v. Town, 53 Mich. 488. But since the sentence was given for the wrong crime, it is more just to remand the case to the lower court, that it may exercise its discretion in sentencing for manslaughter. Power so to remand after sentence illegal in length, terms, or procedure, is recognized by more modern authority. McCormick v. State, 99 N. W. Rep. 237 (Neb.); see 9 HARV. L. REV. 220. This doctrine seems equally applicable when the sentence is illegal upon another ground. Cf. Simpson v. State, supra.

CRIMINAL LAW UNCLASSIFIED Crimes - ATTEMPT FRAUDULENTLY TO SECURE PARDON. A solicitor was convicted of larceny and disbarred. To secure his pardon and reinstatement he forged and sent to the authorities documents representing that he was innocent. The fraud was discovered before pardon was granted or a judicial inquiry begun. Held, that this attempt to pervert justice is a misdemeanor. Rex v. White, 6 S. R. (N. S. W.) 398.

A conspiracy to pervert justice would be indictable. See i HAWK. P. C., 8 ed., 444; People v. Falck, 125 N. Y. 324. But the defendant in the present case acted singly. His offense was an attempt to mislead a judicial inquiry and by improper means to have a proper conviction set aside. On the one hand this would be an interference with a tribunal administering public justice and on the other an interference with a judicial decision. Cases involving these offenses are rare, and text-writers mention them only incidentally. See 2 BISHOP, CRIM. LAW, 8 ed., §§ 86, 1029. But it has been held that an arbitration board sanctioned by courts of law is a tribunal administering public justice, and that an attempt to mislead it is a misdemeanor. Regina v. Vreones, [1891] 1 Q. B. 360. When clearly interfering with the administration of public justice, such offenses as the present should be misdemeanors at common law, for the state guards the administration of justice, and interference with state functions constitutes a misdemeanor. Regina v. Bunting, 7 Ont. 524; Com. v. Silsbee, 9 Mass. 416. As the completed act would be a misdemeanor, so also is the attempt. Regina v. Chapman, 2 C. & K. 846.

DAMAGES · CONSEQUENTIAL DAMAGES LIABILITY FOR GRATUITOUS NURSING. In an action to recover damages for personal injuries the plaintiff offered evidence of the value of his wife's nursing, although she could not recover against him for such services. Held, that the evidence is competent. Indianapolis & E. Ry. Co. v. Bennett, 79 N. E. Rep. 389 (Ind., App. Ct.).

It has been held that the value of services for which the plaintiff is not legally liable cannot be recovered. Goodhart v. Pennsylvania Ry. Co., 177 Pa. St. I. This result is based upon the theory that only the pecuniary loss may be recovered when damages are merely compensatory. See Drinkwater v. Dinsmore, 80 N. Y. 390. But on the contrary, where an injured party received gratuitous medical treatment as a member of the profession he was allowed to recover its value. City of Indianapolis v. Gaston, 58 Ind. 224. And it is well settled that the receipt of insurance cannot be proved to mitigate damages. Harding v. Town of Townsend, 43 Vt. 536. This last case is put on the ground that, as between the plaintiff and defendant, the insurance is res inter alios acta. Chicago, etc., Co. v. Pullman, etc., Co., 139 U. S. 79. Upon this ground the decisions next above cited as well as the present case seem correct. And the weight of authority is in accord. Kaiser v. St. Louis Transit Co., 108 Mo. App. 708. The defendant is liable for the pecuniary equivalent of all injuries suffered, not merely for expenses actually incurred. The need of medical services is admitted to be a consequential damage for which the defendant should compensate the plaintiff, and a gift of such services by a third party cannot alter this liability.

See

DAMAGES-MEASURE OF DAMAGES-SUBJACENT SUPPORT OF HIGHWAY. The defendants by removing minerals from beneath the surface caused a road and the land adjoining to sink a few feet. The defendants contended that their liability was limited to the cost of making an equally commodious road at the lower level. Held, that the defendants are liable for the reasonable cost of rebuilding the road to its former level. Mayor, etc., of Wednesbury v. Lodge Holes Colliery Co., [1907] 1 K. B. 78.

