Procedure-Federal Jurisdiction — Removal of Causes. - An act of Congress provides that where suit is brought in any state court, "in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such Isuit into the circuit court of the United States " upon showing local prejudice or influence. (U. S. Comp. St. 1901, p. 509.) The plaintiffs, citizens of Colorado, brought suit in a Colorado state court against the defendants, one a citizen of Colorado, the other a citizen of West Virginia. The latter made an application to remove the case. Held, that the cause cannot be removed, since the co-defendant of the applicant is a citizen of the same state as the plaintiffs. Campbell et al. v. Milliken et al., 119 Fed. Rep. 982 (Circ. Ct., D. Col.).

The first part of the clause in question is copied from the local prejudice act of March 2, 1867. 14 Stat. 558. Under this act all parties on one side had to be citizens of different states from any party on the other side and had to unite in the petition for removal. Sewing Machine Cases, 18 Wall. (U. S. Sup. Ct.) 553. Most of the circuit courts have held, contrary to the principal case, that the present clause, as changed to 'any defendant," requires merely the petitioning defendant to be of different citizenship. Whelan v. New York, L. E. & W. R. R. Co., 35 Fed. Rep. 849; contra, City of Terre Haute v. Evansville & T. H. R. R. Co., 106 Fed. Rep. 545. It would seem, however, that the effect of this change is to give the right of removal to any one of the defendants without altering the requirement that all the defendants be citizens of other states from any party plaintiff. The provision in the act that the other defendants may be remanded, if as to them the suit can be justly determined in the state court, may be explained as applicable to other defendants, although their citizenship differs from that of the parties plaintiff. Further, the view contrary to that of the principal case would allow the removal of suits not within the jurisdiction of the circuit courts originally. See U. S. Comp. St., 1901, p. 508; Construction Co. v. Cane Creek, 155 U. S. 283. This interpretation seems questionable. See In Re Pennsyl vania Co., 137 U. S. 451, 454; Arkansas v. Kansas, etc., Coal Co., 183 U. S. 185, 188.

PROPERTY-ACCRETION-EMERGENCE OF TOTALLY SUBMERGED LAND. - In an action of ejectment it appeared that the plaintiff's lot was formerly separated from the Mississippi River by another lot. The plaintiff offered to prove that the latter had been gradually but totally submerged by the river, but had afterwards gradually emerged, forming the land in dispute. Held, that the evidence is irrelevant, since the plaintiff could acquire by accretion no title to the land beyond his original boundary. Stockley v. Cissna, 119 Fed. Rep. 812 (C. C. A., Sixth Circ.).

The principal case accords with the few authorities directly in point. Ocean City Assn. v. Shriver, 64 N. J. Law 550. On principle, however, the decision would seem unsound. The land in dispute was situated in Tennessee, and it is settled in this jurisdiction that the fee in the bed of navigable rivers is in the state. Goodwin v. Thompson, 15 Lea (Tenn.) 209. When land is gradually submerged by a river the former owner retains no rights in it, and the owner of the river bed acquires the absolute title. Wallace v. Driver, 61 Ark. 429; Foster v. Wright, L. R. 4 C. P. D. 438. In the principal case, therefore, while the land was submerged, the title was in the state and the owner's rights were extinguished. Being thus extinguished, it is difficult to see how they could revive. The plaintiff, on the other hand, has by the gradual and total submergence of the other lot become a riparian owner. Welles v. Bailey, 55 Conn. 292. It would seem, therefore, that he became entitled to the land, as it emerged, by the riparian owner's well recognized right to accretion. Posey v. James, 7 Lea (Tenn.) 98.

PROPERTY - ESTATES-LEASE FOR LIFE DETERMINABLE AT WILL OF LESSEE. In an agreement to lease certain premises at a stated weekly rent the lessor promised not to give notice to quit so long as the lessee paid the rent regularly. Held, that this is an agreement for a lease for the lessee's life determinable at the lessee's option, and subject to the condition of regular payment of the rent. Zimbler v. Abrahams, 19 T. L. R. 189 (Eng., C. A.).

