CONFLICT OF LAWS-SIMULTANEOUS CONFLICTING JUDGMENTS IN STAte and FEDERAL COURTS CLAIM AGAINST FEDERAL RECEIVER. A decree of a federal court in a petition by the bondholders of a railroad for a receivership, placed certain tort claims in a preferential class, provided they should be established as valid demands. The plaintiff had already begun in a state court an action on such a claim. She also filed the same claim, by intervention, in the federal court. Judgments were given on the same day, against the plaintiff in the federal court, and in her favor in the state court. She then filed a second petition for intervention, asking priority for the claim thus established in the state court. Held, that her petition will not be granted. Goodwin v. Atcheson, etc., R. R. Co., 118 Fed. Rep. 403 (C. C. A., Eighth Circ.).

Where two conflicting valid judgments are rendered on the same cause of action, by different courts of concurrent jurisdiction, with no common court of appeal, and neither judgment can be shown to have preceded the other, a problem arises, which seems incapable of solution. One party has a legal right to which the other has an equally valid bar. The difficulty results from our system of state and federal courts, and that system provides no solution. The common law apparently furnishes no analogies, and no case in point has been found. The decision in the principal case, however, seems sound, for the decree of priority is merely a direction to the receiver, and vests no absolute rights in a claimant, even when he has proved his claim. See Louisville, etc., R. R. Co. v. Wilson, 138 U. S. 501, 506. When a court may refuse priority to any claim, this power may well be exercised against a claim which that court itself has found invalid.

CONSTITUTIONAL LAW - EMINENT DOMAIN DAMAGE TO NON-ABUTTING LAND. A statute provides that a railroad company shall pay all damages occasioned by laying out its road. Pub. St. Mass., c. 112, § 95. A railroad company in changing the grade of a street at a point not adjacent to the plaintiff's land, which was situated on a cul-de-sac, rendered the latter's premises inaccessible to teams for a period of several months. Held, that the plaintiff can recover the damages thereby sustained. Putnam v. Boston & P. R. R. Corp., 65 N. E. Rep. 790 (Mass.).

Under such statutory or constitutional provisions, if a public highway is vacated or altered to the detriment of the abutting land, the owner thereof suffers special and peculiar damage for which he can recover. Parker v. B. & M. R. R. Co., 3 Cush. (Mass.) 107; see Caledonian R. R. Co. v. Walker's Trustees, L. R. 7 App. Cas. 259. When, however, such a change materially diminishes the value of non-abutting land in the vicinity by rendering access thereto more difficult, Massachusetts and a number of other jurisdictions deny the right to recover damages. Davis v. Co. Com'rs, 153 Mass. 218; Rude v. St. Louis, 93 Mo. 408. Contra, Rigney v. Chicago, 102 Ill. 64. The main argument advanced in support of the Massachusetts rule is that the inconvenience to owners of non-abutting land in the vicinity is the same in kind, though not in degree, as that experienced by the general public. See Smith v. Boston, 7 Cush. (Mass.) 254. This position seems untenable; for such an owner sustains in addition the loss due to the depreciation in the value of his land. Even according to the Massachusetts test, however, the principal case, which is one of first impression in that jurisdiction, seems rightly decided. The damage suffered by the plaintiff was special and peculiar," and hence actionable, since access to his land via the public street was entirely prevented. Brakken v. Minn., etc., R. R. Co., 29 Minn. 41; see also Smith v. Boston, supra, 257; Davis v. Co. Com'rs, supra, 223.

CONTRACTS - ERRONEOUS Offer — LIABILITY OF TELEGRAPH COMPANY. - By an error due to the negligent transmission of a telegraph message the plaintiff was represented as offering oranges at a rate considerably below the market price. The addressee, though believing the message was erroneous, ordered two carloads. The plaintiff supposing his offer had been properly communicated sent the oranges to the addressee. The latter refused to pay a higher price than that stated in the telegram. Held, that the plaintiff cannot recover from the telegraph company the difference between the market price and that stated in the telegram. Germain Fruit Co. v. Western Union Tel. Co., 70 Pac. Rep. 658 (Cal.).

