charge the indorser. Opinion by ORTON, J.-Hale v. Danforth.

FIXTURES-LEASE-SURRENDER. 1. Iffixtures which a lessee has a right to remove while in possession of the premises, are left until after such possession is surrendered, without agreement reserving to the lessee the right of removal, the lessor takes title to them as part of the realty. Keogh v. Daniel, 12 Wis. 164. 2. The fact that lessees, before surrendering the possession, asked the lessor if they might leave the fixtures in the room rented, which was a store, and that the lessor replied he was willing they should be left, as they might help him to rent the store, can not be held by the court to imply a license to the lessees to reenter and remove such fixtures. 3. In replevin by the lessees for such fixtures, the officer having severed them from the realty in executing the writ, there was no error in awarding to the lessor a judgment for their return. Opinion by RYAN, C. J.-Josslyn v. McCabe.

MUNICIPAL CORPORATIONS-NEGLIGENCE-CHARTER EXEMPTIONS INVALID.-1. Sec. 1. chap. 20 of the charter of Milwaukee (Laws of 1874, ch. 184), provides in substance that when any injury happens to persons or property in said city by reason of any defect or incumbrance of any street, sidewalk, etc., or other cause for which the city would otherwise be liable, if such defect, incumbrance or other cause is produced by the default of any person, such person shall be primarily liable, etc. Held, valid, but not applicable where the defective condition of the highway is caused by the negligence of persons making public improvements under contract with the city. 2. Sec. 2 of the same chapter in terms exempts the city from any liability for injuries to persons or property incurred at any place therein where work is being done on streets or sidewalks by contractors with the board of public works, in consequence of the condition of such streets or sidewalks arising from the doing of such work; but it declares the contractors liable for such injuries caused by their negligence, Held, invalid, as granting to said city a special immunity against a general rule of law to which other municipal corporations are subject. Durkee v. Janesville, 28 Wis. 464. Opinion by COLE, J.-Hincks v. City of Milwaukee.

NEGLIGENCE-INSTRUCTIONS- EVIDENCE-DAMAGES.-1. In an action at law where the material issues were all fully and clearly submitted to the jury, and specifically found by them, upon proper and sufficient evidence, and the judgment is sustained by the findings, there will be no reversal, unless it appears that the jury was misled to appellant's prejudice by instructions given, or by the refusal of proper instructions. 2. In an action for injuries to the person from defendant's negligence in driving his team so as to produce a collision of his wagon with that of plaintiff, the court instructed the jury that, in determining the question of defendant's negligence," they must bring to bear upon the question their own knowledge and judgment," and added that they must examine all the testimony, all the circumstances, and then apply their own judgment and good sense. Held, no error. 3. Where the findings were to be special, and no general verdict required, there was no error in instructing the jury that they had "nothing to do with the question of recovery," evidently meaning that they were to answer the special interrogatories without reference to the legal conclusions which the court might draw from them. 4. An instruction that it did not "make any difference how careless plaintiff might have been," followed immediately by language showing the meaning to be that no degree of negligence on his part would defeat a recovery, unless it contributed to the injury, was not error. 5. A further instruction that if the jury thought that plaintiff was not guilty of any want of ordinary care, they should answer negatively an in

terrogatory on that point: Held, in view of other parts of the charge, not liable to mislead a jury into a belief that their findings were not to be determined by the evidence in the case. Nauman v. Zoerhlaut, 21 Wis. 466, distinguished. 6. The mere fact (if a fact) that plaintiff was violating the law of the road at the time of the accident (by letting his horse and wagon stand in the center of a village street), will not prevent a recovery, if such unlawful act did not produce, or directly contribute to produce, the accident. O'Mally v. Dorn, 7 Wis. 236; Sutton v. Wauwautosa, 29 Id. 21; McArthur v. G. B. & M Canal Co., 34 Id. 139. 7. Where negligence is not a necessary inference from the facts in evidence, the question should not be taken from the jury. 8. The true question in respect to neg. ligence is, not whether the party "exercised his best judgment under the circumstances," but whether be exercised "such care as the great majority of mankind observe in the transactions of human life." 9. Dreher v. Town of Fitchburg, 22 Wis. 675. There was no error in refusing to define contributory negligence as "negligence in the slightest degree," but instructing the jury that "any want of ordinary care, even in a slight degree," on plaintiff's part, "which directly contributed to the injury," would prevent a recovery. 10. The evidence tended to show that plaintiff's injury was a compound com. minuted fracture of the leg-a very bad fracture;" that erysipelas ensued, and plaintiff was "in imminent danger of death" for about a week; that he incurred large expenses for medical care and nursing, and suffered much pain during four or five months; that he was almost wholly disqualified for labor during a considerably longer time, and that one leg was permanently shortened. The jury having assessed the damages at $1,550, this court refuses to reverse the judgment for excessive damages. Opinion by ORTON J.-Neanow v. Danforth.

