The

CONTRACTS CONDITIONS PRECEDENT ARCHITECT'S CERTIFICATE. plaintiff contracted to build a house for the defendant, payment to be conditioned on production of the architect's certificate. The plaintiff claimed payment in spite of the refusal of the certificate. After finding specially that the reason for the architect's refusal was dissatisfaction with the work, the jury gave a general verdict in favor of the plaintiff. Held, that the general verdict must stand. Wicker v. Messinger, 12 Ohio Circ. Dec. 425. See NOTES, p. 481.

CONTRACTS-JOINT AND SEVERAL DEBTORS RELEASE. A bank obtained a judgment against A and B jointly and severally for £6000. On payment of £3000 in cash and notes by B, the bank gave him a receipt in full discharge of all its claims against him. The bank then claimed a debt of £3000 against A as the balance of the judgment debt. Held, that the receipt to B was equivalent to a release of B from the entire debt, and consequently operated to destroy the debt as against A. In re E. W. A., [1901] 2 K. B. 642 (C. A.).

A release under seal to one of two joint or joint and several debtors operates to release the other also. Clayton v. Kynaston, 2 Salk. 573, 574; Hale v. Spaulding, 145 Mass. 482. This is due to the peculiar nature of a joint liability; the right of the creditor is regarded as indivisible, and a common law release, which operates as an extinguishment of the debt, although given to but one of the debtors, must still have the legal effect of destroying the entire obligation. Durrell v. Wendell, 8 N. H. 369, 372. Since this is a technical rule and often violates the intent of the parties, the courts have refused to give the same effect to a mere agreement not to sue one of the joint debtors. Hutton v. Eyre, 6 Taunt. 289; Berry v. Gillis, 17 N. H. 9. The argument of circuity of action, which ordinarily gives those agreements the effect of a release, is not applicable in a suit against the other debtor. Garnett v. Macon, 2 Brock. (U. S. Circ. Ct.) 185, 219. American courts have expressly declared that the technical rule should be confined to common law releases. Line v. Nelson, 38 N. J. Law 358; cf. Grovenor v. Signor, 88 N. W. Rep. 278. This would seem to be the proper rule, and no authority has been found to support the principal case.

CONTRACTS-OFFER AND ACCEPTANCE )- · PERFORMANCE IN IGNORANCE OF REWARD OFFERED. —— The defendant offered a reward for the arrest and conviction of certain criminals. The plaintiff's services led to such arrest and conviction, but were substantially all rendered before the reward was offered or while he was ignorant of the offer. Held, that there was no acceptance of the offer. Williams v. West Chicago St. R. R. Co., 61 N. E. Rep. 456 (Ill.). See NOTES, p. 484.

DISCRIMINATING

CONSTITUTIONAL LAW RIGHT TO PRACTISE MEDICINE EXEMPTIONS. A statute (Wis. Laws, 1901, c. 306) makes an examination by the state board a prerequisite to a license to practise medicine, with a proviso exempting students then matriculated in medical colleges in the state which prescribed certain specified courses. Held, that the act is not unconstitutional as denying to graduates of medical colleges outside the state the equal protection of the laws. State ex rel. Kellogg v. Currans, 87 N. W. Rep. 561 (Wis.).

The regulation of occupations, the pursuit of which by incompetent persons is dangerous to the public, is a recognized branch of legislative power. Dent v. West Va., 129 U. S. 114. To secure proper qualifications the legislature may make any classification bearing some reasonable relation to that purpose. When any line is drawn its artificial character will render it unjust as to some, but unless the law is clearly arbitrary the courts should not declare it invalid. Ex parte Spinney, 10 Nev. 323; People v. Phippin, 70 Mich. 6. In the principal case the requirement imposed on the applicant is itself reasonable, but the complaint of unjust discrimination because of the exemption, is of force unless the favored class can be distinguished by some characteristic which might reasonably justify the exemption. It might perhaps be said that the legislature could rely on the character of the education furnished by the medical colleges of its own state, while it could not be expected to investigate and classify all colleges outside the state. On this ground the decision may be supported. Analogous statutes have been frequently upheld. People v. Phippin, supra; contra, In re Day, 181 Ill. 73.

