jurisdiction of all but twenty-one classes of cases, including all actions for money damages. When two of the judges of that court considered erroneous a ruling precedent of the Supreme Court, the case was to be transferred to the latter. Held, that the statute is unconstitutional. Ex parte France, 95 N. E. 515 (Ind.).

It is well settled that only express provisions give to litigants a constitutional right to appeal. People v. Richmond, 16 Colo. 274, 26 Pac. 929; Saylor v. Duel, 236 Ill. 429, 86 N. E. 119. The legislature may usually vary, within wide limits, the jurisdiction even of constitutional courts. Lake Erie & Western Ry. Co. v. Watkins, 157 Ind. 600, 62 N. E. 443. The decision in the principal case must rest on the ground that the new powers of the Appellate Court deprive the Supreme Court of its supremacy. Cf. Hildreth v. McIntire, 1 J. J. Marsh. (Ky.) 206; Court of Appeals, 9 Colo. 623, 21 Pac. 471. It is not necessary to accept the argument of the Virginia court, that supremacy is entirely independent of jurisdiction. See Sharpe v. Robertson, 5 Grat. (Va.) 518, 604-608, 624-630. Lack of jurisdiction may make the authority of the court's opinions, its indestructibility and freedom from review, mere empty forms. Yet a constitutional court's greater authority, expressly recognized by the legislature as in this act, has more than a nominal value. The matter of jurisdiction is one of degree, but here, also, the field conferred upon the Appellate Court was apparently not as important as that of the older tribunal. It may fairly be said that the Supreme Court was still supreme, its jurisdiction legitimately limited in the interest of effective justice.

CONSTITUTIONAL LAW-DUE PROCESS OF LAW-STATUTE AUTHORIZING SUBPOENA TO COMPEL PERSON IN ONE STATE TO TESTIFY IN ANOTHER. — A state statute authorized the granting of a subpæna to compel a person residing or being in the state to appear as witness in a prosecution for felony pending in any border state which had a similar statute, upon presentation to the judge issuing the subpæna of proof of the necessity of such witness, opportunity being given to the witness to appear before the judge to be heard in opposition thereto, and suitable provision being made for his expenses. Held, that the statute is constitutional. Commonwealth of Massachusetts v. Klaus, 130 N. Y. Supp. 713 (App. Div.).

The court overrules a former decision in the Supreme Court, Special Term, which declared this statute unconstitutional as depriving a person of liberty without due process of law. Matter of Commonwealth of Pennsylvania, 45 N. Y. Misc. 46, 90 N. Y. Supp. 808. See 18 HARV. L. REV. 466. There would seem to be ample provision for due process of law. The witness is allowed to be heard before the judge issuing the subpæna and ample indemnity is provided. The duty of a citizen to appear as a witness in judicial proceedings and the correlative right to compel him to appear have always been recognized. In re Application of Clark, 65 Conn. 17, 31 Atl. 522. The constitutionality of statutes recognizing the duty of a citizen to give testimony for use in other states and enforcing it to the extent of compelling him to make a deposition for the purpose is unquestioned. In the Matter of United States Pipe Line Co., 16 N. Y. App. Div. 188, 44 N. Y. Supp. 713. The statute in the principal case is but an extension of the recognition of this duty, and whether enacted primarily to facilitate indirectly the administration of justice in the state itself, or for the facilitation of the administration of justice in general, as it does not violate any express constitutional provision, it must be held valid.

CONSTITUTIONAL LAW - PERSONAL RIGHTS: CIVIL, POLITICAL AND RELIGIOUS ELECTIONS: DISCRIMINATION IN FORM OF BALLOT. Chapter 649 of the New York Laws of 1911 provided that "if any person shall have been nominated by more than one political party . . . for the same office, his name

shall be printed but once upon the ballot'

and in the party column where his name is not printed shall be printed see column"; and to vote a "straight ticket" on such a party column, a mark shall be placed not only at the head of the column, but also opposite the place where such candidate's name is actually printed. Held, that the law is unconstitutional. In the Matter of Hopper, 46 N. Y. L. J. 221 (N. Y. Ct. App., Oct., 1911). See NOTES, p. 176.

