See also Wood on Master and Servant, section 202, where it is said:

While the courts will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to the master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction."

The doctrine of these authorities, and many others which might be cited is recognized, applied and enforced in German, etc., Church v. Stegner, 21 Ohio St. 488, wherein it is held: While a promissory note given to and discounted by a corporation for a loan of money in the course of an unauthorized banking business will not be enforced, yet where the treasurer of such corporation has taken and appropriated to his private use moneys deposited with it contrary to the statute against unauthorized banking, and being unable when called on to refund the same, secures it by his promissory note, such note will not be held to have been given in the course and furtherance of an illegitimate business, and an action will lie thereon."

Judgment of District Court affirmed.

COMPUTATION OF TIME WHETHER SUNDAY INCLUDED OR EXCLUDED.

MAINE SUPREME JUDICIAL COURT AUGUST 25, 1883.

CRESSEY V. PARKS.*

When a statute gives a definite number of days for doing an act, and says nothing about Sunday, the days are consecutive, and include Sunday. And when the day on which the act is to be done falls on Sunday, the act must be done on the next day.

When chattels distrained are to be sold in a specified time, the day of seizure is excluded, and the day of sale included in the reckoning. Thus goods seized on the eighth are to be sold on the twelfth, when they are to be sold in four days after seizure.

ACTION of trespass. The opinion states the facts.

Case brought here on exceptions.

By stipulations in the exceptious, if they were not sustained, the defendant was to be defaulted, and damages were to be assessed by the clerk.

D. F. Davis and C. A. Bailey, for plaintiff. Barker, Vose & Barker and A. L. Simpson, for defendant.

APPLETON, C. J. This is an action of trespass against the defendant, a collector of taxes for the town of Glenburn, for seizing and carrying away six tons of the plaintiff's hay for the non-payment of his taxes and selling the same.

*

*

*

By Revised Statutes, ch. 6, § 104, "If any person refuses to pay the taxes assessed against him * the collector may distrain him by his goods and chattels * * and keep such distress for the space of four days at the expense of the owner, and if he does not pay his taxes within that time, the distress shall be openly sold at vendue by the officer for its payment."

The hay was seized for taxes on Saturday, January 8th, and advertised for sale on Thursday, the thirteenth, and thence the sale adjourned to Friday, the fourteenth, when the property seized was sold.

In computing time, the day of the seizure is not to be reckoned. The rule is thus stated by Bishop in his work "On the Written Laws, 107." When a statute specifies a particular number of days, weeks, or years the computation should be made by adding, for in*To appear in 75 Maine Reports.

stance, to the ascertained number of the day in the month, the statutory number. Thus an enactment passed on the fifth day of the month, to take effect in ten days, will go into operation on the fifteenth day of the month, because the sum of ten and five is fifteen. The rule of reason therefore may be stated to be, "that of the two extreme days, the one shall be included and the other excluded in the reckoning."

The term specified by the statute for sale is four days after seizure. The collector keeping the property seized beyond the time in which it could be legally sold, is thereby a trespasser ab initio. Brackett v. Vining, 49 Me. 356; Farnsworth Co. v. Rand, 65 id. 19. The statutes in Massachusetts on this subject are similar to those of this State. The time when the sale was to be made became an early subject of discussion. In Caldwell v. Eaton, 5 Mass. 399, Parsons, C. J., in considering the question says: "The notice must be given forty-eight hours before the expiration of the four days. It is then a necessary consequence that they must be sold at auction, after they have been kept four days and no longer.' In Titcomb v. Ins. Co., 8 Mass. 334, Sewall, J., says: "Shares taken ou execution are to be exposed for sale in the same manner as by law prescribed when personal estate is taken on execution. The time for this purpose, allowed aud determined by the general statute, is four days. Now when four days had expired and no sale had taken place, a new notice was necessary to legalize a subsequent sale." In Howe v. Starkworth, 17 Mass. 241, Parker, C. J., citing the last named case, says: "The sale under the execution would be bad by suffering more than four days to elapse between the seizure on execution and the sale." To the same effect is the decision in Pierce v. Benjamin, 14 Pick. 356. Such too is the recognized law in this State. "The day of seizure," remarks Shepley, C. J., in Tuttle v. Gates, 24 Me. 395, is not to be reckoned as one of the four, and the sale cannot be legally made after the fourth day." The day of seizure not being reckoned, the sale must be on the fourth day. Ordway v. Ferrin, 3 N. H. 69. If the day of the seizure as well as that of the sale, were both excluded, the defendant would be allowed parts of both those days beyond the time required by law. Bemis v. Leonard, 118 Mass. 502.

