45. EQUITY Torts of Plaintiff, Where a landlord holding a lease on certain property of its tenants' tortiously took possession of their goods, and applied them to the rent, a bill by it to enforce its lien, and have relief against a judgment in trespass for taking such goods, will be dismissed.-DEAN V. ELYTON LAND Co., Ala., 21 South. Rep. 213.

46. EVIDENCE-Bill of Sale.-A bill of sale of person. alty, though attested by two subscribing witnesses, is admissible in evidence upon due proof of its execution by one only of them, without calling or accounting for the other.-COOPER V. O'BRIEN, Ga., 26 8. E. Rep. 470. 47. EVIDENCE-Parol Evidence-Contract.-Evidence of conversations and negotiations leading to the mak ing of a written contract between the parties is inad missible to add other terms and conditions thereto.TOWN OF COLORADO CITY V. TOWNSEND, Colo, 47 Pac. Rep. 653.

48. FEDERAL COURTS-Promissory Notes.-A federal court has no jurisdiction in an action upon a promis. sory note by an indorsee against a remote indorser, notwithstanding diverse citizenship exists between them, unless the person from whom the indorsee derives title could have maintained an action on the same note against the same defendant.-SKINNER V. BARR, U. S. C. C., E. D. (Penn.), 77 Fed. Rep. 816.

--

49. GARNISHMENT OF CORPORATION. Where there were financial dealings pro and con between a corpora. tion and one of its salaried officers, but there never was a time when, upon striking a balance between them, there would be anything due from the corporation to the officer, a garnishment served upon the corporation at the instance of a creditor of the officer could not be made effectual for the purpose of subjecting any portion of the latter's salary to the payment of the creditor's claim against him.-AMERICAN NAT. BANK OF MACON V. BRUNSWICK LIGHT & WATER Co., Ga., 26 S. E. Rep. 473.

50. GIFTS CAUSA MORTIS. Decedent directed her servant to give certain boxes to claimant after her death, but kept them in her possession until she be came unconscious, whereupon the servant took the boxes to claimant: Held, that the attempted gift was void for want of valid delivery.-IN RE HEMPHILL'S ESTATE, Penn., 36 Atl. Rep. 406.

51. GRAND JURY · Organization. Where the court organized a grand jury of sixteen persons, and, with-out discharging two of them, who were reported absent, ordered the summoning of two salesmen, one of whom was selected as a grand juror, it constituted reversible error where one of the absent jurors subsequently appeared and participated in the delibera. tions of the jury.-RAMSEY V. STATE, Ala., 21 South. Rep. 209.

52. HIGHWAYS-Proceedings to Establish.-Proceedings laying out a highway are void as to owners of land taken who were not served with notice of the time and place of hearing the petition, as required by Gen. Laws 1878, ch. 67, §§ 2, 6, unless they confirmed the same or waived their objections to want of notice. -GRAND TRUNK RY. Co. v. TOWN OF BERLIN, N. H., 36 Atl. Rep. 554.

53. HUSBAND AND WIFE-Necessaries.-A debt for the rent of an hotel leased by the wife solely for profit, under a contract signed by herself and her husband, is not within the statute providing that a wife's real estate can be sold to pay debts created on account of "necessaries" for herself or any member of her family. -CROW V. SHACKLETT, Ky., 38 S. W. Rep. 692.

54. IMPRISONMENT FOR DEBT-Order of Discharge.The Illinois statute concerning discharge from imprisonment for debt (Rev. St. ch. 72), providing, by section 34, as amended by the act of June 14, 1887, that no person shall be discharged under the act who neg. lects or refuses to schedule his property as thereby required, applies to defendants imprisoned un. der execution upon judgments for torts, as well as upon judgments for debt; and a defendant imprisoned

in an action for a tort is not entitled to his discharge without making the schedule required by the act.STROHEIM V. DEIMEL, U. s. C. C. of App., Seventh Cir cuit, 77 Fed. Rep. 802.

