injury caused by snow and ice upon its streets, unless written notice of these conditions had been given before the injury. Held, that this provision is not in violation of the constitutional guaranty against the deprivation of life, liberty, or property, without due process of law. MacMullen v. City of Middletown, 79 N. E. Rep. 863 (N. Y.).

For a criticism of the decision in the lower court, here reversed, see 19 HARV. L. REV. 618.

CONSTITUTIONAL LAW - OPERATION OF CONSTITUTIONS STATUTE UNCONSTITUTIONAL IN PART. A statute provided that no county should tax at more than a certain per cent, but counties A and B were excepted. The state asked a writ of mandamus to prohibit county C from taxing in excess of this rate. Held, that the writ be granted, for though the exception of counties A and B is unconstitutional, yet the rest of the statute is not therefore invalid, since the exception can be struck out. State ex rel. Dillon v. Braxton County Court, 55 S. E. Rep. 382 (W. Va., Ct. App.).

That part of a statute may be valid and part invalid is well settled. But the cases seem to offer two somewhat contrary tests to determine when the part not struck out should stand alone. One is that it must conform to what was the legislature's intent in passing it. The other is that, though by itself it does not so conform, it is nevertheless valid if the court thinks that the legislature would have passed it alone rather than not have had it at all. The former test is supported by most authority on actual decisions, though the language commonly used confuses the two. Spraigue v. Thompson, 118 U. S. 90; Burkholtz v. State, 16 Lea (Tenn.) 71. The latter, illustrated by the principal case, has some precedents, which do not seem to consider the grave danger of judicial legislation in a court undertaking to say what a legislature would have done. People v. Knopf, 183 Ill. 410, 422; State v. Baker, 55 Oh. St. 1. The present decision extends the legislature's intent beyond the limit it expressly set. a contrary decision would invalidate a whole system of taxation would be unfortunate, but not a justification for this result. State v. Supervisors, 62 Wis. 376.

That

CONSTITUTIONAL LAW - TRIAL BY JURY - Right to PUBLIC TRIAL. During the recital of immoral and obscene testimony the trial judge excluded from the court-room all persons except the defendant and one of his witnesses, the jury, officers of the court, members of the bar, and newspaper men. Held, that the defendant's constitutional right to a public trial has been violated. State v. Hensley, 79 N. E. Rep. 462 (Oh.). See NOTES, p. 489.

CORPORATIONS CORPORATE POWERS AND THEIR EXERCISE INJUNCTION BY MINORITY STOCKHOLDER AGAINST SALE OF STOCK TO ANOTHER

CORPORATION. - A telephone company, in pursuance of an unlawful plan to create a monopoly, bought up a majority of the shares of a competing corporation. A stockholder in the second corporation filed a bill against both corporations, seeking to restrain the transfer of the stock on the books of his own corporation, and also the voting on such stock by the purchaser. Held, that the prayer of the bill be granted. Dunbar v. American Tel. and Tel. Co., 79 N. E. Rep. 423 (III.).

Any purchase by one corporation of stock in another to restrain trade is universally held ultra vires of the buyer. Thus in the present case a stockholder of the buying corporation would have been granted equitable relief. Farmers' Loan and Trust Co. v. N. Y., etc., R. R., 150 N. Y. 410. And where, as here, the purchase achieves an illegal result, the corporation whose stock is held, equally with the corporation holding, may be dissolved by the state. People v. North River, etc., Co., 121 N. Y. 582. Thus the stockholder of the selling corporation has a lively interest, which equity here recognizes, in preventing such a possibility. Harding v. American Glucose Co., 182 Ill. 551. If, however, the holding, though ultra vires, is not illegal, the state will not dissolve the corporation whose stock is held, and so the mere purchase should not be ground for equitable relief. Milbank v. N. Y., etc., R. R. Co., 64 How.

Prac. (N. Y.) 20. But if the buying corporation attempts to vote on the stock, the tendency of its vote is manifestly to favor its own plans even at the expense of the other, and a stockholder of the latter should be allowed to enjoin the voting. Milbank v. N. Y., etc., R. R. Co., supra; but see Oelbermann v. N. Y., etc., R. R., 27 N. Y. Supp. 945; aff. 29 N. Y. Supp. 545

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COURTS PLEA THAT COURT NOT LEGALLY ORGANIZED. In the court below the defendant filed "a plea to the jurisdiction of the court," alleging that "this court is without lawful constitution" since the commission to the judge was invalidly issued. Held, that the lower court was correct in overruling the plea. State v. Hall, 55 S. E. Rep. 806 (N. C.).

