erated into a mere useless form, and he disposes of it in eleven lines, of so little importance does he consider it. 4 Kent Com. *468. Yet it has a place and use, for it may be resorted to where the meaning of the premises is not clear. Hagarty v. Nally, 13 Irish C. L. Rep. 532; Blair v. Osborne, 84 N. C. 417; Carson v. McCaslin, 60 Ind. 334; and it will prevail over the reddendum. Burchell v. Clark, 2 L. R., C. P. Div. 88; and the premises and habendum together will prevail over the covenants of warranty. Seymor's case, 10 Coke, 95. All deeds are to be construed favorably and as near the intention of the parties as may be consistent with the rules of law. Hollingsworth v. Fry, 4 Dall. 345; Stoever v. Stoever, 9 S. & R. 450; Huss v. Stephens, 51 Penu. St. 282; Cumberland B. & L. Assn. v. Aramingo M. E. Church, 13 Phila. 171. Among those rules are the following: Where there are two clauses in a deed, of which the latter is contradictory to the former, then the former shall stand. Cruise, tit. xxxii, ch. 20, § 8; Cother v. Merrick, Hardres, 94. The first grant and the last will is of the greatest force. Co. Litt. 112 b. The general rule is that when there is a repugnancy, the first words in a deed and the last words in a will shall prevail. Lewis' Estate, 3 Whart. 162. While in the interpretation of deeds of gift, settlements and other voluntary conveyances, as in wills and other testamentary papers, the intention of the grantor is to be taken as the cardinal rule of construction. Means v. Presbyterian Church, 3 W. & S. 303; Huss v. Stephens, supra; Mergenthaler's Appeal, 15 W. Notes, 441; Ringwalt v. Ringwalt, 42 Legal Intel, 80; Higgins v. Wasgatt, 34 Me, 305; deeds of bargain and sale, and lease and release, and other deeds founded upon a valuable consideration, or reserving rent, are to be construed most strongly against the grantor and in favor of the grantee. Co. Litt. 183, a; Stokely's Estate, 19 Penn. St. 483; Klaer v. Ridgway, 86 id. 529; Adams v. Frothingham, 3 Mass. 361. In the case of a patent ambiguity which appears on the face of the instrument, no averment is allowed to explain it. In such a case it is for the court to declare the proper construction of the deed as a matter of law. Cox v. Freedley, 33 Penn. St. 124; Harvey v. Vandegrift, 89 id. 346; Smith v. Thomspon, 8 M. G. & S. 44; but in the case of a latent ambiguity, an averment to explain it by parol evidence is admissible. Cruise, tit. xxxii, ch. 20, § 60; Greenl. Ev., §§ 297 to 300; as for instance, to identify the property, or the person to whom it is granted. Thus if a feoffment be made of the manor of S., and the feoffor has a manor called North S., and another manor called South S., parol evidence will be admitted to show which manor was meant. Harding v. Com. Suffolk, 1 Rep. in Ch. 138; or if there are two persons bearing the name of the grantee, which of the two was the person intended. Meres v. Ansell, 3 Wilson, 275; Shelburne v. Inchiquin, 1 Brown Ch. 338; Peisch v. Dickson, 1 Mason 9; Brigham v. Rogers, 17 Mass. 571; Jackson v. Loomis, 18 Johns. 81; 19 id. 449; but parol testimony will not be received to increase the rent or shorten or lengthen the term. Preston v. Merceau, 2 W. Bl. 1249. Parol evidence of the declarations and intentions of the grantor is not admissible to aid in the construction of a deed. Mc Williams v. Martin, 12 S. & R. 269; nor is the understanding of the person who drew it. Fox v. Foster, 4 Penn. St. 119; although if the words are equivocal, or there is a doubt as to the intent, the acts and declarations of the parties under the agreement, at the time and subsequent to the transaction, commonly called the contemporaneous construction, and the surrounding circumstances, may be taken as a guide to their intention. Lehigh Coal & Nav. Co. v. Harlan, 27 Penn. St. 429; Miner's Appeal, 61 id. 283. To apply these principles to the present case, let us inquire what the facts are. Robert Glassey, in erecting buildings on his lot, built over on the ground of Leonard Frailey, 151⁄2 inches at one end of his lot and 10%1⁄2 inches at the other end. Glassey died, having devised his property to the defendant. Frailey might have treated her as a trespasser, but he did not. He accepted her as a tenant. He leased that part. of his ground covered by the buildings to the defendant, her heirs and assigns, and reserved a yearly rent to himself, his heirs and assigns, taking her covenant binding herself, her heirs and assigns, to pay the rent. All this appears in the deed, which is in the handwriting of Frailey, and shows an intention to convey the fee. The only part of the deed which conflicts with this intention are the words in a subsequent clause of the deed, "for the term of five years," and as they are subsequent to the lease in fee, they cannot stand. Treating them as the habendum, they are repugnant to the premises, and therefore void, and must be rejected in construing