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In general where the lex domicilii coincides with the lex loci contractus in giving a person capacity to marry, the marriage contracted by him will everywhere be recognized as valid. Sutton v. Warren, 10 Met. 451. Nevertheless a marriage deemed incestuous by the general consent of Christendom will not be recognized. See STORY, CONFLICT OF LAWS, § 114. Such marriages, however, are those only which are in direct line of consanguinity, or between brother and sister. Wightman v. Wightman, 4 Johns. Ch. 343; Stevenson v. Gray, 17 B. Mon. 193. The court in the principal case makes a further exception of marriages which are incestuous by statute of the particular state in which recognition of the marriage is sought. The weight of authority in this country is to the contrary. Stevenson v. Gray, supra; Commonwealth v. Lane, 113 Mass. 458. In England, there are dicta on both sides of the question. Brook v. Brook, 9 H. L. Cas. 193; Fenton v. Livingstone, 3 Macq. H. L. 497; Sottomayor v. De Barros, 3 P. D. 1. Since marriages between uncle and niece are permitted by many states, a rule like that contended for in the principal case might cause much hardship. Whether the parties shall be allowed to live together in violation of the criminal statutes is quite a different question.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW FRONT FOOT RULE. — An assessment for the paving of a street was levied on the abutting owners according to the "front foot rule." Held, that the assessment does not violate the Fourteenth Amendment. Zehnder v. Barber, etc., Co., 108 Fed. Rep. 570 (Cir. Ct., Ky.). See NOTES, p. 307.

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CONSTITUTIONAL LAW LEGISLATIVE QUESTION-POPULATION OF COUNTIES. -County commissioners being about to issue bonds, the plaintiff asked for an injunction against them on the ground that the county at the time of its creation by statute had not the number of voters required by the constitution. Held, that the injunction will not issue, because the question whether the constitutional requirement as to population was satisfied is one exclusively of legislative cognizance. Farquharson v. Yeargin, 64 Pac. Rep. 717 (Wash.).

There is at least one contrary decision on exactly the same point. Bridgenor v. Rogers, 1 Cold. 259. Furthermore, there would seem to be no difference in principle between the application of a constitutional provision as to the population of counties and of a similar clause regarding area. This substantial identity being recognized, the weight of authority is strongly against the principal case. McMillan v. Hannah, 61 S. W. Rep. 1020. It is submitted, however, that the case represents the better doctrine. It is well settled that under our system many constitutional provisions raise questions on which the legislature or the executive is the final judge; and the courts must then accept the decision, which is as conclusive as those of the courts in cases of judicial cognizance. Field v. Clark, 143 U. S. 649; Luther v. Borden, 7 How. 1, 42. The line between legislative and judicial questions is not always easy to draw, but it would seem that the legislature is better constituted than the judiciary to decide questions like that in the principal case. Moreover no advantage is apparent from allowing judicial revision of the legislative action, which is not overbalanced by the obvious inconvenience resulting. Two previous decisions have been found in support of this view. De Camp v. Eveland, 19 Barb. 81; Lusher v. Scites, 4 W. Va. II.

CONTRACTS - CONSIDERATION - FORBEARANCE OF A BONA FIDE CLAIM.- Held, that forbearance to prosecute a claim honestly made but not legally valid is no consideration for a promise. Price v. First Nat. Bank, 64 Pac. Rep. 639 (Kan.).

The rule here followed was repudiated in England by the case of Callisher v. Bischoffsheim, L. R. 5 Q. B. 449 (1870). In America some jurisdictions support the doctrine of the principal case. Bates v. Sandy, 27 Ill. App. 552. Yet the weight of authority inclines toward the English rule. Prout v. Pittsfield Fire Dist., 154 Mass. 450. It would seem that detriment to the promisee is the scientific test of consideration. See LANG., SUM. CONT. 45 et seq. But there are two theories as to the application of this test. One holds that detriment includes any act or forbearance given in exchange for a promise. See 12 HARV. Law Rev. 515 et seq. Under this view the principal case is clearly unsound. But the prevailing opinion seems to be that the act or forbearance must be one not required by previous legal obligation. See 8 HARV. LAW REV. 27 et seq. Regarding consideration from the standpoint of the parties at the time of the agreement, as the law seems properly to do, the second theory will not support the principal case; for one honestly believing his claim to be valid has a legal right to litigate it, and in forbearing, does what he was not legally bound to do. See,

however, LANG., SUM. CONT. §§ 56, 57. The principal case is further open to the practical objection that it discourages compromise.

