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bility. That liability arises from the character of the promise, and the interest in the principal contract and the benefit to be derived from it becomes a matter of consideration only as they may serve to determine that character. Clay v. Walton, 9 Cal. 328. The vital point in cases of this class is: Was the contract original? Payne v. Baldwin, 14 Barbour 570. In order that the promise may be held to be within the statute it is essential that there be a binding and subsisting obligation or liability to the promisee to which the promise is collateral. 151 Ill. 175. The evidence required to change a contract relation between a plaintiff and a third party and to prove a promise to pay the debt of another as a new and original undertaking and not a contract of suretyship, must be clear and satisfactory; otherwise it will fall within the statute. Haverly v. Mercer, 78 Pa. 257. A case directly in point is Diringer v. Moyniham, 10 N. Y. Supp. 540, which held that a promise by defendant to see that workmen of sub-contractor were paid was a promise to pay debt of another, and, not being in writing, was unenforceable.

CONTRIBUTORY Negligence-Questions for Jury.—Crauch vs. Brooklyn HEIGHTS Ry. Co., 129 N. Y. ST. REP. 169.-Plaintiff was injured at a grade crossing while proceeding to defendants' station-Held, that the fact that the plaintiff had seen a train approaching and had not waited to see if train would stop at the station, was not, under all circumstances, negligence in law.

It is established universally and beyond a doubt that negligence and contributory negligence are questions of fact for the jury, except in rare cases. Burns v. Town of Elba, 32 Wis. 605; Balt. & Ohio R. R. Co. v. Shipley, 31 Md. 370. That there are exceptional cases is unquestioned. Tyson v. Tyson, 37 Md. 567-581; Balt. & Ohio R. R. Co. v. Fitzpatrick, 35 Md. 32. But there is hopeless conflict on these cases. Compare the following: Butler v. R. R. Co., 126 Pa. St. 160; Lewis v. Balt. & Ohio R. R. Co., 38 Md. 588; Brown v. Barnes, 151 Pa. St. 562; Moore v. Westervelt, 21 N. Y. 103. In some states the question is controlled by the fact that the burden of showing ordinary care is put on the plaintiff. Alger v. City of Lowell, 3 Allen 402; Cramer vs. City of Burlington, 42 Iowa, 315. But see Bradwell v. Pittsburg & West End Ry. Co., 139 Pa. St. 404; Brown v. Traction Co., 14 Pa. Sup. Ct. 594. For a case where there is no room for doubt see Balt. City Pass. Ry. Co. v. Wilkinson, 30 Md. 224.

CORPORATIONS-EMINENT Domain-Legality of Corporate ExistENCE.EDDLEMAN ET UX. v. UNION County Traction & Power Co., 75 N. E. 510 (ILL.). Held, that the legality of the existence of a corporation cannot be attacked in condemnation proceedings instituted by it, but only in a direct proceeding by quo warranto.

The better rule seems to be as announced in the opinion above. W. & P. R. Co. v. C. & C. R. & L. Co., 114 N. C. 690; Morrison v. Forman, 161 Ill. 247; Niemeyer v. Little Rock Junction Ry., 43 Ark. 111. But some courts hold that a de jure corporate existence must be shown when it is sought to take property by eminent domain. In re Brooklyn W. & N. Ry. Co., 72 N. Y. 245; Powers v. H. & L. Ry. Co., 33 Oh. St., 429; Orrich School Dist. v. Dorton, 125 Mo. 439. De jure corporate existence must be set up in actions by a corporation to collect subscriptions made prior to incorporation. Indiana F. & M. Co. v. Herkimer, 46 Ind. 142; Schloss v. Montgomery Trade Co. 87 Ala. 414. The subscriber may be estopped to attack the corporate existence if he participated in the formation of the corporation. Bell's Appeal,

151 Pa. St. 88; Musgrove v. Morrison, 54 Md. 161. In an action for subscriptions made after incorporation, de facto existence need not be shown. Casey v. Galli, 94 U. S. 673. As in eminent domain proceedings, there is also a difference of opinion as to whether de jure corporate existence need be shown in actions by corporations to collect assessments for benefits. That it must be shown, see Dusenback v. Attica & B. G. Road Co., 43 Ind. 265. That it need not be, see Evans v. Lewis, 121 Ill. 478; Reclamation Dist. No. 542 v. Turner, 104 Cal. 334.

