between states, there was a violation of the Anti-Trust Act of 1890, as judicially interpreted. United States v. Northern Securities Co. et al. (C. C., D. Minn. 1903) 120 Fed. 721. See NOTES, p. 404.

CRIMINAL LAW-BRIBERY OF OFFICER-ILLEGAL ARREST. Petitioner was illegally arrested and offered the officer money to release him. A statute made it a misdemeanor to bribe an officer to permit any person in his custody to escape. Held, the arrest being illegal, the statute did not apply. Ex parte Richards, (Tex. 1903) 72 S. W. 838.

The case was decided on the authority of Moore v. State (Tex. 1902) 69 S. W. 521. The latter case seems to be the result of a wrong interpretation of an earlier Texas case, Moseley v. State (1888) 25 Tex. App. 515, where an officer was held guilty for accepting a similar bribe although the arrest was illegal. The court in that case put its decision on the ground, not that the defendant was estopped to set up the illegality because it was his act, as intimated in Moore v. State, supra, but that the illegality of the arrest was irrelevant and immaterial. The court said: The law abhors even a tendency to official corruption and it is official corruption that this statute is intended to punish." At common law the crime of bribery was the presenting "to the official mind the idea of money not merited, but as a return for a wrong act or for fresh haste in doing a right one.' 2 Bishop's Criminal Law, 8th ed. 85 n, The question of the jurisdiction of the officer bribed to do the act is immaterial as the thing sought to be prevented is official corruption. State v. Ellis (1868) 33 N. J. L. 102.

I, 2.

CRIMINAL LAW-REASONABLE DOUBT-INSTRUCTIONS. The court in instructing the jury told them that a reasonable doubt was such a doubt as the jury were able to give a reason for" and not a possible or imaginary doubt. Held, the instructions were not erroneous. State v. Patton (Kan, 1903.) 71 Pac. 840.

Something more than the mere weight of evidence of the civil trial is required to convict of crime. This requisite is usually defined as belief beyond a reasonable doubt. It would seem that the analysis of reasonable doubt given by the court, though supported by considerable authority [accord: The People v. Guidici (1885) 100 N. Y. 503; Hodge v. The State (1892) 97 Ala. 37; Emery v. The State (1899) 101 Wis. 627; contra: Klyce v. State (1900) 78 Miss. 450; Morgan v. The State (1891) 48 Ohio St. 371], was the result of attempting a judicial definition where it is peculiarly the province of the juror to define for himself. The fundamental requirement is not so much the power to give specific reasons as that there be a moral certainty. Miles v. U. S. (1880) 103 U. S. 304; Commonwealth v. Webster (Mass. 1850) 5 Cush. 295. ALDERSON B., seems to best convey the true idea when he says the jury must be satisfied " that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person." Hodge's Case (1838) 2 Lewin C. C. 227.

DOMESTIC RELATIONS-DOWER-FRAUDULENT SALE. The plaintiff sought to enforce her inchoate right of dower against her husband, one of the defendants, who by collusion with the other defendant, a corporation, of which he owned nearly all the stock, sold to it by a foreclosure sale the mortgaged property in which the plaintiff claimed dower. Held, equity would not permit dower to be destroyed by such a conspiracy. Poillon v. Poillon et al. (1903) N. Y. Supr. Ct., Apl. Term (unreported).

In reaching this equitable result it was not necessary for the court to disregard the sound and well established principle that a corporation is an entity, separate and distinct from its shareholders. The Queen v. Arnaud (1846) L. J. 16 Q. B. (n. s.) 50, and that the corporation and not the stockholders own the corporate property. Gallagher v. Germania Brewing Co., (1893) 53 Minn. 214. As equity in its desire to protect dower will set aside a sale made by a husband immediately before death with intent to deprive the wife of dower, if the grantee was cognizant of this intent, Brewer v. Connell, (Tenn. 1851) 11 Hump. 500, or a

fraudulent conveyance immediately before marriage, if the conveyance was voluntary, Swaine v. Perine (1821) 5 Johns. Ch. 482, so a fortiori equity should set aside a sale made after marriage by the husband to a purchaser who knows the sale is to deprive the wife of dower, Buzick v. Buzick (1876) 44 Iowa 259, and this would be true whether the grantee was a natural or an artificial person.

