ery would be to accomplish the undue influencing of the official before the law under which he was to act had taken effect. Thus, if a corporation desired to influence the action of Secretary Cortelyou in his new position as secretary of commerce, all that would have been necessary to make such proceeding lawful would be to have approached him before the President signed the act creating the department of commerce. The obvious absurdity of such a result is one of the great weaknesses of the court's opinion.

CARRIERS. (CARRIERS-FREE TRANSPORTATION— BREACH OF CONTRACT-WIFE'S PASSAGE MONEY - RECOVERY BY HUSBAND INCONVENIENCEDAMAGES.)

NEW YORK SUPREME Court. In Miller v. Baltimore & Ohio Railroad Co., 85 New York Supplement 883, it appeared that plaintiff had made a special contract with the company to transport him and his wife in a certain express train to the city of New York from Cumberland, Maryland.

On reaching Philadelphia the company refused to continue the trip and told plaintiff he would have to wait over three or four hours for another distinct train. Instead, he took passage over another railroad and sued for a breach of the contract of carriage and for damages for inconvenience, annoyance and delay. The court first holds that plaintiff could recover money paid for his wife's fare from Philadelphia onward, though she was not a party to the action, and her claim was not assigned to him. This is on account of his obligation to support his wife and pay her expenses, including traveling expenses, especially when she is with him. As to the right to recover for mere inconvenience and annoyance, the court holds that it does not exist in the absence of proof of actual physical or mental injury. Miller v. King, 21 App. Div. 192, 47 New York Supplement 534, and Hamilton v. Third Avenue Railroad Co., 53 N. Y. 25, are distinguished.

CASH REGISTER. (MEMORANDA AS INDEPENDENT EVIDENCE.)

NEW YORK SUPREME COURT.

In Cullinan v. Moncrief, 85 New York Supplement 745, the State excise commissioner sought to recover the penalty of a bond given by defendants, who were druggists, to obtain a certificate to traffic in liquors. The evidence was that a special agent of the excise department had purchased from one of the defendants a halfpint of brandy without a physician's prescription, and paid him 75 cents therefor, which, with the price of another article purchased at the same time, amounted to 96 cents. To rebut this evidence defendants offered a slip from their cash register showing that on that date no sale for 96 cents had been made. The defendant from whom the brandy was said to have been purchased, testified that he had a cash system by which he could tell whether he was in the store or not. His partner explained the working of the cash register. The court holds that the slip was inadmissible, there being a total failure of the evidence to establish the correctness of the items thereon, and says it is also of the opinion that the slip should not have been received in evidence in any event, as it was not an account book, but a memorandum made by the party in his own interest, which was not offered in aid of the witness' recollection.

S-DENUNCIATION OF COURT-TERMINATION OF CAUSE-LEGISLATIVE LIMITATION OF AUTHORITY-FREEDOM OF SPEECH.)

CONTEMPT. (WHAT CONSTITUTES—

MISSOURI SUPREME Court.

In State v. Shepherd, 76 Southwestern 79, the defendant was informed against for contempt of the Supreme Court itself in printing an article commenting on the termination of a personal injury case begun against the Missouri Pacific Railroad and brought by appeal before that court. After referring to the charges of bribery in the Legislature and reflecting on the good faith of the governor and attorney-general, the article proceeded: "And now, as the capsheaf of all

this corruption in high places, the Supreme Court has at the whipcrack of the Missouri Pacific Railroad sold its soul to the corporations, and allowed Rube Oglesby to drag his wrecked frame through this life without even the pitiful remuneration of a few paltry dollars. . . . This very tribunal, after reading the evidence and hearing the arguments of the attorneys, rendered a decision sustaining the judgment of the lower court, which decision was concurred in by six of the seven members of the court. This is, usually the end of such cases. . . . But not so in the Oglesby case. Three times was this case at the request of the railway attorneys opened for rehearing, and three times was the judgment of the lower court sustained. But during this time, which extended over a period of several years, the legal department of this great corporation was not the only department which was busy in circumventing the defeat of the Oglesby case. The political department was very, very busy. Each election has seen the hoisting of a railway attorney to the supreme bench, and when that body was to the satisfaction of the Missouri Pacific, the onslaught to kill the Oglesby case began. A motion for a rehearing was granted, and at the hearing of the case it was reversed . . . and was sent back for retrial. . . . Again the jury rendered judgment in favor of Oglesby . . . and again the case was appealed to the Supreme Court. An election was coming on and the railroad needed yet another man to beat the Oglesby case. The Democratic nominating convention was kind and furnished him in the person of Fox.

