street was carried over the tracks of the New York, New Haven & Hartford Railroad by a steel bridge. From the top of the bridge at one end rose two upright lattice posts which supported live electric wires. Boys often climbed to the highest parts of the bridge, and were frequently chased away by policemen and the railroad guard and they seem generally to have understood that they were forbidden to play there.

The case recalls the hardly less recent one in Illinois (Stedwell v. City of Chicago, 297 Ill. 486), where a street passes under the elevated structure of the South Side Elevated Railroad Company, and a wire was strung that passed under this elevated structure in such way that it could be reached by climbing iron posts supporting the elevated structure, that had cross pieces like lattice work, and the court held it was a question of fact for the jury to say if this was an attractive nuisance or not. Both cases present the feature that children in fact found the structures alluring, and the only difference in substance between the two cases lies in the circumstance that in the federal case the children were given to understand (so far, at least, as the vigilance of policemen and posting of signs made that possible) that they should not play there.

Possibly the contrariety in decision presented by the two cases is to be accounted for in that under the federal practice the court is not bound to submit an issue to the jury merely because the plaintiff has a scintilla of evidence in his favor.

E. M. L.

INSURANCE LAW-BENEFIT INSURANCE GUARANTEE FUND CANNOT BE APPLIED TO THE PAYMENT OF AN OVERDUE ASSESSMENT. In the case of Stringham v. Bankers Life Association 309 Ill. 181, 140 N. E. 860, the administratrix of the deceased sued an assessment insurance company on a certificate of insurance issued in September, 1908, by the insurance company to M, deceased. The certificate provided for the payment to M's beneficiary of $2,000, with the guaranty fund of $39 paid by M to the insurance company, if he died during membership. The certificate further provided that if M failed to make any payment when due from him, the guaranty deposit and all other payments made by him would be forfeited and his membership would thereupon cease. The insurance company made an assessment of $5.46, which was payable October 1, 1917, but under its by-laws M had the entire month in which to pay

it.

On the last day of October he was stricken with cerebral hemorrhage, became unconscious and remained so until his death, November 7, 1917. The assessment was not paid, but all former assessments had been paid. The benefit certificate made the articles of incorporation and by-laws of the insurance company a part of the contract. The charter referred to the guaranty fund as security for the payment of assessments, but both the charter and the by-laws provided that the guaranty fund and the insurance should both be forfeited for failure to pay an assessment within the time prescribed.

The question to be decided was whether the guaranty fund or deposit of $39 paid by M, the insured, was a pledge in the nature of a collateral to secure the payment of assessments and whether it should have been applied to the payment of an overdue assessment. In substance the Supreme Court held:

That, although the charter of an insurance company requires the payment of a certain sum of money into a fund called the guaranty fund and refers to this fund as security for the payment of assessments, still such a fund is not a pledge to secure the payment of assessments and cannot be applied to the payment of an overdue assessment, where both the charter and the by-laws of the insurance company provide that the guaranty fund, all other payments made by the insured, and the insurance shall be forfeited for non-payment of assessments within the time prescribed.

That a contract of insurance which provides for forfeiture upon a member's failing to pay an assessment is self-executing, and upon default in payment the insured ceases to be a member, and all his rights or those of his beneficiary become forfeited.

The court very properly indicates that the failure to pay an assessment of $5.46 is a small matter for which to forfeit a valuable contract of insurance, and that if there were any reasonable theory upon which it could be avoided, the forfeiture would not be enforced.

The question involved in this case had not heretofore been decided by the Supreme Court of Illinois. The decision is clearly right, and it is in accordance with the principles of the decisions in several other states where the same question was involved, as shown by the adjudicated cases of Missouri, Kansas, Iowa, and Indiana. cited by the court.

