owner's constitutional guarantee of compensation, yet when that guarantee has once been secured to him he may not question the validity of subsesequent provisional proceedings. Our conclusion therefore is, that so far as any question in the present case is involved, the statute as a whole is valid and must be sustained.

Before closing this opinion it may be proper to notice the various cases decided by this court which counsel seem to think conflicts with this decision, or the opinions which at least are thought to contain language inconsistent with the views herein expressed. The first case is that of the Railroad Company v. Weaver, 10 Kan. 344. That was an action for damages begun in a justice's court on the ground that the railroad company had constructed its road over the plaintiff's land and paid no damages therefor. The defense was that the land owner's only remedy was a proceeding under the statute to have his damages assessed. We decided against this claim, holding that the railroad company under the Constitution acquired no right until after it had initiated proceedings and paid or deposited the amount of the compensation awarded, and that in the absence of such proceedings and such payments or deposit, the land owner had all legal remedies against the company as against any other trespasser, and was not limited to the statutory proceedings for the assessment of damages. The next case is that of Railroad Company v. Ward, 10 Kan. 352, in which the railroad company sought to defend an action of trespass brought against it, by evidence of condemnation proceedings subsequent to the trespass, and we held that such condemnation proceedings did not relate backward or cure trespasses before they were had; that until the compensation money is paid or deposited, the railroad company acquires no rights and is liable for any trespass committed theretofore. Nothing in the language of the court in either of these cases, touches upon the validity of this section of the statute. It is true, the language referring to the constitutional provision is emphatic and decided, and we reiterate the same language here. Compensation in money, or by a deposit of money, must be made before the railroad company acquires any rights in the land. The next case is that of Railroad Company v. Callender, 18 Kan. 496. In that case it appeared that after the award of the commissioners, the land owner appealed, and on the trial in the district court recovered a much larger compensation than that given by the commissioners. Pending the appeal, the railroad company having deposited the amount of the award, but without giving the bond required by the statute, entered upon the land and constructed its road. After the recovery of judgment in the district court, the amount thereof not being paid, Callender having waited eight months, commenced his action in ejectment, and we held that such action could be maintained. In that case, even the provisional occupation by the railroad was not authorized by statute, the company hav

ing failed to execute the bond required as a condition precedent thereto. The validity of this section was not passed upon, it was assumed to be valid. The fact that the railroad company had not complied with its terms was noticed, and hence it was called a trespasser ab initio. We did not then think that even if the company had given the bond, the judgment should have been otherwise than it was, nor do we think so now. If, after the final adjudication of the amount of compensation, the railroad company fails promptly to pay the amount thereof, the provisional occupation ceases to be rightful, and the land owner may recover the possession of the land, as well as all damages for the injuries done thereto. The next case is that of Blackshire v. R. Co., 13 Kan. 514. In that case the land owner appealed and recovered a larger amount in the district court than had been awarded by the commissioners. The railroad company had deposited that amount with the county treasurer. Pending the appeal the treasurer defaulted, and the railroad company sought to have the amount deposited with him credited upon the judgment in the district court, claiming that the money while in hands of the county treasurer was at the risk of the land owner. We dissented from this claim, and held that it remained there at the risk of the railroad company. Considerable stress has been laid upon this case, as though the argument made by the court in its opinion in support of the conclusion there reached committed it to different views of the question now before us than those we have here expressed; but the scope of the argument made in that case will be better understood when we bear in mind the claim of the railroad company. It was, substantially, that, when the company had deposited the amount of the commissioner's award, the money became the money of the land owner, and the land the property of the railroad company. And the company also claimed that whatever further proceedings might be authorized, the title to neither land nor money was affected thereby, and hence that the money, while it remained in the hands of the county treasurer, so remained at the risk of the land owner. In the opinion we endeavored to show that there was no final appropriation of the land, and that the title did not pass until the full amount finally adjudicated to be the compensation was paid or deposited; that the appeal, like the appeal from the judgment of a justice, vacated the award and left pending no adjudication upon which the company could base title. We shall not restate the argument then made. We have reviewed the question again, and, notwithstanding the argument of the counsel for defendant in error, we think the argument then made was sound, and the conclusion reached in that case correct. We think now as then, that there is no final appropriation of the right of way until that compensation, which, as a final result of all litigation by appeal, error, or otherwise, is adjudged to be full and complete, is