The sale in the case at bar should have been on the twelfth. The defendant is not to have four whole days and parts of two others. The rule in England is that in case of goods distrained and sold within four days, the days must be calculated inclusively of the last, and exclusively of the day of taking. Robinson v. Waddington, 66 E. C. L. 753.

In the Massachusetts statute, the phrase "for the space of four days" occurs as in that of this State. But the space of four days" embraces no more than four days. Such too has been the practical construction, as is clearly shown by the many decisions to which reference has been made.

The main ground of defense is that Sunday is not to be reckoned as a day. The statute provides that the distress is to be kept "for the space of four days at the expense of the owner," and if the tax be not paid within that time, the distress shall be sold at vendue by the officer for its payment. The expression, "the space of four days," excludes no day. It implies consecutive days. "Sunday," remarks Byles, J., in Peacock v. The Queen, 93 E. C. L. 264, "at common law, is just like any other day." "Sunday," observes Lord Ellenborough, in Dreswell v. Green, 14 East, 537, "is as much a day to occupy space of time as any ohert day." When the statute prescribes the number of days within which an act is to be done, and nothing is said about Sunday, it is to be included. It was held in Carville v. Additon, 62 Me. 459, that it was no ob jection to the legality of the collector's proceedings

that one of the four days during which the distress was kept was Sunday. So in State v. Wheeler, 64 Me. 532, it was decided the draft for jurors was valid, although one of the four days before the drafting was Sunday.

Whenever the Legislature intend Sunday shall be excluded from the days within which an act shall be done, it is done in express terms, as in chapter 84, section 3. It is never left to implication. When goods are sold on execution, Sunday is excluded by statute from the four days during which the goods seized are to be kept. But Sunday is not excluded where the collector distrains for non-payment of taxes. Revised Statutes, ch. 6, § 104. "Where an act of Parliament gives a specified number of days for doing a particular act, and says nothing about Sunday," observes Hill, J., in Ex parte Simpkin, 2 E. & E., "the days are consecutive days, including Sunday."

In Asmole v. Goodwin, 2 Salk. 624, it was held "a to business done out of court, as rules to plead within four days, etc. Sundays are reckoned the same as other days." The uniform current of authorities is in conformity with this decision up to the present time. Thus in Ex parte Simpkin, 2 Ellis & E. 392, it was decided that when an act of Parliament gives a specified number of days for doing a particular act and says nothing about Sunday, the days are consecutive days including Sunday. So in this country. In King v. Dowdall, 2 Sandf., section 131, Oakley, C. J., uses this language: "We know of no rule or principle by which it (Sunday) is to be excluded from the computation when it is an intermediate day," and we have supposed the law on the subject to be settled.

