also undertake not to establish myself, nor to associate myself with other persons or houses in the champagne trade (dans le commerce des champagnes) for ten years in case I should leave you as already mentioned above. I enter into these engagements trusting to your assurance that I may rest in the idea that my position is assured in your house except in the event of unforeseen events or of negligence on my part in the affairs which are or shall be intrusted to me, and I promise to do all in my power to maintain and increase the good reputation of your house in the countries I am connected with."

When this letter was written the defendant was staying at Epernay for a few days on his way to England from Switzerland, where he had been spending a holiday. He was a native of Switzerland but resident in England. The defendant continued in the plaintiff's employ until the 1st May, 1877, when he voluntarily

left them.

In 1878 the defendant established himself at No. 2 Piccadilly place, London, as a champagne merchant, and advertised himself as selling champagne, and the plaintiffs alleged that by his advertisements and circulars he led people to suppose that he was established at Ay, which is in the neighborhood of Epernay, and that he had applied to many of the plaintiffs' customers, to whom he had been introduced as their traveller, to buy his champagne as well as the plaintiffs, all of which they contended was a breach of the contract of the 9th October, 1869.

In September, 1878, the plaintiffs instituted an action against the defendant in the Tribunal of Commerce, sitting at Epernay, to recover damages for the loss sustained by them by reason of the breach by the defendant of the agreement contained in the letter of the 9th October, 1869, and to restrain him from further breach thereof.

On the 6th November, 1878, the Tribunal of Commerce gave judgment in the action. The judgment contained recitals of the facts proved and of the proceeding in the action, and then proceeded in the French language, in the words of which the following is a translation:

"Say that Auguste Roussillon should not represent any champagne house for two years from the commencement of the year 1878, and that during ten years from the same period he should not carry on business as a champagne merchant either on his own account or in partnership. Order that in a week following notice of the present judgment he shall completely cease to trade as a champagne merchant, and shall suppress the words "Ay Champagne," and the mention of champagne wine from his labels, advertisements, and circulars. This under penalty of 100 francs damages per day for non-compliance for two months after which right shall be enforced."

Certain other directions were given in the judgment as to notifying defendant, etc.

Notwithstanding this judgment, the defendant continued to carry on his business, and to advertise as before, and did not pay the plaintiffs any of the damages awarded by the judgment.

The plaintiffs alleged that they were sustaining considerable loss in consequence of the defendant trading in this manner, and claimed an injunction restraining him from representing any champagne house for two years from the 1st May, 1877, and from carrying on business as a champagne merchant for ten years from the same date; that he might be ordered to pay them the sum of 8911. 98., the amount awarded by the French tribunal, with interest thereon; and also 500l. damages.

From the evidence it appeared that the defendant was never domiciled in France, but only paid temporary visits to that country, and at the date of the proceedings against him before the Tribunal of Commerce,

was residing in England. That those proceedings were taken entirely without his knowledge, and that the first notice he had of them was in November, 1878, when the judgment was handed to him.

From the evidence of a French avocat it appeared that according to the law of France contracts in restraint of trade were not void, and that a judgment by default was void if not executed within six months, unless every thing had been done that could be done to obtain execution.