paid. Up to that time all occupation which may be permitted is merely provisional. Yet, while the title to the right of way does not finally pass till the end of the litigation, yet the constitutional guarantee is satisfied when the award of the commissioners is made and deposited. The railroad company may not question the land owner's right of appeal because the legislature has the power to give it. If the land owner does not appeal at the end of ten days, the title to the land and the money is respectively transferred; but if he does appeal and avail himself of the privileges granted by the legislature, he takes them cum onere. See, also, as to the matter of appeal, the case of R. Co. v. Hammond, 25 Kan. 208. This same idea of no final appropriation of the right of way, no absolute transfer of title until the end of all litigation as to the amount of compensation, is recognized in the case of R. Co. v. Wilder, 17 Kan. 289. The last case referred to is that of City of Kansas v. R. Co., 18 Kan. 234. That was a case in which the City of Kansas attempted to open a street and condemn land therefor. The statute referred to authorized an appeal from the award of the householders, but nowhere authorized any possession of the land sought to be condemned, pending the appeal. Hence we held, and we think, very correctly, that pending such appeal, as the statute gave no right of temporary occupation, the city had none. These are all the cases to which we have been referred by counsel, in which any expression or conclusion is thought to appear antagonistic to the views expressed in this case. We see nothing that conflicts; and we certainly intended in those various cases to avoid any decision of the question now presented. Authorities upon this question can not be expected directly in point, in view of the difference between our Constitution and that of other States, and yet there are one or two authorities which deserve to be cited. See the case of Peterson v. Ferreby, 30 Iowa, 327, in which the court uses this language:

"The views herein expressed are not in conflict with the Constitution, which provides that 'private property shall not be taken for public use, without just compensation first being made, or secured to be made, to the owner thereof, as soon as the damages shall be assessed by a jury.' Const., art. 1, sec. 18. The property is not taken in an absolute sense, until the amount assessed upon appeal is paid. If the appellate jury in this case shall assess less than the sheriff's jury have assessed, the amount is secured to plaintiff, being in the sheriff's hands; if they shall assess more, the plaintiff can, by injunction, prevent the absolute appropriation of his property, until the increased sum is paid." Richardson v. Des Moines Valley R. Co., 18 Iowa, 260. “In either event the land owner is fully protected. We are clearly of the opinion that the money paid the sheriff should remain a deposit in his hands until the damages are fully assessed in the appellate court. The demurrer to the answer of de

fendant was improperly sustained." See also the case of Doughty v. Railroad Co., 1 Zabriskie, (N. J.) 445, in which Randolph, J., says: "But if the legislature have a right to say that a tender of the amount found by a jury shall be considered compensation, they might also have the right to say that a tender of the amount awarded by the commissioners will have the same effect, and the additional trial allowed can not render that unconstitutional which before was constitutional." We have given this question the fullest consideration, and our conclusion upholds the validity of this statute. We think the constitutional guarantee has been satisfied by it both in letter and spirit; that the rights of the land owner are protected, and at the same time no unreasonable obstruction placed in the way of railroad enterprises. It follows therefore that the judgment of of the district court was correct and it must be affirmed, and it is so ordered. All the justices concurring.

2, 7, 8, 12, 13, 16, 19 CUSTODY OF

1. ATTACHMENT - CUSTODIA LEGIS AN INDIVIDUAL UNDER BOND. Where property is held by an individual under a bond given in judicial proceedings for the re-delivery of the specific property, it is to be deemed in custodia legis, the same as if it had continued in the possession of the officers. McKinney v. Purcell, S. C. Kan., September, 1882, Judges' Headnotes.

2. ATTORNEY AND CLIENT-SETTLEMENT BY CLIENT -CHAMPERTY.

1. Plaintiff has the right to settle a suit brought to recover damages for a personal injury without the consent of his attorneys, and where he does so, the controversy must be regarded as at an end, and the suit must be dismissed. 2. Whether a contract between attorneys and the client, whereby, in the event of their success in an action for the recovery of damages, they are to receive, as compensation for their services, one-third of the amount which may be recovered, is champertous, not decided. Swanston v. Morning Star Mining Co., U. S. C. C., D. Colorado, June 19, 1882, 13 Fed. Rep., 215.

