(chap. 17, art. 4, § 1557), in regard to allowances for improvements on land to purchasers in good faith, until they were served with process on the supplemental bill. (7) The meaning of the words "good faith" in the statute, and as applicable to this case, defined. Cole v. Johnson, 53 Miss. 94; Green v. Biddle, 8 Wheat. 1, 79. (8) The amount allowed by the Circuit Court, for improvements, upheld as proper, under the special circumstances. The present case has an analogy to that of a purchaser at a foreclosure sale, who makes valuable improvements in the belief that he has acquired an absolute title. He is entitled to be paid for them if the premises are redeemed. 2 Jones on Mortgages, $428. Where a party lawfully in possession under a defective title makes permanent improvements, if relief is asked in equity by the true owner, he will be compelled to allow for such improvements. 2 Story Eq. Jur., § 1237, note 1; Bright v. Boyd, 1 Story, 478; 2 id. 605; Putnam v. Ritchie, 6 Paige, 390; Williams v. Gibbes, 20 How. 538. Canal Bank v. Hudson. Opinion by Blatchford, J. [Decided March 24, 1884.] INSURANCE-LIFE-ELECTION AS TO POLICIES-SURRENDER- - ASSIGNMENT BY COMPANY-FUND DEPOSITED WITH TREASURER POLICY-HOLDER NOT BOUND ESTOPPEL LESSEE DENYING LESSOR'S TITLE — ACT OF MARCH 3, 1877 - COMMISSIONERS' CONSTRUCTION OF LAW REVIEWABLE - TRUSTEE.- Lessees and their assignees, having knowledge of a lease under a claimant or occupant, and holding the property for him, are bound by a stipulation to surrender it on the termination of the lease, and are estopped from claiming a right paramount and adverse to his, their possession being his possession. Blight's Lessees v. Rochester, 7 Wheat. 533. (2) Under the provision of the act of March 3, 1877, in relation to the tract of land known as the Hot Springs Mountain, the action of the commissioners therein provided for is final, on matters depending upon conflicting evidence as to the extent of occupation and the value of improvements; but upon the construction of law, and as to the equities of third persons arising from contracts or fiduciary relations between them and the person to whom the commissioners may adjudge the right to purchase, their action may be reviewed and corrected by the courts. This question was very fully and thoughtfully considered in Johnson v. Towsely, reported in 13 Wallace. In that case the direct question was as to the effect to be given to the tenth section of the act of June 12, 1858, which declared that appeals in cases of contest between different settlers for the right of pre-emption should thereafter be decided by the commissioner of the general land office, "whose decision shall be final unless appeal therefrom be taken to the secretary of the Interior." It was held that the finality there de BY - DAMAGES.-(1) The holder of a policy of life insurance, who is entitled, in case of default in payment of his premiums, to exchange his policy for a paid-up policy instead of forfeiting it, is at liberty to elect at any time to consider himself in default, and to declared had reference only to the supervisory action of mand a paid-up policy. (2) Where a policy-holder was entitled in case of default to have his policy commuted to a paid-up policy for the amount of premiums actually paid, but both he and the agent of the company supposed him entitled to a paid-up policy of such amount as the premiums paid would have purchased had they been paid all at once for that purpose, and the insured surrendered his policy to the agent upon that understanding, held, that the company was bound to return the policy unchanged, if so required, and had no right to alter it to a paid-up policy for the sum to which he was in fact entitled. (3) Where an insolvent insurance company transfers its assets, under order of court, to another company, the holder of a policy cannot be required to continue his insurance with the assignee, but may treat the assignment as a rescission of the contract with the assignor, and recover from it whatever is justly due. Of this we think there can be no doubt. Where one party to an executory contract prevents the performance of it, or puts it out of his own power to perform it, the other party may regard it as terminated and demand whatever damage he has sustained thereby. We had occasion to examine this subject in the recent case of United States v. Behau, 4 Sup. Ct. Rep. 