Eng. L. & Eq. 520, in the court of common pleas 1851; and of Ruffey v. Henderson, 8 Id. 305, in the queen's bench 1851-show that the law is well settled in England in accordance with the views which we have taken; and the opinion of the court in Wood v. Leadbitter, supra, delivered by Baron Alderson, quite exhausts the whole doctrine on the subject of licenses. The current of authority in this country sets with equal strength in the same direction, as may be seen by referring, amongst others, to the cases of Cook v. Stearns, 11 Mass. 537; Ruggles v. Lesure, 24 Pick. 190; Claflin v. Carpenter, 4 Met. 583 [38 Am. Dec. 381]; Nettleton v. Sikes, 8 Id. 34; and Stevens v. Stevens, 11 Id. 251 [45 Am. Dec. 203] in Massachusetts; to Ex parte Coburn, 1 Cow. 570; Miller v. Auburn R. R. Co., 6 Hill, 61; Mumford v. Whitney, 15 Wend. 380 [30 Am. Dec. 60]; and Houghtaling v. Houghtaling, 5 Barb. 379, in New York; to Prince v. Case, 10 Conn. 375 [27 Am. Dec. 675], in Connecticut; to Barnes V. Barnes, 6 Vt. 388; and Leland v. Gassett, 17 Id. 403, in Vermont; to Richman v. Baldwin, 21 N. J. L. 396, in New Jersey; to Hays v. Richardson, 1 Gill & J. 366, in Maryland; to Clinton v. McKenzie, 5 Strobh. 36, in South Carolina; and to Woodward v. Seely, 11 Ill. 157 [50 Am. Dec. 445], in Illinois.

In Maine, New Hampshire, Pennsylvania, and Ohio, and perhaps in some other states, the exploded doctrine of some of the earlier English cases is still maintained at law upon equitable grounds of estoppel, and part performance of a parol contract, which certainly from their inherent justice would commend themselves to our attention as a court of law, had we not full powers as a court of equity to do justice in a proper case of this sort, when applied to on that side of the court. In the recent case of Weeden v. Babcock [not reported], in this county, this court sitting in equity, by way of perpetual injunction of a suit at law, specifically enforced a parol contract for the exchange of one private way for another, upon the equitable ground that the contract had been performed by the party applying, and the way having been given up for the purpose of a railway track, and having been thus extinguished because the applicant could not be placed in the situation in which he was before performance on his part. We do not doubt our ability to do full justice in like cases requiring our aid as a court of equity; and we deem it much safer that equities of this sort, often to be nicely adjusted, and sometimes demanding mature consideration, should be administered, through appropriate and flexible remedies, on that side of the court, than by the rougher and less

discriminating intervention of a jury, and scantily as they must be, in the unyielding forms of the common law.

The motion for a new trial in this case is in general terms, and if granted as asked, will open to the jury who are to try the cause all the issues which are made up in it. We were asked, however, by the applicant for a new trial at the argument, inasmuch as a prescriptive right of way appurtenant to the farm of A biel T. Browning, in whose right the defendants justify, is pleaded, and has been found against them, to limit the new trial to the plea of license, and allow the verdict to stand as to the plea first named. This would be in effect to order a judgment to be entered up against the defendants, except so far as the mere question of the amount of damages is concerned. Now, although it is true that in granting new trials we are expressly empowered by statute to grant them under such restrictions and conditions as we may prescribe, Dig. 1844, pp. 89, 90, it is not unusual, at least when they are granted for causes not involving any fault of the court, to impose proper conditions upon the applicant in the way of costs, or even of limiting the issues, or points under the general issue, to be opened to him in the new trial: Hutchinson v. Piper, 4 Taunt. 555; Thwaites v. Sainsbury, 7 Bing. 437; Baxter v. Nurse, 6 Man. & G. 940-942; Winn v. Columbian Ins. Co., 12 Pick. 287, 288; Robbins v. Townsend, 20 Id. 351; Allen v. Mapes, 20 Wend. 633-634; or to grant them unless the other party releases an excess of damages, or does some other justice in the cause, and so to impose a condition upon him, if he would prevent the new trial: Stephenson v. Mansony, 4 Ala. 317, 318; yet where, as in this case, the ground upon which the new trial is granted is an error of the court, it at least is not customary to impose any conditions upon the applicant, unless, indeed, the court has acquired a right so to do by his previous consent: Baxter v. Nurse, supra; Tuttle v. Gates, 24 Me. 395, 397, 398; but see Robbins v. Townsend, supra.

