tion of the depositor, not communicated to the bank, is of no importance. While the right of the bank to charge the notes against the deposit is not disputed, it was at the same time contended that it was under no duty to do so, and that its failure to make such application did not discharge the indorser.

It is to be observed that the bank was the owner of the notes, and not a mere collecting agent. The difference is obvious. The position of the bank was this: It was a creditor of Mr. Young to the amount of the notes discounted; it was the debtor of Mr. Young to the amount of his deposit, and to that extent was in law bound to honor his checks or drafts; it held the defendant as security on the notes by reason of his indorsement thereof; the deposit exceeded the notes, and it had the undoubted right at the close of banking hours on the 28th of August to charge the notes against the deposit. Was it bound to do so as between the bank and the indorser?

In order to discuss this question intelligently we must not lose sight of the peculiar character of a bank deposit. The money deposited does not, as is popularly assumed, continue to be the property of the de positor. It becomes the money of the bank the moment it is deposited. The depositor becomes the creditor of the bank, and as before observed, the bank is his debtor, and is in law bound to honor his drafts to the extent of his deposit. Foley v. Hill, J Phillips, 399; Bank of Republic v. Millard, 10 Wall. 152; Carr v. National Security Bank, 107 Mass. 45. When the depositor becomes indebted to the bank on one or more accounts, and such debts are due and payable, the bank has the right to apply any deposit he may have to their payment. This is by virtue of the right of set-off. Where a general deposit is made by one already indebted to the bank, the latter may appropriate such deposit to the payment of such indebtedness. This results from the general doctrine of the application or appropriation of payments. And it may be safely asserted that as a general rule, the former may waive the right to make such application, and allow the depositor to draw out his balance. Where however the rights of third parties intervene the case is sometimes different. The distinction between the liability of a bank to a customer and to a third party is thus defined in Morse on Banks and Banking (2d ed.) 47: "A bank holding a note of a depositor is under no obligation to appropriate a sum sufficient to meet it from funds on deposit immediately upon its maturity, or indeed at any other particular time; they may let the account run on and take the chance that they will not lose in the end. But as toward third parties, the obligation upon the bank is different, and it has been decisively and properly held that the neglect of the bank to make such an appropriation of the principal debtor's funds would discharge the indorsers and sureties."

The rule is well settled that "when a creditor has in his hands the means of paying his debt out of the property of his principal debtor, and does not use it, but gives it up, the surety is discharged. It need not be actually in the hands of the creditor. If it be within his control, so that by the exercise of reasonable diligence he may have realized his pay out of it, yet voluntarily and by supine negligence relinquished it, the surety is discharged." Fegley v. McDonald, 8 Nor. 128; citing Com. v. Vanderslice, 8 S. & R. 452; Everly v. Rice, 8 Harris, 297; Boschert v. Brown, 22 P. F. S. 372, and other cases.

This familiar rule applies to banks as well as other creditors. It was held in Kuhns v. The Westmoreland Bank, 2 Watts, 136, where it was ruled: "The lien which a bank has, by virtue of the seventh section of the act of 21st of March, 1814, upon the stock of its debtor, results for the benefit of the surety of such debtor; and such is that resulting interest that the

surety cannot be deprived of it. Hence if the bank permit the stock of such debtor to be sold, aud its proceeds applied to discharge a debt due to the bank by the same debtor, which originated by a note of subsequent date, the surety in the first transaction will be thereby discharged."

