that it is something more than retiring from the business of the partnership and not carrying on any branches of the same business. I think, that popularly speaking, it means this-that as long as the father and the half-brother are connected together, James Davies will not in any way annoy or interfere with them, but I think that is a contract not relating to business only, but relating to the two Davieses so long as they have any common interest. I think it is therefore one which does not pass with the business, and which cannot be broken after the death of Edward Davies. But further than that, I desire to say that the contract appears to me to be couched in such vague terms and doubtful words that I think it can be enforced neither at law nor in equity. Mr. Warmington, who undoubtedly felt the difficulty in the way, asked us to separate the words "directly" and "indirectly," and to hold, if the covenant could not be enforced with regard to conduct having an indirect effect on the Davieses, that it might with regard to a direct effect. But that construction is not open in this case, because those words, "either directly or indirectly" are only an amplification or explanation of the affirmative words, "in any way." Therefore we have a contract not to trade in any way to affect the two Davieses, not to act in any way to affect them, and not to deal in any way to affect them. I think that no such vague and general covenant which is not, even in terms, confined to affecting them injuriously could be enforced. For these reasons I am unable to concur in the conclusion arrived at by Kekewich, J., and I think that this action ought to have been dismissed with costs, and must now be dismissed with costs here and in the court below.

COTTON, L. J. As Fry, L. J., misunderstood me, I think I had better state (what I thought I had done)

that my first ground for deciding that the previous

clause of this covenant is bad, is that it is in restraint of trade generally, which in my opinion the law holds to be bad. The law does not allow that, and therefore it is not covered by that expression, "so far as the law allows."

act relating to inebriates and habitual drunkards." The language of the act however leaves it somewhat doubtful whether it should be regarded as penal or paternal. If it is to be regarded as penal, then its validity would seem to turn upon widely different considerations than though it were paternal; and if it is to be regarded as paternal, then its validity would seem to turn upon widely different considerations than if it were penal. It reads: "Any person who shall be charged upon the complaint of another with being an inebriate, habitual or common drunkard, shall be arrested and brought before a judge of a court of record for trial in the same manner that offenders may be arrested and brought to trial before a justice of the peace; and if he shall be convicted of being an inebriate, habitual or common drunkard, he shall be sentenced to imprisonment or confinement in any inebriate or insane asylum in this State, for a period not exceeding two years, nor less than three months: provided however that before such sentence some relative or friend of such inebriate, habitual or common drunkard shall execute a bond in the sum of $1,000, with sufficient surety, to be approved by such judge, to the State of Wisconsin, conditioned that he will pay for the support and treatment of such inebriate, habitual or common drunkard during his imprisonment and confinement."

1. Is it penal? and if so, is it a valid enactment? The words "charged,' "arrested," "for trial," as "offenders," "convicted" and "sentenced to imprisonment or confinement" "for a period" to be definitely fixed, would seem to indicate an intention to make it a criminal offense to be "an inebriate, habitual or common drunkard," under any and all circumstances. The police powers of the State are certainly not only sweeping but potential when legitimately exercised. According to the more recent utterances of the Supreme Court of the United States, even the late amendments to the Federal Constitution were not "designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity." Barbier v. Connolly, 113 U. S. 31, per Field, J. This language was expressly sanctioned by Mr. Justice Harlan, speaking for the court, in the very recent case of Mugler v. State, 123 U. S. 663. In a recent work on the Limitations of Police Power, it is in effect asserted that there can be no lawful punishment of mere drunkenness, so long as it is concealed in strict privacy, without any exposure to or interference with the public or any individual. Tied. Lim. Police Power, 302. In other words, that strictly private and concealed vice of the individual cannot be lawfully made a public offense. The language of the act in question would certainly admit of such conviction without such exposure of publicity. But we are not called upon to determine whether the act is invalid for that reason, unless we should conclude that the act must be regarded as a penal statute-a question which will presently be determined. If to be "an inebriate, habitual or common drunkard" was intended to be made a criminal offense by the act, then it should have provided for or recognized the right of a "public trial by an impartial jury of the county or district wherein the offense" should be "committed; which county or district" should "have been previously ascertained by law." Section 7, art. 1, Const. Wis. The right to such "public trial" thus secured is manifestly a trial by jury in a court of law, having jurisdiction by virtue of law. The fact that no such trial is given, and no such jurisdiction is conferred or recognized in the act in question constrains us to believe that it never

