for the exclusive right mentioned in it for twenty-five years; that it was within the power of the Legislature of Louisiana to make that contract, and as the constitutional provisions of 1879 and the subsequent ordinances of the city impaired its obligation, they were to that extent void. No one can examine the provisions of the act of 1869 with the knowledge that they were accepted by the Crescent City Company, and so far acted on,that a very large amount of money was expended in a vast slaughter-house, and an equally extensive stock-yard and landing-place, and hesitate to pronounce that in form they have all the elements of a contract on sufficient consideration. It admits of as little doubt that the ordinance of the city of New Orleans, under the new Constitution, impaired the supposed obligation imposed by those provisions on the State, by taking away the exclusive right of the company granted to it for twenty-five years, which was to the company the most valuable thing supposed to be secured to it by the statutory contract. We do not think it necessary to spend time in demonstrating either of these propositions. We do not believe they will be controverted. The appellant however insists that so far as the act of 1869 partakes of the nature of an irrepealable contract, the Legislature exceeded its authority, and it had no power to tie the hands of the Legislature in the future from legislating on that subject without being bound by the terms of the statute then enacted. This proposition presents the real point in the case. Let us see clearly what it is. It does not deny the power of that Legislature to create a corporation, with power to do the business of landing live-stock and providing a place for slaughtering them in the city. It does not deny the power to locate the place where this shall be done exclusively. It does not deny even the power to give an exclusive right for the time being to particular persons or to a corporation to provide this stock-landing and to establish this slaughter-house. But it does deny the power of that Legislature to continue this right so that no future Legislature, nor even the same body, can repeal or modify it, or grant similar privileges to others. It concedes that such a law, so long as it remains on the statute book as the latest expression of the legislative will, is a valid law and must be obeyed, which is all that was decided by this court in the Slaughter-House Cases. But it asserts the right of the Legislature to repeal such a statute or to make a new one inconsistent with it, whenever in the wisdom of such Legislature it is for the good of the public it should be done. Nor does this proposition contravene the established principle that the Legislature of a State may make contracts on many subjects which will bind it, and will bind succeeding Legislatures for the time the contract has to run, so that its provisions can neither be repealed nor its obligation impaired. The examples are numerous where this has been done and the coutract upheld. The denial of this power in the present instance rests upon the ground that the power of the Legislature intended to be suspended is one so indispensable to the public welfare that it cannot be bargained away by contract. It is that well-known but undefined power called the police power. We have not found a better definition of it for our present purpose than the extract from Kent's Commentaries in the earlier part of this opinion. "The power to regulate unwholesome trades, slaughter-houses, operations offensive to the senses," there mentioned, points unmistakably to the powers exercised by the act of 1869 and the ordinances of the city under the Constitution of 1879. While we are not prepared to say that the Legislature can make valid contracts on no subject embraced in the largest definition of the police power, we think that in regard to two subjects so embraced it cannot by any contract limit the exercise of those powers to the prejudice of the general welfare. These are the public health and public morals. The preservation of these is so necessary to the best interests of social organization that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime. It cannot be permitted that when the Constitution of a State, the fundamental law of the land, has imposed upon its Legislature the duty of guarding, by suitable laws, the health of its citizens, especially in crowded cities, and the protection of their person and property by suppressing and preventing crime, the power which enables it to perform this duty can be sold, bargained away, under any circumstances, as if it were a mere privilege which the legislator could dispose of at his pleasure. This principle has been asserted and repeated in this court in the last few years in no ambiguous terms. The first time it seems to have been distinctly and clearly presented was in the case of Boyd v. Alabama, 94 U. S. 646. That was a writ of error to the Supreme Court of Alabama, brought by Boyd, who had been convicted in the courts of that State of carrying on a lottery contrary