An Ohio statute provides that when the death by wrongful act of an Ohio citizen in a foreign state creates a right of action there, that right may be enforced in Ohio. Held, that the Ohio statute, providing no remedy for the plaintiff, does not make an unconstitutional discrimination between the citizens of different states. Chambers v. Baltimore & Ohio R. R., 207 U. S. 142.

At common law the Ohio courts did not entertain jurisdiction of actions for death by wrongful act arising under foreign laws. Hover v. Pennsylvania Co., 25 Oh. St. 667. The present statute modifies the common law in allowing a remedy for a right so acquired in cases where the deceased was a citizen of Ohio. The citizenship of the person who acquires the right is immaterial. Access to the courts of Ohio will be denied the claimant under the foreign law whether he is a citizen of Ohio or a foreigner, if the deceased was a foreigner, and will be similarly granted if the deceased was an Ohio citizen. Consequently the decision of the court that this statute does not grant fundamental privileges to the citizens of one state which it denies to citizens of other states seems sound. The right of a state to open its courts to its own citizens, and to close them to citizens of other states has never been decided in the Supreme Court. It is interesting to note that the present case assumes, in accordance with previous dicta, that such a discrimination would be unconstitutional. But see 17 HARV. L. REV. 54.

CONSTRUCTIVE TRUSTS MISCONDUCT BY NON-FIDUCIARIES - EFFECT OF CO-DEVISEE'S PROMISE TO TESTATOR UPON OTHER Co-Devisees. — By a drafted will R planned to leave his residuary estate to the defendants as tenants in common. Before signing, however, he desired to add a legacy to the plaintiff. Thereupon Y, one of the defendants, promised R that his wish should be executed, and R signed the will as drawn, the other defendants having no knowledge of Y's promise until after R's death. Held, that only the share of Y is bound by a trust for the plaintiff. Powell v. Yearance, 67 Atl. 892 (N. J., Ct. of Ch.).

Where a devise is secured by an oral promise to apply a part thereof for a third person, the law imposes upon the devisee a trust to fulfill his promise. See 20 HARV. L. REV. 403. Further, where the devise is in joint tenancy, a promise by one joint devisee, though unauthorized by his fellows, imposes a trust upon all. Will of O'Hara, 95 N. Y. 403. This is apparently due to the unity of interest among joint tenants. See 13 HARV. L. REV. 520. The English courts, though confessing the inconsistency, apply the doctrine to joint devisees only where the testator is induced to make a will, and not where he is induced to refrain from alteration. In re Stead, [1900] 1 Ch. 237. In the present case, there being neither agency nor joint tenancy, the promise of Y is not the promise of his co-devisees. Therefore, if a trust is imposed upon the other defendants, it must be in the absence of bad faith on their part. See BIGELOW, FRAUD, 459. Since the whole doctrine is against the policy of the statute of frauds, it seems better to limit it to cases of clear bad faith. See McCormick v. Grogan, 4 Eng. & Ir. App. 82, 89. The cases of codevises are usually so excepted. Edson v. Bartow, 154 N. Y. 199; Tee v. Ferris, 2 Kay & J. 357; contra, Hooker v. Axford, 33 Mich. 453.

COPYRIGHTS - INFRINGEMENT RIGHTS OF ASSIGNEE OF COMMON LAW COPYRIGHT. An artist sold to the plaintiff the exclusive right to reproduce one of his paintings. The plaintiff then took out a statutory copyright, and published photographic copies of the original, each bearing upon its face the notice of copyright. The original was never so marked. The defendant also published copies of the original, claiming that the plaintiff had failed to observe the copyright law. Held, that when an article is copyrighted the original is not a copy and so need not bear on its face notice of the copyright. American Tobacco Co. v. Werckmeister, 207 U. S. 375.