the deed. Both cannot survive; the estate conveyed cannot be a fee and also a term for years. It would be contrary to all the rules of construction to permit the habendum for years to override the lease in fee conveyed by the premises. The subsequent acts of the parties show the construction which they put upon the deed-that a fee was intended to be conveyed and not a term for years. When Frailey received the annual rent he described it in the receipts he gave as ground rent, which is a term usually applied to perpetual rents in this city, although it is also applied to rents reserved on long leases. See Cadwalader v. App, 81 Penn. St. 194; but not to leases from year to year. Eleven years after the date of the deed, when the defendant would have been a tenant from year to year, if the plaintiffs' contention is good, the defendant was called upon by Frailey to pay for surveying the lot. This is a charge usually paid by owners of the fee, and not by tenants from year to year. If we look at the circumstances surrounding the transaction, we find that the defendaut, owning permanent buildings, which by mistake had been erected on the ground in dispute, required a perpetual lease of the ground, to give her continual peace, and not a lease for a short term, which would only postpone the evil day when she would be called upon to take down her buildings. Everything concurs to show that a perpetual lease reserving a perpetual rent was intended; the contemporaneous construction of the parties proves it, and the surrounding cir cumstances confirm it. In construing this deed, we have treated the words "for the term of five years" as if they were words of limitation upon the duration of the estate conveyed to the defendant, and not as descriptive of the term of Charles H. Rainier and others, tenants of Frailey's ground, of which the property in dispute was a part. There is an ambiguity in this respect, which if it should be resolved in favor of the defendant, would dispense with the further consideration of those words in construing the deed. In every aspect of the case we are of opinion that the defendant is tenant in fee of the land, subject to a perpetual ground rent, which is non-extinguishable except with the consent of the plaintiff. At a railroad crossing he must look and listen, and is excusable for the omission only when the circumstances show that both precautions were impossible or unavailing. Plaintiff's intestate was killed at a crossing on defendant's road which crossed the track at an acute angle. There was no obstacle to prevent seeing an approaching train for more than half a mile from the crossing. He was driving a gentle horse, and the condition of the road was such as to compel a moderate speed. The night was dark and misty, but it appeared by plaintiff's own witness that the headlight of the engine could have been seen at a distance much more than sufficient to give him warning, and had he been looking, to have enabled him to escape injury. Held, that the evidence was insufficient to make the question of contributory negligence one of fact, and that a refusal to nonsuit was error. both precautions were impossible or unavailing. There is no evidence, direct or inferential, of the exercise of such care and prudence by the deceased. He was familiar with the locality, and had often passed the crossing. The highway which he travelled from Syracuse approached the rails at a very acute angle, and for a thousand feet from such crossing gave an unobstructed view of the railroad. At the crossing the track could be seen on the north for a distance of twenty-seven hundred feet, no obstacle intervening to bar the line of vision. The deceased left Syracuse after having indulged to some extent in the use of intoxicating liquor. One witness rode with him to the toll-gate, and there left him, describing him as silent and dull. Some evidence indicates that he was awake at that point, but one of the men on the engine swears that as deceased ap APPEAL from judgment of General Term, Fourth proached the crossing his head was bent back upon Department, affirming judgment for plaintiff entered upon a verdict. At the close of plaintiff's evidence defendant moved for a nonsuit, on the ground that the evidence failed to show negligence on defendant's part, and it failed to show no contributory negligence. Motion denied, and defendant excepted. Louis Marshall, for appellant. T. K. Fuller, for respondent. FINCH, J. A careful examination of the testimony given upon the trial leads us to the conclusion that upon the issue of defendant's negligence there was perhaps a question of fact for the jury. While the proof was extremely weak and its decided preponderance was against the plaintiff, it is difficult to say that there was none. It is not in the least doubtful that somewhere between the whistle post and the Jamesville crossing the bell of the engine was rung and the whistle