ments... should continue the same as long as his membership continued." The contract also incorporated the by-laws which provided for amendment and also for changes in the rate of assessment. Upon the association raising the rates he brings suit for breach of contract. Held, that such a raise was in the contemplation of the parties. Supreme Lodge, Knights of Pythias v. Mims, Sup. Ct. Off., No. 345.

seems to

It has been thought that decisions upon the right of benefit societies to amend its by-laws so as to affect the amount payable upon insurance policies were in hopeless conflict, not only between jurisdictions, but also within them. Some states allow no such amendments. Wright v. Knights of Maccabees, 95 N. Y. Supp. 996; Covenant Mutual Life Ass'n v. Tuttle, 87 Ill. App. 309; Pearson v. Knight Templars & M. Indemnity Co., 114 Mo. App. 283, 89 S. W. 588. But the principle of the present case that due to the fraternal nature of the order, the "risk of events," and such sacrifices as the success of the scheme might naturally demand were within the contemplation of the parties reconcile the decisions among those jurisdictions which do allow some changes. Thus increased assessments, even though they become prohibitive, are within the contemplated risk of events. Gant v. Mutual Reserve Fund Life Ass'n, 121 Fed. 403. But placing all members over a given age in a class by themselves and raising their assessments until they support their own insurance is not. Ebert v. Mutual Reserve Fund Life Ass'n, 81 Minn. 116, 83 N. W. 506, 834. Straus v. Mutual Reserve Fund Life Ass'n, 128 N. C. 465, 39 S. E. 55. Whereas a reassignment of all members into classes, though it may raise assessments, is a reasonable sacrifice. Reynolds v. Supreme Council of the Royal Arcanum, 192 Mass. 150, 78 N. E. 129.

INTERNATIONAL LAW ENGLISH PRIZE COURTS DUTY TO OBEY ORDERS IN COUNCIL. - The Zamora, a neutral ship, was seized by a British cruiser as a prize. During condemnation proceedings instituted in the Prize Court because of the contraband character of the cargo (copper), the Court acting under Order XXIX, Rule I, of the Prize Court Rules, applied to the Court for an interlocutory order that a part of the cargo be delivered to the Crown. The Prize Court so decreed and the owner of the vessel appealed to the Privy Council. Held, that the decree should not have been made. The Zamora, 32 T. L. R. 436 (Privy Council).

For discussion of the principles involved, see NOTES, p. 66.

JUDGMENTS- OPERATION AS BAR TO OTHER ACTIONS JUDGMENT ON INTERPLEADER BY GARNISHEE AS BAR TO ACTION BY JUDGMENT CREDITOR AGAINST GARNISHEE. One Gould became entitled to the surrender value of an insurance policy; later a judgment creditor of one Dunlevy, without serving Dunlevy, a non-resident, garnished Gould and the insurance company, alleging that Gould had assigned his interest to Dunlevy. The company interpleaded. Notice was given to Dunlevy but she did not appear. The court found that there was no assignment by Gould to Dunlevy and ordered payment to be made by the company to Gould. This was done. Dunlevy now brings an action in another state against the company for the value of the policy. Held, that she may recover. N. Y. Life Ins. Co. v. Dunlevy, 36 Sup. Ct. Rep. 613.

Garnishment is, as against the principal debtor, an action quasi in rem. Hence no personal judgment or decree can be given against a non-resident debtor who was not personally served. See 2 SHINN, ATTACHMENT AND GARNISHMENT, § 607. Consequently, where without service on the principal debtor judgment is rendered in favor of the garnishee on grounds that the garnishee owes no debt, the principal debtor may nevertheless bring an action against the garnishee. Ruff v. Ruff, 85 Pa. St. 333. See Puffer v. Graves, 26 N. H. 256. See 2 SHINN, ATTACHMENT AND GARNISHMENT, § 725. A judgment on an inter

pleader filed by the garnishee can certainly be no more binding on the unserved debtor than a judgment in the garnishment suit. The principal case, therefore, seems clearly right. The result that the company must pay twice is harsh. But the situation is the same in any case where a debtor successively sued on one claim by two claimants in different jurisdictions is unable to serve both in any one jurisdiction. The better course for the debtor in such a case and for the defendant in the principal case would seem to be, not to interplead but to defend each action as it is brought.

LAW AND FACT - PROVINCES OF COURT AND JURY COMPETENCY OF WITNESSES DEPENDING ON THE MAIN ISSUE. — In a prosecution for perjury it was alleged that the defendant previously had brought a suit for divorce in Texas; that he had in that suit sworn, in order to give the court jurisdiction, that he had been resident in Texas for twelve months; and that he had not, in fact, been so resident. The divorce was granted in the prior suit. The wife was offered by the state as witness for the prosecution. The court, after viewing the former divorce decree, permitted the wife to testify. Held, that there was no error. Laird v. State, 184 S. W. 810 (Texas).

