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179. PRINCIPAL AND SURETY — Bond — Liability of Sureties.-An agreement between a contractor and a subcontractor provided that the latter should complete the work, pay for the same, and for the materials used, and indemnify the contractor against loss; but the accompanying bond merely bound the obligors to complete the work, and save the obligee harmless, without any provision that they should pay for the labor and material: Held, that the sureties were not llable to one who furnished materials at the instance of the principal obligor.-DUNLAP V. EDEN, Ind., 44 N. E. Rep. 560.

180. PRINCIPAL AND SURETY-Deputy Sheriff's Bond. -Bond given by deputy to a sheriff, with condition to faithfully discharge all duties of such deputy, and to account for and pay over to the sheriff all money which might come to the deputy's hands by virtue of his office. This is a private bond or contract between On it the sheriff the parties to it, not a public one.

may maintain an action to recover taxes collected by the deputy as such, without first paying such taxes to the public treasury.-POLING V. MADDOX, W. Va., 24 S. E. Rep. 999.

181. PRINCIPAL AND SURETY-Release of Surety.-The mere fact that the principal obligor on a bond given for the faithful performance of his duties as agent is already indebted to the obligee, and the failure of the latter to divulge that fact to the sureties at the time the bond is executed, will afford the sureties no defense to an action thereon if no artifice was used to deceive them.-PALATINE INS. CO. OF MANCHESTER, ENGLAND, V. CRITTENDEN, Mont., 45 Pac. Rep. 555.

School Lands - Presumption of 182. PUBLIC LANDTitle.-A patent, regular in form, issued by the gov ernor of the State for 80 acres of school land, conveys a prima facie title to the patentee.-RICHARDS V. GRIFFITH, Kan., 45 Pac. Rep. 600.

183. RAILROADS-Injuries- Contributory Negligence. -A deaf person who attempts to cross a railroad track by a path used by the public as a convenience, without · BIRlooking for approaching trains, is negligent. MINGHAM RAILWAY & ELECTRIC CO. V. BOWERS, Ala., 20 South. Rep. 345.

184. RAILROAD COMPANY-Accident at Crossing-Contributory Negligence. One who, after dark, ap. proached a crossing with which he was familiar, driving a gentle horse, under control, at a very moderate gate, and who, for a distance of 500 feet before reaching the crossing, could have continuously seen the headlight of the engine by which he was killed from a point three-quarters of a mile away, was chargeable with contributory negligence in attempting to cross the tracks before the train passed.-GROESBECK V. CHI. CAGO, M. & ST. P. RY. Co., Wis., 67 N. W. Rep. 1120.

185. RAILROAD COMPANIES-Fires.-A railroad company, which negligently sets fire to premises, is not liable for damages which the exercise of ordinary care by the owner of the property might have prevented.AUSTIN V. CHICAGO, M. & ST. P. RY. Co., Wis., 67 N. W. Rep. 1129.

186. RAILROAD COMPANIES- Franchise- Surrender. Under Rev. St. § 1763, which provides that, where a corporation shall have suspended its ordinary and lawful business for one whole year, it shall be deemed to have surrendered its rights and franchises, "and shall be adjudged to be dissolved," such suspension does not ipso facto dissolve the corporation, but furnishes a cause for its dissolution by the judgment of a competent court.-MYLREA V. SUPERIOR & ST. C. RY. Co., Wis., 67 N. W. Rep. 1138.

187. RAILROAD COMPANY Receiverships Preferen tial Claims-Damages.-When a receiver of a railroad has been appointed in a suit for the foreclosure of a mortgage upon the road, and no order has been made, as a condition of such appointment, for the payment of claims for damages, a judgment against the railroad company for damages, caused by its negligence in the operation of its road, subsequent to the mortgage and before the receivership, is not entitled to payment by

the receiver in preference to the mortgage debt.FARMERS' LOAN & TRUST Co. v. NORTHERN PAC. R. CO., U. S. C. C. (Oreg.), 74 Fed. Rep. 431.

