not identical with the first cause of action. Such for example is the case where the second action is brought against a physician for malpractice. A former judgment in favor of the physician, in an action commenced by him to recover for his services in such case, operates as a bar to the maintenance of the second action, because the recovery for his services in an action brought by him for that purpose necessarily adjudicated the question of reasonable skill in his favor. Gates v. Preston, 41 N. Y. 113. In such a case it is said the former judgment is a perfect bar to a second and different cause of action, and is conclusive upon the question of skill, although it was not in reality litigated in the former suit, for the proof of the fact that the patient was treated with reasonable skill is part of the plaintiff's case, and which he must prove to entitle him to a recovery; and hence even if not litigated in the sense of not being contradicted by other proof, the matter is forever set at rest by the judgment; and so it is an instance of a judgment being conclusive upon a matter of fact which perhaps was not, though it might have been, litigated. Dunham v. Bower, 77 N. Y. 76, 79. See also Malloney v. Horan, 49 id. 111; Collins v. Bennett, 46 id. 490. The case in 49 N. Y. says a judgment is final and conclusive upon all matters which might have been litigated and decided in the action, as to matters which might have been used as a defense in that action, and such as, if again considered, would involve an inquiry into the merits of the former judgment. To such extent a prior judgment is, as a plea, a bar to the maintenance of another cause of action, which necessarily involves the questions already litigated, or which might have been litigated, in the former action. The defendant claims here that no judgment in his favor in the Superior Court action could have been recovered upon the evidence in that case, unless the fact were found that he was not a general partner; and that as there was evidence on that trial upon the question of an improper withdrawal of assets from the firm by the defendant while it was insolvent, which evidence, if true, would have shown such a violation of the limited partnership statute as would have made him liable as a general partner, it follows that this judgment in his favor must now necessarily show there was no such improper withdrawal of assets by him from an insolvent firm. He thus claims that even if this second action is not for the same identical cause as was the first, it is yet based, among others, upon an alleged fact (the withdrawal of assets) which was involved in the other action; and he says that the judgment in such action conclusively shows a decision of that question in his favor. It is true that a valid judgment upon a question directly involved in a suit is conclusive evidence as to that question in any other suit (although for a different cause of action) between the same parties; but it must appear, either by the record in that suit or by extrinsic evidence, that the precise question was raised and determined in the former suit; and this burden rests of course with the party who endeavors to make use of the judgment as conclusive evidence upon that point. If there be uncertainty as to whether or not the question was passed upon, the judgment is not conclusive as evidence. See Stowell v. Chamberlain, 60 N. Y. 272; Russell v. Place, 94 U. S. 606; Cromwell v. County of Sac, id. 351. Thus in the Stowell case it was held that in a second action between the same parties, brought for a different cause, though in regard to the same transaction, in order to make the former judgment available, either in bar or as evidence, where such judgment was recovered in an action for the wrongful conversion of property (the second action being brought in assumpsit, it was necessary to show that the question of plaintiff's title was passed upon in the first action.

The judgment may have passed upon the fact that defendant had not had possession of the property, and on that ground was not guilty of conversion. So in order to obtain the benefit of a prior adjudication of a fact, it is entirely reasonable to exact from the party asking its benefit clear proof that such adjudication has been made. The cases in the Supreme Court of the United States above cited are further illustrations of the principle, which is firmly based upon authority and good sense. April 10, 1888. Bell v. Merrifield. Opinion by Peckham, J.

RAILROAD COMPANIES-NEGLIGENCE AT CROSSING— CONTRIBUTORY NEGLIGENCE. - Where plaintiff approached and attempted to cross a railroad track at the rate of about ten miles an hour, while a strong wind was blowing, and snow was falling fast, knowing that trains frequently passed there, and that it was a place of danger and was injured by a collision with a fast express train, there being nothing to conceal the approach of the train except the storm, a nonsuit in an action against the railroad company for such injuries, on the ground of contributory negligence, was properly granted, it being the duty of plaintiff to establish his own freedom from such negligence. March 20, 1888. Powell v. New York Cent. & H. R. R. Co. Opinion per Curiam; Danforth and Andrews, JJ. dissent.

LIGENCE.

