EQUITY - JURISDICTION - POWER TO PUNISH MUNICIPAL CORPORATION FOR CONTEMPT. — An injunction having issued against the municipal corporation of Rochester, its officers, agents, and servants, the city violated the injunction. Held, that the court may, in its discretion, fine the city for contempt. Marson v. City of Rochester, 97 N. Y. Supp. 881.

Independently of authority granted by statute, courts of law of superior jurisdiction have inherent power to punish for contempt. Ex parte Robinson, 19 Wall. (U. S.) 505. And a similar power resides in courts of equity, which are courts of record of superior jurisdiction. Cartwright's Case, 114 Mass. 230. The jurisdiction of equity to enjoin a municipal corporation in a proper case is, moreover, clearly established. Lumsden v. City of Milwaukee, 8 Wis. 485. Therefore the power to punish the corporation in some manner for contempt would seem to follow of necessity. It is true that an old case lays down that where the injunction is addressed exclusively to the corporation, the city cannot be punished for violations of it by its officers. Mayor of London v. Mayor of Lynn, 1 H. Bl. 209. But this case turned on the form of the injunction and not on any want of power in the court. See Davis v. Mayor, etc., of N. Y., 1 Duer (N. Y.) 451, 484. Further, in the absence of statutory restrictions, the court may, in its discretion, either imprison, fine, or discharge the offender. See Ex parte Robinson, supra. Hence it seems clearly within the power of a court of equity to fine a municipal corporation for contempt.

EQUITY JURISDICTION RESTRAINT OF POLICE. Held, that an injunction will issue against police remaining indefinitely upon the premises of the plaintiff when irreparable damage is threatened and there is no reasonable ground for even a suspicion that the plaintiff's business is illegal. Burns v. McAdoo, 113 N. Y. App. Div. 165.

This case distinguishes a recent decision of the New York Court of Appeals, commented upon in 19 HARV. L. REV. 382.

ESTOPPEL ESTOPPEL IN PAIS - OBJECTION TO COURT'S JURISDICTION. – The relatrix asked to be appointed special administratrix of an estate. The court refused her application and appointed another. Held, that, in a review of this order, the relatrix is not estopped from setting up that the court did not have jurisdiction to appoint any one to this office. State v. District Court, 85 Pac. Rep. 1022 (Mont.).

It is well established that the jurisdiction of courts, being fixed by law, cannot be extended by express acquiescence or request of the parties. Matter of Will of Walker, 136 N. Y. 20. Nor can a want of jurisdiction be cured by mere failure to object. Demilly v. Grosenaud, 201 Ill. 272. Accordingly, it would be highly inconsistent to hold that a jurisdiction not authorized by law could be given by the acts of one party, the result attained if an estoppel were allowed in the present case. Such estoppel has been allowed in favor of a party who has acted upon the court's ruling. Carrigan v. Drake, 36 S. C. 354. But the case at hand lacks even this essential element. Yet, in any of these cases, it is difficult to see how a judgment rendered without jurisdiction could be so affected by equitable considerations between the parties as to be cured by an estoppel arising therefrom, since such judgment is void purely as a matter of substantive law. It is on this ground that a void contract is held incurable by estoppel. National Granite Bank v. Tyndale, 176 Mass. 547; see 19 HARV. L. REV. 454. The case at hand, therefore, seems sound and is supported by the majority of cases actually in point. Freer v. Davis, 52 W. Va. I; contra, Lounsbury v. Catron, 8 Neb. 469.

EVIDENCE- DECLARATIONS AS TO PEDIgree Requisite ConnecTION WITH FAMILY. — In an action of trespass to try title to certain land the plaintiff offered in evidence certain declarations of a deceased person as to pedigree. The plaintiff, as a foundation for the admission of the evidence, showed the declarant to be connected with the plaintiff himself, but did not show him to be connected with the party with whom the plaintiff claimed relationship.

