S. & N. Ind. R. Co. v. McDonough, 21 Mich. 189; Lake Shore & Mich. So. R. Co. v. Perkins, 25 id. 329. There would certainly seem to be no good reason why a carrier might not by express contract exempt itself from damage caused wholly, or perhaps in part, by the instincts, habits, propensities, wants, necessities, vices, or locomotion of such animals. As to injury from such causes the common-law liability and obligation do not seem to attach; certainly not with the same rigidity as they do to ordinary inanimate freight. Thus in a late case in Minnesota it is held that "a railroad corporation which undertakes to transport live-stock for hire for such persons as chose to employ it, assumes the relation of a common carrier, with such modifications of the common-law liability of carriers as arise from the nature of their animals and their capacity for inflicting injury upon themselves and upon each other." Moulton v. St. Paul, M. & M. Ry, Co., 12 Am. & Eng. Ry. Cas. 13. To these things may well be added other things incident to live-stock. As to the extent to which a carrier may limit its liability for injury caused by its own negligence see the valuable notes to Holsapple v. Rome, Wat. & Ogd. R. Co', 3 Am. & Eng. Ry. Cas. 487, and Harrison v. Missouri Pac. Ry. Co., 7 id. 382; Peek v. North Staffordshire Ry. Co., 10 H. L. 473; Shir. Lead. Cas., No. 23, p. 51. Richardson v. Chicago, etc., R. Co. Opinion by Cassoday, J.

[Decided Oct. 18, 1884.]

EVIDENCE-PAROL TO SHOW LEASE IN FACT MORTGAGE-MORTGAGE ON FUTURE CROP.-(1) A written contract, by the terms of which M. leases a farm to L. for one year, surrenders possession at once, and agrees to do all the work in raising a crop thereon, and to deliver the whole of such crop to L., the latter agreeing to furnish all the groceries needed by M., to furnish the seed, to sign a promissory note of even date with the contract for the sole benefit of M., and upon delivery of the crop to give M. a receipt for $300 of present indebtedness of M. to L., is upon its face a lease, but may be shown by parol or other competent evidence to have been intended merely as a mortgage of the crop. It presents the well-settled proposition that a bill of sale of chattels, or an absolute deed or lease of real estate, may be shown to have been given as a mortgage security by parol, or other competent evidence; and where the evidence satisfactorily shows that fact, then the conveyance, whatever its nature or form, will be treated as a mortgage; and the rights of the parties under such contract will be such, and only such, as they would have been had the writing on its face created the relation of mortgagor and mortgagee. The following are a few of the cases in this court which establish the proposition above stated: Plato v. Roe, 14 Wis. 453; Sweet v. Mitchell, 15 id. 641; Kent v. Lasley, 24 id. 654; Kent v. Agard, id. 378; Wilcox v. Bates, 26 id. 465; Dobbs v. Kellogg, 53 id. 448; S. C., 10 N. W. Rep. 623; Brinkman v. Jones, 44 Wis. 498. (2) A mortgage of a crop thereafter to be raised is void as against a subsequent purchaser from the mortgagor, unless before such purchase the mortgagee took actual possession of the property. If the transaction between M. and L. was shown to be a mortgage security in fact then such mortgage would be absolutely void as to a subsequent mortgagee or vendee of M., for the reason that the property intended to be covered by the mortgage was not in existence when the mortgage security was given, unless there was evidence given showing that the respondent had taken the actual possession of the property intended to be mortgaged after it came into existence, and before it was mortgaged or sold to the appellant. Comstock v. Scales, 7 Wis. 159; Chynoweth v. Tenney, 10 id. 397-407; Farmers' L. & T. Co. v. Commercial Bank, 11id. 207; Single v. Phelps, 20 id.

399; Mowry v. White, 21 id. 417; Hunter v. Bosworth, 43 id. 583; Farmers' L. & T. Co. v. Fisher, 17 id. 114; Farmers' L. &. T. Co. v. Cary, 13 id. 110. Lawson v. Moffatt. Opinion by Taylor, J. [Decided Oct. 14, 1884.]

