CORPORATIONS-MERGER. The Northern Securities Company, an independent corporation, acquired the majority of the stock of the Northern Pacific and Great Northern Railways, in pursuance of an agreement between the stockholders of these railways. Held, the agreement was not in restraint of trade or commerce within the Minnesota anti-trust law, or the Minnesota statute against consolidation. State of Minnesota v. Northern Securities Co. (C. C., D. Minn. 1903) 123 Fed. 692.

As LOCHREN, J. admits in his opinion, this decision is directly contra to that in United States v. Northern Securities Co. (C. C., D. Minn. Feb. 1903) 120 Fed. 721, inasmuch as the Minnesota anti-trust law is substantially the same as the Sherman Act of 1890. After a discussion of the cases interpreting the Sherman Act in the Supreme Court of the United States, he draws the conclusion "that contracts which do not directly and necessarily affect transportation, or rates therefore, are not in restraint of trade, or within the statute, even though they may remotely and indirectly appear to have some probable effect in that direction." Applying this rule, he points out that neither the Northern Pacific Co., nor the Great Northern Co., in their corporate capacities had anything to do with forming the Northern Securities Co.; that the Northern Securities Co. is merely the owner of a majority of the stock of these two roads, having no power to manage them, nor is there evidence that it has tried to do so; and that he is "compelled to reject the doctrine," as advanced in the United States case, "that any person can be held to have committed or to be purposing and about to commit, a highly penal offense, merely because it can be shown that his pecuniary interests will be thereby advanced, and that he has the power, either directly by himself, or indirectly through persuasion or coercion of his agents, to compass the commission of the offense." For a discussion of this question see 3 COLUMBIA LAW REVIEW 168, 221; 305, 404.

CORPORATIONS-RELATION of Stockholders and CredITORS TO DIRECTORS —Statute of LIMITATIONS. Bill in equity by the creditors of the defendant corporation to obtain, with other relief, damages for malfeasance in office of the defendant directors. The defendants pleaded the Statute of Limitations. Held, the defendants were not trustees of a technical trust and could therefore plead the statute. Boyd v. Mutual Fire Ass'n et al. (Wis. 1903) 94 N. W. 171. See NOTES, p. 487.

The reor

CORPORATIONS-VOTING TRUSTS-RIGHTS OF STOCKHOLDERS. ganization committee of an insolvent corporation, appointed by a majority of the stockholders, who were citizens of Great Britain, issued a circular to such stockholders suggesting a voting trust and asking that the consents enclosed be signed and returned. In case of the refusal of any stockholder, the committee reserved the right to reject his subscription to shares. Subsequently the committee transferred the stock, the title to which they still held, to a holding corporation as trustee; the conveyance provided that the trust should endure fifty years, and gave the trustee absolute power to vote the stock as it should see fit, revocable only by three-fourths of the pooling stockholders. The trust agreement was without consideration. Held (1) Any stockholder who had been a party to the agreement, or a purchaser from him, could revoke the trust at any time. (2) The American stockholders could enjoin the carrying out of the trust. Warren v. Pim (N. J. 1903) 55 Atl. 66. See NOTES, p. 482.

CRIMINAL LAW-ACCUSED AS WITNESS-WAIVER OF PRIVILEGE. The defendant, in a criminal case, after taking the stand in his own behalf, refused to answer a question which, though relevant, tended to convict him of another crime. Held, the trial court committed no error in compelling him to answer. People v. Dupounce (Mich. 1903) 94 N. W. 388. The decision is correct. A prisoner cannot be compelled, against his will, to testify, but when he voluntarily goes on the stand he waives this constitutional privilege. Once on the stand he must answer every question relevant to the issue, whether or not it tends to convict him of the

crime in question or of any other crime. Commonwealth v. Nichols (1873) 114 Mass. 285; State v. Pancoast 35 L. R. A. 518 at 527. Contra, Cooley on Const. Lim. p. 384. The preponderance of authority is in favor of the view in the principal case. The court concedes that State v. Wintham (1881) 72 Me. 531 is opposed to its view, but a close examination shows it to be entirely in accord.

EQUITY INJUNCTION TO RESTRAIN UNFAIR COMPETITION. Complainant was the manufacturer of "Remington" typewriters. Defendant corporation, composed of Franklin and Carter Remington, Sholes and others, manufactured typewriters and marked them "Remington-Sholes" and "Rem-Sho." Complainant applied for an injunction to restrain defendant from using the name "Remington" and its abbreviation "Rem." The injunction was granted as to the word "Remington," but refused as to the abbreviation. Wyckoff, Seamans & Benedict v. Howe Scale Co. (C. C. A. Second Circuit, 1903) 122 Fed. 348.

