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the President of the United States after his first conviction. He was subsequently convicted of another felony, and sentenced to increased punishment under the statute. Held, that no rights of the defendant under the Constitution of the United States are infringed. Carlesi v. New York (Supreme Court of the United States, April 6, 1914).

Having in earlier decisions squarely held that the increased penalty is in no sense a punishment for the prior crime, the United States Supreme Court seems clearly right in deciding that the defendant was not put twice in jeopardy for the same offense or deprived of any other right under the Federal Constitution. McDonald v. Massachusetts, 180 U. S. 311; Graham v. West Virginia, 224 U. S. 616. The Supreme Court properly refused to review the question as to the construction of the state statute. For a discussion of the question whether the state statute providing an increased penalty ought to be construed to cover the situation in the principal case, see 26 HARV. L. REV. 644 (on the same case in the lower court).

"GOING

PUBLIC SERVICE COMPANIES - VALUATION FOR RATE PURPOSES VALUE" AS PART OF PRESENT VALUE. In a proceeding before the commission to fix the relator's rates, the question arose whether, in estimating the present value of the relator's property, an allowance should be made for going value. Held, that such an allowance must be made. People ex rel. Kings County Lighting Company v. Willcox, 104 N. E. 911 (N. Y.).

The principal case is an important addition to the law on going value for rate purposes, a subject upon which there has been considerable confusion. See NOTES, p. 744.

SPECIFIC PERFORMANCE — Defenses -EFFECT OF THE PRESUMPTION OF DEATH UPON MARKETABILITY OF TITLE. In a suit for specific performance, the marketability of the vendor's title was attacked on the ground that there was a possibility of a curtesy interest in one who, if living, would be seventy-two years of age, but who had twenty-five years previously left home for the West. At the time he had been in good health and on good terms with his family and corresponded with them for two years after his departure, but then without explanation, communications from him suddenly stopped. All efforts to locate him had failed. Held, that specific performance will not be granted. Cerf v. Diener, 210 N. Y. 156, 104 N. E. 126.

Where one has been absent from home for seven years without being heard from, a presumption arises that the absentee is dead. Stockbridge, Petitioner, 145 Mass. 517, 14 N. E. 928; In re Truman, 27 R. I. 209, 61 Atl. 598. But this presumption is always rebuttable. Flynn v. Coffee, 12 Allen (Mass.) 133; Policemen's Benevolent Ass'n v. Ryce, 213 Ill. 9, 72 N. E. 764. Accordingly, the rule would not aid in deciding the marketability of a given title. Chew v. Tome, 93 Md. 244, 48 Atl. 701. See 21 HARV. L. REV. 374. For the commonly accepted principle is that if competent persons would have reasonable doubt concerning the vendor's title, a purchaser will not be compelled to accept a conveyance. Pyrke v. Waddington, 10 Hare 1; Close v. Stuyvesant, 132 Ill. 607, 24 N. E. 868; Vought v. Williams, 120 N. Y. 253, 24 N. E. 195. And such reasonable doubt might exist in spite of the effect upon other issues of the presumption raised by the length and circumstances of absence. Decisions tend to recognize this. If, as in the principal case, the only evidence be unexplained absence, and the age of the absentee, if living, would not be beyond belief, the vendor cannot have specific performance. Vought v. Williams, supra; Chew v. Tome, supra. If, however, there be corroborative evidence, such as illness or exposure to danger, or the age of the absentee would be beyond belief, the title may be marketable. Cambrelleng v. Purton, 125 N. Y. 610, 26 N. E. 907; McComb v. Wright, 5 Johns. (N. Y.) 263.

TAXATION GENERAL LIMITATIONS ON THE TAXING POWER -FEDERAL AGENCY: TAXATION BY STATES of Bonds oF A MUNICIPAL CORPORATION IN FEDERAL TERRITORY. In taxing the surplus of a savings bank in the state, the bonds issued by municipalities located in Indian Territory and in the Territory of Oklahoma were included. Held, that a tax on such bonds, issued by agencies of the Federal Government, is invalid. Farmers etc. Bank v. Minnesota, 232 U. S. 516, 34 Sup. Ct. 354.

