ORIGIN OF DUTY NOT TO CAUSE HOMICIDE BY AN OMISSION. - In cases of homicide by an omission, rather than by a positive act, the criminal law has not yet definitely settled the nature of the defendant's duty. One way in which a legal duty may originate is illustrated in the recent English case of Rex v. Pitwood, 19 T. L. R. 37. The case is peculiarly interesting, since on the facts it directly overrules Regina v. Smith, 11 Cox C. C. 210. It holds that where, through a gate-keeper's negligent failure to close the gates, a person on the track is killed by a train the gate-keeper is guilty of manslaughter. The court argues that the defendant's criminal liability grew out of the contractual duty existing between himself and the railroad. The decision seems to be sound, and several other cases seem to adopt a similar view of the origin of the legal duty. Regina v. Lowe, 3 C. & K. 123; Regina v. Hughes, 7 Cox C. C. 301.

The legal duty in cases of this kind may arise in at least three ways. The first of these is illustrated by the principal case. Secondly, the duty may be imposed by statute. Regina v. Downes, 13 Cox C. C. 111. See Regina v. Middleship, 5 Cox C. C. 275. Thirdly, the weight of authority seems to hold that whenever a person has undertaken to perform any act, even gratuitously, so that others in reliance thereon have changed their position, a legal duty arises toward them. Regina v. Marriott, 8 C. & P. 425; United States v. Knowles, Fed. Cas. 15, 540. Contra, Regina v. Shepherd, 9 Cox C. C. 123. The principal case probably comes within. this class also. In fact the element of reliance would seem to be present in most of the cases where the duty is regarded as arising from the contract. This third rule is subject to two extensions. Where one person relying on the defendant has placed another in a position of dependence on him, a duty arises. For example, if in the principal case a father, relying on the defendant, had driven on the crossing with his child, the defendant would be responsible for the child's safety independently of the contract. There seem to be no cases directly covering this point, but it falls within the spirit of the rule. Secondly, where the injured party is incapable of reliance, but his position has been changed by the defendant in pursuance of some undertaking to protect him. This covers undertakings to care for idiots and very young children. The cases are in conflict on this point, but the better view seems to favor the defendant's liability, since he has by his own act changed the injured party's position and assumed responsibility for his safety. Regina v. Nicholls, 13 Cox C. C. 75; contra, Rex v. Smith, 2 C. & P. 449.

The only cases of liability for manslaughter from an apparent omission which are not included in one of the classes suggested seem to be those where a man has undertaken to control a dangerous force. He then must not negligently allow it to injure anyone. See WHARTON, HOм., § 87. Such cases are nearly akin to those where there has been some positive The person by taking the dangerous force into his control has made it his, and is responsible for it.

The adoption in full of these rules of legal duty would not greatly extend criminal liability in view of the standards of negligence in criminal law. The criminal law requires a man to act with no greater degree of care than a person of his standard of capacity would consider proper. Further, to render a defendant liable, such reckless negligence must be proved as to show a criminal state of mind. Regina v. Noakes, 4 F. & F. 920. Subject to such limitations, broad standards of responsibility may safely be adopted.

RECOVERY BY PARENT FOR SEDUCTION OF CHILD. - Technically, even to-day, the common law action for seduction is not analogous to, but identical with the old action for disabling or enticing away a servant, and is founded purely on the relation of master and servant presumed to exist between parent and child. Grinnell v. Wells, 7 M. & G. 1033. In substance, however, the action is based on the injury to the happiness and reputation of the plaintiff and his family. Terry v. Hutchinson, L. R. 3 Q. B. 62; Emery v. Gowen, 4 Me. 33. The courts, nevertheless, are unanimous in insisting on the formal though oftentimes fictitious relationship of master and servant to give the plaintiff standing in court. The hardship which results from this requirement is illustrated by a recent Irish case. A daughter was seduced and made pregnant during her father's lifetime. The father died two months before her confinement, and her mother brought suit. No recovery was allowed, because the seduced person was not the plaintiff's servant at the time of seduction. Hamilton v. Long, 36 Irish L. T. R. 189.

