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marry with each other, or who shall commit adultery or fornication with each other, shall, upon conviction, be punished," etc. This enactment is taken from the Revised Statutes (part 4, chap. 1, tit. 5, art. 2, § 12), and its reference is to the provision as to marriage (part 2, chap. 8, tit. 1, art. 1, § 3). That declares marriages between parents and children incestuous and void, and specially includes illegitimate as well as legitimate children. Since therefore the consanguinity between father and daughter, although the latter be illegitimate, is by law declared to make their marriage incestuous and void, the provision of the Penal Code applies to the same relation and describes the crime of incest. Beyond its utter want of merit the defense has no foundation in the law. An indictment for incest described the female as "Georgiana Towne, commonly known as Georgiana Lake.'" It appeared that her real name was Georgiana Jeanette Lake, and that she was generally spoken of as "Nettie Lake." Held no variance, there being no question as to the identity of the female. June 5, 1888. People v. Lake. Opinion by Finch, J.

PARTNERSHIP LIMITED GOOD FAITH-QUESTION FOR JURY-PUBLICATION OF NOTICE-VARIANCE.Where plaintiff, seeking to hold defendant as a general instead of a special partner, contends that defendant's actual payment of money into the firm, which is requisite to constitute him a special partner, was not made in good faith, and certain facts, if unexplained, support his contention, and plaintiff calls defendant as a witness, the fact that the latter in his testimony offers a possible explanation of the matters concerning the payment does not preclude plain

tiff from going to the jury on the issue of the good faith in the payment. Becker v. Koch, 104 N. Y. 394. When the certificate of a limited partnership is recorded October 1st, and publication is not made until October 10th, there is still compliance with the Revised Statutes of New York, part 2, chap. 4, tit. 1, § 9, requiring partners to publish the terms of the partnership, when requested for at least six weeks "immediately" after the recording of the certificate. There is no material variance between the certificate of formation of a limited partnership expressing the nature of the business to be "a general commission business, buying and selling grain, flour and produce on commission," and the published notice stating the business to be "for the purpose of conducting a general commission business." June 5, 1888. Manhattan Co. v. Phillips. Opinion by Danforth, J.

VENDOR AND PURCHASER -CONSTRUCTION OF CONTRACT-TAXES-COVENANTS AGAINST INCUMBRANCES -TAXES ASSESSED, BUT NOT LEVIED.-A contract of sale of improved city real estate, dated Augnst 4th, provided that the deed, which was to be executed August 23d, should contain full covenants, and should convey the property "free and clear from all incumbrances," except certain mortgages, and that "the calculations and adjustments of the exact amounts to be paid as to rents, interest, etc., shall be made the same as if this contract were actually carried out on September 1st, at 12 M.," and that the rents, issues and profits of the premises earned before September 1st should go to the vendor, and those earned after to the vendee. An annual tax was assessed at the time of the execution of the contract, but was not confirmed until August 29th. On the day of the execution of the deed an adjustment of rents, interest, gas charges and insurance premiums was made, without any taxes being taken into consideration. Held, that the symbol "&c.," after the words "rent" and "interest," referred only to the current and accrued earnings and liabilities of the premises, and could only add to the expressed items of rent and interest something of an

