There is a sharp distinction between malicious prosecution and false imprisonment. See SALMOND, TORTS, 2 ed., 351. In the former, malice and lack of probable cause must be shown. Abrath v. N. E. Ry. Co., 11 Q. B. D. 440. In the latter, even honest mistake is in general no defense. See Lock v. Ashton, 12 Q. B. 871. The defendant in this case having probable cause is not liable for malicious prosecution. However, an arrest on suspicion of felony without warrant is primâ facie wrongful, and must be justified by showing authority to act, and reasonable action. A constable, having authority to act by virtue of his office, need only show that he acted reasonably. Beckwith v. Philby, 6 B. & C. 635. A private citizen has such authority only when a felony has in fact been committed. See 2 HALE P. C. 78; Siegel Cooper Co. v. Connor, 70 Ill. App. 116. In the principal case, the plaintiff's arrest for the crimes committed would then have been justified. But unless a party acts in reliance upon a justification, it cannot be set up. Regina v. Dadson, 4 Cox C. C. 358. It would seem to follow that the defendant can justify only by proving the crime charged; and that failing in this, he is liable for false imprisonment.

FALSE IMPRISONMENT CIVIL LIABILITY OF MINE OWNER FOR FAILING TO BRING EMPLOYEES UP FROM MINE. The plaintiff, employed in the defendant's mine, in breach of his contract, quit work at noon, and the defendant refused to bring the plaintiff to the surface, although notified of his desire to leave the mine. The plaintiff brought an action for false imprisonment. Held, that the plaintiff cannot recover. Herd v. Weardale Steel, C. & C. Co., [1913] 3 K. B.

771.

The principal case proceeds on the ground that there was no act of imprisonment. The omission to bring the plaintiff up from the mine cannot be so linked with the previous act of letting him down as to constitute a single act of imprisonment; for the acts of commission and omission are too far apart in time and nature to be conceived of as one. Hill v. Caverly, 7 N. H. 215. Nor is the defendant's position analogous to that of a locomotive engineer, whose omission to exercise control over the moving force is substantially a misfeasance. See Kelly v. Metropolitan Ry. Co., [1895] 1 Q. B. 944. A jailer, confining his prisoner longer than his legal sentence, has been held liable for false imprisonment. Withers v. Henley, Cro. Jac. 379; Mee v. Cruikshank, 86 L. T. Rep. N. s. 708. But practically the prison routine must cause the jailer to commit new misfeasances. Furthermore, in the principal case the prior act of lowering was not tortious because of the plaintiff's consent. See Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089. Thus the court seems clearly correct in holding that there was no false imprisonment.

The facts suggest the possibility of working out a relational duty on the part of the defendant to bring his employee to the surface. It has been held that a railroad company, having sent a gang of men to an isolated region in very cold weather, was bound to transport them to some point where they could get food and shelter. Shoemaker v. St. Paul & Duluth Ry. Co., 46 Minn. 39, 48 N. W. 559. Recovery has also been allowed where the superintendent of a coal mine failed to take proper measures to save the lives of miners caught in the mine when a fire had accidentally broken out. Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 50, 25 So. 793. In the principal case, the plaintiff, by the nature of his employment, was placed in a situation where his personal liberty was dependent on a means of exit within the defendant's exclusive control. It is possible to argue that not only the interest of personal safety but that of personal liberty should be secured by this relational duty of the master. On this supposition it would follow, from the cases cited, that a duty existed to bring the plaintiff up from the mine. Although the contract relation between the parties is at an end, as long as the dependent situation created by the employment exists, the employer must perform his relational duties.

Packet Co. v. McCue, 17 Wall. (U. S.) 508. For this reason the fact that the plaintiff had broken his contract is not here material. In any event such an employee could only demand to be taken up when reasonably convenient, in view of other mine operations—but this was the fact in the principal case.

ILLEGAL CONTRACTS - EFFECT OF ILLEGALITY - DEFENSE TO PURCHASER UNDER CONTRACT FOR ILLEGAL SALE. - The defendant agreed to buy "renovated" butter of the plaintiff, under a contract calling for a series of shipments. The evidence justified the inference that title would pass outside the jurisdiction at the time of shipment. After accepting and paying for several consignments, the defendant refused to receive any further deliveries. In an action on the contract, the defendant set up the failure of the plaintiff to mark his shipments in compliance with a local statute providing that "No person, etc., shall manufacture, sell, or offer for sale, or have in his possession with intent to sell butter known as process butter, unless the package in which it is sold is marked 'renovated butter.' All process butter shipped from other states shall be subject to the same regulations." (2 REM. & BAL. WASH. CODE, § 5447 e.) Held, that the plaintiff may recover in spite of the statute. Armour & Co. v. Jesmer, 136 Pac. 689 (Wash.).

