lation, but at the same time they are intended to subserve the public good. The travel on them bears no analogy to our notions of travel on an ordinary street or highway where every one travels at his pleasure in his own conveyance without paying tolls or fares. The uses are totally different and even inconsistent. The one is exclusively in favor of private interests and the other is open and free to all. The doctrine most in consonance with our sense of justice is, when the fee of the street remains in the abutting land owner, the corporation may grant the right to the railway company to lay its track along or across any street, but the company avails of its privilege at its peril. If in laying its track it causes a private injury to him who owns the fee in the adjoining premises, it must make good the damages sustained." The doctrine of this case has since been embodied in the text by Mr. Dillon, in the recent edition of his valuable work on municipal law, in a distinct section, and the author says it has for its support the sanction of some of the most eminent jurists in this country. At all events it is now the settled law of this State, and it is now too, late to insist a different rule should be adopted. The principle of Hartley's case is conclusive of the one being considered. What is there said respecting the right of a railway to the use of a common highway, applies with equal force to a telegraph corporation. In the same sense the construction of a line of telegraph on the highway is an additional servitude, to which the fee of the land had not before been subjected. The servitude differs more in degree than in character, and whether the damages are great or small, the corporation asking for or appropriating to itself the benefit of such new servitude must make just compensation to the owner of the fee. In many and perhaps in most instances the damages may be merely nominal, but in others an actual detriment may be occasioned. That of course is a question to be determined from the evidence in each particular case, with which this court has no concern.

The decision of the trial court in sustaining the demurer to the special pleas of justification is warranted by the law, and as its finding as to the damages sustained by plaintiff has been affirmed by the Appellate Court, it is of course conclusive on this court, and the judgment of the latter court will be affirmed.

Judgment affirmed.

NOTE. See also in reference to the subject, Thompson v. Hodgson, 2 Hun, 146; Barney v. Keokuk, 94 U. S. 324; Murphy v. Chicago, 29 Ill. 279; City of Quincy v. Jones, 76 id. 231; Edwardsville R. Co. v. Sawyer, 92 id. 317; Milburn v. Cedar Rapids, 12 Iowa, 247; Clinton v. Cedar Rapids and Missouri R. Co., 24 id. 455; Tomlin v. Debuque R. Co., 32 id. 106; Cook v. Burlington, id. 357; Ingraham v. Chicago, etc., R. Co., 38 id. 669; Western Un. Tel. Co. v. Rich, 15 Kan. 517; Prather v. Railroad Co., 52 Ind. 40; Gebhard v. Reeves, 75 Ill. 301; Town of Oldtown v. Dooley, 81 id. 255; Pfeifer v. Coe, 8 Am. Rep. 58; Cote v. Drew, id. 363; Williams v. New York Centrul R. Co., 16 N. Y. 97; Wager v. Troy Union R. Co., 25 id. 526; Craig v. Rochester City R. Co., 39 id. 404; Schurmeier v. St. Paul and F. R. Co., 10 Minn. 82; Brisbane v. St. Paul and L. C. R. Co., 23 id. 114; Lafayette M. and B. R. Co. v. Mindoch, 68 Ind. 137; Ford v. Chicago and Northw. R. Co., 14 Wis. 609; Blesch v. Chicago and Northw. R. Co., 43 id. 183; Cape Girardeau, etc., R. Co. v. Renfro, 58 Mo. 265; Moses v. Railway Co., 21 Ill. 517; Roberts v. Chicago, 26 id. 249; Jersey City and B. R. Co. v. Jersey City and H. Co., 20 N. J. Eq. 69; Hinchman v. Patterson, 17 id. 76; Railroad Co. v. Heisel, 38 Mich. 66; Attorney-General v. Metropolitan R. Co., 125 Mass. 515; 2 Dill. Mun. Corp., $722; Pedicord v. Balt., etc., R. Co., 34 Md. 479; Hiss v. Baltimore and Hamp. R. Co., 52 id. 252; Regney v. Chicago, 102 Ill. 64.

LIEN OF ATTORNEY FOR COSTS WHEN ACTION COMPROMISED.

