rights, or rights analogous, have been widely extended. Such an assignment of liens as is suggested seems merely to give proper effect to such rights. It can make no difference to the owner of the goods to whom he must pay his indebtedness, and whether the goods are in the hands of an assignee or a bailee, he can still hold the original lienholder responsible for their safety. On the other hand, it may be of the utmost importance to the lienholder that, by an assignment which gives his assignee all the rights he himself possesses, he can at once raise funds on a just Under these circumstances, since no distortion of legal principles nor perversion of policy is involved, such assignments of liens ought to be recognized.

RECENT CASES.

AGENCY- DAMAGES― PUNITive Damages FOR AGENT'S TORT.- The plaintiff came to the defendant's place of business with a wagon load of goods to sell. The defendant's servant ordered him to leave the premises, and on his refusal, struck him in an unjustifiable manner. Held, that in an action against the master, punitive damages were properly awarded. Boyer v. Coxen, 48 Atl. Rep. 161 (Md.).

The doctrine of punitive damages is opposed to sound legal principle, but is nevertheless supported by the weight of authority. See 2 GREENL. EV., 16th ed., § 253, n. 2. The object of such an award is to punish the defendant and thus protect society against wanton violations of personal rights and social order; therefore, some wilful or malicious wrongdoing by the defendant is generally held necessary. Voltz v. Blackmar, 64 N. Y. 440. The express authorization of the servant's tort by the master, and perhaps the employment of a palpably unfit man, may be regarded as making him sufficiently culpable; otherwise however punitive damages should not be awarded against him. Burns v. Campbell, 71 Ala. 271, 292. The principal case rests upon the theory that all the servant's acts within the scope of his employment are, in the contemplation of the law, the acts of the master. Punitive damages however are given, not as compensation for the injury resulting from the act, but as punishment for the evil motive, and of that the principal here is innocent. Accordingly, even if we accept the doctrine of punitive damages, the principal decision seems unjustifiable. Grund v. Van Vleck, 69 Ill. 478; Haines v. Schultz, 50 N. J. Law, 481.

AGENCY IMPLIED WARRANTY OF AUTHORITY. - FORGED POWER OF ATTORNEY.- A stock broker, acting in good faith under a forged power of attorney purporting to be signed by one Oliver, effected a transfer of stock standing in the Bank of England in Oliver's name. The bank, having made good the loss to Oliver, sued the stockbroker. Held, that the stockbroker is liable on an implied warranty of authority, even though the bank had equally good means of knowing of the forgery. Oliver v. Bank of England, 17 T. L. R. 286.

This decision is of importance to the business world, and is interesting in its application of the well-known doctrine of Collen v. Wright, 8 E. & B. 647. Theoretically it would seem that the action should be in tort, there being no contract. As there is no such action for innocent misrepresentation however, courts have implied a warranty of authority. Firbank's Executors v. Humphreys, 18 Q. B. D. 54. This doctrine, though generally acknowledged, has been modified where the agent makes a full disclosure of the facts concerning his authority. Lilly v. Smales, [1892] 1 Q. B. 456; Newman v. Sylvester, 42 Ind. 106. The principal case, it would seem, does not come within this exception. On similar facts the doctrine of implied warranty has been held to apply. Boston, etc., R. R. v. Richardson, 135 Mass. 473. Though such an application extends the doctrine of Collen v. Wright, supra, to cases where one not in reality an agent purports to act as such, it would seem to be correct. The rule which the principal case establishes is practical and in accordance with sound business principles, though in fact it is but a veiled exception to a settled principle in the law of Farmers' Coop. Trust Co. v. Floyd, 47 Oh. St. 525.

torts.

BANKRUPTCY NOTES- PROOF AGAINST MAKER AND INDORSER.- The Bank. ruptcy Act of 1898, § 65 c, provides that where a claim is proved and allowed after a dividend has been declared, it shall not affect such dividend, but if sufficient remains after the payment of the latter, the creditor shall receive an equal dividend before other creditors are paid further. The maker and indorser of a note were both bankrupt. The holder had proved against the estate of the maker after a dividend had been declared. Held, that he may prove against the estate of the indorser for the full amount of the note. In re Swift, 106 Fed. Rep. 65 (Dist. Ct., Mass.).

