The recorder's court has no clerk other than the recorder himself. Accordingly in the attestation of the copy of William Dean's declaration of intention, the signature of "Edwin J. Cram, recorder," by the very terms of the act, is presumptive evidence that he was acting instead of the judge in some of the contingencies named in the act. The process of naturalization, in the mode it is required to be performed by the Federal statutes, is a judicial act. Spratt v. Sprutt, 4 Pet. 393. And the importance and value of this privilege of citizenship, which is conclusively and finally bestowed by the act of the court having jurisdiction, should prevent us from allowing less than its full weight to any requirement by Congress which tends to restrict this power to those tribunals which may be supposed most competent to exercise it. Certainly there would seem to be no propriety in intrusting to a court which, in the exercise of its common-law jurisdiction, cannot pass finally on any matter of law or fact affecting property to the amount of $1, to make a final decision upon all questions of law or fact involved in an application for this great right, so as to make an absolute and unimpeachable grant of it." Curtis, J., in Ex parte Craig, above cited. We are accordingly of opinion that the Municipal Court of the city of Biddeford, January 24, 1888, did not have a clerk within the intent and meaning of the Federal statute, and therefore had no jurisdiction over applications for naturalization and no authority to receive and record the declaration of intention made by William Dean. The application for admission to citizenship was properly dismissed. Exceptions overruled. PETERS, C. J., WALTON and VIRGIN, JJ., concurred. LIBBEY and HASKELL, JJ., concurred in the result. MARRIED WOMEN - CONVEYANCE-COVENANT-ACKNOWLEDGMENT. NEW YORK SUPERIOR COURT, GENERAL TERM, MAY 4, 1891. BRADLEY V. Walker. A covenant was signed by defendant's grantors and others, in 1846, whereby they agreed to reserve an open space in front of certain lots, and not build thereon. One of the grantors was a married woman, and the covenant was not acknowledged by her separate and apart from her husband, as was then required by 1 Revised Statutes, 758, §10, for all conveyances by married women. Held, that the covenant was not a conveyance within the meaning of the statute. A PPEAL from an order made at Special Term, Feb ruary 9, 1891, vacating an ex parte injunction theretofore obtained forbidding the violation of a covenant, and denying an application to continue said injuuction pendente lite. G. W. Cotterill, for appellant. MCADAM, J. The covenant was not a conveyance within the statutory meaning of that term, respecting the acknowledgment of conveyances by married 1 R. S. 758, § 10. It did not purport to grant or convey any estate and none passed or was intended to pass by it. women. It is somewhat analogous to the right conferred in McLarney v. Pettigrew, 3 E. D. Smith, 111, in which it was held that an agreement that beams might be inserted in the wall of plaintiff's house, for the per manent support of the adjoining house, did not convey au interest in real estate and did not require a writing. The same principle has been applied to party-walls. Bosworth, J., in Maxwell v. East River Bank, 3 Bosw. 146, said: "We regard it as settled law that when the owners of adjoining lots agree, though verbally, that each will erect a building or store on his own lot, and that the dividing wall shall be a party-wall, and shall be used to support the beams and roof of each building, and they build according to such agreement, and with a view to execute it, neither can remove or do any thing to impair the ability or sufficiency of such wall so long at least as the buildings continue in a condition to subserve in every substantial respect the uses for which they were erected." The covenant executed by Mr. and Mrs. Alvord and their neighbors indicated no purpose to convey. * * * * * Its object is expressed in these words: "The parties to these presents have agreed with each other to improve their said lots * by leaving eight feet on the front thereof as an open space or court." It was intended to insure uniformity of construction in the entire block, that one might build his house back eight feet, without having the light, air or vision cut off by projecting buildings on either side, and the execution of the plan iu consummation of the understanding was all that was necessary to making it binding on those who agreed to it, or their successors in interest or estate. Such an