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there. Westaway v. Chicago, etc. Ry. Co., 56 Minn. 28, 57 N. W. 222; Burns v. North Chicago Rolling Mill Co., 65 Wis. 312, 27 N. W. 43. The court recognizes this rule, but distinguishes the principal case on the ground that the train itself does the injury, while in this case not the blasting but the horse causes it. This distinction, even if true, goes only to the issue of legal cause, one of fact, whereas the difficult point is whether or not the defendant violated a duty. No satisfactory distinction is perceived, and if the railroad cases are right, the propriety of the decision in the principal case may well be doubted. There is, however, a tendency to limit the rule strictly to cases of the crossing-signal type. O'Leary v. Erie R. Co., 51 N. Y. App. Div. 25, 64 N. Y. Supp. 511.

SALES – RISK OF Loss - CONDITIONAL SALES. - The plaintiff sold the defendant a piano, title to remain in the seller till the price was paid. On the buyer's default after a portion of the price had been paid, the seller replevied the piano. Before termination of the suit the piano was destroyed without fault of the plaintiff. Held, that the defendant is not entitled to a return of the payment made. Hollenberg Music Co.v. Barron, 140 S. W. 582 (Ark.).

By the weight of authority a retaking of the property on default of the buyer precludes any right to the unpaid purchase price. Rodgers v. Bachman, 109 Cal. 552, 42 Pac. 448; Perkins v. Grobben, 116 Mich. 172, 74 N. W. 469. But it allows the seller to retain payments already made, since that was the bargain entered into. Angier v. Taunton Paper Mfg.Co., 1 Gray (Mass.) 621. It seems obvious that in this state of the law a destruction of the property could not affect the rights of the parties. A conditional sale, however, should be treated as a mortgage by the buyer to the seller. Consequently the seller should be allowed to retake the property and sue for the purchase price. See WILLISTON, SALES, $ 579. This has been allowed even when the seller has resold at a loss. Dederick v. Wolfe, 68 Miss. 500, 9 So. 350. It would follow that the buyer should also bear the total loss of the property. The seller, then, having a right to the purchase price, might keep payments already made. This view, adopted by the principal case, more accurately defines the rights of the parties, though in the immediate case the result is the same on either view. Under it the seller is forced to take simply as security, and a situation where he might have both the property and most of the purchase price is avoided.

TAXATION WHERE PROPERTY MAY BE TAXED SUCCESSION Tax ON SHARES OF JOINT STOCK COMPANY HELD BY NON-RESIDENT. The decedent, a resident of New Jersey, owned shares in a joint stock company having its principal office in New York. An appeal was taken from an assessment of the stock at full valuation under the Transfer Tax Law of New York on the ground that it should be limited to that proportion of the value of the stock which the assets located in New York bore to the total assets. Held, that the appeal should be allowed. Estate of Willmer, 46 N. Y. L. J. 853 (N. Y., Surr. Ct., Nov. 22, 1911).

The transfer of corporation stock held by a non-resident may be taxed by the state of incorporation, for the law of that state is called upon to effect it. Matter of Bronson, 150 N. Y. 1, 44 N. E. 707.

full vali of the stock may be taxed, regardless of how much of the corporation's property is outside the state. Matter of Palmer, 183 N. Y. 238, 76 N. E. 16. It would seem that shares in a joint stock company organized under the laws of the state should be similarly assessed. Though a joint stock company is not a creature of the state as a corporation is, to transfer a share the law of the state is similarly called upon. Matter of Jones, 172 N. Y. 575, 65 N. E. 570. The shares are not simply a proportional interest in partnership property. Though the stock company owns only realty, the shares are personalty. Pittsburg Wagon Works' Estate, 204 Pa. St. 432, 54 Atl. 316. But the decision is fair. In the analogous case of a corporation incorporated in two states, each taxes the transfer of stock only on the proportion of property in its jurisdiction. Gardiner v. Carter, 74 N. H. 507, 69 Atl. 939. Moreover, the taxing of the transfer of stock in a domestic corporation owning property outside the state may have to be similarly limited under the doctrine that property taxable elsewhere cannot be taxed by the state of incorporation. See Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 26 Sup. Ct. 36.

TRIAL - PROVINCE OF COURT AND JURY — RIGHT OF COURT TO QUESTION WITNESSES. — In the course of a trial for murder the judge questioned several witnesses in order to develop their testimony more fully than the prosecuting attorney had done. Held, that this is not error. State v. Keehn, 118 Pac. 851 (Kan.).

