the shareholders of part of a tax on certain stock, on the ground that it was assessed at its full value, whereas the realty of New York was deliberately assessed at only 60 per cent of its full value. The defendant demurred. Held, that it is not a case for equitable interference. Mercantile Nat. Bank v. Mayor, etc., 172 N. Y. 35. See

NOTES, p. 136.

TORTS LIABILITY OF CUSTODIAN FOR ESCAPE OF SMALLPOX PATIENT. — A railroad company in performance of a contract with its employees to care for them while sick, negligently provided an incompetent attendant for a delirious smallpox patient. The patient escaped and infected the plaintiff. Held, that the company is liable. Missouri, etc. Ry. Co. v. Wood, 68 S. W. Rep. 802 (Tex., Civ. App.). See NOTES, p. 133.

TORTS LIABILITY FOR EXPLOSIVES INTERVENTION OF WILLFUL ACT OF THIRD PARTY.-The defendant kept five thousand pounds of gunpowder stored in a populous neighborhood. This powder was maliciously exploded by an employee, and the plaintiff's house near by was damaged. Held, that, under the circumstances, keeping the powder was a nuisance, and the defendant is liable absolutely. Kleebauer v. Western Fuse and Explosives Co., 69 Pac. Rep. 246 (Cal.).

That one who keeps large quantities of explosives in a populous neighborhood is guilty of creating a nuisance, and is liable for all damage resulting, irrespective of negligence, seems to be well-settled law. Heeg v. Licht, 80 N. Y. 579; McAndrews v. Collerd, 42 N. J. Law 189. And it is held that the liability is none the less although the explosion was caused by lightning. Cheatham v. Shearon, 1 Swan (Tenn.) 213, 55 Am. Dec. 734; Prussak v. Hutton, 30 N Y. App. Div. 66. It therefore seems not a very long step to the decision in the principal case which, on the precise facts, seems to be one of first impression. Large stores of explosives in inhabited neighborhoods are so extremely hazardous that it is reasonable to impose this absolute liability although the nuisance per se may be only a small or remote part of the cause of the damage. Explosion cases must be distinguished from cases like Rylands v. Fletcher, L. R. 3 H. L. 330. In that class of cases the danger arises from an agency less likely to do damage, and is not so extreme as to create a nuisance. In such cases the intervention of a third party is held to exempt the defendant from liability. Box v. Jubb, L. R. 4 Ex D. 76.

TORTS LOOK AND LISTEN RULE-STREET RAILWAYS. The plaintiff drove onto the tracks of an electric street railway at a crossing, and was struck by a car which he had not seen, but might have seen in time to avoid the accident had he looked. Held, that the rule requiring a man to look before crossing a railroad is applicable to an electric railway. Beerman v. Union Ry. Co., 52 Atl. Rep. 1090 (R. I.). For a discussion of the question involved, see 14 HARV. L. Rev. 234.

TORTS SLANDER PROOF OF MALICE - REPETITION OF SLANDER AFTER COMMENCEMEnt of Suit. After the commencement of an action for slander, the defendant repeated the slander to another person. Held, that evidence of the latter' slander is not admissible to show the malicious character of the former, since it is in itself the ground for another action. Swindell v. Harper, 41 S. E. Rep. 117 (W. Va.). Malice, like motive, may be proved, if material, by evidence of other reasonably proximate acts or declarations of the defendant. Thurston v. Wright, 77 Mich. 96, 101; Williams v. Miner, 18 Conn. 463, 472. It is generally held immaterial that such declarations were made after suit was brought. True v. Plumley, 36 Me. 466. 478; Zeliff v. Jennings, 61 Tex. 458. 464. But in the case of a subsequent publication of a libel or slander, the jury is to be cautioned against giving damages for the subsequent publication as such. True v. Plumley, supra. New York, and possibly Tennessee, are in accord with the principal case in holding that the later defamation cannot be introduced as evidence of the malicious character of the previous publication, if an action would lie for such subsequent publication itself. Frazier v. McCloskey, 60 N. Y. 337; Howell v. Cheatham, Cooke (Tenn.) 247. This view would seem to be due to a failure to notice that evidence of the subsequent publication is not introduced as in itself a ground of damages, but only as evidence of the character of the prior publication, and so of the proper amount of exemplary damages; while in a separate action for such. subsequent defamation the damages would be solely for the publication itself.

TRUSTS CHARITABLE TRUSTS GIFT OF CEMETERY. A deed of land was made to certain school districts for the purpose of establishing a cemetery. The. grantees were incapable of taking the legal title. Held, that the deed created a charitable trust. Huni v. Tolles, 52 Atl. Rep. 1042 (Vt.). See NOTES, p. 128.