Though the law bearing on this subject may be regarded as well settled, the case is interesting because of the unusual facts presented. An ordinary tenancy at will may be terminated by the lessor as well as the lessee. Co. LIT. 55 a; Richardson v. Langridge, 4 Taunt. 128. In the principal case, on the other hand, the parties have, in effect, expressly agreed that the estate shall be terminated only by the lessee. Since there is no reason for not giving effect to this provision, the lessee is thus entitled to an estate for life determinable at his option. See LEAKE, DIG. LAND LAW, 207. Such estates, though very unusual, have been recognized in both England and America. CO. LIT. 42 a; Doe d. Warner v. Browne, 8 East 165; Warner v. Tanner, 38 Oh. St. 118.

PROPERTY LIEN OF BOARDING-HOUSE Keeper PROPERTY NOT BELONGING TO BOARDER. A statute provides that the keepers of inns and boarding-houses shall have a lien on property brought upon their premises by guests; but that such lien shall not exist if the keeper of the inn or boarding-house has notice, when the property is brought, that it is not legally in the possession of the guest. (N. Y. Laws, 1897, c. 418, $71.) A boarder brought on the premises of a boarding-house keeper property belonging to the plaintiff. The boarding-house keeper had no notice concerning the true ownership of the goods. Held, that the latter has no lien on the property for the debt incurred by the boarder. Barnett v. Walker, 39 N. Y. Misc. 323 (Sup. Ct.).

At common law an innkeeper had a lien on property brought by a guest even though the right of possession was in a third party, provided the innkeeper was unaware of this fact. Robinson v. Walter, 3 Bulst. 269; Jones v. Morrill, 42 Barb. (N. Y.) 623. A boarding-house keeper, on the other hand, had no lien. Cochrane v. Schryer, 12 Daly (N. Y.) 174. The present New York statute gives the same lien to both innkeepers and boarding-house keepers. According to the express terms of the statute this lien would seem to attach even to goods not belonging to the boarder. In reaching an opposite conclusion the court argues that the interpretation just suggested would make the statute inconsistent with the constitutional provision concerning due process of law. The same suggestion appears in dicta of two other courts. See Wyckoff v. South Hotel Co., 24 Mo. App. 382; McClain v. Williams, 11 S. Dak. 227, 230. Since, however, in the case of innkeepers a lien of equal scope has been firmly established at common law, the statutory extension of that lien to boarding-house keepers would seem to be within the spirit as well as the letter of the constitution. Cf. Munn v. Illinois, 94 U. S. 113, 134; Reilly v. Stephenson, 62 Mich. 509.

PROPERTY MEMBERSHIP.

RELIGIOUS SOCIETY - CONTROL OF PROPERTY ON DIVISION OF An unincorporated religious society was entitled to use certain property under a trust. A majority of this society seceded, incorporated as a church of a different denomination, and assumed control of the property. The minority, claiming to constitute the original society, seek to enjoin the majority from using the property. Held, that the minority are entitled to the property in question, and the majority will be enjoined. Cape et al. v. Plymouth Congregational Church et al., 93 N. ́W. Rep. 449 (Wis.).

For a discussion of the principles involved, see 10 HARV. L. REV. 184; 12 ibid. 509.

SURETYSHIP VARIATION OF RISK PRINCIPAL OBLIGATION PROVIDING FOR CHANGE. A building contract, upon which the defendant was surety, contained a provision that the employer might direct changes in the building as the work went on. He directed a material change, with the builder's consent. Held, that such a change is not included in the provisions of the contract, and that therefore the surety is discharged. Erfurth et al. v. Stevenson, 72 S. W. Rep. 49 (Ark.). See NOTES, p. 511.

TORTS CARE OF EXPLOSIVES DELEGATION TO AGENT.-An engineer who had been entrusted with railroad torpedoes by the defendant company placed one on the track and for his own amusement exploded it in order to frighten a child. The child was injured by a piece of the flying metal. Held, that the railroad company is responsible. Euting v. Chicago & N. W. R. R. Co., 92 N. W. 358 (Wis.).

