as to tort jurisdiction would, like that as to contracts, follow the ancient Continental test of the nature of the act, except in the single instance of injuries to things on shore by ships. This exception could then be removed by statute as was done in England.21

RECENT CASES.

ADMIRALTY - JURISDICTION: TORTS

MARITIME NATURE. A contracting stevedore's employee was injured on a vessel by the negligence of the stevedore in failing to supply a safe place to work. Held, that this tort is within admiralty jurisdiction. Imbrovek v. Hamburg-American Steam Packet Co., 190 Fed. 229 (Dist. Ct., D. Md.) See NOTES, p. 381.

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BANKRUPTCY RIGHTS AND DUTIES OF BANKRUPT PERJURY IN EXAMINATION. The Bankruptcy Act, § 7a (9), provides that "the bankrupt shall submit to an examination ; but no testimony given by him shall be offered in evidence against him in any criminal proceeding." Held, that this provision does not bar a prosecution of the bankrupt for perjury committed in his examination. Glickstein v. United States (U. S. Sup. Ct., Dec. 4, 1911).

This case settles the law upon a clause as to which there had been a conflict in the authorities. Some cases had held that it applied to perjury, as the language covered all criminal proceedings, and to supply a reservation in the case of perjury similar to that in other federal statutes compelling testimony would amount to judicial legislation. U. S. REV. STAT., 1878, § 860; 27 U. S. STAT. AT LARGE, p. 443, c. 83; United States v. Simon, 146 Fed. 89. See In re Logan, 102 Fed. 876. Others had decided that it did not apply, since that construction would, by removing the penalty for perjury, defeat the obvious intent of Congress to secure truthful testimony. Edelstein v. United States, 149 Fed. 636; Wechsler v. United States, 158 Fed. 579. The principal case has wisely adopted this latter view. See 20 HARV. L. Rev. 571.

MISREPRESENTATION.

BILLS AND NOTES - - DEFENSES The making of a promissory note was induced by misrepresentations of the payee's agent, which were not intentionally false. Held, that the maker has a defense against the payee. McNeill v. Bay Springs Bank, 56 So. 333 (Miss.).

It is generally held that a contract induced by innocent misrepresentations may be rescinded in equity. Redgrave v. Hurd, 20 Ch. D. 1; Wilcox v. Iowa Wesleyan University, 32 Ia. 367. But see Southern Development Co. v. Silva, 125 U. S. 247. By the weight of authority this does not constitute a defense at law. Kennedy v. Panama, etc. Mail Co., L. R. 2 Q. B. 580; King v. Eagle Mills, 10 All. (Mass.) 548. Contra, Kirschbaum v. Jasspon, 123 Mich. 314, 82 N. W. 69. A distinction should be made between the cases where the misrepresentations are relied on to found an action of tort for damages, and where as in the principal case they are used to avoid a contract. In the former cases it is sought to impose a liability for making innocent misrepresentations. In the latter, it is sought to prevent the person making these misrepresentations from reaping any benefit from them. In the latter cases, on principle, relief should be allowed the principal case and the Ninth Circuit case as to whether the tort of a contracting stevedore is maritime. But the paramount advantages of this test are shown in 18 HARV. L. REV. 299. § 7.

21 ADMIRALTY COURT ACT, 1861, (24 & 25 VICT. c. 3),

either in equity or at law on the ground that it is not fair that a person should profit from his own misrepresentations. The doctrine of the principal case would seem to be a desirable one.

CONFLICT OF LAWS - JURISDICTION FOR DIVORCE - INDIAN DIVORCE. A white man married and then abandoned his white wife, the plaintiff, in Illinois. He went to live among the Pottawatomie Tribe of Indians in Indian Territory, by whom he had formerly been adopted. He acquired land there and died. By the tribal law the marriage status of members of the tribe might be terminated at will and abandonment operated as a divorce. The plaintiff, claiming as his widow, sought an interest in his real estate. Held, that the Indian divorce is valid. Cyr v. Walker, 116 Pac. 931 (Okl.). See NOTES, p. 374.

CONFLICT OF LAWS - RECOGNITION OF FOREIGN JUDGMENTS EFFECT OF REVERSAL OF JUDGMENT GIVEN EFFECT IN ANOTHER STATE. — A. and B. claimed the right of custody of a child. A decree of an Illinois court awarded the custody to A. Subsequently in habeas corpus proceedings brought by B. in Kansas, the court held that the Illinois decree was controlling. Afterwards, the appellate court in Illinois reversed the judgment of the lower court. Held, that the judgment of the Illinois appellate court is not admissible, in a prosecution in Kansas for kidnapping, to prove that A. did not have lawful custody of the child. State v. Tillotson, 117 Pac. 1030 (Kan.).