CORPORATIONS EMBEZZLEMENT BY CASHIER - LIABILITY OF DIRECTORS FOR NEGLIGENCE. The cashier of a bank was enabled to embezzle funds by the failure of the directors to exercise proper supervision. The bank becoming insolvent, the

receiver sues the directors. Held, that they are liable. Campbell v. Watson, 50 Atl Rep. 120 (N. J. Ch.). See NOTES, p. 479.

CORPORATIONS - RIGHT OF ONE CORPORATION TO CONTROL ANOTHER — INJUNCTION AGAINST VOTING.-A general act permitted incorporation for specified purposes, "or for engaging in any other species of trade or business;" the corporation so formed to have power "for carrying on all kinds of business within the objects and purposes of the company as expressed in the articles of incorporation." Under this statute a smelting company was formed, its articles stating one purpose to be the holding of stock in other companies. After it had obtained control of the stock of a previously existing smelting company, the minority stockholders of the latter sued to restrain the new corporation from voting as a stockholder in the old. Held, that an injunction should issue. Parsons v. Tacoma Smelting, etc., Co., 65 Pac. Rep. 765 (Wash.).

The court, relying on the rule of statutory construction that power to hold stock must be expressly granted, denies that the defendant has such power. This rule served well for corporations specially chartered, for it protected stockholders from unexpected diversion of corporate funds and construed strictly state grants. See Franklin Co. v. Lewiston Institution for Savings, 68 Me. 43; see also note, 36 Am. St. Rep. 134. In the principal case, however, these reasons fail. The articles of incorporation warn prospective stockholders and the above extracts from the general statute hardly admit a strict construction on this point. What other sound principle a construction favoring the power in question would offend, is not clear. The particular injunction granted, however, was amply justified. When one corporation has voting control over another, the exercise of which is likely to defraud minority interests, equity jurisdiction to prevent such exercise is established, though vaguely defined. Memphis & Charleston R. R. Co. v. Woods, 88 Ala. 630; cf. American, etc., Co. v. Linn, 93 Ala. 610. Such exercise of control by a corporation having corporate interests overshadowing those it has as stockholder, is held fraudulent even where similar conduct in one or more individuals as majority stockholders would not be questioned. See Glengary, etc., Co. v. Boehmer, 62 Pac. Rep. 839 (Col.).

INTENT TO DEPRIVE PERMANENTLY.

CRIMINAL LAW- LARCENY - To secure a reward offered for the arrest of any person stealing goods from a certain store, a detective, through a confederate, induced an employee in the store to steal a watch and bring it to him, whereupon he at once returned it to its owner in accordance with his original plan. Held, that the detective is guilty of larceny of the watch, the animus furandi being found in the intent to secure and keep the reward. Slaughter v. State, 88 S. E. 854 (Ga.).

The felonious intent necessary to larceny does not exist unless the wrong-doer intends to deprive the owner of his property absolutely, either permanently or for a very considerable length of time. Rex v. Crump, 1 C. & P. 658; State v. South, 28 N. J. Law 28. It is well settled that holding property for a reward, intending never to return it unless such reward is offered, is within this rule. Commonwealth v. Mason, 105 Mass. 163; Berry v. State, 31 Oh. St. 219. But simply holding property temporarily in the hope of a reward, intending to return it at all events, is not larceny. Regina v. Gardner, Cox C. C. 253. In the principal case the detective's intention throughout was to return the property to the owner unconditionally; and the fact that he meant to profit collaterally by the transaction could not, under the circumstances, furnish the felonious intent. Cf. Regina v. Holloway, 3 Cox C. C. 241. It would seem, however, that a conviction might have been had on another ground. The servant took the watch with felonious intent, and by the procurement of the detective. The latter was therefore an accessory before the fact. But in Georgia such a larceny as this is a misdemeanor, and in misdemeanors all are held as principals. CODE of Ga., § 4409; Kinnebrew v. State, 80 Ga. 232.

CRIMINAL LAW LAWFUL ACT RESULTING IN UNLAWFUL ACTS BY OTHERS. — The appellant, a Protestant lecturer, was in the habit of holding meetings in the streets of Liverpool, at which he spoke in highly insulting, though lawful language of the Catholic religion. As a result there were frequent breaches of the peace by Catholics among his hearers. He intended to continue the meetings. Held, that he was properly put under recognizance to be of good behavior. Wise v. Dunning, 18 T. L. R. 85 (Eng., K. B.).