was designed, and if it was, that it cannot be regarded as a valid penal statute. The act in substance provides that any person so charged "shall be arrested and brought before a judge of a court of record for trial," and if convicted and the requisite bond given, "he shall be sentenced," etc. We understand this to mean any judge of any court of record in the State, even at chambers. True this relator was so brought before the "judge of the municipal court of the city and county of Milwaukee, being a court of record within said county." This is recited in the commitment. So it is recited therein that the complaint so charging the relator, was "addressed to" said judge (naming and describing him) and that "upon said complaint, the said "relator "was arrested and brought before the said " judge (again naming and describing him) "for trial," and that "a trial of such charge was duly had before the said judge and a jury, as demanded by the said " relator; and that "upon such trial the said" relator "was convicted of being an inebriate, habitual and common drunkard;" and that upon the bond being given, "the said " judge (again naming and describing him) "did, upon such conviction, * * ** sentence the said " relator "to confinement * * for the period of two years," etc. There is nothing in the commitment from which it can be inferred that such municipal court took or assumed to take jurisdiction of the matter so charged, nor that such trial was in or by said court. On the contrary it appears throughout the commitment that the judge of said municipal court acted as such judge and only by reason of the authority supposed to be given to him as a judge of a court of record " by virtue of said act. The same language applies with equal force to a judge of a County Court or a Circuit Court, or even of this court. And yet we apprehend that no one would claim that the Legislature had power to authorize a member of this court to take original jurisdiction in the trial of a criminal offense. Nor could the Legislature lawfully authorize the trial of such criminal offense before and by a judge at chambers.

And yet the act gave to the judge of the municipal court, sitting merely as "a judge of a court of record," no other or greater powers than are therein given to any judge of any other court of record, and hence, at most, not exceeding such powers as may be lawfully exercised by any judge of a court of record at chambers. If the Legislature could lawfully authorize the trial of criminal offenses by and before such judge at chambers, then it could effectually leave the person so charged and convicted without any remedy by writ of error, which is only authorized to review final judgments in actions triable by jury as a matter of right. Crocker v. State, 60 Wis. 553. But the Constitution provides that in such actions "writs of error shall never be prohibited by law." Id.; section 21, art. 1, Const. Wis. We must therefore conclude that the act was not designed to be a penal statute, and that if it is one in fact, it must to that extent be regarded as inoperative.

