Eq. Jur., § 1351; Holsman v. Boiling Springs Bleaching Co., 14 N. J. Eq. 335; Campbell v. Seaman, 63 N. Y. 518; Johnson v. City of Rochester, 13 Hun, 285; Swindon Water-Works Co. v. Wilts. & Berks. Canal Co., L. R., 7 H. L. 697; 14 Eng. Rep. 100; Clarnes v. Hofferthau, Petrie's L. Rep., 8 Ct. App. 125, 142; Goldsmid v. Tunbridge Wells Imp. Com., L. R., 1 Ch. App. Cas. 349, 354. This is not a case where the defeudants threatened only to commit a single trespass, but they threatened to commit, and claimed the right to repeat the trespass every year. Here a preventive action was proper to prevent an irreparable injury within the meaning of the equitable rule, and also to avoid a multiplicity of suits. (2) The defendants were properly united. They claimed a common right hostile to the plaintiff. They asserted a public right common to many. In such a case all the parties asserting the common right may be united as defendants in an action by one who seeks to overthrow the common claim, and establish his right against all claimants. Varick v. Smith, 5 Paige, 137; Dimmock v. Bixby, 20 Pick. 368, 377: Woodruff v. North Bloomfield, etc., 8 Saw. 628; Hill v. Newington, 57 Cal. 56. Myers v. Phillips. Opinion by Earl, J.

[Decided Dec. 9, 1884.]

DEED-CONSTRUED AGAINST GRANTOR-WHEN RULE DOES NOT APPLY-INTENT TO GOVERN-LIFE ESTATE OR FEE-POWER TO SELL-DISCRETION-MAY NOT BE DEL

EGATED. (1) The rule governing controversies between grantor and grantee, by which the language of a conveyance is required to be taken most strongly against the grantor, has no application when the dispute occurs between parties claiming under the same conveyance, and are each entitled to the benefit of the same rule of construction. If the disposition which the owner of property desires to make does not contravene any positive prohibition of law, his control over it is unlimited, and the only office which the courts are called upon to perform in construing his transfers of title is to discover and give effect to his intentions. In the case of repugnant dispositions of the same property contained in the same instrument, the courts are from necessity compelled to choose between them; but it is only when they are irreconcilably repugnant that such a disposition of the question is required to be made. If it is the clear intent of the grantor that apparently inconsistent provisions shall all stand, such limitations upon and interpretatious of the literal signification of the language used must be imposed as will give some effect if possible to all of the provisions of the deed. Salisbury v. Andrews, 19 Pick. 250; Norris v. Beyea, 13 N. Y. 273; Jackson v. Blodgett, 16 Johns. 178. "It is a cardinal rule in the construction of contracts, that the intention of the parties is to be inquired into, and if not forbidden by law is to be effectuated, and whenever the language used is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into the situation of the parties, and of the subject-matter of the instrument." French v. Carhart, 1 N. Y. 102. This rule is now by statute made imperative upon judicial tribunals, and cannot be evaded when the intention of the grantor is made clearly apparent by the language of the conveyance. 3R. S. (7th ed.) 2205, § 2. De P. executed to the wife of his son a deed containing words sufficient and appropriate to convey an absolute fee. The deed declared that it was made by way of advancement to be charged against the share of the son in the grantor's estate, and to enable the grantee to sell and convey in fee simple if she should desire so to do. It also contained a covenant upon the part of the grantee, that upon sale by her she should cause the proceeds to be properly invested, and at her de

