Ilwaco Ry. & Nav. Co. v. Oregon Short Line & U. N. R. Co., 57 Fed. 673. Contra, Pioneer Tel. & Tel. Co. v. Grant County Rural Tel. Co., 119 Pac. 968 (Okla.). On this ground the principal case is sustainable. Cases where the power of eminent domain is actually exercised are of course distinguishable. Billings Mut. Tel. Co. v. Rocky Mountain Bell Tel. Co., 155 Fed. 207.

RAILROADS LIABILITY FOR FIRES CONTRIBUTORY NEGLIGENCE OF ABUTTING LANDOWNER. - The plaintiff stacked flax straw on his own land near the defendant railroad's right of way. It was destroyed by fire caused by the negligent escape of sparks from a locomotive. Held, that the defense of contributory negligence is not open to the defendant. Le Roy Fibre Co. v. Chicago, Milwaukee & St. P. Ry. Co., U. S. Sup. Ct., Feb. 24, 1914.

The liability of a railroad for fires caused by sparks escaping from a locomotive ordinarily depends on negligence. Flinn v. New York Cent. & H. R. R. Co., 142 N. Y. 11, 36 N. E. 1046; Bernard v. Richmond, F. & P. Ry. Co., 85 Va. 792, 8 S. E. 785. By statute in some states the burden of proving that there was no negligence is on the railroad. Green Ridge R. Co. v. Brinkman, 64 Md. 52, 20 Atl. 1024. Other statutes, however, impose an absolute liability. Union Pacific Ry. Co. v. De Busk, 12 Colo. 294, 20 Pac. 752. Under such statutes the railroad is practically an insurer of the safety of adjoining property and the plaintiff's negligence is immaterial. West v. Chicago & N. W. Ry. Co., 77 Ia. 654, 35 N. W. 479, 42 N. W. 512. See 25 HARV. L. REV. 463, 465. When the railroad's liability depends on negligence, the question arises whether it is contributory negligence in a landowner to allow the accumulation or deposit of inflammables near the right of way. Even admitting it negligent, the last clear chance doctrine is clearly applicable and the plaintiff should not be barred. Davies v. Mann, 10 M. & W. 546. See 14 HARV. L. REV. 74. But it does not seem that depositing property near the right of way constitutes negligence. The landowner may assume the risk of damage from fire where it is caused not by the railroad's negligence but by pure accident; but this, in the absence of statute, would furnish no ground for recovery. Where the damage is caused by negligent sparks the situation is essentially different. The landowner is entitled to assume that the railroad will not be negligent, and to place on him a duty to guard against the railroad's negligence practically subjects his land to an easement in favor of the railroad. Accordingly the weight of authority agrees with the principal case. Chicago & E. R. Co. v. Smith, 6 Ind. App. 262, 33 N. E. 241; Alabama & V. Ry. Co. v. Sol Fried Co., 81 Miss. 314, 33 So. 74; Kellogg v. Chicago & N. W. Ry. Co., 26 Wis. 223. Contra, Murphy v. Chicago & N. W. Ry. Co., 45 Wis. 222; Omaha Fair & Exposition Ass'n v. Missouri Pac. R. Co., 42 Neb. 105, 60 N. W. 330.

RULE IN SHELLEY'S CASE - APPLICATION OF ARCHER'S CASE IN AMERICA. A deed in substance conveyed property to Sarah for life and "upon her death to the heirs of the body of said Sarah, their heirs and assigns. Held, that the rule in Archer's case applies, and that the heirs of the body of Sarah take a contingent fee by way of purchase. Etna Life Ins. Co. v. Hoppin (C. C. A., 7th Circ. Not yet reported).

For a discussion of the application of the rule in Archer's case in America, see page 673 of this issue.

TAXATION GENERAL LIMITATIONS ON THE TAXING POWER - CONSTITUTIONAL RESTRICTIONS - TAXATION OF FOREIGN PERSONALTY AND DUE PROCESS OF LAW. A federal statute imposed a tax upon the owners of foreign-built pleasure yachts. The defendant, though domiciled within the United States, had kept his yacht in Europe since 1904, and objected to the

tax as a violation of the Fifth Amendment. Held, that the tax is constitutional. United States v. Bennett, 34 Sup. Ct. 433.

For a discussion of the constitutional restrictions on taxation, see this issue of the REVIEW, p. 675.

TORTS DAMAGE TO CONTRACT RIGHT BY ACT OF THIRD PARTY RIGHT OF ACTION FOR SEDUCTION OF FIANCÉE. The defendant seduced the plaintiff's affianced wife. The plaintiff sues, alleging that the defendant "maliciously interfered with the marriage contract then subsisting, causing the plaintiff properly to break it." The defendant demurs. Held, that the demurrer be sustained. Davis v. Condit, 144 N. W. 1089 (Minn.).