An individual may use his own name honestly in his business, even though he may incidentally interfere with and injure the business of another having the same name. Singer Mfg. Co. v. June Mfg. Co. (1896) 163 U. S. 169; 2 COLUMBIA LAW REVIEW 245. As to a corporation, a different rule of law exists. It may choose from the entire vocabulary of names." If the name chosen will mislead the public its use will be restrained, although it is the name of a member of the corporation. It is unfair competition for the corporation to adopt a name so like the complainant's that the corporation will derive benefit from the reputation already possessed by complainant's goods or business. R. W. Rogers Co. v. Wm. Rogers Mfg. Co. (1895), 70 Fed. 1017; Massam v. Thorley's Cattle Food Co. (1880) L. R. 14 C. D. 748. The injunction was refused as to the word "Rem" on the ground that it was not sufficiently like Remington" to be a reasonable cause of confusion.

EVIDENCE-ADMISSIONS OF AN Agent-Res GESTA, Where the question was as to the quality of certain printing plates, held, statements by an employee of defendants who had full charge of the machines, made in the presence of officers of the plaintiff company, that the plates worked nicely and were satisfactory, were admissible as res gestæ and as made by an agent while acting within the scope of his authority. Stecher Lithographic Co. v. Inman et al. (N. Y. 1903) 67 N. E. 212.

The New York court admits the evidence as a part of the res gestæ though in discussing its admissibility the court treats the question as one of authority on the part of the agent to bind his principal. In these agency cases there is generally no question of res gestæ. The question is one of admissions. If the agent makes the statement while acting within his authority his statement binds the principal because it becomes the statement and act of the principal. But if uttered outside the scope of his agency, the principal is not bound by it, and the evidence should not be admitted. For an exposition of the correct principle see Thayer, Cas. Ev. pp. 629–636. See also White v. Miller (1877) 71 N. Y. 118 at P. 135.

EVIDENCE-PRIVILEGED COMMUNICATION. The defendant was charged with bribery and summoned before the grand jury. He consulted the presiding judge privately as to what course he should pursue. The judge refused to give advice, telling him he should see an attorney but stated that if he testified it would be best to tell the truth. The defendant then confessed to the judge. Held, the confession was privileged and inadmissible. People v. Pratt (Mich. 1903) 94 N. W. 752.

The confession was purely voluntary and unless shielded by the rule protecting confidential communications between attorney and client, should have been admitted. By the great weight of authority this rule applies only when the relationship of attorney and client actually exists. Montgomery v. Perkins (1899) 94 Fed. Rep. 23; Rosseau v. Bleau (1892) 131 N. Y. 177. In a few states the rule is extended to cover cases where

the person making the communication reasonably supposed that it existed. Alderman v. People (1857) 4 Mich. 414. The statements must be made to the attorney in the course of professional employment and induced by the relation. Williams v. Fitch (1859) 18 N. Y. 546 at p. 551; Hatton v. Robinson (1833) 14 Pick. 416. The decision in the principal case seems to rest on the "attorney and client "rule and on broad grounds of policy. It clearly does not come within the rule nor does the policy on which it rests justify the decision. A contrary result was reached in State v. Chambers (1893) 45 La. Ann. 36.

INSURANCE-PRORATING LOSS BETWEEN SPECIFIC AND BLANKET POLICIES. The plaintiff insured a building, the policy to cover any addition he might build. He later built an addition and took out insurance upon it alone with the defendant company, the policy having the usual pro rata clause. In a suit upon this policy after the burning of the addition held, specific policies do not prorate with blanket policies and that therefore the defendant was liable for the full amount of the loss. Meigs v. Ins. Co. (Pa. 1903) 54 Atl. 1053.

In holding as it did in the principal case the court followed the wellestablished rule in Pennsylvania; Clarke v. Assurance Co. (1892) 146 Pa. 561, but it is hard to justify the decision on principle for a blanket policy in its very nature covers each and every part of the subject of insurance and it does not any the less cover them because there happens to be a specific policy on some particular item. Thus the destroyed property was covered by both policies and it would seem proper to prorate the loss between them. And this, by the great weight of authority, should be the rule. Page v. Sun Ins. Office (1896) 74 Fed. 203; Blake v. Ins. Co. (Mass. 1858) 12 Gray 265; Ogden v. Ins. Co. (1872) 50 N. Y. 388. For the method of prorating the loss under this rule see 3 COLUMBIA LAW Review 283.