FRY, J. In this action the plaintiffs seek for an injunction on two grounds. The one is a contract contained in a letter of the 9th October, 1869, and the other is a judgment of the Tribunal of Commerce in France of the 6th November, 1878. The two subjects require entirely separate consideration. With regard to the contract and judgment, but few facts are in controversy between the parties, and it does not therefore appear to me to be necessary to state in detail the history of the case, more especially as I shall from time to time in the course of my judgment refer to the facts which I consider have been proved in evidence before me. Now, the first argument raised on the part of the defendant is that no breach of the contract has been committed by him. It becomes therefore necessary to consider what are the terms of the contract. They are, so far as it is necessary for this purpose to consider them, in these words: "I undertake not to represent any other champagne house for two years after having left you, if at any time I leave your house for any reason whatever, whether it be on your part or on my own. I also undertake not to establish myself, nor to associate myself with other persons or houses in the champagne trade for ten years, in case I should leave you as already mentioned above." The question in dispute has been this: what is the meaning of the words "the champagne trade," in the clause I have read? In my judgment they refer to the trade of exporting from Champagne or importing into this country the wines of Champagne. It has been urged that it involves also the making of the wine in Champagne. It appears to me that that is not a necessary part of the champagne trade, because the trade may be carried on without that, as shown in the present case. The defendant buys his wines in Champagne, and exports them from Champagne into this country, or rather imports them from Champagne into this country, and he affixes to the bottles of wine that he brings over his own brand, which indicates that he is an importer, that he has selected the wine, that in a certain sense, he is a guarantor of the excellency of the wine, and he has placed upon it the name of the place at which he buys the wine, namely, Ay, in Champagne. It appears to me that those acts are a violation of the terms of the contract he has entered into. I repeat that the terms of the contract appear to me to be that the defendant shall not act as an importer of champagne from that province into this country, and that trade has been carried on by the defendant. I hold, therefore, that the plaintiffs have established a breach of the contract entered into. In the next place it is said by the defendant that the contract is bad in law. It has been suggested on his behalf that there is no sufficient consideration shown, but as Mr. North has declined, on the ground of the condition and the state of the authorities, to argue that point before me, it does not require adjudication at my hands. In the next place it is said that the contract is not reasonable, and it is unquestionably the law of this country that contracts of this description, being in restraint of the freedom of trade, must be reasonable. Now, what is the criterion by which the reasonableness of contract is to be judged. I will take the law on that point from the judgment of Tindall, C. J., in delivering the judgment of the Court of Exchequer Chamber,

on appeal from the Court of Queen's Bench, in Hitchcock v. Coker, 6 A. & E. 438, where he said (p. 454): "We agree in the general principle adopted by the court, that where the restraint of a party from carrying on a trade is larger and wider than the protection of the party with whom the contract is made can possibly require, such restraint must be considered as unreasonable in law, and the contract which would enforce it must be therefore void." That passage was adopted by Lord Wensleydale, when a baron of the Court of Exchequer, in delivering judgment in Ward v. Byrne, 5 M. & W. 548, 561, and therefore the rule so expressed has the authority of the three Common Law Courts, the Queen's Bench, the Common Pleas, and the Exchequer. If, therefore, the extent of the restraint is not greater than can possibly be required for the protection of the plaintiffs, it is not unreasonable. Another case which in my view throws great light upon the mode in which this question ought to be approached is Tallis v. Tallis, 1 El. & B. 391. There the plaintiff and the defendant had been partners as publishers of books. Part of their trade, called the canvass trade, consisted in publishing books in numbers, and employing travellers to sell such books by canvassing purchasers. The partnership was dissolved, the plaintiff being the continuing partner. The defendant agreed, amongst other things, not directly nor indirectly to be concerned in the canvassing trade in London, or within 150 miles of the General Post-Office, nor in Dublin or Edidburgh, or within fifty miles of either, nor in any town in Great Britain or Ireland in which the plaintiff or his successors might at the time have an establishment, or might have had one within the six months preceding. The action was for a breach of the covenant. It was pleaded, amongst other things, that there were numerous works which the plaintiff did not publish and had no intention of publishing, and that many of such works might be published with advantage to the public by the defendant, and without injury to the plaintiff, that the canvassing trade applied to ali such books; and that the restraint as to the canvassing trade as applicable to such books was unreasonable. The court upon those pleadings, upon a demurrer, held that the declaration was good, it not appearing that the restraint was unreasonable. And in giving judgment they considered a dictum in Mitchell v. Reynolds, 1 P. W. 181, 191, to the effect that: "Wherever such contract stat indifferenter, and for aught appears, may be either good or bad, the law presumes it prima facie to be bad." But instead of adopting that view they called attention to what was said by the Court of Exchequer in Mallan v. May, 11 M. & W. 653, 667, that "it would be better to lay down such a limit as under any circumstances would be sufficient protection to the interest of the contracting party, and that if the limit stipulated for does not exceed that, to pronounce the contract to be valid." And further on in their judgment they said this: "Even if the facts therein stated are taken to be admitted by the demurrer, and the reasonableness of the restriction in question is to be considered with reference to those facts, together with the facts alleged in the declaration, still we think the pleas bad. For although the books capable of republication may be at most infinite, still the number of subscribers to such republication coming out in numbers is limited; and although if the defendant's books are excluded, it does not follow that the plaintiff's books would be purchased, still we cannot ascertain that the number of subscribers to the plaintiff's books would not be diminished if the defendant competed with him by offering other books, especially if they were of a similar character. And unless the defendant made it plainy and obviously clear that the plaintiff's interest did not require the defendant's exclusion, or that the public interest would be sacrificed if the defendant's

