RECENT CASES. 451 Constitutional Law — Taking Property without due Process of Law. — A Nebraska statute provided that it should be unlawful for any common carrier to give any preference or advantage to. or to subject to any prejudice or disadvantage, any particular person, corporation, etc., in any respect whatsoever. The statute also created a board of transportation for the purpose of enforcing the above provision. The appellant had granted to two private firms the privilege of erecting elevators upon its right of way at a certain station. A number of private individuals petitioned this board of arbitration to give them the right to erect an elevator on the appellant's property, alleging that the two elevators then in existence did not afford sufficient accommodation, and had combined to raise prices. The board made an order in accordance with the prayer of the petition. Held, this order was unconstitutional, in that it deprived the appellant of property without due process of law. Missouri Pac. Ry. Co. V. A^ebraska, 17 Sup. Ct. Rep. 130. This decision reverses the judgment of the Supreme Court of Nebraska, given in 29 Neb. 550. The case seems clear. No question is raised as to the power of the Legislature to compel the appellant to maintain such elevators as are necessary for the accommodation of the public, nor as to its power to exercise a general control over the conduct of appellant's business. On the contrary, the case presents an attempt on the part of the State to compel the railroad to give over its property to a number of private individuals. Admitting that the railroad holds its property for the use of the public, this act of the State deprives it of private property in order that private persons may be benefited. This cannot be considered due process of law. See Wilkinson v. Leland, 2 Pet. 627 ; Davidson v. A^ew Orleans, 96 U. S. 97. As appellant's projierty here was not to be taken for any public purpose, no question of eminent domain arises, and consequently it would seem to make no difference in the present case whether or not appellant was to be given compensation for the loss of its property. Constitutional Law — Trial by Eight Jurors. — The Constitution of Utah declares that a jury shall consist of eight jurors. Held, that this is not a violation of the Fourteenth Amendment. State v. Bates, 47 Pac. Rep. 78 (Utah). See Notes. Contracts — Damages for Breach of Covenant to Convey. — Defendant contracted to convey to plaintiff unimproved land, with warranty of title. Before con- veyance was to be made, plaintiff erected buildings on the land, at his own instance. In an action on the contract to recover damages for failure to convey, the defendant's title having proved defective, held, that the value of the buildings could not be recov- ered. Gebbert v. Congregation of the Sons of Abraham, 35 Atl. Rep. 1 121 (N. J.). This case is good law. The covenant here was simply to convey the land as it then was, and if a purchaser thinks proper to incur expenses, at his own instance, before title passes, he does so at his risk. Smith v. Sniith, 28 N. J. L. 208 ; Flureau v. Thorn- hill, 2 W. Bl. 1078; Bain v. Fothergill, L. R. 7 H. L. 158. In an action on a warranty for eviction, damages are in general confined to the amount of purchase money. One cannot recover for improvements, nor increased value of land; and if no money has been paid for the land, only nominal damages are allowed. Pitcher v. Livingston, 4 Johns. I ; Morris v. Rowan, 17 N. J. L. 304. There is no reason why a different rule should be made in the principal case, where the defendant is unable to convey owing to a defect in the title. Flureau v. Thornhill, and Bain v. Fothergill, supra. Of course, where there is fraud or deceit on the part of the covenantor, the covenantee has his proper remedy, — an action for deceit. CoNiRACTs — Statute or Frauds — Oral Agreement a Defence to Bill IN Equity. — Plaintiff and defendant, railroad companies, each being desirous of crossing the other's tracks at different points, entered into a verbal agreement for such mutual rights of crossing. In pursuance thereof, plaintiff crossed defendant's tracks, but filed a bill to enjoin defendant from crossing plaintiff's tracks at the point agreed upon. Held, that although the contract was void under the statute of frauds, still it might be proved in resistance to a bill for an injunction. Denver, (5r»r. R. R. Co. v. Ristine, 77 Fed. Rep. 58. That a contract within the statute of frauds may be set up as a defence in equity seems well established; Browne, Stat, of Frauds, § 129. Where the action is at law, however, a difference of opinion exists. Kingv. Welcome, 5 Gray, 41, is to the effect that a contract of hiring, within the statute of frauds, cannot be proved to resist a quantum meruit by a plaintiff who has left within the period of service provided for by the contract. The court in that case conceded that, if the contract had been an oral one for the sale of land, and the money had been paid by the vendee, the vendor could set up his willingness to go on with the contract against a suit to recover back the money. It is submitted that no sound distinction can be drawn between the two classes of cases, and that the decision in Philbrook v. Belknap, 6 Vt. 383, which admitted such evidence of a verbal hiring, represents the better law.
