It is undoubtedly with a view to delaying further increase that the Faculty have again made admission more difficult, in two ways. Beginning with the autumn of 1893, no one will be received as a special student without passing the same entrance examination which is set for candidates for regular admission. Whether or not the Faculty formally abolishes the category of special students after that date, seems immaterial; for no conceivable motive will exist why any man should desire to be one. In order to realize how great a change this is from the not distant past, when half the "Law School Specials" were men who found the College too hot for them, one need only refer to the Harvard Catalogue for any year before 1890-91. The certificate of a good moral character at the outset, and the payment of a quid pro quo, were the only requisites three years ago, either to entering or to staying.

In addition to this change, the admission requirements themselves, alike for specials and regular students, are increased. Instead of offering Blackstone, and Latin or easy French at sight, candidates after 1892 must pass in Blackstone, and both Latin and French. The prospective raising of the bars will undoubtedly tend to increase the number who will try the examinations or enter as special students next fall.

The most important change, however, because the one most likely to affect the life of the School, is the division of the first-year class into sections in all its work except Criminal Law. This step, of course, involves the strengthening of the permanent teaching force. Accordingly, a new full professor has been added to the Faculty; and Mr. Beale, who, as instructor, has taught this year only four hours a week, is promoted to be assistant-professor, and will do full work. Professor Smith, in Torts, will keep both sections of the class; Property will be divided between Professors Gray and Beale, and Pleading and Contracts between Professors Wambaugh and Williston.

The new system will evidently introduce perplexities of a kind with which the School has been unfamiliar. How, for example, will the assignment of students to a section whose hour is unpopular be enforced? But at all events the present system would soon have become not only inconvenient, but impossible. In classes above a certain size, discussion is either stifled or left in the hands of a very few, to the infinite prejudice of the remainder.

A word in regard to the new members of the Faculty may be of interest. Assistant-Professor Beale graduated from the College in 1882, and from the Law School in 1887, being while there, it may be added, one of the founders of the LAW REVIEW. After graduation, he co-operated with the author in preparing for the press the last edition of Sedgwick on Damages. This fact led, in 1890-91, to an invitation to deliver a course of lectures on Damages in the Law School, and the same spring he was appointed an instructor for the year now closing. Professor Wambaugh graduated from Harvard College in 1876. He received the degree of A.M. in 1877, and that of L.L.B. the latter with very high distinction -in 1880, being a member of the first class that took the three years' course. For several years he practised in Cincinnati, at the same time teaching in the Cincinnati Law School. About three years ago he was called to a professorship in the Law School of the State University of Iowa, where he has since remained.

There will be no change next year in the optional work offered,1- the course on Massachusetts Law and Practice, and ten lectures on Patent Law. In text-books, however, there will be several welcome changes. The class in Evidence will use Professor Thayer's new collection of cases. Ultimately, it is to be hoped, Professor Smith will perform the same service for the course in Corporations; but at present his time is occupied by the preparation of "Cases on Torts," to be ready year after next, which will supplement or possibly supersede Professor Ames's collection. Meanwhile, however, the class in Corporations will make much use of the book of cases just issued by Professor Cummings of Columbia, which, except that it does not touch Municipal Corporations, follows very closely the course as given at Harvard. Finally, Professor Ames is preparing a revision of his "Cases on Trusts," in two volumes, stantially a new book.

sub

MUNICIPAL COAL-YARDS UNCONSTITUTIONAL. In reply to a question from the Legislature of Massachusetts as to whether the Legislature can constitutionally authorize a city or town to buy coal and wood and to sell them to its inhabitants for fuel, five of the justices of the Supreme Court have expressed their opinion that such a law would be unconstitutional. To carry on such a business, they say, money must be raised by taxation; taxation can only be for a public purpose; selling wood and coal to inhabitants is not the sort of thing which the Constitution contemplates as a public service for which taxation may be authorized.

Mr. Justice Holmes, in dissenting from the above opinion, takes the ground that the purpose is no less public in the case of wood and coal than it is in the case of water or gas or electricity or education; and that it is for the Legislature, and not the court, to consider the necessity or expediency of such legislation.