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analogous nature, and that it would not make the
vendor liable for said tax. A covenant in a deed that
the premises were "free, clear, discharged and unin-
cumbered of and from all charges, taxes, assessments
and incumbrances, of what kind and nature soever,"
does not make the grantor liable for an annual tax on
the premises assessed before, but not confirmed until
after the execution of the deed. Dowdney v. Mayor,
54 N. Y. 186; Barlow v. Bank, 63 id. 399; Fisher
v. Mayor, 67 id. 73, and Association v. Mayor, etc., 104
id. 581. The case of Rundell v. Lakey, 40 id. 513, also
cited by appellant, was decided by a divided court,
and was the subject of consideration by Andrews, J.,
in Barlow v. Bauk, supra. While some of the expres
Bions of Grover, J., who delivered the opinion in Run-
dell v. Lakey, may seem to conflict with our views in
this case, we are inclined to adopt the principles laid
down in Barlow v. Bank. In that case the question
discussed was whether there was a breach of the cove-
nant against incumbrances. Andrews, J., who ren-
dered the opinion, refers, in the first place, to the case
of Rundell v. Lakey, and says (page 400): "In Run-
dell v. Lakey, 40 N. Y. 513, the plaintiff, to whom the
defendants, intermediate the completion of the
assessment roll and the levying of the tax by the board
of supervisors, had conveyed certain premises, with
covenant for quiet enjoyment, was called upon by the
collector of the town, after the tax had been levied,
and the warrant for its collection had been issued, to
pay it; and at the request of the defendants, and upon
their agreement to refund the amount to him in case
they were legally liable to pay it,' paid the tax, and
afterward brought his action against them to recover
the amount paid * * *
Five judges concurred in
the result. Grover, J., who delivered the only opinion
in the case, places his judgment upon the effect of the
agreement, considered in connection with the fact
that, under the tax laws, the owner of real estate re-
siding in the town or ward where it is situated, and to
whom it is assessed, is primarily liable for the pay-
ment of the tax subsequently imposed under the
assessment, although he may have parted with his title
after the completion of the assessment roll by the
assessors, and before the levying of the tax by the
board of supervisors. Hunt, C. J., and Mason and
James, JJ., were of opinion that the plaintiff was en-
titled to recover, independently of the agreement,
upon the covenant in the deed. Daniels, J., was for
affirmance, upon the ground that the tax could have
been collected by the collector from the defendants,
and that they were liable to pay it within the mean-
ing of the agreement. Lott, J., dissented, and Wood-
ruff, J., did not vote." Judge Andrews, in his opin-
ion, held that "no lien or incumbrance on the lands
assessed is created by the act of the assessors. The
assessment is the basis upon which the board of super-
visors act in apportioning the tax, but it is in no sense
the imposition of a charge upon the land described in
the roll. This is one of the preliminary steps which
result in taxation. So is the election of assessors;
and taxation of the lands within the town is as cer-
tain to take place before the assessors commence
making the roll as after it is completed. The arrange-
ments of the statute necessarily lead to the imposition
of taxes at each annual meeting of the supervisors.
The roll, when completed, fixes the valuation of the
property to be taxed, but it does not determine the
amount of the tax, and the most which can be claimed
is that it renders more certain and definite the lia-
bility to taxation, which nevertheless existed before
the assessment was made. The language of the cove-
nant in the defendant's deed is that the premises are
free and clear from all incumbrances whatsoever.'
The covenant against incumbrances is a covenant in
præsenti, and like the covenant of seizin, if broken

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at all, is broken as soon as the deed is executed. 4 Kent Comm. 471; Rawle Cov., § 89; Horton v. Davis, 26 N. Y. 495. The right of action accrues at once, and unless an action will lie immediately there is no breach of the covenant. The covenantee, suing upon such a covenant, may be restricted to nominal damages, where he has not been subjected to actual loss (Delavergne v. Norris, 7 Johus. 358; Hall v. Dean, 13 id. 105), but the right of action, when it exists at all, is complete the moment the covenant is made. If the plaintiff had brought his action the day after he took his deed, could he have maintained it? I think not. The answer would have been perfect that the entry of the land in the assessment roll constituted no incumbrance." In a very recent case, of Association v. Mayor, etc., 104 N. Y. 581, Peckham, J., said, as to the lien of a tax, where plaintiffs took title by deed dated July 31, 1877, and the tax was not confirmed until October, 1877 (page 588): “In questions arising under covenants in deeds as to incumbrances, it has been decided that no lien or incumbrance by reason of a tax existed until the amount thereof was ascertained or determined." And again: "It may be conceded that technically there was then no lien." June 5, 1888. Lathers v. Keogh. Opinion by Gray, J.

