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The British Empire has lost two great jurists of international fame, Lord Alverstone, until three years ago Chief Justice of England, and who as a member of the Alaska Boundary Commission, gave his decision in favor of the United States, and Sir William Rann Kennedy, Lord Justice of Appeal, one of the founders and Presidents of the International Law Association, and who has three times been the guest in this country of the American Bar Association. Other Judges of eminence who have passed away in England are Sir Thomas Bucknill, formerly a King's Bench Judge; Sir George Farwell, formerly a member of the Court of Appeal. With professional honors and at a ripe old age, the Bar has lost Sir Edward C. Leigh, K. C., and George F. Pollock, of the celebrated family of that name. But alas! for the roll of the younger men; it is a sad and heartrending list which every week comes to us in the columns of the English law journals, the youth of the profession, the men just beginning a professional life so full of hope and promise-dead by the score in the trenches in France and at Gallipoli!

Canada has lost James Maclennan, sometime a Judge of the Supreme Court of the Dominion; John J. Drew, A. E. H. Creswick; E. E. A. Du Vernet, Donald Guthrie, and John T. Lewis, all King's Counsel of Ontario; James Stewart Tupper, of Manitoba; Honore A. Gervais, a Justice of the Court of Appeal; Augustus C. Papineau; Simeon Pagnuelo, Romuald Delafausse, K. C., and M. E. Charpenter, the Dean of the Bar of Montreal, of the Province of Quebec. Other Judges of the Empire who have died during 1915, include Lord Justice Moriarty, of the highest Irish Court; Sir Arthur Collins, of Madras; Sir Ernest A. Northcote, of Trinidad; Sir Charles P. Layard, of Ceylon, each a former Chief Justice of these British possessions.

France has lost Emile Forechon, President of the Court of Appeal at Paris, and a former Senator of France, and Edmund Seligman, an avocat of the first rank as well as an author of distinction, and who was counsel for both the brothers Wright and M. Marconi in their patent litigation in Europe. And there has died in 1915, that great international lawyer and statesman whom genius made Russia gain by diplomacy from Japan more than she had lost by war-Count Sergius Witte.

COMPELLING PUBLIC SERVICE CORPORATIONS TO SERVE THE PUBLIC. In a recent Mississippi case27a it was held that where a natural person purchased the assets and franchise of an electric lighting plant, he thereby assumed the duty to operate it for the benefit of

27a State v. Benson, 67 South 214.

the public, and could be compelled by mandamus to do so. The Court said in part:

"The petition avers that the Capital Light & Power Company is a Mississippi corporation, and that it secured a charter from the State giving it the power to conduct the business of furnishing to the public electric current; that it procured from the City of Jackson a license or franchise to set its poles and string its wires upon the streets and alleys of the city for the purpose of serving the public; that in the exercise of this license or franchise it did use the streets and alleys and did contract with a large number of the inhabitants of the city to furnish electric current; that for several years the corporation engaged in the active use of its franchise by serving the general public with electric current; that it was eventually adjudicated a bankrupt and its assets and franchises were sold by order of the court and were purchased by defendant; that, in pursuance of a combination and conspiracy to bring about a monopoly and destroy competition, the defendant shut down the plant and refused to perform the duty of the corporation to the public.

"Will the courts, under these circumstances, refuse to intervene and compel the successor of the corporation to perform the duties of the corporation? This, we believe, was the precise question presented to the Circuit Court. "Mr. Benson bought the franchise of the corporation to do business in Jackson. The corporation took possession of and enjoyed this franchise for several years. The corporation undertook to and did perform the duties of a public service corporation in exchange for the license or franchise to use the property of the city for this purpose? He cannot hold on to the benefits of his purchase without incurring the obligation to perform the duties of the trust. This seems to be made certain when it appears that he refuses to assume the burdens, if burdens there be, because he has entered into a compact with others to do so for the purpose of creating a monopoly of destroying competition.