The general rule that preliminary questions of fact are for the judge is no longer questioned. But the authorities are in conflict when the preliminary question of fact is also the main issue. Thus some courts hold that such circumstance should not prevent the court from passing on the question. State v. Lee, 127 La. 1077, 54 So. 356; Hichins v. Eardley, L. R. 2 P. & D. 248; Doe v. Davies, 10 Q. B. 314. Others, however, allow the question of admissibility to go to the jury, with instructions altogether to disregard the evidence if it is proved inadmissible. Respublica v. Hevice, 3 Wheeler Cr. Cas. 505 (Pa.); Stowe v. Querner, L. R. 5 Ex. 155. There seems to be no reason for departing from the general rule. The decision of the ultimate issue is, after all, still with the jury; and any undue influence, consequent upon the expression of the court's opinion, can be averted by having the jury retire during the determination of the question. The principal case, however, presents a novel problem. In objecting to the testimony of the witness, on the ground that she is his wife, the defendant is inconsistent both with his position in the former divorce suit and with his position as to the main issue in the present trial. As regards the first inconsistency, the law appears to be that a collateral attack on a judgment for want of jurisdiction of a party thereto can only be made by one not a party to the judgment. Heffron v. Cunningham, 76 Texas 312, 13 S. W. 259; cf. Valentine v. McGrath, 52 Miss. 112. But it would seem as if the defendant's attitude in this trial must also bar his objections. For by proving the preliminary fact, that she is still his wife, he is confessing the main issue, that he committed perjury and the divorce decree was void. The state is saved from an equally anomalous position by the fact that the burden of proof in a preliminary question of fact is upon the objecting party. For all relevant evidence is prima facie admissible. See J. B. Thayer, "Presumptions and the Law of Evidence," 3 HARV. L. REV. 141, 144. Thus the state is simply objecting to the defendant's position. It is submitted that the defendant should be prevented from assuming such inconsistent attitudes in the same trial, by something akin to estoppel.

LIBEL AND SLANDER - DAMAGES - LIABILITY FOR UNAUTHORIZED REPETITION. - Defendant slandered the plaintiff by words actionable per se. The trial judge refused to instruct the jury that in assessing damages unauthorized repetitions by third parties were not to be considered. Held, that this was not error. Southwestern Telegraph and Telephone Co. v. Long, 183 S. W. 421 (Texas). It is a well-established rule that the publisher of slander is not liable for its unauthorized repetition. Dixon v. Smith, 5 H. & N. 450; Cates v. Kellogg, 9 Ind. 506; Shurtleff v. Baker, 130 Mass. 293. See Schoepflin v. Coffey, 162 N. Y.

12, 17, 56 N. E. 502, 504. But an exception has been made when the repetition is privileged. Derry v. Handley, 16 L. T. (N. S.) 263. In the principal case the court makes another exception on the ground that the words are here actionable per se. The jury, which can assess general damages, will, as a matter of fact, doubtless take these repetitions into consideration. But by authority, any instruction to that effect is error. Hastings v. Stetson, 126 Mass. 329; Prime v. Eastwood, 45 Ia. 640. See NEWELL, SLANDER AND LIBEL, 3 ed., § 1079. Now the established general rule rests on an obsolescent principle of causation. See 27 HARV. L. REV. 389. But the fact that the law considers the slander actionable per se can certainly not effect such causation. It is therefore difficult to justify this distinction. The decision, however, is desirable in placing a further limitation upon a rule which is without basis of reason. For it is highly foreseeable that slanderous remarks will be repeated, and it is just this repetition which is responsible for the main injury in defamation. See Davis v. Starrett, 97 Me. 568, 576, 55 Atl. 516, 519.

LIBEL AND SLANDER - PUBLICATION BY OFFICER OF CORPORATION TO AGENT. A letter, defamatory of plaintiff, was dictated by an officer of a corporation to his stenographer and sent to a fellow-employee. Each was acting in the prosecution of the business of the corporation. Held, that this did not constitute a publication of a libel. Central of Georgia Ry. Co. v. Jones, 89 S. E. 429 (Ga.).

