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Ever since sleeping cars have been in general use, the courts with almost uninterrupted regularity have decided that inasmuch as the sleeping car companies are neither innkeepers nor common carriers, they are not under the extreme liability attaching to those occupations. P. P. C. Co. v. Smith, 73 Ill. 360; Blum v. S. P. P. C. Co., 1 Flippin, 500; Lewis v. N. Y. P. C. Co., 143 Mass. 267. The Georgia court discusses the relationship of the company to the passenger on its own merits, and, notwithstanding the necessity which the sleeping car has become, the defenceless condition of the passenger, and the consequent resemblance to that state of facts which developed the heavy responsibility of the innkeeper, reaches the same conclusion as the cases cited. The single case opposed to the current of authority is P. P. C. Co. v. Lowe, 28 Neb. 239, holding the company an innkeeper.

CONFLICT OF LAWS-FOREIGN JUDGMENTS - CONCLUSIVENESS.-Held, Judg ments rendered in France, by whose laws judgments of the United States courts are reviewable on their merits, are not conclusive when sued upon in the United States, but are only prima facie evidence of the justice of the plaintiff's claim. (Fuller, C. J., Harlan, Brewer, and Jackson, JJ., dissenting.) Hilton v. Guyot, 16 Sup. Ct. Rep. 139. The case presents a fundamental question, and one likely to occur very often. The decision, therefore, is of more than ordinary importance. On strict common law principles it can hardly be supported. It has long been settled that our courts will respect and enforce private rights acquired under foreign laws, and it is difficult to see why a right acquired under a foreign judgment does not come within this category. The fact that France does not recognize United States judgments as conclusive would seem to be a political argument, rather than a legal ground, for refusing to recognize the judgments of France. It presents a question of the comity of nations. The court falls into the error of supposing that comity means reciprocal courtesy. If comity is a part of the common law, as we believe it to be, the courts have no discretion to apply it in one way to one country and in another way to another country. The dissenting opinion of Mr. Chief Justice Fuller seems entirely sound.

The decision follows the rule adopted in most of the Continental countries, and which was formerly the rule in England; Roach v. Garvan, 1 Ves. Sr. 157; but has since been disapproved by the English courts, which now hold that foreign judgments are impeachable only on the ground of fraud or lack of jurisdiction. Nouvion v. Freeman, 15 App. Cases, 1, 9; Goddard v. Gray, L. R. 6 Q. B. 139-148. Some of our State courts are in accord with the modern English doctrine, and treat foreign judgments as conclusive. Dunstan v. Higgins, 138 N. Y. 70 (1893); Rankin v. Goddard, 55 Me. 389; Baker v. Palmer, 83 Ill. 568.


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ant who is duly served with process while temporarily in Sweden, and who appears by attorney, is amenable to the jurisdiction of its courts, and a judgment against him will be enforced in the courts of England. Carrick v. Hancock, 12 The Times Law Rep. 59.

A foreign judgment in personam obtained without service of process on the defendant is internationally invalid, but if the defendant appears, though under protest, any judgment will be enforced by the courts of his domicil if the court of original judgment had jurisdiction. Voinet v. Barrett, 58 L. J. Q. B. 39; Boissière & Co. v. Brockner & Co., 6 The Times Law Rep. 85. The court holds also that the duty of allegiance is correlative with the protection given by a state to every one within its territory, and that a valid service of process may be made upon a defendant as soon as he enters the country, irrespective of the time he intends to remain.

CONFLICT OF LAWS GENERAL COMMERCIAL LAW RIGHT OF STATES TO CHANGE. Defendant in Wisconsin put his name on the back of a note payable in Massachusetts. According to decisions in Wisconsin, this made him an indorser; according to United States decisions, he was a joint maker. A statute in Massachusetts made notice to such person necessary to his liability. Held, that the United States court would not follow the decisions of the State court in matters of general commercial law, and that defendant was a joint maker; but that the court would apply the statute of Massachusetts, under which defendant was not liable. Phipps v. Harding, 70 Fed. Rep. 468.

