flicted. Purchasers might therefore well anticipate a cessation of all injurious operations, or rely on their right to enforce such cessation, unless a prescriptive right to operate had been acquired.

But in this case, the injury is not inflicted by the operation of the raceway, as was ingeniously argued. The rush of water may increase the hazard, but does not cause the public injury. That is the result of the depression of the ground immediately beside the highway. Injury would still be caused, though not, perhaps in the same degree, if not a drop of water ran in the raceway.

The question then recurs whether under the circumstances disclosed in this case, defendant is liable for a breach of a duty owed to the public, in not altering the condition in which the land adjoining these streets was at the time of dedication and acceptance, or for not guarding the public against a danger to which those passing the streets were exposed the moment the streets became public.

Dedication of land to the public may be so made as to indicate the specific public use which is intended, as for a public park or square. The use may be restricted to a particular mode of passage, if it be a way, as for a foot-path, in distinction from a way for wagons, etc. Acceptance of such a dedication would be limited to the use designed. Any use by the owner, not conflicting with the public use designed, would therefore be no obstruction of the public right. So it has been held that a dedication of a foot-path might be made subject to the owner's right to plough up the soil, in the usual course of husbandry, and that such ploughing would not be an interference with any public right. Mercer v. Woodgate, L. R., 5 Q. B. 26.

Land dedicated and accepted for public use as a way has universally been considered, with respect to its condition within the lines of the way, as taken by the public cum onere. It devolves on the public to adapt it to public use, and to guard the safety of public passage. If a natural ravine, or even an artificial excavation crosses it, or a ledge of rocks intercepts passage, no one pretends that the land-owner is to bridge the ravine, fill up the excavation or remove the ledge, or be liable for maintaining an obstruction in the highway. If the ravine or artificial excavation carry water for his use, the case is in no respect altered.

There is nothing to controvert this doctrine-which is universally recognized and adopted in practice-in the cases of State v. Dean, 3 Zab. 335, and State v. Atlantic City, 5 Vroom, 99. In those cases, dedicated streets had been improved, and the expense had been imposed on the adjoining land-owners, who had in fact dedicated them. It was held that in respect to the expense of such improvements, the dedicating land-owner stood on the same footing as others. The city assumed the burden of making the improvement, but thereafter imposed the expense on all adjoining land-owners, in conformity to the provisions of the charter. The obligation of the public was to that extent modified by the particular law.

The charge in this indictment is of a public nuisance, in the nature of an obstruction to the streets named. The obstruction is not indeed within the lines of the streets, but the theory on which the indictment was supported is that the excavation complained of is so near the highway as to be dangerous to those carefully passing thereon. Can the duty of defendant, in regard thereto, be greater than its duty in regard to an excavation within the lines of the street so dedicated? In my judgment, it cannot be. At the time the public right was acquired, the land was in the identical condition it now is. The dedication must be considered to have been made and accepted subject thereto. If the public ought to be protected against danger there

from, the duty is devolved, not on the defendant, but on the public authorities.

This view has been adopted in several cases in point, and no contrary decision has been cited or discovered by me.

In the two cases of Fisher v. Prowse and Cooper v. Walker, which were argued and decided together, and are reported in 2 B. &. S. 770, Blackburn, J., in delivering the opinion of the court of Queen's Bench, uses the following language: "But the question still remains whether an erection or excavation already existing, and not otherwise unlawful, becomes unlawful when the land on which it exists, or to which it is immediately contiguous, is dedicated to the public as a way, if the erection prevents the way from being so covenient and safe as it otherwise would be, or whether, on the contrary, the dedication must not be taken to be made to the public and accepted by them, subject to the inconvenience and risk arising from the existing state of things. We think the latter is the correct view of the law. It is of course not obligatory on the owner of land to dedicate the use of it as a highway, to the public. It is equally clear that it is not compulsory on the public to accept the use of a way when offered to them. If the use of the soil as a way is offered by the owner to the public, under given conditions and subject to certain reservations, and the public accept the use under such circumstances, there can be no injustice in holding them to the terms on which the benefit was conferred. On the other hand, great injustice and hardship would often arise, if when a public right of way has been acquired under a given state of circumstances, the owner of the soil should be held bound to alter that state of circumstances to his own disadvantage and loss, and to make further concessions to the public, altogether beyond the scope of his original intention."

