mother of a bastard child and was afterwards married to Lawson Parker, who, "inasmuch as he was not the father of the bastard, we may assume on matrimonial concerns was free from petty scruples."

The court then quotes from the record the plaintiff's testimony concerning this union in which she declares she did not know whether she was married or not, but that they had a preacher there who did something and she and her husband "went together under that head," that is as husband and wife. After two or three years, "Lawson, weary of well-doing, threw off the connubial yoke, and of his own motion, without disturbing the courts, left for parts unknown.”

The plaintiff's courtship with decedent is then detailed. She was sitting in her door, when decedent who was a perfect stranger and whom she had never seen before came up. "He preferred he was lonely. I was sitting in the door there by myself, and he asked me if I was lonely, and I preferred, yes, I was lonely, and he asked then if I would like to be his wife, if I would be the mother of his child, and I said I thought I could, and he asked me if I could live in his house and treat him adjustably, and I told him I thought I could. Q. Did you tell him in what way you wanted to live? A. As his wife. That is the way I went to him. I did not reconsider myself to have any husband after Lawson left me, and I was living there from hand to mouth, and I wanted a husband, and he said he would be a husband to me, and I said as I was a woman I would accomplish to be his wife, and I went with him." The court continues, “On this primitive, prepluvial agreement they lived together for many years, and up to the time of Daniel's death. But after about a year of their cohabitation there was an unfortunate episode. Lawson Parker turned up! He appeared at Maggie's new home in quite a violent humor, and proceeded to abuse and beat her, without any interference from Daniel, so that she had him arrested and put under bond to keep the peace, and then he left again, and has been seen no more, and Daniel and Maggie continued to live to

MASSACHUSETTS SUPREME JUDICIAL COurt.

In Martell v. White, 69 Northeastern Reporter 1085, the defendants were sued for conspiracy to injure plaintiff's business. It appeared that defendants, who were granite manufacturers in a certain city, formed an association, a by-law of which provided that any member having business transactions with any other such manufacturer in the city, not a member of the association, in relation to granite, should, for each transaction, contribute to the association's expenses from S1 to $500, the amount to be determined by the association. By means of fines from $10 to $100, on members for dealing with plaintiff, his business, which was quarrying granite, was ruined.

The court says the facts show a clear and deliberate interference with the business of a person with the intention of causing him damage, and the question is whether the defendants, in accomplishing their purpose, have kept within lawful bounds. The defendants contended that they were justified by the law applicable to business competition. The court says that in view of the considerations upon which the right to competition is based, it believes that defendants have failed to show that coercion or intimidation of plaintiff's customers is justified by the law of competition. It says: "It (the right of competition), is a right, howeyer, which is to be exercised with reference to the existence of a similar right on the part of others. The trader has not a free lance. He may fight, but as a soldier, not as a guerilla. The right of competition rests upon the doctrine that the interests of the great public are best subserved by permitting the general and natural laws of business to have their full and free operation, and that this end is best attained when the trader is allowed, in his business, to make free use of these laws. . .

But from the very nature of the case, it is manifest that the right of competition furnishes no justification for an act done by the use of means which in their nature are in violation of the principle upon which it rests. The weapons used by the trader who relies upon this right for justification must be those furnished by the laws of trade, or at least must not be inconsistent with their free operation. . . . In the case before us the members of the association were to be held to the policy of refusing to trade with the plaintiff by the imposition of heavy fines, or, in other words, they were coerced by actual or threatened injury to their property. . . This method of procedure is arbitrary and artificial, and is based in no respect on the grounds upon which competition in business is permitted, but, on the contrary, it creates a motive for business action inconsistent with that freedom of choice out of which springs the benefit of competition to the public, and has no natural or logical relation to the grounds upon which the right to compete is based."

A large number of cases are cited and distinguished.

DEATH BY WRONGFUL ACT. (STIPULATIONS AVOIDING LIABILITY TOWARD FREE PASSENGERS.)

UNITED STATES SUPREMme Court.

In the case of Northern Pacific Ry. Co. v. Adams, 24 Supreme Court Reporter 408, is discussed the liability of a railroad company for the wrongful death of a passenger who was riding upon a pass, the conditions of which stipulated that the company would not be liable under any circumstances, whether of negligence of agents or otherwise, or for any injury to the person or loss or damage to the property of the passenger using the same. The death occurred in Idaho, and the statutes of that State provide that when death is caused by the wrongful act or neglect of another, his heirs or representatives may maintain an action for damages against the person causing the death, or if such person is employed by another who is responsible for his conduct, then also against the employer.