The distress for taxes may be made on any day of the week, Sunday excepted. The law has not prohibited seizure on any week day. But the property seized cannot be sold on Sunday, not because Sunday is not a day, but because it is a day on which, by statute, the execution of civil process is prohibited. Revised Statute, ch. 81, § 78. No sale can be made on the preceding Saturday, when the seizure was made on Wednesday, because that would be against the provision of the statute requiring the officer to keep the property distrained four days. When then is the sale in such case to be made? The statutes must be construed together. The seizure may be made on any secular day. The property seized must be kept four days by statute. Its sale is prohibited on Sunday. Being lawfully seized, it must be sold. As it cannot be legally sold within three days, it must be sold on Monday because all official or executive action is prohibited on Sunday. The true rule on this subject is laid down In the matter of Goswiler's Estate, 3 Penn. 200, thus: Whenever by a rule of court or an act of the Legislature, a given number of days are allowed to do an act, or it is said an act may be done within a given number of days, the day in which the rule is taken or the decision is made is excluded, and if one or more Sundays occur within the time, they are counted unless the last day falls on Sunday, in which case the act may be done on the next day." To the same effect is the opinion of the Supreme Court of Rhode Island in Barrows v. Eddy, 12 R. I. 25. In Hughes v. Griffith, 106 E. C. L. 323, it was held in the computation of time, that when the last day falls on a Sunday and the act is to be done by the party, it may be done on the next practicable day.

The original notice being defective, no postponement can cure the original defect. "A valid sale cannot be made at an adjournment which would have been invalid if made on the day adjourned from." Wilson v. Sawyer, 61 Me. 531.

Defendant defaulted.

CONTRACT TO RUN BOAT ON SUNDAY INVALID.

UNITED STATES CIRCUIT COURT, E. D. MICHIGAN, JUNE, 1883.

GAUTHIER v. Cole.

A contract which by its terms must be performed in part on Sunday made in Michigan to run a boat from one point to another in that State is void, though the boat in making the trip must pass through Canadian waters.

ACTION on a contract. Motion for a new trial after

a verdict directed for the defendants, on the ground that the contract was to be performed on Sunday.

F. H. Canfield, for plaintiff.

W. H. Wells, for defendants.

BROWN, J. The contract provided that defendants should, upon request, send one of their steamers, in continuation of its Saturday's trip, from Alpena to the Duck islands or Cockburn island, upon the east shore of Lake Huron. Plaintiff's own testimony showed beyond contradiction that the steamers, upon their Saturday's trips from Bay City to Alpena, did not arrive at Alpena until about 3 o'clock Sunday morning, and that they advertised to leave Alpena for Bay City at 6 o'clock on Monday morning. The contract must therefore be performed between these hours. The testimony further showed that the usual running time from Alpena to the islands and back was 12 hours, and that the steamer would be detained there, lading and unlading, about two hours. That would bring her back to Alpena about 6 o'clock Sunday evening.

*

Comp. Laws, section 1984, provide that "no person shall keep open his shop, warehouse, or work-house, or shall do any manner of labor, business, or work, except only works of necessity and charity, * * on the first day of the week." Defendants' contention that this statute must be speciall pleaded cannot be supported. It is true that in England, under the pleading rules of Hilary term, 4 Wm. IV., illegality of consideration must have been specially pleaded (Potts v. Sparrow, 1 Bing. N. C. 594); but the rule was otherwise at common law. 1 Chitty, Pl. (6th ed.) 511. In this State illegality of consideration may be shown under the general issue. Myers v. Carr, 12 Mich. 69; Dean v. Chapin, 22 id. 276; Hill v. Callaghan, 31 id. 425; Snyder v. Willey, 33 id. 489. This was also held to be the proper practice under the common-law system of pleading by the Supreme Court of the United States in Craig v. Missouri, 4 Pet. 410, 426.

It is difficult, in this case, to see how the plaintiff can escape the application of the statute. Not only are contracts made upon Sunday void, but contracts to do any manner of work on Sunday are equally within the inhabition of the act. Allen v. Duffie, 43 Mich. 5; Smith v. Wilcox, 24 N. Y. 353; Berrill v. Smith, 2 Miles (Pa.), 402; Nodine v. Doherty, 46 Barb. 59; Adams v. Gay, 19 Vt. 358; Slade v. Arnold, 14 B. Mon. 287; Palmer v. City of New York, 2 Sandf. 318; Phillips v. Innes, 4 C. & F. 234.

