death, however much she might have done so had it been attempted during her life, and that consequently no evidence of her desire to avoid publicity could be relevant to the plaintiff's case. Further and in general the statue was not to be used in any way which could give a "sane and reasonable person" any complaint on his own account, though he were her nearest relative.

Reduced to its formal parts the decision would therefore seem to be a denial only of equitable jurisdiction, and not of the plaintiff's legal right. It may be fairly said that the court admitted that a tort was proposed by the defendant, but found no sufficient reason for giving the extraordinary remedy of a court of equity, and left the plaintiff to his remedy at law. The case is quite new in its particular features, since the injunctions previously granted, e. g. against the reproduction of photographs, publication of letters, and the like, were all cases where the defendant proposed to give a publicity for his own profit, regardless of whether it was calculated to do honor to the plaintiff or not. Moreover, this was a case where equitable jurisdiction cannot be said to flow necessarily from the facts, as in the case of a proposed tort to land, but is rather analogous to a bill for the recovery of a chattel in specie, depending upon its particular circumstances for equitable jurisdiction. In the exercise of its discretion in cases of this sort, a court has such latitude that it is impossible, or at least presumptuous, to say it has come to a wrong decision unless that be obviously absurd and unreasonable. So in this case

the decision of the court must be held to be justified even by those who might disagree with the result, had it been their place to decide the case, for there is surely nothing preposterous or absurd in saying that here the plaintiff's loss could be sufficiently compensated by money damages.

But the reasoning of the court, with all respect to the learned judge who delivered the opinion, is not altogether satisfactory. Since the question before them was not to be governed by the decisions of the lower courts, and their position was not that of reviewing the decision of an independent tribunal, e. g. the verdict of a jury, there was no occasion to hold that no and reasonable person" could uphold the decision of those lower courts, and it was a statement which their very unanimity in combination with the vigorous dissent in the Court of Appeals itself ought to have effectually disproved.

sane

Further, the line of reasoning by which the plaintiff's evidence of the deceased's dislike of publicity was excluded as irrelevant to his own proof of damages can be assented to with difficulty. It is surely a mistaken view of the ordinary facts of human feeling to say that a naturally retiring person can tolerate the anticipation of a publicity after his death from which he would shrink painfully during his life. Surely a person to whom privacy is of any value whatever must contemplate a future publicity with almost as much chagrin as a present one. Could the learned judge, for example, bear for an instant the thought of a public representation or description of his courtship after his death? Now if this is so, the knowledge of how great annoyance would have been caused to the deceased, had she had knowledge of the defendant's proposition, was a very material element in the plaintiff's damages, for surely it is a source of pain to every normal person to know that that is contemplated which would have caused suffering to any one dear to him, who is now dead. Indeed, it is unnecessary to give proofs of that feeling, they are so obvious.

Finally, the case seems a good instance of the ill effects of the loose sys

tem of pleading used in New York. It is doubtful whether the decision would have been received by the press in general, as it has been, as a denial of the right to privacy, were the jurisdictions of law and equity distinguished, and certainly it would have been more easily limited to its proper scope. As has been intimated, it cannot fairly be complained of, however much some of the reasoning of the opinion may seem to need further exegesis to gain acceptance.

RECENT CASES.

AGENCY LIABILITY OF SERVANT TO THIRD PERSONS. The agents of a corporation charged with the duty of erecting on its grounds structures for the accommodation of the public negligently permitted a defective structure to be erected. Held, that they were guilty merely of nonfeasance, and therefore were not liable to persons injured by reason of such defects. Van Antwerp v. Linton et al., 35 N. Y. Supp. 318.

There is no doubt that when an agent is guilty merely of nonfeasance he is responsible therefor to his principal alone. Lane v. Cotton, 12 Mod. 472; Felton v. Swan, 62 Miss. 415. It is when we attempt to draw the line between nonfeasance and misfeasance that the question becomes a puzzling one. The court here follows previous decisions in New York, as well as the weight of authority in other jurisdictions, in limiting the definition of misfeasance to the violation of a duty imposed upon the agent independently of his employment. Burns v. Pethcal, 75 Hun, 437; Delaney v. Rochereau, 44 Am. Rep. 456. By the terms of this definition, nonfeasance only can be attributed to the defendants; and there would seem to be no good distinction between the negligent performance and the negligent omission of performance of a duty imposed by an employer, when in both cases injury results to third persons. The authorities are not wanting, however, which declare the first to be misfeasance, and the second nonfeasance. Osborne v. Morgan, 130 Mass. 102.