intended publications are excluded, according to the general rule before referred to we ought not to hold the contract void." In other words the Court of Queen's Bench threw upon the defendant, who alleged the invalidity of the contract on this ground, the burden of showing that it was plainly and obviously clear that the protection extended, and the proposed exclusion of the defendant's publications was, beyond what the plaintiff's interests required. And such, in my opinion, ought to be the rule of law of this court upon this point, because it is to be borne in mind that the defendant is seeking to put a restraint upon the freedom of contract, and he who does that must, I think, show that it is plainly necessary for the purposes of freedom of trade. In that point of view I adopt the view expressed by the Master of the Rolls, upon the subject of the necessity of courts being careful how they invade the freedom of contract, in Printing and Numerical Registering Company v. Sampson, 32 L. T. Rep. (N. S.) 354; L. Rep., 19 Eq. 462, 465. The question then arises, does the defendant in this case discharge the burden so cast upon him. In answering that I must consider the facts of the case. It appears that at the time this contract was entered into, the defendant had for some two years been acting as the representative of the plaintiffs in England. His instructions appear to have been under their direction to travel over all parts of England and over Scotland, and at a subsequent date, not so far as I know at this date, he visited Holland for the purposes of their trade. Further than that, he had, by a residence of some four months in Epernay, at the house of the principal plaintiff, acquired apparently a knowledge of the plaintiffs' trade as carried of in France. He was therefore acquainted with the trade at both its ends. He was a relative of the plaintiffs and bore their name. Looking, therefore, at the extent of trade carried on by the plaintiffs aud its diffusion over the whole of England; looking at the facilities which now exist for carrying on trade in various places by means of the freedom of communication which exist between them, I cannot say that it has been made plain and obvious to me that this contract exceeds in its extent that which the plaintiffs were entitled to for the protection of their trade. No doubt criticisms may be made on the contract, and it may be said, as it has been said, that you can conceive cases which the restraint would apply, in which no injury would be done to the plaintiffs. That observation applies to Tallis v. Tallis, 1 E. & B. 391, and when I bear in mind the obvious channels through which trade is influenced, and the great difficulty of providing for every possible case in which injury might arise, without including certain possible cases in which injury might not arise, I have come to the conclusion that it has not been shown to me that this contract is larger than is necessary for the reasonable protection of the plaintiffs, and I hold therefore that that objection fails. But then it is said that over and above the rule that the contract shall be reasonable, there exists another rule, viz., that the contract shall be limited in its space, and that this contract being in its terms unlimited, and therefore extending to the whole of England, meaning England and Wales, must be void. Now, in the first place, let me consider how far such a rule would be reasonable. There are many trades which are carried on all over the kingdom which by their very nature are extensive and widely diffused. There are others which from their nature and necessities are local. If this rule existed it would afford a complete protection to the latter class of trade, whilst it would prohibit complete protection of the former class, and an injury which ought not to be wrought without good reason would arise. In the next place, the rule, if it existed, would apply in two classes of cases. It would apply where the want of limitation of space was unreasonable, and it would apply also where the univer

