sentative capacity, until election to take as legatee.18 Fifth, the rights of an executor vest at the death of the testator, so that he may sue for subsequent trespasses committed before his approval by the court. Finally, on a claim against the estate, the executor must be sued as executor.

The doctrine of dual personality was lately applied in New York, where an executor sued both individually and in his representative capacity was permitted to be represented by two counsels. Roche v. O'Connor, 95 N. Y. App. Div. 496. This fiction is also used by Mr. Justice Holmes to explain the rule which makes residuary legacies general rather than specific.11 Formerly 15 the executor was entitled to the residue, not "as legatee of those specific chattels, but because he represented the testator, and therefore had all the rights which the testator would have had after distribution." Although the residue, to-day, is usually bequeathed specifically, its character as a general bequest is retained.

RECENT CASES.

AGENCY-LIABILITY OF PRINCIPAL TO THIRD PERSONS IN TORT - RESTRICTION OF CHOICE TO LICENSED CLASS. — In an action against the defendant for the tort of his mine manager, the defendant set up that he was excused from such liability by the provisions of a statute enacting that such managers be hired only from a class licensed by the state. Held, that the statute furnishes no defense. Fulton v. Wilmington, etc., Co., 37 Chic. Leg. News 75 (U. S. Circ. Ct., N. D. Ill., 1904).

The law of England has long since been settled in accord with this holding. Martin v. Temperley, 4 Q. B. 98. In the United States the few cases that have been found are in conflict. On one side is the present decision, following a previous tendency of the Illinois state courts. Cf. Consolidated, etc., Co. of St. Louis v. Seniger, 179 Ill. 370. Squarely opposed is a Pennsylvania decision, holding a state statute, which expressly attempted to impose the liability contended for in the principal case, unconstitutional. Durkin v. Kingston Coal Co., 171 Pa. St. 193. The decision of the circuit court seems right. The restriction of the employer's choice to a licensed class modifies no factor which led the common law to impute to the master the tort of his servant. Power of control, not latitude of selection, is the criterion of his obligation. The employer's right to supervise, direct, and discharge for disobedience or incompetency remains unabridged. So should his liability.

BANKRUPTCY - DISCHARGE INTERPRETATION OF STATUTE.

The amendment

of 1903 to the Bankruptcy Act of 1898, in amending § 14 b, provides that "The judge shall... discharge the applicant unless he has (5) in voluntary proceedings been granted a discharge in bankruptcy within six years. A bankrupt applied for a discharge in involuntary proceedings. It was objected that, as he had been granted a discharge in voluntary proceedings within six years, he could not, under the clause quoted, be granted a discharge in the present proceedings. Held, that the objection must be sustained. Matter of Neely, 12 Am. B. Rep. 407 (U. S. Dist. Ct., S. D. Ñ. Y.). As the other clauses in § 14 b apply to present proceedings, both voluntary and involuntary, the fact that the fifth clause begins with the words "in voluntary proceed. ings" would naturally indicate an intention that those words also should be construed to apply to present rather than to former proceedings. The court's decision seems doubtful also on principle. The recent tendency in America has been to give debtors a discharge whenever their creditors force them into bankruptcy. 18 U. S. Stat. at Large, part 3, c. 390, p. 180. If the creditor gets the benefit of an equal distribution of the assets, it seems just that the debtor should be freed from the handicap of debt,

18 Garrett v. Lister, 1 Lev. 25; see also Dyer 277 b.

14 Holmes, Common Law 344.

15 The law allowing the executor to take the residue, when not otherwise disposed of, was changed by the St. 11 Geo. 4 and 1 Wm. 4, c. 40.

particularly when he took no part in instituting the present proceedings. The construction contended for would apparently fulfill the object of the amendment in preventing frequent voluntary proceedings quite as well as that adopted by the court. It would therefore seem that an interpretation contrary to the tendency of American legislation and to obvious justice to the debtor should not have been adopted unless warranted by less ambiguous language than that used.

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BILLS AND NOTES ALTERATIONS - LIABILITY OF NEGLIGENT PARTY FOR FRAUDULENT ALTERATIONS. - The plaintiffs signed a check drawn by one of their coexecutors, leaving spaces permitting of easy alteration. The drawer, after presentation, filled in the blank spaces, and the bank paid the check for the raised amount. Held, that the bank is not liable for the extra amount of the check thus fraudulently altered. Marshall v. Colonial Bank of Australia, 29 Vict. L. Rep. 804.

