a civil action for false imprisonment. McCarg v. Burr, 106 N. Y. App. Div. 275.

The defendant committed two errors: first, in causing an arrest under a defective warrant, and secondly, in convicting without jurisdiction. The issuing of a warrant, void on its face, is a wrongful exercise of a ministerial, as distinguished from a judicial, function, for which a justice is civilly liable. Blythe v. Tompkins, 2 Abb. Pr. (N. Y.) 468. The sentence purported to be a judicial act, which is absolutely privileged. COOLEY, TORTS, 2d ed., 477. But the fact that a judge assumes jurisdiction does not of itself make his acts thereunder judicial. The Case of the Marshalsea, 10 Co. 369. The warrant being defective in substance, not merely in form, gave no jurisdiction in fact over the plaintiff. Wills v. Whittier, 45 Me. 544. The tendency, however, is to accord a presumption of jurisdiction, even to inferior courts. Thompson v. Jackson, 93 la. 376. In the principal case the assumption of jurisdiction did not arise from a mistaken fact, but from an error of law, on which two opinions could not honestly be entertained by reasonable men, and so the presumption of jurisdiction should not protect the defendant. Cf. Grove v. Van Duyn, 44 N. J. L. 654; see also 12 HARV. L. REV. 352; 13 ibid. 407. The criterion suggested for rebutting the presumption, analogous to that applied on motions to set aside verdicts, protects a judge from the consequences of every error of judgment, unless totally unreasonable, but leaves him answerable for the commission of a wrong that is practically wilful.

HUSBAND AND WIFE RIGHTS AND LIABILITIES OF HUSBAND AS TO THIRD PARTIES - LIABILITY OF HUSBAND FOR MAINTENANCE OF INSANE WIFE IN PUBLIC ASYLUM. · The trustees of a county insane asylum petitioned for an order to compel the defendant to pay a certain sum weekly for the support of his insane wife in the asylum, to which she had been committed by the proper public authorities. Held, that the defendant is not liable. Richardson v. Stuesser, 103 N. W. Rep. 261 (Wis.).

The common law liability of a husband for necessary expenses incurred by his wife after she has left his bed and board rests upon an implied contract, which is raised only where her departure is ascribable to his wrongful act or default. SCHOULER, HUSBAND AND WIFE, § 111. In the present case the husband is clearly guilty of no wrong, whether he sets in motion the machinery of the law, or merely yields, perhaps reluctantly, to the action of the public authorities in confining his wife. Thus there seems to be no ground for raising the implied contract, which alone, in the absence of a statute, should make the husband liable. Cf. County of Delaware v. McDonald, 46 Iowa, 170; contra, Goodale v. Lawrence, 88 N. Y. 513. There is a decided conflict of authority on the question involved; but the reasoning of the principal case seems sound, as public policy, which seeks at once the protection of the insane and of the community, demands that no selfish fear of liability on the husband's part shall block the effect of the wholesome legislation which requires the commitment of the insane to a public institution. See Baldwin v. Douglas County, 37 Neb. 283.

INSURANCE - COMMENCEMENT, DURATION, AND TERMINATION OF LIABILITY - INEVItable Loss WITHIN PERIOd of Risk. A warehouse and goods therein were insured until April 1, 1902, noon. Held, that even though the destruction of the warehouse by fire appeared inevitable during the time limit of the policy, the company is not liable for loss to the goods if fire did not actually start in the warehouse until after April 1, 1902, noon. Rochester German Ins. Co. v. Peaslee Gaulbert Co., 87 S. W. Rep. 1115 (Ky., Ct. App.).

A careful search of the authorities stamps this case as one of first impression. The court clearly points out that the liability of the insurer is for actual loss, and not for damage the imminence or certainty of which existed during the term fixed in the policy. The conclusion reached harmonizes with other branches of insurance law. See 17 GREEN BAG 674. So, where one insured against death in fact survives the term of the contract, no recovery can be had, even though he was attacked with a fatal disease before the expiration of the policy. See Howell v. Knickerbocker Life Ins. Co., 44 N. Y. 276; Lockyer v.