agreement is a wise and beneficent one, alike beneficial to all the adjoining owners. The agreement was made July 14, 1846, and though the title stood in the name of Mrs. Alvord, the husband, under then existing laws, had by virtue of his marital right the jus disponendi of the property until his marital relation ceased. He and his wife joined in the execution of the covenant. The record shows a proper acknowledgment by him, but the certificate as to her is not in conformity to the technical requirements of the then existing statute, in regard to the form of acknowledgment required by a married woman. The objection to the defective acknowledgment is personal to her, for she might at any time have corrected it by a new acknowledgment or deed of confirmation, which by way of confirmation would have related back to the time when the act needing ratification was performed. No intervening right or equity prevents this from being done now if it were necessary, but it is not. Mrs. Alvord is still living but has never repudiated the covenant, and does not seek to do so. The houses on the block have been built over thirty years and all in conformity to the covenant. Alonzo A. Alvord, the husband, did not die until 1862, and the houses were therefore erected and the agreement consummated during the life of the husband, whose agreement, even regarded as a conveyance, was valid while he lived, by virtue of his exclusive right of control and of sale. Ewell Lead. Cas. 478; 2 Kent Com. 132; Vartie v. Underwood, 18 Barb. 566. Id.; When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge, which, like other charges recognized in equity, becomes effective when declared so by the courts. 2 Bish. Mar. Wom., § 212. A wife even under the then existing law might by her sole act charge her estate in equity under some circumstances in which she had not the power of conveyance. Story Eq. Jur., § 1399, and see cases collated in Voorhies' Code of 1859, page 173. She charged it in this instance. It needed no conveyance or writing to create the easement, even if the right conferred arises to the dignity of that title. The act or consent of those in interest was sufficient. This is established by the case of Tallmadge v. East River Bank, 2 Duer, 614; affirmed, 26 N. Y. 105, where the equity in regard to the manner of improvement and occupation of certain land grew out of a parol contract made by the owner with the purchaser, and it was held binding upon a subsequent grantee with notice, although his legal title was absolute and unrestricted. This case reviews many authorities and quotes Chancellor Cottenham as saying that where a covenant of this character has been entered into it would be most “unjust and unconscientious" not to enforce it. The opinion also quotes the case of Brewer v. Marshall, 4 C. E. Green (N. J. Eq.), 537, wherein the court agrees with Chancellor Cottenham in saying that "it will be found upon examination that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagements enforced create easements or are of a nature to run with the land." Tallmadge v. East River Bank, supra, maintains this doctrine in its strongest aspect. In that case Davis exhibited a plan of intended location of lots on St. Mark's place, showing that the houses were to be set back eight feet. No mention of this whatever was made in the conveyance. The court held that "it is to be presumed that they would fuot have bought and paid their money except upon this assurance. It is to be presumed that relying upon this assurance they paid a larger price for the lots than otherwise they would have paid. Selling and conveying the lots under such circumstances and with such assurances, though verbal, bound Davis in equity and good conscience to use and dispose of all the remaining lots, so that the assurances upon which Maxwell and others bought their lots could be kept and fulfilled. This equity attached to the remaining lots so that any one subsequently purchasing from Davis any one or more of the remaining lots, with notice of the equity existing between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis, but would be bound by that equity." And the court further held, that the uniformity of the position of all the houses on St. Mark's place was probably sufficient alone to put the defendant on inquiry." See also Maxwell v. East River Bank, 3 Bosw. 124; Perkins v. Coddington, 4 Robt. 647; Greene v. Creighton, 7 R. I. 1. One of the leading cases on this subject is Whitney v. Union Railway Company, 11 Gray (Mass.), 364, where the same opinion is held in the following