Ernst v. Morgan.

The act of 1885 provides for the appointment of such assistant, but denominates him "assistant clerk" instead of "deputy clerk." It is the same officer, but called by a different name. The act of 1876 provided that the deputy clerks should have no compensation from the county. The act of 1882 provided that they should have compensation from the county where the clerk was paid by a salary. As before stated, that act was held unconstitutional. The act of 1885 provides that there shall be an assistant clerk (giving the deputy clerk a new name under color of creating a new office), to be paid out of the county treasury, in counties where the fees &c. go to the county and the population is over sixty thousand. It is admitted that the last-mentioned act applies (as did that of 1882) to Camden county alone. That county is the only one in which the fees are, by law, paid over to the county, and it has a population of over sixty thousand. The act cannot be sustained unless that which is relied upon as a distinguishing characteristic to justify the legislation which, on its face, is partial and not general, is of such a nature as to mark the counties possessing it as peculiarly requiring exclusive legislation. Richards v. Hammer, 13 Vr. 435. But how does the fact that in a particular county the fees allowed to the clerk for services in the county courts indicate a necessity for the appointment in that county of an assistant clerk, to be paid out of the county treasury? Where those fees are paid into the county treasury, the clerk is paid for those services by a salary, in consideration whereof the fees go to the county. He is bound by law to perform the duties of his office, and if he needs assistance is bound to furnish it. The fact that the fees are paid into the county treasury, obviously is not evidence even of the amount of business done, and it is of itself no reason for requiring the county to pay the salary of an additional officer to assist the clerk in or relieve him from the discharge of official duties which he himself is bound by law to perform. The act itself does not present the characteristic of payment of fees into the county treasury, as being of itself sufficient ground to justify the exclusive legislation, but requires in addition that there be a population of over sixty thousand. The basis of the distinction is not popu

Smith v. Gummere.

lation; for, though the population be beyond sixty thousand, the additional officer is not to be appointed unless in that county it is by law provided that the fees &c. be paid into the county treasury. The act is not one providing that where the population is over sixty thousand there shall be an assistant clerk to be paid by the county, but it provides that there shall be such officer, so paid, where the population is over sixty thousand, if in that county the fees &c. go by law to the county, but not otherwise. It is obvious that the controlling characteristic relied upon to justify the legislation is the circumstance that the fees go to the county. The act is clearly within the constitutional prohibition against special legislation regulating the internal affairs of towns and counties. Freeholders v. Stevenson, 17 Vr. 173. There will be an injunction according to the prayer of the bill.

MARY K. SMITH

υ.

BARKER GUMMERE, administrator &c., et al.

The general guardian of an infant was also appointed its special guardian to sell certain lands, and gave different bondsmen in each capacity. From his imperfect mode of keeping his accounts, it is impossible to tell now which of the two funds should be credited with a certain investment. In a litigation, after his death and insolvency, between the ward and the sureties upon his respective bonds-Held, that each fund should be credited with one-half of the amount of the investment.

Mr. A. G. Richey, for Jonathan Steward, one of the sureties in both bonds.

Mr. J. S. Aitkin, for Samuel K. Wilson, one of the sureties in general guardianship bond.

Mr. James Buchanan, for W. J. Owens, one of the sureties in the special guardianship bond.

Smith v. Gummere.

Mr. G. S. Cannon, for General Mott's executrix.

THE CHANCELLOR.