cease the premises, or the principal only realized from a sale, should be conveyed to the issue of her marriage with the grantor's son living at the time of her decease or their legal representatives. The grantee died without having sold, but devised the same to her son, with power to her executor to sell and convey. In an action to compel specific performance of a contract to purchase said real estate plaintiff claimed under a conveyance from said executor. Held, that whatever construction is given to the instrument, the grantee still takes all of the interest which the grantor intended to confer upon her, and by confining her estate to that of a life tenant only, as is clearly contemplated by the deed, a door is closed against the possible defeat of the expressed intention of the grantor to transmit the corpus of the estate to his own descendants. Goodtitle v. Bailey, Cowp. 600. If it be held that she takes the fee of the land, the covenant in the deed would restrain her from impairing the principal of the estate during her life, and if her interest is adjudged to be a life estate merely, she would of course be entitled to enjoy its rents, issues and profits during her life. We think that a construction which gives to Mary Livingston De Peyster a life estate only effectuates the design of the grantor, and is abundantly supported by authority. Jackson v. Myers, 3 Johus. 387; Moore v. Jackson, 4 Wend. 68; French v. Carhart, 1 N. Y. 96; Post v. Hover, 33 id. 593; Hunt v. Johnson, 44 id. 27; Saunders v. Hanes, id. 354; Terry v. Wiggins, 47 id. 512; Wager v. Wager, 96 id. 164; Smith v. Bell, 6 Peters, 512. It will be observed that while the power to sell is specially mentioned, careful provisions are also inserted for the disposition of the proceeds of the sale. They are to be immediately invested in real or personal property, and the principal is to be conveyed unimpaired to the issue upon the decease of the grantee of the power. It appears therefore that its exercise after the death of the grantee was impliedly forbidden, and that the grantee had no disposing power over the property conferred upon her. Her interest is confined to the enjoyment of the rents, issues, and profits during her life. These provisions do not authorize either of the expressed trusts permitted by the statute, and are therefore ineffective to create such an estate, but do contain an authority to do an act in relation to lands which the owner might himself lawfully perform, and there being other persons than the grantee entitled to the benefits, if any there are, derivable from the performance of the act, it takes effect as a power in trust. 3 R. S. (7th ed.) 2188, §§ 74, 95; Russell v. Russell, 36 N. Y. 587; Delaney v. McCormack, 88 id. 174. This power is a general power, since it authorizes the grantee to convey the property to any alienee whatever (§ 77), but it is neither imperative nor beneficial, since its exercise is left altogether to the discretion of the grantee, and other persons than herself are to be benefited by its execution ($$ 79, 96), while the absolute power of disposition is vested in the donee. Yet under the statute the express directions given as to the investment as to the proceeds, and the limitations imposed as to her authority to control its ultimate destination, show that it was not a power to be executed for her sole benefit, and the creation of a fee in the grantee of the deed by implication is therefore precluded (§§ 81, 85). (2) The terms of the power confer its exercise upon the donee alone, and being a trust to sell lands and invest the proceeds, it was purely a discretionary power, whose execution could not be delegated to another, or restrained or enforced upon the application of any of the parties. Newton v. Bronson, 13 N. Y. 592; Lewin on Trusts, 296; Mayor of New York v. Stuyvesant, 17 N. Y. 42; Perry on Trusts, 287, 408. The power and the trust connected therewith necessarily determine upon the death of the grantee, and the property after that event went to the

remaindermen, discharged of any authority over it by any person whatsoever. Coleman v. Beach. Opinion by Ruger, C. J. [Matters calling for discretion may not be delegated. 20 Eng. Rep. 523, 4; 29 Am. Rep. 108; 75 N. Y. 388; 19 W. Dig. 472; 53 Miss. 128-132; 22 Eng. Rep. 301.]