TRUSTS CONFUSION OF TRUST FUNDS-FOLLOWING TRUST RES. - A trustee deposited in a bank to his own credit funds held in trust for the plaintiff. Subsequently he deposited to the same account a second sun, a part of which was his own property and the remainder a trust in favor of one Moors, the proportions not being exactly ascertainable. The trustee afterwards drew upon the account for his own use, thereby reducing it to a sum admittedly less than the interest of Moors. The trustee having become bankrupt, the plaintiff claimed priority on the balance of the account. Held, that he cannot trace his trust fund into this balance and must come in with the general creditors. In re Mulligan, 116 Fed. Rep. 715 (Dist. Ct., Mass.).

While this result does not seem open to question, the grounds adopted by the court are not altogether clear. Where a trustee mingles trust funds with his own bank account, drafts made by him for his own purposes are, as against the cestui, charged to the trustee's share until it is exhausted. In re Hallett's Estate, 13 Ch. D. 696. See National Bank v. Conn., etc., Ins. Co., 104 U. S. 54. The remainder is then entirely a trust fund, and further drafts by the trustee must, of course, directly affect the beneficiaries. In such cases the law seems settled that, as between the two trust funds, these wrongful drafts are charged to the one first deposited. In re Hallett's Estate, supra. See LEWIN, TRUSTS, 10th ed., 1096. The uncertainty regarding the exact amount of Moors' interest should not prevent the application of this rule, since the ultimate balance was less than the sum admittedly due him, and hence the wrongful drafts must have been greater than the petitioner's interest, which would, therefore, be extinguished. It would seem that the decision should have been based expressly on this rule, and the balance held subject to the claim of Moors as cestui que trust.

BOOKS AND PERIODICALS.

PROPOSED MODERNIZATION of the Law of Defamation. - Current dissatisfaction with the present state of the law of slander and libel finds somewhat violent expression in a recent article. Absurdities of the Law of Slander and Libel, by James C. Courtney, 36 Am. L. Rev. 552 (July-August, 1902). Mr. Courtney points out the extent to which the modern law on the subject follows the artificial presumptions and harsh rules of the sixteenth century, and urges sweeping statutory changes. He argues that the plaintiff is too greatly favored, and would remedy the situation by compelling him to prove damage affirmatively in all cases, by giving the defendant greater leeway in establishing the substantial truth of his statement, and by allowing the defendant to show by specific instances that the plaintiff did not deserve the reputation alleged to have been injured.

It will be conceded that the law on libel and slander crystallized too early, and that the delay in freeing it from the old arbitrary rules has been unfortunate. Progress, however, has been made. For example, truth is now universally recognized as a complete defence in civil actions. Haynes v. Spokane Chronicle Pub. Co., 11 Wash. 503; see Odgers, Libel and Slander, 3d ed., 192. So, too, evidence that the plaintiff's reputation is bad is admissible in mitigation of damages. Scott v. Sampson, 8 Q. B. D. 491. Such gradual reform has undoubtedly been beneficial, and perhaps further changes are desirable. But the revolutionary legislation proposed by Mr. Courtney seems to err on the side of radicalism as much as does the present law on the side of conservatism.

In discussing the author's first suggestion, that the presumption of damage to the plaintiff be abandoned, it must be admitted that the old line between words actionable per se and words requiring proof of special damage was not drawn in accord with twentieth century ideas, and that there has been unfortunate reluctance to change it. But modifications in this, too, have been made, though not always in the direction of increasing the plaintiff's burden; for instance, the charge of unchastity in a woman has been declared actionable per se, and thus the worst error has been rectified. To force the plaintiff in every case to prove

special damage would surely be a mere shifting of severity. Damage to reputation may obviously be very real and yet extremely difficult to prove. Further

more, even though the presumption of damage be allowed, the jury still has control over the amount of the award. Though it will rightly feel that injury will very probably follow certain reports, it will not render exorbitant verdicts where damage does not clearly exist.

The degree of exactness with which the defendant's proof must square with his previous statement in order to sustain the defence of truth cannot be precisely defined in a general rule. It is obviously wise to restrain the careless use of defamatory language. Strictness, however, easily leads to unjust results, as in the Indiana case held up to ridicule by Mr. Courtney, in which a defendant who had alleged that the plaintiff had stolen two animals was not allowed to prove that he had stolen one. Swann v. Rary, 3 Black. (Ind.) 299. An excellent test has been suggested: "Did the libel as published have a different effect on the mind of the reader from that which the actual truth would have produced ?” ODGERS, OUTLINE OF THE LAW OF LIBEL, 99; see Alexander v. North Easttern Ry. Co., 6 B. & S. 340. This test seems worthy of general adoption.