180. RAILROAD COMPANIES-Right of Way.-After a right to use land as part of its right of way had been granted to a railroad company, such company fenced its right of way excluding such land; and thereafter the grantor conveyed the land to plaintiff, who inclosed the same, and used it for crops and pasturage, openly and continuously, without the assent of the company, for more than 15 years: Held, that plaintiff acquired title by adverse possession. -MATTHEWS v. LAKE SHORE & M. S. RY. Co., Mich., 67 N. W. Rep. 1111. Tax.189. RAILROAD COMPANY Street Railroads The "park tax" provided for by Acts 1882, ch. 229, and Acts 1894, ch. 550, is a tax on the gross receipts of "street railway companies" in the city of Baltimore, imposed in consideration of the franchise accorded such companies to locate and operate their tracks on the public streets, and has no reference to an electric railroad originally constructed outside the city, on a private right of way, purchased by legislative authority, from a turnpike company, though a portion of such line is subsequently brought within the city by an extension of the territorial limits.-MAYOR, ETC., OF BALTIMORE V. BALTIMORE, C. & E. M. PASS. R. Co., Md., 35 Atl. Rep. 17.

190. RAILROAD COMPANY-Street Railways.-A municipal consent to the laying of "a street railroad" in and along the streets of the municipality is not a consent to the laying of two distinct street railroads.-WEST JERSEY TRACTION CO. v. CAMDEN HORSE RAILROAD Co., N. J., 35 Atl. Rep. 49.

191. RAILROAD LAND GRANTS-Indemnity.-A railroad company, to which a grant has been made by congress of alternate sections of public land, on each side of its road, with the right to select other lands, within a limited distance beyond such alternate sections, in lieu of lands sold or otherwise disposed of by the gov. ernment, cannot select indemnity lands on one side of its road, to make good losses sustained on the other side.-SOUTHERN PAC. R. Co. v. SMITH, U. S. C. c. (Cal.), 74 Fed. Rep. 588.

192. REAL ESTAE AGENTS-Commissions.-Defendant gave to an agent an option for the sale of land on commission, and the agent found a purchaser, who entered into a land contract with defendant, whereby the premises were to be conveyed as soon as an ab. stract was furnished showing good title in the grantor. The abstract furnished did not show a good marketable title in defendant, and the purchaser refused to complete his contract: Held, that the agent was entitled to his commission.-STRANGE V. GOSSE, Mich., 67 N. W. Rep. 1108.

193. REAL ESTATE BROKERS-Commission.-Under a contract by the terms of which a real estate broker was to receive a commission for his services if he found a purchaser: Held, he has not found a purchaser within the meaning of the contract until he has produced such purchaser to his principal, the owner.-BAARS V. HYLAND, Minn., 67 N. W. Rep. 1148.

When a - Adoption of Contracts. 194. RECEIVERS court of equity takes control, through a receiver, of a trust estate, in proceedings based on the insolvency and fraudulent management thereof, it is not more bound than in the case of proceedings for the foreclosure of liens to carry out all the contracts of the insolvents; but no executory contract is binding on the receiver until adopted by him, and it is the duty of the receiver to refuse to adopt such a contract which would prove so burdensome as to imperil the fund.-GENERAL ELECTRIC CO. OF NEW YORK V. WHITNEY, U. S. C. C. of App., 74 Fed. Rep. 664.

Adverse Conveyances 195. RELIGIOUS SOCIETIES Possession.-Under Declaration of Rights, 1776, art. 34, prohibiting conveyances to religious societies except for certain purposes, a conveyance without designating the purposes for which it is made is void. Though such a deed is void, an entry under it would constitute

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adverse possession to the extent of the boundaries contained in it, so as to perfect title in the religious society by continued possession for 20 years as against the grantor and his heirs.-TRUSTEES OF ZION CHURCH OF CITY OF BALTIMORE V. HILKEN, Md., 35 Atl. Rep. 9.

196. REMOVAL OF CAUSES-Amount in Controversy.When a party has procured the removal of a cause from a State court to the United States circuit court, upon an averment that the amount in controversy is over $2,000, he ought not to be heard, upon appeal or error, to suggest that the circuit court had no jurisdiction, because the amount in controversy was less than the minimum jurisdiction of that court, solely because the judgment finally rendered is less than the jurisdictional amount.-EUSTIS V. CITY OF HENRIETTA, U. S. C. C. of App., 74 Fed. Rep. 577.

