THE ALBANY LAW JOURNAL. WALLACE, J. This suit was brought to recover damages for personal injuries sustained by the plaintiff, a collision between a locomotive of the Lehigh Valley Railroad Company, upon which he was a fireman, and a train of cars belonging to the defendant. The collision took place at a point where the roads of the two railway companies intersect and cross each other, known as the "Bound Book Crossing." A signal station was maintained at this crossing by the Lehigh Valley Company in charge of a signal-man, who was selected by that corporation, and was in its employ. By the system of signals which had been adopted, and were in force at the time of the collision, a red signal indicating danger was constantly shown to both roads, until an approaching train at the distance of a third of a mile from the crossing asked for permission to pass by a signal from the engine. If in answer to the engine's signal, a white signal was displayed at the station, the engineer was at liberty to proceed with his train. If on the other hand, the red signal remained displayed, it was his duty to stop his train. The plaintiff in discharge of his duty as a fireman in the employ of the Lehigh Valley Company, was upon an engine of that company, in charge of an engineer carrying a superior officer of the company upon a special errand; and the engine was proceeding to cross the Bound Book Crossing, when the collision occurred. The evidence authorized the jury to find that the safety signal was displayed to the plaintiff's engine in response to the signal of the engineer for permission to cross, and that the danger signal was displayed to the engineer of the defendant's train in response to The evidence also his signal for permission to cross. established that the engineer of the plaintiff's engine was guilty of negligence in attempting to cross, notwithstanding he had received permission to do so by the proper signal; that he saw defendant's train was making for the crossing, either in disregard of the proper signal to the engineer of that train, or under a misapprehension; that his attention was called to this circumstance by Mr. Pickle; that he had reason to suppose a collision would take place if proceeded, yet having ample time to stop his engine and avoid collision after notice of danger, did not do so. The jury were instructed that if they found that the collision ensued by reason of the negligence of the engineer of the defendant, concurring with the negligence of the engineer of the Lehigh Valley Company, the plaintiff was entitled to recover, provided there was no concurring negligence upon his part. They were instructed, that although he was not in control of the engine upon which he was employed, it was his duty to be observant, so far as practicable of the situation, and to do what he could to promote the safety of the enterprise in which he was engaged; but that it did not follow that he was negligent because he did not attempt to stop the engine himself or insist upon the engineer's doing so. It was left to the jury to determine, as a question of fact, whether under the circumstances his conduct amounted to a concurrence in the conduct of the engineer; and they were instructed, if he did thus concur, he was not entitled to recover. The defendant requested the court to instruct the jury that the The instructions given were certainly as favorable the movements of the locomotive. If he was not The defendant relies upon the English cases of In Thorogood v. Bryan it was held that the plaintiff, an ordinary passenger in an omnibus, injured by the joint negligence of the driver of the omnibus and of the defendant, must be taken to be identified with the driver of the omnibus; and if want of care on the part of the driver of the omnibus conduced to the accident, the plaintiff could not recover against the defendant. This ruling has been generally criticised, and its correctness repudiated by text writers of authority, and is in plain conflict with the great preponderance of judicial opinion in this country. The case of Armstrong v. Lancashire & Y. R. Co., was decided upon the authority of Thorogood v. Bryan. In Robinson v. New York Cent. & H. R. R. Co., 66 N. Y. 11, it was held that a person who accepts an invitation to ride with another competent to control the vehicle is not chargeable with his negligence; and contributory negligence upon his part is no defense in an action against a third party for injuries resulting from a collision; and that if the plaintiff was free from negligence, although the driver might have been guilty of negligence which contributed to the injury, the action could be maintained. Church, C. J., in delivering the opinion, said: "It is no excuse for the negligence of the defendant that another's negligence contributed to the injury for whose acts the plaintiff was not responsible." In Dyer v. Erie R. Co., 