Ramsay v. Westmoreland Bank, 2 P. & W. 163, was a suit against a surety. The facts and the law of the case are sufficiently explained in the following extract from the opinion of the court: "The note on which the suit was instituted had been drawn by William Johnson and indorsed by John Ramsey; he was then a mere surety, and as such entitled to be favored in the law. The evidence he offered was to prove, and would have proved, that a large balance arising on the sale of real estate of William Johnson was in the hands of the sheriff, which was subject and liable to the judgment of the bank, and would have been obtained if due diligence had been used. The case then, if proved as offered by the plaintiff in error to the court below, would have come within the principle stated by the present chief justice in Com. v. Miller's Administrators, 8 S. & R. 457, that no rule in equity was clearer than that where a creditor has the means of satisfaction in his hands, and chooses not to retain them, but suffers them to pass into the hands of the principal, the surety can never be called upon.' Here, to be sure, the bank had not the balance actually in their hands, nor did they actually assent to its passing into the hands of Johnson, but they might by using due diligence, and by doing their duty to the surety, have obtained it, and thus have had satisfaction pro tanto on their judgment from the proceeds of the real estate of the real debtor, and it was their duty to have done this. The money thus obtained from the sale of real estate of Johuson, on which the bank's judgment was a lien, was actually brought into court. Johnson could not take it out of court, but the bank could have done so, and if they did not, they must lose it, for having had the means of payment in their power they could not pass them by and recover from a surety."

Ramsey v. The Westmoreland Bank was approved in the subsequent case of Sitgreaves v. The Bank, 13 Wright, 359, and the same principle has been recognized and followed in numerous later cases, including Fegley v. McDonald, supra. Is it applicable to the case in hand? Of this we are in no doubt. The bank being indebted to Young when his notes matured in an amount exceeding the notes, the latter had the clear right to set off so much of his deposit as was necessary to meet the notes. The defendant as surety was entitled to avail himself of Young's right. It may be illustrated thus: If I am the holder of A.'s note indorsed by C., and when the note matures I am indebted to A. in an amount equal to or exceeding the note, can I have the note protested and hold C. as indorser? It is true A.'s note is not technically paid, but the right to set-off exists, and surely C. may show in relief of his obligation as surety that I am really the debtor instead of the creditor of A. If this is so between individuals, why is it not so between a bank and individuals?

Further the note in controversy was payable at the bank. An acceptance or promissory note thus payable is, if the party is in funds, that is, has the amount to his credit, equivalent to a check; and it is in effect an order or draft on the banker in favor of the holder for the amount of the note or acceptance. Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 88. I do not understand this principle to be disputed. The note therefore was a draft on the bank against the deposit of the maker. It was the equivalent to a peremptory order on the bank to pay, or to speak more accurately, to charge the notes against the deposit. And the jury have found that there was no direction on the part of

the depositor to interfere with this. It must be conceded that if the deposit had been special, or if previous to the maturity of the note, any arrangement had been made between the depositor and the bank by which the bank had been forbidden to apply the money in its hands to the payment of these notes, the indorser would not be discharged. As was held in Bank v. Speight, 47 N. Y. 668: "If before the maturity of paper held by a bank against a depositor, au arrangement is made by which the bank agrees to hold the deposit for a specific purpose, and not to charge the note against it, the bank may be regarded as a trustee, and the deposit special. In such a case, in the absence of fraud or collusion, an indorser upon such paper has no right to require the application of the deposit toward the payment of the paper upon its maturity."

At

Bank of Wilkesbarre v. Legrand, 13 Week. Notes, 317, is not in conflict with this view. The precise question we are considering was not decided in that case. There Lowenstein had not sufficient funds in the bank to pay the note at the time it matured. Subsequently he made a special arrangement by which he was to continue to do business with the bank, and it was alleged the time of payment had been extended. several times after this he had sufficient money on deposit to pay the note. The court below subsequently entered judgment against the bank upon the ground principally that the indorser was discharged by the extension of the time,'which judgment was subsequently reversed by this court. It needs but a cursory examination of that case to see that it does not rule this. Nor do the other cases cited by the plaintiff sustain his contention. In Bank of United States v. Carneal, 2 Pet. 543, the question was whether the indorser was discharged by a failure to make demand upon the maker. The note was payable at the bank, the demand was made there, and it was said by Justice Story: "Where a note is payable at a bank it is his (the maker's) duty to be at the bank within the usual hours of business to pay the same."

Strong v. Foster, 84 Eng. Com. Law, 201, was not the case of an indorser, but of one of the makers of a joint and several promissory note who claimed to be a surety. It was at least doubtful whether he was a surety; his position on the note did not make him so, and there were no funds to the credit of either of the makers when the note matured. On the contrary, the balance was against them. The court held, under the circumstances of the case, that the failure of the bank to apply a subsequent deposit to the payment of the note did not discharge the defendant, and intimated the opinion it would not have discharged him even had he been a surety.

