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done upon them or either of them, or upon any income arising therefrom, or upon any property whatsoever the use of which duriag said term is hereby agreed to be furnished to the party of the first part, or which may be charged against or imposed upon the said party of the second part (the St. Louis, Alton and Terre Haute Railroad Company,) its successors or assigns, for or on account of its or their ownership of said railroads, or either or any part of either thereof, or of such property or any part thereof; provided, however, that nothing in this contract contained shall be so construed as to render the party of the first in any way liable for the tax specifically upon the income of the holders of the bonds or stocks of the party of the second part."

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Under this lease the complainant took possession of all the property connected with or essential to the business of the principal line and Alton branch of the lessor. Some doubt having been expressed as to the validity of the lease under the laws of Illinois, an act of the General Assembly of that State. approved March 11th, 1869,directs that the lease "be and stand confirmed according to the terms" thereof; and the second section provides: "The said lessees, their associates, successors, and assigns, shall be a railroad corporation in this State under the said style of "The Indianapolis and St. Louis Railroad Cmpany," and shall possess the same or as large powers as are possessed by said lessee corporation and such other powers as are usual to railroud corporations. Said Indianapolis and St. Louis Railroad Company may and are hereby authorized to extend said line or road from any point on the same between the cities of Pana and Litchfield, on the said road, or from either of said points, westward to the Mississippi river, opposite Louisiana, or any point below, not exceeding 15 miles, in the State of Missouri, with a branch thereof to the City of Quincy, in the State of Illinois, and the same to connect with the railroad bridge over said river at said City of Quincy."

At its annual meetings in 1873, 1874 and 1875 the State Board made assessments upon the capital stock and franchises

of the various railroad companies of the State over and above their tangible property respectively. Having ascertained the fair cash taxable value of the capital stock, including the franchise of the St. Louis, Alton and Terre Haute Railroad Company, without any reference to the lease made by the latter, it fixed the sum of $2,918,184, $1,125,139 and $1,004;416 as the proposition of such valuation which should be distributed for the years 1873, 1874 and 1875, respectively, to the counties on the line of the leased railroads, assigning to each county, in conformity to the rule prescribed by the statute, such proportion of those annual assessments as the length of line in such county bore to the entire length of the leased railroads in the State. The assessment thus distributed to the several counties through which the leased railroad passed were charged to the Indianapolis and St. Louis Railroad Company. The balance of the assessment upon the capital stock and franchises was distributed to the counties upon the lines which the St. Louis, Alton and Terre Haute Railroad Company operated, and were charged directly against it. While on the part of the capital stock of the present Company, it is evident, as the Court think, that the intention was to levy the warrants upon sueh of the leased property as could be seized for the payment of taxes under the laws of the State, Whether the assessment and intended levy were in accordance with the State law are the essential questions in the case, and the decision is that they were, and the decree is affirmed; the case disposing also of No. 891.

Mr. Justice Harlan delivered the opinion.

THE CIVIL DAMAGE LAW.

The Statute of Ohio known as the civil damage law, the provisions of which have been incorporated into the statute law of many other States, provides that every "person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication" of any person, shall have a right of action against the one

selling or giving the liquor causing the intoxication, or owning the premises on which it is sold or given. In Davis vs. ·Justice, 31 Ohio, St. 359, the Supreme Court of Ohio holds that under this statute damages resulting from the intoxicated person cannot be recovered. In this case, liquor was sold to the husband of plaintiff below, and the intoxication therefrom caused him to be killed by a train of cars. By the common law it is clearly settled that actions for personal injuries abate by death, and cannot be revived or maintained by the executor or by the heir. In Baker vs. Bolton, 1 Campb, 493, which was an action for injuries to the plaintiff, and his wife from which she died it is said: "The jury could take into consideration the bruises which the plaintiff himself had sustaned, and the loss of his wife's society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution. In a civil court the death of a human being could not be complained of as an injury; and in this case the damages as to the plaintiff's wife must stop with the period of her existence." Before this case the books of the common law show no instance in which such damages were claimed, and the doctrine of the case was unquestioned until 1873, when it was by the plaintiff, in Osborn vs Gillett, L. R.,8 Exch, but it was reaffirmed. To give such right of action there must be express statutory authority. Canning vs Williamstown, I Cush. 451; Whelford vs Panama R. R. Co., 23 N. Y. 465. In Mobile Life Ius. Co. vs Brame, 95 U. S. 754, it is said: "The authorities are so numerous and so uniform to the proposition that by the common law, no civil action lies for any injury resulting in death, that it is impossible to speak of it as a proposition open to question. And as the Court in the principal case says, that if to the creditor or heir, the law affords no remedy for pecuniary injury resulting from death, it is difficult to see why it should be allowed to one sustaining another relation to the deceased.

