prisoned had a right to an action for false imprisonment, but no such action would lie against the king, who, according to the old maxim, could not be a wrong-doer, ergo the king could not imprison. Thus he ingeniously endeavored to turn the most despotic maxim of our books against the despot. From this he proceeded to his main argument, viz., that the cause assigned was too general and uncertain, and here we have anticipated the well known case of the general warrants under Geo. III. He strongly urged that so far from "sedition" being an offense known to the law, the word itself in a substantive form was not to be found in any statute or precedent, and quoted many authorities upon the vice of generality. He was followed by Mason, afterward recorder of London, who did little but reiterate Ask's able argument.

For the king, Berkley, Serg't, answered successfully the objection that the sovereign could not imprison, but calling to his aid the ancient writers, Bracton and Britton, he went dangerously far, and sought to establish a general coercive power, laying it down that "in matter of government, to avoid commotion, the king ought to use his coercive power against those that are enraged." "It is a case well known," he said, " that if a house be set on fire every man may pull down the next house for prevention of a greater mischief, so it seems concerning the incendiaries of state, they ought to be restrained lest others should be stirred up by them to the same combustion." Upon the generality of the return he drew a distinction between the certainty needed in a return and in an indictment, and cited the ordinary return upon certain writs, the very name of which amaze our modern ears, such as "the taking of an apostate, the amoving of a leper, the burning of an heretic, and the burning of an idiot," and finally returning to his high coercive notions he urged that the prisoners should be restrained of their liberty, that the commonwealth might not be damnified. Sergeant Davenport followed in the same strain, and upon the close of the argument the case stood over till Trinity Term.

On the first day of Trinity the writs of the other prisoners came up, and for them Littleton (who afterward became chief justice of the Common Pleas, and who, as solicitor general, argued for the crown in the Ship Money case) appeared. Admitting the king's power to commit he proceeded to state, as the main ground on which he relied, a proposition which is, now we apprehend, the fundamental principle in habeas corpus cases, viz., "that no freeman that is imprisoned only for misdemeanor before conviction may be detained in prison without bail, unless it be in some particular cases in which the contrary is ordained by any particular statute." From this he proceeded to examine whether the return disclosed any thing. more than a bailable misdemeanor, and at once fell foul of that unlucky word "sedition." In a lengthy disquisition as to the true meaning of this term he quoted Livy, Taci

tus, a host of passages from the Bible and Bacon's Essay "of Seditions and Tumults," "which whole essay," he kindly says, "deserves the reading," and arrived at the conclusion that sedition was merely a synonym for discord. He next showed, at still greater length, that the word had no different signification in law, and herein bore hardly upon Bracton and his fellows, whom he termed obsolete authors, good for ornament but of no binding authority, and (most fatal objection of all) too prone to follow the civil law. He granted that the cause in the return was not traversable upon 'the present occasion, but contended and cited the reports to prove that there must at least be so much in the return as if false would give the party aggrieved an action in the case. Of Berkley's coercive power he made short work, and as to the house-on-fire illustration "observe the true consequence of this argument—if my house be on fire my neighbor's must be pulled down. Mr. Selden is seditious, ergo Mr. Herbert, his neighbor, must be imprisoned." Finally to the Statute of Westminster, with its provision that a man taken by commandment of the king should not be replivisable, he replied, "as oft as that statute is cited I will always cry out the Petition of Right! The Petition of Right! As the king of France cried out, nothing but France! France! when all the several dominions of the king of Spain were objected to him." No one followed Littleton, the counsel for the other prisoners being content to rely upon his argument.

A few days after the attorney-general, Sir Robert Heath, replied for the king, but signally failed to rebut Littleton's learned and convincing discourse. After boldly claiming that the Petition of Right, being simply a confirmation of the ancient rights and liberties of the subject, did not in any way affect or help the prisoners' case he endeavored to rehabilitate the battered word "sedition." Referring, amongst his other quotations, to the town clerk of Ephesus, "who knew not how to answer for this day's sedition," he observed, in passing, "that he wished the greater ones, to-day, were as circumspect as he was," a remark, which read in the light of the king's ultimate fate, has an application somewhat different from that intended by the learned gentleman. Ultimately flying to his last resort, the pretended coercive power, he closed in this wise: "If any danger appear to you in the prisoners' bailment I am confident that ye will not bail them, but first ye will consult with the king, and he will show you where the danger rests."

