the city by a fine, the proceeding, even though by complaint, may well be considered civil rather than criminal. On the other hand, if the object is to penalize the offender, it would seem that the proceeding to collect the fine, unless it be an action of debt, and certainly the proceedings to impose a penalty of imprisonment, would be of a criminal character. The statement of the principal case, therefore, that such proceedings are merely civil would seem too broad; yet two convictions may be supported in such cases on the ground above suggested that the constitutional protection against double jeopardy was not intended to extend to punishment for violation of a city ordinance.

WHAT CONSTITUTES A CLOG ON THE EQUITY OF REDEMPTION? The principle that an extortionate or oppressive contract is not necessarily enforceable because voluntarily made has been thought especially applicable to money-lending transactions. Accordingly, if the borrower gives security there is a rule that he may repudiate any part of his mortgage agreement that clogs the equity of redemption. Definitions of such an agreement, differing substantially, appear successively in English cases. The original test, whether the mortgagor promises something beside repayment of the loan with interest, was succeeded by one less sweeping, namely, whether the mortgagor's by-agreement makes redemption harder. Biggs v. Hoddinott, [1898] 2 Ch. 307. Then it was reasoned that if the mortgage given was a security as well for the performance of any additional agreement as for repayment of the loan, redemption was made no harder because that very agreement became part of the mortgageobligation. Santley v. Wilde, [1899] 2 Ch. 474; see 13 HARV. L. REV. 595. It was problematical whether this decision left any case to which the rule against clogging redemption could apply; for by the admitted test there was no clog unless the burden of redeeming was increased, and by the decision itself agreements which most directly increased that burden were valid as becoming part of the mortgage transaction. Recently the question was neatly raised. A lessee of a public-house mortgaged his term, and purported to bind the land by a covenant to sell there none but the mortgagees' liquors. The incumbrance of the covenant was to exist during the whole term, even after the mortgage was satisfied. This particular stipulation the Court of Appeal held unenforceable, as being without the rule of Santley v. Wilde, supra, because not secured by the mortgage. Rice v. Noakes & Co., [1900] 2 Ch. 445. The paradox is that if the mortgage had secured the covenant the bargain, though harder than that in the principal case, would have been sustained. The House of Lords, in affirming the decision, chose rather to disapprove Santley v. Wilde. Noakes & Co., Ltd., v. Rice, [1902] A. C. 24.

The decision has more than the mere effect of weakening the rule in Santley v. Wilde. The covenant made redemption no harder, if by redemption is meant obtaining a reconveyance of the term. The judgment, however, interprets redemption in this connection as meaning a reacquisition by the mortgagor of the property in the condition in which he transferred it. The covenant is accordingly held invalid so far as it caused an incumbrance on the land outlasting the mortgage. The technical nature of this result appears in the technical distinctions which it necessitates. A covenant binding land not covered by the mortgage

would be no less onerous than the one under discussion. Presumably, however, such a covenant would be enforced; for the present rule affects only agreements restricting the mortgagor's rights in the particular property he mortgages. In fact, in a decision rendered pending the appeal to the House of Lords in the principal case, the rule was held to be limited to agreements enforceable specifically in equity against that property. Carritt v. Bradley, [1901] 2 K. B. 550 (C. A.). The mortgage was of a stockholder's controlling interest in a company. The court sustained the mortgagor's collateral agreement to use this interest always thereafter to secure employment for the mortgagee by the company. There seems to be no true distinction from Noakes v. Rice, supra, for whether the remedy for breach is equitable or merely legal does not concern a mortgagor who keeps his promise. In one case as much as in the other his use of the property is hampered. A recent Irish case approved in the judgment of the House of Lords in Noakes v. Rice, supra, does not recognize any such distinction. Browne v. Ryan, [1901] 2 I. R. 653.

Whether American courts will have to solve the complexities suggested by these cases and how they may do it is conjectural, for the whole doctrine seems yet undeveloped here. Cf. Uhlfelder v. Carter's Admr., 64 Ala. 527; Northwestern, etc., Ins. Co. v. Butler, 57 Neb. 198.