81, to which we refer. (4) The measure of damages in such a case is not the amount of the premiums actually paid, but only the value of the policy at the time of its surrender. (5) An assignment by an insolvent insurance company to a company in another State does not carry a fund deposited with the treasurer of the State where the assignor was organized to secure citizens of that State from loss. Such a fund remains subject to attachment by citizens of the State in suits against the company. To this fund the complainant, being a citizen of Tennessee, had a right to resort. The object of the laws of Tennessee in requiring the fund to be placed on deposit with the treasurer was to protect and indemnify its own citizens in their dealings with the company. The assignment to the new company in Missouri did not deprive them of the right to this indemnity. Lovell v. Insurance Co. Opinion by Bradley, J. [Decided April 7, 1884.] the land department; that after the title had passed from ths government, and the question had become one of private right, the jurisdictiou of courts of equity might be invoked to ascertain if the patentees did not hold in trust for other parties; and if it appeared that the party claiming the equity had established his right to the land upon a true construction of the acts of Congress, and by an erroneous construction the patent had been issued to another, the court would correct the mistake. This case is a leading one in this branch of the law and has been uniformly followed. The decision aptly expresses the settled doctrine of this court with reference to the action of officers of the land department, that when the legal title has passed from the United States to any party, when in equity, and in good conscience, and by the laws of Congress, it ought to go to another, a court of equity will convert the holder into a trustee of the true owner, and compel him to convey the legal title. This doctrine extends to the action of all officers having charge of proceedings for the alienation of any portion of the public domain. The parties actually entitled under the law cannot, because of its misconstruction by those officers, be deprived of their rights. Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 id. 530; Quinby v. Conlan, 104 id. 420; Smelting Company v. Kemp, id. 636. Rector v. Gibbon et al. Opinion by Field, J. [Decided April 7, 1884.] UNITED STATES CIRCUIT COURT AB- REMOVAL OF CAUSE BY ASSIGNEE.- Though the assignee of a chose in action caunot sue originally in the Federal courts unless his assignor could have done so, he can accomplish the same result by bringing his action in the State court and removing it thence to the Federal court. Berger v. Com'rs, 2 McCrary, 483; 5 Fed. Rep. 23; Miller v. C. B. & Q. R. Co., 3 McCrary, 460; 17 Fed. Rep. 97; City of Lexington v. Butler, 14 *19 Fed. Rep. Wall. 282; Bushnell v. Kennedy, 9 id. 387. Cir. Ct., of business, and to associate others with him in such use, is not assignable. Rubber Co. v. Goodyear, 9 Wall. 788; Troy Fact. v. Corning, 14 How. 193; Searis v. Bouton, 12 Fed. Rep. 140. Cir. Ct. N. D. New York, Feb. 1, 1884. Gibbs v. Hoefner. Opinion by Coxe, J. NEW JERSEY SUPREME COURT ABSTRACT.* DAMAGES-LIQUIDATED OR PENALTY (1) It is a general rule of construction, that the sum agreed upon by the parties to a contract, to be paid for breach of covenant by the non-performing party to the other, will be treated as a penalty, unless it is payable for an injury of uncertain amount and extent; or if payable for more than one breach, unless the damages which arise from each of them are of uncertain amount. (2) Where a contract contains several stipulations, and the damages resulting from not complying with part of them are capable of being measured, the sum fixed upon will be treated as a penalty. 1 Ad. on Cont., § 496; Astley v. Wilson, 2 B. & P. 346, 353; Tayloe v. Sandiford, 7 Wheat. 13; 2 Pars. on Cont. (4th ed.) 438. (3) The sum named cannet be regarded as a penalty as to part of the provisions of the contract, and as liquidated damages as to the other part; if it be not liquidated damages as to one of the covenants, it cannot be so as to the others. Whitfield v. Levy, 6 Vroom, 149, 156. (4) The intention of the parties is to be derived from the whole contract; and whenever it be doubtful whether the sum named is intended by the parties as penalty or as liquidated damages, it will be construed as a penalty. Cheddick's Ex'r v. Marsh, 1 Zab. 463; Crisdee v. Bolton, 3 C. & P. 240. Lansing v. Dodd. Opinion by Parker, J. [See 29 Alb. L. J. 373; 21 Eng. R. 685.