ENGLISH COURT OF APPEAL, JUNE 7, 1883.

THE HOPE, 49 L. T. Rep. (N. S.) 158.

In a seaman's wages action, where the defendants effect a settlement behind the back of the plaintiff's solicitor, and the plaintiffs fail to pay their solicitor's costs, the solicitor cannot obtain an order that the defendants should pay his costs, unless he show clearly that in making the compromise there has been collusion between the parties with the intention of depriving him of his lien.

THIS

HIS was an appeal from an order of Sir Robert Phillimore, made in chambers, in an action for seamen's wages and damages for wrongful dismissal, by which he ordered that the defendants should pay the taxed costs of the action to the plaintiff's solicitors.

The action was commenced on the 17th of January, 1883, in the Liverpool district registry, by the plaintiffs, two seamen, against the owners of the ship Hope, and on the 19th the defendant's solicitors gave an undertaking to appear. On the 22d the plaintiffs accepted 51. each from the defendants in settlement of their claim and costs, and thereupon left the country without paying their solicitors their costs. The plaintiff's solicitors then made an application to the district registrar at Liverpool for an order that the defendants should pay their taxed costs, alleging that the settlement had been made "behind their backs."

The Liverpool registrar referred this application to Sir Robert Phillimore, who ordered that the defendants should pay the taxed costs of the plaintiff's solicitors.

From this order the defendants appealed.

BRETT, M. R. We have some difficulty in dealing with this case, seeing that it was taken by Sir Robert Phillimore in chambers, where the learned judge had not the advantage of having the authorities on the point cited to him. I do not think we can differ from the judge merely on the ground that he took a wrong view of the evidence. We differ from him in that he decided this case on wrong legal principles in holding, that if a compromise is made between the parties to the cause without the knowledge and acquiescence of the plaintiff's solicitors, the defendants should pay the plaintiff's solicitor's taxed costs. There is strong evidence to show that the compromise was made without the knowledge or acquiescence of the plaintiff's solicitors, and that the defendants knew that the plaintiffs had employed solicitors. The cases which have been cited to us show that the mere fact that a compromise has been effected without the knowledge of the solicitor is not sufficient; but that it must be further shown clearly that there was the intention in the minds of both of the parties to deprive the plaintiff's solicitors of their lien for costs. It seems to me that in this case there is absolutely no evidence of such collusion, or that it was in the minds of the defendants to deprive the plaintiff's solicitors of the fruits of what they had done. We are asked to say that that is the necessary inference to be drawn from a settlement of this kind having been made by sailors with ship-owners. But there is no rule of law that sailors are to be presumed to be cheats, nor is there any evidence at all as to that. This case therefore has not been brought within the rule laid down in the cases which have been cited, and this appeal must therefore be allowed.

LINDLEY, L. J. I also think that this order must be discharged. I do not think that there is any difference in the principles to be applied to cases in the Admiralty Division, and to those in any other divisions of the High Court. It seems to me that there is not any rule

or practice which prevents parties effecting a compromise without the intervention of their solicitors. Therefore a litigant who employs a solicitor in the ordiuary way can compromise the action; but this principle or rule has been engrafted upon that, namely, that the compromise must be honestly effected and not for the purpose of cheating the solicitors. The general rule is correctly stated in Archbold's Practice (13th ed., pp. 142, 143), where after referring to the Solicitor's Act of 1860, 23 and 24 Vict., ch. 127, § 28, which enables the court to make a charging order upon property recovered or preserved through the instrumentality of the solicitor, it is stated that "a solicitor has also, it is said, a lien for his costs upon a judgment recovered by his client, or upon money or costs awarded or ordered to be paid to him in a cause in which the solicitor was employed; and this even though the client had previously become a bankrupt. This lien however is in truthi merely a claim to the equitable interference of the court. Then it runs on thus, which I think is right, "the court will exercise this equitable interference when the solicitor has given the opposite party or his solicitor notice of his lien, and that he claims the amount payable to his client to be paid to him in the first instance; in which case the opposite party will at his peril pay the client or release the claim, or compromise it without the assent of the solicitor. So the court will exercise it, though no such notice has been given, in cases where it is clearly made out that there has been some collusion or fraudulent conspiracy between the parties to cheat the solicitor of his costs. But unless such notice be given, or there has been such collusion or fraudulent conspiracy, the client, although he sues in forma pauperis, may compromise with the other party and give him a release without the intervention of his solicitor." In support of every one of those propositions a number of authorities are therein cited. Here there is no evidence that it was the intention of the parties to defeat the plaintiff's solicitors of their lien for costs, and we cannot presume that sailors are cheats.