sality of the contract was reasonable. Now, in the former class of cases, those in which the universality was unreasonable, the rule would operate nothing, because that is already covered by the rule that the contract must be reasonable. It would therefore only operate in cases in which the universality of the prohibition was reasonable, that is to say, it would only operate where it ought not to operate. For the existence of such a rule I should require authority. In the next place, this rule is pressed upon me as an artificial rule, an absolute rule, or what has been called by the late Wickens, V. C., a hard and fast line, or a hard and fast rule. Such a rule may always be evaded by a single exception. No exception to a rule of this description can be said to be colorable, because you can only judge whether the exception be colorable or not by the principle of the rule; but if the rule, as suggested in this case, be really an artificial one, without principle, there is no criterion to tell whether the evasion is colorable or not. It appears to me for these reasons that I ought not to hold such a rule to exist unless it be clearly established. Then how stand the authorities upon the point? There are undoubtedly cases in which it has been said that the restraint must not be universal. Such are the cases of Warde v. Byrne, 5 M. & W. 548, and Hinde v. Gray, 1 M. & G. 195, but looking at the judgments in those cases, and reading them with a view to the subject-matter, they appear to me to relate only to cases in which the universality is unreasonable, and more than once in Warde v. Byrne the rule is so explained, although I candidly admit that you may select other passages in the judgment in which the court seems to say that the universality is of itself an objection to the contract. But undoubtedly Wickens, V. C., of whose judgments I can never speak without the highest respect, came to the conclusion that such an artificial rule existed, and so he expressed himself in the case of Allsopp v. Wheatcroft, 27 L. T. Rep. (N. S.) 372; L. Rep., 15 Eq. 59. He says (p. 64) that "there has been a natural inclination of the courts to bring within reasonable limits the doctrine as to these covenants laid down in the earlier cases, but it has generally been considered in the latter as well as in the earlier cases, that a covenant not to carry on a lawful trade, unlimited as to space, is on the face of it void. This seems to have been treated as clear law in Warde v. Byrne, 5 M. & W. 548, and in Hinde v. Gray, 1 M. & G. 195, and in other cases; and the rule, if not obviously just, is at any rate simple, and very convenient. No doubt in the case of The Leather Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. Rep., 9 Eq. 345, James, L. J. (then Vice-Chancellor), threw some doubt on the existence of a hard and fast rule which makes a covenant in restraint of trade invalid if unlimited in area. There are earlier cases than the one before James, V. C., which seem to me to be inconsistent with the existence of the supposed hard and fast line. In Whittaker v. Howe, 3 Beav. 383, the case relating to attorneys, it was stipulated that the business should not be carried on in any part of Great Britain for twenty years; and again in Jones v. Lees, 1 H. & N. 189, the covenant was against selling a particular article anywhere in England without the invention of the plaintiff applied to it, and the objection that the covenaut was unlimited as to space was taken. "It is objected," said Bramwell, B., "that the restraint extends to all England, but so does the privilege. The cases with respect to the sale of a good-will do not apply, because the trade which is the subject-matter of the sale is local, and therefore a prohibition against carrying it on beyond that locality would be useless." In other words the learned judge explains the inclination of the courts against the universality of a prohibition applying only to cases where the subject-matter of the sale was itself local. That is just the view I take of the earlier cases. Still more important are the observations of James, L.

