the workhouse and served his term. Later an indictment was returned against him on the same facts charging assault with intent to rape, an offense over which the mayor's court had no jurisdiction. The defendant pleads double jeopardy. Held, that the plea is bad. Crowley v. State, 113 N. E. 658 (Ohio).

The decision rests upon the ground that as the mayor's court had no jurisdiction of assault with intent to rape the defendant was never in former jeopardy for that offense. The same reasoning is advanced in similar decisions on this point in other jurisdictions. Boswell v. State, 20 Fla. 869; Murphy v. Commonwealth, 23 Gratt. (Va.) 960; Huffman v. State, 84 Miss. 479, 36 So. 395. But the double jeopardy exists in placing the defendant twice in peril for the lesser, not for the greater, offense. State v. Cooper, 13 N. J. L. 361. The inferior court's lack of jurisdiction of the greater offense is, therefore, beside the point. See I BISHOP, CRIMINAL LAW, 7 ed., § 1058. The weight of authority supports this view and is contra to the principal case. Regina v. Miles, 17 Cox C. C. 9; Storrs v. State, 129 Ala. 101, 29 So. 778; State v. Smith, 53 Ark. 24, 13 S. W. 391; Commonwealth v. Squire, 1 Met. (Mass.) 258. See 16 HARV. L. REV. 142. An exception, however, has been established in cases where, after a conviction for assault, the person attacked dies from the wounds inflicted. Regina v. Morris, 10 Cox C. C. 480; Commonwealth v. Roby, 12 Pick. (Mass.) 496; Commonwealth v. Evans, 101 Mass. 25; Diaz v. United States, 223 U. S. 442. In these cases the total inadequacy of the punishment to the crime ultimately proved to have been committed has led courts to depart from the strict logic of the situation.

DOWER - Effect of Release of Dower — AVOIDANCE OF A FRAUDULENT CONVEYANCE IN WHICH DOWEr is Released. — A wife joined her husband in a conveyance of realty to trustees. After the husband's death the conveyance was set aside as being in fraud of creditors. It is provided that a widow shall be endowed of one third of all inheritable lands of which her husband was seized during coverture. 4 CONSOL. LAWS OF N. Y., Real Property Law, § 190. The wife seeks dower in the property. Held, that she is entitled to dower. Jenkins v. Mollenhauer, 56 N. Y. L. J. 362 (N. Y. Sup. Ct., App. Term).

A conveyance in fraud of creditors is made voidable only for the protection of creditors of the grantor; and hence the grantor, or, if he is dead, his representatives, cannot upset it. Britt v. Aylett, 11 Ark. 475. See Wetherbee v. Cockrell, 44 Kan. 380, 383, 24 Pac. 417,418; Lathrop v. Pollard, 6 Colo. 424, 427. Likewise a joint conveyance by husband and wife in fraud of the husband's creditors will effectually bar any dower claim as long as the creditors do not attack it. Elmendorf v. Williams, 57 N. Y. 322. Cf. Kitts v. Wilson, 130 Ind. 492, 29 N. E. 401. But when a fraudulent conveyance is avoided by creditors, it is regarded as if it never existed. A release of dower is operative only when made in favor of one having title to the property in which dower exists. Pixley v. Bennet, 11 Mass. 298. See 2 SCRIBNER, DOWER, 307; Malloney v. Horan, 49 N. Y. 111. If, therefore, the husband's conveyance is set aside by the creditor, the grantee loses also the benefit of the dower release. Lockett v. James, 8 Bush (Ky.) 28. The creditors by thus incidentally setting aside the release do not acquire the dower interest, since the release had deprived them of no benefits to which they were entitled. Nor is the widow estopped to claim her dower against the creditors, since their claim is not by virtue of her conveyance but in spite of it. Consequently it is generally held that, if the conveyance is set aside during the husband's life, the wife is entitled to dower on his death. Ridgway v. Masting, 23 Ohio St. 294; Malloney v. Horan, supra. Also, since an avoided conveyance is regarded as if it never existed, the widow should equally get dower, where, as in the principal case, the joint fraudulent conveyance was made during the life of the husband and avoided after his death. Frederick v. Emig, 186 Ill. 319, 57 N. E. 883; Bohannon v. Combs, 97 Mo. 446, II S. W. 232. See, contra, Den v. Johnson, 18 N. J. L. 87.

MORAL DUTY. –

DUTY OF CARE - MISFEASANCE AND NONFEASANCE The plaintiff, intending to become a passenger, jumped upon the step of a closed, vestibuled car of a moving train and clung to the handbars. Later the attention of the conductor was called to the plaintiff's condition, but he did not open the door and the plaintiff finally dropped off from exhaustion. He now sues the conductor and the railway company for his resultant injuries. Held, that he may take judgment against both. Southern Ry. Co. v. Sewell, 90 S. E. 94 (Ga.).