*

habitual drunkenness." The chancellor said: “Whenever the court is satisfied she has so far reformed that there is no danger of a relapse, the committee will be discharged and her estate will be restored to her." It was thereupon ordered in conformity to the "decision, subject however to be modified by the vice-chaucellor from time to time," as he might judge expedient, etc. Our general statute provides in effect that "when any person, by excessive arinking, shall be unable to attend to business, or shall be lost to self-control, and shall thereby greatly endanger his health, life or property, or shall be an unsafe person to remain at large, or shall by gaming, idleness or debauchery of any kind so spend, waste or lessen his estate as to endanger his own or his family's support, or expose the town to charge or expense for such support," and the proper verified petition setting forth the facts and circumstances of the case be presented to and filed with the County Court; and if after due notice and "a full hearing, it shall appear to the court proper under this section, such court shall appoint a guardian of his person and estate with the powers and duties hereinafter specified. The County Court shall have power to authorize or direct the guardian of any such person named in this section to commit such person to any inebriate asylum * * for a term not exceeding two years. Such person may be discharged at any time by order of the same court." Section 3978, Rev. Stat. A similar statute is in force in the city of New York, providing also for such discharge whenever the cause for such detention is removed. Knapp's Law relating to the P. I. I. & Habitual Drunkards, pp. 100-102. These statutes all go upon the theory of personal disability or want of self-control, which exposes the victim or others to danger or his estate to loss. These conditions create the necessity of intervention by the State through its authorized agency, as the needed physician-the Good Samaritan--the temporary guardian. The purpose of such guardianship is humane, beneficent and paternal, but the lawful right to its continuance is limited to the period of such disability or want of self-control. Since the only right of such confinement springs from the necessities resulting from such conditions, the removal of the conditions, and hence the necessities, when judicially ascertained, terminates the right. Tied. Lim. Police Powers, 114, 116, § 46, and cases there cited. But the act in question goes upon an entirely different theory. According to it 66 * any person ** being an inebriate, habitual or common drunkard may be convicted thereof, and if "some relative or friend" gives the requisite bond, he must be sentenced to imprisonment or confinement" for a period to be definitely fixed by the judge within certain limits. Such conviction is not made dependent upon his inability to attend to business, uor to any want of self-control, nor upon his being dangerous to himself or others, but solely upon his "being an inebriate, habitual or common drunkard." Just what would make a person such is not very clearly defined. Manifestly it was intended that the drunkenness should be repeated to the extent of becoming habitual, but just how frequently it should occur, or the extent of the delirium or stupefaction is left as a matter of fact to be determined by those who might differ widely in regard to it. Such habit might exist, and yet the victim be kind and generous-hearted, fully capable of attending to his business, gradually increasing his estate, tenderly providing for the wants of any dependent upon

safety of himself or others. Such may be the condition of this relator for aught that appears in this record. True his conditiou may be so deplorable as to require confinement under the general statute mentioned or even such as to properly call for punish

ment. But as we have seen, such is not the purpose of the act in question. The relator has never been convicted of any penal offense known to the law, even before a judge at chambers, much less in any court of law. The purpose of the act is not to guard merely during disability or want of self-control, or danger of personal safety, but to imprison for a fixed period, without the commission of any penal offense or any trial in a court of law, merely by reason of the existence of the condition named, and to satisfy the act and the "relative or friend" who kindly furnishes the requisite bond. Besides the act contemplates no restoration-no possibility of reformation within the time thus arbitrarily fixed. Not having been convicted of any offense known to the law, it would seem that he is beyond the reach of executive clemency. Section 6, art. 5, Const. Wis. From what has been said it appears that the relator stands before the court innocent of any offense known to the law and yet committed "to imprisonment or confinement" for the period of two years, upon a commitment issued by a judge at chambers and without any authorized process from any court of law. If the Legislature may thus authorize imprisonment for two years without the commission of any offense made punishable by law, then it may do so for ten or twenty years. It is the question of power merely with which we are concerned. While the State should take compassionate charge of any who are dangerous to themselves or others, it is equally bound to protect the personal rights and liberties of every harmless and law-abiding citizen capable of taking care of himself, his family and his property, however weak and unfortunate he may be in other respects. So sacred are certain rights of the citizen that they are especially guarded by our National Constitution; which among other things declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Section 1, art. 14, amend. Coust. U. S. In Mugler v. Kansas, supra, it is said by the court: "Undoubtedly the State, when providing by legislation for the protection of the public health, the public morals or the public safety is subject to the paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument, or interfere with the execution of the powers confided to the general government." As indicated, the act in question does not proceed upon the theory of protecting the public health, nor the public morals, nor the public safety, nor the personal safety of the victim, nor as a punishment for crime. On the contrary it proceeds upon the sole theory that the victim may be arrested, brought before a judge of a court of record at chambers, and if found by him to be an "inebriate, habitual or common drunkard," he may, without the existence of any other fact or condition, and without any trial in any court of law, imprison him for two years without any provision for his release.