IN STREET - INJURY TO PASSENGER NEG

In an action against a street-car company for damages, where the car was going at an unusual rate of speed in a large city, and the shaft of a truck wagon suddenly broke through the panel of the car, striking plaintiff from her seat and severely injuring her, a nonsuit on the ground of no evidence of negligence on the part of the car driver should not be granted. April 10, 1888. Hill v. Ninth Ave. R. Co. Opinion by Finch, J.

STATE AND STATE OFFICERS CLAIMS AGAINST STATE LIMITATIONS—REVIVAL BY LEGISLATURE. -Plaintiff presented his claim for damages against the State, to the canal appraisers, who had power to hear and determine such claim, and they disallowed it. Subsequently, by act of Legislature of 1883, the offices of canal appraisers were abolished and the board of claims, established with power to determine all private claims against the State presented within certain limitations of time, and all claims against the State pending before the canal appraisers were transferred to the board of claims. In 1886 an act was passed exempting plaintiff's claim from the limitations in the act creating the board of claims, and giving that board jurisdiction to rehear, audit and determine said claim. Held, that plaintiff's claim, beiug barred by the lapse of more than six years from the time the canal appraisers disallowed it, under the Constitution of New York, art. 7, § 14, forbidding the payment by the State of any claim which as between the citizens of the State would be barred by the lapse of time, was not revived by the act of 1886. April 10, 1888. McDougall v. State. Opinion by Ruger, C. J.

ΤΑΧΑΤΙΟΝ· - REDEMPTION - NOTICE TO OCCUPANT - PROVINCE OF JURY — BOUNTY TAX-SALE FOR NONPAYMENT-CONSTITUTIONALITY.-(1) Where defendants assert that plaintiff's title to land is invalid, because claiming under a tax sale, he did not give notice to redeem to a third party, who was an occupant of the premises at the time specified by statute for the giving of such notice, the question whether such third party was an occupant of the premises at that time is properly submitted to the jury; it being conceded that he resided upon an adjoining lot, and the evidence tending to show that he had abandoned the lot in question prior to the tax sale. (2) Under an act of the

Legislature relating to taxation for bounties, which provides that all provisions of law, existing at the passage of the act, for the collection of taxes, shall apply to the taxes therein provided for, payment of unpaid bounty taxes may be enforced by a return of the delinquent property to the comptroller and a sale thereof, the same as other taxes are enforced. (3) The Constitution of New York, art. 7, § 13, providing that every law imposing a tax shall state the object to which it is to be applied, refers only to a general tax upon all the property in the State, and is not applicable to the Laws of New York, 1863, chap. 15, authorizing the citizens of towns to impose a tax for bounties. In re McPherson, 104 N. Y. 306. April 10, 1888. Jones v. Chamberlain. Opinion by Danforth, J.

TELEGRAPH COMPANIES - UNREPEATED MESSAGENOTICE OF STIPULATION MUTILATED BLANK. —(1) Where plaintiff has been familiar for several years with defendant's telegraph blanks, containing a notice and stipulation wherein it is agreed between the sender and the company that it shall not be liable for the non-delivery of unrepeated messages, whether happening by the negligence of its servants or otherwise, he cannot recover for damages sustained by the non-delivery of a message, where it appears that he had not ordered the message repeated, and there is no evidence in the case to show that the non-delivery was due to the misconduct of the defendant or its servants. That a telegraph company has the right to exact such a stipulation from its customers is the settled law in this and most of the other States of the Union and in England. McAndrew v. Telegraph Co., 33 Eng. Law & Eq. 180; Telegraph Co. v. Carew, 15 Mich. 525; Ellis v. Telegraph Co., 13 Allen, 226; Redpath v. Telegraph Co., 112 Mass. 71; Grinnell v. Telegraph Co., 113 id. 299; Clement v. Telegraph Co., 137 id. 463; Schwartz v. Telegraph Co., 18 Hun, 157; Baldwin v. Telegraph Co., 45 N. Y. 744; Breese v. Telegraph Co., 48 id. 132; Kirkland v. Dismore, 62 id. 171; Young v. Telegraph Co., 65 id. 163. The authorities hold that telegraph companies are not under the obligations of common carriers; that they do not insure the absolute and accurate transmission of messages delivered to them; that they have the right to make reasonable regulations for the transaction of their business, and to protect themselves against liabilities which they would otherwise incur through the carelessness of their numerous agents, and the mistakes and defaults incident to the transaction of their peculiar business. The stipulation printed in the blank used in this case has frequently been under consideration in the courts, and has always in this State and generally elsewhere been upheld as reasonable. The plaintiff must be held to have assented to this stipulation. He was familiar with the defendant's blanks, having used them extensively for several years, and he had frequently read the words at the bottom of them: "Read the notice and agreement at the top." Therefore, although he may not have known what the precise terms of the stipulations contained in the blank were, yet he knew that some stipulations were therein contained, and he must be held by the use of the blank and its delivery to the defendant to have assented to them. The evidence brings this case within the terms of the stipulation. It is not the case of a message delivered to the operator and not sent by him from his office. This message was sent, and it may be inferred from the evidence that it went so far as Buffalo at least; and all that appears further is that it never reached its destination. Why it did not reach there remains unexplained. It was not shown that the failure was due to the willful misconduct of the defendant or to its gross negligence. If the plaintiff had requested to have the message repeated back to him, the failure

