94 U. S. 155. This power the state may exercise through agents appointed by it. Chicago, etc., R. R. Co. v. Minnesota, 134 U. S. 418. It would seem to follow then that a municipality having, by direct authority of the state, power to set a maximum rate of fares, may set the rate for carriage over two lines operated by the same company, as well as over one. It is a mere incident to the latter power to require the issue of a transfer. Nor is this regulation so unreasonable as to warrant judicial interference. Chicago, etc., R. R. Co. v. Wellman, 143 U. S. 339. The precise point of the principal case, it seems, has not hitherto been decided. The question involved in the second contention has been fully discussed in 16 HARV. L. REV. 1.

CONSTITUTIONAL LAW-DUE PROCESS - SPECIAL ASSESSMENTS. - The Massa chusetts Statutes of 1867, c. 106, provide for building sewers in the city of Worcester and the assessment of the proportionate share of the cost upon "every person owning real estate upon any street, etc., or whose real estate may be benefited thereby. Held, that the statute is constitutional. Smith v. Worcester, 65 N. E. Rep. 40 (Mass.).

The statute involved in the principal case might seem to fall within the class already declared unconstitutional by the Massachusetts court because by authorizing an assessment of the entire cost of a local improvement on the estates benefited, it might cause the tax on any single estate to exceed the benefits conferred. Sorden v. Coffey, 178 Mass. 489; cf. Norwood v. Baker, 172 U. S. 269. But since it already had been declared a valid exercise of the taxing power, the court hesitated to reverse the earlier decision. Butler v. City of Worcester, 112 Mass. 541. The court therefore makes a distinction between statutes of "general future application" and those in which the legislature may be supposed to have acted in view of a specific scheme. In the former class of statutes, of which that in the principal case might seem to be one, the court would follow its latest decisions and declare them unconstitutional. But in the latter, within which the statute in question was considered to be, the statute will be supported provided the resulting assessment is not in substantial excess of the benefits conferred. The decision furnishes an indirect means for the Massachusetts court to follow the United States' decisions limiting Norwood v. Baker. French v. Barber Asphalt Paving Co., 181 U. S. 324; see 15 HARV. L. REV. 307.

CONSTITUTIONAL LAW NATURALIZATION - JAPANESE NOT ELIGIBLE TO CITIZENSHIP. A statute provides that applicants for admission to the bar shall be citizens of the United States. 2 Hill's Stat. of Wash., sec. 92. An applicant produced a certificate of naturalization from a county court, which showed him to be a native and former citizen of Japan. Held, that a Japanese is not eligible to citizenship in the United States and that the judgment of naturalization may be collaterally attacked. In re Takuji Yamashita, 70 Pac. Rep. 482 (Wash.).

The power to regulate naturalization is vested exclusively in the federal government. Const. of U. S., Art. I. sec. 8; Thurlow v. Massachusetts, 5 How. (U. S. Sup. Čt.) 504, 585. The first naturalization act provided for admission to citizenship of "free white persons," only, Act of Apr. 14, 1802, but by amendment the privilege was extended to persons of African nativity and descent. Act of July 14, 1870, c. 254, § 7. The term "white" in these acts has been generally construed to include only the Caucasian race, and accordingly Chinese, Hawaiians, Burmans, and Canadian Indians have been refused naturalization. In re Ah Yup, 5 Saw. (U. S. Circ. Ct.) 155; In re Kanaka Nian, 6 Utah, 259; In re Po, 28 N. Y. Supp. 383; In re Camille, 6 Fed. Rep. 256. On the other hand, one apparently a Mexican Indian was admitted to citizenship. In re Rod riguez, 81 Fed. Rep. 337. But this decision, if correct, might be rested upon peculiar naturalization treaties with Mexico. See Treaty, Feb. 2d, 1848. A statute passed in 1882, U. S. Comp. St. 1901, sec. 2169, forbidding the naturalization of Chinese has been considered as merely declaratory of existing law. In re Po, supra. The conclusion in the principal case seems therefore correct. It is sustained by the only decision found upon the exact point. In re Saito, 62 Fed. Rep. 126. Since the naturalization record showed that upon the facts found the county court had no right to grant the certificate, a collateral attack upon this judgment void on its face was rightly allowed. In re Hong Yen Chang, 84 Cal. 163; In re Gee Hoop, 71 Fed. Rep. 274.