For a discussion of the principles involved, see 19 HARV. L. REV. 380. DAMAGES MEASURE OF DAMAGES BREACH OF WARRANTY AS TO CHARACTER OF SEEDS. The defendant sold to the plaintiff a quantity of

seeds warranted to be alfalfa. The resulting crop contained some alfalfa, but consisted mostly of weeds, and was not marketable. Held, that the plaintiff may recover the value of the crop which would have resulted if all the seeds had been alfalfa. Depew v. Peck Hardware Co., 121 N. Y. App. Div. 28.

The allowance of such prospective profits is usually based on the ground that the parties at the time of the warranty foresaw the use to which the seeds would be put, and that the value of the contemplated crop can be computed with reasonable certainty. Passinger v. Thoburn, 34 N. Y. 634. In the case of bulbs this certainty, at least as to quantity, is obvious, and the rule of the present case applies. Edgar v. Breck, 172 Mass. 581. But if no crop results from the wrong seeds, the evidence of the probable produce of the right seeds in the land and the year in question is insufficient, and hence the only damages recoverable are the expenses of planting and the rental value of the land. Shaw v. Smith, 45 Kan. 334; contra, Phelps v. Eyria Milling Co., 12 Oh. Dec. 692. If there results a crop of the kind contemplated, but of inferior quality, prospective profits are allowed. White v. Miller, 71 N. Y. 118. If, however, the resulting crop is of an entirely different kind, it would seem that the computation of the expected crop is too uncertain. Cf. Bell v. Mills, 68 N. Y. App. Div. 531. The principal case seems to fall on this side of the line, though the fact that some of the expected kind of grass came up may be urged to support the decision.

ELECTIONS CONSTITUTIONALITY OF VOTING MACHInes. A state statute authorized the use of a voting machine whereby the voter made no separate ballot to be counted later, but had to trust to the mechanical accuracy of mechanism which he could not see. Held, that the machine does not fulfil the requirement of the state constitution that elections shall be by written vote. Nichols v. Minton, 82 N. E. 50 (Mass.).

For a discussion of a contrary holding under a slightly different constitutional provision, see 20 HARV. L. REV. 329.

ELECTIONS INDORSEMENT OF BALLOTS WITH RUBBER STAMP. — A statute required that ballots should be indorsed with the initials of a judge of election. The ballots in question bore initials imprinted by a rubber stamp. Held, that the ballots are void. Berryman v. Megginson, 82 N. E. 256 (III.).

As the statute declared that ballots should not be counted unless indorsed by the initials of a judge, it was mandatory, not directory, and strict compliance was necessary. Slaymaker v. Phillips, 5 Wyo. 453. A stamp has been held sufficient where a signature is required. Streff v. Colteaux, 64 Ill. App. 179; Bennett v. Brumfit, L. R. 3 C. P. 28. But to effect the purpose of this statute, the greatest possible prevention of fraud, handwriting should be required. Choisser v. York, 211 Ill. 56. It shows that the ballot was cast in accordance with the law if the judge was honest; it is strong evidence against him if he was dishonest, whereas a stamp is not so strong evidence, since the die can be borrowed, stolen, or duplicated. It is often argued that such a statute as this is unconstitutional because a voter may be disenfranchised through the fault of judges of election. Moyer v. Van de Vanter, 12 Wash. But the weight of authority is that, since a voter is presumed to know the law, if he uses a ballot without the initials of the election judge, his disenfranchisement is justifiable. Miller v. Schallern, 8 N. D. 395.

377.

EMBEZZLEMENT APPROPRIATION BY AGENT OF FUNDS Collected on COMMISSION. An insurance company employed the defendant, who was not a general commission agent, to collect premiums, allowing him to deduct a commission from the funds received. He converted the whole to his own use. Held, that he is guilty of embezzlement. Commonwealth v. Jacobs, 104 S. W. 345 (Ky.).