- ED.] INJUNCTION REFUSED TO RESTRAIN EXERCISE OF MUNICIPAL POWERS ADEQUATE REMEDY AT LAW.Courts of equity often interdict the unlawful exercise by municipal corporations of their powers; and possibly, cases of such peculiar hardship from the enforcement of a void ordinance in restraint of trade might arise, that a court of equity would feel moved to interpose by injunction, even before its illegality had been established at law. But such cases would be exceptional. Dill. Mun. Corp., § 727; Ewing v. City of St. Louis, 5 Wall. 413; High, Inj., §§ 1242, 1244. The ordinary remedy for an injury from the operation of an unlawful municipal ordinance is by an action at law, for complete redress in damages is generally thus attainable. (2) A borough ordinance forbids any person to convey or have, etc., within the borough limits, any nitro-glycerine, (except enough to "shoot" any oil well within the borough, and this upon payment of a license fee), under a penalty of not less than $50, nor more than $100, for each offense, upon conviction before the burgess or a justice of the peace. Plaintiff's works for the manufacture of nitro-glycerine are nine miles from the borough, and a magazine for its storage is one mile from the borough, on the opposite side. Plaintiff's employees conveying nitro-glycerine from its works to the magazine along public highways, through the borough limits, were arrested and fined, but these judicial proceedings were removed into the proper county court, and are there pending. The plaintiff, alleging that the ordinance is unreasonable, unauthorized and void, and injurious to its business, filed a bill in equity against the borough to restrain the enforcement thereof, etc. Held, that the case was not one for equitable relief, and on this ground, a preliminary injunction refused. The case of Butler's Appeal, 73 Penn. St.448, is not an authority, it seems to me, for the proposition that an injunction is a proper remedy for the injury of which the plaintiff complains. That was a case of a clearly illegal exercise by city councils of the taxing power. I have been referred to no precedent, nor have I been able to find any, where a court of equity in such a case as the present has granted the relief the plaintiff seeks. But in several analogous cases such redress has been denied, and the aggrieved party turned over to his legal remedies. Burnett v. Craig, 30 Ala. 135; Gaertner v. City of Fon du Lac, 34 Wis. 497; Cohen v. Goldsboro, 77 N. C. 2; Brown v. Catlettsburg, 11 Bush, 435. Here the plaintiff's legal remedies are, I think, ample. One of these has already been invoked; for by certiorari or appeal the proceedings against the plaintiff's I employees for violation of the ordinance have been removed into the proper State court, and are there pending. It does not appear to me that the plaintiff is likely to sustain any injury which may not be fully and adequately compensated by an action for damages, should it be adjudged that the ordinance is invalid. Cir. Ct. W. D. Penn., Jan'y 21, 1884. Torpedo Co. v. Borough of Clarendon. Opinion by Acheson, J. UTILITY PATENT (1) A patent will not be declared void for inutility if it possesses any utility whatever, even the slightest. Lowell v. Lewis, 1 Mason, 183, 186: Earle v. Sawyer, 4 id. 1, 6; Seymour v. Osborne, 11 Wall. 516, 549; Wilbur v. Beecher, 2 Blatchf. 132, 137; Lehnbeuter v. Holthaus, 105 U. S. 94; Bell v. Daniels, 1 Fisher, 375; Shaw v. Lead Co., 11 Fed. Rep. 711; Wheeler v. Reaper Co., 10 Blatchf. 189; Vance v. Campbell, 1 Fisher, 485; Sim. Pat. 92, 93; Walk. Pat. 52, 53. (2) A license to use a patented process at the licensee's place - LICENSE NOT ASSIGNABLE. CONSTITUTIONAL LAW — POWER OF LEGISLATURE — TITLE OF ACT. (1) The Legislature, in a grant of powers to municipal governments, may include in one act provisions for licensing hacks, and also power to license, regulate and prohibit the manufacture or sale of liquor, if the title prefixed to the act be so framed as to comply with the constitutional requirement, State v. Town of Union, 4 Vroom, 351; Payne v. Mahon, 15 id. 213; People v. Briggs, 50 N. Y. 553. (2) The Legislature may make the title of an act as restrictive as it pleases, and may