Keeseville, etc. R. Co., 106 N. Y. App. Div. 349. See Henry v. Babcock & Wilcox Co., 196 N. Y. 302, 305, 89 N. E. 942, 943.

CRIMINAL LAW - DEFENSES -DURESS IN ROBBERY AS DEFENSE TO RESULTING MURDER. The defendant under duress participated in a robbery which ended in the murder by the defendant's associate of the person robbed. A statute provided that duress should be an excuse for any crime except murder. Held, that the defendant may be convicted of murder. State v. Moretti, 120 Pac. 102 (Wash.).

A person is guilty of murder if killing accidentally results from his own act in the commission of robbery. People v. Milton, 145 Cal. 169, 78 Pac. 549. Cf. Regina v. Serné, 16 Cox C. C. 311. See 1 Hale, Pleas of the Crown, 465. If, however, the defendant has a justification for the robbery, he should not be held for the accidental consequences, because the necessary legal blameworthiness is absent. Cf. Queen v. Bruce, 2 Cox C. C. 262; Williams v. State, 81 Ala. 1, 1 So. 179. Thus, if the killing in the principal case resulted from the defendant's own act, and the statute excuses that act, the defendant should not be held. This, it seems, is the reasonable interpretation, since penal statutes are to be construed in favor of the accused. Commonwealth v. Standard Oil Co., 101 Pa. St. 119. In the absence of excuse, the defendant would be guilty of murder even though the killing is the act of a confederate. State v. Barrett, 40 Minn. 77, 41 N. W. 463; State v. King, 24 Utah 482, 68 Pac. 418. Cf. Commonwealth v. Moore, 121 Ky. 97, 88 S. W. 1085. And even if the statute provides an excuse for the defendant's act, the defendant might be held for his confederate's act on a doctrine analogous to that of agency. Cf. People v. Knapp, 26 Mich. 112; Williams v. State, supra. But, it is submitted, the defendant should be considered guilty of murder only as a result of his own act of robbery, and so should not be held.

DEEDS

GENERAL

PAROL EVIA deed to an intestate The heirs of the whole

CONSTRUCTION AND OPERATION IN DENCE TO VARY RECITAL OF CONSIDERATION. from his mother recited a consideration of $2000. blood contested the estate with those of the half blood under a statute providing that an estate which vested in an intestate by gift from an ancestor should descend from him solely to relatives of the blood of that ancestor. Held, that parol evidence is admissible to show that the sole consideration for the deed to intestate was love and affection. Harman v. Fisher, 134 N. W. 246 (Neb.). The recital of consideration in a deed cannot be contradicted for the purpose of defeating the instrument as a conveyance. Grout v. Townsend, 2 Den. (N. Y.) 336; Miller v. Edgerton, 38 Kan. 36. But with this exception courts allow great latitude of inquiry as to what, if any, consideration really passed between the parties. See 2 DEVLIN, DEEDS, 3 ed., § 834. In suit for the purchase price the grantor may show that none, or not all, of the consideration was in fact paid. Gully v. Grubbs, 1 J. J. Marsh. (Ky.) 387; Bowen v. Bell, 20 Johns. (N. Y.) 338. But see Baker v. Dewey, 1 B. & C. 704, 707; Lampon v.. Corke, 5 B. & Ald. 606, 611. Or he may show that payment was to be in something other than money. M'Crea v. Purmort, 16 Wend. (N. Y.) 460. For most purposes the consideration clause is regarded as a mere acknowledgment, subject to contradiction by parol like any other receipt. See 4 WIGMORE, EVIDENCE, § 2433. It has been held that, though the amount of consideration may be varied by parol, its kind cannot, so as to change the deed from one of purchase to one of gift and alter the descent. Groves v. Groves, 65 Oh. St. 442, 62 N. E. 1044. Cf. Yates v. Burt, 143 S. W. 73 (Mo.). But to make such a distinction would enable the grantor to make a gift and yet avoid the applicable statute of descent. The result of the principal case seems preferable. Rockhill v. Spraggs, 9 Ind. 30; Meeker v. Meeker, 16 Conn. 383.