CONTRACTS-CONSIDERATION SUBSCRIPTION TO CHURCH FUND. The defendant signed a subscription paper for the purchase of a church site, and the church afterward contracted for the land. Held, that the defendant's promise is supported by a valid consideration and enforceable. First Church v. Pungs, 86 N. W. Rep. 235 (Mich.). See NOTES, p. 312.

CONTRACTS- CONSIDERATION

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SUCCESSIVE Promises of tHE SAME PERFORMANCE.- Held, that the promise of one party to an existing contract to perform his obligation under that contract, is not a valid consideration for a new promise by the other party. Wescott v. Mitchell, 50 Atl. Rep. 21 (Me.).

In this country there has been a long continued conflict in both opinion and judicial decision on the question raised by the principal case. Some courts have held the consideration valid and the contract good on the ground of an implied rescission of the former contract. Goebel v.. Linn, 47 Mich. 489. This theory is applicable only when the first contract was bilateral, and moreover there is generally no evidence that the parties intended a rescission. Again the validity of the second contract has been defended on the theory that any promise given in exchange at the request of the other party is good consideration, and that there should be no attempt to determine the value of the promise. See 13 HARV. LAW REV. 29. It seems, however, the better view, and one supported by at least a balancing weight of authority, that the law will not regard as a detriment a promise to perform what one is already bound to the promisee to do. Ayres v. Chicago, etc., R. R. Co., 52 Iowa 478; see 8 HARV. LAW REV. 27. The law in England seems to be settled in accord with this view. Frazer v. Hatton, 2 C. B. N. S. 510.

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CONTRACTS - EXCUSE

REPUDIATION - ELECTION NOT TO TREAT AS BREACH. -Held, that when a contract of mutual obligation is repudiated by one party, and the other party has not elected to treat such repudiation as a breach, the latter is not excused from continuing to perform on his part. Smith v. Georgia Loan, etc., Co., 39 S. E. Rep. 410 (Ga.). See NOTES, p. 306.

CONTRACTS-NOTE EXECUTED ON SUNDAY SUBSEQUENT PROMISE. —A note was delivered on Sunday in payment of the difference on an exchange of personal property concluded on that day. On a subsequent week-day the maker of the note made an express promise to pay the amount. Held, that the payee is entitled to recover against the maker. Brewster v. Banta, 49 Atl. Rep. 718 (N. J., Sup. Ct.).

Contracts made on Sunday are generally rendered illegal by statute, and the courts commonly refuse all aid to either party. Block v. McMurray, 56 Miss. 217. Recovery, therefore, in cases like the principal one, is hard to sustain. The new promise cannot be treated as waiving a purely personal defence, for contracts like this are uniformly held void. No subsequent ratification can possibly validate such an agreement. Reeves v. Butcher, 31 N. J. Law 224. On the other hand, it seems impossible to support action on the new promise without conceding the adequacy of moral consideration. Apart from certain well-defined exceptions which do not cover the principal case, this concession is generally denied, even in New Jersey. Updike v. Titus, 13 N. J. Eq. 151; see 15 HARV. Law Rev. 73. The principal case represents an existing tendency to avoid the hardship resulting from declaring Sunday contracts void, where something of value has passed between the parties. See Catlett v. Trustees, etc., 62 Ind. 365. Substantial justice would, however, be more logically attained by declaring the transaction inoperative to create rights or to pass title, allowing recovery back of anything delivered or paid. Such recovery has been allowed in at least one state. Tucker v. Mowrey, 12 Mich. 378; see also Havey v. Petrie, 100 Mich. 190. CORPORATIONS LEGAL STATUS OF ENGLISH TRADE UNIONS.-Held, that an injunction will lie against a registered trade union in its registered name. Taff Vale Ry. Co. v. Amalgamated Soc. of Ry. Servants, [1901] A. C. 426. See NOTES, p. 311.

CRIMINAL LAW - LARCENY BY TRICK-FRAUDULENT GAMING. The prosecuting witness in good faith engaged in a game of cards with the defendant and others. He placed his stake on the table before him, and allowed it to be taken by the confederates of the defendant without protest when he had lost the bet. The game was

won by fraud, and the defendant enticed the prosecuting witness into it and partici. pated in the fraud. Held, that the defendant was guilty of larceny. State v. Skilbrick, 66 Pac. Rep. 53 (Wash.).

