EVIDENCE-PROOF OF FOREIGN LAW-DECISIONS OF INFERIOR COURTS IN FOREIGN JURISDICTION. — Held, that the construction of the New York recording act by inferior courts of New York will not be accepted in Pennsylvania as representing the New York law. Schmaltz v. York Mfg. Co., 53 Atl. Rep. (Pa.) 522.

The interpretation placed upon statutes by the highest court of another state is ordinarily taken as conclusive evidence of the law of that state. Secombe v. R. R. Co., 23 Wall (U. S. Sup. Ct.) 108; Van Matre v. Sankey, 148 Ill. 536. The principal case, however, refuses to assign similar weight to the decisions of inferior courts and rejects their interpretation on the ground that it seems incorrect and undesirable and is contrary to the decision of the supreme court of New Jersey upon a similar statute. See Knowles' Loom Works v. Vacher, 57 N. J. Law, 490. It may be admitted that the decision of a lower court is merely evidence of foreign law. Gilchrist v. W. Va. Oil Co., 21 W. Va. 115. Nevertheless it would seem that unless it appears inconsistent with other decisions in the jurisdiction, or is clearly unreasonable, it should be accepted as representing the law. Decisions in New Jersey would seem valueless in the determination of New York law. Moreover, the refusal to follow the decisions of New York inferior courts necessarily introduces an element of uncertainty into transactions in that state which may be adjudicated upon elsewhere. In the principal case, therefore, the reasons urged seem insufficient to justify the refusal to adopt the conclusion of the lower court of New York. No decisions involving the exact point have been found.

INSURANCE-CO-INSURANCE CLAUSE-APPORTIONMENT OF LOSs. — The plaintiff was insured under several policies, all of which had the usual "apportionment clause" and some the " percentage co-insurance clause." The insurance and the loss were each less than eighty per cent of the value of the property. Held, that in estimating the "whole amount of insurance" the face values of all the policies should be added. Stephenson v. Agricultural Ins. Co., 93 N. W. Rep. 19 (Wis.). Farmer's Feed Co. v. Scottish Union, etc., Ins. Co., 173 N. Y. 241.

The result of these decisions seems unfortunate. Though the insurance on the property exceeded the actual loss, the insured was not completely indemnified. Cf. Chesbrough v. Home Ins. Co., 61 Mich. 333. The conclusion of the courts is based solely on the construction of the "apportionment clause" which provided that the 'company shall not be liable for a greater proportion of the loss than the amount hereby insured shall bear to the whole insurance effected on the property." If the face value of those policies which contained the "co-insurance clause" is used to estimate the "whole insurance," the result reached cannot well be avoided. But the "co-insurance clause" might well be construed as a condition subsequent which would operate to make the actual amount covered by the policy containing it less than its face value. This smaller sum would then seem to be the true value of the policy in the circumstances of the principal case. See Armour Packing Co. v. Reading Fire Ins. Co., 67 Mo. App. 215. Only this amount, therefore, should be considered in estimating the whole insurance on the property. By this construction, the insured would receive complete indemnity from the insuring companies. No other authorities have been found.

INSURANCE

- CONDITIONS-FAILURE TO GIVE NOTICE WITHIN STIPULATED TIME. A policy provided that the company should not be liable unless the insured should give notice of an accident within ten days thereafter. The insured was incapacitated by his injuries from giving notice within the time fixed, but did so as soon as he was able. Held, that he may recover on the policy. Comstock v. Fraternal Accident Ass'n, 93 N. W. Rep. 22 (Wis.).

A policy provided that failure to give notice of the accident causing disability or death within fifteen days of the date of the accident should render void all claims under the policy. The insured sustained an injury which he considered trivial but from which he afterwards died. The cause of his death was not known until an autopsy was performed, whereupon notice was given. Held, that the beneficiary may recover. Rorick v. Ry. Officials, etc., Ass'n, 119 Fed. Rep. 63 (C. C. A., Ninth Circ ).

The doctrine has been laid down that conditions in insurance policies to be performed by a beneficiary after the accident or death will be more leniently construed than those to be performed before. See McNally v. Phonix Ins. Co., 137 N. Y. 389. Since by the express terms of the policy, all conditions are equally conditions precedent, it is hard to justify the distinction. Several courts, however, have applied it in holding that failure to give notice of the accident within the fixed time prescribed will not, under circumstances similar to those in the principal cases, prevent recovery. Peele v. Provident Fund Soc., 147 Ind. 543; Association v. Earl, 16 C. C. A. 596. In other jurisdictions exact performance of the conditions is required. Gamble v. Accident Ass

Co., 2 Big. L. & A. Ins. Ca. 681 (Ireland). On strict legal principle only the latter view is tenable. Contrary decisions illustrate the tendency of some American courts to sacrifice principle to the apparent justice of the case.