. . The railroad allowed the case to come up for final hearing, and Monday the decision was handed down, reversed and not remanded for retrial. The victory of the railroad has been complete, and the corruption of the Supreme Court has been thorough." The defendant was fined $500, which was promptly furnished by his fellow citizens. The court filed a lengthy opinion in which the whole law of contempts is elaborately discussed. Among other important hold

ings is that where a contempt consists of scandalizing the court itself, it need not relate to a pending suit; also that the attempt of the Legislature to define what contempts the court should punish, and limiting its powers thereto was unconstitutional as an interference with the judicial department of the government; and that the constitutional guaranty of freedom of speech was no protection to the defendant. The latter point is discussed at great length. Commenting on the article itself the court says: "In short the article attacks the honesty, integrity, and purity of every branch of the State Government, and of the several officers, and then attacks the Democratic nominating convention of 1902." It would seem from this that defendant was guilty not only of contempt, but of a sort of sacrilege. The court refers to the rule of the civil law embodied in the advice of Maecenas to the Emperor Augustus, when the latter desired to punish a historian who had passed some stinging jests on him, that the best policy was to let such things pass and be forgotten. Cæsar also said that to retaliate was only to contend with impudence and put oneself on the same level, and the Theodosian Code also declared that slanderers of majesty should be unpunished, for, if this proceeded from levity, it was to be despised; if from madness, it was to be pitied; and if from malice, it was to be forgiven.

CONTRACTS. (NEGOTIATION BY TELEPHONE-LEX Loci.)

CALIFORNIA SUPREME COURT.

In Bank of Yolo v. Sperry Flour Co., 74 Pacific Reporter 855, the Supreme Court of California holds that a contract made by telephone between parties in different counties is to be regarded as made in that county in which the proposition of the one is accepted by the other. It says: "A contract is supposed to be made at some place, and the place where it becomes complete is the place where it is made. If a contract is made by exchange of letters or telegrams. it is held to have been made at the place

where the letter is mailed or telegram filed containing an unconditional acceptance by one party of the offer of the other. If the communications are oral, either with or without the telephone, between parties on opposite sides of a county line, the same principle would seem to require that the contract should be deemed to have been made in the county where the offer of one is accepted by the other."

FERRIES. (INTERSTATE CHARACTER—AMOUNT OF

TOLL-LOCAL REGULATION.)

WEST VIRGINIA SUPREME COURT OF APPEALS.

In State v. Faudre, 46 Southeastern Reporter 269, defendant was indicted for charging ten cents for ferriage from the Ohio side of the Ohio river to the West Virginia side, contrary to the order of a West Viginia. county court, fixing five cents as the charge. The defendant's ferry was operated under a franchise conferred by the Virginia Legislature in 1796 and reenacted in 1819. A city ordinance in force on the Ohio side authorized the charge made. In holding that no offense had been committed against the State of West Virginia, the court holds that the point of departure is the home of a ferry, citing Sistersville Ferry Company v. Russell, 52 W. Va. 356, 43 Southeastern Reporter 107, and as the ferry had a foothold on the Ohio side, it was a lawful ferry. It was engaged in interstate commerce, and its landing could not be prohibited by West Virginia. These principles are held to apply, though the jurisCliction of West Virginia extends to the lowwater mark on the Ohio side. A large number of authorities are cited and discussed as to the extent of this jurisdiction. The opinion, however, relies on the ordinance of Congress for the Government of the Northwest Territory, declaring the Ohio river a common highway, which shall be forever free, etc., and the Virginia Act of Dec. 30. 1788 (12 Hen. St. 780), ratifying the same; and also the Virginia Act providing for the formation of Kentucky, in which it is declared that the jurisdiction of Virginia and

of Kentucky shall be concurrent on the river, with the States on the opposite shores. In the concluding portion of the opinion, the case is said to be settled by Conway v. Taylor, 1 Black 603, U. S. 17 L. Ed. 191, in which the right of Ohio to establish a ferry to the Kentucky shore was upheld, but the court believes that Ohio could grant a ferry right valid for carriage in both directions. From this extension of the doctrine of Conway v. Taylor, Justice Poffenbarger dissents. though concurring in the conclusion reached, while Justice Dent believes that the case turns on the fact that Ohio has jurisdiction above the low-water mark.

