maintaining actions on promises before the time arrives for their performance. They have been followed by some of the American courts. In Butis v. Thompson, 42 N. Y. 246, they were apparently followed; but in Freer v. Denton, 61 N. Y. 492, a majority of the court of commissioners hesitated, and it may be regarded as an open question in that state. In Dugan v. Anderson, 36 Md. 567, the question was discussed, but not decided. In Massachusetts they have been rejected, and the soundness of the principle upon which they rest questioned. Daniels v. Newton, 114 Mass. 530. See, also, as to the determination of contracts of insurance by refusal to receive premiums: McKee v. Phoenix Ins. Co., 28 Mo. 383; Howland v. Continental Ins. Co., 121 Mass. 499; McAllister v. N. E. Mut. Co., 101 Mass. 558; Haynes v. American Popular Ins. Co., 69 N. Y. 435; Cohen v. New York Mut. Life Ins. Co., 50 N. Y. 610.

EXECUTIONS AGAINST TRUST FUNDS AND ANNUITIES.

There are statutes, regulating proceedings in aid of executions at law, which provide that funds held in trust for the debtor, where the trust has been created by, or the fund has proceeded from, some person other than the debtor, shall not be subject to their operation.1 As where a devise is made to a trustee of a sum certain, to be invested, and the interest collected semi-annually, and paid over to a female as long as she shall remain unmarried.2 New York, while having a similar statute (as shown in the note below), has another which provides that, "where a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum which may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable, in equity,

(1.) N. J. Act of April 12, 1864, R. S. N. J., 1874, p. 29, § 24. The words of this statute important in this connection are: "Where the trust has been created by, or the fund held in trust has proceeded from him "2 -that is, from the debtor. New York has a similar statute, the language being: "Except where such trust has been created by, or the fund so held in trust has proceeded from some person other than the defendant himself." 2 R. S. 174, § 28.

(2.) Frazier v. Barnum, 19 N. J. Eq. 318.

to the claims of the creditors of such person, in the same manner as other property which can not be reached by an execution at law." A trust fund created by another person for the benefit of the debtor is inalienable, and can not be reached by a creditor's bill in advance; that is, before the installments fall due; nor until they pass to an assignee under the insolvent laws. The object of the statute last quoted is said to be to prevent the accumulation of the surplus interest or income not wanted for the support of the cestui que trust, where no valid direction for such accumulation has been given, by making such surplus liable to the claims of his creditors.6 Accordingly, where an express trust is created to receive the interest or income of trust property, and to apply it to the use of a person, from time to time, the surplus, beyond what is necessary for his support and maintenance, may be reached by a creditor's bill against him, after such interest or income has become due. In determining what is necessary for a debtor's education and support, under the foregoing statute, it is immaterial whether or not the debtor is in good health or able to earn a livelihood. Nor can the motive of the person creating the trust be enquired into by creditors of the cestui que trust; since, if the trust is good, the fund which they are seeking to subject belongs, not to their debtor, but to the person creating the trust, or his heirs, or residuary legatecs." But in determining what the cestui que trust needs for his support, it is conceded that a person brought up in idle and dissolute habits, who has never learned how to take care of himself or his property, will need more than one who has been decently raised; and creditors must learn not to trust such a person. 10

The foregoing statute of New York was designed to put at rest a question which, prior to its adoption, remained unsettled in that

(3.) 1 R. S. N. Y., p. 729, § 57.

(4.) Hawley v. James, 16 Wend. 118, 165. (5.) Clute v. Bool, 18 Paige, 82.

(6.) Clute v. Bool, supra. per Walworth Chan. This view of the statute was doubted by Wright, J., in Campbell v. Foster, 35 N. Y. 361; but the question was passed over; but the rule seems to have been thought sound by Hogeboom, J., in Graff v. Bonnett, 31 N. Y. 14. To the same effect, see Degraw v. Clason, 11 Paige, 140, 141; Bramhall v. Ferris, 14 N. Y. 41.

(7.) Ibid. Sillick v. Mason, 2 Barb. Chan. 79. (8.) Chute v. Bool, supra.

(9.) Ibid.