EMINENT DOMAIN WHEN IS PROPERTY TAKEN-GRADE OF STREET CHANGED BY RAILROAD. - In raising the grade of its roadbed, the defendant railroad company was required by a city ordinance to make the necessary alterations in the grade of streets crossed by the railroad, as directed by the city engineer. The grade of the street in front of the plaintiff's property was raised. Held, that she is entitled to compensation for damage to her right of access. Pittsburg, C., C. & St. L. Ry. Co. v. Atkinson, 97 N. E. 353 (Ind., App. Ct.).

Ι

The alteration of street grades for street purposes gives abutters no claim to compensation. Callender v. Marsh, 1 Pick. (Mass.) 418. See I LEWIS, EMINENT DOMAIN, 3 ed., §§ 133, 134, 137. It is otherwise if the street is modified to serve as a dike or furnish materials for another street. City of Shawneetown v. Mason, 82 Ill. 337; Mayor, etc. of Macon v. Hill, 58 Ga. 595. Raising an approach for an ordinary bridge is a street purpose. Willis v. Winona City, 59 Minn. 27, 60 N. W. 814; Willets Mfg. Co. v. Board of Chosen Freeholders, 62 N. J. L. 95, 40 Atl. 782. Elevating one for private accommodation is not. Ranson v. City of Sault Ste. Marie, 143 Mich. 661, 107 N. W. 439. But a street purpose does not cease to be such because a corporation is required to execute it. Chicago, etc. Ry. Co. v. Johnson, 45 Ind. App. 162, 90 N. E. 507; Conklin v. New York, etc. Ry. Co., 102 N. Y. 107, 6 N. E. 663. Accordingly, many courts deny damages for changes in grade through the construction of a railroad crossing. Rauenstein v. New York, etc. Ry. Co., 136 N. Y. 528, 32 N. E. 1047; Atchison, etc. R. Co. v. Arnold, 52 Kan. 729, 35 Pac. 780. Certainly there is no less a street after the change. City of New Haven v. New York & New Haven R. Co., 39 Conn. 128; Louisville Steam Forge Co. v. Mehler, 112 Ky. 438, 64 S. W. 652. Yet, since the necessity is for the accommodation of a distinct line of travel, not for any additional utility in the street itself, the better opinion and the probable weight of authority support the principal case. Buchner v. Chicago, etc. Ry. Co., 56 Wis. 403, 60 Wis. 264, 14 N. W. 273, 19 N. W. 56; Perrine v. Pennsylvania R. Co., 72 N. J. L. 398, 61 Atl. 87. The doctrine extends to all subsequent improvements necessary to preserve the utility of a preexisting street. Burritt v. City of New Haven, 42 Conn. 174. In the construction of a new street, however, a crossing would seem to be a necessary part. Cf. Northern Central Ry. Co. v. Mayor, etc. of Baltimore, 46 Md. 425; City of Chester v. Philadelphia, etc. R. Co., 3 Walk. (Pa.) 368. If so, its subsequent alteration apparently involves no new burden on adjoining land. Contra, Egbert v. Lake Shore, etc. Ry. Co., 6 Ind. App. 350, 33 N. E. 659.

EXECUTORS AND ADMINISTRATORS RIGHTS, POWERS, AND DUTIES - AcCOUNTABILITY FOR ACQUISITIONS FROM LEGATEE. - Before legacies were payable, after a legatee had given him a power of attorney to pledge or assign her legacy of $2381.25 for $2000, the executor advanced that sum to her from his own money. When he discharged the legacy she returned the balance in recognition of the accommodation. Held, that the executor is liable to account to the estate for the balance, minus legal interest on the amount loaned. Matter of De Vany, 147 N. Y. App. Div. 494, 132 N. Y. Supp. 582. Like other fiduciaries, an executor is not allowed to transfer interest in the estate. Michoud v. Girod, 4 How. (U. S.) 503. tions, however, are not void, but voidable by the beneficiaries. v. McKnight, 11 N. J. L. 385; Remick v. Butterfield, 31 N. H. 70. directly from an individual beneficiary cannot be avoided if the executor sustains the burden of proving the transaction equitable. State ex rel. Jones v. Jones, 131 Mo. 194, 33 S. W. 23. Cf. Brown v. Cowell, 116 Mass. 461. See I PERRY, TRUSTS AND TRUSTEES, 6 ed., § 205. In any event, the other beneficiaries cannot avoid it. See Clark v. Jacobs, 56 How. Pr. (N. Y.) 519, 522. But cases confuse this with the question whether they can hold the executor