Had the addressee without suspecting any error accepted the offer as conveyed to him, such acceptance would, according to the better view, have rendered the plaintiff liable to supply the oranges at the rate stated in the telegram. Ayer v. Western Union Tel. Co., 79 Me. 493; contra, Pepper v. Tel. Co., 87 Tenn. 554. In such a case the telegraph company would clearly be liable to the plaintiff for the loss suffered. Ayer v. Western Union Tel. Co., supra; The Western Union Tel. Co. v. Shotter, 71 Ga. 760. In the principal case, however, since the addressee believed the price quoted was due to error, there was in fact no offer for a contract; and hence no contract was completed by what

purported to be the addressee's acceptance. Consequently the latter was, as the court states, liable for the full value of the oranges ordered by him in bad faith. See Ayer v. Western Union Tel. Co., supra, 499. If the plaintiff failed to collect the full amount from him, this was due not to any negligence of the defendant but to the independent wrong of the fraudulent addressee. As, therefore, no damage resulted to the plaintiff from the defendant's negligence, the decision appears sound.

ON CON

CONTRACTS - RIGHTS OF BENEFICIARY - SUIT BY MATERIALMEN TRACTOR'S BOND TO CITY. - A surety company had given a bond to a city, conditioned on the full performance of a contract by which a contractor agreed to do certain work for the city, and to pay his laborers and materialmen in full. Held, that unpaid materialmen are beneficiaries and proper parties to a suit on the bond. Town of Gastonia v. McEntee-Peterson Co., 42 S. E. Rep. 858 (N. C.).

In an action by the contractor, on a contract similar to the above, the city had failed to set up the non-payment by the contractor of claims of materialmen. Held, that the latter are not beneficiaries, and are barred from suit in the name of the city against the sureties on the contractor's bond. City of Lancaster v. Frescoln, 53 Atl. Rep. 508 (Pa.).

The right of a third party to sue upon a contract, when it is clearly made for his benefit, is recognized in both jurisdictions. Gorrell v. Water Supply Co., 124 N. C. 328; Merriman v. Moore, 90 Pa. St. 78. The right of the materialmen to sue would seem therefore to be, in both of the principal cases, solely dependent on whether the clause in question was in fact intended for their benefit. The city's sole motive in inserting such a clause might be to secure efficient workmanship upon its buildings. A sounder view, however, would seem to be that the city wished to protect workmen and materialmen, who are usually its own citizens. Numerous statutes, and more specific provisions in bonds of a similar nature, show that such protection is customary and contemplated. See City of Phila. v. Stewart, 195 Pa. St. 309. Accordingly what few authorities there are, exactly in point, seem to support the North Carolina decision. Lyman v. City of Lincoln, 38 Neb. 794; King v. Downey, 24 Ind. App. 262. Neither case notices the doctrine which excludes sealed contracts from the usual rule. Harms v. McCormick, 132 Ill. 104.

CORPORATIONS-DE FACTO CORPORATION - INCORPORATION ACT SUBSEQUENT TO ATTEMPT TO ORGANIZE. An attempt was made to organize a banking corporation at a time when there was no statute authorizing it. Later the necessary statute was passed, but the bank took no steps to comply with the law, though continuing to hold itself out as incorporated. Held, that the bank is a de facto corporation. State v. Stevens, 92 N. W. Rep. 420 (S. Dak.); Mason v. Stevens, ibid. 424. See NOTES, p. 362.

