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fendant. Held, that the defendant is entitled to a new trial. People v. Kinney, 202 N. Y. 389.

A trial judge is properly allowed a wide discretion in regard to his conduct during a trial. People v. Smith, 114 N. Y. App. Div. 513. But a party prejudiced by abuse of this discretion is not without remedy. Thus it is reversible error for the trial judge to make prejudicial remarks as to the argument or conduct of counsel, or as to the character or credibility of a witness. People v. O'Hare, 124 Mich. 515; Wilson v. Territory of Oklahoma, 9 Okl. 331; People v. Converse, 157 Mich. 29. So also is participation by the judge in the examination of witnesses in such a way as to indicate an advocacy of either side. Adler v. United States, 182 Fed. 464. A succession of prejudicial remarks by the court, no one of which might be sufficient to reverse the judgment, may together constitute reversible error. State v. Coss, 53 Or. 462. And in general, when the conduct of the judge is such that it may have prevented the trial from being fair and impartial, the granting of a new trial seems proper. Wheeler v. Wallace, 53 Mich. 355; Green v. State, 53 So. 415 (Miss.). Under the particular circumstances of the principal case, this result is provided for by statute. N. Y. CODE CR. PROC., § 527.

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PLEADING ONE PERSONAL INJURY CAUSED BY SEVERAL NEGLIGENT ACTS AS MORE THAN ONE CAUSE OF ACTION. The plaintiff declared on a single personal injury caused by several acts of negligence of the defendant. The defendant demurred on the ground of duplicity. Held, that the demurrer should be sustained. Ferguson v. National Shoemakers, 79 Atl. 469 (Me.).

This case is a logical result of the theory that in an action for negligence the negligent act, and not the damage caused by it, is the cause of action. For a criticism of the theory, see 24 HARV. L. REV. 492.

QUASI-CONTRACTS

RECOVERY FOR BENEFITS CONFERRED WITHOUT CONTRACT RECOVERY FOR REPAIRS UPON ROADWAY. - The defendants were the successors in title of a canal company which was under a statutory duty to repair a certain road. Upon the defendant's refusal to act, the plaintiffs, the local highway authority, repaired the road and sued for the expenses. Held, that the plaintiffs are volunteers and cannot recover. Macclesfield Corporation v. The Great Central Ry., [1911] 2 K. B. 528. See NOTES, p. 77.

RAILROADS

LIABILITY TO TRESPASSERS - WHO ARE TRESPASSERS. Under a working agreement between the defendant and a connecting railroad, the latter used the defendant's tracks. The plaintiff boarded a train of the connecting railroad without right, and was injured in a collision caused by the negligence of the defendant's operatives. Held, that he cannot recover. Grand Trunk Ry. Co. of Canada v. Barnett, 27 T. L. R. 359 (Privy Council, March 28, 1911).

If the plaintiff was a trespasser toward the defendant as well as the other company, he cannot recover, since there was no evidence that the defendant was wantonly reckless. Grand Trunk Ry. Co. v. Flagg, 156 Fed. 359. His status with respect to the defendant depends largely on the agreement between the companies, which, not being in evidence, the court infers to be a grant of a right of way by the defendant to the other company and all persons lawfully claiming under it. This inference seems reasonable and excludes the plaintiff from any right to be on the premises, rendering him a trespasser and subject to the above rule as to recovery for injuries. Where two railroads use the same right of way, each is liable for its negligence to both the passengers and employees of the other. Eddy v. Letcher, 57 Fed. 115; Chicago, etc. Ry. Co. v. Martin, 59 Kan. 437; Grand Trunk Ry. of Canada v. Huard, 36 Can. Supr. Ct. 655. The principal case rightly limits this rule to cases where the injured party was rightfully on the property.

RESCISSION RESCISSION FOR FRAUD OR MISTAKE·

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MISREPRESENTATION AS TO FOREIGN LAW OF INCORPORATION. - The agent of a corporation induced subscription to its stock by a false representation that it was secured by the law of the state in which the company was incorporated. The subscriber was a resident of another state. Held, that the subscriber is not entitled to rescind. Grone v. Economic Life Ins. Co., 80 Atl. 809 (Del., Ct. Ch.).