Offler, 1 T. R. 252, 260. Similarly, to allow any recovery in marine insurance the vessel must have suffered loss during the term of the policy, and the extent of such recovery is restricted to the magnitude of the loss incurred during this term, though there be a subsequent total destruction. Howell v. Protection Ins. Co., 7 Oh. (pt. 1) 284. Accordingly, if the "death wound" so received rendered subsequent total loss inevitable, indemnity for total loss should be allowed, for the property was thereupon rendered valueless. See Coit v. Smith, 3 Johns. Cas. (N. Y.) 16; Duncan v. Great Western Co., 5 Abb. Pr. (N. Y.) N. S. 173. The court remarks obiter that a similar rule of damages would have been applied if the fire making total destruction inevitable had, in fact, attacked the warehouse during the life of the policy. But if the goods were insured as a separate risk, they are as much a separate subject of insurance as two adjoining buildings under separate policies. And the very basis of this decision is that fire must have attacked the insured property itself, and that vast depreciation caused by imminent danger from fire, which has merely seized contiguous property, gave no right to damages.

JUDGMENTS RIGHT OF ASSIGNEE TO SUE FOR BREACH OF OFFICER'S DUTY. - Held, that the assignment of a judgment does not pass to the assignee the judgment creditor's right of action against an officer for misconduct which occurred prior to the assignment. Commonwealth ex rel. Vicars v. Wampler, 51 S. E. Rep. 737 (Va.).

On the question here involved, the authorities are squarely in conflict. Cf. Redmond v. Staton, 116 N. C. 140; Citizens', etc., Bank v. Loomis, 100 la. 266. It is generally admitted that the assignment of a judgment necessarily carries with it "all the beneficial interest of the assignor in the judgment, and all its incidents." See FREEMAN, JUDGMENTS, 4th ed., § 431. But "incidents," in its accepted meaning would not include a mere collateral right of action against a public officer, since such right of action is in no legal sense a security for the debt. See Commonwealth for Faris v. Fuqua, 3 Litt. (Ky.) 41. Obviously justice requires that if the assignee of the judgment has suffered by its depreciation caused by an officer's breach of duty, he should be allowed to recover damages from the offending officer. Yet the legal claim against the officer, undoubtedly resting in the assignor prior to the assignment, can hardly have been transferred. The logical solution of the difficulty would seem to be that the assignor becomes constructive trustee of the claim for the benefit of the assignee. This being the situation, the assignee or beneficiary would in many jurisdictions be allowed to sue directly at law under the common statute providing that actions "shall be prosecuted in the name of the real party in interest."

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LANDLORD AND TENANT RENT DISTRAINT OF CROWN PROPERTY. A government horse used in the South African War was lent to a yeoman, and later was seized and sold under distress for the yeoman's rent. The gov ernment appealed from an adverse decision in an action for illegal distress. Held, that the appeal should be granted, since crown property on a subject's land cannot be distrained for rent. Secretary of State for War v. Winne, 22 T. L. R. 8 (Eng., K. B., Oct. 26, 1905).

Although no modern decisions on this point have been found, the doctrine of the case is supported by the ancient writers, and seems sound on principle. Where the crown was a tenant, the landlord was unable to distrain for rent. 9 Vin. Abr., 2d ed., 125; Brook Abr., pl. 46. Crown cattle damage feasant could not be distrained. Rex v. Prior de Okeburne, P. 22 E. I. If courts would not allow distress in that case, where the crown was at fault, they surely would not have allowed it in the case under discussion, where the crown was blameless. Sound principles demand the same result. The government must be absolutely unhampered in the use of its own property. For that reason, a state is not allowed to tax property belonging to the federal government. Similarly, neither federal nor state nor county property, retaining its public nature, can be levied on or sold under an execution. Mayrhofer v. Board of Education, 89 Cal. 110. For the same reason distress should not be allowed.