to himself any
Such transac-
Den d. Hance
A purchase

as constructive trustee. Peyton v. Smith, 22 N. C. 325; Hale v. Aaron, 77 N. C. 371. They cannot, against the right of the vendor to avoid. Barton v. Hassard, 3 Dr. & War. 461. But, irrespective of actual fraud, the danger in a conflict of interest requires that all profits from discounting the claims of creditors should accrue to the estate. Woods v. Irwin, 163 Pa. St. 413, 30 Atl. 232; Cox v. John, 32 Oh. St. 532. The executor is equally acting within his duties and under the advantage of his official knowledge when buying at a discount the claims of legatees. Lovett v. Morey, 66 N. H. 273, 20 Atl. 283. There seems to be no reason for a different rule. Contra, Peyton v. Smith, supra; Hale v. Aaron, supra. Finding that the transaction was not a gift but a payment on account of the advancement, the court in the principal case probably reached the correct result.

INSURANCE FIDELITY INSURANCE - VARIATION OF RISK. A bond executed by the defendant to secure the plaintiff bank against loss incurred through employing X. as assistant cashier contained a provision "that the employé can perform other duties than those properly belonging to the position mentioned . . . without notice . . . to the company." After the bond was executed, X. acquired a majority of the stock of the bank, and became a director and cashier. He then defaulted. Held, that the defendant is discharged from liability on the bond. Farmers' & Merchants' State Bank v. United States Fidelity & Guaranty Co., 133 N. W. 247 (S. D.).

The equitable defense based on variation of risk by reason of a material change in the employee's duties is waived in this case by the clause in the bond. Fidelity and Casualty Co. v. Gate City National Bank, 97 Ga. 634, 25 S. E. 392; Champion Ice, etc. Co. v. American Bonding & Trust Co., 115 Ky. 863, 75 S. W. 197. Contra, National Mechanics' Banking Association v. Conkling, 90 N. Y. 116. The contract of insurance is a personal one. See FROST, GUARANTY INSURANCE, 2 ed., § 113 (E). A change in the personality of the insured, a change in partnership, or from a partnership to a corporation, would give a defense. Dance v. Girdler, 1 B. & P. N. 34; Dry v. Davy, 10 A. & E. 30. But though the membership of a corporation is always changing, the corporation remains the same. Cf. London, etc. Ry. Co. v. Goodwin, 3 Exch. 320. The majority of the court rest their decision on the ground that the subsequent acquisition of a majority of the stock by the employee brought about a situation not contemplated by the parties, in which it would be unconscionable to continue to hold the surety to his legal obligation without giving notice. No cases have been found to support the decision. Where the risk is increased through no act of the obligee, the cases go no further than to give a defense when the employee is retained in service after knowledge of his dishonesty. Phillips v. Foxall, L. R. 7 Q. B. 666; Watertown Fire Ins. Co. v. Simmons, 131 Mass. 85. It is submitted that the facts of the principal case do not warrant a further imposition of affirmative duties on the insured.

INTERSTATE COMMERCE — INTERSTATE COMMERCE COMMISSION POWER TO DENY REPARATION ON GROUND OF LACHES. A shipper sought reparation through the Interstate Commerce Commission for excessive freight charges. The commission found that the rate charged was unreasonable, but denied relief for all charges previous to the filing of the complaint on the ground of laches. Held, that it cannot deny relief on such a ground. Russe v. Interstate Commerce Commission, U. S. Commerce Ct., Feb. 13, 1912.

