general rule, and thereby break down a general principle by a Eminent Domain-Taking Land for Railroadsbreach that opens the door of intrusion, and gives to the intruder Entry Before Payment of Damages - When the right to determine the extent of his power to intrude through Owner May Maintain Ejectment. the breach he has himself assumed to make, making an exception, the exact limits and boundaries of which the ablest jurists THE SAINT JOSEPH & DENVER CITY RAILROAD COMhave never been able to convey a definite idea, with anything like consistency and uniformity, which is liable at any time to produce internal conflict and confusion, and which has almost continually been adopted with dissent and dissatisfaction? The circumstance and remarkable juncture of public affairs under which that dictum appeared in the opinion, thrust themselves into the estimate of its weight as authority, as no practicable purpose can be found in the opinion itself, for so labored an argument to prove what was not necessary to decide the case. As to all that part of the opinion not relating to the appellate jurisdiction of the court (which was the real matter in issue), it is a most ingenious argument, made gratuitously in a judicial decision, under the sanction of the highest judicial tribunal of the country, thereby attempting to give to it the sanctity of the judicial ermine-unassailable from habitual and traditional respectto stand in a high place, as a perpetual memorial of the assumed outrageous abuse of official authority in the alleged deprivation of a private right of a citizen by the executive department of the government of the United States then in power. Mr. Madison, then secretary of state under President Jefferson, who stood pre-eminent amongst the great men that framed the constitution, and who may be supposed to have understood its meaning, and to have desired its preservation equally with any one else, treats this effort on the part of the court to interfere with his official conduct, with-silence-(not to use a stronger term) in not answering to it; still he was not attached for contempt for not making a return to the writ, or otherwise making an answer in court; but instead of that, as it appears from the report of the case, some of the clerks of the secretary's office were picked up and brought into the court, from whom, it may be presumed, the facts were established upon which the argument, in that part of the opinion, was founded. It was surely not necessary to ascertain any fact whatever, except the application itself, of the relator Marbury, that it was an original suit, and not an appeal upon which fact alone the decision of the case was based and judgment rendered. And I borrow from him the reason why such an opinion so delivered should not be followed as a precedent, which is contained in the same opinion; that this is, or at least should be made to be, what he says it has been termed, a government of law and not of men," and I will presume to add, that it is high time that the judicial idolatry for a name, however great and deserving, should begin to cease in this country, by which a dictum of any court has been made the law of the land. I will close this opinion in the words of Sir William Blackstone, equally eminent for his great learning, and for his profound knowledge of the science of law and of government, as fully expressing my own mature convictions as applicable to this, and to all such cases, which is that: "NOTHING IS MORE TO BE AVOIDED IN A FREE CONSTITUTION, THAN UNITING THE PROVINCES OF A JUDGE AND A MINISTER OF STATE." -IN the case of McKeon, a bankrupt, recently heard before Judge Blatchford, of the United States District Court for the Southern District of New York, it appeared that in November, 1874, McKeon filed a voluntary petition in bankruptcy, and was adjudged a bankrupt. He afterwards affected an arrangement with his creditors, under section 17 of the amendment of 1874, for a composition, and the court confirmed the arrangement. McKeon then petitioned the court for a release and restoration of his property and books, in order that he might resume business, regain his standing and credit in the community, and thereby be enabled to carry out the terms of the compromise. Judge Blatchford declined to grant the petition. PANY v. CHARLES T. CALLENDER. Supreme Court of Kansas, November 24, 1874. Hon. Samuel A. KINGMAN, Chief Justice. David J. BREWER, Associate Justices. D. M. VALENTINE, BREWER, J.-The facts in this case are briefly as follows: In June, 1871, the plaintiff in error commenced proceedings to condemn the right of way through lands of defendant in error, situate in the county of Washington. Commissioners were duly appointed, who assessed the damages at $66.10. This amount was deposited with the county treasurer. All these proceedings were regular and conformed to the statute. Dissatisfied with the award of the commissioners, Callender appealed to the district court, and in August, 1872, obtained a verdict and judgment for $1200. Notwithstanding the appeal, the company entered upon Callender's land, constructed its road-bed, track, etc., and is now using it for the running of its trains. Upon the taking of this appeal by Callender, no bond was filed by the company as required by section I of chapter 74 of laws of 1870, and no other money has ever been paid or deposited than the $66.10 awarded by the commissioners. The judgment of the district court remains unsatisfied. In March, 1873, Callender commenced an action of ejectment to recover the possession of the land taken by the company. The district court rendered judgment in his favor, and of this judgment plaintiff in error complains, and by this proceeding in error now seeks