J., in the case of The Leather Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. R., 9 Eq. 345, where he undoubtedly came to the conclusion that no such rule was laid down as has been insisted on before me. Haying referred to the cases he says (p. 353): "I do not read the cases as having laid down that unrebuttable presumption which was insisted upon with so much power by Mr. Cohen. All the cases, when they come to be examined, seem to establish this principle, that all restraints upon trade are bad as being in violation of public policy, unless they are natural and not unreasonable for the protection of the parties in dealing legally with some subject-matter of contract." I have, therefore, upon the authorities, to choose between the two sets of cases; those which recognize and those which refuse to recognize this supposed rule, and for the reason I have already mentioned, I have no hesitation in saying that I adhere to those authorities which refuse to recognize this rule, and I consider that the cases in which an unlimited prohibition has been spoken of as void, relate only to cases where such a prohibition has been unreasonable. It follows, therefore, from what I have said that in my judgment the plaintiffs have established their right upon the contract to have an injunction, the terms of which I will mention hereafter. It appears to me that no sufficient evidence has been given to induce me to award substantial damages to the plaintiffs in this case, and I therefore award them the sum of 18., and no more. Before parting with this part of the case it is desirable to refer to two other points noticed by Mr. Cookson, because they were fully argued by him, and as to one of them the argument was renewed in the reply. He has insisted that even if the contract of the letter of the 9th October, 1869, was void by the law of England as against public policy, yet inasmuch as that contract was made in France it must be good here; and accordingly he has proved that the law of France knows no such principle as that by which unreasonable contracts in restraint of trade are held to be void in this country. It appears to me to be plain, on general principles, that this court will not enforce a contract against the public policy of this country, wherever it may be made. It appears to me almost absurd to suppose that the courts should enforce here what they consider to be against public policy, simply because the contract happens to have been made somewhere else. In the next place he urged that although the policy of this country promoted trade amongst its native subjects, there was no such policy in favor of the trade by foreign merchants, and the defendant, being a foreign merchant, he said he was exempt from the leaning of the English law in favor of trade. It appears to me that that view cannot be substantiated, and that an elementary point may be met by a citation from an elementary book, and I will, therefore, only refer to a passage in Mr. Justice Blackstone's Commentaries, in which he deals with the mode in which the English law has regarded trade by foreign merchants. He says (vol. 1, p. 230): "The law of England, as a commercial country, pays very particular regard to foreign merchants in innumerable instances;" and then he goes on to refer to the decision of Magna Charta in favor of foreign merchants. I hold, therefore, that neither of those two arguments on the part of the plaintiffs can succeed, and I only refer to them because they have been fully argued at the bar. I next approach the question of the judgment obtained by the plaintiffs in the Tribunal of Commerce at Epernay on the 6th November, 1878. That judgment, according to the evidence before me, was obtained without any notice to the defendant. He knew nothing of the pendency of the proceedings until they had matured into a judgment. It is not shown before me that according to the law of France the defendant has had any opportunity, or that there is any power in him to set aside that judgment. The

