McLeod, supra, the stipulation was merely that the plaintiff would, "by means of all legitimate importunity and submission of evidence, to prevent the passage of any law," etc. But none of these stipulations were sufficient to save either of such contracts from the condemnation of the respective courts. Where the principal object and purpose of an agreement is to secure, by a promise of compensation contingent upon success, influence upon or with members of a Legislature, or executive or other public official, it is noue the less vicious in its tendencies because it is therein stipulated that such influence shall be "reasonable and proper." The precise point is that such agreement, for such purchase of influence, is against public policy, and therefore improper.

There is another consideration which has generally made courts more emphatic in condemnation of such contracts, and that is that the agreement for compeusation is made contingent upon the success of the legislation or other object sought. This is illustrated and held in several of the cases cited. Since it is established that such contingent reward makes such contracts more vicious, it certainly follows that the vice becomes more enormous as the amount of the reward is increased. In the case at bar the share of the land grant contracted for is alleged to be half a million dollars, to say nothing of the lease and other rights contracted for. If such contract for one-fourth of the grant is valid, then upon the same principle, we assume, it would be claimed to be valid if it had been for threefourths or even nine-tenths of the grant. In bestowing the grant the Legislature were executing a trust upon the State by Congress. The Legislature had no power to pervert that trust, nor any part of it, even for the benefit of the State, much less for the benefit of a railway corporation upon which no part of the grant had ever been conferred, and which owed no duty in the construction or operation of the road in aid of which it was granted. The object of such grant was not only to aid in such construction, but to insure its continued operation. But to sanction such a contract 80 perverting one-fourth of the grant might, in a supposed case, leave the constructing company insolvent, and without any ability to successfully operate the road. Since the intention of the Legislature is only ascertainable from the grant itself, it necessarily follows that they intended to bestow the grant on the Omaha company alone. To sanction the contract therefore would be to defeat the expressed intention of the Legislature, and to allow the parties to the contract, in advance of the construction of any portion of the road, to parcel out the grant to suit themselves, when as a matter of fact and law, the trust could only be executed by the Legislature itself in the name of the State, as a naked trustee acquiring all its power to act at all directly from Congress. Of course it was competent for either of these corporations to refrain from applying to the Legislature for the grant, but the reasons already given, as well as the authorities here cited, preclude any binding contract for such compensation for so refraining. It has frequently been held that such a contract is against public policy, and therefore void. Pingry v. Washburn, 1 Aik. 264; Gulick v. Ward, 10 N. J. Law, 87; Gibbs v. Smith, 115 Mass. 592; Gray v. Hook, 4 N. Y. 449; Atcheson v. Mallon, 43 id. 147. Some of the cases eited in this opinion lay stress on the fact that the claimant for compensation was or was not a member of the legal profession. A lawyer, engaged in the business of drawing petitions and bills, collecting and presenting evidence and facts by argument or otherwise, before committees or the Legislature itself, may undoubtedly contract for compensation for such services. In such cases the attorney openly appears to all as the representative of the interested party, and no one is likely to be deceived as to his motives or representative character. But a

non-professional, incapable of rendering such services, stands in a different attitude. If such a person engages to procure or aid in the procuring of the passage of a bill, he necessarily contracts for lobby services. "A person who frequents the lobby of a house of legislation, for the purpose of influencing measures therein pending, is a "lobby member." Webst. Dict. To "lobby" is for a person, not belonging to the Legislature, "to address or solicit members of a legislative body, in the lobby or elsewhere, away from the house, with a view to influence their votes." Id. Of course, the Chippewa company, and especially the St. Paul company, as common carriers, have been of immense service in developing the resources and increasing the value of property in our State. As such common carriers, they were necessarily interested in the creation and successful operation of a new railway like the one in question. They and their respective officers and employees, as citizens of the State had the same interest in the enterprise that citizens in general had, and probably more than part of them. Still we are to remember, that at the time of making the first contract, neither of those companies, nor the Omaha company, had any legal right, title or interest in or to the portion of the land grant in question, and were as strangers to the then proposed legislation. True, either or any other railway company was at liberty to apply for the grant, but the Legislature, in its wisdom, was perfectly free to refuse or grant such application. The grant was to the Omaha company alone. Neither of the other companies is in any way connected with it, unless it be by virtue of the contract in question. If then they are entitled to any portion of that grant, it is by reason of the agreement therein to make the efforts, give the aid and assistance, and render the services stipulated in procuring said land grant to be given the Omaha company. But what efforts could they make, what aid or assistance could they give, what services could they render, except such as are justly characterized as “lobbying?" If one railway company may thus legally contract with another railwaycompany for contingent compensation in consideration of such efforts, aid, assistance and services, then it may make similar contracts with private individuals or municipal or other corporations, asking legislative action. If corporations could so legally contract, then it would be competent for individuals to do the same. We are not stating what is likely to occur, but what would be the probable tendency of sanctioning the validity of such a contract. Besides, the powers of every corporation are limited to such as are expressed in its charter or named in the statutes, and such implied powers as are necessary or convenient to carry into execution those which are thus expressed. It is enough to know that these do not include the making of lobbying contracts for contingent compensation for procuring legislation respecting matters in which such corporation has no more concern than the people generally. In the matter of disposing of land grants, as in all other matters of legislation, it is important, to the continued welfare of the State and all its citizens, that all improper avenues of approach should be effectually closed. In two of the cases cited Mr. Justice Field, speaking of the duties of members of legislative bodies and public officers, asserts what ought to go without saying, that "all such positions are trusts, to be exercised from considerations of duty and for the public good. Whenever other considerations are allowed to intervene and control their exercise, the trust is perverted and the community suffers." He then declares, in effect, that personal influence in such matters is "not the subject of bargain and sale," that it "is not a vendible article in our system of laws and morals, and the courts of the United States will not lend their aid to the vendor to collect the price of the article." 103 U. S. 273, 274; 2