sounded. That fact is established not merely by the evidence of the three persons on the engine, who testify that they gave the signals, but by passengers on the train, who heard them, one of whom was a witness for the plaintiff, and by two other persons who resided near the crossing. The fact is further and very conclusively corroborated by the circumstance that every one of the plaintiff's witnesses heard either the whistle or the bell, or both. But the question when the signals were given, whether at the whistle post or at the crossing; whether before the accident or only at the moment of its occurrence, is left open to possibility of doubt, and it may be cannot be determined as a matter of law. The whistle post was distant from the crossing about a quarter of a mile, and as the train was running not less than thirty miles an hour, it took but thirty seconds to run from the signal point to the crossing, and the conflicting theories depend upon what occurred within that brief interval. Several witnesses for the plaintiff testify that the sounding of the whistle and the application of the air brake, which last confessedly occurred at the moment of the accident, were contemporaneous, at the same instant, and without appreciable interval. While this evidence was largely matter of judgment, and extremely open to error or mistake, we cannot reject it wholly, and it is possible that it brought the issue within the province of the jury. But upon the question of contributory negligence we disagree with the General Term. The burden was upon the plaintiff of showing affirmatively, either by direct evidence or the drift of surrounding circumstances, that the deceased was himself without fault, and approached the crossing with prudence and care, and with senses alert to the possibility of approaching danger. He must look and listen, and is excusable for the omission only when the circumstances show that some object behind him in the sleigh. This witness, it is said, was impeached by proof of contradictory statements. But excluding his evidence, it still remains apparent that the deceased, if awake and exercising his senses and the caution demanded by his situation, could have seen and might have avoided the train unless the night was so dark that he could not see, and of such character and surroundings that the noise of an approaching train could not be heard. The burden of establishing affirmatively freedom from contributory negligence may be successfully borne, though there were no eye-witnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If in such case the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased, that inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury, and require a choice between possible but divergent inferences. If on the other hand those facts and circumstances, coupled with the occurrence of the accident, do not indicate or tend to establish the existence of some cause of occasion of the latter which is consistent with the exercise of proper prudence and care, then the inference of negligence is the only one left to be drawn, and the burden resting upon the plaintiff is not successfully borne, and a nonsuit for that reason becomes inevitable. In the present case, except for the darkness of the night, there was no obstacle to the vision of the deceased for a long distance from the crossing. Neither houses nor trees nor inequalities of the land were obstacles to his sight for a distance from the crossing toward the approaching train of more than half a mile. His horse appears to have been quiet and kind, and susceptible of easy control. The approach to the crossing was quite bare of snow, naturally compelling a moderate speed of the sleigh. Unless therefore the facts disclose that the darkness and the mist were such as to make it impossible to see the headlight of the engine at a distance adequate for sufficient warning, it is a necessary inference that deceased did not look, and his death was the result of a blind or reckless movement upon the track, which ordinary care would have surely prevented. The very darkness made more necessary the duty of watchfulness, and if the deceased could have see the lights of the train in season for safety the accident itself demonstrates that he did not look, or that if he did, he ventured upon a hazardous effort to cross in spite of the danger. Now the evidence establishes, without the least contradiction, that to one approaching the crossing and looking to the west along the railroad, the headlight of the engine and the lights of the cars were visible for a distance great enough to give adequate warning. One of the plaintiff's own witnesses, upon the accuracy of whose observation and the truth of whose statement the plaintiff depended as showing that the train was at the crossing when the whistle sounded, clearly establishes the fact. He lived south and east of the crossing, at a distance