FRY, L. J. It appears to me that the law which governs this case was correctly laid down by Tindal, C. J. in Nelson v. Wilson, 6 Bingh. 568, when he says that "it is undoubtedly competent for the party to settle the case without the intervention of his attorney; and if the attorney proceeds in order to secure his costs, he is bound to make out a clear case of fraud between the plaintiff and defendant to deprive him of such costs." In my opinion the plaintiffs have failed to establish such a clear case of fraud in this case. I therefore think the order was wrong, and this appeal must be allowed.

Appeal allowed.

UNITED STATES SUPREME COURT ABSTRACT.

ADMIRALTY-HAS JURISDICTION OF COLLISION BY CANAL BOAT ON CANAL.-The District Court of the United States for the Northern District of Illinois, as a Court of Admiralty, has jurisdiction of a suit in rem against a steam canal-boat, to recover damages caused by a collision between her and another canal-boat, while the two boats were navigating the Illinois and Lake Michigan Canal, at a point about four miles from its Chicago end, and within the body of Cook county, Illinois, although the libellant's boat was bound from one place in Illinois to another place in Illinois. Within the principles laid down by this court in The Daniel Ball, 10 Wall. 557, and The Montello, 20 id. 430, which extended the salutary views of admiralty jurisdiction applied in The Genesee Chief, 12 How. 443;

The Hine v. Trevor, 4 Wall. 555, and The Eagle, 8 id. 15, the court has no doubt of the jurisdiction of the District Court in this case. Navigable water situated as this canal is, used for the purposes for which it is used, a highway for commerce between ports and places in different States, carried on by vessels such as those in question here, is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a State, and subject to its ownership and control; and it makes no difference as to the jurisdiction of the District Court that one or the other of the vessels was at the time of the collision on a voyage from one place in the State of Illinois to another place in that State. The Belfast, Wall. 624. Many of the embarrassments connected with the question of the extent of the jurisdiction of the admiralty disappeared when this court held in the case of The Eagle, supra, that all of the provisions of section 9 of the Judiciary Act of September 24, 1789, ch. 20 (1 St. 77), which conferred admiralty and maritime jurisdiction upon the District Courts were inoperative, except the simple clause giving to them "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction." That decision is carried out by the enactment in section 563 of the Revised Statutes, subdivision 8, that the District Courts shall have jurisdiction of "all civil causes of admiralty and maritime jurisdiction," thus leaving out the inoperative provisions. Matter of Boyer. Opinion by Blatchford, J.

[Decided Jan. 7, 1884.]

BANK-REPRESENTATIVE AUTHORITY OF CASHIERPRESUMPTION FROM COURSE OF DEALING.-A banking corporation, whose charter does not otherwise provide, may be represented by its cashier in transactions outside of his ordinary duties, without his authority to do so being in writing, or appearing in the records of the proceedings of the directors. His authority may be by parol and collected from circumstances or implied from the conduct or acquiescence of the directors. It may be inferred from the general manner in which, for a period sufficiently long to establish a settled course of business, he has been suffered by the directors, without interference or inquiry, to conduct the affairs of the bank. When during a series of years, or in numerous business transactions, he has been permitted, in his official capacity, and without objection, to pursue a particular course of conduct, it may be presumed, as between the bank and those who in good faith deal with it upon the basis of his authority to represent the corporation, that he has acted in conformity with instructions received from those who have the right to control its operations. That which directors ought, by proper diligence, to have known as to the general course of the bank's business, they may be presumed to have known in any contest between the corporation and those who are justified by the circumstances in dealing with it upon the basis of that course of business. Martin v. Webb. Opinion by Harlan, J.