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INSURANCE LIFE INSURANCE - INSURED EXECUTED FOR MURDER. insured was convicted of murder and hanged. The policy contained no express provision as to death resulting from crime. The beneficiaries brought suit on the policy, alleging that the insured had been wrongfully convicted and executed. Held, that, even if this allegation is true, there can be no recovery. Burt v. Union, etc., Ins. Co., 23 Sup. Ct. Rep. 139.

An express promise to indemnify for the consequences of crime is clearly unenforceable. Arnold v. Clifford, 2 Sumn. 238 (U. S. Circ. Ct.). It would seem to make no difference that the promise is impliedly included in a wider contract of indemnity. Consequently, where the insured was admittedly guilty of a capital crime a policy was held to be unenforceable. Amicable Soc. v. Bolland, 4 Bli. N. S. 194. This case, apparently the only one on the exact point, was approved by the Supreme Court when it held a policy invalidated by the suicide of the insured while sane, on the ground that this also was a crime. Ritter v. Mutual Life Ins. Co., 169 U. S. 139; see contra, Fitch v. American, etc., Co., 59 N. Y. 557. The principal case seems to be the first in which the insured was admittedly innocent. To enforce the policy here is merely to enforce an indemnity against death by a miscarriage of justice. Such a contract, however, also seems against public policy, as tending to affect the administration of justice. See LEAKE, CONTR. 3rd ed. 626. A contrary view would open the judgments of criminal courts to collateral investigation.

INSURANCE - WIFE AS BENEFICIARY-SECOND WIFE's Interest.—The insured had taken out a policy for the benefit of his wife and children. It is provided by 45 & 46 Vict., c. 75, § 11, that such a policy "shall create a trust in favor of the objects therein named.' The insured's wife subsequently died, and he remarried. The second wife, and children of both marriages survived him. Held, that the surviving wife and all surviving children take under the policy. In re Browne's Policy, 19 T. L. R. 98 (Eng., Ch. D.).

The question raised is: with what intention did the deceased use the words "wife," and "children"? As to the latter, he must have recognized the possibility of having children in the future, and it is reasonable to suppose that he intended the word to include such of them as should survive him. Roquemore v. Dent, 33 So. Rep. 178 (Ala.). But in using the word "wife" a married man would naturally intend his present wife, and it is improbable that the possibility of another marriage occurred to the insured at the time he took out his policy. See Pratt v. Matthew, 22 Beav. 328, 334. The court practically admits this, and seems to construe the word as it considers the testator would have intended it, had he known that he was to have a second wife. Such a method of construction, it is submitted, is not to be supported. No case exactly in point was found, but a legacy "to my beloved wife was held to lapse with the death of the first wife. Garrat v. Niblock, 1 R. & M. 629; see Franks v. Brooker, 27 Beav. 635.

SURROGATE'S COURT.

JUDGMENTS-COLLATERAL ATTACK ON JURISDICTION In order to confer jurisdiction upon the New York courts, a watch and chain belonging to the intestate, who was domiciled in Connecticut, was brought to New York after his death. Upon this basis the surrogate's court granted administration to the plaintiff, the public administrator. He then commenced the present action against the defendant for causing, in Connecticut, the intestate's death. The defendant attacked the jurisdiction of the court on the ground that the surrogate's decree was obtained by fraudulent practice. Held, that the decree was subject to collateral attack on the grounds alleged. Hoes v. N. Y. N. H. & H. R. R., 173 N. Y. 435.

By the general rule, with which the New York law is in accord, the judgments of courts of record having probate jurisdiction are entitled to the same presumptions in favor of their assumed jurisdiction as courts of general power. People v. Medart, 166 Ill. 348. Although the jurisdiction of a foreign court is generally subject to collateral attack, yet by the weight of authority the presumption in favor of the jurisdiction of domestic courts of general powers is conclusive as against collateral attack, unless the lack of jurisdiction appears affirmatively upon the record. Coit v. Haven, 30 Conn. 190; Reinhardt v. Nealis, 101 Tenn. 169. But the New York courts have gone far beyond those of the other states in allowing collateral attack on the jurisdiction, since they subject the judgments of a domestic court of general powers to collateral attack even where its jurisdiction appears affirmatively upon the record. Ferguson v. Crawford, 70 N. Y. 253. So while the case appears to be sound

law in New York on the statutes and authorities cited in the opinion, it is questionable whether it would be generally followed. It is valuable as protecting the New York courts, to a certain extent, from a threatened abuse by which they were subject to the necessity of hearing claims for death arising in any neighboring state.

