trived purpose to deceive and defraud other creditors of the mortgagor." Almost the entire opinion of the court is taken up with a discussion of the evidence to demonstrate this, and, certainly, when this conclusion was reached, the pivotal question in the case was effectually disposed of; but it is added that "a mortgage, executed by an insolvent debtor with intent to give a preference to his creditor, who has reasonable cause to believe him to be insolvent, and knows it to be made in fraud of the provisions of the bankrupt act, and who, for the purpose of evading the provisions of that act, actively conceals and withholds it from record for two months, is void under the bankrupt act, notwithstanding the fact that it was executed more than two months before the filing of a petition in bankruptcy by or against the mortgagor." This must be understood as predicated of the special facts in the case, from which it was apparent that the mortgagor and mortgagee were animated throughout by "a premeditated and contrived purpose to deceive and defraud other creditors of the mortgagor." There is certainly no equivalent evidence of fraudulent intent in this case. The mortgage was delivered to the mortgagees without qualification, but with the unrestricted right on their part to record it whenever they thought proper to do so, and it was not recorded for over four months simply for the reason that they did not regard it as necessary for their protection to record it sooner. I am of opinion, therefore, that the validity of the mortgage cannot now be questioned.

Dr. Johnston died before the date of the mortgage, and neither his executors or Mrs. Freed, their assignee, are parties to it. They had no knowledge of its execution, and are not, therefore, privy to it in any sense. It was a transaction solely between the bankrupt and his sureties in the bond to Dr. Johnston, and was obviously intended to indemnify them as such sureties. One of its conditions is that the debt for which they were sureties should be paid by the bankrupt mortgagor. Hence it is claimed that Mrs. Freed stands in such a relation to the transaction as to furnish a foundation for the relief prayed against her. That Mrs. Freed is not a holder of the mortgage, in any legal sense, is clear, and whatever right in equity may be open to her to claim the benefit of it as a security for her debt held by the sureties for their indemnification, she cannot be compelled to assume the position of a holder of it. That is dependent upon her own option, guided solely by her irresponsible judgment as to what is best for her interests. She has not done anything to change her equitable relation to it, and the court cannot establish an unwilling connection with it on her part that a benefit may thereby be conferred upon the other creditors of the bankrupt. But if she were a holder of it as a security, the bankrupt act prescribes the mode of proceeding in such case, and the penalty for refusal to account for it. For this reason alone the prayer of the bill ought to be refused.

The claim set up against John Lloyd is not cognizable in equity.

His liability is purely legal, and the law furnished a plain and adequate remedy.

Upon the whole case the complainants are not entitled to the relief prayed, and the bill must be dismissed, with costs.

STEVENSON v. MAYOR AND ALDERMEN OF THE CITY OF CHAT

TANOOGA.

(Circuit Court, E. D. Tennessee, S. D. April 17, 1884.)

EASEMENT-RIGHTS IMPLIEDLY RESERVED BY OWNER IN STREET DEDICATED TO A CITY.

The municipal authorities of a town cannot deprive the owner of land, who has simply dedicated to the public an easement to pass over it, of any use of the land dedicated not inconsistent with the full enjoyment of the easement.

KEY, J. Complainant alleges that he is the owner of a parcel of land lying on the Tennessee river, in the northern part of the city of Chattanooga. Three of the streets of the city-Market, Broad, and Chestnut-run, as he insists, to this land, but have not been extended through it to the river. He says that for many years he has used this real estate as a wharf, and has expended large sums of money in preparing and improving it, and keeping it in repair, for the purposes to which it has been appropriated. The public, for many years, have used it as a wharf, and he says he has charged and received wharfage for all such goods and merchandise as have been discharged, from vessels navigating the river, upon the wharf.

It appears that on May 18, 1883, the corporate authorities of Chattanooga passed the following ordinance:

An ordinance to provide for defining the streets of the city at the Tennessee river, and to make it a misdemeanor for any person to collect wharfage within the limits of any street.

Section 1. Be it ordained, by the mayor and aldermen of the city of Chattannoga, that the city engineer shall cause stakes or monuments to be set so as to indicate the boundaries of streets at the Tennessee river.

Sec. 2. Be it further ordained, that it shall be a misdemeanor for any person or company or incorporation to collect wharfage, or in any way interfere with or obstruct the discharge of cargoes of freight, within the boundaries of streets as so indicated, or with the removal of same after it is discharged, on any pretense or claim of a right to wharfage on such freight.

Sec. 3. Be it further ordained, that it shall be a misdemeanor for any person to charge or collect any wharfage or towage for the landing of any boat or craft within the limits of any street, as defined by the stakes or monuments above provided for, or in any way to interfere with the landing of

boats or the discharge of their cargoes within such streets, on any claim or pretext of a right to collect wharfage or towage.

Sec. 4. Be it further ordained, that any person convicted of any of the of fenses herein described shall be subject to a fine of not less than ten dollars nor more than fifty dollars, at the discretion of the recorder, for each and every offense.

Sec. 5. Be it further ordained, that this ordinance shall take effect and be in force from the date of its passage.