71 N. Y. 228, it was held that where one travels in a vehicle at the invitation of the owner or driver over whom he has no control, no relationship of principal and agent exists between them, and he is not responsible for the negligence of the driver, and contributory negligence on the part of the driver is not imputable to the passenger and is no bar to a recovery against a negligent third party for injuries resulting from a collision. The reasoning in both of these cases proceeds upon the ground that the negligence of one person is not to be imputed to another merely because both of them are engaged in a common enterprise, when the latter It is otherwise has no control in fact, or by reason of superior authority, over the conduct of the former. where they are engaged in an enterprise, the character of which presupposes conjoint management, and therefore mutual responsibility for each other's acts, as in Beck v. East River Ferry Co., 6 Rob. 82. It is not apparent how the circumstance that the persons engaged in the common enterprise are fellow servants can qualify the application of the principle to be deduced from these cases. That circumstance is important only as it bears upon the question of the employers' responsibility to one servant for the negligence of a fellow-servant. As between themselves, the servants of a common employer are liable to each other for negligence precisely as though the relation of fellow-servant did not exist. The cases in Massachusetts holding otherwise are generally disapproved by the commentators. Shearm. & R. Neg., § 112, Whart. Neg., § 245; 2 Thomp. Neg. 1062; Add. Torts, 145. See also Hinds v. Harbou, 58 Ind. 121. The exemption of the employer from liability to a servant for the negligence of a fellow-servant rests upon the implied undertaking of the servant to assume the risks necessarily incident to the service in which he engages, including the risks of the negligence of his fellow-servant in discharging duties which the employer cannot be expected to discharge personaliy. There is no reason why a third person, with whom there is no such implied undertaking, should be entitled to avail himself, as a defense to his own negligence, of the contributory negligence of a fellow-servant of the injured party any more than of the contributory negligence of a stranger. As to him, personal negligence on the part of the injured party would seem to be the only just criterion of contributory negligence. In the case of Paulmier v. Erie R. Co., 34 N. J. Law, 151, it was held that a servant, injured by the combined negligence of his master and of a fellow-servant, could recover against the master upon the ground that the master was one of two joint wrong-doers, and as such responsible to the servant. It would follow as a corollary that it does not lie even with an employer to insist that the contributory negligence of one servant can be imputed to a fellow-servant as a defense to the employer's negligence. Certainly a stranger cannot occupy any better position than the employer. There are two adjudications in this State opposed to the doctrine of Armstrong v. Lancashire & Y. R. Co.; Perry v. Lansing, 17 Hun, 34; Busch v. Buffalo Creek R. Co., 29 id. 112. In both of these cases it was held that a defendant whose negligence contributed to the injury of an employee could not escape liability because the negligence of a co-employee of the plaintiff also concurred. This is believed to be sound law. The motion for a new trial is denied. [See notes, 28 Am. Rep. 565; 38 id. 514. Also 41 id. 178; 38 id. 558; 44 id. 791; 46 id. 230.-ED.] UNITED STATES SUPREME COURT ABSTRACT.* INFRINGEMENT PATENT-DESIGN FOR CARPETS DAMAGES.-In a suit in equity for the infringement of a patent for a design for carpets, where no profits were found to have been made by the defendant, the Circuit Court allowed to the plaintiff, as damages, in respect to the yards of infringing carpets made and sold by the defendant, the sum per yard which was the profit of the plaintiff in making and selling carpets with the patented design, there being no evidence as to the value imparted to the carpet by the design. Held, that such award of damages was improper, and that only nominal damages should have been allowed. There is but one safe rule, to require the actual damages or profits to be established by trustworthy legal proof. It is not necessary to cite at length from the cases decided by this court on the subject. It is sufficient to refer to them as follows: Livingston v. Woodworth, 15 How. 546; Seymour v. McCormick, 16 id. 480; Mayor v. Ransom, 23 id. 487; Mowry v. Whit*Appearing in 5 Sup. Ct. Rep. ney,14 Wall 620; Philp v.Nock, 17 id. 460; Littlefield v. Perry, 21 id. 205; Birdsall v. Coolidge, 93 U. S. 64; Cawood Patent, 94 id. 695; Blake v. Robertson, id. 728; Garretson v. Clark, 111 id. 120; S. C., 4 Sup. Ct. Rep. 291; Black v. Thorne, 