such a case, the naval commander may destroy them with artillery, but other buildings must be spared so far as possible. This is not in reality, then, a bombardment of the town, though incidental damage may, and probably will, be inflicted.

There remains one genuine exception. If the local authorities, after formal demand made upon them, fail to deliver provisions or supplies required for the immediate necessities of a naval force, bombardment of the town is allowed even though it be undefended in every sense of the word. This does not authorize the holding of a town to ransom, under penalty of bombardment, whether the ransom is demanded in the form of money or supplies; it merely affords a means by which a naval commander can compel the delivery of food, fuel, etc., needed for the immediate consumption of the force under his control.

Enough, probably, has been said to show that it will rarely be difficult to determine whether the bombardment of any particular place is legal or otherwise, provided the facts of the case are known. There are but few doubtful points of law. Nevertheless, cases admitting of a reasonable difference of opinion may still occasionally arise. For example, when coast batteries guard the approaches to a port otherwise immune from bombardment, may fire be directed on the city? If a purely naval attack is in progress, the question is not likely to arise, for the fleet will rarely be able to get within range of the town until after the forts are reduced, when of course the place would become an undefended one. A land force, however, might well get within range of the city while the coast works still held out. The matter must be regarded as still unsettled. In any given case the decision would no doubt depend upon the distance between the coast batteries and the town, but just where the dividing line should be put it is hard to say. The extreme cases are reasonably clear. It is hardly conceivable, for example, that Washington should be regarded as liable to bombardment merely because there are permanently emplaced batteries fifteen miles down the Potomac, to cover the approach by water. Washington might of course be bombarded under present conditions, but it would be because of the troops quartered at Washington Barracks, within the city, and the marines stationed near the navy yard, and not on account of the river forts. As the distance between forts and city is lessened, however, the question becomes a very nice one.

But such disputed points are beyond the scope of the present paper. I have endeavored here only to set out the clear and unquestioned rules of the laws of war, so far as they concern the right to bombard. They do not leave a belligerent free to inflict any injury at pleasure, though we now and then hear assertions very similar to this from those who, realizing that war is always cruelty, assume that therefore cruelty is war. Nor are those any closer to the truth who stigmatize as illegal every bombardment-at least by the belligerent with whom they are not in sympathy-which brings wounds or death to innocent noncombatants.2

2 Thomas Marshall Spaulding, Washington, D. C.

THE PROMISE OF A PHYSICIAN AND ITS BREACH.-The Supreme Court of Mississippi rules that it is no excuse for non-performance of a contract by a physician to attend one in expected confinement, that to have done so would be to make him "leave a patient who is in a precarious condition to attend one that he had previously contracted to attend." Said the Court:

"The ground upon which it is claimed a peremptory instruction should have been granted to appellant is that it is not incumbent upon 'a doctor to leave a patient who is in a precarious condition to attend one that he had previously contracted to attend.' This proposition, differently expressed, amounts simply to this: If a person assumes obligations to different parties, the performance of which may become incompatible with each other, both parties being entitled in equal right, is it an excuse for a default to one party that both obligations could not be performed, and that the person bound chose to perform his obligation to the other? In Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588, this question was answered in the negative. Appellant's contract in this respect was without qualification, and the rule is that 'as a man consents to bind himself so shall he be bound.' "10

THE HEART AS DEMONSTRATIVE EVIDENCE. In a recent Maine case, in an action on an accident insurance policy, the company offered the heart of the insured as evidence as to whether there was a rupture of the heart before death or a cut after death. The Supreme Court rules that its exclusion was not an abuse of the trial court's discretion, in view of the question whether the rupture or cut was then in the same condition as it was at the first autopsy, and the further question whether nonexperts could judge, a year and a half after insured's death, whether the wound was caused by a rupture before death or by a cut after death.

"The defendant contends that as the prime question at the trial was whether there was a rupture of the heart before death, or a cut upon the heart after death, the heart itself would be the best evidence of the truth. It would be good evidence it must be conceded, if the heart remained in the same condition as it was at death, and would be properly admissible, if the jurors, who were nonexperts, were competent to judge of a question, the answer to which must depend to a considerable degree upon expert knowledge.

Whether demonstrative evidence of this character should be admitted depends, within well-defined limits, upon the discretion of the presiding justice. And, unless the discretion is abused, exceptions do not lie. Ordinarily a preliminary question is whether the thing offered is in substantially the same condition it was at the time in question. The determination of this fact is for the justice, and to his finding exceptions do not lie. This is so well settled that the citation of authorities is unnecessary. In this case the justice in excluding the heart gave no reason. We must therefore inquire whether there was any good reason. We think there was. It is complained that he excluded the heart without examining it himself. But he had listened to reams of testimony about it. It is evident that there was a bona fide dispute as to whether the heart was in

the same condition as to the rupture or cut at the time of the trial as it was at the first autopsy. If the justice believed the witnesses for the plaintiff, he was authorized to find that the condition was changed. And we cannot revise his finding on exceptions. Besides, the length of time that had elapsed since the body was exhumed and the susceptibility of matter of that kind to decay and degeneration may have led him in the exercise of a wise discretion to withhold it from the jury, even though there was testimony that it had been scientifically preserved and had not degenerated. Again, it admits of serious doubt whether nonexperts are in a condition to judge a year and a half after death whether a slit in a human heart was caused by a rupture before death or by a cutting after death. If not, then such demonstrative evidence is not proper to be submitted to a jury of nonexperts. We suggest this question. We have no occasion now to decide it."27

FORCIBLE REMOVAL OF SERVANT FROM PREMISES.-In a recent case in Michigan a servant having called the master a liar, was at once discharged by law and instantly ejected from the premises. She brought suit for damages. On appeal to the Supreme Court the judgment in her favor is affirmed, that tribunal holding that the trial court had properly submitted to the jury the question whether the plaintiff had been granted a reasonable time for removal of herself and her belongings. It is laid down that as plaintiff was a domestic servant in the defendant's employ, being a member of the household and not a trespasser, she was entitled, when discharged, to a reasonable time and opportunity to prepare for removal; and the fact that it was evening when the discharge occurred would be a circumstance to be considered upon the question of reasonableness of time; and the defendant was not justified in using force to eject plaintiff until she had been given notice and a reasonable time in which to leave peacefully."