In the National Mahaiwe Bank v. Peck, 127 Mass. 302, it was ruled that: Where by express agreement, or by a course of dealing between a bank and one of its depositors, a certain note of the depositor is not included in the general account between them, any balance due from him to the bank when the note becomes payable is not to be applied in satisfaction of the note, even for a benefit of a surety thereon, except at the election of the bank." The bank had discounted for B. a note signed by him as treasurer of a town and indorsed by P., the proceeds of which were to be used by B. in his official capacity. Neither the note nor its proceeds were made part of B.'s personal account with the bank. At the time that note matured the bank held the personal note of B., which would mature the next day, and which exceeded the amount then standing to the credit of B.'s personal account. As soon as the personal note matured, the president of the bank directed the cashier to apply the balance of B.'s account to the personal note. Three days after, P. pre

sented a check to the bank, signed by B., in which he directed the balance of his account to be paid on account of his official note. The cashier refused so to apply it because of the direction he had received. Held, in an action by the bank against P.on the official note, that neither he nor B. could insist that the amount standing to B.'s credit at the maturity of the note should be applied to the payment of the note in suit. It will be noticed that the official note did not enter into B.'s personal account, and that before B.'s check had been presented at the bank the latter had applied his personal deposit in part payment of his personal note which had matured. Its right to do so is apparent.

As the principles above indicated control this case, a discussion of the remaining assignments is not necessary. To avoid misapprehension, it is proper to say however that the offers of testimony embraced in the first three assignments of error were irrelevant, and should have been excluded. The bank was a holder for value, and the facts set forth in the said offers did not constitute a defense. But the admission of the evidence under these offers did no harm, and it is settled law that for immaterial errors this court will not reverse. Nor is it essential to criticise the admission of the testimony in relation to the custom of the Reading banks to charge a note made payable at the bank against a deposit standing to the credit of the maker. Such a mode of dealing could hardly have the force of a custom considered in its legal sense. But as a course of commercial dealing it was perhaps competent, and at most it merely showed that the banks did what they had a conceded right to do aside from any such custom or usage.

Judgment affirmed.

COLORADO SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-GENERAL AND SPECIAL LAW -ASSESSMENT UNDER INVALID LAW.-(1) Where a special city charter cannot be amended by a general law applicable to the whole State, so as to meet the necessities of a particular case, then a special law is authorized by the Constitution itself, and the decision of the question as to whether or not a special law is necessary is for the Legislature, and not for the courts. In the case of State v. Co. Ct. of Boone County, 50 Mo. 317, the court says: "But who is to decide when a general or special law will answer the best purpose? It strikes me that the rule in reference to general or special laws is laid down as a guide for the Legislature, and the Legislature is to judge of the necessity of the particular case. The Legislature is quite as able to do this as the courts. The Legislature must in the first instance exercise their discretion as to the necessity of a special instead of a general act. How can the courts control that discretion? If a discretion be conceded at all, in my judgment the courts have no right to control it. It is agreed that there is no discretion in regard to the passage of certain enumerated laws. They are inhibited by the letter of the Constitution. When the Legislature undertakes to pass these inhibited laws it is the plain duty of the courts to declare them unconstitutional." The above views appear to us to be both sound and applicable to the phraseology of our Constitution. They are affirmed by the subsequent cases of State v. Co. Ct. of New Madrid, 51 Mo. 83, and Hall v. Bray, id. 288. Similar views upon like constitutional provisions are announced in State v. Hitchcock, 1 Kan. 178, and Gentile v. State, 29 Ind. 409. (2) A valid assessment cannot be made under an invalid law or ordinance, and its constitutionality is to be tested not by what has been done under it, but

by what it authorizes to be done by virtue of its provisions. This is the doctrine of the following cases, and many others might be cited to the same effect, but reference to them will be found in the cases cited: Stuart v. Palmer, 74 N. Y. 183; Thomas v. Gain, 35 Mich. 155; Davidson v. New Orleans, 96 U. S. 97; County of San Mateo v. Southern Pac. R. Co., 8 Sawy. 238; 13 Fed. Rep. 722. Brown v. City of Denver. Opinion by Beck, J. [Decided April 1, 1884.]