111 U. S. 122; S. C., 4 Sup. Ct. Rep. 326. The true rule, which applies also to a patent for a design, was formulated thus, by this court, in Garretson v. Clark: "The patentee must, in every case, give evidence tending to separate or apportion the defendant's profits and the patentee's damages between the patented feature and the unpatented features, and such evidence must be reliable and tangible, and not conjectural or speculative; or he must show, by equally reliable and satisfactory evidence, that the profits and damages are to be calculated on the whole machine, for the reason that the entire value of the whole machine, as a marketable article, is properly and legally attributable to the patented feature." The case of Manufacturing Co. v. Cowing, 105 U. S. 253, was a case falling within the last clause of the rule thus stated, and was an exceptional case, as was stated by the chief justice, in the opinion. The general rule was recognized in that case, and the exception was made, in regard to the oil-well gas pump there involved, because there was only a limited and local demand for it, which could not be, and was not supplied by any other pump. The rule in question is even more applicable to a patent for a design than to one for mechanism. A design or pattern in ornamentation or shape appeals only to the taste through the eye, and is often a matter of evanescent caprice. The article which embodies it is not necessarily or generally any more serviceable or durable than an article for the same use having a different design or pattern. Approval of the particular design or pattern may very well be one motive for purchasing the article containing it, but the article must have intrinsic merits of quality and structure, to obtain a purchaser, aside from the pattern or design; and to attribute, in law, the entire profit to the pattern, to the exclusion of the other merits, unless it is shown by evidence, as a fact, that the profit ought to be so attributed, not only violates the statutory rules of "actual damages" and of "profits to be accounted for," but confounds all dis. tinctions between cause and effect. Dobson v. Hartford Carpet Co. Opinion by Blatchford, J. [Decided April 20, 1885.] * * ** CRIMINAL LAW--PROSECUTION FOR BIGAMY-JURORS -ACTS OF MARCH 22,1882, AND JUNE 23,1874.—(1) Under section 5 of the act of Congress of March 22, 1882 (22 Stat 30), which provides "that in any prosecution for big. amy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman that he believes it right for a man to have more than one living and undivorced wife at the same time," the proceedings to impanel the grand jury which finds an indictment for one of the offenses named, under a statute of the United States, against a person not before held to answer, are a part of the prosecution, and the indictment is good, although persons drawn and summoned as grand jurors were excluded by the court from serving on the grand jury, on being challenged by the United States, for the cause mentioned, the challenge being found true. The statute applies to grand ju(2) Where, under section 4 of the act of Congress of June 23,1874 (18 Stat. 254)," in relation to courts and judicial officers in the Territory of Utah," in the trial of an indictment, the names in the jury-box of 200 jurors, provided for by that section, are exhausted, when the jury is only partly impaneled, the District Court may issue a venire to the United States marshal for the Territory, to summon jurors from the body of rors. THE ALBANY LAW JOURNAL. the judicial district, and the jury may be completed from persons thus summoned. The principle which authorized the action of the court in obtaining petit jurors in this case, after the statutory measures had been exhausted, is sanctioned by authority. Bac. Abr. "Juries," C; 1 Chit. Crim. Law, 518; 2 Hale P. C. 265, 266; United States v. Hill, 1 Brock. 156; Mackey v. People, 2 Colo. 13; Stone v. People, 2 Scam. 326; Straughan v. State, 16 Ark. 37, 43; Wilburn v. State, 21 id. 198, 201; Gibson v. Com., 2 Va. Cas. 111, 121; Shaffer v. State, 1 How. (Miss.) 238, 241; Woodsides v. State, 2 id. 655, 659; State v. Harris (Sup. Ct. Iowa, Sept., 1884), 20 N. W. Rep. 439; S. C., 17 Chic. Leg. N. 58. By section 1868 of the Revised Statutes, the District Courts of the Territory have common-law jurisdiction, and under section 1874 of the Revised Statutes, and section 1061 of the Compiled Laws of Utah, of 1876, those courts have original jurisdiction, in By section 217 of the Criminal Procriminal cases. cedure Act of Utah, of February 22, 1878, all issues of fact in criminal cases must be tried by jury, and by section 7 the defendant in a criminal action is entitled to a speedy trial. A venire to summon jurors is a writ necessary to the exercise of the jurisdiction of the court, and agreeable to the principles and usages of law, where it is not forbidden or excluded, and where the affirmative provisions of law have, so far as they extend, been first observed. In United States v. Hill (before cited), Chief Justice Marshall, speaking of the "It has been justly oblaw as it then existed, says: served that no act of Congress directs grand juries, or defines their powers. By what authority, then, are they summoned, and whence do they derive their powers? The answer is that the laws of the United States have erected courts which are invested with This jurisdiction they are criminal jurisdiction. bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are therefore given by a necessary and indispensable implication. But how far is this implication necessary and indispensable? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential." Clawson v. United States. Opinion by Blatchford, J. [Decided April 20, 1885.] DRAFTS AGAINST CARGOES-TI- SALE-DELIVERY TLE-LIABILITY FOR PRICE case. to G. for the price of the cargoes, with interest from [Decided May 4, 1885.] - ADMISSION IN ANSWER TRUSTEE un PLEADING answer, REMOVAL FOR MISMANAGEMENT.-A defendant to a in his states bill in equity, who der oath, the provisions of a writing which is presumed to be in his possession, cannot complain that the court acted upon his admission. Courts of equity are frequently required to act on the admissions of the answer without other proof. Thus when a cause is heard upon bill and answer, the decree is based entirely on the admissions of the answer withReynolds v. Crawfordsville out other testimony. Bank, 112 U. S. 405; Brinckerhoff v. Brown, 7 Johns. Ch. 217; Grosvenor v. Cartwright, 2 Cas. Ch. 21; Perkins v. Nichols, 11 Allen, 542. At all events, it does not lie in the mouth of a defendant in equity to complain that the court assumed his answer made under oath to be true and decreed accordingly. The next assignment of error is that the decree rendered by the Circuit Court is not justified by the law. The decree rests solely on the ground alleged in the bill, of neglect of duty and mismanagement of the trust property. If these grounds are sustained by the proof, the authorities are ample to justify the decree of removal. For where the acts or omissions of the trustee are such as to show a want of reasonable fidelity, a court of equity will remove him. Ex parte Phelps, 9 Mod. 357; Mayor of Coventry v. Attorney-General, 7 Brown P. C. 235; Attorney-General v. Drummond, 1 Dru. & W. 353; Attorney-General v. Shore, 7 Sim. 309; Ex parte Greenhouse, 1 Madd. 92; Ex parte Reynolds, 5 Ves. 707; Clemens v. Caldwell, 7 B. Mon. 171; Johnson's Appeal, 9 Penn. St. 416; Ex parte Potts, 1 Ash. 340; Buchanan v. Hamilton, 5 Ves. 722; Ellison v. Ellison, 6 id. 663; Portsmouth v. Fellows, 5 Madd. 450; Lathrop v. Smalley's Ex'r, 23 N. J. Eq. 192; Hussey v. Coffin, 1 Allen, 354; Attorney-General v. Garrison, 101 Mass. 223. Where a sole executor sustains the twofold character of executor and guardian, the law will adjudge the ward's proportion of the property in his hands to be in his hands in the capacity of guardian, after the time limited by law for the settlement of the estate, whether the final account has been passed by the Orphans' Court or not. Watkins v. State, 2 Gill. & J. 220 So where the same person is executor of an estate and guardian of a distributee, and there is nothing to show in which capacity he holds funds after payment of debts and settlement of the estate, he shall be presumed to hold them as guardian. State v. Hearst, 12 Mo. 365; see also Johnson v. Johnson, 2 Hill (S. C. Ch.), 277; Karr's Adm'r v. Karr, 6 Dana, 3. But the proof that the trust fund came to the hands of the trustee does not stop with the order and decree of the Probate Court finding the money in his hands as executor, and directing its payment to himself as trustee; for it appears that he made and filed in the Probate Court his receipt, as trustee for the fund, and upon the strength of that receipt procured his discharge as executor. It remains to inquire whether the proof sustains the charge of neglect of duty and mismanagement of the trust funds. Having taken possession of the trust moneys, it became the duty of the appellant to invest them as directed by the will, if it were possible to do so. The proot shows that it was possible. The appellant admits, under oath, that he has made no investments of the trust assets, and placed no funds in securities of any sort, or in bank, and set aside no annuities for the benefit of the cestui que trust or the trust estate. His own admissions show neglect of duty and mismanagement of the trust estate. The neglect to invest constitutes of itself a breach of trust, and is ground for removal. Clemens v. Caldwell, 7 B. Mon. 174; Lathrop v. Smalley's Ex'rs, 23 N. J. Eq. 192. Decree affirmed. Cavender v. Cavender. Opiniou by Woods, J. [Decided April 20, 1885.] UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.