have contemplated at the time of making the contract as a probable result of the breach. Hadley v. Baxendale, 9 Exch. 341; Swift River Co. v. Fitchburg R. Co., 169 Mass. 326, 47 N. E. 1015. But if such notice be given, the carrier is liable for special damages. Illinois Central R. Co. v. Byrne, 205 Ill. 9, 68 N. E. 720; Gledhill Wall Paper Co. v. Baltimore & Ohio R. Co., 119 N. Y. Supp. 623. This rule holds even though the carrier must charge the same rate. Chicago, etc. Ry. Co. v. Planters' Gin and Oil Co., 88 Ark. 77, 113 S. W. 352. If the carrier is notified after the goods have arrived at their destination and delays delivery, he is liable for the loss suffered. Bourland v. Choctaw, etc. Ry. Co., 99 Tex. 407, 90 S. W. 483. Since the carrier is forbidden by law to refuse the goods, impose special rates, or stipulate against liability, the only reason for requiring notice is that he may know of the emergency in time to exercise the higher degree of care which the situation demands; and for this purpose notice a reasonable time before the delay has occurred should be as effective as notice at the time of making the contract. But the authorities hold otherwise. Missouri, etc. Ry. Co. v. Belcher, 89 Tex. 428, 35 S. W. 6; Bradley v. Chicago, etc. Ry. Co., 94 Wis. 44, 68 N. W. 410.

ELECTRIC WIRES

LANDS.

APPLICATION OF THE PRINCIPLE OF FLETCHER v. RY- The plaintiff company maintained telegraph lines and electrical appliances on a private right of way and on the highway. The defendant company operated on its adjacent private right of way an electric railroad whose currents interfered with the plaintiff company's lines. The plaintiff sought to enjoin the operation of the railroad unless devices to prevent the interference were installed. Held, that an injunction will not be granted. Postal Tel. & Cable Co. v. Chicago, L. S. & S. B. Ry. Co., 97 N. E. 20 (Ind.).

For a discussion of the principles involved, see 24 HARV. L. REV. 322.

EMINENT DOMAIN - NATURE OF THE RIGHT OF EMINENT DOMAINREMOVAL OF DAM FOR PUBLIC HEALTH. A statute declared that where a mill had become useless and so remained without repair for five years, the privilege should cease, as against the public health, convenience, and welfare, and that commissioners, wherever they deemed it conducive to those objects, might, without compensation, cause the dam to be removed, and the watercourse cleaned out and improved. Held, that the statute is unconstitutional. Kiser v. Board of Commissioners of Logan County, 97 N. E. 52 (Oh.). See NOTES, p. 551.

EMINENT DOMAIN - WHAT PROPERTY MAY BE TAKEN - PROPERTY ALREADY DEVOTED TO PUBLIC USE. A city, under a general power, attempted to condemn land already appropriated to the use of a public library, in order to widen a street. It did not appear what part of the library's land the city desired to expropriate. Held, that the property cannot be taken under a general power. City of Moline v. Greene, 96 Ñ. E. 911 (Ill.).

Property may generally be taken by eminent domain from one public use and subjected to another. City of Boston v. Inhabitants of Brookline, 156 Mass. 172, 30 N. E. 611; Matter of Petition of New York, etc. Ry. Co., 99 N. Y. 12, 1 N. E. 27. But such change of ownership is not allowed where there is no change in the use or its manner of exercise. Suburban R. Co. v. Metropolitan West Side Elevated R. Co., 193 Ill. 217, 61 N. E. 1090. Nor is it permissible where the prior use would be thereby materially impaired or destroyed, unless such legislative intent appears expressly or by necessary implication. Evergreen Cemetery Association v. City of New Haven, 43 Conn. 234. Conversely, property not essential or already in actual use may be recondemned under a general power. Railroad Co. v. Village of Belle Centre, 48 Oh. St. 273, 27 N. E. 464. Some courts have gone to a considerable length in allowing such expropriation. Butte, etc. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 41 Pac. 232;