CORPORATIONS-DUTY OF OFFICERS AND STOCKHOLDERS

SALE OF INFLUENCE. The plaintiff made a contract with the defendants, who were stockholders in a corporation, whereby he agreed to buy part of their stock and to use his influence in the corporation for the re-election of the existing board of directors, in consideration of their promise to procure for him a position as cashier of the corporation for five years, and to repurchase the stock at a fixed price when he should cease to be cashier. After the wrongful discharge of the plaintiff, the defendants refused to buy back his stock, and the plaintiff sued on the contract. Held, that the contract is not void as against public policy and that the plaintiff can recover. Bonta v. Gridley et al., 78 N. Y. Supp. 961 (App. Div. 4th Dept.). See NOTES, p. 366.

CORPORATIONS

STATUTORY LIABILITY OF STOCKHOLDERS RIGHT TO SET-OFF CLAIM AGAINST CORPORAtion. The charter of a bank provided that stockholders should be liable for the debts of the bank, to the amount of their shares. In an action by a creditor of the bank the defendant, a stockholder, pleaded by way of set-off a claim against the bank. Held, that he may set this off. Strauss v. Ďenny, 53 Atl. Rep. (Md.) 571. See NOTES, p. 364.

CORPORATIONS - STATUTORY REGISTRATION BY FOREIGN CORPORATION - RECOVERY ON CONTRACT MADE BEFORE REGISTRATION. —A Pennsylvania statute makes it unlawful for a foreign corporation to do business in the state before registering, and imposes a money penalty for doing so. The plaintiff, a New Jersey corporation, not having registered, built an electric railway for the defendant. It later registered and sued on a quantum meruit. Held, that the plaintiff cannot recover. Delaware River, etc., Co. v. Bethlehem, etc., Ry. Co., 53 Atl. Rep. 533 (Pa.).

Under similar statutes in some jurisdictions the corporation may have its contracts enforced without registering at all, on the ground that the legislature intended to make the money penalty imposed exclusive of other penalties. Union, etc., Ins. Co. v. McMillen, 24 Oh. St. 67; Dearborn Foundry Co. v. Augustine, 5 Wash. 67. The better view, however, supported by the majority of courts, is that it cannot. Dudley v. Collier, 87 Ala. 431; Cincinnati, etc., Co. v. Rosenthal, 55 Ill. 85. The ground of the Illinois decision is that the legislature intended, as a means of preventing the prohibited act, that the plaintiff should have no standing in court to enforce a contract arising from it. This construction, however, seems strained in view of the money penalty imposed. See MoR. PRI. CORP. § 665; TAYLOR, CORP. § 401. But the Alabama and Pennsylvania cases go on the broader and more tenable ground that the court will not aid a plaintiff who, to prove his case, must allege his own illegal act. This principle seems especially appli cable here, where the creation of the obligation is the illegal act. Obviously, according to neither line of reasoning, can the subsequent compliance with the provisions of the statute help the plaintiff's case. Association v. Berlin, 15 Pa. Super. Ct. 400.

CRIMINAL LAW-HOмicide - SIMULTANEOUS MORTAL WOUNDS. — In a trial for homicide the court instructed that if the jury found that the defendant had inflicted mortal wounds on the deceased, they must convict, although other mortal wounds were inflicted by a person acting independently. Held, that the instruction is erroneous. Walker v. State, 42 S. E. Rep. 787 (Ga.).

A death may result from the joint contribution of wounds inflicted by separate parties. When this is the case, either may be responsible for the death if he is proved to have had the requisite intent. See People v. Lewis, 124 Cal. 551. But it is also possible that even after the infliction of a mortal wound, causal connection may be broken by the intervention of an independent agent, who will become solely responsible for the death. State v. Scates, 5 Jones (N. C.) 420. The principal case is the only instance found where the question of causal connection was presented when wounds had been inflicted simultaneously by assailants not in concert. It is entirely possible that the mortal wound inflicted by the accused would have proved fatal only after an interval, while the wound inflicted by the other person killed instantaneously. In this event the latter person should be considered solely responsible for the death, and the accused could not properly be convicted of homicide. In overlooking this possibility the instructions were erroneous.