The same technical difficulty stands in the way of justice in other cases of more frequent occurrence. When, for example, the daughter is serving in a household other than her father's, she ceases to be his servant. If then she returns to him after her seduction but before her confinement, he can in England have no recovery. Dean v. Peel, 5 East 45. In this country the courts have avoided this unfortunate result where the seduced person is a minor, by holding that the right at any time to reclaim her services is enough to continue the relation of master and servant and sustain the action. Martin v. Payne, 9 Johns. (N. Y.) 387. This extension of the English rule is good as far as it goes; but it lets the wrongdoer escape where his victim is of age, Nickerson v. Stryker, 10 Johns. (N. Y.) 115; also where she is a minor bound out as apprentice, Dain v. Wycoff, 7 N. Y. 191; or where, as in the principal case, the father dies after the seduction but before the presumed loss of service. It is suggested that the injustice of the English rule might be avoided without departing from the technical foundation which all courts require for the action. This would be accomplished if the test of liability were made the relation of the victim to the plaintiff at the time, not of seduction, but of confinement. It must be admitted, however, that only two cases have been found which adopt this Coon v. Moffit, 3 N. J. Law 169; Parker v. Meek, 3 Sneed (Tenn.) 29. And it has been disapproved of, expressly or impliedly, in numerous other decisions. South v. Denniston, 2 Watts (Pa.) 474; Bartley v. Richtmyer, 4 N. Y. 38. It is argued that a master could not recover for the beating of a servant before he became his servant, since the loss is due to his own folly in hiring a disabled person. This is true; but in the principal case the daughter is the plaintiff's servant, not by a subsequent contract, but merely by virtue of residence with her. More analogous to the principal case is one where A hires B, the term of service to begin on the termination of B's service with C, and B is beaten and disabled just before the end of the first service. No one can say that in such a case the courts would not have given A an action for services lost. The injury would be greater than if the beating took place after the term of service began. So in the principal case the plaintiff's wrong is as real as if her daughter had been her servant at the time of seduction. Although the weight of authority does not accept the test suggested, it seems deserving of recognition, for it accords with the modern tendency of the law to regard not so much the formal as the substantial basis of an action.

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JUSTIFICATION FOR PROCURING BREACH OF CONTRACT. A question of great practical importance has been discussed recently in the English courts. A labor union by threatening a strike forced a business firm to break its contract with an apprentice, and when sued by the latter justified its action on the ground of a prior contract with the firm forbidding such employment. The court refused to allow the plea. Read v. Friendly Society of Operative Stonemasons, 19 T. L. R. 20 (Eng., C. A.).

In considering the question of justification which the case raises, it is essential to distinguish and exclude interference that merely prevents the formation of contracts. Cf. Bulcock v. St. Ame's Master Builders' Federation, 19 T. L. R. 27. Whatever motives and methods may be thought legally permissible in such cases, it seems clear that one who knowingly procures the breach of an existing contract has committed a legal wrong and should be prima facie liable. He has intentionally destroyed a property right, and the burden should be upon him to show justification; not upon the plaintiff to show some additional element of illegality such as actual malice. See Quinn v. Leatham, [1901] A. C. 495 at 510; but see also Brown Hardware Co. v. Ind. Stove Works, 69 S. W. Rep. 805; 16 Harv. L. REV. 228. What will constitute such justification has not, however, been satisfactorily determined. Assuming that the means used be legal the test must be found in the defendant's motive. It is submitted that the line should be drawn between action prompted by self-interest or malice toward the plaintiff, and that honestly prompted by the interest of the public or of the party influenced. See Bowen v. Hall, 6 Q. B. D. 333 at 338; Glamorgan Coal Co. v. South Wales Miners' Fed., infra. A typical case of the latter class is that of a brother persuading a sister to break her engagement with an unworthy fiancé. A further instance is found in the case of public-spirited interference to prevent the building of bridges by unreliable men. There is a close analogy between this principle and that of privilege in defamation as applied to communications made in the interest of the recipient or of the public. On the other hand justification is lacking not only in cases of actual malevolence toward the plaintiff, but also in cases of mere self-interest. The latter motive though it will not make a legal act illegal cannot be considered "just cause or excuse" for a prima facie tort. It follows from this that employers and labor unions cannot procure the breach of existing contracts without rendering themselves legally liable. The decision of the principal case disallowing the special plea of prior contract is in harmony with the classification suggested. See Curran v. Galen, 152 N. Y. 33. A close case under this theory was lately presented in England. Labor leaders, acting under special authority given by the men, ordered a "stop day" involving breach of contract. They were held justified on the ground that they had acted solely for the best interests of the men. Glamorgan Coal Co. v. South Wales Miners' Fed., 18 T. L. R. 810. A different decision might well have been reached, even assuming that disinterested citizens whose counsel was sought could have legally advised breach of contract. It is understood that this case is to be appealed.