MUNICIPAL CORPORATION-LEGISLATURE MAY DIVIDE-APPORTIONMENT OF LIABILITIES-SERVICES BY ATTORNEY.-A county board exercising legislative powers in the vacation of a town may apportion the property and charge the liabilities of such town to the towns to which its territory is annexed in such manner and proportion as may seem just. The doctrine that in the vacation of a town the Legislature has the power to apportion the property and charge the liabilities of the vacated town upon the town or towns to which the territory of the vacated town is annexed,in such manner and proportion as may seem just to the Legislature, seems to be well established by authority. Thompson v. Abbott, 61 Mo. 176, 177; Borough of Dunmore's Appeal, 52 Penn. St. 374; City of Olney v. Harvey, 50 Ill. 453; Morgan v. City and Town of Beloit, 7 Wall. 613-617. The general power of the Legislature to apportion the property and the liabilities of a vacated town among the towns to which its territory is attached, is recognized by this court in the case of Town of Depere v. Town of Bellevue, 31 Wis. 120-125; Goodhue v. Beloit, 21 id. 636; and Supervisors of La Pointe v. O'Malley, 47 id. 332; S. C., 2 N. W. Rep. 632; Butternut v. O'Malley, 50 Wis. 333; S. C., 7 N. W. Rep. 248. This court held in La Pointe v. O'Malley, supra, that the county board of supervisors had all the powers of the Legislature in regard to the vacation of towns and the annexation of the territory to other towns, and in such case could distribute the property of the vacated town to the towns to which the territory of the vacated town was attached, in such manner as the board deemed best for the public interest. An attorney rendered services to the town of L. in prosecuting an action against the town of A. under a contract providing that if $10,000 was recovered, or if the action was discontinued by the town he should receive $5,000. While that action was pending on an appeal, the county board vacated the town of L. and annexed a part of its territory to said town of A., making the latter the successor of the town of L. so far as said action was concerned. After the decision of the appeal which established the right of the town of L. to recover $10,000, the town of A. obtained an order dismissing the action. Held, that said attorney might recover for his services from the town of A. The ordinance vacating the town of L. provided that the amount justly due for such services should be determined by a referee named, but the town of A. refused to consent to its being so determined, when the attorney proposed to submit the question to the referee. Held, that the attorney might recover the amount due Knight v. Town of Ashland. Opinion by Taylor, J. under the original contract with the town of L. [See 11 Am. Rep. 602; 21 Eng. Rep. 268.] [Decided Oct. 14, 1884.]

UNITED STATES SUPREME COURT ABSTRACT.*

WILL-EXECUTORY DEVISE-DYING WITHOUT ISSUE. -A testator devised to E., daughter of his son N., a parcel of land in fee, provided that should E. die in her minority, and without lawful issue then living, the land should revert and become a part of the residue of his estate; devised other land to his son W. for life, and to J., son of W., in fee, with a like proviso; *Appearing in 5 Supreme Court Reporter.

gave to his widow certain real and personal property for life; and devised the residue of his estate to his executors, and directed that the income be suffered to accumulate until his eldest grandchild then living should attain the age of 21 years, or until the decease of his son W., whichever should first occur, and then the whole to be equally divided among all his grandchildren then living, and in making such division the amount of the devises to J. and to E., according to an estimate of their present value, to be made by three appraisers, to be charged to them as part of their respective shares. Held, that the estate of E. in the land specifically devised to her was divested by her dying under age and without issue, though after the deaths of testator and of W. When a devise is made to one person in fee, and "in case of his death" to another in fee, the absurdity of speaking of the one event, which is sure to occur to all living, as uncertain and contingent, has led the courts to interpret the devise over as referring only to death in the testator's life-time. 2 Jarm. Wills, ch. 48; Briggs v. Shaw, 9 Allen, 516; Lord Cairns in O'Mahoney v. Burdett, L. R., 7 H. L. 388, 395. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated at any time, whether before or after the death of the testator. O'Mahoney v. Burdett, supra; 2 Jarm. Wills, ch. 49. We find nothing in this will to take the case out of the general rule, or to support the argument of the plaintiff in error that the testator intended that the devise over should not take effect if Eliza Ann survived him, or at least, if she survived his son William. The phrase in the specific devise that in the prescribed contingency the land shall "revert and become part of the residue," is quite as consistent with the happening of the contingency after the estate has once vested in the devisee, as with its happening in the testator's life-time, and before any estate has vested in her. Britton v. Thornton. Opinion by Gray, J.

[Decided Dec. 15, 1884.]

