liability, so that in some cases, notably where the element of dishonesty is present, the servant's motive may play an important part in determining the materiality of his breach. See Shaver v. Ingham, 58 Mich. 649.

CONTRACTS - Defenses · - IMPOSSIBILITY. The plaintiff, a seaman, contracted with the defendant to go on a voyage from Glasgow to Hong-Kong and return, ports in any rotation. After proceeding part of the way on the voyage, the plaintiff learned that the vessel was laden with contraband of war and bound for a Japanese port. Held, that he was justified in refusing to go on. Sibery v. Connelly, 22 T. L. R. 174 (Eng., K. B. D., Dec. 18, 1905). See NOTES, p. 462 CONTRACTS SUITS BY THIRD PERSONS NOT PARTIES TO CONTRACT CITIZENS SUING ON CONTRACT TO SUPPLY CITY WITH WATER. water company, the defendant's predecessor, made a contract with a village to supply the residents thereof with water at rates not exceeding a fixed maximum. Held, that a resident may sue in equity to restrain the defendant from collecting a higher rate. Pond v. New Rochelle Water Company, 34 N. Y. L. J. 1257 (N. Y., Čt. App., Jan. 9, 1906).

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In New York the Lawrence v. Fox doctrine, which was originally restricted to cases where the promisee was under some legal or equitable obligation to the third person, has been extended to cases of mere moral duty, such as a parent owes to a child, or a husband to his wife. See 15 HARV. Ĺ. Rev. 767, 780. This case makes a further extension in holding that the interest which a municipality has in providing its inhabitants with water at reasonable rates is sufficient to entitle an inhabitant to sue on a contract between the municipality and a water company. But see Wainwright v. Queens County Water Co., 78 Hun (N. Y.) 146, 152. Yet in New York, as elsewhere, a third party acquires no right to sue merely because he is incidentally benefited by the contract. Durnheer v. Rau, 135 N. Y. 219. And courts hold almost universally that a contract between a city and a water company to furnish water at a certain pressure is intended for the benefit of the community as a whole and not of individuals; so that one whose house is destroyed by fire through the failure of the water company to provide the requisite amount of pressure has no action on the contract. See 15 HARV. L. Rev. 767, 784; 13 ibid. 226. In the principal case it is less difficult to contend that the contract was intended to benefit the individual consumers. See Allen & Currey Mfg. Co. v. Shreveport Water Works Co., 113 La. 1091; contra, Cleburne Water Co. v. City of Cleburne, 13 Tex. Civ. App. 141, 143.

CRIMINAL LAW — GROUNDS FOR GRANTING NEW TRIAL READING OF NEWSPAPER BY JURORS. In a trial for murder the jury returned a verdict of guilty in the first degree. The defendant sought a new trial on the ground that several jurors during the trial had read a newspaper article upon the case exhibiting a strong bias against him. Held, that though the reading of the article was misconduct, it furnishes no ground for a new trial, since the rest of the record so clearly establishes the defendant's guilt that whether the jury read the article or not they could have returned no other verdict. One justice dissented. State v. Williams, 105 N. W. Rep. 265 (Minn.).

In general an appellant, to obtain a reversal, must show not only that error occurred, but that he was substantially prejudiced thereby. Milby v. United States, 120 Fed. Rep. 1. The fact that one or more jurors during a trial for felony read newspaper comments on the crime or case is generally conceded to be misconduct. Moore v. State, 36 Tex. Cr. App. 88. Yet, if it appears that the comments were either favorable to the appellant or not of a nature to prejudice the jury against him, this will not be ground for reversal. United States v. Reid, 12 How. (U. S.) 361. If, however, the nature of the article read was such as might have aided the jury in arriving at their verdict, the great weight of authority is that a new trial should be granted. Mattox v. United States, 146 U. S. 140; People v. Stokes, 103 Cal. 193. It seems just that where the rest of the record independently establishes the defendant's guilt beyond a reasonable doubt, there should be no reversal for error as to

a point of law. Milby v. United States, supra. But whether a similar rule should apply to prejudicial misconduct by the jury is questionable, on grounds of public policy. By the weight of authority, at any rate, prejudicial misconduct is absolute ground for reversal. Commonwealth v. Landis, 12 Phila. (Pa.) 576.