CORPORATIONS DISSOLUTION - DEVOLUTION OF REAL PROPERTY. - A social corporation not organized for profit purchased land and occupied it for seven years, when its activity ceased. The surviving trustee occupied it until the expiration of the corporation's charter. Then the heirs of the grantor, having acquired the rights of the other trustees in addition to their own, entered. The surviving trustee brought suit for partition. The members of the corporation at the time of its dissolution and their heirs intervened. Held, that the land should go to the members and heirs of members of the corporation at the time of its dissolution. McAlhany v. Murray, 71 S. E. 1025 (S. C.).

The rule set forth in Coke on Littleton, 13 b, that upon the dissolution of a corporation its realty reverts to the grantor is inapplicable to business or municipal corporations, or to social corporations in which the members have a pecuniary interest. Bacon v. Robertson, 18 How. (U. S.) 480; Brookline Park Commissioners v. Armstrong, 45 N. Y. 234; Wilson v. Leary, 120 N. C. 90, 26 S. E. 630. But innumerable dicta assert that it applies to charitable corporations. See St. Philip's Church v. Zion Presbyterian Church, 23 S. C. 297; Mormon Church v. United States, 136 U. S. 1, 47. Many text writers take Coke's view. See I BL. COMM. 484; 2 KENT COMM. 282, 307. And one decision sustains it. Mott v. Danville Seminary, 129 Ill. 403; 136 id. 289. But on the other hand, in the authorities which Coke cites as supporting his rule, only one dictum is to be found which warrants his general statement. See GRAY, RULE AGAINST PERPETUITIES, §§ 44-51 a. And the only English decision holds, that the land escheats. Johnson v. Norway, Winch 37. This theory avoids the presentation to the grantor's heirs of undeserved wealth. It avoids also the objection under the statute of Quia Emptores to determinable fees. In South Carolina tenure exists, and the statute of Quia Emptores is not in force. See GRAY, RULE AGAINST PERPETUITIES, §§ 23, 27. Nevertheless land escheats to the state. 5 STAT. OF S. C., 1839, no. 1381, § 2; City Council v. Lange, 1 Mill (S. C.) 454. Hence this theory could apply. Nor is the principal case inconsistent with it, as the state is not a party to the suit.

CORPORATIONS

STOCKHOLDERS: INDIVIDUAL LIABILITY TO CORPORATION AND CREDITORS — NATURE OF LIABILITY IMPOSED BY STATUTE. -A statute imposed a double liability on stockholders of business corporations. A holder of debenture bonds sued a stockholder under this statute sixteen years after the corporation became insolvent. Held, that the cause of action is based on an implied contract, and is barred by the Statute of Limitations. Little v. Kohn, 185 Fed. 295 (Circ. Ct., E. D. Pa.).

A debt created by statute is considered a specialty debt, and the Statute of Limitations in question applied only to contracts without specialty. 2 PURDON'S DIG. (Pa.), 13 ed., 2282. But the liability in the principal case may be regarded as contractual or statutory. By consenting to become a stockholder a promise to assume the statutory liability may be implied. The courts recognize the dual nature of the liability. The constitutional provision against impairing the obligation of contracts applies. Hawthorne v. Calef, 2 Wall. (U.S.) 10. But on the other hand, in a recent case a married woman without capacity to contract was held as on a statutory liability. Smathers v. Western Carolina Bank, 71 S. E. 345 (N. C.). These cases were rightly decided, but on