55. INJUNCTION AGAINST STATE OFFICERS-Building and Loan Associations.-Complainant, a building and loan association, alleged in its bill, that a statute of the State of Montana relative to the business of such associations imposed such oppressive and unjust restrictions that it could not comply with them; that it had ceased to transact new business in the State, and was only holding its securities, already taken from residents of the State, and collecting payments as they fell due; that the officials of the State had notified it in writing that it was required to comply with the terms of the act, and, if it failed to do so, proceedings would be taken against it to enforce certain fines and penalties, and a receiver of its property would be ap plied for; and thereupon complainant sought to enjoin the State officials from such action: Held, that the bill showed no right to the equitable rellef sought, since it was not positively alleged that the complainant had failed to do the acts, failure to do which would subject it to penalties under the act, nor that there would be a multiplicity of suits to enforce such pen alties, and since the invalidity of the act, if it contravened the constitution of the United States, would be a defense to actions to enforce such penalties, and any ground of equitable relief would be equally available as a defense in proceedings to appoint a receiver. -COLUMBIA BUILDING & LOAN ASSN. V. GRANGE, U. S. C. C., D. (Mont.), 77 Fed. Rep. 798.

56. INSANE PERSON-Note for Legal Services.-A note executed by a person of unsound mind is not enforce able as a contract, and, when given for attorney's fees for defending the maker in proceedings to have him adjudged of unsound mind, to authorize a recovery it must be shown that the services were necessary for the proper protection of the maker's rights, and that the charge made was reasonable.-MCKEE'S ADMR. V PURNELL, Ky., 38 S. W. Rep. 705.

57. INSOLVENT DEBTOR-Assignment-Attachment.Where the property of an insolvent has been attached, the trustee in insolvency may intervene, and move to quash the attachment.-PALMER V. HUGHES, Md., Atl. Rep. 431.

58. INSURANCE-Action on Policy-Burden of Proof.The burden of proving compliance with the necessary requirements of an insurance policy as to proofs of loss, or the waiver of such compliance on the part of the company, is on the insured, and, if he fails to es tablish the same by a preponderance of evidence, his action must fail.-FLANAGHAN V. PHENIX INS. Co., W. Va., 26 S. E. Rep. 513.

59. INSURANCE-Authority of Agent.-An insurance agent authorized to solicit business for his company, and to issue policies, is, within the general scope of the business he transacts, pro hæc vice the insurance company. He may waive forfeitures and conditions in the policy, and may consent to prior or subsequent insurance on the property, although the policy issued by him contains a provision that such prior or subse quent insurance taken on the property will render the policy then issued void.-WOOLPERT V. FRANKLIN INS. Co., W. Va., 26 S. E. Rep. 521.

60. LANDLORD AND TENANT-Assignment of Rever sion.-There being competition for several locations offered for a post office, persons occupying property adjacent to its thenpresent location, who wished it to remain there, agreed to pay a certain sum annually to the owner of the premises which it occupied, or his assigns, in consideration that he would lease the prem ises to the government for a term of five years at an inadequate rental: Held, that the agreement did not create the relation of landlord and tenant; hence the right to receive payments under it was not appurte nant to the land, and accordingly did not pass by a con veyance of the premises. SANBORN V. FIRST NAT. BANK OF GREELEY, Colo., 47 Pac. Rep. 660.

61. LANDLORD AND TENANT — Chickasaw Lands.Where plaintiff, a member of the Chickasaw Nation, having the right, in common with other members, to occupy the lands of the tribe, by contract gave defend. ant possession of a tract of such lands for a fixed term, at a certain yearly rental, the relation of landlord and tenant was created, sufficient to sustain an action for unlawful detainer.-WILCOXEN V. HYBARGER, I. T., 38 8. W. Rep. 669.

62. LIMITATIONS-Color of Title.-A widow and chil dren transferred to T a land certificate issued to the deceased husband's heirs, and also the land to be surveyed under it. Afterwards the land was located, and was patented to the heirs, the widow having died. Subsequently the heirs conveyed the land to defend. ants: Held, that the latter conveyance could not serve as a basis for the three-years limitation, it being insufficient to connect defendants with the sovereignty of the soil.-BALDWIN V. ROOT, Tex., 38 S. W. Rep. 630. 63. MALICIOUS PROSECUTION-Probable Cause.-Evi. dence that the waiter at a club had been detected leav ing the clubhouse with food taken from the tables in his pocket, that all the food used at the club was bought by and belonged to the steward, and that wait. ers were forbidden to take articles from the club, was sufficient to show probable cause for the prosecution of the waiter for larceny.-BOWEN V. TASCOE, Md., Atl. Rep. 436.

36

64. MARRIED WOMEN-Separate Estate.-The wife borrowed an amount avowedly at the time for her use and benefit. She obtained a certificate from a competent judge authorizing her to borrow the amount and executed a mortgage. Evidence that the sum was subsequently received from her by her husband, and used in his business, will not invalidate the mortgage given to secure its payment.-JOHNSON V. PESSOU, La., 21 South. Rep. 177.

