a wife, whom the law does not permit to be abandoned, to maintain against her husband a bill for her support, even if her guilt bars her from securing any form of divorce. Cf. Bascom v. Bascom, Wright (Oh.) 632.

DOWER WHETHER BARRED BY Void Divorce. A wife, domiciled in New York, procured a divorce in Kansas which was invalid by the law of New York. On the death of her former husband she brought action for dower. Held, that having submitted to the jurisdiction of the Kansas court she cannot now question its decree of divorce, and is therefore barred of her right of dower. Voke v. Platt, 96 N. Y. Supp. 725.

A valid decree of divorce in the absence of statute will bar the wife's right to dower. Pullen v. Pullen, 52 N. J. Eq. 9; see 2 BISHOP, MAR., DIV., & SEP., §§ 1632-1640. This result follows whether the divorce be decreed by a domestic or foreign tribunal. Hood v. Hood, 110 Mass. 463. But where the divorce is void the marriage relation still subsists, and the wife's right to dower is therefore unaffected. Cheely v. Clayton, 110 U. S. 701. Where, however, the wife has removed to a foreign jurisdiction and obtained a decree for divorce, it is doubtful whether she can be heard to say that the decree is void and that she is entitled to her dower. The essential elements of an estoppel are obviously lacking. Todd v. Kerr, 42 Barb. (N. Y.) 317; Holmes v. Holmes, 4 Lans. (N. Y.) 388. Upon the principle, however, that where a party has invoked the jurisdiction of a court and submitted himself thereto, he cannot thereafter be heard to question such jurisdiction, it is held that the wife's claim is barred. Starbuck v. Starbuck, 173 N. Y. 503; Ellis v. White, 61 Ia. 644. Whether this extension of the doctrine of estoppel has yet become generally recognized as law may perhaps be doubted. That it will ultimately be so recognized seems probable from the tendency of the decisions.

ESTOPPEL ESTOPPEL IN PAIS - PART OF A TRANSACTION. — An agent made a contract with A which was alleged to have been beyond the scope of his authority. After A had performed a portion of the contract he notified the principal, who failed to repudiate the agreement until performance had been completed. Held, that the principal's silence may go to the jury as evidence of intentional ratification, but that any liability based upon equit able estoppel must apply only to the performance subsequent to the day the principal was notified. St. Louis Gunning Advertising Co. v. Wanamaker & Brown, 90 S. W. Rep. 737 (Mo., St. Louis Ct. App.). See NOTES p. 614.

-

EVIDENCE- - SIMILAR FACTS AND OCCURRENCES - CUSTOM AS EVIDENCE OF NEGLIGENCE. - The plaintiff, a cable splicer employed by the defendant company, while working on a telephone pole received a shock which threw him to the ground. Held, that the test of the company's negligence in its overhead construction is whether it used the care ordinarily exercised by other companies in the same business. Law v. Central, etc., Telegraph Co., 140 Fed. Rep. 558 (Circ. Ct., W. D., Pa.).

A servant of the defendant telephone company, while at work on top of a pole, failed to catch a tool which another servant threw up to him. In its fall the tool injured a pedestrian. Held, that as tending to show negligence, evidence that it was customary to haul tools up by a line is admissible. Brunke v. Missouri & K. Telephone Co., 90 S. W. Rep. 753 (Mo., Kansas City Ct. App.).

The first case, though supported by some authority, seems clearly indefensible on principle. The court sweeps away the distinction between a rule of evidence and a rule of substantive law. The care exercised by the ordinary prudent man under the circumstances is the fixed standard. What care other men, engaged in the same business, have been accustomed to use may be greater or less than that of the ordinary prudent man; and therefore, to show that a company acted in a particular matter as other companies are accustomed to do, does not show conclusively that that company was not negligent. Maynard v. Buck, 100 Mass.

40. But the care customarily employed by others is undoubtedly of strong probative value in determining what is due care under the circumstances. Accordingly, as a theoretical matter, the second case correctly admitted it as evidence. See WIGMORE, Ev., § 461. Practically, however, a jury is very likely to accept the customary conduct of others, not as evidence merely, but as the standard of care itself, and then to test the defendant's conduct by that standard. Because of this strong tendency to mislead, perhaps the best rule would be to exclude such evidence altogether. See 14 HARV. L. REV. 156.

FEDERAL Courts - JurisdicTION AND POWERS - WHAT LAW GOVERNS CONTROVERSIES BETWEEN STATES. - The State of Missouri filed a bill in the Supreme Court of the United States for an injunction restraining the State of Illinois from using the Chicago Drainage Canal to discharge the sewage of the city of Chicago into the Mississippi River by way of the Illinois River, on the ground that the pollution thus caused was a nuisance. Held, that there is no evidence of sufficient pollution to constitute a common law nuisance; semble, that the plaintiff in such a suit must prove sufficient pollution to constitute a casus belli between independent nations. State of Missouri v. State of Illinois, etc., 200 U. S. 496. See NOTES, p. 606.