197. REMOVAL OF CAUSES-Complaint and Petition.A case cannot be removed as one arising under the constitution and laws of the United States, unless that fact appears by the plaintiff's statement of his claim, unaided by any allegations in the petition for removal. -STATE OF FLORIDA V. CHARLOTTE HARBOR PHOSPHATE Co., U. S. C. C. of App., 74 Fed. Rep. 578.

198. RES JUDICATA.-An order of the probate court in the joint final settlement of administrators' accounts, awarding a certain sum to one of the administrators for extra services, is not res judicata between the administrators as to the right of the one to whom the allowance was made to the entire sum.-OAKLEY V. OAKLEY, Ala., 20 South. Rep. 335.

200. SALE-Place of Delivery.-One contracting for a car of fruit without any particular car being called for is entitled to damages, in case of non-delivery, on the basis of the amount of fruit in an ordinary car.-SEEFELD V. THACKER, Wis., 67 N. W, Rep. 1142.

201. SALE-Rescission.-The use by the buyer of the articles purchased for 30 days after discovery of the fraudulent representations made to the buyer at the time of the sale will deprive him of the right to rescind the sale.-FOSTER V. ROWLEY, Mich., 67 N. W. Rep. 1077.

202. SALE-When Executed.-In determining whether a sale is executed or executory, the rule is applied that, where anything remains to be done to the chattels for the purpose of ascertaining the price, as by weighing at a certain time in the future and feeding in the meantime, these things shall (in the absence of circumstances sufficiently indicating a contrary intention) be held to be a condition precedent to the vesting of title in the purchaser, though the particular chattels are ascertained.-RESTAD V. ENGEMOEN, Minn., 67 N. W. Rep. 1146.

203. SALE OF SHEEP-Breach of Contract.-Ewe sheep which are pregnant in October and November are not in an unhealthy condition, within a contract of sale of ewes which requires them to be "in healthy condition at time of delivery."-OLSON V. PORT HURON LIVESTOCK ASSN., Mont., 45 Pac. Rep. 549.

Evidence

204. SLANDER Res Gestæ.-In an action for slander brought against a priest for words alleged to have been spoken concerning the plaintiff from the pulpit, a previous occurrence on the same day, out of which trouble arose between the parties, was part of the res gesto, and was proper to be shown as bearing on the question of malice.-PROVOST V. BRUECK, Mich., 67 N. W. Rep. 1114.

205. SPECIFIC PERFORMANCE-Contract to Convey.A contract between lessor and lessee provided that, on the expiration of the lease, the lessor or his personal representative should convey to the lessee, if the latter

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so desired, the fee of the premises, and stipulated that, if the parties could not agree on the price, it should be determined by two arbitrators, mutually chosen, or by an umpire to be appointed by the arbitrators in case they disagreed: Held that, as the stipulation for determining the price was not essential to the validity of the contract, a court of equity should disregard it, and, in case the parties to the contract are unable to agree on the price, enforce specific performance against the lessor or his personal representative, on payment of a fair consideration, to be determined by the court.-SCHNEIDER V. HILDENBRAND, Tex., 36 S. W. Rep. 784.

206. TAXATION-Seizure of Chattels-Liability of Collector.-A tax collector is not liable for the value of a chattel which was seized for taxes under a warrant fair upon its face, even though demand for the return thereof be made before sale.-CURTISS V. WITT, Mich.. 67 N. W. Rep. 1106.

207. TELEGRAPH COMPANIES-Duty to Deliver Message.-Defendant received a message addressed to the sendee at P, a country post office, at which it had no telegraph station, notifying the sendee of the illness of his brother-in-law, and contracted to send the message from its nearest station to the sendee by special messenger, payment of the additional price for the messenger being guarantied. The sendee lived four miles from P, and between it and the station to which the message was sent: Held, that defendant was required to deliver the message by special messenger, if the sendee, by reasonable efforts, could have been found.-WESTERN UNION TEL. Co. v. DRAKE, Tex., 36 S. W. Rep. 786.

208. TELEGRAPH COMPANIES-Failure to Deliver Message. In an action brought by the addressee of a telegram against the telegraph company, to recover damages because of its failure to promptly deliver the message, the plaintiff's rights must be determined by the contract made by the sender of, the message with the telegraph company. He cannot repudiate the contract made for his benefit, and still recover damages for the failure of the company to perform it. -RUSSELL V. WESTERN UNION TEL. Co., Kan., 45 Pac. Rep. 598.