EQUITY INJUNCTION — RIGHT TO PROTECTION FROM THE SEA BY Natural BARRIER. The defendant was removing sand from his land in the natural use thereof. With the natural barrier destroyed, the sea would wash away the land of an intervening owner, and then that of the plaintiff. The plaintiff applied for an injunction on the ground that the defendant would cause him irreparable injury. Held, that the injunc tion will lie. Murray v. Pannaci, 53 Atl. Rep. 595 (N. J., Ch.).

The decision is placed on the ground that if the defendant brought the sea onto his land he would be liable for damages caused by its escape onto the land of the plaintiff. This seems an unwarranted application of the doctrine of Fletcher v. Rylands, although it finds some support. Mears v. Dole, 135 Mass. 508. But it is an established principle that there is a right to protection from the sea by natural barriers. Where the plaintiff's land adjoins that of the defendant, an injunction will lie to prevent the removal of the shingle, when that would result in injury to the plaintiff. AttorneyGeneral v. Tomline, L. R. 14 Ch. D. 58. In the analogous case of lateral support, it is held that the existence of an intermediate strip of land is immaterial, if the land of the defendant is in the zone of support. Birmingham v. Allen, L. R. 6 Ch. D. 284; Keat ing v. Cincinnati, 38 Oh. St. 141. There seems to be no reason why the right to protection from the sea should not be extended in a similar manner, thus affording a logical basis for the desirable result of the principal case.

EQUITY INJUNCTION AGAINST SEPARATE SUITS.—The plaintiff applied for an injunction against twenty-one persons owning land adjoining the plaintiff's sulphur works, to prevent them from bringing separate suits for injuries to their several parcels of land, caused by fumes from the plaintiff's plant. Held, that no such community of interest exists among the defendants as will authorize an injunction. Ducktown Sulphur, etc., Co. v. Fain, 70 S. W. Rep. 813 (Tenn.). For a discussion of the principles involved, see 14 HARV. L. REV. 611.

EQUITY PURCHASE FOR VALUE WITHOUT NOTICE-ASSIGNMENT OF JUDGMENT THROUGH FRAUD.-The plaintiff, the obligee of a judgment, was fraudulently induced to assign the same. His fraudulent assignee in turn assigned to the defend

ant, who gave value, without notice of the plaintiff's equities. On discovery of the fraud the plaintiff filed a bill to have both assignments set aside. Held, that the defendant took free from the equities of the plaintiff. Luecht v. Pearson, 65 N. E. Rep. 363 (Ill., Sup. Ct.). This decision reverses the holding of the lower court, for a discussion of which see 16 HARV. L. REV. 66.

EVIDENCE-TESTIMONY AT FORMER TRIAL-WITNESS ABSENT FROM JURISDICTION.-Held, that the official stenographic report of the testimony of a witness at a former trial of the same action is admissible in evidence, where the witness is permanently absent from the jurisdiction, although no effort has been made to find him. McGovern v. Smith, 53 Atl. Rep. 326 (Vt.).

It is a generally recognized exception to the rule against hearsay that evidence given at a former trial of the same action may, under certain circumstances, be admitted. In England it seems that the witness must be dead, insane, or kept away by the procurement of the opposite party. See Regina v. Scaife, 17 Q. B. 238. In America the courts are generally more lenient, but the decisions are conflicting. Inability to find the witness has been held enough. Thompson v. State, 106 Ala. 67; contra, Crary v. Sprague, 12 Wend. (N. Y.) 45. The same is true of illness of the witness. Howard v. Patrick, 38 Mich. 799; contra, Commonwealth v. McKenna, 158 Mass. 207. The evidence is also admitted by the weight of authority in circumstances like those of the principal case. Giberson v. Mills Co., 187 Pa. St. 513; contra, Berney v. Mitchell, 34 N. J. Law 341. This rule seems reasonable, for such evidence is more practicable than its alternative, a deposition, is less expensive, and, in general, serves the ends of justice quite as well. The witness has testified in open court, subject to cross-examination, and the correctness of the record is undoubted. In criminal cases it may be held that the accused is denied his constitutional right of facing the witnesses against him. Finn v. Commonwealth, 5 Rand. (Va.) 708; contra, People v. Devine, 46 Cal. 45. But this objection can, of course, have no force in civil suits.