Mr. Justice Barker, also dissenting, simply emphasizes the point that this sort of thing can be done only if it is necessary; but he leaves it to the Legislature to determine that necessity.

The opinion of the dissenting justices is clearly more consistent with that delivered by the justices two years ago, to the effect that the Legislature could authorize cities and towns to sell gas or electric light to their inhabitants, and is also, it is submitted, correct on principle. It is for the Legislature to judge, within limits, of the exigency, and also of the public nature of the use; and so long as the resulting legislation can reasonably be said to be in a line with what has always been done, there can be no judicial question.

It should be noticed, by the way, that this is not a decision by the Supreme Court, as stated in the newspapers, but an advisory opinion delivered by the justices in response to legislative inquiry.

3

TRESPASS BY SUBTERRANEAN SQUEEZING. - A recent New Jersey case presents a rather novel instance of trespass. The declaration charged

1 As this number goes to press, a petition to the Faculty is being numerously signed for the establishment of a course in the New York Civil Code. There would be no great reason for suprise if such a course should be in operation when the REVIEW next appears.

2 Opinion of Justices, 150 Mass. 592.

8 Costigan v. Pennsylvania R. Co., 23 Atl. R. 8ro.

that the defendants wrongfully and injuriously made, on their own land, an embankment so heavy that the downward pressure (two hundred thousand tons), causing an equal lateral pressure, forced earth and gravel, lying below the surface in the defendant's land, into the plaintiff's land, thereby disturbing the surface of the plaintiff's lot, moving his house on to land not his, and cracking its foundation. The defendants justify under their charter, the embankment being properly and carefully built. The court holds that while the charter justifies any public damage from reasonable working of the road, as injury arising from noise, smoke, cinders, vibration, any damage which in its nature is distinctly private is not within their privilege. This decision, that such an embankment is not within the legislative sanction, which on the facts stated seems open to doubt, leaves the question as though the act had been done by a private individual, and the result of the case is that no man shall squeeze his neighbor's land, even below the surface. To say that a man cannot put buildings of the size he chooses on his own land is at first a startling doctrine; but if the plaintiff can prove actual transfer of particles of earth from his neighbor's lot to his, however far below the surface, it seems to follow necessarily that there is a trespass. Of course, as every downward pressure produces lateral pressure, and pressure is displacement, a man trespasses with every step he takes on his own land. It also follows, that, since the right to support extends only to the land itself, a man is absolutely responsible for all damages to his neighbor's land resulting from building on his own, however firm his land and however loose that of his neighbor. It is needless to add that the unmetaphysical sympathies of juries, as well as the infrequency of violent subterranean displacements, will keep this scientific principle within due limits.

AN OLD LAW FOR THE PROTECTION OF STUDENTS. - Economical students in our vicinity have doubtless been rejoicing over the discovery of a law by which they may at times enjoy the substantials of life at no pecuniary sacrifice. An old Massachusetts Statute, which has practically been unenforced since its enactment, reads that no innholder, tavernkeeper, retailer, confectioner, or keeper of a shop or house for the sale of drink or food, or a livery-stable keeper for horse or carriage hire, shall give credit to a student in an incorporated academy or other educational institution within the State; and in another section, that any one giving credit contrary to this provision shall forfeit a sum equal to twice the amount credited, whether the bill is paid or not. A Harvard student was recently forced, in order to dissolve an attachment for such a debt, to pay the bill. He therefore sued for money paid under duress, and recovered. The case was appealed to the Superior Court, but has since been compromised. Of course the Statute, though absurdly out of date, is not so absolutely inapplicable to the state of society now that, like the Blue Laws, it can be judicially disregarded. It is no more than foolish, and if the Legislature does not take the trouble to repeal it, occasional students will continue to grow slightly fatter from the existence of surroundings that make it impracticable for dealers to refuse all dealings on credit with protected Harvard innocents. It seems on the facts that the appellant had no case, as, if a debt due in honor but not in law is paid under compulsion of law, it is recoverable.

14

LIBRARY

UNIVERSITY OF CALIFORNIA
RIVERSIDE

RECENT CASES.

BILLS AND NOTES SIGNATURE BY OFFICER OF A CORPORATION. - Where nothing appears in the body of a note to indicate who is the maker, and it is signed by a person who affixes to his name an official title as officer of a corporation, the note is prima facie that of the person so signing. Reeve v. First Nat. Bank of Glassboro, 23 Atl. Rep. 853 (N. J.).