3. BANK-FIDUCIARY DEPOSIT-RIGHT OF ATTACHING CREDITOR. 1. While the relation between the bank and its depositor may be that merely of debtor and creditor, and the balance due on the account may be only a debt, yet if the money deposited belongs to a third person and is held by the depositor in a fiduciary capacity, its character is not changed by being placed to his credit in his bank account or mixed with other moneys deposited in his own

name, and when the principal and equitable owner of the funds asserts his right to the money before repayment to the depositor, neither an attaching, nor a garnisheeing creditor is entitled to have it applied to satisfy the debt or judgment of the debtor. 2. Where a person holds a fund for the use and as the property of his principal, it is not subject to garnishment by his judgment creditors, when the bank and creditor have notice of the principal's ownership in the fund, although such person deposits the fund in a bank in his own name. Morrill v. Raymond, S. C. Kan., September, 1882, Judges' Headnotes.

4. CONTRACT-CONDITIONAL SALE OF PERSONALTY IN FORM OF LEASE-RECORD.

1. Held, that a certain written contract, attempted to be disguised under the form of a lease, where the rent for one year was equal to the value of the organ sold, was a conditional sale; and that, as such, it should have been recorded, to prevent an attachment of the organ by the vendee's creditor, he having had no notice that it was a conditional sale. 2. The defendant, a sheriff who attached the organ, although put upon inquiry because he found it in the possession of a third party, was not defeated of the right to make the attachment, as it did not appear that he would have learned of the conditional sale by inquiry. Whitcomb v. Woodworth, S. C. Vt., January Term, 1882, Reporter's Advance Sheets.

5. CONTRACT-CONSIDERATION - PROMISE TO PAY DEBT DISCHARGED IN BANKRUPTCY.

1. A promise to pay a debt discharged in bankruptcy, made to an agent of the creditor, is a promise to the creditor himself, and competent to remove the bar. 2. Where the debtor had said: "The debt is an honest one - I always intended to pay it:" Held, that it was for the jury to say whether the debtor intended to promise to pay the debt, notwithstanding his discharge in bankruptcy, and a non-suit was error. Shaw v. Burney, S. C. N. C., February Term, 1882, 6 Va. L. J., 576.

6. CONVEYANCES-DEED ABSOLUTE IN FORM PASS. ES TITLE-SUBSEQUENT JUDGMENT.

1. An absolute deed, though made as a security for a debt, passes title, and a judgment subsequently rendered against the grantor has no lien upon the land that can be enforced by levy and sale, until the title be revested by redemption in the grantor. The debtor himself may redeem, or his creditors may, but until legal redemption the legal title is out of the debtor. 2. While we hold that at law a creditor can not subject the equity of redemption of his debtor to property, the legal title to which such debtor has parted with, yet we do not intend saying that in another forum he would necessari. ly be remediless. Graves v. Williams, S. C. Ga., Sept. 19, 1882.

7. CONTRACT-INTERPRETATION-CURED MEAT.'' Where a sale of cured meat" was made by a broker to a merchant at Memphis, that term is to be interpreted according to the understanding of the trade at Memphis, and not according to that where the seller resided, if there be any substantial difference between the two. Treadwell v. AngloAmerican Packing Co., July 26, 1882; 13 Fed. Rep., 22.

8. CORPORATION-FAMILY COMBINATIONS EQUI

TABLE RELIEF-STOCKHOLDER.

It is sufficient ground for equitable interference that complainant, who is a stockholder of a corporation, alleges that the officers of the corporation,

who are members of one family and own a majority of the stock, have combined to appropriate the profits of the corporation in the form of salaries, and through a contract with a firm of which they are members, and have also combined to keep complainant in ignorance with regard to these transactions. Sellers v. Phoenix Ins. Co., U.S. C. C., E. D. Pa., July 1, 1882; 13 Fed. Rep., 20. 9. DESCENTS AND DISTRIBUTIONS- PROCEEDS OF LIFE POLICY.