RESCISSION OF CONTRACT-TITLE.-W. assigned a lease to defendant upon, as the assignment stated, "a consideration of one dollar, and other good and valuable considerations." The assignment was recorded, and thereafter plaintiff agreed to purchase the lease from defendant, and paid part of the purchase price. Prior to the consummation of the purchase W. made an assignment for benefit of creditors, and judgments were docketed against him. Plaintiff thereupon refused to complete the purchase "without releases from W.'s general assignee and from his judgment creditors." Held, that the court having found that defendant's title was good, that the assignment was made for a valid consideration and not to defraud creditors, and the consideration mentioned in the assignment not showing otherwise, plaintiff could not recover the amount paid on account of the purchase, although such releases were not obtained. June 5, 1888. Baylis v. Stimson. Opinion by Danforth, J.

UNITED STATES SUPREME COURT ABSTRACT.

ASSIGNMENT WHAT ASSIGNABLE-PERSONAL CONTRACTS.-Defendant contracted to deliver 10,000 tons of lead ore from its mines to the firm of B. & E., at their smelting works, at the rate of fifty tons per day, to become the property of B. & E. as soon as delivered. The price was not fixed, but as often as 100 tons had been delivered the ore was to be assayed by the parties, or if they could not agree, by an umpire; and after that and according to the result of the assay, and the proportions of lead, silver, silica and iron thereby proved to be in the ore, the price was to be ascertained and paid. During the time between the delivery of the ore and the ascertainment of the price, defendant had no security for its payment, except in the character and solvency of B. & E. Held, that the contract was personal in its nature, and that plaintiff, claiming as assignee, could not compel defendant to continue delivering the ore. At the present day, no doubt, an agreement to pay money or to deliver goods may be assigned by the person to whom the money, is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterward done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable. But

every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman: "You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract." Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305; Ice Co. v. Potter, 123 id. 28; King v. Batterson, 13 R. I. 117, 120; Lansden v. McCarthy, 45 Mo. 106. The rule upon this subject, as applicable to the case at bar, is well expressed in a recent English treatise: "Rights arising out of contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided." Pol. Cont. (4th ed.) 425. The technical rule of law, recognized in Murray v. Harway, 56 N. Y. 337, cited for the plaintiff, by which a lessee's express covenant not to assign has been held to be wholly determined by one assignment with the lessor's consent, has no application to this case. The cause of action set forth in the complaint is not for any failure to deliver ore to Billing before his assignment to the plaintiff (which might perhaps be an assignable chose in action), but it is for a refusal to deliver ore to the plaintiff since this assignment. Performance and readiness to perform by the plaintiff and its assignors, during the periods for which they respectively held the contract, is all that is alleged; there is no allegation that Billing is ready to pay for any ore delivered to the plaintiff. In short, the plaintiff undertakes to step into the shoes of Billing and to substitute its liability for his. The defendant had a perfect right to decline to assent to this, and to refuse to recognize a party, with whom it had never contracted, as entitled to demand further deliveries of ore. The cases cited in the careful brief of the plaintiff's counsel, as tending to support this action, are distinguishable from the case at bar, and the principal ones may be classified as follows: First. Cases of agreements to sell and deliver goods for a fixed price, payable in cash on delivery, in which the owner would receive the price at the time of parting with his property, nothing further would remain to be done by the purchaser, and the rights of the seller could not be affected by the question whether the price was paid by the person with whom he originally contracted or by an assignee. Sears v. Conover, #42 N. Y. 113; 4 Abb. Dec. 179; Tyler v. Barrows, 6 Robt. 104. Second. Cases upon the question how far executors succeed to rights and liabilities under a contract of their testator. Hambly v. Trott, Cowp. 371, 375; Wentworth v. Cock, 10 Adol. & E. 42; 2 Perry & D. 251; 3 W. Ex'rs (7th ed.) 1723-1725. Assignment by operation of law, as in the case of an executor, is quite different from assignment by act of the party; and the one might be held to have been in the contemplation of the parties to this contract, although the other was not. A lease, for instance, even if containing an express covenant against assignment by the lessee, passes to his executor. And it is by no means clear that an executor would be bound to perform, or would be entitled to the benefit of such a contract as that now in question. Dickinson v. Calahan, 19 Penn. St. 227. Third. Cases of assignments by contractors for public works, in which the contracts and the statutes under which they were made were held to permit all persons to bid for the contracts and to execute them through third persons. Taylor v. Palmer, 31 Cal. 240, 247; St. Louis v. Clemens, 42 Mo. 69; Philadelphia v. Lockhardt. 73 Penn. St. 211; Devlin v. New York, 63 N. Y. 8. Fourth. Other cases of contracts assigned by the party who was to do certain work, not by the party who was to pay for it, and in which the question

