Hence it seems to be eminently proper that where the legislative power exists some statutory provision should be made for binding the minority in a reasonable way by the will of the majority; and unless as is the case in the States of the United States, the passage of laws impairing the obligation of contracts is forbidden, we see no good reason why such provision may not be made in respect to existing as well as prospective obligations. The nature of securities of this class is such that the right of legislative supervision for the good of all, unless restrained by some constitutional prohibition, seems almost necessarily to form one of their ingredients, and when insolvency is threatened, and the interests of the public as well as creditors are imperiled by the financial embarrassments of the corporation, a reasonable "scheme of arrangement" may in our opinion as well be legalized as an ordinary "composition in bankruptcy." In fact such 64 rangement acts" are a species of bankrupt acts. Their object is to enable corporations created for the good of the public to relieve themselves from financial embarrassments by appropriating their property to the settlement and adjustment of their affairs, so that they may accomplish the purposes for which they were incorporated. The necessity for such legislation is clearly shown in the preamble to the Grand Trunk Arrangement Act, 1862, passed by the Parliament of the Province of Canada on the 9th of June, 1862, before the establishment of the Dominion government, and which is in these words:

ar

as

"Whereas the interest on all the bonds of the Grand Trunk Railway Company of Canada is in arrear, well as the rent of the railways leased to it, and the company has also become indebted, both in Canada and in England, on simple contract, to various persons and corporations, and several of the creditors have obtained judgment against it, and much litigation is now pending; and whereas the keeping open of the railway traffic, which is of the utmost importance to the interests of the province, is thereby imperiled, and the terms of a compromise have been provisionally settled between the different classes of creditors and the company, but in order to facilitate and give effect to such compromise the interference of the Legisture of the province is necessary."

The confirmation and legalization of "a scheme of arrangement" under such circumstances is no more than is done in bankruptcy when a "composition" agreement with the bankrupt debtor, if assented to by the required majority of creditors, is made binding on the non-assenting minority. In no just sense do such governmental relations deprive a person of his property without due process of law. They simply require each individual to so conduct himself for the general good as not unnecessarily to injure another. Bankrupt laws have been in force in England for more than three centuries, and they had their in the Roman law. The Constitution expressly empowers the Congress of the United States to establish such laws. Every member of a political community must necessarily part with some of the rights, which as an individual not affected by his relation to others, he might have retained. Such concessions make up the consideration he gives for the obligation of the body politic to protect him in life, liberty and property. Bankrupt laws, whatever may be the form they assume, are of that character.

2. That the laws of a country have no extra-territorial force is an axiom of international jurisprudence, but things done in one country under the authority of law may be of binding effect in another country. The obligor of the bonds and coupons here sued on was a corporation created for a public purpose, that is to say, to build, maintain and work a railway in Canada. It had its corporate home in Canada and was subject to

the exclusive legislative authority of the Dominion Parliament. It had no power to borrow money or incur debts except for completing, maintaining and working its railway. The bonds taken by the defendants in error showed on their face that they were part of a series amounting in the aggregate to a very large sum of money, aud that they were secured by a trust mortgage on the railway of the company, its lands, tolls, revenues, etc. In this way the defendants in error, when they brought their bonds, were in legal effect informed that they were entering into contract relations not only with a foreign corporation created for a public purpose, and carrying on its business within a foreign jurisdiction, but with the holders of other bonds of the same series, who were relying equally with themselves for their ultimate security on a mortgage of property devoted to a public use, situated entirely within the territory of a foreign government.

A corporation "must dwell in the place of its creation, and cannot migrate to another sovereignty," Bank of Augusta v. Earle, 13 Pet. 588, though it may do business in all places where its charter allows and the local laws do not forbid. Railroad Co. v. Koontz, 104 U. S. 12. But wherever it goes for business it carries its charter, as that is the law of its existence, Relf v. Rundel, 103 id. 226; and the charter is the same abroad that it is at home. Whatever disabilities are placed upon the corporation at home it retains abroad, and whatever legislative control it is subjected to at home must be recognized and submitted to by those who deal with it elsewhere. A corporation of one country may be excluded from business in another country, Paul v. Virginia, 8 Wall. 168, but if admitted, it must in the absence of legislation equivalent to making it a corporation of the latter country be taken, both by the government and those who deal with it as a creature of the law of its own country, and subject to all the legislative control and direction that may be properly exercised over it at the place of its creation. Such being the law, it follows that every person who deals with a foreign corporation impliedly subjects himself to such laws of the foreign government affecting the powers and obligations of the corporation with which he voluntarily contracts as the known and established policy of that government authorizes. To all intents and purposes, he submits his contract with the corporation to such a policy of the foreign government, and whatever is done by that government in furtherance of that policy, which binds those in like situation with himself, who are subjects of the government in respect to the operation and effect of their contracts with the corporation will necessarily bind him. He is conclusively presumed to have contracted with a view to such laws of that government, because the corporation must of necessity be controlled by them, and it has no power to contract with a view to any other laws with which they are not in entire harmony. It follows therefore that anything done at the legal home of the corporation, under the authority of such laws which discharges it from liability there, discharges it everywhere.