John A. Wilburn took out ten policies of insurance on his life for the benefit of and payable to his legal heirs. The contention is between the widow and children of said Wilburn as to the proper distribution of the money realized from the policies, the widow claiming one-third, and the children conceding her right to one-twelfth. Policies of insurance payable to designat ed beneficiaries are not the property of the decedent within the meaning of the statutes of distribution. The beneficiary has the exclusive right to the money realized. 65 Ind. 345. He alone has the right to assign or surrender it. 36 Conn. 132; 7 Robert, 155. The contract, and not the statutes, fixes the rights of the beneficiaries. Where a benefit is granted to several, and the respective proportions are not specified, the beneficiaries take equally. 2 Phil. Ch. 555; 5 Met. 328. The widow's rights were those of an heir, and by the contract all the heirs are to share alike. Wilburn v. Wilburn, S. C. Inj., Sept. 20, 1882.

10. EVIDENCE-FORGERY OF DEED-POSSESSION OF OTHER FORGED DEED.

On the trial of a person accused of uttering and publishing a forged deed for the conveyance of real estate, with intent to defraud, other forged deeds for the conveyance of real estate, including deeds of trust, made to a trustee to secure the payment of promissory notes or bonds, found in his possession, or proved to bave been uttered or published by him, are competent testimony to show the guilty knowledge of the accused. Lindsay v. State, S. C. Ohio, Sept. 26, 1882.

11. EVIDENCE-LOST RECORD OF JUDGMENT-PAROL EVIDENCE.

In an action of book account the defendant claimed that some part of the plaintiff's account was merged in a judgment; that the judgment was rendered by a justice of the peace; that the justice had deceased; that there was no record nor files of the judgment in the county clerk's office or the possession of the administrator. Held, that parol evidence was admissible to prove such facts; and that it would be presumed that the justice made a record of the judg ment. Dickerman v. Chapman, S. C. Vt., March Term, 1882, Reporter's Adyance Sheets.

12. FEDERAL COURTS-FOLLOW STATE DECISIONSORGANIZATION OF CORPORATIONS.

The Federal courts are bound by the decisions of the appellate court of a State in questions involving the construction of the statute law of the State, and the rule is applicable to a decision of such appellate court upon the legal existence of a corporation organized under the laws of the State. Mooney v. Humphrey, U. S. C. C., D. Col., June, 1882, 14 Rep., 354.

13. FEDERAL COURTS-JURISDICTION-COLLECTION OF STATE TAXES-RECEIVER. The jurisdiction of the Federal courts does not extend to the appointment of a receiver to collect taxes levied by a county court to pay interest on.

county railroad bonds. Thompson v. Allen County, U. S. C. C., D. Ky., July, 1882, 14 Rep., 356. 14, FRAUD-FALSE REPRESENTATIONS-PRINCIPAL AND SURETY.

Where a principal debtor, by falsely and fraudulently representing to the creditor that his surety has consented to an extension of time for payment, procures from the creditor an agreement for such extension in consideration that interest be paid, such agreement is, as to the creditor, fraudulent, and he may, upon discovery of such fraud, even after the period of extension has expired, repudiate such agreement and sue upon the original contract without refunding or tendering back the interest paid under such invalid agreement. Bebout v. Bodle, S. C. Ohio, September 26, 1882.

15. INSOLVENCY-RIGHT OF DEBTOR TO PREFER A

CREDITOR.

A debtor has the right to prefer one creditor over another, and the vigilant creditor is entitled to the advantage secured by his watchfulness and attention to his own interests. A debtor acting in good faith and without an intention to defraud, may execute a chattel mortgage upon his personal property to secure a particular debt due one creditor, pending an action by another creditor to secure a judgment against him. Randall v. Shaw, S. C. Kan., September, 1882, Judges' Headnotes. 16. JUDICIAL SALE-RIGHT OF PURCHASER TO DEMAND GOOD TITLE.

At a sale of land at public auction by an officer of the court, where the title to the land was acquired by the defendant under the following devise in a will: I bequeath to my daughter [the land in question] for her and her children's sole and separate use, free from any claim or control of her husband, and the purchaser at the sale declined to comply with the terms of his purchase, alleging a defect of title: Held, that a title acquired by such a devisee is not of such a clear and indisputable character as the purchaser has a right to demand, and that a court of equity will relieve the purchaser from complying with his bid made at the sale. Dunscomb v. Holst, U. S. C. C., W. D. Tenn., June 21, 1882, 13 Fed. Rep., 11.

