supra. Salutary legislation would therefore be defeated in many cases, and so it is submitted that possible regulation should only be a circumstance in determining whether the legislature acted reasonably.

CONTEMPT OF COURT

CONSTRUCTIVE CONTEMPT

- BRINGING PRESSURE

TO BEAR ON ATTORNEY. - In a suit for divorce, the plaintiff's father wrote a letter to the defendant urging him to withdraw his defense, and he personally threatened to bring political pressure to bear on defendant's attorney provided he did not withdraw from the case. Held, that these acts constituted contempt of court. In re Bowers, 104 Atl. 196 (N. J.).

The commonest kind of contempt occurring outside the court room is that which impedes the court in reaching a result in accord with the rules and principles of law. Thus publication of proceedings may so arouse the community, including witnesses, counsel, and jurors, as to make calm judgment difficult. Globe Newspaper Co. v. Commonwealth, 188 Mass. 449, 74 N. E. 682. See 28 HARV. L. REV. 605. This may be the effect, even though the matter published be true; hence truth is no defense. Hughes v. Territory, 10 Ariz. 119, 85 Pac. 1058; People v. News-Times Pub. Co., 35 Colo. 253, 84 Pac. 912. But truth may be considered in mitigation of punishment. Globe Newspaper Co. v. Commonwealth, supra. Within the same principle comes arrest of witness. Smith v. Jones, 76 Me. 138. Also writing letters to influence witness. Welby v. Still, 66 L. T. Rep. (N. s.) 523. Assault on a witness who has testified would seem to be contempt, since general security of witnesses, after as well as during the trial, is essential to freedom in testifying. Brannon v. Commonwealth, 262 Ky. 350, 172 S. W. 703. So concealing or tampering with evidence. Commonwealth v. Braynard, Thach. Crim. Cas. (Mass.) 146. The principal case is a new and novel example of this sort of contempt of court. To force an attorney to withdraw from a cause would deprive the court as well as the party of the services of an officer, and would obviously tend to an incomplete presentation of the case for one of the parties. This would obstruct the court in applying accurately its rules and principles. For a general discussion of the subject, see Beale, "Contempt of Court, Criminal and Civil," 21 HARV. L. REV. 161.

DEEDS CONSTRUCTION AND OPERATION LAKE AS A BOUNDARY. — A conveyed land to B. The deed described a boundary as “along said road and lake." The road bordered on the lake, which was not navigable. Held, the deed conveys title to the land under the lake to the center thereof. Land & Lake Association v. Conklin, 170 N. Y. Supp. 427 (App. Div.).

If the fee in a highway is in the abutting owners subject to a public easement, a conveyance describing land as "along said road" prima facie conveys to the center thereof. Peck v. Denniston, 121 Mass. 17; Columbus Ry. Co. v. Witherow, 82 Ala. 190, 3 So. 23. Cf. Thomas v. Hunt, 134 Mo. 392, 35 S. W. 581; In re Ladue, 118 N. Y. 213, 23 N. E. 465. A deed of land "along a lake" conveys, prima facie, the bed thereof as far as the grantor owns. Gouverneur v. National Ice Co., 134 N. Y. 355, 31 N. E. 865; Lembeck v. Nye, 47 Ohio St. 336. Cf. Brophy v. Richeson, 137 Ind. 114, 36 N. E. 424. Literal construction, therefore, of a deed "along said road and lake" is impossible. But construing it against the grantor, as is the rule, the deed would be interpreted as if it read 'along said lake." Lake Erie & W. R. Co. v. Whitham, 155 Ill. 514, 40 N. E. 1014. Thus the question is raised as to how far titles of owners of land bordering on lakes extend. In some jurisdictions the state holds the title to lake beds so that the public may enjoy the boating and fishing. Wright v. Council Bluffs, 130 Iowa, 274, 104 N. W. 492; Dolbeer v. Suncook, etc. Co., 72 N. H. 562, 58 Atl. 504. Cf. Paine v. Woods, 108 Mass. 160. In some, riparian owners hold title to the beds. Glasscock v. National Box Co., 104 Ark. 154, 148 S. W.