so frame the title as to preclude many matters being included in the act which otherwise might have been included in one act. The Constitution has made the title the conclusive index to the legislative intent; and it is no answer to say that the title might have been made more comprehensive, if the legislature have not seen fit to make it so. Cooley on Const. Lim. 149, 179. The precedents in this State are in accordance with this view. Rader v. Township of Union, 10 Vroom, 509-512; Evernham v. Hulit, 45 N. J. 53. In each of these cases an act of the legislature which contained subjects the legislature might have embraced in one act was held to be unconstitutional as to one subject, because the title of the act was so framed as not to embrace it. No particular form has been framed for the expression of the legis lative purpose in the title of an act. As was said by Mr. Justice Miller, "the constitutional provision referred to does not require that the title should be exact and precise in all respects; it is a sufficient compliance with its terms if this is done fairly and in such a manner as to convey to the mind an indication of the subject to which it relates. Matter of App. of Dept. of Public Parks, 86 N. Y. 437-440; In re Ferdinand Mayer, 50 id. 504; Cooley on Const. Lim., 144, 173. But the court must see that the language used in the title, *To appear in 45 N. J. L. (16 Vroom). on a fair construction, indicates the purpose of the Legislature to legislate on the subjects contained in the body of the act, so that making every reasonable intendment in favor of the legislative act, it may reasonably be said that the object of the law is expressed in its title. Town of Fiskill v. Fishkill, 22 Barb. 634; Contieri v. Mayor of New Brunswick, 15 Vroom, 58. (3) In an act entitled "An act to provide for licensing boats, hacks and other vehicles by incorporated campmeeting associations or seaside resorts, and for the better government of the same," the Legislature cannot include provisions authorizing the licensing, regulating or prohibiting of the manufacture or sale of liquor, such a subject not being within the legislative purpose as expressed in the title of the act. Grover v. Trustees of Ocean Grove Camp-Meeting Asso. Opinion by Depue, J. STATUTE OF FRAUDS-TELEGRAM-PAROL EVIDENCE. - Where in an action for an alleged breach of a written con tract of sale made by telegraph, the telegrams fail to show what the property contracted for is, what the price to be paid for it is, and to whom it is sold, they are insufficient to establish a written contract, and to take the case out of the statute of frauds; nor can verbal testimony be admitted to supply the defects or omissions therein. Watt v. Wisconsin Cranberry Co. Opinion by Adams, J. [Decided April 10, 1884.] MALICIOUS PROSECUTION-WHEN ACTION DOES NOT LIE FOR BRINGING CIVIL SUIT.-We think the doctrine is well established by the great preponderance of authority that no action will lie for the institution and prosecution of a civil action with malice and without probable cause, when there has been no arrest of the person or seizure of the property of defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action. See 1 Am. Lead. Cas. 218, note to Munns v. Dupont, and cases there cited; Mey er v. Walter, 64 Penn St. 289; Kramer v. Stock, 10 Watts, 115; Bitz v. Meyer, 11 Vroom, 252; S. C., 29 Am. Rep. 233; Eberly v. Rupp, 90 Penn. St. 259: Gorton v. Brown, 27 Ill. 489; Woodmansie v. Logan, 2 N. J. L. 93 (1 Pen.); Parker's Adm'rs V. Frambes, id. 156; Potts v. Imlay, 4 N. J. L. 330 (1 Suth.) This doctrine is supported by the following consideration: The courts are open and free to all who have grievances and seek remedies therefor, and there should be no restraint upon a suitor, through fear of liability resulting from failure in his action, which would keep him from the courts. He ought not, in ordinary cases, to be subject to a suit for bringing an action, and be required to defend against the charge of malice and the want of probable cause. If an action may be maintained against a plaintiff for the malicious prosecution of a suit without probable cause, why should not a right of action accrue against a defendant who defends without probable cause and with malice? The doctrine surely tends to discourage vexatious litigation, rather than to promote it. It will be observed that the statement of the doctrine