ALIENS WHETHER A STATE COURT MAY VACATE ITS DECREE OF NATURALIZATION ON ACCOUNT OF FRAUD. - A county court of a state granted to the plaintiff in error, an alien, a certificate admitting him to United States citizenship. This certificate was obtained by a fraudulent representation of the applicant. The county attorney, as officer of this court, petitioned on this ground to have the certificate set aside. Held, that the petition cannot be granted. Peterson v. State, 89 S. W. Rep. 81 (Tex., Civ. App.).

The power to naturalize is vested by the Constitution in Congress, but this power has been conferred by statute upon certain state courts. U. S. Rev. St. $2165. Such courts, when engaged in admitting aliens to citizenship, are regarded, like true federal courts, as agents of the United States government. Re Christern, 43 N. Y. Sup. Ct. 523; People v. Sweetman, 3 Park. Cr. Rep. (N. Y.) 358. The decrees of naturalization granted by these agent courts have the force and effect of judgments. Spratt v. Spratt, 4 Pet. (U. S.) 393. As in the case of other judgments, however, the rule is that they may, if obtained by fraud, be set aside at the instigation of the defrauded party. United States v. Norsch, 42 Fed. Rep. 417. In the present case it is clear that the United States was a party to the original judgment through the medium of the county court. But the question remains, did it continue a party to the petition by the county attorney as agent for such court? If so, the above rule permitting judgments to be set aside on the ground of fraud would apply. The court, in answering this question in the negative, reads strictly, according to the ordinary rule of statutory interpretation, the statute delegating to county courts the power of naturalization. But it has been held that a United States circuit court has power to set aside a similar decree if obtained by fraud; and it may be doubted whether the statute did not intend to grant the same power to the county court. See Pintsch Compressing Co. v. Bergin, 84 Fed. Rep. 140.

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BANKRUPTCY DISCHARGE LIABILITIES FOR SUPPORT OF WIFE OR CHILD. The Act of February 5, 1903, amendatory to the National Bankruptcy Act of July 1, 1898, provided that a discharge in bankruptcy should release a bankrupt from all of his provable debts, except such as are liabilities for maintenance or support of wife or child." (U. S. Comp. St. Supp. 1903, 411.) Held, that this excepting clause does not apply to a debt incurred for the services of a physician called by the husband to attend the wife. In re Ostrander, 139 Fed. Rep. 592 (Dist. Ct., E. D., N. Y.).

Under the Act of 1898, by the weight of authority, liabilities incident to support or bastardy orders were not dischargeable in bankruptcy. In re Baker, 96 Fed. Rep. 954; Wetmore v. Markoe, 196 U. S. 68. Nor was a bankrupt's debt arising out of an express contract to support his children discharged. Dunbar v. Dunbar, 190 U. S. 340. Liabilities, therefore, in the nature of direct enforcements of the common law duty to support wife and child were excepted from discharge, but not those contractual obligations incidentally incurred in the performance of that duty. The excepting clause of the Act of 1903 can scarcely apply to this latter form of liabilities, as such a construction would exempt all debts for family necessaries from discharge in bankruptcy, a result clearly not intended. The clause, therefore, seems to be simply declaratory of the meaning of the Act of 1898, as previously interpreted by the courts, and has been so regarded. See Wetmore v. Markoe, supra. The case at hand, by its decision and dictum, confines the clause in question to those direct liabilities entailed by non-performance of the common law duty to support wife and child, and seems sound in its conclusion.

BANKRUPTCY - PREFERENCES - PERFECTING INCHOATE RIGHT TO SECURITY. The defendant, who held mortgages on the real estate of a bankrupt which had been executed in good faith for contemporaneous loans of money, had them recorded within four months of the commencement of bankruptcy proceedings. By the law of Minnesota such mortgages were not valid against bona fide purchasers and attaching and judgment creditors until recorded. Held, that the mortgages were not originally preferences, and a failure to record until

within four months of bankruptcy proceedings does not make them so. Seager v. Lamm, 104 N. W. Rep. 1 (Minn.).