its reversal. Upon the facts, as above stated, was Callender entitled to recover? The constitution, art. xii. sec. 4, provides that "no right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner." The amount of compensation to which Callender was entitled, has been finally determined to be $1200. This has not been paid nor secured by a deposit of money. The right of way has not, therefore, been appropriated to the company, and Callender is still the owner and entitled to the possession. As against this it is insisted that Callender has obtained and still holds a judgment for the damages, and that if permitted to recover in this action he will have both the land and a judgment for damages for its appropriation; that he stood by for nearly two years and permitted the company to occupy and expend large sums of money in improving this land, and that, therefore, it is too late for him now to question its right to occupy; he elected to pur sue his remedy for damages and must abide by that election. So far as regards the first part of this objection, it is enough to say that the recovery of possession would operate as a satisfaction of the judgment for damages, and any attempt thereafter to enforce its collection would be restrained and satisfaction ordered to be entered of record. Nor could the plaintiff assign his judgment so as to subject the company to double loss; either his assignment would be so far a guaranty to the assignee of an irrevocable right to enforce the collection of the judgment, as to estop him from disturbing the company's possession, or else the assignee would take the judgment subject to the risk of having it satisfied by the assignor's recovery of possession. This judgment is simply the final determination, in the manner pointed out by the statute, of the amount to be paid for the right of way. By payment, the right of way passes to the company; without it, nothing passes. sioners were appointed, the assessment made, the amount deposited, and notice given, all in conformity to the statute. The company then entered and took possession of the land. Dater appealed, and on the appeal a larger amount was awarded him. This amount not being paid, he brought ejectment, and the action was sustained. See also Loop v. Chamberlain, 20 Wis. 135: Henry v. The D. & P. R. R. Co., 10 Iowa, 540; Richards v. The DesMoines V. R. R. Co., 18 Iowa, 259; McClinton v. The P. Ft. W. & C. R. W. Co., 66 Penn. St. 404. We are aware of decisions seemingly adverse to the views here expressed. Among them are, McAulay v. The W. V. R. R. Co. et al., 33 Vt. 311. Goodin et al. v. The C. & W. Canal Co. et al., 18 Oh. St. 169; and a late case, Provost v. C. R. I. & P. R. R. Co., decided by the Supreme Court of Missouri, and reported in 1st CENTRAL LAW JOURNAL, 509. Yet these cases are not exactly parallel with this. In the opinion in each of those cases, stress is laid on the fact that the land-owner had full knowledge of the acts of the company in enthe occupation had been continued some eight years before the tering upon his land and constructing the road. In the first case, action was brought. The land-owner had, prior to any occupation by the company, signed an agreement to take stock of the company in payment of his damages, an agreement which he subsequently seemed anxious to avoid. In reference to which the court says: "He does not seem to have insisted thatthe first appraisal should be deposited during the pendency of the appeal, and before the work proceeded further. His great desire seems to have been that the damages should be agreed upon, and that he should be released from all claim under the written agreement to accept stock. To this extent his remonstrances were loud and In regard to the latter part of the objection, it may be remarked that the record shows no formal assent to, nor even any actual knowledge of, the occupation by the company. The evidence is not preserved, and we have simply the pleadings, findings and judgment. True, the court finds that Callender was the owner and in possession prior to the entry by the company; but this may mean that constructive possession that follows title, or it may mean possession by tenant. It does not necessarily import actual occupation or actual knowledge of the company's entry and improvements. Now, a party ignorant of another's entry upon his land, and expenditure of money and labor in improvements thereon, can hardly be said to have acquiesced in such entry and improvements, as to be estopped from thereafter setting up his own rights to the land. But conceding that possession, as stated in the findings, means actual occupation and implies actual knowledge, and still we think the doctrine of estoppel will not help the plaintiff in error. Both the company and land-owner act with knowledge that the right of way cannot be appropriated until full compensation therefor has sufficiently intelligible." It appeared, also, that after the dambeen first made in money or secured by a deposit of money. Of ages had been finally ascertained, the stock therefor was duly tencourse this deposit must be such as secures full compensation. A dered and refused. It would seem a reasonable inference from deposit of $66.10 does not secure full compensation for $1200 dama- the facts, as stated in that case, that the land-owner had waived ges. The company initiates the proceedings and summons the his right to insist upon pre-payment. In the second case, the land-owner before a tribunal for the assessment of his damages. plaintiffs were stockholders in a canal company. A railroad All the proceedings are in conformity to law, and the assessment company desired the bed of the canal for its railway track, and is made an assessment in this case, as