61

59

CITY REQUIRING FIRE DRILLS IN FACTORIES-In City of Chicago v. Pettibone, the general proposition was laid down by the Supreme Court of Illinois that "the authority of a city to pass any ordinance must be found in some act of the Legislature, and any reasonable doubt as to the existence of such authority must be resolved against the right of the municipality to its exercise." Applying this principle, it was held that the City of Chicago was not authorized under any existing statute of that State to pass an ordinance requiring an employer to train his employes to engage in fire drills as a means of avoiding danger from fire, or equip his building with a fire alarm system for the purposes of such drills.

27 Thompson v. Ins. Co., 95 A. 229. 59 Gungrech v. Anderson, 155 N. W. 379.

61 267 Ill. 573.

The Supreme Court of Illinois did not hold that the ordering of fire drills by the employes of large manufacturing buildings is beyond the police power of the State, but only that none of the statutory provisions on the point gave the city authority to do so.

A SUNDAY NEWSPAPER A "WORK OF NECESSITY."-The Supreme Court of Missouri has settled a controversy which has afflicted the lower courts of the State for some time, even the two intermediate appellate courts having taken different views on the question. The Supreme Court lays it down that publishing a Sunday newspaper is a "work of necessity" within the Sunday law of the State and that it is immaterial that the paper contains advertisements and that the labor used in making up, printing and delivering the paper is increased on account of the advertisements, and hence the recovery of a balance due for advertising cannot be defeated on the ground that the papers containing the advertisements were printed, mailed and delivered on Sundays. The following is from the opinion:

"While we have read both opinions of the Court of Appeals with much interest and great profit, yet we base our decision of this case upon the broad ground that the work and labor complained of by the defendant does no violence to said section 4801, which reads as follows:

"Every person who shall either labor himself, or compel or permit his apprentice or servant, or any other person under his charge or control, to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars.'

"By reading this statute it will be seen that household work of necessity and other works of necessity or charity are expressly excepted from its operation. That being true, then the only question presented for determination is whether or not the publication of the great daily papers of the country on Sunday is a work of necessity. In order to decide that question correctly we should take a brief view of the service the great daily papers of the cities, which constitute a large part of what we call the press of the country, are doing for the good of humanity. The press disseminates practically all of the public news of the world, and a large part of that which is personal; it imparts intelligence regarding the public health, public morals and public safety, and materially aids in the preservation of the two former and in the defense of the latter; it is the mouthpiece of the statesman and lawmaker, and proclaims to the world how government affairs are administered; it points to the capable and honest official usually with just commendation, and singles out the inefficient and those derelict in duty, and as a rule is at the head of those collecting and disbursing public charity.

"Moreover, the press is a great educator in literature, art and science, and points out their beneficent influence upon the home, morality and religion: it enables the poor who earn their bread by the sweat of their faces to procure employment, to familiarize themselves with the best and cheapest necessities of life and the most reliable places where they may be procured; it imparts to the business man price currents which largely

control the commerce of the world; it informs the financier the rates of items and exchange around the world which keep finances of all nations within conservative bounds, and it makes known to employers of labor the condition of the industrial world, etc., and so on to the end of all good and useful vocations of life. The great service the press is rendering to humanity is performed on Sunday as well as upon Monday, or upon any other day of the week, and its beneficence is more potent on the former than on the latter, for the simple reason that the toiling masses have more time to read the papers on Sunday than upon any other day of the week, and therefore acquire greater knowledge and information from them regarding the matters stated on that day than upon any other day. "Upon this state of affairs, where is the court or jury in Christendom which would convict the publishers of the Post-Dispatch if indicted for publishing that paper on Sunday? This is the test. Of course, they do not exist, and that is because the former would take judicial notice of the fact that such publications are matters of public necessity, and the latter would not stultify itself by finding a verdict of guilty against the publishers in the face of overwhelming evidence which would be introduced in such a case. The fact that the paper contained the advertisement, and that a part of the labor which was used in making it up and printing and delivering it was increased on that account, in no manner altered the case, for the reason that the paper with its advertisements constituted the necessity, and such a paper without them would be practically worthless to thousands in every city.

"In the progress of time and the uplift of man things which used to be useless or luxurious have become prime necessities. For instance, the railroads, the street cars, the telegraph and the telephone. All of these have been declared public necessities, and this court, in the case of State v. Railroad (239 Mo. 196, 143 S. W. 785), held that railroads could be compelled, under a legislative enactment, to operate trains on Sunday, and in a number of cases that telephones are public necessities. The press is a greater public necessity than all of them. In my opinion it ranks as one of the four great institutions of the country, namely, the home, the church, the public school and the press. We have so recently been over the question, work of necessity, and collected and cited the authorities through the country bearing upon it, in the case of State v. Railroad (supra), no good or useful purpose would be served by a further discussion of it here."48

48 Pulitzer Pub. Co. v. McNichols, 181 S. W. 1.