65. MORTGAGES-Foreclosure--A mortgage providing for payment of all "attorneys' commissions incurred in the collection of it," and that the proceeds of sale, after paying prior liens, should be applied in payment "of all expenses Incident to the sale, including com. pensation to the person making the sale," was turned over to a firm of attorneys for foreclosure, and was thereafter assigned by the mortgagee to one member of such firm for the purpose of making the sale: Held, that the firm was entitled to separate collection com. missions in addition to those allowable to such partner for making the sale.-GAITHER V. TOLSON, Md., 36 Atl. Rep. 449.

67. MUNICIPAL CORPORATIONS In order to authorize a municipal corporation to take, for the purpose of opening or extending streets, prop. erty already devoted to public use, the power must be conferred in express terms or by necessary implicatlon.-CITY COUNCIL OF AUGUSTA V. GEORGIA RAILROAD & BANKING CO., Ga., 26 S. E. Rep. 499.

68. MUNICIPAL IMPROVEMENTS Street DamagesLeasehold.-A leasehold is such an estate as that if, in the construction by the municipal authorities of a city of a public improvement in one of its streets, the es. tate of one holding such an interest in real property be damaged, he may sustain an action.-PAUSE V. CITY OF ATLANTA, Ga., 26 S. E. Rep. 489.

69. PARTITION-Evidence of Divisibility.-Evidence, such as to drainage of a plantation, the location of ditches and fences, which goes to show the character of a plantation, as to its divisibility in kind, is receivable.-SONIAT V. SUPPLE, La., 21 South. Rep. 165.

70. PARTNERSHIP-Joint Adventure.-Complainant sold defendant the exclusive right to manufacture and sell certain inventions, the agreement providing that

defendant should furnish capital and machinery for the enterprise, and pay complainant half the profits after deducting a reasonable rental for the factory. Defendant also agreed to keep books of account, open to complainant's inspection, and to render accounts periodically. Defendant was given power to manage the business: Held, that this was an agreement of joint adventure, and not of partnership.-WARWICK V. STOCKTON, N. J., 36 Atl. Rep. 488.

71. PAYMENT-Made on Sunday.-While the payment of a debt on Sunday is illegal, the acceptance of such payment is equally so, and it operates to discharge the debt.-JAMESON V. CARPENTER, N. H., 36 Atl. Rep. 554. 72. PLEADING-Splitting Cause of Action.-One single cause of action cannot be split up, and divided into a multiplicity of suits, for the purpose of defeating the jurisdiction of the court to which the action jurisdictionally belongs; and if it be thus divided, and the multiplicity of suits be consecutively filled in a court not constitutionally endowed with jurisdiction of the whole sum, or the entire cause of action, the same will be treated as one single suit, and our writ of prohibition will go to the judge of the court entertaining the suits, and arrest their further progress.-STATE V. NEWMAN, La., 21 South. Rep. 189.

73. PRINCIPAL AND SURETY — Bond-Defenses.-In an action against the sureties on a bond conditioned for the principal obligor's paying over money collected by him as agent on the first demand of plaintiff, obligee, a plea that plaintiff changed the time and manner of settlement provided in the bond does not state a defense, since the whole matter was in plaint. iff's discretion.-LAKE V. THOMAS, Md., 36 Atl. Rep. 437. 74. PROCESS -Service-Privilege of Suitor.-A nonresident suitor, coming into the State to attend the taking of depositions, on notice served by the adverse party, in an action pending in another State, is priv ileged from the service of process in an action com. menced by the adverse party, though the depositions were taken by a notary public by agreement, and not under process from the foreign court.-PARTRIDGE V. POWELL, Penn., 86 Atl. Rep. 419.

75. PUBLIC LANDS Railroad Reservations.-Under Sp. Laws 1873, p. 324, creating and continuing certain railroad reservations, and making it the duty of the commissioner of the general land office to designate such reservations on the maps of his office (section 7), the action of such officer in so designating them and fixing their boundaries is conclusive.-WILSON V. DILLINGHAM, Tex., 38 S. W. Rep. 650.

76. RAILROAD COMPANY-Electricity-Negligence.-It is negligence on the part of an electric street car company, in the construction and establishment of its plant, to so place one of its guy wires over the track of a steam railway company as not to afford sufficient space for the latter's trains to easily and conveniently pass, without risk of danger and injury to its servants and employees.-ERSLEW V. NEW ORLEANS & N. E. R. Co., La., 21 South. Rep. 153.

