the land, that the defence of "purchaser of this character to operate only for his without notice" is not available at law. own personal benefit, and not for that In a recent case in Massachusetts, of the land retained by him. Why which arose on a restriction contained should he? As it to that extent deprein a conveyance of a building lot, against ciates in value what he is selling, it is the use of the premises for any nauseous equivalent to so much purchase-money or offensive trade, the later English retained; and it would be a foolish bardoctrine was expressly followed and gain, indeed, to sacrifice a distinct, applied: Whitney vs. Union Railway present advantage, for the chance of Co., 23 Bost. L. R. 401. being bought off for a small sum at a The language future day, when he has parted with of the learned judge who delivered the his interest. Nor is it more reasonable opinion of the court, places the matter to suppose that such a remote continin its true light, and sustains such regency enters into the calculation of the strictions in equity against purchasers vendee, particularly as it is quite prowith notice. But a later case of Badger bable that, if it should ever happen, it vs. Boardman, 24 Bost. L. R. 303, which would enure to the benefit of some was also in equity, is not so satisfactory, grantee of his own, not to himself. and shows a tendency to return to the And it would be equally foolish for him old common law doctrines. There a to add to his purchase-money upon so grantor conveyed part of a larger lot of fragile a hope. To import such a ground, with a restriction against erect- meaning into a contract of this nature, ing any building thereon above a certain would turn it so far into a mere aleatory height. This was held to be a purely one, the more to be discouraged, because personal covenant, and not to pass to an it would tend to mislead and injure subassignee of the remaining land, there purchasers of the grantor. A Court of being, in the opinion of the court, no Equity, therefore, applying the covelanguage in the deeds under which the nant or condition to the facts of the parties claimed from which it could be case, and not merely parsing the words fairly inferred that this restriction was in which it is expressed, as the old comintended to enure to the benefit of the mon law judges did, must presume that estate owned by the plaintiffs, who as it was stipulated by the grantor, for the assignees were seeking to enforce the benefit of his adjoining property. This being so, it would pass, on a sale of the latter, to the purchaser, without any express words in the conveyance, as a mere equitable incident or appurtenance, as, indeed, all subsidiary rights. easements, or privileges connected with property necessarily do, if nothing is said to the contrary. Covenant. This last decision, as it is in conflict with that which is the occasion of this note, and at variance with the views therein expressed, perhaps requires a few words of respectful comment. There may have been something in the facts of the case, which would justify the conclusion arrived at; but it would seem to us, with great deference, that the argument, from the silence of the deeds on the subject, ought to have been reversed. It is not reasonable to suppose that a grantor, unless he says eo in express terms, means a restriction Having now sketched the history and development of the doctrine of courts of equity on the general subject of the principal case, there are some observations on its practical operation, and the limits within which it ought to be confined, which it would be desirable to make, as it is obvious, if not carefully guarded, it might hereafter lead to some inconvenient consequences; but we have not sufficient space for the purpose. There is one suggestion, however, which we may throw out in conclusion, for what it may be worth. The common law rule, as corrected by the statute of 32 Henry VIII., confined the assignability of covenants with a grantor of land, to cases where he had some reversionary title left in himself. There is no doubt that there was much practical wisdom in this, for if burthens on real estate, perhaps capriciously or foolishly created, could be enforced in perpetuum, in favor of persons who had no interest to be protected or advantaged thereby, the inconvenience and detriment to the community at large would be very great. But the older lawyers looked on a piece of land only as an isolated fact, subdivisible, in point of ownership, into particular estates, with a reversion remainder, but having no definite juridical relation with any other piece of land. At the present day, in a more complicated organization of society, it often happens that a man who sells a small lot of land out of a larger one, has as great an interest to protect in that which remains in him, as he could have upon any technical reversion; much greater, indeed, than in that dependant on a lease for a thousand years, to which covenants may unquestionably be attached. He has, in fact, a sort of material reversion. Is it not possible, then, from this point of view, to adapt or the old rules of law to their changed circumstances, so as to reconcile, in some degree, the conflicting decisions at law and in equity? Now a man may obtain an injunction, where he could not bring an action, or could at any rate recover only nominal damages. Indeed, for most practical purposes, the ingenious logic and abstruse learning of Spencer's Case, must hereafter be of small importance. Yet it would be a pity to lose sight of the principles which lie behind them, and to swing so far in the opposite direction as to obliterate all distinction between real and personal Covenants. Would it not be well to preserve the essence and reason of that distinction, by enlarging, if it could be done, the doctrines of the earlier cases, so as to comprehend, not merely rever sions proper, but that very real, though still unrecognised interest, which, as we have said, a grantor retains in the material subdivisions of his land? This, perhaps, could not be done at law, without the aid of a statute, but it might prove to a Chancellor a safer and readier clue to determine the character of a covenant or condition, than any general notions of equity, which must vary much with individual judges. It is always better, where it is possible, to follow the analogy of established principles, where they have ceased to be directly applicable, than to elaborate a new theory, which must require a long time, and involve much conflict of decision, before it can be condensed into a practical system of rules. E. W. ABSTRACTS OF RECENT AMERICAN DECISIONS. SUPREME COURT OF PENNSYLVANIA.1 Tenancy by the Courtesy, Seisin necessary to