* CONTEMPT -INTERFERENCE OF STRIKERS WITH RECEIVER. A writer, signing himself chairman, sent the following notice to the various foremen of the shops of the Wabash Railway Company during a strike organized to resist a reduction of wages, the railroad being at that time in the hands of a receiver appointed by the United States Circuit Court: "Office of local committee, June 17, 1885. Foreman: You are requested to stay away from the shop until the present difficulty is settled. Your compliance with this will command the protection of the Wabash employees. But in no case are you to consider this an intimidation." Held, that this was an unlawful interference with the management of the road by the receiver, and a contempt of court for which the writer should be punished. Cir. Ct. W. D. Mo., June, 1885. Matter of Wabash R. Co. Opinion by Krekel, J. BILL OF LADING-EXEMPTION CLAUSE-"SHIP-OWNERS WILL NOT BE LIABLE FOR MORE THAN INVOICE *Appearing in 24 Federal Reporter. VALUE."-The bill of lading was for fourteen bales, three of which were damaged. It contained the clause that in case of damage, loss, or non-delivery the shipowners will not be liable for more than the invoice value of the goods." The invoice value of the fourteen bales was $2,692.16; the price obtained for the whole in the foreign market was $2,901.85. The invoice value of the damaged goods alone was $571.05; the actual price received for them was $184.85. Respondent relied on the aualogy of insurance policies, and the rule that where such policy coutains the clause "free from average, unless general," under a certain per cent, the percentage of loss is calculated upon the subject insured as a whole, and that there can be no recovery for loss of a part less than the agreed percentage calculated on the whole. Respondent contended therefore that as the shipper realized on the whole cargo more than the invoice value, he could not recover the loss on the three packages. Held, that the liability of a common carrier is not simply on contract, like the liability of an insurance company, but in tort as well, and arises separately for each item of loss. That the above clause in the bill of lading should be construed according to its natural import and evident intention, not as a condition of any liability at all, but as a limitation of the extent of the carrier's liability, and as applying distributively upon each article damaged; and that he is to be held liable, in the sense of being accountable, for no more than the invoice value of the goods damaged. For the same reason also held, that on a partial injury the damage is to be computed on the basis of the invoice value of the damaged goods, and their net proceeds being credited against their invoice price and freight, the carrier is to be held for the difference only. In such cases it has long been the established law of this country, and it is now the law of England, although for some fifty years, until comparatively recently, the opposite construction there prevailed, that the percentage of loss excepted in the memorandum clause is to be computed upon the subject insured as a whole, and not upon its separate parts, such as cases, packages, or hogsheads; unless the insurance be clearly declared to be made upon each package or case separately. Under this rule if a hundred boxes of oranges were insured "free from average, unless general," or "free from average under five per cent," and four of the hundred boxes were wholly lost by a sea peril, the remaining ninety-six being uninjured, no recovery could be had of the insurers for the total loss of the four boxes. Guerlain v. Columbian Ins. Co., 7 Johns. 527; Wadsworth v. Pacific Ins. Co., 4 Wend. 33; Biays v. Chesapeake Ins. Co., 7 Cranch, 415; Morean v. U. S. Ins. Co., 1 Wheat. 219; Ralli v. Janson, 6 El. & Bl. 422; Entwistle v. Ellis, 2 Hurl. & N. 549; Newlin v. Ins. Co., 20 Penn St., 312; Hernandez v. Sun Mut. Ins. Co., 6 Blatchf. 317; 2 Arn. Ins. 865; 2 Phil. Ins. 505; Marsh. Ins. 173. The above rule in insurance cases is founded upon the nature of the insurance contract, which, unless the contrary appear, is an insurance of the cargo as a whole, and not a separate insurance upon each article. Humphrey v. Union Ins. Co., 3 Mason, 429, 442. The memorandum clause is a condition of the contract that excludes partial loss, or a partial loss under a certain percentage, and the computation of the percentage therefore follows the nature of the insurance contract; that is, upon the goods insured as an aggregate. The liability of a common carrier for goods lost by negligence is not a liability upon contract only, but in tort also. The liability arises separately for each item of loss. The limiting clause in this bill of lading is not a condition of the existence of any liability at all on the part of the carrier; it is a mere limitation of the extent of his liability. It must