(10.) Sillick v. Mason, supra; Walworth, Chan.

state; but it gave rise to a line of decisions not always uniform, and sometimes confusing. But the cases appear to unite upon one test by which to determine whether, under it, a fund held in trust for a debtor may be subjected to the satisfaction of the demands of his creditors, namely, the test of alienability. If the interest is alienable by the debtor-that is, if it is of such a nature that he can sell or dispose of it, or control it as he pleases, then it is such an interest as will be accessable to the claims of creditors. It will pass to his assignee in bankruptcy, and can be reached by a proceeding in equity. But if it is an interest which the cestui que trust, the debtor, is inhibited from aliening, then the contrary result will follow. 12 In New York this question was governed by the following statute: "No person beneficially interested in a trust, for the receipt of the rents and profits of land, can assign, or in any manner dispose of such interest; but the rights and interest of any person, for whose benefit the payment of a sum in gross is created, are assignable.13 Under another provision of the Revised Statutes of thatstate,14 it is held that the former statutory rule is equally applicable to a trust growing out of personal property. In Graff v. Bonnett, 31 N. Y. 13, it is said by Hogeboom, J.: "I am aware that Mr. Justice Cowen, in Kane v. Gott, 24 Wend. 641, and Assistant Vice-Chancellor Sandford, in Grant v. Van Schoonhover, 1 Sandf. Ch. 336, have contended for the contrary doctrine, in arguments of much ingenuity and force; but I think the great preponderance of authority is in the opposite direction, and that the rule has been recognized and acted upon for so long a period, and with such general acquiescence, that it has become a law of property, and ought not to be invaded." This case (Graff v. Bonnett) is regarded as settling "the mooted question of statutory construction, making applicable to trusts of personalty the provision prohibiting alienation of the interest of the

(11.) Bramhall v. Ferris, 14 N. Y. 45; Campbell v. Foster, 35 N. Y. 365. See Hadden v. Spader, 20 Johns. 554; Donavan v. Fink, Hopk. 59; Pettel v. Chandler, 3 Wend. 621.

(13.) Graff v. Bonnett,31 N. Y. 9; Campbell v. Foster, 37 N. Y. 370, 371; Hawley v. James, 16 Wend. 118, 165.

(13.) 1 R. S. 730, § 63.

(14.) 1 R. S. 773, §§ 1, 2.

beneficiary in trusts of land." Campbell v. Foster, 35 N. Y. 372.14

By a statute of Illinois it is provided that, "Whenever an execution shall have been issued against the property of a defendant, ou a judgment at law or equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money or thing in action, due him, or held in trust for him, and to prevent the transfer of any such property, money, or thing in action, or the payment or delivery thereof to the defendant, except when such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgment, out of any personal property, money or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not. Provided that no answer made to any bill filed under this and the preceding section shall be read in evidence against the defendant on the trial of any indictment for fraud charged in the bill."'15 In Michigan: "Whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property, or things in action, belonging to the defendant, or held in trust for him, and to prevent the transfer of any such property, money or things in action, or the payment or delivery thereof to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded

(14.) See, also, the following cases, supporting the same view: Hallett v. Thompson, 5 Paige, 583; Gott v. Cook, 7 Paige, 531; Clute v. Bool, 8 Paige, 83; Howe v. Van Schack, 7 Paige, 222; Degran v. Clason, 11 Paige, 135.

(15.) Rev. Stat. Ill., 1877, chap. 22, § 49.

1. LIBEL-NEWSPAPER NOT PRIVILEGED.-A newspaper is never exempt from liability where other publications of libel would not be excused.

2. ATTACKS ON PUBLIC OFFICERS. Persons in public employment are subject to the fullest criticism for their conduct in which the public is interested, but are not to be falsely traduced.

3. NON-ELEctive OfficER-ONLY COMPLAINT TO PROPER AUthorities Privileged.—Where an officer is not elected by the public but appointed by the municipal government, e. g., a city or district physician, no libel against him is privileged except a bona fide representation made without malice to the proper authority complaining on reasonable grounds.

4. LIBEL AGAINST CITY PHYSICIAN.-A newspaper article charging a city physician with causing the death of a patient by introducing scarlet fever into his system during vaccination, is libelous and not privileged.

