$130,000, as appeared from his examination, was an estimate made by him upon the assumption that the sales for the following three years would be the same, or at least not less per year than they had been during the short period that the agreement was carried out. This could not be assumed in respect to the sales of this commodity, consisting of manufactured silks and cottons for the long period of three years thereafter, and the referee properly refused to find, as requested, that it appearing that the yearly sales by the firm of the production of their mills had been $1,000,000 annually, and the annual expenses had been $23,000, the law would presume, in the absence of evidence to the contrary, that the future sales would have yielded the same returns under the same expense, and that Talcott was entitled to have his damages for loss of prospective profits computed upon that basis.

The law makes no such presumption. Profits are recoverable as damages where it can be shown with reasonable certainty what the party would have received if the contract had been fulfilled, as appears in the leading case of Masterson v. Mayor, etc., of Brooklyn, 7 Hill, 52, which the appellant cites and on which he relies. The plaintiff there had a contract to furnish marble from a specified quarry at a specified sum for the erection of a city hall, which, by a contract made with the owners of the quarry, he was to receive at a smaller sum than he was to get for the marble when delivered for use in the building. That difference constituted his profit, the whole of which prospectively could be accurately ascertained by the proof of that amount, and of the amount of marble he was by the contract to deliver to the defendant, and it is only in such cases where the prospective profits can be shown

this agreement, and other questions incident to it in the case.

The judgment therefore entered upon the referee's report should be Affirmed.

NEGLIGENCE-PROXIMATE CAUSE-CANCER RESULTING FROM INJURY-DAMAGES.

MARYLAND SUPREME COURT, DECEMBER 20, 1883.*

BALTIMORE CITY PASS RAILWAY Co. v. KEMP.

In an action brought by husband and wife to recover damages for personal injuries to wife, caused by negligence of defendants, the wife having testified that shortly after the injury complained of, a cancer was developed at the place on her person where she was injured, and medical testimony having been offered on both sides of the question, whether the cancer was the result of the injury, it was held:

1st. That it was for the jury to determine as a matter of fact whether the cancer did result from the injury received. And in determining this question they were required to consider all the circumstances and coincidences of the case in connection with the testimony of the professional witnesses.

So.

All the property of the firm was, I assume, as is usual in such instances, conveyed to them subject to the trust already referred to, to convert it into money and apply the money to the payment of the just debts of the firm, which was what they had to do, and all they could do.

The conclusion from what has been stated is that Talcott's claim does not come under this trust, because it was not a debt, but a claim for damages unascertained, which is sufficient to dispose of this appeal without deciding whether the referee was right or wrong in holding that the making of a general assignment for the benefit of creditors was not a breach of

PPEAL from the Circuit Court for Howard county. The case is stated in the opinion of the court. Bernard Carter aud A. W. Machen, for appellant. John S. Tyson and Henry E. Wootton, for appellees.

and wife to recover for personal injuries suffered by ALVEY, C. J. This is an action brought by husband the wife, caused, as it is alleged, by the negligent wrong of the defendants.

The trial below resulted in a verdict and judgment for the plaintiffs; and the defendants have appealed for alleged errors in granting a prayer on the part of the plaintiffs, and refusing a prayer on the part of the defendants.

1. It is objected by the defendants, that the instruction granted at the instance of the plaintiffs includes and authorized the jury to find for a cause of action without the joinder of the wife. We do not so read that should have been sued for by the husband alone, the instruction. It simply directed the jury, that in estimating the damages, they were to consider the health and condition of the female plaintiff before the injury complained of, as compared with her condition at the time of the trial, in consequence of the injury; "and whether the injury in its nature was permanent,and how far it was calculated to disable her from engaging in those household pursuits and employments, for which in the absence of such injury she would be qualified; and also the physical and mental suffering to which she was subjected, by reason of the injury; and to allow such damages as in the opinion of the jury would be a fair and just compensation for the injury which she sustained."

Now according to the common law upon this subject, it is perfectly well settled, that in an action brought for personal injuries suffered by the wife, the husband and wife must join, and the declaration must conclude to their damage. But in such action care *To appear in 61 Maryland Reports.

should be taken that there be not included any cause of action for which the husband should sue alone; as for instance, for loss of services, expenses incurred, and the like. Dengate v. Gardiner, 4 M. & W. 6; Stoop v. Swarts, 12 Serg. & R. 76; 1 Chitt. Pl. 82, 83. In the instruction before us reference is made to the disability of the wife to perform household duties, but that was only by way of contrasting her former with her present condition of health. The jury were not directed or authorized, in estimating the damages, to allow for the loss of services of the wife while suffering under the disability occasioned by the injury. The instruction, in terms, confined the damages to be awarded to compensation for the personal injury sustained by the wife; and there was nothing embraced for which the husband could have sued alone. The action was brought before the passage of the act of 1882, ch. 265, which provides, "that any married woman may sue in any court of law or equity in this State, upon any cause of action, in her own name, and without the recessity of a proche in ami, as if she were feme sole; and therefore it is unnecessary to consider whether that act extends to a case like the present.

