57 Fed. 368; see Brownlie v. Campbell, 5 A. C. 925, 950. See SALMOND, TORTS, 3 ed., p. 448. In the principal case a corresponding duty to speak seems to arise by reason of the relation between the parties and the complete dependence of the contractor upon the representations of the union. It follows that the union's statement constituted a continuing representation which upon the lowering of the wage scale without notice to the plaintiff became a positive misrepresentation.

DEEDS CONSTRUCTION AND OPERATION IN GENERAL CONVEYANCE BY GRANTOR TO HIMSELF AND WIFE. · The grantor conveyed land to himself and wife "jointly, the survivor to have full ownership." The grantor died, and after the death of the wife, his heirs claim the land. Held, that they are entitled to one-half. Wright v. Knapp, 150 N. W. 315 (Mich.).

The decision takes the ground that the conveyance created a tenancy in common. According to very old authority a deed made to one incapable of taking and to others that are capable, inures only to the benefit of those capable. SHEP. TOUCH. 82; Humphrey v. Tayleur, 1 Amb. 136. To the same effect are Ball v. Deas, 2 Strob. Eq. (S. C.) 24; McCord v. Bright, 44 Ind. App. 275, 87 N.E. 654. Therefore, if a man, intending to create a joint tenancy, conveys land to himself and others, a joint estate in the whole is created in the others, since he cannot convey to himself. Cameron v. Steves, 4 Allen (New Bruns.) 141. See 21 HARV. L. REV. 57. But see Colson v. Baker, 42 N. Y. Misc. 407, 87 N. Y. Supp. 238; Saxon v. Saxon, 46 N. Y. Misc. 202, 93 N. Y. Supp. 191. If the intention was to create a tenancy in common, however, the other grantees would get the property subject to the grantor's intended share, which would remain in him. Green v. Cannady, 77 S. C. 193, 57 S. E. 832. But there seems to be no basis for reaching such a result in the principal case. It is true that in spite of the common law's original bias in favor of joint tenancies, the courts from comparatively early times exercised every ingenuity to construe deeds as creating estates in common whenever possible. Galbraith v. Galbraith, 3 S. & R. (Pa.) 392. Cf. Seitz v. Seitz, 11 App. D. C. 358, 370. This tendency, moreover, has been embodied in statutes in many jurisdictions. See N. Y. CONSOL. LAWS, REAL PROPERTY LAW, § 66; How. MICH. STAT., § 10666. But the courts refuse to violate the express intention of the parties to the contrary. Cover v. James, 217 Ill. 309, 75 N. E. 490. And in Michigan the statutory provision for construction as a tenancy in common does not apply to a grant to husband and wife. How. MICH. STAT., § 10667. It appears to be equally impossible to support the case on a mere conjecture that the construction approximates more nearly to the grantor's intent since it was impossible for a tenancy by the entireties to be created, and the grantor did not intend to divest himself of all the property.

DOWER - INJUNCTION AGAINST WASTE TO PROTECT INCHOATE RIGHT OF DOWER. A deserted wife brought a bill in equity to enjoin the opening and operating of oil wells by the defendant on land which he had obtained from her husband by a deed in which she did not join. Held, that the relief will not be given. Rumsey v. Sullivan, 150 N. Y. Supp. 287 (App. Div.).

For a discussion of the principles involved in the decision, see NOTES, p. 615.

EMINENT DOMAIN COMPENSATION-TAKING OF PRIVATE WAY FOR PUBLIC STREET. The owner of a tract of land sold all the lots, with private easements in plotted streets, but retained the fee in the streets himself. The city later condemned the fee in the streets and awarded compensation, which the abutters now claim to share on account of their private easements. Held, that they are not entitled to the award. In re Hamburger, 150 N. Y. Supp. 771 (App. Div.).

Where the abutting owners own the fee, they are entitled to substantial damages for its taking for street purposes, even though private easements already exist in favor of others. City of Buffalo v. Pratt, 131 N. Y. 293, 30 N. E. 233; In re Ninety-Fourth Street, 22 N. Y. Misc. 32, 49 N. Y. Supp. 600. But it is generally held that a grantor who has retained the bare fee in the plotted streets can get only nominal damages when it is taken. Matter of the City of New York, 196 N. Y. 286, 89 N. E. 829; see Gamble v. Philadelphia, 162 Pa. St. 413, 29 Atl. 739. Abutting owners with nothing but private easements, as in the principal case, are also unable to recover substantial compensation in the ordinary case where a public highway is substituted for the plotted streets. Clayton v. Gilmer County Court, 58 W. Va. 253, 52 S. E. 103. Matter of the City of New York, supra. Usually, the private easement is not even destroyed, but continues to exist independently of the public right and will revive on the abandonment of the highway. See Ross v. Thompson, 78 Ind. 90, 93. Cf. Holloway v. Southmayd, 139 N. Y. 390, 34 N. E. 1047. And in any event, it is difficult to prove damage, for the abutter receives the distinct advantage of a public street, whose maintenance devolves upon the city. It is conceivable, however, that the private enjoyment may be such that it will be impaired by the enlarged public user, and in such cases, the damages in fact sustained should be recoverable. See Lowery v. City of Pekin, 186 Ill. 387, 57 N. E. 1062.