As the plaintiff had not put himself in the proper place for the carriage of passengers, it would seem that he was a trespasser and not a passenger. Merrill v. Eastern R. Co., 139 Mass. 238, 1 N. E. 548; Illinois Central R. Co. v. O'Keefe, 168 Ill. 115, 48 N. E. 294. The court then decides that the conduct of the defendants was misfeasance. As the train was moving when boarded by the plaintiff and its motion did not throw him off, it is difficult to find any action by the defendants, after the plaintiff was seen, which caused the accident. The only basis of liability would seem to be a nonfeasance. But there is no legal duty to act, except such as may arise from legal relations. See James Barr Ames, "Law and Morals,” 22 HARV. L. REV. 97, 111-13. However, some courts, while ostensibly recognizing this rule, have, in effect, imposed affirmative duties where no relation existed. Thus, where one had made a gratuitous promise to effect the cancellation of an insurance policy, but did not take steps to do so, he was held liable for the resultant loss, the court calling his conduct misfeasance. Condon v. Exton-Hall Brokerage & Vessel Agency, 80 Misc. 369, 142 N. Y. Supp. 548. Again, under the guise of estoppel, an affirmative duty has been placed upon the apparent maker of a forged note to warn parties, relying on his apparent credit, of the forgery. Urquhart v. Bank of Scotland, 9 Scot. L. R. 508; Ewing v. Dominion Bank, 35 Can. Sup. Ct. 133. See 26 HARV. L. REV. 349. It has been suggested that a legal duty should be imposed to take positive steps to remove a peril innocently created or to mitigate an injury innocently caused. See F. H. Bohlen, "The Moral Duty to aid Others as a Basis of Tort Liability," 56 U. OF PA. L. REV. 217. In the principal case the conductor had, without fault, contributed to the dangerous situation by increasing the speed of the train. Accordingly, under this theory he would be under a duty to aid the plaintiff. And as this duty arose out of the employment, by the speeding up of the train, the railroad may well be liable for its breach. But if, after all, the duty is simply one of assistance whenever ethical standards demand it, the conductor seems to owe it as a human being merely, and not as a servant of the railroad. It would seem that the imposition of affirmative duties is more properly the function of legislation than of judicial decision. If, however, the courts contemplate the incorporation of moral duty into the law, it is advisable that they do so openly, and that its extent and limitations be clearly defined.

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ECCLESIASTICAL LAW-HOW FAR ADOPTED IN THE UNITED STATES LEGAL SEPARATION. — In a suit for absolute divorce, the lower court decreed a legal separation. A statute empowered the court to grant divorce from the bonds of matrimony, but made no provision for a legal separation. On appeal, held, that the ecclesiastical law, allowing divorce from bed and board, was not adopted as part of the common law. Hodges v. Hodges, 159 Pac. (N. M.) 1007. For discussion of this case, see NOTES, p. 283.

EQUITY RECEIVER - JURISDICTION TO APPOINT A RECEIVER WHEN SUCH APPOINTMENT IS THE SOLE OBJECT OF THE SUIT. An individual with assets of about $70,000,000, chiefly in land, and liabilities of $22,000,000, of which $15,000,000 was secured, and $7,000,000 unsecured, became financially embarrassed for ready money to meet his obligations. Two of the unsecured creditors brought suit for a receiver, alleging the above facts and that, if the

secured creditors enforced their claim against the property, the unsecured creditors must go unpaid, while on the other hand, if the secured creditors held off for a time, in all probability all would be paid. Held, that a receiver be appointed. Thompson's Receivership, 44 Pa. County Ct. 518.

For a discussion of the principles involved in this decision, see Notes p. 273.

AL

A peti

EXECUTORS AND ADMINISTRATORS PROCEEDINGS BY OR AGAINST LOWANCE FOR COUNSEL FEES INCURRED IN DEFENCE OF Bequest. tion was filed for allowance from the estate for fees of counsel employed by executor to defend certain charitable bequests subsequently declared void. Held, that the petition be denied. Arnold's Estate, 64 Pitts. L. J. 596.

