EQUITY - JURISDICTION STIPULATION IN CONTRACT FOR RELIEF BY INJUNCTION. The defendant contracted to sing in the plaintiff's troupe, one clause of the agreement being that the defendant's services were of so special a character that the plaintiff should be entitled, in case of breach, to enjoin the defendant's singing for any other person. Held, that the plaintiff is not entitled to an injunction. Dockstader v. Reed, 121 N. Y. App. Div. 846.

The refusal to grant an injunction in the present case seems a proper exercise of the court's discretion. For a discussion of the principles involved, see 21 HARV. L. REV. 368.

FEDERAL COURTS — JurisdiCTION WHAT CONSTITUTES A CONTROVERSY. The complainants in a certain litigation had demanded payment of a debt due them and had been refused. The respondent, when sued, admitted all the allegations of the complainants' bill and joined in asking for a receiver for its property. The petitioner here sought to compel the circuit court to dismiss the complaint on the ground that there was no "controversy " between the parties as required by the statute defining the jurisdiction of the circuit court. U. S. COMP. STAT., 507, 508. Held, that there was a controversy between the parties within the meaning of the statute. Re Metropolitan Railway Receivership, 208 U. S. 90.

Controversy does not include criminal cases, but only applies to civil suits. See Matthews v. Noble, 55 N. Y. Supp. 190. After a judgment has been paid and extinguished, no controversy remains upon which to predicate jurisdiction in an appellate court. Dakota County v. Glidden, 113 U. S. 222. Nor does one exist when the litigation is collusive, or controlled on both sides by the same person, or is based on a mere moot question not involving any right in the plaintiff. Tenn., etc., Ry. Co. v. Southern Tel. Co., 125 U. S. 695; Tyler v. Judges, 179 U. S. 405. The court interprets "controversy as meaning an unsatisfied justiciable claim. The existence of the latter does not depend upon the nature of the defendants' reply, but upon some previously existing state of facts. For it is absurd to say that the defendant can conclusively show that the plaintiff has no such claim by a plea admitting his every allegation. The petitioner's contention that no controversy exists where no issue is raised by pleadings would prevent judgments by consent or by default in the federal courts, and would weaken the entire statute by leaving federal jurisdiction to the caprice of the defendant. In the only case found where this argument has been made, it was dismissed with slight consideration. See Hickman v. B. & O. Ry. Co., 30 W. Va. 296, 299.

FEDERAL COURTS RELATIONS OF STATE AND FEDERAL COURTS - RETENTION OF Jurisdiction AFTER TERMINATION OF RECEIVERSHIP. - A railroad, after making mortgages, issued unsecured bonds and later consolidated with another railroad on terms which were held by the state court to give the bondholders a lien on the equity of redemption. The federal court held that a lien was not created. Other consolidations and mortgages followed, and later a receiver was appointed by a federal court. After foreclosure of all the mortgages, the property was sold and delivered to the defendant, but the court reserved jurisdiction until all claims against the property should be fully paid, with power of resale on default. After this decree the plaintiff obtained a judgment and an order of sale from a state court. Held, that the state court was without power to decree a sale of the property. Wabash R. R. Co. v. Adelbert College, 208 U. S. 38. See Notes, p. 433.

HUSBAND AND WIFE PROPERTY ACQUIRED BY HUSBAND AND WIFEAPPLICATION OF DOCTRINE OF TENANCY BY ENTIRETIES TO PERSONALTY. A husband and wife sold land owned by them as tenants by entireties, taking a mortgage and bond payable to husband and wife. The latter died, and afterwards the bond was paid. Held, that one half the proceeds belongs to the wife's legal representatives. In re Baum, 106 N. Y. Supp. 113 (App. Div.).

At common law a conveyance of land to husband and wife makes them each tenant of the whole with survivorship, and owing to the suspension of the wife's

individuality they can hold in no other way. Stuckey v. Keefe's Ex'r, 26 Pa. St. 397. Though statutes emancipating the wife made tenancy by entireties no longer the only possible tenancy on a grant to husband and wife, some courts still continue to construe such grants as formerly. Fisher v. Provin, 25 Mich. 347. Others, however, have abandoned that construction. Cooper v. Cooper, 76 Ill. 57. The rule, therefore, where established in the case of realty seems merely a survival, furnishing no vigorous analogy to govern personalty. Furthermore, equity never favored survivorships. Petty v. Styward, 1 Ch. Rep. 57. And since the married women's acts are founded on equity rules, it would seem that there should not be an exceptional rule as to survivorship between husband and wife in the case of personalty. There is a conflict, but the result of the principal case is justified. In re Albrecht, 136 N. Y. 91; Wait v. Bovee, 35 Mich. 425; contra, Johnson v. Lusk, 6 Cold. (Tenn.) 113. The cases opposed are founded on a presumed analogy to the case of realty.