We are forced to the conclusion that the relator has been deprived of his liberty without due process of law, and denied the equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356; 6 Sup. Ct. Rep. 1064; In re Ah Jow, 29 Fed. Rep. 181; In re Jacobs, 98 N. Y. 98; State v. Ray, 63 N. H. 406; 32 Alb. Law. J. 349; Frazee's case (Mich.), 30 N. W. Rep. 72. Under our Constitution the relator was "entitled to a certain remedy in the law" for such injury and wrong. Section 9, art. 1. This entitled him to a discharge. The order of the court commissioner is reversed.

NEW YORK COURT OF APPEALS ABSTRACT.

ASSIGNMENT-OF CLAIM AGAINST STATE FOR DAMAGES-RIGHTS OF PARTIES.-Defendant owned onetwentieth and plaintiff's assignors eight-twentieths of certain mill property, the water-power of which had been damaged by the State. Plaintiff's assignors transferred their claim for damages to defendant, and were to get eight-twentieths of the net proceeds when the damages were recovered from the State. Held, that the transfer was a sale for a contingent consideration to be paid in the future, and as soon as defendant recovered from the State he became liable to plaintiff for eight-twentieths of the amount, less eighttwentieths of the expense, and plaintiff's right to recover could not be defeated on the ground that the State appraisers had no jurisdiction to make an award for the eight-twentieths assigned, since, having jurisdiction of the claim presented by defendant, if the appraisers made an excessive award the error could be corrected only on appeal. April 10, 1888. Sweet v. Merry. Opinion by Finch, J.

CARRIERS OF PASSENGERS-INJURY TO PASSENGER --PRESUMPTION OF NEGLIGENCE.-Where plaintiff, riding on defendant's railroad train, sat with his arm resting on the window-sill, but not extending without, and some part of a passing freight train struck and seriously injured the arm, a presumption of want of proper care on the part of the railroad company arises, and the company failing to explain on suit brought against them, a judgment for plaintiff will be affirmed. April 10, 1888. Breen v. New York Cent. & H. R. R. Co. Opinion by Danforth, J. [See note, 50 Am. Rep. 589.--ED.]

CONTRACT ALTERATION AND MODIFICATION - EFFECT COVENANTS— RUNNING WITH THE LAND. —(1) Where there is evidence that a contract of sale, embodying a statement of the terms of a lease, had been abandoned, and an entirely different statement of such terms passed between the parties before the making of a new contract of sale and the execution of a deed, it is not error for the referee to refuse to find as a matter of law that the statement in the first contract was binding on such parties or their privies. (2) A covenant in a deed that the grantee would perform all the conditions of a certain lease already on the property and indemnify the grantor against the same will inure to the benefit of an assignee of such grantor. See Lawrence v. Fox, 20 N. Y. 268; Pardee v. Treat, 82 id. 385; Bowen v. Beck, 94 id. 86; Schley v. Fryer, 100 id. 71. March 20, 1888. Hallenbeck v. Kindred. Opinion by Peckham, J., Danforth, J., not voting.

CRIMINAL LAW TRESPASS ENTRY UNDER CLAIM OF RIGHT ADVICE OF COUNSEL.-(1) The Penal Code of New York, § 467, providing that a person who intrudes upon any lot within the bounds of a city or village, without authority from the owner thereof, or occupies any structure thereon without lawful authority, is guilty of a misdemeanor, does not include entries upon such premises by persons under a bona fide claim of right. The statute, construed in view of the pre-existing law, was primarily intended to define what was previously known in the criminal law as a criminal trespass, as distinguished from a mere civil trespass. It may include some cases not before criminal, but this we need not consider. But to constitute a trespass on land an indictable offense, the distinguishing feature is an unlawful and criminal intent. It is the criminal mind and purpose going with the act which distinguishes a criminal trespass from a mere civil injury. 1 Hale Proc. Crim. 509. It is not necessary to constitute the crime that the defendant does not