EVIDENCE CONFESSIONS INVOLUNTARY CONFESSION OF ONE CRIME INADMISSIBLE AT TRIAL FOR ANOTHER-RES JUDICATA. -The defendant was on trial for perjury alleged to have been committed by him in denying the criminal act at a former trial for rape. The state offered in evidence a confession made when under arrest for rape, which was not in writing, or preceded by warning, and so failed to comply with the requirements of the statute. TEX. CODE CRIM. PROC., § 790. The defendant objected, and also set up his acquittal at the former trial. Held, that the confession is inadmissible. Semble, that the acquittal was no bar to the prosecution for perjury. Murff v. State, 172 S. W. 238 (Tex. Cr. App.).

According to the court's interpretation of the statute, an involuntary confession is made inadmissible for all purposes. This conclusion is in harmony with the reason of the confession rule and the authorities indicate that the same result would be reached even at common law. Thus an involuntary confession by the defendant has been held inadmissible to impeach him as a witness at his trial for the very crime. Jones v. State, 149 N. W. 327 (Neb.). See 28 HARV. L. REV. 428. At the trial of another person for the same crime, it is true, a prior involuntary confession by a witness has been considered competent to impeach him. See State v. Mills, 91 N. C. 581. But a confession by the defendant himself of a crime other than that for which he is on trial has been held admissible to prove his guilt only on proof that it was voluntary. State v. McDaniel, 39 Ore. 161, 65 Pac. 520; cf. State v. Jones, 171 Mo. 401, 71 S. W. 680. It would seem that the confession in the principal case would likewise be inadmissible, although it could not be condemned directly as an involuntary confession of the perjury later committed. Whether or not the prior acquittal of the substantive crime would conclude the question of perjury, would depend on the precise issue at the other trial. In substance, the rules with respect to res judicata are the same in criminal as in civil causes. See Coffey v. United States, 116 U. S. 436. VAN FLEET, FORMER ADJUDICATION, § 594. Thus an acquittal of another crime has been held to bar a subsequent prosecution for perjury where the court found that the parties, the point in issue, and the quantum of proof required were the same. United States v. Butler, 38 Fed. 498; Cooper v. Commonwealth, 106 Ky. 909, 51 S. W. 789. In the principal case, therefore, it seems that the defendant should be able to stand upon the other acquittal only if the perjury

charged was the denial of the criminal act, and collateral questions, such as the victim's age, had not been in issue. To bar the later prosecution for perjury involves the danger that an acquittal obtained by perjured denials will absolve the defendant from the perjury as well, and this possibility demands a strict administration of the rule.

EVIDENCE - GENERAL PRINCIPLES AND RULES OF EXCLUSION - MATTERS LIKELY TO MISLEAD JURY: PRIVATE RULES TO SHOW STANDARD OF CARE. In an action for negligent injury by a street car the plaintiff offered the private rules set by the company for its employees as evidence of the proper standard of care. Held, that such rules are inadmissible. Virginia Railway & Power Co. v. Godsey, 83 S. E. 1072 (Va.).