Nor does the fact that the contract is maritime take it out of the operation of the statute. While the ordinary labor incident to the navigation of a vessel must undoubtedly go on upon Sunday as well as other days, it is neither usual, nor under ordinary circumstances lawful to load or unload upon that day, or to require seamen to do any manner of work not demanded by the exigencies of the voyage. Thus in Pate v. Wright, 30 Ind. 476, plaintiffs agreed to purchase of defendants 3,000 barrels of flour for the purpose of shipping the same to New Orleans, and in anticipation of the completion of said purchase, engaged a steamer to take the

flour on board, and transport the same to New Orleans. Defendants were notified that the steamer would stop at the place designated for the delivery of the flour on Sunday. The court held that they were under no obligation to deliver the flour upon that day, although there was danger at that time of navigation being closed by ice, so that the steamer might be unable to complete her voyage. This, it must be admitted, is an extreme case. In the case of the bark Tangier (Richardson v. Goddard, 23 How. 28), a distinction was drawn between a general fast day appointed by the governor of the State and Sunday, and it was held that there was neither a law of the State forbidding the transaction of business on that day, nor a general usage ingrafted into the commercial and maritime law fordidding the unlading of vessels. See also Powhattan Steamboat Co. v. Appomattox R. Co., 24 How. 247. In neither of these cases was it intimated that the Sunday laws were inapplicable to maritime transactions.

Neither is this case affected by the fact that a portion of each voyage was to be performed within Canadian waters, and that the law of Canada upon the subject of Sunday observance is not proven. Both the inception and completion of performance were to take place in this State, and the mere circumstance, that in the course of their trips the steamers must pass beyond the boundaries of the State, does not free the contract from its taint of illegality.

A new trial must be denied.

REDUCTION OF SALARY OF PUBLIC OFFICER. NEW HAMPSHIRE SUPREME COURT.

MARDEN V. CITY OF PORTSMOUTH.*

An election to and acceptance of a public office, at a fixed salary, does not create a contract so that the salary cannot be changed during the term of such election. City councils have the power to change the salary of any officer elected by them, or by the mayor and aldermen.

ACTION for official salary. The plaintiff was elected

At

city marshal of Portsmouth, October 2, 1874. that time the city marshal received an annual salary of $800, and his fees as a witness in the police court in all cases where the city was a party or interested. Octo ber 9, 1874, an ordinance of the city fixed the salary at $700, and required all fees and costs allowed him in the police court, including his costs as a witness in criminal cases and in any other case in which the city might be a party or interested, to be paid to the city. The plaintiff held the office until October 28, 1875, when he was re-elected, and continued to hold the office until August 4, 1876. The question was reserved whether he was entitled to recover at the rate of compensation fixed when he was elected and accepted, or at the rate fixed by the ordinance of October 9, 1874.

Frink, for plaintiff.

Foster, for defendant.

STANLEY, J. The city councils were by law vested with all the powers of towns-Gen. St., ch. 44, § 1; and among these powers was that of fixing the compensation of police officers. Gen. St., ch. 44, § 2; ch. 235, § 6. The plaintiff was city marshal, and by virtue of his office, a police officer. Gen. St., ch. 43, § 7. This being the case, he was only entitled to recover such compensation as was fixed by the city councils. The acceptance of the office was under the implied condition that the city councils might change the salary at any time. There is nothing in the statute which conflicts

*To appear in 59 New Hampshire Reports.

with this idea; on the contrary, the fact that there is a special provision "that the salary of the mayor shall not be increased or diminished from the time of any election until the close of the term; " Gen. St., ch. 41, § 11, according to the maxim "that the express mention of one thing implies the exclusion of another," is evidence of the understanding of the Legislature that the election to office and its acceptance does not preclude the proper authority from changing the compensation attached to any office, in the absence of any provision of the Constitution or the statutes to the contrary.