We are not aware, however, of a practice anywhere which authorizes the court to fix any terms whatever upon the party against whom the application is made, unless by way of an alternative, which he must accept or endure the new trial. Certainly it was never known that the party applying could have the issues found against him opened, whilst those in his favor were to stand against his adversary, who asked no indulgence and received none in return from the court, when it was employed merely in correcting its own error. At all events, no such prac

tice has been known in this state, and this is not a case which appeals to our discretion to introduce it. The plaintiff has thus far disclosed no equities which aid him in obtaining from us. advantages in his pursuit of the defendants. He stands upon the strict law, to which he is entitled, and we are not disposed to abridge the chances of the defendants in successfully resisting this action upon any of the issues which the record as originally made up opens to them. A new trial generally is therefore awarded.

REVOCABILITY OF LICENSE RESPECTING REALTY: See Addison v. Hack, 41 Am. Dec. 421; Wilson v. Chalfant, 45 Id. 574; Lowe v. Miller, 46 Id. 188; Woodward v. Seely, 50 Id. 445; Hazelton v. Putnam, 54 Id. 158; Bush v. Sullivan, Id. 506, and cases cited in the notes thereto. The principal case is cited to the point that a mere license, whether by deed or parol, is always revocable, unless coupled with an interest and executed, in Kamphouse v. Gaffner, 73 Ill. 461. It is cited also in Snowden v. Wilas, 19 Ind. 14, to the point that though a parol license amounting in terms to an easement is revocable at law as to future enjoyment, and is determined by a conveyance of the estate, it is not always so in equity, but that in equity courts the future enjoyment of a parol license granted upon consideration, or on faith of which money has been expended, may be enforced if adequate compensation in damages cannot be made. The language of the principal case as to the equitable rule and practice upon this point is quoted in Lane v. Miller, 27 Id. 537, where it is held that in Indiana, where a parol license is given, upon the face of which money is expended by the licensee, the licensor will be estopped from revoking the license unless the licensee can be placed in statu quo.

PAROL AGREEMENT FOR EASEMENT, VALIDITY OF, GENERALLY: Sce Harris v. Miller, 33 Am. Dec. 138; Pitkin v. Long Island R. R. Co., 47 Id. 320; Hazelton v. Putnam, 54 Id. 158. The principal case is cited in Appeal of North Beach etc. R. R. Co., 32 Cal. 506, to the point that an easement is an estate or interest in land within the statute of frauds requiring contracts affecting real property to be in writing.

TILLINGHAST v. CHAMPLIN.

[4 RHODE ISLAND, 173.]

PARTNERSHIP RECEIVER, APPOINTED IN SUIT BY REPRESENTATIVE OF DECEASED PARTNER against the surviving partner to compel a settlement of the affairs of the partnership, and the application of its property to its debts, is an officer of the court, invested with the whole equitable title to the firm assets without an assignment; represents, in any suit affecting the partnership property, the interests therein of all parties to the suit in which he was appointed, if not of persons who are not parties; is clothed with all the rights and equities of the deceased partner, for the purposes of his trust; and may sue, without leave, in this country, to obtain possession of the partnership property for the purpose of applying

it to the partnership debts, and need not, on a bill filed for that purpose, join the representative of the deceased partner as a party. PARTNERSHIP CREDITORS HAVE No Lien, whilE PARTNERS ARE ADMINIS

TERING their own funds, on the joint property for the payment of their claims, nor have creditors of individual partners any lien upon their separate property, or any priority of payment out of it.

PARTNERSHIP CREDITORS HAVE EQUITABLE LIEN IN CASE FIRM IS DISSOLVED BY DEATH of a partner, or in case of the bankruptcy or insolvency of one or all the partners, upon the joint property of the firm, and separate creditors have a similar lien and priority as to the separate property of the partners. COMPLAINANT CANNOT HAVE RELIEF ON ANOTHER GROUND, WHERE BILL CHARGES ACTUAL FRAUD as the ground of relief and the fraud is not proved, but the bill must be dismissed with costs, and this though the word "fraudulent" is not used, if the facts alleged and the relief asked show that fraud is the real ground of complaint; but where such a bill is filed by a partnership receiver, under legal advice, and in the interest of creditors, to recover assets alleged to have been fraudulently transferred, it will be dismissed without prejudice, and costs will be allowed out of the partnership fund.