Where the maker and indorser of a note are both bankrupt the holder may prove against both for the full amount. In re Meyer, 78 Wis. 615. But where, before proving against the indorser's estate, he has proved against the maker's, and a dividend in his favor has been paid or declared, his proof against the indorser's estate must be reduced by so much. Sohier v. Loring, 6 Cush. 537. The present case decides correctly that the creditor's right to a preference in future dividends is not equivalent to a dividend declared in his favor, since it is uncertain how much, if anything, he will receive from the maker's estate. A right that is for any reason uncertain will not operate to reduce his claim. In re Hicks, Fed. Cas. No. 6456.

CARRIERS CONNECTING CARRIERS- - POSSESSION. - Before a train reached its destination an express company's agent took a baggage-check from a passenger, entered the baggage-car, as was his custom, and tied the check to the passenger's trunk. Between that time and its delivery by the express company, the trunk was robbed. Held, that the express company is liable to the passenger for the loss. Springer v. Westcott, 166 N. Y. 117; 59 N. E. Rep. 693.

The lower court went on the principle that the last of a series of connecting carriers must rebut a presumption that goods were received by him as delivered to the first carrier. Moore v. N. Y., etc., R. R. Co., 173 Mass. 335. This doctrine is believed to be unsound. Marquette, etc., R. R. Co. v. Kirkwood, 45 Mich. 51. However it is law in several jurisdictions, of which New York has been supposed to be one. Smith v. N. Y., etc., R. R. Co., 41 N. Y. 620. The present case seems within this rule. But the upper court rested its decision upon another ground, holding the express company liable from the moment its agent attached the check, seemingly on the principle that a common carrier becomes liable as such on taking possession, at a point off his route, of goods consigned to a place thereon. Evansville, etc., R. R. Co. v. Androscoggin Mills, 22 Wall. 594. An ordinary express messenger undoubtedly has posses. sion of parcels in an express car. Buckland v. Adams Ex. Co., 97 Mass. 124. But the facts of the principal case are entirely different and show no possession by the agent at the time in question. The position taken seems therefore untenable. The case is interesting as showing a disposition not to follow Smith v. R. R. Co., supra.

JURISDICTION.

CONFLICT OF LAWS-DIVORCE The defendant obtained in Oklahoma a divorce from her husband, a resident of New York, and subsequently remarried and returned to New York. Later the first husband sued for divorce in New York. Held, that this foreign divorce is invalid and no defence to the present suit. Winston v. Winston, 165 N. Y. 553; 59 N. E. Rep. 273. See NOTES, p. 66.

CONSTITUTIONAL LAW JURISDICTION CONTROVERSY BETWEEN STATES.The State of Missouri sought to restrain the State of Illinois from operating a sewerage system to the detriment of the inhabitants of the plaintiff state. Held, that the State of Missouri is a proper party plaintiff, so as to give the United States Supreme Court original jurisdiction. Missouri v. Illinois, 21 Sup. Ct. Rep. 331. See NOTES, p. 67.

CONTRACTS EXCUSE-IMPOSSIBILITY. The defendants contracted to run cars on their electric road as often as once every half hour. A series of unusually severe snowstorms obliged them to suspend operations for a time. Held, that there was an implied condition relieving the defendants from liability when, without their fault, performance was rendered impossible. Buffalo, etc., Co. v. Bellevue, etc., Co., 165 N. Y. 247; 59 N. E. Rep. 5. See NOTes, p. 63.

A contract

CONTRACTS-MISTAKE OF LAW UNCONSTITUTIONAL STATUTE. with a city contained, in accordance with the requirements of a statute, a stipulation that, if the contractor should fail to pay his workmen the prevailing rate of wages in the locality, the contract should be void. He did not comply with the stipulation. Held, that, the statute being unconstitutional, he is entitled to the contract price. People ex rel. Rodgers v. Coler, 166 N. Y. 1; 59 N. E. Rep. 716.

Since it can hardly be denied that the parties, apart from statute, could make such a contract if they chose, it is difficult to see what difference it can make that they did it in obedience to a void statute. It cannot be said that a contract deliberately entered into lacks mutual consent simply because the parties supposed that they could not legally have made it on different terms. Even had it been shown that neither party would have allowed the stipulation to be inserted but for the belief that the statute was binding, this would have been at most an error of law, against which it is generally held that there is no relief in law or equity. 3 WILLISTON'S PARS. CONT. 353. Moreover, had it been a mistake of fact it could have been corrected only in equity, and even that would have been a doubtful question. Stoddard v. Hart, 23 N. Y. 556. It is to be noted that the supposed necessity of inserting the stipulation must have made all the bids higher. The decision is therefore incorrect, and seems to rest on no authority.