77. RAILROAD COMPANY-Fires Ownership of Land. -The mere possession of land as agent does not entitle the agent to sue for damages caused by the burning of the grass and injury to the turf.-GALVESTON, H. & S. A. RY. Co. v. STOCKTON, Tex., 38 S. W. Rep. 647.

78. RAILROAD COMPANY - Injury to Animals.-Where a locomotive engineer, on seeing several horses on the fenced right of way, unsuccessfully attempts to get by them without exciting them, and does not sound the whistle, etc., or "slow down" as to get his train under control, the question of negligence is for the jury.-DENVER & R. G. R. Co. v. NYE, Colo., 47 Pac. Rep. 654.

79. RAILROAD COMPANY Injury to Person on Track. -While it may be assumed by the engineer that a person walking upon a railroad track will get off it in time to save himself from injury from a train, yet that is not the rule as to children of very tender years, or

persons plainly and obviously disabled by deafness, intoxication, sleep, or other cause from taking care of themselves.-GUNN V. OHIO RIVER R. Co., W. Va., 26 S. E. Rep. 546.

80. RAILROAD COMPANY-Mortgage-Sale as Entirety. -Const. art. 17, § 11, which provides that the rolling stock of a railroad company shall be personal prop. erty, and liable to execution and sale like the personal property of individuals, does not prohibit a sale, as an entirety, of railroad property, including rolling stock, covered by a deed of trust, where it does not prejudice the interests of any one.-SOUTHWESTERN ARKANSAS & I. T. RY. Co. v. HAYS, Ark., 38 S. W. Rep. 665.

81. RAILROAD COMPANY - Negligence.-No recovery can be had for the death of a bicyclist who circled around on his wheel while a freight train was passing the crossing, and who, without dismounting to look or listen, attempted to cross after it had passed, and was struck on another track, by a train coming in the opposite direction, where there was a clear space, from which he could have had an unobstructed view of the track. ROBERTSON V. PENNSYLVANIA R. Co., Penn., 36 Atl. Rep. 403.

82. SALE Conditional Sale.-Where goods are sold, to remain the seller's property until the buyer's note is paid, with an understanding that the buyer may sell in the course of business, and use the proceeds, the seller's title is good, against the buyer or his as. signee, until the goods are so sold, or the note is paid, though the contract does not contain an affidavit of its good faith, and is not recorded, as required by Laws 1885, ch. 30, §§ 1, 2.-BAKER V. TOLLES, N. H., 36 Atl. Rep. 551.

83. SALE Construction of Contract.-Under a contract for the sale of mules which the buyer intended to ship to a southern market, providing that, "at the time second party is ready to ship said mules to mar. ket," he may return any 10 of the animals, and receive a credit therefor, the buyer need not terder back such animals as soon as he is ready to ship any of them, but is entitled to a credit on the note if the tender is made before he is ready to ship all of the mules, or all of them except those which he has a right to tender back.-LOUGHRIDGE V. ALLEN, Ky., 38 S. W. Rep. 698.

84. SALES Failure to Receive Goods.-Where the buyer refuses to accept the goods purchased, in case of a resale at the best price obtainable after due effort the seller may recover the difference between the price secured at the resale and the price to have been paid by the buyer, though the buyer was not given notice of the resale.-CLORE V. ROBINSON, Ky., 38 S. W. Rep. 687.

85. SALE-Statement of Pecuniary Standing.-Where a statement by a purchaser of his pecuniary standing is not so grossly excessive as to imply a fraudulent intent, and no such intent is proved, the estimate is a matter of opinion, and is not ground for the rescission of a sale.-WHITE V. FITCH, R. I., 36 Atl. Rep. 425.

86. TAXATION-Validity of Tax Sale.-A tax sale of land described as "37 acres in the north half of section one," in a certain township, is void for uncertainty.NELSON V. ABERNETHY, Miss., 21 South. Rep. 150.

in trust, and not an executory agreement dependent on the performance by complainants of the stipulation to facilitate sales.-GILDERSLEEVE V. STRATTON, N. J., 36 Atl. Rep. 477.

89. TRUST AND TRUSTEE-Following Trust Funds.Where an executor returned certain stocks and bonds described in the inventory of the estate, and passed an account wherein he charged himself with the same securities, and distributed them to himself as life tenant under the will, on his death the remainder-men were entitled to recover the securities, though they stood in the name of the life tenant, and he was in solvent.-MERCANTILE TRUST & DEPOSIT CO. OF BAL TIMORE V. WELD, Md., 36 Atl. Rep. 445.