was whether the work was of such a nature that it was intended to be performed by the original contractor only. Robson v. Drummond, 2 Barn. & Adol. 303; Waggon Co. v. Lea, 5 Q. B. Div. 149; Parsons v. Woodward, 22 N. J. Law, 196. Without considering whether all the cases cited were well decided, it is sufficient to say that none of them can control the decision of the present case. May 14, 1888. Arkansas Valley Smelting Co. v. Belden Min. Co. Opinion by Matthews, J.

CARRIERS OF PASSENGERS-TICKET CONTAINING CONDITIONS.-Defendant, a railroad corporation, sold plaintiff a ticket to a point beyond its own line upon a contract containing among other conditions, the following: That in selling the ticket defendant acted only as agent of the carrier beyond its own line, and was not responsible beyond that point; that it was not good for a return passage, unless the holder identified himself at the office of the second carrier, and unless the ticket was properly stamped, etc.; that plaintiff should identify himself whenever required by conductors or other agents of the road; and that no agent had authority to alter the terms of the contract. Plaintiff presented himself for identification at the required place and at a proper time before the departure of a train, but no agent was present to perform the services or stamp the ticket. After reaching defendant's road, plaintiff was ejected from the cars because his ticket was not properly stamped, although he offered to identify himself to the conductor who expelled him. Held, that defendant was not liable, as it was under no obligations to accept the ticket, according to the contract, until plaintiff had it properly stamped, and as it was not by defendant's failure that no agent was present to stamp it at the place of departure on the return trip. Townsend v. Railroad Co., 56 N. Y. 295; Shelton v. Railway Co., 29 Ohio St. 214; Frederick v. Railroad Co., 37 Mich. 342; Bradshaw v. Railroad Co., 135 Mass. 407; Murdock v. Railroad Co., 137 id. 293, 299; Railroad Co. v. Fleming, 14 Lea, 128. May 14, 1888. Mosher v. St. Louis, I. M. & S. Ry. Co. Opinion by Gray, J.

NEGOTIABLE INSTRUMENTS— CONSTRUCTION-PAROL EVIDENCE--The following note: "$1,061.24. DETROIT, MICH., August 4, 1880. Four (4) months after date we promise to pay to the order of Geo. Moebs, sec. & treas., ten hundred sixty-one & 24-100 dollars, at Merchants' & Manufacturers' National Bank, value received. PENINSULAR CIGAR CO., GEO. MOFBS, Sec. & Treas." Indorsed: "GEO. MOEBS, Sec. & Treas. : Held to be unambiguous, and in terms the note and indorsement of the Peninsular Cigar Company; and that parol evidence was not admissible to show that the indorsement was intended to be that of Moebs personally. Upon this question it may be said that the authorities are not entirely harmonious. Indeed there is much conflict among them. We do not find it essential or even useful to discuss minutely every authority cited by the respective parties to this controversy, some of which are believed to have little relevancy to the subject under consideration. A discussion of a few of the leading ones which are believed to embody all the principles involved in this case, and to control it, will perhaps be sufficient. Hitchcock v. Buchanan, 105 U. S. 416, is a case much in point on this subject. Indeed it was considered by the learned district judge below (who nevertheless disapproved of the ruling therein, and dissented from the opinion of the court below) as practically controlling this case adversely to the plaintiffs in error. In that case a bill of exchange, as follows: "85,477.13. OFFICE OF BELLEVILLE NAIL MILL CO., BELLEVILLE, ILL., December 15, 1875. Four months after date, pay to the order of John Stevens, Jr., cashier, fifty-four hun

