by the defendant for judgment, the court held that there was evidence on which the jury might reasonably come to the conclusion that the function of the prospectus was not exhausted upon the allotment of the shares, and that there had been one continuous fraud, commencing with the prospectus and culminating in the publication of the telegram, practiced by the defendants upon the plaintiff with the object of inducing him to purchase shares in the company in the market, and that, the plaintiff having suffered damage in consequence of having been thereby induced to purchase shares in the company in the market, was entitled to judgment

CONFLICT OF LAWS: EXTRA-TERRITORIAL FORCE OF AN AGREEMENT TO MAKE A WILL.-The decision of the Supreme Judicial Court of Massachusetts in the case of Emery v. Burbank,1 is to the effect that where a person makes, in another State, an oral agreement to make a will in favor of another person, in consideration of such other person supporting her during the remainder of her life, such agreement, although it may be valid in the State where it is made, cannot be enforced in Massachusetts, if the obligor comes into that State and dies there, in the face of a statute of that State requiring such agreements to be in writing. The court, in its opinion delivered by Mr. Justice Holmes, proceed on the refined distinction which the courts have often raised in other applications of the statute of frauds, between the case where the statute merely operates as a rule of evidence by which a contract is to be proved, and the case where it operates upon the validity of the contract itself, and renders it void unless made in conformity with its requirements; and the court hold that the statute, reading as it does, that "no agreement shall be binding," unless such agreement is in writing, is a statute of the latter class. The court regard the statute as embodying a rule of public policy, designed to prevent fraud and perjury, and they say:

If the policy of Massachusetts makes void an oral contract of this sort made within the State, the same policy forbids that Massachusetts testators should be sued here upon such contract without written evidence, wherever it is made.

The court in another place say: "A contract valid where it is made is valid everywhere, but it may not be enforceable everywhere."

A valid contract that cannot be judicially enforced is certainly a judicial solecism; and it is not surprising that such refinements in the

1 39 N. E. Rep. 1026.

reasoning of judges lead so often to injustice and divorce law and honesty from each other. The true reason of the Massachusetts rule is given in the preceding quotation, that it is contrary to the public policy of that State to allow post mortem devolutions of the title to property to take place on parol evidence of agreements, no matter where made. The statute is a very important and beneficial one, and the rule which it embodies ought to be the rule everywhere.

1

NATIONAL BANKS: CRIMINAL LIABILITY OF OFFICERS UNDER STATE STATUTE FOR RECEIVING DEPOSITS WHILE INSOLVENT.-In State v. Fields, the Supreme Court of Iowa uphold the validity of a statute of that State, making it a felony for any officer of a bank to receive deposits with knowledge that the bank is insolvent, in its application to officers of national, as well as other banks. The reasoning of the court briefly is that the national banking law is silent upon the subject; that there is nothing in the State statute which in any way interferes with the duties of the officers of a national bank under the Federal statute; but that the State statute is a necessary police regulation, enacted to prevent the inhabitants of the State from being cheated and defrauded. The court also draw attention to the fact that the business to which the statute is applicatory is merely a private business. While the decision can not be said to be free from doubt, yet it would seem that it ought to be upheld. Of course, a State statute which should, to any substantial degree, interfere with a national banking institution, in so far as it is an agency of the government of the United States, or which should in any way contravene a provision of the National Banking Act, would be void.

EXPELLING PASSENGERS FROM STREET CARS: MISTAKING HEART DISEASE FOR DRUNKENNESS. In the case of Briggs v. Minneapolis &c. R. Co.,2 a passenger, rightfully on board a street car, was attacked with a fainting spell, produced by disease of the heart, which the driver of the car mistook for drunkenness. The driver thereupon rudely and roughly removed him from the car and placed him on the sidewalk, where he soon after died. There was nothing to show that it was not the heart disease that produced his death, or that the death was in any manner produced or hastened by the wrongful act of the driver. In an action brought to recover damages because of his death, it was held that there

1 62 N. W. Rep. 653.

VOL. XXX.

2 52 Minn. 86; s. c. 15 N. W. Rep. 1019.

20

could be no recovery; though plainly if he had lived he would have had a right of action for the assault. In another case1 the street railway company did not escape so easily. The passenger, after having ridden a considerable distance in an orderly manner, was stricken with apoplexy, and the driver, supposing him to be drunk, put him off the car, and abandoned him in a helpless condition on the street on a raw and drizzling day, and made no effort to procure any attention for him. It was held that the company was liable for the damages resulting to him from such maltreatment.

FORGERY: AGENT SIGNING WITHOUT AUTHORITY.- In State v. Taylor,2 the Supreme Court of Louisiana hold that a man is not guilty of forgery who, without any authority so to do, merely signs the name of another to a written instrument, by himself as the pretended agent or attorney of that other. The reasoning of the court is that forgery consists of an attempt fraudulently to imitate a genuine instrument; but that the person who signs the name of another as his agent but without his authority, and so expresses his character on the instrument, is guilty of another species of falsehood, that of warranting himself to be the agent of the principal for whom he signs when no such agency exists.

