104. SALES-Delivery-Place.- Delivery to the carrier designated by the consignee is a delivery to the consignee, subject to the vendor's lien.-STATE V. PETERS, Me., 39 Atl. Rep. 342.

105. SALE-What Constitutes-Agency. - A contract under which a manufacturing company appoints a merchant its agent to sell tobacco, with the title to remain with it until sold, and agrees to pay a commis. sion, reserving the right not to pay it if the tobacco is sold for less than the price fixed by it, and in which the merchant warrants that every shipment shall be paid for in full, is one of sale, and not of agency.WILLIAMS V. DRUMMOND TOBACCO CO., Tex., 44 S. W. Rep. 185.

106. SALE BY SAMPLE AND DESCRIPTION-Warranty.Where goods are sold, not only by sample, but by de. scription as well, with a warranty that they shall correspond with both the description and sample, it is not sufficient that the bulk of the goods correspond with the sample, if the goods do not also correspond with the description; and the vendee may retain the goods, and rely upon bis warranty as to description.-MIAMISBURG TWINE & CORDAGE CO. v. WOHLHUNTER, Minn., 74 N. W. Rep. 175.

107. SPECIFIC PERFORMANCE-Assumption of Mortgage Debt.-A verbal agreement by the grantee to as sume a mortgage debt on property conveyed is independent of the deed, and may be enforced.-ORDWAY V. DOWNEY, Wash., 51 Pac. Rep. 1047.

108. SUBROGATION-When Allowed.-"The doctrine of subrogation is not administered by courts of equity as a legal right, but the principle is applied to subserve the ends of justice, and to do equity in the particular case under consideration. It does not rest on contract, and no general rule can be laid down which will afford a test in all cases for its application. Whether the doctrine is applicable to any particular case depends upon the peculiar facts and circumstances of such case."-AULTMAN, MILLER & Co. v. BISHOP, Neb., 74 N. W. Rep. 55.

109. TAXATION-Assessment of Personal Property.Though Code, § 1356, provides that a person assessed for taxation shall be informed in writing of the valua tion placed on his property, and that he may appear before the board of review if aggrieved thereby, the omission of such notice will not invalidate the assess ment, which will be presumed to have been properly made.-IN RE KAUFFMAN'S ESTATE, Iowa, 74 N. W. Rep. 8.

110. TAX CERTIFICATE-Evidence of Assignment.-An offer and reception in evidence of a certificate of purchase at tax sale, if it have an indorsement of an assignment thereon, does not include and carry with it, as evidence, such assignment, unless the offer and reception were sufficiently broad to, and did, include such indorsement.-JOHNSON V. ENGLISH, Neb., 74 N. W. Rep. 47.

111. TAX SALE-Notice to Redeem.-It is the settled rule in this State that a purchaser at a tax sale is not required to give the notice to redeem mentioned in section 3 of article 9 of the constitution, in order to maintain an action to enforce a tax lien.-VAN ETTEN V. MEDLAND, Neb., 74 N. W. Rep. 33.

112. TORTS-Contribution between Joint Wrongdoers. -One who has been convicted and compelled to pay a fine under an indictment charging him with the offense of "unlawfully, willfully and feloniously" cutting and carrying away timber from the land of another, cannot compel contribution from one from whose land he had undertaken to cut timber, and who pointed out as a part of his boundary the land in question, as there can be no contribution between joint wrongdoers, where the person who seeks to compel contribution knew, or must be presumed to have known, that the act was unlawful.-SUTTON V. MORRIS, Ky., 44 S. W. Rep. 127.

113. TRESPASS TO REALTY-Tenants by Entireties. - A husband may recover alone damages to a storeroom of which he had possession, caused by an explosion,

though the premises were owned by him and his wife as tenants by entireties.-SHERIDAN GAS, OIL & COAL Co. V. PEARSON, Ind., 49 N. E. Rep. 357.

114. TRIAL-Jurors- Competency.-Where a juror had formed and expressed an opinion as to the guilt of ac cused, derived solely from rumor and newspapers, but stated that, nevertheless, he believed he could render an impartial verdict, though he had expressed the opposite belief on the examination by counsel for de fendant, and there was nothing to show any feeling against defendant or his cause, a challenge for cause was properly overruled.-SHIELDS V. STATE, Ind., 49 N. E. Rep. 351.