Wheeling Bridge Co. v. Wheeling & Belmont Bridge Co., 34 W. Va. 155, II S. E. 1009. Thus one court has allowed a railroad station platform to be taken for a street under a general power. State, New York & Long Branch R. Co. v. Drummond, 46 N. J. L. 644. While another has reached the same result with respect to a school lot, although the use was somewhat impaired. Inhabitants of Easthampton v. County Commissioners of Hampshire, 154 Mass. 424, 28 N. E. 298. In view of such decisions it would seem that a contrary conclusion might well have resulted from a further consideration of the facts in the principal case.

ESTOPPEL-ESTOPPEL IN PAIS-WHETHER SOVEREIGN MAY BE ESTOPPED. -By an avulsion the state acquired whatever right it had to the land in controversy. The plaintiff subsequently held for over twenty years. During this time the state acquiesced in the plaintiff's possession as owner, and the plaintiff made costly improvements and paid the taxes levied by the state. The state thereafter made its first claim to the land. Held, that the state is estopped from asserting its claim. State of Iowa v. Carr, 191 Fed. 257 (C. C. A., Eighth Circ.).

For a discussion of the principles involved, see 19 HARV. L. REV. 126.

EVIDENCE - HEARSAY - PROOF OF RACE OF WITNESS'S PARENTS. - The defendant was indicted under a statute for selling liquor to A., a half-breed Indian. A. was allowed to testify that his father was a Portuguese and his mother a full-blooded Indian. Held, that this is not error. State v. Rackich, 119 Pac. 843 (Wash.).

It is well settled that a witness may testify to his own age. Commonwealth v. Stevenson, 142 Mass. 466, 8 N. E. 341; People v. Ratz, 115 Cal. 132, 46 Pac. 915. While often such testimony is hearsay, strictly speaking, the courts have held it admissible, probably because the information derived from family talks, birthdays, and other sources amounts practically to knowledge of the fact. State v. Miller, 71 Kan. 200, 80 Pac. 51; Loose v. State, 120 Wis. 115, 97 N. W. 526. See 6 HARV. L. REV. 449. Where it is based on personal observation of events and circumstances of daily life, it is not technically hearsay. State v. Marshall, 137 Mo. 463, 39 S. W. 63. For the same practical reasons a witness is permitted to testify to the age of members of his family. Hancock v. Supreme Council Catholic Benevolent Legion, 69 N. J. L. 308, 55 Atl. 246. Contra, Rogers v. De Bardeleben Coal & Iron Co., 97 Ala. 154, 12 So. 81. It is submitted that the same considerations apply to testimony as to race. It seems a preferable rule to admit it subject to the discretion of the court in determining adequacy of knowledge and means of observation, rather than to exclude it generally on the ground of hearsay. If it is not admissible as a statement of the witness's own knowledge, it could probably be admitted, under proper conditions, as a statement of the family reputation. See 2 WIGMORE, EVIDENCE, §§ 1500, 1502. But cf. Wright v. Commonwealth, 72 S. W. 340. And some courts have allowed it to be shown by proof of general reputation in the neighborhood. Vaughan v. Phebe, Mart. & Y. (Tenn.) 4; Gilliand v. Board of Education, 141 N. C. 482, 54 S. E. 413. See 2 WIGMORE, EVIDENCE, § 1605.

RIGHTS OF CREDITORS

CONVEYANCE OF

FRAUDULENT CONVEYANCES PARTNERSHIP BUSINESS FRAUDULENT AS TO CREDITORS OF ONE PARTNER. The business of a partnership composed of two members was by them conveyed to the defendant corporation with intent to defeat the creditors of one of the partners, who afterwards was adjudicated a bankrupt. The fraudulent nature of the conveyance was known to all the parties to it. Held, that the conveyance may be set aside by the trustee of the bankrupt partner. Trustee of Gonville v. Patent Caramel Co., 105 L. T. 831 (Eng., K. B. D. in Bankruptcy, Nov. 14, 1911).

