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method of prevention. Of course, the latter lays the foundation for establishing negligence, but it does not in itself indicate that the injury could have been foreseen. As to public policy, there is still some objection. But subsequent repairs are admitted to show ownership or control. O'Malley v. Twenty-Five Associates, 170 Mass. 471, 49 N. E. 641. And also to rebut testimony descriptive of the premises before the injury. McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153. The objection certainly has less force here than when applied to negligence, and it seems proper to confine it to that situation. In accord with the principal case on causation, see Kuhn v. Illinois Central Ry. Co., 111 Ill. App. 323; Texas & N. O. R. Co. v. Anderson, 61 S. W. 424 (Tex. Civ. App.). In accord with it on the possibility of prevention, see St. Louis, etc. Ry. Co. v. Johnston, 78 Tex. 536, 15 S. W. 104; Lind v. Uniform Stave and Package Co., 140 Wis. 183, 189, 120 N. W. 839, 842.

EVIDENCE HEARSAY: IN GENERAL — ADMISSIBILITY OF TELEPHONE CONVERSATIONS - RES GESTA. - In an action on an insurance policy the issue was whether the company had received notice of an assignment to the plaintiff. The witness testified that he had seen the policy-holder go to a telephone, had heard him ask for the company and give the notice, and that immediately thereafter the policy-holder had told him that the company was willing to make the transfer. Held, that the evidence is admissible. Northern Assurance Co. v. Morrison, 162 S. W. 411 (Tex. Civ. App.).

The difficulties of the principal case are distinct from the line of authority which permits the person who did the talking to testify as to what he had heard over the telephone provided he recognized the voice. Shawyer v. Chamberlain, 113 Ia. 742, 84 N. W. 661. See 20 HARV. L. REV. 156. Here both aspects of the testimony seem to violate the hearsay rule. As to the alleged notice, it is hearsay because the witness has no personal knowledge to indicate what individual, if any, is at the other end. It might be accepted as a matter of common knowledge that hearing the call placed practically insures this identity were it not for the fact that the listener has no means of assuring himself that the user of the telephone is not either carrying on a wholly fictitious conversation or talking to an accomplice. But when the lack of personal knowledge has been supplied by extrinsic evidence that a real conversation took place, the evidence becomes admissible. Authority on the point is scant, but it recognizes this distinction. Miles v. Andrews, 153 Ill. 262, 38 N. E. 644; McCarthy v. Peach, 186 Mass. 67, 70 N. E. 1029. It also appears unsound for the court to admit the subsequent declaration as part of the res gesta, since it is neither contemporaneous nor properly explanatory. Its only force is to indicate what the other party said, and in that respect it is pure narration. Waldele v. New York Central & H. R. R. Co., 95 N. Y. 274. See THAYER, LEGAL ESSAYS,

207.

JUDICIAL NOTICE

EVIDENCE - A REPORTS TO RAILROAD COMMISSION. finding by a railroad commission that certain rates were unreasonable was based on facts contained in certain reports filed, pursuant to statute, by other railroad companies with the commission itself, and with the state board of assessments. These reports had not been introduced in evidence, but were spread on public records. Held, that the reports were proper subjects of judicial notice. Chicago & N. W. R. Co. v. Railroad Commission, 145 N. W. 216 (Wis.). Cases of judicial notice of census returns and of legislative journals seem most closely analogous. Chicago & A. R. Co. v. Baldridge, 177 Ill. 229, 52 N. E. 263; Dane County v. Reindahl, 104 Wis. 302, 80 N. W. 438. But by the better view even the latter are merely admissible evidence. Grob v. Cushman, 45 Ill. 119. See WIGMORE, EVIDENCE, § 2577. The propriety of judicial notice, by a strictly judicial tribunal, of the contents of records like those in the principal