Generally, a subscriber for stock in a corporation may rescind if his subscription was induced by misrepresentation, whether fraudulent or honest. River Silver Mining Co. v. Smith, L. R. 4 H. L. 64; Maine v. Midland Investment Co., 132 Ia. 272. But where the misrepresentation concerns the laws governing the corporation, the courts usually deny the subscriber a right of rescission. The cases proceed on two theories. Where the misrepresentation is as to the terms of a general incorporation law, it is held that this cannot avail the subscriber, being a representation of the law, of which he is chargeable with notice. Russell v. Alabama Midland Ry., 94 Ga. 510. Cf. Peters v. Lincoln & N. W. R. Co., 14 Fed. 319. This theory should not defeat the subscriber in the principal case, since a misrepresentation as to foreign law should be treated as a misrepresentation of fact. See Upton v. Englehart, Fed. Cas., No. 16,800. But where the misrepresentation is as to the terms of a special charter, the courts have taken the broader ground that the subscriber is chargeable with knowledge of the paramount law of the corporation of which he is to become a member. Ellison v. Mobile & Ohio R. Co., 36 Miss. 572. See Wight v. Shelby R. Co., 16 B. Mon. (Ky.) 4, 6. This theory sustains the principal case, and might well have been a short ground for deciding many cases in deceit, where the plaintiff was barred because the misrepresentation was honestly made. See Derry v. Peek, 14 App. Cas. 337.

RESTRAINT OF TRADE SHERMAN ANTI-TRUST LAW FORM OF COMBINATION. - The United States brought suit for the dissolution of the Standard Oil Company of New Jersey, a holding company, as a combination in restraint of interstate trade under the Sherman Anti-Trust Law. The evidence showed a suppression of competition by the combination by unfair methods. Held, that the defendant constitutes an illegal combination under §§ 1 and 2 of the Act. Standard Oil Co. v. United States, 221 U. S. 1.

The United States brought suit for the dissolution of the American Tobacco Company as a combination in restraint of interstate trade under the Sherman Anti-Trust Law. The control of the primary defendant over its subsidiary companies was effected partly by stock ownership and partly by the ownership of the plants of those companies. The combination had used unfair methods to suppress competition and to attain monopoly control. Held, that the defendant constitutes an illegal combination under §§ 1 and 2 of the Act. United States v. American Tobacco Co., 221 U. S. 106. See pp. 31-58, and NOTES, p. 71.

RESTRICTIONS AND RESTRICTIVE AGREEMENTS AS TO USE OF PROPERTY EXTINGUISHMENT OF RESTRICTION BY SURRENDER TO PARTY WITHOUT NOTICE. - A. had leasehold interests in two neighboring shops, in one of which he carried on the trade of a pork butcher, and in the other that of a general butcher. A. sold his lease and business in the latter to the plaintiff, covenanting not to engage in the trade of general butcher within three miles. The defendant, who had notice of this covenant, decided to buy A.'s business; so A. surrendered his lease in the first shop to the landlord, who had no notice of the covenant. The defendant took out a new lease of the premises and there carried on the business of general butcher, from continuing which the plaintiff sought to enjoin him. Held, that the restriction is extinguished. Wilkes v. Spooner, [1911] 2 K. B. 473 (K. B. D., C. A.).

The judgment of the King's Bench Division, which enjoined the defendant

from continuing business, is rightly reversed by the principal case, on the ground that the covenant no longer attached to the land after the surrender of the premises to the landlord, who had no notice of the restriction. For a discussion of the principles involved, see 24 HARV. L. Rev. 574.

IMPLIED WARRANTIES

SALES REASONABLE FITNESS FOR PARTICULAR PURPOSE. - The defendant bought some cloth of the plaintiff who knew it was to be used for making clothes. The plaintiff sued for the balance of the price which the defendant refused to pay because the cloth was unfit for the intended purpose. Held, that there was an implied warranty of the cloth's availability for use in making clothes. Rhodesia Mfg. Co. v. Tombacher, 129 N. Y. Supp. 420 (Sup. Ct., App. Term). See NOTES, p. 75.

TAXATION GENERAL LIMITATIONS ON THE TAXING POWER-CONSTITUTIONALITY OF SALE OF TAX LIENS. A statute authorized the sale of tax liens by a city to private persons, and gave the purchaser the right to enforce these liens by foreclosure proceedings. Held, that the statute is constitutional. Gautier v. Ditmar, 45 N. Y. L. J. 941 (N. Y., App. Div., May, 1911).

