Gambar halaman

with reasonable certainty that they can be recovered APPEAL from the Circuit Court for Howard county.

$130,000, as appeared from his examination, was an es- this agreement, and other questions incident to it in timate made by him upon the assumption that the the case. sales for the following three years would be the same, The judgment therefore entered upon the referee's or at least not less per year than they had been during report should be the short period that the agreement was carried out.

Affirmed. This could not be assumed in respect to the sales of this commodity, cousisting of manufactured silks and

NEGLIGENCE-PROXIMATE CAUSE-CANCER REcottons for the long period of three years thereafter, and

SULTING FROY INJURY-DAMAGES. the referee properly refused to find, as requested, that it appearing that the yearly sales by the firm of the

MARYLAND SUPREME COURT, DECEMBER 20, 1883.* production of their mills had been $1,000,000 annually, and the annual expenses had been $23,000, thelaw would

BALTIMORE CITY Pass Railway Co. y. KEYP. presume, in the absence of evidence to the contrary, that the future sales would have yielded the same re

In an action brought by husband and wife to recover damages

for personal injuries to wife, caused by degligence of deturns under the same expense, and that Talcott was

fendants, the wife having testified that shortly after the entitled to have his damages for loss of prospective

injury complained of, a cancer was developed at the place profits computed upon that basis.

on her person where she was injured, and medical testiThe law makes no such presumption. Profits are re. mony having been offered on both sides of the question, coverable as damages where it can be shown with rea- whether the cancer was the result of the injury, it was sonable certainty what the party would have received

held: if the contract had been fulfilled, as appears in the

1st. That it was for the jury to determine as a matter of fact leading case of Masterson v. Mayor, etc., of Brooklyn,

whether the cancer did result from the injury received. 7 Hill, 52, which the appellant cites and on which he

And in determining this question they were required to

consider all the circumstances and coincidences of the relies. The plaintiff there had a contract to furnish

case in connection with the testimony of the professional marble from a specified quarry at a specified sum for witnesses. the erection of a city hall, which, by a contract made 2d, That if the jury believed from all the evidence before with the owners of the quarry, he was to receive at a them that the cancer was the natural and proximate consmaller sum tban he was to get for the marble when sequence of the blow infiicted, by the negligent act of the delivered for use in the building. That difference con

defendant, it would properly form an element to be coostituted his profit, the whole of which prospectively

sidered in awarding damages for the pain and injury suf

fered by the female plaintiff. could be accurately ascertained by the proof of that

3d. That the fact that she may have had a tendency or predis. amount, and of the amount of marble he was by the

position to cancer, could afford no proper ground of obe contract to deliver to the defendant, and it is only in jection to her claim. such cases where the prospective profits can be shown 15

The case is stated in the opinion of the court. It may have been possible to have ascertained with

Bernard Carter aud A. W. Machen, for appellant. reasonable certainty the amount of profits that could John S. Tyson and Henry E. Wootton, for appelhave been obtained on the sale of the goods which R. lees. & H. Adams had manufactured and on hand at the time of the assignment if they had been delivered, by and wife to recover for personal injuries suffered by

ALVEY, C. J. This is an action brought by husband proof of the market price at that time and in accord

the wife, caused, as it is alleged, by the negligent ance with the referee's finding and action for damages

wrong of the defendants. for the non-delivery of these goods may have been

The trial below resulted in a verdict and judgment maintainable against the members of the firm. How

for the plaintiffs; and the defendants have appealed ever that may be, the goods were not delivered, and

for alleged errors in granting a prayer on the part of this was after the assignment simply a claim for an un. ascertaiued amount of damages which was not prova- | defendants.

the plaintiffs, aud refusing a prayer on the part of the ble under the assignment as a debt.