It has been held that dictation to a stenographer by an officer of a corporation is not a publication. Owen v. Ogilvie Pub. Co., 32 App. Div. 465, 53 N. Y. Supp. 1033. See 12 HARV. L. REV. 355. The principal case applies the same principle to communications between any fellow-employees. These cases argue that, as a corporation is an entity, acting only through agents, a communication by one agent to another is merely a communication by the corporation to itself; that the agents are merely parts of the deliberative machinery of the corporation, as distinguished from their identity as individuals. But such a distinction seems neither desirable nor true to fact. See 27 HARV. L. REV. 284. It seems impossible, as a matter of practice, to dissociate the individual from the employee. Agents do form personal opinions and act upon them. The danger to the community of licensing such communications, which in the case of a large concern might well become widespread, seems to outweigh the consideration that the corporation would otherwise be seriously hampered in the transaction of its business. If the communications are necessary and reasonable, as in the principal case, the defense of privilege is available. Lawless v. Anglo-Egyptian Cotton & Oil Co., L. R. 4 Q. B. 262; Edmondson v. Birch & Co., [1907] 1 K. B. 371, 380.

MUNICIPAL CORPORATIONS ABUTTING OWNERS-EASEMENTS. —Adjoining the plaintiff's property the city erected a public bathhouse with projections upon the sidewalk which violated the city charter and a city ordinance. The plaintiff applies for a mandatory injunction requiring the city to remove the encroachments. Held, that the injunction be granted. Hellinger v. City of New York, 95 Misc. 394.

It is generally held that an abutter has a property right in the air, light, and access afforded by the street, which cannot be taken without compensation. Story v. N. Y. etc. R. Co., 90 N. Y. 122; Abendroth v. Manhattan Ry. Co., 122 N. Y. 1, 25 N. E. 496; De Geofroy v. Merchants, etc. Ry. Co., 179 Mo. 698, 79 S. W. 386. See I LEWIS, EMINENT DOMAIN, 3 ed., § 123. Encroachments on the sidewalk which materially touch this right will be enjoined, and an ordinance permitting such cannot be supported. McMillan v. Klaw & Erlanger Const. Co., 107 App. Div. 407, 95 N. Y. Supp. 365. In most cases the offenders have been private individuals. It seems however not improper to

enforce the same rule against the city. There are undoubtedly some things that a city may not do within its streets. Lutterloh v. Mayor, etc. of Cedar Keys, 15 Fla. 306; Morrison v. Hinkson, 87 Ill. 587; Dubuque v. Maloney, 9 Iowa 450. When the city is improving roads or building bridges, courts go very far to find its action privileged as an exercise of governmental function. Callendar v. Marsh, 1 Pick. (Mass.) 418; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457; Sauer v. New York, 180 N. Y. 27, 72 N. E. 579. But arguments of that sort hardly apply to an encroachment by a public bath.

RESTRICTIONS AND RESTRICTIVE AGREEMENTS AS TO USE OF PROPERTY ACCRETIONS TO SERVIENT TENEMENT. - The owner of a large tract of land lying between bay and ocean divided it into building lots. He agreed with the buyers of lots that a certain strip running through the center of the tract from bay to ocean should be kept forever open. Extensive accretions formed at the ocean extremity of this open area. Held, that the accretions were subject to the restrictions binding the original strip. Bridgewater v. Ocean City Ass'n, 96 Atl. 905 (N. J.).

It is a familiar rule of construction of grants that the designation of navigable water as a boundary imports the shifting high-water line thereof. Mulry v. Norton, 100 N. Y. 424, 3 N. E. 581. This rule has been likewise applied to a street easement acquired by condemnation proceedings. See 22 HARV. L. REV. 610. The correctness of its application in the principal case can hardly be questioned. The same result, however, might have been reached by regarding the accretions as assimilated by or drowned in the original tract, and therefore subject to its burdens. This conception is amply supported by precedent. For example, the adverse occupancy of shore land for the statutory period carries with it title to accretions, though the latter may have but recently formed. See Campbell v. The Laclede Gas Light Co., 84 Mo. 352, 372. Similarly if the tract is mortgaged, the accretions are subject to the mortgage lien. Cruikshanks v. Wilmer, 93 Ky. 19, 18 S. W. 1018. The same is likewise true in the case of dower. Lombard v. Kinzie, 73 Ill. 446. The rule is also followed where the land is subject to a lease. Cobb v. Lavalle, 89 Ill. 331.

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RESTRICTIONS AND RESTRICTIVE AGREEMENTS AS TO THE USE OF PROPERTY EMINENT DOMAIN COMPENSATION TO OWNER OF BENEFITED LAND WHEN RESTRICTED LAND IS CONDEMNED. The plaintiff owned lots which were within a tract of restricted building lots, the deeds to which provided that no structure for business purposes should be erected on any of these lots. The defendant railway company acquired lots equitably servient to those of the plaintiff and built its tracks thereon. The plaintiff seeks compensation. Held, that the plaintiff may recover. Flynn v. New York, Westchester & Boston Ry. Co., 112 N. E. 913 (N. Y.).