lan guage: "In like manner, by taking an estate from a grantor with notice of valid agreements made by him with the former owner of the property, concerning the mode of occupation and use of the estate granted, the purchaser is bound in equity to fulfill such agreements with the original owner, because it would be unconscientious and inequitable for him to set aside and disregard the legal and valid acts and agreements of his vendors in regard to the estate, of which he had notice when he became its purchaser. In this view the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land." The authorities however in this State go so far as to hold that these covenants run with the land, and without an assignment of the covenants are enforceable, and any owner as well as occupant can enforce the right. Trustees, etc., v. Cowen, 4 Paige, 511; Browner v. Jones, 23 Barb. 153. One of the grounds upon which this right is put is "when it appears by a fair interpretation of the words of a grant, that it was the intent of the parties to create or reserve a right in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, such grant will be deemed appurtenant to the land of the grantor and binding." Whitney v. Union R. Co., 11 Gray, 365; Hills v. Miller, 3 Paige, 455. "Cresswell, J., seems to regard it rather as a negative servitude upon the land adjacent to the tenement than an operative easement in favor of the tenement itself." Wash. Real Prop. (4th ed.) 649. On the general doctrine of the above cases this court ordered a projection of the Burlington flats (in the same street) to be removed. Du Bois v. Darling, 44 N. Y. Super. Ct. 436. And a defendant was enjoined from maintaining a tenement-house. Amerman v. Dean, 57 N. Y. Super. Ct. 175. This doctrine has been somewhat extensively referred to by us, not merely to illustrate the principles upon which it stands, but for the purpose of showing that these covenants are held sacred in equity and are enforced as a matter of strict justice. Injunctions in this class of cases are granted almost as of course, upon proof of a breach of the covenant. 3 Pom. Eq. Juris., p. 3722, § 134; Bispham Prin. of Eq., p. 514, § 461, and see Stewart v. Winters, 4 Sandf. 587. The Alvords compelled all the other property-owners to build on the line, and held them to the agreement, and it is now claimed by their remote grautee that, although he had notice of the covenant, and knew of the prior equity, he can disregard it and build out to the line of the street, and exclude the adjoining owners from light, air and vision on the techuical ground that Mrs. Alvord was incompetent to contract, and that her husband's power of control terminated with his death in 1862, and hence whatever vitality the covenant ever had ceased at that time. In other words, that notwithstanding the facts (1) that the covenant may have been valid in 1846; (2) that Mr. and Mrs. Alvord sold the property in 1857 with reference to it, and without repudiation; (3) that the covenant had been fully executed by the erection of buildings in conformity to its terms over thirty years ago, yet in consequence of Mr. Alvord's death in 1862, the covenant was spent and is now inoperative. logical reasons have been advanced to support such an extraordinary claim, and our attention has not been called to any direct authority which sustains the proposition stated. No The defendant bought with knowledge of the covenant and took subject to it. 2 Pom. Eq. Juris. 14; Hodge v. Sloan, 107 N. Y. 245, 250; Trustees of Columbia College v. Lynch, 70 id. 450. It was binding on the Alvords and is certainly valid as to him, a remote grantee charged with notice of the prior equity. Id. We are next called upon to consider the objection urged by the defendant, that ten feet of the front of the building is not affected by the covenant. This triangular piece was purchased by Susan Alvord November 23, 1853, to straighten the line of her lot, and the whole parcel was sold together as one lot April 1, 1857, and it was built upon during that year in conformity to the requirements of the covenant, and thus the entire structure is brought within its provisions by the principles declared in Tallmadge v. East River Bank, supra. The point as to change of character of the neighborhood is equally without merit. Where the use of land is restricted to private residences, and changes in the neighborhood unfit the property for that use, this circumstance may operate to defeat the covenant in that regard. Trustees of Columbia College v. Thacher, 87 N. Y. 311. relaxing the rule in