GUARANTOR

STATUTE OF

BILLS AND NOTES ANOMALOUS INDORSER FRAUDS. - Defendant indorsed in blank a note after delivery and while in the hands of payee. Parol evidence showed that he intended to assume the liability of guarantor. Held, such act authorizes the payee to write over the signature the contract of guaranty in full, and this constitutes a sufficient memorandum in writing to satisfy the Statute of Frauds. Peterson v. Russell, 64 N. W. Rep. 555 (Minn.).

This is the first time the point in question has come up for decision in Minnesota. The authorities are divided. In accord, see Kealing v. Vansickle, 74 Ind. 529; Beckwith v. Angell, 6 Conn. 315; Stowell v. Raymond, 83 Ill. 120. Chaddock v. Vanness, 35 N. J. Law, 517, cited by the court as authority, is not in point. The New Jersey decisions are contra to the principal case. See Hayden v. Weldon, 42 N. J. Law, 128. For further authorities holding that a blank indorsement of a note in the hands of the payee does not satisfy the Statute of Frauds, and that payee has no authority to fill in the contract of guaranty, see Temple v. Baker, 125 Pa. St. 634; Culbertson v. Smith, 52 Md. 628. For the three doctrines applied where the anomalous indorsement is made before delivery to payee, see 7 HARVARD LAW REVIEW, 373.

CARRIERS SLEEPING CARS RIGHT TO TRANSFER USE OF SECTION FOR PART OF JOURNEY. Held, that a purchaser of a sleeping car section, who leaves the train before reaching his destination, may transfer the use of the section to another passenger for the rest of the journey. Curlander v. Pullman Palace Car Co. (Baltimore Superior Court). See NOTES.

CARRIERS WRONG TICKET — EJECTION FROM TRAIN. - Held, that where a passenger requests and pays for a ticket to A. and by a mistake of the ticket agent is given a ticket to B. only, with which he enters the train without noticing the error, he has a right to ride to A. on making proper explanations to the conductor; and can recover from the company for ejection by the conductor at B. Evansville & T. H. R. R. Co. v. Cates, 41 N. E. Rep. 712 (Ind.). See NOTES.

PRIORITY. Held, a

CHOSE IN ACTION ASSIGNMENT - NOTICE TO DEBTOR prior assignee of a chose in action will be protected, though he has given no notice of the assignment either to the subsequent assignee or the obligor. Fortunato v. Patten, 41 N. E. Rep. 572 (N. Y.).

This doctrine is well settled in New York. Fairbanks v. Sargent, 104 N. Y. 108, and is in accord with the weight of American authority. Putnam v. Story, 132 Mass. 205; Kennedy v. Parke, 17 N. J. Eq. 415; Meier v. Hess, 32 Pac. Rep. 755 (Ore.). The English doctrine is that the first assignee giving notice is protected, following the rule in Dearle v. Hall, 3 Russ. I. The Federal courts and a few of the State courts have adopted this rule. Methven v. Staten Island Light Co., 66 Fed. Rep. 113; Van Buskirk v. Hartford Fire Ins. Co., 14 Conn. 140; Murdock v. Finney, 21 Mo. 139.

CONFLICT OF LAWS FOREIGN CONTRACTS PUBLIC POLICY. Goods were shipped on an English vessel from Germany to Philadelphia; the contract, made in Germany, exempted the ship owner from liability for the negligence of master or crew, and provided that disputes should be settled according to the law of the ship's flag. The plaintiff's goods were damaged at Philadelphia through the negligence of the crew. Held, although such contracts are valid in Germany and in England, they are considered against public policy here, and will not be enforced. The Glenmavis, 69

Fed. Rep. 472.