Wall. 56. These maxims of legislative and official propriety and duty, it is believed, are as old as our government, and it may be safely assumed that they will never be brought into disrepute by the American courts. To properly aid in wielding the sovereign power of a great people, under the sanction of an oath, presupposes freedom from any and all extraneous bias and purchased influence. They imply continued vigilance for the public weal and the faithful performance of every public duty. In the execution of such official trusts, no favors can be secured and no obligations incurred.

For the reasons given we must hold the contract void.

NEW YORK COURT OF APPEALS ABSTRACTS.

ABATEMENT AND REVIVAL-DEATH OF PARTY.—(1) An action to recover the amount of a claim against a manufacturing company, on the ground of the failure of defendant, as its trustee, to make and file an annual report as required by the New York Manufacturing Act of 1848, is a penal action, which would abate on the death of either party before verdict. Stokes v. Stickney, 96 N. Y. 323; Brackett v. Griswold, 103 id. 425; Blake v. Griswold, 104 id. 613. (2) But where defendant in such action dies after judgment in favor of plaintiff has been reversed in the General Term, and an appeal therefrom been taken by plaintiff, plaintiff is entitled to have defendant's representatives substituted, and the appeal determined, though there cannot be a new trial. Wood v. Phillips, 11 Abb. Pr. (N. S.) 1. (3) Code of Civil Procedure of New York, section 764, providing that after verdict in an action, for personal injury, the action does not abate, etc., does not control such a case, but has reference to the death of party after verdict, and before judgment. ham v. Hilton, 111 id. 188. Jan. 14, 1890. Carr v. Risher. Opinion by Earl, J.

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ACTION HUSBAND AND WIFE- SERVICE OF SUMMONS. Before 1848, service of summons in an action to foreclose a mortgage given by a husband and wife on land of the husband was sufficient if made on the husband, to bar the wife's dower interest, though she was an infant. The only interest which the plaintiff had was an inchoate right of dower in the mortgaged land. That arose simply from her status as wife, and gave her no separate estate. Chancellor Kent stated the rule in Ferguson v. Smith, 2 Johns. Ch. 139, to be "that the service of a subpoena against husband and wife on the husband alone is a good service on both; and the reason is that the husband and wife are one person in law, and the husband is bound to answer for both. * * * But where the plaintiff is seeking relief out of the separate estate of the wife it has been deemed necessary in a late case (Jones v. Harris), 9 Ves. 488, that the wife should be served." See also Leavitt v. Cruger, 1 Paige, 422. This is the exception to the rule, which required personal service upon an infant defendant. The merger of the legal identity of the wife in that of the husband is not affected by the question of her age. The legal unity is not dependent upon the fact of the wife's majority. Therefore, wheu service was made upon the husband, in accordance with the rule then in force, the court acquired jurisdiction to proceed against both. The theory of the chancery practice was to secure jurisdiction over the person of the infant defendant; and it was effected, in all cases except in that of an infant wife, by a personal service of the writ. Thereupon the infant was bound to appear, and to have a guardian appointed. In case of his neglect to do so, and of no application in his behalf, the court would proceed to make the appointment