JUDGMENTS - MISNOMER OF PARTNERSHIP AS CORPORATION — LIABILITY OF PARTNERS. The plaintiff sued a partnership, describing it as a corporation. Judg. ment was recovered as against the corporation, the partners having appeared and pleaded to the merits without denying their corporate existence. The plaintiff now sues in equity to charge the individual partners with the judgment. Held, that_the judgment does not bind them. Pittsburg Sheet Mfg. Co. v. Beale, 53 Atl. Rep. 540 (Pa.).

The decision seems sound and is of interest in suggesting a very reasonable limitation upon the rule that a misnomer of a defendant in a judgment will not invalidate the judgment when the proper party has been served. See Guinard v. Heysinger, 15 Ill. 288. The principle underlying this rule is that the party bound by a judgment is the actual person within the contemplation of the court, regardless of his name. Parry v. Woodson, 33 Mo. 347. Ordinarily, under this rule, individual partners are bound by a judgment against the firm, though the firm is not correctly named. Bailey v. Crittenden, 44 S. W. Rep. 404 (Tex.). But in the principal case the court intended to bind, not the defendants, but a distinct legal entity, the corporation, and so the case is beyond the reason, and should be without the application of the rule. Nor can the defendants be held on the principle of estoppel, for in admitting their corporate existence, they have denied, not asserted, their individual liability.

LIMITATION OF ACTIONS-TORTS - CONSEQUENTIAL DAMAGE. — The defendant in performing a surgical operation on the plaintiff negligently left a sponge in the wound. Thereafter the statutory period for actions for malpractice had run. During this time the plaintiff consulted the defendant but was not treated by him. Held, that the action is not barred by the statute of limitations. Tucker v. Gillette, 22 Ohio Circ. Ct. Rep. 664. Affirmed by an evenly divided court, Gillette v. Tucker, 65 N. E. Rep. 865 (Ohio).

The undoubted liability for the original negligence was barred by the statute of limitations, and since no subsequent independent act of negligence could be inferred from the evidence, the defendant's tort was necessarily considered by the affirming judges as a continuing act of negligence. Strictly, however, it was only the injurious consequences which were continuous, and it is almost universally held that the statutory period is not extended by consequential damage if there is an immediate right of action. WOOD, LIMITATIONS, § 178. Wilcox v. Plummer, 4 Pet. (U. S. Sup. Ct.) 172. The result reached by the court therefore seems difficult to support. Though the plaintiff's ignorance of the defendant's tort will not extend the statutory period, it would seem just to make a special exception where the defendant had the later legal duty of discovering his own negligence. But no authority has been found for such a doctrine. Cf. WOOD, LIMITATIONS, § 49.

MORTGAGES FORECLOSURE BARRED BY STATUTE OF LIMITATIONS EJECTMENT.- A mortgagee whose debt and right to foreclose were barred by statutes of limitations brought ejectment against the mortgagor's successor. Held, that he may recover in ejectment. Bradfield v. Hale, 65 N. Ē. Rep. 1008 (Ohio). See NOTES, P. 445.

MUNICIPAL CORPORATIONS — LIMITATION ON Power to Create Indebtedness. A city already indebted up to the constitutional limit, authorized an issue of bonds for the construction of a water works system. The bonds were to be paid by a special annual tax, and were to give no right against the general funds of the city. Held, that such bonds would create an indebtedness within the meaning of the constitutional provision. City of Ottumwa v. City Water Supply Co., 119 Fed. Rep. 315 (Iowa). See NOTES, p. 442.

PRACTICE-JOoinder of PARTIES-DECEAsed Obligor of Joint Note. — The plaintiff sued on a joint note, joining as defendants the representative of a deceased obligor and the surviving obligors. § 758 of the New York Code provides that the estate of a person jointly liable on a contract shall not be discharged by his death. Held, that the plaintiff may not join the deceased's estate in his action on the note, unless he prove that the survivors are insolvent or have a legal defense. Potts v. Dounce, 173 N. Y. 335.