Cases of this class raise the interesting question whether an act lawful in itself be

comes unlawful if a breach of the peace by others results from the doing of it. It seems clear on principle that it can be punishable criminally only if the actor has the mens rea; that is, if he intends an unlawful result, or if he is guilty of culpable negligence. Cf. Beatty v. Gillbanks, 9 Q. B. D. 308. In the principal case it is admitted that the appellant did not intend to induce a riot. In order to find negligence, it is necessary to find that he was under a duty to use care. It is submitted that so long as a man's acts are lawful, and he does not intend to induce others to act unlawfully, there is no duty upon him to guard against the unlawful acts others may choose to commit. Cf. State v. Evans, 124 Mo. 397. The case seems not fairly distinguishable from Beatty v. Gillbanks, supra. The view of the court would result in placing a burdensome restriction on the right of free speech, and personal liberty in general.

EQUITY INJUNCTION - Contract to TRADE EXCLUSIVELY WITH Plaintiff. The defendant contracted to purchase from the plaintiff all the electrical energy that he might require in his hotel for a period of five years. Held, that he may be enjoined from purchasing electricity for his hotel from any one other than the plaintiff during the time covered by the agreement. Metropolitan Electric Supply Co. v. Ginder, [1901] 2 Ch. 799. See NOTES, p. 480.

EQUITY INJUNCTION - DISCRIMINATION BY PUBLIC SERVICE CORPORATIONS. - The plaintiff, a water company, sought an injunction against a rival water and sewer corporation, restraining the latter from so discriminating in its sewerage rates against the plaintiff's patrons that loss of business would result to the plaintiff. Held, that the injunction was properly issued. City of Mobile v. Bienville Water Supply Co., 30 So. Rep. 445 (Ala.). See NOTES, p. 478.

EVIDENCE - HEARSAY PROOF OF CONTENTS OF LOST DEED. The plaintiff offered, as proof of the contents of a lost deed, the testimony of a witness who had heard the deed read to the grantee by a subscribing witness. Held, that this evidence was wrongly excluded. Laster v. Blackwell, 30 So. Rep. 663 (Ala.).

There are some decisions in regard to lost wills in accord with this case. Morris v. Swaney, 7 Heisk. (Tenn.) 591. The better considered view is, however, contra. Coxe v. England, 65 Pa. St. 212; Propst v. Mathis, 115 N. C. 526, semble. The objection that the evidence is hearsay seems generally to have been overlooked in the former class of cases. But it is obviously offered to prove an ultimate fact, the contents of the deed, by the statement of another and not from the personal knowledge of the witness. To show that the contents of two writings are the same it is held enough for the witness to have examined one while another person read the other. Pickard v. Bailey, 26 N. H. 152. But this is a "classical exception" to the general rule and it is unsafe to reason from it to other cases. See I GREENL., Ev., 16th ed., 430 ja. Moreover the balance of convenience appears to be against admit. ting such testimony as that offered in the principal case. To allow proof of the contents of lost documents by mere hearsay would occasion great uncertainty; and the courts have been exceedingly strict concerning the sort of proof required for such writings. See Davis v. Sigourney, 8 Met. (Mass.) 487.

LIBEL-PUBLICATION IN WILL - LIABILITY OF TESTATOR'S ESTATE. - Held, that the probate of a will containing libellous matter is a publication of the libel, for which the estate of the testator is liable. In re Gallagher, 49 Pitts. L. J. 161 (Pa., Orphans' Ct.). See NOTES, p. 483.

MANDAMUS

DISCRETIONARY POWER FRAUDULENT ASSESSMENT. - A Board of Equalization, having power to assess the capital stock of corporations at its fair cash value under rules to be established by itself, fraudulently assessed certain corporations in such a way as practically to exempt their capital stock. Held, that the Board may be compelled by mandamus to assess the capital stock in accordance with a rule prescribed by the decree. State Board of Equalization v. People, 61 N. E. Rep. 339 (Ill.).

The decision seems to be correct, for there is no doubt that the discharge of a discretionary duty may be controlled by mandamus where the defendants have acted fraudulently or in bad faith. Detroit v. Hosmer, 79 Mich. 384. It is true that in most of the cases good faith demanded precisely the action directed by the court, whereas the principal decision apparently lays down one rule of assessment where, originally, some other might fairly have been followed. In at least one other case, however, the

legitimate scope of discretion as originally granted, was clearly thus narrowed. State v. Board of Public Schools, 134 Mo. 296. Moreover, such restriction may often be very advisable, since the defendants, in this class of cases, must always have shown a disposition not to comply with their duty.