MICHIGAN SUPREME COURT ABSTRACT.

LANDLORD AND TENANT-MINING LEASE-TRADE FIXTURES-RIGHT OF REMOVAL.-As between landlord and tenant of a mining lease, engines and boilers erected by the tenant on brick and stone foundations, and bolted down solidly to the ground, and walled in with brick arches; and dwellings erected by the tenant for miners to live in, standing on posts or dry stone walls piled together-where such machinery and buildings were intended to be merely accessory to the mining operations under the lease, and when there was no intention in affixing them to the realty to make them accessory to the soil, and where they can be removed without material disturbance to the land, are regarded as "trade fixtures," and may be removed at or before the termination of the lease. Conrad v. Saginaw Mining Co. Opinion by Champlin, J. [Decided June 25, 1884.]

EJECTMENT-ADVERSE POSSESSION-ESTOPPEL-FORMER SUIT.-(1) A title to land may be gained by its adverse possession for over twenty years by a party claiming under color of title. (2) Where an ejectment suit to try the title to land was determined in favor of a plaintiff, and after its decision the defendant conveyed the property and his grantee afterward obtained the possession of the land, in an action for ejectment against the latter's grantee, held, that he was estopped from denying the plaintiff's title because of the former suit by his grantor. Scheetz v. Fitzwater, 5 Penn. St. 126; Melvin v. Proprietors, etc., 5 Metc. 15; Sawyer v. Kendall, 10 Cush. 241; Williams v. Dongan, 20 Mo. 186; St. Louis v. Gorman, 29 id. 593; Shaw v. Nicholay, 30 id. 99; Holton v. Whitney, 30 Vt. 405; McNeely v. Langan, 22 Ohio St. 32; Nelson v. Trigg, 4 Lea, 705. Whitford v. Crooks. Opinion by Cooley, C. J.

[Decided June 25, 1804.]

WILL EXECUTORS—JOINT POWER-RENUNCIATION -EXECUTION BY ONE.-When an executor acts under instructions in a will, rather than under the general powers accorded by statute, and it appears that the testator had confidence in him, and intrusted much to his discretion, nothing but imperative duty can excuse a court for interfering with his acts. Where two persons are named in a will as executors, "with full power and authority to sell and convey real estate," and one of such persons renounces the trust, the other may, under the provisions of section 5844 of Howell's Statutes, execute the power, and a contract executed by him alone to sell and convey such real estate is valid. Dyer, 23; 11 Vin. Abr. 271; Bac. Abr. D. 1; 2 Williams Ex'rs, 810; Jacomb v. Harwood, 2 Ves. 267; Wheeler v. Wheeler, 9 Cow. 34; Bogert v. Hertell, 4 Hill, 492, 503; Weir v. Mosher, 19 Wis. 311; Herald v. Harper, 8 Blackf. 170; Dominick v. Michael, 4 Sandf. 374; Boughton v. Flint, 13 Hun, 206. Co-executors and co-administrators are regarded in law as but one person, and acts done by one are deemed the acts of all in all matters relating to the personal estate. One may execute a valid release of a debt. Murray v. Blatch

ford, 1 Wend. 583. He may discharge a mortgage (People v. Keyser, 28 N. Y. 226), may make an assignment of a mortgage (Crouin v. Hazeltine, 3 Allen, 324), and this court has held that a deed made by one of two or more administrators was not void, and not subject to attack in collateral proceedings. Osman v. Traphagen, 23 Mich. 80. The following authorities may also be examined with profit in examining the question raised in this case: Bonifaut v. Greenfield, 1 Cro. 80; Dike v. Ricks, 4 Cro. C. 335; 1 Sugd. Pow. (6th Lond. ed.) 143, 144; Pitt v. Pelham, Ch. Cas. 178; Wardwell v. McDowell, 31 Ill. 364; Clinefelter v. Ayres, 16 id. 329; S. C., 20 id. 465; Conklin v. Edgerton, 21 Wend. 430; Roseboom v. Mosher, 2 Denio. 61; Wills v. Cowper, 2 Ham. 124; Powell Devises, 196, 197; Judson v. Gibbons, 5 Wend. 224. Vernor v. Coville. Opinion by Sherwood, J. [Decided June 25, 1884.]