When illegal means are used the question is very different. It would seem that justification could not cover the use of threats, coercion, or deceit, even in the extreme case suggested of the brother and sister. Here again the analogy to slander is seen; the defense of privilege is limited and may be rebutted. Combination for action otherwise justifiable raises a question too broad for discussion here.

PRIVILEGE OF ACCUSED AGAINST CORPORAL EXAMINATION. An illustration of the tenderness for the accused shown by the courts of to-day, is furnished in a recent Iowa decision. Testimony of physicians who had made a compulsory physical examination of a prisoner charged with rape was held inadmissible on the ground of privilege. State v. Height, 91 N. W. 935The limits of the rule that the accused may not be compelled to give evidence tending to incriminate himself must be determined largely by the reasons on which the rule is based. Two distinct grounds have been suggested, that of mercy toward the prisoner, and that of the unreliability of evidence thus obtained. On the latter ground, it is urged with much force that if the accused himself be compelled to take the witness stand, his testimony will be untrustworthy, being given under bias; and further, that a skillful cross-examination may entrap him into apparent admissions and confessions which may mislead the jury. This reasoning obviously does not apply to cases of search or inspection or exhibition of the person, in which the reliability of the evidence depends on others than the accused. The other ground, however, that of mercy, while not a weighty consideration in the administration of the law at the period when the privilege originated, is perhaps the strongest element in its support to-day. From this point of view the question is mainly as to the extent to which the guilty should be shielded. The innocent do not need to claim privilege in these cases, and their inconvenience will be slight. See 5 HARV. L. REV. 71. Since the purpose of the trial is to secure justice, the demands of mercy are surely satisfied by the exemption of the accused from testifying by word of mouth or in writing, and any further concession is unwise.

It is well settled that the privilege will not be granted when the prisoner in court is asked to rise or to uncover his face for purposes of identification. State v. Reasby, 100 Ia. 231; State v. Prudhomme, 25 La Ann. 522. But the weight of authority is probably that he need not submit to a much more extended inspection. Day v. State, 63 Ga. 667; People v. McCoy, 45 How. Prac. (N. Y.) 216; contra, Walker v. State, 7 Tex. App. 245; State v. Ah Chuey, 14 Nev. 79. There seems no valid distinction between compelling the prisoner to uncover his face and to uncover his tattooed arm for identification, nor, aside from the requirements of decency, between inspection in and inspection out of the court room. It is true that one who is accused of crime has not lost his personal rights, and he should be protected against public indignity in the court room and inhuman treatment outside. But not even an examination by physicians is so degrading that protection against it is necessary at the possible cost of justice. Subject to the exception just mentioned, it seems clear that a prisoner should not be allowed to conceal the evidence of his guilt under the plea of privilege. Justice and common sense should control mercy.

RECENT CASES.