we have made extends it no further than to cases prosecuted in the usual manner where defendants suffer no special damages or grievance other than is induced by all defendants in suits brought upon like causes of action. If the bringing of the action operates to disturb the peace, to impose care and expense, or even to cast discredit and suspicion upon the defendant, the same results follow all actions of like character, whether they be meritorious, or prosecuted maliciously and without probable cause. They are incidents of litigation. But if an action is so prosecuted as to entail unusual hardship upon the defendant, and subject him to special loss of property or of reputation, he ought to be compensated. So if his property be seized, or if he be subjected to arrest by an action maliciously prosecuted, the law secures to him a remedy. In the case at bar the pleading and evidence show no such special damages. No action could be prosecuted to recover money fraudulently obtained, in which the defendant would not suffer the very things for which plaintiff in this case seeks compensation in damages. Wetmore v. Mellinger. Opinion by Beck, J. [This is in harmony with Muldoon v. Rickey (Penn.), 29 Alb. L. J. 457.ED.] [Decided April 9, 1884.] PARTNERSHIP-INFERREDSTATUTE OF FRAUDS LIMITATION RUNS FROM DISSOLUTION.-(1) Where parties have contracted to engage in the venture of buying lands, which are to be held in trust for both of them, and they are to have equal interests and shares in the common speculation, the fact that there is no agreement that both shall be respectively liable for the losses does not prevent the contract from constituting a partnership. The liability may be inferred from the intent of the parties or their acts, or from the circumstances that attend the contract. Parsons' Partner ship. 57, 60; Miller v. Hughes, 1 A. K. Marsh. 181. (2) A contract to enter into a partnership, for the purpose of speculating in lands, is not within the statute of frauds, and need not be in writing. This question has been much discussed by the courts, and it is not to be denied that there are adjudged cases which hold that such a contract is within the statute of frauds. See Smith v. Burnham, 3 Sumn. 435. On the other hand, there are many cases which hold that a parol contract of partnership is not within the statute. Dale v. Hamilton, 5 Hare, 369; Essex v. Essex, 20 Beav. 449; Bunnel v. Taintor, 4 Conn. 273; Chester v. Dickerson, 54 N. Y. 1; Holmes v. McCrary, 51 Ind. 358. (3) The relation of the parties being a partnership, the statute of limitations does not begin to run until the dissolution thereof, or until a sufficient time has elapsed after a demand for an accounting and settlement. Richards v. Grinnell. Opinion by Rothrock, C. J. [Decided March 9, 1884.] ANIMALS-TRESPASSING ON RAILROAD-COMPANY NOT LIABLE FOR INJURY. --Where animals, which are aliowed to run at large in violation of a city ordinance, stray upon a railroad track, they become trespassers, and the company is not answerable for injuries inflicted upon them by any negligence of its servants, not amounting to wanton or reckless misconduct. The rule as to injury to trespassing animals which become exposed by the trespass, and through the owner's fault, appears to us to be well settled. In Maynard v. Boston & M. R. Co., 15 Mass. 458, a recovery was sought for an injury to the plaintiff's horse, sustained while trespassing upon defendant's track. The trial court took substantially the same view of the law that the court below did in the case at bar. It refused to instruct, as asked, that "the defendants would not be liable unless the plaintiff proved a wanton and reckless misconduct of their employees in the manage See, ment of the train when the horse was killed." It was held that this instruction should have been given. Gray, C. J., said: "If the horse had been rightfully upon the defendant's land it would have been their duty to use reasonable care to avoid injuring him. But it being admitted by the plaintiff that the horse was trespassing upon the railroad, they did not owe him that duty, and were not liable to him for anything short of reckless and wanton misconduct.' also, Tonawanda R. Co. v. Munger, 5 Denio, 255; S. C., 4 N. Y. 349; Vandegrift v. Rediker, 2 Zab. 185; Railroad Co. v. Skinner, 19 Penn. St. 298; Tower v. Providence & W. R. Co., 2 R. I. 404; Cincinnati, H. & D. R. Co. v. Waterson, 