CRIMINAL LAW SENTENCE UNAUTHORIZED FIXING OF MAXIMUM TERM OF IMPRISONMENT. The petitioner was convicted under an Indeterminate Sentence Act, requiring the court to fix the minimum term while the maximum is provided by law. The trial court, however, besides fixing a minimum term, added a maximum below the statutory period. After the expiration of this maximum period the prisoner brought habeas corpus. Held, that the petitioner is subject to the statutory maximum, and the writ therefore does not lie. Two judges dissented. Ex parte Duff, 105 N. W. Rep. 138 (Mich.).

A writ of habeas corpus is properly brought for the detention of a prisoner after his term of imprisonment has expired. Ex parte Lange, 18 Wall. (U. S.) 163. The Michigan court has already held that the act in question does not authorize the court to fix a maximum term. In re Campbell, 101 N. W. Rep. 826. The maximum provided by law automatically operates as part of the sentence. The question therefore is: did the imposition of the unauthorized maximum operate as a substitution for the statutory maximum? The weight of authority and the current tendency are that a sentence is valid as to the extent of the court's authority, and a nullity as to the excess. In re Taylor, 7 S. Dak. 382. A prisoner improperly sentenced below the statutory minimum cannot procure an immediate discharge on a writ of habeas corpus. State v. Klock, 48 La. Ann. 67; but see Ex parte Berner, 62 Cal. 524. Nor will it issue for an excessive sentence. People v. Baker, 89 N. Y. 460; United States v. Pridgeon, 153 U. S. 48, 62. Therefore, in the present case, immediately after sentence, the prisoner's only remedy would have been a writ of error, resulting simply in a remanding of the judgment so as to strike out the unauthorized maximum, a result of no practical benefit to the prisoner. Nor should a different result be reached after the inadequate sentence is served. The unauthorized maximum is clearly severable as a surplusage from the proper minimum, and the prisoner's rights are to be determined as though no maximum were fixed.

DEATH BY WRONGFUL ACT — Defenses TO STATUTORY LIABILITY — LIMITATION OF ACTION. — Held, that under a statute which allows a personal representative an action for the wrongful death of the deceased, the cause of action accrues, not upon the death, but upon the appointment of the administrator. Crapo v. The City of Syracuse, 76 N. E. Rep. 465 (N. Y.). See NOTES, p. 458.

DECEIT - PARTICULAR CASES NEGLIGENTLY DEALING WITH WORTHLESS NOTE. — The defendant, after forging a promissory note with intent to defraud any one to whom it should come, negligently left it where a wrongdoer found it. Later the wrongdoer put it into circulation. The plaintiff, a bona fide purchaser, brought an action of tort. Held, that he has no cause of action. Costello v. Barnard, 34 Banker and Tradesman, 195 (Mass., Sup. Ct., Jan. 8, 1906).

The first requisite of deceit is a representation by the defendant to the plaintiff or to the class to which the plaintiff belongs. See Polhill v. Walter, 3 B. & Ad. 114. Here the defendant was merely preparing to make a representation to the plaintiff. In a somewhat analogous case of libel, if a defendant should carelessly leave a defamatory document on his desk where a third person might reasonably be expected to see it, and some third person did see it, that might be a sufficient publication. See ODGERS, LIBEL AND SLANDER, 4th ed., 156. But in a case like the present, it is far more difficult to maintain that the defendant should be held liable, if some wilful intervening person should take active measures to lay before the plaintiff a representation which the defendant himself was merely preparing to make. And an action for negligence, eo nomine, could not lie here, because the negligence was not the proximate cause of the damage. That a general fraudulent intent accompanies the negligence ought not to create an absolute liability. If A, after loading a gun

with intent to shoot B, negligently leaves it where C finds it, and if C then wilfully shoots B, A could scarcely be held liable to B. But cf. Meade v. C., R. I. & P. Ry. Co., 68 Mo. App. 92, 101.

