the debtor corporation gave collateral security for the payment of indebtedness about to mature, and which it confessed its inability to meet. We have already seen that the transfer of the note, before maturity, as collateral security, and so indorsed that the bank became a party to the instrument, under obligation to make due presentment and give due notice of non-payment, was itself a sufficient consideration to constitute the bank a bona fide holder for value, within the recognized principles of the law-merchant. The presence, then, in the contract under which the note was indorsed and delivered to the bank of an additional consideration-the payment in advance of usurious interest-which the law declares to be vicious and illegal, ought not to destroy the entire contract of indorsement when there is a sufficient consideration, aside from the usury paid, upon which it may rest.

We are of opinion that no error of law was committed by the court below, and the judgment should be affirmed.

ABSTRACTS OF RECENT DECISIONS.

UNITED STATES SUPREME COURT.

October Term, 1879.

NEGLIGENCE-DAMAGES- MENTAL SUFFERING.In an action to recover damages for the negligent wounding of G by M, the court charged the jury that in computing the damages they might take into consideration "a fair compensation for the physical and mental suffering caused by the injury." Held, correct. Opinion by Mr. Chief Justice WAITE. In error to the Supreme Court of Utah. Affirmed.-McIntyre v. Giblin.

TRUSTEE'S SALE-FRAUD.-The fact alone that the price received at a sale under a trust deed was grossly inadequate, if the preponderance of testimony shows that the sale was duly advertised, and was fairly and properly conducted, and it appears that the inadequacy was not such as to shock the conscience or raise a presumption of fraud or unfairness, does not constitute a sufficient reason to impeach the genuineness or validity of the sale. Hill on Trustees. 152, note. 3 Wash. C. C. 546; 23 Md. 66. Opinion by Mr. Justice HARLAN. Appeal from the Supreme Court of the District of Columbia. Affirmed.-Clark v. Commrs. of Freedmans, etc. Co.

CONTRACT UNDER SEAL MAY BE VARIED BY PA ROL. A party to a contract imposing mutual obligations may accept, as performance by the opposite party, some other thing than that specifically designated; and if he does he can not afterwards insist upon exact performance. Notwithstanding what was said in some of the old cases, it is now a recognized doctrine that the terms of a contract under seal may be varied by a subsequent parol agreement. Certainly whatever may have been the rule at law, such is the rule in equity. Dearborn v. Cross, 7 Cow. 48; LeFevre v. LeFevre, 4 S. & R. 241; Fleming v. Gilbert, 3 Johns. 528. These are cases at law. Numerous others might be cited. Opinion by Mr. Justice STRONG. Appeal from the Supreme Court of the District of Columbia. Affirmed.- Chesapeake, etc. Canal Co. v. Ray. 7 Wash. L. R. 560.