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The states cannot burden by taxes the exercise of federal functions. Culloch v. Maryland, 4 Wheat. (U. S.) 316. Conversely the federal government cannot tax agencies of the states. Collector v. Day, 11 Wall. (U. S.) 113. This implied restriction on the taxing power of the sovereignties under the Constitution is due to the conception that both the state and the nation in its sphere must be entirely free of control by the other. See I COOLEY, TAXATION, 3 ed., 129 et seq.; COOLEY, CONSTITUTIONAL LIMITATION, 7 ed., 682. This exemption, however, only extends so far as is necessary to protect the efficient exercise of the power in question, it is not enough that the property merely belong to a federal agency. Thus the exemption does not cover property owned by a railroad company incorporated by the United States though it would vitiate a tax on its operation. Railroad Co. v. Peniston, 18 Wall. (U. S.) 5. See 23 HARV. L. REV. 380. Similarly it might be argued that there is no substantial interference with the borrowing power of the United States in the taxation of the bonds of municipalities in federal territory and that, therefore, such bonds fall without the exemption. But it is settled that property owned by a municipality within a state cannot be taxed by the federal government since it is part of the machinery directly used by the state in carrying on its governmental functions. United States v. Railroad Co., 17 Wall. (U. S.) 322. Furthermore, bonds of a state municipality are not to be included in estimating a Federal Income Tax assessed against the holder. Pollock v. Farmers Loan & Tr. Co., 157 U. S. 429, 584. The principal case is merely the converse of this latter case and therefore seems clearly right. To allow a tax upon the bonds would impair the borrowing power of the governmental agency. However, a distinction might be drawn between bonds issued by a municipality in its capacity of a governmental facility, and those issued in the exercise of its private undertakings, for example, the building of a water works. Cf. South Carolina v. United States, 199 U. S. 437, 26 Sup. Ct. 110.

TORTS UNUSUAL CASES OF TORT LIABILITY - DAMAGE FROM NATURAL CONDITION OF ADJOINING PREMISES.- A tree which had grown naturally on the defendant's land, decayed and fell upon the plaintiff's house. The plaintiff had warned the defendant of the condition of the tree. Held, that he may not recover. Reed v. Smith, 27 West. L. R. 190 (Ct. App., Brit. Col.). The responsibility of a landowner for damage from acts which he does upon his property ranges from absolute liability at the one extreme to entire impunity at the other. Fletcher v. Rylands, L. R. 1 Ex. 277; Middlesex Co. v. McCue, 149 Mass. 103, 21 N. E. 230. Lord Holt said it was an indictable nuisance for an owner to permit the natural condition of his premises to injure his neighbor. King v. Wharton, 12 Mod. 510. His authority has been accepted in only one modern case. Proprietors of Margate Pier v. Margate, 20 L. T. R. N. s. 564. Even in England, where the law is not so impregnated with the doctrine that fault is essential to liability as in the United States, the courts refuse to hold the landowner unless his act has contributed to the condition. Giles v. Walker, L. R. 24 Q. B. 656; Hodgson v. York, 28 L. T. R. N. S. 836. American authority also unanimously supports the principal case. Mohr v. Gault, 10 Wis. 513; Roberts v. Harrison, 101 Ga. 773, 28 S. E. 995; criticized in 12 HARV. L. REV. 63. The superior practical wisdom of Lord Holt's position is impressive in view of results like the principal case.

if

the owner takes advantage of his undoubted right to refuse the injured party access for purposes of self-help, he should be under a reciprocal affirmative duty to remove the cause of damage himself.

WATERS AND WATER COURSES - PUBLIC RIGHTS RIGHT TO TAKE FISH AND GAME ON A NAVIGABLE NON-TIDAL STREAM.- The plaintiff, owner of the bed of a navigable non-tidal stream, seeks to enjoin a member of the public from hunting from a boat on that part of the stream which is over the plaintiff's land. Held, that the injunction will not issue. Diana Shooting Club v. Husting, 145 N. W. 816 (Wis.).

For a discussion of the right to fish and hunt in non-tidal waters see this issue of the REVIEW, p. 750.

WITNESSES-COMPELLING TESTIMONY-SUBPOENA DUCES TECUM TO COMPEL PARTNER TO PRODUCE PARTNERSHIP PAPERS FROM FOREIGN JURISDICTION. A subpoena duces tecum had issued against the defendant, a partner in a firm doing business in New York and Paris, to appear as a witness before the grand jury and bring with him certain checks then retained in the Paris office. Although the checks would have been forwarded on request, the defendant failed to make any reasonable efforts to produce them. Held, that the defendant is in contempt. In re Munroe, 210 Fed. 326 (Dist. Ct., Mass.).