No better illustration of the propriety of this rule can be found than in the facts of the present case. This corporation was created in Canada to build and work a railway in that Dominion. Its principal business was to be done in Canada, and the bulk of its corporate property was permanently fixed there. All its powers to contract were derived from the Canadian government, and all the contracts it could make were such as related directly or indirectly to its business in Canada. That business affected the public interests, and the keeping of the railway open for traffic was of the utmost importance to the people of the Dominion. The corporation had become financially embarrassed, and

was and had been for a long time unable to meet its engagements in the ordinary way as they matured. There was an urgent necessity that something be done for the settlement of its affairs. In this the public, the creditors and the shareholders were all interested. A large majority of the creditors and shareholders had agreed on a plan of adjustment which would enable the company to go on with its business and thus accommodate the public, and to protect the creditors to the full extent of the available value of its corporate property. The Dominion Parliament had the legislative power to legalize the plan of adjustment as it had been agreed on by the majority of those interested, and to bind the resident minority creditors by its terms. This power was known and recognized throughout the Dominion when the corporation was created, and when all its bonds were executed and put on the market and sold. It is in accordance with and part of the policy of the English and Canadian governments in dealing with embarrassed and insolvent railway companies and in providing for their reorganization in the interest of all concerned. It takes the place in England and Canada of foreclosure sales in the United States, which in general accomplish substantially the same result with more expense and greater delay, for it rarely happens in the United States that foreclosures of railway mortgages are anything else than the machinery by which arrangements between the creditors and other parties in interest are carried into effect and a reorganization of the affairs of the corporation under a new name brought about. It is in entire harmony with the spirit of bankrupt laws, the binding force of which upon those who are subject to the jurisdiction is recognized by all civilized nations. It is not in conflict with the Constitution of the United States, which although prohibiting States from passing laws impairing the obligation of contracts, allows Congress "to establish * * uniform laws on the subject of bankruptcy throughout the United States." Unless all parties in interest wherever they reside can be bound by the arrangement which it is sought to have legalized, the scheme may fail. All home creditors can be bound. What is needed is to bind those who are abroad. Under these circumstances the true spirit of international comity requires that schemes of this character, legalized at home, should be recognized in other countries. The fact that the bonds made in Canada were payable in New York is unimportant, except in determining by what law the parties intended their contract should be governed, and every citizen of a country, other than that in which the corporation is located, may protect himself against all unjust legislation of the foreign government by refusing to deal with its corporations.

*

On the whole we are satisfied that the scheme of arrangement bound the defendants in error, and that these actions cannot be maintained. The same result was reached by the Court of Queen's Bench in the Province of Ontario when passing on a similar statute in Jones v. Canada Central R. Co., supra.

The judgments are reversed and the causes remanded with instructions to enter judgment on the facts found in favor of the railway company in each of the cases. Field, J., not being present at the argument of this case, took no part in the decision. Harlan, J., dissented.

