That there was in the principal case a publication of defamatory words is not doubted, but it is by no means clear that there was a libel at all as distinguished from a slander. Lord Esher defines the publication of a libel as "The making known the defamatory matter after it has been written. . . ." It involves the idea of a manuscript written by the defendant or in his hands, and through his fault communicated to a person other than the one defamed. Odgers, Libel and Slander, 3d ed., 170, 171. In the principal case, however, these requirements are not fulfilled. When the words were uttered, no writing was in existence. That was only created subsequently, and then not by the defendant, but by the very person to whom it is contended the libel was published. That there cannot be a publication of a writing that has no existence is obvious. It follows that there was a publication by the defendant of words merely, and that the action should have been for slander and not for libel. Odgers, Libel and Slander, 3d ed., 174.

The distinction suggested is technical but it leads to important practical results. A libel is actionable without proof of special damage, but a slander is not unless the words are actionable per se. Accordingly, if the proper action is for libel the employer must be held in every case, whereas if for slander, he would rarely if ever be liable, unless the words were actionable per se, since he is not as a rule liable for repetitions. Shurtleff v. Parker, 130 Mass. 293. Sound public policy demands the latter result. If the law allows a communication to be made it seems sensible that it should be made according to the usual method of transacting business, and the welfare of the business community requires that acts so done shall not become the basis of litigation. On the other hand, it is urged that business necessity must not be made an excuse for licensed defamation. The observance of the distinction between libel and slander here suggested will result in a satisfactory compromise between these extremes. The liability of employers is limited to cases in which ordinary good taste and often common decency would forbid indirect communication, while the general public suffers no undue hardship, since in aggravated cases the action for slander still remains.

RECENT CASES.

ADMINISTRATIVE LAW-Contracts - Bond of IndemNITY FOR NOT LEVYING EXECUTION. A sheriff was in honest doubt as to whether a fieri facias, valid on its face, was issued within the time allowed by law. The defendants gave the sheriff a bond of indemnity with condition to save him harmless in not making the levy. Held, that the bond was valid. Ray v. McDevitt, 85 N. W. Rep. 1086 (Mich.).

The current of authority supports the view that an instrument is void if given to indemnify an officer of the court against loss resulting from failure to execute process, which is on its face such as the court could legally have issued. Denson v. Sledge, 2 Dev. Law (N. C.) 136; contra, Randle v. Harris, 6 Yerg. (Tenn.) 508. In such cases, good faith of the officer has generally been held immaterial. Harrington v. Crawford, 136 Mo. 467; contra, Joyce v. Williams, 1 Tayl. (N. C.) 27. To enable courts to enforce their judgments, the law protects an officer in executing a writ good on its face. FREEMAN, EXECUTIONS, 3d ed., § 101. When an officer is thus protected, a contract to save him harmless in not obeying the writ encourages disobedi ence of the order of the court, and therefore is clearly against the policy of the law. A contract to indemnify the officer against the consequences of executing a similar

writ stands on a different footing, and may be valid if made with bona fide intention of securing a legal right. Placket v. Gresham, 3 Salk. 75.

ADMIRALTY SALVAGE LIABILITY OF PERSONS BEnefited.— Government stores were shipped on a chartered vessel, subject to stipulations under which the charterers were responsible for their safe delivery. The vessel came into collision and required salvage assistance. The salvors, after refusal of compensation by the government, brought an action in personam against the charterers. Held, that the action lies. The Cargo ex Port Victor, [1901] P. D. 243.

The decision represents the tendency to follow equitable rather than common-law principles in the administration of maritime law. The Juliana, 2 Dods. 504, 520, 521. The salvors, having neglected to pursue their action in rem against the stores, and being unable to proceed in personam against the government, would lose their reward unless enabled to reach the defendants; and the latter, although not holding the legal title, have enjoyed the benefit of the salvage services by reason of their responsibility for the safety of the property salved. The decision, in holding that liability to the salvors' claim is not confined to the legal owners, but extends to persons interested in the preservation of the property, follows the case of The Five Steel Barges, 15 P. D. 142. Difficulty, however, may be found in defining interests liable for salvage services. A Scottish decision has allowed salvage against a common carrier. Duncan v. The Dundee, etc., Co., 15 Scot. L. R. 429. Insurers and bottomry bondholders would seem to be equally liable, while the cases of mortgagees and lienholders may properly be distinguished. No decisions except those cited have been found.