A promise to marry creates a certain confidential relation above that of the ordinary relation of promisee and promisor. Kline v. Kline, 57 Pa. St. 120; Ward v. Ward, 63 Oh. St. 125, 57 N. E. 1095. But a man has no right to the services of his fiancée, and it seems clear that there is no such status as to give the man a right of action for interference with it, analogous to the action for criminal conversation. However, chastity is at least an implied condition in a contract to marry, and the woman's lapse excuses the man's performance. Irving v. Greenwood, I Car. & P. 350; Von Storch v. Griffin, 77 Pa. St. 504. Accordingly the plaintiff should have an action against the defendant who has intentionally (or maliciously) deprived him of the benefit of a contract, by preventing the happening of the condition. Cf. Morgan v. Andrews, 107 Mich. 33, 64 N. W. 869; Chipley v. Atkinson, 23 Fla. 206, 1 So. 934. It is submitted, moreover, that the woman impliedly promised to remain chaste. See Sheahan V. Barry, 27 Mich. 217, 222. Therefore a lapse from virtue is a breach of contract and should give the man a right of action against the fiancée and consequently also against one who has intentionally procured the breach. Lumley v. Gye, 2 El. & Bl. 216; Walker v. Cronin, 107 Mass. 555. Regarding the defendant's conduct either as the preventing of the happening of a condition or as the procuring of a breach, this result seems clear on authority, provided that the defendant acted intending to interfere with the contract. It is hard to see on principle why the same result should not follow in any case where the defendant acts knowing of the contract, or even when he ought to know of it, but the authorities seem to stop short of this. See 24 HARV. L. REV. 397. However, it has been suggested that to allow an action against a third party who has been instrumental in causing a breach of a contract to marry would be "subversive of proper liberty of marriage" and would "degrade rather than add to the sanctity of the marriage relation." Editorial in N. Y. L. J. Volume L, at p. 2884.

NEGLIGENT INTERFER

TORTS UNUSUAL CASES OF TORT LIABILITY ENCE WITH PROBABLE EXPECTANCY OF BUSINESS. The neighborhood around the plaintiff's grist mill was depopulated because of malaria arising from waters backed up by the defendant power company's dam. The plaintiff sues for the loss of business due to the departure of his customers. Held, that he cannot recover for this. Central Ga. Power Co. v. Stubbs, 80 S. E. 636 (Ga.).

Any one who has been injured by another acting intentionally and without justification may recover for the injury inflicted. See Skinner & Co. v. Shew, [1893] 1 Ch. 413, 422; Aikens v. Wisconsin, 195 U. S. 194, 204. This general principle is illustrated by the actions for intentionally procuring a breach of contract and for an intentional interference with a probable expectancy of business, where the specific injury does not fall within any of the historical categories of tort liability. Lumley v. Gye, 2 E. & B. 216; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230. The duty to use due care to avoid causing unintended harm to others should in any symmetrical system

be equally comprehensive. See POLLOCK ON TORTS, 9 ed., 22 et seq.; s. c. SalMOND ON TORTS, 3 ed., 24. If recovery may be had for a certain injury, when it is intentionally inflicted, it should likewise give rise to an action when it is caused by negligent conduct. Consequently there seems no rational explanation for the refusal of most courts to allow recovery against one who fails to use due care in a situation where it is foreseeable that such failure will jeopardize another's contract rights. Anthony v. Slaid, 52 Mass. 290; Byrd v. English, 117 Ga. 191, 43 S. E. 419. The principal case invites the same criticism. The court would not refuse to take cognizance of this sort of damage if it were intended. The foreseeability of harm to a class of which this plaintiff is one, raised a duty to abstain from certain conduct; and persistence in it is the direct cause of the very injury which was foreseeable. Metallic Com. Co. v. Fitchburg R. Co., 109 Mass. 277. The refusal of most courts to apply the general principle here suggested is due to a conservative dread of extending liability and stimulating litigation. But there would seem to be no ground for such fears, if recovery is limited to situations like that disclosed in the principal case, where the duty and the causation are clear.

TRANSFER OF STOCK COLORABLE ASSIGNMENT TO QUALIFY ASSIGNEE AS DIRECTOR: RIGHTS OF CREDITORS OF ASSIGNEE. The plaintiff caused one share of her stock in a corporation to be registered in the name of her son-inlaw in order to make him eligible to the office of director under a statute requiring directors to be stockholders. The defendant attached the share of stock with the corporation as the property of the registered holder. The plaintiff, alleging she is the beneficial owner, seeks to enjoin the attachment. Held, that the injunction be granted. Gray v. Graham, 89 Atl. 262 (Conn.).