EJECTMENT-OUSTER-QUESTION OF FACT-BURDEN OF PROOF.-Ouster is a question of fact, which it is the province of the jury to determine, and the facts and circumstances which went to establish the ouster ought, under proper instructions from the court, to be submitted to the jury. Taylor v. Hill, 10 Leigh (Va.), 457; Cummings v. Wyman, 10 Mass. 465; Purcell v. Wilson, 4 Gratt. 16; Harmon v. James, 7 Smedes & M. 111; Blackmore v. Gregg, 2 Watts & S. 182; Carpentier v. Mendenhall, 28 Cal. 484; Clark v. Crego, 47 Barb. 599. And the burden of proof rests upon the party alleging it. Newell v. Woodruff, 30 Conn. 492; Van Bibber v. Ferdinand, 17 Md. 436. But when both parties rely upon ouster, it is incumbent on the plaintiff to prove it within the statute of limitations. If he introduce evidence tending to prove it within that period, then the burden is shifted to the defendant to prove an actual ouster which occurred anterior to that period. Highston v. Burdette. Opinion by Champlin, J.

[Decided June 25, 1884.]

NEGLIGENCE-CONTRIBUTORY-PERSONAL INJURY. -Where a person in crossing a railroad track was struck and injured by a passing engine which she was facing, and which she must have seen if not acting heedlessly, held, that she was guilty of contributory negligence. In an action against a railroad company for a personal injury it is incumbent upon the plaintiff to show not only that the defendant was negligent, but that she was in the exercise of ordinary care at the time of the accident; and if this is not shown it is immaterial that she was rightfully upon the defendant's grounds at the time. Pzolla v. Michigan Cent. R. Co. Opinion by Champlin, J. [Decided June 25, 1884.]

NEBRASKA SUPREME COURT ABSTRACT.

CORPORATION CAPITAL STOCK ASSESSMENTS.— Where articles of incorporation fix the amount of the capital stock the entire amount must be subscribed before a stockholder is liable to assessment for the accomplishment of the main object of the corporation, unless the articles otherwise provide or there is a waiver of the condition. Salem Mill-dam Co. v. Ropes, 6 Pick. 23; S. C., 9 id. 195; Cabot, etc., Br. Co. v. Chapin, 6 Cush. 53; Shurtz v. S. & T. R. Co., 9 Mich. 259; Topeka Bridge Co. v. Cummings, 3 Kau. 76; Sommerset R. Co. v. Clarke, 61 Me. 384; N. H. C. R. v. Johnson, 30 N. H. 404; P. & R. I. R. v. Preston, 35 Iowa, 118; Fox v. Clifton, 6 Bing. 776: Pitchford v. Davis 5 Mees. & W. 2; Fry's Ex'r v. L. & B. S. R., 2 Metc. (Ky.) 323; Estabrook v. Hotel Co., 5 Neb. 76; Boehme

V. Hotel Co., id. 80. See also Livesey v. Omaha Hotel Co., 5 Neb. 50. Hale v. Sanborn. Opinion by Maxwell, J.

[Decided May 29, 1884.]