[Decided Jan. 7, 1884.]

CONSTITUTIONAL LAW-POWER OF EMINENT DOMAIN OF GOVERNMENT MAY BE EXERCISED THROUGH STATES UNITED STATES PARTY TO SUIT.-(1) The power of eminent domain possessed by the general government can be exercised through the State governments. Consequently the provision of the act of Congress of March 3, 1875, in relation to the improvement of the Fox and Wisconsin rivers, that when land should be appropriated overflowed, or injured in making such improvement, the damages should be as

certained in the mode provided by the laws of the State where the same was situated is valid, and the State tribunals might entertain proceedings thereunder. The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and as said in Boom v. Patterson, 98 U. S. 406, requires no constitutional recognition. The provision found in the fifth amendment to the Federal Constitution, and in the Constitutions of the several States, for just compensation for the property taken, is merely a limitation upon the use of the powers. It is no part of the power itself, but a condition upon which the power may be exercised. It is undoubtedly true that the power of appropriating private property to public uses vested in the general government-its right of eminent domain, which Vattel defines to be the right of disposing, in case of necessity and for the public safety, of all the wealth of the country-cannot be transferred to a State any more than its other sovereign attributes; and that when the use to which the property taken is applied is public, the propriety or expediency of the appropriation cannot be called in question by any other authority. But there is no reason why the compensation to be made may not be ascertained by any appropriate tribunal capable of estimating the value of the property. There is nothing in the nature of the matter to be determined which calls for the establishment of any special tribunal by the appropriating power. Whether the tribunal shall be created directly by an act of Congress, or one already established by the States shall be adopted for the occasion, is a mere matter of legislative discretion. Undoubtedly it was the purpose of the Constitution to establish a general government independent of, and in some respects superior to, that of the State governments-one which could enforce its own laws through its own officers and tribunals; and this purpose was accomplished. That government can create all the officers and tribunals required for the execution of its powers. Upon this point there can be no question. Kohl v. United States, 91 U. S. 367. From the time of its establishment that government has been in the habit of using, with the consent of the States, their officers, tribunals, and institutions as its agents. Their use has not been deemed violative of any principle or as in any manner derogating from the sovereign authority of the Federal government; but as a matter of convenience and as tending to a great saving of expense. (2) Held also, that a provision in the act of 1875, that the United States should be represented in such proceedings by the department of justice was a waiver of the immunity of the United States from process. United States v. Jones. Opinion by Field, J. [Decided Dec. 10, 1883.]

PAYMENT PERSONAL PROPERTY ACCEPTED ASCONSTRUCTION OF CONTRACT.-For the purpose of settling a debt, the debtor gave to the creditor orders for twenty-five wagons, and the creditor gave to the debtor a written receipt, which he accepted, stating that the wagons were to be received in payment of the claim, provided they were delivered to the creditor in good condition and merchantable order, and that it was understood and agreed that if the wagons were so delivered in good condition they were to be sold for the highest prices that conld be obtained for them, and the surplus, after paying the debt and cost of selling, should be refunded to the debtor; twenty-one of the wagons were delivered, but none of them were in good condition and merchantable order; the creditor sold nineteen of them and made ineffectual efforts to sell the other two, and after crediting the net proceeds of sale, sued the debtor to recover the balance of the debt. Held, that the receiving the twenty-one

wagons, and proceeding to sell them was an acceptance of them pro tanto in payment of the claim; that the contract for the payment in wagons was unfulfilled as to the four wagons not delivered; and that the price for which the nineteen wagons were sold, aud the selling value of the two not sold, had no bearing on the case, unless there was a surplus of the proceeds of sale to be refunded to the debtor, under the contract. Winchester and Partridge Manufacturing Co.v. Funge. Opinion by Blatchford, J. [Decided Jan. 7, 1884.]

PENNSYLVANIA SUPREME COURT

ABSTRACT.