Held, that connection with either family is sufficient to render the declarations admissible. Overby v. Johnston, 94 S. W. Rep. 131 (Tex. Civ. App.). See NOTES, p. 142.

EVIDENCE-SIMILAR FACTS AND OCCURRENces - Crimes OTHER THAN ONE IN ISSUE. - The prisoner was charged with murdering by arsenic poisoning one of her household. Evidence that another of the household had recently died from the same cause was admitted, and the jury instructed to consider it only as evidence that there was arsenic in the house. Held, that the evidence is not relevant upon the issue which it was admitted to prove, and that prejudicial error has been committed, even if the evidence be admissible upon other issues. People v. Collins, 107 N. W. Rep. 1114 (Mich.).

Evidence of other crimes of a prisoner has a natural probative value, but when relevant simply as establishing the bad character of the prisoner, is excluded, as the law excludes character evidence in such cases. But when evidence of other crimes is relevant in any other way upon the issues in the case, there is no reason for its exclusion. See Blake v. Albion, etc., Soc., 14 Cox C. C. 246. It is well established that such evidence is admissible upon certain issues, such as motive, intent, and the identity of the person charged; but some tendency has appeared to limit the admission to cases involving these issues. See People v. Molineux, 168 N. Y. 264. This results from the erroneous idea that admission is an exception to a general rule, while in fact admission is the rule, and exclusion the exception. See I WIGMORE, EV., § 216. But in all these cases the relevancy and remoteness of the evidence as regards the issue to prove which it is offered should be closely scrutinized, as here the admission of the evidence, if irrelevant, would greatly prejudice the prisoner. Commonwealth v. Shepard, 1 Allen (Mass.) 575, 581. The principal case seems to be governed by these considerations, and to attain a satisfactory result upon the question of relevancy.

EXECUTORS AND ADMINISTRATORS

RIGHTS, POWERS, AND DUTIES RIGHT TO TRUST FUND HELD BY DECEASED EXECUTOR. A testator directed his executor to invest his personal property and to pay the income therefrom, together with the rents and profits from his real estate, to his children; and, at their death, to turn over the entire property to his grandchildren. Before this trust was executed the executor died. Held, that the administrator de bonis non is entitled to the trust fund. In re Sheet's Estate, 64 Atl. Rep. 413 (Pa.).

It is well settled that an executor may also be a trustee, but his duties in the two capacities are entirely distinct. Lord Brougham v. Lord Poulett 19 Beav. 119. The logical result of this distinction is that the administrator de bonis non should succeed only to the executor's duties as executor, and not to those which the executor was under as trustee. Such is the great weight of authority. Warfield v. Brand's Adm'r, 13 Bush (Ky.) 77; contra, Mathews, Adm'r, v. Meek, 23 Oh. St. 272. The court in the principal case intimates that it was the testator's intention that this trust should attach to the office of executor, and was to be enforced by any subsequent administrator. If such were the fact, the case might possibly be supported. But there were no particular facts showing that intention, and to find it here would result in making a rule that the trust should be attached to the office, wherever an executor is directed to act as trustee, a very undesirable result. The opinion fails to cite two wellconsidered cases in the same jurisdiction, which on practically similar facts adopt no such construction and reach an opposite result. Ross v. Barclay, 18 Pa. St. 179; Waters v. Margerum, 60 Pa. St. 39.

GIFTS GIFTS CAUSA MORTIS GIFT RETURNED TO DOMINION OF DONOR BEFORE HIS DEATH. The plaintiff, at the request of the deceased, took a tin box from its place in the closet and brought it to the deceased. The latter took therefrom four bank-books and presented them to the plaintiff as a gift causa mortis. The plaintiff put the bank-books back into the tin box, returned it to the closet, locked the door, and put the key back in its usual

place in the deceased's dresser. Nothing was touched until after the donor's death, four days later. Held, the facts do not show a gift causa mortis. Parker v. Copland, 64 Atl. Rep. 129 (N. J., Ct. Err. and App.).