case seems even more questionable. Since they are unofficial statements, their hearsay element renders them less trustworthy, and their contents are neither matters of general notoriety nor of general public interest. Such reports are often made admissible evidence by statute. See, for example, INDIANA ACTS, 1907, ch. 241, § 5. But hearings before administrative boards are conducted under more liberal rules. See Interstate Com. Comm. v. Baird, 194 U. S. 25, 44, 24 Sup. Ct. 563, 569; Cincinnati, H. & D. R. Co. v. Interstate Com. Comm., 206 U. S. 142, 149, 27 Sup. Ct. 648, 651. In general, even here, information gleaned outside a particular hearing may not be used to support the finding in that hearing. Atlantic, C. L. R. Co. v. Interstate Com. Comm., 194 Fed. 449. See United States v. Baltimore & O. S. W. Ry. Co., 226 U. S. 14, 20, 33 Sup. Ct. 5, 6; Interstate Com. Comm. v. Louisville & Nashville R. Co., 227 U. S. 88, 93, 33 Sup. Ct. 185, 187. But this requirement seems to be merely to insure fairness, and nothing unfair appears in taking judicial notice of the contents of public records provided for the very purpose of informing the commission, and open to the use of all concerned.

GOOD WILL SOLICITATION OF CUSTOMERS AFTER INVOLUNTARY SALE OF GOOD WILL. The defendant was a member of a partnership in the boot trade which made an assignment for the benefit of creditors. The assignee sold the business with the good will to the plaintiff. The defendant later in the employment of another firm solicited the trade of his former customers. Held, that the defendant will not be enjoined. Green & Sons v. Morris, Weekly Notes 65 (Eng. Ch. Div., Feb. 6, 1914).

For a discussion of the question here raised, see this issue, p. 670.

HUSBAND AND WIFE-CONTRACTS BETWEEN HUSBAND AND WIFE-VALIDITY OF SEPARATION AGREEMENTS. A husband and wife, living apart, made an agreement under seal with a trustee by which the husband promised, in contemplation of a reconciliation, to pay the wife a weekly allowance; and in the event of a future separation because of his drinking or cruelty, he agreed to pay for her comfortable maintenance. Held, that the agreement is valid. Terkelsen v. Peterson, 104 N. E. 351 (Mass.).

The Massachusetts court has held that a note given the wife by her husband in consideration of the resumption of the marital relation is void on the ground that it is against public policy for money to have influence in such a matter. Merrill v. Peaslee, 146 Mass. 460, 16 N. E. 271. Contra, Barbour v. Barbour, 49 N. J. Eq. 429, 24 Atl. 227; Burkholder's Appeal, 105 Pa. 31. As the court points out, however, the arrangement here is fixing a sum for the support of the wife, due her from him, and not a payment for her return. The stipulation for support in the contingency of fresh separation is more troublesome. A separation agreement to take effect immediately, or made when separation has occurred, is valid. Clark v. Fosdick, 118 N. Y. 7, 22 N. E. 1111; Henderson v. Henderson, 37 Ore. 141, 60 Pac. 597. But an agreement for a future separation is held void. Hindley v. Westmeath, 6 B. & C. 200. In the principal case the contingencies on which separation might occur, drinking and cruelty, would be grounds for divorce. This might well weigh in favor of the agreement, although it is to be remembered that courts wish to keep divorce matters in their own hands. Harrison v. Harrison, [1910] 1 K. B. 35. The court also says that the agreement is for payment after separation, and not for separation; but this distinction seems invalid and is not supported by the cases. On the whole the agreement here is certainly more in favor of the marriage relation than against it, and the court has justly held it valid. Hite v. Hite, 136 Ky. 529, 124 S. W. 815.

INJUNCTIONS ACTS RESTRAINED - ILLEGAL CLAIM TO PUBLIC OFFICE. — The office held by the plaintiff was illegally declared vacant and a successor

appointed. The plaintiff, in possession, seeks to enjoin the appointee from taking the oath of office and the county clerk from administering it. Held, that the injunction will not issue. Price v. Collins, 89 Atl. 383 (Md.).