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DEEDS EXCEPTIONS AND RESERVATIONS RESERVATION OF EASEMENTS: OPERATION AS RESTRICTIVE Agreement. A deed poll contained the clause: "A passageway is to be kept open and for use in common between the two houses ten feet in width, five feet of said passageway to be furnished by (the grantee) and five feet by me from land lying east of the land here conveyed.' There was no existing passageway. An action was brought after the grantor's death for breach of a warranty against incumbrances in a later deed. Held, that the clause, though not creating a legal easement by way of exception or by reservation beyond the grantor's life, is a restrictive agreement perpetually enforceable in equity and therefore is an incumbrance. Bailey v. Agawam Nat. Bank, 76 N. E. Rep. 449 (Mass.).

According to most American decisions, the clause would create a legal easement in fee in the grantor, though "heirs" be not mentioned. 13 HARV. L. REV. 404; Winthrop v. Fairbanks, 41 Me. 307. Massachusetts, having denied the creation by exception or reservation of an easement for longer than the grantor's life, later introduced a questionable modification allowing the exception in fee of a way already located. White v. N. Y., etc., Rd. Co., 156 Mass. 181. The present novel decision is a further advance, but by a more scientific route, toward desirable uniformity with the prevailing view. Although not decided in this case, it would seem also that language of exception, reservation, or regrant should be construed as an agreement by the grantee. Cf. Case v. Haight, 3 Wend. (N. Y.) 632. A restrictive agreement is, of course, enforceable against subsequent grantees with notice. Tulk v. Moxhay, 2 Ph. 774; see 17 HARV. L. REV. 174. And since recording acts provide sufficient constructive notice, it appears that reservations of rights in granted property are fully effectual in Massachusetts, though some of the remedies must be sought in equity. The case must be regarded as overruling the effect of former decisions denying equitable relief, after the immediate grantor's death, upon clauses which are, to say the least, distinguishable with great difficulty from that in question. Cf. Ashcroft v. Eastern Rd. Co., 126 Mass. 196; Simpson v. Boston, etc., Rd., 176 Mass. 359.

CORROBORATION.

EVIDENCE CONFESSIONS NECESSITY FOR The defendant was charged with forging a warranty deed and, while under arrest, made a full written confession of his guilt. At the trial no independent evidence whatever was given to prove the forgery. Held, that the confession alone was insufficient to sustain a conviction. Blacker v. State, 105 N. W. Rep. 302 (Neb.).

The view of the early common law was that a confession, being so strongly against interest, was the most reliable kind of evidence. See Attorney-General v. Mico, Hard. 137, 139. It is reasonably clear that until the last century extrajudicial confessions in England were received in evidence without corroboration. Cf. Hulet's Trial, 5 How. St. Tr. 1186, 1189. This is, perhaps, the present English rule, except in cases of homicide. Rex v. Unkles, Ir. R. 8 C. L. 50, 58; see 3 WIGMORE EV., § 2070, note 4. While the point is still unsettled in a few American jurisdictions, the great majority of courts, probably influenced by a desire to guard against false confessions and to increase the humanity of the criminal code, will not receive an extrajudicial confession without corroborative evidence. Of these, some hold that any related facts consistent with the truth of the confession are sufficient to support it. Bergen v. People, 17 Ill. 426. The greater number require independent evidence of the corpus delicti itself. Johnson v. The State, 59 Ala. 37. A few require evidence not only to prove the criminal act, but to show the defendant's connection therewith. Harris v. The State, 28 Tex. App. 308. The first of the three views just noted seems preferable because it lets in valuable evidence without unnecessary caution. EVIDENCE DYING DECLARATION SUBJECT-MATTER OF DECLARA- The defendant, a railroad brakeman, was prosecuted for the murder of