In the case of a private way the right of the owner is to traverse the surface without having it obstructed. While a precipitous subsidence may well amount to an obstruction, a uniform subsidence in general would not. It is believed that the owner has his full rights so long as he is able, with no material increase in difficulty, to travel the line upon the surface which marks his way. His right should not extend to the maintenance of any particular level. A public road, however, is different. It is established by law in a certain place, and any interference with it which changes its level without lawful authority is per se a nuisance. Milburn v. Fowler, 27 Hun (N. Y.) 568; Benfieldside Board v. Consett Iron Co., 3 Ex. D. 54. An abutting owner has been allowed to compel its restoration if it is unlawfully changed. Finegan v. Eckerson, 26 N. Y. Misc. 574. On the other hand he cannot complain of its restoration by those who lawfully control it. Atherton v. Cheshire County Council, 60 J. P. 6. Since, therefore, the public has a right to a particular level for the road, any one who displaces it should be liable for its restoration.

DEATH BY WRONGFUL ACT STATUTORY LIABILITY IN GENERAL- Two INDEPENDENT CAUSES OF ACTION. A statute gave personal representatives power to prosecute any personal actions their decedent might have prosecuted had he survived, except those for slander. Another statute gave certain surviving relatives the right of action for the death of their decedent occasioned through the wrongful act of others. Under the former statute damages were claimed by the administrator of the deceased, whose death had followed within a few hours after injury by the defendant. Held, that the plaintiff is not prevented from recovering because the relatives of the deceased have an independent cause of action for his death. Stewart v. United Electric Light & Power Co., 65 Atl. Rep. 49 (Md.).

This case adopts the preferable view, which is supported by the weight of authority. For a discussion of the question see 15 HARV. L. Rev. 854.

DISCOVERY NATURE AND SCOPE OF PROCEEDING-BILL AGAINST ONE NOT PARTY TO RECORD. - The defendant in an action for freight brought a counterclaim for damage to the goods caused by the plaintiff's negligence. The defendant had been indemnified by the shipper for the loss and was advancing the counterclaim on behalf of the latter. The plaintiff asked for a discovery, in a matter concerning the counterclaim, from the shipper, a foreign company, as the real party in interest. Held, that the real party in interest make discovery or in default thereof all further proceedings on the counterclaim be stayed. Compania Naviera Vascongada v. Hall, 40 Ir. L. T. 246 (Ir., K. B., Nov. 8, 1906).

It is usually said that a discovery can be had only from a party to the record of the principal suit, and many English cases affirm this doctrine. Fenton v. Hughes, 7 Ves. 287; Queen of Portugal v. Glyn, 7 Cl. & F. 466. An early case, however, held that a real party in interest, though not on the record, might be subjected to a discovery. Plummer v. May, 1 Ves. 426. Its doctrine seems to be sanctioned by a later case, which the present one follows. Willis v. Baddeley, [1892] 2 Q. B. 324. However, in both the present decision and that which it purports to follow, the nominal plaintiff had no independent interest whatever; moreover, the relief in both cases took the indirect form of an injunction against the nominal plaintiff, conditional upon a discovery by the real plaintiff. The decision at hand goes further than the other in that there the nominal plaintiff was avowedly the mere agent of the real party in interest. In another late case, where the plaintiff on the record retained a one-fourth interest, though the conduct of the proceedings had been handed over to the party mainly interested, the bill against the latter was denied. Nelson & Sons v. Nelson, 95 L. T. R. 180 (Eng., C. A., June 12, 1906).