FEDERAL COURTS - RELATION OF STATE AND FEDERAL COURTS RIGHT OF REMOVAL. To an indictment for murdering Governor Goebel, the defendant pleaded a pardon duly executed by Governor Taylor. The pardon was held void by the highest court of Kentucky on each of three successive appeals. The defendant thereupon petitioned the federal court for a removal of the cause under a federal statute providing that a cause may be removed to the federal courts when any criminal suit is brought in a state court against a person who cannot enforce in the judicial tribunals of the state any right secured to him by any law providing for the equal civil rights of citizens of the United States. Held, that whether or not the defendant would be denied such federal rights by the action of the state court, the case is not removable to the federal court, since he is not being deprived of his rights by the state laws or constitution. Kentucky v. Powers, 26 Sup. Ct. Rep. 387.

It is commonly stated that the removal statute applies primarily, if not exclusively, to a denial of federal rights by the constitution or laws of the state. See Virginia v. Rives, 100 U. S. 313, 319. In the present case the court construed the word "laws" as used in these dicta to mean "statutes." Such a construction is not justified by the natural meaning of the word or by the premise upon which the dicta are founded. The theory underlying the rule is that in order to remove a cause the accused must show a certainty of being denied a federal right, and that he cannot establish this unless there be a law which the state court will presumably follow, denying him such a right. This reason not only fails to support the present decision, but it points to the opposite result, for under the doctrine of stare decisis the Kentucky court would certainly follow its prior decisions denying the validity of this pardon.

HUSBAND AND WIFE-CONTRACTS BETWEEN HUSBAND AND WIFE SEPARATION AGREEMENTS. — A husband and wife already living apart entered into an agreement whereby the husband promised to provide the wife with a certain income for the support of herself and children. Held, that the contract is enforceable, although made directly with the wife without the intervention of a trustee. Effray v. Effray, 97 N. Y. Supp. 286.

In holding that such a contract is not void as against public policy, the decision accords with both the English and American law. Allowing the agreement to be made directly with the wife without the intervention of a trustee is in harmony with the modern tendency to remove the disabilities of married women. For a discussion of the principles involved, see 15 HARV. L. REV. 147.

INFANTS UNBORN CHILDREN -WHEN CHILD EN VENTRE SA MÈRE CONSIDERED BORN. — A will gave estates tail successively to the sons of a living person, with a proviso that any son born during the testator's lifetime should not take a larger interest than an estate for life. Held, that a son en ventre sa mère at the testator's death and subsequently born alive takes a life estate only. Villar v. Gilbey, 22 T. L. R. 347 (Eng., C. A., March 8, 1906).

The rule was early laid down that an infant en ventre sa mère would be regarded as born if it were for his benefit. Doe d. Clarke v. Clarke, 2 H. Bl. 399. But the English court formerly refused to apply this rule if the child's interest would be injured thereby. Blasson v. Blasson, 2 De G. J. & S. 665. Recent English decisions make a considerable extension, applying the rule when considering the infant as born will benefit its parent and not injure the infant. In re Burrows, [1895] 2 Ch. 497. Further, it is held that for the purposes of the Rule against Perpetuities, a child en ventre sa mère will be regarded as a life in being even though it is prejudiced by being considered as born. In re Wilmer's Trusts, [1903] 1 Ch. 874, [1903] 2 Ch. 411. The proviso in the principal case was expressly confined to children "born," and it is a fiction so to regard an infant en ventre sa mère. The result is that the infant takes a life estate instead of an estate tail. The present decision virtually abrogates the doctrine of Blasson v. Blasson, and radically changes the English law. In only one of the cases cited by the court was the infant prejudiced by the fiction. Cf. In re Wilmer's Trusts, supra. That decision, however, finds explanation in the arbitrary nature of the Rule against Perpetuities, which regards the period of gestation, when gestation actually exists, as a term in gross. See GRAY, RULE AGAINST PERP., 2d ed., §§ 220-222.

1

INSURANCE - - AMOUNT OF RECOVERY EFFECT OF OTHER INSURANCE: PRO RATA CLAUSE. A partner insured for $4,000 his two-thirds interest in firm property worth $4,090.53. The firm also insured its property for $1500 by a policy containing a pro rata clause. A fire damaged the property and the partner recovered $733.12 upon his personal insurance. The firm subsequently sued upon its policy. Held, that since the partner's risk and interest are not the same as those of the partnership the policies are not to be pro-rated. Yanko & Lewitas v. Standard Fire Ins. Co., 23 Lanc. L. Rev. 163 (Pa., Super. Ct., Lanc. Co., March 12, 1906).