The court holds, as a matter of agency, that the servant's failure properly to exercise his duty of caring for a dangerous article rendered the company liable. But the decision would seem to rest upon a rule of torts rather than of agency. Unless the company itself owed the plaintiff a duty to see that the torpedoes were properly cared for, it is difficult to see how it can be responsible. In the absence of such a duty, certainly no principle of agency can make the company liable merely because of the employment of a servant and his failure to fulfil his duty to the company. Such a duty is imposed by the law of torts upon one who controls a dangerous instrumentality. That it should be a continuous duty resting upon him personally, and to be delegated to another only at his peril, seems reasonable, though this application of it may be harsh. There is considerable authority in accord. Pittsburg, etc., R. R. Co. v. Shields, 47 Oh. St. 387. See 15 HARV. L. REV. 406. One case, however, is directly contra. Smith v. New York, etc., R. R. Co., 78 Hun (N. Y.) 524.

TORTS DUTY OF OCCUPIER OF LAND BUSINESS VISITOR NOT ON THE LAND. - The defendants had negligently permitted a shooting gallery to be operated in so faulty a manner, upon their exhibition grounds, that a bullet struck and killed the plaintiff's decedent, who was standing near by, waiting to enter the grounds. Held, that the deceased being a business visitor, the plaintiff can recover. Thornton v. Maine State Agricultural Society, 53 Atl. Rep. 979 (Me.). See NOTES, p. 516.

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TORTS JOINT TORT FEASORS RELEASE OF ONE WITH RESERVATION OF RIGHTS AGAINST OTHERS. — Upon consideration of the payment of a sum of money the plaintiff gave to several of a number of joint tort feasors an instrument purporting to release them absolutely, but reserving the plaintiff's rights against the other joint tort feasors. The plaintiff subsequently brought an action against some of the joint tort feasors not named in the instrument. Held, that this instrument is merely a covenant not to sue the joint tort feasors named, and therefore does not discharge the others. Gilbert v. Finch, 173 N. Y. 455.

This decision is important as involving a question concerning which the decisions in New York are conflicting. See Matthews v. Chicopee Mfg. Co., 3 Robt. (N. Y.) 711; Delong v. Curtis, 35 Hun (N. Y.) 94; Smith v. Consolidated Gas Co., 72 N. Y. Supp. 1084. It does not appear whether or not the instrument in the principal case was under seal. That a sealed release of one discharges all others jointly liable has long been recognized. See 6 BAC. ABR. 7th ed. 625, tit. Release (G). It is held, however, in England and in several American jurisdictions that, if the instrument reserves the right to pursue others jointly liable, it is merely a covenant not to sue and is not a release. Price v. Barker, 4 E. &. B. 760; Berry v. Gillis, 17 N. H. 9. Though this construction is strained, it gives effect to the ultimate intention of the parties and therefore seems justifiable. Several American courts, however, have held that such a reservation is of no effect because repugnant to the release expressed. Gunther v. Lee, 45 Md. 60. A parol settlement purporting to effect a release is almost everywhere held not to discharge others jointly liable, unless the payment received was intended as a complete satisfaction of the claim. Ellis v. Esson, 50 Wis. 138; contra, Mitchell v. Allen, 25 Hun (N. Y.) 543; Smith v. Consolidated Gas Co., supra. The New York decisions on this point at least would seem virtually overruled by the decision of the principal case.

TORTS MALICIOUS PROSECUTION FORMER ACQUITTAL AS EVIDENCE OF LACK OF PROBABLE CAUSE. In an action for malicious prosecution the plaintiff introduced evidence of his acquittal in the criminal trial. Held, that such evidence cannot be considered for the purpose of establishing want of probable cause. land v. Lyons, 72 S. W. Rep. 56 (Tex., Sup. Ct.).