LIBEL AND SLANDER - PRIVILEGED COMMUNICATIONS STATEMENTS OF INTENDED WITNESS TO ATTORNEY AND CLIENT. The defendant made defamatory statements to an attorney and his client in the course of their preliminary interview with him as a prospective witness. Held, that the defendant is protected by the same privilege which would shield him as a witness on the stand. Watson v. M'Ewan, [1905] A. C. 480.

It is now well settled that the defamatory words of a witness on the stand made with reference to the matter at issue are absolutely privileged. Dawkins v. Lord Rokeby, L. R. 7 H. L. 744. In the United States, however, the qualification is generally added that the statements must be pertinent to the enquiry. McDavitt v. Boyer, 169 Ill. 475. A few judicial expressions to the effect that this privilege is confined to the case of a witness while testifying on the stand were clearly made with no thought of the present situation. See Seaman v. Netherclift, 2 C. P. D. 53, 56. The answer to the question now raised, whether the absolute privilege of witnesses on the stand should be extended to preliminary examinations by attorneys, must depend on considerations of public policy. The judgment and reasoning of the court seem well grounded. Witnesses will not submit to a preliminary examination, through which the progress of trials is so much facilitated, if they are liable for statements then made. The public benefit obtained by the protection of the intended witness seems greatly to outweigh the little harm likely to result from a defamatory communication made only to an attorney and his client. For any republication, they may, of course, be liable. ODGERS ON LIBEL AND SLANDER, 4th ed., 165.

LIFE ESTATES

LIFE.

RESIDUARY BEQUEST OF CHATTELS PERSONAL FOR A testator bequeathed the residue of his chattels personal to his wife for life. Held, that the wife takes a life interest only. Walker v. Hill, 60 Atl. Rep. 1017 (N. H.).

The English and American authorities agree that a gift by will of personal chattels for life, with a limitation over, conveys to the first legatee an interest for his life only. Vachel v. Vachel, 1 Ch. Cas. 129; Smith v. Bell, 6 Pet. (U. S.) 68. The case in which a chattel personal is bequeathed for life, without a limitation over, has not arisen in England; but numerous American decisions hold that under this form of bequest also the interest continues during the legatee's life only. Black v. Ray, 1 Dev. & B. (N. C.) 334; Anonymous, 2 Hayw. (N. C.) 161. These principles apply equally where the bequest is of a residue as distinguished from a specific chattel. Smith v. Bell, supra. The technical nature of this life interest is a question on which the decisions are silent. The interest cannot be a legal estate, because the common law recognized no tenure and hence no estates in chattels personal. See 2 POLLOCK & MAITLAND, HIST. OF ENG. LAW, 2d ed., 182; Welsch v. Belleville Savings Bank, 94 Ill. 191, 204. The American decisions holding that a reversion exists when no limitation follows the bequest, negative the possibility of regarding the first interest as absolute and the limitation over as an executory bequest. Perhaps the most accurate form of statement is that the legatee has such an interest as entitles him to the use and possession of the chattel during his life. See 14 HARV. L. Rev. 407-418.

PARTNERSHIP PARTNERSHIP PROPERTY CONVEYANCE TO FIRM IN FIRM NAME. A firm continued to transact business under the name of "William Wray," a deceased partner. Land was purchased with firm money for partnership purposes, the deed of conveyance running to "William Wray as grantee. Held, that the legal title to the land vests in the several members of the firm as joint tenants. Wray v. Wray, [1905] 2 Ch. 349.