The result is unimpeachable on the facts of the case. The contract would be performed in a jurisdiction beyond the operation of the statute. Braunn v. Keally, 146 Pa. 519, 23 Atl. 389. The statute makes illegal the selling and the possession with intent to sell, but says nothing as to a shipment into the state in pursuance of a sale. But, if the court is correct in assuming that the shipment of misbranded butter would be covered by the statute, it would seem that the plaintiff should not recover. There would have been no recovery for the price if the sale had been effected in the unlawful manner. Forster v. Taylor, 5 B. & Ad. 887; Pray v. Burbank, 10 N. H. 377. And the previous method of shipment overcomes the presumption that he would choose the lawful course sufficiently to justify the defendant in refusing to proceed. But the court reasons that the defendant may not have the benefit of this defense as to that portion of the contract which remained executory, because notice was not given in time to enable the plaintiff to perform lawfully. If the defense proceeded on the idea of relief to the defendant, this position would be tenable. But a defense constituted primarily for the benefit of the public is not forfeited in this way. See Church v. Proctor, 66 Fed. 240, 244. It is therefore submitted that if the statute covered the matter, the defendant was under no duty to receive the goods for the refusal of which action was brought. Buxton v. Hamblem, 32 Me. 448. See Gallini v. Laborie, 5 Durnf. & East 242.

INTERNATIONAL LAW - LEGATIONS AND DIPLOMATIC AGENTS IMMUNITY OF DIPLOMATIC AGENTS FROM SUITS: WHETHER WAIVED BY UNCONDITIONAL APPEARANCE. The defendant, an attaché of a foreign legation in England, had entered an unconditional appearance in a civil action regarding an undertaking in his private capacity. It did not appear that the defendant knew of his privilege of exemption from suit. Held, that the privilege was not waived by appearing. In re Republic of Bolivia Exploration Syndicate, 30 T. L. Rep. 78 (Ch. Div., Nov. 12, 1913).

It has long been a settled rule of law that foreign diplomatic representatives are exempt from all local processes in the country to which they are accredited. I KENT'S COMMENTARIES, 15, 38. The same immunity is given not only to an ambassador himself, but to his subordinates, family, and servants as well. See Respublica v. De Longchamps, 1 Dall. (Pa.) 120, 125; I HALLECK, INTERNATIONAL LAW, 354. It extends so far that the local law does not punish the ambassador, even when he conspires against the sovereign to whom he is accredited. See I WESTLAKE ON INTERNATIONAL LAW, 266. Whether or not

a violation of duty to the sovereign who sends him, participation in business ventures outside the official duty does not render the envoy liable to civil suit. Magdalena, etc. Co. v. Martin, E. & E. 94. The court in the principal case found that the defendant had not waived his immunity as a foreign diplomat, raising, but not squarely deciding, the interesting point whether or not he could have waived it. That an unconditional appearance does constitute a waiver seems to be the decision in Taylor v. Best, 14 C. B. 487. (But see the dictum apparently contra in Barbuit's Case, Cas. t. Talb. 281, 282.) See also I RIVIER, PRINCIPES DU Droit des GENS, 495, 496. It is submitted, however, that there should be no waiver, express or implied, without permission of the envoy's sovereign. It is the sovereign's business that the representative is sent abroad to do. One purpose of the privilege is that the business shall not be interfered with by local restrictions. See Barbuit's Case, supra, 282. Furthermore, it would also hazard a sovereign's dignity if his ambassador, even through his own volition, could place himself under temporary allegiance to a foreign power. See Schooner Exchange v. M'Faddon, 7 Cranch (U. S.) 116, 138. The ambassador should not be allowed to waive the privilege which attaches to the office, rather than to him as a person. Such waiver is forbidden American diplomats. See 4 MOORE'S INT. LAW DIGEST, 631. French authority supports the view suggested. Dalloz, 1907, 2: 281. See DESPAGNET, DROIT ÎNTERNATIONAL PUBLIC, 3 ed., 258. There are dicta of American courts to the same effect. See United States v. Benner, 24 Fed. Cas. 1084, 1087; Valarino v. Thompson, 7 N. Y. 576, 579.

