with process, on the unauthorized appearance of an attorney in his name, is to be sought by motion in the case in which such appearance was entered, and not by an equitable action.-Vilas v. Plattsburgh & M. R. Co., N. Y., 25 N. E. Rep. 941.

62. JUDGMENT-Recitals.-Rev. St. Mo. 1879, § 3562, provides for service on a non-resident by some person competent to testify by whose affidavit or deposition the service is to be proved. The record disclosed a service by a sheriff of another State not proved by his affidavit or deposition: Held, that a general recital in the judgment that notice "was duly served on the defendant" is limited to the specific method of service disclosed by the record, and that being insufficient no jurisdiction is acquired.-Higgins v. Beckwith, Mo., 14 S. W. Rep. 931.

63. JUDGMENT-Res Adjudicata.- In a suit to quiet title to a parcel of land, the owner of an adjoining par. cel was made a party defendant, and the boundary be tween them was established by the decree quieting the title, and forever restraining the defendants from setting up title to the land: Held, that this judgment precluded such adjoining owner and those claiming under him from setting up a different boundary under an earlier survey between the original owners.-Satterwhite v. Shirley, Ind., 25 N. E. Rep. 1100.

64. LANDLORD AND TENANT-Injunction.-A gas company which had leased and is using natural gas wells is entitled to an injunction against the lessor restrain. ing him from interfering therewith, since such interference is likely to result in irreparable injury.-Citi zens' Natural Gas Co. v. Shenango Natural Gas Co., Pa., 20 Atl. Rep. 947.

65. LIFE INSURANCE-Forfeiture of Policy.-A life insurance company, having requested the payment of an assessment, and assured the policy holder that if it was paid he would remain a member of the company, cannot thereafter insist upor a forfeiture of the policies and demand a certificate of health before reinstatement because insured had not paid the assessment at a date prior to said request and assurance of the company. True v. Bankers' Life Ass'n. of Minnesota, Wis., 47 N. W. Rep. 520.

66. LIMITATION OF ACTIONS-Recovery of Land.-An action for the recovery of the title or possession of lands, tenements, or hereditaments can only be brought within 10 years after the cause of such action shall have accrued. Civil Code, § 6.-Fitzgerald v. Brewster, Neb., 47 N. W. Rep. 475.

67. LIMITATIONS-Claims Against Decedents.-In 1880, there was no statute which fixed a limit of time within which a claim against the estate of a deceased person should be presented.-In re Gragg's Estate, Minn., 47 N. W. Rep. 543.

68. MANDAMUS-Clerk of Court.-By How. St. Mich. § 6592: Held that mandamus would not lie to compel the board of supervisors to audit and allow the clerk his fees and expenses for issuing subpoenas, as registered in chancery, to the owners of the land, though they were taxed as costs in the tax suits.-Sherman v. Board Sup'rs Sanilac County, Mich., 47 N. W. Rep. 513.

69. MANDAMUS-Parties.-When the question is one of public right, and the object of the mamdamus is to enforce the performance of a public duty, it is sufficient for the relator to show that he is a citizen of the county, and as such is interested in the execution of the laws.State v. Grace, Oreg., 25 Pac. Rep. 382.

70. MANDAMUS-Railroad Companies.-Mandamus proceedings to compel a railroad company to reconstruct a public road which it has taken may be begun by the road commissioners acting officially without the consent of the attorney general.— Commonwealth v. New York, P. & O. R. Co., Penn., 20 Atl. Rep. 951.

71. MASTER AND SERVANT-Fellow-servant.-A laborer engaged in loading a vessel, and placed at the hatchway to give warning when bales were thrown down, and those engaged in throwing down the bales, are

fellow servants of a laborer employed to receive and store them below.-Ocean S. S. Co. v. Cheney, Ga., 12 S. E. Rep. 351.

72. MASTER AND SERVANT-Injuries to Servant.-A brakeman on defendant's road was injured by coming in contact with a highway bridge across the railroad track, while he was riding on top of a freight car in the night-time: Held, that defendant could not complain of the court's refusal to permit it to give in evidence the contents of its bulletin boards, and placards posted in the cabooses of its freight trains, showing the location of low bridges, where a copy of such placards was subsequently admitted in evidence.-Louisville, etc. R. Co. v. Hall, Ala., 8 South. Rep. 371.