appears from the verdict of the canal company being much embarrassed, the president of the the jury, grossly inadequate to the actual damages sustained. All railroad company bought up a majority of its stock at very low that the land-owner can now litigate, so far as these condemnation rates, put in a new board of directors in the interest of the railproceedings are concerned, is the amount of damages. There is road company, and then the directory of the two companies, by no secret defect in these proceedings which he is now for the first agreement, and without referring the matter to any commissioners time springing upon the company, ignorant of its existence. He or jury, fixed the damages to be paid to the canal company at a concedes that all is regular. He initiates no new proceedings, but grossly inadequate sum. The railroad company took possession simply pursues those already initiated by the company. If he does of the canal, constructed its road, and was in full possession, operanot appeal, the company acquires the right of way, and he must be ting its trains, etc., when the plaintiffs brought this action, asking contented with the award of the commissioners. Hence, it seems that the pretended sale or condemnation be set aside, and the railhardly fair to say that he elected to pursue a mere claim for dama- road company enjoined from further use of the canal-bed. The and waived all his rights to the land. By his appeal, how-supreme court conceding the invalidity of the sale, held that the ever, he gives notice to the company that the amount awarded is plaintiffs were too late to obtain relief by injunction, though they not full compensation, and that more must be paid before any might proceed to obtain full compensation. Quoting from a prior right of way is appropriated. If, after this notice, and without his opinion, the court says: "Before a stockholder can be entitled consent, the company sends its workmen on his land and builds its to a remedy by injunction, against such departure from the origiroad, what room is there for the application of the doctrine of es- nal objects of the incorporation, he must have shown himself toppel? There is no misrepresentation, no concealment on the part prompt and vigilant in the assertion of his rights as such stockof the land-owner. The company acts with full knowledge of his holder. It will not do for him to wait until the mischief of which rights and claims, and its own obligations. It was a trespasser, he complains is accomplished, fortunes expended, and great public abinitio, and ought rather to atone for its trespass than to attempt interests created. If he does, he must be held to have acquiesced to make the trespass a means of wresting the land-owner's property in the change, or to content himself with some other form of remfrom him without compensation. edy." Prima facie this transfer of the canal-bed was valid. The regular officers of the canal company had executed the proper conveyances. Upon the faith of this apparently valid transaction, improvements had been made, and large sums of money expended. The invalidity of the transfer grew out of the bad faith of the officers of the canal company. If the stockholders did not interfere, at the first possible moment, to prevent the wrong attempted by their officers, and to prevent innocent parties from expending money on the faith thereof, it might well be that equity would refuse to interfere further than to secure them adequate ges, The case of Dater v. The Troy T. & R. R. Co., 2 Hill, 629, is strongly in point. There the act incorporating the company authorized it to condemn the right of way, provided for the appointment of commissioners, and the assessment of damages, and declared that if, upon the making of such assessment, the amount thereof was deposited to the credit of the land-owner, and notice thereof given to him, the company should then become seized of the land in fee simple. It also authorized an appeal from the assessment of the commissioners to the chancellor. Commis Lim. 191. A view into the history of the law of municipal corporations for the last compensation. The case from Missouri is more nearly parallel. boards and officers, is not understood to belong properly to the state." Const. Indeed, the only important difference is, that in that, it appears that the land-owner was present all the time and had full knowledge of the company's operations in entering upon, and construct-hundred years, shows a constantly increasing tendency to extend the power of ing its road-bed over, his land. His failure to object to this, was held a waiver of his right to recover possession. Though it was said that "a court of equity would unquestionably interfere, if necessary, and place the road in the hands of receivers until the damages were paid from the earnings." It may be remarked, in reference to each of these cases, that the constitutions of those states have no such stringent imperative provision as is found in ours. At any rate, we cannot assent to the doctrine, that while litigating in a proceeding which the company has instituted, the amount of damages to which he is entitled for the appropriation of his land to its use, the land-owner must also resist by force, or judicial proceedings, the entry upon his land, or lose the plain remedy which ordinarily accrues when another party is found in wrongful possession thereof. The Judgment of the district court will be affirmed. All the justices concurring. Notes and Queries. CAN THE LEGISLATURE OF A STATE EMPOWER MUNICIPAL CORPORA- EDITORS CENTRAL LAW JOURNAL:-The question submitted by G. and S., through the JOURNAL, for November 20th, page 586, has enlisted my attention and interest, and after some