The first point is the settled doctrine in the Federal courts. It was argued from this and from certain language in Swift v. Tyson, 16 Pet. 1, 18, and Watson v. Tarpley, 18 How. 517, 521, that State statutes should also be disregarded. The dicta referred to do give ground for the contention, but the court refuses to follow them and limit the legislative power of the States. The decision on the second point cannot be objected to in effect, but it seems perhaps to be somewhat inconsistent with the first.

CORPORATIONS · LIABILITY OF PROMOTERS. Several persons associated themselves for the purpose of organizing a corporation, entered into contracts in the name of the proposed corporation, and then abandoned their purpose. Held, the relation of such promoters to each other is that of principal and agent, and each is liable for such contracts as he authorized or ratified. Roberts Manuf. Co. v. Schlick, 64 N. W. Rep. 826 (Minn.).

This is the doctrine admirably stated in Johnson v. Corser, 34 Minn. 355, and, it is submitted, is correct. The notion that such promoters are liable as partners or nothing (Martin v. Fewell, 79 Mo. 401), is indefensible. The ordinary principles of agency cover the case.

EQUITY ASSIGNMENT FOR Benefit of CreDITORS - MARSHALLING ASSETS. — Where a debtor made a general assignment for all his creditors, it was held that a creditor whose debt was partly secured by a lien on specific property could recover from the assignee on the basis of his whole debt without deducting the amount which he would realize on his separate lien. Winston v. Biggs, 23 S. E. Rep. 316 (N. C.).

In many States a secured creditor is allowed to receive a dividend only upon the balance remaining unpaid after exhausting his security. Wurtz v. Hart, 13 Iowa, 515; National Union Bank v. National Mechanics' Bank, 30 Atl. Rep. 913 (Md.); Merchants' Bank v. Eastern Ry. Co., 124 Mass. 518. The prevailing view, however, is in accord with the principal case. Allen v. Danielson, 15 R. I. 481; West v. Bank of Rutland, 19 Vt. 403; Paddock v. Bates, 19 Ill. App. 470; Moses v. Ranlet, 2 N. H. 488; Graeff's Appeal, 79 Pa. St. 146; Kellock's Case, L. R. 3 Ch. App. 769. These latter cases, it is submitted, are correct, resting on the theory that the security is something collateral, and does not reduce the debt, but only secures the creditor pro tanto in case the debtor cannot pay.

EQUITY INJUNCTION TO RESTRAIN COLLECTION OF DEBT BY ASSIGNING CREDITOR. Defendant was indebted to plaintiff, and W. was indebted to defendant. Defendant made a written assignment to plaintiff of W.'s debt to him, and W. assented. Defendant then sued W. for the debt assigned and recovered, W. failing to protect himself by pleading the novation. Plaintiff now petitions for an injunction to restrain defendant from collecting the judgment. Held, that plaintiff still had his remedy at law against W., who had subjected himself to a double recovery. Injunction refused. Perry v. Thompson, 18 So. Rep. 524 (Ala.).

Plaintiff's rights of course are not prejudiced unless W. is insolvent, in which case the injunction should have been granted.

The plaintiff in this case twenty years after the testator's property had Held, that the action was not barred, since Crawford's Adm'r v. Smith's Ex'r, 23 S. E.

EQUITY STATUTE OF LIMITATIONS MISTAKE. claims under a will which was discovered been distributed among his next of kin. there was mutual and blameless mistake. Rep. 235 (Va.).

In this country the statute of limitations operates as a bar in equity, as well as law, ex suo vigore. But where through fraud or mistake it would be inequitable to permit it to bar the suit, courts of equity interpose, as in England. Fraud and mistake come within the same rule. Brooksbank et al. v. Smith, 2 Younge & Coll. 58; Hough v. Richardson, 2 Story, 659; Story's Equity Jurisprudence, § 1521 a.