PROM

ILLEGAL CONTRACTS CONTRACTS AGAINST PUBLIC POLICY ISE TO MARRY AFTER DEATH OF EXISTING WIFE. - The defendant promised to marry the plaintiff after the death of his wife, the plaintiff being aware that the defendant then had a wife. Held, that the contract is void as against public policy. Wilson v. Carnley, 24 T. L. R. 277 (Eng., Ct. App., Jan. 31, 1908).

This decision reverses the decision of the lower court, criticized in 21 HARV. L. REV. 58.

INTERNATIONAL LAW - NATURE AND EXTENT OF Sovereignty - ExTRATERRITORIAL JURISDICTION. In an appeal from a judgment of the United States Court for China, the defendant maintained that the court was without jurisdiction because the offense charged was not a crime under the Act of June 30, 1906, establishing the court. Held, that, as the offense is a crime at common law within the meaning of the act, the court has jurisdiction. Biddle v. United States, 156 Fed. 759 (C. C. A., Ninth Circ.). Šee NOTES,

P. 437.

INTERSTATE Commerce CONTROL BY Congress - RegULATION OF INDEPENDENT INTRASTATE Carrier. - The Safety Appliance Act provides that carriers shall equip their cars used in moving interstate commerce with automatic couplers. The defendant company operated a narrow gauge road entirely within the state, independent of through traffic and joint rate arrangements with contiguous carriers. For every shipment, separate bills of lading were issued on local rates. A certain shipment from without the state was carried on a car unequipped with automatic couplers. Held, that the defendant company is engaged in interstate commerce and subject to the Safety Appliance Act. United States v. Colorado & N. W. R. Co., 157 Fed. 321 (C. C. A., Eighth Circ.).

The case holds that the carriage of a package from a place of shipment without the state to its final destination cannot be divided into an interstate and intrastate journey by the efforts of an independent intrastate carrier seeking to maintain a position as such. It follows, therefore, that the final destination designated by the consignor gives the shipment a continuous interstate character. See 20 HARV. L. REV. 652. An opposite result would greatly narrow the scope of federal regulation of interstate commerce. For example, under the Wilson Act liquors carried into a state become subject to the police power thereof upon arrival. But the courts have held that arrival means the final destination reached, thus guarding the inviolability of interstate commerce, as such, to this point. American Ex. Co. v. Iowa, 196 U. S. 133. If the intrastate carrier could determine at what point these imports became part of the general state property and hence amenable to state control for confiscation or taxation, these decisions would seem ineffective. A contrary result has been reached by construing the Safety Appliance Act as applicable only to carriers within the provisions of the Interstate Commerce Act. United States v. Geddes, 131 Fed. 452. But on the unequivocal language of this statute, its application is rightly extended to all carriers handling interstate shipments.

INTERSTATE COMMERCE - INTERSTATE COMMERCE COMMISSION - COMMISSION'S POWer to InterROGATE. — In the course of an investigation the Interstate Commerce Commission interrogated the defendant with the object of ascertaining whether the directors of a railroad engaged in interstate business had expended its funds while the defendant was an officer of the railroad in buying stocks at inflated prices, or stocks that should not have been purchased. On refusal to answer, suit was instituted to compel him to do so. Held, that he be directed to answer. Interstate Commerce Commission v. Harriman, 157 Fed. 432 (Circ. Ct., S. D. N. Y.). See NOTES, p. 431.

OF PLAINTIFF'S SISTER. - Under the title "Divided House of the M's" the defendant published that the plaintiff's sister had been arrested for larceny. Held, that it was error to sustain a demurrer to the plaintiff's suit for libel. Merrill v. Post Publishing Co., 83 N. E. 419 (Mass.).

Ordinarily an action for defamation is confined to the person directly assailed. Libel of a partner in his private life is not libel of the partnership. Haythorn v. Lawson, 3 C. & P. 196. And no action is allowed for the slander of a deceased relative. Wellman v. Sun Printing, etc., Ass'n, 66 Hun (N. Y.) 331. It is true that suit for libel of a wife may be brought in the husband's name, but the action lapses on her death. See ODGERS, Libel and Slander, 4 ed., 530. Moreover, defamation of a sister uttered in an action by the defendant against her brother has been held to give the brother no action for slander. Subbaiyer v. Kristnaiyar, I. L. R. I Mad. 383. This case, however, was distinguished from the present case on the ground that the plaintiff's name was not there mentioned. A similar distinction has been made where a corporation sues for libel because of the defamation of its manager. N. Y. Bureau of Information v. Ridgway-Thayer Co., 104 N. Y. Supp. 202. distinction seems unsupportable since in each case the plaintiff's standing in the community is damaged. Hence to allow him to recover in an action of libel is extending the previous limits of the action and enlarging the absolute liability where no special damages need be proved. An action should lie, however, for actual damages proximately caused by the defendant's tort. See Riding v. Smith, 1 Ex. D. 91.