2. The second prayer offered by the defendants, and which was refused by the court, asked that the jury be instructed that there was no legally sufficient evidence that the cancer, testified to by the witnesses, was caused by the negligence of the defendants, and therefore they should not take the cancer into consideration in estimating any damages that they might award to the female plaintiff. And upon this prayer for instruction, the defendants contend, 1st. That there was no evidence, legally sufficient to be considered by the jury, that the cancer of which Mrs. Kemp suffered was the natural result or consequence of the negligence complained of; and 2d, that if there was in fact, any causal connection between the immediate injury received by Mrs. Kemp and the subsequent development of the cancer, the latter, to be treated as a legal effect, was too obscure, and too remote from the alleged cause, to form an element of damage for the original wrongful act.

We shall not recite in detail all the evidence upon the subject. Suffice it to state, that the evidence shows clearly and without contradiction, that Mrs. Kemp was, at the time of the accident, and for many years prior thereto, apparently in good health and condition. The accident occurred about the middle of May, 1880, and a very short time thereafter the cancer commenced its development on the injured part of her person. In her testimony, after describing the manner in which the accident occurred, and how she was thrown against the railing on the platform of the car, as she was about getting off, and the hurting of her right arm and left breast, she states that the right arm was bruised and discolored; and "where the breast was struck it was sore, and remained so from that time out. Prior to that time she had no pain or soreness; and two or three weeks afterward, a small lump appeared in the left breast," which upon being shown to her physicians, was pronounced to be a cancer. Dr. Smith first operated for its removal on the 8th of November, 1880, when it was about the size of an orange, and he operated again about the 12th of January, 1881, when the entire breast was removed, but without success in extirpating the roots of the disease. The cancer still remains, and is pronounced to be incurable. The two daughters of Mrs. Kemp, in their testimony, fully corroborate the statement of their mother, in regard to her previous good health and apparent freedom from disease, and the subsequent appearance and growth of the cancer. And the professional witnesses, while they all testify that it is impossible to know and be certain as to the origin of

cancer in any given case, yet they all agree in saying that the blow, such as that described by Mrs. Kemp, was sufficient and may have been the cause of the development of the cancer in her case. In the opinion of two of the physicians, Dr. Latimer and Dr. Turner, the blow on the breast, as described by Mrs. Kemp, was not only sufficient cause for the production of the cancer, but that they would attribute the cancer to that cause. And from the coincidences of the case we must say that their opinion does not appear to be unreasonable.

Now with this evidence in the case, unless the court could have been required to hold, as matter of law, that the production of cancer was too uncertain and too remote a consequence of the alleged injury to be allowed to be considered in estimating the damages, upon what principle could the court properly withhold the matter from the jury, upon the prayer offered by the defendants? It was for the jury to determine, as matter of fact, whether the cancer did result from the injury received. And in determining this question they were required to consider all the circumstances and coincidences of the case, in connection with the testimony given by the professional witnesses. If therefore the subject was proper to be considered by the jury at all, we are clearly of opinion that there was evidence sufficient to be considered by them.

Now the question is, whether the production of cancer, as the result of any injury received by the negligence of the defendants, under the circumstances of this case, be too remote a cousequence from such negligence, to form an element of damage to the plaintiff. If it be not, then clearly the court below committed no error in refusing the second prayer of the defend

ants.

It is not simply because the relation of cause and effect may be somewhat involved in obscurity, and therefore difficult to trace, that the principle obtains, that only the natural and proximate results of a wrongful act are to be regarded. It is only where there may be a more direct and immediate sufficient cause of the effect complained of, that the more remote cause will not be charged with the effect. If a given result can be directly traced to a particular cause, as the natural and proximate effect, why should not such effect be regarded by the law, even though such cause may not always, and under all condition of things, produce like results? It is the common observation of all, that the effects of personal physical injuries depend much upon the peculiar conditions and tendencies of the persons injured; and what may produce but slight and comparatively uninjurious consequences in one case, may produce consequences of the most serious and distressing character in another. And this being so, a wrong-doer is not permitted to relieve himself from responsibility for the consequences of his act, by showing that the injury would have been of less severity if it had been inflicted upon any one else of a large majority of the human family. Hence the general rule is, that in actions of tort like the present the wrong-doer is liable for all the direct injury resulting from his wrongful act, and that too although the extent or special nature of the resulting injury could not, with certainty, have been foreseen or contemplated as the probable result of the act done. 3 Suth. on Dam. 714, 715, and the cases there cited.

