wearing apparel. But this is not the only error in this case, for the court also erred in refusing to set aside the verdict and award the defendant a new trial; and this constitutes the defendant's second ground of exception. For as the record plainly shows, this is but one of a series of systematic efforts on the part of this plaintiff to mulet this company in damages for its refusal to allow him to carry merchandise to be sold at auction under the head of wearing apparel. One of these cases we had occasion to consider at the last term of this court. Railroad Co. v. Irvine, 5 S. E. Rep. 533. In that case this court, speaking through Judge Lacy, held that one who was in the habit of transporting his peddler's wares as baggage, who refused to state that his trunk offered for transportation contained nothing but wearing apparel, has no cause of action for damages for refusing to carry such trunk. And it (the court) held further that a regulation requiring any such auctioneer or peddler to sign a certificate stating that his trunk contained nothing but his wearing apparel was a reasonable regulation. It is sought to distinguish this case from that, and indeed by the mere mode by which the plaintiff seeks to entrap the defendant into furnishing him an excuse for bringing an action for damages, there is a difference between the cases; but it is a difference neither to the credit nor advantage of the plaintiff. In the former case this object was to compel the defendant company to carry his merchandise as mere baggage on the passenger instead of the freight train, and failing in that, to mulct it in damages. In this present case he has adopted another device for making money out of this company. Having first shown the company that his habit was to impose upon them, and to set at defiance their reasonable regulation in regard to the train by | which merchandise freight should be carried, he then brings this same trunk, with nothing in it, so far as the evidence shows, but some old articles of dirty wearing apparel, and insists that it shall be checked, for the patent purpose of having the agent refuse to check it unless he shall sign an affidavit as to its contents, which he has already determined not to sign, and then to make such refusal the foundation for an action against the company. The point of difference however relied upon by the counsel for the plaintiff, as distinguishing this case from the one heretofore decided by this court, is not that to which I have just adverted, but is that in this case an affidavit, and not a certificate as to the contents of the trunk, was required of the plaintiff, and that such a regulation is unreasonable. In answer to this objection it is sufficient to say, that whether such a regulation is reasonable or not-a question which we decline to decide in this case the plaintiff is not in a position to take advantage of that circumstance, for as the evidence produced by himself abundantly proves, he was engaged in an unjust and iniquitous effort to make money out of this company by unlawful means; and in such an effort he can never receive the aid of a court of justice. As the record shows, he had at this very time no less than four suits against this company, of a character similar to one or the other of the cases mentioned herein, and his statement that he was on his way to Marion, to bring away goods that he had there, is utterly disproved by the circumstance, that according to his own testimony, up to the trial of this case, he had never gone to Marion, or brought any goods away from there; nor has he ever shown that he had any goods there. He thus stands convicted of a glaring attempt to make money out of this company by any thing but lawful means, and as we have said before, in such an attempt he can never receive either the countenance or aid of any court of justice. Va. Sup. Ct. App., Aug. 9, 1888. Norfolk & W. R. Co. v. Irvine. Opinion by Hinton, J. RAILWAY FORWARDING GOODS-REASONABLE FACILITIES. An action was brought against a railway company for non-delivery of goods within a reasonable time. The goods, which consisted of poultry in four hampers, arrived at the station at one minute after 11 o'clock, the train by which they were to be forwarded being advertised to leave at 11, so that the goods arrived after the advertised time for starting the train. The porters had to attend to a passenger train which ought to have left at 10:56, but in point of fact did not leave until 11:03. After that passenger train had left, porters came and attended to the plaintiff's goods, which were then weighed and booked and taken to the platform to be placed in the train; but the train, which was eight minutes late in starting, went off before the goods could be placed in it. The goods were then forwarded by the next train at 1:25, and arrived at their destination in the afternoon. They had been ordered by the plaintiff's customers for use on that day, but no notice of that had been given to the defendants. The County Court judge found for the plaintiff, holding that the company were bound to afford reasonable facilities in the way of porters and loading, and that they had not done so; that the eight minutes between the arrival of the goods and the departure of the train was a reasonable time for loading the goods, and that it was immaterial that the goods had arrived late. Held (allowing the appeal and giving judgment for the defendants), that the railway company were not liable, as they had under the circumstances afforded the plaintiff all reason. able facilities for the forwarding of the goods. Q. B. Div., April 16, 1888. Nicholls v. North-Eastern Ry. Co. Opinions by Coleridge, C. J., and Mathew, J. 59 L. T. Rep. (N. S.) 137. CRIMINAL LAW-BURGLARY-EVIDENCE.