The

would have been detected and the loss averted. case is therefore brought within the letter and purpose of the stipulation. (2) The party cannot protect himself from the operation of such agreements by showing that a portion of the agreement was torn from the blank on which he wrote his message. (3) A mutilated telegraph blank, showing that the sender of a message should order the same repeated, and for this one-half the regular rate is charged in addition, and also showing the agreement between the sender and the company that it shall not be liable for the non-delivery of an unrepeated message, contains sufficient language to put a party writing a message on such a blank upon inquiry of what the full agreement is in a complete blank, and he will be held as under a perfect blank. (4) Plaintiff, in an action for damages for the non-delivery of a telegram, testified that he could not remember whether or not the blank upon which he wrote the message was torn. A witness for defendant testified that he saw the message several times after its delivery to defendant's operator, and as he remembered it was not torn. Held, not sufficient evidence to justify the jury in finding that the blank was torn at the time of writing the message. April 10, 1888. Kiley v. Western Union Tel. Co. Opinion by Earl, J., Danforth, J., dissenting.

UNITED STATES SUPREME COURT ABSTRACT.

ARBITRATION AND AWARD IMPEACHMENT OF AWARD - BIAS OF ARBITRATOR.-Action was brought by a railroad company to set aside a judgment rendered upon the award of arbitrators in favor of the railroad contractors. It appeared that one of the arbitrators was in the employ of the chief engineer at the time the contracts were made, and continued therein for some time, but left before the completion of the work. In accordance with a private arrangement with one who was interested in the contracts, he received a share in the profits, but in no other way was he interested in the contracts or in the work. Held, insufficient cause to set aside the judgment. January 16, 1888. Union R. Co. v. Dull. Opinion by Harlan, J.

JURISDICTION

SUITS AT

OF FEDERAL COURTS LAW❞— EMINENT DOMAIN PROCEEDINGS.-A proceeding under the Code of Civil Procedure of Colorado to ascertain the compensation for land taken for public use, is a suit at law within the meaning of the Coustitution of the United States and the acts of Congress conferring jurisdiction on Federal courts. Kohl v. United States, 91 U. S. 367; Boom Co. v. Patterson, 98 id. 403; Removal cases, 115 id. 1; Gaines v. Fuentes, 92 id. 20. The precise question involved here was passed upon and satisfactorily dealt with by the circuit judge in the Circuit Court for the District of Colorado in Railway Co. v. Jones, 29 Fed. Rep. 193, and by the Circuit Court for the Western District of Michigan, by the District Judge Brown, in Railroad Co. v. Copper Co., 25 Fed. Rep. 515. January 16, 1888. Searl v. School-Dist. No. 2, in Lake Co., Colorado. Opinion by Matthews, J.

LACHES FAILURE TO ENFORCE TITLE.-Plaintiff's father made an oral gift to him of a lot of land, and plaintiff entered into possession and began improvement. Plaintiff also purchased a tax deed of the premises, but did not have the deed recorded. Afterward a part of the lot was sold, under execution, for plaintiff's debts and bought by the defendant. Plaintiff filed a bill to enjoin the sale, alleging that he had an equitable interest only by virtue of the verbal gift.