The court, to their credit, did not act in accordance with Mr. Attorney's suggestion. Timid they undoubtedly were, as the sequel will show, but neither so servile nor corrupt as certain historians have since represented then. Had they then held their patents, as now, quamdiu se bene gesserint, we are inclined to think there would be little fault to find with their decisions, and till we are ourselves perfectly indifferent to considerations of place and income we ought to have a little charity for their

moral cowardice. They fixed a day for judgment, and there seems to have been little doubt what their decision would be. The king at any rate felt uneasy, and resorted to the expedient of transferring the prisoners to the Tower, sending an explanatory letter to the judges. In this he told them that he purposed that none of the accused should come before them "until we have cause given us to believe they will make a better demonstration of their modesty and civility, both toward us and your lordships, than at their last appearance they did." Beneath this velvet sheathing the trembling justices felt the impending sword, and on the appointed day, no prisoners of course appearing, they refused to give judgment, alleging that it would be to no purpose to do so, as the prisoners being absent could neither be bailed, delivered or remanded. Accordingly the nine members remained in durance throughout the long vacation.

Toward Michaelmas the king sent for the chief justice, who attended by one of his puisne justices, the distinguished Whitlock, waited upon him, and in reply to his pressing questions informed him that the judgment of the court would be to bail the prisoners, subject to their giving security for their good behavior. Although not too well pleased, Charles put on a smiling face, telling them that "he would never be offended with his judges, so they dealt plainly with him, and did not answer him by oracles and riddles."

On the first day of term, Mason, of counsel for the members, moved for judgment, and was informed of the decision of the court. The prisoners however were now in the mind of St. Paul at Philippi, and by no means willing to secure their liberty by compromise. Mr. Selden, speaking for all, demanded to be bailed in point of right, "if it be not grantable of right we do not demand it,' said he. Serg't Ashley offered his own bail for his son-in-law, Hollis, but Hollis refused to join in the bond, and Long, whose sureties for good behavior were actually in attendance, discharged them and cast in his lot with his brethren. Thus they all cheerfully returned to prison, esteeming loss of liberty a lighter thing than voluntary surrender of their rights. The victory was theirs, and although some died in prison, none were conquered. Doubtless they looked for speedy deliverance from Parliament, but for ten years no Parliament was summoned. Their captivity became gradually relaxed, and at length merely formal, and when at length the king was compelled to call his commons together, and the famous Long Parliament met, their turn came. That Parliament forgot no old scores, and in the midst of all its pressing labors found time to recompense the sufferers of 1629. Each survivor received £5,000, and to the deceased Sir Miles Hobart a monument was erected. The noble freedom which our race on both sides of the Atlantic enjoy to-day remains the common monument of all its builders, amongst whom are numbered our nine members.

BANKRUPTCY-DISCHARGE-ACTION BY BANKRUPT AFTER.

VERMONT SUPREME COURT.

LAFOUNTAIN V. SAVINGS BANK.*

Uncollected usury does not pass to the assignee in bankruptcy, and it may be collected by the debtor after his discharge in a suit in his own name.

A debtor, after his discharge, may sustain an action in his own name to recover money paid under a mutual mistake, the assignee having settled the bankrupt estate without attempting to enforce the claim, and the statute of limitations having run so that it would be a bar to a second suit in behalf of the creditors.

ASSUMPSIT in common counts. Plea, general is

sue, with an agreed statement of facts. Trial by court, September Term, 1880, Chittenden county, Pierpoint, C. J., presiding. Judgment for the plaintiff The action was to recover for usury, and for money paid by a mutual mistake to the defendant. Pay ments of the usury and by mistake were admitted. Afterward the plaintiff was adjudged a bankrupt by the United States District Court, and an assignment of all his estate was made to the assignee in conformity with the provisions of the United States Bankrupt Act.