C. MARTIN ALSAGER.

LATERAL SUPPORT.-In Malina v. Oplatka 304 Ill. 381, 136 N. E. 666, the plaintiff brought suit for damages for loss of support of his wall, a party wall. Suit was brought in the Municipal Court, and, so it was held, his action sounded in tort as the præcipe called for a plea of trespass on the case. The demand was for more than $1,000, and therefore the Supreme Court held the Municipal Court had no jurisdiction, and the matter was thus disposed of so far as this opinion was concerned. The opinion says, however, "Counsel for defendant in error contends, and cites numerous authorities in support of the argument, that the particular injuries in this case. are such as might be sued for either in contract or tort."

A reference to the article in ILL. L. REV. XVI 108, 117, will indicate that the obligation to furnish lateral support is a natural real property obligation that does not extend to the support of buildings unless expressly or by implication so extended, in which event it becomes a right in the nature of an easement. There is, also, a right of action for negligence in carelessly excavating so close to the line as to cause the neighbor's building to sink. (Ib. Article.) The right to the easement of lateral support arises from the contract

by which the easement is created, and doubtless an action for damages to such easement might be based upon the contract, though more logically it would seem to be an invasion of the property right obtained by the contract, and, therefore, a trespass. The right, as far as it may be based upon negligence, is, of course, available by an action in trespass on the case.

It is to be regretted that the pleadings in the principal case were not in shape to call for a decision upon the merits.

E. M. L.

PARENT AND CHILD-OBLIGATION OF PARENT TO SUPPORT CHILD, WHETHER LEGAL OR MORAL.-The language in the case of Superior Coal Co. v. Indust. Com. 304 Ill. 322, 136 N. E. 782, as follows: "Thompson [the father] was under the legal obligation to support his minor child," is but a repetition of similar language appearing in an earlier case (Panther Creeks Coal Co. v. Indust. Com. 296 Ill. 566), and if such language is repeated often enough, very likely the law that the obligation of a parent toward his child is a moral one and not a legal one will be entirely lost sight of (ILL. L. REV. XIV 645). Indeed, in the Superior Coal Co. case above referred to, having announced the rule as one of legal liability so far as the father is concerned, the court goes on to draw a distinction between the parent's liability as compared to the liability of a grandparent who is in loco parentis, as that of a legal liability on the part of the parent and a moral liability on the part of the grandparent.

Is Illinois drifting to the attitude of the dissenting opinion in the case of Rawlings v. Rawlings 83 Sou. Rep. 146 (a case commented upon pro and con at the time in this REVIEW XVI 645)? For if it be a legal liability, then the child ought to be able to sue the parent for support himself. That there is powerful argument in support of such right is apparent from the comment of Dean Wigmore in the LAW REVIEW citation above.

E. M. L.

WORKMEN'S COMPENSATION-DEATH OF BENEFICIARY OF AWARD DIVERSION OF AWARD TO ANOTHER BENEFICIARY.-In Swift & Co. v. Industrial Commission 309 Ill. 11, 140 N. E. 17, an award was made payable to a widow and minor child at the rate of $10 per week for three hundred and fifty weeks, all of said compensation to be paid to the widow for the support of herself and child. Thereafter the widow died and the commission entered an order modifying the award and directed the entire compensation remaining unpaid to be paid to the child during the remainder of the three hundred and fifty weeks. The sole question passed upon by the court was, Did the award payable to the widow abate as to her share at her death, or is her share to be paid to the surviving beneficiary?

In arriving at the conclusion that the award did not abate as to her share at the death of the widow and that the commission had jurisdiction to modify the order and direct the remainder of the

balance to be paid to the surviving beneficiary, the court had occasion to construe paragraph (g) of Section 7 and the latter part of Section 21 of the Workmen's Compensation Act of 1919. The latter part of Section 21, with the exception of a proviso which had no application to the facts of the present case, provides that

"Any right to receive compensation hereunder shall be extinguished by the death of the person or persons entitled thereto, subject to the provisions of this Act relative to compensation for death received in the course of employment."