This action was not prosecuted. Ten years afterward the father gave plaintiff a deed of the lot, and twelve years after the sale plaintiff brought action to set aside the sale. Held, that the plaintiff having held the legal title to the lot under his tax deed at the time of the sale, he was guilty of gross laches in sleeping on his rights for twelve years, and is not entitled to any relief in equity. January 9, 1888. Richards v. Mackall. Opinion by Harlan, J.

--

EMINENT DOMAIN

-

MUNICIPAL CORPORATION DAMAGE TO PRIVATE PROPERTY.-A lot in the city of Chicago had a frontage of sixty feet on Lumber street, 150 feet on Eighteenth street, and 300 feet on the south branch of the Chicago river. The property had been used as a coal-yard. A viaduct constructed by the city on Eighteenth street, under power conferred by its charter and special ordinances, was so built that access to the yard from Eighteenth street was practically cut off, and the use of Lumber street seriously impaired as a way of approach and exit. In addition the property was often flooded by water from the approaches on each side of it to a neighboring bridge. Held, that the lot was "damaged," within the meaning of the Illinois Constitution of 1870, providing that "private property shall not be taken or damaged for public use without just compensation." (2) Held, that the diminution, if any, in the selling or renting value of the property, was the true measure of damages, and that no recovery could be had for the flooding or for the improvements put on the lot for the special purposes for which it was rented, unless the flooding affected that value, and unless the damages to the lot were such as to destroy its use as a coal-yard. March 19, 1888. City of Chicago v. Taylor. Opinion by Harlan, J.

CONTRACT — REVOCA

SALE UPON CONDITION TION-LACHES.-(1)A., who was the president of a streetrailway company, and who held about 800 shares of its stock, agreed with B., who owned 1,200 shares, that the stock should be pooled, each party's interest in the pool to be joint and equal and A. to pay in money to equalize the difference. The object was to buy up stock and thus control the road. The right was reserved to each party upon death of the other to buy in the interest of his estate on certain terms. A. paid no money, and about three years later B. reported that he then had 1,571 shares and that A. had 812 shares. To make their interests equal, B. transferred to A. 379% shares and took from him his note for the amount of their value, giving him a receipt, which set out that the note had passed, and that it was given for the purchase-money of the 379% shares then held by B., "and to be delivered upon payment of the note. Held, that the receipt revoked the original contract and amounted to a sale upon condition that if the note was not paid when due all interest of A.,in the 379% shares should come to an end. (2) The receipt was assigned September 16, 1882, to M., who in January, 1883, offered to pay B.'s note, and demanded the stock, and being refused, filed a bill for specific performance. In the meantime A., who was president of the road, became indebted to it, and parted with his stock in the spring of 1878. B. then assumed control and managed the property so well that the stock appreciated very much in value. Held, that the bill for specific performance was barred by laches. March 19, 1888. Davison v. Davis. Opinion by Bradley, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

BAILMENT WHAT CONSTITUTES DELIVERING WHEAT TO MILLS.-Plaintiffs delivered wheat at a mill, and according to the custom and arrangement of the