of one thousand and forty feet therefrom. He sat in a west room of his house, the outlook being toward the crossing, and his line of vision forming an acute angle with the track at that point, his house being three hundred and sixty-nine feet in a direct line from the rails. He sat by the window, and hearing a whistle, looked out, shading his eyes from the light of his room, and saw the lights of the train, and was able to locate it as at or just south of the crossing. Another of plaintiff's witnesses came to the depot soon after the accident, and noticed a train going north, and saw it near the water-tank. He added: "The train must have been sixty to eighty roads away then, I should think; there was no difficulty in my seeing it until after it passed the bend in the road; there was nothing in the character of the atmosphere that night which prevented my seeing the train sixty rods; I saw the lights on the hind end of it." Still another of plaintiff's witnesses, walking upon the track with his back to an approaching train, neither looking nor listening, and giving no heed to the possibility of danger, was startled by seeing the glow of the headlight in front of him in time to take the alarm aud escape the danger. He thinks the train was eight or ten rods off when he became conscious of the light. If he saw it at that distance shining from behind his back, it is not at all doubtful, that looking toward the headlight, it would have been visible at a very much greater distance. All the rest of plaintiff's witnesses, however they emphasize the darkness, admit their ability to have seen lights at varying distances. The lights of the houses as the train left the city, and the lanterns of the trainmen as they moved about the scene of the accident were all visible. On the part of the defendant, one witness, passing soon after the accident, could see the lights of the houses and discern the fences and trees, and found his way without difficulty, though his horse was blind. Two others, one stationed over two hundred feet, and the other about four hundred feet from the crossing, were able through their windows and under that disadvantage to see the lights of the cars and so observe the passage of the train. Other witnesses found no difficulty in going to their homes, and noticed that objects at the roadside and lights in the houses were visible as they passed along. On this state of facts it is impossible to doubt that deceased might have seen the approaching train if he had looked for it as a prudent man should. The facts leave the occurrence explainable as to its cause and occasion only by the theory of negligence on the part of deceased. They indicate no way in which the accident might have hap-❘ pened; suggest no adequate cause which could or might have operated, which way or cause showed freedom from fault on the part of deceased, and could have produced the result in spite of his care and prudence. The evidence leaves no rational ground for any other inference than one of neglect and want of care. The judgment should be reversed and a new trial granted, costs to abide the event. Judgment reversed. All concur, except Ruger, C. J., not sitting, and Danforth, J., absent. NEW YORK COURT OF APPEALS ABSTRACT. CRIMINAL LAW-MURDER- INSANITY- CHARGE OF COURT-PENAL CODE, § 22.-Defendant was tried for murder. On trial it appeared that he at times indulged in the excessive use of intoxicating liquors, and that when confined in jail, he had delirium tremens. The court charged, in substance, that if the jury were satisfied that the prisoner at the time of the commission of the act was suffering from any species of insanity which prevented him from distinguishing between right and wrong. or acting from deliberation or premeditation, it was their duty to acquit. Defendant's counsel thereafter requested the court to charge that "if the jury are satisfied that at the time the alleged act was committed the defendant was suffering from the effects of delirium tremens or any other species of insanity, they must acquit." The court declined so to charge, stating it had already charged what constituted insanity. Held, no error. The court was requested to charge, that "if in consequence of some disease the defendant had not sufficient use of his reason to control the passions which prompted the act complained of, the jury must acquit." Held, that the request was erroneous, as it excluded the question as to the capacity to distinguish between right and wrong. Whenever the existence of any particular purpose, motive or intent is a necessary element to constitute a crime, the jury may, in determining this question, consider the fact that the accused was intoxicated at the time, it is the duty of the court, under section 22 Penal Code, simply to leave to the jury the consideration of the question of intoxication in determining the motive or intent. A refusal to charge, on a trial for murder, that intoxication absolutely tends to show absence of premeditation and deliberation, is not error. This court is confined in its jurisdiction strictly to a review of questions of law which appear upon the record. People v. Boas, 92 N. Y. 563. People v. Mills. Opinion by Miller, J. [Decided Feb. 10, 1885.] MARRIAGE- DOWER-CHOSE IN ACTION-ASSIGN. MENT-ACTION FOR ADMEASUREMENT.