The decision in this case, that a person signing a bill or note prima facie incurs a personal liability in spite of an official title affixed to his signature, is opposed in principle to the rule in New York, as shown by the cases in 13 N. Y. 309; 3 Blatch. 431; 44 N. Y. 395.

BONDS, RAILWAY

NOTICE OF TRUST-DEEDS. - Plaintiff held a railway bond, reciting that it was one of a series secured by a trust-deed on property of the railway company, and that it was not obligatory till certified by the trust-company. Held, on re-hearing, reversing former opinion, that such general recital did not put bona fide holder on inquiry as to existence in the trust-deed of a condition which expressly qualified terms of payment and the right to maintain an action on the bond. Guilford v. Minneapolis, S. Ste. M. & A. Ry. Co., 51 N. W. Rep. 658 (Minn.).

CARRIERS

-CONTRACT LIMITING LIABILITY-USE OF SPECIAL CARS. - Shipping contract specified that "plaintiff had examined the car and had found it suitable for the purpose." Held, this does not estop the plaintiff from alleging that the car was unsafe. Common carriers cannot limit their liability to the extent of exempting themselves from the consequences of their own negligence, in not having their cars in good condition. The fact that the horse was shipped in a "Palace Horse-Car" owned by a different company, and procured at the special request of the plaintiff, does not relieve the carrier from liability, if it be unsafe. Louisville & Nashville R. R. v. Dies 18 S. W. Rep. 266 (Tenn.).

This is apparently a new ruling in this jurisdiction with regard to freight, though a similar rule has prevailed generally with regard to liability towards passengers carried in cars owned by other companies. 16 Lea, 380; 102 U. S. 457.

CARRIERS-DUTY TO PASSENGER ASSAULT BY FELLOW PASSENGERS.-Held, when a passenger who has been engaged in the eviction of pitmen, having bought his ticket without notice to the company that he was exposed to any particular danger, was assaulted by successive gangs of pitmen crowding into his carriage at successive stations and riding to the next, and the company's servants did nothing to protect the passenger or remove the assailants, that the company was not liable. The court say, "No obligation is entered into by the railway company with reference to the exceptional and extraordinary circumstances affecting a particular individual." Pourder v. North Eastern Ry. Co. [1892], I Q. B. 385 (Eng.).

CONSTITUTIONAL LAW-POLICE POWER.-A provision that the entire expenses of a railroad commission "shall be borne by the several corporations owning or operating railroads" within the State, is not in conflict with the Fourteenth Amendment. Charlotte, C. & A. R. Co. v. Gibbes, 12 Sup. Ct. Rep. 255.

CONSTITUTIONAL LAW-CRIMINATING TESTIMONY - EVIDENCE. A State Statute, with the object of abolishing trusts, enacted that the president of each corporation within the State should make answer under oath as to whether that corporation "has merged any of its business with a trust.' If such appeared to be the case, both officers and company were made criminally liable. Held, that this Statute was in violation of the constitutional provision that "no one shall be compelled to testify against himself in a criminal case." State v. Simmons Hardware Co., 18 S. W. Rep. 1125 (Mo.).

The court relies on Counselman v. Hitchcock, 12 Sup. Ct. Rep. 195. The exemption from being compelled to testify, is extended to evidence that could be used in future actions, as well as in present dependent actions.

CONSTITUTIONAL LAW-EVIDENCE-COUNTING QUORUM.-Held, (1) that a rule of the House of Representatives that the members present but not voting may be counted in determining the presence of a quorum does not infringe any constitutional right, but is a valid exercise of the power of the House. (2) That the journal of the House is conclusive as to the presence of a quorum, and no evidence can be received to impeach it. United States v. Ballin, 12 Sup. Ct. Rep. 507.

The same principle is involved in the second point of this decision as in Field v. Clark, 12 Sup. Ct. Rep. 495, i. e., that the fact that a public document is signed and

deposited with its proper custodian, is conclusive of its authenticity, and no outside evidence is receivable to impeach it.