73. MASTER AND SERVANT-Limit of Recovery.-Under the provisions of Code Ala. § 2591, that in certain cases an employer is liable in damages for the death of an employee, recovery is limited to the pecuniary loss.Louisville & N. R. Co. v. Orr, Ala., 8 South. Rep. 360.

74. MASTER AND SERVANT-Negligence.-It is well settled that a wrong-doer is liable for an injury which resulted as the natural and probable consequences of his wrongful act, and which he aught to have foreseen in the light of surrounding circumstances.-Hartvig v. N. P. Lumber Co., Oreg., 25 Pac. Rep. 358.

75. MASTER AND SERVANT-Negligence.-Under the provisions of Code Ala. § 2590, contributory negligence cannot be imputed to the employee for continuance in the service after discovering a defect, unless he fails to give information within a reasonable time, or unless injury is so imminent that a prudent man would not continue in the service under like circumstances.-Highland Ave. & B. R. Co. v. Walters, Ala., 8 South. Rep. 357.

76. MEASURE OF DAMAGES-Evidence.-In an action for personal injuries, where plaintiff claims damages for permanent injuries, it is proper to charge that no "fixed rule exists for estimating this sort of damages," and to leave the measure of such damages to the jury under all the circumstances of the case.-Richmond & D. R. Co. v. Allison, Ga., 12 S. E. Rep. 352.

77. MINING CLAIMS-Parties.-An interest claimed by an intestate in a mining claim at the time of his death is an interest in real estate, and descends to his heirs, who alone can maintain an action to quiet title thereto. The right to maintain such action is not conferred upon the administrator of the intestate by Rev. St. U. S. §§ 2322, 2324.-Keeler v. Trueman, Colo., 25 Pac. Rep. 311.

78. MORTGAGES - Description.-A mortgage of a specifically described tract of land in which is a vein or lode of metal on which some mining has been done, with all the mines, minerals, mining rights, privileges, and appurtenances belonging or appertaining to the same, does not cover an undeveloped portion of the lode contained in land adjoining the tract described, and in which also is the situs of the lode.-Staples v. May, Cal., 25 Pac. Rep. 346.

79. MUNICIPAL BONDS-Internal Improvements.-A beet sugar manufactory which does not manufacture sugar from beets for toll, although propelled by water power, is not within legislative control by virtue of any law of this State, and is therefore held not a work of "intereal improvement," within the meaning of the constitution or statute.- Getchell v. Benton, Neb., 47 N. W. Rep. 468.

80. MUNICIPAL CORPORATION-Street AssessmentsLien.-Under Laws Cal. 1885, p. 147, §§ 7, 8, 9, the liability of each lot is a separate cause of action, and foreclosure of the lien upon one lot will not prevent a subsequent action against the same person to foreclose on another lot owned by him.-Gillis v. Cleveland, Cal., 25 Pac. Rep. 351.

ers to a contractor at a fixed price per day, for its own benefit, and hence such a contract is ultra vires, but not illegal.-City of St. Louis v. Davidson, Mo., 14 S. W. Rep.

825.

an

82. MUTUAL BENEFIT INSURANCE-Evidence.-In action on a mutual benefit certificate, made part of the petition, when defendant pleads a general denial, and the benefit certificate is not introduced in evidence, a judgment for plaintiff will be reversed for want of evidence.- Knights of Honor v. Fortson, Tex., 14 S. W. Rep. 922.

83. NATIONAL BANKS-Taxation of Stock.-Under Rev. St. U. S. § 5219, a State may tax national bank shares held by its corporate or individual citizens as an investment, subject to the restriction that the tax shall not exceed the burden upon similar property in the State.-First Nat. Bank of Wilmington v. Herbert, U. S. C. C. (Del.) 44 Fed. Rep. 158.