SUPREME COURT OF INDIANA.

November Term, 1878.

PLEADING-COPY OF INSTRUMENT-SURETY ON GUARDIAN'S BOND.-1. If there is any variance between the copy of an instrument in suit, and the attempted description therof in the complaint, the copy controls and will be presumed to be right until the contrary is shown. 2. The estate of a deceased surety on a guardian's bond is liable for a default which occurs subsequent to the surety's death. Opinion by Howk, C. J.-Cotton v. State.

PROMISSORY NOTE-REMOVAL OF CONDITION.The general rule is that the removal or detachment of a material condition annexed to, or forming a part of a negotiable note, without the knowledge or consent of the maker, will ordinarily be sufficient defense to such note, even in the hands of an innocent holder; and especially when such removal or detachment is made under circumstances which put the purchaser of the note fairly upon his inquiry as to the altered con dition of the note. But when the note and condition are negligently so executed by the maker that the condition may easily be removed, without in any manner mutilating or defacing the note, and the note is thus put in circulation in that form, without objection from the maker, the maker can not be heard to deny his li ability to pay the note in the hands of an innocent holder, notwithstanding the condition may have been detached from it before such innocent bolder became the owner of it. 58 Ind. 425; Woolen v. Ulrick, at the present term. Opinion by NIBLACK, J.-Noll v. Smith.

STREET IMPROVEMENT-SUFFICIENCY OF NOTICE. This was an action by Case against Fowler, to recover an assessment in favor of the former, as contractor, against the latter, who owned a lot in the town of Fowler, for the cost of a street improvement. The notice given by the clerk of the board of trustees of said town provided that said board would receive bids for the proposed improvement "up to 12 o'clock, noon, of Saturday, September 19, A. D. 1875." The 19th of September was Sunday. The bids were opened on Saturday evening, the 18th, and the work let to plaintiff as the lowest and best bidder. Held, the mistake in the notice as to time could not mislead any one, and did not vitiate the notice, and the trustees were justified in opening and examining the bids on Saturday evening, the 18 h, and awarding the contract. Held, also, that the statute not providing for notice for any specific length of time, a notice of eight days was sufficient. Judgment reversed. Opinion by WORDEN, J. Case v. Fowler.

BOOK NOTICES.

A TREATISE ON THE LAW OF EMINENT DOMAIN. By HENRY E. MILLS. St. Louis: F. H. Thomas & Co. 1879.

Now that we have a comprehensive treatise on the law of Eminent Domain, we must express surprise that this important subject should never before have been separately considered, and, in its parts, placed before the profession. As stated by Mr. Mills: "The history of the exercise of the power of Eminent Domain in the United States, is the history of the material development of the country. The great bulk of the cases have appeared within the last forty years." The rapid and continuous construction of railroads, demanding in every instance the aid of this sovereign right, makes the subject of prime importance to the lawyer; and that must be a scant docket in any court of general jurisdiction which does not contain cases of condemnation for right of way.

The necessity for a thorough work on this subject is very manifest. Mr. Mills cites some thirty-two hun. dred cases, and has given us a book, compact in size and concise in statements. There are in it many good definitions and distinctions clearly stated, which, in this day of prolix and involved passages, are a great relief to the reader who wants the largest amount of law in the smallest number of words. Take, as an illustration, the author's distinction between the power of Eminent Domain, and that of Taxation: "Taxation exacts property from individuals as their respective shares of contribution to a public burden; private property, taken by the power of Eminent Domain, is not taken as the owner's share of such a contribution, but as so much beyond it."