consideration I may be permitted to advance the following opinion: The constitution of Texas prohibits the legislature from passing local or special laws, "incorporating cities or towns, or changing or amending the charter of any city or village," and "in all cases where a general law can be made applicable, no special law shall be enacted." Under this constitution the legislature passed an act, empowering "any incorporated town or city," to amend its own charter" whenever in the judgment of the board of aldermen," an amendment becomes necessary or desirable. The statute further provides the manner of proposing and voting upon amendments, and requires a majority of the votes cast to be in favor of it. Section 4, of the act reads thus: "No amendments shall be proposed or submitted by any board of aldermen, which shall contravene, or be repugnant to the constitution or statute laws of this state." these organizations. From the time when the power of creating corporations was considered "a flower of the prerogative" until the present day, the idea of local self government has kept even pace with every other idea advancing free and liberal institutions and government. Whether it be a delegation of legislative power, or whether such power belongs to the corporation by virtue of our customs and principles of government, it is needless to cite authorities to establish the fact that municipal corporations have, and exercise, many of the most important functions of government, and I am pursuaded that the same principle under which municipal corporations are empowered to exercise these important functions—such as levying and collecting taxes, exercising the right of eminent domain, passing ordinances, by-laws, etc.-would warrant the legislature in granting to corporations the power to alter or amend their own charters, limited in the manner set forth by the act of the Texas legislature. The legislature, by this act, does not deprive itself of the power to control and supervise the municipality in the exercise of all its privileges and powers under the charter. Since the amendments proposed must always be in conformity to the constitution and laws of the state, the legislature, by negative or prohibitory laws, can limit the power of the corporation to any desired extent. Practically, important amendments to city charters are seldom or never made by the legislature, without first consulting the wishes of the inhabitants thereof, or by making the amendment upon condition that a majority of the qualified voters shall be in favor of it. This act of the Texas legislature does nothing more than this; nothing less. It empowers cities and towns, in the first instance, to propose and vote upon amendments which may be thought necessary by the board of alderThe amendments which the city or town may adopt can affect only those subject to or within the limits of the corporation. men. The legislature does not submit the enactment to the vote of the people for approval or adoption. This, it is clear from the decisions, it is not competent to do; but the legislature may pass a law which depends for its effect upon the condition of its being accepted by those whom it is intended to benefit by the law. This distinction and the law relative thereto are very ably examined by Wagner, J., in the case of The State v Wilcox, 45 Mo. R. 458. We may, I think, apply the language of the court there used to the case now under consideration: "The law is complete and effective when it has passed through the forms prescribed for its enactment, though it may not operate, or its influence may not be felt, until a subject has arisen upon which it can act." From the decisions, I apprehend that the objection above suggested would not be sustained as to this law. What limit, then, is there to the delegating of power to municipal corporations by the legislature? If the constitution, in this respect, be silent, I can conceive of but two limitations. (1.) The legislature cannot deprive itself of the power to supervise and control all municipal corporations. (2.) The power granted to municipal corporations must be confined to local government. Certainly there is nothing in the act contravening or repugnant to the constitutional provision relative to corporations, as quoted above. The only limit being that the law shall not be local or special. The law under consideration is very general in its terms, applying to all incorporated towns and cities that may desire to avail themselves of its provisions. In truth, we may reasonably inferthat it was this worthy desire of the legislature to comply strictly with the consti, tation," not to pass a special enactment where a general law is applicable,"that has led to the enactment of a law so general in its terms, not in its application, merely, but in its effects, as to raise the very serious question, whether or not a long recognized and well established maxim of constitutional law has been violated. That maxim, in the language of Judge Cooley, is this: "The power conferred upon the legislature to make laws, cannot be delegated by tendencies are centrifugal, tending to diffuse power among the members rather that department to any other body or authority. Const. Lim. 116. We have, then, this question: Is the statute under consideration such a delegation of legislative power as to be contrary to the letter or the spirit of the constitutional provision vesting the law-making power in the legislative department alone? We assume, of course, that the constitution of Texas contains this provision. Perkins, J., in the case of The City of Aurora v. West et al., 9 Ind. 74, is authority for the following: "We think the proposition may be asserted that one government may act