a given point the liability should be consistently regarded as either contractual or statutory. On the point involved in the present case the decisions of the United States Supreme Court are in some confusion. Carrol v. Green, 92 U. S. 509; Platt v. Wilmot, 193 U. S. 602, 24 Sup. Ct. 542. The courts in general are divided. Hancock National Bank v. Farnum, 20 R. I. 466; Cork & Bandon Ry. Co. v. Goode, 13 C. B. 826; Hawkins v. Furnace Co., 40 Oh. St. 507. The result reached in the principal case seems satisfactory and in accord with the principle that the extraordinary liability should not be imposed beyond the clear provisions of the statute. See Gray v. Coffin, 9 Cush. (Mass.) 192. It is supported by the weight of authority. It seems to be settled, however, that the double liability imposed by the National Banking Act is statutory. McClaine v. Rankin, 197 U. S. 154, 25 Sup. Ct. 410. See 18 HARV. L. REV. 620.

COVENANTS OF TITLE - COVENANT AGAINST ENCUMBRANCES AND COVENANT OF WARRANTY WHETHER BROKEN BY TRESPASS. — A. sold growing timber to B. He then sold the land, on which the timber was growing, to C., and gave a full warranty deed. C. recorded his deed and thus deprived B. of any right in the trees. Nevertheless B. entered and cut them. C. sued A. for breach of warranty. Held, that C. can recover. Thomas v. West, 116 Pac. 1074 (Wash.). The court placed its decision on the ground that the covenant against encumbrances was broken as soon as made, and that the covenant for quiet enjoyment was broken by a trespass, induced by the grantor. Clearly there is no merit in the first reason, for there was no encumbrance, i. e., no "charge upon the land which would compel the grantee to pay money to relieve it." See Redmon v. Phoenix Fire Ins. Co., 51 Wis. 292, 300, 8 N. W. 226, 229. Cf. Marple v. Scott, 41 Ill. 50, 61; Wilkins v. Irvine, 33 Oh. St. 138. The second point turns on the question whether the grantor can be said to have induced the first grantee to commit the trespass. For it is settled that a trespass by a third person is not a breach of the covenant for quiet enjoyment. Hayes v. Bickerstaff, Vaugh. 118. And, on the other hand, a trespass by the grantor or his agents is such a breach. Seaman & Browning's Case, 1 Leon. 157. Neither on principles of agency nor on the weight of authority should the grantor be held responsible for such acts of trespass as in the principal case. Lamb v. Willis, 125 N. Y. App. Div. 183, 109 Ñ. Y. Supp. 75. To hold otherwise is to confuse a causa sine qua non with a legal cause.

CRIMINAL LAW TRIAL

WAIVER OF USUAL PROCEDURE. After all the evidence was in, one of the jurors was changed, and all the jurors were then sworn. The only evidence presented to these jurors was the reading of the testimony which had been taken before the original jurors. The accused consented to these proceedings. Held, that the conviction is illegal. People v. Toledo, 72 N. Y. Misc. 635, 130 N. Y. Supp. 440. See NOTES, p. 179.

DECEIT GENERAL REQUISITES AND DEFENSES - Loss OF DISPUTED CLAIM AS Damage. The plaintiff was induced by the misrepresentations of the defendant's agent to compromise for a small sum her claim against the defendant. The charge of the trial court required the plaintiff to prove only facts sufficient to warrant a reasonable belief in herself and the defendant that the claim was just. Held, that the charge should have required the plaintiff to prove that her claim was valid. Urtz v. New York Central & H. R. R. Co., 95 N. E. 711 (N. Y.).