DOMICILE HUSBAND AND WIFE-INDEPENDENT DOMICILE OF WIFE AFTER HUSBAND'S INSANITY. - The appellee instituted the present action to enjoin the prosecution of a claim for taxes. The appellee was a widow whose husband had been during the years for which the assessment was made an inmate of an insane asylum within the appellant's county. She and her husband had

been domiciled in the county prior to the husband's insanity, but subsequently thereto, but prior to the accrual of the tax in question, the appellee had established an actual and permanent residence in another jurisdiction. Held, that a wife is capable under these circumstances of establishing a separate domicile. McKnight v. Dudley, 148 Fed. Rep. 204 (C. C. A., Sixth Circ.).

The question involved, apparently a novel one, is decided in accordance with manifest justice. It is, moreover, supported indirectly by several lines of decisions. An insane person is incapable of changing his domicile. McClerry v. Matson, 2 Ind. 79. And it has been said that a husband's insanity should give the wife as complete rights as in case the husband were civiliter mortuus. See Gustin v. Carpenter, 51 Vt. 583. That desertion or cruelty will give the wife capacity to acquire an independent domicile for purposes of divorce is the doctrine of numerous decisions, and in a few cases the doctrine is applied for other purposes. Watertown v. Greaves, 112 Fed. Rep. 183 (C. C. A., First Circ.). In emphasizing, as a ground for its decision, the statutory enlargement of a wife's independent capacity, the court follows a somewhat anomalous doctrine advanced in New York and New Hampshire that the wife's emancipation from other disabilities relieves her also from dependence upon her husband's choice of domicile. Matter of Florance, 54 Hun (N. Y.) 328; Shute v. Sargent, 67 N. H. 305. Since in the present case the husband was no longer capable of choosing the matrimonial home, or of dominating the matrimonial status, there could be no better case for the application of the Supreme Court's dictum that "a wife may acquire a separate domicile whenever it is necessary or proper that she should do so." See Cheever v. Wilson, 9 Wall. (U. S.) 108, 124. DOWER RIGHTS OF WIDOW WHEN HUSBAND HAS SOLD LAND WITHOUT Her Consent. The petitioner's husband during coverture sold part of his real estate without her consent. After his death she sought to have the value of her dower in the sold land set apart out of his remaining estate. Held, that the judgment sustaining the demurrer to the complaint be affirmed. In re Park's Estate, 87 Pac. Rep. 900 (Utah). See NOTES, p. 407.

EJECTMENT - DISSEISIN REQUISITE TO MAINTAIN ACTION MENTS ABOVE SURFACE.

- ENCROACH

A telephone company without authority strung a wire over the plaintiff's land between posts neither of which touched the plaintiff's land. Held, that ejectment lies to compel the removal of the wire. Butler v. The Frontier Telephone Co., 186 N. Y. 486.

For a discussion of this subject, suggested by the same case in the lower court, see 19 HARV. L. REV. 369.

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EXECUTORS AND ADMINISTRATORS PROCEEDINGS BY OR AGAINST POWERS BEFORE ISSUE OF LETTERS. In an action of replevin for seizing certain cattle claimed by the appellee, the appellant justified as the agent of the widow of the mortgagee of the cattle. The mortgage was due and unpaid. Letters of administration were granted to the widow after the commencement of this action. The court charged that if at the time when the property was taken there was no administration in the mortgagee's estate, the verdict should be for the plaintiff. Held, that the charge was correct. James v. Nunley, 97 S. W. Rep. 1028 (Ind. Ter.).

The appellant's principal when suit was begun was executrix de son tort. Padget v. Priest, 2 T. R. 97. Even had she not later received letters of administration, it is an open question whether she would have been liable here. And there is some authority to the effect that the appellant, being only an agent and apparently not intending to assume any of the ordinary duties of an executor, should not have been liable. Givens v. Higgins, 4 McCord (S. C.) 286. But the facts of this case afford a stronger reason for disagreeing with the decision. The seizure would admittedly have been valid if made by a de jure administratrix, which the widow later became. Thereupon her right related back to the death of the intestate, and with a few exceptions, here unimportant, her previous acts as executrix de son tort would be validated. See McClure v. People, 19 Ill. App. 105. The appellee should still be barred from

a recovery against her, although her appointment came after the suit was begun or judgment obtained. Shillaber v. Wyman, 15 Mass. 322; Olmsted v. Clark, 30 Conn. 108. Nor should her agent be liable if her act of seizure became validated. Magner v. Ryan, 19 Mo. 196.