Thereupon the assignee aforesaid undertook and proceeded with the administration of said trust; but made no claim, nor attempted to collect of the defendant any of the aforesaid overpayments of interest; and never knew of said two payments so made as aforesaid by mutual mistake; and neither party discovered the same until after the bringing of this suit. The assignee settled the estate, and after paying some forty cents on the dollar to the creditors, was discharged. The

plaintiff received his discharge from the court.

William G. Shaw, for defendant.

tion.

W. L. Burnap and E. R. Hard, for plaintiff. Ross, J. The exceptions, on the facts agreed upon by the parties, present two questions for considera1. Did the uncollected usury paid by the plaintiff to the defendant before the adjudication of bankruptcy, pass under the late general bankruptcy law to the as signee of the plaintiff? The solution of this question depends mainly upon the wording of the statute of Vermont in regard to usury, and the decisions of the court construing and interpreting that statute. The language of the bankrupt act is broad and comprehensive; and probably the language, "all his rights of action for property or estate, real or personal, aud for any cause of action which he had against any person arising from contract, or from the unlawful taking or detention or injury to the property of the bankrupt," is broad and comprehensive enough to include usury as it exists under most of the State laws. Many decisions, both by State and United States courts, cited by the defendant's counsel, have ad judged that usury under the statutes brought under consideration passed to the assignee, and that he alone had the right to recover it for the benefit of the estate of the bankrupt. In some of the cases the statute did not give the right to recover the usury paid to any one in terms. This is the case under the National Banking act. In other cases the statute gave the right to recover to the person paying the usury or to his legal representatives. These decisions furnish but little aid in determining whether usury under our statute passes to the assignee in bankruptcy. The language of our statute confines the right *To appear in 56 Vermont Reports,

to recover back usury to the person paying the same. The decisions have never extended this right beyond such person. It was early held that it could not be attached by trustee process. Barker v. Esty, 19 Vt. 131. As this process is the only one by which a creditor can avail himself of uncollected usury, this decision places it beyond the reach of the creditors of the person paying it. If the creditor cannot, while the person paying usury is solvent, avail himself of it in satisfaction of his debt, it is difficult to comprehend how, when he becomes insolvent, his assignee can avail himself of it for the benefit of the creditors of the bankrupt. In this early leading case usury is held, not to be a debt or credit of the person who has paid it, intrusted or deposited in the hands or possession of the person receiving it, but rather a personal statutory right given to the person paying it to redress a wroug personal to himself, and to punish the person receiving it, for the commission of the wrong, as a part of the police regulations of the State; in legal essence a tort, as for money extorted by duress, in form of remedy ex contractu-assumpsit for money had and received, or goods sold and delivered. Whether he will enforce the remedy, redress the wrong, and recover back the money paid as usury, is at the option and election of the person against whom the wrong has been committed, the person paying the usury. Low v. Prichard, 36 Vt. 191. The statute against usury is for the protection of the borrower only. Austin v. Chittenden, 33 Vt. 553. Money paid as usury, eo nomine, that is, when it is not included in the security, nor paid as a part of the debt,a surety cannot avail himself of, in reduction of the debt. Ward v. Whitney, 32 Vt. 89; Churchill v. Cole, id. 93. For recent cases holding that the right to recover usury is strictly personal, and confined to the person paying the same, see Cady v. Goodnow, 49 Vt. 400; Reed v. Eastman, 50 id. 67; Lamoille County Nat. Bank v. Bingham, id. 105; Spaulding v. Davis, 51 id. 77; Richardson v. Baker, 52 id. 617. There is an unbroken line of decisions of this court, in whatever light and form the question has been presented, holding that the right to recover back usury is strictly personal, confined to the payer.