17. JURISDICTION-FORGERY-INSTRUMENT FORGED WITHOUT THE STATE AND UTTERED THROUGH INNOCENT AGENT.

1. On a charge of uttering and publishing a forged instrument with intent to defraud (Rev. Stat., sec. 7091), the place where the instrument was uttered and published and not the place where the forgery was committed, determines the jurisdiction of the court over the accused. 2. If the forged instrument has been uttered and published in this State with intent to defraud, by means of an innocent agent here, it is no defense to an indictment in the proper county in this State, to show that the accused was never within the State, or that he owes allegiance to another State or Government. Lindsay v. State, S. C. Ohio, September 26, 1882.

18. MORTGAGE OF REAL ESTATE-NEGOTIABLE NOTE SECURED BY-RECORD.

Where a real estate mortgage is executed to secure the payment of a negotiable promissory note, such mortgage will so far partake of the negotiable char acter of the note, that whenever the note is transferred by indorsement before due, so as to free it from all equities existing in favor of the makers of the note, or of prior indorsers, the mortgage

will also be freed from such equities. But until the mortgage is recorded, such transfer will not prevent a third person, who has no notice of the mortgage or transfer, from purchasing the mortgaged property, and thereby obtaining a full and absolute title to the property, free and clear from the mortgage lien. But when the mortgage is recorded, its negotiable character is then extended even to bona fide purchasers of the property, and it retains such character contemporaneously with the note to which it is an incident so long as the note remains unsatisfied and negotiable, or until the mortgage is released of record by the mortgagee, or his attorney, assignee or personal representative; and that when the mortgage is so released, it then loses its negotiable character to the extent that any third person who may then purchase the property in good faith will obtain full, complete and absolute title thereto, free from all equities, liens, interests, trusts or incumbrances existing in favor of any holder of the note and mortgage, whether the note is satisfied or not. Lewis v. Kirk, S. C. Kan., September, 1882; Judges' Headnotes.

19. SALE-DELIVERY-BILL OF LADING WITH DRAFT

ATTACHED.

Where goods are sold and delivered to a carrier, with bill of lading in the name of the shipper indorsed to the purchaser, to be delivered only when the draft is paid, the ownership remains with the seller until the draft shall be paid, and the goods are at his risk. But when the payment is made, the ownership and risk change to the purchaser. Treadwell v. Anglo American Packing Co., U. S. C. C., W. D. Tenn., July 26, 1882; 13 Fed. Rep., 22.

20. TRUST-RIGHT OF TRUSTEE TO APPEAL. Where a fund arising from the sale of mortgaged property is brought into court for distribution among creditors and persons entitled to the same, the trustee, whose commissions have been allowed, has no right to appeal from an order directing the payment of a claim against such fund. Stewart v. Codd, S. C. Md., March 3, 1882, 58 Md. 86; Reporter's Advance Sheets.

21. WILL-SECRET TRUST-LETTER TO RESIDUARY LEGATEES.

The testatrix, desiring to devote the bulk of her estate to the furtherance of religious, educational and benevolent objects, and being apprized of the difficulty of legally reaching the ends proposed through express provisions in her last will and testament, made in her will an absolute and unconditional gift of her residuary estate to three persons, leaving also a letter of instructions to these residuary devisees and legatees. In this letter, which is not attested and is not referred to in the will, she said she relied upon them, immediately upon her deceased, to take such measures as might be necessary to accomplish her wishes. She had been told that the devisees and legatees could spend every dollar in any way they saw fit, and that she must rely on their good faith and sense of right. The plaintiffs brought this action to set aside the residuary clause in the will, claiming that the letter of instructions is to be cou strued together with the will, and that the whole form part of one plan to accomplish an illegal purpose, and that the devisees and legatees of the residuary estate take the same under unlawful and void trusts, and therefore, so far as the residuary clause is concerned, it is a fraud upon the heirs at law and next of kin. Held that the se

cret and unlawful trust, as alleged, is not estab lished, and that the residuary clause of the will is valid as a devise and bequest. O'Hara v. Dudley, S. C. N. Y., September 13, 1882, 22 Dailey Reg. 561.

