in by the deceased as well as by the complainant. It goes to show that the contract was not considered by either party as abandoned, but that there was a constant and continued affirmance" that the holding was under the agreement, and now when the complainant cannot be made whole in any other way, it is his right to ask that the agreement should be performed by the party whose delay and death has compelled him to seek the intervention of a court of equity.

Nor do we think the statute of limitations should apply in this case for the reasons before stated. The language of Mr. Justice Barrows, in Lawrence v. Rokes, 61 Me. 43, may not be inappropriate in this connection, that " where it appears beyond question or dispute that lapse of time has not in fact changed the condition and position of the parties in any important particular, and there are any peculiar circumstances entitled to consideration as excusing the delay, they (the court) will not refuse the appropriate relief, although a strict and unqualified application of limitation rules might seem to require it. *** He does not plead the statute of limitations, and although under rule 6 he may have the benefit of a plea in bar by inserting its substance in his answer, in the absence of any intimation in the answer that he claims exemption on the score of lapse of time, the court will not interfere to set up the bar, but will consider the respondent as waiving it, even though the facts alleged were such as to make it appear that it might be successfully interposed."

Neither will courts of equity allow such a bar to prevail to suits in equity, where it would be in the furtherance of a manifest injustice." Story Eq. Jur., § 1521.

Under all the circumstances and upon the case as set forth in the bill, we are of the opinion that the complainant is entitled to the specific performance for which he prays, and in accordance with the stipulation of the parties, the entry should be: Demurrer overruled. Bill sustained, with no costs for complainant. Decree for specific performance as prayed for in said bill.

Peters, C. J., Danforth, Virgin, Emery and Haskell, JJ., concurred.

[See 37 Am. Rep. 847; 3 id. 657; 22 Eng. Rep. 764.ED.]

UNITED STATES SUPREME COURT ABSTRACT.

NEGOTIABLE INSTRUMENT COMPROMISE NEW

NOTE CONSIDERATION-SURRENDER.--Amarket-house company, incorporated for twenty years, with power to purchase, hold and convey any real or personal estate necessary to enable it to carry on its business, built a market-house on land owned by it in fee-simple, and sold by public auction leases for ninety nine years, renewable forever, of stalls therein at a specified rent. The highest bidder for one of the stalls gave the corporation several promissory notes in part payment for the option of that stall, received such a lease, and took and kept possession of the stall, and afterward gave it a note for a less sum in compromise of the original notes, and upon express agreement that if this note should not be paid at maturity the corporation might surrender it to the maker, and thereupon the cause of action on those notes should revive. Held, that the new note was upon a sufficient legal consideration, and that the corporation, holding and suing upon all the notes, could recover upon this note only. The plaintiff insists that the original notes were valid, because a corporation, empowered to hold and convey the real estate for the objects of its incorporation, may convey an estate in fee or any less estate in lands which it has

purchased, and may therefore make a valid lease of them for any term af years, though extending beyond the limit of its corporate existence. But is is unnecessary to express a definitive opinion upon that point, because it is agreed in the case stated that the defendant gave, in compromise of the original twenty notes for $171.05 each, the new note for $1,881.60. If the plaintiff had exceeded its corporate powers in making the original contract, yet it had authority to compromise and settle all claims by or against it under that contract. Morville v. American Tract Soc., 123 Mass. 129. The compromise of the disputed claim on the original notes was a legal and sufficient consideration for the new note. Cook v. Wright, 1 Best & S. 559; Tuttle v. Tuttle, 12 Metc. 551; Riggs v. Hawley, 116 Mass. 596. By the terms of the agreement of compromise the plaintiff's cause of action on the original notes was not to revive, in case of the new note not being paid at maturity, except upon the surrender of this note to the defendant. The plaintiff not having surrendered it, but holding and suing upon it as well as upon the original notes, has not performed the condi tion on which the revival of the right of action on the original notes depended. It follows that the plaintiff cannot recover in this action on the original notes for $171.05 each, but is entitled to recover on the new note for $1,881.60. Northern Liberty Market Co. v. Kelly. Opinion by Gray, J.

[Decided Jan. 19, 1885.]

