the abstracts thereof in said county, without regard to the order of the rendition of the judgments in H county. -Hamilton-Brown Shoe Co. v. Walker, Miss., 6 South Rep.

713.

59. JUDGMENT - Lien. The lien of a judgment is su perior to that of an unrecorded mortgage.—Cleveland v. Shannon, Ark., 12 S. W. Rep. 497.

60. JURY-Challenges.- Under the statute in relation to struck juries, no peremptory challenges are allowed to any of the jurors composing the panel as finally made up.-Watson v. St. Paul City Ry. Co., Minn., 43 N. W. Rep. 901.

61. JURY-Separation. There is no separation of a jury when a juror is permitted to go to a water-closet, which has been previously examined by a deputysheriff to see that no one is there, and goes in there, and the door is kept partially open, and the jury, under the charge of the deputy, is kept in front of the same, at a convenient distance.-State v. Nockum, La., 6 South. Rep.

729.

62. JUSTICES OF THE PEACE. - A justice of the peace has the power to act in a criminal proceeding without the consent of the prosecuting attorney, where he takes security for costs, and the board of supervisors cannot refuse to allow him fees when he has so acted.-Jaminet v. Board of Supervisors, Mich., 43 N. W. Rep. 910.

63. LANDLORD AND TENANT.- A tenant may show that the title of his landlord under. whlch he entered has passed by operation of law to a third party, and that he holds under the new owner.-Rhyne v. Guevara, Miss., 6 South. Rep. 736.

66. MASTER AND SERVANT- Negligence. In an action against a railroad company for personal injury to an employee, caused by the negligence of a co-employee, the court instructed that to make a prima facie case plaintiff "must prove either that he was not to blame or that the company was. The company, in replying, may defend successfully by disproving either proposition; that is, by showing either that the plaintiff was to blame or that the company was not. By 'blame,' I mean the 'want of due diligence.' The measure of diligence which the law imposes on railroad companies in reference to employees, and on the conduct of em. ployees in reference to their companies, is ordinary diligence or common prudence:" Held, that there was no error in the instruction, under Code Ga. § 3036, Centrul R. Co. v. Lanier, Ga., 10 S. E. Rep. 279.

67. MECHANICS' LIENS Waiver. Retention by a seller of title to machinery placed on land until the price is paid, with a reservation of the right, in case of default in payment, to take possession of and remove such machinery without process, is not a waiver of the lien given by Code Tenn. § 2739, on any lot of ground for the price of machinery furnished or erected thereon. Case Manuf'g Co. v. Smith, U. S. C. C. (Tenn.), 40 Fed. Rep. 339.

68. MECHANICS' LIENS-Fixtures.-Const. Tex. art. 16, § 37, which provides that "mechanics shall have a lien, and the legislature shall provide for enforcement of said liens," creates the lien, and only leaves it for the legislature to provide the means of its enforcement; and a mechanic's lien, filled for record within the time allowed by the statute, relates back to the time the work was done or the material was furnished, and takes precedence of any other lien acquired since that time.-Keating Implement & Machine Co. v. Marshall Electric Light Co., Tex., 12 S. W. Rep. 489.

69. MONEY HAD AND RECEIVED. At a tax sale all bidders under sales for the taxes of 1883 were bound, as the plaintiff knew, to take the same land for the taxes of 1882 also, and the plaintiff bid and paid to the treasurer the amount of the taxes for 1883, but refused to make payment for 1882 taxes. The treasurer thereupon, without authority from plaintiff, turned the money over to the State, and prepared certificates of sale, for both years, of land sufficient to equal the amount paid in, which certificates the plaintiff refused: Held, that the plaintiff, if he demanded a return of the money, was entitled to maintain an action against the treasurer for the same, as for money had and received. -O'Donnell v. Perin, Mich., 43 N. W. Rep. 774.