RATIFICATION — UNDISCLOSED PRINCIPAL. ·

One Roberts, intending

AGENCYto act in behalf of the defendants, but without their authority and without professing to act as an agent, entered into a contract with the plaintiff. Held, that the defendants could not ratify Roberts's act, so as to become privy to the contract. Keighley, Maxsted & Co. v. Durant, [1901] A. C. 240. See NOTES, p. 221.

BANKRUPTCY - PREFERENCES- - SURRENDER A CONDITION OF PROVING CLAIM. - In the usual course of business, creditors received payments from an insolvent debtor, against whom a petition in bankruptcy was filed within the four months succeeding. Held, that under the act of 1898 these payments must be surrendered before proof for the remainder of the creditors' claim can be allowed. Pirie v. Chicago Title & Trust Co., 21 Sup. Ct. Rep. 906.

This case, in which the Supreme Court follows a majority of the previous decisions of the lower courts, is noteworthy as marking a departure in bankruptcy law. In re Ratcliff, 107 Fed. Rep. 80; BRANDENBURG, BANKR., 2d ed., 520. The law of preferences began with Lord Mansfield's decisions holding certain payments voidable by a bankrupt's assignees as fraudulent and illegal. The novel doctrine was strictly limited by English courts and slowly extended by Parliament. LOWELL, BANKR., ch. v. Preferences received by a creditor having no reasonable cause to believe a preference was intended have probably never been illegal in England, and the surrender of legal preferences never a condition of proving remaining claims. See In re Hall, 2 N. B. N. Rep. 1126. Until the present act the law in the United States relating to preferences was in this respect substantially like contemporaneous English law. The statute of 1898 provides (2 57 g) that “ The claims of creditors . . . shall not be allowed unless . . . [they] surrender their preferences." This unambiguous clause seems to cover preferences received as payments in the usual course of business. Although the result is unsatisfactory in practice the defect in the act is properly one for the legislature to remedy.

BANKRUPTCY PROPERTY PASSING TO ASSIGNEES CHOSES IN ACTION. — In an action for trespass to land and conversion of goods the principal damages claimed were for personal annoyance. On motion made before the jury was sworn, the trial judge ordered the action stayed, because the plaintiff had been adjudged a bankrupt after the suit was begun. Held, that the ruling was incorrect, on the ground that such an action does not pass to the plaintiff's assignees in bankruptcy. Rose v. Bucket, 17 T. L. R. 544 (C. A.). See NOTES, p. 229.

BANKRUPTCY ·

PROVABLE CLAIMS - CONTINGENT LIABILITIES. — Held, that the present value of an annuity, calculated by life-tables, is a claim provable in bankruptcy. Cobb v. Overman, 109 Fed. Rep. 65 (C. C. A., Fourth Circ.).

A petition in bankruptcy against an indorser of a promissory note was filed before the note matured. Held, that the holder's claim against the indorser is provable in bankruptcy. Moch v. Market St. Nat. Bank, 107 Fed. Rep. 897 (C. C. A., Third Circ.).

Although modern bankruptcy legislation aims to discharge all liabilities save those excepted because of public policy, express provisions for proving all contingent claims capable of present valuation are omitted, perhaps inadvertently, from the act of 1898. The act therein differs from the acts of 1841 and of 1867, and from modern English statutes. See 14 HARV. Law Rev. 372. However, § 63a (4) of the act of 1898, providing that "debts. . may be proved. . . which are. founded upon an open account or upon a contract express or implied," if liberally interpreted would probably include most contingent liabilities. Unfortunately, clauses relating to provable claims have usually been construed very narrowly, frequent protests of judges and text-writers notwithstanding. Ex parte Groome, 1 Atk. 114; LOWELL, BANKR. §§ 164 et seq. But in the principal cases the federal courts are not bound directly by authority, as exactly the same question could not arise under the act of 1841 or of 1867, and apparently did not under the act of 1800. Cf. Marks v. Barker, 1 Wash. C. C. 178. Accordingly, although the cases depart from the former spirit of construing similar clauses, neither the result nor the process of reaching it is much to be regretted.

