unnecessary; but simultaneously it emasculates the statute which permitted the attachment of the stock. The difficulty in the principal case can be avoided by a statutory provision that only the certificates shall be attachable. See UNIFORM TRANSFER OF STOCK ACT, § 13. Such provision is consonant with business custom which regards the certificate as the res. See Puget Sound Bank v. Matther, 60 Minn. 362, 363, 62 N. W. 396, 397.

CORPORATIONS PROMOTERS CONTRACTS MADE FOR CORPORATION TO BE FORMED. Certain promoters of a corporation to be formed agreed, inter alia, that if the plaintiff would transfer his interest in some mine property to one of the promoters, as trustee for himself and his associates, to be by him transferred to the corporation when formed, the corporation would give the plaintiff a one fifth interest in the completed enterprise. The plaintiff brought this bill against the corporation and the promoters for specific performance of the contract. Held, that it be granted. Wallace v. Eclipse Pocahontas Coal Co. et al., 98 S. E. 293 (W. Va.).

In England it is settled that a corporation cannot ratify or adopt a contract made by promoters in its behalf before incorporation. In re Northumberland Ave. Hotel Co., 33 Ch. D. 16; Natal Land Co. v. Pauline Colliery Syndicate, [1904] A. C. 120. The English rule is not without support in the United States. See Abbott v. Hapgood, 150 Mass. 248, 252, 22 N. E. 907, 908. But some American jurisdictions allow ratification on such facts. Oakes v. Cattaraugus Water Co., 143 N. Y. 430, 38 N. E. 461; Kaeppler v. Redfield Creamery Co., 12 S. D. 483, 81 N. W. 907. Other states rely on a doctrine of adoption. McArthur v. Times Printing Co., 48 Minn. 319. See Robbins v. Bangor Ry. Co., 100 Me. 496, 501. Theoretically, the English rule seems correct. On the other hand, the result reached in the American cases is the desirable one. To reach this result without overthrowing fundamental principles of agency, several theories have been suggested. If there has been a novation effected between the corporation and the third party, all agree that the corporation is bound. Snow v. Thompson Oil Co., 59 Pa. St. 209. See Oldham v. Mt. Sterling Imp. Co., 103 Ky. 529, 531. Another theory advanced is that the original contract may be regarded as a continuing offer which, if not withdrawn, may be accepted by the corporation. Pratt v. Oshkosh Match Co., 89 Wis. 406, 62 N. W. 84. See 14 HARV. L. REV. 536. Neither of these suggestions help to support the decision in the principal case. The bill is brought for the enforcement of the agreement made with the promoters and not of any contract made by the corporation itself.

CRIMINAL LAW CONCURRENT JURISDICTION OF STATE AND UNITED STATES SEDITION ACT. A New Jersey statute made it a crime to incite hostility against the United States (N. J. Laws, 1918, chap. 44, § 2). Held, statute is constitutional. State v. Tachin, 106 Atl. 145 (N. J.).

In the absence of a federal statute on the subject, a state may enact that an offense primarily against the United States is an offense against the state as well. Halter v. Nebraska, 205 U. S. 34. A state and the United States may have concurrent jurisdiction over a crime against both sovereignties, where the crime is covered by a federal statute and the state statute does not interfere with its operation. State v. Holm, 139 Minn. 267, 166 N. W. 181; see 40 STAT. AT L. 219, chap. 75, § 1. Each sovereign punishes the offense against itself.

CRIMINAL LAW-FORMER JEOPARDY IDENTITY OF OFFENSES. The defendant was indicted for a homicide that was the result of violence in the perpetration of a robbery. He had been previously convicted of the robbery, and he set up this former conviction as a defense. Held, a valid defense. State v. Mowser, 106 Atl. 416 (N. J.).