In England it has always been considered the right and duty of the trial judge to question witnesses already on the stand or even to call a new witness when he deems it desirable to bring out the truth more fully. Coulson v. Disborough, (1894) 2 Q. B. 316. A few American decisions also seem to give him a wide discretion in this matter. Epps v. State, 19 Ga. 102; Lefever v. Johnson, 79 Ind. 554. But the tendency in this country has been to restrict the exercise of this discretionary power. Dunn v. People, 172 Ill. 582, 50 N. E. 137; Barlow Brothers Co. v. Parsons, 73 Conn. 696, 49 Atl. 205. The principal case shows a wholesome reaction from this narrow policy. See 1 WIGMORE, EVIDENCE, S 784; 4 id. § 2484.

TRIAL - VERDICTS — SPECIAL FINDINGS. — In an action for negligence the defense of contributory negligence was interposed. In answer to a question of the court as to whether the plaintiff used due care, the jury answered, “We do not know.” On a general verdict for the plaintiff the plaintiff obtained judgment. Held, that the judgment should be reversed. Minor v. Stevens, 118 Pac. 313 (Wash.).

In states where the jury can be required to render special findings the general rule is that a party can insist on a definite answer to interrogatories submitted to the jury. Atchison, etc. Ry. Co. v. Hale, 64 Kan. 751, 68 Pac. 612. Where the party does not insist on a definite answer, the better view is that a finding such as the one in the principal case is equivalent to a finding adverse to the party having the burden of proof of the issue. Croan v. Baden, 73 Kan. 364, 85 Pac. 532. Contra, Darling v. West, 51 Ia. 259, 1 N. W. 531. Contributory negligence is an affirmative defense in Washington. Spurrier v. Front Street Cable Ry. Co., 3 Wash. 659, 29 Pac. 346. The decision of the principal case would therefore seem difficult to support.

Trusts — CESTUI'S INTEREST IN RES — APPORTIONMENT OF RENT BETWEEN LIFE-TENANT AND REMAINDERMAN. — A lease of trust property was made, by which “rent" was to be paid in a certain sum in cash at the signing of the lease and monthly payments thereafter. Held, that the sum paid on signing the lease should not be apportioned in monthly payments throughout the term to the successive cestuis que trust. In re Archambault's Estate, 81 Atl. 314 (Pa.).

Strictly, the cash payment here is not rent, but something given in addition to it. Cf. Hatherton v. Bradburne, 13 Sim. 599; Ardesco Oil Co. v. North American Oil and Mining Co., 66 Pa. St. 375. See 2 Wood, LANDLORD AND TENANT, $ 445. Such a bonus paid for the privilege of obtaining the lease is a form of casual profits, and the decision appears sound in treating it as income and not corpus. A close analogy exists in the fines for renewal of a lease, always considered as income. Milles v. Milles, 6 Ves. 761. See LEWIN, TRUSTS, 12 ed., 876. And even if we follow the court and treat the payment as rent, it should properly go to the life-tenant, for rent is not apportionable at common law, though paid in advance. Agnew's Estate, 17 Pa. Super. Ct. 201; Ellis v. Rowbotham, (1900) 1 Q. B. 740. It is obvious, however, that if a disproportionately large amount of the rent were paid down and a nominal amount yearly, it would be a lease unfair to the remainderman and void. Cf. Doe d. Sutton v. Harvey, 1 B. & C. 426; FAWCETT, LANDLORD AND TENANT, 3 ed., 53-54. For equity will compel the trustee to perform his duties impartially.

Wills — EXECUTION- SIGNATURE OF ATTESTING WITNESS. - An attesting witness to a will inadvertently signed the testator's name instead of his cwn. A statute provided that each of the attesting witnesses should sign his name as a witness. Held, that the will is entitled to probate. In the Matter of Jacobs, 73 N. Y. Misc. 162 (Surr. Ct.).

The Statute of Frauds provided that devises of lands should be attested and subscribed by three or four witnesses. STAT. 29 CAR. II. c. 3, § 5. It is well settled by the decisions under the Statute of Frauds and statutes with like provisions that this requirement is satisfied by any writing animo attestandi. Harrison v. Harrison, 8 Ves. 185; Goods of Olliver, 2 Spinks Ecc. Cas. 57. The same result has generally been reached under statutes like the New York statute. Morris v. Kniffin, 37 Barb. (N. Y.) 336; Garrett v. Heflin, 98 Ala. 615, 13 So. 326. A similar statute in California, however, has been more strictly construed, the court holding that a provision that an attesting witness must sign his name is not satisfied by the signing of a name other than that of the witness. Estate of Walker, 110 Cal. 387, 42 Pac. 815. Cf. Stewart v. Beard, 69 Ala. 470. The view of the California court would seem preferable to that expressed in the principal case.


