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that concludes that the resignations are invalid, since they would always leave the interests of the company without such proper care. Since the directors remain directors the case does not come within the actual provisions of the statute ; its intent becomes immaterial. CORPORATIONS–CONTRACT NOT UNDER SEAL-Recovery. The plaintiff rendered services to the defendant corporation as engineer in preparing plans for a sewerage system. In an action to recover for the services rendered, the defence was that there had been no agreement under the common seal of the defendant. Held, as the work had been done (1) at the request of the corporation, and (2) in respect to matters incidental to the purposes for which the corporation had been created, and (3) as the benefit had been accepted, a contract to pay would be implied, and the plaintiff could recover, Lawford v. Billericay Rural Council (1903) L. R., I K. B. 772.

The case is interesting, since it is another step in England, away from the common law rule that a contract by a corporate body requires a seal, a principle which the American courts long ago discarded. Gottfried v. Miller (1881) 104 U. S. 521, 527; Leinkauf v. Calman (1888) 110 Ñ. Y. 50, 54. In England the courts have held that no seal is necessary when the contract is for work of a trivial nature, or where it relates to matters of frequent occurrence. To these two exceptions the principal case has added a third.

Criminal Law-REFUSAL TO FURNISH MEDICAL ATTENDANCE TO A MINOR. Held, $288 of the New York Penal Code, which makes it a misdemeanor for a person to wilfully omit to perform a duty by law imposed upon him to furnish medical attendance to a minor is constitutional. The term "medical attendance” means attendance by a person who is a regular licensed physician, under Laws 1880, chap. 513. People v. Pierson (N. Y., 1903) 68 N. E. 243. See Notes, p. 574. CRIMINAL LAW-SUSPENSION OF SENTENCE -Loss of JURISDICTION. Relator was found guilty of grand larceny April 12, 1900.

On his motion, a continuance of his motion for a new trial was made, and he was discharged on his own recognizance. On October 31, 1902, his motion for a new trial was overruled, and on November 11, 1902, he was sentenced. Held, in view of the length of time elapsing between verdict and sentence the court had lost jurisdiction to impose sentence. People v. Barrett (Ill., 1903) 67 N. E. 23.

Except for well-defined reasons the court cannot suspend indefinitely the execution of a sentence already pronounced, since this is in effect a reprieve or conditional pardon. In re Webb (1895) 89 Wis. 354 ; Neal v. State (1898) 104 Ga. 509. But such an order being void, should not discharge the prisoner, any more than an unlawful act by the sheriff. Neal v. State, supra. In People v. Court of Sessions (1894) 141 N. Y. 288, it is held that an indefinite suspension of sentence does not amount to a pardon; but even if it does, it is difficult to see how the court. by a void açt, loses jurisdiction to correct its error. If a sentence is void, the defendant may be resentenced. In re Bonner (1893) 151 U. S. 242. No sufficient authority is found for the contention, in People v. Court of Sessions, supra, that at common law courts had power to indefinitely suspend sentence, though the practice is sanctioned in Com. v. Dowdican's Bail (1874) 115 Mass. 133, and in People v. Patrick (1897) 118 Cal. 332. Domestic RELATIONS-AGENCY OF WIFE FOR PURCHASE OF NECESSARIES. Defendant's wife to whom he gave a generous allowance for household expenses, without his knowledge pledged his credit for “ necessaries," though she was well supplied with similar articles. Held, the husband was not liable. Wanamaker v. Weaver (N. Y. 1903) 68 N. E. 135.

This question though not new in other jurisdictions has never before been passed upon by the New York Court of Appeals. A wife is, in general her husband's agent for the purchase of household supplies. The

agency may be either express, implied in law, or implied in fact. It is implied in law, only when the husband, though able, refuses to support his wife, through no fault of hers, and another furnishes her with necessaries. If, however, he is willing to support her, her agency, if implied at all, is implied in fact and is governed by the general principles of agency. Jolly v. Rees (1864) 15 C. B., N. S. 628. The presumption, arising from the marital relation, that the wife is the husband's agent for the purchase of necessaries is held by all the authorities to be rebuttable if the husband shows that his wife was, in fact, supplied with similar articles or with the means of procuring them. Debenham v. Mellon (1880) L. R. 5 Q. B. D. 394; Clark v. Cox (1875) 32 Mich. 204; Cromwell v. Benjamin (1863)41 Barb. 558: Schouler on Husband and Wife, $ 107. This is the important point in the principal case. It would be interesting to know on what authority the majority of the Appellate Division of the Fourth Department reached the opposite conclusion, as, on this point, not a single case was referred to. Domestic RELATIONS—DOWER-EQUITABLE CONVERSION. A testator provided for the sale of all his property and its conversion into personalty, making no provision for his widow. Held, she was entitled to dower in the real estate and also to share in the proceeds of the real estate under the statute of distribution. Hutchings v. Davis (Ohio 1903) 67 N. E. 251.