CONTRACTS

Moral Consideration — Promise to perform Void ContraCT. -The plaintiff was induced by the defendant's promise of indemnity against loss to become surety for the defendant's husband. The promise was void on account of the disability of coverture. Held, that a subsequent promise made after the disability was removed, was void for lack of consideration. Holloway's Assignee v. Rudy, 60 S. W. Rep. 650 (Ky.).

The doctrine that an antecedent moral obligation is sufficient consideration to render a promise binding, was a creation of Lord Mansfield's. Just what moral obligation would be sufficient was never defined by him. That he meant to carry the doctrine beyond the familiar cases of infancy, bankruptcy, and the Statute of Limitations, which he used by way of illustration, is clearly shown by two of his later decisions. Atkins v. Hill, Cowp. 284 (1775); Hawkes v. Saunders, Cowp. 289 (1775). Although this new principle of Lord Mansfield's was viewed with disfavor, yet that it did find a place in the law for some time seems clear from two decisions, where a promise to perform a preceding void contract was held to be binding. Barnes v. Hedley, 2 Taun. 184 (1809); Lee v. Muggeridge, 5 Taun. 36 (1813). The doctrine has received no countenance in England since its repudiation in Eastwood v. Kenyon, 11 A. & E. 438 (1840). In this country it is now generally discredited, and the principal case is in accord with the weight of authority. Ezall v. King, 93 Ala. 470; Austin v. Davis, 128 Ind. 472. A contrary view, however, still finds some support. Hemphill v. McClimans, 24 Pa. St. 367; Bentley v. Lamb, 112 Pa. St. 480. By the Georgia Code a strong moral consideration is valid. Ga. Code (1895), § 3658.

CONTRACTS - Services — DiscHARGE FOR CAUSE. — On a contract for one year's service at a yearly salary, the plaintiff was discharged for neglect of duty. Held, that he could recover on the contract the proportional amount of his salary, diminished by the amount of legal damage caused by his wrongful act. Hildebrand v. American Fine-Art Co., 85 N. W. Rep. 268 (Wis.).

The plaintiff should not have recovered on the contract, because of his own breach; for in every contract of service a promise by the servant that he will perform his duty faithfully is implied. WOOD, MAS. & S. § 83. It is that breach which justifies the employer in refusing to go on with the contract. When the contract is divisible, the servant may recover wages for the work done, since the consideration for the promise to pay pro rata has been received. Taylor v. Laird, 1 H. & N. 266. Cf. LANG. SUM. CONT. 137, 166. When, however, there is but one promise to pay a fixed amount, that cannot be apportioned, and if the service has not been completed, there is an essential breach, and should be no recovery on the contract. Turner v. Robinson, 5 B. & Ad. 789. The nature of the plaintiff's right here seems to be quasi-contractual, and his recovery if any should be on a quantum meruit, but this is not generally allowed where the plaintiff's breach is wilful. 12 HARV. LAW REV. 284. The opposite view seems the better one. Britton v. Turner, 6 N. H. 481. The principal case reaches practically the same just result, but in allowing recovery on the contract, seems erroneous on principle, though supported by the weight of American authority in parallel cases. Byrd v. Boyd, 4 McCord, 246.

One

EQUITY-INTER PLEADER-TORT-FEASOR-IDENTITY OF CLAIM. The plaintiff sued for the contract price of lumber sold and delivered to the defendant. C claimed that the plaintiff had converted the lumber from him, and that he was entitled to receive the contract price from the defendant, who was allowed, under a statute, to pay the money into court and substitute C in his place as defendant. Held,

that this statutory interpleader is governed by the same rules as a bill of interpleader, that the original defendant could not have maintained such a bill, and that the plaintiff is therefore entitled to the money paid into court. Coleman v. Chambers, 29 So. Rep. 58 (Ala.). See NOTES, p. 61.