PERSONS HUSBAND AND WIFE - VOLUNTARY ANTENUPTIAL CONVEYANCE. Just before marriage, X conveyed all his property on trust for himself for life, with remainders over. The plaintiff married him in ignorance of the conveyance, and now brings suit to have it set aside. Held, that as X is still alive and has the income of the property with which to support the plaintiff, she is entitled to no present relief. Potter v. Fidelity, etc., Co., 49 Atl. Rep. 86 (Pa.).

In similar cases in the United States, the widow is allowed, after the death of the husband, to obtain dower in the lands conveyed. The proper basis for such decisions seems to be the duty of good faith towards each other incurred by persons engaged to be married. See 14 HARV. L. REV. 452. The deed, however, is set aside only to the extent of allowing dower. Chandler v. Hollingsworth, 3 Del. Ch. 99. Similarly, since a wife has no control of her husband's property, the deed should not during his lifetime be declared wholly void, unless perhaps when the husband has thereby rendered himself unable to support his wife. The result in the principal case seems so far correct. But see, contra, Beere v. Beere, 79 Ia. 555; Way v. Way, 67 Wis. 662. Since, however, the deed as it stands bars the possibility of dower, or the corresponding statutory right in the personal estate, a decree that the deed is void so far as it interferes with those rights would seem proper, and this would make further litigation unnecessary. In the only two cases found directly in point, except those above cited, such a decree was made. Petty v. Petty, 4 B. Mon. (Ky.) 215; Leach v. Duvall, 8 Bush (Ky.) 201.

PERSONS- MORTGAGE BY INFANTS AVOIDANCE. The plaintiff, while an infant, obtained advances from a building society, to purchase a piece of land and to erect houses thereon. The land was conveyed to the infant by the vendor and the next day mortgaged to the society to secure the advances. On learning of the plaintiff's infancy, the society took possession of the property. When the plaintiff attained her majority, she repudiated the contract and mortgage, and brought action for possession. Held, that the mortgage is void; yet, since but for the advance of the purchase money the vendor would have had a vendor's lien, the society can to the extent of the purchase money stand in the vendor's shoes. Thurstan v. Nottingham, etc., Society, [1902] I Ch. 1 (C. A.).

The lower court held that the plaintiff could not repudiate the mortgage, and affirm the conveyance, on the unsatisfactory ground that they were one transaction. See comment in 14 HARV. L. REV. 388. The Court of Appeal, though recognizing the hardship on the society, felt able to protect it only so far as could be done on the doubtful theory of vendor's lien. It would seem that the court might, on sound legal principle, have protected the society to the full extent of its advances. When an infant, on coming of age, disaffirms a contract, he is bound to restore whatever of the consideration still remains in his hands. Badger v. Phinney, 15 Mass. 359. If he no longer has the consideration in specie, such of his property as can be identified as the direct proceeds of the consideration is liable to the other party's claim. MacGreal v. Taylor, 167 U. S. 688. On this view, though it be admitted that the mortgage is void, the plaintiff would, unless willing to perform the contract, hold land and buildings, the proceeds of the advances, subject to a constructive trust for the society. Cf. Dyer v. Jacoway, 42 Ark. 186.

PERSONS PARENT AND CHILD-DUTY TO SUPPORT. - By a divorce decree custody of the minor children was awarded to the wife. Held, that money expended by her in support of the children after the divorce, can be recovered from the father. Eldred v. Eldred, 87 N. W. Rep. 340 (Neb.).

There being no state statute on the subject, the case assumes the existence of a common law duty resting on a father to support his minor children. The conflict of authority on so fundamental a point is striking. In England and in many American jurisdictions it is denied that such a common law duty exists. Shelton v. Springett, 11 C. B. 452; Kelley v. Davis, 49 N. H. 187. The early English authorities seem to sup. port this view. See Mortimore v. Wright, 6 M. & W. 482. It is said that the common law prefers to leave the enforcement of moral duties of this kind to the natural impulses of the individual. I CHIT. BL. 448, note. Some American jurisdictions

hold that the common law does impose such a duty. Brow v. Brightman, 136 Mass. 187; Hall v. Green, 87 Me. 122. An early statute, 43 Eliz. c. 2, which is a part of the common law of this country, requires fathers, if able, to support poor and impotent children. On this statute is based the criminal liability of a parent for neglect resulting in injury to the health of a child of tender years. Rex v. Friend, R. & R. 20. The statute is construed as referring only to children unable to care for themselves. See Finch v. Finch, 22 Conn. 411. It would seem that the doctrine tacitly adopted in the principal case can be supported only if the children were within this statute.

