attorney, whom B. had asked to make a deed in his favor, for A. to sign, after talking with A., in the presence of B. and the witness, told B. that A. was not competent to execute any paper; that B. gave the attorney a nudge, and told him to go ahead and it would be all right, and that the attorney refused, -Held, that the evidence was admissible. Brooks v. Tarbell, 496.

INSURANCE.

A policy of life insurance which provides that it shall not be in force until countersigned by "A. B., Agent," is invalid till so countersigned, although A. B. is himself the assured, and the policy has been received and retained by him. Badger v. American Popular Insurance Co., 244.

THE COMPENSATIONS OF THE BAR.

[From an Address by E. E. HALE.]

I hope the American lawyer understands the same truth, that, unless he deals with infinite values, his profession is a handicraft, and his duty a job. Unless he deals with justice, pure as heaven,-unless he deals with truth, virgin as truth was born,-there is for him no ermine. These States, in our organization of society, have given to the men of his calling distinguished position, have shielded them by privilege else wholly unknown; they are exempt from many of the burdens of other life, and see open to them its highest honors. This is because they are pledged in their very training, and by their oaths of office are sworn, to obtain justice for all men, and for the State. The American lawyer ought not to forget the traditions of his profession. The Templars of England, through whose hands come down to him the methods of the past, are the direct descendants of templars bound to the service of chivalry. The only fee which he receives is in form an "honorarium," not the pay for service. The service is the unbought service of the king of truth and of right. He goes forth on his circuit, such is the theory of his profession, with the same determination to protect the right and to crush the wrong which sent out Lancelot or Arthur. Who needs his help? Is it this poor boy, arraigned for murder by a mad mob, because he is of another color than theirs, and they will wreak on him the wrath of centuries? Or is it some child of luxury, born in the purple, who has smiles and honors and gold for her minions? He does his best, be it for the one or for the other; ferrets out conspiracy; seizes truth, though truth be hiding her face in tears; and compels the tribunal to decide rightly! The moment that the American lawyer abandons this position, the moment that he sells justice, or the share of justice that his services can command, to the highest bidder; the moment he says that the ring which can spend millions shall have millions' worth, while the beggar with a penny shall have penny's worth,-in such words of blasphemy he shows he has no knowledge of what justice is. He abandons the position of one who deals with infinite realities. He has left, as one unfit, the ranks of a liberal calling. He makes himself a mere craftsman, dealing with things alone, and to be recompensed with things alone. Leave him to the company he deserves! - From Old and New for October.

THE RELIGIOUS EDUCATION OF CHILDREN. In the case of Hawksworth v. Hawksworth, recently decided in the English court of chancery (25 L. T. Rep. [N. S.] 116), it is very emphatically declared that in the education of a child the religious tenets of the deceased father should be inculcated in preference to those of the living mother. In delivering the opinion of the court, Lord Justice James said:

"The child was a child of a Roman Catholic father, who, shortly before his death, had the child baptized in his own church, with, of course, Roman Catholic sponsors. He had other children, all of whom had been brought up as Roman Catholics. There is not the slightest trace of any indifference on the part of the father to the religious education of his child. There is nothing to show that he would have acquiesced in the child being brought up as a Protestant if he had been living. The rule of this court, a rule of the highest morality, is, that where the court, or where