-The right of a widow to dower, until it is assigued, is a mere chose in action which is not the subject of a sale upon execution at law, and before assignment or admeasurement is only a claim. Lawrence v. Miller, 2 N. Y. 245; Moore v. Mayor, etc., 8 id. 113. It is laid down in Coke on Litt. vol. 1, p. 612, that "to bar dower the grant must be in fee tail or for the term of her life; an estate for one hundred or one thousand years, if she so long live, is no bar of dower, albeit they be expressly made in lieu of dower." In Ellicot v. Mosier, 7 N. Y. 201, it is held that the receipt of rent by the widow for several years after the death of her husband in lieu of dower, of one-third of the rent of lands leased by him, will not bar her action for dower. See also 2 Scrib. on Dower (2d ed), 83, 85, 253; and 1 Wash. on Real Prop. (4th ed.) 274. To constitute an assignment or admeasurement of dower by virtue of any agreement or any specific act of the party, it should be clearly manifest that such was the intention. It cannot be established by evidence of leases executed for brief periods, some of which do not specify the precise rights of the parties, and which the evidence shows were not executed with the view of admeasuring any right of dower. B. died intestate in 1849, seised of certain lands, and leaving a widow and two children. In 1855, the widow joined with her children in a lease of the premises for five years. J., one of the children, and plaintiff's husband died in 1859, he collected the rent under the lease up to his death, and plaintiff after that time. After the expiration of the lease, the surviving child executed, leases in her own name up to her death in 1866. She left a will devising her real estate to trustees; these joined with the widow of B. and plaintiff, in leases for terms not exceeding two years, by the terms of which three-ninths of the rent was made payable to the trustees, five- -- In an action for use and occupation, the plaintiff cannot recover for his failure, through defendant's withholding the land from him, to make a profitable sale. In order to be relieved of interest on a debt secured by mortgage, accounting from a certain time, the plaintiff should show that at that time he made an actual tender of the money owed. Peugh v. Davis. Opinion by Miller, J. [Decided March 2, 1885.] TARIFF LAWS-CONSTRUCTION-EVIDENCE-EXPERT TESTIMONY.-The language of tariff acts is to be construed according to its commercial signification, but it will always be understood to have the same meaning in commerce as it has in the community at large, unless the contrary is shown. Swan v. Arthur, 103 U. S. 598; see also Greenleaf v. Goodrich, 101 id. 278. The opinion of commercial experts is not to be put in the place of that of the jury upon a question that is as well understood by the community at large as by merchants and importers. Schmieder v. Barney. Opinion by Waite, C. J. [Decided March 2, 1885.] WILL-UNDUE INFLUENCE BURDEN OF PROOFCODE CIV. PROC., $$ 25, 88-9.-Where the testatrix had testamentary capacity, a present knowledge of the contents of the will, and where at its execution she was surrounded by all the guards which the statute has prescribed to prevent fraud and imposition, a will executed under these circumstances can be avoided only by influence amounting to force or coercion, and proof that it was obtained by this coercion. The burden of proving it is on the party who make the allegations. These principles are well settled. Tyler v. Gardiner, 35 N. Y. 559; Cudney v. Cudney, 68 id. 148. Here there is no proof of influence exerted or existing; none is pointed out by the appellant. The will is rational on its face. The property of the decedent was in real estate. It is distributed among her sons, subject to payment by them to each grandchild of fifty dollars. In the absence of evidence the appellant relies upon the fact that the proponent of the will was the son of the testatrix; that he communicated to the scrivener the provisions to be inserted in the will, and became himself a beneficiary. Under different circumstances these things might be important, but in the presence of a capable and intelligent testatrix-of proof that the instrument offered for probate expressed intentions in language dictated or adopted by Bryant, 21 id. 41; Railroad Co. v. McKinley, 99 U. S. her, they are of no moment. Something more must UNITED STATES SUPREME COURT AB- MORTGAGE-CONSTRUCTIVE POSSESSION BY MORTGAGEE-USE AND OCCUPATION-DAMAGES-INTEREST. -If a mortgagee, who takes a merely