CONSTITUTIONAL LAW-ACT OF AUG. 3, 1882-REGULATION OF COMMERCE-CHINESE IMMIGRATION.-The act of Congress of Aug. 3, 1882, to regulate immigration," which imposes upon the owners of steam or sailing vessels who shall bring passengers from a foreign port into a port of the United States a duty of fifty cents for every such passenger not a citizen of this country, is a valid exercise of the power to regulate commerce with foreign nations. We are clearly of opinion that in the exercise of its power to regulate immigration, and in the very act of exercising that power, it was competent for Congress to impose this contribution on the ship-owner engaged in that business. Another objection to the validity of this act of Congress is that it violates provisions contained in numerous treaties of our government with friendly nations. And several of the articles of these treaties are annexed to the careful brief of counsel. We are not satisfied that this act of Congress violates any of these treaties on any just construction of them. Though laws similar to this have long been enforced by the State of New York in the great metropolis of foreign trade, where four-fifths of these passengers have been landed, no complaint has been made by any foreign nation to ours of the violation of treaty obligations by the enforcement of those laws. But we do not place the defense of the act of Congress against this objection upon that suggestion. We are of opinion, that so far as the provisions in that act may be found to be in

conflict with any treaty with a foreign nation, they must prevail in all the judicial courts of this country. We had supposed that the question here raised was set at rest in this court by the decision in the case of the Cherokee Tobacco, 11 Wall. 616. It is true, as suggested by counsel, that three judges of the court did not sit in the case, and two others dissented. But six judges took part in the decision, and the two who dissented placed that dissent upon the ground that Congress did not intend that the tax on tobacco should extend to the Cherokee tribe. They referred to the existence of the treaty which would be violated if the statute was so construed as persuasive against such a construction, but they nowhere intimated that if the statute was correctly construed by the court, it was void because it conflicted with the treaty, which they would have done if they had held that view. On the point now in controversy it was therefore the opinion of all the judges who heard the case. See U. S. v. Mo Bratney, 104 U. S. 621-623. The precise question involved here, namely, a supposed conflict between an act of Congress imposing a customs duty, and a treaty with Russia on that subject, in force when the act was passed, came before the Circuit Court for the District of Massachusetts in 1855. It received the consideration of that eminent jurist, Mr. Justice Curtis, of this court, who in a very learned opinion exhausted the sources of argument on the subject, holding that if there were such conflict the act of Congress must prevail in a judicial forum. Taylor v. Morton, 2 Curt. C. C. 454. And Mr. Justice Field, in a very recent case in the Ninth Circuit, that of In re Ah Lung, on a writ of habeas corpus, has delivered an opinion sustaining the same doctrine in reference to a statute regulating the immigration of Chinamen into this country. 18 Fed. Rep. 28. In the Clinton Bridge case, Woolw. 156, the writer of this opinion expressed the same views as did Judge Woodruff, on full consideration, in Ropes v. Clinch, 8 Blatchf. 304, and Judge Wallace, in the same Circuit, in Bartram v. Robertson, 15 Fed. Rep. 212. It it very difficult to understand how any different doc trine can be sustained. A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party choses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do, and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that "this Constitution and the laws made in pursuance thereof, and all treaties made, or which shall be made under authority of the United States, shall be the supreme law of the land." A treaty then is a law of the land as an act of Congress

is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. But even in this aspect of the

emption from taxation is a personal privilege of the very corporation specifically referred to, and ceases with it, unless the express and clear intention of the law requires the exemption to pass as a continuing franchise to a successor. Oliver v. Memphis, etc., 30 Ark. 128. The franchise of becoming and being a corporation, in its nature, is incommunicable by the act of the parties, and incapable of passing by assignment. "The franchise to be a corporation," said Hoar, J., in Com. v. Smith, 10 Allen, 448-455,"clearly cannot be transferred by any corporate body of its own will. Such a franchise is not, in its own nature, transmissible." In Hall v. Sullivan R. Co., 21 L. R. 138; 2 Red. Am. R. Cas. 621, 1 Brunner Col. Cas. 613, Mr. Justice Curtis said: "The franchise to be a corporation is therefore not a subject of sale and transfer, unless the law, by some positive provision, has made it so, and pointed out the modes in which such sale and transfer may be effected." See also State v. Sherman, 22 Ohio St. 411-428. Railroad Co. v. Georgia, 98 U. S. 359. Memphis, etc., v. Berry. Opinion by Matthews, J. [Decided Dec. 22, 1884.]

FRAUD-PARTY GUILTY OF, NOT ENTITLED TO RELIEF. The keeping of his mother's railroad bonds by a son under suspicious circumstances, which warrant the inference of fraudulent intent on the part of both and the father, will defeat the efforts of the wife to regain by action such bonds from a third party with whom they have been hypothecated by a brother of the husband who occupies an office with him and the son. Matthews v. Warner. Opinion by Miller, J. [Decided Dec. 22, 1884.]

EMINENT DOMAIN COMPENSATION COURT OF

CLAIMS

WAIVER OF FORMAL PROCEEDINGS.