To enforce a subpœna duces tecum it is essential that the document be within the witness' control. Amey v. Long, 9 East 473. But if he is the legal possessor, he need not have the actual custody. Steed v. Cruise, 70 Ga. 168. Thus the precise locality of the document is unimportant and it is of no consequence that it happens to be in a foreign jurisdiction. In re Consolidated etc. Co., 80 Vt. 55, 66 Atl. 790; Holly Mfg. Co. v. Venner, 86 Hun (N. Y.) 42. So if the defendant had been the sole owner of the checks, he was clearly in contempt. Nor should the fact that the checks were partnership property necessarily alter the case. On the aggregate theory of partnership each partner has complete control of the firm property subject to the rights of the others. PARSONS ON PARTNERSHIP, 4 ed., § 255. Or if the "firm" is considered a distinct entity, each partner enjoys the same control, not as joint-owner but as a general agent. PARSONS ON PARTNERSHIP, 4 ed., § 46. This latter conception is similar to that of a corporation. See Walker v. Wait, 50 Vt. 668, 676. And a subpœna duces tecum will issue against an officer who has control of a document belonging to the corporation. Nelson v. United States, 201 U. S. 92, 115. See also Lorenz v. Lehigh Navigation Co., 5 Leg. Gaz. (Pa.) 174. Of course if the other partners refuse to relinquish the papers, the subpoena cannot be enforced. See Attorney General v. Wilson, 9 Sim. 526, 529. But where, as in the principal case, the subpoenaed partner could have produced the documents by an honest effort, yet unreasonably refused, he should be in contempt. United States v. Collins, 145 Fed. 709. To require service on every partner would often lead to a failure of justice and should be unnecessary.

BOOK REVIEWS.

COMMENTARIES ON THE LAW OF EVIDENCE IN CIVIL CASES. BY Burr W. Jones, Rewritten, Enlarged and Brought with Authorities up to the Present Date by L. Horwitz. Volumes 1 to 5. San Francisco: Bancroft-Whitney Company. 1913, 1914. pp. xxvi, 1031; x, 1071; x, 1036; ix, 976; vi, 1157.

If the editor of the 16th edition of Greenleaf (already Wigmore on Evidence more truly than Taylor on Evidence ever earned its name) had felt warranted

in discarding brackets and leaving the reader to tell the voice of Wigmore from the voice of Greenleaf by ear, he would have banished parts of the text beyond the appendix. Professor Greenleaf himself would certainly have omitted some parts and recast others; for the best book must contain passages that outlive their usefulness, to say nothing of mere errors. Whatever reasons forbid such liberties to another hand forbid yet more peremptorily any. blurring of the line between original text and additions. The author's rights are indeed within his own disposition if he be still living, but the reader's are not; and if he has a right to the old text he has a right also to the means of identifying it without the aid of a detective. If, on the other hand, it is to be cut up into unrecognizable fragments and these imbedded in a mass of new matter, what sanctity have the disjecta membra which should prevent the editor from remoulding or rejecting them as suits his purpose?

Such, however, is not the theory on which the present work has been prepared. Practically the whole text of Jones on Evidence in its second edition seems to have been preserved verbatim et literatim; yet Mr. Horwitz's additions, which more than double its size, are so fused with the original that the reader has nothing but internal evidence to tell him whether he is listening to Professor Jones in 1896 (or 1908) or Mr. Horwitz in 1913. And the care which shows itself throughout the revision is manifest in the welding of the joints.

This method is to be regretted. To say nothing of considerations of style, or the rights of readers, the editor is painfully cramped. The attempt at revision by addition and multiplication alone, without subtraction, compression, or rearrangement, puts the workman in a straitjacket; and diligently and skilfully as Mr. Horwitz has worked, he has been compelled to some odd and amorphous results. After a careful exposition of a new topic, for example, he finds himself obliged to work in Professor Jones's opening sentence on the same subject, with nothing to account for the inevitable repetitions; or coming upon material which needs reënforcement he must needs patch it with a passage like this, neatly stitched at the edges to match the older fabric:

"Here again the term, 'part of the res gestæ,' is applied to such declarations, and to such as come under the head of narrative statements; whereas in fact the admissibility rests upon the exercise of the powers of the agent within the scope of his authority. While so far the consequences of treating such declarations of agents under both heads has not resulted in any demonstrable harm, we think that time would be economized if the discussion were excluded altogether from the realm of res gestæ, and conrined to treatment as suggested by Thayer, under the general rule of evidence applicable to agency."