This was an action of libel, brought against the proprietor of the Detroit Evening News, for publishing in that paper an article charging plaintiff with causing the death of an infant child, by introducing scarlet fever into its system during the operation of vaccination, which operation was alleged to have been performed by the use of the trochar. The case was tried in the superior court of Detroit, and there the utterance was held to be privileged becanse plaintiff was a city physician. CAMPBELL, C.J., after stating the facts of the case, said:

That the article, if not privileged, was libelous is beyond question. The authorities on the non-actionable character of spoken words have no necessary bearing on the character of written or printed libels. The doctrine is elementary that written articles which in any way tend to bring ridicule, contempt, or censure on a person are libelous, and are actionable unless true or privileged. This article not only traced the death of one person and the sickness of another to plaintiff, but laid the blame on his willful misconduct upon sordid motives. It was not claimed on the trial, and the plea disclaims the truth of the principal charge that the trochar was used-whether its use was or was not improper.

We are, therefore, not required to discuss the somewhat extraordinary proposition that the city

Board of Health are authorized to determine ex cathedra the methods of medical treatment.

The question is simply whether such false and damaging charges as have a necessary tendency to ruin the reputation and business of a medical man, may be made without responsibility to legal redress, simply because he happens to be a city physician.

It is not and cannot be claimed that there is any privilege in journalism which would excuse a newspaper when any other publication of libels would not be excused. Whatever functions the journalist performs are assumed and laid down at his will, and performed under the same responsibility attaching to all other persons. The greater extent of circulation makes his libels more damaging, and imposes special duties as to care to prevent the risk of such mischief, proportioned to the peril. But whatever may be the measure of damages, there is no difference in liability to suit.

Allowing the most liberal rule as to the liability of persons in public employment to criticism for their conduct in which the public are interested, there certainly has never been any rule which subjected persons public or private to be falsely. traduced. The nearest approach to this license is where the person vilified presents himself before the body of the public as a candidate for an elective office, or addresses the public in open public meetings for public purposes. But even in such cases we shall not find sup port for any doctrine which will subject him without remedy to every species of malevolent attack.

But where a person occupies an office like that of a city or district physician, not elected by the public, but appointed by the council, we have found no authority, and we think there is no reason, for holding any libel privileged except a bona fide representation made without malice to the proper authority, complaining on reasonable grounds. The case of Purcell v. Sowles, 1 C. P. D. 781, affirmed on appeal, 2 C. P. D. 215, is a case as nearly like the present one as is often found; and, while the court of appeal-on this point differing from the lower court-held the office of public physician gave the public an interest in having it properly filled, it was held no discussion or publication was privileged of facts charged against him, except when made in the course of a lawful proceeding against him.

The good sense of such a rule can hardly be doubted. Every man's reputation is as sacred as his property. He can not complain when the truth is told. But he can always complain of falsehoods, which are not told in an honest attempt to make him responsible to a proper tribunal, or in some other performance of duty. The publication in such cases puts him in a direct way of having the truth established, and the wrong can not actually be done without furnishing its antidote.

If a medical officer is charged in the public press with professional misconduct, the immediate and necessary effect is to destroy confidence in him, and prevent him from gaining a livelihood by his profession. The readers of the paper have no means of investigation, and may never have. The charge may never reach an investigation, and he

may have no means of compelling one. If he is obliged to put up with such a wrong, the consequence will be monstrous. The law can not recognize any such immunity from responsibility, nor can the rights of individuals be so trifled with.

The case of Dickson v. Hilliard, L. R. 9 Ex. Ch. 79, sums up the cases of privileges very neatly and briefly. In that case, without contemplating any petition, or any other method of examining into the facts, two days after an election, the agent of one of the candidates sent to an agent of the other a document charging plaintiff with bribery. This was held not privileged; and the court, in deciding the point, mentioned the various decisions of privileged communications outside of those which were never questioned, and puts them in three classes. The first includes such cases as Harrison v. Bush, 5 El. & B. 344, where a bona fide attempt was made to have a magistrate removed from office by appealing to a person in authority, It was claimed that the application should have been made to the Chancellor instead of to a Secretary of State, but held that, as the Queen herself was the acting power, a communication made to either .officer was in effect made to her, and privileged if made in good faith to redress a grievance.