The

Libel and Slander - Acts AND WORDS ACTIONABLE-WORDS CHARGING INSTITUTION OF DIVORCE ProceedinGS. — The defendant falsely published that the plaintiff's husband had instituted a suit for divorce against the plaintiff in the New Jersey courts. A divorce may be granted in New Jersey for incompatibility of temperaments. Held, that the publication is libellous per O'Neill v. Star Co., 121 N. Y. App. Div. 849.

se.

In a similar case a co-respondent was named, and the imputation was therefore clearly defamatory. Regina v. Leng, 34 J. P. 309. But the present finding seems entirely reasonable notwithstanding the possible meaning of the publication under the New Jersey divorce law, and assuming that such meaning is not actionable. That the statement is merely capable of a special innocent meaning is not conclusive; words are no longer, as formerly, construed in mitiori sensu, but in the plain sense in which the rest of the world naturally understands them. See Roberts v. Camden, 9 East 93, 96. Nor should a presumption of knowledge of a technical sense of the words be raised to rebut their otherwise libellous character in the minds of right-thinking people. The presumption — or fiction that every one knows the law cannot be pushed to such an extent. The same principle seems to be involved in those cases where it is actionable to charge acts commonly understood to be criminal, though they do not legally constitute a crime; for example, words imputing larceny of common property by a co-tenant are actionable per se. Williams v. Miner, 18 Conn. 464.

MANDAMUS - Acts SubjecT TO MANDAMUS PERFORMANCE OF DUTIES IMPOSED BY STATUTE AUTHORIZING USE OF STREETS. A city petitioned for mandamus to compel a telephone company to file a statement of its receipts and to pay a tax thereon, in accordance with a municipal ordinance granting

the use of the streets, which the company had accepted. Held, that mandamus does not lie. City of Chicago v. Chicago Telephone Co., 82 N. E. 607 (Ill.).

Though ordinary contractual duties, even if owed to a state, are not enforceable by mandamus, duties imposed by municipal ordinances in granting to quasi-public corporations the use of streets are not contractual merely. People v. Suburban R. R. Co., 178 Ill. 594. For, whether the grant is properly considered a franchise given by the municipality under authority delegated by the state, or, as in Illinois, a license sanctioned by the state, the duties are imposed as conditions of the grant of a public privilege and are legal obligations owed ultimately to the state. Richmond, etc., Co. v. Brown, 97 Va. 26; Chicago, etc., Co. v. Town of Lake, 130 Ill. 42. If, then, a relator seeks to enforce these duties by mandamus, the writ should be granted. Richmond, etc., Co. v. Brown, supra. For, even according to the early definition of mandamus, it lay for the enforcement of legal obligations imposed by statute or charter. King v. Wheeler, Cas. t. Hardw. 99. And the application of mandamus has been greatly extended. Rex v. Barker, 3 Burr. 1265; American, etc., Co. v. Haven, IOI Mass. 398. According to the modern notions, benefit to the general public from performance, it is submitted, is a circumstance in showing that obligations are enforceable by mandamus. But the present case reaches its erroneous conclusion by making such benefit the determining circumstance.

NEGLIGENT MISREPRESENTATION - NEGLIGENTLY PREPARED ABSTRACT OF TITLE. The plaintiff alleged that the defendant company was engaged in making abstracts of title to realty; that it was customary for purchasers of realty, even though under no contract relation with the defendant, to rely thereon; and that the plaintiff was damaged by acting on a negligently defective abstract made by the defendant. The defendant demurred. Held, that the demurrer be sustained. Thomas v. Guarantee Title & Trust Co., Oh., Circ. Ct. Cuyahoga Co., Nov. 18, 1907. See Notes, p. 439.

NEW TRIAL GROUNDS FOR GRANTING NEW TRIAL-MOTION ON GROUND OF NEWLY DISCOVERED EVIDENCE UNACCOMPANIED BY AFFIDAVIT OF WITNESS. On a motion for a new trial on grounds of newly discovered evidence the applicant produced the affidavit of a person other than the witness as to statements made by a non-resident witness who had refused to make an affidavit. Held, that it is error to refuse to consider it. Soebel v. Boston Elevated Ry. Co., 83 N. E. 3 (Mass.).