It is generally said that to constitute double jeopardy the two offenses must be the same in law and fact. See Commonwealth v. Roby, 12 Pick. (Mass.) 496, 504. But the decisions differ as to when such identity exists. That both offenses arose out of the same transaction is not enough. Morey v. Commonwealth, 108 Mass. 433; The King v. Barron, [1914] 2 K. B. 570. If on trial of the first indictment the accused could lawfully have been convicted of the offense charged in the second, or vice versa, by the English rule, followed in many American jurisdictions, there is double jeopardy. Spears v. People, 220 Ill. 72, 77 N. E. 112; see Regina v. Gilmore, 15 Cox C. C. 85, 87; 2 East, Pleas of tHE CROWN, 522. Thus, it is clear that if one crime is included in the other, or, a fortiori, if they are different degrees of the same offense, prosecution for either will be a defense to the other. Grafton v. United States, 206 U. S. 333; Floyd v. State, 80 Ark. 94, 96 S. W. 125. But if conviction for one of two offenses cannot be had under proof of the other, some states hold that there is not the requisite identity, even though the offenses arose out of the same transaction and have a common essential ingredient. State v. Rose, 89 Ohio St. 383, 106 N. E. 50; State v. Patterson, 66 Kan. 447, 71 Pac. 860. Other courts, however, under like circumstances, consider a common essential ingredient sufficient to cause jeopardy. State v. Cooper, 13 N. J. L. 361; Herera v. State, 35 Tex. App. 607, 34 S. W. 943. This view, followed in the principal case, seems sound. See 20 HARV. L. REV. 642.

CRIMINAL LAW - STATUTORY OFFENSES REQUIREMENT OF MENS REA FOR A CRIME BASED ON POSSESSION. A Mississippi statute provides that it shall be unlawful to possess liquor, and imposes a penalty of a fine or imprisonment, or both (1918 MISS. LAWS, c. 189, § 2). Liquor was found in the shop of the defendant. The jury found that the defendant did not own the liquor, and had no knowledge of the fact that it was in his shop. Held, the defendant should be acquitted. City of Jackson v. Gordon, 80 So. 785 (Miss.).

For certain statutory offenses, such as violations of police regulations, in their nature mere torts against the state, to a conviction of which no moral obloquy attaches, mens rea may well be considered unnecessary. People v. Kibler, 106 N. Y. 321, 12 N. E. 795; Commonwealth v. Weiss, 139 Pa. St. 247, 21 Atl. 10. But as to certain more serious offenses, particularly where the penalty is imprisonment, justice requires that the defendant be allowed all common-law defenses not expressly negatived by the legislators. Sherras v. De Rutzen, [1895] 1 Q. B. 918; State v. Brown, 188 Mo. App. 248, 175 S. W. 131; State v. Cox, 179 Pac. 575 (Ore.). The court in the principal case fails to note the distinction between these two classes of offenses but reaches the correct result by reading the word "knowingly" into the statute. The court intimates that the case might have been rested simply on the ground that one cannot possess that of which he has no knowledge. But specific knowledge is not essential to possession if there is a general intent to control that in which the chattel is included. Ford v. State, 85 Md. 465, 37 Atl. 172. See South Staffordshire Water Co. v. Sharman, [1896] 2 Q. B. 44, 47; HOLMES, THE COMMON LAW, 220. The principal case seems to indicate that the courts will be reluctant to hold a defendant guilty of any crime based on possession unless he has a more specific intent than is generally considered necessary to constitute possession for the purposes of civil rights and liabilities.

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DAMAGES EXEMPLARY DAMAGES LIABILITY OF A CORPORATION FOR PUNITIVE DAMAGES FOR THE TORT OF AN AGENT. In an action for personal injuries alleged to have been sustained by the plaintiff as the result of having been shoved from the platform of one of the defendant's street cars by the defendant's motorman, the court instructed the jury that if the acts of the motorman were done by him wilfully and without legal justification or excuse

or provocation, they might assess punitive damages against the defendant. The jury returned a verdict including punitive damages, and the defendant appealed from the judgment rendered thereon. Held, that the judgment be affirmed. Kennelly v. Kansas City Rys. Co., 214 S. W. 237 (Mo.).