If the agent is not to have his commission until he hands over to his principal the sum received, he is guilty of embezzlement if he feloniously converts it. Commonwealth v. Smith, 129 Mass. 104. But where he is entitled to deduct his commission before such delivery, he has an interest in the fund, and

it has been held, on the analogy of a similar appropriation by a partner, that he cannot be convicted. McElroy v. People, 202 Ill. 473. Other courts reach the opposite result by making the distinction that the partner receives for the firm of which he is a member, and hence for himself, whereas the agent receives for his principal. People v. Civille, 44 Hun (N. Y.) 497. But the agent is really a joint tenant of the sum. State v. Kent, 22 Minn. 41. And in general a joint tenant cannot steal or embezzle the res. See State v. Kusnick, 45 Oh. St. 535, 540. However, where it is composed of ordinarily separable articles, like a quantity of one-dollar bills, each person's share may be said to consist of a proportionate number of the articles rather than a proportionate interest in each article, and the difficulty of designating the exact objects in which the misappropriating party has no interest should not prevent conviction. 2 BISHOP, CRIM. L., §§ 370, 371.

EMINENT DOMAIN - COMPENSATION EXPENSES FOR STATUTORY ALTERATIONS WHEN HIGHWAY OPENED ACROSS RAILWAY. In an action to condemn a strip of land for a highway across the defendant's right of way, the defendant asked for compensation for the expense of making the alterations required by statute. Held, that the defendant is not entitled to such compensation. City of Grafton v. St. Paul, M. & M. Ry. Co., 113 N. W. 598 (N. D.).

Several jurisdictions hold that a railroad should be compensated for the alterations made necessary by the opening of a highway crossing, though such alterations are required by police regulations. Kansas Cent. R. R. Co. v. Board of County Commissioners, 45 Kan. 716. There is an equal amount of authority, however, holding, in accord with the present case, that the railroad should not be compensated for alterations required by police regulations. Chicago, Mil. & St. P. Ry. Co. v. City of Milwaukee, 97 Wis. 418. These decisions seem unsound on principle, for the expense of the alterations is caused by the condemnation. When taking land by eminent domain imposes on the adjoining owners a statutory duty of erecting new fences, compensation for the fencing must be made. Raleigh, etc., R. R. Co. v. Wicker, 74 N. C. 220. But by holding arbitrarily that the railroad impliedly undertakes to make the changes necessitated by new highway crossings, the Supreme Court has denied the railroad compensation. C., B. & Q. R. R. v. Chicago, 166 U. S. 226. A statute in New York imposing this burden on railroads, and held constitutional as an exercise of the power of amending charters reserved to the legislature, effects the same result. The Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345. Without such a provision it is submitted that the principal case should not be followed.

EQUITABLE CONVERSION · CONVERSION BY WILL PROVIDING FOR SALE AFTER TERMINATION OF PARTICULAR ESTATE. - A testator devised land to his wife for her life or widowhood, and directed that at her death or marriage it should be sold and the proceeds divided among their children. Held, that before the death or marriage of the widow, a son has an interest in the property attachable as realty. Williams v. Lobban, 104 S. W. 58 (Mo., Sup. Ct.).

When a testator by his will directs the sale of land at his death, and a distribution of the proceeds, the beneficiaries get no interest which can be attached as an interest in realty. Brolasky v. Gally's Executors, 51 Pa. St. 509. By the weight of authority, when the sale is not to be effected until a future time which is certain to arrive, such as a fixed date, or the termination of a life estate, the conversion takes place at the testator's death. Handley v. Palmer, 103 Fed. 39; Lash v. Lash, 209 Ill. 595. There are, however, a considerable number of cases which hold, in accord with the present decision, that the conversion occurs at the time appointed for the sale. Savage v. Burnham, 17 N. Y. 561. The majority view, however, seems correct. The conversion is due to the creation of a right to specific performance in equity; it should therefore take place when that right is created, and though it cannot be enforced until a later time, the right is created at the testator's death. See 18 HARV. L. REV. 266.