84. NEGLIGENCE-Dangerous Premises-Evidence.-In an action for the wrongful death of a child between five and six years old, it is not admissible for the attending physician, who has already stated that the child was frail and weak, to further testify whether in his opinion the child would have survived the injury had it been a healthy one.-Ilwaco Ry. & Nav. Co. v. Hendrick, Wash., 25 Pac. Rep. 335.

85. NEGLIGENCE-Defective Tools.-A "swage" in a railroad shop had become battered and burred, by reason of which a flake of iron was knocked off, and struck in the eye an employee, who had gone to the shop to get a bolt needed in his work. It was shown that the implement was in "average condition," though one witness testified that it was not proper for use, and should have been repaired: Held, that there was no evidence of negligence.-McNally v. Savannah F. & W. Ry. Co., Ga., 12 S. E. Rep. 351.

86. NEGOTIABLE INSTRUMENT-Evidence.-In an action on a note made by one partner in the firm name, paya. ble to himself, and by him transferred to plaintiff, who claims to be a bona fide purchaser for value, which is denied by defendant, the other partner, who maintains that there was no consideration for the note, and that it was executed in fraud of his rights with the conniv ance of plaintiff, it is competent for defendant to show, on plaintiff's cross examination, whether or not he ever asked defendant for the money, especially when it appears that, after the time when plaintiff claims to have bought the note, he paid defendant several large sums of money without mentioning the note, which was then past due.-Carpenter v. Greenop, Mich., 47 N. W. Rep. 509.

87. OFFICE AND OFFICERS-Appointments-Discharged Soldiers. If sections 2474, 2475, Comp. Laws, confer any right upon honorably discharged soldiers of the late war, in appointment to office, not common to all legal voters in general, the fact that the applicant for ap. pointment was an honorably discharged soldier of the late war must be made known to the appointing power at the time and place of appointment. If not, the ap. pointing power has a right to treat all applicants as standing on an equal footing before the law, and a choice made by it, under such circumstances, must be considered binding.-Thomas v. Commissioners of Beadle County, S. Dak., 47 N. W. Rep. 529.

88. PLEADING-Rescission of Contraet.-In an action on a note, where the answer alleges that defendant was induced to execute it by fraud, and that the consideration received by him was without value, an averment of an offer to rescind the contract is not necessary.Citizens' Bank v. Leonhart, Ind., 25 N. E. Rep. 1099. 89. POLICEMAN Quo Warranto.- The position of policeman is not an "office" within section 21, providing that all officers appointed by the mayor or council shall, with certain exceptions, hold office till the ensuing May.-People v. Cain, Mich., 47 N. W. Rep. 484.

90. PRACTICE-Continuance.-The granting or refus. ing of a motion for a continuance of a cause rests in the sound discretion of the trial court, and its ruling will

not be reversed, except for the most cogent reasons. The court below is apprised of all the circumstances of the case, and the previous proceedings therein, and is better able to decide upon the granting or refusing the application than an appellate tribunal. When the trial court exercises a reasonable, and not an arbitrary, discretion, its action will not be disturbed.-Gaines v. White, S. Dak., 47 N. W. Rep. 524.

91. PRACTICE-Service by Publication.-In an action to quiet the title to real estate, the summons having been served by publication, and judgment having been rendered after default on the part of defendants, the court may in its discretion, set aside the judgment and allow a defense to be made, although more than one year may have elapsed since the rendition of the judgment. Waite v. Coaracy, Minn., 47 N. W. Rep. 537.

92. PUBLIC LANDS-Entry for Another's Use.-A party cannot enter public lands under the pre-emption laws in trust for the use and benefit of another, and the court will not decree that an entry was so made, or that the title acquired thereunder by the pre-emptor from the government inured to the benefit of any other person.-Robinson v. Jones, Neb., 47 N. W. Rep. 480.

93. RAILROAD COMPANIES-Foreclosure of Mortgage. -A decree for the judicial sale of a railroad declared that "any purchaser * * * shall take * ** subject to all unpaid purchase money for any of the lands or rights of way herein referred to, as well as also all unpaid claim of land owners for damages for property taken, injured, or destroyed in the construction of the railroad:" Held, that the purchasing company was not liable upon a judgment rendered prior to the sale, against the old company for a trespass in entering upon plaintiff's land, and constructing its road without leave.-Campbell v. Pittsburgh & W. Ry. Co., Penn., 20 Atl. Rep. 949.