New York Supreme Court.

LEVI W. HALL, Respondent, v. JOSEPHINE F. CROUSE Adm'r'x, et al, impl'd Appellants.

MORTGAGE.-Parol evidence is admissible to show the object of a mortgage and the amount of advances upon it; and also to show that it was given to secure a party not named therein.

Although a mortgage given to secure further advances or services is valid, even when it does not express the object, yet advances made, or services rendered after the attaching of a subsequent lien by mortgage or judg ment, are subject to the priority of the latter lien.

A mortgage given by a client, to secure his attorney for past and future servi ces, is a valid security,

Appeal from judgment in favor of plaintiff, entered upon report of referee.

Action to forclose a mortgage executed by one Clary to plaintiff, as collateral to a bond of the same date. Appellant's intestate was a subsequent judgment creditor of Clary, and defendant on the ground that the mortgage was fraudulent and void as against creditors of the mortgagor. Upon his death, appellants were substituted as defendants in his place.

The bond and mortgage were conditioned for the payment of the sum of $1,000 in the three months from its date with interest.

At the trial, plaintiff offered parol evidence to show that the bond and mortgage were executed to secure plaintiff and Isbun N. Ames, for any legal services which had been, or might be rendered by them or either of them for Clary. An objection to this offer was overruled, and the evidence received.

Held, That if there was any error in this ruling, it was merely as to the order of proof; that it was not prejudical to defendant, as he was thereby advised of the strength of plaintiff's proof on the issue of consideration before he entered on his own.

It was claimed by appellants that, as nothing appears in the mortgage to show that it was intended as a security for future services, it is void against creditors so far as it was intended to cover such services.

Held, Not tenable. It is well settled in this State, that a mortgage may be executed, or judgment confessed as security for future advances, in whole or in part, made pursuant to a contemporaneous agreement, and will be an effectual security for such advances against subsequent incumbrancers having notice of the judgment or mortgage. It is necessary, however, that the agreement should give all the requisite information as to the extent and certainty of the contract, so that a Junior creditor may, by inspection of the record and by common prudence and ordinary diligence, ascertain the extent of the incumbrance. Parol evidence is competent to show the object of mortgage or judgment, and the amount of advances upon it. 6 N. Y., 147. Where, however, a mortgage is given to secure advances, the omission to state in it the object, subjects it to suspicion, and the holder will be put to strict proof of the payment of the consideration. 2 Sandf. Ch., 78. It was also competent to show by parol that by an agreement at the time between the parties to the mortgage and Ames, a part of the consideration was the services of Ames; in other words, that as to such part, plaintiff received the mortgage in trust for Ames. The evidence did not tend to contradict the mortgage, 5 Barb., 153; and the mortgage was a valid security for the services of Ames, as well as those of the mortgagee, to the extent of the lien expressed in it.

Also held, That the agreement in this case was merely one made by a client to secure his attorney and counsel for past and future services. We are not aware of any rule of law in this State which is violated by the agreement, or of any case in this State holding that such an agreement is void. That the client executed the mortgage voluntarily, understanding its import, and that he has received the value of the amount reported due upon it, is obvious from the evidence and the findings of the referee. To that extent it is a valid security. Merritt vs Lambert, 10 Paige, 352; 2 Den., 607 disting

uished.

The referee found that services had been rendered by plaintiff and Ames of the value of $745; and that that amount

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