CAPACITY.

CONFLICT OF LAWS BILLS AND NOTES A married woman, domiciled in New Jersey and there incapable of contracting, made in that state a note payable to her husband for his accommodation, and he negotiated the note in New York, where the wife was under no incapacity. Held, that New York is the place of contract and its law applies. Thompson v. Taylor, 49 Atl. Rep. 544 (N. J., C. A.). Though the state of the English law is rather doubtful, in America it is well settled that the lex loci contractus controls capacity to contract. Bowles v. Fields, 78 Fed. Rep. 742; see 10 HARV. LAW REV. 168. There is some authority for applying the lex domicilii where the person whose capacity is in question, being in his own state, has procured the contract in another state by agent. Freeman's Appeal, 68 Conn. 533. According to the better opinion, however, these cases should form no exception to the general rule. Milliken v. Pratt, 125 Mass. 374. The result in the principal case may be reached in two ways. There is authority for holding that accommodation paper has no validity till negotiation. Whitten v. Hayden, 7 Allen, 407. The other view finds an obligation, but a defence of a strictly personal character in favor of the maker. Moore v. Baird, 30 Pa. St. 138, semble. If the note has no validity till negotiation, the principal case is clearly right. Under the second view, the note, by reason of the incapacity, is worthless till carried out of New Jersey, but the maker, having authorized a negotiation of it in New York, has in effect adopted it there by agent as her note and cannot rely on her New Jersey incapacity against a New York holder.

CONTRACTS-CONSTRUCTION -" ENGAGE AND EMPLOY.". - By a contract in writing the defendant “ agrees to engage and employ "the plaintiff for a fixed term as a representative salesman and "further agrees to remunerate him." The plaintiff was dismissed from service but the stipulated salary was offered him. Held, that no action lies for breach of the contract. Turner v. Sawdon, 49 W. Rep. 712 (Eng., C. A.).

No authority has been found exactly in point. "Employ" may mean either to provide actual work, or to retain in service without being bound to provide work, as when a family physician is employed at an annual salary. See Emmens v. Elderton, 4 H. L. Cas. 624. In either case the court's decision that the contract is fulfilled by mere payment would seem unsound. Ordinarily if wages are paid the employee would suffer no damages by dismissal, but this would not always be true. Thus, to employ an actor imports the obligation to give him opportunity to appear before the public. Fechter v. Montgomery, 33 Beav. 22, 26; Bunning v. Lyric Theatre, 71 L. J. Rep. 396. Similarly there might be cases where the loss of business connection with the employer would be a substantial injury. It would seem therefore that in the absence of evidence to the contrary the parties should be presumed to have used "employ" in accordance with the probable business understanding of the word, and that in severing all connection between himself and the plaintiff, the employer broke his

contract.

CORPORATIONS ULTRA VIRES - UNAUTHORIZED USE OF REAL ESTATE. — A corporation, empowered to erect and operate safety-deposit vaults and authorized to possess real estate necessary for the transaction of its business, built a fourteen-story

office-building which contained but one safety-deposit vault. Held, that the lessee of a room in the building could not plead ultra vires in an action to recover rent, since that plea can be interposed in a collateral proceeding only when the corporation is alleged to have performed an act which it was not under any circumstances authorized to perform. Rector v. Hartford Deposit Co., 60 N. E. Rep. 528 (Ill.).

The mere fact that a corporation has acquired more real estate than its charter authorizes does not annul its title. Fayette Land Co. v. Louisville, etc., R. R. Co., 93 Va. 274, 285 et seq.; Maliett v. Simpson, 94 N. C. 37. If its holdings, however, are clearly in excess of what is authorized by its charter, the state may interfere. People v. Pullman's, etc., Co., 175 Ill. 125, 142. The usurpation of unauthorized functions in the principal case would seem to be sufficient to justify such action by the state, and almost enough to fulfil the requirements laid down by the court for a collateral attack. The tendency of recent decisions, however, has been to limit the scope of the plea of ultra vires and to refuse on equitable grounds to allow it when one party has received the entire benefit of the contract and seeks to avoid assuming the burden. Bath Gaslight Co. v. Claffy, 151 N. Y. 24, 36. The result reached in the principal case seems clearly right, though this latter ground is perhaps a more satisfactory basis of decision than that given by the court.