On the coming in of the master's report, made under the order referring the accounts back to him, the question is presented as to which account, that of the general guardianship or that of the special guardianship, should be credited with the mortgage of $5,000 mentioned in the former opinion in this cause. Smith v. Gummere, 12 Stew. Eq. 27. The investment in that mortgage was made by the guardian March 31st, 1875. The assignment of the mortgage was made to him as "guardian of Mary K. Smith." The account of the general guardianship shows that at the date of the assignment there should have been a balance in the hands of the guardian (not including interest on balances in his hands) of about $3,000. The investment, therefore, could not have been wholly made with the money of the ward held by the guardian on that account. On the other hand, the $7,000 invested by the guardian in 1865 in United States treasury notes of the second and third series of the seven-thirty loan, on account of the special guardianship, were. returned to his hands by the "calling" of the securities in 1867 or 1868, six or seven years before the making of the investment in the mortgage, but there is no trace of that money after the report of investment of it in the government bonds in 1865. There is nothing to show whether he had that money, or any part of it, when the latter investment was made. Nor, on the other hand, is there any evidence that he had any money in hand on account of the general guardianship. It is impossible to say out of which fund the money was taken, or that it, or any part of it, was in fact taken from either. For the reason before given, it could not all of it have been taken from the general guardianship fund. The fact that the assignment was taken by the guardian as guardian simpliciter, and not as special guardian, is not of itself sufficient, under the circumstances, to give the general guardianship the benefit of the investment, nor does it materially aid in determining the question under consideration. It seems quite probable that in taking the assignment he did

Chew v. Cook.

not intend to hold the mortgage for the benefit of the ward's estate at all; for the mortgage was upon his own property, which he bought subject to it, and he wrote on the envelope containing the mortgage the word "canceled." Under the circumstances, equality will be equity. It will be just to regard the investment as having been made with the funds of both accounts, in equal shares, and to credit one-half of it to each.

MARY C. CHEW

υ.

HENRY Cook et ux.

An alley lying between two houses had been used for over forty years by the adjoining owners, for access to the rear of their houses, and to the lots behind, and belonging thereto. Both houses were destroyed by fire.-Held, that the easement in the alley was not thereby lost, and that whether complainant had forfeited her right thereto by placing the foundation of her house in the alley, in rebuilding (the evidence thereof being conflicting), should be determined by an issue at law before she could enjoin the defendant from appropriating the part of the alley next to his lot in rebuilding.

NOTE.-In Bangs v. Parker, 71 Me. 458, a deed contained this clause: "Reserving a pass-way from the road aforesaid, over or by said lot to the barn standing on the adjoining lot, being said Mary's [the grantor's] dwelling-house lot."Held, that the easement was not lost by the destruction of the barn which stood thereon at the time of the reservation. See Crain v. Fox, 16 Barb. 184; Henning v. Burnet, 8 Exch. 187; Pierce v. Dyer, 109 Mass. 377; Crossley v. Lightowler, L. R. (2 Ch. App.) 478.

The destruction of a party wall destroys the easement therein, Brondage v. Warner, 2 Hill 145; Sherred v. Cisco, 4 Sandf. 480; Hoffman v. Kuhn, 57 Miss. 746; Hieatt v. Morris, 10 Ohio St. 523; Partridge v. Gilbert, 15 N. Y. 601; but see Pope v. O'Hara, 48 N. Y. 446; Stevenson v. Wallace, 27 Gratt. 77.

Building over an alley which separates two houses, is not ordinarily an abardonment or loss of the easement therein, Stevenson v. Stewart, 7 Phila. 293; Atkins v. Boardman, 20 Pick. 291, 2 Metc. 457; Beecher v. People, 38 Mich. 289; Gerrish v. Shattuck, 132 Mass. 235; see Kean v. Asch, 12 C. E. Gr. 57; Kana v. Bolton, 9 Stew. Eg. 21; Ballard v. Butler, 30 Me. 94; Dowling v. Hen

Chew v. Cook.

Bill for relief. On final hearing on pleading and proofs.

Mr. F. C. Woolman, for complainant.

Mr. F. Voorhees, for defendants.

THE CHANCELLOR,

The bill is filed for an injunction to prevent the defendants from obstructing an alley by the erection of a building upon that part of it which is upon Mrs. Cook's lot. The premises are on York street, in the city of Burlington. The bill states that in 1844 the complainant's lot was owned by Henry M. Stowell, and the Mrs. Cook's (which adjoins it on the south) by Wade Jones, and that there was between the houses erected on the two lots an alley or passage-way of about four feet in width and about equally on each lot, the dividing line of the two properties being about the middle of the alley; and that for over forty years the respective owners of the lots used the alley in common, there being gates on each lot at the rear of the alley for passage into and from it. The bill further states that on the the 10th of December, 1876, the houses on both lots were destroyed by fire, and that within six months from the time of such destruction, the complainant erected a new house on her lot upon