being declared void, was not subrogated to the railroad's rights under its contract. Aetna Life Ins. Co. v. Middleport, 124 U. S. 534. The court distinguishes the principal case on the ground that the company delivered the bonds to the contractor under an implied agreement that if the bonds proved void, it would issue to him the stock of whose sale the bonds were proceeds, and that this promise attached itself to the bonds in such a manner that it passed with them to all subsequent vendees. This construction of the contract seems untenable, for since the transaction between the county and the company was void, the stock remained unissued, and the contractor was entitled to it by his express contract. If the complainant has any remedy it would seem to be against his vendor on an implied warranty of the validity of the bonds. But in a similar case, the court refused to imply a warranty. Otis v. Čullum, 92 U. S 447

CRIMINAL LAW CONSPIRACY ACQUITTAL OF ALL BUT ONE DEFENDANT. — Three defendants were jointly arraigned on a charge of conspiracy. One of them pleaded guilty and the two others were acquitted on pleas of not guilty. Held, that the judgment passed against the one who pleaded guilty must be vacated. The King v. Plummer, [1902] 2 K. B. 339.

This rule was tacitly assumed by the early English decisions and has been expressly recognized by the later ones. Rex v. Rinnersley, 1 Str. 193; Rex v. Cooke, 5 B. & C. 538: Reg. v. Manning, 12 Q. B. D. 241; Reg. v. Thompson, 16 Q. B. 832. Indiana and North Carolina have adopted it as to indictments for adultery and fornication. Turpin v. State, 4 Blackf. (Ind.) 72; State v. Mainor, 6 Ired. (N. C.) 340; State v. Rinehart, 106 N. C. 787. Texas and Tennessee repudiate it. Alonzo v. State, 15 Tex. App. 378; State v. Caldwell, 8 Baxt. (Tenn.) 576. The view of the last two jurisdictions seems more in accord with reason. To support the doctrine, the sole reason given is that, since these offenses are necessarily joint ones, two verdicts of guilty and not guilty would be mutually repugnant. This reasoning does not rightly apply to cases of adultery, for there one of the defendants might be a party to the joint act without having the criminal intent necessary to constitute the crime; for example, when he acted under a bona fide mistake of fact. And even in cases of conspiracy the repugnancy on the record is more apparent than real-since the verdict of not guilty for the first defendant amounts to little more than not proved - and is far outweighed by the repugnancy between the second defendant's acquittal, and facts clearly proving his guilt.

CRIMINAL LAW-DOUBLE JEOPARDY - FORMER TRIAL FOR Lesser Crime. — Held, that a conviction for assault and battery is a bar to a subsequent prosecution for assault with intent to kill. People v. McDaniels, 69 Pac. Rep. 1006 (Cal.).

The better view and the weight of authority are to the effect that conviction for a lesser crime is a bar to prosecution for the greater crime of which the lesser is a constituent part. Reg. v. Elrington, 9 Cox C. C. 86; Moore v. State, 71 Ala. 307. See contra, State v. Hattabough, 66 Ind. 223. It is clear that a conviction or acquittal of the larger charge should bar a prosecution for the smaller, since generally by statute a defendant can be convicted on any indictment of a lesser crime necessarily included within the indictment. The objection of double jeopardy is equally strong to bar a subsequent prosecution for the higher offense after trial for the lower. As authority against the above view, some cases have been cited to the effect that conviction for assault is no bar to prosecution for homicide after the victim's death. Reg. v. Morris, 10 Cox C. C. 480; State v. Littlefield, 70 Me. 452; Johnson v. State, 19 Tex. App. 453; Stewart's Case, 5 Irv. 310 (Scotch). These cases, however, have generally recognized the rule, as here stated, while declaring it inapplicable when the greater crime does not exist at the time of the first prosecution.

DAMAGES AVOIDABLE CONSEQUENCES

BREACH OF CONTRACT OF SALE.

The vendor in a contract for the sale of coal had agreed to give sixty days credit. At the time fixed for delivery, he broke his contract by refusing credit, but subsequently offered the coal to the vendee at a cash price less than the market price. Held, that the subsequent offer cannot be shown in mitigation of damages. Coxe v. Anoka, etc., Co., 91 N. W. Rep. 265 (Minn.).