CRIMINAL LAW

HUSBAND AND WIFE

PRESUMPTION OF MARITAL COERCION. A wife was indicted for carrying a weapon into a jail with intent to facilitate the escape of her husband. Held, that the offence was committed in the husband's presence and that the presumption of coercion thus arising is not rebutted by the circumstance of the husband's imprisonment. State v. Miller, 62 S. W. Rep. 692 (Mo.). With the modern development of the rights of married women all satisfactory reason for the presumption of marital coercion has disappeared, and courts have shown a commendable tendency to limit the rule, until little of it remains. STEPHEN, DIG. CRIM. LAW, 5th ed., 399; United States v. De Quilfeldt, 2 Cr. L. Mag. 211. So far from following this tendency, the principal case seems to be an unwarrantable extension of the doctrine. The intention was formed, the execution of the crime begun and all but completed outside the jail, and the fact that the defendant came into her husband's actual presence simultaneously with the completion of the crime can hardly justify the presumption in question. Quinlan v. People, 6 Parker, C. C. 1. If, on the other hand, the presumption is raised out of a constructive presence, it was for the jury to determine whether she was so far within the range of his control as to afford ground for presuming coercion. Commonwealth v. Daley, 148 Mass. 11. Even if coercion could be presumed, slight circumstances will rebut it, and the jury should have been allowed to decide whether the husband's helpless situation was sufficient to do so. Cf. Reg. v. Pollard, 8 C. & P. 553.

CRIMINAL LAW LARCENY - INNOCENT AGENT. The defendant pointed out and, without taking possession, purported to sell to an innocent purchaser, a horse which he did not own. Later the purchaser took possession of the horse in an adjoining county. Held, that the defendant was guilty of larceny in the latter county. Walls v. State, 63 S. W. Rep. 328 (Tex. Cr. App.).

Cases exactly parallel seem to be almost entirely confined to the state of Texas. On similar facts the same court formerly reached an opposite conclusion, holding that there was no larceny because possession of the property was not taken by the accused. Lott v. State, 20 Tex. Cr. App. 230. This case, however, was immediately overruled, and the doctrine of innocent agent rightly applied. Doss v. State, 21 Tex. Cr. App. 505. The fraudulent sale of another's property does not of itself make the seller guilty of larceny. Hardeman v. State, 12 Tex. Cr. App. 207. But as soon as actual possession is taken by the innocent purchaser the crime is complete. The taking by the purchaser is coupled with the animus furandi of the seller, for the law, to avoid the anomaly of a crime_without a criminal, makes the act of the innocent agent the act of the principal. I BISH. CRIM. LAW, 7th ed., § 651; People v. Adams, 3 Denio 190. Although the instances in which this doctrine has been applied to larceny are few, its applicability has long been recognized. 2 EAST, P. C. 555.

The

DIVORCE — Foreign Decree — DOMICIL — JURISDICTION. — In a suit for divorce the respondent set up a previous divorce obtained by himself in another state. court found from the evidence that he had not acquired such bona fide residence in the other state as to give its courts jurisdiction under the laws of that state. Held, that the foreign decree is not entitled to faith and credit. Bell v. Bell, 21 Sup. Ct. Rep. 551. See NOTES, p. 66.

EQUITY INJUNCTION PERSUADING ANOTHER TO BREAK HIS CONTRACT. — The plaintiff's apprentices were under contract not to connect themselves with trade unions. The defendant had persuaded some of them and was persuading others to join his union. Held, that the defendant was properly enjoined from further endeavoring to persuade the apprentices to join a union. Flaccus v. Smith, 48 Atl. Rep. 894 (Pa.).