CONSTITUTIONAL LAW PRESIDENT'S PARDONING POWER FOR CONTEMPT OF FEDERAL COURT. Two county judges were committed for contempt for disobeying a writ of mandamus from a circuit court ordering them to levy a certain tax for payThey sought a writ of habeas corpus, pending a petition to the Held, that the President has no power to pardon, and thereIn re Nevitt, 117 Fed. Rep 448 (Č. C. A., Eighth Circ.). See

ment of a judgment. President for pardon. fore the writ is denied. NOTES, p. 291.

CONSTITUTIONAL LAW - SPECIAL PRIVILEGES - EXCEPTION OF LABOR UNION FROM LAW AGAINST COMBINATIONS. A Nebraska statute, Comp. St. 1901, c. 91 a, making combinations in restraint of trade illegal, expressly excepted labor unions from its operation. Held, that the statute does not violate the provision of the state constitution, forbidding the grant of a special privilege or immunity. Cleland v. Anderson, 92 N. W. Rep. 306 (Neb.).

The exception from the operation of a statute of certain members of the class dealt with does not, ipso facto, render the statute unconstitutional. The test is whether there is a reasonable need, based upon public welfare, for a different treatment of the members excepted. Am. Sugar Refining Co. v. Louisiana, 179 U. S. 89; Magoun v. Ill. Savings Bank, 170 U. S. 283. The growing favor with which the law has come to regard combinations of labor, tends to show the reasonableness of the exception made by the Nebraska statute. At common law combinations of laborers to raise wages, were by early decisions held illegal along with other combinations in restraint of trade. The King v. Journeymen-Taylors, 8 Mod. 11; People v. Fisher, 14 Wend. (N. Y.) 9. But of late years this form of combination has been considered less harmful. Strikes were declared lawful in England by statute, 34 & 35 Vict. c. 32, and in this country by the courts themselves. Commonwealth v. Hunt, 4 Met. (Mass.) 111; see Curran v. Galen, 152 N. Y. 33. Moreover, the action of the legislature, as indicative of public need, should be given great weight. It would seem, therefore, an unusually strong case for the application of the rule that a statute should be held constitutional unless it is clearly bad. See COOLEY, PRIN. CONST. L. 159. It is interesting to note that this same statute was held by the Federal Circuit Court to contravene the Fourteenth Amendment. Niagara Ins. Co. v. Cornell, 110 Fed. Rep. 816.

- MEASURE OF Damages.

CONTRACTS - PAYMENT FOR LAND BY INSTALLMENTS -The defendant contracted to purchase certain lots from the plaintiff and to pay for them by installments. After the last installment had fallen due the plaintiff brought an action for the full contract price but without tendering a deed of the land. Held, that the plaintiff could recover all except the last installment. Gray v. Meek, 64 N. E. Rep. 1020 (Ill., Sup. Ct.).

Where several installments are due under a contract they constitute ordinarily but one indivisible cause of action. Barrett v. Belfy, 47 Conn. 323; Reformed, etc., Church v. Brown, 54 Barb. (N. Y.) 191; Jarrett v. Self, 90 N. C. 478. But in the principal case the failure of the plaintiff to tender a deed of the land constituted a defense for the failure to pay the last installment which did not exist for the prior defaults. Under these circumstances the Illinois courts hold that the plaintiff may waive his right to the last installment and collect the others. Duncan v. Charles, 5 Ill. 561. But the more general and better doctrine seems to be that if the plaintiff has not a good right of action for all the installments due in point of time he has no right of action for any. Beecher v. Conradt, 3 Kernan (N. Y.) 108; McCroskey v. Ladd, 96 Cal. 455. The Illinois doctrine would seem to grant the vendor practically specific performance at law. Much the same result is reached, on the other doctrine, when the deed has been tendered. Richards v. Edick, 17 Barb. (N. Y.) 260, 264. Both results seem unfortunate. A better view would seem to be that where there has been a material breach, the vendor can sue only for such breach. Then, whether the deed has been tendered, or this is excused by the vendee's breach, the damages should be only the difference between the contract price and the market value of the land. See Griswold v. Sabin, 51 N. H. 167; Hogan v. Kyle, 7 Wash. 595.