of itself, or when set on motion by complainant. Hind Pr. tit. "Appearance; " 1 Barb. Ch. Pr. 127. But in the case of au infant wife, and where her separate property was not the subject of the proceeding, no guardian was necessary; for the husband was bound to appear for both, through his solicitor, and to put in a joint answer. If she refused to join in the answer, the husband could show the fact of her refusal, and would be permitted to answer separately. Upon this subject I may refer to the cases of Foxwist v. Tremaine, 2 Saund., at page 213; Chambers v. Bull, 1 Austr. 269: Ferguson v. Smith, supra, and Leavitt v. Cruger, supra, and to the works on chancery practice. In Foote v. Lathrop, 53 Barb. 183, a wife sought to avoid a judg ment of foreclosure and sale taken against her in 1857 on the ground that she was then confined as insane, and was not personally served with process. Marvin, J., speaking for the General Term in the case, in sustaining the order denying her motion, relied solely on the cases of Ferguson v. Smith, supra; Leavitt v. Cruger, supra, and Eckerson v. Vollmer, 11 How. Pr. 42. Jan. 14, 1890. Feitner v. Lewis. Opinion by Gray, J. Reversing 1 N. Y. Supp. 1.

APPEAL-FALSE REPRESENTATIONS-DAMAGES.- (1) In an action for false representations, inducing the purchase of certain stock, where an instruction as to the measure of damages erroneously assumes that the value of the stock is not in dispute, the error may be taken advantage of under a general exception, without specifically requesting a submission of the question of value to the jury, the right to have it submitted not having been waived. (2) Where the evidence as to the value of the stock is conflicting, the question should be submitted to the jury; and it is error to charge that the measure of damages is the amount paid for the stock, with interest, on the assumption that it is worthless, even though plaintiff offers to restore it. The action was plainly one for deceit, and the measure of damages in cases of that character is full indemnity for the loss sustained. The representations inducing the purchase being false in fact, must be made good in their pecuniary consequences. Accordingly the party defrauded is entitled to be made pecuniarily as well off as if the representations had been true, and this is accomplished by allowing to him as damages a sum of money equal to the difference between the value of the property as it was in fact, and the value as it would have been if the representation had been true. Krumm v. Beach, 96 N. Y. 398-406; Whitney v. Allaire, 1 id. 305. A person who has been induced by fraudulent representations to become the purchaser of property has, upon discovery of the fraud, three remedies open to him. He may rescind the contract absolutely, and sue in an action at law to recover the consideration parted with upon the fraudulent contract. To maintain such an action, he must first restore, or offer to restore, to the other party, whatever may have been received by him by virtue of the contract. Gould v. Bank, 86 N. Y. 75; Thayer v. Turner, 8 Metc. 550; Evans v. Gale, 17 N. H. 573. He may also bring an action in equity to rescind the contract, and in that action have full relief. Allerton v. Allerton, 50 N. Y. 670. Such an action is not founded upon a rescission, but is maintained for a rescission, and it is sufficient therefore for the plaintiff to offer in his complaint to return what he has received, and make tender of it on the trial. Lastly, he may retain what he has received, and bring an action at law to recover the damages sustained. This action proceeds upon au affirmance of the contract, and the measure of the plaintiff's recovery is the difference between the value of the article sold and what it should be according to the representations. Krumm v. Beach, supra. As already stated, this action was of the latter class. No equitable case was made by the complaint, and no