constructive possession of the mortgaged premises, has not therein such a valuable interest as warrants a claim upon him by the mortgagor for use and occupation, the mortgagor cannot, on the ground of set-off, ask to be relieved of his liability for interest on the debt secured. *Appearing in 5 Supreme Court Reporter. REMOVAL OF CAUSE-JURISDICTION-OBJECTION BY REMOVING PAPTY-FILING OF PETITION-TIME ALLOWED BOUNDARY SURVEYOR'S FIELD-NOTES. Upon the removal of a cause from a State to a Federal court, objection to the jurisdiction of the latter court cannot be raised by the party at whose instance the removal was effected. Railroad Co. v. Koontz, 104 U. S. 17. The act of 1866, as codified in Rev. Stat., § 639, ch. 2, allows the petition for removal to be filed "at any time before the trial or final hearing of the cause." This language applies to the last and final hearing. A mistrial by disagreement of jury does not take away the right of removal. See Insurance Co. v. Dunu, 19 Wall. 214; Stevenson v. Williams, id. 572; Vannevar v. 147. But we have held that this clause of section 639 was superseded and repealed by the act of 1875. Hyde v. Ruble, 104 U. S. 407, 410; King v. Cornell, 106 id. 395; Holland v. Chambers, 110 U. S. 59. If a surveyor's field-notes call for "two hackberry trees" as landmarks or monuments, and years afterward two such trees are discovered at the distance named in the fieldnotes, and bearing traces of the marks surveyors are accustomed to make, it is for the jury to determine, from all the circumstances, whether the trees so discovered are the identical ones intended by the surveyor as landmarks. It has been repeatedly held by the Supreme Court of Texas, as a general rule, that natural objects called for in a grant, such as mountains, lakes, rivers, creeks, rocks, and the like, control artificial objects, such as marked lines, trees, stakes, etc., and that the latter control courses and distances. Stafford v. King, 30 Tex. 270; Booth v. Strippleman, 26 id. 441; Bolton v. Lann, 16 id. 111, 112. There are exceptional cases however in which courses and distances may control; as where mistakes have been made by the surveyor as to objects called for, or where the calls for monuments are inconsistent with each other and cannot be reconciled, or where some other clearly sufficient reason exists for disregarding the general rule. Booth v. Upshur, 26 Tex. 71; Booth v. Strippleman, id. 441. Ayers v. Watson. Opinion by Bradley, J. be manifestly unequal to give to that place the benefit of taxing the whole of it. In a bill for relief against an alleged illegal taxation, allegations that such tax would involve complainant in a multiplicity of suits as to the title of lots laid out to be sold, prevent the sale of such lots, and cloud complainant's title to all his real estate, are sufficient to give jurisdiction to a court of equity. It is well settled that there ought to be some equitable ground for relief besides the mere illegality of the tax; for it must be presumed that the law furnishes a remedy for illegal taxation. It often happens however that the case is such that the person illegally taxed would suffer irremediable damage, or be subject to vexatious litigation, if we were compelled to resort to his legal remedy alone. For example, if the legal remedy consisted only of an action to recover back the money after it has been collected by distress and sale of the tax payer's lands, the loss of his freehold by means of a tax sale would be a mischief hard to be remedied. Even the cloud cast upon his title by a tax under which such a sale could be made, would be a grievance which would entitle him to go into a court of equity for relief. Judge Cooley fairly sums up the law on this subject as follows: "To eutitle a party to relief in equity against an illegal tax, he must by his bill bring his case under some acknowledged head of equity jurisdiction. The illegality of the tax alone, or the threat to sell property for its satisfaction, cannot of themselves furnish any ground for equitable interposition. In ordinary cases a party must find his remedy in the courts of law, and it is not to be supposed he will fail to find one adequate to his proper relief. Cases of fraud, accident, or mistake, cases of cloud upon the title to one's property, and cases where one is threatened with irremediable mischief, may demand other remedies than those the common law can give, and these, in proper cases, may be afforded in courts of equity." This statement is in general accordance with the decisions of this court as well as of many State courts. Dows v. Chicago, 11 Wall. 109; Hannewinkle v. Georgetown, 15 id. 549; State Railroad Tax Cases, 92 U. S. 575, 612, 613, and cases there cited. In Cummings v. Nat. Bank, 101 U. S. 153, 156, where the bank filed a bill to prevent the collection of a tax wrongfully assessed by the State against the shares of its stockholders, and