The damages in deceit should at least equal the loss incurred by the plaintiff. Krumm v. Beach, 96 N. Y. 398; Smith v. Bolles, 132 U. S. 125, 10 Sup. Ct. 39. The loss of a disputed claim has been recognized by the New York court as legal damage. Gould v. Cayuga County National Bank, 99 N. Y. 333, 2 N. E. 16. In estimating its value it would seem impracticable and contrary to

economic principle to take into account the actual outcome of the trial, of which all the parties were necessarily ignorant at the time of the representation. Thus in contracts the loss of an invalid claim has been held to be detriment. Callisher v. Bischoffsheim, L. R. 5 Q. B. 449. As there is, then, a certain loss, independent of the validity of the claim, the better rule today leaves to the jury the question as to its amount. Wakeman v. Wheeler, etc. Co., 101 N. Y. 205, 4 N. E. 264. The evidence required by the lower court would seem sufficient to make this problem an easy one. Furthermore, if the upper court's decision is accepted, such a misrepresentation as this could in no case involve loss to the guilty party, while it would gain for him at least a delay in the prosecution of the suit against him.

EASEMENTS - MODES OF ACQUISITION PAROL LICENSE ACTED ON. The defendant orally agreed that a way should be opened across his land to give access to the public highway, which the plaintiff should have the right to use in common with the defendant and others as long as the defendant should live or own the land, if the plaintiff would build and keep in repair a necessary bridge. This the plaintiff did, and with the defendant used the road until the latter obstructed it with a fence. Held, that the defendant should be enjoined from obstructing the way. Arbaugh v. Alexander, 132 N. W. 179 (Ia.).

Under a parol license from the owner, the plaintiff telephone company erected a pole and wires on property, which, after two years, was acquired by the defendant railway company for its right of way. The plaintiff sues for damages for the cost of removing the wires from the pole and conducting them underground across the right of way at the request of the defendant. Held, that, since the license executed by the expenditure of money and labor has become irrevocable and, as an easement, is a burden on the estate in the hands of the defendant, the plaintiff should recover. Indianapolis & C. Traction Co. v. Arlington Tel. Co., 95 N. E. 280 (Ind.).

These cases illustrate the confusion in the law over parol licenses and parol agreements to grant an easement. Mine La Motte, etc. Co. v. White, 106 Mo. App. 222, 80 S. W. 356. Considerable authority apparently holds that an executed parol license is irrevocable. Clark v. Glidden, 60 Vt. 702, 15 Atl. 358; Brantley v. Perry, 120 Ga. 760, 48 S. E. 332. But the weight of authority is believed to be contra. Hodgkins v. Farrington, 150 Mass. 19, 22 N. E. 73; Crosdale v. Lanigan, 129 N. Y. 604, 29 N. E. 824. Many of the cases might have been put on the ground of enforcement in equity of parol agreements within the statute of frauds. Pope v. Henry, 24 Vt. 560; Munsch v. Stelter, 109 Minn. 403, 124 N. W. 14. Thus numerous cases deny relief because the agreement was too indefinite or the part performance insufficient. Cronkhite v. Cronkhite, 94 N. Y. 323; Thoemke v. Fiedler, 91 Wis. 386. Under these tests the Iowa case is well supported. Flickinger v. Shaw, 87 Cal. 126, 25 Pac. 268; Van Horn v. Clark, 56 N. J. Eq. 476, 40 Atl. 203. The Indiana case is distinguishable by the absence of a contract. See 13 HARV. L. REV. 54. It has been declared in cases involving parol gifts of land that without any contract jurisdiction exists to restrain unconscionable revocation resulting in irreparable injury. Freeman v. Freeman, 43 N. Y. 34; Seavey v. Drake, 62 N. H. 393. The application of this to parol licenses is usually met by the difficulty of finding in a mere permission any assurance of permanent enjoyment. St. Louis National Stock Yards v. Wiggins Ferry Co., 112 Ill. 384; Minneapolis Mill Co. v. Minneapolis & St. L. Ry. Co., 51 Minn. 304, 53 N. W. 639. It has been said that it must be implied from the nature of any license which requires a large and inherently permanent expenditure for its enjoyment. Cook v. Pridgen, 45 Ga. 331; Decorah Woolen Mill Co. v. Greer, 49 Ia. 490. But the facts of the Indiana case do not bring it within this doctrine.