mill, the wheat all went into a common mass with other wheat. Receipts were given by the miller showing it was received for the use of plaintiffs. Afterward the sheriff levied on a lot of flour and bran in the mill, by virtue of an execution against the miller. Plaintiffs claimed it as theirs, and on an interpleader issue between them and the attaching creditors, after being fully instructed as to what constituted a sale, and what a bailment, in such cases, the jury found for plaintiffs. Held, that the finding for plaintiffs necessarily implied a finding that the transaction was a bailment, and not a sale, which was a question of fact for the jury. The fundamental distinction between a bailment and a sale is that in the former the subject of the contract, although in an altered form, is to be restored to the owner, while in the latter there is no obligation to return the specific article; the party receiving it is at liberty to return some other thing of equal value in place of it. In the one case the title is not changed; in the other it is-the parties standing in the relation of debtor and creditor. Thus in Norton v. Woodruff, 2 N. Y. 153, a miller agreed to take certain wheat, and to give one barrel of superfine flour for every four 36-60 bushels thereof, the flour to be delivered at a fixed time, or as much sooner as he could make it. As the miller's contract was satisfied by a delivery of flour from any wheat, the transaction was held to be a sale. But in Malloy v. Willis, 4 N. Y. 76, wheat was delivered under a contract "to be manufactured into flour," and one barrel of the flour was to be delivered for every four 15-60 bushels of wheat. This transaction was by the same court held to be a bailment. If a party having charge of the property of others so confounded it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produces it. Where however the owners consent to have their wheat mixed in a common mass, each remains the owner of his share in the common stock. If the wheat is delivered in pursuance of a contract of bailment, the mere fact that it is mixed with a mass of like quality, with the knowledge of the depositor or bailor, does not convert that into a sale which was originally a bailment, and the bailee of the whole mass of course has no greater control of the mass than if the share of each were kept separate. If the commingled mass has been delivered on simple storage, each is entitled on demand to receive his share; if for conversion into flour, to his proper proportion of the product. Chase v. Washburn, 1 Ohio St. 244; Hutchinson v. Com. 32 Penn. St. 472. It makes no difference that the bailee had in like manner contributed to the mass of his own wheat, for although the absolute owner of his own share, he still stands as a bailee to the others, and he cannot abstract more than that share from the common stock without a breach of the bailment, which will subject him, not only to a civic suit, but also to a criminal prosecution. Hutchinson v. Com., 82 Penn. St. 472. But where, as in Chase v. Washburn, supra, the understanding of the parties was that the person receiving the grain might take from it, or from the flour, at his pleasure, and appropriate the same to his own use, the condition of his procuring other wheat to supply its place, the dominion over the property passes to the depository, and the transaction is a sale, and not a bailment. To the same effect are Schindler v. Westover, 99 Ind. 395; Richardson v. Olmstead, 74 Ill. 213; Bailey v. Bensley, 87 id. 556, and Johnston v. Browne, 37 Iowa, 200. In Lyon v. Lenon, 7 N. E. Rep. 311, the distinction is thus stated: "If the dealer has the right at his pleasure either to ship and sell the same, on his own account, and pay the market price on demand, or retain and redeliver the wheat, or other wheat in the place of it, the transaction is a sale. It is only

when the bailor retains the right from the beginning to elect whether he will demand the redelivery of his property, or other of like quality and grade, that the contract will be considered one of bailment. If he surrenders to the other the right of election, it will be considered a sale, with an option on the part of the purchaser to pay either in money or property, as stipulated. The distinction is, can the depositor, by his contract, compel a delivery of wheat, whether the dealer is willing or not? If he can, the transaction is a bailment. If the dealer has the option to pay for it in money or other wheat, it is a sale." This distinction is drawn of course with reference to cases where grain is deposited in a mass, as in grain elevators, etc. There are cases in which the doctrine of bailment has been carried much beyond the rule recognized in the cases we have cited. See Sexton v. Graham, 53 Iowa, 181, and Nelson v. Brown, id. 555. We think however the rule recognized in Chase v. Washburn, supra, and Lyon v. Lenon, supra, is a safe one, and is more in accord with the well-settled principles of the law relating to bailment. Penn. Sup. Ct., Jan. 3, 1888. Bretz v. Diehle. Opinion by Clark, J.

BANKS-PAYMENT OF FORGED CHECK-LIABILITY. A stranger presented to the bank of O. a check purporting to be drawn by one C. on the bank of A. for $385. The cashier of the bank of O. compared the signature of the purported drawer with his genuine signature in a book kept by such cashier, aud paid the check without requiring proof as to the identity of the person presenting the same, or making inquiries in regard to him. The check was sent to a bank in Lincoln, and there credited to the bank at O., and by the Lincoln bank sent to the bank at A. on which it was drawn, and was paid by such bank. Several days afterward it was discovered that the check was a forgery, and notice was thereupon given to the bank at Lincoln and also at O. Held, that the bank at O. was liable for the amount received by it on the check. The case of Ellis v. Trust Co., 4 Ohio St. 626, is similar, in many respects, to that under consideration. It is said, p. 662: To entitle the holder to retain money obtained by mistake upon a forged instrument, he must occupy the vantage ground, by putting the drawer alone in the wrong; and he must be able truthfully to assert that he put the whole responsibility upon the drawee and relied upon him to decide, and that the mistake arising from his negligence caunot now be corrected without placing the holder in a worse position than though payment had been refused. If the holder cannot say this, and especially if❘ the failure to detect the forgery and consequent loss can be traced to his own disregard of duty, in negligently omitting to exercise some precaution which he had undertaken to perform, he fails to establish a superior equity to the money, and cannot, with a good conscience, retain it. To allow him to do so would be to permit him to take advantage of his own wrong, and to pervert a rule designed for his protection against the negligence of the drawee into one for doing injustice to him." See also Goddard v. Bank, 4 N. Y. 147; Bank v. Bank, 3 id. 230; Bank v. Bank, 1 Hill, 287. In the last case the indorsement of the payee was forged and the money paid by the drawees was recovered back, although the forgery was not discovered for two months after payment, and the remedy against the other indorsers was lost. In Bank v. Allen, 59 Mo. 311, a bank had paid to a stranger a check drawn upon another bank and collected the amount from the latter. At the time of the payment neither bank was aware of the forgery. The next day after the payment, the bank on which the check was drawn ascertained the forgery, and on that