90. USURY-Effect on Mortgage.-Where a promis sory note is given for a loan infected with usury, and this is secured by a deed to realty, the latter is void as a conveyance, and cannot be treated as an equitable mortgage.-EQUITABLE MORTG. Co. v. BRASWELL, Ga., 26 S. E. Rep. 487.

91. VENDOR'S LIEN-Release.-In a sale of realty, the vendor retaining title, the taking of a note of either vendor or a third person will not discharge the lien by implication, in absence of plain intention that it so operate.-MANSFIELD V. DAMERON, W. Va., 26 S. E. Rep. 527.

93. WATER COURSE-Obstruction by Non-resident.Where a natural water course is so obstructed by a dam built on a non-resident's land as to work an injury to a resident owner of adjoining land, a court of equity has jurisdiction to redress the injury.-GORDON V. WARFIELD, Miss., 21 South. Rep. 151.

94. WILL-Devise in Trust. Testator bequeathed property to his wife, in trust, providing that after her death the real estate should go to his three sons, "in trust, the net income of which shall belong to them share and share alike," and at their death the estate to pass to their heirs, etc.: Held, that this was an active, continuing trust, for which a trustee should be appointed on the refusal of the sons to act.-IN RE HEMPHILL'S ESTATE, Penn., 36 Atl. Rep. 409.

95. WILLS- Nature of Estate.-Testator gave the re sidue to his executors, in trust, at his wife's death, to pay the income to his four children named, in equal shares, for their lives, respectively, and on "the death of my above named children, and as the same shall occar, then in trust to pay over, grant, and convey unto the respective children of my above named sons and daughters the principal or share of my estate, the income of which is devised for the benefit of their respective parents for life, in such manner as if such de ceased sons and daughters had died, seised thereof, intestate:" Held, that a grandchild who survived testator took a vested estate.-IN RE SNYDER'S ESTATE, Penn., 36 Atl. Rep. 420.

96. WILL- Remainder to "Right Heirs." - Where s fund was bequeathed in trust to pay the interest to testator's wife, and on her death the fund to be paid to his "right heirs," on the death of the wife the fund went to testator's heirs at common law. -IN RE MC CREA'S ESTATE, Penn., 36 Atl. Rep. 412.

97. WITNESS-Impeachment.-In order to show that a witness had made statements out of court different from those made by him on the stand, he must be previously cross-examined as to such alleged state ments. Such statements must be shown by a bill of exceptions to be material to the question at issue. The one made out of court must be shown to have been inconsistent with some fact stated by the witness in his testimony. - STATE V. CONERLY, La., 21 South Rep. 192.

Central Law Journal.

ST. LOUIS, MO., MARCH 19, 1897.

The decision of the case of St. Louis & S. F. Ry. Co. v. Matthews, by the United States Supreme Court, affords an opportunity to Mr. Justice Gray who wrote the opinion to prepare an extremely learned and exhaustive discussion of the common law liability for accidental and negligent fires, of the statutory provisions regulating such liability, both in England and the various States, and of the right of the latter in the exercise of their police power to impose additional burdens and restrictions upon corporations previously chartered when deemed necessary for the protection of the lives, property, or health of the public. The decision, in substance, was that Act of Missouri, 1887, making railroad companies liable for property destroyed by fire communicated by their locomotives, and giving them an insurable interest in the property along their roads, is not in excess of the powers of the legislature; that such a statute does not operate to deprive railroad companies of property without due process of law, nor does it impair the obligation of the contract between such companies and the State, by which they are impliedly permitted to use fire in the operation of their roads, and that a statute making each company owning or operating a railroad within the State liable for property destroyed by fire from its locomotives does not deny to such companies the equal protection of the laws. It will be observed that the points of contention were the making of railroad companies liable for damage by fire from their locomotives, although without negligence and the applicability of such a statute to a railroad company previously incorporated.