Bekke

As a condition to recovery the plaintiff must show a favorable termination of the prosecution instituted by the defendant. O'Brien v. Barry, 106 Mass. 300. See 14 HARV. L. REV. 223. There is some confusion as to whether the evidence of this fact may be considered for the additional purpose of establishing want of probable cause. Properly the question appears to be purely one of logical relevancy. From this point of view there are two classes of previous proceedings. In the first, fall those proceedings in which the issue is the probable guilt of the accused. Evidence of the favorable termination of such proceedings would seem relevant; for example, the discharge by a magistrate at a preliminary hearing. Frost v. Holland, 75 Me. 108; contra, Israel v. Brooks, 23 Ill. 575. The second class consists of those proceedings in which the probable guilt of the accused has not been in issue; for instance, where the prosecution has been abandoned. Braveboy v. Cockfield, 2 McMull. (S. C.) 270. The principal case would seem to fall within the latter class, for the acquittal tends to show only a failure to prove guilt beyond a reasonable doubt. The confusion in the cases arises because of a failure to distinguish between these two classes. The principal case is supported by the weight of authority. Eastman v. Monnastes, 32 Ore. 291; contra, Christian v. Hanna, 58 Mo. App. 37.

BOOKS AND PERIODICALS.

EMPLOYERS' LIABILITY FOR MALPRACTICE IN HOSPITALS FOR Employees. -It is a recognized exception to the doctrine of respondeat superior that charitable hospitals, private as well as public, are not liable to patients for injuries suffered at the hands of surgeons or nurses selected with due care for hospital service. Joel v. Woman's Hospital, 35 N. Y. Supp. 37. This freedom from liability has been extended to hospitals maintained by corporations for the treatment of their ill and injured employees. Railway Co. v. Artist, 60 Fed. Rep. 365. Whether the reasons for the exception satisfactorily explain the extension of it to such hospitals, is discussed in a recent number of the Central Law Journal. The Non-Liability of Railroad Companies maintaining Hospi tals for the Malpractice of Surgeons and the Negligence of Nurses therein, by Wm. B. Morris, 56 Central L. J. 184 (March 6, 1903). The author holds the reason for the non-liability of a charitable institution to be that the burden of paying damages assessed against it ultimately falls on the public, since the public must care for patients whom the institution can no longer accommodate because its resources have been crippled. This reasoning, he urges, does not support the decisions relating to hospitals maintained by railroads, mining corporations, and the like.

Various theories, most of them unsatisfactory, have been suggested to explain the immunity of charitable corporations. It cannot rest on the fact that the corporation receives nothing in return for its treatment of the patient, for paying as well as non-paying patients are barred from recovery. Ward v. St. Vincent's Hospital, 50 N. Y. Supp. 466. Nor can it rest on the theory that the resources of a charitable institution are gifts in trust for charitable purposes and are not to be diverted from those purposes, for no distinction is taken between the endowment and the receipts from paying inmates. The true ground seems to be that suggested by the author and above referred to, namely, that there is no occasion to invoke the arbitrary doctrine of respondeat superior where the conduct of the superior is essentially charitable and the application of the doctrine must be expected to result in the lessening of his charitable efforts.

The author, however, fails to point out any clear distinction between the case of the ordinary charitable institution and that of the railroad hospital. His only implied distinction is that the element of selfishness is found commonly in the latter and rarely in the former. But it would seem that the mere incidental expectation of an indirect benefit is not enough to distinguish a non-charity from a charity. A working rule for all these cases should be based on something tangible, and should be uniform. It is doubtful if a more serviceable test can ever be applied than the one commonly adopted by the courts in both the classes of cases under discussion. If it appears that no direct profit is derived or expected from a hospital, by whomsoever maintained, then it is essentially a charity. It is reasonable to expect that a company would discontinue its hospital rather than assume responsibility for the mistakes therein of surgeons whose work brings the company no profit and is subject to no effective control by the company. But if the company derives an income from the maintenance of its hospitals, then the enterprise is no charity and the doctrine of respondeat superior should be applied. Texas & Pacific Coal Co. v. Connaughton, 20 Tex., Civ. App. 642. The question is certainly more difficult when a hospital is supported by deductions from wages. But even then, inasmuch as the institution is not maintained by the railroad for purposes of profit, it would seem to rank as a charitable, or at least as a co-operative, institution, and the railroad company, therefore, should be entitled to immunity.

