which produces as its direct effect, a disease from which death ensues. The law fixes no exact standard here, and it should be left to the jury as to the reasonableness of his conduct, and whether or not the death was caused by the injury: Id.

Railroads-Passengers waiting at Station.-Contributory Negligence -Jumping from a Moving Train.-A person waiting at a railroad station for passage upon a train soon to depart, who is invited by the ticket agent to sit in an empty car standing on the side track while the station room was being cleaned, is entitled to the same protection from the company while in the car as if in the regular waiting room; in either place the person is a passenger in the care of the company: Shannon v. Boston & Albany Rd., 78 Me.

For a passenger to jump upon or off of a moving train is prima facie negligence; if injured thereby, it is incumbent on him, in an action against the railroad, to prove a reasonable excuse for the act: Id.

Whether a passenger had or not a reasonable excuse for jumping upon or off of a moving train is usually a question for the jury: an extreme case either way may be determined by the court. Fear of personal danger is not the only excuse that will exonerate one in jumping from a moving train. A passenger may in some cases be justified in alighting from a moving train merely to save himself from serious inconvenience; all depends upon the speed of the train and the attendant circumstances: Id.

Stock falling in Pit on Neighbor's Premises.-The defendant dug a pit under his cotton gin for a cotton-press, near the public highway, and left it unenclosed, and corn and cotton seed scattered about it. The plaintiff's cow fell into the pit and was killed. Held, that the defendant was guilty of negligence and must pay the value of the cow; and that the plaintiff was not guilty of contributory negligence in turning his cow out on the commons remote from the gin: Jones v. Nichols, 46 Ark.

OFFICER.

Change of Salary by smaller Appropriation-Interpretation by Statutes-Implied Repeal.-A statute fixing the annual salary of a public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely appropriate a less amount for the services of that officer for particular fiscal years, and which contain no words that expressly or by clear implication modify or repeal the previous law: United States v. Fisher, 109 U. S. 143; and United States v. Mitchell, Id. 146, distinguished: United States v. Langston, S. C. U. S., Oct. Term 1885.

PARTNERSHIP. See Contract; Exemption.

RAILROAD. See Common Carrier; Master and Servant; Negligence; Tax and Taxation.

Crossings-Land Damages-Constitutional Law-In assessing damages to be recovered by a railroad corporation against a town for its land taken by locating town ways across its track, the jury may take into consideration, in order to ascertain present value, not only the use which the railroad now makes of its located limits at the crossings, but what use it may reasonably be expected it will in the near future make of the

same: Portland and Rochester Rd. Co. v. Inhabitants of Deering, 78 Me.

It is not an unconstitutional exercise of legislative power to require a railroad corporation to build and maintain highway crossings laid out over its track, so far as such crossings are within its located limits, although the law imposing such burden was enacted since the railroad was built, the company being subject to the general laws of the state in existence when its charter was granted and such as should be thereafter passed: Id.

Damages are not recoverable, by a railroad company against a town which has laid out ways over its track, for the interference and inconvenience occasioned to its business by the opening of the new ways, nor for any increased risks or increased expense in running its trains caused thereby: Id.

Power to make Lease or other Contract of Control-Effect of such Contract when Ultra Vires.-Unless specially authorized by its charter -or aided by some other legislative action, a railroad company cannot, by lease or other contract, turn over to another company, for a long period of time, its road and all its appurtenances, the use of its franchises, and the exercise of its powers, nor can any other railroad company, without similar authority, make a contract to run and operate such road, property and franchises of the first corporation. Such a contract is not

among the ordinary powers of a railroad company, and is not to be inferred from the usual grant of powers in a railroad charter: Thomas v. Rd. Co., 101 U. S. 91, reaffirmed: Penn Co. v. St. Louis, Alton, &c., Rd., S. C. U. S., Oct. Term 1885.

The doctrine that acts may be done and property change hands, under void contracts which have been fully executed, with which courts will not interfere, is sound, but any relief in such cases must be based on the invalidity of the contract, and not in aid of its enforcement. While the plaintiff in this case might recover, in an appropriate action the rental value of the use of its road against the lessee company, the other defendants who had received nothing, but had been paying out money under a void contract, cannot be compelled to pay more money under the same contract: Id.

SALE.

When Title passes- -Trover.-Flour was ordered by brokers for Dub & Co., with this direction: "Ship as soon as you can, forty-five days draft, to B. Dub & Co." Dub & Co. assigned it to Matthewson, as their assignee, without returning the draft signed, it being sold with the bill of lading and an invoice stating the terms as forty-five days of acceptHeld, the giving of the acceptance was a condition precedent to the acquisition of title by B. Dub & Co., and the sellers of the flour might maintain trover therefor against the assignee: Matthewson v. Belmont Co., 73 or 74 Ga.

ance.

SET OFF.

Purchase by Factor in own Name.-If a factor sell in his own name, as owner, and does not disclose his principal, and acts ostensibly as the real owner, although the principal may afterwards bring his action upon the contract against the purchaser, yet the latter, if he bona fide dealt

with the factor as owner, will be entitled to set off any claim he may have against the factor in answer to the demand of his principal: Ruan v. Gunn, 73 or 74 Ga.

Exemption-Presumption as to Funds in hands of Defaulting Officer. -The security on the bond of a defaulting county treasurer, against whom an execution has issued for funds belonging to the county in the hand of the treasurer, cannot take a homestead, which will exempt his property from the debt incurred by reason of his obligation on the bond: Mc Watty v. Jefferson Co., 73 or 74 Ga.