1. It is objected by the defendants, that the instrucThe appellant requested the referee to find – wbich

tion granted at the instance of the plaintiffs includes the referee would not-that upon the refusal of the as

and authorized the jury to find for a cause of action signee to deliver upon demand the goods manufactured

that should have been sued for by the husband alone, and on hand at the time of the assignment, he (Tal- without the joinder of the wife. We do not so read cott) was entitled in this proceeding to an order or de

the instruction. It simply directed the jury, that in cree that they make such delivery to him or account

estimating the damages, they were to consider the to him as assignee for the proceeds of these manufac

health and condition of the female plaintiff before the tured goods.

injury complained of, as compared with her condition The assignee could not be compelled to fulfill by the

at the time of the trial, in consequence of the injury; delivery of goods the unperformed contract of R. &

"and whether the injury in its nature was permaH. Adams at the time of the assignment. No author

pent, and how far it was calculated to disable her from ity or power was given them in that instrument to do

eugaging in those household pursuits and employ. 80. All the property of the firm was, I assume, as is

ments, for which in the absence of such injury she usual in such instances, conveyed to them subject to

would be qualified; and also the physical and mental the trust already referred to, to convert it into money suffering to which she was subjected, by reason of the and apply the money to the payment of the just debts

injury; and to allow such damages as in the opinion of of the firm, which was what they had to do, and all

the jury would be a fair and just compensation for the they could do.

injury which she sustained." The conclusion from what has been stated is that

Now according to the common law upon this subTalcott's claim does not come under this trust, be

ject, it is perfectly well settled, that in an action cause it was not a debt, but a claim for damages unas

brought for personal injuries suffered by the wife, the certained, which is sufficient to dispose of this appeal husband and wife must join, and the declaration must without deciding whether the referee was right or wrong in holding that the making of a general assign- conclude to their damage. But in such action care ment for the benefit of creditors was not a breach of

*To appear in 61 Maryland Reports.

tbis case,

should be taken that'there be not included any cause cancer in any given case, yet they all agree in saying ot action for which the husband should sue alone; as that the blow, such as that described by Mrs. Kemp, for instance, for loss of services, expenses incurred, was sufficient and may have been the cause of the and the like. Dengate v. Gardiner, 4 M. & W. development of the cancer in her case. In the opin6; Stoop v. Swarts, 12 Serg. & R. 76; 1 Chitt. ion of two of the physicians, Dr. Latimer and Dr. Pl. 82, 83. In the instruction before us refer- Turner, the blow on the breast, as described by Mrs. ence is made to the disability of the wife to perform Kemp, was not only sufficient cause for the produchousehold duties, but that was only by way of con- tion of the cancer, but that they would attribute the trasting her former with her present condition of cancer to that cause. And from the coincideuces of health. The jury were not directed or authorized, in the case we must say that their opinion does not apestimating the damages, to allow for the loss of ser- pear to be unreasonable. vices of the wife while suffering under the disability Now with this evidence in the case, unless the court occasioned by the injury. The instruction, in terms, could have been required to hold, as matter of law, confined the damages to be awarded to compensation that the production of cancer was too uncertain and for the personal injury sustained by the wife; and too remote a consequence of the alleged injury to be there was nothing embraced for which the husband allowed to be considered in estimating the damages, could have sued alone. The action was brought be- upon what principle could the court properly withhold fore the passage of the act of 1882, ch. 265, which pro- the matter from the jury, upon the prayer offered by vides, “that any married woman may sue in any the defendants? It was for the jury to determine, as court of law or equity in this State, upon auy cause of matter of fact, whether the cancer did result from the action, in her own name, and without the necessity of injury received. And in determining this question they a prochein ami, as if she were feme sole ;” and there- were required to consider all the circumstances and fore it is unuecessary to consider whether that act ex- coincidences of the case, in connection with the testitends to a case like the present.

mony given by the professional witnesses. If there. 2. The second prayer offered by the defendants, and fore the subject was proper to be cousidered by the which was refused by the court, asked that the jury jury at all, we are clearly of opinion that there was be instructed that there was no legally sufficient evi. evidence sufficient to be considered by them. dence that the cancer, testified to by the witnesses, Now the question is, whether the production of canwas caused by the negligence of the defendants, and cer, as the result of any injury received by the neglitherefore they should not take the cancer into cousid- gence of the defendants, under the circumstances of eration in estimating any damages that they might

be too remote a cousequence from such negaward to the female plaintiff. Aud upon this prayer ligence, to form an element of damage to the plaintiff. for instruction, the defendauts contend, 1st. That If it be not, then clearly the court below committed there was no evidence, legally sufficient to be consid- no error in refusing the second prayer of the defendered by the jury, that the cancer of which Mrs. Kemp ants. suffered was the natural result or consequence of the It is not simply because the relation of cause and negligence complained of; and 2d, that if there was in effect may be somewhat involved in obscurity, and fact, any causal connection between the immediate therefore difficult to trace, that the principle obtains, injury received by Mrs. Kemp and the subsequent de- that only the natural and proximate results of a velopment of the cancer, the latter, to be treated as a wrongful act are to be regarded. It is only where legal effect, was too obscure, and too remote from the there may be a more direct and immediate sufficient alleged cause, to form an element of damage for the cause of the effect complained of, that the more reoriginal wrongful act.