-Upon an indictment for house-breaking with intent to steal, charging the defendant with entering a mill and stealing a bag of meal, evidence that the morning after the offense tracks were discovered leading from the mill to defendant's house; that the left shoe track disclosed the plain impression of a heel tap, which corresponded with a heel tap on defendant's shoe, nothing appearing to show that the tracks otherwise corresponded; that the defendant, when charged with the offense, and told to hold up his left foot, first held up his right, and when asked to make tracks to be compared with those in the road refused, and declared he would rather pay for the meal than have any trouble in court-is not such proof of guilt, to the actual exclusion of every reasonable hypothesis of innocence, as will warrant a verdict of guilty. Va. Sup. Ct. App., July 19, 1888. Prather v. Commonwealth. Lewis, J., presiding. Lacy, J., dissenting. MAYHEM-WOUNDING PRIVATE PARTS OF FEMALE.-Under sections 4339 and 4347 of the Code the willful and malicious injuring, wounding or disfiguring of the private parts of a female, with the intention of disfiguring the same, is mayhem. The question is whether the private parts of females are protected against wounding or disfiguring, or whether the protection extends to males only. The military or combative importance of the organ injured or destroyed, to which the old common law had special regard, is of no significance whatever as a constituent of mayhem under our Code. Whether capacity for attack or defense has been lessened by the maiming is utterly immaterial and irrelevant. The Code looks not to fighting, to giving and shunning blows, but to maintaining the integrity of the person, the natural completeness and comeliness of the human members and organs, and the preservation of their functions. It is certain that as to every specific organ or member designated by name as the subject of mayhem, both sexes are in cluded. Then why are both not included under the White v. Bailey, 14 Conn. 274: "The writer could not, it is believed, have intended to say that it could not be an escrow, unless the grantee in terms declared he intended it to be such; for a great proportion of persons cannot be supposed even to know the meaning of the term; and it might as well be said that the deed could not operate as such, unless the party declared it to his act and deed, which has often been held to be unnecessary. Thorogood's Case, 9 Coke, 137; Holford v. Parker, Hob. 246. No form of words can be necessary in one case any more than in the other; and the writer must have meant that the evidence must show that the grantor intended it as an escrow, otherwise it would be presumed to be, what it purported to be, his act and deed. For the law is well settled that a deed is delivered as an escrow when the delivery is conditional; that is, when it is delivered to a third person to keep until something be done by the grantee, and it is of no force until the condition be fulfilled." Jackson v. Catlin, 2 Johns. 248-259; Clark v. Gifford, 10 Wend. 310. The intent of the grantor must govern, and this is to be derived from all the facts, circumstances and proof. Nor is it necessary that the condition upon which the deed is delivered in escrow be expressed in writing; it may rest in parol, or be partly in writing and in part oral. The rule that a contract in writing inter partes must be deemed to contain the entire agreement or understanding has no application in such case. Stanton v. Miller, 58 N. Y. 193. Ore. Sup. Ct., April 30, 1888. Gaston v. City of Portland. Opinion by Lord, C. J. INSURANCE CONDITIONS - VACANCY.—A policy of insurance on a dwelling, described as a dwellinghouse, occupied by a tenant, contained a stipulation that it should become void if the property insured became wholly or partially vacant or unoccupied, or oc ESCROW-PERFORMANCE OF CONDITION-DELIVERY. -A deed may be delivered as an escrow to any person other than the grantee, and no express form of words is necessary, but the conclusion may be drawn from all the facts and circumstances. It is elementary that a delivery is essential to the execution of a deed, and until delivered it is no deed. A deed may be delivered as an escrow to any person other than the grantee, and does not become a conveyance so long as it remains in that condition, or until the condition is performed upon which it is to take effect. To make a deed an escrow, it must be delivered to a stranger, to hold until the condition is performed, and then to be delivered to the grantee. Raymond v. Smith, 5 Conn. 559. Shep-cupied for purposes not indicated therein. The tenpard, in his Touchstone, says: "The delivery of a deed as an escrow is said to be when one doth make and seal a deed and deliver it unto a stranger, until certain conditions be performed, and then be delivered to him to whom the deed is made to take effect, as his deed." The author then proceeds to say that the form of words to be used in the delivery