"There seems to be no conflict in the authorities that courts possess in proper cases the power to compel trustees of a public trust to perform the duties of such a trust. Leaving out of view section 910, Code of 1906, it seems clear that Mr. Benson assumed the burdens of an involuntary trustee when he took over the franchise of the corporation, and is declining to use the same for the purpose of creating a monopoly. The apparent conflict in the decisions of the courts upon the power of the courts to compel the performance of legal duties of trustees grows out of the peculiar state of facts in the several cases. In some cases the courts have refused to issue the writ of mandamus because it appeared that the corporation, or trustee, was unable to perform. In other cases the writ was denied because, in the opinion of the courts, to compel the performance of the alleged duty would work a great hardship without a compensating benefit. There is and can be no conflict of judgment that, in proper cases, the courts will and do exercise the power to compel the performance of legal duties. The petition in this case declares a state of facts which justifies the exercise of this extraordinary power."

REGULATING THE HOURS OF WORK OF WOMEN.-The Supreme Court of the United States has decided that forbidding the employment of women in certain specified establishments for more than eight hours in one day of forty-eight hours in one week, as is done by a California statute passed in 1911, does not, as applied to women 7

VOL. L.

employed in hotels, violate the Fourteenth Amendment of the Federal Constitution as infringing freedom to contract. It was further held that including hotels among the specified establishments in which, under said statute of California, women must not be employed more than eight hours in one day or forty-eight hours in one week does not render the statute invalid as discriminatory, although the classification may, to some extent, be based upon the nature of the employer's business rather than the character of the employee's work. It was also decided that exempting women employed in harvesting, curing, canning or drying any variety of perishable fruit or vegetable from the operation of such statute does not render it unreasonably discriminatory. It was laid down that the State may forbid women employed in hotels from working more than eight hours in one day or forty-eight hours in one week without imposing a similar restriction upon those employed in boarding houses, lodging houses, etc., or upon such classes of women employees as stenographers, clerks and assistants employed by the professional classes and domestic servants. And in another case the same Court ruled that the statute of 1913,28 amending the statute of 1911 above eferred to, does not interfere with the liberty of contract guaranteed by the Fourteenth Amendment of the Federal Constitution by forbidding graduate women pharmacists employed in hospitals, women student nurses in a hospital training school and women employed in hospitals, such as matrons, seamstresses, bookkeepers, office assistants and persons engaged in household work, to work for more than eight hours in one day or forty-eight hours in one week. It was further held that exempting graduate nurses in hospitals from the operation of the act of 1913 does not render the statute invalid as unreasonably discriminatory.29

SLANDER IN SPEECH TO JURY.-In Kentucky, in the course of a trial, one of the counsel commented on the action of the jury in a former case in the following words:

"In this case the only question is whether a corporation can get justice in Pike County. No longer than yesterday I heard a case tried in this court of Carl Massy against the Allegheny Coke Company and John Fuller, in which the jury turned in a verdict under their oaths against the Allegheny Coke Company and found in favor of John Fuller, which they knew to be wrong. That verdict was a travesty on justice and a shame and a disgrace to the community."

He was sued for slander by one of the jurors but the Court of Appeals held that the lawyer was not liable. It was laid down that the language was not privileged because the comments in question

28 Miller v. Wilson, 35 S. C. Rep. 29 Bosley v. McLaughlin, Id. 345. 342.

were not pertinent to the case being tried at the time it was uttered. And it was conceded that if the language had been written and the action had been for libel the plaintiff would have been entitled to damages. But the Court ruled that the words used were not actionable per se because they did not touch the plaintiff in his business, or profession, or office, and that the language could not be rendered actionable per se as imputing to the jury the commission of a crime through a breach of the following provision of the Kentucky statutes: "If a juror in any case shall take or agree to take anything directly or indirectly, to give or refrain from giving his verdict, or shall, from favoritism or corrupt partiality, give or refrain from giving his verdict, and shall be thereof convicted, such juror shall not thereafter serve on any jury, and shall be fined one hundred dollars, and a sum equal to ten times the amount received or agreed to be received." The opinion says:

"If, therefore, the words spoken had charged this jury with having taken or agreed to take anything directly or indirectly to give a verdict, or that its verdict was given from corrupt favoritism or corrupt partiality, then they would be actionable as imputing moral turpitude involving an offense for which the members of the jury might be indicted and punished. But we do not think the words spoken can be fairly construed into a charge that the jury was guilty of the offense described in this statute. The petition avers that the appellee meant to, and did, charge the plaintiff, as one of the jury, with the crime of perjury, and it is argued that the meaning of the words spoken was that the plaintiff and the other members of the jury had committed the crime of perjury by violating the oath they had taken to try the issues joined and a true verdict rendered by returning a verdict that they knew to be wrong. But it does not aver that appellee, by the use of the words spoken, intended to charge that the jury was influenced by corrupt favoritism or by corrupt partiality to give the verdict, although it would seem to be a more reasonable inference from the words spoken that the speaker had in mind to charge the jury with corrupt favoritism or partiality rather than with the commission of the crime of perjury.