mote cause will not be charged with the effect. If a We shall not recite in detail all the evidence upon given result can be directly traced to a particular the subject. Suffice it to state, that the evidence cause, as the natural and proximate effect, why should shows clearly and without contradiction, that Mrs. not such effect be regarded by the law, even though Kemp was, at the time of the accident, and for many such causo may not always, and under all condition years prior thereto, apparently in good health and con- of things, produce like results? It is the common dition. The accident occurred about the middle of observation of all, that the effects of personal physical May, 1880, and a very short time thereafter the cancer injuries depend much upon the peculiar conditions commenced its development on the injured part of and tendencies of the persons injured ; and what may her person. In ber testimony, after describing the produce but slight and comparatively uninjurious manner in which the accident occurred, and how she cousequences in one case, may produce consequences was thrown against the railing on the platform of the of the most serious and distressing character in car, as she was about getting off, and the hurting of another. And this being so, a wrong-doer is not perher right arm and left breast, she states that the right mitted to relieve himself from responsibility for the arm was bruised and discolored; and “where the consequences of his act, by showing that the injury breast was struck it was sore, and remained so from would have been of less severity if it had been inflicted that time out. Prior to that time she had no pain or upou any one else of a large majority of the human soreness; and two or three weeks afterward, a small family. Hence the general rule is, that in actions of lump appeared in the left breast,” which upon being tort like the present the wrong-doer is liable for all shown to her physicians, was pronounced to be a can- the direct injury resulting from his wrongful act, and cer. Dr. Smith first operated for its removal on the that too although the extent or special nature 8th of November, 1880, when it was about the size of of the resulting injury could not, with certainty, an orange, and he operated again about the 12th of have been foreseen or contemplated as the probable January, 1881, when the entire breast was removed, result of the act done. 3 Suth. on Dam. 714, 715, and but without success in extirpating the roots of the the cases there cited. disease. The cancer still remains, and is pronounced The general rule is stated by Addison, in his work to be incurable. The two daughters of Mrs. Kemp, in on Torts (3d ed.), p. 5, with as much clearness and their testimony, fully corroborate the statement of precision as will be found in any other text writer, their mother, in regard to her previous good health and he states the rule to be," that whoever does an and apparent freedom from disease, and the subse- illegal act is answerable for all the consequences that quent appearance and growth of the cancer. And the eusue in the ordinary and natural course of events, professional witnesses, while they all testify that it is though those consequences be immediately and diimpossible to know and be certain as to the origin of | rectly brought about by the intervening agency of


others, provided the intervening agents were set in NOTE.-In Stewart v. City of Ripon, 38 Wis. 584, motion by the primary wrong-doer, or provided their cited in principal case, it was held that “the publio acts causing the damage were the necessary or legal streets and sidewalks of a city are for the use of the and natural consequence of the original wrongful act." sick and iufirm, and those with organic predisposition If therefore the jury believed from all the evidence to disease, as well as for that of the healthy and robefore them, that the cancer in the breast of Mrs. bust; and the corporation is chargeable with knowlKemp was the natural and proximate consequence of edge that persons of the former classes constantly the blow received on her breast, by the negligent act travel its highways, and that a bodily injury to such of the defendants, it would properly form an element from a defective highway may be greatly aggravated to be considered in awarding damages for the pain and by their diseased condition. If therefore the diseased injury suffered by her.

coudition of plaintiff's arm would not have occurred If by the blow received a severe contusion had been but for his organic tendency to scrofula, still defendproduced, resulting in an ordinary tumor or open ant's negligence must be regarded as the proximate ulcer, we suppose no question would have been raised cause of the whole injury." as to the right of the plaintiff to show such results of In Oliver v. Town of La Valle, 36 Wis. 592,"plaintiff, the injury received, as indicating the extent of the who was a married woman, and pregnant, was riding injury and the degree of suffering endured. Why with her brother, and when crossing a defective bridge should a different rule be applied to this case? That in a public highway the team broke through the bridge. the female plaintiff may have had a tendency or pre- The plaintiff jumped from the wagon and assisted her disposition to cancer, can afford no proper ground of brother in an attempt to extricate the team. Failing objection.