MEASURE OF DAMAGES ON A CONTRACT WHEN THE DISCHARGED EMPLOYEE GOES TO WORK FOR HIMSElf. In an action by an employee for breach of the contract of service, the law aims to compensate him for his actual loss. Goodman v. Pocock, 15 Q. B. 576. It is, however, his duty, under the doctrine of avoidable consequences, to use reasonable care to reduce his damage by securing other employment; and the amount that he can recover is limited to the difference between what he would have received under the contract, and what he has earned or might with due diligence have earned elsewhere during the term of the employment. Ream v. Watkins, 27 Mo. 516; Dickinson v. Talmage, 138 Mass. 249. A nice question is presented when the injured party, instead of entering the service of some one else or remaining idle, goes to work on his own account. It has recently been decided that in such a case the amount recoverable is the difference between the contract price, and what must have been paid to another to do the work that the injured party has done in his own business. Lee v. Hampton, 30 So. Rep. 721 (Miss.). Only two cases with similar facts have been found. Huntington v. Ogdensburgh, 3 How. Pr. (N. Y.) 416; Harrington v. Gies, 45 Mich. 374. The first is in agreement with the principal case, while the second allows no deduction whatever. It does not appear in any of these cases whether the total profits of the injured party in his own business were greater or less than the sum that he would have had to pay a servant to take his place in conducting it. If they are greater it is obvious that the surplus ought not to be considered in mitigation of his damages, because he might have invested in the business even if he had continued in the defendant's employ and thus have earned that amount in any event. When this is the case, and also when the profits of the business and the value of his labor are equal, the rule in the principal case produces the correct result, awarding to the injured party the amount of his actual loss. But when the profits are less than the value of his labor the rule

seems to fail. In such a case the loss to the plaintiff is the difference between the contract price and the actual profits, rather than the value of his labor, and that amount he ought to recover. Since the object of the law is to make the injured party whole, it would seem that the true measure of damages in cases of this kind is, the difference between what he would have received under the contract, and the amount that he has earned or might with due diligence have earned elsewhere and which he could not have earned if he had continued in the defendant's service under the contract

CONCERNING THE SURETY OF A BANKRUPT. - In a recent federal case a creditor had innocently received, by way of preference, part payment of a note which was one of several debts due him. The debtor having become bankrupt, his surety paid the balance due on the note. Though the surety had claims on other debts due to himself, the court ruled that he should pay in the amount of the preference before he could make any proof against the estate, and put no such condition on the creditor. In re Siegel-Hillman, etc., Co., 111 Fed. Rep. 980 (Dist. Ct., E. D. Mo.). The court argues that if the creditor were obliged to refund the preference and accept a dividend from the bankrupt's estate, the surety being solvent would ultimately be obliged to make up to the creditor the full amount of the note, and take a dividend from the estate by way of subrogation. The final result would be the same as if the surety refunded the preference at once, and took his dividend, and since the rights of other creditors would not be affected, the court having equity powers could simplify the means to the end. Section 57 i of the Bankruptcy Act provides that if a surety discharge his undertaking to a creditor of a bankrupt "in whole or in part, he shall be subrogated to that extent to the rights of the creditor." This provision is taken to mean that the surety can proceed only by subrogation. Such a suit being in the right of the creditor, the fact that the latter has received a preference, and cannot prove unless it is paid back is a complete defence. Morgan v. Wordell, 178 Mass. 350. There seems to be no reason, however, for not allowing proof of the surety's other claims in his own right.

But in addition to this it is difficult to see why the court should care whether the creditor or the surety pays back the preference. The court says that if the creditor does so, the debt will not in equity be considered paid, and the original maker, and consequently the surety co-maker, will still be liable. To support this proposition the court cites Bartholow v. Bean, 18 Wall. 635. That case decided merely that a preference which the trustee in bankruptcy could set aside is not the less void because there is a solvent surety on the obligation. In the principal case, as the court agrees, the creditor cannot be deprived of the preference, which he took in good faith. But if he wishes to prove other claims he must refund it. Section 57 g. The court ruled in the course of the opinion that the surety need not turn in the amount of a preference to an innocent creditor, on whose claim also he was bound, but all of whose debts had been paid in full by the preference. These two rulings make the surety's release depend on the accident of the creditor having other claims against the principal debtor, and therefore having a motive for surrendering his preference. It is submitted that such other claims, with which the surety has nothing to do, should not be considered in determining his rights.

Since the payment of the preference was in itself unassailable, it should be considered as having at once discharged the surety pro tanto. The justice of the holding as to the creditor who had no other claim is apparent. It seems therefore that as to the amount the principal paid to the other creditor, the surety should be discharged, and so cannot equitably be forced to pay it back and take a dividend. If the preference is not restored by one or the other, the surety, of course, cannot recover the amount he has paid on the debt, and the creditor should not be allowed to prove his other debts. If the money is refunded, proof in both these cases is proper. Who shall make the payment would seem under the circumstances a question for the parties to settle among themselves, and a matter of indifference to the court, supplying therefore no ground for intervention.