Theoretically, a rule allowing punitive damages in civil cases is objectionable, since the purpose of the civil law is to compensate for injury, not to punish the wrongdoer. See I SEDGWICK, DAMAGES, 9 ed., § 353; H. E. Willis, "Measure of Damages when Property is Wrongfully taken by a Private Individual," 22 HARV. L. REV. 419, 420. But the doctrine is established by the weight of authority. Stalker v. Drake, 91 Kan. 142, 136 Pac. 912; Yazoo & M. V. R. Co. v. May, 104 Miss. 422, 61 So. 449. Contra, Longfellow v. Seattle, 76 Wash. 509, 136 Pac. 855. Whatever may be said in favor of the rule in general, there can be no justification for allowing punitive damages against a principal who is liable only on respondeat superior. When the principal is a natural person, the weight of authority is to this effect. Gaertner v. Bues, 109 Wis. 165, 85 N. W. 388; Lake Shore Ry. Co. v. Prentice, 147 U. S. 101. Contra, Boyer v. Coxen, 92 Md. 366, 48 Atl. 161. The result should be the same though the principal is a corporation. Peterson v. Middlesex Traction Co., 71 N. J. L. 296, 59 Atl. 456; Voves v. Great Northern Ry. Co., 26 N. D. 110, 143 N. W. 760. But the doctrine of the principal case, imposing punitive damages on a corporation principal liable only on respondeat superior, has support in decisions of other states. Goddard v. Grand Trunk Ry., 57 Me. 202; So. Express Co. v. Brown, 67 Miss. 260, 7 So. 318. It is argued that otherwise a corporation would never be subject to punitive damages, since it can act only through agents. See Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53. But unless the corporation directed or ratified the misconduct, or was negligent in selecting its agents, it could not possibly be said to deserve punishment. The decisions therefore seem unsound, even in a state permitting punitive damages generally.

DIVORCE-CRUELTY-ABUSE BY MOTHER-IN-LAW.-A husband was financially unable to furnish his bride with any other home than that belonging to his widowed mother with whom he lived. He always treated his wife kindly, but his mother abused her severely. The wife returned to her parents and filed a petition for divorce on the ground of cruelty. Held, that the divorce be granted. Thompson v. Thompson, 171 N. W. 347 (Mich.).

Where a husband acquiesces in the mistreatment of his wife by third persons, he is chargeable with their cruelty. Snyder v. Snyder, 98 Misc. 431, 162 N. Y. Supp. 607; Sayles v. Sayles, 103 Atl. 225 (R. I.). Or where he arbitrarily refuses to provide a home away from such persons. Dakin v. Dakin, 1 Neb. Unof. 457, 95 N. W. 781; Hall v. Hall, 9 Ore. 452. The principal case extends the imputation of cruelty to a husband without fault. The wife was undoubtedly justified in separating herself from the household where she was mistreated. Marshak v. Marshak, 115 Ark. 51, 170 S. W. 567; Hall v. Hall, 69 W. Va. 175, 71 S. E. 103. And the husband would be chargeable with desertion at the end of the statutory period if by his own fault he failed to provide a separate home. Curlett v. Curlett, 106 Ill. App. 81. But not if his inability continued without his fault. Skean v. Skean, 33 N. J. Eq. 148. In the principal case, the wife's grievance narrows down to the non-culpable inability of the husband to furnish her a proper home. It would seem that the court should have gone no further than to decree legal separation, in the absence of a statute making nonsupport a ground for absolute divorce.