within the territorial limits of another, with the consent of that other." Under republican governments where the political than concentrate it in the head of the body politic, we may expect greater powers of local government entrusted to the municipal corporations scattered over the state." Lafayette v. Cox, 5 Ind. 38. The constitution of the state of Indiana authorizes the legislature to create corporations and imposes no limit as to the powers to be conferred upon them: no clause confining their action to objects entirely disconnected with anything outside the corporate limits." "Under this constitution the law creating the corporation will be the index to the powers with which it is endowed, if the grant does not conflict with some other provision of the constitution than those above mentioned, or exceed the powers of the legislature itself." City of Aurora v. West, above cited. Were we to accept the maxim above referred to, in its broadest and most general meaning, we should have no hesitancy in answering the question in the affirmative. But it will be found, upon further consideration, that this general principle is greatly modified and limited in its signification by other maxims and principles equally well established in the law. From the same respectable authority already quoted, take the following: But funWhen we consider, then, the purposes for which municipal corporations are damental as this maxim is, it is so qualified by the customs of our organized, the powers with which they have been endowed, the constantly race, and by other maxims which regard local government, that the right increasing tendency to extend those powers of the legislature to oversee and of the legislature in the entire absence of authorization or prohibition to control them in the exercise of their functions, and, finally, that it is usual not create towns and other inferior municipal organizations, and to confer upon to amend or alter the charter of a corporation unless desired by a majority of them the powers of local government, and especially of local taxation and the citizens thereof, we are led to the conclusion that the law enacted by the police regulation usual with such corporations, would always pass unchal- legislature of Texas, was not only constitutional, but wise and judicious. lenged. The legislature in these cases is not regarded as delegating its authorty, because the regulation of such local affairs, as are commonly left to local Bloomington, Ill. C. D. M Book Notices. A TREATISE ON THE LAW OF CONTRACTS. BY WILLIAM W. STORY. In two volumes. Fifth edition. By MELVILLE M. BIGELOW. Boston: Little, Brown & Co. 1874. This work, written by a son of Mr. Justice Story, and dedicated to his illustrious father, originally appeared in 1844. It has stood the test of time. It went to a second edition in 1847, to a third in 1851, and to a fourth in 1856. All the preceeding editions appeared under the supervision of the author, and each successive edition was enlarged and modified to bring it down to the time of its appearance. The present edition is distinguished by many valuable additions, and so extensive have been the changes that it is almost substantially a new work. Judge Bennett, it is stated, worked a year upon the preparation of the present edition, when he was compelled to relinguish it by reason of ill-health. Fortunately the work fell into the hands of Mr. Bigelow, whose previous labors have given the profession assurance that whatever he undertakes to do will be well done. Two new chapters have been added to the present edition, one on bills and notes, and one on telegraph companies. Three thousand additional cases, coming down to the very latest date, have been added, and there is no work in the language on the subject of Contracts which rivals the present edition of this work in comprehensiveness, except the excellent treatise of Professor Parsons. We observe that Mr. Bigelow has taken obvious pains to give, with great fulness, the most recent English and American cases upon the subject of contracts. This is a marked and most valuable feature of the book. In this Municipal Indebtedness-Constitutional Limit of, in Iowa, Applies to School Districts-School Orders not Negotiable-Defences against-Claims against School District must be auditedRights of Assignee of Such order.-The National State Bank v. Independent School District of Marshall County. [8 West. Jur. 746.] 1. The constitutional limit for municipal indebtedness, of five per centum of the taxable property within the corporation (Art. 3, Sec. 2), applies to an independent school district. 2. Where a school district issued orders in excess of the constitutional limit, in payment for building a school house, it is invalid in the hands of an assignee; such orders are not negotiable. 3. Under Sec. 26, Chap. 172, Laws Ninth General Assembly, no order shall be drawn on the treasury of a school district until the claim for which it is drawn has been audited and allowed, and when the order was issued May 20, 1868, it is not cured by Chap. 98, of the Acts of the 12th General Assembly, which is retrospective only and was approved April 12, 1868. school house, and which was issued after the constitutional limit of indebted4. The assignee of a school order issued in part payment for building a ness for the school district was exceeded, in an action upon such order, canfor the cause of claim upon which the order was issued. not by a simple change of the pleading, after the evidence is closed, recover 24 OHIO STATE REPORts (Advance SHEETS, FROM Robert Clarke & Co., CINCINNATI). Contracts against Public Policy--Betting on Election.