of the deed to one who is a stranger to it must be apt and proper, and that it must be after this manner: "I deliver this writing to you as an escrow, to deliver," etc.; implying at least that the word " escrow" must be used in delivering it to make the writing such. And this is the citation upon which the counsel built and pressed his argument. It is best answered by Abbott, C. J., in Murray v. Stair, 2 Barn. & C. 87, where he says: "But if the delivery itself at the time was conditional, so as not to constitute any present obligation, it was an escrow of writing merely, and not a deed; and the conditions of the delivery having been broken, it had never become the deed of the defendant. To make the delivery conditional it was not necessary that any express words should be used at the time. The conclusion was to be drawn from all the circumstances. It obviated all questions as to the intention of the party, if at the time of the delivery he expressly declared that he delivered it as an escrow; but that is not essential to make an escrow.' This shows, as must be applied to the case in hand, that the intention of the parties respecting a delivery is to prevail; and that it is not necessary that there was an express declaration that it was delivered as an escrow to make it such; that if the delivery was conditional so as not to constitute a present operative conveyance it was an escrow, and not a deed. As the deed in question was not delivered to the grantee, but to a third person, the character of the delivery must depend upon the evidence. Said Williams, C. J., in ant had removed from the premises a few days before the fire. The plaintiff lived about one-half mile from the building, and she and her husband, on the next day after the tenant moved out, went to and entered the building, and spent some time in examining it. On the next day the plaintiff returned to the house, cleaned one of the rooms, and continued to do so on each day thereafter, including Friday, the 1st day of October. The house was destroyed by fire on the lastnamed Friday night. When cleaning the house the plaintiff would come over in the morning, remaining until noon. She would then go home, get her dinner, come back in the afternoon, and then returu home in the evening. Plaintiff's father was working near the house, and left at night therein an axe and grub-hoe. The house was not occupied, except as above stated. The building, between the time the tenant left it and the fire, clearly was not occupied as a dwelling-house, and was at least partially vacant. The plaintiff when there, did not live or dwell therein, but her home and residence was a half mile distant. Not only so, but the house, to all intents and purposes, was vacant and unoccupied within the true meaning and intent of the policy. There was nothing left or placed in the house which indicated an intent to occupy it as a dwelling at any time. It is true it had been rented, and a tenant expected to take possession in about two weeks subsequent to the fire, but this is immaterial. The authorities, we think, without a single exception, are in accord with the views above expressed. Dennison v. Insurance Co., 52 Iowa, 457; Sexton v. Insurance Co., 69 id. 99, and authorities cited. See also Fitzgerald v. Insurance Co., 64 Wis. 463; Sleeper v. Insurance Co., 56 N. H. 401; Litch v. Insurance Co., 136 Mass. 491. Counsel for the plaintiff cite and rely on Shackelton v. Fire Office, 55 Mich. 288; Cummins v. Insurance Co., 67 N. Y. 260; Herr man v. Insurance Co., 81 id. 184; Insurance Co. v. Tucker, 92 Ill. 64, and Eddy v. Insurance Co., 70 Iowa, 477. These cases are all clearly distinguishable because of the conditions of the policies, or the facts were materially different from those existing in this case. Iowa Sup. Ct.. Sept. 4, 1888. Fehse v. Council Bluffs Ins. Co. Opinion by Seevers, C. J. CONDITIONS-STIPULATIONS AGAINST WAIVER. A provision in a policy of insurance that "no officer, agent, or representative" of the insurance corporation should be held to have waived any of the conditions of the policy, unless such waiver should be indorsed thereon, held ineffectual to limit the legal capacity of the company to afterward bind itself contrary to the conditions of the policy, by any agent acting within the scope of his general authority. The position taken on the part of the company is that the power of the agent to bind the principal in this particular was, by the clause found at the close of the foregoing extract from the policy, so restricted that he could only do this by a written consent indorsed on the policy; and that, the assured being thus advised of the restrictions upon the power of the agent, the action of the latter was ineffectual to bind the company. It is an important consideration that this policy does not impose any restriction upon the power of any particular agent, or class of agents: nor does it limit the power of some agents by conferring authority exclusively upon others; nor does it prescribe the manner in which alone a particular agent or class of agents shall exercise their authority. We do not therefore express any opinion concerning the effect of such stipulations. The restriction here is so broad that it applies alike to every officer, agent, or representative of this company; " and as a corporation can only act through such agencies, the substance of the