No. 1. The Vendor's Lien-Criticism of the No. 2. Substituted Service-The Jurisdictional Effect of Service on the Person in Another State. By James L. Hopkins, 33. No. 3. Evidence-The Admission of Testimony from a Former Trial when the Witness is Absent. By George Kroncke, 52. No. 4. Railway Fires. By Seymour D. Thomp- No. 5. Blackmail. By Samuel Maxwell, 94. No. 6. Unofficial Entries by Third Persons. By No. 7. Stipulations in Policies against Addi- No. 8. The Legal Effect of a Promise to Pay a Specific Kind of Money. By Walter D. Coles, No. 9. The Right of a Party to Impeach his Own Witness. By John F. Doherty, 174. No. 10. Proceedings to Obtain Sick and Distress Benefits of Societies and Fraternities. By Eugene McQuillin, 193. No. 11. The Treaties of the United States and Alien Land Laws of Illinois and other States of the Union. By G. W. Duwalt, 311. No. 12. Execution Levy on Personalty as Satis- faction-Stay of Collateral and other Action. No. 14. Passenger and Freight Elevators. By No. 15. Legitimate Competition. By William No. 16. Expert Testimony. By Gordon C. Ham- No. 17. The Appointment of Proxies and Revo- cation of Their Powers. By Chapman W. A Good and Marketable Title. By Percy No. 18. Bicycles as Baggage. By Lyne S. Met- No. 19. Limit of Municipal Indebtedness-Ag- “Liability.” By Chas. E. DeLand, 381. No. 20. Disbarment for Professional Misconduct Involving Indictable Offense. By Henry Z. No. 21. Can the Liability of a Carrier of Passen- gers be Limited by Contract? By George No. 22. Are Judgments Quasi-Negotiable. By Central Law Journal. ST. LOUIS, MO., JULY 3, 1896. V. The decision of the United States Supreme in 1895 had so held in the case of Watkins v. of contracts made before and after its pas- In contract in view of them. But it seems im- NOTES OF RECENT DECISIONS. CRIMINAL LAW AND PROCEDURE-IMPOSI- TION OF COSTS ON PROSECUTOR-CONSTITUTION- ALITY OF STATUTE.-In Lowe v. Kansas, 16 S. C. Rep. 1031, the Supreme Court of the United States decides that Gen. Stat. Kan. 1889, ch. 82, § 326, providing that, when a prosecution has been instituted without probable cause and maliciously, the name of the prosecutor shall be stated in the finding, and he shall be adjudged to pay the costs, and committed to the county jail until they are paid, is not invalid as depriving the prosecutor of his property without due proc- ess of law; the statute, as construed by the State court, giving him the right to be heard and to introduce evidence at the trial as to whether he had instituted the prosecution without probable cause, and from malicious motives and that as the statute is applicable to all persons under like circumstances, and does not subject the individual to an arbitrary exercise of power, it does not deny him the equal protection of the laws. The court thought that whether the mode of proceeding prescribed by this statute, and followed in this case, was due process of law, depends upon the question whether it was in substan- tial accord with the law and usage in England before the Declaration of Independence, and in this country since it became a nation, in similar cases. Murray v. Hoboken Co., 18 How. 282, 272; Dent v. State of West Vir- ginia, 129 U. S. 114, 124, 9 Sup. Ct. Rep. 231. By the common law, at first, while no costs, eo nomine, were awarded to either party, yet Abr. "Costs." A; Day v. Woodworth, 13 intervene, on condition of giving bond to pay costs, may be compelled to do so by attach- ment, without remitting the payee to suit upon the bond. Craig v. Leitensdorfer, 127 U. S. 764, 771, 8 Sup. Ct. Rep. 1393. And, in an information to enforce a charitable trust, a relator is required, who may be compelled if the information is not maintained, to pay costs. Attorney-General v. Smart, 1 Ves. Sr. 72, and note; Attorney-General v. Butler, 123 Mass. 304, 309. English stat- utes, from long before the American Revolu- tion, authorized costs against informers upon a penal statute, or against private pros- ecutors of an indictment or information to be awarded by the court, either absolutely or unless the judge before whom the trial was had certified that there was probable cause for the prosecution. St. 18 Eliz. ch. 5; 27 Eliz. ch. 10; 4 W. & M. ch. 18, § 1; 13 Geo. III. ch. 78, § 64; Bac. Abr. "Costs," E; Rex v. Heydon, 1 Wm. Bl. 356, 3 Bur- rows, 1304; Rex v. Commerell, 4 Maule & S. 203; Reg. v. Steel, 1 Q. B. Div. 482. Mr. Justice Brown dissented from the criticism RAILROAD COMPANY-MUNICIPAL AID BONDS -CHANGE OF ROUTE.