The second class included communications like those made by military officers to courts of inquiry, or to the proper authority, to aid in the prosecution of such inquiry. Dawkins v. Lord Rokeby, L. R. 8 Q. B. 255, affirmed, 7 H. L. 744; 2 Cent. L. J. 491, was such a case.

The third class included those cases in which information was given by one who was under a legal or moral duty to give it to another who had a right to ask it. The most familiar instance of this is in the answering inquiries concerning servants.

But, as it was very well pointed out, there was no right to make untrue and injurious statements concerning others, when they are not made to persons having the right and power to investigate, and in an honest attempt to invoke said investigation or answer such inquiry.

In our opinion the libel in the present case was not privileged, and the plaintiff was improperly deprived of his remedy.

The judgment must be reversed with costs, and a new trial granted.

Marston and Graves, JJ., concurred.

Cooley, J., concurred upon the facts of this particular case.

after the local option law has gone into effect in that locality, in consequence of a popular vote, and such llcenses are void.

2.ON THE TRIAL OF A PROSECUTION FOR VIOLATING THE LOCAL OPTION LAW, it is competent to prove that a majority of the legal voters voting on the question whether liquors shall be sold in any city, town or district did not vote against such sale: but it is not competent to prove by parol evidence that the requisite number of notices were not posted, or that they were not posted the length of time before the election that the act required.

3. WHEN AN ORDER DIRECTING THE ELECTION TO BE HELD AND A CERTIFICATE OF THE RESULT ARE PRODUCED and found in substantial compliance with the requirements of the act, the "local option law" is prima facie in force in the city, town or district to which the order and certificate relates, and the only question open for inquiry is whether a majority of the legal votes cast in said election were cast against the sale; and on this issue the burden is on the defendant.

4. WHEN THE LOCAL OPTION LAW TAKES EFFECT in a given locality, it becomes operative as a whole and suspends pro tanto al! inconsistent laws relating to the same subject, and any one violating that law must be prosecuted and punished under its provisions and not under the provisions of the general laws.

APPEAL from Meade Criminal Court:

D. R. Murray for appellant; Attorney-Genera Moss for appellee.

COFER, J., delivered the opinion of the court: The appellant was indicted in the Meade criminal court in December, 1876, for the offense of keeping a tippling-house "in said county." The indictment was in the usual form, and did not allege at what particular place in the county the alleged offense was committed. The Commonwealth introduced evidence establishing a prima facie case, and the appellant read in evidence a license granted to him by the Meade county court,licensing him to keep a tavern at his house in Garnettsville,in said county, with the privilege of retailing liquor therein, covering the time embraced by the indictment and evidence for the prosecution. The Commonwealth then put in evidence, from the orderbook of the county court, a certificate of the county judge, county clerk and sheriff of Meade county, certifying that "at an election held in District No. 5, Garnettsville, in said county, on Saturday, the first day of May, 1875, being a general election, and the sense of the qualified voters of said district being taken on the question, 'Are you in favor of the sale of spiritu ous, vinous or malt liquors, in this district?' upon due comparison and addition, the vote stood thus: For, 116 votes; against, 158 votes." The appellant then introduced and read the order of the county court ordering the election to be held, and offered to prove that only four notices of the election had been posted in the district, and that they were not so posted as much as twenty days before the day of the election. To this evidence the commonwealth objected, and the objection was sustained.

The court instructed the jury in substance—that the license read to them afforded the defendant no protection, and that if he had, between the 20th of

November and the 20th of December, 1876, sold spirituous liquors or wine, or a mixture of either, in a house in Garnettsville, to be drunk in the house where sold, or on premises adjacent thereto, or sold and the same was drunk in the house where sold, or on adjacent premises, they should find him guilty-if he so sold as often as twice-of keeping a tippling-house, and if he sold but once, of retailing merely. The jury returned a verdict of keeping a tippling-house, and the court rendered judgment thereon for $60, the fine prescribed by the General Statutes for that offense. From that judgment this appeal is prosecuted.