The Circuit Court charged the jury that they were not to consider what was the duty of the railroad toward the person who was killed, but the duty which the road owed to his heirs, and the duty which the latter had the right to exact from the railroad in this case is the same duty which the railroad compay owed to the public in general. The Supreme Court holds that it is error to maintain that although it should appear that the railroad company failed in no way in its duty toward the deceased, it could yet be held responsible, under the Idaho statute above mentioned, to his heirs for the damages they suffered by reason of his death. Wrongful act and neglect alike imply the omission of some duty, and that duty must be the duty owing to the decedent. It cannot be that if the death was caused by an unintentional act it can be considered wrongful or negligent at the suit of the heirs of the decedent. They claim under him, and can recover only in case he could have recovered had he been only injured. Upon the question of the liability of the road to a person riding upon a free pass, the court says that the question to be considered is, whether the company is liable in damages to a person injured through the ordinary negligence of its employés who at the time is riding upon a pass given as a gratuity and upon the condition, known and accepted by him, that the road shall not be responsible for such injuries. This question has received the consideration of many courts, and has been answered in different and opposing ways. The Supreme Court mentions the cases of Rogers v. Kennebec S. B. Co., 86 Me. 261, 29 Atl. 1069; Quimby v. Boston & Maine R. Co., 150 Mass. 365, 23 N. E. 285; Griswold v. New York & N. E. R. Co., 53 Conn. 371, 4 Atl. 261; Kinney v. Central R. Co., 34 N. J. Law 513; and others which hold that the company under these circumstances is not responsible. The following English cases are also referred to as holding to the same effect: McCalley . Furness R. Co., L. R. 8 Q. B. 57; Hall v. Northeastern R. Co., L. R. 10 Q. B. 437; Duff v. Great Northern R. Co., Ir. L. R. 4 C. L. 178; and Alexander v. Toronto & N. R. Co., 33

U. C. Q. B. 474. Of the cases which hold that the company is responsible are cited Rose v. Des Moines Valley R. Co., 39 Iowa 246; Pennsylvania R. Co. v. Butler, 57 Pa. 335; Mobile & O. R. Co. v. Hopkins, 41 Ala. 486; and Gulf, C. & S. F. R. Co. v. McGown, 65 Texas 640. The court distinguishes certain of its own decisions, viz: Philadelphia & R. R. Co. v. Derby, 14 How. 468, and New World . King, 16 How. 469, where, although the parties were free passengers, it did not appear that there were any stipulations concerning the risk, and the companies were also held guilty of gross negligence. The case of B. & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. Rep. 385, 44 L. Ed. 560, is relied on as decisive of the point under consideration. The Supreme Court holds that the judgments of the Circuit Court and the Circuit Court of Appeals, which permitted a recovery, must be reversed. Justices Harlan and McKenna dissent.

EXPERT TESTIMONY. (CONTRACT FOR CONDITIONAL COMPENSATION-ILLEGALITY.)

NEW YORK SUPREME COURT.

In Laffin v. Billington, 86 New York Supplement 267, the plaintiff, a physician, sued for services rendered to defendant's client as an expert witness, in a suit for injuries against a street railway company. At the trial he testified that he was to get ten per cent. if he helped work up the case; that he told defendant that he would take up the expert end if he got ten per cent. of the settlement or judgment, and that he wouldn't go ahead as an expert witness without defendant's personal guaranty, as he had no faith in the honesty of his client. A writing was introduced, signed by defendant's client, authorizing defendant to pay plaintiff's fees out of the recovery, and followed by defendant's written agreement to pay plaintiff ten per cent. of his client's recovery. The court holds that this bargain was illegal and void. Wellington 7. Kelly, 84 New York 533. is quoted to the effect that an agreement by a stranger to furnish evidence to substantiate a claim or defense for a compensation de

pending upon the success of his efforts, is injurious in its tendency, as furnishing an inducement for perjury and subornation of witnesses. Lyon 7. Hussy, 82 Hun. 15, 31 N. Y. Supp. 281 is also cited.