115. TRUST-Delivery.-A valid trust may be created by executing and delivering an assignment of an equitable interest to a trustee.-TARBOX V. GRANT, N. J., 39 Atl. Rep. 378.

116. TRUST-Resignation of Trustee.-Under a power given to a wife to appoint and choose by her writing, under her seal, another trustee instead of the one named in a trust deed executed by her husband con veying real and personal property in trust for the wife and her children, whenever the named trustee should wish to resign his trust, or should die leaving the same unfulfilled, the wife has authority to appoint her hus band to be such trustee upon the resignation of the one named. The husband's acceptance of such ap pointment binds him to execute the trust according to its terms, and he thereby becomes invested with the same powers, and is subject to the same responsibili ties, as other trustees; and the wife is entitled to the same protection against him in equity as any other cestui que trust.- STEARNS V. FRALEIGH, Fla., 23 South. Rep. 18.

117. WILLS-Nature of Estate-Deed.-A clause in a will which provides that land shall be purchased for the benefit "of M during his life, and at his death to be the property of any child surviving him, and, in case he dies without children, then to be divided among" testator's children and certain grandchildren, creates only a life estate in M.-MORRIS V. EDDINS, Tex., 44 8. W. Rep. 203.

118. WILLS-Nature of Estate Devised.-A devise to testator's son of a house and lot; "also, the use of the adjoining lot, to be used and enjoyed by him during the term of his natural life; and;from and immediately after his death I give, bequeath and devise the same to grandchildren"-passes a purely legal estate, as to both lots.-HAYDAY V. HAYDAY, N. J., 39 Atl. Rep. 378. 119. WILLS-Power of Trustee to Sell.-Under a will devising the share of testator's daughter in his estate to her brother, "to rent, sell, put at interest and to re ceive and manage her interest," for the sole benefit of her and her children, the trustee had the power, the daughter uniting in the deed, to sell and convey a part of the land devised, and, as it was not the duty of the purchaser to look to the application of the purchase money, the remedy of the remainder-men, if any, against the trustee, and not against the purchaser.COX V. FANT, Ky., 44 S. W. Rep. 117.

19

120. WILLS-Rule in Shelley's Case. In a devise of land to one, "to hold the same during the term of his natural life," and giving him the use, rents and profits of it during such time, but providing that he should "have no power to convey or dispose of the same" for a period longer than his life, and that at his death it should descend to his heirs, the word "heirs" will not be given its technical effect, and the rule in Shelley's Case will not apply, as it was testator's clear intention to create a life estate only.-WESCOTT V. BINFORD, Iowa, 74 N. W. Rep. 18.

121. WILLS Substituted Legacy Revocation. - A substituted or additional legacy in a will is prima facie payable out of the same funds, and subject to the same incidents and conditions, as is the original legacy, r respective of whether the result is advantageous to the legatee.-IN RE DE LAVEAGA'S ESTATE, Cal., 51 Pac. Rep. 1074.

Central Law Journal.

ST. LOUIS, MO., APRIL 15, 1898. Crown v. Marion National Bank, recently decided by the Supreme Court of the United States, involved important questions concerning the construction of sections of the National Banking Law, regulating the rate of interest to be charged by national banks. One of the sections of that law provides that national banks may charge on any loan or discount made, or upon any note, bill of exchange or other evidence of debt, interest at the rate

allowed by the laws of the State or territory or district where the bank is located, and no more, except that where by the laws of any State a different rate is limited for banks of issue organized under State laws, the rate so limited shall be allowed for associations organized or existing in such State. Another section provides that the taking or charging a rate of interest greater than that allowed, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed upon, and that in case the greater rate of interest Las been paid the person by whom it has been paid or his legal representatives may recover back twice the amount of the interest thus paid from the bank taking the same.