The presumption would be that the funds in the hands of the treasurer arose at least in part from taxes, and no evidence was offered by the surety in this case that the fund or any part of it came from other sources, though the treasurer, his principal in the bond, was bound to keep a correct record of all funds received by him and the source from which they came: Id.

TAX AND TAXATION.

Assessment including Property not Legally Assessable—Railroads— Fences not part of the Roadway-An assessment of different kinds of property, as a unit, which includes property not legally assessable by the Assessment Board, and in which the part of the tax assessed against the latter property, is not separable from the other part is invalid, and will not support an action for the recovery of the entire tax so levied: Santa Clara County v. South Pacific Rd., S. C. U. S., Oct. Term, 1885.

The fences erected upon the line of a railroad, between its roadway and the land of conterminous proprietors, cannot be assessed under the head of "roadway" Id.

TELEGRAPH.

Damages-Contract.-A verbal contract that the plaintiff should labor for a manufacturer at two dollars and twenty-five cents per day, commencing Monday, September 1st, but for no stipulated period, is defeasable at the will of either party, and a telegraph company is liable, for nominal damages only, in not delivering a telegram to the plaintiff, seasonably notifying him of the terms of the contract, whereby he lost all benefit from it: Merrill v. Western Union Tel. Co., 78 Me.

TRIAL.

Evidence-Personal Examination of Party for Personal Injury.— Where a plaintiff in an action for personal injuries alleges that they are of a permanent nature, the defendant is entitled, as a matter of right, to have the opinion of a surgeon upon his condition, based upon personal examination; and the court should, upon demand of the defendant, compel the plaintiff to submit to such examination. But where the evidence of experts is already abundant, the court must exercise its sound discretion in compelling or refusing the examination; and its action is subject to review in case of abuse: Sibley v. Smith, 46 Ark.

TRUST AND TRUSTEE.

Creation of Trust-Presumption as to Interests of Beneficiaries.Sect. 5573, Howell's Stat. Michigan, provides that “ express trusts may be created,"**"for the beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations as to time prescribed in this title:" Held, that the letters, statements and agreements, which passed between the plaintiff and defendant, as evidence in this case, are sufficient to establish an express trust within the meaning of the statute. The objection that the individual interests of the respective beneficiaries are not stated, is met by the rule, which prevails in Michigan, as in all other states where the principles of the common law are observed, that where a conveyance of land is made to two or more persons, and the instrument is silent as to the interest which each is to take, the presumption will be that their interests are equal: Loring v. Palmer, S. C. U. S., Oct. Term 1885.

USURY.

What Amounts to Relief in Equity.-Presumption as to Laws of Another State.-It is not usury to add the interest on several notes to the principal, and then add to this sum the interest on it at ten per cent. per annum for one year, and then take a new note for this last sum payable one year after date, with interest at ten per cent. per annum after maturity, in payment of the old notes: Grider v. Driver, 46 Ark.

It is not usury for one to sell property on a credit for a higher price than he would have sold for cash, with legal interest added; but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price with legal interest would amount to, this is an agreement for forbearance that is usurious: Id.

A plaintiff will not be relieved in equity from a usurious contract except upon condition that he pays the principal and legal interest: Id.

Although it will be presumed in many cases, in the absence of a contrary showing, that the laws of other states are the same as our own, the presumption will not be indulged where our laws impose a penalty or work a forfeiture as in the case of usury: Id.

Excessive Interest Paid after Maturity of Debt.-Where the maker of a promissory note payable in futuro, with 10 per cent. interest from date, omitting the words "until paid," pays that rate of interest after the maturity of the note, he cannot recover the excess paid over 6 per cent. accruing after maturity: Rector v. Collins, 46 Ark.

VENDOR AND Vendee.

Purchase by Vendee of Outstanding Incumbrance.-If a vendee of land remaining in possession, buys in an outstanding incumbrance, he will not be permitted to set up an adverse title under it. The purchase enures to the benefit of the vendor's title, and the vendee can only abate the unpaid purchase-money, or in case he has paid this, recover the amount he has expended by action on the covenant broken or other proper remedy: Bush v. Adams, 21 or 22 Fla.

WITNESS. See Criminal Law.

THE

AMERICAN LAW REGISTER.

SEPTEMBER 1886.

INCOME BONDS AND MORTGAGES.

SECT. 1. Income bonds defined; forms of.

Corporate income bonds are those payable out of the net income of the corporation. In form they may be various. They may in terms be negotiable, as where they are payable to bearer or order; or they may be unnegotiable in form, as where they are payable to the obligee without terms of negotiability. They may be payable only out of net income, in which case, if there is no net income, there would be nothing to pay; or they may be payable unconditionally, and whether there shall be net income sufficient for that purpose or not. They may bear a fixed rate of interest, or the rate may be graduated by the amount of the net earnings, or be fixed at a certain per centum of the net earnings. They may provide that interest shall be payable only out of the net income of the current year, or that, in case of arrearages from insufficiency of income of the current year, the interest be paid out of the net income of subsequent years, whenever that is sufficient for the purpose; and they may or may not have interest-coupons attached to them.

SECT. 2. Income bondholders lien on the income.

Income bondholders have a specific lien upon the net income of the corporation, and such income is specifically pledged to the use of such bondholders, and it is theirs for the purpose of paying such bonds and interest, according to the terms of the bonds, as soon as it is earned: Ketchum v. St. Louis, 101 U. S. 306; Rutten v. Union Pacific Rd., 17 Fed. Rep. 480; 16 Reporter 199; Galena & Chicago Rd. v. Menzics, 26 Ill. 121; Jones on Corp., sect. 114. (553)

VOL. XXVIV.-70