EQUITABLE SERVITUDES STATUTE OF FRAUDS - REPRESENTATION OF FUTURE CONDUCT AS BASIS OF ESTOPPEL. The defendant sold the plaintiff a lot near the ocean, retaining the intervening land, and orally promising to build nothing except a boardwalk upon it. The plaintiff, relying upon the

defendant's promise, built a house. The defendant being about to sell the land in front of the plaintiff's house, free of restrictions, the plaintiff sought an injunction. Held, injunction granted. Phillips v. West Rockaway Land Co., 124 N. E. 87 (N. Y. Ct. of App.).

It has been held that, because an equitable servitude is a property right, the servient land cannot be condemned without compensation to the dominant tenant. Flynn v. N. Y. W. & B. Ry. Co., 218 N. Y. 140, 112 N. E. 913. By the same reasoning, the better view is that equitable servitudes are within the Statute of Frauds. Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72; Pitkin v. Long Island Ry. Co., 2 Barb. Ch. (N. Y.) 221; Rice v. Roberts, 24 Wis. 461. Contra, Hall v. Solomon, 61 Conn. 476, 23 Atl. 876. The court does not consider this question, apparently confusing the creation of equitable servitudes with the creation of quasi-easements, which do not come within the purpose of the Statute. For estoppel, upon which doctrine the court rests its decision, the representation must be as to an existing fact, not merely as to future action. Maddison v. Alderson, L. R. 8 A. C. 467; White v. Ashton, 51 N. Y. 280. The case seems erroneous in principle and inconsistent with two lines of decisions of the same court.

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EVIDENCE ADMISSIONS CONDUCTOR'S REPORT OF ACCIDENTS. prove defendant's negligence, the plaintiff introduced in evidence, over defendant's objection, the report of the accident, submitted to the defendant by its conductor. Held, error, but not prejudicial. Bell v. Milwaukee Electric Ry. & Light Co., 172 N. W. 791 (Wis.).

When the reports can be regarded as being obtained with a view to the particular litigation, they are held to be privileged. Cossey & Wife v. London, Brighton & South Coast Railway Company, L. R. 5 C. P. 146. But this requisite, precedent to such privilege, is not present in the facts of the principal case. Mahoney v. National Widows Life Assurance Fund, Ltd., L. R. 6 C. P. 252; Woolley v. North London Railway Company, L. R. 4 C. P. 602; In re Bradley, 71 N. H. 54, 51 Atl. 264. However, such reports are plainly hearsay. Some courts have admitted an agent's statements in evidence when the time and manner of their utterance bring them within the somewhat loosely defined doctrines of res gestae. Peto v. Hague, 5 Esp. 134; Keyser v. Chicago & G. T. Ry. Co., 66 Mich. 390, 33 N. W. 867. Conversely, courts have excluded them when they cannot be brought within those doctrines. Carroll v. East Tennessee, V. & G. Ry. Co., 82 Ga. 452, 10 S. E. 163. But, in the principal case, the report was prepared some time after the event and is clearly not part of the res gestae within the cases cited. An agent's report is sometimes rejected on the theory that an agent's statements cannot be a principal's admissions. Atchison, T. & S. F. Ry. Co. v. Burks, 78 Kan. 515, 96 Pac. 950. But the distinct weight of authority is against this view, and makes the criterion, whether the agent has acted within the scope of his authority. Meyer et al. v. Great Western Ins. Co., 104 Cal. 381, 38 Pac. 82; Patterson v. United Artisans, 43 Ore. 333, 72 Pac. 1095; Hildebrand v. United Artisans, 50 Ore. 159, 91 Pac. 542. See 2 WIGMORE, EVIDENCE, § 1078. Usually conductors are required to report to the company circumstances of accidents. A fortiori, they are authorized to do so. And it should have no effect on the admissibility of the report as an admission that the conductor based it, in whole or in part, on what bystanders told him.