In construing these provisions the court said that interest included in a renewal note or evidenced by a separate note does not cease thereby to be interest and become principal so as to escape the forfeiture provided for knowingly taking or charging an illegal rate of interest. If, the court said, the bank sues upon the note, bill or other evidence of debt held by it, the debtor may insist that the entire interest, legal and usurious, included in written obligations and agreed to be paid, but which has not actually been paid, shall be either credited upon the note or eliminated from it and judgment given only for the original principal debt, with interest at the legal rate from the commencement of the suit.

The forfeiture declared by the statute, the court held, is not waived by giving a renewal note in which is included the usurious interest, and no matter how many renewals may be made, if the bank has charged a greater rate of interest than the law allows, it must, if the forfeiture clause of the statute be relied

on and the matter is thus brought to the at tention of the court, lose the entire interest which the note carries or which has been agreed to be paid. By no other construction of the statute, the court says, can effect be given to the clause forfeiting the entire interest which the note, bill or other evidence of debt carries, or which was agreed to be paid, but which has not actually been paid.

Some attention was devoted by the court to the contention that within the meaning of the statute interest is "paid" when it is included in a renewal note, so that when suit is

brought upon the last note calling for interest from its date only the interest accruing on the apparent principal of that note is subject to forfeiture. Judge Harlan, who read the opinion, said, however, that the statute could not be so construed, for if interest were paid by simply including it in a renewal note it would follow that as soon as the usurious interest "agreed to be paid" was included in a renewal note the borrower or obligor could sue the lender or obligee and "recover back twice the amount of the interest thus paid," when he had not, in fact, paid the debt nor any part of the interest as such. This, Justice Harlan said, could not be a sound interpretation of the statute; the words "in case the greater rate of interest has been paid" refer to interest actually paid as distinguished from interest included in the note and "agreed to be paid." If, for example, one executes his note to a national bank for a named sum as evidence of a loan to him of that amount, to be paid in one year at ten per cent. interest, such a rate of interest being illegal, and if renewal notes are executed each year for five years without any money being in fact paid by the borrower-each renewal note including past interest, legal and usurious-the sum included in the last note in excess of the sum originally loaned would be interest which that note carried or which was agreed to be paid, and not as to any part of it interest paid. On the other hand, if the note when sued on includes usurious interest, or interest upon usurious interest agreed to be paid, the holder may elect to remit such interest, and it cannot then be said that usurious interest was paid to him. The construction of the law given in the decision is of a nature to render it difficult to evade its provisions in so far as they are intended to prevent usury.

NOTES OF IMPORTANT DECISIONS.

OF

EVIDENCE AGENCY DECLARATIONS AGENT.-In Newell v. Chipman, 49 N. E. Rep. 631, decided by the Supreme Judicial Court of Massachusetts, it was held, conceding that the fact of agency cannot be shown by the declarations of an agent, evidence is nevertheless competent to show that, in what the agent said and did, he purported to act for defendant, and not for some one else. The court said that, "there were two aspects in which this case may have gone to the jury. One was that the defendant herself ordered the stone of the plaintiff, and promised to pay him therefor. The other was that she contracted for it through Taylor & Gibson. In the latter aspect of the case, it was necessary to show that Taylor & Gibson were her duly authorized agents. This, of course, could not be shown by their declarations to that effect. But, as one step in establishing the defendant's liability in this aspect of the case, it was necessary to show that in what they said and did they purported to act for her, and not for some one else. And for this purpose what they said and did was competent. Such testimony has been received elsewhere without objection. Riley v. Packington, L. R. 2 C. P. 536. The testimony thus introduced was not the only evidence relating to the question of agency. There was testimony tending to show that Taylor drew the plans and specifications; that he supervised the preparations for the construction of the foundation, and also the work in the erection of the house on the defendant's premises; that he went with her to induce the plaintiff to figure on the stone for the foundation; that he was afterwards sent to him by her concerning the stone for the foundation; and that the paper which was signed by the plaintiff, and which was procured by Taylor, through Gibson, after Taylor had been sent to the plaintiff by the defendant, was considered by the defendant, Taylor, and Gibson, when the contract between the defendant and Gibson was signed. There was also testimony tending to show that the defendant personally urged the plaintiff to send the stone, and promised to pay for it, after the contract had been signed between her and Gibson. We think that it would not have been an unwarrantable inference on the part of the jury, from this testimony, that Taylor had authority to act for the defendant in contracting with the plaintiff for the stone."