MORTGAGE-CONDITION TO SAVE HARMLESS—SURETY —DAMAGE.-When the condition of a mortgage is to save the mortgagee harmless from the payment of a debt owing by the mortgagor, for which the mortgagee was surety, held, that no action could be maintained on the mortgage until the mortgagee has paid the debt or some portion thereof; that is, until actual damages had been sustained by him. This question was before the court in Gregory v. Hartley, 6 Neb. 356, and it was held that where a condition or promise is only to indemnify and save harmless a party from some consequence, no action can be maintained until actual damages have been sustained by the plaintiff. Stout v. Folger, 34 Iowa, 74; Lathrop v. Atwood, 21 Conn. 117; In re Negus, 7 Wend. 499; Thomas v. Allen, 1 Hill, 145; Churchill v. Hunt, 3 Denio, 321; Wilson v. Stilwell, 9 Ohio St. 467. The plaintiff was merely surety on the note. The debt was not his own, but that of McCoy. This principle is clearly recognized In re Negus, supra, and Douglass v. Clark, 14 Johns. 177. In the case last cited the condition of the bond was that **if the said Sylvester Clark, above bounden, shall well and truly pay off and discharge said bond, and save the said Zebulon harmless, and indemnified from the payment thereof, or any part thereof, and from all costs, damages and charges thence arising to said Zebulon, then the above-written obligation to be null and void," etc. The court say: "Whether this plea be good or not will depend upon what is deemed the true construction of the bond. If the defendant is to be considered as undertaking to pay off and discharge the recited bond, the plea is bad; but if it be considered a bond of indemnity to save the plaintiff harmless from all damages by reason of the recited bond, the plea is good. 1 Saund. 117, n. We are inclined to think the good sense and sound interpretation of the bond is according to the latter construction. * * * This construction is much strengthened by the circumstance that it appears in the recited bond that the defendant was not the person who was to pay the duties. They were due from Rice, with whom the defendant was bound." In Thomas v. Allen, 1 Hill, 145, it is said the bond in suit was more than a boud of indemnity, because it bound the defendant to pay off the plaintiff's debt, and the breach was well assigned by alleging that the obligor had not paid at the day. In that case it is said that Douglass v. Clark was silently overruled in Port v. Jackson, 17 Johns. 239. Forbes v. McCoy. Opinion by Maxwell, J. [Decided May 29, 1884.]

KANSAS SUPREME COURT ABSTRACT.* JANUARY TERM, 1884.

CARRIER-BAGGAGE― LOSs.- Where the duly authorized agent of a railroad company receives personal property to be transported as baggage, the railroad company must account for such property as baggage, although in strict language it might not be baggage. Where personal property is received by a railroad company to be transported as baggage, and while it is in the possession of the railroad company, to be so trausported, it is lost or stolen, held, that the railroad company is responsible to the owner thereof for its loss. Chicago, etc., Railroad Co. v. Conklin. Opinion by Valentine, J.

OFFICE AND OFFICER-FORFEITURE- CUMULATIVE REMEDY-FAILURE TO PERFORM DUTY-PUBLIC SENTI*Appearing in 32 Kansas Reports.

MENT.—(1) If a county attorney neglects or refuses to perform any act which it is his duty to perform, or corruptly performs any such duty, he forfeits his office, and may be removed therefrom by a civil action, in the nature of a proceeding in quo warranto, in the Supreme Court. (2) A civil action instituted in the manner provided in the Code of Civil Procedure for the removal of a county attorney who neglects or refuses to perform any act which it is his duty to perform, or who corruptly performs any such duty, reaches only to the possession of his office and its emoluments. The criminal prosecution provided for in section 12 of the Prohibitory Act is an additional or cumulative remedy, and in addition to the forfeiture of office, subjects the guilty official, on conviction thereof in the District Court, to the infliction of a fine not exceeding $500. (3) Where a county attorney is charged with neglecting or refusing to perform an act which it is his duty to perform under the prohibitory law, or is charged with corruptly performing any such duty, in a civil action to remove him from office, it is not a good defense to answer that the people of his county are opposed to the prosecution of the violators of the law, and therefore in the exercise of his official discretion, he dismissed all cases of this class brought by him. (4) If a law enacted by the Legislature has not the support of public sentiment, this may be,under some circumstances, a reason for its amendment or repeal; but in a civil action brought against a county attorney to remove him from office for neglecting to perform his duties thereunder, it is not a good defense for his refusing to attempt its enforcement. State v. Foster. Opinion by Horton, C. J.

EVIDENCE-PAROL TO SHOW AGENCY.-After a written agreement is executed, it is competent to show by parol evidence that both of the contracting parties were agents for other persons, and acted as such agents in making the contract. This evidence in no way contradicts the written contract. Butler v. Kaulback, 8 Kans. 668; Wolfley v. Rising, 12 id. 535-538; Railway Co. v. Thatcher, 13 id. 564; Dykers v. Townsend, 24 N. Y. 61. Nutt v. Humphrey. Opinion by Horton, C. J.