-It is held by the Su- preme Court of Appeals of West Virginia in Ravenswood S. & G. Ry. Co. v. Town of Ravenswood, 24 S. E. Rep. 597, that if at the time a proposition to subscribe to the stock of a proposed railroad is submitted to the voters of a small municipal corporation, absence of proof to the contrary, such location will be presumed to be a part of such proposition; and if, after the vote is taken, such location is materially changed to a route entirely beyond the limits of such municipality, the right to demand the issuance of the bonds authorized by such vote will be presumed to have been abandoned, even though the authorities of such road should, by leave, obtain the privilege of running trains over the track of another road in full operation, and extending through such municipality on a different route and in a different direction. Under such circumstances, a mandamus will not lie to compel the municipal authorities to issue such bonds. Upon the law involved in the case, the court says: In the case of Banet v. Railroad Co., 13 Ill. 504, it is held: "A subscriber to railroad stock will be held liable to the payment of his subscription although the legislature may have authorized, and the directors of the company may have adopted, a change of route from the first fixed by-law, provided the change does not make an improvement of a different character, and his interest is not materially affected by the alteration." And in the case of Sprague v. Railroad Co., 19 Ill. 177, in approval of the foregoing decision, it is said: "In determining the question as to how far the original purposes of a corporation may be departed from after subscriptions have been made to its stock without violating the rights of the stockholders individually, we must first consider with what intention and in view of what advantage the law must presume such subscriptions are made. As is clearly manifest from the decision of the case above referred to, the conclusive presumption is that it was with a view to the profits to be derived from the stocks thus subscribed as an investment, and not in reference to any incidental advantages which may accrue to the stockholders by reason of the construction of the improvement, in consequence of any anticipated enhancement of any other property which the stockholders may own, or otherwise." Railroad Co. v. Zimmer, 20 Ill. 654; Railroad Co. v. Earb, 21 Ill. 291; People v. Holden, 82 Ill. 93. These cases (and many others in support thereof might be cited) establish the rule that a subscriber to railroad stock is induced to grant his subscription thereto from the profits and dividends to be derived from the stock, and not from any supposed incidental advantage he may derive from the construction of the road on a peculiar loca tion; and therefore he cannot escape the payment of his subscription because of a change in the location of the road detrimental to his private property. This rule does not apply, however, to the subscriptions of municipal corporations under the laws of this State. They are not permitted to become subscribers to the stock of a railroad without regard to its location, but they are limited to such railroads as are located through, by, or near such corporations, being such railroads as will promote the general prosperity and welfare of the taxpayers of such corporations. It is a well-known fact that subscriptions of stock are no longer made by municipalities to railroad companies through prospect of profit to be derived from the investment, for, while in name they are subscriptions to the stock, they are nothing more than gifts, but that they are made to secure the indirect advantages to be derived from the construction of such railroad by the citizens of such municipality in the enhancement of their property, the increase of the population and taxable subjects and property, and the opportu nities for labor and employment furnished. The actual location of the line of the road before the vote for a proposed subscription is had becomes an essential and important factor in securing the assent of the voters, and a material change of such location after such assent is secured is a breach of the condition on which said vote was had, sufficient to vitiate and render it invalid. In the case of Town of Platteville v. Galena & S. W. R. Co., 43 Wis. 43, it was held: "It is competent for a railroad company in submitting to a municipality a proposition for aid to define therein, as a part of the proposition, the line of the proposed road." And, if it does so, it is bound