It

In gifts causa mortis there must be a delivery which deprives the donor of all control over the subject of the gift. Baskett v. Hassell, 107 U. S. 602. is also agreed that, because of the great danger of fraud and perjury, there should be no relaxation of the safeguards thrown around such gifts. See Hatch v. Atkinson, 56 Me. 324. In the case at hand there had, indeed, been a manual delivery of the gift, but since it was immediately restored to its former position, it cannot be said to have been placed beyond the control of the donor. Further, the fact of the gift here must needs be shown by evidence rather than by possession, which is the very thing that the rule as to delivery is designed to avoid. The decision, therefore, seems eminently sensible, and the few cases in point are in accord. Bunn v. Markham, 7 Taunt. 223; Dunbar v. Dunbar, 80 Me. 152.

JUDGES DISQUALIFICATION ING NO PART. - Upon an appeal to quarter sessions from an order of justices refusing to renew a license, two of the justices who had been present and had taken part in the licensing meeting whose order was appealed from, sat on either side of the chairman and retired with the other justices when they withdrew to consider their decision, but did not vote or take part in the discussion. Held, that the proceedings are thereby invalidated and that the appeal must be reheard. Rex v. Lancashire Justices, 94 L. T. 481 (Eng., K. B. D., Jan. 12, 1906).

- Interested Members SITTING BUT TAK

as

It is of the essence of judicial administration that there should be no appearance or suspicion of bias. Queen v. Justices of Hertfordshire, 6 Q. B. 753. Reasonable apprehension of bias based on interest is sufficient to disqualify, where the justice sitting was a member of the limited class of qualified pilots specially protected by the penal act under which the defendant was being tried. Queen v. Huggins, [1895] 1 Q. B. 563. But mere possibility of bias, based on the fact that the justice was trustee for a person whose security for a loan might be increased in value by the result of the order, was held not to invalidate. Queen v. Rand, L. R. 1 Q. B. 230. Nor, in general, will the doctrine of disqualifying interest be pushed to extremes. Leeson v. General Council, 43 Ch. D. 366. Hence, in the absence of statutory or constitutional provision, the court's assumption in the present case that a judicial officer is ipso facto disqualified from passing upon an order participated in by himself in a lower court, is unsound. Pierce v. Delameter, 1 N. Y. 17. The construction of English judicature refutes this idea. If, however, in this case, under English practice the justices might be liable for costs as nominal respondents on the appeal, the court's assumption is correct. Queen v. Justices of Hertfordshire, supra. But the facts contain no such intimation.

LIBEL AND SLANDER PRIVILEGED OCCASION MALICE IN FAIR COMMENT. The defendant published in Punch a criticism of a book written by the plaintiff. The plaintiff brought suit for libel, and sought to introduce extraneous evidence of malice to rebut the defense of fair comment. Held, that the evidence is admissible. Thomas v. Bradbury, Agnew, & Co., [1906] 2 K. B. 627.

It is well settled that every author subjects himself to fair comment. See Sir John Carr v. Hood, 1 Camp. 355 n.; 11 HARV. L. REV. 53. Great severity of criticism is allowed when the personal character of the author is not attacked. Cherry v. Des Moines Leader, 114 Ia. 298. But no personal attack will be permitted. Triggs v. Sun Printing & Pub. Ass'n, 179 N. Y. 144. Recently evidence of the writer's state of mind has been admitted as bearing on the fairness of the comment. Plymouth, etc., Soc. v. Traders' Pub. Ass'n, [1906] I K. B. 403. And it has been intimated that evidence of malice might rebut the defense of fair comment when otherwise valid. See Cherry v. Des Moines Leader, supra. But it has been left to the present case, by admitting extrinsic evidence of malice expressly on this ground, to decide the point squarely, and

thus to put fair comment on the same basis as the ordinary conditionally privi leged statement. The decision seems correct on the ground that fair comment is a privilege based on public policy. Although it is policy to allow the honest critic the greatest freedom of comment, criticism impelled by malicious motives has no just claim to the privilege.