This was clearly not ordinary larceny, for the money was taken with the consent of the owner. The question remains whether it was larceny by trick or obtaining property by false pretences. The fundamental distinction between these two is that in the former the owner intends to part with possession only and in the latter to part with both possession and title. Regina v. Solomons, 17 Cox C. C. 93; Smith v. Peo ple, 53 N. Y. III. The courts have in terms recognized this distinction, even when they have gone far toward destroying it by straining the facts in sustaining_convictions for larceny. Regina v. Russett, [1892] 2 Q. B. 312; People v. Rae, 66 Cal. 423. In the principal case it seems clear that the prosecuting witness retained possession of the money till the cards were displayed, and then consented to give up possession and title together. If the distinction is to be maintained this must be held to be obtaining money by false pretences and not larceny.

DAMAGES CONVERSION WILFUL AND INNOCENT WRONGDOers. The defendant, having wilfully converted goods of the plaintiff, increased their value by his labor. Held, that he is liable in trover for the value at the time the action was begun, without deduction for his labor. Central Coal, etc., Co. v. John Henry Shoe Co., 63 S. W. Rep. 49 (Ark.).

By way of dictum the court says that the measure of damages as against an innocent wrongdoer would be the value of the goods at the time of the original conversion. The rules laid down in the decision and the dictum are the same as those of the Civil Law. WOOD, INSTS. CIVIL LAW, 92. The early common law also seems to support them. 2 KENT, Com., 363. The weight of American authority is to the same effect. SEDGWICK, DAMAGES, 88; see also Woodenware Co. v. United States, 106 U. S. 432. The reason given for the distinction is that it tends to check wilful wrongdoing. The soundness of this appeal to public policy is at least doubtful. The aim of our law in redressing private wrongs would seem properly to be merely to compensate, and not to punish. If the owner receives the value of the goods at the time of the original conversion, with interest, his actual loss at the hands of the wrongdoer is fully recompensed, and at this point the law ought to stop. There is some authority in support of this view and opposed to the distinction drawn in the principal case. Single v. Schneider, 30 Wis. 570. The question here discussed is to be distinguished from that of exemplary damages.

DEATH BY WRONGFUL ACT

PREMATURE BIRTH NEGLIGENTLY CAUSed. The defendant's negligence caused the premature birth of a child, and this resulted in the child's death. Held, that the defendant is not liable under the usual statute allowing an action for death by wrongful act. Gorman v. Budlong, 49 Atl. Rep. 704 (R. I.). See NOTES, p. 313.

EQUITY SPECIFIC PERFORMANCE - ENTIRE CONTRACT FOR THE SALE OF REALTY AND PERSONALTY. Held, that a single contract for the sale of a plantation together with the stock, implements and supplies thereon may be specifically enforced as an entirety. Brown v. Smith, 109 Fed. Rep. 26 (Cir. Ct., S. C.).

It is well settled that ordinarily a contract for the transfer of a chattel will be specifically enforced only where the chattel to be transferred has some unique, sentimental, or artistic value. Dowling v. Betjemann, 2 Johns. & Hem. 544. It is equally well settled however as a general principle, that where the plaintiff is entitled to equitable relief and also to legal relief, equity on taking jurisdiction will, to avoid multiplicity of suits, do complete justice, although in doing so it may decree on matters otherwise cognizable only at law. See POм., EQ. JUR. § 181. The contract in the principal case being in part for the conveyance of land, it seems proper for equity to take jurisdiction; and if so it is strictly in accord with equitable principles that specific performance be decreed as to the chattels, in a suit on the whole contract, and that the plaintiff be not forced to sue at law for damages in respect to them. Authority on the point is very meagre; but the cases found apply the same rule as the principal case. Leach v. Fobes, 77 Mass. 506, 510; Perin v. Megibben, 53 Fed. Rep. 86, 91.

EQUITY SPECIFIC PERFORMANCE INADEQUACY OF CONSIDERATION. The defendant, having reason to think he could sell a lot of land to X provided he could

convey it with an adjoining strip, contracted to buy the strip from the plaintiff, who, knowing the defendant's position, made the price excessive. X subsequently declined to buy. Held, that specific performance, being inequitable, will not be decreed. Es pert v. Wilson, 60 N. E. Rep. 923 (Ill.).