day or the succeeding one notified the first bank of that fact; it was held that the notice was given in a reasonable time, and that the money could be recovered back. In that case the money had been drawn on a check for the sum of $20, payable to a stranger who before presenting it to the bank had altered it by substituting $328.68 instead of $20, and also by changing the name of the payee, the signature of the check being genuine. In Espy v. Bank, 18 Wall. 604, a check was drawn by Stall & Meyer on the defendant for $26.50 in favor of Mrs. Hart. This was raised by substituting $3,920 for 26.50, and the name of Espy, Heidelbach & Co. for that of Mrs. Hart as payee. The check thus altered was presented to the bank, and paid by it through the clearing house. The court held if this were all the case there would be no doubt of the right to recover. E., H. & Co. however had sent the check to the bank before paying the same, and were informed that it was good; a question which does not arise in this case. After a careful examination of the authorities, we have no doubt that a party who pays a forged check does so at his peril; and if by means of his indorsement and use of the same he thereby obtains mouey from another, he is liable for the amount thus received. The Capitol National Bank and also the State Bank of Alma had the right to assume that an instrument sent forth with an indorsement of the plaintiff's on which they received value was genuine. Neb. Sup. Ct., Jan. 5, 1888. First Nat. Bank of Orleans v. State Bank of Alma. Opinion by Maxwell, J.

CONTRACT PUBLIC POLICY ---- SALE OF BOHEMIAN OATS.-A promissory note for the payment of $125, being one-half of the purchase price of twenty-five bushels of Bohemian oats, which are worth but little more than ordinary oats, made in consideration of the delivery of the oats, and an agreement on the part of the payee to sell for the maker, within a stated time, a certain number of bushels at $10 per bushel, for the sale of which he was to receive a commission, is void, on the ground of public policy and cannot be enforced, though a part of the consideration has been received. The court cannot shut its eyes to the fact that this is only one of the thousands of similar contracts made within this State within the last few years, and that the unwary, unsuspecting and too credulous farmers have been made the victims of sharpers and swindlers, who by their seductive acts have worked upon the natural love of gain which most men possess, and thus reaped a rich harvest from those whom the law should protect. The very scheme itself bears evidence upon its face that it is a fraud and a snare, and yet so cunningly devised that in the hands of a sharp, shrewd and designing man, hundreds of the unwary have been defrauded; and the courts should set their seal of condemnation upon it and pronounce it, as it is, a contract void on the ground of public policy. It is upon its face a gambling contract. Mr. Greenhood, in his work on Public Policy, says: "By public policy is intended that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed the policy of the law or public policy in relation to the administration of the law. The strength of every contract lies in the power of the promisee to appeal to the courts of public justice for redress for its violation. The administration of justice is maintained at public expense; the courts will never therefore recognize any transaction which in its object, operation or tendency is calculated to be prejudicial to the public welfare." Walker, J., in Hotzger v. Cleveland (Marion Superior Court, Indiana), 3 Ind. Law Mag. 42, 50, speaking upon this ques

tion, says: "We may take it as well settled that in the law of contracts the first business of the courts is to look to the welfare of the public; and if the enforcement of the agreement would be inimical to its interests, no relief could be granted to the party injured, even though it might result beneficially to the party who made and violated the agreement." Mr. Story says: "Public policy is in its nature so uncertain and fluctuating, varying with the habits and fashions of the day, with the growth of commerce and the usages of trade, that it is difficult to determine its limits with any degree of exactness. It has never

