front him, and mirabile dictu, by accusing bay and mien declare, "Thou art the man." This strange misbelief is with some people apparently incorrigible. It is a delusion which abundant actual experience has failed to dissipate. It lives on from generation to generation. It has still the attractiveness of a fresh creation. "Time writes no wrinkles on its brow." In discussing what is involved in following a trail the court says that the path of every human being through the world at every step from the cradle to the grave is strewn with the putrescent excretions of his body and this waste matter is in process of rapid decomposition. The blood. hound which has great ability for differentiating smells, follows the odor thus generated; and for a short time a man may be easily trailed in the woods or open country; but in the city, after a lapse of considerable time, as in this case about twelve hours of sunlight, where the trail is crossed by hundreds of others, the work is obviously more difficult; yet the dog does the best he can. Nice and delicate questions are time and again presented to him for decision and as to the considerations which move his choice of path, he cannot be cross-examined and the jury informed. The result of all this is that the conclusions of the dog are too unreliable to be accepted as evidence.

CONTEMPT. (SECURING INFORMATION AS TO JUROR

-INVESTIGATION.)

TEXAS COURT OF CRIMINAL APPEALS.

In Ex parte McRae, 77 Southwestern 211, a mere effort to secure the service of a party to find out how a juror stands in reference to a case on trial is held not to authorize a punishment for contempt, where the party employed makes no effort to tamper with the juror, nor holds out any inducement to the jury to decide one way or the other, nor talks with the juror about the case. The court says that the conduct of the relator was reprehensible, but it cannot find any decision of any court of last resort authorizing his punishment for contempt. The trial court is commended for its diligent effort to maintain the purity of the administration of jus

tice, and the court enters its hearty disapprobation of relator's conduct, though because he does not bring himself within any of the known rules authorizing his punishment for contempt, it is compelled to discharge him.

DAMAGES. (GOODS PURCHASED ON INSTALLMENT PLAN-CONVERSION BY THIRD PERSON-MEASURE OF PURCHASER'S RECOVERY.)

WASHINGTON SUPREME COURT.

In Messenger v. Murphy, 74 Pacific Reporter 480, it is held that a purchaser of property on the installment plan under a contract providing that the title shall remain in the seller until the purchase price is fully paid, but nevertheless binding the purchaser to pay absolutely, may recover from a third person who converts the property, its full value, though he has paid but a portion of the purchase price. No authorities are cited and not much discussion is devoted to the point.

DAMAGES. (PERSONAL INJURY EXPECTANCY — AGE OF ANCESTORS.)

MICHIGAN SUPREME COURT.

In Hamilton v. Michigan Central Railroad Co., 97 Northwestern Reporter 392, it was held in a personal injury case that the opinions of experts as to plaintiff's expectancy, based in part on mortality tables and in part on the hypothesis that plaintiff resembled his father and grandfather, who lived to advanced ages, were properly excluded. The court says, that without passing on the question of whether the longevity of the father and grandfather was competent evidence, it is agreed that when coupled with a proposal to show by experts the expectancy of life based upon that testimony and upon mortality tables, it was not competent. Judge Grant while dissenting, agrees with this view, and says that in his experience he never knew the question to be raised before, and but one case is citedthat of Chattanooga R. Co. v. Clowdis, 90 Ga. 258, 17 Southeastern 888, in which the opinion is too meagre to throw light on the question.

DEATH. ( (WIDOW'S ACTION FOR DAMAGES-FAILURE OF HUSBAND TO SUPPORT HER-EFFECT.) TEXAS COURT OF CIVIL APPEALS.

In De Garcia v. San Antonia & A. P. Ry. Co., 77 Southwestern 275, it is held that a wife, who has not by her own acts forfeited the right to support by her husband, may recover damages for his death, though he had not for a long time supported her. The court says that so long as she has not acted in a way to forfeit it, the wife is entitled to support at the hands of her husband, and a party wrongfully killing him cannot deprive her of damages by a plea that the husband had not been fulfilling the duties that he owed his wife. Railway 7. Spicker, 61 Texas 427, 48 Am. Rep. 297, is cited as authority.