FIXTURES-REFUSAL TO PERMIT FORMER TENANT TO REMOVE-REPLEVIN.-The refusal of the owner of the premises, after he has taken possession thereof, to permit the former tenants to remove the fixtures, which they have attached to the premises during the term, will not enable the latter to maintain trover against the owner of the freehold. Trover lies for the conversion of goods or personal chattels. It does not lie for fixtures eo nomine. 1 Chit. Plead. 146. Title to land cannot be tried in such action when the plaintiff is not in possession. It does not lie for property severed from the realty, against one who has an actual adverse possession under claim of title. Mather v. Trinity Church, 3 S. & R. 509; Brown v. Caldwell, 10 id. 114; Powell v. Smith, 2 Watts, 126. If fixtures which the tenant might remove during his term be suffered to remain after its expiration, they become inseparable from the freehold. They cannot afterward be recovered by the tenant as personal chattels by action of trover against his landlord. White v. Arndt, 1 Whar. 91; Overton v. Williston, 7 Casey, 155. The owner of the freehold, in actual or constructive possession, may maintain trover against a tort-feasor, who has no right of possession, but enters only casually or temporarily, and severs and removes property therefrom; yet a tenant, after the expiration of his term, cannot maintain such action against his landlord. Wright v. Guier, 9 Watts, 172; Harlan v. Harlan, 3 Harris, 507; Clement v. Wright, 4 Wright, 250; Brewer v. Fleming, 1 P. F. Smith, 102. Fixtures are not goods and chattels for all purposes. They are not unless made so by the tenant's severance, or for the benefit of his execution creditors. While they remain attached they are part of the freehold. Minshall v. Lloyd, 2 M. & W. 450; Mackintosh v. Trotter, 3 id. 184. Darrah v. Baird. Opinion by Mercur, J. [Decided Nov. 20, 1883.]

MARRIAGE-DEED FROM HUSBAND TO WIFE UPHELD. -It is true a deed from a husband directly to his wife is a nullity at common law. Under modern legislation and the application of equitable principles, a wide departure has been made from the common law in respect to the ability of a wife to acquire and hold property. Her right of acquisition and power of control is not restricted to property obtained from one not her husband. When not in fraud of creditors of the husband, a conveyance from him directly to his wife may be sustained on equitable principles. Coates v. Gerlach, 8 Wr. 43; Townsend v. Maynard, 9 id. 198; Pennsylvania Co. v. Neel, 4 P. F. S. 9; Rose v. Latshaw, 9 Norris, 238. A husband may not only convey directly to his wife for a valuable consideration, but he may also convey to her as a gift, when not prejudicial to his creditors. Thompson v. Allen. Opinion by Mer

cur, C. J.

[Decided March 15, 1883.]

VERMONT SUPREME

COURT ABSTRACT. JANUARY TERM, 1883.*

GIFT FROM FATHER TO SON- DELIVERY.-The plaintiff and her brother lived with their father on his farm. The brother, on account of the infirmities of the father, had the whole management of the farm, and provided for the common table of the entire household. The covered carriage in question was kept, when not in use, in an outhouse on the farm built by the brother at his own expense. The father called the members of the family into the dining room of the house, and in the presence of all gave the carriage to the plaintiff, he requesting all to witness the gift. The defendant took the carriage off, and claimed that the father afterward gave it to him. Held, that the defendant was not entitled to have the court charge that the gift was invalid for want of a sufficient delivery; that if there was, under the facts of this case, a declaration of the gift in plain terms, and a surrender and acceptance of dominion, it was sufficient. Ross v. Draper, 55 Vt. 503; 1 Parsons Con. 201; 1 Bouvier, L. D. 633; 2 Kent Com. 439; Martrick v. Linfield, 21 Pick. 325; Kellogg v. Adams, 51 Wis. 138; S. C., 37 Am. Rep.; Harris v. Hopkins, 43 Mich. 272; S. C., 38 Am. Rep. 180. Fletcher v. Fletcher. Opinion by Veazey, J.

GIFT-OF INSURANCE MONEY FROM EXEMPT PROPERTY TO WIFE-ATTACHMENT-HUSBAND AND WIFE.