know that the statute prohibits his act. It is sufficient if he does the act prohibited, when the statute makes the mere act itself unlawful. But where a particular intent is an ingredient of the crime, the mere doing of the prohibited act does not constitute the crime unless accompanied with unlawful intent. The cases of larceny, receiving stolen goods or passing counterfeit money are illustrations. The same act may in one case be larceny or forgery, or a guilty receiving of stolen property, and in another wholly innocent-depending on the intent. Section 467 of the Penal Code, defining the offense of intrusion on lands, does not it is true in terms make the intent a material element of the offense. But it cannot be supposed that the Legislature intended to subject a person to criminal punishment, as when for example there being a dispute between neighbors as to the line between them, one moves his fence on to his neighbor's land, under a bona fide though mistaken belief that he was placing it on the true line; or where a lot-owner in a city or village, in erecting a building, encroaches innocently, although without authority, upon the street. Yet both of these cases are within the letter of the statute; but manifestly they are not within the statute, because looking at the reason of the thingthe ineffaceable distinction between innocence and crime and the antecedent law-the existence of a criminal intent as a necessary constituent of the offense must be implied. (2) When a party without authority enters into possession of a city lot, under an alleged contract of purchase which gave him no right to possession, and without having performed or offered to perform the contract on his part, it is not error to exclude evidence of the advice of counsel to show that he entered upon the premises under a bona fide claim of right. There was no colorable ground for any claim on the part of the defendant that he had any right or authority to enter upon the premises, arising out of the facts existing at the time. The facts were fully known to the defendant. Upon these facts there was no doubtful question of law, nor was the true conclusion to be drawn from the facts beyond the comprehension of any person of ordinary intelligence. Whatever advice may have been sought or accepted, there was a willful closing of the eyes to the truth if the defendant assumed to act upon advice that he was entitled to possession. It may have been supposed that the defendant would gain an advantage in the pending litigation if he could get into possession of the premises; but it is impossible that he could have believed that he was of right entitled to the possession. It is unnecessary to consider whether the advice of counsel, if honestly given, that the defendant was entitled to possession of the land, if accepted and acted upon in good faith, would constitute a defense. The circumstances do not permit this assumption in this respect. April 10, 1888. People v. Stevens. Opinion by Andrews, J.

BRIBERY

COMPLICES

NEW YORK PENAL CODE-CONSOLIDATION ACT CONSTITUTIONAL LAW JURY EXAMINATION ON VOIR DIRE — EVIDENCE - ACCORROBORATION - WITNESS — COMPETENCY-CONFESSED PERJURER.—(1) The Penal Code of New York, § 72, defining the crime of bribery, and prescribing the punishment therefor, repealed a section of a city charter, so far as the latter was in conflict therewith. Subsequently the repealed section was re-enacted as part of the consolidation act, whose object was to consolidate the local laws of New York city, and which elsewhere provided that for the purpose of determining the effect of the two acts, the Penal Code should be deemed the later enactment. Held, that this provision was not unconstitutional, as not within the purview of the act, and that bribery committed by a member of the common council of

New York city was punishable under section 72 of the Penal Code. People v. Jaehne, 103 N. Y. 182. (2) Under the Code of Criminal Procedure, § 376, defining, as a ground for challenging a juror, the existence of a state of mind on his part which satisfies the court that he cannot try the issue without prejudice to the party challenging, it is not error to permit the prosecutor, after stating to jurors that certain persons had turned State's evidence, and it was supposed would testify that they were engaged with defendant in the transaction for which he was indicted, to ask the jurors if they were so prejudiced against such persons as to prevent them from giving their testimony its lawful weight, especially when defendant accepted such jurors. (3) After a witness had testified, without objection, that he had settled a certain suit with the plaintiff or his attorney, the question, With whom personally did you negotiate the settlement?" is not objectionable. (4) Evidence as to acts and proceedings of the board of aldermen, in which defendant. participated subsequent to the offense charged in the indictment, which tend to confirm that charge, is admissible. (5) On the trial of an alderman for bribery, where defendant has stated his reasons for voting to grant a certain franchise, a question as to his reasons for voting against a rescission of the grant was properly overruled. (6) Under the Code of Criminal Procedure, § 399, providing that "a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect defendant with the commission of the crime," where on the trial of an alderman for bribery, in addition to the testimony of two accomplices, there is evidence of the proceedings of the board of aldermen, in which defendant participated, which tends to prove that bribery was there committed, there is sufficient other evidence to warrant a conviction. (7) Under the Penal Code of New York, § 714, providing that no conviction for crime disqualifies a witness, one who confesses that he has previously committed perjury in regard to the same things about which he testifies, is not thereby rendered incompetent. April 10, 1888. People v. O'Neill., Opinion by Andrews, J.