4 Ohio St. 424; Louisville & Frankfort R. Co. v. Ballard, 2 Metc. (Ky.) 177; Vance v. Cayuga, etc., R. Co., 26 N. Y. 428; Bowman v. Troy & B. R. Co., 37 Barb. 516; Terry v. N. Y. C. R. Co., 22 id. 574; Bush v. Brainard, 1 Cow. 78. Tan Horn v. Burlington, etc., R. R. Co. Opinion by Adams, J. [Decided March 19, 1884.] CHANGING GRADE LI MUNICIPAL CORPORATION ABILITY JUDGMENT BAR. Where the grade of a street has been lowered from curb to curb in such a manner that a corresponding change in the level of the sidewalk must inevitably follow, an entire cause of action arises at once in favor of the abutting owners for the full amount of the damage; and recovery of judgment for the alteration of the grade of the driveway is a bar to any further action on account of the grading of the sidewalk. Hempstead v. City of Des Moines. Opinion by Rothrock, C. J. [Decided March 19, 1884.] PENNSYLVANIA SUPREME COURT ABSTRACT. ARBITRATION AND AWARD – DUTY OF ARBITER EFFECT OF AWARD UNCERTAINTY.- (1) Where a contract contains a submission to a designated person as a common arbiter of "all and every question of difference between them, growing out of the contract," the non-performance of the contract by one of the parties constitutes a cause within the jurisdiction of the arbiter. (2) Such a submission is a binding one on the parties, and it includes questions of law as well as of fact; the arbiter, though not learned in the law, may pass upon the construction of the contract; and where it is a material question whether a clause therein providing that ten per cent of the contract price shall be retained by one of the parties upon certain contingencies is to be treated as a penalty or as liquidated damages, he must decide that question. (3) When the arbiter does not so decide, but awards one sum upon one construction of said clause, and another sum if another construction "should properly be held," the award is bad as uncertain and indefinite, and as driving the parties to a different tribunal for the settlement of differences which they had contracted should be finally determined in one of their own choosing. Gratz v. Gratz, 4 Rawle, 438; Etnier v. Shope, 7 Wr. 110; Stanley v. Southwood, 45 Penn. St. 189. Connor v. Simpson. Opinion by Green, J. [Decided Oct., 1883.] CONTRACT -WHEN NOT BINDING UNTIL REDUCED TO WRITING.-A., who was a Roman Catholic priest, entered into negotiations with B. and C., organ builders, for the construction of an organ for his church. The preliminaries of the contract were apparently agreed upon after several interviews. At the outset, defendant asked for a written agreement, and throughout the interviews constantly insisted upon it. At one of the interviews the defendant authorized the plaintiffs to go on with the building of the organ, and at the same time demanded a written agreement. None of the agreements were satisfactory to the defendant, each containing something he alleged he had not agreed to, and finally he broke off further attempts at an agreement. B. and C. thereupon bronght suit for breach of contract. Held, by a divided court (affirming the judgment of the court below), that there was no binding contract between the parties, it being the clear intention of the defendant that he should not be bound until all the terms of the contract were reduced to writing and signed by the parties, and that the defendant was not liable for work done on the expectation or hope on the part of the plaintiff that such an agreement would be consummated. MacMackin v. Timmins. Opinion per Curiam. [See 20 Eng. R. 200; 22 id. 393; 25 id. 131, 572; 30 id. 839.- ED.] [Decided Feb. 25, 1884.] CONSTITUTIONAL LAW - FEES OF OFFICER - CANNOT INCREASE OR DIMINISH.- Where it is the official duty of a sheriff to board the prisoners in the county jail, the sum secured to him by law as compensation for this service is an "emolument" within the meaning of the Constitution of Pennsylvania, article 3, section 13, which cannot be increased or diminished during his term of office. Where at the beginning of a sheriff's term of office his compensation for boarding prisoners in the county jail is fixed by law at a certain rate per diem, the law cannot be so altered during the sheriff's term of office as to make his compensation for said service rest in the discretion of a majority of the judges of the Court of Quarter Sessions. Apple v. County of Crawford. Opinion by Green, J. [Decided Feb. 18, 1884.] FRAUD IF MUTUAL, GOOD CONSIDERATION-COURT WILL NOT RELIEVE FROM.