which the bank was required to pay, we held that the fiduciary character in which the bank stood to its stockholders entitled it to come into a court of equity for relief. In the same case, the fact that a like remedy by injunction was given to parties in the State court was regarded as entitled to much weight; and it was further held that where a rule or system of valuation was adopted by the State board of assessment, calculated to operate unequally, and to violate the Constitution of the State, and applicable to a large class of individuals or corporations, equity might properly interfere to restrain the operation of such unconstitutional exercise of power. And in Litchfield v. Webster Co., 101 U. S. 773, 779, we held that a court of equity might relieve against an excessive rate of interest on taxes in arrear, which was really in the nature of a penalty, and which the State could not fairly and equitably demand, having itself claimed title to the property taxed. Union Pacific R. Co. v. Ryan. Opinion by Bradley, J. [Decided March 2, 1885.] MINNESOTA SUPREME COURT ABSTRACT. LIMITATION-STATUTE OF COLLECTING AGENTWHEN BEGINS TO RUN AGAINST.-An agent employed to collect a debt and to remit the amount col lected, after deducting his charges, is liable to an action by his principal for the recovery of the money without previous demand, if the agent neglects to make remittance within a reasonable time after collecting, and the statute of limitations then commences to run. The fact that the principal did not know when the money was collected does not prevent the operation of the statute, there being no fraudulent concealment of the fact by the agent. Stacy v. Graham, 14 N. Y. 492; Lillie v. Hoyt, 5 Hill, 395; Hart's Appeal, 32 Conn. 520; Campbell's Adm'rs v. Boggs, 48 Penn. St. 524; Denton's Ex'rs v. Embury, 10 Ark. 228; Estes v. Stokes, 2 Rich. (Law) 133; Mitchell v. McLemore, 9 Tex. 151; Hawkins v. Walker, 4 Yerg. 188. See also Cock v. Van Etten, 12 Minn. 522 Mast v. Easton. Opinion by Dickinson, J. [Decided Feb. 5, 1885.] CONTRACT-WRITING PRESUMED TO EXPRESS FINAL PURPOSE OF PARTIES.-An executory contract, until fully performed, is subject to such alterations as the parties'may agree upon; but when it is fully consummated, and a deed made in pursuance of it is accepted, it is presumed that the deed gives full expression to the final purpose of the parties; and if the deed differs from the contract, the deed itself, being the last express agreement on the subject, would be prima facie evidence that the change had been mutually agreed on. Hence the mere fact that the contract and deed do not agree, will not authorize the inteference of a court to correct the the deed. This can only be done when other proof is given that the discrepancy has arisen through fraud or mistake. Long v. Hartwell, 5 Vroom, 116; Rowley v. Flannelly, 30 N. J. Eq. 612; Hileman v. Wright, 9 Ind. 126; Crotzer v. Russel, 9 Serg. & R. 78; Seitzinger v. Weaver, 1 Rawle, 377; Stecker v. Shimer, 5 Whart. 452; Wilson v. McNeal, 10 Watts, 422; Jones v. Wood, 4 Harris, 25; Houghtaling v. Lewis, 10 Johns. 296. Whitney v. Smith. Opinion by Mitchell, J. [Decided Jan. 21, 1885.] RAILROAD COMPANIES-DUTY AS TO FENCES AND CATTLE GUARDS-GEN. ST. MINN. 1878, CH. 34, § 54VILLAGES -- INCONVENIENCE NO EXCUSE PUBLIC PLACE.-Gen. St. 1878, ch. 34, § 54, requiring railroad companies to fence their roads, and to build cattleguards at wagon crossings, applies as well to the limits of incorporated cities and villages as to the country. The first contention of defendant is that this statute has no application within the limits of au incorporated city or village. There is certainly no such exception to be found in the statute, and if we consider the evil and danger against which the Legislature intended to provide, there is no reason why the requirements of the act should not apply within cities and villages as well as in the country. It is not for the court to nullify by construction the plan and explicit requirements of the statute. Cleveland & P. R. Co. v. McConnell, 26 Ohio St. 57; Brace v. New York Cent. R. Co., 27 N. Y. 269; Bradley v. Buffalo, N. Y. & E. R. Co., 34 id. 427; Tracy v. Troy & B. R. Co., 38 id. 437; Flint, etc., R. Co. v. Lull, 28 Mich. 510. We find no authority to the contrary, except in those States where incorporated towns and villages are, in terms, excepted by the statute. Mere inconvenience to the company will not relieve it from obeying the law. Bradley v. Buffalo, N. Y. & E. R. Co., supra. Of course this statute must be construed in the light of other provisions of law against obstructing streets, highways, and public grounds. Hence a statute like this, which in general terms, imposes this duty on a railroad company, is always construed as allowing an exception where the company has no legal right to do the act. It does not require them, for example, to build a fence in a public |