thereby. Such a proposition may be orally submitted, as well as in writing. And where the road has been already located through a town, and a proposition for aid is submitted to the authorities thereof, it must necessarily be presumed that such location was a part of the proposition. The time, terms, and conditions of the issuance of municipal aid bonds depend entirely on the consent of the legal voters. Hodgman v. Railway Co., 20 Minn. 48 (Gil. 36). Such conditions cannot be departed from or changed without the consent of such voters, ascertained in the manner provided by law. State v. County Ct. of Daviess Co., 64 Mo. 30; Chapman v. Railroad Co., 6 Ohio St. 119; Noeson v. Town of Port Washington, 37 Wis. 168, 177. MUNICIPAL CORPORATIONS-SUPPLIES-DE POSIT ACCOMPANYING SEALED BID-PENALTY. -In Willson v. Mayor, etc., 34 Atl. Rep. 774, decided by the Court of Appeals of Maryland, sealed proposals for furnishing city supplies were advertised for. The bids provided that "the full name and address of a surety must be written on the proposal, and each proposal must be accompanied by a certified check for $500. If the suc cessful bidders enter into contract, with bond, without delay, their checks will be returned as will those of the unsuccessful bidders." The contract was awarded, but the bidder was unable to obtain a surety, and the contract was let to another. It was held that the deposit was a penalty, and could be enforced only to the extent of the actual loss resulting from a failure to complete the contract. The court said in part: Whether a sum named in a contract to be paid by a party in default, on its breach, is to be considered liquidated damages, or merely a penalty, is one of the most difficult and perplexing inquiries encountered in the construction of written agreements. The solution of that question, while to some extent controlled by artificial general rules, which are not wholly in harmony with the ordinary canons of construction, depends, in a large measure at least, upon the particular facts and circumstances of each separate case. There are to be found both decisions and dicta tha are conflicting and irreconcilable, but the general principles which are usually invoked, and which are peculiar to contracts of this character, are nowhere seriously disputed or denied. As just compensation for the injury done is the end which the law aims to reach, the intention of the parties at the time the contract was entered into is often, though not always, given weight; and while the language they have used in the instrument, if they declare that the damages shall be liquidated, is a circumstance that may have its influence (Geiger v. Railroad Co., 41 Md. 4), yet even their explicit words will be sometimes disregarded (Hough v. Kugler, 36 Md. 195), and the measure of damages will be restricted to such as the evidence shows have been actually sustained, if the entire agreement, and the peculiar circumstances of the subject-matter of the contract, indicate that the reason and justice of the case require this to be done. Kemble v. Farren, 6 Bing. 141; Foley v. McKeegan, 4 Iowa, 1; Watts v. Sheppard, 2 Ala. 425; Streeper v. Williams, 48 Pa. St. 450; Perkins v. Lyman, 11 Mass. 76; Condon v. Kemper, 47 Kan. 126, 27 Pac. Rep. 829, and 13 Lawy. Rep. Ann. 671, and notes; Chamberlain v. Bagley, 11 N. H. 234; Davies v. Penton, 6 Barn. & C. 216; Fitzpatrick v. Cottingham, 14 Wis. 237; Fisk v Gray, 11 Allen, 132; Green v. Price, 13 Mees. & W. 701. It is equally well settled that a sum, if it be at all reasonable, and is stipulated to be paid as liquidated damages for the breach of a contract, will be regarded as such, and not as a penalty, where, from the nature of the covenant, the damages arising from its breach are wholly uncertain, and cannot be ascertained upon an issue of fact. A common instance is the case of agreements between professional men, binding a retiring partner, or an apprentice or clerk, not to interfere with the business of the other. Galsworthy v. Strutt, 1 Exch. 659; Rawlinson v. Clarke, 14 Mees. & W. 187; Mercer v. Irving, El. Bl. & El. 563. But a stipulation to pay a specified sum upon the nonperformance of a contract is regarded as a penalty, rather than as liquidated damages, if the intention of the parties as to its effect is at all doubtful, or is of equivocal interpretation. Shute v. Taylor, 5 Metc. (Mass.) 61; Dimech v. Corlett, 12 Moore, P. C. 199; Crisdee v. Bolton, 3 Car. & P. 240; Chilliner v. Chilliner, 2 Ves. Sr. 528; Coles v. Sims, 5 De