FEDERAL COURTS RELATION OF STATE AND Federal Courts -SubSEQUENT JURISDICTION OF STATE COURT AFTER REMOVAL IN PRIOR ACTION. The plaintiff discontinued an action which had been removed from a state court to a federal court on the petition of the defendant. Subsequently the plaintiff brought a new action for the same cause in a state court for an amount too small to permit removal to a federal court. Held, that the state court has jurisdiction. Young v. Bell Tel. & Tel. Co., 75 S. C. 326.

It is necessary that the federal courts should have exclusive jurisdiction over a pending suit after its removal from the state courts in order to obviate the possibility of conflicting orders, decrees or judgment. This necessity, however, disappears when the action is dismissed, and consequently the jurisdiction of the federal court need not exclude subsequent actions in the state courts, though based on the same cause. This view has prevailed, and the present case is now settled law. Gassman v. Jarvis, 100 Fed. Rep. 146; Texas, etc., Co. v. Starnes, 128 Fed. Rep. 183; aff. 133 Fed. Rep. 1022. An objection to the decision, however, is that it permits the plaintiff to allow a dismissal in the federal court for the purpose of having the cause decided by a state court. See further 17 HARV. L. REV. 574.

NERS.

FORGERY CRIMINAL LIABILITY OF PARTNER FOR DEFRAUDING PARTA partner was advanced a percentage on all advertising he secured for a program printed by the partnership. He was prosecuted for forgery for presenting spurious advertising contracts in order to receive his advance. Held, that he is not criminally liable. State v. Pope, 4 Oh. L. Rep. 532. (Oh., Hamilton Co. C. P., Nov., 1906).

The court argues that since a partner cannot be convicted of larceny or embezzlement of partnership property, by analogy he should not be criminally liable for obtaining partnership funds by forgery. The latter offense, however, does not involve the taking of another's property which is necessary in larceny or embezzlement. Forgery is defined as the false making or materially altering with intent to defraud of any writing which if genuine might apparently be of legal efficacy or the foundation of a legal liability. 2 Bishop, Crim. Law, $523. It might be argued that a partner can neither defraud nor have an intent to defraud the partnership, as that involves the idea of defrauding himself. Nevertheless it is recognized that he may be liable for defrauding his copartners in a partnership transaction. Patterson v. Hare, 4 N. Y. App. Div. 319; The Queen v. Warburton, L. R. 1 C. C. 274. And so here the intent to defraud is found in the attempt to deprive the co-partners by deception of their interest in the partnership funds to be advanced on the contracts. Therefore the failure to convict seems an unnecessary miscarriage of justice. This conclusion is supported by authority. Regina v. Smith, 9 Cox C. C. 162; Regina v. Moody, 9 Cox C. C. 166; contra, Com. v. Brown, 10 Phila. (Pa.) 184.

GAMING MECHANICAL DEVICES CHANCE OF LOSS. — A saloon-keeper maintained on his premises a slot-machine, from which on every deposit of a nickel a check would issue of the face value of five cents or more. These checks were redeemable only in trade. The saloon-keeper arranged the checks in the machine and so knew their total amount. Held, that such a device constitutes gambling within the meaning of the Liquor Tax Law. Matter of Cullinan, 114 N. Y. App. Div. 654.