provision under consideration is that the company shall not be held to have waived any of the terms or conditions of the policy, unless its waiver be expressed by a written indorsement on the policy. That is to say, in other words, that one of the parties to a written contract, which is not required by law to be in writing, cannot, subsequent to the making of the contract, waive, by parol agreement, provisions which had been incorporated in the contract for his benefit. A contracting party cannot so tie his own hands, so restrict his own legal capacity for future action, that he has not the power, even with the assent of the other party, to bind or obligate himself by his further action or agreement contrary to the terms of the written contract. Insurance Co. v. Earle, 33 Mich. 143. This is self-evident. The clause of this policy relied upon, as expressly restricting the power of the agent whose conduct is here in question, is of that character. 66 If it is effectual at all, as a limitation of the power of future action, it limits the power of every agent, officer and representative of the company, and hence, practically, that of the corporation. It is no more applicable to this particular agent than to all of those to whom the conduct of the affairs of the corporation is committed. In that broad scope, and as applicable to all the representatives of the corporation, it cannot be enforced so as to render inoperative such subsequent action or agreement of corporate agents as would, if it were not for this clause in the contract, be deemed the effectual action or agreement of the corporation. A more restricted application of this clause, making it to refer to this particular agent, or to any particular class of agents or officers, cannot be made; nor can the clause in the former part of the above extract from the policy, as to the effect of vacancy "without notice to the company and consent indorsed hereon," be construed as a limitation upon the power of any particular agent or class of agents. If it applies to any agent or officer, it does to all; and if such a stipulation is not effectual to limit the legal capacity of the corporation as to its future action, it does not limit its capacity to act by its agents. The company then was legally capable, acting through its proper agents, of waiving its right to treat the policy as of no further binding force by reason of the vacancy; and it could also waive compliance with that part of the same provision which related to the consent being indorsed on the policy. Confessedly, the agent whose conduct is in question, had authority to give such consent by indorsing the same upon the policy. When, in negotiating upon this subject with the assured, he did consent, as is established by the verdict of the jury, he was acting as the agent of the company. His action was the action of the company; and the insured having been led to understand, as the agent seems to have done, that the contract should remain in force until further action should be taken, the company is now estopped, as by its own conduct, to claim the contrary. This conclusion finds sufficient support in the following decisions, and in others, although we are aware that there are decisions to the contrary. Insurance Co. v. Earle, 33 Mich. 143; Viele v. Insurance Co., 26 Iowa, 9; Young v. Insurance Co., 45 id. 377; Insurance Co. v. McCrea, 8 Lea, 513; Van Bories v. Insurance Co., 8 Bush. 133; Insurance Co. v. Gusdorf, 43 Md. 506; Insurance Co. v. Norton, 96 U. S. 234; Stolle v. Insurance Co., 10 W. Va. 546; Carrugi v. Insurance Co., 40 Ga. 135; Wakefield v. Insurance Co., 50 Wis. 532; Whited v. Iusurance Co., 76 N. Y. 415; Morrison v. Insurance Co. (Tex.), 6 S. W. Rep. 605. Minn. Sup. Ct., Aug. 17, 1888. Lamberton v. Connecticut Fire Ins. Co. Opinion by Dickinson, J. LANDLORD AND TENANT - RESTRICTIVE COVENANT ANNOYANCE, NUISANCE OR GRIEVANCE-HOSPITAL. A lease of premises in a residential neighborhood in London contained a covenant against carrying on certain specified trades, or any other noisome, obnoxious or offensive trade or business, or doing any thing upon the premises which might be or grow to the annoyance, nuisance, grievance or damage of the lessor or the inhabitants of the neighboring or adjoining houses. The tenant used the premises as a hospital for the treatment of diseases of the throat and various other diseases. Diseases known to be of an infectious or contagious nature were not treated. Held, that the hospital was a grievance within the covenant. The question is whether there is an annoyance, nuisance or grievance, and I think I may drop "grievance," being a very difficult word to construe, and I see no oocasion to make the attempt. I hold that there is a difference between "annoyance" and "nuisance." I concur in the plaintiff's argument that "nuisance" must be legal nuisance. Harrison v. Good, 24 L. T. Rep. (N. S.) 263; L. R., 11 Eq. 338, is an authority for that proposition, and it accords entirely with my view of the proper construction of the covenant, but I cannot accede to the argument that "annoyance" is only another conveyancer's word for "nuisance." I think it would be against the sound canons of construction to give the same meaning to the two words standing side by side, and I rather follow the suggestion that annoyance is a popular word for nuisance, "nuisance" being the legal technical