CONTRACTS - RESCISSION - LOSS OF THE RIGHT BY NEGLIGENCE. P signed an application for an insurance policy in the belief, induced by the fraud of the company's agent, that it called for a policy different from that for which it really called. P received the policy designated in the application and paid the first premium. Four months later, upon examining the policy for the first time, he discovered the fraud. Held, that because of unreasonable delay P cannot rescind the contract and the plaintiff, his assignee, cannot recover any part of the premium paid. Bostwick v. Ins. Co., 92 N. W. Rep. 246 (Wis.).

The right to rescind because of fraud, being strictly an equitable right, is lost by acquiescence for an unreasonable length of time. Cox v. Montgomery, 36 Ill. 396; see Norris v. Haggin, 136 U. S. 386, 391; POLLOCK, CONT., 7th ed., 590-592. There can, however, be no acquiescence in the strict sense until there is knowledge of the fraud. Hence, ordinarily, mere delay without such knowledge does not preclude the right to rescind. Pence v. Langdon, 99 U. S. 578; Lindsay, etc., Co. v. Hurd, L. R. 5 P. C. 221, 241. But when in a business transaction like that of the principal case, the defrauded party has negligently failed to open his eyes to that which he should readily have discovered, sound policy would seem to require that mere ignorance of the fraud be regarded as

immaterial. See Pence v. Langdon, supra, 581. Obviously the case would not have fallen within this principle had fraud been exercised at the time of delivering the policy so as to throw the insured off his guard. This was so held in a recent case before the same court. Bostwick v. Ins. Co., 92 N. W. Rep. 246. In short, it is a question of fact whether under all the circumstances the defrauded party was inexcusably negligent. Thus the principal case appears sound on principle; and such authorities as have been found are in accord. Nat. Bank v. Taylor, 5 S. Ďak. 99, 111; see McMaster v. Ins. Co., 87 Fed. Rep. 63.

CORPORATIONS

TORS.

- RIGHT OF DIRECTORS TO PREFER THEMSELVES AS CREDI- The directors of a corporation were sureties on corporate debts. With the knowledge that the corporation was insolvent they transferred the entire corporate property to a trustee for payment of said debts. Held, that the conveyance will not be set aside as in fraud of creditors in a suit by one of them. Nappannée Canning Co. v. Reid Murdock & Co., 64 N. E. Rep. 870, dissenting opinion 1115 (Ind., Sup. Ct.). For a discussion of the contrary decision of this case in the lower court, see 15 HARV. L. REV. 409.

CRIMINAL LAW - NEGLIGENT MANSLAUGHTER - FAILURE TO GUARD RAILROAD CROSSING.-Through the negligence of the defendant, a gate-keeper at a railroad crossing, in failing to close the gates a pedestrian was killed by a passing train. Held, that the defendant is guilty of manslaughter. Rex v. Pitwood, 19 T. L. R. 37 (Eng.). See NOTES, p. 297.

DAMAGES · CONTRACT FOR THE SALE OF REALTY WILFUL DEFAULT BY VENDOR. The vendor in a contract for the sale of realty refused to perform on the ground that she had made a poor bargain. Held, that the vendee, in an action for the breach, can recover only the purchase money actually paid, with interest. Stuart v. Pennis, 42 S. E. Rep. 667 (Va.).

