her property free from the restraints of her husband's debts? Surely the right to dispose of it is as important as her right to hold and possess it. The paramount idea of the act of 1848 was to lift from the married woman's estate the incubus of her husband's debts. We run directly counter to this beneficent policy when we permit the shadow of those debts to rest upon her title. We destroy one of its choicest fruits when we allow the fear of those debts to annihilate her right of alienation; a right inherent in the possession of all property. If her title be good, the fact that some one may question it hereafter, does not make it doubtful. There is no title which may not be attacked. Titles derived from proceedings in our courts are likely to be assailed for alleged defects in those proceedings. Could contracts for the purchase of such properties be rescinded because the purchaser might be called upon to show that those proceedings were regular? Why then should he who agrees to purchase a married woman's property be allowed to disregard his contract because he may be compelled to show that she acquired it according to law? No policy of law or morals requires it; and the spirit of the act of 1848 forbids it. The facts which make an otherwise good title doubtful, must strike at the title itself, and tend to establish a good title in another. In Speakman vs. Forepaugh, 8 Wr. 363, there was an outstanding title recorded after Speakman had purchased at sheriff's sale, but not within the time prescribed by the act of assembly. Even in that case the court held Speakman's title to be good in a court of law. A husband's indebtedness is consistent with a perfect title to property in his wife. It does not advance an assailant a hair's breadth in his attack upon that title. It gives him a standing in court, and permits him to call upon her to show that she paid for the property with her own means, and nothing more. How could that make a good title questionable or doubtful? If this view be incorrect, is the alleged blemish such as should be regarded in a court of law? There has always been a distinction upon this subject in courts of law and of equity. A court of law is satisfied with a title which is good. A court of equity will not compel a man to accept a title which he may be required to defend. This principle in courts of law has been extended to all actions for the purchase-money, upon the ground that they are really in the nature of bills for specific performance. The principle upon which this distinction rests it is not necessary to comment upon. The plaintiff seeks to recover money which he paid upon his contract with the defendants that they should give him a good title to the property. This they have offered to do; and there is no basis for his claim. He is not defending against a bill for specific performance, or a suit for the recovery of the purchase-money. He is here the actor. He must show that the defendants are withholding the money claimed in violation of their contract with him. This he has failed to do, and should not recover. The rule for a new trial is made absolute. M. Sulzberger, Esq., for plaintiff. S. Ridgway Kennedy and John A. Bickel, Esqs., for defendant. [Leg. Int., Vol. 31, p. 53.] MCNUTT vs. McEwEN. Before a covenant not to practise medicine "in the neighborhood" can be enforced in equity, evidence must be given to show the extent of the practice sold to plaintiff. In equity. Sur motion to continue special injunction. Opinion delivered February 7, 1874, by PAXSON, J.-The defendant, who is a physician, sold his office and residence in this city to the plaintiff, and covenanted that he would not thereafter practise his profession in the "neighborhood." It is conceded that the defendant has resumed the practice of his profession within three squares of his former location. The plaintiff seeks to enjoin him. Upon the admitted facts of the case the plaintiff's right to an injunction would be clear but for the uncertainty implied in the word "neighborhood." It is a very indefinite term, and while I do not think the covenant void for uncertainty, and an action at law for its breach might perhaps, be sustained, it is difficult to define it by metes and bounds. Were we to enjoin the defendant from practising in his "neighborhood,' it would be difficult to punish him for disobeying our order. In its general or popular sense the word referred to means "a place near; the adjoining district; vicinity; a small district."