The Interstate Commerce Commission derives all its powers from the Interstate Commerce Act of 1887 and its supplements, and can exercise no powers which are not given it thereby. See BEALE & WYMAN, Railroad Rate REGULATION, 1034. In considering a complaint its sole consideration must be whether or not the situation which the carriers have created violates that act.

See New York Produce Exchange v. Baltimore & Ohio R. Co., 7 Interst. C. Rep. 612, 658. Thus, the commissioners have no power to declare a rate unreasonable on the ground that the carrier has estopped itself from making a raise by a long-continued lower rate. Southern Pacific Co. v. Interstate Commerce Commission, 219 U. S. 433, 31 Sup. Ct. 288. If they proceed in a federal court to enforce their order, they are not prejudiced by the fact that the original complainant came before them with unclean hands. Interstate Commerce Commission v. Southern Pacific Co., 132 Fed. 829. Nor can the fact that the shipper has been engaged in an unlawful combination bar his right to relief at the hands of the commission. Tift v. Southern R. Co., 10 Interst. C. Rep. 548. The act allows the shipper two years in which to file his complaint. U. S. COMP. STAT., SUPP. 1909, 1159. It seems an unwarranted assumption of authority for the commission to shorten the time expressly allowed by the very act which it was created to enforce.

JUDGMENTS - OPERATION AS BAR TO OTHER ACTIONS -EFFECT OF JUDGMENT AS JUSTIFICATION FOR ACTS DONE BEFORE ITS REVERSAL. A decree that the defendant was entitled to a certain amount of the water of a stream was reversed on an appeal by the plaintiff. The undertaking given on appeal did not stay the operation of the decree. After the rendering of the decree and before its reversal the defendant used the amount of water allowed by the decree. Held, that the plaintiff cannot recover for damage to his land caused thereby. Porter v. Small, 120 Pac. 393 (Or.).

It seems to be well settled that no action in tort will lie for acts done in pursuance of an erroneous judgment, subsequently reversed. Where the alleged tort is false imprisonment, no tort is committed, since irregularity in the legal process is an element of the wrong. Simpson v. Hornbeck, 3 Lans. (N. Y.) 53; Williams v. Smith, 14 C. B. N. s. 596. In other cases, however, by the reversal the acts done are subsequently proved wrongful; yet the fact that they are done in pursuance of a legal judgment is regarded as a justification. Loring v. Steineman, 42 Mass. 204; Thompson v. Reasoner, 122 Ind. 454, 24 N. E. 223. Cf. Day v. Bach, 87 N. Y. 56. To allow the action would involve the assumption that a valid judgment is not a foundation of rights. Bridges v. McAlister, 106 Ky. 791, 51 S. W. 603. Cf. Mark v. Hyatt, 135 N. Y. 306, 31 N. E. 1099. Though this may work a hardship on the defendant, he may protect himself by getting a stay of execution, on giving a proper bond. But it seems also well settled that the defendant must restore any profit he may have made, since it is not equitable for him to keep it. Lott v. Swezey, 29 Barb. (N. Y.) 87; Travellers' Ins. Co. v. Heath, 95 Pa. St. 333. In the principal case, however, the question of restitution was not presented.

LEGISLATURES RIGHT OF SPEAKER TO PREVENT DISORDER BY COMPELLING ATTENDANCE OF MEMBER. A member of a colonial legislative assembly left the chamber in a disorderly manner. As a necessary measure, to prevent further disorder, the speaker had the sergeant-at-arms bring him back and admonished him. Held, that the speaker is liable in an action for false imprisonment. Perry v. Willis, 11 N. S. W. S. R. 479.

A colonial legislative assembly has no inherent power to punish either a stranger or one of its members for contempt. Kielley v. Carson, 4 Moore P. C. 63; Doyle v. Falconer, 4 Moore P. C. N. s. 203. Every legislative assembly, when duly constituted, has the power to compel the attendance of its members. See CUSHING, LAW & PRACTICE OF LEGISLATIVE ASSEMBLIES, 2 ed., § 264. A member who is guilty of disorderly conduct in the assembly may be removed by order of the assembly. See Doyle v. Falconer, supra, 219, 220. It has been held that this power of removal is impliedly delegated to the speaker as necessarily incident to his office as presiding officer. Toohey

v. Melville, 13 N. S. W. L. R. 132. See Lucas v. Mason, L. R. 10 Exch. 251, 254. It is not certain that the assembly could compel the attendance of a member to be reprimanded rather than to aid in its legislative functions. But conceding this power in the assembly, it is not such a needful incident to the office of the speaker that it can fairly be said to be delegated to him in the absence of an express authorization. The result reached by the court in the principal case is thus, it seems, correct.