The act of the Assembly generally called the "Local Option Law" (Bullitt & Feland's Statutes, 946), provides in sections 1, 2, 3 and 4 for the holding of elections in cities, towns and civil districts on the order of the county court, made pursuant to the petition of not less than twenty legal voters of such city, town or district, for the purpose of taking the sense of the legal voters thereof upon the proposition whether or not spirituous. vinous or malt liquors shall be sold therein; and section 5 provides that if it shall be found that a majority of the legal votes cast at the election provided for in the preceding section were given against the sale of spirituous, vinous or malt liquors, it shall be the duty of the examining board to certify that fact, which certificate shall be delivered to the county clerk, and by him safely kept until the next regular term of the county court, at which time the county judge shall have the same spread on the order book of his court, and said entry of the certificate in the order book, or a certificate in the order book or a certified copy thereof, shall be prima facie evidence in all prosecutions under said act. Section 6 provides that "after the entry of the certificate of the examining board, as above provided for, in the order book of the county court, it shall be unlawful for any person to sell any spirituous, vinous or malt liquors in said district, town or city to any person, and any person who sells any such liquors in said district, town or city shall, upon conviction, be fined the sum of not less than twenty-five dollars nor more than one hundred dollars for each offense.

The appellant contends that, inasmuch as the general law empowers the county court to grant tavern licenses with the privilege of retailing liquors, and the "local option law" does not declare that no such license shall be granted after it goes into effect in any given locality, a license granted after that event is valid until reversed or annulled by a direct proceeding. The act declares that after the certificate of the board of examiners is entered on the order book of the county court, it shall be unlawful for any person to sell liquors in the district, town or city to which the certificate applies. This language is plain and needs no construction. That which the law denounces as unlawful cannot be made lawful by a license granted by an order of the county court. Such an order is void and cannot afford protection against the penalties denounced by law against those guilty of the forbidden act.

It is also contended that the election and certifi

cate are void if the requirements of the act were not strictly pursued in all matters relating to the election, and, as it is provided that the certificate when entered on the order-book of the county court is prima facie evidence, it is competent to introduce parol evidence on the trial of prosecutions for violating the act to show that its provisions were not complied with, and that it therefore never went into effect in consequence of the vote.

The only facts required to be certified by the examining board are that an election was held to take the sense of the qualified voters of the district, town or city, upon the question whether or not spirituous, vinous or malt liquors should be sold therein, and that the majority of the legal votes cast were against such sale. As those are the only facts required to be certified, they are the only facts of which the certificate is any evidence at all.

It would, therefore, be competent to prove that the certificate is untrue in either or both of these respects, but it is not competent to prove by parol evidence that the requisite number of notices were not posted, or that they were not posted the length of time before the election that the act requires. No provision is made for any inquiry into these questions. And when an order of the county court directing the election to be held, and a certificate of the result, are produced and found in substantial compliance with the requirements of the act, the local option law" is prima facie in force in the district, town or city to which the order and certificate relate, and the only question open for inquiry is whether a majority of the legal votes cast in said election, that is for and against the sale of liquors, were cast against such sale. On this issue the burden is on the defendant.

But we are of the cpinion that in localities where the act goes into effect, it becomes operative as a whole, and suspends pro tanto all inconsistent laws relating to the same subject. Being in force in Precinct No. 5, in Meade county, it at the same time deprived the appellant of the protection his license would otherwise have given him, and relieved him from liability to the penalty denounced by the statute relating to taverns and tippling houses. If he has violated the local option law, he should have been prosecuted and punished under its provisions, and consequently had a right to have the fine against him fixed by the jury at not less than $25 nor more than $100, instead of having it fixed by the court at $60, as prescribed by the general law.

Moreover, as under the indictment in this case the Commonwealth could have proved the keeping of a tippling-house in any part of Meade county, we think the appellant could not be legally convicted under it of an offense which he could only have committed in precinct No. 5.

An indictment under the act should charge the defendant with the offense of selling spirituous, vinous and malt liquors without a license therefor, and contain a statement of the acts done by him which constitute the offense, and of the place where the acts were done, as in civil district No. 5, in Meade county, and that the defendant had no