The argument is that an executor may not charge the estate unless he is acting in the interest of those eventually found to be entitled to the property. Originally an executor derived his authority entirely from the will. He acted as the representative of the deceased to carry out his wishes. Modern procedure merely requires the sanction of the court to this appointment and does not change the purpose. It would seem then that it was not only the privilege but the duty of the executor to defend the validity of the bequests and of the whole will. Compton v. Barnes, 4 Gill (Md.) 55; Bradford v. Boudinot, 3 Wash. (U. S. C. C.) 122; Succession of Heffner, 49 La. Ann. 407, 21 So. 905; In re Title, Guaranty & Trust Co., 114 App. Div. 778, 100 N. Y. Supp. 243. Wherefore he may defend a bequest even against the wishes of the legatees interested therein. Reed v. Reed, 74 S. W. 207 (Ky.). But he must be bona fide in the belief that there is a reasonable chance of upholding the bequest. Henderson v. Simmons, 33 Ala. 291; Bratney v. Curry, 33 Ind. 399; Bowden v. Higgs, 77 Tenn. 343. However, there is authority in support of the principal case, that the executor is acting in behalf of the legatees, and not for the testator. Under such theory it must follow that his recovery for counsel fees against the estate is limited to the interest in the estate of the legatee for whom he has acted. Koppenhaffer v. Isaacs, 7 Watts (Pa.) 170. And he can have no charge upon the estate if unsuccessful. Kelly v. Davis, 37 Miss. 76. But a special provision in the will desiring the expenses of defending a bequest to be paid out of the estate must surely protect the executor. The dictum of the court that such a provision would be void if the bequest was void is difficult to sustain. For there can be no public policy against testing one's legal rights in court.

INTERSTATE COMMERCE COMPETITION - REVIEW OF COMMISSION'S ORDERS. The Panama Canal Act provided a heavy daily penalty for the operation after a certain date of steamship lines found by the Interstate Commerce Commission to be in competition with railroads which owned them. The Lehigh Valley Railroad petitioned the Commission, before the date from which the penalties under the Act were to run, to declare that there was no competition between the railroad and its steamers. After two hearings in which the Commission found as a fact that such competition existed, the railroad brought a bill in equity asking the District Court to enjoin the Commission's order, which had refused, on the ground of the competition found, to declare that the railroad might run its boats without penalty. Held, that the prayer be denied. Lehigh Valley R. v. U. S., 234 Fed. 682.

The position of the Interstate Commerce Commission as a fact-finding body is put in question. Without a binding statutory declaration the conception has become crystallized that the orders of the Commission as an administrative body made after hearing evidence are reviewable only in so far as they exceed the Commission's statutory authority, violate a constitutional provision, reveal a mistake in law, or transcend the bounds of reason. I.C.C. v. Ill. Cent. R., 215 U. S. 452; I. 'C. C. v. Union Pacific, 222 U. S. 541; I. C. C. v. Louisville, etc. R., 227 U. S. 88; Los Angeles Switching Case, 234 U. S. 294. See

Procter & Gamble v. U. S., 225 U. S. 282, 297. And the Panama Canal Act has expressly declared that the Commission's finding on the question of competition shall be final. 37 STAT. AT LARGE, 566. Congress has thus put beyond a court's review the decision of a body of experts on this involved technical subject. But the complainant's case must also fall on another ground. The district courts have been given the power vested in the recently abolished Commerce Court to "enjoin, set aside, annul or suspend" the Commission's orders. 38 STAT. AT LARGE, 219; 36 Stat. At Large, 539. By judicial interpretation this power to review has been limited in this class of cases to orders made to a carrier that it act affirmatively. Procter & Gamble v. U. S., supra. Any other interpretation, which would give the district courts by an exercise of original action the power to enforce their conceptions as to the meaning of the Act on subjects in their nature administrative, would greatly tend to nullify the benefits derived from the existence of the Commission as a permanent body for investigation and administration. The order in the principal case is clearly negative, since with or without it the railroad must cease to run boats or else pay the penalty provided by Congress.

INTERSTATE COMMERCE - INTERSTATE COMMERCE COMMISSION - REGULATION OF RATES - ELIMINATION OF WATER COMPETITION BY NATURAL CAUSES. Certain railroads on applications to the Interstate Commerce Commission were allowed to reduce coast to coast rates below those to intermediate points, so as to meet water competition through the Panama Canal. Slides for several months had stopped traffic through the canal. Because of the greater profit in foreign commerce it was apparent that this traffic would not be resumed for several months. Section 4 of the Interstate Commerce Act provides in part that when a railroad shall reduce its rates in competition with a water carrier, it shall not be permitted to increase them except on grounds other than the elimination of water competition. The shippers of intermediate points seek to have the former applications reopened for further consideration and readjustment. Held, that the application will be reopened. In the Matter of Reopening Fourth Section Applications, 40 Int. Com. Rep. 35.

For a discussion of the principles involved in the decision, see NOTES, P. 276.

LIBEL-PUBLICATION

- DOES AN INTERCEPTED LETTER CREATE LIABILITY FOR PUBLICATION. The defendant sent a letter to a friend containing statements defamatory of the plaintiff. The friend never saw the letter, but his father opened and read it. The plaintiff sues for this publication. Held, that the defendant is not liable. Powell v. Gelston, [1916] 2 K. B. 615.