AGENCY-NONFEASANCE BY AGENT LIABILITY TO THIRD PARTIES. - The plaintiff was injured through the negligence of the defendant, a real estate agent, in failing to keep in proper repair certain premises of which he had been given the entire control by the owner. Held, that the plaintiff could recover from the agent. Lough v. Davis & Co., 70 Pac. Rep. 491 (Wash.).

The defendant could not be held by a third party, on any doctrine of agency, for mere failure to perform a duty to his principal. Hill v. Caverly, 7 N. H. 215. But an agent, like anyone else, may be liable for misfeasance, and an otherwise lawful act, if performed without taking proper precautions, may by reason of this omission become a misfeasance. Bell v. Josselyn, 3 Gray (Mass.) 309. Accordingly, if the injury to the plaintiff resulted from wrongfully letting the premises without repairing them, the defendant may have been rightfully held. But the court bases its decision upon the doctrine that anyone who is exercising entire control over property, in place of the owner, thereby incurs the common law obligations of an owner toward the public. Such a principle would be a striking development in the law of tort liability, for it is unwarranted by the authorities. Delaney v. Rochereau, 34 La. Ann. 1123. It is perhaps defensible, however, as a matter of policy, and it accords with language used in several similar cases. See Baird v. Shipman, 132 Ill. 16.

BANKRUPTCY · EFFECT OF NATIONAL ACT UPON STATE LAWS. Proceedings in involuntary bankruptcy under a state law were begun against a mining corporation. A judgment creditor of the corporation petitioned for a writ of prohibition to prevent the state court from assuming jurisdiction, on the ground that the state law was suspended by the national act of 1898. Held, that the writ will not issue, since the act of 1898 does not apply to mining corporations and the state law is consequently still in force as regards them. Herron Co. v. Superior Court, etc., of San Francisco, 68 Pac. Rep. 814 (Cal.).

State laws which are properly bankruptcy acts are to be distinguished from isolated statutes not forming part of any regular system of bankruptcy, although having to some extent similar objects. See 14 HARV. L. REV. 541. The latter class of laws are not suspended by the passage of a national act. Steelman v. Mattix, 36 N. J. Law 344. The former, however, according to what seems the better view, are entirely suspended as regards cases in which proceedings might be had under the national act. Ketcham v. McNamara, 72 Conn. 709. It would seem that the same result should be reached in those cases which, like the principal case, do not fall within the scope of the national act. LOWELL, BANKR., §9; contra, Shepardson's Appeal, 36 Conn. 23. The contrary view leaves the states such freedom to make new provisions concerning the commission of acts of bankruptcy and regarding other subjects upon which Congress has chosen to remain silent as practically to nullify the power of Congress "to establish uniform laws on the subject of bankruptcies," contemplated by the Federal Constitution. It is submitted that the principal decision is unfortunate as involving this result.

BANKRUPTCY PROVABLE CLAIMS - FUTURE RENT. Held, that adjudication in bankruptcy terminates the existing relation of landlord and tenant so that a claim for rent accruing after the adjudication will not be allowed though the tenant had executed promissory notes therefor. In re Hays, etc., Co., 117 Fed. Rep. 879 (Ky., Dist. Ct.). For a discussion of the principles involved, see 14 HARV. L. REV. 457.

CARRIERS REGULATION OF FARES BY MUNICIPALITY TRANSFERS. By its charter the City of Chicago was given power to regulate the charges of street railways. In pursuance of this power, §§ 1723 and 1725 of the Revised Code of the City were passed requiring street railways to issue transfers entitling passengers to ride on a connecting line of the same company without payment of an additional fare. Held, that this is a reasonable regulation and is valid. Chicago Union Traction Co. v. City of Chicago, 65 N. E. Rep. (Ill., Sup. Ct.) 451.

The legality of the ordinance was contested on two grounds: first, that the municipality had no authority to pass such an ordinance; and secondly, that it was an impairment of the obligation of a contract. The decision of the court on the first contention would seem to be correct. That a state may regulate the rates charged by common carriers is too well established to admit of question. Chicago, etc., R. R. Co. v. Iowa,