UNITED STATES GOVERNMENT PROPERTY-UNAUTHORIZED SALE.-A party to whom has been delivered without sanction of law material of old ships, property of the United States, to which he had no title whatever, by contract or otherwise, is accountable to the government for its full value, notwithstanding that his account has been settled by the officers of the navy department at a sum less than its full value. Both the disposition of the property and the settlement of the account were without authority of law, and not binding on the government. Nor can laches in not objecting to the settlement of the appellant's account at an earlier time be imputed to the United States, and set up as a bar to the recovery of the value of the property unlawfully appropriated. This is a case for the application of the rule nullum tempus occurrit regi. Lindsey v. Miller, 6 Pet. 669; Gibson v. Christian, 13 Wall. 92. Steele v. United States. Opinion by Woods, J. [Decided Jan. 19, 1885.]

ATTORNEY-COMPENSATION-TRUST FUND-INSOLVENT RAILROAD CORPORATION.-Certain unsecured creditors of a railroad company in Alabama instituted proceedings in equity in a court of that State, on behalf of themselves and of all other creditors of the same class who should come in and contribute to the expenses of the suit, to establish a lien upon the property of that company in the hands of other railroad corporations which had purchased and had possession of it. The suit was successful, and the court allowed all unsecured creditors to prove their claims before a register. Pending the reference before the register the defendant corporations bought up the claims of complainants and other unsecured creditors. Thereupon the solicitors of complainants filed their petition in the cause to be allowed reasonable compensation in respect of the demands of unsecured creditors (other than their immediate clients) who filed their claims under the decree, and to have a lien declared therefor on the property reclaimed for the benefit of such creditors. The suit between the solicitors and such defendant corporations was removed to the Circuit Court of the United States. Held, (1) Within the principle announced in Trustees v. Greenough, 105 U. S. 527, the claim was a proper one to be allowed; (2) it was also proper to give the solicitors a lien upon the property

brought under the control of the court by the suit and the decree therein, such lien being authorized by the law of Alabama. See also Montgomery, etc., R. Co. v. Branch, 59 Ala. 139; Matter of Lehman, id. 632; Warfield v. Campbell, 38 id. 527. Central Railroad & Banking Co. of Georgia v. Pettus. Opinion by Harlan, J.

[Decided Jan. 5, 1885.]

MANDAMUS ADEQUATE REMEDY — JUDGMENT OF CIRCUIT COURT.-A writ of mandamus is not ordinarily granted when the party aggrieved has another adequate remedy. No formal allowance by the Circuit Court of a writ of error from this court to review a judgment of that court is required. Davidson v. Lannier, 4 Wall. 453. The writ issues in a proper case as a matter of right, but when sued out security must be given, and a citation to the adverse party signed. This security may be taken, and the citation signed by a judge of the Circuit Court, or any justice of this court. No action of the Circuit Court as a court is required. It does not appear from the petition that any application has been made to either of the judges of the Circuit Court to approve security or to sign a citation. If they should refuse an application hereafter, resort may be had to either of the justices of this court. It will be time enough to apply for a mandamus when all these remedies have failed. Motion denied. Matter of Com'rs, etc., of Virginia. Opinion by Waite, C. J.

[Decided Nov. 10, 1884.]

ADMINISTRATION OF ESTATE-CONCEALMENT, FRAUD, ETC.-SURVIVING PARTNER-TRUSTEE-PURCHASERNOTICE. (1) A settlement of an administrator's account by the decree of a Probate Court does not conclude as to property accidentally or fraudulently withheld from the account. If property be omitted by mistake, or be subsequently discovered, a court of equity may take the proper action to do justice to the heirs or creditors of the estate as to such property, even though the Probate Court might in such case reopen its decree and administer upon the omitted property. (2) A fraudulent concealment or a fraudulent disposition of property is always a ground for the interposition of equity. (3) The administrator of a deceased member of a partnership, who taking advantage of the consent of an ignorant and weak-minded surviving partner, assumes control of the entire partnership property, is bound to the utmost good faith in his dealings with the property, and should be held in its disposition to the responsibilities of a trustee of such surviving partner. (4) A surviving partner, whose property is sold by the fraudulent act of a deceased partner's administrator, may, instead of seeking to annul the sale, compel the administrator to account to him for the amount received for the property. (5) A purchaser, who colluded with an administrator in the fraud by which a sale of partnership property was consummated, takes the property with notice of the rights of the intestate's partner, and of the relation of trustee which the administrator bore to such partner. Griffith v. Godey. Opinion by Field, J. [Decided Jan. 25, 1885.]