EQUITY INJUNCTION-PUBLIC CONVENIENCE. In constructing the subway in Park Avenue, an unauthorized deviation from the specifications brought the work nearer to plaintiff's house than before. The Acts authorizing the work, however, permitted amendment of the specifications. Plaintiff sought to enjoin the construction, alleging that a nuisance was being maintained and that from the operation of the subway material injury from vibration would result. Held, an injunction must be refused. Barney v. City of New York, (1903) 39 Misc. 714. See NOTES, p. 413.

EVIDENCE-IMPEACHMENT-REFRESHING MEMORY OF WITNESS. Plaintiff's witness unexpectedly gave adverse testimony, in conflict with prior statements in an affidavit, and counsel was allowed to cross-examine from the affidavit, having proved that it was verified by the witness. Held, not an abuse of discretion; the rule that a party cannot impeach his own witness does not preclude inquiry as to such statements, directed to refreshing his memory. Maloney v. Martin (1903) 80 N. Y. Supp. 763.

The principal case follows Bullard v. Pearsall (1873) 53 N. Y. 230. A party, surprised by hostile testimony from his own witness, contradictory to former statements or testimony, is permitted, by the weight of authority, to cross-examine him. Greenleaf, Evidence, 15th ed. § 444 (a), McNerney v. Reading City (1892) 150 Pa. 611; but is not permitted to assume an attitude repugnant to his general representation of the credibility of the witness. White v. State (1888) 87 Ala. 24. Such proof should not be admitted without accurate definition of the time, place aud occasion of making the previous statements. St. Clair v. U. S. (1894) 154 U. S. 134 at 150; 17 & 18 Vict. c. 125, Sec. 22. The trial court is given a large discretion. Fisher v. Hart (1892) 149 Pa. 232. In Putnam v. United States (1896) 162 U. S. 687, the surprise doctrine is rejected. The court holds also that the right to refresh the memory of the witness is confined to the introduction of matter contemporaneous with the occurrences as to which the witness is called upon to testify. The tendency is to restrict the exception to the impeachment rule.

EVIDENCE-PRIVILEGE OF COUNSEL. In summary proceedings to dispossess a tenant where the question was whether an ancestor of tenants was in possession under a lease from plaintiff's ancestor, held, it was not an invasion of the privilege of counsel to require counsel for tenants, by subpoena duces tecum, to produce the lease which it was claimed had been signed by tenant's ancestor. Jones v. Reilly (1903) 174 N. Y. 97.

Before the enactment of the provision requiring parties to an action to be examined at the instance of the adverse party, a party could not be compelled to produce papers to be used against him as evidence. This privilege extended to the attorney for the possession of the attorney was considered the possession of the party. Bank of Utica v. Hillard (N. Y. 1826) 5 Cowen 419. But it was the province of the court to determine whether the documents were privileged. Copeland v. Watts (1815) 1 Starkie 95. Inasmuch as by a change in the law a defendant can now be compelled to produce documents in his possession, the decision in the principal case that an attorney may be required to produce any paper which his client could have been compelled to produce is correct, for the privilege of the attorney was the privilege of the client. Mitchell's Case (1861) 12 Abb. Prac. 249.

EVIDENCE-PRIVILEGE OF WITNESS-INCRIMINATING ANSWER. In proceedings against the keeper of a gambling house, the relator was summoned as a witness. He refused to answer certain questions on the ground that the answers would tend to incriminate him. N. Y. Penal Code § 342, in

the chapter relating to Gaming," provides: No person shall be excused from giving testimony upon any investigation or proceeding for a violation of this chapter, upon the ground that such testimony would tend to convict him of a crime; but such testimony cannot be received against him upon any criminal investigation or proceeding." Held, 342 falls short of granting complete immunity to the witness, and therefore, contravenes N. Y. Const. Art. I, § 6, which provides that no person can be compelled in any criminal case to be a witness against himself, and hence the defendant was not in contempt in refusing to testify. People ex. rel. Lewissohn v. O'Brien (1903) 80 N. Y. Sup. 816.