For a discussion of the principles involved, see 18 HARV. L. REV. 606.

CARRIERS DISCRIMINATION EXCLUSIVE PRIVILEGES IN RAILROAD STATION GRANTED TO ONE HACK COMPANY. The plaintiff was lessee of a large Union Station in Chicago. In order to protect its passengers from excessive solicitation by the numerous hackmen who frequented the station platforms, the plaintiff granted to one carriage company the exclusive right to enter the station to solicit passengers. The excluded hackmen, among whom were the defendants, continued to enter the station. The plaintiff sought to have the defendants restrained from so doing, and also from standing upon the adjacent sidewalks to solicit custom. The Circuit Court of Appeals granted an injunction restraining the defendants from entering the station, and from so using the adjoining sidewalks as to interfere with the ingress and egress of passengers. The defendants appealed. Held, that this decree must be affirmed. Donovan v. Pennsylvania Company, 26 Sup. Ct. Rep. 91.

For a discussion of the principles involved, see 19 HARV. L. Rev. 144. CARRIERS DUTY TO ACCEPT AND CARRY PASSENGERS BLINDNESS AS GROUND FOR REJECTION. — The plaintiff, a blind man seventy-seven years of age and accompanied by an attendant, sought to purchase a ticket for a railway journey involving two or three changes of cars. The defendant's agent refused to sell it to him unless an attendant was to go with him upon the journey. Held, that such refusal was proper. Illinois Central R. Co. v. Allen, 89 S. W. Rep. 150 (Ky.).

A Mississippi decision quoted and followed by the present case is discussed in 18 HARV. L. REV. 540.

CONFLICT OF LAWS RIGHT OF ACTION-INFRINGEMENT OF FOREIGN PATENT. The plaintiff alleged in Victoria, that it owned a patent in New South Wales and that the defendant there infringed it. Held, that the court lacks jurisdiction. Potter v. Broken Hill Proprietary Co., [1905] Vict. L. Rep. 612. See Notes, p. 295.

CONSTITUTIONAL LAW IMPAIRMENT OF OBLIGATION OF CONTRACT STATUTE ALTERING CHARTER PROVISION AS TO INTERNAL MANAGEMENT OF CORPORATION. A corporation was chartered under a general law which authorized it to issue preferred stock with the unanimous consent of the stockholders. A general statute subsequently enacted in pursuance of the state's reserved power to alter charters, permitted the issuance of preferred stock with the consent of the holders of two-thirds of the capital stock. The plaintiff, a stockholder, seeks to enjoin the defendant corporation, which has secured the consent of the holders of two-thirds of the stock from issuing preferred stock. Held, that the plaintiff is not entitled to an injunction. Hinckley v. Schwarzschild, etc., Co., 95 N. Y. Supp. 357.

This decision holds that the state under its reserved power can alter the provisions in a charter which define the scheme of internal organization of the corporation, as distinguished from the rights directly conferred by the state. For a statement of the opposite view, see 18 HARV. L. REV. 549.

CONSTITUTIONAL LAW-PERSONAL RIGHTS - STATUTORY PROHIBITION OF MARRIAGE BY EPILEPTIC. A statute prohibited the marriage of an epileptic when the woman is under forty-five years of age. Held, that the statute is constitutional. Gould v. Gould, 61 Atl. Rep. 604 (Conn.).