CRIMINAL LAW-REMARKS OF PROSECUTING ATTORNEY-ERROR. PEOPLE V. WOLF, 95 N. Y. SUPP., 264.-Held, that the remarks of the prosecuting attorney to the jury cannot be made the basis of error where they have no tendency to create greater passion or prejudice than the admitted facts in evidence created. McLaughlin and Ingraham, JJ., dissenting.

As to what comments by counsel to the jury may be made the basis of error the courts are not all agreed. It has been held that intemperate language calculated to prejudice the jury and prevent a fair trial is ground for reversal. Cargill v. Commonwealth, 13 S. W. (Ky.) 916. But the objection to such remarks must be made promptly. Grosse v. State, 11 Tex. App. 364. So, also, where the accused has failed to testify in his own behalf, this may not be commented on by the prosecutor. Price v. Commonwealth, 77 Va. 393. Abusive language towards the defendant will be ground for reversal. State v. Young, 90 Mo. 666; Stone v. State, 22 Tex. App. 185; though the contrary has been held, Anderson v. State, 104 Ind. 467. But any characterization of the defendant, there being evidence to sustain such expressions, will be allowed. State v. Brooks, 92 Mo. 542.

DAMAGES-Mental SurferING.-WOODSTOCK IRON WORKS v. STOCKDALE, 3) S. W. 335 (ALA.).—Held, that a husband cannot recover damages for mental suffering to himself caused by the illness of his wife.

In actions for injury to persons mental suffering is an element of damage as an incident to the bodily suffering. Chicago v. McLean, 133 Ill. 148. But mental suffering for the injury to others is no ground of action. Cowden v. Wright, 24 Wend. 429; Long v. Morrison, 14 Ind. 595. And such has been the holding, as in the principal case, even when it is the husband's mental suffering for his wife's injury. Hyatt v. Adams, 16 Mich. 180. Some of the states, however, have made an exception to this rule in the case of telegraph companies, allowing a person who has suffered mental anguish through failure of delivery of a telegram to recover damages. Relle v. Telegraph Co., 55 Tex. 308; Tel. Co. v. Crocker, 135 Ala. 492. Even in Texas, where this rule was started, it is confined to telegraph cases and exceedingly limited. Tel. Co. v. Splar, 126 Fed. 295. However most states decline to follow it. Giddens v. Tel. Co., 111 Ga. 824.

EJECTMENT-INTEREST RECOverable-Mineral Rights.-Moragne et al v. Doe ex dem. Moragne, 39 S. E. (Ala.) 161.—Held, that an administrator may maintain ejectment to recover a mineral interest in lands.

"Ejectment will lie only for things whereof possession may be delivered by the sheriff." Black v. Hepburne, 2 Yeates 333. The thing claimed must be a corporeal hereditament. Rowan v. Kelsey, 18 Barb. 484. In this term have been included a room in a house, Otis v. Smith, 26 Mass. 293, and a real fixture, Stancel v. Calvert, 60 N. C. 104. But the action will not lie for a

mere license, a right of way, or an easement. Hancock v. McAvon, 151 Pa. St. 460. The English courts formerly treated all grants of minerals as incorporeal hereditaments because no livery of seisin could be made, but the general rule to-day is that such a grant passes an interest in land. Caldwell v. Fulton, 31 Pa. 475; Fairchild v. Dunbar Furnace Co., 128 Pa. 497. In some cases, however, grant of right to take minerals from land, not being exclusive right to mineral products, is considered a mere license. Silsby v. Trotter, 29 N. J. Eq. 228. But see Beatty v. Gregory, 17 Iowa, 109, where licensee, after entry and expenditure of labor and money, was allowed to maintain eject

ment.

EQUITY-CANCellation of Instruments-FRAUD-REMEDY AT LAW. WILson et al v. Miller, 39 Southern, 178 (AlA.). Held, that the deed, under which a plaintiff claims in ejectment, will not be cancelled, on the ground that the deed and record have been fraudulently altered. Haralson, J., dissenting.