TION.

a young boy whom he shot from the caboose of a train. His defense was that having been struck by a stone he shot without seeing any one, for the purpose of scaring the person who had thrown the stone. The government introduced the deceased boy's dying declaration that he had not thrown anything at the train nor incited anybody to do so. Held, that the declaration is admissible. Burroughs v. United States, 90 S. W. Rep. 8 (Ind. T.).

Like other exceptions to the rule against hearsay evidence, the courts have treated rigorously dying declarations. This exception has now become limited to cases of criminal homicide where the cause of the declarant's death is the subject-matter of the indictment. 2 WIGMORE, Ev., 1st ed., §§ 1432, 1433. How closely the declaration must relate to "the circumstances of the death" has not been clearly defined. The tendency of the courts has been to construe this phrase strictly to mean the immediate circumstances of the death. An extreme example was the exclusion of a declaration as to an occurrence of three hours before the fatal injury. People v. Smith, 172 N. Y. 210. In general the courts have excluded statements as to prior transactions. State v. McKnight, 119 Ia. 79. If the declaration in the present case related to any past transaction, according to authority it would be inadmissible; but fairly construed it relates to "immediate circumstances" so that the ruling seems in accordance with precedent. State v. Parker, 172 Mo. 191. Indeed courts might well admit declarations as to prior transactions provided they concerned facts relating to the declarant's death, for such declarations seem within the real reason of the exception, namely, the difficulty of securing other evidence. See State v. Petsch, 43 S. C. 132.

FEDERAL COURts - JurisdictION BASED ON Diversity of CitIZENSHIP— JOINT ACTIONS. - The plaintiff's intestate was killed by a train operated by an Alabama corporation. The plaintiff sued the company and the conductor and engineer of the train jointly on the ground that the two last-named persons were guilty of negligence in managing the train. His action against the company was based solely upon the latter's liability as principal for the acts of its servants. The plaintiff, the conductor, and the engineer were all citizens of Tennessee; the company had been incorporated in Alabama. A federal statute provided that when there shall be a controversy which is wholly between citizens of different states and which can be fully determined as between them, it may be removed to the federal courts. Held, that this cause is not removable from the state to the federal courts, even though the actions against the company and against the officials were not properly joined, because by electing to sue the defendants jointly, the plaintiff has determined the character of the controversy, and, for purposes of jurisdiction, it will be considered joint. Alabama, etc., Ry. Co. v. Thompson, U. S. Sup. Ct., Jan. 2, 1906. For a discussion of a similar case, see 17 HARV. L. REV. 494.

HUSBAND AND WIFE VOLUNTARY ANTENUPTIAL Conveyances. The defendant held title to land under a voluntary conveyance from his father, not recorded until after the second marriage of the father. This deed was made with intent to defeat the marital rights of any one the father might thereafter marry. Held, that equity will give the grantor's widow dower and homestead in the premises, even though at the time of conveyance she and the deceased grantor were strangers. Higgins v. Higgins, 76 N. E. Rep. 86 (Ill.). See NOTES, p. 459.

INSURANCE CONSTRUCTION OF PARTICULAR PHRASES IN STANDARD FORMS INCONTESTABILITY. An insurance contract contained the following clause: "This policy is incontestable from date of issue for any cause, except non-payment of premiums." The insurance company had, however, actually relied on the representations of the insured at the time of issuing the policy. Held, that in an action on the policy the company is not debarred from the defense of fraud. Reagan v. Union Mutual Life Ins. Co., 76 N. E. Rep. 217 (Mass.).