[Decided Jan. 20, 1885.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

REMOVAL OF CAUSE-CASE ARISING UNDER LAWS OF UNITED STATES.-Plaintiffs sued defendant, a United States marshal, in the State court, for trespass in seizing and carrying away books of account belonging to them, but the declaration failed to allege that defendant acted in his official capacity. Defendant demurred generally, and thereupon filed a petition for removal of the case to the Federal court, alleging in his petition that he was a United States marshal, and acted under an attachment issued by the United States Circuit Court in making the alleged seizure, "if any seizure actually occurred," and that the suit was one arising under the laws of the United States, aud involved the construction of such laws. Held, that the record did not present a case within the jurisdiction of the Federal court, and that the cause was not removable. Railroad Co. v. Mississippi, 102 U. S. 135, 141. The case of Gold Washing & Water Co. v. Keyes, 96 U. S. 199, was very much like the present. That was a bill in equity to restrain the defendants from proceedings alleged to constitute a nuisance, to which there was a general demurrer. The cause was removed from the State court to the Circuit Court of the United States as a suit arising under the Constitution or laws of the United States." Upon the pleadings alone, as was said by the Supreme Court, it was clear the defendants had not brought themselves within the statute. The complaint simply set forth the ownership by the complainant of his property, and the acts of the defendants which it was claimed caused a private nuisance. No right was asserted under the Constitution or laws of the United States, and nothing was stated from which it could in any manner be inferred, that the defendants sought to justify the acts complained of by reason of any such authority. It resulted therefore that the validity of the judgment of the Circuit Court remanding the cause, and brought into question by the writ of error, depended upon the sufficiency of the facts set forth in the petition for removal. For the purposes of the transfer of the cause," said the court (p. 202), "the petition for removal, which the statute requires, performs the office of pleading. Upon its statements, in connection with the other parts of the record, the courts must act in declaring the law upon the question it presents. It should therefore set forth the essential facts not otherwise appearing in the case, which the law has made conditions precedent to the change of jurisdiction. If it fails in this it is defective in substance, and must be treated accordingly." Cir. Ct., E. D. Mich., July, 1884. Rothschild v. Matthews. Opinion by Matthews, J.

CORPORATION-FRAUDULENT CONVEYANCES-MORTGAGE PRIORITY-ULTRA VIRES.—(1) A transfer of all the assets of one corporation to another, whereby, through a mere change of name, an attempt is made to defraud creditors, or which would operate a fraud, will not be upheld as against creditors, and the transferee, if he takes with notice, takes cum onere. (2) If in such a case the transferee mortgages its property to secure the payment of bonds, the lien of creditors of *Appearing in 22 Federal Reporter.

the old corporation upon the property transferred will be prior in right to that of bondholders with notice. The doctrines laid down in the following cases establish respondent's claim to priority against the specific property transferred: Thomas v. Railroad Co., 101 U. S. 82; Hibernia Ins. Co. v. St. Louis & N. O. Transp. Co., 13 Fed. Rep. 516; Harrison v. Union Pac. Ry. Co., id. 522; Cass v. Manchester Co., 9 id. 640; Brum v. Merchants' Co., 16 id. 140; Abbott v. American Co., 33 Barb. 578. (3) There is also another and controlling proposition. The old corporation was created by special act of the General Assembly in 1857. Its provisions were minute and specific in many essential details, not only as to obligations and rights of stockholders, but as to their duties, respectively, to each other and to the public, particularly to the State, to which annual reports were to be made, etc. The construction of the road was to be commenced within ten years and completed within twenty years thereafter; a fair record of the whole expense of constructing the road to be kept, with the privilege reserved to the State to purchase the same, at rates named, at the expiration of fifty years. It is clear that the action of the corporation in transferring all its property thus formed was beyond its corporate authority, and evasive of its chartered obligations. The conclusive effect of what was done was to fasten a lien on the assets transferred prior in right to the mortgages. Cir. Ct., E. D. Mo., Oct., 1884. Blair v. St. Louis, etc., R. Co. Opinion by Treat, J.

TRADE-MARK-PARTIES OF SAME NAME-DECEPTION -INJUNCTION.-While a party cannot be enjoined from honestly using his own name in advertising his goods and putting them on the market, where another person, bearing the same surname, bas previously used the name in connection with his goods in such manner and for such length of time as to make it a guaranty that the goods bearing the name emanate from him, he will be protected against the use of that name, even by a person bearing the same name, in such form as to constitute a false representation of the origin of the goods, and thereby inducing purchasers to believe that they are purchasing the goods of such other person. Cir. Ct., E. D. Wis., Oct., 1884. Landreth v. Landreth. Opinion by Dyer, J.