94. REMOVAL OF CAUSES-Separable Controversy.-In a suit in the nature of a creditors' bill, brought in a State court by citizens of the State against a railroad company, also a citizen of the State, the trustee, under a mortgage on the railroad, who was a citizen of an other State, intervened: Held, that there was no separable controversy within the removable act of 1888, § 2, providing that one of several defendants may remove any suit, in which "there shall be a controversy, which is wholly between citizens of different States, and which can be fully determined as between them."-In re San Antonio & A. P. Ry. Co., U. S. C. c. (Tex.), 44 Fed. Rep. 145.

95. REPLEVIN-Damages.-In replevin by a chattel mortgagee against an attaching creditor of the mortgagor the recovery is properly for the full value of the property, even though plaintiff's interest may be less. -Stevenson v. Lord, Colo., 25 Pac. Rep. 313.

96. REPLEVIN-Demand.-Where the plaintiff has de livered property to defendant, and defendant merely detains it, it is necessary that the plaintiff first make demand for it to maintain replevin; and, in such case, a refusal, in order to excuse defendant, must be a qualifled refusal, based upon reasonable grounds. It must not be absolute; otherwise, it will be conversion, un less there is established an adverse right to immediate possession.-Nunn v. Home Ins. Co., Neb., 47 N. W. Rep.

467.

97. SALE-Change of Possession.-Where personal property, capable of an actual delivery, has been sold while in the possession of the vendor, or under his control, such delivery must be made, and must be followed by a continued change of possession, or the sale will be presumed fraudulent and void as against the vendor's creditors.-Lathop v. Clayton, Minn., 47 N. W. Rep. 544. 98. SALE-When Title Passes.-In the sale of personal property, where there has been a complete delivery of the property in accordance with the terms of sale, and nothing remains to be done, in relation to the property, to effect the transfer, the title passes, although there remains something to be done in order to ascertain the total quantity or value of the goods at the price speci

fied in the contract.-Barr v. Borthwick, Oreg., 25 Pac. Rep. 360.

99. SCHOOLS-Discharge of School Teachers.-A pub. lic school teacher engaged for a specific term, who is discharged without cause, need not allege or prove, as a condition precedent to a recovery of his salary for the whole term, a compliance with Gen. St. Colo. § 3077, providing that any person aggrieved by the decision of a board of directors may appeal within 30 days to the county superintendent.-School-Dist. No. 3 v. Hale, Colo., 25 Pac. Rep. 308.

100. SPECIFIC PERFORMANCE-Diligence.-A contract to convey land which provides for the payment of the purchase price within 60 days from its date, "otherwise this agreement to be null and void," clearly shows the intention of the parties to make time the essence of the contract; and the failure of the vendees or their assignee to make or tender payment within the specified time precludes them for maintaining an action for the specific performance of the contract.-Martin v. Morgan, Cal., 25 Pac. Rep. 350.

101. SPECIFIC PERFORMANCE-Mutuality.-Where the owner of land signs an agreement to convey it to plaintiff if he will pay $200 at a given time, the expressed consideration of the contract being 50 cents, the election of plaintiff to treat the contract as binding, and to enforce, gives it such mutuality as will support a suit for specific performance, though plaintiff does not sign the contract himself.-Ross v. Parks, Ala., 8 South. Rep. 368.

102. STATE-Removal of Causes.-The effect of the ad. mission of a part of the territory of Dakota as the State of South Dakota, and the erection of federal courts therein (Act Cong. approved Feb. 22, 1889), was ipso facto to extinguish the territorial government, and its territorial courts.- Wing v. Chicago & N. Ry. Co., S. Dak., 47 N. W. Rep. 530.

-

103. STOCK AND STOCKHOLDERS Rescission. An action by a stockholder against the corporation and its president to rescind the contract of purchase of stock, and to recover the price paid, on the ground of fraud practiced on her by the president in inducing her to take the stock, is governed by Code Civil Proc. N. Y. § 382, subd. 5, providing that the statute of limitations shall not run against "an action to procure a judgment, other than for a sum of money, on the ground of fraud," in a case formerly cognizable in chancery, until the discovery of the fraud by plaintiff, and it is not governed by the six-year limitation provided by subdi. vision 3 of that section.-Bosley v. National Machine Co., N. Y., 25 N. E. Rep. 990.