The language of the National bankrupt law of 1841 in regard to what property of the bankrupt passed to the assiguee was quite as broad and comprehensive as that of the recent bankrupt law. In its language "all property and rights of property of every name and nature, whether real, personal or mixed," of the bankrupt passed to the assignee. Under this act Judge Prentiss, as United States District judge, held that uncollected usury, under the statute of this State, passed to the assignee of the bankrupt. Moore v. Jones, 23 Vt. 739. This decision was rendered in 1848. The year following the same question came before this court in Nichols v. Bellows, 22 Vt. 581, and on full consideration it was held that it did not pass to the assignee. This latter decision has been recognized and approved, although the question was not then before the court, in Churchill v. Cole, 32 Vt. 93; Low v. Prichard, 36 id. 191; Ewing v. Griswold, 43 id. 400; Streit v. Waugh, 48 id. 301.

The opinion in Nichols v. Bellows was delivered by the then Chief Justice Royce, who 'with his usual clearness and force, in speaking of the language of the bankrupt act of 1841, above quoted, and of usury as existing under our statute, characterizes them in the following language:

"This sweeping enactment undoubtedly extended to everything which would go to make up a full inventory of the bankrupt's estate-all his means consisting of tangible property and rights of property, which could be expected to be made available for the payment of debts. But the right to sue for torts is not a right of property in any such sense. It is simply a

right of redress which is personal to the party injured, and which he may decline to enforce at his election; and though the statute has given a form of action in assumpsit by which a party who has paid usury may recover it back, yet this remedy, in legal contemplation, is no less a mode of redressing an injury caused by personal wrong and oppression than if the action sounded wholly in tort."

The construction thus placed upon the statute in regard to usury by the highest court of the State, and adhered to for so many years, is not only binding upon this court and the citizens of the State, but upon the Federal courts. The Federal courts have by repeated decisions acknowledged the binding force and effect of the decisions of the highest State court in construing the statutes of its own State when such decisions had been uniformly the same way. The only decisions of this court which in tendency and holding are claimed not to be uniform with the cases already cited are Roberts v. Burton, 27 Vt. 396, in, which it is held that a claim for usury survives against the estate of the party recovering it, and Ewing v. Griswold, 43 Vt. 400, in which it is held that usury paid may be pleaded in set-off to an action on contract. The latter decision can well be placed upon the ground that its allowance would produce no incongruity in pleading, the remedy prescribed for the recovery back of usury being assumpsit or contractwise, though for the redress of a tort in essence. The former decision is placed upon the common ground that the receipt of the usury has increased the assets of the estate, and so survives the debt of the intestate. Neither decision gives a character to usury different from that stated in Nichols v. Bellows, supra. Whatever may have been decided by other courts in regard to usury under other statutes passing to the assignee under the late bankrupt law, we adhere to the doctrine announced in Nichols v. Bellows, supra, that right to recover back usury under the provisions of the statute is but a right to redress a wrong personal to the party paying it, to be exercised or foregone at his option alone, and did not pass to the assignee under the provisions of the late National bankrupt law. It is not a right of action, arising "from the unlawful taking, detention or injury to the property of the bankrupt," but a right to redress a personal wrong, which the bankrupt alone can exercise. On these views the plaintiff is entitled to recover in his own name the amount which the parties have agreed he paid the defendant, as interest in excess of six per cent.

2. The other question presented is, can the plaintiff, on the facts and circumstances detailed, recover for the money which he paid to the defendant by mutual mistake prior to the time he was adjudged a bankrupt? This is a claim for money or property, the right, title and estate to which, by the adjudication in bankruptcy, vested in and passed to the assignee. Immediately upon the payment of the money by mutual mistake the law implied a promise from the defendant to repay it to the plaintiff. The right to recover this claim therefore accrued to the plaintiff. The question is, is the plaintiff on the facts and circumstances of this case barred from the exercise of this right? The defendant contends that he is; that inasmuch as the "title and estate" to this claim by the adjudication in bankruptcy passed to the assignee, he alone, until he has parted with the claim, can exercise the right to recover back the money. The industry of the defendant's counsel has produced a large number of cases, both English and American, in which it has been held that the assignee was the proper, and the only proper party to recover such a claim. In nearly all the cases cited the assignee was in the active exercise of the functions of his office. In some the bankrupt had commenced a suit on the

