an obligation that can be enforced in a court of equity. As to all contracts, rights, trusts, and obligations growing out of Newhall's transactions with the slave Paulina Isbell, they must fall to the ground as utter nullities. As to the writing of March 20, 1865, (Exhibit B.) It was manifestly intended by Newhall as a will, or codicil to his will of the same date. He calls it his "will in fact." The executor, Charles M. Sublett., in one or mare of his letters filed as exhibits with complainant's bill, speaks of it as the "will." He understood it to be such. Being Qull and void as a testamentary: paper, for want of the requisite number of witnesses, does it create lJ,trust for the benefit of Elizabeth Penn? "Uses or trusts. to be raised by any covenant or agreement of a party in equity, must be founded t1ponl5olne meritorious or valuable consideration; for courts of equity will not enforce a mere gratuitous gift, (donum gratuitum,) or a mere moral' obligation. Hence it is that, if there bea mere voluntary executory trust created, courts of equity will not enforce it." Story; Eq. Jur. § 973. See, to the same effect, Bisp, Eq. 101. Were the court to construe the paper B, taken In connection with the letters of Charles M. Sublett, executor c. d. e. f., as on its face declaring a trust, yet'having no consideration, either valuable or meritorious, to support it, it cannot be enforced. "And upon thes/l.me ground, if two -for a valuable consideration, as between themselves, covenant to do. some act for the benefit of a third person, who is a mere stranger to the consideration, he cannot enforce the covenant against the two,although each one might enforce it against the other." Story, Eq. Jur. §973. This is the doctrine at common lawjand, though it has been modified by statute, (Code 1873, c. 112,) there was never any agreement between Newhall and the Subletts, or either of them, that can bring the female complainant within the· provisions of the statute. The bill must be dismissed upon the merits·.
TRUST Co. and others v. WABASH, ST. L. & P. Ry. & ST. J. R.Co., Intervenor.)
(Circuit Court, E. D. Mi88ouri, E. D. June8,1887.)
OONTRACT-E:ljFOROEME:NT-ACT OF GOD.
A railroad company contracted to pay a sum equal to one-third of all exthe "operation, maintependitures necessarily incurred in, by, or nance, renewal,repairs, or protection" of a certam bridge. The bridge'was partially blown down by a cyclone. Held, that it was liable for one-third the amount expended in putting it in repair, notwithstanding the fact that the injury to the bridge was from an act·of God.
In Equity. Exceptions to master's report. Wells H. Blodgett,foi' receivers.
CENTRAL TRUST CO. V. WABASH, ST.L. & P.
Hitchcock, Madell & Finkelnberg, for intervenor.
THAYER, J., (orally.) In the matter of the petition of the Hannibal &: St. J. R. 00. v. Wabash, St. L. & P. Ry. 00., it appears that the defendant contracted with plaintiff for a right of way over the bridge across the Missouri river at Kansas City, and agreed to pay,as a rental, $4,000 per month, and, in addition, "a sum equal to. olle-third of all expenditures necessarily incurred by the said Hannibal & St. Joe Railroad Company in, by, or through the operation, maint.enance, renewal, repairs, or protection of said bridge and approaches, including all taxes thereon, such payments to be made on the thiJ,'tieth day of each succeed. ing month after such services or accrue." It furthermore appears that one span of the bridge was subsequently blown down by a windstorm or cyclone, and the sum of $22,575.47 was expended by plaintiff in putting it in repair; one-third of which amount, to-wit, Wabash, St. Louis & Pacific Railway Company was called upon to pay. It declined to pay the same upon the ground that the injury to the bridge was by an act ofGod, and that, under the covenant above recited, it was not liable for the repair of any injuries that were so occasioned. The general rule is that, where an obligation Of a duty is imposed upon a person by law, he will be absolved from liability for non-performance of the obligation, if such non-performance was occasioned by an act of God. This rule is illustrated in the case of common carriers. The rule, however, is just as clear that, when a man undertakes by an express contract to do a given act, he is not absolved from liability for non-performance, even though he is prevented from doing the same by an act of God. In that class of cases, if a person desires to absolve himself from liability for non-performance under any circumstances, he should so stipulate in his contract. In this case no exception whatever was made in the contract. The defendant broadly contracted to pay one-third of all expenses that might be incurred, not only in repairing the bridge, but in the renewal thereof. Having made such covenant without any limitations, it is clearly liable to pay its proportion of the expense of repairing an injury that was occasioned, even by a cyclone. The report of the master, holding the lessee to the performance of the full measure of its obligation, is correct. The exceptions will ther!lfore be overruled, and the report of the master will be confirmed; Vide Gathwright v. Oallaway Co., 10 Mo. 664; Davis v. Smith, 15 Mo. 468; Brecknock Nav. Co. v. Pritchard, 6 Term R. 750; Tayl. LandI. & Ten. par. 667.
(Circuit Oourt, E. D. Mis8ouri. June 8,1887.)
,' COSTS--Sl!lOUlUTY FOR, AFTER, JUDGMENT.
Whertl a plaintiff has recovered judgment against a solvent defendant. and process iii outstanding 'in the nature of an execution to collect the same, it is not proper to require the plaintiff to make a deposit to secure costs due 8. commissioner.
E. B. Sherzer, for plaintiff. Huff &: Denison, for defendant.
Motion for security for costs. '
J., (orally.) In the case of the United States, aUhe relation of Shelly, against the county of St. Charles, a motion has been filed by the referee or cOmmIssioner to require the plaintiff to make a deposit to secure the ,The case, in is a mandamus' proceeding. An , alternative writ has been issued. There has been a return to the writ, a hearing of the issues raised by the return to the alternative writ, and' a been awarded for a certain sum. In that, state, of the case, the commissioner to whom certain issues arising under the return to, the alternative writ were referred, moves that the plaintiff be to deposit a certain sum to secure his costs. I think the h"s p01Ver to make, such an order, but I do not think that it is the correct practice, to make an order of that kind when a case has reached the stllge that this case is in. A peremptory writ is now outstanding wliicbis, in the nature of an execution, and it does not seem to me ,proper to require a plaintiff to make a deposit to secure the costs after he has recovered and process is outstanding, in the nature of an execution to coUect' the same j and especially is this true in a case where the defendant is shown to be amply solvent. ' The judgment herein is a lien upon a large tract of land in St. Charles county, and the' presumption is that the amount of the plaintiff's debt and all costs, will be recovered. Under such circumstances I think it the correct practiye to require the commissioner to await proceedings under the peremptory writ, unless such prOceedings are unduly delayed.. The motion, therefore, to require an additional deposit, will be overruled.