TAXATION-INTER-STATE COMMERCE-LOGS IN TRANSIT.-Logs cut on lands owned by a Minnesota corporation in Wisconsin, and hauled down to a river, and piled on the ice to await the opening of the river to be floated down into Minnesota, to be there manufactured into lumber, cannot be considered as in transit from one State to another in a commercial sense, and may be assessed and taxed in Wisconsin. The mere intention in such a case, where there has been no sale or transfer of shipping out of the State, at some indefinite time, depending upon some circumstance so uncertain as the weather and the floods, would not amount to putting the property in actual or legal transit so as to bring them within the principle recognized in the adjudged cases. See State v. Carrigan, 39 N. J. L. 35; Blount v. Monroe, 60 Ga. 61; People v. Niles, 35 Cal. 282; Carrier v. Gordon, 21 Ohio St. 605; State v. Engle, 34 N. J. L. 425; Ogilvie v. Crawford Co., 7 Fed. Rep. 745; Passenger cases, 7 How. 416; State Freight Tax case, 15 Wall. 232; State Tax on Railway Gross Receipts, id. 284; Conley v. Chedic, 7 Nev. 336; Hurley v. Texas, 20 Wis. 665; Erie Ry. v. State, 31 N. J. L. 531; Brown v. Maryland, 12 Wheat. 442; Crandall v. Nevada, 6 Wall. 35; Almy v. State, 24 How. 169. Cir. Ct., W. D. Wis., , 1884. Nelson Lumber Co. v. Lorain. Opinion by Burn, J.

TAXATION-CHARTER EXEMPTION OF CAPITAL STOCK OF RAILROAD-EXEMPTION OF INDIVIDUAL INTERESTS

OF STOCKHOLDERS

POWER OF LEGISLATURE.-(1) The perpetual exemption of the capital stock of a railroad corporation from taxation by the provisions of its charter covers the individual interest therein of the stockholders; and a subsequent law imposing a tax on the shares owned by them impairs the obligation of the contract between them and the State, and is unconstitutional and void. Union Bank v. State, 9 Yerg. 490; Railroad Co. v. Gaines, 97 U. S. 67. In Farrington v. Tennessee, 95 U. S. 679, the bank charter provided that the bank 'shall pay to the State an annual tax of one-half of one per cent. on each share of the capital stock subscribed, which shall be in lieu of all other taxes." It was held that the words "in lieu of all other taxes," as thus used, meant in lieu of all other taxes that might be imposed on that subject of taxation, viz., the shares of the capital stock; and that accordingly it excluded a tax on those shares assessed upon them against the individual shareholder as his property. Mr. Justice Swayne, delivering the opinion of the court, said: " There is no question before us as to the tax imposed on the shares by the charter, but the State has by her revenue laws imposed another and an additional tax on these same shares. This is one of those other taxes' which it had stipulated to forego. The identity of the thing doubly taxed is not affected by the fact that in one case the tax is to be paid vicariously by the bank, and in the other by the owner of the share himself. The thing thus taxed is still the same, and the second tax is expressly forbidden by the contract of the parties. After the most careful consideration we can come to no other conclusion. Such, we think, must have been the understanding and intent of the parties when the charter was granted and the bank organized. Any other view would ignore the covenant that the tax specified should be in 'lieu of all other taxes;' it would blot those terms from the context, and construe it as if they were not à part of it." (2) The Legislature of a State may distinguish between the interests of a corporate body in its capital or capital stock and that of the individual shareholder as separate subjects of taxation; so that one may be taxed and the other exempt, or both governed by the same rule of taxation or exemption, at its discretion. Cir. Ct., M. D. Tenn., 1884. State of Tennessee v. Whitworth. Opinion by Matthews, J. BANKRUPTCY-PARTNERSHIP CREDITORS-PARTNER ASSUMING FIRM DEBTS.—(1) The rule that the joint estate must be applied to pay the joint debts and the separate estate to pay the separate debts is only applicable where the joint estate as well as the separate estate is before the court for distribution. U. S. v. Lewis, 13 N. B. R. 33. And where there is no joint estate the firm creditors, under such a state of facts as exist here, have a right to share in the separate estate. Blum. Bankr. 268; In re Pease, 13 N. B. R. 168. There is no joint estate here; for by agreement the assets of the firm of Lloyd, Hamilton & Co. still remaining in specie, are the separate estate of Wm. M. Lloyd, the same as if they had always been his individual property. Colly. Partn., § 894 (5th Am. ed.); Bullitt v. M. E. Church, 26 Penn. St. 108; Howe v. Lawrence, 9 Cush. 553. And it is quite immaterial that the assignees have kept a separate account of these assets. (2) Where one of the partners takes the firm assets and agrees to pay the joint debts, he becomes individually liable; and the partnership creditors may, at their option, prove against his estate in bankruptcy, and share pari passu with the separate creditors. Blum. Bankr. 563; In re Downing, 3 N. B. R. 181, 183; In re Long, id. 227; In re Rice, id. 373; In re Collier, 12 id. 266. Dist. Ct., W. D. Penn., Sept. 1884. Matter of Lloyd. Opinion by Acheson, J.