No other English case has been found deciding the effect of a deed of land to a partnership in the firm name. In reaching the decision the court implicitly relied upon a former case, in which the same point was raised in connection with a chattel mortgage. Maugham v. Sharpe, 17 C. B. (N. S.) 442. The American decisions in point as to realty show a well defined conflict of authority. See 10 HARV. L. REV. 188. The predominant American rule vests title only in

those partners whose names appear in the firm name. Holmes v. Jarrett Moon & Co., 7 Heisk. (Tenn.) 506; Gille v. Hunt, 35 Minn. 357. A number of decisions, however, tend to harmonize with the rule of the English case, which clearly commends itself to reason. Hoffman v. Porter, 2 Brock. (U. S. C. C.) 156; Byam v. Bickford, 140 Mass. 31. A deed of conveyance to be valid needs only to describe the grantee with reasonable certainty. Morse & Houghton v. Carpenter, 19 Vt. 613. Where a firm name collectively represents the individual members in usual business transactions, the name of that firm as party to a deed of conveyance would seem to describe the individual partners as grantees with sufficient certainty.

PHYSICIANS AND SURGEONS - - NECESSITY OF PATIENT'S CONSENT TO OPERATION. The plaintiff consented to allow the defendant to operate on her right ear. After anesthetics had been administered, the defendant discovered that the plaintiff's left ear was in a more serious condition than was her right. Consequently he operated upon the left ear. The plaintiff sued him for damages for an assault and battery. Held, that she may recover, since she had not consented to the operation on the left ear. Mohr v. Williams, 104 N. W. Rep. 12 (Minn.).

For a discussion of the principles involved, see 18 HARV. L. Rev. 624.

RIGHT OF SUPPORT REMOVAL OF SUPPORT

GRANITE QUArries.

A grantor made a conveyance of land in fee to the defendant, reserving title to the granite of which some was exposed; and afterwards conveyed his remaining interest in the lot to the plaintiff. Held, that though the plaintiff has title to all the underlying granite, he must leave a reasonable support for the surface and may quarry only the granite_actually exposed to view from time to time. Phillips v. Collinsville Granite Co., 51 S. E. Rep. 666 (Ga.).

Granite is included in the legal meaning of the word "minerals." Armstrong v. Granite Co., 147 N. Y. 495. Unless the conveyance shows a contrary intention either in express terms or by strong implication, the owner of minerals underlying the surface must mine them so as to leave reasonable support for the surface. LINDLEY, MINES, §§ 818, 819. But a conveyance of minerals carries with it by implication the right of way over and through the surface necessary to mine them. Turner v. Reynolds, 23 Pa. St. 199. As granite can be obtained only by means of an open quarry, and therefore without leaving any surface support, there is here a conflict of principles. However, in the present case some granite was exposed when the reservation was made, and consequently could be quarried. As a reservation will be construed most strongly against the grantor, it would not be unreasonable to subordinate the right of quarrying to the right of surface support. Harris v. Ryding, 5 M. & W. 60. Moreover, a right of way of necessity is implied only when there is no other way. LEAKE, LAW OF USES AND PROFITS OF LAND 268. This right is to be exercised with due regard to the surface owner. Chartiers Coal Co. v. Mellon, 152 Pa. St. 286. The decision seems correct; but it is an interesting matter for speculation as to whether it should be followed where none of the stone is exposed.

SALES RIGHTS AND REMEDIES OF BUYERS EFFECT OF ACCEPTANCE ON RIGHT TO SUE FOR DEFECTIVE PERFORMANCE. The Kentucky Court of Appeals has recently stood evenly divided on the question, whether, in an action by a seller for the price of machinery, acceptance by the buyer waives his right to damages for failure to deliver at the time required by the contract. Lucile Min. Co. v. Fairbanks, Morse & Co., 87 S. W. Rep. 1121. See Notes, p. 208.

INHERITANCE TAX:
A testator gave his

TAXATION PARTICULAR FORMS OF TAXATION EQUITABLE CONVERSION OF FOREIGN REAL ESTATE. executor power to sell his real estate situated in another state. At the time of his death his personal estate was insufficient to pay his debts and pecuniary legacies. Held, that the foreign real estate is equitably converted, and thereby

becomes liable as personalty to a collateral inheritance tax of the state where the testator was domiciled. In re Vanuxem's Estate, 61 Atl. Rep. 876 (Pa.).