The plaintiff contends that his election and acceptance, at a fixed salary, created a contract, which could not be changed without his consent. Whether this position is correct we need not decide; but it might be urged in answer to it that the plaintiff's election and acceptance lack the element of mutuality necessary to make a valid contract. He could not have been compelled to serve, and no action could have been maintained against him if he had refused to serve or had resigned at any time. Contracts relate to property and property rights. An office is neither. It caunot be purchased, or sold, or incumbered, within the ordinary meaning of those terms. The office of city marshal was a public office, created for the preservation of the public peace, and not to subserve private ends. By virtue of his office he was a conservator of the peace. Gen. St., ch. 43, § 7. Offices are not incorporeal heredituments, nor have they the quality of grants. They are rather agencies for the accomplish ment of particular objects. They are created for the benefit of the public, and not for the benefit of the incumbent. Their tenure is fixed with a view to the public convenience, and not to confer the emoluments during their term on the office-holder. The prospective salary and emoluments are not property in any sense. They more nearly resemble daily wages unearned, and which may never be earned because the incumbent may die, resign, be removed, or superseded, and his place filled by another; or the office may be abolished. If the election or appointment to and acceptance of an office constitute a contract which cannot be modified or annulled, then it is beyond the power of the Legislature to repeal or modify any statute creating an office, which shall be effectual during the incumbency of the person then in it. It is enough to say that this view has not been adopted by the Legislature, and is not in accordance with the law.

It may not be easy to distinguish this case in principle from that where a person pays the fee and obtains a license to carry on a particular business for a specified time. In such cases it is held that there is nothing in the nature of a contract conferring a vested right such as is protected by the Constitution of the United States, and that such license is revoked and annulled by the repeal of the statute before the expiration of the time limited in the license. State v. Holmes, 38 N. H. 225; Baxter v. Pennsylvania, 10 How. 416; Calder v. Kurby, 5 Gray, 597; and if the office may be abolished and the right to receive any compensation thus be revoked and annulled, it may be difficult to explain upon what principle it is that the amount of compensation cannot be changed. Smith v. Mayor, 37 N. Y. 518; Conner v. Mayor, 5 id. 285, 295; People v Garey, 6 Cow. 642; Warner v. People, 2 Denio, 272, 292; S. C., 7 Hill, 81; Wilcox v. Rodman, 46 Mo. 322; State v. Douglas, 26 Wis. 428; Commissioners v. Jones, 18 Minn. 199; Trustees v. Woodward, 4 Wheat. 518, 626.

In Rindge v. Lamb, 58 N. H. 278, it was held that a selectman was not entitled to more compensation than he agreed with the town to take. The questions, whether if the town had voted to pay the selectmen a

particular sum they could have rescinded that voted and voted a less sum, or whether if they had voted not to pay them any thing for their services they could have recovered any thing (Dill. Mun. Corp., $ 168, 169, 170; Farnsworth v. Melrose, 122 Mass. 268; Sikes v. Hatfield, 13 Gray, 347; Sawyer v. Pawners' Bank, 6 Allen, 207, 209; Bonden v. Brookline, 8 Vt. 284), were not raised or considered.

Our conclusion is, that the plaintiff is entitled to pay at the rate of $800 per year from his election, October 2, 1874, to the passage of the ordinance of October 9, 1874, and his witness fees in suits or prosecutions where the city were a party or interested during that time, and after that at the rate of $700 per year in full for salary and witness fees.

CIVIL DAMAGE LAW-ACTION AGAINST LIQUOR SELLERS JOINTLY.-In an action by a wife, under the seventh section of the act of May 1, 1854, to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18, 1870, against two persons for injury to her means of support resulting from the habitual intoxication of her husband, caused by intoxicating liquors sold and furnished him by the defendants, and where, from the facts found, it appears that the defendants each sold intoxicating liquors to the husband, and that they were in no way connected in business, and that neither of them was in any way interested in the sales made by the other; but that the husband of the plaintiff, during the time in which the sales were made, was habitually intoxicated, and that the sales were made by both defendants with knowledge of this fact, and the sales thus made contributed to keep up said habit. Held, that the defendants are jointly liable. Rantz v. Barnes. Opinion by Mc Canley, J.