As there are practically no specific constitutional restrictions on taxation in New York, the present statute can only be unconstitutional if it is an improper delegation of power. If, like the old French and Roman systems of taxfarming, it included the assessment of taxes, there would probably be such delegation. See 2 COOLEY, TAXATION, 3 ed., 831. But tax-collecting requires little discretion, and the office, in contrast to other public offices, has at times been sold to the highest bidder. Alvord v. Collin, 20 Pick. (Mass.) 418. In the absence of statute a tax-lien is not transferable. Hinchman v. Morris, 29 W. Va. 673. But a party who has paid the taxes to protect an interest which he has in the property often enforces a very similar lien. Farmer v. Ward, 75 N. J. Eq. 33. The purchaser of land at an invalid tax sale may be given such a lien by statute, and in some states the statute recognizes that this lien is actually transferred to him from the state. Arn v. Hoppin, 25 Kan. 707; IND., ACTS OF 1891, c. XCIX, § 214; Cole v. Gray, 139 Ind. 396. In fact, in Georgia, since the statute of 1872, tax executions have been sold to the highest bidder, and the constitutionality of the sales has not even been questioned. CODE OF GA., 1911, § 1145.

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TAXATION PROPERTY SUBJECT TO TAXATION - TAXATION OF FOREIGN CORPORATIONS ENGAGED IN INTERSTATE COMMERCE. - Under a constitutional provision, a Minnesota statute assessed on an express company, organized in New York and engaged in interstate commerce, "a tax of six per cent upon its gross receipts for business done between points within this state, in lieu of all taxes upon its property." Held, that this is not a regulation of interstate commerce. State v. United States Express Co., 131 N. W. 489 (Minn.).

The principal case presents an example of a common, though unscientific, method of taxing foreign corporations engaged in interstate commerce. Though levied in terms upon an unpermissible object of taxation, it is regarded as, in substance, a tax upon permissible objects. Since no state can regulate interstate commerce, no foreign corporation can be taxed for the privilege of doing interstate business in the state. Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160. But see Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 227. So an "occupation tax" or "franchise tax" is not permissible. Galveston, Harrisburg, &San Antonio Ry. Co. v. State of Texas, 210 U. S. 217. But all the property of the corporation within the state, both tangible and intangible, may properly be taxed by the state. Adams Express Co. v. Ohio State Auditor, 166 U. S. 185. See BEALE, FOREIGN CORPORATIONS, § 741. The substance and not the form of the tax is material. Postal Tel. Cable Co. v. Adams, 155 U. S. 688. Cf. Postal Tel. Cable Co. v. City of Richmond, 99 Va. 102, 108. And this method

of taxing in terms of gross receipts, as a means of reaching the intangible property of the corporation within the state, has frequently been declared constitutional. Pacific Express Co. v. Seibert, 142 U. S. 339; Postal Tel. Cable Co. v. Adams, supra. But of course the court must be satisfied that it is a bonâ fide taxation of property, and not a tax on the gross receipts as such.

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TORTS INTERFERENCE WITH BUSINESS OR OCCUPATION LIABILITY FOR CONSTRAINING PLAINTIFF BY THREAT OF WRONG TO BREAK A CONTRACT. The defendant, an ice manufacturer, at a time of great scarcity in the market threatened to break a contract to supply ice to the plaintiff, a wholesale and retail dealer, unless the plaintiff would break its contract to supply ice to a third person. The defendant's motive was a desire to sell to this third person. The plaintiff broke the contract with the third person, and the latter recovered damages from it. Held, that the plaintiff has a cause of action against the defendant. Sumwalt Ice Co. v. Knickerbocker Ice Co., 80 Atl. 48 (Md.).

By the weight of authority, the making of a contract confers upon each party thereto a certain right in rem, so that either party has a right of action against a third person who without justification procures a breach of the contract by the other party. Lumley v. Gye, 2 E. & B. 216; Heath v. American Book Co., 97 Fed. 533. There would seem to be no logical reason why a contracting party's rights are not equally infringed when he himself is coerced to break the contract. Lynch v. Quincy, 11 HARV. L. REV. 469. Although in the principal case the plaintiff's cause of action must arise in a sense from his own wrong, in many cases the parties have been held not to be in pari delicto where they were not in equal degrees of guilt or where one party had exercised undue pressure upon the other. Gray v. Boston Gas Light Co., 114 Mass. 149; County of La Salle v. Simmons, 10 Ill. 513. Since the court could find that "the act of the plaintiff was not voluntary," the case may be regarded as a novel but logical and justifiable extension of the doctrine of liability for wrongful interference with the contract relation.