See NOTES, p. 201.

TAXATION WHERE PROPERTY MAY BE TAXED - PERSONALTY AT DOMICILE OF OWNER. Under a statute authorizing the taxation of "all personal estate of corporations organized under the laws of Kentucky whether the property be in or out of this State," a domestic corporation was taxed on cars which were used exclusively outside the state. Held, that the tax is unconstitutional, since it is depriving a person of property without due process of law. Union, etc., Company v. Kentucky, U. S. Sup. Ct., Nov. 13, 1905. NOTES, p. 206.

See

TAX SALES - REDEMPTION-RIGHTS OF ORIGINAL OWNER AGAINST SUBVendee. A deed was given and recorded for land bought at a tax sale. Within the required period, the original owner redeemed, and received the tax deed from the purchaser, but did not get a quit-claim deed. After the period for redemption, the purchaser at the tax sale sold the property to the plaintiff who now claims title as a bona fide purchaser, since he had no actual notice of redemption. Held, that the plaintiff has no title, because sufficient notice of redemption is presumed from the fact that the purchaser at a tax sale has, by the law of the state, only an imperfect title until the period for redemption has expired. Bennet v. Southern Pine Co., 51 S. E. Rep. 654 (Ga.).

In

The decision can be rested on more fundamental grounds than constructive notice. The first purchaser's title was defeasible on redemption, and redemption had been made. At that moment ipso facto the title re-vested in the original owner. Burns v. Ledbetter, 54 Tex. 374. Redemption itself, and not record of redemption, defeats the purchaser's title. Cooper v. Shepardson, 51 Cal. 298; Fenton v. Way, 40 Iowa 196. Even in states that require record of redemption, if an owner can prove redemption in fact, a tax deed issued later will give no title, though the purchaser did not know of the redemption on account of a clerk's failure to record it. Burke v. Cutler, 78 Iowa 299. Georgia there is no provision requiring redemptions to be recorded. See Civ. Code, 1895, § 3618. Nor does the statute directing the purchaser to execute a quit-claim deed on redemption alter the case. Such statutes are to be construed liberally in favor of the parties entitled to redeem. Burton v. Hintrager, 18 Iowa 348. The Georgia statute provides that the quit-claim deed from the purchaser at the tax sale shall be prima facie evidence of redemption, not that redemption cannot be proved in other ways. If redemption is in fact proved, as here, then the purchaser, or anyone claiming under him, has lost his title absolutely, and that of the original owner must prevail.

TRUSTS CREATION AND VALIDITY TENTATIVE TRUSTS IN SAVINGS BANK DEPOSITS. A spendthrift deposited his money in savings banks in the names of his sisters as trustees for his children, and delivered to the trustees the bank-books, intending thereby to save his money from being squandered, and to have it kept for the support of himself and his family during his life, and go to his children at his death. Held, that such deposits create "tentative" and not irrevocable trusts during the depositor's lifetime. Lattan v. Van Ness, 95 N. Y. Supp. 97. See NOTES, p. 207.

TRUSTS POWERS AND OBLIGATIONS OF TRUSTEES - LIABILITY OF TRUSTEE FOR ACTS OF CO-TRUSTEE. - A trustee, with the consent of the cestui and the other trustee, sold a part of the res. Instead of reinvesting the proceeds, as was intended, he kept them; showing his co-trustee a forged receipt of the new stock which he purported to have bought. The cestui now brings action against the innocent trustee. Held, that this trustee was not negligent in dealing with his co-trustee and that he is, therefore, not liable for the defaults of that co-trustee. Shepherd v. Harris, L. R. [1905] 2 Ch. 310.

If, as in this case, there is no question of connivance or negligence, and if there is no special assumption of liability, then by a well settled rule of law, a trustee is not liable for the defaults of a co-trustee. Townley v. Sherborne,