quit at Candlemas. He entered accordingly, and paid rent. A notice was served upon the tenant September 22, 1792, to quit on Lady Day. In ejectment brought against him, it was claimed on the part of the lessee that his holding was from Candlemas, and therefore the notice was ineffectual to terminate the tenancy. Lord Kenyon, in deciding the case, said and held that "it was agreed that the defendant should quit at Candlemas: and though the agreement is void as to the number of years for which the defendant was to hold, the lessor chose to determine the tenancy before the expiration of the seven years, he can only put an end to it at Candlemas." That case has in several instances been cited by the courts of this State upon the question of the force remaining in the terms of the agreement embraced in a void lease. And in Schuyler v. Leggett, 2 Cow. 663, it was remarked by Chief Justice Savage, in citing it, that such an agreemeut must regulate the terms on which the tenancy subsists in other respects; as the rent, the time of the year when the tenant must quit," etc. And the citation was repeated to the same effect by the chief justice in People v. Rickert, 8 Cow. 230. The question here did not arise in either of those two cases, nor can they be treated as authority that the time for termination of a tenancy from year to year, in any year other than that of the designated expiration of term, is governed by such designation in a void lease for more than one year rather than by the time of entry. The effect sought to be given in the present case to the case of Doe v. Bell is not supported by English authority. In Berrey v. Lindley, 3 Man. & G. 498, the tenant entered into possession of premises under an agreement void by the statute of frauds, by the terms of which he was to hold five years and a half from Michaelmas. Several years after his entry, and after expiration of the period mentioned in the agreement, the lessee gave notice to his landlord to terminate the tenancy at Michaelmas. It was there contended on the part of the latter, and Doe v. Bell was cited in support of the proposition, that the time designated in the agreement for the termination of the tenancy governed in that respect. But the court decided otherwise, and held that the notice was effectual to terminate the tenancy. The views of the court there were to the effect, that although the tenancy was from year to year, the tenant might without notice have quit at the expiration of the period contemplated in the agreement, but having remained in possession and paid rent subsequently to that time, he must be considered a tenant from year to year with reference to the time of the original entry. The same principle, in respect to holding over a term, was announced in Doe v. Dobell, 1 Adol. & E. (N. S.) 806, where it was said that "in all cases the current year refers to the time of entry, unless the parties stipulate to the contrary." The doctrine of the English cases seems to be that a party entering under a lease, void by the statute of frauds, for a term, as expressed in it, of more than one year, and paying rent, is treated as a tenant from year to year from the time of his entry, subject only to the right to terminate the tenancy without notice at the end of the specified term; and to that extent, and for that purpose only, the terms of the agreement in such case regulate the time to quit. This right is held to be reciprocal. Doe v. Stratton, 4 Bing. 446. That proposition is not without sensible reason for its support. The lease for more than one year, unless made in the manner provided by the statute, cannot be effectual to vest the term in the lessee; yet in other respects the rights of the parties may be determined by its terms, so far as they are consistent with its failure to create any estate or interest in the land, or any duration of term for occupancy by the lessee, and that principle is properly applicable to such leases. Porter v. Bleiler, 17 Barb. 154; Reeder v. Sayre, 70 N. Y. 184; Laughran

v. Smith, 75 id. 205, 209. This view does not aid the defendants. They become tenants from year to year as from the time of their entry; and although, by virtue of the terms of the agreement in that respect in the lease, they may have been at liberty to quit on the 1st of August, 1886, if they had remained until then, such time in that or the year previous could not be treated as the end of any year of the tenancy. The defendants having entered upon the second year from the time of the original entry, it was not within their power to terminate their relation or liability as tenants until the end of the then current year, which did not terminate until the 1st of March was reached. Second Divison, Jan. 14, 1890. Coudert v. Cohn. Opinion by Bradley, J.

TAXATION-EXEMPTION-RELIGIOUS SOCIETY.-It is only an incorporated religious society which is entitled to the benefits conferred by the act of New York of 1852, chapter 282, section 1, providing that the exemption from taxation of a school-house or building for public worship shall not apply to any such building in the city of New York, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society. The provision above quoted is not happily worded, and its precise scope and meaning are not entirely clear; and its language has given some trouble to those who have had to deal with it. Association v. Mayor, etc., 38 Hun, 593. It was apparently the purpose of the act of 1852 to limit and confine in the city of New York the exemptions contained in the Revised Statutes, and not to extend them; and hence the qualifying words, "exclusively used for such purposes, and exclusively the property of a religious society," were added. But without undertaking to give a precise construction to these quali fying words, we think this, at least, is clear: that before a school-house can be exempted it must belong to the public school system of the city, or be "exclusively the property of a religious society." We have therefore only to determine whether this school-house belonged to a religious society. We will assume that it belonged to the society at the time called the "Church of St. Monica," although the legal title was held either by the insurance company or Father Dougherty. But that was an unincorporated society, and not, we think, such a society as the law-makers meant to include in the words "religious society," used in the act of 1852. They evidently had in mind religious societies incorporated under the act of 1813, entitled an act "to provide for the incorporation of religious societies," or under some one of the other numerous acts for the same purpose. The words "religious society," when used in the laws of this State, as they frequently are, generally have reference to an incorporated religious society. It cannot be supposed that it was the legislative intention that any number of persons could come together for some religious purpose and set up a school, and then claim the exemption. In using the words "religious society," it is most probable that the law-makers had in mind some legal entity capable, as such, of taking and holding property, and popularly known as a "religious society." Jan. 14, 1890. Church of St. Monica v. Mayor, etc., of the City of New York. Opinion by Earl, J.

VENDOR AND PURCHASER-TITLE-COVENANTS.—(1) A mutual covenant by the owner of a lot with the adjoining owners, that twelve feet in front of each of their lots shall not be built upon, but shall be left open for court-yards, constitutes an incumbrance on the lot, and if it impairs its value, it will excuse specific performance of a contract for the purchase of the lot, which was to be conveyed free and clear of all incumbrances. Lattimer v. Livermore, 72 N. Y. 174; Trustees v. Lynch, 70 id. 440; Insurance Co. v. Insurance Co., 87 id. 400; Perkins v. Coddington, 4 Robt. 647. (2)