that case does not exist here. The The necessity presented for covenant is of a different character, and falls within the principles decided in Lattimer v. Livermore, 6 Daly, 505; affirmed, 72 N. Y. 174, in which it was held that a covenant for the enjoyment of light, air and vision was not discharged by a mere change of neighborhood, as there was no reason why an adjoining property-owner by that circumstance should have less of either than his covenant called for. The plaintiff established her right to equitable relief by injunction, and it was error to vacate the temporary writ. The order appealed from must therefore be reversed and the application to continue the injunction granted, with costs. SEDGWICK, Ch. J.. and FREEDMAN, J., concur. NEW YORK COURT OF APPEALS ABSTRACTS. BOARD OF CLAIMS-JURISDICTION-CANALS-LIABILITY OF STATE FOR INJURIES THROUGH DEFECTIVE BRIDGE ON ABANDONED CANAL.- Chapter 404, Laws of 1877, authorizing the abandoning and discontinuing of the Chenango canal, was not intended to relieve the State from liability for injuries suffered from failure to keep in repair bridges which it still maintains, and the board of claims has power to award damages for such injury. Second Division, June 25, 1891. Woodman v. State of New York. Opinion by Haight, J. Leek, 12 Wend. 105; Bain v. Matteson, 54 N. Y. 666. Even in a consummated purchase the grantee in fee may purchase in an outstanding title hostile to his grantor and fortify his own defective title. Kenada v. Gardner, 3 Barb. 589. In Watkins v. Holman, 16 Pet. 54, it is said by the court in discussing such relations that "the relation of landlord and tenant in no sense exists between vendor and vendee." Judge Bronson, in delivering the opinion of the court in Osterhout v. Shoemaker, 3 Hill, 513-518, says: "The grantee takes the land to hold for himself and to dispose of at his pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title." Second Division, June 25, 1891. Greene v. Couse. Opinion by Potter, J. 38 N. Y. St. Rep. 426. LEGACY WHEN CARRIES INTEREST FROM TESTATOR'S DEATH.- When there is a legacy to a minor child, or to an infant, as to whom the testator is in loco parentis, and such legatee has no other provision, nor any maintenance, in the meantime, allotted by the will, the legacy, although payable at a future day, carries interest from the death of the testator. It will be observed that the will does not in express terms provide for the payment of interest, nor does it create a trust. If however it is apparent that it was the intention of the testatrix that the plaintiff should have PRACTICE-APPEAL.-Where the Court of Ap-interest, it is the duty of the court to so decree. The peals modifies an award of the board of claims by simply increasing it, the new amount stands in the place of the old as of the same date and the modified award bears interest from the same date as the original award. June 25, 1891. Sayre v. People of the State of New York. Opinion per Curiam. ADVERSE POSSESSION ESTOPPEL EJECTMENT FORTIFYING TITLE BY BUYING OFF THOSE ATTACKING IT.-Alexander Couse being in possession of the lands in question under a deed from his father given in 1849, plaintiff and others brought actions in ejectment, and on March 5, 1875, an agreement was entered into by which the actions were settled and Couse agreed to purchase their interest for $400, he to give a note and they to deliver the deed upon the payment of the note. It was never paid, and a judgment was obtained upon it. Couse afterward quit-claimed the premises to his son, the defendant, in 1882, who claims to hold the same adversely. The court refused in an action of ejectment to allow evidence of the adverse possession to be given, holding that he was estopped by the agreement, note, etc. Held, error; that defendant and his grantors were at liberty, plaintiffs never having been in possession, and defendant's possession having ripened into title in 1875, to fortify the title or purchase peace at any price and of whomsoever he chose. Citing Barnes v. Light, 116 N. Y. 34: 26 N. Y. St. Rep. 654. I am aware of the rule that where a lessee or vendee enters into possession of premises under a lease or contract he cannot while he remains in possession dispute the title of the lessor or vendor, but this case is lacking in the essential element which creates such estoppel. Neither the defendant nor his grantors entered into the possession by any manner of consent or contractual relation with the plaintiff or her ancestors or grantors. The rule in relation to estoppel does not apply "where at