PERSONS PARENT AND CHILD SUPPORT OF CHILDREN AFTER DIVORCE. By a decree of divorce, the wife was awarded alimony and given custody of the children, no express provision being made for their support. Held, that the father's liability for their maintenance continues. Eldred v. Eldred, 87 N. W. Rep. 340 (Neb.). This question could arise only in jurisdictions recognizing the father's legal duty to support his children. In many such jurisdictions it is held that the right to services and the duty to support go hand in hand; and accordingly that, when the children are given into the keeping of the mother, the father's duty to support them ceases. Burritt v. Burritt, 29 Barb. (N. Y.) 124. Other authorities give such effect to the decree only when it is coupled with an award of alimony. Draper v. Draper, 68 Ill. 17. It would seem that alimony ought to be regarded as exclusively for the wife. See Richmond v. Richmond, 2 N. J. Eq. 90. But when she is given custody of the children most courts undoubtedly allow that fact to influence them in fixing the amount of the alimony. The balance of authority seems, however, to incline toward the rule of the principal case, on the very good ground that the father ought not to be allowed by his own wrong to cast off his obligation to his children. Pretzinger v. Pretzinger, 45 Oh. St. 452. It would seem that all difficulty might be avoided by statutes requiring courts in all such cases to make separate awards for the wife and for the children.

PROPERTY - ANCIENT LIGHTS — RIGHT TO AN EXTRAORDINARY AMOUNT OF LIGHT. The plaintiffs, who had acquired an easement of light, needed an extraordinary amount of light for their business. According to the finding of the court, the defendants' newly erected building cut off a substantial amount of light, but enough remained for all ordinary purposes of inhabitancy or business. Held, that the plaintiff is entitled to relief. Warren v. Brown, [1902] i K. B. 15 (C. A.).

Up to within forty years, it seemed to be settled law in England that action would not lie for obstruction of ancient lights merely because the plaintiff had less light than formerly, but only if material inconvenience in ordinary occupations was caused. Fishmongers' Co. v. East India Co., 1 Dick. 163; Back v. Stacey, 2 C. & P. 465. Some cases, of late years, have followed the old rule. Lanfranchi v. MacKenzie, L. R. 4 Eq. 421. The tendency, however, has been toward the view adopted in the principal case by the Court of Appeal. Lazarus v. Artistic Photographic Co., [1897] 2 Ch. 214; cf. also Mackey v. Scottish Widows, etc., Society, Ir. Rep. 11 Eq. 541. Logically, the decision in the principal case is sound. On grounds of expediency, however, it is open to objection. If a building cannot be put up which would cut off a substantial amount of light from neighboring ancient windows, even though sufficient light is left for all ordinary occupations, an unnecessarily serious restraint is placed upon the beneficial use of property. Prescriptive easements of light are not recognized in this country; but some jurisdictions hold that the grantee of land has an easement of light by implied grant over the adjoining unimproved land of his grantor. Sutphen v. Therkelson, 38 N. J. Eq. 318. It is to be hoped that those jurisdictions will not adopt the rule of the principal case, as to what constitutes actionable interference.

PROPERTY CHATTELS SEVERED BY DISSEISOR — ACTION BEFORE RE-ENTRY. The defendant, being in possession of the plaintiff's land under a bona fide claim of title, cut down and removed trees. Held, that before re-entry, neither the logs nor their value can be recovered. Clarke v. Clyde, 66 Pac. Rep. 46 (Wash.). See NOTES, p. 486.

PROPERTY STATUTE OF LIMITATIONS ACCRUAL OF ACTION ON COVENANT OF WARRANTY. - The defendant in 1886 conveyed to the plaintiff with covenant of warranty land then possessed, under contract of purchase, by a third person, who in September 1890 obtained a decree for a conveyance. Held, that an action on the covenant of warranty, brought in August 1895, is not barred by a five-year statute of limitations. Watson v. Heyn, 86 N. W. Rep. 1064 (Neb.).