Relief by specific performance of a contract over which equity has jurisdiction, undoubtedly rests on the sound discretion of the court, upon consideration of the circumstances. See Radcliffe v. Warrington, 12 Ves. Jun. 326, 331. But the exercise of that discretion seems to be regulated by certain broad rules. It is generally said that where the contract imposes great hardship, or where unfair advantage has been taken, equity will not act. See Seymour v. Delancy, 3 Cow. 445, 505. But where the hardship objected to was foreseeable, and the parties contracted deliberately with open eyes, specific performance has often been granted. Adams v. Weare, 1 Bro. Ch. 567. Accordingly many cases hold that mere inadequacy of consideration is not sufficient to bar the remedy. Ready v. Noakes, 29 N. J. Eq. 497. On principle the contracting parties, rather than the court, should be the judges of the value to them of a contract. The position of the court in the principal case, in refusing to enforce what is simply a hard bargain, seems contrary to the modern tendency.

EVIDENCE CONFESSIONS PRIVILEGE. ADMISSIBILITY OF TESTIMONY BEFORE GRAND JURY. Held, that the testimony of the accused before a grand jury, which was investigating the crime for which he was subsequently indicted, was properly admitted as evidence against him at the ensuing trial. Wisdom v. State, 61 S. W. Rep. 926 (Tex., Cr. App.). See NOTES, p. 308.

EVIDENCE HEARSAY INTENT. — In a prosecution for attempting to bribe an election judge to sell an official ballot before the election, the defence was that the sole intent of the accused in offering the money was to persuade the judge to produce the ballot, which he had no right to have in his possession at that time, in order that he might be arrested with the ballot in his hands. To prove this intent, the accused proposed to show, by a conversation between the mayor and himself, the plan he was pursuing. Held, that such evidence was improperly excluded as hearsay, since the conversations were part of the res gesta and were also competent as declarations of intention. Banks v. State, 60 N. E. Rep. 1087 (Ind.).

In general, when intention is material, a party's declarations as to his intent, though in their nature hearsay, are admitted according to the best view as an exception to the hearsay rule. Mutual, etc., Ins. Co. v. Hillmon, 145 U. S. 285; see 7 HARV. LAW REV. 117. Many courts, as in the principal case, place the admission of such evidence on the ground of res gesta. But this term seems properly applicable only to cases of declarations practically simultaneous with the acts charged and explanatory thereof. These are to be distinguished from declarations of intention not simultaneous with the acts in question. State v. Hayward, 62 Minn. 474, 497. The result in the principal case, however, is sound on the second ground. It is interesting for the very proper decision that not only the language of the declarant himself is admissible, but also the other half of the conversation, which is so intimately connected with the declarations as to be necessary for their proper understanding.

EVIDENCE JUDGMENT AS LINK IN CHAIN OF TITLE. The plaintiff in an action of ejectment, in order to deduce title in himself from X, offered in evidence a judgment in a former action of ejectment brought by the plaintiff's predecessor against X, to which the defendant was not a party or privy. A statute made a judg ment in ejectment conclusive as to title upon parties and privies. Held, that the judgment, though not conclusive against the defendant's right, was admissible as a muniment of title. Skelly v. Jones, 61 N. Y. App. Div. 173.

When offered in evidence against a stranger, judgments are generally excluded as being res inter alios acta. Trustees of Putnam Free School v. Fisher, 34 Me. 172. But there is apparently an exception in cases where the question adjudicated was that of title as between the parties to the former action, the judgment being, as to that, conclusive upon every one. Barr v. Gratz's Heirs, 4 Wheat. 213; Greenleaf v. Brooklyn, etc., R. R. Co., 132 N. Y. 408. The judgment has, accordingly, the same force as a deed of conveyance executed by the party against whom it was rendered. judgment in ejectment was not, at common law, conclusive as to title even upon the parties to it. Smith v. Sherwood, 4 Conn. 276. But in the principal case a statute removes that peculiarity, and places such a judgment within the class above described. The decision, therefore, in admitting the judgment as a muniment of title, seems

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sound, and in accordance with authority. The present defendant may still show that his claim is paramount to that established by the judgment, or he may attack the validity of the judgment, just as the validity of a deed may be impeached.