WILLS. (1) Complainants filed a bill in equity alleging that they were heirs at law of one D., and entitled to real estate of which she died seized; that the defendant was in possession of such estate claiming title to the same under the will of D., and holding adversely to complainants; that said will was procured by the fraud and undue influence of D. The bill asked that the will of D. be cancelled and annulled as void; that defendant account for his acts as agent of D., during his life-time and since her death, and that he surrender the property mentioned to complainants. Held, that the action to recover the estate was not maintainable in equity. In Hipp v. Babin, 19 How. 271, the complainants sought by a bill in equity to recover possession of real estate to which they claimed title, as against a judicial sale, alleged to be void as against them, under which the defendants were in possession, and also for an account of rents and profits. The court refused to entertain the prayer for the recovery of the possession, on the ground that the remedy of the complainants at law was plain and adequate. It was urged that the bill would nevertheless lie for the account. To this the court replied as follows: "Nor can the court retain the bill under an impression that a court of chancery is better adapted for the adjustment of the account for rents, profits, and improvements. The rule of the court is, that when a suit for the recovery of the possession can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a possession which he can enforce at law his right to the rents and profits is also a legal right and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds have been stated to show that courts of law could not give a plain, adequate, and complete remedy. No instances exist where a person who had been successful at law has been allowed to file a bill for an account of rents and profits during the tortious possession held against him, or in which the complexity of the account has afforded a motive for the interposition of a court of chancery to decide the title and to adjust the account." This case was cited and its doctrine approved and applied in the recent case of Root v. Railway Co., 105 U. S. 189. See also Bootle v. Blundell, 19 Ves. 494. The modern rule is, "that the usual and generally more convenient practice is to enable the heir to proceed by ejectment, but that it is open to the court to direct an issue, if from any cause that course appears desirable." Boyce v. Rossborough, 6 House of Lords Cas. 1. (2) Held also, that no jurisdiction for the purpose of decreeing the invalidity of a will and annulling the probate, so far at least as it gave effect to the will as a muniment of title belongs to the Circuit Courts of the United States, as courts of equity; for courts of equity, as such, by virtue of their general authority to enforce equitable rights and remedies, do not administer relief in such cases. The question in this aspect was thoroughly considered and finally settled in Broderick's Will, 21 Wall. 503. It was elaborately considered and finally determined in England by the House of Lords in Allen v. McPherson, 1 H. of L. Cas. 191. Jurisdiction as to wills, and their probate as such, is neither included in nor excepted out of the grant of judicial power to the courts of the United States. So far as it is ex parte and merely administrative, it is not conferred, and it cannot be exercised by them at all, until in a case at law or in equity, its exercise becomes necessary to settle a controversy of which a court of the United States may take cognizance by reason of the citizenship of the parties. It has been often decided by this court that the terms "law" and "equity," as used in the Constitution, although intended to mark and fix the dis

tinction between the two systems of jurisprudence as known and practiced at the time of its adoption, do not restrict the jurisdiction conferred by it to the very rights and remedies then recognized and employed, but embrace as well not only rights newly created by statutes of the States, as in cases of actions for the loss occasioned to survivors by the death of a person caused by the wrongful act, neglect, or default of another, Railway Co. v. Whitton, 13 Wall. 287; Dennick v. Railroad Co., 103 U. S. 16, but new forms of remedies to be administered in the courts of the United States, according to the nature of the case, so as to save to suitors the right of trial by jury in cases in which they are entitled to it, according to the course and analogy of the common law. Ex parte Boyd, 105 U. S. 647; Boom Co. v. Patterson, 98 id. 406. In Hyde v. Stone, 20 How. 170-175, it was said, that "the court has repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different States cannot be impaired by the laws of the States, which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power." In Payne v. Hook, 7 Wall. 425, it was decided that the jurisdiction of the Circuit Court of the United States, in a case for equitable relief, was not excluded, because by the laws of the State the matter was within the exclusive jurisdiction of its probate courts; but as in all other cases of conflict between jurisdictions of independent and concurrent authority, that which has first acquired possession of the res, which is the subject of the litigation, is entitled to administer it. Williams v. Benedict, 8 How. 107; Bank of Tennessee v. Horn, 17 id. 160; Yonley v. Lavender, 21 Wall. 276; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 id. 454; Hook v. Payne, 14 Wall. 255. Ellis v. Davis. Opinion by Matthews, J.

[Decided Dec. 10, 1883.]

MARITIME LAW-CONFLICT OF LAW-PROCEEDINGS TO LIMIT LIABILITY SUPERSEDE OTHER ACTIONS.-(1) Proceedings in the District Court of the United States under the act of Congress of 1851 (9 Stat. 635), to limit the liability of ship-owners for loss or damage to goods, supersede all other actions and suits for the same loss or damage in the State or Federal courts, upon the matter being properly pleaded therein. (2) The effect of such proceedings in superseding other actions and suits does not depend upon the award of an injunction by the District Court, but upon the object and intrinsic character of the proceedings themselves, and the express language of the act of Congress. (3) The power of Congress to pass the act of 1851, and of this court to prescribe the rules adopted in December Term, 1871, for regulating proceedings under the act, reaffirmed. (4) Loss and damage by fire on board of a ship are within the relief of the third as well as the first, section of the act. (5) Goods transported by steamer from Providence to New York were injured by fire on board the vessel at her dock in the latter place, and suits for damage were commenced against the owners of the steamer in New York and Boston; thereupon proceedings were instituted by such owners in the District Court of the United States for the Southern District of New York, under the act of 1851, to limit their liability. Held, that said proceedings, properly pleaded and verified, superseded the actions in other courts, and that it was error to pro ceed further therein. Providence and New York Steamship Co. v. Hill Manufacturing Co. Opinion by Bradley, J.