The case of Fisher v. Prowse was considered and approved in Robbins v. Jones, 15 C. B. (N. S.) 221, in which similar questions were presented.

In Cornwell v. Metropolitan Commissioners, etc., 10 Exch. 771, it was held that public officers managing a system of sewers were not obliged to guard an ancient ditch, used by them for sewer purposes, although lying immediately adjoining a public high

way.

These cases were also approved in Mercer v. Woodgate, L. R., 5 Q. B. 26; Arnold v. Blaker, L. R., 6 Q. B. 433; St. Mary's, etc., v. Jacobs, L. R., 7 Q. B. 47, and Arnold v. Holbrook, L. R., 8 Q. B. 96.

My conclusion therefore is, that defendant was entitled to have the evidence respecting the dedication of these streets submitted to the jury, for it afforded a defense to the indictment.

Whether the duty of guarding this raceway would have been imposed on defendant if the streets had been acquired, not by dedication, but by condemnation, is a question not directly presented, and not necessary to be determined.

For the reason above mentioned, the rule for a new trial should be made absolute.

This conclusion renders unnecessary the consideration of the other reasons urged by defendant for a new trial.

Dixon, J., dissented.

DISBARRING ATTORNEY.

ILLINOIS SUPREME COURT, MARCH, 1883.

PEOPLE EX REL. HUGHES V. APPLETON.* Although the general rule is, that an attorney-at-law will not be disbarred for misconduct not in his professional capacity, but as an individual, there are cases forming an

*Appearing in 105 Illinois Reports.

receive the title in trust by conveyance from Mr. Bryan. He said that he would gladly serve me in the matter, and accept the title in trust." Thus it will be seeu that the deed was not made under any legal advice from respondent, but relator had, of himself, determined upon it beforehand. It was a very simple matter, the having of a deed for land made in another person's name, not giving occasion for legal advice, and relator not needing it from respondent, they both being attorneys, and the relator some fifteen years the senior in the practice of law. To hold a title in one's own name requires no skill of an attorney. There had been no previous relation of attorney and client, and that which arose between the parties from the transaction in question we regard as not being the relation of attorney and client, but that of trustee and cestui que trust.

It is remarked upon as showing professional employ. ment, that respondent charged a fee of $10 to relator on the books of Rogers & Appleton, attorneys-at-law, for the business he did the day he accepted the trust. Without going through with it, we will say that Mr. Rogers' explanation how this charge came to be made several months afterward, is satisfactory to us that little significance should be attached to this as evidence of the rendering of professional services. Mr. Rogers says distinctly that they never had an account with relator.

From an examination of all the testimony, we can come to no other conclusion that that respondent accepted this trust, not as an attorney-at law, but simply as an individual, and that whatever of wrongful conduct there may have been, it was but that of any ordinary trustee, and not professional misconduct in the office of an attorney-at-law. In a similar proceeding against an attorney, in People v. Allison, 68 Ill 151, this court said: "If respondent has been guilty of the misconduct alleged against him, in his private character, and not in his official capacity as an attorney, relief can only be obtained by a prosecution in the proper court, at the suit of the party injured. He can not be tried, on motion, in this summary manner." There are many authorities for the support of the doctrine thus laid down. Among them we refer to Ex parte Aitkin, 4 Barn. & Ald. 47; Cocks v. Harman, 6 East, 404; Matter of Dakin, 4 Hill, 42; In re Husson, 26 Hun, 130; Matter of Haskin, 18 id. 42.

We think the present comes within the class of cases above referred to, wherein the exercise of this summary jurisdiction would not be entertained where the misconduct alleged was not in the employment as attorney. But though such be the general rule, it is not to be held that there are no exceptions, - that there are not cases where an attorney's misconduct, in his private capacity merely, and not in his official capacity, may be of so gross a character that the court will exercise the power of disbarment. There is too much of authority to the contrary to say that. Is the present case one of such character?