If this contract had been made in America, most of our courts would have held it unenforceable. 2 Parsons on Contracts, 8th ed., 259. Nor will the courts of one nation respect the laws of another when such a course is against public policy. Westlake, Private Internat. Law, § 215. It may be doubted, however, whether a contract like this, made abroad, offends against American interests; public policy may demand that we preserve a high standard of care in our community by forbidding our people to sell their vigilance, but if such an act is done in a German community it is a question of German, not of American policy, and there would seem to be no reason for refusing to give effect to the foreign law. Forepaugh v. Delaware, &c. R. R. Co., 128 Pa. St. 217. The doctrine of the principal case appears, however, to have been adopted by the Federal courts. Lewisohn v. National Steamship Co., 56 Fed. Rep. 602. See Hutchinson on Carriers, §§ 140-144 a.

CONSTITUTIONAL LAW-CRIMINAL PRocedure - WAIVER OF TWELVE JURORS. -The defendant by his consent was tried for a felony by a jury of eleven men, and upon conviction he moved for a reversal of judgment. Held, that in a case of felony the defendant could not waive his constitutional right to a trial by a full jury of twelve men. Territory v. Ortiz, 42 Pac. Rep. 87 (N. Mex.). See NOTES.

CONSTITUTIONAL LAW-SELF-INCRIMINATING TESTIMONY STATUTORY PROTECTION AGAINST PROSECUTION. — Held, (1) that the Fifth Amendment to the United States Constitution does not protect a witness from giving testimony which merely tends to reflect upon his character; (2) that an act of Congress, providing that no person shall be excused from testifying in proceedings under the Interstate Commerce Act on the ground that it may tend to criminate him, but that no person shall be prosecuted or subjected to any penalty on account of anything concerning which he may testify, is constitutional, since it affords a protection as broad as the constitutional provision. Brown v. Walker, 70 Fed. Rep. 46.

The first point is well settled. U. S. v. Smith, 4 Day's R. 121; I Greenleaf on Evidence, § 454, and cases cited. The second point overrules the decision in U. S. v. James, 60 Fed. Rep. 257, thus bringing the Federal rule into line with the majority of State decisions upon the same point. People v. Kelly, 24 N. Y. 74; People v. Sharp, 107 N. Y. 427; Wilkins v. Malone, 14 Ind. 153; State v. Quarles, 13 Ark. 307; Higdon v. Heard, 14 Ga. 255. See, contra, Cullen v. Com., 24 Grat. 624; Counselman v. Hitchcock, 142 U. S. 597. Compare Emery's Case, 107 Mass. 172.

CONSTITUTIONAL LAW TRIAL BY JURY. - The Constitution of Kansas provides that "the right of trial by jury shall be inviolate." The petitioner was summarily convicted under a city ordinance, forbidding that which the State laws made a penal offence generally, and applies for his discharge on habeas corpus under the above provision. Held, that since an appeal lay from the city court to a court in which a trial by jury was secured, the summary proceeding was not in conflict with the Constitution, if the appeal was "clogged by no unreasonable restrictions"; that since in this case the appeal was conditioned "for the payment of such fine and costs as shall be imposed on him, if the case shall be determined against the appellant," it was unreasonably restricted. Re Jahn, 41 Pac. Rep. 956 (Kan.).

In regard to the first point, there is a conflict of authority. A previous Kansas case, Emporia v. Volmer, 12 Kan. 622, and cases in several other States, support this decision. The authorities are collected in 1 Dill. Mun. Corp (4th ed.) § 439, and in Cooley, Const. Limit. (5th ed.) 506, 507. See especially Beers v. Beers, 4 Conn. 535, and Jones v. Robbins, 8 Gray, 329. In Callan v. Wilson, 127 U. S. 540, the opposite

conclusion is reached in a case concerning the common law offence of conspiracy, and for the present purpose there seems no distinction between a common law and a statutory offence. The doctrine of the Supreme Court is consonant with the established regard for the rights of the citizen, but the decision of the principal case has practical grounds of convenience and despatch. On the second point, the decision seems correct. Cooley, Const. Limit. (5th ed.) 507, and cases cited. See NOTES.