71. MORTGAGES - Redemption. Under Code Ala. § 1880, providing that it shall be a condition precedent to the right to redeem land from a foreclosure sale that possession of the land was delivered to the purchaser within ten days after the sale, on demand, and that the party seeking to redeem must prove the delivery, one cannot redeem where it appears that members of his household remained on the premises resisting the purchaser's entry, and were, after the lapse of ten days, removed, with their personal property, and that of the mortgagor, by the sheriff. Nelms v. Kennon, Ala., 6 South. Rep. 744.

72. MORTGAGES Satisfaction. Where defendants procure a loan from plaintiff to pay a mortgage on their land, on the agreement that after its payment and discharge of record a new mortgage should be executed to plaintiff to secure the loan, but, instead, after discharging the mortgage, convey the land to a third person, having full knowledge of the loan and agreement, with intent to defraud plaintiff, the latter is not a mere volunteer, and the satisfaction of the mortgage will be canceled, and plaintiff subrogated to the rights of the mortgagee. Wilton v. Mayberry, Wis., 43 N. W. Rep. 902. 73. MUNICIPAL CORPORATIONS-Markets.-A municipal corporation has the power to contract with an individual, to authorize him to build a market house, rent stalls, and collect dues, during the specified period, with the consideration that the land, which is his prop erty, and the improvements upon it, shall be conveyed to the city, and that the same, at the expiration of the term, shall be turned over absolutely, in good order, to the corporation.-State v. Natal, La., 6 South. Rep. 722. 74. MUNICIPAL CORPORATIONS Annexation. The statutes conferring on cities of the second class power to extend their boundaries, so as to include adjacent land that has been subdivided into blocks and lots, is not unconstitutional, because the legislature is restricted by § 21, art. 2, of the constitution, from conferring powers of local legislation or administration on any local agency except the tribunals transacting county business.-City of Emporia v. Smith, Kan., 22 Pac. Rep. 616.

taxes was illegal. It cannot claim both. City of New Orleans v. Cresent City R. Co., La., 6 South. Rep. 719.

77. MUNICIPAL CORPORATIONS- Constitutional Law.Charter of Port Huron, Mich. ch. 18, §§ 1, 2, which make it the duty of every person owning, occupying, or hav. ing an interest in real estate in that city to maintain sidewalks, and authorize the common council to provide for the punishment by fine or imprisonment, or both, of any person who neglects to comply with the resolution or ordinance relative to the construction or maintenance of sidewalks, are unconstitutional. City of Port Huron v. Jenkinson, Mich., 43 N. W. Rep. 923. 78. NEGLIGENCE- Railroad Company.-Held, that deceased under Code Ga. § 2972 was guilty of gross negli. gence in walking on defendant's track.-White v. Central R. R., Ga., 10 S. E. Rep. 273.

79. NEGLIGENCE — Warnings. In an action for personal injury, against a railroad company, the court, after charging that warnings should not only be given in the usual and customary manner, but also in such manner as ordinary care and diligence required, further instructed that if the warnings were given in the customary manner alone, defendant would be relieved from liability: Held, not error. — Georgia Pac. R. Co. v. Freeman, Ga., 10 S. E. Rep. 277.

80. NEGLIGENCE-Exemplary Damages. The liability of a railroad company for exemplary damages does not depend on its ability to keep its road in such condition that it can be safely operated. Texas Trunk Ry. Co. v. Johnson, Tex., 12 8. W. Rep. 482. 81. NEGLIGENCE-Stock-killing. · As the cattle-guard was not in an unlawful or forbidden condition, under the circumstances, and as the cattle were at large contrary to law, trespassers upon defendant's right of way, the defendant's servants, engaged in operating its trains, were not bound to anticipate such trespassing by looking ahead, or by managing a train with reference to such a contingency. Stacey v. Winona, etc. R. Co., Minn., 43 N. W. Rep. 905.