If an action at law on an instrument in writing can be fully defended on the ground that it was obtained by fraud, the defendant cannot file a bill for the cancellation and surrender of the document. Cable v. U. S. Life Ins. Co., 191 U. S. 288. In actions of ejectment defendant may show invalidity or fraud of plaintiff's title. Sherman v. Buick, 93 U. S. 209; Rogers v. Brent, 10 Ill. 573. If there is an action pending against one in a suit at law wherein his title may be put in issue and established, there is no equity in a bill to quiet title, and such a bill will be dismissed. Normant v. Eureka Company, 39 Am. St. Rep. 45. Equity will entertain jurisdiction to remove cloud where complainant is in possession or from other cause without adequate legal remedy. I. Story Eq. Juris. Page 745, Note A; Sullivan v. Finnegan, 101 Mass. 447. In order that equity may cancel a deed it must constitute a cloud on title. In other words, it must be prima facie evidence of title. Bispham's Equity, 449.

EVIDENCE-COMPELLING PRODUCTION OF DOCUMENTS-SUBPOENA DUCES TECUM.-MILLER V. MUTUAL RESERVE FUND LIFE ASSN., 139 FED. 864.— Where a subpœna duces tecum required the production of a large list of books and papers, many of which apparently can have no bearing on the issues raised by the pleadings, held, that the court will not punish the party for contempt for failure to obey the subpæna, but the party applying will be required to take out separate subpænas, each of which may then be considered on its merits.

The judge in this case evidently considered the spirit much more than the letter of the law as the general rule is in line with the statutory provisions that the party must attend with the documents demanded and leave the question of their admission to the discretion of the court. Reynolds on Ev., p. 168; In ex parte Brown, 7 Mo. App., 484, a manager of a telegraph office refused to produce his dispatch files, attempting to excuse himself under a statute which provided for punishment of any officer or servant of a telegraph company disclosing the contents of a dispatch, but he was obliged to produce the files or be in contempt. The penalty laid down in Col. Fire Co. v. Purcell, 25 La. Ann., 283, was that the party not producing books and papers under the subpæna should not be in contempt, but that the facts stated in the application may be taken as proved. Nor may an attorney refuse to submit his client's papers under his privilege as attorney, as this would be assuming

the right of the court which alone can determine the question of privilege in each case. Mitchell's Case, 12 Abb. Prac. (N. Y.).

EVIDENCE-DECLARATION OF AGENT AFTER CONCLUSION OF AGENCYADMISSIBILITY.—Burbank v. Hammond, 75 N. E. 102 (MASS.).— Held, that a letter of a land broker written after the consummation of a sale, and tending to show that he knew of false representations made therein, is inadmissible, although the broker is still employed to care for the property.

While it is beyond controversy that declarations to be admissible must constitute a part of the res gestae, courts are not harmonious in decisions as to what constitutes a part of the transaction. The declaration of an agent that land was not as he had supposed and had represented is inadmissible after the deal has been closed, although it appears that both buyer and agent were deceived. Lake v. Tyree, 90 Vir. 719. While evidence of what an agent said relative to a past transaction is not admissible to prove the contract itself it is competent to contradict the agent's statement that no such contract was, in fact, made. Stenhouse et al. v. C. C. & A. R. R., 70 N. C. 542; although the agent may continue in the principal's employ. McComb & Wallace's Admr's. v. N. C. R. R. Co., 70 N. C. 178. That modern cases have relaxed the rule requiring "perfect coincidence" would appear from dissenting opinion in Vicksburg, etc., R. R. Co. v. O'Brien, 119 U. S. 99.

EVIDENCE-PRIVILEGED COMMUNICATIONS.-BROWN v. Moosic MT. COAL Co., 61 ATL. 76 (PA.).—Held, that where two persons employ the same attorney, communications to him are not privileged inter se.

This is an exception to the rule that communications between attorney and client are privileged. It is well supported. Doheny v. Lacy, 168 N. Y. 213; Bauers' Estate, 79 Cal. 304. So where both parties are present, Hanlon v. Doherty, 109 Ind. 37; Cody v. Walker, 62 Mich. 157. And where terms of compromise are offered a client's creditors, McTarish v. Denning, Anth. N. P. 155. But the communications are privileged when parties employ the same attorney for adverse interests. Bowers v. Briggs, 20 Ind. 139, Hull v. Lyon, 27 Mo. 570; as are also communications by one of two joint defendants under arrest to their joint attorney. Jahnke v. State, 94 N. W. 158 (Neb.).

FRAUDULENT Conveyances-Debts.-Vreeland v. Rogers, et al., 61 Atl. 486 (N. J.).—A judgment creditor attempted to attach property conveyed by the defendant prior to the judgment, on the ground that the conveyance was void as in defraud of creditors. Held, the onus was on the complainant to show fraud.