The Australian court followed Young v. Grote, 4 Bing. 253, which, if not overruled in terms, is discredited in England. For a discussion of the principles involved in the case, see 17 HARV. L. REV. 143.

CHAMPERTY AND MAINTENANCE GENERAL POLICY OF THE MODERN LAW.The defendant, an attorney, made a contract with a client whereby the defendant was to bring and prosecute, at his own expense, an action by the client against the plaintiff, a physician, for malpractice, and was to receive one third of the amount recovered. The action was brought and resulted in a judgment against the client for costs. The plaintiff then brought this action to recover the attorney's fees and costs incurred in defending the former action, by way of damages for the champerty and maintenance of the defendant's contract with his client, in consequence of which the former suit was brought. Held, that the plaintiff cannot recover. Smits v. Hogan, 77 Pac. Rep. 390 (Wash.). See NOTES, p. 222.

CONFLICT OF LAWS JURISDICTION FOR DIVORCE EXTRA-TERRITORIAL VALIDITY OF DECREES GRANTED WITHOUT ACTUAL NOTICE TO DEFENDANTS. A divorce was granted in Missouri after service by publication upon the defendant, a non-resident, who received no actual notice of the institution of the suit. Held, that the decree is not valid in New Jersey. Davenport v. Davenport, 58 Atl. Rep. 535 (N. J., Ch.). See NOTES, p. 215.

CONFLICT OF LAWS - MARRIAGE CAPACITY OF PARTIES DECIDED BY LAW OF PLACE OF CELEBRATION. The statutes of Rhode Island made a guardian's written consent requisite for obtaining a marriage license and also provided that all contracts made by a ward should be void. A Rhode Island man, under guardianship, married a Rhode Island woman in Massachusetts, without the consent of his guardian. Held, that, whether a marriage so celebrated in the state would be valid or not, this one, as it was lawfully celebrated in Massachusetts, must be regarded as valid. Ex parte Chace, 58 Atl. Rep. 978 (R. I.).

This is a decision of a new jurisdiction on a question on which there is a square conflict of authority. The general rule in this country is that a marriage, valid where celebrated, is valid everywhere, even if it would have been invalid if performed in the domicile of the parties. Commonwealth v. Lane, 113 Mass. 458. In England the law formerly was the same. Dalrymple v. Dalrymple, 2 Hag. Con. 54. But it is now settled in England that the law of the domicile of the parties determines the capacity to marry. Sottomayor v. De Barros, 3 P. D. 1. The English view has some support here, but most of the cases can be brought within the admitted exception that such foreign marriages will not be recognized if against the policy of the law or contrary to good morals. See Commonwealth v. Lane, supra. The doctrine of the principal case seems preferable to the English view, which is apt frequently to result in marriages being held good in some countries and void in others. Cf. Brook v. Brook, 9 H. L. Cas. 193. The American view accords with the earlier cases, and greatly lessens the probability of such disastrous conflicts.

CONFLICT OF LAWS RIGHTS OF FOREIGN CORPORATIONS CORPORATIONS FORMED IN ONE STATE TO TRANSACT BUSINESS IN ANOTHER. A company incorporated under the laws of Kansas was given by its charter no powers other than that of dealing in real estate in Oklahoma. Held, that the corporation will not be recognized in Oklahoma. Myatt v. Ponca City, etc., Co., 78 Pac. Rep. 185 (Okla.).

It is the general rule that corporations formed under the laws of one state may carry on business in another. Bank of Augusta v. Earle, 13 Pet. (U. S.) 519. This rule includes corporations which, though authorized to act in the states in which they are chartered, transact the greater part of their business elsewhere. Hanna and Fin

ley v. International Petroleum Co., 23 Oh. St. 622. Some courts have made no exception in cases in which the corporations were authorized to do nothing in the states by which they were created. Lancaster v. Amsterdam Improvement Co., 140 N. Y. 576. The view taken by the court in the principal case that the doctrine of comity does not require that one state should be given unlimited power to dispose of the franchise of acting as a corporation in another seems sound, however, and is supported by some authority. Hill v. Beach, 12 N. J. Eq. 31. It would seem, moreover, that the facts in the case are not essentially different from those upon which a Kansas court has held that a foreign corporation empowered by its charter to act anywhere except in the state of its creation is not entitled to recognition. Land, etc., Ćo. v. Commissioners of Coffey County, 6 Kan. 245.