-Lucas v. respect it gives the reader what he can find nowhere else so fully and satis- Harper. [24 Ohio State, 328.] By the court. During the pendency of an factorily presented. A TREATISE ON EXTRAORDINARY LEGAL REMEDIES, embracing Mandamus, Quo Warranto and Prohibition. By JAMES L. HIGH, author of Law of Injunctions. Chicago: Callahan & Co. 1874. The admitted excellence of Mr. High's Treatise on Injunctions, and the great favor with which it was received by the profession, made in advance a prima facie case for the present work, as in a generel way there is a considerable analogy between the extraordinary remedy of the court of equity, a writ of injunction, and the extraordinary remedies of the Common Law tribunals here treated of, namely, mandamus, quo warranto and prohibition, The latter writ, although extensively in use in some parts of the country, particularly in a portion of the Southern states, is not as important as the writ of mandamus and the proceedings by quo warranto or informations in the nature of quo warranto; and of the latter remedies mandamus is the one the most frequently needed to compel inferior courts, public officers and corporations to discharge the duties they owe to the public or to individuals. The author has, therefore, judiciously allotted the greater portion of his work to the subject of Mandamus, which he has treated with more fulness than any American author. It is well-known that Mr. Tapping's work is one of great merit, but much of it is of value in this country only by way of illustration of the learning pertaining to the subject. Many portions of it are practically inapplicable here, and it needs a thorough understanding of the structure and character of the old English corporations and public bodies to prevent an American lawyer or judge being occasionally misled by false analogies. We should ourselves very seriously object to any part of Mr. Tapping's work being omitted in a republication in this country, and yet we can appreciate the work of the present author, who has undertaken to give us the doctrines of the English cases so far as they have a practical value in this country. The every day lawyer can get a better idea of the English decisions from this book than he can from Mr. Tapping, and yet it is not to be implied that it will supersede that work. No American writer has treated the subject with any approach to the thoroughness and fulness of Mr. High, and there was room in our legal literature for the present work. We think we are safe in saying, that if an American lawyer can own but one book on the subjects here treated, it will hereafter be that of Mr. High. We have no hesitation in commending it to our readers as a treatise of great merits and usefulness. It bears throughout, the most indubitable evidences of the author's industry, skill and pains-taking care. Summary of our Legal Exchanges. WESTERN JURIST (DES MOINES, IOWA), DEC., 1874. Witness Fees.-Harden v. Polk County, Supreme Court of Iowa, opinion by Beck, J. [8 West. Jur. 744.] The Iowa Code, ? 3814, provides that "witnesses in any court of record shall receive for each day's attendance one dollar and twenty-five cents." Under this provision it is held that a witness who is subpoenaed in more than one case to attend court upon the same day is entitled to the attendance fee and mileage for one day's attendance only. In Moffut v. Dubuque & B. R. R. Co., a similar ruling was made under a pifferent statute. election for President of the United States. for which office H. G. and U. S. G. were opposing candidates, the defendant in error agreed to sell, and the plaintiff in error agreed to buy, a lot of hogs at the price of nine cents per pound, to be paid for when H. G. should be elected. The market price of hogs at the date of the contract was less than four and a half cents per pound. In pursuance of the contract, the hogs were delivered by the defendant in error to the plaintiff in error, who converted them to his own use. The election having resulted in the defeat of H. G., the defendant in error brought suit against the plaintiff in error and recovered the market value of the 2. That the hogs were hogs. Held: 1. That the transaction was a wager. delivered by the person losing the wager to the person winning, within the meaning of the act of March 12, 1831, S. & C. 664. Rape-Evidence-Outcry after Prosecutrix Received Knowledge that the Act had been Witnessed by Third Persons.— McFarland v. State. [24 Ohio State, 329.] By the court. On the trial of an indictment for rape, the state called the prosecuting witness, who testified to the commission of the alleged crime, and afterward called another witness, who testified in corroboration of the prosecutrix, that soon after the offence was alleged to have been committed, the prosecutrix made complaint thereof in his presence. Held: That it was error to exclude, on the cross-examination of the last-named witness, testimony tending to show that, between the time the offence was alleged to have been committed and the time such complaint was made, the prosecutrix had been informed that the act of sexual intercoure, constituting the alleged crime, had been witnessed by other persons. Action for Injuries Received through being Bitten by Vicious Dog-Measure of Damages-Care and Medical Attendance.— Gries v. Zeck [24 Ohio State, 329,] Stone, J. 1. One who, without his fault, is bitten by a dog, may, under the act of March 24, 1860 (S. & C. St. 71), maintain an action against the owner without averring or proving that the latter had knowledge of the vicious propensity of his dog. The rule of the common law requiring, in such cases, an averment and proof of scienter is abrogated by the statute. 