The pendency of an appeal from a final judgment does not prevent that judgment from being successfully pleaded as res judicata. Parkhurst v. Berdell, 110 N. Y. 386, 18 N. E. 123. Does the subsequent reversal of the judgment on appeal affect the rights of the parties? That depends, it is submitted, on the basis of the rights claimed. If, in the principal case, the Kansas court merely dismissed the proceedings before it, the basis of A.'s right was the Illinois decree, and the reversal took away that right. But if, as it was held, the Kansas court made an affirmative decree, the decree established a new right. Subsequent reversal of the Illinois decree could affect this right only as a later determination of the right to custody. The Illinois court was one of competent jurisdiction and its decree entitled to full faith and credit. Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906. However, as the judgment of reversal only purported to declare the right to custody at the time when the suit began, it did not involve a later determination of that right; consequently it was rightly held inadmissible. It might, however, have been ground on which to base a new suit. Cf. White v. Atchison, etc. Ry. Co., 74 Kan. 778, 88 Pac. 54.

CONFLICT OF LAWS RECOGNITION OF FOREIGN PENAL LAWS SUIT TO COLLECT A FOREIGN TAX. The state of Maryland and the city of Baltimore sued the defendant in New York for the amount of taxes assessed against his personalty while he was a resident of Baltimore. Maryland courts consider that a tax raises a contractual liability while New York courts do not. Held, that the plaintiffs cannot recover. State of Maryland v. Turner, 46 N. Y. L. J. 935 (N. Y., Sup. Ct.).

It is an elementary principle that one country will not enforce the penal laws of another country. See I WHARTON, CONFLICT OF LAWS, 3 ed., §§ 4, 4 b. This principle probably applies with equal force to revenue laws. See Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 290, 8 Sup. Ct. 1370, 1374. At all events a special assessment for improvements on real property is in the nature of a penalty and is not recoverable abroad. Municipal Council of Sydney v. Bull, [1909] 1 K. B. 7. Whether the law which is presented for enforcement is penal or not is a question for the consideration of the court whose aid is invoked. Huntington v. Attrill, [1893] A. C. 150. Even if the obligation has been reduced

I

to a judgment in its home forum, the foreign court must decide for itself what is the true nature of the liability. See Huntington v. Attrill, 146 U. S. 657, 683-684, 13 Sup. Ct. 224, 234. A fortiori, then, in the principal case the court was clearly right in abiding by its own view of the nature of a tax. Any other decision would put the state in the peculiar position of collecting taxes for such states as regard the obligation as contractual, and refusing to collect the same sort of tax for other states that regard it as penal. See Huntington v. Attrill, [1893] A. C. 150, 155.

CONFLICT OF LAWS - REMEDIES: RIGHT OF ACTION FOREIGN CONTRACT CONTRARY TO PUBLIC POLICY OF FORUM. - Jewelry delivered to an express company for carriage from New York to Virginia was lost en route. The contract of shipment, limiting the company's liability to fifty dollars, was valid in New York, where it was made, but was invalid by statute in Virginia, where suit was brought. Held, that the plaintiff may recover the full value of the goods lost. Adams Express Co. v. Green, 72 S. E. 102 (Va.).

The best rule is that the law of the place of contracting should govern the validity of a contract. See 23 HARV. L. REV. 260, 270–272. But in the last analysis a sovereign state, subject in this country to the federal and state constitutions, may deny relief or enforce liability in its courts as it pleases. Since, however, most sovereign states are interested in the administration of justice, a valid contract will usually be enforced. Forepaugh v. Delaware, etc. R. Co., 128 Pa. St. 217, 18 Atl. 503; Greenwood v. Curtis, 6 Mass. 358. Yet if the court believes that justice will result from not enforcing the contract, there is nothing to prevent a denial of relief. See 1 WHARTON, CONFLICT OF LAWS, 3 ed., § 4a. So in the principal case the contract was not enforced because it was said to be against the public policy of the state. The Kensington, 183 U. S. 263, 22 Sup. Ct. 102; Chicago, B. & Q. R. Co. v. Gardiner, 51 Neb. 70, 70 N. W. 508. Public policy differs in the various jurisdictions, and the canons for determining public policy are so indefinite, that it is not surprising that there are cases contra. Fonseca v. Cunard Steamship Co., 153 Mass. 553, 27 N. E. 665; Talbott v. Merchant's Despatch Transportation Co., 41 Ia. 247. Criticism of such cases would only involve us in questions of fact or economic principles. See 2 WHARTON, CONFLICT OF LAWS, 3 ed., § 471 C.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW ADMINISTRATION OF ESTATE OF ABSENTEE IRRESPECTIVE OF DEATH.- A Massachusetts statute provided that wherever a resident disappeared without leaving any known agent, the court might order the seizure of his property and after due notice appoint a receiver. If the absentee did not appear within fourteen years after his disappearance, or one year after the appointment of a receiver, if a receiver was not appointed within thirteen years after the date of his disappearance, his title was barred and his next of kin were entitled to distribution. Held, that the statute is constitutional. Blinn v. Nelson, 32 Sup. Ct. 1. See NOTES, P. 377.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW REGULATION OF FIRE INSURANCE RATES. A Kansas statute provided for a regulation of the rates of fire insurance companies. Held, that the statute is constitutional. German Alliance Ins. Co. v. Barnes, 189 Fed. 769 (Circ. Ct., D. Kan.). See NOTES, p. 372.