As the case is presented on the part of the relator it is quite an aggravated one, but there are favoring circumstances for respondent which mitigate the case as thus presented. The misconduct alleged is in the mortgaging of the property, the making sale of it, and withholding the proceeds upon the pretext of the Pease suit, fraudulently got up, as alleged, by the respondent himself, for that purpose. There is no question that respondent made disbursements and incurred liabilities in respect of the property. Plans and specifications for building were made and changed, and different architects engaged in the matter. Successive loans for building were negotiated for by different brokers. Liabilities were thus incurred by respondent, he being the ostensible owner. One archi tect was threatening him with a suit for $100. Some

$164 of taxes were paid by respondent. Very much of respondent's time during some five months was occupied by relator in relation to the matter,-so much of it, Mr. Rogers testifies, that he required that respondent should allow the firm $500 for the amount of time which had thus been taken from the firm's business; that this was done and respondent was charged for that amount on the books,-not as being the amount which relator should pay, but as the sum which, as between themselves, should be charged against respondent. There was evidence, coming from the relator himself, that he agreed to pay respondent for his services, and some evidence tending to show that it should be suitable compensation for a lawyer's time thus occupied. Upon the hypothesis of such an agreement, and the amount of time spent, which there was disinterested evidence tending to show was spent, respectable witnesses testified that the compensation should be $1,000 or more. As to such compensation, if any were due, there might honestly be quite a difference of opinion. It can not be said that the claim of respondent was wholly baseless. It was a just one for some amount, and if nothing could be obtained from relator upon it, and respondent stood in need of the money, and informed relator that he would secure himself on the property, the resort afterward to a mortgage upon the property of $1,500, for the purpose of securing his pay, however unjustifiable it might have been, can not be pronounced to be a transaction of such moral turpitude as to demand respondent's expulsion from the bar, as being unfit to practice his profession. Wrong conduct there may have been, and not the corrupt intent charged.

As to the sale of the lot, independent of respondent's testimony that it was with the approval of relator, there is evidence that respondent was making efforts to sell the lot with relator's concurrence. There is in the case a letter from respondent to relator, of date December 13, 1879, saying: "Your price for selling I find too high for the market. Shall I reduce it to $4,500? Why don't you come in?" Respondent's excuse for selling the lot as he did, was that he had just before received a letter from Mr. Wakeman, the solicitor for complainant in the Pease cause, threatening suit on the Roberts claim; that he made an ineffectual effort to see relator, and thought it best for the protection of the property to make sale of it, as he did, without any delay. Wakeman was a witness, and he is not inquired of as to the sending of such a letter, so we think it may be taken that such a letter was sent. As to the lot being sold at a greatly inadequate price, as claimed, several witnesses testify that it was sold for its market value. We can hardly say there was corrupt conduct in making this sale.

As to respondent having caused the Pease suit to be brought for the fraudulent purpose alleged, all the evidence thereof seems to be the quickness with which the bill was filed after the sale, being on the next day, and its being drawn by Mr. Burrows, and then brought to Mr. Wakeman, who signed it as solicitor; and the latter would seem to have had no other connection with the bringing of the suit than thus signing the bill. From bringing the suit so soon after the sale, it requir ing considerable time to prepare such a bill, it might be a just inference that Burrows or Pease had notice that the sale was to be made, some time beforehand, but there would be no proper inference of any thing further. Mr. Burrows had some relation of intimacy with respondent, having had employment in the office of Rogers & Appleton for some of the time during the summer and fall of 1879. These were suspicious circumstances, but they do not amount to the satisfactory evidence which is required in such case of the charge alleged, that this Pease suit was all a sham and fraudulent contrivance on the part of respondent to

When the legislative department removed the inhibition imposed, as well by statute as by the public policy of the State, upon the execution of a contract like this, it cannot be said that such legislation, although retrospective in its operation, impaired the obligation of the contract. It rather enables the parties to enforce the contract which they intended to make. It is in effect, a legislative declaration that the mortgagor shall not, in a suit to enforce the lien given by the mortgage, shield himself behind any statutory prohibition or public policy which prevented the mortgagee, at the date of the mortgage, from taking the title which was intended to be passed as security for the mortgage debt. It was said in Satterlee v. Matthewson, 2 Pet. 412, and in substance, in Watson v. Mercer, 8 Pet. 110, that "it is not easy to perceive how a law, which gives validity to a void contract, can be said to impair the obligation of that contract." The doctrine of those cases was approved, at the present term, in Ewell v. Daggs, when it was said, touching legislation of this character, that the right of a defendant to avoid his contract is given by statute, for purposes of its own, and not because it affects the merits of his obligation; and that whatever the statute gives, under such circumstances, as long as it remains in fieri, and not realized by having passed into a completed transaction, may, by a subsequent statute, be taken away. It is a privilege that belongs to the remedy, and forms no element in the rights that inhere in the contract. The benefit which he has received as the consideration of contract, which, contrary to law, he actually made, is just ground for imposing upon him, by subsequent legislation, the liability he intended to incur." Gross v. United States Mortgage Co. Opinion by Harlan, J.