The general rule is that for the breach of a contract of sale the vendee can recover only the additional cost of securing the goods elsewhere, and compensation for any incidental injury suffered. Gainsford v. Carroll, 2 B. & C. 624; Benton v. Fay, 64 Ill. 417. It is held that an employer who has broken a contract for services is allowed to show in reduction of damages that he subsequently offered the servant re-employment, unless the offer was made on the condition that on its acceptance the breach should be waived. Bigelow v. Am. Forcite Powder Mfg. Co., 39 Hun (N. Y.) 599; Whitmarsh v. Littlefield, 46 Hun (N. Y.) 418. Losses which follow a breach of a contract of sale,

but which would have been averted had the vendee availed himself of reasonable op portunities to purchase elsewhere, would not seem to be consequences of the breach, but of the vendee's carelessness. See Beymer v. McBride, 37 la. 114. The fact that it is the defaulting vendor who offers the opportunity should not vary the case; the vendee may, if he chooses, reject the offer, but if he does so, he cannot charge the vendor with losses which he would not have incurred had he accepted it. Parsons v. Sutton, 66 N. Y. 92; Lawrence v. Porter, 63 Fed. Rep. 62.

DECEIT FALSE STATEMENT OF CONSIDERATION IN A DEED. The plaintiff declared that she had bought certain notes secured by property deeded to a trust company; that a consideration was stated in the conveyance which grossly misrepresented the value of the property, and this was done by the defendant for the purpose of cheating and defrauding the plaintiff and others; that she had relied on the statement in buying the notes, and that the notes are worthless. The defendant demurred. Held, that the statement of value in the deed having been made, as alleged, in pursuance of a scheme to defraud, the declaration states a cause of action. Leonard v. Springer, 197 Ill. 532, reversing the same case below, in 98 Ill. App. 530. For a discussion of the decision in the lower court, see 15 HARV. L. REV. 576.

EQUITY-SPECIFIC PERFORMANCE - MISTAKE AS A DEfense.

The defendant at an auction sale purchased the plaintiff's land, mistaking it, because of deafness, for another parcel of land. The contract price was not exorbitant for the parcel actually bought. Held, that equity will compel specific performance of the defendant's contract. Van Praagh v. Everidge, [1902] 2 Ch. 266.

At law, it is no defense to an action on a contract that the defendant misunderstood the terms of the plaintiff's offer. The parties are bound by a reasonable construction of their expressed intention. See Preston v. Luck, 27 Ch. D. 497; Rowland v. N. Y., N. H., & H. R. R., 61 Conn. 103, contra. Courts of equity, however, although admitting the existence of a contract, refuse in some instances to apply their extraordinary remedy of specific performance against a defendant who has contracted solely through a mistake, even though the mistake was not induced by the plaintiff. Mansfield v. Sherman, 81 Me. 365. The principle underlying the cases seems to be that equity will not enforce a contract when it would be inequitable to do so. If, however, the mistake is unreasonable or occasioned by the defendant's negligence, it is not allowed as a defense unless specific performance would occasion “hardship amounting to injustice." Tamplin v. James, 15 Ch. D. 215. In the principal case the defendant seems clearly to have been negligent. Moreover, the price paid was not exorbitant, and no hardship on that score would result. It is probably true that it is something of a hardship to compel him to take land that he had not intended to buy; but, on the whole, the case seems to be a proper one for specific performance.

ESTOPPEL-FAILURE TO ASSERT A RIGHT. The plaintiff, having discovered that her signature had been forged to a release of dower in a deed of land made by her husband, neglected to notify the grantee. The defendant, who had no notice of the fraud, purchased the land from the grantee without the plaintiff's knowledge. Held, that the plaintiff is not estopped to claim her dower. Hunt v. Reilly, 52 Atl. Rep. 681 (R. I.).

The court regards it as decisive that the plaintiff had no knowledge of the defendant's intended purchase. Yet, where there is an actual misstatement, if it is one addressed to the public, knowledge that any particular person is about to act upon it is immaterial. Richardson v. Silvester, L. R. 9 Q. B. 34. By analogy it would seem that the plaintiff, having left uncontradicted before the public a misrepresentation likely to be acted upon at any time, should be estopped to set up the truth against one who has been misled. The court also relied largely upon a case in which a failure to give notice of a recorded mortgage was held not to raise an estoppel. Viele v. Judson, 82 N. Y. 32. It is true that when, as in that case, one's right is a matter of record, there is no duty to make it known, and hence no fraud in silence. Kingman v. Graham, 51 Wis. 232. But in the principal case it was the fraudulent title, and not the true one, that appeared on the record, and therefore the case relied on seems not to support the decision.