The doctrine that a tort liability exists for persuading a third person to break a contract with the plaintiff, is probably established in England. Lumley v. Gye, 2 E. & B. 216. It has generally but not universally been accepted in this country. Bixby v. Dunlap, 56 N. H. 456; contra, Boyson v. Thorn, 98 Cal. 578. The principal decision is interesting as apparently the first application of the remedy of injunction to this kind of case, and will probably be followed in those jurisdictions where the doctrine of Lumley v. Gye, supra, prevails. The inadequacy of the legal remedy is the test that determines the right to an injunction. Mayor, etc., v. Gardner, 33 N. J. Eq. 622. The acts of the defendant constituted repeated injuries to the contract rights of the plaintiff, and to put him to his legal remedy would be to compel him to bring a number of small actions. The analogy is strong to repeated trespasses upon land, where equitable relief is allowed. Cf. Mills v. New Orleans Seed Co., 65 Miss. 391. Moreover the damage suffered by the plaintiff from the unionizing of his apprentices, while real and substantial, is extremely difficult of pecuniary estimation. This also entitles him to equitable relief. Myers v. Kalamazoo Buggy Co., 54 Mich. 215.

EQUITY-RIGHT TO PRIVACY-USE OF PORTRAIT. Held, that a demurrer to a complaint asking for an injunction against the unauthorized use of the plaintiff's portrait for advertising purposes was rightly overruled. Roberson v. Rochester Folding Box Co., 64 N. Y. App. Div. 30. See NOTES, p. 227.

ESTOPPEL REPRESENTATION INDUCED BY TRICK- - ABSENCE OF INTENT TO DECEIVE PLAINTIFF. - Z., owing money to the plaintiff, promised to deposit it with the defendant. Without making a deposit, Z. induced the defendant to give the plaintiff a fictitious credit, the defendant believing Z.'s assertion that the plaintiff understood the arrangement. The plaintiff, however, relied on this credit to his damage, and now sues the defendant for the amount of the credit. Held, that the defendant is not estopped to deny the genuineness of the credit. Modern Woodmen v. Union Nat. Bank, 108 Fed. Rep. 753 (C. C. A., Eighth Circ.).

One who makes false representations to another, intending that they be acted upon in a certain way, is estopped to set up the truth to the injury of that other after he has so acted. Parlin v. Stone, 48 Fed. Rep. 8o8. This rule prevails even though the representation is induced by the trick of a third person. In re Bahia, L. R. 3 Q. B. 584. Furthermore, an intention to cause the action produced, or even to cause the plaintiff to act at all, is not necessary; if the natural and probable result of the representation is a detrimental change of position by the plaintiff, the rule of estoppel applies. Seton v. Lafone, 19 Q. B. Div. 68; Caswell v. Fuller, 77 Me. 105. The principal case seems to come within the above rules, and the defendant therefore should be estopped. Cornish v. Abington, 4 H. & N. 549. The court was undoubtedly the less willing to find an estoppel, since the plaintiff's actual injury was slight, whereas the damages in such case, according to the settled rule, would be the amount he would have received if the representation had been true. Casco Bank v. Keene, 53 Me. 103. See EWART ON ESTOPPEL, p. 191.

On the ques

EVIDENCE- Pedigree — DECLARATIONS OF FOSTER PARENTS. tion whether A was the father of B, the plaintiff offered declarations of B's foster parents, since deceased, who were not related to A or B. Held, that the declarations were admissible. Alston v. Alston, 86 N. W. Rep. 55. (Ia.).

Anciently, on pedigree questions, general community reputation was allowed; later, only declarations from those in the family or otherwise specially fitted to speak. HUBBACK, EVID. SUC. 653. See Whitelocke v. Baker, 13 Ves. Jun. 511, 514. The rule settled for England nearly a century ago confines the class of declarants to those related by blood or closely by marriage to one whose pedigree is in question. Johnson v. Lawson, 2 Bing. 86. If this rule, justly recommended as at once certain and intelligible, is to be relaxed at all, the declaration in the principal case is, in reason, admissible. Many American courts, while excluding declarations of mere neighbors or acquaintances, attempt to rationalize the English restriction by language approving declarations of all persons who, having lived in the family, may be supposed to know.