INJUNCTION BREACH OF CONTRACT - SPECIFIC PERFORMANCE.-The Supreme Court of Illinois holds in Welty v. Jacobs, 49 N. E. Rep. 723, that equity will not restrain the breach of a contract to furnish for a certain period the use of a theater, cleaned, lighted and heated, together with stock, scenery and equipments, and to provide stage hands, carpenters, house programmes, licenses, billboards, stage furniture and properties, made in consideration of plaintiff's agreement to furnish a company to perform a certain

play, or enjoin the use and occupation during said period by any other company. It was further held that a contract to furnish a theater fully supplied with stage hands and employees will not be specifically enforced, where the other party to the contract could not be compelled to carry out his agreement, and furnish a properly equipped company to produce a certain drama at such theater. The court said in part: "But it is urged that courts of equity will by injunction restrain the violation of contracts of this character in many cases where they cannot decree specific performance, and the following among other cases are referred to: Western Union Tel. Co. v. Union Pac. Ry. Co., 3 Fed. Rep. 423-429; Wells, Fargo & Co. v. Oregon R. & Nav. Co., 15 Fed. Rep. 561, and 18 Fed. Rep. 517; Wells, Fargo & Co. v. Northern Pac. R. Co., 23 Fed. Rep. 469. Without determining whether there may not be exceptional cases not falling within the general rule, we think the rule is as stated in Chicago, M. G. L. & F. Co. v. Town of Lake, 130 Ill. 42, 22 N. E. Rep. 616, and the authorities there quoted. It was there said (page 60, 130 Ill., and page 619, 22 N. E. Rep.): The bill of complaint in this case. though not strictly a bill for the specific performance of a contract, is in substance a bill of that kind. In 3 Pom. Eq. Jur. sec. 1341, it is said: "An injunction restraining the breach of a contract is a negative specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrine and rules. It may be stated, as a general proposition, that whenever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will re strain its breach by injunction, if this is the only practical mode of enforcement which its terms permit." It is plain that, as a general rule, to enjoin one from doing something in violation of his contract is an indirect mode of enforcing the affirmative provisions of such contract, although such an injunction may often fall short of accomplishing its object. It is obvious, from what has been said and from the authorities, that to enjoin appellee Jacobs, as prayed in the bill, from refus ing to furnish the usual and necessary light, beat. music, regular stage hands, stage carpenter. ushers, equipments, etc., provided for in the contract, would be the same, in substance, as to command him to furnish them, and without them the use of the theater building would seem to be of little use. It is practically conceded by counsel for appellant that this part of the contract could not be specifically enforced as prayed, or otherwise, in equity; but it is contended that this part of the contract is merely incidental to the more important part of it, which was the right to occupy and use the theater and its furnishings, and give therein the performances provided for, and to exclude from a like occupation and use the other appellee, Newell, and that the injunction was proper for that purpose. This would have

been an indirect method of enforcing a part performance of the contract, and courts will not enforce specific performance of particular stipulations separated from the rest of the contract, where they do not clearly stand by themselves, unaffected by other provisions. Baldwin v. Fletcher, 48 Mich. 604, 12 N. W. Rep. 873. Even if such a decree might have been sustained, we are satisfied the sound legal discretion of the court was not violated in refusing it, or in dissolving the injunction after it was granted. Appellant's remedy, if any he had, was at law."