the time of the purchase the vendee is in possession as owner, claiming title, and his entry was not under the vendor." Glen v. Gibson, 9 Barb. 634-640. "Where a man is in possession of land as owner having title, he is at liberty to purchase the land over again as often as claimants shall appear who are not in possession, and thus quiet such claim and fortify his title without being estopped from disputing the title of such subsequent vendors, should it afterward become necessary for him to do so." Jackson v. general rule is that when a time is specified in the will for the payment of a legacy and there is no direction as to interest, the legacy will carry interest only from the time it is payable. Thorn v. Garner, 113 N. Y. 198; Van Rensselaer v. Van Rensselaer, id. 207; In Matter of Accounting of McGowan, as Executor, etc., 124 id. 526. But to this rule there is an exception, and it is well stated by Earl, J., in the case of Brown v. Knapp, 79 N. Y. 136-141. He says: "When there is a legacy to a minor child or to an infant as to whom the testator is in loco parentis and such legatee has no other provision nor any maintenance in the meantime allotted by the will, the legacy although payable at a future day, carries interest from the death of the testator. This rule is based upon the presumption that the testator in such case must have intended that the legatee should in the meantime be maintained at his expense, thus discharging his moral obligation or carrying out his benevolent design. It is not needed for the application of this rule that the testator must have been under a legal obligation at the time of his death to support the legatee. Such obligation of a testator to support his own child continues only during his life. "It is sufficient for the operation of this rule that the testator has voluntarily assumed in reference to the legatee such a relation similar in some respects to that of parent, that it may be presumed that he did not intend to leave the legatee without support." In that case the testator had bequeathed to his grandson the sum of $3,000, to be paid to him when he shall have attained the age of twenty-one years. The father of the legatee had entered the military service of the United States and died in such service. Before entering such service the testator had said to him that if he never returned, his wife and son would always be cared for. After the death of the legatee's father the testator took him and his mother to live with him and supported them until his death. It was held that he was entitled to interest upon his legacy from the death of the testator. See also Acherly v. Wheeler, 1 P. Wms. 783; Hill v. Hill, 3 Vesey & Beames, 183; Donovan v. Needham, 9 Beav. 164; Rogers v. Soutten, 2 Keen, 598; Lupton v. Lupton, 2 Johns. Ch. 614; Keating v. Bruns, 3 Dem. 233; Neder v. Zimmer, 6 id. 180; Matter of Goble, 30 N. Y. St. Rep. 944. Second Division, June 25, 1891. Lyon v. Industrial School Assn. Opinion by Haight, J. 38 N. Y. St. Rep. 924. MUNICIPAL CORPORATION - NEW YORK CITY AQUEDUCT COMMISSION-HAS NO POWER TO SUSPEND INSPECTOR WITHOUT PAY.-The aqueduct commissioners of the city of New York have no power to suspend an inspector for a given time without pay. His compensation is fixed and accompanies the office until he is removed or a new rate of compensation consented to. Following Gregory v. Mayor, etc., 113 N. Y. 416. June 23, 1891. Emmitt v. Mayor, etc. Opinion by Gray, J. NEGLIGENCE- CHILDREN IN HIGHWAY.- Plaintiff, four years of age, was one of a crowd of children watching some boys trying to get a bird out of a hole in a stone wall where there was no sidewalk, when defendant's team and heavy truck came along, driven very rapidly. Plaintiff was so frightened that she made a turn to run toward the wall and made another toward the street, and was knocked down by the horses. There was a conflict of evidence as to how near the wall the horses were driven. Held, that the driver had no right to keep on his way driving rapidly in plain view of the children, and defendant was liable if he drove so near the wall as to expose them to dauger, and the question of negligence of the driver and of contributory negligence of the child was for the jury. June 23, 1891. Barrett v. Smith. Opinion per Curiam. LANDLORD AND TENANT-CARE OF STAIRWAY IN TENEMENT-CONTRIBUTORY NEGLIGENCE.