word; annoyance means something which, though frequently called a nuisance, yet is not a nuisance legally and technically, and therefore is popularly, but not technically a nuisance. Then what sort of an annoyance is within the meaning of the covenant? I apprehend that the governing authority on that is Walter v. Selfe, 4 De G. & S. 315, and without quoting again the oft-quoted words which Mr. Barber read from page 322, I refer to page 323, where the vice-chancellor says that the defendants in that case would, if their intended proceedings were prosecuted, "abridge and diminish seriously and mate rially the ordinary comfort of existence to the occupier and inmates of the plaintiff's house." That passage and the other passages which have been read I think explain exactly what is meant by annoyance in such a covenant as this. Now I refer to the one point which, though I thought it desirable to make some remarks on the others, relieves me from further consideration of the case. In Bramwell v. Lacy, 40 L. T. Rep. (N. S.) 361; 10 Ch. Div. 691, Jessel, M. R., had before him an action on a covenant almost in the same language as this-certainly, to my mind, undistinguishable in substance from it. It was a covenant that the lessee would not exercise or carry on on any part of the premises "any trade, business or dealing whatsoever" (there was no limit there to what was noisome or offensive). It went even further, and said, "in the nature thereof" without the consent in writing and so on, "or be party to or suffer any act or thing which may be, or grow to the annoyance, damage, injury, prejudice or inconvenience of the neighboring premises." The words I have in one covenant are "annoyance, nuisance, grievance or damage," and in the other annoyance, damage, injury, prejudice or inconvenience;" the one word "nuisance" is left out, and that for the reasons I have stated can make no difference either way. Jessel, M. R., held there that the hospital, which was one for the treatment of diseases of the throat and chest, was a business, and therefore a breach of the covenant, and that even if it were not a business-not that he doubted it-it was something in the nature thereof, and therefore a breach of the covenant, and he might with propriety (I ought not to say more) have decided that and nothing more, and granted the injunction without considering the rest of the case. I observe that the mas ter of the rolls, before dealing with the business and the nature of the business, stated distinctly his own1 personal view respecting what might be infectious or contagious. He said the hospital was one intended for the treatment of throat and chest disorders, “but it is well known" (this is his own evidence as a man of experience, and few men knew more of every thing than the late master of the rolls) "that there are some throat diseases which are contagious; and moreover it is very possible that a patient on his first visit to the hospital might be found to be suffering from a disease of an infectious or contagious nature, and not from an ordinary throat or chest disease." Then after dealing with the business, and the nature of the business, he says: "The evidence appears to me to be sufficient to show that persons in the neighborhood have already suffered annoyance, inconvenience or injury, and that the possible danger from infection is a matter of which they have a right to complain." The possible danger of infection is what he has already mentioned, and what is referred to in the evidence. In this case I have at least as much evidence as the master of the rolls had, if I may properly accept the statement of the reporter, and what the master of the rolls stated himself. I have here proved that since the hospital has been opened persons have attended at the rate of some fifty or sixty a day, making altogether some 12,000 persons. I have evidence that on three days of the week they are attended for the throat, nose, ear and the skin (I leave out the other days), so that taking it at a rough estimate some half the persons who have attended, some 6,000 persons, in the last fourteen or sixteen months have been attended for diseases of this particular character. Now without quoting the evidence of any particular medical man who has been examined here, it may be assumed that these diseases may be the symptoms of, may lead to or may be the outcome of, infectious or contagious diseases. I suppose few of us are ignorant of what throat diseases not only may but frequently do lead to. The diseases of | the nose and ear which perhaps are not so familiar have been explained to us this morning, and we have been told that they may themselves, particularly the diseases of the nose, be contagious, and they may become indications of some more serious disease of the system. The doctors attending this hospital are strong that the risk is infinitesimal, and they base their opinion upon this, that up to this time they have not observed one single case of infectious disease, or contagious disease among the patients who have attended the hospital. It may be that they have been fortunate; that these patients have not come to them at that stage when they were suffering in such a manner that medical science would detect the presence of infectious or contagious diseases; but having regard to the experience of medical men which has been proved by several