The court holds that the effect of the statute is to allow recovery against the deceased's estate at law, but only upon the same proof as was formerly required in equity. Cf. First Nat. Bank v. Leuk, 123 N. Y. 638. But since, in any case, recovery can be had against the solvent survivors and they having paid can in equity compel contribution from the estate of the deceased, § 758 could well be construed to provide the simple method of settling the whole matter in one action. That practice has been followed in several of the other code states under similar provisions. Lawrence v. Doolan, 68 Cal. 309; Hudelson v. Armstrong, 70 Ind. 99. The section in question, however, would seem from its position in the Code to be confined in its application to cases where the party dies pending the action. The result in the principal case might perhaps be sustained on this ground, though this was not mentioned in the decision. Cf. In re Robinson's Will, 57 N. Y. Supp. 502.

PROPERTY - EASEMENTS - IMPLIED RESERVATION. The defendant built a railroad across its own land, with side ditches so constructed as to throw water upon a certain portion of this land. Later the tract was sold to the plaintiff's grantor, the defendant reserving "a right of way" (apparently the fee), but not mentioning the right to flood the adjoining land. Held, that there was an implied reservation of this right. Fremont, etc., R. R. Co. v. Gayton, 93 N. W. Rep. 163 (Neb.).

Where an owner has burdened one part of his land for the benefit of another part, and then sells the burdened part, most jurisdictions refuse to imply a reservation of an easement, though the burden was open and continuous. Wheeldon v. Burrows, L. R. 12 Ch. D. 31; Mitchell v. Siepel, 53 Md. 251. The reason given for this, is that the grantor may not derogate from his grant. But this rule should, it would seem, be no more inflexible than the rule that the grantee may not claim rights not expressly included in his conveyance. Yet the courts allow a grantee of the quasi dominant part to claim an easement in the grantor's land by implied grant, on the ground that the parties have contracted with reference to the existing condition of the land. New Ipswich Factory v. Batcheldor, 3 N. H. 190. It would seem that this is equally true, whichever part is sold, and that considerations which permit of implied grants should also permit of implied reservations. A few jurisdictions so hold. Harwood v. Benton, 32 Vt 722; Seibert v. Levan, 8 Pa. St. 383. The principal case strengthens the doctrine in the United States.

PROPERTY-EMINENT DOMAIN - LAND ALREADY DEVOTED TO PUBLIC USE. — Held, that a city holding its easement over park lands in trust for the public_cannot have compensation when the park is taken for a post-office. In re Certain Land in Lawrence, 119 Fed. Rep. 453 (Dist. Ct., Mass.). See NOTES, p. 446.

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PROPERTY - PRESCRIPTION DOCTRINE OF LOST GRANT. - The plaintiff for twenty years used a right of way over the defendant's land. The defendant never prevented the use of the way, but often denied the plaintiff's right, and threatened to close up the way. Held, that the plaintiff gained no right of way by prescription. Reed v. Garnett, 43 S. E. Rep. 182 (Va.). See NOTES, p. 438.

SALES BILL OF LADING - LIABILITY OF Indorsee for Default of Indorser. Action was brought by the plaintiffs for a breach of warranty of goods shipped to the plaintiffs under a bill of lading attached to a draft which the plaintiffs had paid to the defendant. The indorsements on the draft were sufficient to give the plaintiffs notice that the defendant held it for collection only. Held, that the defendant is not liable. Gregory v. Sturgis Nat. Bank, 71 S. W. Rep. 66 (Tex., Civ. App.).

The case is of interest as tending to limit the doctrine that the indorsee of a bill of lading takes subject to the liabilities of the assignor. See Landa v. Lattin, 19 Tex. Civ. App. 246. For a discussion of this doctrine see 16 HARV. L. REV. 292.

He

SALES CONDITIONAL SALE OF MARE-RIGHT OF SELLER TO OFFSPRING. The plaintiff was the holder of a recorded conditional bill of sale of a mare. claimed the mare's colt from the defendant who had purchased the unweaned colt from the conditional vendee. Held, that the plaintiff is entitled to the colt. Anderson v. Leverette, 42 S. E. Rep. 1026 (Ga.). See NOTES, p. 442.

STREET RAILWAYS-FRANCHISE DEPENDENT ON CONSENT OF ABUTTERSPROCUREMENT BY PURCHASE. - A statute provides that a municipal council shall not grant a franchise for a street railway "until there is produced to the council . . . the written consent of the owners of more than one half of the feet front" of the abutting land. Rev. St. Ohio, § 3439. A railway company purchased such consent from abut

ters who would otherwise have withheld their consent. Held, that the condition imposed by the statute has been complied with. Hamilton, etc., Traction Co. v. Parish, 65 N. E. Rep. 1011 (Ohio).