EIGHT-HOUR LAW. (STATE CONTRACTS-CONSTITUTIONALITY OF STATE LAW-LIBERTY OF

CONTRACT.)

UNITED STATES SUPREME COURT.

In Atkin v. State of Kansas, 24 Supreme Court Reporter 124, the provisions of the General Statutes of 1901 of Kansas, Sections 3827, 3828, making it a misdemeanor for any official or any contractor or sub-contractor with, or on account of, the State, a county or city, to require more than eight hours as a day's work from employés, or to pay less than the current rate of wages for such eight-hour day, are passed upon in the light of the guaranty of the 14th amendment to the Federal Constitution, securing liberty of contract. In sustaining the statute, the court says that no question as to the constitutionality of such an act interfering with the contractual relations of private employers and employés is presented. Municipal corporations are mere political subdivisions of the State. The street improvement which defendant contracted to make was one which the State, had it deemed proper, could have taken immediate charge of by its own agents. Instead of undertaking that work directly it invested one of its governmental agencies with power to care for it. Whether done by the State or one of its instrumentalities, the work was of a public and not of a private character. Being of a public character it

necessarily follows that the statute does not infringe the personal liberty of any one. It may be that the State in enacting the statute intended to give its sanction to an eighthour day. The court has no occasion to consider the question of the propriety of such a limitation of working hours, for, whatever may have been the motives in the enactment of the statute, it can imagine no possible ground to dispute the power of the State declaring that no one contracting to work for it or for one of its municipal agencies should permit or require an em ployé to labor in excess of eight hours each day. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the State; nor is any employé entitled, as a part of his liberty, to perform labor for the State. If it be said that a statute like this one is mischievous in its tendencies, the answer is that the responsibility therefor rests upon the Legislature, and not upon the courts. Equally without any foundation is the proposition that the statute denies to the defendant or to his employés the equal protection of the law. It applies alike to all who do work on behalf of the State or of the municipal sub-divisions, and to those employed thereon. The fact that the work performed by defendant's employés was not dangerous and that ten hours labor thereat would not be injurious is held to be immaterial.

matter was referred to a master and the complainant endeavored to subpoena defendant's president. Being unable to do so, the master reported such inability to the court; and apparently entertained the suspicion that defendant's president was evading service. The court ordered the defendant to produce its president, and when it failed to do so, granted a preliminary injunction as prayed for in the complaint.

The Court of Appeals says this order was unwarranted. It knows of no legal duty imposed upon a corporation to produce its officer as a witness when the process of the court cannot reach him. "The duty of an officer of a corporation is prescribed by law, or by the articles of incorporation, or by the by-laws of the corporation. The power of a corporation over its officers has respect only to the duties to the corporation which the law imposes. We know of no legal duty imposed upon an officer of a corporation to appear as a witness against that corporation, except in obedience to the writ of subpoena of a court duly served upon him. We know of no power in the corporation, or any duty devolving upon it, to compel its officer to appear as a witness before a court. We know of no right in a court to compel a corporation to produce its officer as an adverse witness. The law furnishes ample machinery to procure the testimony of any witness, in the service of its writ and by proceedings for contempt for disobedience of the writ, or, if the witness is beyond the jurisdiction of the court, by deposition or upon commission." In addition the action of the lower court is characterized as an attempt to determine the merits of the pending motion for injunction, when neither the record nor the marshal's return disclosed any jurisdiction over defendant's person.

INSURANCE. (COMBINATIONS BETWFEN INSURANCE

COMPANIES CONSTITUTIONALITY OF PROHIBI-
TORY STATUTE-GRANT OF SPECIAL PRIVILEGES
-GENERAL AND UNIFORM OPERATION OF LAWS
-LIBERTY OF CONTRACT.)