FRAUDULENT CONVEYANCES-RIGHTS OF EXECUTION PURCHASER- Statute OF LIMITATION. - The plaintiff bought at an execution sale land which had been conveyed in fraud of creditors and levied on to satisfy a judgment against the fraudulent grantor. After the lapse of the statutory period for setting aside fraudulent conveyances, but before the time necessary to acquire title by adverse possession had run, the plaintiff brought ejectment against the defendant, who had bought the land from the fraudulent grantee, with knowledge of the fraud. Held, that the plaintiff's right is barred by lapse of time, since he acquired a mere equity to have the fraudulent conveyance set aside. Brasie v. Minneapolis Brewing Co., 92 N. W. Rep. 340 (Minn.).

Property conveyed in fraud of creditors may be seized in the hands of the fraudulent grantee, as though no conveyance had been made, and sold on execution as the property of the grantor. Thomason v. Neeley, 50 Miss. 310; Owen v. Dixon, 17 Conn. 492. The execution purchaser may succeed in ejectment against the fraudulent grantee, provided he can show on the trial that the grantee's conveyance was fraudulent. Mulford v. Peterson, 35 N. J. Law 127, 132. It follows that the execution purchaser has a perfect legal title, subject to the burden of proving the conveyance fraudulent, if the grantee asserts its validity. Thompson v. Barker, 141 U. S. 648, 655; see FREEMAN, EXECUTIONS, § 136. The decision of the Minnesota court is contrary to authority, and incompatible with well settled views as to the nature of the rights at law to fraudulently conveyed property. It leads to this incongruity: an execution purchaser may succeed in ejectment, if he brings his action within the statutory period, as the Minnesota court admits, although at the time he comes into court it is asserted that he has a mere equity to have the title of the fraudulent grantee set aside.

INSURANCE CONSTRUCTIVE TOTAL LOSS MARINE POLICIES FREE OF PARTICULAR AVERAGE. - By a policy of marine insurance a cargo of fruit and vegetables shipped by canal boat was warranted free of particular average. The canal boat was sunk; and there was a constructive total loss. Held, that the insured may recover on the policy. Devitt v. Providence, etc., Ins. Co., 173 N. Y.

17.

When a cargo is warranted free of particular average, the insurer is not liable for less than a total loss. See ARNOULD, MARINE INS., 7th ed. § 884. This, however, in marine insurance may be either absolute or constructive. Roux v. Salvador, 3 Bing. N. C. 286. But there is a conflict whether a constructive total loss is insured against when there is a warranty free of particular average, especially when as in the principal case the warranty is applied to "memorandum or perishable articles. In England, in all cases, a constructive total loss is as much within an insurance policy as an abso

lute total loss. Adams v. McKenzie, 13 C. B. N. s. 422; Sailing Ship Blaimore Co. v. Mac Kredie, [1898] A. C. 593. In the United States, however, the law is in confusion. A few decisions are in accord with the entire English doctrine. Poole v. Protection Ins. Co., 14 Conn. 47. Other courts agree in part, but have not decided whether the doctrine applies when the insurance is on memorandum articles. Mayo v. India Mut. Ins. Co., 152 Mass. 172. In the United States Supreme Court, in the case of non-perishable goods there must be either a total loss of value or an absolute total loss. Ins. Co. v. Fogarty, 19 Wall. 640. But insurance on memorandum articles cannot be recovered if the articles continue to exist in specie. Washburn, etc., Co. v. Reliance Marine Ins. Co., 179 U. S. 1. The decision in the principal case, bringing New York squarely into line with England, marks the tendency toward relaxing the law in favor of the insured. Cf. Cocking v. Fraser, 4 Doug. 295; McGrath v. Church, 1 Cai. Cas. 195; Chadsey v. Guion, 97 N. Y. 333.

