CASES AFFIRMED OR FOLLOWED.

1. The decree below, so far as it granted the relief prayed as against the
defendants other than the city of Georgetown and the county of Scott,
is affirmed by a divided court; and, so far as it adjudicated against
the complainant and in favor of the defendants the city of George-
town and the county of Scott, those defendants not having been
parties or privies to the judgments pleaded as res judicata, is affirmed
upon the authority of the decision in Citizens' Savings Bank of Owens-
boro v. Owensboro, 173 U. S. 636. Stone v. Farmers' Bank of Kentucky,
409.

2. On the authority of Citizens' Savings Bank of Owensboro v. Owensboro,
173 U. S. 636, and Stone v. Bank of Commerce, ante, 412, the decrees
below are affirmed. Fidelity Trust and Safety Vault Co. v. Louisville,
429.

3. Third National Bank of Louisville v. Stone, Auditor, ante, 432, and Louis-
ville v. Third National Bank, ante, 435, followed. Louisville v. Citizens'
National Bank, 436.

A. CONSTITUTION OF THE UNITED STATES.

1. The provision in § 2 of c. 155 of the acts of Kansas of 1885, entitled
"An act relating to the liability of railroads for damages by fire,"
that, "in all actions commenced under this act, if the plaintiff shall
recover, there shall be allowed him by the court a reasonable attor-
ney's fee, which shall become a part of the judgment," must, for rea-
sons stated in the opinion of the court, be sustained as legislation
authorized by the Constitution of the United States. Atchison, Topeka
& Santa Fé Railroad Co. v. Matthews, 96.

2. Section 944 of the Revised Statutes of Missouri of 1889, provided that,
"Whenever any property is received by a common carrier to be trans-
ferred from one place to another, within or without this State, or
when a railroad or other transportation company issues receipts or
bills of lading in this State, the common carrier, railroad or transpor-
tation company issuing such bill of lading shall be liable for any loss,
damage or injury to such property, caused by its negligence or the
negligence of any other common carrier, railroad or transportation
company to which such property may be delivered, or over whose line
such property may pass; and the common carrier, railroad or trans-

portation company issuing any such receipt or bill of lading shall be
entitled to recover, in a proper action, the amount of any loss, damage
or injury it may be required to pay to the owner of such property,
from the common carrier, railroad or transportation company, through
whose negligence the loss, damage or injury may be sustained." In
commenting on this statute the Supreme Court of Missouri said:
"The provision of the statute is that 'wherever property is received
by a common carrier to be transferred from one place to another.'
This language does not restrict, but rather recognizes the right of the
carrier to limit its contract of carriage to the end of its own route,
and there deliver the property to the connecting carrier. There
can be no doubt, then, that under the statute, as well as under the
English law, the carrier can, by contract, limit its duty and obligation
to carriage over its own route." Held, That the statute as thus inter-
preted could not be held to be repugnant to the Constitution of the
United States. Missouri, Kansas. and Texas Railway v. McCann, 580.
3. Sturm sued the railway company in a justices' court in Kansas for
wages due, and recovered for the full amount claimed. The company
appealed to the county district court. When the case was called there
for trial, the company moved for a continuance on the ground that a
creditor of Sturm had sued him in a court in Iowa, of which State the
railway company was also a corporation, and had garnisheed the com-
pany there for the wages sought to be recovered in this suit, and had
recovered a judgment there from which an appeal had been taken
which was still pending. The motion for continuance was denied,
the case proceeded to trial, and judgment was rendered for Sturm for
the amount sued for, with costs. A new trial was moved for, on the
ground, among others, that the decision was contrary to and in con-
flict with section 1, article IV of the Constitution of the United States.
The motion was denied, and the judgment was sustained by the Court
of Appeals and by the Supreme Court of the State. The case was
then brought here. Held, that the Iowa court had jurisdiction, and
that the Kansas courts did not give to the proceedings in Iowa the
faith and credit they had in Iowa, and were consequently entitled to
in Kansas, and the judginent must be reversed. Chicago, Rock Island
and Pacific Railway Co. v. Sturm, 710.

CONTRACT.

1. The city of Portland, in Oregon, proposing to receive bids for the con-
struction of what was called the Bull Run pipe line, Hoffman of Port-
land and McMullen of San Francisco entered into a contract in
writing as follows: "This agreement, made and entered into by and
between Lee Hoffman, of Portland, Oregon, doing business under the
name of Hoffman & Bates, party of the first part, and John McMullen,
of San Francisco, California, party of the second part, witnesseth:

That, whereas, said Hoffman and Bates have with the assistance of
said McMullen at a recent bidding on the work of manufacturing and
laying steel pipe from Mount Tabor to the head works of the Bull
Run water system for Portland, submitted the lowest bid for said
work, and expect to enter into a contract with the water committee
of the city of Portland for doing such work, the contract having been
awarded to said Hoffman and Bates on said bid: It is now hereby
agreed that said Hoffman and said McMullen shall and will share in
said contract equally, each to furnish and pay one half of the expenses
of executing the same, and each to receive one half of the profits or
bear and pay one half of the losses which shall result therefrom. And
it is further hereby agreed that if either of the parties hereto shall
get a contract for doing or to do any other part of the work let or to
be let by said committee for bringing Bull Run water to Portland, the
profits and losses thereof shall in the same manner be shared and
borne by said parties equally, share and share alike." Both put in
bids for the work which forms the subject of dispute in this case.
Hoffman's bid was for $465,722. McMullen's was $514,664. There
were several other bids, but Hoffman's was the lowest of all. The
contract was awarded to him. He did the work and received the pay.
This action was brought by McMullen to recover his portion of the
profit, according to the contract. Held, that this contract was illegal,
not only as tending to lessen competition, but also because the parties
had committed a fraud in combining their interests and concealing
the same, and in submitting the different bids as if they were bona fide,
and that the court will not lend its assistance in any way towards
carrying out the terms of an illegal contract, nor will it enforce any
alleged rights directly springing from such a contract. McMullen v.
Hoffman, 639.