question was put to the French advocate who gave evidence, and he seemed to know nothing of any such provision in the law as seems to have been proved in some other cases. Further than that, it has been shown by him that this judgment is void, according to the French law, if it was not executed within six months, or if the utmost efforts to execute it were not taken. It has not been shown to me that such efforts have been taken, or that execution has been had upon this judgment. That is the state of facts with regard to this judgment. Now arises the question of how far the defendant is bound by it, and the law upon this point I think I may conveniently take from the case of Schibsby v. Westenholz, 24 L. T. Rep. (N. S.); L. Rep., 6 Q. B. 155, which has been so much cited and discussed in the course of this case. In that case the court considered that the true principle on which foreign judgments are enforced by courts of this country, and they say, referring to the case of Goddard v. Gray (p. 159): "We think that, for the reasons there given, the true principle on which the judgments of foreign tribunals are enforced in England is that stated by Baron Parke in Russell v. Smyth, 9 M. & W. 810, 819, and again repeated by him in Williams v. Jones, 13 M. & W. 628, 633, that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce; and consequently that any thing which negatives that duty, or forms a legal excuse for not performing it, is a defense to the action." What are the circumstances which have been held to impose upon the defendant the duty of obeying the decision of a foreign court? Having regard to this case, and to the subsequent case of Copin v. Adamson, 31 L. T. Rep. (N. S.) 242; L. Rep., 9 Eq. 345, they may, I think, be stated as these. The courts of this country consider the defendant bound where the defendant is a subject of a country in which the foreign judgment has been obtained; where the defendant was resident in the country when the action began; where the de fendant in his character of plaintiff has selected the forum in which he is afterward sued by the other plaintiff; where the defendant has voluntarily appeared, and where he has contracted to submit himself to the forum in which the judgment was obtained; and possibly, if the case of Becquet v. M'Carthy, 2 B. & Ad. 951, be right, another condition must be added, where the defendant has real estate within the jurisdiction in respect of which the cause of action arose whilst he was within the jurisdiction. Now, none of these cases include the present case. In the present case the contract was made between the plaintiffs, or one of the plaintiffs, a French subject, and the defendant, a Swiss subject, at the time the contract was made domiciled in Switzerland, but resident in England, he having been for some two years established as the English correspondent or representative of the plaintiffs' firm. He made the contract during a short stay at Epernay, on his return home from a visit to his mother in Switzerland. At the time of making the contract there was no intention on his part, or so far as I can gather, on the part of the plaintiffs, that the defendant should take up his residence in France, and it does not appear to me that either party contemplated the performance of the contract in France, although, the terms of it being universal, it might be observed or broken anywhere. In that state of circumstances, can I find any thing which makes it reasonable to say that the defendant ought to be bound by the decision of the foreign court? I am at a loss to find any circumstance which renders it reasonable, and therefore it appears to me that the defendant is at liberty to say that he is not in any way bound by the judgment so obtained against him in the foreign court, and without notice to him, and to which he has in no

way submitted; the result of which is that I hold that this judgment is not capable of being enforced in this country, and that the whole of the relief sought by the plaintiffs in the present case in respect of that judgment fails. Having regard to the large extent to which the plaintiffs have failed, I think that the reasonable mode of dealing with the costs will be to award no costs, but to let each party bear his own costs. There will therefore be judgment for the plaintiffs to the extent of an injunction restraining the defendant from carrying on business as an importer of champague for the period of ten years from the 1st March, 1877, and from in any other manner acting in contravention of that contract, with one shilling damages and no costs. And I dismiss the action so far as it seeks to enforce the judgment.

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

JURISDICTION BANKS ARE PARTIES.

- OF SUITS TO WHICH NATIONAL (1) The Federal courts have jurisdiction over all suits by and against National banks, irrespective of the subject-matter. U. S. R. S., § 629; First Nat. Bank of Omaha v. County of Douglas, 3 Dill. 298; Bank of Bethel v. Pahquioque Bank, 14 Wall. 383-395; Kennedy v. Gibson et al., 8 Wall. 498; Osborn v. United States Bank, 9 Wheat. 738. (2) Joining merely nominal or personal parties has no effect either to confer or exclude the jurisdiction; but trustees, executors, and the like are not formal parties, within the meaning of the rule, where in fact interested in the litigation. Accordingly, where two or three persons, claiming a certain fund which was in the custody of a National bank, brought their bill in equity against the bank and a third claimant, and the bank exhibited its cross-bill, praying that the parties might interplead, this was held to confer jurisdiction, although but for such cross-bill the jurisdiction was doubted. Browne v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheat. 421; Wood v. Davis, 18 How. 467; McNutt v. Bland, 2 id. 9; Knapp v. Railroad Co., 20 Wall. 117. Circ. Ct., Colorado, 1880. Foss v. First National Bank of Denver. Opinion by McCrary, J.