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REMOVAL OF CAUSES-CONSTRUCTION OF ACT OF MARCH 3, 1875-RAILROAD-MECHANIC' LIEN.-The second section of the act of March 3, 1875, which provides for removals of suits from the State to the Federal courts, consist of two clauses, the first of which, as it relates to suits between citizens of different States, is this: That any suit of a civil nature, at law or in equity, now pending in any State court, where the matter in controversy exceeds, exclusive of costs, the sum or value of five hundred dollars * * in which there is a controversy between citizens of different States either party may remove said suit into the Circuit Court of the United States for the proper district." Held, 1. That in determining the right ot removal the court will consider the relation of the parties to the matter of the controversy rather than their relations as plaintiffs or defendants on the record, and if all the parties in interest on one side of the controversy, are citizens of a different State, or of different States, from all of those on the other side of the controversy, the case is removable. 2. In order to effect such removal all the persons or corporations belonging to the side which seeks the removal under this clause must unite in the application. 3. A petition for removal is sufficient in form when it shows on its face who are the applicants for removal, and is presented by counsel to the court, though it be not signed by the party, and though it may contain allegations of prejudice under the act of 1867, and is not sworn to, if it also has the allegations made necessary by the extract from the statute given above. 4. In a case pending when the act was passed, the application for removal must have been made at the first term after its passage; and before the trial is fairly commenced. But a fictitious effort to show that the trial has commenced by an offer of testimony before the court has decided to enter upon the trial or hearing of the case on its merits, will not defeat the right of removal. 5. The fact that the party asking the removal continues to prosecute or defend the suit after the State court has erroneously refused his application, does not waive that right, but he may, by writ of error to the highest court of the State, bring his case to this court, and that error will be a sufficient ground to revise the judgment of the State court. He may also proceed in the Federal court at the same time by filing the transcript there as the statute provides. 6. Under the statute of Iowa concerning mechanic's lien, where a railroad company had made a contract for the construction of a part of its road, and the contractors had begun to do the work, their lien on that part of the road is paramount to that of a mortgage subsequently made, covering the whole road while the contractors were at work. 7. A statement in the contract that the company will pay the contractors out of a certain fund-the subscriptions of a particular county is not such collateral security as will waive or affect the lien. Opinion by Mr. Chief Justice WAITE. Appeal from the Circuit Court of the United States for the Eastern District of Iowa. Reversed. Meyer v. Delaware Railroad Construction Co. 7 Wash. L. R. 572.

SUPREME COURT OF MINNESOTA.

October-November, 1879.

LANDLORD AND TENANT-COUNTER CLAIM. A cause of action in a tenant against his landlord for wrongfully interfering with his enjoyment of premises rented, is a counter claim in an action against him by the landlord to recover rent for a period including that of such interference. If a landlord does not by agree

ment with the tenant reserve a right to enter and make repairs, the fact that repairs are necessary from the unsafe condition of the building does not justify the landlord in entering for that purpose. Rule of damages in such case considered and held, that where the wrong consists in interrupting a regular and established business, the usual and ordinary profits incident to the business" are a proper element of damages. Such profits are not contingent or speculative in the sense that excludes profits from consideration as an element of damage. Where it is a mercantile business it is proper in order to show its value to prove the monthly sales for a considerable period before and after the interruption, and the usual percentage of net profits on sales in that trade. Opinion by GILFILLAN, C. J.-Goeble v. Hough.

NEW TRIAL-POWER TO ORDER-DIRECTING JUDGMENT ON FACTS FOUND.-In this case the cause having been tried by the court below without a jury, and a judgment rendered in favor of the defendant, the plaintiff appealed to this court. The only question in the appeal was: Who was entitled to judgment on the facts found by the court below-this court held that on such facts the plaintiff should have judgment and ordered accordingly, reversing the judgment of the court below. The respondent now asks that the order be modified so as to direct a new trial, instead of ordering judgment on the facts found, suggesting that the court below erred in its finding upon a material fact, without the existence of which fact the appellant could not be entitled to judgment. This court has the power to order a new trial in such a case instead of directing judgment on the facts found; and that is the proper course when it is made to appear that in the trial of any issue of fact the court below or the referee erred to the prejudice of the respondent, provided the fact be such that a different finding upon it from that made by the court below or referee would necessarily affect the judgment to be entered. If such error does not appear upon the record the respondent may show it here by affidavit, or by the minutes of the court or of the short-hand reporter.— State v. Galusha.

SUPREME COURT OF TENNESSEE.
September Term, 1879.

CRIMINAL LAW-DECOY OATH TO OFFICER IN CHARGE OF JURY..-By direction of the prosecutor thieves were informed that on a given night he would be away from home; the thieves came and were taken in the act. Held, that the prosecutor did not consent to the taking, and the thieves were properly convicted. Dodge v. Brittain, Meigs, 84; Kemp v. State. 11 Hump. 320. In the first case it is said: "A man may direct a servant to appear to encourage the design of the thieves, and to lead them on till the offense is complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed.