-Worcester's Dictionary. In its legal sense a man's neighborhood may be said to be co-extensive with the range of his frequent intercourse with his fellow-citizens: Chess vs. Cess, 1 Pa. 40. In the sense in which it is used in this covenant it embraces the circuit of the defendant's practice as a physician. We cannot go beyond that, for the covenant is in restraint of trade, and must not be enlarged. Hence we could not extend it over the entire city. If we embrace Germantown and Chestnut Hill, why not Camden or Darby? As the case stands now we might well refuse to continue this injunction; but it exhibits so palpable an instance of bad faith on the part of the defendant that we will permit the plaintiff to submit affidavits of the extent of the defendant's practice. If he can fix its boundaries with sufficient certainty we will continue the injunction; otherwise we must leave him to the chance of an injunction upon final hearing, or turn him over to his remedy at law. J. R. Sypher, Esq., for plaintiff. Geo. W. Harkins, Esq., for defendant. [Leg. Int., Vol. 31, p. 53.] HEYL VS. THE CITY. A motion to dissolve an injunction can only be made after answer filed. This does not apply to ex parte injunctions. Opinion delivered February 7, 1874, by PAXSON, J.-In this case the usual ex parte injunction was granted, and after a hearing, continued, more than a year ago. On Tuesday last the cause was set down for argument upon a motion to dissolve. No answer has been put in, nor has any step been taken by the defendant since September 28, 1872, when the order continuing the special injunction was made. I declined to hear the motion to dissolve, and continued the cause until the next equity motion day, for the reason that such application could not properly be made until after answer filed. Subsequent reflection has satisfied me that in this I was right. It is true, some of the text books say, that a motion to dissolve may be made before answer; but this manifestly applies to ex parte injunctions, and not to cases where there has been a hearing. Otherwise we might be constantly employed in reviewing our own decisions. It is purely a question of practice, and the correct rule in such cases will be found in Adams' Equity, 196, 359. If the defendants put in an answer on or before the next equity motion day, they will be in a position to move to dissolve the special injunction. D. C. Harrington, Esq., and Hon. F. Carroll Brewster, for plaintiffs. R. N. Willson, and Chas. H. T. Collis, Esqs., City Solicitors, for the city. [Leg. Int., Vol. 31, p. 53.] DAVIS VS. SOUDER. A license to take away soil, sand, etc., where the grantee has experrded money on the faith of it, cannot be revoked. Motion to continue special injunction. Opinion delivered February 7, 1874, by PAXSON, J.-We do not attach much importance to the denial of plaintiff's title contained in the defendant's answer. It is not disputed that the plaintiff has the full equitable title to the seventeen lots in question, and that the legal title is now in course of preparation. This is sufficient to give him a standing in a court of equity. The defendant justifies his taking of the "soil, earth, gravel, sand and stone," from the said lots, under a license from the Fairhill Land Company, at that time the owner of said lots, and now the vendor of plaintiff. Said license bears date the 31st of March, 1873; is signed by Louis Wagner, as chairman of the committee on streets of the Fairhill Land Company, and authorizes the plaintiff to "remove the surplus earth from the lots of the Fairhill Land Company, for the purpose of filling up Fifth street, and for no other purpose," etc. The plaintiff contends that this is a mere license, without consideration; that it is revocable at the pleasure of the Fairhill Land Company, or by the plaintiff as the grantee of said company. The general rule undoubtedly is, that a mere license may be revoked. There are exceptions, however, to this rule. One of those exceptions is, where the person to whom the license is given makes substantial improvements and expends money on the faith of such license, and with the knowledge of the person granting it. In such cases it has always been held that it would be inequitable to revoke it. "A license may become an agreement on a valuable consideration, as when the enjoyment of it must necessarily be preceded by the expenditure of money; and when the grantee has made improvements or invested capital in consequence of it, he has become a purchaser for a valuable considera tion:" Rerick vs. Kern, 14 S. & R. 267. In this case the defendant, at the time contemplating entering into a contract with the city of Philadelphia, at a certain fixed price, to grade Fifth street, from Clearfield to Westmoreland street, proposed to the Fairhill Land Company to remove the surplus earth from certain of the lots of said company, and use the same in grading or filling up Fifth street, and the neighborhood of the said lots. He alleges that he would not have taken the contract at the price named therein, without the privilege of removing the earth aforesaid; that having obtained said license from the land company, he entered into said contract; has expended $1,500 in the purchase and employment of horses, carts, etc.; and that if said license should be revoked it would subject him to a heavy loss. Practically, the removal of the earth will add to the value of the lots, as it reduces them to the city grade. The plaintiff alleges, however, that a large proportion of the substance to be removed is gravel, and worth much more than the costs of removing it; that the land company acted improvidently, and not with