EVIDENCE-MURDER - DECLARATIONS OF AN ACQUITTED CO-CONSPIRATOR. - A and B were jointly indicted for murder, but were tried separately, and A was acquitted. On the trial of B, a conspiracy between A and B to commit the murder having been established, declarations by A before the commission of the crime were admitted. Held, that such admission was proper. Musser v. State, 61 N. E. Rep. 1 (Ind.). The general rule in prosecutions for conspiracy is that evidence of the acts or declarations of one of the accused persons is admissible against any other, on the ground of common interest. Clune v. United States, 159 U. S. 590; Card v. State, 109 Ind. 415. But when one of several alleged conspirators has been acquitted of that crime, his acts and declarations are no longer provable against the others, as his acquittal is regarded as disproving his participation in the common agreement. Paul v. State, 12 Tex. App. 346. Since in all cases the admission of the testimony depends upon proof of the common agreement, this is clearly correct in a case where the conspiracy is the subject of the investigation. But where, as in the principal case, the chief inquiry is as to another crime, and the conspiracy is but an incident, the acquittal of one defendant, accused as a principal, does not disprove his connection with the others in the preliminary agreement; and if the conspiracy is established, the evidence, which has an obvious bearing on the main inquiry, should still be competent. Holt v. State, 39 Tex. Cr. Rep. 282, 300. On this ground, therefore, the decision in the principal case is clearly right.

MUNICIPAL CORPORATIONS UNAUTHORIZED CONTRACTS - EMPLOYMENT OF ADVERTISING AGENT. - The city council of Cape May employed a man to represent the city as an advertising agent and bring before the public the claims of the city as a summer resort. Held, that the municipality cannot legally pay his expenses, since the employment of such an agent was unauthorized by its charter. State v. City of Cape May, 49 Atl. Rep. 584 (N. J., Sup. Ct.).

Since the powers of a municipality are limited to those delegated by its charter, their extent is a subject of construction. The established rule is that the corporation possesses only those powers granted in express words, those necessarily implied in or incidental to the express powers, and those essential to the declared objects and purposes of the corporation. Ottawa v. Carey, 108 U. S. 110, 121; Cook County v. McCrea, 93 Ill. 236. The reason for this strict construction is inherent in the nature of such corporations; the power of a majority, even within the limits of the charter, to subject the whole community to taxation and other burdens, against the will of a large minority, is dangerous and requires close restriction. See Spaulding v. Lowell, 40 Mass. 71, 74. On this ground courts have held municipal acts void which granted money for celebrations, and for expenses of committees opposing legislative measures. New London v. Brainard, 22 Conn. 553; Coolidge v. Brookline, 114 Mass. 592. From this point of view, the employment of an agent to advertise a sea-side resort seems clearly outside the ordinary powers of municipal corporations; and since the charter in the principal case contained no special authorization, the decision seems correct.

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PROCEDURE - FEDERAL COURTS REMOVAL OF CAUSES - - Loss OF JURISDICTION. All the parties to an action were citizens of Kentucky except one defendant, a citizen of Ohio. After removal of the entire case by the latter to the federal court on the ground of a separable controversy within the Act of 1888, ch. 866, sec. 2 (25 U. S. Stat. 434), the suit was discontinued as to him. Held, that, the court having no further jurisdiction, the case must be remanded to the state court. Youtsey v. Hoffman, 108 Fed. Rep. 699 (Cir. Ct., Ky.).

A federal court having once taken jurisdiction, will not be ousted by a change in the citizenship of either party or in the ownership of the subject matter. Morgan v. Morgan, 2 Wheat. 290; Glover v. Shepperd, 21 Fed. Rep. 481. So jurisdiction will not be divested by the admission as co-defendant of a citizen of the same state as the plaintiff, nor even by the substitution of such a defendant; nor by the reduction of the amount involved below the statutory limit. Phelps v. Oakes, 117 U. S. 236; Hardenbergh v. Ray, 151 U. S. 112; Hayward v. Nordberg, 85 Fed. Rep. 4. Indeed, the rule is laid down broadly by the most eminent authority that jurisdiction depends upon the circumstances at the beginning, and that having once properly attached, it cannot be divested by subsequent events. Mollan v. Torrance, 9 Wheat. 537. The

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