As the question involved is not the truth of certain evidence but its existence, and as no question of what should or should not be admitted at the trial is involved, the ordinary hearsay rule does not here apply. Lansky v. West End St. Ry. Co., 173 Mass. 20; contra, Sheppard v. Sheppard, 10 N. J. L. 250, 254. In general, the facts upon which the motion is based must be shown by the best evidence. Therefore the affidavit of the witness from whom the newly found evidence is expected must ordinarily accompany the motion. Cardell v. Lawton, 16 Vt. 606. But the rule is subject to exceptions within the discretion of the court. And if the absence of such an affidavit can be satisfactorily accounted for, as where the witness is out of the state, and his affidavit cannot be obtained, any evidence that will convince the court that he can give important new testimony may be shown. Smith v. Cushing, 18 Wis. 295; Read v. Staton, 3 Hayw. (Tenn.) 159. Under these circumstances hearsay is admissible, and the affidavit of one who has heard the statements of the witness may be received. Eddy v. Caldwell, 7 Minn. 225.

PUBLIC OFFICERS DE FACTO OFFICERS VALIDITY OF ACTS WHERE NO DE JURE OFFICE. The plaintiff was discharged from the police force by a police board created by a statute later declared unconstitutional. He now seeks reinstatement on the ground that the acts of its incumbents could not be valid as those of de facto officers, since there was no de jure board. Held, that he is not entitled to reinstatement. Lang v. Mayor of Bayonne, 68 Atl. 90 (N. J., Ct. Err. and App.).

This case overrules an earlier case. Flaucher v. Camden, 56 N. J. L. 244. Further, it disapproves of the doctrine laid down by the Supreme Court of the United States. Norton v. Shelby County, 118 U. S. 425. For a discussion of the principles involved, see 21 HARV. L. REV. 153; 20 ibid. 580.

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RESTRAINT OF TRADE SHERMAN ANTI-TRUST LAW LIABILITY OF LABOR UNIONS. The plaintiffs ran a non-union factory. The defendants, members of the Union Ĥatters of America and the American Federation of Labor, in an attempt to force the plaintiff to employ only union men, boycotted his goods and destroyed his business, which was largely interstate. Held, that the defendants' acts constitute a combination in restraint of interstate trade, made illegal by the Sherman Anti-Trust Act of 1890, and that the plaintiff, by § 7 of the Act, can recover threefold damages for the injury to his business. Loewe v. Lawlor, 208 U. S. 274.

By the better opinion boycotts are actionable at common law. See 20 HARV. L. REV. 429, 450. The present case is noteworthy in deciding for the first time that the person injured by a boycott which is in restraint of interstate commerce has the added remedy of a recovery of threefold damages. The court has already decided that a conspiracy in trade to refuse to sell to a retailer unless he conforms with certain restrictions is an illegal restraint under the Act. Montague & Co. v. Lowry, 193 U. S. 38. The present decision merely applies the same principles to labor combinations. It therefore introduces no new principles, and the court could consistently have reached no other result without exempting labor unions from the law. And a combination of consumers to interfere with the interstate trade of any producer would likewise seem illegal, regardless of the motive. As the decision allows recovery against the individual members of the union, it seems to show the attitude of the court upon the question of the responsibility of individual members of a labor union for damages caused by strikes and other labor troubles.

RESTRICTIVE AGREEMENTS AS TO USE OF PROPERTY COVENANT AGAINST EXERCISING TRADE COVENANT TAKEN FOR PURPOSE OF ESTABLISHING MONOPOLY. - The owner of a large tract of land on which a town was situated divided it into lots and conveyed them to different purchasers by deeds containing covenants by the vendees not to engage in the sale of intoxicating liquors. His main purpose was to protect his own saloon from competitors. Held, that the covenants are void as creating a monopoly. Burdell v. Grandi, 92 Pac. 1022 (Cal.).

It is well settled that a covenant not to carry on a certain business on the land sold is enforceable. McMahon v. Williams, 79 Ala. 288. But where it is part of a general scheme to create a monopoly, a distinct question of public policy is presented. The older view was that an owner of land had an absolute right to dispose of it in any way. Holmes v. Martin, 10 Ga. 503; Morris v. Tuskaloosa Mfg. Co., 83 Ala. 565. The modern rule is that he must not exercise his right so as to injure the public, and that if restrictive covenants create a monopoly they are void. Chippewa Lumber Co. v. Tremper, 75 Mich. 36. The result of enforcing the covenants in the present case would be to confine the whole town's source of supply of liquor to one man. In the case of most commodities the restriction should not be enforced. But it seems better public policy to restrict the sale of liquor than to encourage its use, and as the question is one of public policy only, the monopoly might well be allowed. See Watrous v. Allen, 57 Mich. 362.

TAXATION PARTICULAR FORMS OF TAXATION TIME OF ACCRUAL OF RIGHT OF STATE TO INHERITANCE TAX. — A resident of Massachusetts died intestate leaving personal property in both Massachusetts and New York to be distributed to a brother and certain nephews and nieces. Under a New York statute the shares of the nephews and nieces were subject to an inheritance tax, while the brother's share was exempt. To avoid the tax on the non-exempt shares the administrator elected to apply the New York assets to the payment of the brother's distributive share. Held, that he is liable for the tax, since the