WITNESSES COMPELLING TESTIMONY SUBPENA DUCES TECUM EMPLOYEE TO PRODUCE EMPLOYER's Books. - An employee of a firm, being in charge of one of the departments of the business, was served with a subpæna duces tecum to produce certain documents which belonged to his employers, but were in the department of which he had charge. He refused to produce them. Held, that in the absence of evidence of authority from his employers, the order for a writ of attachment should be discharged. Eccles & Co. v. Louisville & Nashville R. Co., 28 T. L. R. 67, 132 L. T. 86 (Eng., C. A., Nov. 17, 1911).

To enforce a subpæna duces tecum the document must be in the control of the witness. Amey v. Long, 9 East 473; Lee v. Angas, L. R. 2 Eq. 59. See 4 WIGMORE, EVIDENCE, $ 2200 (4). What is sufficient control is largely a question of the facts of each case. Campbell v. Earl of Dalhousie, L. R. i H. L. Sc. 462. Although one may be legally the possessor of the document, another may have such custody of it as to warrant the issuing of a subpæna to him. Corsen v. Dubois, í Holt 239; Amey v. Long, 1 Camp. 14. On the other hand, it would seem that the legal possessor, though not having actual custody at the time, could be subpænaed. Steed v. Cruise, 70 Ga. 168. But an employee ordinarily has no such control over his master's papers as to warrant his being ordered to bring them into court. Queen v. Stuart, 2 T. L. R. 144; Crowther v. Appleby, L. R. 9 C. P. 23. See Lorenz v. Lehigh Nav. Co., 5 Leg. Gaz. (Pa.) 174. Cf. King v. Daye, (1908) 2 K. B. 333. So a steward has been held not compellable to produce papers belonging to his master. Earl of Falmouth v. Moss, 11 Price 455. Cf. Attorney-General v. Wilson, 9 Sim. 526. So as to a bank clerk. President, etc. of Bank of Utica v. Hillard, 5 Cow. (N. Y.) 153, 419. And a clerk in a public office. Austin v. Evans, 2 M. & G. 430. The rule laid down in the principal case that the party calling for the papers must show that the witness has the ability to bring them into court is well recognized. Hall v. Young, 37 N. H. 134.

WITNESSES — IMPEACHMENT ADMISSIBILITY OF SUBSEQUENT INCONSISTENT STATEMENTS OF ABSENT WITNESS. In the absence of a witness from the jurisdiction his testimony in a former trial of the same cause was admitted. It was then sought to introduce an ex parte affidavit made subsequently wherein the witness confessed the falsity of this testimony. Held, that the affidavit is inadmissible, since the witness must first be questioned as to the circumstances of making it. Baker v. Sands, 140 S. W. 520 (Tex., Ct. Civ. App.).

A witness's testimony cannot be impeached by inconsistent statements without first directing his attention to them and the circumstances when they were made. Queen's Case, 2 B. & B. 284; Trumble v. Happy, 114 Ia. 624, 87 N. W. 678. Contra, Tucker v. Welsh, 17 Mass. 160. This is necessary to give the witness opportunity for denial or explanation. But where his death or absence renders the requirement impossible of performance, the impeaching party loses valuable evidence. For this reason, dying declarations may be impeached by contradiction, though a foundation cannot be laid. Carver v. United States, 164 U. S. 694, 17 Sup. Ct. 228; State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312. Contra, State v. Taylor, 56 S. C. 360, 34 S. E. 939. It is held, however, that to impeach former testimony or depositions, the preliminary question is indispensable, since there has been opportunity to lay the foundation. Jenkins v. Lutz, 26 Ind. App. 150, 59 N. E. 288; Ayers v. Watson, 132 U. S. 394, 10 Sup. Ct. 116. But in the principal case the contradictory statement was made after the opportunity for cross-examination. The weight of authority, however, refuses to extend the exception beyond dying declarations. Craft v. Commonwealth, 81 Ky. 250; Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. 337. Contra, Downer v. Dana, 19 Vt. 338. The rule produces the curious result that, of contradictory depositions by an unavailable witness, the party introducing a deposition first is immune from attack. The witness should not be sheltered to the miscarriage of justice. The solution lies not in extension of the exception, but in making the requirement of the question discretionary. Rothrock v. Gallaher, 91 Pa. St. 108. See 13 Harv. L. REV. 306. This the court recognizes, but rests its decision upon the impeacher's opportunity to lay the foundation by deposition.