been defined by the courts, but has been let loose and free from definition in the same manner as fraud. This rule may however be safely laid down that wherever any contract conflicts with the morals of the time and contravenes any established interest of society, it is void, as being against public policy." Story Coufl. Law, § 546. Some of the courts, speaking upon this subject, have said that the immediate representatives of the people in Legislature assembled would seem to be the fairest exponent of what public policy requires as being most familiar with the habits and fashions of the day, and with the actual consideration of commerce and trade, their consequent wants and weaknesses. That legislation is least objectionable, because it operates prospectively as a guide in future negotiatious, and does not, like a judgment of a court, annul a contract already concluded. Such contracts in this State have already had the seal of condemnation stamped upon them by the legislative branch of the State government. The argument that holding such contracts void on the ground of public policy annuls a contract already concluded has no force. If the contract is at war with the established interests of society, and is in conflict with the morals of the time, the fact that individuals may suffer can in no manner affect the question, as the interests of individuals must in many cases be subservient to public welfare. It is essentially a gambling contract, and one impossible to be performed. These oats were worth no more than any other oats, for any useful purpose, and Griffith knew that these oats, at any time up to October 21, 1886, could not be sold legitimately for more than any other oats, and that they could not be sold for $10 per bushel in any legitimate and lawful transaction; that the only way in which they could be so sold was by the perpetration of another and similar fraud upon some other unsuspecting victim to his arts and wiles. The contract is one that Gargett could not have enforced had Griffith failed to call for and sell the oats. In such cases the courts must leave the parties where it finds them. If either party has however been defrauded, he may have his action for the fraud, but could not enforce the contract. It is said however that Gargett received twenty-five bushels of oats, and ought not to be permitted to complain, as there is not a total failure of consideration. But the trouble is, the whole contract is tainted and avoided by the part of the consideration which is illegal. If any part of a consideration is illegal, the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or promise, although he may have connected with the act or promise another which is legal. 1 Pars. Cont. 457; Snyder v. Willey, 33 Mich. 486. Had the note gone into the hands of a bona fide holder-one who purchased for value before maturity, and without notice of the consideration for which it was given-the principles which we have laid down would not apply. It is not intended to run counter to the rules of the lawmerchant governing negotiable instruments, but we have taken the note and bond together as forming the

contract between the parties; and construing them together, as though written upon the same piece of paper, and as between the original parties and those purchasing with notice, we hold such contracts void. Mich. Sup. Ct., Feb. 2, 1888. McNamara v. Gargett. Opinion by Long, J.

NEW BOOKS AND NEW EDITIONS.

PATTERSON'S FEDERAL RESTRAINTS ON STATE AC

TION.

The United States and the States under the Constitution. By Christopher Stuart Patterson. Philadelphia: T. & J. W. Johnson, 1888. Pp. xxxi, 290.

An intelligent monograph on the relation of the States to the United States and to each other; the implied powers; taxation; the regulation of commerce; the impairment of the obligation of contracts; ex post facto laws and bills of attainder; the prohibition of State bills of credit; fugitives from justice; the judicial powers; rights of person and of property; the Federal Supremacy and the reserved rights of the State, illustrated by a classification and analysis of the Supreme Court decisions.

The London Law Times says "that in the new edition of his work on partnership, Lord Justice Lindley laments that this branch of the law should not be put into shape and codified by legislative authority, hinting too that the draft of a bill to consolidate and amend the law of partnership may be found in the appendix to Mr. Frederick Pollock's 'Digest of the Law of Partnership,' and observing that Mr. Pollock's remarks on this subject deserve the serious attention of the Legislature. That they obtain the attention of Parliament is shown by the excellent bill to consolidate the law of partnership, which has been prepared and brought in by Colonel Hill, Sir Bernhard Samuelson, Sir George Elliott, Sir Charles Palmer, Mr. Whitley, Sir Albert Rollit and Mr. Seale Hayne. The bill would repeal Boville's Act (28 and 29 Vict., chap. 86), and re-enact its substance. It would contain the whole law of partnership, the modicum of statutory law and the much larger quantity of judgemade' law, in the small compass of sixty-four clauses filling some fifteen pages. It is worth while to notice the definition of partnership with which the bill opens: Partnership is the relation which subsists between persons who have agreed to carry on business and share profits in some way in common.' This approaches very nearly to the definition given in the Civil Code of New York: Partnership is the association of two or more persons for the purpose of carrying on business together and sharing the profits between them.""

་