witnesses, and to what the master of the rolls says is well known, it is impossible to suppose that, out of these numerous patients coming day by day, some of them shall not be suffering from diseases which, whether at the moment infectious or contagious or not, may develop into a disease of that character, and may on the next visit to the hospital-because one may assume that one visit would not always be sufficient-have developed into a disease either infectious or contagious; and if there are only fifty persous a day three days a week, if there are only 150 persons in the week brought into the immediate neighborhood, some of whom may probably be suffering from contagious or infectious diseases that seems to me to be evidence of the possible danger from infection, and a matter of which the neighbors have a right to complain. As far as I can judge of the evidence in Bramwell v. Lacy, ubi sup., there is quite as strong evidence here as there was there, and I cannot but think that in their anxiety to uphold the hospital the doctors and members of the staff have gone rather far in support of their theory, and beyond what common experience has taught other medical men. I think there has been a breach of covenant in this; that the defendant in establishing and carrying on this hospital has brought into the neighborhood a possible danger from infection sensibly larger than that which exists, as it always does exist, in the London streets. He has brought that possible danger nearer to the homes of the persons the plaintiffs are seeking to protect, and in an increased form. I think that is a breach of the covenant. I think that is an annoyance or grievance. I simply hold it to be a grievance within the meaning of the covenant, and I think I should be disregarding the authority of Jessel, M. R., if I did not so hold. Ch. Div., May 16, 1888. TodHeatley v. Benham. Opinion by Kekewich, J. 59 L. T. Rep. (N. S.) 25. MARRIAGE - DOWER-CONVEYANCES IN FRAUD OF WIFE. A widow is not entitled to dower in lands conveyed by her deceased husband, a few hours before his marriage, without her knowledge, to his son by a former wife, where it appears that he had long before promised the land to the son upon consideration of his working it, and that the son had gone upon the land and made valuable improvements, the circumstances rebutting the inference of fraud. There are cases which hold that a man, pending an engagement of marriage, and at any time prior to the marriage, has the right to convey his real estate away without the knowledge of his wife, and even for the purpose of defeating her dower, and that the rule which entitles him to treat such a conveyance by the woman as a fraud on his marital right does not apply as against him in her favor. The weight of American authority treats both alike, and we see no reason why they should not be so treated. The rule however is not absolute. It does not entitle the wife to treat every conveyance made by her husband secretly on the eve of marriage, as a fraud on her right. There may be good reason for the conveyance. It may be the husband's duty to make it. The general doctrine is that the dower right is subject to every lien or incumbrance at law or in equity existing before it attaches. In accordance with this doctrine it has been frequently decided that such a conveyance, made for the purpose of carrying out a previous valid contract of sale, is good against a claim of dower. The right of dower, it has been said, arises only on the title of the husband, and cannot be higher or more extensive. In Firestone v. Firestone, 2 Ohio St. 415, the husband, before marriage, agreed, for consideration partly good and partly valuable, to convey land to his son, who paid the valuable consideration, and took possession, and it was held, under a conveyance to the son after marriage, that no right of dower attached as against his equity. In Oldham v. Sale, 1 B. Mon. 76, the contract was oral, and the vendor an infant, but, the vendee having paid the price, it was held that his conveyance, at full age, after marriage, was effectual to exclude the widow's right of dower, "because," say the court, "when she married him, another person was beneficially seized of the lot under a contract which, though voidable by him, he was under no sort of obligation to her to avoid, but had a clear right to coufirm, and was morally bound to effectuate in good faith." In Gaines v. Gaines, 9 B. Mon. 295, 298, the court expressed the opinion that the principle would likewise apply "to a bona fide gift made before coverture to a child by a former {marriage, who takes possession and improves the land under the gift, claiming it as his own before the coverture, and receives a conveyance from the husband afterward." And see Littleton v. Littleton, 1 Dev. & B. 327, 331; McIntosh v. Ladd, 1 Humph. 