248; Fuller v. Bilz, 161 Mich. 589, 126 N. W. 712; Cobb v. Davenport, 32 N. J. L. 369; Hinckley v. Peay, 22 Utah, 21, 60 Pac. 1012. Cf. Gouverneur v. National Ice Co., supra, with Geneva v. Henson, 140 App. Div. 49, 124 N. Y. Supp. 588. Other states reserve title only in the case of non-navigable lakes. Broward v. Mabry, 59 Fla. 398, 50 So. 826; Lamprey v. State, 52 Minn. 101, 53 N. W. 1139; Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, 74 Atl. 648. Cf. Webster v. Harris, 111 Tenn. 668, 69 S. W. 782. The rights of the public would be sufficiently protected if riparian owners held in fee lake beds subject to a public easement to the use of the waters. Such is the rule in Michigan. People v. Horling, 137 Mich. 406, 100 N. W. 691.

DOMICILE RIGHT OF AN INFANT ORPHAN TO CHOOSE. The plaintiff was born in Massachusetts and resided there with his parents. When eight years old he was hurt by the defendant railroad and suit was started in a Massachusetts court. Then his parents died, and at the age of nineteen he moved to Maine to live with an aunt. At the age of twenty the plaintiff sued the defendant, a Massachusetts corporation in a federal court on the ground of diversity of citizenship. Held, the plaintiff was domiciled in Maine. Bjornquist v. Boston & A. R. Co., 250 Fed. 929.

The domicile of an infant orphan is the domicile of the last surviving parent and cannot ordinarily be changed by any act of the infant. Ex parte Dawson, 3 Bradf. (N. Y.) 130; In re Henning, 128 Cal. 214, 60 Pac. 762; In re Benton, 92 Ia. 202, 60 N. W. 614; Vennard's Succession, 44 La. Ann. 1076, 11 So. 705. The reason is, "a person who is under the power and authority of another possesses no right to choose a domicile." See STORY, CONFLICT OF LAWS, 41. And so grandparents - but no others who are regarded as natural parents with control of an infant orphan, have been allowed to change the domicile of the infant. In re Benton, 92 Ia. 202, 60 N. W. 614; Kirkland v. Whateley, 86 Mass. 462; Mintzer's Estate, 2 Pa. Dist. R. 584. There is not, however, this identity of domicile where the guardian is not a natural but an appointed one, since he has no right to change the domicile of the orphan outside the state of appointment. Daniel v. Hill, 52 Ala. 430; Lamar v. Micou, 112 U. S. 452. Where an infant has been emancipated by his parents he has been held able to change his own domicile. Russell v. State, 62 Neb. 512, 87 N. W. 344. See 19 HARV. L. REV. 215. To prove emancipation it is necessary only to show that by circumstances the infant has been freed from his father's control. Sword v. Keith, 31 Mich. 247; Jacobs v. Jacobs, 130 Ia. 10, 104 N. W. 489; Bristor v. Chicago & N. W. R. R., 128 Ia. 479, 104 N. W. 487; West Gardiner v. Manchester, 72 Me. 509. An infant orphan who has reached an age of discretion and is without grandparents or guardian should be regarded as emancipated by circumstances, since he is under the control of no one. Being emancipated, he is then capable of choosing his own domicile and the principal case is clearly right.

ELECTIONS NOTICE TO NONRESIDENT VOTERS RIGHT TO VOTE. — The Constitution of New Jersey allows voters engaged in military service outside the election district to vote. Pursuant to this authority, a statute provides the method by which such voters shall be notified of impending elections. ACT FEB. 28, 1918, §§ 4-6, 9, P. L. 437. A special election on the liquor question was held in which these statutory requirements as to notice were not complied with, and the number of voters thereby disfranchised was sufficient to have changed the result. Held, that the election be set aside. In re Holman, 104 Atl. 212 (N. J.).

