RECENT CASES. 2ig tiffs, and granted the perpetual right to use the water-power. There was also an agree- ment in the deed that when the water-power should be insufl5cient to operate both the mill and elevator, the elevator should have the preference. A afterwards sold the mill to defendants. //<?/</, that the grant and agreement were binding on defendants. J/o/- tell v. Farmer's Protective Ass'n, 53 Pac. Rep. 327 (Colo., Sup. Ct.). The right to use the water-power was an easement, and the agreement that the elevator should have the preference in case of shortage in the water supply a covenant in its aid. The court does not seem to distinguish between the easement and the cov- enant. In England the only exception to the rule that the burden of a covenant does not run with the land is the so-called spurious easement of fencing. In Morse v. Aldrich, 19 Pick. 449, Massachusetts has held that where the covenant is in aid of an easement, the burden runs, and that case has been generally followed in this country. The decisions in regard to covenants concerning party walls are based on this doctrine. The present case is within the principle and seems sound. To secure a beneficial use of the easement, it is necessary to carry out the terms of the covenant. This can only be done effectually by making a covenant run with the land to which the easement attaches. It has been held that a covenant to pay rent runs with the land. Carleyv. Lewis, 54 Ind. 23. However, as there is an adequate remedy for the recovery of rent, this is imposing an unnecessary incumbrance on the land, and seems to be an unwar- ranted invasion of the general rule that the burden of a covenant does not run with the land. Property — Equitable Attachment. — X, a resident of Rhode Island, had ob- tained a verdict in Massachusetts against Y, in an action of tort for personal injuries, but judgment had not been entered upon the verdict. Held, that the verdict is not property which the plaintiff, a creditor of Y, can reach by a bill in equity, for the pur- pose of satisfying his debt. Bennett v. Sweet, 51 N. E. Rep. 183 (Mass.). The nature of the claim by X against Y was not changed by the verdict. Stone V. Boston, etc. Ry., 7 Gray, 539. Therefore the real question in the case is whether the plaintiff could reach the right of action itself by a bill in equity. In the absence of statute, a right of action for a strictly personal tort does not survive to the repre- sentatives of the injured person. Mass. Pub. St., c. 165, §1. It is not assignable, People v. Tioga Common Pleas, 19 Wend. 73, nor does it pass to an assignee in insol- vency. Stone V. Boston, etc., Ry., supra. A right of this kind cannot be reached by trustee process. Thayer v. Southwick, 8 Gray, 229. Consequently, since it is of such a personal and contingent nature as to have none of the elements of property, the decision, that it is also beyond the reach of a bill in equity, seems clearly right. Property — Estoppel — Right of Way. — The owner of a piece of land over which there was a right of way, conveyed it to plaintiff with covenants of general warranty. Later he acquired the dominant tenement and conveyed it to defendant. Held, that defendant is estopped from claiming the right of way over plaintiff's land. Hodges V. Goodspeed, 40 Atl. Rep. 373 (R. I). In America, covenants in a deed are effectual to pass after-acquired title by estop- pel. Rawle, Covenants, 5th ed., 367. This is often applied, even against a bona fide purchaser. White v. Patten, 24 Pick. 324. Contra, Calder v. Chapman, 52 Pa. St. 359. The extinguishment of an easement by such an estoppel seems at first a strange step, but it is one which an American court might naturally be expected to take. To apply this doctrine against a bona fide purchaser, however, as in the principal case, is much more contrary to the spirit of the registry laws than in the case of the passing of title to the land itself, as it is obviously even harder to make out any constructive notice from the records. See 1 1 Harv. Law Rev. 344. Property — Parol Antenuptial Agreement — Statute of Frauds. — Held, that a postnuptial settlement by the husband in favor of the wife in fulfilment of an oral antenuptial agreement to settle specific property in consideration of the marriage is not effectual against the husband's creditors. Flory v. Houck, 40 Atl. Rep. 482 (Pa.). This case represents the prevailing doctrine in this country. Browne, St. of Frauds, 5th ed., § 224. There are decisi ms to the same effect in England. Randall . Morgan, 12 Ves. 67 ; Warden v. Jones, 2 De G. & J. 76. Warden v. Jones, however, which was cited with approval in the principal case, has been adversely criticised in 5 Jur. n. s. (Part II) 46, and is hardly to be reconciled with Ex parte Whitehead, 14 Q. W. D. 419. It is generally recognized that an oral agreement for the conveyance of land is a valid contract. The Statute of Frauds siraply imposes an obstacle to its enforcement. If the husband, in recognition of his moral duty, removes this obstacle by conveyance, the transaction is in no sense gratuitous and should stand against his creditors. This is the view taken when the creditors of a trustee of land, under an oral trust, attempt to