HYPNOTISM. (SEDUCTION-SUFFICIENCY OF EVIDENCE-CREDIBILITY OF STORY.)

NEW YORK SUPREME COURT.

In Austin v. Barker, 85 New York Supplement 465, the defendant appealed from at judgment rendered against him for the seduction of the plaintiff's daughter, who had given birth to a child in August, 1901. She testified that upon various dates between October 30, 1900, and Jan. 1, 1901, the defendant had had improper relations with her, on the first occasion, forcibly placing her upon a couch and accomplishing his purpose. The defendant denied his guilt, and so far, the court says, the evidence might have sustained the verdict; but after the daughter had been extensively examined on both sides, and had left the stand, she was recalled on the urgent request of defendant's counsel, predicated on new information, and then testified that she was entirely unconscious of defendant's various acts of improper relation with her, and did not know that they had occurred at all until several weeks after the birth of her child; that on the first occasion she understood what was taking place only up to the time she was placed on the couch; that in October, 1901, plaintiff's attorney visited her, and being then placed in a hypnotic stage she recalled the acts of intercourse, the recollection of which she had since retained. She testified, and plaintiff's theory was, that defendant had hypno

tized her. No expert evidence as to the possibilities or effects of hypnotism was offered, and in view of this the court holds the evidence insufficient to sustain the recovery.

INSURANCE. (CANCELLATION OF POLICY-FRAUD -FEDERAL EQUITY JURISDICTION-REMOVAL OF CAUSES-PENALTY OF EXCLUSION FROM STATE.)

UNITED STATES SUPREME COURT. Cable v. United States Life Insurance Company, 24 Supreme Court Reporter 74, was a suit by the insurance company to cancel a policy on the ground of fraud of the agents of the insured, begun in the United States Circuit Court. The question on the certiorari to the Supreme Court was as to the equity jurisdiction of the court below. In the most interesting portion of the opinion. the court says: "We start with the proposition that, to any action brought upon the policy in a Federal court, the company would have a complete and adequate defense by proving the fraud as alleged in the bill herein. That shows a defense in the same jurisdiction resorted to by the complainant herein. It is answered, however, that the action [on the policy] has not been commenced in the Federal court, but, on the contrary, the administratrix has commenced her action in the State court, and hence the defense, if made in the State court, is not in the same jurisdiction as that in which the bill in this case was filed. But the company may bring its defense within the same jurisdiction by removing the case from the State to the Federal court, which it has the right to do on account of the diversity of citizenship of the parties thereto."

Doyle v. Continental Insurance Company, 94 Northeastern 525, 24 L. ed. 148 is then referred to, in which it was held that a State might revoke the license of a foreign insurance company as a penalty for removing a case to the Federal courts. Whether this case has been shaken by the subsequent cases of Barron v. Burnside, 121 U. S. 186, 199, 30 L. ed. 915, 919, 1 Inters. Com. Rep. 295, 7 Supreme Court Reporter 931; Blake v. MeClung, 172 U. S. 239, 254, 43 L. ed. 432, 437, 19 Supreme Court Reporter 165, and Day

23,

ton Coal & I. Co. v. Barton, 183 U. S. 25, 46 L. ed. 61, 64, 22 Supreme Court Reporter 5, the court says is not material. One thing is clear; the company could have removed the administratrix' case from the State to the Federal court, notwithstanding the State statute requiring its exclusion from the State in case it did so, and whether as a result of such removal the State would have the right, by reason of the statute, to revoke the company's license, is not a question which it is necessary to determine. The embarrassment attaching to the company on account of the removal is one of its own creation. As a condition upon which it was admitted to do business in the State it voluntarily signed an application in which it promised to accept a license according to the State law and agreed that the license should terminate in case it removed an action to the Federal court. If the condition be illegal, and no ground for revocation of the license, any subsequent litigation which the company may have with the State officials is still a matter caused by its own action, and does not, in the court's judgment, furnish any ground for Federal jurisdiction.

JUDGMENTS. (ADJUDICATION OF SISTER STATEFULL FAITH AND CREDIT-DENIAL OF RIGHT OF ACTION.)

UNITED STATES SUPREME COURT.