PATENTS-LICENSE-RECEIVER-PRACTICE-COMITY OF COURTS.—(1) A license to construct and use a patented invention is personal to the licensee, and thereceiver of a firm to which such a license has been granted will not succeed to the firm's right. Oliver v. Rumford Cheese Works, 109 U. S. 75. (2) Where a demand against a receiver does not involve the adminis. tration of the trust committed to him, but arises from his having taken unlawful possession of property not included in the trust, a suit will lie against him personally as for a trespass, even though he took possession of such property under an order of court. Hartell v. Tilghman, 99 U. S. 547; Barton v. Barbour, 104 id. 126. (3) In such cases, where the receiver has acted under an order of a State court in taking possession of the property, an application should be made to such court to correct its order before resorting to an action of trespass on the case in a Federal court. (4) If that course is not followed the Federal court will suspend proceedings before it until the application to the State court is made, in order to avoid a conflict of jurisdiction. Cir. Ct., E. D. Mo., Oct., 1884. Curran v. Craig. Opinion by Treat, J.

MARINE INSURANCE-PAYMENT OF PREMIUMS-DELIVERY OF POLICY CONTAINING RECEIPT-RATIFICATION OF AGENT'S ACTS-LEX LOCI-GENERAL LIEN-UNPAID PREMIUMS.-(1) The delivery of the policy of insurance to the assured, containing a receipt for the premium, estops the company, for the reason that the receipt is conclusive evidence of payment, to the extent at least that such payment is necessary to give validity to the contract. The company will not be permitted to say that no contract was made. 3 Kent Com. 260; Provident Ins. Co. v. Fennell, 49 Ill. 180; Basch v. Humboldt Ins. Co., 35 N. J. L. 429. (2) When the unauthorized act of an agent is ratified by the principal, the ratification relates back to the time of the inception of the transaction, and the act is treated throughout as if it were originally authorized. Story Ag., § 244. See also Soames v. Spencer, 1 Dowl. & R. 32 (16 F. C. L. 14); Moss v. Rossie Lead M. Co., 5 Hill, 137; Lawrence v. Taylor, id. 107; Hankins v. Baker, 46 N. Y. 670. The subject of the insurance was a Canadian vessel. The note, payable at a Canadian bank, was dated and signed in Canada. The policy, containing a receipt for the premium note, was delivered in Canada. The ratification, if ratification were needed, related back to what took place in Canada. It must be held therefore that the contract was made in Canada, and as a necessary result, that the case must be determined by Canadian law. Heebner v. Eagle Ins. Co., 10 Gray, 131, 143; Male v. Roberts, 3 Esp. 163; Thwing v. Great West. Ins. Co., 111 Mass. 93; Wood Fire Ins., § 93. (3) The law of New York creating a lieu in favor of underwriters for unpaid premiums of insurance has no relation to insurance on a foreign vessel, the contract for which is made in a foreign country. Moores v. Lunt, 4 T. & C. 154; affirmed, 60 N. Y. 649; Brookman v. Hamill, 43 id. 554. Having no privilege in Canada, there can be none anywhere. I am aware however that there is not entire unanimity among the authorities upon the last question considered, namely, whether the law of the contract or the law of the forum should be controlling. See The Maggie Hammond, 9 Wall. 435, 451, 452; Scudder v. Union Nat. Bank, 91 U. S. 406, 412, 413; Harrison v. Sterry, 5 Cranch, 289; The Union, 1 Lush. 137; Ogden v. Saunders, 12 Wheat. 