UNITED STATES CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF IOWA. In Greenwich Insurance Company v. Carroll, 125 Federal Reporter 121, the constitu

tionality of Iowa Code, Secs. 1750 and 1755, prohibiting combinations between fire insurance companies in relation to rates, agents' commissions and manner of doing business, is determined, first in view of the provision of the State Constitution against the granting of special privileges and immunities and that requiring all laws when they can be made applicable, to be general and of uniform operation, and second, as to whether the statute violates the liberty of the contract secured by the 14th amendment to the Federal Constitution. The statute is held valid so far as the provisions of the State Constitution are concerned, but is held to violate the 14th amendment. Considering the objections under the State Constitution, the court says that the law has a uniform operation. No one can expect that all laws shall operate upon all people. Classifications can be made providing they are not arbitrarily made. All will agree that there must be rules and regulations applicable to insurance companies not applicable to other corporations. Hundreds of statutes have been enacted in Iowa known by all to be intended to apply to a single city or town or corporation or trade; and so it is as to granting immunities to some which are denied to others. Exempting farmers and merchants, manufacturers, etc., from liability in case an employé is injured by another employé's negligence and holding a railroad liable, illustrates the whole proposition.

After quoting from a number of judges' general statements as to liberty of contract, the court says that the slightest knowledge of insurance will persuade any one that companies must have some arrangements and must make some contracts with other companies. Other classes of both men and associations must do the same and both the laws and constitution permit it, and to single out insurance companies and to say that they shall not, is neither logical nor allowable under the 14th amendment. The following cases are cited as "covering the entire question." People Orange County Road Const. Co. (N. Y.) 67 N. E. 129; Republic Co. v. State (Ind. Sup.) 66 N. E. 1006; State

. Kreutzberg (Wis.) 90 N. W. 1098. Employers of labor agree what they will pay and laboring men agree for what sum they will work. Buyers and vendors of various commodities make their agreements. Farmers will, and do agree as to the price for which they will sell and what they will pay for labor; but this statute says that insurance companies shall agree as to none of these things. The court disclaims any intention to hold that insurance companies can combine and thereby conspire to accomplish any desired purpose. It only holds that insurane companies may make the usual contracts that all other persons and corporations may make, which this statute seeks to take from them, and which will be taken from them if this statute is upheld.

NEW YORK SUPREME COURT.

De Sando v. New York Herald Co., 85 New York Supplement III, brought up for review the liability incurred by the New York Herald in publishing plaintiff's photograph as that of the Italian bandit Musolino in connection with an article describing the various misdemeanors of that interesting individual.

Not having his portrait at hand, the Herald, as newspapers sometimes do, published one which the public might accept as such. The article was concededly libelous, and the court says it would be a reflection upon the law if it was powerless to afford some remedy for so grievous a wrong. Stripped of extraneous considerations the question is whether the person responsible for the publication of a photograph in connection with a libelous article referring specifically to the picture, can escape liability by placing underneath it the name of a person different from that of the person of whom the picture is a likeness, and stating in the article some facts which, standing alone, would tend to negative the inference that the article was published of and concerning such person. Two cases are cited: the first: Clary-Squire v. Press Publishing

Co., 58 App. Div. 362, 68 New York Supplement 1028, in which an actress, whose stage name was Mary Louise Clary brought an action of libel based upon the fact that defendant published her picture as that of Louise Cleary in connection with an account of the latter's marriage. The question of identity was left to the jury, which found against the plaintiff. The second case is Morrison v. Smith, 83 App. Div. 286, 82 New York Supplement 166, in which the publication of plaintiff's picture in connection with the advertisement of a book said to contain the experience of a giddy typewriter girl was made the basis of an action. The complaint was dismissed on a technicality, but on the question of liability the court said that its inclination would be to hold that the case was for the jury. On the whole the court decides that the New York Herald was responsible.