The framers of the constitution of Utah undertook some radical measures in connection with the institution of juries. In that instrument it is declared that in capital cases the right of trial by jury shall remain inviolate, but in Courts of general jurisdiction, except in capital cases, the jury shall consist of eight jurors, and in courts of inferior jurisdiction of four jurors. While in criminal cases the

verdict must be unanimous, in civil cases three-fourths of the jury may find a verdict; also a jury in civil cases shall be considered waived, unless demanded by the parties, or one of them. In the recent case of State v. Bates, 47 Pac. Rep. 78, before the Supreme Court of Utah, this constitutional provision was attacked as in conflict with the federal constitution and therefore void; but the court, following many precedents, overruled it, upon the ground that the amendment to the federal constitution in regard to trial by jury applies only to the United States government and not to the States. The purpose of the provision of the Utah constitution, as the court states it, is to "secure the right to life, liberty and property, and the benefit of just laws. Hence, if a jury of eight men is as likely to ascertain the truth as twelve, that number secures the end, for there can be no magic in the number twelve, though hallowed by time. Intelligence, impartiality and integrity are qualifications which enable and influence jurors to ascertain and declare the truth. Such a result does not depend upon any particular number. Legal process must submit to reform in the light of experience and advancing intelligence. True principles must endure, but the methods, modes and means of securing their application to human conduct, human rights and duties-the social system-will change with development and progress and more complicated conditions." The court was of the opinion that the people of the State had the power in the constitution to abolish the common law jury or to change it, as they did, by reducing the number from twelve to eight. The court cites, among other cases, Walker v. Sauvinet, 92 U. S. 90, wherein the United States Supreme Court nearly twenty years ago, held that a trial by jury in suits at common law, pending in the State courts, is not a privilege or immunity of national citizenship which the States are forbidden by the 14th amendment to abridge. While a State cannot deprive a person of his property without due process of law, this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury. The constitutional requirement is met if the trial is had according to the settled course of judicial proceeding and due process of law is process according to the law of the land, as regulated by the law of

the State. States, therefore, may, if they choose, provide for the trial of all offenses against the States, as well as for the trial of civil cases, in the State courts, without the intervention of a jury, or by some different jury from that known to the common law.

The tendency of courts to frown upon suits for breach of promise to marry may be seen in the decision of the case of Yale v. Curtiss, by the Court of Appeals of New York, wherein it was held that in order to support a recovery for breach of promise there must be evidence of an express contract; that a mutual contract to marry could not be inferred from "mere courtship," or even facts tending to show an intention to marry on the part of the defendant. The New York court in its reasoning indicates that as "thorough acquaintance with character, habits and disposition is essential in order to make an intelligent contract" parties "may form such an acquaintance without having the infer

ences of a contract attach." Such decisions will go a long way towards abolishing many actions which are grounded upon mere flirtation and not upon express contracts of marriage.

NOTES OF RECENT DECISIONS.

PARENT AND CHILD CUSTODY OF CHILDRIGHT OF FATHER.-The Supreme Court of Wisconsin decides, in Markwell v. Pereles, 69 N. W. Rep. 798, that under Rev. St. § 3964, providing that the father of a minor child, if competent to transact his own business, and not otherwise unsuitable, shall be entitled to the custody of the minor, the father is not unsuitable because its maternal relatives, who have had the care of the child since its birth and the death of its mother, a period of 21 months, desire its further custody, and are able to give it better advantages than the father, who had remarried, and that a father is not "unsuitable," so as to authorize the court to deny him the custody of his child, which had been in the custody of its maternal relatives since its birth and the death of its

mother, a period of 21 months, because he is reserved by nature, and, due to his business, is absent from his home a great part of his time, and that during his absence the child

RAILROAD COMPANY

RELIEF ASSOCIATION -VALIDITY OF RELEASE. In Chicago, Bur lington & Quincy R. R. Co. v. Miller, 76 Fed. Rep. 439, the Circuit Court of Appeals for the Eighth Circuit, has held that in an action against a railroad company by one of its employees to recover damages for personal injuries through negligence, a plea that the employee had accepted benefits as a member of a relief association organized by the company, under an agreement that he thereby relinquished his right of action, does not form a valid defense when it fails to show that, if the association was at any time shor of funds to meet its obligations to a member. that member could maintain an action against the company, or fails to set out the arrange. ment between the company and its employees with such fullness and certainty that the court may be able to see that the arrangement fair and reasonable, and not against publi policy, nor voidable for want of valuable con sideration. The concurring opinion of Cald well, Circuit Judge, is worth quoting: "A suming that contracts of this character are valid, this case is rightly decided on the ground stated in the opinion. But such coa tracts, in so far as they attempt to release railroad company from liability for injurie inflicted on its employees through its negli gence, are without sufficient consideration against public policy, and void, and mus ultimately be so declared by all courts." Th dictum, while not consonant with the weigh

i