to law. In his defense he relied upon a statute which authorized lotteries for a specific purpose, under which he held a license. The repeal of this statute, which made his license of no avail against the general law forbidding lotteries, was asserted by his counsel to be void and as impairing the obligation of the contract, of which his license was evidence, and the Supreme Court of Alabama had in a previous case held it to be a contract. In Boyd's case however that court held the law under which his license was issued to be void, because the object of it was not expressed in the title as required by the Constitution of the State. This court followed that decision, and affirmed the judgment on that ground. But in the concluding sentences of the opinion by Mr. Justice Field, the court, to repel the inference that the contract would have been irrepealable if the statute had conformed to the special requirement of the Constitution, said: We are not prepared to admit that it is competent for one Legislature, by any contract with an individual, to restrain the power of a subsequent Legislature to legislate for the public welfare, and to that end to suppress any and all practices tending to corrupt the public morals," citing Moore v. State, 48 Miss. 147, and Metropolitan Board of Erie v. Barrie, 34 N. Y. 663. This cautionary declaration received the unanimous concurrence of the court, and a year later the principle became the foundation of the decision in the case of The Beer Co. v. Massachusetts, 97 U. S. 28. In that case the plaintiff in error, the Boston Beer Company, had been chartered in 1828 with a right to manufacture beer, which this court held to imply the right to sell it. Subsequent statutes of a prohibitory character seemed to interfere with this right, and the case was brought to this court on the ground that they impaired the obligation of the contract of the char ter. But the court, speaking by Justice Bradley, held that on this subject the Legislature of Massachusetts could make no irrepealable contract. "Whatever difference of opinion," said the court, "may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and public morals. The Legislature cannot by any contract divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, Salus populi suprema lex, and they are to be attain and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself." In the still more recent case of Stone v. Mississippi, 101 U. S. 814, the whole subject is reviewed in the opinion delivered by the chief justice. That also was a case of a chartered lottery, whose charter was repealed by a Constitution of the State subsequently adopted. It came here for relief, relying on the clause of the Federal Constitution against impairing the obligation of contracts. "The question is therefore presented," says the opinion, "whether in view of these facts the Legislature of a State can, by the charter of a lottery company, defeat the will of the people authoritatively expressed in relation to the further continuance of such business in their midst. We think it cannot. No Legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." But the case of the Fertilizing Company v. Hyde Park, 97 U. S. 659, is perhaps more directly in point as regards the facts of the case while asserting the same principle. The fertilizing company was chartered by the Illinois Legislature for the purpose of converting by chemical processes the dead animal matter of the slaughter-houses of the city of Chicago into a fertilizing material. Some ordinances of the village of Hyde Park, through which this dead matter was carried to their chemical works, were supposed to impair the rights of contract conferred by the charter. The opinion cites the language of the court in Beer Co. v. Massachusetts, already copied here, and numerous other cases of the exercise of the police power in protecting health and property, and holds that the charter conferred no irrepealable right for the fifty years of its duration to continue a practice injurious to the public health. These cases are all cited, and their views adopted in the opinion of the Supreme Court of Louisiana in a suit between the same parties in regard to the same matter as the present case, and which was brought to this court by writ of error and dismissed before a hearing by the present appellee. The result of these considerations is that the Constitution of 1879 and the ordinances of the city of New Orleans, which are complained of, are not void as impairing the obligation of complainant's contract, and that the decree of the Circuit Court must be reversed, and the case remanded to that court with directions to dismiss the bill. this decree was based. Even parol evidence is admissible when necessary to show what was tried in a suit, the record of which is offered in a subsequent action between the same parties. Campbell v. Rankin, 99 U. S. 261. But in order to sustain the exception to the exclusion of the pleadings in the case of Gallagher v. Basey, it was necessary that the exception should show what the excluded testimony