payment, exception has been uniformly inade 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 money-was 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., 229-250, the opinion of the Supreme Court of the United States by Chief Justice Chase, contains this language:

troops, mails and other government effects. taining the validity of government notes as The contention of the roads is, that they have the right to charge the government the same rates for transportation of its effects as they have individual shippers or travelers, while on the other hand, congress has made provisions that the compensation should not exceed half of the regular rate, the exact figures to be fixed by the secretary of war. Accordingly, under these acts of congress, only half rates have been paid by the government, and the roads desiring to have the matter settled, brought a test case under the court of claims act, in which the Atlantic and Pacific road being the plaintiff, in which it sought to recover the full fare for the transportation of a trooper 'A contract to pay a certain number of dolon its road for a distance of 428 miles, the lars in gold or silver coin is, therefore, in legal regular fare being $25.70, the government import, nothing else than an agreement to would not pay this, but offered $13.23, and | deliver a certain weight of standard gold, to be which was refused by the railroad, which im- ascertained by a count of coins, each of which mediately brought suit to recover the whole amount.

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

The decision of Judge Wilborn is a complete victory for the government, and as the laud grant roads include about one-half the mileage of the railroads of the country, the amount involved amounts to about fifty mil-tendered in payment must be ascertained; in lions annually. The decision, however, is not applicable to the land grant railroads alone, but applies to all the railroads in the country, and is not confined to government business, but involves the right of congress to fix the compensation for all charges by the railroads for United States commerce.

CAN A GOLD CONTRACT" BE ANNULLED
BY LEGISLATURE?

This has already become an interesting question in commercial circles in view of the clause of the platform adopted by the Chicago Convention, which declares "We will favor such legislation as will prevent for the future the demonetization of any kind of legal tender money by private contract."

"This clause," says the New York Law Journal, "seems to aim at procuring legislation to render the 'gold clause' nugatory, and whether such a measure would be constitutionally sustainable is of course a matter of serious interest. While the clause of the constitution inhibiting legislation impairing the obligation of contracts is not binding upon Congress, a strong argument may be made against the validity of congressional legislation of the kind contemplated, not upon the ground of express restraint, but of inherent lack of power."

the case of bullion, by assay and the scales, while in the case of coin it may be ascertained by count.'

'Again in Butler v. Horwitz, 7 Wall., 258-260, in the same court, it was remarked in the opinion by the same chief justice:

'A contract to pay a certain sum in gold and silver coin is, in substance and legal effect, a contract to deliver a certain weight of gold and silver of a certain fineness, to be ascertained by count. Damages for non-performance of a contract to deliver bullion or other commodity. But whether the contract be for the delivery or payment of coin or bullion, or other property, damages for non-performance must be assessed in lawful money; that is to say, in money declared to be legal tender in payment, by a law made in pursuance of the constitution of the United States. When, therefore, it appears to be the clear intent of a contract that payment or satisfaction shall be made in gold and silver, damages should be assessed and judgment rendered accordingly. It follows that in the case before us the judgment was erroneously entered. The damages should have been assessed at the sum agreed to be due, with interest, in gold and silver coin, and judgment should have been entered in coin for that amount, with

In the various 'legal tender' decisions sus-costs.'

The contracts passed on in Bronson v, Rudes 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 coiu money and regulate the value thereof, or any other Federal function, that contracts the payment in coin should be treated otherwise than an

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 ordinary transaction between individuals for 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 guaranted 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 contractthe contract is not against public policy-is not prohibited by law-is payable in a lawful kind of money, and is a lawful contract."

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. Congress certainly cannot interfere with and assume to regulate the business dealings of citizens except under some power expressly or impliedly granted by the constitution."

New Cases.

Cases filed in supreme court of Ohio since
August 12, 1896.

Error to the circuit court of Logan county.
5127. Wm. A. Taylor v. Harriet D. Morrison.
Henry J. May, James Kernan, for plaintiff.
Hamilton Bros. for defendant.

5128. The State of Ohio ex rel. AttorneyGeneral v. Louis E. Zeigle. Quo warranto. F. S. Monnett, for plaintiff. Burch & Johnson, for defendant.

5129. The Girard Fire & Marine Ins. Co. v. Kate Boyle. Error to the circuit court of Lawrence county. Davis & Bibbee, for plaintiff. Corn & Yates, for defendant.

5130. G. W. Barbour et al. v. The Franklin Fire Ins. Co. Error to the circuit court of Seneca county. McCauley and Weller, for plaintiffs. Seney & Sayler, for defendant.

5131. The Royal Ins. Co. v. Wm. W. Lockman. Error to the circuit court of Wood county. James Beverstock and Paxton, Warrington & Boutet, for plaintiff. Parker & Fries, for defendant.

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., 5132. Perry P. Maxwell v. Chas. H. Grifter. 687; Maryland v. Ry. Co., 22 Wall., 105; Juil-Error to the circuit court of Warren county. liard v. Greenman, 110 U. S., 421-449; Hagar J. D. Miller, Runyan & Stanley, for plaintiff. v. Reclamation Dist., 111 U. S., 701; Woodruff M. Clark and P. Gaynor, for defendant. v. Miss., 16 Sup. Ct. Rep., 820.

Under the doctrine laid down in the above quotations 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?

5133. Richard Kear v. Virginia Garrison et al. Error to the circuit court of Scioto county. D. Livingstone & A. T. Holcomb, for plaintiff. J. S. Dodge, for defendants.

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James B. Kennedy, of Youngstown, was nominated by acclamation for common pleas judge by the republicans of Trumbull, Mahoning and Portage counties, at a convention held at Warren, August 26.