If a man is suspected of an intent to steal, and another to try him leaves his property in his way, which he takes, he is guilty of larceny. But it would not be the case if the master had directed the servant to deliver the property to the thief, instead of directing him to furnish facilities for his arriving at the place where it was kept. See Meigs' Rep. 86, 87. The form of oath required of the officer in charge of the jury must be strictly followed. Wallace v, State, decided December Term, 1877. Opinion by MCFAR LAND, J.-Sanders v. State. CONSTITUTIONAL LAW - PROVISION THAT SUBECT OF ACT MUST BE EXPRESSED IN ITS TITLE.

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-Section 12 of the act of March 23, 1875, ch. 94, which enacts that whoever shall buy any cotton, tobacco or other produce, merchandise or other property for cash, and shall sell, hypothecate or pledge the same to another, and use the proceeds thereof for any other: purpose than the payment of the seller, vendor or the party advancing thereon, or shall ship or convey, or otherwise make way with, or shall deliver to another any such cotton, tobacco or other produce or merchandise without payment to said seller or vendor or. party having advanced thereon, shall be guilty of a felony," etc., is unconstitutional and void, being in conflict with art. 2, p. 17, of the State Constitution, which provides that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title. It is found in an act entitled "An act to define the rights and duties and regulatethe liabilities of warehousemen and factors," but it applies to all sorts and conditions of men who buy and sell cotton, tobacco or other produce or merchandise or any species of property whatever, no matter from whom they buy or from whom they obtain an advance,. or to whom they sell the same. It is certainly notgermane or homogeneous with an act to define the rights and duties and regulate the duties of warehouse-men and factors. Opinion by SNEED, J.-Gossett v. State.

JUDGMENT VOID WHEN APPEARANCE OF ATTORNEY UNAUTHORIZED - PAYMENT BY TRUSTEE THOUGH ON VOID ORDER OF COURT PROTECTED STATUTE OF LIMITATIONS.-1. A person may by bill in equity dispute the authority of an attorney to appear for him and show that a judgment founded upon such an appearance is absolutely void. It was held in Ridgeway v. Bank of Tennessee, 11 Humph. 523, that a complainant might show in this mode that the sheriff's return that he had served the process was false, and that in fact the complainant had no notice of the proceeding at law, and the judgment was therefore void. "We see no difference in principle between that case and this. The complainant may as well be allowed to show that the appearance of the attorney waswithout authority as to show that the return of the sheriff was false. In both cases it rests upon the ground that no person should be held bound by a judg-ment against him, where he has had no notice in law, or day in court, and where in fact the court had no jurisdiction as to him. That the party in such case might have a remedy against the attorney or sheriff, does not alter the case or make the judgment valid. Shelton v. Tiffin, 6 How. 163.'' 2. A trustee holding property for a cestui que trust, who in good faith turns over said property to the clerk of the court un-der an order of the court, in a case where apparently the court had the authority to make the order, but it afterwards turned out that said order was void, is protected by said void order, and can not be held liable as for a misappropriation. 3. Under Code, sec. 2775, the right of action of a legatee against the executor begins to run from the time he was capable, under the will, of taking the legacy. Opinion by MCFAR LAND, J.-Courtney v. Dyer.

SUPREME COURT OF IOWA.
October, 1879.

PROPERTY OF WIFE-DEBTS OF HUSBAND. - 1. The increase of stock belonging to the wife is not subject to liability for the debts of the husband, though his services may have contributed to such increase. 2. The purchase of a plow is not a family expense for which the property of the wife will be jointly liable..

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Code, § 2214. Opinion by ROTHROCK, J.-Russel v. Long.

MAYOR ACTING AS JUSTICE OF THE PEACE-FEES FOR SERVICES.-1. Fees of officers are recoverable only as authorized by express statute. 2. A mayor of a city who performs the duties of a justice of the peace in criminal actions, prosecuted in the name of the State, is not entitled to the same compensation to be paid in the same manner as are justices of the peace whose compensation and mode of payment is fixed by tatute. Opinion by SEEVERS, J.-Upton v. County of Clinton.