-- Where an insolvent debtor in fraud of his 'creditors assigus his property to a third person, taking from him judgment notes for the value thereof, and subsequently assigns one of said judgment notes as collateral security to a creditor (bank) who has knowledge of the fraud, the maker of such note cannot set up the fraud as a defense in an action brought against him by the creditor thereon. The mutual fraud of the parties constituted sufficient consideration in the above case for the note in suit. It is settled by numerous authorities, that there is no more binding consideration known to the law than the mutual fraud of the parties. The books are full of cases where a party to the fraud has sought relief in the courts from the consequences of his unlawful act, but the decisions have been uniformly adverse to such applications. It is not the province of the law to help a rogue out of his toils. The rule is to leave the parties where it finds them, giving no relief and no countenance to contracts made in violation of statutes. Hershey v. Weiting, 14 Wright, 240; Evans v. Dravo, 12 Harris, 62. It follows that the defendant would have no defense to this note as against the obligee or payee. The learned judge of the court below, however, was of opinion, and so instructed the jury, that if the bank had knowledge of the fraud and afterward took the note, it became a party to the fraud and could not recover. The fallacy of this ruling is obvious. The note is good as between the parties, for the reason that the maker cannot set up his fraud as a defense. If he cannot set it up against the payee, neither can he set it up against the bank, and the inquiry whether the bank had knowledge of the fraud was wholly irrelevant. Winton v. Freeman. Opinion by Paxson, J. [Decided March 26, 1883.] ILLINOIS SUPREME COURT ABSTRACT.* JUNE TERM, 1883. EVIDENCE-INTENT-CONTRACT FOR FUTURE DELIVERY. In an action to recover the price of wheat bought by the plaintiff, as factor, for the defendant, for future delivery, where the defense was that the transaction was a gambling contract, no delivery being intended, but only an adjustment of differences in price, it was held error to refuse to let the defendant testify as to conversations had by him with the plaintiff before the orders for the purchases were actually given, as throwing light upon the nature of the contract. These surrounding circumstances constituting part of the res gesta may always be shown to the jury along with the principal part. 1 Greenf. Ev., § 108. It is not alone the last words spoken or written that in all cases give character to a transaction. A promissory note containing usurious interest, or made upon a fraudulent consideration, or for a gambling debt, may be explained, or even contradicted, by showing previous facts out of which it grew. Hewitt v. Dement, 57 Ill. 500; 1 Greenl. Ev., § 284, and note. Why then may not a verbal contract, alleged to be a gambling contract, be explained by facts, circumstances or conversations, which shed light upon the meaning of its words? It is in such case proper to ascertain such intrinsic facts as the parties may have had in view at the time the order for the contract was made in order to obtain the meaning of its words. Doyle v. Teas, 4 Scam. 202. Brand v. Henderson. Opinion by Dickey, J. JUDGMENT APPEAL FROM, OPERATES AS STAYLIEN NOT DIVESTED.-An appeal from a judgment of the Circuit Court to the Supreme Court does not vacate the judgment, or destroy its lien on real estate or its capacity to become a lien on land acquired pending the appeal. Its only effect is to operate as a stay of proceedings to enforce the judgment. Oakes v. Williams. Opinion by Walker J. [See 2 Eng. Rep. 124. -ED.] EMINENT DOMAIN--EXCESSIVE DAMAGES-PROCEEDING TO CONDEMN RIGHT OF WAY-PRESUMPTION.-On an assessment of damages for right of way, where the jury, at the request of both parties, view the premises, and no other evidence is offered, every presumption will be indulged in favor of the correctness of the verdict. In such case in cannot be known the damages assessed are excessive, as it cannot be known what the jury saw. Peoria, etc., v. Barnum. Opinion by Scott, J. TAXATION-HOW LIEN FOR TAXES ENFORCED.