565

A conveyance made with intent to defraud creditors to one having notice is The fact that the debtor voidable by the creditors. STAT. 13 ELIZ. c. 5. joins with a solvent person in making the conveyance does not render it immune from attack. Campbell v. Davis, 85 Ala. 56, 4 So. 140. But though voidable by creditors, the conveyance is otherwise valid. So it has been held that the grantee is entitled to any surplus remaining after the satisfaction of the claims of the creditors. Burtch v. Elliott, 3 Ind. 99; Allen v. Trustees of Ashley School Fund, 102 Mass. 262. And a conveyance by co-tenants has been held voidable only as to the share of the co-tenant whose creditors it was intended to defeat. Campbell v. Davis, supra. In England a partnership is not recognized by the law as an entity distinct from the members composing it; the partners are, collectively, the firm. See POLLOCK, LAW OF PARTNERSHIP, 6 ed., 20-21. the principal case, then, the conveyance should be treated as voidable except in so far as it conveyed the interest of the non-bankrupt partner. This interest should remain in the grantee.

In

- RIGHTS OF HUSBAND AGAINST WIFE AND IN HER HUSBAND AND WIFE PROPERTY RIGHT OF HUSBAND TO ALIMONY APART FROM DIVORCE PROCEEDINGS. The plaintiff, being indigent and unable to support himself, prayed for a decree requiring his wife, who owned considerable property, to pay him alimony. Held, that the decree be granted. Hagert v. Hagert, 133 N. W. 1035 (N. D.). See NOTES, p. 556.

CONTROL BY CONGRESS

EMPLOYER'S LIABIL

INTERSTATE COMMERCE A locomotive fireman, while engaged in interstate commerce ITY FOR DEATH. in New York, was killed through the negligence of the railroad company. His widow, as administratrix, sued the company under the Federal Employers' Liability Act, and accepted the defendant's offer of judgment. The intestate's father claimed one-half of the amount recovered under the New York Statute of Distribution. Held, that he is entitled to it. Matter of Taylor, 204 N. Y. 135. The majority of the court hold that in so far as the federal act attempts to give an action for death to the administratrix it is unconstitutional, on the ground that Congress's power to regulate interstate commerce with respect to any particular employee must end with his death. That Congress has the power to regulate the liability of master to servant in interstate commerce can no longer be denied. Mondou v. New York, N. H. & H. R. Co., 32 Sup. Ct. 169. The denial, in the Safety Appliance Act, of the assumption of risk doctrine has been held to apply to an action for death. Mobile, J. & K. C. R. Co. v. Bromberg, 141 Ala. 258, 37 So. 395. There the power of Congress has certainly been effective beyond the death of the employee. If Congress can render the railroad liable at all it must be able to specify to whom. Liability for injuries not causing death, and no liability for fatal ones, would be a singular result. At all events, inasmuch as the original recovery was under the federal statute, the distribution should be under it also. Matter of Degaramo, 86 Hun (N. Y.) 390, 33 N. Y. Supp. 502. See Dennick v. Railroad Co., 103 U. S. 11, 20.

CONTROL BY CONGRESS

FEDERAL EMPLOYERS' INTERSTATE COMMERCE The Federal Employers' Liability Act of April 22, LIABILITY ACT OF 1908. every common carrier by railroad, while engaging in 1908, provides that " commerce between any of the states . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for such injury. . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . ." Held, that the statute is constitutional, though it applies to the negligence of employees not engaged in interstate commerce. Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169. See NOTES, p. 548.