To oust one wrongfully in possession of an office, proceedings in quo warranto afford an adequate remedy at law. The King v. The Mayor of Colchester, 2 T. R. 259. Consequently an injunction will not issue for this purpose. Arnold v. Henry, 155 Mo. 48, 55 S. W. 1089; Hurlo v. Hahn, 75 Wis. 468, 44 N. W. 507. But quo warranto is not available to protect one actually in possession against wrongful claimants. The King v. Whitwell, 5 T. R. 85; Osgood v. Jones, 60 N. H. 282. Furthermore, neither a writ of mandamus nor a writ of prohibition will issue, since the former is solely affirmative, and the latter is only available to restrain the wrongful exercise of judicial functions. People v. Ferris, 76 N. Y. 326; State v. Justices, 41 Mo. 44. One in possession, however, may merely refuse to relinquish his possession. Coleman v. Glen, 103 Ga. 458, 30 S. E. 297. His acts will be valid as a de facto, if not de jure, public officer. State v. Williams, 5 Wis. 308. Whether, if the later appointee should wrongfully turn the plaintiff out, the latter could recover the emoluments of the office, has not been decided in Maryland. The better view would allow such recovery. Mayor v. Woodward, 12 Heisk. (Tenn.) 499, 79 Me. 484, 10 Atl. 458 (and see note, 10 Am. St. Rep. 284). The weight of authority indeed is contra. Commissioners v. Andrews, 20 Kan. 298. But for the purposes of this case an adequate protection at law for such rights may be assumed. The mere right to public office is solely political, and not a property right, even in the broad sense of substantial rights. Taylor v. Beckham, 178 U. S. 548, 20 Sup. Ct. 1009. In general, equity concerns itself only with the protection of rights of the latter class. So that illegal proceedings for an officer's removal, or, as in the principal case, the appointment and qualification of his successor, which only cloud the rightful incumbent's title to the office, will not be enjoined. White v. Berry, 171 U. S. 366, 18 Sup. Ct. 917; People v. District Court, 29 Colo. 277, 68 Pac. 224. On the other hand, if a substantial injury is threatened, as by a physical interference with the possession of property, equity will enjoin it as any other trespass is enjoined. Huntington v. Cast, 149 Ind. 255, 48 N. E. 1025; Brady v. Sweetland, 13 Kan. 41. Contra, State v. Seehon, 143 Mo. App. 182, 128 S. W. 250. The right to such an injunction is dependent solely on possession, irrespective of title, and it will issue as well for an officer de facto as de jure. State v. Superior Court, 17 Wash. 12, 48 Pac. 741. And from a policy of securing the orderly administration of public affairs, equity often acts after a threat of merely nominal interference. Seneca Nation v. Jimeson, 62 N. Y. Misc. 91, 114 N. Y. Supp. 401. But the principal case is clearly correct, since there was no threat of interference whatever.

INSURANCE - EMPLOYER'S LIABILITY INSURANCE — LIABILITY OF INSURER FOR EXPENSE INCURRED BY EMPLOYER IN DEFENSE OF A CLAIM BY AN IN

JURED EMPLOYEE. - An insurance company insured an employer against liability to any employee up to $1500, the company to have the option to defend any actions brought. An injured employee offered to settle for $1500, but the company chose to defend, and a verdict for $6000 resulted. On the company's refusal, the insured appealed at his own expense, and the complaint was dismissed. The insured then sued the company for the expenses of the appeal, $2211, and was permitted to recover. Brassil v. Maryland Casualty Co., N. Y. L. J. 2791.