Though similar statutes exist in Kansas, Michigan, Minnesota, and Ohio, this is believed to be the first decision as to their constitutionality. Legislation prohibiting the marriage of insane persons is not analogous, for sanity is an essential of the natural capacity to contract irrespective of any statutory provision. Statutes prohibiting the intermarriage of cousins and other near relatives, and of whites with negroes, have invariably been held constitutional. Baity v. Cranfill, 91 N. C. 293; Lonas v. State, 3 Heisk. (Tenn.) 287. But the Connecticut statute is much more stringent, for instead of merely restricting the choice, it entirely

prohibits marriage to certain persons. Since epilepsy is a disease which often leaves its mark in inferior offspring, the marriage of epileptics is a matter of public concern and of public health. As the statute is reasonable and affects all persons alike within the sphere of its operation, it is clearly justified under the police power. Barbier v. Connolly, 113 U. S. 27; see 10 HARV. L. REV. 450, 524. Analogous to this is legislation forbidding the sale of liquor to Indians, or ordering the confinement of persons infected with contagious diseases. Cf. 11 HARV. L. REV. 414, Haverty v. Bass, 66 Me. 71.

CONSTITUTIONAL LAW PRIVILEGES AND IMMUNITIES RIGHT TO ACT AS EXECUTOR.-Held, that a legislative enactment that "no_non-resident shall be appointed or act as executor" is not a violation of U. S. Const., Art. 4, § 2, which provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." In re Mulford, 75 N. E. Rep. 345 (III.).

The Supreme Court of the United States has consistently refused to define these "privileges and immunities or to describe them in general classifications. See McCready v. Virginia, 94 U. S. 391, 395. Yet Mr. Justice Washington's opinion that the constitutional provision extends only to "those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments," seems not to have been disapproved. See Corfield v. Coryell, 4 Wash. (U. S. C. C.) 371, 380. Thus, rights of a civil rather than of a political character are here protected. Accordingly there would not be included the right to hold public office or even to occupy positions of a public nature. See Austin v. The State, 10 Mo. 591, 592; 1 Mich. L. Rev. 292–298. As the court in the principal case clearly points out, an executor is a public, or, at least, quasi-public officer. See WHARTON, CONFLICT OF LAWS, 3d ed., § 605. He receives his powers only by the active consent of the courts, is generally allowed a statutory compensation, and is at all times subject to the control and directions of the courts. See CROSSWELL, EXRS. & ADMRS., §§ 5, 177, 181. A statute prohibiting the appointment of a non-resident trustee has been held unconstitutional. Roby v. Smith, 131 Ind. 342. But trustees deriving their powers wholly from the creators of the trust have in no sense an official character. See WOERNER, Am. Law of Adm., 2d ed., § 10.

CONSTITUTIONAL LAW-SELF-INCRIMINATING TESTIMONY. A state statute, known as the Kansas Anti-Trust Act, compelled witnesses to testify in regard to violations of that statute, and provided that neither should they be liable to criminal prosecutions for any violations of the act about which they testify, nor should their evidence be used against them in any criminal proceedings. Held, that the statute is not in violation of the Fourteenth Amendment, which provides "Nor shall any state deprive any person of . . . liberty. . . without due process of law." Two justices dissented. Jack v. State of Kansas, U. S. Sup. Ct., Nov. 27, 1905.

The state statute could not, of course, prevent the testimony of a witness in state proceedings from being used against him in federal courts for violations of federal statutes. For the purposes of this case, the court assumes that, "if the statute failed to give sufficient immunity from prosecution or punishment" to the witness, it would violate the Fourteenth Amendment. The decision is then reached on the basis that the danger of such prosecution in the federal courts is so "unsubstantial and remote" that it is of no consequence that the statute does not provide against it. This decision is in harmony with the same court's opinion in a previous case, that although a federal statute obliging witnesses to testify secured them no immunity in state courts, yet it did not compel self-incrimination within the terms of the Fifth Amendment. Brown v. Walker, 161 U. S. 591, 608; see 10 HARV. L. REV. 120. These two cases seem to establish the law that "the legal immunity is in regard to a prosecution in the same jurisdiction; and when that is fully given, it is enough.'