create-Construction of Will-Life Estate in Land not created by Bequest of Rights and Privieges in it. In Pennsylvania a surviving husband is entitled to courtesy of land of his deceased wife, though she had no actual possession, but only potential seisin during her life. If she had possession by a tenant for wears, or only the right to present possession, it is sufficient: Buchanan s Duncan. A testator, by will, provided that his widow, during her life, should ive upon the homestead farm, upon which she was to have certain rights nd privileges; as, a portion of the dwelling-house, one-half of the garen, one-half of the share of the grain coming from the tenant, pasture in ummer and hay in winter, for her cow and horses, firewood, &c. He ben made a distribution of his whole estate, and after making a few legaies and bequests, gave to each of his two daughters, who were both maried, the "one-half part of his real and personal estate for the use and enefit of her legal heirs;" afterwards, and before the death of the widow, one of the daughters, the wife of B., died, and her husband laimed his courtesy as one-half of the farm In an action of ejectment, brought by him, it was held, that the widow had not an estate or life in the homestead farm, but only certain rights and privileges mit: Ib. That, subject to the provisions in favor of the widow, it descended to the wo daughters at the death of the testator, the wife of B. taking an estate fee simple in one undivided moiety of the farm, in which her husband was entitled to an estate by courtesy at her death: 1b. Remedy of Wife when Husband is one of two or more Debtors-Statute f Limitations as to such contract-Rule as to Hearing of Exceptions not made before Appeal to Supreme Court.-A married woman in 1845, ent to her husband and another trading in partnership, a sum of money n interest, out of her own separate estate. In 1857 the firm made an ssignment for the benefit of creditors. Upon distribution of the firm 1 From Robert E. Wright, Esq., State Reporter, to be reported in the 4th volume f his Reports. assets, under the assignment, it was held, that she was entitled to a distri bution upon the amount of her note, with interest, and that her claim was not barred by the Statute of Limitations: Kutz's Appeal. The wife could not maintain an action at law against the promissors, for one of them was her husband; and if the money was held in trust, and was not recoverable at law, the Statute of Limitations would not run against her. The disability of coverture, in equity as well as in law, under which she was, from the date of the note to the assignment, would prevent the running of the statute; so that she was not barred of her claim in equity: Ib. Where the wife's claim was resisted before the Auditor and in the Court below, on the sole ground that it was barred by the statute, it is too late afterwards to object, that there was no proof that the sum loaned was not her separate estate. She was permitted to receive and loan out the money, and neither her husband nor the creditors claiming through him, can object that the money loaned was not hers: Ib. Advancement, Evidence of-Expense of Educating Child not pre sumed to be an Advancement—Effect of Parent's Declarations.—Ques tions of advancement depend upon the intention of the parent, at the time when the property is received by the child: Miller's Appeal. Money furnished by a parent for the education of a child will not be presumed to be an advancement, without proof that such was the inten tion of the parent; for the education of a child is a parental duty; nor there such a presumption where security is taken from the child for the amount received, or where the parent attempts to preserve evidence of as a debt, by note, bond, book account, or otherwise: Ib. Therefore, where a parent expended money for the education of hi son, which he charged against the son, in his "day book," (wherein kept his accounts, and in which the son was credited for partial repay ments,) and not in a "family book," where advanced portions are usually entered, it was held, that the money furnished by the parent was not advancement, but a debt due by the son, intended to be such by the father when it was expended for the use of the son: Ib. Declarations by the father, made in the absence of the son, not com municated to him, and after most of the money had been furnished charged against him in a book account, that "it" was to come off from ❝erbschaft or inheritance," are not sufficient to convert the existing debt into an advancement: 1b. Advancement, charged by Testator against his Daughter-Effect of on Claim remitted to her Husband.-One purchased a farm from his wife's father, during her lifetime, and having paid most of the purchasemoney, a portion of the balance due was remitted by the father, who took a bond for the remainder; the amount thus remitted was charged to the daughter in the "family book," as cash paid for her. After her death her husband administered upon her estate, and upon account filed, he was sought to be charged with the sum remitted: Held, that the transaction did not make the husband the debtor of the wife, and that he was not chargeable with it in administering upon her estate: Mast's Appeal. The amount remitted by the father was an advancement to the daughter, though made to the husband; it was not a debt due to the wife from the husband, for when remitted, he ceased to owe it, and the direction in the father's will, that it should be deducted from the daughter's share, could not operate as an assignment of it as a debt against her husband: Ib. The husband is not chargeable for receiving the amount remitted as his wife's money, for it was remitted directly from the father to the son-inlaw, and was not her property under the Act 11th April, 1848, so that her husband could be responsible to her for receiving it: 1b. Action by Widow against Innkeeper for Death of Husband caused by Intoxication.-Acts of April 15th, 1851, May 8th, 1854, and April 26th, 1855, construed.-Under the Act of April 15th, 1851, a widow may maintain an action for damages against an innkeeper, for furnishing her husband liquor when intoxicated, in consequence of which he fell under the wheel of his wagon and was killed: Fink vs. Garman. That act not only regulated a common law right of action, by securing to it survivorship, but created a new and original cause of action, unknown to the common law, in favor of a surviving widow or personal representative, who had no right of action before: 1b. The right of action under the Act of 1851, was for the "unlawtul violence or negligence" of the defendant; and by the Acts of May 8th, 1851, and April 26th, 1855, the giving or selling liquor to a man of |