dred and seventy-seven 13-100 dollars, value received, and charge same to account of Belleville Nail Mill Co. WM. C. BUCHANAN, Pres't. JAMES C. WAUGH, Sec'y. To J. H. Pieper, Treas., Belleville, Illinois,”--was held to be the bill of the company and not that of the individual signers; and it was also held that a declaration thereon against the latter as drawers, setting forth the instrument, and alleging it to be their bill of exchange, was bad on demurrer. In Carpenter v. Farnsworth, 106 Mass. 561, a check drawn on the Boston National Bauk, a copy of which is as follows: "$19.20. Etna Mills. BOSTON NATIONAL BANK, BOSTON. September 9, 1879. Pay to L. W. Chamberlain or J. E. Carpenter or order nineteen and twenty one-hundredths dollars. I. D. FARNSWORTH, Treasurer, "was held to be the check of the Etna Mills, and therefore binding upon the corporation, and not the treasurer, Farnsworth, personally. In Sayre v. Nichols, 7 Cal. 535, a draft. of which the following is a copy: "$3,000. No. 2,123. ADAMS & Co.'s EXPRESS AND BANKING HOUSE, MORMON ISLAND, February 21, 1855. Pay to A. G. Sayre, or order, three thousand dollars, value received, and charge same to account of this office. C. P. NICHOLS, per G. W. COREY, Agts. To Messrs. Adams & Co., Sacramento." Indorsed: "A. G. SAYRE, G. W. C."-was held to be the draft of Adams & Co., and not the personal draft of the persons who signed it as agents in this case. In Garton v. Bank, 34 Mich. 279, it was said: "A promissory note made payable to C. T. Allen, cashier, or order, indicates that it was made to him not as an individual, but as a bank officer, and that it was a contract with the bank; and in a suit upon it by the bank no indorsement by such cashier is necessary to the admission of the note in evidence." To the same effect see Mott v. Hicks, 1 Cow. 513, and cases there cited; Bank v. Bank, 19 N. Y. 312, and authorities cited in Story Ag., § 154. In 1 Pars. Notes & B. 92, it is said: "If the agent sign the note with his own name alone, and there is nothing on the face of the note to show that he was acting as agent, he will be personally liable on the note, and the principal will not be liable. And although it could be proved that the agency was disclosed to the payee when the note was made, and that it was the understanding of all parties that the principal and not the agent should be held, this will not generally be sufficient, either to discharge the agent or to render the principal liable on the note;" citing Stackpole v. Arnold, 11 Mass. 27. That case was an action against the defendant as maker of three promissory notes. The notes were signed by another person in his own name, and there was nothing on the face of them to indicate any agency, or that the defendant had any connection with them. At the trial the person who signed the notes testified that they were given for premiums upon policies of insurance procured by him in the office kept by the plaintiff, at the request and for the use of the defendant, on property belonging to him, and that the witness acted merely as the factor of the defendant, and intended to bind him by the premium notes. The judge instructed the jury that, "if they believed the notes to have been made and signed for and in behalf of the defendant, the verdict ought to be for the plaintiff." It was held that the evidence was improperly admitted, and the instruction was erroneous. The converse of the rule laid down in the last two cases cited would seem to be identical with that contended for on behalf of the defendant in error. On the other hand authorities to sustain the view of the case contended for on behalf of the plaintiffs in error are not wanting, either in number or in pertinence. In Kean v. Davis, 21 N. J. Law, 683, a bill of exchange of the following purport, addressed to William Thomson, Esq., Somerville, N. J., and indorsed, "THE ELIZA