CONSTITUTIONAL LAW-JURISDICTION OF FEDERAL COURTS.-U. S. Rev. Sts. § 5508, make it a crime to conspire to injure any citizen in the exercise of a right secured to him by the Constitution or laws of the United States. The defendants were indicted under this section, they having conspired to kill A, who was in the custody of a United States marshal under a commitment to answer for a crime against the United States. Held, that under these circumstances A's right to be protected against lawless violence was a right "secured to him by the Constitution or laws of the United States" within the meaning of the Statute, and that consequently the Federal Courts had jurisdiction of this case. The court distinguishes the Civil Rights Cases, 109 U. S. 3; United States v. Cruikshank, 92 U. S. 542; and United States v. Harris, 106 U. S. 629. Lamar, J., dissents. Logan v. Ünited States, 12 Sup. Ct. Rep. 617.

CONSTRUCTIVe Trusts-Director's LIABILITY TO COMPANY'S CREDITORS. The purpose of requiring the ownership of a certain number of shares as a qualification for the office of director, being to assure zeal in the affairs of the company and a careful scrutiny of the same on account of such pecuniary interest, where a director was induced by the promotor of the company to take shares and assume the office through an agreement on the promotor's part to take the shares off his hands at par value at any time, held, that to assume and hold the office of director without disclosing this agreement was a breach of confidence against the company. The shares having be come practically valueless, and the promotor having taken them off A's hands, in pursuance of the agreement, held, that having regard to A's fiduciary position of director, whatever benefit or profit accrued to him under the indemnity constituted by his secret agreement with the promotor, belonged to the assignees of the company. In re North Australian Territory Co. [1892], 1 Ch. 322 (Eng.).

Aside from the fact that the agreement was not disclosed, nothing appears in this case showing any fraudulent purpose on the part of the director, or that he did not faithfully perform his duties, or that the company suffered any direct injury. The case can best be put on the broad ground that improper profit made through a fiduciary relation, cannot be retained by the fiduciary.

CONTRACTS ILLEGALITY- COMBINATION IN RESTRAINT OF Trade. A contract made by a corporation with all the manufacturers in the United States of an implement necessary to agriculture, by which for fifty years it is to have power to regulate the price at which they shall sell, and the quantity they shall manufacture, subject only to the condition that its requirements shall be uniform to all manufacturers, is illegal and void. The court will relieve a party to it. Strait v. National Harrow Co., 18 N. Y. Supp. 224 (Supr. Ct.).

CONTRACTS LIABILITY OF CARRIERS. On a shipment of goods under a contract of sale, the consignee is entitled to inspect and examine the goods, to ascertain whether they correspond with the invoice, and to a reasonable time to receive and remove them; and during that period the liability of the carrier as a carrier remains undischarged. McNeal v. Braun, 23 Atl. Rep. 687 (N. J.).

The doctrine here affirmed is directly contra to the Massachusetts doctrine upon the same point.

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CONTRACTS REFUSAL OF THIRD PERSON TO PERFORM CONDITION PRECEDENT. Though a policy of life insurance requires the production of a certificate of the cause of death from the attending physician as a condition precedent to the right to payment, yet if the physician obstinately and unreasonably refuses a certificate, payment may be enforced without it. O'Neill v. Mass. Ben. Ass'n, 18 N. Y. Supp. 22 (Supr. Ct.).

The New York doctrine that, if an architect unreasonably refuses to certify his satisfaction with work done under a building contract which makes his certificate a condition of recovery, there may be recovery without the certificate, is here extended to a case where the person refusing is not an agent of the party to be charged. The contrary rule is illustrated by Worsley v. Wood, 6 T. R. 710; Johnson v. Phænix Insurance Co., 112 Mass. 49.

CORPORATIONS ACCEPTANCE OF CHARTER - INJUNCTION - PLAINTIFF'S STANDING IN COURT. - The Act incorporating a company required that the work necessary to its operation should be commenced within three years, and completed within ten, and these conditions were not satisfied. Held, that the company had no legal existence, and that the commencement of the work after the period limited for its completion would be enjoined at the suit of a neighboring private landowner whose property thereby received special injury. Bonaparte v. Baltimore, H. & L. R. R. Co., 23 Atl. Rep. 784 (Md.).