83. NEGLIGENCE OF SERVANT.-In an action against an express company for negligence of its servant in driving over plaintiff with a horse and wagon, where the servant testified that the horse was nervous and pranc ing, and other evidence tended to show that he apparently hurried across the track, when plaintiff was knocked down, it is a question for the jury whether defendant drove at too high a rate of speed. Post v. United States Exp. Co., Mich., 43 N. W. Rep. 636. 84. NEGOTIABLE INSTRUMENT Collateral Security. Plaintiff's intestate executed his note to defendant H, and deposited with him the note of defendant L, as collateral security; and H assigned both notes, as collateral to S. Plaintiff sued for the amount of L's note: Held, that defendant S held L's note in trust, for the estate of plaintiff's intestate, subject to the payment to S, of the note of plaintiff's intestate to H, and was en. titled to judgment against L for the amount of the note, without first establishing his claim against intestate's estate.-Williams' Adm'r v. Lumpkin, Tex., 12 S. W. Rep.

86. NEGOTIABLE INSTRUMENT. Evidence reviewed with reference to whether note sued on belonged to plaintiff or to the bank to whom it was made payable.Pinkham v. Cockell, Mich., 43 N. W. Rep. 921.

87. PARTITION-Jurisdiction.- Since in Missouri a par tition proceeding is but a civil action, the circuit court has jurisdiction of an answer seeking to charge the interests of some of the parties with advancements made to them by the ancestor's executrix, under an agreement that they should be so charged, under Rev. St. Mo. § 3521.-Green v. Walker, Mo., 12 S. W. Rep. 358. 88. PARTITION Limitation of Actions. An action brought by parties claiming to own undivided interests in an immovable, against parties possessing and claiming to own in indivision the whole immovable, and asking judgment decreeing their ownership and for partition, combines the double character of petitory action and an action for partition. — Le Blanc v. Rebert son, La., 6 South. Rep. 720.

89. PARTNERSHIP-Evidence. In an action against a party, to charge him with a debt as a copartner, it is competent for him to prove that at the time the debt was contracted the partnership had been dissolved; but, in order to render the proof admissible, it must tend to show an actual dissolution of the partnership relation.-Dawson v. Pogue Oreg., 22 Pac. Rep. 637.

90. PAYMENTS-Voluntary Payments.- Payments vol. untarily made cannot be recovered back upon grounds. which would have constituted a defense, and were known to the plaintiff at the time of payment. The Nicanor,, U. S. D. C. (N. Y.), 40 Fed. Rep. 361.

91. PRACTICE-Autrefois Convict. Rev. St. Mo. 1879, § 1929, provides that, where the punishment is alternative, the jury may assess it, and the court shall render judgment accordingly, except as otherwise provided. Sections 1930 1933 provide that, where the punishment is assessed in excess of the highest penalty allowable, the court may reduce it to the highest penalty, and, where assessed below the lowest penalty, the court may raise it to the lowest allowable, but may in any case reduce a penalty fixed by a jury. Section 1965, provides that proceedings for new trials may be had on the motion of defendant: Held, that where the jury has assessed the minimum penalty, the court has no authority, on its own motion, to set aside the verdict, and order a new trial. State v. Snyder, Mo., 12 S. W. Rep. 369.

--

92. PRACTICE-Suit in Forma Pauperis. A claim can be interposed under the act of 1870 upon an affidavit in forma pauperis made by the claimant himself, but not upon a like affidavit made by his agent. The privilege of making oath to belief, good faith, etc., in lieu of giv. ing bond and security, is personal, and cannot be exercised by proxy. Haddon v. Larned, Ga., 10 S. E. Rep.

278.

93. PRACTICE-Remarks of Counsel.-On the trial of an indictment for receiving stolen goods, the prosecuting attorney, in opening the case said to the jury: "One reason why I am more prejudiced against this man is because he has committed perjury in the recorder's court, for the purpose of assisting one of his fellow prisoners." Upon objection made to this by defendant's counsel, instead of rebuking it, the court remarked: "I must say that considerable of that has come under my own notice. I don't see how you are going to deny that: "Held, gross error.-People v. Moyer, Mich., 43 N. W. Rep. 928.