EVIDENCE-DEPOSITIONS-EXAMINATION OF ADVERSARY-EXTENT.-Under the Code of Civil Procedure of New York, §§ 870, 872, 873, providing for taking depositions to be used in the State, a party litigant may, in the discretion of the court before whom the application is made, have a general examination of his adversary, as a witness in the cause, as well before as at the trial, the examination not being confined to an affirmative cause of action, or the affirmative defense set forth by the applicant, and an order granting an application, which is so limited because the court was of the opinion that it had no power to do otherwise, will be reversed and remitted for further consideration. April 10, 1888. Herbage v. City of Utica. Opinion by Danforth, J.

PARENT AND CHILD INJURIES TO CHILD — ACTION BY PARENT — FUTURE MEDICAL SERVICES.-In an action for loss of services resulting from injuries inflicted on a minor child, a parent cannot recover for prospective medical and surgical services. It seems to be the doctrine of the law of Eugland that the right of a parent to maintain an action for an injury to his minor child, from the tortious act of a third person, is founded exclusively upon the loss of service, and that the parent has no remedy even for expenses incurred, unless the child is old enough to be capable of rendering some act of service, and the relation of master and servant, express or implied, exists between them. Grinnell v. Wells, 7 Man. & G. 1041; 2 Add. Torts, $ 902. But when the action is maintainable on the ground of loss of service, then both by the law of

England and of this country, the parent may claim indemnity, not only for the actual loss of service to the time of the trial, but also for any loss of service during the child's minority, which in the judgment of the jury, and according to the evidence, will be sustained in the future, and for expenses necessarily incurred by the parent in the cure and care of the child in consequence of the injury. Cowden v. Wright, 24 Wend. 429; Drew v. Railroad, 26 N. Y. 49; Dixon v. Bell, 1 Starkie, 287; Schouler Dom. Rel. 351. The English rule which denies to the parent any remedy for medical or other expenses incurred in consequence of the injury to the child, except as incident to the loss of service, ignores the paternal relation and obligation as an independent ground of recovery, although it may be manifest that the parent had sustained a pecuniary loss as the proximate result of the wrong. The court of Massachusetts, in the case of Dennis v. Clark, 2 Cush, 347, held a more liberal, and as it seems to us, a more reasonable and equitable doctrine, and decided that when an infant, residing with his father, receives an injury such as would give the child a right of action, the father who is put to necessary expense in the care and cure of the child, may maintain an action for indemnity, although the child was, by reason of his tender age, incapable of rendering any service. This doctrine casts upon the wrong-doer responsibility for a pecuniary loss flowing from his wrongful act, actually sustained by the parent in the discharge of his parental obligation to care for and maintain his infant children. But the jury were permitted to include, as a part of the damages in the action, the value of contingent and prospective surgical services. The right of the parent, in an action for loss of service of a child disabled by a tortious injury, to recover for prospective loss of service during the child's minority, is well settled. These damages are however of necessity to a great extent speculative or conjectural. There are many contingencies which may deprive the parent of the services of a child and even make the child a pecuniary burden to the parent, although the particular injury had not happened. The child may die from disease or other accident, or the parent may die. The prospective damages for loss of service, recoverable in such a case as this, may never in fact be sustained. But as only one action can be maintained against a wrong-doer for a single wrong, the law from necessity permits consequences not yet fully ascertained, but which are reasonably certain to happen, to be anticipated, and a jury is allowed to estimate the damages for future loss of service in the light of experience and of such evidence as can be given. The damages allowed in this case for prospective surgical expenses have still another element of uncertainty. coverable by the parent, it must be upon the ground of the parent's obligation to maintain the child. But not only may the parent die or the child die, thereby rendering the surgical expenses unnecessary, but the parent may become wholly unable to pay for the services if required, or the child may be treated in a hospital or at public expense, as was in fact the case in this instance, when the child's leg was amputated. There is adequate reason for permitting the parent to · recover medical or other expenses actually incurred, consequent upon an injury to the child from the wrongful act of a third person. In case of an injury to a minor child, whose parents are living, there is a double right of action; an action by the child and an action by the parent. In the child's action, plainly there can be no recovery for expenses actually incurred by the parent, and so far a double recovery is prevented. But it is not so plain that the child may not recover, as part of his damages, all the proximate pecuniary consequences of his disability, including medical and other expenses, as under the evidence the