[Decided May 7, 1883].

CRIMINAL LAW-SELLING SPIRITS IN INDIAN RESERVATION-REVENUE LICENSE NO DEFENSE. - It is not a defense to a prosecution under a Federal statute forbidding the introduction of spirituous liquors into the Indian country under a penalty that the person prosecuted had at the time paid a tax assessed under the United States internal revenue laws for the busiuess of selling liquors within the district of which such Indian country formed a part. The establishment of the collection district, embracing the territory, whilst providing for the collection of taxes on certain kinds of business, did not authorize, nor was it intended to authorize, business which was otherwise specifically forbidden. The License Tax Cases, 5 Wall. 462, do not conflict with, but rather support, this view. They merely decide that the licenses of the United States for selling liquors and dealing in lotteries exempted the party from the penalties of the revenue law to which he would otherwise be subjected. They gave no exemption from State laws or the taxes they imposed for the business carried on. They conferred no authority by themselves to carry on any business within a State. They were in the nature of taxes on the business which the State permitted. The court said that if the licenses were to be regarded as giving authority to carry on the branches of business which they licensed it might be difficult, if not impossible, to reconcile the granting of them with the Constitution. "But," he added, "it is not necessary to regard these laws as giving such authority. So far as they relate to trade within State limits they give none and can give none. They simply express the purpose of the government not to interfere by penal proceeedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for non-payment of taxes. The granting of a license therefore must be regarded as nothing more than a mere form of impos

ing a tax and implying nothing except that the license shall be subject to no penalties under National law if he pays it." Though these cases are cited by the defendant, they affirm the doctrine that the licenses under the then existing law, being designed merely to secure the payment of taxes to the United States, did not interfere with other legitimate regulations of business nor sanction it where otherwise prohibited. The case of Cherokee Tobacco Tax, 11 Wall. 616, cannot be treated as authority against the conclusion reached. The decision only disposed of that case, as three of the judges of the court did not sit in it, and two dissented from the judgment pronounced by the other four. United States v. Forty-three Gallons of Whiskey. Opinion by Field, J. [Decided May 7, 1883.]

LIFE INSURANCE — INSURABLE INTEREST-PARTNER HAS IN LIFE OF CO-PARTNER- AMOUNT OF INTEREST.

L. and D. were partners. Each had agreed to contribute one-half the capital but L. had furnished the entire capital, over $10,000, D. never contributing his portion. In consequence of dissatisfaction it was agreed that D. should procure a policy of insurance on his life for the benefit of L. An application was made, signed by L. and D., in which L. stated that he had an interest in the life of D. to the amount of $10,000, and a policy was issued by a company for that amount for the benefit of L. on the life of D. Held, in view of the wording of the policy, that the words therein, "the assured," apply to the party for whose benefit the policy was issued, that was L. Held, also that L. had an insurable interest in the life of D. As this court said in Warnock against Davis, recently decided: "It is not easy to define with precision what will, in all cases, constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be stated generally however to be such an interest arising from the relations of the party obtaining the insurance, either as creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation. But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the assured." 104 U. S. 779. Certainly L. had a pecuniary interest in the life of D. on two grounds: because he was his creditor and because he was his partner. The continuance of the partnership, and of course, a continuance of D.'s life, furnished a reasonable expectation of advantage to himself. It was in the expectation of such advantage that the partnership was formed, and of course, for the like expectation, was continued. In Morrell v. Trenton Ins. Co., 10 Cush. 282, a policy was taken out by the plaintiff upon the life of his brother, who was about going to California, on an agreement that the latter should pay him one-fourth of his earnings for the following year. In an action on the policy it was contended that the plaintiff had no insurable interest in the life of the insured, but the court, after deciding that he had such an interest from the fact that he held a promissory note signed by the firm of which the insured was a partner, also said that it was strongly inclined to the opinion that the plaintiff had another interest in the life of the person insured. "He had." said the court, "a subsisting contract with that person, made on a valuable consideration, by which he was to receive one-quarter part of his earnings in the mines of California for one year. Such an interest can not, from its nature, be valued or apportioned.