"But, however this may be, the meaning of the words spoken cannot, of course, be enlarged by innuendo (Moore v. Johnson, 147 Ky., 584, 144 S. W., 765). The words are to be taken in their usual and ordinary acceptation, and so treating them, we do not think they can be construed as either charging perjury or corrupt favoritism or corrupt partiality. If the jury returned a verdict they knew to be wrong, they, of course, committed an offense against the administration of justice and did a wrong to the Allegheny Coke Company. But this wrong they might have done without being guilty of perjury or being influenced by corrupt favoritism or partiality for Massy. And so we think the words spoken are not actionable per se.

"It is, however, insisted that, although the words may not be actionable per se, they are actionable because spoken of the appellant in respect to an office, and the attempt, therefore, is made to bring the words within the class that makes it actionable to impute unfitness to perform the duties of an office or employment. But we think the position of a juror is not an office or employment within the meaning of these words as employed in the quotations from Williams v. Riddle (145 Ky., 459). The words 'employment, profession or trade' means some business, employment, profession or trade in which the complaining party is en

gaged and in the conduct of which he has sustained some injury on account of the slanderous words; and the word 'office' means some public position with honors, emoluments or profits the enjoyment of which may be affected by the words, and a juror does not hold such an office as this. His duties are transitory and subject to be terminated at any time. He is merely selected out of the body of the people for the purpose of discharging, at the will of the court, responsible and honorable public duties that the State has a right to call upon its citizens to perform. He is for the time being an officer of the court, but holds no office or employment that could be affected in a pecuniary way by slanderous words (Townshend on Slander and Libel, pp. 287, 311; Newell on Slander and Libel, p. 168)."30

PROFESSIONAL ETHICS-ANSWERS OF THE NEW YORK COMMITTEE. DIVORCE ACTION-COLLUSION.-A husband, five years ago, became infatuated with another woman and, since that time, has made life with him so intolerable that his wife has accepted his frequent invitations to leave and has left him. The wife now resides in New York County, while the husband continues to reside in the county where both formerly lived as man and wife. Before the final rupture, and as part of the causes leading to it, the husband repeatedly told the wife that he had been unfaithful, that he intended to continue to be so, and that evidence existed which would entitle her to an absolute divorce. He gave her no details by which she could, unaided by him, obtain for herself such evidence. Certain real property purchased by the husband stands in the name of the wife. In certain other real property of the husband she has an inchoate right of dower. She desires a divorce but has no means with which to watch for and obtain evidence of probable and threatened future delinquencies of the husband. He has offered, and repeats his offer through his attorney, to furnish the names of witnesses to offences which occurred before the rupture, on condition that terms satisfactory to him in regard to alimony and the disposition of the real property above mentioned are agreed upon and that the action be brought in the county of the wife's present residence. Is it proper for her attorney to bring an action for absolute divorce, upon evidence so obtained, the attorney, by the way, having been retained a day or two before the rupture? Would such an action be collusive? The question is asked by the attorney for the wife and he does not desire to participate in a collusive action. Answer.-The propriety of the suggested agreement is not to be determined solely by the test of collusion. The acts of which evidence is to be secured are stated to have been already committed, and this circumstance would seem to avoid the charge of collusion in its technical sense (Dodge v. Dodge, 98 App. Div., 85, 88); however, the attorney in a divorce case should regard with disfavor any offer by the adverse party to stipulate to furnish witnesses to the past offense charged, in consideration of stipulations as to alimony, release of dower, etc. (See Train v. Davidson, 20 App. Div. 577.) A majority of the Committee is of the opinion that, nevertheless, in the case submitted, if the attorney for the wife be satisfied of her good faith, it would not be improper for the attorney to bring the suit in the manner and pursuant to the arrangement stated, provided that the whole agreement be in writing and be expressly made subject to the approval of the Court, and a full disclosure thereof and of all the facts relating thereto is made to the Court at the trial (see Schesinger v. Kling, 112 App. Div.

30 Smallwood v. York, 173 S. W. 380.

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