JUDGMENTS - OPERATION AS BAR TO OTHER ACTIONS - JUDGMENT FOR DAMAGES TO Person as Bar to Recovery for Damage to PROPERTY. - By a contract of insurance, the owner of an automobile had agreed to assign to the plaintiff all rights for damage thereto. Both the automobile and the owner were injured by the same negligent act of the defendant. The owner having recovered damages for the injury to his person, the insurance company now sues for the injury to the automobile. Held, that the action may be maintained. Underwriters at Lloyd's Ins. Co. v. Vicksburg Traction Co., 63 So. 455 (Miss.). By the weight of American authority, one tortious act injuring a man as to his person and property gives rise to only one cause of action, with damage for two different sorts of injury; and judgment for the one injury bars a subsequent action for the other. King v. Chicago, M. & St. P. Ry. Co., 80 Minn. 83, 82 N. W. 1113; see cases collected 50 L. R. A. 161. Under this doctrine the owner in the principal case would have been precluded from bringing any action for the injury to his property. Since an assignee can have no greater right than his assignor (Savannah Fire & Marine Ins. Co. v. Pelzer Manufacturing Co., 60 Fed. 39), the plaintiff's action must be equally precluded. The court, however, purporting to accept the American doctrine, bases it entirely upon a policy which prevents a plaintiff vexing a defendant with two suits when one would suffice, and holds this policy inapplicable where the suits are brought by different parties. By thus restraining the operation of the doctrine that there is but one cause where the same act produces two kinds of damage, the court attains a most desirable result. But it would seem equally expedient and sounder on theory to accept the English view acknowledging the existence of two causes of action (see Brunsden v. Humphrey, 14 Q. B. D. 141; 24 HARV. L. REV. 492), but to limit its application by the policy that where one action suffices, a plaintiff may sue but once although two dissimilar rights are injured.

LAW AND FACT - PROVINCES OF COURT AND JURY-WHETHER LOGICAL CONNECTION A PRELIMINARY QUESTION OF FACT FOR COURT. The plaintiff was injured by a defective appliance furnished by the defendant, his employer.

To show that the plaintiff had notice of the danger, the defendant offered evidence of a conversation with respect to the defect, within twenty yards of the plaintiff. The court below excluded the evidence, because it was not satisfied that the plaintiff heard the conversation. Held, that whether the plaintiff heard the conversation was a question of fact for the court. Gila Valley, G. & N. Ry. Co. v. Hall (U. S. Sup. Ct., Case No. 68, Jan. 5, 1914).

Where a rule of evidence excludes logically probative matter unless it has satisfied certain prescribed tests, there is a preliminary question of fact for the court, whether these requirements have been complied with. Boyle v. Wiseman, 11 Ex. 360; Comm. v. Brewer, 164 Mass. 577, 42 N. E. 92. This principle should not be relaxed because of the fortuitous circumstance that the fact which is presented for the court's decision happens to be the precise issue upon which the jury is to pass. Doe d. Jenkins v. Davies, 10 Q. B. 314; State v. Lee, 127 La. 1077, 54 So. 356. Contra, Respub. v. Hevice, 3 Wheeler's Cr. Cas. (Pa.) 505. The weight to be given such evidence, of course, lies with the jury. Welstead v. Levy, 1 M. & Rob. 138; Comm. v. Brewer, supra. But the admission of the evidence rejected in the principal case would contravene no general rule of exclusion. The conversation regarding the defect is offered as the secondary link in a chain of circumstantial proof. The court requires, as a condition precedent to its admission, that the primary link - the fact that the plaintiff heard the conversation be proved to the satisfaction of the judge. It is submitted, with deference, that the application of such a test is a usurpation of the jury's function. The secondary matter should come in, provided evidence is offered in support of the primary proposition, from which the jury, as reasonable men, could find the connection which the proponent of the evidence seeks to establish. Stowe v. Querner, L. R. 5 Ex. 155; Comm. v. Robinson, 146 Mass. 571, 16 N. E. 452.

MODIFICATION

MUNICIPAL CORPORATIONS FRANCHISES AND LICENSES ALLOWING INCREASE IN RATES. — A municipality was empowered to award franchises only to the best bidder after due advertisement. Having awarded a franchise to a telephone company upon its agreement to furnish service to subscribers at a given rate, it subsequently relieved the company of this stipulation, allowing it to charge increased rates. Held, that the modification is valid. Lutes v. Fayette Home Telephone Co., 160 S. W. 179 (Ky.).