It is quite evident that the complainant never conveyed that part of this property claimed for the streets to the city, or that the city, by any authoritive act, had appropriated the land to that purpose, or paid complainant its value. But, I think, it is equally clear that the public has used these streets and regarded them as such. Buildings have been erected upon the blocks adjoining them, but not upon the streets. They have been used and are necessary as approaches to the wharf, and to close them would virtually cut the public off from the wharf, and Market street leads to, and for many years has been used as, an approach to a public ferry. Besides all this, complainant, in some of his deeds of lease and conveyance, has described the property as embracing these streets. I conclude, therefore, that the land occupied by these streets was dedicated by complainant to that use, or the public has become entitled so to use them by prescription. But this use is a mere easement. The legal title remains in complainant; or, if not, the title would revert to him were the streets discontinued, and the public cease to use them as public highways. The city or the public are not entitled to their use for any other purpose. The law of the state imposes upon the defendant the duty of keeping these streets in repair, and free from obstruction, so that the people may pass over them conveniently. But the manifest purpose of the ordinance is, not to open and improve these streets for travel, but it is to convert the termini of the streets at the river into wharves, at which boats and other water-craft may land and discharge their cargoes without the payment of wharfage or other charge. The effect of the ordinance is, after the complainant, by the authority of the city, had established and improved his wharves, and opened streets to them through his lands, to take away the value and use of his wharves, by converting the streets which he had dedicated to the public for one use, to another and different purpose. Substantially, it is depriving him of the use of his property without compensation. I think it plain and palpable that this cannot be done. If the defendant allow freights to be discharged on these streets, and boats to be landed at them, it cannot prevent complainant from entering thereon and collecting such wharfage as the law and ordinances of the city authorize. He has the right to enter upon those streets to collect the fees or charges, if defendant direct or permit the vessels and goods to land there. He has parted with no right to the land thus used as streets, except that he has given it to the public to use as a highway. He has not given to the city or the public the right to use it as a free

wharf. It would be inequitable and violative of his constitutional rights, both state and federal, thus to deprive him of the value and use of his property; and the provisions of the ordinance referred to, so far as they undertake to do this, are void.

The defendant will be perpetually enjoined from enforcing, as against the complainant, the provisions of the second, third, and fourth sections of the ordinance of May 18, 1883, or from otherwise preventing him from collecting such wharfage as he may be entitled to. The court being of the opinion that defendant is liable for the amount of such actual wharfage and towage as complainant has been prevented from collecting by reason of the provisions of the ordinance mentioned, the clerk of this court, as special commissioner, will hear proof, and report, at as early a day as convenient, what the amount of such wharfage and towage is; bond and security having been required of the defendant for the payment thereof at the commencement of this litigation, upon condition that defendant failed therein.

(May 9, 1884.)

Motion for an Attachment for Disobedience to an Injunction.
Key & Richmond, for complainant.

H. M. Wiltse, for respondent.

KEY, J. The bill was filed in this cause, alleging that respondent, without authority, had run Market, Broad, and Chestnut streets through his wharf property to the Tennessee river; had ordained that steam-boats and other water-craft might land at the ends of these streets and discharge their cargoes upon the streets, and has prevented complainant's agents from entering thereon to collect wharfage. A decree was but a few days ago pronounced in the cause, declaring that the streets named had, by dedication, been extended to the river, and the public had an easement therein,-that is, to use them as streets,-but that respondent could not prevent complainant and his agents from entering upon these streets and collecting wharfage upon such merchandise as might be discharged thereon; and respondent was enjoined from doing so. Defendant now seems to have changed front, and has declared that boats shall not land and load and unload their cargoes at and upon these streets, and has arrested the master of a boat who has done so. This, complainant alleges, is a violation of the injunction, and he has asked that the mayor of the city, by whose order the arrest was made, be attached for contempt.

Whatever bearing the decree may have on the present attitude of the parties, it cannot be said that the point involved in this contention was explicitly decided in the original cause, and hence there is no ground for the attachment asked; but as the decree alluded to is not final, and as the parties desire a construction of its terms in so far as the present state of the case is concerned, and as the petition and answer raise the question, we may as well do so.

It must be remembered that the parties are in a court of equity. It has already been decided that respondent had no right to throw open the streets above mentioned as wharves, and to prevent complainant from collecting wharfage upon them. Without any change of circumstances, or any difference in the condition of things in the neighborhood of the property, the streets are closed against the landing of boats and the discharge of freights. The position of things is reversed, and for no apparent reason, except that the streets are not allowed to be barred against the entrance of complainant. So soon as they are opened to him they are closed against boats and freight. This is personal legislation, if it may be called legislation, intended to operate against the complainant. If its purpose be to injure and destroy his property or its value, it is but a continuation of the object already expressly enjoined, and should not be tolerated unless the action of respondent is authorized by law.

It should be kept in mind that respondent has paid nothing for these streets, so far as they extend through complainant's property. He converted his property into a wharf and allowed the streets to run through it so that the public might reach the wharf and the river. There is no other use for these streets except for the ferry on Market street. The city has never marked out and graded these streets as such. Broad street cannot be traveled for a considerable distance before the wharf is reached. So undefined and unknown were the boundaries of this portion of the streets that respondent, on the eighteenth day of May, 1883, provided by ordinance "that the city engineer shall cause stakes or monuments to be set so as to indicate the boundaries of the streets at the Tennessee river," and, as already stated, appropriated that section of the streets to free wharves. The respondent did not then consider that it was necessary to open the streets, but it provided that they should be defined and marked so that the public might use them as wharves. Now that they cannot be so used they are thrown open, and boats and goods warned away from them. These streets, except Market, and the wharf are precisely alike in grade, in appearance, in construction, and in all other respects. They are alike open to travel. Vehicles pass over the wharf just as they do the streets, and there is nothing to indicate where one begins or the other ends, unless it be the stakes provided for by the ordinance of May 18, 1883. The public have used the streets and the wharf indiscriminately, and for many years, and such use is the most convenient that can be made consistent with the objects to which the property has been devoted. No new public necessity or convenience has arisen to be met by a change in the character of the property. It was made into a wharf and the streets dedicated to its use as such. The city was not bound to accept the property, and has not done so by any formal act, unless the ordinance of May 18, 1883, be considered such formal acceptance, and that act was in derogation of the original object of the dedication. It is only by long