CONTRACTS-Defence - FRAUD. Plaintiff sued on a written instrument, purporting to be a contract between plaintiff and defendant. Defendant pleaded that an oral contract had been entered into between plaintiff and defendant, under which plaintiff agreed to purchase a safe; that plaintiff fraudulently represented to defendant that the document sued on embodied the terms of the oral contract, whereas in fact the alleged promise of defendant in the written instrument substantially differed from defendant's promise in the oral agreement; that defendant, relying on plaintiff's representation, signed the instrument sued on. The lower court struck out this plea on the ground that it varied a written contract by oral evidence. Held, that this was error. Wood v. Cincinnati Safe Co., 22 S. E. Rep. 909 (Ga.).

Clearly a correct decision; the object of the plea was not to vary the written agreement, but to show that it conferred no enforceable rights on plaintiff. This case suggests the inquiry whether the facts disclosed constitute an affirmative personal defence or a negative defence to be pleaded under non-assumpsit. Under certain circumstances the answer to this inquiry determines the question of a defendant's liability. In Foster v. Mackinnon, L. R. 4 C. P. 704, the defendant, who was sued as an indorser of a promissory note, had written his name on the back of the instrument, relying on a fraudulent representation that he was signing a guaranty; an instruction that defendant, if not guilty of negligence, was not liable to plaintiff, an innocent purchaser for value, was held correct. It would therefore seem that in the principal case the defence was properly non-assumpsit. Pollock on Contracts, 5th ed., 441-466.

CORPORATIONS LIMITATION OF THe Indebtedness of a CitTY. A State constitution provided that no city "shall become indebted in any manner over a certain amount. Held, this does not prohibit a city already indebted to said amount from borrowing money to finish waterworks, if the loan is to be paid out of a special fund created by the receipts derived from such waterworks, as this imposed no further liability on the general funds of the city. Winston v. City of Spokane, 41 Pac. Rep. 888 (Wash.).

The

Two judges out of the five who sat on the case dissent, and the question is undoubtedly a close one. Those who loaned the money must go at the special fund, and cannot claim payment out of the general city funds even in quasi-contract, it seems. city would be liable for failure to create the special fund, and damages could be claimed from the city's general funds. But the majority of the court thought such liability too

remote.

- Bill by

CORPORATIONS-POWER TO TAKE FORBIDDEN PROPERTY BY DEVISE. · widow and heirs to construe a will. The will directed a trustee to sell certain warehouse property and pay the proceeds to the defendant corporation. The proceeds of the sale were in the trustee's hands. The corporation's charter forbade it to take and hold property over a certain amount, and plaintiffs contended that this limit was already reached. Held, this question can be raised only by the State. Hanson v. Little Sisters of the Poor, 32 Atl. Rep. 1052 (Md.). See NoTES.

CRIMINAL JURISDICTION BRINGING STOLEN GOODS INTO STATE. - Held, that the common law rule, that, where one steals goods in one country and brings them into another, the latter has no jurisdiction of the offence, applies to the different States of the Union. Strouther v. Commonwealth, 22 S. E. Rep. 852 (Va.).

7.

The case is right. Several States, it is true, allow conviction in similar cases, on the ground that the States are in the same relative position as the English counties. State v. Ellis, 3 Conn. 185; State v. Hamilton, 11 Ohio, 435; Comm. v. Holder, 9 Gray, But the anomaly, which made each new act of removal across a county line accompanied with the felonious intent, a complete new crime, and yet allowed one conviction to bar an indictment anywhere else, was not extended to thefts in Scotland, or to the Channel Islands. Reg. v. Anderson, 2 East P. C. 772; Rex v. Prowes, 1 Mood. C. C. 349. On the actual facts the doctrine cannot stand, for the thief certainly gets possession by the original act; and it is submitted that though this objection may be waived in a set of counties where only one Legislature exists, and only one conviction can be had, it is an insuperable obstacle to any application of the rule to this country. The criminal laws of the States differ in important respects, are not derived from the

same source, and are entirely free from control by the central government. In accord with the principal case are State v. Le Blanch, 2 Vroom, 82; State v. Beall, 15 Ind. 378; and see the dissenting opinion of Thomas, J., in Comm. v. Holder, supra.