CONTRIBUTORY NEGLIGENCE IMPUTED NEGLIGENCE - GRATUITOUS PASSENGER. The plaintiff, an infant, was injured through the concurrent negligence of the defendant company and of the driver of the team in which she was riding. Held, that the negligence of the driver is not to be imputed to the infant so as to prevent recovery. Hampel v. Detroit, etc., Ry. Co., 100 N. W. Rep. 1002 (Mich.). See NOTES, p. 219.

COSTS SECURITY FOR COSTS - BOND OF NON-Resident. - A litigant, required to give security for costs, offered the bond of a foreign guaranty company which kept property within the jurisdiction for the sole purpose of securing its liabilities. The court, although admitting the bond was good security, refused it on the ground that as a matter of law a bond of a foreign company could not be accepted. Held, that the bond should be accepted, since each case must be decided on its own merits. Aldrich v. British, etc., Co., 53 W. R. 1 (Eng., C. A.).

Although this question does not seem to have arisen often in England, previous decisions have taken the opposite view, that the bond of a non-resident was not good security for costs even though he had property within the jurisdiction. Knight v. DeBlaquier, 1 Ir. Eq. 375. In the United States such a question does not often come up, as, by statute in many states, a surety must be a resident. Even where there is no such statutory provision, the same result has been reached on the ground of the difficulty in ascertaining the solvency of the foreign surety, and also in proceeding against him in case of the principal's default. Snedicor v. Barnett, 9 Ala. 434. These reasons are valid where the surety has no property within the state; but where he has sufficient assets there to warrant the court in accepting his bond save for the fact that he is a non-resident, there seems to be no good reason for rejecting it under an arbitrary rule of law, as his property may be reached to satisfy any claim. See Pennoyer v. Neff, 95 U. S. 714.

COVENANTS RUNNING WITH THE LAND FENCING-RIGHT TO RECOVER AGAINST ASSIGNEE OF COVENANTOR.-The plaintiff transferred land to a railroad company by a deed in which the latter covenanted to build and maintain fences along the whole extent of the land granted. The railroad company assigned to the defendant, who failed to perform these covenants. The plaintiff sued the defendant for breach of covenant. Held, that the plaintiff may recover. Chicago, etc., Ry. Co. v. McEwen, 71 N. E. Rep. 926 (Ind., App. Ct.). See NOTES, p. 214.

CRIMINAL LAW-DOUBLE JEOPARDY-CONTINUOUS OFFENSE. - The defend. ant, who had been convicted and fined for engaging in the business of procuring laborers for employment outside the state without having paid the annual license tax required by law, was indicted in the same year for continuing the offense after the conviction. Held, that the conviction is a bar to further prosecution during the current year. State v. Roberson, 48 S. E. Rep. 596 (N. C.).

The general rule forbidding double jeopardy, when applied to continuing offenses, is that a conviction is a bar to a subsequent indictment which charges commission of the offense during any time prior to the finding of the first indictment, at least where the first indictment did not charge the offense within specified dates. People v. Cox, 107 Mich. 435. This seems fairly to imply that if the offense were continued after conviction it would be again indictable. A few cases hold this directly. State v. Judge, 43 La. An. 1119; Gormley v. State, 37 Oh. St. 120; see Dixon v. Corporation of Washington, 4 Cranch (U. S.) 114. Moreover the principal case seems questionable on principle as well as on authority. The court was doubtless influenced by the fact that the minimum fine equalled the amount of the tax. But it is difficult to see how the punishment of what had been illegal could make the continuance of it legal. A license implies permission from the proper authorities, and the defendant could not legally engage in the business until he had received that permission. Continuing to do so after conviction should have been considered a new offense.

CRIMINAL LAW-DOUBLE JEOPARDY - RIGHT OF STATE TO APPEAL.-The plaintiff in error was tried for embezzlement by a magistrate's court in the Philippine Islands and was acquitted. An act of Congress applying to the islands prohibited double jeopardy. The prosecution sought an appeal on the ground that it was allowed under the Spanish interpretation of double jeopardy. Held, that an appeal does not lie. Holmes, J., dissented. Kepner v. United States, 24 Sup. Ct. Rep. 797. See NOTES, p. 216.