REALTY CONVEYED TO PARTNERS AS CO-TENANTS 18 PARTNERSHIP PROPERTY, in equity, where it is purchased with partnership funds for the use of the firm.

DECEASED PARTNER'S SHARE OF SURPLUS OF PARTNERSHIP REALTY, after the payment of the firm debts and the adjustment of the mutual equities of the partners, is regarded in American courts of equity as realty, and descends to the heir, but the rule seems to be otherwise in England. BONA FIDE PURCHASER OF PARTNER'S LEGAL TITLE IN PARTNERSHIP REALTY, conveyed to the partners as tenants in common, having no notice of the equitable rights of the copartners or partnership creditors in the land as partnership property, will be protected in equity as well as at law.

SURVIVING PARTNER MAY DISPOSE OF PARTNERSHIP REALTY for the payment of partnership debts, and of any balance due him as a partner, if the legal title is vested in him, and if not, equity will assist him by compelling a conveyance of the legal title to himself or to a purchaser from

him. PURCHASER OF PARTNERSHIP REALTY FROM SURVIVING PARTNER, though he knows it to be partnership property and that there are partnersuip debts to be paid out of it, if he honestly buys it and pays for it, without knowledge or notice of any facts indicating an intent by the surviving partner to misapply the funds, will be protected, although such surviving partner does in fact appropriate the money to his own use, leaving the debts unpaid; but where he purchases either the whole of such realty or the surviving partner's undivided legal interest therein, knowing it to be partnership property, and that the firm is nearly or quite insolvent, and receives the conveyance, and pays the purchase money secretly, and at night, under circumstances indicating knowledge of the fraudulent designs of the surviving partner, who immediately absconds, leaving the firm debts unpaid, such purchaser takes the prop erty subject to the trusts under which it was held by his vendor.

BILL by a receiver of partnership property to subject certain realty purchased by the defendant from the surviving partner of the firm to the payment of the partnership debts. The case appears from the opinion,

Cozzens, for the complainant.

Blake, for the respondent Champlin.

By Court, AMES, C. J. This bill is brought by the plaintiff, as receiver of the late firm of Gardner & Brother, of East Greenwich, housewrights. He was appointed to this receivership by a decretal order of one of the justices of this court, on a bill filed by George C. Kenyon, administrator of William A. Gardner, the deceased partner of the above firm, against Benjamin W. Gardner, the surviving partner, for the administration of the partnership property, and to compel the application of the same to the payment of the copartnership debts. He is therefore an officer of this court, invested with the whole equitable title to the partnership property without an assignment, and in this suit certainly represents the interests in that property of all parties to the suit in which he was appointed, if not of all persons not parties thereto: Hutchinson v. Lord Massareene, 2 Ball & B. 55; Davis v. Duke of Malborough, 2 Swanst. 118; Green v. Bostwick, 1 Sandf. Ch. 186; Mann, Receiver, v. Pentz, 2 Id. 271, 272; Waring v. Robinson, 1 Hoffm. Ch. 532; Iddings v. Bruen, 4 Sandf. Ch. 422-427, in which last case see a full discussion of the interest and power of a receiver of copartnership property in and over it. According to what is understood to have been the old English practice, and at all events the most convenient practice, and that generally adopted in this country, he may, in order to enable him to perform his trust, suo motu, and without special leave (which he must, according to the present inconvenient practice in England, obtain from the court appointing him), bring suits to possess himself of the estate to which he is officially entitled, incurring no risk except as to costs; and, least of all, have the persons sued a right to object that he brings his suit without such leave: Green v. Bostwick, 1 Sandf. Ch. 186; Iddings v. Bruen, 4 Id. 424-426. There is no danger in this; for, as an officer of the court, he is always subject to its control upon proper application, and if he recover or possess himself of property, it is in custodia legis, and subject to administration by order of the court.

Now, the representative of the deceased partner, who brought the bill under which this receiver was appointed, had a clear