ground that the claim did not pass to the assignee,and the question was who was the proper party to prosecute the suit? To whom did the claim belong? A careful examination of all the cases cited by the defendant's counsel on this point, with certain exceptions hereinafter noticed, shows simply this and nothing more, that if the claim in contention passed to the assignee, and the defendant plead the adjudication in bankruptcy, the appointment of the assignee, and that the claim passed to him, standing on that plea, the defendant was entitled to judgment. The defendant's counsel contends that after the adjudication of bankruptcy such claims must be prosecuted in the name of the assignee.

It is evident however that the defendant's implied promise in this case, and wherever the action is upon a contract and an actual promise, such promise is to the bankrupt. On general principles it would not seem that the defendant should be allowed to object to such promise or contract being enforced in the name of the person to whom he actually or impliedly made it, provided he could be protected against a re-enforcement of it.

In Cook v. Lansing, 3 McLean, 571, cited by defendant's counsel, it is said: "But all suits commenced after the appointment of the assignee should be brought in his name, or at least prosecuted for the benefit of the creditors whom he represents." It is the right of the assignee to have the avails of the claim to distribute among the creditors of the bankrupt. If the assignee elects to collect it in the name of the bankrupt, what legal objection can the defendant raise? His legal obligation is to pay it to the bankrupt in the first instance, but the bankrupt law intervenes and declares that the title and estate therein shall vest in the assignee for the benefit of his creditors in the first instance, and the surplus, if any, for the benefit of the bankrupt.

If A. holds a non-negotiable claim against B., and sells it to C., and C. notifies B. of such purchase, by such sale all the title and estate in such claim passes to C., and B. thereafter can legally discharge it only by payment to C. C. could not, as the assignee in bankruptcy can, sue the claim in his own name, but by the sale took the right to enforce it in the name of A. He also conferred upon B. the right and legal duty to pay it to C., and he could insist that A. should not enforce it in his own right. Because the title and estate in the claim in contention passed to the assignee, and by force of the bankrupt law the assignee was empowered to bring a suit upon it in his own name, it does not follow that the defendant was thereby clothed with the right to object to its enforcement in the name of the plaintiff, except that it should be so enforced that it could not again be enforced against him in the name of the assignee. Suppose the claim is burdened with an onerous condition, so that it is doubtful if any thing will be gained to the estate by its enforcement, or that it is of a doubtful character, and the assignee refuses to accept the burden or to incur the expense of the litigation, and for that reason renounces his right to the claim, is it in the power of the defendant to say that his duty or contract obligations to the bankrupt are thereby discharged, and that the bankrupt is barred from calling on him in that behalf?

In the well-considered case of Amory v. Lawrence, 3 Cliff. 527, Judge Clifford, speaking on this subject, says the bankrupt's "title, in case of onerous property where the assignee elects not to take it into possession, is good against all the world, except the assignee or some one to whom he conveyed the property." Smith v. Gordon, 6 Law Rep. 317 "All property and rights of property belonging to the bankrupt, unquestiona

bly pass by force of the decree in bankruptcy to the assignee by operation of law, and become vested in him as soon as he is appointed. But though the legal title passes to the assignee, he is not bound, said Judge Ware, to take possession of all property. Leasehold estates pass to the assignee under the English bankrupt laws; but the assignee is not bound to take the lease and charge the estate with the payment of the rent as the rent may be greater than the value of the lease, and thus the estate may be burdened instead of being benefited; and in such a case the claim may be abandoned by the assignee. He is not bound in such a case to take the property; it remains in the bankrupt; and no one certainly, except the assignee, has a right to dispute his possession. Copeland v. Stephens, 1 Barn. & Ald. 603; Fowler v. Down, 1 Bos. & Pul. 44." *