Subject to such criticisms on its general method, the work is entitled to praise. A sensible and useful book, with a convenient arrangement, and a better separation than is sometimes found between the things which do and those which do not belong in a treatise on Evidence, has been revised with care and intelligence. To be sure, Mr. Horwitz does not always show the enlightened vision which the earlier part of his work leads us to expect. The archaic use of Bacon's maxim, for example, is disappointing; and so is such a deliverance as this:

"The idea of the res gesta presupposes a main fact or principal transaction, and the res gesta mean the circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character."

Often he has failed to profit as he should by the light that shines from Professor Wigmore's pages. But he has done his work with great pains and with a praiseworthy regard for the practitioner's convenience. Some fifty thousand cases,

including the latest, are made accessible; and while the increase from less than fifteen hundred to more than five thousand pages contains matter which a better scheme of revision would have rejected, skilful bookmaking has combined agreeable type with economy of bulk.

One of the good features of the book is the hope it gives that Horwitz on Evidence will come next, as Wigmore followed Wigmore's Greenleaf, and Chamberlayne Chamberlayne's Best. When Mr. Horwitz applies his evident abilities to this task, freed from embarrassing limitations, he will do well to remember that compression is the greatest, as well as the most difficult, service he can render the profession. Anybody can write a long book on a subject he is full of; only a master can write a short one and make it first-rate. Remembering that we have already a treatise on Evidence which is great both in quality and dimensions, he should set before himself as an ideal that excellence which increases in direct ratio with brevity.

E. R. T.

THE LIFE AND CORRESPONDENCE OF PHILIP YORKE, EARL OF HARDWICKE, LORD HIGH CHANCELLOR OF GREAT BRITAIN. By Philip C. Yorke. Vol. I, pp. xvl, 685; Vol. 2, pp. viii, 598; Vol. 3, pp. viii, 653. Cambridge University Press University of Chicago Press, 1913.

At last we have an adequate life of the great chancellor. Excepting the political lampooners of his own age, who served up the subject in their own style, the first biographer of Hardwicke was Campbell, who did his worst; and Campbell's interpretation of the contemporary pamphleteers has been the basis of most subsequent sketches. Even the article on Hardwicke in the last edition of the Encyclopedia Britannica is based largely on Campbell's life, though in the article on Campbell in the same publication it is said that the execution of his Lives was wretched, that one of the chief faults was "the hasty insinuations against the memory of the great departed who were to him as giants," faults "painfully apparent in the lives of Hardwicke" and others. In addition to Campbell's life, there was a mediocre performance by George Harris; and a short sketch by Foss in his Biographia Juridica which is fair and independent. It was only in 1900, when the Hardwicke papers were purchased by the British Museum, that an authoritative biography became possible. This work is painstaking and accurate. It is not a great biography. It lacks literary graces; its treatment of Hardwicke's great service to his race, the development of equity, is entirely inadequate; and the plan of segregating the correspondence of a period after the narrative, instead of weaving it into the text, is better adapted to a source-book than to a work of literature. Yet if the book misses greatness it does so by a rather narrow margin. The work has distinct merit. The author shows industry, judgment, fairness, and enthusiasm; he succeeds in making his hero a real human being, a good man; he allows us to follow sympathetically the fortunes of a typical English man of law. It is fortunate that Hardwicke, in what must long remain his standard biography, has been so truly and so lovingly portrayed.

Classic taste, restrained feelings, moderate opinions, simple pleasures, personal politics, nothing unbridled but the bitterest defamation of political rivals; these were characteristics of the England of 1720 to 1760, the England of Philip Yorke, Earl of Hardwicke, Lord Chancellor of England for nearly twenty years. And Hardwicke was suited to his age, as he must have been to live so successful a life. He was handsome, polished, tactful, moderate The son of a country attorney in modest circumstances, he made useful friends of his fellow-students, his dinner-companions, his mere acquaintances; they

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