It is evident that the widow was entitled to dower. Konvalinka v. Schlegel (1887) 104 N. Y. 125. The ground of the decision is that by the conversion the realty was made personalty for all purposes, hence for distribution. While the courts do speak of a conversion for all purposes” by that expression they simply mean for all the purposes of the will. Craig v. Leslie (1818) 3 Wheat. 563. The case of Dodson v. Hay (1791) 3 Bro. C. C. 405 permits curtesy in personalty converted to realty, the court attempting to draw an analogy between such a case and the case of curtesy in the cestui's equitable estate in land. Sweetapple v. Bindon (1705) 2 Vern. 536 and note. But the court would have found small equity in bestowing curtesy, had distribution also been claimed. The cases of Hoover v. Landis (1874) 76 Pa. St. 454 and Barnett's Adm. (1858) 58 Ky. 254 are opposed to the principal case and point out the error of forcing a fiction to establish that property can be realty and personalty simultaneously for the same purpose. EQUITY_PARTIAL ASSIGNMENT OF A CHOSE IN ACTION-INTENTION OF ASSIGNOR. Held, that a check drawn on a special fund amounts to an equitable assignment pro tanto of the fund and therefore the fact of its non-acceptance is immaterial. Fortier v. Delgado & Co. (C. C. A., 5th Cir. 1903) 122 Fed. 604. Held, a notice mailed to B that A has directed his debtor to pay B out of a special fund, operates from the date of mailing as an equitable assignment, and the bankruptcy of A before the receipt of the notice is immaterial. Alexander v. Steinhardt, Walker & Co. (1903) 2 K. B. 208. See Notes, p. 581, Equity--SUCCESSIVE ASSIGNMENTS OF CHOSE IN ACTION-Priorities. Where one interested in a fund assigned his interest to two successive assignees, held, their priority was determined by the order in which they gave notice to the holder of the fund. Appeal of Moses (Pa. 1903) 55 Atl. 213. But where in a similar case a creditor of the assignor had attached the fund, between the dates of the two assignments, held, the priority of the claims must be governed by the order in which they arose. Appeal of Trust Co. (Pa. 1903) 55 Atl. 216. See Notes, p. 581. EVIDENCE-PRIVILEGE OF A WITNESS-SELF-INCRIMINATION. Held, a witness in any

criminal trial may under $ 6, Art. 1 of the N. Y. Constitution, refuse to answer any question which tends to incriminate him, unless he is granted absolute immunity from prosecution. A guarantee that his testimony shall not be introduced as evidence against him in any subsequent proceeding is not sufficient. People ex rel. Lewisohn v. O'Brien (N. Y. 1903) affirming the decision of the Appellate Division in 81 App. Div. 81. See 3 COLUMBIA LAW REVIEW, 421.

INSURANCE-CHANGE OF BENEFICIARIES-EQUITIES ARISING FROM PAYMENT OF PREMIUMS. The insured under a mutual benefit contract gave the policy to the beneficiary saying, “ If you pay the premiums up to the time of my death the certificate is yours absolutely", and beneficiary paid the premiums. Held, the member might thereafter change the beneficiary. Spengler v. Spengler (N. J. 1903) 55 Atl. 285.

The insured in a mutual benefit society gave the policy to the beneficiary, and after it had lapsed told her to continue the paymen's and she should have the benefit of the certificate. Held, the wife had an equity in the policy preventing the insured from subsequently changing the beneficiary. Supreme Council v. Murphy (N. J. 1903) 55 Atl. 497.

In the first case the court held that in the absence of a contract not to change the beneficiary, since she made the payment with knowledge ofa right in the insured to make such change, no equity arose. This is opposed to the holding in the second case, unless the court, although no express contract was found, be understood to rest the equity in that case upon an implied contract. In the absence of a contract payment of premiums creates no equity in the beneficiary. Fisk v. Equitable Aid Union (Pa. 1887) 11 Atl. 84; Joyce on Insurance, $ 742. Usually, however, an agreement, express or implied can be found. Smith v. National Benefit Society (1890) 123 N. Y. 85; Jory v. Supreme Council A. L. H. (1894) 105 Cal. 20. INSURANCE-SUICIDE_BENEFICIARY's Right. The insured in a benefit society committed suicide. Held, his widow, the beneficiary, cannot recover on the policy, since, having no vested right, but claiming through him, she should not benefit by his wrong. Shipman v. Pro tected Home Circle (1903) 174 N. Y. 399.