be applied therefore according to the nature of the liability itself; that is, THE ALBANY LAW JOURNAL. As a limitation, distributively, upon each article lost or damaged, for which the carrier is accountable. this court held it valid in the case of The Hadji, 18 Fed. Rep. 459; and a similar decision upon the same clause has also been made by Judge Nixon in the case of The Lydian Monarch, 23 Fed. Rep. 298. The principle of these decisions, so far as they uphold the carrier's right to limit his liability to some certain value, bas been also recently affirmed by the Supreme Court in the case of Hart v. Pennsylvania R. Co., 112 U. S. 331, although the present question did not arise in that case, because the limitation was upon each case separately. The limiting clause in this case must be construed as applying distributively upon each article damaged, because that is the most natural meaning of the words, and that best accords with the presumed intention of the parties. Dist. Ct., S. D. N. Y., June 10, 1885. Pearse v. Quebec Steamship Co. Opinion by Brown, J.. "DU SALE-STOPPAGE IN TRANSIT-TRANSFER OF PLICATE VENDEE.-On February 6, 1884. D. sold to T. twentyfive hogsheads of tobacco, and shipped them by rail to duplicate him, taking two bills of lading, one marked "original," and the other "duplicate." The " bill of lading and invoice were transmitted to T., and was attached to a sixty-days draft original the drawn by D. on T., and sent through a bank for acduplicate," transceptance. T., on receipt of the " ferred it by indorsement to C., with whom he had contracted to sell the tobacco, and received payment therefor; and on presentation of the "original" and draft the next day, refused to accept the draft, and it was returned to D. On February 24, 1884, T. failed, and D. ordered the goods, then in transit, to be stopped. On February 27 and 29, 1884, C. demanded the goods of the railroad company, and was informed that they had been stopped in transit by D. and shipped back to them; whereupon C. sued the company to recover the value of the goods, claiming to be an innocent purchaser for value. Held, (1) that the transfer of the " duplicate" bill of lading for value did not carry with it necessarily the title to the goods; and (2) that C. had notice before he paid for the goods, which should have put him on inquiry as to what disposition had been made of the "original" bill of lading, and therefore did not acquire a legal title to the goods that would defeat the right of the consignor to stop them in transit. Dist. Ct., W. D. Tex., 1885. Castanola v. Opinion by Turner, J. Missouri Pac. R. Co. MORTGAGE DEFAULT WHOLE ELECTION OF MORTGA- GOR TO DECLARE There are quite a number of reported cases which hold MICHIGAN SUPREME COURT ABSTRACT. CONVERSION LOGS AND DAMAGES-MEASURE OF cover. Y. 211; Page v. Fowler, 39 Cal. 412; Forsyth v. Wells, [Decided June 10, 1885.] LANDLORD AND TENANT AGREEMENT TO ERECT PAY FOR CONSTRUCTION.- In BUILDING-RENTS TO this case the owner of a lot in the city of Detroit seeks to recover possession from a party claiming to be ten. ant, but whose tenancy she deuies. The facts are that on June 3, 1884, the respondent, as party of the first part, entered into a written agreement with the complainaut, as party of the second part, whereby he agreed to build and furnish for her a stable on the lot. in question for a stipulated price, he furnishing some of the materials, but she the major part. The stable was to be finished by July 1, 1884, and the complainant was to pay the respondent $200 for his labor, and "The said the market value for such materials as he should furnish. It was further agreed as follows: sums of money are to be paid by the said party of the second part, giving to the said party of the first part a lease of said stable, which said lease is to continue and to remain in force until the said party of the first part shall have received from the rents, or from said party of the second part, the sums of money above provided for. If the party of the first part decides to retain possession of said stable himself, the rent is to be fixed at the rate of $25 per month. If he decides to rent it to some other person, the rent is not to be less The stable was not finished as than $25 per month." soon as agreed, and when it was finished, a dispute arose between the parties as to the sum to be paid therefor. Some negotiations for a settlement of the dispute were had between the parties, but they came to nothing, and respondent refusing to surrender possession, this proceeding was instituted. On trial in the Circuit Court the complainant had judgment, and the respondent brings the case here on writ of error. In support of this judgment it is contended that the contract between the parties, in so far as it contemplated a tenancy, amounted only to an agreement for a lease, and not to an actual leasing; and People v. |