104. SUBROGATION-Mortgage Sale.-The purchaser at a sheriff's sale on a void foreclosure of a mortgage is subrogated to the interest of the mortgagee, and may himself foreclose.-Dutcher v. Hobby, Ga., 12 S. E. Rep. 356.

105. TAXATION-Assessment.-The unauthorized alteration by assessor of tax-payer's return for assessment, made according to original survey, to a description in new survey, whereby acreage of lots returned are decreased, and lots are added to cover balance, and assessed to unknown, without notice, and a payment on lots as returned, with offer to pay all taxes due, invalidates sale of such added lots.-Lewis v. Withers, U. S. C. C. (Miss.), 44 Fed. Rep. 165.

Mortgages

106. TAXATION — Building Association. held by mutual building associations, incorporated under our general statutes, held subject to taxation, the stock of the association not having been (taxed.-State v. Redwood Falls Building & Loan Ass'n, Minn., 47 N. W. Rep. 540.

107. TAXATION-Exemption.-Act Miss. March 8, 1888, imposing certain privilege taxes on banks in lieu of all other State, county, and municipal taxes, was ex. pressly repealed by Act. Feb. 24, 1890, providing that banks should pay ad valorem taxes. On the first day of February, 1890, plaintiff bank paid for that year the privilege tax provided for by act of 1888: Held, that the assets of the bank could also be assessed for an ad

valorem tax for that year under the act of February 24, 1890, as it was competent for the legislature to impose both taxes.-Board Sup'rs Attala County v. Kelly, Miss., 8 South. Rep. 376.

108. TRIAL-Verdict.-If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to evidence, then it is the duty of the court to direct a verdict in favor of the party having this preponderance.-Peet v. Dakota Fire & Marine Ins. Co., S. Dak., 47 N. W. Rep. 532.

110. VENDOR AND VENDEE-Contract.-Time is the essence of a contract for the sale of land which provides for the payment of the purchase money in installments at specified dates, and for the execution of a good and sufficient deed by the vendor on the receipt of the final installment, and that, "in the event of a failure to comply with the terms hereof by the vendee, the vendor shall be released from all obligations in law or in equity to convey said property, and said vendee shall forfeit all right thereto."-Woodruff v. Semi-Tropic Land & Water Co., Cal., 25 Pac. Rep. 354.

111. WATER AND WATER COURSES-Estoppel.—Held, under the circumstances of the particular case, the plaintiff should not be permitted to set up her riparian interest so as to defeat the defendant's right to a certain portion of the water of Mill creek, where the diversion was made under a claim of title, and the defendant believed, and had reason to believe, that the claim was well founded, and the plaintiff stood by without asserting or making known her claim, while the defendant was expending large sums of money, and making extensive improvements under an honest and reasonable belief that it had the right to make such diversion, and without which its expenditures would prove a total loss.-Curtis v. La Grande Hydraulic Water Co., Oreg., 25 Pac. Rep. 378.

112. WILLS-Restraint of Marriage.-Testator devised to his wife all his real estate "after paying all my debts and legal charges, and paying out to my children the allowance hereafter made, so long as she remains my widow." There was no other devise of real property: Held, that the wife took the use of the real estate only during her widowhood, and that the condition in restraint of marriage was valid.-Knight v. Mahoney, Mass., 25 N. E. Rep. 971.

113. WILLS-Widow's Election.-Testator directed that his real and personal property should be converted into money, and placed at interest for his wife's use for life; at her death, certain specific legacies to be paid, and the balance to go to residuary legatees. The wife renounced the will, and elected to take under the law: Held that, for the purposes of the will this was equivalent to her death, and the remainders became immediately payable out of the part of the fund released by her election, as far as it would reach.-In re Ferguson's Estate, Penn., 20 Atl. Rep. 945.