94. PRACTICE Remittitur on Appeal. A remittitur from the supreme court directing the lower court to give judgment for plaintiff, granting him a perpetual injunction, and awarding him compensation for the acts of defendants, does not authorize the court below to open the case and take further evidence, nor to make any new or additional findings of fact.- Raisbeck v. Anthony, Wis., 43 N. W. Rep. 900.

95. PRACTICE Arraignment and Plea. In a capital case, the accused must be arraigned and required to

plead to the information filed against him. The record ought to show affirmatively that the accused was arraigned, and that he pleaded before trial.-State v. Wilson, Kan., 22 Pac. Rep. 622.

96. PRINCIPAL AND AGENT.-The silence of a principal, after knowledge of an unauthorized or illegal act of his agent, is equivalent in law to an acquiescence in, and ratification of, the act or conduct of the agent. mond v. Palmer, La., 6 South. Rep. 692.

Ray

97. QUIETING TITLE.-Complainant sued to set aside two deeds made by his deceased wife to their son, conveying land on which complainant and his wife had resided as a homestead, claiming that the land was originally paid for by himself, and conveyed to his wife, who had devised it to him. It appeared that, while defendant lived in the house with his father and mother when their deeds were made, he knew nothing of their existence until after his mother's death. He paid nothing for the property conveyed, and the deeds were never delivered to any one for defendant, and the first he knew of their existence was when they were placed on record by one P, who had possession of them, but who had no instructions to deliver them to defendant for his mother: Held, that complainant should be quieted in his possession of the land, the deeds never having become operative by delivery.-Lyon v. Lyon, Mich., 43 N. W. Rep. 586.

98. RAILROAD COMPANY-Sale.-At a meeting of stock. holders of an uncompleted railroad, held after a propo sition for its purchase had been made, at which meeting stockholders representing 680, out of 750 shares of stock were present, a resolution accepting the proposition, and authorizing the sale of the road by the board of directors, was passed unanimously: Held, that a sale of the road by the president and secretary, in pursuance of a resolution passed by the directors under the foregoing authority, was legal. Young v. Toledo, elc. R. Co., Mich., 43 N. W. Rep. 632.

99. RAILROAD COMPANIES- Negligence. Under Code Miss., § 1059, providing that, in actions against railroad companies for injuries to person or property, proof of the injury inflicted by the running of locomotives or cars of such company, shall be prima facie evidence of the want of reasonable skill and care on the part of its employees, the presumption created by the statute ceases when the prima facie case made out by proof of injury is rebutted by evidence on the part of defendant. -Jones v. Bond, U. S. C. C. (Miss.), 40 Fəd. Rep. 285.

100. RAILROAD COMPANIES - Fences.-On each side of defendant's railroad track was what was known as "F street," and used as a public street, though it was not shown to have been regularly laid out or extended over the tracks. Its general direction was due north and south, but on the south side of the tracks it deflected to the west, and ended at the station grounds, so that, if it had been extended across the tracks in the same direction, it would not have been connected with that which was called "F. street," on the north side: Held, that there was no continuous street at that point, and therefore Pub. Acts Mich. 1887, p. 339, requiring streets crossing railway tracks to be fenced, and provided with cattle guards, did not apply.- Stern v. Michigan Cent. R. Co., Mich., 43 N. W. Rep. 587.

101. REPLEVIN-Pleading. - Under Rev. St. Ind. 1881, § 1267, providing that, if the plaintiff in an action for the possession of personal property claims immediate possession thereof, he must make an affidavit showing certain facts, it is proper to incorporate such affidavit in the complaint.-Turpie v. Fagg, Ind., 22 N. E. Rep. 743. 102. SALE-When Title Passed.-Facts herein held suf ficient to support a finding that there was an executed contract for the sale of lumber.-Thayer v. Davis, Wis., 43 N. W. Rep. 90.

and rescinding the sale with as little delay as the usual methods of the business will permit. Farrington v. Smith, Mich., 43 N. W. Rep. 927.