CRIMINAL LAW - MURDER AND MANSLaughter. Defendant was indicted for the murder of a person who attempted to arrest him without a warrant. The court charged that such unwarranted arrest was in general sufficient provocation to reduce the crime to manslaughter, " unless such killing was done in such a way as to show brutality, barbarity, and a wicked and malignant purpose." On conviction this writ of error was brought. Held, that the question of manslaughter or murder does not depend on the way in which the killing was done, and that the charge was erroneous. Brown v. United States, 16 Sup. Ct. Rep. 29.

This is a sound decision. The question of fact for the jury is whether a certain state of mind existed in the defendant at the time of killing. This they must do from evidential facts, but it is not for the judge to charge that any particular facts are conclusive. See Terre Haute, &c. Railroad Co. v. Voelker, 129 Ill. 540.

DAMAGES - EMinent Domain. Where a city opens a street across the right of way of a railroad, the verdict of a jury giving nominal damages only is sustained. Chicago, &c. Railroad Co. v. Cicero, 41 N. E. Rep. 640 (Ill.).

There was evidence in the case of a depreciation in value of that part of the right of way occupied by tracks, and the market value of the part not so occupied was also shown. But the court says that the usual rule of compensation to individuals does not apply to this case, and refuses to allow any recovery. The cases cited would seem to show that this is the established doctrine in Illinois. It does not seem satisfactory, however, the better rule being that laid down in B. & A. Railroad v. Cambridge, 159 Mass. 283: "The ruling that the petitioner was entitled to recover for the fair value of its land taken, subject to its use for railroad purposes, was correct."

EQUITY INJUNCTION - RELIGIOUS CORPORATIONS. Where a church has been incorporated under a State statute as a member of a particular denomination, and acquired property as such, it cannot, without the unanimous consent of its members, transfer its property to another branch of the denomination which holds different doctrines. Park et al. v. Champlin et al., 64 N. W. Rep. 674 (Ia.).

Where property to which no specific trust is attached has been acquired by a church which professes a particular faith, there is some diversity of opinion as to the rights of a majority of its members in case they wish to change their allegiance. The New York courts, interpreting their statute, do not recognize any denominational character in religious corporations, and the rights of a majority therein are the same as in any lay corporation. 2 R. S. of 1813, § 3; Robertson v. Bullions, 11 N. Y. 243; Watkins v. Wilcox, 66 N. Y. 654. Michigan has followed New York in this respect. Wilson v. Livingstone, 99 Mich. 594. As a general rule, however, in the case of churches which acknowledge themselves members of a larger communion which exercises a more or less efficient supervision over their belief, the minority which is in accord with the tenets of the governing body will be given the property as against a seceding majority. See Smith v. Pedigo, 33 N. E. Rep. 777 (Ind.); Church v. Whitmore, 83 Ia. 147; Roshi's Appeal, 69 Pa. St. 462; Baker v. Ducker, 79 Cal. 365.

ESTOPPEL MISREPRESENTATION OF BOUNDARY BY VENDOR. - Plaintiff bought a lot of land adjoining defendant's lot. In erecting a building thereon he built up to a line, pointed out by defendant as the boundary, but which in fact was several feet within defendant's lot. This action is brought in equity to enjoin defendant's interference with his possession. Held, that though defendant was in "honest error," he is estopped to deny the boundary indicated by himself. Ross et al. v. Penn et al., 64 N. W. Rep. 283 (Ia.).

This case indicates the present tendency of the doctrine of estoppel. According to the overwhelming weight of earlier authority, no representation estopped its maker unless it was made with knowledge of its falsity, or at least when he was "bound to know the true state of things." Bigelow on Estoppel, 5th ed., chap. xviii. sec. 3. In this light, on much the same facts as found in the present case, an opposite conclusion was reached in Liverpool Wharf v. Prescott, 7 Allen, 494. Authorities are being found more plentifully every year in support of the position that wilful falsehood or reckless ignorance is not necessary to create an estoppel; that it is enough if a representation has been made in pure error, on which the other party has been induced to act. Bispham's Principles of Equity, 5th ed., §§ 283, 288, and cases cited.

EVIDENCE-CHARACTER - FALSE IMPRISONMENT. — Held, evidence to establish the previous good character of plaintiff in a suit for false imprisonment is inadmis