A pro rata clause, providing that the insured shall not recover on the policy a greater proportion of his loss than the amount thereby insured bears to the whole amount of insurance on the property, operates only so far as the same property, risk and interest are insured. The conclusion that the interests of the partner and of the firm are different is reached by viewing a partnership as a legal entity. But under the more generally accepted theory the interest of a firm in its property seems to be precisely the sum of the interests of all the partners. See LINDLEY, PARTNERSHIP, 7th ed., 128, 360. This is not altered by the fact that the partnership relation renders it impossible for any member to convey away his separate title to firm property. See Sindelare v. Walker, 137 Ill. 43. As to any partner's portion of the property right the interest of the firm coincides with the interest of such partner, and with respect to the coincident insurance it would seem that the companies should prorate. Pennsylvania, however, holds that where property is only in part the same there is no double insurance within the meaning of the pro rata clause. Meigs v. Insurance Co. of No. Am., 205 Pa. St. 378. This rule appears to govern the principal case. The contrary doctrine upheld in New York is preferable. See Ogden v. East River Ins. Co., 50 N.Y. 388.

EXISTING LAWS IN

INTERNATIONAL LAW CHANGE OF SOVEREIGNTY PORTO RICO EFFECT OF ANNEXATION THEREON. The Foraker Act established a United States District Court of Porto Rico, and provided that the laws and ordinances of Porto Rico then in force should, with certain limitations, continue unchanged. After the passage of this Act, the virtual plaintiff below brought a common law action of trespass on the case, which action was not

only unknown to the civil code of Porto Rico, but was absolutely in conflict with the remedies therein provided. Held, that as the code provides for such a case, the proceedings below were null and void. Two justices dissented. Perez v. Fernandez, U. S. Sup. Ct., April 23, 1906.

Though this decision is of important practical significance in the administration of our new insular possessions, it is simply an application of the established doctrine that the laws of a legal unit remain substantially unaffected by conquest or change of sovereignty. See, generally, 11 HARV. L. REV. 343; 15 ibid. 220; 19 ibid. 131.

-

LIBEL AND SLANDER - Privileged CommunicatIONS LIBEL PER SE. The declaration charged that the defendant maliciously and falsely published concerning the plaintiff, [then a candidate for a minor office in the Republican party], an article containing statements that plaintiff "is absolutely devoid of any knowledge of the customs of polite men . . . devotes his time and energy more to assisting the Tammany leaders than to working for his own nominal party... apparently knows no more and cares no more for political principles than he does of the Silurian age in geology. . . ." To this declaration the defendant demurred. Held, that the article is not libelous per se, and in the absence of an allegation of special damage does not set forth a cause of action. Duffy v. New York Evening Post, 109 N. Y. App. Div. 471.

It is difficult to support this decision. Although there is some confusion in the authorities as to the exact limitations of "fair comment" on public characters, it is universally admitted that it never protects false statements of fact. Burt v. Advertiser Newspaper Co., 154 Mass. 238, 242. The phrase "libelous per se" is used in two senses: first, referring to matter which is libelous on its face, aside from collateral circumstances, and second, referring to matter which is libelous without the allegation of special damage. Walker v. Tribune Co., 29 Fed. Rep. 827. The second signification is most commonly illustrated in cases of slander and it has been disputed whether it is applicable to libel at all. ODgers, Libel AND SLANDER, 4th ed., 353. The present pleadings show a libel per se, it is believed, whichever use of the phrase is adopted, for the statements set forth in the declaration charge the commission of acts amounting to party treason, and the demurrer admits their publication. Hamilton v. Eno, Si N. Y. 116; Ulrich v. New York Press Co., 50 N. Y. Supp. 788 (Sup. Ct.).

1

-DE

POLICE POWER REGULATION OF PROPERTY AND USE Thereof STRUCTION OF ILLEGALLY USED FISH-NETS WITHOUT JUDICIAL PROCESS. An officer in pursuance of a state statute had without judicial process seized, and was about to sell, illegally used fish-nets. Held, that the owner cannot recover the nets, as the statute is constitutional. Two justices dissented. Daniels v. Homer, 139 N. C. 219.