INTERSTATE COMMERCE WHAT CONSTITUTES INTERSTATE COMMERCE CONSIGNEE ACTING AS PRINCIPAL IN MAKING DELIVERIES. The plaintiff took orders for automobiles in a restricted selling district in Pennsylvania, receiving cash deposits, which it remitted to the manufacturer in New York. On paying drafts for the balance of the list price, less a discount, the plaintiff received automobiles consigned to it from the factory and delivered them to the purchasers on receipt of payment. The plaintiff was taxed on these sales under a Pennsylvania statute. Held, that the tax is not invalid as a restraint on interstate commerce. Banker Brothers Co. v. Commonwealth of Pennsylvania, 32 Sup. Ct. 38.

In 24 HARV. L. REV. 324, it was submitted that the original-package doctrine only furnishes one test of whether a shipment is terminated. In this case the court properly makes that the important question and decides it by finding that the consignee acted as a principal in making deliveries and not as the agent in a continuous shipment.

JUDGMENTS COLLATERAL ATTACK — PRESUMPTION OF JURISDICTION WHERE SERVICE IS BY PUBLICATION. - In an action to quiet title to land the defendant set up a sheriff's deed under a decree of foreclosure against the plaintiff's grantor, who was a non-resident. Except for a recital in the decree that due notice of the action was given the defendants, the record failed to show any service of summons or service by publication. Held, that the decree is not a bar to the plaintiff's action. Duval v. Johnson, 133 N. W. 1125 (Neb.).

Where the record shows want of jurisdiction on its face, a judgment may be attacked collaterally. O'Malley v. Fricke, 104 Wis. 280, 80 N. W. 436. Where the record does not affirmatively show lack of jurisdiction, there will ordinarily be at least a presumption in favor of the validity of a judgment of a court of general jurisdiction. Gulickson v. Bodkin, 78 Minn. 33, 80 N. W. 783. It has, however, been held that where there is service by publication the record must affirmatively show that the statute authorizing service by publication has been complied with; since this is a method of acquiring jurisdiction not in accordance with common-law proceedings. Galpin v. Page, 18 Wall. (U. S.) 350; Furgeson v. Jones, 17 Or. 204, 20 Pac. 842. There seems to be no reason on principle why the presumption with regard to the validity of a judgment of a court of general jurisdiction should vary with the method of service. This distinction has not met with general favor. Hahn v. Kelly, 34 Cal. 391; Adams v. Cowles, 95 Mo. 501, 8 S. W. 711. And the Supreme Court of the United States, which decided the leading case in support of the distinction, has since practically refused to follow it. Applegate v. Lexington, etc. Mining Co., 117 U. S. 255, 6 Sup. Ct. 742.

DAMAGES

LIBEL AND SLANDER MITIGATION OF DAMAGES; TRuth of PART OF ARTICLE NOT DECLARED ON. Defendant published an article charging plaintiff with inhuman treatment towards his wife and also adultery. The complaint set up only the part referring to the adultery. The defendant set up in answer the entire article and offered to prove the truth of the part alleging cruelty. Held, that such a defense is properly pleaded in mitigation of damages. Osterheld v. Star Co., 146 N. Y. App. Div. 388, 131 N. Y. Supp. 247. The plaintiff's specific acts of misconduct may not be shown to reduce damages for a libel. Scott v. Sampson, 8 Q. B. D. 491. Two reasons for the decision in the principal case suggest themselves. First, when injury to reputation exists, injury to feelings is also considered as deserving redress. Logically, only the suffering caused by social opprobrium merits compensation; but this distinction has not been made, and anguish due to the insult's direct effect is included. Rea v. Harrington, 58 Vt. 181, 2 Atl. 475; Zeliff v. Jennings, 61 Tex. 458. But see I WIGMORE, EVIDENCE, § 209. In actions for indecent assault