Condonation is forgiveness for the past upon condition that the wrongs shall not be repeated; it is dependent upon future good conduct, and the repetition of the offense revives the wrong condoned; Heist v. Heist, (Neb.), 67 N. W. Rep., 790.

A deed of real estate, absolute in its terms, executed and intended as a security for a debt or loan, will be construed as a mortgage merely, as between the parties, and all others, except good-faith purchasers for value without notice; Names v. Names, (Neb.), 67 N. W. Rep., 751.

In the sale of land, a mutual mistake of the

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out as the land to be conveyed, to consist of one lot and a portion of another only; whereas, in fact, there was also included therein a portion of a third lot owned by the grantor, authorizes the grantee to have the deed, which conveyed only the first lot and a portion of the second, reformed, so as to include the portion of the third lot included within the fence; Ezell v. Peyton, (Mo.), 36 S. W. Rep., 35.

The supreme court of Florida, following the invariable rule that no legal sentence can be pronounced in a felony case upon a verdict rendered and received by the court during the

Entered at the Postoffice, Norwalk, Ohio, as second absence of defendant, has lately held that

class matter.

The clerk of the supreme court had a busy day last week in filing fifty-nine new cases, all from Lawrence county and involving the same question. The style of the suit is: Lindsey Kelly et al. v. W. H. Bryan et al.; in which the Exchange bank of Ironton, W. D. Kelly being its president, was sued by the depositors., The lower courts held that Kelly's sons, who had carried on the business of banking, were liable for the deposits. The amount involved is $35,000.

when the defendant in such a case voluntarily absconds while the jury are out considering their verdict, the proper practice is for the judge to declare a mistrial and discharge the jury, without receiving any verdict, after he becomes satisfied that the defendant cannot be produced within a reasonable time; and that if, after defendant in a felony case absconds, a verdict of guilty is received and the jury discharged during his absence, and sentence pronounced thereon by the court at a subsequent term, the verdict and sentence are mere nulliIties; Summeralls v. State, 20 So. Rep., 242.

George Kolker, chief clerk in the office of the clerk of the supreme court, has been appointed deputy auditor of Hamilton county.

The supreme court of Indiana, held that. where the evidence is absolutely silent as to the acts of a decedent from the time he left a street car at a street crossing till he was struck by a street car moving to the opposite direcThe court of errors and appeals of New Jertion on a parallel track, and such interval was sey recently decided that when a street car, long enough to have permitted him to propelled by electricity, is stopping at a crosscross the street in safety, it will not be pre-ing to receive and discharge passengers, it is sumed that he was free from contributory neg- not the duty of one who wishes to cross the ligence, though the car was run over the crossstreet to look for cars approaching on the other ing in a reckless and negligent manner; track, the rule as to steam railroads not applyEvansville St. Ry. Co. v. Gentry, Adm'r., 44 ing to street car track in a city street, where N. E. Rep., 311, the rights of the company and of the public are equal; and, therefore, when a boy, nearly eight years old, walked across a street behind a standing car, without 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; Consolidated Traction Co. v. Scott, 34 Atl. Rep., 1094.

It is not very often that Scriptural references are found in a lawyer's brief. But one that was submitted to Judge Kohler, of the court of common pleas at Akron, last week, was an exception. Several months ago, Thos. Knibb was sentenced to the workhouse by the mayor for sixty days, and ordered to pay a heavy âne, which Kibbs was unable to pay. His attorney, C. P. Humphrey, who claimed that the sentence was excessive, filed a bill of exceptions in the common pleas court. He has appeared a dozen times on Knibb's behalf, never receiving a cent for his services. Upon the brief which accompanied the bill of exceptions appeared the usual array of supreme court authorities, at the bottom of the list the judge was rather surprised to find a Scriptural reference. He looked it up and read: "Give this woman justice, for she wearieth me."

Remarks of the trial judge to the jury, to the effect that unless they agree he will keep them to the end of the term, as the county cannot afford to try the case over again, are grounds for reversal; Railroad Co v. McCue, 35 S. W. Rep., 1080.

The supreme judicial court of Massachusetts recently decided a very peculiar as well as interesting case, involving a very important question of law. The case arose by a city building a sewer in a public street, the soil of which opposite plaintiff's premises consisted of about three feet of gravel filling, upon about ten feet of peat and silt, below which was very fine sand and silt on quicksand. The soil of plaintiff's premises was of the same nature, and part of the same strata; the underlying sand contained a great deal of water, and while the sewer trench, which was twentysix feet deep, was being dug, it was kept free from water. A great deal of substraThe court, in the exercise of his discretion, tum of water-logged sand ran into the may keep a jury together during the term, un- trench from plaintiff's premises, and the surtil an agreement is reached, or it is ascer-face, being deprived of its subjacent and lateral tained no agreement can be reached; buc, out-support, cracked and sett ́ed, and his buildings side of this, he has no power or authority to were injured. Upon these facts it was held coerce or prevent a verdict. Except in open that the city was liable to him for damages. court, and in answer to questions propounded Three of the justices dissented on the authority to him, or to give instructions to them, or in of an English case. 4 L R. Exch 245, 1869, order to ascertain the probability of an agree- where it was decided that the owner of land ment, there is no law or authority for a judge had no right to the support of subterranean to hold any communication with a jury. waters, and could not recover damages from While the judge has the authority to keep the one who, by draining his own land, withdrew jury together until the end of the term, there such support from another, and caused his land is no warrant of authority for him to tell one to subside, and on the ground that quicksand or more of them, out of court, or all of them, which flowed so freely as to be raised by a in court, of the trouble and expenses of trials, and that he will keep them together until the pump ought to follow that analogy; Cabot v. term shall have expired. Kingman, 44 N. E. Rep., 344.