[Decided Dec. 18, 1883.]

PUBLIC LANDS-MINING LANDS-CONSTRUCTION OF STATUTE AS TO PLACER CLAIMS-EFFECT OF DEMURRER. -A demurrer admits all facts well pleaded. Under

the Colorado Code of Civil Procedure, as at common law, facts may be pleaded according to their legal effect, without setting out the particulars that lead to it; and necessary circumstances implied by law need not be expressed in the plea. In an action by the patentee of a placer claim to recover possession of s vein or lode within its boundaries, an answer alleging that the vein or lode was known to the patentee to exist at the time of applying for the patent, and was not included in his application, well pleads the fact, which under § 2333 of the Revised Statutes, precludes him from having any right of possession of the vein or lode. Whether the words "known to exist," as used in the statute, are satisfied by actual knowledge of the applicant, or imply also a located claim for the vein or lode, the fact signified by the statute is well pleaded; for by the elementary rules of pleading, facts may be pleaded according to their legal effect, without setting forth the particulars that lead to it; and necessary circumstances implied by law need not be expressed in the plea. Bac. Ab. Pleas and Pleading, I, 7; Co. Lit. 303 b. The fact that the vein or lode was known to exist as contemplated by the statute being well pleaded although in general terms, is admitted by the demurrer. Eaton v. Southby, Willes, 131; PostmasterGeneral v. Ustick, 4 Wash. C. C. 347; Christmas v. Russell, 5 Wall. 290. In order to present the issue, the plaintiff should either have traversed the allegation, or have replied that no claim for the vein or lode had been located at the time in question. Sullivan v. Iron Silver Mining Co. Opinion by Grey, J. [Decided Dec. 17, 1883.]

MISSOURI SUPREME COURT ABSTRACT.*

CORPORATION-LEGAL CAPACITY OF STOCKHOLDER TO SUE-ACTION AGAINST DIRECTORS FOR FRAUD.—(1) The rule that the question of the plaintiff's legal capacity to sue must be raised either by demurrer or by answer, and if not so raised is to be deemed waived, does not apply alone to cases of infancy, coverture, lunacy and the like. It applies to all cases where the plaintiff, though having an interest in the subject of the suit and the relief demanded, does not show a right to appear in court and demand such relief in his own name. (2) Where the petition in a suit brought by a stockholder against certain directors of a corporation for a fraudulent breach of trust in dealing with the corporate property, failed to show either that the corporation had refused to sue or that it was under the control of the defendant, but no objection was made on that score until the case reached this court, held, that it could not then be sustained, though if made in time it would have been. Bulkley v. Big Muddy Iron Co. Opinion by Hough, C. J.

EVIDENCE-DEATH OF ONE PARTY TO A CONTRACTCOMPETENCY OF SURVIVOR AS WITNESS.-Where one of two parties jointly bound by a contract is dead, the adverse party is not thereby disqualified as a witness in an action upon the contract between himself and the survivor. Nugent v. Curran. Opinion by Winslow, Com.

HIGHWAY-CONDITIONAL DEDICATION.-(1) A dedication for a street on condition that the street shall be extended by the neighboring proprietors without expense to the dedicator, is void and cannot be accepted by the city. Whether the dedication should be charged with benefits for the extension would depend upon the charter of the city, and could not be controlled by agreement of the parties. (2) A dedication can take effect only according to its terms. Hence *To appear in 77 Missouri Reports.

where land was dedicated for a street on condition that neighboring proprietors should dedicate the same street through their lands, held, that the opening of the street, by the city by condemnation, through the other lands, did not amount to a fulfillment of the condition. City of St. Louis v. Meier. Opinion by Hough, C. J.