—(1) It is the duty of the landlord of a tenement-house to use reasonable care to keep a stairway, common to the occupants of the building, in proper repair, and for failure to do so he is chargeable with liability for injuries suffered by them, without their fault, while properly using it for such purpose. Looney v. McLean, 129 Mass. 33; Lindsey v. Leighton, 150 id. 285; Donohue v. Kendall, 18 J. & S. 386; Neyer v. Miller, 19 id. 516. (2) Such liability attaches where the injury was caused by tripping in a ragged carpet, to which the landlord's attention had been called by plaintiff, and which he had promised to remove. (3) While plaintiff's previous knowledge of the condition of the passage-way may have imposed upon her the duty to exercise a greater degree of care, she was not required to desist from using the stairway by reason of the ruptures in the carpet. And while the question may have been a close one of fact it could not properly be held as matter of law that the plaintiff was guilty of contributory negligence; and therefore the motion for nonsuit was properly denied. Palmer v. Dearing, 93 N. Y. 7; Looney v. McLean, 129 Mass. 33. The question presented would have been quite different if the stair-case had been part of the premises demised to the plaintiff. Then the evidence may not have warranted a recovery by her; and many of the cases cited by the defendant's counsel would have been applicable. But the stairway was not under the control of any of the tenants, but was provided by the defendant for the common use of those having occasion to pass to and from the rooms which they occupied as his tenants. And the weight of the evidence bearing upon the question of negligence of the defendant or of contributory negligence of the plaintiff is not here for consideration. Second Division, June 23, 1891. Peil v. Reinhart. Opinion by Bradley, J. PLEADING-GENERAL DENIAL-ILLEGALITY OF CONTRACT. In an action to recover a certain sum of money and stock deposited by plaintiff with defendant, which was to be returned to plaintiff should a certaiu resolution not be passed by the common council so as to take effect before a designated day, the defendant offered to show that the alleged agreement was illegal. This proof was objected to as not admissible because not pleaded, the answer being a general denial, but the objection was overruled. Held, error; that as it neither appeared from the complaint nor the evidence of plaintiff that the contract was illegal, the defendant could not avail himself of facts not appearing on the face of the contract to establish its invalidity. It is the tendency of judicial decision to discountenance all attempts to influence the deliberations and determinations of public bodies and officers other than by arguments which, being openly made, bear directly upon the merits of a pending measure or application, because in contravention of a sound public policy. A contract founded on a violation of this whole some rule of law is illegal, and the court will not lend its aid to a party seeking its enforcement, but will declare the contract void, leaving the parties to it in the position in which they placed themselves. Mills v. Mills, 40 N. Y. 546. The defendant, in his motion for a dismissal of the complaint, invoked this rule of law, but the situation then presented, as we think, did not support his position. It did not appear that Jones was au alderman, a councilman or mayor. There was no evidence relating to the contract or the object sought to be accomplished by it outside of the instrument itself, and it does not appear from an examination of its provisions that it comes within the condemnation of the law, because against public policy. It did not provide that Jones should assist in procuring the passage of the resolution therein referred to, or that he should render any services whatever. It purports to make Jones the depository merely of the money, to be by him returned in the event that the resolution should fail to pass and take effect before July 10. The court therefore rightly denied the defendant's motion to dismiss the complaint, who at once entered on the introduction of testimony tending to show that the contract was against public policy. Plaintiff's counsel seasonably objected that it was immaterial, incompetent and not admissible under the answer, because not pleaded. The objection was overruled, and the exception taken thereto presents the question assigned for error by the appellant. The answer was a general denial, and the plaintiff insisted on the trial, as he does on this appeal, that not having been informed by the answer that the illegality of the contract would be an issue on the trial, he could not be expected to be prepared, nor required, to meet it. Under a general denial, the rule undoubtedly