NEGLIGENCE-WALKING ON RAILROAD TRACK-CONTRIBUTORY.-Where a locomotive with cars attached is standing on a railroad track near a railrood station or other place where cars are frequently moved forward or backward, a person who goes upon the railroad track, seeing the locomotive and cars, and knowing that they would, within a few minutes, be moved toward him, and walks upon the track away from the train without keeping watch of its movements, when there was nothing to hinder him from seeing the movements of the train in time to avoid danger, and when he could have gone in the same direction without walking on the track, is guilty of such negligence as will prevent his recovery for an injury caused by the carelessness or unskillfulness of the employees of the railroad, not amounting to willfulness on their part. A person so walking upon a railroad track is not free from negligence which will prevent his recovery for an injury so caused, if he omits to keep watch of the movements of the train, relying upon a rule or custom of the employees of the railroad, to give a signal for the moving of the train. The expectation that such signal would be given does not relieve a person in such situation from constant watchfulness for his safety. Baltimore & Ohio Railroad Co. v. Depew. Opinion by McCauley, J.

SURETYSHIP FOR ONE PARTNER IS NOT FOR FIRM.— D. and others executed a penal bond conditioned that they would pay to the obligee any sum or sums, which D. may owe to or thereafter become indebted to the obligee, upon bond, bill, note, draft, check, account or *To appear in 40 Ohio State Reports.

otherwise; and would indemnify the obligee and save him harmless "from all loss, damage and expense, by reason of said or any indebtedness incurred by D." Subsequently a promissory note was made and delivered to the obligee for value by a firm of which D. was a member, and for its use, and which was at its inception indorsed by D. in his individual name. Held the note is not within the condition of the bond, and the action is not maintainable. Donley v. Liberty Improvement Bank. Opinion by Martin, J.

NEW HAMPSHIRE SUPREME COURT ABSTRACT. *

ATTORNEY-CONTRACTS FOR SERVICE OF.-Contracts for attorney's services stand on the same ground and are governed by the same rules as other similar contracts for services. Whether the employment of an attorney to prosecute a petition for divorce was an entire contract, is a question of fact to be determined upon evidence. Dodge v. Janvrin. Opinion by Stanley, J.

CARRIER EVIDENCE OF NEGLIGENCE-IMPEACHING WITNESS. (1) In an action against a common carrier of passengers, for damages occasioned by his negligence, his conduct subsequent to the time of the plaintiff's injuries may be proved, if it tends to show an admission of negligence. (2) If a witness does not remember, or denies, saying that which is imputed to him, evidence may be given that he did say it, provided it is relevant to the matter in issue. Crowley v. Page, 7 C. & P. 789; Nute v. Nute, 41 N. H. 60; Sanderson v. Nashua, 44 id. 492. Marison v. Towle. Opinion by Smith, J.

DIVORCE-ALIMONY TO WIFE WHEN SHE IS UNSUCCESSFUL. Upon any decree of divorce, the court may order the husband to pay the wife such sum of money as may be deemed just, even when a divorce is decreed against her, and she is not entitled to a divorce against him. Gen. St., chap. 163, § 12; Sheafe v. Sheafe, 24 N. H. 564; Sheafe v. Laighton, 36 id. 240; 2 Bish. Mar. & Div., § 378. Janvrin v. Janvrin. Opinion by Bingham, J.