If re

jury shall find it will be necessary in the future to incur. The denial of this right would in many cases deprive the child of the means of necessary relief. It cannot, I suppose, be doubted that the parents being dead, all the future consequences of the injury and necessary expenses flowing from the disability would be proper element to be considered by the jury in an action brought by the child, nor is there much doubt that these considerations enter into every verdict rendered in an action brought by a minor for his personal injury. There is perhaps a logical difficulty in denying the right of the parent to recover the damages now in question, but the same difficulty attends a denial of the child's right. It appears by the record that the child has brought an action and has recovered her damages. In the absence of controlling authority, we are of opinion that in an action by a parent, founded on loss of service of a child, only expenses actually incurred by the parent for medicine or medical attendance, or which are immediately necessary to be incurred, are recoverable as incident to the main cause of action, and that future, prospective, contingent expenses of this kind are recoverable only in an action by the child. The parent in an indirect way is benefited by a recovery by the child, and this rule will be most likely to accomplish justice and prevent a double recovery in such cases. The obligation of parents to maintain and provide for their children has its most effectual sanction in the natural affections. The law at best can but imperfectly enforce it. It does not undertake to do so directly until children have become, or are likely to become, a public charge. The law of necessaries is so limited and guarded that the wants of children can only be supplied under this rule in exceptional cases. The legal obligation of maintenance and support resting on the mother is especially imperfect. In all cases it necessarily can be enforced only in cases of the pecuniary ability of the parent, and in case of the mother the child's means are first chargeable with his support. Furman v. Van Sise, 56 N. Y. 435. A recovery in the child's action for a personal injury, for prospective medical services, where the fund recovered is usually preserved through a guardian or in other ways, will be most likely to secure such services when needed. April 10, 1888. Cumming v. Brooklyn City R. Co. Opinion by Andrews, J.

PARTNERSHIP-ACTION AGAINST SPECIAL PARTNER -CREDITOR'S BILL-JURY TRIAL— JUDGMENT - RES ADJUDICATA.–(1) A complaint alleging that plaintiff recovered a judgment against a general partnership, upon which execution was issued and returned unsatisfied, and that defendant, a special partner, fraudulently withdrew the assets contributed by him, together with alleged profits, although demanding a judgment against defendant as a general partner to the amount of money wrongfully withdrawn by him, states an equitable cause of action in the nature of a creditor's bill, and not an action to recover a money judgment only, which under the Code of Civil Procedure of New York, § 968, would entitle the parties to a jury trial. (2) A judgment for defendant in an action at law to recover a partnership debt from the defendant as a general partner, based on the claim that defendant failed to contribute his capital in cash, and that he fraudulently withdrew the assets from the firm, is not a bar to a creditor's bill by the same plaintiff for an accounting by defendant as a special partner for the assets withdrawn by him, the causes of action not being identical, and it not appearing from the record or extrinsic evidence that the question of the improper withdrawal of assets was involved and determined therein in defendant's favor. There are some cases in which a former judgment is a bar to the maintenance of another action, even if the second is