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BETHTOWN AND SOMERVILLE RAILROAD COMPANY, by JOHN KEAN, President: " $500.00. ELIZABETH TOWN, September, 1841. Six months after date, please pay to the order of the Elizabethtown and Somerville Railroad Company, five hundred dollars, value received, and charge as ordered. Your obed't serv't, JOHN KEAN, President Elizabethtown and Somerville R. R. Co.,"-was held to be ambiguous on its face, not clearly showing whether John Kean individually or the railroad company was the drawer, and proof was admitted, in the language of the court, not to aid in the construction of the instrument, but to prove whose intrument it is." To the same effect see Chadsey v. McCreery, 27 Ill. 253; Vater v. Lewis, 36 Ind. 288; Hood v. Hallenbeck, 7 Hur, 362. Bank v. Bank, 5 Wheat. 326, is also claimed to be an authority in favor of the position taken by the plaintiffs in error. This was an action of assumpsit brought by the bank of Columbia against the Mechanics' Bank of Alexandria on the following check: "No. 18. MECHANICS' BANK OF ALEXANDRIA, June 25, 1817. Cashier of the Bank of Columbia: Pay to the order of P. H. Minor, Esq., ten thousand dollars. $10,000. WM. PAYTON, Jr." It was contended by the defendants that the check on its face was the individual check of Paton, and that evidence could not be received to show that it was in fact the check of the bank, and signed by Paton as cashier. On the other hand the plaintiffs contended that the check upon its face did not purport to be the private check of Paton, but the check of the bank, drawn by him as cashier, and that the presumption was that it was an official act. The court however decided that the check was ambiguous upon its face, that the marks indicating it to be the check of the bank predominated, and that the only ground upon which it could be contended that the check was the private check of Paton was that it had not below his name the initials for cashier. It was accordingly held that in such case testimony was admissible to explain the ambiguity and establish who was in fact the drawer of the check. The reasoning of the court in this last case leads irresistibly to the conclusion, that had the check under consideration been signed by Paton with the word "cashier" appended, there would then have been no ambiguity in it, but it would have been clearly and unequivocally the check of the bank. And in this view the case seems to be not necessarily an authority in favor of the plaintiffs in error, but rather an authority against them and in favor of the defendant in error. In 1 Dan. Neg. Inst., § 415, it is said: "If a note be payable to an individual, with the mere suffix of his official character, such suffix will be regarded as mere descriptio persona, and the individual is the payee;' citing Chadsey v. McCreery, Vater v. Lewis, supra, and Buffum v. Chadwick, 8 Mass. 103. Continuing, he says: "In New York a different doctrine prevails;" citing Babcock v. Beman, 11 N. Y. 200.

But in section 416 the rule laid down would seem to be in favor of the contention of the defendant in error; for it is there said: "Where a note is payable to a corporation by its corporate name, and is then indorsed by an authorized agent or official, with the suffix of his ministerial position, it will be regarded that he acts for his principal, who is disclosed on the paper as the payee, and who therefore is the only person who can transfer the legal title;" citing Bank v. Pepoon, 11 Mass. 288, and Elwell v. Dodge, 33 Barb. 336. Many more authorities are cited and might be dwelt upon almost ad infinitum. A discussion of all of them would greatly protract this opinion, and would subserve no beneficial result. In all this vast conflict-we had almost said anarchy-of the authorities bearing on the question under consideration, it is not easy to lay down any general rule on the subject which would be in harmony with all of them. It