Upon publication of a libel, the liability of the publisher as regards the falsity of the words, their reference to the injured party, and their defamatory content, would seem to be absolute. Hulton v. Jones, [1910] A. C. 20; Campbell v. Spottiswoode, 3 B. & S. 769. See Neville v. Fine Arts, etc. Co., [1895] 2 Q. B. 156, 168. Contra, Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462; Jones v. Polk & Co., 190 Ala. 243, 67 So. 577. See 29 HARV. L. Rev. 533. But as regards the publication itself of the libel, an element of fault appears to be necessary to create liability. See The King v. Paine, 5 Mod. 163, 167. The defendant is liable if the writing came into circulation through his negligence or failure to take proper precautions to prevent it. Vitzetelly v. Mundie's Co., [1900] 2 Q. B. 170; Thorley v. Lord Kerry, 4 Taunt. 355. A fortiori, an intended publication creates liability. But in the principal case the intended publication never took place, and negligence seems not to have been present, since the opening of the letter by the father could not have been foreseen. In the criminal law the intent to produce one result will create responsibility for another proximately caused, though unintended. Gore's Case, 9 Co. 81 a. But that is not the theory of the law in civil actions. Perhaps, however, the neces

sary culpability may be drawn from a closer analysis of the intent here presented. In fact the intent is twofold - being primarily to publish the letter to the friend, and secondarily to injure the plaintiff by publishing the libel. If the letter had been sent to one newspaper, and it were intercepted and published by another, surely the main intent being to publish, and the method of publication secondary, culpability would ensue. Whether, in the principal case, the secondary intent to injure by the publication is sufficiently strong to create liability, is a question of degree. Cf. Fox v. Broderick, 14 Ir. C. L. Rep. 453.

LIBEL AND SLANDER - ACTS AND WORDS ACTIONABLE SENDING CARD OF RIVAL UNDERTAKER TO FAMILIES IN WHICH THERE IS SERIOUS ILLNESS. - Hughes and the defendant were rivals in the undertaking business, having no other local competitors. The defendant printed and sent to families in which there was at the time serious illness the following card: "Bear in mind our Undertaking Department. Satisfaction guaranteed. [Signed] H. L. Hughes." Hughes sues for libel. Held, that defendant's demurrer be overruled. Hughes v. Samuels Bros., 159 N. W. 589 (Ia.).

The written statement in this unique case, plus its necessary implications, amounts to this: "I, [the plaintiff], solicit your business by this card." Such a statement is certainly untrue, and is made with malice; but it apparently does not come within the generally accepted limits of libelous words, since, taken by itself, it can injure neither the plaintiff's reputation nor his business. See ODGERS, LIBEL AND SLANDER, 5 ed., 2. It becomes libelous, however, because of an extrinsic circumstance, the time at which it is published. But any statement must need extrinsic circumstances to become a libel. An accusation of theft, for instance, is libelous only because of that extrinsic circumstance, the institution of private property. Accordingly it is submitted that what extrinsic circumstances are incorporated into a written statement is merely a question of degree, and that the statement in the principal case is rightly held libelous. Morrison v. Ritchie & Co., [1902] 4 Sc. Sess. Cas. 645. Cf. Rocky Mountain News Printing Co. v. Fridborn, 46 Colo. 440, 104 Pac. 956; Fitzpatrick v. Age-Herald Pub. Co., 184 Ala. 510, 63 So. 980; Pavesich v. New England Life Ins. Co., 122 Ga. 190, 220, 50 S. E. 68, 81. In the principal case the court rests the decision upon the broad principle that to injure another intentionally without justification is a tort, and, where the instrument of injury is the publication of written words, a libel. Thus the law of libel is at once rationalized and made an integrated part of our modern law of torts. See 29 HARV. L. REV. 559. The principal case is perhaps the first to announce such a doctrine of libel, formerly only an action on the case having been allowed for such torts as these. ODGERS, LIBEL AND SLANDER, 5 ed., 77 et seq. But whether or not the case is properly called one of libel, recovery is justified. For there is certainly intended injury, justified if at all by competition; and competition by means of telling lies is hardly to be protected.

MARRIAGE

NULLIFICATION RIGHT TO DISCONTINUE ACTION FOR ANNULMENT. A husband brought a bill for the annulment of his marriage. Subsequently he moves for leave to discontinue the action. Held, that the motion be denied. Ginther v. Ginther, 56 N. Y. L. J. 132 (Sup. Ct., App. Div.).

A suitor has a right before the final decision to discontinue any action or proceeding instituted by him, if no rights have accrued to others. In re Butler, IOI N. Y. 307, 4 N. E. 518. But where there is a public interest in the correct adjudication of the controversy the court may refuse to allow leave to abandon the action. So one who contests an election is refused permission to discontinue his contest. Miles v. Macon, 188 S. W. 313 (Mo.). See 24 HARV. L. REV. 673. In divorce suits the rights of the parties to the record are not alone to be con