2. While distinguishing Brooks v. Martin, 2 Wall. 70, from this case, the
court holds that, taking that case into due consideration, it will not
extend its authority at all beyond the facts therein stated. Ib.
See TAX AND TAXATION, 2.

CONTRIBUTORY NEGLIGENCE.

A highway in the State of Washington crossed the Northern Pacific Rail-
road at about right angles. It approached the railroad through a
deep descending cut, and the track was not visible to one driving
down until he had reached a point about forty feet from it. Free-
man was driving a pair of horses in a farm wagon down this descent.
When he emerged from the cut and reached the point from which an
approaching train was visible, he was looking ahead at his horses.
A train was coming up. The conductor, the engineer, and the fire-
man testified that the whistle was blown. Three witnesses, who were
not in the employ of the railroad, and who were in a position to have

heard a whistle if it had been blown, testified that they did not hear
it. When Freeman became conscious of the approaching train, he
tried to avoid it; but it was too late, and he was struck by the train
and was killed. So far as there was any oral testimony on the sub-
ject, it tended to show that Freeman neither stopped, looked, nor
listened before attempting to cross the track. Held, That the testi-
mony tending to show contributory negligence on the part of Free-
man was conclusive, and that nothing remained for the jury, and
that the company was entitled to an instruction to return a verdict
in its favor. Northern Pacific Railroad Co. v. Freeman, 379.

COPYRIGHT.

The serial publication of a book in a monthly magazine, prior to any steps
taken toward securing a copyright, is such a publication of the same
within the meaning of the act of February 3, 1831, c. 16, as to vitiate
a copyright of the whole book, obtained subsequently, but prior to
the publication of the book as an entirety. Holmes v. Hurst, 82,

COURT AND JURY.

1. In this case the trial court at the close of the testimony, which is de-
tailed in the opinion of this court, instructed a verdict in plaintiff's
favor, which was affirmed by the Court of Appeals. This court affirms
the judgment of the Court of Appeals. Israel v. Gale, 391.

2. Spurr was tried in the Circuit Court of the United States for the Mid-
dle District of Tennessee on three indictments, consolidated together,
each of which charged him with having wilfully violated the provi-
sions of Rev. Stat. § 5208, by wilfully, unlawfully and knowingly
certifying certain cheques drawn on said bank by Dobbins and Dazey,
well knowing that Dobbins and Dazey did not have on deposit with
the bank at the times when the cheques were certified, respectively,
an amount of money equal to the respective amounts specified therein.
It was not denied that the defendant certified the cheques, and that
the account of Dobbins and Dazey was overdrawn when the certifica-
tions took place. The questions for determination were defendant's
knowledge of the state of Dobbins and Dazey's account when the
cheques were certified and his intent in the certifications. After the
case had been committed to the jury, and they had had it under con-
sideration for some hours, they returned to the court room, and asked
the following question, which was written out: "We want the law
as to the certification of cheques, when no money appeared to the
credit of the drawer." The court read to the jury the first half of
Rev. Stat. § 5208, as follows: "It shall be unlawful for any officer,
clerk or agent of any national banking association to certify any
cheque drawn upon the association unless the person or company
drawing the cheque has on deposit with the association, at the time

such cheque is certified, an amount of money equal to the amount
specified in such cheque." The court then inquired: "Does this
auswer your question?" To which the foreman replied: "Yes, sir.”
The court again read that part of the section, and made certain
observations; among others that a false certification was "the certi-
fying by an officer of the bank that a cheque is good when there are
no funds to meet it." As the jury were retiring, counsel for defend-
ant said to the court that he thought what the jury wanted was the
act of 1882 which the court had read to them, and that the court
ought to read and explain that act to the jury. That act provided
that an officer, clerk or agent of a national bank wilfully violating
the provisions of Rev. Stat. § 5208, etc., "should be deemed guilty
of a misdemeanor, and should, on conviction," "be fined," etc. The
court, after asking if the counsel referred to the act prescribing pen-
alty for false certification, and receiving an answer in the affirmative,
said that the jury had nothing to do with that. Held, that the Cir-
cuit Court clearly erred in declining the request of counsel in respect
of the act of 1882. Spurr v. United States, 728.

See EJECTMENT, 1, 4, 5.

CRIMINAL LAW.

1. On the trial of a person charged with feloniously receiving and having
in his possession, with intent to convert them to his own use, postage
stamps which had been feloniously stolen, taken and carried away
from a postoffice by three persons named, although the person so
receiving them well knew that the same had been so feloniously
taken, stolen and carried away, the judgment convicting the said
three persons of stealing the said stamps was received in evidence
against the accused, under the provision in the act of March 3, 1875,
c. 144, § 2, that such judgment "shall be conclusive evidence against
said receiver, that the property of the United States therein described
has been embezzled, stolen or purloined." The accused having been
convicted, and the case brought here by writ of error, Held, That that
provision of the statute violates the clause of the Constitution of the
United States, declaring that in all criminal prosecutions the accused
shall be confronted with the witnesses against him; and that the
judgment must be reversed. Kirby v. United States, 47.

2. The contention by the defendant that the indictment is defective in
that it does not allege ownership by the United States of the stolen
articles of property at the time that they were alleged to have been
feloniously received by him, is without merit. Ib.

3. The objection that the indictment does not show from whom the
accused received the stamps, nor state that the name of such person
was unknown to the grand jurors, is not well taken. Ib.

See COURT AND JURY.