ANIMALS-DESTRUCTION OF DISEASED ANIMALS.-In Houston v. State, decided by the Supreme Court of Wisconsin, it was held that where certain cattle were destroyed by authority of the State veterinarian, under color of Laws 1885, ch. 467, as amended by Laws 1887, ch. 76, providing for the destruction of such animals when affected with a "contagious or infectious disease of malignant or very fatal nature," none of which cattle were at the time they were so condemned affected with any disease whatever, such destruction thereof was without authority of law and tortious, and that Rev. St. § 3200, authorizing any person aggrieved by the refusal of the legislature to allow any just claim against the State to bring an action against the State, by filing with the clerk of the supreme court a complaint setting forth the nature of such claim (enacted in pursuance of Const. art. 4, § 27, providing that the "legislature shall direct by law in what manner and in what courts suits may be brought against the State"), does not include a demand based on the alleged tortious acts of officers of the State; and therefore an action cannot be maintained against the State for damages for the wrongful and tortious destruction of plaintiff's property by its officers under color of police regulations duly passed by the legislature. The court says: "It is fairly established, by adjudications too numerous to mention, that a State may, in the proper exercise of its police power, authorize the destruction of such property as has become a public nuisance, or has an unlawful existence, or is noxious to the public health, public morals. or public safety, without compensation, notwithstanding the prohibition in section 1, art. 14, of the amendments to the constitution of the United States. Bittenhaus v. Johnston (Wis.), 66 N. W. Rep. 805; Mugler v. State of Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. Rep. 6; Lawton v. Steele, 119 N. Y. 226, 23 N. E. Rep. 878, affirmed 152 U. S. 133, 14 Sup. Ct. Rep. 499. The question of such power, however, does not here arise. The demurrer admits the facts alleged in the complaint. The complaint alleges that none of the cattle destroyed were affected with any disease at the time they were condemned, but were each and all entirely free from any disease, and healthy, strong and vigorous animals. The statute only authorized the destruction of animals in case they were affected with some 'contagious or infectious

disease of malignant or very fatal nature.' Sanb. & B. Ann. St. § 1492a. Unless the animals were so diseased, in fact, their slaughter was without authority of law, and hence tortious. Pearson v. Zehr, 138 Ill. 48, 29 N. E. Rep. 854; Miller v. Horton, 152 Mass. 540, 26 N. E. Rep. 100. The question recurs whether this suit can be maintained against the State for the injury sustained for such alleged unlawful destruction. Prior to the eleventh amendment to the constitution of the United States, it was held, in effect, that a State might be sued in the Supreme Court of the United States by an individual citizen of another State. Chisholm v. Georgia, 2 Dall. 419. But since that amendment, it is believed, the courts have uniformly held that no State could be sued in any court without its express consent. Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. Rep. 128; Chicago, M. & St. P. Ry. Co. v. State, 53 Wis. 509, 10 N. W. Rep. 560. The same is true of the United States. Schillinger v. U. S., 155 U. S. 163, 15 Sup. Ct. Rep. 85; U. S. v. North Carolina, 136 U. S. 211, 10 Sup. Ct. Rep. 920; State v. Hill, 54 Ala. 67; Clark v. State, 7 Cold. 306; Railroad Co. v. Alabama, 101 U. S. 832. Our constitution expressly provides that the legislature shall direct by law in what manner and in what courts suits may be brought against the State.' Const. Wis. art. 4, § 27. In pursuance of that provision, the legislature at an early day provided that 'it shall be competent for any person, deeming himself aggrieved by the refusal of the legislature to allow any just claim against the State, to commence an action against the State, by filing a complaint, setting forth fully and particularly the nature of such claim, with the clerk of the supreme court, either in term time or in vacation.' Rev. St. § 3200. This section only relates to claims which, if allowed, render the State a debtor to the claimant. Chicago, M. & St. P. Ry. v. State, 53 Wis. 509, 10 N. W. Rep. 560; Clodfelter v. State, 86 N. Car. 51; State v. Hill, supra. This statute does not include a demand based upon the unlawful and tortious acts of officers or agents of the State. Hill v. U. S., 149 U. S. 593, 13 Sup. Ct. Rep. 1011. Thus, in Massachusetts, it is held that a similar statute did not extend to a claim for damages resulting from the misfeasance or negligence of its officers and agents in performing their duties.' Murdock ParlorGrate Co. v. Com., 152 Mass. 28, 24 N. E. Rep. 854. The same construction of the word 'claim' has been applied by this court to demands against municipalities. Kelley v. City of Madison, 43 Wis. 638; Bradley v. City of Eau Claire, 56 Wis. 168, 14 N. W. Rep. 10; Jung v. City of Stevens Point, 74 Wis. 547, 43 N. W. Rep. 513; Sommers City of Marshfield, 90 Wis. 59, 62 N. W. Rep. 937. The law is well established that neither the State nor the United States is answerable in damages to an individual for an injury resulting from the alleged misconduct or negligence or tortious acts of its officers or agents. Gibbons v. U. S., 8 Wall. 269; Langford v. U. S., 101 U. S. 341; German Bank of Memphis v. U. S., 148 U. S. 573, 13

V.