CONSTITUTIONAL LAW-EMINENT DOMAIN-PUBLIC USE-MUNICIPAL BONDS TO AID PRIVATE CORPORATION. The general grant of legislative power in the Constitution of a State does not enable the Legislature in the exercise either of the right of eminent domain or of the right of taxation to take private property without the owner's consent for any but a public object. Nor can the Legislature authorize counties, cities or towns to contract, for private objects, debts which must be paid by taxes. It cannot therefore authorize them to issue bonds to assist merchants or

manufacturers, whether natural persons or corporations, in their private business. These limits of the legislative power are now too firmly established by judicial decisions to require extended argument upon the subject. In Loan Association v. Topeka, 20 Wall 655, bonds of a city, issued, as appeared on their face, pursuant to an act of the Legislature of Kansas, to a manufacturing corporation, to aid it in establishing shops in the city for the manufacture of iron bridges, were held by this court to be void, even in the hands of a purchaser in good faith and for value. A like decision was made in Parkersburg v. Brown, 106 U. S. 487. The decisions in the courts of the States are to the same effect. Allen v. Jay, 60 Me. 124; Lowell v. Boston, 111 Mass. 454; Weismer v. Douglass, 64 N. Y. 91; In re Eureka Co., 96 id. 42; Bissell v. Kankakee, 64 Ill. 249; English v. People, 96 id. 566; Central Branch Union Pac. R. Co. v. Smith, 23 Kan. 745. We have been referred to nofopposing decision. The cases of Hackett v. Ottawa, 99 U. S. 86, and Ottawa v. National Bank, 105 id. 342, were decided as the chief justice pointed out in Ottowa v. Carey, 108 U. S. 110, 118, upon the ground that the bonds in suit appeared on their face to have been issued for municipal purposes, and were therefore valid in the hands of bona fide holders. In Livingston v. Darlington, 101 U. S. 407, the town subscription was toward the establishment of a State reform school, which was undoubtedly a public purpose, and the question in controversy was whether it was a corporate purpose within the meaning of the Constitution of Illinois. In Burlington v. Beasley, 94 U. S. 310, the grist-mill, held to be a work ot internal improvement, to aid in constructing which a town might issue bonds under the statutes of Kansas, was a public mill which ground for toll for all customers. See Osborne v. Adams Co., 106 U. S. 181, and 109 id. 1; Blair v. Cuming Co., 111 id. 363. Subscriptions and bonds of towns and cities under legislative authority, to aid in establishing railroads, have been sustained on the same ground on which the delegation to railroad corporations of the sovereign right of eminent domain has been justified-the accommodation of public travel. Rogers v. Burlington, 3 Wall. 654; Queensbury v. Culver, 19 id. 83; Loan Association v. Topeka, 20 id. 661, 662; Taylor v. Ypsilanti, 105 U. S. 60. Statutes authorizing towns and cities to pay bounties to soldiers have been upheld, because the raising of soldiers is a public duty. Middleton v. Township of Mullica, 112 U. S. 433; Taylor v. Thompson, 42 IIL 9; Hilbish v. Catherman, 64 Penn. St. 154; State v. Richland Tp., 20 Ohio St. 362; Agawam v. Hampden, 130 Mass. 528, 534. The express provisions of the Constitution of Missouri tend to the same conclusion. It begins with a declaration of rights, the sixteenth article of which declares that "no private property ought to be taken or applied to public use without just compensation." This clearly presupposes that private property cannot be taken for private use. St. Louis Co. Ct. v. Griswold, 58 Mo. 175, 193; 2 Kent Comm. 339 note, 340. Otherwise as it makes no provision for compensation except when the use is public, it would permit private property to be taken or appropriated for private use without any compensation whatever. It is true that this article regards the right of eminent domain, and not the power to tax; for the taking of property by taxation requires no other compensation than the tax payer receives in being protected by the government to the support of which he contributes. But so far as respects the use, the taking of private property by taxation is subject to the same limit as the taking by the right of eminent domain. Each is a taking by the State for the public use, and not to promote private ends. Cole v. City of La Grange. Opinion by Gray, J.