in this at the request of her brother she ran some disShe in common with all other people of the commu- tance to obtain more assistance. The result of her uity had a right to travel or be carried in the cars of fright and exertions was a miscarriage. She brought the defendants, and she had a right to enjoy that priv- au action against the town, and the principal damages ilege without incurring the peril of receiving a wrong. proved on the trial were the consequences of such misful injury that might result in inflaming and develop carriage. It was held that such damages were the ing the dormant germs of a fatal disease. It is not proximate result of the negligence of the towu, for the defendants to say that because they did uot, or and a verdict and judgment therefor were could not in fact, anticipate such a result of their neg- tained." ligent act, they must therefore be exonerated from In Brown v.Chicayo,etc.,R.Co.,54 Wis.342, the railway liability for such consequences as ensued. They must company's servants by mistake told a husband and be taken to know, and to contemplate, all the natural wife to get off at the wrong place. The wife was pregand proximate consequences, vot only that certainly nant. The walking to reach a place of comfort brought would, but that probably might flow from their on a miscarriage. The court held that in an action wrongful act.

against the carrier for breach of duty, instead of on The defendants must be supposed to know that it its contract, it was liable for the injuries resulting was the right of all classes and conditious of people, from such miscarriage. whether diseased or otherwise, to be carried in their In Eten v. Luyster, 60 N. Y. 253, 259, 260, affirming cars, and it must also be supposed that they knew 37 N. Y. Super. Ct. 486, this court held that where that a personal injury inflicted upon any one with defendants tore down and destroyed a building built predisposition or tendency to cancer, might and prob- by defendant, in which plaintiff had a sum of money ably would, develop the disease. See case of Stewart in a box, which was lost in the removal, that plaintiff v. City of Ripon, 38 Wis. 584.

was not bound to gather up the fragments of his scatThe defendants have cited and relied upon the case tered and broken chattels, but was at liberty to leave of Hobbs V. Landon & South-western R. Co., L. them where defendants placed them, looking to them R., 10 Q. B. 111; 11 Eng. Rep. 181, as maintaining a for their value; that plaintiff was entitled to recover doctrine different from that just stated by us. But in for all losses occasioned bp the trespass, including the several respects that case is quite different from this. destruction of the building, the loss of the money, and In the first place, that was an action upon contract, the value of the unexpired term; that although the seeking a recovery for a breach thereof. There a pas.

money was kept in an unusual place, and defendants senger, who had been set down with his wife at a

may not have suspected its presence, yet that they wrong station, sought to recover from the railway were liable for its loss, which was the direct result of company damages for a cold which his wife had taken

their acts." in consequence of the exposure in having to walk Iu Pullman Palace Car Co. v. Barker, 4 Col. 344; 34 home in the rain. And it was held that the loss so oc- Am. Rep. 89, 92 note, defendant's palace car, in which casioned was not so connected with the breach of con- plaintiff was sleeping, was burned, through the neglitract as that the carrier breaking the contract would gence of defendant's servants. The buruing was so be liable.

rapid that she had not time to properly clothe herself, As said by the court, the catching cold by the plaint- and she left it in her stocking feet. In doing so she iff's wife was not the immediate and necessary effect

was compelled to stand for a short time on the plat. of the breach of contract, or was not such an effect as

form of another car, and caught a severe cold which could fairly be said to have been in the contemplation caused a cessation of her menses and resulted in a of the parties. But we suppose, with Mr. Mayne, in long period of illness. The court said (p. 347): “Conhis work on Damages, p. 73 (Wood's ed.), that that case

ceding that the appellee was compelled on account of would have been differently decided, if instead of put- the smoke and flames to leave the car in the half-clad ting the plaintiff down safely at the wrong place, the condition she did, the exposure to the cold was the company had by their negligence caused any personal direct and necessary result of the appellant's negliinjury to him.

gence. Her subsequent illness however was not the Without therefore intimating that we should ac- result of the exposure, but the result of the exposure cept the decision as an authority in any case, we in her then condition." think it has no direct application to the case before

That case was expressly disapproved in Broun v. us.