In Anglo-American Provision Co. V. Davis Provision Co., 24 Supreme Court Reporter 92, the provision of the New York Code of Civil Procedure, Sec. 1780, providing that a foreign corporation may sue another foreign corporation only in certain cases, among which is the one where the cause of action arose within the State, though construed by the New York courts as precluding an action on the judgment of a sister State by one foreign corporation against another, is held not to violate Constitution, Art. 4, Sec. I, guaranteeing full faith and credit to such judgments. The court says the precise point has not been decided by it, but that it has been laid down in cases that raise greater difficulties, that this provision of the Constitution establishes a rule of evidence rather

than of jurisdiction. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 291, 32 L. ed. 239, 243, 8 Supreme Court Reporter 1370; Andrews v. Andrews, 188 U. S. 14, 36, 47 L. ed. 366, 371, 23 Supreme Court Reporter 237. The Constitution does not require the State of New York to give jurisdiction to its courts. against its will. If the plaintiff can find a court into which it has a right to come, then the effect of its judgment is fixed by the Constitution. But the Constitution does not require the State to provide such a court. The case of Christmas v. Russell, 5 Wall. 290, 18 L. ed. 245, is distinguished.

LIMITATION OF LIABILITY. (CARRIERS-NEGLIGENCE-PLACE OF CONTRACT-FEDERAL QUESTION-INTERSTATE COMMERCE ACT.)

UNITED STATES SUPREME Court.

In Pennsylvania Railroad Co. v. Hughes, 24 Supreme Court Reporter 132, it is held that the action of the State court in applying the lex loci contractus to a controversy as to the right of a common carrier to limit its liability for negligence to an agreed valuation, does not present a Federal question which will sustain the jurisdiction of the United States Supreme Court, the rule announced in Hart v. Pennsylvania Railroad Co., 112 United States 331, 28 L. ed. 771, 5 Supreme Court Reporter 151, in which such a contract was upheld, not being one of Federal law wherein the decision of the highest Federal tribunal is of conclusive authority. The refusal of a State court to uphold such a contract is also held not to contravene any of the provisions of the Interstate Commerce Act of Feb. 4, 1887 (24 Stat. 379, c. 104, U. S. Comp. Stat. 1901, p. 3154), Missouri, K. & T. R. Co. v. Haber, 169 United States 614, 42 L. ed. 878, 18 Supreme Court Reporter 488; Smith v. Alabama, 124 United States 465, 31 L. ed. 508, I Interstate Commerce Reports 804, 8 Supreme Court Reporter 564; Cleveland, C. C. & St. Louis R. Co. v. Illinois, 177 United States 514, 44 L. ed. 868, 20 Supreme Court Reporter 722 are cited on this branch of the case, and Chicago, M. & St. R. Co. v. Solan, 169 United

States 133, 42 L. ed. 688, 18 Supreme Court Reporter 289, is said to be virtually decisive of it.

MINOR CHILD. (PERSONAL INJURIES BY PARENT -RIGHT TO DAMAGES.)

TENNESSEE SUPREME COURT.

McKelvey v. McKelvey, 77 Southwestern Reporter 664, was an action by a minor child against her father and step-mother to recover damages for cruel and inhuman treatment, alleged to have been inflicted by the latter. The case was dismissed on demurrer, and in sustaining this ruling the court declares that the common law right of control vested in a parent over his minor child, involving the subordinate right of chastisement, results in giving the child no civil remedy against the father for personal injuries inflicted. This conclusion is reached in opposition to the statement of Judge Cooley in his work on torts (page 171) that in principle there seems to be no reason why such a right of action should not be sustained. Howlett v. George, Ex'r, 68 Miss. 703; 9 Southern Reporter 885; 13 L. R. A. 682, is said to be the only case in which the particular question has been discussed, the ruling being hostile to the maintenance of the action. The fact that the cruel treatment was inflicted by the step-mother is immaterial in view of the joint liability of the husband for the wife's tort. Abbott v. Abbott, 67 Maine 304, 24 Am. Rep. 27, and Phillips v. Barnett, First Q. B. D. 436, relative to the right of a wife to recover for personal injuries inflicted by the husband, are cited as furnishing some analogy to the ruling made.

ORDINANCE. (POLICE REGULATION-CIRCULATION OF DODGERS-VALIDITY.

NEBRASKA SUPREME COurt. In Anderson v. State, 96 Northwestern. Reporter 149, the validity of the city ordinance making it unlawful to circulate or distribute dodgers, handbills, etc., on the public streets, was challenged, the contention being that it violated Constitution Article 1,