is, that if the illegality appears on the face of the complaint, or necessarily appears from plaintiff's evidence, advantage may be taken of it by defendant, who must also be permitted to controvert by evidence every thing which the plaintiff is bound in the first instance to prove in order to make out his cause of action. And the cases cited by the respondent in support of the ruling will be found on analysis to come within it. In Russell v. Burton, 66 Barb. 539, the contract as proved by the plaintiff was for lobby services, and void. In Oscanyan v. Arms Co., 103 U. S. 261, the complaint was dismissed on the opening of plaintiff's counsel, because it appeared therefrom that the contract relied on was illegal. In Cary v. Western Union Telegraph Co., 20 Abb. N. C. 333, the plaintiff in making proof of his contract introduced evidence showing its invalidity. And in O'Brien v. McCann, 58 N. Y. 376; Clifford v. Dam, 81 id. 52, and Griffin v. L. I. R. Co., 101 id. 348, the court simply declared the rule that under a general denial the defendant may give evidence tending to disprove any fact which the plaintiff is bound to prove in order to recover. But in this case it neither appeared from the complaint nor the evidence presented by the plaintiff that the contract was illegal, aud as we have already shown when the plaintiff rested, the evidence established a cause of action. The general denial put in issue all matters which the plaintiff was bound to prove; nothing more. He was required to prove the contract entered into by defendant, which was on its face valid. Having accomplished that, he could not be compelled | planation too as will show that it was not in fault. In to enter into a controversy over matters not appearing in the contract involving the question of its validity or invalidity, because he had not been notified by the answer that the defendant proposed to assert his own participation in that which was a violation of law as a shield against the consequences of his agreement. This rule has been enforced so long that it seems unnecessary to support it at this time by an extended reference to the decisions, and we shall therefore end the discussion by citing a few of the cases in which the courts of this State have said that a defendant, in order to avail himself of facts not appearing on the face of a contract, to establish its invalidity, must plead it. Dingeldein v. Third Ave. R. Co., 37 N. Y. 575; Goodwin v. Mass. Mut. Life Ins. Co., 73 id. 480; May v. Burras, 13 Abb. N. C. 384; Haywood v. Jones, 10 Hun, 500; Schreyer v. Mayor, 39 N. Y. Super. Ct. 1; Vischer v. Bagg, 21 Week. Dig. 399; Honegger v. Wettstein, 94 N. Y. 252. Second Division, June 23, 1891. Milbank v. Jones. Opinion by Parker, J. ABSTRACTS OF VARIOUS RECENT DECISIONS. CARRIERS-INJURIES TO PASSENGER-EVIDENCESPEED OF TRAIN-NON-EXPERT WITNESS-NEW TRIAL - MISCONDUCT OF JURY. In an action against a railroad company for injuries to a passenger, one who lives in sight of defendant's road is competent to testify as to the speed of the train on which the plaintiff was injured, he having seen the accident, although he is not an expert. A non-expert witness may give an opinion as to the speed at which a train was moving. Possibly the testimony of a non-expert may be of less value than that of an expert, but that proves nothing to the purpose, for here the question is whether the evidence should be heard, not what weight should be assigned it. The authorities give full support to our conclusion that the testimony was competent. Railroad Co. v. Jones, 108 Ind. 551; Railroad Co. v. Crist, 116 id. 446, and authorities cited; Lawson Exp. Ev. 462; Rog. Exp. Test. (2d ed.) 244. (2) Where a passenger is injured by a collision between a railroad train and a cow, there arises a presumption that defendant was negligent, which imposes on it the burden of proving that its road was fenced as required by statute. A violation of a statutory duty has often been adjudged to give a traveller upon a highway a right of action against a railroad company, and beyond controversy such a breach of duty must give a right of action where the relation of carrier and passenger exists. It is the relation of carrier and passenger which creates the high duty that rests upon the appellant, and brings the case within the strong and salutary rule that the law has established for the protection of travellers who intrust themselves to the care of common carriers. The rule to which we refer is the one that imposes upon the carrier the burden of removing❘ the presumption of negligence