[Decided Jan. 5, 1885.]

question, Hammond, J., said: "It may be a test of the soundness of the judgment here rendered to consider whether, under its operation, it would be competent for this consolidated corporation to ignore its Kentucky existence, and describing itself as a corporation under the laws of Louisiana, sue a citizen of Kentucky in this court (sitting in Kentucky), or whether a citizen of Kentucky, ignoring the Kentucky statutes, might sue it in this court as a Louisiana corporation 'found' within this district; and if either be admissible, why the same right to choose the capacity in which it shall conduct the litigation does not exist in favor of the right of removal when sued in the State courts." In other cases besides the Nashua & L. Corp. v. Boston & L. Corp., already cited, it has been held that a corporation organized and consolidated under the laws of two States, describing itself as a corporation of any one of them, and ignoring the statutes of the other, may sue a citizen of the latter in the Federal court there sitting. St. Louis, A. & T. H. R. Co. v. Indianapolis & St. L. R. Co., 9 Biss. 144; Chicago & N. W. R. Co. v. Chicago & P. R. Co., 6 id. 219. See also Railway Co. v. Whitton, 13 Wall. 271, 283, followed and re-affirmed in Muller v. Dows, 93 U. S. 444, 448. While at common law a corporation may not migrate, but must dwell in the place of its creation, and cannot be sued elsewhere, yet under the laws of Congress and of the States it may exercise its authority in a foreign territory upon such conditions as may be prescribed by the law of the place. "One of these conditions may be that it shall consent to be sued there. If it do business there it will be presumed to have assented, and will be bound accordingly. For the purposes of Federal jurisdiction it is regarded as it it were a citizen of the State where it was created, and no averment or proof as to the citizenship of its members elsewhere will be permitted." Railroad Co v. Harris, 12 Wall. 65. In the case last cited it is also said: "We see no reason why several States cannot, by competent legislation, unite in creating the same corporation, or in combining several pre-existing corporations into a single one. The jurisdictional effect of the existence of such a corporation, as regards the Federal courts, is the same as that of a co-partnership of individual citizens residing in different States.' See also St. Clair v. Cox, 106 U. S. 350; Ex parte Shollenberger, 96 id. 369; Railroad Co. v. Koontz, 104 id. 5; Life Ins. Co. v. Woodworth, 111 id. 138; Railroad Co. v. Railroad Co., 10 Fed. Rep. 497; Callahan v. Railroad Co., 11 id. 536. In Railroad Co. v. Wheeler, 1 Black, 297, the Supreme Court at an earlier date, speaking of a consolidated company, had said: "The president and directors of the Ohio & Mississippi Railroad Company is therefore a distinct and separate corporate body in Indiana from the corporate body of the same name in Ohio, and they cannot be joined in a suit as one and the same plaintiff, nor maintain a suit in that character against a citizen of Ohio or Indiana in a Circuit Court of the United States." The statutes of In. diana provide for suits against foreign corporations doing business in the State, and for service of process upon agents found in charge of such business. Rev. Stat. 1881, $$ 3022, 3030. But in respect to consolidated bodies, having a chartered existence both in this and in a foreign State or States, it seems quite doubtful whether these statutes, which in terms embrace only “corporations not incorporated or organized in this State," can be considered applicable. The conclusion which I have reached is in some measure fortified perhaps by the consideration that if judgment could be given in this action against the defendant as a Michigan corporation, it would be binding upon the company in this State as well as in Michigan, and might be enforced by execution issued directly against the property of the company here. The property of

one company is the property of the other. According to the decision in Horne v. Boston & M. R. R., 18 Fed. Rep. 50, the fact that the injury complained of was suffered in Michigan is not material to the question of jurisdiction. Cir. Ct., D. Indiana, 1884. Burger v. Grand Rapids, etc., R. Co. Opinion by Woods, J. (22 Fed. Rep. 561.)

PENNSYLVANIA SUPREME COURT

ABSTRACT.