was, in order that it might appear whether the evidence was material or not. Dunlap v. Monroe, 7 Cranch, 242, 270; Reed v. Gardner, 17 Wall. 409; Montville v. American Tract Society, 123 Mass. 129. If it appear that this exclusion did not prejudice the case of those offering the testimony, the decree subsequently passed will not be reversed for such an error. When a reservation is made in a deed, it is not necessary in order to give it effect that the grantor should, when he executes the deed, assert verbally his right to the property excepted from the conveyance. Evidence that he made no such assertion is clearly incompetent and inadmissible. We are of opinion therefore that neither of the grounds upon which appellants ask the reversal of the decree is well founded. Other exceptions were taken during the course of the jury trial, but no assignments of error are founded upon them. Upon an examination of the whole record, we are convinced that the decree of the District Court, which was affirmed by the Supreme Court of the Territory of Montana, was according to "the right of the cause and matter of law." Hornbuckle v. Stafford. Opinion by Woods, J. [Decided April 21, 1884.] REMOVAL OF CAUSE-TRIAL ON DEMURRER-NOT ALLOWABLE AFTER.-By the New York Code of Civil Procedure, issues are of two kinds: 1, of law; 2, of fact. Section 963. An issue of law arises only on a demurrer. Section 964. A demurrer to a complaint may be, among other things, because "the complaint does not state facts sufficient to constitute a cause of action." Section 488. Upon the decision of a demurrer, either at a General or Special Term, or in the Court of Appeals, the court may, in its discretion, allow the party in fault to plead anew or amend on such terms as may be just. Section 497. An issue of law in the Supreme Court must be tried at a term held by one judge. Section 976. At any time after the joinder of issue either party may serve a notice for trial. Section 977. A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action, is equivalent to a general demurrer to a declaration at common law, and raises an issue, which when tried will finally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. The trial of such an issue is the trial of the cause as a cause, and not the settlement of a mere matter of form in proceeding. There can be no other trial except at the discretion of the court, and if final judgment is entered on the demurrer, it will be a final determination of the rights of the parties which can be pleaded in bar to any other suit for the same cause of action. Under such circumstances, the trial of an issue raised by a demurrer which involves the merits of the action is, in our opinion, a trial of the action within the meaning of the act of March 3, 1875. To allow a removal after such a trial would be to permit "a party to experiment on his case in the State court, and if he met with unexpected difficulties, stop the proceedings, and take the suit to another tribunal." This as was said in Removal cases, 100 U. S. 473, could not have been the intention of Congress. In effect, when this case was heard on the demurrer, the issue made by the pleadings, and on which the rights of the parties depended, was submitted to the court for judicial determination. This issue the court decided, but before entering final judgment, granted a new trial, with leave to amend pleadings. The situation of the case at this time, for the purposes of removal, was precisely the same as it would be if the trial, instead of being on an issue of law involving the merits, had been on an issue of fact to the jury, and the court had, in its discretion, allowed a new trial after verdict. We can hardly believe it would be claimed that a removal could be had in the last case, and in our opinion, it cannot in the first. The case of Vannever v. Bryant, 21 Wall. 43, arose under the act of March 2, 1867, ch. 196. which allowed a removal at any time before the final hearing or trial of the suit," and what is there said is to be construed in connection with that fact. The same is true of Insurance Co. v. Dunn, 19 Wall. 214. In King v. Worthington, 104 U. S. 44, and Hewitt v. Phelps, 105 id. 395, the questions were as to the time when a case could be removed that was begun before the act of 1875 was passed. In Lewis v. Smythe, 2 Woods, 117, the question here presented was not involved, and the removal was decided to be too late because it was not applied for until after a trial on the issues of fact had begun. In Miller v. Tobin, 18 Fed. Rep. 609, the experienced District judge for the District of Oregon did hold that a removal, applied for after hearing upon a demurrer to a complaint, because it did not state facts sufficient to constitute a cause of action, could be had; but on full consideration, we are unable to reach that conclusion. Alley v. Nott. Opinion by Waite, C. J. [Decided April 21, 1884.] CORPORATION-TRUSTEES OF RAILROAD-RIGHT TO APPEAL--EXCESSIVE ALLOWANCE.