Damages for the breach of a contract for the sale of realty, when this is due to the owner's non-culpable inability to convey clear title, are limited to the purchase money paid, with interest. Flureau v. Thornhill, 2 W. Bl. 1078; Baldwin v. Munn, 2 Wend. (N. Y.) 399. The rule, however, is restricted to cases of failure of title, where this limitation of damages may be sustained by reasons analogous to those for the defense of impossibility in an ordinary action on the contract. See SEDG. DAM., 8th ed., § 1006. But where the breach is wilful, there is no reason for reducing the damages, and full compensation is allowed. Western R. R. v. Babcock, 6 Met. (Mass.) 346; Barbour v. Nichols, 3 R. I. 187; Allen v. Atkinson, 21 Mich. 351. Nor is the principal case supported by the decisions of its own jurisdiction, for the authority cited as extending the rule in Virginia is, in so far as it is in point, confined to cases of failure of title, and two decisions tend to establish the proper rule of damages. Wilson v. Spencer, 11 Leigh (Va.) 261; Newbrough v. Walker, 8 Gratt. (Va.) 16.

DAMAGES - STIPULATED DAMAGES WHEN ENFORCED. - The defendant contracted with the plaintiff to allow him the exclusive right of selling its pianos in St. Louis, and to pay him one hundred dollars for each and every breach of such agreement. Held, that, since the stipulated damages are not excessive and the actuai damage cannot be measured with approximate certainty, the stipulated damages will be enforced. Menges v. Milton Piano Co., 70 S. W. Rep. 250 (Mo. App.).

The expressed intention of the parties will in general govern in determining whether the stipulated sum is to be construed as a penalty, when it is unenforceable, or as liquidated damages. Monmouth Park Assn. v. Wallis Iron Works, 55 N. J. Law 132, 140. The fact that the actual damage is incapable of approximate measurement has been a factor in determining the courts to give effect to the stipulated damages. Streeper v. Williams, 48 Pa. St. 450; Wooster v. Kisch, 26 Hun (N. Y.) 61. But in no case will the fundamental principle that what is sought is compensation only be violated. Myer v. Hart, 40 Mich. 517, 523; Frank v. Block, 9 N. Y. St. 101. The decision of the principal case therefore seems to be sound on principle and in accord with the authorities. Streeper v. Williams, supra; Jones v. Binjord, 74 Me. 439. A similar but distinct class of cases is found where a party contracts in the alternative to do a certain act or to pay a certain sum at his option. In these cases a failure to do the act is construed as an election to pay the sum stipulated, and payment will be enforced. Pearson v. Williams' Admrs., 24 Wend. (N. Y.) 244, affirmed 26 Wend. (N. Y.) 630; see Penn. R. R. Co. v. Reichert, 58 Md. 261.

DAMAGES -TRANSPORTATION BY SEA · MEASURE OF DAMAGES FOR DELAY. Goods were shipped by steam vessel from New York to South Africa. Through the negligence of the shipowner the vessel was seized and detained. When finally re

leased there was no market for the goods. Held, that the measure of damages to which the owner of the goods was entitled was the difference between the market value of the goods at the time when they ought to have been delivered and the market value at the time they were in fact delivered. Dunn v. Bucknall Brothers, 51 W. R. 102 (Eng., C. A.).

It is generally law that in a suit against a carrier for delay in delivery of freight anticipated profits cannot be recovered. Hadley v. Baxendale, 9 Ex. 341. It has, however, been held, both in England and in the United States, that damages for loss in market value through delay may be obtained from a carrier by land. Collard v. S. E. R. R. Co., 7 H. & N. 79; Cutting v. Grand Trunk R. R. Co., 13 Allen (Mass.) 381. The reason for allowing such damages is that the market value of the goods at the time when they should have been delivered is the value of which the consignee is deprived by the breach of contract. See SEDG. DAM., 8th ed., § 753. On the ground that the precise time of arrival of goods shipped by sea cannot be ascertained, the only two cases precisely in point that have been found, hold that damages for loss of market value cannot be obtained from a carrier by sea. The Parana, 2 P. D. 118; The Notting Hill, 9 P. D. 105. These cases have been cited as law. See CARVER, CARRIAGE BY SEA, 3rd ed., § 726. They have, however, been adversely criticised. See SEDGWICK, supra, § 855. Since at the present time sea carriage can be accomplished with as great a degree of certainty as land carriage, there would seem to be no reason why the same rule of damages should not be applied. The principal case is therefore to be commended for bringing about this desirable uniformity.