This decision is put upon the ground that "no court can pass upon the valid ity of its own constitution and organization." It is reasoned that the defendant has called upon the lower court to exercise a judicial function in denying its own existence, whereas by the nature of his plea he avers that, having no existence in law, it has no such function. See Beard v. Cameron, 3 Murph. (N. C.) 181; cf. Koehler and Lange v. Hill, 60 Ia. 543, 603. This philosophy seems rather extraordinary. Logically applied it produces the result that the invalidity of the highest court in any jurisdiction, be it never so unquestionable, can in no way be judicially adjudged. The fallacy in the reasoning is, of course, apparent while the invalidity of the judge's commission may prevent his constituting a de jure court, he forms, at least, a de facto court. See State v. Lewis, 107 N. C. 967. Obviously nothing in rerum natura prevents such a court's passing on its own validity as on other questions. The result of the present decision, however, seems quite correct; for the law is apparently settled that the authority of a de facto judge cannot be attacked collaterally. Clark v. Commonwealth, 29 Pa. St. 129; In re Manning, 139 U. S. 504.

CRIMINAL LAW - FORMER JEOPARDY IMMATERIAL VARIANCE. — In a former trial the defendant asked for a direction for acquittal on the ground of a variance. The judge, erroneously believing the variance material, directed the acquittal. Held, that the defendant was once in jeopardy and cannot be tried again for the same offense. Drake v. Commonwealth, 96 S. W. Rep. 580 (Ky.).

As the proof offered to support the second indictment would have supported a conviction under the first, the defendant was technically in double jeopardy. See I BISHOP, CRIM. LAW, § 1052. But a defendant by his acts may put himself in such a position that he will not be allowed to set up his former jeopardy. Thus, although a defendant has been tried under a valid indictment, if by his motion the indictment is quashed or an acquittal directed because of a supposed defect in the indictment, he is not allowed to plead that jeopardy as a bar to another trial for the same offense. United States v. Jones, 31 Fed. Rep. 725; cf. People v. Casborus, 13 Johns. (N. Y.) 351. It seems that the same result should follow when at the defendant's request the judge directs an acquittal because of an alleged but non-existent material variance. People v. Meakim, 61 Hun (N. Y.) 327; Carroll v. State, 98 S. W. Rep. 859 (Tex.); contra, People v. Terrill, 132 Cal. 497. In both situations the actual jeopardy was ended by a ruling made at the defendant's request for causes which if true would have rendered the first trial no bar to another trial on a correct indictment. The refusal to allow this former jeopardy to be pleaded is based on estoppel or, more properly, waiver.

EASEMENTS SEVERANCE AND TRANSFEr of Right-RESERVATION BY GRANTOR OF DOMINANT TENEMENT OF RIGHT OF ACTION FOR INFRINGEMENTS. The owner of the fee, after instituting an action against the defendant for the infringement of easements appurtenant by permanent structures, sold the fee, reserving this right of action. Therein she subsequently recovered fee damages. After several mesne conveyances with similar reservations, the plaintiff, knowing all the facts, purchased the fee; but whether before or after the defendant's payment of fee damages did not appear. Held, that the plaintiff cannot maintain action against the defendant for the infringement of the easements. Friedman v. New York, etc., R. R. Co., 52 N. Y. Misc. 20.

Logically following the New York doctrine in this sort of easement case, the court denied the plaintiff a right of action because he would be obliged to hold any sums which he might be allowed to recover, as trustee for the original grantor, and in this case that cestui had already received all to which he was entitled. See 20 HARV. L. REV. 136. If the comments on this doctrine, made in the note just cited, be sound, a more natural solution of the problem in cases where, as here, the parties do not attempt to reserve to the grantor the easement itself, but merely intend that he shall have the privilege of suing for infringements thereof, seems found in construing the words of reservation, whenever possible, as an agreement by the grantee as owner of the dominant tenement to give the grantor a power of attorney to sue for the infringements for his own benefit. Subsequent purchasers of the land with notice of the agreement would then be held bound in equity to give a similar power of attorney; and the payment of permanent fee damages to the original grantor would extinguish the easement.

ELECTIONS QUALIFICATION OF VOTERS INMATES OF NATIONAL SOLDIERS' HOMES.-Congress created a corporation the object of which was to erect and maintain national soldiers' homes. The board of managers were to be government officers and appointees, and the necessary funds were to be supplied from the United States Treasury. The corporation purchased land and the state legislature ceded jurisdiction over the land to the United States, with a proviso that the inmates of the home should not be denied the right to vote. Held, that the inmates are not residents of the state, and therefore under the state constitution are not entitled to vote. State v. Willet, 97 S. W. Rep. 299 (Tenn.).