EVIDENCE HEARSAY-SUPPLEMENTING TESTIMONY BY CONTEMPORANEOUS MEMORANDA. To impeach the defendant as a witness in his own behalf, the prosecution offered his evidence given through an interpreter at the preliminary examination. For this purpose, the interpreter testified that he had accurately repeated in English the defendant's statements, and the official stenographer testified that he had reported

the interpreter's translation verbatim. Held, that the stenographer's report is hearsay and the admission of it was error. People v. John, 69 Pac. Rep. 1063 (Cal.).

Though the stenographer's notes may serve as a report of the testimony of a witness who testifies through an interpreter, they are obviously hearsay when the precise language of the witness is the subject of proof. People v. Ah Yute, 56 Cal. 119; cf. 15 HARV. L. REV. 859. But when, as in the principal case, the interpreter is also on the stand under oath and subject to cross-examination the hearsay rule ought not to apply. See THAYER, PREL. TREAT., EV. 501. The notes, however, can be used, if at all, not as independent evidence, but merely to supplement the interpreter's testimony. The rule on this point ordinarily is that when, as is probable in the principal case, a witness has no independent recollection, he may aid his testimony by his own contemporaneous memorandum or by that of another verified by him when made. See Acklen's Executor v. Hickman, 63 Ala. 494. Obviously the stenographer's notes are not within this rule. However, as all the parties to the transaction are before the court and under oath, the accuracy of the notes can be practically assured. This being true, it would seem wise to extend the rule so as to permit the use of such a memorandum as this. The step has, indeed, been taken in some jurisdictions. Cf. Mayor, etc., of N. Y. v. Second Ave. R. R. Co., 102 N. Y. 572; I GREENL. EV., 16th ed., § 439 b.

EVIDENCE

SUBSEQUENT DECLARATIONS OF INTENTION. — In a criminal prosecution for assault, after prior threats by the accused had been proved and other circumstantial evidence had been introduced, a declaration made by the accused eight or ten days after the alleged assault, to the effect that he would kill the assaulted person, was offered in evidence. Held, that the subsequent declaration was properly admitted as evidence of the existence of a guilty intent in the mind of the accused at the time of the crime. Jones v. State, 32 So. Rep. 793 (Fla.).

It is the modern doctrine that a prior declaration of intention is admissible to prove the commission of the act to which the declaration relates, if sufficiently close in point of time. Mutual Life Insurance Co. v. Hillmon, 145 U. S. 285. This is because declarations are competent evidence of a material mental state, and the existence of an intention to do an act is material as showing that it was ultimately done. By reasoning that the existence of a state of mind at the time a declaration is made tends to show its existence at an earlier time, it has been said that a declaration of belief or intention made subsequent to the alleged act is similarly admissible. GREENL. Ev., 16th ed., § 162 e. But such a declaration is of so slight probative value and so likely to receive undue weight, that its admissibility may well be questioned. This appears to be the better view as to post-testamentary statements, the most common example of declarations of a subsequent mental state. See 15 HARV. L. REV. 149. But so far as the declaration in question is concerned, it seems to have been properly admitted as confirming the inference from the prior threat that the act was done, by showing that the vicious intent continued. Here the objections suggested above have no place.

INTERNATIONAL LAW STATUS OF DEPENDENCY OF FOREIGN STATE-JUDICIAL QUESTION. - By a treaty with France, tartar was dutiable at 5 per cent ad valorem. An importer of tartar from Algeria claimed the benefit of that provision. The United States contended that Algeria was not a part of France. Held, that it is a judicial question, and the court will receive evidence of the French law. Tartar Chemical Co. v. United States, 116 Fed. Rep. 726 (Circ. Ct., S. D., N. Y.). See NOTES, P. 134.

JUDGMENTS-PASSING TITLE BY JUDGMENT IN TROVER-RES JUDICATA.The plaintiff having obtained a judgment in trover against the defendant for the value of a chattel, which judgment remained unsatisfied, subsequently brought replevin against the defendant to recover the chattel. Held, that the plaintiff is barred by the previous judgment against him, and the property in the chattel is now vested in the defendant. Singer, etc., Co. v. Yaduskie, 59 Leg. Intell. 367, 11 Pa. Dist. Ct. Rep. 571. See NOTES, p. 131.

JUDGMENTS-RES JUDICATA-IDENTITY OF PARTIES AND SUBJECT MATTER. The plaintiff was the driver of a wagon which was injured by collision with the defend ant's car. He was also a member of the firm which in a prior action had obtained a verdict for the injury to the wagon, thus establishing the defendant's negligence and the exercise of due care by the plaintiff in relation to the wagon. The plaintiff brought the present action for personal injuries sustained in the collision. Held, that the verdict in the former action is conclusive in regard to the questions of the defendant's

negligence and the plaintiff's contributory negligence. Cahnmann v. Metropolitan St. Ry. Co., 37 N. Y. Misc. 475 (Sup. Ct., App. Term).