EQUITY SPECIFIC PERFORMANCE CONTRACT TO BUILD AND MAINTAIN RAILROAD STATION. - The plaintiff conveyed land to the defendant in consideration of the latter's agreement to build and maintain a railroad station thereon. Held, that the court will give specific performance of the contract, although it is a contract to build, and involves the performance of continuous acts. Murray v. Northwestern R. R. Co., 42 S. E. Rep. 617 (S. C.). See NOTES, p. 293.

EVIDENCE-ADMISSIONS-Statement BY CO-DEVISEE. ·

Several devisees un

der the same will offered it for probate. To prove the incompetency of the testator an admission by one of the co-devisees was offered. Held, that this evidence is admissible. Gibson v. Sutton, 70 S. W. Rep. 188 (Ky.).

An admission of the testator's incapacity by a sole devisee or legatee is unquestionably admissible. See In re Baird, 47 Hun (N. Y.) 77, 78; McMillan v. Mc Dill, 110 Ill. 47, 50. Where, as in the principal case, other devisees are parties to the record such evidence would have almost as great, if not equal, probative force. But according to the great weight of authority, it is excluded. In re Baird, supra; Hauberger v. Root, 6 W. & S. (Pa.) 431. These cases apply the general principle that mere community of interest is insufficient to render the admission of one party competent as evidence against another, even though a party to the same record. See In re Baird, supra; I GREENL. Ev., 16th ed., § 176. Where, on the other hand, there is an identity of interest between the parties such as that of partnership, such evidence is clearly admissible. Cady v. Shepherd, 11 Pick. (Mass.) 400, 407. The few authorities supporting the principal case are comparatively early cases. Brown v. Moore, 6 Serg. (Tenn.) 272; Beall v. Cunningham, i B. Mon. (Ky.) 399. The Kentucky decision just cited went partly on the ground that at that time no party to the record could be called as a witness. This rule no longer prevails. See Milton v. Hunter, 13 Bush (Ky.) 163, 168. Since, therefore, the co-devisee may now be called upon to testify directly, the court would, it seems, have been justified in departing from a rule which, as they apparently recognized, is opposed to both principle and authority.

EVIDENCE - Affidavit of JURORS AS TO PROCEEDINGS IN THE JURY ROOM ATTACK ON VERDICT. - On an appeal, the plaintiff in error offered in evidence affidavits of a juror, that the foreman had made, in the jury room, from his own knowledge, statements not given before the court, and bearing on a material issue. Held, that the affidavits are not admissible. St. Louis, etc., Ry. Co. v. Ricketts, 70 S. W. Rep. 315 (Tex., Civ. App.).

It is a well recognized doctrine, that, in order to insure perfect freedom of discussion, testimony in regard to proceedings in the jury room should generally be excluded. Woodward v. Leavitt, 107 Mass. 453. But to exclude evidence of improper conduct such as in the principal case seems to go beyond the reason of the rule, though one case exactly in accord has been found. Price v. Warren, 1 Hen. & M. (Va.) 385; contra, State v. Burton, 70 Pac. Rep. 640 (Kan.). Many courts have protected even greater improprieties. See Clum v. Smith, 5 Hill (N. Y.) 560; Boetge v. Landa, 22 Tex. 105.

Such extensions, however, seem opposed to principles of justice, which would demand rather that the rule be closely restricted. There is another rule excluding evidence of the mental state of a juror, such as misunderstanding of instructions, improper motives, etc., as too difficult to disprove. Mattox v. United States, 146 U. S. 140. Some cases seem to treat this as the only rule of exclusion, and so confusion is caused, but they plainly do not involve the question in the principal case.

EVIDENCE-SELF-INCRIMINATION EXAMINATION BY ORDER OF COURT.— A prisoner charged with rape was examined by physicians against his consent. Held, that the testimony of the physicians who made the examination was wrongfully admitted by the trial court. State v. Height, 91 N. W. Rep. 935 (Ia.). See NOTES, p. 300.