209. TOWNS-Bridges - Power of Legislature.-The legislature may require towns specially benefited by a bridge across a river to contribute to its construction and maintenance, though it is wholly without their territory.-STATE V. WILLIAMS, Conn., 35 Atl. Rep. 24.

210. TOWNSHIP TRUSTEE-Right to Take Bond.-A township trustee, in contracting for the erection of a school house, is not inhibited from taking a bond from the contractor, conditioned that the contractor will fulfill his contract, and pay for the materials used and labor employed.-WILLIAMS V. MARKLAND, Ind., 44 N. E. Rep. 562.

211. TRIAL-Jury

Impaneling.-Under Const. art.

1, § 9, guarantying to the accused "a speedy public trial by an impartial jury of the county," the action of the court in directing the sheriff to summon a special venire entirely from the country districts of the county is illegal, and entitles the accused to a new trial, if convicted, though no injury be shown.-ZANONE V. STATE, Tenn., 36 S. W. Rep. 711.

212. TRUST-Agent Taking Title to Himself.-Where an agent for the purchase of mineral interests in lands purchased the full title to certain land, paying for the same with money of the principal, but taking title to himself, he holds the title to the mineral interests therein in trust for the principal, and such trust can be enforced by a grantee of the principal against the agent or his heirs, though the principal may have been indebted to the agent in an amount equal to the value of the land.-MILNER V. RUCKER, Ala., 20 South. Rep. 510.

It is neither the province nor the intention of this JOURNAL to enter into the domain of polities and discuss questions of purely political character. But it does not seem to us to be out of our way to touch upon a legal question presented by one of the planks of the platform adopted at the Democratic convention at Chicago. We refer to that wherein it is declared that they "favor such legislation as will prevent for the future the demonitization of any kind of legal tender money by private contract." This seems to aim at procuring legislation to render the "gold clauses" nugatory. As to the political question involved or as to the expediency of such legislation we have nothing to say. But whether such a measure would be constitutionally sustainable is, of course, a matter of interest to the profession. While the clauses of the constitution inhibiting legislation impairing the obligation of contracts is not binding upon congress, a strong argument is made by constitutional advisers against the validity of congressional legislation of the kind contemplated, not upon the ground of express restraint, but of inherent lack of power. As is shown by an article which recently appeared in this JOURNAL (43 Cent. L. J. 155), in the various "legal tender" decisions sustaining the validity of government notes as payment, exceptions had been uniformly made of contracts stipulating for a specific kind of money. It has not been deemed necessary for the assertion of federal sovereignty in the department of finance to hold that, because the payment of money, although a specific kind of moneywas provided for, any form of money must be accepted. On the contrary, express contracts for payment of coin have been treated like contracts for the delivery of any specific commodity. In Bronson v. Rodes, 7 Wall. 229250, the opinion of the Supreme Court of the United States by Chief Justice Chase, contains this language: "A contract to pay a certain number of dollars in gold or silver coin is, therefore, in legal import, nothing else than an agreement to deliver a certain weight of standard gold, to be ascertained by a count of coins, each of which is certified to contain a definite proportion of that weight.

It is not distinguishable, as we think, in principle, from a contract to deliver an equal weight of bullion of equal fineness. It is distinguishable, in circumstances, only by the fact that the sufficiency of the amount to be tendered in payment must be ascertained; in the case of bullion, by assay and the scales, while in the case of coin it may be ascertained by count." The same doctrine was also laid down in Butler v. Horwitz, 7 Wall. 258, and other cases reviewed in the article above referred it. Upon the exact question presented here, viz., as to the validity of legislation having for its object the restriction of private contract to the extent indicated, there seems to be a dearth of authority. The New York Law Journal in the course of an interesting review of this question mentions a California case bearing upon it. After the passage of the legal tender act by congress the legislature of California enacted a statute commonly called the "Specific Contract Law," providing for the enforcement in terms of contracts made payable in a specified kind of money or currency. In Carpenter v. Atherton, 25 Cal. 564, it was held that such State statute was not in derogation of or in conflict with the laws of congress making United States notes lawful money and a legal tender of debts, and under such statute a judgment might be rendered and enforced, payable in the kind of money specified in the contract or obligation on which it was rendered. In one of the opinions of the California supreme court occurs this language: "Both a contract to pay a sum of money in gold coin, and a contract to sell and deliver coin at a future day, create a debt in a general sense, and in that respect stand on the same footing. But they do more. The party agreeing to pay or deliver gold coin at a future day not only creates a debt which he agrees to pay or discharge, but he also waives the privilege which the law would have guaranteed to him had he not voluntarily renounced it, and takes upon himself an obligation to pay it in a specific kind of lawful money, and nothing else. The waiver and obligation are essential conditions and parts of the consideration of the contract, without which we must presume the contract would not have been made. The agreement to pay in coin is as much a part of the consideration as the agreement to pay at all, and the presumption is that an ample equivalent