Chicago, etc., 54 Wis. 360, the court saying: Concurring with the court below in its rulings ex

“ There is, I think, but one case cited by the learned cepted to, we must atfirm the judgment. Stone, J., dissents.

counsel for the appellant which appears to be in direct Judgment affirmed.

conflict with this view of the case, except those which


relate to the breaches of contract, and that is the Pull- to give just results and to effectuate the intention of man Palace Car Co. v. Barker, 4 Col. 344. This case the law makers. People v. Com'rs of Taxes. Opinion is, we think, unsustained by authority, and is in direct by Earl, J. conflict with the decisions of this court in the cases of [Decided April 15, 1884.) Stewart v. Ripon, and Oliver y. Town of Le Valley, supru. This decision is, it seems to me, supported by

ATTACHMENT_TITLE OF SHERIFF UNDER-TRANSthe principles of neither law nor humanity. It in ef

FER BEFORE LEVY. - - Plaintiff, as assignee of a fect says, that if an individual unlawfully compels a

bond and mortgage given to secure a note, brought sick and enfeebled person to expose himself to the

suit to foreclose. The answer of two defendants, cold and storm to escape worse consequences from his

makers of the mortgage, set up as a defense that the wrongful act, he cannot recover damages from the

mortgage and note had been attached by the sheriff, wrong-doer because it was his sick and enfeebled con

and were in his possession. It appeared that after the dition which rendered his exposure injurious. Cer

levy under the attachment the mortgage was assigned tainly such a doctrine does not commend itself to

to plaintiff. Held, that the sheriff acquired no title to those kinder feelings which are common to humanity,

the property assigned. Under the earlier provisions and I know of no other case which sustains its conclu

of the Code a levy upon property capable of manual sions."

delivery, executed by taking it into the actual possesFor another cancer case see Jewell v. Railway, 55 N.

sion of the officer, invested him with the right in deH. 84.-ED.

feuse of his levy to assail as fraudulent and void against creditors a previous assignment or transfer

which threatened by its priority the security of the NEW YORK COURT OF APPEALS ABSTRACT.

lien obtained. Rinchey v. Stryker, 28 N. Y. 45. But

this court also held as to the levy permitted to be TAXATION-CORPORATION-DEDUCTION—"ASSESSED made upon choses in action that the attachment VALUE."-(1) Writ of certiorari directed to defendants reached and became a lien upon only such debts as at for the purpose of reviewing their action in assessing the time belonged to the debtor by a legal title, and the capital stock of the relator for the years 1882. The for the recovery of which he could maintain an action relator claims that the amount of the capital stock to at law, and as a consequence, where before levy of the be subjected to taxation should be the residue after attachment he bad parted with the legal title even deducting from the par amount, $600,000, the sum of with intent to defraud his creditors, there remained 405,000 expended in real estate, which would leave in him for their benefit only au equity which the atonly $195,000 assessable as personal estate. The de- tachment could not reach, and so the sheriff could not fendants however claimed that as the stock was at assail the transfer as fraudulent. The doctrine of least fifty per cent above par, and that as the whole Thurber v. Blanck, 50 N. Y. 80, went to that extent, Falue thereof, estimated according to its selling price, and has since been approved. Castle v. Lewis, 78 N.Y. was $900,000, and it not appearing that the real estate 137; Wait on Fraud. Convey., $ 86. These authorities purchased was of any greater value than the amount establish that the sheriff in the case before us could paid for it, it was proper to deduct such amount from not avoid as fraudulent the transfer or the note and its the actual value of the capital stock estimated accord- collateral made prior to his asserted levy unless their ing to its selling price. Held, that under the provis- doctrine is made inapplicable by the change in the proions of the act of 1857, ch. 456, in relation to the taxa- vision of the Code, section 649. This provision changed tion of corporations liable to taxation, for the purpose merely the mode of making the levy, but in no respect of taxing the capital stock of a corporation, it is to be altered the inherent character of the property sought "assessed at its actual value," from which is to be de- to be attached. The note is not turned into a chatducted “the assessed value of the real estate," and tel by the new provision. It remains a chose in action, sach other items as are specified in the act. (2) The and when the legal title is in the attachment debtor the provisions of the statutes regulating the details of as- debt may be seized by taking the note or bond which sessments of the property of corporations (1 Rev. Stat. is its evidence, but when the legal title has been trans415, $ 6, as amended by act of 1853, ch. 564) are to be ferred to a third party, and is not in the debtor to be deemed amended so for as is necessary to make them attached, the possession of the note by the officers unconform to and give effect to the act of 1857. A con- der his warrant accomplishes nothing. On the asstruction of a statute which leads to an absurd conse- sumption therefore that no levy was made until after quence must always be avoided, as an absurd purpose the transfer of the note the attachment gave the offiis not to be attributed to the law makers. Com. v. cers no right to assail or control it. The levy did not Kimball, 24 Pick. 370. It will not always be easy to relate back to the time of making the demand, which determine the assessed value of the real estate to be was before the assignment was made. Until the offideducted from the actual value of the capital stock- cer has obtained the actual custody he has no levy, There can be no difficulty when the real estate is situ. and can make none. In Bills v. Nat. Park Bank, 89 ated in the same ward or town where the capital stock N. Y. 351, the effect of sections 648 and 649 of the Code is assessable, or even when it is situated in the same were not considered. Anthony v. Wood. Opinion by city or county. In most cases it will thus be situated, Finch, J. (29 Hun, 239, reversed.) but if it is not, aud is yet within the State, it will not [Decided June 3, 1884.) be impracticable to ascertain its assessed value from assessment rolls always accessible. But if the real es