In

MARITIME LAW BOTTOMRY BOND-COLLISIONORDER OF LIENS.-A claim for damages caused by a collision occurring during the voyage is entitled to preference over a bottomry loan made upon the same voyage, prior to the happening of such collision. The Almi, 1 Week. R. 118, it is said: "The creditor in damage has no option, no caution to exercise; the creditor on mortgage or bottomry has. He may consider all possible risks, and give credit or not as he may think most advisable for his interest. He has an alternative; the creditor in damage has not." The preference of a creditor in damage over a lender on bottomry has been considered by some to rest upon the general rule of the admiralty, that maritime liens are paid in the inverse order of their inception. The American, 6 Reporter, 277. But it seems that the reason of the general rule fails when the demand competing with a bottomry arises out of a collision, for one cannot conceive it possible to say that a prior lender on bottomry has derived any benefit from a subsequent collision. The value of the lender's security cannot be enhanced by a subsequent collision, nor could such a collision in any way tend to preserve the lender's security for him, but the contrary. Dist. E D., New York, June 26, 1880. Force v. Ship Pride of the Ocean. Opinion by Benedict, J.

RECEIVERS ACTIONS AGAINST-CONSTITUTIONAL LAW-JURY TRIAL.- (1) Property in the hands of a receiver is in custodia legis. His possession is the pos

* Appearing in 3d Federal Reporter.

session of the court appointing him. No suit can be brought against him to disturb his possession, or to charge him with liability for au act done in the performance of his duties as such receiver without the consent of such court. Any one instituting such a suit without leave may be enjoined or attached for contempt. The proper proceeding is to apply to the court appointing the receiver by petition, setting forth therein the grounds of complaint. Thereupon the court will direct a trial by a jury, reference to a master, or such other mode of proceeding as in its discretion it may deem best. (2) The right of trial by jury in such a proceeding against a receiver, on a cominonlaw cause of action, is not an absolute right, but the granting or withholding thereof lies within the sound discretion of the court. Such a proceeding is not a "suit at law" within the provision of the Constitution guaranteeing the right of trial by jury. In this case upon application of bondholders of the Indianapolis, Cincinnati & La Fayette Railroad, in a suit to foreclose their security, a receiver was appointed to operate the road. During such operation a train ran over a Mrs. Cork. A petition was filed in the foreclosure proceeding by her husband, as administrator, to recover damages for her death. Held, that petitioner was not entitled to a trial by jury. Jones' R. Sec., §§ 502-3; Story's Eq. Jur., §§ 831, 833; Ship v. Harwood, 3 Alk. Kerr. Rec. 168; Wiswall v. Sampson, 14 How. 65; Davis v. Gray, 16 Wall. 203, 218; Thompson v. Scott, 4 Dill. 508. Circ., S. D. Ohio, July, 1880. Kennedy v. Indianapolis, Cincinnati & La Fayette Railroad Co., In re Cork. Opinion by Baxter, C. J.

ILLINOIS SUPREME COURT ABSTRACT. JUNE, 1880.*

WOMAN-IM

ACKNOWLEDGMENT — BY MARRIED PEACHMENT OF.- -The certificate of acknowledgment by an officer authorized to make the same, to a deed or other instrument affecting or relating to the title to land, can only be impeached and shown to have been made in fraud, or as a forgery, by clear and entirely satisfactory evidence. Mere suspicion, loose and unsatisfactory evidence, or inconclusive evidence, will not suffice. But where the clear and decided preponderance of the evidence shows that a married woman refused to execute a note and deed of trust upon her land, when urged to do so by her husband, and positively refused to acknowledge the deed of trust, and the proof showed that the signature was not in her handwriting, but that the deed was executed by a mark, when she could write, it was held, that a decree setting aside the trust deed and enjoining an action of ejectment brought by the purchaser against her was proper. Myers v. Parks. Opinion by Walker, C. J. CONSTITUTIONAL LAW-TAXATION-EXEMPTION BY CHARTER, BINDING ON STATE. Where the property of a corporation is exempted from taxation by its charter, the exemption amounts to a legislative contract, which is binding on the State, and such property cannot afterward be subjected to taxation. Opinion by Dickey, J. Walker, C. J., and Scott, J., dissented.