MONOPOLY. (TOBACCO TRUST-EXCLUSIVE HANDLING OF WARES STIPULATION-REFUSAL TO SELL TO RETAIL DEALER-VIOLATION OF ANTITRUST ACT.)

UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT. In Whitwell 7. Continental Tobacco Company, 125 Federal Reporter 454, the court had before it the question whether, in refusing to sell a retailer except under an arrangement advantageous to him only in the event that he would agree to handle none of the product of independent manufactur ers, the defendant violated the Act of Congress of July 2, 1900 (United States Compiled Statutes, 1901, page 3200), prohibiting every contract, combination in the form of trust or otherwise, or conspiracy in restraint of commerce, and also punishing every person who shall monopolize, or .attempt to monopolize any part of the trade among the several States. This branch of the tobacco trust does business as follows: It allots to an intending purchaser an amount of goods which he is required to buy during each succeeding period of four months, which is much in excess of what he will be able to sell during that time. The price is.

fixed so high that, if the purchaser paid it, he could not make any profit from re-sales. If, however, he will agree to refrain from dealing in tobaccos made by independent concerns, his allotment is reduced to the amount he is able to sell, and a rebate made to him on the aggregate price of the goods bought, so that the handling of the trust's goods becomes profitable. Plaintiff having refused to refrain from handling the goods of independent manufacturers, who were competing with the defendant, the latter refused to reduce the allotment which it had made to him or the price thereof, and plaintiff refused to purchase defendant's goods. He was unable to procure them elsewhere, and alleged damages.

The liability of the defendants is first considered under section one of the act, prohibiting combinations or conspiracies in restraint of interstate commerce. The purpose of the statute, the court says, is to prevent the stifling or substantial restriction of competition, and the test of the legality of a combination under the act is its direct and necessary effect upon competition in interstate commerce. If this is to stifle or to substantially restrict free competition, it falls under the ban of the law; citing a large number of authorities, among them the Northern Securities case, 120 Federal Reporter 721, 725. The court declares that the right of each competitor to fix the prices of his commodities and dictate the terms upon which he will sell them is indispensable to the very existence of competition. Strike down or stipulate away that right, and competition is not only restricted, but destroyed. Conceding, for the sake of argument, that the defendant could conspire or combine with its employé, no such combination or conspiracy would be a violation of the law, as the two defendants have never been and never intend to be competitors. There has never been any competition, actual or possible, between them, and hence no competition between them can be

restrained by their combination to conduct the trade of the defendant company. Then follows this significant utterance: "The tobacco company and its competitors were not dealing in articles of prime necessity, like corn and coal, nor were they rendering public or quasi public service, like railroad and gas corporations. Each of them, therefore, had the right to refuse to sell its commodities at any price. Each had the right to fix the prices at which it would dispose of them, and the terms upon which it would contract to sell them. Each of them had the right to determine with what persons it would make its contracts of sale." Citing In re Greene (Circuit Court), 52 Federal 104, 115; In re Grice (Circuit Court), 79 Federal 627, 644: Walsh 7. Dwight, 58 New York Supplement 91, 93; Brown v. Rounsavell, 78 Illinois 589; Commonwealth v. Grinstead (Kentucky), 63 Southwestern 427; Allgeyer . Louisiana, 165 United States 578, 589, 17 Supreme Court 427, 41 Lawyers' Edition 832. There is nothing in the statute depriving any of these competitors of these rights. Had there been, the law itself would have destroyed competition more effectually than any contracts or combinations could possibly have stifled it.

As to the violation of the second section, prohibiting an attempt to monopolize interstate commerce, the court holds that its purpose is practically identical with the first section, and that no attempt to monopolize a part of commerce among the States is made illegal unless the necessary effect of that attempt is to directly and substantially restrict interstate commerce. It was not the purpose of the second section to punish the customary and universal attempts of all manufacturers and traders engaged in interstate commerce to monopolize a fair share of it in the necessary conduct and desired enlargement of their trade, while their attempts leave their competitors free to make successful endeavors of the same kind.