MORTGAGE -GRANTEE SUBJECT TO DOES NOT ASSUME. Where land is conveyed in terms subject to a mortgage, the grantee assumes no personal liability for its payment by the mere acceptance of the deed. The insertion of such a clause qualifies the covenants of warranty on the part of the grantor and is notice merely to the grantee that he is buying only the equity of redemption. Trotter v. Hughes, 12 N. Y. 74; Belmont v. Coman, 22 id. 438; Binsse v. Paige, 1 Keyes, 87; Stevenson v. Black, Saxton (N. J.) 338: Klapworth v. Dressler, 2 Beas. Ch. (N. J.) 62; Post v. Bank, 28 Conn. 420; Johnson v. Monell, 13 Iowa, 300; Kearney v. Tanner, 17 Serg. & R. 94; Fiske v. Tolman, 124 Mass. 224; Woodbury v. Swan, 58 N. H. 380; 1 Jones Mort., §§ 735-9. The law has been held otherwise in England. Waring v. Ward, 7 Ves. 333. Lawrence v. Toule. Opinion by Smith, J.

SEDUCTION-DAMAGES-MENTAL SUFFERING.-In an action by a father for the seduction of his daughter, the plaintiff under a count setting up generally loss of the daughter's service, may recover compensation for his mental suffering caused by defendant's act. Lunt v. Phelbrick. Opinion by Doe, C. J.

TOWN-LIABLE FOR OBSTRUCTION TO HIGHWAY CREATED BY RAILROAD COMPANY.-If a railroad company, acting under their charter, create an obstruction in a highway by which a traveler sustains dam*To appear in 59 New Hampshire Reports.

age, the town is answerable as if the same acts had been done by an individual. Willey v. Portsmouth, 35 N. H. 313; Elliot v. Concord, 27 id. 204; State v. Dover, 46 id. 452; Bacon v. Boston, 3 Cush. 179; Eyler v. Co. Com'rs., 49 Md. 257; Watson v. Tripp, 11 R. I. 98. Sides v. Portsmouth. Opinion by Bingham, J.

NEW JERSEY SUPREME COURT ABSTRACT. JUNE TERM, 1883.*

CONTRACT-BUILDING CONTRACT-ARCHITECT'S CERTIFICATE--WAIVER.--Suit will not lie on a building contract for money payable upon an architect's certificate without the production of such certificate or evidence that its production has been waived. Waiver may be express or proved by acts and conduct of the party entitled to demand it. Less evidence of waiver is requisite when it clearly appears that the contract has been fully performed. Add. on Cont. 666; Scott v. Liverpool Corp., 25 L. J. Ch. 236; Mayor, etc., v. Ackers, 16 L. J. Ex. 6; Moffatt v. Dickson, 13 C. B. 543; Dobson v. Hudson, 1 C. B. (N. S.) 652. Byrne v. Sisters of Charity of St. Elizabeth. Opinion by Knapp, J. DEATH-PRESUMPTION OF, FROM ABSENCE--IDENTITY OF ONE CLAIMED TO BE ALIVE.-A person who absents himself from this State for seven successive years is presumed to be dead, and the party asserting that he is living must prove it. After the presumption of death arises, the burthen of proof is on the party denying the death to show that the person is alive and to overcome the presumption by proof. There should be something more than similarity of name to overcome the presumption of death raised by the statute. The identity of the person should be proved. Hoyt v. Newbold. Opinion by Parker, J.

MUNICIPAL CORPORATION -DISCRIMINATION IN WATER CHARGES BY, FORBIDDEN.-The board of public works cannot, under the charter of Jersey city, charge certain water consumers with expensive meters put in by them to regulate the supply and rent to be paid, without the consent of the persons charged; nor impose the penalty of cutting off the water for non-payment of the price of the meter. The proviso in section 87 of the charter that their rules, regulations and by-laws shall not be inconsistent with the Coustitution and laws of the State of New Jersey, or of the United States, forbids the making of unwarranted discriminations in particular cases, and arbitrary charges, with the penalty of forfeiture of the right to use the water. Dayton v. Quigley, 2 Stew. Eq. 77; Parker v. City of Boston, 1 Allen, 361; Young v. City of Boston, 104 Mass. 95; Kip v. Paterson, 2 Dutch. 298; 1 Dill. on Mun. Corp., §§ 319, 320, 321, 322. State of New Jersey v. Mayor of New Jersey. Opinion by Scudder, J.