Those cases of overruling necessity which justify the State in taking private property are defined as "exigencies which no law has anticipated, and which can not await the action of the legislature." The nature of the damages for which compensation must be made is stated to be "an actual diminution in present value or price of property, caused by the construction of a public improvement, or a physical injury to the property that renders it less valuable in the market, if offered for sale or rent." The subject of consequential damages has been treated with great care, and the doctrine in Thurston v. Hancock, 12 Mass. 220, sharply, and we think justly, criticised. Says the author: "It is beyond the power of the legislature to authorize the infliction of an injury without compensation; *

the fact that compensation is not provided should not

lead the court to suppose that all injuries not provided for, were declared by the legislature to be consequential, and, therefore, not subject to compensation."

The very difficult question of the right of one corporation to condemn the property of another corporation for a similar use, has been well considered. This question has given the courts great trouble, and is yet far from being satisfactorily settled. Perhaps Mr. Mills has taken the true middle-ground in following the New York case-Matter of the City of Buffalo, 68 N. Y. 167— where it is held "if both uses may not stand together, with some tolerable interference, which may be compensated for by damages paid; if the latter use, when exercised must supersede the former," then the right of Eminent Domain may not be exercised. Just what kind of interference will be "tolerable," and hence permitted, will, we apprehend, be a nice question, and can be determined only by the circumstances peculiar to each case.

Without going into further detail as to the matter contained in Mr. Mills' book, we may express an opinion on its merits, resulting from candid examination. In the present day there are so many law books, like the auctioneer's razor, "made to sell," that when we find an author whose literary and legal labor has been conscientiously done, it is a duty and a pleasure to proclaim the fact, and to welcome his work as something useful. We are glad to commend this book on Eminent Domain as a well arranged, well written, and complete treatise. J. P. E.

QUERIES AND ANSWERS.

[The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

*** The following queries received during the past week are respectfully submitted to our subscribers for solution, by request of the senders. It is particularly desired that any of our readers who have had similar cases, or have investigated the principles on which they depend, will take the trouble to forward an answer to as many of them as they are able.

QUERIES.

31. VOLUNTARY CONVEYANCE- DISTRIBUTION OF PROCEEDS. Every - A State statute provides: gift, conveyance, assignment, transfer, or charge, made by a debtor, of or upon any of his estate, without valuable consideration therefor, shall be void as to all his then existing liabilities, but shall not on that account alone be void as to creditors whose debts or demands are thereafter contracted, nor as to purchasers with notice of the voluntary alienation or charge; and though it be adjudged to be void as to a prior creditor, it shall not therefor be deemed to be void as to such subsequent creditors or purchasers." In a proceeding in equity in the United States District Court by the assignee in bankruptcy to set aside an alleged voluntary conveyance under said section, do all the creditors share pro rata in the distribution of the proceeds, in the event of a recovery by the assignee; or only those whose debts were in existence at B. the time the conveyance was made? Covington, Ky.

32. A NOTE IS GIVEN IN ONE STATE, then debtor moves to another State. Suit is brought against him

in his last State of abode. He pleads the statute of limitation in bar. Suit then brought in the State where note was given, and the debtor's property attached. Query. If debtor pleads previous judgment, rendered in his State of residence, as a bar to last suit, will plea be a good and valid plea; or, in other words, is a judgment founded on statute of limitation of one State a bar to same action in other States where said action is not barred? D. Y. B., JR.

Covington, Ky.

date. It is in no sense a bill of exchange; to allow days of grace might be laches on the part of the holder. There is no assignment of funds in bank or authority given to bank to pay, except on day of date. I can not see how the law mentioned could affect it. W. A. S. Lancaster, Ohio.

33. WILL OR WILL NOT A LANDLORD's distress for rent laid upon stock of goods after sheriff has taken possession of same in due form by virtue of executions, be held a lien, which must be satisfied before the S. executions can be?

ANSWERS.
No. 10.