Since a partnership is not a legal entity, all actions are brought by or against the several partners jointly. Metal Stamping Co. v. Crandall, 17 Fed. Cas. No. 9,493 c. Consequently the plaintiff was a party to the prior action; and the fact that he was but one of several joint plaintiffs would not permit him to relitigate the matters there decided. Wilson v. Buell, 117 Ind. 315. But to render matter res judicata it is requisite that the subject matter of the prior and present actions should be identical. Benz v. Hines, 3 Kan. 390, 397; Palmer v. Hussey, 87 N. Y. 303. This was not the fact here, the subject matter being respectively injury to property and injury to the person. Moreover, the plaintiff could not have recovered in that action for injuries in which he alone had an interest. Gray v. Rothschild, 48 Hun (N. Y.) 596; Rhoads v. Booth, 14 Ia. 575. Since, therefore, the prior verdict did not conclude the plaintiff as regards his personal injuries, the doctrine of mutuality should prevent him from claiming its benefits. See Goodnow v. Litchfield, 63 Ia. 275. Nor was the question of the plaintiff's contributory negligence in relation to himself necessarily settled by the prior action, since it is conceivable that by jumping the plaintiff could have avoided personal injury even after the collision and damage to the wagon had become inevitable. seems to be no authority directly in point.

There

PROCEDURE SERVICE ON Corporation — Officer of Foreign CORPORATION WITHIN STATE. — The code of North Carolina allows service of summons on a foreign corporation when it can be made in the state on the president of the corporation. CIV. CODE, § 217, subsec. I. Held, that service on the president of a foreign corporation while in the state is sufficient to give the state court jurisdiction, although the corporation was doing no business in the state. Jester v. Baltimore, etc., Co., 42 S. E. Rep. 447 (N. C.).

Statutory provisions similar to that in the principal case are not uncommon; and it is generally held that judgments rendered on such statutory service are valid for every purpose within the State. Pope v. Terre Haute, etc., Co., 87 N. Y. 137; Col. Iron Works v. Sierra Grande M. Co., 15 Col. 499. When, however, the statute does not expressly mention foreign corporations, some courts hold it applicable to domestic corporations only. Newell v. Great Western Ry. Co., 19 Mich 336. There can be no doubt that a state legislature has power to determine what shall be sufficient service to support judgments of the state courts within the state. Service by publication affords an example of the exercise of this power. Mason v. Messenger, 17 Ia. 261. But a judgment obtained on constructive service such as this will not be recognized in other states. Latimer v. Union P. Ry. Co., 43 Mo. 105. Nor will such service be considered sufficient in event of the case being removed to the Federal courts. Goldey v. Morning News, 156 U. S. 518. It would seem, therefore, that the defendant corporation might have put in a special appearance, removed the case to the Federal court on the ground of diversity of citizenship, and there obtained a dismissal because of the insufficiency of the service. See Goldey v. Morning News, supra.

PROPERTY-FIXTURES-EFFECT OF NEW LEASE ON TENANT'S RIGHT of ReMOVAL. Premises were let to a firm for a certain term. Before its expiration one partner retired and the landlord cancelled the lease, giving the other partner a lease for the remainder of the term identical except for a power of assignment in the lessee. Held, that it is not such a new leasing as will prevent the tenant from removing trade fixtures previously erected. Baker v. McClurg, 64 N. E. Rep. 701 (Ill.). For a discussion of the question involved, see 15 HARV. L. REV. 853. 1

PROPERTY - NATURE OF GOODWILL. - An Indiana statute taxed "all property within the jurisdiction of the state, not specially exempt." Held, that the goodwill of a newspaper is not "property" within the act. Hart v. Smith, 64 N. E. Rep. 661 (Ind., Sup. Ct.). See NOTES, p. 135.

RECOVERY BY LESSEE.

PROPERTY - NUISANCE A lessee took property, knowing that it was affected by a private nuisance. Held, that the lessee can recover the depreciation in the rental value. Bly v. Edison Electric Illuminating Co., 172 N. Y. 1, reversing the judgment in 54 N. Y. App Div. 427. For a discussion of the decision in the lower court, see 14 HARV. L. REV. 547.

PROPERTY - WATERCOURSES RIGHTS OF NON-RIPARIAN OWNERS. The plaintiffs, neither owning nor leasing any land abutting on a river, leased from a power company the right to draw water from the power-canals which it had dug above its dam upon the river. A city higher up the stream was impliedly authorized by statute to

drain its sewage into the stream. Held, that the plaintiffs can recover in an action against the city for pollution of the water. Doremus v. City of Paterson, 52 Atl. Rep. 1107 (N. J.).