LIBEL CRIMINAL Libel CORPORATION AS SUBJECT. Held, that a corporation cannot be the subject of a criminal libel. Commonwealth v. Cochran, 23 Lanc. L. Rev. 267 (Pa., Ct. Quar. Sess., Lanc. Co., May 26, 1906). The tendency to cause a disturbance of the peace is generally regarded as the essence of criminal libel. State v. Burnham, 9 N. H. 34. Though a corporation as a distinct entity would be incapable of a breach of the peace, its members might naturally become aroused, and others might be incited against them as members. It has been held that a corporation may be indicted for libel. State v. Atchison, 3 Lea (Tenn.) 729. There should be as much reason to anticipate a disturbance of the peace when a corporation is the subject of libelous utterances as when it itself is guilty of them. Taking another point of view, it is recognized that a corporation may be either the subject or responsible author of a civil libel. So. Hetton Coal Co. v. N. E. News Ass'n, [1894] 1 Q. B. 133; Citizens' Life Assurance Co. v. Brown, [1904] A. C. 423. As libel is a crime at common law, it would seem to follow that a corporation may be the subject of a criminal libel. No cases squarely on the point have been found except in Missouri. That court, with apparent propriety, holds contra to the present decision. State v. Boogher, 3 Mo. App. 442. Cf. State v. Williams, 85 Pac. Rep. 938 (Kan.).

LICENSES LICENSOR'S LIABILITY TO LICENSEE - DUTY ON RAILROAD COMPANY OF Prevision. A count in a declaration stated that the defendant negligently ran down the plaintiff's intestate, a licensee on its tracks, and that by looking ahead the decedent could have been seen and the accident avoided. Held, that the count is demurrable for the reason that the defendant is under no duty of prevision to a bare licensee. Norfolk & W. Ry. Co. v. Stegall's Adm'x, 54 S. E. Rep. 19 (Va.).

It is settled that the owner is under no liability to a bare, uninvited licensee to keep the premises in a safe condition. But such licensee does not take the risk of the licensor's superadded negligence actively brought to bear upon him, whether by acts of omission or commission. Davis v. Chicago & N. W. Ry. Co., 58 Wis. 646. The licensor has even sometimes been held liable for passive negligence if the instrument of the injury was known by him to be dangerous and no warning was given. Harriman v. Pittsburg, C. & St. L. Ry. Co., 45 Oh. St. II. And by the weight of authority a railway company owes a licensee the duty of prevision. Nuzum v. Pittsburg, C. & St. L. Ry. Co., 30 W. Va. 228; contra, Baltimore & Ohio Rd. Co. v. Schwindling, 101 Pa. St. 258. It is only reasonable that, so far as is consistent with the railway's paramount duty to protect the lives and property on the train, it should use ordinary care to anticipate and discover that which it has seen fit to permit. Even as to trespassers the same rule applies if their presence can be reasonably anticipated, that is, if it is culpably unknown. Roth v. Union Depot Co., 13 Wash. 525. The present case seems to overrule a previous decision in the same jurisdiction, while citing it with approval. Cf. Williamson v. Southern Ry. Co., 104 Va. 146.

PAUPERS-SUPPORT, SERVICES, AND EXPENSES LIABILITY OF PAUPER AND PAUPER'S ESTATE. A pauper had been maintained by the plaintiffs in accordance with a statutory duty for nearly five years, at an expense of £87 178. Subsequently the pauper came into possession of a considerable amount of money. Held, that plaintiffs may recover from the pauper, on common law principles, the amount expended during the entire period. Birkenhead Union v. Brookes, 70 J. P. 406 (Eng., K. B. D.. May 25, 1906).

The present decision is in harmony with the current of English authority. Prior English cases have allowed recovery from an insane person cared for by local

authorities.