The United States Supreme Court has held that a statute providing for the destruction of fish-nets illegally used without a hearing was constitutional, notwithstanding the Fourteenth Amendment. Lawton v. Steele, 152 U. S. 133 ; S. C., 119 N. Y. 226. The weight of authority seems, on the whole, to support such a decision, and it may well, on principle, be justified under the police power as an emergency means of abating a nuisance. In the present case, however, by allowing a sale after removal, the court makes an advance wrong in theory and contrary to the authorities. A statute essentially the same has been held unconstitutional. Edson v. Crangle, 62 Oh. St. 49. So also a statute providing for the sale without hearing of a trespassing ship was held unconstitutional. Colan v. Lisk, 135 N. Y. 188. This may perhaps be distinguished by the far greater value of the subject matter. But as the value of the fish-net in the principal case was $60, the same answer cannot be made to those cases holding unconstitutional similar statutes providing for the sale of a tortfeasor's horse or gun or of vagrant cows. Dunn v. Burleigh, 62 Me. 24: McCounsell v. McKillip, 65 L. R. A. 610 (Neb.); Rockwell v. Waring, 35 N. Y. 302.

PUBLIC OFficers TERM OF OFFICE POWER OF LEGISLATURE TO EXTEND TERM. A statute which created the office to which an incumbent had been elected, required the election of a successor in 1905. A later statute, passed during incumbency, provided that the election should take place in 1906. Held, that this extension of the term is unconstitutional. State ex rel. Hensley v. Plasters, 105 N. W. Rep. 1092 (Neb.).

Where the constitution itself creates the office and expressly fixes or limits the term, the legislature is powerless to extend the term directly or indirectly. State ex rel. Attorney-General v. Brewster, 44 Oh. St. 589. But where the office and the term are the creatures of the legislature, there is abundant authority that the legislature has power to make reasonable alterations in the date of an election or of the beginning of a term, though incidentally the term of an incumbent is lengthened thereby. Common Council v. Schmid, 128 Mich. 379. To these two main propositions are attached several corollaries. Thus, a constitutional provision that no officer shall hold for a longer term than that for which he was elected does not prevent the incidental extension of a term where the constitution and the statute under which the officer was elected provide that he shall hold office till his successor is elected and qualifies. State ex rel. Meredith v. Tallman, 24 Wash. 426; cf. Gemmer v. State ex rel. Stephens, 163 Ind. 150. Yet if the constitution creates the office and requires the legislature to fix the term, an extension thereof is held improper. People ex rel. Fowler v. Bull, 46 N. Y. 57. The principal case may be supported on the ground that the respondent felt obliged to admit that the statute in question was passed solely for the purpose of extending the term of office. Such a statute is void. State ex rel. Hamilton v. Krez, 88 Wis. 135; but see Christy v. Board of Supervisors, 39 Cal. 3.

RIGHT TO SUPPORT -- REMOVAL OF SUPPORT-RIGHt of Upper OWNER AGAINST LOWER OWNER IN BUILDING. The plaintiff and the defendant executed an agreement under which the plaintiff erected a second story over the defendant's one-story building. The walls of the defendant's tenement, the lower story, having fallen into decay, the plaintiff, as owner of the upper story, brought this bill to compel the defendant to repair the walls of his tenement so as to afford the plaintiff's structure sufficient support. Held, that the defendant is under no obligation to repair the walls. Jackson v. Bruns, 106 N. W. Rep. 1 (Ia.).

The exact nature of the agreement does not appear, but it may be assumed that it took the form of a grant. This would give the plaintiff an estate; and there would be, if not an express, an implied grant of an easement of support. Cf. Rhodes, Pegram & Co. v. McCormick, 4 la. 368; McConnel v. Kibbe, 33 Ill. 175. The question whether this easement imposes on the lower owner any duty beyond the passive duty of non-interference with the walls arises here for practically the first time. Apparently the only decision on the point is a very old case holding the lower owner to the active duty of repair, a case that was considered doubtful at the time, and was later expressly disapproved of. Keilw. 98 b. pl. 4; Tenant v. Goldwin, 2 Ld. Raym. 1089, 1093. Moreover, in the analogous case of easements of lateral support it seems clear that there is no active duty to repair. Pierce v. Dyer, 109 Mass. 374. It is the general rule that there is no active duty upon the servient owner. Cf. Pomfret v. Ricroft, Saund. 321. But the plaintiff would probably be given the right to enter upon the lower tenement and make repairs himself, as a right necessary to the enjoy ment of his easement of support. Cf. GALE, EASEMENTS, 7th ed., 461.

RIGHT OF SUPPORT -REMOVAL OF SUPPORT- -WAIVER OF RIGHT TO SUPPORT FROM SUBJACENT ESTATE. The plaintiff conveyed the coal under part of his farm to the defendant's predecessor in title, "together with the right to enter upon and under said land, and to mine, excavate, and remove all of said coal." The defendant removed literally all the coal, thereby causing the plaintiff's land to subside. Held, that the defendant is not bound to furnish support for the plaintiff's land. Griffin v. Fairmont Coal Co., 53 S. E. Rep. 24 (W. Va.).