CONTRACTS MASTER AND SERVANT - UNWRITTEN RENEWAL OF A PREVIOUS CONTRACT. — A, under an express contract, employed the plaintiff for

one year at an annual salary. Without further express agreement the plaintiff continued in A's employ for several years, but was discharged in the middle of the year without cause, when A became bankrupt. The plaintiff therefore brings this action against A's assignee in bankruptcy. Held, that the plaintiff had a yearly contract with A which entitles him to recover from the defendant for his discharge by A in the middle of the year without cause. Baker v. D. Appleton & Co., 95 N. Y. Supp. 125.

The question in this case is essentially one of fact; did the parties renew the agreement? There was no express renewal, but acts may show as unequivocally as words a mutual intent to be bound. Where the facts as to a contract are not in dispute, their interpretation is a question of fact for the court, not for the jury. Chicago Cheese Co. v. Fogg, 53 Fed. Rep. 72. When one enters the employ of another under a contract for a year's service at an annual salary, and continues in the employment after the expiration of the year, the weight of authority seems to be that this raises a presumption of fact that the parties have assented to a renewal of the agreement. Adams v. Fitzpatrick, 125 N. Y. 124; N. H. Iron Factory Co. v. Richardson, 5 N. H. 294. This presumption of fact, if not rebutted, will sustain the conclusion that, as a matter of law, there was such a contract. Taylor v. City of Lambertville, 43 N. J. Eq. 107. And this contract is not open to objection under the Statute of Frauds. Tatterson v. Suffolk Manufacturing Co., 106 Mass. 56.

CRIMINAL LAW-FORMER JEOPARDY - CONVICTION OF HIGHER Offense ON SECOND TRIAL. On a charge of murder in the first degree, the plaintiffs were convicted of assault by a court of first instance of the Philippine Islands. On appeal to the Supreme Court of those islands, the judgment was reversed and the plaintiffs were convicted of murder in the second degree. Held, that the later conviction is not a violation of a legislative provision against double jeopardy. Three justices dissented. Trono v. United States, U. S. Sup. Ct.,

Dec. 4, 1905.

The case is of especial interest as being the first decision by the Supreme Court of the United States upon this point, concerning which the state courts are at variance. But see United States v. Harding, 26 Fed. Cas. 131. It is well settled that an appeal by the accused operates as a waiver of the plea of former jeopardy on a second trial. United States v. Ball, 163 U. S. 662. The conflict of authority arises as to the extent of such waiver. See WHARTON, CRIM. PLEAD., 9th ed., § 465. The weight of authority is opposed to the decision in question, and regards the accused as waiving the plea of former jeopardy only as to that part of the judgment which convicts him of guilt. People v. Gordon, 99 Cal. 227; contra, State v. Bradley, 67 Vt. 465. To hold that the plea is also waived as to the acquittal of any higher grades of crime included in the indictment would clearly seem to subject the accused to double jeopardy without his consent and so to violate any provision against such double jeopardy. While the effect of this decision will undoubtedly be to do away with many appeals on petty grounds, it will also tend to discourage those that are bona fide.

ELEVATORS - OPERATORS AS CARRIERS DEGREE OF CARE. - The plaintiff, an employee of a tenant of the defendant, was injured by the falling of an elevator which the defendant maintained and operated, and brought action for damages. At the trial the judge refused to instruct that the defendant was not liable if he had used reasonable care and prudence in the construction, maintenance, and operation of the elevator. Held, that it was error to refuse such an instruction. Edwards v. Manufacturer's Bldg. Co., 61 Atl. Rep. 646 (R. I.).

It is universally held that a common carrier must exercise a high degree of care. Readhead v. The Midland Ry. Co., L. R. 2 Q. B. 412. An operator of an elevator is not a common carrier in the strict legal sense of the term. Seaver v. Bradley, 179 Mass. 329. But the overwhelming weight of authority is that he owes the same degree of care as a common carrier. Treadwell v. Whittier, 80 Cal. 574; contra, Griffin v. Manice, 166 N. Y. 188. The argument in the

case under discussion is that common carriers must exercise great care because of the peculiar business in which they are engaged, but that the care required of elevator operators should be only that which is due to persons on premises by implied invitation. But the idea running through all the cases of common carriers and elevators alike is that public policy demands a high degree of care where so many lives are exposed to danger. The Philadelphia, etc., Rd. Co. v. Derby, 14 How. (U. S.) 468, 486; Springer v. Ford, 189 Ill. 430. The force of this argument makes the decision of the lower court seem preferable.