EVIDENCE-CONFESSION - ADMISSIBILITY. - Held, that a confession to an officer, who informed his prisoner "that it might go lighter with him if he told all about" the crime, was admissible as evidence. Thomas v. State, 32 S. W. Rep. 771 (Tex.).

The decision is based upon the erroneous assumption that a positive promise is necessary in order to render a confession inadmissible. It might well have been held that the officer's words to the defendant furnished an inducement fatal to the trustworthiness of the confession, and this conclusion is authorized in the books. Com. v. Curtis, 97 Mass. 574; State v. York, 37 N. H. 175. Of course, were a positive promise made, the confession obtained thereby would be properly excluded. Such was the decision in the recent case of State v. Smith, 18 So. Rep. 482 (Miss.).

EVIDENCE- INSANITY. Defendant was indicted for burglary; plea insanity. Held, that evidence by the prisoner's mother that she had another son, an imbecile from birth, should be admitted. Schaeffer v. State, 32 S. W. Rep. 679 (Ark.).

The court cites People v. Garbutt, 17 Mich. 9, as directly in point, and the decision follows the weight of authority in this connection. Such evidence of a family trait is cumulative, and is only admissible in connection with and in support of other evidence tending to a direct proof of the same fact. This the court recognized in the present See Snow v. Benton, 28 Ill. 306; People v. Smith, 31 Cal. 466; and Wharton & Stilé's Medical Jurisprudence, §§ 375, 377.


EVIDENCE- HEARSAY CONTRADICTING DYING DECLARATIONS. - Held, that dying declarations may be impeached by proof of previous contradictory statements by the deceased. State v. Lodge, 33 Atl. Rep. 312 (Del.).

The general rule is that a witness can be discredited by proof of contradictory statements made out of court, only where he has been given an opportunity to explain. I Greenleaf on Evid., § 462. In accordance with this, such statements have been held inadmissible where it has been impossible to call the attention of the witness to them. Weir v. McGee, 25 Tex., Supp., 20, where the testimony was by interrogatories, and the witness not in court. Craft v. Comm., 81 Ky., 250, and Ayres v. Watson, 132 U. S. 394, where the witness had died. These cases seem closely in point, and the argument of the court here is not altogether satisfactory. It is that, since the defence is deprived of cross-examination in the matter of the dying declarations, the previous statements should be admitted without the usual foundation, in order to offset the loss. This sounds like an attempt to make a right of two wrongs. One judge dissents.

EVIDENCE-OTHER CRIMINAL ACTS TO PROVE INTENT. - Defendant was on trial for manslaughter. One Emma Hall died on February 3, 1895; her death was the result of an abortion. Deceased was shown to have gone to the house at which her death occurred, for the purpose of having a criminal operation performed. Defendant was shown to have attended her from January 25 until her death. Defendant was proved to have concealed and lied about the circumstances of Emma Hall's death. Held, that the testimony of three witnesses, that defendant had performed operations upon them at the house where deceased died, and about the same time, was properly admitted. People v. Seaman, 65 N. W. Rep. 203 (Mich.).

The testimony of these three witnesses tends to prove that defendant treated deceased with the purpose and object of procuring an abortion. Since this evidence has probative force tending to prove defendant's purpose or intent in his attendance upon deceased, the objection that to admit this evidence is to admit evidence of other criminal acts of defendant is not fatal. In Reg. v. Briggs, 2 Moody & R. 199, the defendant was on trial for robbery; a witness was allowed to testify that defendant had committed another robbery in the same vicinity, and about the same time as the robbery for which defendant was on trial. The authorities fully sustain the admission of the evidence objected to in the principal case. People v. Sessions, 58 Mich. 594; Kramer v. Com., 87 Pa. St. 299; Thayer v. Thayer, 101 Mass. 111; Reg. v. Gray, 4 F. & F. 1102; Reg. v. Dorset, 2 Cox C. C. 243; Reg. v. Garner, 3 F. & F. 681.