[8 Cent. L. J. 240.]

According to the English authorities, bills of exchange, promissory notes, bank checks and other choses in action are not subject of gifts causa mortis. Chitty on Bills, 10th Am. ed. p. 74, and cases cited. Also late decision of the Supreme Court of Ohio, Cent. L. J. 278, held that until check was paid or accepted the gift was incomplete, and death of donor acted as a revocation of the check. But contra, see 2 Kent's Com. p. 567; U. S. C. C. in Chaney v. Baskit, Rep. Vol. 6, p. 769, holding that choses in action, whether negotiable or not, may be the subjects of A. Y. gifts causa mortis.

De Soto, Mo.

No. 23.

[8 Cent. L. J. 388.]

1. It is a well settled rule of construction that when two statutes are irreconcilably repugnant, the prior must yield to the subsequent. Sedgwick on Construction of Statutes, (2d ed.) p. 104. If, therefore, the act of 1874 is inconsistent with the act of 1870, it is repealed by the act of 1875, and this repeal is by the express repealing act. 2. In construing the act of 1870, all of said act that was repealed by the act of 1874 must be held to be revived by the repealing section of 1875. The general rule, independent of any statutory change in it, is that the repeal of a repealing statute, ipso facto revives the original statute. Sedgwick on Construction of Statutes (2d ed. Pomeroy's Notes), p. 108, note u, and p. 116; 1 Bl. Com. (Sharswood's ed.), p. 90, note 35; 1 Kent's Com. (7th ed.), p. 516. Statutes in pari materia are to be taken together as if they were one law. Sedgwick on Construction of Statutes, p. 210. But if the latter part of a statute is repugnant to a former part, the latter part shall stand, and shall work a repeal of the former to the extent of that repugnancy. Ib. p. 107. Hence, all statutes, in pari materia, enacted between the acts of 1870 and 1875, and which are inconsistent with the act of 1870, must be held to be repealed by the act of 1875. Flemingsburg, Ky.

W. A. S.

A post dated check is payable on the day of its date; but if that date be Sunday, it is payable on the next following day, Monday. Salter v. Burt, 20 Wend. 205. It is not entitled to days of grace, neither can it be presented for payment and payment demanded before its

NOTES.

JUDGE TREAT has reached England and has already made the acquaintance of at least one member of the English bench, as appears from the following clipping from the Solicitor's Journal of last week: "An ancient saw, relating to the results of referring to a personage supposed at the time to be distant, was illustrated at the Rolls on Tuesday last. The learned Master of the Rolls, in the course of a case relating to infringement of a design, had just been remarking that no decision of the English courts was reported on the point before him, while there appeared to be numerous decisions of the American judges directly bearing upon it. Hereupon a gentleman came into court, sent up his card, and was requested to take a seat on the bench. After shaking hands with the visitor, the Master of the Rolls announced that he was Mr. Justice Treat, an American judge, and at once proceeded to avail himself of the legal knowledge of the assessor so opportunely and unexpectedly provided."

A physician in a very large practice has recently, in Phillips v. The London & Southwestern Railway Co., recovered £7,000 from a railway company in an action for negligence. The direction of Mr. Justice Field, based on that of Parke, B., in Armsworth v. The Southeastern Railway Co., 11 Jur. 759, that the jury were to take a reasonable view of the case, and not to consider the value of existence as if they were bargaining with an annuity office, seems to be perfectly correct, though it is well to point out that Lord Justice Brett, who quotes the ruling of Baron Parke with approval in the later case of Rowley v. The London & Northwestern Railway Co., 29 L. T. Rep. (N. S.) 180, was the judge who dissented from the majority in that case. The majority held that in an action under Lord Campbell's act to recover damages for the benefit of a relative to whom the deceased had covenanted to pay an annuity during their joint lives, the jury might be directed to estimate the damages to the aunuitant by calculating what sum could buy him an equally good annuity. That case is, however, very different from the case of a physician, inasmuch as the annuity was a certain payment for life, and not subject to decrease from any gradual failure in health in the recipient. How much ought to be deducted for such latter cause is very difficult to say, but it seems rather hard that a jury should be left to roam at large without any more specific direction than to give "reasonable compensation." In Dr. Phillips' case, the plaintiff was proved to have been in receipt of an average income of £6,500 a year, and to have been permanently disabled from pursuing his practice. To estimate the professional earnings at one year's purchase only seems to be putting things rather low; but we know of no instance in which damages in such an action have been increased upon an appeal to the court. That they should be reduced is, of course, a matter of every day experience; the most memorable instance perhaps being that of Pym v. Great Northern Railway Co., 32 L. J. 377, Q. B., in which the jury gave £13,000 and the court reduced the amount to £9,000. A rule for a new trial on the ground of insufficient damages has, however, been granted.-Law Times.