213, 361. (4) No general lien is created by the maritime law in favor of the insurer for unpaid premiums. The affirmative of this proposition is held by the following authorities, where the lien is relegated to the lowest class of maritime privileges. The Dolphin, 1 Flippin, 580; affirmed in a qualified way, id. 592; The Illinois, decided on the authority of

The Dolphin, 2 id. 383; The Guiding Star, 9 Fed. Rep 521; affirmed, 18 id. 263. In this case the lien was sustained because given by a State statute upon vessels navigating the waters of the State or bordering thereon. The following cases decide against the lien: The Jenny B. Gilkey, 19 Fed. Rep. 127; The John T. Moore, 3 Woods, C. C. 61; The Robert L. Lane, 1 Low. 388, where the question is referred to, but not decided. See also the note to The Dolphin, in which the reporter has collected numerous authorities bearing upon the subject. The argument against the liens seems to me to have the most weight. That the contract of insurance upon a ship is in its nature maritime is no longer an open question. Insurance Co. v. Dunham, 11 Wall. 1. It is however a contract for the personal indemnity of the insured. The credit is given to him, not to the ship. The principle upon which the law recognizes a lien for necessaries is that the ship may thus be enabled to engage in the competitions of commerce. Security is given the material-man, it is true, but the chief benefit is to the ship. It enables her to sail. A contract of insurance in no way aids the ship. She sails no better and no faster because of the insurance. It puts no steam in her boilers and no wind in her sails. Dist. Ct., N. D. N. Y., 1884. Matter of Insurance Cos. Opinion by Coxe, J.

NEW JERSEY SUPREME COURT ABSTRACT.*

CONVERSION-DEMAND AND REFUSAL TO DELIVER.Where goods have been deposited with a person for any purpose, and any other person than the depositor demands them of the bailee, the latter is not liable to an action of trover until he refuses to deliver after a reasonable time taken and opportunity given to ascertain the true ownership of the property. Lee v. Bays, 18 C. B. 607; Carroll v. Mix, 51 Barb. 212; Alexauder v. Southey, 5 B. & Ald.247; Isaac v.Clark, 2 Bulst. 314. In this case the refusal to deliver the goods to the real owner was not grounded upon an expressed doubt as to the wife's interest in them, but was accompanied by

an unqualified denial of her title, and au assertion that they belonged to her husband. This refusal was a conversion. Hinckley v. Baxter, 13 Allen, 139; Thompson v. Rose, 16 Conn. 71; 2 Greenl. Ev., § 644. Wykoff v. Stevenson. Opinion by Reed, J.