FIRE PROTECTION. (CITY PROPERTY-CONTRACT WITH WATERWORKS COMPANY.)

CALIFORNIA SUPREME COURT.

In Town of Ukiah City v. Ukiah Water & Improvement Co., 75 Pacific Reporter 773, it is held that a city which, under its power to conserve the general public good, contracts with a waterworks company for general fire protection, has no cause of action against the company for municipal property destroyed by fire, through the company's failure to supply a sufficiency of water. The case turns on the distinction between contracts made by municipal corporations in what may, with perhaps questionable propriety, be termed its private capacity, and those which it makes as a governmental agency of the State, for the benefit of the public at large. The contract in suit was held to belong to this latter class.

The opinion of the court below is set out in full and adopted by the Supreme Court, which distinguishes the cases of Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 12 Southwestern Reporter 554, 13 Southwestern Reporter 249, 7 L. R. A. 77, 25 Am. St. Rep. 536; Gorrell v. Water Supply Co., 124 N. C. 328, 32 Southeastern Reporter 720, 46 L. R. A. 513, 70 Am. St. Rep. 598; Planters' Oil Mill. Monroe Water Works & Light Co., 52 La. Ann. 1243. 27 Southern Reporter 684: Watson v. Inhabitants of Needham, 161 Mass. 404. 37 Northeastern Reporter 204, 24 L. R. A. 287.

In the opinion of the trial court it is said, "It may be assumed here that it is within the power of a municipality, as a property owner, to enter into such a contract with a water company for the protection of the property which it owns as a legal individual; but it certainly needs something more than evidence showing an accepted service for general fire purposes to establish such a contract, and

the evidence here shows nothing more. The distinction between the powers conferred on municipal corporations for public purposes and for the general public good, and those conferred for private corporate uses, is clearly marked by the decisions."

MARRIAGE. (INCESTUOUS CHARACTER - ANNULMENT PUBLIC POLICY.)

WEST VIRGINIA SUPREME COURT OF APPEALS. Martin v. Martin, 46 Southeastern Reporter 120, was a bill filed to annul a marriage between complainant and defendant on the ground that, being related by blood as nephew and aunt they went to Pennsylvania to evade the law of West Virginia, in getting married, and with the intention of returning to the latter State to reside. This latter allegation as to the purpose to evade the West Virginia law was denied by the defendant.

The parties had lived together eighteen years, and had a son ten years old. The lower court concluded that "a court of equity ought not to entertain a litigant who vaunted his own iniquity and made that his sole ground of the decree asked from it." In reversing the decree below the court says that, though the hands of the parties may be unclean, it is the duty of a court of equity to permit them to clean them when it can do so, and not permit such uncleanness to continue as a stench in the nostrils of the people. While the rule is that equity will not entertain persons with unclean hands, yet there are just exceptions thereto, and the statutes of this State have mercifully provided that those who unwittingly enter into a marriage that leads to the continual violation of law, notwithstanding their original sin, may have such relation annulled, so that they may go and sin no more. Such transgressors should get from before the public gaze as quickly as possible.

Commonwealth v. Lane, 113 Mass. 458, 18 Am. Rep. 509, and State v. Brown, 47 Ohio State 102, 23 Northeastern Reporter 747, 21 Am. St. Rep. 790 are cited.

MASSEUR. (PRACTICE OF MEDICINE-WHAT CON STITUTES.)

NORTH CAROLINA SUPREME COURT.

In State . Biggs, 46 Southeastern Reporter 401, the defendant appealed from a conviction of practising medicine and surgery without a license. The jury found that he administered massage, baths, and physical culture, manipulated muscles and bones, and advised his patients what to eat,-all this without use of drugs.

The North Carolina Code, section 3124, requires that applicants for license to practise medicine or surgery shall stand an examination in anatomy, physiology, and various other branches. Laws, 1885, p. 180, ch. 117. §2 made guilty of a misdemeanor any one who "shall begin the practice of medicine or surgery. . . for tee or reward," without such license.

Acts 1903, p. 1074, ch. 697, defines the expression, "practice of medicine and surgery," as meaning the management for fee or reward of any case of disease, physical or mental, real or imaginary, with or without drugs, surgical operation, surgical or mechanical appliances or by any other method whatsoever."