114. WITNESS-Physicians.-Under 1 Saub. & B. Ann. St. Wis. p. 888, § 1436, providing that no physician can testify in a professional capacity unless he has received a diploma from some incorporated medical society or college, or is a member of the State or some county medical society, legally organized in the State, a physician's qualifications may be proved by his own oral testimony, without producing his diploma. Donald v. City of Ashland, Wis., 47 N. W. Rep. 434.

Mc

115. WITNESS-Transactions with Decedents. Where the defense to a suit on a note is that it was procured by fraud, the payee's agents who were guilty of such fraud, if there was any, are "person having a direct interest in the event of the suit," within the meaning of Rev. St. Ill. ch. 51, § 2.-Butz v. Schwartz, Ill., 25 N. E. Rep. 1007.

The Central Law Journal.

ST. LOUIS, FEBRUARY 27, 1891.

THE Washington Law Reporter takes issue with our criticism of the Iowa case of Crow v. Brown (32 Cent. L. J. 23), where it was held that property purchased by a pensioner with his pension money is exempt from execution and sale for his debts, under Rev. Stat. U. S., § 4747, which provides that it "shall inure wholly to the benefit of the pensioner," and thinks that we have lost sight of an important rule to be applied in the construction of a statute, viz., what is the mischief which the legislature intended to remedy, arguing that inasmuch as it was settled long before the enactment of this statute, that money, whether pension money or not, due or to become due by the United States, cannot be reached by any process of the courts, until it passes out of the control of the United States or its officers, therefore the statute can have no effect unless it applies to money after it reaches the hands of the pensioner. This idea, though plausible, is not tenable, in view of the manifest and declared intention of the statute, which was to insure the protection of pension money so long as the money remains in the pension office or its agencies, or is in the course of transmission to the pensioner. The extent of the interference of the government seems to have been, simply, to insure the actual reception of its bounty by the person entitled to it, and to prevent its diversion either by the pension officer or by the pension agent, attorney or by his guardian, or in fact by any one through whom the same is transmitted, until its actual receipt by the pensioner. The "mischief which the legislature intended to remedy" undoubtedly was, not so much to prevent attachment or levy upon the fund while in the hands of the government, as to protect the fund thereafter, and until it should "inure wholly to the benefit of the pensioner." The case of United States v. Hall, 98 U. S. 343, wherein the power of congress to exempt from execution pension money after its payment to the pensioner, was referred to and doubted, but not determined, is at least conclusive upon the question here presented, as to the inten VOL. 32-No. 9.

tion and object of the statute; for, in that case, wherein a guardian was prosecuted for embezzling his ward's pension money, it was held that the statute applied until the ward actually received the money, and the court said that these " regulations have been enacted to prevent agents, attorneys and guardians from withholding the fund until it passes into the hands of the beneficiary." And in the case of Kellogg v. Waite, 12 Allen, 530, the court held that, though the rule did not apply to the money after the same had passed into the hands of the pensioner, which question did not arise there, it was undoubtedly competent for the United States to attach such conditions as they may see fit to the grant of a pension, and to fix by law the time and manner in which the property shall finally pass to the pensioner. Upon principle and authority, there does not seem to be any other construction to be fairly placed on this statute, and we have no doubt whatever, in view of the language of the court in the Hall case, that,should the question come before the United States Supreme Court, as to the power of congress to exempt from execution pension money, after its actual receipt by the pensioner,

it would be denied.

THOUGH the leading article in this issue does not aim to consider, at length, the general subject of the power of the State to fix railroad rates, except as controlled by legislative charters, two very late decisions bearing on the general question as to the power of the State, through its legislature or through a board of railroad commissioners, to fix maximum joint rates for railroads within the State, may be read with interest in connection therewith. The first case is Wellman v. Chicago & G.T.R. Co., wherein the Supreme Court of Michigan sustains the validity of a statute of that State, which, as construed by that court, committed to the State legislature the exclusive power of fixing reasonable maximum rates for passenger transportation by the different railroads within the State. It was contended by counsel for the railroad company, that the former decisions of the United States Supreme Court had been overruled by the decision in the case of Railroad Co. v. Minn., 10 S. C. Rep. 462, in so far as the latter held that the question as to the reasonableness of a rate, is for the court and not for the legislature. The court,