INSURANCE-MARINE - VALUED POLICY AGAINST FIRE-DAMAGE BY STRANDING.- A ship, insured by a valued policy against fire, became a constructive total loss through stranding, and while stranded was totally consumed by fire. Held, that the underwriters were liable, and that the valuation in the policy was binding. Woodside v. Globe Marine Ins., 12 The Times Law Rep. 97.

The principal question in the case would seem to be whether the ship, at the time of the fire, could still be fairly deemed a ship, or must be regarded as a mere collection of materials. The case was argued under what seems to have been an agreement supporting the former view. It bears an analogy to those in which a building, by reason of explosion, storm, or otherwise, has collapsed, and the ruins have caught fire and been consumed. The question in such cases is whether, at the time of the burning, the building may still be called such, or must be deemed merely a heap of rubbish, the law seeming in the first case to permit a recovery upon the policy, though for fire only. Nave v. Mut. Ins. Co., 37 Mo. 430; Evans v. Columbian Ins. Co., 44 N. Y. 146; May, Ins., § 412; Biddle on Ins., § 771. For the doctrine that the stated valuation determines the amount of the insurer's liability, see, in addition to the cases cited, Irving v. Manning, 1 H. L. C. 287.

JUDGMENT LIEN-PRIORITY ON AFTER-ACQUIRED LAND. - The plaintiffs and defendants both had judgments against a third party, who, after the judgments had been rendered, acquired the land in dispute. A statute provided that a lien should arise on any after-acquired land in favor of the judgment creditor. The defendants' judgment in this case was senior, and they claimed satisfaction of their judgment in full before the junior judgment of the plaintiffs should attach. Held, that the liens of the docketed judgments attaching to the land at the same moment, there should be no priority, and the proceeds of the land should be applied pro rata to the judgments. Moore et al. v. Jordan et al., 23 S. E. Rep. 259 (N. C.).

In Creighton v. Leeds, Palmer, & Co., 9 Or. 215, upon the same facts and under a similar statute priority of lien was allowed the senior judgment on the ground that, since the lien was an incident of the judgment, the priority of the lien would be coextensive with that of the judgment. This view seems sounder, and is maintained by a dissenting minority in the present case. Previous decisions in another State support neither of

these views, but give priority to the judgment creditor, who first proceeds to enforce his judgment. In one case this is explicitly based on the ground that the "writ and not the judgment created the lien." Bliss v. Clark, 39 Ill. 590; McDonald v. Crandall, 43 Ill. 231; Freeman on Judgments, § 355.

MUNICIPAL CORPORATIONS-COUNTIES - FAILURE TO REPAIR BRIDGE. — Held, in the absence of a statute imposing such liability, a county is not liable for injuries resulting from defects in a bridge, though the county is under a duty to keep it in repair, and the non-repair is due to the negligence of the county officers. Board of Com'rs of Jasper Co. v. Allman, 42 N. E. Rep. 206 (Ind.).

This decision overrules a long line of Indiana cases, beginning with House v. Montgomery Co., 60 Ind. 580 (1878), and extending to Parke Co. v. Wagner, 138 Ind. 609 (1894). The rule that a county is a subdivision of the State for governmental purposes, and is not liable for the negligence of its officers, unless expressly made so by statute, is recognized by an overwhelming majority of the decisions, both English and American. The rule seems to have originated in the case of Russell v. The County of Devon, 2 T. R. 667. The only jurisdictions now holding contra to the general rule are Iowa and Maryland. See Yordy v. Marshall Co., 80 Iowa, 405; Calvert Co. v. Gibson, 36 Md. 229. The opinion in the principal case contains a complete citation of the modern authorities.