Where the time and place of an election are designated by law, statutory provisions as to the notice which must be given voters are construed to be merely directory. Commonwealth v. Kelly, 255 Pa. 475, 100 Atl. 272; Kleist

v. Donald, 164 Wis. 545, 160 N. W. 1067. See 17 HARV. L. REV. 191. But where the time or place are not prescribed by law, so that notice is essential for that purpose, such provisions are generally regarded as mandatory. State v. Staley, 90 Kan. 624, 135 Pac. 602; Staples v. Astoria, 81 Or. 99, 158 Pac. 518. See MCCRARY, ELECTIONS, 4 ed., §§ 182-185. In either case, however, the better view is that failure to give notice will not render the election void unless the number of voters deprived of a chance to vote was sufficiently large to have changed the result. Lyon v. Smith, Cl. & H. 101; State v. McFarland, 98 Neb. 854, 154 N. W. 719; Hill v. Skinner, 169 N. C. 405, 86 S. E. 351. Since, in the principal case, the number of absent voters in the military service who received no notice of the special election was sufficient to have changed the result, the election was properly set aside. In a dictum, however, the court says that the right to vote inheres in citizenship and is guaranteed by the Constitution. But participation in the suffrage is not a right; it is a privilege, the exercise of which is dependent upon the will of the state. Anderson v. Baker, 23 Md. 531; People v. Barber, 48 Hun (N. Y.) 198. See COOLEY, PRINCIPLES OF CONSTITUTIONAL Law, 2 ed., 259. Accordingly, the suffrage is not within the privileges and immunities guaranteed by the Constitution. Minor v. Happersett, 21 Wall. 162; Govgar v. Timberlake, 148 Ind. 38, 46 N. E. 339. See 2 STORY, CONSTITUTION, 5 ed., § 1932.

EQUITY

-NEGATIVE COVENANTS - UNIQUE PERSONAL SERVICE -DocTRINE OF LUMLEY VERSUS WAGNER. The defendant entered into an exclusive contract to serve as an editorial writer, and covenanted not to write for any publication in competition with the plaintiff during the term. Before expiration of the contract he left the plaintiff's employ and began to write for a competitor. It appeared that plaintiff had spent over $40,000 in exploiting the defendant and that he occupied a unique position among writers upon the war. Held, injunction allowed. Tribune Association v. Simonds, 104 Atl. 386 (N. J.).

The case is chiefly interesting as showing the settled adherence of American courts to the doctrine of Lumley v. Wagner, in cases of unique service or unique servants. Lumley v. Wagner, 1 De Gex, M. & G. 604. But the large expenditure made by plaintiff in exploiting defendant for the purpose of rendering his services as a writer more valuable suggests a further question. If the master has given the servant an exceptional value for the purposes of the service in reliance upon the contract, would not the grave injury to him involved in the loss of this expenditure in case of breach, and the accrual of the benefit thereof to a competitor, suffice to overcome the practical difficulties involved in enforcement of negative covenants in such cases and justify an injunction although many other servants of equal intrinsic capacity might be available? After all the significance of unique service, or unique qualifications in the servant, lies in the grave hardship to the plaintiff involved in such cases. Other exceptional cases of grave hardship should not be treated on a different basis.

FEDERAL COURTS RELATIONS OF STATE AND FEDERAL COURTS — EFFECT OF STATE STATUTE GIVING COURTS OF GENERAL CIVIL JURISDICTION PROBATE POWERS. A nonresident filed a caveat to proceedings for the probate of a will in the Georgia courts. An application by him to remove the case to the United States courts was denied, and in accordance with a state statute allowing appeals from any decision of the ordinary, the case was taken to the Superior Court without an adjudication on the will. Subsequently, the record in the case was brought into the federal court under the rule allowing a petition for removal to be filed in spite of an adverse decision by the state court. Held, that the case be remanded to the state court. Meadow v. Nash, 250 Fed. 911.