CORONERS' VERDICTS AS EVIDENCE IN SUBSEQUENT TRIALS. -The office of coroner, though often stated as dating from the statute of Edward I., is apparently of more ancient origin. I POLL. & MAIT., HIST. ENG. LAW, 583. His duties are both ministerial and judicial at common law. 1 Bac. Abr., 6th ed., 756. Of these the chief one is to conduct an inquisition before six jurymen into the causes of the death of persons coming to a violent or sudden end within his jurisdiction. Their verdict must be signed and sealed and handed to the proper authorities. In the old days this verdict was held in cases of suicide, or felo de se, to be conclusive against the executor of the deceased. 3 Co. INST. 55. And a verdict of acquittal in favor of one accused by the coroner's jury was not received by the judge unless the jury also found who or what had caused the death of the deceased. 13 Edw. IV. c. 3, pl. 7. Lord Hale, however, was of the opinion that this rule was most unjust, and he practically changed the law, making all findings of an inquisition traversable. I HALE, P. C., 416, 417. He cited as authority for this a record in the Exchequer, East 45 Edw. III., where the jury found adversely to the inquisition. A refinement appears later that the finding a deceased not felo de se is not traversable, nor a fugam fecit, though the affirmative finding is. I Wms. Saund. 663. And lunacy and post mortem inquisitions are somewhat similarly treated, being considered as good evidence, but not conclusive. Sergeson v. Sealey, 2 Atk. 411; Burridge v. Lord Sussex, 2 Raym. 1292. The modern law draws a distinction between inquisitions of lunacy, of office, etc., and coroners' inquests. The former are generally considered as admissible evidence, but not conclusive. Stokes v. Dawes, 4 Mass. 268. The principle of their admissibility is apparently that they are matters of public and general interest, and have peculiar guaranties for accuracy and fidelity. GREENL., Ev., 15th ed., § 556. One authority considers them similar to judgments in rem, in that they are equally admissible against strangers as well as parties, but dissimilar in that they are not conclusive against anybody. 2 TAYL., Ev., 6th ed., § 1487. The distinction noted seems clearly tenable on the ground that inquisitions determine status, whereas coroners' inquests find facts. The law with regard to the latter proceedings is in square conflict. In civil suits some courts have admitted the verdict in evidence as the result of proceedings of a judicial nature, or as the act of a public officer under official oath and in discharge of a public duty. Lancaster v. Mishler, 100 Pa. St. 624; United States, etc., Ins. Co. v. Vocke, 129 Ill. 557. But

In

in similar actions an opposite result has been reached as a matter of policy, and on the ground that the duty was not a judicial one. Insurance Co. v. Lewin, 24 Col. 43; State v. County Com'rs, 54 Md. 426. criminal cases the law, though meagre, is to-day practically universal that the verdict of a coroner's jury is inadmissible at the subsequent trial, even as prima facie evidence. Crisfield v. Perine, 15 Hun (N. Y.) 200; Colquit v. State, 64 S. W. Rep. 713 (Tenn.). Yet in Louisiana the verdict, though not competent as proof of crime, is admissible to show the fact of the deceased's death. State v. Parker, 7 La. Ann. 83. And in at least one jurisdiction depositions taken before the coroner are admissible to impeach the credibility of a witness. People v. Devine, 44 Cal. 452.

The exclusion of this form of evidence seems proper. It is purely hearsay, and is the mere opinion of a lot of men hurriedly gathered together, who have not time to look into the facts carefully, and who have had only slightly better opportunities of discovering the truth than the trial jury itself. Lastly, it is peculiarly dangerous, being much open to abuse by the jury. It is a temptation to them to use some other men's judgment instead of their own. A sound policy removes all such temptations from the jury whenever possible.

INTERFERENCE WITH LIGHT AND AIR BY ELEVATED RAILROADS. In a recent decision the New York Court of Appeals reached a conclusion seemingly inconsistent with the position of that court in the famous elevated railway cases. An action was brought for injury to the plaintiff's easements of light and air by the operation of the defendant's railroad upon an elevated structure in Park Avenue, New York City. The defendant had acquired the right to run its trains in front of the plaintiff's property in a depressed cut through the centre of Park Avenue. In 1892 the State Legislature enacted a bill providing for the erection of a viaduct upon which the defendant's trains should be operated and the filling in and opening up of the depressed cut for general street purposes. The work was to be done under the direction of a board appointed by the mayor, one half of the expense being paid by the defendant and the remainder raised by assessment upon property benefited. The defendant was directed to run its trains upon the structure when completed. Pursuant to this act the viaduct was erected and in 1897 the defendant began running its trains upon it. The plaintiff claimed damages for the injury to his light and air from that date. By a divided court recovery was denied. Fries v. N. Y. & H. R. R., 169 N. Y. 270. The position taken by the prevailing opinion was that the injury to the plaintiff arose in consequence of the grading of the street and was therefore damnum absque injuria; that the injury was caused by the act of the state and not by that of the defendant; and, finally, that if the defendant in operating its trains trespassed upon the property rights of the plaintiff the proper remedy was an attack upon the constitutionality of the act, which question could not be raised for the first time in the Court of Appeals.

The decision seems inconsistent with the established New York doctrine that an injury to easements of light and air by the operation of an elevated railroad constitutes a taking of property within the meaning of the constitution. Story v. N. Y. EI. R. R., 90 N. Y. 122. The improvement in question is obviously something more than the grading of a