WITNESSES PRIVILEGED COMMUNICATIONS HUSBAND AND WIFE. In an action for separation for cruelty the wife sought to introduce evidence of statements made to her by the defendant, a physician, as to the necessity of an operation for abortion which she permitted him to perform. Held, that the evidence is not privileged as a marital communication. Sheldon v. Sheldon, 131 N. Y. Supp. 291 (App. Div.).

The reason for the privilege against disclosure of confidential communications is the belief that it is socially desirable to foster certain relations of confidence. See 4 WIGMORE, EVIDENCE, $S 2285, 2332. This case decides that when two of these relations coincide, the fact that a husband makes a statement to his wife in his capacity as physician puts an end to the privilege based on the marital relation and leaves only the other privilege, due to the physician and patient relation, waivable by the patient. It is submitted that the court thus creates an illogical and impolitic limitation on the protection given to confidences between husband and wife. The actual result, however, is desirable, for the action is between the spouses for a wrong done to the one by the other. In such circumstances the reason for the privilege ceases and it should cease also. See 4 WIGMORE, EVIDENCE, § 2338 (2). Some legislatures have recognized this. See People v. Warner, 117 Cal. 637, 639, 49 Pac. 841; Goelz v. Goels, 157 III. 33, 41, 41 N. E. 756, 758. The New York legislature has not, and the court endeavoring to work justice has adopted a rule undesirable in actions not between the couple.


INTRODUCTION TO THE STUDY OF LAW. A Handbook for the Use of Egyptian

Law Students. By Frederic M. Goadby. London: Butterworth and

Company. 1910. pp. xiii, 384. Partly from a praiseworthy modesty, which is manifest throughout the book, and partly to avoid the misunderstandings inevitably attaching to the term wherever French law is paramount, Mr. Goadby has refrained from giving his book the title of an introduction to or treatise upon Jurisprudence. Primarily it is designed for an introduction to the history and system of the law administered in Egypt. But the circumstances of a French code, administered to an increasing extent along English lines to a people predominantly Mohammedan, and so governed in many matters by the Mohammedan law, affords an unusual opportunity for use of the comparative method and gives the book more claim to be a treatise upon Jurisprudence than some more pretentious works which have assumed that title.

The exigencies of writing primarily for the Egyptian student have carried with them disadvantages and advantages. One disadvantage is that some explanations necessary for the author's immediate audience are elucidations of the obvious elsewhere. A characteristic example is the careful distinction of a Justice of the High Court, a Lord Justice and a Justice of the Peace from the abstract justice which they administer according to law. Another is the use of terms in senses well understood in French (and so in Egyptian) law or polity which differ from those which we employ. For example, when one reads that the Code of Justinian was a “collection of Imperial decrees” and that the Novels were later “decrees” (p. 10) the first impulse is to charge the author with gross carelessness or inaccuracy. But “decree" is used here in the French sense of executive law-making, if one may put it so, and it seems that in Egypt there is legislative law-making in the form of “laws” and executive law-making in the form of “decrees.” Hence the word chosen conveys a clear notion of the true character of Roman imperial legislation to the Egyptian student, although it conveys a wrong idea to one who has in mind the Roman decretum or the Anglo-American judicial decree. On the other hand it is a real advantage that the book is made concrete and that old formulas have to stand the test of application to situations their framers had never heard of. Titius and Seius, otherwise John Doe and Richard Roe, in their Egyptian guise of Ahmed and Zaky, take on a new life.

In common with all recent English writers, the author, upon the whole, is an orthodox Neo-Austinian. Mr. Salmond, many years ago, did a distinct service to analytical jurisprudence by reviewing its main tenets in the light of German juristic writing and taking over and applying a number of German ideas. Mr. Goadby, writing for students who are governed by a French code, does a similar service in adapting to each other, as well as may be, the doctrines of the English analytical school and those of the modern French jurists. Some tendency toward the philosophical view is also manifest. In part this may be due to French influence. But the references to T. H. Green's Principles of Political Obligation, the best bit of philosophical jurisprudence in English, are encouraging. The influence of the recent German conception of the legal order, the end, as the important point rather than law, the means thereto, is also manifest, although we are told that the main problems of jurisprudence are two, the nature of law, and the nature of the principal legal relations (p. 5). The problems which have assumed greater importance recently, namely, the

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