*

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"Robison says it has long been a recognized principle of the bankrupt law that the assignees of a bankrupt are not bound to take property of an onerous or unprofitable character, or property which will be a burden instead of a benefit. They are on that subject regarded as being in a very different position from that of the executors of a deceased testator, as the former take the property by operation of law, while the latter claim title through their testator, and are bound to perform his obligations to the extent of his assets. Robison's Bankruptcy, 822. Where the assignee elects not to take the rights of the bankrupt, and charge the estate with the burden of uncertain litigation, the right, whatever it is, survives in the bankrupt, and some of the authorities hold that it may be pursued by any creditor not a party to the proceedings in bankruptcy. Smith v. Gordon, 6 Law Rep. 317. Persons acting as assignees in such a case are required to elect within a reasonable time; and the rule is that if they refuse to elect when required to do so it is deemed an election to reject the estate. Lawrence v. Knowles, 5 Bing. (N. C.) 399; Carter v. Warne, 4 C. & P. 191; Graham v. Van Dieman's Land Co., 11 Exch. 101; Ex parte Brand, 1 Dea. 321; Tuck v. Fyson, 6 Bing. 321." The authorities cited fully sustain the doctrine announced by the learned judge.

This doctrine has been followed and applied in Towle v. Rowe, 58 N. H. 394, and Ramsey v. Fellows, id. 607. It shows that both under the English and American bankrupt laws the right to enforce a contract or legal duty in the name of the bankrupt is not taken away by the adjudication in bankruptcy and the appointment of an assignee; that this still exists so far as the defendant is concerned or interested by contract or legal duty and obligation, and that the defendant is only concerned, and has the right to be protected against the danger of being subjected to two suits and a double payment of the claim transferred by operation of the bankrupt law to the assignee. When that danger has passed his right to object to a suit in the name of bankrupt is gone. This is consonant with the decision of this court in Udall v. School District, 48 Vt. 588, in which it is held that on the sale of a nonnegotiable claim by the assignee to the bankrupt, the bankrupt could maintain a suit thereon in his own name. As the bankrupt law did not make a non-negotiable claim negotiable, even in the hands of the assignee, but simply empowered him to sue it in his own name, when the assignee's right to the avails of the claim became extinguished as between him and the bankrupt, the right of the defendant to object to a suit in the name and for the benefit of the bankrupt also ceased. None of the cases cited by the defendant's counsel contravene the doctrine announced by Judge Clifford, supra; but some of them recog nize it.

In Gay v. Kingsley, 11 Allen, 345, Chapman, J., says: "He (the bankrupt) might hold it (the note) as his own

if the assignee, with knowledge of its existence, declined to claim it."

In Smith v. Chandler, 3 Gray, 392, it is in substance conceded that a suit could be begun and prosecuted in the name of the bankrupt, "with the consent and for the benefit of the assignee," but that the case did not show such assent. The cases strongly relied upon by the defendant do not discuss nor consider what the right of the bankrupt would be if it were shown that the assignee had waived his right to prosecute the claim, or that the defendaut had in any other way been placed in circumstances so that the danger of a second payment of the claim being enforced by the assignee was passed.

In Nash v. Nash, 12 Allen, 345, the interest of the bankrupt in the demanded premises was included in his schedule of property, filed in the proceedings in bankruptcy, and it was not shown whether the assignee realized any thing from it, or in any way availed himself of it. It was held the bankrupt could not maintain the action.

In Parks v. Tirrell, 3 Allen, 15, it is held that the right of the plaintiff became vested in the assignee, and nothing was shown by which it had been conveyed to any other person, and that if the right became barred by the statute of limitations while vested in the assignee, from prosecution by the assignee, it thereby became barred from subsequent prosecution by the plaintiffs.