TAXATION-ESTOPPEL- PAYMENT OF TAXES UNDER MISTAKE.-1. A county by bringing an action to set aside a conveyance alleged to have been obtained by fraud, is not thereby estopped from levying taxes on said land. 2. In a proceeding to quiet title one who has paid taxes on the land under a mistake of fact as to his ownership may recover them from the rightful owner. He who seeks equity must do equity. Opinion by SEEVERS, J.-American Emigrant Co. v. Iowa &c. R. Co.

NEGLIGENCE RISKS ASSUMED BY EMPLOYEE.The defendant erected a coal platform between two of its tracks, and for convenience in unloading and taking on coal placed it so near one of the tracks that a passenger car moving along the track passed within seven inches of the platform at one end, and within four and one-half inches at the other end. At the time of the accident the platform had been erected and in the same position for two or three years. The deceased was a baggage man on the defendant's pas.senger train, and it was his duty to assist in making up the trains. He had been in this employment for more than two years, and had assisted in making up the train nearly every day during that time. In making up the passenger trains the cars were moved along the track past the coal platform. The evidence showed that the deceased, in making up the train, was knocked off the car by the coal platform, and injured to an extent resulting in his death. The only negligence complained of on the part of the defendant was the erection of the coal platform so close to its track. Held, that the employee could not recover. Muldowney v. Illinois Cent. R. Co., 39 Iowa, 615; Kroy v. Chicago &c. R. Co., 32 Iowa, 359; Way v. Illinois Cent. R. Co., 40 Iowa, 341; Lumley v. Caswell, 47 Iowa, 159. The doctrine of these cases is that the negligence of the defendant in furnishing defective or improperly .constructed machinery and implements is waived by remaining in the employment without protest or promise of amendment. The waiver of the negligence of the defendant places the case in the same position as though the defendant had not been negligent, and without the negligence of the defendant there can be no recovery. This waiver can not be affected by the particular situation in which the employee may be placed, or the rapidity and promptness with which he may be required to act at the time of the accident. Those questions may very properly bear upon the question of the contributory negligence of the employee, but they can have no bearing upon the question whether the defendant has been guilty of negligence about which the employee has a legal right to complain. Opinion by DAY, J.-Perigo v. Chicago &c. R. Co. CONTRACT BY ATTORNEY TO TURN OVER ΤΟ ANOTHER ACCOUNTS IN HIS HANDS INVALID AGREEMENT NOT TO PRACTICE LAW VALID-STATUTE OF FRAUDS.-1.. A agreed to sell to B his law business, to turn over to him all accounts in his hands for collection, and not thereafter to engage in the practice of law in the town of Adel. Held, that no damages could be recovered for breach of the agree

ment to turn over the accounts. It is presumed that the defendant's clients selected him for the collection of these notes because they reposed confidence in his capacity and integrity, or for some reason desired him in preference to all persons else to perform this service. The defendant had no right to substitute another for the performance of duty which he had agreed to discharge himself, and he could not, without the consent of his clients, bind them to accept the plaintiff to perform this service. If the notes had been turned over to the plaintiff by defendant, his clients could immediately have demanded and compelled their surrender. The plaintiff must have known that in this part of the agreement the defendant undertook to do what he had no legal right to perform. For a breach of this part of the agreement damages are not recoverable." 2. A contract not to practice law in a particular town is valid. The defendant did not agree generally not to engage in the practice of law, but simply not to engage in the plactice of law at Adel. A contract in restraint of trade as to particular places is valid. Hedge v. Lowe, 47 Iowa, 137, and cases cited; Jenkins v. Temples, 39 Ga. 655: Chappel v. Brockway, 21 Wend. 157. In Holbrook v. Waters, 9 How. Pr. 335, it was held that an agreement upon sufficient consideration not to practice medicine, nor in any manner to do business as a physician, in the county of Oswego, at any time after the first day of May, 1851, was valid. In Bunn v. Guy, 4 East. 190, a contract entered into by a practicing attorney to relinquish his business and recommend his clients to two other attorneys for a valuable consideration, and that he would not himself practice in such business within one hundred and fifty miles of London, was held to be valid. See, also, Heichew v. Hamilton, 3 G. Greene, 596; s. c. 4 G. Greene, 317. 3. The provision of the statute of frauds, respecting contracts not to be performed in a year, applies only to contracts not to be performed on either side, and not to a contract performed on one side within the year. See, also, Donellan v. Read, 3 B. & Ad. 899; Riddle v. Backus, 38 Iowa, 81; Blair Town Lot Co, v. Walker, 39 Iowa, 406; Cherry v. Heming, 4 Ex. 631. Opinion by DAY, J. ley v. Greene.