2. In an action for injuries to the person, reasonable expenses incurred for care and medical attendance, made necessary by the injury, may properly be included by the jury in their estimate of compensatory damages, although such expenses have not been actually paid. Code Pleading-Action on Fire Insurance Policy-Averment of Insurable Interest.-Peoples' Fire Ins. Co. v. Heart. [24 Ohio State, 331.] By the court. Where, in an action upon a policy of insurance, it appears from the petition that the insurance company, for a specified premium, executed and delivered a policy insuring A. against loss by fire, on specific property occupied by the insured, an insurable interest in the insured, under the code, is sufficiently shown. Removal of Fixtures by Vendee who has given a Mortgage for Purchase Money-Liability of Purchasers of such Fixtures Action to Subject Remaining Premises to Sale-Joinder of Purchaser of Fixtures as Defendants.-Smith v. Atleck. [24 Ohio State, 369.] Where A, sold lands, on which a distillery, with the necessary fix tures, had theretofore been erected, to B., by a written contract, which contained a stipulation, that upon the execution of the deed to B. he was to deliver to A. a mortgage on the premises sold, to secure the payment of the remainder of the purchase-money, and B. took possession of said premises under said contract. Held: 1. That B. had no right, while in possession of said premises, either under said contract or as mortgagor, to sever and dispose of the fixtures of said distillery, if thereby the security for the purchase-money was rendered insufficient. 2. That purchasers of such fixtures from B., chargeable with know!edge of the rights of A,, he being guilty of no laches, are liable to A. for the value of such fixtures, if it be afterward found that the value of the remaining security is insufficient to pay the purchase-money due. 3. That in an action brought by A., either on the contract or mortgage, to subject the remaining premises to sale, to pay such purchase money, A. may join with B. in such action, as such purchasers, and subject the value of the fixtures purchased by them to the payment of any portion of the purchase-money that may remain due after the application thereto of the proceeds of the sale of said remaining premises, according to the inverse order of the time in which the purchases were made. Rix, J., in delivering the opinion of the court, said: "Without attempting to determine the rights of vendees in possession of real estate, under contracts of sale, in ordinary cases, it is quite clear that under the contract set out in the amended petition in this case, the vendee had no right to change the condition of the property, in so far as the distillery and fixtures therein contained were concerned, without the knowledge and consent of the vendor. The record in the case discloses the fact that the fixtures of the distillery, after they were severed and removed therefrom, were of greater value than the remainder of the mortgaged premises, including the building in which the fixtures were at the time the contract of sale was made, and hence the reason for the provision in the contract, that the description of the real estate to be covered by the mortgage, should include the distillery and fixtures therein contained, is readily preceived. Under this contract, as to all persons having notice of its terms and conditions, the right of the vendor to subject the value of the fixtures purchased by such persons of the vendee, to make up any loss sustained by him on account of the diminution in value of the premises by reason of their removal sons presenting the certificates thus fraudulently disposed of by Mandle, made them parties defendant to the suit by filing a supplemental bill. Application was then made for an injunction restraining the defendants, pendente lite, from receiving certificates of the board of audit in exchange for the certificates of the auditor of the board of public works in question. As to the character of the certificates, Judge Wylie holds that they are not bonds of the district,nor obligations of any kind issued by its authority; that they are merely written statements made and signed by the auditor, showing that the contractors named possessed a valid claim against the District of Columbia of the amount specified, but not conclusive even as to this; that they do not amount to so much as a chose in action, not even to evidence of a chose in action, because it is the money due upon the contract, and not the paper used as evidence, which is the chose in action, the act of Congress making the certficates evidence before the board of audit gave them a character which they did not have at the time they were issued. That a purchaser of the certificates, by assignment from the contractor, gains no more than if he had taken an assignment of the contractor's claims, without the certificates, which would be the assignment of a bare chose in action, and that the assignee of a chose in action, takes subject to all the equities which subsist against the assignor. PITTSBURG LEGAL JOURNAL, DEC. 16. Petition by Surety to Open Judgment and for Issue-Allegations Showing him Entitled to Discharge Must be SpecificConsideration for Promise of Delay-Agreement to Pay Interest After Note is Due-Release of Surety.-Smith v. House, Common Pleas of Washington County, Penn. [5. Pittsb. L. J. (N. S.) 65.] 1. In the petition by a surety on a judgment note for rule to open and for an issue, alleging an agreement and an extension obtained by the principal from the payee, without the knowledge or consent of the surety, the grounds of the relief asked for must be averred specifically as to the nature, terms and consideration of the alleged binding agreement. 