which arises from the happening of an accident which causes injury to a pas senger. This case illustrates the wisdom and justice of the rule. A passenger cannot in reason be expected or required to ascertain the condition of the fences along the line of the carrier's track, for the matter is one peculiarly within the knowledge of the carrier. It must be true that it is a matter within the peculiar knowledge of the carrier, or else it must be true that the carrier remained ignorant and inactive where it was its imperative duty to be active and vigilant. is at all events more than reasonable and just to require of the company, in such a case as this, an explanation of the cause of the accident, and such an ex It this instance it was its duty to show, at least, that the fences were reasonably secure, and to use care and diligence to make such fences as would prevent domestic animals from straying on the track. This rule to which we refer was thus expressed in Railroad Co. v. Jones, supra: "When the plaintiff made it appear that she was a passenger upon appellant's train, and while being carried as such the car in which she was seated left the track, and she suffered injuries thereby, she had shown a state of things upon which a presumption of negligence arose against the railroad company, which stood with the force and efficiency of actual proof of the fact, and was available for her benefit until negatived and overthrown, and such presumption can only be overthrown by evidence that the casualty resulted from inevitable or unavoidable accident, against which no human skill, prudence or foresight, as usually and practically applied to careful railroad management, could provide." In many cases the doctrine declared in the opinion from which we have quoted has been asserted. Packet Co. v. McCool, 83 Ind. 392; Railroad Co. v. Buck, 96 id. 346, and authorities cited: Railroad Co. v. Newell, 104 id. 264; Railroad Co. v. Rainbolt, 99 id. 551; Anderson v. Scholey, 114 id. 553; Railroad Co. v. Pedigo, 108 id. 481; Railroad Co. v. Snyder, 117 id. 435. Sup. Ct. Ind., June 11, 1891. Louisville, N. A. & C. Ry. Co. v. Hendricks. Opinion by Elliott, J. CONSTITUTIONAL LAW-officer-COMPENSATION.The defendant in error was elected county commissioner of Douglas county; his term commencing in January, 1886, and terminating January, 1888. At the time he was elected the compensation of county commissioner was fixed by statute at $3 per day for each day necessarily employed in the duties of said office, and five cents per mile as fees for going to and returning from the county-seat. On the 31st of March, 1887, an act was passed by the Legislature which provided that in all counties having over seventy thousand inhabitants each county commissioner should receive a salary of $1,800 per annum. This act applied to Douglas county. This act was in force at least six months before the termination of the term of office of the defendant in error. The defendant in error claimed that he was entitled to compensation under the new law, and presented his claim to the county board of Douglas county, which rejected it. He then appealed to the District Court, where judgment was rendered in his favor. The question presented is one of law, and was before this court in the case of State v. Whittemore, 12 Neb. 254, and State v. Ream, 16 id. 681, and the act was sustained as being constitutional. It is claimed by the plaintiff in error that the Legislature had no power to increase the compensation of the county commissioner during his term of office; that he is entitled to the compensation fixed by law at the time of his election, and when he entered upon the duties of his office. This contention is based upon section 16, article 3, of the Constitution, which provides, in substance, that the compensation of a public officer will not be increased nor diminished during his term of office. That provision, in our view, applies alone to those officers whose offices were created by the Constitution. As to all such officers, the salary or compensation fixed by law when the officer is elected, and enters upon the duties of his office, can neither be increased in any form nor diminished during his term. The question was recently before the Supreme Court of Wisconsin, in State v. Kalb, 50 Wis. 178, and it was held, under a similar provision of the Constitution of that State, that it applied to officers created by the Constitution. This, we think, is a correct statement of the law. In the absence of any constitutional prohibition, or affirmative provision fixing the term of |