The suggestion that the defendant should be allowed to prove in mitigation of damages, by specific instances distinct from those detailed in his original statement, that the plaintiff did not deserve the reputation alleged to have been injured, seems most dangerous. It is true that the plaintiff had no right to a reputation he did not deserve, and that this is the real basis for allowing the defence of truth. But where truth is not pleaded, the admission of evidence that the plaintiff's reputation was undeserved would be unfair and unwise. It would compel him to be prepared to defend all his past life, and would afford opportunity for publishing indefinite amounts of libellous matter during the trial itself. There is also the very real, though perhaps exaggerated, danger of confusing the issue by these collateral questions.

In some respects the present law may, as Mr. Courtney charges, operate harshly upon the defendant; to some extent it may foster baseless litigation. But the actual injustice resulting from it seems inconsiderable as compared with the harm that might follow the adoption of the author's extreme views. The wise course would seem to be to strengthen the reform tendency already apparent in the courts, rather than to resort to summary legislation which would impose an undue burden on the plaintiff and remove salutary restraints on careless accusation.

Power of Legislature TO REGULATE MINERS' WAGES. As a result of the recent coal strike, the proposition has been advanced that the legislature of Pennsylvania has the power to classify the coal mines with reference to the depth and thickness of the veins, to fix schedules of reasonable minimum wages per ton for mining coal, and to impose a penalty upon any operator who may make contracts with miners for less than such wages. Power of State Legisla tures to fix the Minimum Amount of Wages to Coal Miners, by R. M. Benjamin, 64 Albany L. J. 349 (Oct., 1902). The author supports the proposed legislation as a valid exercise of the police power, and, so far as corporations are concerned, of those powers of amendment which a state possesses over their charters. It would seem that unless it can be defended upon one of these grounds it is in violation of those clauses of the Fourteenth Amendment which forbid the states to “deprive any person of life, liberty, or property without due process of law," or to "deny to any person the equal protection of the laws." It is now settled that “liberty" includes the right to contract. Allgeyer v. Louisiana, 165 U. S. 578. It is also settled that a corporation is a person within the meaning of the Amendment. Smyth v. Ames, 169 U. S. 466, 526. It seems at the outset at least doubtful whether the proposed legislation is not void as denying the equal protection of the laws. Gulf, etc., Ry. v. Ellis, 165 U. S. 150.

66

Granting that the legislation is not open to the objection last stated, can one

say that it is a valid exercise of the police power? The right to contract may be regulated under that power for the purpose of protecting the public health, morals. comfort, or safety. Accordingly, the Supreme Court has sustained a law limiting the hours of labor in mines, upon the ground that the occupation is one dangerous to health. Holden v. Hardy, 169 U. S. 366. But a measure cannot be justified under the police power unless calculated to secure the objects for which the power exists. For this reason, legislation limiting the hours of labor generally, or prohibiting payment except in money, or providing against deductions in wages for imperfections in work, has usually been held unconstitutional. Low v. Rees Printing Co., 41 Neb. 127; Godcharles & Co. v. Wigeman, 113 Pa. St. 431; Commonwealth v. Perry, 155 Mass. 117. Inasmuch as the court in the Pennsylvania case cited above would not support a law fixing the manner of payment, it is scarcely to be expected that a law imposing a still greater limitation upon the power to contract, by fixing a schedule of wages, would be upheld.

Again, even though it be admitted that the police power is properly invoked to regulate the charges of railroads and other public service corporations, that fact can have no bearing on the present question; for the coal companies are not shown to be public service corporations. Even in the case of the latter, the prices which the legislature may regulate directly are the charges to the public, not the wages paid to employees. Cf. Transportation Co. v. Standard Oil Co., 40 S. E. Rep. 591 (W. Va.).

It is further contended that the proposed legislation, so far as it applies to corporations, is a valid exercise of the powers of amending charters expressly reserved by the State. Legislation regulating the manner of payment has been held constitutional under this power. Leep v. Ry. Co., 58 Ark. 407. And it is a popular idea that the power of amendment, because reserved in general terms, is therefore absolute. But the courts which have gone farthest in recognizing the power have been careful to point out by way of dictum that it must be so exercised as not to infringe upon constitutional rights. "The alterations must be reasonable; they must be made in good faith, and be consistent with the scope and object of incorporation." Shields v. Ohio, 95 U. S. 319, 324. "We do not mean to intimate that the legislature can by way of amendment fix or limit the compensation of employees of railroad companies." Leep v. Ry. Co., supra. Further, the constitution of Pennsylvania provides that amendments must be "just to the corporators." It would seem that a law obliging a corporation to pay a wage greater than it would have to pay on the open market or incur a penalty would be unjust to the corporators as well as in violation of the Fourteenth Amendment.