Land purchased by the United States with the consent of the state for the erection of forts, dockyards, and other needful buildings, as provided by the Constitution, is under the exclusive jurisdiction of the federal government, and persons residing on it do not acquire a local residence. See Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 525. Cases like the present have, however, been distinguished because soldiers' homes are not "needful buildings" and because the land is held in the name of the corporation. For these reasons a statute ceding jurisdiction has been construed as giving merely concurrent jurisdiction. In re Kelly, 71 Fed. Rep. 545. Under this construction an inmate of a soldiers' home might properly acquire local citizenship. But as soldiers' homes are incidental to the war power, and as the difference in title does not affect the use to which the land is to be put, that construction seems unsound. Sinks v. Reese, 19 Oh. St. 306; Foley v. Schriver, 81 Va. 568. But even granting that the land be within state jurisdiction, it is very seldom that persons living at a charitable home have the requisite intent to acquire residence where such institution is located. Silvey v. Lindsay, 107 N. Y. 55.

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EMINENT DOMAIN - WHEN PROPERTY TAKEN - POLLUTION OF NAVIGABLE STREAM. -A canal company, operating under the right of eminent domain, constructed a canal for navigation purposes from the sea to a freshwater navigable stream which the plaintiff, an upper riparian proprietor, used for irrigation. The canal caused the salt water to flow in with the tide, and as a result of the use of this water the plaintiff's crops were destroyed. Held, that the sovereign rights of the state are no bar to the plaintiff's recovery. Bigham Bros. v. Port Arthur Canal & Dock Co., 97 S. W. Rep. 686 (Tex., Sup. Ct.). The common law rule that the sovereign owns the soil of navigable waters has long been recognized. Riparian rights on navigable streams are, however, so variant in different localities, that they are said to be governed by local law. See Shively v. Bowlby, 152 U. S. 1; 18 HARV. L. REV. 341. Consequently authorities conflict as to whether damages are recoverable for injurious affections of tide waters caused by those acting under the right of eminent domain. See 14 HARV. L. REV. 158. Some courts, denying recovery in such cases, allow it to owners above the point of navigability. Simmons v. Mayor of Paterson, 60 N. J. Eq. 385. This is illogical and theoretically wrong. The real reason for riparian rights is the contiguity of land and stream, not unity of ownership.

See Lyon v. Fishmonger's Company, L. R. 1 App. Cas. 662. By the better anthority the riparian owner has a right to use waters of navigable and nonnavigable streams alike, so far as is consistent with the sovereign ownership of soil beneath the navigable water. He has a property right to have the waters flow as usual, unpolluted by back-water or tide, and may recover for a violation of this right. Morrill v. St. Anthony Falls Water Power Co., 26 Minn. 222; see Barret v. Metcalf, 12 Tex. Civ. App. 247.

EQUITABLE ELECTION - GIFT BY DEVISEE TO HEIR. A testatrix, who held a half interest with her husband, devised her interest to him. He conveyed parcels of the estate to the children and heirs of the testatrix. After his death they petitioned to have the will of their mother set aside. The defendants contended that the children, having accepted these gifts, were estopped from maintaining the invalidity of the will. Held, that the doctrine of equitable election is not applicable. Holland v. Couts, 98 S. W. Rep. 236 (Tex., Sup. Ct.).

When a testator leaves property to A and at the same time leaves some of A's property to B, then A, if with knowledge of the devise to B he accepts the benefits under the will, is by the doctrine of equitable election precluded from defeating the will by claiming his property which was left to B. Streatfield v. Streatfield, Cas. t. Talb. 176. The doctrine is put on the ground of an implied condition to this effect. Noys v. Mordaunt, 2 Vern. 581. This rule has also been applied to deeds. Bigland v. Huddleston, 3 Bro. Ch. *285 n. But in the present case there was no such election under the will, for by that instrument the petitioners took nothing. That they are estopped, by their acceptance of the conveyance to them by their father of land that he received under the will, seems to be impossible in view of the fact that they now make no claim under that conveyance. Under the deed the doctrine of election is inapplicable, for that instrument presented no alternative rights, and so no opportunity for election. Fifield v. Van Wyck, 94 Va. 557.

The plaintiff's intes

EVIDENCE RES GESTE PROXIMITY OF TIME. tate, having been injured and rendered unconscious through the alleged negligence of the defendant, made certain statements as to how the accident happened immediately after regaining consciousness. Held, that such statements are admissible as part of the res gesta. Christopherson v. C., M. & St. P. Ry. Co., 109 N. W. Rep. 1077 (Ïa.).