FRAUDULENT CONVEYANCES

CONSIDERATION - DISCONTINUANCE OF DIVORCE PROCEEDINGS. - A husband, while insolvent, conveyed property to his wife, in consideration of her discontinuing divorce proceedings then pending. Held, that the conveyance could be set aside by creditors of the husband, for want of sufficient consideration. Oppenheimer v. Collins, 91 N. W. Rep. 690 (Wis.).

A discontinuance of divorce proceedings is good consideration for a contract. Phillips v. Meyers, 82 Ill. 67. Inadequacy of consideration is immaterial, even where third parties are interested, except as evidence of fraud. Bayspoole v. Collins, L. R. 6 Ch. 228. Whether such a conveyance as that in the principal case should be set aside, without requiring further proof of fraud, must therefore be a question of policy alone. The point seems to be new. The court argues, that transactions of this sort if sustained would offer too great an opportunity for defrauding creditors, by the institution and discontinuance of collusive divorce proceedings. On the other hand, the rule of the court would often impose an unjust hardship upon the wife, and moreover the law favors agreements for a continuance of the marital relation. See Adams v. Adams, 91 N. Y. 381. The difficulty suggested by the court might be met perhaps with more justice to all concerned, if the circumstances were regarded as merely raising a presumption of fraud, requiring evidence of good faith from the wife.

JUDGMENTS MERGER BY SECOND JUDGMENT LOSS OF PRIORITIES. — X obtained a judgment constituting a lien on the judgment debtor's property; Z shortly thereafter also recovered judgment. Seven years later X brought an action on his judgment, and obtained a new judgment. Held, that the first judgment obtained by X is not merged in the second so as to destroy the priority of the first. Springs v. Pharr, 42 S. E. Rep. 590 (N. C.).

The decision in the principal case is in accord with previous North Carolina_decisions. Carter v. Coleman, 34 N. C. 274; McLean v. McLean, 90 N. C. 530. It is rested on the old theory of merger by judgment, that a security of a higher nature extinguishes inferior securities, but not securities of equal degree. Cf. Andrews v. Smith, 9 Wend. 53. That theory explains the rule that a judgment obtained in a court of a foreign nation is not a merger of the original cause of action in the home forum; but it does not explain the rule that a judgment recovered in one of the United States merges the original cause of action in all the others. Cf. Bank of Australasia v. Nias, 16 Q. B. 717; New York, etc., R. R. Co. v. McHenry, 107 Fed. Rep. 414; Harrington v. Harrington, 154 Mass. 517. The true theory is that it is a policy of law to discourage superfluous and vexatious suits by causing a prior judgment to be merged in a second and rights under the former lost. See FREEMAN, JUDGM., 4th ed., § 215. Thus a foreign judgment is not merged, because the suit is not vexatious but for additional relief; but a judgment in one of the United States is merged in a judgment in another, because the second is vexatious and superfluous owing to Art. IV. sec. 1. of the Constitution. On the theory submitted the decision in the principal case is objectionable, unless the suit was a formal one to revive or renew the old judgment, in which case it ought to have been commenced by a scire facias. See BLACK, JUDGM., § 482 a.

A railroad

MUNICIPAL CORPORATIONS RIGHT TO EXCLUSIVE USE OF NAME. company established a new station, giving it the name already borne by a town situ ated near by upon the same railroad. The resulting confusion caused inconvenience to passengers and to shippers. The town filed a bill to restrain the railroad company from applying this name to the new station. Held, that the bill is not maintainable. Gulf & Ship Island R. R. Co. v. Town of Seminary, 32 So. Rep. 953 (Miss.).

The law does not, as a general principle, recognize exclusive rights in a name, except in cases of trademark. See Du Boulay v. Du Boulay, L. R. 2 P. C. 430; New York, etc., Co. v. Coplay Cement Co., 45 Fed. Rep. 212. Equity will, however, restrain the use of another's name in business competition in such a way as to mislead the public. Croft v. Day, 7 Beav. 84; Saxlehner v. Apollinaris Co., [1897] Ch. 893. Such