however, distinguished this case, by saying that the decision rests not on the right of the legislature to declare what is a reasonable maximum rate, but upon its right to authorize a commission to do so; and that the substance of the decision in the Minnesota case is that whether or not the rates established by such commission are reasonable, is for the courts, and not for the commission. In other words,

there is a vast difference between the action and authority of a commission appointed by the legislature, and the action and authority of the legislature itself. There are many things that a legislature can do that it cannot delegate to any other body. And it would seem that, in the opinion of the Supreme Court of the United States, this is one of them. The other case referred to is Burlington, Cedar Rapids & Northern Ry. v. The Iowa Board of Railroad Comr's, which involved the question of the right of the board to fix maximum joint rates. That body promulgated such joint rates some time ago, and the railroad company refused to adopt them, and secured an injunction against the board. The case was brought on appeal to the Iowa Supreme Court, which has rendered a decision fully sustaining the position taken by the commissioners. The decision of the court is in substance that since the State may fix the maximum charges over one road, it may extend such regulations when the shipment is over two or more roads, the object being to make reasonable rates.

We

THE editor of the Albany Law Journal, seeing that Mr. Homer Greene had an article in the January number of the North American Review entitled "Can Lawyers be Honest,' bought a copy. He says that if he had known that the question was answered in the negative he would have tried to steal a copy. have read the article carefully, and do not agree that the conclusion is that lawyers can not be honest. On the contrary, the writer submits a Utopian method of practice, under which, as he thinks, lawyers will find it an easy matter to be honest, though he admits that such a system would be greatly to the lawyer's worldly disadvantage. The fact is that Mr. Greene evidently does not fully comprehend the meaning of the word "honest." With him honesty means absolute, unnecessary and uncalled for frankness. In his view

it is the duty of an attorney to advise his client not only as to his legal, but also as to his moral obligations. In other words, the lawyer should usurp the province, without the compensation, of the family pastor.

NOTES OF RECENT DECISIONS.

INSURANCE-ACTION ON POLICY-PROOF OF LOSS-ARBITRATION AND AWARD.-The Supreme Court of the United States in Hamilton v. Home Ins. Co., 11 S. C. Rep. 133, consider a question of appraisal and award as to the amount of loss on insured articles which, in some respects, resembles Hamilton v. Ins. Co., 136 U. S. 242. In the present case it appeared that a policy of fire insurance provided for an appraisal of each article damaged or destroyed by fire, which appraisal was to be submitted as part of the proofs of loss, and that, in case differences shall arise touching any loss or damage after proof thereof has been received, the matter shall be submitted to arbitrators, whose award in writing shall be binding on the parties as to the amount of loss. It was held that, where the company received proofs of loss from the insured, without objection either as to their form or substance, the refusal of the insured to submit to an award of arbitrators could not be pleaded in bar to an action on the policy, which did not contain any provision that no action should be maintained on it until after such award. Mr. Justice Gray, after noting the difference between this case and Hamilton v. Ins. Co., supra, says:

A provision in a contract for the payment of money upon a contingency that the amount to be paid shall be submitted to arbitrators, whose award shall be final as to that amount, but shall not determine the general question of liability, is undoubtedly valid. If the contract further provides that no action upon it shall be maintained until after such an award, then, as was adjudged in Hamilton v. Insurance Co., above cited, and in many cases therein referred to, the award is a condition precedent to the right of action. But when no such condition is expressed in the contract, nor necessarily to be implied from its terms, it is equally well settled that the agreement for submitting the amount to arbritration is collateral and independent: and that a breach of this agreement, while it will support a separate action, cannot be pleaded in bar to an action on principal contract. Roper v. Lendon, 1 El. & El. 825; Collins v. Locke, L. R. 4 App. Cas. 674; Dawson v. Fitzgerald, 1 Exch. Div. 257; Reed v. Insurance Co., 138 Mass. 572; Seward v. City of Rochester, 109 N. Y. 164, 16 N. E. Rep. 348; Insurance Co. v. Pulver, 126