RIGHTS OF MORTGAGEE OF FIXTURES AGAINST MORTGAGEE OF LAND. In the recent case of Reynolds v. Ashby, 72 L. J. K. B. D. 51, the English Court of Appeal held that a prior mortgagee of the realty would be allowed to take machines affixed to the land under an agreement between the owner of the premises and the vendor of the machines that they should remain the property of the latter until paid for. In the earlier case of Hobson v. Gorringe, [1897] I Ch. 182, a subsequent mortgagee of the land was also preferred to the vendor of the machines. The weight of authority in this country is opposed to the case of Reynolds v. Ashby. Campbell v. Munson, 44 N. J. Eq. 244; contra, Frankland v. Moulton, 5 Wis. I. The decision in Hobson v. Gorringe is in accord with the general American law. Davenport v. Shants, 73 Vt. 546; contra, Ford v. Cobb, 20 N. Y. 344.

66

In a recent article the author expresses his disagreement with both the English cases. The Incidental Passing of Fixtures, by John Indermaur, 25 L. Stud. J. 59 (March, 1903). In dealing with the case of Hobson v. Gorringe, Mr. Indermaur advances a novel idea. On account of the " common custom to let out machines and engines on the hire system," he would charge a subsequent encumbrancer of the land with constructive notice of the rights of the owner of the chattels. He justifies this by the following sentence: As matters stand, I do not see how that particular branch of the trade is to go on, for a person cannot in any way protect himself against the possibility of a subsequent mortgage." In order to appreciate the precise question, it would seem necessary to keep in mind that "Quicquid plantatur solo, solo cedit" is the rule of our law, and that the privileges of removing domestic and trade fixtures accorded to certain persons, such as leasehold-tenants and tenants for life, are exceptions to the rule, established from considerations of public policy. See Elwes v. Maw, 3 East 38. Thus the requirements of the early development of this country were held to justify an exception, refused in England, in favor of erections for agricultural purposes. Van Ness v. Pacard, 2 Pet. (U. S. Sup. Ct.) 137. Mr. Indermaur is really contending for the recognition of another exception in England, in favor of owners of machines and engines, and the correctness of his position would, therefore, seem to turn entirely on the accuracy of his estimate of the demands of public policy. While a presumption of notice such as he suggests would undoubtedly encourage the trade in these articles, it would, on the other hand, cast new and heavy burdens on purchasers and mortgagees of land. In view of the long-settled policy of the English law in favor of the transfer of titles to land unencumbered it would seem that there should be an unmistakable and very strong balance of convenience in favor of the vendor, in order to justify such radical action by the courts as Mr. Indermaur desires. Such balance of convenience, it may be thought, he fails to establish.

Furthermore, it is at least open to question whether such alleged hardship as the author seeks to remedy in England exists at all in this country. A mortgage on machines and engines might well be regarded, after they have been affixed to the land, as an encumbrance on the realty, and as such held entitled to be put on record with real mortgages. If this be true, it would appear that the owner of such articles has ample protection against a subsequent encumbrancer of the land. The existence of a right so to record seems never to have been established by actual decision, but it has been suggested in several cases. See Trull v. Fuller, 28 Me. 545. Some jurisdictions charge a subsequent encumbrancer of land with constructive notice, when the mortgage on fixtures is recorded simply as a chattel mortgage in the place provided for the filing of such mortgages. Sowden v. Craig, 26 Ia. 156. But this seems hardly within the spirit of our recording acts, and the weight of authority is against it. Case Mfg. Co. v. Garven, 45 Oh. St. 289.

Gratuities to Employees of CorporATIONS. The United States Steel Corporation has proposed a plan to stimulate its employees to more effective work. The main features are the purchase of its own stock at the market price, the sale of that stock to its employees at a reduction, and payment by the