The general rule is stated by Addison, in his work on Torts (3d ed.), p. 5, with as much clearness and precision as will be found in any other text writer, and he states the rule to be, "that whoever does an illegal act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately and directly brought about by the intervening agency of

others, provided the intervening agents were set in motion by the primary wrong-doer, or provided their acts causing the damage were the necessary or legal and natural consequence of the original wrongful act." If therefore the jury believed from all the evidence before them, that the cancer in the breast of Mrs. Kemp was the natural and proximate consequence of the blow received on her breast, by the negligent act of the defendants, it would properly form an element to be considered in awarding damages for the pain and injury suffered by her.

If by the blow received a severe contusion had been produced, resulting in an ordinary tumor or open ulcer, we suppose no question would have been raised as to the right of the plaintiff to show such results of the injury received, as indicating the extent of the injury and the degree of suffering endured. Why should a different rule be applied to this case? That the female plaintiff may have had a tendency or predisposition to cancer, can afford no proper ground of objection.

She in common with all other people of the community had a right to travel or be carried in the cars of the defendants, and she had a right to enjoy that privilege without incurring the peril of receiving a wrongful injury that might result in inflaming and developing the dormant germs of a fatal disease. It is not for the defendants to say that because they did not, or could not in fact, anticipate such a result of their negligent act, they must therefore be exonerated from liability for such consequences as ensued. They must be taken to know, and to contemplate, all the natural and proximate consequences, not only that certainly would, but that probably might flow from their wrongful act.

The defendants must be supposed to know that it was the right of all classes and conditions of people, whether diseased or otherwise, to be carried in their cars, and it must also be supposed that they knew that a personal injury inflicted upon any one with predisposition or tendency to cancer, might and probably would, develop the disease. See case of Stewart v. City of Ripon, 38 Wis. 584.

The defendants have cited and relied upon the case of Hobbs v. Landon & South-western R. Co., L. R., 10 Q. B. 111; 11 Eng. Rep. 181, as maintaining a doctrine different from that just stated by us. But in several respects that case is quite different from this. In the first place, that was an action upon contract, seeking a recovery for a breach thereof. There a passenger, who had been set down with his wife at a wrong station, sought to recover from the railway company damages for a cold which his wife had taken in consequence of the exposure in having to walk home in the rain. And it was held that the loss so occasioned was not so connected with the breach of contract as that the carrier breaking the contract would be liable.

As said by the court, the catching cold by the plaintiff's wife was not the immediate and necessary effect of the breach of contract, or was not such an effect as could fairly be said to have been in the contemplation of the parties. But we suppose, with Mr. Mayne, in his work on Damages, p. 73 (Wood's ed.), that that case would have been differently decided, if instead of putting the plaintiff down safely at the wrong place, the company had by their negligence caused any personal injury to him.

Without therefore intimating that we should accept the decision as an authority in any case, we think it has no direct application to the case before

NOTE.-In Stewart v. City of Ripon, 38 Wis. 584, cited in principal case, it was held that "the public streets and sidewalks of a city are for the use of the sick and infirm, and those with organic predisposition to disease, as well as for that of the healthy and robust; and the corporation is chargeable with knowledge that persons of the former classes constantly travel its highways, and that a bodily injury to such from a defective highway may be greatly aggravated by their diseased condition. If therefore the diseased condition of plaintiff's arm would not have occurred but for his organic tendency to scrofula, still defendant's negligence must be regarded as the proximate cause of the whole injury."

In Oliver v. Town of La Valle, 36 Wis. 592, "plaintiff, who was a married woman, and pregnant, was riding with her brother, and when crossing a defective bridge in a public highway the team broke through the bridge. The plaintiff jumped from the wagon and assisted her brother in an attempt to extricate the team. Failing in this at the request of her brother she ran some distance to obtain more assistance. The result of her fright and exertions was a miscarriage. She brought an action against the town, and the principal damages proved ou the trial were the consequences of such miscarriage. It was held that such damages were the proximate result of the negligence of the town, and a verdict and judgment therefor were sustained."