CONTEMPT POWER TO PUNISH FOR CONTEMPT NATURE OF CRIMINAL CONTEMPT.—The respondent was charged with contempt of court for disobeying an injunction. He moved to dismiss the charges, because the offense had been committed more than three years before the charges were filed.

Held, that the criminal Statute of Limitations does not apply to contempt of In re Gompers, 39 Wash. L. R. 761 (D. C., Sup. Ct.). See NOTES,

court. P. 375.

CONTRACTS · CONTRACTS UNDER SEAL- SUIT BY ONE NOT A PARTY TO CONTRACT. The defendant agreed with the plaintiff's mother by a contract under seal to support her for life. On the defendant's failure to keep his agreement, the plaintiff was compelled to support his mother. Held, that the plaintiff cannot recover from the defendant on the contract. Case v. Case, 203 N. Y. 263, 96 N. E. 440.

The strict regard which the law has held for the form of instruments under seal has usually permitted only the parties themselves to such an instrument to enforce it. Storer v. Gordon, 3 M. & S. 308; Chesterfield, etc. Colliery Co. v. Hawkins, 3 H. & C. 677. A principal cannot enforce a contract under seal made for him by an agent unless clearly made in the principal's name. Townsend v. Hubbard, 4 Hill (N. Y.) 351. Cf. Borcherling v. Katz, 37 N. J. Eq. 150. In jurisdictions where importance is still attached to a seal, the beneficiary of a contract under seal made for the benefit of a third party cannot sue upon it. Inhabitants of Farmington v. Hobert, 74 Me. 416; Cocks v. Varney, 45 N. J. Eq. 72, 17 Atl. 108. Many jurisdictions, however, have been more liberal and have allowed the beneficiary of a contract under seal to sue thereon. Coster v. Mayor, etc. of Albany, 43 N. Y. 399; Rogers v. Gosnell, 51 Mo. 466. This is usually the case where the promisor's covenant is to assume a mortgage. North Alabama Development Co. v. Orman, 55 Fed. 18; Central Trust Co. v. Berwind-White Coal Co., 95 Fed. 391. The plaintiff in the principal case should not be allowed to recover as a beneficiary, since apparently it was intended that he should only be incidentally benefited. Durnherr v. Rau, 135 N. Y. 219, 32 N. E. 49; N. O. St. Joseph's Association v. Magnier, 16 La. Ann. 338. But, it is submitted, the plaintiff had a quasi-contractual right of action for having discharged an obligation owed primarily by the defendant. Rundell v. Bentley, 53 Hun (N. Y.) 272, 6 N. Y. Supp. 609. See 24 HARV. L. REV. 583.

CONTRACTS -DEFENSES - INABILITY OF PLAINTIFF TO PERFORM REPUDIATION ON INSUFFICIENT GROUND AS WAIVER OF GOOD EXCUSE. A seller attempted to take advantage of the provision of an instalment contract giving the right of rescission in case of late payment. In a suit by the buyer, the jury found that this right was waived by repeatedly accepting overdue payments. Held, that the seller may not introduce evidence of the buyer's insolvency as a further excuse. Honesdale Ice Co. v. Lake Lodore Improvement Co., 81 Atl. 306 (Pa.).