a proper regard to the interests of its stockholders when it gave this license. If this be so it is no concern of this defendant. He was authorized to do what was, in one view, at least, a benefit to the company. On the faith of it, and with the knowledge of the company that he intended to do so, he entered into a contract with the city for filling up Fifth street, and made a large expenditure in the purchase of horses, carts, etc. It would be against equity and good conscience to allow the land company now to revoke this license. It was urged that the expenditure made by defendant had not been upon the lots in question. While this is true in point of fact, I do not see the force of the objection. In many of the cases cited by the learned counsel for the plaintiff there had been expenditures upon the land charged with the license, as in boring for oil, or sinking shafts for coal and other minerals. Yet none of the cases rest upon the ground that the expenditures had been made upon the land. The principle is, that having induced or permitted the party to expend his money upon the faith of the license, it would be inequitable to revoke the license, and thus deprive him of the fruits of his expenditure. No better illustration of this can be found than in the leading case of Rerick vs. Kern, before cited, where the plaintiff had erected a mill upon his own land upon the faith of a parol license to use the water from the defendant's property. This It was urged upon the argument that if the Fairhill Land Company cannot revoke this license, the plaintiff, as its vendee, may do so. proposition assumes that the plaintiff is a bona fide purchaser without notice; whereas, the fact is undisputed in this case, that he is a stockholder in the said company, was one of the board of directors at the time this license was granted, and had actual personal knowledge thereof. He was part owner of these lots at the time of the grant, in the sense in which a stockholder of a corporation may be said to be interested in its real estate. The equities of the case are all against the plaintiff, and his motion to continue the special injunction is denied. R. P. White, Esq., for plaintiff. [Leg. Int., Vol. 31, p. 68.] CHRISTMAN vs. BAURICHTER. After dissolution of a partnership and payment of its debts, if there is no special agreement, each partner should be paid ratably his advances. In equity. Exceptions to master's report. Opinion delivered February 21, 1874, by FINLETTER, J.-The capital invested was $2,900; of which the plaintiff furnished $2,000, and the defendant $900. The business was unprofitable; and the assets are about $1,400. The master distributed this sum in proportion to the capital advanced by each, and charged the costs equally. The defendant excepts, 1st, because the assets should have been shared equally; and 2dly, because all the costs should have been imposed upon the plaintiff. Articles of partnership are not intended to define all the rights and duties of partners inter se. Much is left to be understood and determined by general principles, which are always applicable when not clearly excluded. They are to be construed so as to defeat fraud, and the taking of unfair advantages: Lindley on Partnership, pp. 841 and 843. this In the case before us the articles of agreement provide that "the profits shall be divided equally." "And in case of the dissolution of copartnership from whatever cause, the parties hereto agree to and with each other that they will make a true, just and final account, of all things relating to their said business, and in all things truly adjust the same. And after all the affairs of the copartnership are adjusted and its debts paid off and discharged, then all the stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, either in money, goods, wares, fixtures, debts or otherwise, shall be divided between them." It is clear there can be no division of assets until they shall have made "a true, just, and final account of all things relating to their said business, and in all things truly adjust the same." Not the least of the things relating to their said business are the accounts of the individual partners with the firm. They are some of the affairs of the copartnership, the adjustment of which they have made necessary to a division. of the assets. There is no allegation that "equally" was omitted from the clause by fraud or mistake. We cannot interpolate it; for that would be adding to the written contract of the parties. There is no ambiguity in the language used; and as it stands we must apply the principles of construction. "Divided" means divided according to law. Partnership arises from a contract to join in lawful business; and to divide the profits and the losses. The controlling idea is a division of profits. The courts have always held that a partnership existed whenever the profits were divided, even though the parties may have agreed otherwise. It nowhere appears that a division of assets enters into the definition of partnership. That, indeed, could only work a dissolution. This |