DAMAGES-LIQUIDATED OR PENALTY-PROFITS.-A. agreed to place in B.'s mill, within a stipulated time, certain machines to make flour, which should have a capacity not below 200 barrels of high grades of flour daily, and further agreed that it should be no experiment, and in proof thereof that in case the results were not as promised the machines should be retained without any price being paid. The machines when furnished were found not to make a high grade of flour, and not to be capable of producing the stipulated number of barrels per day. In an action by B. against A. to recover damages. Streeper v. Williams, 12 Wr. 454; Shreve v. Brereton, 1 P. F. S. 185. In Mathews v. Sharp, 3 Out. 564, Mr. Justice Trunkey said, referring to Streeper v. Williams, supra: "In an elaborate opinion it was ruled that to determine whether the sum named as a forfeiture for non-compliance is intended as a penalty or as liquidated damages, it is necessary to look at the whole contract, its subject-matter, the ease or difficulty in measuring the breach in damages and the magnitude of the stipu. lated sum, not only as compared with the value of the subject of the contract, but in proportion to the probable consequences of the breach." There are numerous authorities on this subject, but probably their best expression is found in the foregoing citations. Held, that the clause in the agreement that the machines might be retained was not a liquidation of damages, but in the nature of a penalty. Held further, that the measure of damages was the amount paid upon the machines, the loss by defects in the machinery, and the cost incurred in repairing the mill and putting it into condition to produce 200 barrels daily of a high grade of flour, less the value of that portion of the defendant's machines retained and used in the repairing and refitting of the mill. The loss of possible profits, which might have been made if the mill had run properly, was not a proper subject of damages, the plaintiff being measurably in fault, and further because such damages were too remote and speculative. Hoy v. Gronoble, 10 Cas. 11; Adams Express Co. v. Egbert, 12 id. 364. Pennypacker v. Jones. Opinion by Green, J.

[Decided Oct. 6, 1884.]

RECORDING ACT-LEAVING WITH RECORDER-INDEX NO PART OF RECORD.-Prior to the act of March 18, 1875, at least it was well settled that a deed was in contemplation of law recorded, when it was left in the recorder's office, and put upon the entry book for that purpose. The duty of the recorder was to record it, and the responsibility rested upon him for any default in the proper discharge of that duty; the consequences of his default could not be visited upon the owner, who had done all that the law required in depositing the deed in the office for that purpose. A different doctrine was perhaps declared in Luch's Appeal, 8 Wright, 519, where it was held that mortgages must be recorded in a "mortgage book," and that they are not properly recorded in any other book, where they cannot be found by means of a "mortgage index," but that case was expressly overruled in Glading v. Frick,

Nor. 460, where it was said by Paxson, J.: "We feel ourselves constrained to return to the rule laid

down by Chief Justice Gibson in McLanahan v. Reeside, 9 Watts, 511." "It is indeed," says the Chief Justice, "of no account that the conveyance and the articles were not recorded in the book set aside for mortgages; the keeping of such a book is an arrangement to promote the convenience of the officer, by contracting the surface over which he is to search for a particular thing; he is bound to furnish precise information, get it as he may, of every registry in his office, whether made in the right place or not." Clader v. Thomas, 8 Nor. 343, and Paige v. Wheeler, 11 id. 282, are to the same effect. The remark of Chief Justice Woodward,in Speer v. Evans, 11 Wright, 141, that the index is an indisputable part of the record, is not to be regarded as an adjudication to that extent; that case turned upon the question of actual notice. Schell v. Stein, 25 P. F. S. 398. No duty rested upon a party to supervise the action of the recouder, to see that he made the record and indexed the conveyance. Brown and Wood's Appeal, 3 Week. Notes, 35; Wyoming Bank's Appeal, 11 id. 567. Stockwell v. McHenry. Opinion by Clark, J.

[Decided Oct. 20, 1884.]