--Where trustees and receivers of a railroad under a first mortgage sell it under contract that the purchasers will recompense them their expenses and services in caring for the road, the sale being made through agents of the purchasers, the agents being themselves bondholders, and interested in a second mortgage, these agents or brokers are quasi parties in the case, and have such an interest, and are so situated, that they have a right, by leave of the court, to except and object to charges and allowances presented by the trustees and receivers; and upon their objection being overruled, and an order made allowing the charges, they have the right to appeal, the order being final in its nature, and in a matter distinct from the general subject of litigation. We think that the position of Williams and Thomson made them quasi parties in the case, and brought them within the reason of the former cases decided by this court in which persons incidentally interested in some branch of a cause have been allowed to intervene for the purpose of protecting their interest, and even to come into this court, or to be brought here on appeal, when a final decision of their right or claim has been made by the court below. We refer to the cases of Blossom v. Milwaukee R. Co., 1 Wall. 655, where a purchaser at a foreclosure sale was admitted to appeal; Minnesota Co. v. St. Paul Co., 2 Wall. 634, to the same effect; Hinckley v. Gilman R. Co., 94 U. S. 467, where a receiver was allowed to appeal from a decree against him to pay a sum of money in the cause in which he was appointed receiver; Sage v. R. Co., 96 U. S. 712, where parties interested were allowed to appeal from an order confirming a sale; Trustees v. Greenough, 105 U. S. 527, where an appeal from an order for allowance of costs and expenses to a complainant suing on behalf of a trust fund, was sustained; and Hovey v. McDonald, 109 U. S. 150, where an appeal was allowed to be brought against a receiver from an order made in his favor. An allowance by a court to the receivers and trustees of a railroad for services and expenses in managing considered held and excessive. It was a matter of no moment to the bondholders what allowances were made, for they were to have bond for bond in any event; it was a matter of great moment to the purchasers, for every dollar allowed to the trustees was so much less for them. Swann v. Wright's Exrs., 110 U. S. 590. Williams v. Morgan. Opinion by Bradley, J. [Decided May 5, 1884.] MARYLAND COURT OF APPEALS ABSTRACT. OCTOBER TERM. 1883*. NEGLIGENCE -CROSSING RAILROAD TRACK-CONTRIBUTORY QUESTION FOR JURY.-(1) Where a person attempts to cross the track of a railroad at a point where no public crossing has been established, and where the individual, having no right to cross, takes upon himself the hazard of the attempt, the track itself is a warning of danger, and no other evidence of its existence is necessary. (2) But all persons have a right to use as a place of transit an established crossing; and in approaching such places it is incumbent on those having control of a train to observe proper care and caution, and a disregard for so plain and apparent a duty may render them obnoxious to the charge of the grossest negligence. (3) Notwithstanding the most culpable negligence on the part of the defendant, the plaintiff is not entitled to recover in the action if the evidence demonstrates that the infliction of the injury would have been impossible had the injured party observed due care and caution. In 39 Md. 449, it is said, that "cases may and sometimes do occur, in which the uncontradicted evidence proves such a glaring act of carelessness on the part of the plaintiff as to amount in law to contributory negligence, and in such it is the duty of the court, when requested, to decide the question without the intervention of the jury. But in no case ought the court to take the question of negligence from the jury unless the conduct of the plaintiff, relied on as amounting in law to contributory negligence, is established by clear and uncontradicted evidence." McMahon v. North. Cent. Railway Co., 39 Md. 449. See also Pittsburg, etc., R. Co. v. Andrews, 39 Md. 343; P. & R. R. Co. v. Killip, 88 Penn. St. 412; 29 Md. 38. Penn. R. Co. v. State. Opinion by Yellott, J. DAMAGES- - BREACH OF CONTRACT. By contract under seal, dated 13th, Nov., 1879, A. F. F. agreed to sell all the wood on his farms in Back River Neck to L. F., for seventy-five cents per cord standing, to mark out such grounds and on such farms as he wanted the wood cut from, and to give L. F. full coal privileges; and L. F. on his part agreed to take all kinds of wood that will do for charcoal, and to leave no wood standing at all that can be made into charcoal; to pay for it as soon as taken from the choppers, or as soon as it is corded and measured, and to receive and haul away from said farms all the wood as above specified, within two years from the date of this agreement. In an action of covenant brought by A. F. F. against L. F. for a breach of this contract, the court said, we must be governed by the rule recently approved by this court in Camden Consolidated Oil Co. v. Schlens & Co., 59 Md. 45; accordingly, held, (1) that the contract constituted a sale by the owner of the land, of the growing wood or timber upon it, at a certain sum per cord, the purchaser agreeing to cut and haul away all of it that was suitable for charcoal, and to pay the stipulated price therefor; the same to be done within two years. (2) That it did not follow because of the failure of the purchaser to cut down and carry away all such wood, or because he left some of the wood standing, that the land itself was thereby permanently injured or deteriorated in value. (3) *To appear in 61 Maryland Reports. 