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KENTUCKY COURT OF APPEALS.

September, 1879.

Smal

LIQUOR LAW-JUDGMENT AGAINST SURETIES.Sec. 1, art. 35, ch. 29, Gen. Stats., enacts as follows: "A tavern-keeper may be indicted for a breach of his obligation, and, upon conviction, the court shall render judgment against him for the sum of three hundred dollars, and may also embrace in the same judg ment such of the sureties as have been served with a copy of the summons at least ten days before the com mencement of the term. It is hereby made the duty of the clerk to issue a summons against each surety in the bond of the tavern-keeper on which the indictment is found." Held, that the sureties on the bond of a tavern-keeper may be adjudged to pay for the breach thereof before the conviction, by direct proceedings, of their principal. Affirmed. Opinion by HINES, J. Com. v. Stringer.

GUARANTY WHEN NOTICE OF ACCEPTANCE OF NOT NECESSARY.-B living in Louisville having shipped to F in New York a quantity of tobacco, and desiring to draw on F for the full value, it was agreed between F's agent in Louisville and B that in consideration that F would pay said draft G would make good to

for the best part of his life. There is something at once sombre and humorous in the stories which the death of this ghastly personage has unearthed; of his gentle manners to the unfortunate culprits with whom he came in contact; of his benevolent countenance, which sometimes caused him, while traveling by rail to an execution in another town, to be mistaken by the passengers for a philanthropist upon a mission of mercy; of the collections of rope's ends which he preserved as mementos of the different persons whom he had dispatched; of his dislike to publicity in later years and his taste for whist; of his wrath at a publisher who offered him a large price for a book of memoirs, and his indignant reply that he respected the confidence of his " "" patients as much as the greatest physician in the land. The life of such a disagreeable personage can scarcely adorn a tale, but it may nevertheless point a moral, in this country at least. If capital punishment is necessary, which in some cases it assuredly is, can a public hangman be said to be unnecessary? That Calcraft never tortured those upon whom he operated is sure; had he done so he would certainly have been dismissed from the service as an incompetent workman years ago. There is need for such an artist in every one of the States-one who will spare us the terrible recitals of the attempts to carry out the sentence of the law which the blunderings of our own officials make possible almost every week in the year.