NEGLIGENCE-BURDEN OF PROOF-POSTAL CLERKtate sbould be in another State or country,or if for any

RIDING ON PASS.---Plaintiff's husband, who was a other reason its assessed value cannot be obtained, postal clerk in the employ of the government, which then as the best and nearest substitute for it the price had a contract with defendant for the carriage of its paid as the presumed value in the absence of proof or

mails, and the person baving them in charge, obof any other standard, may be taken as the assessable tained a pass, by the terms of which defendant was not Falue. We have not orerlooked the fact that some of

to be liable under any circumstances, whether of negthese views are in conflict with those expressed by ligence by their agents or otherwise, for any injury to Mason, J., in the case of People v. Board of Assessors,

the person, and this pass was in his possession at 39 N. Y. 81. All that was there said was not necessary

the time of his death, which occurred in consequence to the decision of that case, and we think the cou

of the negligent derailing of the train on which he was struction we have given to the statutes is more likely riding. Held, that plaintiff was entitled to recover.

We think the court committed no error in refusing to charge that “the burden of proof is on the plaintiff to establish the negligence of the defendant." While it is is true as a general proposition that the burden of showing negligence on the part of the defendant occasioning an injury, rests in the first instance upon the plaintiff, yet in an action of this character, when he has shown a situation which could not have been produced except by the operatiou of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault. Caldwell v. N. J. Steamboat Co., 47 N. Y. 291 ; Edgerton v. N. Y. & Har. R. Co., 39 id. 2:37 ; Curtis v. R. & S. R. Co., 18 id. 534. The court charged that the defendant was bound to show and give some explanation of the cause of the accident. This portion of the charge must be understood in reference to the facts of this case and as applied to such facts. In this view it was not'erroneous." See also the J. Russell Mfg. Co. v. N. H. Steamboat Co., 50 N. Y. 121; Mullen v. St. John, 57 id. 572; 15 Am. Rep. 530; Ginua v. Second Ave. R. Co., 67 N. Y. 597. (2) The defendant owed the same degree of care to the clerks and mail agents riding in the postal car, in charge of the mails, as they did to passengers riding upon the train. That question was decided in the case of Nolton v. Western Ry. Co., 15 N. Y. 444, and Blair v. Erie Ry. Co., 66 id. 313; 23 Am. Rep. 55, and we see no reason for questioning the correctness of the disposition then made of the question. The opinion in the case of the Perusylvania R. Co. v. Price, 56 Penn. St. 256, not only does not conflict with the doctrine of these cases, but cites with approval the Nolton case. (3) The pass was a mere voucher issued for the convenience of the agent and the informatiou of the employees of the defendant, and did not in any seuse constitute contract between the defendant and the person using it, and the agent's acceptance thereof under the circumstauces of this case did not indicate an intention to assent to the provisions 'therein contained, and even if it might be so construed that the want of a consideration for such an agreement rendered it nudum pactum. A promise by one party to do that which he is already under a legal obligation to perform, has frequently been held to be insufficient as a consideration to support a contract. Vanderbilt v. Schreyer, 91 N. Y. 392. Seybolt v. N. Y., etc., R. Co. Opinion by Ruger, C. J. (Decided April 15, 1884.)

