His property is held by another under a claim of right; and he is subjected to the same privation as if the entry were made with full knowledge of its being unjustifiable."1

The Maine court, however, announces an entirely different doctrine as to the effect of a long occupancy of land where the fence has not stood on the true boundary. It says: In case of occupancy by mistake beyond a line capable of being ascertained, this intention to claim title to the extent of the occupancy must appear to be absolute, and not conditional, otherwise the possession will not be deemed adverse to the true owner. It must be an intention to claim title to all land within a certain boundary on the face of the earth, whether it shall be eventually found to be the correct one or not." Per Whitehouse, J.2

The position thus taken and maintained by the learned court of Maine appears to have commended itself elsewhere only in a few jurisdictions, notably in Iowa and in Kansas. We entertain a belief that the time shall come when it will be abandoned, as not consistent with the doctrine of adverse possession as heretofore generally understood and acted upon.

18 Conn. 445.

Frank W. Hackett.

2 85 Maine, 265.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

This year

in the School on procedure under the New York Code. a course of lectures on the subject was announced in the Catalogue, to occupy not less than thirty hours. The course is now being given under the charge of Mr. Francis C. Huntington, LL. B. '91, of New York City.

THE LAW SCHOOL LIBRARY. During the last month gratifying progress was made in securing Reports for the library. The Reports of the following States were purchased: Colorado, Dakota (Territory), North. Dakota, South Dakota, Idaho, Kentucky, Mississippi, Missouri, Montana, New Hampshire, Rhode Island, Tennessee, Utah, Vermont, and Washington.

This is in pursuance of the plan, decided upon three years ago, to have two complete collections of Reports in the stack-room; and the rapid increase in the number of students in the School has shown the duplication to be urgently needed. It is hoped that, by the end of the year, nearly all the Reports required will have been secured.

BY WHOM SHALL A STATE CONSTITUTION BE ADOPTED? The recent constitutional convention in South Carolina pronounced its constitution to be in force, as the fundamental law of the land, without submitting it to a popular vote. The action is rare enough to call for comment. In none of the Northern or Western States, since the adoption of the earliest constitutions, has a constitution been promulgated without a ratification by the people. In all but two of the Southern States, the practice of withholding a constitution from the people has been abandoned, at any rate since 1865. The two exceptions are South Carolina and Mississippi. Even in those States, some constitutions have been submitted to a popular vote, — three out of six in the case of Mississippi, and one out of five in the case of South Carolina.

It would seem perfectly clear that if a legislature directed a convention to submit its work to the people for ratification, the convention would be bound to obedience. The consent of the legislature is necessary in order that a convention may be lawfully held, and this consent may be given conditionally. The terms of the legislative "call," therefore, are binding on the convention. (Wells v. Bain, 75 Pa. St. 39.) This view is bitterly attacked obiter, in Sproule v. Fredericks, 69 Miss. 898; but the position of the court appears to be untenable. When a legislature, on the other hand, expressly dispenses with submission to a popular vote, it would seem equally clear that the convention had the right to declare its constitution in force. In the third and most difficult case, when the legislature is silent as to the submission of the convention's work to the people, the duty and the power of the convention seem to be at variance. No one should question that, in subservience to the best interests of the people, the convention ought to submit its constitution to a popular vote; otherwise, as is pointed out in Jameson on Constitutional Conventions (4th ed., §§ 410, 411), the people are at the mercy of a despotic single chamber. Nevertheless, the late South Carolina convention and the Mississippi convention of 1890 (6 HARVARD LAW Review, 56, 57) afford but two examples of a course of action frequently pursued in constitutional conventions prior to 1865. Therefore, where the legislative call is silent as to the necessity of submitting a constitution to confirmation or rejection by a popular vote, it is now too late, in view of historical precedent, to deny the power of a convention to put its constitution in force without submitting it to the people.

CONTRADICTION OF DYING DECLARATIONS. A note in the Recent Cases last month (9 HARVARD LAW REVIEW, 432) expressed a doubt as to the soundness of admitting previous statements of the deceased in contradiction of his dying declarations. The New York Law Journal, in its issues of January 31 and February 3, criticises this note as "unconvincing and inconclusive," and argues strongly for the admission of the statements. A word of explanation may not be out of place here. These notes on recent cases are not intended to be either convincing or conclusive; their purpose is to call attention to interesting decisions, and to point out possible objections, if any appear. They are suggestive rather than dogmatic. In the second place, the position taken in the note is worthy of consideration. The argument of the court and of the Journal is directed, in fact, against the weight of dying declarations as evidence, and in this point of view is forcible. But the logical result from this would seem to be to exclude the evidence, or to call the attention of the jury to its weakness. It may be questioned whether, because an unsatisfactory piece of evidence has been admitted, other unsatisfactory evidence should therefore be allowed to impeach it. The objection is not more technical than other matters of evidence, but is based on the general rule excluding hearsay except in special cases. argument in favor of the evidence based on the loss of cross-examination proves too much, for it would apply to all cases of hearsay. That based on the peculiar nature of dying declarations is stronger, and perhaps should prevail. Evidence against the credibility of the declarant is in general admissible, and as a question of practice the decision may be a wise one. Nevertheless, the considerations here set down seem to make it a doubtful case. People v. Lawrence, 21 Cal. 658, mentioned by the

The

court, is directly in point, and agrees with the principal case, State v. Lodge, 33 Atl. Rep. 312 (Del.).