In a previous number (9 Cent. L. J. 441), we noticed the case of Boone County v. Jones, recently decided by the Supreme Court of Iowa, where it was held that the sureties on an official bond are estopped by the settlement of their principal from showing that a default really occurred before the date of their bond, when by his settlement the contrary appeared to be the case. We can not but think that the propriety of this ruling is more than questionable. The doctrine thus announced by the Supreme Court of Iowa has its origin in Baker v. Preston, 1 Virginia (Gilmer) 235, decided in 1821, by a special court organized to try a single case. In that case it was held that the sureties of a State treasurer were estopped from showing that the entries in the books of the treasurer were untrue, and that the alleged default really occurred before their bond was given. The opinion of the majority of the court cited no authority to sustain this position save that of Moody v. Thruston, 1 Strange, 481, which had no application, as in that case the parties had had a day in court, and the sureties were estopped by a quasi judgment, and not by the accounts. Judge White delivered a very conclusive dissenting opinion. Baker v. Preston, has been overruled in Virginia, or at least So far discredited as to be no longer regarded as authority. See Munford v. Overseers, 2 Rand. 314; Craddock v. Turner, 6 Leigh, 124; Crawford v. Turk. 24 Gratt. 176; State v. Rhoades, 6 Nev. 363; Nolley v. Callaway Co. 11 Mo. 457, and State v. Norton, 33 Ark., where Baker v. Preston is referred to and expressly overruled. It was followed, however, in State v. Grammer, 29 Ind. 530 but apparantly without any examination, either of principle or authority. The authorities the other way are numerous and convincing. See, besides the cases above cited, United States v. Boyd, 5 How. 50; United States v. Girault, 11 Id. 30; Hatch v. Attleborough, 97 Mass. 537; State v. Smith, 26 Mo. 231; Freeholders v. Wilson, 1 Harr. (N. J.) 117; State v. Fullenwider, 4 Ired (Law), 364; Governor v. Sutton, 4Dev. & Bat. (Law),484, Treasurers v. Bates, 2 Bailey, 381. These cases proceed on the theory that the principal should not have it in his power to ruin his sureties by fabricated accounts. Besides, the accounts

may involve errors unintentionally made. The reasoning of the Supreme Court of Iowa does not seem to be very conclusive. The court say: "By shifting the defalcation back to a former term the statute of limitation would in most cases preclude all hope of recov ery." This would seem to indicate that it is better that a debt should be paid by the wrong person rather than that it should not be paid at all. Besides, if the settlement were fraudulent, it would probably be held that the statute would not begin to run until the discovery of the fraud.

NOTES OF CASES.

A contract of this kind was declared by the Supreme Court of New York in the late case of Hagar v. Catlin, contrary to public policy. The plaintiff brought suit alleging that the defendant who had been elected sheriff of Schuyler County, entered into a contract with him in Febuary, 1878, by the terms of which the plaintiff agreed to sell or rent his farm and dispose of his stock and be in readiness by April 1st, 1878, to take charge of the jail of the county, board the defendant and also the prisoners; that defendant agreed that thereupon he would appoint plaintiff jailor and deputy sheriff, and that he should have a certain share of papers and process to be served, he to be allowed to receive the fees thereon; that plaintiff disposed of his farm and stock at a great sacrifice, and that on April 1st, 1878, he was ready to perform his part of the agreement; that defendant wholly refused to perform said agreement, and that thereby plaintiff sustained large damages. The defendant demurred on the ground that the complaint did not state a cause of action, and the demurrer way sustained. "The ques tion is said the court "whether if a public officer having a power to appoint to office, promises to appoint a certain person, and that person promises to accept, is that contract legally binding on the officer. We think not. It is his duty to make the best appointment in his power, according to his judgment at the time when he makes the appointment. It is against public policy that he should be deprived of the exercise of his best judgment by a contract previously made. This is not a question as to the lawfulness of an arrangement between a sheriff and his deputies as to their fees. The right of appointment is a political power to be exercised, not to be sold."

In Mellen v. Goldsmith, recently decided by the Supreme Court of Wisconsin, a creditor agreed verbally with his debtor and other creditors to join with the latter in executing a composition deed at a certain rate, and afterwards, when the said deed had been executed by the other creditors, refused to sign it. It was held that he could recover of the debtor that proportion only of the debt fixed in the agreement. "The validity of such an agreement," said ORTON, J. "does not depend upon the technical and strict rules which govern accord and satisfaction, release and discharge, but upon principles of equity, which treat the violation of or failure to execute such an agreement as a fraud, not only upon the debtor but more especially upon the other creditors, who have been lured in by the agreement to relinquish their further demands, upon the supposition that the debtor would thereby be discharged of the remainder of his debts." In Anstey v. Marden, 1 Bos. & Pull. 124, the plaintiff at one time orally agreed with the other creditors to accept a composition of ten shillings on the pound, and to assign his claim to Weston, who was to advance the money; but when the agreement was drawn