INSURANCE POLICY ON PROPERTY FRAUDULENTLY CONVEYED - RECOVERY by GRANTEE. Creditors had procured a decree that a certain conveyance was fraudulent. The property was later damaged by fire, and the creditors sued the grantee and the insurance company for the proceeds of a policy taken out by the grantee. Held, that the proceeds of the policy go to the grantee. Steinmeyer v. Šteinmeyer, 42 S. E. Rep. 184 (S. C.). See NOTES, p. 361.

INTERNATIONAL LAW EXTRADITION - SUBSEQUENT ANNEXATION OF LOCUS DELICTI BY DEMANDING State. — The prisoner committed a crime at Johannesburg before 1900, the date of the annexation of the South African Republic by Great Britain. Under the treaty of 1889 between the United States and Great Britain, the latter state subsequently asked for his extradition. Upon arrest the prisoner brought habeas corpus proceedings. Held, that since Johannesburg was not within the jurisdiction of Great Britain at the time of the offense, the prisoner must be discharged. In re Taylor, 118 Fed. 196 (Dist. Ct., Mass.).

Demands for extradition should generally be considered in the light of the conditions existing at the time the demands are made rather than at the time the crime was committed. See 2 CALVO, DROIT INTERNAT. § 1064; 2 CLUNET, 461, Suisse Tribunal fédéral, 25 juin 1875. Nor is the principle that penal law shall not be retroactive infringed by this, for extradition is neither a punishment nor an act of criminal procedure. 7 CLUNET, 406, Suisse Tribunal fédéral, 22 mars 1879: In re De Giacomo, 12 Blatch. (U. S. Circ. Ct.) 391. Consequently it has been held that extradition will be granted for a crime committed before the existence of the treaty under which it is asked. In re De Giacomo, supra. That an annexing state may punish a crime committed against the laws of the absorbed state is clear. See Damon's Case, 6 Me. 148. There would seem then to be no distinction between the principal case and In re De Giacomo, supra. In each case the demanding state alleges an extraditable offense, which it can punish, committed in territory to which a treaty now extends. The decision in the principal case is difficult to support.

MUNICIPAL CORPORATIONS - LIABILITY TO SPECIAL TAX-PAYERS FOR COMPLE TION OF LOCAL IMPROVEMENTS. A city released a paving contractor and his solvent surety, and relet the contract at increased cost. Abutting owners, assessed for the cost under the first contract, and then for the increase, sued the city to recover this second amount. Held, that the city is liable therefor. Louisville v. Kentucky, etc., Co., 70 S. W. Rep. 627 (Ky.). See NOTES, p. 360.

PROPERTY-ADMINISTRATION -Set-off of Debt BARRED BY STATUTE OF LIMITATIONS.- An heir owed an estate a debt the recovery of which was barred by the Statute of Limitations. Held, that the administrator can retain the amount of the debt from the distributive share of the heir. Holden v. Spier, 70 Pac. Rep. 348 (Kan.). For a discussion of the principles involved, see 14 HARV. L. REV. 73.

PROPERTY ADVERSE POSSESSION-TACKING.- In ejectment the plaintiff claimed through his own adverse possession and that of his predecessors, A, B, C and D. The only privity between A and B arose from an invalid sheriff's sale and transfer. Held, that such privity is not enough to justify tacking the adverse possessions. Johnston v. Case, 42 S. E. Rep. 957 (N. C.). For a discussion of the principles involved, see 13 HARV. L. REV. 52; 14 ibid. 72.

PROPERTY

SUCH.

APPOINTMENT UNDER GENERAL POWER - TITLE IN EXECUTORS AS - By the Finance Act of 1894, § 9, (1), estate duty on property which passes to the executor as such is payable out of the residue, whereas estate duty on property not