SAINT LOUIS, JUNE 20, 1879.

CURRENT TOPICS.

In Rumford Chemical Works v. Finnie, decided by the United States Circuit Court for the Western District of Tennessee, on the 13th ult., it was held that affidavits of jurors are not admissible to show that the mode of computation adopted by the jury in arriving at their verdict was contrary to the law and the evidence.

HAMMOND, J., said: "The defendants offer to prove by the affidavits the mode of calculation adopted by them [the jurors] to reach the verdict (the jury having preserved their figures) in order to show as a ground for a new trial that it was contrary to the evidence, and not authorized by the charge of the court. The Supreme Court of the United States, in United States v. Reid, 12 How. 361, 366, declined to lay down any rule on the subject, and I do not find that they have since considered it. It is certainly contrary to the English cases, to admit these affidavits, and it is said that Tennessee is the only State where they are admitted. Public policy forbids the introduction of jurors' affidavits to prove anything which may have transpired in the jury-room whilst consulting upon their verdict. To allow verdicts to be overthrown by the evidence of jurors would open a door for tampering with the jury, and might lead to consequences, in their operation on judicial proceedings, of a very mischievous and pernicious character. To guard against such consequences, it is better the door should be at once closed against the introduction of jurors as witnesses to overturn their verdict. By the ancient law and practice the affidavits of jurors might be received to impeach their verdict, but previous to our Revolution, at least as early as 1770, the doctrine in England was distinctly ruled the other way, and has so stood ever since. It is admitted, notwithstanding a few adjudications to the contrary, that it is now well settled, both in England and, with the exception of Tennessee, perhaps in every State of this confederacy, that such affidavits cannot be received, and, we believe, upon correct reasoning. If it were otherwise, Vol. 8-No. 25.

the widest door for endless litigation, fraud, and perjury, and is condemned by the clearest principles of justice and public policy.' Graham & Waterman on New Trials, 1429, 1430. It is probable that this court is not bound by the Tennessee practice on this subject, but I do not place the judgment on that ground. R. R. Co. v. Horst, 93 U. S. 291. I think the Tennessee cases all taken together go only to the extent of admitting affidavits of the jurors to show misconduct, such as casting lots or playing cards for their verdict; and not to the extent of attacking the judgment of the jury by showing it to be defective in the intellectual process employed in reaching the verdict. Caruther's History of a Law Suit, § 384; Crawford v. State, 2 Yerg. 60;

Boobyv. State, 4 Ib. 111; Hudson v. State, 9 Ib. 407; Elledge v. Todd, 1 Humph. 43; Bennett v. Baker, Ib. 399; Johnson v. Berry, 2 Ib. 570; Harvey v. Jones, 3 Ib. 157; Norris v. State, Ib. 333; Saunders v. Fuller, 4 Ib. 518; Fletcher v. State, 6 Ib. 256; Cochran v. State, 7 Ib 545; Nelson v. State, 10 Ib. 518; Luster v. State, 11 Ib. 170; Lewis v. Moses, 6 Cold. 197; Galvin v. State, Ib. 283; R. R. Co. v. Pillow, 9 Heisk. 253; Wade v. Ordway, 1 Baxt. 229;. Junnaway v. State, 3 Ib. 206; See, also, Hall v. Robinson, 25 Iowa, 91; Henley v. Luce, 31 Me. 246; Little v. Larrabee, 2 Ib. 37 and note; Jackson v. Dickson, 15 Johns, 309; Ex parte

Coykendall, 6 Cow. 53."