1 That if the plaintiff, immediately after default made, had proceeded as he might have done, to cut, haul and sell this wood in the market at the defendant's risk, he would have been entitled to recover the difference, if any, between what he would have realized from such sale, after deducting the cost of cutting and hauling, and the contract price. Masterton & Smith v. Mayor, etc., of Brooklyn, 7 Hill, 61; Eckeurode v. Chemical Co. of Canton, 55 Md. 51. (4) That having failed to do this, and the wood remaining standing on the land, he could only recover the difference in value of the wood thus left on the land, between the rate of seventy-five cents per cord, and its market value as it thus stood, and if it were of equal or greater value in the whole than seventy-five cents per cord, then he could recover no damages whatever on this account. (5) That as one of the inducements on the part of the plaintiff to enter into the contract, and one of the objects in the contemplation of both parties to it, was to have the land cleared for cultivation within two years, and a failure to clear it was to deprive the plaintiff of the use of it, for a time at least, as arable or tillable land, he was entitled for this deprivation, to such damages, if any, as the jury upon proper evidence should find he actually sustained thereby. (6) That damages on this account however could only be recovered for such reasonable time after the expiration of the two years as would have enabled the plaintiff to clear up his land by cutting and hauling away the wood thus left uncut by the defendant. Warren v Stoddard, 15 Otto, 224. Furstenburg v. Fawsett. Opinion by Miller, J. KANSAS SUPREME COURT ABSTRACT.* WATER-COURSE REMOVAL OF CAUSE DENIED DAMAGES FOR DIVERTING.-In an action against a railroad corporation to recover damages for the destruction of a field of rye by the diversion of a natural water-course, the corporation filed a petition for removal to the Federal court on the ground solely that it was a corporation organized under the act of Congress to aid in the construction of a railroad to the Pacific. Held, that the petition was properly denied. (2) The rule laid down in Palmer v. Waddell, 22 Kans. 352; and Gibbs v. Williams, 25 id. 214, as to what constitutes a natural water-course, reaffirmed. (3) Where a railroad company, by the digging of a ditch along its track, diverts the flow of a natural water-course, wholly or in part, to the injury of an adjoining landowner, it is no defense to an action to recover for such damages that the digging of the ditch was necessary for the protection of its track, or that the ditch was wholly on land owned by it in fee. Union Pacific R. Co. v. Dyche. Opinion by Brewer, J. NEGLIGENCE-OMISSION TO SOUND WHISTLE, ETC.WHEN IMMATERIAL INSTRUCTION TO JURY.-The omission to sound the whistle of an engine in accordauce with the provisions of § 60, ch. 23, Comp. Laws of 1879, is negligence. Railroad Co. v. Rice, 10 Kaus. 426; Railroad Co. v. Phillipi, 20 id. 12; Railroad Co. v. Wilson, 28 id. 639. But in an action to recover damages for stock injured on the crossing of a highway over the railroad track, if it appears by facts and circumstances proved that the injuries complained of were not caused by or attributable to such omission or neglect, the negligence is immaterial, and creates no liability against the railroad company for a recovery for damages to the stock upon the track. Railroad Co. v. McDaniel, 63 III. 122; Railroad Co. v. Blackburn, id. 167; Stoneman v. Railroad Co., 58 Mo. 503; Holman v. Railroad Co., 62 id. 562; Karle v. Railroad Co., 55 id. 483. An instruction to the jury that "if there was *To appear in 31 Kansas Reports. negligence on the part of both parties, and they find that the negligence of the plaintiff was only slight compared with that of the defendant, their verdict must be for the plaintiff," is erroneous. Railway Co. v. Peavey, 29 Kans. 169; Railway Co. v. Young, 19 id. 488; Railway Co. v. Pointer, 14 id. 37; Sawyer v. Sauer, supra. Atchison, Topeka, etc., R. Co. v. Morgan. Opinion by Horton, C. J. ATTACHMENT-OMISSION OF NAME OF PARTNER — LEVY NOT VITIATED. Where an action of attachment is brought in the name of a firm, and in the papers as originally filed the name of one of the partners is omitted, which omission is subsequently cured by amendment, the omission is not such a defect as vitiates the levy or can be taken advantage of by subsequent attaching creditors, or postpones