This case expressly overrules a previous New York decision holding that such a device is not gambling. Cullinan v. Hosmer, 100 N. Y. App. Div. 148. The fact that the customer cannot lose, which was the decisive point in the last-named case, is held to be immaterial. The cases cited to support the present decision are distinguishable. The statutes on which three of them rest

forbid the distribution of money by chance, whereas the Liquor Tax Law merely prohibits gambling on the premises. Cf. Public Clearing House v. Coyne, 194 U. S. 497; Hudelson v. State, 94 Ind. 426; Lang v. Merwin, 99 Me. 486. The New York case cited, where money prizes were distributed according to chance, was decided under a code section which provides for just such a transaction and is therefore not in point. Cf. People ex rel. Ellison v. Savin, 179 N. Y. 164; see N. Y. PENAL CODE § 323. The device in the principal case is clearly one of chance. It may well be doubted, however, whether it is a gambling device, for to constitute gambling there should be a mutual chance of loss and gain between the parties. This is the doctrine of numerous decisions. Jordan v. Kent, 44 How. Prac. (N. Y.) 206; State v. Grimes, 49 Minn. 443; see BOUVIER, LAW DICT.

INSANE PERSONS CONVEYANCES How AVOIDED. In an action of ejectment the defendants claimed title under a deed from the plaintiffs' ancestor to a bona fide purchaser. The plaintiffs offered evidence to show that the grantor was insane when he made the deed. Held, that the evidence is inad missible, as the deed must be regarded as valid until declared invalid by a court of equity. Smith v. Ryan, 36 N. Y. L. J. 1071 (N. Y., App. Div., Dec., 1906).

In jurisdictions which regard the deeds of insane persons as void, ejectment lies. Farley v. Parker, 6 Ore. 105. By the weight of authority, however, they are held merely voidable, analogously to the deeds of infants. See 17 HARV. L. REV. 575. But while an infant may avoid against a bona fide purchaser without a return of the consideration, this is generally not allowed an insane grantor. Coburn v. Raymond, 76 Conn. 484; contra, Hovey v. Hobson, 53 Me. 451. In the case of an infant an equitable action to avoid is not required. Birch v. Linton, 78 Va. 584. And the difference noted between the rules regarding infants and insane persons does not seem sufficient to make the aid of equity necessary here. It is true that in the case of the infant the bringing of the suit is a sufficient avoidance, while in the case of an insane person the mere act of disaffirmance is not always enough, as the repayment of the consideration may be an additional condition precedent to recovery. But if it can be shown that this condition has been fulfilled or that the plaintiff stands ready to pay the money into court, ejectment might well be allowed. Eaton v. Eaton, 37 N. J. L. 108.

INTERSTATE COMMERCE

CONTROL BY STATES RAILWAY REPORTS TO STATE COMMISSION. Mandamus was sought against a non-resident railway corporation doing business within the state, commanding it to report to the state railroad and warehouse commission a full and true statement of the affairs of the company, as required by the state act of 1871. The federal interstate commerce statute of 1887 requires a similar report to the Interstate Commerce Commission. Held, that as the state and federal laws are substantially identical and the requirement is not a burden on interstate commerce, the writ of mandamus be awarded. People v. Chicago I. & L. Ry. Co., 79 N. E. Rep. 144 (Ill.).

state.

The state demanded these reports for the purposes of the state railroad commission. The creation and functions of these commissions have been held repeatedly to be a valid exercise of police power. N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 556, 571. As one of the functions of the commission is to recommend legislation affecting domestic commerce, it needs as a basis the reports of both intra-state and interstate railway corporations doing business within the In the absence of federal legislation the state could properly require these reports to be made even though affecting the acts of a carrier of interstate commerce. Cooley v. Board of Wardens, 12 How. (U. S.) 299. It might well be argued that the existence in the present case of similar federal legislation is immaterial, on the ground that the state requirement does not affect interstate commerce. R. R. Co. v. Fuller, 17 Wall. (U. S.) 560. But granting that there is an indirect effect, the existence of the federal statute in the present case does not invalidate the state statute, for the statutes are not conflicting. And