PARTNERSHIP - TRANSFER OF PARTNER'S INTEREST AFTER INSOLVENCY RIGHTS OF FIRM CREDITORS. A. of the firm of A. & B. transferred his interest in the firm assets to B. after the firm was known to be insolvent. B., according to the view of the majority of the court, agreed to hold the assets in trust for the firm creditors. B. conveyed to C., who took with full notice of all the facts. C. used the conveyed property in his business under the name of C. & Co., holding B. out as his partner. In fact there was no partnership. Held, with a minority dissenting on both points, (1) that creditors of the ostensible firm of C. & Co., upon C.'s assignment in insolvency, were entitled to have the property used in C. & Co.'s business applied as firm assets to the payment of their claims; (2) that creditors of the original firm of A. & B. should come in against this property pari passu with the creditors of C. & Co. Thayer v. Humphrey, 64 N. W. Rep. 1007 (Wis.).

In re

Ordinarily, creditors of an ostensible partnership are entitled to priority of payment out of the property used in the business, upon the insolvency of the true owner. Rowland and Crankshaw, L. R. 6 Ch. Ap. 421; Ex parte Hayman, 8 Ch. Div. 11. In the present case, however, the creditors of C. & Co. should be postponed to the credi tors of A. & B. to the extent that the assets of A. & B. can be found in specie, or distinctly traced. If B. agreed to hold in trust, of course C. took as trustee for the firm creditors of A. & B. If there was no agreement to hold in trust still, as the conveyances of A. & B. were both made after the firm was known to be insolvent, both were void for fraud as against the firm creditors, who therefore have a prior lien on the original firm assets in the hands of C.'s assignees. Ex parte Mayon, 4 De G., J. & S. 664; In re Kemptner, L. R. 8 Eq. 286; Peyser v. Myers, 135, N. Y. 599 (semble); Lind. on Part. (6th ed.), 347, 716. It is not suggested in the case that the firm creditors of A. & B. were guilty of laches.

PERSONS WIFE'S SEPARATE ESTATE IN EQUITY-WHEN CREATED. Money which a husband allows his wife to acquire by the sale of poultry, etc., to use as she pleases, and of which he loses sight till it has been invested in real estate by her for eighteen months, forms her separate estate. If she refuses to complete the purchase of the land, and pleads coverture, the vendor can sell the land to reimburse himself for the amount unpaid by her. Snodgrass v. Hyder, 32 S. W. Rep. 764 (Tenn.).

At common law a wife had no separate estate. All her chattels and earnings vested in her husband outright. Equity gradually modified this harsh doctrine, and allowed a wife an estate in property acquired by her, treating the husband as a constructive trustee. 2 Kent, 134, 143. Under this rule she could recover property promised her by her husband from his heirs, provided the rights of creditors did not intervene. This was held in spite of the rule that husband and wife could not contract. Slansing v. Style, 3 P. Williams, 337. As there was no statute in Tennessee enlarging the power of a married woman to bind herself by contract except in regard to conveyance of her estate, the court was bound by the common law rule. But it thought there was sufficient evidence from which to imply a gift to the wife, and that consequently the money formed her separate estate in equity. The second point, viz., that the vendor could sell the estate to recoup himself for the unpaid purchase money, seems equally clear. The court's ruling that the vendor had no right to a personal judgment against her is without exception in view of the weakness of the Tennessee statute in regard to married women. And though there is a division of opinion on the question whether a wife's separate estate can be bound by implication on her contract, Murray v. Barlee,

3 Myl. & Keene, 209, holding that it can, and Yale v. Deverer, 22 N. Y. 451, that it cannot, the court's ruling that it could not in this case is scarcely doubtful, as the evidence to show any implication was slim.

PROPERTY COVENANT OF WARRANTY - MARRIED WOMEN'S ACT. - Defendant's wife owned real estate. Defendant lived on the land with his wife, and joined in her conveyance and covenant of warranty. The wife is dead. This is an action on the covenant by a remote grantee. Held, defendant is not bound. The covenant does not run with the land; the defendant having no such privity of estate as is essential to carry a covenant of warranty. Mygatt v. Coe, 42 N. E. Rep. 17 (N. Y.).