DAMAGES EXEMPLARY PLAINTIFF ENTITLED AS MATTER OF RIGHT. Held, that when the defendant's trespass is willful, wanton, or malicious, it is the jury's duty to assess exemplary damages, since such damages are not merely punitive, but are given in vindication of a private right. Beaudrot v. Southern Ry. Co., 48 S. E. Rep. 106 (S. C.).

Exemplary damages are to be sharply distinguished from damages imposed for the indignity or mental suffering inflicted by a wanton or malicious tort. Courts which deny a right to the former freely accord the latter. Smith v. Holcomb, 99 Mass. 552. And where the former are awarded, instructions that they be assessed in addition to the latter are unexceptionable. Bonelli v. Bowen, 70 Miss. 142. It would, therefore, seem that exemplary damages, if allowed at all, should be regarded as solely punitive; for the plaintiff's right to be compensated for the aggravating elements of wantonness or malice has already been amply vindicated; and he can accordingly hardly be heard to complain if the imposition of such damages be left to the discretion of the jury. See Webb v. Gilman, 80 Me. 177. The South Carolina court itself has held that when exemplary damages are assessable, evidence of the defendant's pecuniary means is admissible, -a position somewhat difficult to reconcile with the theory that these damages are compensatory. Rowe v. Moses, 9 Rich. (S. C.) 423. The principal case has since been followed by the same court. See Poulnot v. The Western Union Telegraph Co., 48 S. E. Rep. 622 (S. C.).

ELECTIONS -ILLEGAL VOTES-APPORTIONMENT. In an election for a county official, the returns from one township indicated the presence of six illegal votes. It was impossible to determine for which of the candidates these votes had been cast. The appellant filed a petition to contest the election. Held, that the illegal votes should be apportioned between the candidates in the proportion that the vote of each bears to the whole number of votes cast. Choisser v. York, 71 N. E. Rep. 940 (Ill.).

There are three methods of dealing with this question: First, accept the returns without alteration. Ex parte Murphy, 7 Cow. (N. Y.) 153. Second, adopt the method of the principal case. People v. Cicott, 16 Mich. 283. Third, reject the returns containing illegal ballots, and, if necessary, order a new election. Attorney General v. McQuade, 94 Mich. 439. The first view, if followed, would give undue electoral weight to the township from which the illegal returns came in comparison with other townships. The second method would obviate the difficulty of the first by cutting down the vote to its correct numerical basis; but, as between the candidates, where the election is in doubt, the injustice would remain; for a mere apportionment of the illegal votes could not change their relative positions. Under such circumstances the better plan would be to reject the returns and order a new election. This would do justice as between the candidates, carry out the will of the people, and take away the incentive for fraud.

EXECUTORS AND ADMINISTrators — Rights, Powers, and Duties - RIGHT TO REPRESENTATION BY TWO COUNSEL.-Held, that where an executor is sued both individually and in his representative capacity, he is entitled to be represented by two counsel. Roche v. O'Connor, 95 N. Y. App. Div. 496. See NOTES, p. 224.

EXTRADITION - INTERSTATE EXTRADITION-DEFENSE OF STATUTE of LimiTATIONS. The petitioner was held under an extradition warrant for a crime committed five years previously. In habeas corpus proceedings it was proved that in the demanding state an indictment must be brought within two years of the commission of the offense, except in the case of persons fleeing from justice. The petitioner had not spent two years in that state since the crime. Held, that the prisoner may be extradited, irrespective of the motive with which he left the demanding state. In re Bruce, 132 Fed. Rep. 390 (Circ. Ct., Dist. of Md.).

The words fleeing from justice" in extradition statutes do not require willful or conscious flight. In re White, 55 Fed. Rep. 54. There seems little reason for a different reading of similar phraseology in criminal statutes of limitation, since the important fact in either case is that the accused consciously puts himself outside the jurisdiction. Yet the consciousness of flight is generally considered necessary in this

case. United States v. O'Brian, 3 Dill. (U. S. C. C.) 381; see Streep v. United States, 160 U. S. 128. But upon extradition proceedings the inquiry is mainly whether the defendant is substantially charged with crime and is a fugitive from justice in the sense of the extra lition statutes. Roberts v. Reilly, 116 U. S. 80. He is substantially charged in the federal court, although the indictment shows that the statute of limitations has run; for the statute constitutes a mere defense of fact for the jury. United States v. Cook, 17 Wall. (U. S.) 168. It follows that the accused may only show by this defense in extradition proceedings that he was within the demanding state for the statutory period, and hence did not leave it as a fugitive from justice as that phrase is interpreted in the extradition laws.