Griswold v. McMillan, 11 Ill. 590, decides that the bankruptcy of the plaintiff is a good defense to an action in his name when he produced the note on which the action was founded, and showed no other facts. Robinson v. Denny, 57 Ala. 492, so far as regards the question under consideration, holds that it is for the bankrupt court to determine the surplus which the assignee holds, if any, in trust for the bankrupt, and until such decree the title remains in the assignee, and if the surplus consists of rights of action, he alone can maintain suits founded on them. None of these cases, urged especially by the defendant's counsel, consider the question discussed by Judge Clifford; nor do they decide any thing in conflict therewith.

The remaining question is, do the facts of this case bring it within the principle which allows the bankrupt to maintain the suit for a recovery for his money paid by mutual mistake? The fact that the assignee has settled his account and been discharged by the bankrupt court does not remove the danger of a second payment of the claim from the defendant, as a new assignee doubtless could be appointed at the instance of the creditors who have not been paid iu full; nor does the failure of the assignee to prosecute the claim while in office; for neither he nor the bankrupt then knew of its existence. But it further appears, and is not disputed by the defendant, that the claim has now become barred by the statute of limitations, if an assignee should now be appointed to prosecute the same. This suit however was commenced in season to save the statute bar as to the plaintiff. As by the lapse of time the defendant has now a full defense against a suit in favor of any assignee whom the creditors may have appointed, upon principle and authority the right to maintain the suit in the name of the bankrupt, which never was lost, exists, and may be exercised by the bankrupt in his own favor. If any sure remedy remains to the creditors of the plaintiff to avail themselves of this claim, it is by coming into this suit, and on equitable principles in regard to sharing in the expense of its prosecution, by being allowed to take the avails of this claim. This doubtless could be done. But the suit has now been pending a long time, with all the facts in regard to this claim spread upon the record, and no move been made by the creditors for

the appointment of another assignee, nor to be allowed to come into this suit and take the avails of this claim. Their failure to act is a practical renunciation of the claim or any right to it.

The defendant having ample means of protecting itself against a repayment of the claim, the neglect and non-action of the plaintiff's creditors under the circumstances of this case do not call upon the court to delay judgment in favor of the plaintiff, that they may be notified, and formally renounce all right to the claim, as was done in cases reported in 58 N. H. Judgment affirmed.

James Brizzolara, for city, appellant.
Duval & Cravens, for appellee.

EAKIN, J. Mary McKibbin, the owner of a half block of land in Fort Smith, which she occupied in solido as a residence under inclosures, applied in chancery and obtained a perpetual injunction upon the city authorities, restraining them from proceeding to open an alley through the premises.

The city claimed the alley as having been dedicated to city uses, and as being already subject to its control, and was about to proceed to remove the obstructions. Although the terms of the injunction were general, the decree was not intended, and will not have the effect to preclude the city from hereafter opening an alley there, in the proper exercise of its powers, as in the case of a new alley, if the public convenience should require it. The city appeals.

The facts of the case are simple. The blocks of the city are 300 feet square, with a street upon every side. They are divided each into twelve lots, fronting, six each, upon opposite streets and running back to a twenty foot alley, which runs between the two ranges of lots. These lots are numbered from 1 to 6 on one side, and reversely from 7 to 12 on the other side. The appellee owned and occupied lots 4, 5, 6, 7, 8, 9, which composed a half of the block, taken across the supposed alley. The other half of the block was owned by two others, having each a quarter of the block on the other corners. They had also taken each a portion of the alley into their inclosures, so that there was really no passway there. None of the parties needed or desired one.

The alley, according to the plat of the town, extends straight for a long way each side through blocks in the same range, and was not in any other way obstructed. The portion of the town in which the block lies was not thickly built; the streets were unobstructed, and it is clear enough, from the evidence, that there was no public necessity for the alley. It does not in any way appear that it would have been the slightest convenience to any one whatever. It does appear that to open it would, in a great measure, destroy the utility and comfort of the premises as the appellee's home.

The blocks, lots, streets, and alleys had been mapped and platted by the original owner of the site of Fort Smith, which plat had been accepted by the city as

*S. C., 41 Ark. 45.