MARRIED WOMEN DAMAGES FOR IMPAIRED CAPACITY TO LABOR. Though the enfranchisement of woman from her common law bondage has been wellnigh completed by modern statutes, yet the process has gone on so intermittently that the courts are often called upon to fill up the intervals, and, by judicious interpretation of statutes, to systematize and complete the whole work. A recent decision of this sort by the Massachusetts court has not only attracted wide attention among the profession, but has been given public prominence in the columns of the daily press. Harmon v. Old Colony R. R. Co., 42 N. E. Rep. 505, is an authority for the principle that, in an action of tort brought by a married woman for personal injuries, her impaired capacity to labor may be considered in estimating damages. This decision seems a necessary consequence of the statutes which give a married woman the right to her earnings, and allow her to sue for them in her own name; and the result reached is by no means unprecedented, even in Massachusetts. Fordan v. R. R. Co., 138 Mass. 425; Smith v. R. R. Co., 23 S. W. Rep. 784 (Mo.); Brooks v. Schwerin, 54 N. Y. 343; Fleming v. Town of Shenandoah, 67 Iowa, 505.

All is not perfectly plain sailing, however; for it must be remembered that the husband, notwithstanding modern statutes, still has his action for the loss of his wife's services; and in order that there may not be a double recovery, their respective rights must be carefully distinguished. If the wife has recovered damages in one action for the loss to her attendant upon her impaired capacity to labor, the husband must not be allowed to recover in a later action for a loss which was not his, and for which satisfaction has already been given. However difficult it may be

to divide the loss accurately, there can be little doubt on principle as to where the line should be drawn. So far as the injury to the wife disables her from performing household duties, the loss is the husband's and he alone can recover; so far as she is disabled from earning money in an outside employment, the damage is hers. This distinction has been clearly pointed out in many cases. See Brooks v. Schwerin, supra.

It would seem to follow that if the wife is engaged in no outside occupation, but confines herself to household duties, she should recover no damages of this nature. And it is so held. "The test of her right to damages for loss of time is whether she was in the employment of persons other than her husband, on her own account." Fleming v. Town of Shenandoah, supra. See also R. R. Co. v. McGinnis, 46 Kan. 199; Filer v. R. R. Co., 49 N. Y. 47; Thomas v. Town of Brooklyn, 58 Iowa, 433. Yet even in cases where she is not at the time engaged in a separate employment it may be open to question whether the impairment of her earning power, in the abstract, should not be considered by the jury. Conversely, it has been held that, if the husband would recover for the loss of his wife's services, he must show that such a relation existed between them that he was entitled to those services. R. R. Co. v. Dickey, 41 Pac. Rep. 1070 (Kan.). The border line between household duties and outside labor is reached when the wife is employed in her husband's business establishment. In such cases, when she receives no wages, the services are assimilated to those rendered in the house

hold and the husband is allowed to recover damages for their loss. Street Ry. Co. v. Twiname, 121 Ind. 375. When she receives regular wages from her husband, even though she could not enforce payment of them, they are hers when they are paid, the presumption is that they would have continued, and consequently, as hers is the loss, it would seem that she should be allowed to recover damages therefor. But the contrary has been held. Blaechinska v. Howard Mission, &c., 130 N. Y. 497.

After all, the general rule of law seems clear, and the only questions are practical ones for the jury. What damage has the wife suffered from the impairment of her capacity to carry on a separate employment? What damage has the husband suffered from the loss of her services in the household? It may be difficult at times to answer these questions satisfactorily. It is no easy matter to determine in every case just what constitutes a separate employment. (See the dissenting opinion of Lott, Ch. C., in Brooks v. Schwerin, supra.) And the position of the judge whose duty it is to instruct the jury in such a manner that they will carefully discriminate between the two elements of damage may well be no sinecure. But these are the every-day inconveniences necessarily incident to the law as a working system.

CAN A MURDERER ACQUIRE A TITLE BY HIS CRIME?-In Riggs v. Palmer, 115 N. Y. 506 (1889), the New York Court of Appeals passed upon the validity of a devise to a defendant who had murdered his testator to prevent a revocation of the will. The action was brought to have the devise cancelled and annulled. The court decreed "that the devise and bequest in the will to Elmer [Palmer, the defendant] be declared ineffective to pass the title to him; that by reason of the crime of murder committed upon the grandfather he is deprived of any interest in the estate left by him." In 4 HARVARD LAW REVIEW, 394, and 8 HARVARD LAW REVIEW, 170, it was suggested that a more satisfactory way of reachthe desirable result of this decision was to allow the devisee to take the legal title under the will, but to compel him to hold the property as constructive trustee for the heirs at law of the testator; thus avoiding the violence done to the plain letter of the Statute of Wills by reading into it a revocation clause.

In Ellerson v. Westcott, 42 N. E. Rep. 540 (N. Y.), an heir at law of the testator sued directly for a partition of lands devised to the defendant, who was alleged to have murdered her devisor. The court refused to entertain this form of action, and said that the plaintiff's only remedy was in equity to deprive the devisee of the benefit of her crime. While not expressly overruling Riggs v. Palmer, the court sharply distinguishes it from the present case in point of procedure. The following sentences are quoted from the opinion at page 542: "The devise took effect on the death of the testator, and transferred the legal title and right given her by the will. The relief which may be obtained against her is equitable and injunctive. The court in a proper action will, by forbidding the enforcement of a legal right, prevent her from enjoying the fruits of her iniquity. It will not and cannot set aside the will. That is valid, but it will act upon facts arising subsequent to its execution, and deprive her of the use of the property." From this, the New York court seems to have abandoned a position difficult to defend