CONSTITUTIONAL LAW: INVALIDITY OF A STATE STATUTE IMPOSING A LICENSE TAX UPON THE OWNERS OF PATENT RIghts. In the case of the Commonwealth v. Petty,3 the Court of Appeals of Kentucky hold that a State statute prohibiting the owner of a patent right from selling the right to use the same within any stated territory of the State, without first procuring a license so to do from an officer of the State, and paying a license tax to the State, is in conflict with that provision of the constitution of the United States 4 which confers upon Congress the power to promote the progress of science by securing to inventors the exclusive right to use their discoveries. The court proceed upon the view of Marshall's celebrated dictum that the power to tax is the power to destroy; and they say that if the State can be permitted to impose such a tax at all, it might make the tax so large as to deprive the inventor of the exclusive right to use and enjoy his invention. We con

1 Conolly v. Crescent City R. Co., 41 La. An.; s. c. 6 South Rep. 526. 2 16 South. Rep. 190.

3 29 S. W. Rep. 291.

4 Const. U. S. Art. 1, § 8.

fess to having had an impression, before seeing this case, that the law was the other way. As this case is decided in favor of a right claimed under the constitution of the United States, it cannot go to the Supreme Court of the United States for a final settlement of the question.

.

NEGLIGENCE: DEFENSE THAT THE PERSON INJURED WAS ENGAGED IN VIOLATING THE LAW-NEGLIGENTLY SHOOTING A MAN WHO IS SHOOTING ON SUNDAY IN VIOLATION OF LAW.-There are a good many holdings to the effect that where one person, through negligence, injures another, it will be no defense to an action brought to recover damages for the injury, that the person injured was, at the time when he received the injury, engaged in violating the law in some collateral way, which did not specially relate to the fact of the injury.1 The Supreme Court of Iowa, in the case of Gross v. Miller,2 have recently held, in an opinion by Kinne, J., which cites a good many cases on the subject, that it is no defense to an action for negligent shooting that at the time of the injury plaintiff and defendant were unlawfully engaged in shooting on the Sabbath. There is a well-known difference of opinion among the courts upon the question whether a person who is injured through a defect in a highway, while traveling on Sunday in violation of a public statute, can recover damages from the town for the injury.3

COLLISONS AT SEA: NON-LIABILITY OF SHIP-OWNER FOR NEGLIGENCE OF COMPULSORY PILOT.- The settled doctrine that the owner of a vessel is not liable for damages happening from a collision brought about by the negligence of the pilot, whom the master of the vessel is obliged by law to take on board, and to whom he is obliged by law to commit the course of the vessel, was lately reaffirmed and applied in the English Court of Appeal in The Charlton,5 where the court hold that the relation of master and servant does not, in such a case, subsist between the owner of the vessel and the pilot, so as to render the master liable for damages for a collision while the vessel was in his charge.

1 2 Thomp. Neg., p. 1093.

2 61 N. W. Rep. 385.

32 Thomp. Neg., 1st. ed., p. 1093, et seq.

The Annapolis, 1 Lush. 295; The Maria, 1 W. Rob. 106; General Steam

Nav. Co. v. British &c. Nav. Co., L. R. 3 Exch. 330, and 4 Exch. 238; s. c. 20 L. T. Rep. 581; 3 Mar. Law Cas. (0. s.) 237.

573 L. T. Rep. 49.

ACCIDENT INSurance: DeaTH IN CONSEQUENCE OF VOLUNTARILY ENGAGING IN A FIGHT HELD TO BE DEATH BY "ACCIDENT.". In Lovelace v. Travelers' Protective Association, the Supreme Court of Missouri hold that a clause in a policy of accident insurance providing that "four thousand dollars shall be paid in case of death by accident" is applicable to the case where the insured meets his death in consequence of voluntarily engaging in a fight. The court reason, and support its reasoning by a collection of authority, in its opinion by Barclay, J., that, in determining the meaning of the word "accident," as used in such a contract, the natural and reasonable import of the word, when read in connection with the rest of the contract, should prevail.

POWER OF A CORPORATION TO Execute a Deed After THE EXPIRATION OF ITS CHARTER.- In Bradley v. Reppell,2 the Supreme Court of Missouri, in an opinion written by Mr. Chief Justice Brace, had occasion to consider this question,-holding that, after the expiration of the charter of a corporation, it has no power to make a contract of any kind, unless its corporate powers are continued for that purpose by the legislature, and this although its dissolution has not been judicially declared. Judge Thompson having, in his work on Corporations,3 stated this to be the general doctrine, citing several authorities, but having also stated that the doctrine in Missouri was to the contrary, citing a single case, Chief Justice Brace takes him to task for the statement and points out that it was due to an erroneous dictum in an opinion of the St. Louis Court of Appeals, written by Judge Thompson himself; and that although the Supreme Court of Missouri approved and adopted the opinion, they did not thereby adopt the erroneous dictum. Judge Thompson is glad to have his errors corrected, whether committed in his work as a judge or as an author; and he thanks Chief Justice Brace for the ad captandum argument against Judge Thompson, which he has seen fit to inject into his opinion. If, in what Judge Thompson trusts will be a long judicial career still in store for Chief Justice Brace, the latter should ever fall into an error and find it carefully corrected in the "Notes of Recent Decisions" of the AMERICAN LAW REVIEW, no doubt he will experience equal enjoyment at finding himself publicly set right. But the chief subject of congratulation is that the Supreme Court of Missouri is now right upon this question. "All's well that ends well."

1 28 S. W. Rep. 877.

2 32 S. W. Rep. 645.

3 1 Thomp. Corp., § 530.

4 St. Louis Gas Light Company v. St. Louis, 84 Mo. 202; affirming s. c.

11 Mo. App. 55.