Sup. Ct. Rep. 702; Clark v. State, 7 Cold. 306. It follows from what has been said that this action for the alleged unlawful and tortious action of the officers and agents of the State cannot be maintained against the State, for the simple reason that the legislature has never authorized an action in this court for such misconduct."

PARDONS.

Some months since a case arose in one of the circuit courts of Oregon upon the following state of facts: One Betz had been convicted of a felony, had been sentenced to a term in the Oregon penitentiary, had appealed to the supreme court, and was confined in the county jail, under a stay of execution, pending a hearing of the appeal. At this time an application was made to the governor of Oregon for a warrant of extradition to Illinois, in order that Betz might be tried there upon a charge of murder averred to have been committed in Chicago. The Oregon executive granted this warrant to the agent of the State of Illinois, and to insure his 'deportation issued a full pardon of the offense against the laws of Oregon. Betz, however, refused to accept the proffered favor, refused to receive the pardon, which was deposited with the sheriff of the county where he was confined, and sued out a writ of habeas corpus before a circuit judge, thereby attempting to resist the claim of the Illinois officers to a right to remove him. After a hearing, the court held that this pardon could not be forced upon him in invitum; that the Illinois officials had no right to his person, prior to the expiration of his term of service; that a pardon was a grant, to the validity of which delivery and acceptance were essential, and remanded the petitioner to the custody of the sheriff. This decision excited some discussion at the time; it is believed that it was strictly in accordance with the prescriptions of law, and that any other determination of the question would have been without warrant, either in reason or authority. An examination of the nature, scope and effect of a pardon may prove not without interest. What is a pardon? A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts

for a crime he has committed. Pardon is to be distinguished from amnesty. The former applies only to the individual, releases him from the punishment fixed by law for his specific offense, but does not affect the criminality of the same or similar acts, when performed by other persons, or repeated by the same person. The latter term denotes an act of grace extended by the government to all persons who may come within its terms, and which obliterates the criminality of past acts done, and declares that they shall not be treated as punishable. A pardon is a deed of grant, and like any other deed of grant it must be pleaded. This was the rule at common law. There is a dictum in Jenkins, p. 169, case 62, cited in U. S. v. Wilson, infra, to the effect that it need not be pleaded be cause the king has an interest in the life of a subject, but this view is unsupported by au thority. Upon the other hand, a pardon by act of parliament, such as might be granted at common law, need not be pleaded, because the courts would judicially notice the laws so passed. It is not perceived, however, that a pardon by legislative act would differ in any of its essential features from one result

ing from executive action. As a pardon is a grant, so it is a deed, to the validity of which delivery and acceptance are essential. Like all grants, it is to be construed in favor of the grantee; and its terms are to be strictly construed.4 The doctrine of pardon in the United States is essentially the same as that of England, being derived from it. The power has always existed as a prerogative of the English crown. It has grown with the growth of the common law. While the power has at times been exercised by parliament, and limited and controlled by that body, in general it has been exercised by the king, and left entirely to his judgment and discretion.

In the United States, by the constitution, except in cases of impeachment, it is conferred upon the president. So, in the States, it is left to the executives, subject to certain limitations.5 Like a contract, it is not a prerequisite that particular words be 1 Black's Law Dict., tit. Pardon.

2 Hawkins' P. C., b. 2, ch. 37, § 64; Comyns' Dig., tit. Pardon H.; 4 Bl. Com., p. 337; this author also stating that it may be pleaded in arrest of judgment. 34 Bl. Com., p. 376.

4 State v. Shelton, 65 N. Car. 294, 17 Am. & Eng. Enc. of Law, 330.

5 17 Am. & Eng. Enc. of Law, 318-319.