the lien of the levy to that of such creditors. It was too slight a matter to affect or postpone the lien secured by the priority of levy. Stout v. Folger, 34 Iowa, 71; Ward v. Howard, 12 Ohio St. 158. Henderson v. Stetler. Opinion by Brewer, J. RECORD NOT COLLATERALLY IMPEACHABLE AGGREGATION OF FINES - HABEAS CORPUS. The records of a court import absolute verity; and where jurisdiction over the person is conceded, parol testimony is inadmissible in a collateral proceeding, to prove that what the record shows was done by the court was not in fact done. In re Watson, Petitioner, 30 Kans, 753. A justice of the peace has jurisdiction to try a misdemeanor case although several counts, each charging a separate of fense, are united in the same complaint, providing the offenses are all of the same general nature, and are each taken separately within the limits of his jurisdiction. In re Donnelly, 30 Kans. 191, 424. Where upon the trial of a complaint containing several counts the justice finds the defendant guilty on each count, and imposes a fine as to each count such as would be proper if the defendant had been tried upon that count separately, and no portion of the judgment has been satisfied, held, that although the aggregate of the fines exceeds five hundred dollars,a mittimus issued on such judgment and sentence is not void, and the defendant is not entitled to a discharge in habeas corpus. It is not pretended that any part of the sentence has been complied with, so that even upon the authorities most favorable to the petitioner, he is legally in custody. People v. Liscomb, 60 N. Y. 572; People v. Baker, 89 id. 467; People v. Wolf, 66 id. 10; Ex parte Van Hagan, 25 Ohio St. 426; People v. Shattock, 45 N. H. 211. Matter of Macke. Opinion by Brewer, J. PENNSYLVANIA SUPREME COURT ABSTRACT. BANKRUPTCY-DISCHARGE-NEW PROMISE TO PAYCONSIDERATION.-The effect of a discharge in bankruptcy is absolutely to extinguish a debt, and not merely to bar the remedy for its recovery. Hence the mere acknowledgment of a debt after a discharge in bankruptcy therefrom, however clear, distinct and unambiguous it may be in its terms, is not sufficient to restore the debt so that suit can be maintained thereon. Yoxtheimer v. Keyser, 11 Penn. St. 364; Canfield's Appeal, 1 Week. Notes, 67; Allen v. Ferguson, 9 Bank. Law Jour. 481. The promise to restore a debt from which the debtor had been discharged by proceedings in bankruptcy upon which suit can be brought must be a clear, distinct and unequivocal promise to pay the specific debt (not the expression of a mere intention to pay), and must be without qualification or condition. The moral obligation to pay, coupled with the fact of the pre-existing liability, is sufficient consideration for such a promise. A statement in the following terms, "We owe her the money, will pay it some day; can't say when," is a sufficient promise upon which to bring suit for a debt discharged by proceedings in bankruptcy. Where plaintiffs declare against a firm for a debt which has been discharged by proceedings in bankruptcy, and on the trial prove a sufficient promise by one partner subsequent to the discharge to pay the debt, the narr. may be so amended after vordict as to declare against that partner only. Bolton v. King. Opinion by Clark, J. [Decided July 16, 1884.] MINES AND MINING-LEASE OR SALE-TAXES.-(1) Where the surface of lands and minerals in place thereunder have been severed by the agreement of conveyauce of the owner, and the respective divisions have become vested in different owners, the municipal authorities are bound to levy their taxes according to the ownership and value of these divisions. And each owner can be made responsible only for the tax on his interest, whether underlying strata or surface. (2) A. made an agreement with B., leasing to him all the coal beneath the surface of a certain tract of land of which A. was the owner. The lessee was to mine aud remove in each year at least a certain number of tons, which he was to pay for monthly at a certain rate per ton, whether mined or not, unless mining should be prevented by certain specified contingencies. In case of neglect for thirty days to pay the said royalty, it might be distrained for. And for continued default the lease might be forfeited. The letting however was not for a term certain with reversion to the grantor, but without reversion and to be perpetual, until all the coal under the surface had been mined. And the rights and privileges therein conferred were extended to the heirs, executors, administrators and assigus of the respective parties. Held, that this agreement was not merely a license or lease to mine coal to become the lessee's when mined, but that it operated as such a severance of the surface and subjacent strata, and a sale or assignment of the coal in place as would relieve the owner of the surface from responsibility for taxes levied upon the coal. The language of this lease is in most respects similar to that referred to in the case of Scranton v. Phillips, 8 Week. Notes, 425, which was "of all the