The husband owned a homestead and other property exempt from attachment. It was insured in the name of his wife. It burned; and the insurance money, with the knowledge and consent of the husband, was paid to her; and she, with his approbation, managed and treated it, and the property purchased with it, as her own. Held, That it was equivalent to a valid gift. That property purchased with the insurance money was not attachable on the husband's debts; nor property purchased with the wife's earnings, when he has allowed her to use them as her separate estate; nor the increase of such property, as of cows. And the result is the same though the labor of the husband on the wife's farm may have helped to some extent to produce the property in contention. Preno v. Hewitt. Opinion by Ross, J.

SURETYSHIP-RIGHT OF ACTION AGAINST PRINCIPAL-One having signed a note with two principals, and having been compelled to pay it, may sustain a several action against either one of the principals, and recover the amount paid. In Apgar v. Hiler, 24 N. J. L. 812, the court below charged the jury that whether the original note be joint or several, the liability of *Appearing in 55 Vermont Reports,

the principals to the surety is several; each is liable for the whole amount. The Court of Errors in review said: "If the surety is bound for several principals, he is entitled to proceed against each of them for the recovery of the whole of what he has paid. Each of the principals is debtor of the whole debt in favor of the creditor; and the person being surety for each of them has, by paying the debt, liberated each of them from the whole, and consequently has a right to conclude in solido against each of them for the reimbursement of the whole of what he has paid, with interest from the day of the demand. This rule prevails both in civil and common law." In Dickey v. Rogers, 9 Martin (La.), 588, it was held that where there are several joint debtors, the surety has the right to call on each of them for the whole amount of his obligation. In Overton v. Woodson, 17 Mo. 453, it was held that where two executors or administrators unite in one bond they are jointly and severally liable as principals to indemnify the surety who has been subjected to the payment of money by the default of one of them. In Duncan v. Keiffer, 3 Bin. 126, the court held to the same doctrine in case of a bond between individuals. "Having borne the burden of his principals, he stands, in many respects, in the place of a creditor, and may proceed against one or all of them for the whole amount paid." Baylies Surety, 461. This was said upon the authority of a case in 14 Barb. 32, where a surety had paid a joint judgment against two principals and himself. See also Poth. Tr. des Oblig. p. 2,ch. 6, § 7, art. 1, § 5; Theo. Pr. & Sur. 169, (ed, of 1836); Riddle v. Bowman, 27 N. H. 236; Jones v. Fitz, 5 id. 444. In West v. Bank, 19 Vt. 403, it was held that if one sign, or indorse a note as surety for several joint principals, and one of the principals dies, the surety having paid the debt, may claim a dividend from the estate upon the entire debt, notwithstanding he may hold collateral security for his liability. Devaynes v. Noble, 2 Rus. & Mylne, 495. Clay v. Severance. Opinion by Veazey, J.

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
JUNE, 1883.

CONTRACT-FOR ARBITRATION OUSTING COUrts of JURISDICTION VOID.-An agreement between a railroad company and a conductor employed by it, provided that a deposit should be made by the conductor with the company as security for the observance by him of its rules and regulations; that in case of a breach by him of any of said rules and regulations, the company might retain the whole of said deposit and any interest thereon and the amount of wages that might be due him, as liquidated damages for such breach; and that the company's president should be the sole judge between the parties whether the company was entitled to retain the whole or any part of said money as liquidated damages, and his certificate to that effect and of the cause of such retention should be a final adjudication thereof, and binding and conclusive evidence between the parties in any court that said money had been forfeited to the company. Held, that such a stipulation was an agreement to submit to arbitration and an attempt to oust courts of justice from all jurisdiction over the whole controversy, and was void. Wood v. Humphrey, 114 Mass. 185, Pearl v Harris, 121 id. 390; Vass v. Wales, 129 id. 38. White v. Middlesex Railroad Co. Opinion by Field, J.

CRIMINAL LAW-CONFESSION-WHEN INADMISSIBLE IN EVIDENCE.-The words, "You had better tell the truth," have sometimes been held or said to render a subsequent confession inadmissible, because they would probably be understood to mean that it would