The court decides that suicide is expressly excepted from the risk in the policy, but says that in the absence of express terms the result would have been the same. The court limits the New York doctrine that suicide will not avoid the policy in the hands of the beneficiary, Fitch v. American Popular Life Ins. Co. (1875) 59 N. Y. 557, to policies wherein the wife has a vested right, expressly overruling Darrow v. Family Fund Society (1889) 116 N. Y. 537. This exception is not usually made. Supreme Lodge v. Kutscher (1897) 72 111. App. 462; Kerr v. Mutual Benefit Association (1888) 39 Minn. 174; Joyce on Insurance, $S 2648–2661. While it is true that the beneficiary of a benefit insurance contract has no vested right during the life of the insured, Supreme Conclave v. Capella (1890) 41 Fed. I; N. Y. Ins. Law & 238, it is difficult to see how such beneficiary benefits any more by the insured's wrong where the right is vested than where contingent, it being obtained through the insured in either case. The case of Ritter v. Mutual Life Ins. Co. (1898) 169 U. S. 139, cited in the principal case, was decided squarely on the ground, that suicide while sane is not a risk contemplated by the parties, and if consistently followed should preclude recovery whether the beneficiary's right is vested or contingent.

MORTGAGES-ClOG ON THE EQUITY OF REDEMPTION. The defendant mortgaged his shares in a tea company and collaterally agreed that he would always secure the employment by the company of the plaintiff, a tea broker. The mortgage was paid off and the company employed another broker. Held, the agreement constituted a clog on the equity of redemption and was not binding. Bradley v. Carritt (1903) A. C. 253. For a discussion of this question see 2 CcLUMBIA LAW REVIEW, 331.

MORTGAGES-RIGHT OF MORTGAGEE OF SHIP to Freight. In an action of interpleader for freight the plaintiff claimed as assignee of the mortgagor of the vessel and the defendant as mortgagee in possession. Held, the plaintiff was entitled to the freight as it had been earned before the mortgagee took possession. Shillito v. Biggart (1903) 1 K. B. 083.

Although the point had not previously been settled by any direct authority the trend of the earlier English decisions is clearly toward the


rule here laid down. Brown v. Tanner (1868) L. R. 3 Ch. App. 597; Keith v. Wyllie (1877) L. R. 2 App. Cas. 636. The result follows logically from the holding that until the mortgagee takes possession, the vessel is to be regarded simply as collateral security for the debt. Parsons on Shipping and Admiralty, 131. Till then he neither incurs the liabilities nor reaps the rewards of ownership. Jackson v. Vernon (1789) 1 H. Bl. 114; Tenney v. Bank (1865) 20 Wis. 161. The fact that the claim in the principal case remained uncollected until the mortgagee had taken possession clearly should not prejudice the assignee. MORTGAGES-RIGHT OF THE SECOND MORTGAGEE OF CHATTELS TO MAINTAIN CONVERSION: Plaintiff, the second mortgagee of a stock of goods, assumed to go into possession while the first mortgagee was in posses. sion under his mortgage. The action of the second mortgagee was not resisted by the first. The sheriff took the property under a writ of attachment, and the second mortgagee brought an action for the conversion of the goods. Held, his possession was sufficient to maintain the action. Columbia Bank v. American Surety Co. (N. Y. 1903) 84 App. Div. 487. See Notes, p. 578. PLEADING AND PRACTICE-STATUTE OF FRAUDS_DEFENCE UNDER GENERAL DENIAL. In two cases, one involving the promise of a wife to answer for the debt of her husband, Indiana Trust Co. v. Finnitzer (Ind. 1903), 67 N. E. 520, the other based upon a contract not to be performed within a year, Rief v. Riibe (Nebr. 1903) 94 N. W. 517, defendant put in general denial. Held, the Statute of Frauds might be availed of as a defence under that answer. See Notes, P. 576. QUASI-CONTRACTS-ILLEGAL INSURANCE POLICY_RECOVERY OF PREMIUMS. † he plaintiff effected insurance with the defendant on his mother's life, relying on the representation of the defendant's agent that the probability of the plaintiff's having to pay his mother's funeral expenses was a sufficient insurable interest. The agent was honestly mistaken, the policy being illegal and void. Held, the plaintiff could recover the premiums paid. Harse v. Pearl Life Assurance Co. (1903) L. R. 2 K B. 92.