(1) Where property to which the United States asserts no title is taken by their officers or agents, pursuant to an act of Congress, as private property, for the public use, the government is under an implied obligation to make just compensation to the owner. (2) Such an implication being consistent with the constitutional duty of the government, as well as with common justice, the owner's claim for compensation is one arising out of implied contract, within the meaning of the statute defining the jurisdiction of the Court of Claims, although there have been no formal proceedings for the condemnation of the property to public use. (3) The owner may waive any objection he might be entitled to make, based upon the want of such formal proceedings, and electing to regard the action of the government as a taking under its sovereign right of eminent domain, may demand just compensation for the property. Kohl v. United States, 91 U. S. 374; Langford v. U. S., 101 id. 341, distinguished. United States v. Great Falls Manufacturing Company. Opinion by Harlan, J.

[Decided Dec. 22, 1884.]

CRIMINAL LAW.

EVIDENCE-LETTERS-EPILEPTIC FITS ACCOUNTING FOR CONTRADICTORY STATEMENTS.-(1) On the trial of J. G. on a charge of larceny, the State offered in evidence a letter purporting to have been written by the accused. As a foundation for its introduction, the State proved that it had been received by the person to whom it was addressed, from M. K., who was proven to be engaged to the accused; and then called M. K. as a witness, and asked her the question, "who wrote that letter?" to which she replied, "J. G., I told you that before." The witness being then asked on cross-examination whether she knew the letter was in G.'s hand-writing, replied, "It looks like G.'s band

writing, but I would not swear to his hand-writing unless I saw him write." The cross-examination was not pressed further, but upon the said answer of the witness the prisoner objected to the admissibility of the letter. Held, that the letter was admissible in evidence. (2) The prisoner offered to prove by his mother, and other witnesses, that for about three years prior to the alleged offense, and since he had been in jail, he had been subject to fits, which he proffered to show were epileptic, and that they had weakened his mind, and which would tend to account for contradictory statements made by him about the possession of the money when he was arrested; but upon objection the court below rejected the evidence, unless the prisoner would assure the court that he would follow it up by proof to show that such fits rendered him irresponsible for his acts. This assurance the prisoner declined to give, and the proffered evidence was consequently rejected. On appeal it was held that the evidence was properly rejected, being well calculated to mislead the jury. Maryland Ct. of Appeals, Apr., 1884. Gross v. State. Opinion by Alvey, C. J. (62 Md.) [(1) See 28 Eng. Rep. 633.]

EVIDENCE-DYING DECLARATIONS.-(1) To be admissible in evidence, dying declarations must relate to the identification of the prisoner or the deceased, or to the act of killing or to the circumstances attending the act and forming part of the res gesta. Hence where the declaration was: "I believed he (defendant) was going after his pistol when he went into the house*** I had seen him at the house with a pistol before," held, that this ought to have been excluded. State v. Draper, 65 Mo. 335; Collins v. Com., 12 Bush, 271; State v. Wood, 53 Vt. 560; Whart. Crim. Ev., § 278; 1 Greenl. Ev. (14th ed.) 210, note; id., § 159. (2) Dying declarations are in the nature secondary evidence, and are so regarded in the law. It is therefore error to instruct a jury to give them the same weight they would if the declarant had testified before them. State v. McCanon, 51 Mo. 160; Walker v. State, 37 Tex. 365; Lambeth v. State, 23 Miss. 358; Whart. Crim. Ev., § 276; Roscoe Crim. Ev. 36; 1 Greenl. Ev., § 162; disapproving; id. 157; and State v. Green, 13 Mo. 382. State v. Vansant. Opinion by Hough, C. J. (80 Mo.)

MURDER EVIDENCE PREVIOUS ASSAULTS.-On the trial of a husband for the murder of his wife by acts of personal violence, evidence of previous ill treatment of or assaults upon his wife by the accused, is admissible to show the state of feeling between them. In State v. Watkins, 9 Coun. 47, the public prosecutor, on the trial of an indictment for the murder of defendant's wife, in the absence of direct evidence of the alleged murder, offered, with other presumptive evidence, testimony to prove that for some months before and down to the time of the alleged murder an adulterous intercourse subsisted between the defendant and Mrs. B. It was held that such testimony was admissible. Chief Justice Hos mer, in the opinion, says: "It is a prominent fact in the case that the deceased was the wife of the pris oner. The presumption thence arising, that she was not killed by her husband, or that it was not of malice aforethought, was powerful. The relation of husband and wife clearly implies a strong partiality on the part of the husband toward his wife, and the most ardent desire to protect her and to render her happy. As a man will consult his own preservation and pursue his own interest, so as a general truth, he will equally regard the protection and interest of his wife." Page 52. There are other authorities which sustain the admission of such testimony for the purpose of showing the state of feeling on the part of the defendant toward the deceased. People v. Bemis, 16