EQUITY - INJUNCTION - CONTRACT IN RESTRAINT OF TRADE. — Certain insurance companies entered into an agreement the object of which was to regulate the rates of insurance. The Attorney General sought, in behalf of the public, to restrain them from carrying out the agreement. Held, that in the absence of a statute authorizing the Attorney General to bring the complaint, the bill must be dismissed, although the contract was contrary to public policy being in restraint of trade. McCarter, Atty. Gen. v. Firemen's Ins. Co., 61 Atl. Rep. 705 (N. J., Ch.).

In New Jersey there is no statute prohibiting contracts in restraint of trade. Nor do such contracts appear to be positively illegal, though they are not enforceable at the instance of either party. Cf. Albright v. Teas, 10 Stew. (N. J.) 171. It is true that equity, in many cases, has enjoined a clear violation of the rights of the public at the instance of the Attorney General, although he had no express authority by statute to bring the bill. In re Debs, 158 U. S. 564; Attorney-General v. Hunter, 1 Dev. Eq. (N. C.) 12. But in general, if the plaintiff's right or the defendant's wrong is doubtful, a permanent injunction will not issue. Consolidated Canal Co. v. Mesa Canal Co., 177 U. S. 296. In New Jersey, at least, the defendant's wrong seems doubtful; it lies entirely within the discretion of the court to determine whether it is too doubtful to warrant the issue of an injunction.

EQUITY Rescission of Contract for MUTUAL MISTAKE OF FACT.The defendant employed a real estate broker to sell for him property on a certain avenue. The broker pointed out to the plaintiff houses on another avenue as the ones for sale, and after inspection the plaintiff signed a contract calling for the purchase of the first-named property. Held, that because of the broker's misrepresentations, whether honest or not, the plaintiff can have the contract cancelled. Silverman v. Minsky, 109 N. Y. App. Div. 1. See NOTES, p. 290.

EVIDENCE-DECLARATION IN COURSE OF DUTY ORAL STATEMENT OF DECEASED PHYSICIAN TO PATIENT. — In a suit by a husband for the dissolution of marriage, the wife made counter-charges of cruelty. In order to show the cause of an illness which she wished to prove her husband had been responsible for, she offered in evidence a statement made to her during her illness by the attending physician, who had since died. Held, that the evidence is inadmissible. Dawson v. Dawson, 22 T. L. R. 52 (Eng., Prob., Divorce & Adm., Nov. 10, 1905).

Written statements of a deceased person made in the ordinary course of his duty are everywhere admissible in evidence. 2 WIGMORE, EVIDENCE, § 1518. Oral statements were said by Lord Campbell to be included in this exception to the hearsay rule. Sussex Peerage Case, 11 Cl. & Fin. *85, *113. His remark, though not necessary to the decision, has been followed by the English judges. Reg. v. Buckley, 13 Cox C. C. 293. The present case seems opposed to Reg. v. Buckley, though it may perhaps be reconciled with it on the ground that a physician frequently refrains from telling his patients the truth about their condition, and that therefore statements made under such circumstances are not so trustworthy as those made under a positive duty to tell the truth. The two cases are otherwise in conflict, however, and the present one may mark the return of the English courts to their old rule. The law on the point in this country is not settled, but shows little tendency to accept the doctrine of Reg. v. Buckley. Cf. Williams v. Walton and Whann Co., 9 Houst. (Del.) 322, 9 HARV. L. REV. 288. At least one case reaches the result of Reg. v. Buckley,