In Brown v. Chicago,etc., R. Co.,54 Wis.342, the railway company's servants by mistake told a husband and wife to get off at the wrong place. The wife was pregnant. The walking to reach a place of comfort brought on a miscarriage. The court held that in an action against the carrier for breach of duty, instead of on its contract, it was liable for the injuries resulting from such miscarriage.

In Eten v. Luyster, 60 N. Y. 253, 259, 260, affirming 3 N. Y. Super. Ct. 486, this court held that where defeudants tore down and destroyed a building built by defendant, in which plaintiff had a sum of money in a box, which was lost in the removal, that plaintiff was not bound to gather up the fragments of his scattered and broken chattels, but was at liberty to leave them where defendants placed them, looking to them for their value; that plaintiff was entitled to recover for all losses occasioned bp the trespass, including the destruction of the building, the loss of the money, and the value of the unexpired term; that although the money was kept in an unusual place, and defendants may not have suspected its presence, yet that they were liable for its loss, which was the direct result of their acts."

In Pullman Palace Car Co. v. Barker, 4 Col. 344; 34 Am. Rep. 89, 92 note, defendant's palace car, in which plaintiff was sleeping, was burned, through the negligence of defendant's servants. The burning was so rapid that she had not time to properly clothe herself, and she left it in her stocking feet. In doing so she was compelled to stand for a short time on the platform of another car, and caught a severe cold which caused a cessation of her menses and resulted in a long period of illness. The court said (p. 347): "Conceding that the appellee was compelled on account of the smoke and flames to leave the car in the half-clad condition she did, the exposure to the cold was the direct and necessary result of the appellant's negligence. Her subsequent illness however was not the result of the exposure, but the result of the exposure in her then condition."

That case was expressly disapproved in Brown v. Chicago, etc., 54 Wis. 360, the court saying:

"There is, I think, but one case cited by the learned counsel for the appellant which appears to be in direct conflict with this view of the case, except those which

relate to the breaches of contract, and that is the Pullman Palace Car Co. v. Barker, 4 Col. 344. This case is, we think, unsustained by authority, and is in direct conflict with the decisions of this court in the cases of Stewart v. Ripon, and Oliver v. Town of Le Valley, supra. This decision is, it seems to me, supported by the principles of neither law nor humanity. It in effect says, that if an individual unlawfully compels a sick and enfeebled person to expose himself to the cold and storm to escape worse consequences from his wrongful act, he cannot recover damages from the wrong-doer because it was his sick and enfeebled condition which rendered his exposure injurious. Certainly such a doctrine does not commend itself to those kinder feelings which are common to humanity, and I know of no other case which sustains its conclusions."

For another cancer case see Jewell v. Railway, 55 N. H. 84.-ED.

NEW YORK COURT OF APPEALS ABSTRACT.

TAXATION-CORPORATION-DEDUCTION-" ASSESSED VALUE.”—(1) Writ of certiorari directed to defendants for the purpose of reviewing their action in assessing the capital stock of the relator for the years 1882. The relator claims that the amount of the capital stock to be subjected to taxation should be the residue after deducting from the par amount, $600,000, the sum of $405,000 expended in real estate, which would leave only $195,000 assessable as personal estate. The defendants however claimed that as the stock was at least fifty per cent above par, and that as the whole value thereof, estimated according to its selling price, was $900,000, and it not appearing that the real estate purchased was of any greater value than the amount paid for it, it was proper to deduct such amount from the actual value of the capital stock estimated according to its selling price. Held, that under the provisions of the act of 1857, ch. 456, in relation to the taxation of corporations liable to taxation, for the purpose of taxing the capital stock of a corporation, it is to be "assessed at its actual value," from which is to be deducted the assessed value of the real estate," and such other items as are specified in the act. (2) The provisions of the statutes regulating the details of assessments of the property of corporations (1 Rev. Stat. 415, § 6, as amended by act of 1853, ch. 564) are to be deemed amended so far as is necessary to make them conform to and give effect to the act of 1857. A construction of a statute which leads to an absurd consequence must always be avoided, as an absurd purpose is not to be attributed to the law makers. Com. v. Kimball, 24 Pick. 370. It will not always be easy to determine the assessed value of the real estate to be deducted from the actual value of the capital stockThere can be no difficulty when the real estate is situ. ated in the same ward or town where the capital stock is assessable, or even when it is situated in the same city or county. In most cases it will thus be situated, but if it is not, and is yet within the State, it will not be impracticable to ascertain its assessed value from assessment rolls always accessible. But if the real estate should be in another State or country, or if for any other reason its assessed value cannot be obtained, then as the best and nearest substitute for it the price paid as the presumed value in the absence of proof or of any other standard, may be taken as the assessable value. We have not overlooked the fact that some of

these views are in conflict with those expressed by Mason, J., in the case of People v. Board of Assessors, 39 N. Y. 81. All that was there said was not necessary to the decision of that case, and we think the coustruction we have given to the statutes is more likely

to give just results and to effectuate the intention of the law makers. People v. Com'rs of Taxes. Opinion by Earl, J.