HIGHWAYS - RIGHTS AND REMEDIES OF ABUTTERS - ACTION BY SPECIALLY ASSESSED PROPRIETOR. The plaintiff, a landholder, who had been specially assessed for the repair of a contiguous road, sued the members of the board of local improvements, alleging that they corruptly caused to be laid a pavement inferior to that expressly required by the ordinance, and that the property of the plaintiff was thereby decreased in value. Held, that a demurrer to the declaration should be overruled. Gage v. Springer, 71 N. E. Rep. 860 (Ill.).

At common law, one cannot recover for a default causing damage similar in kind though different in degree to the public. Payne v. Partridge, 1 Salk. 12. In the present case it is admitted that there would ordinarily have been no action, even though the officials, in contravention of an express ministerial duty, had rendered the road impassable; for a badly paved street, however much it might injure the plaintiff, would cause inconvenience and depreciation of property, in some measure, to every one living in the community. The court, however, attempts to derive damage peculiar in kind from the fact of special assessment. Though it is believed that there are no cases in point, this distinction seems untenable. The plaintiff was not complaining of the assessment, but of the faulty pavement, and it matters not how or by whom the expense of the pavement was defrayed; the damage which the plaintiff suffers by having it badly laid, remains precisely the same.

HOMICIDE-SUICIDE-ACCESSORIES BEFORE THE FACT.-A statute provided that in all felonies accessories before the fact should be liable to the same punishment as the principal, and might be prosecuted jointly with the latter, or severally, though the principal had not been taken or tried. Held, that an accessory before the fact to a suicide is guilty of murder as a principal in the second degree. Commonwealth v. Hicks, 82 S. W. Rep. 265 (Ky.).

The common law conception of suicide as a form of murder is here adopted by the court. For a discussion of the principles involved, see 17 HARV. L. REV. 566.

JOINT WRONGDOERS - JUDGMENT AS TO ONE AND NON-SUIT AS TO ANOTHER. The plaintiff brought a joint action against a railroad company and its special officer for injuries inflicted by the latter. A non-suit was entered as to the company and a judgment was rendered against the officer. The entry of non-suit was appealed. Held, that since the plaintiff has one judgment on the joint action, the judgment of non-suit cannot be reversed. Higby v. Pennsylvania R. R. Co., 209 Pa. St. 453.

An injured party may, at his election, sue joint tort-feasors jointly or severally. Cabell v. Vaughan, 1 Wms. Saund. 291 f; Sessions v. Johnson, 95 U. S. 347 (semble). Logically, once having made his choice, he cannot turn a joint into a several action. Accordingly, in Pennsylvania, a plaintiff, having alleged a joint tort, is not allowed to enter a nolle prosequi as to one defendant and recover, as to another, for a several tort. Wiest v. Electric, etc., Co., 200 Pa. St. 148; cf. Wallace v. Third Avenue R. R. Co., 36 N. Y. App. Div. 57. In the principal case the plaintiff elected a joint action and the non-suit could not change its nature. The judgment secured was joint and, on principle, he could not split it by appealing from that part constituted by the nonsuit. Cf. Leese v. Sherwood, 21 Cal. 151. The court rests its decision on this narrow ground of technical procedure, but modern practice generally allows greater liberality. The action has been considered both joint and several, and so, in New York, a contrary decision was reached. Hurley v. New York, etc., Co., 13 N. Y. App. Div. 167. For purposes of review the action was regarded as severed, and a new trial granted as to one defendant.

JURY CHALLENGE FOR CAUSE-SERVICE ON FORMER TRIAL. -Two aldermen were successively convicted of receiving bribes, on informations substantially identical. A witness on the first trial had testified to the guilt of the second defendant. The testimony, however, was purely corroborative, nor did it appear that either of the defendants knew of the other's offense. Five of the jurors in the second trial had served on the first, all of whom denied having formed any opinion as to the guilt or