seems to us however that the case of Hitchcock v. Buchanan, supra, controls the case at bar. May 14, 1888. Falk v. Moebs. Opinion by Lamar, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CARRIER-OF PASSENGERS-EJECTION OF PASSENGER -DAMAGES.-Where a passenger is rightfully in a railroad car, in the possession of a ticket entitling him to ride on that trip and train, and is deporting himself in a becoming and proper manner, and presents his ticket to the conductor when called upon therefor, but is informed by the conductor that his ticket will not be honored, because the time to ride thereon has expired, and that he must either leave the train or pay his fare, and not having any money, he does not pay the fare demanded, and thereupon the conductor takes hold of his coat-collar and leads him out of the car to the platform of the station; and when off the car, a friend of his gives him money to pay the extra fare, and the conductor accepts the fare, and then permits him to ride to his destination, held, that even if the conductor acted in good faith, and in the honest belief that the passenger had no right to ride upon the ticket he presented, he is entitled to recover from the railroad company the amount of the extra fare paid by him, with interest, and also actual compensation for the injury and indignity to which he was subjected. Held further, that if there was such a reckless indifference to the right of the passenger as to establish gross negligence, amounting to wantonness, on the part of the conductor, in examining the ticket presented by the passenger, and in ejecting him from the car, he is entitled to recover exemplary damages. In actions for the recovery of damages for the wrongful expulsion of a passenger from a train, the passenger may recover for his time, inconvenience, the necessary expenses to which he is subjected, and if treated with violence, or in an insulting manner, for the injuries to his person and feelings. If the expulsion be malicious, or through negligence which is gross and wanton, then exemplary damages may be awarded. "There is a special duty on the carrier to protect its passengers, not only against the violence and insults of strangers and co-passengers, but a fortiori against the violence and insults of its own servants; and for a breach of that duty it ought to be compelled to make the amplest reparation. The law wisely and justly holds it to a strict and rigorous accountability. We would not relax in the slightest degree this accountability. We know that upon it, in no small degree, depend the safety and comfort of passengers." Railway Co. v. Weaver, 16 Kans. 456; Railway Co. v. Kessler, 18 id. 523. We fully concede that no one has a right to resort to force to compel the performance of a contract made with him by another; and a passenger about to be wrongfully expelled from a railroad train need not require force to be exerted to secure his rights or increase his damages. For any breach of contract or gross negligence on the part of the conductor or the other employees of a railroad company redress must be sought in the courts rather than by the strong arm of the person who thinks himself about to be deprived of his rights. A passenger should not be permitted to invite a wrong, and then complain of it. Hall v. Railroad Co., 15 Fed. Rep. 57; Townsend v. Railroad Co., 56 N. Y. 301; Bradshaw v. Railroad Co., 135 Mass. 409: Railroad Co. v. Connell, 112 Ill. 296; Car Co. v. Reed, 75 id. 125; 3 Wood Ry. Law, § 364. Of course a party upon a train may resist, when under the circumstances resistance is necessary for the protection of

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his life, or to prevent probable serious injury; nor can a party be lawfully ejected from a train while in motion, so that his being put off would subject him to great peril. In this case Rice made no unreasonable resistance. He did not resort to force or violence. Having a good ticket, and being entitled to ride, he refused to pay fare or get off the train. The conductor had no difficulty in leading him off, and about all that Rice did was merely to assert his lawful right to ride upon the train. Where a passenger with a clear right and a clean ticket is entitled to ride on that trip and train, and is wrongfully ejected without forcible resistance upon his part, the jury are, and ought to be, allowed great latitude in assessing damages. They should award liberal damages in full compensation for the injuries received. The quiet and peaceable behavior of a passenger is to his advantage rather than to his detriment. Kaus. Sup. Ct., Feb. 11, 1888. Southern Kansas R. Co. v. Rice. Opinion by Hor

ton, C. J.

with the number of the drawing, each drawing being numbered in a class and the drawings put in envelopes; that he saw others do the same thing; after all who desired to had purchased numbers, the defendant took an envelope from the wall and took out a slip of paper with twelve numbers in each column, the numbers being below 78, and copied them on a blackboard, and also the class number; that a man came up and claimed $5, which defendant paid him; that he saw this repeated several times. Held, that the evidence was sufficient to warrant the jury in finding the game to be a lottery. Mass. Sup. Jud. Ct., Feb. 28, 1888. Commonwealth v. Sullivan. Opinion by Holmes, J.

EVIDENCE-DECLARATIONS OF AGENT.-D. sold a pump to C. & L., agreeing to properly place it in a well. He sent an agent for that purpose, and while engaged with one of the purchasers in setting the pump, it ac

cidentally fell into and destroyed the well. C. & L.

brought an action against D., alleging that the accident and injury resulted from the negligence of the agent; and to sustain the same offered to prove the declarations of the agent made two hours after the ac

the result of his own negligence. Held, that the declarations were mere hearsay, and inadmissible. Kans. Sup. Ct., Feb. 11, 1888. Dodge v. Childs. Opinion by Johnston, J.

MASTER AND SERVANT-LIABILITY FOR NEGLIGENCE OF SUPERVISING ARCHITECT.-When in the erection of a building on the owner's premises it becomes necessary or proper to undermine a rear wall on the adjoining lot, in order to secure a better foundation, the work being done under the direction of a supervising architect, subject to the control of the owner, the latter is liable for personal injuries to a workman, caused by the negligent performance of the work, notwithstanding the discretion given to the architect in directing the mode. Ala. Sup. Ct., Jan. 13, 1888. Campbell v. Lunsford. Opinion by Clopton, J.