[Decided April 15, 1884.]

ATTACHMENT-TITLE OF SHERIFF UNDER-TRANSFER BEFORE LEVY.- - Plaintiff, as assignee of a bond and mortgage given to secure a note, brought suit to foreclose. The answer of two defendants, makers of the mortgage, set up as a defense that the mortgage and note had been attached by the sheriff, and were in his possession. It appeared that after the levy under the attachment the mortgage was assigned to plaintiff. Held, that the sheriff acquired no title to the property assigned. Under the earlier provisions of the Code a levy upon property capable of manual delivery, executed by taking it into the actual possession of the officer, invested him with the right in defeuse 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 lien obtained. Rinchey v. Stryker, 28 N. Y. 45. But this court also held as to the levy permitted to be made upon choses in action that the attachment reached and became a lien upon only such debts as at the time belonged to the debtor by a legal title, and for the recovery of which he could maintain an action at law, and as a consequence, where before levy of the attachment he had parted with the legal title even with intent to defraud his creditors, there remained in him for their benefit only an equity which the attachment could not reach, and so the sheriff could not assail the transfer as fraudulent. The doctrine of Thurber v. Blanck, 50 N. Y. 80, went to that extent, and has since been approved. Castle v. Lewis, 78 N.Y. 137; Wait on Fraud. Convey., § 86. These authorities establish that the sheriff in the case before us could not avoid as fraudulent the transfer or the note and its collateral made prior to his asserted levy unless their doctrine is made inapplicable by the change in the provision of the Code, section 649. This provision changed merely the mode of making the levy, but in no respect altered the inherent character of the property sought to be attached. The note is not turned into a chattel by the new provision. It remains a chose in action, and when the legal title is in the attachment debtor the debt may be seized by taking the note or bond which is its evidence, but when the legal title has been transferred to a third party, and is not in the debtor to be attached, the possession of the note by the officers under his warrant accomplishes nothing. On the assumption therefore that no levy was made until after the transfer of the note the attachment gave the officers no right to assail or control it. The levy did not relate back to the time of making the demand, which was before the assignment was made. Until the officer has obtained the actual custody he has no levy, and can make none. In Bills v. Nat. Park Bank, 89 N. Y. 351, the effect of sections 648 and 649 of the Code were not considered. Anthony v. Wood. Opinion by Finch, J. (29 Hun, 239, reversed.)

[Decided June 3, 1884.]

NEGLIGENCE-BURDEN OF PROOF-POSTAL CLERKRIDING ON PASS.-Plaintiff's husband, who was a postal clerk in the employ of the government, which had a contract with defendant for the carriage of its mails, and the person having them in charge, obtained a pass, by the terms of which defendant was not to be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person, and this pass was in his possession at the time of his death, which occurred in consequence of the negligent derailing of the train on which he was 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 operation 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. 227; 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 Pennsylvania R. Co. v. Price, 96 Penu. 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 information of the employees of the defendant, and did not in any sense constitute a contract between the defendant and the person using it, and the agent's acceptance thereof under the circumstances 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.]

NEGOTIABLE INSTRUMENT-CONSIDERATION -EVIDENCE-PERFORMANCE IN FUTURE-MEASURE OF RE

COVERY.- (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. 1 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. In Cottage Street Church v. Kendall, 121 Mass. 529, 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 promisee to the promisor." White v. Baxter, 71 N. Y. 254, it was held that where one, acting on the faith of a promise, performs the condition upon which the promise was made, the

In

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 voluntary 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 Ins. Co., 45 N. Y. 45; Sands v. Crooke, 46 id. 564; Barnes v. Perrine, 9 Barb. 202; L'Amoreux v. Gould, 7 N. Y. 349. (3) Plaintiff was entitled to recover 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. Vi ler v. McKenzie. Opinion by Earl, J. [Decided April 22, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.

PUBLIC LAND-RIGHT OF PRE-EMPTION-LEGAL REPRESENTATIVES.-The legal representative of one who had 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, have the title to such land made complete in him, and his 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 bonds, 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 the county were according to law; not whether the law, under which the proceedings were had, was constitu tional 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