This decision is directly opposed to People v. Kelley (1861) 24 N. Y. 74, where it was held that the constitution did not protect a witness from a question which might be the means of furnishing other evidence against him in some future proceeding. Higdon v. Heard (1853) 14 Ga. 255; Bidgood v. State (1888) 115 Ind. 275; La Fontaine v. Southern Underwriters (1880) 83 N. C. 132 accord. Emery's Case (1871) 107 Mass. 172 and Cullen v. Commonwealth (1873) 24 Grat. 624 are contra. The similar provision in the Federal Constitution was passed upon by the Supreme Court in Counselman v. Hitchcock (1891) 142 U. S. 547. People v. Kelley, supra, was disapproved and it was held that a witness should be protected in every case in which complete immunity against future prosecution for the offense to which the question relates, was not given. in People v. Forbes (1894) 143 N. Y. 219 the precise question in People v. Kelley was not before the court, but they fully approved of the doctrine of Counselman v. Hitchcock, supra.

INSURANCE-ACCIDENT POLICY-SUBROGATION. The holder of an accident policy was injured through the negligence of a railway company with which he settled and then sued the insurer for the stipulated indemnity of $10 a week. The action was resisted on the ground that the settlement had deprived the insurer of his right of subrogation against the railway company. Held, the doctrine of subrogation is not applicable to accident insurance, and the insured might recover. Ætna Life Ins. Co. v. Parker & Co. (Texas 1903) 72 S. W. 168.

The case is sound. In fire and marine insurance the contract is strictly one of indemnity, and the insurer is therefore entitled to set-off in an action on the policy, any sum the insured has recovered from the party who caused the loss, or to the insured's right of action against such party. Ins. Co. v. R. R. Co. (1878) 73 N. Y. 399; Liverpool Steam Co. v. Phenix Ins. Co. (1889) 129 U. S. 397 at 462. Life insurance is not a contract of indemnity, Dalby v. Assurance Co. (1854) 15 C. B. 365 and subrogation is not allowed. Conn. Mutual v. N. Y. & N. H. R. R. (1856) 25 Conn. 265; Ins. Co. v. Brame (1877) 95 U. S. 754. The principal case is based on the analogy between life and accident insurance. The contract in each is not to indemnify, but to pay a certain stipulated sum on the happening of a certain event.

INSURANCE AGENCY-ESTOPPEL. Plaintiff took out insurance with defendant and after loss sued, the insurance company defending on the ground that representations in the application were untrue. Plaintiff's statements to defendant's agent were true but the agent inserted false statements in the application. The plaintiff then signed the application which contained an express limitation on the agent's authority. Held, the defendant was estopped to deny the truth of the representations. Fidelity Mut. Fire Ins. Co. v. Lowe (Neb. 1903) 93 N. W. 749.

The decision is in accord with the weight of authority. Hartford Life & Annuity Ins. Co. v. Gray (1875) 80 Ill. 28; Rogers v. Phonix Ins. Co. (1889) 121 Ind. 570; Kister v. Lebanon Mut. Ins. Co. (1889) 128 Pa. St. 553; Stone v. Hawkeye Ins. Co. (1886) 68 Iowa 737; Hanson v. The Milwaukee Mechanics' Mutual Ins. Co. (1878) 45 Wis. 321 ; Bennett v. Agrl Ins. Co. of Watertown (1887) 106 N. Y. 243. To reach this result the courts have broken the parol evidence rule, and have ignored the negligence of the insured in signing the application without knowing its contents, and the limitation to the agent's authority brought to the

notice of the insured through the application. On strict legal principle the opposite conclusion should have been reached. N. Y. Life Ins. Co. v. Fletcher (1886) 117 U. S. 519; Ryan v. World Life Ins. Co. (1874) 41 Conn. 168; Wilson v. Conway Fire Ins. Co. (1856) 4 R. I. 141.