Ordinarily in a contest between a creditor of the registered owner of stock and one who has the beneficial interest, the latter is preferred. Broadway Bank v. McElrath, 13 N. J. Eq. 24; Lund v. Wheaton Co., 50 Minn. 40, 52 N. W. 268; Hazard v. National Exchange Bank, 26 Fed. 94. This view is a consequence of the almost universal rule that an attaching creditor is not a bonâ fide purchaser. Moreover, quite apart from this rule, the doctrine would be justified by the demands of business convenience. Of course, the creditor cannot claim to have been misled by the form of registration, since the stock books are for the information of the corporation only. There is no common-law rule that a director be a stockholder. Wright v. Springfield & New London Railroad Co., 117 Mass. 226. At the present time, however, this is almost universally required by statute or by-laws. It is held in several jurisdictions that this means only that a director must be the registered owner. In re Ringler, 145 App. Div. 361, 130 N. Y. Supp. 62; Pulbrook v. Richmond Consolidated Mining Company, 9 Ch. Div. 610. Other jurisdictions require that the director be the beneficial owner, since the purpose of the provision is to insure the election of men whose interests will induce them to conduct the business for the benefit of the corporation and to prevent the election of mere dummies doing the will of concealed principals. Bartholemew v. Bentley, 1 Oh. St. 37. If the latter view is correct the plaintiff, in the principal case, by his conduct, participated in the violation of the policy of the law, and on the familiar principle of clean hands he should have no relief in a court of equity. Most of the cases holding the contrary view involve the breach only of a by-law. In such a case it might be said that there is a wrong to the corporation only and that no third party should be allowed to take advantage of it collaterally. Cooper v. Griffin, [1892] 1 Q. B. 740; In re The Blakely Ordnance Company, 25 W. R. III. Lanzan v. Francklyn, 20 N. Y. Supp. 404 (City Ct., Brooklyn). But in the principal case, although the violation of a statute is involved, the court, while deliberately denouncing the action of the plaintiff as a wrong to the public

as well as to the corporation, reaches the seemingly inconsistent result of giving the wrongdoer equitable relief.

USURY - FORFEITURES -RELEASE OF RIGHT TO SUE FOR PENALTY. - In an action to recover for usury paid, the defendant pleaded a release of all claims for usury. The consideration for the release was a fresh usurious loan. Held, that the release is binding. Cotton v. Beatty, 162 S. W. 1007 (Tex.).

The right to recover usury paid may be waived by a release given for good consideration. Broadwell's Adm'rs v. Lair, 10 B. Mon. (Ky.) 220; Wing v. Peck, 54 Vt. 245. When, however, as in the principal case, the consideration for the release is a fresh usurious loan, the whole transaction should be void, and the release should be ineffective. International Building & Loan Ass'n v. Biering, 86 Tex. 476, 25 S. W. 622. Indeed, releasing the claim is in effect an added sum paid for the fresh loan and might well in itself change a legal rate of interest into an usurious rate. Cf. Schroeppel v. Corning, 5 Denio (N. Y.) 236, 247. The result of the principal case is to cure usury with usury. It seems indeed strange that a court should be deceived by so transparent a device for evading the law.

WILLS CONSTRUCTION PARTICULAR. WORDS: "CHILDREN" HELD TO MEAN ONLY LEGITIMATE CHILDREN. The testatrix by will left property in trust for "all or any the children or child" of her brother. He had six illegitimate children by a woman who was commonly accepted as his wife, and two legitimate children by a subsequent marriage. The testatrix supposed the children were all legitimate. Held, that only the two legitimate children are entitled. In re Pearce. Alliance Assurance Co. v. Francis, [1914] 1 Ch. 254 (C. A.).