RECENT LEGAL LITERATURE.

AMERICAN MINING LAW. Manual of American Mining Law as practiced in the Western States and Territories. Embracing a Compilation of the Text of the United States Statutes, Land Office Regulations and Decisions, and the Local Statutes of California, Colorado, Nevada, Dakota, Washington, Wyoming, New Mexico and Arizona. By W. P. Wade. St. Louis, 1882: F. H. Thomas.

The scope and purpose of this convenient and valuable little volume is apparent from its title page. As a compilation it is faithful and thorough, and will, we fancy, be found more available to the professional reader than a text book on the same subject, in view of the fact, which finds expression in the preface, that American mining law is, as yet, hardly ripe for elaborate treatment in a standard text book.

INDIANA PRACTICE, PLEADINGS AND FORMS. Adapted to the New Revised Code of Indiana, with a full citation of all the latest Adjudicated Cases in Indiana, and Numerous Authorities under the Practice of the Common Law and in Equity, and under the Codes of Other States. By John D. Works. Vol. 1. Cincinnati, 1882: Robert Clarke & Co.

This work is very satisfactory, both in plan and manner of execution. To meet the needs of the younger members of the profession, the statement of principles is full and comprehensive; while for the sake of those of the profession who care little for general discussion or the reasoning or opinions of the author, a full citation of authorities will be found in the book, the subjects being well classified and divided so as to be easily accessible. The work will, we think, be found indispensable to the Indiana practitioner.

LEGAL EXTRACTS.

THE LABOR LAWS.

In these days of trades-unionism,strikes and constant conflicts between capital and labor in almost every branch of the industries of this kingdom, it is interesting to turn back to statutes the existence of which is generally unknown, and to see how such matters were dealt with by Parliament in early times. In the reign of Queen Elizabeth (1562) a statute was passed which repealed all existing statutes dealing with the subject of the

labor laws, and which was intended to codify the whole law concerning the employment of artificers, laborers, servants of husbandry, and apprentices. From the recital it appears that an amendment of the existing laws was thought necessary for several reasons, but chiefly "that the wages and allowances, limited or rated in many of the said statutes, are in divers places too small and not answerable to this time respecting the advancement in prices of all things belonging to the said servants and laborers;" and the recital concludes with the words that "there is good hope that it will come to pass that the same law (being duly executed) should banish idleness, advance husbandry, and yield unto the hired person, both in the time of scarcity and in the time of plenty, a convenient proportion of wages. The statute itself contains what is intended to be a complete code of the orders regulating all kinds of labor, of which the following may be taken as affording the best examples and the most striking contrasts to the state of affairs at the present day. Section 12 provides that all artificers and laborers being hired for wages by the day or week shall, betwixt the months of March and September, be and continue at their work at or before five of the clock in the morning, and continue at work and not depart until betwixt seven and eight of the clock at night (except it be in the time of breakfast, dinner or drinking, the which times at the most shall not exceed two and a half hours in a day), upon pain to lose and forfeit one penny for every hour's absence, to be deducted out of his wages that shall so offend. Section 13 provides that anyone who shall be lawfully retained in and for the building or repairing of any church, house, ship, mill, or every other piece of work taken in great, or gross, shall not depart (unless it be for nonpayment of his wages) until the same be finished, upon pain of imprisonment for one month, and the forfeiture of the sum of five pounds to the person from whom he shall so depart. Perhaps, however, the most remarkable of all the provisions of this statute is that contained in section 15, which provides for the regulation of the price of labor. It enacts that the justices of the peace of every shire, riding, and liberty within the limits of their several commissions, and the sheriff of that county, if he conveniently may, every mayor, bailiff, or other head officer within any city or town corporate, shall before the 10th June next coming, and afterwards shall yearly at every general session first to be holden and kept after Easter, assemble themselves together, and they so assembled calling unto them such discreet and grave persons of the said county, or of the said city or town corporate, as they shall think meet, and conferring together respecting the scarcity or plenty of the time and other circumstances necessarily to be considered, shall have authority within the limits of their commissions, to limit, rate, and appoint the wages of all servants and workmen whose wages in time past hath been by any law or statute rated and appointed. The section