EVIDENCE DECLARATIONS CONCERNING MATTERS OF PUBLIC or GenERAL INTEREST PROCEEDINGS OF A MEDICAL COUNCIL. A medical council, acting within its statutory powers, ordered the removal of the plaintiff's name from the registered list of dentists on a report charging him with "conduct disgraceful in a professional respect." In a subsequent civil suit the defendant sought to prove the plaintiff's "professional misconduct." Held, that the order of the council is admissible. Hill v. Clifford, [1907] 2 Ch. 236.

But

The court regarded the order of the medical council as analogous to the finding of a lunacy inquisition. In so far as the order or findings of these related commissions, made under state authority, determine the status of an individual, they may be considered as judgments in rem. 2 SMITH, Lead. Cas., 11 ed., 752. And on this ground the court found the evidence admissible. a judgment in rem, although conclusive evidence of the relations which it establishes, is not evidence of the facts which must necessarily be found before it can be rendered. Ward v. The Fashion, 6 McLean (U. S.) 195. For these determinations of the court are in personam and only admissible between parties and privies. TAYLOR, Ev., 9 ed., § 1673. As a judgment in rem, therefore, the admission of the order is proper only to show that the plaintiff was no longer a registered dentist, a fact not material to the issue raised. But the finding of a lunacy inquisition is always admissible against strangers as presumptive, not conclusive evidence of the fact of insanity, on the principle that the proceedings are matters of public and general interest. Hughes v. Jones, 116 N. Y. 67; 1 GREENLEAF, Év., 15 ed., § 556. And similarly, the report and order of this expressly authorized and publicly administered council are obviously trustworthy, and seem admissible.

GARNISHMENT

GARNISHMENT PROPERTY SUBJECT TO GARNISHMENT OF OBLIGATION WITHOUT JURISDICTION OVER OBLIGEE. A life insurance policy issued by a foreign corporation transacting business in New York in favor of non-resident beneficiaries was assigned to a New York creditor as security for advances. The insurance being due, the creditor garnished the insurance company in New York. The beneficiaries were served by publication. Held, that the garnishment is valid. Morgan v. Mutual Benefit Life Ins. Co., 189 N. Y. 447.

For a discussion of the case in the lower court, see 21 HARV. L. REV. 219.

ILLEGAL CONTRACTS - CONTRACTS AGAINST PUBLIC POLICY AGREEMENT EXEMPTING RAILROAD FROM STATUTORY LIABILITY FOR LOSS BY FIRE. A South Carolina statute provided that a railroad should be liable for any damage to goods on its premises caused by fire, unless the goods were placed there without its consent. The plaintiff put cotton on the defendant railroad's platform under a contract which stipulated that the cotton was put there without the consent of the railroad and at the owner's risk. Held, that the plaintiff cannot recover for the destruction of the cotton by fire. GermanAmerican Ins. Co. v. Southern Ry. Co., 58 S. E. 337 (S. C.).

It seems clear that the railroad consented to the placing of the cotton on its premises, but attempted to exempt itself by contract from its statutory liability. It is sometimes argued that the object of statutes like the one in question is to make railroads more careful in the construction and operation of their engines. See Rodemacher v. Mil. & St. P. Ry. Co., 41 Ia. 297, 309. But the true reason for such statutes seems to be based on the equitable principle that, as between two innocent parties, the loss should fall on the one who, by the use of a dangerous agency, makes such loss possible. McCandless v. Richmond, etc., R. R. Co., 38 S. C. 103; see St. Louis, etc., Ry. Co. v. Mathews, 165 U. S. 1. It is settled law that a contract exempting a railroad from its common law liability for loss by fire is not against public policy. Hoadley v. Northern Transportation Co., 115 Mass. 304. Consequently, there would seem to be no reason in public policy why an innocent party may not exempt himself by contract from an exactly similar liability imposed by statute. In accordance with this view, under similar statutes in Iowa and Missouri, such contracts have been

held not to be against public policy. Griswold v. Ill. Cent. Ry. Co., 90 Ia. 265; American Cent. Ins. Co. v. Chicago & Alton Ry. Co., 74 Mo. App. 89.