This case is interesting as showing one of the results of the Married Women's Act by which the wife holds absolute title to her real property as though she were unmarried. At common law the defendant would have been bound in this case, for he would have had an estate during coverture in his wife's property, and this would have constituted sufficient privity of estate to have carried the covenant with the land. Robertson v. Norris, 11 Q. B. 916; Beale v. Knowles, 45 Me. 479.

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PROPERTY — EASEMENT IN STREET - ABANDONMENT. — Plaintiff owned property abutting on a street over which the defendant company had erected an elevated road. This action was brought for damages for the obstruction of plaintiff's street easements. The defendant attempted to establish an abandonment of these easements by proof of the following facts. Plaintiff's lot had been owned by one L., who had brought suit against the present defendant for the same obstruction. While the suit was pending, L. conveyed to G., the conveyance being accompanied by an attempt on the part of L. to reserve to himself by an unrecorded instrument the street easements and the right of suit for their obstruction. G. conveyed the lot to the plaintiff, who had no notice of this agreement. Then L. settled his action against the defendant company, and gave them a release from all claims by reason of the operation of their road, and declaring that he had intended such release at the beginning of his action. Held, that there was no effectual abandonment by L.; that the unrecorded agreement between L. and G. was inoperative at law, and that the plaintiff was entitled to damages for the obstruction of his easements. Foote v. Metropolitan El. Ry. Co. et al., 42 Ñ. E. Rep. 181 (N. Y.).

This case is peculiar in its facts. The conclusion reached as to the abandonment, which is purely a matter of intention and of fact, seems correct. See Washburn on Real Property, 4th ed., vol. ii. p. 371, and cases cited. The plaintiff was of course unaffected by the unrecorded agreement between his predecessors in title, and the rights of property in the street, being appurtenant, passed with the abutting land.

PROPERTY LANDLORD AND TENANT ASSIGNMENT OF RENT REVERSION. - A. let premises to B. for five years. B. sublet a part of the premises to the defendant for the same time. Defendant assigned his lease to C., with covenant that his liability to B. should not be thereby altered. B. assigned back to A. all rentals due under his lease to defendant. A. then conveyed to plaintiff all his interest in land and existing leases held by him. C. failed to pay rent, and plaintiff sued defendant. Held, that, as B.'s lease to defendant terminated at same time as A.'s lease to B., leaving no reversion in B., B.'s assignment of rentals to A. amounted to an assignment of the lease of defendant, and this passed to plaintiff by A.'s subsequent assignment. Plaintiff therefore could sue defendant on latter's covenant to B., the effect of which made defendant primarily liable for the rent, and not as mere surety for C. Latta v. Weis, 32 S. W. Rep. 1005 (Mo.).

The contention of defendant's counsel was that B. retained a reversion because only the rentals were conveyed to A., and that A.'s assignment of his interest in the land gave plaintiff no right to the rentals which still belonged to A. The court seems properly to have held that, when B. parted with all beneficial interest in the land, to the very end of his own term, it amounted to a complete assignment.

PROPERTY LANDLORD AND TENANT-IMPLIED COVENANT FOR QUIET ENJOYMENT. - The defendant, having a lease for eight years in certain premises, sublet them for ten years to the plaintiff, acting in good faith and under a bona fide mistake; the word "demise" was not used in the sublease nor was there any express covenant for quiet enjoyment. The plaintiff, being evicted at the end of eight years by the superior landlord, brings action against his lessor for breach of implied covenants. Held: (1) A covenant cannot be implied unless the word " demise" is used. (2) If such a covenant were implied it would extend only during the estate of the lessor. Baynes v. Lloyd, [1895] 2 Q. B. 610.

The court expresses doubt on the first point. It has been held otherwise in this country. Duncklee v. Webber, 151 Mass. 408. As to the second point, the court relics

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