104. SPECIFIC PERFORMANCE - Laches. The unexplained delay for eight years, in enforcing an agreement for a deed, which by its terms was to be performed within three months, constitutes such laches as will prevent a decree for specific performance. McCabe v. Mathews, U. S. C. C. (Fla.), 40 Fed. Rep. 338. 105. SPECIFIC PERFORMANCE Parol Contracts. Equity will not aid in enforcing specific performance of a parol contract for the purchase of land, where the purchaser seeks to take it from the operation of the statute of frauds by alleging part payment, unless the contract is definitely alleged, and the proof clearly establishes the particular contract set up in the bill. Allen v. Young, Ala., 6 South. Rep. 747.

106. STATE AUDITOR-Warrants. It is the duty of the State auditor to issue his warrant upon the State treas. urer to pay a debt due to the contractors for work done by them in the construction of the State-house, where it is admitted that everything is regular, and legal and valld, and that a sufficient fund has been provided for by statute, known as the "State-house Fund," with which to pay such debt. Evans v. McCarthy, Kan., 22 Pac. Rep. 631.

107. TAXATION - Notice to Redeem. A notice to redeem from a tax sale, issued and served under the provisions of § 121, ch. 11, Gen. St. 1878, in which it is stated "that the time for redemption from said sale will expire sixty days after service of this notice," is sufficient, the other requirements of said section being observed.-Parker v' Branch, Minn., 43 N. W. Rep. 907.

108. TAXATION-Exemption. One engaged in cutting and making coats and pants out of jeans cloth, which has been already manufactured by another, is not a manufacturer of textile fabrics, in the sense of article 207 of the constitution, and "the capital, machinery, and other property employed" therein are not exempt from taxation.-Cohn v. Parker, La., 6 South. Rep. 718.

109. TAXATION-Levy-Public Institution.-Held, under the facts that "The Bridgeton Academy" is a public institution and a levy of tax by it for school purposes was legal.-State v. Vaughan, Mo., 12 S. W. Rep. 507.

110. TAXATION-Payment.- Where a county treasurer deposits in a bank receipts for taxes due from the bank, receives credit for the amount of such taxes, and afterwards draws the money out by check, the transaction amounts to a payment of the taxes. Wasson v. Lamb, Ind., 22 N. E. Rep. 729.

111. TAXATION-Exemption.- The Detroit Home and Day School was incorporated under an act "to establish, maintain, and conduct a seminary of learning." Its only business has been the maintenance of such a seminary, with the usual studies pursued. Its expenses are met by the tuition charges, and its real estate is all occupied by the school buildings: Held, that its real estate was exempt from taxation under Laws Mich. 1885, p. 176, exempting such real estate of "scientific institutions" as is occupied by them for the purposes for which they were incorporated.- Detrott Home and Day School v. City of Detroit, Mich., 43 N. W. Rep. 593.

112. TOWNSHIP OFFICERS-Settlement. Plaintiff succeeded the defendant as township trustee, and, on the accounting and settlement between them, allowed defendant a certain amount for money overpaid on certain township funds. Plaintiff, in a subsequent settlement with the board of commissioners, was given credit for the amount thus allowed: Held, that in the absence of fraud or mistake in the settlement with defendant, and the subsequent settlement with the board of commissioners, plaintiff could not recover from defendant the amount thus allowed him.-Murphy v. Oren, Ind., 22 N. E. Rep. 739.

113. VENDOR AND VENDEE-Warranty.-The neglect or failure of the vendee to record his title does not release the vendor of his obligation of warranty.—Boyer v. Amet, La.,,6 South. Rep. 734.

ST. LOUIS, JANUARY 24, 1890.

THE Illinois State Bar Association, at its recent meeting, considered at great length the subject of reform in the jury system, the verdict in the Cronin case, no doubt having directed attention anew to the peculiar uncertainty of that system. The views of the leading members of the association were conflicting, some favoring a majority, others a three-fourths verdict. It is notorious that jury verdicts in general, are as apt to defeat as to enforce the legitimate demands of the law. It was the idea of its founders, that the requirement of a unanimous conclusion, on the part of twelve men, is the best possible assurance of satisfactory results; but experience is constantly refuting this theory. In most instances the unanimous verdict is only a compromise, and compromises of justice are at once both illogical and indefinite, and in very many cases the apparent agreement of the twelve does not represent the sincere and honest conviction of a single one of the number. Frequently, as in the Cronin case, the verdict is practically rendered by one man, whose obstinacy forces the eleven to accept his opinion.