ILLEGAL CONTRACTS - CONTRACTS AGAINST Public POLICY - CONTRACT BASED ON BREACH OF EXISTING COntract. - The plaintiff was under contract for one year with F, a competitor of the defendant. The defendant made a secret agreement with the plaintiff to employ him for two years. This involved a breach of the contract with F, and was done to destroy F's business. Held, that the plaintiff cannot recover his salary, or for materials furnished. Rhoades v. Malta Vita Pure Food Co., 112 N. W. 940 (Mich.).

It is often averred that contracts involving the commission of a civil injury to a third person are illegal. 15 AM. & ENG. ENCYC., 2 ed., 943; 9 Cyc. 468. Under this broad language an agreement by A to buy goods of B would be unenforceable by B if the sale involved a breach of B's contract to deliver the same goods to C. Parties guilty of unlawful acts are not to be outlawed to that extent. Cf. Nat'l, etc., Co. v. Cream City Co., 86 Wis. 352. Such cases fall rather within the class where the illegality is separate from the contract, which is therefore valid. Armstrong v. Toler, 11 Wheat. (U. S.) 258. Accordingly, the rule should be limited to cases where the injury involved forms the actual consideration for the promise to be enforced. In the present case the consideration services rendered was lawful, and the fact that the motive inducing the defendant's promise was the violation of the plaintiff's obligation to F should not make it illegal. However, though improperly included within the general rule, the decision may be supported on the ground that the plaintiff participated in an illegal conspiracy and that it is against public policy to enforce contracts between conspirators. Cf. Veazey v. Allen, 173 N. Y. 359.

INSOLVENCY RIGHTS OF SECURED CREDITORS AGAINST INSOLVENT ESTATE. Upon the death of his debtor a secured creditor filed his claim with the administrator for the full amount of his debt. The estate proved to be insolvent. The secured creditor foreclosed on his security before any debts of the decedent had been paid, and contended that he was entitled to a dividend on his claim as originally filed. Held, that the creditor can only receive a dividend on the amount due at the time of payment. In the Matter of the Estate of Lavinia Kapu, Deceased, Sup. Ct. of Hawaii, Sept. 10, 1907. See NOTES,

P. 280.

INSURANCE MUTUAL BENEFIT INSURANCE INVALID CHANGE OF BENEFICIARY. - A member of a mutual benefit association surrendered the original beneficiary certificate and procured the issue of another, naming a new beneficiary who was by statute incapable of taking. After the member's death the beneficiary of the original certificate sued the association for the proceeds. Held, that the proceeds will be distributed as though no beneficiary had been named. Grand Lodge, etc. v. Mackey, 104 S. W. 907 (Tex., Civ. App.). See NOTES, p. 278.

INTERSTATE COMMERCE CONTROL BY CONGRESS FEDERAL EMPLOYERS' LIABILITY ACT. - The Act of Congress of June 11, 1906, c. 3073, 34 Stat. at L. 232, 233, provided that “every common carrier engaged in trade or commerce . . . .. between the several states . . . shall be liable to any of its employees or in case of death to his personal representative. . . for all damages which may result from the negligence of any of its officers, agents, or employees.

Held, that the statute is unconstitutional. Howard v. Illinois Central R. R., U. S. Sup. Ct., Jan. 6, 1908.

The five justices forming the majority agreed only on the ground that the terms of the statute were so broad as to include intra-state commerce, that as to this the statute was unconstitutional, and that this portion could not be separated from the rest. The dissenting justices were unanimous in rejecting this interpretation. Two members of the majority joined the four in the minority in declaring that Congress had the power to prescribe such a rule of liability, if