HIGHWAY WHERE RAILROAD TRACK LAID IN STREET LAND OWNER MUST BE COMPENSATED.-Where a municipality, being authorized by its charter, confers upon a railroad company the right to lay its track in a street, the right is to lay it on the grade of the street. If embankments are raised by the company to lay the track upon, above the grade, the company will be liable to property holders in damages for obstructing the access to their property. Cross v. St. Louis, Kansas City & Northern Railway Co. Opinion by Henry, J.

PAYMENT OF WATER LICENSE UNDER COMPULSION. -Payment of a water license under a threat of turning off the water in case of continued refusal, is payment under compulsion, and if the charge is excessive, the excess may be recovered; and that without tendering the amount really due. Westlake v. City of St.

Louis. Opinion by Sherwood, J.

PRACTICE-SUCCESSIVE ATTACHMENTS - PRIORITY BETWEEN.-Successive writs of attachment in the hands of different officers may be levied on the same goods, and in the distribution of the proceeds will be entitled to priority in the order in which the levies are made. The possession of the officer making the first levy is not to be disturbed, but the subsequent levies are to be made by notifying him and by making return of the levies upon the respective writs. Every levy so made will hold the surplus of the proceeds left after satisfying all older levies. Metzner v. Graham, 57 Mo. 405; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 id. 450; Tomlinson v. Collins, 20 Conn. 364; Dunlop v. Insurance Co., 74 N. Y. 145; S. C., 30 Am. Rep. 283; Bruce v. Vogel, 38 Mo. 100; Drake on Attachment, $263, 265, 267, 269. Patterson v. Stephenson. Opinion by Philips, Com.

SCHOOL BOARD-POWER TO TAKE SECURITY.— A school board may lawfully take from a builder contracting for the erection of a school-house for the board, a bond for the security of those who may do labor or furnish materials upon the building, and in case of failure of the contractor to pay for any labor done or material furnished upon the building, may enforce the same by action. St. Louis School Board v. Wood. Opinion by Martin, Com.

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
MAY 1883.

FORFEITURE

DEED PROVIDING FOR, CONSTRUED AGAINST GRANTOR-CONDITION OF OCCUPANCY FOR SCHOOL-A deed of land to a school district contained this condition: "The said land to be held by said district for the purpose of building a school-house thereon, and to be improved for the benefit of schools and for no other use; and when said district shall cease to improve the said land for the purposes aforesaid for two years in succession, then the said land shall revert back to me, the grantor." Held, that the failure to keep a school on the land for two years in succession did not work a forfeiture entitling the heirs of the grantor to re-enter. It is well settled that such a condition, when relied upon to work a forfeiture, is to be construed with great strictness. Merrifield v. Cobly, 4 Cush. 178; Hadley v. Hadley

Manuf. Co., 4 Gray, 140. Where a grantor in such case uses language which is susceptible of two constructions, that construction ought to be adopted which is most strongly against him. Crane v. Inhabitants of Hyde Park. Opinion by Morton, C. J.

MASTER AND SERVANT - DUTY OF RAILROAD COMPANY TO EMPLOYEE AS TO CARS OF ANOTHER COMPANYINSPECTION-FELLOW SERVANTS.-Where a railroad company is bound as a common carrier to receive the cars of other railroad companies upon its road and draw them, while the obligation of drawing cars over its road would not extend to such as were in an unsafe condition; but as to cars so received, the company's duty is not that of furnishing proper instrumentalities for service, but of inspection, and this duty is performed by the employment of sufficient, competent and suitable inspectors, who are to act under proper superintendence, rules and instructions; and however it may be as to other cars, the inspectors must be deemed to be engaged in a common employment with the brakemen as to such cars while in transit and until ready to be inspected for a new service. And the company will not be liable for an injury to a brakeman from a defect in such a care which had been properly inspected. Mackin v. Boston & Albany Railroad Co. Opinion by C. Allen, J.