IN Daly v. Maitland,7 W.IN. 183 recently decided by the Supreme Court of Pennsylvania the question was as to the effect of a stipulation for attorneys' fees contained in a mortgage. The mortgage which was for the sum of $14,000, stipulated that when due judgment might be entered for the amount, "together with an attorneys' fee for collection, viz.: five per cent, besides costs of suit without any stay, any law or usage to the contrary notwithstanding." The court below instructed the jury that the amount fixed was in the nature of liquidated damages, and judgment was rendered for the full amount of the mortgage debt with interest, and five per cent. commission for collection, On appeal to the Supreme Court this ruling was reversed, the court holding that the amount fixed

was more in the nature of a penalty than of liquidated damages and might be reduced at the discretion of the court. "It is undoubtedly true," said SHARWOOD, C. J., "that the parties to a contract may lawfully agree that the damages in case of a breach shall be liqui dated at a certain amount. Equity will not relieve against such a contract fairly entered into, unless it is evidently a penalty. This principle of liquidated damages is not applicable, however, to a contract for the loan of money; at least such stipulation is subject to the control of courts of equity. As in the day of Solomon, 6 the borrower is servant to the lender;' and courts of equity from the earliest period have assumed the jurisdiction of relieving the borrower from unreasonable and oppressive stipulations exacted from his necessities, altogether apart from the statutes against usury. Especially has this always been the case as to mortgages. Agreements embarrassing or restraining the equity of redemption have invariably been set aside. The stipulated commission for the attorney may be so far beyond the ordinary rate charged for such services as to require imperatively the interposition of the equitable powers of the court.

* It is important, unless we are prepared to say that the lender may stipulate for any amount as commissions for the collection of his debt, that there should be some more certain rule than could be reached by submitting every case to a jury.

It

would practically, in a great number of cases, have the effect of destroying the stipulation altogether. If the question must in every case be referred to a jury, the creditor will abandon the claim sooner than encounter the delay, and the risk of a very small sum being allowed. The court, from practical knowledge of professional work, are able to say in every particular case, what ought to be the compensation or rate of commission for collecting a debt by suit. Whatever is stipulated beyond a reasonable rate, should be relieved against upon equitable principles; certainly no certain commission can be determined upon to be applied to all cases. As responsibility, as well as labor and skill, is involved, in reason and the usage of the profession it depends upon the amount collected, but not absolutely so. If there should be no defense to the mortgage or other instrument of writing for the payment of

money, the court, in giving judgment, can decide whether the stipulated rate is too large, and enter judgment for what is right. Should, however, a defense be set up in whole or in part, and the case necessarily go to a jury, it would be the province of the court to instruct the jury what, under all circumstances, should be allowed, of course not exceeding the agreed rate. We think the learned judge below was right in refusing to leave it to the jury to determine the rate of commission; but he was wrong in instructing them to find the full amount agreed upon. Five per cent. upon $14,000-in other words $700-was far beyond what was reasonable, even in view of the fact that the defendant below had interposed a defense against the commission, and that the case inight be carried by writ of error to this court. We think, even under these circumstances, two per cent. would have been an ample and liberal allowance, and the jury should have been so instructed." WOODWARD, J., while concurring in the decision of the principal question, thought that the amount of the penalty should be left to the jury. "So long," said he, "as contracts stipulating for the payment by debtors of the expenses of litigation incurred by their creditors shall be held to be within the policy of the law, the rule that has prevailed hitherto ought to be maintained. The rule has been to treat the amount of col

lecting fees agreed upon as stipulated damages, and not as a penalty. The agreement of parties should be carried out, except where, in affidavits of defense, or in trials of causes, circumstances of oppression or injustice should be indicated In every such instance, the question as to the amount of the allowance should be settled by a jury. Scarcely any case could arise in which some element of fact outside the instrument in suit would not enter. And an inquiry into doubtful and complicated facts would be frequently indispensable. The judges of the courts ought not to be required to assume a duty of this sort. Acquiescing in the action of the majority of the court in reversing the judgment, I would refer the question in controversy to the determination of a jury."