has been received for the promise. The parties, then, are competent to contract-the contract is not against public policy—is not prohibited by law-is payable in a lawful kind of money, and is a lawful contract." Other cases touching the subject are Wallace v. Eldredge, 27 Cal. 498; Harding v. Cowing, 28 Cal. 213; Legal Tender Cases, 12 Wall. 659-548; Trebilcock v. Wilson, 12 Wall. 687; Maryland v. Ry. Co., 22 Wall. 105; Juilliard v. Greenman, 110 U. S. 421-449; Hagar v. Reclamation Dist., 111 U. S. 701; Woodruff v. Miss., 16 S. C. Rep. 820. Under the doctrine laid down sound lawyers will be inclined to agree with the New York Law Journal that "it is at least doubtful whether congress would have authority to legislate against the "gold clause." If contracts to pay good coin are simply engagement for the delivery of a specific commodity, how can congress say that the citizen shall not be permitted to make and enforce a contract any more than one for iron and cloth." The contracts passed on in Bronson v. Rodes and Butler v. Horwitz, supra, were made before the passage of the legal tender act. Yet even under such circumstances it was not deemed essential to the vindication of the power to borrow money or to coin money and regulate the value thereof, or any other federal function, that contracts for payment in coin should be treated otherwise than an ordinary transaction between individuals for the sale and delivery of merchandise. Such contracts were for payment in gold and silver coin, but the argument for putting a contract for coin on the same basis as contracts for ordinary commodities is even stronger where a single specific coin such as gold is named. All will agree that congress cannot interfere with and assume to regulate the business dealings of citizens except under some power expressly or impliedly granted by the constitution.

reputation in the family," which is admissible in matters of pedigree, or to establish the facts of birth, marriage or death, is confined to declarations of deceased members of the family, and family history and traditions handed down by declarations of deceased members, in either case made ante litem motam, and originating with persons presumed to have competent knowledge of the facts stated; and evidence of the opinion or belief of the living members of a family as to the death of another member is not within the rule and is inadmissible, and that a person's death cannot be established by general reputation among his living friends and acquaintances. Two of the members of the court dissent from its conclusion.

RAILROAD COMPANY-STREET RAILWAYNEGLIGENCE CROSSING.-In the current number of the American Law Register we find some interesting comments upon the recent case of Consolidated Traction Co. v. Scott, 34 Atl. Rep. 1094, wherein the Court of Errors and Appeals of New Jersey very justly decided that when a street car propelled by electricity, is stopping at a crossing to receive and discharge passengers, it is not the duty of one who wishes to cross the street to look for cars approaching on the other track, the rule as to steam railroads not applying to a street car track in a city street, where the rights of the company and of the public are equal; and that therefore when a boy, nearly eight years old, walked across a street behind a standing car, with out looking for cars on the other track, and was struck and killed by a car approaching without warning on the other track in the opposite direction, his view of it being obstructed by the standing car, the questions of negligence and contributory negligence were for the jury.

This rule coincides with that adopted in Driscoll v. Market St. Cable Ry. Co., 97 Cal. 553, 1893, but is in direct opposition to

Hun (N. Y.), 39, 1891; Reich v. Union Ry. Co., 78 Hun (N. Y.), 417, 1894; Thompson v. Buffalo Ry. Co., 145 N. Y. 196, 1895. When the person who attempts to cross behind a standing car has just alighted from it, one would naturally suppose that the rule in regard to steam railroads would be applied, i. e., that an alighting passenger or an intending passenger going to take a train, has a right to presume that the track will be kept clean in order to enable him to reach the station or the train. B. & O. R. R. Co. v. State, 60 Md. 449, 1883; Gaynor v. Old Colony & Newport Ry. Co., 100 Mass. 208, 1868; Klein v. Jewett, 26 N. J. Eq. 474, 1875; Armstrong v. N. Y. Cent. & H. R. R. Co., 64 N. Y. 635, 1876, affirming 66 Barb. (N. Y.) 437; Brassell v. N. Y. Cent. & H. R. R. Co., 84 N. Y. 241, 1881; Terry v. Jewett, 17 Hun (N. Y.), 395, 1879.