CONTRACT-AGREEMENT NOT TO CARRY ON THE PROFESSION OF A SURGEON-ASSISTANT.-A. and B. were partners in the business of surgeons at N., and C. hav-cident had occurred to the effect that the accident was ing entered their employment as an assistant, executed a bond which recited that he had been taken into their employment on the terms "that he should not at any time set up on carry on the business or profession of a surgeon" in N. or within ten miles thereof. The partnership between A. and B. having been dissolved, they continued to practice separately in N., and C. entered into the service of B. as a salaried assistant. Held, that A. was entitled to an injunction restraining C. from acting as assistant to B. It is said, that assuming Mr. Palmer to be entitled to sue, yet defendant had not committed any breach of his contract that he should not at any time set up or carry on the business or profession of a surgeon, and it is said that the defendant is not doing so where he is simply acting as assistant at a salary for another man who is carrying on the business for his own benefit. I do not think that the question whether the appellant is carrying on the business or profession can depend on whether he is paid by a salary or by a certain share of the profits. It is true that in Allen v. Taylor, 24 L. T. Rep. 249, where there was a contraet not to carry on the trade of a rag-dealer, it was held that merely acting as a clerk or assistant to a person carrying on that trade was not a breach of the covenant. But an agreement not to carry on a trade is a very different thing from an agreement not to carry on a business or profession. Carrying on a trade" implies to my mind that the person engaged in it is engaged in it qua trade, that is to say, as a trade producing profit or loss which is to be shared by him, aud that is not the case if he is merely a salaried assistant. I cannot come to the conclusion that a man is less carrying on the profession of a surgeon because he is doing so as assistant to someone else. .. Profession" is different from trade, and it is much more emphatic to my mind than if "business" alone was here. When as here the words "carry on the business or profession of a surgion" are merely used to denote what is done by a man acting as a surgeon, a man, in my opinion, acts as surgeon and carries on the business of a surgeon none the less because he is not the principal or engaged in the business as a partner, but is merely carrying it on as assistant to somebody else. Eng. Ct. App., July 13, 1887. Palmer v. Mallett. Opinion by Cotton, L. J. 58 L. T. Rep. (N. S.) 64.

CRIMINAL LAW-LOTTERY-WHAT CONSTITUTES.On the trial of an indictment for setting up and promoting a lottery, a witness testified that he gave the defendant four numbers from a column of 78, and paid the defendant ten cents, receiving therefor a ticket

ASSUMPTION OF RISKS AMMONIA VAPOR.Plaintiff was engaged in making certain repairs in defendant's ice-machine house, and while doing so exposed himself to the current of ammonia vapor that escaped through one of the bolt-holes, of which he was aware. Held, that by continuing to work in the room, with knowledge that it was full of ammonia, he assumed all the risks arising from that cause. Penn. Sup. Ct., Feb. 20, 1888. Beittenmiller v. Bergner & Engel Brewing Co. Opinion per Curiam.

MUNICIPAL CORPORATIONS - TAX ON TELEPHONE
PERMISSION TO CON-

POLES CONSTITUTIONALITY

STRUCT TELEPHONE LINES CONTRACT.-(1) An annual charge of five dollars per pole upon the poles of a telephone company already established, imposed by a municipal ordinance as a "consideration for the privilege," is not a tax, either on property or as a license, and cannot be sustained as an exercise of the taxing power. The ordinance qualifies it as a price or consideration for the privileges enjoyed. It is not even alleged that defendant has ever consented or contracted to pay such consideration. There is entire absence of any legal tie binding the defendant as a debtor for the amount claimed, and if the city were suing simply for a money judgment, the petition would set forth no cause of action. The real relief claimed by the city however is found in the injunction prayed for, based on the theory that the provision of the ordinance referred to is a regulation or condition imposed upon the maintenance of the poles and exercise of the privileges which the city had the right to impose, and without compliance with which the defendant could not lawfully continue to maintain and exercise them. It is not seriously contended that the

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