The court negatived the existence of any express or implied duty to appeal, arising from the contract, or any general duty that the insurance company must always appeal whenever they defend. But it held that in the peculiar circumstances, where the insurance company, by refusing to compromise, throws on the insured the risk of a verdict larger than the indemnity contracted for,

and accepts no added risk itself, there is a duty to do all things reasonably necessary to protect the interests of the insured, even though such action would not result in any benefit to themselves. Since this does not necessarily imply a fiduciary relation between insurer and insured, such a limited obligation, though novel, would seem just and beneficial. Another explanation of the case would be the existence of relational duties between insurer and insured as between principal and agent. But it is doubtful if these exist. Cf. Everson v. Eq. Life Assur. Soc., 71 Fed. 570. See RICHARDS ON INSURANCE, § 70. If such a duty is denied, recovery might be had on quasi-contractual principles. The complainant is not an officious intermeddler, nor does the benefit to the defendant seem to be merely incidental when compared with cases allowing recovery by a co-tenant of payments for repairs and taxes. United States v. Pac. R. Co., 120 U. S. 227; Calvert v. Johnson, 99 Mass. 74; Graham v. Dennigan, 2 Bosw. (N. Y.) 516. On this ground, however, the measure of damages would appear to be only one-fourth of the expenses incurred by the plaintiff, since to that amount only is the defendant unjustly enriched.

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INTERSTATE COMMERCE - WHAT CONSTITUTES INTERSTATE COMMERCEROUTE OVER HIGH SEAS WITH TERMINI WITHIN ONE STATE.-The plaintiff, a California corporation, operated a line of steamships running from one port in California to another port in the same state, part of the voyage being on the high seas. The State Railroad Commission undertook to regulate the rates charged. Held, that the commission has this power. Wilmington Transportation Co. v. Railroad Commission of California, 137 Pac. 1153 (Cal.).

The Commerce Clause of the Constitution is held to prevent the regulation by a state of rates for land transportation having both termini in that state, but where the route passes through another state. Hanley v. Kansas City So. Ry. Co., 187 U. S. 617, 23 Sup. Ct. 214. See 16 HARV. L. REV. 597. Interpreting this as an interference with interstate commerce seems desirable on grounds of expediency, since otherwise it would be impossible to prevent interference and regulation by the intermediate state. The sovereign of the home port alone has jurisdiction of a ship on the high seas, there being no territorial sovereignty. See 27 HARV. L. REV. 268. There is in the principal case therefore no danger of adverse regulation. And it seems unsound to argue that this is interstate or foreign commerce, the power to regulate which has been delegated to Congress alone. Contra, Pacific Coast S. S. Co. v. Board of R. Commissioners, 18 Fed. 10. The language to the contrary in Lord v. Steamship Co. 102 Ú. S. 541, has been discredited by a later case and the actual holding has been explained as merely an exercise of the powers of Congress over maritime matters. See Lehigh Valley Ry. Co. v. Pennsylvania, 145 U. S. 192, 203, 12 Sup. Ct. 806, 808. But cf. Abby Dodge v. United States, 223 U. S. 166, 32 Sup. Ct. 310. However, a breach of a maritime contract of affreightment, or an injury from a discrimination in steamship rates, would be within admiralty jurisdiction. Carpenter v. The Emma Johnson, 1 Cliff. (C. Ct.) 633; Cowden v. Pacific Coast S. S. Co., 94 Cal. 470, 29 Pac. 873. No case has been found where questions concerning the reasonableness of steamship rates have been treated as within the jurisdiction, of admiralty courts. Even if it is a matter of maritime jurisdiction, since the termini of the voyage are within one state, it is clearly one in which uniformity of regulation is not necessary. And the states may legislate in such matters until Congress has acted. For a discussion of this proposition, see 27 HARV. L. REV. 578.

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JUDGMENTS ASSIGNMENT OF JUDGMENTS EFFECT OF ASSIGNMENT UPON RIGHT TO SET OFF MUTUAL JUDGMENTS. A. held a judgment against B. Subsequently B. obtained a judgment against A. on another claim, and B. assigned a half-interest in it to C., who paid value and had no notice of A.'s

judgment. A. brings a bill in equity, joining B. and C., to enforce a set-off of his judgment against the judgment obtained by B. Held, that C. took clear of the set-off. Davidson v. Lee, 162 S. W. 414 (Tex. Civ. App.).