The private rules of a company are not admissible, unless possibly in connection with similar rules of other companies to show a general practice, except as admissions that conduct in violation of such rules is negligent. As admissions, however, they have but slight force, for ordinarily the rules impose on the employees a standard of care higher than that required by law, since the company is desirous of avoiding not simply liability but also accidents from the negligence of others. Furthermore, the policy against such evidence is strong, for the law should encourage the employer to set a high standard. To allow the rules to be introduced as admissions of the legal standard of care would induce carelessness and would penalize the cautious employer. The evidence of subsequent repairs to prove a previous negligent condition presents a close analogy. Such evidence is now always excluded. Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 465, 16 N. W. 358; Columbia & Puget Sound R. Co. v. Hawthorne, 144 U. S. 202; Hart v. Lancashire & Yorkshire Ry. Co., 21 L. T. N. S. 261. A few courts, however, have allowed the admission of private rules. Lake Shore & M. S. Ry. Co. v. Ward, 135 Ill. 511, 26 N. E. 520; Stevens v. Boston Elevated Ry. Co., 184 Mass. 476, 69 N. E. 338; Cincinnati Street Ry. Co. v. Altemeier, 60 Oh. St. 10, 53 N. E. 300; Delaware, L. & W. R. Co. v. Ashley, 67 Fed. 209. The authority of some of these cases is weakened by the unsound reasoning upon which they rest. The Massachusetts court, for example, confuses private rules and municipal ordinances. See 27 HARV. L. REV. 317. And the Ohio court admits the evidence on the illogical ground that the rules are part of the res gesta. The better authorities support the view taken in the principal case, which seems much to be preferred. Alabama Great Southern R. Co. v. Clark, 136 Ala. 450, 34 So. 917; Hoffman v. Cedar Rapids & M. C. Ry. Co., 157 Ia. 655, 139 N. W. 165; Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 74 N. W. 166.

FEDERAL COURTS-JURISDICTION AND POWERS IN GENERAL-AD DAMNUM REDUCED TO PREVENT REMOVAL FROM STATE TO FEDERAL COURT. — The plaintiff was suing in a state court for five thousand dollars, but received notice that the defendant was about to file a petition for removal to the federal court, and reduced his ad damnum by amendment to three thousand dollars to prevent the federal court from getting jurisdiction. Held, that the federal court has no jurisdiction. Anderson v. Western Union Tel. Co., 218 Fed. 78 (D. C., E. D., Ark.).

A situation somewhat analogous to the principal case arises when a party changes his domicile for the purpose of getting his case into the, federal courts. If a new domicile is actually acquired, the motive for the change is immaterial. Williamson v. Osenton, 232 U. S. 619. A real transfer of the property in dispute to a citizen of another state will likewise give the diversity of citizenship necessary to federal jurisdiction, whatever be the motive. Briggs v. French, 2 Sumner (U. S.) 251. But see FEDERAL JUDICIAL CODE, § 24. Similarly the decisions were unanimous to the effect that a remittitur even

after judgment would prevent an appeal from a Circuit to the Supreme Court. Alabama Gold Life Ins. Co. v. Nichols, 109 U. S. 232; Pacific Postal Tel. Cable Co. v. O'Connor, 128 U. S. 394. When, as in the principal case, there is a reduction of the ad damnum clause to prevent removal to the federal court, the same underlying principle governs. The reduction, if it takes place after removal, will, of course, be ineffectual to deprive the federal court of jurisdiction already acquired. Johnson v. Computing Scale Co., 139 Fed. 339. The same is true if the petition and bond for removal have already been filed. Chicago, R. I. & P. R. Co. v. Stone, 70 Kan. 708, 79 Pac. 655. But a reduction made prior to the filing of the petition for removal is effective to prevent the federal court from getting jurisdiction. Western Union Tel. Co. v. Campbell, 41 Tex. Civ. App. 204, 91 S. W. 3

FOREIGN CORPORATIONS

TION.

312.

DOMESTIC JURISDICTION JURISDICTION OF EQUITY TO INTERFERE WITH INTERNAL MANAGEMENT OF FOREIGN CORPORAA foreign mutual beneficiary society threatened to cancel the plaintiff's certificate entitling him to membership and insurance. Having served process on the local agent, the plaintiff asks an injunction to prevent this action by the corporation. Held, that the relief cannot be granted. Tolbert v. Modern Woodmen of America, 145 Pac. 183 (Wash.).

For a discussion of the jurisdiction of equity over the internal management of foreign corporations, see p. 611 of this issue of the REVIEW.

INJUNCTIONS ACTS RESTRAINED - PAYMENT OF SALARIES ALLEGED NOT TO BE CONSTITUTIONALLY AUTHORIZED. - A state legislature created an investigating commission and provided for the payment of the salaries and expenses of its members. The plaintiff, a taxpayer, alleging that this legislative action was unconstitutional, brings suit to enjoin the state auditor and treasurer from making the authorized payments. Held, that he cannot maintain the suit. Sutton v. Buie, 66 So. 956 (La.).

The court, while admitting that these taxpayer's actions are maintainable against municipal officers, properly distinguishes attempts to enjoin state officials by reason of the practical inconvenience involved, and avoids the common error of denying relief upon jurisdictional grounds, or upon the theory that the suit is really brought against the state itself, For a discussion of the principles involved, see 28 HARV. L. REV. 309.