INSURANCE REDUCTION OF POLICY BY INSURER-RemedY OF INSURED. Defendant insurance association issued policies promising to pay $5,000 on the death of the member holding same. A subsequent by-law reduced the amount payable on any policy to $2,000. Held, plaintiff, a policyholder, was entitled to treat the contract of insurance as broken and recover the premiums paid, with interest. Black v. A. L. of H. (C. C., E. D. Pa. 1903) 120 Fed. 580.

This case, which was noticed in 3 COLUMBIA Law Review 423, has recently been affirmed by the Circuit Court of Appeals, Third Circuit, reported in 123 Fed. 650. It represents the great weight of authority as to the remedy of the insured when the insurer wrongfully renounces the contract. In New York it is held that the only remedy of the insured is to keep the original contract alive by a regular tender of premiums or to apply to a court of equity to restrain the insurer from acting_under its void by-law. Langan v. A. L. of H. (1903) 174 N. Y. 266. For a criticism of the New York view see COLUMBIA LAW REVIEW, supra.

INTOXICATING LIQUORS-WHAT CONSTITUTES SALE-SOCIAL CLUB. Members of a social club were sold checks which upon presentation entitled them to liquor furnished by the club. Held, this was a "sale" of liquor and a violation of the Dramshop Act (Hurd's Rev. St. Ill., 1901, p. 750) which prohibits the sale of spirituous liquors without a license. People v. Law & Order Club (Ill. 1903) 67 N. E. Rep. 855.

Whether or not such a state of facts constitutes a sale has been decided differently in different States and the decisions seem to be irreconciliable. The leading case holding that such an act is not a sale is Graff v. Evans (1882) L. R. 8 Q. B. Div. 373 where it was held that there was merely a transfer to the member of a special property since he, as a member, already had an interest in the goods. Opposed to the decisions following Graff v. Evans are those cases which hold that for any and all purposes a sale has taken place. Newark v. Essex Club (1890) 53 N. J. L. 99. There is however a rule between these extremes which has been adopted in some States and under which many if not most of the

decisions may be reconciled, i. e. such a transaction, although technically a sale, is not a violation of the statute if the Club is such bona fide and the sale of liquor is merely incidental to the other purposes for which the Club was formed. State v. St. Louis Club (1894) 125 Mo. 308; Black on Intox. Liq. $142.

MASTER AND SERVANT-SERVANT UNDER CONTROL OF THIRD PERson. Plaintiff was servant of a firm of stevedores who were unloading defendant ship. The ship furnished the winchman who was, as to the operation of the winch, under the control of the stevedores. Plaintiff was injured through the negligence of the winchman. Held, the winchman was the servant of the ship, not of the stevedores, and the plaintiff could recover. The Slingsby (C. ̊C. A., 2nd Circ., 1903) 120 Fed. 748.

The decision lays down the rule that when the master determines the line of work and retains the right to recall or discharge the servant, the relation of master and servant continues between them. This is supported by the weight of authority. The Lisnacrieve (1898) 87 Fed. 570; Murray v. Dwight (1900) 161 N. Y. 301; Coggin v. Central R. Co. (1879) 62 Ga. 685. Several jurisdictions, however, reach precisely the opposite result, holding that a change of control, even temporary, involves pro tanto a change of masters. Hasty v. Sears (1902) 157 Mass. 123; Roe v. Winston (1902) 86 Minn. 77; Delaware, etc., R. Co. v. Hardy (1896) 59 N. J. L. 35. The support of the principal case involves the doubtful holding that the acts of the servant were the acts of one who exercised no immediate control over him and who had transferred the right of such control to another.

MUNICIPAL CORPORATIONS-IMPLIED CONTRACTS. Where a statute provided that contracts made by a township trustee must be in writing and a bond given and that contracts made in violation of the act shall be void, held, no recovery can be had on notes given by a township trustee, in payment for goods, where the statutory steps have not been complied with; nor can the plaintiff recover on a quantum meruit. Peck Williamson Heating & Ventilating Co. v. Steen School Tp. of Knox County (Ind. 1903) 66 N. E. 909.

There is a conflict of authority as to whether a municipal corporation can become liable on an implied contract. It is well settled however that where the charter of a city or a statute has prescribed certain formalities which shall enter into the making of all municipal contracts, the city cannot be held liable on an implied contract to pay for benefits received, in the absence of a contract made in the manner prescribed. McDonald v. Mayor (1876) 68 N. Y. 23; Zottman v. San Francisco (1862) 20 Cal. 96. The object of such a statute is to protect the municipality from the making of contracts by unauthorized public agents and therefore it is strictly enforced.