In two similar cases held, that the plaintiff may not recover. Ward v. Cleveland Ry. Co., 92 Ohio St. 471, 112 N. E. 507; Doan v. Cleveland Short Line Ry. Co., 92 Ohio St. 461, 112 N. E. 505.

The question whether an equitable servitude is a contract right or a right in rem has been a matter chiefly of theoretical dispute. See 21 HARV. L. REV. 139. In the principal cases the question has become of practical importance. By adopting different theories the courts have reached different results. It seems doubtful, however, whether even here different conclusions are necessary. The two Ohio cases hold, going on the contract theory, that a restrictive covenant creates no rights effective as against the powers of eminent domain. The basis of such decision is public policy: otherwise property owners could by contracting among themselves defeat the rule that depreciation in value of neighboring property incidental to a public use does not constitute a "taking" so as to require compensation. See United States v. Certain Lands,

etc., 112 Fed. 622, 629. Accepting such basis as sound, it appears that on the property theory there may be the same result. For the creation of such property right rests on contract. Now a possible construction of the contract, and one favored by the rule that a contract must be construed, if possible, to be within public policy, is that the restriction was to cover only private undertakings. Cf. 29 HARV. L. REV. 552. If such interpretation is rejected, the full operation of the contract would, by our premise, conflict with public policy. This may mean that the contract is void. But the contract may be good, and policy still prevent the creation of an equitable property right from it. Norcross v. James, 140 Mass. 188, 2 N. E. 946. In either case, there is no property right to award compensation for.

TAXATION WHERE PROPERTY MAY BE TAXED INHERITANCE TAX ON NON-RESIDENT PARTNER'S INTEREST IN LOCAL PARTNERSHIP Realty. - The testator, a resident of New York, was a member of a partnership, which had a branch and owned realty in Pennsylvania. The partnership agreement provided that upon the death of one partner the other should carry on the business, paying to the estate of the deceased partner the value of his interest. On the death of the testator, Pennsylvania attempts to collect an inheritance tax on the testator's interest in the partnership property. The personal representatives of the testator were non-residents. Held, that the tax cannot be collected. In re Arbuckle's Estate, 97 Atl. 186 (Pa.).

Real property is taxable in the jurisdiction in which it is situated. People v. Howell, 106 App. Div. 140, 94 N. Y. Supp. 488. On the other hand, debts of whatever form are taxable at the domicile of the creditor. Meyer v. Pleasant, 41 La. Ann. 645, 6 So. 258; Kirtland v. Hotchkiss, 100 U. S. 491. Where a testator directs in his will that his realty be sold, such direction works an equitable conversion of the realty which is then taxable as personalty. In re Smyth, [1898] 1 Ch. 89; In re Coleman's Estate, 159 Pa. St. 231, 28 Atl. 137. Contra, In re Swift's Estate, 137 N. Y. 77, 32 N. E. 1096; Connell v. Crosby, 210 Ill. 380, 71 N. E. 350. The special agreement in the principal case would obviously have the same result. The doctrine of equitable conversion is not however essential to the decision of the case. The better view is that individual partners have no right to realty owned by the partnership, but only a right to its proceeds, i. e., a chose in action. Kruschke v. Stefan, 83 Wis. 373, 53 N. W. 679. But many jurisdictions allow a partition, if no debts are outstanding. Molineaux v. Raynolds, 54 N. J. Eq. 559, 35 Atl. 536. The special agreement in the principal case, however, would nullify the right, if any, to partition, which might otherwise have passed to the representatives of the testator. So on any basis they owned a chose in action, taxable only at their domicile.

TELEGRAPH AND TELEPHONE COMPANIES - DAMAGES FOR ERROR, DELAY, OR NON-DELIVERY - MEASURE OF DAMAGES WHERE TELEGRAM FORMED A ComPLETED CONTRACT. - The plaintiff sent a telegram by the defendant company accepting an offer for the sale of goods in reply to a telegram from the offeror. The defendant negligently failed to deliver the telegram, in consequence of which the offeror failed to fulfill his contract, and the plaintiff was forced to buy goods at an advanced rate. A statute provided that telegraph companies shall be liable for special damages caused by failure to deliver dispatches. 1909 REV. STAT. Mo., 83334. Held, that the plaintiff can recover the difference between the contract price and the market price. Tippin v. Western Union Telegraph Co., 185 S. W. 539 (Mo.).

The delivery of the telegram to the defendant company completed the contract with the offeror. Lungstrass v. German Ins. Co., 48 Mo. 201. Its negligence prevented the offeror from carrying out such contract. The injury to the plaintiff thus consists solely in having a reasonable expectation of performance