459; Miller v. Wilson, 15 Ohio, 108; 1 Scrib. Dower, 591-595; Thayer v. Thayer, 14 Vt. 107; 39 Am. Dec. 211, and note. We think that in the case at bar the circumstances clearly rebut any inference that the services rendered by the defendant after he came of age were regarded by either him or his father as gratuitous. We have no doubt that if the father had died before giving him possession of Black Rock farm, or making the conveyance, a jury, on an action by him against his father's estate for compensation, would have rendered, and rightly, a verdict in his favor. There was, then, when the father put the son in possession of the farm, agreeing to give him a deed of it, a valuable consideration for the agreement; and when the son, relying on the agreement, entered into possession and made what was for him large expenditures for improvements, it became in the highest degree equitable and just for the father to keep faith with him by carrying his agreement into effect. Indeed, we have no doubt that if he had refused, the son could have maintained a suit against him for specific performance; though, according to Oldham v. Sale, supra, it is not necessary that such a suit should be maintainable to justify the conveyance. The only reprehensible feature which we find in the transaction is the non-disclosure of it to the complainant before the marriage; but we are of opinion that in the circumstances, this is insufficient to entitle her to dower on the ground that the conveyance was a fraud upon her right. R. I. Sup. Ct., July 17, 1888. Champlin v. Champlin. Opinion by Durfee, C. J. MASTER AND SERVANT-ASSUMPTION OF RISK-LOW RAILROAD BRIDGE.-A brakeman on a night so dark that he could not see around him, at the request of the engineer in charge of the train, went to the top of a car to set the brakes, as was his duty, and without any fault of his own, was knocked off the car and seriously injured, by his head coming in contact with a bridge, built by the defendant company so low as not to allow a man on the top of a car to walk and stand erect. The brakeman had no knowledge or express notice of the dangerous nature of the bridge, or any opportu nity of finding out its dangerous character. Held, that he was entitled to damages against the defendants, as on entering their service he did not assume risks of unusual danger of which he had no knowledge, or was bound to take notice. Ind. Sup. Ct., March 23, 1888. Louisville, N. A. & C. R. Co. v. Wright. Opinion by Zollars, J. NEGLIGENCE-DEATH BY WRONGFUL ACT -DAMAGES-PAIN.-The fact of death by drowning, especially in stagnant, muddy and slimy water, is sufficient, without other evidence, to sustain a finding by the jury that the deceased suffered pain. Neither is there any place for the defendant's contention that "there was an entire absence of legal testimony tending to show that the deceased did not die instantaneously, and entirely without pain or suffering." Accurately speaking, there is no such thing in any case as death happening simultaneously with the injury causing it, and still less in cases of drowning; and the fact that the death of the intestate was so caused, and that too "in stagnant, muddy and slimy water," must be regarded as affording competent evidence from which the jury might legitimately infer, not only that his death was not instantaneous, but that it was attended with both physical and mental pain and suffering. The testimony neither of eye-witnesses nor of experts was indispensable to the recovery of damages by the plaintiff, as contended by the defendant. When a material fact is not proved by direct testimony, it may be inferred by the jury, if there is a case for them, from the facts which have been so proved, even though the inference be not a necessary one. It is their province to draw proper inferences from such facts, and if, in the exercise of this right, they conclude that the fact in controversy is established, it is as properly proved as if by direct testimony. Com. v. Doherty, 137 Mass. 245, 247. And even if the eye-witnesses had been produced at the trial who saw the deceased while drowning and noted his apparent condition, it would be an inference only upon the question of the extent and duration of his pain and suffering; and so would it be with the opinions of experts. If therefore all had been done which the defendant contends should have been done to entitle the plaintiff to a recovery, nothing would have been proved by direct testimony; and if there had been, the facts so proved would have been no more competent evidence for the consideration of the jury than those found by them to be proved inferentially from the uncontroverted cause and manner of the intestate's death, because "a fact proved by a legitimate inference is proved no less than when it is directly sworn to." Doyle v. Railroad Co., 145 Mass. 386. N. H. Sup. Ct., March 16, 1888. Clark v. Manchester. Opinion by Blodgett, J. SPECIFIC PERFORMANCE-CONTRACTS ENFORCEABLE -MISTAKE.-Plaintiff made an offer to defendant's agent, with power to sell for cash, to buy land at a certain price, part cash, and the balance in short payments, on the making of a perfect title. The agent telegraphed the offer to the owner, without stating as to title, and he replied, accepting it. The land was at the time leased for a year, and the owner had no patent therefor, but only a final receiver's certificate, having taken it up under the Timber Culture Act, all of which was known to the defendant's agent. Plaintiff refused to accept the title, but tendered the cash payment according to his offer, and on its refusal deposited it in bank. Defendant's agent also tendered back to plaintiff the check he had deposited as a forfeit when making his offer, and told him he need not take the land. Held, that there was an evident misunderstanding as to title, and that the contract should equitably have been abandoned when it was first dis |