INJUNCTIONS IN NOTICE OF SALE AS GROUND FOR INJUNCTION. A substantial overstatement of the mortgage debt was made by a mortgagee in a notice of sale given in a foreclosure by advertisement. Held, that a temporary injunction restraining the sale until the amount of the debt is ascertained may issue in the discretion of the court. Ekeberg v. Mackay, 131 N. W. 787 (Minn.).

ACTS RESTRAINED OVERSTATEMENT OF MORTGAGE DEBT

In this case there is no purely equitable right of redemption to give equity an exclusive jurisdiction. Cf. Alston v. Morris & Co., 113 Ala. 506, 20 So. 950. However, unless the sale were restrained, the mortgagee would be able to bid the amount of the indebtedness claimed, without having to pay to the sheriff for the mortgagor the excess over the actual debt. REV. LAWS OF MINN., 1905, § 4466. To redeem under the statute, the mortgagor would have to tender the amount for which the land sold. Dickerson v. Hayes, 26 Minn. 100, I N. W. 834. It is true that the mortgagor could afterwards recover the excess at law. Spottswood v. Herrick, 22 Minn. 548. And this seems an adequate remedy for the money loss. But meanwhile the statutory right to redeem at the lower price, for which, if the notice had been correct, the land would probably have sold, is lost to him. Money damages for the loss of an interest in land being inadequate, equity protects that right in specie. The opportunity thus afforded mortgagors to delay a sale is a danger which may be guarded against by a proper exercise of the court's discretion.

INNKEEPERS-DUTIES TO TRAVELLERS AND GUESTS-WHO ARE GUESTS. -The plaintiff, a traveller, went to the defendant's inn and arranged to leave his horse there over night. He bought a drink of whisky and a cigar and departed. The horse was stolen that night without any fault of the defendant. Held, that the innkeeper is not liable. Ticehurst v. Beinbrink, 129 N. Y. Supp. 838 (Sup. Ct., App. T.).

In England and most American jurisdictions, including New York, an innkeeper is an insurer of his guest's property. Morgan v. Ravey, 6 H. & N. 265; Hulett v. Swift, 42 Barb. (N. Y.) 230, aff. 33 N. Y. 571. See BEALE, INNKEEPERS AND HOTELS, §§ 183-185. There is a conflict of authority as to whether a traveller, merely by leaving his horse at the inn, becomes a guest. The principal case, which seems to represent the sounder view, holds he is not a guest. Healey v. Gray, 68 Me. 489. The cases contra argue that the compensation due the innkeeper for feeding the horse is sufficient to make the owner a guest. See Yorke v. Grenaugh, 2 Ld. Raym. 866, 868; Mason v. Thompson, 9 Pick. (Mass.) 280, 285. They admit that the rule would be otherwise if the property were inanimate and no compensation were to be paid. See Russell v. Fagan, 7 Houst. (Del.) 389, 394, 8 Atl. 258, 260; Yorke v. Grenaugh, supra, 868. Compensation, therefore, seems to be the basis of these decisions. That should make the innkeeper liable as a bailee for hire, but it hardly seems that the contract of bailment should make the bailor a guest when he himself neither boards nor lodges at the inn and does not intend to do so. Ingallsbee v. Wood, 33 N. Y. 577. The fact that the plaintiff bought drink, if it established the relation of innkeeper and guest, should not affect the result of the case, for the relation had ceased at the time of the loss. Hoffman v. Roessle, 39 N. Y. Misc. 787, 81 N. Y. Supp. 291. See Clark v. Ball, 34 Colo. 223, 82 Pac.

529.

INSURANCE WAIVER OF CONDITIONS CONDITION FOR PARTIAL FORFEITURE. A sick benefit policy provided that the insured's failure to notify the insurer of the illness within a certain time should limit the latter's liability to one-fifth of the amount it would otherwise have to pay. After breach of this condition the insurer denied any liability. Held, that the insurer may set