Originally, in the United States, probate jurisdiction was of a special character, exclusively vested in independent courts, and removal to the federal courts was not available. Broderick's Will, 21 Wall. (U. S.) 503. A removal of a will contest is, however, permitted when the state courts of general civil jurisdiction, as distinguished from special appellate courts of probate, are authorized by statute to determine the validity of a will; provided also that the will has been probated by lower courts and is attacked as a muniment of title. Gaines v. Fuentes, 92 U. S. 10; Brodhead v. Shoemaker, 44 Fed. 518. See Ellis v. Davis, 109 U. S. 485, 496, 3 Sup. Ct. Rep. 327, 334. But a bill to contest a will and to enjoin a distribution under it is not removable. Farrel v. O'Brien, 199 U. S. 89, 25 Sup. Ct. Rep. 727. A distinction is drawn between an independent controversy inter partes and a proceeding ancillary to the original probate. Yet the proof of the will is the same in both cases; so that the distinction hardly seems tenable. In the principal case, the only issue on appeal may have been the one of removal and not the probate of the will, for the lower court had not passed on the will. If the state court did have probate jurisdiction, probate by the lower court is immaterial, for the appeal is an investigation de novo at any rate. See 1914 PARK'S ANN. CODE GA., § 5014.

JUDGMENTS FOREIGN DIVORCE DECREE-COLLATERAL ATTACK FOR FRAUD. A husband sued for divorce in Vermont. He offered to show that his wife's divorce from her first husband was obtained in New York through false testimony as to her age. Held, the foreign decree cannot be attacked collaterally. Deyette v. Deyette, 104 Atl. 232 (Vt.).

If a court obtains jurisdiction through fraud of a party, its judgment is merely voidable, impeachable by direct proceedings. Ex parte Moyer, 12 Idaho, 250, 85 Pac. 897; Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204. See 20 HARV. L. REV. 239. But if the court is defrauded into thinking it has jurisdiction when there is none in fact, the judgment is assailable collaterally. Dunham v. Dunham, 162 Ill. 589, 44 N. E. 841; Magowan v. Magowan, 57 N. J. Eq. 322, 42 Atl. 330; Plummer v. Plummer, 37 Miss. 185. If the fraud merely goes to the evidence, there can be no collateral attack. Field v. Sanderson, 33 Mo. 542; Christmas v. Russell, 5 Wall. (U. S.) 290; Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223. But see contra, Dumont v. Dumont, 45 Atl. 107 (N. J.). Even a direct attack will generally not be allowed in such a case; otherwise litigation would become endless. Greene v. Greene, 2 Gray (Mass.) 361; United States v. Throckmorton, 98 U. S. 61; Parish v. Parish, 9 Ohio St. 534. But if the fraud is extrinsic, as in preventing the unsuccessful party from fully presenting his case, the judgment may be attacked collaterally. Daniels v. Benedict, 50 Fed. 347. A stranger, however, may in any case of fraud impeach the judgment collaterally, because it is his only means of availing himself of the fraud. De Armond v. Adams, 25 Ind. 455; Sidensparker v. Sidensparker, 52 Me. 481; Ogle v. Baker, 137 Pa. St. 378, 20 Atl. 998. See Greene v. Greene, 2 Gray (Mass.) 361, 366. But the stranger must be prejudiced with regard to some pre-existing right. Ruger v. Heckel, 85 N. Y. 483. See also FREEMAN, JUDGMENTS, § 335. In the principal case the second husband had no such right. Some courts will never disturb a divorce decree even in case of the grossest fraud, because of the extensive collateral effect on third parties. Parish v. Parish, supra; DeGraw v. DeGraw, 7 Mo. App. 121. Generally, however, divorce decrees are treated like any other. Daniels v. Benedict, supra; Johnson v. Coleman, 23 Wis. 452. For a discussion of the distinction between collateral and direct attack, see 23 HARV. L. REV. 67.