SUNDAY-ONE INJURED WHILE WORKING ON CANNOT RECOVER FOR INJURY.-Plaintiff, a conductor on a horse car, while standing on the outside step of the car collecting fares, was struck by the horse car of defendant, which was passing along a track parallel to the track on which the car of plaintiff was passing, and injured. The accident took place on Sunday. Held, that plaintiff was violating the statutes in relation to Sunday work at the time, which violation contributed to his injury, and he was not entitled to recover therefore. It has been uniformly held in numerous decisious from Bosworth v. Swansey, 10 Met. 363, to Davis v. Somerville, 128 Mass. 594, that a person travelling on the Lord's day in violation of law cannot recover in an action against a city or town for injuries sustained from a defect in a highway. This is because the act of travelling, which is the act prohibited, necessarily contributes to cause the injury. Stanton v. Metropolitan R. Co., 14 Allen, 485; Smith v. Boston & Maine R. Co., 120 Mass. 490; Lyons v. Desotelle, 124 id. 387; Bucher v. Fitchburg R. Co., 131 id. 156. The acts of the plaintiff in laboring necessarily contributed to his injury. The place he was occupying on the car and the attitude he assumed at the time in collecting fares especially exposed him to the injury he received, and contributed to it. The case of McGrath v. Merwin, 112 Mass. 467, is decisive. Day v. Highland Street Railroad Co. Opinion by Colburn, J.

WILL-CONSTRUCTION OF TIME WHEN WORD (6 SURVIVING RELATES TO.-A testator gave certain property in trust during life of two persons named, and directed that after the death of the survivor of them the trustee should pay over "all the residue of said trust fund in equal portions to my surviving nephews and nieces." Held, that the word "surviving" related to a future time when the trust fund was to be distributed and not to the time of the testator's death. Hulbert v. Emerson, 16 Mass. 241; Olney v. Hull, 21 Pick. 311; Blanchard v. Blanchard, 1 Allen, 223. Denny v. Kettell. Opinion by C. Allen, J.

MINNESOTA SUPREME COURT ABSTRACT.

ADVERSE POSSESSION-ERECTING BUILDING BY MISTAKE ON NEIGHBOR'S LAND IS-SEISIN AND POSSESSION.-Where the owner of adjoining lands by. mistake projected one end of a building several feet over

land of his neighbor and occupied the building, held in an action by the neighbor against him, that occupation was adverse, and that defendant was seised and possessed of the premises, according to the meaning of the Statute of Limitation. The title of the owner of a freehold estate is described by the terms "seisin," or "seisin in fee;" yet in a proper legal sense the holder of the legal title is not seised until he is fully invested with the possession, actual or constructive. When there is no adverse possession the title draws to it the possession. There can be but one actual seisin, and this necessarily includes possession; and hence an actual possession in hostility to the true owner works a disseisin, and if the disseisor is suffered to remain continuously in possession for the statutory period, the remedy of the former is extinguished. Melvin v. Proprietors, etc., 5 Metc. 33; Fowle v. Ayer, 8 N. H. 57. The actual, exclusive possession of the defendant must to the extent of the occupancy be deemed adverse, whether the original entry and possession thereunder were by mistake or not. Crary v. Goodman, 22 N. Y. 173; Swettenham v. Leary, 18 Hun, 284; Cole v. Parker, 70 Mo. 372; Melvin v. Proprietors, 5 Metc. 33; Enfield v. Day, 7 N. H. 457; French v. Pearce, 8 Coun. 439. Seymour v. Carli. Opinion by Vanderburgh, J.

[Decided July 18, 1883.]

MORTGAGE-DEED ABSOLUTE IN FORM AS-TO SECURE FUTURE ADVANCES.-(1) Parol evidence is admissible to show that a deed absolute in form was intended as a mortgage. Any conveyance intended to be a security for the payment of money, or the performance of some duty, is a mortgage. 2 Washb. Real Prop. (4th ed.) 42. And in order to carry out the actual intention in such case, an enlarged view of the facts constituting the transaction will be taken by the court.

Steel v. Steel, 4 Allen, 420; Lanfair v. Lanfair, 18 Pick. 304; Wilcox v. Bates, 26 Wis. 465. (2) As between the parties, at least, the doctrine is well established that a mortgage may be made to secure future optional advances, or to secure the mortgagee in advance for an optional liability as indorser or security. Robinson v. Williams, 22 N. Y. 381; Ackerman v. Hunsicker, 85 id. 47; Babcock v. Bridge, 29 Barb. 427: Jones Mortg., §§ 369, 372, etc.; Boswell v. Goodwin, 31 Conn. 74; McDaniels v. Colvin, 16 Vt. 300. "Mortgages may as well be given to secure future advances and contingent debts as those which already exist, and are certain and due. The only question that properly arises on such cases is the bona fides of the transaction." Conrad v. Ins. Co., 1 Pet. 448. Madigan v. Mead. Opinion by Vanderburgh, J. [Decided Aug. 13, 1883.]