CONSTITUTIONAL LAW-PUBLIC OFFICE-CHANGING SALARY-PROSPECTIVE STATUTE.—(1) A county office is not a contract, and the incumbent is not protected in it by the prohibition of the Federal Constitution against the impairment of the obligation of contracts. A county officer has no such vested interest in the salary as will prevent the Legislature from diminishing it during his term of office. Public offices in this State are mere agencies for the benefit of the peoplenot contracts on their part with the officeholder for his benefit. Therefore there is no contract, express or implied, between a public officer and the State or county whose agent he is. Officeholders have no agreement or contract that they shall receive any particular compensation for the term they hold office. Their terms are fixed with the view to public utility and convenience, and not for the purpose of granting the emoluments or salary during any fixed period to the officeholder. The Legislature may exercise its control by increasing or diminishing the salary or emoluments of an office, except in those special cases in which the Constitution has forbidden its exercise. State Const., art. 3, § 13. Except in those special cases, the Legislature has the absolute power over the compensation of all public officers. Therefore there was no contract, express or implied, between the plaintiffs and Rush county or the State of Kansas regarding the compensation of their officers, and the plaintiffs had no property in the future compensation attached to them. Conner v. Mayor of the City of New York, 5 N. Y. 285; Farwell v. City of Rockland, 62 Me. 296; State v.

:=

Davis, 44 Mo. 129; Hyde v. State, 52 Miss. 665. (2) Where a law is enacted diminishing the salary of a county officer during his official term, and such diminution applies after the law takes effect, the law is prospective, and not retroactive. Harvey v. Comrs. of Rush County. Opinion by Horton, C. J.

RAILROAD-KILLING STOCK-FAILURE TO FENCE.Where a person pastures a bull over one year old on his own inclosed premises, through which a railroad is constructed and operated, and the railroad company has not inclosed its road with a fence, as required by the provisions of the railroad stock law of 1874 (Comp. Laws of 1879, ch. 84, art. 2, pp. 784, 785), and the bull is killed by the railroad company in the operation of its road, held, that the bull was not so running at large, within the meaning of section 38, article 5, of the act relating to stock (Comp. Laws of 1879, ch. 105), as to prevent the owner from recovering for its value under the provisions of said railroad stock law of 1874. And so held, although the railroad company may own the strip of land upon which its track is located, and where the animal was killed. This case in principle comes entirely within the principles announced in the case of the A. T. & S. F. R. Co. v. Riggs, 31 Kans. 622, except that in this case the railroad company alleged that it "owned" a strip of land upon which its track was located and where the bull was killed; while in the Riggs case the decision of the court was upon the theory that the railway company simply had an easement over the plaintiff's land where its track was located and where the animal in that case was killed. We do not think however that this difference between the two cases will require a difference between the two decisions. The bull in the present case rightfully pasturing upon its owner's premises, and it strayed from there upon the defendant's premises simply because of the neglect and wrong on the part of the defendant in not inclosing its road with a lawful fence. In addition to the cases above cited, see the following cases: Cressey v. Northern Railroad, 59 N. H. 564, and cases there cited; S. C., 29 Alb. L. J. 392; Pittsburgh, etc., R. Co. v. Smith, 38 Ohio St. 410; S. C., 13 Am. & Eng. Rld. Cases, 579; B. & M. R. Co. v. Brinkman, 14 Neb. 70. Gooding v. Atcheson, etc., R. Co. Opinion by Valentine, J.