2. Hartman v. Danner, 20 Pittsb. Legal Journal, 151, does not impugn the doctrine that an agreement to pay interest for a specified time to the holder after the note has become due, is a sufficient consideration for a promise of the vendor being guilty of no laches, is as perfect as that of a mortgagee' delay, and, if made without the knowledge and consent of the surety, will whose mortgage has been properly placed on record. In the latter case, it is held by the Supreme Court of Pensylvania, in Hoskin v. Woodward, 45 Penn St. 42, that the record of the mortgage affects the purchaser of a fixture from mortgaged premises, with the knowledge of the existing lien. The right of a mortgagee to recover of purchasers from the mortgagor, the value of fixtures severed and removed from mortgaged premises, whereby the value of the security has been diminished to the injury of the mortgagee, has been sustained by the courts of other states in the following well-considered cases: Hoskin v. Woodward, above cited; Cole v. Stewart, II Cush. 181; Van Pelt v. McGraw, 4 Comst, 110; Rogers et al. v. Gillinger et al., 30 Penn. St. 185; Gore v. Jemess et al., 19 Maine, 53; Smith v. Goodwin, 2 Greenleaf, 175; Gray v. Holdship, 17 Serg. & Rawle, 413. This question has also been authoritatively settled in this state, in Allison v. McCune, 15 Ohio, 726. 'The cases of the Commercial Bank of Lake Erie v. The Western Reserve Bank, 11 Ohio, 444; Nellons et al. v. Truax et al., 6 Ohio St. 97, and Anketel and Wife v. Converse et al., 17 Ohio St. II, establish, as to purchasers of incumbered real estate, "that the several purchasers of incumbered property are liable to the payment of the lien upon it, according to the universal order of time in which they acquired ownership. The reasons urged for the adoption of this rule, in the cases cited, apply with equal force to cases of purchases of fixtures from mortgaged premises, and as we hold in this case, that the plaintiff, as vendor, can enforce the same remedies against purchasers of fixtures from his vendee, having notice of his rights under the contract of sale, the same rule will apply." WASHINGTON LAW REPORTER, DECEMBER 22. Certificates of Auditor of Late Board of Public Works of District of Columbia not Negotiable, nor are they Choses in Action. -Ballard Pavement Company v. Mandle, Supreme Court of District of Columbia, before Wyley, J., [Wash. Law Rep. 344]. The question involved in this case, according to the synopsis of the editor of the Washington Law Re porter, was the negotiability of the certificates issued to contractors by the auditor of the late board of public works. Plaintiffs, in February last, filed their bill to have the defendants enjoined from receiving certificates of the board of audit, in exchange for certain certificates of the auditor of the board of public works, which the plaintiffs had deposited with the defendannt, Mandle, as collateral security for the payment of the plaintiff's notes, and which Mandle had sold to bona fide purchasers before the maturity of the notes. The plaintiffs having recently obtained from the board of audit the names of the per. release him. Constitutional Law-Construction of Provisions that no Act of the Legislature shall Contain more than one Subject, which shall be Expressed in the Title.-Allegheny County Home's Appeal, Supreme Court of Pennsylvania, October and November Terms, 1874. [5 Pittsb. L. S. (N. J.) 65]. By the act of April 15, 1867, the borough of Laurenceville, the townships of Pitt, Oakland, Collins, Liberty and Peebles, were taken from Allegheny county and annexed to the city of Pittsburgh, they being part of the poor district of Allegheny county, known as the Allegheny County Home," and having an interest in the county Poor Farm, on the 25th of May, 1871, an act was passed entitled An Act providing for an equitable division of property between Allegheny county and the city of Pittsburgh." The petition prayed for the appointment of three commissioners under this act to enquire, 1. The value of The Allegheny County Home" property. 2. To ascertain the interest and share of said borough and townships in the property of the "Allegheny County Home" at the time of annexation, according to their population and taxable property, and the value of said share and interest. 3. To ascertain what sum should be paid by the Allegheny County Home to the guardians of the city poor. To this petition 'The County Home" objected that by the 3d Amend. ment of 1864 to the constitution of Pennsylvania, sec. 8, art. 11, it is provided: "No bill shall be passed by the legislature, containing more than one subject, which shall be clearly expressed in the title, except appropriation bills;" that the title to the act of May 25th, 1871, is "An Act providing for an equitable division of property between Allegheny county and city of Pittsburgh," while the said act contained two distinct subjects, viz.: the division of the property between "The Allegheny County Home" and The Guardians of the Poor of the city of Pittsburgh," and also between "Allegheny County Home" and "The Guardians of the Poor of Allegheny City," neither of which objects is clearly expressed in the title-all three corporations being distinct from Allegheny county and city of Pittsburgh; and that the Act of May 25th, 1871, was hence unconstitutional. These objections the Supreme Court overruled, and in doing so used the following language: The course of decision in this court has been intended to carry out the true intent of the amendment of 1864, as to the title and subject of bills, instead of resorting to sharp criticism, which must often bring legislation to nought. The amendment of 1864 was in substance proposed in the constituional convention of 1837-8, and rejected because it was feared it would |