A judgment, for the purposes of assignment, should be regarded like other choses in action. See 2 FREEMAN ON JUDGMENTS, 4 ed., § 422. Thus, as here, a partial assignment should give the assignee rights in equity. Line v. McCall, 126 Mich. 497, 85 N. W. 1089; Pittsburgh, C., C. & St. L. Ry. Co. v. Volkert, 58 Oh. St. 362, 50 N. E. 924. Contra, Loomis v. Robinson, 76 Mo. 488. But contrary to the principal case, it would seem that an assignee, even for value and without notice, should secure merely the rights of the assignor, and should be subject to any set-off in favor of the obligor. Brown v. Hendrickson, 39 N. J. L. 239; Peirce v. Bent, 69 Me. 381. See 2 BLACK ON JUDGMENTS, § 954. Some courts, however, permit the bona fide assignee to take free of the set-off, unless the assignor was insolvent at the time of the assignment. Ellis v. Kerr, 11 Tex. Civ. App. 349, 32 S. W. 444; Henderson v. McVay, 32 Ala. 471. Still others allow the set-off only where this attains an equitable result. Ames v. Bates, 119 Mass. 397; Hovey v. Morrill, 61 N. H. 9. However, it seems doubtful equity to prefer the assignee, for that imposes on the obligor an arduous duty of notice in favor of one who could readily have discovered the true state of the relation between assignor and obligor. The principal case, accordingly, seems difficult to support.

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PUBLIC-SERVICE COMPANIES REGULATION Of Public-SERVICE COMPANIES - TELEPHONE COMPANIES: COMMISSION'S ORDER COMPELLING PHYSICAL CONNECTIONS. — The plaintiff company, operating long-distance telephone lines in the state, and local lines in various counties, was ordered by the California public-service commission to make physical connections with two local companies operating in counties in which the plaintiff company had a local service, in order to give the local companies the benefit of the plaintiff's longdistance service. Held, that the order is void. Pacific Tel. & Tel. Co. v. Eshleman, 137 Pac. 1119 (Cal.).

The court thought the order an attempted exercise of the power of eminent domain, and declared it void because it did not provide compensation for the property taken. The premise seems erroneous. See this issue of the REVIEW, at p. 664. Nor does it seem entirely accurate to call the order one made under the police power. Cf. GUTHRIE, FOURTEENTH AMENDMENT, 74. It is an exercise of the ancient power of the state over businesses affected with a public interest. See WYMAN, PUBLIC SERVICE CORPORATIONS, § 19. Orders of commissions under this power require obedience without compensation, and are upheld if reasonable. Pittsburgh, C., C. & St. L. Ry. Co. v. Railroad Commission of Indiana, 171 Ind. 189, 202, 208, 86 N. E. 328, 333, 335. Courts have laid down no satisfactory test of reasonableness, but most of the cases support the distinction that the order for connections is reasonable if the public cannot be adequately served without the connections ordered. Wisconsin, etc. R. Co. v. Jacobson, 179 U. S. 287, 21 Sup. Ct. 115; Louisville & N. R. Co. v. Interstate R. Co., 107 Va. 225, 57 S. E. 654. In only a few cases have orders for connections between telephone companies been involved. Two situations may occur. If the companies do not cover the same territory, but reach the same town, an order for connections should be upheld, for only thus can the public be adequately served. Cf. State v. Cadwallader, 172 Ind. 619, 87 N. E. 644. The case is perhaps comparable to that where railroads running into the same city are forced to make connections and receive cars from each other. If, on the other hand, the situation is like that in the principal case, the public can be properly served with the existing facilities; hence it is unreasonable to compel a company to make expenditures or to share its advantageous position with a competitor. Cf. Oregon R. & N. Co. v. Fairchild, 224 U. S. 510, 32 Sup. Ct. 535;

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