was

CONTRACT— SPECIFIC PERFORMANCE --STATUTE OF FRAUDS-UNCERTAINTY IN TERMS-AGENT SELLING TO

SELF. The plaintiff, James B. Fry, alleged in his petition in substance that the defendant, Alexander Platt, owned section 1, township 25, range 14, in Woodson county, Kansas, and that the defendant, through his duly authorized agent, Thomas M. Eads, sold the same to the plaintiff for the sum of $3,200, payable as follows: $50 cash down; $1,366.66% on the execution and delivery to the plaintiff of a good and sufficient warranty deed for the land; and the remainder in two equal payments as follows: $1,066.66% payable in one year from the date of the delivery of the deed, and $1,066.66% payable in two years from the delivery of the deed; the deferred payments to be secured by notes and mortgage on the real estate, to bear interest at the rate of 7 per cent per annum from date. The plaintiff further alleged in his petition that he paid the first payment of $50. On the trial it was shown that Thomas M. Eads was the agent of the defendant for the sale of said land; that the plaintiff paid Eads the $50; and that Eads executed and delivered to the plaintiff the following receipt, to-wit: "Yates Center, Kans., June 13, 1883. Received of J. B. Fry $50, for part payment of purchase-money for section 1, township 25, range 14, Wooason county, Kans. T. M. Eads, agent for Alexander Platt." Held, that such receipt is not such a contract in writing within the statute of frauds as will authorize the specific enforcement of a

contract on the part of the defendant to sell and convey to the plaintiff the above described land, the receipt being indefinite and uncertain as to the consideration, and indefinite and uncertain in other particulars. Holmes v. Evans, 48 Miss. 247; S. C., 12 Am. Rep. 372; Minturn v. Baylis, 33 Cal. 129; McGuire v. Stevens, 2 Am. Rep. 649. Indeed such indefiniteness and uncertainty in the contract, where the statute of frauds requires that the contract should be in writing, would probably defeat any action upon the contract. Atwood v. Cobb, 26 Am. Dec. 657, 661 et seq., and especially 668, 669; Reid v. Kenworthy, 25 Kans. 701; Patmor v. Haggard, 78 IN. 607; Riley v. Farnsworth, 116 Mass. 223; Jordan v. Deaton, 23 Ark. 704; Grafton v. Cummings, 99 U. S. 100. Neither can the present action be maintained, for the reason that the transaction would seem to be simply that of an agent selling his principal's property to his partner, and virtually to himself, without the knowledge or consent of his principal. 1 Pars. Cont. 87; 1 Wait Act. and Def. 245, 246 et seq., and cases there cited; Bain v. Brown, 56 N. Y. 285. Also with respect to certain essential elements and incidents inherent in or connected with the action of specific performance, see 3 Pomeroy's Eq. Juris., § 1405, and cases there cited. Fry v. Platt. Opinion by Valentine, J.

MINNESOTA SUPREME COURT ABSTRACT

DAMAGES-MALPRACTICE-LOSS OF SERVICE -MENTAL ANXIETY.-In an action by a husband for damages resulting to himself from injuries to his wife caused by the malpractice of a physician, damages for loss of service which appears necessarily to result from the nature of the injury may be recovered as part of the general damages, without being specially pleaded. Damages for the mental anxiety or the injured feelings of a husband, father or master, if recoverable at all in such cases, are to be allowed by the jury as matter of aggravation, upon consideration of the facts and circumstances of the case, and not upon the statements of witnesses as to the amount of such damages. Stone v. Evans. Opinion by Vanderburgh, J.

GENCE QUESTION FOR JURY.-Along and near a planing-mill, and within twenty feet of it, defendant laid a spur track for the purpose of loading and unloading lumber, etc., at the mill. A shed extended from the mill proper to within four feet of the track. There were several planers in the mill. The lumber was fed into the mill on the side way from the track, and passed through the planers at right angles and toward the track, and within a few feet of it. At each planer was employed a man who received the board as it came from it, carried it across the track to be piled up near the track convenient for shipment, and then returned for another board, the whole distance thus traversed being very short, and his employment requiring his crossing and recrossing the track constantly. The land on which the lumber was piled belonged to the defendant. The defendant knew of this mode of conducting the business, and this use of the land and track by the mill-owner was, with its consent and permission, express or implied. The planers made so much noise as to prevent a person from hearing an approaching car. This spur track was not used for the general and regular business of the road, but only to set in such cars as were needed to be loaded or unloaded at the mill or factory, and these were not set in at regular times, but only as occasion required, at irregular intervals. On the occasion of the accident