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS RECOVERY FOR NON-OCCUPATIONAL DISEASES. - A common laborer was directed in the course of his employment to do some painting on a building. The cold weather

made the paint very difficult of application, and he was required, at intervals, to heat it in a closed unventilated room provided for the purpose. After working for two days on this employment, he contracted a severe case of lead poisoning, from the effects of which he died shortly thereafter. Held, that this was an injury by accident and not an occupational disease. Industrial Commission of Ohio v. Roth, 120 N. E. 172 (Ohio).

The courts have been very cautious in awarding compensation for diseases, other than occupational, because the danger of fraudulently attributing every illness to the industry is considerable. The strict compliance, therefore, with the provisions present in most acts, that the injury be traceable to accidental origin, and that the date of such be definitely fixed, has been required. Brintons, Ltd. v. Turvey, [1905] A. C. 230; Glasgow Coal Co. v. Welch, [1916] 2 A. C. 1; Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640. The English courts, however, in an important case seem to have imposed these requirements too stringently, in demanding that the injury result from a single fortuitous event, and to them it is insufficient to show that it must have been the outcome of one or more of a few occurrences. Eke v. Hart-Dyke, [1910] 2 K. B. 677. The facts in the principal case are almost analogous to those in the English case, yet the Ohio court reached the opposite result. The facts in both show that the illness resulted from accidental source and the dates of such were sufficiently fixed and certain. The causal connection in both was obvious and imposition was amply guarded against. It seems, therefore, that the Ohio court, in refusing to construe so strictly, has arrived at a more sound and just result.

MECHANICS' LIENS - RIGHT OF SUBCONTRACTOR TO LIEN REGARDLESS OF ORIGINAL CONTRACT. A statute provided that a subcontractor shall have a lien for labor or material furnished for the erection of a house, such lien being perfected only after notice thereof had been filed within a period of sixty days. It further provided that "the risk of all payments made to the original contractor shall be upon the owner until the expiration of the 60 days herein before specified." Held, that the subcontractor's lien does not depend upon the terms of the original contract. Coates Lumber & Coal Co. v. Klaas, 168 N. W. 647 (Neb.).

The statute governing in the principal case is of the type which creates in favor of the subcontractor a direct lien, as distinguished from the type of statute which grants a lien derivatively, through the principal contractor's right thereto. See 2 JONES, LIENS, § 1286. The former type of legislation has been frequently assailed on the ground of unconstitutionality, but the courts have declared in its favor in most jurisdictions. Thus, the validity of a statute securing a lien irrespective of the state of accounts between the owner and the principal contractor has been sustained practically in all states. Ballou v. Black, 21 Neb. 131, 31 N. W. 673; Mallory v. La Crosse Abattoir Co., 80 Wis. 170, 49 N. W. 1071; Jones v. Great Southern Fireproof Hotel Co., 86 Fed. 370. Contra, Palmer v. Tingle, 55 Ohio St. 423, 45 N. E. 313. And a statute construed to create a lien despite a stipulation against such in the original contract, though meeting with greater opposition, has been sanctioned by the weight of authority. Norton v. Clark, 85 Me. 357, 27 Atl. 252; Miles v. Coutts, 20 Mont. 47, 49 Pac. 393; Whittier v. Wilbur, 48 Cal. 175. Contra, Kelly v. Johnson, 251 Ill. 135, 95 N. E. 1068; Waters v. Wolf, 162 Pa. 153, 29 Atl. 646. It is true that such statutes do somewhat impair the freedom to contract and do create a danger of making the owner liable to double payment, but no undue hardship results by requiring him to regard sufficiently the rights of a third person who has increased the value of his property. Again, the desirability of these statutes is obvious when we consider the encouragement they offer to a class which by its activities aids so materially in promoting the public welfare.