EVIDENCE-BURDEN OF PROOF-FACTS PECULIARLY WITHIN THE KNOWLEDGE OF THE DEFENDANT. - The plaintiff, while a passenger on the defendant's train, was injured by a red-hot cinder from the engine. Held, that when these facts are sl own, the burden of proof on the question of negligence falls upon the defendant. Texas, etc., R. R. Co. v. Jumper, 60 S. W. Rep. 797 (Tex., Civ. App.).

If by burden of proof is meant the duty of establishing freedom from negligence upon all the evidence, the case is clearly wrong, since proof of the defendant's negligence is an essential part of the plaintiff's case. Caldwell v. New Jersey, etc., Co., 47 N. Y. 282. But if, as is probable, the court means that the duty is cast upon the defendant of producing evidence, in the absence of which there is a presumption in the plaintiff's favor, the case is in accord with the weight of authority. Spaulding v. Chicago, etc., Ry. Co., 30 Wis. 110. The underlying principle of these cases is well established, namely, that when facts are peculiarly within the knowledge of one of the parties, the duty of going forward with evidence in respect to such facts lies on that party. THAYER, PREL. TREAT. EV. 359; King v. Burdett, 4 B. & Ald. 140. The application to this class of cases seems sound. The plaintiff is practically without means of acquiring information as to the equipment of the company's engines, while the company is in possession of all the facts. There are however numerous decisions where the principle is not applied. Pittsburg, etc., R. R. Co. v. Hixon, 110 Ind. 225.

EVIDENCE

COLLATERAL MATTER COMPLICATION OF THE ISSUE. — In an action by an abutting owner to recover for injuries to his property by the operation of a railroad, the plaintiff, in order to prove damage both by actual depreciation in value and by loss of the increase in value which would have occurred but for the presence of the railroad, offered expert testimony as to the general course of values in other property in the neighborhood. Held, that the evidence is admissible. Levin v. New York, etc., Ry. Co., 165 N. Y. 572; 59 N. E. Rep. 261.

The case raises the question as to how far evidence of collateral or extrinsic matter is admissible in proof of the fact in issue. The general principle applicable to such cases is that if the evidence is remote or conjectural, or unnecessarily complicates the issue, it will be excluded though logically probative. The question is one of common sense merely, the test being whether the practical objection that the evidence confuses or prejudices the jury is of sufficient weight to offset its logical value. THAYER, PreLIM. TREAT. Ev. 516-518. Thus in each case the decision lies largely within the sound discretion of the court, and opposite results may often be reached though the same rule of law is applied. Paine v. Boston, 4 Allen, 168; Petition of Thompson, 127 N. Y. 463. The method of proof adopted in the principal case, though somewhat objectionable as raising collateral issues, is simple, logical, and indeed often necessary. Upon another view of the case the evidence might have been admitted as a statement by an expert of the reasons for his opinion. Barber v. Merriam, 11 Allen, 322.

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EVIDENCE- CRIMINAL TRIAL TESTIMONY AT FORMER TRIAL. - Held, that the prisoner was not entitled to introduce testimony given at his former trial by a witness since deceased. Montgomery v. Commonwealth, 37 S. E. Rep. 841 (Va.). This decision follows the dictum in Finn v. Commonwealth, 5 Rand. 708, that in criminal actions the testimony given at a former trial by a witness since deceased cannot be introduced. This seems to be law in but two other jurisdictions. United States v. Sterland, Fed. Cas. No. 16387 (1858); Cline v. State, 36 Tex. Cr. App. 320 (1896). The Texas case, in which the evidence was offered by the prosecution, was decided on the ground that the admission of such testimony violates the constitutional provision that the prisoner shall have the right to confront the witnesses against him. It is, however, generally held that this provision is only an affirmance of the common law right of the accused that all testimony shall be delivered in his presence in open court, and is subject to the same exceptions and limitations, imposed by the necessities of the case. State v. McO'Blenis, 24 Mo. 402; 1 GREEN. Ev., 16th ed., § 163 f. Moreover the constitutional provision, even under the Texas interpretation, does not seem to apply in terms to the case where the accused seeks to prove the testimony of witnesses in his favor, and even if it were applicable in terms, as it exists solely for the protection of the accused, it is difficult to see what right the prosecution would have to object to 'ts waiver by him.