STATUTE OF FRAUDS-SALE OF REAL ESTATE — ARBITRATION AS TO PRICE TO BE PAID-NOTICE OF AR

BITRATION, WHEN UNNECESSARY. -(1) The statute of frauds will be satisfied by such a statement in a written contract as ascertains the price to be paid, although it mentions no specific sum, as for instance, if to pay a price to be settled by arbitration, or upon the valuation of appraisers to be selected by the parties. Where a lease of lots, executed by both parties, fixed the annual rent for the first five years, and then provided

* To appear in 95 Illinois Reports.

that the amount of the rent to be paid annually for the next five years should be six per cent on the appraised value of the premises, to be ascertained by appraisers, one to be selected by each party, and they to select another, in case they could not agree, it was held that the contract was not within the statute of frauds as to the rent to be paid for the second five years. Brown v. Bellows, 4 Pick. 179. (2) Where the parties to a lease provide for rent to be paid yearly, at six per cent on the appraised value of the demised premises, to be ascertained by the selection of property-holders, this is not a submission to arbitration, and no notice to the parties is necessary before making the appraisement, unless the lease so requires, and the finding of the appraisers, when selected, will be conclusive upon the parties, except for fraud. The cases on this subject are not harmonious. Peters v. Newkirk, 6 Cow. 103, and McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. 463, rule that notice is required. But see Elmendorf v. Harris, 5 Wend. 521. The New York rule is not adopted in Illinois. McAuley v. Carter, 22 Ill. 53; Korf v. Lull, 70 id. 420. See, also, Leeds v. Burrows, 12 East, 1; Lee v. Hemmingway, 3 Nev. & M. 860; Collins v. Collins, 26 Beav. Ch. 306; Garred v. Macey, 10 Mo. 161; Currey v. Lackey, 35 id. 389; Garr v. Gomez, 9 Wend. 649; Mason v. Bridge, 14 Me. 468; Oakes v. Moore, 24 id. 214; Rochester v. Whitehouse, 15 N. H. 468. Norton v. Gale. Opinion by Schofield, J. Dickey, J., dissented.

NORTH CAROLINA SUPREME COURT AB

STRACT. JANUARY TERM, 1880.*

- It

ARBITRATION WHEN UMPIRE APPOINTED. matters not at what time during the progress of an arbitration the umpire is appointed. It is within the discretion of the arbitrators to appoint him before or after their disagreement. Where a submission to the award of two persons authorized the appointment of an umpire by them, if they disagree, it was held they might choose an umpire before they entered upon the inquiry. Bates v. Cooke, 17 E. C. L. 407. The award is either the award of the umpire or the award of the arbitrators. Take it either way, and it is good. If the appointment of the umpire by the arbitrators is proper at the time he is chosen, then it is his umpirage, and their joining with him will not vitiate; for a mere stranger may join in an award or umpirage without invalidating the proceeding. But if on the other hand the arbitrators have no right to choose an umpire before disagreement, then it would be their award, and the fact of the umpire's joining in it would not vitiate it. In the case of Soulsby v. Hodgson, 3 Burr. 1474, there was a submission to arbitrators with power to choose an umpire, if they could not agree in a certain time. They failed to agree within the limited time, but chose an umpire. The umpire accordingly made an award and the arbitrators joined in it. The court were clear that this was the umpirage of the umpire alone, and held he was at liberty to take what advice or opinion or assessors he pleased. And again, in Beck v. Sargent, 4 Taunt. 232, which was a case where there was a submission to arbitrators to make an award, and if they could not agree within a limited time, then to appoint an umpire. They did not agree within the time, but chose an umpire and then joined with him in his umpirage. Mansfield, C. J., said, what the arbitrators did in making the award was nothing, and the award in law is the award of the umpire alone; it was nothing more than if mere strangers had joined in the award, and could not vitiate. And Heath, J., who sat in the same case, said, it has been decided in very old cases that the circumstance of another joining with

* Appearing in 82 North Carolina Reports.