Paragraph (g) of Section 7 provides:

"The compensation to be paid for injury which results in death, as provided in this section, shall be paid to the persons who form the basis for determining the amount of compensation to be paid by the employer, the respective shares to be in the proportion of their respective dependency at the time of the injury on the earnings of the deceased: Provided, that the Industrial Commission or an arbitrator thereof may, in its or his discretion, order or award the payment to the parent or grandparent of a child for the latter's support the amount of compensation which but for such order or award would have been paid to such child as its share of the compensation payable, which order or award may be modified from time to time by the commission in its discretion with respect to the persons to whom shall be paid the amount of said order or award remaining unpaid at the time of said modification."

The court concludes that the words, "subject to the provisions of this Act relative to compensation for death received in the course of employment," indicate an intention that the provisions of the Act relative to compensation for death received in the course of employment are to remain in full force and effect wherever the provisions of Section 7 contemplate transferring of the right of a beneficiary to receive compensation after his death to another person or beneficiary and that the provisions relating to extinguishment have application only when the persons entitled to compensation under Section 7 have all become deceased.

The decision of the court not only clarifies the provision about which there appears to have been some doubt, but the result at which the court arrives is fair and equitable and in accordance with the spirit of the Act. P. E. PRICE.

Deeds Delivery-Escrow.-In an article by Albert S. Long, Esq. (ILL. L. REV. XIII 159 on page 168) the author points out a distinction between (a) deeds delivered to take effect after a lapse of time or upon the happening of an event that was bound to happen and (b) deeds delivered to a third person to be by him delivered to the grantee upon performance of a certain act by the grantee. The author points out that the latter class of cases, only, are properly denominated cases of delivery in escrow, but says that the Illinois court often overlooks this distinction in terminology. It is interesting to recognize in the recent case of People v. Shults 305 Ill. 539, 137 N. E. 418, another example where the Supreme Court disregards this distinction. E. M. L.

CORRESPONDENCE

To the Editors of ILLINOIS LAW REVIEW:

Until a few years ago, much confusion existed in the decisions relative to search and seizure, due to a failure to distinguish clearly between Amendments IV and V of the federal Constitution, and this confusion is best illustrated by Boyd v. United States,1 which was a proceeding instituted for the purpose of having certain goods forfeited for violation of a customs law.

The statute in that case provided, in effect, that the government attorney could, in proceedings other than criminal, state the contents of any book or document under the defendant's control and that this statement should be taken to be true unless the defendant produced the book or document. The statute was held to be unconstitutional, this being a quasi criminal case, and the court said:

"We have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms."

The criticism of this case by Professor Wigmore, however, bore fruit and the distinctions and differences between the two amendments have since been clearly stated by Judge Baker, speaking for the court, in Haywood v. United States, where it was said, of Amendment V:

"'Witness' is the key word. But unless the origin and purpose of the command be disregarded and the key word be turned into an unintended, if not impossible, meaning, no compulsion is forbidden by the Fifth Amendment except testimonial compulsion."

The law may, then, be summarized as follows: The government is prevented, by Amendment V, in a criminal or quasi criminal case, from employing against the defendant any form of "testimonial compulsion," from directly compelling the defendant himself to produce evidence as a witness, but the government is not forbidden to obtain the same evidence indirectly, as by force or guile, unless the procedure followed violates Amendment IV.

Suppose, however, and this is the point of this communication, the government has ignored Amendment IV, has unlawfully seized and carried off a certain thing. What is to be done when, during the trial, the government offers the thing seized in evidence against the defendant? There being no dispute about the facts, the objection of the defendant would be sustained and the evidence rejected, 1. 116 U. S. 616, 29 L. ed. 746.

2. See Wigmore "Evidence" (2nd ed.) §§ 2184, 2263, 2264.

3. 268 Fed. 795 (7 C. C. A.).

4. Boyd v. U. S. 116 U. S. 616, 29 L. ed 746.

5. U. S. v. Maresca 266 Fed. 713.

6. Amos v. U. S. 255 U. S. 313, 65 L. ed. 654; Salata v. U. S. 286 Fed. 125 (6 C. C. A.).