and analogous actions, where this last is an element of damage, specific acts may be admitted to show that the plaintiff could not have been much offended. Gulerette v. McKinley, 27 Hun (N. Y.) 320. See I WIGMORE, EVIDENCE, §§ 210-213. Contra, Gore v. Curtis, 81 Me. 403, 17 Atl. 314. This reasoning has been applied to a libel on chastity. Smith v. Matthews, 21 N. Y. Misc. 150, 47 N. Y. Supp. 96. But in all these cases of offended virtue the specific conduct shown was impropriety; and the extension to collateral matters in the principal case appears dangerous. Cf. Barton v. Bruley, 119 Wis. 326, 96 N. W. 815. However, the case seems correct on the ground that where, as in New York, exemplary damages are allowed, truth of some statements in a libel should be admissible to rebut malice. Contra, Fisher v. Patterson, 14 Oh. 418. This has been held in the indistinguishable case where a separable part only of the libel declared on was submitted to the jury. Holmes v. Jones, 147 N. Y. 59, 41 N. E. 409. But cf. Gressman v. Morning Journal Association, 197 N. Y. 474, 90 N. E. 1131.

LIENS LOSS OF LIEN BY REMOVAL OF FIXTURES. The defendant purchased a house and lot with notice of a vendor's lien thereon, and removed the house to another lot owned by the defendant, without the knowledge of the lienholder. Held, that the lienholder may foreclose on the house. Bowden v. Bridgman, 141 S. W. 1043 (Tex., Ct. Civ. App.).

Wrongfully attaching a chattel of another to realty has been held by some courts not to divest the title to the chattel at law. McDaniel v. Lipp, 41 Neb. 713, 60 N. W. 81; Eisenhauer v. Quinn, 36 Mont. 368, 93 Pac. 38. But by the orthodox view the owner of the realty acquires legal title to the fixture. Peirce v. Goddard, 22 Pick. (Mass.) 559. The tortfeasee may sue only for damages. Reese v. Jared, 15 Ind. 142. The holder of a lien on a chattel would have no greater right that the lien be preserved at law. Clark v. Reyburn, 1 Kan. 281. But in equity the tortfeasor should not profit by his wrongful act. Dakota Land & Trust Co. v. Parmelee, 5 S. D. 341, 58 N. W. 811. All authorities agree that the lienholder may enjoin the removal of fixtures. Williams v. Chicago Exhibition Co., 188 Ill. 19, 58 N. E. 611. If the fixture is simply removed without the knowledge or consent of the lienholder, the lien should not be destroyed. Turner v. Mebane, 110 N. C. 413, 14 S. E. 974. See Hutchins v. King, 1 Wall. (U. S.) 53, 60. Contra, Buckout v. Swift, 27 Cal. 433. Even when the removed fixture is annexed to other realty, the lien should not be lost as against anyone having notice or not paying value. Hamlin v. Parsons, 12 Minn. 108; Partridge v. Hemenway, 89 Mich. 454, 50 N. W. 1084. But relief has been denied when the lienholder did not show that the remaining security was inadequate. Harris v. Bannon, 78 Ky. 568. Following the view that the preservation of the lien is an equitable matter, it is not enforceable against a bona fide purchaser. Verner v. Betz, 46 N. J. Eq. 256, 19 Atl. 206.

LIMITATION OF ACTIONS NATURE AND CONSTRUCTION OF STATUTE OPERATION AGAINST PERSON UNDER DISABILITY. While the plaintiff was an infant the defendant occupied his land adversely for seven years, the period of the statute of limitations. The defendant then abandoned it, but subsequently regained possession. The plaintiff became of age and instituted ejectment after the three years allowed by the statute for bringing suit after removal of disabilities, but within seven years after the defendant regained possession. Held, that the action is barred by the statute. Dewey v. Sewanee Fuel & Iron Co., 191 Fed. 450 (Circ. Ct., M. D. Tenn.).

The language of many cases is that the statute does not run against disabled parties. See Little v. Downing, 37 N. H. 355, 368; Fowler v. Pritchard, 148 Ala. 261, 271, 41 So. 667, 670. Others more accurately say that the statute