NEGLIGENCE-FIRE SET BY ENGINE - SPARK-ARRESTER.-If a railroad company use upon its engine a spark-arrester of an approved pattern in general use, and which upon a careful inspection by a skilled mechanic, appeared to be in good condition, such company shall not be responsible for damage done by fire occasioned by sparks escaping through such spark-arrester. Hoff v. West Jersey Railroad Co. Opinion by Deasley, C. J.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

CONTRACT-TO OUST COURT OF JURISDICTION OF A CONTROVERSY INVALID.-Parties cannot by private agreement in advance of a controversy oust the court *To appear in 16 Vroom's (45 N. J. Law) Reports.

of jurisdiction. It is true that a matter in controversy, or a pending civil suit, may be finally submitted to arbitration or to the decision of a single judge, or by omitting to exercise their rights, the parties may waive them, as they choose, but they cannot by an agreement in advance, when no matter of dispute or controversy has yet arisen, forfeit their rights to a proper adjudication in the appropriate tribunal established by law, when a proper case may be presented. In the case of Insurance Co. v. Morse, 20 Wall. 445, this point was very fully discussed, and it was there held, that as the Constitution of the United States secures to citizens of another State than that in which suit is brought, an absolute right to remove their cases into Federal courts, upon compliance with the terms of the judiciary act, neither a statute or the State nor an agreement of the litigant parties made in advance under it, justified a denial of the constitutional right. In support of this view we may refer also to the cases of Nate v. Hamilton Ins. Co., 6 Gray, 174; Hobbs v. Manhattan Ins. Co., 56 Me. 421; Scott v. Avery, 5 H. of L. Cas. 811, and Story Eq. Jur., § 670. It is true also that parties may impose as condition precedent to application to the courts, that they shall first have settled the amount to be received by an agreed mode of liquidation or adjustment, and this in many cases provides a much more appropriate tribunal for the purpose than a jury. Monongahela Navigation Co. v. Fenton, 4 W. & S. 205; Lauman v. Young, 7 Casey, 306; Mentz v. Amenia Fire Ins. Co., 79 Penn. St. 480. The principle involved in these cases does not close the access of the parties to the courts of law, as the award of the arbiter is only enforceable there. Appeal of Rea. Opinion by Clark, J. [Decided Nov. 12, 1883.]

MINERALS

PETROLEUM NOT A

DEFINITION MINERAL-DEED.-A deed excepted from the grant "all timber suitable for sawing, also all minerals." Held, not to except petroleum. It is true that petroleum is a mineral. But salt and other waters impreguated or combined with mineral substances are minerals; so are rocks, clays and sands; any thing due from mines and quarries; in fine, all inorganic substances are classed under the general name of minerals. Bouv. L. Dic.; Wor. Dic.; Dan's Geology; Grey's Botany. If the reservation embraces all these things, it is as extensive as the grant, and therefore void. If then any thing at all is to be retained for the vendor, by some means the meaning of the word "minerals" must be limited. The rule by which this may be done is well stated by Gibson, C. J., in the case of the Schuylkill Navigation Co. v. Moore, 2 Whart. 477, as follows: "The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for," continues the learned chief justice, 46 it may be safely assumed that such was the aspect in which the parties themselves viewed it." So Kennedy, J., adopting this same rule in the case of Gibson v. Tyson, 5 Watts, 34, when construing an exception in a deed " of all mineral or magnesia of any kind," says that by the bulk of mankind nothing is considered as a mineral except such things as be of a metallic nature, such as gold, silver, copper, lead, etc., and that in looking at the deed before him, under the general understanding, he would have hesitated about classing chromate of iron as a mineral, except that from the parol testimony it appeared the parties themselves regarded it as a metallic ore of some kind. Oil is regarded even by science and law as a mineral only because of its inorganic character, or as in Stoughton's Appeal, 7 Nort. 198, because of its forming part of of the freehold from which it is taken. Certainly in popular estimation. petroleum is not regarded as a mineral substance any