It is only in the two great English speaking countries that a unanimous conclusion is required of juries. In all the rest of the civilized world a majority vote is sufficient, and it does not appear that justice suffers thereby. But we still cling to the doctrine, which makes legal travesties of many criminal trials, reason being plainly on the side of a different method of weighing evidence and imposing penalties. We are not even consistent in the matter, for we apply the other rule to courts composed of several judges. Thus the seeming absurdity is presented of a verdict, found by the unanimous vote of twelve jurymen, which may be reversed by the majority vote of the judges, who consider it on appeal. Why should not juries have a like privilege of passing upon the merits of the case in a rational and substantial way? The fact that the present method is not yielding sound results is VOL. 30-No. 4.

demand for a change will have to be met sooner or later.

It appears that "trusts" have met with another set back, and at the hands of a California court. A decision has been rendered by Judge Wallace of the Superior Court of California in a suit brought by the attorney general against the American sugar refining company, in which he holds that the company forfeited its corporate franchise by surrendering the control of its business to the sugar trust. In this decision, it will be found that the judge took ground similar to that taken by the New York Supreme Court, in the case against the North River sugar refining company.

THE Supreme Court of Minnesota might, with profit, study the opinion in Harris v. People, recently decided by the Supreme Court of Illinois. That case reiterates the well established rule of the common law, that a prisoner accused of a felony must be arraigned in person, must plead in person, and his personal appearance is required throughout the trial, and at the time sentence is pronounced. And it was further held that the record must affirmatively show that the defendant was present during the trial, a failure in this regard not being aided by those presumptions which the law ordinarily raises in support of the judgments of courts of general jurisdiction. The Supreme Court of Minnesota, not long ago, in the case of State v. Brown, overruled an objection upon the part of the defendant that the record failed to show affirmatively that he was presest throughout the trial. It seems that the record showed his presence at the time of entering plea of not guilty and of giving his testimony, but with these exceptions there was nothing to show the presence of the accused in court from the time of the impannelling of the jury until the sentence was pronounced. From all that appears the defendant might have been in Canada or any other place than the court room when the verdict was rendered and at other periods of the trial, and though the language of the court is not entirely clear, Vanderburgh, J., seems to lay down the rule that if the defendant was absent it should be made affirmatively

to appear. To sustain this remarkable opinion no authorities are cited and the question is but meagerly discussed. If anything were needed to show the error of this position, it might be found in the very exhaustive opinion of the Illinois court before referred to. The distinction between the two courts on the question at issue is the more marked and noticeable from the fact that in the Minnesota case a man's life was at stake in the Illinois case only his liberty.

NOTES OF RECENT DECISIONS.

THE remedies open to an employee engaged for a fixed period, but wrongfully discharged before its expiration, were stated by the Court of Appeals of Maryland in Keedy v. Long, 18 Atl. Rep. 704. There it was held that where an employee, being engaged for a year at a fixed salary, payable monthly, is discharged at the end of two months, and sues and recovers for the salary due up to that time, he cannot thereafter sue his employer for a breach of the contract. The court says:

The contract between these parties was clearly for a definite period—a scholastic year-and not one merely at will. The terms used in the letter quoted are sufficient to establish this, apart from any reference to the nature of the employment, and the character of the services agreed to be performed. Before the expiration of that period the appellee was discharged, and, let us assume in considering the subject, wrongfully, discharged. What, then, were her remedies? It was formerly determined in England, and followed in some cases in this country, that in such a case the servant holding himself in readiness to perform his contract, and being able and willing to do so, was entitled to recover his wages for the whole term, upon the ground of constructive service. This doctrine had its origin in a decision by Lord Ellenborough, at nisi prius, in Gandell v. Potigny, 4 Camp. 375, 1 Starkie, 198. It was followed in other cases, then doubted, again adopted, but finally repudiated altogether, in Elderton v. Emmens, 6 C. B. 160; Goodman v. Pocock, 15 Q B. 576. "A servant wrongfully discharged," says Smith, in his work on Master and Servant (59 Law Lib. 94), "has, however, the two following remedies open to him at law, either of which he may pursue immediately on his discharge: First, he may treat the contract of hiring and service as continuing, and bring a special action against his master for breaking it by discharging him and this remedy he may pursue whether his wages are paid up to the period of his discharge or not; or, secondly, if his wages are not paid up to the time of his discharge, he may treat the contract of hiring and service as rescinded, and sue his master on a quantum meruit for the services he has actually rendered." These two alternative remedies are the only ones open to him. Mayne, Dam. 159. Upon a quantum

meruit, he can only recover for the services actually rendered. Archard v. Hornor, 3 Car. & P. 349; Smith v. Hayward, 7 Adol. & E. 544. In an action for damages for a breach of the contract he will be entitled to recover the actual damages he has sustained, in addition to the wages earned; and, in case he has, by diligence, been unable to secure other employment during the entire term, he can recover the entire wages, less the amount he has actually earned during the interim, or the amount he might have earned by the exercise of proper diligence in seeking for employment in the same or similar business. Wood, Mast. & Serv. 249; Mayne, Dam. 158; Elderton v. Emmens, supra; Goodman v. Pocock, supra. The servant will not be allowed to bring more than one of these afternative actions. Wood, Mast. & Serv. § 125. If he elects to sue upon a quantum meruit, he must treat the contract as rescinded (Bull v. Shuberth, 2 Md. 57); and he will not be allowed to maintain afterwards an action for damages, which action is founded on the assumption of the continuance of the very same rescinded contract. And so, conversely, when he treats the contract as a continuing one, by suing for a breach of it occasioned by his having been wrongfully discharged, he cannot be permitted to recover also upon a quantum meruit, where a recovery presupposes the total rescission of the agreement. Hence, when he pursues one of the two only remedies open to him, he of necessity abandons the other; and a recovery in one would be a complete bar to any subsequent action on the other. This is so in actions of this characters, because the two remedies are alternative. Herein lies the distinction between this class of cases and the decision relied on and cited by the appellee. These latter, of which Davis v. Brown, 94 U. S. 423, is an example, announce a correct doctrine, which however, has no application, for the reason just indicated, to cases like the one now before us. The servant has a choice between two distinct remedies. When he elects to pursue one of them, he is by that selection excluded from resorting to the other. Accordingly, in Goodman v. Pocock, supra, which was an action of assumpsit for work and labor, where it appeared at the trial that the defendant engaged the plaintiff, as a commercial traveler, from January 23, 1847, at a salary of £200 a year, payable quarterly, and dismissed him from that employment on April 8, 1848; that the plaintiff then brought an action for the wrongful dismissal, and the jury gave damages for a portion of unpaid salary up to January 23, 1848, and for disbursements and expenses, and also £50 for the wrongful dismissal, and stated that they had not taken into the account any services rendered between the 23d of January and the date of plaintiff's dismissal-it was held that a ratable portion of salary for the broken quarter commencing January, 1848, could not be recovered, even though Lord Denman, C. J., in the first action had erroneously refused to permit the jury to allow for the services actually rendered during the broken quarter. Coleridge, J., said: "In a case like this the servant may either treat the contract as rescinded, and bring indebitatus assumpsit, or he may sue on the contract; but he cannot do both." Earle, J., Observed: "I am of the same opinion. The plaintiff had the option either to treat the contract as rescinded, and to sue for his actual service, or to sue on the contract for the wrongful dismissal. He choose the latter course; and • he cannot now turn round, and try the former course.'

THE rule as to the imputation of contributory negligence to one who is injured, in an