The burden of proving fraudulent intent is on a subsequent creditor who impeaches a voluntary conveyance. State Bank of Chase v. Chalton, 69 Kan. 435. Loeschigk v. Addison, 4 Abb. Practice, U. S. 210; Wynn v. Mason, 72 Miss. 424. Lewis v. Simon, 72 Tex. 470, even goes so far as to say that a subsequent creditor cannot attack the conveyance as fraudulent. It is proper to instruct the jury that the presumption is against fraud in such a conveyance. But by statute in some states, where the property does not actually change hands, the onus is on the grantee to show good faith. Seidenbach v. Riley, 111 N. Y. 560; Car v. Johnson, 59 Hun. 620.

INJUNCTION-Adequate LegAL REMEDY-MAINTENANCE OF RAILROAD STAtion.—Jacquelin et al. v. Erie R. Co., 61 ATL. 18.(N. J.).—Held, the right, if any, to compel a railroad to maintain a station at a certain point is a legal one,

enforceable by mandamus, and not by injunction, to prevent discontinuance of the station.

An injunction will not be granted to restrain a railroad from removing depot. Moore v. Brooklyn R. Co., 108 N. Y. 98, or to compel establishment of station, Baldwin on Railroads, p. 176; Atchinson, T. & S. F. R. Co. v. Denver & New Orleans R. Co., 110 U. S. 667. When the legislature has imposed the duty of maintaining and establishing stations clearly and specifically mandamus is the proper action to compel railroad to carry out its duty. Com. v. Eastern R. Co., 103 Mass. 254. But when there is no legislative action with reference to these duties the courts are helpless. Northern Pacific R. Co. v. Washington Territory, 142 U. S. 492; Some of the state courts have, however, held that, independently of any statutory requirements, a railroad might be compelled to establish a station when the court deemed it necessary in the interest of the public. State v. Republican Valley Railroad, 17 Neb. 647. The Illinois courts, in some cases, have shown inclination to follow this view. People v. Chicago & Alton Railroad, 130 Ill., 175.

INJUNCTION-CONTRACTS IN RESTRAINT OF TRADE-SUIT BY ATTORNEY GENERAL.—McCarter, Atty. Gen., v. FIREMEN'S Ins. Co., 61 ATL. 705 (N. J.).— Held, in the absence of a statute authorizing it, the attorney general may not maintain a suit to enjoin insurers carrying out an agreement regulating rates, though against public policy as in restraint of trade; and the fact that the insurers are private corporations makes no difference.

Nowhere in this decision is there any reference to the right of the state "to obtain a judgment merely ousting it (the corporation) from the further exercise of an unauthorized power." Marshall on Private Corporations, Sec. 82. An opposite holding on a state of facts involving the same principle was People v. North River Sugar R. Co. 121 N. Y. 582. That the attorney general in this case was within his powers see Atty. Gen. v Del. & B. B. R. R., 12 C. E. (N. J.) 631. The general powers of the attorney general gives him the right to bring such actions. McMullen v. Circuit Judge, 102 Mich. 608. And the implied power of the attorney general, independent of statute, is sustained in Board of Comrs. v. State, 92 Ind. 353. When the managing body of a corporation are doing, or about to do, an ultra vires act of such a nature as to produce public mischief, the attorney general, as representative of the public may maintain an equitable suit for preventative relief. Pomeroy Eq. Jurisprudence, Sec. 1903. It would seem that agreements in restraint of trade made between corporations ought to come within the category of public mischief.

MANDAMUS-Original JurisdiCTION OF FEDEral Circuit Court.—UniTED STATES EX REL. INTERState CommercE COMMISSIONERS V. LAKE SHORE & MICHIGAN SOUTHERN RY. Co., 25 Sup. CT. 538.—In an action relying on the Inter State-Commerce, Act of 1887, it was attempted to compel an interstate carrier by mandamus proceedings to make a report to the commissioner, held that under the act no such jurisdiction of an original proceeding by mandamus is conferred upon a Federal circuit court. Harlan, J., dissenting.

In interpreting the judiciary act of 1789 (1 Stat. at L., chap. 20, sec. 11, 14.) the Supreme Court decided that circuit courts possessed no such power. McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat. 598. Such rulings are not in conflict with the authority which is given to the Supreme Court of the District of Columbia to issue writs of mandarius in cases in which the parties are by the common law entitled to them. United

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