The reason for the rule admitting the contemporaneous statements of the injured party or an eye-witness lies, it is believed, in the great probability of their being true. State v. Wagner, 61 Me. 178. This probability arises from the mental or bodily disturbance caused by the accident, which is supposed to deprive the person of his power of fabrication. See Mitchum v. State, 11 Ga. 615. The necessity of absolute contemporaneousness is in dispute. The line of authority demanding it proceeds on the reason that statements not absolutely contemporaneous are not part of the res gesta, but are purely narrative. Reg. v. Bedingfield, 14 Cox C. C. 341; Waldele v. N. Y., etc., Co., 95 N. Y. 274. Another line of authority admits statements made shortly after an accident, although clearly narrative, if the test of probability of truth is satisfied. Insurance Co. v. Mosley, 8 Wall. (U. S.) 397. The latter view, though less convenient to apply than the stricter doctrine, seems preferable. The statements may be equally true whether made at the time of the accident, or, as the present case well shows, made some time after but before the presumption of possible fabrication arises. Hill v. Commonwealth, 2 Grat. (Va.) 594; but see 14 HARV. L. REV. 230.

INSURANCE

MUTUAL BENEFIT INSURANCE DIVORCE OF BENEFICIARY. A statute governing fraternal beneficiary associations confined payments of death benefits to the family, heirs, etc., of the members. The constitution of one of these associations limited payments in the same way. A member named his wife as beneficiary, and if she should die his representatives were to take in trust for his heirs. The wife became divorced. Held,

that the representatives take in trust for the heirs. Brotherhood of Railroad Trainmen v. Taylor, 9 Oh. Circ. Ct. Rep. (N. S.) 17.

In ordinary life insurance the contract is embodied in the policy, and, the beneficiary's rights being vested, a divorce does not affect them. Óverhiser v. Overhiser, 63 Oh. St. 77. In mutual benefit society insurance the laws of the society are part of the contract, and, these laws being subject to change, the beneficiary's rights vest only on the death of the insured. See Holland v. Taylor, 111 Ind. 121. Till then they are a mere expectancy, divested at his will. Masonic, etc., Ass'n v. Bunch, 109 Mo. 560. So even where a member dies without having revoked a provision in favor of a wife since divorced, the latter should receive no benefit, for at the time the right would vest she is no longer within the favored class of relatives. Order of Railway Conductors v. Koster, 55 Mo. App. 186. Apparently conflicting decisions on this point are generally accounted for by variations in the constitutions and by-laws of the different societies. For example, some courts reach a result opposite to that of the principal case because of the absence of an express limitation on payment, the wife being a proper beneficiary when appointed. Courtois v. Grand Lodge, 135 Cal. 552. The case under discussion is clearly correct, even without the aid of the statute.

INTERSTATE COMMERCE - CONTROL BY CONGRESS FEDERAL EMPLOYERS' LIABILITY ACT. The Act of Congress of June 11, 1906, c. 3073, 34 Stat. at L. 232, 233, provided that "every common carrier engaged in trade or commerce between the several states . . . shall be liable to any of its employees or in case of his death to his personal representative . . . for all damages which may result from the negligence of any of its officers, agents, or employees. . ." Held, that the statute is unconstitutional. Brooks v. Southern Pac. Co., 148 Fed. Rep. 986 (Circ. Ct., W. D. Ky.); Howard v. Illinois Cent. R. R. Co., 148 Fed. Rep. 997 (Circ. Ct., W. D. Tenn., W. D.). See NOTES, p. 481.

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INTERSTATE COMMERCE CONTROL BY CONGRESS NATIONAL ARBITRATION ACT. - The Act of Congress of June 1, 1898, c. 370, 10, provided that any common carrier engaged in interstate commerce, or any agent thereof, who shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership" in a labor organization "is hereby declared to be guilty of a misdemeanor." Held, that the statute is unconstitutional. United States v. Scott, 148 Fed. Rep. 431 (Dist. Ct., W. D. Ky.).

The decision is expressly rested on two grounds: first, that the Act is not a regulation of "commerce among the several states" within the meaning of the Constitution; secondly, that at all events the Act by its terms also applies indiscriminately and inseparably to purely intrastate commerce. The very same considerations that determine the validity of the Federal Employers' Liability Act must furnish the criteria by which to judge the constitutionality of the act now in question. See NOTES, p. 481. These criteria seem to show the latter as well as the former act to be unsanctioned by the interstate commerce powers of Congress. While regulating the relations between employers and employees engaged in interstate commerce, § 10 of the National Arbitration Act seems to react in no appreciable manner as a regulation of interstate traffic or intercourse. The object of this section, as well as its result, appears to be the promotion of the welfare, not of interstate transportation or transit or traffic, but of union labor.

LEGACIES AND Devises — Void or Voidable Bequests and Devises — EFFECT OF LAPSE ON EXECUTORY GIFTS OTHERWISE ILLEGAL. A testator bequeathed $1500 on a dry trust for his brother, and directed that any of it remaining at his brother's death be divided between two nieces. There was a residuary clause, immediately followed by another which directed that, if any one entitled to a share in the estate should die before being paid, his share should go into the residue. The brother predeceased the testator. Held, that