OFFICER-USURPER OF PUBLIC OFFICE-NO ACTION FOR SALARY.-An unauthorized person gaining possession of a public office by force or fraud has no right of action against the public for the prescribed fees or salary for services rendered during such usurpation. The reasons which protect one who has performed the services belonging to a public office, under an appointment apparently regular and legal, in ignorance of and without the means of ascertaining defects in the title, and where his refusal to serve would leave a vacancy in office, whether such reason be weak or strong, have no application to a case like this. In such a case we cannot doubt that in some form the officer de jure would be entitled in law to demand and have compensation for the injury done him by such an intruder. If payment be made to the officer de facto the public will be protected from further claim, as the disbursing officer is not bound to know the title by which an actual incumbent holds, and the rival claims to the fund must be litigated between the individual claimants; but upon suit brought by the incumbent against the public for pay, his title will be inquired into. Dolan v. Mayor, etc., of New York, 68 N. Y. 274. And he must establish his right to be paid as between the plaintiff and the public represented by the defendant. Stuhr v. Curran, 15 Vr. 181, distinguished. Compensation *To appear in 46 N. J. L. Reports.

attached to the office is not promised to him by expression or legal implication, and the services are voluntarily rendered. Dill. Mun. Corp., §§ 168, 169, and cases cited; Hoboken v. Gear, 3 Dutch. 265; Smith v. Mayor, 37 N. Y. 518. Meehan v. Freeholders of Hudson. Opinion by Knapp, J.

CONSTITUTIONAL LAW-REGULATION OF COMMERCE— LICENSE FEES.-The provisions of the act for the better enforcement in Maurice river cove and Delaware bay of the act entitled "An act for the preservation of clams and oysters," is not repugnant to section 8, article 1, of the Constitution of the United States, as an attempt to regulate commerce between the States. The imposition of a license feel upon all boats engaged in planting or taking oysters in the said place, is not obnoxious to the requirement in the State Constitution that property shall be assessed under general laws and by uniform rules according to its true value. The Constitutions of other States contain provisions analogous to the requirement contained in ours, and wherever the courts have been called upon to construe them in regard to their application to assessments upon occupations in the form of license fees, they have been held inapplicable to the latter class of imposts. The almost, if not quite, unbroken course of decision has been in this direction, that these impositions are not taxes within the purview of the constitutional requirements. People v. Thurber, 13 Ill. 554; Cole v. Hall, 103 id. 30; Chilvers v. People, 11 Mich. 43: Youngblood v. Sexton, 32 id. 406; State v. Henry, 26 Ark. 523; Bohler v. Schneider, 49 Ga. 195; People v. McCreery, 34 Cal. 432; Cooley Tax., §§ 401, 402, 427. Johnson v. Loper. Opinion by Reed, J.

IOWA SUPREME COURT ABSTRACT.

MASTER AND SERVANT-RISKS OF EMPLOYMENTPERSONAL INJURY-MEASURE OF DAMAGES.-(1) The

dangers from snow-banks are inseparable from the operation of railroads when snow prevails and is removed from the track, and employees when they enter the service assume the risk of such dangers, and the railroad company is not chargeable with negligence in leaving the accumulations of snow which it removes from its tracks in proximity thereto, even though some danger to its employees engaged in the operation of its trains is created thereby. Dowell v. Burlington, C. R. & N. R. Co., 17 N. W. Rep. 901, followed. (2) In an action by the administrator of a fireman against a railroad company for damages for negligently causing intestate's death, in estimating the damages sustained it is proper to consider his calling at the time of his death, his ability, the amount of his earnings, and like circumstances, and the estimate should be made with reference to such facts as actually existed, and such as it is reasonably certain would have occurred in the future but for his death; but it is error to allow evidence that when firemen had sufficient experience, and had acquired the requisite skill, they were sometimes employed as engineers, and paid an increased compensation for their services. Brown, Adm'x, etc., v. Chicago, R. I. & P. R. Co. Opinion by Reed, J.