WITNESSES - PRIVILEGE AGAINST SELF-INCRIMINATION PRIVILEGE OF CORPORATE OFFICER ORDERED TO PRODUCE INCRIMINATING BOoks. - In an investigation by a federal grand jury, a subpæna duces tecum was issued to a corporation ordering it to produce certain books. These books were kept by the president, who refused to produce them on the ground that they would incriminate him personally. Held, that the constitutional privilege against self-incrimination does not justify such a refusal. Wilson v. United States, 31 Sup. Ct. 538; Dreier v. United States, id. 550.

There are authorities against these cases. Ex parte Chapman, 153 Fed. 371; Rex v. Cornelius, 2 Str. 1210; Rex v. Purnell, 1 W. Bl. 36. They seem, however, to be correctly decided. It is well settled that the constitutional right not to be a witness against oneself may be waived by testifying on the subject matter involved. Fitzpatrick v. United States, 178 U. S. 304; State v. Nichols, 29 Minn. 357. So one who keeps public or quasi-public records required by law waives his privilege against self-incrimination to such an extent that he may not lawfully refuse to produce them. Bradshaw v. Murphy, 7 C. & P. 612; People v. Coombs, 158 N. Y. 532; State v. Donovan, 10 N. D. 203. The right of the state to create such situations, demanding by implication a waiver of this constitutional protection, has been upheld as constitutional within wide limits. State v. Davis, 68 W. Va. 142. But cf. People ex rel. Ferguson v. Reardon, 197 N. Y. 236; People v. Rosenheimer, 128 N. Y. Supp. 1093. By virtue of the visitatorial power reserved to the state and federal government, a corporation has no privilege against self-incrimination, and, as far as the corporate entity itself is concerned, must produce evidence against itself when so ordered.

Hale v. Henkel, 201 U. S. 43, 74; State v. Standard Oil Co., 218 Mo. 1. So one who becomes an officer of a corporation must be held to waive his privilege to this extent, that he must disclose such facts and produce such evidence as the corporation is required to disclose or produce through him as its proper agent. But see 3 WIGMORE, EVIDENCE, § 2259.

BOOK REVIEWS.

THE SPECIAL LAW GOVERNING PUBLIC SERVICE CORPORATIONS AND ALL OTHERS ENGAGED IN PUBLIC EMPLOYMENT. By Bruce Wyman, A.M., LL.B., Professor of Law in Harvard University. New York: Baker, Voorhis and Company. 1911. In two volumes. pp. ccxvii, xxvi, 1517. After the great American text-books of the middle of the nineteenth century, which in more than one case rose to a position of quasi-authority and in many cases contributed not a little to the development of the law, a period of digest text-books set in, in which servile following of the letter of judicial decisions was taken to be a merit and it was assumed that a bare exposition of the points decided or a formulation of such points in abstract propositions was statement of "the law," and hence was the function of the practical lawwriter. While these ideas prevailed, the boast of the careful writer was that he had cited all the cases; as to other matters, he could say, with the prologue to Alfred's Laws, "I durst not venture to set down in writing much of my own." The period was not one of juristic sterility, as the acute and well-reasoned discussions in legal periodicals of the time demonstrate. Until the mechanics of digest-making had been brought to what it is now, the text-book was needed to do the work of an index to the reports. Today, no text-book can compare with the digests and cyclopedias in this service, if for no other reason, because there is no way of keeping it continually up to date. In consequence textbooks must be mere elementary sketches for students, or else must lead and guide as did the classical works of an earlier period, or they are not worth while. Professor Wigmore's treatise on Evidence has shown us that the time for texts which shall shape the law, and not merely mould headnotes or digest paragraphs into literary form, has by no means gone by. The influence which that book is exerting before our eyes witnesses that the law schools may do no less for the law today than they did in the classical days of Kent and Story and Greenleaf. Indeed, even more than that time, the present is a period of legal development. Professor Wyman is to be congratulated, therefore, upon the opportunity of expounding a great branch of the law, while its details are still formative and before its main outlines have rigidified, at a time when juristic development of the materials of the common law on a large scale has regained its place in our legal literature.

As the first to treat of the law of public service companies as a unit, the author has had the opportunities and has had to meet the difficulties of the pioneer. On the one hand, he has had free scope for analysis and for the working out and development of a consistent theory of his subject. On the other hand, in the construction and application of the theory, he has had to take many steps in the dark, or at least in what the common-law lawyer is likely to consider the dark—namely, the light of pure juristic theory. But the time has come for many steps in that light in more than one department of our law.

Obviously the older method of calling this or that a common carrier by analogy, so that the test of a public calling might be how far it could be put in the category of common carrier without too violent straining of fiction, was

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