In Illinois and Ohio it has accordingly been held that such a passenger is not guilty of contributory negligence in failing to look before crossing the other track. Chicago City Ry. Co. v. Robinson, 127 Ill. 1, 1888; Cincinnati St. Ry. Co. (Ohio), 43 N. E. Rep. 207, 1896. The New York cases are inconsistent: Dobert v. Troy City Ry. Co., 36 N. Y. Suppl. 105, 1895, following the Illinois rule, and Doyle v. Albany Ry. Co., 39 N. Y. Suppl. 440, 1896, adopting the Pennsylvania doctrine mentioned below; and the Supreme Court of Pennsylvania in Busby v. Phila. Traction Co., 126 Pa. 559, 1889, while acknowledging that the stop, look and listen rule did not apply, holds, that such a case must be tested "upon the universal rule which requires due and ordinary care in crossing public streets, as in all the other transactions of life."

The Supreme Court of Indiana, in a recent case before it, admitted the existence of the general rule in the case of a passenger alighting from a street car at the usual stopping place, but held that when he alighted on the other side of the street, before it stopped, and while he had plenty of time to cross in safety (the car that struck him being then two hundred feet away), it must be presumed that he was guilty of contributory negligence. Evansville St. R. R. Co. v. Gentry, 44 N. E. Rep. 311.

CRIMINAL LAW-HOMICIDE-DECLARATIONS OF DECEASED.-The opinion of the Supreme

Court of South Carolina in State v. Arnold, 24 S. E. Rep. 926, will probably be interesting whether the reader does or does not concur in the reasoning and approve of the result. The appeal was from a trial for murder, in which it appeared that the accused was jealous of deceased and had threatened to kill him; that late one night deceased went to a woman's house and was given permission to remain; that, while standing in the open door, he was shot by some one standing outside the door; that deceased staggered off a few yards outside the house, and on his call the woman and her elder child, who were in bed, hurried to him; that, in reply to a question by them, deceased answered, "I am shot;" and to another question, "Yes, Charlie (accused) has shot me to death." The interval between the shot and the answers was given by the woman and child at from 5 to 10 minutes but the circumstances were so minutely described by them as to show that the time was even less. It was held that the answers were a part of the res gesta. The court says:

On the 19th day of November, 1895, one George Merryweather was shot, from which wound he almost immediately thereafter died. The defendant, Charles Arnold, was at the January, 1896, term of the Court of General Sessions for Abbeville county, in this State, tried before Judge Earle and a jury, for having murdered said deceased. He was found guilty of murder, but recommended to the mercy of the court. Whereupon he was sentenced to imprisonment for life at hard labor in the State penitentiary. His appeal to this court is based upon alleged errors of the circuit judge in the admission of certain testimony, in his refusal to strike out said testimony, and in his refusal to grant a new trial because such testimony was not admissible. Let the grounds of appeal be reported. Thus it appears that the appeal is based upon the question of the competency of certain testimony.

Was such testimony competent? The underlying history of this tragedy, as appears from the record, seems to be this: Charles Arnold, although a married man, seems for some years to have maintained a criminal intimacy with one Lucy Wardlaw, both parties belonging to the African race, and as the result of such relations she bore him two children. The deceased George Merryweather, had been paying attention to said Lucy Wardlaw with a view to mar. riage. Indeed, such suit of the deceased had gone so far that an engagement of marriage subsisted between them. These circumstances seem to have stirred Charles Arnold's nature into a most deadly jealousy, if we are to judge the same from the many threats of death to both the deceased and Lucy Wardlaw, in case she tolerated the attentions of Merryweather, or in the event of their marriage. So deeply was Arnold stirred by this feeling of jealousy, he was unmoved when the poor woman explained to him that she was weary of her life of sin, and wished