In England a riparian owner cannot assign his water-rights as against upper or lower proprietors, but can create only a contract right against himself. Stockport Waterworks Co v. Potter, 3 H. & C. 300; Ormerod v. Todmosten Mill Co., 11 Q B. D. 155. The English decisions have been expressly followed in Gould v. Eaton, 117 Cal. 539 But other American cases seem somewhat to discredit the doctrine. See Hall v. City of Ionia, 38 Mich. 493; Gillis v. Chase, 67 N. H. 161; St. Anthony Falls Co. v. Minneapolis, 41 Minn. 270. The principal case was complicated by a question of eminent domain. Even if the plaintiffs had merely a contract right against the power company, such right was property which ought not to have been taken for public use without just compensation. See LEWIS, EMINENT DOMAIN, § 263, and cases cited. It would seem, therefore, that the case is sound. But, aside from distinctions of this nature, it seems that the English rule should be followed. The natural rights which are an incident of riparian ownership are in the nature of easements, strictly appurtenant to the riparian land. Few principles are more firmly established than that the owner of a dominant tenement cannot assign in gross an easement appurtenant to it. Akroyd v. Smith, 10 C. B. 164.

RAILROADS MAINTENANCE OF CROSSING-STREET Railway crossing RailROAD IN STREET. — A steam railroad had tracks in a public street. A street railway constructed a line across it in an intersecting street. Held, that the steam railroad is entitled to an injunction restraining the street railway from running cars over the crossing until it has agreed to pay the expenses of maintaining the crossing. Central Pass. Ry. Co. v. Philadelphia W. & B. R. Co., 52 Atl. Rep. 752 (R. I.).

A railroad which is owner in fee of its right of way is allowed compensation for the injury to its property and business resulting from the crossing of its tracks by a new line, and the burden of maintaining the crossing is also placed on the new line. Lake Shore, etc., Ry. v. Chicago, etc., R. R., 100 Ill. 21. But where the tracks of the railroad are laid in the street, the company's right is subject to the public easement of travel, and since a street railway is generally held to be an instrument through which the public exercises this right, a railroad is not allowed compensation for resulting inconvenience to its business when its tracks in the street are crossed by a street railway. Buffalo, etc., R. R. v. New York, etc., R. R, 72 Hun (N. Y.) 587; Chicago B. &Q R. Ř. v. West Chicago St. Ry., 156 Ill. 255. In making alterations in the rails and roadbed of the railroad, the street railway is, however, exercising a privilege which is not given to the general public, and the holding of the principal case that the expense of maintaining these alterations must be borne by the street railway, seems unassailable. No other decision upon the precise point has been found.

STATUTE OF FRAUDS PROMISES PARTLY WITHIN AND PARTLY WITHOUT THE STATUTE. The plaintiff conveyed mortgaged premises to the defendant as security for a loan. The defendant agreed orally to pay the interest on the mortgage and to reconvey the premises upon payment of the loan. Upon the defendant's subsequent refusal to reconvey, the plaintiff obtained a decree for reconveyance and then instituted this suit for breach of the agreement to pay the interest. Held, that the Statute of Frauds is a defense, since the contract is indivisible and the reconveyance was not voluntary. Bradford v. McQuestion, 64 N. E. Rep. 688 (Mass).

Generally, where a promise partly within and partly without the Statute of Frauds is indivisible, the statute is a good defense to an action on the part without the statute. Thayer v. Rock, 13 Wend. (N. Y.) 53. The reason sometimes assigned is that to allow the action would have a direct tendency to compel performance of the part within the statute. See Wetherbee v. Potter, 99 Mass. 354, 361. But after a voluntary performance of the part of the promise within the statute, this reason fails, and an action upon the part without the statute is properly permitted. Page v. Monks, 5 Gray (Mass.) 492. The reason fails equally when the performance is involuntary, as in the principal case. If the decision is to be supported, therefore, a different theory must be adopted, and the cases allowing an action on the part of the promise without the statute after voluntary performance of the part within must be made to rest upon the ground that the promisor has waived his defense by the voluntary performance. Of course an involuntary performance cannot be regarded as a waiver.

TAXATION PROVISIONS FOR EQUALITY AND UNIFORMITY. A statute provided that "all real and personal estate liable to taxation shall be estimated and assessed ... at its full and true value." An injunction was prayed to restrain the collection from