It is this last statute that is particularly assailed, and which the court declares to be unconstitutional as conferring a monopoly. The court says that it is forbidden to relieve a case of suffering, physical or mental, in any method unless one is an M. D. It is not even admissible to "minister to a mind diseased" in any method, or even dissipate an attack of the "blues," without that, label duly certified. It asks whether it is requisite that a man who treats a diseased ear should really be competent in obstetrics, or whether it is penal to treat a disease of the eye unless the operator understands chemistry, or whether it is ind'ctable to remove corns or to plug teeth without a full knowledge of the materia medica, or to apply a fomentation without being able to "pass up" on therapeutics, or sell a little herb tea for the stomachache without being scientifcally versed in pathology and physiology.

Christian Scientists are permitted to cure

diseases without passing an examination. By what process of reasoning can massage, baths, and the defendant be excluded? In the cure of bodies as in the cure of souls, "Orthodoxy is my doxy, heterodoxy is the other man's doxy." This is a free country and any man has a right to be treated by any system he chooses.

The court quotes the saying of Dr. Oliver Wendell Holmes, that if the whole materia medica were sunk to the bottom of the sea it would be all the better for mankind, and all the worse for the fishes, and also an eminent medical authority of North Carolina to the effect that out of twenty-four serious cases of disease, three could not be cured by the best remedies, three others might be benefited and the rest would get well anyway.

MALICIOUS PROSECUTION. (PROBABLE CAUSE -EXISTENCE OF COUNTERCLAIM.)

NEW YORK SUPREME COURT.

In Coleman v. Botsford, 85 New York Supplement 1, the fact that one brings an action on a valid claim, knowing that the defendant has a valid counterclaim for a greater sum, is declared not to make the action malicious, for want of probable cause. The court says that such an action cannot be deemed to have been instituted without probable cause, even though plaintiff was aware that if he sued, defendant could counterclaim her demand and obtain a judgment against him for the balance. The sole action which he prosecuted was to recover his own claim, and concededly he had a right to recover. It is true that the defendant would set up her claim against him and so judgment and execution would go in her favor instead of against her. But still plaintiff would by the very judgment so rendered have recovered upon his claim, and the action which he commenced would result in his favor to the full extent of the claim for which it was brought. Besson v. Southard, 10 N. Y. 236; and Anderson v. How, 116 N. Y. 336, 338, 22 Northeastern Reporter 695, and cited on the point that both malice and want of probable cause must unite to sustain the action.

MONOPOLIES. (SALE OF UNCOPYRIGHTED BOOKS -PROTECTION OF PRICE OF COPYRIGHTED BOOKS) NEW YORK COURT OF APPEALS.

In Straus v. American Publishers' Association, 69 Northeastern Reporter 1107, an association of book publishers formed to protect the price of copyrighted books, but refusing to sell them or any books to dealers who cut the price, or permitted their customers to do so, is held illegal.

It is conceded that the copyright law creates a monopoly, and that, indeed, this is its very essence, but the refusal to sell books of any sort to dealers who cut the price on the copyrighted article is held to make the agreement a violation of Laws of 1899, c. 690, p. 1514, § 1, providing that every contract, agreement, or combination, whereby a monopoly in the manufacture or sale of an article of common use may be created or maintained, or whereby competition in the supply or price of such article may be restricted or prevented, or whereby the free pursuit of any lawful business is restricted or prevented for the purpose of maintaining a monopoly, is against public policy and void.

Park & Sons Co. Case, 175 N. Y. 1, 67 Northeastern Reporter 136, 62 L. R. A. 632, is distinguished. In a lengthy dissenting opinion Judge Gray thinks that the Park case is controlling and that the agreement should be upheld. Judge Bartlett agrees with Judge Gray, saying, "This case discloses one of the saddest phases of our modern business life. It is a well-known fact that the greatest department stores of the country have encroached upon many lines of trade, entirely distinct from the main and legitimate business in which they are engaged. As an illustration, a dry goods establishment, engaged in selling a vast number of articles legitimately related to its business, concludes, in order to promote its principal trade, to offer for sale books, furniture, druggists' sundries, and numerous other articles that need not be mentioned, at cut prices, representing only the cost of production, and oftentimes far below it. . . . The result is that a large number of the retail dealers in