EVIDENCE

DYING DECLARATIONS INCORPORATION OF WRITTEN STATEMENT.- The declarations of the deceased, made in her last sickness, but before she had given up hope, were reduced to writing. Later, after she had lost hope, she declared that the written statement was correct. Held, that the writing was properly admitted as her dying declaration. Wilson v. Commonwealth, 60 S. W. Rep. 400 (Ky.).

The admissibility of dying declarations was formerly supported on the theory that the circumstance of impending death is of as great solemnity as an oath. Woodcock's Case, I Leach, C. C. 500. But the lack of an oath is not the only objection to such testimony, since its admission is inconsistent with the defendant's rights of cross-examination and of being confronted by his accusers. Marshall v. Chicago, etc., Ry. Co., 48 Ill. 475. In spite of these weighty objections, however, this exception to the hearsay rule is properly held to be justified by the obvious necessity of the case. Railing v. Commonwealth, 110 Pa. St. 100. The declarations may be either written or oral. Rex v. Reason, 1 Strange, 499. An oral repetition in extremis of a previous statement would therefore clearly be admissible, and the corroboration in the principal case may be regarded as practically a restatement and adoption of the former declaration. Under similar circumstances, the admission of the writing has been so justified. State v. McEvoy, 9 S. C. 208. This reasoning seems sound and amply sufficient to support the decision.

EVIDENCE RES GESTA - NUISANCE. - The plaintiff filed a bill to enjoin the defendant from storing cheese on his premises adjoining those of the plaintiff. Testimony of the plaintiff's janitor that the plaintiff's tenants had left, and had alleged the smell of the cheese as the reason for their departure, was rejected, and the injunction was refused. The plaintiff excepted to this ruling inter alia. Held, without mentioning the question of evidence, that the exceptions must be overruled. Smith v. Crawford, 56 N. Y. App. Div. 136.

Since no special damages were alleged in the complaint the fact of the tenants' leaving could be important only when explained by what the tenants said, since otherwise it could afford no sufficient inference as to the existence of an offensive smell. Therefore it should not be admitted in evidence. Lewis v. Smith, 107 Mass. 334. On the other hand, what the tenants said to the janitor, being reported by him, is hearsay and by itself inadmissible. Stapylton v. Clough, 2 E. & B. 933. In order to admit a declaration otherwise incompetent, as part of the res gesta, that is, as being part of or explaining an act, the act must be admissible alone. Wright v. Tatham, 4 Bing. N. C. 489, 498. Here therefore the act cannot make the declarations competent evidence, and consequently the janitor's testimony was properly excluded. Gresham Hotel Co. v. Manning, 1 Ir. Rep. C. L. 125.

EVIDENCE TESTIMONY AT FORMER TRIAL-TEST OF ADMISSIBILITY. — The plaintiff in a civil action sought to introduce the testimony of a witness in a former trial between the same parties on the same issue, the witness being out of the jurisdiction but alive. Held, that the evidence is not admissible. Wabash R. R. Co. v. Miller, 59 N. E. Rep. 485 (Ind.).

It is established that such testimony is admissible in civil cases where the witness is dead. Wright v. Tatham, 1 A. & E. 3; Yale v. Comstock, 112 Mass. 267. The principal case limits the doctrine strictly to cases of death. There is some authority for this view. Le Baron v. Crombie, 14 Mass. 233. It is slight however, and the tendency of recent authority is towards a liberal rule, including insanity, illness, absence through the opponent's procurement, disappearance, and absence from the jurisdiction; in short, any circumstances under which equity would allow a deposition to be taken for the purposes of a common law trial. Í GREENL. EV., 16th ed., § 163 ff. There are many troublesome distinctions in the cases and varying degrees of strictness. Berney v. Mitchell, 34 N. J. Law, 337. But the weight of authority holds the testimony admissible where the witness is out of the jurisdiction. Minneapolis Mill Co. v. Minneapolis, etc., R. R. Co., 51 Minn. 304. The case therefore seems contrary not only to the trend of modern cases, but to the majority of actual decisions on the precise point involved.

INSURANCE BENEFIT SOCIETIES CHANGE OF BENEFICIARY. One A, being a member of a benefit society, had the certificate made out to his wife. Later he wrote to the secretary, complying with the requirements for taking out a new certificate, and asking that such certificate be made out to his mother. The rules of the society made no provision for change of beneficiary. Before the rew certificate had been