INSURANCE REDUCTION OF POLICY BY INSurer-RemedY OF INSURED. Defendant association issued certificates promising to pay $5,000 on the death of the member holding same. A subsequent by-law reduced the amount payable on certificates previously issued to $2,000. One holder treated the contract as broken and sued for the premiums paid. Held, he could recover. Black v. A. L. of H. (C. C. E. D. Pa. 1903) 120 Fed. 580. A second holder, after notice of the by-law, tendered dues on the $5,000 policy, which defendant declined. The holder then sued for damages for breach of contract. Held, (PARKER, C. J., BARTLETT and MARTIN JJ., dissenting), there had been no breach, as the by-law was void and the original contract unimpaired, plaintiff's remedy being to keep the contract alive by a regular tender of premiums or to apply to a court of equity to restrain the defendant from proceeding under its void by-law. Langan v. A. L. of H. (1903) 174 N. Y. 266.

It seems impossible to support the New York case. The insured, on a breach by the insurer, may rescind the contract and recover the premiums paid, Meade v. Ins. Co. (N. Y. 1875) 51 How. Prac. Rep. 1, or he may sue for the breach and recover damages. Id., note; Keener on Quasi-Contracts 298. See also McKee v. Ins. Co. (1859) 28 Mo. 383. The case, therefore, must rest entirely on the proposition that there was no breach by the defendant. But the doctrine of anticipatory breach is certainly recognized in New York, Burtis v. Thompson (1870) 42 N. Y, 246, and it would seem that, aside from the by-law cutting down the policies, the defendant broke the contract when it declined the premiums and refused to recognize the original policy as still in force. The Federal case is well supported by authority. McKee v. Ins. Co., supra; Ins. Co. v. McAden (Pa. 1885) 1 Atl. 256; Van Warden v. Assurance Society (1896) 99 Ia. 621.

LIBEL-PRIVILeged CommunicATION—JUDICIAL PROCEEDINGS. In an action for libel the plaintiff claimed that the defendant, in a bill filed to enjoin the issuance of certain bonds authorized at a city election, had falsely accused the plaintiff of voting illegally at said election. Held, the publication being in a pleading and being pertinent to the issue was absolutely privileged. Crockett v. McLanahan (Tenn. 1903) 72 S. W. 950.

It has always been the policy of the law to protect absolutely those who make statements in the course of judicial proceedings-provided such statements are, on their face, pertinent to the issue. Henderson v. Broomhead (1859) 4 H. & N. 569; Link v. Moore (1895) 84 Hun 118; Jones v. Brownlee (1901) 161 Mo. 258. Only one case is contra,-Ruohs v. Baeker (1871) 6 Heisk. 395. It is there held that such statements, when they refer to a stranger to the record, as in the principal case, are only conditionally privileged.

MORTGAGES-PARTIAL ASSIGNMENT OF DEBT-PRIORITIES. A mortgagee, after recovering judgment on the debt and securing a decree of foreclosure, assigned at the same time twelve-fifteenths of the judgment in twelve equal parts. Of these eight were thereafter transferred to W. and the other four reassigned to the mortgagee. In an action to revive the judgment and decree, held, the twelve-fifteenths assigned were entitled to be satisfied prior to the three-fifteenths never assigned by the mortgagee. Alden v. White (Ind. 1903) 66 N. E. 509. See NOTES, p. 411. NEGOTIABLE PAPER-COLLATERAL SECURITY FOR ANTECEDENT DEBT. The plaintiff received a note as collateral security for an antecedent debt. The defendants alleged that they were accommodation indorsers and the note was fraudulently diverted. Held, 51 N. I. L. does not change the New York rule that one who acquires commercial paper as collateral security for a preexisting debt is not a holder for value. Sutherland v. Mead et al. (N. Y. 1903) 80 App. Div. 103.