promise attaches to the consideration so performed. and renders the promisor liable. Rapallo,J., again writing the opinion of the court, said : “After the promisor has had the benefit of the consideration for which he bargained, it is no defense to say that the promisee was not bound by the contract to do the act. In Marie v. Garrison, 83 N. Y. 26, Andrews, J., commenting on the same rule said: “When a defendant has actually received the consideration of an agreement by a volunttary performance of an act by the other party, upon his proposition or suggestion, such performance constitutes a consideration which will uphold the defendant's promise," and that it was not essential to the existence of a consideration for the defendant's agreement that mutuality of obligation should have existed between the parties when this agreement was made. See also Train v. Gold, 5 Pick. 380; Willetts v. Sun Mut. Life Ips. Co., 45 N. Y, 45; Sauds và Crooke, 46 id. 564; Barnes v. Perrine, 9 Barb. 202; L'Amoreux v. Gould, 7 N. Y. 349. (3) Plaintiff was entitled to recorer the full amount of the note, although that was much greater than the real value of the services; and for such a rule the cases of Worth v. Case, 42 N. Y. 369, and Earl v. Peck, 64 id. 596, are ample authority. Vit. ler v. McKenzie. Opinion by Earl, J. [Decided April 22, 1884.)




PUBLIC LAND-RIGHT OF PRE-EMPTION-LEGAL REPRESENTATIVES.—The legal representative of one who bad settled on land in anticipation of the time when it would be opened for pre-emption, and lived and died on it, may upon pre-emption becoming possible, bare the title to such land made complete in him, and bis rights cannot be affected by a stranger who meantime occupies the land for the purpose of defeating him. Quinn v. Chapman. Opinion by Miller, J. [Decided April 21, 1884.]

JURISDICTION-QUESTION NOT PRESENTED TO STATE COURT.---This was a suit brought by the Santa Cruz Railroad Company to require the board of commissioners of the county of Santa Cruz to deliver certain bouds, claimed to be due from the county under a contract with the railroad company. The defenses were, 1, that the contract was unilateral, and therefore not binding on the county; 2, that the board of supervisors exceeded its authority in making the contract; and 3, that a repealing statute, passed after the contract was entered into, took away the power of the board to make any further deliveries of bonds. No objection whatever was made to the validity of the statute under which the board assumed to act in making the contract. The whole defense rested on the construction and effect to be given to certain statutes, which no one denied the constitutional power of the Legislature to enact. The ground of Federal jurisdiction, relied on in the brief of counsel for the county is,

that by the issuance of the bonds demanded in this proceeding, the State would deprive the tax-payers of the county of Santa Cruz of property without due process of law, contrary to the right, privilege, or immunity secured by the first section of the Fourteenth amendment of the Constitution of the United States." That was not the question presented to or decided by the State court. In that court the inquiry was, whether the proceedings of the board to charge tbe county were according to law; not whether the law, uuder which the proceedings were had, was constitutional and binding on the tax-payers. The State court decided that the proceedings were in accordance with the requirements of the law, and thus created an obli.

NEGOTIABLE INSTRUMENT-CONSIDERATION EVIDENCE-PERFORMANCE IN FUTURE-MEASURE OF RECOVERY.- (1) A statement in a promissory note that it was given for money loaned is not conclusive; it is open to either party to show the actual consideration. I Pars. N. & B. 194; Abbott v. Hendricks, 1 M. & G. 791; Wheeler v. Billings, 38 N. Y. 263; Arnot v. Erie Ry. Co., 67 id. 321. (2) A promissory note, given in consideration of future services to be rendered by the payee, upon the rendition of the services in reliance thereon becomes valid and binding, although there was no agreement at the time of the giving of the note upon the part of the payee to render the services, and although the amount of the note be much greater that the value of the services.

Iu Cottage Street Church v. Kendall, 121 Mass. 5:29, Gray, C. J., said: “Where one promises to pay another a certain sum of money for doing a particular thing, which is to be done before the money is paid, and the promisee does the thing upon the faith of the promise, the promise, which was before a mere revocable offer, thereby becomes a complete contract upon a consideration moving from the promise to the promisor." In White v. Baxter, 71 N. Y. 254, it was held that wbere one, acting on the faith of a promise, performs the condition upou which the promise was made, the

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