The principal case illustrates the operation of the well-established rule of construction that the word "children" in a will means, prima facie, legitimate children. Cartwright v. Vawdry, 5 Ves. 530; Collins v. Hoxie, 9 Paige (N. Y.) 81; Heater v. Van Auken, 14 N. J. Eq. 159. See 2 JARMAN ON WILLS, 5 Am. ed., 786, 6 Eng. ed., 1748; 2 WILLIAMS ON EXECUTORS, 7 Eng. ed., 1099. The cases, however, allow this presumption to be rebutted in but two ways. The illegitimate may take if the language of the will shows such an intent, either expressly, or by necessary implication, as, for example, "all the children of her body." Sullivan v. Parker, 113 N. C. 301, 18 S. E. 347. See Hill v. Crook, L. R. 6 H. L. 265, 283. Mention of the children by name is likewise an example of this class. Meredith v. Farr, 2 Y. & C. Ch. 525; Williams v. MacDougall, 39 Cal. 8o. Or the presumption may be overcome if there are no legitimate children, and the particular legacy or devise would otherwise fail. In re Eve, [1909] 1 Ch. 796; Gardner v. Heyer, 2 Paige (N. Y.) 11. See Hill v. Crook, supra, 282. But the House of Lords refused to include within the latter class a case where the testator, when the will was made, might possibly have contemplated lawful children, although none in fact were ever born. Dorin v. Dorin, L. R. 7 H. L. 568. See Ellis v. Houston, L. R. 10 Ch. Div. 236, 243. Extrinsic evidence of intent to include illegitimates is generally held inadmissible. Ellis v. Houston, supra; Collins v. Hoxie, supra. Thus the court here was clearly bound by authority. As an original question, however, it would seem that this presumption should be rebuttable by evidence of the circumstances under which the will was executed. See In re Scholl's Estate, 100 Wis. 650, 661, 76 N. W. 616, 619; 4 WIGMORE, EVIDENCE, § 2463.

WITNESSES IMPEACHMENT

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CHARACTER EVIDENCE TO SUSTAIN WITNESS IMPEACHED BY ADMISSION OF FORMER CONVICTION ON CROSS-EXAMINA

TION. - The plaintiff, as a witness in his own behalf, admitted upon crossexamination that he had been convicted of the crime of forgery and served a term in the state prison. On the theory that his character had been impeached, he then sought to introduce evidence of his general reputation for truth. Held, that the evidence is inadmissible. Derrick v. Wallace, 145 N. Y. Supp. 585 (Sup. Ct. App. Div.).

Evidence of a witness's reputation for truth is not admissible until his character has been impeached. State v. Owens, 109 Ia. 1, 79 N. W. 462. Contradictory evidence, or proof of inconsistent statements out of court, or inconsistencies elicited on cross-examination, are as consistent with mistaken observation as with untruthfulness, and, if they involve the character of the witness at all, do so only incidentally. Thus, in these situations it is held not worth while prolonging the trial with evidence of his good reputation. Russell v. Coffin, 8 Pick. (Mass.) 143; Tedens v. Schumers, 112 Ill. 263. Contra, George v. Pilcher, 28 Gratt. (Va.) 299. Where, however, the attack is directed at the witness himself, by proof of collateral matter showing him to be the kind of man whom the jury ought not to believe, the party calling him should be permitted to sustain the witness's character by evidence of his reputation for veracity. Webb v. State, 29 Oh. St. 351. And although the attack is by proof of specific, discrediting acts, nevertheless his character is directly involved. Gertz v. Fitchburg R. R., 137 Mass. 77. The suggestion of the principal case that, where these facts are elicited on cross-examination the only method of rehabilitation should be by redirect examination to explain them, is unsound. The only bearing of these former crimes upon the credibility of his testimony is by inference to the witness's bad character. Kraimer v. State, 117 Wis. 350, 93 N. W. 1097; People v. Amanacus, 50 Cal. 233. Where, as in the principal case, the discrediting acts occurred some years back, the witness should at least be permitted to show that he has since acquired a good reputation for truth. Shields v. Conway, 133 Ky. 35, 117 S. W. 340; 2 WIGMORE, EVIDENCE, § 1117. For a review of the authorities, see 2 WIGMORE, EVIDENCE, § 1106.

BOOK REVIEWS.

THE PRINCIPLES OF JUDICIAL PROOF. By John Henry Wigmore. Boston: Little, Brown, and Company. 1913. pp. xvi, 1179.

This important and most interesting book "aspires to offer, though in tentative form only, a novum organum for the study of Judicial Evidence." No one living has such qualifications for this work as Professor Wigmore, and by his present attempt he has not a little increased the great debt which scholars and practitioners already owe him.

The introduction emphasizes the distinction between Proof in the general sense - the process of persuading the mind by reasoning — and Admissibility - determined by rules of law aimed to protect the tribunal from erroneous persuasion and waste of time. These rules of admissibility, with which our law of evidence is concerned, "are destined to lessen in relative importance during the next generation or later. Proof will assume the important place; and we must therefore prepare ourselves for this shifting of emphasis." The experience of continental Europe in its change from "the ancient worn-out numerical system of 'legal proof"" to "the so-called 'free proof,' namely, no