FEDERAL COURTS - JURISDICTION BASED ON NATURE OF SUBJECT MATTER — REVIEW OF DECISIONS OF STATE COURTS INVOLVING FEDERAL QUESTIONS, UNDER JUDICIAL CODE, § 237, AMENDED. - The procedure by which state court decisions involving a federal question may be reviewed by the United States Supreme Court, and the jurisdiction of that court to review such decisions, has been changed by amendments to the Judicial Code, § 237, in 1914 and 1916.

That such changes have not yet been appreciated by the profession is evidenced by late decisions of the Supreme Court dismissing writs of error for want of jurisdiction, with the remark that a writ of certiorari should have been requested. For a discussion of these cases, see NOTES, p. 102.

FOREIGN CORPORATIONS - WHAT CONSTITUTES DOING BUSINESS WITHIN A STATE. The defendant, a foreign railway corporation, had no property in Georgia but maintained a commercial agent there to solicit freight. He had no authority to make contracts. The plaintiff brought suit in Georgia for negligent injury that occurred in another state, and served the agent with process. Held, that the service was invalid. De Bow v. Vicksburg S. & P. Ry., 98 S. E. 381 (Ga.).

No valid personal judgment can be rendered against a foreign corporation unless it is doing business within the state. St. Clair v. Cox, 106 U. S. 350; Goldey v. Morning News, 156 U. S. 518. What acts constitute doing business are matters of fact, and it is difficult to find any helpful general criterion. However, acts done by agents who have authority to bind the corporation are considered to be a transaction of business. Commercial Mutual Accident Co. v. Davis, 213 U. S. 245. And, conversely, acts done by agents who have no authority to bind the corporation in any way have been held not to constitute doing business. People's Tobacco Co. v. American Tobacco Co., 246 U. S. 79. Cf. International Harvester Co. v. Kentucky, 234 U. S. 579. Thus, it has been frequently decided that a foreign railway, having no lines within the state, is not doing business therein merely by maintaining an agent to solicit shippers. Abraham Bros. v. Southern Ry. Co., 149 Ala. 547, 42 South. 837; Booz v. Texas & P. Ry., 250 Ill. 376, 95 N. E. 460; Green v. Chicago, B. & Q. Ry., 205 U. S. 530. It should be noted, however, that there has been suggested a doctrine that, for acquiring jurisdiction over a foreign corporation that does not expressly consent to the jurisdiction, the cause of action must have arisen within the state and out of the business therein transacted. Simon v. Southern Ry. Co., 236 U. S. 115. See Old Wayne Life Association v. McDonough, 204 U. S. 8, 22. The principal case and most of the cases holding that mere soliciting is not doing business could on their facts have been decided on this ground. There seems to be no good reason why soliciting is insufficient to give the state jurisdiction over causes of action arising within the state and out of the soliciting. Where this question was squarely presented, this view has been taken. Armstrong Co. v. New York Central & H. R. R. Co., 129 Minn. 104, 151 N. W. 917.

ACTS RESTRAINED

INJUNCTIONS SUITS IN FOREIGN JURISDICTION IN EVASION OF THE DOMESTIC LAW. -The defendant, a citizen of Indiana, brought an action of tort against the complainant, a fellow citizen, in Illinois. After the Statute of Limitations had run on the cause of action in Indiana, the complainant filed his bill to enjoin the Illinois suit on the ground that he would be deprived of the defense of the statute in Illinois. Held, that the action be enjoined. Culp v. Butler, 122 N. E. (Ind.) 684.

For a discussion of the principles involved, see NOTES, p. 92.

INSURANCE - RIGHTS OF BENEFICIARY COMPLIANCE WITH CONDITIONS REGULATING CHANGE OF BENEFICIARY. The beneficiary of a life certificate in a fraternal benefit association predeceased the insured. The latter took the certificate to the only representative of the association in the state and had him insert the name of a new beneficiary. A by-law of the association provided that a change of beneficiary would not be effective until the old policy had been surrendered and the executive committee had given its approval. Neither the insured nor the agent knew of this by-law. The insured died, and his