Westham Union v. Pearson, 54 J. P. 645. Reimbursement from an infant pauper subsequently acquiring property has also been permitted. In re Clabbon, [1904] 2 Ch. 465. These decisions evidently control the case of an adult sane pauper, since ability to contract in fact, as the court points out, can be no obstacle to the liability presumed by law. American decisions, however, have refused to recognize any common law liability on the part of a pauper subsequently acquiring property. Charlestown v. Hubbard, 9 N. H. 195. Even where the pauper was possessed of property at the time the expenses were incurred, recovery from him, in the absence of fraud, was refused. Stow v. Sawyer, 3 Allen (Mass.) 515. The position of the American courts is based on the conception that expenditures for paupers constitute a gift, and therefore do not form a proper basis for the legal implication of liability on quasi-contractual grounds. By statute, however, in America as well as in England, provision is quite commonly made for some recovery from the pauper's property. Kennebunkport v. Smith, 22 Me. 445.

PHYSICIANS AND SURGEONS NECESSITY OF PATIENT'S CONSENT TO OPERATION ·OPERATION ON MINOR. A boy seventeen years old consented, with the concurrence of several adult relatives present, to an operation to remove a tumor from his ear. He died under the anææsthetic. His father sued for damages as the personal representative of his deceased son, on the ground that his consent had not been obtained. Held, that, in the absence of negligence on the part of the surgeon, he cannot recover. Bakker v. Welsh, 108 N. W. Rep. 94 (Mich.).

It is conceded law that consent makes a surgical operation lawful. See STEPHEN, DIG. CRIM. LAW, Art. 225. But consent alone is not enough to justify what is clearly an aggravated battery. Bell v. Hansley, 3 Jones (N. C.) 131. The true justification for such an act must be found in public policy, which demands that a surgeon operate where it is proper for him to do so, though consent will generally be an important or controlling factor in determining the reasonableness of the operation. But the consent to be significant should be given by one of years of discretion. Ordinarily, therefore, the consent of the parent should precede an operation upon a child; but if the child consents, and is, though a minor, in fact of years of discretion, the consent of the parent, especially if other circumstances combine to make action by the surgeon reasonable, should not be essential. The various legal disabilities of an infant have no bearing on his actual discretion in such matters any more than in the case of a married woman, who may by her consent justify a surgeon in operating upon her against her husband's will. State, use of Janny v. Housekeeper, 70 Md. 162.

RESTRAINT Of Trade-CONTRACTS Not to ENGAGE IN CERTAIN BUSINESS DIVISIbility of Restricted AREA. - The defendant contracted with the plaintiff not to engage in the plaintiff's line of business "at any place within a radius of thirty miles from either the Townhall at Bournemouth or the Bargate at Southampton." These places being about thirty miles apart, the circles overlapped. Held, that the language is not capable of being construed as defining separate areas, and being as a whole unreasonable, the contract is bad. Hooper & Ashby v. Willis, 94 L. T. R. 624 (Eng., Ct. App., April, 1906).

It is settled that a contract in restraint of trade, unreasonable as a whole, will, if the language permits, be construed as severable and enforced within such smaller defined limits as are reasonable. Peltz v. Eichele, 62 Mo. 171. If smaller limits are not defined by the contract itself, the court cannot say how much is reasonable restraint and enforce that. Althen v. Vreeland, 36 Atl. Rep. 479 (N. J. Ch.). The result in the present English case seems wrong. If, because the circles overlap, only one area is defined, then a contract reading "in London or within 600 miles thereof " should be inseparable, since the unreasonable area cannot be wholly rejected while leaving the other entire. But that contract was held separable. Price v. Green, 16 M. & W. 346. Further, if the contract is to be construed, as it ought, from the language alone, regardless of the geographical position of the circles, the same conclusion should be reached whether the circles intersect or not. To say, as the court intimates, that the word "either"