Prior to the statute the authorities were in an irreconcilable conflict. arising under the decision of KENT, C. in Bay v. Coddington, affirmed (1822) 20 Johns 637. This holding was contrary to English authority, Bosanquet v. Dudeman (1814) I Stark 1, and was subsequently dissented from by STORY J. in Swift v. Tyson (1842) 16 Peters 1, holding that an instrument taken in payment of or as security for a pre-existing debt constituted the transferee a holder in due course. This rule has since represented the weight of authority in England and the United States. In New York, however, the doctrine of Bay v. Coddington was reaffirmed in Stalker v. McDonald (1843) 6 Hill 93. Chancellor KENT in commenting upon the last case admitted that he had changed his opinion and agreed with the doctrine of Swift v. Tyson, supra, as the "plainer and better view." Commentaries Vol III § 81, note b. Under the statute, 51, both by its language and clear intendment, one taking a bill or note in payment of or as security for a pre-existing debt is deemed a holder for value. To further substantiate this view we have the statement of its draftsman that this section makes an important changes in the law of New York. It abolishes the rule in the leading case of Coddington v. Bay." Crawford's Neg. Inst. Law of N. Y., 2nd ed., § 51, n. (b). Only one case has arisen under the statute prior to the principal case and that clearly recognizes the change in the rule. Brewster v. Shrader (1899) 26 Misc. 480. The importance of uniformity upon this rule of commercial law is great and after, as was supposed, the statute had effected a concord the decision in the principal case is a surprise.

NEGOTIABLE PAPER-PAYEE AS HOLDER IN DUE COURSE. The defendant drew a check payable to the plaintiff, giving it to her husband to deliver to the plaintiff in satisfaction of defendant's indebtedness. The husband fraudulently delivered the check in liquidation of his personal debt to the plaintiff. Held, the payee, accepting in good faith and for value is a holder in due course and not subject to the defense of fraud. Boston Steel and Iron Co. v. Steuer (Mass. 1903) 66 N. E. 646.

The status of a payee taking a bill or check from a third party has not been clearly defined either under the English Bills of Exchange Act or under the Negotiable Instruments Law. Prior to the Bills of Exchange Act the prevalent practice of merchants to buy bills or checks payable to their creditors was well recognized, and the payee was deemed a holder in due course, not subject to personal defenses either between the "remitter" and the drawer, or between himself and drawer. Porier v. Morris (1853) 2 E. & B. 89; Watson v. Russel (1862) 3 B. & S. 34. Whether the Bills of Exchange Act (1882) § 29, embodied in the N. Y. Negotiable Instruments Law § 91 changes this rule of the law merchant is the question in the principal case. According to the definition in § 91 sub. sec. 4, a holder in due course takes by negotiation. The form of transfer in the principal case is not provided for in § 60 dealing with negotiation. The decision if it is to be supported must rest on the ground that the statute was not intended to change the rule of the law merchant. This custom has no application to the case of a note. Herdman v. Wheeler (1902) 1 K. B. 361.

PLEADING AND PRACTICE-ATTORNEY'S LIEN-ENFORCEMENT BY EQUITABLE ACTION. The plaintiff, who had a written agreement with his attorney for a portion of the prospective recovery, settled with the defendant be fore judgment, gave a release, received payment and went to Norway. Held, the lien, given by § 66 N. Y. Code Civ. Proc., attaches to the fund created by the settlement, and the attorney can enforce it by an equitable action against the adverse party. Fischer-Hansen v. Brooklyn Heights R. Co. (N. Y. 1903) 66 N. E. 395.

Under the old Code, the attorney was given no protection before judgment, except in case of a collusive or fraudulent settlement, and then for his costs only. Coughlin v. N. Y. C. & H. R. R. Co. (1877)71 N. Y. 443. In the case of Periv. N. Y. C. & H. R. R. Co. (1897) 152 N. Y. 521, under 66, as amended in 1879, the attorney was held to be an equitable assignee of the cause of action to the extent of his lien. The procedure