Gex, M. & G. 1. And such a stipulation is generally regarded as a penalty, in the absence of a clear indication of a contrary intention by the parties at the time the contract was executed, where the agreement is certain, and the damages for a breach thereof are easily and exactly ascertainable. Burrill v. Daggett, 77 Me. 545, 1 Atl. Rep. 677; Brown v. Bellows, 4 Pick. 179. Finally, the tendency of late years has been to regard the statements of the parties as to liquidated damages in the light of a penalty, unless the contrary intention is unequivocally expressed, so that harsh provisions will be avoided, and compensation alone will be awarded. Gammon v. Howe, 14 Me. 250; Leggett v. Insurance Co., 53 N. Y. 394; Brown v. Bellows, supra; 2 Green Ev., §§ 258, 259. Now, it will be observed that the contract between the appellant and the appellee, evidenced by the bid filed and accepted, has not a word in it descriptive of the $500 deposit as either liquidated damages or a penalty. It is clear, therefore, that the parties them. ages, especially as the decided inclination of the courts, in doubtful cases even, is to treat the stipulated sum as merely a penalty. Indeed, there is no explicit forfeiture of the deposit at all. The contract provides simply that "if the successful bidders enter into contract, with bond, without delay, their checks will be returned;" but it is nowhere expressly declared that a failure to enter into bond shall entitle the city to the whole amount of the deposit, or to any part of it, though it is palpably implied that so much of it as will be a just compensation for any loss that may result to the city from the failure of the bidder to furnish the bond was, in view of the whole subjectmatter, designed by the parties to be applied by the city to its own reimbursement. But, beyond this, the exact amount of loss which would result to the city by the failure of a bidder to give the required bond is capable of definite and precise ascertainment. A failure to give the bond is a breach of the contract, and the damages which would result from that breach would be the amount the city paid, if anything, in excess of the amount of the unexecuted bid, and also the expenses of a readvertising for new bids. These elements of damage are neither uncertain, nor difficult of ascertainment by a jury, and this fact is one of the recognized tests resorted to for distinguishing between liquidated damages and a penalty. Geiger v. Railroad Co., supra. Not only, then, is there no provision expressly declaring this deposit to be liquidated damages, but to treat it as such would require the superaddition, by implication, of a distinct term to the contract, which is not permissible, and the reversal of the doctrine that courts lean strongly against upholding a specified sum as liquidated damages where such an interpretation is of doubtful accuracy and leads to manifest injustice. That an interpretation which treats this deposit as liquidated damages would, to say the least, be of doubtful accuracy, cannot be disputed. That it would be unjust, in this particular case, in its results, is scarcely open to discussion. The appellant is conceded to have acted in perfect good faith. The city has not only not lost any. thing by his failure to give the bond, but it has actually gained thereby a considerable sum; and it would be unconscionable (Cutler v. How, 8 Mass. 257), under these conditions, for it to retain the $500 as stipulated and liquidated damages for a technical breach which has occasioned no appreciable injury. We discover nothing on the face of the contract, nothing in all the surrounding circumstances on the subject-matter, and nothing in the rules of law, which will justify us in holding this deposit to be liquidated damages, unless the remaining proposition to be considered sustains the appellee's contention. That proposition is that where a sum is deposited, either with a third person, or with the other party to the contract, it is invariably treated as liquidated damages; and the cases of Wallis v. Smith, 21 Ch. Div. 250; Hinton v. Sparkes, L. R. 3 C. P. 161, and some others, have been referred to. In Wallis v. Smith the plaintiff entered into a contract with the defendant, who was a builder, to sell him an estate for £70,000, which was to be expended by the defendant in building on the estate. The contract contained numerous provisions, and among other things, that a deposit of £5,000 should be paid by the defendant into the bankers, to the joint account of |