It is a well-recognized doctrine that a clause in an insurance policy providing for incontestability after a reasonable lapse of time will debar the insurer

after the lapse of such time from setting up fraud as a defense in an action on the policy. Wright v. Mutual, etc., Ass'n, 118 N. Y. 237. By this doctrine such a clause is regarded as analogous to the statutes of limitations, and supportable on the same grounds. But when the clause provides for immediate incontestability, and the insurer nevertheless relies on the false representations of the insured, to the latter's knowledge, it seems clearly against public policy to give effect to the provision. Cf. Welch v. Union Central Life Insurance Co., 108 Ia. 224. The court, however, explicitly disclaims any intention of passing upon the availability of the defense in a case where, though there were fraudulent representations in fact, yet the contract was not induced by reliance upon such representations, but by an investigation conducted by the defendant.

MARRIAGE - VALIDITY - EFFECT OF SECURING DIVORCE FROM PRIOR HUSBAND AFTER REMARRIAGE. - The plaintiff, bona fide though erroneously believing her former husband dead, went through the form of marriage with the defendant. Later, merely as a matter of precaution, she secured a divorce from her former husband, and for many years continued to cohabit with the defendant as his wife. In a suit for support, brought by the wife, the defendant relied on the absence of a lawful marriage. Held, that the plaintiff became the lawful wife of the defendant after the divorce. Chamberlain v. Chamberlain, 62 Atl. Rep. 680 (N. J., Eq.).

When a man and a woman have lived together illicitly, a presumption arises that their subsequent relations continue illicit, and this presumption may be overcome only by proof of a later express contract for lawful marriage. Appeal of Reading Fire Ins. Co., 113 Pa. St. 204. The analogy would seem complete between this class of cases and those involving a relation impossible of valid consummation because of some legal, though unknown, impediment. No such express contract could probably be found in the present case, as the parties would naturally rely upon the supposedly binding marriage, rather than upon any theory of a common law marriage after the divorce. Cf. Holabird v. Atl. Ins. Co., 2 Dill. (U. S. C. C.) 166 n. This reasoning thus results in giving a morally innocent relation no greater effect than an obliquitous one. The present decision, in recognizing the marriage, reaches a desirable result without developing the reasons therefor. Such a result is obtainable by arbitrarily eliminating the presumption of a continuing illegality in the relation on account of the moral innocence of the parties, or by invoking the doctrine of estoppel. Cf. Foster v. Hawley, 8 Hun (N. Y.) 68; Chamberlain v. Chamberlain, 59 Atl. Rep. 813.

PLEDGES DUTY OF PLEdgee to SelL - REQUEST BY PLEDGOR. — In answer to a suit on a note the defendant alleged that upon the maturity of the note he had requested the plaintiff to sell the shares of stock pledged with the plaintiff as security, and that the stock, if then sold, would have been sufficient to pay all claims of the plaintiff upon the note. Held, that this is a good defense. Bank of Pittsburgh v. Porter, 36 Pittsb. Leg. J. 169 (Pa., C. P. No. 3, Allegheny Co., Nov. 25, 1905).

It is more commonly said, there being one or two holdings and several dicta to this effect, that a pledgee is under no duty to sell the pledge at the request of the pledgor. Cooper v. Simpson, 41 Minn. 46; Mueller v. Nichols, 50 Ill. App. 663. Yet it seems desirable to hold that by his acceptance of the pledge the pledgee becomes bound to sell it at the request of the pledgor, the principal debt being due, provided that the market value of the pledge exceeds the principal debt. Cf. Moore v. Brooks, 2 Pa. Co. Ct. 619; see Richardson v. Insurance Co., 27 Gratt. (Va.) 749, 753. In cases where the market value of the pledge is less than the principal debt, the pledgee should not be subjected to any duty to sell at the pledgor's request, since the pledgee, too, has an interest in the pledge, and should not be deprived of the chance of an increase in the value of his security. But the moment the value of the pledge exceeds the amount of his debt, he no longer has any interest to serve in not selling the pledge, and therefore should not be