PARTNERSHIP GOOD WILL-SALE OF FIRM NAME TO STRANGER. In an action for an accounting between the executrix of the estate of a deceased partner and the surviving partner, held, the firm name is part of the good-will and can be sold under a court order like any other asset. Slater v. Slater (Ct. of App. 1903) 29 N. Y. L. J. 675.

The firm name was common property at common law. Caswell v. Hazard (1890) 121 N. Y. 484 That the good-will is part of the firm assets in which the estate of the deceased partner can now participate is well settled. 2 Bates on Partnership $ 658 and cases cited. The firm name is certainly of great value and is the principal, perhaps the only means of obtaining all of the good-will of the firm, and would pass with it by necessary implication. Collyer on Partnership, 6 Ed. 572. Levy v. Walker (1879) L. R. 10 Ch. Div. 436 at p. 448; Snyder Mfg. Co. v. Snyder (1896) 54 Ohio St. 86 at p. 96. Contra, overruled by principal case, Reeves v. Denicke (1871) 12 Abb. Pr. N. S. 92. The ground for enjoining a partner, who has sold the good-will, from using the firm

name is slightly different namely, that by so using it he holds himself out as continuing the business which would be a fraud on the parties to whom he has sold the good-will. Myers v. Kalamazoo Buggy Co. (1884) 54 Mich. 215.

PATENT-INFRingement of COPYRIGHT-Use of Prior WORKS. Publishers of the Encyclopedias of American and English Law and of Pleading and Practice sought to enjoin the publication of the Cyclopedia of Law and Procedure on the ground of infringement of copyright, alleging that defendant's editors used original lists of authorities appended to articles in complainant's works in the preparation of new articles, and after examining the sources referred to, cited in support of their conclusions such as seemed apt. Held, these acts did not amount to an infringement and the temporary injunction should be dissolved. Edward Thompson Co. v. American Law Book Co. (C. C. A. 2nd Cir. 1903) 122 Federal Rep. 922.

In cases where the rival works are not strictly original but based on common sources, the distinction recognized as governing the case in question. between incorporating the results of another's research in the volume complained of without independent examination, and using the authorities cited by a predecessor as an aid in a new survey of the same field, or as a basis for cognate literary production, is sound and has commended itself to the judicial mind. Morris v. Wright (1870) L. R. 5 Ch. Ap. 279; Banks v. McDavitt (1875) 13 Blatchf. 163. The evil consequence of an opposite holding is thus described by the court: "It would be a serious blow to Jurisprudence were the rule enunciated that the author of a law book is precluded from taking a list of authorities cited by a previous writer and making an independent examination of them."

REAL PROPERty-CondemnATION-DEED. Where a land owner contracted with a railroad to convey real estate which the latter was authorized by statute to acquire, and subsequently deeded the property to plaintiff, held, plaintiff could maintain ejectment against the railroad. Wilson v. Muskegon Co. (Mich. 1903) 93 N. W. 1059.

The view in the dissenting opinion that title vests when the railroad takes possession with the consent of the owner and satisfies the stipulated terms as to compensation, was properly rejected by the majority. The State may by legislative act effect a change of title immediately, reserving to the former owners only a right to compensation. Purifoy v. Railroad (1891) 108 N. C. 100. But where the statute simply gives the right to acquire property, and resort to condemnation proceedings is not necessitated, private negotiations entered into by the company have no higher effect than is attributed to them by the ordinary rules of private law. Hence in such cases unless the property be condemned a deed is essential to a perfect legal title. Telford v. Railroad (1898) 172 Ill. 559; Lewis on Eminent Domain § 289.

Sec.

TORTS-ACTION FOR DEATH BY NONRESIDENT ALIEN AS NEXT OF KIN. 5913, Gen. St. Minn. 1894, gives a right of action for the benefit of the next of kin of the deceased when death has been caused by negligence. In an action to recover damages for the death of a laborer in a mine, caused by the negligence of the master in controlling its skip cars, held, nonresident aliens who are next of kin are entitled to the benefits conferred by the statute. Reulund v. Commodore Min. Co. (Minn. 1903) 93 N. W. 1057.

Statutes in this country following "Lord Campbell's Act" seem to present primarily two aspects: punishment for the negligent person, as in Massachusetts and Missouri, where the amount of recovery is either fixed or measured by the degree of culpability; or compensation for the persons dependent on the deceased, as in Pennsylvania, Georgia, Illinois, Minnesota, and most other states where such legislation exists. If primarily punitive the police power of the state is called on, and it is of less importance whether the action is by a citizen or nonresident alien. Ac