-The lien given by law upon land for taxes due thereon, whatever its force and scope may be, can not be enforced in an ordinary action at law by the county or State against the tax debtor. That can only be done by bill in chancery under the statute. Biggins v. People, 106 Ill. 270. Douthett v. Winter. Opinion by Scott, J. RECEIVER-FOREIGN-POWERS CONFINED TO JURIS DICTION APPOINTING-CREDITORS CANNOT INTERFERE WITH POSSESSION. (1) Where a receiver takes possession of a barge within the jurisdiction of the court appointing him, as the property of the insolvent debtor, he becomes invested with a special property in it, like that of a sheriff on a valid levy, and he may protect this special property while it continues, by action, in like manner as if he were the absolute owner. Cantwell v. Sewell, 5 Hurl. & N. 728; Clark v. Connecticut Peat Co., 35 Conn. 303; Taylor v. Boardman, 25 Vt. 581; Crapo v. Kelly, 16 Wall. 610; Waters v. Barton, 1 Cold. (Tenn.) 450; Boyle v. Tonnes, 9 Leigh, 158; *To appear in 107 Illinois Reports. Singerly v. Fox, 75 Penn. St. 114. (2) The powers of a receiver are coextensive only with the jurisdiction of the court appointing him, and a foreign receiver will not be permitted, as against the claims of creditors resident in this State, to remove from this State the assets of the debtor, it being the policy of every government to retain in its own hands the property of the debtor until all domestic claims against it have been satisfied. (3) But where a receiver has once obtained rightful possession of personal property situate within the jurisdiction of his appointment, which he was appointed to take charge of, he will not be deprived of its possession though he takes it, in the performance of his duty, into a foreign jurisdiction. While there it cannot be taken from his possession by creditors of the insolvent debtor who reside within such jurisdiction. Pond v. Cooke, 45 Conn. 126; Cagill v. Wooldridge, 8 Baxter, 580; Kilmer v. Hobart, 58 How. Pr. 452. Chicago v. Packet Co. Opinion by Sheldon, C. J. RAILROAD -FRANCHISE NOT EXCLUSIVE OTHER ROADS MAY CROSS OR RUN PARALLEL.-The mere grant of the right to build a railroad between given termini creates no implied obligation by the State to not thereafter grant the right to build other railroads parallel with it between the same termini. Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420; Hudson and Delaware Canal Co. v. New York and Erie R. Co., 9 Paige, 323; Illinois and Michigan Canal v. Chicago & R. I. R. Co., 14 Ill. 314. Nor does it imply an obligation on behalf of the State that other railroads, with their tracks and switches, shall not thereafter be granted the right to cross the State in a different direction, and thus pass over its tracks and switches. cago & Alton R. Co. v. Joliet, Lockport and Aurora Ry. Co., 105 Ill. 388. The public welfare especially requires that the business of carrying shall be open to competition as far as possible, and no monopoly in that regard, however limited the sphere of its operation, can be presumed to have been intended by the Legislature in the enactment of the general law for the formation of railroad corporations. Lake Shore v. Chicago, 97 Ill. 506; Central City v. Fort Clark, 81 id. 253, distinguished. Connecting Railroad v. Union, etc. Opinion by Scholfield, J. Chi WISCONSIN SUPREME COURT ABSTRACT. CONTRACT-PAYMENT OF MONEY TO THIRD PARTY.Where, at the time of borrowing money, it is agreed between the parties that the borrower should pay it to a third party, to be by him delivered to the lender, and it is paid to such party as agreed, the borrower is discharged from further liability. Fiske v. Fisher, 100 Mass. 97; Osborn v. Baird, 45 Wis. 189. Where an instruction asked for covers a point material to the issue, and there is some evidence tending to support it, the party requesting it is entitled to have it given. Whether the facts stated therein are true or not is a question for the jury, not for the court. Campbell v. Campbell, 54 Wis. 98; 11 N. W. Rep. 456. Sailer v. Barnbusky. Opinion by Cassoday, J. [Decided March, 1884.] JOINT PARTIES-TORT-FEASORS-DISCHARGE OF ONE. -The discharge of one of two tort-feasors, against whom separate actions have been brought, does not discharge the other unless the satisfaction accepted by the plaintiff was intended by him to extend to the entire injury. Ellis v. Eason, 50 Wis. 138. Pogel v Meilke. Opinion by Cole, C. J. [Decided April 8, 1884.] |