EXTENT OF TERRITORIAL WATERS - THE ALASKA-CANADA BOUNDARY.The Anglo-Russian treaty of 1825 fixes as the boundary between Alaska and British Columbia in certain places, a line "parallel to the windings of the coast" and never exceeding the "distance of ten leagues therefrom." The United States, the successor of Russia as sovereign of the seaboard strip, claims that this line should run parallel to the coast line of certain salt water inlets, such as the Lynn Canal. This claim is criticised in a lately published article, on the ground that, since the breadth of these inlets at the mouth is less than six miles, they are territorial waters and hence should be disregarded in determining the boundary. The Alaska-Canada Boundary Dispute, by Thomas Hodgins, Contemp. Rev., No. 440, p. 190 (Aug., 1902).

That inlets not more than six miles broad are territorial waters is a necessary corollary of the well-recognized principle that such is the status of all waters within three miles of a coast. Com. v. Manchester, 152 Mass. 230. If, therefore, such inlets are to be disregarded in fixing the boundary for the reason that they are territorial waters, all waters up to the three mile limit should be disregarded for the same reason. In that event the distance of ten leagues from the coast would be measured not from the shore line but from the three mile limit.

a result which clearly cannot be supported. It would seem, therefore, that the boundary dispute is not a question of territorial waters, but turns simply on the proper construction of the treaty as a document.

The writer also suggests that the claim of the United States is inconsistent with its assumption of sovereignty over Delaware Bay, Chesapeake Bay, and similar bodies of water whose breadth is greater than six miles. But this jurisdiction seems to involve principles different from those governing the boundary dispute, since it is essentially a question of territorial waters. The propriety of the jurisdiction is not discussed by Mr. Hodgins, and it is now hardly open to question. That it is claimed and exercised is well settled. The Grange, 1 Op. Attys. Gen. 32; Stetson v. United States, 32 Albany L. J. 484. While it has frequently been suggested that waters beyond the three mile limit may be territorial, the principle underlying the doctrine and the extent of its proper application have apparently never been indicated. See I KENT COM. 26-31. That wide claims over the open sea cannot be upheld was shown by the award in the Behring Sea Arbitration. See 27 Am. L. Rev. 703. But an inlet or arm of the sea, even if more than six miles wide, which lies fairly within the general contour of a coast, seems to be recognized by international law as subject to the same sovereignty as that coast. Reg. v. Cunningham, Bell's Cr. Cas. 72. See 2 Documents of Halifax Commission, 1899-1906. This doctrine seems naturally suggested by the geographical outline of such a coast. It is also supported by reasons of expediency; for sovereignty over these inlets is essential to the security of the nation which controls the coast; they also lie so far within the power of that nation that in many cases it would be difficult to dispute its authority. The latter reason seems somewhat analogous to that which originally determined the three mile limit, namely, that at no greater distance could control be exercised, three miles then being the extent of effective cannon range. HALL, INTERNAT. LAW, 4th ed., 160.

THE EMPLOYERS' LIABILITY ACTS AND the AssumpTION OF RISKS, in New York, Massachusetts, Indiana, Alabama, Colorado, and England. By Frank F. Dresser. St. Paul: Keefe-Davidson Company. 1902. pp. xii, 881. 8vo.

The past fifteen years have witnessed rapid and substantial development in this topic of the law, so that to-day in those jurisdictions which have enacted employers' liability acts, they form the basis, in whole or in part, of a very large proportion of all tort actions. As all the acts are in the main uniform, the interests of the business community manifestly demand their consistent interpretation and application. A work, therefore, like the present, which aims to ascertain and systematize the complicated results of the mass of recent cases on the subject, performs a most important service.

The author first treats of the character, purpose, and scope of these statutes, giving special attention to their effect in increasing the employer's liability at common law. This common law liability is clearly and concisely stated, and the direction and limits of its statutory extensions are plainly indicated. After a brief consideration of the questions of parties and damages. Mr. Dresser discusses with thoroughness and detail the grounds and conditions of liability established by the acts, analyzing certain principles and interpretations which have now become firmly settled, and dealing fully with many of the rather perplexing questions that frequently arise.

The latter half of the book consists of an excellent discussion of the doctrine of assumption of risk, as it is applied both at common law and under the acts. Here the too frequently neglected distinction between that assumption of risk which arises out of the relation of master and servant and the wider doctrine of volenti non fit injuria is carefully preserved. The former doctrine is also of comparatively recent development, and this treatment of it in the light of late decisions will prove of considerable value.