BY LOCOMOTIVE JOINT

NEGLIGENCE-FIRE SET WRONG-DOERS-PROXIMATE CAUSE.-Sparks escaping from au engine set fire to a pile of corn stalks near the railroad track belonging to one N. The fire was communicated from thence to a barn standing near, and thence to the barn of plaintiff which was destroyed. Held, that the negligence of N. in leaving combustible material exposed near the railroad was not a defense to an action against the railroad company for loss, and that the injury was not too remote. Either one of the wrong-doers was responsible, and the concurrent negligence of the other would be no defense. McMahon v. Davidson, 12 Miun. 357 (Gil. 232); Eaton v. Boston & L. R. Co., 11 Allen, 500; Barrett v. Third Ave. R. Co., 45 N. Y. 628. The injury was not, as a matter of law, too remote to justify a recovery. The result was such as may well be considered might have been reasonably anticipated. Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469; Pennsylvania R. Co. v. Hope, 80 Penn. St. 373; Kellogg v. Chicago & N. W. R. Co., 26

Wis. 223. Johnson v. Chicago, Milwaukee & St. Paul Railway Co. Opinion by Dickinson, J. [Decided July 18, 1883.]

ILLINOIS SUPREME COURT ABSTRACT.

LEASE-NEED NOT BE SIGNED BY LESSEE TO BIND HIM. Where lease recites that the lessee is to pay a certain sum as rent for the premises, his acceptance of the lease makes him a direct obligor or promisor to pay the rent, although he has not signed or executed the instrument. Such an instrument is not a unilateral contract. Kershaw v. Kershaw, 102 Ill. 307; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Schmucker v. Sibert, 18 Kan. 104. "An agreement contained in a deed poll was enforced, notwithstanding an objection which was taken from the unilateral nature of the instrument." Fry Sp. P.. § 298; Otway v. Braithwaite, 1 Finch, 405; Butler v. Powis, 2 Coll. C. C. 156. See also Old Colony R. Co. v. Evans, 6 Gray, 25. The promise to pay rent was a sufficiently valuable consideration for the promise to lease. Chitty Cont., 11th Am. ed. 50, note d. McFarlane v. Williams. Opinion by Scholfield, J.

MASTER AND SERVANT-HAZARDOUS EMPLOYMENT— KNOWLEDGE OF EMPLOYEES-PROMISE BY MASTER TO

REPAIR.—If an employee discovers that the service has become more hazardous than usual, or than he had anticipated by reason of defective machinery, the retaining of unfaithful fellow servants, or from any other cause, the general rule is, he must quit the service or assume the extra risks to which he is exposed. The law imposes no obligation on the master to take more care of the servant than the latter is willing to observe for his own personal safety. Indianapolis, B. and W. R. Co. v. Flanagan, 77 Ill. 365; Pennsylvania Co. v. Lynch, 90 id. 334; Columbus, C. and I. C. R. Co. v. Troesch, 68 id. 545. This general rule however has its exceptions. When the master, on being notified by the servant of defects that render the service he is engaged to perform more hazardous and the master expressly promises to make the needed repairs, the servant may continue in the employment a reasonable time to permit the performance of the promise without being guilty of negligence, and if any injury results therefrom he may recover, unless he should continue in the employment when the danger is so imminent that no prudent man would undertake to perform the service. The promise of the master, in such case, relieves the servant from the charge of negligence by continuing in the service. Patterson v. Pittsburg and C. R. Co., 76 Penn. St. 389; Courad v. Vulcan Iron Works, 62 Mo. 35; Hough v. Railway Co., 100 U. S. 213; Holmes v. Clark, 7 H. & N. 348; Clark v. Holmes, id. 937. Missouri Furnace Co. v. Abend. Opinion by Scott, J.

MUNICIPAL CORPORATION-LIABILITY FOR INJURY FROM DEFECT IN STREET.-A city had notice of a hole in a sidewalk near a railroad crossing and neglected to repair the same within a reasonable time. A person in passing over such walk, exercising due care, stepped into the hole, whereby he was unavoidably thrown upon the railway track before an approaching train of cars, and in attempting to get up his clothes caught upon a spike or nail in the sidewalk, and he was struck by the train before he was able to extricate himself, and killed. Held, the city was liable in damages under the statute, to the personal representatives of the deceased, for causing his death. City of Chicago v. Schmidt. Opinion by Mulkey, J.