The court allowed the recovery on the ground that in forming the illegal contract the parties were not in pari delicto, as the plaintiff was entitled to rely on the representations of the agent as to matters of insurance law. The case would not seem to be one for the application of the rule in pan delicto. Keener on Quasi-Contracts, 259. Waiving this point, however, the difficulty remains that the plaintiff paid the premiums under a mistake of law and under the general rule could not recover. If upheld, the case furnishes another exception to that general rule. In British Workman's Co. v. Cunliffe, (1902) 18 T. L. R. 425, 502, relied on by the court, the agent knew that the plaintiff had no insurable interest and the Court of Appeal affirmed the case expressly on that ground. QUASI-CONTRACTS-PLAINTIFF WILLFULLY IN DEFAULT UNDER CONTRACT. Where the plaintiff, without fault of the defendant, abandoned his contract for services as farm hand, held, the plaintiff could recover, on a quantum meruit, the value of such services, less the damage caused the defendant by his breach. Murphy v. Sampson (Neb. 1902) 96 N. W. 494. For a discussion of the principle involved, see 1 COLUMBIA LAW REVIEW 493. Quasi-CONTRACTS—WAIVER OF Tort-DECEIT IN INDUCING CONTRACT NOT ŘESCINDED. A stockholder of one of two merging corporations misrepresented the value of the assets of that corporation, to be transferred for stock in merged corporation, securing more stock than he would have been entitled to upon a fair representation. The merged corporation sued for the value of stock to which he was not so entitled, he having sold the whole allotment. Held, there could be no recovery on count for money had and received. Anderson Carriage Co. v. Pung's (Mich. 1903) 95 N. W.985.

Though hard to support on principle, this case is in line with the authorities. Ferguson v. Carrington (1829) 9 B. & C. 59; Galloway y. Holmes (Mich. 1844) 1 Doug. 330; Bedier v. Fuller (1898) 116 Mich. 126. The court holds that the bringing of the action upon a promise implied in law was inconsistent with the existing express contract, that owing to the doctrine of the entirety of contract no recovery could be allowed unless the original contract were wholly rescinded. A promise implied in law seems to be confused with one implied in fact, the latter of which the law never allows in case there is an express promise. The former is purely fictitious and should be allowed whenever the defendant holds that which equitably belongs to plaintiff whether through a pure tort or a tortious and fraudulent contract. Keener on Quasi Contracts, 198.

REAL PROPERTY-PERCOLATING WATERS 5-CURRELATIVE RIGHTS. In an action to restrain the malicious waste by defendant of the water of his artesian well, and the consequent interruption of the natural flow from plaintiff's well, held, (1) the defendant has a right to use the water percolating through his land as he pleases and such right is not affected by malicious intent. (2) A statute rendering the defendant liable for waste is unconstitutional as taking private property for private use without compensation. Haber v. Merkel (Wis. 1903) 94 N. W. 354.

The case follows the common law rule that the owner of land bas a right to use water percolating through his land in any way he may elect. This is a property right incident to the ownership of the land. Sce 3 Columbia Law REVIEW, 109. Malice is immaterial. Chatfield v. Wilson (1855), 28 Vt. 49. The principal case is to be distinguished from the New York cases, which were exceptional in their facts, discussed in 1 COLUMBIA Law REVIEW, 120, 505 ; 3 COLUMBIA LAW REVIEW, 425. It would be a great extension of the police power to hold the statute constitutional for the statute did not benefit the public but only the neighboring landowner.

REAL PROPERTY-SALE BY EXECUTOR-CAVEAT EMPTOR. An executor, in advertising the auction sale of a ground rent, innocently misdescribed it as “ on the Calverton Stockyards.' At the sale he innocently misrepresented that the ground was occupied by the firm of G. and J. Held, the misdescription and misrepresentation entitled the purchaser to rescind. Doyle v. Whitridge (Md. 1903) 55 Atl. 459.

The case is meagerly reported, but it would appear that the groundrent was regarded as real estate, and the sale, being made by an executor under order of court, as a judicial sale. It would seem, then, that the case should fall within the general rule that“ in Maryland * * * as to all judicial sales, the rule caveat emptor applies.” Brown v. Wallace (Md. 1830) 2 Bland 585; Bolgiano v. Cooke (1865) 19 Md. 375. If the principal case stands for the proposition that a purchaser from an executor is not bound by caveat emptor, it establishes for Maryland a rule opposed to the overwhelming weight of authority in this country. Tilley v. Bridges (1883) 105 Ill. 336; Arnold v. Donaldson (1888) 46 0. St. 73. None of the cases cited in the principal case present the question whether caveat emptor applies to sales by executors. Tomlinson v. McKaig (Md. 1847) 5 Gill 256 and Keating v. Price (1882) 58 Md. 532 те: to sales by trustees. Rayner v. Wilson (1875) 43 Md. 440 involves the construction of a contract. Gunby v. Sluter (1875) 44 Md. 237 holds that caveat emptor does not apply to a sale of real estate. It would be difficult to find any authority to support the last named case.

TAXATION--ASSESSMENT OF CAPITAL OF NON-RESIDENT PARTNERSHIP. Where a statute provided that non-residents doing business in the state as partners should be taxed on the capital invested in such business as personal property at the place where such business was carried on, held, that an assessment in the firm name was valid, the tax being against the property and not against the individuals owning it. People v. Wells

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