LICENSES LICENSOR'S LIABILITY TO LICENSEE AFFIRMATIVE NEGLIGENT ACTS. The plaintiff, in common with the public, had for many years used a road across the defendant's premises, on which a quarry had gradually been enlarged in the direction of the roadway. The excavation was then rapidly advanced toward and across the road without the plaintiff's knowledge. The plaintiff, while walking on the road at night, fell into the quarry and was injured. Held, that he cannot recover. Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240, 97 N. E. 497.

Continuous use of a private way by members of the public makes them no more than bare licensees. Stevens v. Nichols, 155 Mass. 472, 29 N. E. 1150. Cf. Hounsell v. Smyth, 7 C. B. N. S. 731. Contra, Hanson v. Spokane, etc. Water Co., 58 Wash. 6, 107 Pac. 863. The landowner owes to licensees no duty to make the premises safe. Gautret v. Egerton, L. R. 2 C. P. 371. It has been held that he is liable to them only for wilful injury. Illinois Central R. Co. v. Godfrey, 71 Ill. 500; Dixon v. Swift, 98 Me. 207, 56 Atl. 761. Since, however, the presence of licensees is foreseeable, most courts hold that property-owners must refrain from acts likely to injure them. Corrigan v. Union Sugar Refinery, 98 Mass. 577; Felton v. Aubrey, 74 Fed. 350. A distinction has been made between directly bringing force to bear against licensees and altering the condition of the premises without taking proper precautions, which has been held a mere omission. Nicholson v. Erie Ry. Co., 41 N. Y. 525. See Byrne v. New York, etc. R. Co., 104 N. Y. 362, 366, 10 N. E. 539, 540. Alteration, however, is certainly affirmative action, and if calculated to injure licensees, is negligence towards them. Corby v. Hill, 4 C. B. N. s. 556; Rooney v. Woolworth, 78 Conn. 167, 61 Atl. 366. The landowner, however, may properly assume that they will foresee the gradual changes likely to be made in the ordinary course of business. M'Cann v. Thilemann, 36 N. Y. Misc. 145, 72 N. Y. Supp. 1076. Where, however, the alteration, as in the principal case, is made suddenly and without warning, it would seem that the defendant should be liable. Cf. Carskaddon v. Mills, 5 Ind. App. 22, 31 N. E. 559.

MANDAMUS - PARTIES - RIGHT OF PRIVATE CITIZEN TO COMPEL ISSUANCE OF WARRANT FOR ARREST. - The petitioner, a private individual, sought by mandamus proceedings to compel a justice of the peace to issue a warrant for arrest on a criminal charge of baseball playing on Sunday. Held, that he is not a proper relator. Nichelson v. State ex rel. Blitch, 57 So. 194 (Fla.). By the weight of authority any member of the public may institute proceedings in mandamus on a matter of public interest without showing any special interest in himself. People ex rel. Case v. Collins, 19 Wend. (N. Y.) 56; State ex rel. Ferry v. Williams, 41 N. J. L. 332. The principal case denies the plaintiff the right on the ground that the matter in question is of interest only to the state as sovereign. There is, doubtless, a distinction between matters of interest to the government as such and those of interest to the public. See Berube v. Wheeler, 128 Mich. 32, 35, 87 N. W. 50, 51. But it is submitted that the public is interested in this particular matter. The authorities recognize such an interest in a private citizen to force a magistrate to act in his proper district. State ex rel. Ferguson v. Shropshire, 4 Neb. 411. So also the public is interested in the enforcement of the liquor laws. State ex rel. Ferry v. Williams, supra.