coal in and under said lot and other lands for and during the term and period of time as shall be required therefor to mine and remove all said coal." The further stipulations bear a close analogy to the contract now before us. In delivering the opinion of the court in Scranton v. Phillips the present chief justice says, although called a lease, it was virtually a sale of all the coal, with unlimited time to remove it, with the right at their election to yield it up after the expiration of ten years, etc. It is certainly true that a lease, properly so called, always conveys an interest in land, and in this respect it is to be distinguished from a mere license (11 Casey, 287), but where that which purports to be a lease conveys the interest of the lessor it differs in no respect from a sale. Palmer v. Edwards, 1 Doug. 187, note; 2 Black. Com. 317. (3) The liability of the owner of coal or mineral in place for taxes levied thereon, results from the nature of his estate or interest, and therefore he is not relieved from this responsibility, on the principle inclusio unius est exclusio alterius, by an express covenant in the instrument of severance that he shall pay all taxes levied upon the coal mined, with recourse to the lessor to refund the same. A mineral right is taxable as land; the owners of the surface and of the mine are each taxable, according to the value of their respective interests; where there is a divided ownership there must be a divided taxation. Logan v. Washington Co., 5 Casey, 373. The owner of surface land can no more be held for the tax upon the mineral strata, after a severance, than can the owner of the mine be held for the taxes upon the surface. Sanderson v. City of Scranton. Opinion by Clark, J. [Decided April 7, 1884.] VERMONT SUPREME COURT ABSTRACT.* LIMITATION-FROM WHAT TIME RUNS-KNOWLEDGE OF PROPERTY.-The defendant without leave took the plaintiff's iron; in the following year he promised to pay for it. Held, that the statute of limitations commenced to run at the time of the promise. Before the statute had run on the promise, the defendant left the State, leaving attachable property here; but the plaintiff had no actual knowledge of it; and there was no lack of reasonable diligence in not finding it. Held, that the claim was not barred. It was not necessary that the plaintiff should have had actual knowledge of the property and the defendant's title to it, Tucker v. Wells, 12 Vt. 240; but the defendant's ownership of it must have been notorious to such an extent that the plaintiff would have found it by reasonable search and inquiry. Wheeler v. Brewer, 20 Vt. 113. Farnham v. Thomas. Opinion by Taft, J. PARTNERSHIP-PROMISE BY ONE PARTNER-RATIFICATION.-One member of the defendant firm promised to pay the debt due to the plaintiff from a certain marble company. The firm owned one-fourth of the stock of the company,controlled its financial operations until it became hopelessly involved; and the consideration of the promise was forbearance to attach its property, The partner making the promise managed the business of his firm; all his operations and negotiations indicated a purpose to absorb and get title to the property of the marble company; and this purpose was accomplished. It did not appear but that the transactions were within the scope of the partnership. Held, that a receipt of the benefit in obtaining title to and possession of the property by the firm was a ratification of all acts done in obtaining it; and that such a ratification was equivalent to antecedent authority from the firm. Lynch v. Flint. Opinion by Ross, J. HIGHWAY-WHEN TOWN NOT BOUND TO KEEP IN REPAIR-ADOPTION-EVIDENCE.-The use of a road for public travel however extensive that use may be, is not sufficient to constitute such road a highway by adoption so as to impose the duty upon the town to keep it in repair. There must be in addition evidence of some act of the town recognizing it as a highwayas putting the same in the rate bills of the highway surveyor, expending money thereon, shutting up the old road, leaving no other avenue for travel, etc.; hence the plaintiff failed to prove that the highway upon which the accident happened was one that the town was legally bound to keep in repair, by proving that the road was used, that it was the direct thoroughfare from one street to another, that there were sidewalks upon both sides of it, and a lamp post on one corner; and although the defendant did not object to the admission of this evidence, it did not thereby waive its right to claim legal proof that it was bound to keep the highway in repair. In Blodgett v. Royalton, 14 Vt. 288, it was held that the consent merely of the selectmen that any person should travel on any path whether a public or private road was no act recognizing such road as a highway for which the town was responsible; and that their knowledge that a traveller supposed it to be a public highway was of no importance, unless by some act of theirs it could be inferred that they had opened the road or adopted it * To appear in 56 Vermont Reports. |