Where a party, as sole beneficiary of a contract, is vested with direct rights against the promisor, he cannot be deprived of these rights by any agreement between the contracting parties. Henderson v. McDonald, 84 Ind. 149. See WALD'S POLLOCK ON CONTRACTS, 3 ed., 273. But such rights will not vest unless the parties to the contract so intend. House v. Houston Waterworks Co., 88 Tex. 233, 31 S. W. 179. In the principal case, the municipality clearly intended to secure benefits for its citizens. However, aside from any question of rights in the franchise contract, the citizens have direct rights against the promisor to compel performance of its common law obligation as a publicservice company. Webster v. Nebraska Telephone Co., 17 Neb. 126, 22 N. W. 237. It would seem reasonable to suppose that the municipality intended merely to create a public-service company against which the citizens would have such rights, but to remain itself dominus of the contract. In such a case, the right of the municipality to agree with the co-contractor on alterations cannot be denied. Meech v. City of Buffalo, 29 N. Y. 198. However, so material an alteration as was here made would seem in effect the granting of a new franchise. By its charter the city was required to award franchises only after due advertisement and to the highest bidder. Unless, therefore, the defendant would probably have been the only bidder for a new franchise, so that advertisement would have been a mere matter of form (City of Hartford v. Hartford Electric Light Co., 65 Conn. 324, 32 Atl. 925), the decision would seem incorrect.

A

PERSONS - RIGHT TO DOWER SECRET ANTE-NUPTIAL CONVEYANCE. widower, before a second marriage, made a voluntary conveyance of land to an adult daughter by his former wife, without the knowledge of his fiancée. Held, that the second wife may claim dower in the land conveyed. Deke v. Huenkemeier, 260 Ill. 131, 102 N. E. 1059; McAulay v. McAulay, 79 S. E. 785 (S. C.).

For a discussion of the principles involved, see NOTES, p. 474.

PHYSICIANS AND SURGEONS - SURGEON'S LIABILITY FOR NEGLIGENCE OF HOSPITAL NURSE AFTER OPERATION. - A nurse attached to the hospital in which the defendant had operated on the plaintiff, negligently failed to remove a gauze drain. The plaintiff sues the defendant surgeon. Held, the surgeon is not responsible. Hunner v. Stevenson, 46 Chi. Leg. N. 163 (Md.).

A specialist is not an absolute insurer. He is held to that degree of skill and knowledge ordinarily possessed by physicians in similar localities who have devoted special study to the disease, having regard to the existing state of scientific knowledge. Baker v. Hancock, 29 Ind. App. 456, 63 N. E. 323. The position of a specialist who attends a hospital only to operate is that of independent contractor. Harris v. Fall, 177 Fed. 79, 85. During an operation he is in control. Hillyer v. St. Bartholomew's Hospital, [1909] 2 K. B. 820. For the negligence of the attendants while under his direction he should be responsible. Jones v. Scullard, [1898] 2 Q. B. 565; Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381. Moreover, if by reason of his unique knowledge he ought to know that some unusual treatment would be advisable, his failure to have it applied would seem to be a breach of that duty of care up to which he is held. After the operation the care of the patient devolves on the hospital only. Harris v. Fall, supra; Baker v. Wentworth, 155 Mass. 338, 29 N. E. 589. The principal case is in accord with this view. But even after the operation, if the specialist ought to know that extraordinary measures would be expedient, it seems that he should be responsible for injuries resulting from his failure so to direct.

RES JUDICATA - PERSONS CONCLUDED CO-DEFENDANTS: DECREE IN FAVOR OF ONE CO-DEFENDANT AS CONCLUSIVE IN LATER SUIT BY OTHER CoDEFENDANT. In a former suit a debtor and three co-sureties had been sued together. Two of the sureties were there found not liable and the third paid the whole debt. To a suit by the latter for contribution, the two former pleaded the previous suit as a bar. Held, that the question of their original liability was not res judicata. Central Banking & Security Co. v. United States Fidelity & Guaranty Co., 80 S. E. 121 (W. Va.).

The principles of res judicata are applied in two classes of cases. See Cromwell v. County of Sac, 94 U. S. 351, 352. In one class, the courts refuse to allow the same cause of action to be litigated again. Young v. Farwell, 165 N. Y. 341, 59 N. E. 143. But the doctrine of res judicata also includes the rule that any material point actually decided in one suit cannot be re-litigated where the same parties are opposed to each other in both suits. Wright v. Griffey, 147 Ill. 496, 35 N. E. 732; Lynch v. Swanton, 53 Me. 100. There seems no reason for a different rule when the parties were co-defendants in the first suit, if, as in the case of co-sureties, the judgment in favor of one defendant could have been appealed against by the losing co-defendant on the ground that his own liability was thereby increased. Ruff v. Montgomery, 83 Miss. 185, 36 So. 67. Policy requires that a question once judicially passed upon be final as to all parties who had an opportunity to litigate that question. In the principal case it is necessary for the plaintiff to prove that he and the defendants were liable as co-sureties. Bulkeley v. House, 62 Conn. 459, 26 Atl. 352. Robinson v. Boyd, 60 Oh. St. 57, 53 N. E. 494. If the former case had decided they were co-sureties, this finding would be evidence in the suit for