INTERSTATE AND FOREIGN COMMERCE · WHAT CONSTITUTES FOREIGN COMMERCE ROUTE OVER HIGH SEAS WITH TERMINI WITHIN ONE STATE. A California corporation operated a line of steamships running from one port in California to another port in the same state, part of the voyage being on the high seas. The state Railroad Commission undertook to regulate the rates charged. Held, that the state commission has this power. Wilmington Transportation Co. v. Railroad Commission of California, 236 U. S. 151.

This case, one of first impression in the United States Supreme Court, affirms the decision of the state supreme court discussed in 27 HARV. L. Rev. 686. See Wilmington Transportation Co. v. Railroad Commission of California, 166 Cal. 741, 137 Pac. 1153. The only other adjudication is now overruled. Pacific Coast S. S. Co. v. Board of R. Commissioners, 18 Fed. 10. The case does not, however, involve a decision that rates for such commerce are exclusively within the control of the states. The court reaches its result on the narrower ground that the matter is one of purely local concern, and therefore within the control of the states, at least until Congress has acted. See Port Richmond, etc. Co. v. Board of Chosen Freeholders, 234 U. S. 317. Whether or not such commerce may be brought within federal jurisdiction under the commerce clause remains as yet undecided. The carriage of goods from a point on the high seas without the United States to a point within, although not strictly com

merce with any foreign nation, has been held within the regulative power of Congress. The Abby Dodge, 223 U. S. 166. The same is true of the carriage of goods between two points in the same state over a route passing through another state. Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617. These cases seem to afford strong argument from authority for recognizing a dormant federal power in a situation like the one here disclosed.

INTERSTATE COMMERCE ·CONTROL BY CONGRESS - ACT TO REGULATE COMMERCE ISSUANCE OF PASSES TO EMPLOYEES OF COMMON CARRIERS NOT SUBJECT TO THE ACT. Section 1 of the Act to Regulate Commerce, as amended June 29, 1906, prohibits the issuance of passes by common carriers subject to the Act, but expressly permits "the interchange of passes for the officers, agents and employees of common carriers and their families." This section was reenacted in 1910, with an amendment providing that the section should not prohibit "the privilege of passes . . . for . . . employees. of such telegraph, telephone, and cable lines, and the .. employees. other common carriers subject to the provisions of this act." The United States seeks to enjoin the issuance of passes by the defendant to employees of common carriers not subject to the Act. Held, that the relief be denied. United States v. Erie R. Co., Sup. Ct. Off., No. 493 (Feb. 23, 1915).

of

The section in question had been previously interpreted by the Interstate Commerce Commission to mean that the interchange of passes was not permissible except with carriers subject to the Act. Petition of the Frank Parmelee Co., 12 I. C. C. 39. And this interpretation had been embodied in the Conference Rulings. I. C. C. Conference Rulings, 95 g. In 1910 the section was reenacted without change, except for the addition of the second proviso above quoted. 36 U. S. STAT. AT LARGE, 546. Such a reenactment indicates a certain tacit approval of the Commission's interpretation and might have been expected to influence the Supreme Court to adopt the existing construction. See New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 401. But the actual, and unopposed, practice of the carriers was to the contrary, and accordingly the court was persuaded to adopt a construction opposed to the Commission's ruling. The amendment of 1910 was taken to sustain the view of the court, in that it limited the interchange merely of telegraph and telephone franks to carriers subject to the Act. Furthermore, the only possible justification for the interchange of passes even with employees of carriers subject to the Act arises from the financial value of harmonious relations with possible feeders, and applies with equal cogency in the case of carriers not subject to the Act. The Supreme Court's construction, therefore, leaving aside any question of the possible abuse of such a pass system, seems to be completely in harmony with the logic of the exemption.

INTERSTATE COMMERCE - CONTROL BY CONGRESS APPLICATION OF CARMACK AMENDMENT TO SHIPMENTS BETWEEN TWO TERMINI IN SAME STATE WHICH PASS THROUGH ANOTHER STATE. A shipment of goods from one point to another in the same state passed en route through another state. The shipper now seeks to hold the initial carrier for damages without showing a contract for through carriage. The Carmack Amendment provides for the liability of the initial carrier in shipments "from a point in one state to a point in another state." Held, that the plaintiff cannot recover. Wichita Falls & W. Ry. Co. of Texas v. Asher, 171 S. W. 1114 (Tex. Civ. App.).

The court takes the position that the Carmack Amendment does not apply to a shipment of this nature. Such a shipment is undoubtedly interstate, and therefore subject to regulation by Congress. Hanley v. Kansas City Southern R. Co., 187 U. S. 617. The inquiry then is merely whether Congress has in