The decision is of interest as involving the interpretation of a provision similar to those found in the statutes of other states and in the constitution of New York. See BOOTH, ST. Ry. Law 23; N. Y. Const. Art. III. § 18. It cannot be supposed that the object of these enactments is to compel railway companies to compensate the abutters for damage suffered. Were that so, the statute would doubtless require the consent of all. The real purpose seems twofold. In the first place the municipal authorities are prevented from arbitrarily permitting the public streets to be used for railways. See Roberts v. Easton, 19 Ohio St. 78, 86. Secondly, the written consent of the majority in interest constitutes a petition to the authorities in whose discretion the granting of the franchise finally rests. If not purchased, this petition is strong evidence that the railway in question would substantially benefit the land owners most nearly affected and hence ordinarily the general public. See Doane v. Chicago City Ry. Co., 160 Ill. 22, 32, 37. To allow purchase, on the other hand, plainly permits the abutters to impose unreasonable terms on the railway company. From these considerations it would seem that on principle the decision in the principal case is questionable. It is opposed, also, to the only authority found directly in point. Doane v. Chicago City Ry. Co., supra; but see s. c. 51 Ill. App. 353. Further, under analogous statutory requirements concerning street improvements the consent of the necessary proportion of abutters cannot be purchased. Maguire v. Smock, 42 Ind. 1; see Howard v. First Church, 18 Md. 451, 456.

SURETYSHIP Co-SURETIES - RIGHTS IN SECURITY HELD BY CO-SURETY. — A sheriff's bond was executed with several sureties. One of these refused to become bound unless security was given for his personal indemnification. Such security was accordingly given. There was no evidence that the other sureties knew of the transaction, but there was no actual fraud. It was claimed that the security must be held for the equal benefit of all the sureties. Held, that the surety who obtained it may use it for his own separate indemnity. McDowell County Com'rs v. Nichols et al., 42 S. E. Rep. 938 (N. C.). See NOTES, p. 439.

TORTS LIABILITY FOR NEGLIGENT FAILURE TO PERFORM CONTRACT WITH THIRD PARTY. — The defendants contracted with the lessor of the plaintiff to heat the building in which the plaintiff was a tenant in such a manner that a patent fire sprinkler would not freeze. The defendants negligently failed to do so, the fire sprinkler burst, and the plaintiff suffered damage. Held, that the defendants are liable in tort for the negligent failure to perform what they had undertaken. Pittsfield Cottonwear Co. v. Pittsfield Shoe Co., 53 Atl. Rep. 807 (N. H.).

The court recognizes it as well established law that there can be no recovery, by the present plaintiff, on the contract. Boston, etc., Trust Co. v. Salem Water Co., 94 Fed. Rep. 238. The case rests on the sole ground that the defendants, having assumed to prevent the accident, are liable for damages resulting from their negligent failure to do so. See Edwards v. Lamb, 69 N. H. 599. The contract is important only in so far as it shows the existence of an undertaking. The court fails to consider the important question as to whether the defendants were guilty of a misfeasance or of a nonfeasance, assuming apparently that there was a misfeasance. If a mere failure to act according to contract is a misfeasance, there is no meaning left for the word nonfeasance. The great weight of authority has been that there could be no recovery in tort unless there was a misfeasance. Osborne v. Morgan, 130 Mass 102; Styles v. Long Co., 51 Atl. Rep. (N. J., Sup. Ct.) 710. There is a strong and growing tendency, however, to do away with what seems only an arbitrary distinction, and to allow recovery for damage from nonfeasance. Lough v. Davis & Co., 70 Pac. Rep. 491 (Wash.); Mayer v. Building Co., 104 Ala. 611. It is unfortunate that the principal case, in arriving at a desirable result, does not face the issue squarely. See 16 HARV. L. REV. 133.

TORTS LIBel — NegligeNT PROTEST OF SATISFIED NOTE. The defendant, the holder of the plaintiff's note, agreed to send the note to the plaintiff for cancellation, and in consideration received a renewal note. He negligently caused the original note to be protested. Held, the plaintiff can recover in tort for the damage to his credit. State Mut. Life, etc., Assn. v. Baldwin, 43 S. E. Rep. 262 (Ga.).

The case appears unique on its facts since the protest was made negligently. Where an unwarranted protest was intentional, recovery for libel has been allowed. May v. Jones, 88 Ga. 308. The court in the principal case rested its decision on the ground that a tort is committed by the negligent violation of a contractual duty. Cf. City, etc., Ry. Co. of Savannah v. Brauss, 70 Ga. 368 But this view is unsupportable on prin