CARRIER-BAGGAGE

WHEN LIABILITY CEASES

BURDEN OF PROOF.—(1) A passenger must be allowed a reasonable time after arrival of his baggage to call for and take it away, and during such time the carrier continues responsible according to the strict rule of law relating to common carriers. When the liability as carrier ceases he holds the baggage under a modified liability. His duty to exercise care over the prop erty remaining in his hands grows out of the original contract, and he is therefore bound to exercise ordinary care in keeping and preserving it, the original contract, though modified in respect to the degree of liability assumed from a reasonable time after the arrival of the goods, being understood to contemplate a possible delay, and to cover the delivery. Edwards on Bail. 90; Hutchinson on Car. 708, 712; Burnell v. New York Cent. R. Co., 45 N. Y. 184. Where the contract is to carry goods by sea from port to port, it is the duty of the consignee to receive the goods out of the ship or at the wharf. If they are not accepted by the consignee the carrier should put them in a place of safety, and when he has so done he is no longer liable on his contract of affreightment. Richardson v. Goddard, 23 How. 28. So a passenger should call as soon as practicable for his baggage, but if he does not, the carrier is bound to care for it or send it to a fit storehouse. (2) A common carrier is regarded as an insurer of the safety of the goods against all losses except such as may be caused by the act of God or the public enemy; and exceptions may arise from the fault of the owner, or from some inherent defect in the goods, or upon an express contract that the carrier shall not be liable for loss from a specified cause. In all such cases the burden is upon the carrier to establish the fact which will bring his case within an exception to the rule. When the carrier has shown that the loss was occasioned by a cause from the liability of which he is protected by law or by contract, it will not be presumed that his negligence contributed to the loss, but the presumption will be, in the absence of proof to establish his negligence, that the carrier has done his duty; and if it has been shown that the loss resulted from such cause, without also having shown that the carrier was negligent, the burden of proving his negligence devolves upon the plaintiff. This rule seems to be supported by a decided preponderance of authority. Hutchinson on Car. 765-767. It has been established in New York and Pennsylvania, and considered as if applicable to the case of a bailee who receives goods to store for a compensation. Where a carrier, by contract, was exonerated from a loss by fire, he was

held liable only as a bailee for hire, and it was decided that the bailor could not recover upon simple proof of the destruction of the goods by fire, he must go farther and show that the loss was caused by the negligence of the bailee. Lamb v. Camden & Amboy R. & Tr. Co., 46 N. Y. 271; Farmham v. Camden & Amboy R. Co., 55 Penn. St. 53. In the latter case it was said, “that where a bailee accounts for a loss in a way not to implicate himself in a charge of negligence, this is a sufficient defense, unless the plaintiff proves negligence." Nat. Line Steamship Co. v. Smart. Opinion by Trunkey, J.

[Decided Nov. 20, 1884.]

CORRESPONDENCE.

A SURREBUTTOR.

Editor of the Albany Law Journal:

I rise to a question of privilege! I desire to know whether, in this degenerate age, the members of the legal profession have any rights which courts of justice are bound to respect.

It appears to be a modern invention to dispose of legal controversy by ignoring the merits of the case itself, and delivering an elaborate opinion upon the merits or demerits of the counsel by whom it is conducted. It is undoubtedly much easier, in a majority of cases, to dispose of the latter than the former, and therefore not especially remarkable that the practice is rapidly increasing. The average lawyer however is not so avaricious or ambitious for personal distinction as to feel specially flattered by repeated judicial announcements that he is, professionally speaking, an ass, at the uniform expense of his clients, or to crave their continuance in cases where they are no less at his personal expense, by reason of the fact that they are alike unwaranted and unjust.

I am not an advocate of the practice of reviewing adverse decisions by "swearing at the court," and do do not design in the present instance to take any new departure in that behalf, but after mature deliberation I have reached the conclusion that the time has arrived, when from a personal stand point, I should "have leave to kick for being kicked," and be permitted to enter a firm and vigorous protest against the more recent application of this modern invention in the disposition by the "court of last resort of a cause professionally conducted by myself as counsel for the unsuccessful litigant.

I refer to the case of Arnold v. Parmalee, 97 N. Y. 652, which in the matter of inaccuracy of statement, novelty of doctrine, and manifest injustice to counsel and client, may be regarded as entirely sui generis, even in this era of multitudinous and diversified adjudication. It also graphically illustrates with what wonderful facility in modern practice a case of considerable intrinsic importance, pecuniarily and otherwise, may be disposed of by a single stroke of the judicial guillotine, simultaneously beheading both counsel and client.

I rest my defense solely upon the record presented to the court, and a correct statement of the case as disclosed thereby.

Upon the pleadings the plaintiff's cause of action stood admitted. Various affirmative matters of alleged defense were interposed. Certain "questions of fact," pertaining or supposed to pertain to those defenses were settled to be submitted to a jury, and were thus tried at Circuit. The result of the answers of the jury was such as to defeat the plaintiff's right to recover. Subsequently the cause came on for hearing at the Special Term. It is true that this court was held by a justice of the Supreme Court other than the