One defense should not be waived by advancing another consistent one. See WILLISTON, SALES, § 495. Thus, a servant's dismissal is justifiable if a valid excuse existed though at the time the master alleged groundless reasons. Green v. Edgar, 21 Hun (N. Y.) 414; Boston Deep Sea Fishing and Ice Co. v. Ansell, 39 Ch. D. 339. For the servant cannot show good service or excuse for not serving well. See 19 HARV. L. REV. 63. But a lien is lost if an invalid ground is advanced for non-delivery of the goods. Boardman v. Sill, 1 Camp. 410, note; Witt v. Dersham, 146 Mich. 68, 109 N. W. 25. And there can be no objection to a deed as insufficient or an offer to pay as not in legal tender, if refusal is based upon other reasons. Keller v. Fisher, 7 Ind. 718; Beatty v. Miller, 94 N. E. 897 (Ind.). If repudiation on an invalid ground justifies the assumption that the tender will be refused though an existing breach be healed, repudiation excuses non-completion. Lathrop v. O'Brien, 57 Minn. 175, 58 N. W. 987; Braithwaite v. Foreign Hardwood Co., [1905] 2 K. B. 543. Cf. Clegg v. Southern Ry. Co., 135 N. C. 148, 47 S. E. 667. But if the breach is incurable, repudiation cannot be the cause of the plaintiff's non-performance,

and he has no excuse. Insolvency justifies refusal of credit and an assumption that the contract will not be carried out. Ex parte Chalmers, L. R. 8 Ch. 289. Consequently, the evidence in the principal case should be admitted unless the plaintiff shows he would have given notification of his intention and ability to buy for cash, but was misled because the defendant did not base his rescission on insolvency.

CONTRIBUTORY NEGLIGENCE - DIVISION OF DAMAGES BETWEEN NEGLIGENT VESSELS. An action was brought in a state court for damages caused to the plaintiff's vessel by a collision with the defendant's vessel, due to the negligence of both. Held, that the plaintiff may recover one-half of the loss suffered. St. Louis & Tennessee River Packet Co. v. Murray, 139 S. W. 1078 (Ky.).

Heretofore, if a plaintiff has brought his action in a state court for negligent injury to a vessel by collision, the common-law rule has been applied that if he is negligent he cannot recover. New York Harbor Towboat Co. v. New York, etc. Ry. Co., 148 N. Y. 574, 42 N. E. 1086. See Union Steamship Co. v. Nottinghams, 17 Grat. (Va.) 115, 123. An early Louisiana case stated that if both vessels were at fault the loss should be divided. Brickell v. Frisby, 2 Rob. (La.) 204. Later cases in that state refuse to apply this rule. Murphy v. Diamond, 3 La. Ann. 441. Except for the Louisiana case, the principal case is the only instance of an action in a state court where the admiralty rule of damages has been applied. It directly overrules an earlier Kentucky decision. Broadwell v. Swigert, 7 B. Mon. (Ky.) 39.

CRIMINAL LAW - APPEAL PRESUMPTION AS TO HARMLESS ERROR.At the trial of the defendant for perjury a question was submitted to the jury which the court should have decided. The defendant was convicted. Held, that to secure a reversal the defendant must show that the error was prejudicial to him. Coleman v. State, 118 Pac. 594 (Okl.).

Several jurisdictions have the rule that if the error might have prejudiced the rights of the defendant, there must be a reversal. Boyd v. State, 16 Lea (Tenn.) 149. See Boren v. State, 32 Tex. Cr. R. 637, 645, 25 S. W. 775, 776. Others hold that if there was error it is presumed prejudicial to the defendant, and unless this presumption is rebutted, a reversal must follow. Barnett v. Commonwealth, 84 Ky. 449, 1 S. W. 722; State v. Johnson, 69 Ia. 623, 29 N. W. 754. The principal case holds that a defendant must show the appellate court that the error prejudiced his rights in order to secure a reversal. This rule is the best, and has the support of advanced thinkers on criminal procedure. See 35 REPORTS OF AMERICAN BAR ASSOCIATION, 624 et seq. A recent amendment to the Constitution of California, proposed by the legislature, provides that there shall be no reversal in a criminal case unless the court believes the error has resulted in a miscarriage of justice. CAL. STAT. OF 1911, 1798, c. 36.

CRIMINAL LAW INSANITY BURDEN OF PROOF. In a trial for murder the defendant introduced evidence of insanity. Held, that the burden is upon the prosecution to prove sanity beyond a reasonable doubt. Adair v. State, 118 Pac. 416 (Okl.).

The principal case is correct in holding that insanity is a question of responsibility, and not an affirmative defense, the presumption of sanity placing the burden of going forward upon the defendant but not relieving the prosecution of its duty of proving all essential elements of the offense. For the authorities and principles involved, see 4 HARV. L. REV. 45, 55; 11 id. 62; 13 id. 59; 18 id. 312.

DAMAGES - CONSEQUENTIAL DAMAGES

RECOVERY FOR MENTAL AN

GUISH CAUSED BY BREACH OF CONTRACT. The plaintiff bought a ticket for